Exhibit
10.12


 


LEASE AGREEMENT


 


By


 


and


 


Between


 


Dairy Drive, LLC,


 


as Landlord


 


and


 


INO Therapeutics LLC,


 


as Tenant


 

















 


	
  ARTICLE I

  	
  PREMISES AND TERM

  	
   

  	
  1

  
	
  1.1

  	
  Leased Premises; Parking; Signage

  	
   

  	
  1

  
	
  1.2

  	
  Commencement of Lease and Term of Lease

  	
   

  	
  1

  
	
  1.3

  	
  Lease Year

  	
   

  	
  2

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  REPRESENTATIONS AND WARRANTIES

  	
   

  	
  2

  
	
  2.1

  	
  Landlord’s Representations and Warranties

  	
   

  	
  2

  
	
  2.2

  	
  Tenant’s Representations and Warranties

  	
   

  	
  3

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  DEVELOPMENT OF THE PREMISES

  	
   

  	
  3

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  RENT; SECURITY DEPOSIT

  	
   

  	
  3

  
	
  4.1

  	
  Base Monthly Rent

  	
   

  	
  3

  
	
  4.2

  	
  Net Lease

  	
   

  	
  4

  
	
  4.3

  	
  Additional Rent

  	
   

  	
  4

  
	
  4.4

  	
  Operating Costs

  	
   

  	
  4

  
	
  4.5

  	
  Security Deposit

  	
   

  	
  5

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  RENEWAL OPTION

  	
   

  	
  6

  
	
  5.1

  	
  Tenant’s Option to Renew

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  TAXES AND ASSESSMENTS

  	
   

  	
  6

  
	
  6.1

  	
  Payment Generally

  	
   

  	
  6

  
	
  6.2

  	
  Apportionment

  	
   

  	
  7

  
	
  6.3

  	
  Special Assessments

  	
   

  	
  7

  
	
  6.4

  	
  No Obligation to Pay Landlord’s Taxes

  	
   

  	
  7

  
	
  6.5

  	
  Permitted Contests

  	
   

  	
  7

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
  USE

  	
   

  	
  7

  
	
  7.1

  	
  Use of Premises

  	
   

  	
  7

  
	
  7.2

  	
  Compliance with Law

  	
   

  	
  8

  
	
  7.3

  	
  Environmental Matters

  	
   

  	
  8

  
	
  7.4

  	
  Rules and Regulations

  	
   

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
  ALTERATIONS

  	
   

  	
  11

  
	
  8.1

  	
  Procedural Requirements

  	
   

  	
  11

  
	
  8.2

  	
  Performance of Alterations

  	
   

  	
  11

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
  LANDLORD’S AND TENANT’S PROPERTY

  	
   

  	
  11

  
	
  9.1

  	
  Landlord’s Property

  	
   

  	
  11

  
					



 


1

















 


	
  9.2

  	
  Tenant’s Property

  	
   

  	
  11

  
	
  9.3

  	
  Removal of the Tenant’s Property

  	
   

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
  REPAIRS AND MAINTENANCE; UTILITIES

  	
   

  	
  12

  
	
  10.1

  	
  Landlord Representation and Responsibilities

  	
   

  	
  12

  
	
  10.2

  	
  Tenant Responsibilities

  	
   

  	
  13

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XI

  	
  INSURANCE

  	
   

  	
  13

  
	
  11.1

  	
  Insurance to be Maintained by Tenant

  	
   

  	
  13

  
	
  11.2

  	
  Insurance to be Maintained by Landlord

  	
   

  	
  14

  
	
  11.3

  	
  Release and Waiver of Right of Recovery

  	
   

  	
  15

  
	
  11.4

  	
  Failure to Provide Insurance

  	
   

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XII

  	
  DAMAGE OR DESTRUCTION

  	
   

  	
  15

  
	
  12.1

  	
  Notification

  	
   

  	
  15

  
	
  12.2

  	
  Total Destruction

  	
   

  	
  16

  
	
  12.3

  	
  Repair Provisions

  	
   

  	
  16

  
	
  12.4

  	
  Rental Abatement

  	
   

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIII

  	
  EMINENT DOMAIN

  	
   

  	
  16

  
	
  13.1

  	
  Notification

  	
   

  	
  16

  
	
  13.2

  	
  Total Taking

  	
   

  	
  17

  
	
  13.3

  	
  Partial Taking

  	
   

  	
  17

  
	
  13.4

  	
  Rental Abatement

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIV

  	
  LANDLORD’S ACCESS RIGHTS

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XV

  	
  SURRENDER AND HOLDOVER

  	
   

  	
  18

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XVI

  	
  RECORDATION; SUBORDINATION AND ATTORNMENT

  	
   

  	
  18

  
	
  16.1

  	
  Recordation of Lease

  	
   

  	
  18

  
	
  16.2

  	
  Subordination and Attornment

  	
   

  	
  18

  
	
  16.3

  	
  Attornment

  	
   

  	
  18

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XVII

  	
  ASSIGNMENT AND SUBLETTING

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XVIII

  	
  EVENTS OF DEFAULT

  	
   

  	
  19

  
	
  18.1

  	
  Tenant Default

  	
   

  	
  19

  
	
  18.2

  	
  Landlord’s Rights Upon Event of Default of Tenant

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIX

  	
  REMEDIES

  	
   

  	
  20

  
	
  19.1

  	
  Landlord’s Remedies

  	
   

  	
  20

  
	
  19.2

  	
  Landlord’s Damages

  	
   

  	
  20

  
					



 


2

















 


	
  19.3

  	
  Removal of Tenant’s Property

  	
   

  	
  20

  
	
  19.4

  	
  Remedies Cumulative

  	
   

  	
  21

  
	
  19.5

  	
  Mitigation of Damages

  	
   

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XX

  	
  TENANT SELF-HELP

  	
   

  	
  21

  
	
  20.1

  	
  Self-Help Events

  	
   

  	
  21

  
	
  20.2

  	
  Tenant Rights

  	
   

  	
  21

  
	
  20.3

  	
  Landlord’s Reimbursement Obligation

  	
   

  	
  21

  
	
  20.4

  	
  Rights Cumulative

  	
   

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XXI

  	
  LIABILITY AND INDEMNIFICATION

  	
   

  	
  22

  
	
  21.1

  	
  Limitation of Liability

  	
   

  	
  22

  
	
  21.2

  	
  Tenant Indemnification

  	
   

  	
  22

  
	
  21.3

  	
  Landlord Indemnification

  	
   

  	
  22

  
	
  21.4

  	
  Limitations on Indemnifications, Damages and Claims

  	
   

  	
  23

  
	
  21.5

  	
  Additional Limitation of Landlord’s Liability

  	
   

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XXII

  	
  QUIET ENJOYMENT

  	
   

  	
  23

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XXIII

  	
  BROKER

  	
   

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XXIV

  	
  ESTOPPEL CERTIFICATES

  	
   

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XXV

  	
  MISCELLANEOUS

  	
   

  	
  24

  
	
  25.1

  	
  Merger

  	
   

  	
  24

  
	
  25.2

  	
  Notices

  	
   

  	
  24

  
	
  25.3

  	
  Non-Waiver

  	
   

  	
  25

  
	
  25.4

  	
  Parties Bound

  	
   

  	
  25

  
	
  25.5

  	
  Governing Law; Construction

  	
   

  	
  25

  
	
  25.6

  	
  Defined Terms; Word Usage; Headings

  	
   

  	
  26

  
	
  25.7

  	
  Time; Business Day

  	
   

  	
  26

  
	
  25.8

  	
  Exhibits; Counterparts

  	
   

  	
  26

  
	
  25.9

  	
  Relationship Between Landlord and Teanat

  	
   

  	
  26

  
	
  25.10

  	
  Entire Agreement

  	
   

  	
  26

  
	
  25.11

  	
  Partial Invalidity

  	
   

  	
  26

  
	
  25.12

  	
  Enforcement of Provisions

  	
   

  	
  27

  
	
  25.13

  	
  Limitation of Remedies

  	
   

  	
  27

  
	
   

  	
   

  	
   

  	
   

  
	
  EXHIBIT A LEGAL DESCRIPTION OF THE LAND

  	
   

  	
  1

  
					



 


3

















 


	
  EXHIBIT B WORK LETTER

  	
   

  	
  1

  
	
   

  	
   

  	
   

  
	
  EXHIBIT C MEMORANDUM OF LEASE

  	
   

  	
  1

  
	
   

  	
   

  	
   

  
	
  EXHIBIT D SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT

  	
   

  	
  1

  
	
  EXHIBIT E RULES AND REGULATIONS

  	
   

  	
  1

  



 


4

















 


LEASE AGREEMENT


 


THIS LEASE AGREEMENT (this “Lease”) is made this 24 day of April, 2008,
by and between Dairy Drive, LLC a Wisconsin limited liability company (“Landlord”), and INO Therapeutics LLC, a
Delaware limited liability company (“Tenant”).


 


Background


 


Landlord is the owner of
that certain land located at 2902 Dairy Drive, Madison, Wisconsin 53718, which
land is more particularly described on Exhibit A attached hereto
(the “Land”).  Landlord has developed on the Land a 14,640
square foot freestanding building (the “Building”)
and related driveways, walkways, a parking lot, landscaping, drainage
facilities, signage and other site improvements necessary to support the
Building (collectively, the “Site
Improvements”), for Tenant’s use and occupancy.


 


Agreement


 


NOW, THEREFORE, intending to
be legally bound, Landlord and Tenant hereby agree as follows:


 


ARTICLE I


 


PREMISES AND TERM


 


1.1           Leased Premises; Parking; Signage.  Landlord hereby leases and demises to Tenant,
and Tenant hereby takes and hires from Landlord, upon and subject to the terms,
covenants, provisions and conditions of this Lease, the Land, the Building, the
Building Improvements (as defined in the Work Letter), and the Site
Improvements (collectively, the “Premises”).  The leasing of the Premises to Tenant
includes, with no additional rent or other charge payable therefor, the
exclusive right of Tenant (a) to enjoy all easements, rights, privileges
and other appurtenances in any way pertaining to or beneficial to the Land, (b) to
use the surface parking spaces to be constructed as part of the Site
Improvements, and (c) to erect building mounted signage at its sole cost
and expense subject to municipal approval and Landlord’s prior consent which
shall not be unreasonably conditioned, withheld or delayed.


 


1.2           Commencement of Lease and Term of
Lease.  The term of this Lease (the “Term”) shall commence on the date the
Premises is Substantially Complete (as defined in the Work Letter) but no
earlier than July 1, 2008 (the “Commencement
Date”), and end on the last day of the month in which the fifth
anniversary of the Commencement Date occurs (the “Expiration Date”).


 


1.3           Lease Year.  For the purposes of this Lease, the first “Lease Year” shall be the period commencing
on the Commencement Date and ending on the date which is twelve (12) months
after the last day of the month in which the Commencement Date occurs, and each
subsequent “Lease Year” shall be the twelve (12) month period next following
the expiration of the prior Lease Year.


 

















 


ARTICLE II


 


REPRESENTATIONS AND WARRANTIES


 


2.1           Landlord’s Representations and
Warranties.  Landlord, to induce
Tenant to enter into this Lease and to lease the Premises from Landlord,
represents and warrants to Tenant as of the date hereof as follows:


 


(a)           Due
Organization, Etc.  Landlord is duly
organized, validly subsisting and in good standing under the laws of the
jurisdiction in which it was formed, with all legal power and authority to
undertake, observe and perform all of Landlord’s agreements and obligations
hereunder;


 


(b)           Authority.  The entry by Landlord into this Agreement,
and the observance and performance of each of Landlord’s agreements and obligations
hereunder, have been duly approved by all necessary action on the part of
Landlord.  This Lease constitutes the
valid and binding obligations of Landlord, enforceable in accordance with its
terms;


 


(c)           No
Conflicts, Etc.  The execution and
delivery of this Lease by Landlord and Landlord’s compliance with the
provisions hereof will not conflict with or constitute a breach of, or a
default under, (i) any of the provisions of Landlord’s organizational
documents or any other agreement by which Landlord is bound, or (ii) applicable
law, rule, regulation or order of any court, administrative agency, bureau,
board, commission, office, authority, department or other governmental entity;


 


(d)           No
Consents, Etc.  No consent, approval
or other authorization of or by any court, administrative agency or other
governmental or quasi-governmental authority is required in connection with the
execution and delivery of or compliance with this Lease by Landlord;


 


(e)           Litigation.  There are no judgments, orders, suits, actions,
garnishments, attachments or proceedings of any nature by or before any court,
commission, board or other governmental body pending, or, to the best knowledge
of Landlord, threatened, which involve or affect, or will involve or affect,
the Premises or the validity or enforceability of this Lease or involve any
risk of any judgment or liability being imposed upon Landlord that could
adversely affect the financial condition of Landlord or Landlord’s ability to
observe or perform fully its agreements and obligations hereunder;


 


(f)            No
Other Agreements.  There is no
existing agreement, commitment, option or right with, in or to any person to
lease or otherwise transfer all or any portion of the Land, other than the
leasing of the Premises pursuant to this Lease;


 


(g)           Title.  Landlord holds full legal and equitable fee
simple absolute title to the Land as of the date of this Lease;


 


(h)           Regulatory
Compliance.  Landlord has no
knowledge of any notice from any governmental authority of any violations of
any federal, state or local law, regulation 


 


2

















 


or
ordinance affecting any portion of the Land. 
The current zoning classification of the Land is M-l.  The Land constitutes one single parcel of
real estate created by a valid subdivision (to the extent legally required) in
compliance with all applicable laws, regulations and ordinances.  The Landlord shall ensure that the Premises
shall comply, as of the Commencement Date, with all applicable federal, state
and local laws, ordinances and regulations, including Americans with
Disabilities Act, all environmental laws and all applicable building, safety
and fire codes;


 


(i)            Access.  The Land will have direct access to the
dedicated and accepted public roads known as “Dairy Drive” and “Daniels Street,”
and this Lease is the only instrument necessary to convey to Tenant all rights
to enjoy direct access to such roads;


 


(j)            Expertise.  Landlord (i) is a sophisticated real
estate developer that fully understands Landlord’s obligations hereunder, and (ii) has
extensive experience in developing projects similar to the Premises;


 


(k)           Non-Disclosure.  Landlord knows of no facts or circumstances,
nor has Landlord failed to disclose any fact or circumstance, which would
hinder or prevent the development or the Use (as defined herein) of the
Premises.


 


For purposes of this Article II,
the knowledge of Landlord is limited to the best actual knowledge of Lee
Ferderer.  Landlord represents and
warrants that Lee Ferderer is the Senior Vice President, Corporate Counsel of
Landlord, has the most knowledge of Landlord’s employees/agents and is most
familiar with the Premises and the operations thereof to make the foregoing
representations and warranties.


 


2.2           Tenant’s Representations and
Warranties.  Tenant represents and
warrants to Landlord as of the date hereof as follows:


 


(a)           Due
Organization, Etc.  Tenant is duly
organized, validly subsisting and in good standing under the laws of the
jurisdiction in which it was formed, with all legal power and authority to
undertake, observe and perform all of Tenant’s agreements and obligations
hereunder;


 


(b)           Authority.  The entry by Tenant into this Agreement, and
the observance and performance of each of Tenant’s agreements and obligations
hereunder, have been duly approved by all necessary action on the part of
Tenant.  This Lease constitutes the valid
and binding obligations of Tenant, enforceable in accordance with its terms;


 


(c)           No
Conflicts, Etc.  The execution and
delivery of this Lease by Tenant and Tenant’s compliance with the provisions
hereof will not conflict with or constitute a breach of, or a default under, (i) any
of the provisions of Tenant’s organizational documents or any other agreement
by which Tenant is bound, or (ii) applicable law, rule, regulation or
order of any court, administrative agency, bureau, board, commission, office,
authority, department or other governmental entity;


 


(d)           No
Consents, Etc.  No consent, approval
or other authorization of or by any court, administrative agency or other
governmental or quasi-governmental authority 


 


3

















 


is
required in connection with the execution and delivery of or compliance with
this Lease by Tenant;


 


(e)           Litigation.  There are no judgments, orders, suits,
actions, garnishments, attachments or proceedings of any nature by or before
any court, commission, board or other governmental body pending, or, to the
best knowledge of Tenant, threatened, which involve or affect the validity or enforceability
of this Lease or involve any risk of any judgment or liability being imposed
upon Tenant that could adversely affect the financial condition of Tenant or
Tenant’s ability to observe or perform fully its agreements and obligations
hereunder;


 


ARTICLE III


 


DEVELOPMENT OF THE PREMISES


 


Landlord shall develop the
Premises in accordance with the work letter attached to this Lease as Exhibit B
(the “Work Letter”).


 


ARTICLE IV


 


RENT; SECURITY DEPOSIT


 


4.1           Base Monthly Rent.  Tenant shall pay to Landlord as base monthly
rent (“Base Monthly Rent”) an
amount equal to $11,834.00.  Base Monthly
Rent shall be payable by Tenant to Landlord in advance in equal monthly
installments commencing upon the Commencement Date and on the first day of each
calendar month thereafter during the term of this Lease, without any offset or
deduction whatsoever or prior demand. 
All payments of Base Monthly Rent will be made to Landlord at its office
or at such other place as it may designate in writing.  Base Monthly Rent for any partial month shall
be prorated based upon the actual number of days in the period subject to
proration.  Effective on the first day of
each subsequent Lease Year, including any option or extension terms, Tenant
shall pay Landlord, in equal monthly installments, an amount equal to the total
Base Monthly Rent for the preceding Lease Year plus the product obtained by
multiplying that sum by three percent (3%).


 


4.2           Net Lease.  It is intended that the Base Monthly Rent
provided in this Lease shall be a net return to Landlord for the Term, free of
any and all expenses or charges with respect to the ownership and operation of
the Premises, except as may be expressly provided in this Lease.


 


4.3           Additional Rent.  All sums other than Base Monthly Rent payable
by Tenant under this Lease shall be considered “Additional Rent.”  The
term “Rent”, as used herein, shall
include both Base Monthly Rent and Additional Rent.


 


4.4           Operating Costs.  From
and after the Commencement Date, Tenant shall pay as Additional Rent to
Landlord 100% of the Operating Costs (as defined herein).  Tenant shall pay estimated Operating Costs
monthly as Additional Rent due and payable on the same day as Base Monthly Rent
with an annual reconciliation of Operating Costs taking place within 120 days
of the end of the calendar year.  The
term “Operating Costs” means all
costs, expenses and disbursements of every kind and nature paid or incurred by
the Landlord, or otherwise on behalf 


 


4

















 


of
the Landlord, in connection with the ownership, operation, management of the
Premises and the maintenance, replacement and repair of the non-structural
components of the Building, all of which will be determined by Landlord on an
accrual basis.  Operating Costs will
include, without limiting the generality of the foregoing, the following: (i) maintenance
and service agreements for the Premises and the equipment therein, including,
but not limited to, security services or alarm services, if any, and HVAC
maintenance; and all such other expenses and costs necessary or desirable to be
incurred for the operation of the Premises; (ii) personal property taxes
of Tenant; (iii) insurance maintained by Landlord in connection with the
Premises; (iv) amortization of capital costs or expenditures incurred for
any repair or replacement to the Premises (including any capital expenditure
reasonably necessary for the operation and maintenance of the Premises, or
required by law or any governmental authority), together with interest thereon
at the rate of seven percent (7%) per annum, on a straight-line basis over the
greater of ten (10) years or its useful life utilized for federal income
tax purposes, and only annual amortization of such improvement shall be
included in Operating Costs for the relevant Operating Costs year; and (v) real
estate taxes.


 


Notwithstanding the foregoing, Operating Costs shall
not include (i) the costs of special services rendered to Tenant for which
a special or separate charge is made; (ii) any initial cost of
construction of the Building Improvements and Site Improvements; (iii) leasing
commissions; (iv) depreciation (except amortization of capital
expenditures which are allocated over the useful life of said expenditure as
described in this Section); (v) any cost of capital improvements that
enlarge or expand the existing Building (except any such expenditures required
by law or by any governmental or quasi-governmental authority having
jurisdiction over the Building); (vi) repairs paid by proceeds of insurance
(except the deductible and that portion not covered by insurance); (viii) ground
rental payments, (ix) interest payments; (x) debt service payments
made to a mortgagee; (xi) any costs borne directly by Tenant under this Lease,
including attorneys fees and disbursements incurred in leasing space or
enforcing leases; (xii) attorneys’ fees and related expenses, court costs and
other costs of collection incurred by Landlord because another tenant of the
Premises violated the terms of such tenant’s lease agreement or to secure the
defense of Landlord’s title to the Premises; (xiii) overhead and profit paid to
Landlord’s subsidiaries or affiliates for management or other services on or to
the Premises or for supplies or other materials, to the extent that such costs
of services, supplies or materials exceed the competitive costs of comparable
services, supplies or materials if they were provided by a person or entity
that is not a subsidiary or affiliate of Landlord; (xiv) any costs, fines or
penalties incurred because Landlord violated any governmental rule or
authority or arising out of Landlord’s negligence, willful misconduct, or
breach of any law; (xv) costs incurred to test, survey, cleanup, contain,
abate, remove or otherwise remedy Hazardous Materials from the Premises,
including asbestos and Hazardous Materials in the ground water or soil, unless
such Hazardous Materials were in or on the Premises because of Tenant’s
negligence or intentional acts; (xvi) incomes, excess profits or franchise
taxes or other such taxes imposed on or measured by the income of Landlord from
the operation of the Premises; (xvii) penalties and interest for late payment,
including, but not limited to, taxes, real estate taxes, insurance, equipment
leases and other past due amounts, unless such penalty and interest are
otherwise described herein as an obligation of Tenant; (xviii) financing and
refinancing costs and any costs in connection with a transfer or sale of the
Premises; (xix) lease concessions, including rental abatements and construction
allowances, granted to specific tenants; (xx) organizational expenses
associated with the creation and operation of the entity which constitutes
Landlord and all general corporate overhead and 


 


5

















 


general administrative expenses not related to the
operation of the Premises; and (xxi) any costs incurred for any structural
repairs to the Premises.


 


4.5           Security Deposit.  Tenant will deposit with Landlord upon
execution hereof the sum of $35,502.00 Said deposit will be held by Landlord,
with right of cominglement and use, and without liability for interest or duty
to render accounting, as security for the faithful performance by Tenant of all
terms, covenants and conditions of this Lease by Tenant to be kept and
performed during the term hereof.  If
Tenant fails to keep and perform any of the terms, covenants and conditions of
this Lease, then upon five (5) days prior written notice to Tenant
Landlord may apply said deposit, or so much thereof as may be reasonably
necessary to compensate Landlord for loss or damage sustained or suffered by
Landlord due to such breach on the part of Tenant.  Should the entire deposit, or any portion
thereof, be so applied by Landlord, then Tenant will, upon Landlord’s prior
written demand, forthwith remit to Landlord a sufficient sum to restore said
security to the original sum deposited, and Tenant’s failure to do so within
thirty (30) days after receipt of such written demand therefore will constitute
a breach of this Lease.  Should Tenant
comply with all of said terms, covenants and conditions and promptly pay all of
the Rents herein provided for as they fall due, and all other sums payable by
Tenant hereunder, said deposit will be returned in full to Tenant at the end of
the Term of this Lease within thirty (30) days.


 


ARTICLE V


 


RENEWAL OPTION


 


5.1           Tenant’s Option to Renew.  Landlord hereby grants to Tenant two (2) options
(each, a “Renewal Option”) to
extend the Term for an additional period of three (3) years (each , a “Renewal Term”).  If a Renewal Option is exercised, the Renewal
Term shall commence on the day next following the expiration of the initial
Term or the first or second Renewal Term, as the case may be, and the “Expiration Date” shall become the date that
is three (3) years after the expiration of the initial Term or the first
or second Renewal Term, as the case may be. 
Each Renewal Option must be exercised, if at all, by written notice from
Tenant to Landlord given on or before the date that is 270 days prior to the
then effective Expiration Date.  All
terms, provisions and conditions contained in this Lease shall continue to
apply during a Renewal Term and all references in this Lease to the Term shall
be deemed to include (where the context requires) the applicable Renewal Term,
if the applicable Renewal Option is exercised.


 


ARTICLE VI


 


TAXES AND ASSESSMENTS


 


6.1           Payment Generally.


 


(a)           Landlord
shall pay all taxes, including municipal and school taxes, assessments, rates
and charges, county taxes, excises, levies, and all other license and permit
fees and other governmental charges, which during the Term may be assessed,
levied, confirmed, imposed upon, or become due and payable with respect to the
Premises or any part thereof (all of which are hereinafter collectively called “Taxes”).


 


6














 


Tenant
shall pay to Landlord on the same day in which Tenant pays the Base Monthly
Rent, an amount equal to one-twelfth (1/12th) of such Taxes, determined on the basis of the
Landlord’s estimated taxes for the current tax year.  If the actual amount of Tenant’s share of
Taxes with respect to any tax year once determined, is less than the total
amount theretofore paid by Tenant for such period, as aforesaid, the excess
shall be credited on Tenant’s next succeeding payment(s) pursuant to this
Section.  If the actual amount of Tenant’s
share of Taxes with respect to any tax year, once determined, shall exceed the
total amount theretofore paid by Tenant for such period, as aforesaid, Tenant
shall pay to Landlord the difference between the actual amount paid by Tenant
and the amount due on the basis of such tax bills for such period within thirty
(30) days after written notice thereof from Landlord.  If the amount of Taxes paid by Landlord for
the Premises is adjusted after the tax bill is prepared, any reduction shall be
refunded to Tenant such that Tenant’s payment equals the tax as actually paid.


 


(b)           In the event that an increase in Taxes is caused by
the Tenant’s improvements made to the Premises, Tenant shall pay the increase
attributable to such improvements.  If
the improvements, the taxes for which are to be paid separately by Tenant, are
not separately assessed, Tenant’s portion of that tax shall be equitably
determined by Landlord from the respective valuations assigned in the assessor’s
worksheets or such other information (which may include the cost of
construction) as may be reasonably available. 
Notwithstanding anything herein to the contrary, Tenant shall not be
responsible for any increase in Taxes which results solely from the creation of
additional rentable area in the Building or on the Premises or from
improvements or alterations made by Landlord or other tenants, and Tenant shall
not be responsible for any increases in Taxes for the Premises resulting from a
refinancing or sale of the Premises during the initial Term.  If there is a tax abatement program in effect
at any time during the Term which reduces Taxes or Taxes are “phased-in” during
the Term, Taxes shall be adjusted so that they are computed on the same basis
as Taxes for the tax years during which the tax abatement or phase-in is in
effect.  If Tenant seeks to dispute any
increase in Taxes on its improvements, the burden of proof with respect thereto
shall fall solely upon Tenant and Landlord shall give Tenant the necessary
authority to challenge any such assessment on Landlord’s behalf, and Tenant
shall bear the full cost and expense of any such challenge.


 


6.2           Apportionment.  All Taxes which shall be charged, laid,
levied, assessed or imposed for each fiscal period in which the Term begins or
terminates shall be apportioned pro rata between Landlord and Tenant in
accordance with the portion of the relevant fiscal period during which the Term
shall be in effect.  In the event that
any payment of Taxes is due after the expiration of the Term with respect to a
fiscal period that includes part of the Term, Tenant shall pay to Landlord
Tenant’s proportionate share thereof (based upon the portion of the fiscal
period that was included in the Term) at least ten (10) days prior to the
date that payment is due with the maximum discount.  The foregoing covenant of this Section 6.2
shall survive the expiration of the Term.


 


6.3           Special Assessments.  If any special assessment with respect to the
Premises may be paid in installments, Tenant shall be obligated to pay only
those installments which become due and payable during the Term.


 


7

















 


6.4           No Obligation to Pay
Landlord’s Taxes.  Nothing
herein contained shall require or be construed to require Tenant to pay any
transfer, recording, inheritance, estate, succession, franchise, excise,
business privilege, income, gross receipts or profit tax, or capital levy that
is or may be imposed upon Landlord.


 


6.5           Permitted Contests.  Tenant shall have the right to contest any
increase in any Taxes levied against the Premises, and Landlord shall cooperate
with any reasonable request by Tenant in connection with such contest and
permit Landlord’s name to be used in such contest, to the extent reasonably
necessary.


 


ARTICLE VII


 


USE


 


7.1           Use of Premises.  The Premises may be used for the operation of
a research and development facility (including, but not limited to, development
of medical devices including assembly and light manufacturing, and storage and
use of compressed gases) and such other uses as may be incidental thereto or
for any other use or purpose permitted by the applicable zoning authority from
time to time and otherwise by law (“Use”).  Nothing herein shall be deemed to require
Tenant to continuously operate in the Premises.


 


7.2           Compliance with Law.  Except as otherwise set forth herein, Tenant
agrees that during the Term, Tenant will, at its expense, promptly comply with
the following: (a) all applicable federal, state, county, city and
municipal or other statutes, charters, laws, rules, orders, regulations and
ordinances affecting Tenant’s occupancy and, use of the Premises (collectively,
“Laws”); (b) all rules,
orders, and regulations of all public officers including the police, health and
fire departments; and (c) the requirements of all insurance companies
having liability, fire and other insurance coverages in force and effect with
respect to Tenant’s use and occupancy of the Premises.  Tenant shall give prompt notice to Landlord
of any notice it receives of the violation of any of the foregoing.  Tenant shall have the right, however, to
contest any application or alleged violation of any of the foregoing, and
Landlord shall cooperate with any reasonable request by Tenant in connection
with such contest and permit Landlord’s name to be used in such contest, to the
extent reasonably necessary. 
Notwithstanding the foregoing, Tenant shall in no event have any
obligation to make any repair or replacement which would otherwise be Landlord’s
responsibility under Section 10.1 of this Lease, even if such repair or
replacement is required in order to comply with Laws; Landlord and Tenant
hereby agree that Landlord shall make any and all repairs and replacements for
which Landlord is responsible under Section 10.1 in order for the Premises
and the use, occupancy and repair thereof to comply with all Laws, as required
hereby.


 


7.3           Environmental Matters.


 


(a)           Definitions.  For purposes of this Section 7.3, the
following terms shall have the following meanings:


 


(i)            “Environmental Law”
means any federal, state, or local statute, law, order, regulation, ordinance,
constitution, agreement, permit, or decision 


 


8

















 


relating
to pollution or protection of human health, safety or the environment, as well
as any principles of common law under which a person may be held liable for the
Release of any Hazardous Substance into the environment.


 


(ii)           “Hazardous
Substance” means any gaseous, liquid or solid chemical, material,
substance, contaminant or waste that may or could pose a hazard to the
environment or human health or safety, including (a) any “hazardous
substances” as defined by the federal Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. §9601 et seq., (b) any “extremely
hazardous substance,” “hazardous chemical,” or “toxic chemical” as those terms
are defined by the federal Emergency Planning and Community Right-to-Know Act,
42 U.S.C. § 11001 et seq., (c) any “hazardous waste,” as defined under the
federal Solid Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act, 42 U.S.C. § 6901 et seq., (d) any “pollutant,” as defined
under the federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq., (e) any
chemical, material, substance, contaminant or waste, whether gaseous, liquid or
solid, that is regulated under any Environmental Law, and (f) any
asbestos, polychlorinated biphenyls (“PCB’s”), petroleum, petroleum products
and urea formaldehyde and mold.


 


(iii)          “Release”
means any release, spill, emission, leaching, leaking, migration, dumping,
emptying, pumping, injection, deposit, disposal, discharge or dispersal of any
Hazardous Substance into the indoor or outdoor environment, or into, on, or
from any property.


 


(iv)          “Remedial Action”
means any action required by Environmental Law to address a Release of
Hazardous Substances, including, but not limited to, investigations, abatement,
corrective actions, response actions, removal actions, or remediation.


 


(b)           Tenant Activities.  Tenant shall, at its own cost, comply with
all Environmental Laws in connection with Tenant’s operations or activities at
the Premises.


 


(i)            Remedial Action.  If the presence, Release, threat of Release,
placement on or in the Premises or any portion thereof, or the generation,
transportation, storage, treatment, or disposal at, on, in, under or from the
Premises, or any portion thereof of any Hazardous Substance, to the extent
caused by Tenant or any agent or invitee of Tenant during the Term (a) gives
rise to liability (including, but not limited to, a Remedial Action) under
Environmental Laws or (b) pollutes, or threatens to pollute the
environment, Tenant shall promptly take, at Tenant’s sole cost and expense, any
and all Remedial Action reasonably necessary to respond to such Hazardous
Substances, and mitigate exposure to liability arising from the Hazardous
Substance, if and to the extent required by Environmental Law.


 


9

















 


(ii)           Tenant shall have the right, but not the obligation,
to perform an environmental assessment of the Premises, at any time, including
on or about the expiration of the Term.


 


(c)           Landlord Activities.


 


(i)            Landlord shall promptly provide Tenant copies of all
written, non-routine communications, permits or agreements with any
governmental authority or agency (federal, state or local) or any private
entity relating in any way to the presence, Release, threat of Release,
placement on, in or from the Premises, or any portion thereof, or the
generation, transportation, storage, treatment or disposal in, on, or from the
Premises of any Hazardous Substances prior to or during the Term.


 


(ii)           Remedial Action.  If the presence, Release, threat of Release,
placement on, in or from the Premises, or any portion thereof, or the
generation, transportation, storage, treatment or disposal at, on, in, under or
from the Premises, or any portion thereof, of any Hazardous Substance occurring
prior to the Term or not caused by Tenant: (a) gives rise to liability
(including, but not limited, to a Remedial Action) under Environmental Laws or (b) pollutes,
or threatens to pollute the environment, Landlord shall promptly take, at
Landlord’s sole cost and expense, any and all Remedial Action reasonably necessary
to respond to such Hazardous Substances, and mitigate exposure to liability
arising from the Hazardous Substances, if any, to the extent required by
Environmental Laws; provided, however, that any such condition or
activity that results in (a) or (b) which occurs prior to the Term,
and, through no fault of Tenant, continues during the Term, shall be considered
as occurring wholly prior to the Term.


 


(d)           Environmental Indemnification.


 


(i)            Notwithstanding anything to the contrary contained
in this Lease, Landlord hereby indemnifies, defends and holds harmless Tenant,
and its affiliates, partners, directors, officers, shareholders, agents and
employees from and against any and all claims arising from or in connection
with (A) any environmental conditions, including, without limitation, the
presence, Release or threatened Release or placement on, in or from the
Premises, or any portion thereof, of Hazardous Substances, occurring prior to
the Term or not caused by Tenant or any agent, invitee or guest of Tenant, (B) the
violation of any Environmental Laws prior to the Term or by parties other than
Tenant or any agent, invitee or guest of Tenant, or (C) any breach or
default by Landlord in the full payment and/or performance of its obligations
under this Section.  Landlord’s indemnity
obligations under this Section 7.3 shall survive the expiration or any
termination of this Lease.


 


(ii)           Notwithstanding anything to the contrary contained
in this Lease, Tenant hereby indemnifies, defends and holds harmless Landlord,
and its respective partners, directors, officers, shareholders, agents and
employees from 


 


10

















 


and
against any and all claims arising from or in connection with (A) any
environmental conditions on the Premises, including, without limitation, the
presence, Release, or threatened Release or placement on, in or from the
Premises, or any portion thereof, of Hazardous Substances, caused by Tenant
during the Term, (B) the violation of any Environmental Laws by Tenant
during the Term, or (C) any breach or default by Tenant in the full
payment and/or performance of its obligations under this Section.  Tenant’s indemnity obligations under this Section 7.3
shall survive the expiration or any termination of this Lease.


 


7.4           Rules and Regulations.  Tenant will faithfully observe and comply
with the reasonable rules and regulations that Landlord will from time to
time promulgate.  Tenant’s failure to
keep and observe said rules and regulations will constitute a breach of
the terms of this Lease in the same manner as if said rules and
regulations were contained herein as covenants. 
Landlord reserves the right from time to time to reasonably amend,
rescind, and adopt reasonable additional rules and regulations as in its
judgment is necessary for the safety, protection, care and cleanliness of the
Building, the operation thereof, the preservation of good order therein, and
the protection and comfort of its tenants, their agents, employees and
invitees, which rules when made and written notice thereof given to Tenant
will be binding upon Tenant in like manner as if originally herein prescribed.


 


ARTICLE VIII


 


ALTERATIONS


 


8.1           Procedural Requirements.  Tenant may, from time to time, at its own
cost and expense, make such alterations, decorations, additions, or
improvements (collectively, “Alterations”)
in and to the Premises, excluding Major Alterations (as defined below), as
Tenant may consider necessary for the conduct of its business in the
Premises.  In the case of any Alterations
that materially adversely affect the structural integrity of the Building or
any of the electrical, mechanical or plumbing systems of the Building or any
Alteration exceeding $25,000 in cost (collectively, “Major Alterations”), Tenant shall obtain Landlord’s prior
written consent, which consent shall not be unreasonably withheld or delayed
but which may be conditioned on Tenant’s removal of the Major Alteration upon
the lease expiration and restoration of the affected portions of the Premises
to at least as good of a condition as it was prior to making the Major
Alteration; provided, however, that Tenant shall only be obligated to remove,
at the request of Landlord, any Alteration or Major Alteration, exclusive of
the Work Letter, which is unique and specific to the business of Tenant.  In order to obtain Landlord’s prior written
consent for a Major Alteration, Tenant shall obtain Landlord’s approval of the
contractor, the plans and the specifications therefore and Tenant shall acquire
a permit to do the work from appropriate governmental agencies, furnishing a
copy thereof to Landlord prior to commencement of the Major Alteration, and
Tenant shall comply with all conditions of said permit and with all
specifications in the plans in a prompt and expeditious manner.  Landlord shall respond to Tenant’s request to
make a Major Alteration within fifteen (15) days of Landlord’s receipt of the
request.  If Landlord is not willing to
give its consent, Landlord shall provide a written notice to Tenant.  If Landlord fails to respond to Tenant within
the fifteen (15) day period, Landlord will be deemed to have approved the Major
Alteration.


 


11

















 


8.2           Performance of Alterations.  Tenant shall give Landlord prior written
notice before commencing any Alteration, including with such notice a
reasonably detailed description of the Alterations.  Tenant, at its own cost and expense, shall
obtain all necessary governmental permits and certificates for the commencement
and prosecution of Alterations and for the final approval thereof upon
completion, and shall cause the Alterations to be performed in compliance
therewith and in compliance with all Laws. 
Notwithstanding anything herein to the contrary, Tenant shall not be
responsible for compliance with Laws that require structural changes or other
changes to the Building if such changes are not required by the particular
Use.  Tenant shall also procure
appropriate insurance coverage regarding the performance and installation of the
Alterations.  The Alterations shall be
diligently performed in a good and workmanlike manner, using materials and
equipment at least equal in quality and class to the materials and equipment
used in the construction of the Building.


 


ARTICLE IX


 


LANDLORD’S AND TENANT’S PROPERTY


 


9.1           Landlord’s Property.  The Building (including the electrical,
mechanical and plumbing systems of the Building), the Building Improvements and
the Site Improvements shall be and remain a part of the Premises and shall be
deemed the property of Landlord (collectively, the “Landlord’s Property”), without compensation or credit to
Tenant, and shall not be removed by Tenant.


 


9.2           Tenant’s Property.  All fixtures, machinery, equipment and
improvements that do not constitute the Landlord’s Property, whether or not
attached to, or built into, the Building or the Premises, and all furniture,
furnishings, inventory and other articles of movable personal property located
at the Premises shall be and shall remain the property of Tenant (collectively,
the “Tenant’s Property”) and may
be removed by Tenant at any time during the Term.  In the event that any of the Tenant’s
Property is so removed, Tenant shall repair any damage to the Building or the
Premises resulting from such removal and restore the affected portions of the
Building or the Premises to at least as good as a condition as it was prior to
the removal.


 


9.3           Removal of the Tenant’s
Property.  On or
before the Expiration Date or the date of any earlier termination hereof,
Tenant, at its own cost and expense, shall remove from the Premises all of the
Tenant’s furniture, furnishings, inventory and other articles of movable
personal property and any other items of Tenant’s Property, and, to the extent
Tenant has made any Alteration or Major Alteration on the Premises, Tenant may,
at its sole discretion, remove such property from the Premises, provided that
Tenant shall repair any damage to the Premises resulting from any such removal
and restore the affected portions of the Premises to at least as good as a
condition as it was prior to the removal. 
At the end of the Term, Tenant shall have the right, but not the
obligation, to leave any Alteration or Major Alteration that Landlord did not
require to be removed as part of Landlord’s conditioned approval pursuant to Section 8.1
hereof, and any of the Tenant’s Property at the Premises, other than Tenant’s
furniture, furnishings, inventory, trade fixtures, other articles of movable
personal property.  Any of the Tenant’s
Property that Tenant does leave at the Premises may, at the option of Landlord,
be deemed to have been abandoned, and in such case, such items may be retained
by Landlord as its property 


 


12

















 


or
be disposed of by Landlord, without accountability, in such manner as Landlord
shall determine.


 


ARTICLE X


 


REPAIRS AND MAINTENANCE; UTILITIES


 


10.1         Landlord Representation and
Responsibilities.


 


(a)           Throughout the entire Term and any applicable
Renewal Term, Landlord shall, at its sole cost and expense, maintain and
preserve, in working condition, the roof, floor and structural portions of the
Building.  Any replacement and repair to
the heating, ventilation and air conditioning system and any maintenance of the
grounds (including snow removal and trash removal) shall be Landlord’s
responsibility and shall be included in Operating Costs that will be passed on
to Tenant.  To the extent any repair or
replacement constitutes a capital cost or expenditure, such cost will be
amortized as provided in Section 4.4. 
Notwithstanding the foregoing, the cost of performing any such
maintenance and repairs as may be required by reason of Tenant’s, or any of
Tenant’s employees, agents, invitees, licenses and contractors, negligence or
willful misconduct, will be paid by Tenant, at its sole cost and expense.


 


10.2         Tenant Responsibilities.


 


(a)           Tenant shall, at its expense, throughout the Term,
maintain and preserve, in working condition, Tenant’s furniture, furnishings,
inventory, trade fixtures, other articles of movable personal property
thereon.  All repairs and replacements
shall be made with materials of equal or better quality then the items being
repaired or replaced, but under no circumstances shall this Section be
interpreted to require Tenant to improve the condition of the Building or the
Premises to a better condition than existed as of the Commencement Date.


 


(b)           Tenant shall be responsible for contracting for any
janitorial services needed by Tenant including, but not limited to, window
washing.


 


(c)           Tenant shall be solely responsible for the
contracting of gas, electricity, water and all other utilities which Tenant
requires at Tenant’s sole cost and expense. 
Landlord shall in no way be liable or responsible for any loss, damage,
or expense that Tenant may sustain by reason of any disruption, or defect in
the supply or character of any utility service furnished to the Premises,
unless such disruption is caused by Landlord, and no such change, failure,
defect, or unsuitability shall constitute an actual or constructive eviction,
in whole or in part, or entitle Tenant to any abatement or diminution of rent,
or relieve Tenant from any of its obligations under the Lease, unless such
change, failure, defect or disruption is caused by Landlord.


 


13

















 


ARTICLE XI


 


INSURANCE


 


11.1         Insurance to be Maintained
by Tenant.  Tenant
shall, at its cost and expense, at all times during the Term (except as
expressly limited below), obtain and maintain in full force and effect policies
of insurance for the protection of Landlord and Tenant providing the following
coverages and complying with the following requirements:


 


(a)           commercial general liability insurance with a
combined personal injury and property damage limit of not less than One Million
Dollars ($1,000,000) for each occurrence and not less than Two Million Dollars
($2,000,000) in the aggregate for this location, insuring against all liability
of Tenant and its representatives arising out of and in connection with Tenant’s
use, maintenance or occupancy of the Premises and all areas appurtenances
thereto;


 


(b)           Landlord, and other parties designated in writing by
Landlord and having an interest in the Building, will be named as additional
insured and Tenant will increase its insurance coverage as may be required from
time to time if, in Landlord’s reasonable opinion, the amount of public
liability coverage at that time is not adequate;


 


(c)           Tenant will furnish Landlord a certificate
evidencing said insurance, prepared on the ACORD 27 form or other form
reasonably acceptable to Landlord and such policies of insurance will contain
provisions preventing their cancellation, discontinuance or alteration without
at least thirty (30) days’ prior written notice to Landlord;


 


(d)           the insurance secured by Tenant will insure
performance by Tenant of the indemnity provisions of this Lease to the extent
of claims for bodily injury and property damage, will be considered primary and
not in excess of coverage Landlord may carry, and will afford coverage after
the termination of this Lease for all claims based on acts, omissions, injury
or damage which occurred or arose in whole or in part during the term of this
Lease;


 


(e)           the insurance secured by Tenant will apply on a
primary basis to Landlord, even if Landlord has other liability coverage;


 


(f)            Tenant will at its expense obtain and maintain
all-risks property and casualty insurance coverage, written at replacement cost
value and with replacement cost endorsement, covering all Tenant’s personal
property in the Premises and all improvements, alterations or additions made to
the Premises by Tenant;


 


(g)           Business interruption insurance covering those risks
referred to in Section (f) above in an amount equal to all Monthly
Base Rent, Additional Rent and other sums payable under this Lease for a period
of twelve (12) months commencing with the date of loss; and


 


14

















 


(h)           all insurance required under this Section will
be issued by insurance companies licensed to do business in the jurisdiction
where the Building is located and such companies will have a policyholder
rating of at least “A” and be assigned a financial size category of at least “Class X”
as rated in the most recent edition of “Best’s Key Rating Guide.”


 


11.2         Insurance to be Maintained
by Landlord.  Landlord
shall, at its expense, during the construction of the Landlord’s Work and at
all times prior to the Commencement Date, obtain and maintain in full force and
effect policies of insurance providing the following coverages and complying
with the following requirements:


 


(a)           commercial general liability insurance with a
combined personal injury and property damage limit of not less than One Million
Dollars ($1,000,000) for each occurrence and not less than Two Million Dollars
($2,000,000) in the aggregate for this location;


 


(b)           workers’ compensation insurance in the amount
required by statute and employer’s liability insurance in an amount not less
than $1,000,000 per accident/per employee;


 


(c)           “All Risk” or “Special Form” builder’s risk property
insurance in amounts equal to the sum of the construction contracts and
anticipated soft costs for the construction work being undertaken, and if such
builder’s risk property insurance does not cover the full replacement value of
the completed Building and Site Improvements at all times prior to the
Commencement Date, then Landlord shall maintain “All Risk” or “Special Form”
property insurance on a replacement cost basis, covering all of the improvements
located on the Premises in an amount not less than the full replacement cost of
all such improvements; and


 


(d)           all insurance required under this Section (i) will
be issued by insurance companies licensed to do business in the jurisdiction
where the Building is located and such companies will have a policyholder
rating of at least “A” and be assigned a financial size category of at least “Class X”
as rated in the most recent edition of “Best’s Key Rating Guide”; (ii) not
be subject to cancellation or material change or non-renewal without at least
thirty (30) days’ prior written notice to Tenant; and (iii) be deemed to
be primary insurance in relation to any other insurance which may be maintained
by Tenant.  Tenant shall be named as an
additional insured on the coverages required by paragraphs (a) and
(c).  Prior to the commencement of
Landlord’s Work, Landlord shall deliver to Tenant certificates evidencing the
coverages required by this Section 11.2.


 


(e)           The insurance policies required to be obtained by
Landlord may be carried through a “blanket policy” or “umbrella” coverage.


 


11.3         Release and Waiver of Right
of Recovery.  Tenant and
Landlord each hereby waive and release, and shall endeavor to cause their
insurance carriers to waive and release, any and all right of recovery against
the other , including, without limitation, their employees and agents, arising
during (i) the period between the date hereof and the Commencement Date
and 


 


15

















 


(ii) the
Term of the Lease (and any extensions thereof) for any and all loss or damage
to property located within or constituting a part of the Premises, whether or
not such damage or loss shall have been caused by any acts or omissions of the
other party, which loss or damage is insured under any insurance policy carried
by Tenant or Landlord with respect to the Premises.  This waiver is in addition to any other
waiver or release contained in this Lease. 
Every insurance policy carried by Landlord or Tenant with respect to the
Premises shall include provisions waiving the insurer’s subrogation rights
against the other party to the extent such rights can be lawfully waived by the
insured prior to the occurrence of damage or loss.


 


11.4         Failure to Provide Insurance.  If either party fails to maintain or renew
any insurance required by this Lease, to pay the premium therefor, or to
deliver any required certificate and other required items evidencing such
insurance, then the other party, at its option, but without any obligation to
do so, may procure such insurance, provided the non-defaulting party first
gives notice to the defaulting party of its intent to procure such insurance
and pay the premium therefor and the defaulting party fails to procure the same
within five (5) days of receiving such notice.  Any costs so incurred by the non-defaulting
party shall be repaid by the defaulting party within fifteen (15) days after
delivery of a notice describing such costs from the non-defaulting party, which
costs shall include reasonable legal fees, together with interest thereon at
the Default Rate from the date such costs were incurred until the date when
they are paid.  For purposes of this
Lease, the “Default Rate” shall be
the lesser of (i) the rate of interest equal to six percent (6%) plus the
prime rate of interest as published in The Wall Street Journal “Money
Rates” section (or, if such section or newspaper is no longer published, a
similar authoritative source), as such rate may change from time to time, or (ii) the
highest annual interest rate allowed by applicable law..


 


ARTICLE XII


 


DAMAGE OR DESTRUCTION


 


12.1         Notification.  Tenant shall give prompt notice to Landlord
of any fire or other casualty upon the Premises.


 


12.2         Total Destruction.  If the Building or the Premises as a whole
shall be totally destroyed by fire or other casualty, or if the Building or
other portion of the Premises shall be so damaged by fire or other casualty
that (in the opinion of a reputable contractor or architect designated by Tenant)
its repair or restoration (a) would require more than one hundred eighty
(180) days or (b) would require the expenditure of more than sixty percent
(60%) of the full insurable value of the Premises immediately prior to the
casualty, Landlord or Tenant shall have the option to terminate this Lease
within thirty (30) days after such contractor or architect has given its
written opinion to Tenant and Landlord. 
In such event, Landlord or Tenant shall provide the other party with a
written termination notice, including a copy of the opinion given by the
contractor or architect, and the termination shall be effective thirty (30)
days after the date such damage occurred. 
In connection with such termination, Tenant shall be entitled to a
portion of the insurance proceeds paid or payable on account of the fire or
other casualty in an amount equal to unamortized costs incurred by Tenant, and
Tenant shall turn over or assign to Landlord all of Tenant’s right, title and
interest in the balance of such insurance proceeds.  The foregoing notwithstanding, in the event
that the Building or the Premises is damaged by fire or other


 


16














 


casualty
during the last one hundred and eighty (180) days of the Term, Tenant shall
have the option to terminate this Lease.


 


12.3         Repair Provisions.  If the Building or other portion of the
Premises shall be damaged by fire or other casualty during the Term and neither
Tenant nor Landlord elects not to terminate this Lease pursuant to this Article XII,
then Landlord shall repair the damage and restore and rebuild the Building or
other portion of the Premises or both with reasonable dispatch to the extent
Landlord has collected the insurance proceeds attributable to such damage.  Any such work by Landlord shall restore the
Building or the other portions of the Premises or both to substantially their
former condition, to the extent that the same is feasible (subject to those
changes which Landlord reasonably deems desirable and to any changes in
building and other governmental codes and regulations), so as to constitute a
complete and tenantable Premises.  If the
Building or other portion of the Premises shall be damaged by fire or other
casualty prior to the Commencement Date, Landlord shall be solely responsible
for repairing any damage and restoring and rebuilding the Building and other
portions of the Premises.


 


12.4         Rental Abatement.  If the Building or other portion of the
Premises shall be damaged or destroyed by fire or other casualty thereby
causing the Building or other portion of the Premises to be totally or
partially untenantable, the Base Monthly Rent shall be abated in the proportion
that the untenantable area of the Building or other portion of the Premises
bears to the total area of the Building or other portion of the Premises, for
the period from the date of such damage or destruction to the date the damage
or destruction is completely repaired or restored.


 


ARTICLE XIII


 


EMINENT DOMAIN


 


13.1         Notification.  Either party shall give prompt notice to the
other upon learning of a threatened Taking. 
For the purposes of this Lease, the term “Taking” means either a Total Taking or a Partial Taking; the
term “Total Taking” means any
taking of all or a portion of the Premises by condemnation or other
governmental proceeding for any public or quasi-public use or purpose, on
either a permanent or temporary basis, as a result of which it is unreasonable
or impossible for Tenant to properly conduct its business in the Premises, as
Tenant shall determine in its reasonable discretion; the term “Partial Taking” means any taking of a
portion of the Premises by condemnation or other governmental proceeding for any
public or quasi-public use or purpose other than a Total Taking.


 


13.2         Total Taking.  In the event of a Total Taking, this Lease
shall terminate as of the date of vesting of title in the condemning
authority.  In such event, Tenant shall
be entitled to a portion of the condemnation award or proceeds payable on
account of the Total Taking in an amount equal to Tenant’s losses attributable
to Alterations and Major Alterations.  In
addition, Tenant shall have the right to claim from the condemning authorities
such compensation as may be separately awarded or recoverable by Tenant in its
own right on account of any and all damages to Tenant’s business or property,
the unamortized costs of any leasehold improvements to the Premises, the value
of the unexpired term, Tenant’s trade fixtures, business damages (including
business interruption insurance) and moving expenses if separately allocated
and any 


 


17

















 


other
losses incurred by Tenant, provided the filing of the claim does not diminish
the award which would otherwise be receivable by Landlord.


 


13.3         Partial Taking.  In the event of a Partial Taking, Tenant
shall, provided that a condemnation award or awards shall be sufficient for the
purpose, proceed with reasonable dispatch to repair the remaining parts of the
Premises to substantially their former condition, to the extent that the same
is feasible (subject to those changes which Tenant reasonably deems desirable
and which are approved by Landlord in writing and to changes in building and
other governmental codes and regulations), so as to constitute a complete and
tenantable Premises; provided, however, if there is a Partial Taking which, in
the judgment of Tenant reasonably exercised, results in the Premises being
unsuitable for the Use, Tenant may terminate this Lease without any liability
to Tenant or Landlord.


 


13.4         Rental Abatement.  In the event of any Partial Taking, the Base
Monthly Rent shall be reduced proportionately based on the amount of the Premises
taken by the condemning authority. 
During any periods of repair to the Premises after a Partial Taking as
provided in Section 13.3 above, the Base Monthly Rent (as reduced in
accordance with the first sentence of this Section 13.4) shall be abated in
the proportion that the untenantable area of the Building or other portion of
the Premises (after the Partial Taking) bears to the total area of the Building
or other portion of the Premises (after the Partial Taking).


 


ARTICLE XIV


 


LANDLORD’S ACCESS RIGHTS


 


Landlord and its agents
shall have the right to enter the Premises, upon reasonable advance notice, at
any reasonable time during business hours, except in cases of an emergency, to
show the Premises to prospective purchasers or mortgagees of the Premises or to
perform Landlord’s obligations.  Tenant
shall have the option of requiring Landlord to schedule any such showing at
times during which the interference with Tenant’s employees and Tenant’s
business operations will be minimized. 
During the period of 270 days prior to the Expiration Date, Landlord and
its agents may also, subject to the foregoing, display “For Rent” or similar
signs on the Premises and/or exhibit the Premises to prospective tenants.


 


ARTICLE XV


 


SURRENDER AND HOLDOVER


 


On the last day of the Term,
or upon any earlier termination of this Lease or Tenant’s right to possession,
Tenant shall quit and surrender the Premises to Landlord in “broom-clean” and
in good order, condition and repair, subject to Sections 8.1 and 9.3 above,
except for ordinary wear and tear and damage or destruction by casualty;
provided, however, that Tenant will assign or turn over to Landlord the portion
of any insurance proceeds to which Tenant is not entitled if there is a
casualty for which Tenant has a restoration obligation that has not yet been
restored at the end of the Term or earlier termination of the Lease.  If Tenant remains in possession (except as
provided in Section 9.3) after the Expiration Date of this Lease, and
after any applicable renewal or extension periods properly exercised, or after
any earlier termination 


 


18

















 


date of this Lease or of
Tenant’s right to possession: (a) Tenant shall be deemed a tenant-at-will
on a month-to-month basis on the same terms and conditions as provided in this
Lease except that Base Monthly Rent shall be equal to 150% of the immediately
preceding month’s Base Monthly Rent; (b) there shall be no renewal or
extension of this Lease by operation of law; and (c) the tenancy at will
may be terminated upon thirty (30) days’ notice from Landlord.  If Tenant fails to surrender the Premises
upon the termination of this Lease, Tenant shall, in addition to other
liabilities to Landlord, indemnify, defend and hold Landlord harmless from loss
and liability resulting from that failure, including, but not limited to,
claims made by a succeeding tenant.


 


ARTICLE XVI


 


RECORDATION; SUBORDINATION AND ATTORNMENT


 


16.1         Recordation of Lease.  Tenant will not record this Lease without the
written consent of Landlord.  However,
upon request by either party hereto the parties will join in the execution of a
memorandum or so-called “short form” of this Lease for the purpose of
recordation in the form attached hereto as Exhibit C.  No such memorandum shall be deemed to change
or otherwise affect any of the obligations or provisions of this Lease.


 


16.2         Subordination and Attornment.  Tenant’s rights hereunder are hereby declared
to be subordinate to the lien of any mortgage or other security interest
resulting from any method of financing or refinancing, now or hereafter placed
upon the Premises or the land or buildings of which the Premises are a part and
to all advances made or hereafter to be made upon the security thereof (“Mortgage”); provided that every such
Mortgage will contain a provision that the mortgagee or holder of the mortgage
or security interest will recognize the validity of this Lease in the event of
a foreclosure of Landlord’s interest so long as no Event of Default exists
under the terms of this Lease and provided Landlord provides Tenant with a
subordination, non- disturbance and attornment agreement (“Non-Disturbance Agreement”), substantially
in the form of Exhibit D attached hereto hereby, in recordable
form, executed by the holder of any such Mortgage.


 


16.3         Attornment.  In the event of foreclosure of any Mortgage
now or hereafter placed upon the Premises, whether superior or subordinate to
this Lease, then (i) this Lease shall continue in force; (ii) Tenant’s
quiet possession shall not be disturbed so long as no uncured Event of Default
hereunder by Tenant exists; (iii) Tenant shall attorn to and recognize the
current or future mortgagee or purchaser at foreclosure sale (“Successor Landlord”) as Tenant’s landlord
for the remaining term of this Lease; and (iv) the Successor Landlord
shall be bound by the terms and conditions of the Lease (including, without
limitation, the Work Letter), subject to the provisions of any applicable
Non-Disturbance Agreement binding on both Successor Landlord and Tenant.


 


19

















 


ARTICLE XVII


 


ASSIGNMENT AND SUBLETTING


 


17.1         Tenant shall obtain Landlord’s
written consent, in each and every instance, before entering into or permitting
any “Transfer.”  A “Transfer” consists of
any of the following, whether voluntary or involuntary and whether effected by
death, operation of law, or otherwise: (i) any assignment, mortgage,
pledge, encumbrance, or other transfer of any interest in this Lease to any
entity which is not an affiliate or subsidiary under common ownership with
Tenant; (ii) any sublease, license, franchise, concession, or other
occupancy of any portion of the Premises by any persons other than Tenant and
its employees; and (iii) any transfer of this Lease by merger,
consolidation of liquidation, or any change in ownership, or power to vote the
majority of the outstanding voting stock of Tenant.  Notwithstanding anything to the contrary,
Tenant may assign, mortgage, pledge, encumbrance, or transfer and of its
interest in and to the Premises to any subsidiary or affiliate of Tenant
without the consent of Landlord if such subsidiary or affiliate is of equal or
greater financial strength as Tenant as of the date hereof.  If Tenant fails to comply with this Article XVII,
Landlord may, at it option, do either or both of the following: (a) void
the Transfer; or (b) declare Tenant in material and incurable default
under the Lease.  Any Transfer shall not
release Tenant from any of its obligations hereunder.


 


ARTICLE XVIII


 


EVENTS OF DEFAULT


 


18.1         Tenant Default.  The occurrence and continuance of any one or
more of the following events during the Term shall constitute an “Event of Default” under this Lease by
Tenant:


 


(a)           Tenant fails to pay Rent or any other payment due
hereunder when such sum is due and such failure continues and is not remedied
within ten (10) days after written notice thereof to Tenant, provided that
Tenant shall only be entitled to such notice and cure period twice in any
twelve (12) month period;


 


(b)           Tenant fails to comply with any provision of this
Lease (other than a failure in any payment due hereunder which is addressed by
paragraph (a) above) and such failure continues and is not remedied within
thirty (30) days after written notice thereof to Tenant; provided, however,
that if the failure cannot, by its nature, be cured within such thirty (30) day
period, but Tenant has commenced and is diligently pursuing a cure of such
failure, then no Event of Default shall be deemed to have happened so long as
Tenant remedies the failure within a reasonable period of time; or


 


(c)           the filing of a petition is made against Tenant for
adjudication of it as a bankrupt or insolvent, or for its reorganization, or
the appointment of a receiver or trustee for the benefit of its creditors, if
such petition is not dismissed within ninety (90) days of filing; or the filing
of such a petition is made by Tenant; or an assignment is made by Tenant for
the benefit of creditors.


 


20

















 


18.2         Landlord’s Rights Upon Event
of Default of Tenant.  If an Event
of Default by Tenant has occurred and is continuing, Landlord, without thereby
waiving such Event of Default may (but shall not be obligated to) perform the
same for the account and at the expense of Tenant, without notice in a case of
emergency, and in any other case only if such Event of Default continues after
the expiration of thirty (30) days from the date Landlord gives Tenant notice
of Landlord’s intention to cure the Event of Default.  Any expenses incurred by Landlord in
connection with any such performance, and all costs, expenses, and
disbursements of every kind and nature whatsoever, including reasonable legal
fees involved in such performance, shall be due and payable upon Landlord’s
submission of an invoice therefor, together with interest thereon at the
Default Rate from the date of the invoice until the date when they are paid.


 


ARTICLE XIX


 


REMEDIES


 


19.1         Landlord’s Remedies.  So long as any uncured Event of Default has
occurred and is continuing, Landlord, at its option, without further notice or
demand to Tenant, may, in addition to all other rights and remedies provided in
this Lease, at law or in equity:


 


(a)           terminate this Lease and all the estate of Tenant in
the Premises by giving Tenant fifteen (15) days’ written notice of termination,
and upon the date specified in such notice, the Term and the estate hereby
granted shall expire and terminate with the same force and effect as if the
date set forth in such notice was the Expiration Date; or


 


(b)           with or without terminating this Lease, reenter and
repossess the Premises, or any part thereof, and re-let, or attempt to re-let,
any or all parts of the Premises.


 


19.2         Landlord’s Damages.  In connection with any election under Section 19.1
of this Lease, Landlord shall have the rights and remedies referred to herein
and /or provided by law, including, but not limited to, the right to immediate
possession and acceleration of Rent due for the Term hereof.  If a monetary Event of Default exists,
Landlord will be entitled, in addition to any other available remedies, to
interest on the unpaid amount at the Default Rate (or the highest rate
permitted to be charged by law, whichever is lower) from the date such payment
was due.


 


19.3         Removal of Tenant’s Property.  In connection with any election under Section 19.1
of this Lease, Landlord may, at Landlord’s option, enter into the Premises,
remove Tenant’s Property, Tenant’s signs and other evidences of tenancy, and
take and hold possession thereof.  Any
and all property that may be removed from the Premises by Landlord pursuant to
the authority of this Lease or of law, to which Tenant is or may be entitled,
shall be handled, removed or stored by Landlord in a commercially reasonable
manner.  Tenant shall pay to Landlord,
upon demand, any and all expenses incurred in such removal and all storage
charges for such property, together with interest thereon at the Default Rate
from the date such expenses were incurred until the date when they are
paid.  Any such property of Tenant not
retaken from storage by Tenant within sixty (60) days after Landlord takes
possession of the Premises shall be conclusively presumed to have been conveyed
by Tenant to Landlord under this Lease as a bill of sale, without further
payment or credit by Landlord to Tenant.


 


21

















 


19.4         Remedies Cumulative.  The rights, remedies and elections of
Landlord reserved, expressed or contained herein are cumulative and no one of
them shall be deemed to be exclusive of the others or of such other rights,
remedies, options or elections as are now or may hereafter be conferred upon
Landlord by law.


 


19.5         Mitigation of Damages.  Following any Event of Default by Tenant under
this Lease, Landlord shall use commercially reasonable efforts to re-let the
Premises on commercially reasonable terms and to otherwise mitigate its damages
in compliance with the laws of Wisconsin.


 


ARTICLE XX


 


TENANT SELF-HELP


 


20.1         Self-Help Events.  If, during the Term, Landlord fails to comply
with any provision of this Lease and such failure continues and is not remedied
within fifteen (15) days after written notice thereof to Landlord, such failure
shall constitute a “Self-Help Event;”
provided, however, that if the failure cannot, by its nature, be cured within
such fifteen (15) day period, but Landlord has commenced and is diligently
pursuing a cure of such failure, then no Self-Help Event shall be deemed to
have happened so long as Landlord remedies the failure within a reasonable
period of time.


 


20.2         Tenant Rights.  If a Self-Help Event has occurred and is
continuing, Tenant shall have the right to cure any failure of Landlord for the
account of Landlord.  Furthermore, if
there is an emergency which constitutes an immediate threat to the Premises or
Tenant’s Property as a result of Landlord’s failure to perform any obligation
under this Lease, Tenant shall have the right to perform any obligation that
Landlord has failed to perform for the account of Landlord, without giving the
notice and opportunity for cure required for any other Self-Help Event; Tenant
shall, however, give such notice as may be reasonable under the circumstances
(which notice may, for this purpose, consist of notice by telephone).


 


20.3         Landlord’s Reimbursement
Obligation.  Except for
those costs that would otherwise be deemed Operating Expenses under the Lease,
Landlord shall pay Tenant upon demand all reasonable costs incurred by Tenant
in curing Landlord’s failure or performing Landlord’s obligations under Section 20.2,
together with interest thereon at the Default Rate from the date such costs
were incurred until the date they are paid.


 


20.4         Rights Cumulative.  The rights and remedies granted to Tenant
pursuant to this Article are in addition to all other rights and remedies
which Tenant may have by law or equity on account of a failure by Landlord to
comply with, or perform its obligations under, this Lease.


 


22

















 


ARTICLE XXI


 


LIABILITY AND INDEMNIFICATION


 


21.1         Limitation of Liability.


 


(a)           It is expressly understood and agreed by Tenant that
none of Landlord’s representations, warranties, covenants, undertakings or
agreements are made or intended as personal, and no personal liability is
assumed by, nor at any time may be asserted against, any of the partners,
members, directors, officers, shareholders, agents and employees of Landlord,
all such liability, if any, being expressly waived and released by Tenant.


 


(b)           It is expressly understood and agreed by Landlord
that none of Tenant’s representations, warranties, covenants, undertakings or
agreements are made or intended as personal, and no personal liability is
assumed by, nor at any time may be asserted against, any of the shareholders,
officers, directors, partners, members, agents and employees of Tenant, all
such liability, if any, being expressly waived and released by Landlord.


 


21.2         Tenant Indemnification.  Tenant hereby agrees to indemnify and hold
harmless Landlord, its partners, members, directors, officers, shareholders,
agents and employees (each, a “Landlord
Indemnified Party”) from and against any and all claims arising from
or in connection with (a) the conduct or management of the Premises or any
business therein during the Term, or any work or thing whatsoever done, or any
condition created in or about the Premises, during the Term, to the extent
caused by Tenant or any agent, invitee or guest of Tenant, (b) any
accident, injury or damage whatsoever occurring in, at or upon the Premises
during the Term, and (c) any breach of any representation or warranty by
Tenant or any Event of Default by Tenant in the payment and performance of
Tenant’s obligations under this Lease, together with all costs, expenses and
liabilities incurred in, or in connection with, each such claim or action or
proceeding brought thereon (including reasonable legal fees).  If any Landlord Indemnified Party shall be
made a party to any such litigation commenced against Tenant with respect to which
Tenant is required to indemnify the Landlord Indemnified Parties, Tenant shall
pay all reasonable costs and expenses, including reasonable legal fees,
incurred or paid by such Landlord Indemnified Party in connection with such
litigation.


 


21.3         Landlord Indemnification.  Landlord hereby agrees to indemnify and hold
harmless Tenant and its partners, members, directors, officers, shareholders,
agents and employees (each, a “Tenant
Indemnified Party”) from and against any and all claims arising from
or in connection with (a) any work or thing whatsoever done by Landlord,
its agents, contractors or employees (including the Landlord’s Work) or any
condition created in or about the Premises by Landlord, (b) any accident,
injury or damage whatsoever occurring in, at or upon the Premises during the
performance of the Landlord’s Work or otherwise prior to the Commencement Date,
unless caused by Tenant, and (c) any breach of any representation or
warranty by Landlord or any default by Landlord in the full and prompt payment
and performance of Landlord’s obligations under this Lease, together with all
costs, expenses and liabilities incurred in, or in connection with, each such
claim or action or proceeding brought thereon (including reasonable legal
fees).  If any Tenant Indemnified Party
shall be made a party to any such litigation commenced against Landlord with
respect to which Landlord is required to indemnify the Tenant Indemnified
Parties, Landlord shall pay all reasonable costs and expenses, including reasonable
legal fees, incurred or paid by such Tenant Indemnified Party in connection
with such litigation.


 


23

















 


21.4         Limitations on
Indemnifications, Damages and Claims.  All indemnity obligations of Landlord and Tenant
arising under this Lease and all claims, demands, damages and losses assertable
by Landlord and Tenant against the other in any suit or cause of action arising
out of or relating to this Lease or the Premises, or the construction, use and
occupancy thereof, are limited as follows:


 


(a)           By the releases and waivers expressed herein,
including the mutual releases and waivers of rights set forth in Sections 11.3
and 21.1;


 


(b)           All claims for indemnification and other recoveries
shall be limited to direct, proximately caused damages and exclude all
consequential, special or indirect damages, including business loss or
interruption, suffered by the party asserting the claim or seeking the
recovery; and


 


(c)           In the event that Landlord and Tenant (or the persons
for whom they are liable as expressly set forth herein) are determined to be
contributorily responsible for the indemnified injury or loss, each indemnitor’s
obligation is limited to the indemnitor’s equitable share of the losses, costs
or expenses to be indemnified against based on the relative culpability of each
indemnifying person whose negligence or willful acts or omissions contributed
to the injury or loss.


 


21.5         Additional Limitation of
Landlord’s Liability.  Tenant
shall look only to Landlord’s estate and property in the Premises for
satisfaction of Tenant’s remedies for the collection of a judgment (or other
judicial process) requiring the payment of money by Landlord in the event of
any default by Landlord hereunder, and no other property or assets of Landlord
shall be subject to levy, execution or other enforcement for the satisfaction
of Tenant’s remedies under or with respect to this Lease.


 


ARTICLE XXII


 


QUIET ENJOYMENT


 


So long as Tenant pays all
of the Rent and no Event of Default exists, Tenant shall peaceably and quietly
have, hold and enjoy the Premises without hindrance, ejection or molestation by
Landlord or any other person lawfully claiming through or under Landlord,
subject, nevertheless, throughout the Term of this Lease, and any extensions or
renewals thereof.  Landlord agrees to
make reasonable efforts to protect Tenant from interference or disturbance by
other Tenants or third persons.  However,
Landlord will not be liable for any such interference or disturbance nor will
Tenant be released from any of the obligations of this Lease because of such
interference or disturbance. 
Notwithstanding the foregoing, Tenant acknowledges that maintenance and
repairs on or about Premises, or construction and renovation work on the
Building, may cause minor inconvenience to Tenants or their customers, delays
in delivery of services, lack of access to certain areas, limits on available
parking and similar consequences.  Tenant
waives and relinquishes all claims hereafter arising against Landlord with
respect to such work, and agrees that no reasonable actions taken in connection
with such work will permit Tenant to terminate this Lease or relieve Tenant of
its obligations hereunder, unless such interference is unreasonable.


 


24

















 


ARTICLE XXIII


 


BROKER


 


Landlord covenants,
represents and warrants to Tenant that Landlord has had no dealing or
negotiations with any broker or agent or finder other than Fiore Companies, Inc.,
for which Landlord is responsible, in connection with respect to this
Lease.  Tenant covenants, represents and
warrants to Landlord that Tenant has had no dealing or negotiations with any
broker or agent or finder in connection with respect to this Lease other than
Keller Real Estate Group, Inc., which Fiore Companies, Inc. will pay
pursuant to a separate written agreement. 
Landlord and Tenant each covenant and agree to pay, hold harmless and
indemnify the other from and against any and all costs, expenses, including
reasonable attorneys’ fees, and liability for any compensation, commissions or
charges claimed by any other broker or agent with whom the indemnifying party
has had any dealings or negotiations with respect to this Lease.


 


ARTICLE XXIV


 


ESTOPPEL CERTIFICATES


 


Landlord and Tenant, within
fifteen (15) days after written request by the other party, but in no event
more than two (2) times in any calendar year, agree to execute and deliver
an estoppel certificate to the other, in a form reasonably acceptable to such
party certifying (if such be the case) that this Lease is in full force and
effect and that there are no defenses or offsets thereto, or stating those
claimed by either Landlord or Tenant.


 


ARTICLE XXV


 


MISCELLANEOUS


 


25.1         Merger.  All prior understandings and agreements
between the parties are merged in this Lease, which alone fully and completely
expresses the agreement of the parties. 
No agreement shall be effective to change, modify, waive, release,
discharge, terminate or effect an abandonment of this Lease, in whole or in
part unless such agreement is in writing, and is signed by the party against
whom enforcement of said change or modification is sought.


 


25.2         Notices.  Any notice required to be given by either
party pursuant to this Lease, shall be in writing and shall be deemed to have
been properly given, rendered or made only if personally delivered, if sent by
Federal Express or other comparable overnight delivery service, or if sent by
registered or certified mail, return receipt requested, postage prepaid,
addressed to the other party at the addresses set forth below (or to such other
address as Landlord or Tenant may designate to each other from time to time by
written notice), and shall be deemed to have been given, rendered or made on
the day so delivered, if delivered personally, one (1) business day after
having been sent by Federal Express or other comparable overnight delivery
service or three (3) business days after having been mailed:


 


 


	
  If
  to Landlord:

  	
  Dairy
  Drive, LLC

  
	
   

  	
  c/o
  Fiore Companies, Inc.

  



 


25

















 


	
   

  	
  150
  East Gilman

  
	
   

  	
  Madison,
  WI 53703

  
	
   

  	
   

  
	
  With
  a copy to:

  	
  Harvey
  Temkin, Esq.

  
	
   

  	
  Reinhart
  Boerner Van Deuren s.c.

  
	
   

  	
  22
  East Mifflin, Suite 600

  
	
   

  	
  Madison,
  WI 53703

  
	
   

  	
   

  
	
  If
  to Tenant:

  	
  INO
  Therapeutics LLC

  
	
   

  	
  6
  Route 173

  
	
   

  	
  Clinton,
  NJ 08809

  
	
   

  	
   

  
	
  With
  a copy to:

  	
  J.
  J. Broderick, Esq.

  
	
   

  	
  Morgan
  Lewis & Bockius LLP

  
	
   

  	
  1701
  Market Street

  
	
   

  	
  Philadelphia,
  PA 19103

  



 


25.3         Non-Waiver.  The failure of either party to insist, in any
one or more instances, upon the strict performance of any one or more of the
obligations of this Lease, or to exercise any election herein contained, shall
not be construed as a waiver or relinquishment for the future of the
performance of such one or more obligations of this Lease or of the right to
exercise such election, but the Lease shall continue and remain in full force
and effect with respect to any subsequent breach, act or omission.


 


25.4         Parties Bound.  Except as otherwise expressly provided for in
this Lease, this Lease shall be binding upon, and inure to the benefit of, the
successors and assignees of the parties hereto.


 


25.5         Governing Law; Construction.  This Lease shall be governed by and construed
in accordance with the laws of state in which the Premises is located.  If any provision of this Lease or the
application thereof to any person or circumstance shall, for any reason and to
any extent, be invalid or unenforceable, the remainder of this Lease and the
application or that provision to other persons or circumstances shall not be affected
but rather shall be enforced to the extent permitted by law.  The captions, headings and titles in this
Lease are solely for convenience of reference and shall not affect its
interpretation.  This Lease shall be
construed without regard to any presumption or other rule requiring
construction against the party causing this Lease to be drafted.  Each covenant, agreement, obligation or other
provision of this Lease shall be deemed and construed as a separate and
independent covenant, not dependent on any other provision of this Lease.


 


25.6         Defined Terms; Word Usage;
Headings.  Certain
capitalized terms used throughout this Lease are defined in the body of this
Lease.  All terms and words used in this
Lease, regardless of the number or gender in which they are used, shall be
deemed to include any other number and any other gender, as the context may
require.  Except as otherwise expressly 


 


26

















 


provided
or unless the context otherwise requires, the words “herein,” “hereof” and “hereunder”
and other words of similar import refer to this Lease as a whole and not to any
particular Article, Section, subsection or other subdivision, the words “including”
and “include” and other words of similar import shall be deemed to be followed
by the phrase “without limitation,” and “parties” means Landlord and
Tenant.  All headings are for reference
only and shall not be considered as part of this Lease.


 


25.7         Time; Business Day.  Time is of the essence of this Lease and in
the performance of all obligations hereunder.


 


25.8         Exhibits; Counterparts.  All exhibits and appendices attached hereto
shall be deemed to be a part hereof and hereby incorporated herein.  This Lease may be executed by the parties in
separate counterparts, all of which, when delivered, shall together constitute
one and the same instrument.


 


25.9         Relationship Between
Landlord and Teanat.  Nothing
contained in this Lease will create any relationship between the parties hereto
other than that of Landlord and Tenant, and Landlord will not in any way or for
any purpose, become a partner of Tenant in the conduct of its business or
otherwise, or a member of a joint venture or enterprise with Tenant.


 


25.10       Entire Agreement.  This Lease and the exhibits and attachments,
if any, set forth all covenants, promises, agreement, conditions and
understandings between Landlord and Tenant concerning the Premises and replace
and supersede all previous agreements, if any, and there are no covenants,
promises, agreements or conditions, or understandings, either oral or written,
between them other than those herein set forth. 
Except as herein otherwise provided, no subsequent alteration,
amendment, change or addition to or of this Lease will be binding, upon
Landlord and Tenant, unless the same is reduced to writing and signed by the
parties.


 


25.11       Partial Invalidity.  The provisions of this Lease will be deemed
separable, and if any term or provision of this Lease or the application
thereof to any person or circumstances will to any extent be invalid or
unenforceable, the remainder of this Lease, or the application of such term or
provision to persons or circumstances other than those as to which it is
invalid or unenforceable, will not be affected thereby, and each term, covenant
or condition of this Lease will be valid and be enforced to the fullest extent
permitted by law.


 


25.12       Enforcement of Provisions.  All costs and expenses, including attorneys’
fees in a reasonable amount incurred by Landlord or Tenant in any suit, trial
or appeal thereof commenced to enforce the obligations of either under this
Lease, will be paid by the losing party to the prevailing party upon demand.


 


25.13       Limitation of Remedies.  In the event of a sale or conveyance by
Landlord of the Premises or any part of the Premises, the same shall operate to
release Landlord from any future liability upon any of the covenants or
conditions herein contained, and, in such event, Tenant agrees to look solely
to the responsibility of the successor in interest of Landlord in and to this
Lease; provided that the successor landlord assumes all rights and obligations
of this Lease, including but not limited to the Work Letter, and that such sale
or conveyance does not increase Tenant’s obligations or decrease Tenant’s
rights under this Lease.


 


27

















 


[Remainder of page intentionally
left blank; signature page follows.]


 


28














 


IN WITNESS WHEREOF, Landlord
and Tenant have duly executed this Lease as of the day and year first above
written.


 


	
   

  	
  LANDLORD:

  
	
   

  	
   

  
	
   

  	
  DAIRY
  DRIVE, LLC, a Wisconsin limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
  Signed,
  Sealed and Delivered in the presence of:

  	
  By:

  	
  /s/
  Lee R. Ferderer

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Lee
  R. Ferderer

  
	
  /s/
  Stacy M. [Illegible]

  	
   

  	
  Title:

  	
  Senior
  Vice President – Corporate Counsel

  
	
  Unofficial
  Witness

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TENANT:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  INO
  THERAPEUTICS LLC, a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signed,
  Sealed and Delivered in the presence of:

  	
   

  	
  By:

  	
  /s/
  Todd L. Dikva

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Todd
  L. Dikva

  
	
  /s/
  Barbara Pellettiere

  	
   

  	
  Title:

  	
  VP,
  OPERATIONS

  
	
  Unofficial
  Witness

  	
   

  	
   

  	
   

  



 


29

















 


EXHIBIT A


 


LEGAL DESCRIPTION OF THE LAND


 


Lot Forty-four (44), Fourth Addition of World Dairy
Center, in the City of Madison, Dane County, Wisconsin.


 


Tax Parcel No. 251-0710-221-0104-3


 


A-1

















 


EXHIBIT B


 


WORK LETTER


 


This Exhibit is
attached to and made a part of the Lease by and between DAIRY DRIVE, LLC, a
Wisconsin limited liability company (“Landlord”) and INO THERAPEUTICS LLC, a
Delaware limited liability company (“Tenant”) for that certain real property,
together with all improvements thereon and appurtenances thereto belonging,
commonly known as 2902 Dairy Drive, Madison, Wisconsin 53718 (the “Premises”).


 


Building Improvements.  Landlord agrees to deliver to Tenant the
Premises, which shall include the Building Improvements (as defined below),
subject to the terms and conditions of this Work Letter.


 


1.             Building Improvements.  The term “Building Improvements” shall
include all work described in those certain final plans and specifications pages (a-1.1,
1.2, 1.3 and 2.1) [NEED TO SEE PAGES 1.2,1.3
AND 2.1], which are attached hereto and prepared by TJK Design Build, Inc.
(the “Design Build Contractor”), dated as of April 15, 2008 and the
building specification attached hereto (collectively, the “Final Construction
Documents”).


 


2.             Substantially Complete.  The term “Substantially Complete” shall mean
that the Building Improvements are complete in accordance with the Final
Construction Documents, the same being certified to the City of Madison,
Wisconsin by the Design Build Contractor and subject only to Landlord’s
completion of items on a punch list mutually agreed to by both Landlord and
Tenant pursuant to Paragraph 7 below.  If
the Building Improvements are not Substantially Complete (subject to Tenant
Delay and Force Majeure, as such terms are defined below) by July 7, 2008,
Landlord shall pay Tenant two (2) days of free Base Monthly Rent for each
day after July 7, 2008 until such date that the Building Improvements are
Substantially Complete.  If the Building
Improvements are not Substantially Complete by September 1, 2008, Tenant
may terminate this Lease without any further obligations hereunder, subject to
Tenant Delay and Force Majeure.


 


3.             Landlord Change Orders.  Landlord shall submit to Tenant in the form
of a change order acceptable to the Design Build Contractor, for Tenant’s
review, any material change in the Building Improvements which will affect any
matters previously approved by Tenant and which materially affect the
appearance of the Building Improvements. 
Tenant shall have five (5) business days to review such change
order and to approve such change order or disapprove such change order in
writing, which disapproval shall contain written comments as to what changes
would be necessary in order for Tenant to approve such change order.  Tenant may not unreasonably withhold or
condition its consent for any change order requested by Landlord.  If Tenant shall not respond in writing within
such five (5) business day period, such change order shall be deemed
approved.  If Tenant shall disapprove of
any change order, Landlord and Tenant shall work together with the Design Build
Contractor to expeditiously resolve Tenant’s concerns.


 


4.             Tenant’s Change Orders.  Tenant shall submit to Landlord for Landlord’s
review, any request for a change in the Building Improvements.  Landlord shall have five (5) business
days to review such change order and to approve such change order or disapprove
such change 


 


B-1

















 


order in writing, which
disapproval shall contain written comments as to what changes would be
necessary in order for Landlord to approve such change order.  Landlord may not unreasonably withhold or
condition its consent for any change order requested by Tenant.  As part of any approval, Landlord shall supply
to Tenant a cost estimate for the requested change order from the Design Build
Contractor and the reasonable number of days the acceptance of such change
order shall postpone the date the Building Improvements will be Substantially
Complete (any such delay being deemed a Tenant Delay).  Landlord agrees not to disapprove any change
order unless such change order represents a material deviation from the Final
Construction Documents.  If Landlord
shall not respond in writing within such five (5) business day period,
such change order shall be deemed approved. 
If Landlord shall disapprove of any change order, Landlord and Tenant
shall work together with the Design Build Contractor to expeditiously resolve
Landlord’s concerns.  No change in the
Building Improvements shall be effective unless Landlord has executed a change
order for such change, such change order being in a form acceptable to the
Design Build Contractor.  Any change in
the Building Improvements which arises out of a request made by Tenant shall be
at Tenant’s sole cost and expense as Additional Rent under the Lease payable
upon the date when the Building Improvements are Substantially Complete.


 


5.             Completion of Building
Improvements.  Landlord hereby represents
and warrants to Tenant that the Building Improvements shall be free from
defects in workmanship and material, and the Building Improvements shall comply
with the Final Construction Documents and with all applicable building codes
and other legal requirements. 
Notwithstanding anything to the contrary set forth elsewhere in this
Lease, Landlord will cause the repair or replacement of any defects in material
or workmanship, if any, in and to the Building Improvements, if Landlord
receives written notification of such defect from Tenant within the period of
one (1) year after the Commencement Date of the Lease and under such
circumstances such repair or replacement shall not be considered Operating
Expenses under the Lease.  Landlord will
not be responsible for any defect of any nature in the Building Improvements of
which Landlord is not so notified within such one (1) year period.  LANDLORD MAKES NO WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE, IN THE BUILDING IMPROVEMENTS EXCEPT THE
WARRANTIES EXPRESSLY SET FORTH HEREIN.


 


6.             Completion of Tenant’s
Work.  All work necessary for Tenant to
conduct its business in the Premises and not included in the Building
Improvements shall be performed by Tenant and is deemed to be “Tenant’s Work.”
Landlord shall have the right to reasonably approve all contractors and
subcontractors retained by Tenant to perform Tenant’s Work.  Tenant will do and perform at its expense all
Tenants’ Work (a) diligently and promptly, (b) in a good and
workmanlike manner, (c) in compliance with all applicable federal, state
and local laws, regulations and ordinances, and (d) in a lien-free
manner.  Tenant shall be allowed access
to the Premises prior to the Commencement Date in order to complete Tenant’s
Work provided Tenant’s Work shall not materially hinder or interfere with
Landlord’s completion of the Building Improvements.  Landlord and Tenant agree to cooperate with
each other in order to enable the Building Improvements and the Tenant’s Work
to be performed in a timely manner.


 


B-2

















 


7.             Punch List Items.  Upon or prior the date the Design Build
Contractor indicates to Landlord the Building Improvements are Substantially
Complete and Landlord delivers possession of the Premises to Tenant, Landlord’s
and Tenant’s representatives together shall conduct a walk-through of the
Building to compile a punch list of the “Punch List Items” (hereinafter
defined).  Tenant shall deliver to
Landlord a copy of said punch list within ten (10) days after the
walk-through.  Landlord shall complete
any Punch List Items within thirty (30) days after it receives a copy of said
punch list.  As used herein, the term “Punch
List Items” shall mean such minor items of a cosmetic nature which, when
considered as a whole, do not adversely affect either the performance of Tenant’s
Work or Tenant’s ability to conduct its normal business operations in the
Premises.


 


8.             Tenant Delay.  Any delay incurred by Landlord in completing
the Building Improvements arising out of the approval process for a change
order set forth in paragraphs 3 and 4 of this Work Letter or due to a delay
caused by Tenant’s interference with Landlord’s completion of the Building
Improvements shall be a “Tenant Delay” and shall toll any date by which the
Premises must be Substantially Complete.


 


9.             Force Majeure.  If either party is delayed, hindered or
prevented from the performance of an obligation because of acts of God, war,
civil disturbances, restrictive governmental laws or regulations, riots,
insurrection, or other causes beyond the reasonable control of the party
delayed, but not including financial inability, the performance shall be
excused for the period of delay.  The
period for the performance of the given obligation shall also be extended for a
period equal to the period of delay but no more than sixty (60) days beyond the
original deadline for the given obligation.


 


10.           Tenant Credit.  Tenant shall receive a credit in kind for any
work that is required to be completed by Landlord pursuant to this Work Letter,
but that is not completed.


 


B-3

















 


Build Out Specifications


 


QUALITATIVE
SPECIFICATIONS FOR FINISHES, ELECTRICAL, HVAC, & PLUMBING


 


The
MEP systems are to be Design-Build from each prime subcontractor.  Each Design-Build Subcontractor will provide
design services with all work to be in accordance with applicable state and
local building codes.  Each Design-Build
Subcontractor will procure all necessary state and local plan review and
building permit as required.


 


FINISHES:


 


Exterior Office Wall (highlighted in blue) - 5/8” GWB to
10’-0” on 25 GA, 3 5/8” metal studs, tape, finish and paint to 9’-0”. 6”  Batt Insulation with Visqueen Vapor Barrior.


 


Interior Demising Walls (highlighted in green) - 20 GA, 3 5/8”
metal studs at 24” O.C. to deck; Soundbatts and 5/8” GWB (1) side to
deck.  Tape finish and paint to deck on
warehouse side. Tape, finish and paint to 9’-0” on office side.


 


Typical Interior Partitions - 25 GA, 3 5/8” metal studs
at 24” O.C. to 10’-0”; Soundbatts and 5/8” GWB to 10’-0”.  Tape, finish and paint to 9’-0”.


 


Warehouse - Paint all exposed wall and roof structure white
throughout warehouse area.


 


Doors - 3070 H.M. Frames with S.C. Oak Doors; Schlage D
series Lever Latch Set at all locations. 
Privacy locks at toilet rooms. 
(Note: All warehouse to office doors to be H.M.)


 


Ceilings -2x2 Standard class, non-combustible; Reveal edge.
Ceilings at 9’-0”.  Utilize 2 x 4 vinyl
coated sheetrock at Toilet Rooms (at 8’-0”) and Assembly Area.


 


Flooring Allowances - Carpet: $25.00/Sq Yd
installed for offices; VCT: $2.00/SF installed for breakroom. 1/8” rubber coved
base throughout. Ceramic Tile $8.00/SF installed at toilet rooms with 4”
Ceramic Tile base. 8”x8” Ceramic Tile at vestibule.


 


Casework - Commercial caseworks and tops.


 


Vestibule - Dry wall partitions, hollow metal door frame.


 


Toilet Accessories - Towel dispenser; T.P.
Holder; Mirrors; grab bars


 


Exterior Windows - Install four (4) 4’x4’ exterior
aluminum windows matching existing color and style per existing building.


 


Overhead Door - Wire existing electric O.H. Door
operations at drive-in doors and dock door; (3) total.


 


Chain Link Fence - One 5’ x 10’ chainlink cylinder storage
area, 8’ high with double swing gates in Warehouse 116 as shown on plan.


 

















 


ELECTRICAL:


 


Service Size:


 


A.    800 amp service with two (2) 200
amp panels.


 


Lighting Fixtures:


 


A.    Offices: 2 x 4 Parabolic - 3
Lamp 18-cell parabolic; Brushed aluminum cells.


 


B.    2x4 prismatic lenses at
Assembly and R&D (Room 128)


 


B.    Warehouse: High bay
fluorescent lighting fixtures. (25) foot-candles.


 


Necessary
Exit/Emergency Lights; Wire Signage at building facade with Time-clock.
(Signage by tenant).


 


Convenience
outlets and switching throughout offices, dedicated outlet and circuit for
refrigerator, server room, copier, drafting area, fork lift outlet and hook-up
for garbage disposal.


 


Excludes:
Fire Alarm/Security Systems.  Fifty (50)
30-amp duplex outlets at Model Shop.


 


Phone
and data conduit stubs including (2) to warehouse.  Phone and data wiring by tenant.


 


HVAC:


 


General Office Area:


 


·                  Four (4) packaged roof top units (RTU)
with economizers.


·                  Separate HVAC for IT Room 116.


·                  Includes curb and roof penetrations.


·                  T-8220 control system


·                  Metal insulated ductwork system w/diffusers,
grilles and registers


·                  Exhaust fans for the three (3) toilet
rooms, the shower, and the break room.


 


Warehouse:


 


·                  Two (2) gas fired unit heaters w/ gas
piping


 


PLUMBING:


 


All
required services as shown on plans.


 


Plumbing Fixtures -


 


Water Heater - 40 gallon, electric.


 


Toilet - Kohler, Highline, tank type toilet.


 


Bathroom Sink - Drop in vitreous china lavatory.  Provide and install lavatory faucet.


 


7

















 


Mop Sink - Mustee 63M 24” x 24” mop service basin.  Provide and install Chicago faucets.


 


Kitchenette Sink - Dayton 3321-4 two compartment sink.  Insinkerator Badger 1 disposal.


 


Water Supply &  F.D. - for wipe down
room.


 


Showers - Hot and Cold Water Shower Mixing Valve with F.D.
in Room 122; Cold water industrial shower with eyewash at Warehouse 116.


 


Miscellaneous - Three (3) exterior hose bibs; open
site at IT Room.


 


Sprinkler System


 


Office Area - sprinkler for normal office occupancy.


 


Warehouse - sprinkler system to 12’ A.F.F. for Class III
commodities.


 


EXCLUDES:


 


Moving,
supplying and assembly of workstation rack systems.


Phone/data
wiring or equipment.


Alarm
systems or wiring.


Tenant
required plumbing, air lines, medical gas and electrical requirements.


In
floor electrical outlets.


Hook
up of tenant equipment, appliances, furniture and cubicles,


Flooring
in Warehouse (116) and Assembly (115).


Code
review for indoor gas cylinder storage.


 


ALTERNATES:


 


1.
FM200 Fire System for Rooms 125 and 126 in lieu of a wet pipe system - Add
$11,343.


2.
Provide a wet pipe sprinkler system in Room 116 for high piled storage in
lieu of basic storage design - Add 2,269.


3.
Add (1) 1 1⁄2” x 100’ fire hose rack for high piled storage (if necessary)
in Room 116 - Add $2,244.


4.
Apply static dissipating paint to the floor in Room 115 - Add $19,800.


5.
Add (1) catch basin inside OH Door - Add $1,695.


6.
Install (23) Bali/Graber 1” mini blinds at exterior windows excluding vestibule
windows and excluding doors and sidelights - Add $1,315.


 


[HANDWRITTEN
NOTE:  Items #2 & #3 included in
Building Improvements at no additional cost to Tenant.]


 


8














 





 

















 





 

















 





 

















 





 

















 





 














 


EXHIBIT C


 


MEMORANDUM OF LEASE


 


This instrument was prepared by 


and upon recordation return to:


 


 


 


 


MEMORANDUM OF LEASE


 


This Memorandum of Lease is
made and entered into as of                ,
2008 by and between DAIRY DRIVE, LLC, a Wisconsin limited liability company (“Landlord”) whose mailing address is c/o The
Fiore Companies, Inc., 150 East Gilman Street, Madison, Wisconsin 53703
and INO THERAPEUTICS LLC, a Delaware limited liability company (“Tenant”) whose mailing address is                     ,
who agree as follows:


 


1.             The name of the Landlord is
DAIRY DRIVE, LLC, a Wisconsin limited liability company.


 


2.             The name of the Tenant is
INO THERAPEUTICS LLC, a Delaware limited liability company.


 


3.             Landlord leases to Tenant
and Tenant leases from Landlord that certain real property, together with all
the improvements thereon and appurtenances thereunto belonging (the “Premises”), the legal description of which
is attached hereto and incorporated herein as Exhibit “A,” commonly
known as:


 


2902 DAIRY DRIVE 

MADISON, WI 53718


 


for a term of FIVE (5) YEARS, commencing on                     
and expiring on           .  Tenant has two (2) THREE-YEAR options to
extend the term of the Lease as more particularly set forth in the Lease (as
defined below).


 


C-1

















 


4.             Notice is hereby given that
Landlord shall not be liable for any labor, services or materials furnished or
to be furnished to Tenant, or to anyone holding any of the Premises through or
under Tenant, and that no mechanic’s or other liens for any such labor,
services or materials shall attach to or affect the interest of Landlord in and
to any of the Premises.


 


5.             This Memorandum of Lease is
prepared for the purpose of recordation and does not modify the provisions of
the lease dated April      , 2008 and entered
into by and between Landlord and Tenant, as the same may be amended from time
to time (“Lease”). The Lease is
incorporated herein by reference. If there are any conflicts between the Lease
and this Memorandum of Lease, the provisions of the Lease shall prevail.


 


[Signatures
Appear on Following Pages]


 


C-2

















 


[Signature
Page]


 


	
   

  	
  LANDLORD:

  
	
   

  	
   

  
	
   

  	
  DAIRY
  DRIVE, LLC, a Wisconsin limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TENANT:

  
	
   

  	
   

  
	
   

  	
  INO
  THERAPEUTICS LLC, a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


C-3

















 


(ACKNOWLEDGMENT)


 


	
  STATE OF

  	
  )

  
	
   

  	
   

  
	
   

  	
  ss.

  	
   

  
	
   

  	
   

  
	
  COUNTY OF

  	
  )

  
			



 


 


I,                             
a notary public in and for said County in said State, hereby certify that                      ,
whose name as                     
of Dairy Drive, LLC, a Wisconsin limited liability company, is signed to the
foregoing document and who is known to me, acknowledged before me on this day
that, being informed of the contents of the document, he/she, as such                           ,
executed same voluntarily for and as the act of said limited liability company.


 


Given under my hand this the      
day of                          .


 


	
   

  	
   

  
	
   

  	
  Notary Public

  
	
   

  
	
  My
  Commission Expires:

  
	
   

  	
   

  
			



 


C-4

















 


(ACKNOWLEDGMENT)


 


	
  STATE OF

  	
  )

  
	
   

  	
   

  
	
   

  	
  ss.

  	
   

  
	
   

  	
   

  
	
  COUNTY OF

  	
  )

  
			



 


 


I,
                            
a notary public in and for said County in said State, hereby certify that                      ,
whose name as                     
of INO THERAPEUTICS LLC, a Delaware limited liability company, is signed to the
foregoing document and who is known to me, acknowledged before me on this day
that, being informed of the contents of the document, he/she, as such                           ,
executed same voluntarily for and as the act of said limited liability company.


 


Given under my hand this the      
day of                          .


 


	
   

  	
   

  
	
   

  	
  Notary Public

  
	
   

  	
   

  
	
  My Commission Expires:

  	
   

  
	
   

  	
   

  	
   

  
			



 


C-5

















 


EXHIBIT
“A”


 


C-6














 


EXHIBIT D


 


SUBORDINATION, 

NON-DISTURBANCE AND 

ATTORNMENT AGREEMENT


 


 


This instrument was prepared by and 


upon recordation return to


 


 


 


THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT
AGREEMENT (hereinafter referred to as this “Agreement”),
made and entered into this          day
of                ,
by and among                
(hereinafter referred to as the “Owner”),
having an address of                      
and                      
(hereinafter referred to as the “Lender”),
having an address of                                
and                                    ,
(hereinafter referred to as the “Tenant”)
having an address of                     .


 


R
E C I T A L S:


 


A.            The Owner owns
or is purchasing and will own all right, title and interest in that certain
real property being, lying and situate in                  
and more particularly described as set forth on Exhibit “A”
attached hereto and by this reference made a part hereof (the “Property”); and


 


B.            Pursuant to a
lease dated as of                     
by and between Owner, as landlord, and Tenant, as tenant (as the same may have
been amended and supplemented from time to time, the “Lease”), Owner leases to Tenant the entire
Property and the improvements thereon (collectively, the “Leased Premises”); and


 


C.            A mortgage and
security agreement has or will be given by the Owner to the Lender (the “Mortgage”) for the purpose of securing a
loan by Lender to Owner, which Mortgage is secured, in part, by the Property;
and


 


D.            It is the
desire and intention of the parties hereto to subordinate the operation of the
Lease for the full term thereof to the lien and operation of the Mortgage, so
that the Mortgage shall and will become a lien upon the Leased Premises and the
Lease will be unconditionally subordinated thereto in every manner whatsoever,
subject to the terms and conditions of this Agreement.


 


E-1

















 


NOW, THEREFORE, the parties
hereto intending to be legally bound hereby, for and in consideration of the
mutual covenants contained herein, the sum of Ten and No/100 Dollars ($10.00)
and other good and valuable considerations, the receipt and sufficiency of
which are hereby acknowledged, agree as follows:


 


1.             Recitals.  All of the above Recitals are hereby
incorporated herein by reference and are made a part hereof.


 


2.             Subordination.  The Lease and the rights of Tenant thereunder
are and shall be junior, inferior, subject and unconditionally subordinate in
each and every respect to the lien, operation and effect of the Mortgage and to
any and all advancements made thereunder and to any renewals, modifications,
consolidations, replacements, additional advances, future advances and
extensions thereof.


 


3.             Non-Disturbance.  The Lender does hereby agree with the Tenant
that, so long as no Event of Default (as defined in the Lease) by Tenant
exists, (a) the Lender will take no action which will interfere with or
disturb the Tenant’s possession or lawful use of the Leased Premises or other
rights under the Lease, and (b) in the event the Lender becomes the owner
of the Property by foreclosure, conveyance in lieu of foreclosure or otherwise,
the Property shall be subject to the Lease and the Lender shall recognize the
Tenant as a tenant on the Property for the remainder of the term of the Lease
(as the same may be extended in accordance with the provisions of the Lease)
and shall be bound by all of the terms of the Lease (including, without
limitation, the [Work Letter]); provided, however, that the Lender shall not be
liable for any act or omission of any prior landlord except for defaults of a
continuing nature, or in connection with Landlord’s failure to provide the
[Work Letter] subject to any offsets or defenses which the Tenant might have
against any prior landlord except for any offsets or credits against rent that
Tenant is entitled to take or receive as expressed in the Lease, nor shall the
Lender be bound by any Base Monthly Rent (as defined in the Lease) which the
Tenant might have paid for more than the current month to any prior landlord,
nor shall Lender be bound by any material amendment or modification of the
Lease unless Lender has received written notice of such material amendment or
modification of the Lease.


 


4.             Attornment.  Both Lender and Tenant do hereby agree that,
in the event the Lender becomes the owner of the Property by foreclosure,
conveyance in lieu of foreclosure or otherwise, then (i) the Tenant shall
attorn to and recognize the Lender (its designees, assigns, or successor owner
of the Property) as the landlord under the Lease for the remainder of the term
thereof, and the Tenant shall perform and observe its obligations thereunder,
subject only to the terms and conditions of said Lease, and (ii) the
Lender (its designees, assigns, or successor owner of the Property) shall
recognize the Tenant as the tenant under the Lease and be bound by all of the
terms of the Lease (including, without limitation, the Work Letter), subject to
the exceptions expressly provided in the last clause of paragraph 3 above. The
Tenant further covenants and agrees to execute and deliver upon request of the
Lender, or its successors or assigns, an appropriate and reasonable agreement
of attornment, in a form acceptable to Tenant, to any subsequent title holder
of the Property.


 


E-2

















 


5.             Notices Under
Lease.  So long as the Mortgage
remains outstanding and unsatisfied, the Tenant shall deliver to the Lender, at
the address and in the manner hereinbelow provided, a copy of all notices
permitted or required to be given to the landlord by the Tenant under and
pursuant to the terms and provisions of the Lease. Within the time permitted
the landlord for curing any default under the Lease as therein provided, the
Lender may, but shall have no obligation to, pay any taxes and assessments,
make any repairs and improvements, make any deposits or do any other act or
thing required of the landlord by the terms of the Lease; and all payments so
made and all things so done and performed by the Lender shall be as effective
to prevent the rights of the landlord from being forfeited or adversely
affected because of any default under the Lease as the same would have been if
done and performed by the landlord.


 


6.             Assignment of
Lease.  The Tenant acknowledges that
the Owner may execute and deliver to the Lender an assignment of the Lease as
security for the loan which the Mortgage secures, and the Tenant hereby
expressly consents to any such assignment and agrees to pay any rents under the
Lease directly to Lender upon Lender’s written Notice to Tenant to make
payments directly to Lender or at the direction of Lender. The Owner hereby
authorizes and directs the Tenant (upon written direction to Tenant by the
Lender) to pay the above sums directly to the Lender, or at the direction of
Lender, and the Owner hereby agrees to hold Tenant harmless for any monies so
paid directly to or at the direction of the Lender and agrees that Tenant shall
have no liability whatsoever to Owner for any payments made in accordance with
Lender’s notice or direction. Tenant agrees that neither Lender’s demanding or
receiving any such payments, nor Lender exercising any other right, remedy,
privilege, power, or immunity granted by the Mortgage (or other documents
executed in conjunction therewith), will operate to impose any liability upon
Lender for performance of any obligation of Owner under the Lease unless and
until Lender becomes owner of the Property.


 


7.             Notices.  Any and all notices, elections or demands permitted
or required to be made under this Agreement shall be in writing and will be
deemed delivered or made upon the earlier of actual receipt if sent by
overnight courier or hand delivered or three (3) days after same is mailed
by registered or certified mail, return receipt requested, with sufficient
postage affixed, and addressed to the parties as follows:


 


Lender:


 


 


 


(   )


(   )                       
fax


 


Owner:


 


 


 


(   )


(   )                       
fax


 


E-3

















 


Tenant:


INO
THERAPEUTICS LLC


Attn:


 


 


 


 


(   )


(   )                       
fax


 


with a copy of all notices to Tenant to:


 


 


 


(   )


(   )                       
fax


 


Such addresses may be changed by notice pursuant to
this paragraph.  Each party jointly and
severally agrees that it will furnish the other parties with copies of all
notices relating to the Lease.


 


8.             Binding Effect.  This Agreement shall be binding upon all the
parties hereto, their heirs, successors and assigns and all of those holding title
under any of them, and the pronouns herein shall include, where appropriate,
either gender or both, singular and plural.


 


9.             Non-Waiver.  No indulgence, waiver, election or
non-election by the Lender under the Mortgage or any other loan documents associated
with the Mortgage shall affect this Agreement.


 


10.           Modification of Agreement.  The parties hereby agree that this document
contains the entire agreement between the parties, and this Agreement shall not
be modified, changed, altered or amended in any way except through written
amendments signed by all of the parties hereto.


 


11.           Governing Law.  It is agreed that the laws of the State where
the Property is located shall govern the construction and interpretation of
this Agreement and the rights and obligations set forth herein.


 


12.           Attorneys’ Fees.  In the event of any legal or equitable
action, including any appeals or bankruptcy proceedings, which may arise
hereunder between or among the parties hereto, the prevailing party shall be
entitled to recover its costs and its reasonable attorneys’ fees and paralegals’
fees actually incurred.


 


13.           Severance.  The invalidity or unenforceability of any
portion of this Agreement shall not affect the remaining provisions and
portions hereof.


 


14.           Exculpation.  In the event the Lender or any affiliate of
the Lender (for purposes of this paragraph the term “Lender” shall include any corporation or partnership owned or
controlled 


 


E-4

















 


by the Lender) acquires title to the Leased Premises
and succeeds to the interest of Owner under the Lease, then, anything in the
Lease to the contrary notwithstanding, Lender shall have no personal liability
for any damages resulting from its default under the terms of the Lease, and
Tenant agrees that it shall look solely to the estate and interest of the
Lender in the Leased Premises and the rents, issues and profits thereof, and
the refinance and sale proceeds thereof, for the collection of any judgment (or
other judicial process) requiring the payment of money by Lender in the event
of any default or breach by Lender with respect to any of the terms, covenants
and conditions of the Lease to be observed and/or performed by Lender, and no
other assets of the Lender shall be subject to levy, execution or other
procedures for the satisfaction of Tenant’s remedies.


 


15.           Prevailing Clause.  The Tenant agrees that any and all right of
first refusal or rights to purchase, if any, to purchase any portion or all of
the Property granted to it under the Lease is and are in all manner and respect
unconditionally subordinate and inferior to the Mortgage and other Loan
Documents in favor of Lender.


 


16.           Insurance Proceeds.  Notwithstanding anything to the contrary in
the Lease or in this Agreement, Lender hereby agrees to promptly make any and
all insurance proceeds and condemnation proceeds unconditionally available to
Landlord for restoration of the Leased Premises.


 


17.           Counterparts.  This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original. The counterparts
shall together constitute but one agreement.


 


IN WITNESS WHEREOF, the parties
have hereunto caused this Agreement to be duly executed as of the day and year,
first above written.


 


[Signatures
Appear on Following Pages]


 


E-5

















 


[Signature
Page]


 


 


	
   

  	
  LANDLORD:

  
	
   

  	
   

  
	
   

  	
  DAIRY
  DRIVE, LLC, a Wisconsin limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  ,

  
	
   

  	
   

  	
  a
             corporation,

  its
  sole and managing member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TENANT:

  
	
   

  	
  INO
  THERAPEUTICS LLC, a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


E-6

















 


(ACKNOWLEDGMENT)


 


	
  STATE
  OF

  	
  )

  
	
   

  	
   

  
	
   

  	
  ss.

  	
   

  
	
   

  	
   

  
	
  COUNTY OF

  	
  )

  
			



 


I,                           
a notary public in and for said County in said State, hereby certify that                      ,
whose name as                           
of Dairy Drive, LLC, a Wisconsin limited liability company, is signed to the
foregoing document and who is known to me, acknowledged before me on this day
that, being informed of the contents of the document, he/she, as such                           ,
executed same voluntarily for and as the act of said limited liability company.


 


Given under my hand this the      
day of               ,
    .


 


	
   

  	
   

  
	
   

  	
  Notary Public

  
	
   

  	
   

  
	
  My Commission Expires:

  	
   

  
	
   

  	
   

  	
   

  
			



 


 


(ACKNOWLEDGMENT)


 


	
  STATE
  OF

  	
  )

  
	
   

  	
   

  
	
   

  	
  ss.

  	
   

  
	
   

  	
   

  
	
  COUNTY OF

  	
  )

  
			



 


 


I,
                          
a notary public in and for said County in said State, hereby certify that                      ,
whose name as                            
of INO THERAPEUTICS LLC, a Wisconsin limited liability company, is signed to
the foregoing document and who is known to me, acknowledged before me on this
day that, being informed of the contents of the document, he/she, as such                           ,
executed same voluntarily for and as the act of said limited liability company.


 


Given under my hand this the      
day of               ,
    .


 


	
   

  	
   

  
	
   

  	
  Notary Public

  
	
   

  	
   

  
	
  My Commission Expires:

  	
   

  
	
   

  	
   

  	
   

  
			



 


E-7

















 


EXHIBIT
“A”


 


E-8














 


EXHIBIT E


 


World
Dairy Center Covenants, Conditions and Restrictions


 


(Single Copy Provided)


 

















 


REGISTER OF DEEDS


[ILLEGIBLE] WI


95 MAR 31 PM 3:25


 


	
  2667604

  	
   

  	
  V29584P 49

  



 


DECLARATION OF COVENANTS, CONDITIONS


AND RESTRICTIONS FOR THE


WORLD DAIRY CENTER


 


THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR THE WORLD DAIRY CENTER (the “Declaration”) is
made on this 24 day of March, 1995, by WTG CORPORATION (“Developer”).


 


W I
T N E S S E T H:


 


WHEREAS, Developer and W. T. Graham own lands
legally described in Exhibit A (the “World Dairy Center”); and


 


WHEREAS, Developer desires to promote and maintain development of the World Dairy Center in a
campus setting and that buildings constructed upon the World Dairy Center be architecturally designed and built with standards and specifications
in harmony with each other and neighboring sites; and


 


WHEREAS, Developer desires to establish a general
plan governing the architecture, use and enjoyment of the World Dairy Center
and the common areas thereof.


 


NOW, THEREFORE, Developer hereby declares that, for
the mutual benefit of its present and future owners of any portion of the World
Dairy Center, and their successors and
assigns, all lots within the World Dairy Center and described on Exhibit A shall be subject
to the following covenants, conditions and restrictions.


 


ARTICLE I




STATEMENT OF PURPOSE


 


The
purpose of this Declaration is to ensure the highest and best use and the most
appropriate development, of each building site; to ensure that all buildings
shall be related harmoniously to the terrain and to other buildings in the vicinity; to provide for safe and
convenient parking areas; to guard against the erection of


 

















 


poorly designed or proportioned structures; to
obtain harmonious use of materials and color schemes; to insure the highest and
best development of the World Dairy Center; to prevent haphazard, unharmonious
improvement of building sites; to secure and maintain the proper setbacks from streets; and to thereby
promote the development of the world Dairy Center as a high-quality development.


 


ARTICLE II


 


ARCHITECTURAL REVIEW COMMITTEE


 


2.1.          Composition and Duty. An
architectural review committee (the “Committee”) shall
have the duty of approving proposed building plans and specifications and enforcing the provisions of this Declaration
in accordance with the terms of this Declaration. The committee shall consist
of five persons designated by Developer. The powers and duties of the Committee
shall continue for the term of this Declaration and any extensions thereof.


 


2.2.          Replacement of Committee Members. In the event of incapacity, death or resignation of any Committee
member, the remaining member or members shall have full authority to approve, or
disapprove of, building plans and specifications
until another member can be elected or appointed. Developer
shall have the authority to replace any Committee members, and to designate (by
giving written notice to the other Committee members) substitute members who
shall have the authority to act in the absence of regular Committee members. At
such time as Developer completely divests itself of any interest whatsoever in
the World Dairy Center, its Committee members shall be elected by the vote of
owners of the World Dairy Center who together own a majority of the square
footage of platted lots within the World Dairy Center. Such Committee members shall serve at the pleasure of, and may be replaced
by, the owners of the World Dairy Center who together own a majority of the square footage of platted lots
within the World Dairy Center. Any vote to elect Committee members may be held
at a meeting of all owners of platted lots within the World Dairy Center called
by a majority of the Committee members, or by written consent of owners who together own
a majority of the square footage of platted lots within the World Dairy Center.
Should no candidate receive- the votes of owners of the World Dairy Center who
together own a majority of the square footage of platted lots within the World Dairy
Center, then there shall be runoff elections until such result is reached.


 


2.3.          Standards for Approval.  Approval of the development plans and specifications described in Section 2.4,
below, shall be based on, in the judgment
of a majority of the
Committee members, compliance with the
standards set forth in Articles I, III, and IV and upon compliance with
the water and Wetland Management Plan for


 


2

















 


the World Dairy Center dated October 31, 1994
prepared by Johnson, Johnson & Roy, Inc. and submitted by
Developer to the City of Madison, as the same may from time to time be amended
(the “Water and Wetland Management Plan”). The Committee shall not arbitrarily
or unreasonably withhold its approval of such plans and specifications.


 


2.4.          Procedure. Prior to erecting, placing or altering any building or other improvement
upon the World Dairy Center:


 


(a)       A preliminary development plan, including
preliminary drawings and specifications, shall be submitted in writing to the Committee in sufficient detail to enable
the Committee to determine if
the final development plans, when submitted, would satisfy the requirements of the Committee.


 


(b)      After the Committee has approved the
preliminary development plan, the final development plan shall be submitted to
the Committee. The final development plan shall include:


 


(1)       Landscape plans and specifications, which
shall also show existing trees, their species, size and location. It is
Developer’s intent that natural and native species
of plants shall be emphasized.


 


(2)       Site plan showing setbacks, existing and finished contours, driveways, exterior
lighting, loading and parking areas in sufficient detail to enable the Committee to verify
whether the development, when complete, would comply with the Water and Wetland
Management Plan.


 


(3)       Building plans and specifications, including description of
materials to be used.


 


(4)       Exterior elevations and roof plan, including screening of exterior electrical and air conditioning structures.


 


(5)       Proposed facades of any building, including roofs, with color
and texture samples or descriptions.


 


(6)       Drawings or descriptions of signs, their dimensions, size, location
and color.


 


All
such submissions
shall be in writing, in triplicate, over the authorized signature of the party proposing the development, to Developer. Developer shall
then call a meeting of the Committee to consider such plans and specifications. If, however, Developer no longer has any interest in the World Dairy Center, the
submission may be to any
member of the Committee, in which case the member receiving
the submission shall call a meeting of the Committee to consider
such plans and specifications. Action of the Committee


 


3

















 


will be by majority vote of the five
Committee members. The Committee may approve, disapprove, or approve subject to stated conditions
the preliminary and final development plans. If the Committee conditionally
approves either the preliminary or final development plans, then the applicant
shall be entitled to resubmit such plans. The Committee’s decision shall be in
writing, signed by at least three Committee members. If the Committee fails to
render its decision on the preliminary or final development plans within thirty
(30) days of their submission, or
upon any resubmitted preliminary or final development plans within fifteen (15)
days of their resubmission, approval will be deemed to have been obtained and
the applicable covenants, conditions and restrictions in this Declaration shall
be deemed to have been complied
with.


 


2.5.          Committee Meetings. Meetings of the Committee may be called at any time by Developer (so long
as Developer continues to hold any interest in the World Dairy Center) or by
any member of the Committee by delivery of no less than five (15) days’ written
notice to each member of the Committee at such member’s address indicated in
the records of the Committee
for such member. All notices shall be delivered personally or by certified mail,
return receipt requested, and shall be deemed complete upon personal delivery (in
the case of notice given by personal delivery) or upon deposit into the United
States mail (in the case of notice given
by certified mail).


 


2.6.          Variances. The Committee is authorized to grant variances from any provision of
this Declaration where such variations will
assist in carrying out. the intent and spirit of this Declaration and where
strict application of the provision would result in a particular hardship to
the person seeking the variance.


 


ARTICLE III




ARCHITECTURAL RESTRICTIONS


 


3.1.          Parking.
All employee and visitor parking shall be provided on-site. Parking shall not
be permitted on any public street or access drive. All parking areas, driveways,
and loading areas shall be paved with asphalt or concrete.


 


3.2.          Utilities.
All utilities serving any building or site shall be underground. No building or
other improvement, or trees shall be erected, placed or planted within any
utility easement.


 


3.3.          Temporary Buildings. No building or structure of a temporary character shall be used on any
lot at any time, either temporarily
or permanently except for construction trailers during the period of
construction.


 


4

















 


3.4.          Maintenance and Landscaping. Every site on which a building
shall have been placed shall be landscaped in
accordance with the final development plan submitted to and approved by the
Committee. Existing trees over three (3) inches in caliper shall not be
removed without Committee approval, Approved landscaping shall be installed
within ninety (90) days of occupancy or completion of the building, whichever occurs first, unless the
Committee approves in writing  another completion date. After
completion, such landscaping shall be maintained in excellent condition by
cutting, trimming, fertilizing, watering and weeding. Furthermore, each Owner
shall have the duty to maintain, following their installation, all plantings
and other improvements (including drainage ditches) installed by Developer
within any areas designated as drainage easements on the plat of the World Dairy
Center.


 


ARTICLE IV




USE RESTRICTIONS


 


4.1.          Refuse.
No lot shall be used or maintained as a dumping ground for rubbish, Trash, garbage,
and other waste shall be kept in enclosed sanitary containers. All trash areas
shall be screened in a manner approved by the Committee so as not to be visible
from any street or adjacent lots.


 


4.2.          Repair
of Buildings. No building or structure shall be permitted to fall into
disrepair and each building and structure shall at all times be kept in good condition
and adequately painted or otherwise finished. In the event of damage or
destruction to any such building or structure, such building or structure may
be repaired or reconstructed in accordance with the previously approved plans
without their resubmission to the Committee.


 


4.3.          Prohibited
Uses. The World Dairy Center shall not be used for the following purposes
without the prior written approval of the Committee:


 


(a)           amusement establishments, including
fairgrounds, permanent carnivals, kiddie parks and other similar outdoor amusement
facilities;


 


(b)           asphalt and concrete batching or
ready-mix plants;


 


(c)           automobile laundries;


 


(d)           concrete products casting;


 


(e)           junkyards
and automobile storage yards;


 


(f)            railroad freight terminals, railroad
switching and classification yards, repair shops and roundhouses;


 


(g)           secondhand stores and rummage shops;


 


5

















 


(h)           adult entertainment establishments;


 


(i)            motor vehicle sales establishment;


 


(j)            adult entertainment sales
establishments;


 


(k)           automobile accessory stores;


 


(l)            amusement arcades;


 


(m)          amusement establishments, including
archery ranges, bowling centers, dance halls, golf driving ranges, gymnasiums, pool
halls, swimming pools, skating rinks and other similar indoor amusement
facilities;


 


(n)           animal hospitals and kennels
including outdoor dog runs or exercise pens;


 


(o)           automobile service stations;


 


(p)           contractor or construction offices
and shops, and yards, such as building, cement, electrical, heating, ventilating
and air conditioning, masonry, painting, plumbing, refrigeration and roofing:


 


(q)           garages for repair and servicing of
motor vehicles, including body repair, painting or motor rebuilding, and accessory
towing and wrecker service;


 


(r)            highway maintenance shops and yards;


 


(s)           mobile home sales and service
establishments;


 


(t)            model homes or garage displays;


 


(u)           storage yards;


 


(v)           taverns;


 


(w)          trailer sales and rental, for use with
private passenger motor vehicles;


 


(x)            truck sales and rental;


 


(y)           taxicab business, and


 


(z)            motor vehicle salvage business.


 


4.4.          Residential Users.  No
portion of  the World Dairy Center may be used for residential
purposes without the prior written approval of the Committee.


 


6














 


ARTICLE V


 


MISCELLANEOUS


 


5.1.          Enforcement, The Committee, Developer, and any owner of a
platted lot within the World Dairy Center shall have the right to bring an
action or suit against any party to enjoin or recover damages for the violation
of any term, covenant or condition of this Declaration. If the Committee, Developer
or any owner seeking enforcement of this Declaration prevails in any
enforcement action, such party shall be entitled to recover from the party
violating this Declaration its reasonable costs and attorneys’ fees. Furthermore,
the City of Madison shall have the right to enforce the covenant set forth in
the last sentence of Section 3.4.


 


5.2.          Ordinances. If the City of Madison’s General Ordinances and land use restrictions
differ from the restrictions set forth in this Declaration, then compliance
with the more restrictive provisions shall be required.


 


5.3.          Amendments. This Declaration, or any covenant, condition or restriction contained
herein, may be terminated or amended, by a written recorded instrument executed
by Developer (so long as Developer continues to own any lands within the lands
platted as the World Dairy Center, the First Addition to World Dairy Center or
the World Dairy Campus) and by the owners of two-thirds (2/3 rds) of the square
footage of the platted lots within the World Dairy Center. No amendment that
imposes restrictions upon the use or enjoyment (beyond those set forth in this
Declaration) of any lands shall apply to a platted lot that has been previously
conveyed by Developer unless such amendment has been approved by Developer and
the owners of two-thirds (2/3 rds) of the square footage of the platted lots
not owned by Developer and located within the World Dairy Center.


 


5.4.          Term.
The benefits and burdens of the covenants, conditions and
restrictions of this Declaration shall run with the land and are binding upon
any owner, tenant or occupant of any land subject to this Declaration, their successors and
assigns, for a period of twenty (20) years from the date this Declaration is initially recorded,
and thereafter shall automatically continue in effect for successive ten.
(10)-year periods thereafter unless a document executed by
Developer (if Developer still owns any lands within the lands platted as the World
Dairy Center, the First Addition to World Dairy Center or the World Dairy Campus)
and by the owners of at least two-thirds (2/3 rds) of
the platted lots within the World Dairy Center terminating this Declaration is
recorded.


 


5.5.          Governing
Law. This Declaration shall be governed by the laws of the State of Wisconsin.


 


7

















 


5.6.         
Definition of Developer.    As used herein, the term “Developer”
shall mean WTG Corporation or its successors or assigns. The rights of WTG  Corporation
as “Developer” under this Agreement may be assigned by a written
instrument, recorded in the office of the Dane County Register of Deeds.


 


5.7.          Definition
of “Platted Lots,” All references to “platted lots” in this Declaration
shall mean those lots described on Exhibit A attached hereto and made a part
hereof, as the boundaries of the same may change due to lot line realignment.


 


IN WITNESS WHEREOF, Developer has executed and
delivered this instrument as of the day
and year first above written.


 


	
   

  	
  WTG CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  W. T. Graham

  
	
   

  	
   

  	
  W. T. Graham,
  President

  
	
   

  	
   

  	
   

  
	
  STATE OF WISCONSIN

  	
  )

  	
   

  
	
   

  	
  )
  ss.

  	
   

  
	
  COUNTY OF DANE

  	
  )

  	
   

  



 


On this        day
of                  ,
1995, W. T. Graham, President of WTG Corporation, a Wisconsin corporation, to
me personally  known, acknowledged that
he signed the above document for the purposes recited therein on behalf of said
corporation.


 


	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Notary Public, State of Wisconsin 

  
	
   

  	
  My Commission:

  	
   

  
				



 


8

















 


CONSENT


 


W.T. Graham, as the owner of a portion of the lands
described on Exhibit A attached hereto, executes this Declaration in his individual capacity for the purpose of
subjecting his interest in said portion to this Declaration.


 


	
   

  	
  /s/ W.T. Graham

  
	
   

  	
  W.T. Graham

  
	
   

  	
   

  
	
  ACKNOWLEDGEMENT

  
	
   

  	
   

  
	
  STATE OF WISCONSIN

  	
  )

  	
   

  
	
   

  	
  )
  ss.

  	
   

  
	
  COUNTY OF DANE

  	
  )

  	
   

  
	
   

  	
   

  



 


Personally came before me this 24 day of March 1995,
W.T. Graham, who executed the above instrument and acknowledged the same.


 


	
   

  	
  /s/ Jesse S. Ishikawa

  
	
   

  	
  Name:

  	
  Jesse S. Ishikawa

  
	
   

  	
  Notary Public, State of
  Wisconsin

  
	
   

  	
  My Commission:

  	
  is Permanent

  
				



 


 


RETURN
TO


 


This Document Drafted By:


 


Jesse S.  Ishikawa



MICHAEL, BEST & FRIEDRICH


One South Pinckney Street 


P.O. Box 1806


Madison, WI 53701-1806 


Phone: 608-257-3501


 


9

















 


EXHIBIT
A


 


Lots Two (2) through Fourteen (14), inclusive, World
Dairy Center, in the City of Madison, Dane County, Wisconsin,


 


EXCEPTING THEREFROM:


 


Part of the Southwest Quarter of the Northeast
Quarter of Section 22, Township 7 North, Range 10 East, City of Madison, Dane
County, Wisconsin more fully described as follows:


 


Beginning at the southeast corner of Lot 2 of the
plat of WORLD DAIRY
CENTER, according to the recorded plat thereof, thence  South
88 degrees 39 minutes 32 seconds West (recorded as South 88 degrees 38 minutes
38 seconds West). 149.51 feet along the south line of
said Lot 2: thence North 00 degrees 12 minutes 55 seconds East. 386.32 feet to
the southerly right-of-way line of World Dairy Drive: thence North 88 degrees
39 minutes 32 seconds East, 139.02 feet along said southerly right-of-way line;
thence South 01 degrees 20 minutes 28 seconds East, 386.18 feet along the east
line of said Lot 2 to the point of beginning. This description contains 55,712.08
square feet  or
approximately 1.28 acres.


 


Tax
Parcel No: 60-0710-221-0095-4; 0099-6; 0098-8


 

















 


	
  First
  American Title Insurance Co.

  	
   

  
	
  122
  East Oiln Avenue

  	
  DANE COUNTY

  
	
  Post
  Office Box [ILLEGIBLE]

  	
  REGISTER OF DEEDS

  
	
  Madison,
  Wisconsin 53715-0701

  	
  Doc No 2718461

  



 


	
   

  	
  1995-11-13  

  	
  03:16 PM

  
	
  SCRIVENER’S
  AFFIDAVIT

  	
  Trans.
  Fee   

  	
  0.00

  
	
   

  	
  Rec.
  Fee  

  	
  12.00

  
	
   

  	
  Pages  

  	
  2  

  



 


	
  STATE OF WISCONSIN

  	
  )

  	
   

  
	
   

  	
  )
  ss.

  	
   

  
	
  COUNTY OF DANE

  	
  )

  	
   

  
	
   

  	
   

  



 


The undersigned, being first
duly sworn, does hereby depose and say that:


 


1.                         He is an adult resident of the City of Madison, County of Dane, State of Wisconsin.


 


2.                        He at all times relevant hereto was the attorney for WTG Corporation.


 


3.                        In such capacity, he prepared and caused to be recorded a Declaration of
Covenants, Conditions and Restrictions for the World Dairy Center with the Dane
County Register of Deeds in Volume 29584 of Records, page 49, as Document
No. 2667604 (the “Declaration”).


 


4.                         The Declaration, at Exhibit A thereto, referred to “Lots Two (2) through
Fourteen (14), inclusive, World Dairy Center, in the City of Madison, Dane County, Wisconsin.”


 


5.                        The description, “Lots Two (2) through Fourteen (14), inclusive, World
Dairy Center,” was  incorrect
because at the time the Declaration was recorded, Lot Nine (9) of the
World Dairy Center had been replatted as  “Lot
Nineteen (19), First Addition to World Dairy
Center.”


 


60-0710-221-0402-1


 


6.                         Accordingly, the reference set forth on Exhibit A to the Declaration
to “Lots Two (2) through Fourteen (14), inclusive, World Dairy Center, in the City of Madison, Dane County, Wisconsin” should read as
follows:


 


Lots Two (2) through Eight
(8), inclusive, and Lots Ten (10) through Fourteen (14), inclusive, World Dairy
Center, and
Lot Nineteen (19), First  Addition to World Dairy Center, in
the City of Madison, Dane County, Wisconsin.


 


	
   

  	
  /s/ Jesse S.  Ishikawa

  
	
   

  	
  Jesse S.  Ishikawa

  



 

















 


Subscribed and sworn to
before me this 10th
day of November,
1995.


 


 


	
  /s/ Sheryl A. Dean

  	
   

  
	
  Name:

  	
  Sheryl A. Dean

  	
  [SEAL]

  
	
  Notary Public, State of
  Wisconsin

  	
   

  
	
  My Commission:

  	
  Exp. 7-11-99

  	
   

  
				



 


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