LEASE
by and between
KAX CO.,
A GENERAL PARTNERSHIP,
as Landlord
and
CYBERKINETICS, INC.,
A DELAWARE CORPORATION
as Tenant
for space 000
Xxxxx X
XXXXXXXXXX XX XXXX RESEARCH PARK
000 XXXXXXX XXX
XXXX XXXX XXXX, XXXX
UNIVERSITY OF UTAH RESEARCH PARK, 000 XXXXXXX XXX,
XXXX XXXX XXXX, XXXX
TABLE OF CONTENTS
RECITALS:................................................................... 1
1. ........................................................LEASED PREMISES 1
2. ............................................................ALTERATIONS 2
3. ...................................................................TERM 2
4. ...................................................................RENT 2
5. ...........................................................LATE CHARGES 2
6. ..............................................................FINANCING 2
7. ......................................................USE AND OCCUPANCY 3
8. ..............................................................UTILITIES 3
9. ..................................................................TAXES 3
10.............................................FIRE AND CASUALTY INSURANCE 3
11.......................................LIABILITY INSURANCE AND INDEMNITY 4
12..................................................MAINTENANCE AND REPAIR 4
13...................................................................SIGNS 4
14..........................................................KEYS AND LOCKS 5
15.........................................................SECURITY SYSTEM 5
16........................................................CARPETING DAMAGE 5
17............................................................FORCED ENTRY 5
18.............................................................DESTRUCTION 5
19............................................................CONDEMNATION 5
20..............................................ASSIGNMENTS AND SUBLETTING 5
21...................................SURRENDER AND RIGHTS UPON TERMINATION 6
22............................................................HOLDING OVER 6
23...........................................................RIGHT TO CURE 6
24................................................................REMEDIES 6
25.............................................................ENFORCEMENT 7
26.................................................................NOTICES 7
27.........................................................QUIET ENJOYMENT 7
28...........................................................FORCE MAJEURE 7
29..................................................................WAIVER 7
30.................................................ACCORD AND SATISFACTION 7
31......................................................PARTIAL INVALIDITY 7
32......................................REPRESENTATION REGARDING AUTHORITY 7
33........................................................ENTIRE AGREEMENT 7
34................................................MISCELLANEOUS PROVISIONS 7
35........................................................SECURITY DEPOSIT 8
36....................................................HAZARDOUS SUBSTANCES 8
37...................................................ADDITIONAL PROVISIONS 8
LANDLORD ACKNOWLEDGMENT..................................................... 9
TENANT ACKNOWLEDGMENT
(Corporate)........................................................ 10
SUB-LEASE
(Research Park Portion of A Building Full Service)
THIS LEASE, made and entered into this 28th day of January,
2005, by and between KAX CO., a Utah general partnership (hereinafter referred
to as "Landlord"), and CYBERKINETICS, INC., a Delaware corporation (Tax ID:
00-0000000), (hereinafter referred to as "Tenant").
RECITALS:
A. Landlord has heretofore obtained a long-term ground lease covering that
certain tract of real property situated in the University of Utah
Research Park in Salt Lake County, State of Utah, comprising
approximately 4.13 acres, and more particularly described as follows:
TRACT NO. 1: Commencing at a point North 47(degree)49'55" West 3246.84
feet from the Southeast corner of Section 3, TlS, R1E, SLB&M (according
to B.L.M. Survey), said point being a monument at the Northeast corner
of Fort Xxxxxxx Cemetery and lying North 12(degree)06'20" East 3806.05
feet from the city monument at the intersection of Xxxxxxxxx Xxxxxx xxx
Xxxxxx Xxxxxx; and running thence on city bearings South
67(degree)14'36" West 188.79 feet; thence North 36"50'19" West 564.38
feet; thence South 86(degree)50'12" East 153.92 feet; thence North
53(degree)09'41" East 220 feet to a point on a 2887.18 feet radius
curve to the left; thence Southeasterly along said curve a distance of
550.65 feet; thence South 39(degree)21'42" East 51.56 feet; thence
South 67(degree)14'36" West 166.01 feet; thence North 29(degree)38'24"
West 50.00 feet to the point of beginning. Containing 4.13 acres.
TOGETHER WITH certain easement for access rights. (Said tract is
hereinafter referred to as the "Property").
B. Landlord owns a building on the above described real property
(hereinafter the "Building") suitable for use a office/research and
development space, together with related parking facilities and other
improvements necessary to enable to the Building to be so used (the
Building and related facilities and improvements are hereinafter
collectively referred to as the "Improvements").
C. Tenant desires to lease from Landlord a portion of the Building,
together with certain rights and privileges necessary for the full use
and enjoyment thereof.
NOW THEREFORE, in consideration of the premises and of the rents,
covenants, and agreements hereinafter mentioned and reserved to be paid, kept,
and performed by one or the other of the parties hereto, Landlord and Tenant
hereby enter into this Lease and agree as follows:
1. LEASED PREMISES. Landlord does hereby demise, lease, and let unto
Tenant the following-described areas, rights, and privileges
(hereinafter collectively referred to as the "Leased Premises"):
A. Those parts of the main and sub-level floors of the Building
commonly known as 000 Xxxxxxx Xxx, Xxxxx X, Xxxx Xxxx Xxxx,
Xxxx, which space is outlined in yellow on Exhibit "A"
attached. The gross areas of said space is approximately
11,225 square feet.
B. Such nonexclusive rights-of-way, easements, and similar rights
with respect to the Property and the Improvements as may be
reasonably necessary for access to that portion of the
Building described under item (a) above; and
C. The nonexclusive right to use for such purposes, along with
all other subtenants, occupants, and users of the Improvements
(or of improvements now or hereafter situated on any nearby
tract now or hereafter leased by Landlord from the University
of Utah), those areas designed and suitable for vehicular
parking which are not reserved for the exclusive use of other
tenants.
Landlord hereby reserves, however: (i) Such access rights over and
across the Property, such easements for utility lines, and such
temporary rights of occupancy for construction, repair and maintenance
activities as may be reasonably necessary to enable Landlord to fully
develop, use, maintain and enjoy this tract and any other nearby tract
or tracts within the Research Park which are being leased or which may
hereafter be leased from the University of Utah by Landlord; (ii) Such
access rights through that portion of the Building described under item
(a) above as may be reasonably necessary to enable access to the
balance of the Building by Landlord; and (iii) The right to install or
maintain meters on the Leased Premises to monitor use of utilities for
Landlord's records. In exercising such rights, Landlord will use its
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reasonable efforts so as to not commit waste upon the Leased Premises
and as far as practicable to avoid annoyance or damage to Tenant when
making modifications, additions or repairs.
2. ALTERATIONS. During the term of this Lease, Tenant shall have the
right, at its sole cost and expense and so long as the change involved
is not of a permanent or structural nature, to make such alterations in
or additions to the Leased Premises as may be necessary to facilitate
the use Tenant then desires to make of the Leased Premises. Changes of
a permanent or structural nature may be made only with Landlord's prior
written approval (not to be unreasonably withheld). Unless the parties
have otherwise agreed in writing, upon the expiration or termination of
this Lease, Landlord shall have the right, with respect to each
alteration or addition made by Tenant, to retain the item or change
concerned or to require Tenant at its expense to restore to its
original condition that part of the Leased Premises involved. Landlord
shall not have the right to retain easily removable furniture,
cabinets, equipment, portable interior partitions, or other personal
property furnished by Tenant, but Tenant shall at its expense repair
any damage to the Leased Premises which may have been caused by such
personal property.
At any time during the term hereof, Landlord shall have the right to
make any modifications in or additions to that portion of the
Improvements which is not part of the Leased Premises, so long as
Landlord's activities in that regard do not substantially interfere
with Tenant's use and enjoyment of the Leased Premises.
3. TERM. The firm term of this Lease shall commence on DECEMBER 1, 2004,
and shall continue for a period of FIVE (5) YEARS thereafter to and
including NOVEMBER 30, 2009.
4. RENT.
A. Tenant shall pay as monthly rental the sum of FIFTEEN THOUSAND
FIVE HUNDRED AND 00/100 Dollars ($15,500). Said sums to be
payable in lawful money of the United States.
B. Tenant shall make monthly payments as set forth in Section 4a
in advance on or before the first day of each calendar month
throughout the term of the Lease. Each rental payment or other
sum required to be paid by Tenant under this Lease shall be
delivered to Landlord, c/o Woodbury Corporation, 0000 Xxxx
Xxxxxxx Xxx, Xxxxx 000, Xxxx Xxxx Xxxx, Xxxx 00000 or to such
other address as Landlord may hereafter designate in a written
notice given to Tenant. All checks to Landlord shall be made
payable to KAX CO. (Fed ID# 00-0000000)
C. The monthly rent specified in the foregoing portion of this
Section 4 shall be adjusted beginning DECEMBER 1, 2006 to be
$16,000, and then again on DECEMBER 1, 2008 to be $16,500.
Such adjustments shall occur pursuant to the following
definitions, directives, and formula:
(1) "Adjustment Dates" shall mean the first day of
DECEMBER, 2006 and the first day of DECEMBER, 2008 of
each succeeding year thereafter.
(2) "Adjustment Period" shall mean the twelve (12) month
period from an Adjustment Date to the next succeeding
Adjustment Date.
5. LATE CHARGES. In the event that Tenant shall fail to pay any rental
(including additional rental due hereunder) on or before the due date
or within five (5) days thereafter, Tenant shall pay interest from the
due date on such past due amounts to the date of payment, both before
and after judgment at a rate equal to the greater of eighteen (18%)
percent per annum or two (2%) percent over the "prime rate" charged by
Zions First National Bank of Utah at the due date of such payment;
provided however, that in any case the rate of interest charged shall
not exceed the maximum non-usurious rate in accordance with applicable
law.
6. FINANCING. Tenant acknowledges that there presently exists a first
mortgage on the subject building. Tenant also acknowledges that from
time to time Landlord may desire to refinance the first mortgage loan
which then affects Landlord's interest in the Property and the
Improvements. Accordingly, Tenant agrees that its interests in the
Leased Premises and all of its interest hereunder are now and shall at
all times be subject and subordinate to each of the following
encumbrances whether the same are now existing or are hereafter created
and without the need for any act or agreement by Tenant: (i) A first
position mortgage or trust deed and customary related instruments
encumbering Landlord's interest in the Property and the Improvements
(which mortgage or trust deed and related instruments are hereinafter
collectively referred to merely as a "Mortgage") and securing a loan
obtained by Landlord for the purpose of enabling construction of the
Improvements, (ii) A first position Mortgage encumbering Landlord's
interest in the Property and the Improvements and securing a loan which
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is obtained by Landlord to provide standing or permanent financing for
the same; and (iii) A first position Mortgage encumbering Landlord's
interest in the Property and the Improvements and securing a loan which
is obtained by Landlord for the purpose of refinancing any such
construction, standing or permanent loan; provided, however that so
long as Tenant continues to perform all of its obligations under this
Lease its tenancy shall remain in full force and effect notwithstanding
Landlord's default in connection with a Mortgage or any resulting
foreclosure or sale or transfer in lieu of such proceedings. Tenant
shall not subordinate its interests hereunder or in the Leased Premises
to any lien or encumbrance other than the Mortgages referred to in this
Section 6 without the prior written consent of the lender interested
under the Mortgage then affecting Landlord's interest in the Property
and the Improvements. Any such unauthorized subordination by Tenant
shall be void and or no force or effect whatsoever.
Tenant agrees that, upon the written request of Landlord or of any
lender which is considering making or which has made one of the loans
referred to in this Section 6, and for the exclusive benefit of
Landlord and such lender, it will promptly deliver to Landlord or to
such lender a written instrument certifying as to any of the following
facts or matters, to the extent the same are then the case or
applicable: that there are no existing defaults under this Lease; that
this Lease is then unmodified and in full force and effect; that the
Improvements have been completed and as constructed comply with the
requirements of this Lease, the date which constitutes the Completion
Date hereunder; the use which is being made of or which is proposed to
be made of the Leased Premises; and such other reasonable matters as to
which Landlord or the lender makes inquiry.
7. USE AND OCCUPANCY. Tenant shall use the Leased Premises as an OFFICE,
LAB AND LIGHT MANUFACTURING, and for purposes ordinarily incidental to
such use and only for such purposes and in such manner as are permitted
both by the Protective Covenants relating to the University of Utah
Research Park and by existing legislation concerning the Research Park.
Tenant shall not make any use of the Leased Premises which will cause
cancellation or an increase in the cost of any insurance policy
covering the same. Tenant shall not keep or use on the Leased Premises
any article, item, or thing which is prohibited by the standard form of
fire insurance policy. Tenant shall not commit any waste upon the
Leased Premises and shall not conduct or allow any business activity,
or thing on the Leased Premises which is an annoyance or causes damage
to Landlord, to other sub-tenants, occupants, or users of the
Improvements, or to occupants of the vicinity. Tenant shall comply with
and abide by all laws, ordinances, and regulations of all municipal,
county, state, and federal authorities which are now in force or which
may hereafter become effective with respect to use and occupancy of the
Leased Premises. Landlord represents that to the best of its knowledge
and understanding, the building in which the Leased Premises are
situated complies with all currently applicable laws, ordinances and
regulations of municipal, county, state and federal authorities.
8. UTILITIES. Tenant accepts the utility connections in the premises "as
is". Throughout the term hereof Landlord shall pay all monthly or other
periodic charges required for the Leased Premises to be furnished with
such utility services as may be required by Tenant in connection with
its use and occupancy of the Leased Premises, including electricity,
water, gas, heat, sewer service, trash disposal, and snow removal, but
not including telephone installation, use and station equipment
charges, which charges Tenant agrees to pay.
9. TAXES. Landlord shall advance all real property taxes, contributions in
lieu of taxes and assessments (all of which are hereinafter
collectively referred to as "Taxes") which are levied against or which
apply with respect to the Leased Premises. Tenant shall pay all taxes,
assessments, charges, and fees which during the term hereof may be
imposed, assessed, or levied by any governmental or public authority
against or upon Tenant's use of the Leased Premises or any personal
property or fixtures kept or installed therein by Tenant.
10. FIRE AND CASUALTY INSURANCE.
A. Subject to the provisions of Section 11 below, Landlord shall
secure, pay for, and at all times during the term hereof
maintain, insurance providing coverage upon the Improvements
in an amount equal to the full insurable value thereof (as
determined by Landlord) and insuring against the perils of
fire, extended coverage, vandalism, and malicious mischief.
All insurance required hereunder shall be written by
reputable, responsible companies licensed in the State of
Utah. Landlord shall also maintain appropriate general
liability insurance with respect to Landlord's building.
Tenant shall have the right, at its request and any reasonable
time, to be furnished with copies of the insurance policies
then in force pursuant to this Section, together with evidence
that the premiums therefor have been paid. Landlord shall
indemnify Tenant against and hold it harmless from any claims
arising out of loss or damage to building, except for damage
resulting from the acts or omissions of Tenant, its officers,
employees or agents.
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B. Tenant agrees to maintain at its own expense such fire and
casualty insurance coverage as Tenant may desire or require in
respect to Tenant's personal property equipment, furniture,
fixtures or inventory and Landlord shall have no obligation in
respect to such insurance or losses. All property kept or
stored on the Leased Premises by Tenant or with Tenant's
permission shall be so done at Tenant's sole risk and Tenant
shall indemnify Landlord against and hold it harmless from any
claims arising out of loss or damage to same.
C. Tenant will not permit said Leased Premises to be used for any
purpose which would render the insurance thereon void or cause
cancellation thereof or increase the insurance risk or
increase the insurance premiums in effect just prior to the
commencement of this lease term. Tenant agrees to pay as
additional rent the total amount of any increase in the
insurance premium of Landlord in effect prior to the resulting
commencement of this Lease resulting from Tenant use of the
premises. If Tenant installs any electrical or other equipment
which overloads the lines in the Leased Premises, Tenant shall
at its own expense make whatever changes are necessary to
comply with the requirements of Landlord's insurance.
D. Each party hereto does hereby release and discharge the other
party hereto and any officer, agent, employee or
representative of such party, of and from any liability
whatsoever hereafter arising from loss, damage or injury
caused by fire or other casualty for which insurance
(permitting waiver of liability and containing a waiver or
subrogation) is carried by the injured party at the time of
such loss, damage, or injury to the extent of any recovery by
the injured party under such insurance.
E. Tenant shall be responsible for all glass breakage from any
cause whatsoever and agrees to immediately replace all glass
broken or damaged during the term hereof with glass of the
same quality as that broken or damaged. Landlord may replace,
at Tenant's expense, any broken or damaged glass if not
replaced by Tenant within five (5) days after such damage.
11. LIABILITY INSURANCE AND INDEMNITY. Tenant shall, during the entire term
hereof, keep in full force and effect a policy of public personal
injury and property damage liability insurance with respect to the
Leased Premises, in which the limits for such liability shall be not
less than Two Million Dollars ($2,000,000.00) per accident, and in
which the limits for property damage liability shall be not less than
One Hundred Thousand Dollars ($100,000.00). The policy shall name
Landlord, any persons, firms or corporations designated by Landlord and
Tenant as insureds, and shall contain a clause that the insurer will
not cancel or change the insurance without first giving the Landlord
ten (10) days prior written notice. Such insurance may be furnished by
tenant under any blanket policy carried by it or under a separate
policy therefore. The insurance shall be with an insurance company
approved by Landlord and a copy of the paid-up policy evidencing such
insurance or a certificate of insurer certifying to the issuance of
such policy shall be delivered to Landlord. If Tenant fails to provide
such insurance, Landlord may do so and charge same to Tenant.
Tenant will indemnify Landlord and save it harmless from and against
any and all claims, actions, damages, liability and expense in
connection with loss of life, personal injury and/or damage to property
arising from or out of any occurrence in, upon or at the Leased
Premises or from the occupancy or use by tenant of the Leased Premises
or any part thereof, or occasioned wholly or in part by any act or
omission of Tenant, its agents, contractors employees, servants,
sublessees, concessionaires, or business, invitees unless caused by the
negligent of Landlord.
Landlord will likewise indemnify and hold harmless and defend tenant
from and against claims arising from occurrences in parking and other
common areas around the premises known as 000 Xxxxxxx Xxx. occasioned
wholly or impart by any act or omission of Landlord, its agents,
contractors, employees, servants, sublessees other than tenant or
business invitees.
12. MAINTENANCE AND REPAIR. Landlord shall maintain and repair: (1) the
premises outside the Building, including general landscaping, if any,
parking areas, driveways and walkways; (2) the Building structure
including roof, walls, floor joists; (3) the foundations of the
Building; and (4) all plumbing, electrical, heating, and air
conditioning systems serving the building generally, but not including
plumbing electrical and HVAC for Tenant's specialty equipment. However,
if the need for such repairs or maintenance results from any careless,
wrongful or negligent act or omission of Tenant, Tenant shall pay the
entire cost of any such repair or maintenance including a reasonable
charge to cover Landlord's supervisory overhead. Landlord shall not be
obligated to repair any damage or defect until receipt of written
notice from Tenant of the need of such repair and Landlord shall have a
reasonable time after receipt of such notice in which to make such
repairs. Landlord shall plow snow from parking areas after each snow
fall in excess of three inches and shall keep the sidewalks and
walkways reasonably clear from ice and snow.
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Tenant shall provide its own janitorial service including lamp
replacement and maintain the interior of the Leased Premises and shall
keep the same in a clean and sanitary condition.
13. SIGNS. Subject to the restrictions of the University Research Park,
Tenant, at its own expense, may place a suitable tenant identification
sign on the premises, provided that such sign shall be in the same
general building location and general design conforms to the same
design and style of other tenant signs on the building and provided
that written approval of the sign design and proposed location is
obtained in advance from Landlord and from the University Research
Park. If any sign is erected prior to obtaining University Research
Park and Landlord approval or which does not conform to the condition
herein specified, Tenant shall be required to remove said sign and
repair any damage caused thereby at its sole cost and expense. At the
termination of this Lease, Tenant shall remove said sign and Tenant
agrees that whenever its signs are removed, Tenant shall repair any
damage caused by the installation or removal thereof. All work shall be
completed in a good and workmanlike manner.
14. KEYS AND LOCKS. Tenant may change locks or install other locks on
doors, but if Tenant does so, Tenant must provide Landlord with
duplicate keys within twenty-four hours after said change or
installation. Tenant upon termination of this Lease shall deliver to
Landlord all the keys to the Leased Premises including any interior
offices, toilet rooms, etc. which shall have been furnished to the
Tenant or are in the possession of the Tenant.
15. SECURITY SYSTEM. Landlord herein consents to the installation by Tenant
of its own security system together with separate keys or locks, if
any, affecting all or a portion of the Leased Premises provided that
such security system does not interfere with the structural aspects or
utility systems of the building and provided that any damage occasioned
by said installation is repaired immediately. Upon termination of this
Lease, Tenant may remove or Landlord may require Tenant to remove said
security system. In either case, Tenant covenants to repair any damages
occasioned thereby and to restore the premises to the same condition as
existed before said security system installation.
16. CARPETING DAMAGE. Tenant agrees to take precautions not to damage
carpets in the leased premises and shall repair or replace such if
damaged beyond normal wear and tear.
17. FORCED ENTRY. Tenant shall be responsible for any damage to premises as
a result of forced entry into its space or burglary thereof to the
extent such damage is not covered by Landlord's casualty insurance.
18. DESTRUCTION. Either party hereto shall have the right to terminate this
Lease in the event of destruction of or damage to the Leased Premises
which is so extensive as to make impractical Tenant's use and occupancy
thereof for a period reasonably expected to be in excess of sixty (60)
days or if more than 50% of the space is reasonably expected to be
unavailable for use for in excess of sixty (60) days. Such right of
termination must be accomplished through written notice to the other
party given within thirty (30) days following the date of destruction
or damage. In the event of such termination there shall be a proration
of the rent called for herein and Landlord shall refund any excess
previously paid by Tenant. Termination shall be effective, and rent
shall be prorated as of the date on which written notice of termination
is given.
In the event of any other destruction of or damage to the Leased
Premises, or in the event neither party exercises the above mentioned
right of termination, Landlord shall forthwith repair and reconstruct
the Leased Premises. During the period of damage and repair the rent
required to be paid thereunder shall be reduced proportionate to the
amount of area which Tenant is not able to occupy because of said
destruction until such time as said area has been repaired or
reconstructed and written notice given to Tenant that such space is
available for occupancy. Whether or not this Lease is terminated as a
result of destruction of or damage to the Leased Premises, all
insurance proceeds realized under policies maintained by Landlord shall
be the sole and exclusive property of Landlord and insurance proceeds
from policies maintained by Tenant or Tenant's personal property shall
be solely Tenant's.
19. CONDEMNATION. As used in this Section the term "Condemnation
Proceeding" means any action or proceeding in which any interest in the
Property or in the Improvements is taken for any public or quasi-public
purpose by any lawful authority through exercise of the power of
eminent domain or right of condemnation or by purchase or otherwise in
lieu thereof. If the whole of the Leased Premises is taken through
Condemnation Proceedings, this Lease shall automatically terminate as
of the date of taking. If in excess of twenty (20%) percent of the
Leased Premises is taken, either party hereto shall have the option to
terminate this Lease by giving the other written notice of such
election at any time within thirty (30) days after the date of taking.
In all other cases, or if neither party exercised its option to
terminate, this Lease shall remain in effect and the rent payable
hereunder from and after the date of taking shall be proportionately
reduced on the basis of: (i) the area contained in the Leased Premises
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which is capable of occupancy after the taking; and (ii) the total area
contained in the Leased Premises which was capable of occupancy prior
to the taking. In the event of any termination or rental reduction
provided for in this Section, there shall be a proration of the rent
payable under this Lease and Landlord shall refund any excess
theretofore paid by Tenant. Whether or not this Lease is terminated as
a consequence of Condemnation Proceedings, all damages or compensation
awarded for a partial or total taking, including any sums compensating
Tenant for diminution in the value of or deprivation of its leasehold
estate, shall be the sole and exclusive property of Landlord.
20. ASSIGNMENTS AND SUBLETTING. Tenant shall not have the right to assign
this Lease or any of its interest hereunder. Tenant shall have the
right to sublet the Leased Premises, or any part thereof, only with the
prior written consent of Landlord, which consent shall not be
unreasonably withheld.
21. SURRENDER AND RIGHTS UPON TERMINATION. Upon termination of this Lease
at any time and for any reason whatsoever, Tenant shall surrender and
deliver up the Leased Premises to Landlord in the same condition as
when the premises were delivered to Tenant or as altered as provided in
Section 2, ordinary wear and tear excepted, and Tenant shall remove all
personal property from the premises. Tenant agrees to thoroughly clean
the premises after surrender. The voluntary or other surrender of this
Lease by Tenant or a cancellation hereof with the consent of both
parties shall not automatically work a merger. Rather, such occurrence
shall, at the option of Landlord, either terminate all or any existing
subleases or subtenancies or operate as an assignment to Landlord of
any or all of such subleases or subtenancies. Except as otherwise
expressly provided for in this Lease, as of and after the date of
termination hereof for any respect to each other, and of Tenant with
respect to the Leased Premises, shall cease. However, Tenant shall
fully perform and fulfill all of its obligations under this Lease
relating to events occurring or circumstances existing prior to the
date of termination.
22. HOLDING OVER. Any holding over after the expiration of the term hereof,
with the consent of the Landlord, shall be construed to be a tenancy
from month to month at the rents and on the terms and conditions herein
specified, so far as applicable. During said month to month tenancy,
Tenant agrees to give Landlord thirty (30) days prior written notice of
its intent to vacate the premises. Tenant agrees to completely vacate
the premises upon thirty (30) days prior written notice from Landlord.
Any holding over rent shall be calculated at 150% of the then existing
rent unless otherwise agreed in writing.
23. RIGHT TO CURE. In the event of any breach, default, or noncompliance
hereunder by either party hereto, the other party shall, before
exercising any right or remedy provided herein or by law, given the
defaulting party written notice of the claimed breach, default, or
noncompliance and allow thirty (30) days after such written notice for
the other party to cure except as may be provide for elsewhere in this
Lease, and except that Tenant shall be allowed only five (5) days to
cure a default regarding failure to pay rent or any other sums
hereunder. If the defaulting party is Landlord, and if prior to its
giving such notice to Landlord, Tenant has been notified in writing (by
way of Notice of Assignment of Rents and Leases, or otherwise) of the
address of the holder of the Mortgage (referred to in Section 4 above)
then affecting Landlord's interest in the aforesaid notice to Landlord,
Tenant shall, by registered mail, transmit a copy thereof to such
holder. For the thirty (30) days following the giving of the notice(s)
required by the foregoing portion of this Section 23 (or such longer
period of time as may be reasonably required to cure a matter which,
due to its nature, cannot reasonably be rectified within thirty (30)
days, the party in default shall have the right to cure the breach,
default, or noncompliance involved. If Landlord has failed to cure a
default on its part within said period, the holder of the Mortgage then
affecting Landlord's interest in the Property and Improvements shall
have an additional thirty (30) days within which to cure the same or,
if such default cannot be cured within that period, such additional
time as may be necessary if within such thirty (30) day period said
holder has commenced and is diligently pursuing the actions or remedies
necessary to cure the breach, default, or noncompliance involved
(including, but not limited to, commencement and a prosecution or
proceedings to foreclose this Lease shall not be terminated by Tenant
while such actions or remedies are being diligently pursued by said
holder. If at the expiration of the applicable period(s) provided for
in this Section 23 cure has not occurred, the aggrieved party may
exercise any available right of remedy including the right to
terminate.
24. REMEDIES. In the event either party breaches or fails to perform any of
its obligations hereunder and fails to timely cure any such default
with respect to which a right to cure exists, so long as such default
continues the other party shall have the right, at its option, to
exercise any of the following applicable rights and remedies:
A. The party not in default may itself pay or perform or cause to
be paid or performed the obligation with respect to which the
other is in default. The cost of such payment or performance,
including reasonable attorneys' fees and all expense incurred,
plus interest on all of said amounts at the rate of eighteen
6
(18%) percent per annum from the date of expenditure, shall be
immediately paid by the party in default.
B. In the event the party in default is Tenant, Landlord may
terminate this Lease, and enter the Leased Premises under due
process of law. In the event Landlord terminates this Lease
pursuant to this Paragraph b, it shall also have the right to
recover from Tenant: (i) The present worth of an amount equal
to the difference between (a) all rent which would have been
received hereunder from the date of termination to the
expiration of this Lease, and (b) the amount of rental loss
which Tenant establishes could have reasonably been avoided;
and (ii) All other amounts necessary to compensate Landlord
for all damages caused by Tenant's default or which would be
likely to result from such default.
The remedies specified in this Section 24 are cumulative and are not
intended to exclude any other remedy or means of redress to which
either party may be entitled in the event of any default or threatened
default by the other with respect to any of its obligations under this
Lease. The use by one of the parties hereto of one of the remedies
specified above or available under applicable law shall not preclude
such party from thereafter utilizing another of said remedies.
25. ENFORCEMENT. In case of default by either party in the performance of
the covenants and obligations under this Lease, the defaulting party
shall pay all costs incurred in enforcing this Lease, or any right
arising out of the breach thereof, whether by suit or otherwise,
including a reasonable attorneys' fee.
26. NOTICES. Any notice required or permitted hereunder to be given or
transmitted between the parties shall be either personally delivered or
mailed postage prepaid by certified mail, return receipt requested,
addressed as follows:
To Tenant: Cyberkinetics Neurotechnology Systems
000 Xxxxxxx Xxx, Xxxxx X
Xxxx Xxxx Xxxx, Xxxx 00000
Attn: Xxxxx X. Xxxx, Administrator
To Landlord: KAX CO.
c/o WOODBURY CORPORATION
0000 Xxxx Xxxxxxx Xxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Any notice which is mailed shall be effective on the second business
day following its date of mailing. Either party may, by notice to the
other given as prescribed in this Section 26, change the above address
for any future notices which are mailed under this Lease.
27. QUIET ENJOYMENT. Upon payment by the Tenant of the rents herein
provided, and upon the observance and performance of all the covenants,
terms and conditions on Tenant's part to be observed and performed,
Tenant shall peaceably and quietly hold and enjoy the Leased Premises
for the term hereby demised without hindrance or interruption by
Landlord or any other person or persons lawfully or equitably claimed
by, through or under the Landlord, subject, nevertheless, to the terms
and conditions of this Lease, and actions resulting from future eminent
domain proceedings and casualty losses.
28. FORCE MAJEURE. Any failure on the part of either party to this Lease to
perform any obligation hereunder, other than Tenant's obligation to pay
rent, and any delay in doing any act required hereby shall be excused
if such failure or delay is caused by any strike, lockout, governmental
restriction or any similar cause beyond the control of the party so
failing to perform, to the extent and for the period that such
continues.
29. WAIVER. One or more waivers of any covenant or condition by Landlord
shall not be construed as a waiver of a subsequent breach of the same
covenant or condition and the consent or approval to or of any
subsequent similar act by Tenant. No breach of a covenant or condition
of this Lease shall be deemed to have been waived by Landlord, unless
such waiver be in writing signed by Landlord.
30. ACCORD AND SATISFACTION. No payment by Tenant or receipt by Landlord of
a lesser amount than the amount owing hereunder shall be deemed to be
other than on account of the earliest stipulated amount receivable from
Tenant, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as rent be deemed an accord
and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such rent or
receivable or pursue any other remedy available under this Lease or the
law of the state where the demised premises are located.
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31. PARTIAL INVALIDITY. If any term, covenant or condition of this Lease or
the application thereof to any person or circumstance shall, to any
extent, be invalid or unenforceable, the remainder of this Lease, or
the application of such term, covenant or condition to persons or
circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby and each term, covenant or
condition of this Lease shall be valid and be enforced to the fullest
extent permitted by law.
32. REPRESENTATION REGARDING AUTHORITY. The persons who have executed this
Agreement represent and warrant that they are duly authorized to
execute this Agreement in their individual or representative capacity
as indicated.
33. ENTIRE AGREEMENT. This Lease constitutes the entire Agreement and
understanding between the parties hereto and supersedes all prior
discussions, understandings and agreements. This Lease may not be
altered or amended except by a subsequent written amendment executed by
all parties.
34. MISCELLANEOUS PROVISIONS. This instrument shall not be recorded without
the prior written consent of Landlord. The captions which precede the
Sections of this Lease are for convenience only and shall in no way
affect the manner in which any provisions hereof are construed. To the
extent permitted by the provisions hereof, all reservations, terms,
conditions and covenants herein contained shall be binding upon and
shall insure to the benefit of the respective heirs, personal
representatives, successors, and assigns of the parties hereto. In the
event there is more than one Tenant hereunder, the liability of each
shall be joint and several. This instrument shall be governed by and
construed in accordance with the laws of the State of Utah. Words of
any gender, and words in the singular number shall be held to include
the plural when the sense requires. Time is of the essence of this
Lease and every term, covenant and condition herein contained.
35. SECURITY DEPOSIT. The Landlord acknowledges receipt of SIXTEEN THOUSAND
AND 00/100 Dollars ($16,000) which it is to retain as security for the
faithful performance of all the covenants, conditions and agreements of
this Lease, but in no event shall the Landlord be obligated to apply
the same upon rents or other charges in arrears or upon damages for the
Tenant's failure to perform the said covenants, conditions and the
leased premises for non-payment of rent or for any other reason shall
not in any event be affected by reason of the fact that the Landlord
holds this security. The said such, if not applied toward the payment
or rent in arrears or toward the payment of damages suffered by the
Landlord by reason of the Tenant's breach of the covenants, conditions
and agreements of this Lease, is to be returned to the Tenant without
interest when this Lease is terminated, according to these terms.
In the event that the Landlord repossesses the leased premises because
of the Tenant's default or because of the Tenant's failure to carry out
the covenants, conditions and agreements of this Lease, the Landlord
may apply the said security toward damages as may be suffered or shall
accrue thereafter by reason of the Tenant's default or breach. The
Landlord shall not be obligated to keep the said security as a separate
fund, but may mix the said security with its own funds.
36. HAZARDOUS SUBSTANCES. Tenant shall not use, produce, store, release,
dispose or handle in or about the Leased Premises or transfer to or
from the Leased Premises (or permit any other party to do such acts)
any Hazardous Substance except in compliance with all applicable
Environmental Laws. Tenant shall not construct or use any improvements,
fixtures or equipment or engage in any act on or about the Leased
Premises that would require the procurement of any license or permit
pursuant to any Environmental Law. Tenant shall immediately notify
Landlord of (i) the existence of any Hazardous Substance on or about
the Lease Premises that may be in violation of any Environmental Law
(regardless of whether Tenant is responsible for the existence of such
Hazardous Substance), (ii) any proceeding or investigation by any
governmental authority regarding the presence of any Hazardous
Substance on the Leased Premises or the migration thereof to or from
any other property, (iii) all claims made or threatened by any third
party against Tenant relating to any loss or injury resulting from any
Hazardous Substance, or (iv) Tenant's notification of the National
Response Center of any release of a reportable quantity of a Hazardous
Substance in or about the Lease Premises. "Environmental Law" shall
mean any federal, state or local statute, ordinance, rule, regulation
or guideline pertaining to health, industrial hygiene, or the
environment, including without limitation, the federal Comprehensive
Environmental Response, Compensation, and Liability Act; "Hazardous
Substance" shall mean all substances, materials and wastes that are or
become regulated, or classified as hazardous or toxic under any
Environmental Law.
37. OPTION TO RENEW. Provided Tenant is not then in default under this
Lease, Tenant shall have the option to extend this Lease for one (1)
additional consecutive five (5) year period by giving Landlord written
notice at least ninety (90) days prior to the expiration of the then
firm lease period. Said extensions shall be on the same terms and
8
conditions set forth herein with the Fixed Minimum Rent as follows:
MONTHLY
Option Year 1 $16,500
Option Years 2-3 $17,000
Option Years 4-5 $17,500
38. TENANT IMPROVEMENT ALLOWANCE. Landlord shall provide an allowance for
the remodeling of the Leased Premises not to exceed ONE HUNDRED SEVENTY
THOUSAND AND 00/100 DOLLARS ($170,000). Said allowance shall be paid
directly to contractors and material suppliers, or as reimbursement to
Tenant upon submission of copies of paid bills, checks and lien
waivers. Landlord shall prior approve all anticipated remodeling and
the contractor to be hired. Any cost beyond the allowance shall be paid
directly by Tenant.
39. TERMINATION OPTION. Tenant shall have the option to terminate the Lease
effective at the end of thirty (30) months with six (6) months prior
written notice and shall pay a lease termination fee equal to all
unamortized tenant improvement costs, utilizing an 8% interest rate.
40. ADDITIONAL PROVISIONS. It is understood by the parties that Tenant
accepts the Premises in "as is" condition as shown on the attached
Exhibit "A", and will continue to operate under existing space
configuration until such time as Tenant notifies Landlord that it is
ready to commence remodeling plans.
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EXECUTED the day and year first above written.
SIGNATURES:
LANDLORD:
KAX COMPANY, A UTAH LIMITED LIABILITY COMPANY
By:____________________________________________
Xxxx X. Xxxxxxxx, Attorney-in-Fact
By:____________________________________________
Xxxxxxx X. Xxxxxxx, Attorney-in-Fact
TENANT:
CYBERKINETICS, INC., A DELAWARE CORPORATION
By:____________________________________________
Its: ________________________________
By:____________________________________________
Its: ________________________________
Notary Public
LANDLORD ACKNOWLEDGMENT
STATE OF UTAH )
: ss.
COUNTY OF SALT LAKE )
On this day of , 2004, before me personally appeared XXXX X. XXXXXXXX, to
me personally known, who being by me duly sworn, did say that he is an
Attorney-in-Fact of that certain partnership known as KAX CO., and that the
within instrument was executed by him, for and on behalf of said partnership.
Notary Public
10
Notary Public
STATE OF UTAH )
: ss.
COUNTY OF SALT LAKE )
On this day of , 2004, before me personally appeared XXXXXXX X. XXXXXXX to
me personally known, who being by me duly sworn, did say that he is an
Attorney-in-Fact of that certain partnership known as KAX CO., and that the
within instrument was executed by him, for and on behalf of said partnership.
Notary Public
Notary Public
TENANT ACKNOWLEDGMENT
(CORPORATE)
STATE OF )
: ss.
COUNTY OF )
On this day of , 2004, before me personally appeared and , known to me
to be the and of the corporation that executed the within instrument, known to
me to be the person who executed the within instrument on behalf of the
corporation therein named, and acknowledged to me that such corporation executed
the within instrument pursuant to its bylaws or a resolution of its board of
directors.
Notary Public
