LEASE BETWEEN
Xxxxxxxxx Real Estate and Investments. Inc. (Landlord)
AND
Cryocon.lnc (Tenant)
AT
0000 Xxxxxxxxxx Xxxxx. Xxxxx. XX 00000 (Address)
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CONTENTS
1. Parties
2. Premises
3. Term
4. Termination
5. Delay in Possession
6. Early Possession
7. Rent
8. Rent increases
9. Security
10. Use
11. Conditions of Premises
12. Tenant Improvements
13. Operating Costs & Common Area maintenance Charges
14. Trade Fixtures
15. Remodeling and Renovation of Premises
16. Personal Property Taxes
17. Liability insurance
18. Waiver of Subrogation
19. Exemption of Landlord from Liability
20. Assignment and Subletting
21. Signage
22. Tenant Defaults and Remedies
23. Default by Landlord
24. Notices
25. Holding Over
26. Subordination
27. Attorney's Fees
28. Consents
29. Complete Agreement
30. Right of First Refusal
31. Amendments
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1. PARTIES. This lease, dated for reference purposes only, November 8,
2001, is made by and between Xxxxxxxxx Real Estate and Investments,
Inc.("Landlord"), and Cryocon, Inc. (Tenant).
2. PREMISES. Landlord hereby leases to Tenant and Tenant leases from
Landlord for the term, at the rental, and upon all of the conditions set
forth herein, that certain real property situated in the city of Xxxxx,
County of Xxxxx, State of Utah commonly known as approximately 2773
Industrial Dr.(+/-7800 gross square feet, 1800 square feet of office and
6000 square feet of warehouse). The above square footage to be used for
all charges or allocations on a gross square foot basis.
3. TERM. The initial term of this Lease shall be for two (2) years
commencing on January 1, 2002 and ending on December 31' 2003. Lease
payments will start at the commencement of Tenant's possession of the
Premises, unless otherwise specified, which shall not be later than
January 1, 2002. Tenant shall have the right to renew said lease for one
additional three (3) year term.
4. TERMINATION. Tenant shall provide a minimum of ninety (90) days
written notice prior to the end of the initial term and each renewal
option herein of their intent to either renew or terminate this lease.
5. DELAY IN POSSESSION. Notwithstanding said commencement date, if
Landlord cannot deliver possession of the Premises to Tenant on said
date, such failure shall not affect the validity of this Lease, but in
such case, Tenant shall not be obligated to pay rent until possession of
the Premises is tendered to Tenant. However, if Landlord has not
delivered possession of the Premises within 60 days from the date set
for beginning of the lease term, Tenant may at its option, by notice in
writing to Landlord, cancel this Lease, in which event the parties shall
be discharged from all obligation hereunder.
6. EARLY POSSESSION. If Tenant occupies the Premises prior to the
commencement date, such occupancy shall be subject to all provisions
hereof and such occupancy shall not advance the termination date.
7. RENT. Tenant shall pay to Landlord as rent for the Premises, monthly
payments of three thousand dollars ($3000.00), in advance, on the first
day of each month of the term hereof. Rent for a period during the term
hereof which is for less than one month shall be a pro rata portion of
the monthly installment.
Any rent payment(s) received on or after the fifteenth (15th) of each
month will be assessed a one hundred dollar ($100.00) late fee and also
be assessed an annual percentage rate (APR) of ten percent (10%) on the
monthly payment amount from the date payment(s) were due until paid.
8. RENT INCREASES. Upon the completion of the second (2nd) year and each
year thereafter, the monthly lease payment shall increase by the lesser
of the then most recent annualized consumer price index increase or five
percent (5%). The consumer Price Index increase shall be a percentage
equal to the percentage increase in the United States Department of
Labor Statistics new Consumer Price index for all urban Consumers
(CPI=U, National Index 1982-1984=100) published by the United States
Department of Labor Statistics using as a base the index for January 1,
2002 compared to the annualized index for the month immediately
preceding the anniversary date of the year for which the I~ase
adjustment is being made.
9. SECURITY. Landlord will waive security deposit of three thousand
dollars ($3000.00). In lieu of said deposit, tenant will make
improvements found on Exhibit # 1.
10. USE. The premises shall be occupied for use as a Cryogenic
Engineering Company. Tenant represents to landlord that neither tenant
or any affiliates will generate, store, use, release or
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dispose of any hazardous substances at or in the area of premises,
except as otherwise disclosed to landlord. Tenant will provide landlord
a list of hazardous substances used in their business
which will be included as an exhibit in this lease. Tenant agrees to
indemnify and defend landlord from and against any costs, fees or
expenses (including, without limitation, cleanup expenses, third party
claims and environmental impairment expenses and reasonable attorneys'
fees and expenses) incurred by landlord in connection with tenant's
generation, storage, or disposal of Hazardous Substances at or near the
Demised Premises. This indemnification by tenant shall survive
termination or expiration of this lease.
11. CONDITION OF PREMISES. Landlord shall deliver the Premises to Tenant
clean on November 9, 2001 and Landlord further warrants to Tenant that
the plumbing, lighting, air conditioning and heating in the premises
shall be in good operating condition on that date.
12. TENANT IMPROVEMENTS. Tenant will complete all repairs and
improvements to subject building found on Exhibit # 1. ( Landlord will
allow tenant full use of building and grounds from November 9, 2001
until December 31' 2001 to complete said repairs during this time with
no charge of rent.)
13. BUILDING OPERATING COSTS. Tenant shall have responsibility of paying
for snow removal, trash removal, water and other utilities.
Tenant may install telephone equipment, business equipment including
computer, and may remove same at the end of the term.
Tenant, at its expense, shall keep grounds, exterior, interior of
building in good repair. On the last day of the term hereof, or on any
sooner termination, Tenant shall surrender the Premises to Landlord in
good condition, ordinary wear and tear expected.
14. TRADE FIXTURES. The Tenant may install trade fixtures at its own
expenses during the term of his lease. Trade fixtures which affect
structural components of the building such as load bearing walls or
require special electrical, heat, air conditioning or ventilation may
only be installed with Landlord's consent. At the termination of the
Lease, Tenant may either leave the trade fixtures that they have
installed. If tenant chooses to remove said fixtures, any damage caused
by such removal shall be reasonably repaired by Tenant. Tenant may
install telephone equipment and business equipment, including computers,
which may be removed at the termination of the lease.
15. REMODELING AND RENOVATION OF PREMISES. All improvements made by the
Tenant must be approved by the Landlord and must comply with the law,
statutes and code set forth by that City of Xxxxx, State of Utah. Except
for the Landlord's Improvements, all costs and expenses, both for labor,
services, or materials, are to be borne by the Tenant, and the Tenant
covenants to hold the Landlord harmless for any such costs of
construction, remodeling, renewal made by the Tenant, and the Landlord
shall not be liable in any way whatsoever for any costs resulting from
such services and furnishing of labor and materials by or on behalf of
the Tenant.
16. PERSONAL PROPERTY TAXES. Tenant will pay their own personal property
taxes.
17. LIABILITY INSURANCE. Tenant shall procure and keep in effect during
the term of this lease a policy or policies of comprehensive insurance,
including public liability and property damage, with a minimum combined
single limit of liability of One Million Dollars ($1,000,000.00). The
policy or policies shall (1) name Landlord as an additional insured; (2)
be issued by an insurance company that is acceptable to the Landlord,
with a general policy holder's rating of not less than A and financial
rating of not less than AAA in the most current available Best Insurance
Reports, and
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licensed to do business in the State of Utah; and (3) provide that the
insurance shall not be canceled or shall there be any changes in the
scope or amount of coverage of the policy unless ten (10) days prior
written notice shall have been given to Landlord. The policy or
policies, or certificates thereof, shall be delivered to Landlord and
the Tenant upon commencement of the term of this lease and upon each
renewal of such insurance. Landlord will carry acceptable fire and
casualty insurance on the building in which the premises are located.
18. WAIVER OF SUBROGATION. Each party hereby releases and relieves the
other from liability and waives the right of recovery against the other
for loss or damage to property arising out of or incident to perils
insured against, whether due to negligence of either party, its agents,
employees, contractors and / or invitees. This provision shall not apply
if its effect is to invalidate otherwise applicable insurance coverage.
Each party shall take any necessary action to obtain consent of its
insurer, if necessary.
19. EXEMPTION OF LANDLORD FROM LIABILITY. Except for Landlord's
negligence or willful acts, Landlord shall not be liable for any damage
or injury to the person, business, goods, wares, merchandise or other
property of Tenant, the Tenant's employees, invitees, customers, or any
other person in or about the property of which the premises are apart,
whether such damage or injury is caused by or results from conditions
arising in or about the property or upon other portions of any building
of which the property is a part or any act or omission of any other
Tenant of any building of which the property is a part.
Furthermore, any other provisions of this lease notwithstanding, the
parties hereby agree that the demised premises may be subject to the
terms and conditions of the Americans with Disabilities Act of 1990
(hereinafter the "ADA"). The parties further agree and acknowledge that
it shall be the sole responsibility of the tenant to comply with any and
all provisions of the ADA, as such compliance may be required to operate
the demised premises. The tenant further agrees to indemnify and hold
the landlord harmless against any claims which may arise out of tenant's
failure to comply with the ADA. Such indemnification shall include, but
not necessarily be limited to reasonable attorney's fees, court cost and
judgments as a result of said claims.
20. ASSIGNMENT AND SUBLETTING. Tenant shall not voluntarily or by
operation of law assign, transfer, mortgage, or otherwise transfer or
encumber all or any part of Tenant's interest in this Lease or in the
Premises, without Landlord's prior written consent. With Landlords
approval, Tenant may sublet any part or portion of the Premises to
business or businesses that are compatible with the then existing
Tenant, and that is in compliance with the existing laws.
Notwithstanding the forgoing, landlord retains the options to disallow
any or all subletting.
21. SIGNAGE. At tenant's expense, tenant shall have the right to install
signage in accordance with the sign criteria with the owner and Ogden
Industrial Park.
22. TENANT DEFAULTS AND REMEDIES. The occurrence of anyone of the
following events shall constitute a breach of this Lease by Tenant:
A. The failure by Tenant to make any payment of rent due for 15 days
after written notice thereof from Landlord to Tenant.
B. The failure by Tenant to observe or perform any of the material
covenants, conditions or provisions of this lease to be observed or
performed by Tenant, other than described in paragraph A above, where
such failure shall continue for a period of 30 days after written notice
from Landlord. C. Failure to occupy premises stated in Paragraph #10.
In the event of any material default or breach by Tenant, Landlord may
pursue any remedy at law available to it for Tenant's breach.
23. DEFAULT BY LANDLORD. Landlord shall not be in default unless
Landlord fails to perform obligations required of Landlord within a
reasonable time, but in no event later than thirty (30) days after a
written notice by Tenant. If the nature of Landlord's obligation is such
that more than thirty (30) days are required for performance then
Landlord shall not be in default if Landlord commences performance
within such thirty (30) day period and thereafter diligently prosecutes
the same to completion, however, the Tenant shall be entitled to a
reasonable rental abatement from the date of default.
24. NOTICES. Any notice given hereunder shall be in writing and may be
given by personal delivery or by certified mail at the following
addresses:
Copy to Landlord: Copy to Tenant:
Xxxxxxxxx Real Estate and Cryocon. Inc
Investment, Inc. 0000 Xxxxxxxxxx Xx.
0000 X. 0000 X. Xxxxx, XX 00000
Xxxxx, XX 00000
Copy to Agent:
Crest Realty
c/o Xxxx XxXxxxx
0000 X. 0000 X. #0
Xxxxx, XX 00000
25. HOLDING OVER. If Tenant, with Landlord's consent, remains in
possession of the Premises after the expiration of the term of this
Lease, such occupancy shall be a tenancy from month-to- month upon all
the provisions of this Lease at the last paid monthly amount.
26. SUBORDINATION. This lease may be subordinated by Landlord to any
ground lease, mortgage or deed of Trust placed on the property on which
the Premises are located so as long as the holder of such obligation
agrees to recognize and accept this lease if Tenant is not then
materially in default under the Lease.
27. ATTORNEY'S FEES. If either party brings an action to enforce the
terms hereof, the prevailing party shall be entitle to receive
reasonable attorney's fees and court costs from the other party.
28. CONSENTS. Wherever the consent of a party is required. such consent
shall not be unreasonably withheld.
29. COMPLETE AGREEMENT. This Lease represents the full and complete
agreement of the parties with regard to the subject matter hereof and
supersedes any and all other agreements relative to this Lease, whether
written or oral.
Landlord and tenant acknowledge that they have worked with no other
brokers but Crest Realty/Xxxx XxXxxxx in this transaction. Crest
Realty/Xxxx XxXxxxx is in dual representation status and both landlord
and tenant acknowledge that they were fully aware of this dual
representation when negotiations were entered into and authorized dual
representation.
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30. RIGHT OF FIRST REFUSAL. If during the term of this lease, landlord
receives a bonafide offer to purchase the leased premises and landlord
desires to sell leased premises pursuant to such offer, tenant shall
have the right exercisable within fifteen (15) business days of the
giving of said notice by landlord to purchase the leased premises on the
same terms as those set forth in said offer. Landlord will furnish
tenant with a phase one (1) environmental study prior to closing.
31. AMENDMENT. This Lease may not be altered, amended or modified except
by a writing mutually signed by all parties obligated hereunder.
IN WITNESS WHEREOF I the parties have executed this Lease on the date
written below.
Date: 11/06/01
By: /s/ Xxxxxx X. Xxxxxx
Tenant
Its: CFO
Date: 11/08/01
By: /s/ Xxxx X. Xxxxxxxxx
Landlord
Its: Vice President
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Item I Material Cost I Labor Cost
Paint Production Floor $ 600.00 $ 80.00
Paint Room #7 $ 50.00 $ 10.00
Insulate Bay Doors $ 500.00 200.00
Paint Walls In Operations $ 200.00 $ 50.00
Paint Panels outside $ 10.00 $ 10.00 Approx
Cost to Create
Paint Stripes in Parking lot $ 100.00 $ 10.00
Additional Office in Warehouse$2000.00
Clean Carpets $ 100.00 $ 30.00
Replace/Install Lights $ 720.00 $150.00
Secure Back Gate $ 50.00 $
Cover Holes in Back of BLDG $ 10.00 $
Set Up Paging System $ 70.00 $ 20.00
Install Cat 5 Cable $ 60.00 $150.00
Phone System $ 50.00 $150.00
Install Computer System/Room $ 500.00 $300.00
Landscape $ $150.00
Tree Clean-Up/Removal on
East Side Of BLDG $ $600.00
All Item I Labor Costs are estimated
based
Sealing:.West Plot f,~,1-'.., ~;, ...1" $ 200.00 $ 800.00
on existing
knowledge and condition of building.
Power Supply ~,-t"1. ~ p $ 3,000.00
$ 100.00
Cost of Material $ 6,670.00
Replace Roller on Fence $
150.00 $ 50.00
Cost of Labor $ 2,930.00
Convert Lunch Room into Office $ 250.00 $ 70.00
Total Cost $ 9,600.00
Total Cost with Change Locks $ 50.00 $
Additional Office $ 11,600.00 `
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