COMMERCIAL LEASE
Exhibit 10.2(d)
THIS LEASE AGREEMENT made this 31st day of May, 2005, by and between Xxxx Xxxxxxx, hereinafter called “Landlord” and Spectranetics Corporation, hereinafter called “Tenant”.
1. LEASED PREMISES: Landlord
hereby leases to Tenant, and Tenant hereby lease from Landlord, the premises
known as 000 Xxxxxxxx Xxxxx containing approximately 2500 square
feet.
2. TERM: To
have and to hold the leased premises unto Tenant for a term of six
(6) months commencing on the 1st
day of June, 2005, and
ending on the 30th day of November, 2005 whereupon the
lease shall automatically renew for an additional period of
48 months commencing December 1, 2005 and ending November 30,
2009 unless Tenant exercises his one time right to terminate the
lease at the 30th day of November, 2005 with a written
notice to the Landlord thirty days prior to that date. At the end of
the initial six month term, Tenant may discuss with Landlord the
possible combining of all three leases into one and Tenant may
exercise a first right of refusal for additional space located at
000 Xxxxxxxx Xxxxx when it becomes available and combine the
lease with the other three already in effect.
LANDLORD
shall not have any liability for loss or damage to Tenant’s work
or to fixtures, equipment or other property of Tenant installed or
placed by the Tenant in the leased premises. Any occupancy by
Tenant prior to beginning of the term, even though rent free, shall
in all other respects be the same as that of a Tenant under this
lease and by such occupancy, Tenant shall be bound by all terms of
this lease. By occupying the leased premises, as a Tenant, or to
complete Tenant's work, install fixtures, facilities or equipment, or
to perform finishing work, Tenant shall be deemed to have accepted
the same and acknowledged that the leased premises are in the
condition required by the Landlord's covenants. Occupancy by the
Tenant, before the term, will be prorated to the number of days of
occupancy, unless rent free.
3. RENT: Tenant
agrees to pay the total sum of $4170 for the initial six months and if the
lease is automatically renewed per the terms of this agreement, the
Tenant shall be liable for an additional $66203.52. This is a
modified gross lease and the Landlord is responsible for the exterior
of the building, taxes, land maintenance, water, sewer, exterior
utilities and fire insurance on the structure only. All other
utilities, additional tenant finish, garbage and other services are
the responsibility of the tenant. The rent shall be paid in equal
monthly installments, IN ADVANCE, on or before the 1st day
of each month, as follows:
FIRST YEAR monthly rental amount:
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$1280 | Annual Amount: $15360 | |||||
SECOND YEAR monthly rental amount:
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$1318 | Annual Amount: $15744 | |||||
THIRD YEAR monthly rental amount:
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$1357.54 | Annual Amount: $16934.40 | |||||
OPTIONAL FOURTH YEAR monthly Amt:
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$1398.26 | Annual Amount: $17781.12 |
mailed
to the Landlord at X.X. XXX 00000, Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000.
On the anniversary date of this lease agreement and every year
thereafter until the end of this agreement, a 3% increase in rents
will be added to the prior years rental amount. One monthly
installment of the rent shall be due and payable on or before the
first day of the execution of this lease by the Tenant for the first
month’s rent and a like monthly installment shall be due and
payable on or before the first day of each calendar month succeeding
the “commencement date” during the term.
A. This
lease is expressly contingent upon Tenant providing to Landlord an
acceptable financial statement.
B. All expenses incurred by the Tenant, are the responsibility of the
Tenant. If, however, the Tenant creates a situation whereby the
Landlord incurs expenses brought on by the Tenant’s neglect or
the Tenant causes the property to be encumbered in any way, the
Landlord shall have the right to call these expenses as rents and in
the remedies herein provided for failure to pay rent.
C. The Tenant is responsible for ALL Tenant finish, and cannot
encumber or cause to encumber the premises or any adjoining premises
or any other premises not rented by the Tenant.
D. There is a Ten (10) day “grace period” after the first
of the month to pay rents.
E. LATE CHARGES: In the event the rent provided for herein is not
received by the Landlord on the first day of each month and extends
beyond the “grace period” for each month, a Late charge
equal to one quarter (1/4) percent of the monthly rental amount shall
be due and payable to the Landlord for each day of delinquency up to
25 days and one (1%) per day for delinquent payments after the
25th day. If rent is mailed, Tenant is responsible for
loss of mail or delay. Nothing contained herein shall obligate the
Landlord to accept the rent after the “grace period”, nor
does the Landlord waive any of it’s legal rights which may be
available for default of Tenant by inclusion of this provision in
this Commercial Lease. In the event Tenant pays rent by check and the
check is not honored by the Landlord’s bank, there will be a
charge of thirty five ($35) dollars for each returned check, in
addition, Tenant remains responsible for current rents, late charges
and any additional charges incurred by the Landlord for late rents.
4. USAGE: Tenant warrants and represents to Landlord that the
premises shall be used and occupied only for the purposes of light
manufacturing and/or office use. Use of toxic chemicals is not
permitted. Tenant shall not create any nuisance or otherwise
interfere with, annoy or disturb any other Tenant. Tenant shall not
commit, or suffer to be committed, any waste on the premises, nor
shall Tenant permit the premises to be used in any unlawful activity
or way which would, in the opinion of the Landlord, be extra
hazardous. Tenant accepts the Premises subject to all matters of
record and to all applicable laws.
5. SERVICES: Tenant shall arrange for and pay all charges for
Janitorial services performed in or on the Premises during the Term
of this Lease, and at such times as Landlord shall require so as to
maintain the quality and appearance of the building both inside and
out.
A. Tenant shall pay all charges for gas, electricity and other
utilities used by Tenant on the premises during the term of this
lease. If possible, all such utilities shall be separately metered
and billed in Tenant’s name. In the event that a separate
itemization is not available, Tenant shall pay it’s pro rata
portion based on the square footage or other pro rata method deemed
equitable by the Landlord. Tenant shall be responsible for all
telephone and telecommunication charges.
B. Landlord’s failure to any extent to furnish these defined
services, or any cessation thereof, shall neither render Landlord
liable in any respect for damages either to person or property, be
construed as an eviction or partial eviction of Tenant, work as an
abatement of rent, nor relieve Tenant from fulfillment of any
covenants in this lease.
6. REPAIRS AND MAINTENANCE: Unless otherwise expressly provided,
Landlord shall maintain on the roof, foundation, common parking area,
common landscaped areas, heating and air conditioning and soundness
of the exterior walls (excluding all interior and exterior glass and
all interior and exterior doors and overhead doors) of the building
in good repair and condition except for reasonable wear and tear.
Tenant shall pay for the repair of any damage caused by the
negligence or default of Tenant or Tenant’s agents, invites and
employees. Landlord shall not be liable to Tenant except as expressly
provided in this lease, for any damage or inconvenience, and
Tenant shall not be entitled to any abatement or reduction of rent be reason of any repairs,
alterations or additions made by Landlord under this lease.
A. Tenant shall forthwith at its expense replace any cracked or broken glass used in the leased premises.
B. Tenant, at it’s own expense, shall maintain and repair all plumbing fixtures, lighting
fixtures, floor coverings, interior painting, doors, trim and decoration in a good clean, safe,
proper operating and wholesome condition at all times during the term
of this lease.
C. Tenant is to return the premises to
the Landlord at the termination of this lease in as good of condition
as existed at the “commencement date” of this lease, ordinary wear
and tear excepted as defined by the Landlord. The cost for any
repairs or maintenance work to bring the premises to such condition
shall be borne by the Tenant and full or partial remedy may come
front the Tenant’s deposit.
D. Tenant must notify Landlord of any
problem with the heating and air conditioning which, according to the
terms of this lease, are the responsibility of the Landlord. If the
Landlord cannot be contacted for any reasonable reason, Tenant may
authorize repairs to the heating and air conditioning without the
Landlord’s permission provided the expensed do not exceed five
hundred ($500) dollars. The Landlord will, at Landlords earliest
convenience and upon receipt of all invoices and approval of those
invoices, reimburse Tenant for those
charges or xxxxx a portion of the rent in lieu of payment. If, for
any reason and at Landlords discretion, Landlord does not approve the
invoices, Tenant will be responsible for all or part of the expense.
The Landlord will not unreasonably withhold any approval of invoices.
7. COMMON AREAS: The term
“common areas” shall mean all that portion of building
improvements, grounds, parking, and landscaping which is constructed
for lease to Tenants or hereafter leased to Tenants. Tenants shall
not at any time interfere with the rights to Landlord and other
tenants, and their employees, customers and invites, to use any part
of the common areas. The Landlord has the right to erect “for
rent” or “for sale“ signs on the common area as well
as add any improvements as required by the Landlord.
8. ALTERATIONS AND
IMPROVEMENTS: Written approval by the Landlord for any and all
alterations and improvements is required. Landlord may at it’s
option, require Tenant, at the expense of the Tenant, to remove any
physical additional and/or repair and alteration in order to restore
the Premises to the condition existing at the time Tenant too
possession.
9. LIENS ON PREMISES: Tenant
shall not permit any lien to be placed and remain on the Premises,
building or common areas as a result of its conduct for any reason
for a period longer than thirty (30) days. Tenants shall also post
notice pursuant to Colorado Revised Statutes, 1973, as amended,
00-00-000, et. Seq. Negating Landlord’s liability for any
mechanics liens resulting from any work, labor or materials performed
for or delivered at Tenants request for incorporation into the
premises.
10. CONDEMNATION: If, during the term of this lease, all or
a substantial part of the premises are taken for any public or
quasi-public use under any governmental law, ordinance or regulation,
or by right of eminent domain or by purchase in lieu thereof, and the
taking would prevent or materially interfere with the use of the
premises by the Tenant for the purpose for which they are then being
use, this lease shall be terminated and all rents shall be abated
during the unexpired portion of the lease effective on the date
physical possession is taken by the condemning authority. Tenant
agrees that it shall have no claim to the condemnation award.
11. SECURITY DEPOSIT: The
Tenants security deposit is waived in lieu of the expected finish
work to be done by the Tenant as notified to Landlord at the signing
of this Lease. If the
Tenant fails to start the tenant finish work by the beginning of the 5th month of
this lease, Tenant will be responsible to pay a $1390 security deposit within 10 days after the
beginning of the 5th month of this lease.
12. INSURANCE: The Landlord shall at all times during the Term of the lease, maintain a policy or
policies of insurance as Landlord deems appropriate. Landlord shall not be obligated in any way or
manner to insure any personal property of the Tenant. Tenant shall, at Tenant’s expense, maintain
such other liability insurance as Tenant deems appropriate to protect Tenant AND landlord from loss
and the Landlord shall be named as “additional insured” on the tenants liability policy. A current
copy of the Tenant’s insurance policy is to be maintained by the Landlord. Tenant is to instruct
insurance carrier to supply a certificate of Liability Insurance on each renewal anniversary date
to the Landlord.
13. WAIVER OF SUBROGATION: Anything in this lease to the contrary not withstanding, Landlord and
Tenant hereby waive and release each other of and from any and all rights of recovery, claim,
action or cause of action against each other, their agents, officers or owners, employees for any
loss or damage that may occur to the premises, improvements to the common areas or building of
which the premises are a part, or personal property (building contents) within the building, by
reason of fire or the elements regardless of cause or origin, whether such loss or damage is
insured against and subject to an insurance policy in force at the time of such loss or damage.
Because this paragraph will preclude the assignment of any claim mentioned herein by way of
subrogation or otherwise to an insurance company or any other person, each party to this lease
agrees immediately to give to each insurance company which has issued to it policies of insurance
covering all risk of direct physical loss, written notice of the Terms of the mutual waivers
contained in this paragraph, and to have the insurance policies property endorsed, if necessary, to
prevent the invalidation of the insurance coverages by reason of the mutual waivers contain in this
paragraph.
14. INDEMNITY: Tenant shall indemnify and hold harmless Landlord from and against any and all
claims arising from Tenant’s use of the premises, or from the conduct of Tenant’s business or from
any activity, work or things done elsewhere. Incase any action or proceeding be brought against
Landlord by reason of such claim, Tenant shall defend the same at Tenant’s expense by counsel
satisfactory to Landlord. Tenant hereby assumes all risk of damage to property or injury to persons
in, upon or about the premises arising from any cause and Tenant hereby waives all claims in
respect thereof against Landlord in respect thereof against Landlord. Tenant hereby agrees that
Landlord shall not be liable for injury to Tenant’s business or any loss of income there from or
damage to the goods, xxxx, merchandise or other property of Tenant, Tenant’s employees, agents,
owners, contractors or invites whether such damage or injury is caused by or results from fire,
explosion, steam electricity, gas, water, rain, or from the breakage, leakage, obstruction, or the
damage or injury resulting from conditions arising upon the premises or upon other portions of the
building or common area of which the premises are a part, or from other sources or place, and
regardless of whether the cause of such damage or injury or the means of repairing the same is
inaccessible to Tenant.
15. FIRE OR OTHER CASUALTY: In the case the building shall be partially or totally destroyed by
fire or other casualty insurable under standard fire insurance so as to become partially or totally
untenable, the same shall be repaired as speedily as possible at the expense of Landlord, unless
Landlord shall elect not to rebuild, as hereinafter provided, and an equitable part of the rent
shall be abated until so repaired based upon the time and to the extent the leased premises are
untenable. If the Landlord determines not to rebuild or repair premises of the
Tenant, the Landlord will
notify the Tenant of those intentions in writing within 60 days of the casualty loss. In no event in the case of any such destruction shall Landlord be required to repair or replace Tenant’s stock in trade, lease hold improvements, fixtures, furniture, equipment,
furnishings, decorating items, trim, floor coverings and other personal property of the Tenant, agents, invites, contractors, and employees. Tenant covenants to make such repairs and replacements and to furnish Landlord, on demand, evidence of insurance assuring its ability to do so.
16. LANDLORD’S RIGHT OF ENTRY: Landlord shall during the term hereof, have the right, at all reasonable hours, to enter and inspect the premises, with or without the Tenants approval.
17.
ASSIGNMENT OF SUBLEASE: Tenant shall not assign or in any manner
transfer this lease or any interest therein, nor sublet said leased premises or any part nor
parts hereto, or permit occupancy by anyone without the prior written consent of the Landlord. Consent shall not be unreasonably withheld by Landlord.
In the event of any subletting, the Tenant shall nevertheless at all times, remain fully responsible and liable for rent payments and for compliance of all its other obligations under the terms,
provisions and covenants of this lease. In the event of any assignment of this lease, the Tenant shall be liable only for the first thirty (30) days of rent of the pre approved assignee. Any subtenant shall not be construed to constitute a release
of Tenant from the further performance of it’s obligations under this lease.
18.
DEFAULTS: REMEDIES: PAYMENTS: Time is of the essence in all matters concerning this lease. Any delay on the part of Landlord
in exercising any right or insisting upon the performance of any obligation of Tenant, shall not constitute a waiver of Landlord’s right to
exercise these rights or insist upon these performances in the future:
A. Events of Default: The following events shall be events of default by Tenant under this lease:
aa. Tenant fails to comply with any other provision or provisions of this lease.
ab. Tenant shall have failed to fully pay when due any installment of rent or any other charge provided herein.
ac. Tenant voluntary or involuntary petitions for relief pursuant to the bankruptcy or insolvency laws of the United States, or of any state,
is filed by the Tenant or guarantor.
ad.
Tenant has the attachment, seizure, levy upon or taking possession by any receiver custodian, or assignee for the benefit or creditors of any portion of the property
of Tenant or guarantor.
ae. Tenant or guarantor makes an assignment for the benefit of creditors.
af. An action against the Tenant or guarantor which effects financial conditions adversely or materially.
B. Notice of Default: In the event of a default pursuant to Section (A) above, Landlord may, by serving three (3) days written notice upon
Tenant, elect either to:
aa. Cancel and terminate this lease, or
ab. Terminate Tenant’s right to possession only without termination of this lease.
ab. Terminate Tenant’s right to possession only without termination of this lease.
C. In the event Landlord delivers to Tenant a notice of Default, which notice does not state that Landlord has elected to terminated the lease, Landlord
may at its option enter the premises and take and hold possession thereof, until tenant has met its obligation as stated by Colorado Statutes. All
rights of the Landlord may be exercised by the Landlord at the discretion of the Landlord.
D. Landlord shall have the right to cancel and terminate this lease by a service five (5) day
written notice on Tenant of such further election. Landlord shall
have the right to pursue any remedy at law or in equity that may be
available to Landlord.
E. In the event Landlord delivers to Tenant a Notice of Default which
states that Landlord has elected to terminate the lease, Landlord
shall be entitled to recover from Tenant liquidated damages in an
amount equal to the amount of rent which would be payable under the
terms of the lease for the remainder of the lease term if the lease
had not been terminated.
F. Tenant’s property. If Tenant shall fail to remove any of
Tenant’s personal property within 10 ten days of receipt of
a Notice of Default, or upon the Termination of this Lease for any
cause whatsoever, the Landlord at its option, may remove the same in
any manner that it shall choose, and store the said effects without
liability to the Landlord for loss thereof in any public or private
warehouse, and the Tenant agrees to pay Landlord upon demand, all
expenses incurred in such removal, including court costs and attorney
fees and storage charges on such personal property for any length of
time the personal property shall be in storage: or the Landlord at
its option, without notice, may sell said personal property, or any
of the same, at a private sale and without legal process, for such
prices as the Landlord may obtain, and apply the proceeds of such
sale upon any amounts due under this lease from the Tenant to the
Landlord and upon the expenses incidental to the removal, storage,
and sale of the personal property, rendering the surplus, if any, to
the Tenant.
X. Xxxx. Landlord is hereby given a lien that is subordinate to
existing lien positions at the “commencement date”.
Further, the Tenant agrees to secure this lease with equipment,
fixtures and furniture of Spectranetics Corporation.
H. Landlords Default. Should Landlord be in default under the terms
of this lease, Landlord shall have fifteen (15) days in which to cure
the same after written notice to the Landlord by the Tenant is
received.
I. Right of Entry. In the event of Tenant’s default hereunder,
Landlord may, in addition to all other rights and remedies, re-enter
the premises, change any and all locks on doors and other barriers,
and distrain, seize, remove or store, all property upon the premises.
Tenant hereby agrees that such acts by Landlord shall not constitute
an eviction, constructive or otherwise, shall not terminate this
lease, and shall not render the Landlord liable for trespass, forcible
entry and detainer, conversion.
19. ACTS OF GOD. Landlord shall not be required to perform any
covenant or obligation in this lease, or be liable in damages to
Tenant, so long as the performance or non-performance of the covenant
or obligation is delayed, caused by or prevented by an act of God or
force majeure, sit-downs, material or labor restriction, delays by
any unusual transportation delays, material or supply shortages or
back order, riots, floods, freezing, wash-outs, explosions,
earthquakes, fire storms, act of the public enemy, acts of vandals,
wars, insurrections, delays by utility suppliers, and any other cause
not reasonably within the control of the Landlord and which by the
exercise of due diligence Landlord is unable, wholly or in part, to
prevent or overcome.
20. ATTORNEY FEES. In the event Tenant default in the performance of
any of the terms, covenants, agreements or conditions in this lease,
and Landlord places in the hands of an attorney the enforcement of
all or any part due or the recovery of the possession of the
premises, Tenant agrees to pay Landlord’s attorney fees. In the
event, suit is brought against the Landlord and Landlord is found to
be at fault, Landlord shall pay for Tenants attorney’s fees.
21. HOLDING OVER. In the event of holding over by the Tenant after
the expiration or termination of this lease, the holdover shall be as
a Tenant at will and all of the terms and provisions of the lease
shall continue in force except that rents will be an amount equal to
11/2
times the rent which would have payable by Tenant had the hold over
period been part of the original term of this lease.
22. RIGHTS OF FIRST MORTGAGEE OR SUBSEQUENT TRANSFEREES.
Tenant accepts this lease subject and subordinate to any recorded
deed covering title, first or other
mortgage deed of trust lien presently existing or hereafter created
upon the premises, building and/or common areas. Tenant agrees upon
demand and in a reasonable time period to execute additional
instruments subordinating this lease as Landlord may require.
23. ESTOPPEL CERTIFICATES AND ATTORNMENT. Tenant agrees to furnish
promptly, from time to time, upon request of the Landlord’s
mortgagee a statement
certifying that the Tenant is in possession of the premises: The
premises are acceptable: the lease is in full force and effect: the
lease is unmodified: Tenants claims no present charge, lien,
or claim of offset against rent: the rent is paid for current month,
but is not prepaid for more than one month and will not be prepaid
for more than one month in advance: there is not existing default
by reason of some act or omission by Landlord: and such other matters
as may be reasonably required for foreclosure, or in the event of
exercised of the power of sale under any mortgage or deed of trust
made by the Landlord under this lease. No mortgagee shall be liable
for any act or omission of Landlord, be bound by any payment of rent,
additional rent or any other charge made more than thirty (30) days
in advance of the due date thereof, or be bound by any assignment,
surrender, termination, cancellation, amendment or modification of the
lease without the express written consent of the mortgagee.
24. GOVERNING LAW. This lease is made and delivered in the
State of Colorado and shall be interpreted, construed, and enforced
in accordance with the laws thereof.
25. SUCCESSORS. This lease shall be binding upon and inured
to the benefit of Landlord and Tenant and their respective heirs,
successors and assigns.
26. TIME OF ESSENCE. Time is of the essence in this lease.
27. MISCELLANEOUS. The captions appearing in this lease are
inserted only as a matter of convenience and in no way define, limit,
construe or describe the scope or intent of such paragraph. If any
provision of this lease shall ever be held to be invalid or
unenforceable, such invalidity or unenforceability shall not affect
any other provision of this lease, and all other provisions shall
continue in full force and effect.
28. NON WAIVER. The receipt by Landlord of rent with
knowledge of the breach of any covenant of this lease shall not be
deemed a waiver of such breach and no provision of this lease shall
be deemed to have been waived by Landlord unless such waiver be in
writing signed by the Landlord.
29. NOTICE. All rent and other payments required to be made
by Tenant shall be payable to Landlord at the address set forth
below, or at such other address as Landlord may specify from time to
time by written notice:
Landlord:
|
Xxxx Xxxxxxx X.X. Xxx 00000 Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000 |
Any
notices will be mailed to the address set forth below or at such
other address as Tenant may specify from time to time by written
notice.
Tenant:
|
Spectranetics Corporation 00 Xxxxxxxx Xxxxx Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000 |
30. LEASE EXTENSION. Tenants Lease, upon written request to the Landlord, thirty (30)
days prior to the termination date of this lease will be extended
another 12 months beyond the stated period of this lease agreement with a five (5%) percent increase in rents for that
extended period.
31. ENTIRE AGREEMENT AND LIMITATION OF WARRANTIES. It is expressly
agreed by Tenant, as a material consideration for the execution of this lease: that this lease, with
the specific references to written extrinsic documents, is the entire agreement of the parties: that
there are, and were, no verbal representations, warranties, understandings, stipulations,
agreements or promises pertaining to this lease or the expressly mentioned written extrinsic
documents not incorporated in writing in this lease. Landlord and Tenant expressly agree that
there are and shall be no implied warranties which extend beyond those expressly set forth in this
lease. It is likewise agreed that this lease may be altered, waived, amended or extended except by
an instrument in writing signed by both Landlord and Tenant. There are a total of eight (8)pages in
this lease.
Signed in County of El Paso, City of Colorado Springs, State of Colorado on this 6 day of June, 2005.
Landlord: |
Tenant: | |||||
By
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By |  |
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| Xxxx Xxxxxxx | Printed Name: | Xxxxx Xxxxxx | ||||
| Title: | V.P. Operations | |||||
