Exhibit 10.9(a)
COMMERCIAL NET BUILDING AND GROUND LEASE
OF
LINCOLN AIR PARK WEST
This Lease Agreement is executed in duplicate this 16th day of Nov.,
1999, between Airport Authority of the City of Lincoln, Nebraska, hereinafter
referred to as "Authority", and BioNebraska, Inc., a corporation, hereinafter
referred to as "Lessee".
WITNESSETH:
WHEREAS, in accordance with Article 5, Chapter 3 of the Statutes of
Nebraska, the City Council of the City of Lincoln, Nebraska, by appropriate
action in 1959, created an Airport Authority and transferred to the Authority
the right to use, occupy and manage certain real estate owned by or acquired in
the name of the City of Lincoln, including the land leased herein, located on
Lincoln Airport in an area denominated "Lincoln Air Park West"; and
WHEREAS, the Authority deems it advantageous to the support, operation
and public purpose of the Airport to lease to Lessee that certain building and
parcel of land described herein; and
WHEREAS, this Lease will supersede and cancel the prior Lease between
the parties, originally effective August 1, 1996; and
WHEREAS, the Lessee proposes to lease on a net basis from the
Authority, as herein provided, the ground area and building all as herein
described.
NOW, THEREFORE, it is mutually agreed between the parties as follows:
1. Authority, in consideration of the rents to be paid by Lessee
as hereinafter set forth, and of the covenants and agreements hereinafter
stipulated to be mutually kept and performed by the parties hereto, does
hereby lease unto Lessee the following described premises situated in Lincoln
Air Park West upon Lincoln Airport, Lincoln, Nebraska, to-wit:
Building No. 2274 consisting of approximately 15,435 square feet and
4,913 square feet of tenant additions to date and 108,045 square feet
of adjacent sidewalks, drives and grounds as outlined in red on the
attached Exhibit "A"; and 21,060 square feet of land as shown outlined
in blue on the attached Exhibit "A."
together with the improvements and appurtenances thereunto belonging or in any
wise appertaining, including the right of ingress and egress thereto and
therefrom at all times. Authority agrees to keep a street open from the leaned
premises to a public street or highway.
2. Lessee shall have and hold said premises for the basic term of
fourteen (14) years beginning November 1, 1999, and ending October 31, 2013,
unless sooner terminated as hereinafter provided.
3. Lessee shall pay Authority, as rent for the premises herein leased
as follows:
a. For the term of November 1, 1999, through March 31, 2003, as
base rental at the rate of $2.41 per square foot per year
for 15,435 square feet for the sum of Three Thousand One
Hundred Three Dollars and Nine Cents ($3,103.09) per month,
and in addition thereto, Lessee shall pay Authority as
reimbursement of construction costs advanced by Authority
the sum of Four Thousand Three Hundred One Dollars and
Ninety-one Cents ($4,301.91) per month for a total payment
of Seven Thousand Four Hundred Five Dollars ($7,405.00) per
month, and in addition thereto, 21,060 square feet of land
at the rate of $.12 per square foot for a sum of Two
Hundred Ten Dollars and Sixty Cents ($210.60) per month,
payable in advance on the first day of each month beginning
November 1, 1999, and ending March 31, 2003; and
b. For the term of April 1, 2003, through March 31, 2008, at the
rate of $2.77 per square foot per year, for 15,435 square feet
for the sum of Three Thousand Five Hundred Sixty-eight Dollars
and Forty-five Cents ($3,568.45) per month, and in addition
thereto, 21,060 square feet of land at the rate of $.13 per
square foot for a sum of Two Hundred Twenty-eight Dollars and
Fifteen Cents ($228.15) per month, payable in advance on the
first day of each month beginning April 1, 2003, and ending
March 31, 2008; and
c. For the term of April 1, 2008, through October 31, 2013, at
the rate of $3.92 per square foot per year, for 15,435 square
feet for the sum of Five Thousand Forty-nine Dollars
($5,049.00) per month, and in addition thereto, 21,060 square
feet of land at the rate of $.14 per square foot for a sum of
Two Hundred Forty-five Dollars and Seventy Cents ($245.70) per
month, payable in advance on the first day of each month
beginning April 1, 2008, and ending October 31, 2013; and
d. Authority has advanced funds for construction costs to
Lessee upon Lessee's agreement for reimbursement. The
parties wish to consolidate two prior loans together with
one new loan. The loans for consolidation are a loan dated
July 16, 1996, which has a current principal balance of
$286,644.26, and a loan dated July 21, 1998, which has a
current principal balance of $279,184.64, and a new loan as
of November 1, 1999, with a current principal balance of
$395,000.00. The total combined principal balance of all
loans is $960,828.90. Lessee agrees to reimburse Authority
$960,828.90 plus interest at eight and three-quarters
percent (8 3/4%) over fourteen (14) years, payable at the
rate of Nine Thousand Nine Hundred Thirty-eight Dollars and
Sixty-eight Cents ($9,938.68) per month payable in advance
on the first day of each month beginning November 1, 1999,
and ending October 31, 2013.
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4. In the event that Lessee has complied with all of the terms and
provisions of this Lease, then, in that event, Authority further gives and
grants to Lessee the right, privilege and option of renewing this Lease at the
expiration of the fourteen (14) year term hereinabove provided, for an
additional term of five (5) years beginning November 1, 2013, and ending October
31, 2018, upon the same terms, conditions and agreements herein set forth,
excepting the rental rate. Lessee shall pay Authority for the option term at the
rate of $4.51 per square foot for 20,348 square feet for the sum of Seven
Thousand Six Hundred Forty-seven Dollars and Forty-six Cents ($7,647.46) per
month, payable in advance on the first day of each month beginning November 1,
2013, and ending October 31, 2018. This option shall be exercised by Lessee
giving Authority at least ninety (90) days written notice prior to the
expiration of the current term of Lessee's intention to renew the Lease for the
additional term. This Lease shall expire in any event no later than October 31,
2018.
5. Authority acknowledges receipt of Five Thousand Two Hundred Dollars
($5,200.00) that Authority is to retain as security for the faithful performance
of the terms and conditions of this Lease. In no event shall Authority be
obligated to apply the deposit on rents or other charges in arrears or on
damages for failure to perform the terms and conditions of this Lease by Lessee.
Application of the security deposit sum to the rental payments in arrears or to
damages shall be at the sole option of Authority and the right to possession of
the premises by Authority for nonpayment of rent or for any other reason shall
not in any event be affected by this security deposit. The security deposit will
be returned to Lessee when this Lease is terminated, according to the terms of
this Lease, if not applied toward payment of rent or toward payment of damages
suffered by Authority by reason of any breach of the terms and conditions of
this Lease by Lessee. In no event is the security to be returned until Lessee
has vacated the premises in good condition and delivered possession to
Authority. The security deposit will draw no interest and Authority shall not be
obligated to hold the deposit in a separate fund.
6. All rentals due under this lease shall be paid, without notice to
the Lessee, to the Airport Authority of the City of Lincoln, Nebraska. An
additional charge of fifteen percent (15%) per annum on unpaid items shall be
made by Authority from the first day of the month due, of any amounts due under
this lease which shall remain unpaid for more than ten (10) days after due date.
Such charge shall not accrue upon any item about which there exists a bona fide
dispute.
7. It is understood and agreed that as of the initial date of this
Lease, the leased premises are not subject to real estate taxes and are not
subject to a payment in lieu of taxes. However, it is agreed that if a law or
ordinance is passed whereby the leased premises become subject to real estate
tax or subject to a payment in lieu of tax, then Lessee shall pay the said tax
or payment in lieu of tax, in addition to any rental fees specified in this
Lease.
8. Lessee will use the premises for the purpose of the business of
research and production of bio-technology and other scientific products, for
offices and such other uses as may be incidental and related thereto.
9. Except as herein otherwise specifically provided, this Lease, in
every sense, shall be without cost to Authority for the development, maintenance
and improvement of the leased premises and Lessee shall, at its sole cost,
except as herein otherwise specifically provided, keep, maintain
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and repair the entirety of the leased premises, and all improvements and
facilities placed thereon, in good order, condition and repair as may be
required by ordinary and reasonable use or fault on the part of the Lessee.
By entry hereunder, Lessee accepts the premises as being in good order,
condition and repair and agrees, upon termination of this Lease, to surrender
the premises and appurtenances to Authority in the same condition as
received, reasonable use and wear thereof and damage by fire, act of God or
the elements excepted.
10. Lessee shall have the right, during the term of this Lease, to make
alterations, attach fixtures and erect signs in or upon the premises hereby
leased (provided any exterior signs shall be erected only after written approval
of plans by Authority), and all improvements, appliances, fixtures and all other
property, of whatever nature made to or placed upon said premises by Lessee,
shall be and remain the property of Lessee and may be removed prior to the
termination of this Lease, provided only that Lessee shall restore the premises
to the same condition as existing at the time of entry under this Lease,
ordinary wear and tear excepted.
11. Lessee, beginning on November 1, 1999, and during the full term or
until earlier termination of this Lease, shall cause the premises and all
improvements owned by the Authority on the demised premises to be kept insured
in an amount not less than Two Million Dollars ($2,000,000.00), thereof against
perils of fire and extended coverage. Either party may, at not less than one (1)
year intervals, demand a reappraisal of the actual cash value to be determined
by mutual agreement, but on failure to agree, appraisal to be made by a third
party selected by the parties. If there are pressure vessels on the demised
premises now or during the term of this Lease, Lessee will cause insurance to be
placed to protect the property against the hazards of the operation or location
of this equipment on the premises. The proceeds of any such insurance paid on
account of the perils aforesaid will be used to defray the costs of repairing
the damage done to said improvement. If Lessee cancels the Lease or if Authority
cancels the Lease due to total destruction or destruction of more than fifty
percent (50%) of the value of the premises, such proceeds need not be devoted to
such repair, restoration, or reconstruction but may be retained by Authority.
Lessee agrees to pay the costs of such insurance in addition to the rents herein
provided to be paid by Lessee. The policy or policies will be in the name of the
Lincoln Airport Authority and Lessee as their interests may appear, and
Authority agrees to release Lessee from liability for damage covered under the
above-mentioned policies. The policy shall contain a provision that Authority
shall be notified by the insurance company of such non-renewal, material change,
modification or cancellation of such insurance coverage by at least ten (10)
days notice to Authority and the policy shall contain a provision waiving any
subrogation right of the insurance company to recover damages against either
Lessee or Authority by reason of any sums paid by the insurance company under
said insurance policy.
12. If the building leased hereunder is destroyed, damaged or taken by
fire or the elements or other casualty, or by condemnation, and the destruction
or taking is such that, in the exercise of reasonable effort, it cannot be
repaired or replaced by Authority within one hundred twenty (120) days or, if it
is such as to exceed fifty percent (50%) of the value of the premises, Lessee or
Authority may cancel this Lease by written notice mailed to the other party
thirty (30) or more days before the effective date of cancellation and at any
time within sixty (60) days after the damage or destruction. If the premises are
totally destroyed or taken, Lessee or Authority may
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cancel this Lease by written notice mailed to the other party within thirty
(30) days of the destruction or taking. If this Lease is not canceled as
provided, Authority, as its expense, shall, with diligence, repair, rebuild
or restore the improvements as nearly as possible to the conditions existing
just prior to the destruction or damage. Lessee's rental, during the period
from the date of fire, or other casualty or taking, to the date of complete
restoration, shall be abated either in whole or pro rata in part, according
to the percentage of interference with the conduct of Lessee's business in
the premises.
13. Lessee shall defend, indemnify and hold Authority and its agents,
officers and employees harmless from and against any and all claims, suits,
demands, actions, liabilities, losses, damages, judgments or fines arising by
reason of injury or death of any person, or damage to any property, including
all reasonable costs for investigation and defense thereof (including, but not
limited to, attorney fees, court costs, investigator fees, and expert fees) of
any nature whatsoever arising out of Lessee's activities on Authority's
property, or in its use or occupancy of the leased premises, regardless of where
the injury, death or damage may occur, except to the extent such injury, death
or damage is caused by the negligent act or omission or willful misconduct of
Authority. Authority shall give Lessee reasonable notice of, and an opportunity
to defend against, any such claims or actions. Notwithstanding the above
indemnification, Lessee shall give Authority reasonable notices of any matter
covered herein and shall forward to Authority a copy of every demand, notice,
summons or other process received in any claim or legal proceeding covered
hereby. Lessee agrees to obtain liability insurance in the amount of One Million
Dollars ($1,000,000.00) including the Airport Authority as an additional
insured. Said insurance policy shall contain a provision to notify the Airport
Authority in writing thirty (30) days prior to any cancellation or reduction of
coverage.
14. Lessee shall pay for all water, sewer, gas, heat, light, power and
telephone service supplied to the said premises, including standard metering
devices for the measurement of such services. In the event it shall become
necessary, as a condition of service, to make changes upon the premises, or
within the building covered by this Lease, of any wiring, plumbing or similar
installations, Lessee will make such changes and installations, at its expense,
as directed and required by the utility organizations. It is further agreed that
Authority shall have the right, without cost to Lessee, to install and maintain
in, on or across the leased premises, sewer, water, gas, electric, steam and
telephone lines, or other installations necessary to the operation of the
Airport or to service required by other tenants of the Authority; provided,
however, that Authority shall carry out such work and locate any above-ground
structures in a manner so as not to unreasonably interfere with Lessee's use of
the premises.
15. Lessee agrees that all storage of equipment, materials or supplies
will be maintained within the building (temporary storage for loading or
unloading excepted), and Lessee will cause to be removed, at its own expense,
all junk, waste, garbage and rubbish and perform necessary mowing and snow
removal and agrees not to deposit the same on any part of the Airport except,
Lessee may deposit the same temporarily on the leased premises in connection
with collection for removal.
16. Lessee shall, in the use of the premises, comply with all
applicable requirements of all municipal, state and Federal authorities now in
force, or which may hereafter be in force, and will
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observe all applicable municipal ordinances, state and Federal statutes now
in force, or hereafter to be in force, and Lessee and its tenants, employees,
agents and servants shall obey such reasonable rules and regulations as may
from time to time be promulgated by Authority, or its authorized agents in
charge of the Airport, to insure the safe or orderly conduct of operations of
the Airport and traffic to, from and upon the leased premises.
17. Authority reserves the right to take any action it considers
necessary to protect the aerial approaches of the Airport against obstruction,
together with the right to prevent Lessee from erecting, or permitting to be
erected, any building or other structure on the Airport which, in the opinion of
Authority, would limit the usefulness of the Airport or constitute a hazard to
aircraft.
18. It is understood and agreed that the rights granted by this
Agreement will not be exercised in such a way as to interfere with or adversely
affect the use, operation, maintenance or development of the Airport.
19. There is hereby reserved to Authority, its successors and assigns,
for the use and benefit of the public, a free and unrestricted right of flight
for the passage of aircraft in the airspace above the surface of the premises
herein conveyed, together with the right to cause in said airspace such noise as
may be inherent in the operation of aircraft, now known or hereafter used for
navigation of or flight in the air, using said airspace or landing at, taking
off from, or operating on or about the Airport.
20. Lessee shall not assign this Lease, or any interest therein, and
shall not sublet the premises in whole or in part and any such assignment or
subletting shall be void and shall, at the option of Authority, terminate this
Lease.
21. Authority shall have free access to the leased premises at all
reasonable times for the purposes of examining or inspecting the conditions
thereof relevant to any right or power reserved by Authority pursuant to the
terms of this Lease.
22. The failure of Lessee to surrender the leased premises on the date
provided herein for the termination of this Lease term, and the subsequent
holding over by Lessee, with or without the consent of Authority, shall result
in the creation of a tenancy from month-to-month. This holding over shall not
result in a renewal or extension of this Lease. All other terms and conditions
of this Lease shall remain in full force and effect during any month-to-month
tenancy hereunder, except rental rate, which may be increased by Authority after
notice to Lessee.
23. Authority may elect to terminate all of the rights of Lessee
hereunder by giving ten (10) days written notice of termination to Lessee when
any of the following shall occur:
a. Institution of voluntary bankruptcy proceedings by Lessee;
b. Institution of involuntary bankruptcy proceedings in which Lessee
thereafter is adjudged a bankrupt;
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c. Assignment for benefit of creditors of the interest of Lessee
under this Lease;
d. Appointment of a receiver for the property or affairs of Lessee;
e. Failure or refusal to pay rent as per the terms of this Agreement;
f. Breach of covenants and terms of this Agreement.
Any occurrence set forth above shall constitute a breach of this Lease
by Lessee and Authority shall, in that event, be entitled to exercise all
remedies herein provided for a breach by Lessee, as well as any and all remedies
provided by law or in equity. It is further agreed that upon said breach and
after notice as provided above, Authority may re-enter the leased premises and
remove all property of Lessee therefrom.
24. Lessee agrees that it will, by Lease Addendum, agree to such
additional provisions as may be required by the FAA as a condition of granting
to Authority funds for Airport improvement projects as or FAA or Authority deem
necessary for the operations, safety and security of the Airport.
25. Lessee shall not cause or permit any hazardous substance or
material to be brought upon, kept or used in or about the premises by Lessee,
its agents, employees, contractors or invitees, except for such use as is in
compliance with all laws, ordinances and regulations.
26. Lessee shall comply with all regulations promulgated by the Federal
Aviation Agency, Environmental Protection Agency, Nebraska Department of
Environmental Quality, Nebraska Department of Health, the Xxxxxxx-Xxxxxxxxx
County Department of Health and any other agency of municipal, state or Federal
government which regulates Lessee's use of the premises.
27. Lessee shall not cause or permit any hazardous substance or
material to be brought upon, kept or used in or about the premises by Lessee,
its agents, employees, contractors or invitees, except for such Hazardous
Substance or Material as is necessary for Lessee's business.
28. Any Hazardous Substance or Material permitted on the Premises and
all containers therefore, shall be used, kept, stored, and disposed of in a
manner that complies with all federal, state, and local laws or regulations
applicable to any such Hazardous substances or Materials.
29. Lessee shall not discharge, leak, or emit, or permit to be
discharged, leaked, or emitted, any substance or material into the atmosphere,
ground, sewer system, or any body of water, if such material (as determined by
the Authority or any governmental authority) does or may pollute or contaminate
the same, or may adversely affect (a) the health, welfare, or safety of persons,
whether located on the Premises or elsewhere; or (b) the condition, use, or
enjoyment of the building or any other real or personal property.
30. At the commencement of each Lease Year, Lessee shall disclose to
Authority the names and approximate amounts of all Hazardous substances or
Materials which Tenant intends to
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store, use, or dispose of on the Premises in the coming Lease Year. In
addition, at the commencement of each Lease Year, beginning with the second
Lease Year, Lessee shall disclose to Authority the names and amounts of all
Hazardous Substances or Materials which were actually used, stored, or
disposed of on the Premises if such materials were not previously identified
to Authority at the commencement of the previous Lease Year.
31. As used herein, the term "Hazardous Substance or Material" means:
a. Any "hazardous waste" as defined by the Resource
Conservation and Recovery Act of 1976, as amended from time
to time, and regulations promulgated thereunder;
b. Any "hazardous substance" as defined by the Comprehensive
Environmental Response, Compensation and Liability Act of
1980, as amended from time to time, and regulations
promulgated thereunder;
c. Any glycol, oil, petroleum products, and their byproducts;
and
d. Any material or substance which is or becomes regulated by
any federal, state, or local governmental authority.
32. Lessee agrees that it shall be fully liable for all costs and
expenses related to the use, storage, and disposal of Hazardous Substance or
Material kept on the Premises by the Lessee, and the Lessee shall give immediate
notice to the Authority of any violation or potential violation of the
provisions of this Lease. Lessee shall defend, indemnify, and hold harmless
Authority and its Agents from and against any claims, demands, penalties, fines,
liabilities, settlements, damages, costs, or expenses (including, without
limitation, attorneys' and consultant fees, court costs, and litigation
expenses) of whatever kind or nature, known or unknown, contingent or otherwise,
arising out of our in any way related to:
a. The presence, disposal, release, or threatened release of any such
Hazardous Substance or Material which is on, from, or affects
soil, water, vegetation, buildings, personal property, persons,
animals, or otherwise;
b. Any personal injury (including wrongful death) or property damage
(real or personal) arising out of or related to such Hazardous
Substance or Material;
c. Any lawsuit brought or threatened, settlement reached, or
government order relating to such Hazardous Substance or Material;
or
d. Any violation of any laws applicable thereto. The provisions of
this Lease shall be in addition to any other obligations and
liabilities Lessee may have to Authority at law or equity and
shall survive the transactions contemplated herein and shall
survive the termination of this Lease.
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33. Lessee shall comply with all regulations promulgated by the Federal
Aviation Agency, Environmental Protection Agency, Nebraska Department of
Environmental Control, Nebraska Department of Health, the Xxxxxxx-Xxxxxxxxx
County Department of Health and any other agency of municipal, state or Federal
government which regulates Lessee's use of the premises.
34. All notices to be given pursuant to this Lease shall be addressed
to the Airport Authority, Lincoln Airport, X.X. Xxx 00000, Xxxxxxx, Xxxxxxxx
00000, or to the Lessee herein named at 0000 XX 00xx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000, notice shall be deemed to have been fully given if and when enclosed in a
properly sealed envelope or wrapper addressed as aforesaid and deposited,
postage prepaid, in a post office regularly maintained by the United States
Government.
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IN WITNESS WHEREOF, the parties have hereunto set their hands the day
and year first above written.
Attest:
AIRPORT AUTHORITY OF THE CITY OF
LINCOLN, NEBRASKA, Lessor
/s/ Xxxxx Xxxxx By: /s/ Xx Xxxxxx
--------------------------------------- ---------------------------------
Secretary Chairman
Attest: BIONEBRASKA, INC., a Corporation,
Lessee
---------------------------------------
Secretary
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
APPROVED AS TO FORM:
/s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Xxxxxxx & Xxxxx, P.C.
Legal Counsel for the Airport Authority
of the City of Lincoln, Nebraska
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