EXHIBIT 10.5
SUBLEASE
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THIS SUBLEASE (this "SUBLEASE"), dated as of February 27, 1998, is by
and between THE XXXXXXX COMPANY, INC., a Delaware corporation
("SUBLANDLORD"), GLOBAL WATER TECHNOLOGIES, INC., a Delaware corporation
("SUBTENANT"), and XXXXXX X. XXXX, an individual ("XXXX"), as to the
purchase option and purchase obligations set forth below.
R E C I T A L S
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A. Sublandlord entered into that certain Lease and Security
Agreement, dated as of December 27, 1995, as amended by that certain
Amendment No. 1 [Colorado Lease], dated as of April ___, 1996 (as amended,
the "MASTER LEASE"), with Sumitomo Bank Leasing and Finance, Inc., a
Delaware corporation ("SUMITOMO"), as landlord, pursuant to which
Sublandlord leases certain real property and the improvements thereon (the
"PROPERTY") located in Golden, Colorado, as more fully described in the
Master Lease, having a street address of 0000 Xxxxxx Xxxx Xxxxxxxxx,
Xxxxxx, Xxxxxxxx. A copy of the Master Lease is attached hereto and,
subject to Paragraph 5 below, incorporated herein by this reference as
EXHIBIT "A."
B. Subtenant desires to sublet from Sublandlord and Sublandlord
desires to sublet to Subtenant, the Property, as more fully described
below.
AGREEMENT
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For and in consideration of the covenants and agreements herein
contained, Sublandlord and Subtenant hereby agree as follows:
1. SUBLEASE OF THE PROPERTY. Subject to and upon the terms,
provisions and conditions of this Sublease, Sublandlord hereby leases to
Subtenant, and Subtenant hereby leases from Sublandlord, the Property.
2. TERM. The term of this Sublease shall commence on March 10,
1998 and shall end on December 31, 2000, unless sooner terminated pursuant
to law or as provided in this Sublease or the Master Lease; provided,
however, that no expiration or termination of the term of this Sublease
shall relieve Subtenant of its liabilities or obligations hereunder or
relieve Xxxx of his obligation hereunder to purchase the Property, all of
which shall survive such expiration or termination. Such term of this
Sublease is hereinafter referred to as the "TERM."
3. USE. Subtenant shall use the Property only for the use or uses
permitted under the Master Lease.
4. RENT; SECURITY DEPOSIT.
(a) Commencing on May 1, 1998, Subtenant shall pay to
Sublandlord base rent (the "BASE RENT") as follows:
May 1, 1998 through December 31, 1998: $20,680 per month;
January 1, 1999 through December 31, 1999: $22,560 per month; and
January 1, 2000 through December 31, 2000: $24,440 per month.
Subtenant shall not be obligated to pay any Base Rent to
Sublandlord for the period between the commencement of the Term and April
30, 1998. Base Rent may be increased in accordance with the provisions of
Section 29(c) below. Each such monthly payment of Base Rent shall be
payable on the date that is ten Business Days (as defined in the Master
Lease) prior to the Payment Date (as defined in the Lease) or other date
that the corresponding payment of Rent (as defined in the Master Lease) is
due under the Master Lease. All Base Rent and other charges due hereunder
shall be paid without notice, demand, offset or deduction (except as may be
specifically permitted pursuant to the terms hereof) in immediately
available lawful currency of the United States of America at the address of
Sublandlord set forth in Paragraph 26 below or such other place as
Sublandlord may from time to time designate in writing.
(b) Subtenant has deposited with Sublandlord the sum of $39,607
as a security deposit (the "DEPOSIT"). Sublandlord shall retain the
Deposit as security for the full and faithful performance of every
provision of this Sublease to be performed by Subtenant. If Subtenant or
Xxxx defaults with respect to any provision of this Sublease, including,
but not limited to the provisions relating to the payment of rent or the
purchase of the Property, Sublandlord may use, apply or retain all or any
part of the Deposit for the payment of any rent or any other sum in
default, or for the payment of any amount which the Sublandlord may spend
or become obligated to spend by reason of Subtenant's default or to
compensate the Sublandlord for any other loss or damage which the
Sublandlord may suffer by reason of Subtenant's default or may apply the
Deposit against the liquidated damages Xxxx is required to pay pursuant to
Section 29(b)(iii) below; on the condition that if Xxxx pays the entire
amount of liquidated damages due pursuant to Section 29(b)(iii) below
within five days after the date that such amounts are due, Sublandlord will
not apply the Deposit against the liquidated damages. If any portion of
the Deposit is used or applied in accord with this Paragraph 4(b),
Subtenant shall within five days after the written demand thereof deposit
cash with Sublandlord in an amount sufficient to restore the Deposit to its
original amount and Subtenant's failure to do so shall be deemed to be a
material breach of this Sublease. Sublandlord shall not be required to
keep the Deposit separate from its general funds and Subtenant shall not be
entitled to interest on the Deposit; however, subject to Sublandlord's
rights to use, apply or retain the Deposit set forth in this Section 4(b),
Sublandlord acknowledges that Sublandlord is holding the Deposit in trust
for Subtenant. If Subtenant and Xxxx shall fully and faithfully perform
each and every provision of this Sublease, then, and only then, the Deposit
or any balance thereof shall be returned to the Subtenant at the expiration
of the Term and upon Subtenant's vacation of the Property; provided,
however, that in no event shall Sublandlord be under any obligation to
return the Deposit earlier than 60 days after the expiration of the Term or
after the Subtenant's vacation of the Property, whichever occurs last;
however,
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Xxxxxxxxxxx agrees that if Subtenant is entitled to the return of the
Deposit pursuant to the terms hereof, Sublandlord will return such Deposit
to Subtenant within 120 days after the expiration of the Term or the
Subtenant's vacation of the Property, whichever occurs last.
5. MASTER LEASE.
(a) This Sublease is subject and subordinate to the Master
Lease. Except as may be inconsistent with the terms hereof and except for
Sections 7.1, 7.4, 7.5, 15.2, 26.6, 26.7, 26.8, 26.9, 26.10, 32.1(b), 33.4
and 33.8 and Articles II, III, IV, V, VI, XX (other than to the extent set
forth in Section 16(a) below), XXI, XXII, XXIII, XXIV, XXV, XXX and XXXI of
the Master Lease, all of the terms, provisions, covenants and conditions of
the Master Lease are hereby incorporated herein and shall be applicable to
this Sublease as if Sublandlord was the landlord under the Master Lease
and Subtenant was the tenant thereunder (i.e, for purposes of interpreting
the Master Lease as incorporated herein by this Paragraph 5, all references
to "Lessor" in the Master Lease shall mean Sublandlord and all references
to "Lessee" shall mean Subtenant). This Sublease and the Master Lease are
intended by Sublandlord and Subtenant to be construed together to give the
broadest possible effect and interpretation thereof for the benefit of
Sublandlord; provided, however, that if it is not possible to construe this
Sublease and the Master Lease together for the benefit of Sublandlord with
respect to a particular provision or provisions, then the provision or
provisions of this Sublease shall control in connection therewith.
Subtenant shall and hereby agrees to be subject to and bound by and to
comply with all of those provisions of the Master Lease incorporated herein
with respect to the Property as if Subtenant was the Lessee thereunder, to
satisfy all applicable terms and conditions of the Master Lease for the
benefit of Sublandlord and Sumitomo, and to defend, indemnify and hold
Sublandlord harmless against any and all claims or liability to Sumitomo or
any other party for failure to do so.
(b) In the event of default by Subtenant or Xxxx under this
Sublease (including, without limitation, the provisions of the Master Lease
incorporated herein), Subtenant agrees that at Sublandlord's option,
Sublandlord shall have the same remedies with respect to Subtenant that
Sumitomo has with respect to Sublandlord under the Master Lease or such of
those remedies as Sublandlord determines in its sole discretion are
applicable and elects to exercise. Notwithstanding anything to the
contrary contained herein, it is further understood and agreed that
Sublandlord has no duty or obligation to Subtenant or Xxxx under the
provisions of the Master Lease incorporated herein and any covenants or
obligations of Sumitomo under the Master Lease shall not be deemed to be
covenants or obligations of Sublandlord hereunder.
(c) If the Master Lease shall be terminated for any reason,
Subtenant's right to possession of the Premises pursuant to this Sublease,
if not sooner terminated hereunder, shall automatically terminate on the
effective date of termination of the Master Lease (whether or not an Event
of Default (as defined in Paragraph 16 below) has occurred hereunder) and
Sublandlord shall not be liable to Subtenant or any other person for loss,
damage or expense resulting therefrom; provided, however, that if such
termination is a result of a default under the Master Lease which is not
also a default by Subtenant under this Sublease and Xxxx is ready, willing
and able to purchase the Property at such time but Sublandlord is unable or
unwilling to cause
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Sumitomo to convey the Property to Xxxx at such time, then Sublandlord
shall be liable to Subtenant and Xxxx for actual (but not consequential)
damages in an amount not to exceed $100,000 in the aggregate for both
Subtenant and Xxxx, plus up to $25,000 in actual damages to the extent
actually paid by either Subtenant or Xxxx to a subtenant leasing a portion
of the Property from Subtenant or Xxxx for the actual (not consequential)
damages of such subtenant. Neither Subtenant nor Xxxx shall be entitled to
recover any other damages from Sublandlord in connection with a termination
of the Master Lease. If such termination shall be due to the fault of
Subtenant or a breach by Subtenant or a failure by Subtenant to perform any
of its obligations hereunder (including the provisions of the Master Lease
incorporated herein), Sublandlord shall be entitled to recover from
Subtenant and Subtenant shall pay, in addition to all other sums to which
Sublandlord may be entitled, all damages, losses, costs and expenses
(including attorneys' fees) suffered or incurred by Sublandlord as a result
of such termination.
(d) Whenever the provisions of the Master Lease require the
written consent of Sumitomo thereunder, those provisions shall be construed
to require the written consent of both Sublandlord and Sumitomo. Subtenant
represents that it has read and is familiar with the terms of the Master
Lease and understands its obligations thereunder.
(e) If the Property or any part thereof shall be taken by right
of eminent domain or by condemnation or conveyed in lieu of any such
taking, Sublandlord shall be entitled to any and all awards, damages and
settlements that may be given with respect to the Property (subject to any
rights of Sumitomo under the Master Lease) and Subtenant and Xxxx hereby
assign to Sublandlord any and all right, title and interest in any such
awards, damages and settlements with respect to the Property and neither
Subtenant nor Xxxx shall have any claim against Sublandlord for the value
of any unexpired term of this Sublease or the purchase option; provided,
however, Sublandlord shall have no interest in any award made to Subtenant
for the interruption of Subtenant's business or for the taking of any of
Subtenant's fixtures or other personal property if a separate award for
such items is made to Subtenant. Notwithstanding any casualty or
condemnation affecting the Property or other portions of the Property, the
Term shall continue in effect, unless the Master Lease is terminated and
Subtenant shall not be entitled to an abatement of rent or any other remedy
unless Sublandlord is entitled to such abatement or other remedy under the
terms of the Master Lease and then only to the extent of such abatement or
remedy that Sublandlord is entitled to under the Master Lease.
(f) In the event that a default occurs in respect to
Sublandlord's obligations under the Master Lease which is not also a
default by Subtenant under this Sublease, Sublandlord shall immediately
provide to Subtenant a copy of any notice of such default received by
Sublandlord from Sumitomo and Sublandlord agrees that Subtenant may cure
the default within the same cure period, if any, as may be provided to
Sublandlord by Sumitomo.
(g) In the event that a default occurs in respect of
Sublandlord's obligations under the Master Lease which is not also a
default by Subtenant under this Sublease, and Subtenant is entitled to and
effects a cure of such default, Subtenant shall have a right to offset
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against rent and other amounts due under this Sublease any amounts paid by
Subtenant to cure Sublandlord's default if, but only if, such default
relates directly to the Property.
6. PREPARATION AND ACCEPTANCE OF THE PROPERTY.
(a) Any tenant improvements or alterations to the Property
required by Subtenant prior to its occupancy thereof shall be at
Subtenant's sole cost and expense and shall be subject to the requirements
contained in Paragraph 11 below. Subject to Section 6(b) below, taking
possession of the Property by Subtenant shall be conclusive evidence as
against Subtenant and Xxxx that Subtenant and Xxxx accept the Property "AS
IS" at that time and that the Property is in good and satisfactory
condition. Except as set forth in Section 6(b) below, Sublandlord shall
have no obligation whatsoever to remodel, renovate or alter the Property or
to pay for any remodeling, renovation or alterations. Sublandlord has not
made and hereby disclaims any representation or warranty whatsoever
concerning the condition of the Property and compliance or lack of
compliance by the Property with applicable building, health, fire safety
and other governmental codes and requirements including, without
limitation, those relating to accessibility and specifically including the
Americans with Disabilities Act and all regulations and guidelines
promulgated thereunder (collectively, the "ADA"). Without in any way
limiting the obligations of the Subtenant under the provisions of the
Master Lease incorporated herein, Subtenant shall be responsible for
compliance of the Property with applicable governmental codes and
requirements, including the ADA, solely at Subtenant's expense, subject
only to Xxxx'x rights under Section 29(d) below and the provisions of
Section 6(b) below.
(b) In the event that (i) the Property does not comply with the
Americans With Disabilities Act (the "ADA"), (ii) Subtenant provides
Sublandlord evidence acceptable to Sublandlord that the Property does not
so comply on or before July 1, 1998, and (iii) Subtenant provides
Sublandlord evidence acceptable to Sublandlord of the cost to cause the
Property to comply with the ADA, Sublandlord will pay 50% of the actual
cost to cause the Property to comply with the ADA up to an amount not to
exceed payment of $50,000 by Sublandlord, which amounts shall be paid as
and when incurred by Subtenant upon Subtenant providing Sublandlord
evidence reasonably acceptable to Sublandlord of the amount of expenses
actually incurred by Subtenant and evidence that Subtenant has or will pay
its 50% share of such expenses; provided that all work done to cause the
Property to comply with ADA shall be subject to and must be done in
accordance with the terms and conditions of this Sublease and the Master
Lease.
7. SERVICES. Notwithstanding any other provision of this Sublease
to the contrary, the only services, utilities or rights to which Subtenant
is entitled hereunder are those to which Sublandlord is entitled, if any,
under the Master Lease. Otherwise, if not the obligation of Sumitomo under
the Master Lease, Subtenant shall, to the extent it desires utility
services or other services to the Property, make its own arrangements in
its own name, for such services to the Property, and Subtenant shall pay
all costs of obtaining such services, including without limitation, any and
all deposits, service initiation or transfer charges, line extension costs
and other such fees and costs. Subtenant shall pay, when due, directly to
the service provider, all charges for gas, electricity, steam, water,
telephone, snow removal and other utilities or services furnished to the
Property during the Term.
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8. TAXES. Subtenant shall pay when due, all real estate taxes
(whether special or general, ordinary or extraordinary), special
improvement and other assessments (ordinary and extraordinary), water rents
and charges, and all other taxes, duties, charges, fees and payments that
are imposed, assessed or levied by any governmental or public authority
with respect to the Property, or that arise in connection with the use,
occupancy or possession of the Property or any part thereof during the Term
(collectively, the "GOVERNMENTAL IMPOSITIONS"). In each case, Subtenant
shall pay all such Governmental Impositions directly to the taxing
authority and deliver to Sublandlord and Sumitomo copies of the receipted
bills or other evidence satisfactory to Sublandlord and Sumitomo showing
such payment promptly after Subtenant receives receipts showing the payment
thereof. In addition, Subtenant shall perform all obligations with respect
to taxes and other Governmental Impositions set forth in the Master Lease.
9. PERMITS. Subtenant shall, at Subtenant's sole cost and expense,
procure every permit, license, certificate or other authorization required
in connection with the use of the Property by Subtenant or required in
connection with any building or improvements now or hereafter erected on
the Property.
10. INSURANCE/USE OF INSURANCE AND CONDEMNATION PROCEEDS.
(a) At all times during the term of this Sublease, Subtenant
shall carry and maintain, at Subtenant's expense, insurance in the amounts
and with the coverages required under the Master Lease from time to time.
All policies of insurance required hereunder shall name Sublandlord and
Sumitomo as additional insureds, and executed copies of such policies or
certificates thereof shall be delivered to Sublandlord and Sumitomo in
accordance with the provisions of the Master Lease.
(b) Use of insurance and condemnation proceeds is governed by
and subject to the terms of the Master Lease. In the event that
Sublandlord is entitled to the use of either insurance proceeds or
condemnation proceeds to rebuild or restore the Property pursuant to the
terms of the Master Lease, Sublandlord shall make such proceeds available
to Subtenant subject to and in accordance with all of the terms and
conditions of the Master Lease and such other terms and conditions as
Sublandlord may reasonably require.
11. ALTERATIONS BY SUBTENANT. In connection with any proposed
alterations, renovations, improvements or additions to the Property,
Subtenant shall comply with the terms and conditions of Section 14.1 of the
Master Lease; except that any consent required thereto shall require the
consent of Sublandlord and Sumitomo (unless Sublandlord in its sole
discretion determines that the consent of Sumitomo is not required, in
which event only the consent of Sublandlord shall be required).
12. MAINTENANCE AND REPAIR. In connection with the maintenance and
repair of the Property, Subtenant shall comply with the terms and
conditions of Section 13.1 of the Master Lease.
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13. ASSIGNMENT AND SUBLETTING.
(a) Except as set forth in (b) below, neither Subtenant nor Xxxx
shall assign, convey, mortgage, hypothecate or encumber this Sublease or
any interest herein or sublet all or any part of the Property, or suffer or
permit the Property or any part thereof to be used by others (any and all
of which hereinafter shall be referred to as a "transfer"), without the
prior written consent of Sublandlord in each instance, which consent shall
not be unreasonably withheld or delayed. Any attempted transfer without
Sublandlord's prior written consent shall be void and shall confer no
rights upon any third person. If any transfer shall occur, with or without
Sublandlord's prior consent, Sublandlord may, after default by Subtenant,
collect rent from the assignee, sub-Subtenant or other transferee, and
apply the net amount collected to the Base Rent, but no such transfer or
collection shall be deemed a waiver of the provisions of this Paragraph 13,
or the acceptance of the assignee, sub-Subtenant or other transferee as the
Subtenant hereof, or a release of Subtenant from the further performance by
Subtenant of covenants on the part of Subtenant contained in this Sublease.
The consent by Sublandlord to a transfer shall not relieve Subtenant from
primary liability hereunder or from the obligation to obtain the express
consent in writing of Sublandlord to any further transfer.
(b) (i) Subtenant shall be entitled to lease the basement of
the Property consisting of approximately 14,000 square feet (the "BASEMENT
SPACE") to Xxxx without the consent of Sublandlord or Sumitomo and either
Subtenant or Xxxx shall be entitled to lease the Basement Space to any
other party (a "SUB-SUBTENANT") without the consent of Sublandlord or
Sumitomo; on the condition that any sublease entered into by Subtenant or
Xxxx shall expressly provide that it is subject and subordinate in all
respects to the Master Lease and this Sublease and that any such subtenancy
shall terminate and be of no further force and effect upon the termination
of the Master Lease or this Sublease.
(ii) Any base rent, operating expense reimbursements or
other payments received from any Sub-subtenant shall be paid by Subtenant
or Xxxx to Sublandlord immediately upon receipt of such amounts by
Subtenant or Xxxx (any such amounts paid to Sublandlord are hereinafter
referred to as "SUB-SUBTENANT PAYMENTS").
14. ACCESS. In addition to the rights set forth in the Master Lease,
Sublandlord and its agents and employees shall have the right, upon
reasonable notice to Subtenant (except in cases of emergency, in which
event no notice is required), to undertake the following: to enter the
Property at all times to examine it, to show the Property to interested
parties such as prospective mortgagees or to post notices provided for by
Section 38-22-105(2) of Colorado Revised Statutes (1973, as amended), and
for any other purpose that Sublandlord deems necessary or desirable for the
protection of Sublandlord, Sumitomo or the Property. If during the Term
Subtenant shall have removed all or substantially all of Subtenant's
property from the Property, Sublandlord may immediately enter and alter,
renovate and redecorate the Property without incurring liability to
Subtenant for any compensation or damages, and such acts shall not entitle
Subtenant to any elimination or abatement of Base Rent and shall not have
the effect of terminating this Sublease or making this Sublease void or
voidable. If Subtenant is not present to open the Property for any such
entry, Sublandlord may gain entry by use of a master key and in
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an emergency by any means (including breaking any doors or windows) without
rendering Sublandlord, its agents or employees liable therefor and without
in any manner affecting the obligations and covenants of this Sublease. In
exercising its rights under this Xxxxxxxxx 00, Xxxxxxxxxxx shall use
reasonable efforts to minimize any interference with Subtenant's use of the
Property.
15. SURRENDER; HOLDOVER.
(a) Pursuant to the provisions of this Sublease, Xxxx is
obligated to purchase the Property. In the event that Xxxx fails to
purchase the Property prior to the expiration of the Term or immediately
upon the earlier termination of the Term (which failure would constitute a
breach and default hereunder), Subtenant shall surrender possession of the
Property to Sublandlord and shall deliver the Property in as good a
condition as it was at the commencement of the Term, or as subsequently
improved by alterations and repairs, reasonable wear and tear excepted, and
all mechanical, electrical and plumbing systems for which Subtenant is
responsible shall be in good working order. Subtenant further agrees that
the Property shall be free of any hazardous or toxic materials, substances
or waste (as such term may be defined or used in any law, statute,
ordinance, code, rule or regulation) deposited or introduced in, on, under,
over, from or around the Property during the Term. Subtenant shall
indemnify, defend and hold harmless Sublandlord and Sumitomo from and
against any and all liabilities, claims, demands, losses, damages, costs,
expenses (including attorneys' fees), judgments, proceedings and causes of
action of any kind whatsoever in any way arising out of or connected with
hazardous or toxic materials, substances or waste deposited or introduced
in, on, under, over, from or around the Property during the Term.
Subtenant's indemnification obligation set forth in this Paragraph 15 shall
survive the expiration or earlier termination of the Term.
(b) Pursuant to the provisions of this Sublease, Xxxx is
obligated to purchase the Property. In the event that Xxxx fails to
purchase the Property prior to the termination of the Term or immediately
upon the earlier termination of the Term (which failure would constitute a
breach and default hereunder) and if Subtenant or anyone claiming under
Subtenant holds over in the Property after the end of the Term without the
express written consent of Sublandlord, Subtenant shall be deemed to be
illegally retaining possession and shall pay Sublandlord monthly during the
entire holdover period, as liquidated damages for loss of use of the
Property, an amount equal to 125% of the Base Rent payable immediately
prior to the end of the Term. In the event of any unauthorized holding
over, Subtenant shall indemnify Sublandlord against all claims for damages
by any person to whom Sublandlord may have leased all or any part of the
Property effective after the termination of this Sublease. No such holding
over and no acceptance by Sublandlord of payments of liquidated damages as
provided in this Paragraph 15 shall be construed to extend this Sublease or
to constitute Subtenant a Subtenant of the Property on any basis whatsoever
or constitute a waiver by Sublandlord of Subtenant's obligation to purchase
the Property in accordance with the terms of this Sublease or the Master
Lease.
16. DEFAULTS. The occurrence or existence of any one or more of the
following events constitutes a default under this Sublease ("EVENTS OF
DEFAULT"):
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(a) MASTER LEASE. Any "Event of Default" under the Master Lease
relating to those provisions of the Master Lease incorporated into this
Sublease pursuant to Paragraph 5 above; or
(b) NONPAYMENT. Subtenant fails to pay any Base Rent or other
sum payable hereunder by Subtenant to Sublandlord when the same becomes due
and payable; or
(c) NONPERFORMANCE. Subtenant fails to perform or comply with
any other term, covenant, condition, obligation, requirement or provision
hereof (including the terms of the Master Lease incorporated herein) and
such failure continues for more than 15 days after Sublandlord gives
written notice thereof to Subtenant, unless a shorter cure period or no
cure period is specified in this Sublease or the Master Lease in which
event Subtenant shall have only such cure period as is specified in this
Sublease or the Master Lease; or
(d) IMPERMISSIBLE TRANSFER. Subtenant enters into any lease,
sublease, assignment or other Transfer of its interest in this Sublease or
the Property, or any part thereof, except as expressly permitted by and in
accordance with Paragraph 13 above; or
(e) ATTACHMENT. Any execution or attachment is issued whereby
any of the Property will be taken or is attempted to be taken by someone
claiming through or under the Subtenant, if the same is not vacated or
discharged within ten days after the issuance thereof; or
(f) INSOLVENCY AND BANKRUPTCY. Subtenant or Xxxx becomes unable
to pay its or his debts as they become due, or makes a general assignment
for the benefit of creditors, or is adjudicated bankrupt or insolvent, or
is the subject of any voluntary or involuntary petition in that regard, or
files any petition or answer seeking, consenting to, or acquiescing in
reorganization, arrangement, adjustment, composition, liquidation,
dissolution or similar relief, under any present or future statute, law or
regulation or files an answer admitting or failing to deny the material
allegations of a petition against it or him for any such relief; or
(g) PROCEEDINGS NOT DISMISSED. Proceedings against Subtenant or
Xxxx of the type referred to in Paragraph 16(f) above or seeking any such
relief are not dismissed within sixty days after commencement; or
(h) APPOINTMENT OF RECEIVER. Any trustee, receiver or
liquidator is appointed with respect to Subtenant or any substantial part
of its properties or assets or with respect to the Property, provided that
if such an appointment is made without the application, consent or
acquiescence of Subtenant, the appointment constitutes a default only if it
remains unvacated or unstayed for an aggregate of 60 days (regardless of
whether consecutive).
(i) NON-PERFORMANCE BY XXXX. Xxxx fails to perform or comply
with any of the terms, covenants, conditions, obligations or requirements
of Section 29 below.
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(j) CONTROL OF SUBTENANT. Xxxx shall at any time cease (i) to
own at least 40% of the issued and outstanding common stock of Subtenant or
(ii) to have the ability to control the decisions and operations of
Subtenant.
17. REMEDIES.
(a) REMEDIES. Upon the occurrence or existence of an Event of
Default, Sublandlord may at any time thereafter, in addition to the
exercise of all available remedies at law and in equity (and none of the
following, whether or not exercised by Sublandlord, shall preclude the
exercise of any other right or remedy whether herein set forth or existing
at law or equity):
(i) Require Xxxx to purchase the Property for an amount
equal to the Purchase Price (as defined in Section 29(a) below) plus all
Base Rent and other amounts then owing under this Sublease (the "PUT
OPTION"), the closing which purchase shall occur on the date designated by
Sublandlord in a written notice to Xxxx. In the event that Xxxx fails to
purchase the Property following Sublandlord's exercise of the Put Option,
Sublandlord's rights and remedies against Xxxx shall be governed by Section
29(b) below.
(ii) Exercise any of Sumitomo's remedies under the Master
Lease.
(iii) Give a written termination notice to Subtenant,
and upon the date specified in such notice (subject to the provisions of
this Paragraph 17 relating to the survival of Subtenant's obligations), the
Term of this Sublease shall expire and terminate, and all rights of
Subtenant under this Sublease shall cease without the necessity of reentry
or any other act on Sublandlord's part. Sublandlord shall have the right
to terminate this Sublease by giving Subtenant such written notice at any
time. No act by or on behalf of Sublandlord, such as entry of the Property
by Sublandlord to perform maintenance and repairs and efforts to relet the
Property, other than giving Subtenant written notice of termination, shall
terminate this Sublease. Upon any termination of this Sublease, Subtenant
shall quit and surrender to Sublandlord the Property as set forth in
Paragraph 15 above. If this Sublease is terminated, Subtenant shall be and
remain liable to Sublandlord for damages as hereinafter provided and
Sublandlord shall be entitled to recover forthwith from Subtenant as
damages an amount equal to the total of (1) all Base Rent and other sums
accrued and unpaid at the time of termination of the Lease, plus interest
thereon at the Interest Rate (as defined in Paragraph 24 below), and (2)
the amount of Base Rent and all other sums that would have been payable
hereunder if this Sublease had not been terminated, less the net proceeds,
if any, of any reletting of the Property, after deducting all Sublandlord's
expenses in connection with such reletting, including, but without
limitation, all repossession costs, brokerage commissions, Subtenant
inducements, legal expenses, reasonable attorneys' fees, alteration,
remodeling and repair costs, expenses of employees, and expenses of
preparation for such reletting, which damages Subtenant shall pay to
Sublandlord on the days on which the Base Rent would have been payable if
this Sublease had not terminated, or, alternatively, at Sublandlord's
option, an amount equal to the present value (discounted at the rate of 5%
per annum) of the balance of the Base Rent and other sums payable for the
remainder of the stated term of this Sublease after the termination date
less the present value (discounted at the
-10-
same rate) of the reasonable rental value of the Property for such period,
plus all of Sublandlord's expenses incurred in repossessing the Property
and reletting (or attempting to relet) the Property, including, but without
limitation, the expenses enumerated above, and all other amounts necessary
to compensate Sublandlord fully for all damage caused by Subtenant's
default.
(iv) Without demand or notice, enter upon and repossess the
Property or any part thereof, and repossess the same as of Sublandlord's
former estate and expel Subtenant and those claiming through or under
Subtenant, and remove the effects of any and all such persons, by force,
summary proceedings, ejectment or otherwise, without being deemed guilty of
any manner of trespass and without prejudice to Sublandlord's rights to
recover Base Rent and damages. Sublandlord shall be under no liability for
or by reason of any such entry, repossession or removal. If Sublandlord
elects to reenter as provided in this Paragraph 17(a)(iv), or if
Sublandlord takes possession pursuant to legal proceedings or pursuant to
any notice provided for by law, Sublandlord may, from time to time, without
terminating this Sublease, relet the Property or any part thereof as
provided in Paragraph 17(a)(v) below. No such reentry, repossession or
reletting of the Property by Sublandlord shall be construed as an election
on Sublandlord's part to terminate this Sublease unless a written notice of
termination is given to Subtenant by Sublandlord. No such reentry,
repossession or reletting of the Property shall relieve Subtenant of its
liability and obligation under this Sublease, all of which shall survive
such reentry, repossession or reletting. Upon the occurrence of such
reentry or repossession, Sublandlord shall be entitled to the amount of the
monthly Base Rent, and all other sums, which would be payable hereunder if
such reentry or repossession had not occurred, less the net proceeds, if
any, of any reletting of the Property after deducting all of Sublandlord's
expenses in connection with such reletting, including, but without
limitation, the expenses enumerated in Paragraph 17(a)(iii) above.
Subtenant shall pay such amounts to Sublandlord on the days on which the
Base Rent would have been payable hereunder if possession had not been
retaken. If this Sublease is terminated as a result of Sublandlord's
actions in retaking possession of the Property or otherwise, Sublandlord
shall be entitled to recover damages from Subtenant as provided in
Paragraph 17(a)(ii) above.
(v) At any time or from time to time after the repossession
of the Property or any part thereof pursuant to Paragraph 17(a)(iv) above,
regardless of whether the Term of this Sublease has terminated pursuant to
Paragraph 17(a)(iii) above, relet the Property or any part thereof for the
account of Subtenant, in the name of Subtenant or Sublandlord or otherwise,
without notice to Subtenant, for such term or terms (which may be greater
or less than the period which would otherwise have constituted the balance
of the Term of this Sublease) and on such conditions (which may include
concessions or free rent) and for such uses as Sublandlord, in its
uncontrolled discretion, may determine, with the right to make alterations
and repairs to the Property, and may collect and receive the rents
therefor. Notwithstanding Sublandlord's ability to relet the Property,
Sublandlord has no obligation in that regard, and Subtenant expressly
disclaims any rights or claims that it may have to require such reletting
by Sublandlord as mitigation. In no event shall Subtenant be entitled to
receive the excess, if any, of net rent collected by Sublandlord as a
result of such reletting over the sums payable by Subtenant to Sublandlord
hereunder.
-11-
(b) TERMINATION DOES NOT RELIEVE SUBTENANT OR XXXX OF
OBLIGATIONS. No expiration or termination of the Term of this Sublease
pursuant to Paragraph 17(a)(iii) above or by operation of law or otherwise
(except as expressly provided herein), and no repossession of the Property
or any part thereof pursuant to Paragraph 17(a)(iv) above or otherwise,
shall relieve Subtenant or Xxxx of their liabilities and obligations
hereunder (including, without limitation, Xxxx'x obligation to purchase the
Property), all of which shall survive such expiration, termination or
repossession.
(c) NO LIMITATION AS TO PROOF OF LIQUIDATED DAMAGES. No
provision of this Sublease limits or prejudices the right of Sublandlord to
prove and obtain as liquidated damages by reason of any termination of this
Sublease an amount equal to the maximum allowed by any statute or rule of
law in effect at the time when, and governing the proceedings in which,
such damages are to be proved, whether such amount is greater, equal to or
lesser than the amount referred to above. Sublandlord has the right to
recover from Subtenant the damages and other sums provided for above by
suit or suits brought from time to time without Sublandlord being required
to wait until the expiration of the Term of this Sublease, or if this
Sublease is terminated, the date on which such expiration would have
occurred.
(d) MULTIPLE REMEDIES. Upon the occurrence of an Event of
Default hereunder, Sublandlord shall be entitled to exercise all rights and
remedies provided for pursuant to this Section 17 and to obtain all damages
to which Sublandlord may be entitled pursuant to this Section 17 in
addition to liquidated damages against Xxxx pursuant to Section 29(b)
below.
(e) RIGHT TO RECEIVERSHIP. In addition to all other remedies of
Sublandlord set forth in this Sublease and available at law or in equity,
upon the occurrence or existence of an Event of Default that is not cured
within the time periods specified therefor, Sublandlord shall be entitled
to a receiver for the Property (including all improvements, fixtures and
equipment and appurtenances thereto) and of the rents, issues and profits
thereof as a matter of right, and such receiver may be appointed by any
court of competent jurisdiction upon EX PARTE application and without
notice, notice being hereby expressly waived. All rents, issues and
profits, income and revenues from the Property shall be applied by such
receiver to the payment of Base Rent and other sums due under this
Sublease, together with Governmental Impositions and insurance premiums and
expenses of receivership. Upon the curing of all Subtenant's defaults,
possession of the Property shall be returned to Subtenant and the
receivership terminated.
(f) NON-WAIVER. Sublandlord's exercise of or failure to
exercise any right or remedy available to it does not constitute a waiver
thereof or of the default by Subtenant. Sublandlord's exercise of any
right or remedy does not preclude its exercise of any other right or remedy
available to it under this Sublease, at law or in equity. Sublandlord's
acceptance of payments of Base Rent at a time when Sublandlord has
knowledge of any default or Event of Default does not constitute a waiver
of such default or Event of Default or of any right or remedy of
Sublandlord.
(g) FEES AND EXPENSES. In addition to all other rights of the
Sublandlord herein or incorporated herein by reference from the Master
Lease, in the event of any breach by
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Subtenant or Xxxx of any of the terms or provisions of this Sublease or
failure of the Subtenant or Xxxx to perform any of Subtenant's or Xxxx'x
obligations hereunder or under the Master Lease, in addition to all other
rights and remedies of Sublandlord, Sublandlord shall be entitled to
collect all fees and expenses incurred by Sublandlord in connection with
such breach or default or any action taken by Sublandlord in connection
therewith, including without limitation, attorneys' fees and expenses.
18. ENVIRONMENTAL MATTERS.
(a) In addition to complying with all of the terms and
conditions of the Master Lease, Subtenant shall and shall cause its agents,
employees, contractors and invitees to use the Property and conduct any
operations thereon in compliance with all federal, state and local
environmental laws, rules, regulations, ordinances, judicial or
administrative decrees, orders, decisions, authorizations or permits
pertaining to the protection of human health and/or the environment
("ENVIRONMENTAL LAWS"), including, but not limited to, the Resource
Conservation and Recovery Act, 42 U.S.C. ss.6901, et seq. ("RCRA"), the
Clean Air Act, 42 U.S.C. ss.7401, et seq.("CAA"), the Federal Water
Pollution Control Act, 33 U.S.C. ss.1251, et seq.("FWPCA"), the Emergency
Planning and Community Right to Know Act, 42 U.S.C. ss.11001, et seq., the
Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. ss. 9601, et seq.("CERCLA"), the Toxic Substances Control Act, 15
U.S.C. ss.2601, et seq., the Oil Pollution Act of 1990, 33 U.S.C. ss.2701,
et seq., and any other local, state (including, without limitation,
Colorado) or federal statute or ordinance pertaining to the environment or
natural resources and all regulations pertaining thereto and any permits,
approvals or judicial or administrative orders issued thereunder. For
purposes of this Sublease, "HAZARDOUS SUBSTANCES" shall mean any and all
hazardous or toxic substances, hazardous constituents, contaminants,
wastes, pollutants or petroleum (including, without limitation, crude oil
or any fraction thereof), including, without limitation, hazardous or toxic
substances, pollutants and/or contaminants as such terms are defined in any
of the Environmental Laws; asbestos or material containing asbestos; and
PCBs, PCB articles, PCB containers, PCB article containers, PCB equipment,
PCB transformers or PCB-contaminated electrical equipment (as such terms
are defined in Part 761 of Title 40, Code of Federal Regulations).
Subtenant covenants that:
(i) No Hazardous Substances shall be generated, treated,
stored or disposed of, or otherwise deposited in or located on the
Property;
(ii) No activity shall be undertaken on the Property which
would cause:
(1) The Property to become a hazardous waste
treatment, storage or disposal facility within the meaning of, or otherwise
cause the Property to be in violation of RCRA or any similar state law or
local ordinance;
(2) A release or threatened release from any source on
the Property of Hazardous Substances from the Property within the meaning
of, or otherwise cause
-13-
the Property to be in violation of, CERCLA or any similar state law or
local ordinance or any other environmental law;
(3) The discharge of pollutants or effluents into any
water source or system, or the discharge into the air of any emissions,
which would require a permit under FWPCA or CAA or any similar state law or
local ordinance;
(iii) There shall be no substances or conditions in or
on the Property which may support a claim or cause of action under RCRA,
CERCLA, any other Environmental Laws or under any common law claim relating
to environmental matters, or could result in recovery by any governmental
or private party of remedial or removal costs, natural resources damages,
property damages, damages in personal injuries or other costs, expenses or
damages, or could result in injunctive relief arising from any alleged
injury or threat of injury to health, safety or the environment; and
(iv) There shall be no underground storage tanks or release
or threatened releases from such tanks located on the Property.
(b) If it is discovered that any Hazardous Substances have been
deposited, released, discharged or otherwise caused to exist, on or from
the Property, in violation of the provisions of this Paragraph 18, then
Subtenant agrees promptly to remove, clean up or take such other remedial
action with regard to such substances as may be required by applicable law
or regulations. Any such remedial action shall be the sole responsibility
of Subtenant and shall be conducted solely at Subtenant's expense. If
Subtenant fails to commence or diligently pursue such remedial action in
Sublandlord's sole judgment, then, after written notice to Subtenant,
Sublandlord may declare an event of default under this Sublease and
exercise any and all remedies hereunder, and/or cause the taking of such
remedial action as may be required solely at Subtenant's expense.
Subtenant grants to Sublandlord, its agents and employees access to the
Property and the license to carry out such remedial action.
(c) Subtenant shall give Sublandlord prompt notice of any of the
following occurrences arising with regard to the Property or Subtenant's
activities thereon:
(i) Any spill, release, threatened release or other
occurrence that would constitute a violation of the provisions of Paragraph
18(a) above;
(ii) The notification of any of the events set forth in
Paragraph 18(c)(i) above to any federal, state or local governmental agency
or authority;
(iii) Any notices, claims or allegations of
environmental violations or contamination received from any federal, state
or local governmental agency or authority or the filing or commencement of
any judicial or administrative proceeding by any such agency; or
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(iv) The filing or threatened filing (in writing) of any
judicial or administrative proceeding by any private party alleging injury
or threat of injury to property, health, safety or the environment relating
in any way to any environmental matter.
(d) Subtenant hereby agrees to indemnify, defend and hold
harmless Sublandlord and Sublandlord's agents, employees, officers,
directors, shareholders, members, and contractors (all of such entities and
persons being referred to herein individually as an "INDEMNIFIED PERSON"
and collectively as the "INDEMNIFIED PARTIES") from and against any and all
liabilities, claims, demands, actions and causes of action whatsoever
(including, without limitation, attorneys' fees and expenses, and costs and
expenses reasonably incurred in investigating, preparing or defending
against any litigation or claim, action, suit, proceeding or demand of any
kind or character) to which any Indemnified Person may be subject arising
out of or relating to any alleged contamination of the Property arising
from any violation of Subtenant's obligations under this Paragraph 18.
Those costs, damages, liabilities, losses, claims, expenses (including,
without limitation, attorneys' fees and disbursements) for which the
Indemnified Parties are indemnified hereunder shall be reimbursable as
incurred without any requirement of waiting for the ultimate outcome of any
litigation, claim or other proceeding, and Subtenant shall pay such costs,
damages, liabilities, losses, claims and expenses (including, without
limitation, attorneys' fees and disbursements) as incurred by Sublandlord
or other Indemnified Persons within 15 days after notice itemizing the
amounts incurred to the date of such notice.
(e) Sublandlord hereby agrees to indemnify, defend and hold
harmless Subtenant and Subtenant's agents, employees, officers, directors,
shareholders, members, and contractors (all of such entities and persons
being referred to herein individually as an "INDEMNIFIED PERSON" and
collectively as the "INDEMNIFIED PARTIES") from and against any and all
liabilities, claims, demands, actions and causes of action whatsoever
(including, without limitation, attorneys' fees and expenses, and costs and
expenses reasonably incurred in investigating, preparing or defending
against any litigation or claim, action, suit, proceeding or demand of any
kind or character) to which any Indemnified Person may be subject arising
out of or relating to any alleged contamination of the Property as a result
of any action by Sublandlord. Those costs, damages, disbursements for
which the Indemnified Parties are indemnified hereunder shall be
reimbursable as incurred without any requirement of waiting for the
ultimate outcome of any litigation, claim or other proceeding, and
Subtenant shall pay such costs, damages, liabilities, losses, claims and
expenses (including, without limitation, attorneys' fees and disbursements)
as incurred by Sublandlord or other Indemnified Persons within 15 days
after notice itemizing the amounts incurred to the date of such notice.
(f) The obligations of Subtenant set forth in this Paragraph 18
shall survive the expiration or earlier termination of this Sublease or the
exercise by Sublandlord of any of its remedies hereunder.
19. Intentionally Deleted.
20. PUBLIC DEDICATION; ADVERSE POSSESSION. Subtenant shall not, and
nothing in this Sublease may be construed to give Subtenant the authority
to, dedicate any
-15-
portion of the Property to public use, Subtenant shall take any and all
necessary and appropriate actions (including without limitation periodic
and temporary closures of any access roadway) to ensure that no portion of
the Property is inadvertently dedicated to any public authority or to
public use. Subtenant shall take all necessary and appropriate actions to
ensure that no portion of the Property becomes subject to a claim for
adverse possession, prescriptive easement rights or other similar claims.
21. INDEMNITY; WAIVER.
(a) In addition to indemnifying Sublandlord in connection with
each of the indemnification provisions of the Master Lease incorporated
into this Sublease (including, without limitation, Article XXVI of the
Master Lease) pursuant to Paragraph 5 above, Subtenant shall indemnify,
defend and hold harmless Sublandlord and Sublandlord's agents, employees,
officers, directors, shareholders, members, and contractors from and
against any and all liabilities, losses, causes of action, suits, claims,
demands, judgments, damages, penalties, costs, expenses (including without
limitation, reasonable attorneys' fees and costs), claims, suits or actions
due to or in any way arising out of or resulting from or related to (a) any
breach, violation or nonperformance of any obligation of Subtenant or Xxxx
under this Sublease, (b) Subtenant's use or occupancy of the Property or
the condition of the Property, (c) any act, thing or work done or omitted
to be done in, on or about the Property or adjacent property by Subtenant
or any of the agents, contractors, servants, employees, licensees, visitors
or guests of Subtenant, (d) any contest of Governmental Impositions or
Requirements of Law (as defined in the Master Lease) by Subtenant
authorized by this Sublease, and (e) any damage to property or any injury
to persons (including death resulting at any time therefrom) in, on, under
or about the Property from any cause. If any action is brought against
Sublandlord by reason of any such claim, Subtenant, upon notice from
Sublandlord, agrees to defend any such action or proceeding at Subtenant's
expense by counsel reasonably satisfactory to Sublandlord. Subtenant and
Xxxx waive all claims against Sublandlord for damage or injury to person or
property arising, or asserted to have arisen, from any cause whatsoever,
including without limitation, any negligence or alleged negligence of
Sublandlord or its agents, employees, directors, officers, shareholders,
members, or contractors (other than gross negligence or willful misconduct
of Sublandlord). Subtenant's and Xxxx'x obligations under this Paragraph
21 shall survive the expiration or earlier termination of this Sublease.
(b) Subject to the provisions of Section 27 below and the
limitation that damages resulting from the termination of this Sublease may
not exceed $100,000 in the aggregate (plus $25,000 in actual Subtenant
damages) set forth in Section 5(c) above, Sublandlord hereby indemnifies
and holds Subtenant, Subtenant's nominees, officers, directors, agents,
employees, successors and assigns harmless from and against any and all
claims, demands, liabilities, and expenses, including attorneys' fees and
litigation expenses, caused by (i) the gross negligence or willful
misconduct of Sublandlord or (ii) a breach of this Agreement by
Sublandlord. In the event any action or proceeding shall be brought
against Subtenant by reason of any such claim, Sublandlord shall defend the
same at Sublandlord's expense by counsel selected by Sublandlord and
reasonably acceptable to Subtenant.
-16-
22. SUBTENANT ESTOPPEL CERTIFICATE. Subtenant agrees at any time and
from time to time, (a) to execute, acknowledge and deliver to Sublandlord
and Sumitomo any and all estoppel certificates required under the Master
Lease, and (b) within 10 days after request by Sublandlord or by the holder
of any mortgage or deed of trust on Sublandlord's interest in the Property,
to execute, acknowledge and deliver to Sublandlord or the holder of such
instrument, a statement in writing certifying that this Sublease is
unmodified and in full force and effect (or if there have been
modifications, that the same is in full force and effect as modified and
stating the modifications); that to the best of Subtenant's knowledge there
are no defaults hereunder by Sublandlord, if such is the fact, and
otherwise specifying such defaults in detail; that there are no defenses or
offsets to the Lease by Subtenant, or stating such defenses or offsets as
are claimed by Subtenant; the dates to which Base Rent and other charges
have been paid, and such other information concerning this Sublease, the
Property and Subtenant as may be reasonably requested. Subtenant's failure
to deliver such certificate within such time shall be a material default of
Subtenant and shall be conclusive upon Subtenant that this Sublease is in
full force and effect without modification except as may be represented by
Sublandlord, that there are no uncured defaults in Sublandlord's
performance and that no more than one month's Base Rent has been paid in
advance. Any statement delivered pursuant to this Paragraph 22 may be
relied upon by the holder of any such mortgage, deed of trust or other
instrument of security or any prospective purchaser of Sublandlord's
interest in the Property.
23. NO ABATEMENT. Except as otherwise provided herein or in the
Master Lease, in no event whatsoever will there be any abatement or
reduction of any Base Rent or other sums payable by Subtenant for any
reason, including without limitation, diminution of the amount of usable
space caused by legally required changes in the construction, operation or
use of the Property or due to the construction of improvements on the
Property or the public dedication of any portion of the Property.
24. INTEREST UPON ARREARS OR UPON DEFAULT. Every installment of Base
Rent accruing under this Sublease and all other sums becoming due or
payable to Sublandlord under this Sublease or on account of any default by
Subtenant in performance or observance of any of the covenants of this
Sublease, will, if it is not paid when due, bear interest from the due date
until the same is paid at the rate of 12% per annum, or if such rate
exceeds the maximum rate of interest that may be legally charged, such
maximum rate (the "INTEREST RATE"). All sums advanced or paid by
Sublandlord under the provisions of this Sublease are due and payable with
the installment of Base Rent next becoming due after the date of such
advance or payment.
25. SURVIVAL OF OBLIGATIONS. Subtenant's obligations to pay Base
Rent reserved herein and to pay all other sums payable hereunder
attributable to the Term of this Sublease and Xxxx'x obligation to purchase
the Property shall survive the expiration or earlier termination of this
Sublease.
26. NOTICE AND BILLS. Any xxxx, statement, notice, demand or other
communication which either party may desire or be required to give shall be
in writing and shall be given by personally delivering a copy thereof to
the person specified below at the following
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address or by sending a copy thereof by certified or registered United
States mail, postage prepaid, addressed as follows:
If to Subtenant:
---------------
GLOBAL WATER TECHNOLOGIES, INC.
00000 Xxxx Xxxxxx Xxxxxx, Xxxxx X000
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx
If to Xxxx:
----------
Xxxxxx X. Xxxx
00000 Xxxx Xxxxxx Xxxxxx, Xxxxx X000
Xxxxxxxx, XX 00000
If to Sublandlord:
-----------------
THE XXXXXXX COMPANY, INC.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Any communication given as herein provided shall be deemed given when
personally delivered or when mailed. Each party shall have the right to
designate a different address or a different person, or both, to which or
to whom communications shall be sent or delivered, by written notice given
as provided herein.
Subtenant shall deliver copies of all bills, statements, notices,
demands or other communications required to be given by Lessee under the
Master Lease to both Sublandlord and Sumitomo (such communications to
Sumitomo to be in accordance with the provisions of the Master Lease).
27. LIMITATION OF LIABILITY. Notwithstanding anything to the
contrary expressly or impliedly contained in this Sublease, there shall be
absolutely no personal liability of Sublandlord or any person, firm,
partnership, association, or other entity who or which constitutes
Sublandlord, or of any shareholder, directors, officers, partner, member,
or employee of Sublandlord, under or with respect to any of the terms,
covenants, conditions or provisions of this Sublease, or of any violation
hereof (except for (1) the actual damages in an amount not to exceed
$100,000 plus $25,000 referred to in Paragraph 5(c) above, or (2) any
breach of Sublandlord's obligation in Section 29(a)(i) below to pay any
amount by which the amount owing to Sumitomo in connection with the
exercise of the Purchase Option exceeds the Purchase Price, and Subtenant
and Xxxx shall look solely to the interest of Sublandlord in the Master
Lease for the satisfaction of each and every claim and remedy of Subtenant
or Xxxx in the event of any default or violation whatever by Sublandlord
hereunder; such exculpation of personal liability is absolute and without
any exception or modification whatever, now or hereafter.
-18-
28. CONSENT OF SUMITOMO. This Sublease shall not be effective unless
and until the written consent of Sumitomo, substantially in the form and
substance of EXHIBIT "B" attached hereto and incorporated herein by this
reference, has been executed by Sumitomo and delivered to Sublandlord.
29. PURCHASE OPTION; PURCHASE OBLIGATION.
(a) (i) Subject to the provisions of Section 29(c) and 29(d)
below, Xxxx shall have the right during the Term to cause Sublandlord to
exercise the Purchase Option (as defined in the Master Lease) set forth in
Section 22.1 of the Master Lease. The purchase price payable by Xxxx in
connection with Xxxx'x purchase of the Property under this Paragraph 29
shall be an amount equal to (A) $5,800,000 plus (B) $460.20 per day from
May 1, 1998 to the date of the closing of the purchase (which amounts
represent rent for the Basement Space which is being abated and added to
the Purchase Price), minus (C) any Sub-subtenant Payments paid to
Sublandlord pursuant to Section 13(b)(ii) above, subject to customary
prorations at closing (such amount is referred to herein as the "PURCHASE
PRICE") notwithstanding the amount of the Purchase Option Price (as defined
in the Master Lease) which Sublandlord would owe to Sumitomo under Section
22.1 of the Master Lease in connection with such exercise of the Purchase
Option. Sublandlord represents, warrants and covenants to Xxxx that, as of
the date of this Sublease, the Purchase Option Price would be $5,800,000
and that Sublandlord shall pay any amount by which the amount owing to
Sumitomo in connection with such exercise of the Purchase Option exceeds
the Purchase Price. In order to cause Sublandlord to exercise such right,
Xxxx shall deliver written notice (the "OPTION NOTICE") to Sublandlord
(acknowledged by Subtenant) not more than 180 days and not less than 120
days prior to the closing date of such purchase under the Master Lease.
Xxxx shall not be entitled to exercise the Purchase Option (but Sublandlord
shall be entitled to exercise the Put Option) at any time after the
occurrence of an Event of Default by Subtenant hereunder, except that if
Xxxx provides an Option Notice and the Escrowed Funds within 10 days after
the occurrence of an Event of Default hereunder and pays all Base Rent and
other amounts due hereunder within 10 days after the occurrence of an Event
of Default, Xxxx shall be entitled to purchase the Property, on the
condition that Sublandlord shall continue to have and may exercise all
remedies available against Subtenant as a result of such Event of Default.
Delivery of the Option Notice shall constitute the irrevocable agreement of
Xxxx that Xxxx will tender the Purchase Price set forth hereinabove and
purchase the Property in the manner and at the time required under the
Master Lease. In addition, at the time that Xxxx provides the Option
Notice to Sublandlord, Xxxx shall place in escrow with a title insurance
company acceptable to Sublandlord the entire amount of the Purchase Price
(the "ESCROWED FUNDS"); subject to an escrow agreement that shall provide
(A) in the event that Xxxx completes the purchase of the Property in
accordance with the terms of this Sublease, the Escrowed Funds shall apply
to the Purchase Price and (B) notwithstanding any contrary instructions
from Xxxx, upon delivery of a deed to the title company which complies with
the provisions of Section 29(e) below, Sublandlord shall immediately be
entitled to the Escrowed Funds and the title company shall release the
Escrowed Funds to Sublandlord. The Sublandlord's receipt of the Escrowed
Funds shall in no way limit any other remedies that Sublandlord has against
Xxxx pursuant to the provisions hereof.
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(ii) Upon receipt of the Option Notice and such evidence
from Subtenant, Sublandlord shall provide the notice to Sumitomo required
pursuant to the Master Lease in a timely fashion to facilitate closing on
or before the closing date contemplated by the Master Lease. Upon receipt
of the Option Notice from Xxxx, Xxxx shall have irrevocably elected to
exercise the Purchase Option. Notwithstanding anything to the contrary
herein, in the event that Xxxx fails to complete the purchase for any
reason after delivery of the Option Notice, Sublandlord shall be entitled
to obtain specific performance or damages (including without limitation the
Escrowed Funds) or both from Xxxx.
(iii) If Xxxx is unable to exercise the Purchase Option
due to a default under the Master Lease of which neither Subtenant nor Xxxx
is aware as of the date of the exercise by Xxxx of the Purchase Option and
receipt by Sublandlord of the Option Notice and which is not also a default
under this Sublease, then Sublandlord shall be liable to Subtenant (but not
Xxxx) for actual (but not consequential) damages incurred by Subtenant in
connection therewith. Otherwise, Subtenant's and Xxxx'x remedies shall be
limited as set forth in Section 5(c) and 27 above.
(b) (i) Unless Xxxx shall have properly caused Sublandlord to
exercise the Purchase Option pursuant to Paragraph 29(a) above and
purchased the Property pursuant thereto, Xxxx shall purchase the Property
at the end of the Term for the Purchase Price. In such event, the closing
of such purchase shall occur on or before December 31, 2000, subject to
Sublandlord's right to extend such closing date for a reasonable period of
time in order to permit Sublandlord to acquire the Property from Sumitomo.
(ii) Upon the occurrence of an Event of Default, Sublandlord
shall be entitled to exercise the Put Option pursuant to Section 17(a)(i)
above and require Xxxx to purchase the Property.
(iii) If Xxxx breaches his obligation to purchase the
Property pursuant to Section 29(b)(i) or (ii) above (and has not provided
the Option Notice pursuant to Section 29(a) above), Sublandlord shall be
entitled to liquidated damages as its sole and exclusive remedy against
Xxxx in the amount of $503,000 (a sum which reflects in part that rent for
the Basement Space is being abated) minus (A) the amount of the Deposit
retained by Sublandlord if the Deposit is in fact retained by Sublandlord
and (B) the amount of any Sub-subtenant Payments received by Sublandlord
pursuant to Section 13(b)(ii) above. In the event of a breach of Xxxx'x
obligations pursuant to Section 29(b)(i) or (ii) above, the parties
acknowledge and agree that it would be difficult to determine Sublandlord's
exact damages and that the amount set forth above is a reasonable estimate
of damages and not a penalty. Notwithstanding the foregoing, in the event
that Xxxx provides the Option Notice pursuant to Section 29(a) above,
Sublandlord's remedies shall be governed by Section 29(a) above.
(c) If (i) Subtenant notifies Sublandlord in writing on or
before July 1, 1998 of a defect in the physical condition of the Property,
(ii) Subtenant provides Sublandlord evidence acceptable to Sublandlord of
the existence of such defect, (iii) Subtenant provides Sublandlord evidence
acceptable to Sublandlord that the cost to repair such defect exceeds 5% of
the Purchase
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Price, and (iv) Sublandlord receives a written request executed by Xxxx and
Subtenant requesting that Subtenant's obligation under 29(b) above be null
and void, then Xxxx'x obligations under Paragraph 29(b) above (as well as
his rights under Section 29(a) above) shall be null and void, unless
Sublandlord notifies Xxxx that Sublandlord will repair such defect and
diligently proceeds to repair such defect (which shall be at Sublandlord'
sole option and Sublandlord shall have no duty to do so). Except as set
forth in (d) below, in the event that Xxxx'x obligation to purchase the
Property under Paragraph 29(b) above becomes null and void, then the Base
Rent shall increase, effective the day that Subtenant provides the written
notification required pursuant to Section 29(c)(iv) above as follows, and
from and after such date, Subtenant shall pay to Landlord Base Rent in the
amount set forth below MINUS the amount of Sub-subtenant Payment actually
received by Sublandlord during such month:
May 1, 1998 through December 31, 1998: $33,514 per month;
January 1, 1999 through December 31, 1999: $36,560 per month; and
January 1, 2000 through December 31, 2000: $39,607 per month.
(d) In the event that (i) the Property does not comply with the
Americans With Disabilities Act (the "ADA"), (ii) Subtenant provides
Sublandlord evidence acceptable to Sublandlord that the Property does not
so comply on or before July 1, 1998, (iii) Subtenant provides Sublandlord
evidence acceptable to Sublandlord that the cost to cause the Property to
comply with the ADA would exceed 5% of the Purchase Price, and (iv)
Sublandlord receives a written request executed by Xxxx and Subtenant on or
before July 1, 1998 requesting that Xxxx'x obligation under 29(b) above be
null and void, then Xxxx'x obligations under Paragraph 29(b) above (as well
as his rights under Section 29(a) above) shall be null and void, unless
Sublandlord notifies Xxxx that Sublandlord will cause the Property to
comply with the ADA, which will be at Sublandlord's sole option (and
Sublandlord shall have no obligation to do so). In the event that Xxxx'x
obligation to purchase the Property under Paragraph 29(b) above shall
become null and void in accordance with the provisions of this Section
29(d), the Base Rent shall not increase in the manner set forth in (c)
above and Subtenant shall be entitled to retain any Sub-subtenant payments
received after such date.
(e) Xxxx agrees that in connection with any acquisition of the
Property by Xxxx pursuant to this Sublease that Sublandlord may, at its
option, cause Sumitomo to convey the Property directly to Xxxx by means of
a quit claim deed. Subtenant, Xxxx and Sublandlord each further agree to
execute and deliver all documents and instruments reasonably necessary in
order to effectuate the purchase transactions contemplated under this
Sublease. Sublandlord and Xxxx also agree that any conveyance to Xxxx
pursuant to this Sublease shall be "as is" and by quit claim deed and
without any representations or warranties; provided, however, that
Sublandlord shall convey, or cause Sumitomo to convey, the Property to Xxxx
subject to no other recorded exceptions to title other than (i) the
exceptions to title existing as of the date hereof, (ii) any exceptions to
title agreed to by Subtenant or Xxxx or being claimed by, through or under
Subtenant or Xxxx, or (iii) any other exceptions to title which do not
materially impair the value or use of the Property (it being understood
between Xxxx and Sublandlord that mechanics' liens, mortgages, deeds of
trust and similar encumbrances securing monetary obligations will be deemed
to materially impair the value of the Property and must be removed or
insured over prior
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to the conveyance). In connection with Xxxx'x acquisition of the Property,
Sublandlord shall quit claim to Xxxx any warranties that Sublandlord is
entitled to from contractors or suppliers in connection with the Building;
on the condition that such assignment shall be without representation and
warranties.
30. REPRESENTATIONS AND WARRANTIES OF SUBLANDLORD. Sublandlord
hereby represents and warrants to Subtenant as follows:
(a) ORGANIZATION AND STANDING. Sublandlord is a corporation
duly incorporated, validly existing and in good standing under the laws of
the State of Delaware.
(b) CORPORATE AUTHORITY. Sublandlord has corporate power and
corporate authority to lease the Property and to enter into and deliver
this Agreement and perform the transactions contemplated herein.
(c) BINDING EFFECT. This Agreement when executed and delivered
by all parties hereto and consented to by Sumitomo will constitute
Sublandlord's legal, valid and binding obligation enforceable against
Sublandlord in accordance with its terms, except to the extent that the
enforceability against Sublandlord of this Agreement in accordance with its
terms may be limited in accordance with principles of equity or applicable
insolvency, bankruptcy or other similar laws affecting creditors' rights
generally.
(d) APPROVALS; CONSENTS. All approvals, resolutions,
authorizations, consents, actions or orders required of Sublandlord for the
authorization, execution and delivery of, and for the consummation of the
transactions contemplated by, this Agreement, have been obtained.
(e) NO VIOLATION. The execution and delivery of this Agreement,
the consummation of the transactions contemplated by this Agreement, and
the fulfillment of and compliance with the terms and provisions hereof do
not (i) conflict with or violate any judicial or administrative order,
award, judgment or decree applicable to Sublandlord, (ii) conflict with any
of the terms, conditions or provisions of Sublandlord's Articles of
Incorporation or Bylaws or other organizational documents, or (iii) require
any approval, consent or authorization which has not been obtained from any
federal, state or local court, or any creditor or Sublandlord or any other
person or entity.
(f) CONDEMNATION. To the best of Sublandlord's current actual
knowledge, without inquiry, no condemnation action has been taken with
respect to the Property or any part thereof and there is not any pending
condemnation relating to any of the Property.
(g) LITIGATION. To the best of Sublandlord's current actual
knowledge, without inquiry, there are no investigations, actions, lawsuits,
claims arbitrations or proceedings, either judicial, administrative or
otherwise, pending against or affecting the Property, by or before any
court, governmental department, commission, board, bureau, agency,
mediator, arbitrator or other person or instrumentality.
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31. REPRESENTATIONS AND WARRANTIES OF SUBTENANT. Subtenant and Xxxx
hereby represent and warrant to Sublandlord as follows:
(a) ORGANIZATION AND STANDING. Subtenant is a corporation duly
incorporated, validly existing and in good standing under the laws of the
State of Delaware.
(b) CORPORATE AUTHORITY. Subtenant has corporate power and
corporate authority to lease the Property and to enter into and deliver
this Agreement and perform the transactions contemplated herein.
(c) BINDING EFFECT. This Agreement when executed and delivered
by all parties hereto and consented to by Sumitomo will constitute
Subtenant's and Xxxx'x legal, valid and binding obligation enforceable
against Subtenant and Xxxx in accordance with its terms, except to the
extent that the enforceability against Subtenant or Xxxx of this Agreement
in accordance with its terms may be limited in accordance with principles
of equity or applicable insolvency, bankruptcy or other similar laws
affecting creditors' rights generally.
(d) APPROVALS; CONSENTS. All approvals, resolutions,
authorizations, consents, actions or orders required for the authorization,
execution and delivery of, and for the consummation of the transactions
contemplated by, this Agreement by Subtenant and Xxxx, have been obtained.
(e) NO VIOLATION. The execution and delivery of this Agreement,
the consummation of the transactions contemplated by this Agreement, and
the fulfillment of and compliance with the terms and provisions hereof do
not (i) conflict with or violate any judicial or administrative order,
award, judgment or decree applicable to Subtenant or Xxxx, (ii) conflict
with any of the terms, conditions or provisions of Subtenant's Articles of
Incorporation or Bylaws or other organizational documents, or (iii) require
any approval, consent or authorization which has not been obtained from any
federal, state or local court, or any creditor or Subtenant or Xxxx or any
other person or entity.
32. BROKERS. Each of Sublandlord and Subtenant shall satisfy any fee
or commission payable to any broker or agent retained by it with respect to
this Sublease. Sublandlord and Subtenant each represent and warrant to one
another that no brokers', agents' or finders' fees or commissions are due
arising in connection with this Sublease, and each party hereto agrees to
indemnify and hold the other party harmless from claims made by any person
for any such fees, commissions or like compensation claiming to have dealt
with the party so indemnifying the other.
33. MISCELLANEOUS.
(a) Sublandlord and Sublandlord's agents have made no
representations, warranties, agreements or promises with respect to the
Property or the Master Lease except such as are expressed herein.
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(b) The covenants, conditions and agreements contained in this
Sublease shall bind and inure to the benefit of Sublandlord and Subtenant
and their respective successors and permitted assigns. If there is more
than one entity or person which or who are the Subtenant under this
Sublease, the obligations imposed upon Subtenant under this Sublease shall
be joint and several.
(c) Notwithstanding anything contained herein to the contrary,
Sublandlord is not and shall not in any way or for any purpose become
principal or partner of Subtenant in the conduct of its business, or
otherwise, or a joint venturer or member of a joint enterprise with
Subtenant hereunder.
(d) This Sublease and Subtenant's obligations hereunder shall
not be affected or excused because of Sublandlord's delay or failure to
perform or comply with any of Sublandlord's obligations hereunder for
reasons beyond the reasonable control of Sublandlord, including, without
limitation, strikes or other labor difficulties, inability to obtain
necessary governmental approvals, unavailability of materials, war, riot,
civil insurrection or governmental preemption in connection with a national
emergency.
(e) The failure of Sublandlord to seek redress for violation of,
or to insist upon the strict performance of, any covenant or condition of
this Sublease shall not prevent a subsequent act, which would have
originally constituted a violation, from having all the force and effect of
an original violation. The receipt by Sublandlord of rent with knowledge
of the breach of any covenant of this Sublease shall not be deemed a waiver
of such breach. No provisions of this Sublease shall be deemed to have
been waived by Sublandlord unless such waiver is in writing signed by
Sublandlord.
(f) No act or thing done by Sublandlord or Sublandlord's agents
during the Term shall be deemed an acceptance of a surrender of the
Property, and no agreement to accept such surrender shall be valid unless
in writing signed by Sublandlord. No employees of Sublandlord or of
Sublandlord's agents shall have any power to accept the keys of the
Property prior to the expiration of the Term. The delivery of keys to any
employee of Sublandlord, or of Sublandlord's agents, shall not operate as
a termination of this Sublease or a surrender of the Property.
(g) No payment by Subtenant, or receipt by Sublandlord, of a
lesser amount than the rent due hereunder, shall be deemed to be other than
on account of the earliest stipulated rent, 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 Sublandlord may accept such
check or payment without prejudice to Sublandlord's right to recover the
balance of such rent or pursue any other remedy available to Sublandlord.
(h) Time is of the essence hereof.
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(i) If any provision of this Sublease is determined by a court
of competent jurisdiction to be illegal, invalid or unenforceable, the
remainder of this Sublease shall not be affected thereby.
(j) The entire contract of the parties is contained herein and
all prior or contemporaneous negotiations, agreements, representations and
understandings, whether oral or written, are hereby superseded.
(k) This Sublease may be amended, altered or modified ONLY by an
instrument in writing signed by the party to be bound thereby.
(l) The headings of the Sections and Paragraphs of this Sublease
are inserted solely for convenient reference and shall in no manner affect
the interpretation of any provision(s) of this Sublease.
(m) The language in all parts of this Sublease shall be
construed according to its fair meaning and not strictly for or against
Sublandlord or Subtenant.
(n) The submission of this Sublease by Sublandlord, its agent or
representative for examination or execution by Subtenant does not
constitute an option or offer to lease the Property or a reservation of the
Property in favor of Subtenant. This Sublease shall become effective only
upon execution by both Sublandlord and Subtenant.
(o) This Sublease shall be governed by and interpreted in
accordance with the laws of the State of Colorado.
IN WITNESS WHEREOF, Sublandlord and Subtenant have respectively
executed this Sublease as of the date first set forth above.
SUBLANDLORD: SUBTENANT:
----------- ---------
THE XXXXXXX COMPANY, INC., GLOBAL WATER TECHNOLOGIES,
a Delaware corporation INC., a Delaware corporation
By: /s/ XXXX XXXXXXX By: /s/ XXXXXX X. XXXX
---------------------------- ----------------------------
Name: Xxxx Xxxxxxx Name: Xxxxxx X. Xxxx
Title: EVP Title: President
XXXX:
----
/s/ XXXXXX X. XXXX
-------------------------------
Xxxxxx X. Xxxx, an Individual
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EXHIBIT "A"
MASTER LEASE
------------
[omitted]
A-1
EXHIBIT "B"
SUMITOMO'S CONSENT TO SUBLEASE
------------------------------
1. SUMITOMO BANK LEASING AND FINANCE, INC., a Delaware corporation
("SUMITOMO"), as landlord under that certain Lease and Security Agreement,
dated as of December 27, 1995 (the "MASTER LEASE"), by and between Sumitomo
and The Xxxxxxx Company, Inc., a Delaware corporation ("COLEMAN"), as
Lessee, as amended to date, hereby acknowledges and consents to all of the
terms and conditions of that certain Sublease, dated as of February __,
1998 (the "SUBLEASE"), by and between Coleman, as Sublandlord, and Global
Water Technologies, Inc., a Delaware corporation, as subtenant
("Subtenant"), and Xxxxxx X. Xxxx, a copy of which has been reviewed and
approved by Sumitomo. Without limiting the generality of the foregoing,
Sumitomo consents to the sublease provisions set forth in Section 13(b)(i)
of the Sublease.
2. Sumitomo hereby acknowledges and agrees that it has read and is
familiar with the terms of the Sublease. All initially capitalized terms
not otherwise defined herein shall have the meanings ascribed to them in
the Sublease.
3. Notwithstanding anything to contrary in the Master Lease, Coleman
shall have an unconditional and unqualified right to exercise the Purchase
Option (as defined in the Master Lease) under Section 22.1 of the Master
Lease upon providing the notice set forth therein and tendering the
Purchase Option Price (as defined in the Master Lease). Coleman shall be
entitled to purchase the Property notwithstanding the occurrence of any
default or Event of Default (as defined in the Master Lease) under the
Master Lease or the failure to exercise the purchase option under the Other
Lease (as defined in the Master Lease) or to comply with any other
condition precedent to the exercise of the Purchase Option under the Master
Lease.
4. Sumitomo agrees that the Purchase Option Price as of the date
hereof is $5,800,000.
5. To induce Sumitomo to execute this Consent, Coleman covenants for
the benefit of Sumitomo as follows:
(a) Coleman shall not, without the written agreement of
Sumitomo, to the extent that consent by Sumitomo is required under the
Master Lease, grant any consent pursuant to Section 13(a) of the Sublease;
and
(b) cumulatively with, but without duplication of, Xxxxxxx'x
obligations under the Master Lease, Coleman shall indemnify, defend and
hold harmless Sumitomo and Sumitomo's agents, employees, officers,
directors, shareholders, and contractors, to the same extent and in the
same manner as Subtenant indemnifies Coleman pursuant to Section 18(d) or
21(a) of the Sublease, against all liabilities incurred by Sumitomo,
including without limitation those liabilities incurred by Sumitomo arising
out of the acts or omissions of Subtenant, of the
B-1
types specified in said Section 18(d) or 21(a). It is the parties'
intentions that Coleman "pass through" to Sumitomo the indemnity
obligations of Subtenant under the Sublease. Accordingly, Sumitomo's right
of recovery against Coleman pursuant to the provisions of this Paragraph
5(b) shall be limited to the amount and scope of any recovery of Coleman
against Subtenant under the Sublease, it being agreed that Coleman shall
diligently prosecute its rights and remedies against Subtenant; on the
condition that if Coleman reasonably determines (a) that there is not a
substantial likelihood of collecting from Subtenant an amount sufficient to
justify the time and expense required in connection with such collection
efforts, or (b) that there is not a substantial likelihood that Xxxxxxx'x
claim against Subtenant will be successful or (c) based on all of the
relevant facts and circumstances not to pursue its rights and remedies
against Subtenant, then Coleman shall not be required to prosecute its
rights and remedies against Subtenant.
IN WITNESS WHEREOF, the undersigned have executed this Consent to
Sublease as of this 27th day of February, 1998.
SUMITOMO:
--------
SUMITOMO BANK LEASING AND FINANCE, INC.,
a Delaware corporation
By: /s/ XXXXXXX XXXX
-------------------------------
Name: Xxxxxxx Xxxx
Title: President
COLEMAN:
-------
THE XXXXXXX COMPANY, INC.,
a Delaware corporation
By: /s/ XXXX XXXXXXX
-------------------------------
Name: Xxxx Xxxxxxx
Title: EVP
B-2
