Exhibit 10.4
MULTI-TENANT LEASE
This lease is made as of the 28th day of January 2004, by and between First
Industrial, L.P., a Delaware limited partnership ("Landlord) and Zynex Medical,
Inc., a Colorado corporation, ("Tenant").
1. Basic Provisions: In addition to other terms which are defined elsewhere in
this Lease or any Exhibits, the terms defined in the following subsections
of this Section 1 shall have the meaning set forth in such subsection
whenever used in this Lease.
1.1 Building: 52,581 square foot multi-tenant building part of the
Building Complex commonly known as Southwest Business Center.
1.2 Premises: Approximately 9,857 square feet of space located in the
Building, including all improvements therein or to be provided by
Landlord under the terms of this Lease, commonly known by the street
address of 0000 Xxxxxxxxx Xxx, Xxxx X-0, Xxxxxxxxx, Xxxxxxxx 00000, as
outlined on Exhibit A attached hereto. In addition to Tenant's rights
to use and occupy the Premises as hereinafter specified, Tenant shall
have non-exclusive rights to the Common Areas (as defined in Section
2.4 below) as hereinafter specified, but shall not have any rights to
the roof, exterior walls or utility raceways of the Building or to any
other buildings in the Building Complex.
1.3 Building Complex: The Premises and the Building, the Common Areas (as
defined below), the land upon which they are located, along with all
other buildings and improvements thereon depicted on Exhibit B
attached hereto and made a part hereof.
1.4 Parking: Tenant's pro-rata share of unreserved vehicle parking spaces.
1.5 Term: Five (5) years ("Primary Lease Term") commencing March 1, 2004
("Commencement Date") and ending February 28, 2009 ("Expiration
Date").
1.6 Estimated Delivery Date: March 1, 2004. [This is a nonbinding estimate
of the date on which Landlord currently estimates it will be able to
deliver the Premises to Tenant for the purposes of Tenant commencing
its tenant finish work.]
1.7 Base Rent:
Lease Year Rate/SF NNN Monthly Rent
--------------- ----------- ------------
3/1/04 -2/28/05 $4.50 $3,696.38
3/1/05 -2/28/06 $9.25 $7,598.10
3/1/06 -2/28/07 $9.50 $7,803.46
3/1/07 -2/29/08 $9.75 $8,008.81
3/1/08 -2/28/09 $10.00 $8,214.17
Upon execution Tenant shall pay $6,423.48 as Base Rent and estimated Common
Area Maintenance expenses for the period of March 1-31, 2004. For the
Primary Lease Term Base Rent shall be payable on the first day of each
month.
1.8 Rentable Area: Approximately 52,581 square feet which is all rentable
space available for lease in the Building Complex. Unless otherwise
provided herein, any square footage set forth in this Lease or that
may have been used in calculating this Rent and/or Common Area
Operating Expenses is an approximation which Landlord and Tenant agree
is reasonable and the Base Rent and Tenant's Share based thereon are
not subject to revision whether or not the actual square footage is
more or less. Notwithstanding the foregoing, if there is: (i)
alteration to the Premises or the Building or Building Complex after
the Commencement Date; or (ii) any change in the designated Rentable
Area of the Building Complex, then Landlord shall have the exclusive
discretion to recalculate Tenant's Share by substituting the revised
approximate Rentable Area of the Premises and/or the Building Complex
in the calculation described above. Any change in the approximate
Rentable Area of the Premises or recalculated by Landlord shall be
effective, for purposes of calculating Tenant's Share as of the first
day of the next calendar month after such change.
1.9 Tenant's Share of Common Area Operating Expenses: 18.75% (calculated
by dividing 9.857 by 52.581).
1.10 Security Deposit: $10,940.00.
1.11 Permitted Use: General office for sales of stroke recovery systems.
1.12 Guarantor. The obligations of the Tenant under this Lease are to be
guaranteed by Xxxxxx Xxxxxxxxx.
2. Premises, Parking and Common Areas.
2.1 Grant. Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, the Premises for the term, at the rent and upon all of the
terms, covenants and conditions set forth in this Lease.
2.2 Landlord Delivery. Landlord shall deliver the Premises to Tenant clean
and free of debris on the Commencement Date and warrants to Tenant
that the existing plumbing, electrical systems, fire sprinkler system,
lighting, air conditioning and heating systems and loading doors, if
any, in the Premises, other than those constructed by Tenant, shall be
in good operating condition on the Commencement Date. If Tenant does
not give Landlord written notice of a non-compliance with this
warranty within thirty (30) days after the Commencement Date,
correction of that non-compliance shall be the obligation of Tenant at
Tenant's sole cost and expense.
2.3 Acceptance of Premises. Tenant hereby acknowledges: (a) that it has
been advised to satisfy itself with respect to the condition of the
Premises including, but not limited to, the electrical and fire
sprinkler systems, security, environmental aspects, and compliance
with the Americans with Disabilities Act and applicable zoning,
municipal, county, state and federal laws, ordinances and regulations
and any covenants or restrictions of record (collectively, "Applicable
Laws") and the present and future suitability of the Premises for
Tenant's intended use; (b) that Tenant has made such investigation as
it deems necessary with reference to such matters, is satisfied with
reference thereto, and assumes all responsibility therefore as the
same relate to Tenant's occupancy of the Premises and/or the terms of
this Lease; and (c) that neither Landlord, nor any of Landlord's
agents, has made any oral or written representations or warranties
with respect to said matters other than as set forth in this Lease. If
Landlord has agreed to complete finish work in the Premises, such work
shall be completed in accordance with Exhibit C attached hereto and
made a part hereof (the "Work Agreement"), and such work may be
referred to herein as "Landlord's Work. Except as set forth expressly
in the Work Agreement, Landlord shall have no obligation for
completion of remodeling of the Premises and Tenant shall accept the
Premises in its "AS IS" condition.
COPY
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2.4 Common Areas. The term "Common Areas" is defined as all areas and
facilities outside the Premises and within the exterior boundary line
of the Building Complex and interior utility raceways within the
Premises that are provided and designated by the Landlord from time to
time for the general non-exclusive use of Landlord, Tenant and other
tenants of the Building Complex and their respective employees,
suppliers, shippers, customers, contractors and invitees, including
parking areas, utility rooms, loading and unloading areas, trash
areas, roadways, sidewalks, walkways, parkways, driveways and
landscaped areas. Landlord hereby grants to Tenant, for the benefit of
Tenant and its employees, suppliers, shippers, contractors, customers
and invitees, during the Term of this Lease the non-exclusive right to
use, in common with others entitled to such use, the Common Areas as
they exist from time to time, subject to any rights, powers, and
privileges reserved by Landlord under the terms hereof or under the
terms of any rules and regulations or restrictions governing the use
of the Building Complex. Under no circumstances shall the right
therein granted to use the Common Areas be deemed to include the right
to store any property, temporarily or permanently, in the Common
Areas. Any such storage shall be permitted only by the prior written
consent of Landlord or Landlord's designated agent, which consent may
be revoked at any time. In the event that any unauthorized storage
shall occur, then Landlord shall have the right, without notice, in
addition to such other rights and remedies that it may have, to remove
the property and charge the cost to Tenant, which cost shall be
immediately payable upon demand by Landlord. Landlord or such other
person(s) as Landlord may appoint shall have the exclusive control and
management of the Common Areas and shall have the right, from time to
time, to establish, modify, amend and enforce reasonable rules and
regulations with respect thereto. Landlord shall have the right, in
Landlord's sole discretion, from time to time: (i) to make changes to
the Common Areas, including, without limitation, changes in the
location, size, shape and number of driveways, entrances, parking
spaces, parking areas, loading and unloading areas, ingress, egress,
direction of traffic, landscaped areas, walkways and utility raceways;
(ii) to close temporarily any of the Common Areas for maintenance
purposes so long as reasonable access to the Premises remains
available; (iii) to designate other land outside the boundaries of the
Building Complex to be a part of the Common Areas; (iv) to add
additional building and improvements to the Common Areas; (v) to use
the Common Areas while engaged in making additional improvements,
repairs or alterations to the Building Complex, or any portion
thereof; and (vi) to do and perform such other acts and make such
other changes in, to or with respect to the Common Areas and Building
Complex as Landlord may, in the exercise of sound business judgment
deem to be appropriate.
2.5 Parking. Tenant shall be entitled to use the number of unreserved
parking spaces specified in Section 1.4 on those portions of the
Common Areas designated from time to time by Landlord for parking.
Tenant shall not use more parking spaces than said number. Said
parking spaces shall be used for parking by vehicles no larger than
full-size passenger automobiles or pick-up trucks, herein called
"Permitted Size Vehicles." Vehicles other than Permitted Size Vehicles
shall be parked and loaded or unloaded as directed by Landlord in the
Rules and Regulations issued by Landlord. Tenant shall not permit or
allow any vehicles that belong to or are controlled by Tenant or
Tenant's employees, suppliers, shippers, customers, contractors or
invitees to be loaded, unloaded, or parked in areas other than those
designated by Landlord for such activities. If Tenant permits or
allows use of the prohibited areas, then Landlord shall have the
right, without notice, in addition to such other rights and remedies
that it may have, to remove or tow away the vehicle involved and
charge the cost to Tenant, which cost shall be immediately payable
upon demand by Landlord.
3. Term.
3.1 Term. The Commencement Date, Expiration Date and Primary Lease Term of
this Lease are as specified in Section l.5.
3.2 Delivery Date. If a Delivery Date is specified in Section 1.6 and if
Tenant totally or partially occupies the Premises after the Delivery
Date but prior to the Commencement Date, the obligation to pay Base
Rent shall be abated for the period of such early occupancy. All other
terms of this Lease, however (including but not limited to the
obligations to pay Tenant's Share of Common Area Operating Expenses
and to carry the insurance required in the Lease) shall be in effect
during such period.
3.3 Delay In Possession. If for any reason Landlord cannot deliver
possession of the Premises to Tenant by the Estimated Delivery Date,
if one is specified in Section 1.6, or if no Delivery Date is
specified, by the Commencement Date, Landlord shall not be subject to
any liability therefor, nor shall such failure affect the validity of
this Lease, or the obligations of Tenant hereunder, or extend the term
hereof; but in such case, Tenant shall not, except as otherwise
provided herein, be obligated to pay Base Rent or perform any other
obligation of Tenant under the terms of this Lease until Landlord
delivers possession of the Premises to Tenant. The delay of said date
shall be in full satisfaction of any claims Tenant might otherwise
have as a result of such delay. If in accordance with the foregoing
provision, the Commencement Date would occur on other than the first
day of a calendar month, the Commencement Date shall be delayed until
the first day of the next calendar month and the Primary Lease Term
shall be measured from such date; provided, however, during any period
of delayed commencement, all terms and provisions set forth in this
Lease including, but not limited to Tenant's obligation to pay Base
Rent and all other charges under the Lease shall commence at such
earlier date. In order to place in writing the exact Commencement Date
and Expiration Date of the Lease, the parties agree to execute a
supplemental agreement to become a part hereof setting forth such
dates as determined under the provisions of this Section 3.3.
3.4 Lease Year. "Lease Year" as used in this Lease shall be defined as
each twelve month period beginning with the Commencement Date or any
anniversary thereof and ending on the immediately preceding day one
year later.
4. Rent.
4.1 Base Rent. Tenant shall pay Base Rent and other rent or charges, as
the same may be adjusted from time to time, to Landlord in lawful
money of the United States, without offset or deduction on or before
the day on which it is due under the terms of this Lease. Base Rent
and all other rent and charges for the period during the term hereof
which is for less than one full month shall be prorated based upon the
actual number of days of the month involved. Payment of Base Rent and
other charges shall be made to Landlord at its address stated herein
or to such other persons or at such other addresses as Landlord may
from time to time designate in writing to Tenant.
4.2 Common Area Operating Expenses. Tenant shall pay to Landlord during
the term hereof, in addition to the Base Rent, Tenant's Share (as
specified in Section 1.9) of all Common Area Operating Expenses, as
hereinafter defined, during each calendar year of the term of this
Lease, in accordance with the following provisions:
(a) "Common Area Operating Expenses" are defined, for purposes of
this Lease, as all costs incurred by Landlord relating to the
ownership and operation of the Building Complex including, but
not limited to, the following:
(i) The operation, repair and maintenance, in neat, clean, good
order and condition of the Common Areas, including parking
areas, utility rooms, loading and unloading areas, trash
areas, roadways, sidewalks, walkways, parkways, driveways,
landscaped areas, striping, bumpers, irrigation systems,
Common Area lighting facilities, fences and gates,
elevators, roofs, and exterior walls, including paint;
exterior signs, awnings, any tenant directories, and fire
detection, sprinkler systems, and all professional fees
incurred in connection with the operation, management and
maintenance of the Building Complex.
(ii) The cost of water, gas, electricity and telephone to service
either the Building Complex and/or the Premises, to the
extent not separately metered.
(iii) Snow, ice and debris removal service, and security services
and the costs of any environmental inspections.
(iv) Cost of capital improvements, structural repairs and
replacements in or to the Building Complex, which shall be
amortized at a market rate of return over the useful life of
such item as determined by Landlord's accountants.
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(v) Real Property Taxes to be paid by Landlord for the Building
and the Common Areas under Section 11 hereof.
(vi) The cost of the premiums for the insurance policies
maintained by Landlord under Section 9 hereof.
(vii) Any deductible portion of an insured loss concerning the
Building or the Common Areas.
(viii) Any other services to be provided by Landlord that are
stated elsewhere in this Lease to be a Common Area
Operating Expense.
(b) Any Common Area Operating Expenses and Real Property Taxes that are
specifically attributable to the Building or to such other building in
the Building Complex or to the operation, repair and maintenance
thereof shall be allocated entirely to the Building or such other
building. However, any Common Area Operating Expenses and Real
Property Taxes that are not specifically attributable to the Building
or to any other building or to the operation, repair and maintenance
thereof, shall be equitably allocated by Landlord to all buildings in
the Building Complex.
(c) The inclusion of the improvements, facilities and services set forth
in Section 4.2(a) shall not be deemed to impose an obligation upon
Landlord to either have said improvements or facilities or to provide
those services unless Landlord has agreed elsewhere in this Lease to
provide the same or some of them.
(d) Tenant's Share of Common Area Operating Expenses shall be payable by
Tenant within ten (10) days after a reasonably detailed statement of
actual expenses is presented to Tenant by Landlord. At Landlord's
option, however, an amount may be estimated by Landlord from time to
time of Tenant's Share of annual Common Area Operating Expenses and
the same shall be payable monthly, as Landlord shall designate, during
each calendar year on the same day as the Base Rent is due hereunder.
If during any particular calendar year, there is a change in the
information on which Landlord based the estimate upon which Tenant is
then making its estimated Operating Expense payments so that such
estimate furnished to Tenant is no longer accurate, Landlord shall be
permitted to revise such estimate from time to time by notifying
Tenant and there shall be such adjustments made in the monthly amount
of Tenant's Share on the first day of the month following the serving
of such statement to Tenant. Landlord shall deliver to Tenant after
the expiration of each calendar year a reasonably detailed statement
showing Tenant's Share of the actual Common Area Operating Expenses
incurred during the preceding year. If Tenant's payments under this
Section 4.2(d) during said preceding calendar year exceed Tenant's
Share as indicated on said statement, Tenant shall be credited the
amount of such overpayment against Tenant's Share of Common Area
Operating Expenses next becoming due. If Tenant's payments under this
Section 4.2(d) during said preceding year were less than Tenant's
Share as indicated on said statement, Tenant shall pay to Landlord the
amount of the deficiency within ten (10) days after delivery by
Landlord to Tenant of said statement. Landlord's failure to deliver
statement of Tenant's share within one hundred and twenty (120) days
shall not relieve Tenant of the obligation to pay sums otherwise due.
Tenant's obligation to pay Tenant's Share of Common Area Operating
Expenses shall survive the expiration or termination of the Lease.
5. Security Deposit. Tenant shall deposit with Landlord upon Tenant's
execution hereof the Security Deposit set forth in Section 1.10 as security
for Tenant's faithful performance of Tenant's obligations under this Lease.
If Tenant fails to pay Base Rent or other rent or charges due hereunder, or
otherwise is in default under this Lease, Landlord may use, apply or retain
all or any portion of said Security Deposit for the payment of any amount
due Landlord or to reimburse or compensate Landlord for any liability,
cost, expense, loss or damage (including attorneys' fees) which Landlord
may suffer or incur by reason thereof. If Landlord uses or applies all or
any portion of said Security Deposit, Tenant shall within ten (10) days
after written request therefore deposit monies with Landlord sufficient to
restore said Security Deposit to the full amount required by this Lease.
Any time the Base Rent increases during the term of this Lease, Tenant
shall, upon written request from Landlord, deposit additional monies with
Landlord as an addition to the Security Deposit so that the total amount of
the Security Deposit shall at all times bear the same proportion to the
then current Base Rent as the initial Security Deposit bears to the initial
Base Rent set forth in Section 1.7. Landlord shall not be required to keep
all or any part of the Security Deposit separate from its general accounts.
Landlord shall, within sixty (60) days after the expiration of the term
hereof and after Tenant has vacated the Premises, return to Tenant (or, at
Landlord's option, to the last assignee, if any, of Tenant's interest
herein), that portion of the Security Deposit, or applied by Landlord. No
part of the Security Deposit shall be considered to be held in trust, to
bear interest or other increment for its use, or to be prepayment for any
monies to be paid by Tenant under this Lease. At Landlord's election,
Landlord may elect to have the Security Deposit held by Landlord's manager
in a separate security deposit, trust, trustee or escrow account
established and maintained by such manager with respect to certain security
deposits of tenants within the Building Complex. Unless Tenant is so
notified, (i) Landlord will hold the Security Deposit and be responsible
for its return; and (ii) Tenant may request return of the Security Deposit
by giving Landlord written notice in accordance with the provisions of the
Lease, and Landlord's manager, if any, agrees that in the event of a
dispute over the ownership of the Security Deposit, the manager will not
wrongfully withhold Landlord's true name and current mailing address from
Tenant. Landlord may deliver the funds deposited herein by Tenant to the
purchaser of Landlord's interest in the Premises in the event such interest
be sold, and thereupon, Landlord shall be discharged from further liability
with respect to such deposit. If the claims of Landlord exceed said
deposit, Tenant shall remain liable for the balance of such claims.
6. Use.
6.1 Permitted Use.
(a) Tenant shall use and occupy the Premises only for the Permitted
Use set forth in Section 1.11 and for no other purpose. Tenant
shall not use or permit the use of the Premises in a manner that
is unlawful, creates waste or a nuisance, or that disturbs owners
and/or occupants of, or causes damage to the Premises or
neighboring premises or properties.
(b) Landlord hereby agrees to not unreasonably withhold or delay its
consent to any written request by Tenant, Tenant's assignees or
subtenants, and by prospective assignees and subtenants of
Tenant, its assignees and subtenants, for a modification of said
Permitted Use so long as the same will not impair the structural
integrity of the improvements on the Premises or in the Building
or the mechanical or electrical systems therein does not conflict
with uses by other Tenants, is not significantly more burdensome
to the Premises or the Building and the improvements thereon, and
is otherwise permissible pursuant to this Section 6. If Landlord
elects to withhold such consent, Landlord shall within five (5)
business days after such request give a written notification of
same, which notice shall include an explanation of Landlord's
reasonable objections to the change in use.
7. Hazardous Substances.
7.1 Consent. The term "Hazardous Substance" as used in this Lease shall
mean any product, substance, chemical, material or waste whose
presence, nature, quantity and/or intensity of existence, use,
manufacture, disposal, transportation, spill, release or effect,
either by itself or in combination with other materials expected to be
on the Premises, is either: (i) potentially injurious to the public
health, safety or welfare, the environment, or the Premises; (ii)
regulated or monitored by any governmental authority; or (iii) a basis
for potential liability of Landlord to any governmental agency or
third party under any applicable statute or common law theory.
Hazardous Substance shall include, but not be limited to hydrocarbons,
petroleum gasoline, crude oil or any products or by-products thereof.
Tenant shall not engage in any activity in or about the Premises which
constitutes a Reportable Use (as hereinafter defined) of Hazardous
Substances without the express prior written consent of Landlord and
compliance in a timely manner (at Tenant's sole cost and expense) with
all Applicable Requirements (as defined in Section 7.4). "Reportable
Use" shall mean (i) the installation or use of any above or below
ground storage tank; (ii) the generation, possession, storage, use,
transportation, or disposal of a Hazardous Substance that requires a
permit from, or with respect to which a report, notice, registration
or business plan is required to be filed with, any governmental
authority; and (iii) the presence in, on or about the Premises of a
Hazardous Substance with respect to which any Applicable Laws require
that a notice be given to persons entering or occupying the Premises
or neighboring properties. Notwithstanding the foregoing. Tenant may,
without Landlord's prior consent but upon notice to Landlord and in
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compliance with all Applicable Requirements, use any ordinary and
customary materials reasonably required to be used by Tenant in the
normal course of the Permitted Use, so long as such use is not a
Reportable Use and does not expose the Premises or neighboring
properties to any meaningful risk of contamination or damage or expose
Landlord to any liability therefor. In addition, landlord may (but
without any obligation to do so) condition its consent to any
Reportable Use of any Hazardous Substance by Tenant upon Tenant's
giving Landlord such additional assurances as Landlord, in its
reasonable discretion, deems necessary to protect itself, the public,
the Premises and the environment against damage, contamination or
injury and/or liability therefor including but not limited to the
installation (and, at Landlord's option, removal on or before Lease
expiration or earlier termination) of reasonably necessary protective
modifications to the Premises (such as concrete encasements) and/or
the deposit of an additional Security Deposit under Section 5.
7.2 Duty to Inform Landlord. If Tenant knows, or has reasonable cause to
believe, that a Hazardous Substance has come to be located in, on,
under or about the Premises or the Building, other than as previously
consented to by Landlord, Tenant shall immediately give Landlord
written notice thereof, together with a copy of any statement, report,
notice, registration, application, permit, business plan, license,
claim, action, or proceeding given to, or received from, any
governmental authority or private party concerning the presence,
spill, release, discharge of, or exposure to, such Hazardous Substance
including but not limited to all such documents as may be involved in
any Reportable Use involving the Premises. Tenant shall not cause or
permit any Hazardous Substance to be spilled or released in, on, under
or about the Premises (including, without limitation, through the
plumbing or sanitary sewer system).
7.3 Indemnification. Tenant shall indemnify, protect, defend and hold
Landlord, its managers, members, officers, directors, agents,
employees, lenders and ground Landlord, if any, and the Premises,
harmless from and against any and all damages, liabilities, judgments,
costs, claims, liens, expenses, penalties, loss of permits and
attorneys' and consultants' fees arising out of or involving any
Hazardous Substance brought onto the Premises by or for Tenant or by
anyone under Tenant's control. Tenant's obligations under this Section
7.3 shall include, but not be limited to, the effects of any
contamination or injury to any person, property or the environment
created or suffered by Tenant, and the cost of investigation
(including consultants' and attorneys' fees and testing), removal,
remediation, restoration and/or abatement thereof, or of any
contamination therein involved, and shall survive the expiration or
earlier termination of this Lease. No termination, cancellation or
release agreement entered into by Landlord and Tenant shall release
Tenant from its obligations under this Lease with respect to Hazardous
Substances, unless specifically so agreed by Landlord in writing at
the time of such agreement. The indemnification set forth above shall
survive the expiration or termination of this Lease.
7.4 Tenant's Compliance with Requirements. Tenant shall at Tenant's sole
cost and expense, fully, diligently and in a timely manner, comply
with all "Applicable Requirements," which term is used in this Lease
to mean all laws, rules, regulations, ordinances, directives,
covenants, easements and restrictions of record, permits, the
requirements of any applicable fire insurance underwriter or rating
bureau, and the recommendations of Landlord's engineers and/or
consultants, relating in any manner to the Premises (including but not
limited to matters pertaining to (i) industrial hygiene, (ii)
environmental conditions on, in, under or about the Premises,
including soil and groundwater conditions; and (iii) the use,
generation, manufacture, production, installation, maintenance,
removal, transportation, storage, spill, or release of any Hazardous
Substance), now in effect or which may hereafter come into effect.
Tenant shall, within five (5) days after receipt of Landlord's written
request, provide Landlord with copies of all documents and
information, including but not limited to permits, registrations,
manifests, applications, reports and certificates, evidencing Tenant's
compliance with any Applicable Requirements specified by Landlord, and
shall immediately upon receipt, notify Landlord in writing (with
copies of any documents involved) of any threatened or actual claim,
notice, citation, warning, complaint or report pertaining to or
involving failure by Tenant or the Premises to comply with any
Applicable Requirements.
7.5 Inspection. Landlord, Landlord's agents, employees, contractors and
designated representatives, and the holders of any mortgages, deeds of
trust or ground leases on the Premises ("Lenders") shall have the
right to enter the Premises at any time in the case of an emergency,
and otherwise at reasonable times, for the purpose of inspecting the
condition of the Premises and for verifying compliance by Tenant with
this Lease and all Applicable Requirements, and Landlord shall be
entitled to employ experts and/or consultants in connection therewith
to advise Landlord with respect to Tenant's activities, including but
not limited to Tenant's installation, operation, use, monitoring,
maintenance, or removal of any Hazardous Substance on or from the
Premises. The costs and expenses of any such inspections shall be paid
by the party requesting same, unless a Default of this Lease by Tenant
or a violation of Applicable Requirements or a contamination, caused
or materially contributed to by Tenant, is found to exist or to be
imminent, or unless the inspection is requested or ordered by a
governmental authority as the result of any such existing or imminent
violation or contamination. In such case, Tenant shall upon request
reimburse Landlord or Landlord's Lender, as the case may be, for the
costs and expenses of such inspections.
8. Maintenance, Repairs, Utility Installations, Trade Fixtures and
Alterations.
8.1 By Tenant.
(a) Subject to the provisions of Sections 8.2, 10, and 15, Tenant
shall, at Tenant's sole cost and expense and at all times, keep
the Premises and every part thereof in good order, condition and
repair (whether or not such portion of the Premises requiring
repair, or the means of repairing the same, are reasonably or
readily accessible to Tenant, and whether or not the need for
such repairs occurs as a result of Tenant's use, any prior use,
the elements or the age of such portion of the Premises),
including, without limiting the generality of the foregoing, all
equipment or facilities specifically serving the Premises;
whether or not the equipment or facilities are located within the
Premises, such as plumbing, heating, air conditioning and
ventilating system, electrical lighting facilities, boilers,
fired or unfired pressure vessels, fire hose connections if
within the Premises, fixtures, interior walls, interior surfaces
of exterior walls, ceilings, floors, windows, doors serving the
Premises, including overhead doors, dock bumpers, dock pads, dock
levelers, etc., plate glass, and skylights, but excluding any
items which are the responsibility of Landlord pursuant to
Section 8.2 below. Tenant, in keeping the Premises in good order,
condition and repair, shall exercise and perform good maintenance
practices. Tenant's obligations shall include restorations,
replacements or renewals when necessary to keep the Premises and
all improvements thereon or a part thereof in good order,
condition and state of repair. Tenant shall be responsible for
trash removal.
(b) Tenant shall, at Tenant's sole cost and expense, procure and
maintain a contract, with copies to Landlord, customary form and
substance for and with a contractor specializing and experienced
in the inspection, maintenance and service of the heating, air
conditioning and ventilation system for the Premises. However,
Landlord reserves the right, upon notice to Tenant, to procure
and maintain the preventative maintenance contract for the
heating, air conditioning and ventilating systems, and if
Landlord so elects, Tenant shall reimburse Landlord, upon demand,
for the cost thereof.
(c) If Tenant fails to perform Tenant's obligations under this
Section 8.1, Landlord may enter upon the Premises after ten (10)
days' prior written notice to Tenant (except in the case of an
emergency, in which case no notice shall be required), perform
such obligations on Tenant's behalf, and put the Premises in good
order, condition and repair.
8.2 By Landlord. Subject to the provisions of Sections 2.2, 4.2, 6, 8.1,
10 and 15, and except for damage caused by any negligent or
intentional act or omission of Tenant, its agents, employees,
suppliers or invitees, in which event Tenant shall repair the damage,
Landlord, subject to reimbursement pursuant to Section 4.2, shall keep
in good order, condition and repair the foundations, exterior walls,
structural condition of interior bearing walls, exterior roof, fire
sprinkler and/or standpipe and hose (if located in the Common Areas)
or other automatic fire extinguishing systems including fire alarm
and/or smoke detention systems and equipment, fire hydrants, parking
lots, walkways, parkways, driveways, landscaping, fences, signs, main
sanitary sewer lines and utility systems serving the Common Areas and
all parts thereof as well as providing the services for which there is
a Common Area Operating Expense pursuant to Section 4.2. Landlord
shall not be obligated to paint the exterior or interior surfaces of
exterior walls nor shall Landlord be obligated to maintain, repair or
replace windows, doors or plate glass of the Premises. Tenant shall
have no right to make repairs to the Building or Building Complex at
Landlord's expense.
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8.3 Utility Installations, Trade Fixtures, Alterations.
(a) Definitions, Consent Required. The term "Utility Installations" is
used in this Lease to refer to all air lines, power panels, electrical
distribution, security, fire protection systems, communications
systems, lighting fixtures, heating, ventilating and air conditioning
equipment, plumbing, and fencing in, on, or about the Premises. The
term "Trade Fixtures" shall mean Tenant's machinery and equipment
which can be removed without doing material damage to the Premises.
The term "Alterations" shall mean any modification of the improvements
on the Premises after the Delivery Date, other than Utility
Installations or Trade Fixtures. "Tenant-Owned Alterations and/or
Utility Installations" are defined as Alterations and/or Utility
Installations made by Tenant that are not yet owned by Landlord
pursuant to Section 8.4(a). Tenant shall not make nor cause to be made
any Alterations or Utility Installations in, on, under or about the
Premises without Landlord's prior written consent. Tenant may,
however, make non-structural Utility Installations to the interior of
the Premises (excluding the roof) without Landlord's consent but upon
notice to Landlord, so long as they are not visible from the outside
of the Premises, do not involve puncturing, relocating or removing the
roof or any existing walls or changing or interfering with the fire
sprinkler or fire detection systems and the cumulative cost thereof
during the term of this Lease as extended does not exceed two thousand
five hundred dollars ($2,500.00.)
(b) Consent, Any Alterations or Utility Installations that Tenant shall
desire to make and which require the consent of the Landlord shall be
presented to Landlord in written form with detailed plans. All
consents given by Landlord, whether by virtue of Section 8.3(a) or by
subsequent specific consent, shall be deemed conditioned upon: (i)
Tenant acquiring all applicable permits required by governmental
authorities; (ii) the furnishing of copies of such permits together
with a copy of the plans and specifications for the Alteration or
Utility Installation to Landlord prior to commencement of the work
thereon; and (iii) the compliance by Tenant with all conditions of
said permits in a prompt and expeditious manner. Any Alterations or
Utility Installations by Tenant during the term of this Lease shall be
done in a good and workmanlike manner, with good and sufficient
materials, and be in compliance with all Applicable Requirements.
Tenant shall promptly upon completion thereof furnish Landlord with
as-built plans and specifications therefor. Landlord may, (but without
obligation to do so) condition its consent to any requested Alteration
or Utility Installation that costs two thousand five hundred dollars
($2,500.00) or more upon Tenant providing Landlord with a lien and
completion bond in an amount equal to one and one-half times the
estimated cost of such Alteration or Utility Installation.
(c) Lien Protection. Tenant shall pay when due all claims for labor or
materials furnished or alleged to have been furnished to or for Tenant
at or for use on the Premises, which claims are or may be secured by
any mechanic's or materialmen's lien against the Premises or any
interest therein. Tenant shall give Landlord not less than ten (10)
days' notice prior to the commencement of any work in, on, or about
the Premises, and Landlord shall have the right to post notices of
non-responsibility in or on the Premises as provided by law. If Tenant
shall, in good faith, contest the validity of any such lien, claim or
demand, then Tenant shall, at its sole expense, defend and protect
itself, Landlord and the Premises against the same and shall pay and
satisfy any such adverse judgment that may be rendered thereon before
the enforcement thereof against the Landlord or the Premises. If
Landlord shall require, Tenant shall furnish to Landlord a surety bond
satisfactory to Landlord in an amount equal to one and one-half times
the amount of such contested lien, claim or demand, indemnifying
Landlord against liability for the same, as required by law for the
holding of the Premises free from the effect of such lien or claim. In
addition, Landlord may require Tenant to pay Landlord's attorneys'
fees and costs in participating in such action if Landlord shall
decide it is to its best interest to do so.
8.4 Ownership, Removal, Surrender, and Restoration.
(a) Ownership. Subject to Landlord's right to require their removal and to
cause Tenant to become the owner thereof as hereinafter provided in
this Section 8.4, all Alterations and Utility Installations made to
the Premises by Tenant shall be the property of and owned by Tenant,
but considered a part of the Premises. Landlord may, at any time and
at its option, elect in writing to Tenant to be the owner of all or
any specified part of the Tenant-Owned Alterations and Utility
Installations. Unless otherwise instructed per Section 8.4(b) hereof,
a11 Tenant-Owned Alterations and Utility Installations shall, at the
expiration or earlier termination of this Lease, become the property
of Landlord and remain upon the Premises and be surrendered with the
Premises by Tenant.
(b) Removal. Unless otherwise agreed in writing, Landlord may require that
any or all Tenant-Owned Alterations or Utility Installations be
removed by the expiration or earlier termination of this Lease,
notwithstanding that their installation may have been consented to by
Landlord. Landlord may require the removal at any time of all or any
part of any Alterations or Utility Installations made without the
required consent of Landlord.
(c) Surrender/Restoration. Tenant shall surrender the Premises by the end
of the last day of the Lease term or any earlier termination date,
clean and free of debris and in good operating order, condition and
state of repair, ordinary wear and tear excepted. Ordinary wear and
tear shall not include any damage or deterioration that would have
been prevented by good maintenance practice or by Tenant performing
all of its obligations under this Lease. Except as otherwise agreed or
specified herein, the Premises, as surrendered, shall include the
Alterations and Utility Installations. The obligation of Tenant shall
include the repair of any damage occasioned by the installation,
maintenance or removal of Tenant's Trade Fixtures, furnishings,
equipment, and Tenant-Owned Alterations and Utility Installations, as
well as the removal of any storage tank installed by or for Tenant,
and the removal, replacement, or remediation of any soil, material or
ground water contaminated by Tenant, all as may then be required by
Applicable Requirements and/or good practice. Tenant's Trade Fixtures
shall remain the property of Tenant and shall be removed by Tenant
subject to its obligation to repair and restore the Premises per this
Lease. Any Trade Fixtures, Alterations and/or Utility Installations
not removed upon the expiration of this Lease shall be deemed
abandoned and may be disposed of by Landlord, as Landlord may
determine appropriate, without further notice to Tenant. Tenant shall
pay Landlord all expenses incurred in connection with such items
including, but not limited to, the costs of repairing any damage to
the Premises caused by removal of such items. Tenant's obligation
hereunder shall survive the expiration or other termination of the
Lease.
9. Insurance; Indemnity
9.1 Payment of Premiums. The cost of the premiums for the insurance
policies maintained by Landlord under this Section 9 shall be a Common
Area Operating Expense pursuant to Section 4.2 hereof. Premiums for
policy periods commencing prior to, or extending beyond, the term of
this Lease shall be prorated to coincide with the corresponding
Commencement Date or Expiration Date.
9.2 Liability Insurance.
(a) Carried by Tenant. Tenant shall obtain and keep in force during
the term of this Lease a commercial general liability policy of
insurance protecting Tenant, Landlord and any Lender(s) whose
names have been provided to Tenant in writing (as additional
insured) against claims for bodily injury, personal injury and
property damage based upon, involving or arising out of the
ownership, use, occupancy or maintenance of the Premises and all
areas appurtenant thereto. Such insurance shall be on an
occurrence basis providing single limit coverage in an amount not
less than two million dollars ($2,000,000) per occurrence with an
"Additional Insured-Managers or Landlords of Premises"
endorsement and contain the "Amendment at the Pollution
Exclusion" endorsement for damage caused by heat, smoke or fumes
from a hostile fire. The policy shall not contain any
intra-insured exclusions as between insured persons or
organizations, but shall include coverage for liability assumed
under this Lease as an "insured contract" for the performance of
Tenant's indemnity obligations under this Lease. The limits of
said insurance required by this Lease or as carried by Tenant
shall not, however, limit the liability of Tenant nor relieve
Tenant of any obligation hereunder. All insurance to be carried
by Tenant shall be primary to and not contributory with any
similar insurance carried by Landlord, whose insurance shall be
considered excess insurance only. In addition, Tenant shall
maintain workers' compensation insurance as is required by state
law.
(b) Carried By Landlord. Subject to reimbursement of premiums as
described in Section 9.1, Landlord shall also maintain liability
insurance described in Section 9.2(a) above, in addition to and
not in lieu of, the insurance required to be maintained by
Tenant. Tenant shall not be named as an additional insured
therein.
5
9.3 Property Insurance. Subject to reimbursement of premiums as described
in Section 9.1, Landlord shall maintain property damage insurance on
such portions of the Building Complex from time to time which Landlord
has the obligation to maintain and repair under this Lease, above
foundation walls, insuring against loss or damage by fire or other
casualty covered by a so-called "special form" policy, in such
amounts, and from companies and on such terms and conditions as
Landlord deems appropriate from time to time. Tenant-Owned Alterations
and Utility Installations, Trade Fixtures and Tenant's' personal
property shall be insured by Tenant pursuant to Section 9.4. Landlord
may also obtain and keep in force during the term of this Lease a
policy or policies in the name of Landlord, with loss payable to
Landlord and any Lender(s), insuring the loss of the full rental and
other charges payable by all Tenants of the Building to Landlord for
one year (including all Real Property Taxes, insurance costs, all
Common Area Operating Expenses and any scheduled rental increases).
Tenant shall pay for any increase in the premiums for the property
insurance of the Building and for the Common Areas or other buildings
in the Building Complex if said increase is caused by Tenant's acts,
omissions, use or occupancy of the Premises.
9.4 Tenant's Property Insurance. Subject to the requirements of Section
9.5, Tenant at its cost shall either by separate policy or, at
Landlord's option, by endorsement to a policy already carried,
maintain insurance coverage on all of Tenant's personal property,
Trade Fixtures and Tenant-Owned Alterations and Utility Installations
in, on, or about the Premises similar in coverage to that carried by
Landlord as the Insuring Party under Section 9.3. Such insurance shall
be full replacement cost coverage with a deductible not to exceed
$1,000 per occurrence. The proceeds from any such insurance shall be
used by Tenant for the replacement of personal property and the
restoration of Trade Fixtures and Tenant-Owned Alterations and Utility
Installations. Upon request from Landlord, Tenant shall provide
Landlord with written evidence that such insurance is in force.
Insurance required of Tenant hereunder shall be in companies duly
licensed to transact business in the state where the Premises are
located, and maintaining during the policy term a "General
Policyholders Rating" of at least B+, V, or such other rating as may
be required by a Lender, as set forth in the most current issue of
"Best's Insurance Guide." Tenant shall not do or permit to be done
anything which shall invalidate the insurance policies referred to in
this Section 9. Tenant shall cause to be delivered to Landlord, within
seven (7) days after the earlier of the Delivery Date or the
Commencement Date evidence of the existence and amounts of, the
insurance required under Section 9.2(a) and 9.4. No such policy shall
be cancelable or subject to modification except after thirty (30)
days' prior written notice to Landlord. Tenant shall at least thirty
(30) days prior to the expiration of such policies, furnish Landlord
with evidence of renewals or "insurance binders" evidencing renewal
thereof, or Landlord may order such insurance and charge the cost
thereof to Tenant, which amount shall be payable by Tenant to Landlord
upon demand.
9.5 Waiver. Tenant and Landlord each hereby release and relieve the other,
and waive their entire right to recover damages (whether in contract
or in tort) against the other, for loss or damage to their property or
for any business interruption arising out of or incident to the perils
to the extent such loss or damage or business interruption is
coverable by a standard or special form policy regardless of whether
such insurance is carried or not, or if so carried, payable to or
protects Landlord or Tenant or both. The effect of such releases and
waivers of the right to recover damages shall not be limited by the
amount of insurance carried or required, or by any deductibles
applicable thereto. Landlord and Tenant agree to have their respective
insurance companies issuing property damage insurance waive any right
to subrogation that such companies may have against Landlord or
Tenant, as the case may be, so long as the insurance is not
invalidated thereby.
9.6 Indemnity. Except for Landlord's willful misconduct, Tenant shall
indemnify, protect, defend and hold harmless the Premises, Landlord
and its agents, employees, Landlord's master or ground Landlord,
members, partners and Lenders, from and against any and all claims,
loss of rents and/or damages, costs, liens, judgments, penalties, loss
of permits, attorneys' and consultants' fees, expenses and/or
liabilities arising out of, involving, or in connection with, the
occupancy of the Premises by Tenant, the conduct of Tenant's business,
any act, omission or neglect of Tenant, its agents, contractors,
employees or invitees, and out of any Default or Breach by Tenant in
the performance in a timely manner of any obligation on Tenant's part
to be performed under this Lease. The foregoing shall include, but not
be limited to, the defense or pursuit of any claim or any action or
proceeding involved therein, and whether or not (in the case of claims
made against Landlord) litigated and/or reduced to judgment. In case
any action or proceeding be brought against Landlord by reason of any
of the foregoing matters, Tenant upon notice from Landlord shall
defend the same at Tenant's expense by counsel reasonably satisfactory
to Landlord and Landlord shall cooperate with Tenant in such defense.
Landlord need not have first paid any such claim in order to be so
indemnified. The provisions of this Section shall survive the
expiration or termination of this Lease.
9.7 Exemption of Landlord from Liability. Landlord shall not be liable for
injury or damage to the person or goods, wares, merchandise or other
property of Tenant, Tenant's employees, contractors, invitees,
customers, or any other person in or about the Premises, whether such
damage or injury is caused by or results from fire, steam,
electricity, gas, water or rain or from the breakage, leakage,
obstruction or other defects of pipes, fire sprinklers, wires,
appliances, plumbing, air conditioning or lighting fixtures, or from
any other cause, whether said injury or damage results from conditions
arising upon the Premises or upon other portions of the Building of
which the Premises are a part, from other sources or places, and
regardless of whether the cause of such damage or injury or the means
of repairing the same is accessible or not. Landlord shall not be
liable for any damages arising from any act or neglect of any other
Tenant of Landlord nor from the failure by Landlord to enforce the
provisions of any other lease in the Building Complex. Notwithstanding
Landlord's negligence or breach of this Lease, Landlord shall under no
circumstances be liable for injury to Tenant's business or for any
loss of income or profit therefrom, or for any consequential damages
of Tenant. Notwithstanding anything to the contrary contained herein,
Landlord's liability under this Lease shall be limited to its interest
in the Building Complex.
10. Damage or Destruction.
10.1 Total Damage. If the Premises or the Building shall be so damaged by
fire or other casualty as to render the Premises wholly untenantable
and if such damage shall be so great that a competent architect, in
good standing, selected by Landlord shall certify in writing to
Landlord and Tenant within ninety (90) days of said casualty that the
Premises, with the exercise of reasonable diligence, cannot be made
fit for occupancy within one hundred eighty (180) working days from
the happening thereof, then this Lease shall cease and terminate from
the date of the occurrence of such damage and Tenant shall thereupon
surrender to Landlord the Premises and all interest therein hereunder
and Landlord may reenter and take possession of the Premises and
remove Tenant therefrom. Tenant shall pay rent, duly apportioned, up
to the time of such termination of this Lease. If, however, the damage
shall be such that said architect shall certify within said ninety
(90) day period that the Premises can be made tenantable within said
one hundred eighty (180) day period, then, except as hereinafter
provided, Landlord shall repair the damage so done (to the extent of
the Building Standard tenant finish allowance then provided by
Landlord to tenants in the Building) with all reasonable speed.
10.2 Partial Damage. If the Premises shall be slightly damaged by fire or
other casualty, but not so as to render the same wholly untenantable
or to require a repair period in excess of one hundred eighty (180)
days, then, Landlord, after receiving notice in writing of the
occurrence of the casualty, except as hereafter provided, shall cause
the same to be repaired to the extent of the base tenant finish per
the then-current standard allowance provided by Landlord to tenants in
the Building with reasonable promptness. If the estimated repair
period as established in accordance with the provisions of
subparagraph 10.1 above exceeds one hundred eighty (180) days, then
the provisions of subparagraph 10.1 shall control notwithstanding the
fact that the Premises are not wholly untenantable.
10.3 Building Damage. In case the Building throughout shall be so injured
or damaged, whether by fire or otherwise (though said Premises may not
be affected, or if affected, can be repaired within said one hundred
eighty (180) days), that, within ninety (90) days after the happening
of such injury, Landlord shall decide not to reconstruct or rebuild
said Building, then, notwithstanding anything contained herein to the
contrary, upon notice in writing to that effect given by Landlord to
Tenant within said ninety (90) days, Tenant shall pay the rent,
properly apportioned up to such date, this Lease shall terminate from
the date of delivery of said written notice, and both parties hereto
shall be freed and discharged of all further obligations hereunder.
10.4 Rent Abatement. Provided that the casualty is not the fault of Tenant,
Tenant's agents, servants, or employees. Tenant's
6
rent shall xxxxx during any such period of Landlord's repair and
restoration, but only to the extent of any recovery by Landlord under
its rental insurance related to the Premises in the same proportion
that the part of the Premises rendered untenantable bears to the
whole.
10.5 Tenant's Obligation. In the event the Lease is not terminated, Tenant
shall, at its expense, replace or fully repair Tenant's personal
property and Alterations and/or Utility Installations installed by
Tenant in the Premises existing on the date of the occurrence of the
casualty and Tenant shall fully cooperate with Landlord in removing
Tenant's personal property and any debris from the Premises to
facilitate making of repairs.
11. Real Property Taxes.
11.1 Payment of Taxes. Landlord shall pay the Real Property Taxes, as
defined in Section 11.2, applicable to the Building Complex, and
except as otherwise provided in Section 11.3, any such amounts shall
be included in the calculation of Common Area Operating Expenses in
accordance with the provisions of Section 4.2.
11.2 Real Property Tax Definition. As used herein, the term "Real Property
Taxes" shall include any form of real estate tax or assessment,
general, special, ordinary or extraordinary, and any license fee,
commercial rental tax, improvement bond or bonds, levy or tax (other
than inheritance, personal income or estate taxes) imposed upon the
Building Complex by any authority having the direct or indirect power
to tax, including any city, state or federal government, or any
school, agricultural, sanitary, fire, street, drainage, or other
improvement district thereof, levied against any legal or equitable
interest of Landlord in the Building Complex or any portion thereof,
Landlord's right to rent or other income therefrom, and/or Landlord's
business of leasing the Premises. The term "Real Property Taxes" shall
also include any tax, fee, levy, assessment or charge, or any increase
therein, imposed by reason of events occurring, or changes in
Applicable Law taking effect, during the term of this Lease, including
but not limited to a change in the ownership of the Building Complex
or in the improvements thereon, the execution of this Lease, or any
modification, amendment or transfer thereof, and whether or not
contemplated by the Parties, and any reasonable expenses incurred by
Landlord in contesting such taxes or assessment of the Building
Complex. In calculating Real Property Taxes for any calendar year, the
Real Property Taxes for any real estate tax year shall be included in
the calculation of Real Property Taxes for such calendar year based
upon the number of days which such calendar year and tax year have in
common.
11.3 Additional Improvements. Common Area Operating Expenses shall not
include Real Property Taxes specified in the tax assessor's records
and work sheets as being caused by additional improvements placed upon
the Building Complex by other tenants or by Landlord for the exclusive
enjoyment of such other tenants. Notwithstanding Section 11.1 hereof,
Tenant shall, however, pay to Landlord at the time Common Area
Operating Expenses are payable under Section 4.2, the entirety of any
increase in Real Property Taxes if assessed solely by reason of
Alterations, Trade Fixtures or Utility Installations placed upon the
Premises by Tenant or at Tenant's request.
11.4 Joint Assessment. If the Building is not separately assessed, Real
Property Taxes allocated to the Building shall be an equitable
proportion of the Real Property Taxes for all of the land and
improvements included within the tax parcel assessed, such proportion
to be determined by Landlord from the respective valuations assigned
in the assessor's work sheets or such other information as may be
reasonably available. Landlord's reasonable determination thereof, in
good faith, shall be conclusive.
11.5 Tenant's Taxes. Tenant shall pay prior to delinquency all taxes
assessed against and levied upon Tenant-Owned Alterations and Utility
Installations, Trade Fixtures, furnishings, equipment and all personal
property of Tenant contained in the Premises or stored within the
Building Complex. When possible, Tenant shall cause its Tenant-Owned
Alterations and Utility Installations, Trade Fixtures, furnishings,
equipment and all other personal property to be assessed and billed
separately from the real property of Landlord. If any of Tenant's said
property shall be assessed with Landlord's real property, Tenant shall
pay Landlord the taxes attributable to Tenant's property within ten
(10) days after receipt of a written statement setting forth the taxes
applicable to Tenant's property. In addition, Tenant shall pay all
taxes, including, without limitation, workers' compensation, general
license or franchise taxes and rent taxes, if any, which may be
required for the conduct of Tenant's business.
12. Utilities. Tenant shall pay directly for all utilities and services
supplied to the Premises, including but not limited to electricity,
telephone, security, gas and cleaning of the Premises, together with any
taxes thereon. If any such utilities or services are not separately metered
to the Premises or separately billed to the Premises, Tenant shall pay to
Landlord a reasonable proportion to be determined by Landlord of all such
charges jointly metered or billed with other premises in the Building, in
the manner and within the time periods set forth in Section 4.2(d). In
addition, Tenant shall reimburse Landlord for the reasonable costs incurred
by Landlord in providing services which are shared by more than one tenant
after ordinary business hours, including, without limitation, the costs for
materials, additional wear and tear on equipment, utility charges and labor
(including fringe benefits and overhead costs). Computation for Landlord's
costs for providing such services will be made by Landlord's engineer,
based on such engineer's survey of Tenant's excess usage.
13. Assignment and Subletting.
13.1 Landlord's Consent Required.
(a) Tenant shall not voluntarily or by operation of law assign,
transfer, mortgage or otherwise transfer or encumber
(collectively, "assign") or sublet a11 or any part of Tenant's
interest in this Lease or in the Premises without Landlord's
prior written consent, which consent will not unreasonably be
withheld provided that (i) Tenant has complied with the
provisions of this subparagraph and Landlord has declined to
exercise its rights thereunder; (ii) the proposed subtenant or
assignee is engaged in a business in the Premises which will be
used in a manner which is in keeping with the then standards of
the Building Complex and does not conflict with any exclusive use
rights granted to any other tenant; (iii) the proposed subtenant
or assignee has reasonable financial worth in light of the
responsibilities involved and Tenant shall have provided Landlord
with reasonable evidence thereof; (iv) Tenant is not in default
hereunder at the time it makes its request for such consent; (v)
the proposed subtenant or assignee is not a governmental or
quasi-governmental agency; (vi) the proposed subtenant or
assignee is not a tenant under or is not currently negotiating a
lease with Landlord in any building owned by Landlord in the
Denver metropolitan area (including in the Building Complex); or
(vii) the rent under such sublease or assignment is not less than
the rent to be paid by Tenant for such space under the Lease and
is not less than eighty-five percent (85%) of the rental rate
then being offered by Landlord for similar space in the Building
Complex. Notwithstanding anything contained in Section 13 to the
contrary, in the event Tenant requests Landlord's consent to
sublet all or a portion of the Premises or to assign its interest
in this Lease, Landlord shall have the right to (x) consent to
such sublease or assignment in its reasonable discretion as
described in the preceding sentences; (y) refuse to grant such
consent in Landlord's reasonable discretion based upon the
criteria described above; or (z) refuse to grant such consent and
terminate this Lease as to the portion of the Premises with
respect to which such consent was requested; provided, however,
if Landlord refuses to grant such consent and elects to terminate
the Lease as to such portion of the Premises, Tenant shall have
the right within fifteen (15) days after Landlord's exercise of
its right to terminate to withdraw Tenant's request for such
consent and remain in possession of the Premises under the terms
and conditions hereof. In the event the Lease is terminated as
set forth herein, such termination shall be effective as of the
date set forth in a written notice from Landlord to Tenant, which
date shall in no event be more than thirty (30) days following
such notice. Tenant hereby agrees that in the event it desires to
sublease all or any portion of the Premises or assign this Lease
to any party, in whole or in part, Tenant shall notify Landlord
not less than sixty (60) days prior to the date Tenant desires to
sublease such portion of the Premises or assign this Lease
("Tenant's Notice"). Tenant's Notice shall set forth a
description of the Premises to be so sublet or assigned and the
terms and conditions on which Tenant desires to sublet the
Premises or assign this Lease. Landlord shall have forty-five
(45) days following receipt of Tenant's Notice to exercise
Landlord's rights pursuant to (x), (y) and (z) above. If Landlord
consents to such sublease or assignment, and if for any reason
Tenant is unable to sublet said portion of the Premises or assign
the applicable portion of its interest in this Lease on the terms
and conditions contained in Tenant's Notice within one hundred
and twenty (120) days following its original notice to Landlord,
Tenant agrees to re-offer the Premises to Landlord in accordance
with the provisions hereof prior to subleasing or assigning the
same to any third party.
(b) A change in the control of Tenant shall constitute an assignment
requiring Landlord's consent. The transfer, on a cumulative
basis, of twenty-five percent (25%) or more of the voting control
of Tenant, shall constitute a change in control for this purpose.
7
(c) The involvement of Tenant or its assets in any transaction or
series of transactions (by way of merger, sale, acquisition,
financing, refinancing, transfer, leveraged buy-out or
otherwise), whether or not a formal assignment or hypothecation
of this Lease or Tenant's assets occurs, which results or will
result in a reduction of the Net Worth of Tenant, as hereinafter
defined, by an amount equal to or greater than twenty-five
percent (25%) of such Net Worth of Tenant as it was represented
to Landlord at the time of full execution and delivery of this
Lease, or at the time of the most recent assignment to which
Landlord has consented, or as it exists immediately prior to said
transaction or transactions constituting such reduction, at
whichever time said Net Worth of Tenant was or is greater, shall
be considered an assignment of this Lease by Tenant to which
Landlord may reasonably withhold its consent. "Net Worth of
Tenant" for purposes of this Lease shall be the net worth of
Tenant (excluding any Guarantors) established under generally
accepted accounting principles consistently applied.
(d) An assignment or subletting of Tenant's interest in this Lease
without Landlord's specific prior written consent shall, at
Landlord's option, be a Default curable after notice per Section
13.1, or a non-curable Default without the necessity of any
notice and grace period. If Landlord elects to treat such
unconsented assignment or subletting as a non-curable Default,
Landlord shall have the right to either: (i)terminate this Lease,
or (ii) upon thirty (30) days written notice ("Landlord's
Notice"), increase the monthly Base Rent for the Premises to the
greater of the then fair market rental value of the Premises, as
reasonably determined by Landlord, or one hundred ten percent
(110%) of the Base Rent then in effect. Pending determination of
the new fair market rental value, if disputed by Tenant, Tenant
shall pay the amount set forth in Landlord's Notice, with any
overpayment credited against the next installment(s) of Base Rent
coming due, and any underpayment for the period retroactively to
the effective date of the adjustment being due and payable
immediately upon the determination thereof. Further, in the event
of such Default and rental adjustment, (i) the purchase price of
any option to purchase the Premises held by Tenant shall be
subject to similar adjustment to the then fair market value as
reasonably determined by Landlord (without the Lease being
considered an encumbrance or any deduction for depreciation or
obsolescence, and considering the Premises at its highest and
best use and in good condition) or one hundred ten percent (110%)
of the price previously in effect; (ii) any index-oriented rental
or price adjustment formulas contained in this Lease shall be
adjusted to require that the base index be determined with
reference to the index applicable to the time of such adjustment;
and (iii) any fixed rental adjustments scheduled during the
remainder of the Lease term shall be increased in the same ratio
as the new rental bears to the Base Rent in effect immediately
prior to the adjustment specified in Landlord's Notice.
(e) Tenant's remedy for any breach of this Section 13.1 by Landlord
shall be limited to compensatory damages and/or injunctive
relief.
13.2 Terms and Conditions Applicable to Assignment and Subletting.
(a) Regardless of Landlord's consent any assignment or subletting
shall not (i) be effective without the express written assumption
by such assignee or subtenant of the obligations of Tenant under
this Lease; (ii) release Tenant of any obligations hereunder; nor
(iii) alter the primary liability of Tenant for the payment of
Base Rent and other sums due Landlord hereunder or for the
performance of any other obligations to be performed by Tenant
under this Lease.
(b) Landlord may accept any rent or performance of Tenant's
obligations from any person other than Tenant pending approval or
disapproval of an assignment. Neither a delay in the approval or
disapproval of such assignment nor the acceptance of any rent for
performance shall constitute a waiver or estoppel of Landlord's
right to exercise its remedies for the Default or breach by
Tenant of any of the terms, covenants or conditions of this
Lease.
(c) The consent of Landlord to any assignment or subletting shall not
constitute a consent to any subsequent assignment or subletting
by Tenant or to any subsequent or successive assignment or
subletting by the assignee or subtenant. However Landlord may
consent to subsequent sublettings and assignments of the sublease
or any amendments or modifications thereto without notifying
Tenant or anyone else liable under this Lease or the sublease and
without obtaining their consent, and such action shall not
relieve such persons from liability under this Lease or the
sublease.
(d) In the event of any Default of Tenant's obligations under this
Lease, Landlord may proceed directly against Tenant, any
Guarantors or anyone else responsible for the performance of the
Tenant's obligations under this Lease, including any subtenant,
without first exhausting Landlord's remedies against any other
person or entity responsible therefor to Landlord, or any
security held by Landlord.
(e) Each request for consent to an assignment or subletting shall be
in writing, accompanied by information relevant to Landlord's
determination as to the financial and operational responsibility
and appropriateness of the proposed assignee or subtenant,
including but not limited to the intended use and/or required
modification of the Premises, if any, together with a
non-refundable deposit of one thousand dollars ($1,000.00) or ten
percent (10%) of the monthly Base Rent applicable to the portion
of the Premises which is the subject of the proposed assignment
or sublease, whichever is greater, as reasonable consideration
for Landlord's considering and processing the request for
consent. Tenant agrees to provide Landlord with such other or
additional information and/or documentation as may be reasonably
requested by Landlord.
(f) Any assignee of, or subtenant under this Lease shall, by reason
of accepting such assignment or entering into such sublease, be
deemed for the benefit of Landlord, to have assumed and agreed to
conform and comply with each and every term, covenant, condition
and obligation herein to be observed or performed by Tenant
during the term of said assignment or sublease, other than such
obligations as are contrary to or inconsistent with provisions of
an assignment or sublease to which Landlord has specifically
consented in writing.
(g) The occurrence of a transaction described in Section 13.2(c)
shall give Landlord the right (but not the obligation) to require
that the Security Deposit be increased by an amount equal to six
(6) times the then monthly Base Rent, and Landlord may make the
actual receipt by Landlord of the Security Deposit increase a
condition to Landlord's consent to such transaction.
(h) Landlord, as a condition to giving its consent to any assignment
or subletting, may require that the amount and adjustment
schedule of the rent payable under this Lease be adjusted to what
is then the market value and/or adjustment schedule for property
similar to the Premises as then constituted, as determined by
Landlord.
(i) If Tenant collects any rental or other amounts from a subtenant
or assignee in excess of the Base Rent and Tenant's Share of
Common Area Operating Expenses, Tenant shall pay the Landlord, as
and when Tenant receives the same, all such excess amounts
received by Tenant less any improvements, brokers' fees,
advertising expenses or other concessions to the extent all of
the above are actually paid for by Tenant in the procurement of a
subtenant or assignee.
13.3 Additional Terms and Conditions Applicable to Subletting. The
following terms and conditions shall apply to any subletting by Tenant
of all or any part of the Premises and shall be deemed included in all
subleases under this Lease whether or not expressly incorporated
therein:
(a) Tenant hereby assigns and transfers to Landlord all of Tenant's
interest in all rentals and income arising from any sublease of
all or a portion of the Premises heretofore or hereafter made by
Tenant, and Landlord may collect such rent and income and apply
same toward Tenant's obligations under the Lease; provided,
however, that until a Default (as defined in Section 14.1) shall
occur in the performance of Tenant's obligations under this
Lease, Tenant may, except as otherwise may be provided in this
Lease, receive, collect and enjoy the rents accruing under such
sublease. Landlord shall not, by reason of the foregoing
provision except as otherwise provided in this Lease,
8
receive, collect and enjoy the rents accruing under such
sublease. Landlord shall not, by reason of the foregoing
provision or any other assignment of such sublease to Landlord,
nor by reason of the collection of the rents from a subtenant, be
deemed liable to the subtenant for any failure of Tenant to
perform and comply with any of Tenant's obligations to such
sublease under such Sublease. Tenant hereby irrevocably
authorizes and directs any such sublease, upon receipt of a
written notice from Landlord stating that a Default exists in the
performance of Tenant's obligations under this Lease to pay to
Landlord the rents and other charges due and to become due under
the sublease. Subtenant shall rely upon any such statement and
request from Landlord and shall pay such rents and other charges
to Landlord without any obligation or right to inquire as to
whether such Default exists and notwithstanding any notice from
or claim from Tenant to the contrary, Tenant shall have no right
or claim against such subtenant, or, until the Default has been
cured, against Landlord, for any such rents and other charges so
paid by said subtenant to Landlord.
(b) In the event of a Default by Tenant in the performances of its
obligations under this Lease, Landlord, at its option and without
any obligation to do so, may require any subtenant to attorn to
Landlord, in which event Landlord shall undertake the obligations
of the sublandlord under such sublease from the time of the
exercise of said option to the expiration of such subleases;
provided, however, Landlord shall not be liable for any prepaid
rents or security deposit paid by such subtenant to such
sublandlord or for any other prior defaults or breaches of such
sublandlord under such sublease.
(c) Any matter or thing requiring the consent of the sublandlord
under a sublease shall also require the consent of Landlord
herein.
(d) No subtenant under a sublease approved by Landlord shall further
assign or sublet all or any part of the Premises without
Landlord's prior written consent, which may be granted or denied
in Landlord's sole discretion.
14. Default; Remedies.
14.1 Default. A "Default" or "Event of Default" by Tenant is defined as a
failure by Tenant to observe, comply with or perform any of the terms,
covenants, conditions or rules applicable to Tenant under this Lease.
Each one of the following shall be an event of default:
(a) The vacating of the Premises without the intention to reoccupy
same, or the abandonment of the Premises.
(b) Except as expressly otherwise provided in this Lease, the failure
by Tenant to make any payment of Base Rent, Tenant's Share of
Common Area Operating Expenses, or any other monetary payment
required to be made by Tenant hereunder as and when due, the
failure by Tenant to provide Landlord with reasonable evidence of
insurance or surety bond required under this Lease, or the
failure of Tenant to fulfill any obligation under this Lease
which endangers or threatens life or property, where such failure
continues for a period of three (3)days following written notice
thereof by or on behalf of Landlord to Tenant.
(c) Except as expressly otherwise provided in this Lease, the failure
by Tenant to provide Landlord with reasonable written evidence
(in duly executed original form, if applicable) of (i) compliance
with Applicable Requirements per Section 7.4; (ii) the
inspection, maintenance and service contracts required by Section
8.l(b); (iii) the rescission of an unauthorized assignment or
subletting per Section 13; (v) a Tenancy Statement per Sections
17 or 37; (vi) the subordination or non-subordination of this
Lease per Section 31; (vi) the guaranty of the performance of
Tenant's obligations under this Lease if required under Sections
1.12 and 37; (vii) the execution of any document requested under
Section 41 (easements); or (viii) any other documentation or
information which Landlord may reasonably require of Tenant under
the terms of this Lease, where any such failure continues for a
period of ten (10) days following written notice by or on behalf
of Landlord to Tenant.
(d) A Default by Tenant as to the terms, covenants, conditions or
provisions of this Lease, or of the rules adopted under Section
39 hereof that are to be observed, complied with or performed by
Tenant, other than those described in Subparagraphs 14.l(a), (b)
or (c) above, where such Default continues for a period of thirty
(30) days after written notice thereof by or on behalf of
Landlord to Tenant; provided, however, that if the nature of
Tenant's Default is such that more than thirty (30) days are
reasonably required for its cure, then it shall not be deemed to
be a Breach of this Lease by Tenant if Tenant commences such cure
within said thirty (30) day period and thereafter diligently
prosecutes such cure to completion.
(e) The occurrence of any of the following events: (i) the making by
Tenant of any general arrangement or assignment for the benefit
of creditors; (ii) Tenant's becoming a "debtor" as defined in 11
U.S. Code Section 101 or any successor statute thereto (unless,
in the case of a petition filed against Tenant, the same is
dismissed within sixty (60) days); (iii) the appointment of a
trustee or receiver to take possession of substantially all of
Tenant's assets located at the Premises or of Tenant's interest
in this Lease, where possession is not restored to Tenant within
thirty (30) days; or (iv) the attachment, execution or other
judicial seizure of substantially all of Tenant's assets located
at the Premises or of Tenant's interest in this Lease, where such
seizure is not discharged within thirty (30) days; provided,
however, in the event that any provision of this subparagraph
14.1(e) is contrary to any applicable law, such provision shall
be of no force or effect, and shall not affect the validity of
the remaining provisions.
(f) The discovery by Landlord that any financial statement of Tenant
or of any Guarantor, given to Landlord by Tenant or any
Guarantor, was materially false.
(g) If the performance of Tenant's obligations under this Lease is
guaranteed: (i) the death of a Guarantor; (ii) the termination of
a Guarantor's liability with respect to the Lease other than in
accordance with the terms of such guaranty; (iii) a Guarantor's
becoming insolvent or the subject of a bankruptcy filing; (iv) a
Guarantor's refusal to honor the guaranty; or (v) a Guarantor's
breach of its guaranty obligation on an anticipatory breach
basis, and Tenant's failure within sixty (60) days following
written notice by or on behalf of Landlord to Tenant of any such
event, to provide Landlord with written alternative assurances of
security, which, when coupled with the then existing resources of
Tenant, equals or exceeds the combined financial resources of
Tenant and the Guarantors that existed at the time of execution
of this Lease.
14.2 Remedies
(a) If any one or more Event of Default shall happen, then Landlord
shall have the right at Landlord's election, then or at any time
thereafter either:
(l)(a) Without demand or notice, to reenter and take possession
of the Premises or any part thereof and repossess the same
as of Landlord's former estate and expel Tenant and those
claiming possession through or under Tenant and remove the
effects of both or either, without being deemed guilty of
any manner of trespass and without prejudice to any remedies
for arrears of rent or preceding breach of covenants or
conditions. Should Landlord elect to reenter; as provided in
this subparagraph (1), or should Landlord take possession
pursuant to legal proceedings or pursuant to any notice
provided for by law, Landlord may, from time to time,
without terminating this Lease, relet the Premises or any
part thereof, either alone or in conjunction with other
portions of the Building of which the Premises are a part,
in Landlord's or Tenant's name but for the account of
Tenant, 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 Lease) and on such conditions
and upon such other terms (which may include concessions of
free rent and alteration and repair of the Premises) as
Landlord, in its absolute discretion, may determine and
Landlord may collect and receive the rents therefor.
Landlord shall in no way be responsible or liable for any
failure to relet the Premises, or any part thereof, or for
any failure to collect any rent due upon such reletting;
provided, however, Landlord shall use reasonable efforts to
relet the Premises. No such reentry or taking possession of
the Premises by Landlord shall be construed as an election
on Landlord's part to terminate this Lease unless a written
notice of such intention be given to Tenant. No notice from
Landlord hereunder or under a forcible entry and detainer
statute or similar
9
law shall constitute an election by Landlord to terminate
this Lease unless such notice specifically so states.
Landlord reserves the right following any such reentry
and/or reletting to exercise its right to terminate this
Lease by giving Tenant such written notice, in which event
the Lease will terminate as specified in said notice.
(1)(b) If Landlord elects to take possession of the Premises as
provided in this subparagraph (1) without terminating the
Lease, Tenant shall pay to Landlord (i) the rent and other
sums as herein provided, which would be payable hereunder if
such repossession had not occurred, less (ii) the net
proceeds, if any, of any reletting of the Premises after
deducting all of Landlord's expenses incurred in connection
with such reletting, including, but without limitation, all
repossession costs, brokerage commissions, legal expenses,
attorneys' fees, expenses of employees, alteration,
remodeling, and repair costs and expenses of preparation for
such reletting. If, in connection with any reletting, the
new lease term extends beyond the existing term or the
premises covered thereby include other premises not part of
the Premises, a fair apportionment of the rent received from
such reletting and the expenses incurred in connection
therewith, as provided aforesaid, will be made in
determining the net proceeds received from such reletting.
In addition, in determining the net proceeds from such
reletting, any rent concessions will be apportioned over the
term of the new lease. Tenant shall pay such amounts to
Landlord monthly on the days on which the rent and all other
amounts owing hereunder would have been payable if
possession had not been retaken and Landlord shall be
entitled to receive the same from Tenant on each such day;
or
(2)(a) To give Tenant written notice of intention to terminate
this Lease on the date of such given notice or on any later
date specified therein and, on the date specified in such
notice, Tenant's right to possession of the Premises shall
cease and the Lease shall thereupon be terminated, except as
to Tenant's liability hereunder as hereinafter provided, as
if the expiration of the term fixed in such notice were the
end of the term herein originally demised. In the event this
Lease is terminated pursuant to the provisions of this
subparagraph (2), Lessee shall remain liable to Landlord for
damages in an amount equal to the rent and other sums which
would have been owing by Tenant hereunder for the balance of
the term had this Lease not been terminated less the net
proceeds, if any, of any reletting of the Premises by
Landlord subsequent to such termination, after deducting all
Landlord's expenses in connection with such reletting,
including, but without limitation, the expenses enumerated
above. Landlord shall be entitled to collect such damages
from Tenant monthly on the days on which the rent and other
amounts would have been payable hereunder if this Lease had
not been terminated and Landlord shall be entitled to
receive the same from Tenant on each such day.
Alternatively, at the option of Landlord, in the event this
Lease is terminated, Landlord shall be entitled to recover
forthwith against Tenant as damages for loss of the bargain
and not as a penalty an amount equal to the worth at the
time of termination of the excess, if any, of the amount of
rent reserved in this Lease for the balance of the term
hereof over the then Reasonable Rental Value of the Premises
for the same period plus all amounts incurred by Landlord in
order to obtain possession of the Premises and relet the
same, including attorneys' fees, reletting expenses,
alterations and repair costs, brokerage commissions and all
other like amounts. It is agreed that the "Reasonable Rental
Value" shall be the amount of rental which Landlord can
obtain as rent for the remaining balance of the term.
(b) Suit or suits for the recovery of the rents and other amounts and
damages set forth hereinabove may be brought by Landlord, from
time to time, at Landlord's election, and nothing herein shall be
deemed to require Landlord to await the date whereon this Lease
or the term hereof would have expired had there been no such
default by Tenant or no such termination, as the case may be.
Each right and remedy provided for in this Lease shall be
cumulative and shall be in addition to every other right or
remedy provided for in this Lease or now or hereafter existing at
law or in equity or by statute or otherwise, including, but not
limited to, suits for injunctive relief and specific performance.
The exercise or beginning of the exercise by Landlord of any one
or more of the rights or remedies provided for in this Lease or
now or hereafter existing at law or in equity or by statute or
otherwise shall not preclude the simultaneous or later exercise
by Landlord of any or all other rights or remedies provided for
in this Lease or now or hereafter existing at law or in equity or
by statute or otherwise. All such rights and remedies shall be
considered cumulative and non-exclusive. All costs incurred by
Landlord in connection with collecting any rent or other amount
and damages owing by Tenant pursuant to the provisions of this
Lease, or to enforce any provision of this Lease, shall also be
recoverable by Landlord from Tenant. Further, if an action is
brought pursuant to the terms and provisions of the Lease, the
prevailing party in such action shall be entitled to recover from
the other party any and all reasonable attorneys' fees incurred
by such prevailing party in connection with such action.
(c) No failure by Landlord to insist upon the strict performance of
any agreement, term, covenant or condition hereof or to exercise
any right or remedy consequent upon a Default thereof and no
acceptance of full or partial rent during the continuance of any
such Default shall constitute a waiver of any such Default or of
such agreement, term, covenant, or condition. No agreement, term,
covenant, or condition hereof to be performed or complied with by
Tenant and no Default thereof shall be waived, altered, or
modified, except by written instrument executed by Landlord. No
waiver of any Default shall affect or alter this Lease but each
and every agreement, term, covenant, and condition hereof shall
continue in full force and effect with respect to any other then
existing or subsequent Default thereof. Notwithstanding any
termination of this Lease, the same shall continue in force and
effect as to any provisions which require observance or
performance by Landlord or Tenant subsequent to such termination.
(d) Nothing contained in this Section 14 shall limit or prejudice the
right of Landlord to prove and obtain as liquidated damages in
any bankruptcy, insolvency, receivership, reorganization, or
dissolution proceeding an amount equal to the maximum allowed by
any statute or rule of law governing such a proceeding and in
effect at the time when such damages are to be proved, whether or
not such amount be greater, equal to, or less than the amounts
recoverable, either as damages or rent, referred to in any of the
preceding provisions of this Section. Notwithstanding anything
contained in this Section to the contrary, any such proceeding or
action involving bankruptcy, insolvency, reorganization,
arrangement, assignment for the benefit of creditors, or
appointment of a receiver or trustee, as set forth above, shall
be considered to be an Event of Default only when such
proceeding, action, or remedy shall be taken or brought by or
against the then holder of the leasehold estate under this
Lease."
(e) Pursue any other remedy now or hereafter available to Landlord
under the laws or judicial decisions of the state wherein the
Premises are located.
(f) The expiration or termination of this Lease and/or the
termination of Tenant's right to possession shall not relieve
Tenant from liability under any indemnity provisions of this
Lease as to matters occurring or accruing during the term hereof
or by reason of Tenant's occupancy of the Premises.
14.3 Inducement Recapture in Event of Default. Any agreement by Landlord
for free or abated rent or other charges applicable to the Premises,
or for the giving or paying by Landlord to or for Tenant of any cash
or other bonus, inducement or consideration for Tenant's entering into
this Lease, all of which concessions are hereinafter referred to as
"Inducement Provisions" shall be deemed conditioned upon Tenant's full
and faithful performance of all of the terms, covenants and conditions
of this Lease to be performed or observed by Tenant during the term
hereof as the same may be extended upon the occurrence of a Default
(as defined in Section 14.1) of this Lease by Tenant, any such
Inducement Provision shall automatically be deemed deleted from this
Lease and of no further force or effect, and any rent, other charge,
bonus, inducement or consideration theretofore abated, given or paid
by Landlord under such an Inducement Provision shall be immediately
due and payable by Tenant to Landlord, and recoverable by Landlord, as
additional rent due under this Lease, notwithstanding any subsequent
cure of said Default by Tenant. The acceptance by Landlord of rent or
the cure of the Default which initiated the operation of this Section
14.3 shall not be deemed a waiver by Landlord of the provisions of
this Section 14.3 unless specifically so stated in writing by Landlord
at the time of such acceptance.
14.4 Late Charges. Tenant hereby acknowledges that late payment by Tenant
to Landlord of rent and other sums due hereunder will cause Landlord
to incur costs not contemplated by this Lease, the exact amount of
which will be extremely difficult to ascertain. Such costs include,
but are not limited to, processing and accounting charges, and late
charges which may be imposed upon Landlord by the terms of any ground
lease, mortgage or deed of trust covering the Premises. Accordingly,
if any installment of rent or other sum due from Tenant
10
shall not be received by Landlord or Landlord's designee within five
(5) days after such amount shall be due, then, without any requirement
for notice to Tenant. Tenant shall pay to Landlord a late charge equal
to five percent (5%) of such overdue amount. The parties hereby agree
that such late charge represents a fair and reasonable estimate of the
costs Landlord will incur by reason of late payment by Tenant.
Acceptance of such late charge by Landlord shall in no event
constitute a waiver of Tenant's Default with respect to such overdue
amount, nor prevent Landlord from exercising any of the other rights
and remedies granted hereunder. In the event that a late charge is
payable hereunder, whether or not collected for three (3) consecutive
installments of Base Rent, then notwithstanding Section 4.1 or any
other provision of this Lease to the contrary, Base Rent shall, at
Landlord's option, become due and payable quarterly in advance.
14.5 Default by Landlord. Landlord shall not be deemed in default of this
Lease unless Landlord fails within a reasonable time to perform an
obligation required to be performed by Landlord. For purposes of this
Section 14.5, a reasonable time shall in no event be less than thirty
(30) days after receipt by Landlord, and by any Lender(s) whose name
and address shall have been furnished to Tenant in writing for such
purpose, of written notice specifying wherein such obligation of
Landlord has not been performed: provided, however, that if the nature
of Landlord's obligation is such that more than thirty (30) days after
such notice are reasonably required for its performance, then Landlord
shall not be in breach of this Lease if performance is commenced
within such thirty (30)day period and thereafter diligently pursued to
completion.
15. Condemnation. If the Premises or any portion thereof are taken under the
power of eminent domain or sold under the threat of the exercise of said
power (all of which are herein called "condemnation"), this Lease shall
terminate as to the part so taken as of the date the condemning authority
takes title or possession whichever first occurs. If more than ten percent
(10%) of the floor area of the Premises or more than twenty-five percent
(25%) of the portion of the Common Areas designated for Tenant's parking is
taken by condemnation, Tenant may, at Tenant's option, to be exercised in
writing within ten (10) days after Landlord shall have given Tenant written
notice of such taking (or in the absence of such notice, within ten (10)
days after the condemning authority shall have taken possession) terminate
this Lease as of the date the condemning authority takes such possession.
If Tenant does not terminate this Lease in accordance with the foregoing,
this Lease shall remain in full force and effect as to the portion of the
Premises remaining, except that the Base Rent shall be reduced in the same
proportion as the rentable floor area of the Premises taken bears to the
total rentable floor area of the Premises. No reduction of Base Rent shall
occur if the condemnation does not apply to any portion of the Premises.
Any award for the taking of all or any part of the Premises under the power
of eminent domain or any payment made under threat of the exercise of such
power shall be the property of Landlord, whether such award shall be made
as compensation for diminution of value of the leasehold or for the taking
of the fee, or as severance damages; provided, however, that Tenant shall
be entitled to any compensation, separately awarded to Tenant for Tenant's
relocation expenses and/or loss of Tenant's Trade Fixtures.
16. Brokers. Tenant and Landlord each represent and warrant to the other that
(i) it has had no dealings with any person, firm, broker or finder other
than Xxxxx Xxxxx of First Industrial Realty, Inc. (First Industrial) who
acted as Landlord's agent in connection with the negotiation of this Lease
and/or the consummation of the transaction contemplated hereby; and (ii) no
broker or other person, firm or entity other than said named Broker(s) is
entitled to any commission or finder's fee in connection with said
transaction. Tenant and Landlord do each hereby agree to indemnify,
protect, defend and hold the other harmless from and against liability for
compensation or charges which may be claimed by any such unnamed broker,
finder or other similar party by reason of any dealings or actions of the
indemnifying Party, including any costs, expenses, and/or attorneys' fees
reasonably incurred with respect thereto.
17. Statements.
17.1 Estoppel. Each party shall within ten (10) days after written notice
from the other party execute, acknowledge, and deliver to the
requesting party a statement in writing certifying that this Lease 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 there have been no defaults
thereunder by Landlord or Tenant (or, if there have been defaults,
setting forth the nature thereof), the date to which the rent and
other charges have been paid in advance, if any, and such other
information as the requesting party may request. It is intended that
any such statement delivered pursuant to this Section may be relied
upon by any prospective purchaser of all or any portion of Landlord's
interest herein or any holder of any mortgage or deed of trust
encumbering the Building Complex. Tenant's failure to deliver such
statement within such time shall be conclusive upon Tenant that:
(i)the Lease is in full force and effect, without modification except
as may be represented by Landlord; (ii) there are no uncured defaults
in Landlords performance and (iii) not more than one month's rent has
been paid in advance. Further, upon request, Tenant will supply
Landlord a corporate or partnership resolution, as the case may be,
certifying that the party signing said statement of Tenant is properly
authorized to do so.
17.2 Financial Statement. If Landlord desires to finance, refinance, or
sell the Premises or the Building, or any part thereof, Tenant and all
Guarantors shall deliver to any potential lender or purchaser
designated by Landlord such financial statements of Tenant and such
Guarantors as may be reasonably required by such lender or purchaser,
including but not limited to Tenant's financial statements for the
past three (3) years. All such financial statements shall be received
by Landlord and such lender or purchaser in confidence and shall be
used only for the purposes herein set forth.
18. Landlord's Liability. The term "Landlord" as used herein shall mean the
owner or owners at the time in question of the fee title to the Premises.
In the event of a transfer of Landlord's title or interest in the Premises
or in this Lease, Landlord shall deliver to the transferee or assignee (in
cash or by credit) any unused Security Deposit held by Landlord at the time
of such transfer or assignment. Upon such transfer or assignment and
delivery of the Security Deposit, as aforesaid, the prior Landlord shall be
relieved of all liability with respect to the obligations and/or covenants
under this Lease thereafter to be performed by the Landlord. Subject to the
foregoing, the obligations and/or covenants in this Lease to be performed
by the Landlord shall be binding only upon the Landlord as hereinabove
defined.
19. Severability. The invalidity of any provision of this Lease, as determined
by a court of competent jurisdiction, shall in no way affect the validity
of any other provision hereof.
20. Interest on Past Due Obligations. Any monetary payment due Landlord
hereunder, other than late charges, not received by Landlord within ten
(10) days following the date on which it was due, shall bear interest from
the date due at the prime rate charged by the largest state chartered bank
in the state in which the Premises are located plus four percent(4%) per
annum, but not exceeding the maximum rate allowed by law, in addition to
the potential late charge provided for in Section 14.4.
21. Time of Essence. Time is of the essence with respect to the performance of
all obligations to be performed or observed by the Parties under this
Lease.
22. Rent. All monetary obligations of Tenant to Landlord under the terms of
this Lease are deemed to be rent.
23. No Prior or other Agreements. This Lease contains all agreements between
the Parties with respect to any maker mentioned herein, and no other prior
or contemporaneous agreement or understanding shall be effective.
24. Notices.
24.1 Notice Requirements. All notices required or permitted by this Lease
shall be in writing and may be delivered in person (by hand or by
messenger or courier service) or may be sent by certified or
registered mail or U.S. Postal Service Express Mail, with postage
prepaid, or by facsimile transmission during normal business hours,
and shall be deemed sufficiently given if served in a manner specified
in this Section 24. The addresses noted below shall be that Party's
address for delivery or mailing of notice purposes. Either Party may
by written notice to the other specify a different address for notice
purposes, except that upon Tenant's taking possession of the Premises,
the Premises shall constitute Tenant's address for the purpose of
mailing or delivering notices to Tenant. A copy of all notices
required or permitted to be given to Landlord hereunder shall be
concurrently transmitted to such party or parties at such addresses as
Landlord may from time to time hereafter designate by written notice
to Tenant.
11
If to Local Landlord: First Industrial Realty. Inc.
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxxxxxx
If to Landlord: First Industrial. L.P.
000 Xxxxx Xxxxxx Xxxxx. Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Chief Operating Officer
with a copy to: Barack Xxxxxxxxxx Xxxxxxxxxx
Xxxxxxx & Xxxxxxxxx
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx. Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxxx and
Xxxxxxx Xxxxxxx-Xxxxx
If to Tenant: Zynex Medical, Inc.
0000 Xxxxxxxxx Xxx
Xxxx X-0
Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx
24.2 Date of Notice. Any notice sent by registered or certified mail,
return receipt requested, shall be deemed given forty-eight (48) hours
after the same is addressed as required herein and mailed with postage
prepaid. Notices delivered by United States Express Mail or overnight
courier that guarantees next day delivery shall be deemed given
twenty-four (24) hours after delivery of the same to the United States
Postal Service or courier. If any notice is transmitted by facsimile
transmission or similar means, the same shall be deemed served or
delivered upon telephone or facsimile confirmation of receipt of the
transmission thereof, provided a copy is also delivered via delivery
of mail. If notice is received on a Saturday or a Sunday or a legal
holiday, it shall be deemed received on the next business day.
25. Waivers. No waiver by Landlord of the Default of any term, covenant or
condition hereof by Tenant shall be deemed a waiver of any other form
covenant or condition hereof or of any subsequent Default by Tenant of the
same of any other term, covenant or condition hereof. Landlord's consent to
or approval of any such act shall not be deemed to render unnecessary the
obtaining of Landlord's consent to or approval or any subsequent or similar
act by Tenant or be construed as the basis of an estoppel to enforce the
provision or provisions of this Lease requiring such consent. Regardless of
Landlord's knowledge of a Default at the time of accepting rent, the
acceptance of rent by Landlord shall not be a waiver of any Default by
Landlord of any provision hereof. Any payment given Landlord by Tenant may
be accepted by Landlord on account of moneys or damages due Landlord,
notwithstanding any qualifying statements or conditions made by Tenant in
connection therewith, which such statements and/or conditions shall be of
no force or effect whatsoever unless specifically agreed to in writing by
Landlord at or before the time of deposit of such payment.
26. Recording. Tenant shall not record this Lease or a memorandum hereof. In
the event that Tenant violates this provision, this Lease shall be null,
void and of no further force and effect, at Landlord's option, except that
Tenant shall be liable to Landlord as liquidated damages, in the amount of
the remaining Rent to be paid hereunder.
27. Holdover. Tenant has no right to retain possession of the Premises or any
part thereof beyond the expiration or earlier termination, of this Lease.
In the event that Tenant holds over in violation of this Section 27 with
the consent of Landlord, then the Base Rent payable from and after the time
of the expiration or earlier termination of this Lease shall be increased
to two hundred percent (200%) of the Base Rent applicable during the month
immediately preceding such expiration or earlier termination. Nothing
contained herein shall be construed as a consent by Landlord to any holding
over by Tenant.
28. Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other
remedies at law or in equity.
29. Covenants and Conditions. All provisions of this Lease to be observed or
performed by Tenant are both covenants and conditions.
30. Binding Effect: Choice of Law. This Lease shall be binding upon the
Parties, their personal representatives, successors and assigns and be
governed by the laws of the State of Colorado. Any litigation between the
Parties hereto concerning this Lease shall be initiated in the county in
which the Premises are located.
31. Subordination; Attornment; Non-Disturbance
31.1 Subordination. This Lease and any other Option granted hereby shall be
subject and subordinate to any ground lease, mortgage, deed of trust,
or other hypothecation or security device (collectively, "Security
Device") now or hereafter placed by Landlord upon the real property of
which the Premises are a part, to any and all advances made on the
security thereof, and to all renewals, modifications, consolidations,
replacements and extensions thereof. Tenant agrees that the Lender's
holding any such Security Device shall have no duty, liability or
obligation to perform any of the obligations of Landlord under this,
Lease, but that in the event of Landlord's default with respect to any
such obligation. Tenant will give any Lender whose name and address
have been furnished Tenant in writing for such purpose notice of
Landlord's default pursuant to Section 14.5. If any Lender shall elect
to have this Lease and/or any Option granted hereby superior to the
lien of its Security Device and shall give written notice thereof to
Tenant, this Lease and such Options shall be deemed prior to such
Security Device, notwithstanding the relative dales of the
documentation or recordation thereof.
31.2 Attornment. Subject to the non-disturbance provisions of Section 3
1.3, Tenant agrees to attorn to a Lender or any other party who
acquires ownership of the Premises by reason of a foreclosure of a
Security Device, and that in the event of such foreclosure, such new
owner shall not (i) be liable for any act or omission of any prior
Landlord or with respect to events occurring prior to acquisition of
ownership; (ii) be subject to any offsets or defenses which Tenant
might have against any prior Landlord; or (iii) be bound by prepayment
of more than one month's rent.
31.3 Non-Disturbance. With respect to Security Devices entered into by
Landlord after the execution of this Lease, Tenant's subordination of
this Lease shall be subject to receiving assurance ("non-disturbance
agreement") from the Lender that Tenant's possession and this Lease,
including any options to extend the term hereof, will not be disturbed
so long as Tenant is not in Default hereof and attorns to the record
owner of the Premises.
31.4 Self-Executing. The agreements contained in this Section 31 shall be
effective without the execution of any further documents: provided,
however, that upon written request from Landlord or a Lender in
connection with a sale, financing or refinancing of the Premises,
Tenant and Landlord shall execute such further writings as may be
reasonably required to separately document any such subordination or
non-subordination, attornment and/or non-disturbance agreement as is
provided for herein.
12
32 Attorneys' Fees. If any Party brings an action or proceeding to enforce the
terms hereof or declare rights hereunder, the Prevailing Party (as
hereafter defined) in any such proceeding, action, or appear thereon. shall
be entitled to reasonable attorneys' fees. Such fees may be awarded in the
same suit or recovered in a separate suit, whether or not such action or
proceeding is pursued or decision or judgment. The term "Prevailing Party"
shall include, without limitation, a Party who substantially obtains or
defeats the relief sought, as the case may be, whether by compromise,
settlement, judgment or the abandonment by the other Party of its claim or
defense. The attorneys' fee award shall not be computed in accordance with
any court fee schedule, but shall be such as to fully reimburse all
attorneys' fees reasonably incurred. Landlord shall be entitled to
attorneys' fees, costs and expenses incurred in preparation and service of
notices of Default and consultations in connection therewith, whether or
not a legal action is subsequently commenced in connection with such
Default.
33. Right of Entry. Landlord and Landlord's agents shall have the right to
enter the Premises at any time, in the case of an emergency, and otherwise
at reasonable times for the purpose of showing the same to prospective
purchasers, lenders, or tenants, and making such alterations, repairs,
improvements or additions to the Premises or to the Building. as Landlord
may reasonably deem necessary. Landlord may at any time place on or about
the Premises or Building any ordinary "For Sale" signs and Landlord may at
any time during the last one hundred eighty (180) days of the term hereof
place on or about the Premises any ordinary "For Lease" signs. All such
activities of Landlord shall be without abatement of rent or liability to
Tenant.
34. Auctions. Tenant shall not conduct, nor permit to be conducted, either
voluntarily or involuntarily, any auction upon the Premises without first
having obtained Landlord's prior written consent. Notwithstanding anything
to the contrary in this Lease. Landlord shall not be obligated to exercise
any standard of reasonableness in determining whether to grant such
consent.
35. Signage. Tenant shall not place any sign upon the exterior of the Premises
or the Building, except that Tenant may, with Landlord's prior written
consent, install (but not on the roof) such signs as are reasonably
required to advertise Tenant's own business so long as such signs are in a
location designated by Landlord and comply with Applicable Requirements and
the signage criteria established for the Building Complex by Landlord. The
installation of any sign on the Premises by or for Tenant shall be subject
to the provisions of Section R (Maintenance, Repairs, Utility
Installations, Trade Fixtures and Alterations). Unless otherwise expressly
agreed herein, Landlord reserves all rights to the use of the roof of the
Building, and the right to install advertising signs on the Building,
including the roof, which do not unreasonably interfere with the conduct of
Tenant's business; Landlord shall be entitled to all revenues from such
advertising signs. Landlord's sign criteria is attached hereto as part of
Exhibit D.
36. Termination; Merger. Unless specifically stated otherwise in writing by
Landlord, the voluntary or other surrender of this Lease by Tenant, the
mutual termination or cancellation hereof, or a termination hereof by
Landlord for Default by Tenant, shall automatically terminate any sublease
or lesser estate in the Premises: provided, however, Landlord shall, in the
event of any such surrender, termination or cancellation, have the option
to continue any one or all of any existing subtenancies. Landlord's failure
within ten (10) days following any such event to make a written election to
the contrary by written notice to the holder of any such lesser interest,
shall constitute Landlord's election to have such event constitute the
termination of such interest.
37. Guarantor.
37.1 Form of Guaranty. If there are to be any Guarantors of the Lease per
Section 1.12, the form of the guaranty to be executed by each such
Guarantor shall be in the form provided by Landlord attached hereto as
Exhibit E and each such Guarantor shall have the same obligations as
Tenant under this Lease, including, but not limited to, the obligation
to provide the Tenancy Statement and information required in Section
17.
37.2 Additional Obligations of Guarantor. It shall constitute a Default of
the Tenant under this Lease if any such Guarantor fails or refuses,
upon reasonable request by Landlord to give: (a) evidence of the due
execution of the guaranty called for by this Lease, including the
authority of the Guarantor (and of the party signing on Guarantor's
behalf) to obligate such Guarantor on said guaranty, and resolution of
its board of directors authorizing the making of such guaranty,
together with a certificate of incumbency showing the signatures of
the persons authorized to sign on its behalf; (b) current financial
statements of Guarantor as may from time to time be requested by
Landlord; (c) a Tenancy Statement; or (d) written confirmation that
the guaranty is still in effect.
38. Quiet Possession. Upon payment by Tenant of the rent for the Premises and
the performance of all of the covenants, conditions and provisions on
Tenant's part to he observed and performed under this Lease and subject to
the provisions of this Lease, Tenant shall not be disturbed in its
possession of the Premises for the entire term hereof by Landlord or any
other person lawfully claiming through or under Landlord.
39. Rules and Regulations. Tenant agrees that it will abide by, and keep and
observe all reasonable rules and regulations ("Rules and Regulations) which
Landlord may make from time to time for the management, safety, care, and
cleanliness of the grounds, the parking and unloading of vehicles and the
preservation of good order, as well as for the convenience of other
occupants or tenants of the Building and the Building Complex and their
invitees.
40. Security. Tenant hereby acknowledges that the rent payable to Landlord
hereunder does not include the cost of guard service or other security
measures, and that Landlord shall have no obligation whatsoever to provide
same. Tenant assumes all responsibility for the protection of the Premises,
Tenant, its agents and invitees and their property from the acts of third
parties. Notwithstanding the foregoing, Landlord may elect to provide a
concierge or security guard for more efficient operation of the Building
Complex, and the cost thereof shall be included as a Common Area Operating
Expense. Landlord is not obligated to provide such services at any time or
for any length of time. Tenant expressly acknowledges that Landlord has not
represented to Tenant that the Building Complex is secure and Landlord
shall not be responsible for the quality of any services which may be
provided hereunder or for damage or injury to Tenant, its agents,
employees, invitees or others or its betterments contained in the Building
Complex or the Premises due to the failure, action or inaction of such
persons.
41. Reservations. Landlord reserves the right, from time to time, to grant,
without the consent or joinder of Tenant, such easements, rights of way,
utility raceways, and dedications that Landlord deems necessary, and to
cause the recordation of parcel maps and restrictions, so long as such
easements, rights of way, utility raceways, dedications, maps and
restrictions do not unreasonably interfere with the use of the Premises by
Tenant. Tenant agrees to sign any documents reasonably requested by
Landlord to effectuate any such easement rights, dedication, map or
restrictions.
42. Authority. If either Party hereto is a corporation, trust, or general or
limited partnership, each individual executing this Lease on behalf of such
entity represents and warrants that he or she is duly authorized to execute
and deliver this Lease on its behalf. If Tenant is a corporation, trust or
partnership. Tenant shall within thirty (30) days after request by
Landlord. deliver to Landlord evidence satisfactory to Landlord of such
authority.
43. Conflict. Any conflict between the printed provisions of this Lease and the
typewritten or handwritten provisions shall be controlled by the
typewritten or handwritten provisions.
44. Offer. Preparation of this Lease by either Landlord or Tenant or Landlord's
agent or Tenant's agent and submission of same to
13
hereto.
45. Amendments. This Lease may be modified only in writing, signed by the
parties in interest at the time of the modification. The Parties shall
amend this Lease from time to time to reflect any adjustments that are made
to the Base Rent or other rent payable under this Lease. As long as they do
not materially change Tenant's obligations hereunder, Tenant agrees to make
such reasonable non-monetary modifications to this Lease as may be
reasonably required by an institutional insurance company or pension plan
lender in connection with the obtaining of normal financing or refinancing
of the property of which the Premises are a part.
46. Multiple Parties. Except as otherwise expressly provided herein, if more
than one person or entity is named herein as either Landlord or Tenant, the
obligations of such multiple parties shall be the joint and several
responsibility of all persons or entities named herein as such Landlord or
Tenant.
47. Relocation of Premises. Landlord shall have the right, at its sole option,
to relocate Tenant and substitute for the Premises other space with the
Building Complex. Landlord shall notify Tenant with sixty (60) days prior
written notice of the date Tenant will need to be relocate into the new
Premises. Substitute space shall contain at least as much square footage as
the Tenant's original Premises, which space thereafter shall be governed by
the terms and conditions of the Lease Agreement. Such substitute Premises
shall have similar building features and shall be improved with decorations
and improvements at least equal in quantity and quality with Tenant
original Premises. Said costs for decoration and improvements shall be at
the sole expense of the Landlord. Decorations and improvement in such
substitution Premises shall include, but not be limited to, moving
expenses, sign relocation, door lettering and telephone relocation
expenses. Tenant, at Tenant's option, may terminate this Lease within
fifteen (15) days of receipt of notice to relocate from Landlord. Lease
termination shall be effective on the date Tenant would have been relocated
to the new Premises.
48. Temperature. Tenant shall maintain the air temperature in its leased space
warm enough to prevent the freezing of plumbing and sprinkler systems, if
any.
49. Confidentiality. All information contained in this Lease Agreement is
hereby deemed confidential and shall not be divulged to anyone without the
express written consent of Landlord except as otherwise specified in
Section 17, and Section 26 of this Lease Agreement or as otherwise required
by law.
The parties hereto have executed this Lease to be effective on the date and year
first above written.
LANDLORD: TENANT:
First Industrial. L.P., a Delaware Zynex Medical, Inc.
limited partnership by First Industrial a Colorado corporation
Realty Trust, a Maryland corporation its
General partner
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------ --------------------------------
Xxxxxx Xxxxx Xxxxxx Xxxxxxxxx
Its: Regional Director Its: President
Address: 0000 Xxxxx Xxxxxx Xxxxxx Address: 0000 Xxxxxxxxx Xxx,
Xxxxx 000 Xxxx X-0
Xxxxxxxxx Xxxxxxx, Xxxxxxxx Xxxxxxxxx, Xxxxxxxx 00000
80111
Phone: 303.220-5565 Phone: 000-000-0000
Fax: 307.220-5585 Fax: 000-000-0000
EXHIBITS
Exhibit A - Depiction of Premises
Exhibit B - The Building Complex
Exhibit C - Work Agreement
Exhibit D - Sign Criteria
Exhibit E - Guaranty
Exhibit F - Option to Extend
14
EXHIBIT A
DEPICTION OF PREMISIS
---------------------
[Detailed architect drawing of office space]
0000 Xxxxxxxxx Xxx, Xxxxx X0
00
XXXXXXX X
THE BUILDING COMPLEX
--------------------
Southwest Business Center
[Map of Location]
16
EXHIBIT C
WORK AGREEMENT
(Landlord's Work Form)
----------------------
a. To that certain lease made as of the 28th day of January, 2004, between First
Industrial, L.P., a Delaware limited partnership as Landlord, and Zynex Medical,
Inc., a Colorado corporation as Tenant, covering approximately 9,857 square feet
of space located at 0000 Xxxxxxxxx Xxx, Xxxx X-0, Xxxxxxxxx, Xxxxxxxx 00000.
Concurrently herewith, you as Tenant, and the undersigned, as Landlord, have
executed a Lease covering the above captioned Premises (the provisions of said
Lease are herein incorporated by reference as if fully set forth herein). In
consideration of the execution of said Lease. Tenant and Landlord mutually agree
as follows:
1. Tenant Improvement Allowance. Landlord agrees to provide Tenant with an
allowance of $O.5O/SF ($4,928.50) towards any work Tenant does within the
Premises. Tenant shall provide Landlord with paid receipts and lien waivers for
all leasehold improvements made to the Premises. Tenant shall use a licensed
general contractor who shall be required to pull a building permit for any
leasehold improvements that are not cosmetic in nature (i.e. carpet/paint).
Landlord will, within thirty (30) days from the receipt of the above
documentation. reimburse Tenant for the total of the paid receipts or $4,928.50,
whichever is less. Tenant shall use the allowance within three (3) months of
lease commencement or Tenant shall forfeit said allowance.
Except as listed above. Tenant shall take delivery of the Demised Premises in
substantially "as is" condition. Any other costs necessary for Tenant to open
for business shall be the sole responsibility of Tenant.
LANDLORD: TENANT:
First Industrial. L.P., a Delaware Zynex Medical, Inc.
limited partnership by First Industrial a Colorado corporation
Realty Trust, a Maryland corporation its
General partner
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------ --------------------------------
Xxxxxx Xxxxx Xxxxxx Xxxxxxxxx
Its: Regional Director Its: President
Address: 0000 Xxxxx Xxxxxx Xxxxxx Address: 0000 Xxxxxxxxx Xxx,
Xxxxx 000 Xxxx X-0
Xxxxxxxxx Xxxxxxx, Xxxxxxxx Xxxxxxxxx, Xxxxxxxx 00000
80111
Phone: 303.220-5565 Phone: 000-000-0000
Fax: 307.220-5585 Fax: 000-000-0000
17
SCHEDULE 1 TO WORK AGREEMENT
PROCEDURE AND SCHEDULES FOR COMPLETION
--------------------------------------
OF TENANT WORK BY TENANT
------------------------
Tenant and Tenant's Contractor and the contracts between Tenant and Tenant's
Contractors, to be entered into in connection with the performance of Tenant's
Work, shall conform to the following rules, regulations, and requirements, which
shall be incorporated into such contracts. Tenant shall ensure that all of
Tenant's Contractors act in conformity with the provisions set forth herein. In
the event of any conflict between any other terms or provisions of Tenant's
contracts and the terms and provisions set forth below, the terms and provisions
set forth below shall control.
A. Tenant shall start construction of Tenant's Work in the Premises not
later than ten (10) days from issuance of a building permit, and shall carry
such construction to completion with all due diligence.
B. Tenant shall submit to Landlord, in writing, at least ten (10) days
prior to the commencement of construction, the following information:
1. The names and addresses of the general, mechanical and electrical
contractors, if any, Tenant intends to engage in the construction of
Tenant's Work and copies of proposed contracts executed by Tenant. (The
term "Contractor" as used hereinafter shall mean Tenant's general
Contractor or, if Tenant does not use a general Contractor, then all
Contractors with whom Tenant contracts directly for Tenant's Work. The term
"Subcontractors" shall mean and refer to all entities contracting with the
Contractor to complete Tenant's Work.)
2. A proposed schedule setting forth the commencement date of
construction of Tenant's Work and the date of completion of construction of
Tenant's Work, fixturing work, dates for proposed interruption of services
(if any required) and the date of projected opening.
3. Copies of performance and/or labor and material bonds, as required
by Landlord, from the Contractor and Subcontractors.
4. Final itemized statement of estimated construction costs, including
architectural, engineering and contracting fees.
5. Evidence of insurance as called for herein. Tenant shall secure,
pay for and maintain, or cause its Contractor(s) to secure, pay for and
maintain, during the continuance of and for one (1) year after completion
of construction and fixturing work within Tenant's Premises, all of the
insurance policies required and in the amounts as set forth herein. Tenant
shall not permit, and Tenant's contract shall prohibit its Contractor to
commence any work until all required insurance has been obtained and
certified copies of policies have been delivered to Landlord.
C. Insurance: The following insurance requirements shall be complied with:
1. Minimum Coverage -Prior to any Tenant's Work being commenced by
Tenant's Contractor or Subcontractors, Tenant or Tenant's Contractor (as
set forth below), shall obtain and maintain insurance with minimum coverage
and limits to protect Landlord and Landlord's managing agent from the
claims hereinafter set forth which may arise or result from performance of
any Tenant's Work. whether such work be done by Tenant's Contractor or by
any of Subcontractors or by anyone directly or indirectly employed by
Tenant's Contractor or Subcontractors or by anyone for whose acts Tenant's
Contractor or Subcontractors may be liable as set forth as follows (such
limits may be provided by an appropriate "umbrella" policy):
a. Workmen's Compensation insurance at the statutory limits provided
for by the State of Colorado:
b. Employer's liability insurance at a limit of not less than $100,000
for all damages arising from each accident;
c. Comprehensive general liability insurance covering: (i) Operations
Premises liability; (ii) Owner's and Contractor's protective liability;
(iii) Completed operations: (iv) Product liability; (v) Contractual
liability; (vi) Broad form property damage endorsement and property damage
caused by cogitations otherwise subject to exclusion for explosion,
collapse or underground damage; (vii) Fire legal liability, with the
following insurance limits: Bodily Injury: $1,000,000 each occurrence;
$1,000,000 aggregate completed operations products; Property Damage
$500,000 each occurrence; $500.000 aggregate operations; $500,000 aggregate
protective; $500,000 aggregate completed operations/products;
d. Comprehensive automobile liability insurance covering all owned,
hired or non-owned vehicles including the loading and unloading thereof
with limits of no less than: Automobile Bodily Injury: $500,000 each
person; $1,000,000 each occurrence: Automobile Property Damage: $500,000
each person;
e. Physical damage insurance covering the completed value of the
Tenant's Work which shall afford coverage against "all risks" for physical
loss or damage.
2. Cancellation - All such insurance shall be carried with a company
or companies reasonably satisfactory to Landlord and Landlord's managing
agent and the insurance described in (3). (4) and (5) above, and shall name
Landlord and Landlord's managing agent and their employees and agents as
additional insured parties. In addition, each policy shall provide that it
will not be canceled or altered except after ten (10) days advance written
notice to Landlord, and the certificate of insurance shall so state.
3. Policy Termination -Tenant's Contractor and Subcontractors shall
maintain all insurance required hereunder during the completion of Tenant's
Work and for a period ending one (1) year after the date of completion of
all Tenant's Work.
4. Either Tenant or Tenant's Contractor may provide the insurance
required hereunder except that Tenant's Contractor shall at a minimum
provide the insurance described in (1), (2) and (3) of subparagraph 3(a)
above. Prior to commencement of work by Tenant's Contractor. ~t shall
deliver two (2) copies of the aforementioned policies or certificates
evidencing such insurance to Landlord. All policies shall be deemed primary
over any other valid or collectible insurance carried by Landlord or
Landlord's managing agent. Such policies must be approved by Landlord prior
to commencement of said work. Without the express written consent of the
Landlord, Tenant agrees that it shell not allow any Contractor. or
subcontractor to commence work within the Shopping Center until such entity
has obtained the Insurance required above.
5. Waiver of Subrogation - Tenant and Tenant's Contractor and
Subcontractors shall waive all rights against each other and the
subcontractors, sub-subcontractors, agents and employees, each of the other
for damages caused by fire or other perils available under the normal "All
Risk" I.S.0, insurance policy on the work itself and the Building.
18
D. As provided above, Tenant shall notify Landlord of the names of the
proposed Tenant's Work general, mechanical and electrical contractors. All
Contractors and Subcontractors engaged by Tenant shall be bondable, licensed
contractors, capable of performing quality workmanship and working in harmony
with Landlord's general contractor and other contractors on the job. All work
shall be coordinated with the general project work. Landlord shall have the
right to require Tenant's Contractors and Subcontractors to provide payment and
performance bonds for any or all Tenant's Work. such bonds to be paid for out of
Tenant's Work Allowance if such funds are available. Any bond shall be requested
and provided prior to the commencement of Tenant's Work.
E. Tenant's Contractor and construction shall comply in all respects with
applicable federal, state, county and/or local statutes, ordinances,
regulations, laws and codes. All required building and other permits in
connection with the construction and completion of Tenant's Work shall be
obtained and paid for by Tenant out of Tenant's Work Allowance if such funds are
available. If either party observes that any Tenant's Work is at variance in any
respect with any applicable codes, ordinances, laws, rules and regulations, it
shall promptly notify the. other party and Landlord in writing, and any
necessary changes shall be made by Tenant. If Tenant's Contractor performs any
Tenant's Work that it knows is contrary to such codes, laws, ordinances, rules
and regulations, and fails to deliver such notice to the Tenant and Landlord,
Tenant's Contractor shall assume full responsibility therefore and shall bear
all costs attributable to repair, replacement or correction. Tenant and Tenant's
Contractor and its subcontractors shall comply with Federal, State and local tax
laws, social security acts. unemployment compensation acts and such other acts
and laws as are applicable to the performance of Tenant's Work.
F. All contracts shall be in writing, and no work shall be done except
pursuant to such contracts. Tenant's contract with Tenant's Contractor shall be
subject to Landlord prior written consent, which consent shall not be
unreasonably withheld or delayed. Any approved contracts shall not be amended or
modified without approval by Landlord, which consents shall not be unreasonably
withheld or delayed. The Tenant's contract shall conform with the provisions of
the Lease, including all provisions herein, and shall obligate the Tenant's
Contractor to complete Landlord's Tenant's Work in accordance with the schedule
referred to in Paragraph 2(b) above.
G. Work which Landlord shall have the right to have performed on behalf of
and for the benefit of Tenant shall be limited to work which Landlord deems
necessary to be done on an emergency basis and which pertains to structural
components, the general utility systems for the project, and the erection of
temporary barricades and temporary signs, per standard project details and
criteria, during construction or Tenant's Work which in Landlord's reasonable
opinion is not being performed in compliance with this Schedule 1.
H. Tenant's Work shall be subject to the inspection and reasonable approval
of Landlord. Landlord's architect and general Contractor. Such inspection shall
be for Landlord's sole benefit and shall in no event be construed as any benefit
to, nor may Tenant rely thereon. All of Tenant's Work shall be first quality.
I. Tenant shall apply and pay for all utility meters except where metered
service is provided by Landlord or public service agency.
J. The Tenant's contract shall include a statement requiring the Contractor
and all Subcontractors, laborers. and material men to execute a lien waiver for
any interim and final payments. A copy of the executed waiver or notice of
refusal is to be immediately forwarded to the Landlord.
K. Tenant and Tenant's Contractor shall indemnify and hold harmless
Landlord and representatives, agents and employees from and against all claims,
damages, losses, and expenses, including, but not limited to, reasonable
attorney's fees arising out of or resulting from the performance of Tenant's
Work or Tenant's Contractor's performance of the Tenant's contract which are:
(a) caused in whole or in part by any negligence or omission of Tenant's
Contractor, any subcontractor or anyone directly or indirectly employed by any
of them or anyone for whose acts any of them may be liable; and (b) attributable
to bodily injury, sickness, disease or death, or the destruction of tangible
personal property, including loss of use resulting from any of the foregoing
acts and all Tenant's Work contracts shall reflect this indemnity. In any and
all claims against the Landlord or its representatives or any of their agents or
employees or by an employee of Tenant's Contractor, any subcontractor, anyone
directly or indirectly employed by any of them. or anyone for whose acts any of
them may be liable. The indemnification obligation under the Paragraph 14 shall
not be limited in any way by any limitation on the amount or type of damages.
compensation or benefits payable by or for the Tenant's Contractor or any
Subcontractor under the Workers Compensation Act, disability benefit acts, or
other employee benefit acts.
L. In the event a Subcontractor or materialman files a mechanics' lien as a
result of performing work pursuant to Tenant's contract then Tenant's Contractor
shall indemnify the Tenant and Landlord from said lien and shall, when requested
by the Tenant and/or Landlord, pay the amount requested to release the lien or
furnish Tenant and Landlord (as Landlord or Tenant may specify) either a bond
sufficient to discharge the lien or deposit in an escrow approved by Landlord
and Tenant a sum equal to 150% of the amount of such lien. Subject to any
restrictions thereon posed by any mortgagee' of Landlord. Tenant's Contractor
shall have the right and opportunity, in cooperation with Landlord and Tenant,
to contest the validity of any such mechanics' lien by such legal means as are
available, including the right to prosecute any appeals which may be permitted
by law so long as during the pendency of any contest or appeal, the Tenant's
Contractor shall effectively stay or prevent any official or judicial sale of
any of the real property or improvements comprising the building, upon execution
or otherwise, and so long as the Tenant's Contractor pays any final judgment
entered with respect to any such mechanics' lien and thereafter procures and
records, within a reasonable time, record satisfaction thereof. In the event the
Tenant and Landlord shall be a party to any such coiltest or appeal, or any
other action resulting from or arising out of the performance of the work by
Tenant's Contractor (or any of its subcontractors, agents, or employees),
Tenant's Contractor shall be responsible for all legal fees and other costs and
expenses incurred by Landlord and Tenant in any such action. Landlord and Tenant
shall have the right to obtain separate counsel of their choice at Tenant's
Contractor's expense. In the event that Tenant's Contractor fails to pay the
lien or provide a bond or cash escrow, or otherwise fails to fully satisfy and
obtain the release of any lien or claim in accordance with the provisions
hereof. Tenant's Contractor shall be obligated to pay to Tenant or Landlord, as
the case may be, all monies that the latter may pay in discharging any such lien
including all costs and reasonable attorneys' fees incurred by Landlord or
Tenant in settling, defending against, appealing or in any other manner dealing
with any such lien.
M. All risk of loss to all property of the Tenant and Tenant's Contractor
and its subcontractors. Including, but not limited to, tools and materials
located on the Premises. shall be the sole and exclusive responsibility of the
Tenant and Tenant's Contractor and its subcontractors, and the Landlord shall
have no responsibility therefore.
N. If Tenant or Tenant's Contractor is adjudicated a bankrupt, or if Tenant
or Tenant's Contractor makes a general assignment for the benefit of its
creditors, or if a receiver is appointed on account of Tenant's Contractor's
insolvency, or if Tenant's Contractor persistently or repeatedly refuses or
falls, except in cases where delay is justified, to supply enough properly
skilled workmen or proper materials or if Tenant's Contractor persistently
disregards laws, ordinances, rules, regulations or orders of any public
authority having jurisdiction, or otherwise is guilty of a substantial violation
of a provision of Tenant's contact, then the Tenant (or Landlord in the event of
Tenant's bankruptcy. default. or assignment to creditors) may, without prejudice
to any right or remedy and after giving the Tenant's Contractor and its surety,
if any, seven (7) business days' written notice, terminate Tenant's contract
with the Contractor and in the event of Contractor's default take possession of
all materials, equipment, tools, construction equipment and machinery thereon
owned by Tenant's Contractor and shall thereafter finish all Tenant's Work being
constructed and previously contracted for by Tenant's Contractor by whatever
method it may deem expedient. In such case. Tenant's Contractor shall not be
entitled to receive any further payments from Tenant until completion of all
Tenant's Work; provided, however, that the Tenant's actions shall not release
Tenant's Contactor from any obligations to Tenant arising from its performance
or nonperformance under any contracts prior to the date of such termination.
Following the completion of such uncompleted Tenant's Work, Tenant shall pay the
Tenant's Contractor an amount equal to the aggregate of the amounts actually due
under Tenant's contract at the time of the termination of the contract. less the
cost to Tenant of completing all the Tenant's Work. Upon termination of Tenant's
contract, Tenant's Contractor shall execute and deliver all documents and take
all steps, including the legal assignment of Tenant's Contractor contractual
rights as the Tenant may require for the purpose of fully vesting in Tenant the
rights and benefits of the Tenant's Contractor under Tenant's contract, and
arising out of it. Tenant shall also pay to the Tenant's Contractor fair rental
for any equipment retained.
19
0. Tenant's Contractor shall warrant and agree, at its expense, and at no
expense whatsoever to Landlord or Tenant to correct or cause to be corrected any
defects in the Tenant's Work (including, but not limited to, latent defects or
defects due to defective workmanship or materials whether supplied, installed or
performed by Tenant's Contractor or any Subcontractor or supplier) which occur
within one (1) year after Tenant's Contractor has substantially completed the
Tenant's Work, including completion of all punchlist items, (as evidenced by the
Tenant's acceptance of such Work) or for such longer period as may be set forth
in the Tenant's contract. Tenant's Contractor shall require a similar warranty
in all Subcontracts, and shall deliver to Landlord and Tenant, together with
appropriate assignments, if required, all warranties of subcontractors and
suppliers of materials, components and equipment furnished and installed in
connection with such Tenant's Work. Tenant's Contractor further agrees that all
guaranties and warranties relating to any Tenant's Work or any materials
incorporated into the Tenant's Work shall be extended to and given to both the
Landlord and the Tenant, as their respective interests in such Tenant's Work
exist, as more particularly set forth in the Lease between the Landlord and
Tenant.
P. Landlord shall have no obligation with respect to Tenant's Contractor
except for the provision to Tenant's Contractor of those services which Landlord
provides to other tenant finish contractors in the Building Complex without
preference or privileges.
Q. Landlord and Landlord's contractor shall have the right, from time to
time as may be required, to inspect or perform work within the Premises. Such
inspections or work shall not conflict with Tenant's Contractor's work in the
Premises unless it is necessary in an emergency situation Further, Landlord
shall have the right to suspend Tenant's Contractor's work in the Premises if
such work, in the reasonable opinion of Landlord or of Landlord's contractor, is
presenting or may present a danger to life, safety, or property, or in an
emergency situation.
R. Tenant shall give Landlord reasonable prior notice to all inspections,
punchouts and other reviews during the course of construction so that Landlord
may observe such events. Further. Landlord shall be likewise informed of all
building Department inspections and requirements for issuance of the Certificate
of Occupancy for the Premises. Landlord's observation of any such events shall,
in no event be construed or interpreted as a review or approval by Landlord of
any such work nor shall it prevent Landlord, if it thereafter discovers any
deficiency in such Work, from requiring correction thereof as otherwise provided
herein. Tenant's Contractor shall be solely responsible for obtaining such
Certificate of Occupancy and shall submit to Landlord the original thereof prior
to Tenant's occupancy of the Premises for the purpose of conducting business.
S. Provided the same is performed in a reasonable manner. Landlord's
engineer or other agent shall have the option of reviewing all equipment and
materials to be used in the construction of the Tenant's Work and all such work
prior to Tenant move-in. Such review shall in no event constitute approval by
Landlord.
T. Tenant's Contractor will not store materials or supplies in, about, or
outside the Building Complex (other than within the Premises) without the prior
approval of the Landlord and Landlord's contractor.
U. Tenant's Contractor will provide, at all times, direct supervision of
any and all work being performed for the Tenant including the delivery and
hoisting of materials, if necessary.
V. Tenant's Contractor will cooperate with Landlord to dispose of refuse
resulting from Tenant's Work. This may include the use of Landlord's dumpster
and a proration of charges associated with such use or at Landlord's option and
Tenant's sole cost and expense the placement of Tenant Contractor's dumpster at
a location specified by Landlord.
W. If my legal action or arbitration proceeding is commenced in order to
enforce the provisions of Tenant's contract or to recover damages as a result of
the alleged breach of the provisions thereof, the prevailing party in any such
action or proceeding shall be entitled to recover all reasonable costs incurred
in connection therewith, including reasonable attorneys' fees.
20
EXHIBIT D
SIGN CRITERIA
These criteria have been established for the purpose of assuring a quality
business park and for the mutual benefit of all Tenants. Conformance will be
strictly enforced, and any installed nonconforming or unapproved signs must be
brought in conformance at the expense of the Tenant. ANY SIGN THAT DOES NOT
CONFORM TO THESE REGULATIONS WILL BE REMOVED AND REPLACED WITH A CONFORMING SIGN
AT TENANTS EXPENSE.
It will be the sole responsibility of the Tenant to conform to the terms of
this Sign Criteria as follows:
A. General Requirements:
1. Within thirty (30) days after execution of this Lease. Tenant will
provide, at its sole cost and expense, the Tenant's portion of the sign in
conformance with the criteria below.
2. The sign base complete with the unit number has been provided on
the building. The sign base is the property of the Landlord.
3. Tenant identification shall be restricted to the Tenant portion of
the sign except for item "A" below.
4. The lettering/logo and installation of the Tenant portion of the
sign on the sign base shall be paid for by Tenant and remain the property
of Landlord. All letters and other scripting shall be consistent in color
and style with the lettering on the base and in good taste, in the opinion
of Landlord.
5. Tenant shall submit to Landlord for its approval all copy and/or
logo prior to installation of the Tenant portion of the sign.
6. Upon Lease termination, Tenant shall remove its sign and return the
premises to their original condition.
7. No electrical or audible signs will be allowed.
8. Except as provided herein, no banners, pennants, placards,
freestanding signs, or signs affixed to automobiles or trailers are allowed
on the building. in the landscaped areas, or on streets or, parking area.
The restriction pertaining to automobiles or trailers does not apply to
magnetic or painted identification signs placed on company or private
vehicles for use in the normal course of business.
9. All signs will be reviewed for conformance with this criteria and
overall aesthetics and design quality Approval or disapproval of sign
submittals based on aesthetics shall remain the sole right of the Landlord.
10. Each Tenant shall submit or cause to be submitted to Landlord for
approval before fabrication at least four (4) copies of detailed drawings
indicating location, size, layout, design and color of the proposed signs,
including all lettering and/or graphics.
11. All permits for signs and their installation shall be obtained by
the Tenant or their representative at Tenant's cost and expense and will
comply with all appropriate government requirements. Nothing in this
criteria shall imply a waiver of requirements by the local authorities.
12. Tenant shall be responsible for the fulfillment of all
requirements and specifications.
13. All signs shall be constructed and installed at Tenant's expense
B. Specific Requirements:
1. None
2.
3.
4.
LANDLORD: TENANT:
First Industrial. L.P., a Delaware Zynex Medical, Inc.
limited partnership by First Industrial a Colorado corporation
Realty Trust, a Maryland corporation its
General partner
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------ --------------------------------
Xxxxxx Xxxxx Xxxxxx Xxxxxxxxx
Its: Regional Director Its: President
Address: 0000 Xxxxx Xxxxxx Xxxxxx Address: 0000 Xxxxxxxxx Xxx,
Xxxxx 000 Xxxx X-0
Xxxxxxxxx Xxxxxxx, Xxxxxxxx Xxxxxxxxx, Xxxxxxxx 00000
80111
Phone: 303.220-5565 Phone: 000-000-0000
Fax: 307.220-5585 Fax: 000-000-0000
21
EXHIBIT E
GUARANTY
THIS GUARANTY is given as of this 28th day of January, 2004, by Xxxxxx
Xxxxxxxxx (hereinafter referred to as "Guarantor"), whose home address is 00000
X. Xxxxxxxx Xx., Xxxxxxxxx, Xxxxxxxx 00000.
W I T N E S S E T H:
WHEREAS, First Industrial, L.P., a Delaware limited partnership
("Landlord") is willing to execute that certain Lease Agreement (the "Lease")
dated the __ day of _________,2004, between Landlord and Zynex Medical, Inc., a
Colorado corporation ("Tenant") pertaining to approximately 9,857 square feet of
space in the Building located at 0000 Xxxxxxxxx Xxx, xx xxx Xxxx xx Xxxxxxxxx,
Xxxxx of Colorado, known as Suite A-9 (the "Premises") on condition of receiving
the Guaranty from the Guarantor as herein contained;
NOW, THEREFORE, for and in consideration of leasing the Premises by the
Landlord to Tenant in accordance with the terms and provisions of the Lease,
which Lease is executed concurrently herewith, to induce Landlord to execute and
deliver the Lease and for other good and valuable considerations, the receipt
and sufficiency of which are hereby acknowledged by the Guarantor, Guarantor
hereby agrees as follows.
1. Guarantor hereby represents and warrants to Landlord that:
a. Guarantor acknowledges that Guarantor is financially interested in
Tenant.
b. Guarantor further warrants and represents that the financial
information provided to Landlord by Tenant and Guarantor, upon which
Landlord may have relied in entering into the Lease, is currently accurate.
c. This Guaranty has been duly executed and delivered by the
authorized of guarantor and constitutes lawful, binding and legally
enforceable obligations.
2. Guarantor hereby, jointly and severally, unconditionally and irrevocably
guarantees the prompt and faithful performance of all of the terms and
provisions of the Lease by Tenant and any assignee of Tenant, including, but not
limited to, the payment of all installments of rent and other sums due to
Landlord thereunder. Guarantor does hereby waive each and every notice to which
Guarantor may be entitled under said Lease, or otherwise. and expressly consents
to any extension of time, leniency, modification, waiver, forbearance, or any
change which may be made in any term and condition of the Lease, and no such
change, modification, extension, waiver, or forbearance shall release Guarantor
from any liability or obligation hereby incurred or assumed. Guarantor further
expressly waives any notice of default in or under any of the terms of the
Lease, notice of acceptance of this Guaranty, and all setoffs and counterclaims;
provided, however, Guarantor shall be given the same right to cure Tenant's
default as that afforded Tenant under the Lease.
3. It is specifically understood and agreed that, in the event of a default
by Tenant of the terms and provisions of the Lease and after the expiration of
any applicable grace period, Landlord shall be entitled to commence any action
or proceeding against the Guarantor or otherwise exercise any available remedy
at law or in equity to enforce the provisions of this Guaranty without first
commencing any action or otherwise proceeding against Tenant or otherwise
exhausting any or all of its available remedies against Tenant, it being
expressly agreed by the undersigned that its liability under this Guaranty shall
be primary. Landlord may maintain successive actions for other defaults. Its
rights hereunder shall not be exhausted by its exercise of any of its rights or
remedies or by any such action or by any number of successive actions, until and
unless all obligations hereby guaranteed have been paid and fully performed.
4. In the event that any action be commenced by Landlord to enforce the
provisions of this Guaranty, Landlord shall be entitled, if it shall prevail in
any such action or proceeding, to recover from Guarantor all reasonable costs
incurred in connection therewith, including reasonable attorneys' fees.
5. No payment by Guarantor shall entitle Guarantor under any obligations
owed by Tenant to Guarantor, by subrogation or otherwise. to any payment by
Tenant under or out of the property of the Tenant, including specifically, but
not limited to, the revenues derived from the Premises
6. This Guaranty shall inure to the benefit of Landlord, its heirs,
personal representatives, successors, and assigns and shall be binding upon the
heirs, personal representatives, successors, and assigns of the Guarantor.
7. The liability of the Guarantor hereunder shall in no way be affected by,
and Guarantor expressly waives any defenses that may arise by reason of, (a) the
release or discharge of the Tenant in any creditors', receivership, bankruptcy
or other proceedings; (b) the impairment, limitation or modification of the
liability of the Tenant or the estate of the Tenant in bankruptcy, or of any
remedy for the enforcement of the Tenant's said liability under the Lease,
resulting from the operation of any present or future provision of the National
Bankruptcy Act or other statute or from the decision In any court; (c) the
rejection or disaffirmance of the Lease in any such proceedings; (d) the
modification, assignment or transfer of the Lease by the Tenant; (e) any
disability or other defense of the Tenant; or (f) the cessation from any cause
whatsoever of the liability of the Tenant.
8. Guarantor agrees that in the event Tenant shall become insolvent or
shall he adjudicated a bankrupt, or shall file a petition for reorganization,
arrangement or similar relief under any present or future provisions of the
Federal Bankruptcy Code, or any similar law or statute of the United States or
any State thereof, or if such a petition filed by creditors of Tenant shall be
approved by a Court, or if Tenant shall seek a judicial readjustment of the
rights of its creditors under any present or future Federal or State law or if a
receiver of all or part of its property and assets is appointed by any State or
Federal court:
a. If the Lease shall be terminated or rejected, or the obligations of
Tenant thereunder shall be modified. Landlord shall have the option either
(i) to require the undersigned, and the undersigned, hereby so agree, to
execute and deliver to Landlord a new lease as tenant for the balance of
the term then remaining as provided in the Lease and upon the same terms
and conditions as set forth therein, or (ii) to recover from the
undersigned that which Landlord would be entitled to recover from Tenant
under the Lease in the event of a termination of the License by Landlord
because of a default by Tenant, and such shall be recoverable from the
undersigned without regard to whether Landlord is entitled to recover the
same from Tenant in any such proceeding.
b. If any obligation under the Lease is performed by Tenant and all or
any part of such performance is avoided or recovered from Landlord as a
preference, fraudulent transfer or otherwise, in any bankruptcy,
insolvency, liquidation, reorganization or other proceeding involving
Tenant, the liability of Guarantor under this Guaranty shall remain in full
force and effect.
22
c. As further security for the payment of amounts under this Guaranty.
Guarantor will file all claims against Tenant upon any indebtedness of
Tenant to the undersigned in any bankruptcy or other proceeding in which
the filing of claims is required by law and will assign to Landlord all
rights of the undersigned thereunder, to the extent of Guarantor's
obligations under this Guaranty. If Guarantor does not file any such claim,
Landlord, as attorney-in-fact for Guarantor is hereby authorized to do so
in the name of Guarantor or, in Landlord's discretion, to assign the claim
and to cause proof of claim to be filed in the name of Landlord's nominee.
In all such cases, whether in administration, bankruptcy or otherwise, the
person or persons authorized to pay such claim shall pay to Landlord the
full amount thereof, and, to the full extent necessary for that purpose,
Guarantor hereby assigns to Landlord all of Guarantor's rights to any such
payments or distributions to which Guarantor would otherwise be entitled.
This Guaranty shall be enforced with the laws of the State of Colorado
and shall be deemed executed in the County of Arapahoe, State of Colorado.
Guarantor hereby consents to and submits to the jurisdiction of the federal
and state courts located in the State of Colorado and any action or suit
under this Guaranty by Guarantor shall only be brought in the federal or
state court with appropriate under the Guaranty, and hereby waives any
defenses based on the venue, inconvenience of the forum, lack of personal
jurisdiction, the sufficiency of service and processor the like in ay such
action or suit brought in the State of Colorado.
/s/ Xxxxxx Xxxxxxxxx
-----------------------------------------------
Xxxxxx Xxxxxxxxx
Social Security Number: XXX-XX-XXXX
-----------
or (Tax ID Number):
STATE OF Colorado
------------------------------------
COUNTY OF Arapahoe
-------------------------------------
The foregoing instrument was acknowledged before me this 28th day of
January, 2004 by Xxxxxx Xxxxxxxxx .
Witness my hand and official seal.
My commission expires: 10-24-2005 ) Xxxxxx X. Xxxxx
---------- ) ss Notary Public
) State of Colorado
/s/ Xxxxxx X. Xxxxx
-------------------
Notary Public
23
EXHIBIT E
OPTION TO EXTEND
(Market)
As additional consideration for the covenants of Tenant hereunder, Landlord
hereby grants unto Tenant an option (the "Option") to extend the term of this
Lease for one (1) additional term of five (5) years (the "Option Term"). The
Option shall apply to all space then under the Lease at the time the Option Term
would commence and shall be on the following terms and conditions:
A. Written notice of Tenant's interest in exercising the Option shall
be given to Landlord not earlier than twelve (12) months and not later than
six (6)months prior to the expiration of the Primary Lease Term ("Tenant's
Notice"). Not later than thirty (30) days after receiving Tenant's Notice,
Landlord shall give to Tenant notice of the terms, conditions and rental
rate applicable during the Option Term, in accordance with subparagraph E
below ("Landlord's Notice")
B. Tenant shall have ten (10) days following Tenant's receipt of
Landlord's Notice within which to exercise the Option by delivering written
notice of such exercise to Landlord under the terms, conditions and rental
rate set forth in Landlord's Notice. If Tenant gives such Notice and
provided the other conditions to the extension have been satisfied, the
term of the Lease shall be automatically extended for the Option Term
without requiring further action by the parties; provided, however, the
parties shall execute an amendment to the Lease to confirm the terms of the
extension.
C. Unless Landlord is timely notified by Tenant in accordance with
subparagraphs A and B above, the Option shall terminate and the Lease shall
expire in accordance with its terms, at the end of the Primary Lease Term.
D. Tenant's Option to extend shall continue only if as of the date of
Tenant's Notice or as of the date of commencement of the Option Term.
Tenant (i) shall not be in default under the Lease at the time of exercise
of the option or at the time of the commencement of the Option Terms; (ii)
Tenant shall not have sublet more than twenty-five percent (25%) of the
Premises nor assigned its interest in the Lease nor vacated the Premises;
or (iii) Tenant shall not have been sent more than two (2) letters
notifying Tenant of noncompliance with the terms and conditions of the
Lease during Tenant's tenancy.
E. The Option granted hereunder shall be upon the same terms and
conditions of this Lease, except for the rental to be paid by Tenant, and
except there shall be no further option to extend the Lease. The Base Rent
applicable during each Option Term shall be comparable to that for
comparable space in a comparable building complex as of the date of
Landlord's Notice but in no event shall the rate be less than the Base Rent
which Tenant is paying immediately prior to commencement of the Option
Term.
F. After exercise of the Option to extend for one terms above
described, there shall be no further rights on the part of Tenant to extend
the term of the Lease.
LANDLORD: TENANT:
First Industrial. L.P., a Delaware Zynex Medical, Inc.
limited partnership by First Industrial a Colorado corporation
Realty Trust, a Maryland corporation its
General partner
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------ --------------------------------
Xxxxxx Xxxxx Xxxxxx Xxxxxxxxx
Its: Regional Director Its: President
Address: 0000 Xxxxx Xxxxxx Xxxxxx Address: 0000 Xxxxxxxxx Xxx,
Xxxxx 000 Xxxx X-0
Xxxxxxxxx Xxxxxxx, Xxxxxxxx Xxxxxxxxx, Xxxxxxxx 00000
80111
Phone: 303.220-5565 Phone: 000-000-0000
Fax: 307.220-5585 Fax: 000-000-0000
24
