EXHIBIT 10.24
LEASE
This Lease is executed on this 9th day of August, 1993, by and WRC
Properties, Inc. (hereinafter called "Landlord"), and Cell Pathways Inc., a
Delaware corporation (hereinafter called "Tenant").
1. Demise
1.1 In consideration of the timely payment of the rent and performance of
all of the covenants and agreements by Tenant as are hereinafter set forth,
Landlord hereby leases and demises unto Tenant, and Tenant accepts, the Demised
Premises (as hereinafter defined), together with the right to use in common with
Landlord, its other tenants, subtenants and invitees thereof the common exterior
parking, service drives and trash collection areas hereinafter designated for
Tenant's use.
2. Definitions
Throughout this Lease, the following terms or words shall have the
following meaning, to wit:
2.1 "Demised Premises" is that part of the Project, being suite number
110, comprising a total floor area of 7930 square feet, in the building
addressed as 0000 Xxxxx Xxxxxxx, Xxxxxx, Xxxxxxxx ("Building"), and the non-
exclusive right to use the balance of the "Project", both of which are
identified on Exhibit "A", attached hereto and incorporated herein by reference.
2.2 "Project" is that particular development, consisting of land, four (4)
buildings and other improvements, one of which is the Building, containing the
Demised Premises, all of which is depicted on Exhibit "A". The Project may be a
part of a development of greater size, located on the lands adjoining the
Project, which total development, including the Project, is hereafter called
"Development."
2.3 "Commencement Date" is (a) the 1st day of October, 1993, or (b) that
date on which Tenant shall have first taken possession of any part of the
Demised Premises, whichever shall first occur. The actual Commencement Date
shall be memorialized as provided in Section 2.5 hereof.
2.4 "Proportionate Share" is that percentage determined by dividing the
square footage from time to time in the Demised Premises (i.e., presently 7,930)
by the total square footage from time to time in the buildings in the Project
(i.e., presently 144,148). Such share shall apply, among other items, to the
determination of Tenant's Additional Rent.
2.5 "Term" means a period of five (5) years and six (6) months and zero
(0) days to be computed from 12:01 a.m. on the Commencement Date (if clause
"(a)" of Section 2.3 hereof is applicable, but if clause "(b)" thereof is
applicable, then such other period of years, months and days as shall be
determined based upon the actual Commencement Date as determined in
1.
accordance with said clause "(b)" and expiring at 12 o'clock midnight on the
31st day of March 1999, unless earlier terminated in accordance with the
provisions of this Lease. See Addendum regarding Possession or Delay in
Commencement or Term.
2.6 "Rent" means the "Base Rent" as is hereinafter defined, and all other
financial obligations of Tenant hereunder which are herein described as
"Additional Rental" or "Additional Rent."
TENANT'S COVENANTS
3. Rent
3.1 Base Rent.* Tenant covenants and agrees to timely pay without notice,
deduction, set-off or abatement, to Landlord at its offices, or such other
address as Landlord may notify Tenant, an annualized Base Rent of Forty-Eight
Thousand Two Hundred Fourteen and 44/100 Dollars ($48,214.44**) for the term
hereof, in lawful money of the United States, in equal consecutive monthly
installments of Four Thousand Seventeen and 87/100 Dollars ($4,017.87) each, in
advance on the first day of each month during the Term hereof.*** If the Term
hereof commences, expires or is terminated on any day other than the first or
last day of a month, respectively, the Rent for the month in which such shall
occur shall be adjusted on a per diem basis.
* See Addendum regarding Rent Abatement/Rent Escalation.
** See Addendum regarding Base Rent breakdown.
*** With a ten day (10) grace period.
2.
3.2 Rent Adjustments/Additional Rent. Commencing with the thirteenth
(13th) month of this Lease, to the extent that the Proportionate Share of the
Operating Costs, as said term is hereinafter defined, on a calendar year basis,
exceeds (or is estimated by Landlord to exceed, subject to adjustment as
hereinafter provided in Section 3.2.2) Two and 33/100 Dollars ($2.33) per square
foot of the Project ("Landlord's Share"), the Tenant agrees to pay the same to
Landlord in the manner provided in said Section 3.2.2 as Additional Rental.
3.2.1 Operating Costs. The term "Operating Costs" means the total
amounts paid or payable by Landlord, or others on behalf of Landlord, in any
calendar year, in connection with the ownership, maintenance, repair and
operations of the Project, including the Building and, including without
limiting the generality of the foregoing, the amounts paid for all energy and
fuel used in connection with common areas and used in and about the Project, but
not in the Demised Premises, the amount paid for all electricity furnished to
the Project, other than electricity furnished to and paid for by tenants in
accordance with their separate meters; the amount paid for all hot and cold
water other than that chargeable to tenants by reason of their extraordinary
consumption of water; the amount paid for all labor and/or wages and other
payments including cost to Landlord of workmen's compensation and disability
insurance, payroll taxes, welfare and fringe benefits made to janitors, security
personnel, employees, contractors and subcontractors of the Landlord involved in
the operation and maintenance of the Project; sewer taxes and charges; Real
Estate Taxes (as are hereinafter described); managerial, administrative and
telephone expenses related to the Project; the total charges of any independent
contractors employed in the care and operation, maintenance and cleaning of the
Project, including snow and trash removal and landscaping; the amount paid for
all supplies, tools, equipment and necessities which are occasioned by everyday
wear and tear; the cost of accounting services necessary to compute the rents
and charges payable by tenants; legal, inspection and consulting services; the
cost of pest control; the cost of guards and other protection services; payments
of general maintenance and repairs to the plant and equipment supplying climate
control; and the amount paid for premiums for all insurance required or deemed
desirable from time to time by Landlord or Landlord's mortgagee(s), including
without limitation loss of rent or business interruption insurance. Operating
Costs shall not, however, include interest on debt, capital retirement of debt,
costs properly chargeable to capital account except for capital expenditures
which reduce operating expenses in which case such expenditures shall be
amortized over the life of the object for such capital expenditure, or any cost
which is charged to and collected from any tenant of the Project on account of
any negligent or willful act or omission of such tenant or for which such tenant
may be liable, contractually or otherwise. The reference to "Project" in this
subparagraph (b) shall include all related facilities, including sidewalks,
loading and/or parking areas and driveways, landscaping, curbs, curb cuts and
other public areas in or around the Building, other buildings and improvements
in the Project. The provision or termination of such services or others and the
degree thereof shall be determined by Landlord. Moreover, when Landlord causes
services to be rendered by independent third parties, Landlord shall have no
liability for the performance thereof or liability therefor, provided that
Landlord has not been grossly negligent in the hiring and supervision of such
third parties.
3.
(a) "Real Estate Taxes" shall mean and include all general and
special taxes, assessments, duties and levies, charged and/or levied upon or
assessed against the Project or any part thereof, including by way of
illustration, the Building, the land upon which it is located, any leasehold
improvements, fixtures, installations, additions and equipment, whether owned by
Landlord or Tenant, provided that Tenant shall not be burdened with taxes
attributable to improvements, fixtures, installations, additions and equipment
owned or used by another Tenant in the Project. Further, if at any time during
the Term of this Lease the method of taxation of real estate prevailing at the
time of execution hereof shall be, or has been altered so as to cause the whole
or any part of the taxes now or hereafter levied, assessed or imposed on real
estate to be levied, assessed or imposed upon Landlord, wholly or partially, as
a capital levy, sales tax, value added tax, or otherwise, or on or measured by
the rents received therefrom, then such new or altered taxes attributable to the
Project shall be deemed to be included within the term "Real Estate Taxes" for
purposes of this Section.
(b) In the event that more than the Project is developed in the
Development, there may be expenditures that are common to the Project and either
parts or all of such additional development, in which event the Landlord shall
allocate the same, to extent applicable, as Landlord shall determine, to the
Project, provided that the Project shall not be burdened thereby in excess of
value reasonably conferred.
3.2.2 Payment of Additional Rent. Any Additional Rent payable by
Tenant under Section 3.2 hereof shall be paid as follows, unless otherwise
provided: during the Term, Tenant shall pay to Landlord, monthly, in advance,
one-twelfth (1/12) of the amount of such Additional Rent on a calendar year
basis, as estimated by Landlord to become due from Tenant. Such estimate must be
adjusted by Landlord no less frequently than on an annual calendar year basis,
and Tenant shall pay installments of Additional Rent according to such estimate.
Landlord shall first deduct from the Operating Costs one-twelfth (1/12) of
Landlord's Share allocable to the Demised Premises in arriving at each month's
assessment of Additional Rent of the Tenant. As soon as the pro rata amount
payable by the Tenant for each calendar year, including the final such year or
portion thereof, has been determined, the amount shall be adjusted between the
Landlord and the Tenant. In such final year or portion thereof, any adjustment
required hereunder shall be made within sixty (60) days of such year's end. This
adjustment provision shall survive the termination or expiration of this lease.
3.2.3 Records. In connection with payment of Additional Rent under
Section 3.2 hereof, Tenant, at its expense, may examine the books of the
Project, pursuant to thirty days advance written notice, at Landlord's corporate
offices, and provided that same shall be conducted in a manner so as not to
interfere with or interrupt the operations of Landlord. Such examination,
however, shall not extend the due date for payment. In the event any dispute
shall arise relating to the accounting treatment of a component of such
Additional Rent, the determination of a mutually agreed upon independent
certified public accountant shall be binding on all parties.
3.3 Late Payments. In the event Tenant (more than three (3) times) makes a
payment of Rent or any component thereof which is less than the full amount of
such Rent or
4.
component thereof then due, or returned marked "NSF" or "Account Closed" or the
like, Landlord may thereafter require Tenant to make all future payments of Rent
by certified or cashier's checks from banks located in the Denver Metropolitan
Area.
4. Use of Demised Premises
4.1 Permitted Uses. Tenant shall use and occupy the Demised Premises only
Pharmaceutical and Biotechnology Research and development and general
business offices in an orderly, legal, reputable and safe manner and, to the
extent of Tenant's right to do so, to use the balance of the Project for only
the purposes for which it was designed and to do so in the aforesaid manner.
Tenant shall exercise reasonable diligence and discipline to cause its invitees,
suppliers, independent contractors, customers and agents to conform to the
foregoing. No sign (except for permitted standard building signage per Exhibit
"C"), fixture, advertisement or notice shall be displayed, inscribed, painted or
affixed or established by Tenant on or in any part of the Demised Premises,
Building and/or Project, except that signs may be displayed upon the interior of
the Demised Premises which are not visible from without the Demised Premises and
which do not damage or deface any component thereof, reasonable wear and tear
excluded. Except for building standard materials and colors, Tenant shall not
install any draperies, shades or venetian blinds visible from the exterior of
the Building, unless the color, materials, shape, style and size shall have been
approved by the Landlord which approval shall be within the sole discretion of
Landlord. In no event shall Tenant cause waste to occur in, on or about the
Demised Premises or Project. Tenant shall conform to the Rules and Regulations
which are attached hereto, and incorporated by reference as, Exhibit "C", and
all modifications and additions thereto which are periodically promulgated by
Landlord. Landlord shall have the right at all times to change the Rules and
Regulations or to amend or supplement them in any reasonable manner as may be
deemed advisable for the safety, care and/or cleanliness, and for the
preservation of good order, in the Project and Development and any and all
components thereof, including the Demised Premises, provided they do not
interfere with the Permitted Uses.
5. Services
5.1 Energy. Tenant shall independently contract with third parties for its
gas and electrical energy to be used in and on the Demised Premises and shall
timely pay therefor. Landlord has no obligation to provide any energy, fuel or
telephone to Tenant for Tenant's use, or for Tenant's operations in and around
the Demised Premises.
5.2 Janitorial Services and Security Protection. If such services are
desired, Tenant at its sole expense shall timely pay all charges and costs for
janitorial services performed in and security protection for the Demised
Premises during the Term of this Lease. Tenant shall independently contract for
such services with a provider of such services.
5.
6. Alterations/Repairs
6.1 By Tenant.
6.1.1 Alterations. Tenant shall make no structural alterations,
structural decorations, structural improvements or structural additions, in, on
or around the interior or exterior of the Demised Premises, or remove its
improvements which may become Landlord's property (hereinafter collectively
referred to as "alterations"), as hereafter provided, without first obtaining
the written consent of Landlord, which shall not be unreasonably withheld, after
Tenant shall have submitted its final plans and specifications relating thereto.
Such work must be performed in accordance with such drawings and specifications
and by such contractors engaged by Tenant, approved in writing by Landlord and
subject to all reasonable conditions which Landlord may impose, which shall not
be unreasonably withheld. All such work shall be performed free and clear of all
mechanic's and/or materialmen's liens and Landlord shall have no liability for,
or whatsoever in connection with, the performance of such work, notwithstanding
its consent to any plans and specifications or Tenant's contractor. Provided
nevertheless that Landlord may at its option, pursuant to contracts approved by
Tenant, which approval shall not be unreasonably withheld, at Tenant's expense,
require that Landlord's designated contractors be engaged for any mechanical,
electrical work or other work affecting the structure of the Building,
including, without limitation, at any time and from time to time, repairs when
same, in Landlord's opinion, are needed and periodic maintenance consistent with
manufacturers' recommendations and/or requirements and in accordance with the
recommendations and/or requirements specified by the installing mechanical
engineer or contractor or any mechanical engineer retained or designated by
Landlord. At Landlord's election, Tenant shall submit to Landlord's supervision
over construction, shall provide Landlord upon request with financial assurances
prior to the commencement of alterations, and, pursuant to contracts approved by
Tenant, which approval shall not be unreasonably withheld, promptly pay to
Landlord's or to Tenant's subcontractors as the case may be, when due, the cost
of all such work and of all materials, labor and services involved therein.
Tenant covenants that Tenant will not suffer or permit during Term hereof any
mechanics' or other liens for work, labor, services or materials ordered by
Tenant or for the cost of which Tenant may be obligated, pursuant to contracts
approved by Tenant, which approval shall not be unreasonably withheld, to attach
to Demised Premises, the Building or portion of the Project and that whenever
and so often as any such liens shall attach or claims therefor shall be filed,
Tenant shall within forty-five (45) days after Tenant has notice of the claim of
lien, procure the discharge thereof. Tenant shall, at its own cost and expense,
take out or cause to be taken out any additional insurance and payment and
performance bonds reasonably required by Landlord to protect Landlord's and
Tenant's interest during the period of, or otherwise with respect to, the
alteration. At least five (5) days prior to the commencement of any work
permitted to be done by Tenant, Tenant shall notify Landlord of the proposed
work and the names and addresses of the persons supplying labor and materials
for work so that Landlord may avail itself of the provisions of Colorado law.
During any such work
6.
on Demised Premises, Landlord shall have the right to inspect the Demised
Premises at all reasonable times, and shall have the right to post thereon
notices such as those provided for by Colorado law. All alterations, additions
or improvements made by either party (except only moveable office furniture not
attached to the Building and laboratory equipment, shelves, cabinets, animal
cages, supplies and equipment), at the expense of either party, shall be deemed
a part of the Building and the property of Landlord and shall remain upon and be
surrendered with the Demised Premises as a part thereof without molestation,
disturbance or damage at the termination or expiration of this Lease.
Notwithstanding said ownership of such items, the Landlord may notify Tenant
prior to the end of the term that it elects to have Tenant remove said
additions, alterations, and improvements and restore the Demised Premises to the
condition in which said Premises were prior to the making of such alterations,
additions or improvements, reasonable wear and tear excepted, provided, however,
that this shall not apply to tenant improvements constructed in accordance with
Exhibit B-2. In such event title to such items shall pass to Tenant upon
removal, but no express or implied warranties by Landlord relating to such
property shall occur incidental to such transfer or otherwise. This covenant
includes the obligation to replace broken glass on or constituting a portion or
component of the Demised Premises.
6.1.2 Repairs.
(a) Tenant shall, at its own cost and expense, (1) repair or
replace any damage to all or any part of the Demised Premises or any other
portion of the Project or Development caused by Tenant or Tenant's agents,
employees, invitees, licensees or visitors; (2) continuously maintain or cause
to be maintained, as suggested by equipment manufacturer, all heating, air
conditioning, plumbing, venting and electrical systems and equipment in a safe
and good operating condition; (3) to maintain the balance of the Demised
Premises or any component thereof (except for items of maintenance and repair
specifically assumed by Landlord hereunder, but including doors, stairs, loading
docks, signs, etc.) in safe, well maintained condition. If Tenant fails to
promptly maintain or repair as aforesaid despite notice from Landlord, Landlord,
at its option, may maintain or make the repairs or replacements and Tenant shall
reimburse Landlord for the cost thereof, plus interest at the rate hereinafter
specified, within five (5) days after demand by Landlord.
(b) Tenant shall not allow any damage to be committed on any
portion of the Demised Premises, Project and Development and, at the termination
of this Lease, by lapse of time or otherwise, Tenant shall deliver the Demised
Premises to Landlord in as good condition as at the date of first possession of
Tenant, ordinary wear and tear, and permitted alterations and improvements,
excepted. The cost and expense of any repairs necessary to so restore the
condition of the Demised Premises shall be borne by Tenant but, if Landlord
specifically undertakes to restore the Demised Premises pursuant to contracts
approved by Tenant, which approval shall not be unreasonably withheld, it shall
have a right of reimbursement from Tenant, plus interest at the rate hereinafter
specified, within five (5) days after demand by Landlord.
(c) Tenant shall conform to the requirements of 6.1.1 hereof
when it performs or causes to be performed any repairs.
7.
6.2 By Landlord.
6.2.1 Repairs. Unless otherwise expressly provided, Landlord shall
not be required to make any improvements, replacements or repairs of any kind or
character to the Demised Premises, the Project or the Development or any portion
thereof during the term of this Lease, except those relating to the maintenance
of the roof, foundation, and the structural support of the roof and exterior
walls (excluding all doors, loading docks, exterior stairs, Tenant signs and
related equipment) of the Demised Premises, Project and Development in good
repair and condition, except for reasonable wear and tear. Landlord shall not be
liable to Tenant, except as expressly provided in this Lease, for any damage or
inconvenience, and Tenant shall not be entitled to any abatement or reduction of
rent by reason of any repairs, alterations or additions required to be made by
Landlord under this Lease.
6.2.2 Alterations. Landlord hereby reserves the right from time to
time to make repairs in and/or to or changes in, additions to, subtractions from
or rearrangements of the Demised Premises, the Project or the Development,
including, without limitation, all improvements at any time thereof, all
entrances and exits thereto, and to grant, modify and terminate easements or
other agreements pertaining to the use and maintenance of all or parts of the
Building or Project and to make changes or additions to the pipes, conduits,
utilities and other necessary services in and/or to the Demised Premises or
which serve other portions of the Project or the Development, provided that
Tenant shall not be thereby unreasonably restricted in Tenant's quiet enjoyment
of the Demised Premises for the Permitted use.
6.3 Liability Limitations.
6.3.1 Landlord's Liability. Tenant shall neither hold nor attempt to
hold Landlord liable (a) for any injury to persons, including death, or damage
to property, either proximate or remote, as the result of or caused by any
repairs, alterations or accident occurring in, to or upon the Demised Premises,
the Project or the Development or any component thereof, to property adjacent to
the Project or the Development, or other parts of the Building not herein
demised, whether by reason of the negligence or fault of the Landlord or
occupants thereof or any other person or otherwise, nor (b) for any injury or
damage occasioned by Landlord's simple negligence, gas, smoke, rain, snow, wind,
ice, hail, water, however occasioned, lightening, earthquake, war, civil
disorder, strike, lack of fuel or energy, defective electric wiring or the
breaking or stoppage of the plumbing or sewerage upon, to or in the Building or
adjacent premises, whether said breaking or stoppage results from freezing or
otherwise; provided, however, that the foregoing shall not apply to Landlord's
breach of contract, violation of law, gross negligence or intentional tort or to
the extent otherwise provided for by Colorado law.
6.3.2 Tenant Indemnification. Tenant shall indemnify, defend, and
save harmless Landlord of and from all liability for damages or claims against
Landlord on account of injuries to the person, including death, or damage to the
property of any other tenant in the Project or the Development, or to any other
person within any part of the Project or the Development for any purpose
whatsoever, where the injuries are caused by the negligence or wrongful
misconduct of the Tenant, its agents, servants or employees, or of any other
person entering upon the
8.
Demised Premises or any part of the Project or the Development under express or
implied invitation of Tenant or other parties who have a right or license to be
in the Project or the Development, or where such injuries are the result of the
violation of ordinances, rules, regulations, decrees or orders of any
governmental or quasi-governmental agency of competent jurisdiction, including,
without limitation, boards of insurance underwriters, or of any of the rules and
regulations provided for herein by any of such persons; provided, however, that
Tenant shall not be liable for any damages attributable to Landlord's gross
negligence, breach of contract, violation of Law or intentional tort.
7. Business and Other Taxes
7.1 Tenant shall fully and timely pay all taxes and assessments levied,
charged or assessed against or in respect of Tenant's occupancy and/or use of
the Demised Premises, the Project or the Development or any activities therein
conducted (e.g., sales taxes) or in respect of the personal property, trade
fixtures, furniture and facilities of Tenant on the Demised Premises, the
Project or the Development, if any, and to indemnify, defend and hold Landlord
harmless from and against all payment of such taxes and assessments and against
all loss, costs, charges and expenses (including attorneys' fees) occasioned by
or arising from any and all such taxes, rates, duties, assessments and to
promptly deliver to Landlord for inspection, upon request of the Landlord,
evidence satisfactory to Landlord of any such payments.
8. Acceptance of Premises
8.1 Subject to the provisions of 2.5, Landlord will complete the Demised
Premises in accordance with Exhibit "B". Tenant acknowledges that it will
examine the Demised Premises before taking possession hereunder. Unless Tenant
furnishes Landlord with a notice in writing specifying any defect in the
construction of the Demised Premises within ten (10) days after taking
possession, such taking of possession shall be conclusive evidence as against
the Tenant that at the time of taking possession the Demised Premises were in
good order and satisfactory condition; provided, that the following shall not
apply to latent or hidden defects or conditions which are in violation of
applicable laws, regulations or ordinance.
9. Estoppel Certificates
9.1 By Tenant. Tenant agrees that it will at any time and from time to
time, upon not less than ten (10) days' prior notice, execute and deliver to the
Landlord a statement in writing, provided by Landlord, certifying that this
Lease is unmodified and in full force and effect (or, if modified, stating the
modifications and that the Lease, as modified, is in full force), the amount of
the Rent then being paid hereunder, the dates to which the same, by installment
or otherwise, and each component thereof have been paid, and whether or not
there is any claimed existing default or event which with the passage of time or
the giving of notice or both would result in such a default on the part of
Landlord of which the Tenant has notice and such other information as may be
required by Landlord, its mortgagees, prospective purchasers or any governmental
entity. Failure of Tenant to timely execute said statement shall constitute an
unconditional acknowledgment that the Tenant's status under the Lease is as
thereafter represented by the
9.
Landlord as of the date of the request for such statement, provided that such
statement as finished by Landlord to Tenant for signature is both true and
complete in all material respects.
9.2 By Landlord. Landlord agrees to provide a statement as described in
and in accordance with and subject to the remedy provided in 9.1 hereof.
10. Surrender
10.1 End of Term. Tenant shall surrender and deliver up possession of the
Demised Premises promptly at the expiration or earlier termination of this
Lease.
11. Insurance
11.1 Tenant's Obligations. During the term of this Lease, Tenant, at its
sole cost and expense and for the mutual benefit of Landlord, Landlord's
mortgagee(s) and Tenant, shall obtain and maintain in full force the following
insurance:
11.1.1 Casualty. Casualty insurance, including fire, extended perils
coverage and coverage for smoke damage on all of the personal property located
within the Demised Premises and on all improvements which may have been made by
Tenant to and/or in the Demised Premises.
11.1.2 Property/Liability. Property damage and public liability
insurance including personal injury liability, contractual liability, non-owned
automobile liability, owners' and contractors' protective insurance coverage and
a cross liability clause with respect to the Demised Premises and the Tenant's
use of any part of the Building, the Project and the Development, and which
coverage shall include the business operations conducted by the Tenant and any
other persons on the Demised Premises, and by Tenant, its agents and employees,
upon the Project or the Development or any portion thereof. Such policies shall
be written on a comprehensive basis with limits of not less than One Million
Dollars ($1,000,000.00) for any one occurrence and such higher limits as the
Landlord or the mortgagee(s) of the Landlord may reasonably require from time to
time.
11.1.3 Workmen's Compensation. Workmen's Compensation insurance
insuring Landlord and Tenant from all claims for personal injury and death in
such amounts as may, from time to time, be sufficient to pay the maximum
accumulated award allowed by Colorado law.
11.2 Policy Requirements. Any other form or forms of insurance as the
Landlord or the mortgagee(s) of the Landlord may reasonably require from time to
time in form, in amounts and for insurance risks against which a prudent tenant
would protect itself. All policies shall be maintained with insurers who are
qualified to do business in Colorado and are acceptable to Landlord and in form
satisfactory from time to time to the Landlord. The Tenant agrees that
certificates of insurance will be delivered to the Landlord not later than ten
(10) days prior to Commencement Date or when Tenant takes possession of all or
any part of the Demised Premises, whichever shall first occur. All policies
shall name Landlord, and Landlord's
10.
mortgagee(s) if Landlord so requests, as additional insureds, and shall contain
an undertaking by the insurers to notify the Landlord and the mortgagee(s) of
the Landlord in writing by registered or certified mail, not less than thirty
(30) days prior to the effective date of any material change, cancellation or
other termination thereof.
12. Entry by Landlord
12.1 Entry Permitted. Without creating any obligation to repair any
matter not specifically assumed by Landlord hereunder, Tenant agrees to permit
Landlord, or its agents to enter upon the Demised Premises at any time for the
purpose of inspecting and/or of making repairs, alterations or improvements to
the Demised Premises or to the Building or any component part of either of them,
and the Tenant shall not be entitled to compensation set-off or concession
whatsoever for any inconvenience, nuisance or discomfort occasioned thereby.
Landlord shall attempt to proceed hereunder in such manner as to minimize
interference with Tenant's use and enjoyment of the Demised Premises, but,
notwithstanding the foregoing, Landlord shall not be obligated to cause such
work to be done on any evening, weekend, holiday or over-time basis. Tenant
shall permit Landlord or its agents to exhibit and show the Demised Premises to
prospective tenants during normal business hours of the last six (6) months of
the Term or any renewal thereof.
13. Assignment and Subletting
13.1 Permissible Occupants. Tenant shall not permit any part of the
Demised Premises to be used or occupied by any persons other than Tenant, and
the employees, servants and agents of Tenant, nor permit any part of the Demised
Premises to be used or occupied by any licensee or concessionaire, or permit any
persons to be upon the Demised Premises other than Tenant and Tenant's
employees, customers and others having lawful business with them. Tenant shall
include such partnerships and corporations through which Tenant conducts its
business as well as the University of Colorado or any subdivision thereof with
which Tenant is working.
13.2 Sublet/Assignment. Tenant shall not assign all or any interest in
this Lease, nor sublet nor part with the possession of all or part of the
Demised Premises without the prior written consent of Landlord, which consent
shall not be unreasonably withheld; provided, however, such consent to any
assignment or subletting shall not relieve the Tenant from its obligations for
the payment of all Rental due hereunder and for the full and faithful observance
and performance of Tenant's covenants, terms and conditions of this Lease.
Without limiting the generality of anything foregoing, Landlord shall be
entitled to withhold consent to a proposed assignment if the proposed assignee
has either less financial stability, viability or net worth or conducts its
business substantially differently from the manner or method of Tenant or shall
use the Demised Premises for activities different from Tenant. The sale or
transfer of "control" (as hereinafter defined) of the Tenant, if Tenant is a
corporation, shall constitute an assignment of the Lease for purposes of this
paragraph. "Control" shall denote a simple majority of stock ownership of a
close corporation or the right to vote in sufficient quantity so as to either
vary affirmative major policy and/or decisions and/or elect a substantial number
of the board of directors, or prevent the affirmative vote of major policy or
decisions (e.g., merger, sale of
11.
substantially all assets, etc.) either by forbearing to vote or affirmatively
voting against them. Consent of the Landlord to an assignment or subletting
shall not in any way be construed to relieve the Tenant from obtaining the
consent of the Landlord to any further assignment or subletting. Landlord's
consent shall not relieve Tenant or any subsequent assignee from liability under
this Lease. In no event may a Tenant sublease for a Rent that is less than the
then current prevailing rate charged to new tenants in the Project. If Tenant
collects any rent or other amounts from a subtenant or assignee in excess of the
Base Rent, Additional Rent and Tenant's share of increases in Operating Costs,
Tenant shall pay to Landlord, as and when Tenant receives the same, all such
excess amounts received by Tenant.
13.3 Landlord's Consent. If Tenant requests Landlord's consent to an
assignment of this Lease or to a subletting of the whole or any part of the
Demised Premises, Tenant shall submit to Landlord the name of the proposed
assignee or subtenant and such information as to the nature of its business and
its financial responsibility, capability and status as Landlord may reasonably
require, and amount of rent to be paid, and the effective date of the proposed
assignment or sublease. Upon receipt of such request and information from and/or
about the Tenant's proposed assignee or subtenant, Landlord shall have the
right, exercisable by notice within a reasonable period thereafter in writing to
approve or disapprove of such proposed transaction or to cancel and terminate
this Lease if the request is to assign this Lease or to sublet all of the
Demised Premises, or if the request is to sublet a portion of the Demised
Premises only, to cancel and terminate this Lease as to such portion. Such
decision shall be binding upon the Tenant. No effective date of such proposed
transaction shall be prior to the completion of the procedures set forth in this
paragraph 13.3. Notwithstanding any approval by Landlord pursuant hereto, no
such assignment or subletting shall, in any manner whatsoever, operate to or
have the effect of releasing or discharging Tenant from any obligation or
performance required of Tenant under any provision of this Lease. If Landlord
shall exercise such right Tenant shall surrender possession of the entire Leased
Premises or the portion which is the subject of the right, as the case may be,
on the date set forth in such notice in accordance with the provisions of this
Lease relating to surrender of the Leased Premises at the expiration of the
Term. If this Lease shall be cancelled as to a portion of the Leased Premises
only, the base rent (together with any escalations therein) payable by the
Tenant under this Lease shall be abated proportionately.
14. Compliance with Laws, Rules and Regulations
14.1 Tenant's/Landlord's Obedience of Laws, Etc. Tenant and or Landlord
shall comply with all laws, ordinances, orders, rules and regulations of state,
federal, municipal or other governmental and quasi-governmental entities,
including, without limitation, boards of insurance underwriters, agencies or
bodies having jurisdiction relating to the use, condition and occupancy of the
Demised Premises, the Project and the Development. Tenant and or Landlord shall
neither do nor cause to be done anything that will increase the real estate
taxes or insurance premiums or risks of the Landlord and or Tenant.
12.
LANDLORD'S COVENANTS
15. Services
15.1 Water, Sewer and Common Area. During the Term hereof and as long as
Tenant shall occupy said Demised Premises pursuant to the provisions of this
Lease, and shall not then be in default of any of its obligations hereunder,
Landlord agrees to furnish or cause to be furnished at those points of supply
provided for general use of all tenants in the Building, physical facilities for
water and sewer, exterior lighting in the Project, snow removal, centralized
trash removal, landscape and parking area maintenance in the Project, as may be
reasonably required for the reasonable use and occupation of the Demised
Premises in conformity with all Federal and State Statutes, regulations,
Presidential and governmental Executive Orders and other governmental and quasi-
governmental action and/or laws applicable thereto or Landlord's voluntary
program of conservation of energy or water consistent with current mores in the
community. It is understood that Tenant's use of such services shall be limited
to that which is necessary for normal use. Tenant shall pay on demand to
Landlord for the use of such services beyond that which is necessary for normal
use. Landlord shall not provide relamping or reballasting (although it reserves
the right to periodically reballast and/or refixture on a group basis). Any and
all of the foregoing shall be deemed Operating Costs.
15.2 Interruption or Discontinuance of Landlord's Services. Whenever
and to the extent that Landlord shall be unable to fulfill or shall be delayed
or restricted in the fulfillment of any obligation hereunder in respect to the
supply or provision of any service or utility or the doing of any work or the
making of any repairs by reason of being unable to obtain, after reasonable
efforts to do so, the material, goods, equipment, service, utility, energy, fuel
or labor required to enable it to fulfill such obligation or by reason of any
statute, law or any regulation or order passed or made pursuant thereto or by
reason of the order or direction of any administrator, controller or board, or
any governmental or quasi-governmental department or officer or other authority,
or by reason of not being able to obtain any permission or authority required
thereby, or during periods of inspection, alteration or improvement of the
Building or any part of the Project or the Development, or by reason of any
other cause beyond its control, whether of the foregoing character or not,
Landlord shall be entitled to extend the time for fulfillment of such obligation
by a time equal to the duration of such delay or restriction, and Tenant shall
not be entitled to compensation, abatement of Rent or recovery of damages, for
any inconvenience, nuisance, discomfort or otherwise thereby occasioned. Tenant
agrees that if any payment of rent as herein provided shall remain unpaid for
more than fifteen (15) days after it shall have become due, Landlord may,
with notice to Tenant, discontinue furnishing any or all of such services
until all arrearages of Rent have been paid in full, and the Landlord shall not
be liable for damages to person or property for any such discontinuance or
consequential damages resulting therefrom. Furthermore, such discontinuance
shall not be construed as an eviction or constructive eviction of Tenant or
justification for an abatement of Rent or any component thereof, or operate to
release Tenant from any of the Tenant's obligations hereunder. If the utilities
are shut off through the fault of the Landlord for more then three (3) days,
then rent shall xxxxx.
13.
16. Quiet Enjoyment
16.1 Tenant's Right to Enjoy Premises. Landlord agrees that as long as
the full and timely payment of the Rent shall occur and as long as Tenant keeps
and performs each of its obligations under this Lease, Tenant may peaceably and
quietly enjoy the Demised Premises subject, nevertheless, to all now existing or
hereafter created mortgages and/or encumbrances and ground and/or other leases
hereafter created to which this Lease may be or shall become subject and
subordinate, provided that Tenant's rights hereunder shall not be thereby
diminished nor obligations thereby increased. Subject to the foregoing, Landlord
agrees to warrant and defend Tenant in the quiet enjoyment and possession of the
Demised Premises during the term of this Lease insofar as any claim that may be
asserted through the Landlord.
17. Landlord's Insurance
17.1 Landlord's Obligation to Insure. Landlord covenants and agrees that
throughout the Term it will insure the Building and the Building Standard
Improvements installed therein at Landlord's expense, against damage by fire and
extended perils coverage, and will carry public liability and property damage
insurance, all in such reasonable amounts and with such reasonable deductions as
would be carried by a prudent owner of a similar property in the Metropolitan
area of Denver. Notwithstanding any contribution by Tenant to the cost of
insurance premiums, as provided herein, Tenant acknowledges that it has no right
to receive any proceeds from any such insurance policies carried by Landlord and
that such insurance will be for the sole benefit of Landlord with no coverage
for Tenant for any risk insured against.
17.2 Tenant's Obligation Re Insurability. If any insurance policy upon
the Building shall be cancelled or cancellation shall be threatened or the
coverage thereunder reduced or threatened to be reduced, or the cost thereof
increased or threatened to be increased, by reason of the appearance or
existence of a hazard or the use or occupation of the Demised Premises by
Tenant other then in accordance with Permitted Uses, or by any assignee or
subtenant of Tenant or by Tenant being upon the Demised Premises and, if Tenant
fails to remedy such condition giving rise to such event within forty-eight (48)
hours after notice thereof, Landlord may, at its option, enter upon the Demised
Premises and attempt to remedy such condition and Tenant shall forthwith pay the
cost thereof to Landlord as Additional Rent. The Landlord shall not be liable
for any damage or injury caused to any property of Tenant or of others located
on or in the Demised Premises as a result of such entry and resolution other
than may be occasioned by Landlord's breach of contract, negligence or violation
of Law. In the event that Landlord shall be unable to remedy such condition,
then Landlord shall have all the remedies provided for in this Lease relating to
a default by Tenant. Notwithstanding the foregoing provisions of this Section
17.2, if Tenant fails to remedy as aforesaid, Tenant shall be in default of its
obligations hereunder and Landlord shall have no obligation to attempt to remedy
such default. If during the Term, the cost of any insurance carried by Landlord
is increased due to the occupancy or activities of Tenant, Tenant will pay to
Landlord on demand, as Additional Rent, any such additional insurance premiums
or cost.
14.
18. Abatement of Rent
18.1 Abatement of Base Rent. In the event of fire or other casualty,
against which Landlord is insured, and which is not caused by the negligence of
Tenant, the Base Rent shall xxxxx in the proportion that the unusable portion of
the Demised Premises, as reasonably determined by Landlord, is of the total area
of the Demised Premises until the Demised Premises are rebuilt; and Landlord
agrees that it will with reasonable diligence repair the Demised Premises,
unless Tenant is obliged to repair under the terms hereof, or unless this Lease
is terminated as hereinafter provided; subject to the provisions of Sections
18.2.1 and 18.2.2 and 18.3. Any abatement hereunder shall continue as to all or
any portion of the Demised Premises only until and to the extent that same or
any portion thereof shall be repaired or restored so that it can be beneficially
used by Tenant.
18.2.1 Landlord's Right to Terminate in Respect of Demised Premises.
If the Demised Premises is damaged or destroyed by any cause whatsoever, and if,
in the reasonable opinion of Landlord, the Demised Premises cannot be rebuilt or
made fit for the purposes of Tenant within one hundred twenty (120) days after
the damage or destruction, within reasonable economic considerations as
determined by Landlord, Landlord instead of rebuilding or making the Demised
Premises fit for Tenant, may, at its option, terminate this Lease by giving to
Tenant within fifty (50) days after such damage or destruction, notice of
termination, and thereupon Rent and any other payments for which Tenant is
liable under this Lease (subject to Section 18.1) shall be apportioned based
upon, and paid to, the date of such termination and thereupon Tenant shall
immediately deliver possession of the Demised Premises to Landlord. Thereafter,
both parties hereto shall be free and discharged of all further obligations
hereunder, except for any liens which may thereafter be asserted against
property of Landlord by reason of Tenant's acts or omissions or any other
obligations of Landlord or Tenant, which by the terms of this Lease, either
explicitly expressed or implied, or otherwise, are intended to survive such
termination or expiration.
18.2.2 Landlord's Right to Terminate in Respect of Building.
Irrespective of whether the Demised Premises is damaged or destroyed, in the
event fifty percent (50%) or more of the area in the Building is damaged or
destroyed by any cause whatsoever, and if, in the reasonable opinion of
Landlord, the said area cannot be rebuilt or made fit for the purpose of the
tenants of such space within one hundred and eighty (180) days after the damage
or destruction, the Landlord may, at its option, terminate this Lease by giving
to Tenant, within fifty (50) days after such damage, notice of termination
requiring it to vacate the Demised Premises sixty (60) days after delivery of
the notice of termination and thereupon Rent and any other payments, if
otherwise payable hereunder,
15.
shall be apportioned and paid to the date on which possession is relinquished
and Tenant shall deliver possession of the Demised Premises to Landlord in
accordance with such notice of termination. This provision is without prejudice
to any other rights of either party.
18.3 Landlord's Right to Remedy. If the fire or other casualty causing
damage to the Demised Premises or other parts of the Building or any component
of the Project or of the Development shall have been caused by the negligence or
misconduct of Tenant, its agents, servants or employees, or of any other person
entering the Demised Premises under express or implied invitation of the Tenant,
such damage, at Landlord's election, shall be repaired by the Landlord at the
expense of the Tenant, pursuant to contracts approved by Tenant, which approval
shall not be unreasonably withheld, despite contrary provisions, if any,
appearing in this Lease and, in such event, there shall be no abatement of the
Rent.
18.4 Waiver of Subrogation. Anything in this Lease to the contrary
notwithstanding, Landlord and Tenant hereby waive and release each other to the
extent of insurance proceeds actually received, only, of and from any and all
rights of recovery, claim, action or cause of action, against each other, their
agents, officers and employees, for any loss or damage that may occur to the
Demised Premises, improvements to the Building or any other components of the
Project or of the Development, or personal property within the Building, by
reason of fire or the elements regardless of cause or origin, including
negligence of Landlord or Tenant and their agents, officers and employees.
Because this paragraph will preclude the assignment of any claim mentioned in it
by way of subrogation (or otherwise) to an insurance company (or any other
person), each party to this Lease agrees to immediately give to each insurance
company which has issued policies required under this Lease, written notice of
the terms of the mutual waivers contained in this paragraph, and to have the
insurance policies properly endorsed, if necessary, to prevent the invalidation
of the insurance coverages by reason of the mutual waivers contained in this
paragraph and to provide the other party hereto with a duplicate original of
such certificate.
MUTUAL COVENANTS
19. Condemnation
19.1 Eminent Domain or Sale in Lieu Thereof. If all of the Demised
Premises are taken by condemnation or by conveyance in lieu thereof (hereinafter
together referred to as a "taking"), this Lease shall terminate on the date when
the Demised Premises shall be so taken, and the Rent shall be apportioned as of
such date. If part of the Demised Premises, the Building or the Project is the
subject of a taking and the balance thereof is thereby not reasonably suitable
for the continued conduct of Landlord's or Tenant's business, taking into
consideration, without limitation, of the nature, size and scope of such
business immediately prior to the taking, then either party hereto may elect by
written notice to the other, within not less than twenty (20) days following
such taking, to terminate this Lease, whereupon all Rent and any other charges
hereunder shall be apportioned as of the date of such taking. If a taking
involves less than all of the Demised Premises and if neither party hereto
elects to terminate this Lease, then with respect to the portion not taken, the
Rent shall be reduced ratably and Landlord
16.
shall, within a reasonable time, restore the Demised Premises to an
architecturally complete unit. No part of any award shall belong to Tenant.
20. Substitution of Demised Premises
21. Subordination
21.1 Lease to Be Subordinate. This Lease is subject to and subordinate to
all first mortgages (including any deed of trust and mortgage securing notes,
bonds and all indentures supplemental thereto and to no other) and all renewals,
modifications, consolidations, replacements and extensions thereof of such
mortgages which may now or hereafter affect the Demised Premises or any part
thereof. This clause shall be self-operative and no further instrument of
subordination shall be required in order for the same to be effective.
Notwithstanding the foregoing, Tenant hereby appoints the Landlord its
irrevocable attorney-in-fact, coupled with an interest of the Tenant, for the
purpose of executing any acknowledgement or agreement required by any mortgagee,
lender or land lessor of Landlord, or the lessor which shall have purchased all
or a portion of land and/or the buildings in the Project and master leased the
same to the seller or some other party of Landlord. Notwithstanding the
foregoing, Tenant agrees that any holder of a first mortgage shall have the
right at any time during the term hereof to subordinate any rights of such first
mortgagee to the rights of the Tenant under this Lease or such terms and subject
to such conditions as the first mortgagee may deem appropriate. Tenant agrees to
execute a Subordination of Mortgage in form similar to that set forth in Exhibit
"D" attached hereto upon Landlord's request.
22. Default
22.1 Tenant Default. Upon the happening of any one or more of the
following events, Landlord may give notice to Tenant stating that this Lease is
terminated on a therein specified date and if such notice shall be given, this
Lease shall terminate on the date so stated if no other specific limitation is
elsewhere provided in this Lease.
(a) The failure of Tenant to timely and fully pay any installment of
Rent within ten (10) days of the due date, or other charge or money obligation
herein required to be paid by Tenant (hereinafter called a "Monetary Default");
17.
(b) The failure of Tenant to perform any one or more of its other
agreements under this Lease other than such as would result in a Monetary
Default (hereinafter called a "Non-Monetary Default") within ten (10) days after
written notice to Tenant specifying the agreement or agreements or covenant or
covenants Tenant has not performed; provided, however, that if a greater or
lesser time period is expressly provided with respect to a particular Non-
Monetary Default under any other provision of this Lease, such other time period
shall control;
(c) The levying of a writ of execution or attachment or assertion of
any lien of any type, on or against the property of Tenant or the Landlord (as a
result of Tenant's omission or commission) and the same has not been released or
discharged within forty-five (45) days thereafter;
(d) The interest of Tenant in this Lease or the Demised Premises or
any part thereof shall be taken upon execution or by other process of law
directed against Tenant, or shall be taken or subject to any attachment at the
instance of any creditor of or claimant against Tenant and said attachment shall
not be discharged within forty-five (45) days after the levy thereof;
(e) Tenant shall be involved in financial difficulties as evidenced
by (i) its admitting in writing its inability to pay debts generally as they
become due; or (ii) its making an assignment of all or a substantial part of its
property for the benefit of its creditors; or (iii) its seeking or consent to or
acquiescing in the appointment of a receiver or trustee for all or a substantial
part of its property or of the Demised Premises or of its interest in this
Lease; or (iv) the entry of a court order without its consent, which order shall
not have been vacated, set aside or stayed within forty-five (45) days from the
date of entry, appointing a receiver or trustee for all or a substantial part of
its property;
(f) The instituting of proceedings in a court of competent
jurisdiction for the involuntary bankruptcy, arrangement, reorganization,
liquidation or dissolution of Tenant under the Federal Bankruptcy Act (as now or
hereafter in effect) or any state bankruptcy or insolvency act, or for its
adjudication as a bankrupt or insolvent, or for the appointment of a receiver of
the property of Tenant, and said proceedings shall not have been dismissed, or
any receiver, trustee or liquidator appointed therein shall not have been
discharged within forty-five (45) days after the institution of said
proceedings;
(g) The instituting of proceedings for the voluntary bankruptcy
arrangement, reorganization, liquidation or dissolution of Tenant under the
Federal Bankruptcy Act (as now or hereafter in effect) or any state bankruptcy
or insolvency act or if Tenant shall otherwise take advantage of any state or
federal bankruptcy or insolvency act as a bankrupt or insolvent;
Notwithstanding any such termination, Tenant shall remain liable to
Landlord as hereinafter provided in Section 23.1 of this Lease.
18.
23. Remedies
23.1 General. If an event of default set forth in Section 22.1
occurs, Landlord shall have the following rights and remedies, in addition to
all other remedies at law or equity, and none of the following, whether or not
exercised by Landlord, shall preclude the exercise of any other right or remedy
whether herein set forth or existing at law or equity.
23.2 Self-Help. Landlord may, upon the happening of any one or more of
the above-mentioned events of default and whether or not Landlord has elected to
terminate this Lease as provided above, re-enter the Demised Premises with
process of law using such force as may be necessary, and remove all persons and
chattels therefrom or may, at Landlord's option, change the locks or otherwise
refuse Tenant access to or possession of the Demised Premises, and Landlord
shall not be liable for damages or otherwise by reason of any of its acts in
accordance herewith. Notwithstanding any termination of this Lease by Landlord,
Tenant shall remain liable for the Rent which would be payable for the balance
of the Lease Term had the Lease not been terminated, less such amounts as are
realized by Landlord in a reletting of the Demised Premises. It is further
understood that Tenant will pay, in addition to the Rent, such additional sums
as a court of competent jurisdiction may adjudge reasonable as attorneys' fees
in any suit or action instituted by Landlord to enforce the provisions of this
Lease, or the collection of the Rent or any component thereof due Landlord
hereunder provided Landlord prevails in such suit or action. Any property
belonging to Tenant or any person holding by, through or under Tenant, or
otherwise found upon the Demised Premises may be removed therefrom and stored in
any public warehouse at the cost and for the account of Tenant. If Tenant should
abandon, vacate or surrender the Demised Premises or be dispossessed by process
of law, any personal property left upon the Demised Premises may be deemed
abandoned, or, at the option of Landlord, on such re-entry Landlord may take
possession of any and all furniture, fixtures or chattels in or on said Demised
Premises and sell the same for the best price that can be obtained at public or
private sale and out of the money arising therefrom, pay the amount due
Landlord, and all costs resulting from the execution of the provisions hereof,
paying the surplus, if any, to Tenant. Tenant expressly releases Landlord and
its successors and assigns of all claims which might exist by reason of any
termination of or re-entry under this Lease and removal of Tenant's property, or
sale thereof pursuant to the provisions of this paragraph 23.2 and hereby waives
any and all rights of redemption under any statute or rule of law in effect at
the time of the termination or re-entry.
23.3 Cure by Landlord. In the event of any default hereunder by Tenant,
Landlord may immediately or at any time thereafter, without notice, cure the
same for and on the account and at the expense of Tenant. If Landlord at any
time, by reason of such breach, is compelled to pay, or elects to pay, any sum
of money or do any act which will require the payment of any sum of money, or is
compelled to incur any expense, including reasonable attorneys' fees in
obtaining advice, instituting or prosecuting any action or proceeding to enforce
Landlord's rights hereunder, the sum so paid by Landlord, with interest thereon
at annual rate of default interest as provided in paragraph 33.1, from the date
of payment thereof, shall be deemed to be Additional
19.
Rent hereunder and shall be due from Tenant to Landlord within ten (10) days
after demand by Landlord.
23.4 Right to Re-Let. Upon the happening of any event of default,
Landlord may, whether or not Landlord has elected to terminate this Lease as
above provided, re-enter and relet the Demised Premises, or any part thereof,
for such term or terms and at such rent or rentals and upon such other terms and
conditions as Landlord may deem advisable, with the right to make alterations
and repairs. No such re-entry or taking of possession shall be construed as an
election on Landlord's part to terminate this Lease unless a written notice of
termination be given to Tenant as heretofore provided. Tenant shall, in the case
of any such reletting, remain liable to Landlord for damages for breach of
Tenant's covenants under this Lease in any amount equal to the Rent which would
be payable hereunder for the balance of the Term, plus all costs, interest, and
expenses incurred by Landlord in connection with re-entry and the repair,
renovation, brokers' commissions, attorneys' fees and other charges incurred in
connection with the remodeling and/or repair of the Demised Premises and the
reletting thereof, less the net avails, if any, of any such reletting.
24. No Implied Surrender or Waiver
24.1 Negation of Implied Waiver. No act or thing done by Landlord or its
agents during the term hereof shall be deemed an acceptance of a surrender of
the Demised Premises and no agreement to accept the surrender of the Demised
Premises shall be valid unless the same be made in writing and subscribed by
Landlord. The mention in this Lease of any particular remedy shall not preclude
Landlord from any other remedy Landlord might have, either in law, in equity, or
elsewhere provided in this Lease, nor shall the waiver of or redress for any
violation of any agreement, covenant or condition in this Lease contained or any
of the Rules and Regulations or hereafter adopted or modified by Landlord
prevent a subsequent act, which would have originally constituted a violation,
from having all the force and effect of any original violation. The receipt by
Landlord of Rent or of any component thereof with knowledge of the breach of any
agreement or covenant in this Lease shall not be deemed a waiver of such breach.
The failure of Landlord to enforce any of the Rules and Regulations against
Tenant and/or any other tenant in the Building, the Project or the Development
shall not be deemed a waiver of such Rules and Regulations or any part thereof.
The receipt by the Landlord of Rent or any component thereof from any assignee,
subtenant or occupant of said Demised Premises or any part thereof shall not be
deemed a waiver of the covenants in this Lease relating to assignment and
subletting or an acceptance of the assignee, subtenant or occupant as Tenant, or
a release of Tenant from the further observance or performance by Tenant of the
covenants in this Lease. No provisions of this Lease shall be deemed to have
been waived by Landlord unless such waiver shall be in writing signed by
Landlord. No employee of Landlord or its agents shall have any power to accept
the surrender of the keys to the Demised Premises prior to the termination of
this Lease and the delivery of keys to any employee or agent of Landlord shall
not operate as a termination of this Lease or a surrender of the Demised
Premises. No payment by Tenant, or receipt by Landlord, of a lesser amount than
the Rent herein stipulated shall be deemed to be
20.
other than an account of the earliest accruing Rent, nor shall any endorsement
or statement on any check or any letter accompanying any check, or payment as
Rent, be deemed an accord and satisfaction, and Landlord may accept such check
or payment without prejudice to Landlord's right to recover the balance of such
rent or pursue any other remedy available to Landlord.
25. Holding Over, Tenancy Month-to-Month
25.1 Holding Over. If after the expiration of the Term, Tenant shall
remain in possession of the Demised Premises and continue to pay rent, without
any written agreement as to such holding, then such holding shall be deemed and
taken to be a holding upon a tenancy for month-to-month, subject to all the
terms and conditions hereof on the part of Tenant to be observed and performed
and at a monthly rental equivalent to one hundred fifty percent (150%) of the
monthly installments hereinabove provided for, including, without limitation,
all applicable Additional Rent, all of which shall be payable in advance on the
first day of each calendar month.
26. Payments after Termination
26.1 No Reinstatement. No payments of money by Tenant to Landlord after
the termination of this Lease, or after the giving of any notice (other than a
Demand for Payment of Rent) by Landlord to Tenant, shall reinstate, continue or
extend the term of this Lease or affect any notice given to Tenant prior to the
payment of such money, it being agreed that after the service of notice or the
commencement of an action or after final judgment granting Landlord possession
of said Premises, Landlord may receive and collect any rent or any other sums of
money due under the terms of this Lease, and the payment of the same shall not
waive said notice or in any manner affect any pending action or any judgment
obtained.
27. Rights of Mortgagee/Purchaser
27.1 Attornment. Tenant accepts this Lease subject and subordinate to any
recorded first mortgage or deed of trust presently existing and/or hereafter
created by or through the Landlord and asserted against the Demised Premises,
Building, Project or Development provided in Section 21.1. If the interests of
Landlord under this Lease shall be transferred by reason of foreclosure or other
proceedings of enforcement of any mortgage or deed of trust on the Demised
Premises or as a result of the enforcement of a conditional assignment of this
Lease as collateral for Landlord's debt, or otherwise, Tenant shall be bound to
the transferee (sometimes called the "Purchaser") under the terms, covenants and
conditions of this Lease for the balance of the term remaining, and any
extensions or renewals, with the same force and effect as if the Purchaser were
Landlord under this Lease, and Tenant agrees to attorn to the Purchaser,
including the mortgagee under any such mortgage, if it be the Purchaser, as its
landlord, the attornment to be effective and self-operative without the
execution of any further instruments upon the Purchaser succeeding to the
interest of Landlord under this Lease. The respective rights and obligations of
Tenant and the Purchaser upon the attornment, to the extent of the then
remaining balance of the
21.
term of this Lease, and any extensions and renewals, shall be and are the same
as those set forth in this Lease. Notwithstanding the foregoing, the Purchaser,
if it be a mortgagee shall only be obliged to perform those obligations of
Landlord under this Lease to the extent they accrue during its ownership.
Moreover, upon transfer of Landlord's interest hereunder, by operation of law or
otherwise, neither the owner of record for whom Real Property Systems, Inc. is
acting as independent contractor hereunder, nor Real Property Systems, Inc.
shall have any further liability hereunder.
28. Security Deposit
28.1 Security for Tenant's Performance. Tenant shall keep on deposit with
Landlord at all times during the term of this Lease, the sum of Four Thousand
Seventeen and 87/100 Dollars ($4,017.87), as security for the payment by Tenant
of the rent and any other sums due under this Lease and for the faithful
performance of all the terms, conditions and covenants of this Lease. See
Addendum regarding Security Deposit. If at any time during the term of this
Lease, Tenant shall be in default in the performance of any provision of this
Lease, Landlord may but shall not be required to use any such deposit, or so
much thereof as Landlord deems necessary or proper, in payment of any Rent or
any other sums due under this Lease which are in default, in reimbursement of
any expense incurred by Landlord and in payment of the damages of whatsoever
kind, nature or description incurred by Landlord by reason of Tenant's default,
or at the option of Landlord, the same may be retained by Landlord as liquidated
damages. In such event, Tenant shall, on written demand of Landlord forthwith
remit to Landlord a sufficient amount in cash to restore such deposit to its
original amount. In the event such deposit has not been utilized as aforesaid,
such deposit, or as much thereof as has not been utilized for such purposes,
shall be refunded to Tenant, without interest upon full performance of all of
the obligations under this Lease to be performed by Tenant. Landlord shall have
the right to commingle such deposit with other funds of Landlord. Landlord shall
deliver the Security Deposit to the purchaser of Landlord's interest in the
Demised Premises in the event such interest be sold, and thereupon, Landlord and
the owner of record shall be discharged from further liability with respect to
such deposit. Notwithstanding the above provisions of this paragraph, if claims
of Landlord exceed the Security Deposit, Tenant shall remain liable for the
balance of such claims and Landlord shall not deliver the Security Deposit to
Tenant.
29. Authority
29.1 Authority to Execute. Tenant agrees to provide Landlord, within ten
(10) working days after the execution date hereof, with certified copies of
duly executed and notarized documents authorizing the execution of this Lease by
those parties who executed it on Tenant's behalf and, in conjunction therewith,
provide evidence reasonably satisfactory to Landlord that Tenant is duly
organized, in good standing in its state of incorporation and in Colorado and if
a foreign corporation, that it is authorized to transact business under the laws
of the State of Colorado.
22.
29.2 Appointment of Landlord's Representative. Landlord hereby appoints
Real Property Systems, Inc., as its representative for the purpose of
negotiating the within Lease on Landlord's behalf as well as managing the
project of which the Demised Premises are a part. Landlord shall have the right
to designate such other representatives from time to time, upon giving Tenant
notice as provided herein.
30. Notices
30.1 Giving of Notice. Any notice, request, statement or other writing,
pursuant to this Lease, shall be deemed to have been given if sent by registered
prepaid post or certified mail, return receipt requested, or delivered by hand,
as follows:
To Landlord: c/o Real Property Systems, Inc.
00000 X. Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxx
To Tenant: at the Demised Premises
With a copy also
sent to: Xxxxx Xxxxxxx
Cell Pathways, Inc.
0000 X. Xxxx Xxxx
Xxxxxx, XX 00000
and such notice shall be deemed to have been received by the Landlord/Tenant, as
the case may be, on the third full business day after the date on which it shall
have been postmarked.
31. Entire Lease Agreement
31.1 Integration. Tenant acknowledges that there are no covenants,
representations, warranties, agreements or conditions expressed or implied,
collateral or otherwise forming part of or in any way affecting or relating to
this Lease save as expressly set out in this Lease and that this Lease,
including the Exhibits attached hereto, constitutes the entire "Lease" and
agreement between Landlord and Tenant and may not be modified except as herein
explicitly provided or except by agreement in writing of equal formality hereto
executed by Landlord and Tenant. Nothing in this Lease shall be deemed to create
any relationship between the parties hereto other than Landlord and Tenant.
32. Captions and Exhibits
32.1 Headings. The captions appearing within the body of this Lease have
been inserted as a matter of convenience and for reference only and in no way
define, limit or enlarge
23.
the scope or meaning of this Lease or of any provision hereof. The Exhibits to
the Lease are as follows:
Exhibit "A" Legal Description and Project Plan
Exhibit "B" Work Letter Agreement
Exhibit "B-1" Estoppel and Commencement Date Certificate
Exhibit "B-2" Space Plan
Exhibit "B-3" Deleted Intentionally
Exhibit "C" Rules and Regulations
Exhibit "D" Subordination of Mortgage
Exhibit "E" Hazardous Materials
33. Interest on Past Due Obligations
33.1 Interest. Any amount due from Tenant to Landlord hereunder which is
not paid when due shall bear interest at the rate of six percent (6%) per annum
plus the Prime Rate from time to time charged by Colorado National Bank of
Denver, Colorado (herein sometimes called the "default rate") from the due date
until paid, unless otherwise specifically provided herein, but the payment of
such interest shall not excuse or cure any default by Tenant under this Lease.
Any change in the default rate resulting from a change in said Prime Rate shall
be effective as of the first day of the month immediately following any relevant
change in such Prime Rate.
34. Rules and Regulations
34.1 Promulgation of Additional Rules and Regulations. The Landlord
may, from time to time, promulgate such Rules and Regulations as, in Landlord's
opinion, are reasonable and/or necessary and Tenant, on behalf of itself, its
employees, agents and any others permitted by Tenant to occupy or enter the
Demised Premises, the Building or the balance of the Project or the Development
who will at all times abide by said Rules and Regulations which shall be deemed
effective and binding upon such parties upon notice being given pursuant to
Section 30.1, provided, that such rules and regulations shall not interfere
with Tenant's Permitted Uses, as set forth in Section 4.1 hereof. A material
default in the full and timely performance and observance of such Rules and
Regulations in effect from time to time shall constitute a material default
hereunder.
24.
35. Severability
35.1 Provisions Deemed Severed. Landlord and Tenant agree that all of
the provisions of this Lease are to be construed as covenants and agreements as
though the words importing such covenants and agreements were used in each
separate paragraph hereof. Should any provision or provisions of this Lease be
illegal or not enforceable it or they shall be considered separate and deemed
severed from this Lease and the remaining provisions hereof shall remain in
force and be binding upon the parties hereto as though the said provision or
provisions had never been included.
36. Governing Law
36.1 Interpretation and Construction. The parties acknowledge that
this Lease is to be interpreted and construed in accordance with the laws of the
State of Colorado. Pronouns of the masculine gender shall be deemed
to include the feminine gender; and singular pronouns shall be deemed to include
the plural and vice versa, where the context shall require. The terms
"mortgage," "mortgagor" and "mortgagee" shall be deemed to include "deed of
trust," "grantor," "trustee" and "beneficiary," respectively, where the context
shall require. The terms "herein," "hereof" and words of similar import shall
be deemed to refer to this entire Lease, rather than just the particular
provisions in which such terms appear, unless the context shall otherwise
require.
37. Time
37.1 Time and Manner of Execution. Notwithstanding any provision to the
contrary herein set forth, unless this Lease is executed by an officer of
Landlord and by the Tenant hereinabove named and returned to WRC PROPERTIES,
INC. on or before the ___day of ________, 19__, then this Lease shall be null
and void and of no binding effect.
37.2 Time is of the Essence. Subject to Section 15.2 hereof, time is of
the essence in the performance of all of the terms and provisions of this Lease.
38. Counterparts
38.1 Execution of Counterparts. This Lease may be executed in the form of
counterparts, in which event all such counterparts shall be deemed to be one and
the same instrument.
39. Successors and Assigns
39.1 Binding Effect. Except as otherwise provided in this Lease, all
terms, conditions and covenants to be observed and performed by the parties
hereto shall be applicable to and binding upon the respective heirs, personal
representatives, successors, assigns and legally appointed representatives.
25.
In Witness Whereof, the parties hereto have caused this Lease to be
executed as of the day and year first above written.
CELL PATHWAYS, INC., WRC PROPERTIES, INC.
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxxxx X. Xxxxxxxx
------------------------------- --------------------------------
Its: President Its: Assistant Secretary
------------------------------ -------------------------------
("Tenant") ("Landlord")
26.
Acknowledgment by Corporate Tenant
STATE OF COLORADO )
) ss.
County of Denver )
The foregoing instrument was acknowledged before me this 27th day of
May, 1993, by Xxxxx X. Xxxxxxx, as President of Cell Pathways.
My commission expires: 7/26/94
Witness my hand and official seal.
/s/ Xxxxx X. Xxxxxxxx
-------------------------------
Notary Public
Address: 000 X. Xxxxxx Xx. #000
-----------------------
Xxxxxx, XX 00000
-------------------------------
Acknowledgment by Landlord
STATE OF )
) ss.
County of )
The foregoing instrument was acknowledged before me this __ day of
____________, 19__, by___________________________________, as __________________
of WRC Properties, Inc.
My commission expires:___________________________
Witness my hand and official seal.
-------------------------------
Notary Public
Address:
-----------------------
-------------------------------
27.
ADDENDUM NUMBER ONE
This Addendum Number One ("Addendum") is attached to and hereby forms a
part of that certain Lease dated of even date herewith (the "Lease"), wherein
WRC Properties, Inc. is landlord ("Landlord") and Cell Pathways Inc., a Delaware
corporation, is tenant ("Tenant"), with respect to certain space located at 0000
Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000, more commonly known as
East by Southeast ("Property").
WHEREAS, the parties desire to supplement the Lease and make certain
revisions thereto with respect to certain matters and agreements contained
therein.
NOW THEREFORE, in consideration of their mutual covenants and conditions
contained herein, and for such other good and valuable considerations, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Rent Abatement/Escalations. Provided Tenant is not in default of any term
or condition of the Lease and that an event has not occurred which, with the
giving of notice or passage of time, would constitute a default, Tenant's
obligation for payment of the first six monthly installments of Net Rent from
October 1, 1993 through March 31, 1994 in the aggregate amount of $14,868.75
shall be abated. (See below.) In the event Tenant fails to perform its
obligations under the Lease, Landlord shall be entitled to recover from Tenant
all amounts of Base Rent which have been abated pursuant to this paragraph.
Rents payable are adjusted by Rent Abatement/Escalations during the Term of the
Lease, are as follows:
Rent Adj./Addtl. Rent Adj./Addtl. Total Rent/
Months Net Rent/Sq.Ft. Net Rent/Month Rent/Sq. Ft. (a) Rent/Month (a) Month
----------- --------------- -------------- ---------------- -------------- -----------
1-3 -0- -0- $2.33* $ 769.87 $ 769.87
4-6 -0- -0- $2.33** $1,539.74 $1,539.74
7-48 $3.75*** $2,478.13 $2.33 $1,539.74 $4,017.87
49-66 $4.25 $2,808.54 $2.33 $1,539.74 $4,348.28
Months 1-3 reflect payment of operating expenses on 3,965 sq.ft. only.
** Months 4-6 reflect payment of operating expenses on 7,930 sq.ft. only.
*** Base Rent Breakdown: Represents $3.50 per sq.ft. Net Rent plus $.25 (HVAC
maintenance and repair).
(a) Subject to Operating Cost Adjustments per paragraph 3.2 of the Lease.
2. Lease Renewal. Provided Tenant is not in default of any term or condition
of the Lease and that an event has not occurred which, with the giving of notice
or passage of time, would constitute a default, Tenant shall be entitled to
renew this lease ("Option to Renew") for one (1) successive additional term of
five (5) years ("Option Term") on the following terms and conditions:
1.
(a) Tenant shall notify Landlord in writing of Tenant's election to
exercise the Option to Renew on or before one hundred eighty (180) days prior to
the expiration of the Lease Term. Tenant shall execute an Amendment to the
Lease evidencing such renewal within fifteen (15) days of delivery thereof to
Tenant by Landlord.
(b) Tenant's leasing of the Premises during the Option Term shall be upon
the same terms and conditions as set forth in the Lease, with the exception of
Base Rent, and except for any provision hereof granting Tenant an option to
renew, tenant finish allowance or other concession.
(c) The Net Rent during the Option Term shall be at the then market rate
for the Building. In no event shall the Net Rent be less than the Net Rent
payable during the last year of the Lease, nor shall the Net Rent exceed $7.00
per square foot. Within fifteen (15) days after receipt by Landlord of Tenant's
notice of exercise of the applicable Option to Renew, Landlord shall notify
Tenant, in writing, of the applicable Net Rent rate to be in effect during such
Option Term. Tenant shall have fifteen (15) days thereafter within which to
notify Landlord, in writing, of Tenant's exercise of the Option to Renew at the
stated rental, and Tenant shall execute an Amendment of the Lease evidencing
such renewal within fifteen (15) days after delivery thereof to Tenant from
Landlord.
(e) Failure of Tenant to exercise the Option to Renew in the time and
manner set forth herein shall result in automatic termination of the Option to
Renew.
(f) The Option to Renew may not be exercised by an subtenant or assignee
of Tenant, and is not transferable by Tenant to any other party.
(g) The Option to Renew shall be subordinate and subject to any rights or
options on such space in favor of any other tenants in the Building existing on
the date hereof.
3. First Right of Opportunity. Provided that Tenant is not in default of any
term or condition of the Lease and that an event has not occurred which, with
the giving of notice or passage of time would constitute a default, Tenant shall
have the right of first opportunity ("Right of First Opportunity") to lease
those certain adjacent spaces in the Building, commonly known as Xxxxx 000,
Xxxxx 000, and Suite 124, and identified on Exhibit A attached hereto and
incorporated herein by this reference ("Adjacent Space"), on the following terms
and conditions:
(a) Tenant may exercise the Right of First Opportunity at any time by
written notice to Landlord prior to Tenant's receipt of a Third Party Notice to
the extent that such space is available or by written notice thereof to Landlord
by execution of a lease agreement or amendment hereto, as appropriate, within
fifteen (15) days thereafter. In the event Tenant exercises the Right of First
Opportunity prior to receipt of a Third Party Notice, Tenant shall be obligated
to lease all Adjacent Space of the designated suite, at the then current market
rate for comparable space and lease terms in the Building, and in no event shall
the per square foot Base Rent payable with respect to the Adjacent Space be less
than the per square foot Base Rent payable for the Premises. Provided that if
Tenant elects the First Right of Opportunity within the first twelve (12) months
of the Original Lease commencement date, then the Net
2.
Rent shall be $3.75 NNN, and the Landlord shall furnish a paint and carpet
allowance not to exceed $2.00 per square foot.
(b) The Right of First Opportunity shall not be exercised by any subtenant
or assignee, and is not transferable to any other party.
(c) Tenant shall accept such Adjacent Space leased pursuant to this Right
of Opportunity in its then existing "as is" condition and Landlord shall have no
obligation with respect to performing any tenant improvements or remodeling work
with respect to such space, except as expressly stated herein.
(d) The Right of First Opportunity shall be subordinate and subject to any
rights or options on such space in favor of any other tenants in the Building
existing on the date hereof.
4. HVAC Maintenance and Repair. Landlord agrees to maintain and repair the
HVAC system for an additional $.25 per square feet per year, which has been
included in the Net Rent per square foot specified in Paragraphs 1 and 3(a) of
the Addendum.
5. Intentionally deleted.
6. Tenant Improvements. Landlord shall provide a paint and carpet allowance
not to exceed $2.00 per square foot ($15,860.00). Tenant shall be reimbursed
for paint and carpet (not to exceed $2.00 per rentable square foot) upon
completion of improvements, presentation of original invoices, and inspection
and approval by property manager. In the event Tenant defaults, all Tenant
Improvements and fixtures in the suite shall become the property of the
Building.
7. Possession or Delay in Commencement or Term. If Landlord cannot deliver
possession of the Demised Premises to Tenant at the commencement of the term
hereof, this Lease shall not be void or voidable, nor shall Landlord be liable
to Tenant for any loss or damage resulting therefrom, but in that event the term
of this Lease shall be amended to commence on the date when Landlord can deliver
possession and the expiration date shall be extended accordingly. If, as a
result of such postponement, the term would begin other than on the first day of
the month, the commencement date shall be further postponed until the first day
of the following month, but Tenant shall pay rent prorated for such partial
month occupancy in advance. All other terms and conditions of this Lease shall
be in force and effect during such partial month. Upon Landlord's request, the
parties agree to execute a writing in the form of Exhibit B-1, attached hereto
and expressly incorporated herein by this reference, to record the commencement
and expiration dates hereof.
8. See Rider to Addendum.
9. Tenant hereby agrees to and accepts the rules and regulations as stated in
Exhibit "C", except as expressly modified herein.
3.
10. Incorporation of Lease Terms; Conflict. With the exception of those
matters set forth in this Addendum, Tenant's leasing of the Property during the
Term of the Lease shall be subject to all terms, covenants and conditions of the
Lease. In the event of any express conflict or inconsistency between the terms
of this Addendum and the terms of the Lease, the terms of this Addendum shall
control and govern. Except as expressly modified by this Addendum, all other
terms and conditions of the Lease are hereby ratified and affirmed.
In Witness Whereof, the parties hereto have executed this Addendum as of
the even date and year as the Lease.
"LANDLORD" "TENANT"
WRC PROPERTIES, INC. CELL PATHWAYS, INC.,
a Delaware corporation
By: /s/ Xxxxxxxx X. Xxxxxxxx By: /s/ Xxxxx X. Xxxxxxx
---------------------------- ----------------------------
Its: Assistant Secretary Its: President
--------------------------- ---------------------------
4.
RIDER TO ADDENDUM
8. Further Representations and Understandings. Anything in the Addendum or the
Lease to the contrary notwithstanding, Landlord further represents and agrees
that: the Demised Premises comprise 7,930 square feet, Suites 124, 126 and 130
comprise the square footage shown on Exhibit "A", and the total square footage
of all buildings in the Project currently comprises 144,148 square feet; that
the Demised Premises, and all other buildings in the Project to the extent
material to Tenant's occupancy of the Demised Premises, are in material
compliance with all applicable laws, regulations, ordinances and codes; that the
Demised Premises are generally in suitable condition for occupancy for the
Permitted Uses, subject to alterations and improvements suggested by Tenant;
that, unless waived in writing by both Landlord and Tenant, the Commencement
Date shall not occur earlier than the date on which the Demised Premises are in
compliance with and licensed under all laws, regulations, codes and ordinances
materially necessary to permit occupancy of the Demised Premises for the
Permitted Uses; that the Tenant shall not be obliged to make payments for items
which are duplicative of what the Tenant is paying for in Rent; and that Tenant
shall not be liable for, or responsible to indemnify respect of, matters arising
from Landlord's breach of contract, negligence, intentional tort or violation of
law, regulation or ordinance; and that, anything in the present or future Rules
and Regulations to the contrary notwithstanding, Tenant shall be permitted to
house laboratory animals and otherwise engage in the Permitted Use of conducting
pharmaceutical and biotechnical research and development in the Demised
Premises.
Exhibit "A" to Lease
Legal Description and Project Plan
Attached to and incorporated by reference in that certain Lease dated
August 9, 1993, between WRC Properties, Inc. ("Landlord") and Cell Pathways
Inc., a Delaware corporation ("Tenant"), showing outlined in red Suite No. 110
in the building addressed as 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000,
and described as that tract of land being Xxxxx 0, Xxx 0, of "East by Southeast
Subdivision, Filing No. 2" in Township 4 South, Range 67 West of the Sixth
Principle Meridian, City of Aurora, County of Arapahoe, State of Colorado.
Beginning at the Southeast corner of said Xxxxx 0, Xxx 0, said beginning
point being also a point on the West right-of-way line of Interstate
Highway 225; thence Westwardly along the South line of said Xxxxx 0, Xxx 0,
Xxxxx 00(xxxxxxx)00'00" Xxxx 532.92 feet to a point on the East line xx
Xxxxx Xxxxxxx Xxxxxx; thence Northwardly along said East line along a curve
to the left, whose radius point bears South 73(degrees)23'47" West 1,035
feet from the last mentioned point, a distance of 485.66 feet to a point;
thence North 89(degrees)39'07" East of 745.59 feet to a point on the
aforesaid Xxxx xxxx xx Xxxxxxxxxx Xxxxxxx 000; thence Southwardly along
said West line South 13(degrees)29'37" East 21.80 feet and South
3(degrees)20'44" East 397.32 feet to the point of beginning and containing
5.942 acres.
[Drawing of property description]
First Rights of Opportunity
Suite 124, 5,626 square feet
Suite 126, 4,654 square feet
Suite 130, 8,550 square feet
Exhibit B-1
Estoppel and Commencement Date Certificate
This Estoppel and Commencement Date Certificate ("Certificate") is executed
this _____ day of _____________, 19___, by WRC Properties, Inc. ("Landlord") and
____________ ("Tenant") with respect to and forming a part of that certain
Office Building Lease ("Lease") dated _______________, 19____ for the premises
commonly known as _______________________________, Colorado ("Premises").
WITNESSETH
Whereas, the parties desire to reaffirm and/or amend and certify to certain
provisions of the Lease; and
Whereas, the parties desire that the matters set forth herein be conclusive
and binding on the parties.
Now, therefore, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. The Lease Commencement Date is deemed and agreed to be _______________,
19____, and the Lease Termination Date is agreed and deemed to be _____________,
19____, unless sooner terminated, as provided therein.
2. Tenant's first installment of Base Rent in the amount of
__________________________ Dollars ($________) for the period of ______________,
19____, is due on/was paid on _______________, 19____.
3. Tenant's first installment of Tenant's Prorata Share of Operating
Expenses in the amount of __________________________ Dollars ($________) is due
on/was paid on _______________, 19____.
4. By execution hereof, Tenant acknowledges and agrees that all
improvements or other work required of Landlord has been satisfactorily
performed and Tenant hereby accepts the Premises in full compliance with the
terms and conditions of the Lease.
5. Except as may be amended herein, all terms and conditions of the Lease
shall continue in full force and effect and are hereby republished and
reaffirmed in their entirety.
6. This Certificate shall be binding upon and may be relied upon by the
parties hereto and their respective legal representatives, successors, and
assigns.
1.
In Witness Whereof, the parties have executed this Certificate as of the
day and year first above written.
Landlord
WRC Properties, Inc.
By: ________________________
Title: _____________________
Tenant:
Cell Pathways, Inc.
a Delaware corporation
By: ________________________
Title: _____________________
2.
Exhibit "B-2" to
Work Letter Agreement
Space Plan
Attached to and incorporated by reference in that certain Work Letter
Agreement dated __________________, 19___, between WRC Properties, Inc.
("Landlord") and Cell Pathways Inc., a Delaware corporation ("Tenant").
(Space plan mutually agreed upon by Landlord and Tenant to be attached.)
Exhibit B-2
[Space plan]
Exhibit "C"
Rules and Regulations
It is further agreed that the following Rules and Regulations shall be and
are hereby made a part of this Lease and Tenant agrees that its employees and
agents, or any others permitted by Tenant to occupy or enter said Demised
Premises, will at all times abide by said rules and regulations and that a
default in the performance and observance thereof shall operate the same as any
other defaults in the Lease to which this Exhibit "C" is attached and
incorporated by reference:
1. The sidewalks, entries, passages, corridors and stairways of the
Project and the Development shall not be obstructed by Tenant, or its agents or
employees, or used for any purpose other than ingress and egress to and from the
Demised Premises.
2. In order to create conformity and order of the Tenant's identification
in the Project and the Development, no sign, advertisement or notice shall be
inscribed, painted or affixed on any part of the inside or outside of the
Building or elsewhere in the Project and the Development unless the color,
material, design, size, style, and location thereof, shall be first designated
by Landlord, and such signs shall be promptly erected and maintained by Tenant,
at its expense. Landlord shall have the right to remove all non-permitted signs
without notice to Tenant, but at the expense of Tenant.
3. Tenant shall not do or permit anything to be done in, on or about the
Demised Premises, the Project or the Development, or bring or keep anything
therein, which will in any way obstruct or interfere with the rights of other
tenants in the Project or the Development, or in any way injure or annoy them,
or potentially do so, which shall include, by way of illustration only, the
placing, installing or operating in, on or around the Demised Premises or
elsewhere in the Project or the Development, any engine, stove or machinery, or
conduct mechanical operations or xxxx foods or materials, or place or use in, on
or about the Demised Premises any explosives, gasoline, kerosene, oil, acids,
caustics or any inflammable, explosive or hazardous material without the prior
written consent of Landlord, which may arbitrarily be withheld.
4. Water closets and other water, electric or heating/air
conditioning/venting fixtures shall not be used for any purpose other than that
for which the same are intended, and any damage resulting to the same from
misuse on the part of Tenant, its agents, invitees or employees, or any defacing
or other damage to any part of the Development by Tenant, its agents, invitees
or employees, shall be paid for, upon demand, by Tenant. No person shall waste
water by interfering with or adjusting faucets. Moreover, no electric floor
space heaters shall be allowed without the prior written consent of Landlord.
5. No birds, reptiles or animals shall be allowed in any part of the
Demised Premises, the Building, the Project or the Development. No person shall
disturb the occupants of any of the foregoing by the use of any radio or musical
instrument or by the making of loud or irritating noises, or any unauthorized or
unreasonable use (e.g., lodging or sleeping quarters).
1.
6. Bicycles or other vehicles shall be stored only in areas periodically
designated by Landlord for such purposes, if any.
7. Tenant shall not allow anything to be thrown by Tenant, its agents,
employees or those in the Project or the Development at the express or implied
invitation of Tenant, out of the windows or doors and the front door of the
Demised Premises shall be kept closed at all times, except as provided in the
immediately succeeding sentence. Except in case of fire or other emergency,
Tenant shall not open any outside window or maintain an open door which may
interfere with the proper functioning of the air-conditioning, heating or
ventilation systems in the Demised Premises or the Building.
8. No additional lock or locks or substitutions for existing locks shall
be installed by or on behalf of Tenant on any door in the Building unless
written consent of Landlord shall first have been obtained. Two keys to each of
the exterior doors of the Demised Premises will be furnished at the cost of and
by Landlord, and neither Tenant, its agents or employees, shall have any
duplicate key made. Additional keys will be furnished by Landlord at a nominal
charge to Tenant. At the termination of this tenancy, Tenant shall promptly
return to Landlord all keys to the Demised Premises, and if same are not so
returned, Landlord may change the locks to the Demised Premises and the cost of
same and keys therefor may be deducted from the Security Deposit.
9. Any painting, remodeling, decorating of or repairs to the Demised
Premises as may be agreed to be done by and at the expense of Landlord shall be
done during regular working hours; should Tenant desire such work done on
Saturdays, Sundays, holidays or other than during regular working hours, Tenant
shall pay, on demand, for the extra cost thereof.
10. Canvassing, soliciting, petitioning and peddling in or about the
Building and the balance of the Project and the Development are prohibited, and
Tenant shall timely and faithfully cooperate with Landlord in the enforcement of
this provision.
11. Tenant will refer all contractors, contractor's representatives and
installation technicians, rendering any service on or to the Demised Premises
for Tenant, to Landlord for its approval and supervision before performance of
any contractual service. This provision shall apply to all work performed in the
Building including installation of telephones, telegraph equipment, electrical
devices and attachments and installations of any nature affecting floors, walls,
woodwork, trim, windows, ceilings, equipment of any other physical portion of
the Building.
12. Landlord will not be responsible or liable for lost, stolen or
mysteriously disappearing personal property, equipment, money or jewelry from
Tenant's area or common areas (e.g., parking or trash areas).
13. Employees or agents of Landlord shall not receive or carry messages or
packages for or to any Tenant or other person, nor contract with or render free
or paid services to any Tenant or Tenant's agents, employees or invitees.
2.
14. Landlord will not permit entrance to the Demised Premises by use of
pass key controlled by Landlord, to any person at any time without written
permission by Tenant, except employees, contractors or service personnel
directly supervised by Landlord.
15. The Tenant shall provide at its expense within a reasonable time after
the execution of the Lease such signs of design, materials, content and location
as Landlord shall approve or establish from time to time in order to have
uniformity of Tenant's identification throughout the Project.
16. Tenant, its agents, employees, and invitees, shall be entitled to park
in the common parking area in the Project. Tenant agrees that no vehicles
belonging to, or subject to the control of, Tenant, its employees, agents or
invitees shall be allowed to remain stored in any such parking area. For the
purposes of this paragraph, "stored" shall mean remaining stationary for a
period longer than three consecutive days. Landlord reserves the right to
determine in its absolute discretion whether parking facilities are becoming
crowded and, in such event, to allocate parking spaces or areas of parking to
Tenant and other tenants. No automobiles or other vehicles shall be serviced or
washed upon the Project or the Development.
17. Tenant shall cooperate with Landlord in a timely and faithful manner
in keeping and maintaining common areas of the Project and the Development in a
clean, sightly, orderly and well-groomed condition and shall not remove
receptacles from designated trash areas.
18. The Landlord reserves the right to make such other and further
reasonable rules and regulations as in its judgment may, from time to time, be
required or desirable for the safety, security, care and cleanliness of the
Project and the Development and preservation of good order therein, it being
Landlord's intent that same be maintained and operated in a first-class manner.
19. Wherever there now is, or shall hereafter be, any inconsistency
between the provisions of these Rules and Regulations (as same may be amended,
modified or added to, from time to time) and the provisions of said Lease, the
more restrictive provisions shall control.
3.
Exhibit "D"
Subordination of Mortgage
___________________ as owner and holder of a certain Promissory Note dated
_______________________ in the principal sum of ____________________________
Dollars ($_______) and of a certain Mortgage or Deed of Trust of even date
therewith and securing said Note, recorded on ________________, in Book
___________, at Page ___________, in the Office of the Clerk and Recorder of
Arapahoe County, Colorado, now a first lien upon the premises more particularly
demised and described in that certain Lease dated _______________________, by
and between East by Southeast Venture, a Missouri general partnership, as
Landlord and ___________________________________ as Tenant, and upon other
property, in consideration of such leasing and of the sum of One Dollar ($1.00)
and other good and valuable consideration, receipt of which is hereby
acknowledged,
Does hereby covenant and agree that the said Mortgage or Deed of Trust
shall be and the same is hereby made subordinate to the said Lease with the same
force and effect as if the said Lease had been executed, delivered and recorded
prior to the execution, delivery and recording of the said Mortgage or Deed of
Trust;
Except, However, that this Subordination shall not affect nor be applicable
to and does hereby expressly exclude:
(a) The prior right, claim and lien of the said Mortgage or Deed of Trust
in, to and upon any award or other compensation heretofore or
hereafter to be made for any taking by eminent domain of any part of
the said premises, and to the right of disposition thereof in
accordance with the provisions of the said Mortgage or Deed of Trust,
(b) The prior right, claim and lien of the said Mortgage or Deed of Trust
in, to and upon any proceeds payable under all policies of fire and
rent insurance upon the said premises and as to the right of
disposition thereof in accordance with the terms of the said Mortgage
or Deed of Trust, and
(c) Any lien, right, power or interest, if any, which may have arisen or
intervened in the period between the recording of the said Mortgage or
Deed of Trust and the execution of the said lease, or any lien or
judgment which may arise at any time under the terms of such lease.
This Subordination shall inure to the benefit of and shall be binding upon
the undersigned, its successors and assigns.
1.
In Witness Whereof, this Subordination has been duly signed and delivered
by the undersigned this ____ day of _______________, 19___.
__________________________________
By: ______________________________
Vice President
By: ______________________________
Assistant Secretary
STATE OF )
)ss.
County of )
The foregoing instrument was acknowledged before me this ____ day of
_______________, 19___, by _________________________, as Vice President and
_________________________, as Assistant Secretary of ___________________.
My commission expires: _____________
Witness my hand and official seal.
__________________________________
Notary Public
Address of Notary: _______________
__________________________________
2.
Tenant's Agreement
The undersigned, as Tenant under the Lease herein described, does hereby
accept and agree to the terms of the foregoing Subordination, which shall inure
to the benefit of and be binding upon the undersigned and the heirs, executors,
administrators, legal representatives, successors and assigns of the
undersigned.
By: __________________________
__________________________
STATE OF )
)ss.
County of )
The foregoing instrument was acknowledged before me this ____ day of
_______________, 19___, by _________________________, as ____________________
of ________________________.
My commission expires: _____________
Witness my hand and official seal.
__________________________________
Notary Public
Address of Notary: _______________
__________________________________
Exhibit "E"
1. Hazardous Materials
Tenant shall not (either with or without negligence) cause or permit the
escape, disposal or release of any active or other hazardous substances, or
materials. Tenant shall not allow the storage or use of such substances or
materials in any manner not sanctioned by law or by the highest standards
prevailing in the industry for the storage and use of such substances or
materials, nor allow to be brought into the Project any such materials or
substances except to use in the ordinary course of Tenant's business, and
then only after written notice is given to Landlord of the identity of such
substances or materials. Without limitation, hazardous substances and
materials shall include those described in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C.
Section 9601 et seq., the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. Section 6901 et seq., any applicable state or local laws
and the regulations adopted under these acts. If, as a direct or sole
result of Tenant's negligence, acts or omissions, any lender or
governmental agency shall ever require testing to ascertain whether or not
there has been any release of hazardous materials, then the reasonable
costs thereof shall be reimbursed by Tenant to Landlord upon demand as
additional charges if such requirement applies to the Premises. In
addition, Tenant shall execute affidavits, representations and the like
from time to time at Landlord's request concerning Tenant's best knowledge
and belief regarding the presence of hazardous substances or materials on
the Premises. In all events, Tenant shall indemnify Landlord in the manner
elsewhere provided in this lease from any release of hazardous materials on
the Premises occurring while Tenant is in possession, or elsewhere, if
caused solely by the negligence, acts, or omissions of Tenant or persons
acting under Tenant. The within covenants shall survive the expiration or
earlier termination of the Lease term.
