EXHIBIT 10.15
LEASE
AGREEMENT
THIS LEASE AGREEMENT, MADE AND ENTERED INTO THIS 1st day of December, 2001, by
and between XXXXX XXXXXX AND XXXXXX X. XXXXXX , hereinafter referred to as
"Landlord", AND INDUSTRIALEX MANUFACTURING CORPORATION, a Colorado corporation,
hereinafter referred to as "Tenant";
WITNESSETH:
In consideration of the covenants, terms, conditions, agreements and
payments as hereinafter set forth, the parties hereto covenant and agree as
follows:
1. PROPERTY - LEASED PREMISES
Landlord hereby leases unto Tenant the following described premises:
0000 XXXXX XXXXX, XXXXXX, XXXXXXXX 00000, and described as approximately, 44,500
square feet of office and warehouse space, which shall hereinafter be referred
to as the "Leased Premises" and shown herein as "Exhibit A"; the leasing of
which shall be covered by the terms of this Agreement.
2. TERM
The term of this Lease shall commence at 12:01 a.m. on the 1ST day of
DECEMBER, 2001 and unless terminated as herein provided for, shall end at 12:00
p.m. on the 30TH day of NOVEMBER, 2012 .
3. RENT
Tenant shall pay to Landlord, at the address of Landlord as herein set
forth, the following as rental for the Leased Premises:
A. BASE RENTAL
The base rental for the full term hereof shall be - THREE
MILLION TWO HUNDRED SEVENTY TWO THOUSAND FIVE HUNDRED AND 00/100THS DOLLARS
($3,272,500.00). Said rental shall be payable in monthly installments (basic
monthly rental) of TWENTY FOUR THOUSAND SEVEN HUNDRED NINETY ONE AND 67/100THS
DOLLARS ($24,791.67) on the fifteenth day of each month during the term hereof.
B. SECURITY DEPOSIT
Lessee shall deposit with Lessor upon execution hereof
$24,791.67 as security for Lessee's faithful performance of Lessee's obligations
hereunder. If Lessee performs all of lessee's obligations hereunder, said
deposit shall be returned, without payment of interest for its use to Lessee at
the expiration of the term hereof and within 30 days after Lessee has vacated
the premises.
C. COST OF LIVING ADJUSTMENT
As of DECEMBER 1, 2002 the anniversary date of this Lease, the
basic monthly rental due under the terms hereof shall be adjusted by the
percentage increase in the U.S. Bureau of Labor Statistics Consumer Price Index
(commonly referred to as the Cost of Living Index). It is acknowledged the basic
monthly rental herein set forth is based upon the Index that is for "all Items"
published for the month of DECEMBER, 2001. The basic monthly rental then being
paid shall be increased by an amount equal to the amount arrived at by
multiplying the percentage increase in the Cost of Living Index for the
preceding TWELVE (12) month period times the then payable monthly rental. The
increased monthly rental as so determined shall commence as of the first day of
the month immediately following the FIRST anniversary date and shall continue
until readjusted as herein provided for. In the event said Index ceases to be
made available, Landlord shall have the right to use the Index which has
replaced, modified or changed said Index. If there is no replacement Index,
Landlord shall have the right to increase the rental due under the terms hereof,
said rental adjustment being made in accordance with the provisions of this
paragraph, with the percentage to be used being the percentage increase in said
Index for the year immediately preceding the month in which said Index ceases to
be published. Additional rents due because of increase in cost
of Living index, accrued prior to the date the current index is available, shall
be added to rents due for the remainder of the lease year and paid in equal
installments with the rental payments for the succeeding months.
D. PERCENTAGE RENT : Not Applicable
4. TAXES - REAL PROPERTY - ADJUSTMENT
A. Real Property Tax Paid by Tenant
Tenant agrees to pay to, directly to the persons or entities to whom
such expenses are payable, the real estate and ad valorem taxes including any
and all several or special assessments which may be levied or assessed by any
lawful authority for each calendar year during the lease form, including those
assessed against the land and/or building comprising the property as leased or a
part thereof.
B. Real Property Tax Paid by Landlord - Not applicable
5. TAXES -- PERSONAL PROPERTY - RESPONSIBILITY
Tenant shall be responsible and pay for any and all taxes and/or
assessments levied and/or assessed against any furniture, fixtures, equipment
and items of a similar nature installed and/or located in or about the leased
premises by Tenant.
6. UTILITIES
Tenant shall be solely responsible for and promptly pay all charges,
for heat, water, gas electric, sewer service and any other utility service used
or consumed on the leased premises.
7. HOLDING OVER - Not Applicable
8. MODIFICATION OR EXTENSIONS
No modification or extension of this Lease shall be binding unless in
writing, signed by the parties hereto and endorsed hereon or attached hereto.
9. ALTERATION - CHANGES AND ADDITIONS - RESPONSIBILITY
Subject to Landlord's prior approval, which shall not be unreasonably
withheld, Tenant may, during the term of this Lease, at Tenant's expense, erect
inside partitions, add to existing electric power service, add telephone
outlets, add light fixtures, install additional heating and/or air conditioning
or make such other changes or alterations as Tenant may desire. At the end of
this Lease, all such fixtures, equipment, additions and/or alterations (except
trade fixtures installed by Tenant,) shall be and remain the property of
Landlord; provided, however, Landlord shall have the option to require Tenant to
remove any or all such fixtures, equipment, additions and restore the leased
premises to the condition existing immediately prior to such change and/or
installation, normal wear and tear excepted, all at Tenant's cost and expense.
All such work shall be done in a good and workmanlike manner and shall consist
of new materials unless agreed to otherwise by Landlord. Any and all repairs,
changes and/or modifications thereto shall be the responsibility and at the cost
of Tenant. Landlord may require adequate security from Tenant assuring
mechanic's liens on account of work done on the premises by Tenant. Landlord may
also require adequate security to assure Landlord that the premises will be
restored to its original condition upon termination of the lease.
10. APPROVAL OF CHANGES - SIGN APPROVAL
Landlord must approve in writing any sign to be placed in or on the
leased premises, regardless of size or value and/or an addition, change or
alteration to the exterior of the leased premises. Prior to the cutting of any
holes in the roof or prior to any work being performed and/or any equipment
being installed on the roof by Tenant, the prior written approval of Landlord is
to be obtained by Tenant. If Tenant fails to get such prior written approval,
then any roof repairs required shall be the responsibility of Tenant. Landlord
must approve in writing any other improvements, additions, alterations and/or
changes to the lease of said premises in excess of Ten Thousand and 00/100
Dollars ($10,000.00). As a condition to the granting of such approval, Landlord
shall have the right to require Tenant to furnish a bond or other security
acceptable to Landlord sufficient to insure completion of and payment for any
such work to be so performed.
11. CARE OF LEASED PREMISES -- RESPONSIBILITY OF TENANT
During the term of the Lease, Tenant agrees to keep and maintain the
interior of the leased premises, including the plumbing, heating, air
conditioning and electrical systems, in good condition and repair at Tenant's
cost and expense. Tenant further agrees at the end of the term to return the
leased premises to Landlord in substantially as good condition as when received
except for usual and ordinary wear and tear. Tenant further agrees to be
responsible for any repairs and/or maintenance required for any part of the
improvements of which the leased premises are a part where such repair and/or
maintenance is necessitated by actions or inaction of Tenant on the leased
premises.
12. MAINTENANCE RESPONSIBILITY OF LANDLORD
Except as herein otherwise provided for, Landlord shall maintain,
repair and replace the floors, walls, ceilings, roof, foundations and other
structural components of the building and parking facilities on the premises as
necessary to maintain the building in the same condition as of the commencement
date, other than repairs, maintenance or replacement resulting from Tenant's
negligence or the negligence of Tenant's employees or agents, for which Tenant
shall be responsible.
13. COMMON AREA CHARGES - Not Applicable
14. CONTROL OF COMMON AREAS
All parking areas, driveways, entrances and exits, common areas and
other facilities furnished by Landlord in, on or near the improvements of which
the leased premises are a portion, shall at all times be subject to the
exclusive control and management of Landlord, notwithstanding that Tenant's
employees and/or customers may have a nonexclusive right to the use thereof.
Landlord shall have the right from time to time to establish, modify and enforce
reasonable rules and regulations with respect to said facilities and areas.
15. USE OF PREMISES AND CARE OF GROUNDS - TENANT
Tenant shall conform to all present and future laws and ordinances of
any governmental authority having jurisdiction over the leased premises. Tenant
shall not allow any accumulation of trash or debris on the leased premises
within any portion of the improvements of which the leased premises are a part.
All receiving and delivery of goods and merchandise and all removal of garbage
and refuse shall be made only by way of the rear and/or other service doors
provided therefor. In the event the leased premises shall have no such door,
then these matters shall be handled in a manner satisfactory to Landlord. No
storage of any material outside of the leased premises shall be allowed unless
first approved by Landlord in writing, and then in only such areas as are
designated by Landlord. Tenant shall not commit or suffer any waste on the
leased premises, nor shall Tenant permit any nuisance to be maintained on the
leased premises or permit any disorderly conduct, common noise or other activity
having a tendency to annoy or disturb any occupants of any part of the
improvements of which the leased premises are a part and/or any adjoining
property.
16. LIABILITY FOR OVERLOAD - TENANT
Tenant shall be liable for the cost of any damages to the leased
premises, the improvements of which the leased premises are a part of the
sidewalks and pavements adjoining the same which will result from the movement
of heavy articles. Tenant shall not unduly load or unload the floors or any part
on any part of the leased premises.
17. GLASS AND DOOR RESPONSIBILITY -- TENANT
All glass and doors on the leased premises shall be the responsibility
of the Tenant. Any replacement or repair shall be promptly completed at the
expense of the Tenant.
18. RULES AND REGULATIONS
Landlord reserves the right to adopt and promulgate rules and
regulations applicable to the leased premises and the land and improvements of
which the leased premises are a part and from time to time to amend or
supplement said rules or regulations. Notice of such rules and regulations and
amendments and supplements thereto shall be given to Tenant, and Tenant agrees
to comply with and observe such rules and regulations and amendments and
supplements thereto, provided, however, the same apply uniformly to all tenants
of the improvements of which the leased premises are a part.
19. USE OF PREMISES
Tenant shall use the leased premises as an industrial coating facility
and other related uses, and for no other purpose whatsoever except with the
written consent of the Landlord.
20. PARKING - Not Applicable
21. INSURANCE - RESPONSIBILITY OF TENANT
Tenant shall procure, pay for and maintain comprehensive public
liability insurance providing coverage from any loss or damage occasioned by an
accident or casualty, about or adjacent to the leased premises, which policy
shall be written on an "occurrence basis" with limits of not less than
$3,000,000.00 liability coverage and property damage coverage in amounts
sufficient to prevent Landlord or Tenant from becoming a coinsurer under the
applicable policies, and in any event in amounts not less than the actual
replacement cost of the improvements and equipment. In addition thereto, Tenant
shall, at all times, procure, pay for and maintain fire and liability insurance
coverage on the leased premises and worker's compensation insurance covering all
persons employed by Tenant on the Premises in connection with any work done on
or about any of the Premises for which claims for death or bodily injury could
be asserted against Landlord, Tenant or the Premises. Certificates of such
insurance shall be delivered to Landlord annually and shall provide that said
coverage shall not be, modified, reduced or canceled without thirty (30) days'
prior written notice thereof being given to Landlord. If Tenant uses, in the
leased premises, any kind of steam or other high-pressure boiler or other
apparatus which present any possibility of damage to the leased premises or the
improvements of which the leased premises are a part or the life or limb of
persons having such premises, Tenant agrees to carry appropriate boiler
insurance in an amount satisfactory to Landlord to indemnify against any loss
resulting from any explosion or other damage or liability.
22. INSURANCE - RESPONSIBILITY OF LANDLORD
The Landlord shall be responsible for and shall have in effect at all
times fire extended coverage and vandalism and malicious mischief insurance in
such amounts as shall be determined appropriate by Landlord.
23. REGULATIONS ON USE - TENANT RESPONSIBILITY
It shall be Tenant's sole and exclusive responsibility to meet all
regulations and laws of any governmental body having jurisdiction over the
leased premises as such regulations affect Tenant's operations, all at Tenant's
sole cost and expense. Tenant further agrees not to install any electrical
equipment that overloads any electrical paneling, circuitry or wiring, and
further agrees to comply with the requirements of the insurance underwriter or
any governmental authorities having jurisdiction thereof.
24. DAMAGE TO LEASED PREMISES
In the event the leased premises and/or the improvements of which the
leased premises are a part shall be totally destroyed by any fire or other
casualty or so badly damaged that, in the opinion of Landlord, it is not
feasible to repair or rebuild same, Landlord shall have the right to terminate
this Lease upon written notice to Tenant. If the leased premises shall be
partially damaged by fire or other casualty, except if caused by Tenant's
negligence, and said leased premises is not rendered untenantable thereby, as
determined by Landlord, an appropriate reduction of the rent shall be allowed
for the unoccupied portion of the leased premises until repair thereof shall be
substantially completed. If the leased premises is rendered untenantable
thereby, except if caused by Tenant's negligence, Tenant may, at its election,
terminate this Lease as of the date of the damage. If Tenant elects not to
terminate the Lease, the rent shall xxxxx in proportion to the loss of use of
the leased premises by Tenant during such untenantability.
25. INSPECTION OF AND RIGHT OF ENTRY TO LEASED PREMISES
A. The premises shall be deemed ready for occupancy on October
1, 2001, Tenant may inspect the leased premises and will accept the same in the
condition that exists with the exception of any minor punch list items.
B. Landlord, and/or Landlord's agents and employees, shall
have the right to enter the leased premises at all times during regular business
hours and, at all time during emergencies, to examine the leased premises, to
make such repairs, alterations, improvements or additions as Landlord may deem
necessary or desirable, and
Landlord shall be allowed to take all materials into and upon said premises that
may be required therefore without the same constituting an eviction of Tenant in
whole or in part, and the rent reserved shall in no way xxxxx while such
repairs, alterations, improvements or additions are being made, by reason of
loss or interruption of business of Tenant or otherwise. During the six months
prior to the expiration of the term of this Lease or any renewal thereof, Owner
may exhibit the premises to prospective tenants and/or purchasers and may place
upon the leased premises the usual notices indicating the leased premises are
for lease and/or sale.
26. DEFAULT - REMEDIES OF LANDLORD
If Tenant shall default in the payment of rent or in the keeping of any
of the terms, covenants or conditions of this Lease to be kept and/or performed
by Tenant, Landlord, may immediately, or at any time thereafter, re-enter the
leased premises, remove all persons and property therefrom, Without being liable
to indictment, prosecution for damage therefore, or for forcible entry and
detainer and repossess and enjoy the leased premises, together with all
additions thereto or alterations and improvements thereof. Landlord may, at its
option, at any time and from time to time thereafter, relet the leased premises
or any part thereof for the account of Tenant or otherwise, and receive and
collect the rents therefore and apply the same, first to the payment of such
expenses as Landlord may have incurred in recovering possession and for putting
the same in good order and condition for re-rental, and expense, commissions and
charges paid by Landlord in reletting the leased premises. Any such reletting
may be for the remainder of the term of this Lease or for a longer or shorter
period. In lieu of reletting such leased premises, Landlord may occupy the same
or cause the same to be occupied by others, whether or not the leased premises
or any part thereof be relet. Tenant shall pay the Landlord the rent, and all
other charges required to be paid by Tenant up to the time of the expiration of
this Lease or such recovered possession, as the case may be, and thereafter.
Tenant, if required by Landlord, shall pay to Landlord until the end of the term
of this Lease, the equivalent of the amount of all rent reserved herein and all
other charges required to be paid by Tenant, less the net amount received by
Landlord for such reletting, if any. If the leased premises shall be reoccupied
by Landlord, then, from and after the date of repossession, Tenant shall be
discharged of any obligations to Landlord under the provisions hereof for the
payment of rent. In event of any default by Tenant, and regardless of whether
the premises shall be relet or possessed by Landlord, and fixtures, additions,
furniture, and the like then on the premises may be retained by Landlord. In the
event Tenant is in default under the terms hereof and, by the sole determination
of Landlord has abandoned the leased premises, Landlord shall have the right to
remove all the Tenant's property from the leased premises and dispose of said
property in such a manner as determined best by Landlord, all at the cost and
expense of Tenant and without liability of Landlord for the actions so taken. In
the event an assignment of Tenant's business or property shall be made for the
benefit of creditors or, if the Tenants leasehold interest under the terms of
this Agreement shall be levied upon by execution or seized by virtue of any writ
of any court of law, or if application be made for the appointment of a receiver
for the business or property of Tenant, or, if a petition in bankruptcy shall be
filed by or against Tenant, then and in any such case, at Landlord's options,
with or without notice, Landlord may terminate this Lease and immediately retake
possession of the leased premises without the same working any forfeiture of the
obligations of Tenant hereunder. In addition to remedy granted to Landlord by
the terms hereof, Landlord shall have available any and all rights and remedies
available under the Statutes of the State of Colorado. No remedy herein or
otherwise conferred upon or reserved to Landlord shall be considered exclusive
of any other remedy but shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing at law or in equity or
by Statute. Further, all powers and remedies given by this Lease to Landlord may
be exercised, from time to time, and as often as occasion may arise or as may be
deemed expedient. No delay or omission of Landlord to exercise any right or
power arising from any default shall impair any such right or power or shall be
considered to be a waiver of any such default or acquiescence thereof. The
acceptance of rental by Landlord shall not be deemed to be a waiver of any
breach of any of the covenants herein contained or of any of the rights of
Landlord to any remedies herein given.
27. LEGAL PROCEEDINGS -RESPONSIBILITIES
In the event of proceeding at law or in equity by either party hereto,
and if the non-defaulting party shall pursue his rights through legal
proceedings, then the defaulting party shall pay all costs and expenses,
including all reasonable attorney's fees incurred by the non-defaulting party in
pursuing such remedy in the event such non-defaulting party is awarded
substantially the relief requested.
28. HOLD HARMLESS OF TENANT
Tenant will indemnify and hold Landlord harmless from and against any
and all claims, losses, expenses, costs, judgments and/or demands arising from
the conduct of Tenant on the leased premises and/or on account of any
operation or action by Tenant and/or from and against all claims arising from
any breach or default on the part of Tenant or any act of negligence of Tenant,
it agents, contractors, servants, employees, licensees, or invitees; or any
accident, injury or death of any person or damage to any property in or about
the leased premises.
29. ASSIGNMENT OR SUBLETTING
Tenant may not assign the Lease or sublet the leased premises without
the consent of Landlord; such consent shall not be unreasonably withheld
provided, however, no such assignment or subletting shall relieve Tenant of any
of its obligations hereunder, and performance of the covenants herein by
subtenants shall be considered as performance pro tanto by the Tenant.
30. WARRANTY OF TITLE
Landlord covenants it has good right to lease the leased premises in
the manner described herein and that Tenant shall peaceably and quietly have,
hold, occupy, and enjoy the premises during the term of the Lease.
31. ACCESS
Landlord shall provide Tenant non-exclusive access to the leased
premises through and across land and/or other improvements owned by Landlord.
Landlord shall have the right to designate, during the term of this Lease, all
such non-exclusive access and other common facilities of the land and/or
improvements of which the leased premises are a part,
32. GOVERNMENTAL ACQUISITION OF PROPERTY
The parties agree that Landlord shall have complete freedom of
negotiation and settlement of all matters pertaining to the acquisition of the
property by any governmental body, it being understood and agreed that any
financial settlement respecting land to be taken whether resulting from
negotiation and agreement or condemnation proceedings, shall be the exclusive
property of Landlord, there being no sharing whatsoever between Landlord and
Tenant of any sum received in settlement. In the event of any such governmental
taking, Landlord shall have the right to terminate this Lease on the date
possession is delivered by the governmental body. Such taking of the property by
a governmental body shall not be a breach of this Lease by Landlord, nor give
rise to any claims to Tenant for damages or compensation from Landlord.
33. CHANGES AND ADDITIONS TO IMPROVEMENTS
Landlord reserves the right at any time to make alterations or
additions to the improvements of which the leased premises are a part and/or to
build additions or other structures adjoining said improvements. Landlord also
reserves the right to construct other buildings and/or improvements in the
immediate area of the improvements in which the leased premises are located and
to make alterations or additions thereto, all as Landlord shall determine.
Easements for light and air are not included in the leasing of the leased
premises to Tenant. Landlord further reserves the exclusive right to the roof of
the improvements of which the leased premises are a part except as provided for
in this Lease Agreement. Landlord also reserves the right at any time to
relocate, vary and adjust the size of any of the improvements, parking areas or
other common areas relating to the land and/or improvement to which the leased
premises are a part, provided, however, that all such changes shall be in
compliance with the minimum requirements of governmental authorities having
jurisdiction over the property.
34. SUBORDINATION
The Tenant agrees that its Lease rights will be subordinate to those of
any lending institutions making any loan upon the real property of which the
leased premises are a part. Tenant further agrees to sign reasonable documents
reflecting this subordination when and if requested by the Landlord.
35. OPTION TO EXTEND
Upon full an complete performance of all the terms, covenants and
conditions herein contained by Tenant and payment of all rental due under the
terms hereof, Tenant shall be given the option to renew this Lease for three
additional terms of five (5) years. In the event Tenant desires to exercise said
options, Tenant shall give written notice of such fact to Landlord not less than
ninety (90) days nor more than one hundred twenty (120) days prior to the
expiration of the then-current term of this Lease. In the event of such
exercise, this Lease Agreement shall be deemed to be extended for the additional
period; provided, however, Landlord shall have the right to increase the basic
monthly rental to the then current market rent (to be negotiated by Landlord and
Tenant at the time of renewal). Any such increased rental shall be subject to
adjustments and be payable as herein provided for. Landlord shall further have
the right to make any further adjustments and/or assessment of charges against
Tenant as herein provided for. In the event of exercise of said option, any
funds retained by Landlord as herein provided for shall be continued to be so
held subject to the same terms and conditions.
36. GUARANTEE AND FINANCIAL STATEMENTS - Not Applicable
37. INTEREST ON PAST-DUE OBLIGATIONS
Any amount due to Landlord not paid shall bear interest at one and
one-half percent (1 1/2%) per month from due date until paid. Payment of such
interest shall not excuse or cure any default by Tenant under this Lease.
38. LATE CHARGE - Not Applicable
39. MEMORANDUM OF LEASE - RECORDING
The parties hereto agree this Lease shall not be recorded in the office
of the Clerk and Record of the county in which the leased premises is located.
In order to affect public recordation, the parties hereto may, at the time this
Lease is executed, agree to execute a Memorandum of Lease incorporated therein
by reference the terms of this Lease, but deleting therefrom any expressed
statement or mention of the amount of rent herein reserved, which instrument may
be recorded by either party in the office of the Clerk and Recorder of the
county in which the leased premises is located.
40. NOTICE PROCEDURE
All notices, demands and requests which may or are required to be given
by either party to the other shall be in writing and such that are to be given
to Tenant shall be deemed to have been properly given if served on Tenant or an
employee of Tenant or sent to Tenant by United States registered mail, return
receipt requested, properly sealed, stamped, and addressed to Tenant at
INDUSTRIALEX MANUFACTURING, 0000 XXXXX XXXXX, XXXXXX, XXXXXXXX 00000, or at
such other place as Tenant may from time to time designate in a written notice
to Landlord; and, such as are to be given to Landlord shall be deemed to have
been properly given if personally served on Landlord or if sent to Landlord,
United States registered mail, return receipt requested, properly sealed,
stamped and addressed to Landlord at Xxxxx XXXXX XXXXXX OR XXXXXX X. XXXXXX, 000
X. XXXXX XXXXX, XXXXXXXX, XX 00000, or at such other place as Landlord may from
time to time designate in a written notice to Tenant. Any notice given by
mailing shall be effective as of the date of mailing as shown by the receipt
given therefor.
41. CONTROLLING LAW
The Lease, and all terms hereunder, shall be construed consistent with
the laws of the State of Colorado. Any dispute resulting in litigation hereunder
shall be resolved in court proceedings instituted in Xxxxx County and in no
other jurisdiction.
42. BINDING UPON SUCCESSORS
The covenants and agreements herein contained shall bind and inure to
the benefit of Landlord and Tenant and their respective successors. This Lease
shall be signed by the parties in duplicate, each of which shall be a complete
and effective original Lease.
43. PARTIAL INVALIDITY
If any term, covenant or condition of this Lease or the application
thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Lease or the application of such term,
covenant or condition to persons and circumstances other than those to which it
has been held invalid or unenforceable, shall not be affected thereby, and each
term, covenant and condition of this Lease shall be valid and shall be enforced
to the fullest extent permitted by law.
44. CONDITION OF SPACE
With the exception of the changes, additions and corrections herein
noted, Tenant agrees to accept this space "as is". Any changes desired by Tenant
in addition to those listed and agreed to by Landlord shall be done at the sole
expense of the Tenant unless otherwise agreed in the addendum to this Lease
attached hereto, or as noted in Paragraph 46.
45. REAL ESTATE COMMISSION - Not Applicable
46. MISCELLANEOUS
All marginal notations and paragraph headings are for purposes of
reference and shall not affect the true meaning and intent of the terms hereof.
Throughout this Lease, wherever the words "Landlord" and "Tenant" are used, they
shall include and imply to the singular, plural, persons both male and female,
companies, partnerships and corporations, and in reading said Lease, the
necessary grammatical changes required to make the provisions hereof mean and
apply as aforesaid shall be made in the same manner as though originally
included in said Lease.
See Xxxxxxxx "X", Xxxxxxxxxx 00 - 00, xxxxxxxx hereto and incorporated herein
IN WITNESS WHEREOF, the parties have executed this Lease as of the date hereof.
LANDLORD: XXXXX XXXXXX AND XXXXXX X. XXXXXX
By: /s/ Xxxxx Xxxxxx
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By: /s/ Xxxxxx X. Xxxxxx
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TENANT: INDUSTRIALEX MANUFACTURING CORPORATION
A COLORADO CORPORATION
By: /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx, Chief Financial Officer
ADDENDUM "A"
THIS ADDENDUM is attached hereto and forms a part of that certain lease dated
December 1st, 2001 by and between XXXXX XXXXXX AND XXXXXX X. XXXXXX, hereinafter
referred to as "Landlord," and INDUSTRIALEX MANUFACTURING CORPORATION, A
COLORADO CORPORATION, hereinafter referred to as "Tenant," covering
approximately 44,500 square feet of office and warehouse space located at 0000
XXXXX XXXXX, XXXXXX, XXXXXXXX 00000.
(a) 47. OPERATING EXPENSES. "Operating Expenses" shall mean
all operating expenses of any kind or nature which are incurred with respect to
the use, occupancy, operation, maintenance, repair or replacement of the
Building Complex or any part thereof, except as stated in Paragraph 12 of the
lease agreement listed above. Including but not limited to, all real and
personal property taxes and assessments levied against the Building Complex by
any governmental or quasi-governmental authority, including any taxes,
assessments, surcharges, or service or other fees of a nature not presently in
effect which shall hereafter be levied on the Building Complex or any part
thereof or any personal property or fixtures contained therein or as a result of
the use, occupancy or operation of the Building Complex or for any other reason,
whether in lieu of or in addition to any current real estate and personal
property taxes and assessments; provided, however, that in no event shall the
term "Taxes and Assessments", as used herein, include any federal, state or
local income taxes levied or assessed on Landlord, unless such taxes are a
specific substitute for real or personal property taxes; such term shall,
however, include gross taxes on rentals in the nature of an excise tax and
reasonable expenses incurred by Landlord in contesting the amount or validity of
any such Taxes or Assessments, such expenses for which Tenant is obligated to be
limited by the amount of the tax or assessment reduction actually obtained,
unless such contest is requested in writing by Tenant (all of the foregoing are
collectively referred to herein as "Taxes"). "Assessments" shall include any and
all so-called special assessments, license tax, business license fee, business
license tax, commercial rental tax, levy, charge or tax imposed by any authority
having the direct power to tax, including any city, county, state or federal
government, or any school, agricultural, lighting, water, drainage or other
improvement or special district thereof, against the Building Complex, or
against any legal or equitable interest of Landlord or Tenant therein. For the
purposes of this Lease, any special assessment shall be deemed payable in such
number of installments as is permitted by law, whether or not actually so paid.
Tenant may, at Tenant's sole cost and expense, contest the amount of Taxes or
Assessments, as permitted by applicable law. Landlord shall reasonably cooperate
with Tenant with respect to any such Tax or Assessment contest.
(b) It is hereby agreed that during the Primary Lease Term,
Tenant shall pay all Operating Expenses with respect to the Building Complex,
directly to the persons or entities to whom such expenses are payable. Further,
if the Lease term hereunder covers a period of less than a full calendar year
during the first or last calendar years of the term hereof, Tenant's
responsibility for Real Estate Taxes and Operating Expense for such partial year
shall be adjusted to reflect the number of months in such year during which
Tenant leased the Building Complex.
(c) Tenant's liability for the payment of Operating Expenses
during the term hereof shall survive the expiration or earlier termination of
this Lease.
(d) Notwithstanding anything contained herein to the contrary,
Tenant shall pay Taxes and Assessments and insurance premiums and shall deliver
to Landlord proof of payment prior to delinquency of such Taxes and Assessments
and insurance premiums. In the event Tenant fails to deliver proof of payment
within 10 days following written notice or fails to pay such Taxes and
Assessments or insurance premiums as required herein, then, at Landlord's
request, Tenant shall pay to Landlord on a monthly basis, payable in advance on
the first day of each month, one-twelfth (1/12) of (a) the annual amount of all
Taxes and Assessments for the Building Complex and (b) the annual cost of all
insurance carried by Tenant pursuant to paragraph 14(a) hereof.
48. TENANT IMPROVEMENTS/FAILURE TO GIVE POSSESSION
48.1. N/A
48.2 In the event that the leased premises is not ready for occupancy
on the estimated occupancy date of December 1, 2001 due to any delay's
whatsoever, the lease shall continue in full force and effect except
that the provision for payment of rent shall be waived on a daily basis
until the date of substantial completion and the term will be adjusted
to reflect the actual occupancy date.
49. N/A.
50. EXCULPATION. Not withstanding anything to the contrary contained
herein, Landlord's liability under this lease shall be limited strictly
to its interest in the Land and Improvements located at 0000 Xxxxx
Xxxxx, Xxxxxx, Xxxxxxxx 00000 at which the leased premises is a part.
51. TENANT'S PERSONAL PROPERTY. Landlord shall not bear any responsibility
whatsoever for any of Tenant's personal property used or kept on the
leased premises. Any losses suffered by Tenant for Tenant's personal
property because of fire, theft, vandalism or any other risk shall be
born solely by Tenant.
52. LIEN PROTECTION. Tenant shall keep the premises free of mechanics
liens. Tenant shall defend against all such liens, and if Tenant fails
to do so, Landlord may do so at Tenant's expense.
53. HAZARDOUS MATERIALS - ENVIRONMENTAL COMPLIANCE. Tenant, its agents,
employees, contractors and invitees shall use the Premises and conduct
any operations thereon in compliance with all applicable federal, state
and local environmental statutes, regulations, ordinances and any
permits, approvals or judicial or administrative orders issued
thereunder.
54. ENVIRONMENTAL HAZARDS. Tenant covenants that:
54.1 No Hazardous Substances (as hereinafter defined) shall be
generated, treated, or stored or disposed of, or otherwise deposited in
or located on the Premises, including without limitation, the surface
and subsurface waters of the Premises. Except those substances
incidental and used in Tenants business trade provided those substances
are handled, stored and disposed of in accordance with all applicable
laws.
54.2 No activity shall be undertaken on the Premises which would cause:
(a) The Premises to become a hazardous waste treatment,
storage or disposal facility within the meaning of, or otherwise cause
the Premises to be in violation of the Resource Conservation and
Recovery Act ("RCRA"), 42 U.S.C. Section 6901 et seq., or any similar
state law or local ordinance;
(b) A release or threatened release from any source on the
Premises of Hazardous Substances within the meaning of, or otherwise
cause the Premises to be covered by, the Comprehensive Liability Act
("CERCLA"), 42 U.S.C. Section 9601 et seq., or any similar state law or
local ordinance or any other environmental law;
(c) The discharge of pollutants or effluents into any water
source or system, or the discharge into the air of any emissions which
would require a permit under the federal water Pollution Control Act
("FWPCA"), 33 U.S.C. Section 1251 et seq., or the Clean Air Act
("CAA"), 42 U.S.C Section 7401 et seq., or any similar state law or
local ordinance;
(d) There shall be no substances or conditions in or on the
Premises which may support a claim or cause of action under RCRA,
CERCLA, any other federal, state or local environmental statutes,
regulations, ordinances or other environmental regulatory requirements
or under any common law claim relating to environmental matters, or
could result in recovery by any governmental or private party of
remedial or removal
costs, natural resources damages, property damages in personal injuries
or other costs, expenses or damages, or could result in injunctive
relief arising from any alleged injury or threat of injury to health,
safety or the environmental; and
(e) There shall be no underground storage tanks or release or
threatened releases from such tanks located on the Premises.
For the purposes of this Lease, "Hazardous Substance" shall mean any
and all hazardous or toxic substances, hazardous constituents,
contaminants, wastes, pollutants or petroleum (including without
limitation crude oil or any fraction thereof including without
limitation hazardous or toxic substances, pollutants and/or
contaminants as such terms are defined in CERCLA or RCA; asbestos or
material containing asbestos; and PCBs, PCB articles, PCB containers,
PCB article containers, PCB equipment, PCB transformers or PCB
contaminated electrical equipment (as such terms are defined in Part
761 or Title 40, Code of Federal Regulations).
55. CLEANUP OBLIGATION. If it is discovered that any Hazardous Substances
or other materials described in Article 54.0 above have been deposited,
released, discharged or otherwise caused to exist DUE TO TENANT'S
OPERATION, on or from the Premises in violation of the provisions of
Article 54.0 above, then Tenant agrees within a reasonable time to
remove, clean up or take such other remedial action with regard to such
substances as may be required by applicable law or regulations. Any
such remedial action shall be the sole responsibility of Tenant and
shall be conducted at Tenant's sole cost and expense. If Tenant fails
to commence or diligently pursue such remedial action in Landlord's
sole judgment, then after a notice to Tenant, Landlord may either
declare an event of default under this Lease and exercise any and all
remedies hereunder, or cause the taking of such remedial action as may
be required at Tenants sole cost and expense. Tenant grants to Landlord
and its agents and employees access to the Premises and the license to
carry out such remedial action.
56. ENVIRONMENTAL NOTICE. Tenant shall give Landlord prompt notice of any
of the following occurrences arising with regard to the Premises or
Tenant's activities thereon:
56.1 Any spill, release, threatened release or other occurrence that
would constitute a violation of the provision of Articles 53.0 and 54.0
above;
56.2 The notification of any of the events set forth in Article 56.1
above to any federal, state or local governmental agency or authority;
56.3 Any notices, claims or allegations of environmental violations or
contamination received from any federal, state or local governmental
agency or authority of the filing or commencement of any judicial or
administrative proceeding by any such agency; or
56.4 The filing or threatened filing of any judicial or administrative
proceeding BY any private party alleging injury or threat of injury to
property, health, safety or the environment.
57. INDEMNITY.
57.1 Tenant hereby agrees to indemnify, defend and hold harmless the
Landlord and its agents, affiliates, officers, directors and employees
(all of such entities and persons being referred to herein individually
as "Indemnified Person" and collectively as the "Indemnified Parties")
from and against any and all liability, claims, demands, actions and
causes of action, whatsoever (including without limitation reasonable
attorney's fees and expenses and costs and expenses reasonably incurred
to which any Indemnified Person may BE subject insofar as they arise
out of or relate to any alleged contamination of the Premises or
alleged violation of environment statutes arising from any violation of
Tenant's obligations under Articles 53.0 through and including Article
56.0 above.
57.2 Those costs, damages, liabilities, losses, claims, expenses
(including without limitation attorney's fees and disbursements) for
which the Indemnified Parties are indemnified hereunder shall be
reimbursable as incurred without any requirement of waiting for the
ultimate outcome of any litigation, claim or other proceeding, and
Tenant shall pay such costs, expenses, damages, liabilities, losses,
claims, expenses (including without limitation attorney's fees and
disbursements) as incurred by Landlord or other Indemnified Persons
within fifteen (15) days after notice itemizing the amounts incurred to
the date of such notice.
58. SURVIVAL. The obligations of Tenant set forth in this Article 53.0
shall survive the expiration or termination o the term of this Lease or
the exercise by Landlord of any of its remedies hereunder.
59. SUBORDINATION, ESTOPPEL LETTER AND Attornment. Tenant shall at any
time, and from time to time, upon not less than ten (1 0) days prior
written notice from Landlord, execute, acknowledge, and deliver to
Landlord a statement in writing, certifying that this Lease is
unmodified and in full force and effect (or, if modified, stating the
nature of such modification and certifying that this lease as so
modified, is in full force and effect) and the dates to which rent and
other charges are paid in advance, if any, and acknowledging that there
are not, to Tenant's knowledge, any uncured defaults on the part of the
Landlord hereunder, or specifying such default, if any are claimed, or
acknowledging to any mortgagee that Tenant will not modify or amend
this Lease without consent of such mortgagee, and certifying as to such
other matters Landlord may reasonably request. In the event that
Landlord or its principal sells, conveys, transfers or grants the
Building or the premises to and by person, firm, corporation, company,
or entity during the term hereby demises, Tenant agrees to attorn to
such new owner, and Landlord and its principal shall be released from
performance hereunder.
60. DEFAULT. TEN (10) DAYS notice for rent default shall be given. For any
other default Tenant shall have thirty (30) days to cure unless such
default cannot be reasonably cured within thirty (30) days in which
event Tenant must diligently proceed to cure the default.
61. NON-DISTURBANCE. Upon change of ownership through foreclosure or
otherwise, the Purchaser shall not disturb Tenant's peaceful possession
of the Premises providing Tenant is not in default under this lease.
62. WAIVER OF SUBROGATION. Tenant and Landlord in consideration of the
execution of this Lease, do herewith and hereby release and relieve the
other for loss or damage arising out of or incident to the perils of
fire, explosion, or any other peril described in "extended coverage"
insurance endorsements approved for use in the State of Colorado which
occurs, in, on or about the said Premises, whether due to negligence of
any parties, their agents or employees or otherwise. This agreement
shall apply to events involving such perils, which occur after this
date and before this agreement is terminated in writing.
