EXHIBIT 10.5(iii)
LEASE BETWEEN THE COMPANY'S SUBSIDIARY AND 00000 XXXX XXXXX XXXXX, LLC
DATED SEPTEMBER 4, 2003
LEASE
BETWEEN
00000 XXXX XXXXX XXXXX, LLC, a
Colorado limited liability company
as Landlord
and
ORALABS, INC., a Colorado corporation
as Tenant
DATE OF LEASE: September 4, 2003
PREMISES:
00000X X. Xxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
LEASE
THIS LEASE (this "Lease") is made as of the 4th day of September 2003 (the
"Effective Date"), by and between 00000 XXXX XXXXX XXXXX, XXX, a Colorado
limited liability company ("Landlord"), and ORALABS, INC., a Colorado
corporation ("Tenant").
ARTICLE 1
GRANT AND TERM
1.1 Grant. Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, a portion of that certain building (the "Building") located at
00000X X. Xxxxx Xxxxx, Xxxxxx, Xxxxxxxx, which real property ("Real
Property") is more specifically described on Exhibit A attached hereto
consisting of 88,000 rentable square feet and by this reference made a part
hereof, together with all improvements located thereon (the
"Improvements"), and all appurtenances belonging to or in any way
pertaining to such premises (hereinafter collectively referred to as the
"Premises"). The Premises are illustrated on Exhibit B attached hereto.
1.2 Term. The term hereof (the "Term") shall commence on September 4, 2003,
(the "Commencement Date") and shall terminate on September 30, 2006 (the
"Expiration Date") (unless the Term shall be sooner terminated in
accordance herewith).
ARTICLE 2
RENT
2.1 Rent.
A. Base Rent. Commencing on the Commencement Date, but subject to the
provisions of Section 8.5, Tenant shall pay to Landlord as the base
monthly rent ("Base Rent") for the Leased Premises, in monthly
installments in advance on or before the first day of each full
calendar month of the Term and any extensions an amount equal to $5.00
per rentable square foot per annum. The amount of each monthly
installment of Base Rent will be $36,666.67. In the event that
Landlord claims that the amount of rent should change based upon
Landlord's remeasurement of the Leased Premises, Tenant will have the
right to have its architect verify the remeasurement results.
Base Rent for any partial month shall be payable in advance and shall
be prorated based on the actual number of days during the Lease Term
occurring in such month divided by the total number of days in such
month.
B. Manner and Place of Payment. Base Rent and Additional Rent defined
below (collectively, "Rent") shall be payable without notice or demand
and without any deduction, offset (except as expressly provided in
Section 8.5), or abatement (except as expressly provided in Section
12.3), in lawful money of the United States of America. Tenant shall
pay Rent directly to Landlord at the address set forth in the notice
provision of the lease, or such other address as Landlord may
designate in writing from time to time.
2.2 Net Lease. The parties intend that except as specifically provided
otherwise in the Lease, all charges, costs, expenses and obligations of
every kind (collectively "Operating Expenses"), relating to the ownership
and operation of the Building and its appurtenances, shall be deemed
Additional Rent and shall be paid by Tenant to Landlord (or at Landlord's
direction, directly to the party who is entitled to receive such payment
under a direct obligation of Tenant to such party, if applicable). All such
Additional Rent payable to third parties shall be due at such times and in
such amounts so as not to become delinquent under any agreement pertaining
thereto, and all such amounts due to Landlord that are in addition to the
payments of monthly estimated Operating Expenses as described below, shall
be due on the first day of the succeeding calendar month following
Landlord's delivery of a written statement to Tenant setting forth in
reasonable detail the amount due, provided that the statement is received
by Tenant by the 20th day of a calendar month (and if received thereafter,
the payment will be due on the first day of the second calendar month
following delivery of the statement). To the extent that any of the
Operating Expenses are for items shared by Tenant and by occupants of other
portions of the Building as determined by Landlord, Tenant will pay its
Proportionate Share as defined in Section 5.3 below. Landlord will require
Tenant to pay estimated monthly amounts of Operating Expenses and Landlord
will reconcile the estimated payments to the actual payments when Landlord
has the information to do so in the succeeding calendar year. Tenant's
obligations to pay Operating Expenses for the Term will survive the
expiration or earlier termination of the Lease.
ARTICLE 3
USE
3.1 Use. The Premises may be used and occupied for office, production,
manufacturing and warehousing uses and any other use permitted by
applicable law. Tenant will not permit anything to be done upon the
Premises that in any way tends to create a nuisance or to disturb any other
occupants of the Building, and will not permit any objectionable noise or
odor to escape or be emitted from the Premises.
ARTICLE 4
POSSESSION
4.1 Delivery of Possession. Possession of the Premises is being delivered on
the date hereof, subject to the provisions of Section 8.5.
4.2 Condition of Premises. Tenant expressly acknowledges that it has inspected
the Premises and is fully familiar with the physical condition thereof and
that Tenant accepts the Premises in its "as is" condition (subject to
Landlord's express obligations under this Lease). ARTICLE 5
TAXES
5.1 Personal Property Taxes. Tenant covenants and agrees to pay, as Additional
Rent as and when due, all personal property taxes levied and assessed
against all furniture, fixtures, equipment and other items of personal
property constituting a part of the Premises or used in connection with the
Premises and/or Tenant's operations therein.
5.2 Real Estate Taxes. Tenant shall pay its Proportionate Share (defined below)
of real estate taxes for the Premises.
5.3 Proportionate Share. As used in this Lease, Tenant's Proportionate Share
means a fraction, the numerator of which is the number of rentable square
feet in the Premises and the denominator of which is the number of rentable
square feet in the Building, which is 138,654 rentable square feet (i.e.,
Tenant's Proportionate Share is 63.5%. In the event that Landlord claims
that Tenant's Proportionate Share should change based upon Landlord's
remeasurement of the Building, Tenant will have the right to have its
architect verify the remeasurement results.
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ARTICLE 6
INSURANCE
6.1 Tenant Insurance. Tenant shall, at its own cost and expense, during the
Term procure and maintain the following:
(a) Liability Insurance. Commercial general liability insurance in amounts
of not less than a combined single limit of $2,000,000 insuring Tenant
(and naming Landlord, Landlord's agents, their respective affiliates
and any mortgagee of the Premises for which Tenant has received a
written request as additional insureds) against all liability for
injury to or death of a person or persons or damage to property
arising from the use and occupancy of the Premises.
(b) Personal Property. Insurance insuring all personal property of Tenant
kept, stored or maintained on the Premises against loss or damage by
fire, windstorm or other "All Risk" casualties.
6.2 Landlord Insurance. Landlord shall, during the Term, procure and maintain
policies of insurance from insurers reasonably acceptable to Landlord,
insuring all improvements at any time situated upon the Land or otherwise
comprising a part of the Premises against loss or damage as covered by an
"All Risk" fire and extended coverage policy, for not less than one hundred
percent (100%) of the full replacement cost, if replaced, of such
Improvements (less footings and foundations), with deductibles for such
insurance in a commercially reasonable amount. Tenant shall reimburse
Landlord for Tenant's Proportionate Share of the premium for such insurance
that accrues during the Term of the Lease. Landlord shall xxxx Tenant for
such insurance as the premiums become due, and Tenant shall reimburse
Landlord within thirty (30) days after receipt of the invoice therefor.
Notwithstanding the foregoing, if Tenant can obtain the identical insurance
required by this Section 6.2 at a lower cost than Landlord but which
nevertheless will name Landlord, its agents, affiliates and Landlord's
lender as named insureds, Tenant shall so notify Landlord with written
confirmation of the terms of Tenant's proposed coverage, and thereafter,
Landlord shall elect either to (i) permit Tenant to obtain such insurance
directly in lieu of Landlord's obtaining such insurance, or (ii) continue
to carry such insurance and charge Tenant the premium Tenant would pay if
Tenant obtained the insurance directly.
6.3 Certificates. Upon written request, Landlord and Tenant shall provide each
other with certificates of insurance evidencing the coverage required to be
obtained by each of Landlord and Tenant under this Article 6, which
certificates shall provide that theinsurer shall endeavor to give Landlord
(in the case of the policy described in Section 6.1(a)) and Tenant (with
respect to the policy described in Section 6.2), at least ten (10) days
prior notice of cancellation.
6.4 Mutual Waiver of Subrogation. Notwithstanding any other provision of this
Lease to the contrary, and without limitation of the provisions of this
Article 6, whenever (a) any loss, cost, damage or expense resulting from
fire, explosion or any other casualty or occurrence is incurred by either
of the parties hereto, or anyone claiming by, through, or under it in
connection with the Premises, and (b) such party then is covered in whole
or in part by insurance with respect to such loss, cost, damage or expense
or is required under this Lease to be so insured, then the party so insured
(or so required) hereby waives any claims against and releases the other
party from any liability said other party may have on account of such loss,
cost, damage or expense to the extent of any amount recovered by reason of
such insurance (or which could have been recovered had such insurance been
carried as so required). The parties agree to furnish to each insurance
company which has or will issue policies of casualty insurance on the
Improvements, written notice of said waivers and to have the insurance
policies properly endorsed, if necessary, to acknowledge such subrogation
waivers.
ARTICLE 7
UTILITIES
7.1 Payment of Utilities. Tenant will pay, when due, all charges of every
nature, kind or description for utilities consumed by Tenant at the
Premises during the Term, including all charges for water, sewage, heat,
air conditioning, compressed air, gas, light, garbage, electricity,
telephone, steam, power or other public or private utility services
(collectively, "Utilities"). Subject to Tenant's obligations to pay for the
Utilities, Landlord shall use commercially reasonable efforts to cause
Utilities to be made available by third party providers to the Premises.
Except for Utilities that serve the Premises and are separately metered and
paid for by Tenant, Tenant's obligation to pay Utilities that serve the
Real Property will be calculated upon the Tenant's Proportionate Share.
7.2 HVAC System and Compressed air System. Tenant agrees that Landlord has sole
access to the HVAC equipment and compressed air system that serves the
Building.
ARTICLE 8
MAINTENANCE AND ALTERATIONS
8.1 Tenant's Maintenance. Subject to Landlord's obligations as set forth in
Section 8.2, during the Term, Tenant shall, at its sole cost and expense,
keep and maintain the interior of the Premises existing as of the
Commencement Date, reasonable wear and tear excepted. Tenant will be solely
responsible at its expense for the repair or replacement of any systems
that serve only the Premises. Tenant shall be responsible for repairing any
damage to the Building during the Term resulting from Tenant's negligence
or willful misconduct, except to the extent covered by or required to be
covered by Landlord's insurance.
8.2 Landlord's Maintenance. During the Term, Landlord shall be responsible for
repairs and replacement of all structural elements of the Building,
including replacement of the roof, if required, and all building systems,
including, without limitation, the mechanical, plumbing, electrical,
heating, ventilating and air conditioning equipment, boilers, and machinery
other than any systems that serve only the Premises (collectively,
"Building Systems") and all other equipment and fixtures ("Equipment and
Fixtures") used in connection with the operation of the Building, the roof
and the parking area and sidewalks of the Building, as well as the common
areas in the Building that are illustrated on Exhibit B. All expenses
incurred by Landlord in connection with any of the foregoing will be
considered Operating Expenses for which Tenant will pay its Proportionate
Share. However, Tenant will be responsible for any repairs or replacements
if required under this Agreement by Tenant's negligence or willful
misconduct, except to the extent covered by or required to be covered by
Landlord's insurance. In addition, notwithstanding anything to the contrary
in Section 8.1 or 8.2, if any repairs, replacements and/or improvements are
needed in the Building and/or Premises that are not the sole responsibility
of Tenant under this Lease (including without limitation the Building
Systems, structural elements of the Building, the roof and the Equipment
and Fixtures), and such repairs, replacements or improvements (other than
tenant improvements for other tenants) are considered capital expenditures
under generally accepted accounting principles, consistently applied
("GAAP") as determined by Landlord's accountants (collectively "Capital
Improvements"), Landlord shall be responsible for performing such Capital
Improvements, with the cost
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thereof to be amortized with interest at a rate per annum equal to the
Prime Rate plus three percent in effect at the time of the expenditure,
over the useful life of the applicable Capital Improvement, as determined
in accordance with GAAP, and Tenant shall reimburse Landlord on a monthly
basis for the applicable portion of the cost of the Capital Improvement
that is amortized during the Term.
8.3 Intentionally left blank.
8.4 Alterations. Tenant will not make any modifications, improvements or
alterations (collectively, "Alterations") in or to the Premises without
first securing Landlord's prior written consent thereto. Landlord shall
indicate in its written consent whether or not the Alterations must be
removed upon the expiration or termination of the Lease. In no event will
Tenant be permitted to make any changes that affect structural items or
that increase the load upon any of the systems serving the Building. All
Alterations will be made in accordance with all applicable governmental
regulations, laws and codes. At Landlord's election all Alterations will
become the property of the Landlord upon the expiration or termination of
the Lease, unless Landlord requires Tenant to remove the same in accordance
with this Section 8.4, in which event Tenant will do so prior to vacating
the Premises, and on or prior to Tenant's vacating the Premises it will
restore the condition of the Premises after removing the Alterations.
Landlord has the right to approve or disapprove the plans and
specifications proposed by the Tenant with respect to any Alterations, but
Landlord's approval will not impose upon Landlord any liability in
connection therewith. Among other things, Landlord may condition its
approval upon Tenant providing security that is satisfactory to Landlord
for the payment of the proposed work, and Landlord will be permitted to
post notices of non-responsibility prior to Tenant commencing any of the
work with respect to the Alterations.
8.5 Medtronic Access. Until the earlier of 90 days after the Commencement Date
or such earlier date as specified by Landlord, Tenant will permit Medtronic
to pass through the Premises. Landlord will coordinate the times during
which Medtronic may pass through the Premises.
ARTICLE 9
COMPLIANCE WITH LAWS AND ORDINANCES
9.1 Compliance With Laws. Tenant shall, at its sole cost and expense throughout
the Term, comply or cause compliance with any and all present and future
laws, ordinances, orders, rules, regulations and requirements of all
federal, state, municipal and other governmental bodies relating to
Tenant's business operations in the Premises. Notwithstanding the
foregoing, Tenant shall not be required to perform and, except in
circumstances caused by Tenant's negligence or willful misconduct, Tenant
shall not be required to pay for, structural changes or Capital
Improvements in or to the Premises in order to comply with any law,
ordinance, rule or regulation (collectively "Capital Compliance
Obligations") unless the charges or expenditures are required as a result
of any alterations or improvements performed by Tenant after the
Commencement Date, and all such other Capital Compliance Obligations shall
be performed by and paid for by Landlord.
ARTICLE 10
MECHANIC'S LIEN
10.1 Mechanic's Liens. Tenant shall not suffer or permit any mechanic's lien or
other lien to be filed against the Premises, or any portion thereof, by
reason of work, labor, skill, services, equipment or materials supplied or
claimed to have been supplied to the Premises at the request of Tenant, or
of anyone holding the Premises, or any portion thereof, by, through or
under Tenant. If any such mechanic's lien or other lien at any time shall
be filed against the Premises or any portion thereof, Tenant, within thirty
(30) days after the date Tenant first becomes aware of the filing of the
same, at Tenant's election, shall cause said lien either to be discharged
of record or to be bonded over in a manner which is reasonably acceptable
to Landlord and Landlord's mortgagee, if any, or to be insured over by
Landlord's or Landlord's mortgagee's title insurer in a manner reasonably
acceptable to Landlord and Landlord's mortgagee.
ARTICLE 11
DEFAULTS
11.1 Events of Default. The occurrence of any one or more of the following
events shall constitute an "Event of Default":
(a) If default shall be made in the due and punctual payment of Rent or in
the payment of any other amount to be paid by Tenant to Landlord, and
such default shall continue for a period of ten (10) business days
after receiving written notice thereof from Landlord of non-payment.
Notwithstanding the foregoing, Landlord will not be obligated to give
more than one notice under this subparagraph (a) during any period of
12 consecutive months, such that an Event of Default will occur
immediately upon Tenant's failure to timely pay any Rent, without
notice, from and after the second occasion during any consecutive
period of 12 months that Tenant is delinquent; or
(b) If default shall be made by Tenant in keeping, observing or performing
any of the terms contained in this Lease, other than as referred to in
subsections (a) and (c) of this Section 11.1, and such default shall
continue for a period of thirty (30) days after written notice thereof
is given by Landlord to Tenant. However, if a longer period is
reasonably necessary to cure said default, an Event of Default will
not be deemed to occur if Tenant commences the cure within thirty days
after Landlord's written notice is given and proceeds with due
diligence and in good faith to prosecute the curing of same, and in
any event completes the cure within ninety (90) days after written
notice is given; or
(c) Tenant shall: (i) make a general assignment for the benefit of
creditors; or (ii) file a petition in bankruptcy, for reorganization
or to effect a plan or other arrangement with creditors; or (iii) have
a petition or application filed against it in bankruptcy or any
similar proceeding, or have such a proceeding commenced against it,
and such petition, application or proceeding shall remain undismissed
for a period of sixty (60) days or more, or file an answer to such a
petition or application, admitting the material allegations thereof;
or (iv) apply to a court for the appointment of a receiver or
custodian for any of its assets or properties, or have a receiver or
custodian appointed for any of its assets or properties, with or
without consent, and such receiver shall not be discharged within
sixty (60) days after his appointment.
11.2 Landlord's Remedies. Upon the occurrence of any one or more of the
aforesaid Events of Default by Tenant, Landlord may, at Landlord's option,
without demand or notice (except as expressly required in this Article 11):
(a) Termination. Terminate this Lease by giving Tenant written notice of
termination, in which event this Lease and the Term shall expire and
terminate on the date specified in such notice of termination with the
same force and effect as though the date so specified were the
Expiration Date, and all rights of Tenant under this Lease and in and
to the Premises shall expire and terminate, but the obligation of
Tenant to pay and the right of Landlord to recover all Rent, including
accrued Rent and all future Rent owed for what would have been the
remaining Term of the Lease, together with the costs of collection,
including reasonable attorneys fees and costs, will survive the
termination of the Lease; or
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(b) Repossession. Without terminating this Lease, reenter and take
possession of the Premises, or any part thereof, and repossess the
same as Landlord's former estate, and expel Tenant and those claiming
through or under Tenant and remove the effects of either or both
without being deemed guilty of any manner of trespass and without
prejudice to any remedies for arrears of Rent and preceding breaches
of covenants. After reentering and repossessing the Premises without
terminating this Lease, Landlord may, from time to time, without
terminating this Lease, re-let the Premises or any part thereof on
behalf of Tenant for such term or terms and at such rent or rents, and
upon such other terms and conditions as Landlord may deem advisable in
its sole discretion (including concessions, free rent and payment of
commissions), with the right to make alterations and repairs to the
Premises. Such repossession shall not relieve Tenant of its
obligations and liability under this Lease, all of which shall survive
such repossession. In the event of such repossession, Tenant shall pay
to Landlord as Rent all Rent which would be payable hereunder if such
repossession had not occurred, less the net proceeds, if any, of any
re-letting of the Premises after deducting all of Landlord's expenses
in connection with such reletting, including, but not limited to, all
repossession costs, brokerage commissions, legal expenses, costs of
alterations and expenses of preparation for re-letting. Tenant shall
pay such Rent to Landlord on the days on which the Rent would have
been payable hereunder if possession had not been retaken. Any damage
or loss sustained by Landlord following Landlord's election to reenter
and repossess the Premises without terminating this Lease may be
recovered by Landlord, at such time and from time to time as Landlord
determines; or
(c) Other Acts. Make any payment or perform such other act to the extent
that Landlord may deem desirable. In that event, an Event of Default
will continue to exist and all amounts paid by the Landlord and all
expenses incurred, including reasonable attorneys fees and costs,
together with interest thereon at the Prime Rate plus three %, will be
Additional Rent that is immediately payable by Tenant to Landlord; or
(d) Remedies not Exclusive. Pursue such other remedies as are available at
law or equity.
11.3 Re-entry is not Termination of Lease. Notwithstanding any provision of this
Lease to the contrary, no re-entry, repossession, repairs, alterations or
re-letting of the Premises by Landlord shall be construed as an eviction or
ouster of Tenant or shall constitute an election by Landlord to terminate
this Lease unless a written notice of such intention is given by Landlord
to Tenant nor shall the same operate to release Tenant, in whole or in
part, from any of Tenant's obligations hereunder, and Landlord may, at any
time and from time to time, xxx Tenant to recover judgment for any
deficiencies from time to time remaining after the application from time to
time of the proceeds of any re-letting.
11.4 Landlord Default.
If Landlord fails to perform any of its obligations under this Lease,
Tenant shall give written notice to Landlord (except in the event of an
emergency, in which event reasonable notice will be necessary under the
circumstances). If, within thirty (30) days after Tenant's written notice
(or, in an emergency, such shorter period of time as may be reasonable
under the circumstances), Landlord has not commenced to cure the default
(or subsequently does not diligently pursue the cure), Landlord will be in
default.
11.5 No Waiver. No failure by either party to insist upon the strict performance
of any term of this Lease, or to exercise any right or remedy upon a breach
by the other of this Lease, shall constitute a waiver of any breach or of
any term. Efforts by either party to mitigate the damages caused by the
other's breach of this Lease shall not be construed to be a waiver of the
right to recover damages. Either party's waiver of any covenant, term or
condition contained in this Lease (which waiver must be in writing) shall
not be construed as a waiver of any subsequent breach by the other party of
the same covenant, term or condition.
11.6 Consequential Damages. Landlord and Tenant hereby agree that neither
Landlord nor Tenant shall have liability to the other party for
consequential damages against the other party arising in any way out of
this Lease.
ARTICLE 12
DESTRUCTION AND RESTORATION
12.1 Notice of Damage. If the Premises, or any part thereof, shall be damaged by
fire or other casualty, Tenant shall give immediate notice thereof to
Landlord and this Lease shall continue in full force and effect except as
hereinafter set forth.
12.2 Restoration. Except as otherwise expressly provided in this Article 12, if
the Premises (or any portion thereof), is damaged or destroyed during the
Term, Landlord shall diligently repair or restore the Premises as soon as
reasonably possible to substantially the condition in which the Premises
existed immediately prior to such damage or destruction. Landlord shall not
be required to repair or restore any of Tenant's equipment, trade fixtures
or other personal property which are damaged or destroyed by such casualty.
In addition, Landlord shall not be required to repair or restore the
Premises if it does not receive sufficient insurance proceeds to cover all
of the repair or restoration costs (except for the amount of any
commercially reasonable deductible), or if the repair or restoration is
required as a result of the negligence or willful misconduct of the Tenant.
12.3 Abatement. Unless the casualty is caused by the negligence or willful
misconduct of the Tenant, all Additional Rent due and payable hereunder
shall equitably xxxxx for the portion of the Premises which is not
reasonably usable by Tenant for the conduct of its business for the period
commencing with the date of such casualty until the date that Tenant is
reasonably able to resume the conduct of its business in such portion of
the Premises.
12.4 Termination Right. If the Premises is damaged or destroyed to the extent
that an independent architect ("Architect") selected by Landlord determines
that the Premises cannot be fully repaired or restored (subject to minor
punchlist items) within one-hundred twenty (120) days after the casualty,
said determination to be made within thirty (30) days after such casualty,
either Landlord or Tenant may, by written notice to the other given within
ten (10) business days after receipt of the Architect's determination,
elect to terminate this Lease, whereupon this Lease, shall terminate as of
the date of such casualty. However, Tenant will not be entitled to exercise
such termination right if its negligence or willful misconduct caused the
damage or destruction. If the right to terminate under this Section 12.4
does not arise or Tenant or Landlord does not elect to terminate, this
Lease shall remain in full force and effect and Landlord shall diligently
repair and restore the damage or destruction as soon as reasonably
possible. Landlord shall take all reasonable steps Tenant requests to phase
the repair and restoration in a manner which permits Tenant to recommence
operation at the Premises of various components of its business as early as
possible. Notwithstanding the foregoing, Landlord has no obligation to
perform any work outside of ordinary business hours or to make any repair
or restoration to the extent that Landlord does not receive insurance
proceeds for the same, subject to any commercially reasonable deductible
amount.
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ARTICLE 13
CONDEMNATION
13.1 Taking. If the whole of the Premises shall be condemned by any governmental
agency or political subdivision or sold to any governmental agency or
political subdivision in lieu of condemnation, then this Lease shall expire
on the date the Premises shall be so taken or the date of the sale in lieu
of condemnation and the Additional Rent shall be abated as of that date.
13.2 Partial Taking. If a portion of the Premises shall be condemned by any
governmental agency or political subdivision or sold to any governmental
agency or political subdivision in lieu of condemnation and as a result
Tenant cannot reasonably conduct its normal business operations in any
material portion of the Premises, then Tenant may elect to terminate this
Lease by written notice to Landlord within sixty (60) days after the taking
and the Additional Rent shall be abated as of the date of the taking. If
Tenant does not exercise its option herein contained or if the taking is
not material, then this Lease shall remain in full force and effect, but
with an equitable abatement of Additional Rent for the portion of the
Premises so taken. In such event, Landlord shall restore the Premises for
Tenant's use but only to the extent that Landlord receives a condemnation
award, as allocated by Landlord to the rentable square feet of the
Premises, to pay for all costs of restoration.
13.3 Award. No part of any award or proceeds of sale resulting from the taking
of the whole or a portion of the Premises or a sale in lieu of condemnation
shall belong to Tenant; provided, however, Tenant shall have the right to
pursue such separate claim or claims as Tenant may have legally for the
value of its leasehold improvements, relocation expenses, interruption of
business and other items. Tenant hereby expressly waives any claim which it
may have relating directly or indirectly to the leasehold estate created
under this Lease.
ARTICLE 14
ASSIGNMENT AND SUBLETTING
14.1 Permitted Transfers. Without Landlord's consent, Tenant may assign this
Lease to, sublease all or any portion of the Premises to, or allow
occupancy of all or any portion of the Premises by, any of the following
(each, a "Permitted Transferee"): (i) any corporation, limited liability
company, partnership, association, trust or other business entity which
directly or indirectly controls, is controlled by or is under common
control with Tenant; (ii) any successor corporation or other entity
resulting from a merger or consolidation of Tenant or any Related Entity
with any other entity or party; or (iii) any purchaser of all or
substantially all of Tenant's or any Related Entity's assets. Tenant shall
give Landlord written notice of any such assignment or sublease promptly
following its occurrence, and any assignee shall assume in writing all of
Tenant's obligations under this Lease arising after the transfer. Tenant
shall nevertheless at all times remain fully responsible and liable for the
payment of Rent and the performance and observance of all of Tenant's other
obligations under this Lease. As used herein, the term "control" shall be
deemed to mean direct or indirect ownership of not less than fifty percent
(50%) of the voting stock of any corporation or fifty (50%) percent of the
legal or equitable interests in any other business entity or the power to
direct the management or policies of the entity. Except as expressly stated
in this paragraph, Tenant may not assign, sublease or otherwise encumber
its interest in the Lease or all or any portion of the Premises without the
prior written consent of the Landlord, which will not be unreasonably
withheld. ARTICLE 15
SUBORDINATION, NONDISTURBANCE AND ATTORNMENT
15.1 Subordination and Nondisturbance. This Lease is and shall be subject and
subordinate to the lien of any mortgage, deed of trust, security instrument
or other document of like nature, hereinafter referred to as "Mortgage",
which now or at any time hereafter may be placed upon the Premises, or any
portion thereof or interest therein, and to any replacements, renewals,
amendments, modifications, extensions or refinancing of any of the
foregoing; provided that the holder of the Mortgage ("Mortgagee") agrees in
writing that so long as no Event of Default is continuing, neither Tenant's
right to quiet enjoyment under this Lease, nor the right of Tenant to
continue to occupy the Premises and all portions thereof, and to conduct
its business thereon in accordance with the terms of this Lease, shall be
interfered with or disturbed by Landlord or Mortgagee. Tenant agrees at any
time hereafter, and from time to time within thirty (30) days after written
request of Landlord, to execute and deliver to Landlord any instruments,
releases or other documents which are consistent with the requirements of
this Section 15.1 that reasonably may be required to effect or confirm the
subordination or superiority of this Lease to the lien of any such Mortgage
or to any such ground or underlying lease.
15.2 Attornment. If any Mortgagee shall succeed to the rights of Landlord under
this Lease or to ownership of the Premises, whether through foreclosure or
the delivery of a deed in lieu thereof, then upon the written request of
such Mortgagee, and provided that such Mortgagee agrees in writing to
assume and be bound by all of Landlord's obligations hereunder that arise
after the Mortgagee succeeds to Landlord's interest, Tenant shall attorn to
and recognize such Mortgagee as Tenant's landlord under this Lease, and
shall execute within thirty (30) days after written notice, deliver any
instrument that such Mortgagee may reasonably request to evidence such
attornment.
ARTICLE 16
LANDLORD'S ACCESS
16.1 Landlord's Right to Inspect. Tenant agrees to permit Landlord and its
authorized representatives, at Landlord's sole cost and expense, to enter
upon the Premises at reasonable times during ordinary business hours, upon
not less than one business day prior verbal notice except in the case of an
emergency, for the purpose of inspecting the same and making any necessary
repairs or replacements, and showing the same to prospective purchasers,
lenders and occupants.
16.2 Landlord Not to Materially Interfere with Tenant's Business. In exercising
its rights hereunder, Landlord shall refrain from any acts which may
materially interfere with Tenant's business operations at the Premises.
Without limiting the generality of the foregoing, Landlord acknowledges
that it is necessary for Tenant to control access to the Premises in order
to avoid unauthorized persons from viewing Tenant's trade secrets,
proprietary products, technology and/or processes. Accordingly, while
within the Premises, Landlord and its representatives, at Tenant's option,
shall be accompanied by a representative of Tenant and shall comply with
reasonable directions of such representative relative to safety and to the
protection of Tenant's trade secrets and other proprietary information.
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ARTICLE 17
SURRENDER
17.1 Surrender. Upon the termination of this Lease, whether by forfeiture, lapse
of time or otherwise, or upon termination of Tenant's right to possession
of the Premises, Tenant will at once surrender and deliver up the Premises,
to Landlord, in the condition existing as of the Commencement Date,
reasonable wear and tear and damage by casualty (not caused by the
negligence or willful misconduct of Tenant) and condemnation excepted.
Tenant is not obligated to remove any of the improvements to the Premises
that exist as of the Commencement Date of this Lease.
17.2 Removal of Tenant's Property. On or before the termination or expiration of
this Lease, Tenant shall remove Tenant's personal property, trade fixtures
and equipment and Tenant will repair any damage caused thereby.
ARTICLE 18
HAZARDOUS AND TOXIC MATERIALS
18.1 Environmental Definitions. "Environmental Laws" - All present or future
federal, state and municipal laws, ordinances, rules and regulations
applicable to the environmental and ecological condition of the Premises,
including, without limitation, the rules and regulations of the Federal
Environmental Protection Agency and any other federal, state or municipal
agency or governmental board or entity having jurisdiction over the
Premises. "Hazardous Substances" - Those substances included within the
definitions of "hazardous substances," "hazardous materials," "toxic
substances," "solid waste" or "infectious waste" under Environmental Laws.
18.2 Existing Conditions. Landlord acknowledges that, prior to the Commencement
of this Lease, Landlord has completed its due diligence associated with the
purchase of the Building and has accepted the environmental condition of
the Building, subject to the other provisions of this Article 18. Prior to
the Commencement Date, Tenant has delivered to Landlord its material safety
data sheets.
18.3 Compliance. Beginning with the Commencement of this Lease, Tenant and
Landlord, at their own respective sole cost and expense, shall promptly
comply with all Environmental Laws applicable, respectively, to Tenant's
and Landlord's respective use, generation, storage and disposal of
Hazardous Substances on or about the Premises and Building during the Term.
18.4 Notices, Affidavits, Etc. Tenant and Landlord shall promptly, after
obtaining actual knowledge of same, notify each other of (i) any violation
by Tenant or Landlord, their employees, agents, representatives, customers,
invitees or contractors of the Environmental Laws on, under or about the
Premises and the Building, or (ii) the presence or suspected presence of
any Hazardous Substances on, under or about the Premises or Building in
violation of applicable Environmental Laws and shall promptly deliver to
each other any notice received by Tenant or Landlord relating to (i) and
(ii) above from any source.
18.5 Landlord's Rights. Landlord and its agents shall have the right, but not
the duty, upon no less than forty-eight (48) hours prior written notice to
Tenant (except in the case of emergency when only such notice as may be
reasonable under the circumstances shall be required) to inspect the
Premises and conduct tests thereon to determine whether or the extent to
which there has been a violation of Environmental Laws by Tenant during the
Term or whether there are Hazardous Substances on, under or about the
Premises in violation of applicable Environmental Laws. In exercising its
rights herein, Landlord shall use reasonable efforts to minimize
interference with Tenant's business.
18.6 Mutual Indemnification. Tenant and Landlord shall indemnify each other from
any and all claims, losses, liabilities, costs, expenses and damages,
including reasonable attorneys' fees, costs of testing and remediation
costs, punitive damages, environmental response, removal and remedial
action costs, clean-up costs, fines, penalties, reasonable expert fees,
reasonable technical consulting fees and costs and expenses incurred in
investigating and defending against the assertion of any such matters,
incurred in connection with any breach by Tenant or Landlord of their
obligations under this Article 18, which occur during the Term. Landlord
has no obligation to indemnify Tenant for any matter that existed or
accrues prior to the Commencement Date. Tenant has delivered to Landlord
its Material Safety Data Sheets and Permits and Landlord consents to the
substances and amounts in these documents. The covenants and obligations
under this Article 18 shall survive the expiration or earlier termination
of this Lease.
ARTICLE 19
INDEMNIFICATION
19.1 Tenant's Indemnity. Tenant shall defend, indemnify, hold and save Landlord
harmless from and against any and all loss, cost, liability or damage
(including reasonable attorneys' fees and court costs) arising during the
Term by reason of personal injury or property damage occurring (i) outside
of the Premises but elsewhere in or about the Building if caused by the
negligence or willful misconduct of Tenant, its officers, agents,
employees, contractors and/or invitees, and (ii) at the Premises, except to
the extent arising from the willful misconduct or negligence of Landlord,
or Landlord's officers, agents, employees, contractors and/or invitees in
connection with the Premises.
19.2 Landlord's Indemnity. Landlord shall defend, indemnify, hold and save
Tenant harmless from and against any and all loss, costs, liability or
damage (including reasonable attorneys' fees or court costs) in connection
with the Premises, to the extent arising out of the willful misconduct or
negligence of Landlord, or Landlord's officers, agents, employees,
contractors and/or invitees.
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ARTICLE 20
MISCELLANEOUS PROVISIONS
20.1 Notices. All notices, demands and requests which may be or are required to
be given, demanded or requested by either party to the other shall be in
writing. All notices, demands and requests shall be sent by United States
registered or certified mail, postage prepaid, or by commercial overnight
delivery service or other personal service (with evidence of receipt),
addressed as follows:
to Tenant: OraLabs, Inc.
00000X X. Xxxxx Xxxxx
Xxxxxx, XX 00000
to Landlord: 00000 Xxxx Xxxxx Xxxxx, LLC
c/o Xxxx X. Xxxxxxxxx
0000 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
or at such other place as Landlord or Tenant may designate by notice given
pursuant to this Section. Notices, demands and requests which shall be
served upon Landlord by Tenant, or upon Tenant by Landlord, by mail in the
manner aforesaid, shall be deemed to be sufficiently served or given for
all purposes hereunder upon receipt thereof (or upon the refusal to accept
receipt thereof), and notices served by overnight delivery service shall be
deemed served or given on the next business day after delivery to such
service.
20.2 Quiet Enjoyment. Landlord covenants and agrees that Tenant, upon paying the
Additional Rent, and upon observing and keeping the covenants, agreements
and conditions of this Lease on its part to be kept, observed and
performed, shall lawfully and quietly hold, occupy and enjoy the Premises
(subject to the provisions of this Lease) during the Term without hindrance
or molestation by Landlord or by any person or persons claiming under
Landlord.
20.3 Estoppel Certificate. Tenant and Landlord, each without charge at any time
and from time to time, within thirty (30) days after written request by the
other party, shall certify by written instrument, duly executed,
acknowledged and delivered to any Mortgagee, assignee of a Mortgagee,
proposed Mortgagee, or to any purchaser or proposed purchaser or transferee
of the Landlord, Tenant or the Premises or any interest therein:
(a) That this Lease is unmodified and in full force and effect (or, if
there have been modifications, that the same is in full force and
effect, as modified, and stating the modifications);
(b) The dates to which the Additional Rent and other sums have been paid
in advance; and
(c) To the actual knowledge of the certifying party, whether or not there
are then existing any breaches or defaults by the certifying party or
by the other party and known by the certifying party under any of the
covenants, conditions, provisions, terms or agreements of this Lease,
and specifying such breach or default, if any, or any set-offs or
defenses against the enforcement of any covenant, condition,
provision, term or agreement of this Lease upon the part of Landlord
or Tenant, as the case may be, to be performed or complied with (and,
if so, specifying the same and the steps being taken to remedy the
same).
20.4 Invalid Provisions; Governing Law. If any covenant, condition, provision,
term or agreement of this Lease shall, to any extent, be held invalid or
unenforceable, the remaining covenants, conditions, provisions, terms and
agreements of this Lease shall not be affected thereby, but each covenant,
condition, provision, term or agreement of this Lease shall be valid and in
force to the fullest extent permitted by law. This Lease shall be construed
and be enforceable in accordance with the laws of the State of Colorado
applicable to contracts made and to be fully performed therein.
20.5 Binding Effect. The covenants and agreements herein contained shall bind
and inure to the benefit of Landlord and its successors and assigns, and
Tenant and its successors and assigns.
20.6 Captions. The caption of each article of this Lease is for convenience and
reference only and in no way defines, limits or describes the scope or
intent of such article or of this Lease.
20.7 Relationship of Parties. This Lease does not create the relationship of
principal and agent, or of partnership, joint venture, or of any
association or relationship between Landlord and Tenant, the sole
relationship between Landlord and Tenant being that of landlord and tenant.
20.8 Entire Agreement. All preliminary and contemporaneous negotiations are
merged into and incorporated in this Lease. This Lease (and all exhibits
and addenda hereto) contains the entire agreement between the parties and
shall not be modified or amended in any manner except by an instrument in
writing executed by the parties hereto.
20.9 Time of the Essence. Time is of the essence of this Lease, and all
provisions herein relating thereto shall be strictly construed.
20.10 No Broker. Each party represents and warrants to the other that it has not
dealt with any broker in connection with this Lease and agrees to
indemnify and hold the other party and its agents, officers, directors,
shareholders, partners, members and employees harmless from all losses,
damages, liabilities, claims, liens, costs and expenses, including,
without limitation, attorneys' fees, arising from any claims or demands of
any broker or brokers, salespersons or finders for any commission or fee
alleged to be due such broker or brokers, salespersons or finders, based
upon a breach of the foregoing representation.
20.11 Selection of Counsel. To the extent either party indemnifies and agrees to
defend the other under the terms of this Lease, the indemnifying party
shall have the right to select counsel to undertake such defense, which
counsel shall be reasonably acceptable to the indemnified party.
20.12 Approvals. Subject to specific conditions as to consents and approvals
provided for in other sections of this Lease, no consent or approval
required under this Lease shall be unreasonably withheld, conditioned or
delayed. Whenever in this Lease Landlord's approval and/or consent is
required, such approval and/or consent shall be in writing.
20.13 Counterparts. This Lease may be executed in counterparts, each of which
when taken together shall constitute one instrument.
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20.14 Joint Negotiation. This Lease represents the product of the joint
negotiation, preparation and agreement of and between the parties hereto
and is not to be construed against one party or the other as the principal
drafter.
20.15 Waiver. A waiver by Landlord or Tenant of any of the covenants, terms,
conditions, agreements or undertakings of this Lease, or of any breach
thereof will not be deemed a waiver of such covenant, term, condition,
agreement or undertaking hereof, or of any subsequent breach hereof. The
receipt by Landlord of Rent with knowledge of any default, Event of
Default or the breach of any covenant of this Lease will not be deemed a
waiver of such default, Event of Default or breach. No payment by Tenant
or receipt by Landlord of a lesser amount than the Rent or other sums
herein stipulated will be deemed to be other than on account of the
earliest stipulated Rent or other sums, nor will any endorsement or
statement on any check or any letter accompanying any check or payment of
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 Additional Rent or other sums or pursue any other remedy
in this Lease provided.
20.16 Cumulative Remedies. Subject to the limitations specifically set forth in
Section 20.17, no remedy herein or otherwise conferred upon or reserved to
Landlord or Tenant shall be considered to exclude or suspend any other
remedy, but the same shall be cumulative and shall be in addition to every
other remedy given in this Lease, or now or hereafter existing at law or
in equity or by statute.
20.17 Limitation of Liability. Tenant agrees to look solely to Landlord's estate
and interest in the Premises for the satisfaction or collection of any
judgment (or other judicial process) requiring the payment of money
recovered against Landlord in the event of any liability by Landlord, and
no other property or assets of Landlord or property or assets of
Landlord's managers, members, agents, representatives or employees will be
subject to levy, execution, attachment, or other enforcement procedure for
the satisfaction of Tenant's remedies under or with respect to this Lease,
the relationship of Landlord and Tenant hereunder, Tenant's use and
occupancy of the Premises, or any other liability of Landlord to Tenant.
20.18 Waiver of Trial by Jury. To the extent permitted by applicable law,
Landlord and Tenant hereby waive trial by jury in any action, proceeding
or counterclaim brought by either against the other in any matter
whatsoever arising out of or in any way connected with this Lease.
20.19 Force Majeure. Landlord and Tenant shall each be excused for the period of
any delay in the performance of any of their respective obligations
hereunder (other than the obligations of the Tenant to pay any Rent due
hereunder) when such delay is occasioned by causes beyond such parties
respective reasonable control, including but not limited to work
stoppages, boycotts, slowdowns or strikes; shortages of materials,
equipment, labor or energy; unusually inclement weather conditions; or
acts or omissions of governmental or political bodies.
20.20 Interest and Late Payments. If any payment of Rent to Landlord remains
unpaid for a period of five days after it is due, interest will accrue
thereon from the original due date until paid, at a rate equal to the
Prime Rate plus 3% per annum. The "Prime Rate" means the prime rate of
interest charged by Key Bank as it may change from time to time, and may
not necessarily be the lowest rate of interest charged by such financial
institution. In addition, if any payment of Rent to Landlord remains
unpaid for a period of 15 days after its due date, Tenant will pay to
Landlord a late payment in an amount equal to the greater of 5% of the
delinquent amount, or $500.00. Tenant agrees that such late payment is to
compensate Landlord for the additional administrative charges and burdens
placed upon Landlord as a result of the late payment and does not
represent a penalty. Notwithstanding any provision of this Lease to the
contrary, in no event will Tenant be obligated to pay to Landlord, as
interest and late payments, an amount that would be considered to exceed
the highest interest rate that may be charged under Colorado law.
20.21 Attorneys Fees In the event of litigation under this Lease, the prevailing
party will be paid its reasonable attorneys fees and costs incurred
therewith, by the other party.
20.22 Holdover. If Tenant retains possession of the Premises or any part thereof
after the expiration or earlier termination of the Lease, then in addition
to any remedy that is otherwise available to Landlord, Tenant will pay to
Landlord for each month or portion thereof that it remains in possession,
an amount equal to twice the monthly amount of Base Rent payable for the
final full calendar month of the Lease, plus all Additional Rent. In
addition thereto, Tenant will pay the Landlord for all actual
out-of-pocket damages, consequential as well as direct, sustained by
reason of Tenant's retention of possession. In such circumstances, Tenant
will be a tenant at sufferance and Tenant's occupancy will otherwise be
upon all other terms of the Lease. Nothing in this paragraph will be
construed as Landlord's permission for Tenant to retain possession of any
portion of the Premises beyond the expiration or earlier termination of
the Lease, and Landlord will not be deemed to have approved any such
retention of possession unless expressly stated by Landlord in a separate
written instrument executed by Landlord.
20.23 Signs. Tenant may at its expense install a sign, subject to the approval
of Landlord which will not be reasonably withheld and subject to
applicable governmental regulations. Any such sign installed by Tenant
will be removed by Tenant at its expense prior to the expiration or
earlier termination of the Lease.
20.24 Intentionally Left Blank.
20.25 Extension of Term. Not later than 18 months prior to the expiration of the
Term, Tenant may give written notice to Landlord that it wishes to extend
the Term for an additional one-year period. Within 45 days after receipt
of the notice, Landlord will advise Tenant if, in the exercise of its sole
discretion, it agrees to extend the Term. If Landlord agrees to do so, the
expiration date of the Lease will be extended by one year and all
provisions of the Lease will remain in full force and effect, including
without limitation the amount of monthly Base Rent, except that there will
be no further extensions of the Lease beyond the one-year extension and
Landlord will not provide Tenant with any additional tenant improvement
allowance. If Landlord does not agree in writing within the 45-day period
to the requested extension of the Term, the expiration date of the Lease
will remain the same. If Tenant fails to give written notice to Landlord
under this paragraph by the deadline specified in the first sentence of
this paragraph, Tenant has no further right to request an extension of the
Term under the provisions hereof.
20.26 Parking. Tenant has the license to use that proportion of the number of
parking spaces serving the Building equal to a fraction, the numerator of
which is the number of rentable square feet in the Building for which
Tenant is paying Base Rent, and the denominator of which is the number of
rentable square feet in the entire Building. Landlord has the right to
implement any parking program that it desires, provided that Tenant will
not be charged for its use of any of the parking spaces allocated to
Tenant and provided further that the number of parking spaces allocated to
Tenant will not decrease below the number specified in the first sentence
of this paragraph. Tenant agrees to comply with the requirements of any
such parking program implemented by Landlord.
20.27 Elevator Access. To the extent that Tenant desires to or is required to
provide access on the elevator for any of its employees or visitors for
reasons relating to accessibility, Landlord will arrange for access to the
elevator promptly upon request and as may be required by the Americans
With Disabilities Act or other similar laws.
20.28 Security System. Tenant will be permitted to use the existing security
system in the Building at the Tenant's expense.
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IN WITNESS WHEREOF, each of the parties has caused this Lease to be duly
executed as of the day and year first above written.
TENANT:
ORALABS, INC., a Colorado corporation
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Xxxxxxx X. Xxxxxx, Authorized Director
LANDLORD:
00000 XXXX XXXXX XXXXX, XXX,
a Colorado limited liability company
By /s/ Xxxx X. Xxxxxxxxx
---------------------
Xxxx X. Xxxxxxxxx, Sole Member
9
