COMMERCIAL LEASE
THIS LEASE AGREEMENT made this 23 day of December, 1997, by and between
Xxxx or Xxxxxx Xxxxxxx, hereinafter called "Landlord," and Spectranetics, Inc.,
hereinafter called "Tenant".
1. LEASE PROMISES: Landlord hereby: leases to Tenant. and Tenant hereby leases
from Landlord, the premises known as 000 Xxxxxxxx Xxxxx containing 2500 square
feet.
2. TERM: To have and to hold the leased premises unto Tenant for a term of 24
months commencing on the 1st day of January 1998. and ending on the, 31st day of
December, 2000. unless sooner terminated as hereinafter provided.
3. RENT: Tenant agrees to pay total sum of $27,083.40 in U.S. dollars. This is
a modified gross lease and Landlord is responsible for the exterior of the
building, taxes, land maintenance, exterior utilities and fire insurance on the
structure only. All other utilities, additional tenant finish, garbage and other
services are the responsibility of the Tenant.
(a) The rent shall be paid in equal monthly installments of $1100.95, IN
ADVANCE, on or before the 1st day of each monthly period of this lease to the
Landlord at the address of 000 Xxxxxxxx Xxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx
00000. One monthly installment of the rent shall be due and payable on or before
the first day of the execution of the lease by the Tenant for the first month's
rent. Rents for the last 12 months period will be paid in equal monthly
installments of $1156.00.
(b) This lease is expressly contingent upon Tenant providing to Landlord a
certificate of fire and liability insurance.
(c) All rents, as provided in this lease, are secured by the furniture,
fixtures and equipment of the Tenant.
(d) All expenses incurred by the Tenant, are the sole responsibility of the
Tenant. If, however, the Tenant creates a situation whereby the Landlord incurs
expenses brought on by the Tenant's neglect or the Tenant causes the property to
be encumbered in any way, the Landlord shall have the right to call these
expenses as rents and in the event of nonpayment, landlord shall have all the
rights and remedies as herein provided for failure to pay rent.
(e) The Tenant is responsible for ALL Tenant finish, and cannot encumber or
cause to encumber the premises or any adjoining premises or any other premises
not owned by the Tenant.
(f) There is a ten (10) days "grace" period after the first of the month to
pay rents.
(g) LATE CHARGES: In the event the rent provided for herein not received by
Landlord on the first day of each monthly period and extends beyond the "grace
period", a late charge equal to one quarter percent (1/4%) of the monthly rental
amount shall be due and payable to Landlord for each day of delinquency up to 25
days and one percent (1%) for each day over 25 days. If rent is mailed, Tenant
is responsible for loss or mail delay. Nothing contained herein shall obligate
the Landlord to accept the rent after the "grace period", nor does the Landlord
waive any of its legal rights which may be available for default of Tenant by
inclusion of this provision in this Commercial lease. In
the event Tenant pays rent by check and the check is not honored by the
Landlords bank, there will be a charge of thirty ($30) dollars for each
returned check, in addition, Tenant remains responsible for current rents and
any additional charges incurred by the Landlord for late rents.
1. USAGE: Tenant warrants and represents to Landlord that premises shall be
used and occupied only for the purposes of Light Manufacturing and/or Office
use. Use of toxic chemicals is not permitted. Tenant shall not create any
nuisance or otherwise interfere with, annoy or disturb any other Tenant. Tenant
shall not commit, or suffer to be committed, any waste on the premises, nor
shall Tenant permit the premises to be used in any unlawful activity or way
which would, in the opinion of the Landlord, be extra hazardous or illegal.
Tenant accepts the Premises subject to all matters of record and to all
applicable laws.
5. SERVICES: Tenant shall pay all charges for gas, electricity, and other
utilities used by the Tenant on Premises during the term of this lease. If
possible, all such utilities shall be separately metered and billed in Tenant's
name. In the event that a separate itemization is not available, Tenant shall
pay its pro rata portion based on square footage or other pro rata method deemed
equitable by the Landlord. Tenant shall be responsible for all telephone and
telecommunication charges.
(a) Landlord's failure to any extent to furnish these defined services. or any
cessation thereof, shall neither render Landlord liable in any respect for
damages either person or property, be constructed as an eviction or partial
eviction of Tenant, work as an abatement of rent, nor relieve Tenant from
fulfillment of any covenant in this lease.
6. REPAIRS AND MAINTENANCE: Unless otherwise expressly provided, Landlord
shall maintain only the roof, foundation, Common parking area, common landscaped
area, heating and air conditioning and soundness of the exterior walls
(excluding all exterior glass and exterior or overhead doors) of the building in
good repair and condition except for reasonable wear and tear. Tenant shall pay
for the repair of any damage caused by the negligence or default of Tenant or
Tenant's agents, invites and employees. Landlord shall not be liable to Tenants
except as expressly provided in this lease, for any damage or inconvenience, and
Tenant shall not be entitled to any abatement or reduction of rent be reason of
any repairs, alterations or additions made by Landlord under this lease.
(a) Tenant shall forthwith at its expense replace any cracked or broken
glass used in the leased premises.
(b) Tenant, at its own expense, shall maintain all bathroom fixtures, door
hardware, lighting fixtures, floor coverings, interior paint decorating in a
good clean, safe, and wholesome condition at all times during the term of this
lease.
(c) Tenant is to return the premises to the Landlord at the termination of
this lease in as good of condition as existed at the "commencement date" of this
lease, ordinary wear and tear expected as defined by the Landlord. The cost for
any repairs or maintenance work to bring the premises to such condition shall be
borne by the Tenant and full or partial remedy may come from Tenants "deposit".
(d) Landlord shall not have any liability for loss or damage to Tenant's
work or to fixtures, equipment or other property of Tenant installed or placed
by Tenant in the leased premises. Any occupancy by Tenant prior to beginning the
term, even though rent
free, shall in all other respects be the same as that of a Tenant under this
lease and by such occupancy, Tenant shall be bound by all terms of this
lease. By occupying the leased premises, as a Tenant, or to complete Tenant's
work install fixtures, facilities or equipment, or to perform finishing work,
Tenant shall be deemed to have accepted the same and acknowledged that the
leased premises are in the condition required by the Landlord's covenants.
Occupancy by the Tenant, before the term will be prorated to the number of
days of occupancy, unless rent free.
(e) While the Landlord will provide snow removal of the parking lot when the
snow exceeds 2 inches, it is subject to snow removal contractor availability.
7. COMMON AREAS: The term "common areas" shall mean all that portion of
building improvements, grounds, parking, and landscaping which is constructed
for lease to Tenants or hereafter leased to Tenants. Tenant shall not at any
time interfere with the rights of Landlord and other tenants, and their
employees, customers and invites, to use any part of the common areas. The
Landlord has the right to erect "for rent", "for lease" or "for sale" signs on
the common area as well as add any improvements as required by the Landlord.
8. ALTERATIONS AND IMPROVEMENTS: Written approval by the Landlord for any and
all alterations and improvements is required. Landlord may at its option,
require Tenants, at the expense of the Tenant, to remove any physical additions
and/or repair and alteration in order to restore the Premises to the condition
existing at the time Tenant took possession.
9. LIENS ON PREMISES: Tenants shall not permit any lien to be placed and
remain on the premises, building or common areas as a result of its conduct for
any reason. Tenant shall also post notice pursuant to Colorado Revised Statutes,
1997, as amended, 00-00-000, et Seq. Negating Landlord's liability for any
mechanic's liens resulting from any work, request for incorporation into the
premises.
10. CONDEMNATION: If, during the term of this lease, all or a substantial part
of the premises are taken for any public or quasi-public use under any
governmental law, ordinance or regulation, or by right of eminent domain or by
purchase in lieu thereof, and the taking would prevent or materially interfere
with the use of the premises by the Tenant for the purpose for which they are
then being used, this lease shall be terminated and all rents shall be abated
during the unexpired portion of the lease effective on the date physical
possession is taken by the condemning authority. Tenant agrees that it shall
have no claim to the condemnation award.
11. INSURANCE: The Landlord shall at all times during the Term of the lease,
maintain a policy or policies of insurance as landlord deems appropriate.
Landlord shall not be obligated in any way or manner to insure any personal
property of the Tenant. Tenant shall, at Tenant's expense, maintain such other
liability insurance in the amount of $1,000,000 or more as Tenant deems
appropriate to protect Tenant and landlord from liability loss and/or the loss
of the entire or portion of Landlords building due to neglect
and/or caused by Tenant. A current copy of the Tenant's insurance policy is
to be maintained by the Landlord.
12. WAIVER OF SUBROGATION: Anything in this lease to the contrary
notwithstanding, Landlord and Tenant hereby waive and release each other of and
from any and all rights of recovery, claim, action or cause of action against
each other, their agents, officers and employees, for any loss or damage that
may occur to the premises. Improvements to the common areas or building of
which the premises are a part, or personal property (building contents) within
the building, by reason of fire or the elements regardless of cause or origin,
where such loss or damage is insured against and subject to an insurance policy
in force at the time of such loss or damage. Because this paragraph will
preclude the assignment of any claim mentioned herein by way of subrogation or
otherwise to an insurance company or any other person, each party to this lease
agrees immediately to give each insurance company which has issued to its
policies of insurance covering all risk of direct physical loss, written notice
of Terms of the mutual waivers contained in this paragraph, and to have the
insurance policies properly endorsed, if necessary, to prevent the invalidation
of the insurance coverages by reason of the mutual waivers contained in this
paragraph.
13. INDEMNITY: Tenant shall indemnify and hold harmless landlord from and
against any and all claims arising from Tenant's use of the premises, or from
the conduct of Tenant's business or from activity, work or things done,
permitted or suffered by Tenant, in or about the premises or elsewhere. In case
any action or proceeding be brought against landlord by reason of such claim,
Tenant shall defend the same at Tenant's expense by counsel satisfactory to
Landlord. Tenant hereby assumes all risk of damage to property or injury to
persons in, upon or about the premises arising from the cause and Tenant hereby
waives all claims in respect thereof against landlord. Tenant hereby agrees
that Landlord shall not be liable for injury to Tenant's business or any loss of
income therefrom or damage to the goods, xxxx, merchandise or other property of
Tenant, Tenant's employees, invites customers, or any other person in or about
the premises; nor shall landlord be liable for injury to the person of Tenant,
Tenant's employees, agents, or contractors, whether such damage or injury is
caused by or results from fire, explosion, stream, electricity, gas, water,
rain, or form breakage, leakage, obstruction, other damage or injury results
from conditions arising upon the premises or upon other portions of the new
building of which the premises are a part, or from other sources or places, and
regardless of whether the cause of such damage or injury or the means of
repairing the same is inaccessible to Tenant.
14. FIRE OR OTHER CASUALTY: In the case the building shall be partially or
totally destroyed by the fire or other casualty insurable under standard fire
insurance so as to become partially or totally untenable, the same shall be
repaired as speedily as possible at the expense of the Landlord, unless Landlord
shall elect not to rebuild, as hereinafter provided, and an equitable part of
the rent shall be abated until so repaired based upon the time and to the extent
the leased premises are untenable. If the Landlord determines not to rebuild or
repair premises of the Tenant, the Landlord will notify the Tenant of those
intentions in writing within 60 days of the casualty loss. In no event in the
case of any
such destruction shall Landlord be required to repair or replace Tenant's
stock in trade, lease hold improvements, fixtures, equipment furnishings, or
floor coverings. Tenant covenants to make such repairs and replacements and
to furnish Landlord on demand evidence of insurance assuring its ability to
do so.
I5. LANDLORD'S RIGHT OF ENTRY: Landlord shall during the term hereof, have the
right to enter and inspect the premises, with or without the Tenants approval at
any time. The Landlord will attempt, but not limited to, to enter when Tenant is
present.
16. ASSIGNMENT OR SUBLEASE: Tenant shall not assign or in any manner transfer
this lease or any interest therein, nor sublet said leased premises or any part
or parts hereof, nor permit occupancy by anyone without the prior written
consent of the Landlord. Landlord shall not unreasonably withhold consent. In
the event of any subletting, the Tenant shall nevertheless at all times, remain
fully responsible and liable for rent payments and for compliance of with all
its other obligations under the terms, provisions and covenants of this lease.
In the event of any assignment of this lease, the Tenant shall be liable only
for the first thirty (30) days of rent of the pre-approved assignee. Any
collection directly by Landlord from the assignee or subtenant shall not be
construed to constitute a release of Tenant from the further performance of its
obligations under the lease.
17. TENANT DEFAULT: The following events shall be deemed to be events of default
by Tenant under this lease:
(a) Tenant shall fail to pay any installment of the rent hereby reserved and
such failure shall continue for a period of ten (10) days.
(b) Tenant fails to comply with any term, provision or covenant of this lease,
other than the payment of rent, and shall not cure such failure within thirty
(30) days after written notice thereof to Tenant.
(c) Tenant shall become insolvent, or shall make a transfer in fraud of
creditors, or shall make an assignment for the benefit of creditors.
(d) Tenant shall file a petition under any section or chapter of the National
Bankruptcy Act, as amended or under any similar law or statute of the United
States or any State thereof; or Tenant shall be adjudged bankrupt or insolvent
in proceedings filed against Tenant thereunder.
(e) A receiver or Trustee shall be appointed for all or substantially all of the
assets of Tenant.
(f) Tenant shall desert or vacate any substantial portion of the premises. Upon
the occurrence of any notice of demand whatsoever:
(i) Terminate this lease, in which event Tenant shall immediately surrender
the premises to Landlord, and if Tenant fails so to do, Landlord may,
without prejudice to any other remedy which it may have for possession or
arrearages in rent, enter upon and take possession of the leased premises
and expel or remove Tenant and any other person who may be occupying said
premises or any part thereof, by force if necessary, without being liable
for prosecution or any claim of damages therefor; and Tenant agrees to pay
to Landlord on demand the amount of all loss and damage which Landlord may
suffer by reason of such termination, whether through inability to relet
the premises on satisfactory terms or otherwise, including any damages
Landlord may incur because of special sums expended for fixing up premises
for Tenant.
(ii) Enter upon and take possession of the leased premises and expel or
remove Tenant and any other person who may be occupying said premises or
any part thereof, by force if necessary, without being liable for
prosecution or any claim for damages therefor, and relet the premises and
receive the rent therefor, and Tenant agrees to pay the Landlord on
demand and deficiency that may arise by reason of such reletting.
(iii) Enter upon the leased premises, by force if necessary, without be
liable for prosecution or any claim for damages thereof and do whatever
Tenant is obligated to do under the terms of this lease: and Tenant agrees
to reimburse Landlord on demand for any expenses which Landlord may incur
in thus effecting compliance with Tenant's obligations under this lease,
and Tenant further agrees that Landlord shall not be liable for any
damages, resulting to the Tenant from such action whether cause by
negligence of Landlord or otherwise.
Pursuit of any of the foregoing remedies shall not preclude pursuit of any
of the other remedies herein provided or any other remedies provided by
law, nor shall pursuit of any remedy herein provided constitute a
forfeiture or waiver of any waiver of any rent due to Landlord hereunder
or of any damages accruing to Landlord by reason of the violation of any
of the terms, provisions and covenants herein contained. No waiver by
Landlord or any violation or breach of any of the terms, provisions,
and covenants herein contained, shall be deemed or construed to constitute
a waiver of any other violation or breach of any of the terms, provisions,
and covenants herein contained. Forbearance by Landlord to enforce one or
more of the remedies herein provided upon an event of default shall not be
deemed or construed to constitute a waiver of such default.
18. LANDLORDS LIEN AND UNIFORM COMMERCIAL CODE: As security for Landlord;
payment of rent, damages and all other payments required to be made by this
lease, Tenant hereby grants the Landlord a lien, secondary to Silicon Valley
Bank, upon all property of Tenant now or subsequently located upon the Leased
Premises. If Tenant abandons or vacates any substantial portion of the Leased
Premises or is in default of the payment of any rentals, damage or other
payments required to be made by this Lease, Landlord may enter upon the
Leased Premises, by force if necessary, and take possession of all or any
part of the personal property, and may sell all or any part of the personal
property at a public or private sale, in one or successive sales, with or
without notice, to the highest bidder for cash and on behalf of Tenant, sell
and convey all or part of the personal property of the bidder, delivering to
the bidder all of the Tenant's title and interest in the personal property
sold to him/her. The proceeds of the sale of the personal property shall be
applied by the Landlord toward the cost of the sale and then toward the
payment of all sums then due by Tenant to Landlord under the terms of this
Lease. The statutory lien for rent is not hereby waived, the express
contractual lien herein granted being in addition and supplementary thereto.
To the extent, if any, this Lease grants Landlord, or recognizes in Landlord,
any lien or lien rights greater than provided by the laws of the state in
which the Leased Premises are located pertaining to Landlord's liens, this
Lease is intended as and constitutes a security agreement within the meaning
of the Uniform Commercial Code of such state and, Landlord, in addition
to the rights prescribed in this Lease, shall have all of the rights, titles,
liens and interests in and to Tenant's property now or hereafter located upon
the Leased Premises which are granted a secured party as that term is
defined, under such state's Uniform Commercial Code to secure the payment to
Landlord of the various amounts provided in this Lease and in compliance with
the Uniform Commercial Code.
19. ACTS OF GODS: Landlord shall not be required to perform any covenant or
obligation in this Lease, or be liable in damages to Tenant, so long as the
performance or non-performance of the covenant or obligation is delayed,
caused by or prevented by an act of God or force majeure. Act of God and
Force Majeure shall mean strikes, lockouts, sit-downs, material or labor
restriction, delays by any municipal, governmental and/or quasi-governmental
authority, unusual transportation delays, material or supply shortages or
back order, riots, floods. freezing, washouts, explosions, earthquakes, fire,
storms, acts of the public enemy, acts of vandals, wars, insurrections,
delays by utility suppliers, and any other cause not reasonably within the
control of the Landlord and which by the exercise of due diligence Landlord
is unable, wholly or in part, to prevent or overcome.
20. ATTORNEY'S FEES: In the event Tenant defaults in the performance of any
of the terms, covenants, agreements or conditions contained in this Lease,
the collection of any rent due or to become due or the recovery of the
possession of the premises, Tenant agrees to pay Landlord's attorney fees. In
the event, suit is brought against the Landlord and Landlord is found to be
"at fault". Landlord shall pay the Tenant's Attorney's Fees.
21. HOLDING OVER: In the event of holding over by the Tenant after the
expiration or termination of this extension, the holdover shall be as a
Tenant at will and all of the terms, provisions and covenants of this lease
shall continue if force except that rents will be an amount equal to 1-1/2
times the rent which would have been payable by Tenant had the hold over
period been apart of the original term of this lease.
22. RIGHTS OF FIRST MORTGAGEE OR SUBSEQUENT TRANSFEREES: Tenant accepts this
lease subject and subordinate to any recorded deed conveying title, first or
other mortgage deed of trust lien presently existing or hereafter created
upon the premises, building and/or common areas. Tenant agrees upon demand
and in a reasonable time period to execute additional instruments
subordinating this lease as Landlord may require.
23. ESTOPPEL CERTIFICATES AND ATTORNMENT: Tenant agrees to furnish promptly,
from time to time. upon request of Landlord or Landlord's mortgagee a
statement certifying that the Tenant is in possession of the premises: the
premises are acceptable: the lease is in full force and effect: the lease is
unmodified: Tenant claims no present charge, lien, or claim of offset against
rent: the rent is paid for the month, but is not prepaid for more than one
month in advance: there is no existing default by reason of some act or
omission by Landlord: and such other matters as may be reasonably required
for foreclosure, or in the event of exercise of the power of sale under any
mortgage or deed of trust made by the Landlord under this lease. No mortgagee
shall be liable for any act or omission of Landlord, be bound by any payment
of rent, additional rent or any other charge made more than thirty (30) days
in advance of the due date thereof, or be bound by any assignment, surrender,
termination, cancellation amendment or modification of the lease without the
express written consent of
the mortgagee.
24. GOVERNING LAW: This lease is made and delivered in the State of Colorado
and shall be interpreted, construed, and enforced in accordance with the laws
thereof.
25. SUCCESSORS: This lease shall be binding upon and inure to the benefit of
Landlord and Tenant and their respective heirs, personal representatives,
successors and assigns.
26. TIME OF ESSENCE: Time is of the essence in this lease.
27. MISCELLANEOUS: The captions appearing in this lease are inserted only as
a matter of convenience and in no way define, limit, construe or describe the
scope or intent of such paragraph. If any provision of this lease shall ever
be held to be invalid or unenforceable, such invalidity or unenforceability
shall not affect any other provision of this lease, and all other provisions
shall continue in full force and effect.
28. NON WAIVER: The receipt by Landlord of rent with knowledge of the breach
on any covenant of this lease shall not be deemed a waiver of such breach and
no provision of this lease shall be deemed to have been waived by the
Landlord unless such waiver be in writing signed by the Landlord.
29. Notice: All written notices, rent and other payments required to be made
by Tenant shall be payable to Landlord at the address set forth below, or at
such other address as Landlord may specify from time to time by written
notice.
Landlord: Xxxx or Xxxxxx Xxxxxxx
000 Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Any notices will be mailed to the address set forth below, or at such other
address as Tenant may specify from time to time by written notice.
Tenant: Spectranetics, Inc.
000 Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
30. ENTIRE AGREEMENT AND LIMITATION OF WARRANTES: It is expressly agreed by
Tenant, as a material consideration for the execution of this lease: that
this lease, with the specific references to written extrinsic documents, is
the entire agreement of the parties; that there are. and were no verbal
representations, warranties, understandings, stipulations, agreements or
promises pertaining to this lease or the expressly mentioned written
extrinsic documents not incorporated in writing in this lease. Landlord and
Tenant expressly agree that there are and shall be no implied warranties
which extend beyond those expressly set forth in this lease. It is likewise
agreed that this lease may not be altered, waived, amended or extended except
by an instrument in writing signed by both Landlord and Tenant. There are a
total of seven (7) pages in this lease.
Signed in County of El Paso, City of Colorado Springs, State of Colorado on this
______ of ________, 1997.
Landlord: Tenant:
By: (signed) Xxxx Xxxxxxx By: (signed) Xxxxx X. XxXxxxxxx
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Landlord VP Finance
