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EXHIBIT 10.2
LEASE AGREEMENT
THIS LEASE AGREEMENT (hereinafter the "Lease") is dated November 6,
1996 and is by and between AVALON INVESTMENT COMPANY, a California partnership
(hereinafter the "LANDLORD") and NEXSTAR PHARMACEUTICALS, INC., a Delaware
corporation, (hereinafter the "TENANT").
R E C I T A L S
A. Landlord is the owner of certain real estate legally described
in Exhibit A located in Boulder, Colorado, and commonly known as 0000
Xxxxxxxxxx Xxxxx, Xxxxx X, X, X, X and E, (hereinafter the "REAL ESTATE"). The
Real Estate is improved with a(n) industrial building (hereinafter the
"IMPROVEMENTS") (the Real Estate and improvements are collectively referred to
as the "PROPERTY").
B. Tenant is desirous of leasing a certain portion of the
Property from Landlord pursuant to the terms and conditions contained herein.
C. Landlord is desirous of leasing a portion of the Property to
Tenant pursuant to the terms and conditions contained herein.
NOW, THEREFORE, for good and valuable consideration recited herein,
including payment of rent and the other covenants, conditions and agreements,
Landlord and Tenant agree as follows:
1. PREMISES.
1.1 DEMISE. Landlord hereby leases and demises to Tenant
the following described portion of the Property:
UNITS A, B, C, D, E, CONSISTING OF APPROXIMATELY 9815 SQUARE
FEET IN INTERIOR AREA (hereinafter the "PREMISES"). The Premises are more
specifically described in Exhibit B attached hereto.
1.2 LICENSES. Additionally, for the Term, Landlord grants
to Tenant a Parking License and Common Area License, both of which are
hereafter defined.
1.3 PARKING. Landlord further grants to Tenant, its
employees and invitees a non-exclusive license for the use of 25** parking
spaces upon the Property (hereinafter the "PARKING LICENSE"). The Parking
License shall be effective for the term of this Lease as defined below.
Landlord reserves the right to designate specific spaces for the Parking
License. ** INCLUDED IN THE 25 ARE THE EXCLUSIVE USE OF 12 SPACES IN THE
BUILDING'S FRONT LOT, AS CURRENTLY GRANTED TO DDX.
1.4 COMMON AREAS. The "COMMON AREAS" are all areas
outside of the Premises upon the Property designated by Landlord for common use
of Tenant, its employees, licensees, invitees, contractors and Landlord.
Landlord grants to Tenant, its employees, licensees, invitees and contractors a
non-exclusive license over such Common Areas of Property which are necessary to
the use and occupancy of Premises and Parking License (hereinafter the "COMMON
AREA LICENSE"). Said License shall be effective for the Term of this Lease.
Tenant shall not use Common Areas for any type of storage or parking of trucks,
trailers or other vehicles without the advance written consent of Landlord.
1.5 CONTROL OF COMMON AREAS. All parking and Common Areas
of Property shall at all times be subject to the management of Landlord. Same
shall not be deemed part of the Premises.
1.6 LIMITED USE OF PREMISES. The Premises shall be used
for: Research, development, laboratory, manufacturing, and related offices.
Tenant shall not, without the prior written consent of Landlord, which consent
shall not be unreasonably withheld, permit the Premises to be used for any
other purpose.
2. TERM/DEPOSIT.
2.1 TERM. THIS LEASE SHALL COMMENCE ON DECEMBER 1, 1996
AND TERMINATE ON NOVEMBER 30, 2001 (HEREINAFTER THE "TERM") unless sooner
terminated by reason of default or otherwise, as provided herein.
3. RENT/UTILITIES.
3.1 DEPOSIT SUM. The "Security Deposit" shall be in the
sum of $9,136.13, which shall be due upon execution of this Lease.
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3.2 BASIC RENT. Tenant shall pay as basic rent for the
Premises the amount of one hundred nine thousand six hundred thirty three
($109,633) annually (hereinafter the "BASIC RENT"). The Basic Rent shall be
payable in equal monthly installments of $9,136.13, in advance, without notice,
on the first (1st) day of the month for which due. The Basic Rent for a period
of less than one month shall be adjusted on a pro-rata basis. Basic Rent shall
be adjusted after the first twelve (12) months of the Term pursuant to
Escalation Rider attached hereto as Exhibit C. Any rent not paid on or before
the first (1st) of the month shall be subject to an additional late charge of
Two Percent (2.0%) of rental payment due.
3.3 UTILITIES. Except as provided herein, Tenant shall be
responsible for the payment of all utility charges upon the Premises and in
conjunction with the Tenant's business including, but not limited to, electric,
natural gas and telephone. Tenant shall contract directly with all utility
providers. All utility payments shall be directed to the respective utility
providers. Payments shall be made in a timely manner.
3.4 LANDLORD PROVIDED UTILITIES. Landlord shall provide
and pay for water and sewer services. Landlord shall also provide and pay for
electrical, lighting and HVAC services in the Common Areas of the Property (if
applicable). Water and sewer shall only be supplied to those points of supply
in existence at this time and only in quantities sufficient for normal use for
washing, drinking and utility uses and not for industrial or manufacturing use.
Tenant shall have the right to upgrade utilities, water and sewer services to
accommodate its industrial uses, at Tenant's expense. Tenant shall pay the cost
of additional quantities it requires.
3.5 INTERRUPTION OF UTILITIES. Tenant agrees that
Landlord shall not be liable by abatement of Rent or otherwise, for failure to
furnish or delay in furnishing any utility service, or for any diminution or
surge thereof. Such failures, delays, diminutions or power surges shall never
be deemed to constitute an eviction or disturbance of the Tenant's use and
possession of the Premises or relieve Tenant from performing any of Tenant's
obligations hereunder, including the payment of Rent, unless such failure or
delay is the result of gross negligence or willful misconduct by Landlord or
its agents or contractors.
4. SECURITY DEPOSIT.
4.1 RECEIPT OF DEPOSIT. To secure the faithful
performance by Tenant of all of the covenants, conditions and agreements in
this Lease, set forth and contained on the part of the Tenant to be observed
and performed and agreements in this Lease which become applicable upon its
termination by re-entry or otherwise, Tenant has deposited with Landlord, and
Landlord acknowledges receipt of, the Security Deposit.
4.2 APPLICATION OF DEPOSIT. The parties agree: (a) that
Security Deposit, or any portion thereof, may be applied to the curing of any
default that may exist, and/or payment of subsequent damages and costs incurred
by Landlord, without prejudice to any other remedy or remedies which the
Landlord may have on account thereof, and upon such application Tenant shall pay
Landlord on demand the amount so applied which shall be added to the Security
Deposit, so the same will be restored to its original amount; (b) that should
the Premises be conveyed by Landlord, the Security Deposit or any portion
thereof may be turned over to Landlord's grantee, and if the same be turned over
and the grantee agrees in writing to be bound by the terms of this Lease as
Landlord, Tenant agrees to look to such grantee for such application or return;
(c) that Landlord shall not be obligated to hold Security Deposit as a separate
fund; (d) that should an Event of Default occur, Landlord may, as an additional
remedy, increase the Security Deposit at its reasonable discretion.
4.3 RETURN OF DEPOSIT. If Tenant shall perform all of its
respective covenants and agreements in this Lease, the Security Deposit or the
part of the portion thereof not previously applied pursuant to the provisions
of this Lease, together with a statement setting forth in reasonable detail any
deductions and attaching receipts or invoices therefor, shall be returned to
Tenant without interest, no later than sixty (60) days after the expiration of
the Term or any renewal or extension thereof, (or such earlier time if required
by applicable law) provided Tenant has vacated the Premises and surrendered
possession thereof to Landlord.
5. USE OF PREMISES.
5.1 SIGNS. Any and all signage of Tenant upon the
Premises shall be subject to the prior written approval of Landlord. All
signage shall be in conformance with local and state laws. All signage shall
conform to aesthetic and design criteria, themes and standards of the Property.
5.2 LEGAL COMPLIANCE. Tenant, its employees and invitees,
shall comply with and abide by all federal, state, county and municipal laws
and ordinances in connection with the occupancy of the Premises and the
Property. Improvements and uses of Premises shall comply with all applicable
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laws, regulations and ordinances. No alcoholic beverages shall be sold by
Tenant, its employees, invitees, agents or contractors upon the Premises or
Property. No controlled substance shall be knowingly permitted upon the
Premises or Property, except as Tenant may legally possess in the conduct of
its business. No use (other than those uses permitted in Section 1.6 hereof)
which shall increase the rate or cost of insurance upon Property shall be
permitted.
5.3 NUISANCE PROHIBITED. Tenant shall not act in any
manner, nor permit employees or invitees to act in any manner, which shall be a
nuisance to other tenants or invitees of the Property or adjacent property
owners or tenants, or which would unreasonably interfere with the other
tenant's quiet employment of their premises. Said prohibition includes, but is
not limited to, unreasonably loud noises, music, noxious or unpleasant odors,
and disruptive behavior or actions.
6. CONDITION, MAINTENANCE AND IMPROVEMENT OF PREMISES AND PROPERTY.
6.1 CONDITION OF PREMISES/WORK LETTER. Tenant is familiar
with the physical condition of the Premises and Property. Landlord makes no
representations or warranties as to the physical condition thereof or its
suitability for Tenant's intended purpose. The Premises are rented AS-IS, in
current condition, and all warranties are hereby expressly disclaimed.
6.2 TENANT IMPROVEMENTS. Unless otherwise provided in
Work Letter, Tenant shall be responsible for any and all improvements and
alterations within the Premises, including, but not limited to, electrical
wiring, HVAC, plumbing, framing, drywall, flooring, finish work, telephone
systems, wiring and fixtures (hereinafter the "TENANT WORK").
6.3 IMPROVEMENTS/PRIOR LANDLORD CONSENT. Tenant agrees to
submit to Landlord for Landlord's approval, which shall not be unreasonably
withheld, complete plans and specifications including engineering, mechanical
and electrical work covering any and all contemplated Tenant Work, and any
subsequent improvements or alterations of the Premises. The plans and
specifications shall be in such detail as Landlord may reasonably require, and
in compliance with all applicable statutes, ordinances, regulations and codes,
and shall be certified by a licensed architect. Within five (5) days
thereafter, Landlord shall notify Tenant of any failures of Tenant's plans to
meet with Landlord's reasonable approval. Tenant shall cause Tenant's plans to
be revised to the extent necessary to obtain Landlord's reasonable approval.
Tenant shall not commence any Tenant Work or any other improvements or
alterations of Premises until Landlord has approved its plans. Landlord has
reviewed and approved in concept Tenant's Conceptual Work Plan, which is
attached hereto as Exhibit D.
6.4 TENANT'S DUTY TO REPAIR. Tenant shall, at Tenant's
sole cost and expense, take good care of, and perform all routine maintenance
of the entire Premises, including, but not limited to, the plumbing, glass,
electric wiring, HVAC equipment, fixtures, appliances, and interior walls,
doorways, and appurtenances belonging thereto installed for the use or used in
connection with the Premises. Tenant shall, at Tenant's own expense, make as
and when needed all routine and ordinary repairs to the Premises and to all
such equipment, fixtures, appliances and appurtenances necessary to keep the
same in good order and condition. In addition, Tenant shall be responsible for
and bear the cost of all and repairs (both ordinary and extraordinary) to
alterations, additions, and improvements installed by Tenant. "Repairs" shall
include all replacements, renewals, alterations and betterments. All Repairs
shall be equal or better in quality and class to the original work.
6.5 LANDLORD'S DUTY TO REPAIR. Landlord shall assume all
responsibility and liability for maintaining the foundation, exterior walls
(excluding all windows, window frames and doors) and roof of the Improvements
in good repair. Landlord shall also be responsible for and bear the cost of any
extraordinary repairs, replacements, or renewals, and for maintenance and
repair of the parking lot and common areas. The cost of any maintenance,
Repairs or replacements necessitated by the act, neglect, misuse or abuse of
Tenant, its agents, employees, customers, licensees, invitees or contractors,
shall be paid by Tenant to Landlord promptly upon billing, unless the cost of
such maintenance, repairs or replacements is covered by Landlord's insurance
maintained pursuant to Section 7.6 hereof. Landlord shall use reasonable
efforts to cause any necessary repairs to be made promptly; provided, however,
that Landlord shall have no liability whatsoever for any delays in causing such
repairs to be made, including, without limitation, any liability for injury to
or loss of Tenant's business, nor shall any delays entitle Tenant to any
abatement of Rent or damages or be deemed an eviction of Tenant in whole or in
part, unless caused by the gross negligence or willful misconduct of Landlord,
or its agents or contractors.
6.6 TENANT WORK/COMPLIANCE WITH CODES. Tenant shall
promptly pay when due the entire cost of any Tenant Work and repairs in the
Premises undertaken by Tenant, so that the Premises shall at all times be free
of liens for labor and materials. Tenant shall procure all necessary permits
before undertaking such work. Tenant shall perform all of such work in a good
and workmanlike manner. Tenant shall employ materials of good quality and
perform such work only with qualified, professional contractors. Tenant shall
comply with all governmental laws, ordinances and regulations including, but not
limited to, building, health, fire and safety codes. Tenant hereby agrees to
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Landlord and Landlord's agents harmless and indemnified from all injury, loss,
claims, or damage to any person or property (including the cost for defending
against the foregoing) occasioned by or growing out of such work.
6.7 WASTE PROHIBITED. Tenant shall not lay waste to the
Premises. Tenant shall not perform any action or practice which may injure the
Premises or Property.
6.8 RUBBISH REMOVAL. Tenant shall keep the Premises and
the Property surrounding Premises free and clear of all debris, garbage and
rubbish. Tenant shall be responsible for contracting for and paying for trash
and debris removal required by its business.
6.9 VIOLATIONS OF CODES PROHIBITED. In the event a
governmental entity notifies Landlord or Tenant as to any violation or alleged
violation of law, ordinance or regulation of any portion of the Premises other
than foundation, roof or exterior walls, parking lot or common areas, it shall
be Tenant's sole obligation to cause same to be remedied, corrected or
dismissed. Tenant shall hold Landlord harmless from costs or damages arising
from any failure on Tenant's part to correct or remedy same in a timely manner.
In the event same relates to the foundation, roof or exterior walls Landlord
shall have a reasonable period of time to remedy, correct or dismiss said
violation. Under no circumstances shall the existence of same be deemed to
constitute an eviction or disturbance of Tenant's use and possession of
Premises or relieve Tenant from performing any obligations hereunder including
the obligation to pay Rent.
6.10 SNOW/ICE REMOVAL. Landlord shall use reasonable
efforts to cause snow to be removed from the parking areas and sidewalks but
shall have no liability whatsoever for any failure to do so unless such failure
is due to Landlord's gross negligence or willful misconduct, or that of
Landlord's agents or contractors.
6.11 COMMON AREA MAINTENANCE. Landlord shall use
reasonable efforts to maintain and repair Common Areas of Property including
walks and parking lots. The cost of any maintenance, repairs, or replacements
necessitated by the act, neglect, misuse or abuse by Tenant, its employees,
licensees, invitees, or contractors shall be paid by Tenant to Landlord.
Landlord shall use reasonable efforts to cause any necessary repairs to be made
promptly; provided, however, that Landlord shall have no liability whatsoever
for any delays in causing such repairs to be made, including, without
limitation, any liability for injury to or loss of Tenant's business, nor shall
any delays entitle Tenant to any abatement of Rent or damages or be deemed an
eviction of Tenant in whole or in part, unless due to the gross negligence or
willful misconduct of Landlord or its agents or contractors.
7. DAMAGE TO PREMISES AND PROPERTY/INDEMNIFICATION/INSURANCE.
7.1 NEGLIGENT DAMAGES. Tenant shall be responsible for
and reimburse Landlord for, any and all damages to the Premises or Property and
persons and property therein, caused by the negligent, grossly negligent,
reckless or intentional acts of itself, its employees, agents, invitees,
licensees or contractors.
7.2 LIABILITY INDEMNIFICATION/INSURANCE. Tenant shall
save Landlord, Landlord's agents and their respective successors and assigns,
harmless and indemnified from all injury, loss, claims or damage to any person
or property while on the Premises or any other part of the Property, or arising
in any way out of Tenant's business, which is occasioned by an act or omission
of Tenant, its employees, agents, invitees, licensees or contractors. Tenant
shall maintain public liability insurance, insuring Landlord, Landlord's
agents, as their interest may appear, against all claims, demands or actions
for injury to or death in an amount of not less than $1 Million arising out of
any one occurrence, made by or on behalf of any person, firm or corporation,
arising from, related to, or connected with the conduct and operation of
Tenant's business, including but not limited to, events in the Premises, and
anywhere upon the Property. Tenant shall also obtain coverage in leased amounts
covering Tenant's contractual liability under the aforesaid hold harmless
clauses.
7.3 FIRE/CASUALLY INSURANCE. Tenant shall maintain plate
glass insurance covering all exterior plate glass in the Premises, fire,
extended coverage, vandalism, and malicious mischief insurance and such other
insurance as Tenant may deem prudent, and also as Landlord may from time to
time reasonably require, covering all of Tenant's stock in trade, fixtures,
furniture, furnishings, floor coverings and equipment in the Premises. At
Tenant's option, Tenant may self-insure for any or all of the foregoing.
7.4 INSURANCE REQUIREMENTS. All of said insurance shall be
in the form and from responsible and well-rated companies satisfactory to
Landlord, shall name Landlord as an additional insured thereunder, and shall
provide that it will not be subject to cancellation, termination or change
except after at least thirty (30) days prior written notice to Landlord. The
policies or duly-executed certificates for the same shall be provided to
Landlord upon request of Landlord.
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7.5 WAIVER OF LIABILITY. Landlord and Landlord's agents
and employees shall not be liable for, and Tenant waives all claims for, damage
to person or property sustained by Tenant, employees, agents or contractors or
any other person claiming through Tenant, resulting from any accident or
occurrence in or upon the Premises or the Property of which they shall be a
part, including but not limited to, claims for damage resulting from: (a) any
equipment or appurtenances becoming out of repair; (b) Landlord's failure to
keep the Property or the Premises in repair; (c) injury done or occasioned by
wind, water, or other natural element; (d) any defect in or failure of
plumbing, heating or air-conditioning equipment, electric wiring or installation
thereof, gas, water and steam pipes, stairs, porches, railings or walks
(including wood stoves); (e) broken glass; (f) the backing-up of any sewer pipe
or downspout; (g) the bursting, leaking or running of any tank, tub, sink,
sprinkler system, water closet, waste pipe, drain or any other pipe or tank in,
upon or about the Property or Premises; (h) the escape of steam or hot water;
(i) water, snow, or ice being upon or coming through the roof, skylight, doors,
stairs, walks, or any other place upon or near such Property or the Leased
Premises or otherwise; (j) the falling of any fixtures, plaster or stucco; (k)
fire or other casualty; (l) any act, omission or negligence of co-Tenants or of
other persons or occupants of said Property or of adjoining or contiguous
buildings or of adjacent or contiguous property; and (m) any Hazardous Materials
or conditions on the Premises, Property or adjacent property, unless any of the
foregoing shall result from the gross negligence or willful misconduct of
Landlord or its agents or contractors.
7.6 LANDLORD INSURANCE. Landlord covenants and agrees to
obtain and keep in full force and effect during the term of the Lease or any
extension thereof, casualty, fire and extended coverage insurance with respect
to the Property and Improvements, in an amount equal to the full replacement
cost thereof, with coinsurance clauses of no less than eighty percent (80%),
and with a deductible in the amount for each occurrence as Landlord, in its
sole discretion, may determine from time to time. Landlord shall be responsible
for paying such deductible, and the proceeds from such insurance shall be the
sole property of Landlord, subject to the terms of this Lease.
7.7 MUTUAL WAIVER OF SUBROGATION. All policies of
insurance obtained by Landlord or Tenant shall contain a waiver of rights of
subrogation as among Landlord, Tenant, and the holder of any mortgage or deed
of trust encumbering the Premises.
8. CONDEMNATION.
8.1 TAKING OF WHOLE. In the event that the entire
Premises shall be condemned or taken by the exercise of eminent domain, this
Lease shall terminate on the date of the taking of possession by the condemning
authority. All rents shall be prorated accordingly.
8.2 PARTIAL TAKING. In the event that less than the
entire Premises shall be condemned or taken by the exercise of eminent domain,
this Lease shall, at the option of either the Tenant or the Landlord, either:
(a) terminate on the date of the taking of possession by the condemning
authority; all rent being pro-rated accordingly, or (b) remain in full force
and effect provided that the Base Rent shall be reduced in proportion to the
square footage lost by virtue of said condemnation. In the event of the
exercise of option (b), if necessary, Landlord at its cost, shall make such
repairs and restorations so as to constitute the remaining Premises a complete
architectural unit.
8.3 CONDEMNATION AWARDS. All condemnation awards shall be
the sole property of Landlord. All awards shall be the sole property of
Landlord whether awards arise from actual taking, damage from the threat of
taking, diminution in the value of the Leased Premises, or other reasons.
9. DAMAGE/RESTORATION OF PREMISES.
9.1 IRREPARABLE DAMAGE. If Property or the Premises shall
be destroyed in whole or in part by fire, the elements or other casualty so as
to render the Premises or any substantial portion thereof unfit for occupancy
and if the parties agree they cannot be repaired within ninety (90) days from
the happening of said injury, then this Lease shall terminate on the date of
such injury.
9.2 REPAIRABLE DAMAGES/NO REPAIR. Landlord shall use best
efforts to repair any portion of the Premises destroyed by fire, the elements
or other casualty, using the proceeds of Landlord's insurance maintained
pursuant to Section 7.6 hereof. If the Premises shall be destroyed in whole or
in part by fire, the elements or other casualty, but despite reasonable best
efforts, Landlord fails to repair the Premises within ninety (90) days, this
Lease shall terminate on the expiration of said ninety (90) days without further
liability on the part of either parties hereto. In the event of such
termination, Tenant shall immediately surrender the possession of the Premises,
and all rights to the Landlord, and Landlord shall have the right immediately
to enter into and take possession of said Premises and shall not be liable for
any loss, damage or injury to the Property or persons of Tenant or occupancy
of, in or upon said Premises. Tenant shall not be liable for rent for said
period. Alternatively, at Landlord's
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option, Landlord may pay to Tenant all of the proceeds received from Landlord's
insurance maintained pursuant to Section 7.6 hereof, plus any applicable
deductible, and delegate responsibility for repairing the damage to Tenant.
Tenant shall then proceed diligently to repair such damage.
9.3 REPAIR OF DAMAGES. If Landlord repairs the Premises
within said ninety (90) days or if Landlord pays Tenant the insurance proceeds
and delegates responsibility for the repairs to Tenant, this Lease shall
continue in full force and effect. Tenant shall not be required to pay rent for
any portion of the one hundred and twenty (120) day period of repair during
which the Premises or any substantial portion thereof are unfit for occupancy.
Rent shall xxxxx pro rata in accordance with the portion that is unfit for
occupancy.
9.4 TERMINATION BY TENANT. In the event the Premises are
destroyed in whole or in any substantial part by fire, the elements, or other
casualty Tenant may, at its option, terminate the Lease. This election must be
exercised by Tenant on or before ten (10) days of the occurrence of such damage
or destruction by providing written notice to Landlord. Such termination shall
not affect Tenant's continued duties and liability which may exist under the
Lease for such damages or other pre-existing liabilities.
10. TENANT'S ADDITIONAL COVENANTS.
10.1 LANDLORD ENTRY. Tenant shall permit Landlord,
Landlord's mortgagees and their agents to enter the Premises at reasonable
times for the purpose of inspecting same, of making repairs, additions or
alterations thereto or to the building in which the same are located and of
showing the Premises to prospective purchasers, lenders and tenants. At any
time less than ninety (90) days from the expiration of Term, Landlord may place
signs upon Premises advertising the availability of same. In the event Landlord
elects to offer Property for sale, Landlord may place reasonable "For Sale"
signs upon Premises. Landlord acknowledges that Tenant's business involves
proprietary information, materials and processes of a highly confidential
nature. Accordingly, any entry into the Premises by Landlord or anyone claiming
by, through, or under Landlord shall require at least twenty four (24) hours
advance notice to Tenant with the names and business affiliations of those
persons who desire to enter the Premises. All persons entering the Premises
shall be required to sign in and provide appropriate identification, and shall
be escorted by a representative of Tenant. Tenant shall have the right to deny
entry to any individual based upon Tenant's reasonable belief that permitting
entry by such individual could compromise Tenant's confidential information.
10.2 REMOVAL OF FIXTURES/REDELIVERY. Tenant shall remove,
at the termination of this Lease, provided Tenant is not in default, such of
Tenant's moveable trade fixtures, laboratory equipment, machinery, and other
personal property, as are not permanently affixed to the Premises. Tenant shall
peaceably yield up the Premises, and all alterations and additions thereto
(except as provided below) and all fixtures, furnishings, floor coverings and
equipment which are permanently affixed to the Premises which, for the purpose
of this Lease, shall be deemed to be permanently affixed to the Premises, which
shall thereupon become the property of the Landlord. The Premises shall be
returned in clean and good order, repair and condition, normal wear and tear
excepted. Any personal property of Tenant not removed within five (5) days
following such termination shall, at Landlord's option, become the property of
Landlord. Notwithstanding the foregoing Landlord and Tenant acknowledge that
Tenant intends to make substantial alterations, additions and improvements to
the Premises which are specific to Tenant's business, as outlined in Tenant's
Conceptual Work Plan attached hereto as Exhibit D, and Tenant shall have the
right (but not the obligation) at its sole expense, to remove any such
alterations, additions, and improvements installed by Tenant, repair any damage
caused by such removal, and restore the Premises to a level of finish and
condition that are substantially equivalent to or superior to that which existed
on the Commencement Date, ordinary wear and tear excepted. Landlord acknowledges
that Tenant will surrender the Premises with an industrial finish.
10.3 SUBORDINATION/ESTOPPEL LETTERS. The rights and
interest of Tenant under this Lease shall be subject and subordinate to any
mortgages or trust deeds now existing or hereafter placed upon the Property and
the Premises, and to any and all extensions, renewals, refinancing and
modifications thereof. Tenant shall execute and deliver whatever instruments
may be required for such purposes or for the purpose of informing potential or
existing lender or purchaser of Property as to status of its tenancy, provided
that the party to whom Tenant subordinates executes a non-disturbance covenant
in favor of Tenant. Any such instruments or estoppel letters shall contain all
information reasonably required by Landlord or other entity in conjunction with
such transaction. In the event Tenant falls to do so within fifteen (15) days
after demand in writing, Tenant does hereby make, constitute and irrevocably
appoint Landlord as its attorney-in-fact and in its name, place and stead to
execute same. Tenant agrees to attorn to a lender or other party coming into
title to Property upon written request of Landlord, provided that the party
coming into title executes a non-disturbance covenant in favor of Tenant and
agrees to be bound by the terms of this Lease as Landlord. Attornment Letter
shall provide that: (a) the Lease is in full force and effect, that there
exists no default (or if same exist, shall detail same);
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(b) that Tenant shall look to lender or other new party as Landlord under this
Lease effective as of the date of attornment; and (c) the new Landlord shall
not be liable for any prior claims, offsets or defenses available against old
Landlord.
10.5 ASSIGNMENT AND SUBLETTING. Tenant shall not sublet
the Premises or any part thereof, nor assign this Lease or any interest
therein, without the prior written consent of Landlord, which shall not be
unreasonably withheld. As a condition of assignment or sublease, Landlord may
require the continued liability of Tenant or a separate personal guaranty by
Tenant or its principal. In the event of any subletting or assignment by
Tenant, Tenant agrees to pay to Landlord as additional rent hereunder one-half
(1/2) of the first three dollars ($3.00) per square foot of space sublet or
assigned which exceeds the Base Rent per square foot due from Tenant to
Landlord hereunder for such space. Any premium rent received by Tenant in
excess of $3.00 per square foot shall be the sole property of Tenant.
10.6 STORAGE. Tenant shall store all personal property
entirely within the Premises. Tenant shall store all trash and refuse in
adequate containers within the Premises which Tenant shall maintain in a neat
and clean condition and so as not to be visible to members of the public in or
about the Property, and so as not to create any health or fire hazard, and to
attend to the periodic disposal thereof in the manner designated by Landlord.
10.7 HAZARDOUS MATERIAL PROHIBITED. Except as provided in
Section 14.25 hereof, Tenant shall not cause or permit any Hazardous Material
to be brought upon, kept or used in or about the Premises by Tenant, its
agents, employees, contractors or invitees. If Tenant breaches the obligations
stated in the preceding sentence, or if the presence of Hazardous Material on
the Premises caused or permitted by Tenant results in contamination of the
Premises, or if contamination of the Premises by Hazardous Material otherwise
occurs for which Tenant is responsible to Landlord for damage resulting
therefrom, then Tenant shall indemnify, defend and hold Landlord harmless from
any and all claims, judgments, damages, penalties, fines, costs, liabilities or
losses.
10.8 HAZARDOUS MATERIAL; DEFINITION. As used herein, the
term "HAZARDOUS MATERIAL" means any hazardous or toxic substance, material or
waste which is or becomes regulated by any local governmental authority, the
State or the United States Government. The term "HAZARDOUS MATERIAL" includes,
without limitation, any material or substance that is defined as a "hazardous
substance" under appropriate state law Provisions; petroleum; asbestos;
designated as a "hazardous substance" pursuant to Section 311 of the Federal
Water Pollution Control Act (33 U.S.C. Section 1321); defined as a "hazardous
waste" pursuant to Section 1004 of the, Federal Resource Conservation and
Recovery Act (42 U.S.C. Section 6903); defined as a "hazardous substance"
pursuant to Section 101 of the Comprehensive Environmental Response,
Compensation and Liability Act (42 U.S.C. Section 9601) or defined as a
"regulated substance" pursuant to Subchapter IX, Solid Waste Disposal Act
(Regulation of Underground Storage Tanks) (42 U.S.C. Section 6991).
10.9 HAZARDOUS CONDITIONS. If Landlord shall become aware
of any hazardous condition or the presence of any Hazardous Materials upon the
Property, other than as provided in Section 14.25 hereof, Landlord may
immediately terminate this Lease, and shall return any portion of unused rent
to Tenant on or before thirty (30) days thereafter. Landlord shall not be
responsible for any claims, damages or costs of Tenant incurred by such
circumstance.
11. ADDITIONAL COVENANTS OF LANDLORD.
11.1 QUIET ENJOYMENT. Landlord agrees that upon Tenant
paying the rent and performing Tenant's obligations under the Lease, Tenant
shall peacefully and quietly have, hold and enjoy the Premises throughout the
Term or until it is terminated pursuant to the terms contained herein.
12. DEFAULT.
12.1 EVENT OF DEFAULT. Any of the following occurrences or
acts shall constitute an "EVENT OF DEFAULT" under this Lease:
(1) If Tenant shall:
(a) Default in making payment when due of any
Basic Rent or any other amount payable by Tenant hereunder, if such default
continues more than ten (10) days after written notice thereof is given to
Tenant by Landlord; or
(b) Default in the observance or performance of
any other covenant, condition, rules, regulations or provision of this Lease to
be observed or performed by Tenant hereunder; and if such default shall
continue for thirty (30) days, after Landlord shall have given to Tenant notice
specifying such default and demanding that same be cured; or
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(2) If an unconsented-to Assignment or Sublease
occurs or is attempted; or
(3) If Tenant shall institute bankruptcy
proceedings or be declared bankrupt or insolvent pursuant to federal or state
law; or
(4) If any receiver be appointed for Tenant,
Tenant's business or property, or if any assignment shall be made of the
Tenant's property for the benefit of creditors.
13. REMEDIES UPON DEFAULT.
13.1 REMEDIES. This Lease and the Term hereby granted are
subject to limitation that whenever an Event of Default shall have occurred,
Landlord may, at its election:
(1) Proceed by appropriate judicial proceedings,
either at law or in equity, to enforce performance or observance by Tenant of
the applicable provisions of this Lease and/or to recover actual and
consequential damages for the breach thereof, plus all reasonable costs and
attorneys' fees; or
(2) Give Tenant ten (10) days written notice
requiring payment of the rent or thirty (30) days written notice requiring
compliance with other terms or provisions of this Lease or delivery of
possession of the Premises. In the event said default remains uncorrected after
ten (10) days or thirty (30) days written notice, as the case may be, Landlord
at its option may terminate this Lease whereupon Tenant's estate and all
rights of Tenant to the use of the Premises shall forthwith terminate but Tenant
shall remain liable as hereinafter provided; and thereupon Landlord shall have
the immediate right of re-entry and possession of the Premises and the right to
remove all persons and property therefrom, either with or without the assistance
of legal process and instituting of a forcible entry and detainer action, and
Landlord may thenceforth hold, possess and enjoy the Premises (including the
right to lease or sell the Premises or any portion thereof upon any terms
reasonably satisfactory to Landlord) free from any rights of Tenant and any
person claiming through Tenant and in addition shall have the right to recover
from Tenant:
(a) Any and all Basic Rent and all other
amounts payable by Tenant hereunder, which may then be due and unpaid, and
Basic Rent for the remainder of the Term, subject to Landlord's duty to
undertake reasonable measures to mitigate such damage; and
(b) Any and all other costs, fees and
expenses incurred or due under the provisions of this Lease (including, without
limitation, reasonable attorneys' fees and expenses), together with any
mortgage prepayment or late payment premium or penalty which Landlord shall
have sustained by reason of the breach of any provision of this Lease.
(3) Exercise any and all rights provided under
applicable law to enforce "LANDLORD'S LIEN" upon Tenant's property; provided,
however, that Landlord shall not have any lien against furniture, fixtures,
equipment or other personal property of Tenant which Tenant leases or any
property of Tenant the granting of a lien against which would cause Tenant to
be in default under any contract or agreement entered into by Tenant; or
(4) Any and all other remedies afforded by law.
13.2 CUMULATIVE REMEDIES. No right or remedy herein
conferred upon or reserved to Landlord is intended to be exclusive of any other
right or remedy, and every right and remedy shall be cumulative and in addition
to any other legal or equitable right or remedy given hereunder.
13.3 INDUCEMENT RECAPTURE. Any agreement by Landlord for
free or abated rent, Tenant improvements or other charges applicable to the
Premises, or for the giving or paying by Landlord to Tenant of any cash or
other bonus, inducement or consideration for Tenant's entering into this Lease,
all of which concessions are hereinafter referred to as "INDUCEMENT PROVISIONS"
shall be deemed conditioned upon Tenant's full and faithful performance of all
of the terms, covenants and conditions of this Lease. Upon the occurrence of a
Default of this Lease by Tenant, any such Inducement Provision shall
automatically be deemed deleted from this Lease and of no further force or
effect, and any rent, other charge, bonus, inducement or consideration
theretofore abated, given or paid by Landlord under an Inducement Provision
shall be immediately due and payable by Tenant to Landlord, and recoverable by
Landlord as additional rent due under this Lease.
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14. ADDITIONAL PROVISIONS.
14.1 COSTS OF NEGOTIATION. Except as otherwise expressly
provided herein, each party will pay all of its expenses, including attorneys
and accountants' fees, in connection with the negotiation of this Lease, the
performance of its obligations hereunder, and the consummation of the
transactions contemplated by this Lease.
14.2 CONFIDENTIALITY. The parties agree that they each
shall keep confidential any and all information furnished by the other party
in connection with the transactions contemplated hereby, except to the extent
any such information may be generally available to the public, obtained from
independent sources or as required by law or judicial order or decree or by any
governmental agency or authority. The parties acknowledge that Tenant is
required to file this Lease with the U.S. Securities Exchange Commission.
14.3 CONTINUING ASSISTANCE. Subsequent to the execution of
this Lease, Tenant will provide to Landlord whatever assistance the Landlord
reasonably requests including execution of additional documents contemplated by
this Lease. Landlord will pay Tenant the reasonable out-of-pocket expenses
incurred in providing such assistance.
14.4 NOTICES. Any notice required or permitted to be given
under this Lease shall be in writing and shall be deemed to have been given or
delivered when delivered by hand or 3 days after being deposited in a United
States Post Office, registered or certified mail, postage prepaid, return
receipt required, and addressed as follows:
If to Tenant:
-------------
NeXstar Pharmaceuticals, Inc.
Attn: President
0000 Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
WITH A COPY TO:
Xxxxxxxxxx Black and Xxxx, LLC
Attn: Xxxxx X. Xxxxxxxxx, Xx.
0000 Xxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
If to Landlord:
AVALON INVESTMENT COMPANY
X.X. Xxx 000
Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
WITH A COPY TO:
Avalon Investment Company
Attn: Xxx Xxxxxxx
0000 Xxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
or to such other address as either party may from time to time specify in
writing to the other. All rental payments shall be directed to Landlord's
address as shown above.
14.6 HOLDOVER. In the event Tenant remains in possession
of the Premises after the expiration of the tenancy created hereunder, and
without the execution of a new lease, Tenant, at the option of Landlord, shall
be deemed to be occupying the Premises as a tenant from month-to-month, at one
and one-half (1 1/2) times the Basic Rent, subject to all the other conditions,
provisions and obligations of this Lease insofar as the same are applicable to a
month-to-month tenancy, unless good
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faith negotiations are proceeding between Landlord and Tenant, in which case
the Basic Rent shall remain the same as at the end of the Term.
14.7 CURE BY LANDLORD. Landlord may, but shall not be
obligated to, cure, at any time, without notice, any default by Tenant under
this Lease; and whenever Landlord so elects, all costs and expenses incurred by
Landlord including, without limitation, reasonable attorneys' fees together
with interest on the amount of costs and expenses so incurred at the maximum
legal rate then in effect in the State shall be paid by Tenant to Landlord on
demand.
14.8 HEIRS AND ASSIGNS. This Lease shall be binding upon,
and inure to the benefit of, the parties hereto and their respective
successors, heirs, administrators and assigns. However, notwithstanding the
foregoing, Tenant may not assign this Lease except as specifically provided
herein.
14.9 AMENDMENT. Unless otherwise provided in this Lease,
this Lease may be amended, modified or terminated only by a written instrument
executed by Landlord and Tenant.
14.10 GOVERNING LAW. This Lease shall be governed by and
construed in accordance with the laws of the State in which the Property is
located. The parties stipulate that proper forum and venue for the adjudication
of any issues relative to this Lease is State Court in the County in which the
Property is located.
14.11 SOLE AGREEMENT. This Lease and attached Exhibits
supersedes all prior agreements and understandings between the parties hereto
relating to the subject matter hereof. The parties do not intend to confer any
benefit on any person, firm, or corporation other than the parties to this
Lease, except as and to the extent otherwise expressly provided herein.
14.12 ATTORNEYS' FEES. In the event either party hereto
fails to perform any of its obligations under this Lease or in the event a
dispute arises concerning the meaning or interpretation of any provision of
this Lease, the defaulting party or the party not prevailing in such dispute,
as the case may be, shall pay any and all costs and expenses incurred by the
other party in enforcing or establishing its rights hereunder, including,
without limitation, court costs and reasonable attorneys' fees.
14.13 CAPTIONS. The section titles or captions in this Lease
are for convenience only and shall not be deemed to be part of this Lease.
14.14 INTERPRETATION. All pronouns and any variations of
pronouns shall be deemed to refer to the masculine, feminine, or neuter,
singular or plural, as the identity of the parties may require. Whenever the
terms referred to herein are singular, the same shall be deemed to mean the
plural, as the context indicates, and vice versa.
14.15 NO WAIVER. No right under this Lease may be waived
except by written instrument executed by the party who is waiving such right.
No waiver of any breach of any provision contained in this Lease shall be
deemed a waiver of any preceding or succeeding breach of that provision or of
any other provision contained in this Lease. No extension of time for
performance of any obligations or acts shall be deemed an extension of the time
for performance of any other obligations or acts.
14.16 SEVERABILITY. If any term, covenant, condition, or
provision of this Lease or the application thereof to any person or
circumstance shall, at any time or to any extent, be invalid or unenforceable,
the remainder of this Lease, or the application of such term or provision to
persons or circumstances other than those to which it is held invalid or
unenforceable, shall not be affected thereby, and each provision of this Lease
shall be valid and shall be enforced to the fullest extent permitted by law.
14.17 NO RECORDATION. Neither this Lease nor a Memorandum
thereof shall be recorded with the Clerk and Recorder of the County in which
the Property is situated. However, notwithstanding the foregoing, nothing
contained herein shall prohibit Landlord from recording a Memorandum of Lease
with the State Department of Revenue or UCC-1 Financing Statement with the
State Secretary of State.
14.18 AUTHORITY. In the event the Tenant is not a natural
person, Tenant shall represent and warrant that: (a) Tenant is an entity in
good standing or licensed to do business in the State which the Property is
located, (b) parties executing this Lease on behalf of Tenant are duly
authorized to execute same.
14.19 EXHIBITS. This Lease shall consist of this writing and
the following exhibits:
Exhibit A: Description of Property
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Exhibit B: Description of Premises
Exhibit C. Escalation Rider Nos. 1, 2 or 3
Exhibit D: Tenant Conceptual Work Plan
Exhibit E: List of Hazardous Materials
All of the foregoing exhibits and this Lease shall be deemed to comprise one
document. In the event of any conflict between the Lease and any exhibits, the
language in the exhibits shall control.
14.20 COUNTERPARTS. This Lease may be executed in
counterparts.
14.21 RIGHT OF OFFER. Landlord hereby grants Tenant Right
of Offer on remaining space in the 2830 Wilderness building. The rental rate
and expiration date to be the same as the then existing lease rate for units A,
B, C, D, and E.
14.22 RENEWAL OPTION. Landlord hereby grants Tenant one (1)
three (3) year option to renew at a rate not in excess of the then fair market
rates prevailing for comparable space, with a minimum of six (6) months and a
maximum of nine (9) months written notice.
14.23 SIGNAGE. Landlord hereby grants Tenant the right to
display its corporate name on the monument directory sign and building
according to local code and Landlord approval.
14.24 CONTINGENCY. The direct lease between Landlord and
Tenant will be contingent upon the full release of DDx and Eltron Research.
14.25 HAZARDOUS MATERIALS. Tenant and Landlord recognize
that limited quantities of classified "Hazardous Materials" including, but not
limited to those set forth in Exhibit E, will be required in order to conduct
research and to manufacture certain products by the company. Tenant represents
that all such material will be properly handled, stored, and disposed of
according to all Federal, State, and Local Laws and guidelines. Tenant further
represents that such "Hazardous Materials" will not affect operations in
adjacent tenant space. Tenant shall indemnify, defend and hold Landlord
harmless from any and all claims, judgments, damages, penalties, fines, costs,
liabilities, or losses arising from such uses or actions.
AGREED TO BY AND BETWEEN THE PARTIES as of the day and date first
written above.
LANDLORD: TENANT:
AVALON INVESTMENT COMPANY, NEXSTAR PHARMACEUTICALS, INC.
a California General Partnership a Delaware corporation
By: /s/ [ILLEGIBLE] By: /s/ XXXXXXX X. XXXX
----------------------------- -----------------------------
Its: General Partner Its: VP CFO
----------------------------
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EXHIBIT A
LEGAL DESCRIPTION OF REAL ESTATE
PARCEL A:
Xxxx 00 xxx 00, XXXXXXXX XXX XXXXXXXX XXXXXXXXXX XXXX, Xxxxxx of Boulder, State
of Colorado
PARCEL B:
Xxx 0, Xxxxx 0, XXXXXXXX XXX XXXXXXXX XXXXXXXXXX XXXX FILING XX. 0, Xxxxxx xx
Xxxxxxx, Xxxxx of Colorado
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EXHIBIT B
DESCRIPTION OF PREMISES
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EXHIBIT C
ESCALATION RIDER NO. 3
The Basic Rent shall be adjusted as follows on the dates specified below:
On and After: Basic Rent
------------ ----------
December 1, 1997 $115,129.95 annually
($9,594.16 per month)
December 1, 1998 $120,822.65 annually
($10,068.55 per mouth)
December 1, 1999 $126,907.95 annually
($10,575.66 per month)
December 1, 2000 $133,287.70 annually
($11,107.31 per month)
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EXHIBIT D
TENANT'S CONCEPTUAL WORK PLAN
16
[NEXSTAR LETTERHEAD]
CONCEPTUAL WORK PLAN
This is a Conceptual Work Plan for the construction of the 0000
Xxxxxxxxxx Xxxxx Xxxxx X, X, X, X and E, indicating additions,
modifications and improvements which Nexstar may make to the building.
This Work Plan is tentative and subject to change. Nexstar will submit
specific plans and specifications to Landlord prior to commencing work,
in accordance with Section 6-3 of the Lease.
Nexstar Pharmaceuticals Inc. will consult with an Architect, Civil,
Electrical, Mechanical and Structural Engineers to ensure we construct
a safe and efficient facility.
DEMOLITION
May perform interior demolition on approximately all 9,815 square feet
of the 0000 Xxxxxxxxxx Xxxxx facility units A, B, C, D and E. This
process of demolition may involve, removing some if not all interior
ceiling, walls, electrical outlets, lighting fixtures HVAC and plumbing
fixtures.
Along with the interior demolition, we may remove some if not all
mechanical roof top equipment to accommodate space for HVAC equipment
compatible to serve the interior demand of the new laboratory design.
(i.e., exhaust systems and heating and air conditioning ventilation
equipment.)
In the occurrence of utility supply shortage (i.e. waste line, water
supply line, gas and electric,) to the facility. Nexstar, along with
Architects, Engineers and Public Utilities may make the changes
necessary to accommodate all Nexstar's laboratory needs.
CONSTRUCTION
Will construct all necessary walls and partitions to fit the needs of
Nexstar's architectural laboratory design. This will include walls for
rest rooms, offices, conferences rooms, laboratories shipping/receiving
and a mechanical room.
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Will revise the lighting and electrical outlet plan in areas
acceptable to Nexstar and Electrical Engineers standards.
MECHANICAL
Will revise the interior domestic hot and cold supply water
distribution loop which will accommodate all sinks and faucets.
Will install HVAC equipment on roof as suggested by Nexstar's
Mechanical Engineers.
Will install mechanical equipment in mechanical room as suggested by
engineers.
Will modify gas supply lines to accommodate Mechanical equipment.
Will install a Fire sprinkler system in the facility according to the
Mechanical Engineers specifications.
LABORATORIES
Each laboratory unit will consist of fume hoods and plenty of
scientific bench top equipment.
SAFETY STORAGE
Will install a Factory Mutual/Underwriter Laboratories approved
walk-in storage rooms, located in the facility close to a dock door.
This storage area will be used to store flammable liquids and other
chemical products.
Nexstar
Pharmaceuticals Inc.
/s/ XXXXXX XXXXXX
--------------------
Xxxxxx Xxxxxx
Facility Manager
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FLOOR PLAN
Example of Facility remodel, which will take place at the 0000
Xxxxxxxxxx Xxxxx Units A, B, C, D, and E.
**THIS FLOOR PLAN WILL CHANGE AS WE CONSULT WITH ARCHITECTS AND
ENGINEERS
1. West portion of the facility will contain mostly shipping and
receiving, large general duty laboratory, glassware kitchen/ buffer
preparation area and a fire rated safety storage area.
2. East area of the facility will contain mostly administrative along
with scientific offices and conference space.
3. The outer north portion of the facility will contain the common area,
men's and women's rest rooms and the mechanical equipment room.
4. Center and extreme south area will contain 4 large general duty
laboratory units.
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EXHIBIT E
HAZARDOUS MATERIALS LIST
