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Exhibit 10(u)
LEASE AGREEMENT
THIS LEASE AGREEMENT, made this 1st day of August, 1997, by and between
Xxxxx Xxxxxxxx, Xxxx Xxxxxxxx and Xxxxx X. Xxxx, as Landlord, and SweetWater,
Inc., as Tenant.
WITNESSETH, THAT, in consideration of the covenants herein, it is
agreed:
1. LEASE OF PREMISES.
The Landlord hereby leases to the Tenant, and the Tenant hereby leases
from the Landlord, the land and building located at 0000 Xxxxxx Xxxxxx, Xxxx X
(Exhibit A -- attached square foot diagram) Xxxxxxxx, XX 00000, together with
all appurtenances thereto, and all fixtures attached thereto, in present
condition.
2. CONDITION OF PROPERTY.
Tenant has examined, and accepts the building, improvements, and any
fixtures, in present condition. No representation, statement or warranty,
expressed or implied, has been made by or on behalf of Landlord as to such
condition, or as to the use that may be made of such property. In no event shall
the Landlord be liable for any defect in such property or for any limitation on
its use. Except as otherwise provided in this Lease, Tenant shall return the
property to Landlord upon expiration or termination of this Lease, in present
condition, ordinary wear and tear excepted.
3. TERM.
The term of this Lease shall be 36 months, commencing at noon on October
1, 1997, (See Paragraph 26(C) and ending at noon on September 30, 2000, unless
sooner terminated in accordance of the provisions hereof.
A. HOLDOVER. Should the Tenant hold over and remain in possession of the
leased property after the expiration of this lease without the Landlord's
consent, it shall not be deemed or construed to be a renewal or an extension of
this lease but shall only operate to create a month to month tenancy which may
be terminated by the Landlord or Tenant at the end of any month upon thirty days
prior written notice to the other party.
B. OPTION TO EXTEND. Tenant shall have the right to extend the term of
this Lease for an additional 3 years. This option shall be valid only if all of
Tenant's obligations in this Lease have been fully performed and all defaults,
if any, have been cured. The option may be exercised only if Tenant gives
Landlord written notice of their intent to extend at least 60
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days prior to the expiration of the initial term. Rental rate shall be current
market rate at time of notification of intent to extend.
4. DELIVERY OF POSSESSION.
The Tenant shall be entitled to possession of the leased premises at
noon on the date of commencement of the lease term.
5. RENTAL.
Tenant shall pay to the Landlord, at such place as the Landlord may
designate in writing the following rent:
A. Base Rental. Base rental of $216,412.50 for the first initial term of
this lease, payable in installments of $6,011.46 per month commencing October 1,
1997, and continuing until September 30, 2000, due in advance on the first day
of each month. If the lease term includes only a part of any month, rental for
such part of a month shall be prorated accordingly and added to the next monthly
rent and paid in advance.
B. Late Charge. Tenant will pay a late charge equal to five percent of
any rental payment not paid within 10 days of when due.
C. Monthly rent shall be increased by $512.00 for estimated property tax
expense.
6. USE.
The Tenant may use and occupy the leased property for purposes of
manufacture/distribution of water treatment devices or related products, and
Tenant shall not use or occupy nor permit the leased property or any part
thereof to be used or occupied for any unlawful business, use or purpose, nor
for any business, use, or purpose deemed extrahazardous, nor for any purpose or
in any manner which is in violation of any present or future governmental laws
or regulations. It shall be Tenant's sole and exclusive responsibility to meet
all fire and safety regulations of any governmental entity having jurisdiction
over the leased premises, at Tenant's sole expense. Tenant shall not allow any
odors, fumes, or vibrations on the leased premises, or any noise thereon which
would cause disruption of normal activities on adjacent premises. The Tenant
shall indemnify the Landlord against all costs, expenses, liabilities, losses,
damages, injunctions, suits, fines, penalties, claims, and demands, including
reasonable attorney's fees, arising out of any violation of or default in this
covenant by Tenant.
7. POSSESSION AND QUIET ENJOYMENT.
The Tenant, upon the payment of the rent herein reserved and upon the
performance of all the terms of this lease, shall at all times during the lease
term and during any extension
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or renewal term, peaceably and quietly possess and enjoy the leased property
without any disturbance from the Landlord or from any other person claiming
through the Landlord.
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8. MAINTENANCE AND REPAIRS.
The Landlord shall be responsible for maintenance and repairs required
to maintain the structural portions and the roof of the building on the leased
property, the exterior finish of such building, and the parking lot on the
subject property; all to be maintained in present condition at the sole cost and
expense of the Landlord. All other maintenance and repairs shall be performed by
Tenant, at its own expense, including all necessary repairs and replacements to
pipes, heating/air-conditioning systems, plumbing systems, electrical systems,
window glass, doors, fixtures, interior decorations, and all other appliances
and appurtenances belonging thereto, however that all replacement or major
repairs to the plumbing, heating, or electrical systems on the leased property,
which occur the first year and are not necessitated by the negligence of the
Tenant, shall be paid by Landlord. Such repairs and replacements, interior and
exterior, ordinary as well as extraordinary, shall be made promptly, as and when
necessary. All such repairs and replacements shall be in quality and class at
least equal to the original work. On default of the Tenant in making such
repairs or replacements, the Landlord may, but shall not be required to, make
such repairs and replacements for the Tenant's account, and the expense thereof
shall constitute and be collectable as additional rent, together with interest
thereon at the rate of eighteen percent per annum until paid. Tenant shall not
allow or permit any waste of the leased premises, and shall keep the leased
grounds free from accumulations of trash or debris.
9. CONDITION UPON SURRENDER.
The Tenant shall vacate the leased property in the same condition and
repair in which the property now is, ordinary wear and tear excepted and shall
remove all of the Tenant's property therefrom so that the Landlord can repossess
the leased property not later than noon on the day upon which this lease or any
extension thereof ends, whether upon notice or by holdover or otherwise. The
Landlord shall have the same rights to enforce this covenant by ejectment and
for damages or otherwise as for the breach of any other condition or covenant of
this lease. Except as otherwise provided herein, the Tenant may at any time
prior to or upon the termination of this lease or any renewal or extension
thereof, remove from the leased property all materials, equipment, and property
of every other sort of nature, installed by the Tenant thereon, provided that
such property is removed without substantial injury to the leased property. No
injury shall be considered substantial if it is promptly corrected by
restoration to the condition prior to the installation of such property. Any
such property not removed shall become the property of the Landlord.
10. ALTERATIONS.
The Tenant shall have the right, from time to time, to make all such
nonstructural alterations and improvements to the leased property as may be
reasonably necessary or appropriate, for the conduct of the Tenant's business,
provided that prior to commencement of any such work, the Landlord shall in each
case have approved in writing the plans and specifications for such work. If
within fourteen days after such plans and specifications are
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submitted by the Tenant to the Landlord for such approval, the Landlord shall
have not given the Tenant notice of disapproval, such plans and specifications
shall be considered approved by the Landlord. All work done by Tenant shall
confirm to all applicable governmental regulations and requirements with all
required permits to be paid for by Tenant. If any such work done by Tenant
causes damage to the structural portions or roof of any building on the leased
premises, then the costs of all maintenance and repairs to such damaged parts or
roof of any such building shall thereafter be the responsibility of Tenant.
Notwithstanding the fact that alterations may be made by the Tenant, during the
lease term or any renewal or extension of such term, the Tenant shall have the
duty to return the leased premises, upon termination or expiration of the lease,
to the Landlord in the same condition as when received by the Tenant, ordinary
wear and tear excepted; provided, however, that Landlord shall have the option
to require Tenant to leave all such alterations, improvements and fixtures in
place, in which the same shall be and remain the property of Landlord. Further,
in connection with any improvements and alterations to the leased premises,
Tenant shall indemnify the Landlord from any lien arising out of any such work
performed or materials furnished, and shall indemnify and hold harmless the
Landlord from any liability or loss, of any type or nature, including reasonable
attorney's fees, arising out of any lien or claim based on work performed or
materials furnished. Landlord shall have the right to require Tenant to furnish
adequate bond or other security acceptable to Landlord for payment of any such
work performed by Tenant, and shall have the right to require adequate lien
waivers on any such work performed by Tenant. Landlord shall also have the right
to post notice of nonliability for any such work, or appropriate places in the
leased premises. Any checks written by Tenant for said work shall include a
restrictive endorsement waiving all rights to mechanic's liens.
11. TAXES AND ASSESSMENTS.
A. Tenant shall be liable for and agrees to pay all of the real property
taxes and assessments levied or assessed against the leased premises and
improvements thereon during the term of this Lease or any extension thereof. Any
partial years will be prorated accordingly. This paragraph is intended to
include all real estate taxes and assessments of every kind and nature
whatsoever, which may be levied, imposed or assessed by any level of government
including municipal and county government, or by any special district. If
applicable, Tenant shall pay to Landlord within 10 days from receipt of xxxx for
said taxes & assessments.
B. The Tenant shall be liable for and agrees to pay all of the personal
property taxes and assessments levied or assessed against personal property and
fixtures placed in or upon the leased premises by the Tenant. This paragraph is
intended to include all the personal property taxes and assessments of every
kind and nature whatsoever, which may be levied, imposed or assessed by any
level of government including municipal and county government, or by any special
district.
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12. UTILITIES.
The Tenant shall pay all charges prior to delinquency, for gas, water,
sewer, electricity, trash and telephone or other communication services or other
utilities used, rendered, or supplied, upon or in connection with the liability
or damages on any such account.
13. INSURANCE
Landlord shall maintain property insurance on the building improvements
of which cost shall be billed to the Tenant as additional rent.
The Tenant shall keep the leased property fully insured throughout the
term of this lease against the following:
A. Liability. Claims for personal injury or property damage under a
policy of general public liability insurance, with such limits as may be
reasonably requested by the Landlord from time to time, but not less than
$500,000.00/$1,000,000.00 in respect of bodily injury, and $50,000.00 for
property damage.
B. Other. Against such other hazards and in such amounts as the holder
of any mortgage or deed of trust to which this lease is subordinate may require
from time to time.
C. Waiver of Subordination. Landlord hereby releases Tenant, and Tenant
hereby releases Landlord, and their respective officers, agents, employees and
servants, from any and all claims or demands for damages, loss, expense or
injury to the demised premises, or to the furnishings and fixtures and
equipment, or inventory or other property of either Landlord or Tenant in, about
or upon the demised premises, as the case may be, which be caused by or result
from perils, events or happenings which are the subject of insurance carried by
the respective parties and in force at the time of any such loss; provided,
however, that such waiver shall be effective only to the extent permitted by the
insurance covering such loss and to the extent such insurance is not prejudiced
thereby or the expense of such insurance is not thereby increased.
14. RIGHT OF ENTRY.
The Landlord and its representative may enter the leased property at any
reasonable time for the purpose of inspecting the leased property, performing
any work which the Landlord elects to undertake made necessary by reason of
Tenant's default under the terms of this lease, exhibiting the leased property
for sale, lease, or mortgage financing, or posting notices of nonresponsibility
under any mechanic's lien law.
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15. CASUALTY DAMAGE.
a. If the premises or the building are damaged by fire or other insured
casualty, Landlord will give Tenant written notice of the time that Landlord has
determined in its reasonable discretion will be needed to repair the damage, and
the election (if any) that Landlord has made according to this section. The
notice will be given before the tenth day (the "notice day") after the fire or
other insured casualty.
b. If the premises or the building are damaged by fire or other insured casualty
to the extent that it can be repaired within sixty (60) days after the notice
date, Landlord will promptly begin to repair the damage after the notice date
and will diligently pursue the completion of such repair. In that event, this
lease will continue in full force and effect except that monthly rent will be
abated on a pro rata basis from the date of the damage until the date of the
completion of such repairs (the "repair period") based on the proportion of the
rentable area of the premises that Tenant is unable to use during the repair
period.
c. If the premises or the building are damaged by fire or other insured casualty
to an extent Landlord has determined in its sole discretion can not be repaired
within one hundred twenty (120) days after the notice date, the (1.) Landlord
may cancel this lease as of the date of the damage by written notice given to
Tenant on or before the notice date or (2.) Tenant may cancel this least as of
the date of the damage by written notice given to Landlord if repairs cannot be
completed within sixty (60) days as set forth in (b) above. If neither Landlord
nor Tenant so elects to cancel this lease, Landlord will diligently proceed to
repair the building and premises and monthly rent will be abated on a pro rata
basis during the repair period based on the proportion of rentable area of the
premises that Tenant is unable to use during the repair period.
d. If the premises or the building are damaged by uninsured casualty, or if the
proceeds of insurance are insufficient to pay for the repair of any damage to
the premises or the building, Landlord will have the option either to elect to
repair the damage or to cancel this lease as of the date of the casualty by
written notice to Tenant on or before the notice date.
e. If any damage by fire or other casualty is the result of the willful conduct
or negligence or failure to act of Tenant, its agents, contractors, employees or
invitees, monthly rent will not be abated. Tenant will have no right to
terminate this lease on account of any damage to the premises, the building, or
the project, except as set forth in this lease.
16. CONDEMNATION.
If the whole of the leased property or such portion thereof which will
make the leased property unsuitable for the purposes herein leased, is condemned
for any public use or purpose by any legally constituted authority, then in
either of such events this lease shall cease from the time when possession is
taken by such public authority, and rental shall be accounted for between the
Landlord and the Tenant as of the date of the surrender of possession. Such
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termination shall be without prejudice to the rights of either the Landlord or
the Tenant to recover compensation from the condemning authority for any loss or
damage caused by such condemnation. Neither the Landlord nor the Tenant shall
have any rights in or to any award made to the other by the condemning
authority.
17. ASSIGNMENT AND SUBLETTING.
The Tenant shall not assign, mortgage, or encumber this lease, nor
sublet or permit the leased property or any part thereof to be used by others,
without the prior written consent of the Landlord in each instance. Such consent
will not be unreasonably withheld. If this lease is assigned, or if the leased
property or any part thereof is sublet, or occupied by anyone other than the
Tenant, the Landlord may, after default by the Tenant, collect rent from the
assignee, sub-tenant, or occupant and apply the net amount collected against all
rent herein reserved. No such assignment, subletting, occupancy, or collection
shall be deemed a waiver of this covenant, or the acceptance of the assignee,
sub-tenant, or occupant as tenant, or a release of Tenant from further
performance by the Tenant of the covenants in this lease. The consent by the
Landlord to an assignment or subletting shall not be construed to relieve the
Tenant from obtaining the consent in writing of the Landlord to any further
assignment or subletting.
18. SUBORDINATION TO MORTGAGE.
This lease shall be subject and subordinate at all times to the lien of
any existing mortgages and trust deeds and mortgages and trust deeds which
hereafter may be made a lien on the leased property. Although no instrument or
act on the part of the Tenant shall be necessary to effectuate such
subordination the Tenant will, nevertheless, execute and deliver such further
instruments subordinating this lease to the lien of any such mortgages or trust
deeds as may be desired by the mortgagee or holder of such trust deeds. The
Tenant hereby appoints the Landlord as his attorney in fact, irrevocably, to
execute and deliver any such instrument for the Tenant. Tenant further agrees at
any time and from time to time upon not less than ten days prior written request
by Landlord, to execute, acknowledge, and deliver to Landlord a statement in
writing certifying that this lease agreement is unmodified and a statement in
writing certifying that this lease agreement is unmodified and is in full force
and effect (or if there have been modifications, that the lease is in force and
effect as modified, and stating the modifications); that there have been no
defaults thereunder by Landlord of Tenant (or if there have been defaults,
setting forth the nature thereof), and the date to which the rent and other
charges have been paid in advance, if any, it being intended that any such
statement delivered pursuant to this requirement may be relied upon by any
prospective lender or by any prospective purchaser of all or any portion of
Landlord's interest therein, or by the holder of any existing mortgage or deed
of trust encumbering the leased premises. Tenant's failure to deliver such
statement within such time shall be conclusive upon Tenant (1) that this lease
is in full force and effect, without modification except as may be represented
by Landlord; (2) that there are no uncured defaults in Landlord's performance;
and (3) that not more than one month's rent has been paid in advance. Further,
upon request, Tenant shall supply to Landlord a corporate resolution
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certifying that the party signing this statement on behalf of Tenant is properly
authorized to do so, if Tenant is a corporation.
19. INDEMNITY.
The Tenant shall indemnify and hold harmless the Landlord from and
against all liabilities, penalties, damages, judgments, and expenses, including
reasonable attorney's fees incurred by Landlord in defending or satisfying any
claim of any type or nature, including personal injury claims or property damage
claims, arising out of the use, occupancy, or control of the leased property or
any of its appurtenances by Tenant.
20. SECURITY.
The Tenant has deposited with the Landlord the sum of $6,011.46 as
security for the full and faithful performance by the Tenant of all the terms of
this lease required to be performed by the Tenant. Such sum shall be returned to
the Tenant within 30 days after the expiration of this lease, provided the
Tenant has fully and faithfully carried out all of its terms. Otherwise, the
Landlord may use, apply, or retain the whole or any part of such amount to the
extent required for the payment of any rent or other obligation as to which the
Tenant is in default under the terms of this lease. In such event Tenant shall
upon written demand from Landlord, forthwith remit to Landlord a sufficient
amount in cash to restore such deposit to its original amount. Landlord shall
have the right to transfer such security to the purchaser to be held under the
terms of this lease, and the Landlord shall thereupon be released from all
liability for the return of such security to the Tenant, and the Tenant shall
look solely to the new Landlord for the return of such security. The Tenant
shall not assign nor encumber the money deposited as security, and neither the
Landlord nor its successors or assigns shall be bound by any such assignment or
encumbrance.
21. DEFAULT.
The occurrence of any of the following shall constitute an event of
default: (1) Delinquency in the due and punctual payment of any rent or
additional rent payable under this lease when such rent shall become payable.
(2) Delinquency by the Tenant in the performance of or compliance with any of
the conditions contained in this lease other than those referred to in the
foregoing subparagraph (1), for a period of thirty days after written notice
thereof from the Landlord to the Tenant, except for any default not susceptible
of being cured within such thirty day period, in which event the time permitted
to the Tenant to cure such default shall be extended for as long as shall be
necessary to cure such default, and provided further that such period of time
shall not be so extended as to jeopardize the interest of the Landlord in this
lease or so as to subject the Landlord or the Tenant to any civil or criminal
liabilities. (3) Filing by the Tenant in any court pursuant to any statute,
either of the United States or any state, of a petition in bankruptcy or
insolvency, or for reorganization, or for the appointment of a receiver or
trustee of all or a portion of the Tenant's property, or an assignment by the
Tenant for the benefit of creditors. (4) Filing against the Tenant in any court
pursuant to any statute, either
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of the United State or of any state, of a petition in bankruptcy or insolvency,
or for reorganization, or for appointment of a receiver of trustee of all or a
portion of the Tenant's property, if within ninety days after the commencement
of any such proceeding against the Tenant such petition shall not have been
dismissed.
A. Upon the occurrence of an event of default, the Landlord at any time
thereafter may give written notice to the Tenant specifying such event of
default and stating that this lease shall expire on the date specified in such
notice, which shall be at least three days after the giving of such notice, and
upon the date specified in such notice this lease and all rights of the Tenant
shall terminate. Upon the expiration of this lease pursuant to this article, the
Tenant shall peacefully surrender the leased property to the Landlord, and the
Landlord, upon or at any time after any such expiration, may without further
notice re-enter the leased property and repossess it by force, and remove the
Tenant and all other persons and property from the leased property and may have,
hold, and enjoy the leased property and the right to receive all rental income
therefrom. If statutory notice, in accordance with the laws of the State of
Colorado, of such default is given to Tenant by Landlord, demanding payment of
rent or possession, such demand shall not constitute an election of remedies by
Landlord and Landlord reserves the right to seek damages and future rents due
under the lease for the balance of the term, notwithstanding Tenant's election
to surrender possession pursuant to any such demand made by Landlord.
B. At any time after any such expiration, the Landlord may relet the
leased property or any part thereof, in the name of the Landlord or otherwise,
for such term (which may be greater or less than the period which would
otherwise have constituted the balance of the term of this lease) and on such
conditions (which may include concessions or free rent) as the Landlord, in its
uncontrolled discretion, may determine, and may collect and receive the rent
therefor. The Landlord shall in no way be responsible or liable for any failure
to relet the leased property or any part thereof, or for any failure to collect
any rent due upon any such reletting.
C. No such expiration of this lease shall relieve the Tenant of its
liability and obligations under this lease, and such liability and obligations
shall survive any such expiration. In the event of any such expiration, whether
or not the leased property or any part thereof shall have been relet, the Tenant
shall pay to the Landlord the rent and additional rent required to be paid by
the Tenant up to the time of such expiration, and thereafter the Tenant, until
the end of which would have been the term of this lease in the absence of such
expiration, shall be liable to the Landlord for, and shall pay to the Landlord,
as and for liquidated and agreed current damages for the Tenant's default: (1)
The equivalent of the amount of the rent and additional rent which would be
payable under this lease by the Tenant if this lease were still in effect, less
(2) The net proceeds of any reletting effected pursuant to the provisions of
paragraph B of this article, after deducting all the Landlord's expenses in
connection with such reletting, including, without limitation, all repossession
costs, brokerage commissions, legal expenses, reasonable attorney's fees,
alteration costs, and expenses of preparation of such reletting.
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D. The Tenant shall pay such current damages, herein called deficiency,
to the Landlord monthly on the days on which the rent and additional rent would
have been payable under this lease if this lease were still in effect, and the
Landlord shall be entitled to recover from the Tenant, and the Tenant shall pay
to the Landlord, on demand, as and for liquidated and agreed final damages for
the Tenant's default, an amount equal to the difference between the rent and
additional rent reserved hereunder for the unexpired portion of the lease term
and the then fair and reasonable rental value of the leased property for the
same period. In the computation of such damages the difference between any
installment of rent becoming due hereunder after the date of termination and the
fair and reasonable rental value of the leased property for the period for which
such installment was payable shall be discounted to the date of termination at
the rate of eight percent per annum. If the leased property or any part thereof
is relet by the Landlord for the unexpired term of this lease, or any part
thereof, before presentation of proof of such liquidated damages to any court,
commission, or tribunal, the amount of rent reserved upon such reletting shall
be deemed prima facie to be the fair and reasonable rental value for the part or
the whole of the leased property so relet during the term of the reletting.
Nothing herein contained shall limit or prejudice the right of the Landlord to
prove for and obtain as liquidated damages by reason of such termination an
amount equal to the maximum allowed by any statute or rule of law in effect at
the time when, and governing the proceedings in which, such damages are to be
proved, whether or not such amount be greater, equal to, or less than the amount
of the difference referred to above.
E. The Tenant hereby expressly waives, so far as permitted by law, the
service of any notice of intention to reenter provided for in any statute, or of
the institution of legal proceedings to that end. The Tenant, for and on behalf
of itself and all persons claiming through or under the Tenant, also waives any
right of redemption or reentry or repossession or to restore the operation of
this lease in case the Tenant shall be dispossessed by a judgment or by warrant
of any court or judge or in the case of reentry or repossession by the Landlord.
In case of any litigation under this lease, the Landlord and the Tenant, so far
as permitted by law, waive trial by jury in any action, proceeding, or
counterclaim brought by either of the parties hereto against the other on any
matter arising out of or in any way connected with this lease, the relationship
of Landlord and Tenant, the Tenant's use of occupancy of the leased property, or
any claim of injury or damage; and further agree that the party not in default
shall be entitled to recover, from the party in default, all costs and
reasonable attorney's fees incurred by the nondefaulting party in enforcing its
rights under this lease agreement.
F. The terms "enter", "reenter", "entry", or "reentry", as used in this
lease are not restricted to their technical legal meaning.
G. Any amounts not paid by Tenant to Landlord when due shall draw
interest at the rate of eighteen percent per annum from due date until paid.
Payment of such interest shall not excuse or cure any default by Tenant under
this lease.
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H. No assent express or implied, to any breach of one or more of the
covenants or terms of this lease shall be deemed or construed to be a waiver of
any succeeding or other breach.
I. Notwithstanding anything to the contrary contained herein, Landlord's
liability under this lease agreement shall be limited to Landlord's interest in
the leased premises.
22. HAZARDOUS MATERIALS INDEMNIFICATION.
Tenant and its agents, employees, contractors and invitees shall not
engage in any business wherein hazardous substances are used or any hazardous
materials released or threatened to be released, including, but not limited to,
the business of generating, transporting, storing, treating or disposing of
hazardous substances or hazard waste except in conformance with all applicable
laws and regulations concerning the use, storage and transportation of hazardous
materials. Hazardous Waste or Hazardous Materials shall include, but shall not
be limited to, substances defined as "hazardous substances" in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. Sec. 9601 et. seq.; or Colo. Rev. Stat. Sec. 00-00-000 et seq. or
00-00-000 et seq.; the Hazardous Materials Transportation Act of 1975, 49 U.S.C.
Sec. 1801 et seq.; and the Resource Conservation and Recovery Act of 1976, 42,
U.S.C. Sec. 6901 et seq. or any amendments or supplements thereto. The leased
Premises shall not be used for the storing or disposal of waste or for storing
or disposal of hazardous substances during the term of the lease except in
conformance with all applicable laws and regulations concerning the use, storage
and transportation of hazardous materials.
Tenant shall comply with all applicable environmental laws, rules and
regulations concerning the Tenant's business. Tenant shall provide to Landlord
copies of all reports required by environmental agencies within (15) fifteen
days of filing.
Tenant hereby agrees to indemnify Landlord and hold Landlord harmless
from and against any and all claims, losses, damages, liabilities, fines,
penalties, charges, administrative and judicial proceedings and orders,
judgments, remedial action requirements, enforcement actions of any kind and all
costs and expenses incurred in connection therewith (including but not limited
to attorneys' fees and expenses), arising directly or indirectly, in whole or in
part, out of the presence on or under the leased Premises, of any Hazardous
Materials (as defined herein) or any releases or discharges of any Hazardous
Materials by Tenant or any employees, agents, contractors or subcontractors of
Tenant or other persons occupying or present on the leased Premises, in
connection with the handling, treatment, removal, storage, decontamination,
cleanup, transport or disposal of any Hazardous Materials at any time located or
present on, under or about the leases Premises. The foregoing indemnity shall
further apply to any residual contamination on or under the leased Premises or
affecting any natural resources and to any contamination of any of the leased
Premises and/or natural resources arising in connection with the generation,
use, handling, storage, transport or disposal of any such Hazardous Materials
and irrespective of whether any of such activities were or will be undertaken in
accordance with
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applicable laws, regulations, codes and ordinances. All obligations of Tenant
hereunder shall survive and continue after the expiration of this lease or its
earlier termination for any reason.
For purposes of this Agreement, the terms "disposal," "release,"
"threatened release," "hazardous substances," and "hazardous wastes" shall mean
and include any hazardous, toxic or dangerous waste, substance or material or
any disposal, discharge, release or threatened release or any defined as such in
any federal, state or local statute, law, ordinance, code, rule, regulations,
order or decree regulating, relating to, or imposing liability or standards of
conduct concerning, any hazardous, toxic or dangerous waste, substance or
material as now or at any time hereafter in effect.
Broker assumes no liability regarding any damages to property, default
of lease or hazardous substances or materials used or released on property by
Tenant.
23. MISCELLANEOUS PROVISIONS.
The paragraph captions contained in this lease agreement are for
convenience only and shall not in any way limit or be deemed to construe or
interpret the terms or provisions hereof.
Time is of the essence of this lease agreement and of all provisions
herein.
This lease agreement shall be construed and enforced in accordance with
the laws of the State of Colorado.
If any provisions of this lease agreement shall be declared invalid or
unenforceable, the remainder of the lease agreement shall continue in full force
and effect.
This lease agreement contains the entire agreement between the parties,
and any executory agreement hereafter made shall be ineffective to change,
modify, or discharge it in whole or in part, unless such executor agreement is
in writing and signed by the party against whom the enforcement of the change,
modification or discharge is sought.
24. NOTICES.
Any notice from one party to another, required by the terms of this
lease agreement, may be delivered in person to such party (delivery to one of
two or more persons named as a party shall be effective notice to all), or shall
be delivered by registered or certified mail, postage prepaid, and shall be
deemed given one day after the date mailed, addressed to the respective parties
as follows:
LANDLORD: XXXXX XXXXXXXX, XXXX XXXXXXXX, XXXXX X. XXXX
dba BOSTON PARTNERSHIP
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
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TENANT: SWEETWATER, INC.
0000 Xxxxxx Xxxxxx, Xxxx X
Xxxxxxxx, Xxxxxxxx 00000
25. INTEGRATION AND AMENDMENT.
The parties agree that this writing represents the entire agreement
between them and that there are no oral or collateral agreements or
understandings of any kind or character except those contained herein. Neither
this agreement nor any term or provision hereof may be changed, waived,
discharged or terminated orally, or in any manner other than by instrument in
writing signed by the parties or their duly authorized agent. In the event that
any provision of this lease shall be affected by such holding, and all of the
remaining provisions of this lease shall continue in full force and effect
pursuant to the terms hereof.
26. OTHER PROVISIONS.
A. THE PRUDENTIAL LTM, REALTORS is not responsible for this lease form,
its contents, its additions, or any deletions. THE PRUDENTIAL LTM, REALTORS
recommends that this Lease Agreement only be used after consulting with
competent legal counsel and tax advisor.
B. Tenant may cancel lease with 90 days prior written notification
during the 45 day period between the dates of June 1, 1998 to July 15, 1998.
Tenant shall reimburse Landlord's unamortized expenses including, but not
limited to, real estate leasing commission.
C. The property is presently under lease until September 30, 1997.
Present Tenant will make every effort to vacate the property between September
1, 1997 and September 15, 1997. The office portion will be the last to be
vacated. 0000 Xxxxxx Xxxxxx, Xxxx X, consisting of approximately 3,000 square
feet, will be the first space vacated. This will be made available to
SweetWater, Inc. Rent for period prior to October 1, 1997 will be $4.00 per
square foot NNN under the same term as the lease agreement.
D. This lease is subject to SweetWater, Inc. Board of Director approval
prior to July 25, 1997. If Landlord is not notified in writing prior to this
date, this condition shall be deemed waived and the lease agreement shall be in
full force and effect.
E. Xxxxx Xxxxxxxx is a licensed Real Estate Broker in the State of
Colorado and an owner of the property.
F. Rental rate shall increase 3% on each anniversary date of the
original lease term.
G. Landlord will allow Tenant to construct a small wet lab area of
approximately 800 square feet, increase electrical power to property and to
install pneumatic air lines at Tenant's
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cost. Landlord must approve location and design of Tenant improvements, approval
shall not be unreasonably withheld.
H. Tenant shall have first right of lease refusal on any adjacent space
that becomes available during the term of this lease under the same lease terms.
Said first right shall be for 24 hours after written notification.
27. BINDING EFFECT.
This agreement shall bind and extend to the heirs, representatives,
successors, and assigns of the parties hereto, if executed in duplicate by each
party on or before __________________, 19__.
IN WITNESS WHEREOF, the parties have executed this Lease Agreement on
the date set forth opposite their respective signatures.
LANDLORD TENANT
/s/Xxxxx X. Xxxxxxxx SWEETWATER, INC.
--------------------
Xxxxx X. Xxxxxxxx
/s/ Xxxx Xxxxxxxx By: /s/ Xxxx X. Xxxxxxxx
----------------- --------------------
Xxxx Xxxxxxxx President
/s/ Xxxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxxxx
----------------- ---------------------
Xxxxx X. Xxxx Secretary
STATE OF COLORADO )
) ss.
COUNTY OF BOULDER )
Subscribed and sworn to before me this 4th day of August, 1997 by Xxxxx
X. Xxxxxxxx, Xxxx Xxxxxxxx and Xxxxx X. Xxxx, as Landlord.
My commission expires: 9-7-97
/s/ Xxxxxxx X. Xxxxx
--------------------
Notary Public
Address: 000 X. Xxxx
Xxxxxxxx, XX 00000
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STATE OF COLORADO )
) ss.
COUNTY OF BOULDER )
Subscribed and sworn to before me this 1st day of August, 1997 by Xxxx
Xxxxxxxx and Xxxxxxx X. Xxxxxx, as Tenant.
My commission expires: April 25, 1999
/s/ Xxxxx X. Xxxxx
------------------
Notary Public
Address: 0000 Xxxxx Xxxxxx Xxx. #X
Xxxxxxxx, XX 00000
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