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EXHIBIT 10.22
LEASE AGREEMENT
OFFICE AND INDUSTRIAL SPACE
This Lease Agreement is made and entered into as of the 8th day of March,1994,
by and between Sharp Point Properties, LLC ("Landlord"), whose address is
0000 Xxxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxxx, XX 00000, and Paravax, Inc.
("Tenant"), whose address is 0000 Xxxxx Xxxxx Xxxxx, Xxxx Xxxxxxx, XX 00000 .
In consideration of the covenants, terms, conditions, agreements and payments
as herein set forth, the Landlord and Tenant hereby enter into the following
Lease:
1. Definitions. Whenever the following words or phrases are used in this
Lease, said words or phrases shall have the following meaning:
A. "Area" shall mean the parcel of land depicted on Exhibit "A"
attached hereto and commonly known and referred to as 0000 Xxxxx Xxxxx Xxxxx,
Xxxx Xxxxxxx, Xxxxxxxx. The Area includes the Leased Premises and one or more
buildings. The Area may include Common Areas.
B. "Building" shall mean a building located in the Area.
C. "Common Areas" shall mean all entrances, exits, driveways, curbs,
walkways, hallways, parking areas, landscaped areas, restrooms, loading and
service areas, and like areas or facilities which are located in the Area and
which are designated by the Landlord as areas or facilities available for the
nonexclusive use in common by persons designated by the Landlord.
D. "Leased Premises" shall mean the premises herein leased to the
Tenant by the Landlord.
E. "Tenant's Prorata Share" as to the Building in which the Leased
Premises are located shall mean an amount (expressed as a percentage) equal to
the number of square feet included in the Leased Premises divided by the total
number of leasable square feet included in said Building. The Tenant's Prorata
Share as to Common Areas shall mean an amount (expressed as a percentage )
equal to the number of square feet included in the Leased Premises divided by
the total number of leasable square feet included in all Buildings located in
the Area. The Tenant's Prorata Share for Common Areas may change from time to
time as the leasable square footage in all Buildings located in the Area is
increased or decreased.
2. Leased Premises. The Landlord hereby leases unto the Tenant, and the
Tenant hereby leases from the Landlord, the following described premises:
Space All in Building 0000 Xxxxx Xxxxx Xxxxx
consisting of 19,200 square feet.
3. Base Term. The term of this Lease shall commence at 12:00 noon on
September 1, 1994, and, unless sooner terminated as herein provided for, shall
end at 12:00 noon on September, 2004 ("Lease Term"). Except as specifically
provided to the contrary herein, the Leased Premises shall, upon the
termination of this Lease, by virtue of the expiration of the Lease Term or
otherwise, be returned to the Landlord by the Tenant in as good or better
condition than when entered upon by the Tenant, ordinary wear and tear
excepted. For Option Period see Exhibit F.
The term of this Lease will move to October 1, 1994 - October 1, 2004 if
Landlord so notifies Tenant by March 31, 1994
4. Rent. Tenant shall pay the following rent for the Leased Premises:
A. Base Monthly Rent. Tenant shall pay to Landlord, without notice
and without setoff, at the address of Landlord as herein set forth, the
following Base Monthly Rent ("Base Monthly Rent"), said Base Monthly Rent to be
paid in advance on the first day of each month during the term hereof. In the
event that this Lease commences on a date other than the first day of a month,
the Base Monthly Rent for the first month of the Lease Term shall be prorated
for said partial month. Below is a schedule of Base Monthly Rental payments as
agreed upon:
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During Lease Term
FOR PERIOD TO PERIOD A BASE MONTHLY
STARTING ENDING RENT OF
September 1, 1994 September 1, 2004 $ 14,320.00
B. Lease Term Adjustment. If, for any reason, other than delays
caused by the Tenant, the Leased Premises are not ready for Tenant's occupancy
on September 1, 1994, the Tenant's rental obligation and other monetary
expenses (i.e. taxes, utilities, etc.) shall be abated in direct proportion to
the number of days of delay. It is hereby agreed that the premises shall be
deemed ready for occupancy on the day the Landlord receives a T.C.O. or C.O.
from the appropriate authority, or on the day the Landlord gives Tenant the
keys to the Leased Premises if a building permit has not been applied for
and/or is not required by the appropriate authority.
C. Cost of Living Adjustment. The Base Monthly Rental specified in
paragraph 4A above shall be recalculated for each Lease Year as defined
hereinafter following the first Lease Year of this Lease Agreement. The
recalculated Base Monthly Rental shall be hereinafter referred to as the
"Adjusted Monthly Rental". The Adjusted Monthly Rental for each Lease Year
after the first Lease Year shall be the greater of: (i) the amount of the
previous year's Adjusted Monthly Rental, (or the Base Monthly Rental if
calculating the Adjusted Monthly Rental for the second Lease Year), or (ii) an
amount calculated by the rent adjustment formula set forth below. In applying
the rent adjustment formula, the following definitions shall apply:
(1) "Lease Year" shall mean a period of twelve (12) consecutive full
calendar months with the first Lease Year commencing on the date of the
commencement of the term of this Lease and each succeeding Lease Year
commencing upon the anniversary date of the first Lease Year; however, if this
Lease does not commence on the first day of a month, then, the first Lease Year
and each succeeding Lease Year shall commence on the first day of the first
month following each anniversary date of this Lease;
(2) "Bureau" shall mean the Bureau of Labor Statistics of the United
States Department of Labor or any successor agency that shall issue the Price
Index referred to in this Lease Agreement.
(3) "Price Index" shall mean the "Consumer Price Index-All Urban
Consumers-All Items (CPI-U) U.S. City Average (1982-84=100)" issued from time
to time by the Bureau. In the event the Price Index shall hereafter be
converted to a different standard reference base or otherwise revised, the
determination of the increase in the Price Index shall be made with the use of
such conversion factor, formula or table as may be published by Xxxxxxxx-Xxxx,
Inc. or failing such publication, by another nationally recognized publisher of
similar statistical information. In the event the Price Index shall cease to
be published, then, for the purposes of this paragraph 4C there shall be
substituted for the Price Index such other index as the Landlord and the Tenant
shall agree upon, and if they are unable to agree within sixty (60) days after
the Price Index ceases to be published, such matter shall be determined by
arbitration in accordance with the Rules of the American Arbitration
Association.
(4) "Base Price Index" shall mean the Price Index released to the
public during the second calendar month preceding the commencement of this
Lease Agreement.
(5) "Revised Price Index" shall mean the Price Index released to the
public during the second calendar month preceding the Lease Year for which the
Base Annual Rental is to be adjusted;
(6) "Basic Monthly Rental" shall mean the Basic Monthly Rental set
forth in subparagraph 4A above. The rent adjustment formula used to calculate
the Adjusted Monthly Rental is as follows:
Adjusted Monthly = Revised Price Index X Base Monthly Rental
Rental -------------------
Base Price Index
(7) Notwithstanding anything contained to the contrary in this
Paragraph C, Tenant's annual increase shall be no greater than 5%.
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The Adjusted Monthly Rental as hereinabove provided shall continue to be
payable monthly as required in paragraph 4A above without necessity of any
further notice by the Landlord to the Tenant.
D. Total Net Lease. The Tenant understands and agrees that this
Lease is a total net lease (a "net, net, net lease"), whereby the Tenant has
the obligation to reimburse the Landlord for a share of all costs and expenses
(taxes, insurance, trash removal, Common Area operation and maintenance and
like costs and expenses), incurred by the Landlord as a result of the
Landlord's ownership and operation of the Area. Major capital improvements,
such as total replacement of the roof or parking lot are not considered to be
maintenance items as described in this Paragraph 6D.
5. Security Deposit. Landlord acknowledges receipt from the Tenant
of the sum of Fourteen Thousand, Three Hundred Twenty & No/100 Dollars ($
14,320.00 ) to be retained by Landlord without responsibility for payment of
interest thereon, as security for performance of all the terms and conditions
of this Lease Agreement to be performed by Tenant, including payment of all
rent due under the terms hereof. Deductions may be made by Landlord from the
amount so retained for the reasonable cost of repairs to the Leased Premises
(ordinary wear and tear excepted), for any rent delinquent under the terms
hereof and/or for any sum used in any manner to cure any default of Tenant
under the terms of this Lease. In the event deductions are so made, the Tenant
shall, upon notice from the Landlord, redeposit with the Landlord such amounts
so expended so as to maintain the deposit in the amount as herein provided for,
and failure to so redeposit shall be deemed a failure to pay rent under the
terms hereof. Nothing herein contained shall limit the liability of Tenant as
to any damage to the Leased Premises, and Tenant shall be responsible for the
total amount of any damage and/or loss occasioned by actions of Tenant.
Landlord may deliver the funds deposited hereunder by Tenant to any purchaser
of Landlord's interest in the Leased Premises in the event such interest shall
be sold, and thereupon Landlord shall be discharged from any further liability
with respect to such deposit.
6. Use of Premises. Tenant shall use the Leased Premises only for
Research, Development and Manufacture of Biopharmaceutical Products and for no
other purpose whatsoever except with the written consent of Landlord. Tenant
shall not allow any accumulation of trash or debris on the Leased Premises or
within any portion of the Area. All receiving and delivery of goods and
merchandise and all removal of garbage and refuse shall be made only by way of
the rear and/or other service door provided therefore. In the event the Leased
Premises shall have no such door, then these matters shall be handled in a
manner satisfactory to Landlord. No storage of any material outside of the
Leased Premises shall be allowed unless first approved by Landlord in writing,
and then in only such areas as are designated by Landlord. Tenant shall not
commit or suffer any waste on the Leased Premises nor shall Tenant permit any
nuisance to be maintained on the Leased Premises or permit any disorderly
conduct or other activity having a tendency to annoy or disturb any occupants
of any part of the Area and/or any adjoining property.
7. Laws and Regulations. -- Tenant Responsibility. The Tenant shall,
at its sole cost and expense, comply with all laws and regulations of any
governmental entity, board, commission or agency having jurisdiction over the
Leased Premises. Tenant agrees not to install any electrical equipment that
overloads any electrical paneling, circuitry or wiring and further agrees to
comply with the requirements of the insurance underwriter or any governmental
authorities having jurisdiction thereof.
8. Landlord's Rules and Regulations. Landlord reserves the right to
adopt and promulgate rules and regulations applicable to the Leased Premises
and from time to time amend or supplement said rules or regulations. Notice of
such rules and regulations and amendments and supplements thereto shall be
given to Tenant, and Tenant agrees to comply with and observe such rules and
regulations and amendments and supplements thereto provided that the same apply
uniformly to all Tenants of the Landlord in the Area.
9. Parking. If the Landlord provides off street parking for the
common use of Tenants, employees and customers of the Area, the Tenant shall
park all vehicles of whatever type used by Tenant and/or Tenant's employees
only in such areas thereof as are designated by Landlord for this purpose, and
Tenant accepts the responsibility of seeing that Tenant's employees park only
in the areas so designated. Tenant shall, upon the request of the Landlord,
provide to the Landlord license numbers of the Tenant's vehicles and the
vehicles of Tenant's employees.
10. Control of Common Areas. -- Exclusive control of the Landlord.
All Common Areas shall at all times be subject to the exclusive control and
management of Landlord, notwithstanding that Tenant and/or Tenant's employees
and/or customers may have a nonexclusive right to the use thereof. Landlord
shall have the right from time to time to establish, modify and enforce rules
and regulations with respect to the use of said facilities and Common Areas.
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11. Taxes.
A. Real Property Taxes and Assessments. The Tenant shall pay
to the Landlord on the first day of each month, as additional rent, the
Tenant's Prorata Share of all real estate taxes and special assessments levied
and assessed against the Building in which the Leased Premises are located and
the Common Areas. If the first and last years of the Lease Term are not
calendar years, the obligations of the Tenant hereunder shall be prorated for
the number of days during the calendar year that this Lease is in effect. The
monthly payments for such taxes and assessments shall be $ 1,440.00 until the
Landlord receives the first tax statement for the referred to properties.
Thereafter, the monthly payments shall be based upon 1/12th of the prior year's
taxes and assessments. Once each year the Landlord shall determine the actual
Tenant's Prorata Share of taxes and assessments for the prior year and if the
Tenant has paid less than the Tenant's Prorata Share for the prior year the
Tenant shall pay the deficiency to the Landlord with the next payment of Base
Monthly Rent, or, if the Tenant has paid in excess of the Tenant's Prorata
Share for the prior year the Landlord shall forthwith refund said excess to the
Tenant.
B. Personal Property Taxes. Tenant shall be responsible for,
and shall pay promptly when due, any and all taxes and/or assessments levied
and/or assessed against any furniture, fixtures, equipment and items of a
similar nature installed and/or located in or about the Leased Premises by
Tenant.
C. Rent Tax. If a special tax, charge or assessment is
imposed or levied upon the rents paid or payable hereunder or upon the right of
the Landlord to receive rents hereunder (other than to the extent that such
rents are included as a part of the Landlord's income for the purpose of an
income tax), the Tenant shall reimburse the Landlord for the amount of such tax
within fifteen (15) days after demand therefore is made upon the Tenant by the
Landlord.
D. Should Landlord protest and win a reduction in the real
estate taxes for the Building and Area, Tenant shall be obligated to pay its
Prorata Share of the cost of such protest, if the protest is handled by a party
other than the Landlord.
12. Insurance.
A. Landlord's Insurance. The Landlord shall procure and
maintain fire and casualty coverage for full replacement value of building to
include, but not be limited to roofs and walls, loss of rents and liability
insurance as it, from time to time, deems proper and appropriate in reference
to the Building in which the Leased Premises are located and the Common Areas.
Such insurance shall not be required to cover any of the Tenant's property and
the Tenant shall have no interest in any of the proceeds of such insurance.
B. Tenant's Insurance. Tenant shall, at its sole cost and
expense, insure on a full replacement cost basis, Tenant's inventory, fixtures,
leasehold improvements and betterments located on the Leased Premises against
loss resulting from fire or other casualty. Tenant shall procure, pay for and
maintain, comprehensive public liability insurance providing coverage from and
against any loss or damage occasioned by an accident or casualty on, about or
adjacent to the Leased Premises. Said liability policy shall be written on an
"occurrence basis" with limits of not less than $1,000,000 combined single
limit coverage. Certificates for such insurance shall be delivered to Landlord
and shall provide that said insurance shall not be changed, modified, reduced
or cancelled without thirty (30) days prior written notice thereof being given
to Landlord.
C. Tenant's High Pressure Steam Boiler Insurance. If Tenant
makes use of any kind of steam or other high pressure boiler or other apparatus
which presents a risk of damage to the Leased Premises or to the Building or
other improvements of which the Leased Premises are a part or to the life or
limb of persons within such premises, Tenant shall secure and maintain
appropriate boiler insurance in an amount satisfactory to Landlord. The
Landlord shall be named insured in any such policy or policies. Certificates
for such insurance shall be delivered to Landlord and shall provide that said
insurance shall not be changed, modified, reduced or cancelled without thirty
(30) days prior written notice thereof being given to Landlord.
D. Tenant's Share of Landlord Insurance. Tenant shall pay
the Landlord as additional rent Tenant's Prorata Share of the insurance secured
by the Landlord pursuant to "12A" above. Payment shall be made on the first
day of each month as additional rent. The monthly payments for such insurance
shall be $96.00 until changed by Landlord as a result of an increase or decrease
in the cost of such insurance.
E. Mutual Subrogation Waiver. Landlord and Tenant hereby
grant to each other, on behalf of any insurer providing fire and extended
coverage to either of them covering the Leased Premises, Buildings or other
improvements thereon or contents thereof, a waiver of any right of subrogation
any such insurer of one party may acquire against the other or as against the
Landlord or
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Tenant by virtue of payments of any loss under such insurance. Such a waiver
shall be effective so long as the Landlord and Tenant are empowered to grant
such waiver under the terms of their respective insurance policy or policies
and such waiver shall stand mutually terminated as of the date either Landlord
or Tenant gives notice to the other that the power to grant such waiver has
been so terminated.
13. Utilities. Tenant shall be solely responsible for and promptly
pay all charges for heat, water, gas, electric, sewer service and any other
utility service used or consumed on the Leased Premises. Should Landlord elect
to supply all or any of the utility services to be used or consumed on the
Leased Premises, Tenant shall, within ten (10) days from presentation of the
statement for such utility service, pay to Landlord, as additional rent under
the terms hereof, the amount of said statement if it represents utility service
furnished to the Leased Premises only or its prorata share of said statement
if it includes utility service to an area greater than the Leased Premises.
Said proration of utilities shall be reviewed by Landlord and Tenant at the end
of the first year of occupancy, at which time Landlord shall determine if the
present percentage of said total utilities is equitable in relation to the use
of total services by all the Tenants and will be adjusted by Landlord, if
necessary. The Tenant shall forthwith upon taking occupancy of the Leased
Premises make arrangements with the Public Service Company, U.S. West or other
appropriate utility company to pay the utilities used on the Leased Premises
and to have the same billed to the Tenant at the address designated by the
Tenant. Should there be a time where the Landlord remains responsible for
utilities supplied to the Leased Premises, the Landlord shall xxxx the Tenant
therefore and the Tenant shall promptly reimburse the Landlord therefore. In
no event shall Landlord be liable for any interruption or failure in the supply
of any such utility to the Leased Premises.
In the event the utility company supplying water and/or sewer to the
Leased Premises determines that an additional service fee, impact fee, and/or
assessment, or any other type of payment or penalty is necessary due to
Tenant's use and occupancy of the Building, nature of operation and/or
consumption of utilities, said expense shall be borne solely by the Tenant.
Said expense shall be paid promptly and any repairs requested by the utility
company shall be performed by Tenant immediately and without any delay.
14. Maintenance Obligations of Landlord. Except as herein otherwise
specifically provided for, and not including capital improvement, Landlord
shall keep and maintain the roof and exterior of the Building of which the
Leased Premises are a part in good repair and condition. Tenant shall repair
and pay for any damage to roof, foundation and external walls caused by
Tenant's action, negligence or fault.
15. Maintenance Obligations of the Tenant. Subject only to the
maintenance obligations of the Landlord as herein provided for, the Tenant
shall, during the entire Lease Term, including all extensions thereof, at the
Tenant's sole cost and expense, keep and maintain the Leased Premises in good
condition and repair, including specifically the following:
A. Electrical Systems. Tenant agrees to maintain in good
working order and to make all required repairs and replacements to the
electrical systems for the Leased Premises. Tenant upon signing this Lease
acknowledges that Tenant has inspected the existing electrical systems and all
such systems are in good repair and working order.
B. Plumbing Systems. Tenant agrees to maintain in good
working order and to make all required repairs or replacements to the plumbing
systems for the Leased Premises. Tenant upon signing this Lease acknowledges
that Tenant has inspected the existing plumbing systems and all such systems
are in good repair and working order.
C. Inspections and Service. Upon termination of Lease
Agreement, Tenant agrees, before vacating premises, to employ at Tenant's sole
cost and expense, a licensed contractor to inspect, service and write a written
report on the systems referred to in "A" and "B" of this Paragraph. Landlord
shall have the right to order such an inspection if Tenant fails to provide
evidence of such inspection, and, to follow the recommendations of such reports
and to charge the expense thereof to the Tenant.
D. Tenant's Responsibility for Building and Area Repairs.
Tenant shall be responsible for any repairs required for any part of the
Building or Area of which the Leased Premises are a part if such repairs are
necessitated by the actions or inactions of Tenant.
E. Cutting Roof. Tenant must obtain in writing the
Landlord's approval prior to making any roof penetrations. Failure by Tenant
to obtain written permission to penetrate a roof shall relieve Landlord of any
roof repair obligations as set forth in Paragraph "14" hereof. Tenant further
agrees to repair, at its sole cost and expense, all roof penetrations made by
the Tenant and to use, if so requested by Landlord, a licensed contractor
selected by the Landlord to make such penetrations and repairs.
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F. Glass and Doors. The repair and replacement of all glass
and doors on the Leased Premises shall be the responsibility of the Tenant.
Any such replacements or repairs shall be promptly completed at the expense of
the Tenant.
G. Liability for Overload. Tenant shall be responsible for
the repair or replacement of any damage to the Leased Premises, the Building or
the Area which result from the Tenant's movement of heavy articles therein or
thereon. Tenant shall not overload the floors of any part of the Leased
Premises.
H. Liability for Overuse and Overload of Operating Systems.
Tenant shall be responsible for the repair, upgrade, modification, and/or
replacement of any operating systems servicing the Leased Premises and/or all
or part of the Building which is necessitated by Tenant's change or increase in
use of or non-disclosed use of all or a part of the Leased Premises. Operating
systems include, but are not limited to, electrical systems; plumbing systems
(both water and natural gas); heating, ventilating, and air conditioning
systems; telecommunications systems; computer and network systems; lighting
systems, fire sprinkler systems; security systems; and building control
systems, if any.
I. Inspection of Leased Premises-"As Is" Conditions. Tenant
has inspected the Leased Premises and accepts the Leased Premises in the
condition that they exist as of the date of this Lease, including, but not
limited to, all mechanical, plumbing and electrical systems and the conditions
of the interior except: Tenant shall have thirty (30) days to inspect the
condition of the mechanical, plumbing and electrical systems to ensure that
they are in good working order. If said systems are not found to be in good
working order as determined by a licensed contractor, Landlord shall be
responsible for making any necessary repairs.
J. Failure of Tenant to Maintain Premises. Should Tenant
neglect to keep and maintain the Leased Premises as required herein, the
Landlord shall have the right, but not the obligation, to have the work done
and any reasonable costs plus a ten percent (10%) overhead charge therefore
shall be charged to Tenant as additional rental and shall become payable by
Tenant with the payment of the rental next due.
16. Common Area Maintenance. Tenant shall be responsible for
Tenant's Prorata share of the total costs incurred for the operation,
maintenance and repair of the Common Areas, including, but not limited to, the
costs and expenses incurred for the operation, maintenance and repair of
parking areas (including restriping and repaving); removal of snow; utilities
for common lighting and signs; normal HVAC maintenance and elevator maintenance
(if applicable); trash removal; security to protect and secure the Area; common
entrances, exits, and lobbies of the Building; all common utilities, including
water to maintain landscaping; replanting in order to maintain a smart
appearance of landscape areas; supplies; depreciation on the machinery and
equipment used in such operation, maintenance and repair; the cost of personnel
to implement such services; the cost of maintaining in good working condition
the HVAC system(s) for the Leased premises; the cost of maintaining in good
working condition the elevator(s) for the Leased Premises, if applicable; and
Ten percent ( 10 %) of all such operational, maintenance and repair costs
to cover Landlord's administrative and overhead costs. These costs shall be
estimated on an annual basis by the Landlord and shall be adjusted upwards or
downwards depending on the actual costs for the preceding twelve months.
Tenant shall pay monthly, commencing with the first month of the Lease Term, as
additional rent due under the terms hereof, a sum equal to Tenant's Prorata
Share of the estimated costs for said twelve (12) month period, divided by 12.
The estimated initial monthly costs are $ 1,040.00. Once each year the
Landlord shall determine the actual costs of the foregoing expenses for the
prior year and if the actual costs are greater than the estimated costs, the
Tenant shall pay its Tenant's Prorata Share of the difference between the
estimated costs and the actual costs to the Landlord with the next payment of
Base Monthly Rent, or, if the actual costs are less than the estimated costs,
the Landlord shall forthwith refund the amount of the Tenant's excess payment
to the Tenant.
17. Inspection of and Right of Entry to Leased Premises--Regular,
Emergency, Reletting. Landlord and/or Landlord's agents and employees, shall
have the right to enter the Leased Premises at all times during regular
business hours and, at all times during emergencies, to examine the Leased
Premises, to make such repairs, alterations, improvements or additions as
Landlord deems necessary, and Landlord shall be allowed to take all materials
into and upon said Leased Premises that may be required therefore without the
same constituting an eviction of Tenant in whole or in part, and the rent
reserved shall in no way xxxxx while such repairs, alterations, improvements or
additions are being made, by reason of loss or interruption of business of
Tenant or otherwise. During the six months prior to the expiration of the term
of this Lease or any renewal thereof, Landlord may exhibit the Leased Premises
to prospective tenants and/or purchasers and may place upon the Leased Premises
the usual notices indicating that the Leased Premises are for lease and/or
sale.
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18. Alteration-Changes and Additions-Responsibility. Unless the
Landlord's approval is first secured in writing, such approval not to be
unreasonably withheld, the Tenant shall not install or erect inside partitions,
add to existing electric power service, add telephone outlets, add light
fixtures, install additional heating and/or air conditioning or make any other
changes or alterations to the interior or exterior of the Leased Premises. Any
such changes or alterations shall be made at the sole cost and expense of the
Tenant. At the end of this Lease, all such fixtures, equipment, additions,
changes and/or alterations (except trade fixtures installed by Tenant) shall be
and remain the property of Landlord; provided, however, Landlord shall have the
option to require Tenant to remove any or all such fixtures, equipment,
additions and/or alterations and restore the Leased Premises to the condition
existing immediately prior to such change and/or installation, normal wear and
tear excepted, all at Tenant's cost and expense. All such work shall be done
in a good and workmanlike manner and shall consist of new materials unless
agreed to otherwise by Landlord. Any and all repairs, changes and/or
modifications thereto shall be the responsibility of, and at the cost of,
Tenant. Landlord may require adequate security from Tenant assuring no
mechanics' liens on account of work done on the Leased Premises by Tenant and
may post the Leased Premises, or take such other action as is then permitted by
law, to protect the Landlord and the Leased Premises against mechanics' liens.
Landlord may also require adequate security to assure Landlord that the Leased
Premises will be restored to their original condition upon termination of this
Lease.
19. Sign Approval. Except for signs which are located inside of the
Leased Premises and which are not attached to any part of the Leased Premises,
the Landlord must approve in writing any sign to be placed in or on the
interior or exterior of the Leased Premises, regardless of size or value.
Specifically, signs attached to windows of the Leased Premises must be so
approved by the Landlord. As a condition to the granting of such approval,
Landlord shall have the right to require Tenant to furnish a bond or other
security acceptable to Landlord sufficient to insure completion of and payment
for any such sign work to be so performed. Tenant shall, during the entire
Lease Term, maintain Tenant's signs in good condition and repair at Tenant's
sole cost and expense. Tenant shall, remove all signs at the termination of
this Lease, at Tenant's sole risk and expense and shall in a workmanlike manner
properly repair any damage and close any holes caused by the installation
and/or removal of Tenant's signs. Tenant shall give Landlord prior notice of
such removal so that a representative of Landlord shall have the opportunity of
being present when the signage is removed, or shall pre-approve the manner and
materials used to repair damage and close the holes caused by removal.
20. Right of Landlord to Make Changes and Additions. Landlord
reserves the right at any time to make alterations or additions to the Building
or Area of which the Leased Premises are a part. Landlord also reserves the
right to construct other buildings and/or improvements in the Area and to make
alterations or additions thereto, all as Landlord shall determine. Easements
for light and air are not included in the leasing of the Leased Premises to
Tenant. Landlord further reserves the exclusive right to the roof of the
Building of which the Leased Premises are a part. Landlord also reserves the
right at any time to relocate, vary and adjust the size of any of the
improvements or Common Areas located in the Area, provided, however, that all
such changes shall be in compliance with the requirements of governmental
authorities having jurisdiction over the Area. Nothing in this Lease will
require Tenant to indemnify, hold harmless or release Landlord for any claim,
loss, expense, cost judgement and/or demand, or fees, arising from the
negligence or willful misconduct of Landlord, its agents, employees or
contractors, or a breach of the obligations of Landlord hereunder.
21. Damage or Destruction of Leased Premises. In the event the
Leased Premises and/or the Building of which the Leased Premises are a part
shall be totally destroyed by fire or other casualty or so badly damaged that,
in the opinion of Landlord and Tenant, it is not feasible to repair or rebuild
same, Landlord shall have the right to terminate this Lease upon written notice
to Tenant. If the Leased Premises are partially damaged by fire or other
casualty, except if caused by Tenant's negligence, and said Leased Premises are
not rendered untenantable thereby, as determined by Landlord and Tenant, an
appropriate reduction of the rent shall be allowed for the unoccupied portion
of the Leased Premises until repair thereof shall be substantially completed.
If the Landlord elects to exercise the right herein vested in it to terminate
this Lease as a result of damage to or destruction of the Leased Premises or
the Building in which the Leased Premises are located, said election shall be
made by giving notice thereof to the Tenant within thirty (30) days after the
date of said damage or destruction.
22. Governmental Acquisition of Property. The parties agree that
Landlord shall have complete freedom of negotiation and settlement of all
matters pertaining to the acquisition of the Leased Premises, the Building, the
Area, or any part thereof, by any governmental body or other person or entity
via the exercise of the power of eminent domain, it being understood and agreed
that any financial settlement made or compensation paid respecting said land or
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improvements to be so taken, whether resulting from negotiation and agreement
or legal proceedings, shall be the exclusive property of Landlord, there being
no sharing whatsoever between Landlord and Tenant of any sum so paid. In the
event of any such taking, Landlord shall have the right to terminate this Lease
on the date possession is delivered to the condemning person or authority.
Such taking of the property shall not be a breach of this Lease by Landlord nor
give rise to any claims in Tenant for damages or compensation from Landlord.
Nothing herein contained shall be construed as depriving the Tenant of the
right to retain as its sole property any compensation paid for any tangible
personal property owned by the Tenant which is taken in any such condemnation
proceeding.
23. Assignment or Subletting. Tenant may not assign this Lease, or
sublet the Leased Premises or any part thereof, without the written consent of
Landlord, such consent not to be unreasonably withheld. No such assignment or
subletting if approved by the Landlord shall relieve Tenant of any of its
obligations hereunder, and, the performance or nonperformance of any of the
covenants herein contained by subtenants shall be considered as the performance
or the nonperformance by the Tenant. In the event of an acquisition, merger,
or reorganization, the assignment of the Lease shall not be unreasonably
withheld by Landlord.
24. Warranty of Title. Subject to the provisions of the following
three (3) paragraphs hereof, Landlord covenants it has good right to lease the
Leased Premises in the manner described herein and that Tenant shall peaceably
and quietly have, hold, occupy and enjoy the Leased Premises during the term of
the Lease.
25. Access. Landlord shall provide Tenant nonexclusive access to the
Leased Premises through and across land and/or other improvements owned by
Landlord. Landlord shall have the right, during the term of this Lease, to
designate, and to change, such nonexclusive access.
26. Subordination. Tenant agrees that this Lease shall be
subordinate to any mortgages, trust deeds or ground leases that may now exist
or which may hereafter be placed upon said Leased Premises and to any and all
advances to be made thereunder, and to the interest thereon, and all renewals,
replacements and extensions thereof. Tenant shall execute and deliver whatever
instruments may be required for the above purposes, and failing to do so within
ten (10) days after demand in writing, does hereby make, constitute and
irrevocably appoint Landlord as its attorney-in-fact and in its name, place and
stead so to do. Tenant shall in the event of the sale or assignment of
Landlord's interest in the Area or in the Building of which the Leased Premises
form a part, or in the event of any proceedings brought for the foreclosure of
or in the event of exercise of the power of sale under any mortgage made by
Landlord covering the Leased Premises, attorn to the purchaser and recognize
such purchaser as Landlord under this Lease.
27. Easements. The Landlord shall have the right to grant any
easement on, over, under and above the Area for such purposes as Landlord
determines, provided that such easements do not materially interfere with
Tenant's occupancy and use of the Leased Premises.
28. Tenant's Hold Harmless and Indemnification Agreement. Tenant
shall indemnify and hold Landlord harmless from and against any and all claims,
losses, expenses, costs, judgments, and/or demands, including court costs and
attorney's fees, suffered or incurred by the Landlord, arising from activities
of Tenant on the Leased Premises or in the Building or in the Area and/or on
account of any operation or action by Tenant and/or from and against all claims
arising from any breach or default on the part of Tenant or any act of
negligence of Tenant, it agents, contractors, servants, employees, licensees,
or invitees; or any accident, injury or death of any person or damage to any
property in or about the Leased Premises, the Building or the Area.
29. Acts or Omission of Others. The Landlord, or its employees or
agents, or any of them, shall not be responsible or liable to the Tenant or to
the Tenant's guests, invitees, employees, agents or any other person or entity,
for any loss or damage that may be caused by the acts or omissions of other
tenants, their guests or invitees, occupying any other part of the Area or by
persons who are trespassers on or in the Area, or for any loss or damage caused
or resulting from the bursting, stoppage, backing up or leaking of water, gas,
electricity or sewers or caused in any other manner whatsoever, unless such
loss or damage is caused by or results from the negligent acts of the Landlord,
its agents or contractors.
30. Interest on Past Due Obligations. Any amount due to Landlord not
paid when due shall bear interest at One and One Half (1 1/2%) percent per
month from due date until paid. Payment of such interest shall not excuse or
cure any default by Tenant under this Lease.
31. Holding Over-Double Last Month's Rent. If Tenant shall remain in
possession of the Leased Premises after the termination of this Lease, whether
by expiration of the Lease Term or otherwise, without a written agreement as to
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such possession, then Tenant shall be deemed a month-to-month Tenant. The rent
rate during such holdover tenancy shall be equivalent to double the monthly
rent paid for the last full month of tenancy under this Lease, excluding any
free rent concessions which may have been made for the last full month of the
Lease. No holding over by Tenant shall operate to renew or extend this Lease
without the written consent of Landlord to such renewal or extension having
been first obtained. Tenant shall indemnify Landlord against loss or liability
resulting from the delay by Tenant in surrendering possession of the Leased
Premises including, without limitation, any claims made with regard to any
succeeding occupancy bounded by such holdover period.
32. Modification or Extensions. No modification or extension of this
Lease shall be binding upon the parties hereto unless in writing and unless
signed by the parties hereto.
33. Notice Procedure. All notices, demands and requests which may be
or are required to be given by either party to the other shall be in writing
and such that are to be given to Tenant shall be deemed to have been properly
given if served on Tenant or an employee of Tenant or sent to Tenant by United
States registered or certified mail, return receipt requested, properly sealed,
stamped and addressed to Tenant at 0000 Xxxxx Xxxxx Xxxxx, Xxxx Xxxxxxx, XX
00000 or at such other place as Tenant may from time to time designate in a
written notice to Landlord; and, such as are to be given to Landlord shall be
deemed to have been properly given if personally served on Landlord or if sent
to Landlord, United States registered or certified mail, return receipt
requested, properly sealed, stamped and addressed to Landlord at 0000 Xxxxx
Xxxx Xxxxxx #000, Xxxxxxx, XX 00000 or at such other place as Landlord may from
time to time designate in a written notice to Tenant. Any notice given by
mailing shall be effective as of the date of mailing.
34. Memorandum of Lease-Notice to Mortgagee. The Landlord and Tenant
agree not to place this Lease of record, but upon the request of either party
to execute and acknowledge so the same may be recorded a short form lease
indicating the names and respective addresses of the Landlord and Tenant, the
Leased Premises, the Lease Term, the dates of the commencement and termination
of the Lease Term and options for renewal, if any, but omitting rent and other
terms of this Lease. Tenant agrees to an assignment by Landlord of rents and
of the Landlord's interest in this Lease to a mortgagee, if the same be made by
Landlord. Tenant further agrees if requested to do so by the Landlord that it
will give to said mortgagee a copy of any request for performance by Landlord
or notice of default by Landlord; and in the event Landlord fails to cure such
default, the Tenant will give said mortgagee a sixty (60) day period in which
to cure the same. Said period shall begin with the last day on which Landlord
could cure such default before Tenant has the right to exercise any remedy by
reason of such default. All notices to the mortgagee shall be sent by United
States registered or certified mail, postage prepaid, return receipt requested.
35. Controlling Law. The Lease, and all terms hereunder shall be
construed consistent with the laws of the State of Colorado. Any dispute
resulting in litigation hereunder shall be resolved in court proceedings
instituted in Larimer County and in no other jurisdiction.
36. Landlord Not a Partner With the Tenant. Nothing contained in
this Lease shall be deemed, held or construed as creating Landlord as a
partner, agent, associate of or in joint venture with Tenant in the conduct of
Tenant's business, it being expressly understood and agreed that the
relationship between the parties hereto is and shall at all times remain that
of Landlord and Tenant.
37. Partial Invalidity. If any term, covenant or condition of this
Lease or the application thereof to any person or circumstance shall, to any
extent, be invalid or unenforceable, the remainder of this Lease or the
application of such term, covenant or condition to persons and circumstances
other than those to which it has been held invalid or unenforceable, shall not
be affected thereby, and each term, covenant and condition of this Lease shall
be valid and shall be enforced to the fullest extent permitted by law.
38. Default-Remedies of Landlord.
A. If Tenant shall default in the payment of rent or in the
keeping of any of the terms, covenants or conditions of this Lease to be kept
and/or performed by Tenant; and, has not cured such default within ten (10)
days after written notice from Landlord, Landlord may immediately, or at any
time thereafter, reenter the Leased Premises, remove all persons and property
therefrom, without being liable to indictment, prosecution for damage
therefore, or for forcible entry and detainer and repossess and enjoy the
Leased Premises, together with all additions thereto or alterations and
improvements thereof. Landlord may, at its option, at any time and from time
to time thereafter, relet the Leased Premises or any part thereof for the
account of Tenant or otherwise, and receive and collect the rents therefore and
apply the same first to the payment of such expenses as Landlord may have
incurred in recovering possession and for putting the same in good order and
condition for rerental, and expense, commissions and charges paid by Landlord
in reletting the Leased Premises. Any
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such reletting may be for the remainder of the term of this Lease or for a
longer or shorter period. In lieu of reletting such Leased Premises, Landlord
may occupy the same or cause the same to be occupied by others. Whether or not
the Leased Premises or any part thereof be relet, Tenant shall pay the Landlord
the rent and all other charges required to be paid by Tenant up to the time of
the expiration of this Lease or such recovered possession, as the case may be
and thereafter, Tenant, if required by Landlord, shall pay to Landlord until
the end of the term of this Lease, the equivalent of the amount of all rent
reserved herein and all other charges required to be paid by Tenant, less the
net amount received by Landlord for such reletting, if any, unless waived by
written notice from Landlord to Tenant. No action by Landlord to obtain
possession of the Leased Premises and/or to recover any amount due to Landlord
hereunder shall be taken as a waiver of Landlord's right to require full and
complete performance by Tenant of all terms hereof, including payment of all
amounts due hereunder or as an election on the part of Landlord to terminate
this Lease Agreement. If the Leased Premises shall be reoccupied by Landlord,
then, from and after the date of repossession, Tenant shall be discharged of
any obligations to Landlord under the provisions hereof for the payment of
rent. If the Leased Premises are reoccupied by the Landlord pursuant hereto,
and regardless of whether the Leased Premises shall be relet or possessed by
Landlord, all fixtures, additions, furniture, and the like then on the Leased
Premises, excluding any equipment, fixtures, and furniture that Tenant may be
leasing from a third party, may be retained by Landlord. In the event Tenant
is in default under the terms hereof and, by the sole determination of
Landlord, has abandoned the Leased Premises, Landlord shall have the right to
remove all the Tenant's property from the Leased Premises and dispose of said
property in such a manner as determined best by Landlord, at the sole cost and
expense of Tenant and without liability of Landlord for the actions so taken.
B. In the event an assignment of Tenant's business or
property shall be made for the benefit of creditors, or, if the Tenant's
leasehold interest under the terms of this Lease Agreement shall be levied upon
by execution or seized by virtue of any writ of any court of law, or, if
application be made for the appointment of a receiver for the business or
property of Tenant, or, if a petition in bankruptcy shall be filed by or
against Tenant, then and in any such case, at Landlord's option, with or
without notice, Landlord may terminate this Lease and immediately retake
possession of the Leased Premises without the same working any forfeiture of
the obligations of Tenant hereunder.
C. [Omitted because stricken by parties.]
D. In addition to remedy granted to Landlord by the terms
hereof, Landlord shall have available any and all rights and remedies available
under the statutes of the State of Colorado. No remedy herein or otherwise
conferred upon or reserved to Landlord shall be considered exclusive of any
other remedy but shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing at law or in equity or by
statute. Further, all powers and remedies given by this Lease to Landlord may
be exercised, from time to time, and as often as occasion may arise or as may
be deemed expedient. No delay or omission of Landlord to exercise any right or
power arising from any default shall impair any such right or power or shall be
considered to be a waiver of any such default or acquiescence thereof. The
acceptance of rent by Landlord shall not be deemed to be a waiver of any breach
of any of the covenants herein contained or of any of the rights of Landlord to
any remedies herein given.
E. If Tenant shall, for any reason, vacate the Leased
Premises before the current expiration date, landlord shall have the right to
accelerate rental payments and any and all future rent payments due during the
course of the Lease Term shall become immediately payable in full to the
Landlord.
39. Legal Proceedings-Responsibilities. In the event of proceeding
at law or in equity by either party hereto, the defaulting party shall pay all
costs and expenses, including all reasonable attorney's fees incurred by the
non-defaulting party in pursuing such remedy, if such non-defaulting party is
awarded substantially the relief requested.
40. Administrative Charges. In the event any check, bank draft or
negotiable instrument given for any money payment hereunder shall be dishonored
at any time and from time to time, for any reason whatsoever not attributable
to Landlord, Landlord shall be entitled, in addition to any other remedy that
may be available, (1) to make an administrative charge of $100.00 or three
times the face value of the check, bank draft or negotiable instrument,
whichever is smaller, and (2) at Landlord's sole option, to require Tenant to
make all future rental payments in cash or cashiers check.
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41. Hazardous Materials and Environmental Considerations.
A. Tenant covenants and agrees that Tenant and its agents,
employees, contractors and invitees shall comply with all Hazardous Materials
Laws (as hereinafter defined). Without limiting the foregoing, Tenant
covenants and agrees that it will not use, generate, store or dispose of, nor
permit the use, generation, storage or disposal of Hazardous Materials (as
hereinafter defined) on, under or about the Leased Premises, nor will it
transport or permit the transportation of Hazardous Materials to or form the
Leased Premises, except in full compliance with any applicable Hazardous
Materials Laws. Any Hazardous Materials located on the Leased Premises shall
be handled in an appropriately controlled environment which shall include the
use of such equipment (at Tenant's expense) as is necessary to meet or exceed
standards imposed by any Hazardous Materials Laws and in such a way as not to
interfere with any other tenant's use of its premises. Upon breach of any
covenant contained herein, Tenant shall, at Tenant's sole expense, cure such
breach by taking all action prescribed by any applicable Hazardous Materials
Laws or by any governmental authority with jurisdiction over such matters.
B. Tenant shall inform Landlord at any time of (i) any
Hazardous Materials it intends to use, generate, handle, store or dispose of,
on or about or transport from, the Leased Premises and (ii) of Tenant's
discovery of any event or condition which constitutes a violation of any
applicable Hazardous Materials Laws. Tenant shall provide to Landlord copies
of all communications to or from any governmental authority or any other party
relating to Hazardous Materials affecting the Leased Premises.
C. Tenant shall indemnify and hold Landlord harmless from any
and all claims, judgments, damages, penalties, fines, costs, liabilities,
expenses or losses (including, without limitation, diminution on value of the
Leased Premises, damages for loss or restriction on use of all or part of the
Leased Premises, sums paid in settlement of claims, investigation of site
conditions, or any cleanup, removal or restoration work required by any
federal, state or local governmental agency, attorney's fees, consultant fees,
and expert fees) which arise as a result of or in connection with any breach of
the foregoing covenants or any other violation of any Hazardous Materials laws
by Tenant. The indemnification contained herein shall also accrue to the
benefit of the employees, agents, officers, directors and/or partners of
Landlord.
D. Upon termination of this Lease and/or vacation of the
Leased Premises, Tenant shall properly remove all Hazardous Materials and shall
then provide to Landlord a Phase I environmental audit report, prepared by a
professional consultant satisfactory to Landlord and at Tenant's sole expense,
certifying that the Leased Premises have not been subjected to environmental
harm caused by Tenant's use and occupancy of the Leased Premises. Landlord
shall grant to Tenant and its agents or contractors such access to the Leased
Premises as is necessary to accomplish such removal and prepare such report.
E. "Hazardous Materials" shall mean (a) any chemical,
material, substance or pollutant which poses a hazard to the Leased Premises or
to persons on or about the Leased Premises or would cause a violation of or is
regulated by any Hazardous Materials Laws, and (b) any chemical, material or
substance defined as or included in the definitions of "hazardous substances",
"hazardous wastes", "extremely hazardous waste", "restricted hazardous waste",
"toxic substances", "regulated substance", or words of similar import under any
applicable federal, state or local law or under the regulations adopted or
publications promulgated pursuant thereto, including, but not limited to, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended, 42 U.S.C. Sec. 9601, et seq.; the Hazardous Materials
Transportation Act, as amended, 49 U.S.C. Sec. 1801, et seq.; the Resource
Conservation and Recovery Act as amended, 42 U.S.C. Sec 6901, et seq.; the
Solid Waste Disposal Act, 42 U.S.C. Sec. 6991 et seq.; the Federal Water
Pollution Control Act, as amended, 33 U.S.C. Sec. 1251, et seq.; and Sections
00-00-000, et seq., 25-16- 101, et seq., 25-7-101, et seq., and 25-8-101, et
seq., of the Colorado Revised Statutes. "Hazardous Materials Laws" shall mean
any federal state or local laws, ordinances, rules, regulations, or policies
(including, but not limited to, those laws specified above) relating to the
environment, health and safety or the use, handling, transportation,
production, disposal, discharge or storage of Hazardous Materials, or to
industrial hygiene or the environmental conditions on, under or about the
Leased Premises. Said term shall be deemed to include all such laws as are now
in effect or as hereafter amended and all other such laws as may hereafter be
enacted or adopted during the term of this Lease.
F. All obligations of Tenant hereunder shall survive and
continue after the expiration of this Lease or its earlier termination for any
reason.
G. Tenant further covenants and agrees that it shall not
install any storage tank (whether above or below the ground) on the Leased
Premises without obtaining the prior written consent of the Landlord, which
consent may be conditioned upon further requirements imposed by Landlord with
respect to, among other things, compliance by Tenant with any applicable laws,
rules, regulations
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or ordinances and safety measures or financial responsibility requirements.
H. Should any local governmental entity having jurisdiction
over the Leased Premises require any type of environmental audit or report
prior to or during the occupancy of the Leased Premises by the Tenant, such
cost of the audit or report shall be the sole responsibility of the Tenant.
I. Notwithstanding anything to the contrary contained in this
Paragraph 41, Tenant shall not be responsible for any conditions which existed
prior to its tenancy, nor shall it be responsible if conditions which are
determined not to be caused by action or inaction of Tenant.
42. Entire Agreement. It is expressly understood and agree by and
between the parties hereto that this Lease sets forth all the promises,
agreements, conditions, and understandings between Landlord and/or its agents
and Tenant relative to the Leased Premises and that there are no promises,
agreements, conditions, or understandings either oral or written, between them
other than that are herein set forth.
43. [Omitted because stricken by parties.]
44. Estoppel Certificates. Within no more than 5 days after receipt
of written request, the Tenant shall furnish to the owner a certificate, duly
acknowledged, certifying, to the extent true:
A. That this Lease is in full force and effect.
B. That the Tenant knows of no default hereunder on the part of the
owner, or if it has reason to believe that such a default exists,
the nature thereof in reasonable detail.
C. The amount of the rent being paid and the last date to which rent
has been paid.
D. That this Lease has not been modified, or if it has been modified,
the terms and dates of such modifications.
E. That the term of this Lease has commenced.
F. The commencement and expiration dates.
G. Whether all work to be performed by the owner has been completed.
H. Whether the renewal term option has been exercised if applicable.
I. Whether there exist any claims or deductions from, or defenses to,
the payment of rent.
J. Such other matters as may be reasonably requested by owner.
If the Tenant fails to execute and deliver to the owner a completed certificate
as required under this section, the Tenant hereby appoints the owner as its
Attorney-In-Fact to execute and deliver such certificate for and on behalf of
the Tenant.
45. Financial Statements. As requested by the Landlord, Tenant shall
provide copies of its most recent financial statements and shall also provide
Landlord with up to three (3) prior years of financial statements, if so
requested.
46. Lease Exhibits Attached. This Lease includes the following Lease
Exhibits which are incorporated herein and made a part of this Lease Agreement:
Exhibit "A" - Site Plan Depicting Area
Exhibit "B" - Interior Space Plan
Exhibit "C" - Landlord and Tenant's Construction Obligations
Exhibit "D" - [Omitted because stricken by parties.]
Exhibit "E" - Additional Terms and Conditions
Exhibit "F" - Option to Renew
Exhibit "G" - Landlord's Waiver
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47. Miscellaneous. All marginal notations and paragraph headings are
for purposes of reference and shall not affect the true meaning and intent of
the terms hereof. Throughout this Lease, wherever the words "Landlord" and
"Tenant" are used they shall include and imply to the singular, plural, persons
both male and female, companies, partnerships and corporations, and in reading
said Lease, the necessary grammatical changes required to make the provisions
hereof mean and apply as aforesaid shall be made in the same manner as though
originally included in said Lease.
IN WITNESS WHEREOF, the parties have executed this Lease as of the date hereof.
LANDLORD: SHARP POINT PROPERTIES, LLC
---------------------------------------------
By:
---------------------------------------------------
XXXXXX X. XXX
TENANT: PARAVAX, INC.
-----------------------------------------------
By:
---------------------------------------------------
XXXXXX X. XXXX, C.E.O/PRESIDENT
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ENVIRONMENTAL INDEMNITY AGREEMENT
THIS INDEMNITY is given as of this 8th day of March , 1994, by Paravax,
Inc. ("Indemnitor," whether one or more), to and for the benefit of Paravax,
Inc. ("Landlord").
WHEREAS, Sharp Point Properties, LLC is Landlord under a proposed
Lease Agreement dated Xxxxx 0, 0000, ("xxx Lease") in which Paravax , a
California Corporation is the proposed tenant ("Tenant"), regarding the
Leased Premises commonly known as 0000 Xxxxx Xxxxx Xxxxx, Xxxx Xxxxxxx, XX
00000 ("Leased Premises"); and
WHEREAS, Landlord is unwilling to enter into the Lease with Tenant
unless the Indemnitor agrees to the indemnities hereinafter provided.
NOW, THEREFORE, in consideration of the matters recited above and to
induce Landlord to enter into the Lease with Tenant, Indemnitor undertakes and
agrees as follows:
1. Indemnitor shall indemnify, defend and hold Landlord harmless from
and against any and all suits, actions, legal or administrative proceedings,
demands, claims, judgements, damages, penalties, fines, costs, liabilities,
expenses or losses which arise during or after the lease term as a result of or
in connection with the presence, use, storage, disposal, transportation by
Tenant, its agents, employees or contractors or discharge, by or on behalf of
Tenant, of any Hazardous Materials (as defined in the Lease) on, in or under or
affecting all or any portion of the Leased Premises or any surrounding areas,
or the disposition or transportation of any Hazardous Materials therefrom, or
any breach by Tenant of the provisions concerning Environmental Considerations
as contained in paragraph 41 of the Lease, or the failure of the Tenant to
comply with any applicable Hazardous Materials Laws (as defined in the Lease)
with regard to the storage, use, handling, including transportation, or
disposal of any Hazardous Material by Tenant, its agents, employees or
contractors, or otherwise resulting from or arising out of any action or
non-action of Tenant or Tenant's operations on the Leased Premises in
violations of the terms of this Lease.
Without limiting the generality of the foregoing, it is expressly
agreed by Indemnitor that such indemnity shall also include the following to
the extent attributable to the storage, use, handling or disposal, including
transportation, of any Hazardous Material by Tenant, its agents, employees or
contractors: diminution in value of the Leased Premises, damages for loss or
restriction on use of rental or useable space or any amenity of the Leased
Premises, damages arising from any adverse impact on marketing of space or
delay in delivering possession to a subsequent tenant or purchaser, restoration
of the Leased Premises to a condition not materially different from its
original contour, appearance and condition; costs incurred in connection with
any investigation of site conditions or any clean-up, remedial, removal or
restoration work required by any federal, state or local governmental agency,
political subdivision, court order or lender of the Landlord; costs of removal
and lawful disposal off site of all Hazardous Materials; all sums paid in
settlement of claims, attorneys' fees, consultant fees and expert fees.
The foregoing indemnities shall survive termination or expiration of
the Lease and shall also accrue to the benefit of the employees, agents,
officers, directors and/or partners of Landlord.
2. Indemnitor agrees to pay to Landlord, from time to time,upon
demand therefor, an amount equal to any and all expenses therefore incurred by
Landlord for which Landlord is entitled to indemnification. Any sums not so
paid shall thereafter bear interest at a rate of two percent (2%) per month
until paid in full.
3. The rights and remedies of Landlord under this indemnity shall be
in addition to any rights or remedies available to Landlord under the terms of
the Lease. The obligations of Indemnitor hereunder shall not be affected or
impaired by: (i) the assertion by Landlord against Tenant of any rights or
remedies reserved to Landlord pursuant to provisions of the Lease; (ii) the
commencement of summary or any other proceedings against Tenant; (iii) failure
of the Landlord to enforce any of its rights against Tenant pursuant to the
Lease or otherwise; (iv) the granting by Landlord of any extensions of time to
Tenant; (v) the assignment or transfer of the Lease by Tenant; (vi) with
release or discharge of Tenant from its obligations under the Lease in any
creditors', receivership, bankruptcy or other proceedings or the commencement
or pendency of any such proceedings; or (vii) the impairment, limitation or
modification of the liability of Tenant or the estate of Tenant in bankruptcy,
or of any remedy for the enforcement of tenant's liability under the Lease,
resulting from the operation of any present or future bankruptcy code or other
statute, or from the decision of any court.
4. Until all Tenant's obligations under the Lease are fully
performed, Indemnitor (i) waives any right of subrogation which it might have
against Tenant
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by reason of any payments or acts of performance by Indemnitor pursuant to its
obligations hereunder; (ii) waives any other right which Indemnitor may have
against Tenant by reason of any one or more payments or acts in compliance with
its obligations hereunder; and (iii) subordinates any liability or indebtedness
of tenant held by Indemnitor to the obligations of Tenant to Landlord under the
Lease.
5. All notices for or allowed hereunder shall be deemed given and
received with (a) personally delivered, or (b) at the time the same is
deposited in the United States mail, postage prepaid, first class mail, or
addressed to the applicable party at the address indicated below for such
party, or as to each party, at such other address as shall be designated by
such party in a written notice to the other party:
If to Indemnitor, to:
Paravax, Inc.
Xxxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
If to Landlord, to:
Sharp Point Properties, LLC
Pearl Xxxx Xxxxxx #000
XX 00000
6. In the event of default in its obligations hereunder, Indemnitor
agrees to reimburse Landlord for reasonable attorneys' fees and costs incurred
by Landlord in the enforcement of such obligations.
7. This Environmental Indemnity Agreement shall apply to the Lease
and any extension or renewal thereof, and any holdover term following the term
thereof, or any such extension or renewal.
8. This Environmental Indemnity Agreement shall be governed by and
construed in accordance with the laws of the State of Colorado.
9. The covenants and agreements herein contained shall extend to and
be binding upon the parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this
Environmental Indemnity Agreement on the day and year first above written.
/s/ PARAVAX -- XXXXXX X. XXXX
-------------------------------------------
"Indemnitor"
/s/ XXXXXX X. XXX
-------------------------------------------
"Landlord"
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EXHIBIT "A"
[MAP]
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EXHIBIT "B"
INTERIOR SPACE PLAN
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EXHIBIT "C"
LANDLORD AND TENANT'S CONSTRUCTION OBLIGATIONS
Landlord shall, at no additional cost to Tenant, provide improvements to the
Premises as shown and described on Exhibit B.
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EXHIBIT "E"
ADDITIONAL TERMS AND CONDITIONS
I. This Lease is contingent upon approval of Paravax, Inc. Board of
Directors on March 21, 1994
II. This Lease is contingent upon Landlord signing a lease with Advanced
Energy Industries, Inc. on March 16, 1994 for the building located at
0000 Xxxxx Xxxxx Xxxxx.
III. Landlord agrees to sign a waiver of lien on equipment currently leased
by Tenant from third parties and from time to time on future equipment
that Tenant may lease from third parties. The form utilized for this
purpose shall be mutually agreed upon by Landlord and Tenant.
IV. Landlord agrees that with the exception of two (2) fume hoods and two
(2) sections of work bench, Tenant may, at no additional cost, use all
laboratory equipment now located at 0000 Xxxxx Xxxxx Xxxxx. It is,
however, expressly understood that Tenant shall be responsible for
payment for removal, moving, and reinstallation of such equipment.
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EXHIBIT "F"
Option to Extend
Tenant shall have the option to extend the Lease Agreement from 12:00 noon on
9/1/2004 to 12:00 noon on 9/1/2009. In the event the Tenant desires to
exercise said option, Tenant shall give written notice of such exercise to
Landlord not later than 9/1/2003. See below for Option Term Rent. In the event
of such exercise, the Lease Agreement, including all amendments, shall be
automatically extended for the additional term. Notwithstanding the foregoing,
this option shall be void and of no force or effect if the Tenant is in default
hereunder either as of the date of the Tenant's exercise of said option or as
of the date of the commencement of the option or additional term.
Option Term Rent: Tenant shall pay the following rent for the Leased Premises:
Landlord and Tenant will attempt to agree upon a Fair Market Rental Value of
the Leased Premises satisfactory to both parties within thirty (30) days of
Tenant's exercise of its option. If no agreement can be reached by the parties
during that period, then the Base Monthly Rental for the Option Term shall be
determined by the Fair Market Rental Value of the Leased Premises as determined
by comparison to premises of similar size located in or near the City of
Boulder, Colorado, having comparable development, use and density capability
and such other characteristics as may be deemed relevant by a subject appraiser
whose selection is outlined herein.
Landlord shall select an independent MAI real estate appraiser with at least
ten (10) years experience in appraising commercial real property in the City of
Boulder, Colorado (a "Qualified Appraiser"). The Qualified Appraiser selected
by the Landlord shall be referred to as the "Landlord's Appraiser". Within
thirty (30) days of being selected by the Landlord, the Landlord's Appraiser
shall determine the Fair Market Rental Value of the Leased Premises in
accordance with the appraisal standards set forth above and shall immediately
give the Landlord and the Tenant written notification of his determination.
If the Tenant agrees with the Landlord's Appraiser's determination of the Fair
Market Rental Value, the new Base Monthly Rental shall become effective
beginning with the first month of the Option Term. If the Tenant does not
agree with the Landlord's Appraiser's determination of Fair Market Rental
Value, the Tenant shall have the right to select its own Qualified Appraiser to
determine the Fair Market Rental Value. If the Tenant does elect to appoint a
Qualified Appraiser (the "Tenant's Appraiser"), the Tenant shall select the
Tenant's Appraiser within thirty (30) business days after receiving the
Landlord's Appraiser's determination of the Fair Market Rental Value. The
Tenant's Appraiser shall make his own determination of the Fair Market Rental
Value in accordance with the provisions set forth above, within 30 business
days of being selected by the Tenant and shall immediately give the Landlord
and the Tenant written notice of his determination.
If the Fair Market Rental Value as determined by the Landlord's Appraiser and
the Tenant's Appraiser, respectively, differ by an amount which is equal to or
less than 5% of the Fair Market Rental Value determined by the Landlord's
Appraiser, then the arithmetic mean of the two Fair Market Rental Values shall
constitute the Fair Market Rental Value used to calculate the new Base Monthly
Rental which will in effect for the Option Term. If the Fair Market Rental
Value determined by the Landlord's Appraiser and the Tenant's Appraiser,
respectively, differ by an amount which is greater than 5% then, within ten
(10) business days after the Landlord's Appraiser and the Tenant's Appraiser's
determination of the Fair Market Rental Value, the Landlord's Appraiser and the
Tenant's Appraiser shall agree upon and select a third Qualified Appraiser who
shall be independent of and have no prior or existing affiliation or
relationship with either the Landlord or the Tenant (the "Independent
Appraiser"). Within ten (10) business days of being appointed, the Independent
Appraiser shall, after exercising his best professional judgement, choose
either the Landlord's Appraiser's or the Tenant's Appraiser's determination of
Fair Market Rental Value which the Independent Appraiser believes, in his best
professional judgement, best represents the Fair Market Rental Value at that
point in time. Upon making such a selection, the Independent Appraiser shall
immediately give the Landlord and the Tenant written notice of this selection
of the Fair Market Rental Value. The Fair Market Rental Value selected by the
Independent Appraiser shall be used to calculate the new Base Monthly Rental
which will be in effect during the Extension Option, and such selection by the
Independent Appraiser shall be binding and conclusive upon the Landlord and the
Tenant.
All appraisal fees required hereunder shall be shared equally by the Landlord
and the Tenant.
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EXHIBIT "G"
LANDLORD'S WAIVER
Sharp Point Properties, LLC ("Landlord") is the owner of real property commonly
known as 0000 Xxxxx Xxxxx Xxxxx, Xxxx Xxxxxxx, XX 00000, (the "Premises") and
has leased the Premises to Paravax, Inc., ("Tenant").
1. Landlord acknowledges that it has received notice that Tenant
has or will enter into a master lease agreement with Dominion
Ventures, Inc., a California Corporation ("Dominion"), whereby
Tenant will lease from Dominion certain equipment (the
"Equipment"), all or part of which may be located upon for
fixed to the Premises.
2. Landlord waives and releases any and all rights it may have
against the Equipment for any rent or other sums due or to
become due, under any lease for the Premises or otherwise, and
all claims and demands of every kind against the Equipment.
3. Landlord agrees that the Equipment will remain personal
property and will not become part of the Premises, regardless
of the manner in which it may be affixed to real property, and
will allow Dominion to enter the Premises any time to remove
the Equipment in the exercise of its rights and remedies
arising under the aforesaid master lease agreement.
4. This Consent shall be binding upon heirs, administrators,
executors, successors and assigns of the Landlord, and shall
insure to the benefit of the successors and assigns of
Dominion.
IN WITNESS WHEREOF, the undersigned has executed and delivered this consent
this 8th day of March, 1994.
By: --------------------------------------
XXXXXX X. XXX
VICE PRESIDENT & CEO
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