COMMERCIAL-INDUSTRIAL LEASE
1. PARTIES. This lease, dated, this 11th day of January, 1996, made by and
between Life Investors Insurance Company of America, by AEGON USA Realty
Management, Inc., its authorized agent as agent for the owner of the
premises (herein called "Lessor") and Image Guided Technologies, Inc., a
Colorado Corporation (herein called "Lessee").
2. PREMISES. In consideration of the rents, covenants and agreements
hereinafter reserved and contained on the part of the Lessee to be observed
and performed, Lessor hereby leases to Lessee and Lessee hereby rents from
Lessor, those certain premises (herein the "Premises") consisting of a space
having measurements of approximately feet in width and feet
in depth, totaling 12,844 square feet, as designated on the plan attached
hereto as Exhibit "A", now or hereafter constructed in the Gemini II
Building, Suite 5710, first floor located in the city of Boulder, County
Boulder, State of Colorado and more particularly described on Exhibit "B"
attached hereto, for the term and upon the conditions and agreements
hereinafter set forth, and Lessor and Lessee hereby agree as follows:
3. TERM.
3.1 TERM. The term of this Lease shall be for Three (3) years
commencing on February 1, 1996 and ending on January 31, 1999 unless
sooner terminated pursuant to any provision hereof.
3.2 DELAY IN COMMENCEMENT. Notwithstanding said commencement date, if for
any reason Lessor cannot deliver possession of the Premises to Lessee on said
date, Lessor shall not be subject to any liability therefor, nor shall failure
affect the validity of this Lease or the obligations of Lessee hereunder or
extend the term hereof, but in such case Lessee shall not be obligated to pay
rent until possession of the Premises is tendered to Lessee; provided, however,
that if Lessor shall not have delivered possession of the Premises within sixty
(60) days from said commencement date, Lessee may, at Lessee's option, by notice
in writing to Lessor within ten (10) days thereafter, cancel this Lease, in
which event the parties shall be discharged from all obligations hereunder. If
Lessee occupies the Premises prior to said commencement date, such occupancy
shall be subject to all provisions hereof; such occupancy shall not advance the
termination date, and Lessee shall pay rent for such period at the initial
monthly rates set forth below. If Lessor, by reason outside the reasonable
control of Lessor, cannot deliver said premises within ninety (90) days from
said commencement date, Lessor may, at Lessor's option, by notice in writing
within ten (10) days thereafter, cancel this Lease.
4. RENT. Lessee shall pay Lessor, without any prior demand therefor and
without any right of deduction or set-off whatsoever, a monthly rental of
****See Rider**** ($ ), in advance, upon the first day of
each calendar month for each and every month of the Lease. The Lessee further
agrees to pay, in addition to the rent as provided herein, all privilege,
sales, excise, and other taxes (except income taxes) imposed by State,
Federal, or municipal authorities upon the rentals herein provided to be paid
by the Lessee to the Lessor. Said payment shall be in addition to and
accompanying each rental payment made by Lessee to Lessor.
Rent for any period during the term hereof which is for less than one month
shall be a pro rata portion of the monthly installment. Rent shall be payable to
Lessor at the address stated herein or to such other persons or at such other
places as Lessor may designate in writing. The rent due under terms of this
Paragraph may be modified by Paragraph Eleven (11) below.
5. SECURITY DEPOSIT. Lessee shall deposit with Lessor, upon execution
hereof, $12,000.00 as security for Lessee's faithful performance of Lessee's
obligations hereunder. If Lessee fails to pay rent or other charges due
hereunder or otherwise defaults with respect to any provision of this Lease,
Lessor may use, apply, or retain all or any portion of said deposit for the
payment of any rent or other charge in default or for the payment of any
other sum to which Lessor may become obligated by reason of Lessee's default,
or to compensate Lessor for any loss or damage which Lessor may suffer
thereby. If Lessor so uses or applies all of or any portion of said deposit,
Lessee shall, within ten (10) days after written demand therefor, deposit
cash with Lessor in an amount sufficient to restore said deposit to the full
amount hereinabove stated, and Lessee's failure to do so shall be a material
breach of this Lease. Lessor shall not be required to keep said deposit
separate from its general accounts. If Lessee performs all of Lessee's
obligations hereunder, said deposit, or so much thereof as has not
theretofore been applied by Lessor, shall be returned, without payment of
interest or other increment for its use; to Lessee (or, at Lessor's option,
to the last assignee, if any , of Lessee's interest hereunder) at the
expiration of the term hereof, as it may be altered or amended and after
Lessee has vacated the Premises.
6. USE
6.1 USE. The Premises shall be used and occupied only for general office
use, electronic R&D and manufacturing and Lessee shall not use or occupy the
Premises or permit the same to be used for any other purpose.
6.2 COMPLIANCE WITH LAW. Lessee shall, at Lessee's expense, comply
promptly with all applicable statutes, ordinances, rules, regulations, orders
and requirements in effect during the term or any part of the term hereof
regulating the use by Lessee of the Premises. Lessee shall not use or permit
the use of the Premises in any manner that will tend to create waste or a
nuisance or, if there shall be more than one tenant of the building
containing the Premises, which shall tend to disturb such other tenants.
6.3 CONDITION OF PREMISES. Lessee hereby accepts the Premises in their
condition existing as of the date of the execution hereof, subject to all
applicable zoning, municipal, county and state laws, ordinances and regulations
governing and regulating the use of the Premises, and accepts this Lease subject
thereto and to all matters disclosed thereby and by any exhibits attached
hereto. Lessee acknowledges that neither Lessor nor Lessor's agent has made any
representation or warranty as to the suitability of the Premises for the conduct
of Lessee's business.
7. MAINTENANCE, REPAIRS AND ALTERATIONS.
7.1 LESSOR'S OBLIGATIONS. Subject to the provisions of Paragraph 9 and
except for damage caused by any negligent or intentional act or omission of
Lessee, Lessee's agents, employees or invitees, Lessor, at Lessor's expense,
shall keep in good order, condition and repair the foundations, exterior
walls and the exterior roof of the Premises. The Lessee shall give the Lessor
prompt notice of any defects or breakage in the structure, equipment, fixture
or of any unsafe conditions upon or within the Premises. Lessee expressly
waives the benefits of any statute now or hereafter in effect which would
otherwise afford Lessee the right to make repairs at Lessor's expense or to
terminate this Lease because of Lessor's failure to keep the Premises in good
order, condition and repair.
7.2 LESSEE'S OBLIGATIONS.
(a) Lessee shall, at its expense throughout the term of this Lease,
maintain, service, replace and keep in good repair the interior structures and
mechanical equipment, including such items as floors, ceilings, walls, doors,
glass, plumbing, painting, heating and cooling equipment, air conditioning,
partitions, electrical and electrical fixtures, and surrender same upon the
expiration of the term herein or renewal thereof in the same condition as
received, ordinary wear and use excepted.
(b) On the last day of the term hereof, or on any sooner termination,
Lessee shall surrender the Premises to Lessor in the same condition as received,
broom clean, ordinary wear and tear excepted. Lessee shall repair any damage to
the Premises occasioned by the removal of its trade fixtures, furnishings and
equipment pursuant to Paragraph 7.3 which repair shall include the patching and
filling of holes and repair of structural damage.
7.3 ALTERATIONS AND ADDITIONS.
(a) Alterations may not be made to the Premises without the prior
written consent of the Lessor, and any alterations of the Premises, excepting
movable furniture and machinery and trade fixtures, shall become part of the
realty and belong to the Lessor upon termination of this Lease. However, this
shall not prevent the Lessee from installing trade fixtures, machinery or
other trade equipment in conformance with the local ordinances, provided the
Premises are not damaged by the removal thereof. The Lessee shall keep the
Premises, the building and the property in which the Premises are situated
free from any liens arising out of any work performed for, material furnished
to or obligations incurred by the Lessee. It is further understood and agreed
that under no circumstance is the Lessee to be deemed the agent of the Lessor
for any alteration, repair or operation of the building upon the Premises,
the same being done at the sole expense of the Lessee, and all contractors,
materialmen, mechanics and laborers are hereby charged with notice that they
must look to the Lessee only for the payment of any charge for work done and
materials furnished upon the Premises during the term of this Lease.
(b) Lessor shall have the right to require removal of alterations and
additions but absent such demand, all improvements, additions and utility
installations, except trade fixtures and machines, shall remain the property of
Lessor.
8. INSURANCE; INDEMNITY.
8.1 LIABILITY INSURANCE. Lessee shall, at Lessee's expense, obtain and
keep in force during the term of this Lease a policy of comprehensive public
liability insurance insuring Lessor and Lessee against any liability arising
out of the ownership, use, occupancy, or maintenance of the Premises and all
areas appurtenant thereto. Such insurance shall be in an amount of not less
than $100,000 for injury to or death of one person in any one accident or
occurrence and in an amount of not less than $300,000 for injury to or death
of more than one person in any one accident or occurrence. Such insurance
shall further insure Lessor and Lessee against liability for property damage
of at least $50,000. The limits
of said insurance shall not, however, limit the liability of Lessee hereunder.
In the event that the Premises constitute a part of a larger property, said
insurance shall have a Lessor's Protective Liability endorsement attached
thereto. If Lessee shall fail to procure and maintain said insurance, Lessor
may, but shall not be required to, procure and maintain the same, but at the
expense of Lessee.
8.2 INSURANCE POLICIES. Insurance required hereunder shall be in
companies rated AAA or better in "Best's Insurance Guide." Lessee shall
deliver to Lessor copies of policies of liability insurance required under
Paragraph 8.1 or certificates evidencing the existence and amounts of such
insurance with loss payable clauses satisfactory to Lessor. No such policy
shall be cancellable or subject to reduction of coverage or other
modification except after the expiration of such policies at which time
Lessee must furnish Lessor with renewals or "binders" thereof, or Lessor may
order such insurance and charge the cost thereof to Lessee which amount shall
be payable by Lessee upon demand. Lessee shall not do or permit to be done
anything which shall invalidate the insurance policies referred to in
Paragraph 8.3.
8.3 PROPERTY INSURANCE. Lessor shall obtain and keep in force during the
term of this Lease a policy or policies of insurance covering loss or damage to
the Premises in the amount of the full replacement value thereof, providing
protection against all perils included within the classification of fire,
extended coverage, vandalism, malicious mischief and special extended perils
(all risk).
8.4 WAIVER OF SUBROGATION. Lessee and Lessor each hereby waives any and
all rights of recovery against the other or against the officers, employees,
agents and representatives of the other for loss of or damage to such waiving
party or its property or the property of others under its control, where such
loss or damage is insured under any insurance policy in force at the time of
such loss or damage. Lessee and Lessor shall, upon obtaining the policies of
insurance required hereunder, give notice to the insurance carrier or carriers
that the foregoing mutual waiver of subrogation is contained in this Lease.
8.5 INDEMNITY. Lessee shall indemnify and hold harmless Lessor from and
against any and all claims arising from Lessee's use of the Premises or from
the conduct of Lessee's business or from any activity, work, or things done,
permitted or suffered by Lessee in or about the Premises or elsewhere, and
shall further indemnify and hold harmless Lessor from and against any and all
claims arising from any breach or default in the performance of any
obligation on Lessee's part to be performed under the terms of this Lease or
arising from any negligence of the Lessee or any of the Lessee's agents,
contractors or employees, and from and against all costs, attorney's fees,
expenses and liabilities incurred in the defense of any such claim or any
action or proceeding brought thereon and in case any action or proceeding be
brought against Lessor by reason of any such claim. Lessee, upon written
notice from Lessor, shall defend the same at Lessee's expense with counsel
satisfactory to Lessor. Lessee, as a material part of the consideration to
Lessor, hereby assumes all risk of damage to property or injury to persons
in, upon or about the Premises arising from any cause and Lessee hereby
waives all claims in respect thereof against Lessor.
8.6 EXEMPTION OF LESSOR FROM LIABILITY. Lessee hereby agrees that Lessor
shall not be liable for injury to Lessee's business or for any loss of income
therefrom or for damage to the goods, wares, merchandise or other property of
Lessee, Lessee's employees, invitees, customers or any other person in or about
the Premises, nor shall Lessor be liable for injury to the person of Lessee,
Lessee's employees, agents or contractors, whether such damage or injury is
caused by or results from fire, steam, electricity, gas, water or rain, or from
the breakage, leakage, construction or other defects of pipes, sprinklers,
wires, appliances, plumbing, air conditioning or light fixtures or from any
other cause whether the said damage or injury results from conditions arising
upon the Premises or upon other portions of the building of which the Premises
are a part or from other sources or places, and regardless of whether the cause
of such damage or injury or the means of repairing the same is inaccessible to
Lessee. Lessor shall not be liable for any damages arising from any act or
neglect of any other tenant, occupant, if any, of the building in which the
Premises are located. It shall be the sole obligation of Lessee to insure its
property, trade fixtures and equipment located on the Premises from any and all
loss or damage.
9. DAMAGE OR DESTRUCTION.
9.1 DAMAGE OR DESTRUCTION. If, during the term of this Lease or extension
thereof, all or part of the building or structures now or hereafter located upon
the Premises should be destroyed partially or totally by fire or other casualty,
this Lease shall continue thereafter in full force and effect except as
hereinafter provided, and the Lessor may cause the reconstruction of said
building within 180 days following such destruction to substantially the same
condition in which it did exist at the time immediately preceding such
destruction. The Lessee's obligation to pay rental to the Lessor hereunder shall
abate from the date of such destruction until completion of such reconstruction,
and the terms hereof shall be automatically extended for a period of time
equivalent to that during which rent is abated as aforesaid. In the event the
Lessor does not commence reconstruction, repair or replacement of the
improvements within 60 days after loss or damage, this Lease shall be deemed
terminated and of no further force or effect.
9.2 ABATEMENT OF RENT: LESSEE'S REMEDIES. Except for abatement of rent, if
any, Lessee shall have no claim against Lessor for any damage suffered by reason
of any such damage, destruction, repair or restoration.
10. REAL PROPERTY TAXES.
10.1 PAYMENT OF TAX. Lessor shall pay all real property taxes applicable
to the Premises; provided, however, that Lessee shall pay, as Additional Rent,
its prorata share of all taxes and assessments levied and passed upon the real
property of which the Premises are a part during the Lease Term hereof. Such
payment shall be made by Lessee within thirty (30) days after receipt of
Lessor's written statement setting forth the payment due and the reasonable
computation thereof. If the Lease Term shall not expire concurrently with the
expiration of the tax fiscal year, Lessee's liability for taxes for the last
partial Lease Year shall be prorated on an annual basis. For purposes of this
Paragraph and otherwise in this Lease, "Taxes" shall mean real estate taxes,
assessments (whether general or special), sewer rents, rates and charges,
transit taxes, taxes based on the receipt of rent, and any other federal, state
or local government charge, general, special, ordinary or extraordinary, that
may now or hereafter be levied or assessed against the Building(s) of which the
Premises are a part, or the land on which the Building(s) stands.
10.2 LESSEE'S "PROPORTIONATE SHARE" OF REAL PROPERTY TAX. Lessee's
"ProRata Share" shall mean a fraction, the numerator of which shall be the
number of square feet in the Premises and the denominator of which shall be the
total number of square feet of real property in the entire complex of which the
Premises are a part.
10.3 PERSONAL PROPERTY TAXES.
(a) Lessee shall pay prior to delinquency all taxes assessed against
and levied upon trade fixtures, furnishings, equipment and all other personal
property of Lessee contained in the Premises or elsewhere. When possible, Lessee
shall cause said trade fixtures, furnishings, equipment and all other personal
property to be assessed and billed separately from the real property of Lessor.
(b) If any of Lessee's said personal property shall be assessed with
Lessor's real property, Lessee shall pay Lessor the taxes attributable to Lessee
within ten (10) days after receipt of a written statement setting forth the
taxes applicable to Lessee's property.
11. COST OF LIVING ADJUSTMENT TO RENT. The rent, as set forth in this Lease or
as provided for in any amendment or extension thereof, shall be increased yearly
by the percentage increase, if any, in the Consumer Price Index, as published by
the United States Department of Labor's Bureau of Labor Statistics.
The base for determining the adjustment shall be the index figure for
the month which is three months prior to the month in which the Lease commences
as shown in the Consumer Price Index for all Urban Consumers, U.S. City Average,
All Items (1967 = 100) CPI-U as compared to the index figure which is three
months prior to each anniversary date of this Lease. Should the aforementioned
index be discontinued, the Lessor may substitute any official index published by
the United States Department of Labor or similar governmental agency as may then
be in existence.
In the event that the U.S. Department of Labor, Bureau of Labor
Statistics, changes the publication frequency of the Price Index (as defined in
this section) so that a Price Index is not available to make a cost-of-living
adjustment of annual rent, the cost-of-living adjustment shall be based on the
percentage difference between the Price Index for the closest preceding month
for which a Price Index is available and the Price Index for the Base Month.
12. BUILDING OPERATING EXPENSES. In addition to the rental herein provided to
be paid by Lessee to Lessor, Lessee shall pay to the Lessor, on or before the
first day of each month, as Additional Rent, Lessee's proportionate share of
Building Operating Expenses, as hereinafter defined, based upon a fraction,
the numerator of which shall be the number of square feet in the Premises and
the denominator of which shall be the total number of square feet of real
property in the entire complex of which the Premises are a part.
This figure shall be adjusted annually based upon Lessor's best
estimate of costs of the then current year. Within ninety(90) days after the
end of each calendar year, Lessee shall receive an accounting statement
showing the adjustment, the actual Annual Operating Costs for the prior year
and the amount actually paid by Lessee. If the amount paid by Lessee exceeds
Lessee's share of actual costs, the excess shall be credited against Lessee's
next payment(s) of Operating Costs. If the amount paid by Lessee is less than
Lessee's proportionate share of actual costs, Lessee shall pay the deficit
within ten (10) days of Lessee's receipt of the statement.
For purposes of this Section, Building Operating Expenses, which is
inclusive of common areas, shall mean the sum of all expenses incurred by Lessor
in connection with the operation, management, repair and maintenance of the
Building(s) and common areas including, but not limited to, rubbish and snow
removal, window cleaning, utilities, janitorial service, maintenance of all
parking lots, driveways, landscaping, streets and perimeter berms, including any
governmental surcharge, fee or assessment imposed with respect to the parking
facilities to the extent paid by Lessor and not passed on to users of said
parking facilities and all fire and extended coverage and other insurance
covering the Building(s). Without limiting the generality of the foregoing,
Building Operating Expenses shall also include all materials and supplies,
salaries, wages and other expenses incurred with respect to maintenance,
gardening, landscaping, repaving, repainting, cleaning, security and fire
protection and an amount equal to ten percent (10%) of all such expenses to
cover Lessor's administrative and overhead expenses. Lessor may, in addition to
any other remedy, impose a reasonable charge for excess usage of Building(s)
facilities and services, which express usage is occasioned by greater than
normal usage of utilities or by use of the Premises. Executive salaries, general
overhead and depreciation of improvements shall not be included in the foregoing
expenses.
13. UTILITIES. Lessee shall pay for all gas, heat, light, power, telephone
and other utilities and services supplied to the Premises, together with any
taxes thereon.
14. ASSIGNMENT AND SUBLETTING.
14.1 LESSOR'S CONSENT REQUIRED. Lessee shall not voluntarily, or by
operation of law, assign, transfer, mortgage, sublet or otherwise transfer or
encoumber all or any part of Lessee's interest in this Lease or in the
Premises without Lessor's prior written consent, which Lessor shall not
unreasonably withhold. Any attempted assignment, transfer, mortgage,
encumbrance or subletting without such consent shall be void and shall
constitute a breach of this Lease. Lessor may condition its consent to any
subletting upon entering into a lease directly with the proposed subtenant,
in which case the portion of the Premises so leased shall be released from
this Lease and Lessee shall have no further obliga-
2
tions with respect to the released space.
14.2 NO RELEASE OF LESSEE. Except where Lessor requires a new Lease
directly with the proposed subtenant, as set forth above, no subletting or
assignment shall release Lessee of Lessee's obligation or alter the primary
liability of Lessee to pay the rent and to perform all other obligations to be
performed by Lessee hereunder. The acceptance of rent by Lessor from any other
person shall not be deemed to be a waiver by Lessor of any provision hereof.
Consent to one assignment or subletting shall not be seemed consent to any
subsequent assignment or subletting.
15. DEFAULTS; REMEDIES.
15.1 DEFAULTS. The occurrence of any one or more of the following events
shall constitute a default and breach of this Lease by Lessee:
(a) The vacating or abandonment of the Premises by Lessee.
(b) The failure by Lessee to make any payment of rent or any other
payment required to be made by Lessee hereunder, as and when due.
(c) The failure by Lessee to observe or perform any of the covenants,
conditions or provisions of this Lease to be observed or performed by Lessee,
other than described in Paragraph (b) above, where such failure shall continue
for a period of thirty (30) days after written notice hereof from Lessor to
Lessee; provided, however, that if the nature of Lessee's default is such that
more than thirty (30) days are reasonably required for its cure, then Lessee
shall not be deemed to be in default if Lessee commenced such cure withing said
30-day period and thereafter diligently prosecutes such cure to completion.
(d) (i) The making by Lessee of any general assignment or general
arrangement for the benefit of creditors; (ii) the filing by or against Lessee
of a petition to have Lessee adjudged a bankrupt or a petition for
reorganization or arrangement under any law relating to bankruptcy unless, in
the case of a petition filed against Lessee, the same is dismissed within sixty
(60) days; (iii) the appointment of a trustee or receiver to take possession of
substantially all of Lessee's assets located at the Premises or of Lessee's
interest in this Lease where possession is not restored to Lessee within thirty
(30) days; or (iv) the attachment, execution or other judicial seizure of
substantially all of Lessee's assets located at the Premises or of Lessee's
interest in this Lease where such seizure is not discharged within thirty (30)
days.
15.2 REMEDIES. In the event of any such default or breach by Lessee,
Lessor may, at any time thereafter, with or without notice or demand and without
limiting Lessor in the exercise of any right or remedy which Lessor may have by
reason of such default or breach:
(a) Terminate Lessee's right to possession of the Premises by any
lawful means, in which case this Lease shall terminate and Lessee shall
immediately surrender possession of the Premises to Lessor. In such event,
Lessor shall be entitled to recover from Lessee all damages incurred by Lessor
by reason of Lessee's default including, but not limited to, the cost of
recovering possession of the Premises, expenses of reletting, including
necessary renovation and alteration of the Premises, reasonable attorney's fees,
and any real estate commission actually paid; the worth at the time of award by
the court having jurisdiction thereof of the amount by which the unpaid rent for
the balance of the term after the time of such award exceeds the amount of such
rental loss for the same period that Lessee provides could be reasonably avoided
and that portion of the leasing commission paid by Lessor applicable to the
unexpired term of this Lease. In the event Lessee shall have abandoned the
Premises, Lessor shall have the option of (i) retaking possession of the
Premises and recovering from Lessee the amount specified in this Paragraph
15.2(a), or (ii) proceeding under Paragraph 15.2(b).
(b) Maintain Lessee's right to possession, in which case this Lease
shall continue in effect whether or not Lessee shall have abandoned the
Premises. In such event, Lessor shall be entitled to enforce all of Lessor's
rights and remedies under this Lease, including the right to recover the rent as
it becomes due hereunder.
(c) Pursue any other remedy now or hereafter available to Lessor
under the laws or judicial decisions of the state in which the property is
located.
15.3 DEFAULT BY LESSOR. Lessor shall not be in default unless Lessor fails
to perform obligations required of Lessor within a reasonable time but in no
event later than thirty (30) days after written notice by Lessee to Lessor;
provided, however, that if the nature of Lessor's obligation is such that more
than thirty (30) days are required for performance, then Lessor shall not be in
default if Lessor commences performance within such 30-day period and thereafter
diligently prosecutes the same to completion.
15.4 LATE CHARGES. Notwithstanding anything contained in this Lease to
the contrary, Lessee hereby acknowledges that late payment by Lessee to
Lessor of rent and other sums due hereunder will cause Lessor to incur costs
not contemplated by this Lease, the exact amount of which will be extremely
difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges and late charges which may be imposed on
Lessor by the terms of any mortgage or trust deed covering the Premises.
Accordingly, if any installment of rent or any other sum due from Lessee
shall not be received by Lessor or Lessor's designee within ten (10) days
after such amount shall be due, Lessee shall pay to Lessor a late charge
equal to ten percent (10%) of such overdue amount. The parties hereby agree
that such late charge represents a fair and reasonable estimate of the costs
Lessor will incur by reason of late payment by Lessee. Acceptance of such
late charge by Lessor shall in no event constitute a waiver of Lessee's
default with respect to such overdue amount nor prevent Lessor from
exercising any of the other rights and remedies granted hereunder.
16. CONDEMNATION. If the Premises, or any portion thereof, are taken under
the power of eminent domain or sold under the threat of the exercise of said
power (all of which are herein called "condemnation"), this Lease shall
terminate as to the part so taken as of the date the condemning authority
takes title or possession, whichever first occurs. If more than 10% of the
floor area of the Premises is taken by condemnation, Lessee may, at Lessee's
option to be exercised in writing only withing ten (10) days after Lessor
shall have given Lessee written notice of such taking (or in the absence of
such notice, within ten (10) days after the condemning authority shall have
taken possession), terminate this Lease as of the date the condemning
authority takes such possession. If Lessee does not terminate this Lease in
accordance with the foregoing, this Lease shall remain in full force and
effect as to the portion of the Premises remaining, except that the rent
shall be reduced in the proportion that the floor area taken bears to the
total floor area of the Premises. Any award for the taking of all or any
part of the Premises under the power of eminent domain or any payment made
under the threat of the exercise of such power shall be the property of
Lessor, whether such award shall be made as compensation for diminution in
value of the leasehold or for the taking of the fee or as severance damages;
provided, however, that Lessee shall be entitled to any award for loss of
damage to Lessee's trade fixtures and removable personal property. In the
event that this Lease is not terminated by reason of such condemnation,
Lessor shall, to the extent of severance damages received by Lessor in
connection with such condemnation, repair any damage to the Premises caused
by such condemnation except to the extent that Lessee has been reimbursed
therefor by the condemning authority. Lessee shall pay any amount in excess
of such severance damages required to complete such repair.
17. GENERAL PROVISIONS.
17.1 ESTOPPEL CERTIFICATE.
(a) Lessee shall, at any time upon not less than ten (10) days prior
written notice from Lessor, execute, acknowledge and deliver to Lessor a
statement in writing (i) certifying that this Lease is unmodified and in full
force and effect or, if modified, stating the nature of such modification and
certifying that this Lease, as so modified, is in full force and effect and the
date to which the rent and other charges are paid in advance, if any, and (ii)
acknowledging that there are not, to Lessee's knowledge, any uncured defaults on
the part of Lessor hereunder, or specifying such defaults if any are claimed.
Any such statement may be conclusively relied upon by any prospective purchaser
or encumbrancer of the Premises.
(b) Lessee's failure to deliver such statement within such time shall
be conclusive upon Lessee (i) that this Lease in full force and effect, without
modification except as may be represented by Lessor, (ii) that there are no
uncured defaults in Lessor's performance, and (iii) that not more than one
month's rent has been paid in advance.
(c) If Lessor desires to finance or refinance the Premises, or any
part thereof, Lessee hereby agrees to deliver to any lender designated by Lessor
such financial statements of Lessee as may be reasonably required by such
Lender. Such statements shall include the past three years' financial
statements of Lessee. All such financial statements shall be received by Lessor
in confidence and shall be used only for purposes herein set forth.
17.2 LESSOR'S LIABILITY. The term "Lessor" as used herein shall mean only
the owner or owners at the time in question of the fee title or a Lessee's
interest in a ground Lease of the Premises. In the event of any transfer of
such title or interest, Lessor herein named (and in case of any subsequent
transfers the then grantor) shall be relieved from and after the date of such
transfer of all liability for Lessor's obligations thereafter to be
performed, provided that any funds in the hands of Lessor or the then grantor
at the time of such transfer in which Lessee has an interest shall be
delivered to the grantee. The obligations contained in this Lease to be
performed by Lessor shall, subject as aforesaid, be binding on Lessor's
successors and assigns only during their respective periods of ownership.
17.3 SEVERABILITY. The invalidity of any provision of this Lease, as
determined by a court of competent jurisdiction, shall in no way effect the
validity of any other provision hereof.
17.4 TIME OF ESSENCE. Time is of the essence.
17.5 INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS. This Lease contains all
agreements of the parties with respect to any matter mentioned herein. No prior
agreement or understanding pertaining to any such matter shall be effective.
This Lease may be modified in writing only, signed by the parties in interest at
the time of the modification.
17.6 NOTICES. Any notice required or permitted to be given hereunder shall
be in writing and may be served personally or by regular mail, addressed to
Lessor and Lessee respectively, at the addresses set forth after their
signatures at the end of this Lease.
17.7 WAIVERS. No waiver by Lessor of any provision hereof shall be deemed a
waiver of any other provision hereof or of any subsequent breach by Lessee of
the same or any other provision. Lessor's consent to or approval of any act
shall not be deemed to render unnecessary the obtaining of Lessor's consent to
or approval of any subsequent act by Lessee. The acceptance of rent hereunder
by Lessor shall not be a waiver of any preceding breach by Lessee of any
provision hereof other than the failure of Lessee to pay the particular rent so
accepted regardless of Lessor's knowledge of such preceding breach at the time
of acceptance of such rent.
17.8 RECORDING. Lessee shall not record this Lease without Lessor's prior
written consent and such recordation shall, at the option of Lessor, constitute
a noncurable default of Lessee hereunder. Either party shall, upon request of
the other, execute, acknowledge and deliver to the other a "short form"
memorandum of this Lease for recording purposes.
17.9 HOLDING OVER. If Lessee remains in possession of the Premises or any
part thereof after the expiration of the term hereof without the express written
consent of Lessor, such occupancy shall be a tenancy from month to month at a
rental in the amount of double the last monthly rental plus all other charges
payable hereunder and upon all the terms
3
hereof applicable to a month-to-month tenancy.
17.10 CUMULATIVE REMEDIES. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at
law or in equity.
17.11 COVENANTS AND CONDITIONS. Each provision of this Lease to be
performed by Lessee shall be deemed both a covenant and a condition.
17.12 BINDING EFFECT. Subject to any provisions hereof restricting
assignment or subletting by Lessee and subject to the provisions of Paragraph
17.2, this Lease shall bind the parties, their personal representatives,
successors and assigns.
17.13 SUBORDINATION.
(a) This Lease, at Lessor's option, shall be subordinate to any ground
Lease, mortgage, deed of trust or any other hypothecation for security now or
hereafter placed upon the property of which the Premises are a part and to
any and all advances made on the security thereof and to all renewals,
modifications, consolidations, replacements and extensions thereof.
Notwithstanding such subordination, Lessee's right to quiet possession of the
Premises shall not be disturbed if Lessee is not in default and so long as
Lessee shall pay the rent and observe and perform all of the provisions of
this Lease, unless this Lease is otherwise terminated pursuant to its terms.
If any mortgagee, trustee or ground lessor shall elect to have this Lease
prior to the lien of its mortgage, deed of trust or ground Lease and shall
give written notice thereof to Lessee, this Lease shall be deemed prior to
such mortgage, deed of trust or ground Lease whether this Lease is dated
prior or subsequent to the date of said mortgage, deed of trust or ground
Lease as of the date of recording thereof.
(b) Lessee agrees to execute any documents required to effectuate
such subordination or to make this Lease prior to the lien of any mortgage, deed
of trust or ground Lease, as the case may be, and failing to do so within ten
(10) days after written demand does hereby make, constitute and irrevocably
appoint Lessor as Lessee's attorney in fact and in Lessee's name, place and
stead, to do so.
17.14 ATTORNEY'S FEES. If either party brings an action to enforce the
terms hereof or declare rights hereunder, the prevailing party, in any such
action, on trial or appeal, shall be entitled to reasonable attorney's fees to
be paid by the losing party as fixed by the court.
17.15 LESSOR'S ACCESS. Lessor and Lessor's agents shall have the right to
enter the Premises at reasonable times between 8 a.m. and 5 p.m. weekdays for
the purpose of inspecting the same, showing the same to prospective purchasers
or lenders and making such alterations, repairs, improvements or additions to
the Premises or to the building of which they are a part as Lessor may deem
necessary or desirable. Lessor may at any time place on or about the Premises
any "For Sale" and "For Lease" signs.
17.16 SIGNS AND AUCTIONS. Lessee shall not place any sign upon the Premises
or conduct any auction thereon without Lessor's prior written consent, provided,
however, Lessee shall place and maintain a sign as per Lessor's specifications.
Specific sign criteria shall be set forth in Exhibit "C" attached hereto and
incorporated herein.
17.17 MERGER. The voluntary or other surrender of this Lease by Lessee,
or a mutual cancellation thereof, shall not work a merger and shall, at the
option of Lessor, terminate all or any existing subtenancies or may, at the
option of the Lessor, operate as an assignment to Lessor of any or all of
such subtenancies.
17.18 CORPORATE AUTHORITY. If Lessee is a corporation, each individual
executing this Lease on behalf of said corporation represents and warrants that
he or she is duly authorized to execute and deliver this Lease on behalf of said
corporation in accordance with a duly adopted resolution of the Board of
Directors of said corporation or in accordance with the By-laws of said
corporation, and that this Lease is binding upon said corporation in accordance
with its terms. If Lessee is a corporation, Lessee shall, withing thirty (30)
days after execution of this Lease, deliver to Lessor a certified copy of a
resolution of the Board of Directors of said corporation authorizing or
ratifying the execution of this Lease.
17.19 RIGHT TO MOVE. Lessor shall have the right, at any time during the
term of this Lease upon giving Lessee sixty (60) days notice in writing, to
provide and furnish Lessee with space elsewhere in the industrial park of the
approximate same size and area as the herein Premises and to remove and place
Lessee in such new space, at Lessor's sole cost and expense, with all terms,
covenants and provisions contained herein remaining in full force and effect.
If Lessee declines to accept such substituted Premises, this Lease Agreement
shall terminate at the expiration of such sixty (60) day notice period or at
such earlier date as agreed upon by Lessor and Lessee.
17.20 PARKING AND COMMON AREAS. The Lessee, its agents, employees and
invitees shall be entitled to park in common with other tenants of Lessor
providing that it agrees not to overburden the parking facilities and agrees to
cooperate with the Lessor and other occupants of the property in the use of the
parking facilities. the Lessor specifically reserves the right in its absolute
discretion to determine whether parking facilities are becoming overburdened and
in such event to allocate the parking spaces among the Lessee and other
occupants, their agent, employees and business invitees using the parking
facilities. All loading operations for receipt or shipment of goods, wares and
merchandise by the Lessee shall be done in the rear of the Premises or in such
area therein which is specifically designated in writing by the Lessor.
17.21 SAFETY. Lessee will maintain on the Premises at all times during the
term hereof adequate number, size and type of fire extinguishers as is
appropriate to Lessee's business. Lessee will at all times adhere to good
safety practices or as may be required by safety inspectors.
The parties hereto have executed this Lease on the date set forth hereinabove.
Life Investors Insurance Company of
WITNESS: LESSOR: America, by AEGON USA Realty
Management, Inc. its authorized
agent
/s/Joan Sebers By:/s/ illegible signature
- --------------------------------- ---------------------------------------
Address: 4333 Edgewood Road NE
----------------------------------
Cedar Rapids, IA 52499
------------------------------------------
Image Guided Technologies, Inc.,
WITNESS: LESSEE: a Colorado Corporation
/s/ Robert E. Sillgman By:/s/ Jeffrey J. Hiller
- --------------------------------- ---------------------------------------
Address: 5710 Flatiron Parkway
----------------------------------
Boulder, CO 80301
------------------------------------------
4
IN WITNESS WHEREOF, the Guarantor has executed this Guaranty this ____ day of
January, 1996.
Guarantor: S.M. Stoller Corporation, a Delaware corporation
5700 Flatiron Parkway
Boulder, CO 80301
By: /s/Dorothy Morse
----------------------
Its: Vice President
----------------------
Witness: /s/Gemmi C. Holland
--------------------------------
Witness:
--------------------------------
The S.M. Stoller Corporation shall not be charged late fees, under this
guarantee, for non-payment of rent by Image Guided Technologies, Inc. if: The
S.M. Stoller Corporation makes this payment within ten days of written
notification by Life Investors Company of America.
Any amounts due Life Investors Company of America by the S.M. Stoller
Corporation, under this guarantee, shall not exceed an amount that The S.M.
Stoller Corporation would have paid in rent under their Lease on the same space
through April 30, 1997.
/s/ illegible
RIDER
THE PROVISIONS OF THIS RIDER SHALL BE PARAMOUNT AND SHALL SUPERSEDE THE PRINTED
PROVISIONS OF THIS LEASE AND ALL EXHIBITS, NOTWITHSTANDING ANYTHING THEREIN TO
THE CONTRARY. IN THE EVENT OF ANY CONFLICT, INTERPRETATION OR INCONSISTENCY,
THE PROVISIONS OF THIS RIDER SHALL CONTROL.
1. AS TO PARAGRAPH 4: Subject to adjustments as otherwise provided in said
Lease, the monthly rental shall be as follows:
Commencing February 1, 1996 and continuing through January 31, 1997, the
sum of $110,458.44 per annum, payable monthly, in advance, at the rate of
$9,204.87 per month.
Commencing February 1, 1997 and continuing through January 31, 1998, the
sum of $115,981.32 per annum, payable monthly, in advance, at the rate of
$9,665.11 per month.
Commencing February 1, 1998 and continuing through January 31, 1999, the
sum of $121,780.44 per annum, payable monthly, in advance, at the rate of
$10,148.37 per month.
2. AS TO PARAGRAPH 5: Notwithstanding any of the terms and provisions of
Paragraph 5 to the contrary, whereas this Lease will be guaranteed by S.M.
Stoller Corporation, a Delaware corporation, from February 1, 1996 through April
30, 1997, Lessee shall pay its security deposit to S.M. Stoller Corporation
prior to Lease commencement. On May 1 1997, Lessee's security deposit, or the
remainder thereof, shall be transferred to Lessor and held by Lessor, per the
terms and provisions of Paragraph 5.
2. AS TO PARAGRAPH 6.2: The following shall be inserted in line 3 of
Paragraph 6.2 immediately following the word "tenants.":
(a) Lessee shall comply with all applicable federal, state and local
environmental laws, ordinances, orders or regulations affecting the Premises,
the operation of Lessee's business at the Premises, the use of the Premises,
or the removal of any hazardous substance or non hazardous substances
therefrom, as now or hereafter defined. Notwithstanding anything in this
Lease to the contrary. Lessee shall not, without Lessor's prior written
consent and subject to reasonable condition imposed by Lessor, place or
permit on the Premises or otherwise use, store, manufacture, process or
dispose of any oil, grease or hazardous substance regulated by public
authority.
(b) Lessee shall not permit on-site disposal of any oil, grease or
hazardous substance. No hazardous or industrial wastes, contaminated
substances or those resulting from manufacturing or processing, shall be
deposited in containers provided for trash removal. All waste materials,
including Lessee's construction or remodeling wastes, other than ordinary
sanitary commercial trash, shall be removed from the Premises and properly
disposed of in compliance with all applicable laws at Lessee's sole cost and
expense.
(c) Lessee docs hereby agree to indemnify and hold Lessor harmless of,
from and against all claims, actions liens, demands, costs expenses, fines and
judgments (including legal costs and attorney's fees) resulting from or arising
by reason of any of the following: (i) any spills or contamination of air, oil
or water by oil, grease or hazardous substances at or around the Premises or
upon removal therefrom: (ii) the violation of any environmental laws or
regulations; or (iii) the violation of any of the provisions of this Paragraph
6. Notwithstanding the above, this indemnity shall not cover or apply to
conditions or matters: (i) existing as of the commencement date of this Lease,
or (ii) resulting from the actions or in action's or other tenants or
originating in premises of other tenants.
(d) Upon ten (10) days prior written notice request from Lessor, Lessee
shall execute, acknowledge and deliver to Lessor a written statement, in form
satisfactory to Lessor, certifying that no hazardous substances have been
brought on the Premises during the term of this Lease, that Lessee has not
disposed of any oil, grease or hazardous substance at the Premises and that any
such substances used, processed or generated at the Premises have been disposed
of properly.
(c) Lessor warrants that to the best of its knowledge no hazardous or
toxic substances have been released at the Premises and the Premises are in
compliance with all environmental laws and regulations.
(f) Notwithstanding any of the above provisions to the contrary, Lessee
shall not be responsible for any pre existing conditions or substances existing
upon the Premises as of the commencement of this Lease, nor shall Lessee be
responsible for any conditions or matters resulting form the action or inactions
of Lessor, or Lessor's employees, agents, representatives or contractors.
3. AS TO PARAGRAPH 7.3: Notwithstanding any of the terms and provisions of
Paragraph 7.3 to the contrary, Lessor shall, at Lessor's sole cost and expense,
provide the following improvements to the Premises:
(i) Seal off the doorway between Suite 5710 and the other areas of
the building which are not part of the Premises.
(ii) Install VCT tile in the area lined out on the attached layout.
(iii) Clean the carpets of the Premises.
(iv) Touch-up paint the walls of the Premises as needed.
Any improvements in excess of $4,000 above shall be at Lessee's sole cost and
expense.
Notwithstanding any of the terms and provisions of Paragraph 7.3 to the
contrary, Lessee may, at Lessee's sole cost and expense, remove, then re-
install, exterior windows and/or interior walls of the Premises in order to move
a piece of Lessee's equipment into the Premises. Permission is given to Emerald
Construction to perform such work. Lessee hereby agrees that upon completion of
said work, all windows, doors and walls of the Premises will be restored to
their previous condition.
4. AS TO PARAGRAPH 8.1 The body of Paragraph 8.1 is deleted and in lieu and in
place thereof is inserted the following:
"Notwithstanding anything to the contrary set forth in this Lease. Lessee
covenants and agrees that so long as this Lease remains in effect and during
such other times as Lessee occupies the Premises or any part thereof, Lessee at
its sole cost and expense, shall obtain, maintain and keep in full force and
effect as to the Premises:
(a) Commercial General Liability Insurance including Blanket
Contractual, Personal Injury, Fire Legal Liability, Broad Form Liability,
Owned, Non-Owned and Hired Automobile coverages naming Lessee as insured, and
Lessor, any mortgagee of the Building, any Lessor under the Lease of the
property on which the Building is located, and AEGON USA Realty Management,
Inc. as Lessor's agent, as additional insureds, with minimum limits of
$1,000,000 combined single limit for property damage and bodily injury per
occurrence for any and all claims for injury or damage to persons or property
or for the loss of life or damage to persons or property of for the loss of
life or or of property occurring upon, in or about the Premises and the
public portions of the Building arising out of or in connection with any act
or omission of Lessee, its employees, agents, contractors, customers and
invitees.
(b) All Risk Insurance including without limitation sprinkler leakage and
flood and earthquake, if flood and earthquake exposure exists, and vandalism and
malicious mischief on a 100% replacement cost basis covering all contents,
merchandise, inventory, equipment, floor coverings, fixtures and improvements
owned or installed by Lessee. Lessee shall apply all insurance proceeds
attributable to any of the foregoing items to the repair and restoration
thereof. In addition, Lessee shall obtain and keep in full force and effect
during the term of this lease Business Interruption Insurance with All Risk
Perils and such other insurance in such amounts as Lessor shall reasonably
require.
(c) Worker's Compensation Insurance as required by law and Employers'
Liability Coverage for a minimum of $100,000 per occurrence.
(d) The limits of insurance coverage shall not limit the liability of
Lessee. If Lessee fails to procure or maintain insurance coverages as
provided above. Lessor may, but shall not be required to, procure and
maintain coverage at the expense of Lessee."
THIS RIDER CONSISTS OF TWO (2) TYPEWRITTEN PAGES.
RULES AND REGULATIONS
GEMINI II BUILDING
(1.) The sidewalks, entrances, and passage courts shall not be obstructed
for any purpose other than ingress and egress.
(2.) No awnings or other projections shall be attached to the outside walls
of the building. No curtains, blinds, shades or screens shall be attached to or
hung in or used in connection with any window or door of the premises, without
prior written consent of the Lessor. All electrical ceiling fixtures hung in
offices of spaces along the perimeter of the building must be fluorescent and/or
of quality, type, design, and bulb color approved by Lessor.
(3.) No sign, advertisement or notice shall be exhibited, painted or
affixed by tenant so as to be seen from the outside of the premises or the
building without prior written consent of the Lessor. In the event of the
violation of the foregoing, Lessor may remove same without liability and may
charge Lessee the expenses incurred in such removal. Signs on directory tablet
shall be inscribed, painted or affixed by Lessor at the sole cost and expense of
the Lessee.
(4.) Lessee shall not mark, paint, drill into, or in any way deface any
part of the premises or the building. No boring, cutting or stringing of wires
or laying of floor coverings shall be permitted without the prior written
consent of the Lessor.
(5.) No animals of any kind shall be brought into or kept in or about the
premises. Lessee shall not cause or permit any unusual or objectionable odors
to be produced in or permeate the building, including excessive cigarette, cigar
or pipe smoke odor.
(6.) Lessee shall not occupy or permit any portion of the premises to be
occupied or used for the manufacture or sale of liquor, narcotics, or tobacco in
any form, or as a medical office, dental office, barber shop, beauty salon,
cosmetology or manicure shop. The premises shall not be used for lodging or
sleeping or for any illegal or immoral purpose.
(7.) Lessee shall not make or permit to be made any unseemly or disturbing
noise or disturb or interfere with occupants of premises or neighboring
buildings or those having business with them whether by the use of any musical
instrument, radio, phonograph, unusual noise or in any other way.
(8.) Lessee, it's agents, employees, representatives, or invitees shall not
at any time store upon the premises any inflammable, combustible or explosive
fluid, chemical or substance.
(9.) No additional locks, hooks or attachments of any kind shall be placed
upon any of the doors or windows, nor shall any changes be made in the existing
locks or mechanism thereof without prior consent of Lessor.
(10.) No air conditioning or heating unit, wood burning stove or similar
apparatus shall be installed on the roof or inside the premises without the
prior written consent of the Lessor.
(11.) Plastic chair mats are mandatory for all chairs equipped with
rolling casters. Carpet damage resulting from negligence in this regard will
be billed to Lessee or deducted from Lessee's security deposit for such
damage up to and including the cost of replacing the entire carpet.
(12.) Solicitors are not permitted on the premises and should be immediately
reported to Lessor.
(13.) Lessee shall, at Lessee's sole cost and expense, provide, install
and maintain one (1) fire extinguisher for every seventy (70) feet of travel
distance within the demised premises. Such fire extinguisher(s) shall be the
multipurpose ABC type with a minimum five (5) pound capacity.
(14.) Lessee, it's agents, employees, contractors, representatives, or
invitees shall not be permitted on the roof of any building without the prior
consent of the Lessor.
(15.) Lessee is required to breakdown all boxes and bag all paper trash
prior to disposing of same in dumpster.
(16.) Lessee will maintain the exterior of the warehouse service area in a
neat and clean fashion at all times. Storage of pallets or other materials
of any kind is not permitted outside the demised premises.
(17.) In addition to paragraph 17.20 of this lease, Lessee, it's agents,
employees, representatives, contractors, or invitees will not store any
vehicle(s) in the parking lot. In the event of violation of the foregoing,
Lessor may remove same without liability and at the sole cost and expense of
the vehicle owner.
[MAP]
EXHIBIT A
[MAP]
EXHIBIT B
EXHIBIT "C"
In consideration of, and as an inducement for the granting,
execution and delivery of a certain Lease, dated contemporaneously with this
Guaranty (herein the "Lease"), by Life Investors Insurance Company of
America, the Landlord or Lessor therein named (herein the "Lessor") to Image
Guided Technologies, Inc., a Colorado Corporation, as the Tenant or Lessee
therein named (herein the "Lessee"), and in further consideration of the sum
of Ten ($10.00) Dollars and other good and valuable consideration paid by
Lessor to the undersigned, the receipt and sufficiency of which are hereby
acknowledged, the undersigned, S.M. Stoller Corporation, a Delaware
corporation, (herein the "Guarantor"), hereby guarantees to the Lessor, its
successors and assigns, the full and prompt payment of Rent, as defined in
the Lease, and any and all other sums and charges payable by Lessee, its
successors and assigns, under the Lease, and hereby further guarantees the
full and timely performance and observance of all the covenants, terms,
conditions and agreements of the Lease to be performed and observed by
Lessee, its successors and assigns. Guarantor hereby covenants and agrees to
and with Lessor, its successors and assigns, that if default shall at any
time be made by Lessee, its successors and assigns, in the payment of Rent,
or if Lessee should default in the performance and observance of any of the
terms, covenants, provisions or conditions contained in the Lease, Guarantor
shall and will forthwith pay such Rent to Lessor, its successors and assigns,
and any arrears thereof, and shall forthwith faithfully perform and fulfill
all of such terms, covenants, conditions and provision, and will forthwith
pay to Lessor all damages including, without limitation, all reasonable
attorneys fees, and disbursements incurred by Lessor or caused by any such
default and by the enforcement of this Guaranty. If at any time the term
"Guarantor" shall include more than one (1) person or entity, the obligations
of all such persons and entities under the Guaranty shall be joint and
several.
Guarantor agrees it shall not have any rights based on suretyship
or otherwise to stand in the place of the Lessor so as to compete with Lessor
as a creditor of Lessee, unless and until all claims of the Lessor under said
Lease shall have been fully paid and satisfied. Guarantor waives any right to
require that any security deposit or any other credit in favor of Lessee be
applied to Lessee's account. Guarantor also waives the benefits and
protection of any statute of limitations affecting Guarantor's liabilities
under this Guaranty.
This Guaranty is an absolute and unconditional Guaranty of payment
and of performance. It shall be enforceable against Guarantor, its
successors and assigns, without the necessity for any suit or proceedings on
Lessor's part of any kind or nature whatsoever against Lessee. Guarantor
waives any and all notices and demands to which Guarantor might otherwise be
entitled, with Guarantor further agreeing that the validity of this Guaranty
and the obligations of the Guarantor hereunder shall in no way be terminated,
affected, diminished or impaired by reason of the assertion or the failure to
assert by Lessor against Lessee, or against Lessee successors and assigns, of
any of the rights or remedies reserved to Lessor pursuant to the provisions
of the Lease. The phrase "successors and assigns" shall be deemed to include
the heirs and legal representatives of Lessee and Guarantor, as the case may
be.
This Guaranty shall be a continuing Guaranty, and the liability of
Guarantor hereunder shall in no way be affected, modified or diminished by
reason of any assignment, renewal, modification or extension of the Lease or
by reason of any modification or waiver of or change in any of the terms,
covenants, conditions or provisions of the Lease by Lessor and Lessee, or by
reason of any extension of time that may be granted by Lessor to Lessee, its
successors or assigns by reason of any dealings or transactions or matter of
thing occurring between Lessor and Lessee, its successors or assigns or by
reason of any bankruptcy, insolvency, reorganization, arrangement, assignment
for the benefit of creditors, receivership or trusteeship affecting Lessee,
whether or not notice thereof or of any thereof is given to Guarantor.
Neither Guarantor's obligation to make payment in accordance with the terms
of this Guaranty nor any remedy for the enforcement thereof shall be
impaired, modified, released, or limited in any way by an impairment,
modification, release, or limitation of the liability of Lessee or its estate
in bankruptcy, resulting from the operation of any present or future
provision of the U.S. Bankruptcy Code or from the decision of any court
interpreting the same.
Guarantor warrants and represents to Lessor that it has the legal
right and capacity to execute this Guaranty. In the event that this Guaranty
shall be held ineffective or unenforceable by any court or competent
jurisdiction, the Guarantor shall be deemed to be a Lessee under this Lease
with the same force and effect as if Guarantor were expressly named as a
joint Lessee herein. Guarantor expressly agrees (without in any way limiting
its liability under any other provision of this Guaranty) that Guarantor
shall, at the request of Owner, in the event of the termination of the Lease
due to Lessee's default, enter into a new lease with Owner on the same terms
and conditions as contained in the Lease immediately prior to its
termination, for a term commencing on the termination date of the Lease and
ending on the expiration date of the Lease,
As a further inducement to Lessor to make said Lease and in
consideration therefor, Lessor and the undersigned hereby agree that in any
action, proceeding or counterclaim brought by either the Lessor or the
undersigned against the other on any matters whatsoever arising out of or
in any way connected with said Lease or this guaranty, that Lessor and the
undersigned shall and do hereby waive a trial by jury.
This Guaranty shall be governed by and construed in accordance with
the laws of the jurisdiction in which the premises demised pursuant to the
Lease is located. All of the Lessor's rights and remedies under the Lease or
under this Guaranty are intended to be distinct, separate and cumulative, and
no such right or remedy therein mentioned is intended to be in exclusion of
or a waiver of the other right or remedy available to Lessor. This Guaranty
or any of the provisions thereof cannot be modified, waived or terminated,
unless in writing, signed by Lessor.
THIS GUARANTY SHALL TERMINATE AND EXPIRE AS TO OBLIGATIONS OF THE
LESSEE UNDER THE LEASE ARISING AFTER APRIL 30, 1997. AS TO OBLIGATIONS ARISING
OUT OF EVENTS OCCURRING PRIOR TO THAT DATE OF TERMINATION, GUARANTOR SHALL BE
LIABLE AS TO ALL SUCH OBLIGATIONS WHETHER OR NOT KNOWN AS OF THE DATE OF
TERMINATION. GUARANTOR SHALL ALSO BE RESPONSIBLE FOR ALL COSTS AND EXPENSES,
INCLUDING INTEREST AND ATTORNEY FEES, ASSOCIATED WITH THOSE OBLIGATIONS FOR
WHICH GUARANTOR IS RESPONSIBLE, INCLUDING THOSE COSTS AND EXPENSES FOR THE
PERIOD FOLLOWING THE DATE OF TERMINATION.