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EXHIBIT 10.6
LEASE AGREEMENT
OFFICE AND INDUSTRIAL SPACE
THIS LEASE AGREEMENT is made and entered into as of the 11th day of
May 1991, by and between GB Ventures ("Landlord"), whose address is 4875 Pearl
East Circle, Suite 300, Boulder, CO 80301, and Atrix Laboratories, Inc.
("Tenant"), whose address is 1625 Sharp Point Drive, Fort Collins, CO 80525.
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 meanings:
A. "Area" shall mean the parcel of land depicted on Exhibit "A"
attached hereto and commonly known and referred to as Plum Tree Plaza, 2579
Midpoint Dr., Ft. Collins, Colorado. 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, rest rooms, 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.
F. "Lease term" shall mean the period of time as defined in Paragraph
3.A. and shall also mean the period of time as defined in Paragraph 3.B., should
Tenant exercise its rights to extend the Lease.
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2. LEASED PREMISES. The Landlord hereby leases unto the Tenant, and the
Tenant hereby leases from the Landlord, the following described premises:
Space F in Building 3, and all of Building 4 consisting of 23,200
square feet, all as depicted on Exhibit "B" attached hereto.
3. TERM.
A. Base Term. The term of this Lease shall commence at (i) the later of
12:00 noon on June 1, 1991, or (ii) 12:00 noon on the date upon which the Leased
Premises are ready for occupancy (as defined in Paragraph 4.B. of this Lease),
and, unless sooner terminated as herein provided for, shall end at 12:00 noon on
June 1, 1998. Except as specifically provided to the contrary herein, and except
for damages caused by fire or other casualty or other damage which is to be
repaired by or at the expense of Landlord, 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.
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 Rental payments as agreed upon:
DURING LEASE TERM
For Period To Period A Base Monthly
Starting Ending Rent of
-------- ------ -------
June 1, 1991 November 1, 1992 -0-
November 1, 1992 June 1, 1993 $11,116.67 NNN
June 1, 1993 June 1, 1994 $15,466.67 NNN
June 1, 1994 June 1, 1995 $16,433.33 NNN
June 1, 1995 June 1, 1996 $17,400.00 NNN
June 1, 1996 June 1, 1997 $18,366.67 NNN
June 1, 1997 June 1, 1998 $19,333.33 NNN
B. Lease Term Adjustment. If for any reason other than delays caused by
or at the request of the Tenant, the Leased Premises are not ready for the
occupancy on or before June 1, 1991, Tenant's rental obligations and other
monetary obligations (i.e., taxes, utilities, common area maintenance, etc.)
shall be abated in direct proportion to the number of days of delay. In
such event, Base Monthly Rent due for the period starting October 1, 1992, shall
be abated for
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a total number of days equal to the number of days of such delay. It is hereby
agreed that the Leased Premises shall be deemed ready for occupancy on the date
that (i) Landlord has received either a temporary certificate of occupancy or a
certificate of occupancy from the City of Fort Collins; (ii) Landlord has
delivered a true copy of said temporary certificate of occupancy or certificate
of occupancy to the Tenant; (iii) Landlord has delivered to Tenant a certificate
by Landlord's architect that the Leased Premises have been constructed in
accordance with the plans and specifications approved by Tenant and (iv) the
walk-through provided for in Paragraph B of Exhibit "C" of this Lease has been
completed. The Lease Term may be similarly adjusted in the event that items
identified in the walk-through to be conducted pursuant to Paragraph B of
Exhibit "C" would unreasonably interfere with Tenant's use and occupancy of the
Leased Premises.
C. 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 Tenant's prorata share (as defined in
Paragraph 1.E.) of all costs and expenses, (taxes, insurance, trash removal,
Common Area operation and maintenance and like costs and expenses) actually
incurred by the Landlord as a result of the Landlord's ownership and operation
of the Area.
5. SECURITY DEPOSIT. Landlord acknowledges receipt from the Tenant of
the sum of Eleven Thousand One Hundred Sixteen and 67/100 Dollars ($11,116.67)
to be retained by Landlord without responsibility for payment of interest
thereon, until November 1, 1992 (subject to extension pursuant to the terms of
Paragraph 4.B.) as security for performance of all the terms and conditions of
this Lease Agreement to be performed by Tenant. Said sum shall be applied
against the first installment of base monthly rent when such installment becomes
due pursuant to the terms of Paragraphs 4.A. & 4.B. of this lease from and after
the date on which said sum is so applied there shall be no security deposit
required in connection with this lease. 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), and/or for any sum used in any manner to cure
any default of Tenant under the terms of this Lease. 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
general corporate headquarters of Tenant and for Tenant's Research & Development
activities & for Manufacture & Distribution of Products and all related purposes
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 refuge 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
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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. Except for such matters
relating to the construction, maintenance or for zoning matters or changes in
the building code or requirements for occupancy, which matters shall be the
responsibility of Landlord, 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 and that such amendments or supplements
do not materially affect Tenant's business or be at the cost of Tenant.
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 reasonably 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. Landlord shall provide Tenant a minimum of 60 employee
parking spaces reasonably accessible to the Leased Premises.
10. CONTROL OF COMMON AREAS; EXCLUSIVE CONTROL OF LANDLORD. All Common
Areas shall at all reasonable times be subject to the reasonable 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 shale have the right from time to time to establish, modify and enforce
reasonable rules and regulations with respect to the use of said facilities and
Common Areas in a manner which will not increase the total cost to Tenant or
otherwise interfere in any manner with Tenant's business.
11. TAXES.
A. Real Property Taxes and Assessments. The Tenant shall pay to the
Landlord on the first day of each month beginning with the date Tenant accepts
possession of the Leased Premises as additional rent, the Tenant's Prorata Share
of all real estate taxes and special
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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
$1,527.33 until the Landlord receives the first tax statement for the
referred-to properties. Thereafter, the monthly payments shall be based upon
Tenant's prorata share of 1/12th of the prior year's taxes and assessments. Once
each year the Landlord shall determine the actual Tenant's prorata share of
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.
12. INSURANCE.
A. Landlord's Insurance. The Landlord shall procure and maintain such
fire and casualty, 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 in an amount consistent with industry standards 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 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.
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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 12.A. above. Payment shall be made on the first day of each
month as additional rent. The monthly payments for such insurance shall be
$232.00 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 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. Utilities for Tenant shall be separately metered, and
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 (and if, and
only if, Tenant agrees to have Landlord supply) all or any of the utility
services to be used or consumed on the Leased Premises, Tenant shall, within 10
days from presentation of the statement for such utility service, pay to
Landlord, as additional rent under the terms hereof Tenant's prorata share of
the amount of said statement if it represents utility service furnished to the
Leased Premises only or prorata (___%) percent of said statement if it includes
utility service to an area greater than the Leased Premises. Under no
circumstances shall Tenant be responsible for duplicate payment of utilities
charges. Said proration of utilities shall be reviewed by Landlord and Tenant at
the end of the first year of occupancy, at which time Landlord and Tenant shall
mutually 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, Mountain Bell 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 bill the Tenant therefore, and the Tenant shall promptly reimburse the
Landlord therefore. The parties acknowledge that Tenant's business relies
heavily on the supply of the basic utilities, and, if the same are not supplied
due to Landlord's negligence, then rent shall abate during such period and, if
such continues for longer than 24 hours, the same shall be deemed a default by
Landlord hereunder.
In the event the utility company supplying water and/or sewer to the
Leased Premises determine that an additional service fee, impact fee, and/or
assessment, or any other type of payment or penalty is necessary due to Tenants
use and occupancy of the Building, nature of operation and/or consumption of
utilities, said expense shall be borne solely by the Tenant. Said
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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.
A. Except as herein otherwise specifically provided for, Landlord shall
keep and maintain the roof and exterior of the Building and shall maintain and
service the Area of which the Leased Premises are a part in good repair and
condition as a Class A Industrial Park Plaza. Tenant shall repair and pay for
any damage to roof, foundation and external walls caused by Tenant's action,
negligence or fault.
B. Heating and Air Conditioning Systems. Landlord shall maintain in
good working condition the heating and air conditioning systems for the Leased
Premises. Without limiting the foregoing, Landlord shall maintain temperature
levels between 66(degree) and 75(degree)F at all times in the laboratory area.
Landlord shall contract for the normal maintenance of the heating and air
conditioning systems four times per year, on a quarterly basis. The cost for
such normal maintenance shall be paid for by the Tenant within fifteen (15) days
of written notification by the Landlord.
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. After 270 days from commencement of this Lease,
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. After 270 days from commencement of this Lease,
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, B and C of this Paragraph 15. 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.
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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
negligence of Tenant.
E. Cutting Roof. Tenant must obtain in writing the Landlord's approval
prior to making any roof penetrations after Tenant occupancy. 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.
F. Glass and Doors. The repair and replacement of all glass and doors
on the Leased Premises shall be the responsibility of the Tenant unless
necessitated by the actions or inaction of Landlord or its agents, whereupon
Landlord shall be responsible for repair or replacement. 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. Inspection of Leased Premises. By taking possession of the Leased
Premises, Tenant acknowledges that it has inspected the Leased Premises and
accepts the Leased Premises in the condition that they exist as of the date of
such possession, including but not limited to all mechanical, plumbing and
electrical systems and the conditions of the interior except any incomplete or
uncorrected items identified on the "punch list" prepared pursuant to the terms
of Paragraph B of Exhibit "C" to this Lease. Notwithstanding the foregoing,
Landlord warrants all mechanical, plumbing and electrical systems against
defects in materials or workmanship for a period of two hundred seventy (270)
days, beginning with the commencement of the Lease Term.
I. 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, ordinary
maintenance and ordinary 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; insurance; trash removal; security to protect and
secure the Area; common entrances, exits and lobbies of building; all common
utilities, including water to maintain landscaping; replanting in order to
maintain a smart appearance of
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landscape areas; supplies; depreciation on the machinery and equipment used in
such operation, maintenance and repair; the cost of personnel to implement such
services; 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 upward or
downward, depending on the actual costs for the preceding twelve (12) 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 $812.00. 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. In no
event shall an upward annual adjustment exceed fifteen (15) percent.
17. INSPECTION OF AND RIGHT OF ENTRY TO LEASED PREMISES-REGULAR,
EMERGENCY, RELETTING. Upon reasonable notice, 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 abate 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.
Any information pertinent to Tenant's business viewed or heard of as the result
of any such entry by Landlord will be held in strict confidence by Landlord.
18. ALTERATION-CHANGES AND ADDITIONS-RESPONSIBILITY. Unless the
Landlord's approval is first secured in writing, which approval shall not be
unreasonably withheld by Landlord, the Tenant shall not install or erect inside
Permanent 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 and the cost
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Landlord may also of Tenant. Landlord may require adequate security from Tenant
assuring no mechanic's 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
mechanic's liens. 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. Landlord agrees to the placement of no more than five exterior signs
consistent with the sign criteria shown on Exhibit "D." Tenant shall, during the
entire Lease Term, maintain Tenant's signs in a good condition and repair at his
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, and the 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; provided,
however, such construction costs shall not be passed to Tenant, and Tenant's
common area maintenance charges shall not increase thereby. 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 which materially affect Tenant's business operations and/or the
Leased Premises.
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, 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 mutually determined by Landlord and Tenant, an
appropriate abatement of reduction of the rent shall be allowed for the
unoccupied portion of the Leased Premises until repair thereof shall be
substantially completed. If Landlord elects to repair or restore the Leased
Premises, Landlord shall begin such repair or restoration within 30 days
following the occurrence of such damage, or upon the earlier receipt by Landlord
of insurance proceeds therefor. If the Landlord elects
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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. Rent shall abate during any such notice period.
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 the land or
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, this Lease shall terminate as of the earlier of the entry of
an order of condemnation by a court of competent jurisdiction or the date
possession is taken by the condemning person or authority, and Tenant shall
thereupon be absolved from the obligation to pay any further rent under this
Lease (except to the extent of any past due rental obligations). In the event of
such termination, Tenant shall have a reasonable period of time to vacate the
Leased Premises to the extent that Landlord has the right, power and authority
to grant such additional time. 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, nor shall the foregoing be
construed as precluding Tenant from prosecuting any claim directly against the
condemning person or authority for the value of its property or for moving,
relocation expenses or other claims, provided such claims do not reduce or
adversely affect the amount of the Landlord's award or settlement.
Notwithstanding the extent of the Landlord's right and authority pursuant to the
foregoing provisions, Landlord agrees to provide notice to Tenant, as soon as
practicable, of any notification received by Landlord from any governmental
agency or other authority of the intent to acquire the Leased Premises or any
portion thereof by eminent domain. Landlord furthermore agrees to exercise good
faith efforts, with respect to any negotiated settlement, to provide in such
settlement for not less than one hundred eighty (180) days' advance notice to
Tenant of the termination of this Lease.
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, which consent shall not be unreasonably withheld. Except as otherwise
agreed to by landlord in any consent, no such assignment or subletting if
approved by the Landlord shall relieve Tenant of any of the total rental
obligations hereunder. Tenant shall have the absolute right to transfer and
assign this Lease to any affiliate of Tenant, including, without limitation, any
third party which purchases a majority of the stock of the Tenant or a majority
of the assets of Tenant's Company.
24. WARRANTY OF TITLE. Subject to the provisions of Paragraphs 25, 26
and 27 hereof, Landlord covenants it has good right to lease the Leased Premises
in the manner described
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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 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 (but not through, over or on the Leases
Premises) 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, its 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, or negligent failure to act in
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which event Landlord shall indemnify and hold harmless Tenant, its agents and
employees from any such loss or damage.
30. INTEREST ON PAST DUE OBLIGATIONS. Any amount due to Landlord not
paid when due shall bear interest at two (2%) percent per month from fifteen
(15) days after the due date until paid. Payment of such interest shall not
excuse or cure any default by Tenant under this Lease.
31. HOLDING OVER-150% LAST MONTH'S RENT. If Tenant shall remain in
possession of the Leased Premises for a period of 90 days after the termination
of this Lease, whether by expiration of the Lease Term or otherwise, without a
written agreement as to such possession, then Tenant shall be deemed a
month-to-month Tenant. The rent rate during such holdover tenancy shall be
equivalent to the 150% of the monthly rent paid for the last month of tenancy
under this Lease, excluding any free rent concessions which may have been made
for the last 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. Nothing
contained in this Paragraph 31 shall be construed as an extension of this lease.
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. STATUS STATEMENT OF LEASE. Tenant agrees upon request from time to
time from Landlord to execute, acknowledge and deliver to Landlord a statement
in writing certifying that this Lease is unmodified and in full force and effect
(or if there have been modifications, that the same are in full force and effect
as modified and stating the modifications); that the Tenant has accepted and
occupied the Leased Premises; that the Tenant has not paid rent in advance; that
Tenant is not aware of prior assignments of this Lease by Landlord; that Tenant
has no offsets against the rent or claims against Landlord; the amount of
monthly rent due; and, the date to which rent and other charges have been paid.
34. 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 2579 Midpoint Dr, Fort Collins, CO 80525 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 4875 Pearl East Circle, Suite 300, Boulder,
CO 80301 or at such other place as Landlord 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.
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35. 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.
36. CONTROLLING LAW. The Lease, and all terms hereunder shall be
construed consistent with the of the State of Colorado. Any dispute resulting in
litigation hereunder shall be resolved in court proceedings instituted in
Larimer County, Colorado and in no other jurisdiction.
37. 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.
38. 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.
39. DEFAULT-REMEDIES OF LANDLORD.
A. The occurrence of any of the following shall constitute a default by
Tenant under this Lease:
(i) Failure to make due and punctual payment of rent, or any other
amounts required to be paid hereunder, and such failure continues for
fifteen (15) days following written notice thereof from Landlord to
Tenant (provided that failure to make due and punctual payment of rent
where abatement thereof is expressly permitted by the terms of this
Lease shall not constitute a default); nor shall there be a default
when, due to damage or destruction, the Leased Premises are
untenantable; or
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(ii) Neglect or failure by Tenant to perform or observe any other term,
covenant or condition of this Lease and failure by Tenant to remedy
same within thirty (30) days following receipt of written notice from
Landlord to Tenant specifying the alleged default; provided that if the
default is of such a nature that it cannot reasonably be cured within
said thirty (30) day period, Tenant shall not be considered in default
under this Lease if Tenant commences to cure such default within said
thirty (30) day period and diligently continues thereafter to complete
said cure; or
(iii) Adjudication of the Tenant as bankrupt or insolvent, or filing by
or against Tenant of a petition in bankruptcy or for reorganization or
for the adoption of any arrangement under the Bankruptcy Code which is
not dismissed within forty-five (45) days after filing; application is
made for the appointment of a receiver for the Tenant's business or
property; or assignment by Tenant of its property for the benefit of
its creditors; or
(iv) The abandonment of the Leased Premises by Tenant for a period of
time in excess of twenty-one (21) consecutive days.
B. If Tenant shall commit any default under the terms of this Lease (as
described in subparagraph A, above) to be kept and/or performed by Tenant,
Landlord may upon three (3) days' prior written notice to Tenant, 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 rental, and expenses,
commissions and charges paid by Landlord in reletting the Leased Premises. Any
such reletting may be for the remainder of the Lease Term or for a longer or
shorter period, in the discretion of Landlord. 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 taken by
Landlord to obtain possession of the Leased Premises and/or to recover any
amount due to action taken 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 the Landlord to terminate this Lease Agreement. If
the Leased Premises shall be reoccupied by the Landlord, then, from and after
the date of repossession, the fair market value of such occupancy shall be used
to mitigate Landlord's damages hereunder. If the Leased Premises are reoccupied
by the Landlord pursuant
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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 which have been abandoned by Tenant may be retained by
Landlord. For purposes hereof any fixtures, additions, furniture and the like
remaining on the Leased Premises five (5) days after reletting or possession by
Landlord shall be conclusively deemed to have been abandoned by Tenant. 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
upon fifteen (15) days' prior written notice to Tenant, 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.
C. 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 (except as may be required by
Colorado law), 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.
D. In addition to the remedies granted to Landlord by the terms hereof,
Landlord shall have available any and all rights and remedies available under
the laws of 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 all 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 Landlord
may deem 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 other covenants herein contained or of any of the rights of Landlord to
any remedies herein given.
E. None of the provisions of this Paragraph 39 shall be construed as
constituting a waiver by Tenant of any notice to which Tenant may be entitled
pursuant to Colorado law.
F. Acceleration of Rent. If Tenant shall, for any reason, vacate the
Leased Premises for a period of time in excess of twenty-one (21) consecutive
days, 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, subject to reduction to reflect a discount to present value (to the
date payment is made) of the sums payable and further subject to reduction to
reflect a credit for any amounts received by Landlord upon reletting the Leased
Premises, but only to the extent that such amount exceed the costs incurred by
the Landlord in retaking possession, reletting the Leased Premises and
repairing, improving, altering or otherwise making the Leased Premises ready for
such
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reletting. Landlord shall make reasonable efforts to relet the Leased Premises
if Tenant vacates the Leased Premises before the current expiration date
provided that "reasonable efforts" shall not be construed as requiring Landlord
to incur costs to repair, improve, alter or otherwise make the Leased Premises
ready for such reletting.
G. Landlord Defaults. Landlord shall be in default of this Lease (i) if
Landlord fails to discharge, as and when due, any obligations imposed by a
mortgage or deed of trust to which this Lease is subordinate, or (ii) if
Landlord fails to pay any taxes, assessments or utilities affecting the Leased
Premises or the Area for which the Landlord is responsible under the terms of
this Lease, or (iii) if Landlord fails to make any repairs or undertake any
maintenance for which Landlord is responsible under the terms of this Lease,
provided that Landlord shall not be so in default unless it fails to cure any
such default within thirty (30) days after written notice thereof is given by
Tenant to Landlord, or (iv) with respect to defaults of a nature which cannot be
reasonably cured within thirty (30) days, Landlord has begun attempts to cure
such default and has continued with reasonable diligence to cure such default
thereafter). In the event of such default by Landlord, Tenant may (but shall not
be obligated to) discharge such obligations by making such payments or
accomplishing such repairs or maintenance, as may be appropriate. Any sums so
advanced by Tenant (together with interest thereon at the rate of twelve percent
(12% per annum)) shall be payable to Tenant by Landlord upon five (5) days'
written notice (with supporting documentation). If Landlord fails to reimburse
Tenant upon such notice, Tenant shall have the right to withhold from the next
rental payment(s) due the same owed to Tenant until Tenant is reimbursed in full
for all advances (with interest).
Tenant shall also provide written notice of any default to the holder of record
of any first mortgage or deed of trust covering the Leased Premises if such
holder has provided written notice to Tenant of the existence of its first
mortgage or deed of trust, which notice shall be given simultaneously with any
notice to Landlord hereunder. In the event Tenant makes any payment on account
of Landlord's default in payment of the obligations secured by a mortgage or
deed of trust to which this Lease is subordinate, Tenant shall not in such event
by subrogated to any lien, interest or right of the holder of any such mortgage
or deed of trust unless Tenant pays such mortgage or deed of trust in full and
receives an assignment thereof, except under circumstances where Tenant has
cured or redeemed the property in connection with foreclosure proceedings (but
which cure shall not be deemed to subordinate the lien of the mortgage or deed
of trust so cured to any rights of Tenant).
40. 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.
41. 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, (i) to make an administrative charge of $100.00 or three times the
face value of the check, bank draft or negotiable instrument,
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whichever is smaller, and (ii) at Landlord's sole option, to require Tenant to
make all future rental payments in cash or cashier's check.
42. HAZARDOUS MATERIALS AND ENVIRONMENTAL CONSIDERATIONS.
A. Tenant covenants and agrees that Tenant and its agents, employees,
subcontractors and invitees shall comply with all Hazardous Materials Laws (as
hereinafter defined). Tenant furthermore 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 from the Leased Premises, except in full compliance with any
applicable Hazardous Materials Laws. Landlord expressly acknowledges that Tenant
is engaged in the business of research and development which necessarily
involves the use of certain organic compounds and chemicals which may themselves
be, or may produce certain byproducts which may be considered Hazardous
Materials as follows: Methenol (100 liters/month), Acetonitrile (50
liters/month), Ethyl Acetate (10 liters/month), Chloroform (10 liters/month),
N-methylpyrrolidone (25 liters/month), Methylene chloride (4 liters/month),
Xylene (4 liters/month), Toluene (1 liter/month), Acetone (10 liters/month),
Tetrahydrofuron (4 liters/month), Dimethyl sulfoxide (2 liters/month),
I-propanol (1 liter/month), and Isopropanol (10 liters/month). None of the
provisions of this Lease shall be construed as prohibiting the lawful use by
Tenant of said chemicals or compounds in connection with its operations on the
Leased Premises. 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 Tenants's sole expense, cure such
breach by taking all action prescribed by and applicable Hazardous Materials
Laws or by any governmental authority with jurisdiction over such matter.
B. Landlord acknowledges that Tenant has informed Landlord that Tenant
intends to use, generate, handle, store or dispose of certain Hazardous
Materials, on or about or transport same from, the Leased Premises. Tenant shall
inform Landlord of any additional Hazardous Materials that it intends to use,
generate, handle, store or dispose of, on or about or transport from, the Leased
Premises and 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.
Tenant shall promptly take any and all necessary preventive and/or remedial
action in response to the presence, storage, use, disposal, transportation or
discharge of any Hazardous Materials on, under, or about the Leased Premises and
shall take such preventive or remedial action in good faith so as to minimize
any impairment to the Leased Premises and any adjoining premises owned by
Landlord. In the event Tenant undertakes any remedial action with respect to any
Hazardous Materials on, under or about the Leased Premises, Tenant shall conduct
and complete such remedial action (i) in compliance with all applicable
Hazardous Materials Laws and (ii) in accordance with the lawful
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orders and directives of all federal, state, and local governmental authorities
or political subdivisions asserting jurisdiction over the Leased Premises.
C. Tenant shall indemnify and hold Landlord harmless from and against
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, conditions, or any cleanup, removal or restoration work
required by any federal, state or local governmental agency, attorneys' fees,
consultant fees and expert fees) which arise as a result of covenants or any
other violation of Hazardous Materials Laws by Tenant. The foregoing
indemnification shall also accrue to the benefit of the employees, agents
officers, directors and/or partners of Landlord.
D. Upon termination of this Lease (unless by purchase of the Leased
Premises by Tenant) and/or vacation of the Leased Premises, Tenant covenants and
agrees that it shall properly remove and dispose of all Hazardous Materials from
the Leased Premises. Landlord shall have the right, but not the obligation, to
cause an environmental audit report to be prepared by a professional consultant
satisfactory to Landlord in order to determine whether the Leased Premises and
surrounding areas have been subjected to environmental contamination or
violation of any Hazardous Materials Laws caused by Tenant's use and occupancy
of the Leased Premises. Without limiting Tenant's obligations with respect to
remediation if Landlord causes such audit to be conducted by the earlier of
sixty (60) days following termination of this Lease or occupancy of the Leased
Premises by a subsequent Tenant, and if such audit discloses that further
remediation is required (the cost of which remediation exceeds Ten Thousand
Dollars ($10,000.00)), Tenant shall reimburse Landlord for the actual cost of
obtaining such audit report but not to exceed Five Thousand Dollars ($5,000.00).
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," "hazardous materials," "extremely hazardous waste," "restricted
hazardous waste," "toxic substances," "regulated substances," 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 25-15-101, 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 or Hazardous Materials, or to
industrial hygiene or the environmental conditions on, under or about the Leased
Premises. Said term shall be
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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. With the exception of any holding tanks or barrels required by the
City of Fort Collins or other appropriate governmental authority (or as
otherwise required by any other applicable Hazardous Materials Laws) (to which
Landlord hereby consents), 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 or ordinances and safety measures or financial responsibility
requirements.
G. All obligations of Tenant under this Paragraph 42 shall survive the
expiration of this Lease or its earlier termination for any reason.
H. Notwithstanding the foregoing, the parties acknowledge and agree
that Tenant shall have no liability with respect to Hazardous Materials located
in, on or under the Leased Premises prior to commencement of the term of this
Lease nor for violations of Hazardous Materials Laws which occurred prior to
commencement of this Lease.
In addition, Landlord represents and warrants to the Tenant that, to
the best of Landlord's knowledge, after inquiry:
(i) The Leased Premises are not the subject of any pending or
threatened claim, lawsuit, agency proceeding or other legal or
administrative action or investigation arising out of or in connection
with any Hazardous Materials Laws or purported violation thereof;
(ii) no Hazardous Materials have been stored in, on or under the Leased
Premises or generated, stored or disposed therein or thereon; and
(iii) as of the date of this Lease, the Leased Premises are not in
violation of any Hazardous Materials Laws; and no governmental agency
has issued any notice claiming that the Leased Premises or any
condition therein or thereon violates any Hazardous Materials Laws.
43. ENTIRE AGREEMENT. It is expressly understood and agreed by and
between the parties hereto that this Lease sets forth all the promises,
agreements, conditions and understandings between Lessor and/or its agents and
Lessee relative to the Leased Premises and that there are no promises,
agreements, conditions or understandings either oral or written, between them
other than are herein set forth.
44. ESTOPPEL CERTIFICATES. Within no more than five days after receipt
of written request, the Tenant shall furnish to the owner a certificate, duly
acknowledged, certifying, to the intent true:
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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 been 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; and
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" - Sign Code Obligations
Exhibit "E" - Additional Terms and Conditions
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.
WITNESS: LANDLORD:
GB VENTURES
________________________________
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As to Landlord By_________________________
________________________________
As to Landlord
WITNESS: TENANT:
ATRIX LABORATORIES, INC.
________________________________
As to Tenant By_________________________
________________________________
As to Tenant
The W.W. Reynolds Companies
R. December 3, 1990
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LEASE ADDENDUM
This Lease Addendum is made and entered into this ____ day of May 1996,
by and between GB Ventures ("Landlord") and Atrix Laboratories, Inc. ("Tenant")
as a supplement to the Lease Agreement by and between Landlord and Tenant dated
May 11, 1991.
PREMISES: The Leased Premises presently consist of
approximately 23,200 square feet and are
comprised of Suite F of Building 3 and all
of Building 4 of Plum Tree Plaza, Fort
Collins, Colorado.
The new Leased Premises consist of
approximately 24,580 square feet and are
comprised of Suites E and F of Building 3
and all of Building 4 of Plum Tree Plaza,
Fort Collins, Colorado.
To further clarify, Tenant shall rent an
additional 1,380 square feet adjacent to its
present Premises. Tenant shall lease the
additional space as is.
Tenant shall begin paying for the additional
square footage on June 1, 1996 and continue
through the end of the original Lease Term,
i.e., June 5, 1998.
BASE RENTAL RATE: The base monthly rental rate for the
additional square footage shall be:
June 1, 1996 to June 1, 1997 $948.75 per
month NNN
June 1, 1997 to June 1, 1998 $977.50 per
month NNN
NNN: As called for in the original Lease,
Tenant shall be responsible for the prorated
amount for common area maintenance,
insurance, taxes and building water.
OTHER TERMS AND
CONDITIONS: All other terms and conditions of the Lease
Agreement dated May 11, 1991 which is not
superseded by this Lease Addendum shall
remain the same.
CONTINGENCY: This Lease Addendum shall be contingent upon
receiving a Lease Termination Agreement by
and between Landlord and Christian
Chiropractors by May 10, 1996. If such Lease
Termination Agreement is not executed this
Lease Addendum shall be null and void.
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LANDLORD: TENANT:
GB VENTURES ATRIX LABORATORIES, INC.
By______________________________ By_________________________________
________________________________ ___________________________________
Date Date
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