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EXHIBIT 10.27
LEASE AGREEMENT
This
Lease Agreement is made as of the 25the day of June, 2005, by
and
between ASPEN INDUSTRIAL PARK PARTNERSHIP, LLLP, a Colorado limited
liability
limited partnership ("Landlord"), and MKS INSTRUMENTS, INC., a
Massachusetts
corporation authorized to do business in Colorado ("Tenant").
PREMISES
Landlord and Tenant entered into a Lease Agreement for 5360
Sterling Drive,
Boulder, Colorado on August 9, 2000, which will expire by its terms
on August
31, 2005. Landlord and Tenant desire to replace the August 9, 2000
Lease
Agreement in its entirety and replace it with the within Lease
Agreement.
I. LEASE OF LEASED PREMISES
A. Lease.
1.
Landlord leases to Tenant and Tenant leases from Landlord the
entire
building located at 5360 Sterling Drive, Boulder, Colorado,
situated on Lot 3,
Aspen Industrial Park Subdivision, City of Boulder, Colorado. The
entire
building is hereafter referred to as the "Leased Premises," or the
"Building."
2.
The Leased Premises contain approximately 38,056 square feet of
rentable floor area which Landlord and Tenant agree is the floor
area on which
the Rent and Operating Expenses set forth in Article III are
based.
II. TERM
A. Commencement, Renewal and Termination of Lease.
The
lease term shall commence at 12:01 a.m. on July 1, 2005, and,
unless
earlier terminated, as herein provided, the term of the Lease shall
be for ten
years from the commencement date. The sum of $43,164.18 (included
in monthly
payments under the prior lease) shall be applied against the
immediately
succeeding monthly rents until this amount is exhausted.
B. Possession.
1.
Possession shall be delivered on the commencement date of the
Lease.
Tenant's
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taking possession of the Leased Premises on commencement of the
term shall
constitute Tenant's acknowledgement that the Leased Premises are in
good
condition and that all provisions of the existing lease under which
Tenant is
holding over shall be deemed replaced by the applicable terms of
this Lease
Agreement.
C. Renewal.
1.
If Tenant is in compliance with all terms and conditions of the
Lease
Agreement and upon not less than twelve (12) months notice prior to
the end of
the ten year lease term, Tenant provides written notice to Landlord
of its
desire to negotiate the terms and conditions of a new lease for the
Leased
Premises, then upon receipt of such notice, Landlord and Tenant
agree to
negotiate the terms and conditions of a new lease in good faith for
a period of
45 days. If Landlord and Tenant are unable to agree on the terms
and conditions
of a new lease for the Leased Premises by the end of 45 days then
Landlord's
obligation hereunder will terminate.
D. Termination.
1.
Tenant shall have the right to terminate the Lease at the end of
the
sixtieth month (60th) of the ten year lease term and if not so
terminated then
Tenant shall have the right to terminate the Lease at the end of
the
eighty-fourth month (84th) of the lease term provided Tenant
notifies Landlord
of its intent to terminate by written notice to Landlord twelve
months prior to
the designated termination date. As a condition of said
termination, Tenant
shall pay to Landlord on or before the termination date all of
Landlord's
unamortized costs (using a 8% per annum amortization rate)
including; leasing
costs, reimbursement of tenant improvement payments ($50,000) paid
by Landlord,
commissions ($142,710), reasonable attorneys fees relating to the
releasing of
the Premises, plus three (3) months of Monthly Base Rent under the
applicable
rent schedule.
III. RENT AND OPERATING EXPENSES
A. Base Rent.
1.
Base rent for the first five years of this Lease, shall be $10.50
a
square foot for 38,056 square feet, for a Base Rent of $1,997,940
for the first
five years.
2.
If Tenant does not terminate the Lease at the end of the first
five
years, then Base Rent for the sixth year will be $10.75 per square
foot
($409,102 per annum), Base Rent for the seventh year will be $11.00
per square
foot ($418,616 per annum), and Base Rent for the eighth year will
be $11.25 per
square foot ($428,130 per annum).
3.
If Tenant does not terminate the Lease at the end of eighty-four
months,
then Base Rent for the ninth year will be $11.50 per square foot
($437,644 per
annum) and Base Rent for the tenth year will be $11.75 per square
foot ($447,158
per annum).
4.
Aggregate Base Rent for the full ten year term of the Lease is
$4,138,590.00.
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5.
All Base Rent payable hereunder shall be paid in equal monthly
installments ("Monthly Base Rent"), without setoff or deduction, in
advance, on
or before the first day of each month during the term of this Lease
at the
address of the Landlord set forth in Article XXII, or such other
address or
addresses as Landlord may hereafter determine by notice to the
Tenant.
6.
Rent for any period during the term hereof which is for less than
one
(1) month, if any, shall be a prorated portion of the monthly
installment
herein, based on a thirty (30) day month.
B. Operating Expenses.
1.
Tenant shall pay one hundred percent (100%) of the operating
expenses
paid or incurred by Landlord for the operation and/or maintenance
of the Leased
Premises.
2.
The term Operating Expenses is defined as direct costs of operation
and
maintenance, as determined by standard practices, and shall include
the
following costs by way of illustration, but not be limited to: real
property
taxes and assessments for the Leased Premises and Lot 2; management
fee equal to
one percent (1%) of annual Base Rent; water and sewer charges;
security systems
and alarms; insurance premiums; utilities; janitorial services;
snow removal;
labor; window cleaning; air conditioning and heating maintenance;
elevator
maintenance; supplies; materials, equipment, and tools; including
maintenance,
costs, and upkeep of all landscaping, including Lot 3, parking
areas, sidewalks,
and all Building repairs except repair of the roof or
structure.
3.
Operating Expenses shall not include depreciation on the Building,
loan
payments, executive salaries or real estate brokers' commissions.
All Operating
Expenses over which Landlord has any control shall be reasonable
and competitive
with such costs and expenses in similar buildings in Boulder,
Colorado.
C. Effect of Termination. Except as expressly provided to the
contrary herein,
in the event this Agreement is terminated by either party in
accordance with the
terms of this Agreement, no further Base Rent or operating costs
shall be
payable by Tenant with respect to any period beginning on the date
of the later
of (i) such termination and (ii) Tenant's vacancy of the
Premises.
IV. TENANT'S CONSTRUCTION
Tenant shall have the right to do all of its own construction,
subject only
to Landlord's reasonable approval of plans for either the initial
premises, or
future renovation work. Tenant shall not be charged any landlord
supervisory,
management, or review fees for any of Tenants initial, ongoing or
future
construction. All plans submitted by the Tenant for initial work,
as well as
subsequent renovations shall be approved or deemed approved within
ten (10)
business days by landlord. Landlord shall make any comment or
request any change
immediately after submission of plans, further, Landlord shall
notify Tenant of
any item that Landlord will want restored.
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IV. TENANT IMPROVEMENT ALLOWANCE
Landlord will provide Tenant with fifty thousand dollars ($50,000)
as an
allowance for tenant improvements. Tenant shall have the right to
apply
Landlord's contribution towards both hard and soft costs such as
design fees,
engineering fees, furniture and relocation costs. Any unused
portion of the
fifty thousand dollar contribution can be used by Tenant for
payment of rent.
V. CAPITAL ITEMS, LANDLORD REPAIRS
Landlord warrants for the ten (10) year term of the lease and any
agreed upon
extensions of the lease that the roof, structure and mechanical
systems such as
HVAC units, boilers (related to the building) shall have a useful
life of at
least the length of the lease. Should any or these items fail and
need to be
repaired or replaced during the term of the lease, the Landlord, at
its sole
cost and expense shall bear the cost to replace them.
VI. ADA & LIFE SAFETY
Landlord shall be responsible for the costs for compliance of the
premises, base
building, common areas, bathrooms, drinking fountains and elevators
related to
the Americans with Disabilities Act (ADA), and any and all other
codes related
to life safety.
VII. TAXES - PERSONAL PROPERTY RESPONSIBILITY
Tenant shall be responsible and pay for 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.
VIII. USE
A. Permitted Uses.
Tenant shall use the Leased Premises for any manufacturing and
office-warehouse use permitted by the City of Boulder on such
Leased Premises.
B. Limitations on Use.
1.
Tenant shall not do, bring, or keep anything in or about the
Leased
Premises that will cause a cancellation of any insurance covering
the Leased
Premises. If the rate of any insurance carried by Landlord is
increased as a
result of Tenant's use, upon timely notice by Landlord, Tenant
shall pay to
Landlord within 10 days before the date Landlord is obligated to
pay a premium
on the insurance, a sum equal to the difference between the
original premium and
the increased premium.
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2.
Tenant shall comply with all laws concerning the Leased Premises
or
Tenant's use of the Leased Premises. Landlord warrants conformance
with all such
laws at the commencement date of this Lease.
3.
Tenant shall not use the Leased Premises in any manner that
will
constitute waste or nuisance in the Building, nor shall Tenant
overload the
floors or any part of the Leased Premises in a manner exceeding the
floor
loading restrictions of the Uniform Building Code as adopted by the
City of
Boulder.
IX. MAINTENANCE
A. Landlord's Maintenance.
Landlord, at its cost, shall maintain, in good condition, (i)
the
structural parts of the Building, which structural parts include
only the
foundations, bearing and exterior walls (including glass and
doors),
sub-flooring, and roof; (ii) the unexposed electrical, plumbing,
and sewage
systems, including, without limitation, the lighting fixtures
installed by
Landlord (but not including replacement of bulbs, tubes or
ballasts) and
including those portions of the systems lying outside the Leased
Premises; and
(iii) window frames, gutters, and roof drains on the Building,
provided,
however, if the maintenance or repairs are required in part or in
whole by the
neglect, fault or omission of any duty by the Tenant, its agents,
servants,
employees, and invitees, the Tenant shall, at Tenant's sole cost
and expense,
make such repairs and maintenance as are necessary to restore the
Leased
Premises to a good condition.
B. Tenant's Maintenance.
Except as provided in the previous subparagraph, Tenant, at its
cost, shall
maintain, in good condition, all portions of the Leased Premises,
including,
without limitation, all of Tenant's personal property, carpet, and
flooring.
Tenant shall be liable to any damage to the Building resulting from
the acts or
omissions of Tenant or its authorized representatives.
X. ALTERATIONS
A. Tenant shall not make any structural or exterior alterations to
the Leased
Premises without Landlord's consent. Tenant, at its cost, shall
have the right
to make non-structural alterations to the interior of the Leased
Premises as
part of its initial tenant finish that Tenant requires in order to
conduct its
business on the Leased Premises. Tenant shall submit reasonably
detailed final
plans and specifications and working drawings of the proposed
Tenant finish
fifteen (15) days before it intends to commence the alterations.
Plans submitted
will be objected to by Landlord within ten (10) days after
submission and shall
be deemed approved if there are no objections. The alterations
shall be approved
by all appropriate governmental agencies and all applicable permits
and
authorizations shall be obtained before commencement. Any
alterations made shall
remain on and be surrendered with the Leased Premises on expiration
or
termination of the term of this Lease, unless otherwise agreed in
writing.
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XI. MECHANIC'S LIENS
A. Tenant's Obligations.
Tenant shall pay all costs for construction done by it or caused to
be done
by it on the Leased Premises as permitted by this Lease. Tenant
shall keep the
Leased Premises, the Building, other improvements, and the Land
free and clear
of all mechanic's liens resulting from construction by or for
Tenant. Tenant
shall have the right to contest the correctness or validity of any
such lien if,
upon demand by Landlord, Tenant procures a bond in an amount equal
to one and
one-half times the amount of the claim of lien or makes some other
financial
arrangement acceptable to Landlord to protect Landlord's interests.
Landlord
shall require a bond, or other financial arrangement with Tenant,
only at such
time that the lien claimant commences a foreclosure action on the
lien. Tenant
shall be responsible for removing any filed liens affecting the
property from
the real estate records.
B. Tenant's Contractors.
Landlord shall have the right to require Tenant's contractor(s) to
furnish
to both Tenant and Landlord adequate lien waivers on work
completed. Landlord
reserves the right to post notices in Leased Premises that Landlord
is not
responsible for payment of work performed and that Landlord's
interest is not
subject to any lien.
XII. UTILITIES
Tenant shall pay all gas and electric utilities and services
supplied to
the Building, together with any taxes thereon. Tenant shall make
all
arrangements for and pay all costs of telephone services furnished
to or used by
it. The Building has separate meters in various locations which can
be utilized
if, during the term of the Lease, Tenant, with Landlord's approval,
sublease any
portion of the Building using a separate meter.
XIII. LIABILITY, INDEMNITY AND INSURANCE
A. Indemnity.
Each
Party will indemnify and hold the other Party harmless from and
against any and all claims, losses, expenses, costs, judgments,
and/or demands
arising from the conduct of the indemnifying Party in or about the
Leased
Premises and/or on account of any operation or action by such Party
and/or from
and against all claims arising from any breach or default on the
part of such
Party or any act of negligence of such Party, 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.
Each Party's
obligation to indemnify and hold the other Party harmless shall
include the
indemnified Party's reasonable attorney's fees, and shall be
limited to the sum
that exceeds the amount of insurance proceeds, if any, received by
the
indemnified Party.
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B. Public Liability and Property Damage Insurance.
Tenant, at its costs, shall maintain general liability insurance,
with
liability limits of not less than $1,000,000.00 for each occurrence
of bodily
injury and $200,000.00 property damage, insuring against all
liability of Tenant
and its authorized representatives arising out of any connection
with Tenant's
use or occupancy of the Leased Premises. All general liability
insurance shall
ensure performance by Tenant of the indemnity provisions of this
Article. Both
parties shall be named as co-insureds, and the Tenant shall deliver
certificates
of insurance to the Landlord.
C. Tenant's Fire Insurance.
Tenant, at its cost, shall maintain on all of its personal property
in, on
or about the Leased Premises, a policy of standard fire and
extended coverage
insurance, to the extent it deems necessary and appropriate. Tenant
understands
that Landlord has no insurance covering Tenant's personal
property.
D. Fire Insurance on Building and Other Improvements.
Landlord shall maintain on the Building and other improvements in
which the
Leased Premises are located a policy of standard fire and all risks
coverage
insurance to the extent of at least one hundred percent (100%) of
full
replacement value. The insurance policy shall be issued in the
names of
Landlord, and Landlord's lender, as their interests appear. The
insurance policy
shall also provide coverage for rental value insurance, including
all operating
expenses, for a period of one year. The insurance policy shall
provide that all
proceeds shall be made payable to Landlord. The cost of such
insurance shall be
passed on to Tenant as part of the Direct operating expenses for
the Building
pursuant to Article IV.
E. Waiver of Subrogation.
The
parties release each other, and their respective authorized
representatives, from any claims for damages to any person or to
the Leased
Premises, and to the fixtures, personal property, Tenant's
improvements, and
alterations of either Landlord or Tenant in or on the Leased
Premises that are
caused by or result from risks insured against under any insurance
policies
carried by the parties and in force at the time of such damage.
Each party shall
cause each insurance policy obtained by it to provide that the
insurance company
waives all rights of recovery by way of subrogation against either
party in
connection with any damage covered by any policy.
F. Other Insurance Requirements.
All
the insurance required under this Lease shall be issued with
insurance
companies authorized to do business in the State of Colorado, and
the Tenant
will endeavor to notify the Landlord within thirty (30) days'
written notice
before of any applicable policy terminations.
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XIV. PROTECTIVE COVENANTS
Tenant shall faithfully observe and comply with the covenants,
conditions,
and restrictions set forth in a Declaration of Covenants of Aspen
Industrial
Park Subdivision recorded with the Boulder County Clerk and
Recorder on November
11, 1979 (the "Covenants") as Reception No. 363409, as amended.
Tenant hereby
acknowledges having received a copy of such Covenants with the
execution of this
Lease. Landlord reserves the right from time to time to make all
reasonable
modifications to said Covenants. The additions and modifications to
those
Covenants shall be binding upon Tenant upon delivery of a copy of
them to
Tenant. Landlord shall not be responsible to Tenant for the
nonperformance of
any of said Covenants by any other tenants within the
Subdivision.
XV. DESTRUCTION
A. Risk Covered By Insurance.
1.
If, during the term, the Leased Premises are totally or
partially
destroyed from a risk covered by the insurance described in Article
XIII,
rendering the Leased Premises totally or partially inaccessible or
unusable,
Landlord shall restore the Leased Premises and other improvements
in which the
Leased Premises are located to substantially the same condition as
they were in
immediately before destruction. Such destruction shall not
terminate this Lease.
If the existing laws do not permit the restoration, either party
can terminate
this Lease immediately by giving notice to the other party.
Furthermore, if such
restoration can not be accomplished within 90 days from the date of
destruction,
either party shall have the option to terminate this Lease
immediately by giving
notice to the other party.
2.
If the projected cost of restoration exceeds the amount of
proceeds
received from the insurance required under Article XIII, Landlord
can elect to
terminate this Lease by giving notice to Tenant within fifteen (15)
days after
determining that projected restoration costs will exceed the
insurance proceeds.
In the case of destruction to the Leased Premises only, if Landlord
elects to
terminate this Lease, Tenant, within fifteen (15) days after
receiving
Landlord's notice to terminate, can elect to pay to Landlord, at
the time Tenant
notifies Landlord of its election, the difference between the
amount of
insurance proceeds and the cost of restoration, in which case
Landlord shall
restore the Leased Premises. Landlord shall give Tenant
satisfactory evidence
that all sums contributed by Tenant as provided in this paragraph
have been
expended by Landlord in paying the cost of restoration. If Landlord
elects to
terminate this Lease and Tenant does not elect to contribute toward
the cost of
restoration as provided in this paragraph, this Lease shall
terminate
immediately.
B. Risk Not Covered By Insurance.
1.
If, during the term, the Leased Premises are totally or
partially
destroyed from a risk not covered by the insurance described in
Article XIII,
rendering the Leased Premises totally or partially inaccessible or
unusable,
Landlord shall restore the Leased Premises to substantially the
same condition
as they were in immediately before destruction. Such destruction
shall not
terminate this Lease. If the existing laws do not permit the
restoration, either
party can terminate
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this Lease immediately by giving notice to the other party.
Furthermore, if such
restoration can not be accomplished within 90 days from the date of
destruction,
either party shall have the option to terminate this Lease
immediately by giving
notice to the other party.
2.
If the projected cost of restoration exceeds ten percent (10%) of
the
projected value following restoration of the Leased Premises,
Landlord can elect
to terminate this Lease by giving notice to Tenant within fifteen
(15) days
after determining projected restoration costs and replacement value
but no more
than 45 days after defining event.
3.
If Landlord elects to terminate this Lease, Tenant, within fifteen
(15)
days after receiving Landlord's notice to terminate, can elect to
pay to
Landlord, at the time Tenant notifies Landlord of its election, the
difference
between ten percent (10%) of the projected value of the Leased
Premises
following destruction and the actual costs of restoration, in which
case
Landlord shall restore the Leased Premises. Landlord shall give
Tenant
satisfactory evidence that all su