Exhibit 10.37
LEASE BETWEEN
THERMO BIOSTAR, INC., A DELAWARE
COPRORATION
AND
THE PARK AT CTC, LLC, A COLORADO
LIMITED LIABILITY COMPANY
TABLE OF CONTENTS
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SECTION 1
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USE
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SECTION 2
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TERM
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SECTION 3
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COMPLETION OF PREMISES
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SECTION 4
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RENT
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SECTION 5
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TAXES AND OPERATING COST ADJUSTMENT
FORMULA
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SECTION 6
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HOLDING OVER
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SECTION 7
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BUILDING SERVICES
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SECTION 8
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CONDITION OF PREMISES AND BUILDING
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SECTION 9
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USE OF LEASED PREMISES
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SECTION 10
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COMPLIANCE WITH LAW
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SECTION 11
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ALTERATIONS AND REPAIRS
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SECTION 12
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ABANDONMENT
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SECTION 13
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ASSIGNMENT AND SUBLETTING
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SECTION 14
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SIGNS AND ADVERTISING
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SECTION 15
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DAMAGE TO PROPERTY, INJURY TO PERSONS
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SECTION 16
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TENANT’S INSURANCE
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SECTION 17
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DAMAGE OR DESTRUCTION
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SECTION 18
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ENTRY BY LANDLOR
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SECTION 19
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DEFAULT
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SECTION 20
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TAXES
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SECTION 21
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EMINENT DOMAIN
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SECTION 22
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SUBORDINATION TO MORTGAGES AND DEEDS OF
TRUST
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SECTION 23
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WAIVER
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SECTION 24
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SUBROGATION
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SECTION 25
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PLATS AND RIDERS
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SECITON 26
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SALE BY LANDLORD
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SECTION 27
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RIGHT OF LANDLORD TO PERFORM
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SECTION 28
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ATTORNEY’S FEES
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SECTION 29
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ESTOPPEL CERTIFICATE
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SECTION 30
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NOTICE
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SECTION 31
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RIGHTS RESERVED
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SECTION 32
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REAL ESTATE BROKER
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SECTION 33
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MISCELLANEOUS PROVISIONS
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SECTION 34
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SUCCESSORS AND ASSIGNS
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SECTION 35
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QUIET ENJOYMENT
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SECTION 36
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RECORDING
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SECTION 37
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RELIANCE BY LANDLORD
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SECITON 38
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OPTION TO EXTEND
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SECTION 39
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SECURITY DEPOSIT
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SECTION 40
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REFERENCE TO RIDER
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EXHIBIT A
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COMMENCEMENT DATE AGREEMENT
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EXHIBIT B-1
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SITE PLAN
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EXHIBIT B-2
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INITIAL PREMISES & CONTIGUOUS
PREMISES
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EXHIBIT B-3
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PLANS AND DRAWINGS
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EXHIBIT C
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BASE BUILDING CONDITIONS
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EXHIBIT D
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PROJECT SCHEDULE
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EXHIBIT E
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WORK LETTER
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EXHIBIT F
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GUARANTY
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LEASE
THIS LEASE made this 25th day
of June, 2001 (“Effective Date”), between Thermo
BioStar, Inc., a Delaware corporation (“Tenant”),
and The Park at CTC, LLC, a Colorado limited liability company
(“Landlord”).
WITNESSETH:
DEMISE
Landlord hereby leases to Tenant and
Tenant herby lessees from Landlord approximately 75,000 rentable
square feet (the “Premises” or, alternative, the
“Leased Premises”) to be located with that certain
building to be constructed by Landlord, comprised of a total of
approximately 105,000 rentable square feet as depicted on the site
plan (“Site Plan”) attached as Exhibit B-1
hereto and made a part hereof, more commonly known as 331 South 104
th Ave., Louisville, CO 80027 (the
“Building”). The Building will be situated on land
described as Lots 3 & 4, block 3, The Park at CTC, City of
Louisville, County of Boulder, State of Colorado (the
“Property”). Landlord also grants to Tenant a
non-exclusive right, subject to the provisions of this Lease, to
use all appurtenances to the Property, including, but not limited
to, any plazas, common areas, walks, parking areas, driveways, or
other areas in the Building or on the Property designated by
Landlord for the exclusive or non-exclusive use of the tenants of
the Building.
On the Initial Premises Commencement
Date (as defined in Section 2), the Premises will be comprised
of approximately 60,000 rentable square feet (the “Initial
Premises”), as shown on Exhibit B-2 attached
hereto and made a part hereof. From and after the Contiguous
Premises Commencement Date (as defined in Section 2), the
Premises shall also include approximately 15,000 rentable square
feet within the area which is cross-hatched on
Exhibit B-2 (the “Contiguous Premises” or
“Contiguous Space”). Landlord acknowledges and agrees
that Tenant has not yet designated the exact area which is to
comprise the Contiguous Space, and that Tenant shall have the right
to designate which portion of the area shown as cross-hatched on
Exhibit B-2 shall comprise the Contiguous Space by
providing such designation to Landlord in writing no later than
January 1, 2002. Until Tenant provides such written
designation to Landlord, all portions which are designated as the
Contiguous Space on the attached Exhibit B-2 (i.e., all
portions which are cross-hatched) shall be included within any
obligations of Landlord hereunder. Without limiting the foregoing,
Section 3.4 shall apply to all areas which are shown as
cross-hatched on Exhibit B-2 .
Landlord has estimated the Rentable
Square Fee (RSF) and Useable Square Feet (USF) as used in its Lease
in good faith pursuant to building and site plans for the Property.
Upon issuance of a Temporary Certificate of Occupancy for the
Initial Premises, Landlord shall have the Building and the Premises
measured at Landlord’s cost, and any changes to rentable
square footage calculations shall be confirmed in
Exhibit A , Lease Commencement Agreement, attached
hereto and made a part hereof, subject to approval by Landlord and
Tenant, and such calculations shall be the final calculations for
the size of the Building and Premises. The measurement of the
Building and Premises shall be in accordance with the standards of
the Building Owners and Managers Association (BOMA), or other such
industry standards as may be approved by Landlord and Tenant. It is
also understood and agreed that there shall be no load factor or
common area factor applied to the Premises (i.e., RSF = USF for the
purposes of this Lease).
The Lease is upon and subject to the
terms, conditions, and covenants set forth below and Landlord and
Tenant covenant as a material part of the consideration for this
Lease to keep and perform each and all of the terms, conditions,
and covenants by it to be kept and performed and that this Lease is
made upon the condition of such performance.
SECTION 1
USE
1.01
Use of Premises
. Tenant shall have the right to use
the Premises for administrative offices, laboratory, research and
development, operations, manufacturing, and uses incidental
thereto, and for any other purpose allowed by law, provided that
such uses comply with all zoning restrictions.
Landlord hereby represents and warrants that the
Building and the Property comply with office/industrial zoning
regulations in the Colorado Tech Center in Louisville,
Colorado.
SECTION 2
TERM
2.01
Term . The term (“Term”) of this Lease
shall commence on the Initial Premises Commencement Date (as
defined below) and shall expire on April 30, 2009
(“Expiration Date”).
2.02
Commencement Date for Initial
Premises . The
commencement date of the Term with respect to the Initial Premises
(“Initial Premises Commencement Date”) shall be on the
date that is the later to occur of the following:
(i) the effective date of a Temporary Certificate of Occupancy
of the Initial Premises, provided (a) Landlord has
substantially completed the Base Building Conditions (as defined
below), (b) Landlord has substantially completed the Tenant
Improvements (as defined in the Work Letter attached as
Exhibit E hereto and made a part hereof (“Work
Letter”)), (c) all items required for a permanent
Certificate of Occupancy are completed by landlord in a reasonable
amount of time and said items do not materially impact
Tenant’s occupancy, use, and enjoyment of the Building,
Initial Premises or Property all as reasonably determined by
Tenant, and (d) Tenant is able to commence its intended
business operations within the Initial Premises, subject only to
installation by Tenant of its personal property, or
(ii) April 15, 2002.
(a)
Damages for Delay
. In the event the Initial Premises
Commencement Date has not occurred on or before April 19, 2002
then, except as otherwise provided herein, from and after the
Initial Premises Commencement Date, Tenant shall receive an
abatement of Rent (as defined in Section 4.02) for the number
of days equal to the number of days between April 19, 2002 and
the Initial Premises Commencement Date. By way of example, if the
Initial Premises Commencement Date occurs on April 25, 2002,
then Tenant shall receive an abatement of Rent until May 1,
2002. The parties hereby agree that the amount of any rental
abatement which Tenant shall receive pursuant to this
section is a reasonable estimation of costs and damages
which will be incurred by Tenant in the event that the Initial
Premises Commencement date has not occurred by April 19,
2002.
(b)
Termination Right
. Notwithstanding any provision of
this Lease to the contrary, if the Initial Premises Commencement
Date has not occurred on or before July 15, 2002 for any
reason, then Tenant shall have the right to terminate this Lease by
providing written notice to Landlord at no penalty or cots to
Tenant. Upon Landlord’s receipt of Tenant’s notice,
this Lease shall terminate, and Landlord shall promptly return to
Tenant any sums previously deposited with Landlord.
(c)
Tenant Delay
. Should Tenant, through the
actions of Tenant, Tenant’s employees, agents, contractors,
subcontractors, guests, licensees, or invitees, impede or delay
Landlord’s completion of the Base Building or the Tenant
Improvements (each, a “Tenant Delay”), then the Initial
Premises Commencement Date shall be the date that the same would
have occurred but for the Tenant Delay. If Landlord has a
reasonable basis to believe there is a condition constituting a
Tenant Delay, Landlord shall promptly provide written notice to
Tenant setting forth in detail the basis for such belief, and any
reasonable actions which Landlord believes should be taken by
Tenant in order to cure the condition. If Tenant reasonably concurs
with Landlord, then Tenant shall promptly perform the actions
contained in Landlord’s notice. Tenant shall be given an
opportunity to cure any alleged delay in Landlord’s
construction of the Base building or Tenant Improvements. No action
of failure to act by Tenant shall constitute a Tenant Delay as
defined herein unless Landlord has provided the written notice as
set forth above, and (i) Tenant has failed to perform any
obligation within the time period specified in the Project
Schedule (as defined below) or (ii) if no time period is
specified in the Project Schedule for the relevant action
item, then within ten (10) business days from written notice
from Landlord detailing the action required of Tenant together with
any documentation necessary to enable Tenant to perform the
same.
(d)
City Delay
. If the Initial Premises
Commencement Date is impeded or delayed due to a failure of the
City of Louisville (the “City”) to act within the
estimated timeframes set forth in the construction
schedule (“Project Schedule”) attached as
Exhibit D hereto and made a part hereof (each a
“City Delay”), then the length in days of such City
Delay shall be deducted from the number of days of any rental
abatement which Tenant is otherwise entitled to under
Section 2.02(a) hereof. By way of example, if there is a
City Delay equal to three (3) days, and the Initial Premises
Commencement Date occurs on April 25, 2002, then Tenant shall
be entitled to an abatement of Rent pursuant to
Section 2.03(a) until April 28, 2002 (i.e.,
abatement for six days for each day after April 19, 2002 that
the Initial Premises
Commencement Date did not occur, reduced by
three days for the City Delay). If Landlord has a reasonable
basis to believe there is a condition constituting a City Delay,
Landlord shall promptly provide written notice to Tenant setting
forth in detail the basis for such belief and evidence of
Landlord’s efforts to compel the City to perform its duties
within the time periods set forth in the Project Schedule. If
Landlord has failed to submit to the City any plans or other
documentation necessitated by the City within the time periods set
forth in the Project Schedule, then Landlord shall not be entitled
to claim there has been a City Delay. No City Delay shall have
occurred as defined herein unless Tenant reasonably agrees in
writing with the explanation and length of the alleged City Delay
set forth in Landlord’s notice. If Tenant disagrees with
Landlord’s notice of an alleged City Delay then Tenant shall
use reasonable efforts to specify in writing the basis for such
disagreement within ten (10) days of receipt of
Landlord’s notice, and in any event, Tenant shall specify in
writing the specific basis for any such disagreement within forty
(40) days after receipt of Landlord’s notice. Notwithstanding
the foregoing, if Tenant fails to respond to Landlords’
notice of an alleged City Delay within ten (10) business days
of receipt of such notice stating whether or not Tenant agrees or
disagrees as to the existence of any alleged City Delay, then
Tenant shall be deemed to concur with Landlord’s
notice.
(e)
Early Occupancy
. Tenant shall have the right to
occupy the Initial Premises for thirty (30) days prior to the
Initial Premises Commencement Date (“Initial Premises Early
Occupancy Period”) for the purpose of installing its
equipment, furniture and other personal property, and
communications wiring. Landlord shall notify Tenant ion writing of
the anticipated Initial Premises Commencement Date within sixty
(60) days from such estimated date. During the Initial Premises
Early Occupancy Period, Tenant shall have the right to occupy the
Initial Premises without the obligation to pay Rent, but subject to
all other terms and provisions of this Lease. Tenant agrees to
reasonably cooperate with Landlord’s construction manager so
as to not unreasonably interfere with the completion of the Tenant
Improvements or the Base Building during the Initial Premises Early
Occupancy Period. If Landlord reasonably believes that
Tenant’s activities during the Early Occupancy Period are
interfering with Landlord’s construction of the Base Building
or the Tenant Improvements, then Landlord shall promptly notify
Tenant thereof, and Tenant shall immediately adjust its activities
within the Initial Premises to accommodate Landlord’s
performance of the Tenant Improvements or Base Building, as
applicable. If Tenant complies with this section, then in no event
shall Tenant’s occupancy of the Initial Premises be deemed a
Tenant Delay as defined in Section 2.02(c).
2.03
Contiguous Space
. In the event that Tenant has
elected for Landlord to perform the Tenant Improvements within the
Contiguous Space, then the commencement date of the Term with
respect to the Contiguous Space shall be the later to occur of:
(i) the date that Landlord delivers the Contiguous Space to
tenant in a good and broom-clean condition with the Tenant
Improvements for the Contiguous Space substantially completed in
conformance with the Work Letter, or (ii) April 15, 2004
(“Contiguous Space Commencement Date”). Notwithstanding
the forgoing, if Tenant elects to construct the Tenant Improvements
as provided in Section 3.02, then the Contiguous Space
Commencement Date shall be the later to occur of: (i) the
date that Landlord delivers the Contiguous Space in a good
and broom-clean condition to Tenant, or (ii) March 1,
2004. If Tenant has elected to perform the Tenant Improvements for
the Contiguous Space as provided in Section 3.02, then Tenant
shall have the right to occupy the Contiguous Space for forty-five
(45) days after the Contiguous Space Commencement Date without the
obligation to pay Rent, but subject to all other terms and
provisions of this Lease.
(a)
Damages for Delay
. In the event Tenant has elected
that Landlord is to perform the Tenant Improvements in the
Contiguous Space, and the Contiguous Space Commencement Date has
not occurred on or before April 15, 2004, then from and after
the Contiguous Space Commencement Date, Tenant shall receive an
abatement of Rent attributable to the Contiguous Space for the
number of days equal to the number of days between April 15,
2004 and the Contiguous Space Commencement Date. By way of example,
if the Contiguous Space Commencement Date occurs on April 20,
2004, then Tenant shall receive an abatement of Rent until
April 25, 2004. The parties hereby agree that the amount of
any rental abatement which Tenant shall receive pursuant to this
section is a reasonable estimation of costs and damages which
will be incurred by Tenant in the event that Contiguous Space
Commencement Date has not occurred by April 15, 2004 where
Landlord is to perform the Tenant Improvements. In the alternative,
if Tenant has elected to perform the Tenant improvements in the
Contiguous Space, and the Contiguous Space Commencement Date has
not occurred on or before March 1, 2004, then from and after
the date that is forty-five (45) days after the Contiguous Space
Commencement Date, Tenant shall receive an abatement of Rent
attributable to the Contiguous Space for the number of days equal
to the number of days between March 1, 2004 and the Contiguous
Space Commencement Date. By way of example, if the Contiguous Space
Commencement Date occurs on March 5, 2004, then Tenant shall
receive an abatement of Rent until April 23, 2004 (i.e.,
forty-five days after the Contiguous Space Commencement Date plus
four days for
each day after March 1, 2004 that the
Contiguous Space Commencement Date has not occurred). The parties
hereby agree that the amount of any rental abatement which Tenant
shall receive pursuant to this section is a reasonable
estimation of costs and damages which will be incurred by Tenant in
the event that the Contiguous Space Commencement Date has not
occurred by March 1, 2004 where Tenant is to perform the
Tenant Improvements within the Contiguous Space.
(b)
Termination Right
. Notwithstanding any provision of
this Lease to the contrary, if the Contiguous Space Commencement
Date has not occurred on or before August 1, 2004 for any
reason, then Tenant shall have the right to terminate its
obligation to lease the Contiguous Space by providing written
notice thereof to Landlord. Upon Landlord’s receipt of
Tenant’s notice, Tenant’s obligation to lease the
Contiguous Space shall terminate and be of no further force or
effect. Landlord hereby acknowledges that its failure to deliver
the Contiguous Space to Tenant as provided herein shall cause
Tenant to incur damages, including costs and expenses associated
with leasing a new facility comparable to the Contiguous Space.
Therefore, if Tenant elects to terminate its obligation to lease
the Contiguous Space as provided herein, then Landlord shall
promptly pay to Tenant upon demand all costs incurred by Tenant in
leasing and moving to an alternative space rather than the
Contiguous Space, including, without limitation, brokers’
fees, reasonable attorneys’ fees, and any differential
between the Base Rent for the Contiguous Space and the rental
amount for the alternative space. The parties acknowledge and agree
that such sums represent a reasonable estimation of Tenant’s
damages due to Landlord’s failure to perform
hereunder.
SECTION 3
COMPLETION OF THE PREMISES
3.01
Base Building
. Landlord shall complete all of the
base building conditions (“Base Building Conditions”)
described in Exhibit C attached hereto and made apart
hereof on or before April 15, 2002. Landlord shall complete
the remainder of the Building shell and all site improvements for
the Property in conformance with the plans and drawings attached as
Exhibit B-3 hereto and made a part hereof (“Site
Improvements”) on or before July 1, 2002. The Base
Building Conditions and Site Improvements are collectively defined
herein as the “Base Building”. Landlord shall perform
all work in connection with the Base Building in a good and
workmanlike manner. In the event that Landlord has failed to
substantially complete the Site Improvements by July 1, 2002,
then Tenant shall receive an abatement of Rent until the date the
Site improvements are substantially completed. Notwithstanding the
provisions of this Lease regarding City Delay and other matters
requiring City of Louisville approval, Landlord and Tenant
acknowledge that the Colorado Tech Center General Improvement
District (CTCGID), which the Building is included within, is
required to install an upgraded lift station (“Lift
Station”) for the purpose of pumping waste water/sewage away
from the Property, prior to issuance of a Certificate of Occupancy
by the City of Louisville. In the event the Lift Station is not
under construction as of November 15, 2001, Landlord, at its
sole cost, shall construct its own waste removal system on the
Property (“Ejection System”) in order to obtain final
approval – and, at a minimum, issuance of a Temporary
Certificate of Occupancy from the City of Louisville in order to
meet the Project Schedule (Exhibit D) and the planned
occupancy date as otherwise described in this Lease. In the event
the Initial Premises Commencement Date has not occurred on or
before April 19, 2002 as a result of the failure to obtain a
Temporary Certificate of Occupancy due to the lack of approval,
construction, and/or completion of the Lift Station or the Ejection
System as the case may be, then from and after the Initial Premises
Commencement Date, Tenant shall receive two (2) days of
abatement of Rent (as defined in Section 4.02) for the number
of days equal to the number of days between April 19, 2002 and
the Initial Premises Commencement Date. By way of example, if the
Initial Premises Commencement Date occurs on April 25, 2002,
then Tenant shall receive an abatement of Rent until May 7,
2002. The parties hereby agree that the amount of any rental
abatement which Tenant shall receive pursuant to this
section is a reasonable estimation of costs and damages which
will be incurred by Tenant in the event that the Initial Premises
Commencement Date has not occurred by April 91, 2002 as a
result of the failure to complete the Lift Station or Ejection
System. Notwithstanding any other provision of this Lease to the
contrary, in no event shall any period of time related to
processing governmental approvals of the Lift Station or Ejection
System be categorized as a City Delay.
3.02
Tenant Improvements
. Landlord shall construct the
Tenant Improvements in the Initial Premises in a good and
workmanlike manner in conformance with the Work Letter. Tenant
shall have the right to either (i) require Landlord to perform
the Tenant Improvements in the Contiguous Space in which event the
terms and provisions of the Work Letter shall apply to the
performance of the same except that dates shall be adjusted per
diem to reflect the dates then in effect for the Contiguous Space,
or (ii) elect to perform the Tenant Improvements
directly.
3.03
Improvement Allowance
. Landlord shall pay an improvement
allowance (“Improvement Allowance”) totaling $35.10 per
rentable square foot of the Premises. Upon mutual execution of this
Lease, that portion of the Improvement Allowance based on the
60,000 rentable square feet of the Initial Premises (“Initial
Premises Improvement Allowance”) shall be immediately
available for use in the payment of the Tenant Improvements in the
Initial Premises in conformance with the Work Letter. That portion
of the Improvement Allowance based on the 15,000 rentable square
feet of the Contiguous Space (“Contiguous Space Improvement
Allowance”) shall be available for use in the payment of the
Tenant Improvements in the Contiguous Space: (i) immediately
if used in conformance with Section 3.04 hereof, (ii) in
conformance with the timing (as adjusted per Section 3.02) set
forth in the Work Letter if Tenant elects to require Landlord to
construct the Tenant Improvements in the Contiguous Space, or
(iii) upon the Contiguous Space Commencement Date as a direct
payment to the Tenant as such costs are incurred by Tenant if
Tenant elects to construct the Tenant Improvements in the
Contiguous Space. The Improvement Allowance shall be in addition to
work completed at Landlord’s cost for construction of the
Base Building. There shall be no construction management and/or
bonding fees charged against the Improvement Allowance on behalf of
Landlord or Landlord’s employees, agents, or contractors. The
Improvement Allowance includes programming, space planning,
construction documentation, engineering, construction, change
orders, cabling, consultants, project management, and other
construction related costs. Tenant has engage CRESA Partners
(“CRESA”) for project management for construction of
the Tennant Improvements. CRESA’s fee will be paid from the
Improvement Allowance, or is to be paid by Tenant, at
Tenant’s discretion. Tenant retains the right to engage other
consultants, architects, engineers, contractors, and vendors at its
discretion, the cost of which, if within the above guidelines, may
be deducted form the Improvement Allowance or paid separately by
Tenant, in Tenant’s sole discretion.
3.04
Lease of Contiguous Space to
Third Party Tenants .
Landlord shall have the right to lease the Contiguous Space to
third party tenant(s) until February 28, 2004. While the
Contiguous Space is leased to third parties it shall be separately
demised from the Initial Premises and shall be accessible only by
an entrance or entrances separate from the Initial Premises.
Landlord shall implement reasonable safety precautions to insure
that any tenants of the Contiguous Space have no right to access to
the Initial Premises. Prior to entering into any lease agreement
with any proposed tenant(s) of the Contiguous Space, Landlord shall
obtain Tenant’s prior written consent to the layout, plans
and proposed use for such tenant(s), which consent shall not be
unreasonably conditioned, withheld or delayed. Landlord shall not
lease any portion of the Contiguous Space to tenant(s) who are
direct competitors of Tenant, or to entities whose use or occupancy
may negatively impact the use of enjoyment of the Premises by
Tenant, in Tenant’s reasonable discretion. Landlord shall not
enter into any lease agreement with respect to the Contiguous Space
with any third party tenant(s) where the term thereof expires on
the date later than February 28, 2004.
(a)
Tenant Improvements in Contiguous
Space . Tenant agrees to
allocate a portion of the Contiguous Space Improvement Allowance
for tenant improvements within the Contiguous Space for third party
tenants, subject to the terms and conditions of this section.
Landlord shall submit all space plans and cost estimates for tenant
improvements within the Contiguous Space for third party tenants to
Tenant for Tenant’s prior review and approval. Tenant shall
have the right to disapprove in its sole discretion any such
improvements and any expenditure from the Contiguous Space
Improvement Allowance where such improvements and/or design needs
of Tenant for the Contiguous Space. All other costs associated with
any lease by Landlord and/or use by third parties of the Contiguous
Space, including but not limited to the cost of demising the
Building for such purposes, construction of any common areas
required for multi-tenant use (hallways, access, egress, bathrooms,
etc.), improvements installed for such third parties and/or created
for use and purposes, construction and/or demolition of
improvements required within the Building or the Premises resulting
from the design and construction of the Building and/or the
Premises to accommodate Landlord and/or such intended third
parties, and demolition and construction required to cause the
Building, Premises, or Contiguous Space to be brought back to the
condition and layout previously approved by Tenant in preparation
for Tenant Improvements for Tenant within the Contiguous Space,
shall be the sole cost, expense and obligation of
Landlord.
SECTION 4
RENT
4.01
Base Rent . Tenant agrees to pay Landlord Base Rent,
applicable to the phased occupancy of the Premises, on a monthly
basis according to the following rent schedule:
|
Month
|
|
Base Rent/RSF/YEAR
|
|
|
Initial Premises Commencement Date -
Month 12
|
|
$
|
12.95
|
|
|
Mo. 13 – Mo 24
|
|
$
|
13.30
|
|
|
Mo. 25 – Mo. 36
|
|
$
|
13.92
|
|
|
Mo. 37 – Mo. 48
|
|
$
|
14.17
|
|
|
Mo. 49 – Mo. 60
|
|
$
|
14.50
|
|
|
Mo. 61 – Mo 72
|
|
$
|
16.28
|
|
|
Mo. 73 – Expiration
Date
|
|
$
|
16.85
|
|
On or prior to the Initial Premises Commencement
Date, Tenant shall pay Base Rent and estimated Operating Expenses
for the first month of the Term.
4.02
No Offsets
. Except as otherwise provided
herein, the Base Rent, Tenant’s Proportional Share of Taxes
and Operating Costs, and all other sums or charges required by this
Lease to be paid by Tenant to Landlord (all of which are sometimes
collectively referred to herein as “Rent”) shall be
paid to Landlord without deduction or offset, in lawful money of
the United States of America, at the office of O’Connor
Development 6685 Gunpark Drive, Suite 210, Boulder, Colorado
80301 or to such other person or at such other place as Landlord
may from time to time designate in writing.
4.03
Interest on Late
payments . Any Rent or
other amount due from Tenant to Landlord under this Lease not paid
within five (5) days of when due shall bear interest from the
date due, computed on a daily basis, until the date paid, at the
rate of one and one-half percent (1 ½%) per month until
paid, but the payment of the interest shall not excuse nor cure any
default by Tenant under this lease.
4.04
Late Payment Charge
. Further, and notwithstanding the
interest charges provided for in the preceding
subsection 4.03, if any Rent or other amounts owing hereunder
are not paid within five (5) days of when due, Landlord and
Tenant agree that Landlord will incur additional administrative and
financial expenses and inconveniences, the amount of which will be
difficult if not impossible to determine. Accordingly, Tenant shall
pay to Landlord an additional one-time late charge for any late
monthly payment in the amount of five percent (5%) of the amount of
the payment; provided, however, that no one-time late charge shall
apply until after ten (10) days written notice by Landlord
delivered to Tenant pursuant to the notice provisions in
Section 30 herein.
SECTION 5
TAXES AND OPERATING COST
ADJUSTMENT FORMULA
5.01
Taxes . The Rent payable by Tenant shall be increased
by the amount of Tenant’s Proportional Share of the Taxes on
the Property. “Tenant’s Proportional Share” as
used in this Lease shall be calculated by dividing the number of
rentable square feet of the Premises then occupied by Tenant by the
number of rentable square feet of the Building. For example, on the
Initial Premises Commencement Date, Tenant’s Proportional
Share shall be approximately 57.14%, and on the Contiguous Space
Commencement Date, Tenant’s Proportional Share shall be
approximately 71.4%. In determining the amount of Taxes for any
calendar year, the amount of special assessments to be included
shall be limited to the amount of the installment (plus any
interest payable thereon) of such special assessment which would
have been required to have been paid during such calendar year if
Landlord had elected to have the special assessment paid over the
maximum period of time permitted by law, if the election is
available to Landlord. All reference to Taxes “for” and
“billed for” a particular calendar year shall be deemed
to refer to Taxes levied, assessed, billed or otherwise imposed for
such calendar year, without regard to the dates when any such Taxes
are due and payable. Landlord’s good faith estimate of Taxes
for the calendar year ending December 31, 2002 is $1.50/RSF
based on the projected 2001 tax payment (2000 assessment year) for
improved, like properties in the Colorado Tech Center. Tenant
acknowledges, however, that in 2001 property valuations will be
reassessed by Boulder County, which will increase property
taxes.
(a)
Definition
. As used in this Lease, the term
“Taxes” means any and all general and special taxes and
impositions levied, assessed, or imposed upon, or with respect to,
the Premises, any leasehold improvements, fixtures, installations,
additions and equipment, whether owned by Landlord or Tenant, or
either because of or in connection with Landlord’s ownership,
Leasing and operation of the Building and the Property, including,
without limitation, real estate taxes, personal property taxes for
property used in connection with, and to the extent used on behalf
of, the Property, general or special assessments, and duties or
levies charged or levied upon or assessed against the Building and
the Property
and personal property, or any tax or excise on
rent or any other tax (however described) on account of rental
received for use and occupancy of any or all of the Building and
the Property, whether any such taxes are imposed by the United
States, the State of Colorado, the County of Boulder, or any local
governmental municipality, authority, or agency or any political
subdivision. Taxes shall not include any net income, capital stock,
succession, transfer, franchise, gift, estate or inheritance
taxes.
(b)
Payment . Commencing with the Initial Premises
Commencement Date, Tenant shall pay to Landlord on the first day of
each calendar month until the next upward adjustment date (which
period between adjustment dates is herein called a “Tax
Deposit Year”) one-twelfth of the estimated amount of the
Taxes. Landlord shall estimate such amount prior to the beginning
of each calendar year, and may adjust its estimate no more than one
time per calendar year. No later than April 15 of each year,
the amounts paid under this Subsection 5.01(b) in any Tax
Deposit Year shall be reconciled with amounts actually billed to
Landlord for the same Tax Deposit Year, and provided there is any
surplus remaining after the credit to Tenant and provided that
there is no uncured event of Tenant default beyond applicable
notice and cure periods under any of the provisions of this lease,
Landlord shall, at Landlord’s option, either refund the
amount of the surplus to Tenant within thirty (30) days following
the end of the Tax Deposit Year or apply the surplus amount against
any other amounts then due, or future amounts due, from Tenant to
Landlord. If upon the reconciliation there is any deficiency in the
amount of Taxes paid by Tenant, Landlord shall bill Tenant and
Tenant shall pay the additional amount within thirty (30) days
after receipt of Landlord’s statement. Any amount of surplus
or deficiency due at the expiration or earlier termination of this
lease, shall be paid by the owing party to the other within thirty
(30) days after such expiration/termination.
5.02
(a) Inclusion in Operating
Costs . Tenant shall pay Tenant’s Proportional Share of
the Operating Costs for the Property. Landlord’s good faith
estimate of Operating Costs as of November 15, 2000 is $.90
per rentable square foot of the Premises. As used in this lease,
the term “Operating Costs” means any and all expenses,
costs and disbursements (other than Taxes and those items excluded
under section 5.02 (b) hereof), which are paid or accrued
by Landlord in connection with the management, maintenance,
operation or repair of the Building, including, without
limitation:
(i)
Costs of supplies;
(ii)
Costs incurred in connection with
obtaining and providing energy for the Building, including, but not
limited to, costs of propane, butane, natural gas, steam,
electricity, fuel oils, coal or any other energy sources, except if
separately metered to the Leased Premises, in which case Tenant
shall pay 100% of its metered amount;
(iii)
Costs of water and sanitary sewer
and storm drainage services;
(iv)
Costs of general maintenance and
repairs, including costs of repairing heating, ventilation and air
conditioning systems and the cost of exterior building and roof
maintenance and repairs;
(v)
Cost of insurance;
(vi)
Costs of maintenance and reasonable
replacement of landscaping; and
(vii)
Costs for professional management of
the Property not to exceed 6% of Base Rent or the then current
market management fee for like buildings in the area, whichever is
less.
(b)
Exclusion from Operating
Costs . Notwithstanding
the foregoing “Operating Costs” shall not
include:
(i)
Costs of repairs or other work
occasioned by fire, windstorm or other insured casualty to the
extent of insurance proceeds received;
(ii)
Leasing commissions, advertising,
advertising expenses, and other costs incurred in leasing space in
the Building or other properties of Landlord;
(iii)
Costs of repairs or building
necessitated by condemnation;
(iv)
Any interest on borrowed money or
debt amortization, except as specifically set forth
above;
(v)
Depreciation on the
Building;
(vi)
Any settlement, payment or judgment
incurred by Landlord or the Building manager due to the negligence
or willful misconduct of Landlord, its employees, agents, or
contractors;
(vii)
Cost of any damage to the Building
caused directly by the negligence or willful misconduct of
Landlord, its employees, agents, or contractors;
(viii)
Cost of structural repairs or
reconstruction of any portion of the Building;
(ix)
Costs of providing utility lines to
the Building other than the utilities and services to be provided
by Landlord pursuant to this Lease, or of repairing such lines if
they break (but not if they are plugged by Tenant’s usage
);
(x)
Ground lease and debt service
payment(s);
(xi)
The cost of items which would, in
accordance with generally accepted accounting principles (GAAP), be
capitalized;
(xii)
The cost of tenant
improvements;
(xiii)
The cost of repairing defects in
construction workmanship or materials;
(xiv)
Items for which the Landlord is
reimbursed by insurance or otherwise;
(xv)
Accounting, legal, or other
professional fees related to new leases or disputes with current or
past tenants;
(xvi)
Leasing or brokerage
commissions;
(xvii)
Costs associated with replacement or
material repairs of base building structure or systems, including
but not limited to the foundation, structural components, roof,
mechanical, electrical and plumbing systems, unless due to specific
acts or omissions of Tenant;
(xviii)
The cost of services exceeding the
then current market costs for such services; and
(xix)
All alterations, improvements, or
additions and other capital expenditures for the
Property.
(c)
Warranties
. Tenant shall be entitled to
reimbursement for any amounts collected by Landlord under any
manufacturer’s warranty on any systems or machinery used in
the Building; provided that Tenant has previously paid to Landlord
the repair expense relating to Landlord’s warranty
claim.
(d)
Payment . Beginning on the Initial Premises Commencement
Date, Landlord shall supply Tenant with written notice of
Landlord’s estimate of the Operating Costs that will be
incurred or accrued during the current calendar year (the
“Deposit Year”). On or before the first day of each
month during such Deposit Year, Tenant shall pay to Landlord
one-twelfth of Tenant’s Proportional Share of the estimated
amount. For each subsequent Deposit Year, if the monthly deposit
amount is not determined in time for Tenant to make the first
payment on January 1 of the relevant Deposit Year, then the
first monthly payment shall be due on the first day of the month
immediately following the date Landlord supplies Tenant with notice
of the amount. Landlord shall provide to Tenant the estimated
amount prior to March 31 of such Deposit Year, and the first
monthly payment(s) shall also include a payment equal to
one-twelfth of such additional sum multiplied by the number of
calendar months which have elapsed during the Deposit Year prior to
the date Tenant makes its first payment, not to exceed three months
of such additional sum. Landlord may adjust its estimate of
Operating Costs no more than one time per calendar year. No later
than April 15 of each year, the amounts paid under this
Subsection 5.02 in any Deposit Year shall be reconciled with
amounts actually billed to Landlord for the same Deposit Year, and
provided there is any surplus remaining after the credit to Tenant
and provided that there is no uncured event of Tenant default
beyond
any applicable cure period under any of the
provisions of this Lease, Landlord shall apply the surplus amount
against any other amounts then due, or future amounts due, from
Tenant to Landlord. If upon the reconciliation there is any
deficiency in the amount of Operating Costs paid by Tenant,
Landlord shall bill Tenant and Tenant shall pay the additional
amount within thirty (30) days of receipt of Landlord’s
statement. Any amount of surplus or deficiency due at the
expiration or earlier termination of this Lease, shall be paid by
the owing party to the other within thirty (30) days after such
expiration/termination.
5.03
Audit and Adjustment
Procedures .
(a)
The annual determination and
statement of Taxes and Operating Costs shall be prepared by
Landlord no later than April 15 of each year, in accordance
with generally accepted accounting principles. In the event of any
dispute as to any Rent due under this Lease, Tenant shall have the
right to inspect Landlord’s accounting records, within two
years of the applicable Deposit Year, relative to Taxes and
Operating Costs at the office in which Landlord maintains its
records in the Denver/Boulder metropolitan area, currently located
at 6685 Gunpark Drive, Suite 210, in Boulder Colorado, during
normal business hours at any time following the furnishing by
Landlord to Tenant of the statement, and Landlord will cooperate in
good faith for such examination/audit. If it is discovered that
Tenant has been invoiced or has otherwise paid an amount in excess
of Tenant’s Proportional Share of allowable Taxes and
Operating Costs, Tenant shall deliver to Landlord copies of
applicable audits, reports or other results from it examination,
Landlord will pay to Tenant such excess amount within thirty (30)
days after receipt of Tenant’s statement, and will modify
applicable future Tax and Operating Cost charges. If Landlord has
any objection or dispute with Tenant’s statement, Landlord
shall provide written notice thereof to Tenant within thirty (30)
days after receipt of Tenant’s statement, indicating in
reasonable detail the particular objections or disputes made by
Landlord. If any error or miscalculation discovered through
Tenant’s examination is equal to or greater than five percent
(5.0%) of the sum of Taxes and Operating Costs initially invoiced
to and paid by Tenant, Landlord shall pay the reasonable cost of
Tenant’s examination/audit. Notwithstanding the foregoing,
there shall be no time limitations regarding payment to Tenant by
Landlord for any material errors in the calculation, billing, or
Tenant’s payment of Taxes or Operating Costs.
(b)
If the Term of this Lease commences
on any day other than the 1st day of a calendar year
, or if the Term of this Lease ends on any day other than the
last day of the last month of the term , any payment
due to Landlord by reason of an increase in Taxes or Operating
Costs shall be prorated on the basis by which the number of days in
such partial year bears to 365.
SECTION 6
HOLDING OVER
6.01
Rent Increase
. Should Tenant hold over after the
termination of this Lease, whether the termination occurs by lapse
of time or otherwise, Tenant shall become a tenant from month to
month upon each and all of the terms herein provided as may be
applicable to such a tenancy, and any such tenancy shall not
constitute an extension of this Lease; provided, however, during
the period as a tenant from month to month, Tenant shall pay Base
Rent at one hundred twenty five percent (125%) of the rate payable
immediately preceding the date of termination of this Lease for the
first six (6) months of such Hold Over period, and shall pay
Base Rent at one hundred forty percent (140%) of the rate payable
immediately preceding the date of termination of this Lease for any
remainder of the Hold Over period. The provisions of this paragraph
shall not exclude nor waive Landlord’s right of re-entry or
any other right hereunder.
SECTION 7
BUILDING SERVICES
Landlord shall provide, as described
below and as described in the Base Building Conditions, at its cost
except as may be passed through to Tenant as an allowable component
of Operating Costs, the
following services throughout the Term of the
Lease (each, a “Building Service” and collectively, the
“Building Services”):
(a)
maintenance of the site, Building,
parking lots, landscaping, and other components of the
Property;
(b)
installation and maintenance of
landscaping;
(c)
Utilities and other services,
including but not limited to hot and cold running water, sewer and
other related plumbing services, electricity, gas, and other
sources of power acceptable to Tenant, delivered and installed at
central point(s) and other locations acceptable to Tenant within
the Building;
(d)
Conduit for services such as
telecommunications, data, and other services requiring
wiring/conduit, such actual services to be provided by third party
vendors;
(e)
Heating, ventilation, and air
conditioning for consistent and comfortable use of the Premises by
Tenant;
(f)
Passenger elevator services if the
Building is greater than one floor. Tenant may utilize passenger
elevators for freight unless a freight elevator is installed and
designated by Landlord;
(g)
Snow removal;
(h)
Janitorial services for cleaning of
the Premises, on each day other than weekends and standard business
holidays; and
(i)
Trash pickup and removal.
Unless due to the act or negligence of Tenant,
or unless due to any temporary unavailability outside the control
of Landlord, Landlord shall be responsible for maintaining the
Building services throughout the term of this Lease. All Building
Services provided by Landlord shall be consistent with the quality
of such services in similar “flex” buildings in the
Colorado Tech Center area.
Tenant shall have access to the Premises and the
Building, and may utilize all Building Services at any time, on a
24 hours per day/7 days per week basis. The Premises will be
separately metered for electrical power and gas as part of the Base
Building Conditions.
7.01
Interruption of Standard
Services . Tenant agrees
that Landlord shall not be liable for failure to supply any
heating, air conditioning, janitorial services, electric current,
or any other utility during any period when Landlord uses its best
efforts to restore or to supply such services or utility. Landlord
reserves the right to temporarily discontinue such services at
times as may be necessary by reason of accident, repairs,
alterations, or improvements, or by reason of strikes, lockouts,
riots, acts of God, or any other happening or occurrence beyond the
reasonable control of Landlord, provided such discontinuance does
not substantially interfere with Tenant’s business
operations. Notwithstanding the foregoing, Tenant shall receive a
one (1) day abatement of Base Rent and Operating Costs for
each day any Building Service is not available to the Premises,
unless due to circumstances outside the control of Landlord or
unless due to the negligence or misconduct of Tenant.
7.02
Telephone . Tenant shall separately arrange with the
applicable local public authorities or utilities, as the case may
be, for the furnishing of and payment for all telephone services as
may be required by Tenant in the use of the Premises, except for
the conduit required for such services as described in
Section 7.01 above which conduit shall be provided by Landlord
as part of the Base Building Conditions. Tenant shall directly pay
for such telephone services, including the establishment and
connection thereof, at the rates charged for the services by the
authority or utility, and the failure of Tenant to obtain or to
continue to receive the services for reasons other than those
specified herein shall not relieve Tenant of any of its obligations
under this Lease. Landlord shall supply sufficient telephone and
data lines into the Building for Tenant’s connection,
including service entrance, and demark points at electrical and
communications rooms, for voice services, and fiber. Landlord
warrants that communications fiber is available to the
Building.
7.03
Above-Standard Service
Requirements . If
heat-generating machines or any equipment cause the temperature in
the Premises, or any part, to exceed the temperatures that the
Building’s air conditioning and other cooling systems would
be able to maintain in the Premises according to the specifications
described in the Base Building Conditions, were it not for the
heat-generating equipment, then Tenant and Landlord reserve the
right to install supplementary air conditioning units in the
Premises, and the actual cost, including the cost of installation
and the cost of operation and maintenance thereof, shall be paid by
Tenant (to Landlord upon demand by Landlord if such costs are
incurred by Landlord). Landlord shall not install supplemental air
conditioning units in the Premises unless it has obtained
Tenant’s request therefor or Tenant’s prior written
consent thereto. If Tenant requires electric current, water, or any
other energy in excess of that which is described in the Base
Building Conditions, Tenant shall first procure the consent of
Landlord, which consent of Landlord shall not be unreasonably
withheld or delayed. If Landlord consents to such excess electric,
water, or other energy requirements, Tenant shall, on demand, pay
all costs of meter service and installation of facilities necessary
to measure and/or furnish such excess capacity. Tenant shall also
pay the entire cost of such additional electricity, water, or other
energy used. Tenant may also install supplemental power, plumbing,
HVAC, and venting equipment, and other base building improvements
with Landlord’s prior, reasonable approval. Any service
required by Tenant in excess of the specifications described in the
Base Building Conditions shall be referred to as “Above
Standard Services”. Landlord acknowledges that Tenant may
require Above Standard Services, and may require to make other
changes/improvements to the Base Building, and Landlord shall not
withhold its consent based on consumption, usage, or non-material
impact to the Building.
SECTION 8
CONDITION OF PREMISES AND
BUILDING
8.01
CONDITION OF PREMISES and
Building
a.
Acceptance Upon
Possession . Tenant, by
taking possession of the Premises, shall be deemed to have agreed
that the Premises were, as of the date of taking possession, in
good order, repair, and condition and satisfactorily completed in
accordance with Landlord’s obligations under this Lease,
subject to any latent defects and/or “punch list” items
to be completed by Landlord resulting from Landlord’s
obligations as set forth in the Work Letter.
b.
Landlord agrees to construct,
maintain, and manage the quality and image of the Building as a
high quality “flex” building at all times, including
the general professional environment of the Building. No use or
operation by other parties or vendors which interferes with
Tenant’s use and operations, including but not limited to any
food preparation or storage, operations which cause noise,
vibration, dust, or other environmental pollutants or discharge, or
any use which adversely affects the Building structure or Building
services, shall be allowed in any portion of the building or
parking areas without the prior written consent of Tenant in its
sole discretion. In addition, no competitor of Tenant shall be
allowed to lease space in the Building without the prior written
consent of Tenant in its sole and absolute discretion. A competitor
of Tenant is defined as any entity engaged in the direct
manufacturing, processing, and/or sale of medical diagnostics or
testing devices.
SECTION 9
USE OF LEASED
PREMISES
9.01
Use . The Leased Premises shall not be used other
than for the purpose set forth in Section 1 of this Lease.
Tenant’s use shall at all times comply with all applicable
laws, ordinances, regulations, or other governmental ordinances in
existence.
9.02
Hazardous Use
. Notwithstanding anything to the
contrary contained in this Lease, Landlord agrees to indemnify,
defend and hold harmless Tenant, its parent, subsidiaries and
affiliates, and their respective officers, directors, shareholders
and employees, from and against any and all liabilities, losses,
damages, suits, actions, causes of action, costs, expenses
(including without limitation reasonable attorneys’ fees and
disbursements and court costs), penalties, fines, demands,
judgments, claims or liens (including without limitation claims or
liens imposed under any so-called “Superfund” or other
environmental legislation) arising from or in connection with the
presence at the time of Tenant’s taking possession of the
Premises of Hazardous Materials (as hereinafter defined) on, or the
subsequent removal thereof from, the Property (including without
limitation the Premises). Landlord shall have the right to assume
exclusive control of
the defense of any such suit, action or claim,
and Tenant agrees to cooperate reasonably with Landlord in the
performance by Landlord of its obligations under this
Section.
Notwithstanding anything to the
contrary contained in this Lease, Tenant agrees to indemnify,
defend and hold harmless Landlord from and against any and all
liabilities, losses, damages, suits, actions, causes of action,
costs, expenses (including without limitation reasonable
attorneys’ fees and disbursements and court costs),
penalties, fines, demands, judgments, claims or liens (including
without limitation claims or liens imposed under any so-called
“Superfund” or other environmental legislation) arising
from or in connection with the release or discharge of Hazardous
Materials which are stored, generated or otherwise brought onto the
Premises by or at the direction of Tenant. Tenant shall have the
right to assume exclusive control of the defense of any such suit,
action or claim, and Landlord agrees to cooperate reasonably with
Tenant in the performance by Tenant of its obligations under this
Section. Tenant shall have the right, at Tenant’s sole
election and at Tenant’s sole cost and expense, to perform or
cause to be performed, from time to time during the Term (as the
same may be extended), environmental testing to determine the
presence of Hazardous Materials on the Premises.
For purposes of this Section, the
term “Hazardous Materials” shall include without
limitation any petroleum product, any flammable, explosive or
radioactive material, or any hazardous or toxic waste, substance or
material, including without limitation substances defined as
“hazardous substances”, “hazardous
materials,” “solid waste” or “toxic
substances” under any applicable laws relating to hazardous
or toxic materials and substances, air pollution (including noise
and odors), water pollution, liquid and solid waste, pesticides,
drinking water, community and employee health, environmental land
use management, stormwater, sediment control, nuisances, radiation,
wetlands, endangered species, environmental permitting and
petroleum products, which laws may include, but not be limited to,
the Federal Insecticide, Fungicide, and Rodenticide Act, as
amended; the Toxic Substances Control Act; the Clean Water Act; the
National Environmental Policy Act, as amended; the Solid Waste
Disposal Act, as amended; the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the Superfund
Amendments and Reauthorization Act of 1986; the Hazardous Materials
Transportation Act, as amended; the Resource Conservation and
Recovery Act, as amended; the Clean Air Act, as amended; the
Emergency Planning and Community Right-to-Know Act, as amended; the
Occupational Safety and Health Act, as amended; comparable state
laws; and all rules and regulations promulgated pursuant to
such laws and ordinances.
The provisions of this
Section shall survive the expiration or earlier termination of
this Lease.
9.03
No Waste . Tenant shall not commit, suffer, nor permit
any waste, damage, disfiguration, or injury to the Leased Premises
or the Building’s common areas or the fixtures and equipment
located in or on the Building, or permit or suffer any overloading
of the floors and shall not place any safes or heavy business
machinery in the Premises other than as specifically provided for
in the Work Agreement and plans for the Tenant Improvements,
without first obtaining the written consent of Landlord and, if
required by Landlord, of Landlord’s architect, and shall not
use or permit to be used any part of the Leased Premises for any
dangerous, noxious, or offensive trade or business, and shall not
cause or permit any nuisance, noise, or action in, at, or on the
Leased Premises. Notwithstanding anything to the contrary contained
herein, Landlord acknowledges and approves Tenant’s use of
the Premises and Building, including but not limited to
Tenant’s intent to store and use various substances and
chemicals, including, without limitation, those identified on a
list previously submitted and approved by Landlord, in compliance
with laws and regulations governing such substances and chemicals
and such use shall not be deemed a violation of the foregoing
provisions of this Section 9.03.
a.
Protection Against Insurance
Cancellation . If any
insurance policy on the Building or any part thereof shall be
canceled or if cancellation shall be threatened, or if the coverage
shall be reduced or be threatened to be reduced, in any way by
reason of the use or occupation of the Leased Premises or any part
thereof by Tenant, any assignee or subtenant of Tenant, or by
anyone permitted by Tenant to be upon the Leased Premises, and if
Tenant fails to take reasonable efforts to remedy the condition
giving rise to the cancellation, threatened cancellation,
reduction, or threatened reduction of coverage within forty-eight
(48) hours after notice or to complete the remedy within ten
(10) days after notice, Landlord may, at its option, enter
upon the Leased Premises and attempt to remedy the condition, and
Tenant shall forthwith pay the cost to Landlord as Rent. Landlord
shall not be liable for any damage or injury caused to any property
of Tenant or of others located on the Leased
Premises as a result of such entry
unless such damage or injury is a result of the negligence or
willful misconduct of Landlord or its employees, agents or
contractors.
b.
Use of Roof and Site by
Tenant . Tenant may
access and utilize the roof of the Building, or any area on the
site of the Property subject to any applicable approval by
governmental entities, to install and operate communications or
other equipment throughout the Term and any extension thereof, with
the prior written consent of Landlord, which consent shall not be
unreasonably withheld, delayed or denied. Such access and use shall
be at no additional cost to Tenant, with the exception of the cost
of installation, maintenance, and removal of such equipment which
shall be Tenant’s sole responsibility. Tenant may also, with
Landlord’s written approval, install and utilize conduit for
access/wiring of such equipment and connection of such equipment to
the Premises.
SECTION 10
COMPLIANCE WITH
LAW
10.01
Compliance
. Tenant shall not use the Premises
or permit anything to be done in or about the Premises which will
in any way conflict with any law, statute, ordinance, or
governmental rule or regulation now in force or which may
hereafter be enacted or promulgated. Tenant shall, at its sole cost
and expense, promptly comply with all laws, statutes, ordinances,
and governmental rules, regulations, or requirements now in force
or which may hereafter be in force, and with the requirements of
any board of fire underwriters or other similar body now or
hereafter constituted relating to or affecting the condition, use,
or occupancy of the Premises, but, however, excluding any required
structural changes which are not related to or affected by
Tenant’s improvements or acts.
Landlord warrants and represents
that, as of the Initial Premises Commencement Date, (i) the
Building and the Premises shall be in compliance with all
applicable laws, codes, ordinances, orders, rules and
regulations of any governmental or other public authority,
(ii) all electrical, plumbing, lighting, fire protection and
heating, ventilation and air conditioning systems shall be in good
condition and repair, and (iii) there shall be no restrictions
or other legal impediments, either imposed by law (including
without limitation applicable zoning and building codes or
ordinances) or by instrument, which would prevent the use of the
Premises for the permitted uses hereunder. If at any time during
the Term, as the same may be extended, applicable law shall not
permit the use of the Premises in accordance with the original
intended use designated in Section 1.01 of this Lease, then
Tenant, without waiving any other right Tenant may have on account
thereof, may terminate this Lease upon no less than thirty (30)
days’ prior written notice to Landlord.
SECTION 11
ALTERATIONS AND
REPAIRS
11.01
Tenant to Maintain
. Tenant shall, at its sole expense,
keep the Premises in good repair and tenantable condition during
the Term of this Lease. Tenant shall not, without the prior written
consent of the Landlord, whose consent shall not be unreasonably
withheld, make any alterations, improvements, or additions to the
Premises (except for the Tenant Improvements, which shall be
governed by the Work Letter), including, but not limited to,
partitions, wall coverings, floor coverings, and special lighting
or equipment installations. Notwithstanding the foregoing,
Landlord’s approval shall not be required for any
alterations, improvements or additions desired by Tenant which are
nonstructural in nature and the cost of which does not exceed
$50,000 in each instance. Prior to commencement of any alterations,
improvements, or additions for which Tenant is required to obtain
Landlord’s approval, Tenant shall submit to Landlord a set of
fully detailed working drawings and specifications for the proposed
alteration, prepared by a licensed architect or engineer reasonably
approved by the Landlord. In particular, but not as a limitation,
the working drawings must fully detail changes to mechanical,
wiring, and electrical, lighting, plumbing, and HVAC systems to
Landlord’s reasonable satisfaction. Landlord may require
additional reasonable information for approval of the alterations
because of the inadequacy of the drawings and specifications.
Landlord shall notify Tenant at the time of granting its consent
whether it shall require Tenant to remove any portion of the
alterations at the expiration of the Term or other termination of
this Lease. As
