Colorado-Fort Collins- Prospect East Business Park Lease - Sharp Point Properties LLC and Advanced Energy Industries Inc.
LEASE AGREEMENT
OFFICE AND INDUSTRIAL SPACE
This Lease Agreement is made and entered into as of the 20th day of March, 2000,
by and between Sharp Point Properties, LLC ("Landlord"), whose address is 4875 Pearl
East Cr. #300, Boulder, CO 80301, and Advanced Energy Industries, 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 meaning:
A. "Area" shall mean the parcel of land depicted on Exhibit "A" attached
hereto and commonly known and referred to as Lots 9, 10 and 23 of Prospect East
Business Park , Fort 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, restrooms, loading and service areas,
and like areas or facilities which are located in the Area and which are designated
by the Landlord as areas or facilities available for the nonexclusive use in common
by persons designated by the Landlord.
D. "Leased Premises" shall mean the premises herein leased to the Tenant
by the Landlord.
E. "Tenant's Prorata Share" as to the Building in which the Leased Premises
are located shall mean an amount (expressed as a percentage) equal to the number
of square feet included in the Leased Premises divided by the total number of leasable
square feet included in said Building. The Tenant's Prorata Share as to Common Areas
shall mean an amount (expressed as a percentage ) equal to the number of square
feet included in the Leased Premises divided by the total number of leasable square
feet included in all Buildings located in the Area. The Tenant's Prorata Share for
Common Areas may change from time to time as the leasable square footage in all
Buildings located in the Area is increased or decreased.
2. Leased Premises. The Landlord hereby leases unto the Tenant, and the Tenant
hereby leases from the Landlord, the following described premises:
Space All in Building located on Lots 9, 10 and 23 of Prospect East
Business Park consisting of 63,555 square feet, all as depicted on
Exhibit "B" attached hereto.
3. Base Term. The term of this Lease shall commence at 12:00 noon on November 1,
2000, and, unless sooner terminated as herein provided for, shall end at 12:00 noon
on November 1, 2015 ("Lease Term"). Except as specifically provided to the contrary
herein, the Leased Premises shall, upon the termination of this Lease, by virtue
of the expiration of the Lease Term or otherwise, be returned to the Landlord by
the Tenant in as good or better condition than when entered upon by the Tenant,
ordinary wear and tear excepted.
4. Rent. Tenant shall pay the following rent for the Leased Premises:
A. Base Monthly Rent. Tenant shall pay to Landlord, without notice and
without setoff, at the address of Landlord as herein set forth, the following Base
Monthly Rent ("Base Monthly Rent"), said Base Monthly Rent to be paid in advance
on the first day of each month during the term hereof. In the event that this Lease
commences on a date other than the first day of a month, the Base Monthly Rent for
the first month of the Lease Term shall be prorated for said partial month. Below
is a schedule of Base Monthly Rental payments as agreed upon:
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During Lease Term
For Period To Period
A Base Monthly
Starting Ending
Rent of November
1, 2000 November 1, 2015 $62,230.94 NNN per
month ($11.75psf) +
annual CPI
Increases on:
November
1, 2001
November
1, 2002
November
1, 2003
November
1, 2004
November
1, 2005
November
1, 2006
November
1, 2007
November
1, 2008
November
1, 2009
November
1, 2010
November
1, 2011
November
1, 2012
November
1, 2013
November
1, 2014
B. Lease Term Adjustment. If, for any reason, other than delays caused
by the Tenant, the Leased Premises are not ready for Tenant's occupancy on November
1, 2000, the Tenant's rental obligation and other monetary expenses (i.e. taxes,
utilities, etc.) shall be abated in direct proportion to the number of days of delay.
It is hereby agreed that the premises shall be deemed ready for occupancy on the
day the Landlord receives a T.C.O. or C.O. from the appropriate authority, or on
the day the Landlord gives Tenant the keys to the Leased Premises if a building
permit has not been applied for and/or is not required by the appropriate authority.
C. Cost of Living Adjustment. The Base Monthly Rental specified in paragraph
4A above shall be recalculated for each Lease Year as defined hereinafter following
the first Lease Year of this Lease Agreement. The recalculated Base Monthly Rental
shall be hereinafter referred to as the "Adjusted Monthly Rental". The Adjusted
Monthly Rental for each Lease Year after the first Lease Year shall be the greater
of: (i) the amount of the previous year's Adjusted Monthly Rental, (or the Base
Monthly Rental if calculating the Adjusted Monthly Rental for the second Lease Year),
or (ii) an amount calculated by the rent adjustment formula set forth below. In
applying the rent adjustment formula, the following definitions shall apply:
(1) "Lease Year" shall mean a period of twelve (12) consecutive full calendar
months with the first Lease Year commencing on the date of the commencement of the
term of this Lease and each succeeding Lease Year commencing upon the anniversary
date of the first Lease Year; however, if this Lease does not commence on the first
day of a month, then, the first Lease Year and each succeeding Lease Year shall
commence on the first day of the first month following each anniversary date of
this Lease;
(2) "Bureau" shall mean the Bureau of Labor Statistics of the United States
Department of Labor or any successor agency that shall issue the Price Index referred
to in this Lease Agreement.
(3) "Price Index" shall mean the "Consumer Price Index-All Urban Consumers-All
Items (CPI-U) U.S. City Average (1982-84=100)" issued from time to time by the Bureau.
In the event the Price Index shall hereafter be converted to a different standard
reference base or otherwise revised, the determination of the increase in the Price
Index shall be made with the use of such conversion factor, formula or table as
may be published by Prentice-Hall, Inc. or failing such publication, by another
nationally recognized publisher of similar statistical information. In the event
the Price Index shall cease to be published, then, for the purposes of this paragraph
4C there shall be substituted for the Price Index such other index as the Landlord
and the Tenant shall agree upon, and if they are unable to agree within sixty (60)
days after the Price Index ceases to be published, such matter shall be determined
by arbitration in accordance with the Rules of the American Arbitration Association.
(4) "Base Price Index" shall mean the Price Index released to the public
during the second calendar month preceding the commencement of this Lease Agreement.
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(5) "Revised Price Index" shall mean the Price Index released to the public
during the second calendar month preceding the Lease Year for which the Base Annual
Rental is to be adjusted;
(6) "Basic Monthly Rental" shall mean the Basic Monthly Rental set forth
in subparagraph 4A above. The rent adjustment formula used to calculate the Adjusted
Monthly Rental is as follows:
Adjusted Monthly = Revised Price Index X Base Monthly Rental
Rental -----------------------------------------
Base Price Index
Not withstanding the above formula, the Adjusted Monthly Rental shall not be less
than 103% or greater than 106% of the previous year's Adjusted Monthly Rental, or
the Basic Monthly Rental if such adjustment is for the Second Lease Year. The Adjusted
Monthly Rental as herein above provided shall continue to be payable monthly as
required in paragraph 4A above without necessity of any further notice by the Landlord
to the Tenant.
D. Total Net Lease. The Tenant understands and agrees that this Lease
is a total net lease (a "net, net, net lease"), whereby the Tenant has the obligation
to reimburse the Landlord for a share of all costs and expenses (taxes, assessments,
other charges, insurance, trash removal, Common Area operation and maintenance and
like costs and expenses), incurred by the Landlord as a result of the Landlord's
ownership and operation of the Area.
5. Security Deposit [THIS SECTION WAS DELETED BY THE PARTIES PRIOR TO
EXECUTION]
6. Use of Premises. Tenant shall use the Leased Premises only for Office
and Manufacturing and for no other purpose whatsoever except with the written consent
of Landlord. Tenant shall not allow any accumulation of trash or debris on the Leased
Premises or within any portion of the Area. All receiving and delivery of goods
and merchandise and all removal of garbage and refuse shall be made only by way
of the rear and/or other service door provided therefore. In the event the Leased
Premises shall have no such door, then these matters shall be handled in a manner
satisfactory to Landlord. No storage of any material outside of the Leased Premises
shall be allowed unless first approved by Landlord in writing, and then in only
such areas as are designated by Landlord. Tenant shall not commit or suffer any
waste on the Leased Premises nor shall Tenant permit any nuisance to be maintained
on the Leased Premises or permit any disorderly conduct or other activity having
a tendency to annoy or disturb any occupants of any part of the Area and/or any
adjoining property.
7. Laws and Regulations. -- Tenant Responsibility. The Tenant shall, at
its sole cost and expense, comply with all laws and regulations of any governmental
entity, board, commission or agency having jurisdiction over the Leased Premises.
Tenant agrees not to install any electrical equipment that overloads any electrical
paneling, circuitry or wiring and further agrees to comply with the requirements
of the insurance underwriter or any governmental authorities having jurisdiction
thereof.
8. Landlord's Rules and Regulations. Landlord reserves the right to adopt
and promulgate rules and regulations applicable to the Leased Premises and from
time to time amend or supplement said rules or regulations. Notice of such rules
and regulations and amendments and supplements thereto shall be given to Tenant,
and Tenant agrees to comply with and observe such rules and regulations and amendments
and supplements thereto provided that the same apply uniformly to all Tenants of
the Landlord in the Area.
9. Parking. If the Landlord provides off street parking for the common
use of Tenants, employees and customers of the Area, the Tenant shall park all vehicles
of whatever type used by Tenant and/or Tenant's employees only in such areas thereof
as are designated by Landlord for this purpose, and Tenant accepts the responsibility
of seeing that Tenant's employees park only in the areas so designated. Tenant shall,
upon the request of the Landlord, provide to the Landlord license numbers of the
Tenant's vehicles and the vehicles of Tenant's employees.
10. Control of Common Areas. -- Exclusive control of the Landlord. All
Common Areas shall at all times be subject to the exclusive control and management
of Landlord, notwithstanding that Tenant and/or Tenant's employees and/or customers
may have a nonexclusive right to
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the use thereof. Landlord shall have the right from time to time to establish,
modify and enforce rules and regulations with respect to the use of said facilities
and Common Areas.
11. Taxes.
A. Real Property Taxes and Assessments. The Tenant shall pay to the
Landlord on the first day of each month, as additional rent, the Tenant's Prorata
Share of all real estate taxes and special assessments levied and assessed against
the Building in which the Leased Premises are located and the Common Areas. If the
first and last years of the Lease Term are not calendar years, the obligations of
the Tenant hereunder shall be prorated for the number of days during the calendar
year that this Lease is in effect. The monthly payments for such taxes and assessments
shall be $6,356.00 until the Landlord receives the first tax statement for the referred
to properties. Thereafter, the monthly payments shall be based upon 1/12th of the
prior year's taxes and assessments. Once each year the Landlord shall determine
the actual Tenant's Prorata Share of taxes and assessments for the prior year and
if the Tenant has paid less than the Tenant's Prorata Share for the prior year the
Tenant shall pay the deficiency to the Landlord with the next payment of Base Monthly
Rent, or, if the Tenant has paid in excess of the Tenant's Prorata Share for the
prior year the Landlord shall forthwith refund said excess to the Tenant. Additionally,
upon Lease expiration or termination Landlord shall also determine Tenant's Prorata
Share of taxes and assessments for the calendar year in which the Lease expires
or terminates based on the most recent valuation and estimate of taxes provided
by Boulder County. If the Tenant has paid less than the Tenant's prorated Prorata
Share for the current year the Tenant shall pay the deficiency, or, if the Tenant
has paid in excess of the Tenant's prorated Prorata Share for the current year the
Landlord shall forthwith refund the excess to the Tenant.
B. Personal Property Taxes. Tenant shall be responsible for, and
shall pay promptly when due, any and all taxes and/or assessments levied and/or
assessed against any furniture, fixtures, equipment and items of a similar nature
installed and/or located in or about the Leased Premises by Tenant.
C. Rent Tax. If a special tax, charge or assessment is imposed or
levied upon the rents paid or payable hereunder or upon the right of the Landlord
to receive rents hereunder (other than to the extent that such rents are included
as a part of the Landlord's income for the purpose of an income tax), the Tenant
shall reimburse the Landlord for the amount of such tax within fifteen (15) days
after demand therefore is made upon the Tenant by the Landlord.
D. Other Taxes, Fees and Charges. Tenant shall pay to Landlord, on
the first day of each month, as additional rent, Tenant's Pro Rata Share of any
"Other Charges" (as hereinafter defined) levied, assessed, charged or imposed against
the Area, as a whole. Unless paid directly by Tenant to the authority levying, assessing,
charging or imposing same, Tenant shall also pay to Landlord, on the first day of
the month following payment of same by Landlord, the entire costs of any such "Other
Charges" levied, assessed, charged or imposed against the Leased Premises, Tenant's
use of same, or Tenant's conduct of business thereon. For purposes of this provision,
"Other Charges" shall mean and refer to any and all taxes, assessments, impositions,
user fees, impact fees, utility fees, transportation fees, infrastructure fees,
system fees, license fees, and any other charge or assessment imposed by any governmental
authority or applicable subdivision on the Area, the Leased Premises or the ownership
or use of the Area or Leased Premises, or the business conducted thereon, whether
or not formally denominated as a tax, assessment, charge or other nominal description,
whether now in effect or hereafter enacted or imposed (excluding, however, Landlord's
income taxes).
E. Should Landlord protest and win a reduction in the real estate
taxes for the Building and Area, Tenant shall be obligated to pay its Prorata Share
of the cost of such protest, if the protest is handled by a party other than the
Landlord.
12. Insurance.
A. Landlord's Insurance. Landlord shall obtain and maintain such
fire and casualty insurance on the core and shell of the Building in which the Leased
Premises are located and the Common Areas, as well as such loss of rents, business
interruption, liability or any other insurance, as it deems appropriate, with such
companies and on such terms and conditions as Landlord deems acceptable. Such insurance
shall not be required to cover any of Tenant's inventory, furniture, furnishings,
fixtures, equipment or tenant improvements (whether or not installed on the Leased
Premises by or for Tenant and whether or not included within the tenant finish provided
by Landlord), and Landlord shall not be obligated to repair any damage thereto or
replace any of same, and Tenant shall have no interest in any proceeds of Landlord's
insurance.
B. Tenant's Insurance. Tenant shall, at its sole cost and expense,
obtain and maintain throughout the term of this Lease, on a full replacement cost
basis, "all risk" insurance covering all of Tenant's inventory, furniture, furnishings,
fixtures, equipment and all tenant improvements or tenant finish (whether or not
installed by Landlord) and betterments located on or within the Leased Premises.
In addition, Tenant shall obtain and maintain, at its sole cost and expense, comprehensive
general 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, including protection against death, personal injury and property damage.
Such liability coverage shall be written on an "occurrence" basis, with limits of
not less than $1,000,000.00 combined single limit coverage.
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All policies of insurance required to be carried by Tenant hereunder shall
be written by an insurance company licensed to do business in the State of Colorado,
and shall name Landlord as an additional named insured and/or loss payee, as Landlord
may direct. Each such policy shall provide that same shall not be changed or modified
without at least thirty (30) days' prior written notice to Landlord and any mortgagee
of Landlord. Certificates evidencing the extent and effectiveness of all Tenant's
insurance shall be delivered to Landlord. The limits of such insurance shall not,
under any circumstances, limit the liability of Tenant under this Lease.
In the event that Tenant fails to maintain any of the insurance required
of it pursuant to this provision, Landlord shall have the right (but not the obligation)
at Landlord's election, to pay Tenant's premiums or to arrange substitute insurance
with an insurance company of Landlord's choosing, in which event any premiums advanced
by Landlord shall constitute additional rent payable under this Lease and shall
be payable by Tenant to Landlord immediately upon demand for same. Landlord shall
also have the right, but no the obligation, whether or not Tenant maintains coverage
to carry any such insurance as Landlord may elect in order to provide coverage in
the event Tenant fails to properly maintain such insurance.
The rights of Landlord hereunder shall be in addition to, and not in lieu
of, of any other rights or remedies available to Landlord under this Lease or provided
by law or in equity. Without limiting the foregoing, in the event that coverage
of any risk for which Tenant is responsible pursuant to this Section 12 is ultimately
provided by coverage maintained by Landlord, whether due to Tenant's failure to
provided or maintain such insurance or otherwise, Tenant shall promptly reimburse
Landlord for an amount equal to any deductible incurred, immediately upon demand
for same.
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
canceled without thirty (30) days prior written notice thereof being given to Landlord.
D. Tenant's Share of Landlord Insurance. Tenant shall pay the Landlord
as additional rent Tenant's Prorata Share of the insurance secured by the Landlord
pursuant to "12A" above. Payment shall be made on the first day of each month as
additional rent. The monthly payments for such insurance shall be $ 212.00 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.
A. 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. For all utility services used or consumed on
the Leased Premises which are included in utility services to an area larger than
the Leased Premises, 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 $ N/A for water and $ N/A for Public
Service. 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. Additionally, upon Lease expiration or termination Landlord shall also determine
Tenant's Prorata Share of the annualized actual costs of the foregoing expenses
for the number of days the Lease is in effect during the calendar year in which
the Lease expires or terminates. If the annualized 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 annualized actual costs to the Landlord, or,
if the annualized actual costs are less than the estimated costs, the Landlord shall
forthwith refund the excess payment to the Tenant. For purposes of calculating Tenant's
share of expenses under this paragraph, annualized actual costs shall be the sum
of actual costs for the year at the time of reconciliation plus the total estimated
costs prorated for the number of days from the date the last actual cost was paid
to the end of the year. For all utility services used or consumed on the Leased
Premises in which the utility service
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is used solely on the Leased Premises, the Tenant shall forthwith upon taking occupancy
of the Leased Premises make arrangements with the Public Service Company, U.S. West
or other appropriate utility company to pay the utilities used on the Leased Premises
and to have the same billed to the Tenant at the address designated by the Tenant.
Should there be a time where the Landlord remains responsible for utilities supplied
to the Leased Premises, the Landlord shall bill the Tenant therefore and the Tenant
shall promptly reimburse the Landlord therefore. In no event shall Landlord be liable
for any interruption or failure in the supply of any such utility to the Leased
Premises.
In the event the utility company supplying water and/or sewer to
the Leased Premises determines that an additional service fee, impact fee, and/or
assessment, or any other type of payment or penalty is necessary due to Tenant's
use and occupancy of the Building, nature of operation and/or consumption of utilities,
said expense shall be borne solely by the Tenant. Said expense shall be paid promptly
and any repairs requested by the utility company shall be performed by Tenant immediately
and without any delay.
B. Landlord Controls Selection. Landlord has advised Tenant that
presently Public Service Company of Colorado ("Utility Service Provider") is the
utility company selected by Landlord to provide electricity and gas service for
the Building. Notwithstanding the foregoing, if permitted by Law, Landlord shall
have the right at any time and from time to time during the Lease Term to either
contract for service from a different company or companies providing electricity
and/or gas service (each such company shall hereinafter be referred to as an("Alternative
Service Provider") or continue to contract for service from the Utility Service
Provider.
C. Tenant Shall Give Landlord Access. Tenant shall cooperate with
Landlord, Utility Service Provider, and any Alternative Service Provider at all
times and, as reasonably necessary, shall allow Landlord, Utility Service Provider,
and any Alternative Service Provider reasonable access to the Building's electric
lines, feeders, risers, wiring, gas lines, and any other machinery within the Premises.
D. Landlord Not Responsible for Interruption of Service. Landlord
shall in no way be liable or responsible for any loss, damage, or expense that Tenant
may sustain or incur by reason of any change, failure, interference, disruption,
or defect in the supply or character of the electrical and/or gas energy furnished
to the Premises, or if the quantity or character of the electric and/or gas energy
supplied by the Utility Service Provider or any Alternate Service Provider is no
longer available or suitable for Tenant's requirements, and no such change, failure,
defect, unavailability, or unsuitability shall constitute an actual or constructive
eviction, in whole or in part, or entitle Tenant to any abatement or diminution
of rent, or relieve Tenant from any of its obligations under the Lease.
14. Maintenance Obligations of Landlord. Except as herein otherwise specifically
provided for, Landlord shall keep and maintain the roof and exterior of the Building
of which the Leased Premises are a part in good repair and condition. Tenant shall
repair and pay for any damage to roof, foundation and external walls caused by Tenant's
action, negligence or fault.
15. Maintenance Obligations of the Tenant. Subject only to the maintenance
obligations of the Landlord as herein provided for, the Tenant shall, during the
entire Lease Term, including all extensions thereof, at the Tenant's sole cost and
expense, keep and maintain the Leased Premises in good condition and repair, including
specifically the following:
A. Electrical Systems. Tenant agrees to maintain in good working
order and to make all required repairs and replacements to the electrical systems
for the Leased Premises.
B. Plumbing Systems. Tenant agrees to maintain in good working order
and to make all required repairs or replacements to the plumbing systems for the
Leased Premises.
C. Inspections and Service. Upon termination of Lease Agreement,
Tenant agrees, before vacating premises, to employ at Tenant's sole cost and expense,
a licensed contractor to inspect, service and write a written report on the systems
referred to in "A" and "B" of this Paragraph. Landlord shall have the right to order
such an inspection if Tenant fails to provide evidence of such inspection, and,
to follow the recommendations of such reports and to charge the expense thereof
to the Tenant.
D. Tenant's Responsibility for Building and Area Repairs. Tenant
shall be responsible for any repairs required for any part of the Building or Area
of which the Leased Premises are a part if such repairs are necessitated by the
actions or inactions of Tenant.
E. Cutting Roof. Tenant must obtain in writing the Landlord's approval
prior to making any roof penetrations. Failure by Tenant to obtain written permission
to penetrate a roof shall relieve Landlord of any roof repair obligations as set
forth in Paragraph "14" hereof. Tenant further agrees to repair, at its sole cost
and expense, all roof penetrations made by the Tenant and to use, if so requested
by Landlord, a licensed contractor selected by the Landlord to make such penetrations
and repairs.
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F. Glass and Doors. The repair and replacement of all glass and doors
on the Leased Premises shall be the responsibility of the Tenant. Any such replacements
or repairs shall be promptly completed at the expense of the Tenant.
G. Liability for Overload. Tenant shall be responsible for the repair
or replacement of any damage to the Leased Premises, the Building or the Area which
result from the Tenant's movement of heavy articles therein or thereon. Tenant shall
not overload the floors of any part of the Leased Premises.
H. Liability for Overuse and Overload of Operating Systems. Tenant
shall be responsible for the repair, upgrade, modification, and/or replacement of
any operating systems servicing the Leased Premises and/or all or part of the Building
which is necessitated by Tenant's change or increase in use of or non-disclosed
use of all or a part of the Leased Premises. Operating systems include, but are
not limited to, electrical systems; plumbing systems (both water and natural gas);
heating, ventilating, and air conditioning systems; telecommunications systems;
computer and network systems; lighting systems, fire sprinkler systems; security
systems; and building control systems, if any.
I. Inspection of Leased Premises "As Is" Conditions [THIS SECTION
WAS DELETED BY THE PARTIES PRIOR TO EXECUTION]
J. Failure of Tenant to Maintain Premises. Should Tenant neglect
to keep and maintain the Leased Premises as required herein, the Landlord shall
have the right, but not the obligation, to have the work done and any reasonable
costs plus a ten percent (10%) overhead charge therefore shall be charged to Tenant
as additional rental and shall become payable by Tenant with the payment of the
rental next due.
16. Common Area Maintenance. Tenant shall be responsible for Tenant's
Prorata share of the total costs incurred for the operation, maintenance and repair
of the Common Areas, including, but not limited to, the costs and expenses incurred
for the operation, maintenance and repair of parking areas (including restriping
and repaving); removal of snow; utilities for common lighting and signs; normal
HVAC maintenance and elevator maintenance (if applicable); trash removal; security
to protect and secure the Area; common entrances, exits, and lobbies of the Building;
all common utilities, including water to maintain landscaping; replanting in order
to maintain a smart appearance of landscape areas; supplies; depreciation on the
machinery and equipment used in such operation, maintenance and repair; the cost
of personnel to implement such services; the cost of maintaining in good working
condition the HVAC system(s) for the Leased premises; the cost of maintaining in
good working condition the elevator(s) for the Leased Premises, if applicable. These
costs shall be estimated on an annual basis by the Landlord and shall be adjusted
upwards or downwards depending on the actual costs for the preceding twelve months.
Tenant shall pay monthly, commencing with the first month of the Lease Term, as
additional rent due under the terms hereof, a sum equal to Tenant's Prorata Share
of the estimated costs for said twelve (12) month period, divided by 12. The estimated
initial monthly costs are $2,383.00 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.
Additionally, upon Lease expiration or termination Landlord shall also determine
Tenant's prorated Prorata Share of the annualized actual costs of the foregoing
expenses for the number of days the Lease is in effect during the calendar year
in which the Lease expires or terminates. If the annualized actual costs are greater
than the estimated costs, the Tenant shall pay its prorated Tenant's Prorata Share
of the difference between the estimated costs and the annualized actual costs to
the Landlord, or, if the annualized actual costs are less than the estimated costs,
the Landlord shall forthwith refund the excess to the Tenant. For purposes of calculating
Tenant's share of expenses under this paragraph, annualized actual costs shall be
the sum of actual costs for the year at the time of reconciliation plus the total
estimated costs prorated for the number of days from the date the last actual cost
was paid to the end of the year.
17. Inspection of and Right of Entry to Leased Premises--Regular, Emergency,
Reletting. Landlord and/or Landlord's agents and employees, shall have the right
to enter the Leased Premises at all times during regular business hours and, at
all times during emergencies, to examine the Leased Premises, to make such repairs,
alterations, improvements or additions as Landlord deems necessary, and Landlord
shall be allowed to take all materials into and upon said Leased Premises that may
be required therefore without the same constituting an eviction of Tenant in whole
or in part, and the rent reserved shall in no way 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.
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18. Alteration-Changes and Additions-Responsibility. Unless the Landlord's
approval is first secured in writing, the Tenant shall not install or erect inside
partitions, add to existing electric power service, add telephone outlets, add light
fixtures, install additional heating and/or air conditioning or make any other changes
or alterations to the interior or exterior of the Leased Premises. Any such changes
or alterations shall be made at the sole cost and expense of the Tenant. At the
end of this Lease, all such fixtures, equipment, additions, changes and/or alterations
(except trade fixtures installed by Tenant) shall be and remain the property of
Landlord; provided, however, Landlord shall have the option to require Tenant to
remove any or all such fixtures, equipment, additions and/or alterations and restore
the Leased Premises to the condition existing immediately prior to such change and/or
installation, normal wear and tear excepted, all at Tenant's cost and expense. All
such work shall be done in a good and workmanlike manner and shall consist of new
materials unless agreed to otherwise by Landlord. Any and all repairs, changes and/or
modifications thereto shall be the responsibility of, and at the cost of, Tenant.
Landlord may require adequate security from Tenant assuring no mechanics' liens
on account of work done on the Leased Premises by Tenant and may post the Leased
Premises, or take such other action as is then permitted by law, to protect the
Landlord and the Leased Premises against mechanics' liens. Landlord may also require
adequate security to assure Landlord that the Leased Premises will be restored to
their original condition upon termination of this Lease.
19. Sign Approval. Except for signs which are located inside of the Leased
Premises and which are not attached to any part of the Leased Premises, the Landlord
must approve in writing any sign to be placed in or on the interior or exterior
of the Leased Premises, regardless of size or value. Specifically, signs attached
to windows of the Leased Premises must be so approved by the Landlord. As a condition
to the granting of such approval, Landlord shall have the right to require Tenant
to furnish a bond or other security acceptable to Landlord sufficient to insure
completion of and payment for any such sign work to be so performed. Tenant shall,
during the entire Lease Term, maintain Tenant's signs in good condition and repair
at Tenant's sole cost and expense. Tenant shall, remove all signs at the termination
of this Lease, at Tenant's sole risk and expense and shall in a workmanlike manner
properly repair any damage and close any holes caused by the installation and/or
removal of Tenant's signs. Tenant shall give Landlord prior notice of such removal
so that a representative of Landlord shall have the opportunity of being present
when the signage is removed, or shall pre-approve the manner and materials used
to repair damage and close the holes caused by removal.
20. Right of Landlord to Make Changes and Additions. Landlord reserves
the right at any time to make alterations or additions to the Building or Area of
which the Leased Premises are a part. Landlord also reserves the right to construct
other buildings and/or improvements in the Area and to make alterations or additions
thereto, all as Landlord shall determine. Easements for light and air are not included
in the leasing of the Leased Premises to Tenant. Landlord further reserves the exclusive
right to the roof of the Building of which the Leased Premises are a part. Landlord
also reserves the right at any time to relocate, vary and adjust the size of any
of the improvements or Common Areas located in the Area, provided, however, that
all such changes shall be in compliance with the requirements of governmental authorities
having jurisdiction over the Area.
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 untenable thereby, as determined by Landlord,
an appropriate reduction of the rent shall be allowed for the unoccupied portion
of the Leased Premises until repair thereof shall be substantially completed. If
the Landlord elects to exercise the right herein vested in it to terminate this
Lease as a result of damage to or destruction of the Leased Premises or the Building
in which the Leased Premises are located, said election shall be made by giving
notice thereof to the Tenant within thirty (30) days after the date of said damage
or destruction.
22. Governmental Acquisition of Property. The parties agree that Landlord
shall have complete freedom of negotiation and settlement of all matters pertaining
to the acquisition of the Leased Premises, the Building, the Area, or any part thereof,
by any governmental body or other person or entity via the exercise of the power
of eminent domain, it being understood and agreed that any financial settlement
made or compensation paid respecting said land or improvements to be so taken, whether
resulting from negotiation and agreement or legal proceedings, shall be the exclusive
property of Landlord, there being no sharing whatsoever between Landlord and Tenant
of any sum so paid. In the event of any such taking, Landlord shall have the right
to terminate this Lease on the date possession is delivered to the condemning person
or authority. Such taking of the property shall not be a breach of this Lease by
Landlord nor give rise to any claims in Tenant for damages or compensation from
Landlord. Nothing herein contained shall be construed as depriving the Tenant of
the right to retain as its sole property any compensation paid for any tangible
personal property owned by the Tenant which is taken in any such condemnation proceeding.
23. Assignment or Subletting. Tenant may not assign this Lease, or sublet
the Leased Premises or any part thereof, without the written consent of Landlord.
No such assignment or subletting if approved by the Landlord shall relieve Tenant
of any of its obligations hereunder, and, the performance or nonperformance of any
of the covenants herein contained by subtenants shall be considered as the performance
or the nonperformance by the Tenant.
24. Warranty of Title. Subject to the provisions of the following three
(3) paragraphs hereof, Landlord covenants it has good right to lease the Leased
Premises in the manner described herein and that Tenant shall peaceably and quietly
have, hold, occupy and enjoy the Leased Premises during the term of the Lease.
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25. Access. Landlord shall provide Tenant nonexclusive access to the Leased
Premises through and across land and/or other improvements owned by Landlord. Landlord
shall have the right, during the term of this Lease, to designate, and to change,
such nonexclusive access.
26. Subordination. Tenant agrees that this Lease shall be subordinate
to any mortgages, trust deeds or ground leases that may now exist or which may hereafter
be placed upon said Leased Premises and to any and all advances to be made thereunder,
and to the interest thereon, and all renewals, replacements and extensions thereof.
Tenant shall execute and deliver whatever instruments may be required for the above
purposes, and failing to do so within ten (10) days after demand in writing, does
hereby make, constitute and irrevocably appoint Landlord as its attorney-in-fact
and in its name, place and stead so to do. Tenant shall in the event of the sale
or assignment of Landlord's interest in the Area or in the Building of which the
Leased Premises form a part, or in the event of any proceedings brought for the
foreclosure of or in the event of exercise of the power of sale under any mortgage
made by Landlord covering the Leased Premises, attorn to the purchaser and recognize
such purchaser as Landlord under this Lease.
27. Easements. The Landlord shall have the right to grant any easement
on, over, under and above the Area for such purposes as Landlord determines, provided
that such easements do not materially interfere with Tenant's occupancy and use
of the Leased Premises.
28. Indemnification and Waiver Except in the case of a breach or default
in the performance of any obligation under this Lease, each party shall indemnify,
defend and hold harmless the other party and nothing in this Lease shall be construed
as imposing any liability on them for any loss, costs, expense (including reasonable
attorney's fees), or any claims, suits, actions or damages arising from the ownership,
use, control or occupancy of any portion of the Project including the Building,
Common Areas and Premises unless such loss, cost, expense, claim, suit or action
is a result of or caused by the negligent acts or omissions of such other party
or its agents, servants, employees, contractors, or invitees.
Tenant shall not indemnify Landlord for acts or failure to observe or comply with
any of the rules by any other Tenant or occupant of the Building or Project that
adversely affect Tenant's use and occupancy in which Landlord has been put on notice
of such adverse impact to Tenant.
29. Acts or Omission of Others. The Landlord, or its employees or agents,
or any of them, shall not be responsible or liable to the Tenant or to the Tenant's
guests, invitees, employees, agents or any other person or entity, for any loss
or damage that may be caused by the acts or omissions of other tenants, their guests
or invitees, occupying any other part of the Area or by persons who are trespassers
on or in the Area, or for any loss or damage caused or resulting from the bursting,
stoppage, backing up or leaking of water, gas, electricity or sewers or caused in
any other manner whatsoever, unless such loss or damage is caused by or results
from the negligent acts of the Landlord, its agents or contractors.
30. Interest on Past Due Obligations. Any amount due to Landlord not paid
when due shall bear interest at two (2%) percent per month from due date until paid.
Payment of such interest shall not excuse or cure any default by Tenant under this
Lease.
31. Holding Over-Double Last Month's Rent. If Tenant shall remain in possession
of the Leased Premises after the termination of this Lease, whether by expiration
of the Lease Term or otherwise, without a written agreement as to such possession,
then Tenant shall be deemed a month-to-month Tenant. The rent rate during such holdover
tenancy shall be equivalent to double the monthly rent paid for the last full month
of tenancy under this Lease, excluding any free rent concessions which may have
been made for the last full month of the Lease. No holding over by Tenant shall
operate to renew or extend this Lease without the written consent of Landlord to
such renewal or extension having been first obtained. Tenant shall indemnify Landlord
against loss or liability resulting from the delay by Tenant in surrendering possession
of the Leased Premises including, without limitation, any claims made with regard
to any succeeding occupancy bounded by such holdover period.
32. Modification or Extensions. No modification or extension of this Lease
shall be binding upon the parties hereto unless in writing and unless signed by
the parties hereto.
33. Notice Procedure. All notices, demands and requests which may be or
are required to be given by either party to the other shall be in writing and such
that are to be given to Tenant shall be deemed to have been properly given if served
on Tenant or an employee of Tenant or sent to Tenant by United States registered
or certified mail, return receipt requested, properly sealed, stamped and addressed
to Tenant at 1625 Sharp Point Drive, 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 Cr. #300, Boulder, CO 80301 or at such other place
as Landlord may from time to time designate in a written notice to Tenant. Any notice
given by mailing shall be effective as of the date of mailing.
34. Memorandum of Lease-Notice to Mortgagee. The Landlord and Tenant agree
not to place this Lease of record, but upon the request of either party to execute
and acknowledge so the same may be recorded a short form lease indicating the names
and respective addresses of the
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Landlord and Tenant, the Leased Premises, the Lease Term, the dates of the commencement
and termination of the Lease Term and options for renewal, if any, but omitting
rent and other terms of this Lease. Tenant agrees to an assignment by Landlord of
rents and of the Landlord's interest in this Lease to a mortgagee, if the same be
made by Landlord. Tenant further agrees if requested to do so by the Landlord that
it will give to said mortgagee a copy of any request for performance by Landlord
or notice of default by Landlord; and in the event Landlord fails to cure such default,
the Tenant will give said mortgagee a sixty (60) day period in which to cure the
same. Said period shall begin with the last day on which Landlord could cure such
default before Tenant has the right to exercise any remedy by reason of such default.
All notices to the mortgagee shall be sent by United States registered or certified
mail, postage prepaid, return receipt requested.
35. Controlling Law. The Lease, and all terms hereunder shall be construed
consistent with the laws of the State of Colorado. Any dispute resulting in litigation
hereunder shall be resolved in court proceedings instituted in Larimer County and
in no other jurisdiction.
36. Landlord Not a Partner With the Tenant. Nothing contained in this
Lease shall be deemed, held or construed as creating Landlord as a partner, agent,
associate of or in joint venture with Tenant in the conduct of Tenant's business,
it being expressly understood and agreed that the relationship between the parties
hereto is and shall at all times remain that of Landlord and Tenant.
37. Partial Invalidity. If any term, covenant or condition of this Lease
or the application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease or the application of such
term, covenant or condition to persons and circumstances other than those to which
it has been held invalid or unenforceable, shall not be affected thereby, and each
term, covenant and condition of this Lease shall be valid and shall be enforced
to the fullest extent permitted by law.
38. Default-Remedies of Landlord.
A. The occurrence of any of the following events shall constitute
a default by Tenant under this Lease:
(1) Failure to make due and punctual payment of rent or any other
charges, assessments or amounts due or payable or required to be paid under this
Lease; or
(2) Neglect or failure by Tenant to perform or observe, or any
other breach of, any other term, covenant or condition of this Lease; or
(3) Adjudication of Tenant as bankrupt or insolvent, or filing
by or against Tenant of any petition in bankruptcy or for reorganization or for
the adoption of any arrangement under the Bankruptcy Code; application is made for
the appointment of receiver or conservator for Tenant's business or property; or
assignment by Tenant is made of its property for the benefit of its creditors; or
Tenant's interest in this Lease or any substantial amount of Tenant's other real
or personal property is levied or executed upon by process of law; or
(4) Petition or other proceeding is made by or against Tenant
for its dissolution or liquidation; or voluntary dissolution or liquidation of Tenant;
or
(5) Abandonment of the Leased Premises, or any part thereof,
by Tenant for a period of time in excess of thirty (30) consecutive days.
B. If Tenant shall default in the payment of rent or in the keeping
of any of the terms, covenants or conditions of this Lease to be kept and/or performed
by Tenant or shall otherwise commit any event of default as defined above, Landlord
may upon the expiration of any applicable cure, immediately, or at any time thereafter,
reenter the Leased Premises, remove all persons and property therefrom, without
being liable to indictment, prosecution for damage therefore, or for forcible entry
and detainer and repossess and enjoy the Leased Premises, together with all additions
thereto or alterations and improvements thereof. Landlord may, at its option, at
any time and from time to time thereafter, relet the Leased Premises or any part
thereof for the account of Tenant or otherwise, and receive and collect the rents
therefore and apply the same first to the payment of such expenses as Landlord may
have incurred in recovering possession and for putting the same in good order and
condition for rerental, and expense, commissions and charges paid by Landlord in
reletting the Leased Premises. Any such reletting may be for the remainder of the
term of this Lease or for a longer or shorter period. In lieu of reletting such
Leased Premises, Landlord may occupy the same or cause the same to be occupied by
others. Whether or not the Leased Premises or any part thereof be relet, Tenant
shall pay the Landlord the rent and all other charges required to be paid by Tenant
up to the time of the expiration of this Lease or such recovered possession, as
the case may be and thereafter, Tenant, if required by Landlord, shall pay to Landlord
until the end of the term of this Lease, the equivalent of the amount of all rent
reserved herein and all other charges required to be paid by Tenant, less the net
amount received by Landlord for such reletting, if any, unless waived by written
notice from Landlord to Tenant. No action by Landlord to obtain possession of the
Leased Premises and/or to recover any amount due to Landlord hereunder shall be
taken as a waiver of Landlord's right to require full and complete performance by
Tenant of all terms hereof,
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including payment of all amounts due hereunder or as an election on the part of
Landlord to terminate this Lease Agreement. If the Leased Premises shall be reoccupied
by Landlord, then, from and after the date of repossession, Tenant shall be discharged
of any obligations to Landlord under the provisions hereof for the payment of rent.
If the Leased Premises are reoccupied by the Landlord pursuant hereto, and regardless
of whether the Leased Premises shall be relet or possessed by Landlord, all fixtures,
additions, furniture, and the like then on the Leased Premises may be retained by
Landlord. In the event Tenant is in default under the terms hereof and, by the sole
determination of Landlord, has abandoned the Leased Premises, Landlord shall have
the right to remove all the Tenant's property from the Leased Premises and dispose
of said property in such a manner as determined best by Landlord, at the sole cost
and expense of Tenant and without liability of Landlord for the actions so taken
and without liability on the part of Landlord for any action 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, 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. Tenant hereby grants to the Landlord a security interest in and
to any and all of Tenant's property located in, on or adjacent to the Leased Premises
as security for Tenant's full and complete performance of the terms and conditions
of this Lease, which security interest is enforceable by Landlord as provided by
the laws of the State of Colorado.
E. In addition to all rights and remedies granted to Landlord by
the terms hereof, Landlord shall have available any and all rights and remedies
available at law or in equity, or under the statutes of the State of Colorado. No
remedy herein or otherwise conferred upon or reserved to Landlord shall be considered
exclusive of any other remedy but shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law or in equity
or by statute. Further, all powers and remedies given by this Lease to Landlord
may be exercised, from time to time, and as often as occasion may arise or as may
be deemed expedient. No delay or omission of Landlord to exercise any right or power
arising from any default shall impair any such right or power or shall be considered
to be a waiver of any such default or acquiescence thereof. The acceptance of rent
by Landlord shall not be deemed to be a waiver of any breach of any of the covenants
herein contained or of any of the rights of Landlord to any remedies herein given.
F. If Tenant shall, for any reason, vacate the Leased Premises before
the current expiration date, landlord shall have the right to accelerate rental
payments and any and all future rent payments due during the course of the Lease
Term shall become immediately payable in full to the Landlord.
39. Legal Proceedings-Responsibilities. In the event of proceeding at
law or in equity by either party hereto, the defaulting party shall pay all costs
and expenses, including all reasonable attorney's fees incurred by the non-defaulting
party in pursuing such remedy, if such non-defaulting party is awarded substantially
the relief requested.
40. Administrative Charges. In the event any check, bank draft or negotiable
instrument given for any money payment hereunder shall be dishonored at any time
and from time to time, for any reason whatsoever not attributable to Landlord, Landlord
shall be entitled, in addition to any other remedy that may be available, (1) to
make an administrative charge of $100.00 or three times the face value of the check,
bank draft or negotiable instrument, whichever is smaller, and (2) at Landlord's
sole option, to require Tenant to make all future rental payments in cash or cashiers
check.
41. Hazardous Materials and Environmental Considerations.
A. Tenant covenants and agrees that Tenant and its agents, employees,
contractors and invitees shall comply with all Hazardous Materials Laws (as hereinafter
defined). Without limiting the foregoing, Tenant covenants and agrees that it will
not use, generate, store or dispose of, nor permit the use, generation, storage
or disposal of Hazardous Materials (as hereinafter defined) on, under or about the
Leased Premises, nor will it transport or permit the transportation of Hazardous
Materials to or from the Leased Premises, except in full compliance with any applicable
Hazardous Materials Laws. Any Hazardous Materials located on the Leased Premises
shall be handled in an appropriately controlled environment which shall include
the use of such equipment (at Tenant's expense) as is necessary to meet or exceed
standards imposed by any Hazardous Materials Laws and in such a way as not to interfere
with any other tenant's use of its premises. Upon breach of any covenant contained
herein, Tenant shall, at Tenant's sole expense, cure such breach by taking all action
prescribed by any applicable Hazardous Materials Laws or by any governmental authority
with jurisdiction over such matters.
B. Tenant shall inform Landlord at any time of (I) any Hazardous
Materials it intends to use, generate, handle, store or dispose of, on or about
or transport from, the Leased Premises and (ii) of Tenant's discovery of any event
or condition which constitutes a violation
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of any applicable Hazardous Materials Laws. Tenant shall provide to Landlord copies
of all communications to or from any governmental authority or any other party relating
to Hazardous Materials affecting the Leased Premises.
C. Tenant shall indemnify and hold Landlord harmless from any and
all claims, judgments, damages, penalties, fines, costs, liabilities, expenses or
losses (including, without limitation, diminution on value of the Leased Premises,
damages for loss or restriction on use of all or part of the Leased Premises, sums
paid in settlement of claims, investigation of site conditions, or any cleanup,
removal or restoration work required by any federal, state or local governmental
agency, attorney's fees, consultant fees, and expert fees) which arise as a result
of or in connection with any breach of the foregoing covenants or any other violation
of any Hazardous Materials laws by Tenant. The indemnification contained herein
shall also accrue to the benefit of the employees, agents, officers, directors and/or
partners of Landlord.
D. Upon termination of this Lease and/or vacation of the Leased Premises,
Tenant shall properly remove all Hazardous Materials and shall then provide to Landlord
an environmental audit report, prepared by a professional consultant satisfactory
to Landlord and at Tenant's sole expense, certifying that the Leased Premises have
not been subjected to environmental harm caused by Tenant's use and occupancy of
the Leased Premises. Landlord shall grant to Tenant and its agents or contractors
such access to the Leased Premises as is necessary to accomplish such removal and
prepare such report.
E. "Hazardous Materials" shall mean (a) any chemical, material, substance
or pollutant which poses a hazard to the Leased Premises or to persons on or about
the Leased Premises or would cause a violation of or is regulated by any Hazardous
Materials Laws, and (b) any chemical, material or substance defined as or included
in the definitions of "hazardous substances", "hazardous wastes", "extremely hazardous
waste", "restricted hazardous waste", "toxic substances", "regulated substance",
or words of similar import under any applicable federal, state or local law or under
the regulations adopted or publications promulgated pursuant thereto, including,
but not limited to, the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended, 42 U.S.C. Sec. 9601, et seq.; the Hazardous Materials Transportation
Act, as amended, 49 U.S.C. Sec. 1801, et seq.; the Resource Conservation and Recovery
Act as amended, 42 U.S.C. Sec. 6901, et seq.; the Solid Waste Disposal Act, 42 U.S.C.
Sec. 6991 et seq.; the Federal Water Pollution Control Act, as amended, 33 U.S.C.
Sec. 1251, et seq.; and Sections 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 of Hazardous Materials, or to industrial hygiene
or the environmental conditions on, under or about the Leased Premises. Said term
shall be deemed to include all such laws as are now in effect or as hereafter amended
and all other such laws as may hereafter be enacted or adopted during the term of
this Lease.
F. All obligations of Tenant hereunder shall survive and continue
after the expiration of this Lease or its earlier termination for any reason.
G. Tenant further covenants and agrees that it shall not install
any storage tank (whether above or below the ground) on the Leased Premises without
obtaining the prior written consent of the Landlord, which consent may be conditioned
upon further requirements imposed by Landlord with respect to, among other things,
compliance by Tenant with any applicable laws, rules, regulations or ordinances
and safety measures or financial responsibility requirements.
H. Should any local governmental entity having jurisdiction over
the Leased Premises require any type of environmental audit or report prior to or
during the occupancy of the Leased Premises by the Tenant, such cost of the audit
or report shall be the sole responsibility of the Tenant.
42. Entire Agreement. It is expressly understood and agree by and between
the parties hereto that this Lease sets forth all the promises, agreements, conditions,
and understandings between Landlord and/or its agents and Tenant relative to the
Leased Premises and that there are no promises, agreements, conditions, or understandings
either oral or written, between them other than that are herein set forth.
43. Guarantee and Financial Statements [THIS SECTION WAS DELETED BY THE
PARTIES PRIOR TO EXECUTION]
44. Estoppel Certificates. Within no more than 5 days after receipt of
written request, the Tenant shall furnish to the owner a certificate, duly acknowledged,
certifying, to the extent true:
A. That this Lease is in full force and effect.
B. That the Tenant knows of no default hereunder on the part of the
owner, or if it has reason to believe that such a default exists,
the nature thereof in reasonable detail.
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C. The amount of the rent being paid and the last date to which rent
has been paid.
D. That this Lease has not been modified, or if it has been modified,
the terms and dates of such modifications.
E. That the term of this Lease has commenced.
F. The commencement and expiration dates.
G. Whether all work to be performed by the owner has been completed.
H. Whether the renewal term option has been exercised if applicable.
I. Whether there exist any claims or deductions from, or defenses to,
the payment of rent.
J. Such other matters as may be reasonably requested by owner.
If the Tenant fails to execute and deliver to the owner a completed certificate
as required under this section, the Tenant hereby appoints the owner as its Attorney-In-Fact
to execute and deliver such certificate for and on behalf of the Tenant.
45. Financial Statements. As requested by the Landlord, Tenant shall provide
copies of its most recent financial statements and shall also provide Landlord with
up to three (3) prior years of financial statements, if so requested.
46. Brokers. Tenant represents and warrants that it has dealt only with
N/A (the "Broker") in the negotiation of this Lease. Landlord shall make payment
of the commission according to the terms of a separate agreement with the Broker.
Tenant hereby agrees to indemnify and hold Landlord harmless of an from any and
all loss, costs, damages or expenses (including, without limitation, all attorney's
fees and disbursements) by reason of any claim of, or liability to, any other broker
or person claiming through Tenant and arising out of this Lease. Additionally, Tenant
acknowledges and agrees that Landlord shall have no obligation for payment of any
brokerage fee or similar compensation to any person with whom Tenant has dealt or
may deal with in the future with respect to leasing of any additional or expansion
space in the Building or any renewals or extensions of this Lease unless specifically
provided for by separate written agreement with Landlord. In the event any claim
shall be made against Landlord by any other broker who shall claim to have negotiated
this Lease on behalf of Tenant or to have introduced Tenant to the Building or to
Landlord, Tenant hereby indemnifies Landlord, and Tenant shall be liable for the
payment of all reasonable attorney's fees, costs, and expenses incurred by Landlord
in defending against the same, and in the event such broker shall be successful
in any such action, Tenant shall, upon demand, make payment to such broker.
47. 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
48. 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.
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49. Real Estate Broker Disclosure. Tenant acknowledges that William W.
Reynolds (individually as Landlord, or as a principal in Landlord if Landlord is
an entity) is a licensed Colorado real estate broker, acting on his own behalf in
connection with this lease transaction. Tenant furthermore acknowledges that neither
William W. Reynolds nor The W.W. Reynolds Companies, Inc., a licensed Colorado real
estate brokerage firm, of which William W. Reynolds is a principal, is representing
Tenant in connection with this lease transaction.
IN WITNESS WHEREOF, the parties have executed this Lease as of the date hereof.
LANDLORD: SHARP POINT PROPERTIES, LLC
---------------------------------
By: /s/ William W. Reynolds
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TENANT: ADVANCED ENERGY INDUSTRIES, INC.
-----------------------------------
By: /s/ Richard P. Beck /s/ Hollis L. Caswell /s/ Douglas S. Schatz
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RICHARD P. BECK
VICE PRESIDENT, FINANCE
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ENVIRONMENTAL INDEMNITY AGREEMENT
THIS INDEMNITY is given as of this 20 day of March, 2000, by Advanced Energy Industries,
Inc. ("Indemnitor," whether one or more), to and for the benefit of Sharp Point
Properties, LLC ("Landlord").
WHEREAS, Sharp Point Properties, LLC is Landlord under a proposed Lease
Agreement dated , 200 0, ("the Lease") in which Advanced Energy Industries, Inc.
, a Delaware Corporation is the proposed tenant ("Tenant"), regarding the Leased
Premises commonly known as Lots 9, 10 and 23 of Prospect East Business Park ("Leased
Premises"); and
WHEREAS, Landlord is unwilling to enter into the Lease with Tenant unless
the Indemnitor agrees to the indemnities hereinafter provided.
NOW, THEREFORE, in consideration of the matters recited above and to induce
Landlord to enter into the Lease with Tenant, Indemnitor undertakes and agrees as
follows:
1. Indemnitor shall indemnify, defend and hold Landlord harmless from
and against any and all suits, actions, legal or administrative proceedings, demands,
claims, judgements, damages, penalties, fines, costs, liabilities, expenses or losses
which arise during or after the lease term as a result of or in connection with
the presence, use, storage, disposal, transportation or discharge, by or on behalf
of Tenant, of any Hazardous Materials (as defined in the Lease) on, in or under
or affecting all or any portion of the Leased Premises or any surrounding areas,
or the disposition or transportation of any Hazardous Materials therefrom, or any
breach by Tenant of the provisions concerning Environmental Considerations as contained
in paragraph 41 of the Lease, or the failure of the Tenant to comply with any applicable
Hazardous Materials Laws (as defined in the Lease), or otherwise resulting from
or arising out of any action or non-action of Tenant or Tenant's operations on the
Leased Premises.
Without limiting the generality of the foregoing, it is expressly agreed
by Indemnitor that such indemnity shall also include the following: diminution in
value of the Leased Premises, damages for loss or restriction on use of rental or
useable space or any amenity of the Leased Premises, damages arising from any adverse
impact on marketing of space or delay in delivering possession to a subsequent tenant
or purchaser, restoration of the Leased Premises to a condition not materially different
from its original contour, appearance and condition; costs incurred in connection
with any investigation of site conditions or any clean-up, remedial, removal or
restoration work required by any federal, state or local governmental agency, political
subdivision, court order or lender of the Landlord; costs of removal and lawful
disposal off site of all Hazardous Materials; all sums paid in settlement of claims,
attorneys' fees, consultant fees and expert fees.
The foregoing indemnities shall survive termination or expiration of the
Lease and shall also accrue to the benefit of the employees, agents, officers, directors
and/or partners of Landlord.
2. Indemnitor agrees to pay to Landlord, from time to time,upon demand
therefor, an amount equal to any and all expenses therefore incurred by Landlord
for which Landlord is entitled to indemnification. Any sums not so paid shall thereafter
bear interest at a rate of two percent (2%) per month until paid in full.
3. The rights and remedies of Landlord under this indemnity shall be in
addition to any rights or remedies available to Landlord under the terms of the
Lease. The obligations of Indemnitor hereunder shall not be affected or impaired
by: (i) the assertion by Landlord against Tenant of any rights or remedies reserved
to Landlord pursuant to provisions of the Lease; (ii) the commencement of summary
or any other proceedings against Tenant; (iii) failure of the Landlord to enforce
any of its rights against Tenant pursuant to the Lease or otherwise; (iv) the granting
by Landlord of any extensions of time to Tenant; (v) the assignment or transfer
of the Lease by Tenant; (vi) with release or discharge of Tenant from its obligations
under the Lease in any creditors', receivership, bankruptcy or other proceedings
or the commencement or pendency of any such proceedings; or (vii) the impairment,
limitation or modification of the liability of Tenant or the estate of Tenant in
bankruptcy, or of any remedy for the enforcement of tenant's liability under the
Lease, resulting from the operation of any present or future bankruptcy code or
other statute, or from the decision of any court.
4. Until all Tenant's obligations under the Lease are fully performed,
Indemnitor (i) waives any right of subrogation which it might have against Tenant
by reason of any payments or acts of performance by Indemnitor pursuant to its obligations
hereunder; (ii) waives any other right which Indemnitor may have against Tenant
by reason of any one or more payments or acts in compliance with its obligations
hereunder; and (iii) subordinates any liability or indebtedness of tenant held by
Indemnitor to the obligations of Tenant to Landlord under the Lease.
5. All notices for or allowed hereunder shall be deemed given and received
with (a) personally delivered, or (b) at the time the same is deposited in the United
States mail, postage prepaid, first class mail, or addressed to the applicable party
at the address indicated below for such
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party, or as to each party, at such other address as shall be designated by such
party in a written notice to the other party:
If to Indemnitor, to:
Advanced Energy Industries, Inc.
1625 Sharp Point Drive
Fort Collins, CO 80525
If to Landlord, to:
Sharp Point Properties, LLC
4875 Pearl East Circle #300
Boulder, CO 80301
6. In the event of default in its obligations hereunder, Indemnitor agrees
to reimburse Landlord for reasonable attorneys' fees and costs incurred by Landlord
in the enforcement of such obligations.
7. This Environmental Indemnity Agreement shall apply to the Lease and
any extension or renewal thereof, and any holdover term following the term thereof,
or any such extension or renewal.
8. This Environmental Indemnity Agreement shall be governed by and construed
in accordance with the laws of the State of Colorado.
9. The covenants and agreements herein contained shall extend to and be
binding upon the parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Environmental
Indemnity Agreement on the day and year first above written.
/s/ Richard P. Beck /s/ Hollis L. Caswell /s/ Douglas S. Schatz
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"Indemnitor" - ADVANCED ENERGY INDUS TRIES, INC.
/s/ William W. Reynolds
------------------------------------------------
"Landlord" SHARP POINT PROPERTIES, LLC
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EXHIBIT "A"
SITE PLAN
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EXHIBIT "B"
INTERIOR SPACE PLAN
Tenant Improvements shall be added to Exhibit "B" at a later date.
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EXHIBIT "C"
LANDLORD AND TENANT'S CONSTRUCTION OBLIGATIONS
LANDLORD'S CONSTRUCTION OBLIGATIONS
Landlord shall pay for all Tenant Improvements to the Premises
based upon a mutually agreed upon space plan. In no event
shall the Landlord be obligated to any Tenant Improvement cost
in excess of $12.00 psf.
TENANT'S CONSTRUCTION OBLIGATIONS
Tenant shall be responsible for any costs above $12.00 psf.
Tenant will, within fifteen (15) business days of receiving
billing, Tenant shall reimburse Landlord for the costs
associated with any Tenant's interior improvements directly
paid by Landlord. Plans and all costs associated with Tenant's
interior improvements will be mutually approved by both Tenant
and Landlord on or before March 22, 2000.
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EXHIBIT "D"
Tenant shall submit signage design to Landlord for approval by the Prospect East
Business Park Architectural Control Committee prior to any sign(s) installation.
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EXHIBIT "E"
ADDITIONAL TERMS AND CONDITIONS
1. This Lease is contingent upon Landlord's review and approval of plans
no later than March 15, 2000.
2. Landlord has the right to cancel this Lease Agreement no later than
March 15, 2000. Notice to be given to Tenant by Landlord in writing.
3. The square footage of the Leased Premises shall be adjusted to the
actual, based upon the approved plans as set forth in Number 1. above.
4. The Base Monthly Rent shall be adjusted to equal the square footage of
the Leased Premises as determined in Number 3. above multiplied by
.97917. As way of example, if the square footage of the Leased Premises
as determined in Number 3. above is 63,200 sf the Base Monthly Rent
shall be (63,200 times .97917) $61,883.00.
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