EXHIBIT 10.1(b)
STATE OF COLORADO
COUNTY OF EL PASO
This Lease agreement, made and entered into by and between XXXXX and XXXXX
XXXXX, hereinafter referred to as "Landlord", and SPECTRANETICS CORPORATION,
hereinafter referred to as "Tenant";
WITNESSETH
1. LEASED PREMISES AND TERM: In consideration of the obligation of Tenant to
pay rent as herein provided, and in consideration of the other terms and
covenants hereof, Landlord hereby demises and leases to Tenant and Tenant hereby
takes from Landlord certain premises situated within the County of El Paso,
State of Colorado, more particularly described as follows: APPROX. 24,576 SQ.
FEET CONSISTING OF THE BUILDING LOCATED AT 0000 XXXXX XXXXXXX XXXXXX, XXXX.
XXXXXXX, Xxxxxxxx 00000, WITH A LEGAL DESCRIPTION OF: XXX 0, XXXXXXX XXXXXXXXXX
XXXX A SUB. OF XXX 0, XXXXX 0, XXXX. XXXXXXX, XXXXXXXX together with all rights,
privileges, easements, appurtances and immunities belonging to or in any
pertaining to the said premises and together with the building and other
improvements erected, to have and hold the same for a term commencing on June
01, 2001, and ending 36 months thereafter.
2. RENT AND SECURITY DEPOSIT:
a) Tenant agrees to pay Landlord rent for said premises at the rate of
(39,792.00) THIRTY THREE THOUSAND SEVEN HUNDRED NINETY TWO Dollars per
quarter on a net, net, net rental basis. One such quarterly installment
shall be due on June 01, 2001, and a like quarterly installment shall be
due and payable on or before the first day of each succeeding calendar
quarter during the hereby demised term. Tenant agrees at the time of
execution of this lease, to deposit with the Landlord the cash sum of
(1,433.60) FOURTEEN HUNDRED THIRTY THREE DOLLARS AND 60 CENTS as a
security deposit.
b) Other remedies for nonpayment of rent notwithstanding, if the quarterly
rental payment is not received by Landlord on or before the tenth day of
the month for which it is due, Tenant shall pay Landlord interest on the
overdue amount at the rate of 1-1/2 percent per month from the day the
amount became due until the date it actually is received by Landlord.
3. TAXES AND INSURANCE: As additional rent, Tenant shall pay to Landlord on
the first day of each month 1/12 Tenant's pro rata share of the estimated tax on
the Leased Premises for the current year plus 1/12 Tenant's pro rata share of
the current premium for any liability or casualty insurance carried by Landlord
on the Leased Premises. If the actual real property tax is greater than that
estimated by Landlord, Tenant shall pay the excess amount within thirty days
after billing by Landlord. If the actual real property tax is less than
estimated by Landlord, Landlord shall refund the overpayment to Tenant within
thirty days after payment of the tax by Landlord. As used in this paragraph,
"real property tax" shall mean any form of assessment (both general and
special), levy, penalty, or tax (other than estate or inheritance tax) imposed
by any authority having direct or indirect power tax any legal or equitable
interest of Landlord in the Leased Premises, including any tax on rent (other
than income tax) in lieu of or in addition to normal real property taxes or
assessments. Any such billing by Landlord to Tenant that is not paid within 30
days shall bear interest at 1-1/2% per month. Tenant may, at its sole cost and
expense (in its name or in the name of Landlord, or in the name of both, as it
may deem appropriate) dispute and contest the real property tax, and is such
case, said disputed tax must be paid prior to being contested. Tenant
acknowledges the right to contest solely for a refund. Should the real property
tax contested be held valid, Tenant shall pay all items, court costs, attorney's
fees, interest and penalties relating thereto.
4. CHARACTER OF OCCUPANCY: The demised premises shall be used only for the
purpose of receiving, storing, shipping, and selling products, materials and
merchandise made and/or sold by Tenant, and for such other lawful purposes as
may be incidental thereto. Tenant shall at its own cost and expense obtain any
and all licenses and permits necessary for such use. Tenant shall comply with
all government laws, ordinances and regulations applicable to the use of the
demised premises, and shall promptly comply with all government orders and
directives for the correction, prevention and abatement of nuisances in or
upon, or connected with the demised premises, all at Tenant's sole expense.
Tenant shall not permit the Leased premises to be used in any way which would,
in the opinion of Landlord, be extra hazardous on account of fire or otherwise
or which would an any way increase or render void the fire insurance on the
leased Premises.
5. REPAIRS AND MAINTENANCE: Tenant shall, at its own expense, keep in good
repair and condition the interior and exterior of the Lease Premises. Tenant's
obligation shall extend to the entire Leased Premises, including but not
limited to the roof, exterior walls, gutters, glass, heating, ventilation and
air conditioning systems, plumbing, pipes, fixtures and other equipment,
except that Landlord shall correct any latent defects due to faulty
construction which may exist at the time Tenant takes possession of the Leased
Premises. Tenant also agrees to maintain at its sole expense all grounds,
landscaping and parking areas. Unless otherwise agreed by Landlord and Tenant,
all grounds, landscaping and parking area maintenance and repair shall be
performed by Landlord and Tenant shall be billed for its pro rata share of such
expense. If either Landlord or Tenant fails to perform any duty described
above, the other may give notices of such failure. If the duty is not permitted
by
the responsible party within thirty days after notice (or within a reasonable
shorter period in the case of emergency), the other party may perform the repair
or maintenance work and charge the responsible party for any expense incurred.
The responsible party shall pay the expense incurred. Landlord and landlord's
agents and representatives shall have the right to enter and inspect the demised
premises at any time during reasonable business hours, for the purpose of
ascertaining the condition of the demised premises or in order to make such
repairs as may be required to be made by Tenant or Landlord under the terms of
this Lease. At the termination of this Lease, Tenant shall deliver up the leased
premises with all improvements located thereon in good repair and condition and
will deliver all keys therefore at the office of the Landlord.
6. ALTERATIONS: Tenant shall not make major alterations, additions or
improvements to the demised premises without the prior written consent of
Landlord, which consent shall not be unreasonably withheld. Tenant may, without
the consent of Landlord but at its own expense and in a good workmanlike manner
make such minor alterations, additions or improvements or erect, remove or
alter such partitions, or erect such shelves, bins, machinery and trade
fixtures as it may deem advisable, without altering the basic character of the
building or improvements, and in each case complying with all applicable
government laws, ordinances, regulations and other requirements. At the
termination of this Lease, Tenant shall, if Landlord so elects, remove all
alterations, additions, improvements and partitions erected by Tenant and
restore the premises to their original condition, otherwise such improvements
shall be delivered up to Landlord with the premises. All shelves, bins,
machinery and trade fixtures installed by Tenant may be removed by Tenant at
the termination of this lease if Tenant so elects and shall be so removed if
required by Landlord. All such removals and restorations shall be accomplished
in a good workmanlike manner so as not to damage the primary structure of
structural qualities of the building and other improvements situated on the
demised premises.
7. SIGNS: Tenant shall have the right to install signs as it may desire upon
the roof and exterior walls of said building subject to Landlord's prior
written approval and subject to any governmental laws, ordinances, regulations
and other requirements. Tenant shall remove all such signs at the termination
of this Lease. Such installations and removals shall be made in such manner as
to avoid injury, defacement, or overloading of the building and other
improvements.
8. UTILITIES: Tenant shall pay all charges incurred for any utility services
metered to his demised premises or for Tenant's pro-rata share of the utility
services provided to the demised premises, and billed to Tenant by Landlord.
9. LEASE ASSIGNMENT OR SUBLETTING: Tenant shall not have the right to assign
this Lease or to sublet the whole or any part of the demised premises, unless
prior approval of Landlord is obtained. Not withstanding any such assignment or
subletting Tenant shall at all times remain fully responsible and liable for the
payment of rent herein specified and for compliance with all of its provisions
and covenants of this Lease. Upon the occurrence of an "event of default" as
herein defined, if the demised premises or any part thereof are then assigned or
sublet, Landlord, in addition to any other remedies herein provided or provided
by law, may at its option collect directly from such assignee or subtenant all
rents becoming due to Tenant under such assignment, or sublease and apply such
rent against any sums due to it by Tenant hereunder, and no such collection
shall be construed to constitute a novation or a release of Tenant from the
further performance of its obligations hereunder. Landlord shall also have the
right to assign any of its rights under this Lease.
10. INSURANCE, LIABILITY AND PROPERTY: Landlord shall not be liable to Tenant
or Tenant's employees, agents or visitors, or to any other person whomsoever,
for any injury to person or damage to property on or about the demised
premises, caused by the negligence or misconduct of Tenant, its agents,
servants or employees, or of any other person entering upon the premises under
express or implied invitation of Tenant, or caused by leakage or gas, oil,
water or steam or by electricity emanating from the premises, or due to any
other cause whatsoever, and Tenant agrees to indemnify Landlord and hold it
harmless from any loss, expense or claims arising out of any such damage or
injury. Tenant shall, throughout the demised term, at its sole cost and
expense, provide and keep in force with responsible insurance companies,
satisfactory to Landlord and to any mortgagee under a mortgage constituting a
lien upon the demised premises, public liability and property damage insurance,
the liability limits of said insurance shall be a minimum of $500,000.00 single
limit, protecting Landlord and such mortgagee as well as Tenant against
liability to any employees or servants of Tenant or to any other person
whomsoever arising out of or in connection with Tenant's use of the leased
premises or the condition of the leased premises. Tenant is to furnish Landlord
with certificate of liability. Landlord shall, at Tenants expense, procure and
maintain at all times during the term of this Lease a policy or policies of
insurance covering loss or damage to the premises (exclusive of Tenant's trade
fixtures and equipment), providing protection against all perils included
within the classification of fire, extended coverage, vandalism, malicious
mischief.
11. DAMAGE OR DESTRUCTION: In the event improvements on the premises are damaged
by any casualty which is covered under an insurance policy required to be
maintained pursuant to Paragraph 10, then Landlord may at Landlord's option,
either (a) repair such damage as soon as reasonably possible at Landlord's
expense, in which event this Lease shall continue in full force and effect, or
(b) give written notice to Tenant within thirty (30) days after the date of
occurrence of such damage of Landlord's intention to cancel and terminate this
Lease as of the date of the occurrence of the damage. In the event Landlord
elects to terminate this lease, Tenant shall have the right within ten (10) days
after receipt of the required notice to notify Landlord in writing of Tenant's
intention to repair such damage at Tenant's expense, without reimbursement from
Landlord, in which event this Lease shall continue in full force and effect, and
Tenant shall proceed to make such repairs as soon as reasonably possible. If
Tenant does not give such notice within ten (10) day period this Lease shall be
cancelled and terminated as of the date of the occurrence of such damage. If the
premises are totally destroyed during the term of this Lease from any cause
whether or not covered by the insurance required under Paragraph 10 (including
any destruction required by any authorized public authority), this Lease shall
automatically terminate as of the date of such total destruction.
If the premises are partially destroyed or damaged during the last six (6)
months of the term of this Lease, Landlord may at Landlord's option, cancel and
terminate this lease as of the date of the occurrence of the damage by giving
written notice to Tenant of Landlord's election to do so within thirty (30) days
after the date of such damage by fire or other cause, or to make any restoration
or replacement of any panelings, decorations, office fixtures, partitions,
railings, ceilings, floor covering, equipment, machinery or fixtures or any
other improvements or property installed in the premises by Tenant or at the
direct or indirect expense of Tenant. Tenant shall be required to restore or
replace same in the event of damage.
If the premises are partially destroyed or damaged and Landlord or Tenant
repairs them pursuant to this Lease, the rent payable hereunder for the period
during which such damage and repair continues shall be abated in proportion to
the extent which Tenant's use of the premises is impaired. Except for abatement
of rent, if any, Tenant shall have no claim against Landlord for any damage
suffered by reason of such damage, destruction, repair or restoration. If
Landlord shall be obligated to repair or restore the premises and shall not
commence such repair or restoration within ninety (90) days after such
obligation shall accrue. Tenant may, at Tenant's option, cancel and terminate
this Lease by written notice to Landlord at any time prior to the commencement
of such repair or restoration. In such event this Lease shall terminate as of
the date of such notice.
12. EMINENT DOMAIN:
a) If the whole or any substantial part of the demised premises should be
taken for any public or quasi-public use under any governmental law,
ordinance or by right of eminent domain or by private purchase in lieu
thereof, this Lease shall terminate and the rent shall be abated during the
unexpired portion of this Lease, effective when the physical taking of said
premises shall occur. Separate awards for damage to the respective interests
of Landlord and Tenant hereunder shall be made, and each shall be entitled
to receive and retain such awards as shall be made to it, and the
termination of this Lease shall not affect the rights of the respective
parties to the awards.
b) If less than a substantial part of the demised premises should be taken for
any public or quasi-public use under any government law, ordinance or
regulation, or by right of eminent, or by private purchase in lieu thereof,
this Lease shall not terminate, but the rent payable hereunder during the
unexpired portion of this Lease shall be reduced to such extent as may be
fair and reasonable under all of the circumstances. Separate awards shall be
made in such event for damages to the respective interests of Landlord and
Tenant hereunder.
13. HOLDING OVER: Should Tenant, or any of its successors in interest, hold
over the leased premises, or any part thereof, after the expiration of the term
of this Lease, unless otherwise agreed in writing, such holding over shall
constitute and be construed as tenancy from month to month only, at a rental
equal to the rent paid the last month of the term of this Lease plus twenty per
cent (20%) of such amount.
14. TENANT DEFAULT: The following events shall be events of default by Tenant
under this lease:
a) Tenant shall fail to pay any installment of the rent hereby reserved and
such failure shall continue for a period of ten (10) days.
b) Tenant shall fail to comply with any term, provision, or covenant
of this Lease, other than the payment of rent, and shall not cure such
failure within thirty (30) days.
c) Tenant shall become insolvent, or shall make a transfer in fraud of
creditors, or shall make an assignment for the benefit of creditors.
d) Tenant shall file a petition under any section or chapter of the National
Bankruptcy Act, as amended, or under any similar law or statute of the
United States or any State thereof; or Tenant shall be adjudged bankrupt or
insolvent in proceedings filed against Tenant thereunder.
e) A receiver or Trustee shall be appointed for all or substantially of all
the assets of Tenant.
f) Tenant shall desert or vacate any substantial portion of the premises. Upon
the occurrence of any such events of default, Landlord shall have the
option to pursue any one or more of the following remedies without any
notice of demand whatsoever:
1) Terminate this Lease, in which event Tenant shall immediately surrender
the premises to Landlord, and if Tenant fails so to do, Landlord may,
without prejudice to any other remedy which it may have
for possession or arrearages in rent, enter upon and take possession of
the leased premises and expel or remove Tenant and any other person who
may be occupying said premises or any part thereof, by force if
necessary, without being liable for prosecution or any claim of damages
therefore; and Tenant agrees pay to Landlord on demand the amount of
all loss and damage which Landlord may suffer by reason of such
termination, whether through inability to relet the premises on
satisfactory terms or otherwise, including any damages Landlord may
incur because of special sums expended for fixing up premises for
Tenant.
2) Enter upon and take possession of the leased premises and expel or
remove Tenant and any other person who may be occupying said premises
or any part thereof, by force if necessary, without being liable for
prosecution or any claim for damages therefore, and relet the premises
and receive the rent therefore; and Tenant agrees to pay to Landlord on
demand any deficiency that may arise by reason of such reletting.
3) Enter upon the leased premises, by force if necessary, without being
liable for prosecution or any claim for damages therefore, and do
whatever Tenant is obligated to do under the terms of this Lease; and
the Tenant agrees to reimburse Landlord on demand for any expenses
which Landlord may incur in thus effecting compliance with Tenant's
obligations under this Lease, and Tenant further agrees that Landlord
shall not be liable for any damages, resulting to Tenant from such
action, whether caused by negligence of Landlord or otherwise.
Pursuit of any of the foregoing remedies shall not preclude pursuit of any
of the other remedies herein provided or any other remedies provided by law, nor
shall pursuit of any remedy herein provided constitute a forfeiture or waiver of
any waiver of any rent due to Landlord hereunder or of any damages accruing to
Landlord by reason of the violation of any of the terms, provisions and
covenants herein contained. No waiver by Landlord of any violation or breach of
any of the terms, provisions and covenants herein contained shall be deemed or
construed to constitute a waiver of any other violation or breach of any of the
terms, provisions, and covenants herein contained shall be deemed or construed
to constitute a waiver of any other violation or breach of any of the terms,
provisions, and covenants herein contained. Forbearance by Landlord to enforce
one or more of the remedies herein provided upon an event of default shall not
be deemed or construed to constitute a waiver of such default.
15. ATTORNEY'S FEES. If on account of any breach or default by Tenant in
Tenant's obligations under the terms and conditions of this lease, it shall
become necessary for Landlord to employ an attorney to enforce or defend any of
Landlord's rights or remedies, hereunder, Tenant agrees to pay any reasonable
attorney's fees incurred by Landlord in such connection.
16. QUIET ENJOYMENT. Landlord warrants that it has full right to execute and to
perform this lease and to grant the estate leased, and, that Tenant, upon
payment of the required rents and performing the terms, conditions, covenants
and agreements contained in this Lease, shall peaceably and quietly have, hold
and enjoy the Leased Premises during the full term of this Lease as well as any
extension or renewal. However, Tenant accepts this Lease subject and subordinate
to any underlying lease, mortgage, deed or trust, or other lien presently
existing upon the Leased Premises. Landlord hereby is irrevocably vested with
full power and authority to subordinate Tenant's interest under this agreement
to any underlying lease, mortgage, deed of trust or other lien hereafter placed
on the Leased Premises, and Tenant agrees upon demand to execute additional
instruments subordinating this Lease as Landlord may require. If the interest of
the Landlord under this Lease shall be transferred by reason of foreclosure or
other proceedings for enforcement of any lien, deed of trust or mortgage on the
Leased Premises, Tenant shall be bound to the transferee (sometimes called the
"Purchaser") under the terms, covenants and conditions of the Lease for the
balance of the term remaining, and any extensions or renewals, with the same
force and effect as if the Purchaser were the Landlord under this Lease. Tenant
agrees to attorn to the Purchaser, as its Landlord, the attornment to be
effective and self-operative without the execution of any further instruments
upon the Purchaser succeeding to the interest of the Landlord under this Lease.
The respective rights and obligations of Tenant and the Purchaser upon the
attornment, to the extend of the then remaining balance of the term of this
Lease and any extensions and renewals, shall be and are the same as those set
forth in this Lease.
17. NOTICE ADDRESS: Each provision of this instrument or of any applicable
government laws, ordinances, regulations, and other requirements with reference
to the sending, mailing, or delivery of any payment by Landlord to Tenant or
with reference to the sending, mailing, or delivery of any notice or the making
of any payment by Landlord to Tenant or with reference to the sending, mailing,
or delivery of any notice of the making of any payment by Landlord to Tenant or
with reference to the sending, mailing, or delivery of any notice of the making
of any payment by Tenant shall be deemed to be complied with when and if the
following steps are taken.
a) All rent and other payments required to be made by Tenant to Landlord
hereunder shall be payable to Landlord in El Paso County, Colorado at
the address hereinbelow set forth of at such other address as Landlord
may specify from time to time by written notice delivered in accordance
herewith.
b) All payments required to be made by Landlord to Tenant hereunder shall
be payable to Tenant at the address herein below set forth, or at such
other address within the continental United States as Tenant may
specify from time to time by written notice delivered in accordance
within.
c) Any notice or document required or permitted to be delivered hereunder
shall be deemed to be delivered whether actually received or not when
deposited in the United States Mail, postage prepaid. Registered Mail,
Return Receipt Requested, addressed to the parties hereto at the
respective addresses set out opposite their names below, or at such
other addresses as they have theretofore specified by written notice
delivered in accordance herewith.
Landlord XXXXX and XXXXX XXXXX Tenant SPECTRANETICS CORPORATION
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X.X. XXX 0000 00 XXXXXXXX XXXXX
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XXXX. XXXXXXX, XX 00000 XXXX. XXXXXXX, XX 00000
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If and when, included the term "landlord" as used in this instrument,
there is more than one person, firm, or corporation, all shall jointly
arrange among themselves for their joint execution of such a notice
specifying some individual at some specific address in El Paso County,
Colorado or any other location, for the receipt of notices and payments to
Landlord; if and when, included within the term "Tenant" as used in this
instrument, there is more than one person, firm, or corporation, all shall
jointly arrange among themselves for their joint execution of such a notice
specifying some individual at some specific address within the continental
United States for receipt of notices and payments to Tenant. All parties
included within the terms "Landlord" and Tenant", respectively, shall be
bound by notices given in accordance with the provisions of this paragraph
to the same effect as if each had received such notice.
18. OTHER PROVISIONS:
a) See attached addendum for paragraph 20 through 23.
b) The terms, provisions and covenants and conditions contained in this
Lease, shall apply to, inure to the benefit of, and be binding upon
the parties hereto and upon their respective successors in interest
and legal representatives except as otherwise herein expressly
provided. Words of any gender used in this Lease shall be held and
construed to include any other gender, and words in the singular
number shall be held to include the plural, unless the context
otherwise require.
19. CORPORATE RESOLUTION: If this instrument is executed by a corporation, such
execution has been authorized by a duly adopted resolution of the Board of
Directors at such corporation and copy thereof furnished to Landlord.
Executed the 1st day of June 2001.
LANDLORD TENANT:
BY: /s/ XXXXX X. XXXXX BY: /s/ XXXXXXXX X. XXXXXX
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BY: /s/ XXXXX XXXXX Title: V.P. Operations
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BY:
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Title:
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ADDENDUM TO LEASE
20. RENEWAL OPTION: Tenant shall have the right to renew this Lease for a period
of one (1) additional year at the expiration of the term hereof at a rental rate
to be hereinafter determined, subject to all conditions and agreements herein
contained; provided, however, that Tenant shall notify the Landlord of his
election to renew the Lease by giving Landlord written notice of such election
on or before six (6) months prior to the expiration of the original term
hereof.
21. All snow and ice removal shall be Tenant's responsibility and shall be at
Tenant's expense.
22. Landlord grants to Tenant first right of refusal for the purchase of the
properties located at: 0000 Xxxxx Xxxxxxx Xxxxxx
and
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxx. Xxxxxxx, Xxxxxxxx 00000
23. This renewal Lease will need to be signed by an executive officer of the
corporation.