EXHIBIT 10.1
ASSET PURCHASE AND SALE AGREEMENT
THIS Agreement is entered into as of March 28, 2006, by
Xxxxx'x Liquid Gold, Inc., a Colorado corporation ("Seller")
and Keltec Dispensing Systems USA Inc., a Delaware corporation
("Purchaser").
RECITALS
A. Seller, among other businesses, conducts a plastic
parts production business (the "Business") at 0000 Xxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxx (XXX) (the "Premises").
B. Seller now desires to sell certain assets used in the
conduct of the Business to Purchaser, and Purchaser is willing to
purchase such assets, pursuant to the terms and conditions set
forth below.
AGREEMENT
1. Sale of Assets. At Closing, Seller shall sell and
Purchaser shall acquire the assets listed on Exhibit A attached
hereto (the "Assets"). The Assets shall be transferred at Closing
pursuant to a Xxxx of Sale in the form attached hereto as
Exhibit B. The parties agree to cooperate with each other as
is reasonably necessary to facilitate the transfer of Assets as
provided herein.
2. Purchase Price. The purchase price for the Assets is
(US)$85,000.00 and shall be paid in full at Closing by wire
transfer. The parties will mutually agree on the allocation of
the purchase price among the Assets and shall report the purchase
price payments or receipts on their respective federal income tax
returns in a manner consistent with such allocations.
3. No Liabilities. Purchaser shall not at Closing assume
any liabilities of Seller including by way of example any taxes and
any claims relating to tax filings; legal disputes, lawsuits or
claims; or employee claims, including claims for wages, benefits
or severance.
4. Closing Date. Closing shall take place in Denver,
Colorado on any business day prior to July 1, 2006. Purchaser
shall provide Seller with written notice of the desired Closing
date at least five (5) business days prior thereto and the
Closing shall occur on such date unless Seller requests a later
date that is within five (5) business days of the date Purchaser
requested. In all events the parties shall use their reasonable
efforts to select a mutually acceptable Closing date.
5. Date of Possession; Risk of Loss. Purchaser shall
take possession of the Assets at Closing. Risk of loss of or
damage to the Assets shall be borne by Seller until Closing.
In the event of substantial material loss or damage to the
Assets, or a portion thereof, prior to Closing, Purchaser may
terminate this Agreement.
6. Warranties and Representations of Seller. Seller hereby
makes the following representations and warranties to Purchaser
which currently are and as of Closing shall be true and correct:
a. Title; Condition of Assets. Seller has good,
clear and marketable title to the Assets, free and clear of all
encumbrances, security interests, liens, charges, or claims of
any kind. Seller has no actual knowledge of any latent defects
in any of the Assets that a reasonable inspection would not
disclose. Except for this warranty, the equipment is sold
"AS IS. "
b. Claims and Litigation. There are no actual,
pending or threatened claims or litigation against Seller
relating to the Assets.
7. Employees.
a. Purchaser intends to lease from Seller the
services of ___________, _______________ and ________________
as leased employees (the "Leased Employees") for the initial
total amount of $154,475. This amount is an annual amount and
includes wages and benefits of these employees. Buyer will pay to
Seller the applicable amounts at the date of Seller's normal
payroll payments to the Leased Employees. Such amount shall be
subject to increase as a result of ordinary adjustments Seller
makes to each Leased Employee 's compensation and benefits.
b. The effective date the Leased Employees shall
commence to provide services to Purchaser shall be on a date
Purchaser determines that is on or after the Closing date and
before July 1, 2006. The Leased Employees shall continue to be
available for service to Purchaser only so long as Purchaser is
leasing a portion of the premises under the Lease (as that term
is defined in Section 9.a below).
c. Seller shall be responsible for and indemnify
and hold Purchaser harmless from and against any amounts payable
to the Leased Employees for their respective wages and all other
compensation and benefits including vacation, sick leave, bonus,
health care coverage and other benefits, except in the event of
Purchaser's failure to make the agreed payments to Seller for the
Leased Employees' services as set forth above.
d. Purchaser shall be responsible at its sole cost
and expense for hiring substitute workers for a Leased Employee
during his or her vacation, sick leave and other paid time off or
unpaid leave to which they are entitled under Seller's employee
policies or otherwise pursuant to applicable law.
e. Seller shall not terminate the employment of a
Leased Employee without providing prior notice to Purchaser at
least ten (10) business days prior to any such termination.
8. Conduct Prior to Closing. From the date hereof to
Closing, Seller covenants that:
a. There shall have been no material change in, and
no material decrease in the book value of, the Assets, either
individually or in the aggregate.
b. No debts or liabilities shall have been incurred
which are an encumbrance on the Assets.
9. Conditions to Obligation to Close. Purchaser shall
not be obligated to close this transaction unless, at or prior to
Closing, the following items are either satisfied by Seller or
Purchaser in writing waives such satisfaction:
a. Lease. Purchaser and Seller shall have
negotiated a lease agreement for a portion of the Premises
(including certain equipment) to be executed at the Closing
(the ""Lease").
b. Completion of Due Diligence. Purchaser shall
have completed, to its sole satisfaction, a due diligence review
and investigation of the Assets.
c. Representations and Warranties. Seller's
representations and warranties in Section 6 shall be and remain
true as of the Closing.
d. Consents for Transfers. Seller shall have
received all requisite consents and approvals of all third parties
required for Seller to transfer the Assets or enter into the Lease.
e. No Adverse Change. There shall have been no
material adverse change in the condition of the Assets, other
than reasonable wear and tear.
Seller shall not be obligated to close this transaction
unless at or prior to Closing Seller has obtained any necessary
consent of Citywide Bank under any applicable loan documents to
the transactions contemplated by this Agreement.
10. Indemnity. Seller shall indemnify and hold Purchaser
harmless from and against: (a) any loss, damage, liability or
expense (including reasonable attorneys' fees) (collectively, a
"Claim"), resulting from any misrepresentation made, or breach of
warranty given or covenant made in this Agreement; and (b) all
Claims related to the Assets which have arisen or may arise as a
result of any act or omission occurring prior to Closing.
11. Miscellaneous.
a. Entire Agreement. This Agreement supersedes
all oral statements and representations and contains the parties'
entire agreement with respect to the purchase and sale of the
Assets. Any modification hereof shall not be effective unless
set forth in writing and signed by all of the parties.
b. Governing Law; Venue. This Agreement shall be
construed and enforced in accordance with the laws of the State of
Colorado. The parties agree the venue of any legal action between
the parties will be in Denver County, Colorado.
c. Attorneys' Fees. In any legal action brought to
enforce this Agreement, or to obtain an adjudication, declaratory
or otherwise, of rights hereunder or thereunder, the losing party
shall pay to the prevailing party a reasonable attorney's fee and
all other costs and expenses which may be incurred by such
prevailing party.
d. Counterparts; Facsimile Signatures. This
Agreement may be executed in counterparts each of which shall
be deemed an original hereof. Facsimile copies hereof may be
executed as originals.
[Signature page follows.]
IN WITNESS WHEREOF, the parties have duly executed this
Agreement effect on the date first above written.
SELLER:
XXXXX'X LIQUID GOLD, INC., a Colorado corporation
By: /s/ Xxxx Xxxxxxxxx
Xxxx X. Xxxxxxxxx, President
PURCHASER:
KELTEC DISPENSING SYSTEMS USA INC., a Delaware corporation
By: /s/ Xxxxx Kelders
Xxxxx G.H.J.M. Kelders, President
XXXX OF SALE
For good and valuable consideration, receipt of which is
hereby acknowledged, Xxxxx'x Liquid Gold-Inc., a Colorado
corporation ("Seller") hereby sells, transfers, conveys, assigns
and delivers to Keltec Dispensing Systems USA, Inc., a Delaware
corporation ("Purchaser"), and to its successors and assigns, to
have and to hold forever, and Purchaser hereby acquires from
Seller, all of Seller's right, title and interest in and to the
assets of Seller as set forth on Schedule 1 attached hereto
("Assets"):
Seller hereby warrants to Purchaser and to its successors
and assigns forever that (a) Seller is the true and lawful owner
of the Assets; (b) Seller has good, clear and marketable title to
the Assets; (c) the Assets are free and clear of all title defects
and objections, claims, liens, security interests or other
encumbrances; (d) Seller has the right and all necessary power
and authority to sell the Assets; and (e) Seller will warrant and
defend such title and the sale of the Assets as set forth in the
Asset Purchase and Sale Agreement dated as of March 28, 2006,
between the parties hereto.
This Xxxx of Sale is governed by the laws of the State of
Colorado.
DATED: March 28, 2006.
Xxxxx'x Liquid Gold-Inc., a Colorado corporation
By: /s/ Xxxx Xxxxxxxxx
Title: President & C.E.O.
Signed and delivered in the presence of:
/s/ Xxxxx Kelders
XXXX OF SALE
For good and valuable consideration, receipt of which is
hereby acknowledged, Xxxxx'x Liquid Gold-Inc., a Colorado
corporation ("Seller") hereby sells, transfers, conveys, assigns
and delivers to Keltec Dispensing Systems USA, Inc., a Delaware
corporation ("Purchaser"), and to its successors and assigns, to
have and to hold forever, and Purchaser hereby acquires from
Seller, all of Seller's right, title and interest in and to the
assets of Seller as set forth on Schedule 1 attached hereto
("Assets"):
Seller hereby warrants to Purchaser and to its successors
and assigns forever that (a) Seller is the true and lawful owner
of the Assets; (b) Seller has good, clear and marketable title to
the Assets; (c) the Assets are free and clear of all title defects
and objections, claims, liens, security interests or other
encumbrances; (d) Seller has the right and all necessary power and
authority to sell the Assets; and (e) Seller will warrant and
defend such title and the sale of the Assets as set forth in the
Asset Purchase and Sale Agreement dated as of March 28, 2006,
between the parties hereto.
This Xxxx of Sale is governed by the laws of the State of Colorado.
DATED: March 28, 2006.
Xxxxx'x Liquid Gold-Inc., a Colorado corporation
By: /s/ Xxxx Xxxxxxxxx
Title: President & C.E.O.
Signed and delivered in the presence of:
/s/ Xxxxx Kelders
LEASE
FOR
KELTEC DISPENSING SYSTEMS USA, INC.
THIS LEASE is entered into by Landlord and Tenant as
described in the following Basic Lease Information on the Date
which is set forth for reference only therein. Landlord and
Tenant agree:
ARTICLE 1
1.1 Basic Lease Information. In addition to the terms
which are defined elsewhere in this Lease, the following defined
terms are used in this Lease:
(a) DATE: ________________, 2006.
(b) LANDLORD: Xxxxx'x Liquid Gold, Inc., a Colorado
corporation
(c) LANDLORD'S ADDRESS:
X.X. Xxx 00-X
Xxxxxx, XX 00000-0000
Attn: Xxxx X. Xxxxxxxxx
(d) TENANT: Keltec Dispensing Systems USA, Inc.
(e) TENANT'S ADDRESS:
Keltec Dispensing System USA, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxx Kelders
(f) BUILDING ADDRESS:
0000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
(g) PREMISES: The Premises shown on Exhibit A to
this Lease. The Premises include the Plastic Molding Finish
Floor, two (2) offices above the warehouse and one (1) ground
floor office and conference room, including the Silo and the
overhead crane located in the Building. The Premises also
include certain rights to use areas of the facility in common
with the Landlord, as provided in Article 11 below.
(h) RENTABLE AREA OF THE PREMISES:
Approximately 12,050 square feet.
(i) TERM: 3 years.
(j) COMMENCEMENT DATE:
Ten (10) days after a written notice from
the Tenant
specifying the Commencement Date, but in no
event later
than July 1, 2006.
(k) EXPIRATION DATE:
Three (3) years after the Commencement Date.
(l) MONTHLY RENT:
Rent shall equal $9.00 per rentable square foot
of the Premises per year for an annual rent of
$108,450 or $9037.50 per month.
(m) TENANT'S SHARE:
20% of the gas xxxx of Building B and 90% of the
electric xxxx for Building B reviewed periodically
based on usage.
1.2 Definitions:
(a) ADDITIONAL RENT: Any amounts which this Lease requires
Tenant to pay in addition to Monthly Rent.
(b) BUILDING: The building which is located on the Land and of
which the Premises are a part.
(c) LAND: The land on which the Project is located and which is
described on Exhibit B.
(d) PROJECT: The development consisting of the Land and all
improvements built on the Land including without limitation
the Building, parking lot, parking structure, walkways,
driveways, fences, and landscaping.
(e) RENT: The Monthly Rent and Additional Rent.
If any other provision of this Lease contradicts any definition of
this Article, the other provision will prevail.
1.3 Exhibits. The following addendum and exhibits are
attached to this Lease and are made part of this Lease:
EXHIBIT A--The Premises
EXHIBIT B--Legal Description of the Land
EXHIBIT C--Rules and Regulations
ARTICLE 2
AGREEMENT
Landlord leases the Premises to Tenant, and Tenant leases
the Premises from Landlord, according to this Lease. The duration
of this Lease will be the Term. The Term will commence on the
Commencement Date, and will expire on the Expiration Date.
ARTICLE 3
DELIVERY OF PREMISES
3.1 Delivery of Possession. Landlord will be deemed to
have delivered possession of the Premises to Tenant on the
Commencement Date. It is agreed that Landlord delivered to Tenant
possession of the Premises AS-IS in its present condition on the
Commencement Date. Tenant acknowledges that neither Landlord nor
its agents or employees have made any representations or warranties
as to the suitability or fitness of the Premises for the conduct of
Tenant's business or for any other purpose, nor has Landlord or its
agents or employees agreed to undertake any alterations or construct
any tenant improvements to the Premises.
3.2 Right to Cancel. Either the Landlord or the Tenant may
terminate this Lease upon six (6) months prior written notice to the
other party. In the event of such termination, the terminating
party will give the other party written notice of the termination
and pay the Rent and Expenses due hereunder through the Termination
Date. The Termination Date shall be six (6) months after the date
of delivery of the notice of termination. In the event of such
termination, each party shall be released from future obligations
under this Lease and the Premises shall be returned to the Landlord
pursuant to the terms of this Lease.
3.3 Early Entry. Tenant is permitted entry to the Premises
prior to the Commencement Date for the purpose of painting,
carpeting and installing fixtures or any other purpose permitted
by Landlord. Such early entry will be at Tenant's sole risk and
subject to all the terms and provisions of this Lease as though
the Commencement Date had occurred, except for the payment of Rent
which will commence on the Commencement Date unless otherwise
agreed by Landlord and Tenant. All rights of Tenant under this
Section 3.3 will be subject to the requirements of all applicable
building codes, zoning requirements, and federal, state, and local
laws, rules, and regulations, so as not to interfere with
Landlord's compliance with all laws. Landlord has the right to
impose such additional conditions on Tenant's early entry as
Landlord, in its reasonable discretion, deems appropriate,
including, without limitation, an indemnification of Landlord
and proof of insurance, and will further have the right to require
that Tenant execute an early entry agreement containing such
conditions prior to Tenant's early entry.
ARTICLE 4
MONTHLY RENT
Throughout the Term of this Lease, Tenant will pay Monthly
Rent to Landlord as rent for the Premises. Monthly Rent will be
paid in advance on or before the first day of each calendar month
of the Term. If the Term commences on a day other than the first
day of a calendar month or ends on a day other than the last day
of a calendar month, then Monthly Rent will be appropriately
prorated by Landlord based on the actual number of calendar days
in such month. If the Term commences on a day other than the
first day of a calendar month, then the prorated Monthly Rent for
such month will be paid on or before the first day of the Term.
Monthly Rent will be paid to Landlord, without written notice or
demand, and without deduction or offset, in lawful money of the
United States of America at Landlord's Address, or to such other
address as Landlord may from time to time designate in writing.
ARTICLE 5
UTILITY CHARGES
5.1 Operating Expenses.
(a) In addition to Monthly Rent, beginning on the
Commencement Date, Tenant will pay Tenant's Share of the gas and
electric xxxx (the "Utility Expenses") paid, payable or incurred
by Landlord in each calendar year or partial calendar year during
the Term. If Utility Expenses are calculated for a partial
calendar month, the Utility Expenses will be appropriately prorated.
(b) As used in this Lease, the term "Utility Expenses"
means all reasonable and necessary gas and electric expenses
incurred by Landlord in the operation, maintenance, repair and
management of the Project, (including Common Area utility costs),
gas and electric and charges to the Building.
5.2 Invoice. Landlord will xxxx Utility Expenses to Tenant
monthly and Tenant will pay the invoice within ten (10) days from
receipt.
5.3 Utilities. Tenant shall pay, directly to the appropriate
supplier, the cost of all telephone, cable transmission, and other
utilities and services supplied to the Premises and contracted for
directly by Tenant other than the Utility Expenses. However, if
any such services or utilities are jointly metered with other space
in the Building or the Project, Landlord shall make a reasonable
determination of Tenant's Share of the cost of such utilities and
services and Tenant shall pay such share to Landlord as Additional
Rent in accordance with the provisions of this Article.
5.4 Additional Rent. Amounts payable by Tenant according
to this Article 5 will be payable as Rent, without deduction or
offset. If Tenant fails to pay any amounts due according to this
Article 5, Landlord will have all the rights and remedies
available to it on account of Tenant's failure to pay Rent.
ARTICLE 6
INSURANCE
6.1 Landlord's Insurance. At all times during the Term,
Landlord will carry and maintain:
(a) Fire and extended coverage insurance covering the
Project, its equipment and common area furnishings;
(b) Bodily injury and property damage insurance; and
(c) Such other insurance as Landlord reasonably
determines from time to time.
The insurance coverages and amounts in this Section 6.1 will be
reasonably determined by Landlord, based on coverages carried by
prudent owners of comparable buildings in the vicinity of the Project.
6.2 Tenant's Insurance. Tenant shall maintain in full
force and effect during the entire term of this Lease, at its own
cost and expense, the following policies of insurance:
(a) Commercial General Liability Insurance and
Umbrella Liability Insurance. In an amount equal to that currently
maintained by Tenant, but not less than $2,000,000.00 each
occurrence. If such CGL insurance contains a general aggregate
limit, it shall apply separately to this location. Said policy
shall provide coverage for bodily injury, property damage and
advertising/personal injury arising from premises, operations,
independent contractors, products-completed operations, and
liability assumed under an insured contract both oral and written.
Not more frequently than once each three years, if, in the opinion
of Landlord the amount of Commercial General Liability Insurance
coverage at that time is not adequate, Tenant shall increase the
insurance coverage as reasonably required by Landlord not more
than the amount customarily required by landlords for comparable
buildings.
(b) Commercial Automobile Insurance and Umbrella
Liability Insurance. If Tenant operates owned, hired or non-owned
vehicles at the premises, in an amount equal to that currently
maintained by Tenant, but not less than $1,000,000.00 each
accident. Such insurance shall cover liability arising out of
any auto (including owned, hired and non-owned autos).
(c) Worker's Compensation Insurance and Employers'
Liability Insurance. Worker's Compensation Insurance as required
by law other than the three (3) employees supplied by Landlord and
Employer's Liability Insurance in an amount equal to that currently
maintained by Tenant, but not less than the following:
(1) Bodily Injury by Accident: $1,000,000.00 each
accident
(2) Bodily Injury by Disease: $1,000,000.00 policy
limit; and
(3) Bodily Injury by Disease: $1,000,000.00 each
employee.
(d) Commercial Property Insurance. Covering the
Tenant's Premises including fixtures, inventory, equipment, Tenant
improvements and betterments and all other content of the Premises
and (if any, such as installed by or for Tenant) all mechanical,
plumbing, heating, ventilating, air conditioning, electrical. The
policy shall, at minimum, cover the perils insured under the ISO
Special Causes of Loss Form (CP 10 30), but must include coverage
for the following: vandalism, malicious mischief, sprinkler
leakage. Such insurance shall be in an amount equal to 100% of
the full replacement cost. Any coinsurance requirement in the
policy shall be eliminated through the attachment of an agreed
amount endorsement, or as it otherwise appropriate under the
particular policy form. The proceeds of such insurance, so long
as this Lease remains in effect, shall be used to repair and/or
replace the Premises, and the Leasehold Improvements, fixtures,
glass, equipment, mechanical, plumbing, heating, ventilating, air
conditioning, electrical, telecommunication and other equipment,
systems and facilities so insured.
(e) Other. Any other forms of insurance Landlord
may reasonably require from time to time in form and amounts and
for insurance risks against which a prudent Tenant of comparable
size in a comparable business would protect itself.
6.3 Forms of Insurance. All insurance required to be
carried by Tenant hereunder:
(a) shall be issued by insurance carriers authorized
to conduct business in the state in which the Premises are located
with an A.M. Best's guide rating of no less than A-VII;
(b) shall be written as primary insurance and
non-contributory over any insurance purchased by Landlord;
(c) shall contain a provision whereby each insurer
agrees to give Landlord at least fifteen (15) days' prior written
notice of any cancellation;
(d) may provide for a deductible so long as the
deductible does not exceed $25,000.00 per occurrence;
(e) shall be written on an Occurrence basis, any
policies underwritten as Claims Made will not satisfy the insurance
requirements outlined above in Section 6.2;
(f) shall not be modified to reduce the extent of
coverage or limits required herein without the prior written
consent of Landlord.
(g) as respects the Commercial General Liability,
Commercial Automobile Liability and Umbrella Liability policies,
Tenant shall ensure that the following are added by endorsement
under the ISO (CG 20 11) or comparable form as additional
insureds to the policies;
Owner and Manager, their parent companies,
subsidiaries, affiliate companies and
partnerships and all of their directors,
officers, agents, representatives and employees.
(h) evidence of Commercial Property Insurance shall
be provided under the form XXXXX 24, and certificates of all other
insurance and appropriate endorsements shall be provided under the
form XXXXX 25, said certificates shall be provided to Landlord five
(5) days prior to occupancy and evidence of renewal shall be provided
to Landlord concurrent with the expiry of each policy.
6.4 Failure to Maintain. If Tenant shall fail to acquire
and maintain the insurance required pursuant to this Article after
written notice from Landlord and right to cure during the five (5)
days following the delivery of the notice, Landlord may, in
addition to any other rights and remedies available to Landlord,
but shall not be obligated to, acquire such insurance and pay the
premiums therefore, which premiums shall be payable by Tenant to
Landlord immediately upon demand.
6.5 Blanket Insurance. Tenant may, at its option, satisfy
its insurance obligations hereunder by policies of so-called
blanket insurance carried by Tenant provided that the same shall,
in all respects, comply with the provision hereof. In such event,
Tenant shall not be deemed to have complied with its obligation
hereunder, until Tenant shall have obtained and delivered to
Landlord a certificate of insurance with appropriate endorsements,
or upon Landlord's request, a copy of said policy with endorsements.
6.6 Subrogation. Landlord and Tenant hereby waive any
recovery of damages against each other (including their employees,
officers, directors, agents, or representatives) for loss of damage
to the building, Tenant Improvements and betterments, fixtures,
equipment, and any other personal property to the extent covered
by commercial property insurance or boiler and machinery insurance
required above. If the commercial property insurance and boiler
and machinery insurance purchased by Tenant or Landlord as required
above does not expressly allow the insured to waive rights of
subrogation prior to loss, Tenant and Landlord shall cause the
policies to be endorsed with a waiver of subrogation to the extent
described in this Section 6.6. The cost of the endorsement, if
any, shall be borne exclusively by Tenant and Landlord respectively.
6.7 Adequacy of Coverage. Landlord, its agents and
employees, make no representation that the limits of liability
specified to be carried by Tenant pursuant to this Article 6 are
adequate to protect Tenant. If Tenant believes that any of such
insurance coverage is inadequate, Tenant will obtain such
additional insurance coverage as Tenant deems adequate, at Tenant's
sole expense.
ARTICLE 7
USE
The Premises will be used solely for the manufacturing,
distribution and sale of plastic products, including sales
offices, showrooms and general business office purposes, and
for no other purpose except as otherwise approved in writing by
Landlord in its sole discretion. Tenant shall not change the
original concept for the Premises without the prior written
consent of the Landlord. Tenant will not use or permit the
Premises to be used or occupied for any purpose or in any manner
prohibited by any applicable laws. Tenant will not commit waste
or suffer or permit waste to be committed in, on, or about the
Premises. Tenant will conduct its business and control its
employees, agents, and invitees in such a manner as not to create
any nuisance or interfere with, annoy, or unreasonably disturb
any other occupant of the Project or Landlord in its operation at
the Project.
ARTICLE 8
REQUIREMENTS OF LAW, FIRE INSURANCE
8.1 General. For the purposes of this Section 8.1,
"Applicable Laws" means all laws, statutes, ordinances and
governmental rules, regulations, or requirements now in force
or in force after the Date, the requirements of any board of fire
underwriters or other similar body constituted now or after the
Date, and any direction or permanent occupancy certificate issued
pursuant to any law by any public officer or officers, as well as
the provisions of all recorded documents affecting the Premises.
At its sole cost and expense, Tenant will promptly comply with
Applicable Laws insofar as they relate to (a) Tenant's use,
occupancy, or alteration of the Premises; (b) the condition of
the Premises resulting from Tenant's use, occupancy, or alteration
of the Premises; or (c) alterations to the Premises required as a
result of Tenant's status under Applicable Laws. Tenant will not
be required to comply with Applicable Laws with respect to
structural changes or changes outside the Premises unless related
to (i) Tenant's use or occupancy of the Premises or (ii)
improvements or alterations made by or for Tenant.
8.2 Hazardous Materials.
(a) Landlord will use commercially reasonable efforts
to prevent the manufacture, storage, sale, use, disposal, release,
or discharge of Hazardous Materials on or at the Project in any
manner that violates Environmental Law or which causes there to
be any liability under Environmental Law.
(b) Tenant will not cause, or allow any of Tenant's
employees, agents, customers, visitors, invitees, licensees,
contractors, assignees or subtenants to cause, use or conduct
operations on or at the Premises or the Project or manufacture,
store, sell, use, dispose of, release, or discharge or permit
the manufacture, storage, sale, use, disposal, release, or
discharge of Hazardous Materials on the Project in any manner
which violates Environmental Law or which causes there to be any
liability under Environmental Law. Tenant will indemnify, defend,
and hold Landlord and its officers, employees, and agents
harmless from any and all claims, suits, judgments, actions,
proceedings, damages, penalties, fines, costs, expenses,
liabilities, or losses (including, without limitation, diminution
in value of the Premises, damages for the loss or restriction on
use of rentable or usable space or of any amenity of the Premises,
damages arising from any adverse impact on marketing of space,
and sums paid in settlement of claims, attorneys' fees, consultant
fees, and expert fees (consultants and experts to be selected by
Landlord) which arise during or after the Lease Term as a result
of contamination by Hazardous Materials due to the negligence or
willful misconduct of Tenant or of Tenant's agents or
contractors. This indemnification of Landlord by Tenant
includes, without limitation, costs incurred in connection
with any investigation of site conditions or any cleanup,
remedial, removal, or restoration work required by any federal,
state, or local governmental agency or political subdivision
because of Hazardous Materials present in the soil or groundwater
on or under the Premises. Without limiting the foregoing, if the
presence of any Hazardous Materials on the Premises or the Project
caused or permitted by the negligence or willful misconduct of
Tenant or its agents or contractors results in any contamination
of the Premises or the Project, Tenant will promptly take all
actions at its sole expense as are necessary to return the Premises
or the Project to the condition existing prior to the release of
any such Hazardous Materials to the Premises or the Project,
provided that Landlord's written approval of such actions will
first be obtained, which approval will not be unreasonably
withheld. Landlord shall have the right upon reasonable prior
notice to enter the Premises to inspect the Premises for Tenant's
compliance with this Section. If Landlord has reasonable grounds
to believe that a violation exists, Landlord may retain an
environmental consultant to prepare a Phase II report and to
consult with Landlord at Tenant's expense. Tenant's obligations
under this Section 8.2(b) will survive the expiration or prior
termination of this Lease.
(c) For purposes of this Lease, "Hazardous Materials"
means any explosives, radioactive materials, petroleum products,
hazardous wastes, or hazardous or toxic substances, including,
without limitation, substances defined as "hazardous substances"
or those substances, materials, and wastes listed in the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended, 42 U.S.C. (s)9601-9657; the Hazardous
Materials Transportation Act of 1975, 49 U.S.C. (s)1801-1812;
the Resource Conservation and Recovery Act of 1976, 42 U.S.C.
(s)6901-6987; the United States Department of Transportation
Hazardous Materials Table (49 CFR 172.101); the United States
Environmental Protection Agency Listing (40 CFR Part 302): or
any other federal, state, or local statute, law, ordinance,
code, rule, regulation, order, or decree regulating, relating
to, or imposing liability or standards of conduct concerning
hazardous materials, waste, or substances now or at any time
hereafter in effect (collectively, "Environmental Law").
8.3 Certain Insurance Risks. Tenant will not do or permit
to be done any act or thing upon the Premises or the Project which
would (a) jeopardize or be in conflict with fire insurance policies
covering the Project, and fixtures and property in the Project, or
(b) increase the rate of fire insurance applicable to the Project
to an amount higher than it otherwise would be for the present use
of the Project, or (c) subject Landlord to any liability or
responsibility for injury to any person or persons or to property
by reason of any business or operation being carried on upon the
Premises.
ARTICLE 9
ASSIGNMENT AND SUBLETTING
9.1 General. Tenant, for itself, its heirs, distributees,
executors, administrators, legal representatives, successors and
assigns, covenants that it will not assign, mortgage or encumber
this Lease, nor sublease, or permit the Premises or any part of
the Premises to be used or occupied by others, without the prior
written consent of Landlord in each instance, which consent may be
withheld by Landlord in its sole discretion. Any assignment or
sublease in violation of this Article 9 will be void. If this
Lease is assigned, or if the Premises or any part of the Premises
are subleased or occupied by anyone other than Tenant, Landlord
may, after default by Tenant, collect rent from the assignee,
subtenant or occupant, and apply the net amount collected to
Rent. No assignment, sublease, occupancy or collection will be
deemed a waiver of the provisions of this Section 9.1, the
acceptance of the assignee, subtenant or occupant as tenant, or
a release of Tenant from the further performance by Tenant of
covenants on the part of Tenant contained in this Lease. The
consent by Landlord to an assignment or sublease will not be
construed to relieve Tenant from liability under this Lease,
or obtaining Landlord's prior written consent in writing to any
further assignment or sublease. No permitted subtenant may
assign or encumber its sublease or further sublease all or any
portion of its subleased space, or otherwise permit the subleased
space or any part of its subleased space to be used or occupied
by others, without Landlord's prior written consent in each
instance.
9.2 Submission of Information. If Tenant requests
Landlord's consent to a specific assignment or subletting,
Tenant will submit in writing to Landlord (a) the name and
address of the proposed assignee or subtenant; (b) the business
terms of the proposed assignment or sublease; (c) reasonably
satisfactory information as to the nature and character of the
business of the proposed assignee or subtenant, and as to the
nature of its proposed use of the space; (d) banking, financial,
or other credit information reasonably sufficient to enable
Landlord to determine the financial responsibility and character
of the proposed assignee or subtenant; and (e) the proposed form
of assignment or sublease for Landlord's reasonable approval.
9.3 Payments to Landlord. If Landlord consents to a
proposed assignment or sublease, then Landlord will have the right
to require Tenant to pay to Landlord a sum equal to (a) any rent
or other consideration paid to Tenant by any proposed transferee
which (after deducting the costs of Tenant, if any, in effecting
the assignment or sublease, including reasonable alteration costs,
commissions and legal fees) is in excess of the Rent allocable to
the transferred space which is then being paid by Tenant to
Landlord pursuant to this Lease; (b) any other profit or gain
(after deducting any necessary expenses incurred) realized by
Tenant from any such sublease or assignment; and (c) Landlord's
reasonable attorneys' fees and costs incurred in connection with
negotiation, review and processing of the transfer. All such sums
payable will be payable to Landlord at the time the next payment
of Monthly Rent is due.
9.4 Prohibited Transfers. The transfer of a majority of
the issued and outstanding capital stock of any corporate tenant
or subtenant of this Lease or a majority of the total interest in
any partnership tenant or subtenant, however accomplished, and
whether in a single transaction or in a series of related or
unrelated transactions, will be deemed an assignment of this
Lease or of such sublease requiring Landlord's consent in each
instance which consent will not be unreasonably withheld or
delayed. For purposes of this Article 9, the transfer of
outstanding capital stock of any corporate tenant will not
include any sale of such stock by persons effected through
"over-the-counter-market" or through any recognized stock
exchange.
9.5 Permitted Transfer. Landlord consents to an assignment
of this Lease, or sublease of all or part of the Premises, to a
wholly-owned subsidiary of Tenant or the parent of Tenant or to
any corporation into or with which Tenant may be merged or
consolidated or to any other corporate entity established by the
current shareholder of Tenant; provided that the permitted
assignee or sublessee has substantially the same net worth as
Tenant had at the Commencement Date, provided that Tenant promptly
provides Landlord with a fully executed copy of such assignment
or sublease and that Tenant is not released from liability under
the Lease.
ARTICLE 10
RULES AND REGULATIONS
Tenant and its employees, agents, licensees and visitors
will at all times observe faithfully, and comply strictly with,
the rules and regulations set forth on Exhibit D, Landlord may
from time to time reasonably amend, delete or modify existing
rules and regulations, or adopt reasonable new rules and
regulations for the use, safety, cleanliness and care of the
Premises, the Building, and the Project, and the comfort, quiet
and convenience of occupants of the Project. Modifications or
additions to the rules and regulations will be effective upon
30 days' prior written notice to Tenant from Landlord. In the
event of any breach of any rules or regulations or any amendments
or additions to such rules and regulations, Landlord will have all
remedies which this Lease provides for default by Tenant, and
will, in addition, have any remedies available at law or in
equity, including the right to enjoin any breach of such rules
and regulations. Landlord will not be liable to Tenant for
violation of such rules and regulations by any other tenant, its
employees, agents, visitors or licensees or any other person.
In the event of any conflict between the provisions of this Lease
and the rules and regulations, the provisions of this Lease will
govern.
ARTICLE 11
COMMON AREAS
11.1 General. As used in this Lease, the term "common
areas" means, without limitation, the entryways, driveways,
walkways, terraces, loading docks, lunchroom, bathrooms, electric
forklift, conference room on ground floor, loading areas, parking
areas, landscaped acres, irrigation systems, and all other exterior
areas and facilities in the Project which are provided and
designated from time to time by Landlord for the general
nonexclusive use and convenience of Tenant with Landlord at the
Project and their respective employees, invitees, licensees or
other visitors. Landlord grants Tenant, its employees, invitees,
licensees and other visitors a nonexclusive license for the Term
to use the common areas in common with others entitled to use the
common areas, subject to the terms and conditions of this Lease.
Without advance written notice to Tenant (except with respect to
matters covered by subsection (a) below) and without any liability
to Tenant in any respect, provided Landlord will take no action
permitted under this Article 11 in such a manner so as to
materially impair or adversely affect Tenant's substantial benefit
and enjoyment of the Premises, Landlord will have the right to:
(a) Close off any of the common areas to whatever
extent required in the opinion of Landlord to prevent a dedication
of any of the common areas or the accrual of any rights by any
person or the public to the common areas;
(b) Temporarily close any of the common areas for
maintenance, alteration or improvement purposes; and
(c) Change the size, use, shape or nature of any
such common areas, expanding the existing Building to cover a
portion of the common areas or converting common areas to a
portion of the Building.
ARTICLE 12
MAINTENANCE AND REPAIRS
12.1 Landlord's Repair and Maintenance. Subject to the
provisions of paragraphs 5.1 (Operating Expenses), 7 (Use), 12.2
(Tenant's Obligations) and 17 (Damage and Destruction), and except
for damage caused by any negligent or intentional acts or omission
of Tenant, or its employees, contractors, suppliers, shippers,
customers or invitees, in which event Tenant shall repair such
damage, Landlord, at its expense, shall maintain, in good
condition and repair, the foundations, exterior walls, structural
condition of interior bearing walls, and roof of the Premises, as
well as the common areas of the Project. Landlord shall not,
however, be obligated to paint the exterior or interior surface
of exterior walls, nor shall Landlord be required to maintain,
repair or replace windows, doors, or plate glass of the Premises.
Landlord shall have no obligation to make repairs under this
paragraph 12.1 until a reasonable time after receipt of written
notice from Tenant of the need for such repairs.
12.2 Tenant's Obligations. Subject to the provisions of
paragraphs 12.1 and 17, Tenant, at Tenant's expense, shall keep
in good order, condition and repair, the Premises and shall use
the Premises so as not to cause more than ordinary wear and tear.
12.3 Limitation on Liability. Landlord will not be in
default under this Lease or be liable to Tenant or any other
person, for direct or consequential damage, or otherwise, for any
failure to the Premises of any heat, air conditioning, elevator,
cleaning, lighting, security, surges or interruptions of
electricity, or other utilities unless caused by Landlord's gross
negligence or willful misconduct. Landlord reserves the right
temporarily to discontinue such services at such times as may be
necessary by reason of accident, repairs, alterations or
improvements, strikes, lockouts, riots, acts of God, governmental
preemption in connection with a national or local emergency, any
rule, order or regulation of any governmental agency, conditions
of supply and demand which make any product unavailable,
Landlord's compliance with any mandatory governmental energy
conservation or environmental protection program, or any voluntary
governmental energy conservation program at the request of or with
consent or acquiescence of Tenant, or any other happening beyond
the control of Landlord. Landlord will not be liable to Tenant or
any other person or entity for direct or consequential damages
resulting from the admission to or exclusion from the Building or
Project of any person. In the event of invasion, mob, riot,
public excitement, strikes, lockouts, or other circumstances
rendering such action advisable in Landlord's sole opinion,
Landlord will have the right to prevent access to the Building
or Project during the continuance of the same by such means as
Landlord, in its sole discretion, may deem appropriate,
including, without limitation, locking doors and closing parking
areas and other common areas. Landlord will not be liable for
damages to person or property or for injury to, or interruption
of, business for any discontinuance permitted under this
Article 12, nor will such discontinuance in any way be construed
as an eviction of Tenant or cause an abatement of Rent or operate
to release Tenant from any of Tenant's obligations under this Lease.
12.4 Maintenance-Removal of Garbage and Waste. Tenant
shall not permit the accumulation of waste or refuse material and
shall dispose of all garbage arising from the conduct of its
business at such times and in such manner as may reasonably
prescribed by Landlord. Tenant agrees to keep all garbage retained
in air-tight receptacles, so as to avoid the escape of offensive
or noxious odors, stored only in areas screened from view and to
comply with all applicable governmental laws, regulations and
orders. Tenant at its own cost and expense shall provide any
and all safeguards so as to prevent the accumulation of such
refuse and garbage. Tenant shall pay to Landlord the cost of
removal of any of Tenant's refuse from the building. Tenant
shall have the right to contract independently for the removal
of such refuse and garbage. In the event that Tenant exercises
such right, the removal of refuse and garbage by any person other
than Landlord or Landlord's contractors shall be performed in
accordance with such regulations and requirements as, in
Landlord's reasonable judgment, are necessary for the proper
operation and maintenance of the building.
ARTICLE 13
ALTERATIONS
13.1 General.
(a) During the Term, Tenant will not make or allow
to be made any alterations, additions or improvements to or of the
Premises or any part of the Premises, or attach any fixtures or
equipment to the Premises, without first obtaining Landlord's
written consent which consent will not be unreasonably withheld.
Landlord's consent to such alterations, additions, or improvements
or Landlord's approval of the plans, specifications, and working
drawings for such alterations, additions, or improvements will
create no responsibility or liability on the part of Landlord for
the completeness, design sufficiency, or compliance with all laws,
rules, and regulations of governmental agencies or authorities
with respect to such alterations, additions, or improvements.
All such alterations, additions and improvements consented to
by Landlord, and capital improvements which are required to be
made to the Project as a result of the nature of Tenant's use of
the Premises will be performed by contractors approved by
Landlord and subject to conditions specified by Landlord (which
may include requiring the posting of a mechanic's or
materialmen's xxxx xxxx).
(b) Subject to Tenant's rights in Article 15, all
alterations, additions, fixtures and improvements, whether
temporary or permanent in character, made in or upon the Premises
either by Tenant or Landlord, will immediately become Landlord's
property and, at the end of the Term will remain on the Premises
without compensation to Tenant, unless when consenting to such
alterations, additions, fixtures, or improvements, Landlord has
advised Tenant in writing that such alterations, additions,
fixtures, or improvements must be removed at the expiration or
other termination of this Lease.
13.2 Removal. If Landlord has required Tenant to remove
any or all alterations, additions, fixtures and improvements
which are made in or upon the Premises pursuant to this
Article 13, prior to the Expiration Date, Tenant will remove
such alterations, additions, fixtures and improvements at
Tenant's sole cost and will restore the Premises to the condition
in which they were before such alterations, additions, fixtures,
improvements and additions were made, reasonable wear and tear
excepted.
ARTICLE 14
MECHANIC'S LIENS
Tenant will pay or cause to be paid all costs and charges
for work (a) done by Tenant or caused to be done by Tenant, in or
to the Premises, and (b) for all materials furnished for or in
connection with such work. Tenant will indemnify Landlord against
and hold Landlord, the Premises and the Project free, clear and
harmless of and from all mechanic's liens and claims of liens, and
all other liabilities, liens, claims and demands on account of
such work by or on behalf of Tenant, other than work performed by
Landlord pursuant to the Work Letter. If any such lien, at any
time, is filed against the Premises, or any part of the Project,
Tenant will cause such lien to be discharged of record within 10
days after the filing of such lien, except that if Tenant desires
to contest such lien, it will furnish Landlord, within such 10-day
period, security reasonably satisfactory to Landlord of at least
150% of the amount of the claim, plus estimated costs and interest
or comply with such statutory procedures as may be available to
release the lien. If a final judgment establishing the validity
or existence of a lien for any amount is entered, Tenant will pay
and satisfy the same at once. If Tenant fails to pay any charge
for which a mechanic's lien has been filed, and has not given
Landlord security as described above, or has not complied with such
statutory procedures as may be available to release this lien,
Landlord may, at its option, pay such charge and related costs and
interest, and the amount so paid, together with reasonable
attorneys' fees incurred in connection with such lien, will be
immediately due from Tenant to Landlord as Additional Rent.
Nothing contained in this Lease will be deemed the consent or
agreement of Landlord to subject Landlord's interest in the
Project to liability under any mechanic's or other lien law.
If Tenant receives written notice that a lien has been or is
about to be filed against the Premises or the Project or any
action affecting title to the Project has been commenced on
account of work done by or for or materials furnished to or
for Tenant, it will immediately give Landlord written notice
of such notice. At least 15 days prior to the commencement of
any work (including, but not limited to, any maintenance,
repairs, alterations, additions, improvements or installations)
in or to the Premises, by or for Tenant, Tenant will give
Landlord written notice of the proposed work and the names and
addresses of the persons supplying labor and materials for the
proposed work. Landlord will have the right to post notices of
non-responsibility or similar written notices on the Premises
in order to protect the Premises against any such liens.
ARTICLE 15
END OF TERM
At the end of this Lease, Tenant will promptly quit and
surrender the Premises broom-clean, in good order and repair,
ordinary wear and tear excepted. If Tenant is not then in
default, Tenant may remove from the Premises any trade fixtures,
equipment and movable furniture placed in the Premises by Tenant,
whether or not such trade fixtures or equipment are fastened to
the Building; Tenant will not remove any trade fixtures or
equipment without Landlord's prior written consent if such
fixtures or equipment are used in the operation of the Building,
or if the removal of such fixtures or equipment will result in
impairing the structural strength of the Building. Whether or
not Tenant is in default, Tenant will remove such alterations,
additions, improvements, trade fixtures, equipment and furniture
as Landlord has requested in accordance with Article 13. Tenant
will fully repair any damage occasioned by the removal of any
trade fixtures, equipment, furniture, alterations, additions and
improvements. All trade fixtures, equipment, furniture, inventory,
effects, alterations, additions and improvements on the Premises
after the end of the Term will be deemed conclusively to have been
abandoned and may be appropriated, sold, stored, destroyed or
otherwise disposed of by Landlord without written notice to Tenant
or any other person and without obligation to account for them.
Tenant will pay Landlord for all expenses incurred in connection
with the removal of such property, including, but not limited to,
the cost of repairing any damage to the Building or Premises
caused by the removal of such property. Tenant's obligation to
observe and perform this covenant will survive the expiration or
other termination of this Lease.
ARTICLE 16
EMINENT DOMAIN
If all of the Premises are taken by exercise of the power
of eminent domain (or conveyed by Landlord in lieu of such
exercise) this Lease will terminate on a date (the "termination
date") which is the earlier of the date upon which the condemning
authority takes possession of the Premises or the date on which
title to the Premises is vested in the condemning authority. If
more than 25% of the Rentable Area of the Premises is so taken,
Tenant will have the right to cancel this Lease by written notice
to Landlord given within 20 days after the termination date. If
less than 25% of the Rentable Area of the Premises is so taken,
or if the Tenant does not cancel this Lease according to the
preceding sentence, the Monthly Rent will be abated in the
proportion of the Rentable Area of the Premises so taken to the
Rentable Area of the Premises immediately before such taking,
and Tenant's Share will be appropriately recalculated. If 25% or
more of the Building or the Project is so taken, Landlord may
cancel this Lease by written notice to Tenant given within
30 days after the termination date. In the event of any such
taking, the entire award will be paid to Landlord and Tenant will
have no right or claim to any part of such award; however, Tenant
will have the right to assert a claim against the condemning
authority, so long as Landlord's award is not otherwise reduced
by such claim, for (a) Tenant's moving expenses and (b) leasehold
improvements and personal property owned by Tenant.
ARTICLE 17
DAMAGE AND DESTRUCTION
(a) If the Premises or the Building are damaged by
fire or other insured casualty, Landlord will give Tenant written
notice of the time which will be needed to repair such damage, as
determined by Landlord in its reasonable discretion, and the
election (if any) which Landlord has made according to this
Article 17. Such notice will be given before the 30th day
(the "notice date") after the fire or other insured casualty.
(b) If all or part of the Premises is damaged by
fire or other insured casualty to an extent which in Landlord's
reasonable opinion can be repaired within 120 days after the
notice date, Landlord will promptly begin to repair the damage
after the notice date and will diligently pursue the completion
of such repair. In that event this Lease will continue in full
force and effect except that Monthly Rent will be abated from the
date of the damage until the date of the completion of such
repairs (the "repair period").
(c) If all or a substantial part of the Premises is
damaged by fire or other insured casualty to an extent which may
not be repaired within 120 days after the notice date, as
reasonably determined by Landlord, then (i) Landlord may cancel
this Lease as of the date of such damage by written notice given
to Tenant on or before the notice date or (ii) Tenant may cancel
this Lease as of the date of such damage by written notice given
to Landlord within 10 days after Landlord's delivery of a written
notice that the repairs cannot be made within such 120-day period.
If neither Landlord nor Tenant so elects to cancel this Lease,
Landlord will diligently proceed to repair the Premises and Monthly
Rent will be abated during the repair period.
(d) If all or a substantial part of the Building is
damaged by fire or other insured casualty to such a material
extent that in the reasonable opinion of Landlord the Building
must be totally or partially demolished, whether or not to be
reconstructed in whole or in part, Landlord may elect to
terminate this Lease by written notice delivered to Tenant by
the Notice Date.
(e) Notwithstanding the provisions of subparagraphs
(a), (b), (c) and (d) above, if the Premises or the Building are
damaged by uninsured casualty, or if the proceeds of insurance are
insufficient to pay for the repair of any damage to the Premises
or the Building, Landlord will have the option to repair such
damage or cancel this Lease as of the date of such casualty by
written notice to Tenant on or before the notice date.
(f) If any such damage by fire or other casualty is
the result of the willful conduct or negligence or failure to act
of Tenant, its agents, contractors, employees or invitees, there
will be no abatement of Monthly Rent as otherwise provided for in
this Article 17. Tenant will have no rights to terminate this
Lease on account of any damage to the Premises, the Building, or
the Project, except as set forth in this Lease.
ARTICLE 18
SUBORDINATION
18.1 General. This Lease and Tenant's rights under this
Lease are subject and subordinate to any ground or underlying
lease, mortgage, indenture, deed of trust or other lien encumbrance
(each a "Superior Lien"), together with any renewals, extensions,
modifications, consolidations and replacements of such Superior
Lien, now or after the Date affecting or placed, charged or
enforced against the Land, the Building, or all or any portion
of the Project or any interest of Landlord in them or Landlord's
interest in this Lease and the leasehold estate created by this
Lease (except to the extent any such instrument will expressly
provide that this Lease is superior to such instrument). This
provision will be self-operative and no further instrument of
subordination will be required in order to effect it.
Notwithstanding the foregoing, Tenant will execute, acknowledge
and deliver to Landlord, within 10 days after written demand by
Landlord, such documents as may be reasonably requested by
Landlord or the holder of any Superior Lien to confirm or effect
any such subordination.
18.2 Attornment and Non-Disturbance. Tenant agrees that in
the event that any holder of a Superior Lien succeeds to
Landlord's interest in the Premises, Tenant will pay to such
holder all rents subsequently payable under this Lease. Further,
Tenant agrees that in the event of the enforcement by the holder
of a Superior Lien of the remedies provided for by law or by such
Superior Lien, Tenant will, upon request of any person or party
succeeding to the interest of Landlord as a result of such
enforcement, automatically become the Tenant of and attorn to
such successor-in-interest without change in the terms or
provisions of this Lease, provided that such successor in
interest executes a Nondisturbance Agreement agreeing to recognize
this Lease. Such successor-in-interest will not be bound by
(a) any payment of Rent for more than one month in advance, except
prepayments in the nature of security for the performance by
Tenant of its obligations under this Lease; (b) any amendment or
modification of this Lease made without the written consent of such
successor-in-interest (if such consent was required under the
terms of such Superior Lien); (c) any claim against Landlord
arising prior to the date on which such successor-in-interest
succeeded to Landlord's interest; or (d) any claim or offset of
Rent against the Landlord. Upon request by such successor-in-
interest and without cost to Landlord or such successor-in-interest,
Tenant will, within 10 days after written demand, execute,
acknowledge and deliver an instrument or instruments confirming
the attornment.
ARTICLE 19
ENTRY BY LANDLORD
Landlord, its agents, employees, and contractors may enter
the Premises at any time in response to an emergency and at
reasonable hours to:
(a) Inspect the Premises;
(b) Exhibit the Premises to prospective purchasers,
lenders or tenants;
(c) Determine whether Tenant is complying with all its
obligations in this Lease;
(d) Supply any service to be provided by Landlord to
Tenant according to this Lease;
(e) Post written notices of non-responsibility or
similar notices; or
(f) Make repairs required of Landlord under the
terms of this Lease or repairs to any adjoining space or utility
services or make repairs, alterations or improvements to any other
portion of the Building; however, all such work will be done as
promptly as reasonably possible and so as to cause as little
interference to Tenant as reasonably possible.
Tenant, by this Article 19, waives any claim against
Landlord, its agents, employees or contractors for damages for
any injury or inconvenience to or interference with Tenant's
business, any loss of occupancy or quiet enjoyment of the Premises
or any other loss occasioned by any entry in accordance with this
Article 19. Landlord will at all times have and retain a key
with which to unlock all of the doors in, on or about the
Premises (excluding Tenant's vaults, safes and similar areas
designated in writing by Tenant in advance). Landlord will have
the right to use any and all means which Landlord may deem proper
to open doors in and to the Premises in an emergency in order to
obtain entry to the Premises, provided that Landlord will promptly
repair any damages caused by any forced entry. Any entry to the
Premises by Landlord in accordance with this Article 19 will not
be construed or deemed to be a forcible or unlawful entry into or
a detainer of the Premises or an eviction, actual or constructive,
of Tenant from the Premises, or any portion of the Premises, nor
will any such entry entitle Tenant to damages or an abatement of
Monthly Rent, Additional Rent, or other charges which this Lease
requires Tenant to pay.
ARTICLE 20
INDEMNIFICATION, WAIVER, AND RELEASE
Tenant hereby agrees to indemnify, defend and hold Landlord
and Landlord's agents, employees, partners, officers, directors,
affiliates, attorneys, and successors in interest (collectively,
the "Landlord Group") and Landlord hereby agrees to indemnify,
defend and hold Tenant and Tenant's agents, employees, partners,
officers, directors, affiliates, attorneys, directors, affiliates,
attorneys and successors in interest (collectively, the "Tenant
Group") harmless from and against (a) any and all claims, demands,
suits, fines, losses, expenses and liabilities (collectively, a
"Claims") for or relating to injury or loss of life to persons or
damage to or loss of property or other damages of any kind arising
from the other party's use of the Building or the Premises, or from
the conduct of the indemnifying party's business, or from any work
done, permitted or suffered by the indemnifying party in or about
the Premises or elsewhere, or from any negligence or intentional
conduct of the indemnifying party or indemnifying party's agents,
employees, contractors, licensees, invitees, representatives or
successors in interest; (b) any and all Claims arising from any
breach or default in the performance of any obligation on
indemnifying party's part to be performed under the terms of
this Lease; and (c) all reasonable out of pocket costs,
attorneys' and other professional fees, expenses and liabilities
incurred by any member of the indemnified party and paid to
unaffiliated third parties in or in connection with any such
Claim. If any action or proceeding is brought against the
indemnified party by reason of any such Claim, the indemnifying
party, upon notice from the indemnified party, shall defend such
action or proceeding at its cost and expense by counsel approved
by the other party, such approval not to be unreasonably
withheld. Both Landlord's and Tenant's obligations under this
Article 20 shall survive the expiration or termination of this
Lease as to any matters arising prior to such expiration or
termination or prior to Tenant's vacation of the Premises.
ARTICLE 21
SECURITY DEPOSIT
This Article is Intentionally Omitted.
ARTICLE 22
QUIET ENJOYMENT
Landlord covenants and agrees with Tenant that so long as
Tenant pays the Rent, and observes and performs all the terms,
covenants and conditions of this Lease on Tenant's part to be
observed and performed, Tenant may peaceably and quietly enjoy
the Premises subject, nevertheless, to the terms and conditions
of this Lease and Tenant's possession will not be disturbed by
anyone claiming by, through or under Landlord.
ARTICLE 23
EFFECT OF SALE
A sale, conveyance or assignment of Landlord's interest in the
Building or the Project will operate to release Landlord from
liability from and after the effective date of such sale,
conveyance or assignment upon all of the covenants, terms and
conditions of this Lease, express or implied, except those
liabilities which arose prior to such effective date, and, after
the effective date of such sale, conveyance or assignment, Tenant
will look solely to Landlord's successor-in-interest in and to
this Lease. This Lease will not be affected by any such sale,
conveyance or assignment, and Tenant will attorn to Landlord's
successor-in-interest to this Lease, so long as such
successor-in-interest assumes Landlord's obligations under the
Lease from and after such effective date.
ARTICLE 24
DEFAULT
24.1 Events of Default. The following events are referred
to, collectively, as "Events of Default" or, individually, as an
"Event of Default":
(a) Tenant defaults in the due and punctual payment
of Rent, and such default continues for five (5) working days after
written notice from Landlord; however, Tenant will not be entitled
to more than two (2) written notice for monetary defaults during
any twelve (12) -month period, and if after such written notice
any Rent is not paid when due during the twelve (12) -month period
following the first notice when due, an Event of Default will be
considered to have occurred without the requirement for a written
notice to be given to Tenant;
(b) Tenant abandons the Premises;
(c) This Lease or the Premises or any part of the
Premises are taken upon execution or by other process of law
directed against Tenant, or are taken upon or subject to any
attachment by any creditor of Tenant or claimant against Tenant,
and said attachment is not discharged or disposed of within
30 days after its levy;
(d) Tenant files a petition in bankruptcy or
insolvency or for reorganization or arrangement under the
bankruptcy laws of the United States or under any insolvency act
of any state, or admits the material allegations of any such
petition by answer or otherwise, or is dissolved or makes an
assignment for the benefit of creditors;
(e) Involuntary proceedings under any such bankruptcy
law or insolvency act or for the dissolution of Tenant are instituted
against Tenant, or a receiver or trustee is appointed for all or
substantially all of the property of Tenant, and such proceeding
is not dismissed or such receivership or trusteeship vacated
within 60 days after such institution or appointment; or
(f) Tenant breaches any of the other agreements,
terms, covenants or conditions which this Lease requires Tenant
to perform, and such breach continues for a period of thirty (30)
days after written notice from Landlord to Tenant or, if such
breach cannot be cured reasonably within such thirty (30) -day
period, if Tenant fails to diligently commence to cure such breach
within thirty (30) days after written notice from Landlord and to
complete such cure within an reasonable time thereafter.
24.2 Landlord's Remedies. If any one or more Events of
Default set forth in Section 24.1 occurs then Landlord has the
right, at its election:
(a) To give Tenant written notice of Landlord's
intention to terminate this Lease on the earliest date permitted
by law or on any later date specified in such notice, in which
case Tenant's right to possession of the Premises will cease and
this Lease will be terminated, except as to Tenant's liability,
as if the expiration of the term fixed in such notice were the
end of the Term;
(b) Without further demand or notice to cure any
Event of Default and to charge Tenant for the cost of effecting
such cure, including, without limitation, reasonable attorneys'
fees and interest on the amount so advanced at the Prime Rate,
provided that Landlord will have no obligation to cure any such
Event of Default of Tenant.
Should Landlord take possession pursuant to legal proceedings or
pursuant to any notice provided by law, Landlord may, from time
to time, without terminating this Lease, re-let the Premises or
any part of the Premises in Landlord's or Tenant's name, but for
the account of Tenant, for such term or terms (which may be
greater or less than the period which would otherwise have
constituted the balance of the Term) and on such conditions and
upon such other terms (which may include concessions of free rent
and alteration and repair of the Premises) as Landlord, in its
reasonable discretion, may determine and Landlord may collect and
receive the rent. Landlord will in no way be responsible or
liable for any failure to re-let the Premises, or any part of the
Premises, or for any failure to collect any rent due upon such
re-letting. No such reentry or taking possession of the Premises
by Landlord will be construed as an election on Landlord's part
to terminate this Lease unless a written notice of such intention
is given to Tenant. No written notice from Landlord under this
Section or under a forcible or unlawful entry and detainer statute
or similar law will constitute an election by Landlord to
terminate this Lease unless such notice specifically so states.
Landlord reserves the right following any such reentry or
re-letting to exercise its right to terminate this Lease by
giving Tenant such written notice, in which event this Lease
will terminate as specified in such notice.
24.3 Certain Damages. In the event that Landlord does not
elect to terminate this Lease, Tenant will pay to Landlord: (
a) Monthly Rent and other sums as provided in this Lease, which
would be payable under this Lease if such repossession had not
occurred, less (b) the net proceeds, if any, of any re-letting
of the Premises after deducting all of Landlord's reasonable
expenses in connection with such re-letting, including, without
limitation, all repossession costs, brokerage commissions,
attorneys' fees, expenses of employees, alteration and repair
costs and expenses of preparation for such re-letting. If, in
connection with any re-letting, the new lease term extends beyond
the existing Term, or the premises covered by such new lease
include other premises not part of the Premises, a fair
apportionment of the rent received from such re-letting as
provided in this Section will be made in determining the net
proceeds from such re-letting, and any rent concessions will be
equally apportioned over the term of the new lease. Tenant will
pay such rent and other sums to Landlord monthly on the day on
which the Monthly Rent would have been payable under this Lease
if possession had not been retaken and Landlord will be entitled
to receive such rent and other sums from Tenant on each such day.
24.4 Continuing Liability After Termination. If this Lease
is terminated on account of the occurrence of an Event of Default,
Tenant will remain liable to Landlord for damages in an amount
equal to Monthly Rent and other amounts which would have been
owing by Tenant for the balance of the Term, had this Lease not
been terminated, less the net proceeds, if any, of any
re-letting of the Premises by Landlord subsequent to such
termination, after deducting all of Landlord's expenses in
connection with such re-letting, including, without limitation,
the expenses enumerated in Section 24.3. Landlord will be
entitled to collect such damages from Tenant monthly on the day
on which Monthly Rent and other amounts would have been payable
under this Lease if this Lease had not been terminated, and
Landlord will be entitled to receive such Monthly Rent and other
amounts from Tenant on each such day. Alternatively, at the
option of Landlord, in the event this Lease is so terminated,
Landlord will be entitled to recover against Tenant as damages
for loss of the bargain and not as a penalty:
(a) The worth at the time of award of the unpaid
Rent which had been earned at the time of termination;
(b) The worth at the time of award of the amount by
which the unpaid Rent which would have been earned after
termination until the time of award exceeds the amount of such
rental loss that Tenant proves could have been reasonably avoided;
(c) The worth at the time of award of the amount by
which the unpaid Rent for the balance of the Term of this Lease
(had the same not been so terminated by Landlord) after the time
of award exceeds the amount of such rental loss that Tenant proves
could be reasonably avoided;
(d) Any other amount necessary to compensate Landlord
for all the detriment proximately caused by Tenant's failure to
perform its obligations under this Lease or which in the ordinary
course of things would be likely to result therefrom.
The "worth at the time of award" of the amounts referred to
in clauses (a) and (b) above is computed by adding interest at
the Prime Rate on the date on which this Lease is terminated from
the date of termination until the time of the award. The worth at
the time of award of the amount referred to in clause (c) above is
computed by discounting such amount at the discount rate of the
Federal Reserve Bank of Kansas City, Missouri, at the time of
award plus 1%.
24.5 Cumulative Remedies. Any suit or suits for the
recovery of the amounts and damages set forth in Sections 24.3
and 24.4 may be brought by Landlord, from time to time, at
Landlord's election, and nothing in this Lease will be deemed
to require Landlord to await the date upon which this Lease or
the Term would have expired had there occurred no Event of Default.
Each right and remedy provided for in this Lease is cumulative and
is in addition to every other right or remedy provided for in this
Lease or now or after the Date existing at law or in equity or by
statute or otherwise, and the exercise or beginning of the exercise
by Landlord of any one or more of the rights or remedies provided
for in this Lease or now or after the Date existing at law or in
equity or by statute or otherwise will not preclude the simultaneous
or later exercise by Landlord of any or all other rights or remedies
provided for in this Lease or now or after the Date existing at law
or in equity or by statute or otherwise. All costs incurred by
Landlord in collecting any amounts and damages owing by Tenant
pursuant to the provisions of this Lease or to enforce any
provision of this Lease, including reasonable attorneys' fees from
the date any such matter is turned over to an attorney, whether or
not one or more actions are commenced by Landlord, will also be
recoverable by Landlord from Tenant.
ARTICLE 25
PARKING
Tenant shall be entitled to two (2) vehicle parking spaces,
unreserved and unassigned in the garage area designated by Landlord
for parking. Tenant shall not use more parking spaces than said
number, and such parking spaces shall be used only for parking by
vehicles no larger than full size passenger automobiles or pick-up
trucks. Tenant shall not permit or allow any vehicles that belong
to or are controlled by Tenant, or Tenant's employees, suppliers,
shippers, customers or invitees to be loaded, unloaded or parked
in areas other than those designated by Landlord for such
activities. If Tenant permits or allows any of the prohibited
activities described herein, then Landlord shall have the right,
without notice, in addition to all other rights and remedies it
may have under this Lease or at law, to remove or tow away any
vehicle involved and charge the cost to Tenant, which cost shall
be immediately payable to Landlord.
ARTICLE 26
MISCELLANEOUS
26.1 Signs. Tenant shall have the right to install such
signs as permitted by and which conform with all applicable
governmental requirements and consistent with Landlord's signs.
All costs of installing the signs and securing permits for such
signs shall be borne by the Tenant.
26.2 No Offer. This Lease is submitted to Tenant on the
understanding that it will not be considered an offer and will
not bind Landlord in any way until Tenant has duly executed and
delivered duplicate originals to Landlord and Landlord has
executed and delivered one of such originals to Tenant.
26.3 Joint and Several Liability. If Tenant is composed of
more than one signatory to this Lease, each signatory will be
jointly and severally liable with each other signatory for payment
and performance according to this Lease. The act of, written
notice to, written notice from, refund to, or signature of, any
signatory to this Lease (including without limitation modifications
of this Lease made by fewer than all such signatories) will bind
every other signatory as though every other signatory had so acted,
or received or given the written notice or refund, or signed.
26.4 Construction Against Drafting Party. Landlord and
Tenant acknowledge that each of them and their counsel have had
an opportunity to review this Lease and that this Lease will not
be construed against Landlord merely because Landlord has
prepared it.
26.5 Time of the Essence. Time is of the essence of each
and every provision of this Lease.
26.6 No Recordation. Tenant's recordation of this Lease
or any memorandum or short form of it will be void and a default
under this Lease.
26.7 No Waiver. The waiver by Landlord of any agreement,
condition or provision contained in this Lease will not be deemed
to be a waiver of any subsequent breach of the same or any other
agreement, condition or provision contained in this Lease, nor
will any custom or practice which may grow up between the parties
in the administration of the terms of this Lease be construed to
waive or to lessen the right of Landlord to insist upon the
performance by Tenant in strict accordance with the terms of this
Lease. The subsequent acceptance of Rent by Landlord will not be
deemed to be a waiver of any preceding breach by Tenant of any
agreement, condition or provision of this Lease, other than the
failure of Tenant to pay the particular Rent so accepted,
regardless of Landlord's knowledge of such preceding breach at
the time of acceptance of such Rent.
26.8 Limitation on Recourse. Tenant specifically agrees to
look solely to Landlord's interest in the Project for the recovery
of any judgments from Landlord. It is agreed that Landlord (and
its shareholders, venturers, and partners, and their shareholders,
venturers and partners and all of their officers, directors and
employees) will not be personally liable for any such judgments.
The provisions contained in the preceding sentences are not
intended to, and will not, limit any right that Tenant might
otherwise have to obtain injunctive relief against Landlord or
relief in any suit or action in connection with enforcement or
collection of amounts which may become owing or payable under or
on account of insurance maintained by Landlord.
26.9 Estoppel Certificates. At any time and from time to
time but within ten (10) days after prior written request by
Landlord, Tenant will execute, acknowledge and deliver to
Landlord, promptly upon request, a certificate certifying
(a) that this Lease is unmodified and in full force and effect,
or if there have been modifications, that this Lease is in full
force and effect, as modified, and stating the date and nature
of each modification; (b) the date, if any, to which Rent and
other sums payable under this Lease have been paid; (c) that no
written notice of any default has been delivered to Landlord
which default has not been cured, except as to defaults specified
in said certificate; (d) there is no Event of Default under this
Lease or an event which, with notice or the passage of time, or
both, would result in an Event of Default under this Lease, except
for defaults specified in said certificate; and (e) such other
matters as may be reasonably requested by Landlord. Any such
certificate may be relied upon by any prospective purchaser or
existing or prospective mortgagee or beneficiary under any deed
of trust of the Building or any part of the Project. Tenant's
failure to deliver such a certificate within such time will be
conclusive evidence of the matters set forth in it.
26.10 Waiver of Jury Trial. Landlord and Tenant by this
Section 26.10 waive trial by jury in any action, proceeding or
counterclaim brought by either of the parties to this Lease against
the other on any matters whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant,
Tenant's use or occupancy of the Premises, or any other claims
(except claims for personal injury or property damage), and any
emergency statutory or any other statutory remedy.
26.11 No Merger. The voluntary or other surrender of this
Lease by Tenant or the cancellation of this Lease by mutual
agreement of Tenant and Landlord or the termination of this Lease
on account of Tenant's default will not work a merger, and will,
at Landlord's option, (a) terminate all or any subleases and
subtenancies or (b) operate as an assignment to Landlord of all
or any subleases or subtenancies. Landlord's option under this
Section 26.11 will be exercised by written notice to Tenant and
all known sublessees or subtenants in the Premises or any part of
the Premises.
26.12 Holding Over. Tenant will have no right to remain
in possession of all or any part of the Premises after the
expiration of the Term. If Tenant remains in possession of all
or any part of the Premises after the expiration of the Term, with
the express or implied consent of Landlord: (a) such tenancy will
be deemed to be a periodic tenancy from month-month only; (b) such
tenancy will not constitute a renewal or extension of this Lease
for any further terms; and (c) such tenancy may be terminated by
Landlord upon the earlier of thirty (30) days' prior written notice
or the earliest date permitted by law. In such event, Monthly Rent
will be increased to an amount equal to 150% of the Monthly Rent
payable during the last month of the Term, and any other sums due
under this Lease will be payable in the amount and at the times
specified in this Lease. Such month-to-month tenancy will be
subject to every other term, condition, and covenant contained in
this Lease.
26.13 Notices. Any notice, request, demand, consent,
approval or other communication required or permitted under this
Lease must be in writing and will be deemed to have been given
three (3) days after being deposited in any depository regularly
maintained by the United States Postal Service, postage prepaid,
certified mail, return receipt requested, or when personally
delivered, sent by facsimile with receipt acknowledged, deposited
with any nationally recognized overnight carrier which routinely
issues receipts, addressed to the party for whom it is intended
at its address set forth in Section 1.1. Either Landlord or Tenant
may add additional addresses or change its address for purposes
of receipt of any such communication by giving ten (10) days'
prior written notice of such change to the other party in the
manner prescribed in this Section 26.13.
26.14 Severability. If any provision of this Lease proves
to be illegal, invalid or unenforceable, the remainder of this
Lease will not be affected by such finding, and in lieu of each
provision of this Lease that is illegal, invalid or unenforceable,
a provision will be added as a part of this Lease as similar in
terms to such illegal, invalid or unenforceable provision as may
be possible and be legal, valid and enforceable.
26.15 Written Amendment Required. No amendment, alteration,
modification of or addition to the Lease will be valid or binding
unless expressed in writing and signed by Landlord and Tenant.
Tenant agrees to make any modifications of the terms and provisions
of this Lease required or requested by any lending institution
providing financing for the Building, or Project, as the case may
be, provided that no such modifications will materially adversely
affect Tenant's rights and obligations under this Lease.
26.16 Entire Agreement. This Lease, the Exhibits and
Addenda, if any, contain the entire agreement between Landlord and
Tenant. No promises or representations, except as contained in
this Lease, have been made to Tenant respecting the condition or
the manner of operating the Premises, the Building, or the Project.
26.17 Captions. The captions of the various Articles and
Sections of this Lease are for convenience only and do not
necessarily define, limit, describe or construe the contents of
such Articles or Sections.
26.18 Notice of Landlord's Default. In the event of any
alleged default in the obligation of Landlord under this Lease,
Tenant will deliver to Landlord written notice listing the reasons
for Landlord's default and Landlord will have thirty (30) days
following receipt of such notice to cure such alleged default or,
in the event the alleged default cannot reasonably be cured within
a thirty (30) -day period, to commence action and proceed
diligently to cure such alleged default. A copy of such notice
to Landlord will be sent to any holder of a mortgage or other
encumbrance on the Building or Project of which Tenant has been
notified in writing, and any such holder will also have the same
time periods to cure such alleged default.
26.19 Authority. Tenant and the party executing this Lease
on behalf of Tenant represents to Landlord that such party is
authorized to do so by requisite action of the board of directors,
or partners, as the case may be, and agree upon request to deliver
to Landlord a resolution or similar document to that effect.
26.20 Brokers. Landlord and Tenant respectively represent
and warrant to each other that neither of them has consulted or
negotiated with any broker or finder with regard to the Premises.
Each of them will indemnify the other against and hold the other
harmless from any claims for fees or commissions from anyone with
whom either of them has consulted or negotiated with regard to the
Premises.
26.21 Governing Law. This Lease will be governed by and
construed pursuant to the laws of the State of Colorado.
26.22 Late Payments. Any Rent which is not paid when due
will accrue interest at a late rate charge of the Prime Rate plus
5% per annum (but in no event in an amount in excess of the maximum
rate allowed by applicable law) from the date on which it was due
until the date on which it is paid in full with accrued interest.
26.23 No Easements for Air or Light. Any diminution or
shutting off of light, air or view by any structure which may be
erected on lands adjacent to the Building will in no way affect
this Lease or impose any liability on Landlord.
26.24 Landlord's Fees. Whenever Tenant requests Landlord
to take any action or give any consent required or permitted under
this Lease, Tenant will reimburse Landlord for all of Landlord's
reasonable costs incurred in reviewing the proposed action or
consent, including, without limitation, reasonable attorneys',
engineers' or architects' fees, within ten (10) days after
Landlord's delivery to Tenant of a statement of such costs. Tenant
will be obligated to make such reimbursement without regard to
whether Landlord consents to any such proposed action.
26.25 Binding Effect. The covenants, conditions and
agreements contained in this Lease will bind and inure to the
benefit of Landlord and Tenant and their respective heirs,
distributees, executors, administrators, successors, and, except
as otherwise provided in this Lease, their assigns.
26.26 Option to Renew.
(a) Provided that Tenant is not in default under
the Lease, Tenant shall have the option to renew the Lease for
one (1) additional term of three (3) years from and after the
date the Primary Lease Term ends ("Renewal Term"), which option
must be exercised, if at all, by a written notice received by
Landlord no later than nine (9) months before the end of the
Primary Lease Term.
(b) The Renewal Term shall be on all of the same
terms and conditions of the Lease except that the Rent payable by
Tenant during the Renewal Term shall be equal to the Rent paid
hereunder increased by the same percentage as the increase in the
CPI-Denver from the Commencement Date to the Expiration Date.
(c) Tenant shall not have the right to renew this
Lease for any amount of space less than the entire Premises
hereunder without Landlord's written consent. This option to renew
is personal to Tenant. In the event of any assignment or sublease
of this Lease by Tenant, the option to renew shall be extinguished.
26.27 Confidentiality. Each party (the "Affected Party")
shall keep confidential and shall not use or disclose any
information that it may receive during the term of this Lease
regarding the proprietary manufacturing processes, formulas,
technology or other confidential business information of the other
party, except to the extent that such information i) was or
becomes generally available to the public for reasons other than
a breach of a duty of confidentiality by the Affected Party;
(ii) was known to the Affected Party prior to the execution of
this Lease (as evidenced by a writing in existence prior to the
date of this Lease) and was not subject to a duty of
confidentiality; or (iii) is disclosed to the Affected Party by a
third party after the date of this Lease without the breach of a
duty of confidentiality. The provisions of this Section shall
survive any termination of this Lease.
Landlord and Tenant have executed this Lease as of the day
and year first above written.
LANDLORD:
XXXXX'X LIQUID GOLD, INC.,
a Colorado corporation
By: /s/ Xxxx Xxxxxxxxx
Its: President & C.E.O.
TENANT:
KELTEC DISPENSING SYSTEMS USA, INC.
a Delaware corporation
By: /s/ Xxxxx Kelders
Its: President
