EXHIBIT 10.9
CASTLE ROCK FACILITY
LEASE
THIS LEASE is made this September 22, 1998, by and between ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
("Landlord"), and EMPAK, INC. ("Tenant").
Landlord and Tenant, intending to be legally bound, hereby covenant and
agree as follows:
Article 1.
Premises
Landlord does hereby lease, demise, and let unto Tenant, and Tenant does
hereby hire and take from Landlord, upon the terms and conditions set forth
herein (the "Lease"), certain land having as its principal address ▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, situated in ▇▇▇▇▇▇▇ County (the "Land"),
subject to all easements and rights-of-way of record, together with all
structures thereon and all appurtenances thereto (the "Improvements"), all of
which Land and Improvements are hereinafter referred to as the Premises.
Upon the Commencement Date hereof, the Land will consist of two (2)
parcels, legally described on Exhibit A attached hereto and incorporated herein
by reference. The parties intend to replat existing Parcels I and 2 into one
parcel. The parties agree that the new legal description be and the same is
hereby incorporated herein by reference, upon the said replatting, and no formal
act or amendment shall be required for said purpose. The parties agree that the
act of replatting said Parcels I and 2 shall have no effect whatsoever upon the
rights and obligations of the parties as set forth herein.
Article 2.
Term
The term of the Lease shall commence on September 22, 1998 (the
"Commencement Date") and terminate on September 30, 2005 (the "Term") unless
sooner terminated as provided herein.
Article 3.
Rent
Tenant shall pay to Landlord as monthly "Base Rent" during the Term an
amount equal to Twenty-five Thousand Dollars ($25,000.00) but in no event less
than one hundred fifty percent (150%) of the amount of the monthly debt service
due and payable by Landlord on financing secured by a first lien against the
Premises and/or and such additional financing as may be secured from time to
time to improve the Premises. Debt service shall include all costs associated
with procuring such financing. If there is no financing or the amount of the
financing is reduced to a level such that the Base Rent is materially below
market rent, then the Base Rent shall, at Landlord's option, be increased to
reflect the
then-current market rental rates. If Landlord and Tenant are unable to agree
upon said rental amount, the rental amount shall be determined by a qualified
appraiser. The costs of the appraiser's services shall be divided equally
between Landlord and Tenant.
The Base Rent shall be payable in advance, on or before the first (1st) day
of each and every month, commencing on the Commencement Date, and continuing
during, the Term. Prior to the Commencement Date, Landlord shall deliver to
tenant notice of the initial amount of Base Rent, and thereafter Landlord shall
deliver notice of any change(s) in the Base Rent payments resulting from changes
in Landlord's debt service obligations.
Article 4.
Net Lease
4.1. It is the intention and purpose of the parties hereto that the
Lease shall be a "Net Lease" to Landlord. All costs and expenses of
whatever character or kind, general and special, ordinary and
extraordinary, foreseeable or unforeseeable, and of every kind and nature
whatsoever that may be necessary in or about the operation of the Premises,
including all hazard and liability insurance, taxes, special assessments,
utilities, maintenance, and repairs, except as otherwise expressly provided
herein, shall be paid by Tenant as "Additional Rent" hereunder.
4.2. Except as otherwise expressly provided herein, Tenant covenants
and agrees that if at any time it fails to pay any amount required by the
Lease, or to obtain, pay for, maintain, or deliver any of the insurance
policies herein provided for, or fails to make any other payment or perform
any other act required to be made or performed by the Tenant, then
Landlord, without notice to or demand upon Tenant, without waiving or
releasing Tenant from any obligation of Tenant contained in this Lease, and
without any obligation to do so, may effect any such insurance coverage and
pay premiums therefor and may make any other payment or perform any other
act on the part of Tenant to be made and performed as provided in this
Lease, in such manner and to such extent as Landlord may deem desirable. In
exercising such right to pay necessary and incidental costs and expenses,
all sums so paid by Landlord and all necessary and incidental costs and
expenses in connection with performance of any such act by Landlord,
together with interest thereon at a rate of eight percent (8%) per annum
from the date of making of such expenditure by Landlord, shall be payable
to Landlord as Additional Rent, and except as otherwise provided for in
this Lease, shall be payable on demand, or at the option of Landlord, may
be added to any monthly rental then due or thereafter becoming due under
the Lease. Tenant covenants to pay any such sum or sums with interest as
aforesaid and Landlord shall have (in addition to any right or remedy of
Landlord) the same rights and remedies in the event of nonpayment by Tenant
as in the case of default by Tenant in payment of rent.
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Article 5.
Taxes and Assesments
5.1 Tenant shall pay, as Additional Rent hereunder, before any fine,
penalty, interest, or costs may be added thereto for the nonpayment
thereof, all real estate taxes and installments of special assessments
payable during the Term of this Lease which shall during the Term be laid,
assessed, levied, or imposed upon, or shall become payable as a lien upon
the premises or any part thereof ("Impositions").
5.2 Tenant shall have the right to contest or appeal any Imposition in
Tenant's or Landlord's name, at Tenant's sole cost and expense. If
nonpayment of the Imposition creates a lien upon the Premises, Landlord
may, at his or its option, request Tenant to deposit with it an amount
equal to one hundred twenty-five percent (125%) of the contested and unpaid
Imposition. Such amount shall be returned to Tenant upon the successful
appeal of the Imposition or upon payment of said Imposition. Tenant shall
give Landlord written notice of Tenant's intention to contest or appeal any
Imposition at least twenty (20) days prior to the delinquency thereof.
Tenant shall hold Landlord harmless against all loss, cost, expense,
attorneys' fees, or damages resulting from such contest or appeal.
5.3 Tenant shall pay directly to the appropriate governmental
authorities, as Additional Rent hereunder, before any fine, penalty,
interest, or costs may be added thereto for the nonpayment thereof, any tax
or excise imposed or assessed on rent, on any leasehold interest, on any
right of occupancy, on any investment of Tenant in the Premises, on any
personal property of any kind owned, installed, or used by Tenant,
including Tenant's leasehold improvements, on any privilege tax, sales tax,
gross proceeds tax, etc., however described, by any federal, state, county
or municipal governmental authority or any subdivision thereof or other
governmental authority. Tenant shall not be required to pay any federal or
state or local income tax for which Landlord may become liable during the
Initial Term or any Option Term of the Lease.
Article 6.
Utilities
Tenant shall directly pay or cause to be paid, as Additional Rent
hereunder, all charges for sewer and water services, gas, electricity, light,
heat, air conditioning, power, telephone, or other services or utility used,
rendered, or supplied upon or in connection with the Premises (the "Utilities")
during the Term hereof, Tenant shall contract for the Utilities in Tenant's own
name and shall hold Landlord harmless from any liability or expense for any such
charge. Upon Landlord's request, Tenant shall furnish to Landlord paid
statements, invoices, or cancelled checks evidencing the payment of all
obligations undertaken by Tenant hereunder.
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Article 7.
Repairs, Maintenance and Alterations
7.1 Tenant shall, during the Term of this Lease and at Tenant's
expense, keep the Premises and appurtenances and every part thereof in good
order, condition, and repair, including, without limitation, the sidewalks,
entrances, passages, courts, vestibules, stairways, corridors, halls,
elevators, air conditioning equipment, heating equipment, water system,
toilet facilities, and all other machinery and equipment in the
Improvements. Except as herein provided, Tenant shall make all repairs to
the exterior of the Improvements, shall make all structural repairs, and
shall keep and maintain all landscaped areas in a neat, orderly, and trim
condition at its expense. If Tenant does not keep and maintain the Premises
as herein provided, Landlord may, but need not, make such repairs and
replacements, and Tenant shall pay Landlord, as Additional Rent, the cost
thereof forthwith upon being billed for the same. All damage or injury to
the Premises and to its fixtures, appurtenances, and equipment caused by
Tenant moving property in or out of the Premises or by installation,
removal of furniture, fixtures, equipment, or other property by Tenant, its
agents, contractors, servants, or employees, or resulting from any other
cause of any other kind or nature whatsoever due to carelessness, omission,
neglect, improper conduct, or other causes of Tenant, its servants,
employees, agents, visitors, or licensees, shall be repaired, restored, or
replaced promptly by Tenant at its sole cost and expense to the
satisfaction of Landlord. If Tenant fails to make such repairs,
restorations, or replacements, the same may be made by Landlord and the
same shall be at the expense of Tenant and collectible as Additional Rent
or otherwise, and shall be paid by Tenant to Landlord within five (5) days
after rendition of a ▇▇▇▇ or statement therefor.
7.2 Except as otherwise provided herein, no improvements, alterations,
or replacements shall be made to the Premises or any portion thereof
without the prior written consent of Landlord.
7.3 Tenant shall not suffer or permit any statements of mechanic's
liens to be filed against the Premises or any part thereof by reason of
work, labor, services, or materials supplied or claimed to have been
supplied to Tenant or anyone holding the Premises or any part thereof
through or under Tenant. If any such statement of mechanic's lien shall at
any time be filed against the Premises, Tenant shall cause the same to be
discharged of record within thirty (30) days after the date of actual
notice to Tenant of filing the same. If Tenant shall fail to discharge such
mechanic's lien within such period or fail to deposit an amount equal to
one hundred twenty-five percent (125%) of the amount claimed with the court
within such period, then in addition to any other right or remedy of
Landlord, Landlord may, but shall not be obligated to, discharge the same
either by paying the amount claimed to be due or by procuring the discharge
of such lien by deposit in court or by giving security or in such other
manner as is, or may be, prescribed by law. Any amount paid by Landlord for
any of the aforesaid purposes and all other reasonable expenses of
Landlord, including reasonable attorneys' fees, in or about procuring the
discharge of such lien, with all necessary disbursements in connection
therewith, with interest thereon at the rate of eight percent (8%) per
annum from the date of payment, shall be repaid by Tenant to Landlord on
demand, and if unpaid may be treated as Additional Rent. Nothing herein
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contained shall imply any consent or agreement on the part of Landlord to
subject Landlord's estate to liability under any mechanic's lien law.
Article 8.
Insurance
8.1 Tenant shall pay, as Additional Rent hereunder, and at Tenant's
sole cost and expense, keep the Premises, including all buildings,
improvements, furniture, and equipment on, in, or appurtenant thereto at
the commencement of the Term and thereafter erected thereon or therein,
including all alterations, rebuildings, replacements, changes, additions,
and improvements, fully insured for the mutual benefit of Landlord and
Tenant, as their interests may appear, as named insureds: (a) against loss
or damage by fire, and (b) against those perils included from time-to-time
in the standard form of extended coverage insurance endorsement, including
but without limiting the generality or the foregoing, windstorm, hail,
explosion, vandalism, riot and civil commotion, damage from vehicles, smoke
damage, and such other coverage as may be deemed necessary by Landlord,
provided that such additional coverage is obtainable.
8.2 All policies of insurance relating to fire and extended coverage
shall provide that the proceeds thereof shall be payable to Landlord, and
if Landlord requires, shall also be payable to the holder of any mortgage
now or hereafter becoming a lien on the fee of the Premises, or any part
thereof, as the interest of such holder appears, pursuant to a standard
mortgagee clause. All such policies of insurance shall provide that any
loss shall be payable to Landlord notwithstanding any act or omission of
Tenant which might otherwise result in a forfeiture or reduction of said
insurance.
8.3 Tenant shall also pay, as Additional Rent hereunder, and at
Tenants sole cost and expense, but for the mutual benefit of Landlord and
Tenant, as named insureds, maintain during the Term of the Lease: (a)
general public liability insurance against claims for personal injury,
death, or property damage occurring upon, in or about the Premises, and on,
in, or about the adjoining lands, streets, and passageways, such insurance
to afford protection to the limit of not less than $1,000,000.00 In respect
to injury or death to a single person, and to the limit of not less than
$2,000,000.00 in respect to any one (1) accident and to the limit of not
less than $500,000.00 in respect to any property damage, (b) steam boiler
insurance an all steam boilers, pressure boilers, or other such apparatus
as Landlord may deem necessary to be covered by such insurance and in such
amount or amounts as Landlord may from time-to-time reasonably require.
8.4 All policies of insurance shall be written in companies
satisfactory to Landlord, and shall be written in such form and shall be
distributed by such agencies as shall be reasonably acceptable to Landlord.
Such policies shall be delivered to Landlord endorsed "premium paid" by the
company or agency issuing the same or accompanied by another evidence
satisfactory to Landlord that the premiums thereon have been paid, not less
than ten (10) days prior to the expiration of any then current policy.
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8.5 Landlord agrees that such policy or policies may contain a waiver
of subrogation clause as to Tenant. Provided the aforesaid fire and
extended coverage insurance is in full force and effect and remains so,
Landlord waives, releases, and discharges Tenant from all claims or demands
whatsoever which Landlord may have or acquire in the future arising out of
damage to or destruction of the Premises by fire or extended coverage risk,
whether such claim or demand may arise because of the negligence of Tenant,
its agents, or employees or otherwise, and Landlord agrees to look only to
the insurance coverage in the event of such loss.
8.6 Tenant shall insure the contents of the Improvements owned by
Tenant, for the benefit of Tenant, against loss or damage by fire,
windstorm, or other casualty for such amount as Tenant may desire, and
Tenant agrees that such policies shall contain a waiver of subrogation
clause as to Landlord. Tenant waives, releases, and discharges Landlord
from all claims or demands whatsoever which Tenant may have or acquire by
reason of fire or extended coverage risk, whether such claim or demand may
arise because of the negligence of Landlord, its agents or employees or
otherwise, and Tenant agrees to look to insurance coverage only in the
event of such loss.
8.7 The insurance requirements otherwise set forth in this Article 8
notwithstanding, if any mortgagee of the Premises or other lender of
Landlord requires insurance coverages or limits in addition to or
inconsistent with the foregoing, Landlord shall so notify Tenant and Tenant
shall modify the insurance coverages and/or limits to conform with said
mortgagee's or lender's requirements so long as said requirements are not
materially different from the typical requirements of mortgagees and
lenders for similar properties and similar credit risks.
Article 9.
Quiet Enjoyment
Landlord represents and warrants that: (a) it is the lawful owner or the
Premises, (b) that it has the full right and power to make the Lease, (c) that
if and so long as Tenant shall not be in default hereunder, Tenant shall quietly
hold, occupy, and enjoy the Premises during all of the Term.
Article 10.
Destruction by Fire
10.1 Subject to the provisions of Article 10.4 and to the availability
of insurance proceeds, if the Improvements, or any portion thereof, are
damaged or destroyed by fire or other casualty, however or by whomever
caused, Landlord shall repair, rebuild, and restore the same with due
diligence and dispatch (subject to the approval of the holders of any
mortgages on the Property) so that the Improvements will be restored to at
least the same good order and condition as existed prior to damage or
destruction. If more than fifty percent (50%) of the Premises is damaged or
destroyed by fire or other casualty, Landlord shall have the option, in its
sole discretion, to decline to rebuild the Premises. If Landlord so
declines, this Lease shall terminate as of the date of such damage or
destruction. If
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Landlord elects to repair the Premises, and if such damage in the
reasonable opinion of the Landlord renders the entire Premises unfit for
Tenant's normal business purposes, and Tenant by reason thereof
discontinues business in the Premises, Base Rent shall be abated for a
period during which no part of the Premises is fit for such business
purposes and during which time Tenant discontinues business. If such damage
renders only part of the Premises unfit for Tenant's normal business
purposes, Base Rent shall be apportioned on a square foot of Premises area
basis and the proportion thereof applicable to each part of the Premises
upon which Tenant discontinues its business operations shall be abated for
the period during which such part is not fit for Tenant's normal business
purposes and during which Tenant discontinues such business operations.
10.2 Tenant will repair and replace all improvements and betterments
placed upon the Premises by it, and such repair and replacement shall be
made at its own expense and not at the expense of Landlord.
10.3 If Landlord and Tenant cannot mutually agree on whether the
Premises is fit for Tenant's normal business purposes, such question shall
be submitted to arbitration as provided in Article 12 hereof.
10.4 If the Premises, or any part thereof, is damaged or destroyed by
the willful or negligent conduct of Tenant or its agents, employees, or
independent contractors, Tenant shall promptly repair such damage or
replace such improvement so destroyed; provided that if such damage or
destruction is caused by negligence and is or would be covered by the
insurance required to be procured and maintained by the terms of Article 8
then, to the extent that the cost of repairing or replacing such damage or
destruction does not exceed the amounts of such insurance, Tenant shall be
relieved from such obligation to repair or replace. Base Rent and
Additional Rent shall not be abated as a result or willful conduct of
Tenant or its agents, employees, or independent contractors which result in
or cause damage or destruction.
Article 11.
Condemnation
11.1 If during the Term of The Lease the entire Premises shall be
taken as a result of the power of eminent domain, condemnation proceedings,
or other like proceedings (the "Proceedings"), the Lease and all right,
title, and interest of Tenant hereunder shall cease and come to an end on
the date of taking of possession pursuant to the Proceedings. Landlord
shall be entitled to and shall receive the total award made in the
Proceedings, Tenant hereby assigns any interest in any such award to
Landlord.
11.2 If during the Term less than the entire Premises, but fifty
percent (50%) or more of the Improvements (calculated by the number of
square feet of floor space) or fifty percent (50%) or more of the Land
shall be taken by the Proceedings, the Lease shall, upon taking of
possession pursuant to
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the Proceedings, terminate as to the portion of the Land and Improvements
so taken, and Tenant may terminate the Lease as to the remainder of the
Premises. Such termination as to the remainder of the Premises shall be
effected by a notice to Landlord in writing given not more than sixty (60)
days after the date of taking of possession pursuant to such Proceedings,
and shall specify a date not more than sixty (60) days after the giving of
such notice as the date of such termination. Upon the date specified in
such notice, the Term and all right, title, and interest of Tenant
hereunder shall cease and come to an end. If Tenant elects not to terminate
the Lease, the Lease shall continue in full force and effect, but the Base
Rent shall be reduced pro rata in accordance with the percentage of value
of the Premises so taken compared with the total value of the Premises
immediately prior to said taking. Nothing herein contained shall affect
Tenant's obligation to pay in full the Additional Rent. Landlord shall,
however, at Landlord's sole cost and expense, restore that portion of the
Premises not so taken to a complete architectural unit for the use and
occupancy of Tenant. The Lease shall continue in full force and effect, but
the Base Rent shall be reduced pro rata as aforesaid. If the parties cannot
agree on the pro rata reduction of the Base rent after said taking, or on
the allocation of any award made in the Proceedings, as above set forth,
Landlord and Tenant shall submit the question to arbitration as provided in
Article 12 hereof
Article 12.
Arbitration
In cases in which a dispute arises under the Lease, the same shall be
settled by arbitration in accordance with the then existing rules of the
American Arbitration Association, and judgment upon the award rendered
maybe entered in any court having Jurisdiction thereof. Any such
arbitration shall be had before a panel of three (3) arbitrators (unless
Landlord or Tenant agree to one (1) arbitrator) designated by the American
Arbitration Association in accordance with the rules of such association,
and the decision of the majority or such arbitrators shall be binding upon
the parties. The arbitrators designated and acting under the Lease shall
make their award in strict conformity with such rules and shall have no
power to depart from or change any of the provisions thereof. Each party to
the arbitration shall pay one-half (1/2) of the costs thereof. All
arbitration proceedings hereunder shall be conducted in Denver, Colorado,
or such other location as mutually agreed upon by Landlord and Tenant.
Article 13.
Assignment and Subletting
Tenant shall not assign or transfer any of its rights under the Lease or
sublease any part of the Premises (an "Assignment") without prior written
consent from Landlord. No such Assignment shall relieve Tenant from any of its
obligations contained in the Lease, nor shall any Assignment be effective unless
the assignee shall, at the time of such Assignment, assume in writing all the
terms, covenants, and conditions of the Lease to be performed thereafter by
Tenant and shall agree in writing to be bound thereby. Tenant agrees to pay on
behalf of Landlord any and all costs of Landlord, including
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reasonable attorneys' fees occasioned by each Assignment. Consent by Landlord to
any Assignment shall not be a waiver of Landlord's rights as to a subsequent
Assignment.
Article 14.
Defaults of Lessee
14.1 If during the Term of the Lease: (a) Tenant shall make an
assignment for the benefit of creditors; or (b) Tenant shall file a
voluntary petition under the Bankruptcy Code of the United States or any
state statute similar thereto, or Tenant be adjudged insolvent or a
bankrupt pursuant to an involuntary petition; or (c) a receiver or trustee
be appointed for the property of Tenant by reason of insolvency of Tenant;
or (d) any department of the state or federal government, or any officer
thereof duly authorized, shall take possession of the business or property
of Tenant by reason of the insolvency of the Tenant; or (e) Tenant
continues in possession without the appointment of a receiver or trustee
under Chapter 11 of the Bankruptcy Code; or (f) Tenant is the subject of
any petition or proceeding related to relief from creditors, the Lease
shall, upon the happening of any of said contingencies and at Landlord's
sole option, be terminated and the same shall expire as fully and
completely as if the day of the happening of such contingency were the date
herein specifically fixed for the expiration of the Term and Tenant will
then quit and surrender the Premises, but Tenant shall remain liable as
hereinafter provided.
14.2 If during the Term Tenant shall default in fulfilling any of the
covenants of the Lease (other than the covenants for the payment of Base
Rent or Additional Rent), Landlord may give Tenant notice of any default or
of the happening of any contingency referred to in this paragraph, and if
at the expiration of thirty (30) days after the service of such notice the
default or contingency upon which said notice was based shall continue to
exist, or in the case of a default or contingency which cannot with due
diligence be cured within a period of thirty (30) days, if Tenant fails to
proceed promptly after the service of such notice and with all due
diligence to cure the same and thereafter to prosecute the curing of such
default with all due diligence, Landlord, at its option, may terminate the
Lease, and upon such termination, Tenant will quit and surrender the
Premises to Landlord, but Tenant shall remain liable as hereinafter
provided.
14.3 If Tenant shall default in the payment of the Base Rent expressly
reserved hereunder, or any part of the same, and such default shall
continue for ten ( 10) days after notice thereof by Landlord, or such
default in the payment of any item of Additional Rent to be paid by Tenant
hereunder, or any part of the same, and such default shall continue for
thirty (30) days after notice thereof by Landlord, or if the Lease shall
expire as provided in paragraphs 14.1 or 14.2 of this Article, Landlord or
Landlord's agents and servants may immediately or at any time thereafter
re-enter the Premises and remove all persons and any or all property
therefrom, either by summary dispossession proceedings or by any suitable
action or proceedings at law or by force or otherwise and repossess and
enjoy said Premises, together with all additions, alterations, and
improvements, without re-entry and repossession working a forfeiture or
waiver of the rents to be paid and the covenants to be performed by Tenant
during the
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Term hereof. Upon the expiration of the Term of this Lease by reason of any
of the events described in paragraphs 14.1 or 14.2, or in the event of
termination of the Lease by summary dispossession proceedings or under any
provision of law now or hereafter in force by reason or based upon or
arising out of a default under or a breach of the Lease on the part of
Tenant (except; where such breach or default is determined by a court of
competent jurisdiction to be justified because of Landlord's acts or
omissions), or upon Landlord recovering possession of the Premises in the
manner or in any of the circumstances described, whether with or without
legal proceedings, by reason of or based upon or arising out of a default
under or a breach of the Lease on the part of Tenant, Landlord may, at its
option, at any time and from time-to-time, relet the Premises, or any part
thereof, for the account of Tenant or otherwise, and receive and collect
the rents therefor, applying the same first to the payment of such expenses
as Landlord may have incurred in recovering possession of the Premises,
including legal expenses and attorneys' fees, and for putting the same into
good order or condition or preparing or altering the same for the rental
and all other expenses, commissions, and charges paid, assumed, or incurred
by Landlord in reletting, the Premises and then to the fulfillment of the
covenants of Tenant hereunder. Any such reletting herein provided for may
be for the remainder or the Term of the Lease as originally granted or for
a longer or shorter period. In any such case or whether or not the
Premises, or any part thereof, is relet, Tenant shall pay to Landlord the
Base Rent and the Additional Rent required to be paid by tenant up to the
time of such termination of the Lease, as the case may be, and thereafter,
except in a case where liability of Tenant as hereinafter provided arises
by reason of any of the contingencies referred to in paragraph 14.1 hereof,
Tenant covenants and agrees, if required by Landlord, to pay to Landlord
until the end of the Term of the Lease the equivalent of the amount of all
the Base Rent and Additional Rent reserved herein less the net proceeds of
reletting, if any. Landlord shall have the election, in place and stead of
holding Tenant so liable, forthwith to recover against Tenant, as damages
for loss of the bargain and not as penalty, an aggregate sum which at the
time of such termination of the Lease for such recovery of possession of
the Premises by Landlord, as the case may be, represents the then present
worth of the excess, if any, of the aggregate of the Base Rent and
Additional Rent payable by Tenant hereunder that would have accrued over
the balance of the Term, over the aggregate rental value of the Premises
for the balance of such Term.
14.4 The specified remedies to which Landlord may resort under the
terms of the Lease are cumulative and are not intended to be exclusive of
any other remedies or means of redress to which Landlord may be lawfully
entitled in case of any breach or threatened breach by Tenant of any
provision of the Lease. The failure of Landlord to insist in any one or
more cases upon the strict performance or any of the covenants of the Lease
or to exercise any option herein contained shall not be construed as a
waiver or a relinquishment for the future of such covenant or option. A
receipt by Landlord of Base Rent or Additional Rent, including payment of
Base Rent or Additional Rent by Tenant's receiver, trustee in bankruptcy,
creditor, or assignee, with knowledge of breach of any covenant herein
(other than the payment of Base Rent or Additional Rent) shall not be
deemed a waiver of such breach, and no waiver by Landlord of any provision
of this Lease shall be deemed to have been made unless expressed in writing
and signed by Landlord. Notwithstanding any other provisions in this Lease,
Tenant shall not be deemed to have waived any rights that may be available
pursuant to
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Colorado unlawful detainer, eviction, ejectment or similar laws. In
addition to other remedies provided in this Lease, Landlord shall be
entitled to the restraint by injunction for the violation or attempted or
threatened violation of the covenants, conditions, or provisions of the
Lease.
Article 15.
Attorneys Fees
If it is necessary for Landlord to retain the services of an attorney at
law to enforce any of the terms, covenants, or provisions hereof, or to collect
any sums due hereunder, Tenant shall pay to Landlord upon demand, as Additional
Rent hereunder, the cost of such services.
Article 16.
Removal of Improvements and Fixtures
Any improvements or fixtures installed by Tenant in the Improvements or on
the Land, whether used solely in Tenant's business or whether usable in the
improvements without regard to such business or otherwise, shall become the
property of Landlord upon the termination of the Lease, except that Tenant may
remove such items that are not integral to the construction or use of the
Premises, so long as Tenant repairs any damage caused by any such removal.
Article 17.
Condition of Premises at Termination
At the termination of the Lease by lapse of time or otherwise, Tenant shall
return the Premises in as good a condition as when Tenant took possession,
ordinary wear and tear excepted and condemnation, damage, or destruction as
described in Articles 10 and 11 herein.
Article 18.
Holding Over
In the absence of any written agreement to the contrary, if Tenant should
continue to occupy the Premises following the expiration or the Term of the
Lease, Tenant shall so remain as a tenant from month to month and all provisions
of the Lease applicable to such tenancy shall remain in full force and effect.
During such tenancy, the same Base Rent and the same terms and conditions as
prevailed during the last month of the Term demised shall prevail. In any such
event, Tenant shall be liable to Landlord for damages which Landlord may incur
as a result of such holding over, including but not limited to, damages incurred
because of loss of a prospective successor tenant. If Tenant is a hold-over
tenant and if Tenant continues to occupy the Premises following the termination
of such holdover (by a proper notice as to such month-to-month tenancy), then
the foregoing provisions of this Article shall apply in the same manner as when
Tenant continued in occupancy following the expiration of the Term of the Lease.
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Article 19.
Use of Premises
The Premises shall be used only for the operation of a plastic injection
molding facility and related and ancillary uses and/or such other lawful use(s)
as agreed upon by Landlord, which agreement will not be unreasonably withheld.
Tenant shall not use or occupy the Premises or knowingly permit the Premises to
be used or occupied contrary to any statute, rule, order, ordinance,
requirement, or regulation applicable thereto or in any manner which would
violate any certificate of occupancy affecting the same, or which would cause
structural injury to the Premises or cause the value or usefulness of the
Premises or any part thereof to substantially diminish (reasonable wear and tear
excepted) or which would constitute a public or private nuisance or waste.
Tenant shall promptly upon discovery or any such use, take all necessary steps
to compel the discontinuance of such use.
Article 20.
Permits
Tenant shall maintain in force and effect all permits, licenses, and
similar authorizations to use the Premises for the aforesaid purposes required
by any governmental authority having jurisdiction over the use thereof. Tenant's
failure to maintain such permits, licenses, and similar authorizations shall not
relieve Tenant from the performance of its obligations and covenants hereunder
(except obligations and covenants as may be prohibited by law), nor from the
obligations to pay Base Rent or Additional Rent, as set forth herein. Tenant
shall, at Landlord's request, Join with Landlord in executing, acknowledging,
and delivering any and all petitions, consents, subordinations, plats, or
easement deeds that may be required for the installation of any utilities,
public improvements, roads, water lines, sewer lines, storm drainage facilities,
subdivision, rezoning, special use, platting, or other similar development of
the Premises, which do not affect Tenant's use of the Premises during the Term.
Article 21.
Compliance with Law
Tenant, at its sole expense, shall promptly comply with all laws,
ordinances, and requirements of federal, state, county, and municipal
authorities relating to Tenant's use and occupation of the Premises, and with
any lawful order or direction of any public officer relating to Tenant's use and
occupation of the Premises during the Term of the Lease. Nothing herein
contained, however, shall prohibit Tenant from appealing from or contesting the
validity or legality of such laws, ordinances, requirements, orders, or
directions and, notwithstanding the foregoing provisions of this Article, Tenant
shall not be deemed to be in default hereunder so long as Tenant diligently
prosecutes such appeal or contest.
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Article 22.
Landlord's Access to Premises
22.1 Tenant shall permit Landlord and the authorized representatives
of Landlord to enter the Premises at all times during usual business hours
for the purpose or inspecting the same and making any necessary repairs to
comply with any laws, ordinances, rules, regulations, or requirements of
any public authority or of the Board of Fire Underwriters or any similar
board. Nothing herein shall imply any duty upon the part of Landlord to do
any such work which, under any provision of the Lease, Tenant may be
required to perform, and the performance thereof by Landlord shall not
constitute a waiver of Tenant's default in failing to perform the same.
Landlord may, during the progress of any work in the Premises, reasonably
keep and store upon the Premises all necessary materials, tools, and
equipment. Landlord shall not in any event be liable for inconvenience,
annoyance, disturbance, loss of business, or other damage to Tenant by
reason of making repairs or the performance of any work in the Premises, or
on account of bringing materials, supplies, and equipment onto or through
the Premises during the course thereof, and the obligations thereof
22.2 Landlord is hereby given the right during usual business hours to
enter the Premises and to exhibit the same for the purpose of sale. During
the final six (6) months of the Term hereof Landlord shall be entitled to
display on the Premises in such manner as not to unreasonably interfere
with Tenant's business. Tenant agrees that the usual "For Sale" or "To Let"
signs may remain unmolested upon the Premises and Landlord may exhibit said
Premises to prospective tenants during such period.
Article 23.
Indemnity
Tenant shall indemnify and save harmless Landlord against and from any and
all claims by or on behalf of any person or persons, firm or firms, corporation
or corporations, arising from the conduct or management of or from any work or
thing whatsoever done in, on, or about the Premises, and will further indemnify
and save Landlord harmless against and from any and all claims arising during
the Term of the Lease from any condition of the Premises or any street, curb,
sidewalk adjoining the Premises, or of any passageways or spaces therein or
appurtenant thereto, or arising from any breach or default on the part of Tenant
in the performance of any covenant or agreement on the part of Tenant to be
performed, pursuant to the terms of the Lease, or arising from any act of
negligence of Tenant, or any of its agents, contractors, servants, employees, or
licensees, or arising from any accident, injury, or damage whatsoever caused to
any person, firm, or corporation occurring during the Term of the Lease, in or
about the Premises, or upon or under the sidewalks and the land adjacent
thereto, and from and against all costs, reasonable attorneys' fees, expenses,
and liabilities incurred in or about any such claim or action or proceeding
brought thereon; and in case any action or proceeding is brought against
Landlord by reason of any such claim, Tenant, upon notice from Landlord, shall
resist or defend such action or proceeding by counsel reasonably satisfactory to
Landlord.
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Article 24.
Estoppel Certificate
Tenant shall, at any time and from time-to-time, upon not less than twenty
(20) days' prior notice by Landlord, execute, acknowledge, and deliver to
Landlord a statement in writing certifying that the Lease is unmodified and in
full force and effect (or if there shall have been modifications that the Lease
is in full force and effect as modified and stating the modifications) and the
dates to which the Base Rent and Additional Rent have been paid in advance, if
any, and stating whether or not (to the best knowledge of Tenant) Landlord is in
default in the performance of any covenant, agreement, or condition contained in
the Lease and, if so, specifying each such default of which Tenant may have
knowledge, it being intended that any such statement delivered pursuant to this
Article shall be in a form approved by and may be relied upon by any prospective
assignee of Landlord's interest in the Lease or any mortgagee of the Premises or
any assignee of any mortgage upon the Premises.
Article 25.
Subordination
The Lease shall, at Landlord's election, be subject and subordinate to the
terms and conditions of all mortgages and deeds or trust which may now or
hereafter encumber the Premises, and to all renewals, modifications,
consolidations, replacements, and extensions of such mortgages and deeds of
trust, provided that the mortgagee or other lender executes and delivers to
Tenant a "nondisturbance agreement" stating that so long as Tenant is not in
material default, the tenancy shall not be disturbed and the terms of this Lease
shall be honored irrespective or remedial action taken against Landlord. In
confirmation of such subordination, Tenant shall promptly execute any
certificate of subordination or other such documents which Landlord or its
mortgagees or other lenders may request, which documentation shall also include
the foregoing nondisturbance provisions.
Article 26.
Signs
Upon prior written approval by Landlord of design and construction, which
approval shall not be unreasonably withheld, Tenant may erect such signs upon
the Premises as it may deem desirable, as long as said signs do not exceed in
weight the safe carrying capacity or any bearing structure or violate the laws
of the state or ordinances of the municipality in which the Premises is
situated.
Article 27.
Notices
Any notice or election herein requested or permitted to be given or served
by either party hereto upon the other, shall be deemed given or served in
accordance with the provisions of the Lease if delivered to either party hereto
and receipt is obtained therefor, or if mailed in a sealed wrapper by
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United States registered or certified mail, postage prepaid, properly addressed
to such other party at the address hereinafter specified. Unless and until
changed by notice as herein provided, notices and communications shall be
addressed as follows:
If to Landlord: ▇▇▇▇▇ ▇▇▇▇▇▇▇
EMPAK, INC.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
If to Tenant: EMPAK, INC.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Executive Officer
Each such mailed notice or communication shall be deemed to have been given
to, or served upon the party to which addressed, on the date the same is
deposited In the United States registered or certified mail, postage prepaid,
properly addressed in the manner above provided. Each such delivered notice or
communication shall be deemed to have been given to, or served upon, the party
to whom delivered, upon delivery thereof in the manner above provided. Either
party may change the address to which mailed notice is to be sent by giving to
the other party hereto not less than thirty (30) days' advance written notice
thereof. All payments of Base Rent or Additional Rent hereunder shall be made to
Landlord at the address above designated, or as may be hereafter designated.
Article 28.
Miscellaneous
28.1 Entire Agreement. The Lease contains the entire agreement between
the parties, and there are no other terms, obligations, covenants,
representations, statements, or conditions, oral or otherwise, of any kind
whatsoever. Any agreement hereafter made shall be ineffective to change,
modify, discharge, or effect an abandonment of the Lease in whole or in
part unless such agreement is in writing and signed by the party against
whom enforcement of the change, modification, discharge, or abandonment is
sought.
28.2 Release of Landlord. If Landlord sells or otherwise transfers all
of its interest in the Premises, Landlord shall, without further action by
any party, be released and discharged from any further obligation or duty
under the Lease, and no claim or demand upon Landlord shall thereafter be
made by Tenant arising out of any obligation or duty of Landlord hereunder.
Upon request by Landlord, Tenant shall execute an attornment agreement with
Landlord's transferee in form satisfactory to such transferee.
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28.3 Severability. If any term, condition, or provision of the Lease
or the application thereof to any person or circumstance shall, to any
extent, be held to be invalid or unenforceable, the remainder thereof and
the application of such terms, provisions, and conditions to persons or
circumstances other than those as to whom it shall be held invalid or
unenforceable shall not be affected thereby, and the Lease and all the
terms, provisions, and conditions hereof shall, in all other respects,
continue to be effective and to be complied with to the full extent
permitted by law.
28.4 Short Form Lease. At the request of either party hereto, a short
form lease shall be prepared in form and substance reasonably satisfactory
to each of the parties and shall be executed by each of the parties in
duplicate, such lease to be filed for record in ▇▇▇▇▇▇▇ County, Colorado.
28.5 Heading. The headings incorporated in the Lease are for
convenience in reference only and are not a part of the Lease and do not in
any way limit or add to the terms and provisions hereof
28.6 Binding Effect. All of the covenants, conditions, and agreements
herein contained shall extend to, be binding upon, and inure to the
benefit of the parties hereto and their respective heirs, successors, and
assigns.
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IN WITNESS WHEREOF, the parties have executed this Lease the day and
year first above written.
LANDLORD:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
TENANT:
Empak, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Its: President
----------------------------
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EXHIBIT A
to that certain
Lease
by and between
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Landlord
and
EMPAK, INC., Tenant
Legal Description of the Property:
Parcel 1:
▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Filing No. 1, according to the
recorded plat thereof, County of ▇▇▇▇▇▇▇, State of Colorado; and
Parcel 2:
▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Filing No. 1, according to the
recorded plat thereof, County of ▇▇▇▇▇▇▇, State of Colorado.
18