navpoint REAL ESTATE GROUP	NavPoint Real Estate Group Matt Call Ph:  720-420-7530  Fax:  720-240-0762

The printed portions of this form, except differentiated additions, have been approved by the Colorado Real Estate Commission (CBS3-8-13) (Mandatory 1-14)

THIS FORM HAS IMPORTANT LEGAL CONSEQUENCES AND THE PARTIES SHOULD CONSULT LEGAL AND TAX OR OTHER COUNSEL BEFORE SIGNING.

CONTRACT TO BUY AND SELL REAL ESTATE
(COMMERCIAL)
(☒ Property with No Residences)
(☐ Property with Residences-Residential Addendum Attached)

Date:   10/16/2015

AGREEMENT

LOT 1 BLOCK 1 BROOKSIDE BUSINESS CENTER FILING NO 5 known as No. 1585 S Perry Street, Castle Rock, CO 80104, together with the interests, easements, rights, benefits, improvements and attached fixtures appurtenant thereto, and all interest of Seller in vacated streets and alleys adjacent thereto, except as herein excluded (Property).

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The Personal Property to be conveyed at Closing must be conveyed by Seller free and clear of all taxes (except personal property taxes for the year of Closing), liens and encumbrances, except
 n/a.  Conveyance will be by bill of sale or other applicable legal instrument.

The Trade Fixtures to be conveyed at Closing will be conveyed by Seller free and clear of all taxes (except personal property taxes for the year of Closing), liens and encumbrances, except
n/a.  Conveyance will be by bill of sale or other applicable legal instrument.

2.7.  Water Rights, Well Rights, Water and Sewer Taps.

☐         2.7.1.       Deeded Water Rights.  The following legally described water rights:

n/a.  Any deeded water rights will be conveyed by a good and sufficient

n/a   deed at Closing.                      

 

 

 

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The abbreviation "MEC" (mutual execution of this Contract) means the date upon which both parties have signed this Contract.

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TRANSACTION PROVISIONS

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7.1.4.  The most recent financial documents which consist of: (1) annual and most recent balance sheet, (2) annual and most recent income and expenditures statement, (3) annual budget, (4) reserve study, and (5) notice of unpaid assessments, if any (collectively, Financial Documents).

 

 

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☐            7.3.1.    Seller to Provide Association Documents.  Seller will cause the Association Documents to be provided to Buyer, at Seller's expense, on or before Association Documents Deadline (§ 3).

 

 

 

 

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☐                           8.1.2.            Buyer Selects Title Insurance Company.  If this box is checked, Buyer will select the title insurance company to furnish the owner's title insurance policy at Buyer's expense.  On or before Record Title Deadline (§ 3), Buyer must furnish to Seller, a current commitment for owner's title insurance policy (Title Commitment), in an amount equal to the Purchase Price.

If neither box in § 8.1.1 or § 8.1.2 is checked, § 8.1.1 applies.

Note: The title insurance company may not agree to delete or insure over any or all of the standard exceptions.

 

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Buyer has the Right to Terminate under § 25.1, on or before Off-Record Title Objection Deadline (§ 3), based on any unsatisfactory effect of the Property being located within a special taxing district, in Buyer's sole subjective discretion.

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☐          9.1.1.          Improvement Location Certificate.  If the box in this § 9.1.1 is checked, ☐Seller  ☒Buyer will order or provide, and pay, on or before Closing, the cost of an Improvement Location Certificate.

 

 

DISCLOSURE, INSPECTION AND DUE DILIGENCE

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☐                  10.6.1.1.                   All contracts relating to the operation, maintenance and management of the Property;

 

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☐                10.6.1.3.                   As-built construction plans to the Property and the tenant improvements, including architectural, electrical, mechanical, and structural systems, engineering reports, and permanent Certificates of Occupancy, to the extent now available;

 

 

 

 

 

 

 

☐                10.6.1.10.                 Soils reports, Surveys and engineering reports or data pertaining to the Property (if not delivered earlier under § 8.3);

 

☐                10.6.1.11.                 Any and all existing documentation and reports regarding Phase I and II environmental reports, letters, test results, advisories, and similar documents respective to the existence or nonexistence of asbestos, PCB transformers, or other toxic hazardous or contaminated substances, and/or underground storage tanks and/or radon gas.  If no reports are in Seller's possession or known to Seller, Seller warrants that no such reports are in Seller's possession or known to Seller;

 

☐                10.6.1.12.                Any Americans with Disabilities Act reports, studies or surveys concerning the compliance of the Property with said Act;

 

☐                10.6.1.13.                All permits, licenses and other building or use authorizations issued by any governmental authority with jurisdiction over the Property and written notices of any violation of any such permits, licenses or use authorizations, if any; and

 

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10.6.2.2  Due Diligence Documents Objection.  Deliver to Seller a written description of any unsatisfactory Due Diligence Documents that Buyer requires Seller to correct.

 

10.6.3.  Due Diligence Documents Resolution.  If a Due Diligence Documents Objection is received by Seller, on or before Due Diligence Documents Objection Deadline (§ 3), and if Buyer and Seller have not agreed in writing to a settlement thereof on or before Due Diligence Documents Resolution Deadline (§ 3), this Contract will terminate on Due Diligence Documents Resolution Deadline (§ 3) unless Seller receives Buyer's written withdrawal of the Due Diligence Documents Objection before such termination, i.e., on or before expiration of Due Diligence Documents Resolution Deadline (§ 3).

 

If Buyer's Phase I Environmental Site Assessment recommends a Phase II Environmental Site Assessment, the Environmental Inspection Objection Deadline (§ 3) will be extended by 0 days (Extended Environmental Inspection objection Deadline) and if such Extended Environmental Inspection Objection Deadline extends beyond the Closing Date (§ 3), the Closing Date (§ 3) will be extended a like period of time.  In such event, ☐Seller ☒Buyer must pay the cost for such Phase II Environmental Site Assessment. SEE ADDENDUM.

Notwithstanding Buyer's right to obtain additional environmental inspections of the Property in this § 10.6.5, Buyer has the Right to Terminate under § 25.1, on or before Environmental Inspection Objection Deadline (§ 3), or if applicable the Extended Environmental Inspection Objection Deadline, based on any unsatisfactory results of Environmental Inspection, in Buyer's sole subjective discretion.

Buyer has the Right to Terminate under § 25.1, on or before ADA Evaluation Objection Deadline (§ 3), based on any unsatisfactory ADA Evaluation, in Buyer's sole subjective discretion.

 

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CLOSING PROVISIONS

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☐Water Stock/Certificates   ☐Water District    ☐Augmentation Membership
☐Small Domestic Water Company    ☐ n/a and must be paid at Closing by ☐Buyer   ☐Seller   ☐One-Half by Buyer and One-Half by Seller    ☒None.

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If Seller, after Closing, fails to deliver possession as specified, Seller will be subject to eviction and will be additionally liable to Buyer for payment of $    n/a   per day (or any part of a day notwithstanding § 18.1) from Possession Date (§ 3) and Possession Time (§ 3) until possession is delivered.

GENERAL PROVISIONS

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             21.1.2.     Liquidated Damages, Applicable.  This § 21.1.2 applies unless the box in § 21.1.1. is checked.  All Earnest Money (whether or not paid by Buyer) will be paid to Seller, and retained by Seller.  Both parties will thereafter be released from all obligations hereunder.  It is agreed that the Earnest Money specified in § 4.1 is LIQUIDATED DAMAGES, and not a penalty, which amount the parties agree is fair and reasonable and (except as provided in §§ 10.4, 22, 23 and 24), said payment of Earnest Money is SELLER'S ONLY REMEDY for Buyer's failure to perform the obligations of this Contract.  Seller expressly waives the remedies of specific performance and additional damages.

 

 

 

 

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ADDITIONAL PROVISIONS AND ATTACHMENTS

See Addendum

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Addendum

SIGNATURES

 

/s/ Joe Niebur		Date:	10/16/15
Buyer:          Niebur Golf Development, LLC, a Colorado Limited Liability Company                    By: Joe Niebur, Manager

                                                           
                       

[NOTE: If this offer is being countered or rejected, do not sign this document.  Refer to § 32]

END OF CONTRACT TO BUY AND SELL REAL ESTATE

Broker ☐ Does  ☒ Does Not acknowledge receipt of Earnest Money deposit and, while not a party to the Contract, agrees to cooperate upon request with any mediation concluded under § 23.  Broker agrees that if Brokerage Firm is the Earnest Money Holder and, except as provided in § 24, if the Earnest Money has not already been returned following receipt of a Notice to Terminate or other written notice of termination, Earnest Money Holder will release the Earnest Money as directed by the written mutual instructions.  Such release of Earnest Money will be made within five days of Earnest Money Holder's receipt of the executed written mutual instructions, provided the Earnest Money check has cleared.

Broker is working with Buyer as a ☐ Buyer's Agent ☒ Seller's Agent ☐ Transaction-Broker in this transaction.  ☐ This is a Change of Status.

Brokerage Firm's compensation or commission is to be paid by ☐ Listing Brokerage Firm ☐ Buyer  ☒ Other None.

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Brokerage Firm's Name:  NavPoint Real Estate Group

 

Broker ☐ Does ☒ Does Not acknowledge receipt of Earnest Money deposit and, while not a party to the Contract, agrees to cooperate upon request with any mediation concluded under § 23.  Broker agrees that if Brokerage Firm is the Earnest Money Holder and, except as provided in § 24, if the Earnest Money has not already been returned following receipt of a Notice to Terminate or other written notice of termination, Earnest Money Holder will release the Earnest Money as directed by the written mutual instructions.  Such release of Earnest Money will be made within five days of Earnest Money Holder's receipt of the executed written mutual instructions, provided the Earnest Money check has cleared.

Broker is working with the Seller as a ☒ Seller's Agent ☐ Buyer's Agent ☐ Transaction-Broker in this transaction.  ☐ This is a Change of Status.

Brokerage Firm's compensation or commission is to be paid by ☒ Seller ☐ Buyer ☐ Other at closing.  Brokerage Firm's Name:  NavPoint Real Estate Group

 

 

 

 

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ADDENDUM
(1585 S. Perry Street)

THIS ADDENDUM ("Addendum") is made as of October 16, 2015, and is attached to and forms a part of that certain Contract to Buy and Sell Real Estate (Commercial) of even date herewith (the "Printed Form"; together with this Addendum, hereinafter referred to as the "Contract") between VENAXIS, INC., a Colorado corporation, as Seller, and NIEBUR GOLF DEVELOPMENT, LLC, a Colorado limited liability company, as Buyer, for the purchase of Property located at 1585 S. Perry Street, Castle Rock, Colorado  80104.  In the event of any conflict between the terms and provisions of the Printed Form and those of this Addendum, the terms and provisions of this Addendum shall govern and control.  Unless otherwise defined herein, capitalized terms used in this Addendum shall have the meanings given to them in the Printed Form.

The following provisions are added to Section 30 of the Printed Form:

35.

At Closing, Buyer and Seller shall enter into a lease agreement substantially in the form attached hereto as Exhibit A ("Leaseback Agreement"), whereby Seller leases a portion of the Property (the "Leaseback Premises") from Buyer at "market rates", commencing on the Closing Date and continuing thereafter until terminated by either party upon sixty (60) days prior written notice to the other; provided, however, that in no event shall either party send to the other notice terminating the Leaseback Agreement prior to January 31, 2016.  As used in this Contract "market rates" means what a landlord under no compulsion to lease the Property and a tenant under no compulsion to lease the Property would determine as rent for the term of the Leaseback as of the Closing Date, taking into consideration the uses permitted, the quality, size, and location of the Leaseback Premises, and the rent and other incentives, allowances and commissions being offered for comparable buildings located in the same general geographic area as the Property.  Within seven (7) days after MEC, Buyer shall propose any changes desired by Buyer to the form of Leaseback Agreement attached hereto as Exhibit A, including without limitation changes to the size of the Leaseback Premises and the amount of rent due thereunder.  Buyer and Seller shall thereafter negotiate in good faith to agree upon the final form and terms of the Leaseback Agreement.  If Buyer and Seller have not agreed upon a final form of Leaseback Agreement on or before the date that is twenty-one (21) days after the date of this Contract, Buyer and Seller shall execute at Closing the Leaseback Agreement in the form attached hereto as, and containing the terms set forth in, Exhibit A.

 

36.

The following language is added to the end of Section 2.2 of the Contract:   Notwithstanding the foregoing, Buyer may assign or transfer its rights or obligations under this Contract prior to the Closing Date to an affiliate of Buyer that is owned or controlled by, or under common control with, Buyer without the prior written consent of Seller, provided that Buyer shall have provided written notice to Seller of such assignment at least five (5) days prior to Closing and such entity shall have agreed in writing to be bound by the provisions of this Contract and to perform Buyer's obligations and liabilities hereunder and under the escrow for the sale contemplated hereunder.  Any transfer, directly or indirectly, of any controlling partnership interest, membership interest or other ownership interest in Buyer shall constitute an assignment by Buyer under this Contract.  Without limitation of, and notwithstanding anything to the contrary in, the foregoing, no assignment by Buyer shall relieve Buyer of any of its obligations or liabilities pursuant to this Contract.  Except as so restricted, this Contract shall inure to the benefit of and be binding upon the heirs, personal representatives, successors and assigns of the parties.

 

 

/s/ JN    

  /s/ JM    

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37.

Section 2.5.2 of the Contract is amended to provide that the "Other Personal Property" conveyed by Seller to Buyer shall be the personal property, furniture, fixtures and equipment listed on Exhibit B attached hereto, and any other personal property left by Seller in any portion of the Building other than the Premises after the Closing, which shall be deemed abandoned and become the property of Buyer.

 

38.	The following language is added to the end of Section 8.1.3:   Buyer shall pay the cost of any endorsements other than an OEC endorsement that are requested by Buyer.

 

 

39.

The following language is added to Section 10.6 of the Contract:   Buyer's may, at Buyer's sole cost and expense, perform such environmental surveys and inspections of the Property as Buyer deems reasonably necessary, provided, however, that notwithstanding anything in this Contract to the contrary, Buyer shall not be permitted to perform a Phase II environmental audit and inspection of the Property or any other form of invasive property testing without Seller's prior written approval, which may be granted or withheld in Seller's sole discretion.  No Phase II environmental audit or inspection shall extend the Environmental Inspection Objection Deadline or any other deadline hereunder.

 

 

40.	The following language is added to the end of Section 16.4 of the Contract "Buyer agrees that all separately metered utilities to the Property will be changed from Seller's name to Buyer's name within three (3) days after Closing."

 

41.	Section 19.1 of the Contract is amended and restated in its entirety as follows:

 

19.1.

Causes of Loss, Insurance.  In the event the Property or Inclusions are damaged by fire, other perils or causes of loss prior to Closing in an amount of not more than ten percent (10%) of the total Purchase Price, Seller shall be obligated to repair the same and the Closing Date (§ 3) shall be extended to such reasonable date selected by Seller on notice to Buyer within which such repair may be accomplished.  In the event such damage is not repaired within the time provided for in any such Seller's notice, or if the damage exceeds such sum, this Contract may be terminated at the option of Buyer by delivering to Seller written notice of termination on or before the Closing Date.  Should Buyer elect to carry out this Contract despite such damage, Buyer shall be entitled to a credit at Closing for all insurance proceeds that were received by Seller (but not the Association, if any) resulting from such damage to the Property and Inclusions, plus the amount of any deductible provided for in such insurance policy.  Such credit shall not exceed the Purchase Price.  In the event Seller has not received such insurance proceeds prior to Closing, then Seller shall assign such proceeds at Closing, plus credit Buyer the amount of any deductible provided for in such insurance policy, but not to exceed the total Purchase Price.  Notwithstanding the foregoing, if the Property is damaged or destroyed by casualty prior to Closing in an amount greater than ten percent (10%) of the Purchase Price, then Seller may terminate this Agreement within ten (10) days of such casualty by written notice to the Buyer.

 

42.

Section 19.2 of the Contract is amended and restated in its entirety as follows:   19.2.  Damage, Inclusions and Services.  Should any Inclusion or service (including utilities  and communication services), system, component or fixture of the Property (collectively Service), e.g., heating or plumbing, fail or be damaged between the date of this Contract and Closing or possession, whichever shall be earlier, then Seller shall be liable for the repair or replacement of such Inclusion or Service with a unit of similar size, age and quality, or an equivalent credit, less any insurance proceeds received by Buyer covering such repair or replacement.  If the failed or damaged Inclusion or Service is not repaired or replaced on or before Closing, then, at Seller's option:  (a) the date of Closing shall be extended for such time as is necessary to complete such repair or replacement, or (b) Seller shall provide to Buyer a credit at Closing in such amount as is reasonably necessary to complete such repair or replacement; provided, however, that any such credit shall not exceed the Purchase Price.

 

 

/s/ JN    

/s/ JM    

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43.

Section 21.2 of the Contract is amended and restated in its entirety as follows:   21.2   If Seller is in Default.  In the event of default by Seller hereunder not cured within ten (10) days after written notice by Buyer to Seller specifying the nature of such default, then Buyer may either elect to treat this Contract as canceled, in which case the Earnest Money shall be returned to Buyer, together with an additional liquidated damage sum of $50,000.00, or to treat this Contract as being in full force and effect and Buyer shall have the right to specific performance.  The parties agree that, in the event Seller defaults, the amount of damages to Buyer occasioned by such default is extremely difficult to ascertain, and the liquidated damage amount set forth above will constitute an adequate and appropriate amount of liquidated damages to be paid to Buyer.  THE REMEDIES SET FORTH IN THIS § 21.2 SHALL BE THE SOLE AND EXCLUSIVE REMEDIES OF BUYER FOR A DEFAULT BY SELLER.

 

 

44.

Section 24 of the Contract (Earnest Money Dispute) is deleted and replaced with the following:   24. EARNEST MONEY DISPUTE.  Notwithstanding any termination of this Contract, Buyer and Seller agree that, in the event of any controversy regarding the Earnest Money held by Earnest Money Holder, unless mutual written instructions are received by Earnest Money Holder, the Earnest Money Holder shall not be required to take any action but may await any proceeding, or at its option and discretion, may interplead all parties and the Earnest Money into a court of competent jurisdiction and shall recover court costs and its reasonable attorney fees in doing so.  This § 24 shall survive termination of this Contract.

 

 

45.

Section 25.2 of the Contract is amended and restated in its entirety as follows:    25.2            Effect of Termination.  In the event this Contract is terminated, except as otherwise expressly set forth herein, all Earnest Money received hereunder shall be returned and the parties shall be relieved of all obligations hereunder, subject to the provisions of this Contract that expressly survive termination of the Contract by its terms, including without limitation § 10.4.  If this Contract is terminated as provided for in § 21 or is otherwise terminated prior to Closing, Buyer shall return to Seller all documents delivered by Seller to Buyer in connection with this Contract, Earnest Money Holder shall pay all of the Earnest Money to the party entitled thereto pursuant to § 21, and, if applicable, Seller shall pay to Buyer the additional liquidated damage sum set forth in § 21.2, after which neither party shall have any further obligation to the other hereunder.

 

46.

For purposes of Section 27.3 of the Contract, the notices address of the parties are:  (a) Seller, 1585 S. Perry Street, Castle Rock, Colorado  80104, Attn:  Jeff McGonegal, Email: JMcGonegal@venaxis.com ; and (b) Buyer, 1230 Tenderfoot Hill Rd., Suite #100, Colorado Springs, Colorado 80906, Email:  Joe@nieburdevelopment.com .

 

 

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47.

Disclaimers and Limitations.  THE PARTIES AGREE THAT BUYER ACCEPTS THE PROPERTY "AS IS", WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY NATURE, EXPRESS OR IMPLIED, AND BUYER HEREBY WAIVES, AND SELLER HEREBY DISCLAIMS, ALL WARRANTIES OF ANY TYPE, EXPRESS, IMPLIED OR STATUTORY, WHETHER ARISING UNDER STATE OR FEDERAL LAW INCLUDING, BUT NOT LIMITED TO, ANY OR ALL IMPLIED WARRANTIES OF MERCHANTABILITY, HABITABILITY, SUITABILITY FOR HABITATION, FITNESS OR FITNESS FOR A PARTICULAR PURPOSE.  SELLER SPECIFICALLY DISCLAIMS, AND BUYER SPECIFICALLY RELEASES SELLER FROM, ANY LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES TO ANY PERSON OR THE PROPERTY OR ANY OTHER REAL OR PERSONAL PROPERTY RESULTING FROM A DEFECT OR ANY OTHER CAUSE.  BUYER ASSUMES THE RISK OF DAMAGE OCCURRING IN THE PROPERTY AFTER CLOSING REGARDLESS OF THE CAUSE.  THE PROVISIONS OF THIS SECTION SHALL SURVIVE CLOSING.

 

48.	Buyer's Acknowledgments and Representations.

 

48.1.

Buyer acknowledges that neither Seller nor any of its agents or representatives has made any representations whatsoever to the Buyer respecting the rental or rentability of the Property, the amount or frequency of rental income which may be received therefrom, the tax consequences of purchase or holding of the Property, the possible or anticipated resale value of the Property, or any other economic benefit arising from the ownership of the Property.  Seller expressly disclaims and repudiates any representation from any source as to any possible economic benefit arising from ownership of the Property.  Buyer acknowledges that the acquisition of the Property is made for the sole account of Buyer for its own purpose, that Buyer has not received from Seller any accounting, tax, legal, architectural, engineering, property management or other advice with respect to this transaction, and the Buyer is relying on its own professional, tax, business, legal and other advisors in making the decision to purchase the Property.  Buyer is familiar with the risks attending the purchase of real estate, and advises Seller that Buyer is assuming such risks with respect to purchase of the Property.

 

48.2.

Except with respect to any claims arising out of any breach of covenants, representations or warranties expressly set forth in this Contract, Buyer, for itself and its agents, affiliates, successors and assigns, hereby releases and forever discharges Seller, its agents, affiliates, successors and assigns from any and all rights, claims and demands at law or in equity, whether known or unknown at the time of this agreement, which Buyer has or may have in the future, arising out of the physical, environmental, economic or legal condition of the Property, including, without limitation, any claim for indemnification or contribution arising under the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. Section 9601, et. seq.) or any similar federal, state or local statute, rule or ordinance relating to liability of property owners for environmental matters.

 

48.3.

BY PROCEEDING WITH CLOSING, BUYER SHALL BE DEEMED FOR ALL PURPOSES TO HAVE REMADE AS OF THE CLOSING DATE, ALL OF THE STATEMENTS SET FORTH IN THIS SECTION 30(N).  THE PROVISIONS OF THIS SECTION 30(N) SHALL SURVIVE CLOSING.

 

 

/s/ JN    

/s/ JM    

 

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49.

Brokers.  Each party represents to the other that no real estate broker other than the Seller's listing broker identified on the signature page(s) of this Contract (Seller's Broker) has any claim for compensation or expenses as a result of this transaction.  Each party shall indemnify the other against any claims for commissions or other compensation by any broker or finder with whom the indemnifying party has dealt.  Seller shall compensate Seller's Broker for services rendered in this transaction pursuant to a separate agreement between them.

 

50.

Confidentiality.  Buyer agrees, prior to Closing, to keep the negotiations leading up to, as well as the terms of this Contract confidential and not to disclose any terms of this Contract, the Due Diligence Documents or any information contained therein, or any information obtained by Buyer in connection herewith, except as required by law or as necessary to obtain enforcement of this Contract.  Seller shall likewise keep the terms and contains of this Contract confidential until after the Inspection Resolution Deadline.  The obligations of this Section 30(P) do not apply to:  (i) any disclosures made by Seller, a public traded corporation, that are required by the United States Securities and Exchange Commission (likely requiring disclosure of this Contract and its terms); and (b) disclosure made by Buyer or Seller to each of their respective representatives, officers, employees, partners, investors, members, lenders, consultants and other agents who need to know such information for the purpose of completing the transaction contemplated by this Contract, so long as such persons are informed by the disclosing party of the confidential nature of the information or documents disclosed and prior to any such disclosure such persons agree to be bound by the provisions of this Section 30(P).

 

51.	Paragraph and Section Headings.  The paragraph or section headings of this Contract are inserted only for convenience and shall not be deemed to define or limit the scope of any part of the Contract.

 

52.

Singular/Plural. Where necessary for the reasonable understanding of this Contract, the singular shall be deemed to include the plural, and use of any gender shall be deemed to include any other gender. The term "Buyer" shall include the plural as well as the singular where multiple purchasers execute this Contract. If there is more than a single purchaser under this Contract, then the obligations imposed on the Buyer hereunder shall be joint and several among all of the individual purchasers.

 

53.

Venue and Jurisdiction.  In the event of any controversy regarding any aspect of this Contract or the Property, Buyer and Seller hereby consent to the exclusive venue and jurisdiction of the Douglas County District Court, Douglas County, Colorado, and each of Buyer and Seller agrees to waive and not to assert any objection to exclusive venue and jurisdiction in such court or otherwise to assert inconvenience or any other defense to the venue and jurisdiction of such court.

 

54.

Prohibition against Recording.  Buyer acknowledges and agrees that this Contract, or any memorandum, affidavit or other document which makes reference to or gives notice of this Contract, shall not be recorded in the real property records of Douglas County, Colorado.  Buyer, upon demand, agrees to execute and deliver to Seller such documents as Seller may reasonably request to remove any cloud of title on the Property or the Project caused by Buyer.  Furthermore, Buyer hereby irrevocably appoints Seller as attorney-in-fact for Buyer to execute, on Buyer's behalf any and all documents necessary to remove any cloud on title placed upon the Property, or the Project by the Buyer in violation of this Section.

[Signatures appear on following page]

 

 

 

/s/ JN    

/s/ JM    

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EXECUTED as of the date first set forth above.

BUYER:

NIEBUR GOLF DEVELOPMENT, LLC,
a Colorado limited liability company

SELLER:

VENAXIS, INC.,
a Colorado corporation

 

 

 

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EXHIBIT A
TO ADDENDUM
Form of Lease Agreement

THIS LEASE AGREEMENT (this "Lease") is made and entered into this ____ day of ___________, 2015 (the "Effective Date"), by and between NIEBUR GOLF DEVELOPMENT, LLC, a Colorado limited liability company ("Landlord") and VENAXIS, INC., a Colorado corporation ("Tenant").

Summary of Basic Lease Terms.

A.

PROPERTY: The real property with an address of 1585 S. Perry Street, Castle Rock, Colorado 80104, and legally described as Lot 1, Bock 1, Brookside Business Center filing No. 5.

B.

BUILDING:  The building located on the Property as of the Effective Date, containing 40,060 rentable square feet of space.

C.

PREMISES:  Subject to Section 2.2 below, 22,000 rentable square feet of space located in the area of the Building generally depicted on Exhibit A attached hereto.  Tenant's Proportionate Share (as defined below) of the area labeled as "Common Area/Loading" on Exhibit A has been included in the 22,000 rentable square foot area of the Premises.

D.

TERM:  This Lease is a month to month Lease, terminable by either party upon at least sixty (60) days prior written notice to the other; provided, however, that neither party shall send notice of termination to the other prior to January 31, 2016.  The term of this Lease shall therefore be for one month, commencing on the Effective Date (the "Commencement Date") and will automatically renew for successive one month terms unless terminated by either Landlord or Tenant in accordance with this Paragraph (the "Term").  After January 31, 2016, either Landlord or Tenant may terminate this Lease by providing to the other at least sixty (60) days prior written notice of such termination, whereupon this Lease shall terminate on the date set forth in such notice (such date of termination being the expiration date of this Lease).

E.

SECURITY DEPOSIT:  [INTENTIONALLY OMITTED].

F.

BASE RENT:  $22,000.00 per month.

G.

TENANT'S PROPORTIONATE SHARE:   The fraction (expressed as a percentage) determined by dividing the number of square feet of space in the Premises by the number of square feet of space in the Building, which percentage (subject to any Remeasurement made pursuant to Section 2.2, below) is equal to 54.92%.

 

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H.

ADDRESSES FOR NOTICES AND PAYMENT OF RENT AND CHARGES:

I.

USE OF PREMISES:  General office, laboratory, and warehouse use.

J.

BROKER:  NavPoint Real Estate Group.

Grant; Premises and Common Areas.

As Is; Remeasurement of Premises.  Subject to Landlord's completion of the Landlord's Work, if any, described on Exhibit B, the Premises are being leased "AS IS," with Tenant accepting all defects, if any.  Tenant currently occupies the Premises, and Landlord makes no warranty of any kind, express or implied, with respect to the Premises.  Except for Landlord's performance of any Landlord's Work described on and in accordance with Exhibit B:  (a) Tenant's continued possession of the Premises shall be conclusive evidence as against Tenant that the Premises were in satisfactory condition when Tenant took possession; and (b) any improvements to the Premises necessary for Tenant's use or occupancy thereof shall be completed by Tenant, at Tenant's expense, in accordance with the terms of this Lease, including without limitation Section7.3, below.  Within sixty (60) days after substantial completion of Landlord's Work in accordance with Exhibit C, Tenant shall have the right to remeasure the Premises ("Remeasurement").  Upon Tenant's provision of verifiable results of Remeasurement to Landlord, if the Remeasurement results in a lesser or greater square footage for the Premises (which remeasured square footage shall also include Tenant's Proportionate share of the "Common Area/Loading" shown on Exhibit A), the Landlord and Tenant will enter into an amendment of this Lease to (i) revise the size of the Premises in Paragraph C of the Summary of Basic Lease Terms; (ii) revise the amount of Base Rent in Paragraph F of the Summary of Basic Lease Terms to be an amount equal to $12.00 per rentable square foot of the Premises per annum (i.e. a monthly Base Rent that is equal to the product of (A) $12.00, multiplied by (B) the square footage of the Premises established by the Remeasurement and Tenant's Proportionate Share of the "Common Area/Loading", and then divided by (C) 12 months); and (iii) revise the Tenant's Proportionate Share in Paragraph G of the Summary of Basic Lease Terms.  Notwithstanding the foregoing, in no event shall the Remeasurement result in a change of the size of the Premises that is more than five percent (5%) larger or smaller than the rentable square footage set forth in Paragraph C of the Summary of Basic Lease Terms.

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Common Area.  "Common Areas" shall mean those areas in or adjacent to the Building which are intended for the common or joint use and benefit of Landlord, Tenant and other tenants and occupants of the Building and their respective employees, agents, servants, customers and invitees.  The Common Areas shall include, without limitation, the area labeled as "Common Area/Loading" on Exhibit A attached hereto, to which both Tenant and any other tenant of the Building shall each be provided secure access from each of their respective Premises.  Common Areas shall at all times be available for the non-exclusive use of Landlord, Tenant and other tenants and permanent occupants of the building and their respective customers, employees and invitees, provided that the condemnation or other taking by any public authority of sale of any or all of such common Areas or damaged by fire or other casualty to such Common Areas shall not constitute a violation of this covenant.  Landlord shall manage and maintain the Common Areas situated outside of the Premises, and Tenant shall manage and maintain any Common Area situated within the Premises, in a neat, clean, operative and orderly condition and shall promptly repair any damage thereto.  Landlord shall have the right at any time during the term to change the location of entrances to the Building and change, alter, remodel, reduce or improve the Common Areas, elevators, drains, pipes, heating and air conditioning apparatus or any other part of the Building except the Premises without compensation to Tenant; provided however, that Landlord shall not in making such changes, materially impair Tenant's ability to operate its business on the Premises

Term.  The Term of this Lease shall be as set forth, and commencing and ending on the dates contained, in Paragraph D of the Summary of Basic Lease Terms.

Rent.

Base Rent.  Tenant agrees to pay to Landlord, promptly when due, without notice or demand and without deduction, counterclaim or set off for any reason whatsoever, as rent for the Premises, the Base Rent set forth in Paragraph F of the Summary of Basic Lease Terms for each and every month during the Term, prorated for any partial month.  The Base Rent shall be payable in advance on the first day of each month during the Term.  At the time of execution of this Lease, Tenant shall pay to Landlord the first month's Base Rent.

Common Area Maintenance Cost.  Commencing on the Commencement Date, Tenant agrees to pay to Landlord as additional rent, monthly or less frequently as directed by Landlord, Tenant's Proportionate Share of the Common Area Maintenance Cost (as hereinafter defined).  Such payments shall be based on Landlord's reasonable estimates, subject to adjustment from time to time on determination of the actual amount of the Common Area Maintenance Cost.  "Common Area Maintenance Cost" shall be the total of all items of cost and expense in operating, managing, equipping, protecting, policing, lighting, repairing, replacing and maintaining the Property including, but not limited to, all costs and expenses of (a) maintaining, repairing and replacing the Property, including capital repairs, maintenance and replacements (and the cost of such capital items shall be amortized over the useful life of the such item, as estimated by Landlord); (b) security, fire protection and traffic direction and control; (c) cleaning and removal of rubbish, dirt, debris, snow and ice; (d) landscaping; (e) water, drainage and sewerage; (f) insurance maintained by Landlord with respect to the Property; (g) wages and benefits of employees and other employee expenses; (h) permits and licenses; (i) supplies; (j) utility services and lighting, including the Generator; (k) acquiring, leasing, operating, maintaining, repairing and replacing machinery and equipment used in the operation of the Common Areas; and (l) reasonable, third party management fees; and shall include any other cost, expense or charge, whether or not hereinbefore mentioned, which in accordance with generally accepted accounting and management principles, would be considered as an expense of owning, managing, operating, maintaining or repairing the Common Areas.  On or before June 1 of each calendar year during the Term and within thirty (30) days after the expiration or earlier termination of this Lease, Landlord shall provide to Tenant, a statement ("CAM Statement") showing the actual Common Area Maintenance Cost paid by Landlord for the prior calendar year or relevant portion thereof. If the total of the monthly payments of Tenant's Proportionate Share of the Common Area Maintenance Cost that Tenant has made for the prior calendar year or relevant portion thereof is less than the Tenant's Proportionate Share of the actual Common Area Maintenance Cost chargeable to Tenant for such prior calendar year or relevant portion thereof, then Tenant shall pay the difference in a lump sum within thirty (30) days after receipt of such CAM Statement from Landlord. Any overpayment by Tenant of Tenant's Proportionate Share of the Common Area Maintenance Cost for the prior calendar year or relevant portion thereof shall be, at Tenant's election made by written notice to Landlord, refunded to Tenant within thirty (30) days of receipt of such notice or applied to Rent thereafter falling due.

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Taxes.  Tenant agrees to pay to Landlord during each calendar year during the Term, as additional rent, Tenant's Proportionate Share of Taxes (as hereinafter defined) for such year, in advance in monthly installments on or before the first day of each month, in an amount reasonably estimated by Landlord.  Upon receipt of final tax and assessment bills attributable to the applicable calendar year, Landlord shall furnish Tenant with a written statement of the actual amount of Taxes for such year.  If the total amount paid by Tenant under this Section for such year is more or less than the actual amount due from Tenant, Tenant shall pay to Landlord or Landlord shall credit or refund to Tenant, as the case may be, the difference between the amount paid by Tenant and the actual amount due.  Tenant's Proportionate Share of Taxes shall be prorated on a per diem basis for the calendar years in which the Term commences and expires.  The term "Taxes" shall be calculated on an accrual basis and shall mean and include all taxes, assessments and other governmental charges, general and special, ordinary and extraordinary, of any kind and nature whatsoever, on all land, buildings, improvements, equipment, franchise, sales, or use, including, but not limited to, assessments for public improvements or benefits and all rental or rental use taxes related to the Property assessed by any governmental authority whether measured by Tenant's gross rental payments or otherwise, which shall during the Term hereby demised be laid, assessed, levied, imposed upon or be due and payable.

Utilities.  Tenant agrees, at its own expense, to pay, either to Landlord in accordance with this Section, or, at Landlord's option and if possible, directly to the applicable utility provider, all charges for electricity, gas and domestic hot and cold water provided to the Premises during the Term, and any utility charges for the Premises that result from Tenant's overuse of Building services and are billed to Tenant by Landlord.  Tenant shall not be required to pay for any submetering of the Premises.  If separate bills are not obtainable for any utility charges or expenses, Tenant shall pay Landlord, as additional rent, Tenant's Proportionate Share of such charges and expenses, subject to adjustment based on any extraordinary use or consumption of any utility by Tenant on the Premises, within ten (10) days after Landlord's provision to Tenant of an invoice to Tenant therefor, together with a copy of the bill on which such invoice was based from the applicable utility provider.  If any charges due from Tenant to a utility provider under this Section 4.4 are not paid when due, Landlord may pay the same and in such event the sums so paid by Landlord, with interest from the date of payment at the rate twelve percent (12%) per annum, shall be additional rent due and payable by Tenant at once without notice or demand.

Additional Rent.  Tenant covenants to pay and discharge when the same shall become due, as additional rent, all amounts, liabilities and obligations that Tenant has assumed or agreed to pay or discharge pursuant to this Lease, together with every fine, penalty, interest and cost which may be added for nonpayment or late payment thereof.  All Base Rent, and additional rent or any other amounts payable by Tenant under this Lease shall be referred to herein as "Rent" or "rent."

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Late Charge.  Tenant also agrees to pay to Landlord on demand, as additional rent, interest at the rate of twelve percent (12%) per annum (or the highest rate permitted by applicable law, whichever is lower) on all overdue installments of Rent (except any portion thereof which constitutes interest).

Place of Payment.  All Rent payable hereunder, as well as all other amounts payable by Tenant to Landlord under the terms of this Lease, shall be paid at the office of Landlord set forth in Paragraph H of the Summary of Basic Lease Terms, or at such other place as Landlord may from time to time designate, in lawful money of the United States.

[Intentionally Omitted].

Use; Indemnity.

Permitted Use.  Tenant shall use the Premises solely for the use set forth in Paragraph I of the Summary of Basic Lease Terms and shall not permit the Premises to be used for any other purpose.

Compliance with Laws and Rules.  Tenant shall at its sole cost and expense promptly comply with all applicable laws, statutes, ordinances, rules, regulations, orders and requirements in effect during the Term regulating the use or occupancy of the Premises, including the requirements of any board of fire underwriters or other similar body now or hereafter constituted.  Tenant shall comply with any Building rules and regulations established by Landlord from time to time.  Landlord shall not be responsible to Tenant for the non-performance of said rules and regulations by any other tenants of the Building.

Hazardous Materials.  Without limiting the generality of Section 6.2, above, Tenant shall not (either with or without negligence) cause or permit the escape, disposal or release of any hazardous substances on or about the Premises or Property, nor shall Tenant allow the storage or use of, or allow to be brought on or about the Premises or Property any such substances, except for such amounts as are generally used in the operation of Tenant's business on the Premises in material compliance with applicable laws.  As used in this Section, "hazardous substances" means any substances or materials whose use, manufacture, sale, or transportation is subject to any federal, state or local environmental, safety or health laws, including without limitation the Comprehensive Environmental Response, Compensation and Liability Act and Resource Conservation and Recovery Act.  Tenant will be solely responsible for and will defend, indemnify and hold Landlord, its agents and employees harmless from and against all claims, costs and liabilities, including attorneys' fees, court costs, and other expenses of litigation arising out of or in connection with any breach of this Section.  If any lender or governmental agency shall ever require testing to ascertain whether or not there has been any hazardous materials on or about the Premises (or, as a result of Tenant's actions, on or about other portions of the Property), then the costs thereof shall be reimbursed by Tenant to Landlord upon demand as additional Rent.  The provisions of this Section shall survive the expiration or earlier termination of this Lease.

Prohibited Uses.  Tenant shall not perform any acts or carry on any practices which may injure the Building, violate any certificate of occupancy affecting same, constitute a public or private nuisance or a menace to other tenants in the Building, or any other occupants, guests or invitees in the Building, produce undue noise, create obnoxious fumes or odors or otherwise cause unreasonable interference with other tenants, neighbors, occupants, guests or invitees in the Building.  In addition, Tenant shall not (a) permit any unlawful practice to be carried on or committed in the Premises; (b) make any use of or allow the Premises to be used for any purpose that might invalidate or increase the rate of insurance thereof; (c) keep or use, or permit to be kept or used, in the Premises any inflammable fluids or explosives; (d) deface or injure the Premises or the Building; (e) overload the floors, walls or ceilings of the Premises; or (f) commit or suffer any waste in or about the Premises.

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Indemnification.  Tenant shall pay and protect, indemnify and save harmless Landlord and all beneficiaries, agents and employees of Landlord from and against, any and all liabilities, losses, damages, costs, expenses (including all attorneys' fees and expenses of Landlord), causes of action, suits, claims, demands or judgments of any nature whatsoever (except those arising solely from acts of Landlord, its agents or employees) arising from (a) any injury to, or the death of, any person or any damage to property in the Premises, or in any manner growing out of or connected with the use, non use, condition or occupation of the Premises or any part thereof or resulting from the condition thereof, (b) the violation of any agreement or condition of this Lease, and (c) the negligence or intentional misconduct of Tenant.  Landlord shall pay and protect, indemnify and save harmless Tenant and all beneficiaries, agents and employees of Tenant from and against, any and all liabilities, losses, damages, costs, expenses (including all attorneys' fees and expenses of Tenant), causes of action, suits, claims, demands or judgments of any nature whatsoever (except those arising solely from acts of Tenant, its agents or employees) arising from (a) any injury to, or the death of, any person or any damage to property in the Property other than the Premises, or in any manner growing out of or connected with the use, non use, condition or occupation of the Property or any part thereof (excluding the Premises) or resulting from the condition thereof, (b) the violation of any agreement or condition of this Lease, and (c) the negligence or intentional misconduct of Landlord.

Utilities and Services.  Landlord will cause to be made available to Tenant upon the Premises, facilities for the supply of domestic hot and cold running water at general points of usage, gas and electricity.  Tenant shall use the electricity supplied to the Premises only for standard lighting and standard office and laboratory equipment.  Landlord shall not be liable for any damage, loss or expense incurred by Tenant by reason of any interruption, reduction (permanent or temporary) or failure of the utilities and services.

 

Landlord's Maintenance.  Landlord, at Landlord's expense, shall maintain the structural integrity of the foundations, exterior roof and exterior walls (excluding the interior surface of exterior walls and all windows, doors and plate glass) of the Building, utility lines and pipes to the point of entry into the Premises and all systems and equipment (including the heating, ventilation and air conditioning systems and equipment) that are not for the sole use of the Premises.  Tenant shall, contemporaneously herewith, provide to Landlord a copy of Tenant's operating standards, outlining Tenant's requirements for servicing and testing the Generator, to which operating standards the Generator has been historically maintained prior to its conveyance to Landlord.  Landlord shall continue to maintain the Generator in accordance with such operating standards, including without limitation servicing and testing of the Generator at least twice during each calendar year.  If Landlord fails to so maintain the Generator, Tenant may, but shall not be obligated to, cure any such failure:  (a) after providing to Landlord notice of such failure and the continuance of such failure for ten (10) days after giving such notice; or (b) immediately if there is a likelihood that Landlord's failure to maintain the Generator will result in the Generator's inability to provide back-up electricity critical to Tenant's business operations at the Premises.  If Tenant so elects to cure Landlord's failure to maintain the Generator, all costs and expenses paid or incurred by Tenant in curing such default by Landlord shall be, at Tenant's option, reimbursed by Landlord to Tenant within ten (10) days after Landlord's receipt of an invoice therefor, or credited towards the next payment of Rent due from Tenant.  Landlord shall otherwise have no obligation to commence any repair until a reasonable time after the receipt by Landlord of written notice of the need for repairs or Landlord's actual knowledge that such repair is required.

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Tenant's Maintenance.  Tenant shall exercise due care in the use and occupancy of the Premises and the Building and shall, at its expense, keep in good condition and maintain and repair all portions of the Premises that are not the responsibility of Landlord.  If the heating, ventilation and air conditioning system and equipment for the Premises is for the sole use of the Premises, Tenant, at its cost, shall maintain, repair and keep such system and equipment in good working order.

Alterations and Additions.  Tenant shall not make any alterations or additions to the Premises without Landlord's prior written consent, which consent shall not be unreasonably withheld.  All work shall be performed in accordance with applicable building codes and governmental regulations, by contractors and in accordance with plans approved by Landlord (which approval shall not be unreasonably withheld), and shall comply with all insurance requirements and with applicable governmental laws, statues, ordinances, rules and regulations.  All such alterations, improvements and changes shall become upon completion the property of the Landlord, unless otherwise agreed to in writing by the Landlord.  All costs of any work performed by or at the request of Tenant shall be paid promptly by Tenant so as to avoid the assertion of any mechanic's or materialmen's liens.  Within 30 days after receipt of notice thereof, Tenant shall discharge, by bonding, payment or other means acceptable to Landlord, any mechanic's lien filed against the Premises or the Building resulting from material or labor furnished or performed at the instance or request of Tenant.  If the lien is not discharged within said 30 day period, Landlord shall have the right, but not the obligation, to discharge said lien by payment, bonding or otherwise, and the costs and expenses to Landlord of obtaining such discharge shall be paid to Landlord by Tenant on demand as additional rent.

Insurance.

Tenant's Insurance.  Tenant shall maintain throughout the Term, at its expense, insurance of the following character: (a) casualty insurance against loss or damage by fire and other risks from time to time included under "extended coverage" policies, in the amount of the full replacement cost of all alterations, improvements and changes made to the Premises by Tenant, and all furniture, trade fixtures, equipment, merchandise and all other items of Tenant's property on the Premises; (b) commercial general public liability insurance (including contractual liability) against claims for bodily injury, death or property damage occurring on, in or about the Premises and the adjoining streets, sidewalks and passageways, with not less than $1,000,000 combined single limit per occurrence, provided that said limits of liability shall be increased at the direction of Landlord if in Landlord's reasonable judgment increased limits are required to protect Landlord and Tenant against exposure for claims covered thereby; and (c) worker's compensation insurance in amounts required by applicable law.  All insurance carried by Tenant hereunder shall be with companies licensed in the State of Colorado.  Copies of all such policies or certificates issued by the insurance company evidencing the existence and amounts of such policies shall be delivered to Landlord prior to possession.  No such policy shall be cancelable or subject to modification except after 30 days prior written notice to Landlord and any mortgagee required to be named thereunder.  Tenant shall, within 30 days prior to the expiration of such policies furnish Landlord with renewals thereof, or Landlord may order such insurance and charge the cost thereof to Tenant, which amount shall be payable by Tenant upon demand as additional rent.

Landlord's Insurance.  From and after the Commencement Date and thereafter during the Term, Landlord, it successors or assigns shall carry and maintain:  (a) property insurance against perils customarily included within special form-causes of loss coverage, including coverage for windstorm, hail and other hazards, casualties and contingencies, on the Common Area and the Building, including the Premises, leasehold improvements to the Premises (whether made by Landlord or Tenant), and including any other property of Landlord within the Premises but excluding Tenant's trade fixtures and equipment, and other personal property on or about the Premises, in an amount equal to the full replacement value thereof at the time of loss, with annual adjustments of value under the policy; and (b) the commercial general liability insurance with minimum limits of not less than $1,000,000 with respect to injury or death to any one person,  and of not less than $2,000,000 with respect to any one occurrence, and with minimum limits of not less than $1,000,000 with respect to property damage arising out of any one occurrence on or about the Common Area.

 

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Waiver of Subrogation.  Anything to the contrary in this Lease notwithstanding, neither party, nor its officers, directors, employees, agents or invitees, nor, in case of Tenant, its subtenants, shall be liable to the other party or to any insurance company (by way of subrogation or otherwise) insuring the other party for any loss or damage to any building, structure or other tangible property, when such loss is caused by any of the perils which are or could be insured against under the all-risk property insurance policies required hereunder, or losses in the form of payment of any deductible under such policies, or losses under workers' compensation laws and benefits, even though such loss or damage might have been occasioned by the negligence of such party, its agents or employees (this clause shall not apply, however, to any damage caused by intentionally wrongful acts or omissions).  Each party represents that its current insurance policies allow such waiver..

Casualty.  If the Premises is destroyed in whole or in part by fire, the elements, or other casualty and if, in the sole opinion of the Landlord, the Premises cannot be repaired within 60 days from said injury and the Landlord informs the Tenant of said decision; or if the Premises are damaged in any degree and the Landlord informs the Tenant it does not desire to repair same and desires to terminate this lease; then this lease shall terminate on the date of such injury.  In the event of such termination, the Tenant shall immediately surrender the possession of the Premises and all rights therein to the Landlord; shall be granted a license to enter the Premises at reasonable times to remove the Tenant's property; and shall not be liable for rent accruing subsequent to said event.  The Landlord shall have the right to immediately enter and take possession of the Premises and shall not be liable for any loss, damage or injury to the property or person of the Tenant or occupancy of, in or upon the Premises.  If the Landlord repairs the premises within 60 days, this lease shall continue in full force and effect and the Tenant shall not be required to pay rent for any portion of said 60 days during which the premises are wholly unfit of occupancy.

Condemnation.  In the event of a condemnation or other taking of any portion of the Premises by any governmental agency, this Lease shall terminate, all proceeds shall be paid to the Landlord, and Tenant waives all right to any such payments.

Subletting and Assignment.  Tenant shall not sublet all or any part of the Premises, or assign this Lease or any interest herein, without Landlord's prior written consent, which consent shall not be unreasonably withheld.  Tenant agrees to reimburse Landlord for all reasonable expenses in connection with any assignment or subletting, including but not limited to reasonable attorney fees and lender approval fees.  Consent by Landlord to any one assignment or subletting shall not in any way be construed as relieving Tenant from obtaining the Landlord's express written consent to any further assignment or subletting.

Default and Remedies.

Default. An event of default shall occur under this Lease if Tenant, at any time during the Term:  (a) fails to pay Rent within five (5) days after the date due; (b) fails to cure, promptly after notice from Landlord, any hazardous condition which Tenant has created or suffered in violation of law or this Lease; or (c) fails to observe or perform any other non‑monetary provision of this Lease for 30 days after Landlord has delivered to Tenant written notice of such failure.

 

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Remedies.  Upon the occurrence of an event of a default, Landlord shall have all of the following remedies, in addition to all rights and remedies provided at law or in equity:  (a) Landlord may terminate this Lease and repossess the Premises and be entitled to recover as damages a sum of money equal to the total of (i) the cost of recovering the Premises, including Landlord's attorneys' fees; (ii) the unpaid Base Rent and additional rent earned at the time of termination, plus interest thereon at the rate of twelve percent (12%) per annum from the due date; (iii) the balance of the Base Rent for the remainder of the Term less the reasonable rental value if subleased under the terms of this Lease; (iv) damages for the wrongful withholding of the Premises by Tenant; and (v) any other sum of money and damages owed by Tenant to Landlord; (b) Landlord may retake possession of the Premises and shall have the right but not the obligation, without being deemed to have accepted a surrender thereof, and without terminating this Lease, to relet the same for the remainder of the term provided for herein upon terms and conditions satisfactory to Landlord; and if the rent received through such reletting does not at least equal the Base Rent and additional rent provided for herein, Tenant shall pay and satisfy any deficiency between the amount of the rent so provided for and that received through reletting; and, in addition, Tenant shall pay all reasonable expenses incurred in connection with any such reletting, including, but not limited to, the cost of renovating, altering and decorating for an occupant and leasing commissions paid to any real estate broker or agent and attorneys' fees incurred.

Landlord's Right to Cure.  Landlord may, but shall not be obligated to, cure any default by Tenant after complying with the notice provisions herein set forth, and whenever Landlord so elects, all costs and expenses paid or incurred by Landlord in curing such default, including, without limitation, attorneys' fees, shall be so much additional rent due on demand with interest as provided in Article 4.

Rights Cumulative; Non Waiver.  No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy, and each and every right and remedy shall be cumulative and in addition to any other right or remedy given hereunder or now or hereafter existing at law or in equity.  The failure of Landlord to insist at any time upon the strict performance of any covenant or agreement or to exercise any option, right, power or remedy contained in this Lease shall not be construed as a waiver or relinquishment thereof for the future.  The receipt by Landlord of any Rent or any other sum payable hereunder with knowledge of the breach of any covenant or agreement contained in this Lease 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.

Bankruptcy.  Nothing contained in this Article 13 shall limit or prejudice the right of Landlord to prove and obtain as liquidated damages in any bankruptcy, insolvency, receivership, reorganization or dissolution proceeding, an amount equal to the maximum allowed by any statute or rule of law governing such a proceeding and in effect at the time when such damages are to be proved, whether or not such amount be greater, equal to or less than the amounts recoverable, either as damages or rent, referred to in any of the preceding provisions of this Article 13.  If Tenant becomes insolvent, Landlord may declare this lease ended, and all rights of the Tenant hereunder shall terminate and cease.

Subordination and Attornment.  This Lease, and all rights of Tenant hereunder, are and shall at all times be subject to and subordinate to all ground or underlying leases, reciprocal easement agreements, declarations, restrictive covenants or the lien of any mortgage, deed of trust, or other security instrument, and any extensions, consolidations, modifications or replacements thereof, that may now or hereafter affect the real property that includes the Premises or any portions thereof.  If requested by the mortgagee or trustee under any first mortgage encumbering the Building, Tenant will either (a) execute a document evidencing the subordination of this Lease to such mortgage, or (b) make certain of Tenant's rights and interests in this Lease superior to said mortgage and promptly execute and deliver such agreement or agreements as may be required by such mortgagee or trustee under any first mortgage.  Tenant shall, within ten (10) days following the request of Landlord or any secured party, execute and deliver whatever instruments may be required to further evidence or confirm the foregoing.

 

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Mortgagee Protection.  Tenant agrees to give any mortgagee of the Building, by registered or certified mail, a copy of any notice of default served upon the Landlord by Tenant, provided that prior to such notice Tenant has been notified in writing (by way of service on Tenant of a copy of an assignment of rents and leases or otherwise) of the name and address of such mortgagee. Tenant further agrees that Tenant shall have no right to, and shall not, take any action with respect to this Lease adverse to the interests of Landlord or any such mortgagee on account of Landlord's default if Landlord or such mortgagee is diligently pursuing the remedies or steps necessary to cure or correct such default, including, without limitation, commencement of foreclosure proceedings if necessary to effect such a cure.

Quiet Enjoyment.  Landlord agrees that Tenant, upon paying rent and other monetary sums due under this Lease and performing the covenants and conditions of this Lease, may quietly have, hold and enjoy the Premises during the Term hereof, subject, however, to the provisions herein referring to subordination and condemnation.

Delays.  Whenever Landlord shall be delayed or restricted in the performance of any obligation of Landlord herein with respect to the performance of work or repairs by reason of Landlord's inability to obtain materials, services or labor required for such performance or by reason of any statute, law or regulation of a government entity, or by reason of any other cause beyond Landlord's control, Landlord shall be entitled to extend the time for such performance by a time equal to the extent of the delay or restriction, and Tenant shall not be entitled to compensation for any inconvenience, nuisance or discomfort occasioned thereby.

Surrender of Premises.  Upon the expiration or sooner termination of the Term, Tenant agrees to quit and surrender the Premises, broom-clean, in good condition and repair, and the Landlord Personal Property in substantially the same condition as that existing on the Effective Date, ordinary wear and tear excepted in both cases, together with all keys and combinations to locks, safes and vaults and all improvements, alterations, additions, lighting fixtures and equipment at any time made or installed in, upon or to the interior or exterior of the Premises, all of which shall thereupon become the property of Landlord.  Before surrendering the Premises, Tenant shall remove all of Tenant's personal property, signs and trade fixtures.  If Tenant shall fail to remove any of Tenant's personal property and trade fixtures, the same shall be deemed abandoned and become the exclusive property of Landlord.  Tenant's obligations under this Section 17 shall survive the expiration or sooner termination of this Lease.

General Provisions.

Estoppel Certificates.  Tenant shall at any time, upon notice from Landlord, execute, acknowledge and deliver to Landlord a statement in writing (a) certifying that this Lease is unmodified and in full force and effect (or if modified, stating the nature of the modifications) and the dates to which the rent and other charges are paid in advance, and (b) acknowledging that there are not, to Tenant's knowledge, any uncured defaults on the part of Landlord hereunder or specifying such defaults if any exist, (c) acknowledging to any mortgagee that Tenant will not modify or amend this Lease without the consent of such mortgagee and (d) certifying to any other matter about which Landlord may reasonably request information.  Tenant appoints Landlord its attorney-in-fact to execute such written statement if Tenant fails to do so within ten (10) days of receipt of Landlord's written notice.

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Transfer of Landlord's Interest.  Upon a sale or conveyance by Landlord of Landlord's interest in the Premises, Landlord shall be relieved from and after the date of such transfer of all liability accruing thereafter on the part of Landlord; provided that any funds in the hands of Landlord at the time of transfer in which Tenant has an interest shall be delivered to the successor of Landlord.  This Lease shall not be affected by any such sale.

Waiver of Jury Trial.  Landlord and Tenant each waive any and all rights to a trial by jury of any issues arising out of, or with respect to, this Lease or any course of dealing between Landlord and Tenant.

Costs and Expenses.  If either Landlord or Tenant becomes a party to any litigation concerning this Lease or the Premises by reason of any act or omission of the other, the party that causes the other to become involved in the litigation shall be liable to that party for that party's reasonable attorneys' fees and costs incurred in such litigation. If either Landlord or Tenant commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs incurred in such action.

Captions.  Article and Section or Paragraph captions are for convenience only and are not a part of this Lease and shall not be used for interpretation or construction of this Lease.

Time of Essence. Time is of the essence in this Lease.

Severability.  The invalidity of any provision of this Lease, as determined by a court of competent jurisdiction, shall in no way affect the validity of any other provision hereof.

Entire Agreement.  This Lease, along with any exhibits or attachments hereto, constitutes the entire agreement between the parties relative to the Premises and there are no oral agreements or representations between the parties with respect to the subject matter hereof.  This Lease supersedes and cancels all prior agreements and understandings with respect to the subject matter hereof.  This Lease may be modified only in writing, signed by the parties in interest at the time of modification.

Recording.  This Lease shall not be recorded and any recordation shall be a breach under this Lease.

Binding Effect; Choice of Law.  Subject to any provisions hereof restricting assigning or subletting by Tenant and subject to the provisions for the transfer of Landlord's interest, this Lease shall bind the parties, their successors and assigns.  This Lease shall be governed by the laws of the State of Colorado.

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Holding Over; Payments After Termination.  If Tenant or any party claiming under Tenant holds over in possession at the expiration of the Term by lapse of time or otherwise, such holding over shall not be deemed to extend the Term or renew this Lease, and such holding over shall be an unlawful detainer and such parties shall be subject to immediate eviction and removal.  Tenant shall pay upon demand to Landlord during any period while Tenant shall hold the Premises after expiration of the Term, as liquidated damages, a sum equal to one hundred fifty percent (150%) of the monthly Rent in effect for the last month of the Term, and Tenant shall also pay all damages directly resulting from such holding over that are sustained by Landlord by reason of such holding over (but in no event any punitive or consequential damages).  No payments of money by Tenant to Landlord after the termination of this Lease, in any manner, or after giving of any notice (other than a demand for payment of money) by Landlord to Tenant, shall reinstate, continue or extend the term of this Lease or affect any notice given to Tenant prior to the payment of such money.

Entry by Landlord.  Landlord and its agents shall have the right to enter the Premises at all reasonable times for the purpose of examining or inspecting the same, to supply any services to be provided by Landlord hereunder, and make such alterations, repairs, improvements or additions to the Premises or to the Building of which they are a part as Landlord may deem necessary or desirable.  Tenant shall permit Landlord to show the Premises to prospective tenants and place "For Lease" or "For Sale" signs on the Premises or in such locations as will not reasonably interfere with Tenant's use of the Premises.  If Tenant or Tenant's agents or employees shall not be present to permit entry into the Premises at any time when for any reason entry therein shall be necessary in the reasonable judgment of Landlord to prevent injury or damage, Landlord or Landlord's agents or employees may enter same by master key or by forcible entry without liability therefor and without in any manner affecting the obligations, covenants, terms or conditions of this Lease.

Notices.  All notices or demands of every kind required or desired to be given by Landlord or Tenant hereunder shall be in writing and shall be deemed to have been properly given if personally served or sent by registered or certified mail, postage prepaid, return receipt requested, addressed to the Landlord or Tenant at the addresses set forth in Paragraph H of the Summary of Basic Lease Terms., as the case may be, and such notice so mailed shall be deemed to have been delivered on the first business day following deposit in the mail or upon the refusal to accept notice.  Service may also be made by posting notice in a conspicuous place on the Premises when such notice is given from Landlord to Tenant and it shall be deemed given when so posted.  Landlord and Tenant shall each have the right from time to time to specify as its address for purposes of this Lease any other address in the United States of America upon five (5) days' advance notice thereof, given in accordance with this Section 18.13, to the other party.

Brokers.  Tenant warrants and represents that it has not dealt with any real estate broker or finder in connection with the transaction evidenced hereby except for the broker named in Paragraph J of the Summary of Basic Lease Terms, for whose commission Landlord shall be responsible, and Tenant hereby agrees to indemnify, defend, and hold Landlord harmless from and against any and all claims which may be made by any other broker or finder in connection with the transaction evidenced hereby.

Counterparts.  This Lease may be executed in several counterparts, each of which shall be deemed an original, and all such counterparts shall together constitute one and the same instrument.

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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the day and year first above written.

 

 

 

 

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EXHIBIT A

TO

LEASE

Diagram Showing The Location Of The Premises

[Floor Plan]

 

 

 

 

 

 

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EXHIBIT B

TO

LEASE

Landlord's Work

This Exhibit B is attached to and made a part of that certain Lease Agreement dated as of October 16, 2015, between VENAXIS, INC., a Colorado corporation, as "Tenant", and NIEBUR GOLF DEVELOPMENT, LLC, a Colorado limited liability company, as "Landlord", for Premises in the Property located at 1585 S. Perry Street, Castle Rock, Colorado  80104 (the "Lease").  Capitalized terms used in this Exhibit without further definition have the meanings given to them in the Lease.

 

 

 

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EXHIBIT B
TO ADDENDUM
Other Personal Property

1.	Approximately 22 staff cubicles, shelving and chairs in the area denoted as "Cubicle Area" on the floor plan attached to the Leaseback Agreement as Exhibit "A.".

2.	Conference table and associated chairs in the area denoted as "Cubicle Area" on the floor plan attached to the Leaseback Agreement as Exhibit "A.".

3.	Conference table and associated chairs in the conference room in the southeast corner of the building.

4.	Eating table and associated chairs in the kitchen area on the southeast section of the Building.

5.	Back-up generator located on a pad across the drive from the building constructed on the Property, the value of which Buyer and Seller have agreed for conveyance purposes is $3,000, and which amount has been included in the Purchase Price.