Exhibit 10.2
OFFICE LEASE
OFFICE LEASE
This Lease is made and entered into as of the 25 day of September, 1998,
between: SFP REALTY, LTD., L.L.P., a Colorado limited liability partnership,
0000 Xxxxxx Xxxx., Xxxxxxx, Xxxxxxxx 00000 ("Landlord"), and COLORADO BUSINESS
BANK OF BOULDER NATIONAL ASSOCIATION, 0000 00xx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000
("Tenant").
I. PREMISES; USE
A. Landlord hereby leases to Tenant approximately 6,000 gross square feet
consisting of the entire space of the building ("Building") located at
0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, (the "Premises"), on the terms
and conditions set forth herein. The Premises are more particularly
described on Exhibit A attached hereto.
B. Tenant shall not use or permit the Premises or any part thereof to be used
for any purpose or purposes other than for operation of a business bank and
all related or ancillary services associated therewith; Tenant agrees that
no use shall be made or permitted to be made of the Premises, or acts done,
which will increase the rate of insurance upon the Building or cause a
cancellation of any insurance policy covering the Building, or any part
thereof, nor shall Tenant sell, or permit to be kept, used, or sold in or
about the Premises, any article which may be prohibited by the standard
form of insurance policies. Tenant shall not commit, or cause to be
committed, any public or private nuisance upon the Premises, or other act
or thing which may disturb the quiet enjoyment of any other tenant in the
Building nor, without limiting the generality of the foregoing, shall
Tenant allow the Premises to be used for any improper, immoral, unlawful or
objectionable purpose.
C. Tenant shall at its sole cost and expense comply with all laws, statutes,
ordinances and governmental rules, regulations or requirements now in force
or which may hereafter be in force and with the requirements of any board
of fire underwriters or other similar body now or hereafter constituted
relating to or affecting the condition, use or occupancy of the Premises,
excluding structural changes not caused by Tenant's improvements or the
nature of Tenant's occupancy of the Premises.
D. Tenant shall not place any holes in any part of the Premises or place any
exterior or interior signs or interior drapes, blinds, or similar items
visible from the outside of the Premises without the prior written approval
of Landlord.
E. Tenant shall not knowingly permit any employees, agents or guests of Tenant
to violate any covenant or obligation of Tenant hereunder.
F. Except as may be permitted in Article V, Section D below, Tenant agrees
that it will not bring in or permit the placing within the Premises of any
machine or property heavier than customarily used in connection with
general office purposes.
II. TERM
A. This Lease shall be for a term of ten (10) years ("Primary Lease Term"),
unless sooner terminated as herein provided, beginning on January 1, 1999
(the "Lease Commencement Date"). The Primary Lease Term may be extended
pursuant to Paragraph B below.
B. If Landlord, for any reason whatsoever, cannot deliver possession of the
Premises to Tenant on the Lease Commencement Date, this Lease shall not be
void or voidable, nor shall Landlord be liable to Tenant for any loss or
damage resulting therefrom, but in that event the term of the Lease shall
be amended to commence on the date when the Landlord can deliver possession
and the expiration date shall be extended accordingly (unless possession
cannot be delivered within 180 days after the Lease Commencement Date for
reasons other than Landlord's failure to comply with its obligations under
Exhibit C attached hereto, in which case Tenant shall have the right to
terminate this Lease upon written notice to Landlord without penalty to
either party). If permission is given
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to Tenant to occupy the Premises prior to the Lease Commencement Date, such
occupancy shall be subject to all of the provisions of this Lease.
III. RENT
A. See Exhibit B (attached hereto), Paragraph 1 for Rent Schedule.
B. Tenant also agrees to pay to Landlord, as additional rent without offset or
reduction, one hundred percent (100%) of the Building Expenses (as
hereinafter defined) during the term of this Lease. From time to time,
Landlord shall reasonably estimate the amount of Building Expenses, and
Tenant shall pay additional rent, in advance, based upon such estimate. If
the actual Building Expenses exceed Landlord's estimate for a period,
Tenant shall pay to Landlord such excess within thirty (30) days of notice
of such excess. If the actual Building Expenses are less than Landlord's
estimate for a period, the difference shall be applied to the next amounts
owing by Tenant to Landlord pursuant to this Section B. If the term of
this Lease ends (other than due to default by Tenant hereunder) and Tenant
has complied with all the provisions hereof, Tenant shall be entitled to a
prompt refund of any excess amounts which Tenant has paid to Landlord
pursuant to this Section B.
C. For the purposes hereof, the term "Building Expenses" shall mean all
expenses pertaining to the Building, the land underneath and surrounding
the Building as described in Exhibit A attached hereto, including any
parking areas and/or parking structure located thereon or adjacent thereto
leased by Tenant (collectively, the "Building Area"), including, but not
limited to, the following:
1. all general and special real estate or ad valorem taxes (including,
but not limited to, any new or different tax imposed in lieu of or in
addition to existing taxes) or assessments levied against the Building
Area by any governmental or quasi-governmental authority or by any
applicable association of property owners;
2. the cost of all utilities (including, but not limited to, water,
sewer, electricity, natural gas and any other energy used for heating,
cooling or other purposes) which utilities shall be billed directly to
and separately paid by Tenant;
3. building supplies, janitorial services, trash removal, maintenance,
repair and replacements of the Building Area (including, but not
limited to, elevators and heating, ventilating and air conditioning
equipment and fire monitoring and control systems). All services for
janitorial, trash, snow removal and recycling shall be contracted for
by Tenant and billed directly to and separately paid by Tenant.
Tenant shall have the option to maintain in effect, at Tenant's
expense, a maintenance contract for the heating, ventilation and air
conditioning equipment serving the Building Area with a contractor
acceptable to Landlord;
4. landscaping maintenance and repair;
5. resurfacing (subject to mutual agreement of Landlord and Tenant),
repair and restriping parking surfaces;
6. insurance (including, but not limited to, fire and extended coverage,
public liability and business interruption insurance and loss of rents
insurance), but Tenant shall have no interest in such insurance or the
proceeds thereof;
7. labor costs incurred in the operation or maintenance of the Building
Area, including, but not limited to, wages and other payments,
Workmen's Compensation and disability insurance, payroll taxes and
fringe benefits;
8. Security shall be at Tenant's option and Landlord shall have no
obligation to provide any security. Should Tenant only elect to
provide its own security, it may do so with Landlord's consent, which
shall not be unreasonably withheld. All costs related thereto shall
be billed directly to and separately paid by Tenant;
9. reasonable management fees, legal, accounting, inspection and
consultation fees applicable
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to the Building Area; and
10. any costs incurred by Landlord for any capital improvements,
structural repairs, replacements or other modifications to the
Building Area to affect labor savings or otherwise reduce Building
Expenses, or required by any change occurring after the issuance of
the Certificate of Occupancy for the Building in the laws, ordinances,
rules, regulations or orders of any governmental or quasi-governmental
authority having jurisdiction over the Building Area, which costs
shall be amortized over the useful life of the applicable capital
improvement or structural repair; however, the annual amortization
amount will not exceed the reduction in Building Expenses as projected
by Landlord's accountant for the relevant year.
D. All reasonable determinations by Landlord pursuant to this Article shall be
presumed to be correct. Until Tenant is advised of the adjustment in the
rent, if any, pursuant to the provisions of this Article, Tenant's monthly
rental shall continue to be paid at the current rate (including all prior
adjustments pursuant to Section B of this Article). No failure by Landlord
to require the payment of additional rent by Tenant pursuant to Section B
of this Article for any period shall constitute a waiver of Landlord's
right to collect such additional rent for such period or for any subsequent
period.
E. If any installment of rent due hereunder is not paid by Tenant on or before
twelve o'clock noon on the seventh (7th) calendar day following the day on
which such installment was due, Tenant shall be required to pay a late
charge of five percent (5%) of such delinquent installment. Any such late
charge shall be due and payable immediately.
F. Unless Landlord notifies Tenant to the contrary, all amounts payable
hereunder shall be payable to Landlord at Landlord's address set forth in
Article XIX below.
G. All Building Expenses shall be computed on the accrual basis. In computing
Building Expenses, (i) no cost or expense may be counted more than once,
(ii) any expenses which are paid by the proceeds of insurance shall be
excluded, and (iii) any expenses which are separately metered or billed
directly to and separately paid by any tenant shall be excluded.
H. Landlord shall provide Tenant with reasonably detailed statements showing
the computation of the Building Expenses once per year. Upon reasonable
prior notice given by Tenant to Landlord, Tenant shall have the right to
review the documentation relating to the computation of Building Expenses
pursuant to this Article during the ninety (90) day period immediately
following issuance of any such statements. Tenant shall have the right to
cause an audit to be made of such computation during such 90-day period, at
Tenant's expense. Any errors in Landlord's computation shall be promptly
corrected.
IV. SECURITY DEPOSIT
Tenant has deposited with Landlord the sum of Ten thousand and 00/100
($10,000.00) as security for the full and faithful performance of every
provision of this Lease to be performed by Tenant. If Tenant defaults with
respect to any provision of this Lease, including but not limited to the
provisions relating to the payment of rent, Landlord may use, apply or retain
all or any part of this security deposit for the payment of any rent or any
other sum in default, or for the payment of any other amount which Landlord may
spend or become obligated to spend by reason of Tenant's default or to
compensate Landlord for any other loss or damage which Landlord may suffer by
reason of Tenant's default. If any portion of said deposit is so used or
applied, Tenant shall, within five (5) days after written demand therefor is
made, deposit cash with Landlord in an amount sufficient to restore the security
deposit to its original amount. Landlord shall not be required to keep this
security deposit separate from its general funds and Tenant shall not be
entitled to interest on such deposit. If Tenant shall fully and faithfully
perform every provision of this Lease to be performed by it, the security
deposit or any balance thereof shall be returned to Tenant within ninety (90)
days after the expiration of the lease term and upon the vacation of the
Premises by Tenant. Landlord shall deliver the funds deposited herein by Tenant
to the purchaser of the Building in the event the Building is sold (or give such
purchaser a credit against the purchase price in the amount of such deposit),
and thereupon, Landlord shall be discharged from further liability with respect
to such deposit.
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V. LANDLORD'S SERVICES
A. Landlord shall maintain and repair the Building Area in a good and
workmanlike manner similar to other first class office buildings located in
Boulder, Colorado, and shall furnish the following services to the Premises
(the cost of which shall be included within Building Expenses):
1. air conditioning and heat required for ordinary office use; and
2. hot and cold water (to each floor in the Building) and electric
current for lighting the Premises and for ordinary office appliances
and machines only.
Landlord shall not be liable for damages nor shall any rent be abated for
failure to furnish, or delay in furnishing, any such service which is
occasioned by needed repairs, renewals or improvements, or by any strike or
labor controversy, or by any act or default of Tenant or due to the
inability of Landlord to obtain fuel or power from the utility company
supplying same, or for any cause beyond the reasonable control of Landlord,
unless such delay or service interruption continues for a period in excess
of thirty consecutive days and such delay or interruption renders the
Premises or any portion thereof untenantable for Tenant's normal business
operations, in which case the rent shall be abated in proportion to the
unusable portion of the Premises for any such excess. Landlord agrees to
use its best efforts to cause utility companies to continuously supply gas,
electricity, water and other necessary utilities to the Premises.
B. If heat generating machines or equipment (including, but not limited to,
telephone equipment) are used by Tenant in the Premises which affect the
temperature otherwise maintained by the air conditioning system, Landlord
reserves the right if requested by Tenant to install supplementary air
conditioning units in the Premises and the cost thereof, including the cost
of installation, and the cost of operation and maintenance thereof, shall
be paid by Tenant to Landlord upon demand by Landlord.
C. Tenant will not without the prior written consent of Landlord use any
apparatus or device in the Premises which will in any way increase the
amount of electricity or water usually furnished or supplied for use of the
Premises as general office space. Tenant shall not connect with any
electric current, except through existing electrical outlets in the
Premises, or to any water pipes, any apparatus or device, for the purposes
of using electric current or water. If Tenant shall require water or
electric current in excess of that usually furnished or supplied for use of
the Premises as general office space, Tenant must first procure the consent
of Landlord to the use thereof.
D. Notwithstanding anything contained in this Lease to the contrary, if
Landlord consents, Tenant may maintain and operate data processing
equipment and install a bank vault on the Premises. All additional costs
in connection therewith (including, but not limited to, additional support
flooring, insulation, electrical outlets and temperature maintenance
facilities) shall be borne by Tenant.
E. At Tenant's request and with Landlord's approval, Landlord shall furnish
the services described in Section A of this Article at times other than
specified in Section A, provided that Tenant shall pay the entire cost
thereof as reasonably determined by Landlord as additional rental,
notwithstanding the fact that such services may also benefit portions of
the Building other than the Premises.
VI. ASSIGNMENT AND SUBLETTING
Tenant shall not permit any part of the Premises to be used or occupied by
any persons other than Tenant, and the employees of Tenant, nor permit any part
of the Premises to be used or occupied by any licensee or concessionaire, or
permit any persons to be upon the Premises other than Tenant, and its employees,
customers and others having lawful business with Tenant. Tenant shall not
assign this Lease nor sublet all or part of the Premises without the prior
written consent of Landlord, which consent shall not be unreasonably withheld;
provided, however, such consent to any assignment or subletting shall not
relieve Tenant from its obligations as primary obligor (and not as surety or
guarantor) for the payment of all amounts due hereunder and for the full and
faithful observance and performance of the covenants, terms and conditions
herein contained.
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VII. ESTOPPEL CERTIFICATE
Within ten (10) days of notice from Landlord, Tenant shall execute,
acknowledge and deliver to Landlord an accurate statement in substantially the
form attached hereto as Exhibit B, certifying, among other things, that this
Lease is unmodified and in full force and effect (or, if modified, stating the
nature of such modification and certifying that this Lease, as so modified, is
in full force and effect) and the dates to which rental and other charges are
paid in advance, if any and acknowledging that there are not, to Tenant's
knowledge, any uncured defaults on the part of Landlord hereunder, or specifying
such defaults if any are claimed. At Landlord's option, such form may contain
other certifications relating to this Lease as may be reasonably required by
Landlord, so long as said certification and/or attestations do not expand or
modify the obligations or responsibilities currently existing herein. It is
expressly understood and agreed that any such statement may be relied upon by
any prospective purchaser or encumbrancer of all or any portion of the Building
Area. Tenant's failure to deliver such statement within such time period shall
be conclusive upon Tenant that this Lease is in full force and effect without
modification except as may be represented by Landlord, that there are no uncured
defaults in Landlord's performance under the Lease and that not more than one
month's rental has been paid in advance. Upon such failure, Tenant does hereby
make, constitute and irrevocably appoint Landlord as Tenant's attorney-in-fact
to execute the statement required under this Article VII on behalf of Tenant.
VIII. SUBORDINATION AND ATTORNMENT
If Landlord desires to finance, refinance, or sell the Premises or the
Building, or any part thereof, Tenant shall deliver to any potential lender or
purchaser designated by Landlord such financial statements of Tenant as may be
reasonably required by such lender or purchaser, including but not limited to
Tenant's financial statements for the past three (3) years. All such financial
statements shall be received by Landlord and such lender or purchaser in
confidence and shall be used only for the purposes herein set forth.
This Lease, at Landlord's option, shall be subordinate to any existing or
future mortgage, deed of trust, ground lease or declaration of covenants
(regarding maintenance and use of any areas contained in any portion of the
Building) and to any and all advances made under any mortgage or deed of trust
and to all renewals, modifications, consolidations, replacements and extensions
thereof. Tenant agrees that with respect to any of the foregoing documents, no
documentation, other than this Lease, shall be required to evidence such
subordination. If any holder of a mortgage or deed of trust shall elect to have
this Lease superior to the lien of its mortgage or deed of trust and shall give
written notice thereof to Tenant, this Lease shall be deemed prior to such
mortgage or deed of trust, whether this Lease is dated prior or subsequent to
the date of said mortgage or deed of trust or to the date of recording thereof.
Tenant agrees to execute such documents which may be required by Landlord to
confirm such subordination or priority within ten (10) days of notice from
Landlord (including, but not limited to, a Subordination, Non-Disturbance and
Attornment Agreement), and should Tenant fail to do so within such time period,
Tenant does hereby make, constitute and irrevocably appoint Landlord as Tenant's
attorney-in-fact and in Tenant's name, place and stead, to do so. Tenant hereby
agrees to attorn to any lender designated by Landlord and to all successor
owners of the Building, whether or not such ownership is acquired as a result of
a sale through foreclosure of a deed of trust or mortgage, or otherwise.
Notwithstanding anything to the contrary contained in this Article, so long as
Tenant fulfills all its obligations under this Lease, Tenant's possession of the
premises and Tenant's other rights under this Lease shall not be disturbed or
impaired by any holder of a mortgage or a deed of trust, or by any person
claiming through or under Landlord.
IX. LANDLORD'S RESERVED RIGHTS
Without notice (except as otherwise set forth in this Article) and without
liability to Tenant (except for damages caused by the gross negligence or
willful misconduct of Landlord or its agent), Landlord shall have the right at
any time or from time to time to:
A. enter into the Premises in order to take reasonable measures as Landlord
may deem advisable for the safety, repair, maintenance, improvement, care,
cleanliness, security and reputation of the Building, or for the safety,
security and welfare of the occupants of the Building, including Tenant,
and for such purposes take into and through the Premises or any part of the
Building, all required tools, equipment and materials, and temporarily
suspend use of doors, corridors, elevators or other facilities;
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B. exhibit the Premises to others at reasonable times upon reasonable notice;
or
C. upon at least five (5) days prior notice to Tenant, enter the Premises and
perform any obligation of Tenant hereunder which Tenant has failed to
perform satisfactorily if Landlord elects to do so.
X. RULES AND REGULATIONS
The rules and regulations attached hereto as Exhibit D, as well as such
reasonable rules and regulations as may be hereafter adopted by Landlord upon at
least ten (10) days prior notice to Tenant for the safety, care and cleanliness
of the Building Area and the preservation of good order thereon, are hereby
expressly made a part hereof, and Tenant agrees to obey all such rules and
regulations.
XI. REPAIRS AND ALTERATIONS
A. Except for those matters which are the responsibility of Landlord as set
forth in Article V, Tenant shall keep the Premises in good condition and
repair (except for reasonable wear and tear and damage due to fire or other
insured casualty), and the Premises shall not be altered, repaired or
changed without the prior written consent of Landlord, provided, however,
Landlord's consent shall not be required for non-structural alterations and
repairs to the interior of the Building, the cost of which does not exceed
$5,000.00 and which are consistent with the character and nature of the
Building. Tenant shall keep the Premises and Building free and clear of any
liens due to the actions of Tenant or its agents and shall indemnify, hold
harmless and defend Landlord from any such liens and encumbrances arising
out of any work performed or materials furnished by or at the direction of
Tenant. In the event any such lien is filed, Tenant shall do all acts
necessary to discharge such lien within thirty (30) days of filing, or if
Tenant desires to contest such lien, then Tenant shall deposit with
Landlord such reasonable security as Landlord shall demand to insure the
payment of such lien claim. In the event Tenant shall fail to pay any such
lien claim when due or shall fail to deposit the security with Landlord,
then Landlord shall have the right to expend all sums reasonably necessary
to discharge such lien claim on behalf of the Tenant, and Tenant shall
reimburse Landlord for such expenditure within ten (10) days of demand by
Landlord.
B. Unless otherwise agreed by Landlord, all alterations, improvements and
changes to the Premises that may be required or permitted hereunder shall
be subject to the approval of the Landlord and done either by or under the
direction of Landlord but at the cost of Tenant.
C. Unless otherwise agreed by Landlord, all alterations, improvements and
changes to the Premises made by or at the direction of Tenant, including,
but not limited to, all improvements made to the Premises pursuant to
Exhibit E attached hereto, shall become the property of Landlord in
accordance with Article XXI hereof.
D. Tenant shall not cause or permit any alterations, improvements or changes
to the Premises without the prior written consent of Landlord.
XII. DAMAGES TO PROPERTY; INJURY TO PERSONS; INDEMNITY
A. Tenant shall neither hold, nor attempt to hold Landlord liable for any
injury or damage, either proximate or remote, occurring through or caused
by fire, water, steam, or any repairs, alterations, injury or accident, or
any other cause to any person, to the Premises, to any furniture, fixtures,
tenant improvements, or other personal property of Tenant kept or stored in
the Premises or to other parts of the Building, except to the extent caused
by the gross negligence or willful misconduct of Landlord or its agent.
B. Tenant hereby agrees to indemnify, defend and save Landlord harmless of and
from all liability, loss, damages, costs or expenses, including reasonable
attorney's fees, on account of injuries to the person or damage to the
Building, the property of Landlord or of any other tenant in the Building,
or to any other person rightfully in the Building for any purpose
whatsoever, to the extent that such injuries or damage arise from the use
or occupancy of the Premises by Tenant, or are caused by any act, omission,
or negligence of Tenant, its agents, or employees, or of any other person
entering
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upon the Premises under express or implied invitation of Tenant, or where
such injuries are the result of the violation of the provisions of this
Lease by any of such persons.
XIII. RESTORATION OF PREMISES; INSURANCE
A. In the event the Premises or the Building is damaged by fire or other
insured casualty and insurance proceeds have been made available therefor
to Landlord in an amount sufficient to fully and completely repair such
damage, Landlord shall cause such repairs to be performed, provided such
repairs can, in Landlord's reasonable opinion, be completed within 120 days
after the occurrence of such damage without the payment of overtime or
other premiums. Until such repairs are completed, the rent shall be abated
in proportion to the part of the Premises which is unusable by Tenant in
the conduct of its business (but there shall be no abatement of rent by
reason of any portion of the Premises being unusable for a period equal to
one day or less). If repairs cannot, in the reasonable opinion of
Landlord, be completed within such 120 days, or if the available insurance
proceeds are insufficient to fully and completely perform the repairs,
Landlord may elect to make repairs to the extent of the available insurance
proceeds within a reasonable time and in such event, this Lease shall
continue in effect and the rent shall be abated in the manner provided
above (except that Tenant shall have the right to terminate this Lease upon
notice to Landlord which notice must be given to Landlord not later than
ten (10) days after Landlord notifies Tenant of such election). If
Landlord elects not to make such repairs which cannot be completed within
120 days or paid for with available insurance proceeds, then either party
may, by written notice to the other within thirty (30) days after such
election, cancel this Lease as of the date of such notice. A total
destruction of the Building shall automatically terminate this Lease.
Notwithstanding the foregoing, if any such damage is caused by the act,
omission or negligence of Tenant or any of Tenant's officers, employees or
agents, there will be no rent abatement on account of such damage and
Tenant shall be liable to Landlord for the cost of repair and restoration
to the extent not covered by insurance proceeds. Tenant shall make
available and deliver to Landlord all insurance proceeds payable to Tenant
under the insurance policies which Tenant is required to maintain pursuant
to this Lease for coverage with respect to leasehold improvements, in
excess of building standard, to the Premises and Building, except for those
items listed in Exhibit F attached hereto.
B. Except for Landlord's willful misconduct or gross negligence, there shall
be no abatement of rent and no liability of Landlord by reason of any
injury to or interference with Tenant's business or property arising from
the making of any repairs, alterations or improvements in or to any portion
of the Building or the Premises or in or to fixtures, appurtenances and
equipment therein. Tenant understands that Landlord will not carry
insurance of any kind on the furniture and furnishings of Tenant or on any
fixtures or equipment removable by Tenant under the provisions of this
Lease, and that Landlord shall not be obligated to repair any damage
thereto or replace the same. Landlord shall not be required to repair any
injury or damage by fire or other cause, or to make any repairs or
replacements of improvements installed in the Premises by or for Tenant.
C. Tenant agrees to carry and maintain, for the mutual benefit of Landlord and
Tenant, during the term of this Lease and any extension hereof,
comprehensive general liability insurance in connection with the Premises
and Building Area, including coverage for bodily injury, property damage,
personal injury (employee and contractual liability exclusions deleted),
products and completed operations, contractual liability, owner's
protective liability, host liquor legal liability and broad form property
damage with the following minimum limits of liability: Two Million Dollars
($2,000,000.00) each occurrence combined single limit for bodily injury,
property damage and personal injury; Two Million Dollars ($2,000,000.00)
aggregate for bodily injury and property damage for products and completed
operations. All such insurance shall be procured from a responsible
insurance company or companies authorized to do business in Colorado, and
shall be otherwise satisfactory to Landlord. All such policies shall name
Landlord as an additional insured, and shall provide that the same may not
be canceled or altered except upon thirty (30) days' prior written notice
to Landlord. All insurance maintained by Tenant shall be primary to any
insurance provided by Landlord. If Tenant obtains any general liability
insurance policy on a claims-made basis, Tenant shall provide continuous
liability coverage for claims arising during the entire term of this Lease,
regardless of when such claims are made, either by obtaining an endorsement
providing for an unlimited extended reporting period in the event such
policy is canceled or not renewed for any reason whatsoever or by obtaining
new coverage with a retroactive date the same as or earlier than the
expiration date of the canceled or expired policy. Tenant shall provide
certificate(s) of such insurance to Landlord upon request from time to time
and such certificate(s)
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shall disclose that such insurance names Landlord as an additional insured,
in addition to the other requirements set forth herein. The limits of such
insurance shall not, under any circumstances, limit the liability of Tenant
hereunder.
D. Landlord shall maintain fire and extended coverage insurance on the
Building (including Building standard leasehold improvements) in amounts
determined by Landlord, with the cost thereof to be included in Building
Expenses under Article III of this Lease. Tenant agrees to maintain fire
and extended coverage insurance on all leasehold improvements in excess of
building standard with Landlord named as additional insured and insurance
coverage with respect to the personal property of Tenant located within the
Building, all at replacement cost.
E. Landlord and Tenant each hereby waives any and all causes of action and
rights of recovery against the other, its officers, members, partners,
employees and agents, for any loss or damage occurring to the Premises or
the Building, or the improvements, fixtures, merchandise and personal
property of every kind located in and about the Building to the extent
required to be covered by insurance (whether or not such insurance is
actually maintained) regardless of cause or origin, including the
negligence of either party, its officers, members, partners, employees or
agents. To the extent necessary to effect the foregoing waiver of
subrogation, Landlord and Tenant agree to obtain from their respective
insurance carriers endorsements to all appropriate policies of insurance
waiving the right of subrogation of the insurance carriers.
F. Whenever Landlord has an opportunity to make an election under this
Article, Landlord must make such election within sixty (60) days of the
occurrence of the event which gives rise to such opportunity. Whenever
Landlord elects under this Article to repair the Premises, the Premises
shall be repaired to building standard condition; however, in such event,
Tenant shall have the right to cause Landlord to repair the Premises to the
condition which existed prior to the applicable damage, provided that
Tenant or Tenant's insurance carrier pays to Landlord, in advance, that
portion of the cost of such repair in excess of the cost to repair the
Premises to building standard condition.
XIV. CONDEMNATION
If any portion of the Premises or any portion of the Building which shall
render the Premises untenantable shall be taken by right of eminent domain or by
condemnation or shall be conveyed in lieu of any such taking, then this Lease,
at the option of either Landlord or Tenant exercised by either party giving
notice to the other of such termination at least fifteen (15) days prior to such
anticipated taking or conveyance, shall terminate and the rent shall be duly
apportioned as of the date of such taking or conveyance. Tenant thereupon shall
surrender to Landlord the Premises and all interest therein under this Lease,
and Landlord may reenter and take possession of the Premises or remove Tenant
therefrom. In the event of any such taking or conveyance, Landlord shall
receive the entire award or consideration of the lands and improvements so taken
and Tenant hereby assigns to Landlord all rights of Tenant, if any, to receive
any such award or consideration (except any separate award reimbursing Tenant
for moving or relocation expenses or specifically allocated to Tenant's property
or improvements to the Premises which were paid for by Tenant).
XV. DEFAULT
The occurrence of any one or more of the following events shall constitute
an event of default:
A. Tenant shall fail to pay in full, when due, any amount of rent or any other
amount payable hereunder, and such failure shall continue for five (5) days
after written notice from Landlord to Tenant;
B. Tenant shall vacate or abandon the Premises for a period in excess of
thirty (30) consecutive days without the consent of Landlord;
C. Tenant's interest in this Lease or the Premises or any part thereof shall
be taken upon execution or by other process of law directed against Tenant,
or shall be subject to any attachment at the instance of any creditor or
claimant against Tenant, and said attachment shall not be discharged or
disposed of within thirty (30) days after the levy thereof;
-8-
D. Tenant or any guarantor of Tenant's obligations hereunder shall file a
petition in bankruptcy or insolvency or for reorganization or arrangement
under the bankruptcy laws of the United States or under any insolvency act
of any state, or shall voluntarily take advantage of any such law or act by
answer or otherwise, or shall be dissolved or shall make a general
assignment for the benefit of creditors:
E. Involuntary proceedings under any such bankruptcy law or insolvency act or
for the dissolution of Tenant or any guarantor of Tenant's obligations
hereunder shall be instituted against Tenant or any guarantor of Tenant's
obligations hereunder, or a receiver or trustee shall be appointed for all
or substantially all of the property of Tenant or any guarantor of Tenant's
obligations hereunder, and such proceeding shall not be dismissed or such
receivership or trusteeship vacated within sixty (60) days after such
institution or appointment;
F. Tenant shall fail to comply with the provisions of Article VII or Article
VIII;
G. Tenant shall breach any of the other agreements, terms, covenants or
conditions hereof on Tenant's part to be performed, and such breach shall
continue for a period of thirty (30) days after notice thereof by Landlord
to Tenant; or
H. Tenant or any guarantor of Tenant's obligations hereunder shall be unable
to pay its debts as they become due.
Upon the occurrence of an event of default, Landlord shall have the right, at
its election, then or at any time thereafter, to the following remedies:
1. to give Tenant written notice of intention to terminate this Lease on
the date of such given notice or on any later date specified therein,
whereupon Tenant's right to possession of the Premises shall cease and
this Lease shall thereupon be terminated;
2. without demand or notice, to reenter and take possession of the
Premises or any part thereof, repossess the same, expel Tenant and
those claiming through or under Tenant, and remove the effects of both
or either, without being liable for prosecution thereof so long as due
care is used in such removal, without being deemed guilty of any
manner of trespass. Should Landlord elect to reenter as provided in
this Section 2, or should Landlord take possession pursuant to legal
proceedings or pursuant to any notice provided by law, Landlord shall,
without terminating this Lease, use its good faith efforts to relet
the Premises or any part thereof in Landlord's name for the account of
Tenant on such terms and conditions as Landlord then deems to be
reasonable in light of then current market conditions. Landlord shall
have the right to Lease any and all vacant space in the Building prior
to reletting the Premises. No such reentry or taking possession of
the Premises by Landlord shall be construed as an election on
Landlord's part to terminate this Lease unless a written notice of
such intention be given to Tenant. No notice from Landlord hereunder
or under a forcible entry and detainer statute or similar law shall
constitute an election by Landlord to terminate this Lease unless such
notice specifically so states. Landlord reserves the right following
any such reentry and/or reletting to exercise its right to terminate
this Lease by giving Tenant such written notice, in which event the
Lease will terminate as specified in said notice. Nothing in this
Article is intended to relieve Landlord of any obligation imposed by
Colorado law to mitigate damages in the event of a default by Tenant
hereunder.
In the event that Landlord does not elect to terminate this Lease as
permitted in Section 1 of this Article, but on the contrary, elects to take
possession as provided in Section 2 of this Article, Tenant shall pay to
Landlord (i) the rent, additional rent, Building Expenses and other sums as
herein provided, which would be payable hereunder if such repossession had not
occurred, less (ii) the net proceeds, if any, of any reletting of the Premises
after deducting all Landlord's expenses in connection with such reletting,
including, but without limitation, all repossession costs, brokerage
commissions, attorneys' fees, expenses of employees, alteration and repair costs
and expenses of preparation for such reletting. If, in connection with any
reletting, the new lease term extends beyond the existing term, or the premises
covered thereby include other premises not part of the Premises, a fair
apportionment of the rent received from such reletting and the expenses incurred
in connection therewith as provided aforesaid will be made in determining the
net proceeds from such reletting, and any rent concessions will be equally
apportioned
-9-
over the term of the new lease. Tenant shall pay such rent and other sums to
Landlord monthly on the day on which the rent would have been payable hereunder
if possession had not been retaken and Landlord shall be entitled to receive the
same from Tenant on each such day.
In the event, however, this Lease is terminated by Landlord on account of
an event of default, Landlord shall be entitled to recover forthwith against
Tenant as damages for loss of the bargain and not as a penalty, an aggregate sum
which, at the time of such termination of this Lease, represents the excess of
the aggregate of the rent and all other sums payable by Tenant hereunder that
would have accrued for the balance of the term over the aggregate rental value
of the Premises (such rental value to be computed on the basis of a tenant
paying not only a rent to Landlord for the use and occupancy of the Premises,
but also such other charges as are required to be paid by Tenant under the terms
of this Lease) for the balance of such term both discounted to present value at
the rate of eight percent (8%) per annum.
Suit or suits for the recovery of the amount and damages set forth
hereinabove (and for amounts owing by Tenant to Landlord under this Lease prior
to Landlord's election of remedies under this Article) may be brought by
Landlord, from time to time, at Landlord's election, and nothing herein shall be
deemed to require Landlord to await the date whereon this Lease or the term
hereof would have expired had there been no event of default. Each right and
remedy provided for in this Lease shall be cumulative and shall be in addition
to every other right or remedy provided for in this Lease or now or hereafter
existing at law or in equity or by statute or otherwise, and the exercise or
beginning of the exercise by Landlord of any one or more of the rights or
remedies provided for in this Lease or now or hereafter existing at law or in
equity or by statute or otherwise shall not preclude the simultaneous or later
exercise by Landlord of any or all other rights or remedies provided for in this
Lease or now or hereafter existing at law or in equity or by statute or
otherwise.
Nothing contained in this Article 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
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 damage or rent, referred to in any of the preceding provisions of this
Article.
Notwithstanding anything contained in this Article to the contrary, any
such proceeding or action involving bankruptcy, insolvency, reorganization,
arrangement, assignment for the benefit of creditors, or appointment of receiver
or trustee, as outlined in this Article, shall be considered to be an event of
default only when such proceeding, action or remedy shall be taken or brought by
or against the then holder of the leasehold estate under this Lease (which
holder must have been consented to by Landlord pursuant to Article VI).
XVI. LANDLORD'S DEFAULT
In the event Tenant alleges any default by Landlord hereunder, Tenant shall
deliver to Landlord written notice and Landlord shall have thirty (30) days
following receipt of such notice to cure such alleged default or, in the event
such alleged default cannot reasonably be cured within such 30-day period, to
commence action to cure such alleged default within a reasonable time. A copy
of such notice shall be sent by registered mail to any holder of a mortgage or
other encumbrance on the Building the name and address of which Tenant has been
notified in writing (by way of notice of assignment of rents and leases or
otherwise), and such holder shall also have the same time period to cure such
alleged default, which period shall begin to run thirty (30) days after the
expiration of any period allowed Landlord hereunder, or if such default cannot
be cured within that time, then such additional time as may be necessary to
effect such cure, so long as such holder commences such cure within such thirty
(30) day period and thereafter diligently pursues any remedies necessary or
appropriate for curing such default (including, but not limited to, commencement
of foreclosure proceedings), in which event this Lease shall not be terminated
while such remedies are being so diligently pursued.
Notwithstanding anything to the contrary expressly or impliedly contained
in this Lease, there shall be absolutely no personal liability of any person,
firm, partnership, association, or other entity who or which constitutes
Landlord, or of any shareholders, directors, officers, members, partners,
employees, or agents of Landlord, under or with respect to any of the terms,
covenants, or provisions of this Lease, or of any violation hereof, and Tenants
shall, subject to the rights of any mortgagees, fee owners and ground Lessors,
look solely to the interest of Landlord in the Building for the satisfaction of
each and every claim
-10-
and remedy of Tenant in the event of any default or violation whatever by
Landlord hereunder; such exculpation of personal liability is absolute and
without any exception or modification whatever, now or hereafter.
XVII. SURRENDER; HOLDING OVER; PERSONAL PROPERTY
A. Upon termination of this Lease, either by lapse of time or otherwise,
Tenant shall peaceably surrender the Premises in good condition and repair
except for ordinary wear and tear. Tenant shall remove Tenant's moveable
personal property from the Premises upon such termination and shall repair
all damages to the Premises caused by such removal.
B. No surrender of the Premises shall be effected by Landlord's acceptance of
the keys or of the rent or by any other means whatsoever without Landlord's
written acknowledgment of such acceptance as a surrender.
C. Should Tenant, with or without Landlord's written consent, hold over after
the termination of this Lease, Tenant shall become a Tenant from month-to-
month upon each and all of the terms herein provided. During such holding
over, Tenant shall pay base rent at the rate of 150% of the highest monthly
rate provided for herein and shall pay all other rent and other amounts
owing to Landlord hereunder. Such month-to-month tenancy shall continue
until either party gives to the other party notice at least one month prior
to the date of termination of its intention to terminate such tenancy.
D. All movable personal property of Tenant not removed from the Premises upon
the abandonment thereof or upon the termination of this Lease for any cause
whatsoever shall conclusively be deemed to have been abandoned and may be
appropriated, sold, stored, destroyed or otherwise disposed of by Landlord
without notice to Tenant or any other person and without obligation to
account therefor; and Tenant shall pay Landlord all expenses incurred in
connection with the disposition of such property in excess of any amount
received by Landlord in connection with such disposition.
E. During the term hereof, Tenant shall pay prior to delinquency all taxes
assessed against and levied upon fixtures, furnishings, equipment and all
other personal property of Tenant contained in the Premises, and Tenant
shall cause said fixtures, furnishings, equipment and other personal
property to be assessed and billed separately from the real property of
Landlord.
XVIII. COVENANT OF QUIET ENJOYMENT
Landlord covenants that Tenant shall be granted peaceable and quiet
enjoyment of the Premises during the term hereof so long as Tenant punctually
(i) pays the rent and all other amounts payable by Tenant hereunder and (ii)
performs all of Tenant's other covenants and obligations hereunder.
XIX. NOTICES
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given when personally delivered, or if mailed
by certified mail, upon first attempted delivery by the U.S. Postal Service,
return receipt requested or if delivered via Federal Express or similar
overnight courier service, when received, or if by facsimile, on a business day
if received before 5:00 p.m. local time on such business day, or on the next
business day, if received after 5:00 p.m. local time on a business day or any
time on a non-business day. Such notices or other communications shall be sent
to the following addresses, unless other addresses are subsequently specified in
writing:
LANDLORD: SFP Realty, Ltd., L.L.P.
0000 Xxxxxxxxx Xx.
Xxxxxxx, Xxxxxxxx 00000
ATTN: Xxx Xxxxx, Managing General Partner
-11-
TENANT: Colorado Business Bank of Boulder
0000 00xx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
ATTN: Xxxxxxx Xxxxxx, President
provided, however, that either party may change its address for purposes of
receipt of any such communication by giving ten (10) days' prior written notice
of such change to the other party in the manner prescribed above.
XX. MISCELLANEOUS
A. Subject to the provisions of Article VI, all agreements, covenants and
obligations of this Lease shall be binding upon, apply and inure to the
benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns.
B. This Lease contains the entire agreement between the parties and may be
amended only by subsequent written agreement. No promises or
representations, except as herein contained, have been made to Tenant
respecting the condition of the Premises or the manner of operating the
Building.
C. The captions of the various Articles of this Lease are for convenience only
and do not necessarily define, limit, describe or construe the contents of
such Articles.
D. The words "Landlord" and "Tenant" as used herein shall include the plural
as well as the singular. Words used herein in one gender shall include the
other genders, where applicable. If there be more than one Tenant, the
obligations hereunder imposed upon Tenant shall be joint and several.
E. Time is of the essence of this Lease and each and all of its provisions.
F. Submission of this instrument for examination or signature by Tenant does
not constitute a reservation of or option for Lease, and it is not
effective as a Lease or otherwise until execution and delivery by both
Landlord and Tenant.
G. In addition to late charges imposed pursuant to Article III, Section G of
this Lease, any amount due from Tenant to Landlord pursuant to this Lease
which is not paid when due shall bear interest at two percent per annum
above the prime interest rate of Norwest Bank of Denver, National
Association, or its successor from the due date until paid, but the payment
of such interest shall not excuse or cure any default by Tenant under this
Lease, and in no event shall such rate exceed the highest rate allowed by
law in Colorado.
H. Any provisions of this Lease which shall prove to be invalid, void or
illegal shall in no way affect, impair or invalidate any other provision
hereof and such other provisions shall remain in full force and effect.
I. This Lease shall be governed by and construed pursuant to the laws of the
State of Colorado.
J. If any demand is made or action is brought to enforce the provisions of
this Lease, the prevailing party shall be entitled to recover from the
other party all expenses, including reasonable attorneys' fees, incurred in
connection with such demand or action, including any appeal.
K. Landlord shall not be liable to Tenant for any default under this Lease
which occurs after the sale of the Building by Landlord, nor shall Tenant
bring any action against Landlord under this Lease after the sale of the
Building by Landlord and Tenant agrees that its rights with respect to any
such default shall be asserted against Landlord's successor in interest.
L. Landlord may, at its option, make any payment or perform any defaulted
covenant or agreement of Tenant contained herein, and any monies advanced
by Landlord for such purposes (including expenses and reasonable attorneys'
fees) shall be immediately due and payable by Tenant to Landlord.
-12-
M. Within ten (10) days of notice from the other party, each party agrees to
provide such other party with reasonable evidence (e.g., an opinion of
counsel or a corporate, partnership or limited liability company
resolution) that this Lease has been duly executed, authorized and
delivered by such party.
N. No failure by either party to insist upon the strict performance of any
agreement, term, covenant or condition hereof or to exercise any right or
remedy consequent upon a breach thereof, and no acceptance of full or
partial rent during the continuance of any such breach, shall constitute a
waiver of any such breach of such agreement, term, covenant or condition or
a relinquishment of the right to exercise such right or remedy. No
agreement, term, covenant or condition hereof to be performed or complied
with by either party, and no breach thereto, shall be waived, altered or
modified except by written instrument executed by the other party. No
waiver of any breach shall affect or alter this Lease, but each and every
agreement, term, covenant and condition hereof shall continue in full force
and effect with respect to any other then existing or subsequent breach
thereof. Notwithstanding any termination of this Lease the same shall
continue in force and effect as to any provisions hereof which require
observance or performance of Landlord or Tenant subsequent to termination.
O. Landlord shall have absolutely no personal liability with respect to any
provision of this Lease or any obligation or liability arising from this
Lease or in connection with this Lease in the event of a breach or default
of Landlord of any of its obligations. Tenant shall look solely to the
Landlord's equity in the Building at the time of the breach or default for
the satisfaction of any remedies of Tenant. Such exculpation of liability
shall be absolute and without any exception whatsoever.
XXI. CONSTRUCTION OF LEASEHOLD IMPROVEMENTS
Landlord shall make improvements and alterations to the Premises in
accordance with Exhibit E attached hereto. Any and all improvements or
additions now or in the future situated in or upon the Premises, whether
constructed or installed by, for or at the expense of Landlord or Tenant,
including improvements made to the Premises pursuant to Exhibit E attached
hereto, other than the items listed on the attached Exhibit F, are and shall
become a part of the Premises, and will become Landlord's property, without
compensation to Tenant, and Tenant shall have only a leasehold interest therein,
subject to all of the terms and conditions of the Lease. Tenant shall have the
option to remove from the Premises the personal property listed on Exhibit F
hereto, provided such items are removed within fourteen (14) days following
termination of this Lease. In the event Tenant fails to remove such personal
property within such fourteen (14) day period, all such personal property
remaining on the Premises shall become the property of Landlord, without
compensation to Tenant. Landlord may elect, at Landlord's option, that any of
the personal property set forth on Exhibit F and any alterations or improvements
made in connection therewith shall be removed by Tenant upon termination of this
Lease, and Tenant shall remove the same within fourteen (14) days following
termination hereof, shall repair any damages caused by such removal and shall
return the Premises to the condition existing prior to installation of such
personal property, alterations and improvements.
XXII. ADDITIONAL PROVISIONS
The additional provisions set forth in Exhibit B attached hereto constitute
part of this Lease.
IN WITNESS WHEREOF the parties hereto execute this Lease the day and year
first above written.
LANDLORD: SFP REALTY, LTD., L.L.P.
A COLORADO LIMITED LIABILITY PARTNERSHIP
By:/s/ Xxx Xxxxx
-------------
Xxx Xxxxx, Managing General Partner
-13-
TENANT: COLORADO BUSINESS BANK OF BOULDER, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx Xxxxxx
---------------------
Xxxxxxx Xxxxxx
Its: /s/ President
--------------------
President
-14-
EXHIBIT A
LEGAL DESCRIPTION
Legal Description: Xxx 00, (Xxxxxxx), Xxxxx 00, Xxxx Xxxxxxx, Xxxx of
Boulder, County of Boulder, State of Colorado,
according to the Lot Line Adjustment as recorded
January 11, 1991 on Film 1658 at Reception No.
1083138 in Plan File P-25 F-3 #10.
Location of the Building: 0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
A-1
EXHIBIT B
ADDITIONAL PROVISIONS
1. Rent. Upon commencement of the Lease, Tenant shall pay to Landlord as
----
base rent without offset or reduction in the sum of One Hundred Twenty-Three
Thousand Dollars ($123,000.00) per year, payable in equal monthly installments
of Ten Thousand Two Hundred Fifty Dollars ($10,250.00), on the first day of each
month (the "Base Rental Rate"). After the first year of the Primary Lease Term,
the Base Rental Rate shall be increased based upon the annual Consumer Price
Index for all Urban Consumers in the Boulder and Denver metropolitan area.
Notwithstanding the foregoing, the increase to the Base Rental Rate will not be
less than three percent (3%) nor more than six percent (6%) annually.
2. Options to Extend. Tenant shall have two (2) consecutive options
-----------------
("Option to Extend") to extend the Primary Lease Term for two (2) additional
five-year terms ("Extension Term"), at its discretion, and providing there
exists no event of default, as defined in the Lease, at the time for Tenant to
exercise such option to extend. In order to exercise each Option to Extend,
Tenant must deliver written notice to such effect (the "Extension Notice") to
Landlord not more than 540 days prior, nor less than 360 days prior to the date
upon which the Lease would expire. Failure by Tenant to exercise any one Option
to Extend shall terminate Tenant's right to exercise any subsequent Option to
Extend. All of the terms, conditions and provisions of this Lease shall remain
in full force and effect during each Extension Term except as follows: (i) the
Lease termination date shall be deemed to be changed to reflect the expiration
of each Option to Extend so exercised by Tenant and (ii) the Base Rental Rate
for each lease year of the Extension Term shall be the market value as
determined by the Landlord in its reasonable discretion, and shall be subject to
adjustment as described in Exhibit B, Paragraph 1 above.
3. Parking. Tenant shall have exclusive use of the parking spaces located
-------
on the north side of the Building. Landlord and Tenant shall execute a mutually
agreeable parking lease ("Parking Lease") for not less than four (4) and not
more than eight (8) parking spaces on property adjacent to the Building owned by
Landlord. Such leased adjacent parking shall be included in the Building Area
(defined in Article III, Section C of the Lease). The Parking Lease shall be
for a period of ten (10) years with a base rate of Twenty-Five Dollars ($25.00)
per month per space (the "Parking Base Rate"). The Parking Base Rate shall be
increased annually under the same terms as the Base Rental Rate. Provided,
however, that in consideration of this Lease, Landlord shall waive all Parking
Lease payments for the first 24 months of this Lease. Thereafter, the Parking
Base Rate shall be increased annually as provided herein for years three (3)
through five (5) of the Parking Lease. Beginning in year six (6) of the Parking
Lease, the Parking Base Rate shall be the market value as determined by Landlord
in its reasonable discretion and shall be subject to annual adjustment under the
same terms as the Base Rental Rate. Contingent upon Tenant's exercise of each
Option to Extend, Tenant shall have two (2) consecutive five (5) year options to
renew the Parking Lease at fair market value to be determined in the Landlord's
reasonable discretion. Failure by Tenant to exercise any one Option to Extend
shall terminate Tenant's right to renew the Parking Lease.
4. First Option to Purchase. If Landlord decides during the Lease Term
------------------------
and any extensions thereof to market and sell the Building as a stand alone
building, then Tenant shall be granted an exclusive negotiation period of forty-
five (45) days within which to negotiate with the Landlord for the purchase of
the Building prior to Landlord marketing the Building to the general public.
5. Building Name. The Building shall be renamed and shall become the
-------------
"Colorado Business Bank Building" or any successor name thereto and shall remain
so for the primary term of the Lease and any extension thereto.
6. Miscellaneous. This Lease shall be conditioned upon approval of
-------------
Tenant's use of the Premises for a business bank by the City of Boulder Planning
Department (the "City"). Should said use be denied by the City, this Lease
shall immediately terminate. In the event the City has not approved Tenant"s
use of the Premises on or before January 1, 1999, Landlord shall have the right,
at its option, to terminate this Lease upon 72 hours written notice to Tenant.
During the City's use approval process and prior to final approval, Landlord may
continue to market the Premises for lease to other parties. If a bona fide
acceptable lease proposal is received by Landlord from a third party,
B-1
Landlord will notify Tenant of such proposal and Tenant shall have 72 hours from
receipt of such proposal to exercise either of the following options:
a) Terminate this Lease, provided, however, such termination shall
not be effective unless and until Landlord enters into a binding
lease agreement with such third party; or
b) Commence payment of the Base Rental Rate, Building Expenses and
all other sums due hereunder on or before November 1, 1998.
B-2
EXHIBIT C
TENANT'S CERTIFICATE
The undersigned as Tenant under that certain lease dated
-----------------
made with and Landlord (the "Lease"),
--------------------------------------
hereby certifies as follows:
(1) That the undersigned has entered into occupancy of the premises
described in the Lease;
(2) That the Lease is in full force and effect and has not been
assigned, modified, supplemented or amended in any way, except
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------;
(3) That the Lease represents the entire agreement between the
parties;
(4) That the commencement date of the Lease is ;
----------------
(5) That there is an unexpired term under the Lease of
---------------
years;
(6) That all conditions of said work to be performed by Landlord and
necessary to the enforceability of the Lease have been satisfied;
(7) That there are no defaults on the part of the Landlord under the
Lease;
(8) That no rents have been prepaid other than as provided in the
Lease;
(9) That on this date there are no existing defenses or offsets which
the undersigned has against the enforcement of the Lease by Landlord; and
(10) That the construction to be done by Landlord pursuant to Exhibit
"E" attached to the Lease has been completed.
The undersigned hereby agrees:
(1) To disclaim all right, title or interest in said premises except
the rights granted by the Lease;
(2) To send a copy of any notice or demand given or made to the
Landlord pursuant to the provision of the Lease, by registered mail to the owner
and holder of any mortgage on the first mortgage on the demised premises, or its
assignee upon being notified in writing of such mortgage's or assignee's name
and address, and;
(3) To give to the holder of said mortgage or its assignee the same
right as the Landlord has to cure any default complained of in said notice or
demand.
EXECUTED this day of 19 .
------- --------------------- --
TENANT:
By
--------------------------------
(Print Name)
----------------------
(Print Title)
---------------------
C-1
EXHIBIT D
RULES AND REGULATIONS
1. At all times during the term of this Lease, Landlord shall have the right
by itself, its agents and employees, to enter into and upon the Premises
during reasonable business hours for the purpose of examining and
inspecting the same and determining whether Tenant shall have complied with
its obligations under the Lease, including the Rules and Regulations.
2. Tenant shall not make or permit any noise or odor that is objectionable to
the public or to other occupants of the Building to emanate from the
Premises, shall not create or maintain a nuisance thereon and shall not do
anything tending to injure the reputation of the Building or the Premises.
3. Tenant shall not place or permit any radio antennae, loud speakers, sound
amplifiers, or similar devices on the roof or outside of the Building.
4. The sidewalks, entrances, passages, elevators, vestibules, stairways,
corridors and halls may not be obstructed or used for any purpose other
than ingress or egress to and from the Premises.
5. Landlord may retain a passkey to the Premises. Tenant shall not alter any
lock or install a new lock on any door of the Premises without the prior
written consent of Landlord; if such consent is given, Tenant shall provide
Landlord with an additional key for the use of Landlord.
6. Upon leaving the Premises, Tenant shall close and lock all windows and
doors of the Premises, and shall shut off all water faucets and major
electrical apparatus located within the Premises.
7. Tenant shall not place any sign upon the Premises without Landlord's prior
written consent, which consent shall not be unreasonably withheld.
Landlord reserves the right to reasonably designate all contractors for
sign painting and lettering.
8. Tenant shall, upon termination of the Lease or of Tenant's possession,
surrender all keys of the Premises to Landlord at the place then fixed for
the payment of rent and shall provide Landlord with all combinations and
keys for any locks, safes, cabinets and vaults remaining in the Premises.
The failure of Landlord to enforce any of the Rules and Regulations shall
not be deemed a waiver of any of such Rules and Regulations. Landlord shall not
be liable to Tenant for violation of any of the Rules and Regulations or the
breach of any covenant or condition in any lease by any other tenant in the
Building, if any.
No act or thing done or omitted to be done by Landlord or Landlord's agent
during the term of the Lease to enforce the Rules and Regulations shall
constitute an eviction of Tenant by Landlord, nor shall it be deemed an
acceptance or surrender of said Premises; no agreement to accept such surrender
shall be valid unless in writing signed by Landlord.
D-1
EXHIBIT E
LEASEHOLD IMPROVEMENTS AGREEMENT
RECITALS
1. This Leasehold Improvements Agreement (this "Agreement") is attached to
and forms a part of the certain Office Lease dated September 25, 1998, pursuant
to which Landlord has leased to tenant the building (the "Premises") located at
0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000.
2. Tenant desires to have Landlord make improvements (the "Improvements")
to the Premises, prior to occupancy, and Landlord desires to make such
Improvements upon the terms and conditions contained in this Agreement.
AGREEMENT
A. Definitions. The following terms have the meanings indicated:
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(1) "Amount Financed" shall mean the amount of the loan which
Landlord is able to obtain for purposes of financing the
Landlord's Cost of Improvements (defined below), as set forth in
Paragraph B(1) hereof.
(2) "Change Order" shall mean any change, modification, or addition
to the Final Space Plan (defined below) or Working Drawings
(defined below) after Landlord has approved the same.
(3) "Construction Schedule" means a schedule depicting the relative
time frames for various activities related to the construction of
the Improvements in the Premises.
(4) "Landlord's Cost of Improvements" means and shall include the
following, provided, however, such cost shall in no event exceed
$375,000.00 and may be adjusted in accordance with Paragraph B(1)
hereof:
(a) All contractor and construction manager costs and fees;
(b) All permits and taxes;
(c) All costs of constructing and installing the Improvements;
(d) The cost of the Landlord's overhead for coordination and
administration at a rate of 5% of the total cost to the
Landlord of the above; and
(e) All costs relating to leasing fees or commissions.
(5) "Tenant's Cost of Improvements" means and shall include the
following:
(a) All architectural and engineering fees and expenses;
(b) All costs of Tenant-initiated changes to the Final Space
Plan or Working Drawings after Tenant's approval; and
(c) All costs of Tenant-initiated change orders,
modifications, or additions to the Improvements after
Tenant's approval of the Working Drawings.
(6) "Estimated Construction Cost" means a preliminary estimate of
the Landlord's Cost of Improvements.
(7) "Final Space Plan" means a drawing of the Premises clearly
showing the layout and relationship of all departments and
offices, depicting partitions, door locations, types of
electrical, data and telephone outlets, delineation of
furniture and equipment, and all other general specifications
for the Improvements. The Final Space Plan will be preceded by
preliminary
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space plans.
(8) "Improvements" means:
(a) The development of all space plans and working drawings,
including supporting engineering studies, structural
design or analysis, lighting or acoustical evaluations,
and all other information as determined by Landlord's
architect; and
(b) All work, alterations, improvements and installations to
be performed and constructed by Landlord pursuant to this
Agreement to create the details and partitioning shown on
the Working Drawings. The Improvements will include
finished ceilings, walls, and floor surfaces, as well as
complete HVAC, lighting, electrical, telephone wiring,
computer system wiring, and fire protection systems. The
Improvements will NOT include personal property items,
such as decorator items or services, art work, plants,
furniture, equipment, or other fixtures not permanently
affixed to the Premises or installation of a vault or
automatic teller machine, furniture for teller stations,
wiring for special equipment necessary for bank
operations.
(9) "Landlord's Cost Proposal" means a final estimate of the
Landlord's Cost of Improvements as depicted on the Working
Drawings, excluding all architectural, engineering, contractor,
and other costs to be paid by Tenant pursuant to this
Agreement.
(9) "Working Drawings" means the construction documents detailing
the Improvements and conforming to codes, complete in form and
content and containing sufficient information and detail to
allow for competitive bidding or negotiated pricing by
contractors selected and engaged by Landlord.
B. Landlord's Obligations.
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(1) Colorado Business Bank agrees to loan landlord $375,000 to be
used towards Landlord's cost of Improvements on commercially
reasonably terms.
(2) Landlord will proceed to complete the Improvements according to
this Agreement and tender possession of the Premises to Tenant
upon substantial completion of the Improvements to the extent
that only minor construction details, which would not
materially interfere with Tenant's use and enjoyment of the
Premises, require completion or correction. Tenant will accept
the Premises when Landlord tenders possession, provided that
the Improvements have been substantially completed as described
above. Landlord and Tenant agree that all alterations,
improvements and additions made to the Premises according to
this Agreement, whether paid for by Landlord or Tenant, will,
without compensation to Tenant, become Landlord's property upon
installation and will remain Landlord's property at the
expiration or earlier termination of the term of the Lease,
unless otherwise expressly provided herein.
C. Tenant's Obligations. Tenant will promptly pay all Tenant's Cost of
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Improvements within thirty (30) days of receipt of an invoice for same. Tenant
shall cooperate with Landlord in all respects in the construction of the
Improvements.
D. Project Design and Construction. All work will be performed by
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architects, designers and contractors selected and engaged by Landlord.
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E. Landlord's Approval. Landlord, in its sole discretion, may withhold
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its approval of the Final Space Plan, Working Drawings, or any change order
that:
(1) Exceeds or adversely affects the structural integrity of the
Building, or any part of the heating, ventilating, air
conditioning, plumbing, mechanical, electrical, communication,
or other systems of the Building;
(2) Is not approved by the holder of any mortgage or deed of trust
encumbering the Building at the time the work is proposed;
(3) Would not be approved by a prudent owner of property similar to
the Building;
(4) Violates any agreement that affects the Building or binds
Landlord;
(5) Landlord reasonably believes will materially increase the cost
of operation or maintenance of any of the systems of the
Building;
(6) Landlord reasonably believes will materially reduce the market
value of the Premises or the Building at the end of the term;
(7) Does not conform to applicable building code or is not approved
by any governmental, quasi-governmental, or utility authority
with jurisdiction over the Premises.
(8) Would cause the Landlord's Cost of Improvements to exceed the
Amount Financed.
F. Schedule of Improvement Activities.
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(1) Tenant shall submit a "Final Space Plan" to Landlord as part of
this Lease. Within five (5) days after receipt of the Final
Space Plan, Landlord will promptly cause to be prepared and
delivered to Tenant the written Estimated Construction Cost.
In the event the Estimated Construction Cost exceeds the Amount
Financed, Landlord may modify the Final Space Plan in its
reasonable discretion in order to assure that the Estimated
Construction Cost will not exceed the Amount Financed. Landlord
will submit to Tenant said modifications for Tenant's approval,
which shall not be unreasonably withheld (the "Revised Space
Plan").
(2) Upon approval of the Estimated Construction Cost, Landlord will
cause to be prepared and delivered to Tenant the Working
Drawings, finish schedules, the Construction Schedule, and the
Landlord's Cost Proposal for the Improvements in accordance
with the Final or Revised Space Plan. If the Landlord's Cost
Proposal is less than the Estimated Construction Cost, Landlord
will commence construction of the Improvements to the Premises.
If the Landlord's Cost Proposal is more than the Estimated
Construction Cost, Landlord will so notify Tenant in writing
and Tenant will either (1) agree in writing to pay the amount
by which the Landlord's Cost Proposal exceeds the Estimated
Construction Cost or (2) agree to reasonable revisions to the
Working Drawings in order to assure that Landlord's Cost
Proposal does not exceed the Amount Financed. Tenant will give
its immediate attention to the Working Drawings and Landlord's
Cost Proposal approval process and respond to Landlord within 3
business days after submissions are made to it.
(3) Following approval of the Working Drawings and the Landlord
Cost Proposal, Landlord will cause application to be made to
the appropriate governmental authorities for necessary
approvals and building permits. Upon receipt of the necessary
approvals and permits, Landlord will begin
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construction of the Improvements.
G. Change Orders. Tenant may seek changes to the Improvements during
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construction only by written request to Landlord on a form approved by Landlord.
All such changes will be subject to Landlord's prior written approval in
accordance with paragraph D. Prior to commencing any change, Landlord will
prepare and deliver to Tenant, for Tenant's approval, a change order setting
forth the total cost of such change, which will include associated
architectural, engineering, construction contractor's costs and fees, completion
schedule changes, and the cost of Landlord's overhead. If Tenant fails to
approve such change order within 3 business days after delivery by Landlord,
Tenant will be deemed to have withdrawn the proposed change and Landlord will
not proceed to perform the change. Upon Landlord's receipt of Tenant's
approval, Landlord will proceed with the change. Tenant shall bear the
additional cost of any change that would have the effect of increasing any line
item in Landlord's Cost Proposal.
H. Completion and Commencement Date. Tenant's obligation for payment of
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rent pursuant to the Lease will commence upon issuance of a certificate of
occupancy for the Building by the City of Boulder or January 1, 1999, whichever
is later, provided, however, the payment of rent will not be delayed by a delay
of substantial completion due to Tenant. The following are some examples of
delays that will not affect the date on which rent is to commence under the
Lease:
(1) Late submissions of Information;
(2) Change orders requested by Tenant;
(3) Delays in obtaining unusual or non-building standard
construction materials requested by Tenant;
(4) Tenant's failure to approve timely any item requiring Tenant's
approval; and
(5) Delays by Tenant according to paragraph F hereof.
I. Condition of the Premises.
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(1) Upon Landlord's determination and written notice to Tenant
that the Improvements are substantially complete, Tenant will
conduct a walkthrough inspection of the Premises with Landlord
and prepare a punchlist of items needing additional work by
Landlord. Other than the items specified in the punchlist and
Latent Defects (as defined below), by taking possession of the
Premises, Tenant will be deemed to have accepted the Premises
in their condition on the date of delivery of possession and
to have acknowledged that Landlord has installed the
Improvements as required by this Agreement and that there are
no items needing additional work or repair. The punchlist will
not include any damage to the Premises caused by Tenant's
move-in or early access, if permitted. Damage caused by Tenant
will be repaired or corrected by Landlord at Tenant's expense.
Tenant acknowledges that neither Landlord nor its agents or
employees have made any representations or warranties as to the suitability or
fitness of the Premises for the conduct of Tenant's business or for any other
purpose, nor has Landlord or its agents or employees agreed to undertake any
alterations or construct any improvements to the Premises except as expressly
provided in the Lease and this Agreement. If Tenant fails to submit a punchlist
to Landlord within three (3) business days following Tenant's receipt of notice
from Landlord that the Improvements are substantially complete, it will be
deemed that there are no items needing additional work or repair. Landlord's
contractor will complete all reasonable punch-list items within 30 days after
the walk-through inspection or as soon as practicable after such walk-through.
(2) A "Latent Defect" is a defect in the condition of the Premises,
caused by Landlord's failure to construct the Improvements in a
good and workmanlike manner and in accordance with the Working
Drawings, which would not ordinarily be observed during a walk-
through inspection. If Tenant
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notifies Landlord of a Latent Defect within one year following
the date of this Agreement, then Landlord, at its expense, will
repair the latent defect as soon as practicable. Except as set
forth in this paragraph H, Landlord will have no obligation or
liability to Tenant for Latent Defects.
(3) No approval by Landlord's architect or engineer of any
drawings, plans, or specifications which are prepared in
connection with construction of the Improvements in the
Premises will constitute a representation or warranty by
Landlord as to the adequacy or sufficiency of such drawings,
plans, or specifications, or the Improvements to which they
relate, for any use, purpose, or condition, but such approval
will merely be the consent of Landlord to the construction or
installation of the Improvements in the Premises according to
such drawings, plans, or specifications.
EXECUTED to be effective as of the date of the Amendment to which this
Agreement is attached.
LANDLORD: SFP REALTY, LTD., L.L.P.
A COLORADO LIMITED LIABILITY PARTNERSHIP
By: /s/ Xxx Xxxxx
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Xxx Xxxxx, Managing General Partner
TENANT: COLORADO BUSINESS BANK OF BOULDER, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
Its: President
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President
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EXHIBIT F
TENANT'S PROPERTY, REMOVAL AT END OF LEASE TERM
1. The following equipment and provisions may be added to the Premises
at Tenant's sole cost and expense and may be removed at the end of this Lease
pursuant to the terms and conditions set forth for removal contained in this
Lease:
(a) a vault;
(b) an ATM machine;
(c) a teller station(s)
(d) together with all other non-fixture items, paid for, installed
or supplied by Tenant.
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