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EXHIBIT 10.33
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_____________________________________
LEASE AGREEMENT
_____________________________________
Property Located at
0000 Xxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000
Between
Technical Building Company ("Landlord")
and
American Coin Merchandising, Inc. ("Tenant")
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INDEX
Page
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1. PROPERTY - LEASED PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3. OPTION TO EXTEND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
4. RENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(a) Base Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(b) Annual Escalation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(c) Minimum Rent Increase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5. SECURITY DEPOSIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
6. TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
7. UTILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
8. MAINTENANCE AND REPAIRS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(a) Landlord Direct Maintenance Responsibilities . . . . . . . . . . . . . . . . . . . . . 4
(b) Tenant Direct Maintenance Responsibilities . . . . . . . . . . . . . . . . . . . . . . 4
9. HOLDING OVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
10. MODIFICATIONS OR EXTENSIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
11. ALTERATION - CHANGES AND ADDITIONS - RESPONSIBILITY . . . . . . . . . . . . . . . . . . . . . 5
12. APPROVAL OF CHANGES - SIGNS - LIENS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
13. USE OF PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
14. PROTECTIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
15. LIABILITY FOR OVERLOAD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
16. INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
17. FIRE REGULATIONS - RESPONSIBILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
18. ASSIGNMENT OR SUBLETTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
19. REPLACEMENT OF BUILDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
20. INSPECTION BY LANDLORD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
21. DEFAULT - REMEDIES OF LANDLORD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
22. DEFAULT AND ABANDONMENT - REMEDIES OF LANDLORD . . . . . . . . . . . . . . . . . . . . . . . . 10
23. BANKRUPTCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
24. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
25. WARRANTY OF TITLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
26. ACCESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
27. DEVELOPMENT OF PROPERTY - RIGHTS OF LANDLORD . . . . . . . . . . . . . . . . . . . . . . . . . 11
28. EMINENT DOMAIN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
29. SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
30. INTEREST ON PAST DUE OBLIGATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
31. LATE CHARGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
32. MEMORANDUM OF LEASE - RECORDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
33. ENVIRONMENTAL MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(a) Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(1) Hazardous Material . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(2) Environmental Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(3) Environmental Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(b) Tenant's Obligation to Indemnify, Defend and Hold Harmless . . . . . . . . . . . . . . 14
(c) Notification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(d) Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(1) No Hazardous Material on Premises . . . . . . . . . . . . . . . . . . . . . . 15
(2) No Violations of Environmental Requirements . . . . . . . . . . . . . . . . . 15
(e) Right to Inspect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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(f) Right to Remediate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(g) Obligation to Remediate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(h) Landlord's Obligation to Indemnify, Defend and Hold Harmless . . . . . . . . . . . . . 16
34. NO WAIVER OF BREACH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
35. NOTICE PROCEDURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
36. CONTROLLING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
37. BINDING UPON SUCCESSORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
38. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
39. ADDITIONAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(a) Parking; Resurfacing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(b) Option on Adjacent Space . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(c) Condition of Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(d) Attorney Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(e) Approval of Tenant Finish . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
40. DEFAULT BY LANDLORD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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LEASE AGREEMENT
THIS LEASE AGREEMENT is dated effective as of January 28, 1997,
between TECHNICAL BUILDING COMPANY ("Landlord") and AMERICAN COIN
MERCHANDISING, INC., d/b/a SUGARLOAF CREATIONS, INC. ("Tenant").
W I T N E S S E T H:
In consideration of the covenants, terms, conditions, agreements, and
payments as hereinafter set forth, the parties hereto covenant and agree as
follows:
I. PROPERTY - LEASED PREMISES. Upon the terms and conditions set
forth herein, Landlord hereby leases unto Tenant and Tenant leases from
Landlord that certain commercial / office / warehouse property located at 0000
Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000, as schematically represented on "Exhibit A"
attached hereto and incorporated herein by reference, consisting of
approximately 18,176 square feet (measured to the outside of exterior walls,
the center of interior perimeter walls, exclusive of mechanical or plumbing
chases, inclusive of the first floor stair well and staircase footprint and
exclusive of the second floor stair well and footprint) (hereafter referred to
as the "Premises").
2. TERM. The term of this Lease shall commence on the later to
occur of (i) at 12:01 a.m. on January 15, 1997, (ii) five (5) business days
following the vacation of the Premises by Xxxx Industries, Inc. (if Xxxx
Industries has not vacated the premises by January 15, 1997), or (iii) receipt
of the City of Boulder building permit discussed at Section 11.(a) below (the
"Lease Commencement Date"). Tenant acknowledges that the Premises are as of
the date of this Lease occupied by Xxxx, which has indicated to Landlord that
it will vacate the Premises and relocate to space adjoining the Premises on or
before January 15, 1997. Landlord and Tenant acknowledge that this Lease shall
terminate without liability to either party if Xxxx should fail to vacate the
Premises on or before February 15, 1997. Unless terminated as herein provided
for, or extended pursuant to Section 0 of this Lease, this Lease shall end five
years after the Lease Commencement Date.
3. OPTION TO EXTEND. Upon full and complete performance by
Tenant of all the terms, covenants, and conditions herein contained and payment
of all rent due under the terms hereof, Tenant shall be given the option to
renew this Lease for an additional term of five (5) years, on the terms and
conditions set forth in this Lease, except that the base monthly rent shall be
adjusted as set forth below. In the event Tenant desires to exercise said
option, Tenant shall give written notice of such fact to Landlord not less than
six (6) months prior to the expiration of the primary term of this Lease. Upon
Landlord's receipt of Tenant's election to extend the term for an additional
five year period, Landlord and Tenant shall negotiate in good
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faith regarding the base rent for such extended term. If the parties reach
agreement on such revised base rent for the extended term, they shall execute
an amendment to this Lease stating the base rent through the extended term. If
Landlord and Tenant are unable to agree on the base rent for the extended term
within thirty (30) days of Tenant's written election to extend the Lease term,
then at the written election of either Landlord or Tenant, the parties shall
within ten (10) business days of such election select a mutually acceptable
appraiser (skilled in the appraisal of Boulder commercial office/industrial
real estate) to determine the then fair market base monthly gross rent for the
Premises. The appraiser so selected shall render such appraisal with thirty
(30) days of selection, which appraisal shall be binding on the parties, and
with the cost of such appraisal to be split equally between the parties. If
Landlord and Tenant cannot agree upon a mutually acceptable appraiser within
the ten (10) business day period following election to submit the matter to
appraisal, then Tenant's election to extend the term shall be of no effect and
this Lease shall expire at the end of the initial term.
The base monthly rent as determined under this Section 0 shall be
subject to adjustment as provided in Section 0 below, and shall be payable as
herein provided for. In the event of an extended term, any funds retained by
Landlord at the end of the initial term as herein provided for shall continue
to be so held subject to the same terms and conditions.
4. RENT. Subject to suspension as set forth in Section 0(a)
below, Tenant shall pay the base rent including any escalation provided for in
Section 0, at the address set forth in Section 0 of this Lease, without prior
notice or demand, on the Lease Commencement Date (prorated for any partial
month) and on or before the first day of each successive calendar month during
the Lease term. Tenant shall pay to Landlord, at the address of Landlord as
herein set forth, the following as rent for the Premises:
(a) Base Rent. The base rent for the initial five (5)
year term hereof shall be $677,056.00, payable in monthly installments (base
monthly rent of $11,284.27) in advance on the first day of each month during
the term hereof. The base rent for the extended term (if this Lease is
extended under Section 0 above) shall be the aggregate base monthly rent for
such extended term.
(b) Annual Escalation. Subject to the minimum rent
increase per Section 0 below, as of each annual anniversary date of this Lease,
the base monthly rent due under the terms hereof shall be increased by an
amount equal to the amount arrived at by multiplying the percentage increase in
(i) the Cost of Living Index for "All Urban Consumers, All Items,
Boulder/Denver" (the "Index") for the six-month period (January-June) preceding
the anniversary date, from (ii) the Index for the six-month period,
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January-June 1996, times the then payable monthly rent. The increased monthly
rent as so determined shall commence as of the first day of the month
immediately following the annual anniversary date and shall continue until
readjusted as herein provided. In the event of an extended term pursuant to
Section 0 above, the percentage increase in the "Index" shall be measured from
the Index for the six-month period, January-June, 2001.
(c) Minimum Rent Increase. Notwithstanding any provision
herein contained, the base monthly rent due under the terms hereof shall at no
time be less than, as to the initial term, the original base rent provided for
in Section 0 above and as to an extended term, the base rent determined under
Section 0 above, and the annual adjustment in the base monthly rent as set
forth in Section 0 above shall at no time be less than four percent (4%) per
year over the previous year's base monthly rent.
5. SECURITY DEPOSIT. Upon execution of this Lease, Tenant shall
deposit with Landlord the sum of $10,000 as a security deposit. This security
deposit shall be held by Landlord in an interest-bearing account as security
for the faithful performance of Tenant of all the terms, covenants and
conditions of this Lease to be kept and performed by Tenant during the Lease
term. Any accrued interest shall be paid to Tenant at each anniversary of this
Lease by applying such amount as a credit toward the next payment of base rent
under this Lease. If Tenant defaults with respect to any provision of this
Lease, including, but not limited to the provisions relating to the payment of
rent or any other sum in default, or for the payment of any 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, Landlord shall be entitled to satisfy any
monetary damage or expense suffered thereby from the security deposit. If
Tenant fully and faithfully performs every provision of this Lease to be
performed by it, the security deposit or any balance remaining and all accrued
interest shall be returned to Tenant on termination of the Lease.
6. TAXES.
(a) Landlord shall pay all general real estate taxes
which are assessed, imposed or become a lien upon the Premises.
(b) Tenant covenants and agrees to pay, or cause to be
paid, before any fine, penalty, interest or cost may be added thereto, all
license and franchise taxes of Tenant.
(1) Tenant shall pay prior to delinquency all
taxes assessed against and levied upon trade fixtures, furnishings,
equipment and all other personal property of Tenant contained in the
Premises or elsewhere.
(2) If any of Tenant's personal property shall be
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assessed with Landlord's real property, Tenant shall pay to Landlord
the taxes attributable to Tenant's personal property within ten (10)
business days after receipt of written statement setting forth the
taxes applicable to Tenant's property.
7. UTILITIES. Utility services to the Premises, including gas,
electricity and telecommunications, shall be contracted directly in the name of
Tenant, and Tenant shall be solely responsible for the direct payment of all
utility fees and service charges for such utilities. Landlord, however, shall
contract for and pay for the cost of water and sewer service to the Premises.
8. MAINTENANCE AND REPAIRS.
(a) Landlord Direct Maintenance Responsibilities.
Landlord shall be responsible for and shall pay for all maintenance and repairs
to the following elements of the Premises: roof, the exterior walls, the
common areas, the equipment used exclusively for the common areas, the heating,
air conditioning, electrical, plumbing and non-Tenant installed building
ventilation systems, and items of a purely structural nature ("Landlord's
Elements"), unless caused in part or in whole by the act, neglect, fault or
omission of any duty by Tenant, its agents, servants, employees, and invitees,
in which case Tenant shall at Tenant's sole cost and expense, make such repairs
and replacements as are necessary to maintain such structural portions in a
good condition. Landlord shall also be responsible for maintenance and repairs
to the parking lot and landscaping adjacent to the Premises and for snow and
ice removal. There shall be no abatement of rent or liability to Tenant on
account of interference with Tenant's business with respect to any
improvements, alterations or repairs made by Landlord to the Premises in
connection with its duties under this Section 0. Tenant may give written
notice to Landlord of Landlord's failure to perform its required duties under
this Section 0. If after thirty (30) days' written notice, Landlord fails to
commence such necessary maintenance and repairs and diligently pursue
completion of same, Tenant may elect to effect the maintenance and repairs in a
reasonable manner and the reasonable costs of the maintenance and/or repairs
shall be reimbursed by Landlord within five (5) working days of Landlord's
receipt from Tenant of a statement of such costs. If, however, Landlord's
failure to repair, replace or maintain Landlord's Elements to which a notice of
failure to perform has been delivered by Tenant, unreasonably interferes with
Tenant's business, then such costs of maintenance or repairs may be applied by
Tenant to reduce the base rent due to Landlord for the following month.
(b) Tenant Direct Maintenance Responsibilities. Subject
to the provisions of Section 0 above, Tenant shall at its expense keep in good
order, condition and repair the Premises and every part thereof, including all
lighting facilities and
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equipment within the Premises, fixtures, built-ins, interior walls and interior
surface of exterior walls, floor coverings, ceilings, windows, doors and plate
glass located within the Premises. Tenant agrees, in its normal course of
business, not to do anything to damage or deteriorate the structure, plumbing,
electrical, heating and ventilation systems, fixtures, windows, doors and
interior of the Premises (normal wear and tear excluded), and agrees to return
the Premises at lease termination in substantially as good condition as when
received (normal wear and tear excluded). Landlord may give written notice to
Tenant of Tenant's failure to perform its required duties under this Section 0.
If after thirty (30) days' written notice, Tenant fails to diligently perform
and complete its required duties under Section 0, Landlord may elect to perform
such duties and the reasonable costs incurred shall constitute additional rent
due and payable to Landlord within five (5) business days after such amounts
are disclosed to Tenant.
9. HOLDING OVER. If, after expiration of the term of this Lease,
Tenant shall remain in possession of the Premises and continue to pay rent
without a written agreement as to such possession, then Tenant shall be deemed
a month-to-month Tenant and the rent rate during such holdover tenancy shall be
equivalent to the monthly rent paid for the last month of tenancy under this
Lease.
10. MODIFICATIONS OR EXTENSIONS. No holding over by Tenant shall
operate to renew or extend this Lease without the written consent of Landlord
given in conformity with requirements of any provision of the laws of the State
of Colorado which may relate to such renewal or extension. No modification of
this Lease shall be binding unless endorsed hereon or attached hereto and
signed by the respective parties.
11. ALTERATION - CHANGES AND ADDITIONS - RESPONSIBILITY.
(a) Tenant shall not make any alterations, additions, or
improvements to the exterior, roof or structural elements of the Premises
(including, but not limited to, painting and signs) without Landlord's prior
written consent, which may not be unreasonably withheld or delayed. Tenant
will be making internal alterations and improvements to the Premises, at
Tenant's expense, and subject to Landlord's prior written approval (not to be
unreasonably withheld) commencing with the Lease Commencement Date ("Tenant
Finish"). All work done by Tenant shall conform to appropriate federal, city,
county and state building codes and health standards and Tenant shall be
responsible for obtaining and paying for building permits. If in connection
with construction of Tenant Finish, it shall become necessary to make
improvements or repairs to the Premises, other than such Tenant Finish, in
order to bring the Premises (or the building in which the Premises are located)
into compliance with currently applicable federal, city, county or state
building codes or health standards,
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including but not limited to, fire sprinklers and other fire code requirements
(collectively, "Code Mandated Improvements"), and any ADA compliance matters
(as set forth in Section 11.(c) below) ("ADA Improvements"), such additional
Code Mandated Improvements and ADA Improvements shall be paid by Landlord.
Landlord and Tenant agree that to the extent reasonably possible all Tenant
Finish and Code Mandated Improvements and ADA Improvements shall be completed
at the same time. If such Code Mandated Improvements and ADA Improvements
cannot be completed at the same time as Tenant Finish, then the rent due
hereunder shall be suspended until any Code Mandated Improvements and ADA
Improvements which would unreasonably interfere with Tenant Finish are
completed.
(b) At the end of this Lease, Tenant shall, if it is not
then in default hereunder, have the right to remove its inventory, furnishings,
equipment and trade fixtures from the Premises provided that it repair all
damage done to the Premises in accomplishing removal so as to leave the
Premises in good condition. Landlord shall have the option to require Tenant
to remove any or all such fixtures, equipment, additions, and/or alterations,
whether to the exterior or interior, which were not approved in writing by
Landlord and restore the Premises to the condition existing immediately prior
to such unapproved change and/or installation, normal wear and tear excepted,
all at Tenant's cost and expense.
(c) Landlord shall be solely responsible for complying
with all requirements relating to new construction and alterations to public
accommodations and commercial facilities as described and defined in Subchapter
III of the Americans with Disabilities Act of 1990 and the regulations
promulgated thereunder, as they may be amended (the "ADA"), with respect to the
Premises. Tenant shall be solely responsible for complying with all such ADA
requirements with respect to Tenant's furniture, fixtures and equipment, and
for providing auxiliary aids and services to accommodate specific needs of
disabled employees, licensees, and invitees of Tenant.
12. APPROVAL OF CHANGES - SIGNS - LIENS.
(a) Landlord must approve in writing any sign to be
placed on the Premises, regardless of size or value, and any improvements,
additions, alterations and/or changes to the Premises in excess of Two Thousand
Dollars ($2,000.00), which approval shall not be unreasonably withheld.
Landlord shall have the right to require Tenant's contractor(s) to furnish
adequate lien waivers on work completed to both Tenant and Landlord. Landlord
reserves the right to post notice in the Premises that Landlord is not
responsible for payment of the work performed.
(b) Tenant expressly covenants and agrees that it will,
during the term hereof, promptly remove or release, by the posting of a bond or
otherwise, as required or permitted by law,
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any lien attached to or upon the Premises or any portion thereof by reason of
any act or omission on the part of Tenant, and it hereby expressly agrees to
save and hold harmless Landlord from or against any such lien or claim of lien.
In the event any such lien does attach, or any claim of lien is made against
the Premises, which may be occasioned by any act or omission upon the part of
Tenant, and it is not thus released within thirty (30) days after notice
thereof, Landlord, in its sole discretion, (but nothing herein contained shall
be construed as requiring it so to do) may pay and discharge such lien and
relieve the Premises from such lien, and Tenant agrees to pay and reimburse
Landlord upon demand for any expense which may be incurred by Landlord in
connection with such lien or claim, including reasonable attorney's fees.
13. USE OF PREMISES. Tenant shall use the Premises for office,
manufacturing and warehouse space and other related uses and shall not use or
permit the Premises to be used for any other purpose without the prior written
consent of Landlord. Tenant shall not do or permit anything to be done in or
about the Premises nor bring or keep anything on the Premises which will in any
way increase the existing rate of or affect any fire or other insurance upon
the building or any of its contents, or cause cancellation of any insurance
policy covering the building or Premises or any part thereof or any of its
contents. Tenant shall not allow the Premises to be used for any improper,
unlawful or objectionable purposes, nor shall Tenant cause, maintain or permit
any nuisance in, on or about the Premises. Any items stored outside on the
Premises, and the manner of storage thereof, shall be in strict compliance with
the Declaration referenced in Section 0 below.
14. PROTECTIVE COVENANTS. Tenant shall be bound by all of the
terms, conditions, and restrictions set forth in the Declaration of Covenants
of Flatiron Industrial Park, Filing No. 1, recorded February 8, 1972, at Film
760, Reception No. 06743 of the Boulder County Records, a complete copy of
which Declaration has been provided to Tenant by Landlord. In the event of any
such violation by Tenant, Landlord may, at its option, take any action,
reasonable or appropriate, to correct such violation, and Tenant shall be
responsible for all costs and expenses incurred by Landlord to correct such
violations. In the alternative, Landlord may, at its option, notify Tenant in
writing of such violation. In the event Tenant fails to correct such violation
within ten (10) business days from the date of mailing of such written notice
to Tenant, Landlord may terminate this Lease.
15. LIABILITY FOR OVERLOAD. Tenant shall be liable for the cost
of any damage to the Premises or the building or the sidewalks and pavements
adjoining the same which results from the movement of heavy articles. Tenant
shall not overload the floors or any part of the Premises.
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16. INSURANCE.
(a) Landlord shall obtain and keep in force during the
term of this Lease policies insuring Landlord for:
(1) Comprehensive public liability, insuring
against any liability arising out of the ownership, use, occupancy or
maintenance of the Premises and all areas appurtenant thereto, in an
amount of not less than $1,000,000 for injury or death of one person
and $2,000,000 aggregate and not less than $100,000 for personal
property damage per accident; and
(2) Fire and extended coverage, covering the
Premises against loss or damage by fire and against loss or damage by
other risks now or hereafter embraced by "extended coverage."
(b) Tenant shall carry and pay for comprehensive public
liability insurance including property damage and worker's compensation
insurance, insuring Tenant against liability for injury to persons or property
occurring in or about the Premises leased by Tenant or arising out of the
ownership, maintenance, use or occupancy thereof. The liability under such
insurance shall not be less than $1,000,000 for any one person injured or
killed and not less than $2,000,000 aggregate and not less than $100,000 for
personal property damage per accident.
(c) All such policies of insurance shall be from carriers
having a rating of A+ or better in "Best's Insurance Guide". Landlord and
Tenant shall provide to the other copies of policies of insurance required
herein or certificates evidencing the existence and amounts of such insurance.
No policy shall be cancelable or subject to reduction of coverage except after
ten (10) business days prior written notice to Landlord and Tenant. Landlord
shall be listed as an additional insured and additional loss payee on the
insurance required to be maintained by Tenant. All such policies shall be
written as primary policies not contributing with and not in excess of coverage
which Landlord may carry.
(d) Landlord and Tenant each hereby release and relieve
the other and waive their entire right of recovery against the other for loss
or damage arising out of or incident to the perils insured against under this
Section 0, which perils occur in, on or about the Premises, whether due to the
negligence of Landlord or Tenant or their agents, employees, contractors or
invitees. Landlord and Tenant shall, upon obtaining the policies of insurance
required hereunder, give notice to the insurance carrier or carriers that the
foregoing mutual waiver of subrogation is contained in this Lease.
17. FIRE REGULATIONS - RESPONSIBILITY. Subject to
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Landlord's obligation to pay for Code Mandated Improvements, it shall be
Tenant's sole and exclusive responsibility to meet all fire regulations of any
governmental unit having jurisdiction over the Premises as such regulations
affect Tenant's operations, at Tenant's sole expense.
18. ASSIGNMENT OR SUBLETTING.
(a) Except as provided in Section 0, Tenant may not
assign the Lease or sublet the Premises without the written consent of
Landlord, which consent shall not be unreasonably withheld.
(b) Tenant may assign this Lease to any entity which
controls, is controlled by or is under common control with Tenant, or to any
entity resulting from the merger or consolidation with Tenant, or to any entity
which acquires all the assets of Tenant as a going concern of the business
being conducted on the Premises, provided that said assignee assumes, in full,
the obligations of Tenant under this Lease.
(c) No such assignment or subletting pursuant to this
Section 0 shall relieve Tenant of any of its obligations hereunder, and
performance of the covenants herein by assignees or subtenants shall be
considered as performance pro tanto by Tenant.
19. REPLACEMENT OF BUILDING. If the Premises are damaged or
destroyed by fire at any time after the date of this Lease, or if, after such
date, said Premises are damaged or destroyed through any cause not directly
attributable to the negligence of Tenant, Landlord shall proceed with due
diligence to repair or restore the same to the same condition as existed before
such damage or destruction, and as soon as possible thereafter will give
possession to Tenant of the Premises without diminution or change of location.
Notwithstanding the foregoing, in case of the total destruction of the Premises
by fire, or in case the Premises are so badly damaged that, in the opinion of
Landlord, it is not feasible to repair or rebuild the same, then, and in that
event, Landlord shall have the right to terminate this Lease instead of
rebuilding the improvements; provided, however, that Landlord shall give Tenant
written notice of Landlord's intention to terminate, such notice to be served
not later than thirty (30) business days after the occurrence of the damage to
the Premises. In the event the Premises are rendered temporarily untenantable
because of fire or other casualty, base monthly rent shall xxxxx until the
Premises are restored to their former condition. It is further agreed,
however, that the replacement or repair of any portion of the Premises damaged
in connection with any burglary or other forcible entry into the Premises or
damage directly attributable to the negligence of Tenant other than damage
caused by fire, shall be at the sole expense of Tenant.
20. INSPECTION BY LANDLORD. Landlord, or its authorized
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representative, and/or any lender or prospective lender, shall have the right
to enter the Premises during the Lease term at all reasonable times during
usual business hours for purposes of inspection, and/or the performance of any
work therein. Landlord shall have the right to enter the Premises and show the
same to a prospective tenant during the last ninety (90) days of this Lease.
21. DEFAULT - REMEDIES OF LANDLORD.
(a) If after thirty (30) business days written notice of
default (ten (10) business days in the case of a monetary default) Tenant shall
remain in default in the payment of rent or in the keeping of any of the terms,
covenants, or conditions of this Lease to be kept and/or performed by Tenant,
Landlord may immediately, or at any time thereafter declare this Lease
terminated and reenter the Premises, remove all persons and property therefrom,
without being liable to indictment, prosecution for damage therefor, or for
forcible entry and detainer, and repossess and enjoy the Premises, together
with all additions thereto or alterations and improvements thereof. Landlord
may, at its option, elect to treat this Lease as still in effect and relet the
Premises or any part thereof for the account of Tenant. Landlord shall receive
and collect the rents therefor and apply the same first to the payment of such
expenses as Landlord may have incurred in recovering possession and for putting
the same in good order and condition for rerent, and expense and commissions
and charges paid by Landlord in reletting the Premises. Any such reletting may
be for the remainder of the term of this Lease or for a longer or shorter
period. Whether or not the Premises or any part thereof be relet, Tenant shall
pay Landlord the rent and all other charges required to be paid by Tenant up to
the time of the expiration of this Lease or of such recovered possession, as
the case may be, and thereafter, Tenant, if required by Landlord, shall pay to
Landlord until the end of the term of this Lease, the equivalent of the amount
of all rent reserved herein and all other charges required to be paid by
Tenant, less the net amount received by Landlord for such reletting, if any.
If the Premises shall be reoccupied by Landlord, then, from and after the date
of repossession, Tenant shall be discharged of any obligations to Landlord
under the provisions hereof for the payment of rent.
(b) In the event of any default by Tenant which is not
timely cured, and regardless of whether the Premises shall be relet or
possessed by Landlord, any fixtures, additions, furniture, and the like then on
the Premises may be retained by Landlord.
(c) In the event of a default by Tenant in the
performance of any of its duties and obligations hereunder, Tenant shall pay
all costs incurred by Landlord in the enforcement of the provisions of this
Lease (including this provision) as against said Tenant, said costs to include
reasonable attorneys' fees
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whether or not litigation is commenced.
22. DEFAULT AND ABANDONMENT - REMEDIES OF LANDLORD. In the event
Tenant is in default under the terms hereof, and has abandoned the Premises,
Landlord shall have the right to remove all Tenant's property from the Premises
and dispose of said property in a commercially reasonable manner , all at the
cost and expense of Tenant and without liability of Landlord for the actions so
taken.
23. BANKRUPTCY. If at any time during the term hereof Tenant
shall file a voluntary petition in Bankruptcy, or if an involuntary petition in
Bankruptcy shall be filed against Tenant if the same shall not be dismissed
within thirty (30) days, or if Tenant makes an assignment for the benefit of
creditors, or if a receiver shall be appointed for Tenant, then Landlord may,
at its option, in any of such events, immediately take possession of the
Premises and terminate this Lease. Upon such termination, all installments of
rent earned to the date of termination and unpaid shall at once become due and
payable, and in addition thereto Landlord shall have all rights provided by the
Bankruptcy Code relative to the proof of claims on an anticipatory breach on an
executory contract.
24. INDEMNIFICATION. Tenant agrees to indemnify and hold Landlord
harmless from any claims, damages, liens, or judgments that may be filed,
entered or asserted against it by virtue of Tenant's use of the Premises or by
virtue of any act of Tenant, its agents, servants, contractors, licensees,
invitees, or employees. Landlord agrees to indemnify and hold Tenant harmless
from any claims, damages, liens, or judgments that may be filed, entered or
asserted against it by virtue of Landlord's use of the Premises or by virtue of
any act of Landlord, its agents, servants, contractors, licensees, invitees, or
employees. The obligations of Landlord and Tenant in this Section 0 shall
survive the expiration or termination of this Lease.
25. WARRANTY OF TITLE. Landlord covenants it has the legal right
to lease the Premises in the manner described herein and that Tenant shall
peaceably and quietly have, hold, occupy, and enjoy the Premises during the
term of the Lease.
26. ACCESS. Landlord shall provide Tenant non-exclusive access
through and across land owned by Landlord to the Premises. Landlord shall have
the right to designate, during the term of this Lease, non-exclusive roadways,
sidewalks, and other common facilities of which the Premises are a part.
27. DEVELOPMENT OF PROPERTY - RIGHTS OF LANDLORD. Landlord does
reserve, during the term of this Lease, the right to go upon and deal with the
Premises or part thereof for the purpose of implementing a common development
plan for the project of which the Premises are a part, and to install
non-exclusive roadways and
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other street improvements for use by vehicles, pedestrians, and for parking; to
undertake such drainage programs to handle underground and surface drainage
water and to make any other changes and/or improvements as Landlord shall deem
advisable in the exercise of its sole discretion; provided, however, any such
action by Landlord shall not unreasonably interfere with the rights of Tenant
hereunder.
28. EMINENT DOMAIN. The parties agree that Landlord shall have
complete freedom of negotiation and settlement of all matters pertaining to the
acquisition of all or part of Premises by any public or quasi-public authority.
It is understood and agreed that any financial settlement respecting land
and/or building to be taken, whether resulting from negotiation and agreement
or condemnation proceedings, shall be the exclusive property of Landlord, there
being no sharing whatsoever between Landlord and Tenant of any sum received in
settlement. If any part of the Premises in excess of twenty-five percent (25%)
of the area of the Premises is taken or condemned for a public or quasi-public
use (or any transfer is made in lieu thereof), either party hereto shall have
the right, at its option, to terminate this Lease. If either (i) less than
twenty-five percent (25%) of the land area of the Premises is taken, or (ii)
more than twenty-five (25%) percent of the land area of the Premises is taken
and neither party elects to terminate the Lease, the rent payable hereunder
shall be equitably adjusted. Neither Landlord nor Tenant shall have any claim
against each other for the value of the unexpired Lease. The taking of land,
as noted herein, shall not be considered as a breach of this Lease by Landlord,
nor give rise to any claims in Tenant for damages or compensation from
Landlord.
29. SUBORDINATION. Tenant agrees that its Lease rights will be
subordinate to those of any lending institution making any loan upon the real
property which is part of the Premises. Tenant further agrees to sign
reasonable documents reflecting this subordination when and if requested by
Landlord. If Tenant fails to execute and deliver such documents, Tenant
irrevocably constitutes and appoints Landlord as Tenant's special
attorney-in-fact to execute and deliver such documents on Tenant's behalf. In
the event of subordination of this Lease, at Tenant's request, Landlord shall
obtain a nondisturbance agreement from the superior lien holder protecting
Tenant's rights under this Lease.
30. INTEREST ON PAST DUE OBLIGATIONS. Any amount due to Landlord
not paid within five (5) business days of when due shall bear interest at one
and one-half (1 1/2) percent per month computed on a daily basis from due date
until paid. Payment of such interest shall not excuse or cure any default by
Tenant under this Lease.
31. LATE CHARGE. If any rent, additional rent or other charges
due to Landlord are not paid within five (5) business days of when due,
Landlord and Tenant agree that Landlord will incur
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additional administration and economic expenses and inconvenience, the amount
of which will be difficult to determine. Accordingly, notwithstanding the
interest charge payable pursuant to Section 0, Tenant shall pay Landlord an
additional late charge in the amount of $500.00.
32. MEMORANDUM OF LEASE - RECORDING. This Lease shall not be
recorded in the office of the County Clerk and Recorder of Boulder County. In
order to effect public recordation, the parties hereto may, at the time this
Lease is executed, agree to execute a Memorandum of Lease incorporating therein
by reference the terms of this Lease, but deleting therefrom any expressed
statement or mention of the amount of rent herein reserved, which instrument
may be recorded by either party in the office of the Clerk and Recorder of
Boulder County.
33. ENVIRONMENTAL MATTERS.
(a) Definitions.
(1) Hazardous Material. Hazardous Material means
any substance:
(i) which is or becomes defined as a
"hazardous material," "hazardous waste," "hazardous
substance," "regulated substance," pollutant or contaminant
under any federal, state or local statute, regulation, rule,
order, or ordinance or amendments thereto; or
(ii) the presence of which on the
Premises causes or threatens to cause a nuisance upon the
Premises or to adjacent properties or poses or threatens to
pose a hazard to the health or safety of persons on or about
the Premises or requires investigation or remediation under
any federal, state or local statute, regulation, rule, order,
or ordinance or amendments thereto.
(2) Environmental Requirements.
Environmental Requirements means all applicable present and future
statutes, regulations, rules, ordinances, codes, licenses, permits,
orders, approvals, plans, authorization, concessions, franchises, and
similar items, of all governmental agencies, departments, commissions,
boards, bureaus, or instrumentalities, of the United States, states
and political subdivisions thereof and all applicable judicial,
administrative, and regulatory decrees, judgments, and orders relating
to the protection of human health or the environment.
(3) Environmental Damages.
Environmental Damages means all claims, judgments, injuries, damages
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(including without limitation damages for diminution in the value of
the Premises and adjoining property and for the loss of business from
the Premises and adjoining property), losses, penalties, fines,
liabilities (including strict liability), encumbrances, liens, costs,
and expenses of investigation and defense of any claim, and of any
good faith settlement of judgment, of whatever kind or nature,
contingent or otherwise, matured or unmatured, foreseeable or
unforeseeable, including without limitation reasonable attorneys' fees
and disbursements and consultants' fees, any of which are incurred at
any time as a result of the existence of "Hazardous Material" upon,
about, beneath the Premises or migration or threatening to migrate to
or from the Premises or the existence of a violation of "Environmental
Requirements" pertaining to the Premises.
(b) Tenant's Obligation to Indemnify, Defend and Hold
Harmless.
(1) Tenant, its successors, assigns and
guarantors, agree to indemnify, defend, reimburse and hold harmless
the following persons from and against any and all "Environmental
Damages" arising from activities of Tenant or its employees, agents,
or invitees which (a) result in the presence of "Hazardous Materials"
upon, about or beneath the Premises or migrating to or from the
Premises, or (b) result in the violation of any "Environmental
Requirements" pertaining to the Premises and the activities thereon:
(i) Landlord;
(ii) any other person who acquires a
portion of the Premises in any manner, including but
not limited to through purchase, at a foreclosure
sale or otherwise through the exercise of the rights
and remedies of Landlord under this Agreement; and
(iii) the directors, officers, shareholders,
employees, partners, members, managers, agents,
affiliates, lessees, mortgagees, trustees, heirs,
devisees, successors, and assigns of such persons.
(2) This obligation shall include, but not be
limited to, the burden and expense of defending all claims, suits and
administrative proceedings (with counsel reasonably approved by the
indemnified parties), and conducting all negotiations of any
description, and paying and discharging, when and as the same become
due, any and all judgments, penalties or other sums due against such
indemnified persons. Tenant, at its sole expense, may employ
additional counsel of its choice to associate with counsel
representing Landlord.
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(3) The obligations of Tenant in this Section 0
shall survive the expiration or termination of this Lease.
(c) Notification. If Tenant shall become aware of or
receive notice or other communication concerning any actual, alleged, suspected
or threatened violation of "Environmental Requirements," or liability of Tenant
for "Environmental Damages" in connection with the Premises or past or present
activities of any person thereon, or that any representation set forth in this
Agreement is not or is no longer accurate, then Tenant shall deliver to
Landlord, within ten (10) business days of the receipt of such notice, or
communication or correcting information by Tenant, a written description of
such information or condition, together with copies of any documents evidencing
same.
(d) Negative Covenants.
(1) No Hazardous Material on Premises. Except in
strict compliance with all Environmental Requirements, Tenant shall
not cause, permit or suffer any "Hazardous Material" to be brought
upon, treated, kept, stored, disposed of, discharged, released,
produced, manufactured, generated, refined or used upon, about or
beneath the Premises or any portion thereof by Tenant, its agents,
employees, contractors, tenants or invitees, or any other person
without prior written consent of Landlord.
(2) No Violations of Environmental Requirements.
Tenant shall not cause, permit or suffer the existence or the
commission by Tenant, its agents, employees, contractors, or invitees,
or by any other person of a violation of any "Environmental
Requirements" upon, about or beneath the Premises or any portion
thereof.
(e) Right to Inspect. Landlord shall have the right in
its sole and absolute discretion, but not the duty, to enter and conduct an
inspection of the Premises at any reasonable time to determine whether Tenant
is complying with the terms of this Lease, including but not limited to the
compliance of the Premises and the activities thereon with "Environmental
Requirements" and the existence of "Environmental Damages." Tenant hereby
grants to Landlord the right to enter the Premises and to perform such tests on
the Premises as are reasonably necessary in the opinion of Landlord to conduct
such reviews and investigations. Landlord shall use its best efforts to
minimize interference with the business of Tenant but Landlord shall not be
liable for any interference caused thereby.
(f) Right to Remediate. Should Tenant fail to perform or
observe any of its obligations or agreements pertaining to "Hazardous
Materials" or "Environmental Requirements," then Landlord shall have the right,
but not the duty, without
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limitation upon any of the rights of Landlord pursuant to this Agreement, to
enter the Premises personally or through its agents, consultants or contractors
and perform the same. Tenant agrees to indemnify Landlord for the costs
thereof and liabilities therefrom as set forth in Section 0 above.
(g) Obligation to Remediate.
(1) Notwithstanding the obligation of Tenant to
indemnify Landlord pursuant to this Lease Agreement, Tenant shall,
upon demand of Landlord, and at its sole cost and expense, promptly
take all actions reasonably necessary to remediate all Environmental
Damages, excluding, however, any Environmental Damages which Landlord
is required to remediate pursuant to Section 33(g)(2) below.
(2) Landlord agrees to remediate all
Environmental Damages (a) caused by Landlord, its agents, employees or
invitees, or (b) not so caused but arising prior to the Lease
Commencement Date hereof and not caused by Tenant, its agents,
employees or invitees.
(h) Landlord's Obligation to Indemnify, Defend and Hold
Harmless.
(1) Landlord, its successors, assigns and
guarantors, agree to indemnify, defend, reimburse and hold harmless
the following persons from and against any and all "Environmental
Damages" arising from activities of Landlord or its employees, agents,
or invitees, or which occurred prior to the Lease Commencement Date
(and were not caused by Tenant, its agents, employees or invitees),
which (a) result in the presence of "Hazardous Materials" upon, about
or beneath the Premises or migrating to or from the Premises, or (b)
result in the violation of any "Environmental Requirements" pertaining
to the Premises and the activities thereon:
(i) Tenant; and
(ii) the directors, officers, shareholders,
employees, partners, members, managers, agents,
affiliates, lessees, mortgagees, trustees, heirs,
devisees, successors, and assigns of such persons.
(2) This obligation shall include, but not be
limited to, the burden and expense of defending all claims, suits and
administrative proceedings (with counsel reasonably approved by the
indemnified parties), and conducting all negotiations of any
description, and paying and discharging, when and as the same become
due, any and all judgments, penalties or other sums due against such
indemnified persons. Landlord, at its sole expense, may employ
additional counsel
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of its choice to associate with counsel representing Tenant.
(3) The obligations of Landlord in this
Section 33(h) shall survive the expiration or termination of this
Lease.
34. NO WAIVER OF BREACH. No assent, expressed or implied, to any
breach of any one or more of the covenants or agreements herein shall be deemed
or taken to be a waiver of any succeeding or additional breach.
35. NOTICE PROCEDURE. All notices, demands, and requests which
may or are required to be given by either party to the other shall be in
writing and shall be deemed to have been properly given if served on the other
party or sent to the other party by United States certified mail, return
receipt requested, properly sealed, stamped and addressed as follows:
Landlord: Technical Building Company
c/o Xx. Xxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
Tenant: American Coin Merchandising, Inc.
d/b/a Sugarloaf Creations, Inc.
c/o Xxxxxx X. Xxxxx
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
or at such other place as the parties may from time to time designate in a
writing. Any notice given by mail shall be effective as of the date of mailing
as shown by the receipt given therefor.
36. CONTROLLING LAW. This Lease and all terms hereunder shall be
construed consistent with the laws of the State of Colorado. Any dispute
resulting in litigation hereunder shall be resolved in court proceedings
instituted in Colorado and in no other jurisdiction.
37. BINDING UPON SUCCESSORS. The covenants and agreements herein
contained shall bind and inure to the benefit of Landlord and Tenant and their
respective successors. This Lease shall be signed by the parties in duplicate,
each of which shall be a complete and effective original Lease.
38. MISCELLANEOUS. All marginal notations and section headings
are for the purposes of reference and shall not affect the true meaning and
intent of the terms hereof. Throughout this Lease, wherever the words,
"Landlord" and "Tenant" are used they shall include and imply to the singular,
plural, persons both male and female, companies, partnerships and corporations,
and in reading said Lease, the necessary grammatical changes required to
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make the provisions hereof mean and apply as aforesaid shall be made in the
same manner as though originally included in said Lease.
39. ADDITIONAL PROVISIONS.
(a) Parking; Resurfacing. Tenant shall be entitled to a
minimum of two-thirds of the parking spaces in the parking lot immediately
adjacent to the Premises. Landlord shall specify the location of such parking
spaces on the lot after consultation with Tenant. Landlord agrees to resurface
the parking lot on or before June 30, 1997.
(b) Option on Adjacent Space. Tenant shall have the
first right to lease any additional space in the subject property. Landlord
shall notify Tenant when a vacancy occurs and Tenant shall have fifteen (15)
business days to accept the vacant space, under market terms and conditions.
If Tenant does not notify Landlord in writing of its intent to lease the
additional space, Landlord shall be free to begin negotiation with any other
prospective tenant.
(c) Condition of Premises. Landlord agrees that, after
the current tenant vacates the Premises and prior to the commencement date of
this Lease, the carpets in the Premises will be steam-cleaned and appropriate
touch-up painting will be done in the office areas. Landlord further agrees to
remove any trash or rubbish and otherwise deliver the Premises to Tenant in a
clean and useable condition on the commencement date of this Lease.
(d) Attorney Fees. In the event of any dispute arising
out of or in connection with this Lease, the prevailing party shall be entitled
to all reasonable costs and expenses incurred by such prevailing party,
including reasonable attorney's fees.
(e) Approval of Tenant Finish. Tenant has together with
Landlord prepared and submitted to the City of Boulder a building permit
application regarding the Tenant Finish desired to be constructed by Tenant on
the Property, and the City of Boulder has issued a letter indicating its
approval of the building permit application, subject only to delivery of the
name of the licensed contractor who will perform the work. Landlord may
terminate this Lease if Tenant fails to submit the name of the licensed
contractor who will perform the Tenant Finish installation to the City of
Boulder on or before January 22, 1997. If after due submission of a licensed
contractor name, the City of Boulder does not issue a building permit by
January 24, 1997, or if the City of Boulder or other applicable governmental
authorities reject Tenant's plans for Tenant Finish or require such
modifications which are unacceptable to Tenant, then Tenant shall have the
right to terminate this Lease by written notice to Landlord no later than
January 28, 1997. Upon delivery of a notice of termination,
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this Lease shall be null and void and of no further force and effect, Landlord
shall return any security deposit plus all accrued interest to Tenant, and
Tenant shall have no further rights, duties or obligations hereunder.
40. DEFAULT BY LANDLORD. If after thirty (30) days' written
notice of default, Landlord shall remain in default in the keeping of the
terms, covenants, or conditions contained in Sections 0, 0(a), 0(c), and 0 of
this Lease to be kept by and/or performed by Landlord, Tenant may immediately
terminate this Lease by written notice to Landlord. Tenant may, at its option,
pay or perform such obligations of Landlord hereunder to which default has been
declared, and withhold the amount or value of such payment or performance from
any rent due Landlord hereunder.
IN WITNESS WHEREOF, the parties have executed this Lease as of the
date hereof.
LANDLORD: TECHNICAL BUILDING COMPANY
By: /s/ Xxxxxxx Xxxxxx
-------------------------------
Xxxxxxx Xxxxxx, Managing Agent
TENANT: AMERICAN COIN MERCHANDISING, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Xxxxxx X. Xxxxx, President
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