REAL PROPERTY LEASE (BUILDING A) BY AND BETWEEN Havana Gold, LLC LESSOR AND Scott’s Liquid Gold-Inc. LESSEE PROPERTY ADDRESS
Exhibit 10.26
(BUILDING A)
BY AND BETWEEN
Havana Gold, LLC
LESSOR
AND
Xxxxx’x Liquid Gold-Inc.
LESSEE
0000 Xxxxxx Xxxxxx, Xxxxxxxx X, Xxxxxx XX 00000
PROPERTY ADDRESS
LEASE AGREEMENT
THIS LEASE AGREEMENT (the “Lease”) is entered into as of February 1, 2013, by and between Havana Gold, LLC, a Colorado limited liability company (hereinafter referred to as “Lessor”), and Xxxxx’x Liquid Gold-Inc., a Colorado corporation (hereinafter referred to as “Lessee”).
W I T N E S S E T H:
1. PREMISES
Lessor leases to Lessee and Lessee leases from Lessor, upon the terms and conditions as hereinafter set forth, certain premises situated in the City and County of Denver, State of Colorado, consisting of a portion of the office building commonly known and described as Building A, located at 0000 Xxxxxx Xxxxxx, Xxxxxx, XX, 00000 (the “Building”), which portion consists of the entirety of the fourth floor of the Building, containing a total of approximately 16,078 square feet of rentable area (hereinafter referred to as the “Premises”), together with (i) any rights of way, easements, and other rights, if any, appurtenant thereto, including without limitation a non-exclusive license to use any portions of the Building or the land on which it is situated that are designated by Lessor for the common use of tenants and others, (ii) the nonexclusive right to use the computer room located on the third floor of the Building for the placement, maintenance, repair, or replacement of its network servers and other computer and telephone equipment, and (iii) the parking rights described below. The Premises are depicted on Exhibit “A” attached hereto and incorporated herein by this reference. Lessee and its employees and invitees shall have the right to use, at no additional charge, a total of (a) eighteen (18) reserved parking spaces in the underground parking garage adjacent to the Building, (b) thirty (30) parking spaces in the surface parking lot located north of the building commonly referred to as Building D (the “North Lot”), and three (3) reserved visitor parking spaces to be designated for Lessee’s visitors, located immediately in front of the Building. The locations of the parking spaces in the North Lot shall be within the first five (5) rows at the south end of the North Lot.
Without limiting the generality of the foregoing, during the term Lessee and Lessee’s agents, officers and employees shall have the right to use the existing cafeteria space located within the Building, but such use shall be limited to the hours of operation and terms of service as are provided to all other users of the cafeteria by the operator of the cafeteria.
2. TERM OF LEASE
The term of this Lease (the “Term”) shall begin on February 1, 2013 (the “Commencement Date”), and shall expire at midnight on January 31, 2016. Lessee shall have two (2) options to extend the Term of the Lease, for renewal terms of three (3) additional years each (each, a “Renewal Term”). Each of these options may be exercised by Lessee providing Lessor with written notice of such exercise no less than ninety (90) days prior to the expiration of the initial Term or the first Renewal Term, as applicable. Lessee’s failure to exercise its option to extend the Term for the first Renewal Term shall automatically cancel the option to extend for a second Renewal Term. The term “Lease Year” means each consecutive twelve-month period beginning with the Commencement Date, except that if the Commencement Date is not the first day of a calendar month, then the first Lease Year shall be the period from the Commencement Date through the final day of the twelve months after the first day of the following month, and each subsequent Lease Year shall be the twelve months following the prior Lease Year.
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3. RENT
Lessee hereby agrees to pay rent (“Base Rent”) to Lessor in the amounts specified below. The first monthly installment shall be payable on the Commencement Date (which shall be prorated for a partial month if the Commencement Date is not the first day of a month), and thereafter on or before the first day of each month of the Term in the following amounts:
For the first Lease Year, the amount of SEVENTEEN THOUSAND FOUR HUNDRED SEVENTEEN AND 83/100 DOLLARS ($17,417.83) per month.
For the second Lease Year, the amount of SEVENTEEN THOUSAND NINE HUNDRED FORTY AND 36/100 DOLLARS ($17,940.36) per month.
For the third Lease Year, the amount of EIGHTEEN THOUSAND FOUR HUNDRED SEVENTY EIGHT AND 58/100 DOLLARS ($18,478.58) per month.
If Lessee elects to extend this Lease for a Renewal Term, the Base Rent shall be as follows:
For the fourth Lease Year, the amount of NINETEEN THOUSAND THIRTY-TWO AND 94/100 DOLLARS ($19,032.94) per month.
For the fifth Lease Year, the amount of NINETEEN THOUSAND SIX HUNDRED THREE AND 93/100 DOLLARS ($19,603.93) per month.
For the sixth Lease Year, the amount of TWENTY THOUSAND ONE HUNDRED NINETY-TWO AND 05/100 DOLLARS ($20,192.05) per month.
For the seventh Lease Year, the amount of TWENTY THOUSAND SEVEN HUNDRED NINETY-SEVEN AND 81/100 DOLLARS ($20,797.81) per month.
For the eighth Lease Year, the amount of TWENTY-ONE THOUSAND FOUR HUNDRED TWENTY-ONE AND 74/100 DOLLARS ($21,421.74) per month.
For the ninth Lease Year, the amount of TWENTY-TWO THOUSAND SIXTY-FOUR AND 39/100 DOLLARS ($22,064.39) per month.
All such payments shall be made to Lessor at Lessor’s address as set forth in this Lease on or before the due date and without demand. Lessee agrees to pay Base Rent in the form of a personal check, cashier’s check, or money order made out to Lessor. All additional amounts other than Base Rent due from Lessee to Lessor shall be referred to herein as “Additional Rent,” and Base Rent and Additional Rent shall together be referred to as “Rent.”
3. LATE PAYMENTS: Base Rent is due on the first day of each month and shall be deemed late on the 6th day of each month. If Base Rent is late more than one time in any calendar year during the Term, then a late fee of five percent (5%) of the delinquent payment shall become payable for any subsequent Base Rent payment during that calendar year that is not received on time. The addition of such late fee and the collection thereof shall not operate to waive any other rights of Lessor for nonpayment of Base Rent or for any other reason.
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4. SECURITY DEPOSIT
On the Commencement Date, Lessee shall deposit with Lessor a security deposit in the amount of SEVENTEEN THOUSAND FOUR HUNDRED SEVENTEEN DOLLARS AND NO/100 DOLLARS ($17,417.00).
If, at any time during the Term of this Lease, Lessee shall be in default in the performance of any of the provisions of this Lease beyond any applicable period for notice and cure, Lessor shall have the right but not the obligation to use the security deposit, or as much thereof as Lessor may deem necessary, to cure, or correct or remedy any such default; and Lessee, upon notification thereof, shall forthwith pay to Lessor any and all such expenditure or expenditures so that Lessor will at all times have the full amount of the security deposit. This security deposit and application thereof shall not be considered as liquidated damages in the event of breach but only as application toward actual damages. Upon the termination of this Lease in any manner, if Lessee is not then in default hereunder, the security deposit or so much thereof as has not been lawfully expended by Lessor shall be returned to Lessee.
5. USE OF PREMISES
Lessee shall have the right to use and occupy the Premises for an office space or any such other similar use, provided this use conforms with applicable zoning regulations. Any other use shall be permitted only with the prior written consent of Lessor. Lessee covenants throughout the Term of this Lease, at Lessee’s sole cost and expense, to promptly comply with all laws and ordinances and the orders, rules, regulations and requirements of all federal, state and municipal governments and appropriate departments, commissions, boards and officers thereof (collectively, “Laws”), in each case to the extent applicable to its use of the Premises; provided, however, Lessee will only be required to make structural repairs and alterations which are required by Laws as a direct result of Lessee’s specific use of the Premises (but not if required for general office use).
6. INSURANCE
During the Term of the Lease, Lessee and Lessor shall carry and maintain the following policies of insurance:
a. Lessor’s Insurance. Lessor shall, at its sole cost and expense, obtain and maintain throughout the Term of this Lease cause of loss “special form” insurance (formerly known as “all risk”) on the Building, including the Premises, and any parking facilities, at a minimum full replacement cost of the Building, the Premises (other than Lessee’s Property as defined below), and the parking facilities. Such insurance shall not be required to cover any of Lessee’s inventory, furniture, furnishings, fixtures, or equipment within the Premises (collectively, “Lessee’s Property”), and Lessor shall not be obligated to repair any damage thereto or replace any of same, and Lessee shall have no interest in any proceeds of Lessor’s insurance.
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b. Lessee’s Insurance. Lessee shall, at its sole cost and expense, obtain and maintain throughout the Term of this Lease, on a full replacement cost basis, “special form” insurance covering all of Lessee’s Property located on or within the Premises, and Lessor shall have no interest in any proceeds of such policy. In addition, Lessee shall obtain and maintain, at its sole cost and expense, commercial general public liability insurance providing coverage from and against any loss or damage occasioned by an accident or casualty on, about or adjacent to the Premises, including protection against death, personal injury and property damage. Such liability coverage shall be written on an “occurrence” basis, with limits of not less than $2,000,000.00 combined single limit coverage. All policies of liability insurance required to be carried by Lessee hereunder shall name Lessor and its property manager, if any, as additional insureds. To the extent such coverage is available, each such policy shall provide that same shall not be cancelled or materially modified without at least thirty (30) days’ prior written notice to Lessor and any mortgagee of Lessor. The limits of such insurance shall not, under any circumstances, limit the liability of Lessee under this Lease. In the event that Lessee fails to maintain any of the insurance required of it pursuant to this provision, Lessor shall have the right (but not the obligation) at Lessor’s election, after five (5) business days written notice to Lessee, to pay Lessee’s premiums or to arrange substitute insurance with an insurance company of Lessor’s choosing, in which event any premiums advanced by Lessor shall constitute Additional Rent payable under this Lease and shall be payable by Lessee to Lessor immediately upon demand for same.
(c) Mutual Subrogation Waiver. Lessor and Lessee hereby agree to obtain from any insurer providing property insurance coverage to either of them covering the Premises, the Building, the parking facilities or Lessee’s Property, a waiver of any right of subrogation any such insurer of one party may acquire against the other or as against the Lessor or Lessee by virtue of payments of any loss under such insurance, and to cause each such policy to be properly endorsed to reflect such waiver. As requested, the parties shall provide evidence to one another of their respective insurers’ waivers of subrogation hereunder. Notwithstanding anything to the contrary contained in this Lease, each party hereby waives any and all rights to recover from the other and its officers, agents, members, managers and employees for any loss or damage, including consequential loss or damage, caused by any peril or perils (including negligent acts) enumerated in each cause of loss-special risk form property insurance policy required to be maintained by either party hereunder.
d. Miscellaneous. All insurance required by virtue of this Section shall be written with an insurance company licensed to do business within the State of Colorado, with such policies to be non-assessable. Upon request, each party shall provide the other with a certificate of insurance (with proof of payment), evidencing the coverages required hereunder.
7. PAYMENT OF TAXES AND ASSESSMENTS
Lessor shall timely pay all real property taxes, assessments, and similar amounts on the land and Building, but not on Lessee’s Property contained in the Premises.
8. ASSIGNMENT AND SUBLETTING
This Lease or any interest herein may be assigned by Lessee, voluntarily or involuntarily, by operation of law or otherwise, and either all or any part of the Premises may be subleased by Lessee with the prior written consent of Lessor, which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding anything to the contrary contained in this Lease, Lessee shall have the right, without obtaining Lessor’s prior written consent, to assign or sublease all or any portion of the Premises to any affiliate of Lessee. For purposes of this Section, an “affiliate” of Lessee shall mean any entity which, directly or indirectly, controls or is controlled by or is under common control with Lessee, or a successor
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entity to Lessee by virtue of merger, consolidation, or nonbankruptcy reorganization or the sale of all or substantially all of the assets of Lessee. For purpose of the definition of “affiliate,” the word “control” (including “controlled by” and “under common control with”), as used with respect to any corporation, partnership, or association, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policy of a particular corporation, partnership or association, whether through the ownership of voting securities or by contract or otherwise. Notwithstanding the foregoing, it is understood and agreed that following any assignment or sublease of all or any portion of the Premises, unless the parties shall agree otherwise in writing, Lessee shall remain fully liable for payment of Rent and performance of all of Lessee’s obligations under this Lease.
9. SERVICES AND UTILITIES
Lessor shall furnish services as follows:
a. Heating and Air Conditioning. Lessor shall furnish heating and air conditioning to provide a comfortable temperature for normal business operations (which the parties agree shall be 72°F +/- 2°F), except to the extent Lessee installs equipment which adversely affects the temperature in the Premises maintained by the HVAC system. If Lessee installs such equipment, then, upon ten (10) days written notice to Lessee containing information supporting Lessor’s claim that Lessee’s equipment is affecting the temperature in the Premises, Lessor may install supplementary air conditioning units in the Premises, and Lessee shall pay to Lessor within thirty (30) days following demand as Additional Rent the reasonable cost of installation, operation and maintenance thereof.
b. Elevators. Lessor shall provide passenger elevator service during normal business hours to Lessee in common with Lessor and all other tenants. Lessor shall provide limited passenger elevator service at other times, provided Lessee shall have at least one (1) passenger elevator available for service to the Premises 24 hours per day, seven (7) days per week, except in case of an event beyond Lessor’s reasonable control.
c. Electricity. Lessor shall provide sufficient electricity to operate normal office lighting and equipment 24 hours per day, seven (7) days per week, as well as lighting replacement for building standard lights. Lessee shall not install or operate in the Premises any electrically operated equipment or other machinery, other than business machines, computers, telephones, and equipment normally employed for general office use which do not require high electricity consumption for operation, without obtaining the prior written consent of Lessor, which shall not be unreasonably withheld, conditioned or delayed.
d. Water. Lessor shall furnish hot and cold tap water for drinking and toilet purposes.
e. Janitorial Service. Lessor shall furnish janitorial service not less than five (5) days per week (excluding holidays), as generally provided to other tenants in the Building, including without limitation office cleaning, restroom supplies, window washing, and trash pickup in a manner that such services are customarily furnished to comparable office buildings in the area.
f. Access. Lessor shall provide access to the Premises, the Building and the parking facilities, subject to such security card system as Lessor may establish from time to time, twenty-four (24) hours per day, seven (7) days per week.
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g. Security. Lessor shall provide standard security services comparable to other office buildings in the area.
h. Interruption of Services. If any of the Building equipment or machinery ceases to function properly for any cause, Lessor shall use reasonable diligence to repair the same promptly. Lessor’s inability to furnish, to any extent, the Building services set forth in this Section, or any cessation thereof resulting from any causes, including without limitation any entry for repairs pursuant to this Lease, and any renovation, redecoration or rehabilitation of any area of the Building shall not render Lessor liable for damages to either person or property or for interruption or loss to Lessee’s business, nor be construed as an eviction of Lessee, nor work an abatement of any portion of Rent, nor relieve Lessee from fulfillment of any covenant or agreement hereof, unless caused by the negligence or misconduct of Lessor or its employees, agents or contractors. However, in the event that an interruption of the Building services set forth in this Section is within Lessor’s reasonable control and such interruption causes the Premises or some portion thereof to be unusable for the purpose of conducting Lessee’s business therein for a period of at least three (3) consecutive business days, monthly Rent shall be abated proportionately for the period beginning on the first day of the service interruption until such services are restored.
10. PROPERTY MAINTENANCE/ CONDITION OF PREMISES
Lessee has inspected and accepts the Premises in their present condition and acknowledges the Premises are tenantable and in good condition. Lessor shall, at its own cost and expense, maintain, repair and keep in good order Building, the common areas and the parking areas, including without limitation the interior and exterior of the Premises and each and every part thereof and all appurtenances thereof, including but not limited to glass, doors, sidewalks, yards areas, fences, curbs, paving, roof, wiring, plumbing, sewer systems, heating, air cooling installations, elevators, boilers, machinery, and other parts of the Building, except for the repair obligations of Lessee as set forth in Sections 10c(1) and 10c(2).
Lessee shall not permit, commit to suffer waste, impairment or deterioration of the Premises or improvements thereon or any part thereof beyond reasonable wear and tear expected.
a. Lessor’s Obligations.
In the event this Article 10 provides for Lessor’s responsibility for certain repairs and maintenance, Lessor shall be responsible for: (i) any repairs, replacements, restorations, or maintenance that have been necessitated by reason of ordinary wear and tear, (ii) any repairs, replacements, restorations, or maintenance that have been necessitated by the neglect, misuse, or abuse of Lessor, its agents, employees, customers, licensees, invitees, or contractors, and (iii) any repairs, replacements, restorations, or maintenance that have been necessitated by sudden natural forces, or acts of God, or by fire or other casualty not caused by Lessee. The cost of any maintenance, repairs, or replacements necessitated by the neglect, misuse, or abuse of Lessee, its agents, employees, customers, licensees, invitees, or contractors shall be paid by Lessee to Lessor promptly upon billing. Lessor shall use reasonable efforts to cause any necessary repairs to be made promptly; provided, however, that Lessor shall have no liability whatsoever for any delays beyond Lessor’s reasonable control in causing such repairs to be made, including, without limitation, any liability for injury to or loss of Lessee’s business, nor, except as provided above in Section 9.h, shall any delays entitle Lessee to any abatement of Base Rent or Additional Rent or damages, or be deemed an eviction of Lessee in whole or in part.
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b. Lessee’s Allowed Responsibilities.
In the event this Article 10 provides for Lessor’s responsibility for certain repairs and maintenance, Lessee shall not perform or contract with third parties to perform any such repairs upon the Premises or Building. In the event any repair that is the responsibility of Lessor becomes necessary, Lessee shall notify Lessor as soon as possible, and allow reasonable time for the work to be completed. Any unauthorized work performed or contracted for by Lessee will be at the sole expense of Lessee, except for work that Lessee performs or contracts for in order to correct or mitigate an emergency situation, if Lessee has made reasonable efforts to contact Lessor regarding the emergency and has been unable to do so.
c. Lessee’s Obligations.
(1) Except for services or repairs and maintenance for which Lessor is obligated pursuant to Articles 9 and 10 hereof, Lessee, at Lessee’s sole expense, shall maintain in good order, condition and repair, ordinary wear and tear excepted, the following portions of the Premises: the interior surfaces of the ceilings and walls and the painting of such surfaces, the interior surfaces of the floors and all floor coverings (including carpet, pad, tile, vinyl and other floor coverings), all doors, all interior windows and interior window blinds, draperies and other window coverings, all plumbing, pipes and fixtures that solely serve the Premises, electrical wiring, switches and fixtures that solely serve the Premises, and special items and equipment installed by or at the expense of Lessee that solely serve the Premises.
(2) Lessee shall be responsible for all repairs and alterations in and to the Premises and Building and the facilities and systems thereof, the need for which arises out of (i) the installation, removal, use or operation of Lessee’s Property in the Premises, (ii) the moving of Lessee’s Property into or out of the Building, or (iv) the, neglect, misuse, or abuse of Lessee, its agents, contractors, employees or invitees.
(3) If Lessee fails to maintain those portions of the Premises which it is required to maintain hereunder in good order, condition and repair, ordinary wear and tear excepted Lessor shall give Lessee notice to do such acts as are reasonably required to so maintain the Premises. If Lessee fails to promptly commence such work and diligently prosecute it to completion, then Lessor shall have the right to do such acts and expend such funds at the expense of Lessee as are reasonably required to perform such work. Any amount so expended by Lessor shall be paid by Lessee promptly after demand with interest at the prime commercial rate as published in the Wall Street Journal for the date such work was completed plus two percent (2%) per annum, from the date such work was completed until paid, but not to exceed the maximum rate then allowed by law. Lessor shall have no liability to Lessee for any damage, inconvenience, or interference with the use of the Premises by Lessee as a result of performing any such work, unless caused by the neglect, misuse, or abuse of Lessor, its agents, employees, or contractors,.
(4) Waste/ Rubbish Removal: Lessee shall not lay waste to the Premises. Lessee shall not perform any action or practice that may injure the Premises or Building. Subject to Lessor’s obligation to provide janitorial services including trash pickup to the Premises, Lessee shall keep the Premises, the Building and the real property surrounding the Building free and clear of all debris, garbage, and rubbish.
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11. INDEMNITY PROVISIONS
Without limitation of any other provisions hereof and to the extent not prohibited by law, Lessee agrees to defend, protect, indemnify and save harmless Lessor and its partners, and its and their partners, venturers, managers, officers, agents, servants and employees, affiliated limited liability companies, and other affiliated entities from and against all claims, liabilities, losses, damages or expenses made against or incurred by Lessor attributable to the negligence, willful misconduct or breach of this Lease by Lessee or its partners, officers, servants, agents, employees, contractors, suppliers, licensees, visitors, workmen or invitees. Without limitation of any other provisions hereof and to the extent not prohibited by law, Lessor agrees to defend, protect, indemnify and save harmless Lessee and its members, partners, venturers, managers, officers, agents, shareholders, servants and employees from and against all claims, liabilities, losses, damages or expenses made against or incurred by Lessee attributable to the negligence, willful misconduct or breach of this Lease by Lessor or its partners, officers, servants, agents, employees, contractors, suppliers, licensees, visitors, workmen or invitees. The indemnifications set forth in this Section shall survive termination of this Lease.
12. OCCUPATIONAL SAFETY AND HEALTH ACT
Lessee shall fully comply with the Occupational Safety and Health Act of 1970 (as amended) (Chapter XVII, Title XIX of the United States Code) (OSHA) or applicable state statute adopted pursuant to OSHA. Lessee shall fully comply with the provisions and standards as contained in OSHA (as the same may be amended) and Lessee shall hold Lessor harmless from any obligations or responsibilities required under OSHA with respect to Lessee’s activities within or occupancy of the Premises.
13. ALTERATIONS TO PREMISES/ LESSEE IMPROVEMENTS
Unless otherwise provided in the Lease, Lessee shall be solely responsible for any and all improvements and alterations within the Premises necessary for Lessee’s intended use of the Premises, which are not otherwise the responsibility of Lessor as provided for elsewhere in the Lease. Lessee agrees to submit to Lessor complete plans and specifications, including engineering, mechanical, and electrical plans and specifications, covering any and all subsequent improvements or alterations of the Premises. The plans and specifications shall be in such detail as Lessor may reasonably require, and in compliance with all applicable Laws. As soon as reasonably feasible thereafter, Lessor shall notify Lessee of whether it approves the plans, and if not, of the specific reasons for such disapproval. Lessee shall use reasonable efforts to cause Lessee’s plans to be revised to the extent necessary to obtain Lessor’s approval. Except as set forth in the next sentence, Lessee shall not commence any improvements, or alterations of Premises until Lessor has approved Lessee’s plans, which approval shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, Lessee shall have the right to install new carpeting within the Premises, to paint the interior of the Premises, or to install phone and data cabling within or leading to the Premises without obtaining the prior written consent of Lessor, and shall also have the right to make other non-structural alterations within the Premises without obtaining the prior written consent of Lessor, but with prior notice to Lessor, so long as such alterations do not affect 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, and so long as such alterations are not visible from the exterior of the Premises and do not cost more than an aggregate amount per year of $10,000 (collectively, “Minor Alterations”).
14. LESSEE WORK / COMPLIANCE WITH CODES/ MECHANIC’S LIENS
Lessee shall procure all necessary permits before undertaking any alterations, improvements or repairs within the Premises (collectively, “Lessee Work”). Lessee shall perform all Lessee Work in a good and workmanlike manner. Lessee shall use materials of good quality and perform Lessee Work only with
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contractors previously approved of in writing by Lessor (other than Minor Alterations, for which Lessor’s prior approval of the contractor shall not be necessary). Lessee shall comply with all Laws applicable to the Lessee Work, including, but not limited to, building, health, fire, and safety codes. Lessee hereby agrees to hold Lessor and Lessor’s agents harmless and indemnified from all injury, loss, claims, or damage to any person or property (including the cost for defending against the foregoing) occasioned by, or growing out of Lessee Work. Lessee shall promptly pay when due the entire cost of any Lessee Work on the Premises undertaken by Lessee, so that the Premises shall at all times be free of liens for labor and materials. Lessee hereby agrees to indemnify, defend, and hold Lessor harmless of and from all liability, loss, damages, costs, or expenses, including reasonable attorneys’ fees, incurred in connection with any claims of any nature whatsoever for work performed for, or materials, or supplies furnished to Lessee, including lien claims of laborers, materialmen, or others. Should any such liens be filed or recorded against the Premises or the Building with respect to work done for, or materials supplied to, or on behalf of Lessee, or should any action affecting the title thereto be commenced, Lessee shall cause such liens to be released of record within ten (10) business days after notice thereof. If Lessee desires to contest any such claim of lien, Lessee shall nonetheless cause such lien to be released of record by the posting of adequate security with a court of competent jurisdiction as may be provided by Colorado’s mechanic’s lien statutes. If Lessee shall be in default in paying any charge for which such mechanic’s lien or suit to foreclose such lien has been recorded or filed and shall not have caused the lien to be released as aforesaid, Lessor may (but without being required to do so) pay such lien or claim and any associated costs, and the amount so paid, together with reasonable attorneys’ fees incurred in connection therewith, shall be immediately due from Lessee to Lessor as Additional Rent.
15. CONDEMNATION
a. Complete Taking. If during the Term of this Lease, or any extension hereof, the whole or substantially all of the Premises shall be taken as a result of the exercise of power of eminent domain, this Lease shall terminate as of the date of vesting of title to the Premises or delivery possession, whichever shall first occur, pursuant to such proceeding. For the purpose of this Article 15, “substantially all of the Premises” shall be deemed to have been taken under any such proceeding that involves such an area, whether the area be improved with a building or be utilized for a parking area or for other use, that Lessee cannot reasonably operate in the remainder of the Premises the business being conducted on the Premises at the time of such proceeding.
b. Partial Taking. If, during the Term of this Lease, or any extension hereof, less than the whole or less than substantially all of the Premises shall be taken in any proceeding, so that Lessee can continue to reasonably operate in the remainder of the Premises the business being conducted on the Premises at the time of such proceeding, this Lease shall terminate as to the portion so taken. The Rent thereafter due and payable by Lessee shall be reduced in such proportion as the nature, value and extent of the part so taken bears to the whole of the Premises. Lessor shall, from the proceeds of the condemnation, promptly restore the Premises for the use of Lessee.
c. Award. Any award granted for either partial or complete taking regarding the Premises shall be the property of Lessor; provided that the foregoing shall not in any way restrict Lessee from asserting a claim in a separate proceeding against the condemning authority for any compensation or damages resulting from the taking of Lessee’s Property or any leasehold improvements of Lessee or for moving expenses or business relocation expenses incurred as a result of such taking.
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16. DESTRUCTION OF PREMISES
a. Termination Rights; Casualty Determination.
i. If the Premises are damaged by fire or other casualty which renders all or a Substantial Portion (as hereinafter defined) of the Premises unusable for Lessee’s normal business operations and the damage is so extensive that the Casualty Determination (as defined in Subparagraph iii below) determines that the Premises cannot, with the exercise of reasonable diligence, be made usable for Lessee’s normal operations within 180 days from the date of the Casualty Determination, then, at the option of Lessee exercised in writing to Lessor within 30 days of the Casualty Determination, this Lease shall terminate as of the occurrence of such damage; provided, however, Lessee may not terminate this Lease if the damage is caused by the intentional, criminal or otherwise uninsurable acts of Lessee or its agents, contractors or employees. For purposes of this Lease, “Substantial Portion” means twenty-five percent (25%) or more of the total area of the Premises.
ii. If the Premises are damaged by fire or other casualty and (A) the damage is so extensive that the Casualty Determination determines that rebuilding or repairs cannot be completed on or before the date which is 12 months prior to the expiration of the Term, or (B) the cost of rebuilding or repairs would exceed the insurance proceeds received or recoverable by Lessor and available for funding the cost of such rebuilding or repairs by more than ten percent (10%) of the replacement cost thereof, then, at the option of Lessor exercised in writing to Lessee within 30 days of the Casualty Determination or the date Lessor receives final confirmation of the determination of available insurance proceeds, as applicable, this Lease shall terminate as of the occurrence of such damage; provided, however, Lessor may not terminate this Lease if the damage is caused by the gross negligence or willful misconduct of Lessor or its agents, contractors or employees.
iii. The cost of rebuilding and repair and the number of days within which the Premises can be rebuilt or repaired (the “Estimated Repair Timeframe”) shall be determined by an independent contractor mutually acceptable to Lessor and Lessee (the “Casualty Determination”). The Casualty Determination shall be made within 60 days after the happening of the casualty.
iv. In the event this Lease is terminated pursuant to this Section 16a, Lessee shall pay Rent duly apportioned up to the time of such casualty and forthwith surrender the Premises and all interest therein to Lessor. Upon surrender of the Premises and all interest therein by Lessee, the parties shall be released from all obligations and liabilities arising thereafter, except for those obligations which expressly survive termination of this Lease.
b. Repair and Restoration.
i. If the Premises are damaged by fire or other casualty and this Lease cannot be or is not terminated pursuant to Section 16a above, then subject to the rights of any mortgagee, Lessor shall, at Lessor’s sole cost and expense, rebuild or repair the Premises (but excluding Lessee’s Property or any Lessee’s Work) in compliance with all applicable Laws and otherwise to substantially the condition that existed as of the Commencement Date; provided, however, Lessor shall not be required to expend more than the insurance proceeds received from such casualty plus ten percent (10%) of the replacement cost of the Premises. Notwithstanding the foregoing, in the event Lessor has not received final confirmation of the determination of available insurance proceeds and provided written notice thereof to Lessee within 90 days
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after the Casualty Determination, Lessee shall have the right to terminate this Lease by delivery of written notice thereof to Lessor within 15 days after receipt of Lessor’s notice and, upon surrender of the Premises and all interest therein by Lessee, the parties shall be released from all obligations and liabilities arising thereafter, except for those obligations which expressly survive termination of this Lease.
ii. In the event Lessor is required to rebuild and repair the Premises pursuant to this Section 16b, Lessor shall: (A) commence such rebuilding and repair within 45 days after the date Lessor receives final confirmation of the determination of available insurance proceeds, and (B) pursue diligently such rebuilding and repair to completion. If Lessor fails to repair and restore the Premises within 60 days after the Estimated Repair Timeframe, then Lessee shall have the right to terminate this Lease by delivery of written notice thereof to Lessor and, upon surrender of the Premises and all interest therein by Lessee, the parties shall be released from all obligations and liabilities arising thereafter, except for those obligations which expressly survive termination of this Lease.
iii. Rent shall xxxxx from the date of the casualty until the completion of the repair and restoration in the same proportion that the part of the Premises rendered unusable bears to the whole; provided, however, if the casualty is the result of the intentional, criminal or otherwise uninsurable acts of Lessee or its agents, contractors or employees, then the Rent will xxxxx during any such period of repair and restoration but only to the extent of any recovery by Lessor under its rental insurance related to the Premises. During any period of repair and restoration, Lessor shall use reasonable efforts to minimize disruption of Lessee’s use of the Premises.
17. DEFAULT PROVISIONS
The occurrence of any one or more of the following events shall constitute a default and breach of this Lease by Lessee:
a. Failure to Pay Base Rent. Lessee failing to pay the Base Rent herein reserved when due; unless the failure is cured within five (5) business days after written notice by Lessor; however, Lessee is not entitled to more than two notices of delinquent payments of Base Rent during any Lease Year and, if thereafter during that Lease Year any Base Rent is not paid when due, a default shall automatically occur;.
b. Failure to Pay Additional Rent. Lessee failing to make when due any other payments constituting Additional Rent required to be made by Lessee, where such failure continues for a period of fourteen (14) days following written notice from Lessor to Lessee.
c. Failure to Keep Covenants. Lessee failing to perform or keep any of the other terms, covenants and conditions herein contained for which it is responsible, and such failure continuing and not being cured for a period of thirty (30) days after written notice from Lessor to Lessee, or if such default is a default which cannot be cured within a 30 day period, Lessee’s failing to commence to correct the same within said 30 day period and thereafter failing to prosecute the same to completion with reasonable diligence.
d. Abandonment. Lessee abandoning the Premises.
e. Assignment for Benefit of Creditors. Lessee making any general assignment or general arrangement of its property for the benefit of its creditors.
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f. Bankruptcy. Lessee under this Lease shall file a petition under any section or chapter of the Bankruptcy Code, as amended, or under any similar law or statute of the United States or any state thereof, and the petition either remains undismissed for a period of sixty (60) days or results in the entry of an order for relief against Lessee which is not fully stayed within ten (10) days after entry, or Lessee shall be adjudged bankrupt or insolvent in proceedings filed against Lessee.
18. REMEDIES
In the event of an occurrence of default beyond applicable notice and cure periods as set forth herein, Lessor shall have the right to:
a. Terminate Lease. Terminate this Lease and end the Term hereof by giving Lessee notice of such termination, in which event Lessor shall be entitled to recover from Lessee at the time of such termination the present value of the excess, if any, of the amount of Base Rent reserved in this Lease for the then balance of the Term hereof over the then reasonable rental value of the Premises for the same period, both discounted to present value at the rate of five percent (5%) per annum. It is understood and agreed that the “reasonable rental value” shall be the amount of rental which Lessor may be expected to obtain as rent for the remaining balance of the initial Term or Renewal Term, whichever is applicable; or
b. Xxx monthly. Without resuming possession of the Premises or terminating this Lease, to xxx monthly for and recover all rents, other required payments due under this Lease, and other sums including damages and legal fees at any time and from time to time accruing hereunder; or
c. Repossess Premises. Reenter and take possession of the Premises or any part thereof and repossess the same as of Lessor’s former estate, and expel Lessee and those claiming through or under Lessee and remove the effects of both through process of law, without being deemed guilty in any manner of trespass and without prejudice to any remedies for Rent delinquencies or preceding Lease defaults. Under such circumstances, Lessor may bar entry to Lessee, and may, from time to time, without terminating this Lease, relet the Premises or any part thereof for such term or terms and at such rental or rentals and upon such other terms and conditions as Lessor may deem advisable, with the right to make alterations and repairs to the Premises, and such re-entry or taking of possession of the Premises by Lessor shall not be construed as an election on Lessor’s part to terminate this Lease unless a written notice of termination be given to Lessee or unless the termination thereof be decreed by a court of competent jurisdiction. In the event of Lessor’s election to proceed under this Subparagraph c, then such repossession shall not relieve Lessee of its obligation and liability under this Lease, all of which shall survive such repossession, and Lessee shall pay to Lessor as current liquidated damages the Base Rent and Additional Rent and other sums hereinabove provided which would be payable hereunder if such repossession had not occurred, less the net proceeds (if any) of any reletting of the Premises after deducting all of Lessor’s expenses in connection with such reletting, including but without limitation all repossession costs, brokerage commissions, legal expenses, attorney’s fees, expense of employees, alteration costs (including but not limited to any and all costs associated with Lessee’s failure to properly maintain the property as described in Section 10) and expenses of preparation for such reletting. Lessee shall pay such current damages to Lessor on the days on which the Base Rent would have been payable hereunder if possession had not been retaken, and Lessor shall be entitled to receive the same from Lessee on each such day. Notwithstanding anything to the contrary in this Section 18, Lessor shall use reasonable efforts to attempt to mitigate its damages and to attempt to promptly relet the Premises at a fair market rental.
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19. HOLD OVER
Any rule or law to the contrary notwithstanding, in the event Lessee remains in possession of the Premises or any part thereof subsequent to the expiration of the Term hereof and such holding over shall be with the consent of Lessor, it shall be conclusively deemed that such possession and occupancy shall be a tenancy from month-to-month only, at a monthly rent equal to 125% of the monthly rate for Base Rent and Additional Rent which was existing at the end of the Term hereof and, further, such possession shall be subject to all of the other terms and conditions (except any option to renew or option to purchase) contained in this Lease.
20. SUBORDINATION AND ESTOPPEL LETTER
This Lease is subject and subordinate to all mortgages and deeds of trust which now or hereafter may affect the Premises, and Lessee shall, within ten (10) business days after receipt thereof, execute and deliver upon demand of Lessor any and all instruments desired by Lessor subordinating this Lease in the manner requested by Lessor to any new or existing mortgage or deed of trust. Any holder of a mortgage or deed of trust may rely upon the terms and conditions of this paragraph. Lessor agrees it shall cause any present or future mortgagee or holder of a deed of trust to deliver to Lessee a non-disturbance agreement, in a form then in use by such present or future mortgagees or holders and which shall be reasonably acceptable to Lessee, providing that as long as Lessee is current and not in default, the mortgagee or holder shall not disturb the tenancy of Lessee. Further, Lessee shall at any time and from time to time, upon not less than ten (10) business days prior written notice from Lessor, execute, acknowledge and deliver to Lessor a statement in writing certifying 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 the then current actual knowledge of the employee of Lessee executing the certificate, any uncured defaults on the part of Lessor hereunder, or specifying such defaults, if any are claimed. Lessee shall attorn to any purchaser at any foreclosure sale or to any grantee or transferee designated in any deed given in lieu of foreclosure.
21. SURRENDER OF PREMISES
Upon the expiration or termination of the Term of this Lease, Lessee shall peaceably and quietly leave and surrender the Premises in as good condition as they are upon execution hereof, ordinary wear and tear and damage by fire or other casualty excepted. Lessee shall surrender and deliver the Premises broom clean and free of Lessee’s Property. Provided Lessee is not in default beyond any applicable period for notice and cure, it shall have the right to remove all of Lessee’s Property, and Lessee shall repair any damage to the Premises caused by such removal. Further, in the event Lessee does not remove any of Lessee’s Property, or any additions or alterations made to the Premises during the Term of this Lease that Lessor indicated would need to be removed at the time it approved the plans therefor, then Lessor may, at its option, either (a) require Lessee to remove any such Lessee’s Property or alterations or additions and restore the Premises to the condition as existed at the commencement of the Lease, ordinary wear and tear and damage by fire or other casualty excepted, or (b) retain the same. If, following request for removal of Lessee’s Property, Lessee fails to do so, then the costs incurred by Lessor to remove such property and repair the Premises shall be recoverable by Lessor as Additional Rent due under this Lease. Lessee shall not be otherwise required to remove any improvements, alterations or additions, or to restore the Premises to the condition they were in prior to installation of the same.
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22. NOTICES
All notices required or permitted under this Agreement shall be given by registered or certified mail, postage prepaid, by recognized overnight courier, or by hand delivery, directed as follows:
If intended for Lessee, to:
XXXXX’X LIQUID GOLD-INC.
0000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx
E-mail: xxxxxxx@xxxxxx.xxx
with a copy to:
XXXXX’X LIQUID GOLD-INC.
0000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxxxxx
E-mail: xxxxxxxxxx@xxxxxx.xxx
If intended for Lessor, to:
Havana Gold, LLC
0000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx
E-mail: xxxxxxxxxx@xxxxxxxxxxxxxx.xxx
Any notice delivered by mail in accordance with this Section shall be deemed to have been delivered (i) upon being deposited in any post office or postal box regularly maintained by the United States postal service, but, in the case of intended recipients who have an e-mail address listed above, only if concurrently with that deposit a copy of the notice is sent by e-mail to that intended recipient, and if that copy is not sent by e-mail to any intended recipient who has an e-mail address listed above, the notice shall not be deemed to have been delivered until actually received by the intended recipient; or (ii) the next business day after being deposited with a recognized overnight courier service; or (iii) upon receipt or refusal to accept delivery if hand-delivered. Either party, by notice given as above, may change the address to which future notices or copies of notices may be sent.
23. TIME OF THE ESSENCE
Time is of the essence hereof.
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24. QUIET ENJOYMENT
Lessor represents and warrants that:
a. Authority. Lessor has the right to enter into and make this Lease.
b. Peaceful Possession. Lessee, upon paying the Rent herein reserved and upon performing all of the terms and conditions of this Lease on its part to be performed, shall at all times during the Term herein demised peacefully and quietly have, hold and enjoy the Premises.
Lessee accepts the Premises subject to all zoning ordinances and regulations pertaining to the Premises, without responsibility or warranty by Lessor, and further Lessee accepts the Premises subject to easements, rights-of-way, restrictive covenants and reservations of record.
25. RIGHT TO INSPECT OR SHOW PREMISES
Lessor, or Lessor’s agent and representative, shall have the right to enter into and upon the Premises or any part thereof at all reasonable hours for the purpose of examining the same, upon reasonable prior telephonic notice to Lessee and accompanied by a representative of Lessee (except in cases of actual or suspected emergency, in which case no prior notice and no accompaniment by a Lessee representative shall be required).
Lessor, or Lessor’s agent and representative, shall have the right to show the Premise to prospective purchasers, or during the last six (6) months of the Term to prospective tenants, upon reasonable prior notice to Lessee and during business hours. During the 90-day period prior to the expiration of this Lease, Lessor, or Lessor’s agent and representative, shall have the right to place the usual “for rent” or “for sale” notices on the Premise, and Lessee agrees to permit the same to remain thereon without hindrance or molestation.
26. LIMITATIONS ON LESSOR’S LIABILITY
Notwithstanding anything to the contrary contained in this Lease, in the event of any default or breach by Lessor with respect to any of the terms, covenants and conditions of this Lease to be observed, honored or performed by Lessor, Lessee shall look solely to the estate and property of Lessor in the land and Building owned by Lessor, including proceeds of sale, insurance, condemnation and rental income from the Building, for the collection of any judgment (or any other judicial procedures requiring the payment of money by Lessor) and no other property or assets of Lessor shall be subject to levy, execution, or other procedures for satisfaction of Lessee’s remedies.
27. SIGNS
a. Exterior Signs. Lessee shall not place or suffer to be placed on the exterior walls of the Premises or upon the roof or any exterior door or wall or on the exterior or interior of any window thereof any sign, awning, canopy, marquee, advertising matter, decoration, letter or other thing of any kind without the prior written consent of Lessor. Lessor acknowledges and agrees that Lessee may, subject to the approval of the appropriate governmental authorities and Lessor (with respect to size, color, type, format, design and location), install a sign with Lessee’s logo on the Building; provided, however, the foregoing
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shall not be in place of or in derogation of any of Lessor’s Building signage and the failure or refusal of any governmental entity to approve Lessee’s logo sign shall not constitute an event of default, a claim for damages or a ground for Lessee to terminate this Lease. In addition, if Lessor installs a monument sign outside of the Building, Lessee shall be permitted to install a sign with Lessee’s logo on such monument sign, which shall be at least as prominent as the sign of any other tenant. Permits for Lessee’s signs and their installation shall be obtained by Lessee at its expense. All signs shall be constructed and installed at Lessee’s expense. Signs shall be permitted only within the areas designated by Lessor. All penetrations of the Building structure required for sign installation shall be neatly sealed in watertight condition and properly maintained. Lessee shall cause to be repaired any damage caused by its sign contractor or sign installation. Other than the exterior Building sign permitted above, Lessor hereby reserves the exclusive right to the use for any purpose whatsoever of the roof and exterior of the walls of the Premises or the Building. In the event Lessee shall install any sign which has not been approved by Lessor, Lessor shall have the right and authority without liability to Lessee to enter upon the Premises, remove and store the subject sign and repair all damage caused by the removal of the sign. All costs and expenses incurred by Lessor in effecting such removal and storage shall be paid by Lessee as Additional Rent within thirty (30) days after presentation of an invoice therefor. Lessor reserves the right to temporarily remove Lessee’s sign if necessary during any period when Lessor repairs, restores, constructs or renovates the Premises or the Building.
b. Interior Signs. Except as otherwise herein provided, Lessee shall have the right, at its sole cost and expense, to erect and maintain within the interior of the Premises all signs and advertising matter customary or appropriate in the conduct of Lessee’s business; provided that no advertising placards, banners, pennants, names, insignia, trademarks, or other descriptive material shall be affixed or maintained upon the glass panes and supports of the windows and doors, or upon the exterior walls of the Building. Lessee shall upon demand of Lessor immediately remove any sign, advertisement, decoration, lettering or notice which Lessee has placed or permitted to be placed in, upon or about the Premises which is visible from the exterior thereof and which Lessor reasonably deems objectionable or offensive, and if Lessee fails or refuses so to do, Lessor may enter upon the Premises and remove the same at Lessee’s cost and expense. In this connection, Lessee acknowledges that the Premises is a part of the integrated office areas of the Building and agrees that control of all signs by Lessor is essential to the maintenance of uniformity, propriety and the aesthetic values in or pertaining to the Building. Lessor shall install a directory in the lobby of the Building that displays Lessee’s name and location within the Building, as well as the names and locations of other office tenants.
28. MISCELLANEOUS
a. Choice of Law. This Lease has been executed and delivered in the State of Colorado and shall be construed in accordance with the laws of the State of Colorado.
b. Headings and Captions. The parties mutually agree that the heading and captions contained in this Lease are inserted for convenience of reference only and are not to be deemed part of or to be used in construing this Lease.
c. Binding Effect. The covenants and agreements herein contained shall be binding upon and inure to the benefit of both Lessor and Lessee and their respective successors and assigns.
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d. Construction of terms. Words of any gender used in this Lease shall be held to include any other gender, and words in the singular shall be held to include the plural, as the identity of Lessor or Lessee requires.
e. Amendments. This Lease may be modified or amended only by written instrument executed by all of the parties hereto.
29. NO WAIVER
No waiver by either party of any provision hereof shall be deemed a waiver of any other provisions hereof or of any subsequent breach by the other party of the same or any other provision. Lessor’s consent to or approval of any act shall not be deemed to render unnecessary the obtaining of Lessor’s consent to or approval of any subsequent act by Lessee. The acceptance of Rent hereunder by Lessor shall not be a waiver of any preceding breach by Lessee of any provisions hereof, other than the failure of Lessee to pay the particular Rent so accepted, regardless of Lessor’s knowledge of such preceding breach at the time of acceptance of such Rent.
30. VENUE AND ATTORNEY’S FEES
The parties hereto agree that (i) the venue and jurisdiction of any litigation pertaining to the enforcement or interpretation of this Lease shall be vested exclusively in the District Court for the City and County of Denver, Colorado, and (ii) the prevailing party in such litigation shall be entitled to recover its reasonable attorney fees and costs in an amount to be determined by the court. Each of the parties hereto does hereby WAIVE TRIAL BY JURY in any action or proceeding of any kind or nature pertaining to the enforcement or interpretation of this Lease in which action either of the parties (or their respective assignees or successors in interest) are joined as litigants.
31. INTEREST ON PAST DUE OBLIGATIONS
Any amount due to Lessor not paid when due shall bear interest at the rate of eight percent (8%) per annum from the date due; provided, however, that any such payment of interest shall not excuse or correct any default by Lessee under this Lease.
32. MEMORANDUM OF LEASE
Either party, upon request from the other party, shall execute in recordable form a short form Memorandum of Lease, which Memorandum of Lease shall only contain the names of the parties and the Commencement Date and date of expiration of the Term of this Lease (or any options which may be granted hereunder), and the legal description of the Premises.
33. SEVERABILITY
If any sentence, paragraph or article of this Lease is held to be illegal or invalid, this shall not affect in any manner those other portions of the Lease not illegal or invalid and this Lease shall continue in full force and effect as to those provisions.
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34. CONFIDENTIALITY
Lessor and Lessee acknowledge that the terms and conditions of this Lease and each party’s Proprietary Information are to remain confidential for each party’s benefit, and may not be disclosed by Lessor or Lessee to anyone, by any manner or means, directly or indirectly, without the other party’s prior written consent, and the consent by such party to any disclosures shall not be deemed to be a waiver on the part of such party of any prohibition against any future disclosure. However, Lessor or Lessee may disclose copies of the Lease to prospective lenders or purchasers of all or any portion of the Premises or Common Areas or to potential lenders to or investors in Lessor’s or Lessee’s businesses and to any governmental authorities as required by applicable Laws without prior consent, and both may provide copies to their respective accountants, attorneys and managing employees, as reasonably necessary for each party’s business purposes or in connection with the enforcement of this Lease, without such prior consent, provided that, upon such disclosure, such party’s accountants, attorneys and managing employees will be bound by the terms of this Section. Lessor and Lessee shall indemnify, defend upon request, and hold the other party harmless from and against all costs, damages, claims, liabilities, expenses, losses, court costs, and reasonable attorneys’ fees suffered or claimed against the non-breaching party, its agents, servants, and employees, based in whole or in part upon the breach of this Section by a party, its agents, servants, and employees. For purposes hereof, the term “Proprietary Information” means all information provided by the disclosing party to the receiving party in accordance with this Lease and during the Term, notwithstanding the form of the information, and includes by way of example, but without limitation, corporate and financial information, data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, reports, customer lists, studies, findings, inventions and ideas. Information which is not labeled as proprietary, whether presented in writing, media or orally, shall nonetheless be considered Proprietary Information if a reasonable person in a position of the receiving party would presume confidentiality of such information even without such a label, identification or confirmation, but the burden of proof shall be on the disclosing party to demonstrate the confidential nature and extent of the disclosure of the information.
Notwithstanding the foregoing, Proprietary Information shall not include any information to the extent that the information: (a) is in or enters the public domain through no fault of the receiving party; (b) is known to the receiving party as of the date of this Lease, as evidenced by the written records of the receiving party; (c) becomes known to the receiving party, subsequent to such disclosure, without similar restrictions from an independent source having the right to convey it; or (d) is developed by the receiving party independent of any disclosure under this Lease.
In the event of any breach of this Section, the disclosing party may be irreparably and immediately harmed and may not be made whole by monetary damages. As a result, in addition to any other remedy to which the disclosing party may be entitled under this Lease, the disclosing party shall be entitled to an injunction or injunctions to prevent breaches of this Section and to compel specific performance of this Section, without the need for proof of actual damages.
The obligations of Lessee under this Section will survive for a period of two years after the expiration or earlier termination of this Lease; the obligations of Lessor under this Section will survive for a period of two years after the earlier to occur of Lessor’s transfer of the Premises and Common Areas and its interest in this Lease or the expiration or earlier termination of this Lease.
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IN WITNESS WHEREOF the parties have set their hands and seals the date and year first written above.
Lessor: Havana Gold, LLC, a Colorado limited liability company
Signature: /s/ Xxxxxx Xxxxxxxxx.
Its: Manager
Printed Name: Xxxxxx Xxxxxxxxx
LESSEE: Xxxxx’x Liquid Gold-Inc., a Colorado corporation
Signature: Xxxx X. Xxxxxxxxx.
Its: President & CEO
Printed Name: Xxxx X. Xxxxxxxxx
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Exhibit A
Premises
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