OFFICE LEASE
Exhibit 10.1
THIS
LEASE (the "Lease") is made as of February 21, 2008, by and between HTD-
Ptarmigan
Place, LLC, a Delaware limited liability company (the "Landlord") and the Tenant
named in the Schedule below. The term "Project" means the building (the
"Building") known as “Ptarmigan at Cherry
Creek” and the land located at 0000 Xxxxxx Xxxxx Xxxxx
Xxxxx. Xxxxxx. Xxxxxxxx
00000. "Premises" means that part of the Project leased to
Tenant described in the Schedule and approximately depicted in outline or
cross-hatching on Appendix A.
The
following schedule (the "Schedule") is an integral part of this Lease. Terms
defined in this Schedule shall have the same meaning throughout the
Lease.
SCHEDULE
2. Premises:
Suite
995
3. Rentable
Area of the Premises: 1.487
rsf
4. Tenant's
Proportionate Share: 0.36% (based upon a
total of 418,630 rentable sq. ft. in the Building)
5. Security
Deposit: $2.602.25
6. Tenant's
Broker for this Lease: None.
7. Landlord's
Broker for this Lease: None.
9. Term:
the period of time commencing on the Commencement Date and expiring on the last
day of the month that is sixty (60) months thereafter, or April30.2Q13 (the
'Termination Date").
10. Guarantor: None,
11. Base
Year: 2008
12. Base
Rent:
Period
|
Annual
Base Rent Rate
per
Rentable Square Foot
|
Annualized
Base Rent
|
Monthly
Installment
of
Base Rent
|
Months
1-12
|
$21.00
|
$31,227.00
|
$2,602.25
|
Months
13-24
|
$22.00
|
$32,714.00
|
$2,726.17
|
Months
25-36
|
$23.00
|
$34,201.00
|
$2,850.08
|
1. SUITE
AND PARKING.
1.1 Lease. On the terms stated in
this Lease, Landlord leases the Premises to Tenant, and Tenant leases the
Premises from Landlord, for the Term beginning on the Commencement Date and
ending on the Termination Date unless sooner terminated pursuant to this
Lease.
1.2 Parking. Tenant and its
employees and invitees shall have the privilege to use two (2) reserved spaces
and one (1)
non-reserved space in the parking garage under the Building at a rate of $8,500
per month per reserved space and $75.00 per month per non-reserved space. Tenant
shall pay the charges for such parking as Additional Rent each month regardless
of whether Tenant is using such spaces. Landlord may from time to time increase
any or all applicable parking rates to market rates for independent use of
parking spaces by giving Tenant ten (10) days advance notice of each such
increase. Tenant shall not at any time use or permit its employees or other
agents to use any parking spaces in excess of the number thereof allocated to
Tenant without Landlord's prior written consent, which Landlord may withhold in
its sole discretion. Neither Tenant nor its employees or any other agents shall
occupy any space designated as visitor parking or reserved for the use of other
tenants. Landlord may at any time, at its sole option, direct Tenant to use
specific parking spaces or areas within the parking garage, and if so directed,
Tenant shall use only such spaces or areas. Tenant's customers and invitees
shall use only spaces in the parking lot that are designated as visitor parking
spaces, and Tenant shall not permit its customers or invitees to use parking
spaces allocated to tenants of the Building or posted for the exclusive use of
customers of other tenants.
2.
1 Types of Rent. Tenant
shall pay all Rent from time to time due hereunder in the form of a check
delivered to Landlord at the following address: HTD-Ptarmigan Place. LLC.
c/o Hamilton Partners. Inc., 000 Xxxx Xxxxxxxxx Xxxxx 000 Xxxxxx, XX
00000. or at such other address as Landlord may designate in writing from
time to time. Tenant shall pay the following kinds of Rent:
2
''Excess
Taxes") over the Taxes for the Base Year (the "Base Taxes"), paid monthly in
advance in an estimated amount. A definition of Taxes and the method for billing
and payment of Tax Share Rent are set forth below. If the size of the Building
changes due to fire, other casualty, or condemnation, Base Taxes shall be
adjusted proportionately for calculations of Tax Share Rent for the period of
time following such change in size of the Building.
Within
ten (10) days after receiving the original or revised estimate from Landlord
setting forth (i) an estimate of Operating Costs for a particular calendar year,
(ii) the Base Operating Costs, and (iii) the resulting estimate of Excess
Operating Costs for such calendar year, Tenant shall pay Landlord one-twelfth
(l/12th) of Tenant's Proportionate Share of the estimated Excess Operating
Costs, multiplied by the number of months that have elapsed in the applicable
calendar year prior to the date of such payment including the current month,
minus payments previously made by Tenant for the months elapsed. On the first
day of each month thereafter, Tenant shall pay Landlord one-twelfth (l/12th) of
Tenant's Proportionate Share of this estimate, until a new estimate becomes
applicable.
Within
ten (10) days after receiving the original or a revised estimate from Landlord
setting forth (i) an estimate of Taxes for a particular calendar year, (ii) the
Base Taxes, and (iii) the resulting estimate of Excess Taxes for such calendar
year, Tenant shall pay Landlord one-twelfth (l/12th) of Tenant's Proportionate
Share of the estimated Excess Taxes, multiplied by the number of months that
have elapsed in the applicable calendar year to the date of such payment
including the current month, minus payments previously made by Tenant for the
months elapsed. On the first day of each month thereafter, Tenant shall pay
Landlord one-twelfth (l/12th) of Tenant's Proportionate Share of this estimate,
until a new estimate becomes applicable.
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(ii) the
Base Operating Costs, (iii) the amount of Operating Cost Share Rent due from
Tenant, and (iv) the amount of Operating Cost Share Rent paid by Tenant. Within
twenty (20) days after such delivery, Tenant shall pay to Landlord the amount
due (clause (iii) above) minus the amount paid (clause (iv) above). If the
amount paid exceeds the amount due, Landlord shall apply the excess to Tenant's
payments of estimated Operating Cost Share Rent next coming
due,
(a) Included
Operating Costs. "Operating Costs"
means all expenses, costs and disbursements of any kind other than Taxes, paid
or incurred by Landlord in connection with the management, maintenance,
operation, insurance, repair and other related activities in connection with any
part of the Project and of the personal property, fixtures, machinery,
equipment, systems and apparatus used in connection therewith, including the
cost of providing those services required to be furnished by Landlord under this
Lease. Operating Costs shall also include the costs of any capital improvements
which are intended to reduce Operating Costs or improve safety, and those made
to keep the Project in compliance with governmental requirements applicable from
time to time (collectively, 'Included Capital Items"): provided, that the costs
of any Included Capital Item shall be amortized by Landlord, together with an
amount equal to interest at eleven percent (11%) per annum, over the estimated
useful life of such item regardless of whether such item remains in service a
longer or shorter period, and only the amortized amount for any calendar year
shall be included in Operating Costs for such calendar
year.
If the
Project is not fully occupied during any portion of any calendar year, Landlord
may adjust (an '"Equitable Adjustment") Operating Costs which are affected by
the occupancy rate for the particular calendar year to reflect an occupancy of
95% of the Building rentable area, provided however that if Landlord makes such
an Equitable Adjustment, and if during the Base Year the Project is not fully
occupied, then Landlord shall make this same adjustment with respect to the Base
Year hereunder. This Equitable Adjustment shall apply only to Operating Costs
which are variable and therefore increase as occupancy of the Project increases.
Landlord may incorporate the Equitable Adjustment in its estimates of Operating
Costs.
If
Landlord does not furnish any particular service the cost of which would have
constituted an Operating Cost to a tenant other than Tenant who has undertaken
to perform such service itself, Operating Costs shall be increased by the amount
which Landlord would have incurred if it had furnished the service to such
tenant.
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(1) costs
of alterations of tenant premises;
(2) costs
of capital improvements other than Included Capital Items;
(3) interest
and principal payments on mortgages or any other debt costs, or rental payments
on any ground lease of the Project;
(4) real
estate brokers' leasing commissions;
(5) legal
fees, space planner fees and advertising expenses incurred with regard to
leasing the Building or portions thereof;
(6) any
cost or expenditure for which Landlord is reimbursed, by insurance proceeds or
otherwise, except by Operating Cost Share Rent;
(7) the
cost of any service furnished to any office tenant of the Project which is
specifically excluded from services Landlord is obligated to provide under this
Lease;
(8) depreciation
(except on any Included Capital Items);
(9) legal
or other professional fees incurred to enforce leases against
tenants;
(10) legal
and auditing fees incurred by Landlord in connection with forming, maintaining,
and operating the entity that comprises Landlord, but not legal and auditing
fees directly related to the management and operation of the Building and not
otherwise excluded from operating costs in this Section 2.3(b):
and
(11) the
wages of any employee for services not related directly to the management,
maintenance, operation and repair of the Building.
5
6
of
Landlord when paid. The provisions of this Section 2 shall
survive the expiration or other termination of this Lease.
4. PROJECT
SERVICES. Landlord shall furnish services as
follows:
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reasonably
designated by Landlord. Such objects shall be taken to or from the Premises by
freight elevator and Tenant shall pay for freight elevator service at rates
established by Landlord as Additional Rent.
4.5
Janitorial Service.
Landlord shall furnish janitorial service as generally provided to other tenants
in the Building.
5.1
Landlord's Consent and
Conditions. Landlord shall have the right to review and approve or
disapprove in Landlord's reasonable judgment (a) all plans and specifications
for the any improvements or alterations to the Premises proposed to be made by
Tenant (the "Work"), (b) Tenant's general contractor for the Work, and (c) all
other material arrangements
8
with
respect to the Work. Landlord may withhold Landlord's approval of work in
Landlord's absolute discretion if the proposed Work would (x) impact the base
structural components or systems of the Building, (y) impact any other tenant's
premises, or (z) be visible from outside the Premises. All Work shall be
performed in strict conformance with the plans and specifications therefore
approved by Landlord. Tenant shall pay for the cost of all Work. All Work shall
be performed in accordance with Landlord's then-current policies, rules and
requirements for tenant construction projects, which policies, rules and
requirements Landlord may establish and modify from time to time. Tenant shall
pay Landlord, as Additional Rent, an administrative fee of five percent (5%) of
the costs of Tenant's Work.
9
below
(unless Landlord at the time it gives its consent to the performance of such
construction expressly waives in writing the right to require such
removal).
6.
USE OF PREMISES. Tenant shall use the
Premises only for general office purposes. Tenant shall not allow any use of the
Premises which will increase the cost of coverage of Landlord's insurance on the
Project. Tenant shall not allow any inflammable or explosive liquids or
materials to be kept on the Premises or use the Premises in any way that
violates the provisions of Section 27 below or any Governmental Requirement
pertaining to Hazardous Substances. Tenant shall not allow any use of the
Premises which would cause the value or utility of any part of the Premises to
diminish or would interfere with any other tenant or with the operation of the
Project by Landlord. Tenant shall not permit any nuisance or waste upon the
Premises, or allow any offensive noise or odor in or around the Premises. If any
governmental
10
authority
shall deem the Premises to be a "place of public accommodation" under the
Americans with Disabilities Act or any other comparable law as a result of
Tenant's use, Tenant shall either modify its use to cause such authority to
rescind its designation or be responsible for any alterations, structural or
otherwise, required to be made to the Building or the Premises under such laws.
Tenant shall not use the Premises for any of the uses for which Landlord has
granted exclusive rights to other Tenants of the Project, including those uses
identified on Appendix
C hereto.
Except as
to any matter for which Tenant is obligated to indemnify Landlord above,
Landlord shall indemnify, defend and hold harmless Tenant and its officers,
directors, employees and agents against all claims, liabilities, and expenses,
including reasonable attorney fees and costs, suffered or claimed by any person
and resulting solely from the gross negligence or willful misconduct of Landlord
or any of Landlord's employees or agents. Landlord's obligations under this
section shall survive the expiration or earlier termination of this
Lease.
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(a) Commercial
general liability insurance drawn on an "occurrence" form, with (a) contractual
liability coverage including the indemnification provisions contained in this
Lease, (b) a severability of interest endorsement, (c) limits of not less than
One Million Dollars ($1,000,000) combined single limit per occurrence, not less
than One Million Dollars ($1,000,000) in the aggregate for bodily injury,
sickness or death, and property damage, and umbrella coverage of not less than
One Million Dollars ($1,000,000).
(b) Property
insurance against "All Risks" of physical loss covering an amount not less than
the replacement cost of (i) all leasehold improvements in and to the Premises
made at Tenant's expense, (ii) all floor and wall coverings in the Premises, and
(iii) Tenant's trade fixtures, equipment and other personal property from time
to time situated in the Premises. The proceeds of such insurance shall be used
for the repair or replacement of the property so insured, except that if not so
applied or if this Lease is terminated following a casualty, the proceeds
applicable to the leasehold improvements shall be paid to Landlord and the
proceeds applicable to Tenant's personal property shall be paid to
Tenant.
(c) Workers'
compensation or similar insurance in form and amounts required by law and
employer's liability coverage in not less than $500,000 per accident, per
employee.
Tenant's
insurance shall be primary and not contributory to that carried by Landlord, its
agents, or any Mortgagee or Master Lessor. Landlord, and if any, Landlord's
building manager or agent and any Master Lessor or Mortgagee shall be named as
additional insureds with respect to the commercial general liability insurance
required of the Tenant in Section 8.3(a).
Landlord may from time to time designate other persons or entities which Tenant
shall cause to be named as additional insureds of Tenant's insurance policies.
The company or companies writing any insurance which Tenant is required to
maintain under this Lease, as well as the form of such insurance, shall at all
times be subject to Landlord's approval, and any such company shall be licensed
to do business in the state in which the Building is located. Such insurance
companies shall have a current A.M. Best rating of A / VI or better. Landlord,
its agents, and employees make no representation that the limits of liability
specified to be carried by Tenant pursuant to this Section 8.3 are
adequate to protect Tenant, and in no event shall the limits of liability
specified herein limit Tenant's liability under this Lease. If Tenant believes
that any of such insurance coverage is inadequate, Tenant will obtain such
additional insurance coverage as Tenant deems adequate, at Tenant's sole
expense.
12
and
conditions as are normally carried by reasonably prudent owners of properties
similar to the Project.
(a) If
a fire or other casualty causes substantial damage to the Building or the
Premises, and insurance proceeds have been made available to Landlord to repair
the damage by the insurer and any Master Lessor or Mortgagee, then Landlord
shall engage an architect to certify within one (1) month of the casualty to
both Landlord and Tenant the amounts of time needed to restore (i) the Building
and (ii) the Premises to tenantability, using standard working
methods.
(b) (1) If
the time certified by such architect with respect to the Premises exceeds one
hundred eighty (180) days from the beginning of the restoration, or if the
restoration would begin during the last eighteen (18) months of the Lease, then
either Landlord or Tenant may terminate this Lease by giving notice to the other
within thirty (30) days of the date Landlord gives Tenant notice of the
architect's certification.
(2) If the time certified by such architect
with respect to the Building (but not the Premises) exceeds one hundred eighty
(180) days from the beginning of the restoration, or if the restoration would
begin during the last eighteen (18) months of the Lease, Landlord may terminate
this Lease by giving notice to Tenant within thirty (30) days of the date
Landlord gives Tenant notice of the architect's
certification.
(c) If
insurance proceeds are not made available to Landlord by the insurer or any
Master Lessor or Mortgagee or if the casualty is the Building and Landlord
determines it would be uneconomical to reconstruct or repair the damage, then
Landlord may terminate this Lease by notice to Tenant within thirty (30) days
after the casualty. The termination shall be effective thirty (30) days from the
date of the notice and Rent shall be paid by Tenant to that date, with an
abatement for any portion of the Premises which has been rendered untenantable
by the casualty.
9.2
Restoration. If a casualty causes damage to the Building or the Premises
but this Lease is not terminated for any reason, then subject to the rights of
any Mortgagees or Master Lessors, Landlord shall obtain the applicable insurance
proceeds and diligently restore the Building and the Premises to the extent of
such proceeds. Landlord shall have the right to adapt the restoration of the
Premises to comply with Governmental Requirements that are then
in
13
effect.
Landlord shall not be required to restore Tenant's personal property or trade
fixtures or any Work performed by or on behalf of Tenant pursuant to Section 5.1 above.
Rent shall be abated on a per diem basis during the restoration for any portion
of the Premises which is untenantable, except to the extent that Tenant's
negligence, breach of this Lease, or intentional conduct caused the
casualty,
11. RIGHTS
RESERVED TO LANDLORD. In addition to Landlord's other rights provided by
this Lease or by law, Landlord reserves the following rights, which Landlord may
exercise at any time without liability to the Tenant of any kind, and Tenant
shall comply and cooperate with Landlord in Landlord's exercise of such rights
and Landlord's decisions with respect to such rights:
11.1 Name. To change the name or
street address of the Building.
14
11.2 Signs,
To install and maintain any signs on the exterior and in the interior of the
Building. Tenant shall not display any signs anywhere on the Project, the
Building, or in parts of the Premises visible from outside the
Premises.
(a) the
size of the New Premises is at least equal to the size of the Old
Premises;
(b) Landlord
pays the reasonable cost of moving the Tenant and improving the New Premises to
the standard of the Old Premises, Tenant shall cooperate with Landlord in all
reasonable ways to facilitate the move, including supervising the movement of
files or fragile equipment, designating new locations for furniture, equipment
and new telephone and electrical outlets, and determining the color of paint in
the New Premises.
15
and any
other expenses incurred. Landlord may do or permit any work on any nearby
building, land, street, alley or way.
11.13
Other Actions. To take
any other action which Landlord deems reasonable in connection with the
operation, maintenance or preservation of the Building.
12.1
Events of Default. Any of the following shall constitute an Event of
Default:
(b) Specific
Default. Tenant defaults in any of its obligations under Sections 5.3 (No
Liens), 18
(Assignment and Sublease); 20 (Estoppel
Certificate); or 27 (Hazardous
Substances) of this Lease; or
(1) Tenant
commences any proceeding under any law relating to bankruptcy, insolvency,
reorganization or relief of debts, or seeks appointment of a receiver, trustee,
custodian or other similar official for the Tenant or for any substantial part
of its property, or any such proceeding is commenced against Tenant and either
remains undismissed for a period of thirty days or results in the entry of an
order for relief against Tenant which is not fully stayed within seven days
after entry;
16
(2) Tenant
becomes insolvent or bankrupt, does not generally pay its debts as they become
due, or admits in writing its inability to pay its debts, or makes a general
assignment for the benefit of creditors;
(3) Any
third party obtains a levy or attachment under process of law against Tenant's
leasehold interest; or
(e) Vacation
or Abandonment Default. Tenant vacates or abandons the Premises.
13. LANDLORD
REMEDIES. Upon the occurrence of an Event of Default, Landlord shall have
the option to pursue any one or more of the remedies available at law, in
equity, or under this Lease, without any further notice or demand whatsoever,
including without limitation the remedies set forth in the following Sections 13.1. 13.2,
and I3..3:
13.1 Terminate
Lease. Landlord may terminate this Lease, effective at such time as may
be specified by notice to Tenant, in which event:
(a) Tenant
shall remain liable to Landlord for all obligations under this Lease accruing
through the time of termination including the full amount of the current month's
installment of Rent (unless previously paid), which shall immediately become due
and payable, together with any arrears unpaid.
(b) Landlord
may, with or without process of law, reenter upon and take possession of the
Premises.
(c) Landlord
may at Tenant's expense, at any time Landlord is entitled to possession of the
Premises, remove and store such goods, chattels, fixtures, trade fixtures, and
equipment of Tenant as are in the Premises in any manner Landlord may, in its
discretion, determine, and Landlord shall have no liability to Tenant for such
removal and storage, and Tenant shall reimburse Landlord for all costs incurred
by Landlord in connection therewith.
(d) Landlord
may recover from Tenant as damages, for the loss of income of Landlord expected
to be derived from the Lease, the amounts (if any) by which (i) the Rent which
would have been payable under this Lease exceeds (ii) the remainder obtained
when all of Landlord's Reletting Costs, as hereinafter defined, which have not
been paid by Tenant to Landlord are deducted from the payments (if any) received
by Landlord from reletting the Premises. Such amounts shall be payable on the
first day of each month during the period which would have constituted the
unexpired portion of the Term had it not been terminated. As used herein,
"Reletting Costs" shall mean all costs and expenses, including, without
limitation, reasonable attorneys' fees, brokerage or other commissions, costs of
repair or remodeling of the Premises, of subdividing the Premises, or of
combining all or any portion or portions of the
17
Premises
with other premises in any manner Landlord shall deem appropriate, lease
assumption costs, and the costs of other tenant inducements, which Landlord may
incur in connection with any reletting of the Premises pursuant to this Section
13.
(e) Landlord
may, at its option, at any time, declare immediately due and payable the
unamortized portion of any improvement allowance and other out-of-pocket costs
(including without limitation brokerage commissions) incurred by Landlord in
connection with this Lease, all of which shall, upon such declaration,
immediately be due and payable in full by Tenant. Such amortization shall be
computed on a straight-line basis over the Term of the Lease with interest at
the rate of 9% per annum beginning with the first full calendar month of the
Term, but without payments being amortized during any part of the Term in which
Rent may be abated. To the extent any portion of such unamortized costs is paid
by Tenant pursuant to this Subsection, such portion shall be excluded from the
amount of Rent which would have been otherwise payable hereunder for purposes of
calculating Landlord's damages under this Section
13.
(f) Landlord
may recover from Tenant, as damages, a lump sum which is the remainder obtained
when the amount determined pursuant to the following Subsection (1) is
subtracted from the amount determined pursuant to the following Subsection
(2).
(1) The
Rent which would have been payable under this Lease from the effective date of
termination through the date on which the Term would have expired had this Lease
not been terminated, reduced to present value by the per annum rate which is one
percent per annum higher than the then-current discount rate of the Federal
Reserve Bank in San Francisco (the "PV Rate"), compounded
annually,
(2) The
present value, calculated by applying the PV Rate thereto, compounded annually,
of the fair rental value of the Premises from the effective date of termination
through the date on which the Term would have expired had the Lease not been
terminated, less the Reletting Costs incurred by Landlord which have, as of such
effective date, not yet been paid by Tenant to Landlord, also adjusted to
present value at such rate.
(a) Landlord
may, with or without process of law, retake possession of the
Premises.
(b) Landlord
may remove and deal with Tenant's goods, chattels, fixtures, trade fixtures,
equipment, and other property as permitted by Section 13.1
(c).
(c) Tenant's
obligations under this Lease (including the obligation to pay Rent on the dates
specified in this Lease) shall continue unaffected for the Term or until such
earlier time as Landlord may, at its option, elect to terminate this Lease which
Landlord may, at its option, do at any time.
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(d) Without
being deemed to have elected to terminate this Lease, Landlord may relet the
Premises in accordance with Section 1.3.5 below
for the account of Tenant, in the name of Landlord or in the name of Tenant on
such terms and conditions and to such tenants as Landlord may, in its
discretion, determine. Landlord shall be entitled to remodel and repair the
Premises, to subdivide the Premises, or to combine all or any portion or
portions of the Premises with other premises in any manner which Landlord shall
deem appropriate in order to accomplish such reletting; and Tenant shall
reimburse Landlord, on demand, for all costs and expenses in connection with
such repair or remodeling and reletting. Notwithstanding Landlord's recovery of
possession and notwithstanding any reletting, Tenant shall continue to pay all
Rent provided for herein as and when it comes due, less the net proceeds
received by Landlord from any reletting; provided that, if the proceeds of
reletting exceed the amount due from Tenant, on or before the 15th day of each
month, Landlord shall refund to Tenant any amount by which the Rent paid by
Tenant through such date, when added to the amount, if any, recovered by
Landlord through any reletting of the Premises through such date, reduced by all
Reletting Costs for which Tenant has not paid Landlord, and reduced by all
amounts Landlord has previously refunded to Tenant under this Subsection, and
reduced by any other amounts Tenant owes Landlord under this Lease, exceeds the
Rent due under this Lease through such date. Tenant shall reimburse Landlord
upon demand for all Reletting Costs and any other costs and expenses which
Landlord may incur in connection with recovery of possession or repair of the
Premises.
(e) Landlord
may, at its option, at any time, declare immediately due and payable the
unamortized portion of any improvement allowance and other out-of-pocket costs
(including without limitation brokerage commissions) incurred by Landlord in
connection with this Lease, all of which shall, upon such declaration,
immediately be due and payable in full by Tenant. Such amortization shall be
computed on a straight-line basis over the Term of the Lease with interest at
the rate of 9% per annum beginning with the first full calendar month of the
Term, but without payments being amortized during any part of the Term in which
Rent may be abated. To the extent any portion of such unamortized costs is paid
by Tenant pursuant to this Subsection, such portion shall be excluded from the
amount of Rent which would have been otherwise payable hereunder for purposes of
calculating Landlord's damages under this Section
13.
(f) In
the event Landlord proceeds under this Section 13.2.
Landlord may at any time terminate this Lease by notice to Tenant. Such
termination shall have the effect specified in Section 13.1 and
Landlord shall be entitled to all remedies under Section 13.1 upon
termination.
13.3
General Remedies.
Regardless of whether Landlord elects to terminate the Lease pursuant to
Section 13.1, to terminate Tenant's right of possession pursuant to Section
13.2, or to take no immediate action with respect to Tenant's possession,
Landlord shall have the following remedies:
(a) Landlord
may continue to collect Rent as it comes due under the Lease.
(b) Landlord
may bring separate or consolidated actions from time to time to collect any one
or more delinquent installments or payments of Rent due under this Lease or
to
19
enforce
any right or remedy provided under this Lease or otherwise available at law or
in equity; provided that Landlord shall not be entitled to accelerate or advance
to a date before they would otherwise come due any of Tenant's obligations under
this Lease except pursuant to Sections 13.1(e), 13,I(f), 13.2(e). or as
otherwise specifically and expressly provided in this Lease,
(c) Landlord
may (but shall not be obligated to) perform any act that Tenant shall be
required and shall fail to perform hereunder. Landlord's performance shall not
constitute a waiver or cure of Tenant's default or release Tenant from any of
its obligations relative thereto. All sums paid or costs incurred by Landlord in
so performing such acts under this Section 13. together
with interest thereon at the Default Rate from the date such payment was made or
such cost was incurred by Landlord, shall be payable by Tenant to Landlord on
demand as Additional Rent.
(a) Any
reletting of the Premises shall be on the terms and conditions determined by
Landlord in its reasonable good faith discretion and to such tenants as Landlord
shall approve in its reasonable good faith discretion. Without limiting the
generality of the foregoing, Tenant acknowledges that, in reletting the
Premises, Landlord may legitimately consider the effect of any such reletting on
the Building and on any other buildings owned by Landlord or any other person or
entity controlling, controlled by, or under common control with Landlord, or
otherwise affiliated with Landlord (which parties are referred to in this Section 13
collectively as "Landlord Affiliates"), and, therefore, may decide not to
lease the Premises at rates which are lower than Landlord is otherwise
endeavoring to maintain in the Building, or at rates which are lower than the
rate that Landlord believes to be appropriate for the
Premises.
(b) Tenant
recognizes that Landlord and Landlord's Affiliates currently and in the future
may have vacant space in the Building and other buildings and may in the future
also have vacant space in new projects in competition with the Premises. In no
event shall Landlord be obligated to use any effort to relet the Premises in
preference to leasing any such other vacant space then available for leasing by
Landlord or any of Landlord's Affiliates. Landlord shall
not
20
be deemed
to have failed to mitigate damages solely on account of the leasing of other
space which Landlord or Landlord's Affiliates have available instead of the
reletting of the Premises.
21
costs
include processing and accounting charges, interest and late charges imposed by
Mortgagees or Master Lessors, and other general and administrative expenses.
Tenant agrees that the late charges and interest contemplated by this Section
represent a fair and reasonable estimate of the costs which Landlord will incur
as a result of any such late payments by Tenant. Acceptance of late charges and
interest by Landlord shall not constitute a waiver of Tenant's default with
respect to any overdue amount, or prevent Landlord from exercising any other
rights or remedies under this Lease.
22
those
that are inconsistent with tenancy at sufferance), except that Tenant shall pay
Base Rent at 150% of the rate for Base Rent in effect immediately prior to such
holdover, computed on a monthly basis for each full or partial month Tenant
remains in possession. Tenant shall also pay Landlord all of Landlord's direct
and consequential damages resulting from Tenant's holdover. No acceptance of
Rent or other payments by Landlord under these holdover provisions shall operate
as a waiver of Landlord's right to regain possession of the Premises or any of
Landlord's other rights or remedies.
(a) liable
for any act or omission of any prior landlord (including, without limitation,
the then defaulting landlord), except to the extent such act or omission
continues after the date that the Successor succeeds to Landlord's interest in
this Lease, or
(b) subject
to any defenses or offsets that Tenant has against any prior landlord
(including, without limitation, the then defaulting landlord),
or
23
(c) bound
by any payment of Rent that Tenant has made to any prior landlord (including,
without limitation, the then defaulting landlord) more than thirty (30) days in
advance of the date that such payment is due, unless the Successor actually
receives or approves such payment, or
(d) bound
by any obligation to make any payment to or on behalf of
Tenant,
(e) responsible
for the making of repairs in or to the Premises or Project in the case of damage
or destruction to the Premises or Project or any part thereof due to fire or
other casualty or by reason of condemnation unless Successor is obligated under
Section 9 or 10 to make such repairs and Successor receives insurance proceeds
or condemnation awards sufficient to finance the completion of such
repairs.
(f) bound
by any amendment or modification of this Lease made without the consent of the
Successor, or
(g) liable
for any security deposit or other money of Tenant held by a prior landlord
except to the extent such sums are actually received by the Successor from such
prior landlord.
24
25
occurs,
Landlord may require that all sublease payments be made directly to Landlord, in
which event Landlord shall credit such payments received by Landlord against
Tenant's obligation to pay Rent.
26
such an
estoppel certificate. Tenant's failure to deliver any estoppel certificate in
the time and manner provided herein shall constitute an Event of Default under
Section 1.2.
Kb). Tenant shall also pay any damages incurred by Landlord as a result
of Tenant's failure (including costs or damages resulting from a lost sale or
financing). Tenant's failure to timely execute and deliver such estoppel
certificate will be conclusive upon Tenant that this lease is in full force and
effect, without modification except as may be represented by Landlord, that
there are no uncured defaults in Landlord's performance, and that not more than
one month's Base Rent has been paid in advance,
Landlord. To
Landlord as follows:
HTD-Ptarmigan Place,
LLC
c/o Hamilton
Partners
Attn: Xxxxxx
Xxxxxxxxx
000 Xxxx
Xxxxxxxxx, Xxxxx 000
Xxxxxx,
Xxxxxxxx 00000-0000
27
with a
copy to:
Xxxxxxxx-Titan
Partners, LLC
Attn: Xxxxxx
X. Xxxxx
0000 X.
Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX
00000
and a
copy to:
Xxxxxxxx-Titan
Partners, LLC
Attn:
Property Management
0000 Xxxxxx
Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxx,
Xxxxxxxx 00000
or to
such other person at such other address as Landlord may designate by notice to
Tenant. Tenant. To Tenant as follows:
XEDAR
Corporation
0000 Xxxxx
Xxxxxx Xxxxxxx Xxxxx 000
Xxxxxxxxx,XX00000
Attn: Xxxxxx
Xxxxx, CFO
or to
such other person at such other address as Tenant may designate by notice to
Landlord; provided that notices to Tenant may be validly delivered to Tenant at
the Premises, Notices shall be deemed received when delivered by the method
provided above or when delivery is refused.
28
representatives.
The parties' liability hereunder shall survive any expiration or termination of
this Lease.
29
employees,
or officers shall not operate as a termination of this Lease or a surrender or
acceptance of the Premises, and no surrender or attempted surrender of the
Premises shall be binding or effective unless made in writing and executed by a
person authorized to bind Landlord. No payment by Tenant or receipt by Landlord
of an amount less than the full monthly Rent and all other amounts owing, as
herein provided, shall be deemed to be other than on account of the earliest due
Rent or other amounts, nor shall any endorsement or statement on any check or
any letter accompanying any check or payment as Rent be deemed an accord and
satisfaction. Landlord may accept any such check or payment without prejudice to
Landlord's right to recover the balance owed or to pursue any other remedy
available to Landlord.
26.12
Entire Agreement. This
Lease, together with all Appendices, constitutes the entire agreement between
the parties with respect to the subject matter thereof. No representations or
agreements of any kind have been made by either party which are not contained in
this Lease,
26.13
Changes in Project or Building
Configuration. Landlord does not grant in this Lease any rights to a
particular view from the Premises or interior or exterior configuration of the
Building and Project. Landlord shall be entitled at any time and from time to
time to eliminate, add, replace, change the appearance or change the extent of
any improvements to the Building and Project without liability to Tenant;
provided that, except as provided in Section 11.9
(Relocation of Tenant), Landlord shall not without Tenant's consent
change the dimensions of the Premises or materially interfere with access to the
Premises from the common areas of the Project and Building, except to the extent
any such changes are required by reason of any applicable Governmental
Requirement. Landlord shall be entitled at any time and from tune to time to
remeasure the Building in accordance with the Standard Method for Measuring
Floor Area in Office Buildings (ANSI/BOMA Z65.1-1996) to determine the total
number of rentable square feet in the Building, in which event Tenant's
Proportionate Share shall be adjusted in accordance with the results of such
remeasurement.
26.15
Including. As used
herein, unless expressly provided otherwise, the word "including" shall mean
"including without limitation."
26.16
Joint and Several. If
there are more than one entity or person which are the Tenant under this Lease,
the obligations imposed upon Tenant under this Lease shall be joint and
several,
26.17
No Recording by Tenant. Tenant
shall not record in any public records any memorandum or any portion of this
Lease.
26.18
No Construction Against
Drafting Party. The rule of construction that ambiguities are resolved
against the drafting party shall not apply to this Lease.
30
26.19 Survival, All obligations of Landlord
and Tenant under this Lease shall survive the termination of this
Lease.
26.20
Building Manager and Service Providers.
Landlord may perform any of its obligations under this Lease through its
employees or third parties hired by the Landlord.
26.21
No Waiver. No
provision of this Lease or obligation of Tenant arising with respect to this
Lease shall be deemed to have been waived by Landlord, unless such waiver is in
writing and signed by Landlord. No waiver by Landlord in any instance shall
constitute a waiver by Landlord in any similar or different
instance.
31
27.5
Indemnification,
In addition to the indemnity given in Section 8.2 above,
Tenant shall be solely responsible for and shall defend, indemnify and hold
Landlord, its agents, officers, managers and employees harmless from and against
all claims, costs, demands, losses and liabilities, including attorneys' fees
and costs, arising out of or in connection with (i) Tenant's breach of its
obligations in this Section 27. (ii) any
Hazardous Substances brought upon, produced, stored, used, discharged or
disposed of in the Premises or by Tenant or Tenant's employees, contractors or
agents in, on or about the Project, including without limitation any Hazardous
Substances that Tenant is permitted to bring into the Premises pursuant to this
Section
27. or (iii) any removal,
remediation, and restoration work and materials necessary to return the
Premises, Building, Project, and any personal property located therein or
thereon to their condition existing prior to the appearance of Tenant's
Hazardous Substances on the Premises, Tenant's obligations under this Section 27.5 shall
survive the expiration or other termination of this Lease.
[The
remainder of this page is intentionally blank.]
32
LANDLORD:
|
||
HTD-PTARMIGAN
PLACE, LLC,
|
||
a
Delaware limited liability company
|
||
By:
Xxxxxxxx-Titan Partners, LLC,
|
||
a
Delaware limited liability company, its authorized agent
|
||
By:
/s/ Xxxxxx X. Xxxxx
|
||
|
Xxxxxx
X. Xxxxx, Authorized Agent
|
|
TENANT:
|
||
XEDAR
CORPORATION,
|
||
a
Colorado corporation
|
||
By:
/s/ Xxxxx Xxxxx
|
||
Name:
Xxxxxx Xxxxx
|
||
Its:
CFO
|
33
APPENDIX
A
PLAN OF THE
PREMISES
(attach
floor plan depicting the Premises)
A-l
APPENDIX
B
None.
X-x
1. The
operation of a gourmet coffee house and sales of coffee, hot espresso-based
drinks, coffee and/or espresso based cold drinks, teas, blended beverages
(including, but not limited to, those containing coffee, espresso, tea and
blended fruit beverages; excluding, however, the sale of coffee, hot
espresso-based drinks, coffee and/or teas, alcoholic blended fruit beverages,
and ice cream-based milkshakes for on-premises consumption, in connection with
meals by any restaurant in the Building greater than 2,000 square feet in size.
Any such restaurant in the Building shall be permitted to sell coffee and hot
espresso-based drinks and teas, alcoholic blended fruit beverages, and ice
cream-based milkshakes for on-premises consumption, in connection with meals, as
long as such restaurant does not advertise any brand-identified coffee in their
premises, the Building or anywhere on the Project.
2. The
operation of any business whose primary purpose is the listing and sale of
residential properties through real estate brokers licensed as such by the State
of Colorado, and offering other attendant real estate services, such as acting
as buyer's agents or transaction brokers in connection with the purchase and/or
sale of residential properties to customers consisting of independent
third-party clients of such company (a "Residential Real Estate Brokerage
Company"). A "Residential Real Estate Brokerage Company" expressly does not
include the following: (a) any entity which conducts the foregoing services on
its own behalf or on behalf of its affiliated companies (e.g., a company shall
not be deemed a Residential Real Estate Brokerage Company" simply by virtue of
the fact that it has a department or personnel which may offer these benefits to
its employees, whether through its own personnel or third parties); (b) any
entity which conducts the foregoing services for its clients in connection with
its primary business, provided that its primary business is not a Residential
Real Estate Brokerage Company (e.g. a law firm shall not be deemed a Residential
Real Estate Brokerage Company simply because its attorneys may give legal advice
to purchasers or sellers of residential real estate; likewise a bank, credit
union, title company or other similar entity shall not be deemed a Residential
Real Estate Brokerage Company simply because they may offer services related to
the purchase and sale of residential real estate, such as loans or title or
closing services; or (c) any entity which conducts the foregoing services for
its clients but primarily services commercial (e.g., non-residential) customers
such as commercial building owners, developers, or similar customers, even
though it may operate as a brokerage firm employing licensed real estate
brokers. This restriction shall not be binding with respect to any future leases
to any person or entity which leases at least 50,000 rentable square feet in the
Building.
3. The
retail sale of prepared meals for consumption off the
Project.
4. The
operation of a full-service travel agency.
5. The
operation of a business whose primary purpose is the retail sale of prescription
glasses and contact lenses to the public, with accompanying primary and medical
eye care and laser vision correction services by licensed optometrists or
ophthalmologists for the purpose of providing primary and medical eye care and
providing prescriptions for glasses and/or contact lenses.
C-l
INDEX
1.
|
SUITE
AND PARKING
|
2
|
1.1
|
Lease
|
2
|
1.2
|
Parking
|
2
|
2.
|
RENT
|
3
|
2.1
|
Types
of Rent
|
3
|
2.2
|
Payment
of Operating Cost Share Rent and Tax Share Rent
|
4
|
2.3
|
Definitions
|
5
|
2.4
|
Computation
of Base Rent and Rent Adjustment
|
7
|
3.
|
PREPARATION
AND CONDITION OF PREMISES; POSSESSION AND SURRENDER OF
PREMISES
|
8
|
3.1
|
Condition
of Premises
|
8
|
3.2
|
Tenant's
Possession
|
8
|
3.3
|
Maintenance
|
8
|
4.
|
PROJECT
SERVICES
|
8
|
4.1
|
Heating
and Air Conditioning
|
9
|
4.2
|
Elevators
|
9
|
4.3
|
Electricity
|
9
|
4.4
|
Water
|
9
|
4.5
|
Janitorial
Service
|
9
|
4.6
|
Interruption
of Services
|
9
|
4.7
|
Access
|
10
|
5.
|
ALTERATIONS
AND REPAIRS
|
10
|
5.1
|
Landlord's
Consent and Conditions
|
10
|
5.2
|
Repair
|
10
|
5.3
|
No
Liens
|
10
|
5.4
|
Ownership
of Improvements
|
11
|
5.5
|
Removal
at Termination
|
11
|
5.6
|
ADA
|
11
|
5.7
|
Survival
|
12
|
-i-
6.
|
USE
OF PREMISES
|
12
|
7.
|
GOVERNMENTAL
REQUIREMENTS AND BUILDING RULES
|
12
|
8.
|
WAIVER
OF CLAIMS; INDEMNIFICATION; INSURANCE
|
12
|
8.1
|
Waiver
of Claims
|
12
|
8.2.
|
Indemnification
|
12
|
8.3
|
Tenant's
Insurance
|
13
|
8.4
|
Insurance
Certificates
|
14
|
8.5
|
Landlord's
Insurance
|
14
|
8.6
|
Waiver
of Subrogation
|
14
|
9.
|
FIRE
AND OTHER CASUALTY
|
14
|
9.1
|
Termination
|
14
|
9.2
|
Restoration
|
15
|
10.
|
EMINENT
DOMAIN
|
15
|
10.1
|
Taking
|
15
|
10.2
|
Award
|
16
|
10.3
|
Temporary
Taking
|
16
|
11.
|
RIGHTS
RESERVED TO LANDLORD
|
16
|
11.1
|
Name
|
16
|
11.2
|
Signs
|
16
|
11.3
|
Window
Treatments
|
16
|
11.4
|
Keys
|
16
|
11.5
|
Access
|
16
|
11.6
|
Preparation
for Reoccupancy
|
16
|
11.7
|
Heavy
Articles
|
16
|
11.8
|
Show
Premises
|
17
|
11.9
|
Relocation
of Tenant
|
17
|
11.10
|
Repairs
and Alterations
|
17
|
11.11
|
Landlord's
Agents
|
17
|
11.12
|
Building
Services
|
17
|
11.13
|
Other
Actions
|
17
|
12.
|
TENANT'S
DEFAULT
|
17
|
12.1
|
Events
of Default
|
17
|
-ii-
12.2
|
Cure
|
18
|
13.
|
LANDLORD
REMEDIES
|
18
|
13.1
|
Terminate
Lease
|
18
|
13.2
|
Termination
of Possession Without Terminating Lease
|
20
|
13.3
|
General
Remedies
|
21
|
13.4
|
Remedies
Cumulative
|
21
|
13.5
|
Landlord's
Obligations Regarding Reletting
|
22
|
13.6
|
Termination
of Subleases and Other Arrangements
|
22
|
13.7
|
Interest
and Costs
|
22
|
13.8
|
Late
Charges
|
23
|
13.9
|
WAIVER
OF TRIAL BY JURY
|
23
|
14.
|
ATTORNEYS'FEES
AND COSTS OF SUIT
|
23
|
14.1
|
Attorneys'
Fees and Costs
|
23
|
14.2
|
Indemnification
|
24
|
15.
|
SURRENDER
|
24
|
16.
|
HOLDOVER
|
24
|
17.
|
SUBORDINATION
TO GROUND LEASES AND MORTGAGES
|
24
|
17.1
|
Subordination
|
24
|
17.2
|
Attornment
|
25
|
17.3
|
Exceptions
|
25
|
17.4
|
Notice
and Right to Cure
|
25
|
18.
|
ASSIGNMENT
AND SUBLEASE
|
26
|
18.1
|
In
General
|
26
|
18.2
|
Landlord's
Consent
|
26
|
18.3
|
Procedure;
Information
|
26
|
18.4
|
Express
Assumption Required
|
27
|
18.5
|
Change
of Management or Ownership
|
27
|
18.6
|
Excess
Payments and Subtenant Payments
|
27
|
18.7
|
Landlord's
Costs
|
27
|
18.8
|
Recapture
|
27
|
18.9
|
Effect
of Termination
|
27
|
18.10
|
Permitted
Transfers
|
28
|
19.
|
CONVEYANCE
BY LANDLORD
|
28
|
20.
|
ESTOPPEL
CERTIFICATE
|
28
|
-iii-
20.1
|
Duty
to Provide
|
28
|
20.2
|
Tenant's
Failure to Deliver
|
28
|
21.
|
SECURITY
DEPOSIT
|
29
|
22.
|
FORCE
MAJEURE
|
29
|
23.
|
NOTICES
|
30
|
24.
|
QUIET
POSSESSION
|
30
|
25.
|
REAL
ESTATE BROKERS
|
30
|
26.
|
MISCELLANEOUS
|
31
|
26.1
|
Successors
and Assigns
|
31
|
26.2
|
Date
Payments Are Due
|
31
|
26.3
|
Time
of the Essence
|
31
|
26.4
|
No
Option
|
31
|
26.5
|
Severability
|
31
|
26.6
|
Governing
Law
|
31
|
26.7
|
Lease
Modification
|
31
|
26.8
|
Landlord's
Right to Cure
|
31
|
26.9
|
Captions
|
32
|
26.10
|
Authority
|
32
|
26.11
|
Certain
Actions
|
32
|
26.12
|
Entire
Agreement
|
32
|
26.13
|
Changes
in Project or Building Configuration
|
32
|
26.14
|
Singular
and Plural
|
32
|
26.15
|
Including
|
32
|
26.16
|
Joint
and Several
|
33
|
26.17
|
No
Recording by Tenant
|
33
|
26.18
|
No
Construction Against Drafting Party
|
33
|
26.19
|
Survival
|
33
|
26.20
|
Building
Manager and Service Providers
|
33
|
26.21
|
No
Waiver
|
33
|
|
||
27.
|
HAZARDOUS
SUBSTANCES
|
33
|
27.1
|
Definition
|
33
|
27.2
|
Restrictions
|
33
|
27.3
|
Testing
|
33
|
-iv-
27.4
|
Notice
|
34
|
27,5
|
Indemnification
|
34
|
|
||
28.
|
EXCULPATION
|
34
|
|
||
29.
|
TELECOMMUNICATIONS/WI-FI
SYSTEMS
|
34
|
|
||
30.
|
Tenant's
OPTION TO RENEW
|
35
|
30.1
|
Exercise
of Option
|
35
|
30.2
|
Determination
of Base Rent
|
35
|
|
||
31.
|
RIGHT
OF FIRST OFFER. [THIS WILL NEED TO BE REVISED TO THE PARTICULAR TERMS TO
BE GRANTED TO THE TENANT - THIS IS FOR A MINIMUM AMOUNT OF SPACE ON A
PARTICULAR FLOOR OF A XXXXXXXX]
|
00
|
31.1
|
Landlord's
Offer of Space
|
36
|
31.2
|
General
Pro visions
|
36
|
-v-