Exhibit 10.22
OFFICE LEASE
BETWEEN
FDC OFFICE I, LLC,
A COLORADO LIMITED LIABILITY COMPANY
(AS LANDLORD)
AND
LENDERS RESOURCE INCORPORATED
A COLORADO CORPORATION
(AS TENANT)
Section Page
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1. PRINCIPAL TERMS..........................................................................................1
2. GENERAL COVENANTS........................................................................................3
3. TERM.....................................................................................................3
4. RENT.....................................................................................................3
5. COMPLETION OF THE PREMISES...............................................................................3
6. OPERATING EXPENSES.......................................................................................4
7. SERVICES.................................................................................................8
8. QUIET ENJOYMENT..........................................................................................9
9. CHARACTER OF OCCUPANCY...................................................................................9
10. MAINTENANCE, ALTERATIONS AND REENTRY BY LANDLORD.........................................................9
11. ALTERATIONS AND REPAIRS BY TENANT.......................................................................10
12. MECHANICS' LIENS........................................................................................11
13. SUBLETTING AND ASSIGNMENT...............................................................................11
14. DAMAGE TO PROPERTY......................................................................................13
15. INDEMNITY TO LANDLORD...................................................................................13
16. SURRENDER AND NOTICE....................................................................................13
17. INSURANCE, CASUALTY, AND RESTORATION OF PREMISES........................................................13
Section Page
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18. CONDEMNATION............................................................................................14
19. DEFAULT BY TENANT.......................................................................................15
20. DEFAULT BY LANDLORD.....................................................................................18
21. SUBORDINATION AND ATTORNMENT............................................................................18
22. REMOVAL OF TENANT'S PROPERTY............................................................................18
23. HOLDING OVER: TENANCY MONTH-TO-MONTH....................................................................19
24. PAYMENTS AFTER TERMINATION..............................................................................19
25. STATEMENT OF PERFORMANCE................................................................................19
26. MISCELLANEOUS...........................................................................................19
27. AUTHORITIES FOR ACTION AND NOTICE.......................................................................21
28. PARKING.................................................................................................22
29. BROKERAGE...............................................................................................22
30. COUNTERPARTS............................................................................................22
31. EXHIBITS................................................................................................22
32. OPTIONS.................................................................................................22
33. PERMIT CONTINGENCY......................................................................................23
34. EXPANSION...............................................................................................23
35. GUARANTY................................................................................................24
36. RIGHT OF FIRST REFUSAL..................................................................................24
LEASE AGREEMENT
THIS LEASE, dated as of ____________, 1997, is by and between FDC
OFFICE I, LLC, a Colorado limited liability company ("Landlord"), and LENDERS
RESOURCE INCORPORATED, a Colorado corporation ("Tenant").
W I T N E S S E T H:
1. PRINCIPAL TERMS. Capitalized terms, first appearing in quotations in
this Section, elsewhere in the Lease or any Exhibits, are definitions of such
terms as used in the Lease and Exhibits and shall have the defined meaning
whenever used.
1.1 "BUILDING": FDC Office I located at, _________ Xxxxxxxx, XX 00000
in the Rocky Mountain Village Business Park.
1.2 "PREMISES": approximately 15,879 rentable square feet Suite # _____
1.3 "INITIAL TERM": 20 years
"Commencement Date": The date of Substantial
Completion, as defined in the attached Work Letter.
"Expiration Date": The last day of the month in which
the twentieth anniversary of the day immediately prior
to the Commencement Date occurs.
1.4 "BASE RENT": For each of the first 5 years of the Initial Term, the
annual Base Rent shall equal the lesser of (i) the
Total Construction Costs for the Premises, as said term
is defined in the attached Work Agreement times 11%
(i.e., assuming Total Construction Costs of $106.80 x
15,879 sq. ft. = $1,695,877.20 x 11% = $186,547.00 or
(ii) $186,578.00 (i.e., $11.75 x 15,879 sq. ft.). For
each of the 6th through the 10th years of the Initial
Term, the annual Base Rent shall equal 115% of the Base
Rent payable in the 5th year. For each of the 11th
through the 15th years of the Initial Term, the Base
Rent shall equal 115% of the Base Rent payable in the
10th year. For the 16th through the 20th years of the
Initial Lease Term, the Base Rent shall equal 115 % of
the Base Rent payable in the 15th year. The Base Rent
for the first (1st) month of the Initial Term shall be
abated.
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1.5 OPERATING EXPENSES: Pro Rata Share: 50%
1.6 "DEPOSIT": Upon signing of this lease agreement, the first months
rent shall be waived and Lessee shall prepay the second
months rent ($15,545.00)
1.7 "PERMITTED USE": General Office
1.8 "GUARANTOR": Factual Data Corp. and FDC Group, Inc.
1.9 PARKING: 65 spaces
1.10 LANDLORD'S NOTICE ADDRESS: 000 Xxxx 0xx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
With copy to:
Isaacson, Rosenbaum, Xxxxx & Xxxx, P.C. 000 00xx
Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
1.11 LANDLORD'S TAX I.D.: 00-0000000
1.12 TENANT'S NOTICE ADDRESS: Lenders Resource Incorporated
Precommencement Address: c/o Factual Data, Corp.
0000 XXX Xxxxxxx, Xxxx. 0, 0xx Xxxxx
Xxxx Xxxxxxx, XX 00000-0000
Post Commencement Address: Lenders Resource Incorporated
-----------------------------------------------
Xxxxxxxx, XX 00000
with copy to: Xxxxxx X. Xxxxx
March & Xxxxx
000 Xxxx Xxx Xxxxxx, Xxxxx 000
Xx. Xxxxxxx, Xxxxxxxx 00000
1.13 TENANT'S TAX I.D.: 00-0000000
1.14 LANDLORD'S BROKER: Xxxx Real Estate Services
1.15 COOPERATING BROKER: None
1.16 ATTACHMENTS: [check if applicable]
Addendum
x Work Letter
x Exhibit A - The Premises
x Exhibit B - Real Property
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x Exhibit C - Commencement Certificate
x Exhibit D - Rules and Regulations
x Exhibit E - Form of Guaranty
2. GENERAL COVENANTS. Tenant covenants and agrees to pay Rent and
perform the obligations hereafter set forth and in consideration therefor
Landlord leases to Tenant the Premises as depicted on the attached EXHIBIT A,
together with a non-exclusive right, subject to the provisions hereof, to use
plazas, common areas, or other areas on the real property legally described on
EXHIBIT B (the "Real Property") designated by Landlord for the exclusive or
non-exclusive use of the tenants of the Building ("Common Areas"). The Building,
Real Property, Common Areas, and appurtenances are hereinafter collectively
sometimes called the "Building Complex."
3. TERM. The Initial Term of the Lease commences at 12:01 a.m. on the
Commencement Date and terminates at 12:00 midnight on the Expiration Date (the
Initial Term together with any extensions thereof is herein referred to as the
"Term.").
4. RENT. Subject to the provisions below, commencing on the
Commencement Date and on the first day of each month thereafter, Tenant shall
pay Base Rent in the amount stated in Section 1.4, in advance without notice
(all amounts, including Base Rent, to be paid by Tenant pursuant to this Lease
as the context requires are sometimes referred to collectively as "Rent(s)").
Rents shall be paid without set off, abatement, or diminution, at the office of
Landlord in Loveland, Colorado, or at such other place as Landlord from time to
time designates in writing. Notwithstanding the foregoing or the provisions of
Section 1.4 to the contrary, the Base Rent for the first month shall be abated.
5. COMPLETION OF THE PREMISES.
5.1 Provisions regarding completion of the Premises are set forth in
the attached Work Letter. "Initial Tenant Finish" means the Premises in its
as-is condition as modified by all work, if any, performed by Landlord at its
expense prior to the Commencement Date in accordance with the Work Letter.
Except as provided in the Work Letter, Landlord has no obligation for the
completion or remodeling of the Premises, and Tenant accepts the Premises in its
"as is" condition on the Commencement Date. If Landlord is delayed in delivering
the Premises to Tenant in accordance with the Work Letter then the Commencement
Date will be postponed to the date Landlord delivers the Premises to Tenant. If
delivery is on other than the first day of the month, then the Commencement Date
will be the first day of the month following the delivery date but all
provisions hereof, including Tenant's obligation to pay Rent (prorated for a
partial month), will be in effect as of the delivery date. The postponement of
Tenant's obligation to pay Rent is in full settlement of all claims which Tenant
may otherwise have by reason of such delay. If the Commencement Date is delayed,
the Expiration Date shall be extended so that the Term will continue for the
full period set forth in Section 1.3. As soon as the Term commences, Landlord
and Tenant agree to execute a commencement agreement in the form attached as
EXHIBIT C, setting forth the exact Commencement Date and Expiration Date.
5.2 Except as provided in the Work Letter, taking possession of the
Premises by Tenant is conclusive evidence that the Premises are in the condition
agreed between Landlord
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and Tenant and acknowledgment by Tenant of satisfactory completion of any work
which Landlord has agreed to perform.
6. OPERATING EXPENSES.
6.1 Definitions. The additional terms below have the following meanings
in this Lease:
(1) "Landlord's Accountants" means that individual or firm employed
by Landlord from time to time to keep the books and records for the Building
Complex, and/or to prepare the federal and state income tax returns for Landlord
with respect to the Building Complex, which books and records shall be certified
to by a representative of Landlord. All determinations made hereunder shall be
made by Landlord's Accountants unless otherwise stated.
(2) "Rentable Area" means approximately 31,000 rentable square feet
of space. If there is a significant change in the aggregate Rentable Area as a
result of an addition, partial destruction, modification to building design, or
similar cause which causes a reduction or increase in the Rentable Area on a
permanent basis or, if Landlord remeasures the Building and a change in Rentable
Area occurs, Landlord's Accountants shall make such adjustments in the
computations as are necessary to provide for such change.
(3) "Tenant's Pro Rata Share" means the percentage set forth in
Section 1.5, which percentage has been computed by dividing the total rentable
square footage of the Premises by the Rental Area. If Tenant, at any time during
the Term, leases additional space in the Building or if the Rentable Area is
adjusted, Tenant's Pro Rata Share shall be recomputed by dividing the total
rentable square footage of space then leased by Tenant (including any additional
space) by the Rentable Area and the resulting figure shall become Tenant's Pro
Rata Share.
(4) "Operating Expense Year" means each calendar year during the
Term, except that the first Operating Expense Year begins on the Commencement
Date and ends on December 31 of such year and the last Operating Expense Year
begins on January 1 of the calendar year in which this Lease expires or is
terminated and ends on the date of such expiration or termination. If an
Operating Expense Year is less than twelve (12) months, Operating Expenses for
such year shall be prorated.
(5) "Operating Expenses" means all operating expenses of any kind or
nature, paid or incurred by the Landlord, which are in Landlord's reasonable
judgment necessary, appropriate, or customarily incurred in connection with the
operation, service and maintenance of the Building Complex including costs
incurred in fulfillment of Landlord's services, operation and maintenance
obligations under the terms of this Lease. Operating Expenses include:
(a) All real property taxes and assessments levied against the
Building Complex by any governmental or quasi-governmental authority, including
taxes, assessments, surcharges, or service or other fees of a nature not
presently in effect which are hereafter levied on the Building Complex as a
result of the use, ownership or operation of the Building Complex or for any
other reason, whether in lieu of or in addition to, any current real estate
taxes and
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assessments. However, any taxes which are levied on the rent of the Building
Complex will be determined as if the Building Complex were Landlord's only real
property. In no event do taxes and assessments include any federal or state
income taxes levied or assessed on Landlord. Expenses for tax consultants to
contest taxes or assessments are also included as Operating Expenses (all of the
foregoing are collectively referred to herein as "Taxes"). Taxes also include
special assessments, license taxes, business license fees, business license
taxes, commercial rental taxes, levies, charges, penalties or taxes, imposed by
any authority against the Premises, Building Complex or any legal or equitable
interest of Landlord. Special assessments are deemed payable in such number of
installments permitted by law, whether or not actually so paid, and include any
applicable interest on such installments. Taxes (other than special assessments)
are computed on an accrual basis based on the year in which they are levied,
even though not paid until the following Operating Expense Year;
(b) Costs of supplies, including costs of relamping and replacing
ballasts in all Building standard tenant lighting;
(c) Costs of energy for the Building Complex, including costs of
propane, butane, natural gas, steam, electricity, solar energy and fuel oils,
coal or any other energy sources;
(d) Costs of water and sanitary and storm drainage services;
(e) Costs of security services;
(f) Costs of general maintenance, repairs, and replacements
including costs under HVAC and other mechanical maintenance contracts; and
repairs and replacements of equipment used in maintenance and repair work;
(g) Costs of maintenance, repair and replacement of landscaping;
(h) Insurance premiums for the Building Complex, including
all-risk or multi-peril coverage, together with loss of rent endorsement; the
part of any claim paid under the deductible portion of any insurance policy
carried by Landlord; public liability insurance; and any other insurance carried
by Landlord on any component parts of the Building Complex;
(i) All labor costs, including wages, costs of worker's
compensation insurance, payroll taxes, fringe benefits, including pension,
profit-sharing and health, and legal fees and other costs incurred in resolving
any labor dispute;
(j) Professional building management fees, costs and expenses,
including costs of office space and storage space required by management for
performance of its services (said building management may, at Landlord's option,
be performed either by a third-party or Landlord affiliated property management
company);
(k) Legal, accounting, inspection, and other consulting fees
(including fees for consultants for services designed to produce a reduction in
Operating Expenses or improve the operation, maintenance or state of repair of
the Building Complex);
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(l) Costs of capital improvements and structural repairs and
replacements to the Building Complex to conform to changes subsequent to the
date of issuance of the shell and core certificate of occupancy for the Building
in any Applicable Laws hereinafter defined (herein "Required Capital
Improvements"); and the costs of any capital improvements and structural repairs
and replacements designed primarily to reduce Operating Expenses (herein "Cost
Savings Improvements"). Expenditures for Required Capital Improvements and Cost
Savings Improvements will be amortized at a market rate of interest over the
useful life of such capital improvement (as determined by Landlord's
Accountants); however, the amortized amount of any Cost Savings Improvement in
any year will be equal to the estimated resulting reduction in Operating
Expenses;
(m) Costs incurred for Landlord's Accountants including costs of
any experts and consultants engaged to assist in making the computations; and
(n) All dues, assessments, impositions and charges payable to
associations;
"Operating Expenses" do not include:
(i) Costs of work, including painting and decorating, which
Landlord performs for any tenant other than work of a kind and scope
which Landlord is obligated to furnish to all tenants whose leases
contain a rental adjustment provision similar to this one;
(ii) Costs of repairs or other work occasioned by fire,
windstorm or other insured casualty to the extent of insurance proceeds
received;
(iii) Leasing commissions, advertising expenses, and other
costs incurred in leasing space in the Building;
(iv) Costs of repairs or rebuilding necessitated by
condemnation;
(v) Interest on borrowed money or debt amortization, except as
specifically set forth above;
(vi) Depreciation on the Building Complex; or
(vii) To the extent paid directly by the Tenant, as
hereinafter provided, electrical costs for the Premises and janitorial
services for the Premises.
If any lease entered into by Landlord with any tenant in the Building provides
for a separate basis of computation for any Operating Expenses with respect to
its leased premises, Landlord's Accountants may modify the computation of Base
Operating Expenses, Rentable Area, and Operating Expenses for a particular
Operating Expense Year to eliminate or modify any expenses which are paid for in
whole or in part by such tenant. If the Rentable Area is not fully occupied
during any particular Operating Expense Year, Landlord's Accountants may adjust
those Operating Expenses which are affected by occupancy for the particular
Operating Expense
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Year to reflect 100% occupancy. Furthermore, in making any computations
contemplated hereby, Landlord's Accountants may make such other modifications to
the computations as are required in their judgment to achieve the intention of
the parties hereto.
6.2 Estimated Payments. During each Operating Expense Year beginning
with the first month of the first Operating Expense Year and continuing each
month thereafter throughout the Term, Tenant shall pay Landlord, at the same
time as Base Rent is paid, an amount equal to 1/12 of Landlord's estimate of
Tenant's Pro Rata Share of any projected increases in Operating Expenses for the
particular Operating Expense Year in excess of Base Operating Expenses
("Estimated Payment").
6.3 Annual Adjustments.
(1) Following the end of each Operating Expense Year, Landlord shall
submit to Tenant a statement setting forth the exact amount of Tenant's Pro Rata
Share of the Operating Expenses for the Operating Expense Year just completed.
Beginning with the statement for the second Operating Expense Year, each
statement shall set forth the difference, if any, between Tenant's actual Pro
Rata Share for the Operating Expense Year just completed and the estimated
amount for such Operating Expense Year. Each statement shall also set forth the
projected increase, if any, in Operating Expenses for the new Operating Expense
Year and the corresponding increase or decrease in Tenant's monthly Rent for
such new Operating Expense Year above or below the Rent paid by Tenant for the
immediately preceding Operating Expense Year.
(2) To the extent that Tenant's Pro Rata Share of Operating Expenses
for the period covered by a statement is different from the Estimated Payment
during the Operating Expense Year just completed, Tenant shall pay Landlord the
difference within 30 days following receipt by Tenant of the statement or
receive a credit against the next due Rent, as the case may be. Until Tenant
receives a statement, Tenant's Estimated Payment for the new Operating Expense
Year shall continue to be paid at the prior Estimated Payment, but Tenant shall
commence payment of Rent based on the new Estimated Payment beginning on the
first day of the month following the month in which Tenant receives the
statement. Tenant shall also pay Landlord or deduct from the Rent, as the case
may be, on the date required for the first payment, as adjusted, the difference,
if any, between the Estimated Payment for the new Operating Expense Year set
forth in the statement and the Estimated Payment actually paid during the new
Operating Expense Year. If, during any Operating Expense Year, there is a change
in the information on which Tenant is then making its Estimated Payments so that
the prior estimate is no longer accurate, Landlord may revise the estimate and
there shall be such adjustments made in the monthly Rent on the first day of the
month following notice to Tenant as shall be necessary by either increasing or
decreasing, as the case may be, the amount of monthly Rent then being paid by
Tenant for the balance of the Operating Expense Year.
6.4 Miscellaneous. In no event will any decrease in Rent pursuant to
any provision hereof result in a reduction of Rent below the Base Rent. Delay by
Landlord in submitting any statement for any Operating Expense Year does not
affect the provisions of this Section or constitute a waiver of Landlord's
rights for such Operating Expense Year or any subsequent Operating Expense
Years.
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6.5 Dispute. If Tenant disputes an adjustment submitted by Landlord or
a proposed increase or decrease in the Estimated Payment, Tenant shall give
Landlord notice of such dispute within 30 days after Tenant's receipt of the
adjustment. If Tenant does not give Landlord timely notice, Tenant waives its
right to dispute the particular adjustment. If Tenant timely objects, Tenant may
engage its own certified public accountants ("Tenant's Accountants") to verify
the accuracy of the statement complained of or the reasonableness of the
estimated increase or decrease. If Tenant's Accountants determine that an error
has been made, Landlord's Accountants and Tenant's Accountants shall endeavor to
agree upon the matter, failing which such matter shall be submitted to an
independent certified public accountant selected by Landlord, with Tenant's
reasonable approval, for a determination which will be conclusive and binding
upon Landlord and Tenant. All costs incurred by Tenant for Tenant's Accountants
shall be paid for by Tenant unless Tenant's Accountants disclose an error,
acknowledged by Landlord's Accountants (or found to have occurred through the
above independent determination), of more than 25% in the computation of the
total amount of Operating Expenses, in which event Landlord shall pay the
reasonable costs incurred by Tenant to obtain such audit. Notwithstanding the
pendency of any dispute, Tenant shall continue to pay Landlord the amount of the
Estimated Payment or adjustment determined by Landlord's Accountants until the
adjustment has been determined to be incorrect. If it is determined that any
portion of the Operating Expenses were not properly chargeable to Tenant, then
Landlord shall promptly credit or refund the appropriate sum to Tenant.
7. SERVICES.
7.1 Subject to the provisions below, Landlord agrees, in accordance
with standards determined by Landlord from time to time for the Building: (1) to
furnish running water at those points of supply for general use of tenants of
the Building; (2) to furnish to interior Common Areas heated or cooled air (as
applicable), electrical current, janitorial services, and maintenance; (3) to
furnish heated or cooled air to the Premises for standard office use provided
the recommendations of Landlord's engineer regarding occupancy and use of the
Premises are complied with by Tenant; (4) to provide the general use of
passenger elevators for ingress and egress to and from the Premises (at least
one such elevator shall be available at all times except in the case of
emergencies or repair); (items (1) through (4) are collectively called
"Services"). These services are to be provided twenty-four hours a day, seven
days a week.
7.2 The Premises shall be separately metered and Tenant shall obtain
all electricity for the Premises directly from the public utility company
furnishing the same. Tenant shall pay all utility deposits, fees and monthly
service charges for electricity services for the Premises. Tenant shall also pay
the cost of replacing light bulbs and/or tubes and ballast used in, all lighting
in the Premises other than that provided by Landlord to all tenants of the
Building.
7.3 Landlord may temporarily discontinue, reduce, or curtail Services
when necessary due to accident, repairs, alterations, strikes, lockouts,
Applicable Laws, or any other happening beyond Landlord's reasonable control.
Landlord is not liable for damages to Tenant or any other party as a result of
any interruption, reduction, or discontinuance of Services (either temporary or
permanent) nor shall the temporary occurrence of any such event be construed as
an eviction of Tenant, cause or permit an abatement, reduction or setoff of
Rent, or operate to release Tenant from Tenant's obligations.
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7.4 Tenant shall promptly notify Landlord of any accidents or defects
in the Building of which Tenant becomes aware, including defects in pipes,
electric wiring, and HVAC equipment, and of any condition which may cause injury
or damage to the Building or any person or property therein.
7.5 As Tenant requires its own janitorial services, Tenant shall
separately contract and pay for such services with any company approved by
Landlord, in its reasonable discretion and accordingly, Landlord shall not be
required to provide any janitorial services to the Premises.
8. QUIET ENJOYMENT. So long as an Event of Default has not occurred,
Tenant is entitled to the quiet enjoyment and peaceful possession of the
Premises subject to the provisions of this Lease.
9. CHARACTER OF OCCUPANCY. Tenant shall occupy the Premises for the
Permitted Use and for no other purpose, and use it in a careful, safe, and
proper manner and pay on demand for any damage to the Premises caused by misuse
or abuse by Tenant, Tenant's agents or employees, or any other person entering
upon the Premises under express or implied invitation of Tenant (collectively,
"Tenant's Agents"). Tenant, at Tenant's expense, shall comply with all
applicable federal, state, city, quasi-governmental and utility provider laws,
codes, rules, and regulations now or hereafter in effect ("Applicable Laws")
which impose any duty upon Landlord or Tenant with respect to the occupation or
alteration of the Premises. Tenant shall not commit or permit waste or any
nuisance on or in the Premises. Tenant agrees not to store, keep, use, sell,
dispose of or offer for sale in, upon or from the Premises any article or
substance prohibited by any insurance policy covering the Building Complex nor
shall Tenant keep, store, produce or dispose of on, in or from the Premises or
the Building Complex any substance which may be deemed an infectious waste or
hazardous substance under any Applicable Laws, except customary office and
cleaning supplies.
10. MAINTENANCE, ALTERATIONS AND REENTRY BY LANDLORD.
10.1 Landlord will (i) make repairs and replacements to HVAC,
mechanical, life safety and electrical systems in the Premises (to the extent
such systems are Building standard) deemed necessary by Landlord for normal
operations of the Building Complex; and (ii) provide upkeep, maintenance, and
repairs to all Common Areas. Except as provided in this Section or otherwise
expressly required in this Lease, Landlord is not required to make improvements
or repairs to the Premises during the Term.
10.2 Landlord or Landlord's agents may at any time enter the Premises
for examination and inspection, or to perform, if Landlord elects, any
obligations of Tenant which Tenant fails to perform or such cleaning,
maintenance, repairs, replacements, additions, or alterations as Landlord deems
necessary for the safety, improvement, or preservation of the Premises or other
portions of the Building Complex or as required by Applicable Laws. Landlord or
Landlord's agents may also show the Premises to prospective tenants, purchasers
and Mortgagees. Any such reentry does not constitute an eviction or entitle
Tenant to abatement of Rent. Landlord may make such alterations or changes in
other portions of the Building Complex as Landlord desires so long as such
alterations and changes do not unreasonably interfere with Tenant's occupancy of
the Premises. Landlord may use the Common Areas and
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one or more entrances to the Building Complex as may be necessary in Landlord's
judgment to complete such work.
11. ALTERATIONS AND REPAIRS BY TENANT.
11.1 Tenant shall not make any alterations to the Premises during the
Term, including installation of equipment or machinery which requires
modifications to existing electrical outlets or increases Tenant's usage of
electricity beyond building design standards (collectively "Alterations")
without in each instance first obtaining the written consent of Landlord.
Landlord's consent or approval of the plans, specifications and working drawings
for any Alterations shall not constitute any warranty or representation by
Landlord (and shall not impose any liability on Landlord) as to their
completeness, design sufficiency, or compliance with Applicable Laws. Tenant
shall at its cost: pay all engineering and design costs incurred by Landlord as
to all Alterations, obtain all governmental permits and approvals required, and
cause all Alterations to be completed in compliance with Applicable Laws and
requirements of Landlord's insurance. All such work relating to Alterations
shall be performed in a good and workmanlike manner, using new materials and
equipment at least equal in quality to the Initial Tenant Finish. All
Alterations, repair and maintenance work performed by Tenant shall be done at
Tenant's expense by Landlord's employees or, with Landlord's prior consent and
subject to any conditions imposed by Landlord, by other persons requested by
Tenant; however, if such work is not performed by Landlord's employees, Tenant
shall pay Landlord a supervisory fee upon receipt of an invoice. If Landlord
authorizes such persons to perform work, Tenant shall deliver to Landlord prior
to commencement certificates issued by insurance companies qualified to do
business in the State of Colorado, evidencing that worker's compensation, public
liability insurance, and property damage insurance (in amounts, with companies
and on forms satisfactory to Landlord) are in force and maintained by all
contractors and subcontractors engaged to perform such work. All liability
policies shall name Landlord, Building Manager, and Mortgagee as additional
insureds. Each certificate shall provide that the insurance may not be cancelled
or modified without 10 days' prior written notice to Landlord and Mortgagee.
Landlord also has the right to post notices in the Premises in locations
designated by Landlord stating that Landlord is not responsible for payment for
such work and containing such other information as Landlord deems necessary. All
such work shall be performed in a manner which does not unreasonably interfere
with Landlord or other tenants of the Building, or impose additional expense
upon Landlord in the operation of the Building Complex.
11.2 Tenant shall keep the Premises in as good order, condition, and
repair and in an orderly state, as on the Commencement Date, loss by fire or
other casualty or ordinary wear excepted.
11.3 All Alterations, including partitions, paneling, carpeting, drapes
or other window coverings, and light fixtures (but not including movable office
furniture not attached to the Building), are deemed a part of the real estate
and the property of Landlord and remain upon and be surrendered with the
Premises at the end of the Term, whether by lapse of time or otherwise, unless
Landlord notifies Tenant no later than 15 days prior to the end of the Term that
it elects to have Tenant remove all or part of such Alterations, and in such
event, Tenant shall at Tenant's expense promptly remove the Alterations
specified and restore the Premises to its prior condition, reasonable wear and
tear excepted.
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12. MECHANICS' LIENS. Tenant shall pay for all work done on the
Premises by Tenant or at its request (other than the Total Construction Costs)
of a character which may result in liens on Landlord's or Tenant's interest and
Tenant will keep the Premises free of all mechanics' liens, and other liens on
account of such work. Tenant indemnifies, defends, and saves Landlord harmless
from all liability, loss, damage, or expenses, including attorneys' fees, on
account of any claims of laborers, materialmen or others for work performed or
for materials or supplies furnished to Tenant or persons claiming under Tenant.
If any lien is recorded against the Premises or Building or any suit affecting
title thereto is commenced as a result of such work, or supplying of materials,
Tenant shall cause such lien to be removed of record within 5 days after notice
from Landlord. If Tenant desires to contest any claim, Tenant must furnish
Landlord adequate security of at least 150% of the amount of the claim, plus
estimated costs and interest and, if a final judgment establishing the validity
of any lien is entered, Tenant shall immediately pay and satisfy the same. If
Tenant fails to proceed as aforesaid, Landlord may pay such amount and any
costs, and the amount paid, together with reasonable attorneys' fees incurred,
shall be immediately due Landlord upon notice.
13. SUBLETTING AND ASSIGNMENT.
13.1 Tenant, as well as any other party that has acquired an interest
in this Lease by virtue of a sublease or assignment, shall not sublet any part
of the Premises nor assign or otherwise transfer this Lease or any interest
herein (sometimes referred to as "Transfer," and the subtenant or assignee may
be referred to as "Transferee") without the consent of Landlord first being
obtained, which consent will not be unreasonably withheld provided that: (1)
Tenant complies with the provisions of Section 14.4; (2) Landlord declines to
exercise its rights under Section 14.3; (3) the Transferee is engaged in a
business and the portion of the Premises will be used in a manner which is in
keeping with the then standards of the Building and does not conflict with any
exclusive use rights granted to any other tenant of the Building Complex; (4)
the Transferee has reasonable financial worth in light of the responsibilities
involved; (5) Tenant is not in default at the time it makes its request; (6) the
Transferee is not a governmental or quasi-governmental agency; (7) the
Transferee is not a tenant or currently negotiating a lease with Landlord in any
Building owned by Landlord in the Loveland - Ft. Xxxxxxx area (including the
Building Complex); and (8) the rent to be paid by the Transferee is not less
than the Rent paid by Tenant for such space and is not less than 85% of the
rental rate then being offered by Landlord for similar space in the Building.
Transfer includes a sale by Tenant of substantially all of its assets or stock
if Tenant is a publicly traded corporation, a merger of Tenant with another
corporation, the transfer of 25% or more of the stock in a corporate tenant
whose stock is not publicly traded, or transfer of 25% or more of the beneficial
ownership interests in a partnership or limited liability company tenant.
Notwithstanding the foregoing provisions, a Transfer shall not include a sale or
transfer of stock by Tenant pursuant to an I.P.O. or any form of public offering
of Tenant's stock, as long as Tenant's current shareholders retain at least 25%
of the issued and outstanding stock thereof.
13.2 Following any Transfer in accordance with this Section 13,
Landlord may, after default by Tenant, collect rent from the Transferee or
occupant and apply the net amount collected to the Rent, but no Transfer or
collection will be deemed an acceptance of the Transferee or occupant as Tenant
or release Tenant from its obligations. Consent to a Transfer shall not relieve
Tenant from obtaining Landlord's consent to any other Transfer.
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Notwithstanding Landlord's consent to a Transfer, Tenant shall continue to be
primarily liable for its obligations. If Tenant collects any rent or other
amounts from a Transferee in excess of the Rent for any monthly period, Tenant
shall pay Landlord the excess monthly, as and when received.
13.3 Notwithstanding the above, if Tenant requests Landlord's consent
to sublet 25% or more of the Premises, Landlord may refuse to grant such consent
in its sole discretion and terminate this Lease as to the portion of the
Premises with respect to which such consent was requested; provided, however, if
Landlord does not consent and elects to terminate the Lease as to such portion,
Tenant may within 15 days after notice from Landlord to this effect withdraw
Tenant's request for consent. If such termination occurs, it shall be effective
on the date designated in a notice from Landlord and shall not be more than 30
days following such notice.
13.4 Tenant must notify Landlord at least 90 days prior to the desired
date of the Transfer ("Tenant's Notice"). Tenant's Notice shall describe the
portion of the Premises to be transferred and the terms and conditions. Landlord
has, without obligation, 60 days following receipt of Tenant's Notice to sublet
the space on Tenant's behalf or to exercise its rights pursuant to Section 13.3
if Tenant's Notice discloses that 25% or more of the Premises is involved. If
the space covered by Tenant's Notice is subleased by Landlord, rent and other
sums due from the subtenant will be paid to Tenant directly and Landlord has no
responsibility for the performance by such subtenant of its obligations under
its sublease with Tenant. If Landlord is unwilling or unable to locate a
subtenant (and, if applicable, declines to exercise its rights under Section
14.3), Landlord will notify Tenant not later than 60 days after receipt of
Tenant's Notice and Tenant shall be free to sublet the specified portion of the
Premises to any third party on terms substantially identical to those described
in Tenant's Notice, subject to Landlord's consent as set forth above. If Tenant
does not sublet such portion of the Premises within 60 days following Landlord's
notice to Tenant, Tenant must reoffer the Premises to Landlord in accordance
with the provisions hereof prior to subleasing to a third party.
13.5 All documents utilized by Tenant to evidence a Transfer are
subject to approval by Landlord. Tenant shall pay Landlord's expenses, including
reasonable attorneys' fees, of determining whether to consent and in reviewing
and approving the documents. Tenant shall provide Landlord with such information
as Landlord reasonably requests regarding a proposed subtenant, including
financial information.
13.6 If a trustee or debtor in possession in bankruptcy is entitled to
assume control over Tenant's rights under this Lease and assigns such rights to
any third party notwithstanding the provisions hereof, the rent to be paid by
such party shall be increased to the current Base Rent (if greater than that
being paid for the Premises) which Landlord charges for comparable space in the
Building as of the date of such third party's occupancy. If Landlord is entitled
under the Bankruptcy Code to "Adequate Assurance" of future performance of this
Lease, the parties agree that such term includes the following:
(1) Any assignee must demonstrate to Landlord's reasonable
satisfaction a net worth and (as defined in accordance with generally accepted
accounting principles consistently applied) at least as large as the net worth
credit of Tenant on the Commencement Date increased by 7%, compounded annually,
for each year thereafter through the date of the proposed
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assignment. Tenant's financial condition was a material inducement to Landlord
in executing this Lease.
(2) The assignee must assume and agree to be bound by the provisions
of this Lease.
14. DAMAGE TO PROPERTY. Tenant agrees Landlord is not liable for any
injury or damage, either proximate or remote, occurring through or caused by
fire, water, steam, or any repairs, alterations, injury, accident, or any other
cause to the Premises, to any furniture, fixtures, Tenant improvements, or other
personal property of Tenant kept or stored in the Premises, or in other parts of
the Building Complex, whether by reason of the negligence or default of
Landlord, other occupants, any other person, or otherwise; and the keeping or
storing of all property of Tenant in the Premises and Building Complex is at the
sole risk of Tenant.
15. INDEMNITY TO LANDLORD.
15.1 Tenant agrees to indemnify, defend, and hold Landlord and Building
Manager harmless from all liability, costs, or expenses, including attorneys'
fees, on account of damage to the person or property of any third party,
including any other tenant in the Building Complex, to the extent caused by the
negligence or breach of this Lease by the Tenant or Tenant's Agents.
15.2 Tenant shall maintain throughout the Term a commercial general
liability policy, including protection against death, personal injury and
property damage, issued by an insurance company qualified to do business in the
State of Colorado, with a single limit of not less than $1,000,000.00. Such
policy shall name Landlord, Building Manager, and Mortgagee as additional
insureds, be primary to any other similar insurance of such additional insureds,
and provide that it may not be cancelled or modified without at least 20 days'
prior notice to Landlord and Mortgagee. The minimum limits of such insurance do
not limit the liability of Tenant hereunder. Prior to occupancy of the Premises,
and prior to expiration of the then-current policy, Tenant shall deliver
certificates evidencing that insurance required under this Lease is in effect.
16. SURRENDER AND NOTICE. Upon the expiration or other termination of
this Lease, Tenant shall immediately quit and surrender to Landlord the Premises
broom clean, in good order and condition, ordinary wear and tear and loss by
fire or other casualty excepted, and Tenant shall remove all of its movable
furniture and other effects, all telephone cable and related equipment in the
Building installed for Tenant, and such Alterations, as Landlord requires. If
Tenant fails to timely vacate the Premises as required, Tenant is responsible to
Landlord for all resulting costs and damages of Landlord, including any amounts
paid to third parties who are delayed in occupying the Premises.
17. INSURANCE, CASUALTY, AND RESTORATION OF PREMISES.
17.1 Landlord shall maintain property insurance for the Building
Complex, the shell and core of the Building and the Premises in such amounts,
from such companies, and on such terms and conditions, including insurance for
loss of Rent as Landlord deems appropriate, from time to time.
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17.2 Tenant shall maintain throughout the Term insurance coverage at
least as broad as ISO Special Form Coverage against risks of direct physical
loss or damage (commonly known as "all risk") for the full replacement cost of
Tenant's property and betterments in the Premises, including tenant finish in
excess of the Initial Tenant Finish.
17.3 If the Building is damaged by fire or other casualty which renders
the Premises wholly untenantable or the damage is so extensive that an architect
selected by Landlord certifies in writing to Landlord and Tenant within 60 days
of said casualty that the Premises cannot, with the exercise of reasonable
diligence, be made fit for occupancy within 180 working days from the happening
thereof, then, at the option of Landlord or Tenant exercised in writing to the
other within 30 days of such determination, this Lease shall terminate as of the
occurrence of such damage. In the event of termination, Tenant shall pay Rent
duly apportioned up to the time of such casualty and forthwith surrender the
Premises and all interest. If Tenant fails to do so, Landlord may reenter and
take possession of the Premises and remove Tenant. If, however, the damage is
such that the architect certifies that the Premises can be made tenantable
within such 180-day period or neither Landlord or Tenant elects to terminate the
Lease despite the extent of damage, then the provisions below apply.
17.4 If the Premises are damaged by fire or other casualty that does
not render it wholly untenantable or require a repair period in excess of 180
days, Landlord shall with reasonable promptness except as hereafter provided
repair the Premises to the extent of the Initial Tenant Finish.
17.5 If the Building is damaged (though the Premises may not be
affected, or if affected, can be repaired within 180 days) and within 60 days
after the damage Landlord decides not to reconstruct or rebuild the Building,
then, notwithstanding anything contained herein, upon notice to that effect from
Landlord within said 60 days, Tenant shall pay the Rent apportioned to such
date, this Lease shall terminate from the date of such notice, and both parties
discharged from further obligations except as otherwise expressly provided.
17.6 Landlord and Tenant waive all rights of recovery against the other
and its respective officers, partners, members, agents, representatives, and
employees for loss or damage to its real and personal property kept in the
Building Complex which is capable of being insured against under ISO Special
Form Coverage, or for loss of business revenue or extra expense arising out of
or related to the use and occupancy of the Premises. Tenant also waives all such
rights of recovery against Building Manager. Each party shall, upon obtaining
the property damage insurance required by this Lease, notify the insurance
carrier that the foregoing waiver is contained in this Lease and use reasonable
efforts to obtain an appropriate waiver of subrogation provision in the
policies.
17.7 Rent shall xxxxx during any period of repair and restoration in
the same proportion that the part of the Premises rendered untenantable bears to
the whole.
18. CONDEMNATION. If the Premises or substantially all of it or any
portion of the Building Complex which renders the Premises untenantable is taken
by right of eminent domain, or by condemnation (which includes a conveyance in
lieu of a taking), this Lease, at the option of either Landlord or Tenant
exercised by notice to the other within 30 days after the taking, shall
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terminate and Rent shall be apportioned as of the date of the taking. Tenant
shall forthwith surrender the Premises and all interest in this Lease, and, if
Tenant fails to do so, Landlord may reenter and take possession of the Premises.
If less than all the Premises is taken, Landlord shall promptly repair the
Premises as nearly as possible to its condition immediately prior to the taking,
unless Landlord elects not to rebuild under Section 17.5. Landlord shall receive
the entire award or consideration for the taking.
19. DEFAULT BY TENANT.
19.1 Each of the following events is an "Event of Default":
(1) Any failure by Tenant to pay Rent on the due date unless such
failure is cured within 10 business days after notice by Landlord; however,
Tenant is not entitled to more than 2 notices of delinquent payments during any
calendar year and, if thereafter during such calendar year any Rent is not paid
when due, an Event of Default shall automatically occur;
(2) Tenant vacates or abandons the Premises;
(3) This Lease or Tenant's interest is transferred whether
voluntarily or by operation of law except as permitted in Section 14;
(4) This Lease or any part of the Premises is taken by process of
law and is not released within 15 days after a levy;
(5) Commencement by Tenant of a proceeding under any provision of
federal or state law relating to insolvency, bankruptcy, or reorganization
("Bankruptcy Proceeding");
(6) Commencement of a Bankruptcy Proceeding against Tenant, unless
dismissed within 60 days after commencement;
(7) The insolvency of Tenant or execution by Tenant of an assignment
for the benefit of creditors; the convening by Tenant of a meeting of its
creditors or any significant class thereof for purposes of effecting a
moratorium upon or extension or composition of its debts; or the failure of
Tenant generally to pay its debts as they mature;
(8) The admission in writing by Tenant (or any general partner of
Tenant if Tenant is a partnership), that it is unable to pay its debts as they
mature or it is generally not paying its debts as they mature;
(9) Tenant fails to take possession of the Premises on the
Commencement Date;
(10) Tenant fails to perform any of its other obligations and
non-performance continues for 30 days after notice by Landlord or, if such
performance cannot be reasonably had within such 30 day period, Tenant does not
in good faith commence performance within such 30 day period and diligently
proceed to completion; provided, however, Tenant's right to cure shall not
exceed the period provided by Applicable Law.
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19.2 Remedies of Landlord. If an Event of Default occurs, Landlord may
then or at any time thereafter, either:
(1) (a) Without further notice except as required by Applicable
Laws, reenter and repossess the Premises or any part and expel Tenant and those
claiming through or under Tenant and remove the effects of both without being
deemed guilty of any manner of trespass and without prejudice to any remedies
for arrears of Rent or preceding breach of this Lease. Should Landlord reenter
or take possession pursuant to legal proceedings or any notice provided for by
Applicable Law, Landlord may, from time to time, without terminating this Lease,
relet the Premises or any part, either alone or in conjunction with other
portions of the Building Complex, in Landlord's or Tenant's name but for the
account of Tenant, for such periods (which may be greater or less than the
period which would otherwise have constituted the balance of the Term) and on
such conditions and upon such other terms (which may include concessions of free
rent and alteration and repair of the Premises) as Landlord, in its sole
discretion, determines and Landlord may collect the rents therefor. Landlord is
not in any way responsible or liable for failure to relet the Premises, or any
part thereof, or for any failure to collect any rent due upon such reletting;
provided, however that Landlord agrees to use reasonable efforts to relet the
Premises and to collect rent due upon such reletting. No such reentry or
repossession or notice from Landlord shall be construed as an election by
Landlord to terminate this Lease unless specific notice of such intention is
given Tenant. Landlord reserves the right following any reentry and/or reletting
to exercise its right to terminate this Lease by giving Tenant notice, in which
event this Lease will terminate as specified in the notice.
(b) If Landlord takes possession of the Premises without
terminating this Lease, Tenant shall pay Landlord (i) the Rent which would be
payable if repossession had not occurred, less (ii) the net proceeds, if any, of
any reletting of the Premises after deducting all of Landlord's expenses
incurred in connection with such reletting, including all repossession costs,
brokerage commissions, attorneys' fees, expenses of employees, alteration, and
repair costs (collectively "Reletting Expenses"). If, in connection with any
reletting, the new lease term extends beyond the Term or the premises covered
thereby include other premises not part of the Premises, a fair apportionment of
the rent received from such reletting and the Reletting Expenses, will be made
in determining the net proceeds received from the reletting. In determining such
net proceeds, rent concessions will also be apportioned over the term of the new
lease. Tenant shall pay such amounts to Landlord monthly on the days on which
the Rent would have been payable if possession had not been retaken, and
Landlord is entitled to receive the same from Tenant on each such day; or
(2) Give Tenant notice of termination of this Lease on the date
specified and, on such date, Tenant's right to possession of the Premises shall
cease and the Lease will terminate except as to Tenant's liability as hereafter
provided as if the expiration of the term fixed in such notice were the end of
the Term. If this Lease terminates pursuant to this Section, Tenant remains
liable to Landlord for damages in an amount equal to the Rent which would have
been owing by Tenant for the balance of the Term had this Lease not terminated,
less the net proceeds, if any, of reletting of the Premises by Landlord
subsequent to termination after deducting Reletting Expenses. Landlord may
collect such damages from Tenant monthly on the days on which the Rent would
have been payable if this Lease had not terminated and Landlord shall be
entitled to receive the same from Tenant on each such day. Alternatively, if
this Lease is
16
terminated, Landlord at its option may recover forthwith against Tenant as
damages for loss of the bargain and not as a penalty an amount equal to the
worth at the time of termination of the excess, if any, of the Rent reserved in
this Lease for the balance of the Term over the then Reasonable Rental Value of
the Premises for the same period plus all Reletting Expenses. "Reasonable Rental
Value" is the amount of rent Landlord can obtain for the remaining balance of
the Term.
19.3 Cumulative Remedies. Suits to recover Rent and damages may be
brought by Landlord, from time to time, and nothing herein requires Landlord to
await the date the Term would expire had there been no Event of Default or
termination, as the case may be. Each right and remedy provided for in this
Lease is cumulative and non-exclusive and in addition to every other right or
remedy now or hereafter existing at law or equity, including suits for
injunctive relief and specific performance. The exercise or beginning of the
exercise by Landlord of one or more rights or remedies shall not preclude the
simultaneous or later exercise by Landlord of other rights or remedies. All
costs incurred by Landlord to collect any Rent and damages or to enforce this
Lease are also recoverable from Tenant. If any suit is brought because of an
alleged breach of this Lease, the prevailing party is also entitled to recover
from the other party all reasonable attorneys' fees and costs incurred in
connection therewith.
19.4 No Waiver. No failure by Landlord to insist upon strict
performance of any provision or to exercise any right or remedy upon a breach
thereof, and no acceptance of full or partial Rent during the continuance of any
breach constitutes a waiver of any such breach or such provision, except by
written instrument executed by Landlord. No waiver shall affect or alter this
Lease but each provision hereof continues in effect with respect to any other
then existing or subsequent breach thereof.
19.5 Bankruptcy. Nothing contained in this Lease limits Landlord's
right to obtain as liquidated damages in any bankruptcy or similar proceeding
the maximum amount allowed by law at the time such damages are to be proven,
whether such amount is greater, equal to, or less than the amounts recoverable,
either as damages or Rent, referred to in any of the preceding provisions of
this Section. Notwithstanding anything in this Section to the contrary, any
proceeding described in Section 19.1(5), (6), (7) and (8) is an Event of Default
only when such proceeding is brought by or against the then holder of the
leasehold estate under this Lease.
19.6 Late Payment Charge. Any Rent not paid within 10 days after the
due date shall thereafter bear interest at 5 percentage points above the Prime
Rate or the highest rate permitted by law, whichever is lower, until paid.
Further, if such Rent is not paid within 10 days after notice, Tenant agrees
Landlord will incur additional administrative expenses, the amount of which will
be difficult to determine; Tenant therefore shall also pay Landlord a late
charge for each late payment of 5% of such payment. Any amounts paid by Landlord
to cure a default of Tenant which Landlord has the right but not the obligation
to do, shall, if not repaid by Tenant within 10 days of demand by Landlord,
thereafter bear interest at 5 percentage points above the Prime Rate until paid.
"Prime Rate" means that the base rate on Corporate Loans posted by at least 75%
of the Nation's 30 largest banks (as shown in the Wall Street Journal) on the
date closest to the date interest commences.
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19.7 Waiver of Jury Trial. Tenant and Landlord waive any right to a
trial by jury in suits arising out of or concerning the provisions of this
Lease.
20. DEFAULT BY LANDLORD. In the event of any alleged default on the
part of Landlord, Tenant shall give notice to Landlord and afford Landlord a
reasonable opportunity to cure such default. Such notice shall be ineffective
unless a copy is simultaneously also delivered in the manner required in this
Lease to any holder of a mortgage and/or deed of trust affecting all or any
portion of the Building Complex (collectively, "Mortgagee"), provided that prior
to such notice Tenant has been notified (by way of notice of Assignment of Rents
and Leases, or otherwise), of the address of a Mortgagee. If Landlord fails to
cure such default within the time provided, then Mortgagee shall have an
additional 30 days following a second notice from Tenant or, if such default
cannot be cured within that time, such additional time as may be necessary
provided within such 30 days, Mortgagee commences and diligently pursues a cure
(including commencement of foreclosure proceedings if necessary to effect such
cure). Tenant's sole remedy will be equitable relief or actual damages but in no
event is Landlord or any Mortgagee responsible for consequential damages or lost
profit incurred by Tenant as a result of any default by Landlord.
21. SUBORDINATION AND ATTORNMENT.
21.1 This Lease at Landlord's option will be subordinate to any
mortgage, deed of trust and related documents now or hereafter placed upon the
Building Complex (including all advances made thereunder), and to all
amendments, renewals, replacements, or restatements thereof (collectively,
"Mortgage"). Tenant agrees that no documentation other than this Lease is
required to evidence such subordination; provided, that Landlord shall provide
to Tenant, on or before the Commencement Date, a non-disturbance, subordination
and attornment agreement ("SNDA") from the holder of any Mortgage ("Mortgagee")
now or then encumbering the Building, in such Mortgagee's standard SNDA form.
Landlord shall also request a SNDA from any Mortgagee hereinafter encumbering
the Building, in such future Mortgagee's standard form.
21.2 If any Mortgagee elects to have this Lease superior to the lien of
its Mortgage and gives notice to Tenant, this Lease will be deemed prior to such
Mortgage whether this Lease is dated prior or subsequent to the date of such
Mortgage or the date of recording thereof.
21.3 In confirmation of subordination or superior position, as the case
may be, Tenant will execute such documents (including any SNDA) as may be
required by Mortgagee and if it fails to do so within 10 days after demand,
Tenant hereby irrevocably appoints Landlord as Tenant's attorney-in-fact and in
Tenant's name, place, and stead, to do so.
21.4 Tenant hereby attorns to all successor owners of the Building,
whether such ownership is acquired by sale, foreclosure of a Mortgage, or
otherwise.
22. REMOVAL OF TENANT'S PROPERTY.
22.1 All movable personal property of Tenant not removed from the
Premises upon vacation, abandonment, or termination of this Lease shall be
conclusively deemed abandoned and may be sold, or otherwise disposed of by
Landlord without notice to Tenant and without obligation to account; Tenant
shall pay Landlord's expenses in connection with such disposition.
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23. HOLDING OVER: TENANCY MONTH-TO-MONTH. If, after the expiration or
termination of this Lease, Tenant remains in possession of the Premises and
continues to pay rent without a written agreement as to such holding over, even
though Landlord accepts such rent, such possession is a tenancy from
month-to-month, subject to all provisions hereof but at a monthly rent
equivalent to 150% of the monthly Rent paid by Tenant immediately prior to such
expiration or termination. Rent shall continue to be payable in advance on the
first day of each calendar month. Such tenancy may be terminated by either party
upon 10 days' notice prior to the end of any monthly period. Nothing contained
herein obligates Landlord to accept rent tendered after the expiration of the
Term or relieves Tenant of its liability under Section 17.
24. PAYMENTS AFTER TERMINATION. No payments by Tenant after expiration
or termination of this Lease or after any notice (other than a demand for
payment of money) by Landlord to Tenant reinstates, continues, extends the Term,
or affects any notice given to Tenant prior to such payments. After notice,
commencement of a suit, or final judgment granting Landlord possession of the
Premises, Landlord may collect any amounts due or otherwise exercise Landlord's
remedies without waiving any notice or affecting any suit or judgment.
25. STATEMENT OF PERFORMANCE. Tenant agrees at any time upon not less
than 10 days' notice to execute and deliver to Landlord a written statement
certifying that this Lease is unmodified and in full force and effect (or, if
there have been modifications, that the same is in full force and effect as
modified stating the modifications); that there have been no defaults by
Landlord or Tenant (or, if there have been defaults, setting forth the nature
thereof); the date to which Rent has been paid in advance and such other
information as Landlord requests. Such statement may be relied upon by a
prospective purchaser of Landlord's interest or Mortgagee. Tenant's failure to
timely deliver such statement is conclusive upon Tenant that: (i) this Lease is
in full force and effect without modification except as may be represented by
Landlord; (ii) there are no uncured defaults in Landlord's performance; and
(iii) not more than 1 month's Rent has been paid in advance. Upon request,
Tenant will furnish Landlord an appropriate resolution confirming that the party
signing the statement is authorized to do so.
26. MISCELLANEOUS.
26.1 Transfer by Landlord. The term "Landlord" means so far as
obligations of Landlord are concerned, only the owner of the Building at the
time in question and, if any transfer of the title occurs, Landlord herein named
(and in the case of any subsequent transfers, the then grantor) is automatically
released from and after the date of such transfer of all liability as respects
performance of any obligations of Landlord thereafter to be performed. Any funds
in Landlord's possession at the time of transfer in which Tenant has an interest
will be turned over to the grantee and any amount then due Tenant under this
Lease will be paid to Tenant.
26.2 No Merger. The termination or mutual cancellation of this Lease
will not work a merger, and such termination or cancellation will at the option
of Landlord either terminate all subleases or operate as an automatic assignment
to Landlord of such subleases.
26.3 Common Area Use. Landlord may use any of the Common Areas for the
purposes of completing or making repairs or alterations in any portion of the
Building Complex.
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26.4 Independent Covenants. This Lease is to be construed as though the
covenants between Landlord and Tenant are independent and not dependent and
Tenant is not entitled to any setoff of the Rent against Landlord if Landlord
fails to perform its obligations; provided, however, the foregoing does not
impair Tenant's right to commence a separate suit against Landlord for any
default by Landlord so long as Tenant complies with Section 21.
26.5 Validity of Provisions. If any provision is invalid under present
or future laws, then it is agreed that the remainder of this Lease is not
affected and that in lieu of each provision that is invalid, there will be added
as part of this Lease a provision as similar to such invalid provision as may be
possible and is valid and enforceable.
26.6 Captions. The caption of each Section is added for convenience
only and has no effect in the construction of any provision of this Lease.
26.7 Construction. The parties waive any rule of construction that
ambiguities are to be resolved against the drafting party. Any words following
the words "include," "including," "such as," "for example," or similar words or
phrases shall be illustrative only and are not intended to be exclusive, whether
or not language of non-limitation is used.
26.8 Applicability. Except as otherwise provided, the provisions of
this Lease are applicable to and binding upon Landlord's and Tenant's respective
heirs, successors and assigns. Such provisions are also considered to be
covenants running with the land to the fullest extent permitted by law.
26.9 Authority. Tenant and the party executing this Lease on behalf of
Tenant represent to Landlord that such party is authorized to do so by requisite
action of Tenant and agree, upon request, to deliver Landlord a resolution.
similar document, or opinion of counsel to that effect.
26.10 Severability. If there is more than one party which is the
Tenant, the obligations imposed upon Tenant are joint and several.
26.11 Acceptance of Keys, Rent or Surrender. No act of Landlord or its
representatives during the Term, including any agreement to accept a surrender
of the Premises or amend this Lease, is binding on Landlord unless such act is
by a partner, member or officer of Landlord, as the case may be, or other party
designated in writing by Landlord as authorized to act. The delivery of keys to
Landlord or its representatives will not operate as a termination of this Lease
or a surrender of the Premises. No payment by Tenant of a lesser amount than the
entire Rent owing is other than on account of such Rent nor is any endorsement
or statement on any check or letter accompanying payment an accord and
satisfaction. Landlord may accept payment without prejudice to Landlord's right
to recover the balance or pursue any other remedy available to Landlord.
26.12 Building Name and Size. Landlord may as it relates to the
Building and Building Complex: increase the size by adding additional real
property, construct other buildings or improvements, change the location and/or
character, or make alterations or additions. If additional buildings are
constructed or the size is increased, Landlord and Tenant shall execute an
amendment which incorporates any necessary modifications to Tenant's Pro Rata
Share.
20
26.13 Diminution of View. Tenant agrees that no diminution of light,
air, or view from the Building entitles Tenant to any reduction of Rent under
this Lease, results in any liability of Landlord, or in any way affects Tenant's
obligations.
26.14 Limitation of Liability. Notwithstanding anything to the contrary
contained in this Lease, Landlord's liability is limited to Landlord's interest
in the Building.
26.15 Non-Reliance. Tenant confirms it has not relied on any
statements, representations, or warranties by Landlord or its representatives
except as set forth herein.
26.16 Written Modification. No amendment or modification of this Lease
is valid or binding unless in writing and executed by the parties.
26.17 Lender's Requirements. Tenant will make such modifications to
this Lease as may hereafter be required to conform to any lender's requirements,
so long as such modifications do not increase Tenant's obligations or materially
alter its rights.
26.18 Effectiveness. Submission of this instrument for examination or
signature by Tenant does not constitute a reservation of or option to lease and
it is not effective unless and until execution and delivery by both Landlord and
Tenant.
26.19 Survival. This Lease, notwithstanding expiration or termination,
continues in effect as to any provisions requiring observance or performance
subsequent to termination or expiration.
26.20 Time of Essence. Time is of the essence herein.
26.21 Rules and Regulations. If rules and regulations are attached
hereto, they are a part of this Lease and Tenant agrees that Tenant and Tenant's
Agents shall at all times abide by such rules and regulations.
26.22 Recording. Tenant will not record this Lease. Recording of the
Lease by or on behalf of Tenant is an Event of Default.
27. AUTHORITIES FOR ACTION AND NOTICE.
27.1 Unless otherwise provided, Landlord may act through Landlord's
Building Manager or other designated representatives from time to time.
27.2 All notices or other communications required or desired to be
given to Landlord must be in writing and shall be deemed received when delivered
personally to any officer, partner, or member of Landlord (depending upon the
nature of Landlord) or the manager of the Building (the "Building Manager") or
when deposited in the United States mail, postage prepaid, certified or
registered, return receipt requested, addressed as set forth in Section 1.10.
All notices or communications required or desired to be given to Tenant shall be
in writing and deemed duly served when delivered personally to any officer,
employee, partner, or member of Tenant (depending upon the nature of Tenant),
Tenant whose office is in the Building, when deposited in the United States
mail, postage prepaid, certified or registered, return receipt
21
requested, addressed to the appropriate address set forth in Section 1.12.
Either party may designate in writing served as above provided a different
address to which notice is to be mailed. The foregoing does not prohibit notice
from being given as provided in Rule 4 of Colorado Rules of Civil Procedure, as
amended from time to time.
28. PARKING. Of the 120 parking spaces in the Building Complex parking
lot, Landlord will make available to the tenant the number of parking spaces set
forth in Section 1.9. All parking spaces shall be non-assigned parking spaces in
the parking lot of the Building Complex. Tenant may also utilize additional
parking spaces in the parking lot unless and until such additional usage
adversely affects the rights of other tenants to use the parking spaces
allocated to such tenants. Notwithstanding the above, the rights granted to
Tenant to use all such spaces is a license only and excessive use of parking
spaces by other tenants shall not constitute a breach by Landlord of its
obligations hereunder and Tenant has no rights to use the parking lot except as
provided in this Section. All vehicles parked in the parking lot and the
personal property therein shall be at the sole risk of Tenant, Tenant's Agents
and the users of such spaces and Landlord shall have no liability for loss or
damage thereto for whatever cause.
29. BROKERAGE. Tenant represents it has not employed any broker with
respect to this Lease and has no knowledge of any broker's involvement in this
transaction except those listed in Sections 1.14 and 1.15 (collectively, the
"Brokers"). Tenant shall indemnify Landlord against any expense incurred by
Landlord as a result of any claim for commissions or fees by any other broker,
finder, or agent, whether or not meritorious, employed by Tenant or claiming by,
through, or under Tenant, other than the Brokers. Tenant acknowledges Landlord
is not liable for any representations by the Brokers regarding the Premises,
Building, Building Complex, or this Lease.
30. COUNTERPARTS. This Lease may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Any one or more
counterpart signature pages may be removed from one counterpart of the Lease and
annexed to another counterpart of the Lease to form a completely executed
original instrument without impairing the legal effect of the signature thereon.
31. EXHIBITS. See the Work Letter and Exhibits A, B, C, D and E
attached hereto and incorporated herein.
32. OPTIONS.
32.1 First Option. Landlord grants Tenant an option (the "First
Option") to extend the term of the Lease for one (1) additional term of five (5)
years (the "First Option Term"). The First Option applies only to the Premises
and is on the following conditions:
A. Notice of Tenant's interest in exercising the First Option must
be given to Landlord no earlier than fourteen (14) months and no later than
twelve (12) months prior to the Expiration Date.
B. Tenant's rights pursuant to this paragraph are personal to Tenant
and may not be assigned. Tenant's right to exercise the First Option is
conditioned on: (i) Tenant not being in default at the time of exercise or at
the time of commencement of the First Option Term;
22
and (ii) Tenant not having subleased or vacated more than 25% of the Premises or
assigned its interest under the Lease as of the commencement of the First Option
Term. Upon an assignment of the Lease, this Section is null and void.
C. The First Option granted hereunder will be upon the terms of the
Lease, except that the annual Base Rent during each year of the First Option
Term will be an amount equal to 115% of the Base Rent payable in the last year
of the Initial Term, as more specifically referenced in the commencement
agreement executed by Tenant on or about the Commencement Date.
D. After failure to exercise the First Option, Tenant shall have no
further rights to extend the Term.
32.2 Second Option. If Tenant exercises the First Option, Landlord
grants Tenant an additional option (the "Second Option") to extend the term of
the Lease for one (1) additional term of five (5) years (the "Second Option
Term"). The Second Option applies only to the Premises and is on the following
conditions:
A. Notice of Tenant's interest in exercising the Second Option must
be given to Landlord no earlier than fourteen (14) months and no later than
twelve (12) months prior to the last day of the First Option Term.
B. Tenant's rights pursuant to this paragraph are personal to Tenant
and may not be assigned. Tenant's right to exercise the Second Option is
conditioned on: (i) Tenant not being in default at the time of exercise or at
the time of commencement of the Second Option Term; and (ii) Tenant not having
subleased or vacated more than 25% of the Premises or assigned its interest
under the Lease as of the commencement of the Second Option Term. Upon an
assignment of the Lease, this Section is null and void.
C. The Second Option granted hereunder will be upon the terms of the
Lease, except that the annual Base Rent during each year of the Second Option
Term will be an amount equal to 115% of the Base Rent payable in the last year
of the First Option Term, as more specifically referenced in the commencement
agreement executed by Tenant on or about the Commencement Date.
D. After failure to exercise the Second Option, Tenant shall have no
further rights to extend the Term.
33. PERMIT CONTINGENCY. Tenant acknowledges and agrees that the Lease
and Landlord's obligations hereunder are contingent on Landlord's obtaining all
licenses, permits, approvals and consents necessary or required pursuant to
Applicable Laws to allow Landlord to construct Landlord's Work, as defined in
the attached Work Letter.
34. EXPANSION. The parties acknowledge that they will continue
discussions on terms similar to those stated in this Lease, regarding expansion
opportunities and needs of the Tenant; provided, however, that any such
understandings shall not be deemed valid or binding unless in writing and
executed by both parties.
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35. GUARANTY. It is understood and agreed concurrently with Tenant's
execution of this Lease, Tenant shall cause the form of Guaranty attached as
EXHIBIT E to be executed by the named Guarantor.
36. RIGHT OF FIRST REFUSAL. In the event that Landlord should elect to
sell all or any portion of the Premises during the Term, whether separately or
as a part of a larger parcel of which the Premises may be a part, Tenant shall
have the right of first refusal to meet any bona fide offer to purchase (an
"Offer") on the same terms and conditions as such Offer. If the Offer covers
other property in addition to the Premises, then the purchase price for the
Premises or portion thereof shall be separately stated, and Tenant shall have
the right to acquire the Premises or portion thereof without acquiring such
other property. The Offer may, at Landlords option, either be in the form of a
(i) term sheet or letter of intent setting forth the essential terms and
conditions of the proposed purchase and sale transaction ("LOI"), or (ii) fully
negotiated purchase and sale agreement ("Agreement"). Tenant's election to
purchase the Premises or portion thereof shall be exercised by Tenant's delivery
to Landlord of a notice of exercise, together with (a) a purchase and sale
agreement for the Premises or portion thereof on the same terms and conditions
contained in the LOI if the Offer shall be in the form of the LOI, or (b) the
Agreement signed by Tenant if the Offer shall be in the form of the Agreement
and (c) any xxxxxxx money deposit required to be deposited pursuant to the terms
and conditions of the LOI or Agreement. Upon Tenant's failure to accept the
Offer by delivery of the items referenced in the previous sentence within ten
(10) days after Tenant's receipt of the Offer from Landlord, then Landlord shall
be free to sell the Premises or portion thereof to such third party in
accordance with the terms and conditions of the Offer. If Tenant does not
exercise its right of first refusal as provided in this paragraph, and Landlord
does not close the transaction on the same business terms and conditions
contained in the Offer within one hundred eighty (180) days after the notice
thereof to Tenant, then such transaction shall not take place and the
requirements of this paragraph shall remain in full force and effect as to any
future Offers. In furtherance of the foregoing but not in limitation thereof, if
the Offer is in the form of the LOI and the purchase and sale agreement entered
(or to be entered into) between Landlord and the prospective purchaser is on
business terms and conditions which are materially different than those set
forth in the LOI, then such purchase and sale agreement shall constitute a new
Offer which shall be subject to the provisions of this paragraph. The covenants
of this paragraph are of a continuing nature and shall not be exhausted by one
or more sales of the Premises. This right of first refusal shall not apply to
the reorganization, merger, stock sales or transfers, membership transfers or
sales of Landlord.
IN WITNESS WHEREOF, the parties have executed this Lease as of the day
and year first above written and it is effective upon delivery of a
fully-executed copy to Tenant.
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LENDERS RESOURCE INCORPORATED, FDC OFFICE I, LLC, a Colorado limited
a Colorado corporation liability company
By: XxXXXXXXX MANAGEMENT
By: ___________________________ COMPANY, LLC, a Colorado limited
Print Name: ___________________ liability company
Print Title: President
By:_____________________________
Xxxx XxXxxxxxx, ________________
By: ___________________________
Print Name: ___________________ "Landlord"
Print Title: __________________
"Tenant"
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FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE ("Amendment") is entered into as of the
___ day of December, 1997, by and between FDC OFFICE I, LLC, a Colorado limited
liability company ("Landlord") and LENDERS RESOURCE INCORPORATED, a Colorado
corporation ("Tenant").
R E C I T A L S
A. Landlord and Tenant entered into an Office Lease dated August 4,
1997 ("Lease") for space known as Suite ____ in the Building known as
______________________________ Xxxxxxxx, Xxxxxxxx 00000 in the Rocky Mountain
Village Business Park ("Premises").
B. Landlord and Tenant now desire to further amend the terms of the
Lease as set forth below.
NOW, THEREFORE, for good and valuable consideration, Landlord and
Tenant hereby agree as follows:
1. Premises. The rentable square footage of the Premises is increased
by the addition of approximately 3931.6 rentable square feet located in Space 4
(the "Additional Space") as depicted on Exhibit A attached hereto and made a
part hereof by reference for the term of the Lease. As of the Additional Space
Commencement Date, as hereinafter defined, any reference to "Premises" in the
Lease includes the Additional Space as part of the Premises. Any references to
Premises shall now refer to approximately 19,810.6 rentable square feet, and
Tenant's occupancy thereof is subject to all terms of the Lease as otherwise
specifically herein provided.
2. Base Rent. The Minimum Rent for the Additional Space shall be
$50,127.90 ($4,177.33 per month) for the first year following the Additional
Space Commencement Date, as hereinafter defined, which amount shall be added to
be Base Rental amount as provided in Section 1.4, and shall be increased
thereafter as provided in the Section 1.4 of the Lease.
3. Operating Costs. Commencing on the Additional Space Commencement
Date, Tenant will pay Tenant's Pro Rata Share of Operating Expenses attributable
to the Additional Space (12.7%) in accordance with the Lease, thereby increasing
Tenant's Pro Rata Share for the Premises (including the Additional Space) for
periods commencing on or after the Additional Space Commencement Date to 64%.
4. Term. Tenant's right to occupy the Additional Space and its
obligation to pay Base Rent and its pro rata share of Operating Expenses
attributable thereto commences on July 1, 1998 (the "Additional Space
Commencement Date") and terminates with the term of the Lease.
5. Tenant Improvements. Tenant shall be entitled to a Tenant Finish
Allowance in the amount of $20.00 per rentable square foot for the Additional
Space. Such Allowance shall be made available to Tenant on the same terms and
conditions as provided in the Lease.
6. Other Terms and Conditions. If there is any conflict between the
terms or provisions of this Amendment and the terms and provisions of the Lease,
the terms and provisions of this Amendment shall govern. All other terms and
conditions of the Lease shall remain in full force and effect and be binding
upon the parties in accordance with their terms.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
the day and year first written above.
TENANT:
LENDERS RESOURCES INCORPORATED,
A COLORADO CORPORATION
By: ___________________________
Title: ________________________
LANDLORD:
FDC OFFICE I, LLC, A COLORADO LIMITED LIABILITY COMPANY
BY: XXXXXXXXX MANAGEMENT COMPANY, LLC, A COLORADO LIMITED
LIABILITY COMPANY, MANAGER
By: ___________________________
Title: ________________________
2
SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT TO LEASE ("Amendment") is entered into as of the
____ day of August, 1998, by and between FDC OFFICE I, LLC, a Colorado limited
liability company ("Landlord") and LENDERS RESOURCE INCORPORATED, a Colorado
corporation ("Tenant").
R E C I T A L S
A. Landlord and Tenant entered into an Office Lease dated August 14,
1997 ("Original Lease") for space known as Suite 200 in the Building known as
0000 Xxxxx Xxxx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000 in the Rocky Mountain Village
Business Park ("Premises").
B. Landlord and Tenant entered into that certain First Amendment to
Lease dated the 26th day of December, 1997 ("First Amendment"). The Original
Lease and First Amendment shall be collectively referred to herein as "Lease".
C. Landlord and Tenant now desire to further amend the terms of the
Lease as set forth below.
NOW, THEREFORE, for good and valuable consideration, Landlord and
Tenant hereby agree as follows:
1. Premises. The rentable square footage of the Premises is increased
by the addition of approximately 3536 rentable square feet located in Suite 120
(the "Additional Space") as depicted on Exhibit A attached hereto and made a
part hereof by reference for the term of the Lease. As of the Additional Space
Commencement Date, as hereinafter defined, any reference to "Premises" in the
Lease includes the Additional Space as part of the Premises. Any references to
Premises shall now refer to approximately 23,346.6 reportable square feet, and
Tenant's occupancy thereof is subject to all terms of the Lease as otherwise
specifically herein provided.
2. Base Rent. The Minimum Rent for the Additional Space shall be
$45,084.00 ($3757.00 per month) following the Additional Space Commencement
Date, as hereinafter defined, which amount shall be added to be Base Rental
amount as provided in Section 1.4, and shall be increased thereafter as provided
in the Section 1.4 of the Lease.
3. Operating Costs. Commencing on the Additional Space Commencement
Date, Tenant will pay Tenant's Pro Rata Share of Operating Expenses attributable
to the Additional Space (11.4%) in accordance with the Lease, thereby increasing
Tenant's Pro Rata Share for the Premises (including the Additional Space) for
periods commencing on or after the Additional Space Commencement Date to 75.4%.
4. Term. Tenant's right to occupy the Additional Space and its
obligation to pay Base Rent and its pro rata share of Operating Expenses
attributable thereto commences on the earlier of October 1, 1998 or when space
is turned over to tenant by landlord (the "Additional Space Commencement Date")
and terminates with the term of the Lease.
5. Tenant Improvements. Tenant shall be entitled to a Tenant Finish
Allowance in the amount of $15.56 per rentable square foot for the Additional
Space. Such Allowance shall be made available to Tenant on the same terms and
conditions as provided in the Lease.
6. Other Terms and Conditions. If there is any conflict between the
terms or provisions of this Amendment and the terms and provisions of the Lease,
the terms and provisions of this Amendment shall govern. All other terms and
conditions of the Lease shall remain in full force and effect and be binding
upon the parties in accordance with their terms.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
the day and year first written above.
TENANT:
LENDERS RESOURCES INCORPORATED,
A COLORADO CORPORATION
By: ___________________________
Title: ________________________
LANDLORD:
FDC OFFICE I, LLC, A COLORADO LIMITED LIABILITY COMPANY
BY: XXXXXXXXX MANAGEMENT COMPANY, LLC, A COLORADO LIMITED
LIABILITY COMPANY, MANAGER
By: ___________________________
Title: ________________________
2
EXHIBIT C TO LEASE
COMMENCEMENT CERTIFICATE
October 9, 1998
Lenders Resource Incorporated
0000 Xxxxx Xxxx Xxxxx Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
RE: Lease dated as of the 14th day of August, 1997; First Amendment to the
Lease dated as of the 260th day of December, 1997; and the Second
Amendment to the Lease dated as of the 18th day of August, 1998 (the
"Lease"), by and between FDC OFFICE I, LLC, a Colorado limited
liability company, as Landlord, and LENDERS RESOURCE INCORPORATED, a
Colorado corporation, as Tenant, pertaining to approximately 23,346.6
(Space #200 - 15879sf, Space #190 -3931.6sf, Space #120 - 3536sf)
rentable square feet of space located in Suite 200, 190 & 120 (the
"Premises") of the Building
Dear Tenant:
With regard to the referenced Lease, Landlord and Tenant acknowledge
the following initially capitalized words not otherwise defined have the same
meaning set forth in the Lease):
1. In accordance with the Lease and the First and Second Amendments the
Commencement Date for each space is as follows:
Space #200 - 12:01 a.m. on April 1, 1998,
Space #190 - 12:01 a.m. on July 1, 1998
Space #120 - 12:01 a.m. on October 1, 1998
and the Expiration Date for all three spaces is 12:00 midnight,
March 31, 2018.
2. In accordance with the Lease and the First and Second Amendments,
Base Rent is as follows:
Period Annual Monthly
------ ------ -------
Years 1- 5 $281,790.15 $23,482.52
Years 6 -10 $324,058.67 $27,004.89
Years 11-15 $372,667.47 $31,055.62
Years 16-20 $428,567.59 $35,713.97
Annual Monthly
------ -------
First Renewal Period
Years 21-25 $492,852.72 $41,071.06
Second Renewal Period
Years 26-30 $566,780.63 $47,231.72
Please acknowledge the foregoing by having an authorized officer sign
in the space provided below and return to our office. This document may be
executed, in counterparts, each of which shall constitute the original.
Facsimile signatures shall be binding as original signatures.
FDC OFFICE I, LLC, a Colorado limited
liability company
By: McWhinney Management Company,
LLC, Manager
By: _________________________________
Xxxx XxXxxxxxx,
Managing Member
"Landlord"
ACKNOWLEDGED AND AGREED this ____
Day of October 1998:
LENDERS RESOURCE INCORPORATED
By: _____________________________
Print Name: _____________________
Title: __________________________
ATTEST:
By: _____________________________
Print Name: _____________________
Title:___________________________
"Tenant"
2
THIRD AMENDMENT TO LEASE
(FDC Office I, LLC - Factual Data Corp.)
THIS THIRD AMENDMENT TO LEASE ("Third Amendment") is entered into as of
the ____ day of January, 2002, by and between FDC OFFICE I, LLC, a Colorado
Limited Liability Company ("Landlord"), and FACTUAL DATA CORP., a Colorado
Corporation, as successor by merger to LENDERS RESOURCE INCORPORATED, a Colorado
Corporation ("Tenant").
RECITALS
1. Landlord and Tenant entered into that certain Office Lease dated as
of August 14, 1997 ("Original Lease"), for space known as Suite 200 in the
Building commonly known as 0000 Xxxxx Xxxx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000
("Premises").
2. Landlord and Tenant entered into that certain First Amendment to
Lease dated as of December 26, 1997 ("First Amendment") and Second Amendment to
Lease dated as of August 18, 1998 ("Second Amendment").
3. The Original Lease, First Amendment and Second-Amendment shall be
hereinafter collectively referred to as the "Amended Lease."
4. Except as set forth herein, capitalized terms shall have the meaning
ascribed to such terms in the Amended Lease.
5. Landlord and Tenant desire to further amend the terms of the Amended
Lease as set forth below.
NOW, THEREFORE, for good and valuable consideration, Landlord and
Tenant hereby agree as follows:
1. Premises. The rentable square footage of the Premises is hereby
increased by the addition of approximately eight thousand seven hundred
thirty-nine (8,739) rentable square feet located in Suites 130, 160 and 170 of
the Building ("Additional Space") as depicted on Exhibit "A" attached hereto and
made a part hereof by reference for the term of the Amended Lease. As of the
Additional Space Commencement Date (defined below), any reference to "Premises"
in the Amended Lease shall include the Additional Space as part of the
"Premises." Any reference to the "Premises" shall hereafter refer to
approximately thirty-two thousand eighty-five and six/tenths (32,085.6) rentable
square feet, representing one hundred percent (100%) of the rentable square feet
in the Building, and Tenant's occupancy thereof is subject to all of the terms
of the Amended Lease as further amended herein.
2. Base Rent. The Base Rent for the Additional Space ("Additional Base
Rent") shall commence on the Additional Space Commencement Date. The amount of
the Additional Base Rent during the remainder of the Initial Term of the Amended
Lease and during the First Option Term and Second Option Term, if applicable,
shall be as follows:
Remainder of Initial Term
Annual Additional Monthly Additional
Period Base Rent Base Rent
------ ----------------- ------------------
Additional Space
Commencement Date -
03/31/07 $130,211.16 $10,850.93
04/01/07 - 03/31/12 $149,742.84 $12,478.57
04/01/12 - 03/31/17 $172,204.32 $14,350.36
04/01/17 - 03/31/18 $198,034.92 $16,502.91
First Option Term
Annual Additional Monthly Additional
Period Base Rent Base Rent
------ ----------------- ------------------
04/01/18 - 03/31/22 $198,034.92 $16,502.91
04/01/22 - 03/31/23 $227,740.20 $18,978.35
Second Option Term
Annual Additional Monthly Additional
Period Base Rent Base Rent
------ ----------------- ------------------
04/01/23 - 03/31/27 $227,740.20 $18,978.35
04/01/27 - 03/31/28 $261,901.20 $21,825.10
The Additional Base Rent as set forth in this Section 2 shall be added
to the Base Rent set forth in Section 1.4 of the Amended Lease and, if
applicable, the Base Rent during the First Option Term and Second Option Term
set forth in Section 33 of the Amended Lease.
3. Operating Costs. Commencing on the Additional Space Commencement
Date, Tenant will pay Tenant's Pro Rata Share of Operating Expenses attributable
to the Additional Space (i.e., 27.3 percent) in accordance with the Amended
Lease, thereby increasing Tenant's Pro Rata Share for the Premises (including
the Additional Space) for periods commencing on or after the Additional Space
Commencement Date to 100 percent. Tenant acknowledges and agrees that Tenant's
Pro Rata Share of Operating Expenses includes Tenant's Pro Rata Share of
assessments for (i) The City of Loveland, Colorado Special Improvement District
No. 1 with respect to the payment of certain public improvements and (ii) City
of Loveland High Plains Environmental Center Special Improvement District No. 2
with respect to the payment of the maintenance of the High Plains Environmental
Center.
2
4. Term. Tenant's right to occupy the Additional Space and its
obligation to pay Additional Base Rent and Tenant's Pro Rata Share of Operating
Expenses attributable thereto shall commence upon the earlier of: (i) April 1,
2002 or (ii) the date upon which a temporary or permanent certificate of
occupancy is issued by the City of Loveland, Colorado, for the Additional Space
permitting the lawful occupancy and use of the Additional Space by Tenant for
the Permitted Use ("Additional Space Commencement Date") and shall terminate
upon expiration of the term of the Amended Lease.
5. Tenant Improvements. Tenant shall be entitled to a Tenant
Improvement Allowance in the amount of Ten Dollars ($10.00) per rentable square
foot for the Additional Space for a total Tenant Improvement Allowance of
Eighty-Seven Thousand Three Hundred Ninety Dollars ($87,390.00). Such Tenant
Improvement Allowance shall be made available to Tenant on the same terms and
conditions as provided in the Amended Lease, except that there shall be deducted
from the Tenant Improvement Allowance, an amount equal to five percent (5%) of
the total cost of the Tenant Finish completed within the Additional Space, which
sum of money shall be paid to McWhinney Real Estate Services, Inc., a Colorado
Corporation, for supervision and management of the Tenant Finish.
6. Additional Rent for Tenant Finish. For the purpose of reimbursing
Landlord for the Tenant Improvement Allowance, and in addition to the payment of
increased Base Rent pursuant to Section 2 above, Tenant shall pay to Landlord at
the same time and in the same manner as Rent is paid, the additional sum of One
Thousand Two Hundred Forty-One Dollars and Thirty-Eight Cents ($1,241.38) per
month commencing on the Additional Space Commencement Date and continuing each
month thereafter until the tenth (10th) anniversary of the Additional Space
Commencement Date ("Tenant Finish Reimbursement"). The Tenant Finish
Reimbursement shall not be subject to increase during the ten (10) year term
thereof but shall otherwise be subject to all other terms and provisions of the
Amended Lease, including the Landlord's remedies in the event of a default in
the payment thereof by Tenant.
7. Other Terms and Conditions. If there is any conflict between the
terms and provisions of this Third Amendment and the terms and provisions of the
Amended Lease, the terms and provisions of this Third Amendment shall govern.
All other terms and provisions of the Amended Lease shall remain in full force
and effect and be binding upon the parties in accordance with their terms.
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IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
the day and year first above written.
FDC OFFICE I, LLC, a Colorado Limited
Liability Company
By: McWhinney Real Estate Services, Inc.,
a Colorado Corporation, Manager
By: ___________________________________
Xxxx X. XxXxxxxxx
President
"Landlord"
FACTUAL DATA CORP., a Colorado Corporation,
as successor by merger to LENDER'S RESOURCE
INCORPORATED, a Colorado Corporation
By: ________________________________________
Name/Title
"Tenant"
4
