FOREST PARK OFFICE BUILDING LEASE
EXHIBIT
10.12
FOREST
PARK
THIS
LEASE is made and executed this 27th day of September, 0000, xxxxxxx XXXXXX
XXXX
REALTY INVESTMENTS, LLC, A Colorado limited liability company (hereinafter
referred to as "Landlord"), and Patria
Corporation, Inc. ("Tenant").
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1.
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PREMISES:
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Landlord
hereby leases to Tenant and Tenant hereby rents from Landlord those certain
premises designated on the Plan attached hereto as Exhibit "A" (the "Premises"),
and by this reference made a part hereof, said Premises consisting of
approximately 1,423
rentable
square feet of space comprising of Suite #G-120
in the
building and located in the garden level of 0000 Xxxxxxxxx Xxxxx, Xxxxxx,
Xxxxxxxx 00000, (hereinafter the "Building"), together with a non-exclusive
license, subject to the provisions hereof, to use all appurtenances thereunto,
including, but not limited to, plaza areas, and any other areas designated
by
Landlord for use by tenants of the building. (The Building, plaza areas, other
areas and appurtenances, plus the real property on which the same is situated
being more particularly described in Exhibit "B" attached hereto, and by this
reference made a part hereof are hereinafter collectively sometimes called
the
"Building Complex.") Said letting and renting are upon and subject to the terms,
covenants and conditions set forth herein, and Tenant covenants as a material
part of the consideration for this Lease to keep and perform each and all of
said terms, covenants, and conditions by it to be kept and performed, and this
Lease is made upon the condition of such performance subject to liens,
covenants, easements and restrictions of record.
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2.
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TERM:
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The
term
of this Lease shall commence at 12:00 Noon on November
1, 2005
and
terminate at 12:00 Noon on October
31, 2010,
unless
sooner terminated pursuant to this lease.
| 3. |
RENT:
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Subject
to the provisions hereinafter set forth, Tenant shall pay to Landlord, as base
rent for the term of this Lease, the sum of Eighty
Three Thousand Two Hundred Forty five and no/100
Dollars
($83,245.00)
in coin
or currency of United States (the "Base Rent") which sum shall be payable in
sixty
(60)
monthly
installments as follows:
Year
1
(11/1/05
- 10/31/06) = $10.70
per rsf or $1,268.84/mo.
Year
2 (11/1/06
- 10/31/07) = $11.20
per rsf or $1,328.13/mo.
Year
3 (11/1/07
- 10/31/08) = $11.70
per rsf or $1,387.42/mo.
Year
4 (11/1/08
- 10/31/09) = $12.20
per rsf or $1,446.71/mo.
Year
5 (11/1/09
- 10/31/10) = $12.70
per rsf or $1,506.00/mo.
Rent
for
the first three months (November 2005 through January 2006) in the amount of
$3,806.52 shall be payable at the time this lease is executed. Thereafter,
regular rent payments shall continue as of February 1, 2006, plus any excise,
privilege, gross receipts or sales tax levied on the rentals or the receipt
thereof by Landlord. If Tenant takes possession not on the first day of the
month, then the installments of the Base Rent for the first and last months
of
the term hereof shall be prorated based upon the number of days during each
of
said months that the Lease terms are in effect. All other installments of the
Base Rent shall be payable on the first day of each calendar month during the
term hereof. All Base Rent or other rentals or sums due hereunder shall be
paid
in advance without deduction or offset at the office of Landlord or to such
other person or at such other place as Landlord may designate in writing. In
the
event that the Base Rents due Landlord are paid later than the fifth day of
the
month when due, a late fee of ten percent (10%) of the installment due shall
be
due and payable by Tenant as additional rent. The parties agree that calculation
of the exact costs Landlord will incur if Tenant makes late payments would
be
difficult to determine, but will include processing and accounting charges
and
late charges which may be imposed upon Landlord under the terms of any mortgage
or deed of trust constituting a lien on the Premises. The parties agree that
the
late fee provided herein is a fair and reasonable estimate of the costs Landlord
will incur.
If
any
rents or other amounts owing under this Lease are not paid within twenty (20)
days after they are due, such amounts shall bear interest at the rate of
eighteen percent (18%) per annum from the due date of such payment, until
received by Landlord. Similarly, any amounts paid by Landlord to cure any
defaults of Tenant under this Lease, which Landlord shall have the right, but
not the obligation to do, shall, if not repaid by Tenant within ten (10) days
or
demand by Landlord thereafter bear interest at the above rate until received
by
Landlord.
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4.
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OPERATING
EXPENSE AND TAX
ADJUSTMENTS:
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It
is
hereby agreed that during each calendar year of the term hereof, Tenant shall
pay to Landlord Tenant's Prorata Share of the amount of the increase in the
Operating Expenses and Real Estate Taxes for the immediately preceding calendar
year over Tenant's Prorata Share of the Base Operating Expenses and Base Real
Estate Taxes (as herein below defined). It is hereby agreed that the
determination of increase in Operating Expenses shall be segregated from the
determination of increase of Real Estate Taxes, and one shall not be netted
against the other.
A. Tenant's
Prorata Share:
Based on
the premises occupied by Tenant, "Tenant's Prorata Share" shall be equal to
1.29
percent
(1.29%) of the rentable space in the property. At such time, if ever, any space
is added to the Lease as hereinbelow provided, Tenant's Prorata Share shall
be
increased accordingly.
B. Operating
Expenses and Real Estate Taxes:
The
Landlord herewith agrees to expend as its share of Operating Expenses paid
for
and sustained by the Landlord during any calendar year an amount not greater
than the actual expenses in the year 2005, said amount being referred to as
the
Base Operating Expenses. This amount shall constitute the maximum payable by
the
Landlord as its contribution toward Operating Expenses.
-2-
"Operating
Expenses" shall mean all operating expenses of any kind or nature with respect
to the Building Complex and shall include, but not be limited to, the cost
of
building supplies; costs incurred in connection with all energy sources for
the
Building such as propane, butane, natural gas, steam, electricity, solar energy
and fuel oil; the costs of water and sewer service, janitorial services, general
maintenance and repair of the Building Complex, including the heating and air
conditioning systems and structural components of the Building (as used in
the
Lease, "Structural Components" shall mean and include: the structural members
of
the Building, all mechanical, electrical, plumbing, heating, and air
conditioning systems; and elevators); snow removal, trash collection,
landscaping, maintenance, repair and striping of all parking areas used by
tenants of the Building; insurance, including fire and extended coverage and
public liability insurance and any rental insurance and all risk insurance
(should Landlord decide to carry the same)(but Tenant shall have no interest
in
such insurance or the proceeds thereof); labor costs incurred in the operating
and maintenance of the Building Complex, including wages and other payments;
costs to Landlord for workmen's compensation and disability insurance, payroll
taxes and welfare fringe benefits; professional building management fees, legal
accounting, inspection and consultation fees incurred in connection with the
Building Complex; any expense attributable to costs incurred by Landlord for
any
capital improvements or Structural Component repairs to the Building Complex
required by any change in the laws, ordinances, rules, regulations or otherwise
which were not in effect on the date Landlord obtained its building permit
to
construct the Building Complex required by any governmental or
quasi-governmental authority having jurisdiction over the Building Complex,
which costs shall be amortized over the useful life of the capital improvement
or Structural Component repaired; capital expenditures or repairs of an energy,
conservation or security nature, or to accommodate the Americans with
Disabilities legislation or any expense required by any change in laws, rules,
regulations, orders or any other governmental or quasi-governmental authority
having jurisdiction, in which case such expenditures shall be amortized over
the
life of the improvements; and any costs incurred by Landlord in making capital
improvements or other modification to the Building Complex or any part thereof
which reduces the Operating expenses, which costs shall be amortized over the
useful life of such improvement or modification; provided, however, the annual
amortization amount shall not exceed the reduction in Operating Expenses as
projected by Landlord's accountant for the relevant year, and the amortization
schedule shall be extended accordingly, if necessary. If the Building is not
fully occupied during any calendar year, the Operating Expenses for the year
in
question shall be adjusted to reflect a ninety-five percent (95%) occupancy
of
the Building. Operating Expenses shall expressly exclude costs of maintenance
and repair reimbursed by insurance proceeds, alterations or other specific
costs
attributable solely to other tenants' space in the Building and billed to such
tenants, leasing commissions, advertising expenses and other costs incurred
in
leasing space in the Building, and any interest on borrowed money or debt
amortization.
Operating
Expenses shall expressly exclude costs of maintenance and repair reimbursed
by
insurance proceeds, alterations or other specific costs attributable solely
to
other tenants’ space in the Building Complex, leasing commissions, marketing
costs, advertising expenses and other costs incurred in leasing space in the
Complex, depreciation, amortization, any interest on borrowed money or
debt.
-3-
"Real
Estate Taxes" shall include: (a) any form of assessment (including any so-called
"special" assessment), license fee, license tax, business license fee, business
license tax, commercial rental tax, levy, charge, penalty or tax, imposed by
any
authority having the direct power to tax, including any city, county, state
or
federal government, or any school, agricultural, lighting, water, drainage
or
other improvement or special district thereof, against the Premises, the
Building or Building Complex, or any legal or equitable interest of Landlord
therein; (b) any tax on Landlord's right to rent the Premises or against
Landlord's business of leasing the Premises; and (c) any assessment, tax, fee,
levy or charge in substitution, partially or totally, of or in addition to
any
assessment, tax, fee, levy or charge previously included within the definition
of Real Estate Taxes which may be imposed by governmental agencies for such
services as fire protection, street, sidewalk and road maintenance, refuse
removal and for other governmental services formerly provided without charge
to
property owners of occupants. It is the intention of Landlord and Tenant that
all such new and increased assessments, taxes, fees, levies and charges be
included within the definition of Real Estate Taxes for purposes of this Lease.
The following shall also be included within the Lease; provided, however, that
Tenant shall pay Landlord the entire amount thereof: (i) any tax allocable
to or
measured by the area of the Premises or the rental payable hereunder, including
without limitation, any gross income, privilege, sales or excise tax levied
by
the State, any political subdivision thereof, city, municipal or federal
government, with respect to the receipt of such rental, or upon or with respect
to the possession, leasing, operating, management, maintenance, alteration,
repair use or occupancy by Tenant of the premises or any portion thereof, and
(ii) any tax upon this transaction or any document to which Tenant is a party,
creating or transferring an interest or an estate in the Premises. "Real Estate
Taxes" shall not include Landlord's federal or state income, franchise,
inheritance or estate taxes.
C. Adjustment
Mechanism -- Operating Expenses and Real Estate Taxes:
Within
ninety (90) days after the end of each calendar year, or as close to such date
as possible, the Landlord shall furnish the Tenant in writing with a comparative
statement showing the calculations described in this Section 4 above and state
the increases, if any, in operating expenses for the then current year.
Commencing with the next month following such statement, the Tenant shall pay
the Landlord a lump sum equal to one-twelfth (1/12th) of the annual increase
for
each month of the immediate preceding calendar year and for each month of the
current calendar year which has passed since the Commencement Date of this
Lease. With the same payment, the Tenant shall commence payment to the landlord
of one-twelfth (1/12th) of the annual increase by adding that amount to the
regular monthly rent installments. The increased monthly rent installments
shall
continue until the Landlord gives the Tenant the next written notice calculating
any additional rent increases for future calendar years upon which the same
procedures for payment shall apply. If the total additional rent payments by
the
Tenant to the landlord for any further calendar years are found at year end
to
vary from the actual additional rents due for that year, the Tenant shall pay
the Landlord any deficiency as additional rent upon notice of the actual amount,
and the Landlord shall credit any excess to the next succeeding additional
rent
installments becoming due. Any such excess in the least year of the Lease will
be refunded by the Landlord to the Tenant within sixty (60) days after the
expiration of the Lease, but only if the Tenant is not in default and has
vacated the Premises.
-4-
Even
though the term of this Lease has expired and the Tenant has vacated the
Premises, when the final determination is made of the Tenant's share of
Operating Expenses and/or Real Estate Taxes for the year in which this Lease
terminates, within sixty (60) days the Tenant shall pay any increase due over
the estimated Operating Expenses and Taxes and conversely, within sixty (60)
days the Tenant shall be rebated any overpayment due under the estimated
Operating Expenses and Taxes.
Notwithstanding
anything contained within this Section to the contrary, Tenant shall not be
relieved of its obligation to pay to Landlord any amount due pursuant to this
Section 4 should Landlord fail, for any reason, to provide its comparative
statement within the time provided for hereinabove.
Notwithstanding
anything contained in this Section 4, the rental payable by the Tenant shall
in
no event be less than the rental specified in Section 3 hereof.
| 5. |
CHARACTER
OF OCCUPANCY:
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The
Premises are to be used for general offices of a financial institution with
a
depository operation (including by way of example and not by way of limitation,
legal offices and all accounting, billing and administrative tasks associated
therein) and for no other purpose without the prior written consent of Landlord,
which consent will not be unreasonably withheld.
Further,
Tenant shall not use or permit the Premises to be used for any ultra hazardous
purpose which will increase the existing rate of insurance upon the Building
or
the Building Complex, pursuant to insurance regulations of the Colorado State
Insurance Commissioner, or result in a cancellation of any insurance policy
covering the building, the Building Complex, or any part thereof, pursuant
to
generally accepted insurance industry underwriting procedures; provided,
however, that if such use is necessary to Tenant's business, Tenant may use
the
Premises for such ultra hazardous purpose if Tenant makes arrangements for
alternative insurance upon the Building and/or the Building Complex equivalent
to Landlord's existing insurance and Tenant pays all insurance premiums in
excess of those which would have been due by Landlord under Landlord's
equivalent alternative insurance. Tenant shall not use any apparatus, machinery
or device in or about the Premises which shall make any noise or set up any
vibration, with the exception of security systems, mailing equipment, standard
depository institution equipment and computers, which will materially disturb
other tenants. Other than standard office and financial institution equipment
(including computer equipment), Tenant shall not in any way increase the amount
of electricity, gas or water agreed to be furnished or supplied under this
Lease; and Tenant further agrees not to connect with electrical wires or water
pipes any other apparatus, machinery or device without prior consent of Landlord
which consent shall not be unreasonably withheld. Tenant shall not commit waste
nor suffer or permit waste to be committed nor permit any nuisance in or about
the Premises.
Tenant
and employees and all persons visiting or doing business with the Tenant in
the
Leased Premises shall be bound by and shall observe the Rules and Regulations
attached to this Lease as Exhibit "C". Landlord may propose and submit to Tenant
for Tenant's approval such further and other reasonable written rules and
regulations relating to the Building Complex or the Leased Premises which
Landlord shall deem appropriate. Such proposed rules and regulations shall
become effective upon approval by Tenant, which approval shall not be
unreasonably withheld for a period in excess of thirty (30) days of receiving
written notice from Landlord of such proposed rules or regulations, giving
Landlord a written explanation of the basis for Tenant's disapproval. Any such
additional rules and regulations shall, upon approval by Tenant, be deemed
to be
incorporated and formed into this Lease. Any uncured default in the performance
or observance of the rules and regulations shall be in default hereunder and
Landlord shall have all remedies provided for in this Lease in the event of
default by Tenant. Landlord, however, shall not be responsible to Tenant for
non-observance by any other tenant or person of any such rules and regulations;
provided, however, that Landlord has and continues to make reasonable efforts
to
obtain compliance with such rules and regulations by all other
tenants.
-5-
Tenant
shall not use the Premises or permit anything to be done in or about the
Premises which will, in any way, conflict with any law, statute, ordinance
or
governmental rule or regulation now in force or which may hereafter be enacted
or promulgated.
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6.
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SERVICE
AND UTILITIES:
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Landlord
agrees, without charge, except as provided herein, and in accordance with
standards from time to time prevailing for office buildings in the Metro Denver,
Colorado area, to use reasonable efforts to furnish water to the Building for
use in lavatories and drinking fountains (and to the Premises if the plans
for
the Premises so provide); to furnish heated or cooled air to the Premises as,
in
the judgment of Landlord, may be reasonably required for the comfortable use
and
occupancy of the Premises during ordinary business hours (7:00 A.M. to 6:00
P.M.
Monday through Friday and 7:00 A.M. to 12:00 Noon Saturday, excluding legal
holidays); to provide janitorial services for the Premises (except such
janitorial services as Tenant may elect to supply directly), such janitorial
services to be provided five (5) times a week, excluding legal holidays; and
during ordinary business hours to furnish electric current for lighting the
Premises and public halls. Such janitorial services shall not include an
obligation by Landlord to provide for the cleaning of private bathrooms nor
require shampooing of Tenant's floor coverings or cleaning Tenant's draperies
or
other improvements which are not defined as building standard. In regard to
electricity, it is understood that Tenant shall use such electric current only
for building standard lighting, desktop computers and servers, copiers,
scanners, facsimiles, modems, and equipment typically used in a depository
institution, which shall not at any time exceed the capacity of the standard
xxxxx per square foot guideline established for landlord by its electrical
consultants, and to the extent that electric current is used for any other
purpose, including computer areas, Tenant's rent may be increased from time
to
time by Landlord in such amounts as Landlord reasonably determines to cover
the
actual costs of such increased use. If Tenant shall require water, electric
current, heat or air conditioning in excess of that usually furnished or
supplied for use of the Premises as general office space, as determined solely
by Landlord, Tenant shall first procure the consent of Landlord for the use
thereof, which consent shall not be unreasonably withheld. Tenant agrees to
pay
to Landlord such amounts as Landlord reasonably determines are necessary to
cover the actual costs of such increased use. In the event of excessive water
or
electric use by Tenant, Landlord may, at its option and at Tenant's expense,
require a water meter or electric current meter to be installed in the premises
to assist Landlord in determining the amount by which Tenant's rent should
be
increased. The cost of such meters and installation, maintenance and repair
thereof shall be paid for by tenant. Such increases shall be paid monthly.
Tenant may request Landlord to furnish utilities and services for use by Tenant,
it customers and employees during times other than normal business hours.
Landlord shall not unreasonably withhold approval of the request, provided
Tenant shall pay as additional rent the actual cost of such utilities and
services and shall comply with Landlord's Rules and Regulations with respect
to
use of the utilities and services during extended hours.
-6-
Wherever
machines or equipment which generate heat either as a prime purpose or as an
incidental effect are used by Tenant in the Premises which affect the
temperature otherwise maintained by the air conditioning system, Landlord
reserves the right to install supplementary air conditioning units in the
Premises, and the cost therefor, including the cost of installation, operating
and maintenance thereof shall be paid by Tenant to Landlord upon demand by
Landlord.
Tenant
agrees that Landlord shall not be liable for failure to supply any such heating,
air conditioning, elevator, electrical, janitorial, lighting or other services
during any period when Landlord uses reasonable diligence to supply such
services, or during any period Landlord is required to reduce or curtail such
services pursuant to any applicable laws, rules or regulations nor or hereafter
in force or effect, it being understood that Landlord may discontinue, reduce
or
curtail such services, or any of them (either temporarily or permanently),
at
such times as it may be necessary by reason of accident, unavailability of
employees or materials at reasonable cost, repairs, alterations, improvements,
strikes, lockouts, riots, acts of God, application of applicable laws, statutes,
rules and regulations, governmental or utility moratoriums, or curtailments,
or
due to any other happening beyond the control of Landlord. In the event of
any
such interruption, reduction or discontinuance of Landlord's services (either
temporary or permanent), Landlord shall not be liable for damages to persons
or
property as a result thereof, nor shall the occurrence of any such event in
any
way be construed as an eviction of Tenant, or cause or permit an abatement,
reduction or setoff of rent, or operate to release Tenant from any of Tenant's
obligations hereunder.
Prior
to
delinquency, Tenant shall pay for all telephone, cable and data/ communication
service, and all other materials and services not expressly required to be
paid
by Landlord which may be furnished to or used by Tenant in, on or about the
Premises during the term of this Lease.
7. QUIET
ENJOYMENT:
Subject
to the liens and the burdens of record, Landlord agrees to warrant and defend
Tenant in the quiet enjoyment and possession of the Premises during the term
of
this Lease so long as Tenant complies with the provisions hereof.
-7-
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8.
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MAINTENANCE,
REPAIRS, ALTERATIONS AND
ADDITIONS
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A.
Maintenance
and Repairs:
Landlord shall maintain in good order, condition and repair the external and
structural parts of the Building, heating, ventilating, air conditioning,
plumbing, sewer and electrical systems of the Building and all other portions
of
the Building Complex not the obligation of Tenant or any other tenant in the
Building; provided, however, that Landlord shall not be liable for any damages
direct, indirect or consequential, or for damages for personal discomfort,
illness or inconvenience of the Tenant, or the Tenant's employees, invitees
or
other persons by reason of failures of such equipment, facilities or systems
or
reasonable delays in the performance of such repairs, replacements and
maintenance, unless caused by the gross negligence of the Landlord, its
servants, agents or employees.
Tenant,
at Tenant's sole cost and expense, except for services furnished by Landlord
pursuant to Section 6 hereof, shall maintain the Premises in good order,
condition and repair including the interior surfaces of the ceilings, walls
and
floors, all doors, interior windows, all plumbing pipes, electrical wiring,
switches, fixtures and special items in excess of building standard furnishings
and equipment installed by or at the expense of Tenant. Tenant expressly waives
the benefits of any statute, ordinances or other rule of law now or hereafter
in
effect which would otherwise afford Tenant the right to make repairs at
Landlord's expense or to terminate this Lease because of landlord's failure
to
keep the Premises in good order, condition and repair.
In
the
event Tenant fails to maintain the Premises in good order, condition and repair,
Landlord shall give Tenant notice to do such acts as are reasonably required
to
so maintain the Premises. In the event Tenant fails to promptly commence, upon
demand by Landlord, such work and diligently prosecute it to completion, then
landlord shall have the right, but shall not be required, after reasonable
notice, except in the case of emergency, to do such acts and expend such funds
as are reasonably required to perform such work. Landlord shall have no
liability to Tenant for any damage, inconvenience or interference with the
use
of the Premises by Tenant as a result of performing any such work. Tenant shall
pay to Landlord on demand the cost of such work plus fifteen percent
(15%).
Tenant
shall pay on demand the cost of replacement of any glass broken on the Leased
Premises by virtue of the negligence of the Tenant, its employees or invitees,
including outside windows and doors on the perimeter of the Leased Premises
during the continuance of this Lease, unless the glass shall be broken by
Landlord, its employees or agents.
Landlord
and Tenant shall each do all acts required to comply with all applicable laws,
ordinances, regulations and rules of any public authority relating to their
respective maintenance obligations as set forth herein.
B.
Alterations
and Additions:
Tenant
shall make no alterations, additions or improvements to the Premises or any
part
thereof without obtaining the prior written consent of Landlord, which consent
shall not be withheld if the alterations, additions or improvements are of
a
non-structural, non-electrical, or non-mechanical nature or cost less than
$25,000; provided, however, that all alterations, additions or improvements
are
of a quality which equal or exceed the then current building standard and
further provided that Tenant must notify Landlord of the work to be done in
advance thereof. Except for the foregoing, Landlord's consent cannot be withheld
for any reason. Landlord may impose, as a condition to the aforesaid consent,
such requirements as Landlord may deem necessary in its reasonable discretion,
including without limitation thereof, the manner in which the work is done,
a
right to require Tenant to use Landlord's contractor or a right of approval
of
the contractor by whom the work is to be performed, the times during which
the
work is to be accomplished, the right to require Tenant to provide Landlord
with
plans and specifications in regard to the work, and the right to require Tenant
to pay Landlord for the cost of reviewing such plans, not to exceed $500 per
review.
-8-
All
alterations and additions to the Premises including, by way of illustration
but
not by limitation, all partitions, paneling, carpeting, drapes or other window
coverings and light fixtures (but not including movable office furniture not
attached to the Building) shall be deemed a part of the real estate and the
property of Landlord and shall remain upon and be surrendered with the Premises
as part thereof without molestation, disturbance or injury at the end of said
term, whether by lapse of time or otherwise, unless Landlord, by notice given
to
Tenant no later than thirty (30) days prior to the end of the term, shall elect
to have Tenant remove all or any of such alterations or additions (which are
not
included as Building Standard Improvements) and in such event, Tenant shall
promptly remove, at its sole cost and expense, such alterations and additions
and restore the Premises to the condition in which the Premises were prior
to
the making of the same, reasonable wear and tear excepted. Notwithstanding
the
foregoing, Tenant shall not be required to remove or restore those improvements
made at the commencement of this Lease and Tenant’s initial improvements made in
the first year of the Lease term.
If
Landlord authorizes persons requested by Tenant to perform any alterations,
repairs, modifications or additions to the Premises, prior to the commencement
of any such work, Tenant shall on request deliver to Landlord such payment
and
performance bonds or other security which Landlord may require, and certificates
issued by insurance companies qualified to do business in the State of Colorado,
evidencing that workmen's compensation, public liability insurance and property
damage insurance, all in amounts, with companies and on forms satisfactory
to
Landlord, are in force and effect and maintained by all contractors and
subcontractors engaged by Tenant to perform such work. All such policies shall
name Landlord as an additional insured. Each such certificate shall provide
that
the same may not be canceled or modified without thirty (30) days prior written
notice to Landlord. Further, Tenant shall permit Landlord to post the Premises
so that Landlord may avail itself of the provisions of the Colorado Mechanic's
Lien Law, and shall comply with all requirements related to prevention of
mechanic’s liens as stated in Section 10 hereafter.
C.
Miscellaneous:
Landlord may, but shall not be obligated to make, any improvements to or repairs
of any kind or character on the Premises during the term of this Lease, except
such repairs as may be necessary for normal maintenance operations.
Notwithstanding the foregoing, Landlord shall repair and maintain the structural
portions of the Building, including the basic plumbing, air conditioning,
heating, electrical systems, and elevator systems installed by Landlord, unless
the conditions requiring such maintenance and repairs is caused in part or
in
whole by the act, neglect, fault or omission of any duty by the Tenant, its
agents, servants, employees or invitees, in which case Tenant shall pay Landlord
the cost of such maintenance and repairs plus an additional charge of fifteen
percent (15%) to cover Landlord's overhead, which work shall be performed by
Landlord and/or its contractors.
-9-
9. ENTRY
BY LANDLORD.
Landlord
and its agents shall have the right to enter the Premises during normal business
hours (subject, however, to Tenant’s reasonable security requirements which may
prohibit access except when accompanied by Tenant’s authorized security
personnel) for the purpose of examining or inspecting the same, to supply
janitorial services and any other services to be provided by Landlord or Tenant
hereunder, to obtain access to under-floor ducts, utility access panels, and
mechanical shafts (which Tenant agrees not to obstruct), to check, calibrate,
adjust, and balance controls and other parts of the heating, ventilating, and
climate control system, to show the same to prospective purchasers or tenants
of
the Building, and to make such alterations, repairs, improvements or additions
to the Premises or to the Building of which they are a part as Landlord may
deem
necessary or desirable. Landlord shall not be liable to Tenant or be obligated
to compensate Tenant for any inconvenience which Tenant may experience as a
result of such entry. In the event of an emergency, if Tenant shall not be
personally present to open and permit an entry into the Premises at any time
when such entry by Landlord is necessary or permitted hereunder, Landlord may
enter by means of a master key without liability to Tenant except for any
failure to exercise due care for Tenant's property, and without affecting this
Lease. If, during the last month of the term hereof, Tenant shall have removed
substantially all of its property therefrom, Landlord may immediately enter
and
alter, renovate and redecorate the Premises without elimination or abatement
of
rent or incurring liability to Tenant for any compensation. Such entry shall
not
be construed as a manifestation by the Landlord of an intent to terminate this
Lease Agreement. Landlord, during the entire term of this Lease, shall have
the
right, upon ninety (90) days' prior written notice to Tenant, to change the
number, designation or name of the Building without liability to Tenant. Tenant
shall not, without the prior consent of landlord, change the locks or install
additional locks on any entry door or doors to the Premises. Tenant shall permit
Landlord or its agents to exhibit and show the Premises to prospective tenants
during ordinary business hours during the last six (6) months of the term of
this Lease or any renewal thereof.
10. MECHANIC'S
LIENS:
Tenant
shall pay or cause to be paid all costs for work done by Tenant or caused to
be
done by Tenant on the Premises of a character which will or may result in liens
on Landlord's interest therein, and Tenant will keep the Premises and Building
Complex free and clear of all mechanic's liens and other liens on account of
work done or claimed to have been done for Tenant or persons claiming under
it.
Tenant hereby agrees to indemnify, defend and save Landlord harmless of and
from
all liability, loss, damage, costs or expenses, including attorneys' fees,
and
interest incurred on account of any claims of any nature whatsoever, including
claims on lien of laborers, materialmen or others for work actually or allegedly
performed for, or materials or supplies actually or allegedly furnished to,
Tenant or persons claiming under Tenant. Should any liens be filed or recorded
against the Premises or any portion of the Building Complex or any action
affecting the title thereof be commenced, Tenant shall cause such liens to
be
removed of record within five (5) days after notice from Landlord. If Tenant
desires to contest any claim of lien, it shall furnish Landlord with security
adequate to the Landlord [which shall equal at least one hundred fifty percent
(150%) of the amount of the claim], plus estimated costs and interest; and
if a
final judgment establishing the validity or existence of any lien for any amount
is entered, and if Tenant shall be in default in paying any charge for which
a
mechanic's lien or suit to foreclose a lien has been recorded or filed, and
shall not have given Landlord security as aforesaid, then Landlord may (but
without being required to do so) pay such lien or claim and any costs, and
the
amount so paid, together with reasonable attorneys' fees incurred in connection
therewith, shall be immediately due from Tenant to Landlord. Landlord shall
have
the right at all times to post and keep posted on the Premises any notices
permitted or required by law which Landlord shall deem proper for the protection
of Landlord and the Premises, or any other party having an interest therein,
from mechanic's and materialmen's liens. Tenant shall give written notice to
Landlord at least thirty (30) days prior to the commencement of any work
relating to alterations or additions to the Premises, and if requested by
Landlord, provide partial lien waivers relating to the work to be performed
as
and when the work is performed.
-10-
|
11.
|
DAMAGE
to PROPERTY, INJURY to PERSONS, and TENANT'S
INSURANCE:
|
Tenant,
as a material part of the consideration to be rendered to Landlord under this
Lease, hereby waives all claims of liability Tenant or Tenant's successors
or
assigns may have against Landlord, and Tenant hereby indemnifies and agrees
to
hold Landlord harmless from and to defend Landlord against any and all claims
of
liability for any injury (including death) or damage to any person or property
whatsoever: (1) occurring in, on or about the Premises or any part thereof;
and/or (2) occurring in, on or about the Building Complex, to the extent such
injury or damage is caused in part or in whole by the act, neglect, fault or
omission to act on the part of Tenant, its agents, contractors, employees,
or
invitees. Tenant further indemnifies and agrees to hold Landlord harmless from
and against any and all claims arising from any breach or default in the
performance of any obligation on Tenant's part to be performed under the terms
of this Lease, or arising from any act or negligence of Tenant, or any of its
agents contractors, employees or invitees from and against all costs, attorney's
fees, expenses and liabilities incurred in or about any such claim or any action
or proceeding brought thereon. Landlord shall not be liable to Tenant for any
damage by or from any act or negligence of any co-tenant or other occupant
of
the building, or by any owner or occupant of adjoining or contiguous property.
Tenant agrees to pay for all damage to the Building Complex, as well as all
damage to tenants or occupants thereof, caused by Tenant's misuse or neglect
of
the Premises or any portion of the Building Complex. If Tenant shall obtain
risk
insurance on any of its property, such insurance shall permit Tenant to waive
any rights of subrogation and Tenant hereby waves such rights.
Neither
Landlord nor its agents shall be liable for any damage to property entrusted
to
Landlord, its agents or employees of the building manager, if any, nor for
the
loss or damage to any property by theft or otherwise, by any means whatsoever,
nor for any injury (including death) or damage to persons or property resulting
from fire, explosion, falling plaster, steam, gas, electricity, smoke, hail,
snow, lightning, earthquake, war, water or rain which may leak from any part
of
the Building or from the pipes, appliances or plumbing works therein or from
the
roof, street or subsurface or from any other place or resulting from dampness
or
any other cause whatsoever; provided, however, nothing contained herein shall
be
construed to relieve the Landlord from liability for any personal injury
resulting from its gross negligence or that of its agents, servants or
employees. Landlord or its agents shall not be liable for interference with
the
lights, view or other incorporated hereditaments. Tenant shall give prompt
notice to Landlord in case of fire or accidents in the Premises or in the
Building or of defects therein or in the fixtures or equipment.
-11-
In
case
any action or proceeding is brought against Landlord by reason of any obligation
on Tenant's part to be performed under the terms of this Lease, or arising
from
any act or negligence of Tenant, or of its agents or employees, Tenant, upon
notice from Landlord, shall defend the same at Tenant's expense by counsel
reasonably satisfactory to Landlord. Landlord shall bear all costs associated
with the defense of any claims to the extent such claims arise from the
negligence, fault or neglect of Landlord.
Tenant
agrees to carry and maintain, for the mutual benefit of Landlord and Tenant,
with Landlord named as an additional insured, during the term of this Lease
and
any extension hereof:
A. General
Public liability insurance against claims for personal injury, sickness or
disease, including death and property damage in or about the Premises, such
insurance to afford protection to the limit of not less than $1,000,000.00
in
respect to each person, and to the limit of not less than $1,000,000.00 in
respect to any one occurrence causing bodily injury or death, and to the limit
of not less than $300,000.00 in respect to property damage.
B. Casualty
insurance, including extended coverage, sprinkler leakage, and coverage for
fire
and smoke damage on all of Tenant's leasehold improvements and personal property
in or about the Premises or Building, in an amount of not less than ninety
percent (90%) of the replacement cost. Any proceeds shall be used for the repair
or replacement of leasehold improvements damaged or destroyed during the term
of
this Lease.
C. Workmen's
compensation insurance insuring Tenant from all claims for personal injury
and
death in such amounts as may, from time to time, be sufficient to pay the
maximum accumulated award allowed by Colorado law.
All
such
insurance shall be procured from a responsible insurance company or companies
authorized to do business in Colorado and otherwise satisfactory to Landlord.
All such policies shall provide that the same may not be canceled or altered
except upon thirty (30) days prior written notice to Landlord. Tenant shall
deliver to Landlord, ten (10) days prior to taking occupancy of the Premises,
copies of policies or certificates evidencing the existence and amount of such
insurance with loss payable clauses satisfactory to Landlord. If Tenant fails
to
obtain and maintain said insurance, Landlord shall have the right (but not
the
obligation) to effect such insurance at the expense of Tenant as additional
rent. Such payment shall be due with the next monthly rental
payment.
-12-
12. DAMAGE
OR DESTRUCTION TO BUILDING:
In
the
event the Premises or the Building is damaged by fire or other insured casualty,
and the insurance proceeds in an amount sufficient to repair the damages have
been made available therefor by the holder or holders of any mortgages or deeds
of trust covering the Building, the damage shall be repaired by and at the
expense of Landlord to the extent of such insurance proceeds available therefor,
provided such repairs and restoration can, in Landlord's sole opinion, be made
within one hundred twenty (120) days after the occurrence of such damage without
the payment of overtime or other premiums; and until such repairs and
restoration are completed, the rent shall be abated in proportion to the part
of
the Premises which is unusable by Tenant in the conduct of its business. [But
there shall be no abatement of rent by reason of any portion of the Premises
being unusable for a period equal to three (3) days or less.] If the damage
is
due to the fault or neglect of Tenant or its employees, agents or invitees,
there shall be no abatement of rent.
Landlord
agrees to notify Tenant within sixty (60) days after such casualty of its
estimates that it will be unable to repair and restore the Premises within
said
one hundred twenty (120) day period. Such notice will set forth the approximate
length of time Landlord estimates will be required to complete such repairs
and
restoration. Notwithstanding anything to the contrary contained herein, if
Landlord cannot make such repairs and restoration within said one hundred twenty
(120) day period, then either party may, by written notice to the other, cancel
this Lease as of the date of occurrence of such damage, provided such notice
is
given to the other party within fifteen (15) days after Landlord notifies Tenant
of the estimated time for completion of such repairs and restoration. However,
even if repairs and restoration cannot, in Landlord's sole opinion, be made
within said one hundred twenty (120) days, Landlord may, at its option, elect
to
make such repairs and restoration within a reasonable time, and in such event,
provided no notice has been given by Tenant evidencing its intent to terminate
this Lease, this Lease shall continue in effect and the rent shall be
apportioned in the manner provided above.
Except
as
provided in Section 12, there shall be no abatement of rent and no liability
of
Landlord by reason of any injury to or interference with Tenant's business
or
property arising from the making of any repairs, alterations or improvements
in
or to the fixtures, appurtenances and equipment therein. Tenant understands
the
Landlord will not carry insurance of any kind on Tenant's furniture and
furnishings or on any fixtures or equipment removable by Tenant under the
provisions of this Lease, and that Landlord shall not be obligated to repair
any
damage thereto or replace the same. Landlord shall not be required to repair
any
injury or damage by fire or other cause, or to make any repairs or replacements
of improvements installed in the Premises by or for Tenant in excess of building
standard items originally installed by Landlord, including but not limited
to
panels, decorative items, office fixtures, railings, floor coverings or other
property. Further notwithstanding anything to the contrary contained in this
Section 12, Landlord shall have no obligation to repair, reconstruct or restore
the Premises when the damage described in this Section occurs during the last
twelve (12) months of the term of this Lease or any extension
thereof.
In
case
sufficient insurance proceeds are unavailable or the Building throughout shall
be so injured or damaged, whether by fire or otherwise, to the extent of thirty
percent (30%) or more of replacement cost thereof [though said Premises may
not
be affected, or if affected, can be repaired within one hundred twenty (120)
days], the Landlord, within sixty (60) days after the happening of such injury,
shall decide not to reconstruct or rebuild the Building, then, notwithstanding
anything contained herein to the contrary, upon notice in writing to that effect
given by Landlord to Tenant within said sixty (60) days, Tenant shall pay the
rent, properly apportioned up to the date of the damage; this Lease shall
terminate from the date of delivery of said written notice; and both parties
hereto shall be freed and discharged from all further obligations hereunder.
A
total destruction of the building shall automatically terminate this
Lease.
-13-
13. CONDEMNATION:
If
any
portion of the Premises which materially affects Tenant's ability to continue
to
use the remainder thereof for the purposes set forth herein, or any portion
of
the Building which shall render the Premises untenantable shall be taken by
right of eminent domain or by condemnation or shall be conveyed in lieu of
any
such taking, then this Lease, at the option of either Landlord or Tenant
exercised by either party giving notice to the other of such termination within
thirty (30) days after such taking or conveyance, shall forthwith cease and
terminate, and the rent shall be duly apportioned as of the date of such taking
or conveyance. Tenant thereupon shall surrender to Landlord the Premises and
all
interest therein under this Lease, and Landlord may re-enter and take possession
of the Premises or remove Tenant therefrom. If any portion of the Premises
or
area appurtenant thereto is taken which does not materially affect Tenant's
right to use the remainder of the Premises for the purpose set forth herein,
this Lease shall continue in full force and effect, and Landlord shall promptly
perform any repair or restoration work required to restore the Premises, insofar
as possible, to its former condition, and the rental owing hereunder shall
be
adjusted, if necessary, in such just manner and proportion as the part so taken
(and its effect on Tenant's ability to the use the remainder of the Premises)
bears to the whole. In the event of taking or conveyance as described herein,
Landlord shall receive the entire award or consideration for the lands,
improvements and value of the leasehold so taken.
14. ASSIGNMENT
AND SUBLETTING:
Tenant
shall not permit any part of the Premises to be used or occupied by any persons
other than Tenant, and the employees of Tenant, nor permit any part of the
Premises to be used or occupied by any licensee or concessionaire, or permit
any
persons to be upon the Premises other than Tenant, and their respective
employees, customers and others having lawful business with them.
Tenant
shall not assign nor sublet nor part with the possession of all or part of
the
Premises without the prior written consent of Landlord; provided, however,
such
consent to any assignment or subletting shall not relieve Tenant from its
obligations as primary obligor (and not as surety or guarantor) for the payment
of all rental due hereunder and for the full and faithful observance and
performance of the covenants, terms and conditions herein contained. The sale
of
all or a majority of the stock of Tenant, if Tenant is a corporation, shall
constitute an assignment of the Lease for purposes of this paragraph. Consent
of
the Landlord to an assignment or subletting shall not in any may be construed
to
relieve the Tenant from obtaining the consent of the Landlord to any further
assignment or subletting. Nothwithstanding the foregoing, in the event of a
sale
of all or substantially all of the assets of Tenant and an assumption of the
obligations of this Lease by such purchaser, Landlord’s consent shall be deemed
given and the original tenant hereunder shall be released of its obligations
hereunder. Landlord’s consent shall not be required if such assignee is an
entity related to Tenant.
-14-
In
the
event Tenant should desire to assign this Lease or sublet the Premises or any
part thereof, Tenant shall give Landlord written notice of such desire at least
sixty (60) days in advance of the date on which Tenant desires to make such
assignment or sublease. At this time, Tenant shall submit to Landlord the name
of the proposed assignee or subtenant and such information as to the nature
of
its business and its financial responsibility and standing as Landlord may
reasonably require, and the effective date of the proposed assignment. Landlord
shall, within thirty (30) days of receipt of such request and information from
Tenant, notify Tenant in writing that Landlord elects either:
A.
To
terminate the Lease as to the space so affected as of the date so specified
by
Tenant in which event Tenant will be relieved of all further obligation
hereunder as to such space (however if Landlord notifies Tenant that it will
terminate this lease, Tenant may withdraw its written notice and Landlord shall
not have the right to terminate this lease); or
B.
To
permit Tenant to assign or sublet such space, subject, however, to subsequent
written approval of the proposed assignee or subtenant by Landlord; provided,
however, that if the rental rate agreed upon between Tenant and its subtenant
is
greater than the rental rate that Tenant must pay Landlord, then such excess
rental shall be deemed additional rent owed by Tenant to Landlord and shall
be
paid by Tenant to Landlord in the same manner that Tenant pays Rent as described
in Sections 3 and 4 of this Lease; or
C.
To
refuse to consent to Tenant's assignment or subleasing such space and to
continue this Lease in full force and effect as to the entire Leased Premises,
such consent not to be unreasonably withheld.
If
Landlord shall fail to notify Tenant in writing of such election within said
thirty (30) day period, Landlord shall be deemed to have elected option C above.
Any attempted assignment or sublease by Tenant in violation of the terms and
covenants of this Section 14 shall be considered a material breach of the Lease
Agreement.
15. ESTOPPEL
CERTIFICATE.
Tenant
agrees, prior to its occupancy of the Premises and thereafter, at any time
and
from time to time, upon not less than ten (10) days written request by Landlord,
to execute, acknowledge and deliver to Landlord an estoppel certificate
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, and stating the modifications), that there have been no defaults
thereunder by Landlord or Tenant (or if there have been defaults, setting forth
the nature thereof), the date to which the rent and other charges have been
paid
in advance, if any, and such other matters as reasonably requested by Landlord,
it being intended that any such statement delivered pursuant to the paragraph
may be relied upon by any prospective purchaser of all or any portion of
Landlord's interest herein, or a holder of any mortgage or deed of trust
encumbering the Building Complex. Tenant's failure to deliver such statement
within such time shall constitute an event of default (as that term is defined
elsewhere in this Lease).
-15-
16. DEFAULT.
The
happening of any one or more of the following events shall constitute an "event
of default":
A.
The
failure by Tenant to pay any installment of Base Rent or other charge when
due,
including the Expense and Tax Adjustments set forth in Section 4 of this Lease,
when such failure is not cured within 10 days after receipt by Tenant of written
notice from landlord of such failure. Time is of the essence of this
Lease;
B.
This
Lease or the estate of Tenant hereunder shall be transferred to or shall pass
to
any other person or party except in the manner herein provided;
C.
This
Lease or the Premises or any part thereof shall be taken upon execution or
by
other process of law directed against Tenant, or shall be taken upon or subject
to any attachment at the instance of any creditor or claimant against Tenant,
and said attachment shall not be discharged or disposed of within fifteen (15)
days after the levy thereof;
D.
Tenant
shall file a petition in bankruptcy or insolvency or for reorganization or
arrangement under the bankruptcy laws of the United States or under any
insolvency act of any state, or shall voluntarily take advantage of any such
law
or act by answer or otherwise, or shall be dissolved or shall make an assignment
for the benefit of creditors;
E.
Involuntary proceedings under any such bankruptcy law or insolvency act for
the
dissolution of Tenant shall be instituted against Tenant, or a receiver or
trustee shall be appointed of all or substantially all of the property of
Tenant, and such proceeding shall not be dismissed or such receivership or
trusteeship vacated within sixty (60) days after such institution or
appointment;
F.
Tenant
shall fail to take possession of the Premises within ninety (90) days of the
term commencement date;
G.
Tenant
shall fail to perform any of the other agreements, terms, covenants or
conditions hereof on Tenant's part to be performed, and such non-performance
shall continue for a period of ten (10) days after notice thereof by Landlord
to
Tenant, or if such performance cannot be reasonably had within such ten (10)
day
period, Tenant shall not in good faith have commenced such performance within
such ten (10) day period and shall not diligently proceed therewith to
completion; and
H.
Any
event described elsewhere in this Lease as an event of default which remains
uncured after written notice from Landlord to Tenant. Upon the happening of
any
event of default as hereinabove described, the Landlord shall have the right,
at
its election, then or at any time thereafter and while any such event of default
shall continue, either:
-16-
(1)
To
give Tenant written notice of intention to terminate this Lease on the date
of
such given notice or on any later date specified therein, and on the date
specified in such notice, whereupon Tenant's right to possession of the Premises
shall cease, and this Lease shall thereupon be terminated, except as to Tenant's
liability, as if the expiration of the term fixed in such notice where the
end
of the term herein originally demised; or
(2)
To
re-enter and take possession of the Premises or any part thereof, and repossess
the same as of Landlord's former estate and expel Tenant and those claiming
through or under Tenant, and remove the effects of both or either, using such
force for such purposes as may be necessary, without being liable for
prosecution thereof, without being deemed guilty of any manner of trespass,
and
without prejudice to any remedies for arrears of rent or preceding breach of
covenants or conditions. Should Landlord elect to re-enter as provided in the
Subparagraph (2) or should Landlord take possession pursuant to legal
proceedings or pursuant to any notice provided for by law, Landlord may, from
time to time, without terminating this Lease, relet the Premises or any part
thereof in Landlord's or Tenant's name, but for the account of Tenant, for
such
term or terms (which may be greater or less than the period which would
otherwise have constituted the balance of the term of this Lease) 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 reasonable
discretion, may determine, and Landlord may collect and receive the rents
therefor. Landlord shall in no way be responsible or liable for any failure
to
relet the Premises, or any part thereof, or for any failure to collect any
rent
due upon such reletting. No such re-entry or taking possession of the Premises
by Landlord shall be construed as an election on Landlord's part to terminate
this Lease unless a written notice of such intention be given to Tenant. No
notice from Landlord hereunder or under a forcible entry and detainer statute
or
similar law shall constitute an election by Landlord to terminate this Lease
unless such notice specifically so states. Landlord reserves the right following
any such re-entry and/or reletting to exercise its right to terminate this
Lease
by giving Tenant such written notice, in which event the Lease will terminate
as
specified in said notice.
In
the
event that Landlord does not elect to terminate this Lease as permitted in
Subparagraph (1) of this Section, but on the contrary, elects to take possession
as provided in Subparagraph (2) hereof, Tenant shall pay to Landlord (i) the
rent and other sums as herein provided, which would be payable hereunder if
such
repossession had not occurred, less (ii) the net proceeds, if any, of any
reletting of the Premises after deducting all Landlord's reasonable expenses
in
connection with such reletting, including, but without limitation, all
repossession costs, brokerage commissions, legal expenses, attorneys' fees,
expenses of employees, alteration and repair costs and expenses of preparation
for such reletting. If, in connection with any reletting, the new lease term
extends beyond the existing term, or the premises covered thereby include other
premises not part of the Premises, a fair apportionment of the rent received
from such reletting shall be made by Landlord binding on Tenant, and the
expenses incurred in connection therewith as provided aforesaid will be made
in
determining the net proceeds from such reletting, any rent concessions will
be
apportioned over the term of the new lease. Tenant shall pay such rent and
other
sums to Landlord monthly on the days on which the rent would have been payable
hereunder if possession had not be retaken and Landlord shall be entitled to
receive the same from Tenant on each such day.
-17-
Nothing
herein shall preclude Landlord at its election from recovering, at a minimum,
the fair rental value of the Premises as damages for the failure of Tenant
to
pay the agreed upon rentals.
In
the
event, however, the Lease is terminated (except as provided in Section 12 and
13
on damage and destruction or condemnation), Tenant shall remain liable to
Landlord for damages in an amount equal to the rent and other sums which would
have been owing by Tenant hereunder for the balance of the term had this Lease
not been terminated, less the net proceeds, if any, of any reletting of the
Premises by Landlord subsequent to such termination, after deducting all
Landlord's expenses in connection with such reletting, including, but without
limitation, the expenses enumerated above. Landlord shall be entitled to collect
such damages from Tenant monthly on the days on which the rent and other amounts
would have been payable hereunder if this Lease had not been terminated, and
Landlord shall be entitled to receive the same from Tenant on each such day.
Alternatively, at the option of Landlord, in the event this Lease is terminated,
Landlord shall be entitled to recover forthwith against Tenant as damages for
loss of the bargain and not as a penalty, an aggregate sum which, at the time
of
such termination of this Lease, represents the excess, if any, of the aggregate
of the rent and all other sums payable by Tenant hereunder that would have
accrued for the balance of the term over the aggregate rental value of the
Premises (such rental value to be computed on the basis of a tenant paying
not
only a rent to Landlord for the use and occupation of the Premises, but also
such other charges as are required to be paid by Tenant under the terms of
this
Lease) for the balance of such term.
Suit
or
suits for the recovery of the amounts and damages set forth hereinafter may
be
brought by Landlord, from time to time, at Landlord's election; and nothing
herein shall be deemed to require Landlord to await the date whereon this Lease
or the term hereof would have expired by limitation had there been no such
default by Tenant, or no such termination, as the case may be. Each right and
remedy provided for in this Lease shall be cumulative and shall be in addition
to every other right or remedy provided for in this Lease or now or hereafter
existing at law or in equity or by statute or otherwise, including but not
limited to, suits for injunctive relief and specific performance. The exercise
or beginning of the exercise by Landlord of any one or more of the rights or
remedies provided for in this Lease or now or hereafter existing at law or
in
equity or by statue or otherwise shall not preclude the simultaneous or later
exercise by Landlord of any or all other rights or remedies provided for in
this
Lease or now or hereafter existing at law or in equity or by statute or
otherwise. All costs incurred by Landlord in connection with collecting any
amounts and damages owing by Tenant pursuant to the provisions of this Lease
or
to enforce any provision of this Lease, including reasonable attorneys' fees
from the date any such matter is turned over to an attorney, shall also be
recoverable by Landlord from Tenant.
No
failure by Landlord to insist upon the strict performance of any agreement,
term, covenant or condition hereof or to exercise any right or remedy consequent
upon a breach thereof, and acceptance of full or partial rent during the
continuance of any such breach, shall constitute a waiver of any such breach
or
any such agreement, term, covenant or condition. No agreement, term, covenant
or
condition hereof to be performed or complied with by Tenant and no breach
thereof, shall be waived, altered or modified except by a written instrument
executed by Landlord. No waiver of any breach shall affect or alter this Lease,
but each and every agreement, term, covenant and condition hereof shall continue
in full force and effect with respect to any other then existing or subsequent
breach thereof. Notwithstanding any termination of this Lease, the same shall
continue in force and effect as to any provisions hereof which require
observance or performance of Landlord or Tenant subsequent to
termination.
-18-
Nothing
contained in this Section shall limit or prejudice the right of Landlord to
prove and obtain as liquidated damages in any bankruptcy, insolvency,
receivership, reorganization or dissolution proceeding, an amount equal to
the
maximum allowed by any statute or rule or law governing such proceeding and
in
effect at the time when such damages are to be proved, whether or not such
amount be greater, equal to or less than the amounts recoverable, either as
damages or rent, referred to in any of the preceding provisions of Section
16.
Notwithstanding
anything contained hereinabove in Section 16 to the contrary, any such
proceeding or action involving bankruptcy, insolvency, reorganization,
arrangement, assignment for the benefit of creditors, or appointment of a
receiver or trustee, as outlined in Paragraphs D and E above, shall be
considered to be an event of default only when such proceeding, action or remedy
shall be taken or brought by or against the then holder of the leasehold estate
under this Lease.
17. REFURBISHING
OF PREMISES:
Landlord
has agreed to refurbish the Premises only to the extent as more fully set forth
in the Refurbishing Addendum between Landlord and Tenant attached hereto as
Exhibit D and incorporated by reference herein. Other than as set forth in
such
Refurbishing Addendum, Landlord shall have no obligations for the completion
of
the Premises, and Tenant shall accept the Premises in their "as is" condition
immediately prior to the date of occupancy of the Premises by the Tenant except
for those items set forth in the estoppel letter received by Landlord from
Tenant at that time. In any event, Landlord shall not have any obligation to
repair or replace any portions of the interior of the Premises which are damaged
or wear out during the term hereof, regardless of the cause therefor, including,
but not limited to, carpeting, draperies, window coverings, wall covering,
painting or any of Tenant's property or betterments in the Premises. If the
Premises are not ready for occupancy on the date upon which the term hereby
demised is to begin, the rent under this Lease shall not commence until the
Premises are ready for occupancy, whereupon this Lease, and all of the
covenants, conditions and agreements herein contained shall be in full force
and
effect; and the expiration of the term hereof shall be postponed for an
equivalent period of time; and the postponement of rent herein provided to
be
paid by Tenant for such period prior to the delivery of the Premises to Tenant
ready for occupancy shall be in full settlement for all claims which Tenant
might otherwise have by reason of said Premises not being ready for occupancy
on
the date of the beginning of the term as set forth herein. Notwithstanding
the
foregoing, in the event that the Premises are not ready for occupancy on or
before April 1, 2006, Tenant may terminate this lease upon written notice to
Landlord. Tenant may occupy the Premises prior to the commencement of the Lease
term provided (a) it has obtained Landlord's prior written consent thereto,
(b)
it will not hinder in any way the Tenant improvement work, if any, to be
performed by Landlord and will cooperate with all reasonable requests of workmen
and Landlord in conjunction therewith and (c) rent for such period shall be
at
the monthly rate (prorated accordingly) set forth in Section 3 hereof. Upon
Tenant's occupancy of the Premises all of the provisions of this Lease shall
be
in full force and effect. "Ready for occupancy," as that term is used herein,
shall mean the date that Landlord shall have substantially completed the
Premises or any remodeling work to be performed by Landlord to the extent agreed
to in the Construction Procedures Agreement. The certificate of the architect
(or other representative of Landlord) in charge of supervising the completion
of
remodeling of the Premises shall control conclusively the date upon which the
Premises are ready for occupancy and the obligation to pay rent begins as
aforesaid.
-19-
If,
as a
result of the postponement of the commencement of the term, the term would
begin
other than on the date set forth in Section 2 hereof, the Commencement Date
shall be postponed and Tenant shall pay proportionate rent at the same monthly
rate set forth herein (also in advance) for such partial month and all other
terms and conditions of this Lease shall be in force and effect during such
partial month. As soon as the term commences, Landlord and Tenant shall execute
an addendum to this Lease, which may be requested by either party, setting
forth
the exact dates of commencement and expiration of the term hereof.
18. ACCEPTANCE
OF PREMISES BY TENANT:
Taking
possession of the Premises by Tenant shall be conclusive evidence as against
Tenant that said Premises were in the condition agreed upon between Landlord
and
Tenant, and acknowledgement of satisfactory completion of the fix-up work which
Landlord has agreed in writing to perform.
19. REMOVAL
OF TENANT'S PROPERTY:
All
movable furniture and personal effects of Tenant not removed from the Premises
upon the vacation or abandonment thereof or upon the termination of this Lease
for any cause whatsoever shall conclusively be deemed to have been abandoned
and
may be appropriated, sold, stored, destroyed or otherwise disposed of by
Landlord without notice to Tenant or any other person and without obligation
to
account therefore; and Tenant shall pay Landlord for all expenses incurred
in
connection with the disposition of such property.
20. HOLDING
OVER:
Should
Tenant, without Landlord's written consent, hold over after the termination
of
this Lease, Tenant shall become a tenant from month to month only upon each
and
all of the terms herein provided as may be applicable to such month-to-month
tenancy and any such holding over shall not constitute an extension of this
Lease. During such holding over, Tenant shall pay rental equal to two hundred
percent (200%) of the last monthly rental rate (or such lesser amount which
Landlord may determine) and all the other monetary charges as provided herein.
Such tenancy shall continue until terminated by Landlord or until Tenant shall
have given to Landlord a written notice at least thirty (30) days prior to
the
date of termination of such monthly tenancy of its intention to terminate such
tenancy.
-20-
21. CONTROL
OF COMMON AREAS.
All
automobile parking areas, driveways, entrances and exits thereto and other
facilities furnished by Landlord, including all parking areas, plaza areas,
truckway or driveways, loading areas, pedestrian walkways and ramps, landscaped
areas, stairways and other areas and improvements provided by Landlord both
inside and outside the Building (all of the foregoing are hereinafter
collectively referred to as "Common Areas") for the general use in common of
tenants, their officers, employees, agents, invitees, licensees, visitors and
customers (all of the foregoing are hereinafter collectively referred to as
"Permitted Users"), shall be at all times subject to the exclusive control
and
management of Landlord, and Landlord shall have the right at any time and from
time to time to establish, modify and enforce reasonable rules and regulations
with respect to all such Common Areas. Landlord shall have the right to
construct, maintain and operate facilities within the Common Areas; to employ
personnel to operate and police same; from time to time to change the area,
level, location and arrangement of parking areas and other Common Areas; to
restrict parking by and enforce parking charges (by operation of meters or
otherwise) against Permitted Users; to close all or any portion of the Common
Areas to such extent as may, in the opinion of Landlord's counsel, be legally
sufficient to prevent a dedication thereof or the accrual of any right to any
person or the public therein; to discourage non-customer parking; to charge
a
fee for visitor or customer parking, but Landlord shall not be obligated to
provide such parking; and to do and perform such other acts in and to the common
Areas as, in the use of good business judgment, Landlord shall determine to
be
advisable with a view to the improvement of the convenience and use thereof
by
the Permitted Users. Reference in this Section to parking areas shall in no
way
be construed as giving Tenant any rights and/or privileges in connection with
such parking areas. All expenses incurred by Landlord in the maintenance and
operation of the Common Areas shall be includable in the definition of
"Operating Expenses" set forth in Section 4B hereof.
22. SURRENDER
AND NOTICE:
Upon
the
expiration or other termination of the term of this Lease, Tenant shall promptly
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 (unless
caused, whether by action or inaction by Tenant, its agents, servants, employees
or invitees) excepted, and Tenant shall remove all of its movable furniture
and
other effects and such alterations, additions and improvements as Landlord
shall
require Tenant to remove pursuant to Section 9 hereof. In the event Tenant
fails
to vacate the Premises on a timely basis as required, Tenant shall be
responsible to Landlord for all costs incurred by Landlord as a result of such
failure, including, but not limited to, any amounts required to be paid to
third
parties who were to have occupied the Premises.
23. SUBORDINATION
AND ATTORNMENT:
This
Lease, at Landlord's option, shall be subordinate to any mortgage, deed of
trust
(now or hereafter placed upon the Building Complex), ground lease or declaration
of covenants (hereafter placed upon the Building Complex) regarding maintenance
and use of any areas contained in any portion of the Building Complex, and
to
any and all advances made under any mortgage or deed of trust and to all
renewals, modifications, consolidations, replacements and extensions hereof.
Tenant agrees, with respect to any of the foregoing documents, that no
documentation other than this Lease shall be required to evidence such
subordination except that in the event that Tenant is required to execute a
subordination agreement in favor of any lender of the building, Tenant shall
not
be required to execute any such subordination unless such lender shall provide
Tenant with a non-disturbance agreement providing that in the vent of any
foreclosure, so long as Tenant is not in default, Tenant’s right to possession
of the Premises shall not be disturbed by any foreclosure. Tenant agrees to
execute such documents as may be required to effectuate such subordination
of
the lien of any mortgage or deed of trust, as the case may be, and by failing
to
do so within ten (10) days after written demand, Tenant does hereby make,
constitute and irrevocably appoint Landlord as Tenant's attorney-in-fact and
in
Tenant's name, place and stead, to do so. This power of attorney is coupled
with
an interest. Tenant hereby attorns to all successor owners of the Building,
whether or not such ownership is acquired as a result of a sale, through
foreclosure of a deed of trust or mortgage or otherwise.
-21-
24. PAYMENTS
AFTER TERMINATION:
No
payments of money by Tenant to Landlord after the termination of this Lease,
in
any manner, or after giving of any notice of default (other than a demand for
payment of money) by Landlord to Tenant shall reinstate, continue or extend
the
term of this Lease or affect any notice given to Tenant prior to the payment
of
such money, it being agreed that after the service of notice of the commencement
of a suit or other final judgment granting Landlord possession of the Premises,
Landlord may receive and collect any sums of rent due, or any other sums of
money due under the terms of this Lease, or otherwise exercise its rights and
remedies hereunder. The payment of such sums of money, whether as rent or
otherwise, shall not waive said notice, or in any manner affect any pending
suit
or judgment theretofore obtained.
25. AUTHORITIES
FOR ACTION AND NOTICE:
A.
Except
as herein otherwise provided, Landlord may act in any matter provided for herein
by and through its building manager or any other person who shall from time
to
time be designated by Landlord in writing.
B.
All
notices or demand required or permitted to be given to Landlord hereunder shall
be in writing, and shall be deemed duly served when deposited in the United
States mail, with proper postage prepaid, certified or registered, return
receipt requested, addressed to Landlord at its principal office in the
Building, or at the most recent address of which Landlord has notified Tenant
in
writing. All notices or demands required to be given to Tenant hereunder shall
be in writing, and shall be deemed duly serviced when deposited in the United
States mail, with proper postage prepaid, certified or registered, return
receipt requested, addressed to:
Patria Corporation, Inc., 0000 Xxxxxxxxx Xxxxx, Xxxxx #X-000, Xxxxxx, XX
00000.
If
Tenant fails to so designate an address, such notice may be mailed to Tenant's
premises in the Building. Either party shall have the right to designate in
writing served as above, provided a different address to which notice is to
be
mailed. The foregoing shall in no event prohibit notice from being given as
provided in Rule 4 of the Colorado Rules of Civil Procedure, as the same may
be
amended from time to time.
-22-
26. SECURITY
DEPOSIT:
It
is
agreed that Tenant, concurrently with the execution of this Lease, has deposited
with Landlord and will keep on deposit at all times during the term hereof,
the
sum of Twenty
Five Thousand and no/100
Dollars
($25,000.00),
the
receipt of which is hereby acknowledged, as security for the payments by Tenant
of the rent herein agreed to be paid and for the faithful performance of all
the
terms, conditions and covenants of this Lease. If, at any time during the term
hereof, Tenant shall be in default in the performance of any provisions of
this
Lease, Landlord shall have the right to use said deposit, or so much thereof
as
is necessary, in payment of any rent in default as aforesaid, reimbursement
of
any expense incurred by Landlord in refurbishing the premises and leasing costs,
and in payment of any damages incurred Landlord by reason of Tenant's default.
In such event, Tenant shall, on written demand of Landlord, forthwith remit
to
Landlord a sufficient amount in cash to restore and deposit to its original
amount. In the event said deposit has not been utilized as aforesaid, said
deposit, or as much thereof as has not been utilized for such purposes, shall
be
refunded to Tenant, without interest, upon full performance of this Lease by
Tenant as follows:
a.
$10,000
ninety days after tenant takes occupancy, provided the OCC has approved
the bank
charter by that date, or upon such approval if delayed beyond the initial
90
days of occupancy.
b. an
additional $10,000 at the end of the first year of the lease
term
c. $3,500
at
the end of the second year of the lease term
d. the
balance of $1,500 shall be held by Landlord throughout the duration of the
lease
term and refunded in accordance with the provisions of the lease.
Landlord
shall have the right to commingle said deposit with other funds of Landlord.
Landlord may deliver the funds deposited herein by Tenant to any purchaser
of
Landlord's interest in the Premises in the event such interest be sold, and
thereupon Landlord shall be discharged from further liability with respect
to
such deposit. If claims of Landlord exceed said deposit, Tenant shall remain
liable for the balance of such claims.
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27.
|
ENVIRONMENTAL
INDEMNITY
|
Tenant,
its successors, assigns and guarantors shall indemnify, defend, reimburse and
hold harmless Landlord from and against any and all "Environmental Damages"
arising from the presence or use of "Hazardous Materials" caused, permitted
or
suffered directly by Tenant's use or occupancy of the Leased Premises or arising
in any manner whatsoever out of the violation by Tenant of any "Environmental
Requirements" pertaining to the Leased Premises and the activities thereon,
or
the breach of any warranty or covenant or the inaccuracy of any representation
of Tenant contained in this Lease.
-23-
A. "Hazardous
Materials" means any substance:
a. The
presence of which requires investigation or remediation under any federal,
state
or local statute, regulation, ordinance, order, action, policy or common law;
or
b. Which
is
or becomes defined as "hazardous waste", hazardous substance", pollutant or
contaminant under any federal, state or local statute, regulation, rule or
ordinance or amendments thereto including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act ("CERCLA") (42 U.S.C.
§§
9601 et
seq.)
and/or
the Resource Conservation and Recovery Act (42 U.S.C. §§ 6901 et
seq.);
or
c. Which
is
toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic,
mutagenic or otherwise hazardous and is or becomes regulated by any governmental
authority or instrumentality of the United States, the State of Colorado or
the
county of the Shopping Center, or
d. The
presence of which in, on or about the Leased Premises causes or threatens to
cause a nuisance upon the Leased Premises or to adjacent properties or poses
or
threatens to pose a hazard to health or safety of persons on or about the Leased
Premises; or
e. The
presence of which on adjacent properties could constitute a trespass by Tenant;
or
f. Without
limitation which contains gasoline, diesel fuel or other petroleum
hydrocarbons.
B. "Environmental
Requirements" means all applicable present and future statutes, regulations,
rules, ordinances, codes, licenses, permits, orders, approvals and similar
items
of all governmental authorities or instrumentalities of the United States,
Colorado, the county of the Shopping Center location and all applicable
judicial, administrative and regulatory decrees, judgments or orders relating
to
the protection of human health or the environment.
C. "Environmental
Damages" means all claims, judgments, damages, losses, penalties, fines
liabilities, encumbrances, liens, costs and expenses of whatever kind or nature,
contingent or otherwise, matured or unmatured, foreseeable or unforeseeable,
including without limitation reasonable attorney's and consultants' fees, any
of
which are incurred at any time as a result of Tenant's use or occupancy of
the
Leased Premises or violation of any Environmental Requirement in, on or about
the Leased Premises or any portion thereof.
-24-
D. The
obligations of Tenant, its successors, assigns and guarantors in this paragraph
shall survive the expiration or termination of this Lease.
E. If
Tenant
shall become aware of or receive notice or other communication concerning any
actual, alleged, suspected or threatened violation of Environmental Requirements
or liability for Environmental Damages in connection with the Leased Premises
or
past or present activities of any person thereon, then, within ten (10) days
of
becoming aware of or the receipt of notice or other communication, Tenant shall
deliver to Landlord a written description of same, together with copies of
any
supporting documents.
F. Nothing
contained herein shall obligate Tenant to remediate or indemnify Landlord,
directly or indirectly through operating expenses for any environmental
condition existing in, on or under the property at the commencement of this
lease or caused by anyone unrelated to Tenant.
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28.
|
ADA
COMPLIANCE
|
Notwithstanding
anything to the contrary, Tenant shall be responsible for any alterations,
modifications or improvements to the premises which may be required under the
Americans with Disabilities Act (ADA) to the extent such are required as a
result of any alterations or improvements or additions made to the premises
by
or on behalf of Tenant, or as a result of Tenant employing any individual with
a
disability as defined by the ADA
29. MISCELLANEOUS:
A.
The
Rules and Regulations attached hereto and marked Exhibit "C", as well as such
Rules and Regulations may be amended, deleted, modified, altered or enlarged
by
Landlord for the safety, care and cleanliness of the Premises and the
preservation of good order thereon, are hereby expressly made a part hereof;
and
Tenant agrees to obey all such rules and regulations. The violation of any
of
such rules and regulations by Tenant shall be deemed an event of default of
this
Lease by Tenant, affording Landlord all those remedies set out herein. Landlord
shall not be responsible to Tenant for the nonperformance of any other tenant
or
occupant of the building of any of said rules and regulations.
B.
The
term "Landlord", as used in this Lease, so far as covenants or obligations
on
the part of Landlord are concerned, shall be limited to mean and include only
the Owner or Owners of the Building at the time in question; and in the event
of
any transfer or transfers of the title thereto, Landlord herein named (and
in
the case of any subsequent transfers or conveyances, the then grantor) shall
be
automatically released from and after the date of such transfer or conveyance,
of all liability as respects the performance of any covenants or obligations
on
the part of Landlord contained in this Lease thereafter to be performed,
provided that any funds in the hands of Landlord or the then grantor at the
time
of such transfer in which Tenant has an interest shall be turned over to the
grantee; and any amount then due and payable to Tenant by Landlord or the then
grantor under any provisions of this Lease shall be paid to Tenant.
-25-
C.
Tenant
agrees that for the purposes of completing or making repairs or alterations
in
any portion of the Building, Landlord may use one or more of the street
entrances, the halls passageways and elevators of the Building, subject to
Tenant's reasonable right to access the premises at all times.
D.
This
Lease shall be construed as though the covenants herein between Landlord and
Tenant are independent, and not dependent; and Tenant shall not be entitled
to
any setoff of the rent or other amounts owing hereunder against Landlord if
Landlord fails to perform its obligations set forth herein; provided, however,
the foregoing shall in no way impair the right of Tenant to commence a separate
action against Landlord for any violation by Landlord of the provisions hereof
so long as notice is first given to Landlord and an opportunity granted to
Landlord to correct such violation.
E.
If any
clause or provisions of this Lease is illegal, invalid, or unenforceable under
present or future laws effective during the term of this Lease, then and in
that
event, it is the intention of the parties hereto that the remainder of this
Lease shall not be affected thereby; and it is also the intention of the parties
to the Lease that in lieu of each clause or provision of this Lease that is
illegal, invalid or unenforceable, there shall be added as a part of this Lease
a legal, valid and enforceable clause or provision as similar in terms of such
illegal, invalid or unenforceable clause or provision as may be
possible.
F.
The
captions of each Section are added as a matter of convenience only and shall
be
considered of no effect in the construction of any provision or provisions
of
this Lease.
G.
Except
as herein specifically set forth, all terms, conditions and covenants to be
observed and performed by the parties hereto shall be applicable to and binding
upon their respective heirs, administrators, executors, successors and assigns.
The terms, conditions and covenants hereof shall also be considered to be
covenants running with the land and shall inure to the benefit of and be binding
upon the parties hereto and their respective successors and permitted
assigns.
H.
Tenant
specifically agrees to look solely to Landlord's interest in the Building for
recovery of any judgment from the Landlord, it being agreed that Landlord shall
never be personally liable for any such judgment, including any personal assets
of the partnership comprising of Landlord or any assets of the individual
partners of the partnership forming "Landlord." The provision contained in
the
foregoing sentence is not intended to, and shall not, limit any right that
Tenant might otherwise have to obtain injunctive relief against Landlord or
Landlord's successors in interest or any suit or action in connection with
enforcement or collection of amounts which may become owing or payable under
or
on account of insurance maintained by Landlord.
-26-
I.
No act
or thing done by Landlord or Landlord's agent during the term hereof, including,
but not limited to, any agreement to accept surrender of the Premises or to
amend or modify this Lease, shall be deemed to be binding upon Landlord unless
such act or things shall be by a party designated in writing by Landlord as
so
authorized to act. The delivery of keys to Landlord, or Landlord's agent,
employees or officers shall not operate as a termination of this Lease or a
surrender of the Premises. No payment by Tenant, or receipt by Landlord, of
a
lesser amount than the monthly rent herein stipulated, shall be deemed to be
other than on account of the earliest stipulated rent, nor shall any endorsement
or statement on any check or any letter accompanying any check, or payment
as
rent, be deemed an accord and satisfaction; and Landlord may accept such check
or payment without prejudice to Landlord's right to recover the balance of
such
rent or pursue any other remedy available to Landlord.
J.
Landlord shall have the right to change the number, designation or name of
the
Building on ninety (90) days notice to Tenant (and without liability to Tenant)
to construct other buildings or improvements in any plaza or other area
designated by Landlord for use by tenants, or to change the location, character,
or make alterations of, or additions to, any of said plazas or other
areas.
K.
Tenant
acknowledges and agrees that it has not relied upon any statement,
representations, agreements or warranties except such as are expressed in this
Lease, and that no amendment or modification of the Lease shall be valid or
binding unless expressed in writing and executed by Landlord and Tenant in
the
same manner as the execution of this Lease.
L.
Time
is of the essence hereof.
M.
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's board
of
directors, or partners as the case may be, and agree upon request to deliver
to
Landlord a resolution or similar document to that effect.
N.
Any
obligations of the Landlord or Tenant hereunder which is delayed or not
performed due to acts of God, strike, riot, war, weather, failure to obtain
labor and materials at a reasonable cost or any other reason beyond the control
of the Landlord or Tenant shall not constitute a default hereunder and shall
be
performed within a reasonable time after the end of such cause for delay or
non-performance.
O.
Tenant
shall not record this Lease or a memorandum hereof without the prior written
consent of Landlord. In the event that Tenant violates this provision, this
Lease, at the option of Landlord, shall be null, void, and of no further force
and effect if Tenant fails to execute documents requested by Landlord to negate
the effect of such recordation, except that Tenant shall be liable to Landlord
for liquidated damages, in the amount of the remaining rental to be paid
hereunder.
P.
This
Lease may be executed in counterparts. Each counterpart shall be deemed to
be an
original hereof. There shall be executed at least three (3) additional
counterparts.
-27-
Q.
The
Tenant does hereby specifically allow and permit the Landlord to execute an
Assignment Agreement including a General Assignment of Rents and to specifically
assign this particular Lease.
R.
This
Lease shall be deemed to have been made in and shall be construed in accordance
with the laws of the State of Colorado.
S.
Unless
the context otherwise requires, the word "Landlord" wherever it is used herein
shall be construed to include and shall mean Landlord, it successors and/or
assigns, and the word "Tenant" shall be construed to include and shall mean
Tenant, and when there are two or more tenants, or two or ore persons bound
by
Tenant's covenants herein contained, their obligations hereunder shall be joint
and several.
T.
Exhibits, plats and riders, if any, signed by Landlord and Tenant and endorsed
on or affixed to this Lease are a part hereof.
U.
The
marginal headings and titles to the Sections of this Lease are not a part of
this Lease and shall have no effect upon the construction or interpretation
of
any part hereof.
V.
Tenant
warrants and agrees to save and hold Landlord harmless from any and all leasing
commissions (including renewals, extensions or options), costs and liability
with respect to the Premises claimed by any real estate broker except those
brokers retained by Landlord and those brokers identified in writing by Tenant
to Landlord.
W.
This
Lease contains all of the agreements of the parties hereto with respect to
any
matter covered in this Lease, and no prior agreements or understandings shall
be
effective for any purpose. No provisions of this Lease may be amended or added
to except by an agreement in writing signed by the parties hereto or their
respective successors in interest. This Lease shall not be effective or binding
on any party until fully executed by both parties and delivered by each party
to
the other.
X.
No
representation or recommendation has been made by Landlord or the real estate
broker or its agents or employees either as to the legal sufficiency, legal
effect, or tax consequences of this Lease or the transactions relative
thereto.
Y.
In the
event of any action or proceeding brought by either party against the other
under this Lease, the prevailing party shall be entitled to recover all costs
and expenses including the fees of its attorneys in such amount as the court
may
adjudge reasonable.
Z.
Tenant
shall not use the name of the Building for any purpose other than as an address
of the business to be conducted by the Tenant in the Premises. Tenant shall
not
use photographs, television or movie film of the Building for advertising or
other promotional purposes.
-28-
AA.
Except for signage outside of its office suite, Tenant shall not install, paint,
display, place or affix any sign, picture, advertisement or notice on any part
of the outside of the Building or in the interior of the Leased Premises which
is visible from the outside of the Building or from outside of the Leased
Premises. Landlord will prescribe a uniform pattern of identification signs
for
tenants to be placed in the corridors outside of the Leased
Premises.
BB.
Whenever and to the extent that Landlord shall be unable to fulfill, or shall
be
delayed or restricted in the fulfillment of any obligation hereunder in respect
to the supply or provision of any service or utility or the doing of any work
or
the making of any repairs by reason of being unable to obtain the material,
goods, equipment service, utility or labor required to enable it to fulfill
such
obligation or by reason of any statute, law or any regulation or order passed
or
made pursuant thereto or by reason of the order or direction of any
administrator, controller or board, or any governmental officer or other
authority, or by reason of not being able to obtain any permission or authority
required thereby, or during periods of inspection, alteration or improvement
of
the Building, or by reason of any other cause beyond its control, whether of
the
foregoing character or not, Landlord shall be entitled to extend the time of
fulfillment of such obligation by a time equal to the duration of such delay
or
restriction, and Tenant shall not be entitled to compensation for any
inconvenience, nuisance or discomfort thereby occasioned.
-29-
IN
WITNESS WHEREOF, the parties hereto have executed this Lease on the dates
specified by their respective signatures.
LANDLORD:
FOREST PARK REALTY INVESTMENTS, LLC
By
/s/ Xxxxxx
Xxxxx
Xxxxxx
Xxxxx - Managing Agent
Address:
0000
Xxxxxxxx, Xxxxx #0000
Xxxxxx,
XX 00000
TENANT: PATRIA
CORPORATION, INC.
By:
/s/ Xxxxx
Xxxxxx
Xxxxx
Xxxxx
Xxxxxx
- Chairman
By:
/s/ Xxxxxx
Xxxxxx
Xxxxxx
Xxxxxx
- President
-30-
EXHIBIT
"A"
TO
FOREST
PARK OFFICE LEASE
FLOOR
PLAN
-31-
EXHIBIT
"B"
TO
FOREST
PARK OFFICE LEASE
LEGAL
DESCRIPTION
0000
XXXXXXXXX XXXXX
All
that
part of Xxxx 0 xxx 0, Xxxxxx Xxxxxxxxxxx, Xxxx and County of Denver, State
of
Colorado, described as follows: Beginning at the Southeast corner said Lot
2;
thence Westerly along the South line of said Lot 2, 276.60 feet; thence
Northerly parallel to the East line of said Lot 2, 190.08 feet; thence
Northeasterly on an angle to the right of 13°15'19",
232.16 feet to a point on the Southerly right of way line of Leetsdale Drive;
thence Southeasterly along said Southerly right of way line 229.48 feet of
said
Lots 1 and 2, 362.70 feet to the Point of Beginning. Contains 2.37 acres, more
or less.
0000
XXXXXXXXX XXXXX
All
that
part of Xxxx 0 xxx 0, Xxxxxx Xxxxxxxxxxx, Xxxx and County of Denver, State
of
Colorado, described as follows: Beginning at the Southwest corner of said Lot
2;
thence Easterly along the South line of said Lot 2, 16.00 feet to the True
Point
of Beginning; thence continuing Easterly along the South line of said Lot 2,
339.6 feet more or less to a point 276.60 feet West of the Southeast corner
of
said Lot 2; thence Northerly, parallel to the East line of said Lot 2, 190.08
feet; thence Northeasterly on an angle to the right of 13°15'19",
232.16 feet to a point on the Southerly right of way line of Leetsdale Drive;
thence Northwesterly along said Southerly right of way line 404.51 feet to
a
point on Southeasterly line of a parcel described in Book 2126 at Page 507;
thence Southwesterly along said Southeasterly line 18.30 feet to a point on
the
West line of said Lot 1; thence Southerly along the West line of said Lots
1 and
2, 258.41 feet; thence Southeasterly on an angle to the left of 03°48'51",
240.53 feet to the True Point of Beginning. Contains 3.939 acres, more or
less.
-00-
XXXXXXX
"X"
XX
XXXXXX
XXXX OFFICE LEASE
RULES
AND REGULATIONS
The
Rules
and Regulations set forth in this Exhibit shall be and hereby are made a part
of
the Lease to which they are attached. Whenever the term "Tenant" is used in
these Rules and Regulations, it shall be deemed to include Tenant, its employees
or agents, and any other persons permitted by Tenant to occupy or enter the
Premises. The following Rules and Regulations may from time to time be modified
by Landlord.
1. OBSTRUCTION:
The
sidewalks, entries, passages, corridors, halls, lobbies, stairways, elevators
and other common facilities of the Building shall be controlled by Landlord
and
shall not be obstructed by Tenant or used for any purpose other than ingress
of
egress to and from the Premises. Tenant shall not place any item in any of
such
locations, whether or not any such item constitutes an obstruction, without
the
prior written consent of Landlord. Landlord shall have the right to remove
any
obstruction or any such item without notice to Tenant and at the expense of
Tenant.
2. ORDINARY
BUSINESS HOURS:
The
ordinary business hours of the Building shall be from 7:00 A.M. to 6:00 P.M.,
Monday through Friday of each week, and from 7:00 A.M. to 12:00 Noon on
Saturday, if requested by Tenant, excluding the legal holidays of New Years'
Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas
Day.
3. DELIVERIES:
Tenant
shall insure that all deliveries of supplies to the Premises shall be made
only
upon the elevator designated by Landlord for deliveries and only during the
ordinary business hours of the Building.
4. MOVING:
Furniture
and equipment shall be moved in or out of the Building only upon the elevator
designated by Landlord for moving, and then only during such hours and in such
manner as may be prescribed by Landlord. Landlord shall have the right to
approve or disapprove the movers or moving company employed by Tenant, and
Tenant shall cause such movers to use only the loading facilities and elevator
designated by Landlord.
5. HEAVY
ARTICLES:
No
safe
or article, the weight of which may, in the reasonable opinion of the Landlord,
constitute a hazard or damage to the Building or its equipment shall be moved
into the Premises. Safes and other heavy equipment, the weight of which will
not
constitute a hazard or damage the Building or its equipment shall be moved
into,
from or about the Building only during such hours and in such manner as shall
be
prescribed by Landlord, and Landlord shall have the right to designate the
location of such articles in the Premises.
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6. NUISANCE:
Tenant
shall not do or permit anything to be done on the Premises or in the Building
or
bring or keep anything therein which would in any way constitute a nuisance
or
waste, or obstruct or interfere with the rights of other tenants of the
Building, or in any way injure or annoy them, or conflict with the laws relating
to fire, or with any regulations of the fire department, or with any insurance
policy upon the Building or any part thereof, or conflict with any of the laws,
codes, rules or ordinances of any governmental authority having jurisdiction
over the Building.
7. BUILDING
SECURITY:
Landlord
may restrict access to and from the Premises and the Building outside the
ordinary business hours of the Building for reasons of building security.
Landlord may require identification of persons entering and leaving the Building
and, for this purpose, may issue building passes to tenants of the
Building.
8. PASS
KEY:
The
Building Manager may at all times keep a pass key to the Premises, and he and
other agents of the Landlord shall during normal business hours (or outside
business hours in the event of an emergency) be allowed admittance to the
Premises; subject, however, to Tenant's reasonable security requirements which
may prohibit access except when accompanied by Tenant's authorized security
personnel.
9. LOCKS
AND KEYS FOR PREMISES:
Subject
always to Tenant's reasonable security requirements, no additional lock or
locks
shall be placed by Tenant on any door in the Building and no existing lock
shall
be changed unless written consent of Landlord shall first have been obtained.
A
reasonable number of keys to the Premises and to the toilet rooms, if locked
by
Landlord, will be furnished by Landlord, and Tenant shall not have any duplicate
key made. At the termination of this tenancy, Tenant shall promptly return
to
Landlord all keys to offices and toilet rooms.
10. USE
OF WATER FIXTURES:
Water
closets and other water fixtures shall not be used for any purpose other than
that for which the same are intended, and any damage resulting to same from
misuse on the part of Tenant shall be paid for by Tenant. No person shall waste
water in any manner.
-34-
11. NO
ANIMALS OR EXCESSIVE NOISE:
With
the
exception of seeing eye dogs for the blind, no animals shall be allowed in
the
offices, halls, corridors or elevators of the Building. No person shall disturb
the occupants of this or adjoining buildings or space by the use of any radio
or
musical instrument or by the making of loud or improper noises.
12. BICYCLES:
Bicycles
or other vehicles shall not be permitted anywhere inside or on the sidewalks
outside of the Building, except in those areas designated by Landlord for
bicycle parking.
13. TRASH:
Tenant
shall not allow anything to be placed on the outside of the building, nor shall
anything be thrown by Tenant out of the windows or doors or down the corridors,
elevator shafts, or ventilating ducts or shafts of the Building. All trash
shall
be placed in receptacles provided by Tenant on the Premises or in any receptacle
provided by Landlord for the Building.
14. WINDOWS:
No
windows, shades, blinds, screens or draperies will be attached or detached
by
Tenant, and no awnings shall be placed over the windows without Landlord's
prior
written consent. Tenant agrees to abide by Landlord's rules with respect to
maintaining uniform curtains, draperies and linings at all windows and hallways
so that the Building will present a uniform exterior appearance. Tenant will
use
its best efforts to have all curtains, draperies and blinds closed at the end
of
each day in order to help conserve energy. Except in the case of fire or other
emergency, Tenant shall not open any outside window because the opening of
windows interferes with the proper functioning of the Building heating and
air
conditioning systems.
15. HAZARDOUS
OPERATIONS AND ITEMS:
Tenant
shall not install or operate any steam or gas engine or boiler, or carry on
any
mechanical business in the premises without Landlord's prior written consent,
which consent may be withheld in Landlord's absolute discretion. The use of
oil,
gas, or flammable liquids for heating, lighting or any other purpose is
expressly prohibited. Explosives or other articles deemed extra hazardous shall
not be brought into the Building.
16. HOURS
FOR REPAIR, MAINTENANCE AND ALTERATIONS:
Any
repairs, maintenance and alterations required or permitted to be done by Tenant
under the Lease shall be done only during the ordinary business hours of the
Building unless Landlord shall have first consented to such work being done
outside of such times. If Tenant desires to have such work done by Landlord's
employees on Saturdays, Sundays, holidays or weekdays outside of ordinary
business hours, Tenant shall pay the actual extra cost of such
labor.
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17. NO
DEFACING OF PREMISES:
Except
as
permitted by Landlord, Tenant shall not xxxx upon, paint signs upon, cut, drill
into, drive nails or screws into, or in any way deface the walls, ceilings,
partitions or floors of the Premises or of the Building, and any defacement,
damage or injury caused by Tenant shall be paid for by Tenant. Northwithstanding
the foregoing, Tenant may hang framed art, calendars, schedules, whiteboards
and
other reasonable office decorations, but shall at the end of the lease term
repair or patch any holes.
18. CHAIR
PADS:
During
the entire term of this Lease, Tenant shall, at its expense, install and
maintain under all caster chairs a chair pad or carpet casters to protect the
carpeting.
19. SOLICITATION,
FOOD AND BEVERAGES:
Landlord
reserves the right to restrict, control or prohibit canvassing, soliciting
and
peddling within the Building. Tenant shall not grant any concessions, licenses,
or permission for the sale or taking of orders for food, beverages, services
or
merchandise in the Building, nor install nor permit the installation or use
of
any machine or equipment for dispensing food, beverages, services or
merchandise, nor permit the preparation, serving, distribution or delivery
of
food, beverages, services or merchandise without the approval of Landlord and
in
compliance with arrangements prescribed by Landlord.
20. SIGNS
AND GRAPHICS:
No
sign,
placard, picture, advertisement, name or notice shall be inscribed, displayed
or
printed or affixed on or to any part of the outside of the Building without
the
written consent of Landlord, which consent shall not be unreasonably withheld,
and Landlord shall have the right to remove any such sign, placard, picture,
advertisement, name and notice without notice to and at the expense of Tenant.
At all times and at its sole discretion, Landlord shall have the express right
to control signage outside or inside the Building.
21. JANITORIAL
SERVICE:
Except
when necessary for Tenant security reasons, Tenant shall not employ any person
other than the janitor of Landlord for the purpose of cleaning the Premises
unless otherwise agreed to by Landlord. Except with the written consent of
Landlord, no person or persons other than those approved by Landlord shall
be
permitted to enter the Building for the purpose of cleaning the same. Tenant
shall not cause any unnecessary labor by reason of Tenant's carelessness or
indifference in the preservation of good order and cleanliness.
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22. ENERGY
CONSERVATION:
Tenant
shall see that the doors of the Premises are closed and securely locked before
leaving the Building, and must observe strict care and caution that all water
faucets or water apparatus are entirely shut off before Tenant or Tenant's
employees leave the Building, and that all electricity shall likewise be
carefully shut off, so as to prevent waste or damage, and for any default or
carelessness Tenant shall make good all injuries sustained by other tenants
or
occupants of the building or Tenant.
23. ADDITIONS
AND AMENDMENTS:
Landlord
reserves the right to make such reasonable additions and amendments to these
Rules and Regulations as in its judgment may from time to time be needful and
desirable for the safety, security, care, efficiency and preservation of good
order therein.
-37-
EXHIBIT
"D"
TO
FOREST
PARK OFFICE LEASE
REFURBISHING
ADDENDUM
SUITE
#G-120 - 5350 LEETSDALE DRIVE
PATRIA
CORPORATION, INC.
|
Tenant
Finish:
|
Premises
are leased “as is”, except that Landlord will provide and pay for new
standard building carpet and paint throughout the premises (color
choice
by Tenant). Landlord shall also provide and pay for the following
finish
work:
|
|
a.
|
Landlord
will remove the two HVAC units and concrete pads located in the window
well outside the premises so that the window well area can be
landscaped;
|
|
b.
|
Landlord
will remove equipment and false flooring in the “data center” portion of
the premises;
|
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c.
|
Landlord
will remove the data center fire suppression system in the “utility” room
(near the entry corridor within the
premises);
|
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d.
|
Landlord
will remove interior walls/doors to data center and utility room,
leaving
only one office adjacent to the entry hall;
and
|
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e.
|
Landlord
will replace “blacked-out” window in data center with typical glass
window.
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Any
and
all other tenant finish work or improvements, except as provided herein, shall
be at Tenant’s cost. Tenant shall obtain Landlord’s written consent to any such
work. Tenant may only use a licensed contractor approved by Landlord and any
such work shall not interfere with the peaceful possession of other tenants
in
the building.
Tenant
will hold Landlord harmless from any and all claims for unpaid labor and
materials by any contractor or vendor in connection with any tenant finish
work
or other improvements undertaken by Tenant for the premises.
-38-
EXHIBIT
"E"
TO
FOREST
PARK OFFICE LEASE
ADDITIONAL
PROVISIONS
|
1.
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While
this Lease is in effect, so long as Tenant is not in default and
is in
full compliance with the provisions of the lease, Landlord will not
lease
space or permit the sublease of space in the building at 0000 Xxxxxxxxx
Xxxxx to any branch bank with depository
services.
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2.
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Option
to Renew.
So long as Tenant is not in default under the Lease, Tenant shall
have the
right to extend the term of this Lease for two additional periods
of five
(5) years each on the same terms and conditions as herein contained,
except as hereinafter set forth, by giving written notice to Landlord
at
least three months before the expiration of the then existing term
of this
Lease. The basic monthly rental for each option period shall be determined
as follows: Within thirty (30) days next following receipt by Landlord
of
Tenant's notice of its intent to renew, the Landlord shall provide
Tenant
the proposed rental rate which shall equal the average of the then
current
rental rates paid by all exiting tenants occupying less than 10,000
feet
at the property. Tenant shall within ten (10) days thereafter advise
Landlord as to whether or not it still wishes to renew its lease
based on
the rental rate for these premises given by Landlord to Tenant. Renewal
of
the Lease shall be in an "as is" condition with all tenant finish
work to
be Tenant's responsibility.
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3.
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Tenant
hereby warrants that NO
real estate broker except for Xxxxx Xxxxxxxx of Xxxxx/Xxxxx Brokerage
has
represented or will represent it in this transaction and that no
finder's
fees have been earned by a third party. Tenant acknowledges that
Forest
Park Realty Investments, LLC and its agents are agents of Landlord
and are
not representing Tenant in this
transaction.
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4.
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Notwithstanding
anything to the contrary, Tenant shall be responsible for any alterations,
modifications or improvements to the Premises which may be required
under
the Americans with Disabilities Act (ADA) to the extent such are
required
as a result of any alterations or improvements other than the initial
build out of the premises or are part of additions made to the Premises
by
or on behalf of Tenant, or as a result of Tenant employing any individual
with a disability as defined by the
ADA.
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5.
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Landlord
and Tenant acknowledge that Tenant is in the process of submitting
all
necessary paperwork to the regulatory agencies (OCC, etc.) to obtain
a
license to operate a bank on the premises. Tenant shall provide Landlord
with proof of its application prior to occupancy of the premises.
Tenant
shall also provide Landlord with proof of approval of its application
and
acceptance of its bank charter once the OCC has issued a license
to Tenant
to operate as a bank on the premises. Tenant shall not operate any
bank or
depository services on the premises without such approval. Tenant’s
failure to obtain such approval from the OCC within one year of the
inception of the Lease shall negate any rights Tenant may be been
awarded
to exclusively operate a bank as listed in Section 1.
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6.
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Notwithstanding
any other provisions contained in this Lease, in the event that Tenant
or
its successors or assignees shall become insolvent or bankrupt, or
if or
their interest under this Lease shall be levied upon or sold under
execution or other legal process by any depository institution supervisory
authority (“Authority”), Landlord may in either such event, terminate this
Lease only with the concurrence of any receiver or liquidator appointed
by
such Authority, provided, that in the event this lease is terminated
by
the receiver or liquidator, the maximum claim of Landlord for rent
damages
or indemnity for inquiry resulting from the termination, rejection
or
abandonment of the unexpired Lease shall be by law no greater than
an
amount equal to all accrued and unpaid rent to the date of termination;
provided further that to continue the Lease, any receiver or liquidated
appointed by such Authority or assignee must continue to honor the
terms
of the Lease.
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-39-
