Exhibit 10.10
LEASE AGREEMENT
This Lease Agreement ("Lease") is made and entered into this 29th day of
August, 1998, by and between Lot 2 Fremont Holdings, LLC f/k/a XXXXX XXXXXX
LANDSCAPE, INC., a Colorado corporation ("Lessor") and THE XXXXXXXX GROUP, LTD.
("Lessee").
ARTICLE 1.
DEMISE, DESCRIPTION, USE, AND TERM
1.1. Demise. Lessor hereby leases to Lessee, and Lessee hereby rents from
Lessor that certain land (the "Land"), together with the building(s), structures
and related improvements constructed thereon and the appurtenances thereto
situate at 00000 Xxxx Xxxxxxx Xxxxx, in the County of Arapahoe, State of
Colorado, as more particularly described in Exhibit A hereto (collectively with
the Land, the "Premises").
1.2. Use. The Premises may be used for all lawful uses.
1.3. Term. The term of this Lease shall be for five (5) years (plus the
initial partial month, if applicable) commencing on the date Lessee begins
occupying the Premises, which shall be three (3) days following Substantial
Completion (as hereafter defined) of Landlord's Work (the "Commencement Date")
and ending at 12:0l a.m. on the fifth anniversary of the Commencement Date (the
"Expiration Date") (the "Lease Term") unless sooner terminated as provided
herein.
1.4. Termination. Lessee may terminate this Lease at any time during the
Lease Term upon thirty (30) days prior written notice to the Lessor on or after
the occurrence of a default or breach by Lessor under any of the Transaction
Documents (as defined in Section 17.5 hereof), which continues beyond any
applicable cure period.
ARTICLE 2.
RENT
2.1. Basic Rent.
(a) Lessee agrees to and shall pay Lessor, at Lessor's address for
notices provided below, or at such other place as the Lessor shall designate
from time to time in writing, as rent for the Premises (the "Basic Rent"), the
annual rental of One Hundred Twenty Thousand Dollars ($120,000) payable without
notice or demand, in equal monthly installments of Ten Thousand Dollars
($10,000) each, in advance on the first (1st) day of each calendar month during
the first lease year of the Lease Term.
(b) At the one year anniversary of the Commencement Date, and at each
annual anniversary thereafter, the Basic Rent shall be increased to reflect any
increase in the Index (as defined below). The adjustment in Basic Rent shall be
calculated as the annual Basic Rent of the immediately preceding lease year
multiplied by a quotient equal to: (i) the Index for the first full month of the
then current lease year; divided by (ii) the Index for the first full month of
the immediately preceding lease year.
(c) For the purposes hereof, the "Index" referred to hereinabove
shall be that which is presently designated as the All Urban Consumer Average
(CPI-U) and specifically that portion of the Index relating to Denver, Colorado,
published by the U.S. Department of Labor, Bureau of Labor Statistics. In the
event that publication of the said Consumer Price Index is modified or
discontinued in its entirety, the adjustment provided for herein shall be made
on the basis of changes in the most comparable and recognized index of the
purchasing power of the United States consumer dollar published by the U.S.
Department of Labor or other governmental agency, if said Department of Labor
ceases to publish such index. In the event that such index contemplated herein
is not reported for the months set forth in the fraction above, the parties
agree to utilize the Index reported for the month nearest to the date for which
said Index is required by the terms of this Lease.
(d) Notwithstanding anything to the contrary contained herein, no
adjustment shall be made to the Basic Rent which would: (i) reduce it below the
Basic Rent due for the immediately preceding lease year; or (ii) increase the
annual Basic Rent above One Hundred Forty Five Thousand Dollars ($145,000). Any
such adjustment shall be rounded off to the nearest whole dollar. In the event
of an upward adjustment of the Basic Rent, the Tenant shall pay to the Landlord,
within thirty (30) days of the receipt of the notice thereof, the additional
rent owed for the months which have elapsed in the then current lease year, it
being agreed that Lessee's failure to pay the increased amount of monthly Basic
Rent for the then current lease year prior to receipt of such notice shall not
trigger a default hereunder.
2.2. Additional Rent. During the Lease Term, Lessee agrees to pay, as
additional rent, in addition to the Basic Rent hereinbefore provided, the
following (collectively, with all other amounts payable by Lessee hereunder
other than Basic Rent, "Additional Rent"):
(a) Taxes and Charges. All (i) real property taxes, use and occupancy
taxes, special taxes, excise taxes, and assessments including street improvement
liens and assessments, if any, levied or assessed upon or against the Premises
and/or Lessor's or Lessee's estates in or use and occupancy of the Premises and
(ii) personal property and sales or use taxes with respect to personal property
located on the Premises. The same shall be paid by the Lessee directly to the
taxing or collecting authority (and shall be deemed to be Additional Rent
hereunder) on or before the date when penalties and interest shall become
payable with respect thereto. Lessee shall, upon request by Lessor, provide
Lessor with evidence of timely payment of the foregoing. Lessor shall forward
all bills for the foregoing to Lessee not less than fifteen (15) days from the
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earliest due date of such tax assessment or imposition. Notwithstanding the
foregoing, Lessee shall have no obligation to pay or reimburse Lessor for any
unrelated business income, franchise, estate, inheritance, successor or capital
levy tax of Lessor, or any net income or excess profits tax assessed against
Lessor.
(b) Casualty Insurance Premiums. All casualty and public liability
insurance premiums on or with respect to Lessee's activities at the Premises
required to be provided by Lessee hereunder.
(c) Water and Sewer Charges. All water and sewer rentals or charges
for use of water, sewers, sewer system, and sewage treatment facilities
servicing the Premises.
(d) Heat, Electricity, and Other Utilities. All expenses and charges
relating to heating, air conditioning, electricity, gas, steam and other energy
consumption or utilities related to or servicing the Premises, and all telephone
charges, together with any and all connection fees and metering charges.
2.3. Triple Net Lease. Lessee hereby acknowledges and agrees that this
Lease is intended to be a triple net lease" with the result that the Basic Rent
shall be absolutely net to Lessor of all costs and expenses incident to the
ownership and operation of the Premises (other than income, franchise, estate,
inheritance, successor, capital levy or excess profit taxes assessed against
Lessor and any debt service on any mortgage granted by Lessor on the Premises)
and Lessee shall be fully responsible for each and every cost and expense
related to the use and operation of the Premises except as expressly set forth
in Section 7.1 to the contrary.
ARTICLE 3.
TAXES AND ASSESSMENTS
3.1. Proration of First and Last Year Taxes. All such taxes and assessments
for the first and last years of the Lease Term shall, to the extent applicable,
be prorated between Lessor and Lessee on the basis of the ratio between the time
the Premises are leased to Lessee within such tax year and the time the Premises
are not so leased.
3.2. Contesting Levy, Assessment, or Charge. Lessor shall have the
exclusive privilege of protesting, contesting, objecting to, or opposing the
legality or amount of any such taxes, assessments, or public charges to be paid
by Lessee hereunder. Notwithstanding the foregoing, if Lessee shall, in good
faith, give Lessor notice that Lessee deems the same to be illegal or excessive,
and that it desires to contest such taxes, assessments or other charges (and in
fact commences such contest in a timely manner and in accordance with local
requirements), Lessor shall, to the extent permitted by law, allow Lessee to
defer payment of any such tax, assessment,
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fee, or charge and permit Lessee to contest the same, but only for so long as
the legality or the amount thereof is so contested by Lessee in good faith and
without subjecting the Premises to forfeiture, lien or execution; provided,
however, that if at any time payment of the whole or any part thereof shall
become necessary in order to prevent the forfeiture, execution or seizure of the
Premises or the termination of the right of redemption or the eviction of Lessee
or Lessor, Lessor shall nevertheless be entitled to pay the same after providing
Lessee with at least thirty (30) days prior written notice. Any such contest,
whether before or after payment, may be made in the name of Lessor or Lessee, or
both, as Lessee may determine, but Lessee shall notify Lessor of its election at
least thirty (30) days prior to the commencement of the proceeding and Lessor
shall cooperate reasonably in such contest. Any such contest shall be at the
sole cost and expense of Lessee. Each refund of any tax, assessment, fee, or
charge so contested shall be retained by Lessee to the extent it relates to a
period within the term of this Lease.
ARTICLE 4.
INSURANCE
4.1. Lessee Obligations. Lessee agrees to and shall, within ten (10)
days from the Commencement Date, secure from one or more reputable and
financially responsible insurance companies licensed to do business in the
jurisdiction in which the Premises is located and maintain during the entire
Lease Term, the insurance coverages identified on Exhibit B hereto.
4.2. Additional Insured. Lessee agrees that Lessor shall be named as
an additional insured on all liability insurance policies described on Exhibit
B, as its interest may appear, and Lessor shall be named as co-loss payee on all
casualty insurance policies described on Exhibit B covering the Premises.
4.3. Policies and Certificates of Insurance. The original policies
may be retained by Lessee; provided Lessee shall deposit with Lessor true and
complete copies of all policies, and furnish Lessor with proof of pre-payment of
the premium or premiums on any such policies as paid with proof of new coverage
not less than 30 days prior to expiration or termination of any then existing
coverage. Lessee shall also provide Lessor with original certificates of
insurance evidencing the foregoing coverages and providing that coverage may not
be suspended, cancelled, terminated or modified without 30 days prior written
notice to Lessor.
4.4. Failure to Secure. If Lessee at any time during the Lease Term
should fail to secure or maintain the foregoing insurance, or perform in a
timely manner any other requirements under this Article, the Lessor shall,
subject to the applicable notice and cure period set forth in Article 13 hereof,
be permitted to obtain such insurance or perform such requirements in the
Lessee's name or as the agent of the Lessee and shall be compensated by the
Lessee for the cost thereof.
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4.5. Proceeds. Claims under any casualty insurance policies (except for
those claims relating to Lessee's property) shall be adjusted, coordinated with
and approved solely by Lessor. All proceeds (except for those proceeds relating
to Lessee's property) from any casualty policy or policies shall be payable to
Lessor (or to Lessor and its mortgage lender jointly), who shall make such
proceeds available to Lessee for restoration of the Premises or retain such
proceeds as provided below.
4.6. Fire and Casualty Damage. If, during the Lease Term, the Premises are
damaged or destroyed by fire, flood, or other casualty:
(a) Lessee shall give prompt written notice thereof to Lessor; and
(b) Lessee may elect (i) to restore the Premises to their pre-casualty
condition, subject to differences not having an adverse, material effect on the
Premises, in which case Lessee shall be entitled to all insurance proceeds
related to the casualty, or (ii) terminate the Lease by giving Lessor at least
thirty (30) days prior written notice of such election to terminate the Lease,
in which case all insurance proceeds shall be retained by Lessor (or by Lessor
jointly with its mortgage lender).
4.7. Waiver of Subrogation. Each party hereby releases the other hereunder
from any liability which the injured party may have for property damage caused
by fire or other casualty with respect to which the injured shall be insured
under a policy of insurance containing provisions waiving subrogation. In
connection with the foregoing, any policy of casualty insurance obtained by
Lessee in accordance herewith and any insurance policy obtained by Lessor for
the Premises shall contain a waiver of subrogation provision.
ARTICLE 5.
UTILITIES; OTHER OBLIGATIONS
5.1. Utilities. Lessee shall pay all charges accruing during the Lease Term
for telephone, gas, electricity, steam, heat, sewage, and water used in or on
the Premises as provided in Article 2 above and shall arrange and pay for the
removal of snow, ice and rubbish from the Premises.
5.2. Compliance with Laws. Lessee agrees that it will comply in all
material respects with any laws applicable to the operation of its business on
the Premises.
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ARTICLE 6.
WASTE AND NUISANCE
Lessee shall not commit, or suffer to be committed, any material waste on
the Premises, nor shall it maintain, commit, or permit the maintenance or
commission of any material nuisance on the Premises or use the Premises for any
unlawful purpose or for any other purpose not expressly authorized hereunder.
ARTICLE 7.
REPAIRS
7.1. Lessee's Duty to Repair and Maintain. Lessee agrees during the Lease
Term hereof to keep the Premises in good operating order and repair, reasonable
wear and tear excepted. The foregoing obligation to maintain the Premises shall
include any structural repairs or additions which are necessary solely to comply
with applicable laws, codes, ordinances and regulations enacted after the date
hereof affecting the Premises including building, fire and life safety codes,
but shall exclude any other structural repairs or replacements. Lessee further
agrees to keep the Premises clean and to repair or replace all broken or damaged
doors, windows, HVAC systems, plumbing fixtures and pipes, flooring, stairways,
elevators, railings, or other portions of the Premises. Lessee also agrees to
maintain and repair the curbs and pavements in and about the Premises, together
with facilities appurtenant thereto, including entry ways and awnings. Except
for those structural items which are the responsibility of Lessee as provided
above, Lessor shall be solely responsible for any structural repairs or
replacements including the replacement of the roof, if necessary.
ARTICLE 8.
ALTERATIONS, IMPROVEMENTS, AND FIXTURES
8.1. Trade Fixtures. Lessee shall have the right at any time and from time
to time during the Lease Term, at its sole cost and expense, to affix and
install trade fixtures and equipment to, in, or on the Premises as it shall in
its reasonable discretion deem advisable, but in any event, consistent with all
applicable laws, codes and ordinances. Any such trade fixtures and equipment
installed in or affixed to or on the Premises shall remain the property of
Lessee, and Lessor agrees that Lessee shall have the right at any time, and from
time to time during the Lease Term to remove any and all such fixtures,
equipment and other property in the ordinary course of its business; provided,
however, that Lessee shall at its expense repair all damage caused by removal
thereof. Any such trade fixtures and equipment not removed from the Premises
prior to the expiration or sooner termination of the Lease Term shall be deemed
to have been abandoned by Lessee and shall
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thereupon become the absolute property of Lessor without compensation to Lessee.
8.2. Improvements. Lessee shall not make any structural changes, additions
or improvements to the Premises or otherwise perform any work which would
materially impair the value or functional utility of the Premises without
Lessor's consent, which consent may be withheld in Lessor's reasonable
discretion. Lessee shall have the right at its own cost and expense from time
to time during the Lease Term to construct on the Premises such non-structural
alterations, additions, and changes therein as it deems necessary or convenient
for its purposes, provided, however, that such improvements, alterations and
additions shall (i) be performed in accordance with all applicable laws, codes,
ordinances and regulations and without liens attaching to the Premises or any
portion thereof (ii) be made in a careful, workmanlike manner; and (iii) not
materially impair the value or functional utility of the Premises.
ARTICLE 9.
OUIET POSSESSION
Lessor shall, on the Commencement Date of the Lease Term as hereinabove set
forth, place Lessee in quiet possession of the Premises and, provided Lessee is
not in default hereunder, shall secure Lessee in the quiet possession thereof
against all persons lawfully claiming the same by, through or under Lessor,
during the entire Lease Term.
ARTICLE 10.
LESSOR'S WORK
10.1. Lessor, at Lessor's expense, shall construct and install all of the
buildings, structures and improvements to be located at the Premises ("Lessor's
Work") described in and in compliance with the requirements listed on Exhibit C
attached hereto (the "Requirements"), and otherwise in accordance with plans and
specifications shown on Exhibit D attached hereto (the "Lessor's Plan"). In the
event of any conflict or inconsistency between the Requirements and Lessor's
Plan, the former shall govern and control, unless and until Lessee agrees
otherwise in writing. All Lessor's Work shall be Substantially Completed by
September 1, 1998 (the "Scheduled Completion Date") and shall be performed in a
good and workmanlike manner, in compliance with all applicable laws, ordinances,
rules, regulations and other requirements of governmental authorities having
jurisdiction.
10.2. The Premises shall be deemed to be Substantially Completed
("Substantially Completed" or "Substantial Completion") when (a) all Lessor's
Work has been completed, except for: (i) any changes or additions to the
Lessor's Work submitted by Lessee to Lessor, and (ii) minor items of decoration,
the absence of which does not prohibit Lessee from occupying the Premises or
adversely affect the habitability of the Premises, as such items of decoration
are identified in a "punch list" (as that term is commonly used in the
construction industry) (the "Punch List") created
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pursuant to an inspection of the Premises by Lessor and Lessee, or their
designated representatives; and (b) Lessor shall have obtained and provided a
copy to Lessee of a Certificate of Occupancy for the Premises permitting its use
as described in Section 1.2, which Certificate of Occupancy shall be in effect
at all times during the Lease Term. The date of Substantial Completion shall be
the date on which the Punch List is initialled by Lessor and Lessee. The Punch
List shall be initialled by Lessor and Lessee on the day which is three (3) days
prior to the date that Lessee begins occupying the Premises, and Lessor shall
complete or correct all Punch List items within thirty (30) days after the date
the Punch List is so initialled.
10.3. If the Premises are not Substantially Completed on or before the
Scheduled Completion Date, then Basic Rent and Additional Rent shall xxxxx for a
period of time equal to the number of days from the Scheduled Completion Date
until the date of Substantial Completion. In addition, (a) Lessor shall provide
to Lessee office/warehouse space comparable to the Premises in any building
owned by Lessor and located in the proximity of the Building, for occupancy by
Lessee until the date of Substantial Completion (and Lessor shall pay rent and
all other costs associated with Lessee's occupancy of such space), and (b)
Lessor shall reimburse Lessee promptly after Lessor's receipt of Lessee's
invoices therefor for all costs and expenses paid or incurred by Lessee from and
after the Scheduled Completion Date in connection with Lessee's holdover or
other temporary occupancy of any office/warehouse space, including, without
limitation, rent and other sums payable under Lessee's lease of such space and
damages payable by Lessee to the landlord of such space.
10.4. If the Premises are not Substantially Completed on or before the one
hundred and twentieth (120th) day after the Scheduled Completion Date, then
Lessee shall have the right to terminate this Lease by giving written notice of
such termination to Lessor within ten (10) days thereafter, with such
termination becoming effective on the tenth (10th) day after receipt by Lessor
of such notice. If Lessee so terminates this Lease, then on or before the fifth
(5th) day after the day such termination becomes effective, Lessor shall refund
all amounts, if any, previously paid by Lessee to Lessor pursuant to this Lease.
10.5. If Lessor does not substantially complete or correct all Punch List
items on or before the thirtieth (30th) day after the Punch List is initialled
by Lessor and Lessee then (a) Basic Rent shall xxxxx for a period of time equal
to the number of days from the date upon which the Punch List items are required
to be substantially completed or corrected until the date on which all Punch
List items are completed or corrected to Lessee's reasonable satisfaction, and
(b) Lessee shall have the right to complete or correct all Punch List items, and
Lessee shall offset the sum of Lessee's payments to contractors for such
correction or completion of Punch List items against Lessee's next
installment(s) of Basic Rent.
ARTICLE 11.
SURRENDER OF PREMISES
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Lessee agrees to and shall, upon the expiration or sooner termination of
the Lease Term, promptly surrender and deliver the Premises to Lessor without
demand therefor in good condition, ordinary wear and tear excepted.
ARTICLE 12.
CONDEMNATION
12.1. Effect on Lease. If during the Lease Term or any extension or renewal
thereof, all or substantially all of the Premises should be taken for any public
or quasi-public use under any law, ordinance, or regulation or by the right of
eminent domain, or should be sold to the condemning authority under threat of
condemnation, this Lease shall terminate effective as of the date of the taking
or sale of the Premises by or to the condemning authority. In the event of any
other condemnation or taking, this Lease shall remain in full force and effect,
but the Basic Rent hereunder shall be equitably adjusted to reflect the
diminution in value of the Premises for purposes of Lessee's business
operations.
12.2. Allocation of Awards. Lessor alone shall be entitled to negotiate,
receive and retain all condemnation proceeds and awards and Lessee shall make no
claim with respect thereto provided that Lessee may make a separate claim for
the value of any leasehold improvements made by Lessee and any trade fixtures
which cannot be removed from the Premises in a commercially practicable manner,
such right to claim being hereby assigned to Lessor.
ARTICLE 13.
DEFAULTS AND REMEDIES
If Lessee or its permitted successors in interest shall (i) allow any Basic
Rent or Additional Rent to be in arrears more than fifteen (15) days after
receipt of Written notice thereof from Lessor, (ii) assign or sublet or purport
to assign or sublet this Lease or the Premises in violation of this Lease, (iii)
commence, or have commenced against it, a proceeding in bankruptcy under 11
U.S.C. (Candle) 101 et seq. which, in the case of an involuntary action, is not
stayed or dismissed within sixty (60) days from the date such proceeding is
commenced, or (iv) otherwise be in default under any other condition of this
Lease for a period of thirty (30) days after receipt of Written notice thereof
from Lessor or, if such default cannot reasonably be cured within such thirty
(30) day period, such longer period of time as Lessee may require (not to exceed
ninety (90) days), provided that Lessee commences to cure such default within
such thirty (30) day period and diligently proceeds to cure such default until
completed (any of the foregoing being herein referred to as an "Event of
Default"), then Lessor may, but shall not be obligated to:
(a) terminate this Lease without further notice to Lessee and maintain an
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action for payment of any then accrued and unpaid Basic Rent and Additional
Rent. In no event shall Lessor be entitled to receive any damages in respect of
any future Basic Rent or Additional Rent from and after the date of termination;
or
(b) make any such payment or perform any such act on Lessee's
part without waiving its rights based upon such Event of Default and without
releasing Lessee from its obligations under this Lease. Except as may be
specifically provided to the contrary in this Lease, Lessee shall pay to Lessor,
promptly after delivery by Lessor to Lessee of statements therefor, sums equal
to expenditures reasonably made by Lessor in connection with the curing of an
Event of Default pursuant to the provisions of this Article.
Lessor shall be obligated to mitigate its damages resulting from an Event
of Default hereunder by Lessee.
ARTICLE 14.
INSPECTION AND REPAIRS BY LESSOR
Upon twenty-four (24) hours prior notice (except in the case of
emergencies), Lessee shall permit Lessor and its agents to enter into and upon
the Premises at all reasonable times for the purpose of inspecting the same,
showing such Premises to prospective buyers, lenders or, during the last six (6)
months of the Lease Term, tenants, or for the purpose of maintaining or making
repairs or alterations to the buildings; provided that Lessor shall be under no
obligation to perform any such repairs or alterations, except as provided
herein. Under such circumstances, Lessor shall make all reasonable efforts not
to interfere with Lessee's operations at, and use of the Premises.
ARTICLE 15.
ASSIGNMENT AND SUBLEASE
15.1. Lessee shall not assign this Lease or sublet all or any portion of
the Premises without first obtaining Lessor's prior written consent thereto,
such consent not to be unreasonably withheld, conditioned or delayed; provided,
however, that the Lessee may sublet all or any portion of the Premises at any
time and without the consent of the Lessor if Lessee is not in default under
this Lease. If Lessor does not respond to Lessee in writing within thirty (30)
days after Lessor's receipt of Lessee's written notice of a proposed assignment
or sublet, Lessor shall be deemed to have consented to such proposed assignment
or sublet. If Lessor's consent is given, it will not be deemed a consent to any
further subletting or assignment. If Lessor consents to any such subletting or
assignment, it shall nevertheless be a condition to the effectiveness thereof
that a fully executed copy of the sublease or assignment be furnished to Lessor
and that any assignee assume in writing all obligations of Lessee hereunder.
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15.2. Notwithstanding anything to the contrary stated above, Lessee
may assign this Lease or sublet all or a portion of the Premises without
Lessor's consent (a) to any entity controlling, controlled by or under common
control with Lessee, or (b) as a result of any transfer or change in control of
Lessee, by operation of law or otherwise, including, without limitation, any
merger, consolidation, dissolution or any change in the controlling interest of
Lessee (in any single transaction or a series of related transactions).
ARTICLE 16.
ENVIRONMENTAL
16.1. Lessor represents and warrants that as of the date hereof and
Lessor agrees to reaffirm to Lessee in writing that on the Commencement Date:
16.1.1 Lessor holds and is in compliance with all environmental
permits, certificates, licenses, approvals, registrations and authorizations
("Permits") required under all applicable laws, rules and regulations in
connection with the Premises, all of such Permits are in full force and effect
and all renewal applications have been timely filed.
16.1.2 To the best of Lessor's knowledge, after due
investigation, no notice, citation, summons or order has been issued, no
complaint has been filed, no penalty has been assessed and no investigation or
review is pending or threatened by any governmental or other entity with respect
to any alleged violation by the Lessor or by anyone else in relation to the
Premises of any environmental statute, ordinance, rule, regulation or order of
any governmental entity.
16.1.3 Neither Lessor nor, to Lessor's knowledge, any other
party has received any request for information, notice, demand, or notification,
order or complaint alleging that it is or may be potentially responsible with
respect to any investigation or clean-up of any threatened or actual release of
any hazardous or toxic substance or waste or any pollutant or contaminant,
including petroleum products and radioactive materials ("Hazardous Substances")
to, at, on, in, under, or from the Premises.
16.1.4 No polychlorinated biphenyls ("PCBs") or
asbestos-containing materials are present at the Premises, nor are there any
underground storage tanks, active or abandoned, at the Premises.
16.1.5 To the best of Lessor's knowledge, no Hazardous Substance
has been released, spilled, leaked, discharged, disposed of, pumped, poured,
emitted, emptied, injected, leached, dumped or allowed to escape ("Released")
at, on, about or under the Premises.
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16.1.6 To the best of Lessor's knowledge after due investigation,
no oral or written notification of a Release or threat of Release of a Hazardous
Substance has been filed by or in relation to the Premises, nor is the Premises
listed or proposed for listing on the National Priority List promulgated
pursuant to CERCLA, on CERCLIS or on any similar state list of sites requiring
investigation or clean-up.
16.1.7 No consent, approval or authorization of, or registration
or filing with any person, including any environmental governmental authority or
regulatory agency, is required in connection with the execution and delivery of
this Lease or the consummation of the transactions contemplated hereby. Lessor
has or will prepare and file all applications for permit transfers in adequate
time for transfer to occur prior to closing hereunder.
16.1.8 Except as listed in Exhibit E and heretofore provided to
Lessee, there have been no environmental inspections, investigations, studies,
audits, tests, reviews or other analyses conducted in relation to the Premises.
16.1.9 Lessor knows of no facts or circumstances related to
environmental matters concerning the Premises that could lead to any future
environmental claims, liabilities or responsibilities against Lessor or Lessee.
16.2. Lessee represents and warrants that as of the date hereof
and will reaffirm in writing to Lessor that on the Commencement Date:
16.2.1 Lessee will comply in all material respects with all
environmental statutes, rules, regulations and orders of any federal, state or
municipal government applicable to its operations or activities at the Premises,
as in effect during the Lease Term.
16.2.2 During the Lease Term, Lessee will make any required
report of any ("Release") or threat of Release of any Hazardous Substance caused
by its activities or operations at the Premises to the appropriate environmental
agencies and provide notice of such Release or threat of Release to Lessor.
Lessee will assume responsibility for any investigation, clean-up or other
action to the extent based on such Release or threat of Release.
16.2.3 Lessee will not install any Hazardous Substance storage
tank, nor asbestos containing materials nor polychlorinated biphenyl ("PCB")
containing equipment at the Premises without the advance written permission of
Lessor.
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16.3. Indemnification, Waiver and Release:
16.3.1 Lessor does hereby agree to indemnify, defend and save
harmless Lessee, its directors, officers, employees, shareholders, successors
and assigns from all losses, costs, damages and expenses, fines, penalties, and
attorneys' and litigation fees resulting from any claim, demand, liability,
obligation, right or cause of action, including but not limited to governmental
action, (collectively, "Claims"), that are asserted against Lessee or the
Premises as a result of Lessor's breach of any representation, warranty, or
covenant hereof; or arising out of the operations or activities or presence of
Lessor or any other tenant or any agent, representative of Lessor or such other
tenant at the Premises; or arising from environmental conditions or violations
at the Premises, including without limitation the presence of Hazardous
Substances at, on, in, to, from or under the Premises or the discharge or
Release of Hazardous Substances from the Premises; provided, however, that
Lessor shall not be obligated to indemnify Lessee under this paragraph if Lessor
demonstrates that the Claim was based on the actions or operations of Lessee or
its agents, representatives or employees at the Premises.
16.3.2 Lessor hereby waives and releases Lessee from any and all
Claims, known and unknown, foreseen or unforeseen, which exist or which may
arise under common or statutory law, including CERCLA or any other statutes now
or hereafter in effect, other than claims based on Lessee Environmental
Conditions (as defined below).
16.3.3 Lessee does hereby agree to indemnify, defend and save
harmless Lessor from all Claims that are asserted against Lessor or the Premises
as a result of Lessee's breach of any representation, warranty or covenant
hereof; or arising out of the operations or activities of the Lessee at the
Premises; or arising from environmental conditions or violations at the Premises
including without limitation the presence of Hazardous Substances at, to, in,
from or, or under the Premises providing that Lessor demonstrates that such
environmental condition, or violation was based on events or conditions first
occurring during the Lease Term and only to the extent based on the activities
or operations of Lessee at the Premises ("Lessee Environmental Conditions").
16.3.4 Lessee hereby waives and releases Lessor from any and all
Claims, known and unknown, foreseen or unforeseen, which exist or which may
arise under common or statutory law, including CERCLA or any other statutes now
or hereafter in effect, to the extent based on Lessee Environmental Conditions.
16.3.5 The indemnities contained herein and the environmental
representations, warranties and covenants of Lessor and Lessee shall survive
termination of this Lease.
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ARTICLE 17.
MISCELLANEOUS
17.1. Notices. All notices and other communications from one
party to the other shall be in writing and shall be deemed to have been duly and
sufficiently given if mailed by United States Registered Mail or Certified Mail,
postage prepaid, or delivered by overnight express mail courier service and
addressed to the party to be notified as follows:
If to Lessee:
The Xxxxxxxx Group, Ltd.
000 X. Xxxxxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx, General Counsel
If to Lessor:
0000 X. Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
with a copy to
Xxxxxx X. Xxxxxxx, Esquire
0000 X.X.X. Xxxx., #000
Xxxxxxxxx, Xxxxxxxx 00000
Notices and other communications sent by registered or certified mail shall be
effective five (5) business days after being Deposited in the U.S. Mail. Notices
and other communications sent by hand delivery or overnight courier service
shall be effective on the date of delivery (if a business day) or the next
business day after delivery (if delivery does not occur on a business day).
17.2. Parties Bound. This Lease shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
permitted assigns.
17.3. Governing Law. This Lease shall be construed under and in
accordance with the laws of the State of Colorado, without regard to its
conflicts of laws principles.
17.4. Legal Construction. In case any one or more of the
provisions contained in this Lease shall for any reason be held to be invalid,
illegal, or unenforceable in any respect, such
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invalidity, illegality, or unenforceability shall not affect any other provision
thereof and this Lease shall be construed as if such invalid, illegal, or
unenforceable provision had never been contained herein. The captions of this
Lease are for convenience only and shall not be construed as part of this Lease
or as defining or limiting in any way the scope or intent of the provisions
hereof.
17.5. Sole Agreement of the Parties/No Amendment. This Lease and that
certain Asset Purchase Agreement and any document executed pursuant thereto
(collectively, the "Transaction Documents") by and between Lessor and Lessee
constitute the sole and only agreements of the parties hereto with respect to
the subject matter hereof and supersede any prior understandings or written or
oral agreements between the parties respecting the within subject matter. No
amendment, modification, or alteration of the terms hereof shall be binding
unless the same be in writing and signed by the parties to be bound.
17.6. Waiver of Default. No waiver by the parties hereto of any default or
breach of any term, condition, or covenant of this Lease shall be deemed to be a
waiver of any other breach of the same or any other term condition, or covenant
contained herein.
17.7. No Recordation. This Lease shall not be recorded without the prior
written prior consent of Lessor and any recordation hereof or of any Memorandum
of Lease without Lessor's consent shall be deemed an Event of Default hereunder.
17.8. Estoppel Certificates. Either party shall, at any time and from time
to time, upon not less than twenty (20) days' prior written request from the
other party, execute, acknowledge and deliver to the requesting party a
statement in writing certifying that (a) 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); (b) all rent under
the Lease has been paid to such date; (c) the Commencement Date and Expiration
Date of the Lease; and (d) whether to the party's knowledge the requesting party
is in default or whether the party has any claims or demands against the
requesting party and, if so, specifying the event of default, claim, or demand.
17.9. Signs and Advertising. Lessee shall be permitted, at Lessee's
expense, from time to time to erect, remove and re-erect signs in accordance
with applicable law, on or at the Premises in each case bearing Lessee's name or
an abbreviation or portion thereof or logo as the same may change from time to
time. Lessee shall maintain and repair said signs.
17.10. Legal Compliance. Lessor represents, warrants and covenants that on
the date hereof and on the Commencement Date, the Premises will comply with all
applicable laws, rules, regulations, orders and ordinances of all governmental
authorities having jurisdiction over the Premises.
17.11. No Brokers. Each party represents and warrants to the other that it
has not
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made any agreement or taken any action which may cause anyone to become entitled
to a commission as a result of the transactions contemplated by this Lease, and
each will indemnify and defend the other from any and all claims, actual or
threatened, for compensation by any such third person by reason of such party's
breach of its representation or warranty contained in this Section 17.11.
IN WITNESS WHEREOF, the undersigned Lessor and Lessee have executed this
Lease Agreement under their respective seals as of the day and year first above
written.
LESSOR
LOT 2, FREMONT HOLDINGS, LLC
By: /s/ Xxxxx X. Xxxxxx
-------------------------
Xxxxx X. Xxxxxx
Member
LESSEE
THE XXXXXXXX GROUP, LTD.
By: /s/ Xxxx X. XXxxxx
-------------------------
Name: Xxxx X. XXxxxx
Title: Vice President
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EXHIBIT A
Description of Land
Lot 2, Cherry Creek Business Center, Filing Number 6, Arapahoe County, Colorado.
Also known as 00000 Xxxx Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx.
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EXHIBIT B
Schedule of Required Insurance
General liability coverage of $2,000,000 aggregate, $1,000,000 per occurrence,
listing Lessor as "Additional Insured" and full property damage coverage for the
replacement value of the Premises (exclusive of costs of excavations,
foundations, underground utilities, footings and other similar costs).
EXHIBIT C
The Requirements
One 10,150 square foot main building consisting of approximately 7,000 square
feet of office space and 3,150 square feet of warehouse space, steel stud
construction with masonry and plaster exterior. One 3,000 square foot warehouse,
steel stud construction with steel skin.
EXHIBIT D
Lessor's Plan
Those 27 pages of work drawing entitled Xxxxx Xxxxxx Landscape, Inc., Arapahoe
County, Colorado, Building Construction Documents, assembled by Intergroup,
Inc., Architects supplied by Lessor to Lessee.
EXHIBIT E
Environmental Exceptions
No environmental studies of the property have been undertaken other than those
conducted by Alden Environmental Management, Inc. at the request of The Xxxxxxxx
Group, Ltd.
