EXHIBIT 10.36
LEASE AGREEMENT
(Office)
INVERNESS ASSOCIATES - 373
a Colorado general partnership
(As Landlord)
and
EIS, INC.
a California corporation
(as Tenant)
TABLE OF CONTENTS
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Page
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(S) 1. RENT.................................................................................................. 3
(S) 2. FINISH WORK FOR AND ACCEPTANCE OF THE PREMISES........................................................ 3
(S) 3. OPERATING EXPENSES.................................................................................... 3
(S) 4. SERVICES.............................................................................................. 7
(S) 5 SECURITY DEPOSIT.... ................................................................................. 9
(S) 6. CHARACTER OF OCCUPANCY................................................................................ 9
(S) 7. ALTERATIONS AND REENTRY BY LANDLORD................................................................... 10
(S) 8. ALTERATIONS AND REPAIRS BY TENANT..................................................................... 10
(S) 9. MECHANICS' LIENS/ PERSONAL PROPERTY TAX............................................................... 11
(S) 10. SUBLETTING AND ASSIGN-MENT............................................................................ 12
(S) 11. DAMAGE TO PROPERTY.................................................................................... 13
(S) 12. INSURANCE AND WAIVER OF SUBROGATION................................................................... 13
(S) 13. CASUALTY AND RESTORATION OF PREMISES.................................................................. 14
(S) 14. CONDEMNATION.......................................................................................... 14
(S) 15. DEFAULT............................................................................................... 15
(S) 16. SURRENDER............................................................................................. 19
(S) 17. SUBORDINATION AND ATTORNMENT.......................................................................... 20
(S) 18. ESTOPPEL.............................................................................................. 20
(S) 19. ENVIRONMENTAL......................................................................................... 21
(S) 20. SUBSTITUTED PREMISES.................................................................................. 22
(S) 21. AUTHORITIES/NOTICE.................................................................................... 22
(S) 22. RULES AND REGULATIONS................................................................................. 23
(S) 23. LIMITATION OF LANDLORD'S LIABILITY.................................................................... 23
(S) 24. PARKING............................................................................................... 23
(S) 25. MISCELLANEOUS......................................................................................... 23
(S) 26. SUBMISSION............................................................................................ 25
(S) 27. OPTION TO EXTEND...................................................................................... 25
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LEASE AGREEMENT
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(Office)
THIS LEASE ("LEASE") made as of July 29, 1997, is between
Inverness Associates - 373, a Colorado general partnership, having an office at
c/o Inverness Properties, Inc., 0 Xxxxxxxxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxxxx,
Xxxxxxxx 00000 ("LANDLORD"), and EIS, Inc., a California corporation having an
office at 373 Inverness Drive South, Suite 205, Englewood, Colorado ("TENANT").
This Lease is made on the terms and provisions set forth below, and
each of the terms, covenants, provisions, and agreements in this Lease shall be
a condition. The parties, for themselves, their legal representatives,
successors, and assigns, agree as follows:
A. Landlord leases to Tenant and Tenant leases from Landlord the
promises shown on the attached EXHIBIT A ("PREMISES"), containing approximately
5,960 rentable square feet and being a part of that building ("BUILDING") parcel
of real property ("REAL PROPERTY") the address of which is 000 Xxxxxxxxx Xxxxx
Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000, together with a non-exclusive
right, subject to the provisions hereof, to use all appurtenances thereto,
including, but not limited to, the surface parking area, walkways and other
common areas on the Real Property designated by Landlord for use by tenants of
the Building. (The Real Property, including common corridors, lobby area,
parking area, landscaped areas, walkways and other areas designated by Landlord
for use by all tenants of the Building are collectively referred to as the
"COMMON AREAS.")
B. (1) The term of this Lease shall, unless the term shall sooner
cease or expire as provided herein, commence on occupancy of the Premises by
Tenant, but in no event later than September 1, 1997, (the "COMMENCEMENT DATE")
and shall end on October 31, 2000, both dates inclusive and subject to extension
as provided in Section 2.C (the "LEASE TERM", which definition shall also
include any option term if the option is validly exercised), at a base annual
rental ("BASE RENT") payable in monthly installments as set forth below:
Period Monthly Payment
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Commencement to August 31, 1997, if applicable $ 0.00
September 1 - October 31, 1997 $2,297.00
November 1, 1997 - October 31, 2000 $4,594.00
Base Rent is calculated on the basis that the Premises shall contain
approximately the rentable square feet specified above. Tenant shall pay the
first monthly installment of Base Rent upon execution of this Lease.
(2) In addition to Base Rent, Tenant shall pay Landlord an amount
equal to Five and 25100 Dollars ($5.25) times the rentable square feet of the
Promises, which represents Base Operating Expenses for the Premises, payable in
equal monthly installments of Two Thousand Six Hundred Eight and 00100
($2,608.00), beginning on the first day of September, 1997 and continuing each
month thereafter during the term hereafter.
C. Tenant shall use the Promises only for the purpose of selling,
designing, and installing communication technology.
D. As referred to in Section 3.A, Base Operating Expenses for the
calendar year in which the term of this Lease commences, shall mean $5.25,
Rentable Area shall be 82,957 square feet, and Tenant's Pro Rate Share shall be
7.184%.
E. The security deposit referred to in Section 5 shall be $7,202.00.
F. Tenant shall be entitled to utilize, on an unreserved basis, one
parking space per 275 rentable square feet of the Premises in accordance with
and subject to the provisions of Section 24.
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Section 1. RENT.
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All Base Rent shall be paid in advance on the first day of each
month of the Lease Term. Rent for any period during the Lease Term which is for
less than one month shall be prorated based upon the actual number of days in
that month during which this Lease is in effect. All Base Rent and other charges
hereunder shall be payable without notice or demand and without any deduction,
offset or abatement, in lawful money of the United States of America to Landlord
at Inverness Associates, Department 0337, Xxxxxx, Xxxxxxxx 00000-0000, or to
such other persons or at such other places as Landlord may, from time to time,
designate in writing. "LEASE YEAR" as used in this Lease shall mean each 12 full
calendar month period following the Lease Commencement Date (as such date is
determined under Section 2.C) and each 12-month period thereafter.
Section 2. FINISH WORK FOR AND ACCEPTANCE OF THE PREMISES.
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A. The Premises shall be improved by Landlord at its cost in
accordance with the plan attached as EXHIBIT B ("TENANT FINISH WORK"). All work
and materials specifically identified on the attached Exhibit B shall be at
Landlord's cost and shall be referred to as "STANDARD TENANT FINISH." All work
and materials required to complete the Tenant Finish Work not specifically
identified on EXHIBIT B shall be at Tenant's cost and shall be referred to as
"ABOVE STANDARD TENANT FINISH." Landlord shall promptly cause its contractor to
commence and proceed with due diligence to complete the Tenant Finish Work in a
good and workmanlike manner and in compliance with all applicable laws, rules,
and regulations, and substantially in accordance with Exhibit B, subject to
delays beyond the control of Landlord or Landlord's contractor. Tenant
acknowledges that the Landlord may be completing the Tenant Finish Work, other
than carpeting and painting the Preinises which shall be done prior to the
Commencement Date, after Tenant has taken possession of the Premises.
B. Tenant's taking possession of the Premises shall be conclusive
against Tenant that as of the date of such taking the Promises were ready for
occupancy and in the condition agreed by the parties except for the remaining
Tenant Finish Work and those items set forth on the punch list (if any)
furnished to Landlord not later than 15 days after such taking of possession and
latent defects, if any, of which Landlord is given written notice not later than
90 days following the date Tenant takes possession. Damage which is the result
of the acts of Tenant or its employees or contractors, including any damage
which occurs during Tenant's move into the Premises, shall not be included on
the punch list. Landlord shall complete the punch list item with reasonable
diligence. If it has not taken possession earlier, Tenant shall be deemed to
have taken possession of the Premises 5 days after Landlord shall have delivered
to Tenant a notice that the Premises are ready for occupancy.
C. If Landlord shall permit Tenant to occupy any part of the
Premises; before the Lease Commencement Date, such occupancy shall be subject to
all of the provisions of this Lease. Early possession shall not advance the
expiration date of this Lease.
Section 3. OPERATING EXPENSES.
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A. The following terms shall have the meanings respectively given
them below:
(1) "BASE OPERATING EXPENSES" - the annual amount set forth in
Paragraph E on page 1 of the Lease multiplied by the total number of square feet
of Rentable Area. Tenant acknowledges that Landlord has not made any
representation or given Tenant any assurance that Base Operating Expenses will
equal or approximate the actual Operating
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Expenses for any Lease Year, including the first Lease Year.
(2) "RENTABLE AREA" - all rentable space available for lease in the
Building. If there is a significant change in the aggregate Rentable Area as the
result of an addition to the Building, partial destruction, modification to
design or other cause which causes a reduction or increase on a permanent basis,
Landlord's Accountants shall make such adjustments in the computations as shall
be necessary to reflect any such change.
(3) "TENANT'S PRO RATE SHARE" - Tenant's percentage portion of
increases in Operating Expenses as such percentage is specified in Paragraph E
on page 1 of this Lease. If at any time during the Lease Term, Tenant leases
additional space in the Building, Tenant's Pro Rata Share shall be recomputed by
dividing the total rentable square footage of space then being leased by Tenant
(including the Additional space) by the Rentable Area and the resulting
percentage figure shall then become Tenant's Pro Rata Share.
(4) "LANDLORD'S ACCOUNTANTS" - the individual or firm employed by
Landlord from time to time to keep the books and records for the Building and
Common Area and/or to prepare the federal and state income tax returns for
Landlord with respect to the Building and Common Area, which shall be certified
to by an appropriate representative of Landlord.
(5) "OPERATING EXPENSES" - all operating expenses of any kind or
nature determined in accordance with sound accounting practice as applied to the
operation and maintenance of first class office buildings in the metropolitan
Denver, Colorado area, including without limitation:
(a) all real property taxes and assessments levied against the
Building and/or Common Areas by any governmental or quasi-governmental
authority, including ny taxes, impositions, or assessments of a nature not
presently in effect and subsequently levied on the Building and/or Common Areas
as a result of the use, ownership or operation of the Building and/or Common
Areas, or for any other reason, whether in lieu of, or in addition to, any
current real estate taxes and assessments, provided, that (i) any taxes levied
on the rentals of the Building shall be determined as if the Building were
Landlord's only property and, (ii) in no event shall "taxes or assessments"
include any net federal or state income taxes levied or assessed on Landlord
unless such taxes are a specific substitute for real property taxes (such term
shall, however, include gross tax an rentals); expenses incurred by Landlord for
tax consultants and in contesting the amount or validity of any such taxes or
assessments shall be also included in such computations (all of the foregoing
are collectively referred to as "TAXES");
(b) Costs of supplies, including, without limitation, costs of
relamping all standard building tenant lighting as required from time to time;
(c) Costs in connection with obtaining and providing energy for the
Building, including, without limitation, costs of propane, butane, natural gas,
steam, electricity, solar energy and fuel oils, or coal;
(d) Costs of water and sanitary and storm drainage services,
(e) Costs of security services and of managing and operating any
computer which controls building energy consumption, life safety equipment, fire
alarms, and security access response, when applicable, and costs of janitorial
services for the Common areas.
(f) Costs of maintenance and non-structural repairs to any part of
the interior or exterior of the Building (and its systems and equipment) or
Common Areas, including without limitation costs under maintenance contracts and
repairs and replacements of
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equipment used in connection with such maintenance and repair work;
(g) Costs of maintenance and replacement of landscaping;
(h) Insurance premiums, including fire and all-risk coverage,
together with loss of rent endorsement, the part of any claim required to be
paid under the deductible portion of any insurance policy carded by Landlord in
connection with the Building or Common Areas or their component parts (where
Landlord is unable to obtain insurance without such deductible from a major
insurance carrier at reasonable rates), public liability insurance, and any
other insurance carried by Landlord on the Building or Common Area or their
component parts (all such insurance shall be in such amounts as Landlord may
reasonably determine);
(i) Labor costs, including wages and other payments, costs to
Landlord of workmen's compensation and disability insurance, payroll taxes,
welfare fringe benefits, and all legal fees and other costs or expenses incurred
in resolving any labor dispute;
(j) Professional building management fees,
(k) Legal, accounting, inspection and other consultation fees
incurred in the ordinary course of operating the Building and in making the
computations required hereunder; and
(l) Costs of capital improvements and structural repairs and
replacements made in or to the Building and/or Common Areas in order to conform
to new, or changes in existing, laws, ordinances, rules, regulations or orders
of any governmental or quasigovernmental authority having jurisdiction over the
Building and/or Common Areas effective after the date hereof ("REQUIRED CAPITAL
IMPROVEMENTS"); costs of any capital improvements and structural repairs and
replacements designed primarily to reduce Operating Expenses ("COST SAVINGS
IMPROVEMENTS"); and a reasonable annual reserve for all other capital
improvements and structural repairs and replacements reasonably necessary to
permit Landlord to maintain the Building as a first class office building. The
expenditures for Required Capital Improvements and Cost Savings Improvements
shall be amortized at a market rate of return over their useful life, as
reasonably detertnined by Landlord's Accountants, provided that the amortized
amount of any Cost Savings Improvement shall be limited in any year to the
reduction in Operating Expenses as a result thereof.
"Operating Expenses" shall not include: (i) costs of any work, including
painting, decorating and tenant-change work, which Landlord performs for any
tenant or in any tenant's space in the Building other than work of a kind and
scope which Landlord would be obligated to furnish to all tenants whose leases
contain a rental adjustment provision and services provision similar to those
herein; (ii) costs of repairs or other work occasioned by fire, windstorm or
other insured casualty to the extent of insurance proceeds received; (iii)
leasing commissions, advertising expenses and other costs incurred in leasing
space in the Building; (iv) costs of repairs or rebuilding necessitated by
condemnation; (v) interest on borrowed money or debt amortization, except as
specifically set forth above; or (vi) depreciation on the Building.
B. As provided below, for each calendar year of the Lease Term
(including the calendar year in which the Lease Term commences) Tenant shall pay
to Landlord Tenant's Pro Rata Share of the amount of the increase in the
Operating Expenses for the calendar year just completed over Base Operating
Expenses and shall also pay to Landlord monthly during each calendar year
following the year in which the Lease Term commences, an estimate of Tenant's
Pro Rata Share of the amount by which actual Operating
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Expenses attributable to the calendar year during which such amounts are paid
will exceed the Base Operating Expenses. As soon as practicable after the end of
each calendar year during the Lease Term, beginning with the end of the calendar
year in which the Lease Term commences, Landlord shall submit to Tenant a
statement setting forth: (i) the amount of the increase, if any, in the amount
of Tenant's Pro Rate Share for the calendar year just completed over Base
Operating Expenses, and (ii) for each calendar year following the year in which
the Lease Term commences, the difference, if any, between the amount of Tenant's
actual Pro Rata Share of the Operating Expenses for the calendar year just
completed and the estimated amount of Tenant's Pro Rata Share of the increases
paid for that year. Each statement shall also set forth the amount of the
estimated increases in Operating Expenses over Base Operating Expenses for the
new calendar year computed in accordance with the foregoing. To the extent that
the amount of Tenant's Pro Rata Share of actual increases for the period covered
by such statement is higher than Tenant's payments (if any) of its Pro Rata
Share of the estimated increases for the calendar year just completed, Tenant
shall pay to Landlord the difference in cash within 30 days following receipt of
the statement from Landlord. If, however, the amount of Tenant's Pro Rata Share
of the actual increases for the period covered by the statement is less than the
amount of Tenant's Pro Rata Share of the estimated increases paid during the
calendar year just completed, Landlord shall credit the difference against the
Tenant's estimated payment for such Operating Expenses for the current year.
Until Tenant receives each such statement, Tenant shall continue to pay the
amount required for the prior year, but Tenant shall commence payment to
Landlord of the monthly installments of such estimates on the basis of the
statement beginning on the first day of the month following the month in which
Tenant receives such statement. Tenant shall also pay to Landlord or deduct from
the rent, as the case may be; the difference, if any, between the monthly
installments of rent, so adjusted, for the new year and the monthly
installments of rent actually paid during the new year.
C. Tenant's obligation with respect to payment of its Pro Rata Share
of increases shall survive the expiration or early termination of this Lease and
Landlord shall have the right to retain the Security Deposit, or so much of it
as it deems necessary, to secure such payment attributable to the year in which
this Lease terminates. If this Lease is in effect for less than a full calendar
year during the first or last calendar year of the Lease Term, Tenant's Pro Rata
Share for such partial year shall be calculated by proportionately reducing the
Base Operating Expenses to reflect the number of months in iuch year during
which this Lease was in effect (the "Adjusted Base Operating Expenses"), and the
Adjusted Base Operating Expenses shall then be compared with the actual
Operating Expenses for that partial year to determine the amount, if any, of any
increases in the actual Operating Expenses for such partial year over the
Adjusted Base Operating Expenses.
D. Tenant shall have the right within 30 days after a statement of
actual Operating Expenses for a particular calendar year has been rendered by
Landlord, upon notice to Landlord, at Tenant's sole cost, to examine Landlord's
books and records relating to the determination of these Operating Expenses.
Unless Tenant objects to the resulting rental adjustment within the 30-day
period, the statement and adjustment shall be deemed conclusive.
E. In computing increases any special assessments shall be deemed
payable in such number of installments as permitted by law, whether or not
actually so paid. If the Building has not been fully assessed as a completed
structure, then for the purposes of computing the Operating Expenses for any
adjustment herein, Taxes shall be adjusted by Landlord as of the date on which
the adjustment is to be made to reflect full completion of the Building
including installation of Tenant Finish
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Work for all Rentable Area. If any lease entered into by Landlord with any
tenant in the Building is on a so-called "net" basis, or provides for a separate
basis of computation for any Operating Expenses, then, to the extent that
Landlord's Accountants determine that an adjustment should be made in making the
computations herein, Landlord's Accountants shall be permitted to modify the
computation of Base Operating Expenses, Rentable Area, and Operating Expenses
for a particular Lease Year in order to eliminate or otherwise modify any such
expenses which are paid for in whole or in part by such tenant. In making the
computations above Landlord's Accountants shall also be permitted to make such
adjustments and modifications to the provisions of this Section as shall be
reasonably necessary to achieve the intention of the parties. If the Rentable
Area is not fully occupied during a Lease Year, Landlord's Accountants may
reasonably adjust those Operating Expenses which are affected by the occupancy
rates for that Lease Year, or portion thereof, as the case may be, to reflect
full occupancy.
F. The Rentable Area, the Base Rent, and Tenant's Pro Rata Share may
be appropriately recalculated and adjusted in the event that the Building and/or
Premises are measured upon completion and it is determined that the square
footage of the Building and/or Premises differs from those figures set forth on
page I of this Lease.
G. Tenant shall at its sole cost and expense, separately contract for
and provide janitorial service to the Premises. Landlord may impose reasonable
rules, regulations and requirements on such janitorial service.
H. Tenant acknowledges that the Premises together with adjacent space
currently leased by General Electric Company (the "GE Space") are collectively
seperately metered for electrical power. Because of the prohibitive cost of
seperately metering the Premises and the GE Space, Landlord will not separately
meter the Premises. In lieu of such seperate metering, Landlord shall have the
electricity metered in Landlord's name and seperately xxxx Tenant and such
tenant as leases the GE Space for alectjical usage on a pro rate basis based on
the rentable square footage of each tenant Based on that formula, commencing
with the commencement of the Lease, Tenant would be responsible for 38% (5,960 +
15,690) of the electrical cost billed to Landlord. During such time as the GE
Space is unoccupied by a subsequent tenant, Tenant shall be responsible for all
of the electrical xxxx to Landlord, less an appropriate deduction, such
deduction to be reasonably determined and agreed upon between Tenant and
Landlord, for the electrical consumption that is required for the GE Space when
vacant. If the use of the Premises or the GE Space increase from Ordinary
Business Hours, Landlord shall make reasonable adjustments so that Tenant is
paying for an equitable pro ration of the electrical consumption. Any amounts
billed to Tenant by Landlord pursuant to this subparagraph H are in addition to
any other amounts paid to Landlord by Tenant pursuant to Section 3 of the Lease.
Section 4. SERVICES.
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A. Subject to the provisions of D below, Landlord agrees, without
charge except as provided in this Lease, and in accordance with those standards
prevailing from time to time for the Building: (1) to furnish running water at
those points of supply for general use of tenants of the Building, heated and
cooled air, electrical current, janitorial services and such maintenance as
Landlord reasonably deems necessary for all Common Areas; (2) to furnish, during
Ordinary Business Hours such heated or cooled air to the Premises as may, in the
reasonable judgment of Landlord, be required for the comfortable use and
occupancy of the Premises, provided that the recommendations of Landlord's
engineer regarding occupancy and use of the Premises are complied with by
Tenant, and cooled air is used only for standard office use; (3) if the Building
is equipped with elevators, to provide,
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during Ordinary Business Hours, non-exclusive use of a passenger elevator for
access to and from the Premises (with at least one such elevator being available
at all times except in the case of emergencies or repair); (4) to provide
janitorial services for the Premises to the extent of the Standard Tenant Finish
items contained therein (including such window washing of the outside of
exterior windows as may, in the judgment of Landlord, be reasonably required),
but unless and until Building standard changes, such janitorial services will be
provided after business hours only on Monday through Friday, excluding Legal
Holidays; and (5) to cause electric power to be supplied to the Premises for
building standard fluorescent lighting and for general purpose 120 volt single-
phase plug-in power for ordinary office usage, but in any event, the combination
of both are not to exceed 5 xxxxx per useable square foot per National Electric
Code connected load requirements ("PERMITTED POWER"). "ORDINARY BUSINESS HOURS"
shall be 7:00 a.m. to 6:00 p.m. Monday through Friday and 9:00 a.m. to 12:00
p.m. on Saturdays, Legal Holidays excepted. "LEGAL HOLIDAYS" shall mean New
Year's day, Presidents' Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day, Christmas Day, and such other national holidays as may be
established by the federal government.
B. To the extent (a) electric current in excess of Permitted Power is
used for any machinery, equipment or otherwise in the operation of the Premises,
(b) electric current is used in the Promises at times other than Ordinary
Business Hours, or (c) any use of machinery or equipment would overload Building
facilities (or would result in an imbalance in the HVAC systems designed for the
Building), then and in each such case Tenant's rent may be increased by Landlord
in such amounts as Landlord reasonably determines necessary to cover the
increased cost resulting from such uses, including additional air conditioning
costs and other ancillary costs incurred by Landlord attributable to any such
uses (including costs required to make such service available to the Premises).
Such increases shall be paid monthly with the monthly rental installment. Tenant
shall also reimburse Landlord for all costs of modifying the Building HVAC
system and/or extending or modifying any electrical service as Landlord may
reasonably determine is necessary as a result of Tenant's excess usage. Before
installation or use by Tenant of any equipment other than that which utilizes
only Permitted Power, or operation of the Premises for extended hours on an
ongoing basis, Tenant shall notify Landlord of such intended installation or
use, and obtain Landlord's consent. In addition to the foregoing, Landlord may,
at Landlord's option, then or at any time thereafter, require Tenant, at
Tenant's sole cost and expense, to install a check meter to assist in
determining the amount by which Tenant's rent should be increased. If Tenant
desires electric current or heated or cooled air to the Premises during periods
other than Ordinary Business Hours, Landlord will use reasonable efforts to
supply such services, but at the expense of Tenant at Landlord's standard rate
as reasonably established by it from time to time for such services. Not less
than 48 hours prior notice shall be given to Landlord of Tenant's desire for
these additional services. Tenant shall also pay the cost of replacing light
bulbs or tubes used in all non-standard Building lighting in the Premises.
C. If Tenant requests janitorial services other than those standard
services provided to other tenants of the Building, Tenant shall separately pay
for such service monthly upon billing by Landlord, or, at Landlord's option,
Tenant shall separately contract for such services with the same company
furnishing janitorial services to Landlord. Tenant shall have the right, subject
to Landlord's prior written consent and'such rules, regulations and requirements
as Landlord may reasonably impose (including, but not limited to, the
requirement thatsuch janitors belong to a trade union), to employ janitors other
than those employed by Landlord to perform such additional services.
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D. Landlord shall not be liable for failure to supply heating, air
conditioning, elevator, electrical, janitorial, lighting or other services
during any period as long as Landlord is using 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, including
utility regulations, it being agreed that such services may be discontinued,
reduced or curtailed (either temporarily or permanently) at such times as may be
necessary by reason of accident, repairs, alterations, improvements, strikes,
lockouts, riots, acts of God, application of applicable laws, rules and
regulations, or any other happening beyond the control of Landlord. In the event
of an interruption, reduction, or discontinuance of services (either temporary
or permanent) as set forth above, Landlord shall neither be liable for damages
to person or property as a result thereof nor shall the occurrence of any such
event in any way be construed as an eviction of Tenant, cause or permit an
abatement, reduction, or setoff of rent, or operate to release Tenant from any
of its obligations under this Lease.
E Tenant shall promptly notify the Landlord (or its representative)
of any accidents or defects in the Building of which Tenant becomes aware,
including defects in pipes, electric wiring, and HVAC equipment, and provide
Landlord with prompt notification of any condition of which it becomes aware
which may cause injury or damage to the Building or any person or property
therein.
Section 5. SECURITY DEPOSIT.
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Concurrent with the execution of this Lease, Tenant shall deposit
with Landlord, and will keep on deposit at all times during the term of this
Lease, the amount set forth:in Paragraph F on page 1 of this Lease, as security
for the payment by Tenant of all rent and other amounts agreed to be paid and
for the performance of all the terms and conditions of this Lease to be
performed by Tenant. If Tenant shall be in default in the performance of any
provision of this Lease, Landlord shall have the right to use the deposit, or so
much as is necessary, in payment of any, rent or other amounts in default,
reimbursement of expenses incurred by Landlord, and payment of damages incurred
by Landlord by reason of Tenant's default. In such event, Tenant shall, on
written demand of Landlord, promptly remit to Landlord a sufficient amount in
cash to restore the deposit to its original amount If the deposit is not
utilized, it (or as much thereof as has not been utilized for such purposes)
shall be refunded to Tenant, or to whoever is than the holder of Tenant's
interest in this Lease, without interest, upon full performance of this Lease by
Tenant. Landlord shall have the right to commingle the deposit with other funds
of Landlord and need not keep it in a trust account Landlord may deliver the
deposit to the purchaser of Landlord's interest in the Premises in the event
such interest be sold, and Landlord shall then be discharged from further
liability with respect to it. If claims of Landlord exceed the deposit, Tenant
shall remain liable for the balance of such claims.
Section 6. CHARACTER OF OCCUPANCY.
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Tenant shall: occupy the Premises only for the purpose set forth in
Paragraph D on Page 1 of this Lease for no other purpose; use them in a careful,
safe and proper manner; pay on demand for any damage to the Premises caused by
misuse or abuse thereof by Tenant, Tenant's agents or employees, or of any other
person entering upon the Premises under express or implied invitation of Tenant;
and comply with all, and not use or permit the Premises to be used for any
purposes prohibited by, the laws, codes, rules and regulations of any
governmental authority having jurisdiction feven if the foregoing shall
necessitate
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changes or modificafions within the Premises) or the provisions of the
restrictive covenants affecting the Building and not permit any nuisance on or
in the Premises. Tenant shall allow no use to be made of the Premises which will
cause the cancellation of any insurance policy covering the Premises or the
Building, and if the particular use to which the Tenant puts the Premises
causes an increase in insurance rates, Tenant shall pay any such increase.
Section 7. ALTERATIONS AND REENTRY BY LANDLORD.
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A. Unless otherwise expressly provided herein Landlord shall not
be required to make any modifications, improvements or repairs of any kind or
character to the Premises during the Lease Term, except such repairs to the
base, shelf and core of the Building, the roof, building standard HVAC,
electrical and plumbing facilities and Common Areas as may be deemed necessary
by Landlord for normal maintenance operations of the Building and Common Areas
(so long as the need for such repairs is not the result of Tenant's negligence)
and provided such obligation shall not include the interior surface of exterior
walls, windows, doors, or interior plate glass. 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.
B. Tenant shall permit Landlord to enter the Premises at any time
upon reasonable notice to Tenant to show the Premises for leasing or to examine
and inspect the same or, if Landlord so elects, to perform any obligations of
Tenant hereunder which Tenant shall fail to perform or to perform such cleaning,
maintenance, janitorial services, repairs, additions or alterations as Landlord
may deem necessary or proper for the safety, improvement or preservation of the
Premises or of other portions of the Building and Common Areas or as may be
required by governmental authorities. Any such reentry shall not constitute an
eviction or entitle Tenant to abatement of rent. Landlord shall have the right
at its election to make such alterations or changes in other portions of the
Building and Common Areas as Landlord may from time to time deem necessary and
desirable as long as such alterations and changes do not unreasonably interfere
with Tenant's use and occupancy of the Premises.
Section 8. ALTERATIONS AND REPAIRS BY TENANT.
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A. Tenant shall not make any alterations in or additions to the
Premises (subsequent to the work in the Premises performed by Landlord in
accordance with Section 2.A above), including installation of any equipment or
machinery which requires modification of or additions to any existing electrical
outlet or which would increase Tenant's usage of electricity beyond Permitted
Power (all such alterations being referred to collectively as "ALTERATIONS"),
without in each instance first obtaining the written consent of Landlord. As to
any Alterations to which Landlord has consented, Tenant, at its expense, shall
pay all engineering and design costs incurred by Landlord attributable to the
Alterations and obtain all required governmental permits and certificates, and
cause such Alterations to be completed in compliance therewith and all
applicable laws and regulations and all applicable requirements of Landlord's
insurance carriers. All Alterations shall be performed in a good and workmanlike
manner, using new materials and equipment equal or better in quality to the
odginal installations in the Premises. All repair and maintenance work required
to be performed by Tenant pursuant to the provisions of B below, and any
Alterations permitted by Landlord pursuant hereto, shall be done at Tenant's
expense by Landlord's employees or, with Landlord's consent by persons requested
by Tenant and authorized in writing by Landlord; provided, however, if such work
is performed by persons who are not employees of Landlord,
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Tenant shall pay to Landlord, upon receipt of billing therefor, the costs for
supervision and control of such persons as Landlord may determine to be
necessary. If Landlord authorizes persons requested by Tenant to perform such
work, prior to the commencement of any such work, Tenant shall on request
deliver to Landlord certificates issued by insurance companies qualified to do
business in 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 (and any Mortgagee) as an additional insured. Each
such certificate shall provide that the same may not be canceled or modified
without 10 days prior written notice to Landlord and such Mortgagee. Further,
Landlord or such Mortgagee shall have the right to post notices in the Premises
in locations which will be visible by parties performing any work on the
Promises stating that Landlord is not responsible for the payment for such work
and setting forth such other information as Landlord may deem necessary.
Alterations, repair and maintenance work shall be performed in a manner which
will not unreasonably interfere with, delay, or impose any additional expense
upon Landlord in the maintenance or operation of the Building or upon other
tenants' use of their premises.
B. Tenant shall keep the Premises in as good condition and repair as
when they were entered upon, and in an orderly state, loss by fire or other
casualty or ordinary wear excepted. Subject to Landlord's obligation to make
repairs in the event of certain casualties as set forth in Section 13 , Landlord
shall have no obligation for the repair or replacement of any portion of the
interior of the Premises which is damaged or wears out during the Lease Term
regardless of cause, including, without limitation, carpeting, draperies, window
coverings, interior plate glass, wallcoverings, painting, or any of Tenant's
property or betterments in the Premises.
C. All Alterations and permanent fixtures installed in the Premises,
including all partitions, paneling, carpeting, drapes or other window covering,
and light fixtures (but not including movable office furniture not permanently
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
without disturbance or injury at the end of the Lease Term, unless Landlord
gives Tenant notice not later than 15 days before the end of the Lease Term to
have Tenant remove all or any of the Alterations, and which event Tenant shall
promptly remove at Tenant's expense the Alterations specified by Landlord and
restore the Premises to their prior condition, reasonable wear and tear
excepted.
Section 9. MECHANICS' LIENS/ PERSONAL PROPERTY TAX.
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A. Tenant shall cause to be paid all costs for work done or caused
to be done by Tenant an the Premises (including work performed by Landlord or
its contractor at Tenant's request following commencement of the Lease Term) of
a character which could result in liens on Landlord's interem Tenant will keep
the Premises free and clear of all mechanics' and other liens on account of work
done for Tenant or persons claiming under it, excluding Tenant Finish Work
performed by Landlord pursuant to this Lease. Tenant agrees to indemnify and
defend Landlord with respect to all liability, loss, damage, cost or expense,
including attorneys' fees, on account of any claims of any nature whatsoever,
including claims or liens of laborers or materialmen or others, for work
performed for or materials or supplies furnished to Tenant or persons claiming
under Tenant Should any liens be filed or recorded against the Premises and/or
the Building or any action affecting the title thereto be commenced as a result
of such work, Tenant shall cause such liens to be removed of record
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within 5 days after notice from Landlord. If Tenant desires to contest any claim
or lien, Tenant shall furnish to Landlord adequate security of at least 150% of
the amount of the claim, plus estimated costs and interest, or, at Landlord's
option, file a bond and obtain a release of the lien pursuant to applicable law.
If a final judgment establishing the validity or existence of any such lion is
entered, Tenant shall pay and satisfy it at once. If Tenant shall be in default
in paying any charge for which a mechanic's lien or suit to foreclose the lien
has been recorded or filed, and shall not have given Landlord security as
provided above, Landlord may (but without being required) 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.
B. Tenant shall pay all sales and use taxes imposed as the result of
Tenant's business conducted on the Premises and all personal property taxes
assessed against personal property of Tenant situated thereon during the Lease
Term.
Section 10. SUBLETTING AND ASSIGNMENT.
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A. Without the prior written consent of Landlord neither Tenant
nor Tenant's legal representatives or successors, shall, by operation of law or
otherwise, assign or mortgage this Lease or sublet the whole or any part of the
Premises or permit any part thereof to be used or occupied by others.
Landlord's consent to any such transaction shall be in Landlord's sole and
absolute discreton. The term "assign" as used herein, shall also include the
following: (i) a sale or distribution by Tenant of all or substantially all of
its assets, (ii) the sale or transfer by Tenant of all or substantially all of
its stock if Tenant is a corporation; (iii) a merger of Tenant with another
corporation; (iv) a sale or transfer of all or substantially all of the
beneficial ownership interests in a tenant which is a partnership; or (v) an
assignment of a part interest in this Lease or any assignment from one co-tenant
to another.
B. If this Lease is assigned, or if the Premises or any part
thereof is sublet or occupied by other than Tenant, Landlord may, after default
by Tenant, collect rent from the assignee, subtenant, or occupant, and apply the
net amount collected to the rent and other charges hereunder, but no such
assignment, subletting, occupancy, or collection shall be deemed an acceptance
of the assignee, subtenant, or Occupant as the Tenant hereof, or a release of
Tenant from further performance by Tenant unless expressly agreed to in writing
by Landlord. Consent by Landlord to any one assignment or subletting shall not
be construed as releasing the requirement of obtaining the Landlord's written
consent to any further assignment or subletting rincluding subletting by any
subtenant). Notwithstanding the consent of Landlord to any subletting or
assignment, Tenant shall not be relieved from its primary obligations hereunder
to Landlord including but not limited to the payment of all Base Rent and
Tenant's Pro Rata Share of increases in Operating Expenses unless explicitly
agreed to in writing by Landlord. Landlord's consent to any requested subletting
or assignment shall not waive Landlord's right to refuse to consent to any other
such request Tenant shall pay to Landlord within 30 days of receipt of an
invoice therefor all reasonable costs incurred by Landlord in reviewing and
preparing documents with respect to any proposed subletting or assignment of the
Premises.
C. In the event Tenant receives rental or other sums from any
subtenant or assignee in excess of the Base Rent and increases in Operating
Expenses required to be paid by Tenant, Landlord shall be entitled to 50% of
such excess. Tenant shall promptly pay to Landlord 50% of such excess rental as
when it is received by Tenant from any such subtenant or assignee.
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Section 11. DAMAGE TO PROPERTY.
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A. Tenant shall not hold or attempt to hold Landlord liable for
any injury or damage, either proximate or remote, occurring through or caused by
fire, water, steam, or any repairs, alterations, injury, accident, or any other
cause, to any furniture, fixtures, Tenant improvements, or other personal
property of Tenant kept or stored in the Premises or in other parts of the
Building and/or Common Areas or to Tenant's business or loss of income from it,
whether by reason of the negligence or default of the owners or occupants
thereof or any other person or otherwise, and keeping or storing of all property
of Tenant in the Building, Common Areas and/or Premises shall be at the sole
risk of Tenant Tenant waives all claims with respect to damage to property or
personal injury, except with respect to personal injury claims arising out of
the affirmative negligent acts or intentional misconduct of Landlord or its
agents or employees.
B. Subject to provisions of Section 12 below, Tenant agrees to
indemnify, defend, and save Landlord harmless of and from all liability, loss,
damages, costs, or expenses, including attorneys' fees, on account of injuries
to the person or property of Landlord or of any other tenant in the Building, or
to any other invitee in the Building and Common Areas for any purpose
whatsoever, where the injuries are caused by the negligence or misconduct of the
Tenant, Tenant's agents, servants or employees, or of any other person entering
upon the Premises; under express or implied invitation of Tenant, or where such
injuries are the result of the violation of the provisions of this Lease by any
of such persons.
Section 12. INSURANCE AND WAIVER OF SUBROGATION.
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A. Landlord shall maintain property insurance on the shell and
core of the Building and on the Premises, Building and Common Areas to the
extent of the Standard Tenant Finish therein, in such amounts, from such
companies, and on such terms and conditions, including loss of rental insurance,
as Landlord deems appropriate. Landlord will not carry insurance of any kind on
Tenant's furniture and furnishings or an any fixture or equipment removable by
Tenant under the provisions of this Lease or any other improvements installed in
the Premises by or for Tenant other than Standard Tenant Finish, and Landlord
shall not be obligated to replace or repair any damage to them.
B. Tenant shall maintain throughout the term of this Lease "all
risk" insurance an all of Tenant's property and betterments in the Premises
including, without limitation, all furniture, fixtures, personal property, and
all tenant finish in excess of that included within the Standard Tenant Finish.
C. Tenant shall maintain throughout the term of this Lease a
comprehensive general liability policy, including protection against death,
personal injury and property damage, issued by a reputable insurance company
qualified to do business in Colorado with a single limit of not less than
$1,000,000.
D. All policies of insurance required to be carried by Tenant
shall name Landlord as an additional insured. Each such policy shall provide
that it may not be canceled or modified without at least 30 days prior written
notice to Landlord and any Mortgagee. Tenant shall deliver certificates as
requested by Landlord evidencing that such insurance is in force and effect. The
limits of such insurance shall not, under any circumstances, limit the liability
of Tenant hereunder.
E. Notwithstanding anything to the contrary contained herein,
Landlord and Tenant hereby mutually waive and release their respective rights of
recovery against each other for (a) any loss to its property capable of being
insured against by "all risk" insurance coverage whether carried or not; and
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(b) all loss, cost, damage or expense arising out of or due to any interruption
of business (regardless of the cause therefor), increased or additional
operating costs or other costs or expenses, whether similar or dissimilar,
which could be insured against under business interruption insurance (whether or
not carried). Each party shall notify their insurers of these mutual waivers,
obtain at its cost waivers of subrogation and any other special endorsements
required by their insurer to evidence compliance with the aforementioned waiver,
and shall upon request provide the other evidence that its policies have been so
endorsed.
Section 13. CASUALTY AND RESTORATION OF PREMISES.
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A. If the Premises or the Building are damaged by fire or other
casualty so as to render the Premises wholly untenantable, and if a licensed
architect selected by Landlord shall certify in writing to Landlord and Tenant
within 60 days of the casualty that the Premises cannot, with the exercise of
reasonable diligence, be made fit for occupancy within 180 days from the date
of the casualty, then this Lease shall terminate as of the date of such casualty
and Tenant shall thereupon surrender to Landlord the Premises and all interest
therein, and Landlord may reenter and take possession of the Premises and remove
Tenant therefrom. Tenant shall pay rent, duly apportioned, up to the time of
such termination. If, however, the damage is such that the architect shall
certify within the 60-day period that the Premises can be made tenantable within
the 180-day period, then, except as provided in C below, Landlord shall repair
such damage to the extent of the Standard Tenant Finish with all reasonable
promptness.
B. If the Premises, without the fault of Tenant, is slightly
damaged by casualty, but not so as to render them wholly untenantable or to
require a repair period in excess of 180 days, then, Landlord, after receiving
notice in writing of the occurrence of the casualty, shall, except as provided
in C below, cause them to be repaired to the extent of the Standard Tenant
Finish with all reasonable promptness. If the estimated repair period as
established in accordance with the provisions of A above exceeds 180 days, then
the provisions of A shall control even if the Premises are not wholly
untenantable.
C. If the Building is materially damaged by casualty so that
the estimated repair period established in accordance with A above exceeds 180
days, or if the damage is material and is not covered by Landlord's casualty
insurance (even if in either instance the Premises may not be affected, or if
affected, can be repaired within the 180 day period), Landlord may, within 60
days of such casualty, in the exercise of its reasonable business judgment,
determine not to reconstruct or rebuild the Building, in which event, upon
notice in writing to that effect given by Landlord to Tenant within the 60-day
period, Tenant shall pay the rent and other charges, properly apportioned up to
the date of notice (or the date of the casualty if the Promises is untenantable
by reason of such casualty), and this Lease shall terminate as of such date.
D. Provided that the casualty is not the fault of Tenant,
Tenant's agents, servants or employees, Tenant's rent shall xxxxx during any
such period of repair and restoration in the same proportion that the part of
the Premises rendered untenantable bears to the whole.
Section 14. CONDEMNATION.
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If all or substantially all of the Premises, or any portion of
the Building and Common Areas which shall render the Premises untenantable,
shall be taken by condemnation or similar proceeding, or shall be conveyed in
lieu thereof, then this Lease, at the option of either Landlord or Tenant
exercised by either party giving notice to the other of such termination within
30 days after such taking or conveyance, shall terminate and the rent shall be
duly
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apportioned as of the date of such taking or conveyance. Tenant shall surrender
to Landlord the Premises and all interest therein under this Lease, and if
necessary Landlord may reenter and take possession of the Premises or remove
Tenant therefrom. If less than all of the Premises shall be taken by such
proceeding, Landlord shall promptly repair the Premises as nearly as possible
to their immediately prior condition unless Landlord elects not to reconstruct
or rebuild as described in Section 13.C. Landlord shall receive the entire award
or consideration for the portion of the Building so taken in the event of any
such taking or conveyance, provided Tenant shall be entitled to separately claim
for Tenant's trade fixtures and removable personal property.
Section 15. DEFAULT.
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A. Each of the following shall be an "EVENT OF DEFAULT":
(1) Tenant shall fail to pay punctually rent or any other
amounts due hereunder, provided, however, that Tenant may cure an Event of
Default under this provision at any time prior to 5 days after receipt of
written notice thereof from Landlord. Tenant shall not be entitled to more than
2 notices of a monetary default during any Lease Year, and thereafter if any
rent or other amounts owing hereunder are not paid when due, no cure period
shall be allowed under this provision;
(2) Tenant shall abandon the Premises,
(3) This Lease or the interest of Tenant shall be
transferred to or shall pass to any other person or party except in accordance
with Section 10;
(4) This Lease or the Premises (or any part) shall be
taken by execution or other process directed against Tenant, or shall be taken
by any attachment by any creditor of or claimant against Tenant and is not be
discharged or disposed of within 15 days after its levy;
(5) The filing of any petition or the commencement of any
case or proceeding by the Tenant under any provision or chapter of any federal
or state bankruptcy low or any other federal or state law relating to insolvency
or reorganization, the adjudication that the Tenant is insolvent or bankrupt, or
the entry of an order for relief under any federal or state bankruptcy law with
respect to Tenant.
(6) The filing of any petition or the commencement of any
case or proceeding described in (5) above against the Tenant, unless such
petition and all related proceedings are dismissed within 60 days from the
filing, the filing of an answer by Tenant admitting the allegations of any such
petition, or the appointment of or taking possession by a custodian, trustee or
receiver for all or any assets of the Tenant, unless such appointment is vacated
or dismissed within 60 days from the date of such appointment;
(7) The insolvency of the Tenant or the execution by the
Tenant of an assignment for the benefit of creditors, the convening by Tenant of
a meeting of its creditors, or any class thereof, for purposes of effecting a
moratorium upon or extension or composition of its debts, or the failure of the
Tenant generally to pay its debts as they mature;
(8) The admission in writing by Tenant or if Tenant is a
partnership any partner of Tenant that Tenant is unable to pay its debts as they
mature or it is generally not paying its debts as they mature;
(9) Tenant shall fail to take possession of the Premises on
the date the Lease Term commences,
(10) Tenant shall fail to perform any of the other provision
of this Lease
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on Tenant's part to be performed, and such failure shall continue for a period
of 30 days after written notice to Tenant, or if such failure cannot be
reasonably be cured within the 30-day period but can be had within 75 days or
less, Tenant shall not in good faith have commenced such cure within such 30-day
period and shall not diligently proceed to completion.
B. Upon any one or more Events of Default, then Landlord shall
at its election have the right, then or at any time thereafter, either:
(1) (a) To reenter and take possession of the Premises (or any
part) without demand or notice, and repossess them and expel Tenant and those
claiming through or under Tenant and remove the effects of both or either, using
such force as may be necessary, without being liable for the prosecution
thereof, or being deemed guilty of trespass and without prejudice to any
remedies. Should Landlord elect to reenter as provided herein, or should
Landlord take possession pursuant to legal proceedings or pursuant to any notice
provided for by law, Landlord may, from time to me, without terminating this
Lease, relet the Premises (or any part), either alone or in conjunction with
other portions of the Building, in Landlord's or Tenant's name, but for the
account of Tenant, for such term or term (which may be greater or less than the
perioi which would otherwise have constitked the balance of the Lease Term) and
on such conditions and upon such other term (which may include such concessions,
free rent, alterations, and repair of the Premises) as Landlord, in its sole
discretion, nay determine, and Landlord may collect and receive the rents
therefor. Landlord shall not 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 reentry or taking possession of the Premises by Landlord
shall be construed as an election on Landlord's part to terminate this Lease
unless written notice of such intention is given to Tenant and 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 the
notice specifically so states. Landlord reserves the right following any reentry
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 the
notice.
(b) If Landlord elects to take possession of the Premises as
provided herein without terminating the Lease, Tenant shall pay to Landlord (i)
the rent and other sums 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 of Landlord's expenses incurred in connection with
such reletting, including, without limitation, all repossession costs, brokerage
commissions, legal expenses, attorneys' fees, alteration, remodeling and repair
costs, tenant finish costs, and expenses of preparation for such reletting. If,
in connection with any reletting, the now lease term extends beyond the existing
Lease Term, or the premises covered thereby include other premises not part of
the Premises, a fair apportionment of the rent received from such reletting and
the expenses incurred in connection therewith, as provided above, will be made
in determining the net proceeds received from reletting within such
determination, any rent concessions will be apportioned over the term of the new
Lease. Tenant shall pay such amounts to Landlord monthly on the days on which
the rent and other amounts owing hereunder would have been payable if possession
had not been retaken and Landlord shall be entitled to receive them from Tenant
on each such day;
(2) To give Tenant written notice of intention to terminate this
Lease as of the date of such notice or an any later date specified therein, and
on such date, Tenant's right to possession of the Premises shall cease and the
Lease shall terminate, except as to Tenant's liability as provided below, as if
the expiration date specified in such notice was the date otherwise fixed as
the end of the Lease
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Term. If this Lease is terminated pursuant to the provisions of this (2), 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 Lease Term had it 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,
without limitation, the expenses enumerated in (1)(b). Landlord shall be
entitled to collect these 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 these 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 bargain and not as a penalty, an amount equal to the
worth at the time of termination of the excess, if any, of the amount of rent
reserved and payable under this Lease for the balance of the Lease Term hereof
over the amount of rental which Landlord can obtain as rent for the remaining
balance of the term ("REASONABLE RENTAL VALUE"), plus all amounts incurred by
Landlord in obtaining possession of and reletting the Premises including but
not limited to attorneys' fees, reletting expenses, alterations and repair
costs, and brokerage commissions), plus all amounts for unamortized Standard
Tenant Finish costs which have not yet been recovered through rental payments.
(3) In addition to Landlord's rights set forth in (1) and (2)
above, if Tenant fails to pay rent and other amounts owing hereunder as and when
due more than two times during any 12-month period during the Lease Term, then,
upon the occurrence of the third or any subsequent failure to pay during that
12-month period, Landlord, at its sole option, shall have the right to require
that Tenant, as a condition precedent to curing such default, pay to Landlord,
in cash or its equivalent, in advance, the entire rent and Landlord's estimate
of all other amounts which will become due and owing hereunder by Tenant for the
balance of the Lease Term (or if such default occurs during any extension term,
the amounts which will be required to be paid will be those attributable to the
balance of the extension term). All such amounts shall be paid by Tenant within
30 days after demand from Landlord. All monies so paid shall be retained by
Landlord, without interest, for the balance of the Lease Term, and shall be
applied by Landlord to all amounts owing hereunder by Tenant as they become due
Of Landlord's estimate of the amounts for which Tenant is responsible hereunder
are inaccurate, when such error is discovered Landlord shall pay to Tenant, or
Tenant shall pay to Landlord, within 30 days after written notice, of the excess
or deficiency, as the case may be, which is required to reconcile the amount on
deposit with Landlord with the actual amount for which Tenant is responsible).
C. Action(s) to recover rent, other amounts, and damages set
forth above may be brought by Landlord, from time to time, at Landlord's
election, and nothing shall be deemed to require Landlord io await the date on
which the Lease Term would have otherwise expired had there been no such default
or termination. Landlord agrees to use reasonable efforts, subject to the
exercise of its reasonable business judgment, to relet the premises to a
qualified tenant(s) should it retake possession pursuant to B.(1) or (2) above,
recognizing, however, that Landlord for its affiliates) is the owner or operator
of other buildings and is not obligated in any way to give any preference to
such reletting over leasing in such other buildings. Each right and remedy
provided in this Lease shall be cumulative and in addition to, and not in lieu
of, every other right or remedy provided in this Lease or now or hereafter
existing by statute or otherwise, including suits for injunctive relief or
specific performance. The exercise by Landlord of any one or more of the fights
or remedies provided in this Lease or now or hereafter existing by statute or
otherwise shall not preclude the simultaneous or later exercise by Landlord of
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any or all other rights or remedies provided in this Lease or now or hereafter
existing by statute or otherwise. If any action is commenced arising out of the
terms and provisions of this Lease, the prevailing party shall be entitled to
recover from the other party all costs and expenses, including without
limitation all reasonable attorneys' fees, incurred in connection with that
action.
D. No failure by Landlord to insist upon the strict performance
of any provision of, or the exercise of any right or remedy upon a breach of
this Lease, and no acceptance of full or partial rent during the continuance of
any such breach, shall constitute a waiver of any such provision. No provision
to be performed or complied with by Tenant and no breach thereof shall be
waived, altered, or modified except by written instrument signed by Landlord. No
waiver of any breach shall affect or after this Lease. Notwithstanding any
termination of this Lease, any provisions which by their nature require
observance or performance by Landlord or Tenant subsequent to such termination
shall continue in force and affect.
E. Nothing contained in this Section 15 shall limit or
prejudice the right of Landlord to liquidated damages in any bankruptcy,
insolvency, receivership, reorganization, or dissolution proceeding in an amount
equal to the maximum allowed by any statute or rule of law governing such
proceeding, whether or not such amount be greater, equal to or less than the
amounts recoverable, either as damages or rent, under any of the preceding
provisions of this Lease. Any such proceeding or action involving bankruptcy,
insolvency, reorganization, arrangement, assignment for the benefit of
creditors, or appointment of a receiver or trustee, as set forth above, shall be
considered an Event of Default only when it shall be taken or brought by or
against the then holder of the leasehold estate under this Lease. Landlord shall
be entitled under the federal bankruptcy law to "adequate assurance" of future
performance of the terms and provisions of this Lease in the event of an
assumption or assignment in bankruptcy, and the parties agree that the term
"adequate assurance" shall include at few the following: (i) The financial
condition and resources of Tenant were a material inducement to Landlord in
entering into this Lease, and to assure that the proposed assignee will have the
resources to pay the rent under this Lease, any proposed assignee must have a
net worth (as defined in accordance with generally accepted accounting
principles consistently applied) at least as great as the net worth of Tenant on
the date this Lease became effective increased by 7%, compounded annually, for
each year from the Lease Commencement Date through the date of the proposed
assignment; (ii) Any proposed assignee of this Lease must assume and agree to be
personally bound by the terms, provisions, and covenants of this Lease.
F. Any rents or other amounts owing hereunder not paid within 5
days after the date they are due or any amounts advanced by Landlord on behalf
of Tenant shall thereafter bear interest at an annual rate of three percentage
points over the prime rate then being charged by First Interstate Bank of
Denver, N.A. to its most creditworthy customers on an unsecured basis for short
term loans (the "PRIME RATE"), or the highest rate permitted by applicable usury
law, whichever is lower, until paid. Further, in the event any rents or other
amounts owing hereunder are not paid within 5 days after written notice,
Landlord will incur additional administrative expenses, the amount of which will
be difficult if not impossible to determine; accordingly, Tenant shall pay to
Landlord an additional one-time late charge for any such late payment in the
amount of 5% of such payment.
G. In the event of any alleged default on the part of Landlord,
Tenant shall give written notice to Landlord in the manner herein set forth and
shall afford Landlord a reasonable opportunity to cure any such default (which
shall not be less than 30 days). Notice to Landlord of any such alleged default
shall be
18
ineffective unless such notice is simultaneously delivered to any holder of a
mortgage and/or deed of trust affecting all or any portion of the Building
("MORTGAGEES"); Tenant agrees to give all Mortgagees, by certified mail, return
receipt requested, a copy of any notice of default served upon Landlord,
provided that prior to such notice Tenant has been notified in writing (by way
of notice of assignment of rents and Leases, or otherwise), of the address of
such Mortgagees. Tenant further agrees that if Landlord shall have failed to
cure such default within the time provided for in this Lease, then the
Mortgagees shall have an additional 30 days within which to cure such default,
or if such default cannot be cured within that time, then such additional time
as may be necessary if, within such 30 days, any Mortgagee has commenced and is
diligently pursuing the remedies necessary to cure such default (including
commencement of foreclosure proceedings if necessary to effect such cure), in
which event this Lease shall not be terminated while such remedies are being
diligently pursued. In no event will Landlord or any Mortgagee be responsible
for any consequential damages incurred by Tenant as a result of any default,
including but not limited to lost profits or interruption of business at a
result of any alleged default by Landlord hereunder.
Section 16. SURRENDER.
---------
A. Upon expiration or other termination of the Lease Term,
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 excepted unless due to the negligence of Tenant, and Tenant shall
remove all of its movable furniture and other effects and such Alterations as
Landlord shall have required Tenant to remove pursuant to Section 8.C. If Tenant
fails to so vacate the Promises, Tenant shall be responsible to Landlord for all
costs incurred by Landlord as a result of such failure, including amounts
required to be paid to third parties who were to have occupied the Premises.
B. All movable furniture and personal effects of Tenant not
removed from the Premises upon their abandonment or upon termination of this
Lease 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
therefor, and Tenant shall pay Landlord all expenses incurred in connection with
the storage and/or disposition of such property.
C. If, after the expiration of this Lease, Tenant shall without
any express written agreement remain in possession of the Premises and continue
to pay rent then such holding-over shall be deemed to be a holding upon a
tenancy from month-to-month, subject to all the terms and conditions hereof on
the part of Tenant to be observed and performed, at a monthly rent equivalent to
150% of the monthly installment paid by Tenant immediately prior to such
expiration or the then current market rental rate, whichever is greater. All
such rent shall be payable in advance on the same day of each calendar month.
Such month-to-month tenancy may be terminated by either party upon 10 days
notice prior to the end of any such monthly period. Nothing contained herein
shall be construed as obligating Landlord to accept any rental tendered by
Tenant after the expiration of the Lease Term or, if so accepted, as relieving
Tenant of its liability and obligations pursuant to this Section.
D. No monetary payments by Tenant to Landlord after the
termination of this Lease or after giving of any notice (other than a demand for
payment of money) by Landlord to Tenant, shall reinstate, continue or extend the
Lease Term or affect any notice given to Tenant before the payment of such
money, it being agreed that after the service of notice, the commencement of
suit, or final judgment granting Landlord possession of the Premises, Landlord
may receive and collect any rent, or any other sums of money due under this
Lease, or otherwise exercise Landlord's rights and
19
remedies, and the payment of such sums, whether as rent or otherwise, shall not
waive the notice or affect any pending suit or judgment obtained.
Section 17. SUBORDINATION AND ATTORNMENT.
----------------------------
A. At Landlord's option, this Lease shall be subordinate to any
present or future mortgage or dead of trust encumbering the Building, including
any amendment, modification, or restatement, and to any and all advances made
under any such mortgage or deed of trust. Tenant agrees that with respect to any
of the foregoing, no documentation, other than this Lease, shall be required to
evidence such subordination.
B. If any holder of such mortgage or deed of trust shall elect
to have this Lease superior to the lien of the holder's mortgage or deed of
trust, and shall give written notice to Tenant, this Lease shall be deemed prior
to such mortgage or deed of trust, whether this Lease is dated prior or
subsequent to the date of such mortgage or deed of trust, or its recording date.
C. In confirmation of such subordination or superior position,
as the case may be, Tenant shall execute such documents as may be required by
Landlord or its mortgagee to evidence the subordination of its interest herein
to any of the documents described above, or to make this Lease prior to the lien
of any mortgage or deed of trust, and failing to do so within 10 days after
written demand, Tenant hereby irrevocably appoints Landlord as Tenant's
attorney-in-fact and in Tenant's name, place and stead, to execute such
documents.
D. Tenant agrees to attorn to all successor owners of the
Building whether or not such ownership is acquired as a result of a sale,
foreclosure, or otherwise.
Section 18. ESTOPPEL. Tenant agrees at any time and from time to time, upon
--------
not less than 10 days prior written request by Landlord, to execute, acknowledge
and deliver to Landlord a statement in writing 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 is 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 information as Landlord may request. It is intended that any such
statement may be relied upon by a 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. Tenant's failure to deliver such statement within such
time shall be conclusive upon Tenant that (i) this Lease is in full force and
effect, without modification except as may be represented by Landlord; (ii)
there are no uncured defaults in Landlord's performance; and (iii) not more that
1 months rent has been paid in advance. Tenant shall also provide such other
information as Landlord may reasonably require from time to time and, upon
request, deliver to Landlord a corporate or partnership resolution, as the case
may be, certifying that the party signing the statement of Tenant is properly
authorized to do so.
20
Section 19. ENVIRONMENTAL.
-------------
A. Attached as EXHIBIT B is a report (the "ENVIRONMENTAL
REPORT") prepared by a consultant reporting on Hazardous Substances (if any) at
the Premises and/or Building. Tenant has reviewed the Environmental Report, has
no objection to it, and accepts the Premises subject to any items noted in the
Environmental Report. Landlord represents and warrants that to its knowledge it
knows of no violation at the Building relating to Hazardous Substances other
than as stated in the Environmental Report.
B. Tenant shall: generate and store Hazardous Substances at the
Premises only in amounts as are incident to and necessary for the normal
operation of Tenant as permitted by this Lease; comply with all obligations
imposed by applicable law, rules, regulations, or requirements regarding such
generation and storage of Hazardous Substances, prohibit any generation,
storage, or disposal of Hazardous Substances at the Premises except as permitted
above; promptly deliver to Landlord complete copies of all notices received by
Tenant from any governmental authority with respect to the generation, storage
or disposal by Tenant of Hazardous Substances; promptly notify Landlord of any
spills or accidents involving a Hazardous Substance; and permit reasonable entry
to the Premises by Landlord for verification of Tenant's compliance with these
provisions. Tenant shall install and maintain a self-contained system for
collecting, retaining and disposing of Hazardous Substances and shall not allow
any Hazardous Substances to enter subsurface soils or to be discharged into any
sanitary or storm sewer system. Tenant agrees to utilize only transporters
approved by the Environmental Protection Agency and State of Colorado to deliver
to and remove Hazardous Substances from the Premises. Tenant shall indemnify and
defend Landlord with legal counsel reasonably acceptable to Landlord) from and
against any costs, fees or expenses including, without limitation, clean-up
expenses, third party claims and environmental impairment expenses, and
reasonable attorneys' fees and expenses) incurred by Landlord in connection with
Tenant's generation, storage or disposal of Hazardous Substances. This
indemnification by Tenant shall survive the termination or expiration of this
Lease.
C. On or before 10 days before the expiration date of the Lease
Term, Tenant shall, at its sole cost and expense, update the Environmental
Report, using the consultant who initially prepared the report or another
licensed consultant reasonably acceptable to Landlord, to determine the
environmental status of the Premises as of the date of that update. To the
extent the update or any inspection by Landlord prior Tenant's delivery of the
Premises to Landlord shows that Tenant has generated, stored or disposed of
Hazardous Substances contrary to the provisions of this Lease, Tenant shall
immediately, at its sole expense, commence and pursue to completion a
remediation program as to such Hazardous Substances and shall, to Landlord's
reasonable satisfaction, bring the Premises into an environmental condition
equal or better than the condition disclosed under the initial Environmental
Report described in A above. If Tenant fails to comply with the provisions of
this Section prior to the expiration or earlier termination of the Lease Term,
or prior to Tenant's vacating the Premises, then Landlord, in addition to
Landlord's right to utilize all or any portion of any security deposit to
satisfy Tenant's obligations hereunder, shall have the option of either
considering this Lease as having ended or treating Tenant as a holdover Tenant
in possession of the Premises, in which event, in addition to complying with all
requirements of this Section and the Lease, Tenant shall pay monthly to Landlord
double the Base Rent and other amounts payable under the Lease which Tenant
would otherwise pay under this Lease until such time as Tenant fulfills its
obligations under this Section, and during such holdover period all of the term
of this Lease and Tenant's obligations hereunder shall remain in full force and
effect.
21
D. "HAZARDOUS SUBSTANCES" shall mean any chemical substance (i)
the presence of which requires investigation or remediation under any federal,
state or local statute, regulation, ordinance, order, action, policy or common
law; (ii) which is or becomes defined as a "hazardous waste", or "hazardous
substance", or "regulated substance" under any federal, state or local statute,
regulation or ordinance or amendments thereto including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act and/or the
Resource Conservation and Recovery Act; (iii) which is toxic, explosive,
corrosive, carcinogenic, mutagenic or otherwise hazardous and is or becomes
regulated by any governmental authority, agency, department, commission, board,
agency or instrumentality of the federal or state government or any political
subdivision thereof, (iv) the presence of which causes or threatens to cause a
nuisance upon the Real Property or to adjacent properties or poses or threatens
to pose a hazard to the health or safety of persons on or about the Real
Property, (v) the presence of which an adjacent properties could constitute a
trespass, (vi) which contains gasoline, diesel fuel or other petroleum
hydrocarbons; or (vii) which contains polychlorinated biphenyls (PCBs), or
asbestos or urea formaldehyde foam insulation.
Section 20. SUBSTITUTED PREMISES.
--------------------
At any time during the Lease Term, Landlord shall have the right
upon 90 days prior written notice to Tenant to substitute other space within the
Building, or within other buildings owned by Landlord or related entities within
the Inverness Business Park if no substitute space is then available in the
Building, for the Premises (the "SUBSTITUTED PREMISES"). Tenant shall relocate
to the Substituted Premises on the date set forth in Landlord's notice (to occur
no sooner than 90 days after receipt by Tenant of the notice) and Landlord
agrees to pay all reasonable moving expenses of Tenant incidental to the
Substituted Premises, including the reasonable replacement of Tenant's
improvements incidental to the Substituted Premises. If Landlord elects to
exercise this right, the Substituted Premises shall be generally comparable
space and contain approximately as much square footage as the originally Leased
Premises and the rental rate shall remain as set forth in Paragraph a on page 1
of this Lease. Except for such revisions, the terms and provisions of the Lease
shall be applicable to the Substituted Premises and the Substituted Premises
shall be deemed to be the Premises under the Lease.
Section 21. AUTHORITIES/NOTICE.
------------------
A. Except as otherwise provided, Landlord may act in any manner
provided for herein through Landlord's Building manager or any other person who
shall from time to time be so designated in writing.
B. All notices, demands, statements or communications 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, postage prepaid,
certified or registered, return receipt requested, addressed to Landlord at the
address on the first page of this Lease, 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 served
when delivered personally to any officer (or a partner of Tenant if Tenant is a
partnership or to Tenant individually if Tenant is a sole proprietor) or manager
of Tenant whose office is in the Building, or when deposited in the United
States mail, postage prepaid, certified or registered, return receipt requested,
addressed to Tenant at the Premises, or, prior to Tenant's taking possession of
the Promises, to the address known to Landlord as
22
Tenant's principal office address. 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 the Colorado Rules of Civil Procedure.
Section 22. RULES AND REGULATIONS.
---------------------
The rules and regulations attached as EXHIBIT D ("RULES AND
REGULATIONS") are hereby made a part of this Lease, and Tenant agrees that
Tenant's employees and agents, or any others permined by Tenant to occupy or
enter. the Premises, will at all times abide by them. Tenant agrees that
Landlord may amend, modify, delete, or add to the Rules and Regulations of the
use and care of the Premises and the Building and Common Areas, and agrees to
comply with all such Rules and Regulations as amended, etc., upon notice to
Tenant from Landlord thereof. If any Rules and Regulations are breached by
Tenant or its employees, Landlord shall have all remedies in this Lease provided
for in the Event of Default by Tenant.
Section 23. LIMITATION OF LANDLORD'S LIABILITY. Notwithstanding anything to
----------------------------------
the contrary contained herein, none of the partners (including any trustees or
beneficiaries of trusts which are partners) of Landlord shall have any
individual or personal liability for the performance or observance of Landlord's
responsibilities and covenants hereunder, Landlord's liability under the Lease
shall be limited to Landlord's interest in the Building and Common Areas.
Section 24. PARKING. Tenant (and its employees) shall be permitted, without a
-------
parking charge except as provided below, to park up to the number of passenger
vehicles determined in accordance with Paragraph G on page 1 of this Lease, on
an unreserved basis, in the common parking areas as designated by Landlord from
time to time for use by occupants of the Building. Tenant agrees to abide by
those parking regulations and rules as may be established by Landlord (which may
include Landlord's designation of reserved spaces and the requirement that
vehicles bear a permanently affixed sticker) and, in the event a surcharge or
regulatory fee may be imposed by any governmental agency with reference to
parking, Tenant shall pay per vehicle, to Landlord in advance (monthly or on
such other basis as may be imposed by the governmental agency) such surcharge or
fee as additional rent under this Lease. Tenant agrees that no vehicles
belonging to, or subject to the control of Tenant or its employees, shall be
"stored" in the parking area (which for this purpose shall mean remaining
stationary for a period of longer than 3 consecutive days).
Section 25. MISCELLANEOUS.
-------------
A. "LANDLORD" as used in this Lease shall 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, the Landlord herein named (and in the
case of any subsequent transfers or conveyances, the then owner of the Building)
shall be automatically released from and after the date of such transfer or
conveyance of all liability for the performance of any covenants or obligations
on the part of Landlord contained in this Lease thereafter to be performed;
provided that any funds held by Landlord or the then owner at the time of such
transfer in which Tenant has an interest shall be turned over or otherwise
credited to the grantee, and any amount then due and payable to Tenant by
Landlord or the then owner under any provisions of this Lease shall be paid to
Tenant.
B. The termination or cancellation of this Lease shall the
option of
23
Landlord, either terminate all subleases and subtenancies operate as an
assignment to Landlord of any or all such subleases or subtenancies.
C. The covenants in this Lease are independent and not
dependent, and Tenant shall not be entitled to any setoff against rent or other
amounts owing hereunder if Landlord fails to perform its obligations set forth
herein; provided, however, the foregoing shall not impair thi 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 any Mortgagee
and an opportunity granted to Landlord and such holder to correct such violation
as provided in Section 15.G. If any provision of this Lease is illegal, invalid,
or unenforceable under present or future laws effective during the Lease Term,
it is the intention of the parties that the remainder of this Lease shall not be
affected and that in lieu of each provision of this Lease that is illegal,
invalid, or unenforceable, there shall be added as a part of this Lease a
provision as similar to such illegal, invalid, or unenforceable provision as may
be possible and be legal, valid, and enforceable.
D. The captions to this Lease are added as a convenience and
have no legal significance.
E. Except as otherwise specifically set forth in this Lease,
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, and assigns. The terms, provisions, conditions, and
covenants hereof shall also be considered to be covenants running with the land
to the fullest extent permitted by law. If more than one entity or person
comprises the Tenant under this Lease, the obligations imposed upon Tenant under
this Lease shall be joint and several.
F. 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 the board of directors or partners, as the case may be, and agree upon
request to deliver to Landlord a resolution or similar document or opinion of
counsel to that effect.
G. Nothing done by Landlord or Landlord's agents during the
term hereof, including without limitation any agreement to accept surrender of
the Premises or to amend or modify this Lease, shall be deemed to be binding on
Landlord unless agreed to by a partner or officer of Landlord, as the case may
be, or a party designated in writing by Landlord as so authorized to act. The
delivery of keys to Landlord or Landlord's agents, 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 and all other amounts owing as herein stipulated shall he deemed to be
other than on account of the earliest stipulated rent or other amounts. No
endorsement or statement on any check or any letter accompanying any check or
payment as rent shall 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.
H. Landlord shall have the right at any time to change the name
of the Building, to increase the size of the Building and/or Common Areas by
adding additional real property thereto, to construct other buildings or
improvements on any portion of the Building and/or Common Areas or to change the
location and/or character of, or to make alterations of or additions to the
Building and/or Common Areas. In the event any such additional buildings are
constructed or Landlord increases the size of the Building and/or Common Areas,
Landlord and Tenant shall execute an amendment to the Lease which incorporates
such modifications, additions and adjustments to Tenant's Pro Rata Share, if
necessary. Tenant shall not use the name and/or xxxx "Inverness,"
24
or other xxxx, name or logo belonging to Landlord or Southeast Venturers, alone
or in conjunction with any words or symbols as a trade name, corporate name,
trade xxxx, service xxxx or in another similar manner, without a prior written
agreement from Southeast Venturers, or its successor-in-interest.
I. Tenant agrees that no diminution of light, air or view by
any structure that may hereafter be erected (whether or not by Landlord) shall
entitle Tenant to any reduction of rent or other charges under this Lease,
result in any liability of Landlord to Tenant, or in any other way affect this
Lease or Tenant's obligations.
J. So long as Tenant complies with the provisions hereof
Landlord agrees to warrant and defend Tenant in the quiet enjoyment and
possession of the Premises during the Lease Term without hindrance by Landlord
or persons lawfully claiming by, through or under Landlord.
K. Whenever the Lease provides for Landlord to consent or
approve any action or documents, it is understood and agreed that such consent
or approval shall be in Landlord's sole and absolute discretion, except where
specifically provided that such consent or approval shall not be unreasonably
withheld.
L. Time is of the essence hereof.
M. Tenant acknowledges and agrees that it has not relied upon
any statements, representations, agreements, or warranties by Landlord, its
agents or employees, except as are specifically stated herein, and no amendment
or modification of this Lease shall be valid or binding unless in writing and
signed by the parties.
N. Tenant shall not record this Lease.
O. Tenant and Landlord hereby waive any and all rights to a
trial by jury in suit or suits brought to enforce any provision of this Lease or
arising out of or concerning the provisions of this Lease. If arbitration of any
disputes is required by law, Landlord and Tenant hereby agree that such disputes
shall be subject to binding arbitration between the parties in accordance with
the commercial arbitration rules of the American Arbitration Association, with
any such controversies being submitted to a panel of three arbitrators selected
from the panels of arbitrators of the American Arbitration Association. However,
the issue of possession shall not be subject to either jury trial or
arbitration.
Section 26. SUBMISSION. Submission of this Lease for examination or signature
----------
by Tenant does not constitute a commitment or option for Lease, and it is not
effective as a Lease or otherwise until execution and delivery by both Landlord
and Tenant.
Section 27. OPTION TO EXTEND. As additional consideration for the covenant's
----------------
of Tenant hereunder, Landlord hereby grants unto Tenant an option the ("Option")
to extend the term of the Lease for one (1) additional term of two years (the
"Option Term"). The Option shall apply to all space then under the Lease at the
time the Option Term would commence, and shall be on the following term and
conditions.
A. Written notice of Tenant's interest in exercising the Option
shall be given to Landlord no earlier then twelve (12) months and no later than
ten (10) months prior to the expiration of the Primary Lease Term ("TENANT'S
NOTICE"). Not later than thirty (30) days after receiving Tenant's Notice,
Landlord shall give to Tenant notice of the terms, conditions and rental rate
applicable during the Option Term, in accordance with subparagraph E below
("LANDLORD'S NOTICE").
25
B. Tenant shall have fifteen (15) days following Tenant's
receipt of Landlord notice of such exercise to Landlord under the terms,
conditions, and rental rate set forth in Landlord's Notice. If Tenant timely
exercises the Option, the Lease shall be deemed extended and thereafter the
parties shall execute amendment to the Lease setting forth the terms of the
extension.
C. Unless Landlord is timely notified by Tenant in accordance
with subparagraphs A and B above, it shall be conclusively deemed that Tenant
does not desire to exercise the Option, and the Lease shall expire in
accordance with its terms, at the end of the Primary Lease Term.
D. Tenant shall not be in default under the Lease at the time
of exercise of the Option or at the time of the commencement of the Option Term.
E. The Option granted hereunder shall be upon the terms and
conditions set forth herein, except that the rental to be paid by Tenant to
Landlord during the Option Term shall be the market rental rate for a comparable
building in the Southeast Denver Metropolitan Area, but in no event shall the
rental rate be less than the rent which Tenant is paying immediately prior to
the commencement of the Option Term. Such terms and conditions may include,
among other things, net rent escalations, passthroughs and other matters then
included in Landlord's standard lease form for the Building which it uses for
the leasing of space to third parties.
26
IN WITNESS WHEREOF, the parties have hereunto set their hands and
seats the day and year first above written.
EIS, INC., INVERNESS ASSOCIATES-373,
a California corporation a Colorado general partnership
By: /s/ XXXXX XXXXXXXXXX By: Invernel Associates Joint Venture,
---------------------------- a Colorado joint venture, as agent
Title: V.P. OPERATIONS
------------------------- By: /s/ XXXXXX X. XXXXXXXXX
-------------------------------
Authorized Signatory
Attest:
By: /s/ XXXX HELD By: Metropolitan Life Insurance
---------------------------- Company, a New York corporation,
its general partner
Title: CONTROLLER
-------------------------
"Tenant" By: /s/ XXXXX XXXX
-------------------------------
Xxxxx Xxxx, Vice President
"Landlord"
EXHIBIT CHECKLIST
-----------------
Exhibit A Floor Plan and Plans and Specifications
Exhibit B Environmental Report
Exhibit C Rules and Regulations
27
EXHIBIT A
EXHIBIT B
#000 Xxxxxxxxx Xxxxx East
5,960 s.f.
Office Area
-----------
1. Split existing offices A & B (see attached) into two offices each (four
total) by adding two new walls and two new doors.
2. Install 9 linear feet of cabinets, VCT flooring, sink with disposal in
room C.
3. Shorten the glass vestibule at the front entry by one panel.
4. Repair the existing exterior concrete steps.
5. Repair and replace ceiling tiles, as needed.
6. Repaint office area.
7. Recarpet with comparable carpet where existing in premises, except
break room.
Warehouse
---------
1. Broom clean, otherwise "as-is".
Bathrooms
---------
1. "As-is". In the event tenant desires, or is required for any reason,
to expand or modify such facilities in any way, all said costs and
improvements shall be Tenant's responsibility.
EXHIBIT C
---------
A. The sidewalks, entries, passages, corridors, stairways, and elevators
of the Building and/or Common Areas shall not be obstructed by Tenant, or
Tenant's agents or employees, or used for any purpose other than ingress and
egress to and from the Premises, it being understood and agreed that such access
may be obtained only via the elevators in the lobby of the Building.
B. Furniture, equipment, or supplies will be moved in or out of the
Building only upon the elevator designated by Landlord and then only during such
hours and in such manner as may be prescribed by Landlord. The Landlord shall
have the right to approve or disapprove the movers or moving company employed by
Tenant, and Tenant shall cause the movers to use only the loading facilities and
elevator designated by Landlord. In the event Tenant's movers damage the
elevator or any part of the Building, Tenant shall forthwith pay to Landlord the
amount required to repair the damage.
C. No safe or article, the weight of which may, in the opinion of
Landlord, constitute a hazard or damage to the Building or the Building's
equipment, shall be moved into the Premises. Safes and other equipment, the
weight of which is not excessive, 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 fight to designate the location of such
articles in the Premises.
D. No sign, advertisement, or notice shall be inscribed, painted or
affixed on any part of the inside or outside of the Building unless of such
color, size and style and in such place upon or in the Building as shall be
first designated by Landlord in writing, but there shall be no obligation or
duty on Landlord to allow any sign, advertisement or notice to be inscribed,
painted or affixed on any part of the inside or outside of the Building. A
directory in a conspicuous place, with names of tenants, not to exceed one name
per 1,000 Rentable Square Feet of space contained in the respective premises,
will be provided by Landlord. Any necessary revision in the directory will be
made by Landlord at Tenant's expense within a reasonable time after notice from
Tenant of the change making the revision necessary. No furniture shall be placed
in front of the Building or in any lobby or corridor of the Building (whether
included wholly within the Premises or otherwise), without the prior written
consent of Landlord. Landlord shall have the right to remove all non-permitted
signs and furniture, without notice to Tenant, at the expense of Tenant.
E. Tenant shall not do or permit anything to be done in the Premises or
bring or keep anything therein which would in any way increase the rate of fire
insurance on the Building or on personal property kept therein, constitute a
nuisance or waste, obstruct or interfere with the fights of other tenants or in
any way injure or annoy them, or conflict with the laws relating to fire or with
any regulations of the fire department, fire insurance underwriters or with any
insurance policy upon the Building or any part thereof, or conflict with any of
the rules or ordinances of the Department of Health of the City and County where
the Building is located.
F. Tenant shall not employ any person or persons other than the janitor
of Landlord for the purpose of cleaning or taking care of the Promises without
the prior written consent of Landlord. Landlord shall be in no way responsible
to Tenant for any loss of property from the Premises, however occurring, or for
any damage done to Tenant's furniture or equipment by the janitor or any of the
janitor's staff, or by any other person or persons whomsoever. The janitor of
the Building may at all times keep a passkey and other agents of Landlord shall
at all times be allowed admittance to the Premises.
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G. Water closets and other water fixtures shall not be used for any
purpose other than that for which they are intended, and any damage resulting to
them from misuse on the part of Tenant or Tenant's agents or employees shall be
paid for by Tenant. No person shall waste water by tying back or wedging the
faucets or in any other manner.
H. No animals shall be allowed in the offices, halls, corridors, and
elevators in the Building. No person shall disturb the tenants of the Building
or adjoining buildings or premises by the use of any radio, sound equipment, or
musical instrument or by the making of loud or improper noises.
I. Bicycles or other vehicles shall not be permitted in the offices,
halls, corridors, and elevators in the Building nor shall any obstruction of
sidewalks or entrances of the Building be permitted.
J. Tenant shall not allow anything to he placed on the outside of the
Building nor shall anything be thrown by Tenant, Tenant's agents or employees
out of the windows or doors, or down the corridors, elevator shafts, or
ventilating ducts of shafts of the Building. Tenant, except in case of fire or
other emergency, shall not open any outside window.
K. No additional lock or locks shall be placed by Tenant on any door in
the Building unless written consent of Landlord shag first have been obtained.
Two keys to the Promises and the toilet rooms, if locked by Landlord, will be
furnished by Landlord, and neither Tenant nor Tenant's agents or employees shall
have any duplicate keys made. Landlord shall supply Tenant with such additional
keys as Tenant may require at Tenant's sole cost and expense. At the termination
of this tenancy, Tenant shall promptly return to Landlord all keys to offices,
toilet rooms or vaults.
L. No window shades, blinds, screens, draperies, or other window
coverings will be attached or detached by Tenant without Landlord's prior
written consent. Tenant agrees to abide by Landlord's rules with respect to
maintaining uniform curtains, draperies, and linings or blinds at all windows
and hallways.
M. If any Tenant desires telegraphic, telephonic, or other electric
connections, Landlord or Landlord's agents will direct the electricians as to
where and how the wires may be introduced. Without such directions, no boring or
cutting for wires will be permitted. Any such installation and connection shall
be made at Tenant's expense.
N. Tenant shall not install or operate any steam or gas engine or boiler,
or carry on any mechanical business in the Premises. The use of oil, gas, or
inflammable 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.
O. Any painting or decorating as may be agreed to be done by and at the
expense of Landlord shall be done during regular weekday working hours, should
Tenant desire such work on Saturdays, Sundays, Legal Holidays, or outside of
regular working hours, Tenant shall pay for the extra cost thereof.
P. 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, Tenant's agents or
employees, shall be paid for by Tenant.
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