LEASE AGREEMENT
BY AND
BETWEEN
(“LESSEE”)
AND
OAKLEY
VENTURES, LLC
(“LESSOR”)
Effective
January 1, 2009
THIS
LEASE AGREEMENT (the “Lease”) dated this 5th day of December 2008, is executed
by and between Oakley Ventures, LLC, a Colorado limited liability company,
hereinafter referred to as “Lessor,” and Eternal Energy Corp., a Nevada
corporation, hereinafter referred to as “Lessee”. This Lease replaces
and supersedes, in its entirety, that certain lease agreement between Lessor and
Lessee for the Demised Premises, dated September 30th, 2006
(the “Old Lease”). Upon execution of this Lease, the Old Lease and
all rights and obligations set forth therein shall be deemed terminated as of
October 31, 2008 and be of no further force or effect.
WITNESSETH:
In
consideration of the payment of the rent hereunder provided and the keeping and
performance of each and every one of the covenants, agreements and conditions of
Lessee hereinafter set forth, Lessor does hereby lease unto the said Lessee the
Demised Premises, defined as follows: that portion of the building located on a
portion of the land described in Schedule A annexed
hereto, situated in the City of Littleton, County of Arapahoe, State of Colorado
(hereinafter referred to as the “Center”). The Demised Premises are
outlined in red on the plot plan annexed hereto as Schedule B, such red
outlined portion of the plot plan also denoted as the number “0000 X. Xxxx Xx.,
Xxxxx 000” subject to the following terms, provisions, covenants, and
agreements.
1. Demised Premises. For
an in consideration for the Base Rent set forth in paragraph 6 and Schedule C hereto and
such other amounts payable by Lessee to Lessor, Lessor does hereby lease and
demise to Lessee and Lessee hereby leases from Lessor, upon the terms and
provisions of this Lease, the Demised Premises as depicted on Schedule B attached
hereto. The parties agree that the Demised Premises contains
approximately Three Thousand Two Hundred Seven (3,207) square feet of rentable
space, which shall be calculated and determined pursuant to the BOMA standard by
a licensed architect. It is understood that the Demised Premises is
located within a building included in the Center known as the Xxxxxx
Building. The use and occupation by Lessee of the Demised
Premises shall include the use, in common with others entitled thereto of the
Common Area of the Center, subject, however, to the terms and conditions of this
Lease.
2. Condition of Demised
Premises and Asbestos Disclosure. The taking of possession of
the Demised Premises shall be deemed an acceptance of the same by Lessee in its
“AS IS” condition without any obligation whatsoever on the part of Lessor to
repair, remodel, reconstruct or modify the Demised Premises for
Lessee.
3. Deleted.
4. Security for Performance of
Lease.
4.1 On
the date of the execution of this Lease, Lessee shall deposit with the Lessor
the sum of Ten Thousand, Six Hundred, Ninety and 00/100 Dollars ($10,690.00) as
security for the full and faithful performance by the Lessee of the terms of
this Lease. Lessor may use, apply or retain the whole or any part of
said security deposit to the extent required for the payment of any rent as to
which the Lessee is in default, or for any sum which the Lessor may expend or
may be required to expend by reason of the Lessee’s default in respect to any of
the terms of this Lease. Subject to paragraph 4.2, any sums so used
or applied by the Lessor from said security deposit shall immediately be repaid
by Lessee to Lessor after notice. Upon termination of this Lease,
Lessor shall return to Lessee the security deposit hereinabove provided for,
less any sums used in accordance with the terms of this Lease or applied upon
any default and not reimbursed. In the event of any sale subject to
this Lease, Lessor shall have the right to transfer the unused portion of the
security deposit to the purchaser for the benefit of Lessee, and Lessor shall be
considered released by Lessee from all liability for the return of such security
deposit provided such purchaser or other transferee has become bound by the
terms and conditions of this Lease.
4.2 Lessor
and Lessee agree that Lessor shall apply $5,345.00 of the security deposit to
the 36th monthly
installment of Base Rent owing pursuant to this Lease. Lessee shall
not be required to repay any amount of the security deposit that is applied to
any monthly installment of Base Rent pursuant to this
paragraph 4.2.
5. Use of Premises.
Lessee (and Lessee’s assignee or sublessee) shall use the Demised Premises
solely for general office use and for no other purpose or use. Lessee
shall not use the Demised Premises in such a way as to cause unreasonable
depreciation and shall neither permit nor suffer any disorderly conduct, noise
or nuisance whatever in or about the Demised Premises. Lessee shall
not use or permit the Demised Premises to be used for any business or purpose
reasonably deemed by Lessor to be extra hazardous, or in any manner as to
constitute a violation of any present or future federal, state, county and
municipal laws, rules, regulations, requirements or orders of any lawful
governmental or public authority relating to the Demised Premises or the Common
Area, including, without limitation, the Americans with Disabilities Act of
1990, the Clean Air Act and regulations thereunder, and laws, rules,
regulations, requirements and orders concerning the environment and toxic or
hazardous substances, materials and waste (all of the foregoing, as amended from
time to time, being herein called the “Regulations”); and Lessee covenants and
agrees at its sole cost and expense to fully and promptly comply with all such
Regulations other than the requirement to make modifications or improvements to
the Center, the Common Area or the Demised Premises to comply with such
Regulations. Failure of Lessee to comply with any provision of this
paragraph 5 shall be deemed an “Event of Default” pursuant to paragraph 25
hereof.
6. Base
Rent. Lessee agrees to pay Lessor as guaranteed base rent
(“Base Rent”) for the Demised Premises during the term of this Lease an amount
equal to One Hundred Eight-Seven Thousand Six Hundred Nine and 50/100 Dollars
($187,609.50), which shall be payable as set forth on Schedule
C. Such payments shall be made to Lessor at the address set
forth hereinafter or at such other address as Lessor may designate in writing
from time to time. In the event that Lessee takes possession of the
Demised Premises on a date other than the first day of the month, then the
guaranteed Base Rent for the first month of the term hereof shall be prorated on
a per diem basis and shall be immediately paid to Lessor.
7. Deleted.
8. Term -
Commencement. The term of this Lease is anticipated to
commence on January 1, 2009. The term of this Lease shall terminate
36 months from and
after the commencement of the term as hereinabove set forth, on December 31,
2011.
9. Lease Year. The first
“Lease Year” shall consist of a twelve (12) month period of time commencing on
the commencement date and ending on the last day of the twelfth (12th) month
following the month in which the commencement date occurs.
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10. Common Area and
Facilities.
10.1 The
term “Common Area” means all areas and facilities furnished, maintained, and
managed by Lessor in, upon or in connection with the Demised Premises and
designated for the general use, in common, of Lessee and other occupants of the
Center, including, but not limited to, parking areas (Including restriping),
streets, sidewalks, roadways, walks (covered or uncovered), curbs, loading
platforms, the Center identity signs, roofs, washrooms, toilets, shelters,
ramps, landscaped areas, the storm drainage system and utility lines, and other
similar facilities (except for those items of maintenance and repair set forth
in paragraph 15 hereof which shall be the sole obligation of
Lessee). The Common Area does not include, among other locations, the
air space located directly under the building herein described as
premises. The areas and facilities comprising the Common Area may be
expanded, contracted, improved or changed by Lessor from time to time as deemed
desirable, and shall at all times be subject to the exclusive control and
management of Lessor, who agrees to operate and maintain the same pursuant to
the terms and provisions of this Lease. Lessor shall have the right
from time to time to change the area, level, location and arrangement of the
Common Area’s parking areas and other facilities above referred to; to restrict
parking by tenants and their employees to employee parking areas, and to make
rules and regulations pertaining to and necessary for the proper operation and
maintenance of the Common Area.
10.2 For
the purpose of this paragraph 10, Lessor’s operating costs for the common Area
(“Common Area Costs”) is defined as including all costs and expenses deemed
necessary or appropriate by Lessor incurred in operating and maintaining the
Common Area, including, without limitation, utilities to operate exterior
lighting and the Center identity signs, installation, purchase or rental and
maintenance of the Center identity signs, landscaping, sanitary control, water
and sewer charges, sewer cleaning, trash removal, snow removal, painting, fire
protection, public liability and property damage insurance, maintenance, repair,
resurfacing and restriping of parking areas, repairs, policing, the cost of
security personnel and equipment, the cost of contesting any tax assessment
which exceeds the amount of tax refund recovered by way of such contest,
management fees, Lessor’s overhead expenses for the administration of the Common
Area, which amount shall not exceed an amount equal to fifteen percent (15%) of
the Common Area Costs, and Lessee’s proportionate share of capital expenditures
incurred by Lessor to increase the operating efficiency of the Center or to
cause the Common Area to comply with applicable Regulations, it being agreed
that the cost of such capital expenditures and installation shall be amortized
over the reasonable life of the capital expenditure, with the reasonable life
and amortization schedule being determined in accordance with generally accepted
accounting principles consistently applied. Notwithstanding anything
herein to the contrary, solely for the purposes of calculating Lessee’s
proportionate share of the Common Area Costs, the sum of (i) Lessor’s management
fees applicable to the Center plus (ii) Lessor’s overhead expenses for the
administration of the Common Area (collectively, the “Lessor’s Fees”) shall not
exceed $18,000 in the aggregate during the initial year, and the Lessor’s Fees
for any successive year shall not increase by an amount exceeding 5% of the
immediately preceding year’s total Lessor’s Fees.
10.3 Lessee
shall pay to Lessor monthly, as additional rent, its proportionate share of the
Common Area Costs. Lessee’s proportionate share of the Common Area Costs shall
be an amount determined by multiplying the total of the Common Area Costs by a
fraction, the numerator of which shall be the number of square feet of rentable
space in the Demised Premises (as established in paragraph 1 hereof) and the
denominator of which shall be the total of the gross leasable square feet in the
Center, as same is designated in good faith by Lessor from time to time (such
fraction shall be referred to herein as the “Lessee’s Proportionate
Share”). At the time of the execution of this Lease, the gross
leaseable square feet of the Center is 13,972, and Lessee’s Proportionate Share
is 22.953%. Solely with respect to the calculation of Lessee’s
Proportionate Share of the Common Area Costs, at no time during the term of this
Lease shall the gross leaseable square feet of the Center decrease without the
approval of Lessee.
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10.4 Lessor
shall estimate the cost for operating and maintaining the Common Area annually,
shall notify Lessee of such estimate, and Lessee shall pay its proportionate
share of such estimate in equal monthly installments commencing on the first day
monthly installments of Base Rent are due following such
notification. Within a reasonable time following the end of each
Lease Year, but no later than 180 days after the end of the Lease Year, Lessor
shall notify Lessee in writing of the actual Common Area Costs for the preceding
year. In the event that Lessee has paid more than its proportionate
share of the Common Area Costs during the preceding year, such excess shall be
credited by Lessor against Lessee’s obligation to pay its proportionate share of
Common Area Costs in the following year, unless this Lease has terminated, in
which event the Lessor shall pay such excess within thirty (30) days of such
determination. In the event Lessee has paid less than its
proportionate share of the Common Area Costs, Lessee shall pay such deficiency
to Lessor within thirty (30) days of receipt of the statement for such
deficiency. Failure by Lessor to notify Lessee of the actual Common
Area Costs for the preceding year within a reasonable time shall not be deemed a
waiver by Lessor of its right to adjust such costs and collect any deficiency
from Lessee.
10.5 Lessor
and Lessee acknowledge that actual costs for the Common Area expenses, Taxes as
set forth in paragraph 12, and insurance as set forth in paragraph 13 have yet
to be determined and that Four Dollars and Fifty Cents ($4.72) are the estimated
expenses on a Per Square Foot Basis. Lessee shall pay this amount
calculated at One Thousand, Two Hundred, Sixty One and 42/100 Dollars
($1,261.42) per month beginning at Lease commencement. See Schedule D for
itemization of estimated expenses.
10.6 As
soon as practical following written notice from Lessee to Lessor, Lessor shall
provide to Lessee copies of Lessor’s workpapers or other supporting
documentation provided to Lessor’s tax accountants for preparation of Lessor’s
tax returns as such relates to the calculation of Common Area Costs, Taxes and
insurance for the purposes of verifying the calculated amounts. In
the event Lessee’s examination reveals that an error has been made in Lessor’s
determination of Lessee’s Proportionate Share of such expenses, then the amount
of such adjustment shall be payable by Lessor or Lessee, to the other party, as
the case may be, within thirty (30) days of such conclusive
determination.
11. Parking.
11.1 In
addition to the Demised Premises leased hereunder, Lessee shall have the right
of non-exclusive use, in common with others, of automobile parking areas,
driveways and footways, and of such loading facilities and other facilities as
may be designated from time to time by Lessor.
11.2 Lessor
shall have the right from time to time to establish reasonable rules and
regulations for the use of the areas designated in subparagraph 11.1 above;
provided, however, that any such rules and regulations shall be uniformly
applied to all tenants in the Center.
11.3 In
the event that Lessor shall designate certain parking spaces for Lessee’s
employees, and for employees of all other tenants in the Center, Lessee shall
provide to or cause to be provided to Lessor the license plate numbers of such
employees of Lessee who have been designated to use such employee parking
spaces.
11.4 Subject
to the foregoing and this subparagraph 11.4, Lessee shall be entitled to five
(5) reserved parking spaces at no additional cost. Lessor shall
select all reserved parking spaces, and at Lessee’s cost, Lessor shall install
signage indicating that such spaces are reserved for
Lessee. Following the end of the term of this Lease, Lessor shall
have the right to remove the signage designating such parking spaces at Lessee’s
cost.
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12. Taxes.
12.1 Commencing
with the tax xxxx for the Lease Year in which the Lessee’s tenancy begins,
Lessee agrees to pay to Lessor each year, as additional rent, Lessee’s
proportionate share of the real estate taxes and special assessments as may be
levied on the Center and paid by Lessor, or any tax incurred due to the
ownership or operation of the Center (including any special assessments created
by the formation of a special improvement district or created in any manner, but
not including income taxes), and levies and assessments made upon or as a result
of personal property owned by Lessor and used in the operation of the
Center.
12.2 Lessee’s
proportionate share of such taxes for any such calendar year shall be an amount
equal to the product obtained by multiplying the total amount of such taxes by
the Lessee’s Proportionate Share. In the event that the term hereby
demised does not commence on the first (1st) day of January, then Lessee’s share
of the taxes for the Lease Years in which the term commences and terminates
shall be further apportioned on a per diem basis in such proportion as the
number of days in such Lease Years bears to three hundred sixty-five (365)
days.
12.3 In
order to facilitate the collection of taxes called for hereunder, Lessee shall
deposit with Lessor on the day monthly installments of Base Rent are due
hereunder an amount equal to one-twelfth (1/12) of the taxes and levies due from
Lessee to Lessor hereunder during each month of the term hereby demised or any
extension thereof. Lessee’s monthly deposit of taxes, levies and
assessments shall be based upon the good faith estimates made by Lessor of
projected taxes due for the subject Lease Year, which estimates may be adjusted
by Lessor from time to time. Within a reasonable time following the end of each
Lease Year (or if such taxes, levies and assessments are billed on other than a
calendar-year basis, then within a reasonable period of time following the date
on which Lessor receives notice of the actual taxes, levies and assessments),
Lessor shall notify Lessee in writing of the actual taxes, levies and
assessments for the preceding Lease Year (or other payment
period). If Lessee has paid more than its proportionate share of such
taxes, levies and assessments, such excess shall be credited by Lessor against
Lessee’s obligation to pay its proportionate share of such taxes, levies and
assessments in the following Lease Year, unless this Lease has terminated, in
which event the Lessor shall pay such excess within thirty (30) days of such
determination. If Lessee has paid less than its proportionate share
of such taxes, levies and assessments, Lessee shall pay such deficiency to
Lessor within thirty (30) days of receipt of the statement of such
deficiency. Failure by Lessor to notify Lessee of the actual taxes,
levies and assessments for the preceding Lease Year (or other payment period)
within a reasonable time shall not be deemed to be a waiver by Lessor of its
right to adjust such costs and collect any deficiency from
Lessee. The taxes for the current year are included in the amount of
the estimate of common area costs, taxes and insurance as set forth in paragraph
10.5.
12.4 If,
because of any change in the taxation of real estate, any other tax or
assessment (including, without limitation, any occupancy, gross receipts, or
rental tax) is imposed upon Lessor or the owner of the land and/or buildings, or
upon or with respect to the land and/or building or the occupancy, rents or
income therefrom, in lieu of, or in the substitution for, or in addition to, any
of the foregoing taxes, such other tax or assessment shall be deemed part of the
taxes.
13. Insurance.
13.1 In
addition to Lessee’s obligation to pay its proportionate share of the cost of
insurance carried by Lessor for the Center (the initial estimated cost of which
is set forth in paragraph 10.5), including but not limited to, fire and extended
coverage, casualty insurance and public liability insurance, Lessee shall pay
all premiums due in connection with insurance required to be carried by Lessee
under the terms of this Lease and shall furnish Lessor with copies of
certificates evidencing the payment thereof. All such policies shall be written
with companies rated A+ in Best’s Insurance Guide and authorized to do business
in the state in which the Demised Premises are located. Lessor shall
not unreasonably withhold consent to the placement of insurance with companies
proposed by Lessee.
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13.2 Lessee
shall procure and maintain throughout the term of this Lease a policy or
policies of insurance, at its sole cost and expense, causing Lessee’s fixtures
and contents to be insured under standard fire and extended coverage insurance
and, with regard to liability insurance, insuring both Lessor and Lessee against
all claims, demands or actions arising out of or in connection with Lessee’s use
or occupancy of the Demised Premises, or by the condition of the Demised
Premises. The limits of Lessee’s liability policy or policies shall
be in an amount not less than $2,000,000 per occurrence (and no offset for
occurrences on property other than the Demised Premises), and shall be written
by insurance companies satisfactory to Lessor, Lessee shall obtain a written
obligation on the part of each insurance company to notify Lessor at least
twenty (20) days prior to cancellation of such insurance. Such
policies or duly executed certificates of insurance shall be promptly delivered
to Lessor and renewals thereof as required shall be delivered to Lessor at least
thirty (30) days prior to the expiration of the respective policy terms, if
Lessee should fail to comply with the foregoing requirement relating to
insurance, Lessor may obtain such insurance and Lessee shall pay to Lessor on
demand as additional rental here under the premium cost thereof plus interest at
the maximum contractual rate (but in no event to exceed 1-1/2% per month) from
the date of payment by Lessor until repaid by Lessee.
13.3 Lessee
shall maintain, at its sale cost and expense, any other form or forms of
insurance as Lessor or the mortgagees of Lessor may reasonably require from time
to time in form, in amounts and for insurance risks against which a prudent
Lessee would protect itself, and shall deliver to Lessor certificates of all
insurance required by Lessor upon demand of Lessor.
13.4 All
policies of insurance required hereunder shall name Lessor and Lessee as named
insureds and shall provide that the proceeds of such insurance shall be payable
to Lessor and Lessee, as their interests may appear, if required by Lessor, such
policies shall contain a loss payable endorsement in favor of the holder of any
first mortgage or deed of trust on the Center or any portion
thereof.
13.5 Lessee
shall pay to Lessor, as additional rent, any increase in premiums of insurance
carried by Lessor pursuant to paragraph 10 hereof if, in the reasonable
determination of Lessor, such increase is directly related or caused by Lessee’s
use of the Demised Premises.
13.6 Lessor
and Lessor’s agents and employees shall not be liable to Lessee, nor to Lessee’s
employees, agents or visitors, nor to any other person whomsoever, for any
injury to person or business, or damage to property caused by the Demised
Premises or other portions of the Center becoming out of repair or by defect or
failure of any structural element of the Demised Premises or of any equipment,
pipes or wiring, or broken glass, or by the backing up of drains, or by gas,
water, stream, electricity, or oil leaking, escaping or flowing into the Demised
Premises unless such injury or damage is caused by the gross negligence or
willful misconduct of Lessor, nor shall Lessor be liable to Lessee, nor to
Lessee’s employees, agents or visitors, nor to any other person whomsoever, for
any loss or damage that may be occasioned by or through the acts or omissions of
other tenants of the Center or of any other persons whomsoever, excepting only
duly authorized employees and agents of Lessor. Lessor shall not be
held responsible in any way on account of any construction, repair or
reconstruction (including widening) of any private or public roadways, walkways
or utility lines.
13.7 Lessor
shall not be liable to Lessee or to Lessee’s employees, agents, or visitors, or
to any other person whomsoever, for any injury to person or business, or damage
to property on or about the Demised Premises or the Common Area, caused by the
negligence or misconduct of Lessee, its employees, subtenants, licensees or
concessionaires, or of any other person entering the Center under express or
implied invitation of Lessee (with the exception of customers in the Common
Area), or arising out of the use of the Demised Premises by Lessee and the
conduct of its business therein, or arising out of any breach or default by
Lessee in the performance of its obligations under this Lease; and Lessee hereby
agrees to indemnify Lessor and hold Lessor harmless from any loss, expense or
claims arising out of such damage or injury.
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13.8 Lessor
and Lessee each hereby release the other from any and all liability or
responsibility to the ether, or to any other party claiming through or under
them by way of subrogation or otherwise, for any loss or damage to property
caused by a casualty which is insurable under standard fire and extended
coverage insurance; provided, however, that this mutual waiver shall be
applicable only with respect to a loss or damage occurring during the time when
property insurance policies, which are readily available in the marketplace,
contain a clause or permit an endorsement to the effect that any such release
shall not adversely affect or impair the policy or the right of the insured
party to receive proceeds under the policy; provided, further, that this release
shall not be applicable to the portion of any damage which is not reimbursed by
the damaged party’s insurer because of the “deductible” in the damaged party’s
insurance coverage. The release specified in this paragraph 13.8 is
cumulative with any releases or exculpations, which may be contained in other
provisions of this Lease.
14. Utilities.
14.1 Lessee
shall pay, when due, in addition to any other payments required hereunder, the
costs of all utilities, including, but not limited to, gas, electricity, water
and sewer, used and consumed by Lessee, its employees, agents, servants,
customers and other invitees on the Demised Premises. Lessee, to the
extent possible, shall contract for such utilities in its own name and on
separate meters. Throughout the duration of Lessee’s occupancy of the
Demised Premises, Lessee shall keep such meters and installation equipment in
good working order and repair, ordinary wear and tear excepted, at Lessee’s sole
cost and expense, but in no event in better condition and repair that at the
commencement of this Lease. Lessor warrants to the best of Lessor’s
knowledge that such meters and installation equipment are in good working order
and repair as of the commencement of this Lease. If any of such
utilities cannot be separately metered or determined, Lessee agrees to pay its
share of the costs thereof attributable to the Demised Premises (as reasonably
determined by Lessor from time to time), and Lessee shall pay such determined
amount after written notice from Lessor of Lessee’s share on the dates the next
rent installments is due hereunder.
14.2 Lessor
does not warrant or guarantee the continued availability of any or all of the
utilities. In no event shall the interruption, diminution or cessation of such
utilities be construed as an actual or constructive eviction of Lessee, nor
shall Lessee be entitled to any abatement of its obligations under this Lease on
account thereof. In the event that a deposit is required by a public
or quasi-public body in order to obtain such utilities, Lessee agrees and
covenants to pay such charge or deposit (or its share thereof). Any
money so paid shall not entitle Lessee to an offset or reduction of any
liability of Lessee hereunder; provided, however, Lessor shall release, return
or credit to Lessee any unused portion of such deposits that are under Lessor’s
control.
14.3 Lessor
shall have the right to temporarily interrupt the furnishing of utilities at
such times as may be necessary by reason of accident, repairs, alterations or
improvements, failure of power supply or any other cause whatsoever beyond the
control of Lessor. Lessor shall not be liable in damages or rebate or
charge of any kind whatsoever, and Lessee shall not be entitled to any abatement
or reduction of its rent obligations, if the service of such utilities by Lessor
or by any other supplier or any utility service or other service to the Demised
Premises’ or the Center shall be interrupted or impaired by fire, accident,
riot, strike, acts of God, the making of necessary repairs or improvements or
for any other cause.
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15. Maintenance.
15.1 Unless
occasioned by the misconduct or negligence of Lessee or Lessee’s contractors or
employees, Lessor shall, at its expense, repair the foundation and the exterior
walls (excluding all glass windows, window frames and doors) and roof of the
building of which the Demised Premises are a part; and provided further that
Lessor’s duty to so maintain and repair shall not include repainting of the
exterior of the Demised Premises which shall be included in Common Area Costs as
hereinabove provided. Lessee shall promptly notify Lessor in writing
of any maintenance or repairs necessary pursuant to this paragraph.
15.2 All
other repairs or maintenance to the Demised Premises shall be made by Lessee at
Lessee’s expense, and Lessee agrees to maintain the Demised Premises and all
improvements, fixtures and equipment at any time located upon the Demised
Premises in good repair, including, but not limited to, the surface of the
floors and walls, plumbing, electrical wiring and fittings, sewer pipes, water
pipes and heating pipes, and to keep the interior of the Demised Premises
painted and clean, and to be responsible for all glass, ordinary wear and tear
excepted, but in no event in better condition and repair that at the
commencement of this Lease. In the event it is necessary for Lessee
to make any repairs, alterations, additions or improvements to the Demised
Premises pursuant to this paragraph, Lessor may impose such requirements as
Lessor may reasonably deem necessary, including without limitation thereto, the
manner in which the work is done, a right of approval of the contractor by whom
the work is to be performed, and the times during which it is to be
accomplished. Lessor warrants to the best of Lessor’s knowledge that
the floors, walls, plumbing, electrical wiring and fittings, sewer pipes, water
pipes and heating pipes are in good working order and repair as of the
commencement of this Lease. Lessor shall, at its sole cost and
expense, subject to reimbursements by Lessee outlined in Schedule D,
during the term of this Lease maintain a regularly scheduled preventative
maintenance/service contract with a maintenance contractor for the servicing of
the heating and air conditioning systems and equipment exclusively servicing the
Demised Premises. Should Lessee perform such maintenance, the
maintenance contractor and contract must be approved by Lessor and must include
servicing, replacement of filters, replacement or adjustment suggested by the
equipment manufacturer. Lessor shall keep the sidewalks in front of
the Demised Premises free from ice and snow, litter, debris, dirt and
obstruction and Lessee shall be charged its prorata share of Common Area
Maintenance for such services, initially calculated, but subject to change, as
shown on Schedule
D. All repairs necessitated by the negligence of Lessee or
Lessee’s agents, contractors or employees or by their use of the Demised
Premises shall be repaired by Lessee at Lessee’s expense.
15.3 If
Lessee fails to keep the Demised Premises in such good order and repair as
required hereunder, ordinary wear and tear excepted, to the reasonable
satisfaction of Lessor, Lessor may restore the Demised Premises to such good
order and condition and make such repairs without liability to Lessor, and upon
completion thereof. Lessee shall pay to Lessor, as additional rent,
upon demand, the cost of such restoration and repair, plus an amount equal to
Lessor’s cost of overhead expense attributable to the making of such repairs (as
is reasonably determined by Lessor), which amount shall not exceed ten percent
(10%) of the costs of such repair.
16. Alterations.
16.1 Subsequent
to the execution of this Lease and prior to the commencement hereof, Lessee
shall have the right to come upon, enter, and have access to the Demised
Premises to place and attach, at its expense, to the Demised Premises any
fixtures, furnishings, equipment or facilities reasonably required by it for its
business, including, but not limited to, shelving, partitions, fixtures, floor
and wall coverings, lighting fixtures and other equipment and facilities
desirable for its business, provided such work does not cause irreparable injury
or damage to the Demised Premises, such construction and entry does not
interfere with the operation and occupancy of the Center, and such construction
and finish-out is otherwise satisfactory and acceptable to
Lessor.
8
16.2 Lessor
shall have the right to approve the general contractor or contractors selected
by Lessee, which approval shall not be unreasonably withheld or delayed beyond
ten (10) days after the name of such general contractor or contractors is
submitted by Lessee-to Lessor.
16.3 Other
than as provided in paragraph 16.1, Lessee shall make no alterations, changes,
additions or improvements to the Demised Premises without Lessor’s prior written
consent after receipt of plans and specifications which consent shall not be
unreasonably withheld; provided, however, Lessor shall have the right to require
Lessee to remove all or any part of such alternations, additions or improvements
at the termination or expiration of the Lease term, and Lessee shall be
responsible for restoring the Demised Premises to its original state, ordinary
wear and tear excepted, and repairing any harm or damages caused by the removal
of such alternations, additions or improvements. Notwithstanding
anything herein to the contrary, no such alteration, change, addition or
improvement shall be done so as to lessen or materially and disadvantageously
affect the value of the Demised Premises.
16.4 Lessor
shall not under any circumstances whatsoever be liable for the payment of any
expense incurred or the value of any work done or material furnished to
the Demised Premises by virtue of any construction, alteration, change, addition
or improvement undertaken by Lessee. All such work shall be done in a
good and workmanlike manner and in compliance with the applicable building and
zoning laws, other Regulations, and the terms and conditions of this Lease at
Lessee’s sole cost and expense, and Lessee shall be wholly responsible to all
contractors’, subcontractors, laborers and materialmen
therefor. Lessee shall pay for all the foregoing so that no lien
shall be asserted against the Demised Premises or the Center. Within
five (5) days after notifying Lessor of any planned construction, alteration,
removal, addition, repair or other improvements, Lessee shall post and keep
posted until completion of such work, in a conspicuous place upon the doors
providing entrance to the Demised Premises, and shall personally serve upon such
contractors or subcontractors performing such work, a notice stating that
Lessor’s interest in the Center shall not be subject to any lien for such
work.
16.5 Lessee
shall indemnify and save Lessor harmless from and against any liabilities,
damages or penalties, and any costs, expenses, or claims of any kind or nature
arising out of said construction, alteration, or additions, or otherwise, and
such indemnification shall apply to any damages or injury to person or property
resulting therefrom.
16.6 Except
as provided in paragraph 18 hereof, all alterations made, done and constructed
in, upon or around the Demised Premises by Lessee shall become the property of
Lessor at the termination of this Lease, and shall remain in the Demised
Premises and be surrendered with the Demised Premises.
17. Lien
Protection.
17.1 Lessee
agrees that at no time during the term of this Lease will Lessee permit a lien
or encumbrance of any kind or nature to come into existence against the Demised
Premises, Lessee’s interest therein, or the Center. If at any time a
lien or encumbrance is filed or recorded against the Demised Premises or the
Center as a result of Lessee’s failure to satisfy same, Lessee shall promptly
discharge said lien or encumbrance, and if said lien or encumbrance has not been
removed within thirty (30) days from the date it is filed or recorded against
the Demised Premises, Lessee agrees it will deposit with Lessor an amount in
cash equal to one hundred fifty percent (150%) of the amount of the lien filed
or post a bond reasonably satisfactory to Lessor and shall leave the same on
deposit with Lessor until said lien is discharged.
9
17.2 If
Lessee shall at any time fail, neglect or refuse to satisfy any such lien or encumbrance,
or shall fail, neglect or refuse to secure Lessor as hereinabove provided, then
Lessor shall have the option (but shall not be required to) to satisfy such lien
or encumbrance and any amounts paid therefor by Lessor shall be deemed
additional rent and shall be paid by Lessee to Lessor at the next Base Rent
payment date after any such payment, and shall bear interest at the lesser of
(a) the maximum rate permitted by law, or (b) eighteen percent (18%)per annum
from the respective due dates until paid.
18. Trade and Other
Fixtures.
18.1 Any
and all alterations, changes additions or improvements to the Demised Premises
which are not movable, including, but not limiting the generality of the
foregoing, any and all fixtures, trade fixtures, equipment machinery, lighting
fixtures, cooling equipment, built-ins, wall coverings, floor coverings and
power wiring shall be the property of the Lessor upon any termination of this
Lease.
18.2 Any
movable trade fixtures, equipment, signs, machinery or other personal property
of the Lessee used in or on the Demised Premises shall be the property of the
Lessee upon the termination of this Lease, and Lessee shall have fifteen (15)
days from and after the date of termination to remove the same
from the Demised Premises, provided Lessee is current in all of its obligations
hereunder. If not so removed, any such fixtures and equipment shall
be deemed abandoned and shall be the property of Lessor. Any damage
caused to the Demised Premises by the removal of such items shall be repaired by
Lessee at Lessee’s expense.
19. Signs. Lessee
shall not install any signs, window lettering or other advertisement in, upon or
around the Demised Premises without the prior written approval of Lessor, which
approval shall not be unreasonably withheld. Lessor shall have
absolute but reasonable discretion in approving or disapproving any proposed
sign in order that the plan, scheme and design of the Center be
met. Lessee shall pay for any signs approved by Lessor hereunder,
including, but not limited to, the artwork, application, installation, and
maintenance of any approved sign. Lessee shall pay for the removal of
all signs from the Demised Premises and the cost of the repair of any damage
(including patching and painting) caused by such removal.
20. Deleted.
21. Lessee’s
Covenants. Lessee, in consideration of the leasing of the
Demised Premises, as aforesaid, and in addition to any and all covenants
hereinabove and hereinafter included in this Lease, covenants and agrees as
follows, to-wit:
21.1 To
pay the Base Rent for said Demised Premises and all additional rent and other
amounts called for hereunder promptly when due and payable. It is
understood and agreed that Lessor may assess a late charge with respect to any
monthly installment of Base Rent or additional rent or other payment called for
hereunder which is delinquent ten (10) days or more, such late charge to be in
an amount equal to five percent (5%) of such delinquent installment or
payment.
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21.2 To
permit Lessor or its agents to enter upon the Demised Premises (a) at any
reasonable time for the purpose of inspecting and of making repairs, alterations
or improvements to the Demised Premises or to the Center; (b) at any time in
order to check calibrate, adjust and balance controls and other parts of the
heating, ventilating and climate control equipment; and (c) to exhibit and show
the Demised Premises to prospective tenants of the Center during the final 180
days of the Lease term and or to prospective purchasers of the Center at any
time during normal business hours; and Lessee shall not be entitled to
compensation for any inconvenience, nuisance or discomfort occasioned
thereby.
21.3 To
keep the Demised Premises clean, and in the sanitary condition required by the
applicable health and police Regulations of all local, state and federal
governmental agencies.
21.4 Neither
to permit nor suffer any noise or disturbances whatever, other than those
incident to Lessee’s regular business.
21.5 Neither
to hold nor attempt to hold Lessor liable for any damage or injury, either
proximate or remote, occurring through or caused by any repairs, alterations,
injury or accident to the Demised Premises or to adjacent premises or other
parts of the Center not herein leased, or by reason of the negligence or default
of the tenants or occupants thereof or any other persons, nor liable for any
injury or damage occasioned by defective electric wiring or the breaking or
stoppage of plumbing or sewage upon the Demised Premises or upon adjacent
premises, whether said breaking or stoppage results from freezing or otherwise;
provided, however, such occurrences are not caused by Lessor’s gross negligence
or willful misconduct.
21.6 Neither
to permit nor suffer the Demised Premises or the walls or floors thereof, to be
endangered by overloading. Lessor and Lessee agree to discuss and engineer a
“load plan”, which, if necessary, will be installed by Lessor at the cost of the
Lessee.
21.7 Not
to use the Demised Premises for any purpose which would render the insurance
thereon void or the insurance risk more hazardous, nor to make any alterations
or changes in, upon or about the Demised Premises without first obtaining the
written consent of Lessor therefor.
21.8 To
surrender and deliver up possession of the Demised Premises and any
appurtenances thereto promptly upon the termination of this Lease.
21.9 To
comply with all Regulations and all of the rules and regulations promulgated and
adopted by Lessor regarding the Center, and in particular, if a retail
first-floor tenant, to maintain those business hours specified by Lessor from
time to time.
22. Casualty
Damage. If the Demised Premises or the Center are damaged as a
result of fire or other casualty insurable under standard fire and extended
coverage insurance to such an extent that the cost of restoration, as reasonably
estimated by Lessor, will equal or exceed fifty percent (50%) of the replacement
value of the Demised Premises or the Center, then Lessor shall, not later than
sixty (60) days following the damage, give Lessee notice of Lessor’s election to
terminate this Lease or restore the Demised Premises as hereinafter provided. In
the event of said election to terminate this Lease, this Lease shall be deemed
to terminate on the third (3rd) day after giving of said notice, and Lessee
shall surrender possession of the Demised Premises within a reasonable time
thereafter, not to exceed twenty (20) days, and the rent, and other costs to be
paid by Lessee to Lessor shall be prorated to the date of the
casualty. If the cost of restoration, as reasonably estimated by
Lessor, shall amount to less than fifty percent (50%) of said replacement value
of the Demised Premises or the Center, or if Lessor does not elect to terminate
this Lease as hereinabove provided, (a) Lessor shall restore the Demised
Premises with reasonable diligence until completion, and (b) Lessee shall
rebuild, repair and restore its fixtures, furnishings, signs and
equipment. In the event that the use of the Demised Premises is
affected by such damage, there shall be either an abatement or an equitable
reduction in rent based on the period for which, and the extent to which, the
Demised Premises are not reasonably usable for the purposes for which they are
leased hereunder. Notwithstanding any other provision contained in this Lease to
the contrary, if the holder of any mortgage or deed of trust on the Center
refuses to make proceeds of Lessor’s insurance policy(ies) available for
restoration, Lessor may terminate this Lease by giving written notice to
Lessee.
11
If the
Demised Premises or the Center are damaged as a result of a casualty not insured
against (or if the proceeds of such insurance will not pay for the replacement
or restoration or if the proceeds are not received by Lessor), Lessor shall be
under no obligation to restore, replace or rebuild the Demised Premises, and
this Lease shall be deemed terminated on the thirtieth (30th) day following
notice by Lessor of its election to terminate this Lease.
Notwithstanding anything to the
contrary set forth in this paragraph 22, in the event of any casualty damage
which materially diminishes Lessee’s use of the Demised Premises and which
cannot be repaired within 90 days of such damage, Lessee shall have the right to
terminate this Lease by delivery of written notice to Lessor. In such
event, this Lease shall terminate on the thirtieth (30th) day
following such notice to Lessor.
23. Indemnification. Lessee
shall indemnify and save harmless Lessor, its principals, agents, servants, and
employees from and against any and all claims, suits, actions, demands and
causes of action, not occurring by reason of Lessor’s gross negligence or
willful misconduct, arising from or in connection with the Demised Premises or
the Center during the term hereof, or any holding over period or extension, for
personal injury, loss of life or damaged property sustained in or upon or
resulting from Lessee’s use of the Demised Premises, and from and against all
costs, counsel fees, expenses and liabilities incurred in defending any such
claims, the investigation thereof or the defense of any action or proceeding
brought thereon, and from any judgment, orders, decrees or liens resultant
therefrom and any fines assessments duties or obligations levied or imposed by
any authority by virtue of any Regulations which are imposed as a result of the
use of the Demised Premises.
24. Eminent
Domain.
24.1 If
the Demised Premises or a portion thereof so substantial as to materially and
adversely affect the business of Lessee conducted at the Demised Premises (as
determined by Lessor) shall be taken in eminent domain, or conveyed under threat
of condemnation proceedings, then this Lease shall forthwith terminate and end
upon the taking thereof as if the original term provided in said Lease expired
at the time of such taking; provided that the rent, additional rent and any
other charges hereunder shall be paid to Lessor by Lessee as of the date of such
taking, if only such part or portion of the Demised Premises is taken which
would not materially and adversely affect the business of the Lessee conducted
at the Demised Premises (as determined by Lessor), then Lessor, at Lessor’s
option to be exercised in writing within thirty (30) days after the taking
thereof, may repair, rebuild or restore the Demised Premises, and this Lease
shall continue in full force and effect. If, however, because of such
taking, the Demised Premises should be rendered untenantable or partially
untenantable, then the rent, or a portion thereof, shall xxxxx until the Demised
Premises shall have been restored.
24.2 In
the event that an award is made for the taking of all or a portion of the
Demised Premises or the Center in condemnation proceedings, Lessor shall be
entitled to receive and retain the amounts awarded or paid for such taking or
conveyance; provided, however, that Lessee shall be entitled to receive and
retain such amounts as are specifically awarded to it in such proceedings
because of the taking of its furniture, or fixtures, and its leasehold
improvements which have not become a part of the realty. It is
understood and agreed that any amounts specifically awarded in any such taking
for the damage to the business of Lessee done on the Demised Premises and
awarded to it as a result of interference with the access to the Demised
Premises or for any other damage to said business and trade done at the Demised
Premises shall be the property of Lessee.
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24.3 It
is understood and agreed that in the event of the termination of this Lease, as
provided under this paragraph, Lessee shall have no claim against Lessor for the
value of any unexpired term of this Lease and no right or claim to any part of
the award made on account thereof.
25. Default and Remedies of
Lessor.
25.1 If
anyone or more of the following events (each of which is herein sometimes called
“event of default”) shall happen:
25.1.1 If
default shall be made in the due and punctual payment of any Base Rent,
additional rent, taxes or any other sums required to be paid by Lessee under
this Lease when and as the same shall become due and payable, and such default
has not been cured within ten (10) days of the date same becomes due and
payable;
25.1.2 If
Lessee shall vacate or abandon the Demised Premises;
25.1.3 If
default shall be made by Lessee in the performance of or compliance with any of
the covenants, agreements, terms or conditions contained in this Lease other
than those referred to in the foregoing (subparagraphs 25.1.1. and 25.1.2.) and
Lessee shall fail to remedy the same
within thirty (30) days after Lessor shall have given Lessee written notice
specifying such default;
25.1.4 If
Lessee shall file a voluntary petition in bankruptcy or shall be adjudicated as
bankrupt or insolvent, or shall take the benefit of any relevant legislation
that may be in force for bankrupt or insolvent debtors or shall me any petition
or answer seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief for itself under any pre sent or
future federal, state or other statute, law or regulation, or if any proceedings
shall be taken by Lessee under any relevant Bankruptcy Act in force in any
jurisdiction available to Lessee, or if Lessee shall seek or consent to or
acquiesce in the appointment of any trustee, receiver or liquidator of Lessee or
of all or any substantial part of its properties or of the Demised Premises, or
shall make any general assignment for the benefit of creditors; or
25.1.5 If
a petition shall be filed against Lessee seeking any reorganization.
Arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any present or future federal, state or other statute, law or
regulation and shall remain undismissed for an aggregate of one hundred twenty
(120) days or if any trustee, receiver or liquidator of Lessee or of all or any
substantial part of its properties or of the Demised Premises shall be appointed
without the consent or acquiescence of Lessee and such appointment shall remain
unvacated for an aggregate of one hundred twenty (120) days;
25.2 Then
and in any event covered by subparagraphs 25.1.1, 25.1.2, 25.1.3, 25.1.4, and
25.1.5, Lessor shall have the right, at its election, then or at any time
thereafter, either to:
25.2.1 Institute
suit against Lessee to collect each installment of rent, additional rent or
other sum as it becomes due or to enforce any obligations under this Lease;
or
13
25.2.2 Lessor
may terminate this Lease, effective at such time as may be specified by written
notice to Lessee, and demand (and, if such demand is refused, recover)
possession of the Demised Premises from Lessee. Lessee will remain
liable to Lessor for damages in an amount equal to the Base Rent, and other
additional rent which would have been owing by Lessee for the balance of the
term had this Lease not been terminated, less the net proceeds, if any, of any
reletting of the Demised Premises by Lessor subsequent to such termination,
after deducting all Lessor’s reasonable expenses in connection with such
recovery of possession or reletting. Lessor shall be entitled to
collect and receive such damages from Lessee on the days on which the Base Rent,
and other additional rent would have been payable if this Lease had not been
terminated.
25.2.3 Lessor
may re-enter and take possession of all or any part of the Demised Premises
without additional demand or notice, and repossess the same and expel Lessee and
any party claiming by, through or under Lessee, and remove the effects of both
using such force for such purposes as may be necessary, without being liable for
prosecution for such action or being deemed guilty of any manner of trespass,
and without prejudice to any remedies for arrears of rent or right to bring any
proceeding for breach of covenants or conditions. No such re-entry or
taking possession of the Demised Premises by Lessor will be construed as an
election by Lessor to terminate this Lease unless a written notice of such
intention is given to Lessee. No notice from Lessor or notice given
under a forcible entry and detainer statute or similar laws will constitute an
election by Lessor to terminate this Lease unless such notice specifically so
states. Lessor reserves the right, following any re-entry or
reletting, to exercise its right to terminate this Lease by giving Lessee such
written notice, in which event this Lease will terminate as specified in such
notice. After recovering possession of the Demised Premises, Lessor
may, from time to time, but will not be obligated to, relet all or any part of
the Demised Premises for Lessee’s account, for such term or terms and on such
conditions and other terms as Lessor, in its discretion,
determines. Lessor may make such repairs, alterations or improvements
as Lessor considers appropriate to accomplish such reletting, and Lessee will
reimburse Lessor upon demand for all costs and expenses, including attorneys’
fees, which Lessor may incur in connection with such
reletting. Lessor may collect and receive the rents for such
reletting, but Lessor will in no way be responsible or liable for any failure to
relet the Demised Premises or for any inability to collect any rent due upon
such reletting. Regardless of Lessor’s recovery of possession of the
Demised Premises, Lessee will continue to pay, on the dates specified in this
Lease, the Base Rent, and other additional rent which would be payable if such
repossession had not occurred, less a credit for the net amounts, if any,
actually received by Lessor through any reletting of the Demised
Premises.
25.2.4 Nothing
contained in this Lease will limit or prejudice Lessor’s right to prove and
obtain as liquidated damages in any bankruptcy, insolvency, receivership,
reorganization or dissolution proceeding an amount equal to the maximum
allowable by any laws governing such proceeding in effect at the time when such
damages are to be proved whether or not such amount be greater, equal to or less
than the amounts recoverable, either as damages or rent under this
Lease.
25.2.5 In
addition to Lessor’s rights set forth in subparagraphs 25.2.2 and 25.2,3 above,
if Lessee fails to pay its rents and all other amounts owing hereunder within
the time period set forth herein causing an event of default, more than two (2)
times during any calendar year during the term of this Lease, or any extension
thereof, then upon the occurrence of a third or any subsequent default in the
payment of monies during said calendar year, Lessor, at its sole option, shall
have the right to require that Lessee, as a condition precedent to curing such
default, pay the Lessor, in cash or its equivalent, in advance, the Base Rent
and Lessor’s reasonable estimate of all other amounts which will become due and
owing hereunder by Lessee for a period of six (6) months. All such
amounts shall be paid by Lessee within thirty (30) days after notice from Lessor
demanding the same. All monies so paid shall be retained by Lessor,
without interest, for the balance of the term of this Lease and any extension
thereof, and shall be applied by Lessor to the last due amounts owing hereunder
by Lessee. If, however, Lessor’s estimate of the rent and other
amounts for which Lessee is responsible hereunder are inaccurate, when such
error is discovered, Lessor shall pay to Lessee, or Lessee shall pay to Lessor,
within thirty (30) days after written notice thereof the excess or deficiency,
as the case may be, which is required to reconcile the amount on deposit with
Lessor with the actual amounts for which Lessee is responsible.
14
25.3 No
such re-entry or taking possession by Lessor shall be construed as an election
on Lessor’s part to terminate or surrender this Lease unless a written notice of
such intention is served on Lessee, notwithstanding the service of a Demand For
The Payment Of Rent Or Possession, or the filing of a suit under a forcible
entry and unlawful detainer statute or similar law, and Lessor and Lessee
expressly agree that the service or posting of such Demand will not constitute
an election on the part of the Lessor to terminate this Lease.
25.4 Enumeration
of the foregoing remedies does not exclude any other remedy, but all remedies
are cumulative and shall be in addition to every other remedy now or hereafter
existing at law or in equity, including but not limited to suits for injunctive
relief and specific performance. The exercise or beginning of the
exercise by Lessor of anyone or more of the rights or remedies provided for in
this Lease or now or hereafter existing at law or in equity or by statute or
otherwise shall not preclude the simultaneous or later exercise by Lessor of any
or all other rights or remedies provided for in this Lease or now or hereafter
existing at law or in equity or by statute or otherwise.
25.5 If
any party shall commence any action or proceeding against another party in order
to enforce the provisions hereof, or to recover damages as the result of the
alleged breach of any of the provisions hereof, the prevailing party therein
shall be entitled to recover all reasonable costs incurred in connection
therewith, including, but not limited to, reasonable attorneys'
fees.
25.6 In
the event of any breach by Lessee of any of the agreements, terms, conditions or
covenants contained in this Lease, Lessor, in addition to any and all other
rights herein provided and at Lessor’s option, shall be entitled to enjoin such
breach and shall have the right to invoke any right and remedy allowed at law or
in equity or by statute or otherwise for such breach as though re-entry, summary
proceedings, and other remedies were not provided for in this
Lease.
25.7 All
rent in arrears and all amounts collectible hereunder shall bear interest at the
lesser of (a) the maximum rate permitted by law, or (b) eighteen percent (18%)
per annum from the respective due dates until paid, provided that this shall in
no way limit, lessen or affect any claim for damages by Lessor for any breach or
default by Lessee.
25.8 Notwithstanding
anything to the contrary, Lessor shall comply with Colorado law in the event of
Lessor’s default hereunder.
25.9 Notwithstanding
anything to the contrary, in the event Lessee shall default in the observance or
performance of any non-monetary term, covenant or condition of this Lease on
Lessee's part to be observed or performed, Lessee shall have the right to cure
such default within thirty (30) days after written notice by Lessor to Lessee of
such default, or if such default is of such a nature that it cannot with due
diligence be completely remedied within said period of thirty (30) days and the
continuation of which for the period required for cure will not subject Lessor
to the risk of criminal liability or foreclosure of any mortgage, Lessee shall,
(a) within said thirty (30) day period advise Lessor of Lessee's intention
duly to institute all steps necessary to remedy such situation, (b) duly
institute within said thirty (30) day period, and thereafter diligently and
continuously prosecute to completion all steps necessary to remedy the same and
(c) complete such remedy within such time after the date of the giving of
said notice by Lessor as shall reasonably be necessary.
15
26. Holding
Over.
26.1 If
Lessee remains in possession of the Demised Premises after expiration of the
term hereby demised, such holding over shall be deemed to be a holding over upon
a tenancy from month-to-month at a monthly rental equal to one hundred fifty
percent (150%) of the monthly installment of Base Rent due under the terms of
this Lease for the month next preceding the commencement of the holdover period,
and Lessee shall remain liable for all other payments provided for hereunder,
including, but not limited to, taxes. insurance, maintenance and Common Area
Costs, and such holding over shall be subject to all of the other terms and
conditions of this Lease.
26.2 In
the event Lessor relets the Demised Premises to a new tenant and the term of
such new lease commences during the period for which Lessee holds over, then
such holding over shall be deemed a breach of Lessee’s covenant to deliver up
the Demised Premises upon the termination or expiration of the term of this
Lease, and Lessor shall be entitled to recover from Lessee any and all costs,
expenses, reasonable attorneys’ fees, damages, loss of profits or any other
costs resulting from Lessee’s failure to deliver possession of the Demised
Premises to the new tenant.
27. Subordination and Estoppel
Certificates. This Lease is subject and subordinate to all
mortgages and deeds of trust which now or hereafter may affect the Demised
Premises or the Center, and Lessee shall execute and deliver upon demand of
Lessor any and all instruments subordinating this Lease, in the manner requested
by Lessor, to any new or existing mortgage or deed of trust. Further,
Lessee shall at any time and from time to time, upon not less than ten (10)
days’ prior written notice from Lessor, execute, acknowledge and deliver to
Lessor a statement in writing, certifying that this Lease is unmodified and in
full force and effect (or, if modified, stating the nature of such modification
and certifying that this Lease as so modified is in full force and effect) and
the dates to which Base Rent, additional rent and other charges are paid in
advance, if any, and acknowledging that there are not, to Lessee’s knowledge,
any uncured defaults on the part of the Lessor hereunder, or specifying such
defaults, if any are claimed. If Lessee falls to provide any such
estoppel within the required ten-day period, Lessee shall be deemed to have
represented that this Lease is in full force and effect and that Lessor is not
in default hereunder.
28. Transfer of Lessor -
Attornment.
28.1 Nothing
in this Lease shall restrict the right of Lessor to sell, convey, assign or
otherwise deal with the Center and/or the Demised Premises.
28.2 A
sale, conveyance, or assignment of the Center shall operate to release Lessor
from liability hereunder from and after the effective date of such sale,
conveyance, or assignment, and thereafter Lessee shall look solely to Lessor’s
successor in interest in and to this Lease provided such transferee has become
bound by the terms and conditions of this Lease. This Lease shall not
be affected by any such sale, conveyance, or assignment and Lessee shall attorn
to Lessor’s successor in interest thereunder. Any funds in which
Lessee has an interest in the hands of Lessor or the then grantor at the time of
such transfer shall be turned over to the grantee.
16
28.3 If
the interest of Lessor is transferred to any person, firm, conveyance or
corporation by reason of foreclosure or other proceedings for enforcement of any
mortgage or deed of trust, by delivery of a deed in lieu of such foreclosure or
other proceedings, Lessee shall immediately and automatically attorn to such
person, firm, company or corporation provided such transferee has become bound
by the terms and conditions of this Lease.
29. Deleted.
30. Quiet Enjoyment.
Lessee, upon paying Base Rent, additional rent and other amounts payable
hereunder, and performing the covenants and agreements of this Lease, shall
quietly have, hold and enjoy possession of the Demised Premises and all rights
granted Lessee in this Lease during the term hereof.
30.1 Notwithstanding,
the terms and provisions contained in Paragraph 27 of this Lease concerning
Subordination and for so long as Lessee is not in default of it’s duties and
obligations as set forth in this Lease, Lessee shall have the right of peaceful
possession and quiet enjoyment of the Demised Premises even though the title and
interest of Lessor in the Demised Premises may be transferred voluntarily or
involuntary to a lender holding an instrument of indebtedness secured by a deed
of trust encumbering the parcel of real property which contains the Demised
Premises by virtue of either (a) the completion of a foreclosure proceeding
initiated under such deed of trust or (b) the delivery by Lessor of a deed in
lieu of a foreclosure to such lender in connection with such deed of
trust.
31. Assignment and
Subletting.
31.1 Lessee
may not sublet the Demised Premises or any part thereof and may not assign any
of its right or interest in this Lease without the express written consent of
Lessor which consent shall not be unreasonably withheld or delayed; provided,
however, Lessee shall deliver to Lessor the documents relating to the assignment
or sublease setting forth the terms of same the effective date thereof and
identifying the proposed assignee or sublessee upon any assignment or subletting
hereof. Such documents shall include, but shall not be limited to,
current and complete financial information for the proposed assignee or
sublessee and any guarantor. Even though consented to by Lessor,
Lessee shall remain liable for the payment of Base Rent and additional rent
provided for herein and for the performance of the agreements, terms, conditions
and covenants of this Lease undertaken to be kept and performed by Lessee, and
the assignee of this Lease where permitted shall assume and undertake to keep,
observe and perform all the agreements, terms conditions and covenants of this
Lease. For the purposes of this provision, transfer of controlling
interest in Lessee by the present holders thereof shall be deemed to be an
assignment hereunder. In no event shall Lessor’s refusal to approve
an assignment or subletting be deemed unreasonable if (i) the proposed use of
the Demised Premises by the proposed assignee or sublessee is not identical to
the use set forth in paragraph 5 of this Lease, (ii) the proposed assignee or
sublessee’s financial net worth and the financial net worth of any guarantor is
not acceptable to Lessor in its reasonable, good faith discretion, and (iii)
such proposed assignee or sublessee is unwilling to enter into and provide to
Lessor a guaranty of this Lease in a form acceptable to Lessor whether or not
Lessee has provided a guaranty of this Lease. Upon any request for
Lessor’s consent to a proposed assignment or subletting, Lessor shall have the
option, to be exercised by giving written notice to Lessee within fifteen (15)
days after receipt by Lessor of the documents concerning such assignment or
subletting required by this subparagraph 31.1, to terminate this Lease as to the
portion of the Demised Premises for which Lessee proposes an assignment or
subletting, effective as of the date Lessee proposes the assignment to take
place. Upon termination of this Lease as to such portion of the
Demised Premises, Base Rent and Lessee’s share of Common Area Costs and taxes
shall be reduced in proportion to the reduction of rentable area of the Demised
Premises. Upon termination of this Lease as to all or any portion of
the Demised Premises, any option to extend the term of this Lease with respect
to such portion of the Demised Premises shall also terminate, whether or not
such options have been exercised. Non-exercise by Lessor of its
rights under this subparagraph 31.1 shall not limit any of Lessor’s other rights
and alternatives under this paragraph 31. Nothing set forth herein
shall prevent or prohibit Lessee from entering into an informal “office sharing”
arrangement with professional individuals that are in the same or substantially
similar or complimentary business as Lessee without the prior written consent of
Lessor; provided, however: (i) such professionals shall at all times
comply with all provisions of this Lease; (ii) any such arrangement shall not
affect, diminish, modify or otherwise eliminate Lessee’s liability or
obligations under this Lease; and (iii) any such arrangement shall not affect,
increase, or otherwise modify Lessor’s obligations under this
Lease. Lessee shall provide written notice to Lessor within fifteen
(15) days of entering into any such office sharing arrangement.
17
31.2 Any
such assignment or subletting by Lessee without the written consent of Lessor
being first obtained, shall be voidable at the option of Lessor, who may, upon
such breach, immediately re-enter and take possession of the entire Demised
Premises, or any part thereof, without giving any notice. Any such
unauthorized assignment or subletting by Lessee shall cause this Lease, at
Lessor’s option, to terminate. In case of any assignment, attempted
assignment, subletting or attempted subletting by Lessee without Lessor’s
written consent thereto, Lessor may without notice, prevent the ingress of
persons claiming under such unauthorized assignment or sublease.
31.3 Notwithstanding
anything to the contrary herein contained, Lessee agrees that Lessor may attach
as a condition to Lessor’s written approval of any assignment or sublease by
Lessee that Lessor shall be entitled to the receipt of any profit derived by
Lessee as a result of such assignment and/or sublease. Such profit
shall include any amounts received by Lessee from its assignee or sublessee in
excess of the Base Rent and additional rent required to be paid by Lessee
hereunder. Lessee shall deliver all documents relating to any such
assignment and subletting to Lessor upon Lessor’s demand.
31.4 Notwithstanding
anything to the contrary contained herein, Lessee hereby requests and Lessor
hereby consents to the sublease of a portion of the Demised Premises to Lessee’s
affiliates, including but not limited to Rover Resources, Inc. and Roadrunner
Oil & Gas, Inc. and/or their subsidiaries.
32. Deleted.
33. Lien on Personalty and
Forfeiture of Personalty.
33.1 Subject
to any purchase money security interest on such items, Lessee hereby grants to
Lessor a security interest and express contractual lien upon any and all goods,
wares, inventory, furniture, fixtures and equipment belonging to the Lessee and
used at, in or upon the Demised Premises, whether acquired by the Lessee before
or after execution of this Lease to secure the due payment of all Base Rent,
additional rent and other liabilities of the Lessee hereunder. Upon
failure of the Lessee to pay any part of such Base Rent, additional rent or
other liability and after due notice as required by paragraph 25 hereof, Lessor
without further notice or demand may possess and sell such property at public or
private sale (and Lessor may be a purchaser at such sale) and otherwise avail
itself of all rights and remedies then available under the Uniform Commercial
Code as enacted in the state in which the Demised Premises are
located. To accomplish the foregoing, Lessee agrees, at the request
of Lessor, to execute a security agreement and financing
statement. Notwithstanding anything to the contrary, Lessor shall
comply with Colorado law in enforcing the rights granted to Lessor
herein.
18
33.2 Additionally
or as an alternative, as the case may be, Lessee agrees that within fifteen (15)
days of written demand by Lessor following or in conjunction with termination of
this Lease or repossession of the Demised Premises by Lessor without
termination, by reason of or otherwise, Lessee shall remove all personal
property for which it has the right to ownership. Any and all such
property of Lessee not removed within said fifteen (15) day period shall
irrevocably become the sole property of Lessor. Lessee waives all
rights to notice and all common law and statutory claims and causes of action
which it may have against Lessor subsequent to said fifteen (15) day period as
regards the storage, destruction, damage, loss of use and ownership of the
personal property affected by the terms of this paragraph 33. Lessee
acknowledges Lessor’s need to relet the Demised Premises upon termination of
this Lease or repossession of the Demised Premises and understands that the
forfeitures and waivers provided herein are necessary to aid said
reletting. Notwithstanding anything to the contrary, Lessor shall
comply with Colorado law in enforcing the rights granted to Lessor
herein.
34. Waiver. No
waiver of any breach of anyone of the agreements, terms, conditions or covenants
of this Lease by Lessor or Lessee shall be deemed to imply or constitute a
waiver of any other agreement, term, condition or covenant of this Lease, The
failure of either party to insist on strict performance of any agreement, term,
condition or covenant, herein set forth, shall not constitute or be construed as
a waiver of the rights of either or of the other thereafter to enforce any other
default of such agreement, term, condition or covenant; neither shall such
failure to insist upon strict performance be deemed sufficient grounds to enable
either party hereto to forego or subvert or otherwise disregard any other
agreement, term, condition or covenant of this Lease.
35. Notices. Any
notices required or permitted hereunder or which any party elects to give shall
be in writing and delivered either personally to the other party and the other
party’s authorized agent (s) set forth below (or as changed by written notice),
or by depositing such notice in the United States Certified Mail, Return Receipt
Requested, postage fully prepaid, to the person(s) at the addresses) set forth
below, or to such other addresses) as either party may later designate in
writing:
Lessor: Oakley
Ventures, LLC
c/o
Highline Realty Partners, Inc.
0000 X.
Xxxx Xxxx
Xxxxxxxxx
Xxxxxxx, XX 00000
Lessee: Eternal
Energy Corp.
Attention: Xxxx
Xxxxx
0000 X.
Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx,
XX, 00000
Any
notice given by mall as herein provided shall be deemed given three days after
being deposited in the United States mail.
36. Successors. All
of the agreements, terms, conditions and covenants set forth in this Lease shall
inure to the benefit of and be binding upon the heirs, legal representatives,
successors, executors and assigns of the parties, except that no assignment or
subletting by Lessee in violation of the provisions of this Lease shall vest any
rights in the assignee or in the sublessee.
37. Entire
Agreement. This Lease constitutes the entire agreement of the
parties hereto. No representations, promises, terms, conditions,
obligations or warranties whatsoever referring to the subject matters hereof,
other than those expressly set forth herein, shall be of any binding legal force
or effect whatsoever. No modification, change or alteration of this
Lease shall be of any legal force or affect whatsoever unless in writing, signed
by all parties hereto.
19
38. Lessor’s Right to Cure
Lessee’s Default. If Lessee shall default in the performance
of any covenant contained herein to be performed on Lessee’s part, Lessor may,
after fifteen (15) days’ notice to Lessee, or without notice if in Lessor’s
judgment an emergency exists, perform the same for the account and at the
expense of Lessee, if Lessor shall incur any expense, including reasonable
attorneys’ fees, in instituting, prosecuting, or defending any action of Lessee,
Lessee shall reimburse Lessor for the amount of such expense with interest at
the lesser of (a) the maximum permitted by law, or (b) eighteen percent (18%)
per annum from the respective due dates until paid, provided that this shall in
no way limit, lessen or affect any claim for damages by Lessor for any breach of
default by Lessee. Should Lessee become obligated to reimburse or
otherwise pay Lessor one or more sums of money pursuant to this paragraph 38,
the amount thereof shall be paid by Lessee to Lessor within two (2) days of
Lessor’s written demand therefor, and if Lessee fails to make such payment, such
failure shall be deemed an event of default as-set forth in paragraph 25
hereof. The provisions hereof shall survive the termination of this
Lease. The provisions hereof shall neither impose a duty on Lessor
nor excuse any failure on Lessee’s part to perform or observe any covenant or
condition in this Lease contained on Lessee’s part to be performed or
observed.
39. Enforcement of Lease -
Attorneys’ Fees. In the event that either Lessor or Lessee
commences an action for the enforcement of or arising out of a breach of the
terms of this Lease, then the party who is awarded judgment
in such action, shall be awarded, in addition to any other award made therein,
an amount to be fixed by the court for court costs and reasonable attorneys’
fees.
40. Counterparts. This
Lease may be executed in several counterparts and each such counterpart shall be
deemed an original.
41. No Construction Against
Drafter. Lessor and Lessee represent that each has been
represented by counsel and that each has participated in the negotiation of this
Lease and no rule of construction against the drafter shall apply.
42. Covenant Against
Recordation. Lessee shall not record for public record this Lease
Agreement or any part thereof without the prior written consent of
Lessor.
43. Deleted.
44. Deleted.
45. Miscellaneous.
45.1 Enlarging
the Center. Lessee acknowledges that Lessor hereby reserves the right
from time to time to enlarge the Center by expanding existing buildings and/or
constructing other buildings, with or without any new common areas, and by
including within the Center other properties how or hereafter owned by Lessor
adjacent to the Center, and constructing on such additional property buildings
and common areas. In any such event, the new buildings properties
and/or common areas shall be treated as though they were originally a part of
the Center and at the election of Lessor all common expenses, utility costs,
real property taxes and all other pro rata payments herein required of Lessee
shall be applicable to such enlarged area and all improvements now or hereafter
thereon; provided that in such event Lessee’s pro rata share shall be
proportionately adjusted to include any additional square footage of rentable
space contained in such new buildings added to the Center.
45.2 Time
of the Essence. Time is of the essence hereof, and each party shall
perform its obligations and conditions hereunder within the time hereby
required.
20
45.3 Provisions
Negotiated and Independent. Each and every provision of this Lease
has been independently, separately and freely negotiated by the
parties. The parties, therefore, waive any statutory or common law
presumption, which would serve to have this document construed in favor of, or
against, either party.
45.4 Unenforceability. If
any clause or provision of this Lease is illegal, invalid or unenforceable under
present or future laws effective during the term of this Lease, then and in that
event it is the intention of the parties hereto that the remainder of this Lease
shall not be affected thereby, and it is also the intention of the parties to
this Lease that in lieu of each clause or provision of this Lease that is
illegal, invalid or unenforceable, there be added as part of this Lease a clause
or provision as similar in terms to such illegal, invalid or unenforceable
clause or provision as may be possible and be legal, valid and
enforceable.
45.5 Limitation
of Lessor Liability. In no event shall Lessor be liable to Lessee for
the failure of any other tenant in the Center to operate its
business. Notwithstanding anything to the contrary provided in this
Lease, it is specifically understood and agreed, such agreement being a primary
consideration for the execution of this Lease by Lessor, that there shall be
absolutely no personal liability on the part of Lessor, or any of the partners
of the Lessor, or any owners of an interest in Lessor’s business, their
successors, assigns, legally appointed representatives, or any mortgagee in
possession (for the purpose of this paragraph collectively referred to as
“Lessor”) with respect to any of the terms, covenants and conditions of this
Lease, and that Lessee shall look solely to the equity of Lessor in the Center
of which the Demised Premises are a part for the satisfaction of each and every
remedy of Lessee
in the event of any breach by Lessor of any of the terms, covenants and
conditions of this Lease to be performed by Lessor, such exculpation of
liability to be absolute and without any exception whatsoever.
45.6 Brokerage
Commissions. Lessee hereby represents and warrants that it has had no
dealings, negotiations or consultations with any broker, representative,
employee, agent or other intermediary except Xxxxxxxxx Commercial and agrees to
indemnify and hold Lessor harmless from and against the claims of any such other
broker(s), representative(s), employee(s), agent(s) or other intermediary(ies)
claiming through or under Lessee in connection with this Lease or the Demised
Premises.
45.7 Hazardous
Substances.
(a) Reportable
Uses Require Consent. The term Hazardous Substance as used in this
Lease shall mean any product, substance, chemical, material or waste whose
presence, nature, quantity and/or intensity of existence, use, manufacture,
disposal, transportation, spill, release or effect, either by itself or in
combination with other materials expected to be on the Premises, is either: (i)
potentially injurious to the public health, safety or welfare, the environment
or the Premises, (ii) regulated or monitored by any governmental authority, or
(iii) a basis for liability of Lessor to any governmental agency or third party
under any applicable statute or common law theory. Hazardous
Substance shall include, but not be limited to, asbestos and asbestos containing
materials, hydrocarbons, petroleum, gasoline, crude oil or any products,
byproducts, or fractions thereof. Lessee shall not engage in any
activity in, on or about the Premises which constitutes a Reportable Use (as
hereinafter defined) of Hazardous Substances without the express prior written
consent of Lessor and compliance in a timely manner (at Lessee’s sale cost and
expense) with all applicable Law (as defined in Paragraph
6.3). “Reportable Use” shall mean (i) the installation or use of any
above or below ground storage tank, (ii) the generation, possession, storage,
use, transportation, or disposal of a Hazardous Substance that requires a permit
form, or with respect to which a report, notice, registration or business plan
is required to be filed with, any governmental authority. Reportable
Use shall also include Lessee’s being responsible for the presence in, on or
about the Premises of a Hazardous Substance with respect to which any Applicable
Law requires that a notice be given to persons entering or occupying the
Premises or neighboring properties. Notwithstanding the foregoing,
Lessee may, without Lessor’s prior consent, but in compliance with all
applicable law, use any ordinary and customary materials reasonably required to
be used by Lessee in the normal course of Lessee’s business permitted on the
Premises, so long as such use is not a Reportable Use and does not expose the
Premises or neighboring properties to any meaningful risk of contamination or
damage or expose Lessor to any liability therefor. In addition,
Lessor may (but without any obligation to do so) condition its consent to the
use or presence of any Hazardous Substance, activity or storage tank by Lessee
upon Lessee’s giving Lessor such additional assurance as Lessor, in this
reasonable discretion, deems necessary to protect itself, the public, the
Premises and the environment against damage, contamination or injury and/or
liability therefrom or therefor, including, but not limited to, the installation
(and removal on or before Lease expiration or earlier termination) of reasonably
necessary protective modification to the Premises (such as concrete encasements)
and/or the deposit of an additional Security Deposit under Paragraph 4
hereof
21
(b) Duty
to Inform Lessor. If Lessee knows, or has reasonable cause to
believe, that a Hazardous Substance, or a condition involving or resulting from
same, has come to be located in, on, or under or about the Premises, other than
as previously consented to by Lessor, Lessee shall immediately give written
notice of such fact to Lessor. Lessee shall also immediately give
Lessor a copy of any statement, report, notice, registration, application,
permit, business plan, license, claim, action or proceeding given to, or
received from, any governmental authority or private party, or persons entering
or occupying the Premises, including but not limited to all such documents as
may be involved in any Reportable Use involving the Premises.
(c) Indemnification. Lessee
shall indemnify, protect, defend and hold Lessor its agents, employees, lenders
and ground Lessor, if any, and the Demised Premises, harmless from and against
any and all loss of rents and/or damages, liabilities, judgments, costs, claims,
liens, expenses, penalties, permits and attorney’s and consultant’s fees arising
out of or involving any Hazardous Substance or storage tank brought onto the
Premises by Lessee or under Lessee’s control. Lessee’s obligations
under this Paragraph 45.7c shall include, but not be limited to, the effects of
any contamination or injury to person, property or the environment crated or
suffered by Lessee, and the cost of investigation (including consultant’s
attorney’s fees and testing), removal, remediation, restoration and/or abatement
thereof, or of any contamination therein involve, and shall survive the
expiration or earlier termination of this Lease. No termination,
cancellation or release agreement entered into by Lessor and Lessee shall
release Lessee form its obligations under this Lease with respect to Hazardous
Substance or storage tanks, unless specifically so agreed by Lessor iii writing
at the time of such agreement.
45.8 In
the event that any check given to Lessor by Lessee shall not be honored by the
bank upon which it is drawn, then Lessor, at its option, may require that all
future payments made by Lessee be in the form of a cashier’s check or
equivalent
45.9 Any
payment made by Lessee pursuant to a written notice to “pay or be deemed in
default under this Lease” shall be made by cashier’s check or
equivalent.
45.10 The
submission of this Lease does not constitute a reservation of, or option for the
Premises and this document shall only become effective as a Lease upon execution
by both Lessor and Lessee. Lessor’s approval of the terms contained
herein is subject to Lessor’s review and acceptance of Lessee’s references and
financial information for the entities signing this Lease an/or guaranteeing
this Lease.
22
45.11 Trash
Removal. Lessor shall contract for a company to remove trash from the
Premises. Lessee shall deposit all trash in the containers provided
by said company in the manner and location designated by Lessor.
45.12 Excessive
Trash Use. Should Lessee’s use make it necessary to require trash
removal in excess of that usually supplied or furnished for the use of the
Premises as general office/warehouse space, Lessor shall consult with the trash
removal company as to how much additional trash removal is required for Lessee’s
excess trash. Lessee agrees to pay for all such excess trash removal
at the rates charged by the contracted trash removal company.
45.13 Excessive
Water Use. Lessee, without the prior written consent of Lessor, will
neither use any apparatus or device in or about the Premises which will in any
way increase the amount of water usually furnished or supplied for use of the
Premises as general office/warehouse space, nor connect with water pipes any
apparatus or device for the purposes of using water. If Lessee shall
require water in excess of that usually furnished or supplied for use of the
Premises as general office and warehouse space, Lessee shall first obtain the
consent of Lessor, which Lessor may refuse, to the use thereof, and Lessor may
cause a water meter to be installed in the Premises, so as to measure the amount
of water consumed for any other use. The cost of any such meter and
of installation, maintenance and repair thereof shall be paid for by
Lessee. Lessee agrees to pay to Lessor as additional rent for all
such water consumed, as shown by said meters, at the rates charged for such
services by the local public authority furnishing water, plus any additional
expense included in keeping account of the water consumed.
45.14 Outside
Storage. No storage will be allowed outside the building or on any of
the common areas. This includes, but is not limited to supplies,
materials, goods, pallets, equipment, vehicles and boats. All trash
must be placed in trash receptacles. Any violation of this paragraph shall be
deemed a material default and Lessor shall have the right to remedy the same at
Lessee’s expense.
45.15
Outside Work. No work shall be permitted on the sidewalks, roofs,
streets, driveways, parking or landscaped areas this includes, but is not
limited to assembly, construction, mechanical work, painting, drying, layout,
cleaning or repair of goods or material. Violations of this paragraph
shall constitute a material breach of this Lease.
45.16 Applicable
Law. This Lease shall be governed by and construed in accordance with
the laws of the state in which the Demised Premises are located.
45.17 Pets. Lessee
shall not keep pets at the Demised Premises. Nothing in this
paragraph precludes trained animals providing assistance to disabled persons,
including Lessees, their employees, invitees or customers.
[Signature
Page to Follow]
23
IN
WITNESS WHEREOF, the parties have entered into this Lease effective as of the
date first set forth above.
DATED
this 5th day of December, 2008.
|
LESSOR:
|
|||
|
OAKLEY
VENTURES, LLC,
|
|||
|
a
Colorado limited liability company
|
|||
|
By:
|
Highline
Realty Partners, Inc.,
|
||
|
a
Colorado corporation, its Manager
|
|||
|
By:
|
/s/ Xxxx X. Xxxxx, Xx.
|
||
|
Xxxx
X. Xxxxx, Xx.,
President
|
|||
|
LESSEE:
|
|||
| ETERNAL ENERGY CORP., | |||
| a Nevada corporation | |||
|
By:
|
/s/ Xxxx Xxxxx
|
||
|
Xxxx
Xxxxx,
President
|
|||
24
Schedule
A
Xxxxxx
Building
Approximately
3,207 rentable square feet of the Xxxxxx building, located at 0000 X. Xxxx
Xxxxxx, Xxxxx 000 xx Xxxxxxxxx, XX, 00000
Schedule
B
See
Attached
Schedule
C
Base
Rent
|
Months
|
Monthly Payment
|
Approx. Sq. Ft. / Year
|
||||||
|
1 –
12
|
$ | 5,077.75 | $ | 19.00 | ||||
|
13
– 24
|
$ | 5,211.38 | $ | 19.50 | ||||
|
25
– 36
|
$ | 5,345.00 | $ | 20.00 | ||||
Schedule
D
Itemization of Estimated
Common Area Expenses
|
Description of Expense
|
2009
Estimated
Annual
Expense
(Per Sq. Ft.)
|
|||
|
Common Area Operating
Expenses – Lessee will pay its proportionate share of costs to
operate and maintain the common areas, including sidewalks and parking lot
of the Xxxxxx Building, trash service, other direct maintenance building
costs and property management fees.
|
$ | 1.97 | ||
|
Property Taxes – Lessee
will pay its proportionate share of any taxes or other sum assessed
against the Xxxxxx Building.
|
$ | 2.14 | ||
|
Insurance Expenses –
Lessee will pay its proportionate share of the cost of the liability and
fire and extended coverage insurance for the Xxxxxx
Building.
|
$ | 0.32 | ||
|
Roof, Structural, Utility
Systems and Maintenance of Leased Premises – Lessee shall pay a sum
that the Lessor shall expend and/or establish a replacement reserve for
maintaining, repairing and replacing the HVAC system (whether roof
mounted, interior placed or otherwise affixed outside the leased premises
and plumbing and electrical systems serving the leased
premises.
|
$ | 0.29 | ||
|
Total
Estimated Annual Common Area Expenses for 2009
|
$ | 4.72 | ||
