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EXHIBIT 10.2
OFFICE BUILDING LEASE
FOR
CENTENNIAL CENTER
COLUMBINE WEST LLC,
A COLORADO LIMITED LIABILITY COMPANY
(AS LANDLORD)
AND
HERITAGE BANK, A COLORADO CORPORATION
(AS TENANT)
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OFFICE BUILDING LEASE
THIS LEASE is made as of the 11th day of July, 2001, by and between
Columbine West LLC, a Colorado limited liability company ("Landlord") and
Heritage Bank, a Colorado corporation ("Tenant").
WITNESSETH:
1. DEFINITIONS
In addition to other terms which are defined elsewhere in this Lease,
the terms defined in the following subparagraphs of. this Paragraph 1 shall have
the meanings set forth in such subparagraph whenever used in this Lease with the
first letter of each capitalized.
A. "Operating Expenses" are estimated to be an amount equal to $6.80
for the year 2001, per annum multiplied by the total number of square feet of
the Rentable Area, as hereinafter defined.
B. "Base Rent" shall mean:
Term Monthly s.f./NNN
---- -------
5/1/2003 to 10/30/03 $4,921.13 $16.50 plus operating expenses
5/1/2003 to 10/31/03 $4,921.13 $16.50 plus operating expenses
C. "Building Standard" shall mean the level of tenant finish
improvements or level of Building services, as the context may require,
customarily offered from time to time by Landlord to all tenants of the
Building.
D. "Common Areas" shall mean portions of the Building and Shopping
Center (as those terms are hereinafter defined) which are made available on a
non-exclusive basis for general use in common of tenants, their employees,
agents and invitees. Landlord shall have the right from time to time to change
the location of character of and to make alterations of or additions to the
Common Areas, and to repair and reconstruct the Common Areas.
E. "Landlord's Notice Address" shall mean 000 00xx Xxxxxx, Xxxxx 000,
Office of the Manager, Xxxxxx, Xxxxxxxx 00000, or such other address as Landlord
may from time to time designate.
F. "Lease Year" shall mean each twelve (12) month period beginning with
the date the Primary Lease Term commences, or any anniversary thereof, and
ending on the preceding date one (1) year later.
G. "Premises" shall mean those certain premises comprised of
approximately 3,579 rentable square feet of space, known as Suite 211, as
depicted on Exhibit A attached hereto,
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located on the second floor of the office building (the "Building") depicted on
Exhibit A-2l hereto, which Building is a part of a shopping center located on a
parcel of real property described on Exhibit B in the County of Boulder,
Colorado (the "Tract"), known as Centennial Center (the Tract and all
improvements now or hereafter constructed thereon are collectively referred to
herein as the "Shopping Center"). A portion of the improvements in the Shopping
Center depicted on Exhibit A-2 is a retail center (the "Retail Center").
H. "Primary Lease Term" The term of the Lease shall commence at 12:01
a.m. on the 1st day of May 2003, and shall terminate at 12:00 midnight on the 31
day of October 2003, of a term of six months. Tenant may terminate earlier than
six months by giving Landlord ninety (90) days' prior written notice.
I. "Rentable Area" shall mean approximately 32,289 rentable square feet
which is all rentable space available for leasing in the Building. If there is a
significant change in the aggregate Rentable Area as a result of an addition to
the Building, partial destruction thereof, modification to Building design, or
similar cause which causes a reduction or increase thereto on a permanent basis,
Landlord shall make such adjustment in the computations as shall be necessary to
provide for any such change. Tenant agrees that the Rentable Area, the Base
Rent, and Tenant's Pro Rata Share may be recalculated in the event that the
Building and/or Premises are measured upon completion, and it is determined that
the square footage of the Building and/or Premises differs from those set forth
in Paragraphs 1, 4 and 5 hereof.
J. "Security Deposit" shall mean the sum of $4,921.13.
K. "Tenant's Notice Address" shall mean the Premises.
L. "Tenant's Permitted Use" shall mean business office use.
M. "Tenant's Pro Rata Share" shall mean 11 and 1/100 percent (11.1%),
calculated by dividing the rentable square feet comprising the Premises by the
Rentable Area. In the event Tenant at any time during the Primary Lease Term, or
any extensions thereof, leases additional space in the Building, Tenant's Pro
Rata Share shall be recomputed by dividing the total rentable square footage of
space then being leased by Tenant (including any additional space) by the
Rentable Area and the resulting percentage shall become Tenant's Pro Rata Share.
N. "Contingency" This Lease Agreement for Suite #211 is expressly
contingent upon execution of a Sublease Agreement and Landlord's Consent to
Sublease with respect to Suite 211 between Heritage Bank and Estarcom, Inc. If
such sublease is not executed on or before said date, this Lease Agreement shall
be deemed null and void and of no further force and effect.
2. PREMISES
In consideration of the payment of rent and the keeping and performance
of the covenants and agreements by Tenant, as hereinafter set forth, Landlord
hereby leases and demises unto Tenant the Premises, together with a
non-exclusive right, subject to the provisions hereof, to use
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all appurtenances thereto, including, but not limited to, any plazas, Common
Areas, or other areas on the real property (described more particularly on
Exhibit B) designated by Landlord for the exclusive or non-exclusive use of the
tenants of the Building.
3. RENT
Tenant shall begin to pay the Base Rent on the date the Primary Lease
Term commences and shall continue to pay on the first day of each month
thereafter during the term hereof. Landlord will allow Tenant a five (5) day
grace period. All rents shall be paid in advance, without notice, set off;
abatement, counterclaim, deduction or diminution, at Landlord's Notice Address,
or at such place as Landlord from time to time designates in writing. In
addition, Tenant shall pay to Landlord Tenant's Pro Rata Share of increases in
Operating Expenses as provided herein and such other charges as are required by
the terms of this Lease to be paid by Tenant which shall be referred to herein
as "Additional Rent." Landlord shall have the same rights as to the Additional
Rent as it has in the payment of Base Rent.
4. {Intentionally deleted}
5. OPERATING EXPENSES
A. "Operating Expenses" shall mean all operating expenses of any kind
or nature which are necessary, ordinary, or customarily incurred in connection
with the operation and maintenance of the Building and Shopping Center as
determined by Landlord or Landlord's Accountants. Landlord shall allocate
Operating Expenses attributable to operation and maintenance of the Common Areas
of the Shopping Center between the Retail Center and the Building. It is
understood and acknowledged by Tenant that Landlord has not made any
representation or given Tenant any assurances that the Base Operating Expenses
xxxx equal any specified amounts (any estimates provided by Landlord being
deemed non-binding estimates only). Operating Expenses shall include, but not be
limited to:
(1) All real property taxes and assessments levied against the
Building and Common Areas by any governmental or quasi-governmental authority.
If the Building is taxed with other portions of the Shopping Center, Landlord
shall equitably allocate such taxes and assessments between the Building and
Retail Center The foregoing shall include any taxes, assessments, surcharges, or
service or other fees of a nature not presently in effect which shall hereafter
be levied on the Building and Common Areas as a result of the use, ownership or
operation of the Shopping Center or for any other reason, whether in lieu of or
in addition to, any current real estate taxes and assessments; provided,
however, any taxes which shall be levied on the rentals of the Shopping Center
shall be determined as if the Shopping Center were Landlord's only property and,
provided, further, that in no event shall the term "taxes or assessments," as
used herein, include any net federal or state income taxes levied or assessed on
Landlord, unless such taxes are a specific substitute for real property taxes.
Such term shall, however, include gross taxes on rentals. Expenses incurred by
Landlord for tax consultants and in contesting the amount or validity of any
such taxes or assessments shall be included in such computations (all of the
foregoing are collectively referred to herein as the "Taxes"). "Assessment"
shall include
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so-called special assessments, license tax, business license fee, business
license tax, commercial rental tax, levy, charge penalty or tax, imposed by any
authority having the direct power to tax, including any city, county, state or
federal government, or any school, agricultural, lighting, water, drainage or
other improvement or mall district or special district thereof, against the
Premises, the Building or Shopping Center or any legal or equitable interest of
Landlord therein. For the purposes of this Lease, any special assessments shall
be deemed payable in such number of installments as is permitted by law, whether
or not actually so paid and shall include any applicable interest on such
installments;
Notwithstanding anything to the contrary contained herein, Tenant shall
pay before delinquency any and all taxes , assessments, license taxes and other
charges levied, assessed or imposed and which become payable during the Primary
Lease Term and any extension upon Tenant's operations at, occupancy of, or
conduct of business at the Premises or upon equipment, furniture, appliances,
trade fixtures and other personal property of any kind installed or located at
the Premises. If Tenant shall install or cause Landlord to install special
tenant improvements such as, but not limited to, private elevators, escalators,
interior staircases or other fixtures and fittings which caused an increase in
the assessed value of the Building, then Tenant shall also pay as Additional
Rent all of the taxes reasonably allocable to such extraordinary improvements.
If the taxing authorities failed to render a separate tax xxxx with respect to
such improvements, Landlord shall allocate a reasonable portion of such taxes on
the Building to such improvements.
(2) Costs of supplies, including, but not limited to, the cost
of relamping and replacing ballasts in all Building Standard tenant lighting as
the same may be required from time to time;
(3) Costs incurred in connection with obtaining and providing
energy for the Building and Shopping Center, including, but not limited to,
costs of propane, butane, natural gas, steam, electricity, solar energy and fuel
oils, coal or any other energy sources;
(4) Costs of water and sanitary and storm drainage services;
(5) Costs of janitorial and security services;
(6) Costs of general maintenance and repairs, including costs
under HVAC and other mechanical maintenance contracts; and repairs and
replacements of equipment used in connection with such maintenance and repair
work;
(7) Costs of maintenance and replacement of landscaping;
(8) Insurance premiums, including fire and all-risk or
multi-peril coverage, together with loss of rent endorsement, if applicable; the
part of any claim required to be paid under the deductible portion of any
insurance policy carried by Landlord in connection with the Shopping Center
(where Landlord is unable to obtain insurance without such deductible from a
major insurance carrier at reasonable rates); public liability insurance; and
any other insurance carried by Landlord on the Shopping Center or any component
parts thereof (all such insurance
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shall be in such amounts as may be required by any Mortgagee [as defined in
Paragraph 21 hereof] or as Landlord may reasonably determine);
(9) Labor costs, including wages and other payments, costs to
Landlord of workmen's compensation and disability insurance, payroll taxes,
welfare fringe benefits, and all legal fees and other costs or expenses incurred
in resolving any labor dispute;
(10) Professional building management fees, costs and
expenses, including costs of office space and storage space required by
management for performance of its services as contemplated herein;
(11) Legal, accounting, inspection, and other consultation
fees (including, without limitation, fees charged by consultants retained by
Landlord for services that are designed to produce a reduction in Operating
Expenses or to reasonably improve the operation, maintenance or state of repair
of the Building and/or Shopping Center) incurred in the ordinary course of
operating the Building and/or Shopping Center;
(12) The costs of capital improvements and structural repairs
and replacements made in or to the Building and/or Shopping Center in order to
conform to changes subsequent to the date of issuance of the certificate of
occupancy for the Building in any applicable laws, ordinances, rules,
regulations, or orders of any governmental or quasi-governmental authority
having jurisdiction over the Shopping Center (herein "Required Capital
Improvements"); and the costs of any capital improvements and structural repairs
and replacements designed primarily to reduce Operating Expenses (herein "Cost
Savings Improvements"). The, expenditures for Required Capital Improvements and
Cost Savings Improvements shall be amortized at a market rate of return over the
useful life of such capital improvement or structural repair or replacement (as
determined by Landlord's Accountants); provided that the amortized amount of any
Cost Savings Improvement shall be limited in any year to the reduction in
Operating Expenses as a result thereof;
(13) Costs incurred by Landlord's Accountants in engaging
experts or other consultants to assist them in making the computations required
hereunder;
(14) Costs incurred by Landlord to operate, maintain and
repair the health club facility and equipment therein.
"Operating Expenses" shall not include:
(a) Costs of work, including painting and decorating and
tenant change work, which Landlord performs for any tenant or in any tenant's
space in the Shopping Center other than work of a kind and scope which Landlord
would be obligated to furnish to all tenants whose leases contain a rental
adjustment provision similar to this one;
(b) Costs of repairs or other work occasioned by fire,
windstorm or other insured casualty to the extent of insurance proceeds
received;
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(c) Leasing commissions, advertising expenses, and other costs
incurred in leasing space in the Shopping Center;
(d) Costs of repairs or rebuilding necessitated by
condemnation;
(e) Any interest on borrowed money or debt amortization,
except as specifically set forth above; or
(f) Depreciation on the Building and/or Shopping Center.
B. During each calendar year of the Primary Lease Term, or any
extension thereof, including the first calendar year, Tenant shall pay to
Landlord Tenant's Pro Rata share of Operating Expenses. All, amounts required to
be paid by Tenant shall be paid within thirty (30) days following billing
therefor by Landlord. In addition to the foregoing, it is agreed that, during
each calendar year beginning with the first month of the second calendar year
and continuing each month thereafter during the Primary Lease Term, or any
extension thereof, Tenant shall pay to Landlord, at the same time as the Base
Rent is paid, an amount equal to one-twelfth (1/12) of Landlord's estimate (as
determined by Landlord's Accountants) of Tenant's Pro Rata Share of any
Operating Expenses for the particular calendar year, with a final adjustment to
be made between the parties at a later date for said calendar year.
(1) As soon as practicable following the end of each calendar
year during the Primary Lease Term, or any extension thereof, including the
first calendar year, Landlord shall submit to Tenant a statement prepared by a
representative of Landlord setting forth the exact amount of Tenant's Pro Pita
Share of the Operating Expenses for the calendar year just completed. Each such
statement shall also set forth the projected Operating Expenses, for the new
calendar year and the corresponding increase or decrease in Tenant's monthly
rent for such new calendar year above or below the rental paid by Tenant for the
immediately preceding calendar year computed in accordance with the foregoing
provisions. To the extent that Tenant's Pro Rata Share of the Operating Expenses
for the period covered by such statement is different from the estimated amount
upon which Tenant paid rent during the calendar year just completed, Tenant
shall pay to Landlord the difference in cash within thirty (30) days following
receipt by Tenant of such statement from Landlord or receive a credit on the
next months' rental owing hereunder, as the case nay be. Until Tenant receives
such statement, Tenant's monthly rent for the new calendar year shall continue
to be paid at the rate paid for the particular calendar year just completed, but
Tenant shall commence payment to Landlord of the monthly installments of rent on
the basis of said statement beginning on the first day of the month following
the month in which Tenant receives such statement. Moreover, Tenant shall pay to
Landlord or deduct from the rent, as the case may be, on the date required for
the first payment of rent, as adjusted, the difference, if any, between the
monthly installments of rent so adjusted for the new calendar year and the
monthly installments of rent actually paid during the new calendar year.
(2) In addition to the above, if, during any particular
calendar year, there is a change in the information on which Landlord's
Accountants based the estimate upon which Tenant is then making its estimated
rental payments so that such estimate furnished to Tenant is
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no longer accurate, Landlord shall be permitted to revise such estimate by
notifying Tenant and there shall be such adjustments made in the monthly rental
on the first day of the month following the serving of such statement on Tenant
as shall be necessary by either increasing or decreasing, as the case may be,
the amount of monthly rent then being paid by Tenant for the balance of the
calendar year (but in no event shall any such decrease result in a reduction of
the rent below the Base Rent), as well as an appropriate adjustment in cash
based upon the amount theretofore paid by Tenant during such particular calendar
year pursuant to the prior estimate.
(3) In the event the Rentable Area is not fully occupied
during any particular calendar year, Landlord's Accountants may adjust those
Operating Expenses which are affected by the occupancy rates for the particular
calendar year, or portion thereof, as the case may be, to reflect an occupancy
of not less than ninety-five percent (95%) of all such Rentable Area.
(4) If the calendar year is not concurrent with the Lease
Year, Landlord shall, at any time during the Primary Lease Term, or any
extensions thereof, make all adjustments provided for in this Paragraph S with
an appropriate proration for the Lease Year in which the Primary Lease Term or
any extension begins or ends. In addition, Landlord may elect at any time during
the Primary Lease Term or any extensions thereof to make all adjustments
provided for in this Paragraph 5 on a Fiscal Year basis with an appropriate
proration for the calendar year in which such conversion is made and in which
the term ends and all references in this Lease to calendar year shall thereafter
be deemed to refer to "Fiscal Year."
(5) Landlord's and Tenant's responsibilities with respect to
the Operating Expense adjustment described herein shall survive the expiration
or early termination of this Lease.
C. If Tenant shall dispute the amount of an adjustment submitted by
Landlord's Accountants or the proposed estimated increase or decrease on the
basis of which Tenant's rent is to be adjusted as provided in subparagraph B
above, Tenant shall give Landlord written notice of such dispute within thirty
(30) days after Landlord's Accountants advise Tenant of such adjustment or
proposed increase or decrease. If Tenant does not give Landlord such notice
within such time, Tenant shall have waived its right to dispute the amounts so
determined. If Tenant timely objects, Tenant shall have the right to engage its
own certified public accountants ("Tenant's Accountants") for the purpose of
verifying the accuracy of the statement complained of or the reasonableness of
the estimated increase or decrease. If Tenant's Accountants determine that an
error has been made, Landlord's Accountants and Tenant's Accountants shall
endeavor to agree upon the matter, failing which the parties shall settle the
dispute by judicial action or in such other manner as they agree. All costs
incurred by Tenant in obtaining its own accountants shall be paid for by Tenant
unless Tenant's Accountants disclose an error, acknowledged by Landlord's
Accountants (or found to have occurred in a judicial action), of more than seven
percent (7%) in the computation of the total amount of Operating Expenses as set
forth in the statement submitted by Landlord's Accountants which is challenged,
in which event Landlord shall pay the reasonable costs incurred by Tenant in
obtaining such audit. Notwithstanding the pendency of any dispute over any
particular statement, Tenant shall continue to pay Landlord the amount of the
adjusted monthly installments of rent determined by Landlord's Accountants until
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the adjustment has been determined to be incorrect as aforesaid. If it shall be
determined that any portion of the Operating Expenses were not properly
chargeable to Tenant, then Landlord shall promptly credit or refund the
appropriate sum to Tenant. Delay by Landlord or Landlord's Accountants in
submitting any statement contemplated herein for any calendar year shall not
affect the provisions of this Paragraph 5 or constitute a waiver of Landlord's
rights as set forth herein for said calendar year or any subsequent calendar
years during the Primary Lease Tent and any extensions thereof.
D. Notwithstanding anything contained herein to the contrary, if any
lease entered into by Landlord with any tenant in the Building is on a so-called
"net" basis, or provides for a separate basis of computation for any Operating
Expenses with respect to its leased premises, then, to the extent that
Landlord's Accountants determine that an adjustment should be made in making the
computations herein provided for, Landlord's Accountants shall be permitted to
modify the computation of Base Operating Expenses, Rentable Area, and Operating
Expenses for a particular calendar year in order to eliminate or otherwise
modify any such expenses which are paid for in whole or in part by such tenant.
Furthermore, in making any computations contemplated hereby, Landlord's
Accountants shall also be permitted to make such adjustments and modifications
to the provisions of this Paragraph 5 as shall be reasonably necessary to
achieve the intention of the parties hereto.
E. "Landlord's Accountants" shall mean that individual or firm employed
by Landlord from time to time to keep the books and records for the Building,
and/or to prepare the federal and state income tax returns for Landlord with
respect to the Building, all of which books and records shall be certified to by
an appropriate representative of Landlord.
6. SERVICES
A. Subject to the provisions of subparagraph D below, Landlord, without
charge, except as provided herein, and in accordance with standards from time to
time prevailing for the Building, agrees: (1) to furnish running water at those
points of supply for general use of tenants of the Building; (2) to furnish to
public areas of the Building heated or cooled air (as applicable), electrical
current, janitorial services, and maintenance to the extent Landlord deems
necessary; (3) to furnish, during Ordinary Business Hours, as hereinafter
defined, such heated or cooled air to the Premises as may, in the judgment of
Landlord, be reasonably required for the comfortable use and occupancy of the
Premises, provided that the recommendations of Landlord's engineer regarding
occupancy and use of the Premises are complied with by Tenant and, with respect
to cooled air, provided the same is used only for standard office use; (4) to
provide, during Ordinary Business Hours, the general use of passenger elevators
for ingress and egress to and from the Premises (except in the case of
emergencies or repair); (5) to provide janitorial services for the Premises to
the extent of the Building Standard tenant finish work items contained therein
(including such window washing of the outside of exterior windows as may, in the
judgment of Landlord, be reasonably required), but unless and until the Building
Standard changes, such janitorial services shall be provided after Ordinary
Business Hours on Monday through Friday only, except for Legal Holidays; and (7)
to cause electric current to be supplied to the Premises for all of Tenant's
Standard Electrical Usage, as hereinafter defined. "Tenant's Standard Electrical
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Usage," as used herein; shall mean and refer to electrical usage for standard
lighting and ordinary office usage including desk-top computers and office
machines. "Ordinary Business Hours" as used herein shall mean and refer to 7:00
a.m. to 6:00 p.m. Monday through Friday and 9:00 an. to 1:00 p.m. on Saturdays,
Legal Holidays excepted. "Legal Holidays," as used herein, shall mean New Year's
Day, Xxxxxx Xxxxxx Xxxx Day, Presidents' Day, Memorial Day, Independence Day,
Labor Day, Thanksgiving Day, Christmas Day, and such other national holidays as
may be hereafter established by the United States Government.
B. "Excess Usage" shall be defined as any service usage (1) during
other than Ordinary Business Hours; or (2) in an amount in excess of Tenant's
Standard Electrical Usage; or (3) for "Special Equipment"; or (4) for HVAC
services during other than Ordinary Business Hours. "Special Equipment," as used
herein, shall mean (a) any equipment consuming more than 0.5 kilowatts at rated
capacity, (b) any equipment requiring a voltage other than 120 volts, single
phase, or (c) equipment that requires the use of self-contained HVAC units.
Tenant shall reimburse Landlord for reasonable costs incurred by Landlord in
providing services for Excess Usage, which costs are subject to change from time
to time. Such reasonable costs will include Landlord's costs for materials,
additional wear and tear on equipment, utilities, and labor (including fringe
and overhead costs). Computation of Landlord's cost for providing such services
will be made by Landlord's engineer. Tenant shall also reimburse Landlord for
all costs of supplementing the Building HVAC System and/or extending or
supplementing any electrical service, as Landlord may determine is necessary, as
a result of Tenant's Excess Usage. Prior to installation or use by Tenant of any
equipment which will result in Excess Usage or operation of the Premises for
extended hours on an ongoing basis, Tenant shall notify Landlord of such
intended installation or use and obtain Landlord's consent therefor. In addition
to the foregoing, Landlord, at its option or upon written request of Tenant, may
install, at Tenant's sole cost and expense, a check meter and/or flow meter to
assist in determining the cost to Landlord of Tenant's Excess Usage. If Tenant
desires electric current and/or heated or cooled air to the Premises during
periods other than Ordinary Business Hours, Landlord will use reasonable efforts
to supply the same, but at the expense of Tenant, at Landlord's standard rate as
established by it, from time to time, for such services which as of the date
hereof is $50.00 per hour. Not less than forty-eight (48) hours' prior notice
shall be given by Tenant to Landlord of Tenant's desire for such services. It is
also understood and agreed that Tenant shall pay the cost of replacing light
bulbs and/or tubes and ballast used in all lighting in the Premises other than
Building Standard lighting.
C. If Tenant requires janitorial services other than those required to
be provided to other tenants of the Building generally, Tenant shall separately
pay for such services monthly upon xxxxxxxx by Landlord, or Tenant shall, at
Landlord's option, separately contract for such services with the same company
furnishing janitorial services to Landlord. Notwithstanding the foregoing,
Tenant shall have the right, subject to Landlord's prior written consent and
such rules, regulations and requirements as Landlord may impose (including but
not limited to the requirement that such janitors belong to a trade union), to
employ janitors, other than those employed by Landlord, to perform such
additional services.
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D. Tenant agrees that Landlord shall not be liable for failure to
supply any such heating, air conditioning, elevator) electrical, janitorial,
lighting or other services, or during any period Landlord is required to reduce
or curtail such services pursuant to any applicable laws, rules, or regulations,
including regulations of any utility now or hereafter in force or effect, it
being understood that Landlord may discontinue, reduce, or curtail such
services, or any of them (either temporarily or permanently), at such times as
it may be necessary by reason of accident, repairs, alterations, improvements,
strikes, lockouts, riots, acts of God, application of applicable laws, statutes,
or rules and regulations or due to any other happening beyond the control of
Landlord. In the event of any interruption, reduction, or discontinuance of
Landlord's services (either temporary or permanent), Landlord shall not be
liable for damages to person or property as a result thereof nor shall the
occurrence of any such event in any way be construed as an eviction of Tenant;
or cause or permit an abatement, reduction or setoff of rent; or operate to
release Tenant from any of Tenant's obligations hereunder.
E. Tenant agrees to notify promptly the Landlord or its representative
of any accidents or defects in the Building of which Tenant becomes aware
including defects in pipes, electric wiring, and HVAC equipment. In addition,
Tenant shall provide Landlord with prompt notification of any matter or
condition which may cause injury or damage to the Building or any person or
property therein.
F. Landlord shall have the right at any time and from time to time
during the Lease Term to contract for utility services from any company
providing such services as Landlord may select in its sole opinion. Such
selection right includes the control or limit access to any companies providing
electricity service, telephone service or any other service utilized by the
Building systems. Additionally, Landlord shall have sole control of the roof top
and central service points from which Tenant's electrical or telecommunication
services, including computers, are to be attached. Tenant shall be solely
responsible for the costs of all such connections related to Tenant's telephone
or telecommunication services.
7. QUIET ENJOYMENT
So long as Tenant complies with the provisions hereof, Tenant shall be
entitled to the quiet enjoyment and peaceful possession of the Premises, subject
to the terms and provisions of the Lease.
8. DEPOSIT
It is agreed that, concurrently with the execution of this Lease,
Tenant has deposited with Landlord and will keep on deposit at all times during
the term of this Lease, the Security Deposit, the receipt of which is hereby
acknowledged, as security for the payment by Tenant of all rent and other
amounts herein agreed to be paid and for the faithful performance of all the
terms, conditions, and covenants of this Lease. If, at any time during the term
of this Lease, Tenant shall be in default in the performance of any provision
of this Lease, Landlord shall have the right to use said deposit, or so much
thereof as necessary, in payment of any rent or other amount in default as
aforesaid, in reimbursement of any expense incurred by Landlord, and in
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payment of any damages incurred by Landlord by reason of Tenant's default. In
such event, Tenant shall, on written demand of Landlord, forthwith remit to
Landlord a sufficient amount in cash to restore said deposit to an amount equal
to: (i) the Base Rent if Tenant's default occurs thereafter, plus the monthly
amount of Tenant's Pro Rata Share of increases in Operating Expenses then
payable by Tenant pursuant to Paragraph 5.B hereof, times (ii) the number of
months' worth of Base Rent represented by the initial deposit. In the event said
deposit has not been utilized as aforesaid, said deposit, or as much thereof as
has not been utilized for such purposes, shall be refunded to Tenant or to
whomever is then the holder of Tenant's interest in this Lease, without
interest, sixty (60) days after full performance of this Lease by Tenant.
Landlord shall have the right to commingle said deposit with other funds of
Landlord. At Landlord's election, Landlord may elect to have the Security
Deposit held by Landlord's manager in a separate security deposit trust, trustee
or escrow account established and maintained by such manager with respect to
certain security deposits of tenants within the Building. Unless Tenant is so
notified, (i) Landlord will hold the Security Deposit and be responsible for its
return; (ii) Tenant may request return of the Security Deposit by giving
Landlord written notice in accordance with the provisions of the Lease,
addressed to Landlord as provided in this Lease; and (iii) Landlord's manager,
if there is one, agrees that in the event of a dispute over the ownership of the
Security Deposit, the manager will not wrongfully withhold Landlord's true name
and current mailing address from Tenant. Landlord may deliver the funds
deposited herein by Tenant to the purchaser of Landlord's interest in the
Premises in the event such interest be sold and, thereupon, Landlord shall be
discharged from further liability with respect to such deposit. Tenant agrees
that if a Mortgagee (as defined in Paragraph 21) succeeds to Landlord's interest
in the Premises by reason of foreclosure or deed in lieu of foreclosure, Tenant
shall have no claim against said Mortgagee for the Security Deposit, or any
portion thereof, unless such Mortgagee has actually received the same from
Landlord. If claims of Landlord exceed said deposit, Tenant shall remain liable
for the balance of such claims.
9. CHARACTER OF OCCUPANCY
Tenant covenants and agrees to occupy the Premises for the Permitted
Use and for no other purpose, and to use them in a careful, safe, and proper
mariner; to pay on demand for any damage to the Premises caused by misuse or
abuse thereof by Tenant, Tenant's agents or employees, or of any other person
entering upon the Premises under express or implied invitation of Tenant.
Tenant, at Tenant's expense, shall comply with all laws, codes, rules, and
regulations of the United States, the State of
Colorado, or any applicable
municipality, governmental or quasi-governmental entity, including those
relating to pollution, hazardous and toxic material control and/or environmental
contamination ("Applicable Laws") now in effect, or which may hereafter be in
effect, (i) which shall impose any duty upon Landlord or Tenant with respect to
the occupation or alteration of the Premises; (ii) regarding the physical
condition of the Premises, but only to the extent the Applicable Laws pertain to
the particular manner in which Tenant uses the Premises; or (iii) that do not
relate to the physical condition of the Premises but relate to the lawful use of
the Premises and with which only the occupant can comply, such as laws governing
maximum occupancy. Tenant shall not commit waste or suffer or permit waste to be
committed or permit any nuisance on or in the Premises. Tenant, its agents,
employees, contractors or invitees shall not store, keep, use, sell, dispose of
or offer for sale in, upon or from the Premises
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any article or substance which may be prohibited by any insurance policy in
force from time to time covering the Building. Tenant, its agents, employees,
contractors or invitees shall not keep, store, generate or dispose of on, in or
from the Premises, the Building or the Shopping Center any substance which may
be deemed a hazardous substance, toxic material, hazardous, toxic or infectious
waste under any state, local or federal rule, statute, law, regulation or
ordinance as may be promulgated or amended from time to time, except for limited
quantities used or stored in the Premises required in connection with routine
office operation and maintenance (and then only in compliance with any
Applicable Laws).
10. MAINTENANCE, ALTERATIONS AND REENTRY BY LANDLORD
A. Unless otherwise expressly provided herein, Landlord shall not be
required to make any improvements or repairs of any kind or character to the
Premises during the Primary Lease Tent, or any extension thereof, except: (i)
such repairs to HVAC, mechanical, life safety and electrical systems in the
Premises (to the extent such systems are Building Standard) as may be deemed
necessary by Landlord for normal maintenance operations of the Building and/or
Shopping Center; and (ii) upkeep, maintenance, and repairs to all Common Areas
in the Building and/or Shopping Center so long as the need for any such repair
is not the result of Tenant's negligence.
B. Tenant covenants and agrees to permit Landlord at any time to enter
the Premises to examine and inspect the same or, if Landlord so elects, to
perform any obligations of Tenant hereunder which Tenant shall fail to perform
or to perform such cleaning, maintenance, janitorial services, repairs,
additions, or alterations as Landlord may deem necessary or proper for the
safety, improvement, or preservation of the Premises or of other portions of the
Building and/or Shopping Center or as may be required by governmental
authorities through any code, rule, regulation, ordinance, and/or law. Any such
reentry shall not constitute an eviction or entitle Tenant to abatement of rent.
Furthermore, Landlord shall at all times have the right at Landlord's election
to make such alterations or changes in other portions of the Building and/or
Shopping Center as Landlord may from time to time deem necessary and desirable
as long as such alterations and changes do not unreasonably interfere with
Tenant's use and occupancy of the Premises. Landlord may use one or more of the
street entrances to the Building and such public areas thereof as may be
necessary, in Landlord's determination to complete such alterations or changes.
11. ALTERATIONS AND REPAIRS BY TENANT
A. Tenant covenants and agrees not to make any Alterations in or
additions to the Premises (subsequent to the work in the Premises performed by
Landlord pursuant to the Work Letter), including installation of any equipment
or machinery therein which requires modification of or additions to any existing
electrical outlet or which would increase Tenant's usage of electricity beyond
Tenant's Standard Electrical Usage (all such alterations are referred to herein
collectively as "Alterations") without in each such instance first obtaining the
written consent of Landlord. Landlord's consent to any Alterations by Tenant or
Landlord's approval of the plans, specifications and working drawings for
Tenant's Alterations shall create no responsibility or
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liability on the part of Landlord for their completeness, design sufficiency, or
compliance with all laws, rules and regulations of governmental agencies or
authorities now in effect or which may hereafter be in effect. Tenant, at its
expense, shall pay all engineering and design costs incurred by Landlord
attributable to the Alterations and obtain all necessary governmental permits
and certificates required for any Alterations to which Landlord has consented
and shall cause such alterations to be completed in compliance therewith and
with all applicable laws and requirements of public authorities and all
applicable requirements of Landlord's insurance carriers. All Alterations which
Tenant is permitted to make shall be performed in a good and workmanlike manner,
using new materials and equipment at least equal in quality to the original
installations in the Premises. All repair and maintenance work required to be
performed by Tenant pursuant to the provisions of subparagraph B below and any
Alterations permitted by Landlord pursuant to the provisions hereof; including,
but not limited to, any installations desired by Tenant for Tenant's
telegraphic, telephonic or electrical connections, shall be done at Tenant's
expense by Landlord's employees or, with Landlord's consent by persons requested
by Tenant and authorized in writing by Landlord; provided, however if such work
is performed by persons who are not employees of Landlord, Tenant shall pay to
Landlord, upon receipt of billing therefor, the costs for supervision and
control of such persons as Landlord may determine to be necessary. If Landlord
authorizes persons requested by Tenant to perform such work, prior to the
commencement of any such work, on request, Tenant shall deliver to Landlord
certificates issued by insurance companies qualified to do business in the State
of
Colorado, evidencing that workmen's compensation, public liability insurance,
and property damage insurance, all in the amounts, with companies and on forms
satisfactory to Landlord, are in force and effect and maintained by all
contractors and subcontractors engaged by Tenant to perform such work. All such
policies shall name Landlord and any Mortgagee (as defined in Paragraph 21) as
an additional insured. Each such certificate shall provide that the same may not
be canceled or modified without ten (10) days' prior written notice to Landlord
and such Mortgagee. Further, Landlord and such Mortgagee shall have the right to
post notices in the Premises in locations which will be visible by parties
performing any work on the Premises stating that Landlord is not responsible for
the payment for such work and setting forth such other information as Landlord
may deem necessary. Alterations, repair, and maintenance work shall be performed
in a manner which will not unreasonably interfere with, delay, or impose any
additional expense upon Landlord in the maintenance or operation of the Building
or upon other tenants' use of their premises.
B. Tenant shall keep the Premises in as good order, condition, and
repair and in an orderly state, as when they were entered upon, loss by fire or
other casualty or ordinary wear excepted. Subject to Landlord's obligation to
make repairs in the event of certain casualties, as set forth in Paragraph 18
below, Landlord shall have no obligation for the repair or replacement of any
portion of the interior of the Premises which is damaged or wears out during the
term hereof regardless of the cause therefor, including but not limited to,
carpeting, draperies, window coverings, wall coverings, painting or any of
Tenant's property or betterments in the Premises.
C. All Alterations and permanent fixtures installed in the Premises,
including, by way of illustration and not by limitation, all partitions,
paneling, carpeting, drapes or other window coverings, and light fixtures (but
not including movable office furniture not attached to
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the Building), shall be deemed a part of the real estate and the property of
Landlord and shall remain upon and be surrendered with the Premises as a part
thereof without molestation, disturbance, or injury at the end of the Primary
Lease Term, or any extension thereof; whether by lapse of time or otherwise,
unless Landlord by notice given to Tenant no later than fifteen (15) days prior
to the end of the term shall elect to have Tenant remove all or any of the
Alterations, and in such event, Tenant shall promptly remove at Tenant's expense
the Alterations specified by Landlord and restore the Premises to their
condition prior to the making of the same, reasonable wear and tear excepted.
D. All Alterations, movable furniture and personal effects of Tenant
not removed from the Premises upon the vacation, abandonment thereof or upon the
expiration or termination of this Lease for any cause whatsoever shall
conclusively be deemed to have been abandoned and may be appropriated, sold,
stored, destroyed, or otherwise disposed of by Landlord without notice to Tenant
or any other person and without obligation to account therefor and Tenant shall
pay Landlord all expenses incurred in connection with the disposition of such
property. Tenant shall pay Landlord all expenses incurred in connection with
removal of such property, including, but not limited to, the cost of repairing
any damage to the Premises caused by the removal of such property. Tenant's
obligations hereunder shall survive the expiration or other termination of the
Lease.
12. MECHANICS' LIENS
Tenant shall pay or cause to be paid all costs for work done by Tenant
or caused to be done by Tenant on the Premises (including work performed by
Landlord or its contractor at Tenant's request following the commencement of the
Primary Lease Term) of a character which will or may result in liens on
Landlord's interest therein and Tenant will keep the Premises free and clear of
all mechanics' liens, and other liens on account of work done far Tenant or
persons claiming under it, excluding any finish work performed by Landlord
pursuant to the Work Letter. Tenant hereby agrees to indemnify, defend, and save
Landlord harmless of and from all liability, loss, damage, costs, or expenses,
including attorneys' fees, on account of any claims of any nature whatsoever
including claims or liens of laborers or materialmen or others for work
performed for or materials or supplies furnished to Tenant or persons claiming
under Tenant Should Tenant receive any notice of intent to file a lien, Tenant
shall deliver a copy of such notice to Landlord and shall promptly resolve the
claim. Should any liens be filed or recorded against the Premises or any action
affecting the title thereto be commenced as a result of such work (which term
includes the supplying of materials), Tenant shall cause such liens to be
removed of record within five (5) days after the filing or recording of such
liens, If Tenant desires to contest any claim of lien. Tenant shall furnish to
Landlord adequate security of at least one hundred fifty percent (150%) of the
amount of the claim, plus estimated costs and interest or, at Tenant's option,
file a bond with the appropriate court and obtain a release of the lien pursuant
to Section 00-00-000, C.R.S. If a final judgment establishing the validity or
existence of any lien for any amount is entered, Tenant shall pay and satisfy
the same at once if Tenant shall be in default in paying any charge for which a
mechanic's lien or suit to foreclose the lien has been recorded or filed and
shall not have given Landlord security as aforesaid, Landlord may (but without
being required to do so) pay such lien or claim and any costs, and the amount so
paid, together with
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reasonable attorney's fees incurred in connection therewith, shall be
immediately due from Tenant to Landlord.
13. SUBLETTING AND ASSIGNMENT
A. Tenant shall neither sublet any part of the Premises nor assign this
Lease or any interest herein without the written consent of Landlord first being
obtained, which consent, as to any subletting of less than twenty-five percent
(25%) of the Premises, will not be unreasonably withheld provided that: (i)
Tenant has complied with the provision of subparagraph C below and Landlord has
declined to exercise its rights thereunder; (ii) the proposed subtenant or
assignee is engaged in a business and the Premises will be used in a manner
which is in keeping with the then standards of the Building and does not
conflict with any exclusive use tights granted to any other tenant; (iii) the
proposed subtenant or assignee has reasonable financial worth in light of the
responsibilities involved and Tenant shall have provided Landlord with
reasonable evidence thereof; (iv) Tenant is not in default hereunder at the time
it makes its request for such consent; (v) the proposed subtenant or assignee is
not a governmental or quasi-governmental agency; (vi) the proposed subtenant or
assignee is not a tenant under, or is not currently negotiating, a lease with
Landlord in any Building owned by Landlord in the Denver metropolitan area
(including the Building); or (vii) the rent under such sublease or assignment is
not less than the rent to be paid by Tenant for such space under the Lease and
is not less than 85% of the rental rate then being offered by Landlord for
similar space in the Building. Notwithstanding anything contained herein to the
contrary, Tenant acknowledges that if the use of the Premises by any proposed
subtenant or assignee would require compliance by Landlord and the Building with
any current or future laws to a greater extent than that required prior to the
proposed occupancy by such subtenant or assignee, Landlord, at its sole option,
may refuse to grant such consent, unless, as an express condition thereof,
Tenant and/or such assignee or subtenant hears the entire cost of such greater
compliance. A sale by Tenant of all or substantially all of its assets or all or
substantially all of its stock if Tenant is a publicly traded corporation, a
merger of Tenant with another corporation, the transfer of twenty-five percent
(25%) or more of the stock in a corporate tenant whose stock is not publicly
traded, or transfer of twenty-five percent (25%) or more of the beneficial
ownership interests in a partnership tenant shall constitute an assignment
hereunder.
B. If this Lease is assigned, or if the Premises or any part thereof is
sublet or occupied by anybody other than Tenant, Landlord may, after default by
Tenant, collect the rent from the assignee, subtenant, or occupant and apply the
net amount collected to the rent herein reserved, but no such assignment,
subletting, occupancy, or collection shall be deemed an acceptance of the
assignee, subtenant or occupant as the Tenant hereof or a release of Tenant from
further performance by Tenant of covenants on the part of Tenant herein
contained. Consent by Landlord to any one assignment or sublease shall not in
any way be construed as relieving Tenant from obtaining the Landlord's express
written consent to any further assignment or sublease. Notwithstanding the
consent of Landlord to any sublease or assignment, Tenant shall not be relieved
from its primary obligations hereunder to Landlord, including, but not limited
to the payment of all Base Rent and Tenant's Pro Rata Share of increases in
Operating Expenses. Landlords consent to any requested sublease or assignment
shall not waive Landlord's right to refuse to consent to any other such request
or to terminate this Lease if such request is made, all
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as provided herein. If Tenant collects any rental or other amounts from a
subtenant or assignee in excess of the Base Rent and Tenant's Pro Rata Share of
increases in Operating Expenses for any monthly period, Tenant shall pay to
Landlord on a monthly basis, as and when Tenant receives the same, all such
excess amounts received by Tenant.
C. Notwithstanding anything contained in this Paragraph 13 to the
contrary, in the event Tenant requests Landlord's consent to sublet twenty-five
percent (25%) or more of the Premises or to assign twenty-five percent (25%) or
more of its interest in this Lease, Landlord shall have the right to; (i)
consent to such sublease or assignment in its sole discretion; (ii) refuse to
grant such consent in Landlord's sole discretion; or (iii) refuse to grant such
consent and terminate this Lease as to the portion of the Premises with respect
to which such consent was requested; provided, however, if Landlord refuses to
grant such consent and elects to terminate the Lease as to such portion of the
Premises, Tenant shall have the right within fifteen (15) days after notice of
Landlord's exercise of its right to terminate to withdraw Tenant's request for
such consent and remain in possession of the Premises under the terms and
conditions hereof. In the event the Lease is terminated as set forth herein,
such termination shall be effective as of the date set forth in a written notice
from Landlord to Tenant, which date shall in no event be more than thirty (30)
days following such notice.
D. Tenant hereby agrees that in the event it desires to sublease all or
any portion of the Premises or assign this Lease to any party, in whole or in
part, Tenant shall notify Landlord not less than ninety (90) days prior to the
date Tenant desires to sublease such portion of the Premises or assign this
Lease ("Tenant's Notice"). Tenant's Notice shall set forth the description of
the portion of the Premises to be so sublet or assigned and the terms and
conditions on which Tenant desires to sublet the Premises or assign this Lease.
Landlord shall have sixty (60) days following receipt of Tenant's Notice within
which to attempt to sublet the Premises or assign this Lease on Tenant's behalf
(or to exercise Landlord's rights pursuant to subparagraph C above if Tenant's
Notice discloses that twenty-five percent (25%) or more of the Premises is
involved). In the event that the space covered by Tenants Notice is leased by
Landlord, rent and other sums due from the subtenant in accordance with the
sublease shall be paid to Tenant for Tenant's account and Landlord shall have no
responsibility whatsoever for the observance and performance by such subtenant
of its obligations under its sublease with Tenant. Landlord shall be under no
obligation to find a prospective subtenant or assignee. If Landlord is unwilling
or unable to locate a subtenant or assignee (and, if applicable, declines to
exercise its rights pursuant to subparagraph C above), Landlord will notify
Tenant not later than sixty (60) days after the date Landlord receives Tenant's
Notice and Tenant shall be free to sublet the portion of the Premises in
question or assign the applicable portion of its interest in this Lease to any
third party on terms substantially identical to those described in Tenant's
Notice, subject to Landlord's consent as set forth in subparagraph A above. If
Tenant is unable to sublet said portion of the Premises or assign the applicable
portion of its interest in this Lease on said tents and conditions within one
hundred twenty (120) days following its original notice to Landlord, Tenant
agrees to reoffer the Premises to Landlord in accordance with the provisions
hereof prior to leasing or assigning the same to any third party.
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E. All documents utilized by Tenant to evidence any subletting or
assignment to which Landlord has consented shall be subject to prior approval by
Landlord or its counsel. Tenant shall pay on demand all of Landlord's costs and
expenses, including reasonable attorneys' fees, incurred in determining whether
or not to consent to any requested sublease or assignment and in reviewing and
approving such documentation.
F. Landlord and Tenant understand that notwithstanding certain
provisions to the contrary contained herein, a trustee or debtor in possession
under the Bankruptcy Code of the United States may have certain rights to assume
or assign this Lease. If a trustee in bankruptcy is entitled to assume control
over Tenant's rights under this Lease and assigns such rights to any third
party, the Base Rent to be paid hereunder by such party shall be increased to
the then current Base Rent (if greater than then being paid for the Premises)
which Landlord would charge for comparable space in the Building as of the date
of such third party's occupancy of the Premises. Landlord and Tenant further
understand that in any event Landlord is entitled under the Bankruptcy Code to
Adequate Assurance of future performance of the terms and provisions of this
Lease. For purposes of any such assumption or assignment, the parties hereto
agree that the term "Adequate Assurance" shall include at least the following:
(1) In order to assure Landlord that the proposed assignee
will have the resources with which to pay the rent called for herein, any
proposed assignee must have as demonstrated to Landlord's satisfaction a net
worth (as defined in accordance with generally accepted accounting principles
consistently applied) at least as great as the net worth of Tenant on the date
this Lease became effective increased by seven percent (7%), compounded
annually, for each year from the Lease Commencement Date through the date of the
proposed assignment. The financial condition and resources of Tenant were a
material inducement to Landlord in entering into this Lease.
(2) Any proposed assignee of this Lease must assume and agree
to be personally bound by the terms, provisions, and covenants of this Lease.
14. DAMAGE TO PROPERTY
Tenant shall neither hold nor attempt to hold Landlord liable for any
injury or damage, either proximate or remote, occurring through or caused by
fire, water, steam, or any repairs, alterations, injury, accident, or any other
cause to the Premises, to any furniture, fixtures, Tenant improvements, or other
personal property of Tenant kept or stored in the Premises, or in other parts of
the Building and/or the Shopping Center not herein demised, whether by reason of
the negligence or default of the owners or occupants thereof or any other person
or otherwise and the keeping or storing of all property of Tenant in the
Building, the Shopping Center and/or Premises shall be at the sole risk of
Tenant.
15. INDEMNITY OF LANDLORD
Tenant hereby agrees to indemnify, defend, and save Landlord, its
agents and employees harmless of and from all liabilities, losses, damages,
costs, or expenses, including attorneys' fees,
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fines, penalties, judgments, or obligations that the Landlord may sustain or on
account of injuries to the person or property of Landlord, its agents or
employees or of any other tenant in the Building or Shopping Center or to any
other person rightfully in said Building or Shopping Center for any purpose
whatsoever, where the injuries are caused by the negligence or misconduct by the
Tenant, Tenant's agents, servants, employees, subtenants, assignees or of any
other person entering upon the Premises under express or implied invitation of
Tenant or where such injuries are the result of the violation of the provisions
of this Lease by any of such persons. This indemnity shall survive termination
or expiration of this Lease.
16. SURRENDER AND NOTICE
Upon the expiration or other termination of the term of this Lease,
Tenant shall promptly quit and surrender to Landlord the Premises broom clean,
in good order and condition, ordinary wear and tear and loss by fire or other
casualty excepted unless due to the negligence of Tenant, and Tenant shall
remove all of its movable furniture and other effects and such. Alterations, as
Landlord shall require Tenant to remove as described in Paragraph 11 hereof. In
the event Tenant fails to vacate the Premises on a timely basis as required,
Tenant shall be responsible to Landlord for all costs incurred by Landlord as a
result of such failure, including, but not limited to, any amounts required to
be paid to third parties who were to have occupied the Premises.
17. INSURANCE
A. Subject to reimbursement as provided in Paragraph 5 herein, Landlord
shall maintain casualty insurance on the shell and core of the Building, on the
Premises to the extent of Building Standard tenant finish provided by Landlord
to tenants in the Building from time to time and in the Shopping Center, in such
amounts, from such companies, and on such terms and conditions, including loss
of rental insurance for such period of time as Landlord deems appropriate, from
time to time.
B. Tenant shall obtain and maintain throughout the terra of this Lease
"all risk" or "multi-peril" insurance on and for the full cost of replacement of
all of Tenant's property and betterments in the Premises, including, without
limitation all furniture, fixtures, personal property and all tenant finish in
excess of Building Standard items.
C. In addition to the above, Tenant shall obtain and maintain
throughout the term of this Lease a commercial general liability policy,
including protection against death, personal injury and property damage, issued
by an insurance company qualified to do business in the State of
Colorado, with
a single limit of not less than One Million Dollars ($1,000,000.00). All such
policies shall name Landlord as an additional insured. Each such policy shall
provide that the same may not be canceled or modified without at least twenty
(20) days' prior written notice to Landlord and any Mortgagee (as defined in
Paragraph 21). Prior to occupancy of the Premises, and thereafter from time to
time, Tenant shall deliver certificates evidencing that such insurance, as
required under this Paragraph 17, is in force and effect. The limits of said
insurance shall not, under any circumstances, limit the liability of Tenant
hereunder.
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D. Notwithstanding anything to the contrary contained herein, Landlord
and Tenant hereby mutually waive and release their respective rights of recovery
against each other, their officers, agents and employees occurring as a result
of the use and occupancy of the Premises for: (i) any loss of its property
capable of being insured against by "all risk" or "multi-peril" insurance
coverage whether carried or not, excluding from such waiver, in the case of the
Landlord, the deductible amounts under any applicable "all-risk" or
"multi-peril" insurance; (ii) all loss, cost, damage, or expense arising out of
or due to any interruption of business (regardless of the cause therefor),
increased or additional costs of operation of business or other costs or
expenses whether similar or dissimilar which are capable of being insured
against under business interruption insurance whether or not carried. Each party
shall apply to its insurers to obtain said waivers and obtain any special
endorsements, if required by their insurer to evidence compliance with the
aforementioned waiver and shall bear the cost therefor.
18. CASUALTY AND RESTORATION OF PREMISES
A. If the Premises or the Building shall be so damaged by fire or other
casualty as to render the Premises wholly untenantable and if such damage shall
be so great that a competent architect, in good standing, selected by Landlord
shall certify in writing to Landlord and Tenant within sixty (60) days of said
casualty that the Premises, with the exercise of reasonable diligence, cannot be
made fit for occupancy within one hundred eighty (180) working days from the
happening thereof, then this Lease shall cease and terminate from the date of
the occurrence of such damage and Tenant shall thereupon surrender to Landlord
the Premises and all interest therein hereunder and Landlord may reenter and
take possession of the Premises and remove Tenant therefrom. Tenant shall pay
rent, duly apportioned, up to the time of such termination of this Lease. If,
however, the damage shall be such that said architect shall certify within said
sixty (60) day period that the Premises can be made tenantable within said one
hundred eighty (180) day period, then, except as hereinafter provided, Landlord
shall repair the damage so done (to the extent of the Building Standard tenant
finish allowance then provided by Landlord to tenants in the Building) with all
reasonable speed.
B. If the Premises shall be slightly damaged by fire or other casualty,
but not so as to render the same wholly untenantable or to require a repair
period in excess of one hundred eighty (180) days, then, Landlord, after
receiving notice in writing of the occurrence of the casualty, except as
hereafter provided, shall cause the same to be repaired to the extent of the
base tenant finish per the then-current standard allowance provided by Landlord
to tenants in the Building with reasonable promptness. If the estimated repair
period as established in accordance with the provisions of subparagraph A above
exceeds one hundred eighty (180) days, then the provisions of subparagraph A
shall control notwithstanding the fact that the Premises are not wholly
untenantable.
C. In case the Building throughout shall be so injured or damaged,
whether by fire or otherwise (though said Premises may not be affected, or if
affected, can be repaired within said one hundred eighty (180) days), that,
within sixty (60) days after the happening of such injury, Landlord shall decide
not to reconstruct or rebuild said Building, then, notwithstanding anything
contained herein to the contrary, upon notice in writing to that effect given by
Landlord to Tenant
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within said sixty (60) days, Tenant shall pay the rent, properly apportioned up
to such date, this Lease shall terminate from the date of delivery of said
written notice, and both parties hereto shall be freed and discharged of all
further obligations hereunder.
D. Provided that the casualty is not the fault of Tenant, Tenant's
agents, servants, or employees, Tenant's rent shall xxxxx during any such period
of repair and restoration, but only to the extent of any recovery by Landlord
under its rental insurance related to the Premises in the same proportion that
the part of the Premises rendered untenantable bears to the whole.
19. CONDEMNATION
If the entire Premises or substantially all of the Premises or any
portion of the Building which shall render the Premises untenantable shall be
taken by right of eminent domain or by condemnation or shall be conveyed in lieu
of any such taking, then this Lease, at the option of either Landlord or Tenant
exercised by either party giving notice to the other of such termination within
thirty (30) days after such taking or conveyance, shall forthwith cease and.
terminate and the rent shall be duly apportioned as of the date of such taking
or conveyance. Tenant thereupon shall surrender the Premises and all interest
therein under this Lease to Landlord and Landlord may reenter and take
possession of the Premises or remove Tenant therefrom. In the event less than
all of the Premises shall be taken by such proceeding, Landlord shall promptly
repair the Premises as nearly as possible to its condition immediately prior to
said taking, unless Landlord elects not to reconstruct or rebuild as described
in subparagraph C of Paragraph 18 above. In the event of any such taking or
conveyance, Landlord shall receive the entire award or consideration for the
portion of the Building so taken.
20. DEFAULT BY TENANT
A. Each one of the following events is herein referred to as an "Event
of Default":
(1) Any failure by Tenant to pay the rent or any other
monetary sums required to be paid hereunder on the date such sums are due after
five (5) days' written notice by Landlord:
(2) Tenant shall vacate or abandon the Premises;
(3) This Lease or the estate of Tenant hereunder shall be
transferred to or shall pass to or devolve upon any other person or party
except in the manner set forth in Paragraph 13;
(4) This Lease or the Premises or any part thereof shall be
taken upon execution or by other process of law directed against Tenant or shall
be taken upon or subject to any attachment at the instance of any creditor of or
claimant against Tenant and said attachment shall not be discharged or disposed
of within fifteen (15) days after the levy thereof;
(5) The filing of any petition or the commencement of any case
or proceeding by the Tenant under any provision or chapter of the Federal
Bankruptcy Act, the Federal
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Bankruptcy Code, or any other federal or state law relating to insolvency,
bankruptcy, or reorganization or the adjudication that the Tenant is insolvent
or bankrupt or the entry of an order for relief under the Federal Bankruptcy
Code with respect to Tenant;
(6) The filing of any petition or the commencement of any case
or proceeding described in subparagraph (5) above against the Tenant, unless
such petition and all proceedings initiated thereby are dismissed within sixty
(60) days from the date of such filing; the filing of an answer by Tenant
admitting the allegations of any such petition; the appointment of or taking
possession by a custodian, trustee or receiver for all or any assets of the
Tenant, unless such appointment is vacated or dismissed within sixty (60) days
from the date of such appointment;
(7) The insolvency of the Tenant or the execution by the
Tenant of an assignment for the benefit of creditors; the convening by Tenant of
a meeting of its creditors, or any class thereof, for purposes of effecting a
moratorium upon or extension or composition of its debts; or the failure of the
Tenant generally to pay its debts as they mature;
(8) The admission in writing by Tenant, or any partner of
Tenant if Tenant is a partnership, that it is unable to pay his debts as they
mature or he is generally not paying his debts as they mature;
(9) Tenant shall fail to take possession of the Premises on
the date the Primary Lease Term commences;
(10) Tenant shall fail to perform any of the other agreements
terms, covenants, or conditions hereof on Tenant's part to be performed and such
non-performance shall continue for a period of thirty (30) days after written
notice thereof by Landlord to Tenant or, if such performance cannot be
reasonably had within such thirty (30) day period, Tenant shall not in good
faith have commenced such performance within such thirty (30) day period and
shall not diligently proceed therewith to completion; provided, however, if
Tenant fails to perform any of the other agreements, covenants or conditions
hereof repeatedly during the term of this Lease, Tenant shall no longer have the
opportunity to cure any subsequent failure and an Event of Default shall be
deemed to have occurred immediately upon such failure.
B. If any one or more Event of Default shall happen, then Landlord
shall have the right at Landlord's election, then or at any tine thereafter,
either:
(1) (a) Without demand or notice, to reenter and take
possession of the Premises or any part thereof and repossess the same as of
Landlord's former estate and expel Tenant and those claiming through or under
Tenant and remove the effects of both or either, without being deemed guilty of
any manner of trespass and without prejudice to any remedies for arrears of rent
or preceding breach of covenants or conditions. Should Landlord elect to
reenter, as provided in this subparagraph (1), or should Landlord take
possession pursuant to legal proceedings or pursuant to any notice provided for
by law, Landlord may, from time to time, without terminating this Lease, relet
the Premises or any part thereof, either alone or in conjunction with other
portions of the Building of which the Premises are a part, in Landlord's or
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Tenant's name but for the account of Tenant, for such term or terms (which may
be greater or less than the period which would otherwise have constituted the
balance of the term of this Lease) and on such conditions and upon such other
terms (which may include concessions of free rent and alteration and repair of
the Premises) as Landlord, in its absolute discretion, may determine and
Landlord may collect and receive the rents therefor. Landlord shall in no way be
responsible or liable for any failure to relet the Premises, or any part
thereof, or for any failure to collect any rent due upon such reletting. No such
reentry or taking possession of the Premises by Landlord shall be construed as
an election on Landlord's part to terminate this Lease unless a written notice
of such intention be given to Tenant. No notice from Landlord hereunder or under
a forcible entry and detainer statute or similar law shall constitute an
election by Landlord to terminate this Lease unless such notice specifically so
states. Landlord reserves the right following any such reentry and/or reletting
to exercise its right to terminate this Lease by giving Tenant such written
notice, in which event the Lease will terminate as specified in said notice.
(b) If Landlord elects to take possession of the Premises as
provided in this subparagraph (1) without terminating the Lease, Tenant shall
pay to Landlord (i) the rent and other sums as herein provided, which would be
payable hereunder if such repossession had not occurred, less (ii) the net
proceeds, if any, of any reletting of the Premises after deducting all of
Landlord's expenses incurred in connection with such reletting, including, but
without limitation, all repossession costs, brokerage commissions, legal
expenses, attorneys' fees, expenses of employees, alteration, remodeling, and
repair costs and expenses of preparation for such reletting. If, in connection
with any reletting, the new lease term extends beyond the existing term or the
premises covered thereby include other premises not part of the Premises, a fair
apportionment of the rent received from such reletting and the expenses incurred
in connection therewith, as provided aforesaid, will be made in determining the
net proceeds received from such reletting. In addition, in determining the net
proceeds from such reletting, any rent concessions will be apportioned over the
term of the new lease. Tenant shall pay such amounts to Landlord monthly on the
days on which the rent and all other amounts owing hereunder would have been
payable if possession had not been retaken and Landlord shall be entitled to
receive the same from Tenant on each such day; or
(2) To give Tenant written notice of intention to terminate this Lease
on the date of such given notice or on any later date specified therein and, on
the date specified in such notice, Tenant's right to possession of the Premises
shall cease and the Lease shall thereupon be terminated, except as to Tenant's
liability hereunder as hereinafter provided, as if the expiration of the term
fixed in such notice were the end of the term herein originally demised. In the
event this Lease is terminated pursuant to the provisions of this subparagraph
(2), Tenant shall remain liable to Landlord for damages in an amount equal to
the rent and other sums which would have been owing by Tenant hereunder for the
balance of the term had this Lease not been terminated less the net proceeds, if
any, of any reletting of the Premises by Landlord subsequent to such
termination, after deducting all Landlord's expenses in connection with such
reletting, including, but without limitation, the expenses enumerated above.
Landlord shall be entitled to collect such damages from Tenant monthly on the
days on which the rent and other amounts would have been payable hereunder if
this Lease had not been terminated and Landlord shall be entitled to receive the
same from Tenant on each such day. Alternatively, at the option of Landlord, in
the event this
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Lease is terminated, Landlord shall be entitled to recover forthwith against
Tenant as damages for loss of the bargain and not as a penalty an amount equal
to the worth at the time of termination of the excess, if any, of the amount of
rent reserved in this Lease for the balance of the term hereof over the then
Reasonable Rental Value of the Premises for the same period plus all amounts
incurred by Landlord in order to obtain possession of the Premises and relet the
same, including attorneys' fees, reletting expenses, alterations and repair
costs, brokerage commissions and all other like amounts. It is agreed that the
Reasonable Rental Value" shall be the amount of rental which Landlord can obtain
as rent for the remaining balance of the term.
C. Suit or suits for the recovery of the rents and other amounts and
damages set forth hereinabove may be brought by Landlord, from time to time, at
Landlord's election, and nothing herein shall be deemed to require Landlord to
await the date whereon this Lease or the term hereof would have expired had
there been no such default by Tenant or no such termination, as the case may be.
Each right and remedy provided for in this Lease shall be cumulative and shall
be in addition to every other right or remedy provided for in this Lease or now
or hereafter existing at law or in equity or by statute or otherwise, including,
but not limited to, suits for injunctive relief and specific performance. The
exercise or beginning of the exercise by Landlord of any one or more of the
rights or remedies provided for in this Lease or now or hereafter existing at
law or in equity or by statute or otherwise shall not preclude the simultaneous
or later exercise by Landlord of any or all other rights or remedies provided
for in this Lease or now or hereafter existing at law or in equity or by statute
or otherwise. All such rights and remedies shall be considered cumulative and
non-exclusive. All costs incurred by Landlord in connection with collecting any
rent or other amount and damages owing by Tenant pursuant to the provisions of
this Lease, or to enforce any provision of this Lease, shall also be recoverable
by Landlord from Tenant. Further if an action is brought pursuant to the terms
and provisions of the Lease, the prevailing party in such action shall be
entitled to recover from the other party any and all reasonable attorneys' fees
incurred by such prevailing party in connection with such action.
D. No failure by Landlord to insist upon the strict performance of any
agreement, term, covenant or condition hereof or to exercise any right or remedy
consequent upon a breach thereof and no acceptance of full or partial rent
during the continuance of any such breach shall constitute a waiver of any such
breach or of such agreement, term, covenant, or condition. No agreement, term,
covenant, or condition hereof to be performed or complied with by Tenant and no
breach thereof shall be waived, altered, or modified, except by written
instrument executed by Landlord. No waiver of any breach shall affect or alter
this Lease but each and every agreement, term, covenant, and condition hereof
shall continue in full force and effect with respect to any other then existing
or subsequent breach thereof. Notwithstanding any termination of this Lease, the
same shall continue in force and effect as to any provisions which require
observance or performance by Landlord or Tenant subsequent to such termination.
E. Nothing contained in this Paragraph 20 shall limit or prejudice the
right of Landlord to prove and obtain as liquidated damages in any bankruptcy,
insolvency, receivership, reorganization, or dissolution proceeding an amount
equal to the maximum allowed by any statute or rule of law governing such a
proceeding and in effect at the time when such damages are to be proved, whether
or not such amount be greater, equal to, or less than the amounts
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recoverable, either as damages or rent, referred to in any of the preceding
provisions of this Paragraph. Notwithstanding anything contained in this
Paragraph to the contrary, any such proceeding or action involving bankruptcy,
insolvency, reorganization, arrangement, assignment for the benefit of
creditors, or appointment of a receiver or trustee, as set forth above, shall be
considered to be an Event of Default only when such proceeding, action, or
remedy shall be taken or brought by or against the then holder of the leasehold
estate under this Lease.
F. Any rents or other amounts owing hereunder which are not paid within
five (5) days after the date they are due shall thereafter bear interest at the
rate of three percentage points over the Prime Rate then being charged by
Commercial Federal Savings Bank, or its successor, to its most credit-worthy
customers on an unsecured basis for short term loans (the "Prime Rate") or the
highest rate permitted by applicable usury law, whichever is lower, until paid.
Further, in the event any rents or other amounts owing hereunder are not paid
within five (5) days after written notice, Landlord and Tenant agree that
Landlord will incur additional administrative expenses, the amount of which will
be difficult if not impossible to determine. Accordingly, Tenant shall pay to
Landlord an additional, one-time late charge for any such late payment in the
amount of five percent (5%) of such payment. Any amounts paid by Landlord to
cure any defaults of Tenant hereunder, which Landlord shall have the right but
not the obligation to do, shall, if not repaid by Tenant within five (5) days of
demand by Landlord, thereafter bear interest at the rate of three percentage
points over the Prime Rate or the highest rate permitted by applicable usury
law, whichever is lower, until paid.
G. Tenant and Landlord hereby waive (to the extent allowed by law) any
and all rights to a trial by jury in suit or suits brought to enforce any
provision of this Lease or arising out of or concerning the provisions of this
Lease.
H. Subject to any prior purchase money security interests granted by
Tenant, Tenant hereby conveys to Landlord all of Tenants property situated on
the Premises as security for the payment of all rents and other amounts due or
to become due hereunder, and Tenant shall execute such documents as Landlord may
reasonably require to evidence and perfect Landlord's security interest therein.
For this purpose, this Lease shall be considered to be a security agreement
covering such personal property and Landlord, upon the occurrence of an Event of
Default under this Paragraph 20 hereof, may exercise any rights of a secured
party under the Uniform Commercial Code of the State of
Colorado. Such security
interest shall be prior and superior to any other security interest except an
existing purchase money security interest. Tenant's property shall not be
removed from the Premises without the consent of Landlord, except to the extent,
such property is replaced with an item of equal or greater value (and Landlord's
security interest shall extend to such replacements and to the proceeds of all
such property).
21. DEFAULT BY LANDLORD
In the event of any alleged default on the part of Landlord hereunder,
Tenant shall give written notice to Landlord in the manner herein set forth and
shall afford Landlord a reasonable opportunity to cure any such default. Notice
to Landlord of any such alleged default shall be
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ineffective unless notice is simultaneously delivered to any holder of a
Mortgage and/or Trust Deed affecting all or any portion of the Shopping Center
("Mortgagees"), as hereafter provided. Tenant agrees to give all Mortgagees, by
certified mail, return receipt requested, a copy of any notice of default served
upon Landlord, provided that prior to such notice Tenant has been notified, in
writing (by way of notice of Assignment of Rents and Leases, or otherwise), of
the address of such Mortgagees. Tenant farther agrees that if Landlord shall
have failed to cure such default within the time provided for in this Lease,
then the Mortgagees shall have an additional thirty (30) days within which to
cure such default or, if such default cannot be cured within that time, then
such additional time as may be necessary, if, within such thirty (30) days, any
Mortgagee has commenced and is diligently pursuing the remedies necessary to
cure such default (including, but not limited to, commencement of foreclosure
proceedings, if necessary to effect such cure), in which event this Lease shall
not be terminated while such remedies are being so diligently pursued. In no
event will Landlord or any Mortgagee be responsible for any consequential
damages incurred by Tenant as a result of any default, including, but not
limited to, lost profits or interruption of business as a result of any alleged
default by Landlord hereunder.
22. SUBORDINATION AND ATTORNMENT
A. This Lease, at Landlord's option, shall be subordinate to any
mortgage or deed of trust (now or hereafter placed upon the Building and/or
Shopping Center, or any portion thereof), including any amendment, modification,
or restatement of any of such documents, and to any and all advances made under
any mortgage or deed of trust and to all renewals, modifications,
consolidations, replacements, and extensions thereof. Tenant agrees that with
respect to any of the foregoing documents, no documentation, other than this
Lease, shall be required to evidence such subordination.
B. If any holder of a mortgage or deed of trust shall elect to have
this Lease superior to the lien of the holder's mortgage or deed of trust and
shall give written notice thereof to Tenant, this Lease shall be deemed prior to
such mortgage or deed of trust, whether this Lease is dated prior or subsequent
to the date of said mortgage or deed of trust or the date of recording thereof.
C. In confirmation of such subordination or superior position, as the
case may be, Tenant agrees to execute such documents as may be required by
Landlord or its Mortgagee to evidence the subordination of its interest herein
to any of the documents described above, or to evidence that this Lease is
prior to the lien of any mortgage or deed of trust, as the case may be, and
failing to do so within ten (10) days after written demand.
D. Tenant hereby agrees to attorn to all successor owners of the
Building, whether or not such ownership is acquired as a result of a sale,
through foreclosure of a deed of trust or mortgage, or otherwise.
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23. HOLDING OVER: TENANCY MONTH-TO-MONTH
If, after the expiration of this Lease, Tenant shall remain in
possession of the Premises and continue to pay rent, and Landlord shall accept
such rent, without any express written agreement as to such holding over, then
such holding over shall be deemed and taken to be a holding upon a tenancy from
month-to-month, subject to all the terms and conditions hereof on the part of
Tenant to be observed and performed and at a monthly rent equivalent to one
hundred fifty percent (150%) of the monthly installments paid by Tenant
immediately prior to such expiration or the Current Market Rental Rate for the
Premises, whichever is greater. All such rent shall be payable in advance on the
same day of each calendar month. Such month-to-month tenancy may be terminated
by either party by not less than ten (10) days' notice prior to the end of any
such monthly period. Nothing contained herein shall be construed as obligating
Landlord to accept any rental tendered by Tenant after the expiration of the
term hereof or as relieving Tenant of its liability pursuant to Paragraph 16 and
any holdover without Landlord's consent shall be deemed a default hereunder
entitling Landlord to all of its rights and remedies set forth in Paragraph 20
above, including, without limitation, its right to recover consequential damages
resulting from said holdover.
24. PAYMENTS AFTER TERMINATION
No payments of money by Tenant to Landlord after the termination of
this Lease, in any manner, or after giving of any notice (other than a demand
for payment of money) by Landlord to Tenant shall reinstate, continue, or extend
the term of this Lease or affect any notice given to Tenant prior to the payment
of such money, it being agreed that after the service of notice or the
commencement of a suit or other final judgment granting Landlord possession of
the Premises, Landlord may receive and collect any sums of rent due or any other
sums of money due under the terms of this Lease or otherwise exercise Landlord's
rights and remedies hereunder and the payment of such sums of money, whether as
rent or otherwise, shall not waive said notice or in any manner affect any
pending suit or judgment theretofore obtained.
25. STATEMENT OF PERFORMANCE
Tenant agrees at any time and from time to time, upon not less than ten
(10) days' prior written request by Landlord, to execute, acknowledge, and
deliver to Landlord a statement in writing certifying that this Lease is
unmodified and in fall force and effect (or, if there have been modifications,
that the same is in fall force and. effect as modified and stating the
modifications), that there' have been no defaults thereunder by Landlord or
Tenant (or, if there have been defaults, setting forth the nature thereof), the
date to which the rent and other charges have been paid in advance, if any, and
such other information as Landlord may request. It is intended that any such
statement delivered pursuant to this Paragraph may be relied upon by any
prospective purchaser of all or any portion of Landlord's interest herein or a
holder of any mortgage or deed of trust encumbering the Shopping Center.
Tenant's failure to deliver such statement within such time shall be conclusive
upon Tenant that: (i) this Lease is in full force and effect) without
modification except as may be represented by Landlord; (ii) there are no uncured
defaults in Landlord's performance; and (iii) not more than one (1) month's rent
has been paid in advance. Further, upon request, Tenant will supply to Landlord
a corporate or partnership resolution, as
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the case may be, certifying that the party signing said statement of Tenant is
properly authorized to do so.
26. MISCELLANEOUS
A. The term "Landlord" as used in this Lease, so far as covenants or
obligations on the part of Landlord are concerned, shall be limited to mean and
include only the owner or owners of the Building at the time in question and, in
the event of any transfer or transfers of the title thereto, Landlord herein
named (and in the case of any subsequent transfers or conveyances, the then
grantor) shall be automatically released, from and after the date of such
transfer or conveyance, of all liability as respects the performance of any
covenants or obligations on the part of Landlord contained in this Lease
thereafter to be performed, provided that any funds in the hands of Landlord or
the then grantor at the time of such transfer in which Tenant has an interest
shall be turned over to the grantee and any amount then due and payable to
Tenant by Landlord or the then grantor under any provisions of this Lease shall
be paid to Tenant.
B. The termination or mutual cancellation of this Lease shall not work
a merger, and such termination or mutual cancellation shall, at the option of
Landlord, either terminate all subleases and subtenancies or operate as an
assignment to Landlord of any or all such subleases or subtenancies.
C. The Tenant agrees that, for the purposes of completing or making
repairs or alterations in any portion of the Building, Landlord may use one or
more of the street entrances, the halls, passageways, and elevators of the
Building.
D. This Lease shall be construed as though the covenants herein between
Landlord and Tenant are independent and not dependent and Tenant shall not be
entitled to any setoff of the rent or other amounts owing hereunder against
Landlord if Landlord fails to perform its obligations set forth herein;
provided, however, the foregoing shall in no way impair the right of Tenant to
commence a separate action against Landlord for any violation by Landlord of the
provisions hereof so long as notice is first given to Landlord and any holder of
a mortgage or deed of trust covering the Building and/or Shopping Center or any
portion thereof and an opportunity granted to Landlord and such holder to
correct such violation as provided in Paragraph 21 above.
E. 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 a
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.
F. The caption of each paragraph is added as a matter of convenience
only and shall be considered of no effect in the construction of any provision
or provisions of this Lease.
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G. Except as herein specifically set forth, all terms, conditions, and
covenants to be observed and performed by the parties hereto shall be applicable
to and binding upon their respective heirs, administrators, executors, and
assigns. The terms, conditions, and covenants hereof shall also be considered to
be covenants running with the land to the fullest extent permitted by law.
H. Tenant and the party executing this Lease on behalf of Tenant
represent to Landlord that such party is authorized to do so by requisite action
of the board of directors or partners, as the case may be, and agree, upon
request, to deliver to Landlord a resolution or similar document or opinion of
counsel to that effect.
I. If there are more than one entity or person which or who are the
Tenant under this Lease, the obligations imposed upon Tenant under this Lease
shall be joint and several.
J. No act or thing done by Landlord or Landlord's agents during the
term hereof, including, but not limited to, any agreement to accept surrender of
the Premises or to amend or modify this Lease, shall be deemed to be binding on
Landlord, unless such act or thing shall be by a partner or officer of Landlord,
as the case may be, or a party designated in writing by Landlord as so
authorized to act The delivery of keys to Landlord, or Landlord's agents,
employees, or officers shall not operate as a termination of this Lease or a
surrender of the Premises. No payment by Tenant or receipt by Landlord of a
lesser amount than the monthly rent and all other amounts owing, as herein
stipulated, shall be deemed to be other than on account of the earliest
stipulated rent or other amounts nor shall any endorsement or statement on any
check or any letter accompanying any check or payment as rent be deemed an
accord and satisfaction and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such rent or pursue any
other remedy available to Landlord.
K. Landlord shall have the right at any time to change the name of the
Building and/or Shopping Center, to increase the size of the Building and/or
Shopping Center by adding additional real property thereto, to construct other
buildings or improvements on any portion of the Building and/or Shopping Center
or to change the location and/or character of or to make alterations of or
additions to the Building and/or Shopping Center. In the event any such
additional buildings are constructed or Landlord increases the size of the
Building and/or Shopping Center, Landlord and Tenant shall execute an Amendment
to Lease which incorporates such modifications, additions, and adjustments to
Tenant's Pro Rata Share, if necessary. Tenant shall not use the Building's
and/or Shopping Center's name for any purpose other than as a part of its
business address. Any use of such name in the designation of Tenant's business
shall constitute a default under this Lease.
L. Tenant covenants and agrees that no diminution of light, air, or
view of or from the Building or any other building (whether or not constructed
or owned by Landlord) shall entitle Tenant to any reduction of rent or other
charges under this Lease, result in any liability of Landlord to Tenant, or in
any way affect this Lease or Tenant's obligations hereunder.
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M. Notwithstanding anything to the contrary contained herein,
Landlord's liability under this Lease shall be limited to Landlord's interest in
the Building.
N. Tenant acknowledges and agrees that it has not relied upon any
statements, representations, agreements, or warranties by Landlord, its agents
or employees, except such as are expressed herein and that no amendment or
modification of this Lease shall be valid or binding unless expressed in writing
and executed by the parties hereto in the same manner as the execution of this
Lease.
O. Landlord agrees to maintain certain parking areas for the
non-exclusive use of Tenant, its employees and invitees. Such parking areas
shall be considered to be Common Area and Landlord shall be entitled to
reimbursement for all costs incurred in the operation, maintenance and repair of
such Common Areas Tenant shall park all vehicles used by Tenant and its
employees only in those areas which may be designated by Landlord from time to
time for this purpose, if Landlord in its sole discretion chooses to make such
designation. Tenant accepts the responsibility of monitoring that Tenant's
employees park only in designated areas. Within five (5) days after receipt of
written notice from Landlord, Tenant agrees to furnish Landlord the automobile
descriptions and license numbers of Tenant's and its employees vehicles. If
Tenant shall fail to obtain such an agreement and deliver it to Landlord or its
agent, Tenant shall assume all obligations set forth in this subparagraph for
such user. Landlord shall have the right to increase or reduce the Common Areas,
including parking, to change the nature or purpose thereof, to rearrange the
parking spaces and/or the improvements situated in Common Areas and may limit
certain spaces for certain users, for example, visitors or the disabled.
Landlord shall be entitled to make such changes in and to the Common Areas which
Landlord, in its sole discretion, may deem to be desirable, provided, however,
that Tenant's access to the Premises shall not be unreasonably impaired.
Landlord shall not be liable to Tenant or its employees arising out of lack of
availability of parking space for Tenant, its employees or invitees. Neither
Landlord, its agents or employees shall be liable for any damage, fire, theft or
loss to vehicles or other properties or persons while in the parking areas
whether caused by theft, collision, moving vehicle, explosion, fire or any other
activity or occurrence in such parking area. Tenant and/or its designated users
of parking spaces assume the risk of such loss or damage and shall indemnify,
defend and hold Landlord, its agents and employees harmless from any and all
claims against and damages incurred by Landlord, its agents and employees
arising from Tenant's or its designated users' use of parking spaces, including
all costs, attorneys' fees, expenses and liabilities arising out of any such
claim or action.
P. Tenant agrees to make such modification and amendments of this Lease
as may hereafter be required to conform to any lender's requirements, so long as
such modifications or amendments will not increase Tenant's obligations
hereunder or materially alter its rights as set forth herein.
Q. Submission of this instrument for examination or signature by Tenant
does not constitute a reservation of or an option for lease, and it is not
effective as a lease or otherwise until execution and delivery by both Landlord
and Tenant.
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R. This Lease shall be governed by and interpreted in accordance with
the laws of the State of
Colorado.
S. As part of the services Landlord provides hereunder, Landlord may
elect to provide a concierge or security guard for more efficient operation of
the Building, and the cost therefor shall be included as an Operating Expense.
Landlord is not obligated to provide such services at any time or for any length
of time. Tenant expressly acknowledges that Landlord has not represented to
Tenant that the Building is a secure building. Landlord shall not be responsible
for the quality of any services which may be provided hereunder or for damage or
injury to Tenant, its agents, employees, invitees or others or its betterments
contained in the Building and/or Shopping Center or the Premises due to the
failure, action or inaction of such persons.
T. Tenant shall not record this Lease or a memorandum hereof. In the
event that Tenant violates this provision, this Lease shall be null, void and of
no further force and effect, at Landlord's option, except that Tenant shall be
liable to Landlord, as liquidated damages, in the amount of the remaining rental
to be paid hereunder.
27. AUTHORITIES FOR ACTION AND NOTICE
A. Except as herein otherwise provided, Landlord may act in any manner
provided for herein by and through Landlord's building manager or any other
person who shall from time to time be designated in writing.
B. All notices, demands, statements or communications required or
permitted to be given to Landlord hereunder shall be in writing and shall be
deemed duly served when delivered personally to any officer of Landlord (or a
partner of Landlord if Landlord is a partnership or to Landlord individually if
Landlord is a sole proprietor), or when deposited in the United States mail,
postage prepaid, certified or registered, return receipt requested, addressed to
Landlord's Notice Address or at the most recent address of which Landlord has
notified Tenant in writing. All notices, demands, statements or communications
required to be given to Tenant hereunder shall be in writing and shall be deemed
duly served when delivered personally to any officer of Tenant (or a partner of
Tenant if Tenant is a partnership or to Tenant individually if Tenant is a sole
proprietor) or manager of Tenant whose office is in the Building, when deposited
in the United States mail, postage prepaid, certified or registered, return
receipt requested, addressed to Tenant at the Premises, or, prior to Tenant's
taking possession of the Premises, to the address known to Landlord as Tenant's
principal office address. Either party shall have the right to designate in
writing, served as above provided, a different address to which notice is to be
mailed. The foregoing shall in no event prohibit notice from being given as
provided in Rule 4 of Colorado Rules of Civil Procedure, as the same may be
amended from time to time.
28. RULES AND REGULATIONS
It is further agreed that the rules and regulations set forth on
Exhibit E attached hereto shall be and are hereby made a part of this Lease and
Tenant agrees that Tenant's employees and agents or any others permitted by
Tenant to occupy or enter the Premises will at all times abide
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by said rules and regulations. A breach of any of such rules or regulations
shall be deeded an Event of Default under this Lease and Landlord shall have all
remedies as set forth in Paragraph 20 hereof.
30. BROKERAGE
Tenant hereby represents and warrants that Tenant has not employed any
broker in regard to this Lease and that Tenant has no knowledge of any broker
being instrumental in bringing about this Lease transaction, except Xxxxxxxxx
Xxxx Company who has acted as Landlord's leasing agent. Tenant shall indemnify
Landlord against any expense incurred by Landlord as a result of any claim for
brokerage or other commissions made by any other broker, finder, or agent,
whether or not meritorious, employed by Tenant or claiming by, through, or under
Tenant. Tenant acknowledges that Landlord shall not be liable for any
representations by such brokers regarding the Premises, Building, Shopping
Center, or this lease transaction.
31. TIME OF ESSENCE
Time is of the essence herein.
32. EXHIBITS
All exhibits attached hereto are made a part hereof and incorporated
herein by reference.
EXHIBITS TO LEASE
X Exhibit A Floor Plan of Premises
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X Exhibit A-I Depiction of Retail Center and Office Bldgs.
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X Exhibit B Legal Description of Real Property
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Exhibit C Work Letter
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Exhibit D Commencement Certificate
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X Exhibit E Rules and Regulations
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Exhibit F Guaranty
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X Exhibit G Option to Extend
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Exhibit H Lease Addendum
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IN WITNESS WHEREOF, the parties hereto have caused this Lease to be executed the
day and year first above written.
COLUMBINE WEST LLC, By: /s/ Xxxxx X. Xxxx
---------------------------------
a Colorado limited liability company
Its: Chief Operating Officer
---------------------------------
By: Attest:
----------------------------------
Authorized Representative
By:
---------------------------------
"Landlord"
Its: /s/ EVP
---------------------------------
"Tenant"
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State of Colorado )
) ss.
County of Boulder )
On this the 10th day of July, 2001, before me, Xxxxxxx Xxxxx, the undersigned
officer, personally appeared Xxxxx X. Xxxx, known to me (or satisfactorily
proven) to be the person whose name is subscribed to the within instrument and
acknowledged that he/she executed the same for the purposes therein contained.
In witness whereof, I hereunto set my hand and official seal.
/s/ Xxxxxxx Xxxxx
---------------------------------
Notary Public
My commission expires: August 6, 2001.
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EXHIBIT E TO LEASE
RULES AND REGULATIONS
1. The sidewalks, entries, passages, corridors, stairways and
elevators of the Building Complex shall not be obstructed by Tenant or Tenant's
agents or employees or used for any purpose other than ingress and egress to and
from the Premises, it being understood and agreed that such access may be
obtained only via the elevators in the lobby of the Building.
2. Furniture, equipment, or supplies will be moved in or out of the
Building only upon the elevator designated by Landlord and then only during such
hours and in such manner as may be reasonably prescribed by Landlord. The
Landlord shall have the right to approve or disapprove the movers or moving
company employed by Tenant and Tenant shall cause said movers to use only the
loading facilities and elevator designated by Landlord. In the event Tenant's
movers damage the elevator or any part of the Building, Tenant shall forthwith
pay to Landlord the amount required to repair said damage.
3. No safe or article, the weight of which may, in the reasonable
opinion of Landlord, constitute a hazard or damage to the Building or the
Building's equipment, shall be moved into the Premises. Safes and other
equipment, the weight of which is not excessive, shall be moved into, from, or
about the Building only during such hours and in such manner as shall be
prescribed by Landlord and Landlord shall have the right to designate the
location of such articles in the Premises.
4. During the entire term of this Lease, Tenant shall, at Tenant's
expense, install and maintain under each arid every caster chair a chair pad to
protect the carpeting.
5. No sign, advertisement, or notice shall be inscribed, painted, or
affixed on any part of the inside or outside of the Building unless of such
color, size, and style and in such place upon or in the Building as shall be
first designated by Landlord in writing but there shall be no obligation or duty
on Landlord to allow any sign, advertisement or notice to be inscribed, painted,
or affixed on any part of the inside or outside of the Building. A directory in
a conspicuous place, with names of tenants, not to exceed one (1) line, will be
provided by Landlord. Any necessary revision in the directory will be made by
Landlord at Tenant's expense within a reasonable time after notice from Tenant
of the change making the revision necessary No furniture shall be placed in
front of the Building or in any lobby or corridor of the Building (whether
included wholly within the Premises, or otherwise), without the prior written
consent of Landlord. Landlord shall have the right to remove all non-permitted
signs and furniture, without notice to Tenant, at the expense of Tenant.
6. Tenant shall not do or permit anything to be done in the Premises or
bring or keep anything therein which would in any way increase the rate of fire
insurance on the Building or on property kept therein, constitute a nuisance or
waste, obstruct or interfere with the rights of other tenants or in any way
injure or annoy them, or conflict with the laws relating to fire or with any
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regulations of the fire department, fire insurance underwriters, or with any
insurance policy upon the Building or any part thereof, or conflict with any of
the rules or ordinances of the Department of Health of the City and County where
the Building is located.
7. Tenant shall not employ any person or persons other than the janitor
of Landlord for the purpose of cleaning or taking care of the Premises, without
the prior written consent of Landlord. Landlord shall be in no way responsible
to Tenant for any loss of property from the premises, however occurring, or for
any damage done to Tenant's furniture or equipment by the janitor or any of the
janitor's staff or by any other person or persons whomsoever. The janitor of the
Building may at all times keep a passkey and other agents of Landlord shall at
all times be allowed admittance to the Premises.
8. Water closets and other water fixtures shall not be used for any
purpose other than that for which they were intended and any damage resulting to
them from misuse on the part of Tenant or Tenant's agents or employees shall be
paid for by Tenant. No person shall waste water by tying back or wedging the
faucets or in any other manner.
9. No animals shall be allowed in the offices, halls, corridors, and
elevators in the Building, except those guiding disabled persons. No person
shall disturb the occupants of the Building or adjoining buildings or premises
by the use of any radio, sound equipment, or musical instrument or by the making
of loud or improper noises.
10. Bicycles or other vehicles shall not be permitted in the offices,
halls, corridors, and elevators in the Building nor shall any obstruction of
sidewalks or entrances of the Building be permitted.
11. Tenant shall not allow anything to be placed on the outside of the
Building, nor shall anything be thrown by Tenant or Tenant's agents or employees
out of the windows or doors or down the corridors, elevator shafts, or
ventilating ducts or shafts of the Building. Tenant, except in case of fire or
other emergency, shall not open any outside window.
12. No additional lock or locks shall be placed by Tenant on any door
in the Building, unless written consent of Landlord shall first have been
obtained. Tenant shall have no right to rekey the Premises. Two keys to the
Premises and the toilet rooms, if locked by Landlord, will be furnished by
Landlord and neither Tenant nor Tenant's agents or employees shall have any
duplicate keys made. Landlord shall supply Tenant with such additional keys as
Tenant may require at Tenant's sole cost and expense. At the termination of this
tenancy, Tenant shall promptly return to Landlord all keys to offices, toilet
rooms, or vaults.
13. No window shades, blinds, screens, draperies, or other window
coverings will be attached or detached by Tenant without Landlord's prior
written consent Tenant agrees to abide by Landlord's rules with respect to
maintaining uniform curtains, draperies and linings, or blinds at all windows
and hallways.
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14. If any Tenant desires telegraphic, telephonic, or other electric
connections, Landlord or Landlord's agents will direct the electricians as to
where and how the wires may be introduced. Without such directions, no boring or
cutting for wires will be permitted. Any such installation and connection shall
be made at Tenant's expense.
15. Tenant shall not install or operate any steam or gas engine or
boiler or carry on any mechanical business in the Premises. The use of oil, gas,
or inflammable Liquids for heating, lighting, or any other purpose is expressly
prohibited. Explosives or other articles deemed extra hazardous shall not be
brought into the Building.
16. Any painting or decorating, as may be agreed to be done by and at
the expense of Landlord, shall be done during regular weekday working hours.
Should Tenant desire such work on Saturdays, Sundays, Legal Holidays, or outside
of regular working boats, Tenant shall pay for the extra cost thereof.
17. Except as permitted by Landlord, Tenant shall not xxxx upon, paint
signs upon, cut, drill into, drive nails or screws into, or in any way deface
the walls, ceilings, partitions, or floors of the Premises or of the Building
and any defacement, damage, or injury caused by Tenant or Tenant's agents or
employees shall be paid for by Tenant.
18. Landlord shall at all times have the right, by Landlord's officers
or agents, to enter the Premises and show the same to persons wishing to lease
them.
19. Landlord reserves the right to restrict, control or prohibit
canvassing, soliciting, and peddling within the Building Complex. Tenant shall
not grant any concessions, licenses or permission for the sale or taking orders
for food or services or merchandising on the Premises nor install or permit the
installation or use of any machinery or equipment for dispensing goods, foods or
beverages in the Building Complex, except beverage machines intended for the use
only by Tenant's employees, nor permit the preparation, serving, distribution or
delivery of food or beverage in the Premises, except for the warming of
pre-prepared food by Tenant's employees in microwave ovens.
Tenant agrees that Landlord may amend, modify, delete, or add new and additional
reasonable rules and regulations of the use and care of the Premises and the
Building Complex. Tenant agrees to comply with all such rules and regulations
upon notice to Tenant from Landlord thereof. In the event of any breach of any
of the rules and regulations herein set forth or any amendments, modifications,
or additions thereto, Landlord shall have all remedies in this Lease provided
for in the Event of Default by Tenant.
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EXHIBIT G
TO LEASE
OPTION TO EXTEND
As additional consideration for the covenants of Tenant hereunder,
Landlord hereby grants unto Tenant an option (the "Option") to extend the Lease
Term of the Lease for one (1) term of six (6) month each (the "Option Term").
The Option shall apply to all space then under the Lease at the time the Option
Term would commence, and shall be on the following terms and conditions:
1. Written notice of Tenant's interest in exercising the Option shall
be given to Landlord no earlier than twelve (12) months and no later than sixty
(60) days prior to the expiration of the Lease Term ("Tenant's Notice"). Not
later than thirty (30) days after receiving Tenant's Notice, Landlord shall give
to Tenant notice of the terms, conditions and rental rate applicable during the
Option Term, in accordance with Section 5 below ("Landlord's Notice).
2. Tenant shall have fifteen (15) days following Tenant's receipt of
Landlord's Notice within which to exercise the Option by delivering written
notice of such exercise to Landlord under the toxins, conditions and rental rate
set forth in landlord's Notice. If Tenant timely exercises the Option, the Lease
shall be deemed extended; provided, however, at the request of either party, the
parties shall execute an amendment to the Lease setting forth the terms of the
extension.
3. Unless Landlord is timely notified by Tenant in accordance with
Sections 1 and 2 above, it shall be conclusively deemed that Tenant does not
desire to exercise the Option, and the Lease shall expire in accordance with its
terms, at the end of the Lease Term.
4. Tenant's right to exercise its Option shall be conditioned on: (i)
Tenant not being in default under the Lease at the time of exercise of the
Option or at the time of the commencement of the Option Term; and (ii) Tenant
not having subleased more than twenty-five percent (25%) of the Premises or
assigned its interest under the Lease as of the commencement of the Option Term
or having vacated more than twenty-five percent (25%) of the Premises.
5. The Option granted hereunder shall be upon the terms and conditions
set forth in the Lease (as long as no broker fees/commissions or leasing
expenses are borne by Landlord).
6. After exercise of, or failure to timely exercise, the Option above
described, there shall be no further rights on the part of Tenant to extend the
term of the Lease.
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