LEASE AGREEMENT
EXHIBIT
10.24
THIS LEASE AGREEMENT (the
“Lease”), made as of the 25th day of
August, 2006, by and between RE
HILL PROPERTIES – LOUISVILLE, LLC, a Colorado limited liability company
and QUARTZ MOUNTAIN PROPERTIES,
LLC, a Colorado limited liability company (herein jointly called “Landlord”), and SPACEDEV, INC., a Colorado
corporation, (herein called “Tenant”).
WITNESSETH:
ARTICLE
I
DEFINITIONS,
GRANT, TERM
Section
1.01. DEFINITIONS. In addition to
the terms defined elsewhere in this Lease, the following terms shall have the
following meanings:
“Base Rent” The initial Base
Rent shall be Nine and 65/100 Dollars ($9.65) per square foot of Rentable Area
which shall be initially $698,891.60 per annum or $58,240.97 per
month. Such Base Rent shall increase three percent (3%) on each
anniversary of the Rent Commencement Date as follows:
PERIOD
$/YEAR
$/MONTH
February
1, 2007 – January 31,
2008 $698,891.60 $58,240.97
February
1, 2008 - January 31,
2009 $719,858.35
$59,988.20
February
1, 2009 – January 31,
2010 $741,454.10 $61,787.84
February
1, 2010 – January 31,
2011 $763,697.72 $63,641.48
February
1, 2011 – January 31,
2012 $786,608.65 $65,550.72
February
1, 2012 – January 31,
2013 $810,206.91 $67,517.24
February
1, 2013 – January 31,
2014 $834,513.12 $69,542.76
February
1, 2014 – January 31,
2015 $859,548.51 $71,629.04
February
1, 2015 – January 31,
2016 $885,334.97 $73,777.91
February
1, 2016 – January 31,
2017 $911,895.02 $75,991.25
“Building” The building having
a physical address of 1722 Boxelder, Xxxxxxxxxx, Xxxxxxxx 00000, consisting
of 92,365 rentable square feet.
1
“Common Areas” All
areas and facilities outside the Premises and within the exterior boundary line
of the Property, including interior utility raceways (to the extent that there
is any other tenant in the Building), that are designated by Landlord from time
to time for the general non-exclusive use of Landlord, Tenant and other tenants
of the Property, including, without limitation, restrooms, lobby areas,
entrances, corridors, stairwells, elevators, parking areas, loading areas, trash
areas, road ways, walkways, driveways and landscaped areas.
“Expansion Space” All space
within the building located west of the demising line depicted on the floor plan
attached hereto as Exhibit A, consisting of a stipulated 19,941 rentable square
feet.
“Guarantor” N/A.
“Landlord’s Broker” Keys
Commercial Real Estate, LLC.
“Landlord Payment
Address”
Hill
Properties
Attention:
Xxx Xxxx
0000 Xxx
Xxxxxx #000
Xx Xxxxx,
XX 00000
“Lease Commencement Date”
Mutual execution of this Lease by Landlord and Tenant.
“Lease Expiration Date” January
31, 2017, or as such date may be extended pursuant to Section 1.03
hereof.
“Premises” All space within the
Building which is located east of the demising line depicted on the floor plan
attached hereto as Exhibit A, consisting of a stipulated 72,424 rentable square
feet (“Rentable
Area”).
“Property” Building, the land
under and surrounding the Building, parking, driveway, landscaped areas, and all
improvements located within the Building.
“Rent Commencement Date” Except
as modified herein, the Rent Commencement date shall be the February 1,
2007.
“Security Deposit” Sixty Seven
Thousand Five Hundred Seventeen and 24/100 ($67,517.24), deposited by Tenant
with Landlord pursuant to Section 9.01 to secure Tenant’s obligations
hereunder.
“Tenant’s
Address”
00000
Xxxxx Xxxxx
Xxxxx,
XX 00000
“Tenant’s Broker” The Colorado
Group, Inc.
2
“Tenant Improvement Allowance”
Tenant shall receive a Tenant Improvement Allowance in the amount equal to
Seventeen and 50/100 Dollars ($17.50) per square foot of Rentable Area, as more
fully described on Rider 5.01 attached hereto.
“Tenant’s Share”
78.42%.
ARTICLE
I
PREMISES/COMMENCEMENT
& EXPIRATION
Section
1.02. PREMISES. In
consideration of the rents, covenants and agreements of this Lease to be
observed and performed by the Tenant, Landlord leases to Tenant, and
Tenant rents from Landlord the Premises and non-exclusive use of the Common
Areas, together with any improvements, rights-of-way, easements and any other
rights, if any, appurtenant thereto. Except as otherwise set forth in
Rider C attached hereto, the Premises do not include any portion of the roof of
the Building other exterior surfaces of the Building.
Section
1.03. COMMENCEMENT AND EXPIRATION DATE OF
TERM. The term of this Lease (the “Lease Term”) shall commence
on the Lease Commencement Date and expire on the Lease Expiration
Date. Tenant shall have the option to extend the Lease Term for two
additional periods of five (5) years each, subject to and in accordance with the
terms and provisions of Rider A attached hereto.
ARTICLE
II
USE
Section
2.01. USE. Unless
otherwise approved in writing by Landlord (which approval may be withheld in
Landlord’s sole discretion), the Premises shall be
used and occupied by Tenant for general office and light manufacturing, research
and development, which includes assembly of machined parts, electronic
components assembly and testing, and functional verification testing in Thermal
and Thermal Vacuum Xxxxxxxx that are cooled with liquid nitrogen.
Section
2.02. SUITABILITY. Tenant
acknowledges that neither Landlord nor any agent of Landlord has made any
representation or warranty with respect to the Premises or the Building or with
respect to the suitability of either for the conduct of Tenant’s business, nor
has Landlord agreed to undertake any modification, alteration or improvement to
the Premises except as expressly provided in this Lease.
Section
2.03. USES
PROHIBITED. Tenant shall not do or permit anything to be done
in or about the Premises which will in any increase the existing rate of, or
affect, any fire or other insurance upon the Building or cause a cancellation of
any insurance policy covering the Building.
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ARTICLE
III
RENT
Section
3.01. BASE
RENT. Commencing on the Rent Commencement Date and on the
first day of each calendar month thereafter during the Lease Term, Tenant agrees
to pay to Landlord in advance and without any prior notice or demand therefor
and without any deduction or set-off whatsoever, the monthly installment of Base
Rent as set forth in Section 1.01, together with
such increases as are provided for therein. The first full month’s
Base Rent and Tenant’s Share of Operating Expenses, as
estimated, for the month shall be paid to Landlord upon the execution of this
Lease.
Section
3.02. ADDITIONAL
RENT. All sums other than Base
Rent payable by Tenant under this Lease shall be payable, and referred to in
this Lease, as “Additional Rent” and shall be payable on the next date that Base
Rent is due pursuant to Section 3.01 unless other
payment dates are set forth herein. Landlord shall have the same
rights and remedies with respect to the failure by Tenant to pay Additional Rent
as Landlord has with respect to the failure by Tenant to pay Base Rent. Nothing herein contained
shall be deemed to suspend or delay the payment of any amount of money or charge
at the time the same becomes due and payable hereunder, or limit any other
remedy of Landlord.
Section
3.03. OPERATING
EXPENSES. Commencing on the Rent Commencement Date and on the
first day of each calendar month thereafter during the Lease Term, Tenant shall
pay in advance, as Additional Rent for the Premises Tenant’s Share of Operating
Expenses (as defined below), accruing after the Rent Commencement Date, in the
amounts described in Section 3.04. Operating
Expenses are estimated to range from $3.25-$3.50 per square foot during the
first year of the Lease Term.
(a) Maintenance and Operating
Costs. The term “Operating Expenses” shall mean the aggregate
of those costs and expenses paid or incurred by or on behalf of Landlord
(whether directly or through independent contractors) relating to the ownership,
maintenance and operation of the Property, which are necessary, in
the reasonable judgment of Landlord, to maintain and operate the
Property. Without limiting the generality of the foregoing, Operating
Expenses shall include the items described in Rider 3.03
attached hereto and made a part hereof. Notwithstanding the
foregoing, Operating Expenses shall exclude capital costs other than those
provided for in Rider 3.03 hereto, costs arising from Landlord’s gross
negligence or willful misconduct, commissions and other costs related to leasing
of the Building.
Adjustments for Area Changes and
Variable Costs. In the event of a change in the Rentable Area
of the Premises resulting from Tenant’s exercise of either its Expansion Option
or Right of First Opportunity to Lease, Tenant’s Share of Operating Expenses
shall be recalculated to reflect Tenant’s full occupancy of the Building and
that Tenant’s Share of Operating Expenses is 100%. So long as Tenant
leases less than 100% of the Building, Tenant’s Share of the Operating Expenses
that vary with occupancy including, but not limited to, property management
fees, utilities (gas, electric and water), garbage pick-up, HVAC maintenance,
janitorial and cleaning supplies, and that are attributable to any
part of the Lease Term in which less than 95% of the rentable area of the
Building is occupied by tenants shall be determined by (i) dividing the Rentable
Area by the then total occupied rentable area in the Building (as reasonably
determined by Landlord), and (ii) multiplying such result by the amount of such
Operating Expense. At any time that Tenant leases 100% of the
Building, Tenant’s Share of Operating Expenses that vary with occupancy shall be
100%. Tenant’s Share of Operating Expenses that do not vary with
occupancy shall remain unaffected.
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(b) Separate
Metering. In the event that Landlord leases the Expansion
Space to any tenant other than Tenant, Landlord will install separate meters, or
submeters at Landlord’s election, for gas and electricity provided to the
Premises, the cost of which installation shall be paid by Landlord and shall not
be charged against the Tenant Improvement Allowance. In the event of
any such separate metering or submetering, the cost of the applicable
utility shall not be included in Operating Expenses for purposes of calculating
Tenant’s Share of Operating Expenses, and Tenant shall pay to the
utility provider (or to Landlord as Additional Rent if submetered) the actual
cost of such utility service(s) to the Premises.
Section
3.04. ESTIMATES AND
PAYMENTS. Tenant agrees to pay monthly, as Additional Rent,
one-twelfth (1/12) of Landlord’s estimate of Tenant’s Share of Operating
Expenses for the then current calendar year. Landlord will give
Tenant written notice from time to time of such estimated amounts determined in
good faith by Landlord based upon Landlord’s operating budget, and Tenant shall
pay such amounts monthly to Landlord in the same manner and at the same time as
Base Rent. Landlord will use reasonable efforts to submit to Tenant
by May 1 of each year a statement showing the Operating Expenses on a per
rentable square foot basis for the preceding calendar year along with a
reconciliation of estimated payments made by Tenant as compared to Tenant’s
actual payments for such calendar year (each, an “Operating
Statement”). However, the failure or delay by Landlord to provide
Tenant with an Operating Statement shall not constitute a waiver by Landlord of
Tenant’s obligation to pay Operating Expenses or of Landlord’s right to send an
Operating Statement, nor shall it constitute a waiver of its right to reconcile
payments of Operating Expenses. Within thirty (30) days after receipt
of an Operating Statement, Tenant shall pay to Landlord any additional amounts
owed to Landlord as shown on the Operating Statement. Any monies owed
Tenant by Landlord shall be applied by Landlord against the next accruing
monthly installment(s) of Operating Expenses due from Tenant, or if the Lease
Term has expired, shall be paid to Tenant. Any payments due under
this Article III shall be prorated for any partial
calendar year occurring during the Lease Term. Tenant’s obligation to
pay any amounts due under this Article III and
Landlord’s obligation to refund any overpayments made by Tenant under this Article III for the final year of the Lease Term shall
survive the Lease Expiration Date or earlier termination of this
Lease. Unless Tenant shall take written exception to any item
contained in an Operating Statement within thirty (30) days after delivery
thereof, the Operating Statement shall be deemed final and accepted by
Tenant.
Section
3.05. TENANT AUDIT. If
Tenant desires at its own expense to audit any statement of actual Operating
Costs provided under Section 3.03 above and supporting records and data,
Tenant shall cause such audit to commence within ninety (90) days following
delivery of the respective statement to Tenant and to be completed within ninety
(90) days thereafter. If Tenant does not so audit, then such
statement shall be deemed to be conclusively accepted by Tenant and Tenant shall
have no right thereafter to question or examine the same. 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 such
matter shall be submitted to an independent certified public accountant selected
by Landlord, with Tenant’s reasonable approval, for a determination which will
be conclusive and binding upon Landlord and Tenant. All costs
incurred by Tenant for Tenant’s accountants shall be paid for by Tenant unless
Tenant’s accountants disclose an error, acknowledged by Landlord’s accountants
(or found to have occurred through the above independent determination), of more
than 5% in the computation of the total amount of Operating Costs, in which
event Landlord shall pay the reasonable costs incurred by Tenant to obtain such
audit upon Landlord’s receipt and approval of supporting documentation
evidencing such costs associated with Tenant’s audit. Notwithstanding
the pendency of any dispute, Tenant shall continue to pay Landlord the amount of
the estimated payment or adjustment determined by Landlord’s accountants until
the adjustment has been determined to be incorrect.
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ARTICLE
IV
SERVICES
PROVIDED BY LANDLORD
Section
4.01. SERVICES. Subject
to Tenant’s obligation to pay Tenant’s Share of Operating Expenses under the
Lease, (i) Landlord shall keep the Building and the Common Areas in good
condition and repair, (ii) Landlord shall be fully responsible for maintaining,
repairing and/or replacing anything within the portion of the Building outside
of the Premises but within the Common Areas, and (iii) Landlord agrees to
furnish, subject to the terms of this Lease, Common Area elevator(s), water,
gas, electricity that are not separately metered suitable for the intended use
of the Premises. In addition, Landlord agrees to furnish Building
Common Area repair and maintenance (if any), Common Area landscaping, parking
lot maintenance, and exterior Building maintenance and repair, excluding truck
doors and docks specific to the Tenant.
Section
4.02. INTERRUPTION OF
SERVICE. Landlord shall not be liable for damages or in any
other way in the event of loss, damage, failure, interruption, defect or change
in the quantity or character or supply of electricity or any other utility
service furnished to the Premises (“Service”), unless caused by the gross
negligence or willful misconduct of Landlord, its agents, contractors or
employees. In no event shall Landlord be responsible for special or
consequential damages for interruption of service. Tenant agrees that
such supply may be interrupted for inspection, repairs, or in case of emergency;
nor shall the foregoing be construed as a constructive eviction of Tenant, or
excuse Tenant from failing to perform any of its obligations
hereunder. Notwithstanding the foregoing, in the event any Service is
unavailable to Tenant as a result of the act or omission of Landlord or its
agents or the failure of a Building system for a period of ten (10) consecutive
days (provided Tenant notifies Landlord of such unavailability), Base Rent and
Additional Rent shall xxxxx as to the portion of the Premises that is affected
thereby, beginning with the date immediately following such period of ten (10)
consecutive days and continuing until the Service(s) is
restored. Landlord shall attempt to provide Tenant with reasonable
advance notice of any interruption, and shall use reasonable efforts to schedule
any potentially disruptive, non-emergency repairs, or examination outside normal
business hours. Landlord shall only be required to maintain such
services as are reasonably possible under the circumstances in the event all or
any part of such systems, facilities and equipment are destroyed, damaged or
impaired until completion of the necessary repair or
replacement. Landlord shall have no liability to Tenant, its
employees, agents, invitees or licensees for damages or consequential damages or
in any other way for losses due to any criminal act or for damages done by
unauthorized persons on the Premises and the Property, and Landlord shall not be
required to insure against any such losses.
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Section
4.03. SECURITY
MEASURES. Tenant hereby acknowledges that although Landlord
may from time to time elect to provide security protection for the Property or
any part thereof, in which event the cost thereof shall be recoverable by
Landlord as an Operating Expense under this Lease Landlord shall have no
obligation to provide any such security measures for the benefit of the Tenant,
the Premises, the Property, or the Building. Tenant assumes all
responsibility for the protection of Tenant, its agents, its employees and
invitees and its and their property from acts of third parties.
Section
4.04. ENTRY
BY LANDLORD.
(a) Landlord
and Landlord’s agents and representatives shall have the right to enter the
Premises at any time in case of an emergency, and subject to 24 hours notice for
any purpose permitted pursuant to the terms of this Lease, including, but not
limited to, examining the Premises, making repairs, auditing Tenant’s compliance
with this Lease, showing the Premises to prospective purchasers, tenants or
mortgagees and posting notices of non-responsibility. Except in the
event of emergency, (i) Landlord shall not be permitted to enter secured or test
areas within the Premises identified as such by adequate signage, unless
Landlord is accompanied by Tenant, its agents or employees or Landlord has
received prior written permission from Tenant to enter such areas unaccompanied;
(ii) Landlord agrees to provide Tenant with two (2) business’ days prior written
notice of its intent to enter the Premises; (iii) Landlord will use reasonable
efforts to minimize disruption to the Tenant and its business and agrees to pay
for any actual damage to the Tenant’s property resulting from such entry; and
(iv) all agents of Landlord entering the Premises agree to execute a reasonable
confidentiality agreement as a condition to such entry.
(b) Landlord
shall give Tenant keys for all of the doors for the Premises. Tenant
shall not change any existing locks or add any additional locks to any doors for
or within the Premises, without the Landlord’s prior written consent and
delivery to Landlord of a set of keys for all changed and additional
locks. In an emergency, Landlord shall have the right to use any and
all means to open the doors to the Premises in order to obtain entry thereto,
without liability to Tenant. Any entry to the Premises by Landlord by
any of the foregoing means, or otherwise, shall not be construed or deemed to be
a forcible or unlawful entry into or a detainer of the Premises, or an eviction,
partial eviction or constructive eviction of Tenant from the Premises or any
portion thereof, and shall not relieve Tenant of its obligations under this
Lease.
Section
4.05. LANDLORD’S RIGHT TO
CURE. All agreements and provisions to be performed by Tenant
under any of the terms of this Lease shall be at Tenant’s sole cost and expense
if so provided herein and without any abatement of Base Rent or Additional
Rent. If Tenant shall fail to perform any act or to pay any sum of
money (other than Base Rent) required to be performed or paid by it hereunder,
or shall fail to cure any default and such failure shall continue beyond any
applicable notice and grace period set forth herein, then Landlord may, at its
option, and without waiving or releasing Tenant from any of its obligations
hereunder, make such payment or perform such act on behalf of
Tenant. All sums paid and all costs incurred by Landlord in taking
such action shall be deemed Additional Rent and shall be paid to Landlord on
demand.
7
Section
4.06. LANDLORD
RESERVATIONS. Landlord reserves and retains all rights to make
use of the surface, subsurface and airspace above the surface of the Building
and the Property and of the interior, exterior and roof of the Building, except
as specifically granted to Tenant under this Lease and as set forth on Rider C
attached hereto. Subject to the terms of Section 21.01, Landlord shall have the right to grant
any easements, licenses or other rights of use on, over, under and above, and
within or upon the Building or the Property for such purposes as Landlord
determines.
Section
4.07. TENANT’S
OBLIGATIONS.
(a)
Tenant shall keep the Premises in good condition and repair and shall be
responsible for payment of the cost thereof to Landlord as Additional Rent for
that portion of the cost of any maintenance and repair of the Premises, or any
equipment, that serves only Tenant or the Premises, normal wear and tear
excepted. Tenant shall be fully responsible for maintaining, repairing and/or
replacing anything within the Premises.
(b)Tenant
shall pay for, prior to delinquency, all telephone and all other materials and
services, not expressly required to be paid by Landlord, which may be furnished
to or used in, on or about the Premises during the term of this Lease.
(c)Wherever heat-generating machines or equipment are used in the Premise, which
affect the temperature otherwise maintained by the air conditioning system,
Landlord reserves the right to install supplementary air conditioning units in
the Premises and the cost thereof, including the cost of installation, operation
and maintenance thereof, shall be paid by Tenant to Landlord.
ARTICLE
V
CONDITION
OF PREMISES AND POSSESSION
Section
5.01. “AS-IS”
CONDITION. Tenant hereby acknowledges that it has inspected
the Building, its systems and components, the Property, and the Premises, and is
satisfied with same. Tenant hereby agrees to accept possession of the
Premises in its “as-is”, “where is” condition, except for Landlord’s obligation
to perform the Base Building Improvements pursuant to Paragraph 1.3 of the
Tenant Improvement Work Agreement set forth in Rider 5.01 to this
Lease.
Section
5.02. POSSESSION.
(a) Tenant
acknowledges that McData Corp. is currently a tenant at the Property and
occupies the westerly one-half of the Building (“McData Space”) under a lease
agreement, which expires March 7, 2009 (“McData Lease”). The McData Space
overlaps a portion of the Premises which is the subject of this Lease with
Tenant. The McData Lease further provides for an early termination at
McData’s option (“Early Termination Option”), which if exercised would require
McData to vacate the Building by March 7, 2007 (“Early Termination Date”).
Recent conversations with McData officials indicate that it intends to exercise
its Early Termination Option; however, formal notice thereof has not yet been
delivered to Landlord. Accordingly, this Lease and Landlord’s
obligation to provide possession of the Premises to Tenant hereunder are
expressly contingent upon Landlord’s receipt of such notice of McData’s exercise
of its Early Termination Option and further contingent upon McData relinquishing
possession of their premises on or before the Early Termination Date. Landlord
shall provide Tenant immediate notice at such time as it receives McData’s
notice.
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(b) McData
has advised Landlord that it intends to vacate the premises in three (3) phases
and anticipates being completely out of the Building by January 1,
2007.
(c) It
is the objective of this Lease that Tenant receive possession of the Premises at
the earliest opportunity in order to commence construction of Tenant
Improvements. Accordingly, Tenant shall be entitled to possession of the
Premises as follows: (i) upon execution of the Lease, the westerly one-half of
Building which is not leased to McData and currently vacant; (ii) the balance of
the Premises as soon as McData relinquishes possession of all or any portion
thereof. Tenant shall pay no Base Rent or Additional Rent for possession of any
portion of the Premises prior to the Rent Commencement Date.
(d) If
for any reason McData should delay in relinquishing possession of any portion of
the Premises until after the Rent Commencement Date hereunder, Base Rent and
Additional Rent for the Premises shall proportionately xxxxx until such time as
Tenant receives possession of the remainder of the Premises.
(e)
Landlord agrees to use its best commercially reasonable efforts to deliver
possession of the Premises to Tenant at the earliest opportunity. If despite
such efforts, Landlord is unable to deliver possession, Landlord shall not be
subject to any liability therefore.
ARTICLE
VI
COMPLIANCE
WITH LAWS AND RULES
Section
6.01. GOVERNMENTAL
REGULATIONS.
(a) Tenant,
at its sole expense, shall comply with all current and future laws, orders and
regulations of federal, state, county and municipal authorities and with any
directive of any public officer or officers pursuant to law (“Laws”) applicable
to the Premises which shall impose any violation, order or duty upon Landlord or
Tenant with respect to the Premises or the Building or the use or occupation of
the Premises or the Building, including, without limitation, all applicable
Laws, relating to public health and safety and protection of the
environment. Landlord represents that, to Landlord’s actual knowledge
without independent investigation, there are no existing violations of
applicable laws related to the Premises.
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(b) Tenant
will immediately notify Landlord and provide copies upon receipt of all written
complaints, claims, citations, demands, inquiries, reports, or notices relating
to the condition of the Premises or compliance with Laws. Tenant will
promptly cure and have dismissed with prejudice any such actions and proceeding
to the satisfaction of Landlord. Tenant will keep the Premises free
of any lien imposed pursuant to any Laws.
ARTICLE
VII
PARKING
During
the Lease Term, Tenant shall have the nonexclusive use of Tenant’s Share of the
parking area servicing the Property. Other than the charges set forth
in this Lease for maintenance and repair of the parking area, there shall be no
specific or additional charge for use of the parking spaces during the Term of
the Lease. It is specifically understood and agreed that the parking
areas located on the Property shall be for the nonexclusive use of all tenants
in the Building, but shall be limited to the use of such tenants’ employees,
visitors, guests or invitees only (hereinafter the parking areas located on the
Property shall be referenced as the “Parking Facilities”). Tenant and
its agents, employees, contractors, visitors, guests, invitees or licensees
shall not interfere with the rights of other tenants entitled to similar use of
the Parking Facilities.
Landlord
shall not be liable for any damage of any nature to, or any theft of, vehicles,
or contents thereof, in or about the parking area. Excessive use of
the parking area by others shall not be a default or breach of this Lease by
Landlord, and shall not suspend or terminate any of Tenant’s obligations under
this Lease.
ARTICLE
VIII
LETTER
OF CREDIT
On or
before July 10, 2007, Tenant shall provide Landlord with an irrevocable stand-by
letter of credit in the amount of $ 522,792.46 (the “Letter of Credit”), in form
and substance acceptable to Landlord and issued by a financial institution
identified by Tenant and acceptable to Landlord in its reasonable discretion
(“Letter of Credit Provider”). Should Tenant exercise its Option or
Right of First Opportunity, Tenant will then increase the amount of the Letter
of Credit to $666,742.07. Provided that no Event of Default has
occurred and is continuing, the Letter of Credit will be released at such time
as Tenant reaches and maintains for two consecutive years an S&P rating of
“A” or higher. Landlord provides no assurance to Tenant, however,
that such release will occur. The Letter of Credit shall remain
effective from the date it is issued through and including the Lease Expiration
Date, unless the Letter of Credit is released as provided for
herein. In no event shall the Letter of Credit be required for any
Renewal term hereunder.
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Upon any
Event of Default, Landlord may draw upon the Letter of Credit in an amount equal
to Landlord’s actual damages occurring as a result of such Event of
Default. If any portion of the Letter of Credit is so used, applied,
or retained, Tenant will, within five (5) days after written demand from
Landlord, provide to Landlord an additional irrevocable, stand-by letter of
credit, which shall be in form and substance satisfactory to Landlord, issued by
Letter of Credit Provider or such other financial institution identified by
Tenant and acceptable to Landlord in its reasonable discretion, in an amount
sufficient to restore the Letter of Credit to its original amount. In
no event shall Landlord be required to apply the Letter of
Credit. Tenant may not apply the Letter of Credit to the payment of
Base Rent, Additional Rent or the performance of other
obligations. The Letter of Credit will not be deemed a limitation on
Landlord's damages or a payment of liquidated damages or a payment of the Base
Rent or Additional Rent due for the last month of the Lease Term. If Tenant
fully, faithfully and timely performs the provisions of this Lease to be
performed by it, the Letter of Credit will be returned to Tenant upon the
release of the Letter of Credit, if any, or the expiration of the Lease Term,
whichever is later.
Landlord
may deliver and assign the Letter of Credit deposited under this Lease to any
lender on the Property and/or any successor owner of the Property. Upon sale of
the Property, Landlord shall have no further liability to Tenant or any other
party with respect to the Letter of Credit.
ARTICLE
IX
SECURITY
DEPOSIT
Section
9.01. PURPOSE OF
DEPOSIT. At the time of execution of this Lease, Tenant shall
deposit the Security Deposit with Landlord. Said Security
Deposit shall be held by Landlord as security for the payment by Tenant of all
Base Rent and Additional Rent and for the performance by Tenant of all of the
terms, covenants and conditions of this Lease.
Section
9.02. USE AND RETURN OF
DEPOSIT. If at any time during Lease Term, any Base Rent or
Additional Rent shall be overdue and unpaid, then Landlord may, at Landlord’s
option (but Landlord shall not be required to), appropriate and apply any
portion of said Security Deposit to the payment of any such overdue Base Rent or
Additional Rent. In the event of the failure of Tenant to keep and
perform any of the terms, covenants and conditions of this Lease, Landlord, at
its option, may appropriate and apply said entire Security Deposit, or so much
thereof as may be necessary, to compensate Landlord for loss or damage sustained
or suffered by Landlord due to such breach on the part of
Tenant. Should the entire Security Deposit, or any portion thereof,
be appropriated and applied by Landlord for the payment of overdue Base Rent or
Additional Rent or other sums due and payable to Landlord by Tenant hereunder,
then Tenant shall, upon the written demand of Landlord, forthwith remit to
Landlord a sufficient amount in cash to restore said security to the original
sum deposited. Tenant’s failure to do so within five (5) business
days after receipt of such demand shall constitute a breach of this
Lease. Should Tenant comply with all of said terms, covenants and
conditions, and promptly pay all Base Rent, Additional Rent and other sums
payable by Tenant under this Lease, then the Security Deposit shall be returned
in full to Tenant at the end of the Lease Term, or upon the earlier termination
of this Lease.
TRANSFER OF
DEPOSIT. Landlord shall deliver the funds deposited hereunder
by Tenant to any assignee of Landlord’s interest in the Premises, and thereupon
Landlord shall be discharged from any further liability with respect to such
Security Deposit.
11
ARTICLE
X
COMMON
USE AREAS
Section
10.01. CONTROL OF COMMON AREAS AND
FACILITIES BY LANDLORD. All common areas and facilities
associated with the Building and the Property shall at all times be subject to
the exclusive control and management of Landlord, and Tenant’s use of the same
shall be subject to the terms of this Lease.
ARTICLE
XI
[INTENTIONALLY
OMITTED]
ARTICLE
XII
ALTERATIONS
AND SIGNAGE
Section
12.01. ALTERATIONS.
(a) Construction. Except
as set forth in Rider 5.01 hereto, Tenant shall not, without Landlord’s
prior written consent, make any alterations, improvements, or additions in, on
or about the Premises or the Property, the costs of which exceed $10,000
(collectively “Alterations”).
(b) Permits and
Approvals. Tenant shall acquire and comply with all necessary
permits and approvals from all applicable governmental agencies for work
requiring governmental permits or approval. Promptly upon the
completion of all such work, Tenant shall furnish Landlord with a copy of each
permit, with signatures indicating final governmental approval of the work, and
Tenant shall furnish Landlord with a set of as-built plans, showing the work in
place. Tenant shall pay when due all claims for labor or materials
furnished or alleged to have been furnished to or for Tenant at or for use in
the Premises, which claims are or may be secured by any mechanic’s or
materialmen’s lien against the Premises, the Building, or the Property, or any
interest therein. Tenant shall give Landlord not less than ten (10)
days’ notice prior to the commencement of any work in the Premises that requires
a governmental permit or approval. Tenant shall post notices of
Landlord’s non-responsibility for payment for Tenant’s Alterations in or on the
Premises or the Building as provided by law, and Landlord shall have the right
to post such notices if Tenant fails to do so. Without limitation,
Tenant shall comply with Section 13.05 with respect
to all Alterations.
(c) Ownership of
Alterations. All Alterations by Tenant shall be made and done
in a good and workmanlike manner and of good and sufficient quality and
materials and shall be the property of Landlord and remain upon and be
surrendered with the Premises at the expiration of the Lease Term, unless
Landlord informs Tenant upon expiration of the Lease that removal is required,
in which case Tenant shall promptly remove such Alterations at its
cost.
12
Section
12.02. SIGNS.
(a) Landlord’s
Consent. Tenant may not install signs on the Property or the
exterior of the Building without Landlord’s prior written consent, which shall
not be unreasonably withheld. The main entrance door sign, monument
sign and any interior signs visible from the exterior of the Premises shall be
subject to Landlord’s reasonable approval as to size, design, location and
lighting. All signs must comply with all applicable laws and regulations
controlling same, including CC & R’s affecting the Property and the Colorado
Technology Park. Tenant shall pay all costs of fabrication,
installation and maintenance of any signs installed on the Building or the
Property.
(b) Removal. Prior to
vacating the Premises, Tenant shall, at its sole cost and expense, remove all of
its signage from the Building and the Property, and upon the removal or
alteration of any of its sign(s); Tenant shall repair, paint, restore or replace
the surface beneath such signs or placards damaged by such
removal. If Tenant fails to comply with its sign removal and
restoration obligations, Landlord may, without liability, enter upon the
Premises or the Building, and perform Tenant’s sign removal and restoration
obligations, all at Tenant’s expense.
ARTICLE
XIII
TENANT’S
MAINTENANCE, REPAIR AND SURRENDER OF PREMISES
Section
13.01. TENANT’S
MAINTENANCE. Tenant shall be directly responsible for
the maintenance and repairs of all portions of the interior of the
Premises, including without limitation: (a) bathrooms to which Tenant has
exclusive use, (b) carpets and floors within the Premises, (c) electrical
systems within and serving exclusively the Premises (including lighting fixtures
and bulbs), (d) elevators within the Premises for which Tenant has exclusive
use, (e) fire alarms and sprinklers located within and exclusively serving the
Premises, (f) improvements to the interior of the Premises for which Tenant has
exclusive use (including ceiling tiles in the Premises, equipment and fixtures
of Tenant, interior and exterior doors and windows in the Premises, interior
walls, window blinds and coverings in the Premises, and other improvements to
the interior of the Premises made by Tenant), (g) truck doors and docks located
within and exclusively serving the Premises, (h) utility lines located within
and exclusively serving the Premises, and (i) plumbing and HVAC serving the
Premises To the extent Tenant is responsible for the
maintenance and repair of such items, Tenant shall, at Tenant’s sole expense,
procure and maintain contracts, with copies to Landlord, in customary form and
substance for, and with contractors specializing and experienced in the
maintenance of the following equipment and improvements: HVAC equipment, fire
suppression systems, alarm systems, pest control services for the Premises,
trash and waste disposal for the Premises, and janitorial service to the
Premises. Landlord reserves the right, upon notice to Tenant,
to procure and maintain any or all of such service contracts, and Tenant shall
reimburse Landlord for such cost.
Section
13.02. WASTE/DAMAGE. Tenant shall not
permit or commit waste of the Premises, the Property or the Building. Tenant
shall repair or replace, at Tenant’s sole cost, to the extent not covered by
insurance, any damage done to the Building, the Property or any part thereof
caused by Tenant or Tenant’s agents, employees, contractors, invitees or
visitors.
13
Section
13.03. SURRENDER OF THE
PREMISES. On the last day of the Lease Term or on any earlier
termination, Tenant shall surrender the Premises to Landlord in the same
condition as received on the Lease Commencement Date, clean and free of debris,
excepting only ordinary wear and tear and loss. Any damage or
deterioration of the Premises shall not be deemed ordinary wear and tear if it
could have been prevented by prudent maintenance practices by
Tenant. Unless Landlord requires removal of the same, Tenant shall
leave all Tenant Improvements and Alterations on the Premises in good operating
condition, subject to ordinary wear and tear.
Section
13.04. REIMBURSEMENT. If
Tenant refuses or neglects to repair and maintain the Premises as required
hereunder and to the reasonable satisfaction of Landlord, after written demand,
Landlord may make such repairs on behalf of Tenant. Upon completion
thereof, Tenant shall pay all of Landlord’s costs for making such repairs plus,
as Additional Rent, such additional fees or charges as Landlord may reasonably
impose for overhead or supervision in connection with the repairs.
Section
13.05. LIENS.
(a) Prohibition. Tenant
shall keep the Premises, the Building and the Property free from any liens
arising out of any work performed, materials furnished, or obligations incurred
by or on behalf of Tenant. At Landlord’s option, Tenant shall
provide, at Tenant’s sole cost, a payment and performance and/or completion bond
in the estimated cost of Alterations to be constructed by Tenant, and otherwise
in form and substance reasonably satisfactory to Landlord. Should any
mechanic’s or other lien be filed against the Premises or the Building by reason
of Tenant’s or its agents’ or contractors’ acts or omissions or because of a
claim against Tenant, Tenant shall cause it to be canceled and discharged of
record by bond or otherwise within twenty (20) days after the filing
thereof. Should Tenant fail to discharge such lien within the twenty
(20) day period, Landlord may do so by whatever means Landlord deems
appropriate, in which event Tenant shall reimburse Landlord, on demand, as
Additional Rent, for the amount of the lien or the amount of the bond, if
greater, plus all administrative costs incurred by Landlord in connection
therewith. The remedies provided herein shall be in addition to all
other remedies available to Landlord.
(b) Liability to Third
Parties. Nothing contained in this Lease shall be construed as
constituting the consent or request of Landlord, express or implied, to or for
the performance by any contractor, laborer, materialman or vendor of any labor
or services or for the furnishing of any materials for any construction,
alteration, addition, repair or demolition of or to the Premises or any part
thereof. Neither Tenant nor any subtenant shall have the power to do
any act or make any contract that may create or be the foundation of any lien,
mortgage or other encumbrance upon any interest of Landlord in the Premises, the
Property or the Building. Notice is hereby given that Landlord is not
and shall not be liable for any labor, services or materials furnished or to be
furnished to Tenant or to anyone holding the Premises or any part thereof, and
that no mechanics’ or other liens for any such labor, services or materials
shall attach to or affect the interest of Landlord in and to the Premises, the
Property or the Building.
14
ARTICLE
XIV
INSURANCE
AND INDEMNITY
Section
14.01. INSURANCE.
(b) Landlord
will procure and maintain throughout the Lease Term, “casualty insurance,” which
includes, but is not limited to, fire and extended coverage insurance with
respect to the Building, in an amount equal to the full replacement cost
thereof, with coinsurance clauses of no less than 80%, and with coverage by
endorsement or otherwise, for all risks, vandalism and malicious mischief,
sprinkler leakage, and boilers, and such additional insurance of any type that
Landlord deems appropriate in its sole discretion to carry on the
Property.
Section
14.02. SUBROGATION. Notwithstanding
anything to the contrary contained herein, Tenant hereby waives all rights
against Landlord and its agents, officers, directors and employees for recovery
of damages to the extent these damages are covered by the commercial general
liability or commercial umbrella liability insurance maintained pursuant to
Rider 14.01 attached to this Lease. Tenant also hereby waives all
rights against Landlord and its agents, officers, directors, and employees for
recovery of damages to the extent these damages are covered by the workers
compensation and employers liability or commercial umbrella liability insurance
obtained by Tenant pursuant to Rider 14.01 attached to this
Lease. Tenant shall obtain an endorsement to effect this
waiver. Landlord and Tenant hereby waive any recovery of damages
against each other (including their employees, officers, directors, agents, or
representatives) for loss or damage to the Building, Tenant Improvements and
betterments, fixtures, equipment, and any other personal property to the extent
covered by the commercial property insurance or boiler and machinery insurance
required above. If the commercial property insurance and boiler and
machinery insurance purchased by Tenant as required above do not allow the
insured to waive rights of recovery against others prior to loss, Tenant shall
cause them to be endorsed with a waiver of subrogation as required
above.
15
Section
14.03. INDEMNIFICATION
AND WAIVER.
(a) Tenant’s
Indemnification. Tenant shall indemnify, defend and hold
harmless Landlord and its members, officers, directors, employees, attorneys and
agents (collectively, the “Indemnitees”) from and against any and all
claims, demands, causes of action, judgments, costs, expenses, attorneys fees,
and all losses and damages arising from Tenant’s use of the Premises or from the
conduct of its business or from any activity, work, or other acts or things
done, permitted or suffered by Tenant in or about the Premises, the Property or
the Building, and shall further indemnify, defend and hold harmless the
Indemnitees from and against any and all claims arising from any breach or
default in the performance of any obligation on Tenant’s part to be performed
under the terms of this Lease, or arising from any act or omission of Tenant, or
any officer, agent, employee, independent contractor, guest, or invitee thereof,
and from all costs, attorney fees, disbursements, and liabilities incurred in
the defense of any such claim or any action or proceeding which may be brought
against, out of or in any way related to this Lease. Upon notice from
Landlord, Tenant shall defend any such claim, demand, cause of action or suit at
Tenant’s expense by counsel reasonably satisfactory to Landlord. The
provisions of this Section 14.03 shall survive the
expiration or earlier termination of this Lease.
(b) Waiver of Landlord
Liability. As a material part of the consideration to Landlord
for this Lease, Tenant hereby assumes all risk of damage to property or injury
to persons in, upon or about the Premises from any cause, and Tenant hereby
waives all claims with respect thereto against Landlord and its affiliates and
their respective officers, shareholders, partners, managers, members, employees,
contractors and agents, except if directly caused by Landlord’s gross negligence
or willful misconduct, and Tenant waives all claims against such parties for any
and all losses, damages (including consequential or punitive damages) and other
costs arising from any cause whatever (unless caused by Landlord’s gross
negligence or willful misconduct), including, without limitation, any such
injury or damage caused by or resulting from (i) fire, explosion, smoke, gas,
electricity, water or rain which may leak from any Tenant controlled part of the
Building or from the pipes, appliances or plumbing works therein or from the
roof, street or subsurface or from any other places resulting from dampness or
any other cause whatsoever, (ii) the acts or omissions of any other tenant or
any officer, agent, employee, contractor or guest of any such tenant, (iii)
interference with the electrical service, ventilation, utilities or other
services to the Premises, (iv) any latent defect in the Premises, the Property
or Building, (v) any act, omission, event or circumstance for which Tenant is
required to insure, or (vi) any construction, Alterations or repair required or
permitted to be performed by Tenant or Landlord under this
Lease. Tenant shall give immediate notice to Landlord in case of
casualty or accidents in the Premises.
(c) Landlord’s
Indemnification. Landlord shall indemnify and hold Tenant
harmless from and against any loss or claim incurred by or asserted against
Tenant arising from Landlord’s gross negligence or willful misconduct with
respect to the use or condition of the Building (other than losses or claims
incurred due to actions by Tenant or a third party not acting on behalf of
Landlord) or the Common Areas.
16
ARTICLE
XV
OFFSET
STATEMENT, ESTOPPEL, ATTORNMENT AND SUBORDINATION
Section
15.01. OFFSET STATEMENT,
ESTOPPEL. At any time and from time to time upon written
request by Landlord, Tenant hereby agrees to deliver within ten (10) days after
Landlord’s request, an offset statement or estoppel certificate in form
reasonably acceptable to Landlord or any existing or proposed,
mortgagee, assignee or subsequent purchaser of the Property certifying, among
other things, that: (a) Tenant has accepted and taken possession of
the Premises; (b) Lease is in full force and effect, and (c) there are no
defenses or offsets to the obligations of Tenant hereunder and that there are no
defaults by Tenant or Landlord hereunder;, and (d) such other information as may
be reasonably required by Landlord or the intended recipient of the
certification.
Section
15.02. ATTORNMENT. In the
event any proceedings are brought for the foreclosure of, or in the event of
exercise of the power of sale under any mortgage or trust deed made by Landlord
covering the Premises, or in the event of any termination of any underlying
lease, Tenant shall attorn to the purchaser upon any such foreclosure or sale
and recognize such purchaser or lessor under any underlying lease as Landlord
under this Lease, without change in the terms or other provisions of such Lease;
provided, however, that the successor in interest, may, at its option, accept or
reject such attornment, and shall not be bound by (a) any payment of Base Rent
or Additional Rent for more than one month in advance, except prepayments in the
nature of security for the performance by the Tenant of its obligations under
the Lease, (b) any security deposited with any landlord under the Lease except
to the extent said successor actually receives such deposit, (c) any act or
omission, or default by any previous landlord under the Lease, (d) any other
existing or past offsets or defenses that the Tenant may have under the Lease,
and (e) any amendment or modification of the Lease made without the consent of
the Assignee or such successor in interest.
Section
15.03. SUBORDINATION AND
NON-DISTURBANCE. This Lease, and all rights and interests of
Tenant hereunder, at Landlord’s option, shall be subordinate to any mortgage,
deed of trust, or any other hypothecation or security now or hereafter placed
upon the Building, or any interest of Landlord therein (collectively
“Mortgage”), and to any and all advances made on the security thereof and to all
renewals, modifications, consolidations, replacements and extensions
thereof. Notwithstanding such subordination, Tenant’s right to quiet
possession of the Premises shall not be disturbed if Tenant is not in default
under the Lease. If any mortgagee, trustee shall
elect to have this Lease be senior to the lien of its Mortgage, and shall give
written notice thereof to Tenant, this Lease shall be deemed senior to such
Mortgage, whether this Lease is dated prior or subsequent to the date of said
Mortgage or the date of recording thereof. Tenant agrees to execute
any documents required to effectuate an attornment, a subordination, or to make
this Lease prior to the lien of any Mortgage, on the condition that such
mortgagee executes a non-disturbance agreement in favor of Tenant which provides
that so long as Tenant is not in default of this Lease, Tenant’s right to
possession of the Premises and Tenant’s rights under the Lease shall not be
affected or disturbed by the mortgagee in the exercise of any of its rights or
remedies against Landlord, nor shall Tenant be named as a party defendant to any
foreclosure of the lien or mortgage. Tenant’s failure to
execute such documents within ten (10) days after written demand shall
constitute a material default by Tenant hereunder.
17
ARTICLE
XVI
ASSIGNMENT
AND SUBLETTING
Section
16.01. ASSIGNMENT
AND SUBLETTING.
(a) Landlord’s Consent Required.
Tenant shall not voluntarily or by operation of law assign, transfer, sublet,
mortgage, collaterally assign, or otherwise transfer or encumber (referred to as
“Assignment of Interest”) all or any part of Tenant’s interest in the Lease or
in the Premises, without Landlord’s prior written consent, which consent shall
not be unreasonably withheld. Landlord shall respond to Tenant’s
request for consent hereunder within fifteen (15) days of delivery of a request
for Landlord’s approval, accompanied by all reasonable materials requested for
Landlord’s review. Any attempted Assignment of Interest without
Landlord’s consent shall be void, and shall constitute a material default and
breach of this Lease without a requirement for notice to Tenant under any
provision of this Lease. Notwithstanding the foregoing, Tenant may
assign all or part of this Lease, or sublet all or part of the Premises, to: (i)
any corporation that has the power to direct Tenant’s management and operation,
or any corporation whose management and operation is controlled by Tenant; (ii)
any corporation a majority of whose voting stock is owned by Tenant; (iii) any
corporation in which or with which Tenant, its corporate successors, or assigns,
is merged or consolidated, in accordance with applicable statutory provisions
for merger or consolidation of corporations, so long as the liabilities of the
corporations participating in the merger or consolidation are assumed by the
corporation surviving or created by such merger and the successor has a net
worth no less than Tenant’s net worth immediately prior to such merger,
consolidation, acquisition, or assumption; or (iv) any corporate successor to a
successor corporation becoming such by either of the methods described in clause
(iii) or (iv), so long as on the completion of such merger, consolidation,
acquisition, or assumption, the successor has a net worth no less than Tenant’s
net worth immediately prior to such merger, consolidation, acquisition, or
assumption.
(b) No
assignment or subletting shall release Tenant of Tenant’s obligations hereunder
or alter the primary liability of Tenant to pay all Base Rent and Additional
Rent due under this Lease and to perform all obligations to be performed by
Tenant under this Lease.
(c) Intentionally
Omitted.
(d) Upon any
default under this Lease, Landlord may proceed directly against Tenant or anyone
else responsible for the performance of this Lease, including the subtenant,
without first exhausting Landlord’s remedies against any other person or entity
responsible therefore to Landlord, or any security held by Landlord or
Tenant. Landlord’s written consent to any assignment or subletting of
the Premises by Tenant shall not constitute an acknowledgment that no default
then exists under this Lease of the obligations to be performed by Tenant, nor
shall such consent be deemed a waiver of any then existing default, except as
may be otherwise stated in writing by Landlord at the time. No assignment of
this Lease shall be effective unless and until Tenant shall deliver to Landlord
an agreement in form and substance satisfactory to Landlord pursuant to which
such assignee assumes and agrees to be bound by all of the terms, covenants,
conditions, provisions and agreements of this Lease. No sublease
entered into by Tenant shall be effective unless it contains an agreement of the
subtenant to be bound by all of the terms, covenants, conditions, provisions and
agreements of this Lease applicable to the subleased portion of the
Premises. Tenant shall use only such form of sublease as has been
reasonably approved by Landlord. As a condition of Landlord’s obligation to
review any Tenant request for assignment or subletting of the Premises, Tenant
agrees to reimburse Landlord for its actual and reasonable out of pocket legal
expenses incurred in connection therewith.
18
ARTICLE
XVII
DESTRUCTION
OF PREMISES
Section
17.01. TOTAL OR PARTIAL
DESTRUCTION. If the Premises should be damaged by fire, the
elements, unavoidable accident or other casualty, but are not thereby rendered
untenantable in whole or in part, Landlord shall cause such damage to be
repaired within 180 days from the date of the damage or casualty, and the rental
shall not be abated. If by reason of such occurrence, the Premises
shall be rendered untenantable only in part, Landlord shall cause the damage to
be repaired within 180 days from the date of the damage or casualty, or if the
damage cannot be repaired within said 180 days, Landlord shall commence to
repair the damage within such 180-day period and diligently pursue the repairs
to completion, and the rental meanwhile shall be fairly and proportionately
abated as to the portion of the Premises rendered untenantable
thereby. If the Premises shall be rendered wholly untenantable by
reason of such occurrence, Landlord may elect to either diligently pursue
repairs of such damage, and until the Premises have been restored and rendered
tenantable, the rental shall xxxxx, or alternatively Landlord may terminate this
Lease and the tenancy hereby created by giving to Tenant written notice within
thirty (30) days from the date of such damage or casualty. Landlord’s
obligation to repair under this Section 17.01 (i) is
expressly limited to the extent of any insurance proceeds paid to and received
by Landlord, and (ii) shall at all times be subject to obtaining all necessary
approvals from all applicable governmental entities, and the holder of any
Mortgage, and is further subject to the willingness of such holder to make the
proceeds of casualty insurance policies available to Landlord for such repairs
or restoration. Landlord shall not be liable for any delay that is
beyond the reasonable control of Landlord in the completion of the repair and
restoration of the Premises. Landlord shall use said proceeds
to restore the Premises to the condition it was in following completion by
Tenant of its leasehold improvements, and in such event.
19
Section
17.02. WAIVER. Landlord
and Tenant waive the provisions of any statute that relates to termination of
leases when leased property is destroyed and agree that such event shall be
governed by the terms of this Lease.
Section
17.03. NOTICE OF
DAMAGE. Tenant shall give immediate written notice to Landlord
of any damage caused to the Premises by fire or other casualty.
ARTICLE
XVIII
EMINENT
DOMAIN
Section
18.01. TOTAL CONDEMNATION OF
PREMISES. If the whole of the Premises shall be acquired or
condemned by eminent domain for any public or quasi-public use or purpose, then
the Term of this Lease shall cease and terminate as of the date of title vesting
in such proceeding and all rentals shall be paid up or adjusted, as the case may
be, to that date. Tenant shall have no claim against Landlord for the
value of any unexpired term of this Lease.
Section
18.02. PARTIAL
CONDEMNATION. If any part of the Premises shall be acquired or
condemned as aforesaid, and in the event that such partial taking or
condemnation shall render the Premises unsuitable for the business of Tenant,
then the Term of this Lease shall cease and terminate as of the date of title
vesting in such proceeding. Tenant shall have no claim against Landlord for the
value of any unexpired term of this Lease and rent shall be adjusted to the date
of such termination. In the event of a partial taking or condemnation
which is not extensive enough to render the Premises unsuitable for the business
of Tenant, this Lease shall continue in full force and effect and rent shall be
equitably adjusted.
Section
18.03. LANDLORD’S DAMAGES.
In the event of any condemnation or taking as aforesaid, whether whole or
partial, Tenant shall not be entitled to any part of the Landlord’s award paid
for such condemnation and Landlord is to receive the full amount of such
Landlord’s award, Tenant hereby expressly waiving any right or claim to any part
thereof.
Section
18.04. TENANT’S
DAMAGES. Although all Landlord’s damages in the event of any
condemnation are to belong to Landlord whether such damages are awarded as
compensation for diminution in value of the leasehold or to the fee of the
Premises, Tenant shall have the right to claim and recover from the condemning
authority, but not from Landlord, such compensation as may be separately awarded
or recoverable by Tenant in Tenant’s own right on account of any and all damage
to Tenant’s business by reason of the condemnation and for or on account of any
cost or loss to which Tenant might be exposed in removing Tenant’s furniture,
fixtures, leasehold improvements and equipment. In the event of any
condemnation or taking as aforesaid, whether whole or in part, Tenant shall not
be entitled to any part of the Landlord’s award paid for such
condemnation. However, if Tenant’s award is granted in a lump sum
with Landlord’s award, Landlord shall pay to Tenant therefrom such amount as is
due to Tenant.
20
ARTICLE
XIX
EVENTS
OF DEFAULT
Section
19.01. EVENTS
OF DEFAULT
(a) Definition. In
addition to any other event specified in this Lease as an event of default, the
occurrence of any one or more of the following events during the Lease Term
(each, individually, an “Event of Default” and collectively, “Events of
Default”) shall constitute a breach of this Lease by Tenant and Landlord may
exercise the rights set forth in this Lease or as otherwise provided at law or
in equity:
(i) Tenant
shall fail to pay any Base Rent or any Additional Rent (or cure any other
default which is curable by the payment of money) within five (5) days after
written notice from Landlord; provided, that if an Event of Default relating to
late payment of regular monthly installments of Base Rent or Additional Rent, or
both, due under this Lease occurs more than two times within any calendar year,
then, notwithstanding that each such Event of Default shall have been cured, any
further default relating to late payment of any such monthly payments due under
this Lease during such calendar year shall be deemed an Event of Default for
which no notice or cure period shall apply.
(ii) Tenant
shall default in the performance of or compliance with any of the other
covenants, agreements, terms or conditions of this Lease to be performed by
Tenant (other than any default curable by the payment of money), and, unless
expressly provided elsewhere in this Lease that no notice and/or opportunity to
cure such default is to be afforded Tenant, such default shall continue for a
period of thirty (30) days after written notice thereof from Landlord to Tenant,
or, in the case of a default which cannot with due diligence be cured within
thirty (30) days, Tenant fails to commence such cure promptly within such thirty
(30) day period and thereafter diligently prosecute such cure to completion
within ninety (90) days. Notwithstanding the above, Tenant must
immediately remedy any default that imminently threatens an injury or harm to
any person or property.
(iii) Tenant
shall become insolvent within the meaning of the United States Bankruptcy Code,
as amended from time to time (the “Code”); shall have ceased to pay its debts in
the ordinary course of business; shall be unable to pay its debts as they become
due; shall make a general assignment for the benefit of creditors; shall file,
take any action to file, or notify Landlord that Tenant intends to file, a
petition, case or proceeding under any section or chapter of the Code, or under
any similar law or statute of the United States or any state thereof relating to
bankruptcy, insolvency, reorganization, winding up or composition or adjustment
of debts; shall be adjudicated as a bankrupt or insolvent; shall seek to or
consent to or acquiesce in the appointment of any receiver, trustee, liquidator
or other custodian of Tenant or any material part of its properties, whether or
not it relates to their interests in this Lease; or Tenant shall notify Landlord
that it anticipates the occurrence of any of the foregoing conditions; or take
any other action for the purpose of effecting any of the foregoing
clauses.
(iv) The
Premises are effectively abandoned by Tenant, as evidenced by Tenant’s failure
to occupy and use the Premises for a period of thirty (30) days.
21
(v) Any
execution or attachment is issued against Tenant or any of its property
whereupon the Premises shall be taken or occupied or attached, or attempted to
be taken or occupied or attached by someone other than Tenant, which execution
or attachment is not vacated within thirty (30) days thereafter.
(vi) Intentionally
Omitted.
(vii) Tenant
does or permits to be done anything which creates a lien upon the Premises or
the Building and such lien is not discharged by Tenant within fifteen (15) days
after the filing thereof.
(viii) This
Lease shall be transferred to or shall pass to or devolve upon any other person
or party except in the manner set forth in Section
16.01.
Section
19.02. LANDLORD’S REMEDIES UPON
DEFAULT.
(a) Termination or
Possession. Upon the occurrence of any Event of Default,
Landlord shall have the option to pursue any one or more of the following
remedies without notice or demand whatsoever, in addition to, or in lieu of, any
and all remedies available to Landlord under the laws of the State of
Colorado:
(i) Landlord
may give Tenant written notice of its election to terminate this Lease,
effective on the date specified therein, whereupon Tenant’s right to possession
of the Premises shall cease and this Lease, except as to Tenant’s liability
determined in accordance with this Lease, shall be terminated.
(ii) Landlord
and its agents may immediately re-enter and take possession of the Premises, or
any part thereof, either by summary proceedings, or by any other applicable
action or proceeding, or by force or otherwise (without being liable for
indictment, prosecution or damages therefore) and may repossess the Premises as
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 in
any manner of trespass, and without prejudice to any remedies for arrears of
rent or Tenant’s breach of covenants or conditions.
(iii) Should
Landlord elect to re-enter as provided herein above or should Landlord take
possession pursuant to legal proceedings or pursuant to any notice provided by
law, Landlord may, from time to time, without terminating this Lease, relet the
Premises or any part thereof in Landlord’s or Tenant’s name, but for the account
of Tenant, for such term or terms (which may be more or less than the period
which would otherwise have constituted the balance of the Lease Term) and on
such terms and conditions (which may include concessions of free rent and
alteration, repair and improvement of the Premises) as Landlord, in its sole
discretion, may determine, and Landlord may collect and receive the rents
therefore without relieving Tenant of any liability under this Lease or
otherwise affecting any such liability, except that all amounts actually
collected shall be offset against damages otherwise payable by
Tenant. Landlord shall use reasonable efforts to the extent required
by law to relet the Premises, but shall in no event be liable for failure to
relet the Premises or any part thereof, or, in the event of any such reletting,
for refusal or failure to collect any rent due upon such reletting, and no such
refusal or failure shall operate to relieve Tenant of any liability under this
Lease or otherwise to affect any such liability. No such re-entry or
taking possession of the Premises by Landlord shall be construed as an election
on Landlord’s part to terminate this Lease unless a written notice of such
intention is given to Tenant. No notice from Landlord hereunder or
under a forcible entry and detainer statute or similar law shall constitute an
election by Landlord to terminate this Lease unless such notice specifically so
states. Landlord reserves the right following any such re-entry
and/or reletting to exercise its right to terminate this Lease by giving Tenant
written notice thereof, in which event this Lease will terminate as specified in
said notice.
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(iv) Landlord
may give Tenant written notice of its election to terminate any unexercised
Expansion Option or Right of First Opportunity to Lease, right of first refusal,
right of renewal and/or any other similar right granted to Tenant under the
terms of this Lease.
(b) Waiver of Notice and Right to
Re-Enter. Subject to the provisions of Colorado law, Tenant
hereby waives the service of any notice of intention to re-enter or to institute
legal proceedings to that end which may otherwise be required to be given under
any present or future law. Tenant, on its own behalf and on behalf of
all persons claiming through or under Tenant, including all creditors, does
further hereby waive any and all rights which Tenant and all such persons might
otherwise have under any present or future law to redeem the Premises, or to
re-enter or repossess the Premises, or to restore the operation of this Lease,
after (i) Tenant shall have been dispossessed by a judgment or by warrant of any
court or judge, or (ii) any re-entry by Landlord, or (iii) any expiration or
termination of this Lease and the Lease Term, whether such dispossession,
re-entry, expiration or termination shall be by operation of law or pursuant to
the provisions of this Lease. The words “re-enter”, “re-entry” and
“re-entered” as used in this Lease shall not be deemed to be restricted to their
technical legal meanings. In the event of a breach or threatened
breach by Tenant, or any persons claiming through or under Tenant, of any term,
covenant or condition of this Lease on Tenant’s part to be observed or
performed, Landlord shall have the right to enjoin such breach and the right to
invoke any other remedy allowed by law or in equity as if re-entry, summary
proceedings and other special remedies were not provided in this Lease for such
breach. The right to invoke the remedies hereinbefore set forth are
cumulative and shall not preclude Landlord from invoking any other remedy
allowed at law or in equity.
(c) Damages.
(i) In the
event this Lease is terminated in accordance with the provisions of Section 19.02(a)(i), Tenant
shall remain liable to Landlord for damages in an amount equal to the Base Rent
and any Additional Rent and any other sums due hereunder as of the date of
termination of this Lease plus the Base Rent and any Additional Rent which would
have been owing by Tenant hereunder for the balance of the Lease Term
(collectively, the “Aggregate Gross Rent”) had this Lease not been terminated,
less the net proceeds, if any, received as a result of any reletting of the
Premises by Landlord subsequent to such termination, after deducting all of
Landlord’s expenses including, without limitation, all repossession costs,
brokerage commissions, legal expenses, reasonable attorney fees, expenses of
employees, alteration and repair costs and expenses of preparation for such
reletting (collectively, the “Reletting Costs”). Landlord shall be
entitled to collect Base Rent, any Additional Rent and all other damages from
Tenant monthly on the days on which Base Rent and any Additional Rent would have
been payable hereunder if this Lease had not been
terminated. Alternatively, at the option of Landlord, in the event
this Lease is so terminated, Landlord shall be entitled to recover forthwith
against Tenant, as liquidated damages and not as a penalty, the then value of
the Aggregate Gross Rent and Reletting Costs less the aggregate rental value of
the Premises for what otherwise would have been the unexpired balance of the
Lease Term. In the event Landlord shall relet the Premises for the
period which otherwise would have constituted the unexpired portion of the Lease
Term (or any part thereof), the amount of Base Rent and Additional Rent and
other sums payable by the tenant thereunder shall be deemed prima facie to be
the rental value for the Premises (or the portion thereof so relet) for the term
of such reletting. Tenant shall in no event be entitled to any rents
collected or payable in respect of any reletting, whether or not such rents
shall exceed the Base Rent and any Additional Rent reserved in this
Lease. Tenant shall bear the burden of proof in any proceeding to
determine the “rental value” for purposes of the above calculation.
23
(ii) If
Landlord does not elect to terminate this Lease, but takes possession, Tenant
shall pay to Landlord the Base Rent and any Additional Rent which would be
payable hereunder if such repossession had not occurred, less the net proceeds
received by Landlord, if any, of any reletting of the Premises by Landlord after
deducting the Reletting Costs to the extent not paid to Landlord pursuant to the
following sentence. Tenant shall pay Base Rent and Additional Rent
due Landlord, monthly, on the days on which rent would have been payable
hereunder if possession had not been retaken.
(d) Cumulative
Remedies. Suit or suits for the recovery of the rent and other
amounts and damages may be brought by Landlord, from time to time, at Landlord’s
election, and nothing in this Lease shall be deemed to require Landlord to await
the date when this Lease would have expired had there been no default by Tenant,
or no 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 nonexclusive. All costs incurred by Landlord in
connection with collecting any rent or other amounts and damages owing by Tenant
pursuant to the provisions of this Lease, or to enforce any provision of this
Lease, including reasonable attorney fees from the date such matter is turned
over to an attorney, whether or not one or more actions are commenced by
Landlord, shall also be paid by Tenant to Landlord.
(e) Miscellaneous.
(i) This
Lease shall continue in effect for so long as Landlord does not terminate it,
and Landlord may enforce all its rights and remedies under this Lease, including
the right to recover the Base Rent and any Additional Rent, as the same become
due under this Lease. Acts of maintenance or preservation or efforts
to relet the Premises or the appointment of a receiver upon the initiative of
Landlord to protect Landlord’s interest under this Lease shall not constitute a
termination of Tenant’s rights to possession unless Landlord shall have
specifically elected to terminate this Lease.
24
(ii) No
payments of money by Tenant to Landlord after the expiration or other
termination of this Lease after the giving of any notice by Landlord to Tenant
shall reinstate or extend the Lease Term, or make ineffective any notice given
to Tenant prior to the payment of such money. After the service of
notice or the commencement of a suit, or after final judgment granting Landlord
possession of the Premises, Landlord may receive and collect any sums due under
this Lease, and the payment thereof shall not make ineffective any notice, or in
any manner affect any pending suit or any judgment theretofore
obtained.
(iii) If Tenant
is in default under the terms hereof, Landlord shall have the right to remove
all the Tenant’s property from the Premises and dispose of said property in such
a manner as determined best by Landlord, at the sole cost and expense of Tenant
and without liability of Landlord for the actions so taken, subject to the
rights of any mortgagee of Landlord.
Section
19.03. BANKRUPTCY.
(a) In the
event that Tenant or any guarantor of this Lease shall become or be adjudicated
bankrupt or insolvent, or if Tenant or any guarantor of Tenant shall file or
acquiesce in a petition in any court in any bankruptcy, reorganization,
composition, extension, arrangement or insolvency proceedings, or if Tenant or
any guarantor of Tenant shall make an assignment or other conveyance in trust
for the benefit of its creditors, or if any execution or attachment shall be
issued against Tenant or Tenant’s property whereupon the Premises shall be taken
or occupied or attempted to be taken or occupied by someone other than Tenant
and such execution or attachment shall not be dismissed, vacated, discharged or
bonded within sixty (60) days after issuance of same, or if a receiver or
Trustee shall be appointed for Tenant and such receivership be not discharged
within twenty (20) days from the date of such appointment, then upon the
happening of any of said events, the term hereby demised shall, at the option of
the Landlord, cease and determine, it being expressly agreed that the covenant
hereinafter contained against the assignment of this Lease shall cover the case
of the assignment of this Lease by operation of law as well as the assignment of
this Lease by a voluntary act of Tenant.
(b) If this
Lease shall be so canceled and terminated, neither Tenant nor any person
claiming through or under Tenant by virtue of any statute or order of any court
shall be entitled to remain in possession of the Premises but shall forthwith
quit and surrender the Premises. In no event, without the written
approval of Landlord, which approval may be granted or withheld at its sole
discretion, shall this Lease be or be considered an asset of Tenant’s estate in
bankruptcy or insolvency, or any receiver or trustee (hereafter referred to as a
“Trustee”) with respect thereto.
(c) To the
extent that Landlord’s right to cancel this Lease in accordance with the
provisions of Article XIX of this Lease is invalid
or unenforceable under the Bankruptcy Reform Act of 1978 (the “Act”), as the
same may be amended from time to time, or any other statute or rule of law, then
the following provisions shall apply, to the extent valid and
enforceable:
25
(d) If there
has been a default by Tenant under any provision of this Lease (other than this
Section 19.03), the Trustee may not assume this
Lease, unless, at the time of assumption of this Lease, the
Trustee:
(i) cures, or
provides adequate assurance (to Landlord’s reasonable satisfaction) that the
Trustee will promptly cure such default; and
(ii) provides
adequate assurance (to Landlord’s reasonable satisfaction) of future performance
under the Lease, which shall include, without limitation, adequate
assurance:
(iii) of the
source of rent and other consideration due under such Lease;
(iv) that
assumption or assignment of such Lease will not breach substantially any
provision, such as a radius, location, use or exclusivity provision, in any
other lease, financing agreement or master agreement relating to the Building;
and
(v) that
assumption or assignment of this Lease will not disrupt substantially any tenant
mix or balance in the Building.
(e) If there
has been a default by Tenant, the Trustee may not require the Landlord to
provide services or supplies incidental to this Lease before assumption of this
Lease unless the Landlord is compensated under the terms of this Lease for any
unpaid services, supplies, Rent, Additional Rent, and any other amounts due
under this Lease but unpaid by Tenant before assumption of this
Lease.
(f) If this
Lease is terminated under the provisions of this Section
19.03, or by reason of rejection by the Trustee, Landlord shall be entitled
to the recovery of damages, and such other remedies, as are provided for in this
Article XIX. The foregoing sentence shall
not, however, limit or prejudice the right of Landlord to petition for and
obtain as liquidated damages in any bankruptcy, insolvency, receivership,
reorganization or arrangement proceeding an amount equal to the maximum allowed
by the Act or any other statute or rule of law governing such proceedings 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 amount of the damages referred to
in the preceding sentence.
Section
19.04. LANDLORD
DEFAULT. If Tenant believes that Landlord is in default of any
of Landlord’s obligations hereunder, Tenant shall give Landlord written notice
of default. If Landlord does not cure such default within thirty (30)
days after notice, or, if the default cannot reasonably be cured within a thirty
(30) day period, if Landlord has not begun to take curative action or is not
diligently pursuing completion of such curative action, then Tenant may, as its
sole remedy for such default, bring an action for specific performance, damages,
or both. Tenant’s default notice shall be sent to mortgagees as
specified later in this Lease. Under no circumstances shall Tenant be
entitled to terminate this Lease, offset Base Rent or Additional Rent, or use
self-help in the event of a default or alleged default by Landlord under this
Lease.
26
Section
19.05. LEGAL
EXPENSES. In the event that either party hereto shall bring
legal action against the other party, then the prevailing party shall be
entitled to reimbursement from the other party of actual attorneys’ fees and
costs, including expert witnesses and all other expenses.
Section
19.06. WAIVER OF JURY
TRIAL. THE PARTIES HERETO SHALL AND THEY HEREBY DO WAIVE TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE
PARTIES HERETO AGAINST THE OTHER ON ANY MATTERS WHATSOEVER ARISING OUT OF OR IN
ANY WAY CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT,
TENANT’S USE OR OCCUPANCY OF THE PREMISES, AND/OR ANY CLAIM OR INJURY OR
DAMAGE.
Section
19.07. LATE PAYMENT FEES AND
INTEREST CHARGE. In the event that any installment or payment
of Base Rent is not received by the fifth (5th) day of
the applicable month of the Lease Term, or Additional Rent or any other sum
required hereunder to be paid by Tenant to Landlord is not received by Landlord
on or before the fifth (5th) calendar day after written notice that the same is
due and payable, then for each and every such late payment, in addition to the
payment then in arrears, Tenant shall immediately pay to Landlord, as Additional
Rent, a late payment fee equal to five percent (5%) of the unpaid principal sum
due plus simple interest accruing on the unpaid principal sum at the rate of
eighteen percent per annum (18%) beginning on the date such money becomes due
and payable until such money is paid in full. The provisions in this
Lease providing for the payment of a late payment fee shall not be construed to
extend the date for payment of any sums required to be paid by Tenant hereunder
or to relieve Tenant of its obligation to pay all such sums at the time or times
herein stipulated. Notwithstanding the imposition of such late
payment fees pursuant to this Section 19.07, Tenant
shall be in default under this Lease if any or all payments required to be made
by Tenant are not made at the time herein stipulated, and neither the demand
for, nor collection by, Landlord of such delinquent principal sums and late
payment fees shall be construed as a cure of such default on the part of
Tenant.
ARTICLE
XX
HOLDING
OVER, SUCCESSORS
Section
20.01. HOLDING
OVER. Any holding over after the expiration of the Lease Term
hereof shall be construed to be a tenancy from month to month and the minimum
monthly rent payable during such holdover period shall be an amount equal to
125% of the Base Rent and Additional Rent payable during the last twelve month
period of the Lease Term (pro-rated on a monthly basis) and shall otherwise be
on the terms and conditions herein specified, so far as applicable.
Section
20.02. SUCCESSORS. All
rights and liabilities herein given to, or imposed upon, the respective parties
hereto shall extend to and bind the several respective heirs, executors,
administrators, successors, and assigns of the said parties, and if there shall
be more than one party hereto as Tenant, they shall all be bound jointly and
severally by the terms, covenants and agreements herein. No rights,
however, shall inure to the benefit of any assignee of Tenant unless the
assignment to such assignee has been approved by Landlord in writing as provided
in Section 16.01 hereof.
27
ARTICLE
XXI
QUIET
ENJOYMENT
Section
21.01. NO
HINDRANCE. Landlord warrants that it has full right and power
to execute and perform this Lease and to grant the estate demised herein and
that Tenant, on payment of the rent and performing the covenants herein
contained, shall peaceably and quietly have, hold and enjoy the demised Premises
for the uses and purposes herein set forth during the full Lease
Term. Landlord is hereby vested with full power and authority to
subordinate Tenant’s interest hereunder to any mortgage, deed of trust, or other
lien hereafter placed on the Premises, and Tenant agrees upon demand to execute
such further instruments subordinating this Lease as Landlord may request,
provided such further subordination shall be upon the express condition that
this Lease shall be recognized by the mortgagee and that the rights of Tenant
shall remain in full force and effect during the Lease Term so long as Tenant
shall continue to perform all of the covenants of this Lease.
ARTICLE
XXII
MISCELLANEOUS
Section
22.01. WAIVER. No
waiver by the parties hereto of any default or breach of any term, condition or
covenant of this Lease shall be deemed to be waiver of any subsequent default or
breach of the same or any other term, condition or covenant contained
herein. The acceptance of rent shall not be deemed a waiver of any
preceding breach, and no waiver shall be deemed to have been given except if
same be in writing. The failure of the Landlord to collect any amount due
pursuant to this Lease, whether Base Rent or Additional Rent, shall not act as a
waiver of the collection of such amount, provided, however, that no action shall
be brought to collect any such amount more than five (5) years after the
expiration of this Lease.
Section
22.02. ACCORD AND
SATISFACTION. No payment by Tenant or receipt by Landlord of a
lesser amount than the rent herein stipulated shall be deemed to be other than
on account of the stipulated rent, nor shall any endorsement or statement on any
check or any letter which may accompany any check or payment 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 in this Lease provided.
Section
22.03. ENTIRE
AGREEMENT. This Lease and the Exhibits attached hereto and
forming a part hereof, set forth all the covenants, promises, agreements,
conditions and understandings between Landlord and Tenant concerning the
Premises and there are no covenants, promises, agreements, conditions or
understandings, either oral or written between them other than are herein set
forth. Except as herein otherwise provided, no subsequent alteration,
amendment, change or addition to this Lease shall be binding upon Landlord or
Tenant unless reduced to writing and signed by them.
28
Section
22.04. CHANGE OF
NAME. Tenant agrees not to change the advertised name of the
business operated in the Premises without the written permission of
Landlord.
Section
22.05. NO
PARTNERSHIP. Landlord does not, in any way or for any purpose,
become a partner of Tenant in the conduct of Tenant’s business or otherwise, or
a joint venturer or a member of a joint enterprise with Tenant.
Section
22.06. FORCE
MAJEURE. In the event that either party hereto shall be
delayed or hindered in or prevented from the performance of any act required
hereunder by reason of strikes, lock-outs, labor troubles, inability to procure
materials, failure of power, restrictive governmental laws or regulations,
riots, insurrection, war or other reason of a like nature not the fault of the
party delayed in performing work or doing acts required under the terms of this
Lease, then performance of such act shall be excused for the period of the delay
and the period for the performance of any such act shall be extended for a
period equivalent to the period of such delay (“Force Majeure Delay”). The
provisions of this section shall not operate to excuse Tenant from prompt
payment of Base Rent, Additional Rent or any other payments required of Tenant
by the terms of this Lease.
Section
22.07. NOTICES, PLACE RENT
PAYABLE.
(a) Any and
all notices required or which either party herein may desire to give to the
other (each, a “Notice”) shall be made in writing and shall be given by
certified or registered mail, postage prepaid, return receipt requested, or by a
nationally recognized overnight courier, such as Federal Express or Airborne
Express, or by personal service, or by electronic facsimile with proof of
receipt, and shall be deemed to be given on the third business day after the
date of posting in a United States Post Office or branch post office or one day
after delivery to the overnight courier, or upon effecting personal service or
delivery by facsimile, and shall be delivered to Landlord’s Notice Address or
Tenant’s Notice Address, as appropriate. The parties agree that
copies of all Notices to be delivered to Landlord and Tenant hereunder shall be
simultaneously delivered to the specified addresses for copies set forth in Section 1.01, if any. Either party may, by
notice as aforesaid actually received, designate a different address or
addresses for communications intended for it. Anything contained
herein to the contrary notwithstanding, any bills or invoices for Base Rent, any
Additional Rent or any Landlord’s Operating Statement may be given by hand or by
mail (which need not be registered or certified) and, if so given, shall be
deemed given on the date of delivery or refusal, if by hand, or on the third
(3rd) business day following the date of posting, if mailed.
(b) Notices
given hereunder by any party may be given by legal counsel for such party or by
Landlord’s agent. The foregoing notice provisions shall in no way
prohibit notice from being given as provided in the rules of civil procedure of
the state in which the Building is located, as the same may be amended from time
to time and any notice so given shall constitute notice herein.
Section
22.08. CAPTIONS AND SECTION
NUMBERS. The captions, section numbers and article numbers
appearing in this Lease are inserted only as a matter of convenience and in no
way define, limit, construe or describe the scope or intent of such sections or
articles of this Lease, nor in any way affect this Lease.
29
Section
22.09. TENANT DEFINED, LANDLORD
DEFINED. The word “Tenant” shall be deemed and taken to mean
each and every person or party mentioned as a Tenant herein, be the same one or
more. The term “Landlord” shall be deemed and taken to mean the
Landlord, its successors and assigns. If there shall be more than one
party hereto as Tenant, the liability of each party under this Lease as Tenant
shall be joint and several, and any notice required or permitted by the terms of
this Lease may be given by or to any one thereof. The use of the
neuter singular pronoun to refer to Landlord or Tenant shall be deemed a proper
reference even though Landlord or Tenant may be an individual, a partnership, a
corporation, or a group of two or more individuals or
corporations. The necessary grammatical changes required to make the
provisions of this Lease apply in the plural sense where there is more than one
Landlord or Tenant and to either corporations, associations, partnerships or
individuals, males or females, shall in all instances be assumed as though in
each case fully expressed.
Section
22.10. GOVERNING LAW, PARTIAL
INVALIDITY. This Lease shall be construed and governed by the
laws of Colorado. If any term, covenant or condition of this Lease or
the application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable under the laws of the said State, or otherwise, the
remainder of this Lease, or the application of such term, covenant or condition
to persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby and each term, covenant and
condition of this Lease shall be valid and be enforced to the fullest extent
permitted by law.
Section
22.11. REPRESENTATION OF
PARTIES. The parties hereto represent and warrant to each
other that neither has been represented by any broker in connection with the
negotiation and/or execution of this Lease other than Landlord’s Broker and
Tenant’s Broker on behalf of Landlord and Tenant, respectively, and that there
are no claims for brokerage commissions or finder’s fees in connection
therewith, and that neither has dealt with any other person, firm or corporation
in connection herewith. Each of the parties hereto agrees to
indemnify and hold harmless the other party against and from all liabilities
arising from any such claim including, without limitation, the cost of counsel
fees in connection therewith. Landlord will pay Landlord’s Broker and Tenant’s
Broker for commissions earned through this transaction per separate written
agreements.
Section
22.12. NO
OPTION. The submission of this Lease for examination does not
constitute a reservation of or option for the Premises and this Lease becomes
effective as a lease only upon execution and delivery thereof by Landlord and
Tenant.
Section
22.13. RECORDING. Tenant
shall not record this Lease or a memorandum hereof without the prior written
consent of Landlord. Upon Landlord’s request, Tenant agrees to
execute and acknowledge a short form lease in recordable form, indicating the
names and addresses of Landlord and Tenant, a description of the Premises, the
Lease Term, the Lease and Rent Commencement Dates and Lease Expiration Date, and
options for renewal, if any, but omitting Base Rent and other terms of this
Lease.
30
Section
22.14. LANDLORD’S
LIABILITY. IT IS SPECIFICALY UNDERSTOOD AND AGREED THAT THERE
SHALL BE NO PERSONAL LIABILITY ON LANDLORD IN RESPECT TO ANY OF THE COVENANTS,
CONDITIONS OR PROVISIONS OF THIS LEASE. In no event shall Landlord be
liable to Tenant for any failure of other tenants in the Building to occupy
their spaces or operate their businesses, or for any loss or damage that may be
occasioned by or through the acts or omissions of other
tenants. Notwithstanding anything to the contrary provided in this
Lease, neither Landlord, nor any member, manager, general or limited partner in
or of Landlord, whether direct or indirect, nor any direct or indirect member,
manager or partner in such members or partners, nor any disclosed or undisclosed
officers, managers, members, shareholders, principals, directors, employees,
partners, servants or agents of Landlord, nor any of the foregoing, nor any
investment adviser or other holder of any equity interest in Landlord, their
successors, assigns, agents, or any mortgagee in possession shall have any
personal liability with respect to any provisions of this Lease. If
Landlord is in breach or default with respect to its obligations or otherwise,
Tenant shall look solely to Landlord’s interest in the Property for the
satisfaction of Tenant’s remedies and any judgment or award entered against
Landlord.
Section
22.15. ABANDONED
PROPERTY. Any property owned by Tenant and left in the
Premises after this Lease terminates, or after Tenant vacates the Premises,
shall be deemed abandoned property and Landlord shall have the right, but not
the obligation, to dispose of such property, without liability to Tenant for the
disposal of such property.
Section
22.16. AUTHORITY OF
TENANT. Each individual executing this Lease on behalf of
Tenant represents and warrants that he or she is duly authorized to execute and
deliver this Lease on behalf of Tenant, and that this Lease is binding upon
Tenant in accordance with its terms. Tenant shall, at the time of
execution of this Lease, deliver to Landlord a document to this
effect.
Section
22.17. FINANCIAL
STATEMENTS. Tenant shall, when requested by Landlord, furnish
to Landlord a true and accurate statement of its financial condition for its
most recent fiscal year, prepared in conformity with generally recognized
accounting principles or in another manner acceptable to
Landlord. Landlord agrees to treat Tenant’s financial statements as
confidential and agrees to disclose them only to prospective purchasers of the
Premises or to lenders.
Section
22.18. AUTHORITIES FOR
ACTION. Landlord may act through its managing agent for the
Building or through any other person who may from time to time be designated by
Landlord in writing. Tenant shall designate in writing one or more
persons to act on its behalf and may from time to time change such designation
by written notice to Landlord. In the absence of any such
designation, the person or persons executing this Lease on behalf of Tenant
shall be deemed to be authorized to act on behalf of Tenant in any matter
provided for herein.
Section
22.19. SEVERABILITY. If
any term or provision of this Lease or the application thereof to any person or
circumstances shall be declared by a judicial body to be illegal, invalid or
unenforceable, the remainder of this Lease, or the application of such term or
provision to persons or circumstances other than those to which it is held
invalid or unenforceable, shall not be affected thereby, and all other terms and
provisions of this Lease shall be valid and enforced to the fullest extent
permitted by law.
31
Section
22.20. INTERPRETATION.
(a) Whenever
in this Lease any words of obligation or duty are used, such words or
expressions shall have the same force and effect as though made in the form of a
covenant.
(b) All
pronouns and any variances thereof shall be deemed to refer to the neuter,
masculine, feminine, singular or plural, when the context requires.
(c) No remedy
or election given pursuant to any provision in this Lease shall be deemed
exclusive unless so indicated, but each shall, wherever possible, be cumulative
with all other remedies at law or in equity as otherwise specifically provided
herein.
(d) If, and
to the extent that, any of the provisions of any amendment, modification or
rider to this Lease conflict or are otherwise inconsistent with any of the
preceding provisions of this Lease, whether or not such inconsistency is
expressly noted in such amendment, modification or rider, the provisions of such
amendment, modification or rider shall prevail.
(e) The
parties mutually agree that the headings and captions contained in this Lease
are inserted for convenience of reference only.
(f) This
Lease shall be construed in accordance with the laws of Colorado.
(g) Landlord
and Tenant each acknowledge and warrant that it has been represented by
independent counsel and has executed this Lease after being fully advised by
said counsel as to its effect and significance. This Lease is the
result of negotiations between the parties and their respective attorneys and no
provision shall be construed against a party solely on the basis of
authorship.
Section
22.21. JOINT AND SEVERAL
OBLIGATION. If this Lease is executed by more than one party
as “Tenant”, the obligations of such parties as “Tenant” hereunder shall be the
joint and several of such parties as “Tenant”.
Section
22.22. NO LIGHT, VIEW OR AIR
EASEMENT. This Lease does not grant any rights to light, view,
or air to, from or over the Premises to the extent such items are affected by
activities occurring off the Premises. Any diminution or shutting off
of light, view, or air by any structure which is now or hereafter erected on or
off the Building property shall not affect this Lease or impose any liability on
Landlord.
32
IN WITNESS WHEREOF, each party hereto has
caused this Lease to be executed, all as of the day and year first above
written.
LANDLORD:
RE HILL PROPERTIES – LOUISVILLE,
LLC, a Colorado limited liability company
By: /s/ Xxx
Xxxx
Its: Manager
QUARTZ MOUNTAIN PROPERTIES,
LLC, a Colorado limited liability company
By: /s/ Xxxx
Xxxxxxx
Its:
Manager
TENANT:
SPACEDEV, INC., a Colorado
corporation
By: /s/
Xxxx X. Xxxxxxxxx
Its:
Chief
Executive Officer
EXHIBITS:
A. Floor
Plan
RIDERS:
Rider
3.03 Description of Operating Expenses
Rider
5.01 Tenant Improvement Work Letter Agreement
Rider
14.01 Tenant Insurance Requirements
Rider A
Renewal Option
Rider B
Expansion Option
Rider C
Rooftop Access
EXHIBIT
A
FLOOR
PLAN
(see
attached)
RIDER
3.03
DESCRIPTION
OF OPERATING EXPENSES
Without limiting the generality of Section 3.03, Operating Expenses shall include all
costs or expenses paid or incurred by Landlord in connection with the ownership
and operation of the Property, including, but not limited to, the
following:
(a) Taxes – All real
property taxes, fees and assessments and governmental charges levied by any
taxing districts or authorities presently or hereafter created, taxing the
Building, the Property, or any improvements thereon, including interior
improvements, and any other taxes, fees, charges or assessments attributable to
the Building or its operation that Landlord is obligated to
pay. Taxes shall include any excise, privilege, gross receipts or
sales tax levied on the rentals or the receipt thereof, together with any tax
levied or assessed on machinery or equipment located on the
Property. If and to the extent that due to a change in the method of
taxation or assessment, any franchise, capital stock, capital, rent, income,
profit or other tax or charge shall be a substitute for or supplement to any of
the foregoing, then all such items shall be included within the term Taxes for
the purposes of this Lease. All expenses, including reasonable
attorneys’ fees and disbursements, experts’ and other witnesses’ fees, incurred
in contesting the validity or amount of any Taxes or in obtaining a refund of
Taxes shall be considered as part of the Taxes for the year in which
paid. Without the prior written consent of Landlord, Tenant may not
contest Taxes; provided, however, that if Tenant occupies in excess of fifty
percent (50%) of the net rentable area of the Building, Tenant shall have the
right, at its sole cost and expense and upon written notice to Landlord, to
contest in good faith the validity or amount of any Taxes so long as (i) Tenant
continues to apprise Landlord as to the progress of Tenant’s contest, and (ii)
Landlord has the right, but not the obligation, to participate jointly with
Tenant in such contest.
(b) Insurance - “Casualty
insurance,” which includes, but is not limited to, fire and extended coverage
insurance with respect to the Building, in an amount equal to the full
replacement cost thereof, with coinsurance clauses of no less than 80%, and with
coverage by endorsement or otherwise, for all risks, vandalism and malicious
mischief, sprinkler leakage, and boilers, and all other insurance of any type
that Landlord deems reasonably appropriate to carry on the
Property.
(c) Maintenance and Repair
Costs – All costs to operate, repair and maintain the Property in a neat,
clean and safe order and condition, including without limitation:
(i) The
Common Areas, including without limitation, parking areas, driveways, curbs,
ramps, truck ways, retaining walls, lighting facilities, irrigation systems,
sidewalks, stairways, landscaped and, hardscaped areas, fences and
gates;
Rider
3.03 – Page 1
(ii) Plumbing
electrical systems, service lines or conduits for gas, water, electric, sewage,
heating, ventilating and air conditioning services, emergency or back-up power
supplies, if any, fire suppression and warning systems, conduits and
appurtenances for use by Tenant in common with other tenants, and other areas
and facilities related to the Building, whether within or outside the Building
and whether located on or off the Property.
(iii) All
supplies and materials used in the operation and maintenance of the Building and
the Property including, but not limited to, paper products, cleaning
and janitorial supplies and equipment, painting, and replacement of
worn out or damaged building components and equipment.
(iv) Utilities
for the Property (except those paid for directly by Tenant or other tenants
which are separately metered or submetered), including, but not limited to, the
cost of water, electrical service and lighting.
(v) Maintenance
and service agreements for the Property and equipment used in the operation of
the Property, including, but not limited to, HVAC, alarm service, waste
disposal, security and/or guard service, backup power source, if any, window
cleaning, fire protection, sprinklers, mechanical systems maintenance,
exterminating and landscape maintenance, and any elevators used by more than one
tenant at the Property.
(vi) Amortization,
together with interest, of the cost of installation of capital improvement items
which result in, or are intended to result in, a reduction in Maintenance Costs
or which are required to be installed under any governmental law, regulation or
authority. “Interest” shall be calculated at Landlord’s actual
financing costs. All such costs shall be amortized over the
reasonable life of the capital improvement items, with the reasonable life and
amortization schedule being determined in accordance with generally accepted
accounting principles, but in no event to extend beyond the reasonable life of
the Building.
(vii) Management
fees, and legal fees, except those legal fees which are related to any tenant or
lease within the Property accounting costs, and other professional services
associated with the operation and maintenance of the Property.
(viii) Roof,
structural components, foundations, exterior walls, gutters, glass, plumbing,
pipes and fixtures and other equipment.
(ix) The cost
of all licenses, dues, permits and other governmental charges.
(x) Replacement
of equipment or improvements that have a useful life of 5 years or
less.
Rider
3.03 – Page 2
(xi) The cost
of any capital improvement to the Building or the Property that has a useful
life of more than 5 years, provided, however, that Landlord shall allocate the
cost of any such capital improvement over the useful life of such capital
improvement pursuant to generally accepted accounting principals.
(xii) Common
Area trash disposal, security services, pest control services, and the costs of
any environmental required environmental inspections.
Operating
Expenses billed directly to Tenant or any other tenant of the Building shall not
be included as Operating Expenses for purposes of determining Tenant’s Share of
Operating Expenses.
Rider
3.03 – Page 3
TENANT
IMPROVEMENT WORK LETTER AGREEMENT
Tenant
desires to make certain improvements to the Premises, and Landlord is willing to
permit Tenant to make such improvements (“Tenant Improvements”), upon the terms
and conditions contained in this Rider 5.01, Tenant Improvement Work Letter
Agreement (“Work Letter Agreement”). All capitalized terms not defined herein
shall have the meaning set forth in the body of the Lease. Capitalized terms
used, but not otherwise defined, in this Work Letter Agreement shall have
meanings ascribed to those terms in the Lease. In the event of conflict between
this Work Letter Agreement and the Lease, this Work Letter Agreement shall
prevail. This Work Letter Agreement shall be deemed part of the
Lease.
1. Definitions: Wherever used in
this Work Letter Agreement, the following terms are defined as
follows:
1.1 Applicable Laws means all
state, federal and local laws including, without limitation, the Americans with
Disabilities Act, local building codes, ordinances, regulations, title and
subdivision covenants and restrictions, and insurance underwriter’s requirements
applicable to the Premises.
1.2 Architect means the
architects, designers and engineers selected by Tenant, subject to the prior
approval of Landlord, for the design and construction of the Tenant
Improvements.
1.3 Base Building Improvements
consist of Landlord’s obligation to: (a) remove all or part (at Tenant’s
election) of the existing demising wall in the Building, which currently
separates McData’s space from the current vacant space in the Building, at such
time as McData relinquishes possession of the area; (b) unless otherwise
requested by Tenant, remove McData’s tenant-specific equipment, fixtures and
signage remaining after McData vacates the Premises and relinquished possession
thereof; and (c) deliver the Premises to Tenant in good, clean condition with
all Building systems in good working order and windows washed. Except as set
forth herein, the Premises shall be delivered to Tenant in its current “as is”
condition and Tenant agrees to accept same as such.
1.4 Construction Costs mean all
costs incurred to complete the Tenant Improvements, including the following:
payments to contractors for labor, material, equipment, and fixtures supplied
pursuant to construction of the Tenant Improvements; fees and costs paid to
Architects for services related to designing and construction of the Tenant
Improvements; taxes, fees, charges, and levies by governmental and
quasi-governmental agencies for Permits or for inspection of the work; utilities
costs incurred in the course of the construction; premiums for Tenant’s
insurance required by this Work Letter Agreement; costs incurred for the
management and administration of the construction of Tenant Improvements; and
any other actual costs incurred in design or construction of the Tenant
Improvements.
Rider
5.01 – Page 1
1.5 Contractors mean the general
contractor, subcontractors, material suppliers and others who provide labor
and/or materials for construction of the Tenant Improvements.
1.6 Final Tenant Improvement Plans
mean the complete and final working drawings, plans, specifications, and
elevations for Lessee’s Improvements that will be presented to the relevant
public agencies for the granting of a building permit.
1.7 Tenant Improvements means the
improvements, modifications, and alteration of the Premises desired by Tenant,
other than the Base Building Improvements, as and to the extent described in the
Final Tenant Improvement Plans.
1.8 Tenant’s Agents mean all
Architects and Contractors hired directly or indirectly by Tenant to design and
construct the Leasehold Improvements.
1.9 Tenant’s Plans include both
Tenant’s Preliminary Tenant Improvement Plans and Tenant’s Final Tenant
Improvement Plans.
1.10
Landlord’s
Representative means Xxxxxxxx Croydon or such other person as Landlord
shall designate in writing to Tenant as its authorized representative for the
purposes of administering this Work Letter Agreement.
1.11
Permits mean the
building permits, approvals, and consents of relevant governmental authorities
and third parties having jurisdiction over the construction of the Tenant
Improvements.
1.12
Preliminary Tenant Improvement
Plans mean the preliminary space plans for the Premises which serve as
the basis for the Architect’s preparation of the Final Tenant Improvement
Plans.
1.13
Tenant’s Representative
means Xxx Xxxx or such other person as Xxxxx shall designate in writing to
Landlord as its authorized representative for the purposes of administering this
Work Letter Agreement.
1.14
Tenant Improvement
Allowance means the amount Landlord is required to pay to Tenant towards
the Construction Costs of Tenant Improvements, which total Tenant Improvement
Allowance is $1,267,420.00 ($17.50 per square foot of Rentable
Area).
2. Delivery of the Premises and Base
Building. Lessor shall deliver possession of the Premises as described in
Section 5.02 of the Lease and Lessee’s satisfaction of all required conditions
for taking possession under the Lease. As soon thereafter as practical, to the
extent that Base Building Improvements have not been completed, Lessor, at
Lessor’s sole cost, shall implement the Base Building Improvements. Except as
otherwise set forth within the Lease, and subject to Lessor implementing the
Base Building Improvements, Lessee agrees to accept the Premises in an “as is”
condition.
Rider
5.01 – Page 2
3. Payment of Tenant Improvement
Allowance. Tenant shall be entitled to monthly disbursements
of Tenant Improvement Allowance to be paid by Landlord to Tenant, up to a
maximum aggregate amount equal to the amount set forth in Paragraph 1.14 (and,
if Tenant exercises it’s Expansion Option pursuant to Rider B, the amount set
forth in Paragraph (a)(v) thereof), for Construction Costs of the Tenant
Improvements. A disbursement shall be made to Tenant at such time as:
(1) Tenant certifies that the portion of the work relating to the Tenant
Improvements to be paid for with the proceeds of such disbursement is complete
and Tenant has obtained all permits relating to such work required at such time;
(2) Tenant provides Landlord with properly executed mechanics lien releases for
all Construction Costs to be paid for with the proceeds of such disbursement;
and (3) Tenant provides Landlord with such other information and documents
relating to the Construction Costs and other amounts to be paid for with the
proceeds of such disbursement and the Tenant Improvements as Landlord may
reasonably request. If Landlord elects, Landlord may make
disbursements payable by joint check issued in the name of Tenant and the
applicable contractor. Should Tenant not use any portion of its
Tenant Improvement Allowance by February 1, 2008, Tenant shall be deemed to have
waived all rights to the remaining balance to the Tenant Improvement Allowance
and Landlord shall be released from all obligation and liability to provide or
fund such balance of the Tenant Improvement Allowance, subject, however, to
Tenant’s rights set forth in subsection (v) of Tenant’s Expansion Option and
Right of First Opportunity to Lease, attached as Rider B to this
Lease.
4. Notice of Non-Responsibility.
Landlord may at its option post a notice of non-responsibility for the
Tenant Improvements at the Premises and Tenant acknowledges that Landlord’s only
responsibility for payment of Construction Costs shall be to make payment to
Tenant for the Tenant Improvement Allowance as herein provided.
5. Designation of
Representatives. Landlord and Tenant hereby appoint Landlord’s
Representative and Tenant’s Representative, respectively, as their sole
representatives for the purposes of administering this Work Letter Agreement.
Until replaced by written notice, Landlord’s Representative and Lessee’s
Representative will have the full authority and responsibility to act on behalf
of their respective principals in connection with this Work Letter
Agreement.
6. Tenant’s Right to Select Tenant’s
Agents: Subject to Landlord’s right of reasonable approval, Tenant shall
have the right to select, hire and contract for Tenant’s Agents, at Tenant’s
expense, to design and construct the Tenant Improvements.
7. Payment of Construction
Costs. Tenant shall be solely responsible for payment of all
Construction Costs in connection with the design and construction of the
Improvements, subject to Landlord’s obligation to pay Tenant the Tenant
Improvement Allowance as set forth herein.
Rider
5.01 – Page 3
8. Landlord’s Right to Approve Tenant’s
Plans. Landlord shall have the right to approve Tenant’s
Preliminary Tenant Improvement Plans, as well as Tenant’s Final Tenant
Improvement Plans, prior to the commencement of construction or application by
Tenant for Permits. Landlord may withhold its approval of Tenant’s Plans only to
the extent a Design Problem exists and only by sending Tenant a notice of
disapproval within five (5) business days of receipt of a request for approval,
which disapproval shall specifically state what is being disapproved and why it
is creating a Design Problem. A “Design Problem” shall be deemed to
exist when the Tenant’s Plans show layouts or improvements which could have: (i)
an adverse effect on the Building Structure; (ii) possible damage or negative
impact to the Building Systems; (iii) non-compliance with applicable codes; (iv)
an effect on the exterior appearance of the Building; (v) an unreasonable
interference with the normal and customary business operations of other tenants
in the Building; (vi) non-compliance with Applicable Regulations or Colorado
Research Center CC&Rs; (vii) result in extraordinary Building Operating
Expenses (unless Tenant agrees to separately pay for such expenses) or overtax
Building Systems beyond normal capacity; or (viii) Landlord reasonably concludes
that the improvements viewed from outside the Building are aesthetically
inappropriate to the Building or the Property. In the event of any Landlord
disapproval, Landlord and Tenant agree to confer and negotiate to a prompt
resolution of the issue. Notwithstanding that any of Tenant’s Plans are reviewed
by Landlord, or its consultants, Landlord shall have no liability in connection
therewith and shall not be responsible for any omissions or errors contained in
Tenant’s Plans. Tenant’s indemnity set forth in the Lease and this Work Letter
Agreement shall specifically apply to Tenant’s Plans.
9. Landlord’s Costs in Reviewing
Tenant’s Plans and Construction of Tenant Improvements. Tenant shall
reimburse Landlord for all reasonable out-of-pocket expenses actually incurred
by Landlord and paid to third party consultants for reviewing Tenant’s Plans and
reviewing construction of the Tenant Improvements.
10. Tenant’s Obligation to Supervise and
Coordinate Construction of Tenant Improvements. Tenant shall have the
exclusive obligation to direct, supervise and coordinate the design and
construction of the Tenant Improvements. Landlord shall have no responsibility
in this regard.
11. Tenant’s Agents’ Insurance
Requirement. All of
Tenant’s Agents shall carry liability and Products and Completed Operation
Coverage insurance, each in amounts not less than $1,000,000 per incident,
$2,000,000 in aggregate, and in form and with companies as are required to be
carried by Tenant as set forth in the Lease. The policies therefore shall insure
Landlord and Tenant, as their interests may appear, as well as the respective
Contractor, and shall name as additional insureds all mortgagees of the
Property. All insurance maintained by Tenant’s Agents shall preclude subrogation
claims by the insurer against anyone insured thereunder. Such insurance shall
provide that it is primary insurance as respects the Landlord and that any other
insurance maintained by Landlord is excess and non-contributing with the
insurance required hereunder.
12. Tenant Warranty regarding Tenant
Improvements. Tenant warrants to Landlord that all Tenant Improvements
will be constructed in conformity with Applicable Laws, including, without
limitation, applicable building codes and Permits. Tenant further warrants that
the Tenant Improvements will be constructed by qualified, adequately supervised
workers, and that the Tenant Improvements will be free from any material defect.
Tenant further warrants that the quality of the materials and the construction
shall be at least as good as that utilized in similar quality buildings in the
neighborhood.
13. Tenant’s Indemnity. Tenant’s
indemnity of Landlord set forth in the Lease also applies to any costs, losses,
damages, injuries and/or liabilities caused by Tenant or Tenant’s Agents in
connection with the Tenant Improvements, or by any party directly or indirectly
employed or hired by Tenant’s Agents. The indemnity shall also apply to any
failure by Tenant for the Construction Costs.
Rider
5.01 – Page 4
14. Effect of Tenant's
Default. If an Event of Default (as described in the Lease),
or a default by Tenant under this Work Letter Agreement, occurs prior to
completion of construction of the Tenant Improvements, then in addition to
all other rights and remedies granted to Landlord pursuant to the Lease,
Landlord shall have the right to cause Tenant’s Agents to cease construction of
the Tenant Improvements, and any and all obligations of Landlord
under this Work Letter Agreement shall be postponed until such time as Tenant’s
default has been cured.
15. Design and Construction
Schedule. The schedule for design and construction of the Tenant
Improvements shall be exclusively the responsibility of Tenant. Regardless of
the date upon which the Premises are complete and ready for occupancy, the Rent
Commencement Date shall remain as set forth in the Lease.
Rider
5.01 – Page 5
RIDER
14.01
TENANT
INSURANCE REQUIREMENT
Tenant’s
insurance requirements under the Lease are as follows:
1. Comprehensive commercial general
liability insurance, including but not limited to premises, operations,
and products liability, personal injury liability, contractual liability, and
property damage liability coverage at the Building and the business conducted by
Tenant thereon. Such insurance shall have a combined single limit of
not less than one million dollars ($1,000,000) per occurrence and two million
dollars ($2,000,000) in the aggregate for all occurrences within each policy
year, or such greater amounts as Landlord may from time to time reasonably
require. The Policy shall name Landlord, and Landlord’s mortgagees
with an insurable interest, as additional insureds.
2. Fire and extended coverage
insurance covering all items which Tenant may remove from the Premises at
the end of the Lease Term, including but not limited to Tenant’s personal
property, wall coverings, floor coverings, window coverings, alterations,
furniture, equipment, and lighting, against loss or damage by fire, water,
windstorms, hail, earthquakes (if applicable), explosion, riot, damage from
aircraft and vehicles, smoke damage, vandalism and malicious mischief and such
other risks as are from time to time covered under “extended coverage”
endorsements and special extended coverage endorsements commonly known as “all
risk” endorsements, in an amount equal to the full replacement value thereof
from time to time and containing the waiver of subrogation required in Section
14.03 of this Lease.
3. State Worker’s Compensation
Insurance in the statutorily mandated limits and Employers Liability
Insurance with limits of not less than five hundred thousand dollars ($500,000),
or such greater amount as Landlord may from time to time require.
4. Umbrella or Excess Liability
Insurance in the amount of not less than three million dollars
($3,000,000) over each of the liability policy limits set forth in this Section,
naming Landlord as an additional insured.
5. Any other form or forms of
insurance, or increased amounts of the above specified forms of
insurance, as Landlord or mortgagees of Landlord may reasonably require from
time to time, in form, in amounts and for insurance risks against which a
prudent tenant or landlord would protect itself in similar
circumstances.
6. Any contractor retained by Tenant to
conduct any work or Alterations on the Property shall be obligated
to carry at least the following minimum insurance
coverage:
(a) Builder’s
risk insurance for the full cost of any work or Alterations constructed by
Tenant or Tenant’s contractors.
(b) State
Worker’s Compensation Insurance in the statutorily mandated limits and Employers
Liability Insurance with limits of not less than five hundred thousand dollars
($500,000), or such greater amount as Landlord may from time to time
require.
Rider
14.01 – Page 1
(c) Comprehensive
commercial general liability insurance, including but not limited to premises
liability, independent contractor’s protective liability, completed operations
and products liability, personal injury liability, contractual liability,
property damage liability, and explosion, collapse and underground damage
liability. Such insurance shall have a combined single limit of not
less than one million dollars ($1,000,000) per occurrence and two million
dollars ($2,000,000) in the aggregate for all occurrences within each policy
year, or such greater amounts as Landlord may from time to time reasonably
require.
(d) Comprehensive
automobile liability insurance to cover owned automobiles, automobiles under a
long-term lease, hired automobiles, employer’s non-ownership liability, medical
payments and uninsured motorists. The limits of liability shall be no
less than one million dollars ($1,000,000) for each occurrence for bodily injury
and personal injury.
(e) Umbrella
or Excess Liability Insurance in the amount of not less than three million
dollars ($3,000,000) over each of the liability policy limits set forth in this
Section, naming Landlord as an additional insured.
Rider
14.01 – Page 2
RIDER
A
RENEWAL
OPTION
Tenant
will have the option to renew (“Renewal Option”) the term of
this Lease for two (2) periods of five (5) years (each, a “Renewal Term”), subject to the
further provisions of this Rider.
(a) Tenant
may exercise the option with respect to each Renewal Term, if at all, by giving
notice of exercise (the “Renewal Notice”) to Landlord
not less than eight (8) months prior to the Lease Expiration Date or
the expiration of the prior Renewal Term, as applicable.
(b) The
Renewal Term will be on the same terms and conditions as this Lease, except
excluding any provisions for rent abatement, rent credit, tenant improvement
allowance and any other concessions from the Landlord, and Base
Rent. Base Rent for each Renewal Term shall be equal to the
prevailing market rate for the Premises at the time of the respective Renewal
Notice (taking into account that no tenant finish allowance or leasing
commissions will be payable by Landlord in connection with the exercise of the
Renewal Option), provided, that any such adjustment to Base Rent shall in no
event be equal to an amount less than the prior year’s Base Rent for each
Renewal Term. In addition, the Base Rent throughout each Renewal Term shall
increase at three percent (3%) per annum over the previous year’s Base
Rent.
(c)
Landlord and Tenant will have thirty (30) days after Landlord receives the
Renewal Notice within which to agree on the prevailing market rate for the
Premises, as defined in subparagraph (2) below.
1. If
Landlord and Tenant are unable to agree on the Base Rent for the Renewal Term
within thirty (30) days of the Renewal Notice, Landlord and Tenant will each
appoint a real estate broker with at least five years’ full-time experience in
commercial leasing in the commercial leasing market in which the Premises is
located to determine the prevailing market rate for the Premises. If
either Landlord or Tenant does not appoint a broker within ten (10) business
days after the other has given notice of the name of its broker, the single
broker appointed will be the sole broker and will set the prevailing market rate
for the Premises. If two brokers are appointed pursuant to this
paragraph, they will meet promptly and attempt to set the prevailing market rate
for the Premises. If they are unable to agree within twenty (20) days
after the second broker has been appointed, they will select a third broker,
meeting the qualifications stated in this paragraph within ten (10) business
days after the last day the two brokers are given to set the prevailing market
rate of the Premises. Landlord and Tenant will each bear one-half of
the cost of appointing the third broker and of paying the third broker’s
fee. The third broker, however selected, must be a person who has not
previously acted in any capacity for either Landlord or
Tenant. Within twenty (20) days after selection of the third broker,
a majority of the brokers will set the prevailing market rate for the
Premises. If a majority of the brokers are unable to set the
prevailing market rate for the Premises within the specified time period, the
three appraisals will be averaged and the average will be the prevailing market
rate for the Premises.
Rider A –
Page 1
2. The
“prevailing market rate of the Premises” means what a landlord under no
compulsion to lease the Premises and a tenant under no compulsion to lease the
Premises would determine as rent for the Renewal Term as of the time of the
Renewal Notice, taking into consideration the uses permitted under this Lease,
the quality, size, design, age and location of the Premises, and the rent for
comparable buildings located in the commercial leasing market in which the
Premises is located.
3. During
any such period in which Base Rent for such Renewal Term is being determined
pursuant to the terms hereof, Tenant may continue to pay the Base Rent in
existence at the end of the then existing Lease Term (the “Expired Term Rent”)
until the Base Rent for the Renewal Term (the “Renewal Term Rent”) has been
determined. Within 30 days following such determination, Tenant shall
pay to Landlord or receive a credit equal to, as applicable, the difference
between the Expired Term Rent and the Renewal Term Rent for that portion of the
Renewal Term that has transpired.
4. If
the prevailing market rate of the Premises is determined pursuant to clause
(c)(1), Tenant shall have ten (10) business days after the date of such
determination to accept such determination or by written notice to Landlord and
subject to payment in full of (i) all amounts owing to Landlord under the Lease
(including clause (c)(3) of this Rider), and (ii) the cost of the broker engaged
by Tenant pursuant to clause (c)(1) and ½ of the third broker engaged by the
parties pursuant to clause (c)(1), terminate the Lease. Tenant’s
failure to deliver such notice of termination and payment of such amounts within
such ten (10) business day period shall be deemed Tenant’s acceptance of such
determination of the prevailing market rate of the Premises.
(d) The
rights of Tenant under this Rider A are personal to SpaceDev Inc., a Colorado corporation
and may not be transferred or assigned except pursuant to a transfer or
assignment allowed by and in accordance with the provisions of the
Lease. The rights of Tenant under this Rider A will expire on the
expiration or earlier termination of the Lease or Renewal Term, as
applicable.
Rider A –
Page 2
RIDER
B
TENANT’S
EXPANSION OPTION AND
RIGHT
OF FIRST OPPORTUNITY TO LEASE
Up to and
including June 30, 2007 (the “Expansion Period”), Tenant shall have the
right to lease from Landlord all, but not less than all, of all remaining space
in the Building consisting of approximately 19,941 rentable square feet (the
“Expansion Space”) as shown on the attached Appendix A, subject to and in
accordance with the terms and conditions set forth in this
Section. Tenant will have the right to lease the Expansion Space, if
and only if:
(a) There
is no current Event of Default under this Lease at the time Tenant seeks to
exercise such right.
(b) Tenant
delivers to Landlord written notice exercising its right to lease the Expansion
Space not later than thirty (30) days prior to the expiration of the Expansion
Period.
If Tenant
exercises its right to lease the Expansion Space, Landlord and Tenant will enter
into an amendment to this Lease (the “Expansion Amendment”) providing for the
following terms and conditions:
(i) There
is no current Event of Default under this Lease at the time Tenant seeks to
exercise such right.
(ii) The
Expansion Space will be added to the Premises for a term concurrent with the
Lease Term, and the Renewal Option, as described in Rider A attached to the
Lease, shall also apply to the Expansion Space.
(iii) Base
Rent and Additional Rent for the Expansion Space shall be on the same terms and
conditions as this Lease, specifically, the same Base Rent and Additional Rent
per square foot as applies to the primary lease space.
(iv) The
commencement date for the leasing of the Expansion Space shall be the date on
which Tenant executes the Expansion Amendment, although the Base Rent and
Additional Rent payable for the Expansion Space shall commence July 1,
2007.
(v) Upon
the mutual execution of the Expansion Amendment and Rider 5.01 relating to the
Expansion Space, Tenant shall receive credit for a tenant improvement allowance
in the amount of Seventeen and 50/100 Dollars ($17.50) per net rentable square
foot, which shall be paid to Tenant for costs and expenses incurred by Tenant to
construct tenant improvements in the Expansion Space (“Expansion Space Tenant
Improvement Allowance”). The Expansion Space Tenant Improvement Allowance shall
be paid to Tenant pursuant to the same terms and conditions which apply to the
disbursement of the Tenant Improvement Allowance for the Premises, as set forth
in Rider 5.01 to the Lease; provided, that, notwithstanding anything to the
contrary in Section 3 of Rider 5.01 to the Lease, should Tenant not use any
portion of its Expansion Space Tenant Improvement Allowance on or before
February 1, 2008, the unexpended portion of such Expansion Space Tenant
Improvement Allowance may, at Tenant’s option, be disbursed directly to Tenant
by Landlord for whatever use Tenant may desire.
Rider B -
Page 1
(vii) Tenant
shall not have the right hereunder to lease less than all of the Expansion
Space.
(vii) All
other terms and conditions will be the same as contained in this Lease,
excluding any provisions for rent abatement, rent credit and any other
concessions from Landlord.
If Tenant
fails to timely exercise its right to lease the Expansion Space as described in
clause (b) above, or fails to execute the Expansion Amendment (as hereafter
defined) within 20 days of presentation of the same to Tenant, Tenant’s
Expansion Option shall expire. Thereafter, Landlord shall be entitled
to lease the Expansion Space to any other tenant or person upon such terms and
conditions as Landlord desires and, in such event, Landlord, at Landlord’s
expense, shall demise the Expansion Space from the Premises, construct any
walls, and provide separate gas and electric utility metering or submetering for
the Expansion Space and the Premises.
If
subsequently during the Lease Term, or any Renewal Term, the Expansion Space
should become vacant and available for lease, Tenant shall have the right of
first opportunity to lease (“Right of First Opportunity to Lease”) the Expansion
Space subject to the following terms and conditions:
(a) There
is no current Event of Default under this Lease at the time Tenant seeks to
exercise such right.
(b) Tenant
delivers to Landlord written notice accepting the lease terms and conditions
offered by Landlord not later than fifteen (15) days after receipt of Landlord’s
offer to lease the Expansion Space to Tenant.
If Tenant
accepts Landlord’s offer pursuant to this Right of First Opportunity to Lease, ,
Landlord and Tenant will enter into an amendment to this Lease (“Offer
Amendment”) providing for the following terms and conditions:
(i) There
is no current Event of Default under this Lease at the time Tenant seeks to
exercise such right.
(ii) The
Expansion Space will be added to the Premises for a term concurrent with the
Lease Term, as the same may be or have been extended.
(iii) The
lease terms for the Expansion Space shall be those which are offered by Landlord
and accepted by Tenant in writing.
If Tenant
fails to accept Landlord’s offer pursuant to the Right of First Opportunity to
Lease, or fails to execute the Expansion Amendment (as defined above) within 10
days of presentation of the same to Tenant, Tenant’s Right of First Opportunity
to Lease the Expansion Space shall expire and this Rider shall be deemed to have
no further force or effect whatsoever.
Rider B -
Page 2
The
rights of Tenant under this Rider B are personal to SpaceDev Inc., a Colorado corporation
and may not be transferred or assigned except as may be specifically permitted
under the Lease. The rights of Tenant under this Rider B will expire
on the expiration or earlier termination of this Lease.
Landlord
shall not be liable for any damages to Tenant for any failure to deliver
possession of the Expansion Space by reason of holding over by third parties,
provided, however, that Tenant shall not be liable for Base Rent or Additional
Rent with respect to the Expansion Space until the date upon which possession of
the Expansion Space is delivered to Tenant.
Rider B -
Page 3
APPENDIX
A TO RIDER B
(see
attached)
Appendix
A to Rider B
RIDER
C
ROOFTOP
ACCESS
Landlord
hereby grants permission to Tenant for rooftop access in order to install a
satellite antenna dish or other communication devices and related cables and
wiring on the roof of the Building subject to the following terms and
conditions :
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1.
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Unless
otherwise indicated, all capitalized terms shall have the meaning set
forth in the Lease.
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2.
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Landlord
hereby grants to Tenant for the term of the Lease, as it may be extended ,
the right, at Tenant’s sole cost, to install, access, maintain, operate,
replace, repair and remove or modify (collectively, “Construct” or the
“Construction”) a communications antennae or a similar communication
device and all accompanying equipment to make said equipment functional
(i.e. all cable, wiring, conduits) and related equipment necessary for the
generation and reception of radio and satellite-generated communication
transmissions at the Premises (collectively, “Communication Equipment”),
on the roof of the Building (“Roof”), mounted in a non-penetrating fashion
in a location to be mutually agreed upon between Landlord and Tenant;
provided, that access in each instance must be gained through an
appointment set up with Landlord’s Property
Manager.
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|
3.
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Tenant
shall comply with all laws and governmental regulations in its
installation, maintenance, operation and removal of the Communication
Equipment, including, without limitation, local regulations, Federal
Commerce Commission regulations, and Colorado Technology Center
CC&R’s.
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|
4.
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Tenant
shall not install, maintain or operate the Communication Equipment or any
receiving or broadcasting equipment used in connection with the
Communication Equipment, so as to cause any interference with any
electrical or other equipment, (including, without limitation, radios,
televisions, alarm and detection systems, and computers and other
satellite or radio or television receivers or dishes) located on the
Property or in the Building.
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|
5.
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Tenant
shall coordinate all installation, maintenance, repair or replacement of
the Communication Equipment with the Landlord’s roofer so that the roof is
not damaged and Landlord’s Roof warranty is preserved and not impaired in
any way. Tenant shall be responsible for restoring the
Roof to its previous condition upon removal of its Communication
Equipment.
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|
6.
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Tenant
agrees to defend, indemnify and hold Landlord harmless from any claim,
cost, loss, expense (including attorney’s fees), damages or liability
incurred in connection with Tenant’s exercise of its rights granted by
this Rider.
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Rider C -
Page 1
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7.
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Landlord
shall have the right to require Tenant to screen the equipment in a manner
reasonably satisfactory to
Landlord.
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8.
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If
applicable, Landlord shall allow Tenant to connect the Communication
Equipment to the Premises’ electrical system at Tenant’s cost for
installation and operation of the
system.
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9.
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In
addition to any other remedy provided by law or in equity, or by the Lease
for violation of the terms of this Rider, in the event of a breach by
Tenant of the terms of this Rider, Landlord may elect to terminate this
Rider and the rights granted hereunder without terminating the Lease,
retaking possession of the Premises, or otherwise affecting Tenant’s
rights relating to use or occupancy of the
Premises.
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Rider C -
Page 2
