EXHIBIT 10.28
LEASE AGREEMENT
NORTHSTAR CENTER
EDWARDS, COLORADO
TABLE OF CONTENTS
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Paragraph Page
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1. LEASE SUMMARY OF BUSINESS TERMS . . . . . . . . . . . . . . . 3
2. PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3. PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4. TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5. RENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
6. SECURITY DEPOSIT . . . . . . . . . . . . . . . . . . . . . . . 8
7. USE OF THE PREMISES . . . . . . . . . . . . . . . . . . . . . 8
8. TENANT IMPROVEMENTS, MAINTENANCE, REPAIRS AND ALTERATIONS . . 11
9. COMMON AREA . . . . . . . . . . . . . . . . . . . . . . . . . 14
10. COMMON AREA CHARGES . . . . . . . . . . . . . . . . . . . . . 15
11. INSURANCE, INDEMNITY . . . . . . . . . . . . . . . . . . . . 15
12. TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
13. UTILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . 19
14. ASSIGNMENT AND SUBLETTING . . . . . . . . . . . . . . . . . . 19
15. DAMAGE AND DESTRUCTION . . . . . . . . . . . . . . . . . . . 20
16. DEFAULTS; REMEDIES . . . . . . . . . . . . . . . . . . . . . 24
17. SURRENDER OF PREMISES; TREATMENT OF LESSEE'S ALTERATIONS
AT EXPIRATION OF LEASE . . . . . . . . . . . . . . . . . . . 28
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18. LESSOR'S LIEN . . . . . . . . . . . . . . . . . . . . . . . 29
19. EMINENT DOMAIN; CONDEMNATION . . . . . . . . . . . . . . . . 29
20. ESTOPPEL CERTIFICATE . . . . . . . . . . . . . . . . . . . . 30
21. SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . 31
22. SIGNS, DISPLAYS AND OTHER ADVERTISING MEDIA . . . . . . . . 32
23. QUIET POSSESSION . . . . . . . . . . . . . . . . . . . . . . 33
24. COVENANTS AND CONDITIONS . . . . . . . . . . . . . . . . . . 33
25. WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
26. ATTORNEY'S FEES AND WAIVER OF RIGHT OF JURY . . . . . . . . 34
27. LESSOR'S ACCESS . . . . . . . . . . . . . . . . . . . . . . 34
28. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . 35
29. AUCTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 35
30. OPTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 35
31. MULTIPLE TENANT BUILDING . . . . . . . . . . . . . . . . . . 37
32. SECURITY MEASURES . . . . . . . . . . . . . . . . . . . . . 37
33. EASEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . 37
34. PERSONAL GUARANTY . . . . . . . . . . . . . . . . . . . . . 37
35. HOLDING OVER . . . . . . . . . . . . . . . . . . . . . . . . 38
36. CUMULATIVE REMEDIES . . . . . . . . . . . . . . . . . . . . 38
37. LESSOR'S LIABILITY . . . . . . . . . . . . . . . . . . . . . 38
38. BINDING EFFECT; CHOICE OF LAW . . . . . . . . . . . . . . . 38
39. SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . 39
40. INTEREST IN PAST DUE OBLIGATIONS . . . . . . . . . . . . . . 39
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41. INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS . . . . . . . 39
42. PERFORMANCE UNDER PROTEST . . . . . . . . . . . . . . . . . 39
43. AUTHORITY . . . . . . . . . . . . . . . . . . . . . . . . . 40
44. CONFLICT . . . . . . . . . . . . . . . . . . . . . . . . . 40
45. REAL ESTATE BROKER'S FEE . . . . . . . . . . . . . . . . . . 40
46. ENVIRONMENTAL CONDITIONS AND INDEMNITIES . . . . . . . . . . 40
47. TIME OF THE ESSENCE . . . . . . . . . . . . . . . . . . . . 41
SIGNATURE PAGE . . . . . . . . . . . . . . . . . . . . . . . 42
EXHIBIT "A" (LEGAL DESCRIPTION) . . . . . . . . . . . . . . . . . . 43
EXHIBIT "B" (LESSEE'S SIGNAGE) . . . . . . . . . . . . . . . . . . 44
EXHIBIT "C" (OPTION TO RENEW) . . . . . . . . . . . . . . . . . . . 45
EXHIBIT "D" (CORPORATE RESOLUTION) . . . . . . . . . . . . . . . . 46
EXHIBIT "E" (BROKER AGREEMENT) . . . . . . . . . . . . . . . . . . 47
EXHIBIT "F" (PURCHASE OPTION AGREEMENT) . . . . . . . . . . . . . . 48
EXHIBIT "G" (PROPERTY) . . . . . . . . . . . . . . . . . . . . . . 49
EXHIBIT "H" (CONTRACT FOR SALE) . . . . . . . . . . . . . . . . . . 50
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LEASE SUMMARY OF THE BUSINESS TERMS
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This paragraph 1 represents a Lease Summary of the Business Terms of this
Lease.
1.1. Date of Execution: April 8, 1999
1.2. Parties:
(a) Lessor: Edwards Interchange II, LLC
(Notices): X.X. Xxx 000, Xxxx, XX 00000
Telephone Number: (000)000.0000
(b) Lessee: Colorado Business Bank National Association
Trade Name:
Address (Premises): B-201 & X000, Xxxxxxxxx Xxxxxx, 000 Xxxxxxx Xxxxxx
Xxxx, Xxxxxxx, XX 00000
Address (Notices): 000 00xx Xx. Xxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxx, President
Telephone Number: (000)000-0000
(c) Guarantor: NA
1.3 Premises:
(a) Project/Building: Northstar Center, Building B
(b) Unit Description: B201 & B202 consisting of 2320 sqft gros
(c) Lessees Prorata Share of Common Costs: 27.49% upper level
12.41% entire Bldg
1.4 Term:
(a) Initial Term: Five (5) Years
(b) Estimated Date of Delivery of Possession: April 9, 1999
(c) Lease Commencement date: Xxxxx 0, 0000
(x) Lease Expiration date: Five years from Lease Commencement Date.
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1.5 Rent:
(a) Base Monthly Rent: $4,350 1st Year ($22.50/sqft)
(b) Rent Commencement Date: June 1, 1999
(c) Base Index
(d) Rent Adjustment: Refer to Section 5.2 Hereof.
(e) Prepaid Rent: $3,635 ($4350 - $715 as described below)
1.6 Options to Renew: Two (2) Five Year Options to Renew
1.7 Security Deposit: $8,700.00
1.8 Use of Premises: Bank
1.9 Tenant Improvements: Responsibility of Lessee.
Lessee shall receive a Tenant Improvement
Allowance of $10,715 ($5/sqft) payable to
Lessee from Lessor as a reduction in monthly
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rent as follows:
Rent Before Reduction = $4,350
June 1999 rent = $3635
July 1999 through & including
April 2000 = $3350.
Lessee shall be permitted by Lessor to make
minor alterations to the exterior of the
premises to allow for an ATM machine and
a night deposits drop. Lessee shall present
all plans for said alterations to Lessor for
Lessor's written approval prior to
commencement of said alterations.
1.10 Brokerage Firm:
C
(a) Lessor's Broker: Xxxxxxxxxxx Xxxxxx Real Estate, Inc
(b) Lessee s Broker: Xxxxxxxxxxx Xxxxxx Real Estate, Inc
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2. PARTIES.
2.1 This Lease, dated (for reference purposes only), April 8, 1999, is
made by and between Edwards Interchange Limited Liability CO.,LLC,
(herein called Lessor) and Colorado Business Bank National
Association, (herein called Lessee). Lessor and Lessee are further
described in Paragraph 1.2, the Lease Summary of Business Terms.
3. PREMISES.
3.1 Leased Premises. Lessor hereby Leases to Lessee and Lessee leases
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from Lessor, the "Leased Premises' described in Paragraph 1.3 of the
Lease Summary of Business Terms.
3.2 Building Project. The Premises are located in a multi-tenant
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commercial facility described in Paragraph 1.3, "the Project", which
is the real property including the land and all improvements thereon,
described in Exhibit "A".
4. TERM.
4.1 The Initial Term shall be for the period stated in the Lease Summary
of Business Terms unless terminated pursuant to any provisions hereof.
The term "Lease Year" as used herein means each successive period of
twelve (12) calendar months beginning on the date of commencement of
this Lease (the "commencement Date") and ending on each successive
anniversary of such Commencement Date.
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5. RENT.
5.1 Rent. The Lessee agrees to pay the Lessor a fixed minimum annual
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rental for each Lease Year during the term of the Lease, which rent is
specified in Paragraph 1.5.(a) in the Lease Summary of Business Terms.
This minimum rental is payable in equal monthly installments due on
the first day of each calendar month during the term hereof without
prior demand.
5.2 Rental increases - Initial Term. Commencing on the first anniversary
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date of the commencement date of this Lease and annually thereafter
during the term of this Lease, the minimum annual rental shall be
adjusted upward the amount of four (4%) percent.
- (A) Rental increases - Option Period(s). For the first year of the
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Option Period rents shall be determined at market value for like
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kind commercial spaces in Edwards, CO., but shall not be less
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than the previous year's rent. Commencing on the first
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anniversary date of the commencement date of the Option Period
and annually thereafter, the minimal annual rental shall be
adjusted upward, based on increases (if any) in the cost of
living during the preceding year using the "Consumer Price Index"
and more particularly described in the Paragraph 5.3. Said annual
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increases shall not be less than 3% nor greater than 8%.
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5.3 Consumer Price. "Price Index shall mean the Consumer Price Index All
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Urban Consumers (CPIU)-U.S. City Average, or a successor or substitute
index published or authorized by the United States Department of
Labor, Bureau of Labor Statistics. The "Base Index" for this Lease
shall be as stated in Paragraph 1.5(c), in the Lease Summary of
Business Terms.
5.4 Adjustment Formula. The following formula shall be used for
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determining the adjustment, if any, in the fixed minimum annual rent:
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Current Index Number = "Price Index" for the month immediately
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Base Index Number preceding the adjustment date"
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"Price Index" for the first month of the previous year
5.5 Computing Increases.
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(a) As promptly as practicable after the commencement of the first
adjustment year, and thereafter as promptly as practicable after
the first year of each succeeding adjustment year Lessor shall
compute the increase if any in the cost of living for the year
immediately preceding said adjustment year. Such computation
shall be made by use of current and base index numbers provided
for each adjustment year as set forth in Paragraph 1 5(d) in the
Lease Summary of Business Terms, and Paragraph 5.4 above.
(b) In computing increases for each adjustment year the current index
number shall be divided by the base index number. From the
quotient thereof, there shall be subtracted the integer I and any
resulting positive number shall be deemed to be the percentage of
increase of cost of living; The percentage of increase in the
cost of living shall be multiplied by the minimum annual rental
including increases for the year preceding the adjustment year
for which the increase is being computed Not withstanding the
calculation set forth herein, the rental amount payable
hereinafter shall never decrease.
5.6 Notification of rental increase. The Lessor shall, within a
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reasonable period of time after obtaining the appropriate data
necessary for computing such increases, give the Lessee notice of any
increase so determined. Lessee shall, within thirty (30) days after
the receipt of such notice, notify the Lessor of any error in the
calculations and upon such notification, Lessor shall correct such
error. However, nothing herein shall be construed to extend the time
as provided in Paragraph 5.1 above when rents as determined by Lessor
are due and payable by Lessee.
5.7 Minimum Rent. Minimum annual rent for each adjustment year together
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with increases calculated in accordance with Paragraph 5.4 through 5.6
of this Paragraph 5, shall be due and payable to the Lessor in equal
monthly installments due on the first day of each calendar month of
each adjustment year (retroactive payments then due being payable
within
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thirty (30) days after giving notice thereof by Lessor to Lessee at
the address set forth in the Lease Summary of Business Terms.
5.8 Publication of Consumer Price Index. If publication of the pertinent
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Consumer Price Index shall be discontinued, the parties hereto shall
hereafter accept comparable statistics on the cost of living for the
average of all U.S. cities, all items, as the same shall be computed
and published by an agency of the United States or by a responsible
financial periodical of recognized authority shall to be selected by
the parties hereto. In the event of (1) use of comparable statistics
in place of the Consumer Price Index as above mentioned, or (2)
publication of the index figures at other than bi-monthly intervals,
there shall be made in the method of computation above provided
revision as the circumstances may require to carry out the intent of
this Article.
5.9 Additional Rent. Any monetary obligation of Lessee to Lessor under
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the terms of this Lease shall be deemed to be additional rent.
6. SECURITY DEPOSIT.
6.1 Security Deposit. As security for Lessee's faithful performances of
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Lessee's obligations Lessee shall deposit with Lessor upon execution
hereof the sum as stated in Paragraph 1.7 of the Summary of Lease
Business Terms. If Lessee fails to pay rent or other charges
hereunder, or otherwise defaults with respect to any provisions of
this Lease. Lessor may use, apply or retain all or any portion of
said deposit for the payment of any rent or other charge in default or
for the payment of any other sum to which Lessor may become obligated
by reason of Lessee's default or to compensate Lessor for any loss or
damage which Lessor may suffer thereby. If Lessor uses or applies all
or any portion of said deposit, Lessee shall within ten (10) days
after written demand thereof deposit cash with Lessor in an amount
sufficient to restore said deposit to the full amount herein above
stated and Lessee's failure to do so shall be a material breach of
this Lease. If the monthly rent shall, from time to time, increase
during the term of the Lease, Lessee shall thereupon deposit with the
Lessor additional security deposit so that the amount of security
deposit held by Lessor shall at all times bear the same proportion to
current rent as the original security deposit bears to the original
monthly rent set forth in Paragraph 1.7, Lease Summary of Business
Terms. Lessor shall not be required to keep said deposit separate
from its general accounts. If
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Lessor performs all of Lessee's obligations hereunder, said deposit,
or so much thereof as has not theretofore been applied by Lessor,
shall be returned, without payment of interest or other increment for
its use, to Lessee (or, at Lessor's option, to the last assignee, if
any, of Lessee's interest hereunder) at the expiration of the term
hereof, and after Lessee has vacated the Premises. No trust
relationship is created herein between Lessor and Lessee with respect
to said Security Deposit.
7. USE OF THE PREMISES.
7.1 Use. The Premises shall be used and occupied for the Use as stated in
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Paragraph 1.8, of the Summary of Business Terms attached hereto and
made apart hereof by this reference and any other use which is
reasonably comparable and approved by Lessor in writing and for no
other purpose.
7.2 Compliance with Law.
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(a) Lessor warrants to Lessee that the Premises, in the state
existing on the date that the Lease term commences, but without
regard to the use for which Lessee will use the Premises, does
not violate any covenants or restrictions of record, or any
applicable building-code, regulation or ordinance in effect on
such Lease term commencement date Lessee shall comply with all
laws, ordinances, orders, and regulations affecting the Premises
and the cleanliness, safety and use of the same, including
installation of additional facilities as required for the conduct
and continuance of Lessee's business on the Premises. In the
event it is determined that this warranty has been violated, then
it shall be the obligation of the Lessor to promptly, at Lessor's
sole cost and expense, rectify any such violation. The warranty
contained in this Paragraph 8.2 shall be of no force or effect
if, prior to the date of this Lease, Lessee was the owner or
occupant of the Premises, and, in such event, Lessee shall
correct any such violation at Lessee's sole cost.
(b) Except as provided in Paragraph 8.2(a) Lessee shall not use or
occupy or permit the Premises or any part thereof to be used or
occupied for any unlawful or illegal business use or purposes
deemed by the Lessor to be disreputable or hazardous, nor in such
manner as to constitute a nuisance of any kind, or in violation
of any present or future laws, rules requirements, orders,
directions, ordinances or regulations affecting the Premises or
regulations of the United States of America, State of Colorado,
County of Eagle, or other
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municipal, governmental or lawful authority whatsoever Lessor
shall not create waste or a nuisance which shall lend to disturb
other tenants.
7.3 No Insurance Rate Increase. Lessee shall not do or permit anything lo
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be done in or about the Leased Premises or bring anything therein
which will in any way increase the rate of fire or liability insurance
upon the Building wherein the Premises are situated Lessee shall, at
its sole cost and expense, comply with any and all requirements
pertaining to the Premises of any insurance company necessary for the
maintenance of reasonable fire and public liability insurance covering
the Leased Premises.
7.4 Auctions. No auction for fire or bankruptcy sales may be conducted on
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the Premises without Lessor's prior written consent.
7.5 Maintain Premises. Lessee covenants that it will exercise the highest
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duty of care to maintain the Leased Premises in a clean condition.
7.6 Acts of Lessee. Lessee shall not perform any act or carry on any
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practices which may injure the Building of which the Premises are a
part or be a menace to other tenants in said Building or Project.
Lessee shall not permit excessive noise, noxious or offensive odors to
exist in and around the leased premises.
7.7 Preparation and Acceptance of the Premises.
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(a) Lessor shall construct, at its own expense, the Building and the
Premises according to the plans and specifications ("Plans and
Specifications") attached to and made a part of this Lease by
reference and approved by the Lessor and the Lessee. All
licenses, permits, and the like shall be obtained at Lessor's
expense and the Premises shall be constructed in compliance with
all applicable building codes and municipal and state and Federal
laws and regulations Lessor shall substantially complete the
Premises on or before the Commencement Date. The Premises shall
be deemed to have substantially completed when all of the
following shall have occurred: (i) when the Premises has been
entirely completed in accordance with the Plans and
Specifications except for minor items such as touching-up and
finishing, the completion of which will not unreasonably
interfere with Lessee's normal business operations on the
Premises; (ii) A temporary or permanent certificate of occupancy
authorizing use of the Premises by Lessee shall have been issued
by the appropriate governmental authorities, (iii) Lessor
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shall have sent Lessee written notice at Lessee's address that
all of the foregoing have occurred. The taking possession of the
Premises by Lessee shall be conclusive evidence against Lessee
that the Premises were in good and satisfactory condition when
possession was taken. Entry into the Premises by Lessee solely
for the purpose of performing Lessee's work in finishing the
Premises shall be deemed taking possession of the Premises by
Lessee, but shall not be the Lease Commencement Date.
7.8 A breach of any of the terms or conditions contained in this Paragraph
7 shall constitute a material breach of this Lease.
8. TENANT IMPROVEMENTS, MAINTENANCE, REPAIRS AND ALTERATIONS.
8.1 Tenant Improvements. Lessee shall be responsible for all Tenant
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Improvements including fixtures, interior finishing, and interior
demising wall, provided Lessor shall supply exterior (perimeter)
walls. Lessor shall supply appropriate HVAC-system, electrical,
telephone, television and electrical panels, gas, water and sewer
stubbed to the Premises Lessor must approve all tenant improvements,
submitted in writing by Lessee, prior to installation.
8.2 Lessor's Obligations. Subject to the provisions of Paragraphs 7, 8.3
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and 10 and except for damage caused by any negligent or intentional
act or omission of Lessee, Lessee's agents employees or invitees in
which event Lessee shall repair the damage, Lessor shall keep in good
order, condition and repair the foundations, exterior walls and
exterior roof of the Premises and common area of the Property, herein
referred to as capital improvements Lessor shall not be required to
maintain the interior surface of exterior walls, windows, doors
skylights or plate glass of the Premises.
8.3 Lessee's Obligations. Subject to the provisions of Paragraphs 1.3(c),
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7, 8.2 & 10, Lessee, at Lessee's expense, shall keep in good order,
condition and repair the Premises and every part thereof including,
without limiting the generality of the foregoing, all plumbing,
heating, air-conditioning systems (Lessee shall procure and maintain,
at Lessee's expense, a ventilating and air conditioning system
maintenance contract), electrical and lighting facilities and
equipment within the Premises, fixtures, interior walls and interior
surface of exterior walls, ceilings, windows, doors, plate glass and
skylights, located within the Premises. Lessee shall be responsible
to pay to Lessor its
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pro-rata share of the cost to maintain all of the common area,
landscaping, snow removal, driveways, parking lots, fences, signs,
except for Tenant signs, located in the Project, and as specified in
Paragraphs 1.3(c) and 10 below and all sidewalks adjacent to the
Lessee's Premises. If Lessee fails to perform Lessee's obligations
under this Paragraph 8.3 or under any other paragraph of this Lease,
Lessor may at Lessor's option enter upon the Premises after ten (10)
days prior written notice to Lessee (except in the case of emergency,
in which no notice shall be required), perform such obligations on
Lessee's behalf and put the Premises in good order, condition and
repair, and the cost thereof together with interest thereon at the
rate of 18% per annum shall be due and payable as additional rent to
Lessor together with Lessee's next rental installment.
8.4 Installation, Alterations and Additions.
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(a) Lessee shall not, without Lessor's prior written consent make any
installations, alterations, improvements, additions or Utility
Installations, in or about the Premises, except for nonstructural
alterations not exceeding Two Thousand Five Hundred dollars
($2,500.00) during any one calendar year. Lessee shall make no
change or alteration to the exterior of the Premises nor to any
of the buildings or structures located in the Project, without
Lessor's prior written consent. If Lessor shall give its
consent, the consent shall be deemed conditioned upon Lessee
acquiring a permit to do so from appropriate governmental
agencies, the furnishing of a copy thereof to Lessor prior to the
commencement of the work and the compliance by Lessee of all
conditions of said permit in a prompt and expeditious manner. As
used in this Paragraph 8.4, the term "Utility Installation" shall
mean carpeting, window coverings, air lines, power panels,
electrical distribution systems, lighting fixtures, space
heaters, air conditioning, heating, and plumbing. Lessor may
require that Lessee remove any or all of said alterations
improvements, additions or Utility Installations, performed by
Lessee, at the expiration of the term, and restore the Premises
to their prior condition. Lessor may require Lessee to provide
Lessor, at Lessee's sole cost and expense, a lien and completion
bond in any amount equal to one and one-half (1 1/2) times the
estimated cost of such improvements, to insure Lessor against any
liability for mechanics and materialmen's liens and to insure
completion of the work. Should Lessee make any alterations,
improvements, additions or utility installations without the
prior approval of Lessor,
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Lessor may require that Lessee remove any or all of the same.
8.5 Mechanics/Materialman's Liens. Lessee shall pay, when due all claims
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for labor or materials furnished or alleged to have been furnished to
or for Lessee at or for use in the Premises, which claims are or may
be secured by any mechanics' or materialmans' lien against the
Premises or the Project or any interest thereon. Lessee shall give
Lessor not less than ten (10) days notice prior to the commencement of
any work in the Premises, and Lessor shall have the right to post
notices of non-responsibility in or on the Premises or Project as
provided by law. If Lessee shall, in good faith, contest the validity
or any such lien, claim or demand, then Lessee shall, at its sole
expense defend itself and Lessor against the same and shall pay and
satisfy any such adverse judgment that may be rendered thereon before
the enforcement thereof against the Lessor, the Premises or the
Project, upon the condition that if Lessor shall require, Lessee shall
furnish to Lessor a surety bond satisfactory to Lessor in an amount
equal to such contested lien claim or demand indemnifying Lessor
against liability for the same and holding the Premises free from the
effect of such lien or claim. Should Lessee make any alterations,
improvements, additions or Utility Installations without the prior
written approval of Lessor, Lessor may require that Lessee remove any
or all of the same.
8.6 Removal of Tenant Improvements. On the last day of the term hereof or
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on any sooner termination, Lessee shall surrender the Premises to
Lessor in the same condition received, ordinary wear and tear
excepted, clean and free of debris. Upon termination of the Lease
term, all Lessor and Lessee installed tenant improvements shall become
a part of the Premise which Lessee shall not remove unless said
improvements are Lessee's trade fixtures, furnishing and equipment, in
which case Lessee shall repair any damage to the Premises occasioned
by the installation and removal of its trade fixtures.
Notwithstanding anything to the contrary otherwise stated in this
Lease, Lessee shall leave power and telephone panels, electrical,
telephone and television distribution systems, lighting fixtures,
heating and air-conditioning systems, plumbing in good operating
condition.
8.7 Emergency. In the event of an emergency, and the Premises require
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immediate emergency work, Lessee may perform emergency work to the
capital improvements necessary to protect property or life as long as
said emergency work does not exceed two thousand five hundred dollars
($2,500.00). Lessee shall make all reasonable efforts to notify
Lessor of
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the emergency but in no case shall Lessee notify Lessor more than one
(1) business day from the date of emergency.
8.8 Reimbursement. Lessor shall reimburse Lessee for the expenses of any
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repairs or emergency work performed which the Lessee may be required
to make which are occasioned by the acts or negligence of Lessor, its
agents, employees, invitees or licensees, and Lessee shall reimburse
Lessor for the expense of any repair which Lessor may be required to
make which are occasioned by the acts or negligence of Lessee, its
agent, employees, invitees or licensees: provided, however, that the
responsible party must be given notice of the maintenance or repair
item and a reasonable time to repair the same before the other party
shall be entitled to perform the necessary maintenance or repair.
8.9 Lessor Liability. Per this Paragraph 8, Lessor shall not be liable to
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Lessee or to any other person whatsoever for any damage arising from
the leakage, obstruction, interruption, failure or discontinuance of
all or any part of any utility or utility system in or about the
Premises or the Building, or from water being upon or coming through
the roof or vents, due to causes other than negligence of Lessor, nor
for any damage arising from any acts or negligence of co-tenants or
other occupants of the Building or adjacent property, or the public.
9. COMMON AREA.
9.1 Common Area Use. Subject to the terms and conditions of this Lease
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and such rules and regulations as Lessor may from time to time
prescribe, Lessee and Lessee's employees, invitees, and customers
shall, in common with other occupants of the Project and their
respective employees, invitees, and customers and others entitled to
the use thereof, have the nonexclusive right to use the access roads,
parking areas, arcades and facilities provided and designated by
Lessor for the general use and convenience of the occupants of the
Project which areas and facilities are referred to herein as "Common
Area". This right shall terminate upon the termination of this Lease.
Lessor reserves the right from time to time to make changes to the
shape, size location amount and extent of the Common Area, provided
however, that such changes do not adversely affect Lessee's ability to
conduct his business in the Premises. Lessor further reserves the
right to promulgate such rules and regulations relating to the use of
the Common Area, and any parts thereof, as may be reasonably
appropriate for the best interest of the occupants of the Parcel. The
rules and
14
regulations shall be binding upon Lessee upon delivery of a copy of
them to Lessee and Lessee shall abide by them and cooperate in their
observance. Such rules and regulations may be amended by Lessor from
time to time, with or without advance notice, and all amendments shall
be effective upon delivery of a copy to Lessee. Lessor shall not
permit the parking of Lessee's vehicles or trucks or the vehicles or
trucks of Lessee's suppliers or others in any portion of the Common
Area that are not designated by Lessor for such use by Lessee. Lessee
shall not abandon any inoperative vehicles or equipment on any portion
of the Common Area. Lessee shall make no alterations, improvements or
additions to the Common Area.
9.2 Maintenance of Common Area. Lessor shall operate, manage, maintain
--------------------------
and repair the Common Area in good order, condition and repair. The
manner in which the Common Area shall be maintained shall be at the
discretion of Lessor and expenditures for such maintenance shall be
reasonable. The cost of such repair, maintenance, operation and
management, including without limitation, maintenance and repair of
landscaping, irrigation systems, paving, sidewalks, fences, interior
walk ways, fences and lighting, shall be a Common Area Charge and
Lessee shall pay its prorata share of such costs as specified in
Paragraph 1.3(c) and provided in Paragraph 10 below.
10. COMMON AREA CHARGES.
10.1 Lessee shall pay to Lessor, as additional rent, as defined in
Paragraph 5.7, upon demand but not more often than once each calendar
month, an amount equal to that percentage or prorata share of the
Common Area charges as stipulated in Paragraph 1.3(c) of the Lease
Summary of Business Terms.
11. INSURANCE; INDEMNITY.
11.1 Liability Insurance - Lessee. Lessee shall at Lessee's expense,
----------------------------
obtain and keep in force during the term of this Lease a policy of
Combined Single Limit Bodily Injury and Property Damage Insurance,
written by one or more responsible insurance companies licensed to do
business in the State of Colorado, insuring Lessee and Lessor against
any liability arising out of the use, occupancy or maintenance of the
Premises and all other areas appurtenant thereto. Such insurance
shall be in an amount not less than one million dollar ($1,000,000.00)
-------------------------------------------------------
per occurrence. The policy shall insure performance by Lessee of the
--------------
indemnity provisions of this Section 11. The limits of said insurance
15
shall not, however, limit the liability of Lessee hereunder. Lessor
shall be a named additional insured.
11.2 Property Insurance - Lessee Property. Lessee shall at Lessee's
------------------------------------
expense, obtain and keep in force during the term of this lease a
policy of fire insurance covering loss or damage to the Premises, its
tenant improvements, furniture, fixtures and equipment in the Premises
with the extent of at least 80% of their insurable value, the proceeds
of which will, so long as the Lease is in effect, be used for the
repair or replacement of the properties so insured. It is understood
that the Lessor shall have no interest in such insurance, and will
sign all documents necessary and proper in connection with the
settlement of any claim or loss by Lessee. Lessor shall be a named
additional insured.
11.3 Lessor's Fire, Extended Coverage and Liability.
----------------------------------------------
(a) Lessor shall pay for the cost of fire and extended coverage insurance
covering the Building and Project against loss or damage by fire and
by other risks now or hereafter embraced by "extended coverage" in the
amount of the full insurable value of the Building. Lessor, at
Lessor's expense, shall also maintain in full force during the lease
term comprehensive general liability with respect to the Building
covering bodily injury, death and damage to the property of others.
(b) For each Lease Year Lessee shall pay Lessee's prorata share of the
premiums for the above described insurance coverage, which amount
shall be payable in equal monthly installments due on the same day as
the minimum monthly rental payments are due hereunder without prior
notice. As promptly as possible following receipt by Lessor of its
annual insurance premium notice for the Building and/or Project, a
copy of the same shall be sent to the Lessee together with a statement
of any increase in Lessee future pro rata share which may be
necessitated by said premium notice for the Building and/or Project.
Lessee shall commence paying any such increased share on the day the
next minimum monthly rental payment is due hereunder.
11.4 Insurance Policies. Lessee shall deliver to Lessor copies of
------------------
policies of liability insurance required under Paragraph 11.1 or
certificates evidencing the existence and amounts of such insurance.
No such policy shall be cancelable or subject to reduction of coverage
or other modification except after thirty (30) days prior written
notice to Lessor. Lessee shall, at least thirty (30) days prior to
the expiration of such policies, furnish Lessor with
16
renewals or "binders" thereof, or Lessor may order such insurance and
charge the cost thereof to Lessee, which amount shall be payable by
Lessee upon demand. Lessee shall not do or permit to be done anything
which shall invalidate the insurance policies referred to in Section
11.
11.5 Waiver of Subrogation. Lessee and Lessor shall each hereby release
---------------------
and relieve the other, and waive their entire right of recovery
against the other for loss or damage arising out of or incident to the
perils insured against under Section 11, which perils occur in, on or
about the Premises, whether due to the negligence of Lessor or Lessee
or their agents, employees, contractors and/or invitees Lessee and
Lessor shall upon obtaining the policies of insurance required
hereunder, give notice to the insurance carrier or carriers that the
foregoing mutual waiver of subrogation is contained in this Lease.
11.6 Indemnity. Lessee shall indemnify and hold harmless Lessor from and
---------
against any and all claims arising from Lessee's use of the Premises,
or from the conduct of Lessee's business or from any activity, work or
things done, permitted or suffered by Lessee in or about the Premises
or elsewhere and shall further indemnify and hold harmless Lessor from
and against any and all claims arising from any breach or default in
the performance of any obligation of Lessee's to be performed under
the terms of this Lease, or arising from any act, omission or
negligence of the Lessee, or any of Lessee's agents, contractors or
employees and from and against all costs, attorney's fees and
liabilities incurred in the defense of any such claim or action or
proceeding brought thereon, and in case any action or proceeding be
brought against Lessor by reason of any such claim, Lessee upon
notice from Lessor shall defend the same at Lessee's expense by
counsel satisfactory to Lessor and Lessor shall cooperate with Lessee
in such defense. Lessee, as a material part of the consideration to
Lessor. hereby assumes all risk of damage to property or injury to
persons, in, upon or about the Premise arising from any cause,
provided however, that Lessor shall not be liable for any claims or
damage to property, or injury to persons in or about the Premises or
the Project arising from the acts omissions or negligence of the
Lessor, his agents, employees or invitees . Lessee's obligation to
indemnify the Lessor as provided above shall be limited to the sum
that exceeds the amount of insurance proceeds, if any, received from
Lessor's insurance carrier in payment of the Claim.
11.7 Exemption of Lessor from Liability. Lessee hereby agrees that Lessor
----------------------------------
shall not be liable for injury to Lessee's business or any loss of
income therefrom or for damage to the goods, wares, merchandise or
other property of Lessee, Lessee's employees, invites customers, or
any other person
17
in or about the Premises or the Project, nor shall Lessor be liable
for injury to the person of Lessee, Lessee's employees, invitees,
agents or contractors, whether such damage or injury is caused by or
results from fire, steam, electricity, gas, water, rain, snow or other
Acts of God or from the breakage, leakage, obstruction or other
defects of pipes, sprinklers, wires, appliances, plumbing, air
conditioning or lighting fixtures, or from any other cause, whether
the said damage or injury results from conditions arising upon
Premises, the Project or upon other portions of the building of which
the Premises are a part, or from other sources or places.
Notwithstanding the foregoing, Lessor shall be liable for such injury,
loss or damage as set forth above if the same is caused by the act
omission or negligence of the Lessor, his agents, employees or
invitees. Lessor shall not be liable for any damages arising from any
act or negligence of any other tenant, occupant or user, if any, of
the Project or Building in which the Premises are located.
12. TAXES.
12.1 Lessor's Payment of Real Property Tax. Lessor shall pay the real
-------------------------------------
property tax as applicable to the Premises and the Project as defined
in Paragraph 12.3. However, Lessee shall pay to Lessor Lessee's pro
rata share of all real estate taxes, assessments and other
governmental levies and charges, general and special, which are
assessed or imposed upon the underlying real property, the Building or
any part thereof, or become payable during the term of the Lease.
12.2 Definition of "Real Property Tax". As used herein, the term "real
---------------------------------
property tax" shall include any form of real estate tax or assessment,
general, special, ordinary or extraordinary, and any license fee,
commercial rental tax, improvement bond or bonds, levy or tax (other
than inheritance, personal income or estate taxes) imposed on the
Premises or Project by any authority having the direct or indirect
power to tax, including any city, state or federal government, or any
school, agricultural, sanitary, fire, street, drainage or other
improvement district thereof, as against any legal or equitable
interest of Lessor in the Premises or in the real property of which
the Premises are a part. The term "real property tax" shall also
include any tax, fee, levy, assessment or charge (i) in substitution
of, partially or totally, any tax, fee, levy assessment or charge
hereinabove included within the definition of "real property tax", or
(ii) the nature of which was included within the definition of "real
property tax", or (iii) which
18
is imposed by reason of this transaction, any modifications or changes
hereto, or any transfers hereof.
12.3 Lessee's Pro-rata Share. Payment of Lessee's prorata share of the
-----------------------
taxes as stated in Paragraphs 12.1 and 12.2, shall be payable by
Lessee within thirty (30) days after receipt of Lessor's written
statement accompanied by the statement from Eagle County, Colorado,
setting forth the amount of the taxes being charged to the Lessee.
12.4 Personal Property Taxes.
-----------------------
(a) Lessee shall pay prior to delinquency all taxes assessed against
and levied upon trade fixtures, equipment and all other personal
property of Lessee contained in the Premises or elsewhere. When
possible, Lessee shall cause said trade fixtures, furnishing,
equipment and all other personal property to be assessed and
billed separately from the real property of Lessor.
(b) If any of Lessee's said personal property shall be assessed with
Lessor's real property, Lessee shall pay Lessor the taxes
attributable to Lessee within ten (10) days after receipt of
written statement setting forth the taxes applicable to Lessee's
property supported by the appropriate tax statement from the
taxing authority.
13. UTILITIES.
13.1 Lessee's Utilities. Lessee shall provide and pay for all electrical,
------------------
television, telephone, gas separately metered to the Premises. Upon
written notice thereof, supported by appropriate invoices, Lessee
shall pay Lessee's prorata share of common gas, electricity, and sewer
and water costs associated with the operation of the Building and the
Project as additional rent payable in equal monthly installments due
on the same day as the minimum monthly rent
13.2 With regard to all utilities, it is mutually agreed that Lessor shall
not be liable in damages or otherwise for any interruption or failure
thereof when such interruption or failure is not due to the negligence
of Lessor.
13.3 Lessee's Facilities. Lessee further agrees that Lessee will not
-------------------
install any equipment which will exceed or overload the capacity of
any Utility Facility and that if any equipment installed by Lessee
shall require additional Utility
19
Facilities, the same shall be installed and maintained at Lessee's
expense in accordance with the plans and specifications which have
received prior written approval by Lessor. Such approval shall not be
unreasonably denied.
14. ASSIGNMENT AND SUBLETTING.
14.1 Lessor's Consent Required. Except as provided herein, Lessee shall
-------------------------
not assign this Lease nor any interest herein, or encumber, mortgage
or hypothecate this Lease or any interest herein, or permit the use of
the Premises by any person or persons other than Lessee, or sublet the
Premises in whole or in part without the Lessor's prior written
consent, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing, Lessee shall have the absolute right to
assign this Lease to any corporation in which Lessee owns not less
than 50% of the stock or any Limited Liability Company, Partnership or
Limited Partnership in which Lessee has not less than a 50% interest.
If Lessee is a corporation, any sale or other transfer of the stock of
such corporation which results in the present shareholders therein
owning less than 50% of the stock thereof shall be deemed an
assignment of this Lease, requiring the prior written consent of
Lessor. Lessor shall respond to Lessee's request for consent
hereunder in a timely manner and any attempted assignment, transfer,
mortgage, encumbrance or subletting without such consent shall be null
and void and without force or effect and shall constitute a breach of
this Lease. Any assignee must acknowledge in writing compliance with
all exclusive uses in the Building. For purposes of this section, a
tenant shall be viewed as an acceptable tenant for either sublet or
assignment, if such tenant shall meet the business and financial
standards of any previous and/or existing tenants.
14.2 Release of Lessee. Upon Lessor's consent, an assignment shall
-----------------
release the Lessee of Lessee's obligation to pay the rent and to
perform all obligations to be performed by Lessee hereunder After an
assignment, all such obligations shall become the responsibility of
the Assignee. Consent to one assignment or subletting shall not be
deemed consent to any subsequent assignment or subletting.
14.3 Attorney's Fees. In the event Lessee shall assign or sublet the
---------------
Premises or request the consent of Lessor for what Lessee proposes to
do, then Lessee shall pay Lessor's reasonable attorneys fees incurred
in connection therewith, such attorney's fees shall not be less than
Three Hundred Fifty Dollars ($350.00) for each such request.
20
15. DAMAGE AND DESTRUCTION.
15.1 Definitions.
-----------
(a) "Premises Partial Damages" "Premises Partial Damages" shall
--------------------------
herein mean damage or destruction to the Premises to the extent
that the cost of repair is less than fifty percent (50%) of the
fair market value of the Premises immediately prior to such
damage or destruction. "Premises Building Partial Destruction"
shall mean damage or destruction to the building of which the
Premises are a part to the extent that the cost of repair is less
than fifty percent (50%) or more of the Fair Market Value, as
defined in Paragraph 15.1(d) below, of such building as a whole
immediately prior to such damage or destruction.
(b) "Premises Total Destruction". "Premises Total Destruction" shall
----------------------------
mean damage or destruction to the Premises to the extent that the
cost of repair is fifty (50%) or more of the fair market value of
the Premises immediately prior to such damage or destruction
"Premises Building Total Destruction" shall mean damage or
destruction to the Building of which the Premises are a part to
the extent that the cost of repair is fifty percent (50%) or more
of the fair market value, as defined in Paragraph 15.1(d) below
of such building as a whole immediately prior to such damage or
destruction.
(c) "Insurance Loss". Insurance Loss" shall herein mean damage or
----------------
destruction which was caused by an event required to be covered
by the insurance described in Paragraph 11.
(d) "Fair Market Value". In order to determine the Fair Market Value
-------------------
the parties shall meet and endeavor to agree upon the Fair Market
Value of the Premises. In determining the Fair Market Value for
the Premises, the Premises shall be compared only to buildings of
similar quality and size with similar improvements in the
Avon/Xxxxxxx, Colorado area. If within fifteen (15) days after
said meeting, the parties cannot agree upon the Fair Market Value
of the Premises, the parties shall submit the matter to binding
appraisal in accordance with the following procedure. Within
thirty (30) day after the date of the first meeting, the parties
shall either (a) jointly appoint an appraiser for this purpose or
(b) failing this joint action, separately designate a
disinterested appraiser. No person shall appoint or designate an
appraiser unless
21
the appraiser has at least five (5) years experience in
appraising major commercial properties in the Avon/Xxxxxxx area
and is a member of a recognized society of real estate
appraisers. If the two (2) appraisers, thus appointed, cannot
reach agreement on the question presented within thirty (30) days
after their appointment, then the appraisers thus appointed shall
appoint a third (3rd) disinterested appraiser having like
qualifications. If within twenty (20) days after the appointment
of the third (3rd) appraiser, a majority of the appraisers cannot
reach agreement on the question presented, then the appraisal
furthest from the median of the three (3) appraisals shall be
disregarded and the mean average of the remaining two (2) shall
be used to determine the question presented and shall be binding
and conclusive. Each party shall pay the fees and expenses of the
appraiser appointed by it and shall share equally the fees and
expenses of the third (3rd) appraiser. If the two (2) appraisers
appointed by the parties cannot agree on the appointment of the
third (3rd) appraiser, they or either of them shall give notice
of such failure to agree to the parties and if the parties fail
to agree upon the selection of such third (3rd) appraiser within
ten (10) days after the appraisers appointed by the parties give
such notice, then either of the parties upon notice to the other
party, may request such appointment by the American Arbitration
Association, or on its failure, refusal or inability to act may
apply for such appointment to the Presiding Judge of the District
Court of Eagle County, Colorado.
15.2 Partial Damage - Insured Loss. Subject to the provisions of
-----------------------------
Paragraphs 15.4, 15.5 and 15.6, if any time during the term of this
Lease there is damage which is an Insured Loss and which falls into
the classification of Premises Partial Damage or Premises Building
Partial Damage, then Lessor shall, at Lessor's sole cost repair such
damage, but not Lessee's fixtures, equipment or tenant improvements,
as soon as reasonably possible and this Lease shall continue in full
force and effect.
15.3 Partial Damage - Uninsured Loss. Subject to the provisions of
-------------------------------
Paragraphs 15.4, 15.5, 15.6, if any time during the term of this Lease
there is damage which is not an Insured Loss and which falls within
the classification of Premises Partial Damage or Premises Building
Partial Damage, unless caused by a negligent or willful act of Lessee
(in which event Lessee shall make the repairs at Lessee's expense),
Lessor may at Lessor's option either (i) repair such damage as soon as
reasonably possible at Lessor's expense, in which case this Lease
shall continue in full force and effect, or
22
(ii) give written notice to Lessee within in thirty (30) days after
the date of the occurrence of such damage of Lessor's intention to
cancel and terminate this Lease, as of the date of the occurrence of
such damage. In the event Lessor elects to give such notice of
Lessor's intention to cancel and terminate this Lease, Lessee shall
have the right within ten (10) days after the receipt of such notice
to give written notice to Lessor of Lessee's intention to repair such
damage at Lessee's expense, without reimbursement from Lessor, in
which event this Lease shall continue in full force and effect, and
Lessee shall proceed to make such repairs as soon as reasonably
possible. If Lessee does not give such notice within such ten (10) day
period this Lease shall be canceled and terminated as of the date of
the occurrence of such damage.
15.4 Total Destruction. If at any time during the term of this Lease
-----------------
there is damage, whether or not an Insured Loss, (including
destruction required by any authorized public authority), which falls
into the classification of Premises Total Destruction or Premise
Building Total Destruction, the Lease shall automatically terminate as
of the date of the total destruction.
15.5 Damage Near End of Term.
-----------------------
(a) If at any time during the last six (6) months of the term of this
Lease there is damage, whether or not an Insured Loss, which
falls within the classification of Premises Partial Damage,
Lessor or Lessee may cancel and terminate this Lease as of the
date of occurrence of such damage by giving written notice to the
other of their election to do so within thirty (30) days after
the date of occurrence of such damage.
(b) Notwithstanding Paragraph 15.5(a), in the event that Lessee has
an option to extend and renew this Lease, and the time within
which said option may be exercised has not yet expired, Lessee
shall exercise such option, if it is to be exercised at all, no
later than twenty (20) days after the occurrence of an Insured
Loss falling within the classification of Premises Partial Damage
during the last six (6) months of the term of the Lease. If
Lessee duly exercises such option during said twenty (20) day
period, Lessor shall at Lessor's expense, repair such damage as
soon as reasonably possible and this Lease shall continue in full
force and effect. If Lessee fails to exercise such option during
said twenty (20) day period, then Lessor may at Lessor's option
terminate and cancel this Lease as of the expiration of said
twenty (20) day period by giving
23
written notice to Lessee of Lessor's election to do so within ten
(10) days after the expiration of said twenty (20) day period,
notwithstanding any term or provision in the grant of option to
the contrary.
15.6 Abatement of Rent; Lessee's Remedies.
------------------------------------
(a) In the event of damage described in Paragraphs 15.2 or 15.3, and
Lessor or Lessee repairs or restores the Premises pursuant to the
provision of this Section 15, there shall be a reduction of the
rent and all Common Area Charges and Taxes payable hereunder
equal to the proportion that the portion of the rentable area
rendered untenable by the damage bears to the rentable area
before the damage, from the date of the occurrence of the damage
until the date when the repairs which Lessor is obligated to make
are completed sufficiently to enable Lessee to operate his
business in the Premises. Except for such abatement of the Rent,
Lessee shall have no claim against Lessor for any damage suffered
by reason of any such damage, destruction, repair or restoration.
(b) If Lessor shall be obligated to repair or restore the Premises
under the provisions of this Section 15 and shall not commenced
such repair or restoration within ninety (90) days after such
obligations shall accrue, Lessee may at Lessee's option cancel
and terminate this Lease by giving Lessor written notice of
Lessee's election to do so at any time prior to the commencement
of such repair or restoration. In such event this Lease shall
terminate as of the date of such notice.
15.7 Termination - Advance Payments. Upon termination of this Lease
------------------------------
pursuant to this Paragraph 15, an equitable adjustment shall be made
concerning advance rent and any advance payments made by Lessee to
Lessor. Lessor shall, in addition, return to Lessee so much of
Lessee's security deposit as has not theretofore been applied by
Lessor.
16. DEFAULTS; REMEDIES.
16.1 Default. The occurrence of any one or more of the following events
-------
shall constitute a material default and breach of the Lease by Lessee:
(a) The vacating or abandonment of the Premises by Lessee.
24
(b) The failure by Lessee to make any payment of rent or any other
payment required to be made by Lessee hereunder, as and when due,
where such failure shall continue for a period of three days
after written notice thereof from Lessor to Lessee. In the event
that Lessor serves Lessee with a Notice to Pay Rent or Quit
pursuant to applicable Unlawful Detainer statutes such Notice to
Pay Rent or Quit shall also constitute the notice required by
this subparagraph.
(c) The failure by Lessee to observe or perform any of the covenants,
conditions or provisions of this Lease to be observed or
performed by Lessee, other than described in Paragraph 16.1(b)
above, where such failure shall continue for a period of thirty
(30) days after written notice thereof from Lessor to Lessee:
provided, however, that if the nature of Lessee's default is such
that more than thirty (30) days are reasonably required for its
cure, then Lessee shall not be deemed to be in default if Lessee
commenced such cure within said thirty (30) day period and
thereafter diligently prosecutes such cure to completion.
(d) (i) The making by Lessee of any general arrangement or assignment
for the benefit of creditors; (ii) Lessee becomes a "debtor" as
defined in 11 U.S.C., Section 101 or any successor statue thereto
(unless, in the case or a petition filed against Lessee, the same
is dismissed within sixty (60) days); (iii) the appointment of a
trustee or receiver to take possession or substantially all of
Lessee's assets located at the Premises or of Lessee's interest
in this Lease, where possession is not restored to Lessee within
thirty (30) days: or (iv) the attachment, execution or other
judicial seizure of substantially all of Lessee's assets located
at the Premises or of Lessee's interest in this Lease, where such
seizure is not discharged within thirty (30) days Provided,
however, in the event that any provision of this Paragraph
16.1(d) is contrary to any applicable law, such provisions shall
be of no force or effect.
(e) The discovery by Lessor that any financial statement given to
Lessor, by Lessee, an assignee of Lessee, any subtenant of
Lessee, any successor in interest of Lessee or any guarantor of
Lessee's obligations hereunder, and any of them, was materially
false.
16.2 Remedies. In the event of any such material default or breach by
--------
Lessee, Lessor may at any time thereafter, with or without notice or
demand and without limiting Lessor in the
25
exercise of any right or remedy which Lessor may have by reason of
such default or breach:
(a) Terminate Lessee's right to possession of the Premises by any
lawful means, and Lessee shall immediately surrender possession
of the Premises to Lessor. In such event Lessor shall be
entitled to recover from Lessee all damages incurred by Lessor by
reason of Lessee's default including, but not limited to, the
cost of recovering possession of the Premises, reasonable
attorney's fees, and any real estate commission actually paid and
the unpaid rent for the balance of the term after the time of
such award exceeds the amount of such rental loss for the same
period that Lessee proves could be reasonably avoided.
(b) Maintain Lessee's, right to possession in which case this Lease
shall continue in effect whether or not Lessee shall have vacated
or abandoned the Premises. In such event Lessor shall be
entitled to enforce all of Lessor's rights and remedies under
this Lease, including the right to recover the rent as it becomes
due hereunder.
(c) Pursue any other remedy now or hereafter available to Lessor
under the laws of judicial decisions of the state wherein the
Premises are located unpaid installments or rent and other unpaid
monetary obligations of Lessee under the terms of this Lease
shall bear interest from the date due at the rate of 12% per
annum.
16.3 Lessee's Belongings. Should Lessee be disposed of the Premises by
-------------------
operation of law or otherwise, any personal property belonging to
Lessee left on the Premises shall, at the Lessor's sole option, be
deemed to be abandoned to the Lessor, or Lessor may store such
property in Lessee's name and at Lessee's expense without notice to
Lessee or Lessor may dispose of the property and Lessee shall be
responsible for reimbursing Lessor for any costs incurred for such
disposal.
16.4 Default by Lessor. Lessor shall not be in default unless Lessor
-----------------
fails to perform obligations required or Lessor within a reasonable
time, but in no event later than thirty (30) days after written notice
by Lessee to Lessor and the holder of any first mortgage or deed of
trust covering the Premises whose name and address shall have
theretofore been furnished to Lessee in writing, specifying wherein
Lessor failed to perform such obligation; provided, however, that if
the nature of Lessor's obligation is such that more that
26
thirty (30) days are required for performance then Lessor shall not be
in default if Lessor commences performance within such thirty (30) day
period and thereafter diligently prosecutes the same to completion.
16.5 Late Charges. Lessee hereby acknowledges that late payment by
------------
Lessees to Lessor for rent and other sums due hereunder will cause
Lessor to incur costs not contemplated by the Lease, the exact amount
of which will be extremely difficult to ascertain. Such costs
include, but are not limited to, processing and accounting charges,
and late charges which may be imposed on Lessor by the terms of any
mortgage or trust deed covering the Premises. Accordingly, if any
installation of rent or any other sum due from Lessee shall not be
received by Lessor or Lessor's designee within ten (10) days after
such amount shall be due, then, without any requirement for notice to
Lessee, Lessee shall pay to Lessor a late charge equal to ten percent
(10%) of such overdue amount. The parties hereby agree that such late
charge represents a fair and reasonable estimate of the costs Lessor
will incur by reason for late payment by Lessee. Acceptance of such
late charge by Lessor shall in no event constitute a waiver of
Lessee's default with respect to such overdue amount, nor prevent
Lessor from exercising any of the rights and remedies granted
hereunder. In the event that a late charge is payable hereunder,
whether or not collected, for three (3) consecutive installments of
rent, then rent shall automatically become due and payable quarterly
in advance, rather than monthly, notwithstanding Paragraph 5 or any
other provision of this Lease to the contrary.
16.6 Impounds. In the event that a late charge is payable hereunder,
--------
whether or not collected, for three (3) installments of rent of any
other monetary obligations of Lessee under the terms of this Lease,
Lessee shall pay to Lessor, if Lessor shall so request, in addition to
any other payments required under this Lease, a monthly advance
installment, payable at the same time as the monthly rent, as
estimated by Lessor, for real property taxes and insurance expenses on
the Premises which are payable by Lessee under the terms of this
Lease. A fund shall be established to insure payment when due, before
delinquency, of any or all such real property taxes and insurance
premiums. Any estimated payments shall be subject to adjustment as
soon as the actual Taxes and other estimated amounts for that calendar
year can be determined by Lessor, and Lessor shall provide Lessee with
a reasonably detailed statement of any such adjustment. If the amount
of Taxes and other estimated amounts exceeds the sum previously paid
by Lessee pursuant this Paragraph 16.6, as earlier estimated, then
within 30 days after receiving Lessors
27
Statement, Lessee shall pay the deficiency to Lessor. If Lessor's
statement indicates that Lessor has received more than the amount of
Taxes and other estimated payments actually owed by Lessee, Lessor
shall apply the excess first to reduce the amount payable by Lessee
for Taxes and Common Area Charges. Lessor shall return the balance, if
any, to Lessee, or at Lessor's option, Lessor may apply such excess to
any unsatisfied obligation of Lessee. All monies paid to Lessor under
this Paragraph 16.6, may be intermingled with other monies of Lessor
and shall not bear interest.
16.7 Termination due to Default by Lessee.
------------------------------------
(a) No such termination of this Lease shall relieve the Lessee's
liability and obligations under this Lease, and such liability
and obligations shall survive any such termination. In the event
of any such termination, the Lessee shall pay to the Lessor the
rent required to be paid by the Lessee up to the time of such
termination, and thereafter the Lessee, until the end of what
would have been the term of this Lease in the absence of such
termination, shall be liable to the Lessor for, and shall pay to
the Lessor as and for liquidated and agreed damages for the
Lessee's default, the following (i) the equivalent of the amount
of the rent which would be payable under this Lease by the Lessee
if the Lease were still in effect, less (ii) the net proceeds of
any reletting effected pursuant to the provisions of Paragraph
16.1, after deducting all of the Lessor's expenses, all
reasonable repossession costs, brokerage commissions, legal
expenses, attorneys' fees, cost and expenses of preparation for
such reletting.
(b) Upon the termination of this Lease, pursuant to any of the above
paragraphs, the Lessee shall peacefully surrender the Premises to
the Lessor, and the Lessor upon or at any time after such
termination, may without further notice reenter the Premises and
repossess it by force, summary proceedings, ejectment or
otherwise, and may dispossess the Lessee and remove the Lessee
and all other persons and property from the Premises, and may
have, hold an enjoy the Premises and the right to receive all
rental incomes therefrom.
(c) At any time after such termination, the Lessor may relet the
Premises or any part thereof, in the name of the Lessor or
otherwise for such term (which may be greater or less than the
period which would otherwise have constituted the balance of the
term of this Lease) and on such conditions as the Lessor, in the
Lessor's
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absolute discretion, may determine and may collect and receive
the rents therefor. The Lessor shall in no way be responsible or
liable for any failure to collect any rent due upon such
reletting, but Lessor shall be required to use his good faith
effort to collect such rent.
17. SURRENDER OF PREMISES; TREATMENT OF LESSEE'S ALTERATIONS AT EXPIRATION OF
LEASE.
17.1 All alterations, additions, improvements, partitions, flooring,
carpeting or fixtures and plumbing fixtures which may be made or
installed by either of the parties upon the Premises and which in any
way or manner are attached to the floors, walls windows, or ceilings
(excepting coolers, compressors, cash registers, computers or other
mechanical equipment installed by Lessee) shall be the property of the
Lessor upon the expiration or other termination of this Lease, unless
Lessor shall elect otherwise. In the event the Lessor shall so elect,
such alterations, installations, additions or improvements made by
Lessee upon the Premises, as the Lessor shall so elect, shall be
removed by the Lessee and Lessee shall restore the Premises to its
original condition at the commencement hereof, normal wear and tear
excepted, at its own cost and expense prior to the expiration or
termination of the term hereof; or if the Lessee fails to do so
Lessor, in addition to all of its other rights and remedies hereunder,
may do so at the Lessee's expense. Also, at the expiration or other
termination of the Lease term, Lessee shall remove all of his moveable
trade fixtures which shall not be property of the Lessor under the
foregoing provisions of this Section 17. The Lessee's obligations to
perform the covenants contained in this Paragraph of this Lease shall
survive the expiration or other termination of this Lease.
18. LESSOR'S LIEN.
18.1 The parties expressly understand and agree that in order to secure
payment of any such sums becoming due at any time to Lessor hereunder
and to secure the proper performance of this Lease by Lessee, Lessor
hereby has a security interest in and first lien upon all of the
tenant improvements and fixtures owned by the Lessee (or to the extent
Lessee has any other interest herein) which Lessee shall hereafter
place or permit to be placed in, upon or about the Premises. Lessee
hereby agrees to give Lessor a security interest in the subject tenant
improvements and fixtures and agrees to execute, upon receipt of
written request therefor from the
29
Lessor, at any time during the term hereof, a Financing Statement
evidencing said security interest to be filed and recorded in the
manner provided by law. In the event of default by Lessee under this
Lease, the Lessor shall have a right to all of the subject tenant
improvements, personal property and fixtures as if Lessor were a
creditor under the Colorado Uniform Commercial Code. In addition, in
the event of a default by Lessee under this Lease, the Lessee
authorizes the Lessor to enter upon the Premises and to sell (and to
remove, if necessary) the tenant improvements and fixtures which are
the subject of this lien. Such action by Lessor shall not be deemed a
breach of the Lease. Lessee agrees to pay the reasonable attorney's
fees incurred by the Lessor in the event the Lessor must foreclose
upon the security interest and first lien granted by Lessee herein.
Notwithstanding the preceding, Lessor agrees to subordinate its
security interest and lien granted hereunder to any purchase money
mortgages or liens, other Lessor security interests and/or line of
credit security interests covering any fixtures or inventory of Lessee
in the Premises.
19. EMINENT DOMAIN; CONDEMNATION.
19.1 If the Premises or any portion thereof are taken under the power of
eminent domain, or sold under the threat of the exercise of said power
(all of which are therein are called "condemnation"), this Lease shall
terminate as to the part so taken as of the date the condemning
authority takes title or possession, whichever first occurs. If more
than ten percent (10%) of the floor area of the building or the
Premises, or more than twenty-five percent (25%) of the land area of
the Project which is not occupied by any building, is taken by
condemnation, Lessee may at Lessee's option, to be exercised in
writing only within thirty (30) days after Lessor shall have given
Lessee written notice of such taking (or in the absence of such
notice, within thirty (30) days after the condemning authority shall
have taken possession) terminate this Lease as of the date the
condemning authority takes such possession. If Lessee does not
terminate the Lease in accordance with the foregoing, this Lease shall
remain in full force and effect as to the portion of the Premises
remaining, except that the rent shall be reduced in the proportion
that the floor area of the Building or Premises taken bears to the
total floor area of the Building or Premises, as the case may be. No
reduction of rent shall occur if the only area taken is that which
does not have a building located thereon, provided however, that the
taking of such area does not interfere with Lessee's conduct of
business on the Premises. Any reward for the taking of all or any
part of the Premises or Project under the power of eminent domain or
any payment made under threat
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of the exercise of such power shall be the property of Lessor, whether
such award shall be made as compensation for diminution in value of
the leasehold or for the taking of the fee, or as severance damages;
provided, however, that Lessee shall be entitled to any award for loss
of business, damage to Lessee's trade fixtures, Lessee's removable
personal property, depreciation to, and cost of removal of stock and
fixtures. In the event that this Lease is not terminated by reason of
such condemnation, Lessor shall to the extent of severance damages
received by Lessor in connection with such condemnation, repair any
damage to the Premises caused by such condemnation except to the
extent that Lessee has been reimbursed therefore by the condemning
authority. Lessee shall pay any amount in excess of such severance
damages required to complete such repair.
19.2 Lessor and Lessee agree to execute and deliver to the other all
instruments that may be required to effectuate the provision of this
Section 19.
20. ESTOPPEL CERTIFICATE.
20.1 Lessee shall at any time upon not less than ten (10) days' written
notice from Lessor execute, acknowledge and deliver to Lessor a
statement in writing (i) setting forth the commencement of the Lease
term, and the rent provided under the Lease, it being intended that
such statement pursuant to this Paragraph 20, may be relied upon by
any purchaser, mortgagee, or assignee of any mortgagee of the Premises
or Building (ii) certifying that this Lease is unmodified and in full
force and effect (or, if modified, stating the nature of such
modification and certifying that this Lease, as so modified, is in
full force and effect) and the date to which the rent and other
charges are paid in advance, if any, and (iii) acknowledging that
there are not, to Lessee's knowledge, any non cured defaults on the
part of Lessor thereunder, or specifying such defaults if any are
claimed. Any such statement may be conclusively relied upon by any
prospective purchaser or encumbrancer of the Premises.
20.2 At Lessor's option, Lessee's failure to deliver such statement within
such time shall be a material breach of this Lease or shall be
conclusive upon Lessee (i) that this Lease is in full force and
effect, without modification except as may be represented by Lessor,
(ii) that there are no non cured defaults in Lessor's performance and
(iii) that not more than one (1) month's rent has been paid in
advance.
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20.3 If Lessor desires to finance, refinance or sell the Premises, the
Project, or any part thereof, Lessee hereby agrees to deliver to any
lender or purchaser designated by Lessor, within ten (10) days written
notice from Lessor, such financial statements of Lessee as may be
reasonably required by such lender or purchaser. Such statements
shall include the past three years financial statements of Lessee.
All such financial statements shall be received by Lessor and such
lender or purchaser in confidence and shall be used only for the
purposes herein set forth.
21. SUBORDINATION.
21.1 This Lease, at Lessor's option, shall be subordinate to any ground
Lease, mortgage, deed of trust, or any other hypothecation or security
now or hereafter placed upon the real property of which the Premises
are a part and to any and all advances made on the security thereof
and to all renewals, modifications, consolidations replacements and
extensions thereof. Notwithstanding such subordination, Lessee's
right to quiet possession of the Premises shall not be disturbed if
Lessee is not in default and so long as Lessee shall pay the rent and
observe and perform all of the provisions of this Lease, unless this
Lease is otherwise terminated pursuant to its terms. If any
mortgagee, trustee or ground lessor shall elect to subordinate this
Lease to the lien of its mortgage, deed of trust or ground lease, and
shall give written notice thereof to Lessee, this Lease shall be
deemed prior to such mortgage, deed of trust, or ground lease, whether
this Lease is dated prior or subsequent to the date of said mortgage,
deed of trust or ground lease or the date of recording thereof.
21.2 Lessee agrees to execute any documents required to effectuate any
attornment, a subordination or make this Lease prior to the lien of
any mortgage, deed of trust or ground lease, as the case may be.
Lessee's failure to execute such documents written ten (10) days
written demand shall constitute a material default by Lessee
hereunder, or at Lessor's option Lessor shall execute such documents
on behalf of Lessee as Lessee's attorney in fact. Lessee does hereby
make, constitute and irrevocably appoint Lessor as Lessee's attorney-
in-fact and Lessee's name place and stead to execute such documents in
accordance with this Paragraph 21.
21.3 Lessee's refusal to execute any documents required to effectuate any
attornment shall entitle the Lessor to at once terminate the Lease.
Lessee agrees not to record or
32
file this Lease or any memorandum thereof in the real estate records
affecting the Building in which the Premises are located. Any such
recording in violation hereof shall be considered a slander of
Lessor's title and breach of this entire Lease. This covenant shall
survive the preceding. With respect to each Mortgage that encumbers
the Project on the date of this Lease, Lessor agrees that Lessor will
obtain from each Mortgagee a "non-disturbance agreement", in the form
of Exhibit "G", attached hereto and incorporated herein by reference.
With respect to any other Mortgagee that may encumber the Property
after the date of this Lease, the subordination by Lessee of Lessee's
rights under this Lease shall be conditioned upon Lessor's obtaining a
"non-disturbance agreement" substantially in the form of Exhibit "G".
22. SIGNS, DISPLAYS AND OTHER ADVERTISING MEDIA.
22.1 Lessee's signs. Lessee shall be entitled to exterior signs as set
--------------
forth on Exhibit "B" attached hereto.
22.2 Sign approvals. Lessee shall not erect or install any other exterior
--------------
or interior window or door signs, advertising media, window or door
lettering, or placards (herein referred to as Signs) without Lessor's
written consent. Lessee agrees to install at least one exterior Sign
which shall be in strict conformance with Lessor's Sign criteria as to
design, material, colors, location, size and style of lettering. The
cost shall be the Lessee's sole expense. Lessee shall not install any
exterior lighting, decoration, painting, awning or make any changes to
the exterior of the Premises without Lessor's written consent,
provided however, that Lessee shall have the right to install a
reasonable number of exterior lights sufficient to provide security
for Lessee and his employees. Under no circumstances shall Lessee
place any Sign on any roof of the Premises or Project. There shall be
no newspaper sales dispensers or other vending machines on the
exterior of the Premises, unless approved in writing by Lessor. In
the event Lessor has approved said newspaper sale dispensers, such
approval may be revoked at any time by Lessor without prior notice to
Lessee. All Signs must comply with the rules and regulations of the
jurisdiction in which the Premises resides, the county of Eagle or the
P.U.D. regulations.
22.3 Lessor's Signs. Lessor may at any time place on or about the
--------------
Premises, Building or Project any ordinary "For Sale" signs and Lessor
may at any time during the last one hundred twenty (120) days of the
term hereof place on or about the Premises, Building or Project and
"For Lease" sign or place
33
in any normal real estate publication any ordinary "For Lease"
advertising as the case may be, all without rebate of rent or
liability to Lessee.
23. QUIET POSSESSION.
23.1 Upon Lessee paying rent For the Premises, and observing and
performing all of the covenants and provisions on Lessee's part To be
observed and performed, and as long as Lessee is not in default
hereunder, Lessee shall have quiet possession of the Premises for the
entire term, any renewal or extension hereof subject to the provisions
of this Lease. The individuals executing this Lease on behalf of the
Lessor represent and warrant to Lessee that they are dully authorized
and legally capable of executing the Lease on behalf of Lessor, and
that such execution is binding upon all parties holding an ownership
interest in the Project. Lessor warrants and agrees to defend the
title to the Premises and the Project.
24. COVENANTS AND CONDITIONS.
24.1 Each provision of this Lease performable by Lessee shall be deemed
both a covenant and a condition. In the event the Project is affected
by separate Covenants, Conditions and Restrictions ("CC&R"s) this
Lease shall be subject to said CC&Rs.
24.2 Each term and each provision of this Lease shall be construed as, and
shall have the same force and effect as though made in the form of a
covenant.
25. WAIVER.
25.1 One or more waivers of any covenant or condition by Lessor shall not
be construed as a waiver of a subsequent breach of the same or any other
covenant or condition, and the consent or approval by Lessor to or of any
act by Lessee requiring Lessor's consent, or approval shall not be deemed
to waive or render unnecessary Lessor's consent or approval to or of any
subsequent similar act by Lessee. The subsequent acceptance of rent
hereunder by Lessor shall not constitute a waiver of any preceding breach
by Lessee or any term, covenant or condition of this Lease other than the
failure of Lessee to pay the particular rental so accepted, regardless of
Lessor's
34
knowledge of such preceding breach at the time of acceptance of such rent.
No waiver of any provision of this Lease shall be effective unless it is in
writing and signed by the Lessor.
26. ATTORNEY'S FEES
26.1 Attorney's Fees. If either Party brings an action to enforce the
---------------
terms hereof or declare rights hereunder, including any indemnities
herein contained, the prevailing party in any such action, on trial or
appeal, shall be entitled in such litigation, action or proceeding to
recover as part of any judgment, award or other relief, its reasonable
attorney's fees and costs incurred, to be paid by the losing party as
fixed by the court.
27. LESSOR'S ACCESS.
27.1 Lessor and Lessor's agents shall have the right to enter the Premises
after giving reasonable notice to the Lessee (and in emergencies, at
all times) for the purpose of inspecting the same, showing the same to
prospective purchasers, lenders, or lessees, and making such
alteration, repairs, improvements or additions to the Premises or to
the Building or Project in which the Premises are located, as the
Lessor may deem necessary or desirable. Lessor shall disturb the
conduct of Lessee's business in the Premises the minimum amount
necessary to accomplish the Lessor's purpose for entering the Premises
27.2 "For Lease" signs. In accordance with this Paragraph 27, and
-----------------
Paragraph 22.3, Lessee agrees that Lessor has the right, after
reasonable notice to the Lessee, to enter upon the Premises, for a
period commencing one hundred twenty (120) days prior to the end of
the Lease term, for the purpose of exhibiting the Premises for lease,
to prospective tenants, and to post any usual "For Lease" signs upon
the Premises.
28. NOTICES.
28.1 Any notice required or permitted to be given hereunder shall either
be (i) hand delivered, (ii) given by certified mail directed to the
address of Lessor or Lessee set forth herein (iii) given by overnight
courier directed to the address of Lessor or Lessee set forth herein
(iv) by facsimile transmission to the number set forth herein. All
notices so given shall be considered effective, (i) if hand delivered
when received, (ii) if by certified mail, three days after
35
deposit, certified mail postage prepaid, with the United States Postal
Service, (iii) if by overnight courier, one day after deposit with
overnight courier company or, (iv) if by facsimile transmission, upon
receipt of a machine generated confirmation of a complete transaction
of all pages. Either Party may change the address or facsimile number
to which future notices shall be sent by notice given in accordance
with this section.
29. AUCTIONS.
29.1 Lessee shall not conduct nor permit to be conducted, either
voluntarily or involuntarily, any auction upon the Premises, Building
or the common areas without first having obtained Lessor's prior
written consent. Notwithstanding anything to the contrary in this
Lease, Lessor shall not be obligated to exercise any standard of
reasonableness in determining whether to grant such consent.
30. OPTIONS.
30.1 Definition. As used in this Paragraph 30.1 the word "Option" shall
----------
mean the right or option to extend the base term of this Lease or to
renew this Lease as set forth in Paragraph 1.6 in the Lease Summary of
Business Terms and in Exhibit "C" attached hereto.
30.2 Options Personal. Each Option granted to Lessee in this Lease are
----------------
personal to Lessee and may not be exercised or be assigned,
voluntarily or involuntarily, by or to any person or entity other than
Lessee, provided, however, the Option may be excised by or assigned to
any Lessee Affiliate defined in Paragraph 16.1 of this Lease or so
granted, in writing, by Lessor. The Options herein granted to Lessee
are not assignable separate and apart from this Lease.
30.3 Multiple Options. In the event that Lessee has any multiple options
----------------
to extend or renew this Lease a later option cannot be exercised
unless the prior option to extend or renew this Lease has been so
exercised.
30.4 Effect of Default on Options.
----------------------------
(a) Lessee shall have no right to exercise an Option notwithstanding
any provisions in the grant of Option to the contrary (i) during
the time commencing from the date Lessor gives to Lessee a notice
of default pursuant to Paragraph 16 and continuing until the
36
default alleged in said notice of default is cured, or (ii)
during the period of time commencing on the date after a monetary
obligation to Lessor is due from Lessee and unpaid (without any
necessity for notice thereof to Lessee) continuing until the
obligation is paid, or (iii) at any time after an event of
default described in Paragraph 16, without any necessity of
Lessor to give notice of such default to Lessee.
(c) All rights of Lessee under the provisions of an Option shall
terminate and be of no further force or effect, notwithstanding
Lessee's due and timely exercise of the Option, if, after such
exercise and during the term of this Lease, (i) Lessee fails to
pay to Lessor a monetary obligation of Lessee for a period of
thirty (30) days after such obligation becomes due (without any
necessity of Lessor to give notice thereof to Lessee), or (ii)
Lessee fails to commence to cure a default specified in Paragraph
16.1(c) within thirty (30) days after the date that Lessor gives
notice to Lessee of such default and/or Lessee fails thereafter
to diligently prosecute said cure to completion or (iii) Lessee
commits a default described in Paragraph 16.1(a), 16.1(d) or
16.1(e) (without any necessity of Lessor to give notice of such
default to Lessee).
30.5 Extension Notification. Providing this Lease is in good standing,
----------------------
Lessee is not in default and has complied with Section 30 of this
Lease, Lessee may exercise its option to extend the Lease Term, by
giving Lessor written notice of Lessee's intent to extend the Lease,
herein referred to as Extension Notification. The Extension
Notification date shall be at least ninety (90) days prior to the end
of the then current Lease term or option period and in the event
Lessee extends the Lease, all of the terms and conditions shall remain
the same, except that the extended Lease term and rent shall be as
stated Paragraph 1.6, the Lease Summary of Business Terms and Exhibit
"F' attached hereto.
31. MULTIPLE TENANT BUILDING.
31.1 In the event that the Premises are part of a larger building or group
of buildings then Lessee agrees that it will abide by, keep and
observe all reasonable rules and regulations which Lessor may make
from time to time for the management, safety, care and cleanliness of
the Building and grounds, the parking of vehicles and the preservation
of good order therein as well as for the convenience of other
occupants
37
and tenants of the buildings of the Project. The violations of any
such rules and regulations shall be deemed a material breach of this
Lease by Lessee.
32. SECURITY MEASURES.
32.1 Lessee hereby acknowledges that the rental payable to Lessor
hereunder does not include the cost of guard service or other security
measures, and that Lessor shall have no obligation whatsoever to
provide the same. Lessee assumes all responsibility for the
protection of Lessee, its agents and invitees from acts of third
parties. In the event the Lessor, in its sole discretion, determines
that a guard service is necessary, Lessee shall pay as Additional
Rent, its prorata share of said expense.
33. EASEMENTS.
33.1 Lessor reserves to itself the right, from time to time, to grant such
easements, rights and dedications that Lessor deems necessary or
desirable, and to cause the recordation of Parcel Maps and
restrictions, so long as such easements, rights, dedications, Maps and
restrictions do not unreasonably interfere with the use of the
Premises by Lessee. Lessee shall sign any of the aforementioned
documents within ten (10) days of Lessor's written request and failure
to do so shall constitute a material breach of this Lease.
34. PERSONAL GUARANTY.
34.1 As stated in Paragraph 1.2(c), the Summary of Lease Business Terms,
the shareholders of the Lessee, if Lessee is a corporation, or the
members of the Lessee, if Lessee is a LLC, shall execute the Guaranty
attached hereto, marked as Exhibit "D".
34.2 In the event there is a guarantor of this Lease, said guarantor shall
have the same obligation as Lessee under this Lease.
35. HOLDING OVER.
35.1 If Lessee, with Lessor's consent, remains in possession of the
Premises or any part thereof after the expiration of the
38
term hereof, such occupancy shall be a tenancy from month to month
upon all the provisions of this Lease pertaining to the obligations of
Lessee, except that the monthly rental shall be at a rate of one and
one-half (1 1/2) times the last monthly rental paid by Lessee. All
options and rights of first refusal, if any, granted under the terms
of this Lease shall be deemed terminated and be of no further effect
during said month to month tenancy.
36. CUMULATIVE REMEDIES.
36.1 No remedy or election hereunder shall be deemed exclusive but shall,
wherever possible be cumulative with all other remedies at law or in
equity.
37. LESSOR'S LIABILITY.
37.1 The term "Lessor" as used herein shall mean only the owner or owners
at the time in question of the fee title or a Lessee's interest in a
ground Lease of the Project, and in the event of any transfer of such
title or interest, Lessor herein named (and in the case of any
subsequent transfers then the grantor) shall be relieved from and
after the date of such transfer of all liability as respect to
Lessor's obligations thereafter to be performed, provided that any
funds in the hands of Lessor or the grantor at the time of such
transfer, in which Lessee has an interest, shall be delivered to the
grantee. The obligations contained in this Lease to be performed by
Lessor shall, subject as aforesaid, be binding on Lessor's successors
and assigns, only during their respective periods of ownership.
38. BINDING EFFECT; CHOICE OF LAW.
38.1 Subject to any provision hereof restricting assignment or subletting
by Lessee and subject to the provisions of Section 37, this Lease
shall bind the parties, their heirs, personal representatives,
successors and assigns. This Lease shall be governed by the laws of
the State of Colorado, and any litigation concerning this Lease
between the parties hereto shall be initiated in the county in which
the Project is located.
39. SEVERABILITY.
39
39.1 The invalidity of any provision of this Lease, as determined by a
court of competent jurisdiction, shall in no way affect the validity
of any other provision hereof.
40. INTEREST IN PAST - DUE OBLIGATIONS.
40.1 Except as expressly herein provided, any amount due to Lessor not
paid when due shall bear interest at the rate of twelve percent (12%).
Payment of such interest shall not excuse or cure any default by
Lessee under this Lease provided, however, that interest shall not be
payable on late charges incurred by Lessee nor on any amounts upon
which late charges are paid by Lessee.
41. INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS.
41.1 This Lease, the Lease Summary of Business Terms, and Exhibits
attached hereto, contain all agreements of the parties with respect to
any matter mentioned herein. No prior agreement or understanding
pertaining to any such matter shall be effective. This Lease may be
modified in writing only, signed by the parties in interest at the
time of modification. Except as otherwise stated in this Lease,
Lessee hereby acknowledges that neither the real estate broker nor any
cooperating broker on this transaction nor the Lessor or any employee
or agents of any of said persons has made any oral or written
warranties or representations to Lessee relative to the condition or
use by Lessee of the Premises or the Project and Lessee acknowledges
that Lessee assumes all responsibility regarding the Occupational
Safety Health Act, the legal use and adaptability of the Premises and
the compliance thereof with all applicable laws and regulations in
effect during the term of this Lease except as otherwise specifically
stated in this Lease.
42. PERFORMANCE UNDER PROTEST.
44.1 If at any time a dispute shall arise as to any amount or sum of money
to be paid by one party to the other under the provisions hereof, the
party against whom the obligation to pay the money is asserted shall
have the right to make payment "under protest" and such payment shall
not be regarded as a voluntary payment, and there shall survive the
right on the part of said party to institute suit for recovery of such
sum. If it shall be adjudged that there was no legal obligation on
the part of said party to pay such sums or any part thereof, said
party shall be entitled to recover such sum or so much thereof as it
was not legally required to pay under the provisions in this Lease.
40
43. AUTHORITY.
45.1 If Lessee is a corporation, trust, or general or limited partnership
each individual executing this Lease on behalf of such entity
represents and warrants that he or she is duly authorized to execute
and deliver this Lease on behalf of said entity. If Lessee is a
corporation, trust or partnership, Lessee shall, within thirty (30)
days after execution of this Lease, deliver to Lessor evidence of such
authority satisfactory to Lessor.
44. CONFLICT.
44.1 Any conflict between the printed provision of this Lease and the
typewritten or handwritten provisions shall be controlled by the
typewritten or handwritten provisions.
45. REAL ESTATE BROKER'S FEE.
45.1 Except as provided in Paragraph 1.10, the Lease Summary of Business
Terms and Exhibit "E", attached hereto, each party warrants and
represents to the other that no commission, finders fee or the like is
owed as a result of this Lease. If a claim is made for a commission,
finder's fee or the like, the party allegedly creating the obligation
shall indemnify and hold harmless the other party to this Lease. This
indemnification shall be given the broadest possible interpretation in
favor of the party being indemnified and shall include, but not be
limited to, attorney's fees, court costs, settlements, compromises,
judgments, awards or the like.
46. ENVIRONMENTAL CONDITIONS AND INDEMNITIES.
46.1 Lessee shall use due care in storing, treating, processing and
otherwise handling any hazardous or toxic substances, material or
waste on the Premises and shall conduct its operations in, on and
about the Premises to prevent any leakage, spillage, contamination of
the soil, water or air or pollution by Lessee, its agents,
contractors, employees or invitees from occurring in or on the
Premises. Lessee shall promptly notify Lessor of any governmental
proceeding, clean up requirement or other enforcement action involving
the Premises. Lessor shall have reasonable access to the Premises in
the event of any such governmental action in
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order to inspect the site and monitor any and all steps taken by
Lessee or any other person to stop and/or clean up the contamination.
Should any leakage, spillage, contamination of the soil, water or air,
or pollution of any type occur in or on the Premises, or arise out of,
result from or in any way be connected or associated with Lessee's
operation or any other activities conducted by Lessee, its agents,
contractors, employees or invitees, or any trespassers on the
Premises, Lessee at its sole cost and expense, shall immediately clean
the Premises of any and all such contamination, of whatever nature,
caused or exacerbated by Lessee, its agents, contractors, employees or
invitees, or any trespassers on the Premises, or otherwise occurring
during the term of the Lease in accordance with all existing law.
Should Lessee fail in any way to satisfy any of these obligations,
Lessor may (but shall not be obligated to), without waiving such
breach of said obligations, enter upon the Premises and perform
Lessee's obligations under this Lease and Sublease/Assignment for the
account and at the sole cost and expense of Lessee. Lessee shall
promptly pay Lessor for all costs of such performance upon receipt of
a xxxx therefor. Lessee shall be solely responsible for and shall
promptly and fully reimburse, indemnify and hold harmless Lessor and
any successors to Lessor's interest in the chain of title to the
Premises, for any fines, penalties, costs, claims, demands, causes of
action, damages, including all foreseeable or unforeseeable
consequential damages, lawsuits, charges, assessments, impositions,
expenses (including reasonable attorney's fees and costs) and
liabilities arising out of, resulting from or in any way connected or
associated with any loss, injury, or damage to Lessor or any property
of Lessor or any other person, or for any injury to or death of any
person whatsoever occurring which has arisen out of, resulted from or
in any way was connected or associated with any leakage, spillage,
contamination of soil, water or air or pollution of any type occurring
in or on the Premises during the term of the Lease or Option
Period(s), and including, without limitation, the cost of any required
or necessary repair, clean up, or detoxification.
47. TIME OF THE ESSENCE.
47.1 Time is of the essence under this Lease.
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND
PROVISION CONTAINED HEREIN AND, BY EXECUTION OF THIS LEASE, SHOW THEIR INFORMED
AND VOLUNTARY CONSENT THERETO, THE PARTIES HEREBY AGREE THAT, AT THE TIME THIS
LEASE IS EXECUTED, THE TERMS OF THIS
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LEASE ARE COMMERCIALLY REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF
LESSOR AND LESSEE WITH RESPECT TO THE PREMISES.
SHOULD ANY PROVISION of this Lease violate any Federal, State or Local law or
ordinance, that provision shall be deemed amended to so comply with such law or
ordinance, and shall be construed in a manner so as to comply. This lease shall
be binding on the parties, their personal representatives, successors and
assigns.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the day and year first above written.
LESSEE:
Colorado Business Bankshares, Inc.
/s/ Xxxxxxxx X. Xxxxxx 04/12/99
________________________________________ --------
Xxxxxxxx X. Xxxxxx, President Date
LESSOR:
EDWARDS INTERCHANGE II, LLC
By: /s/ Xxxxx Xxxxx 04/14/99
------------------------------------- --------
Xxxxx Xxxxx Date
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EXHIBIT "A"
-----------
PROJECT LEGAL DESCRIPTION
-------------------------
NORTHSTAR CENTER, located in the Sections 4 & 5, Township 5 South, Range 82 West
of the 6th P.M., Eagle County, Colorado, also known as, Northstar Center, 0000
Xxxxxxx Xxxx Xxxx, Xxxxxxx, Xxxxxxxx.
UNIT LEGAL DESCRIPTION
----------------------
Xxxx X-000 & X000, Xxxxxxxxx Xxxxxx, 439 Xxxxxxx Access Road, Xxxxxxx, CO.
44
EXHIBIT "B"
-----------
LESSEE'S SIGNAGE
----------------
Lessee signage shall be in accordance with the Northstar Center Planned Unit
Development Guide, recorded with Eagle County, Eagle, Colorado.
Lessee shall submit to Lessor the signage submittal package(s) prior to
application to Eagle County, and once approved it shall become part of this
Lease Agreement
Lessee shall be permitted to install up to, but not more than, two (2) exterior
signs, in any of the designated spots for B201 and B202.
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EXHIBIT "C"
-----------
OPTION TO RENEW
---------------
Lessee shall have the option to extend the term of this Lease for Two (2) Five
Year Terms. The Option Period shall commence immediately upon the expiration of
the Initial Term of the Lease and be subject to all terms and conditions set
forth in the Lease Agreement.
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EXHIBIT "D"
-----------
CORPORATE RESOLUTION
Lessee shall deliver to Lessor the "Corporate Resolution" authorizing Xxxxxxxx
X. Xxxxxx, President, to enter into, execute, and obligate Colorado Business
Bankshares, Inc., to said Lease Agreement.
/s/ Xxxxxxxx X. Xxxxxx Date: 04/09/99
__________________________ --------
Xxxxxxxx X. Xxxxxx
President
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EXHIBIT "E"
-----------
BROKER AGREEMENT
----------------
Real Estate Brokerage: It is understood that Lessor shall be responsible for
----------------------
paying all real estate brokerage commissions to Xxxxxxxxxxx Xxxxxx Real Estate,
Inc., for it's services in this transaction as set forth in the Lease Listing
Agreement between Lessor and Xxxxxxxxxxx Xxxxxx Real Estate, Inc.
48
