COVER SHEET
FOR
LEASE AGREEMENT
OWNER: SKY HARBOR ASSOCIATES LIMITED PARTNERSHIP
TENANT: ACI SYSTEMS, INC., A Colorado Corporation
TABLE OF CONTENTS
BASIC LEASE PROVISIONS
GENERAL LEASE PROVISIONS:
1. Incorporation of Attachments; Definitions
2. Lease Grant
3. Term
4. Payment of Rent
5. Base Rent and Percentage Rent
6. Additional Rent; Escalation
7. Late Charge and Interest on Overdue Rent
8. Security Deposit
9. Use of Premises; Merchant's Association; Covenant's
10. Use of Common Areas; Parking
11. Rules and Regulations
12. Building Services and Utilities
13. Owner's Construction of Premises
14. Tenant's Alterations
15. Repairs and Maintenance
16. Signs and Advertising
17. Mechanics' Liens
18. Indemnification and Exculpation
19. Tenant's Liability Insurance; Subrogation Rights
20. Subordination
21. Estoppel Certificates
22. Assignment and Subletting by Tenant
23. Holding Over
24. Acceptance of Surrender of Premises
25. Condemnation
26. Fire and Other Casualty
27. Events of Default
28. Owner's Remedies
29. Owner's Lien
30. Certain Rights Reserved by Owner
31. Relocation of Tenant
32. Brokers
33. Quiet Enjoyment
34. Notices
35. Force Majeure
36. Entire Agreement; Amendments; Waivers; Binding Effect
37. Severability
38. Joint and Several Liability of Tenant
39. Owner's Liability Limitation
40. Arbitration
41. Waiver of Trial by Jury
42. Applicable Law
43. Miscellaneous
44. Special Provisions
45. Acts to be Performed by Tenant Prior to Tenant's Construction
46. Personal Property Taxes
47. Transfer of Interest
48. Special Provisions
RIDERS
I Additional Rent; Escalation
II Building Services and Utilities
EXHIBITS
A-1 Description of Land
A-2 Description of Building
A-3 Description of Premises
B Rules and Regulations
BASIC LEASE PROVISIONS
LEASE DATE: October 27, 1993
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TENANT:
Name: ACI Systems, Inc.
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Legal Form: (Individual; Ltd Partnership; Gen Partnership, Corp.; Other):
Corporation
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Legal Situs: (State of Residence, Incorporation or Formation): Colorado
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Address: 7002 So. Revere Parkway, Englewood, Colorado
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Authorized Representative: Xxxxx Xxxxxx
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Telephone:
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OWNER:
Name: Sky Harbor Associates Limited Partnership
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Legal Form: Limited Partnership
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Legal Situs: Michigan
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Address: 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx Xxxxx, XX
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Authorized Representative: Xxxxxx/Xxxxxxxx Properties, Inc.
Telephone: (000) 000-0000
LAND: The tract of land located in Arapahoe County and described in Exhibit A-1.
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BUILDING: The building commonly known as X. Xxxxxx Parkway Englewood, CO
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situated on the Land and described in or depicted on Exhibit A-2.
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PREMISES: Suite No.(s) 40 , being the portion(s) of the Building shown on
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the Floor Plan, EXHIBIT A-3.
STATE: Colorado
TERM: 5 years 2 months (subject to adjustment pursuant to Paragraph 3).
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ENDING DATE OF TERM (pursuant to paragraph 3): January 31, 1999.
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Initials: Owner ______
Tenant ______
ESTIMATED COMMENCEMENT DATE: December 1, 1993
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ACTUAL COMMENCEMENT DATE:(pursuant to paragraph 3): ___________________
Initials: Owner ______
Tenant ______
BASE RENT: $ See Addendum No. 1 per year, payable in monthly installments
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of $ See Addendum No.1 per month
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REIMBURSEMENT INTEREST RATE: twelve (12) % per annum
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OVERDUE INTEREST RATE: twelve (12)% per annum (but never to exceed the
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maximum rate of interest permitted by applicable law to be charged Tenant for
the use, forbearance or detention of money.)
LATE CHARGE: $100.00 .
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SECURITY DEPOSIT: $1,150.00
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FIRST OPERATING COST YEAR: Means the twelve (12) month period commencing on
the first day of January, 1993 .
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INITIAL MONTHLY ESTIMATED ADDITIONAL RENT: $ 2.04 per square foot per year
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= $452.54 per month for the Premises.
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TENANT'S PROJECT PROPORTIONAL SHARE: The percentage which expresses the
ratio between the number of square feet leased and the rentable square feet
within the project (initially approximately 108,021 ) which for the purpose
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of the Lease shall initially be conclusively deemed to be 2.464 %. This
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percentage shall be the initial Tenant's Project Proportionate Share. If and
at such times as the Project is expanded or diminished, Owner shall equitably
adjust Tenant's Project Proportionate Share to reflect the increased or
decreased rentable square feet within the Project using the formula set forth
GENERAL LEASE PROVISIONS
This LEASE AGREEMENT ("Lease") is entered into as of the Lease Date
between Owner and Tenant. In consideration of the mutual covenants herein set
forth, and intending to be legally bound hereby, Owner and Tenant agree as
follows:
1. INCORPORATION OF ATTACHMENTS: DEFINITIONS. This Lease consists of the
the Cover Sheet, Table of Contents, Basic Lease Provisions, General Lease
Provisions, Riders, Addendums and Exhibits all of which are attached and
incorporated by reference for all purposes. The terms defined in the Basic
Lease Provisions, General Lease Provisions, Riders, Addendum and Exhibits
shall be deemed to have the meanings ascribed, wherever used herein. The
Cover Sheet, Table of Contents and headings of paragraphs, Riders, Addendum
and Exhibits are for convenience only and shall not be deemed to enlarge or
diminish the meanings of the provisions of this Lease.
2. LEASE GRANT. Owner leases to Tenant and Tenant leases from Owner the
Premises for the Term and upon the provisions and subject to the conditions
set forth herein.
3. TERM.
(a) The Commencement Date of the Term shall be the earlier of (i) the
date on which Tenant, with Owner's approval, takes possession of the Premises
for the Permitted Use, or (ii) on the thirtieth (30th) day following the date
on which Owner notifies Tenant that the Premises will be available for
occupancy, provided that Owner's work on the the Premises is substantially
completed as specified in paragraph 13 by such date, and if not then
substantially completed, (iii) five (5) days following the date of
substantial completion of such work. Upon notification as provided in (ii)
above, Owner and Tenant shall schedule a pre-occupancy inspection of the
Premises at which time all mechanical systems will be demonstrated to Tenant,
a punchlist of outstanding items, if any, shall be completed by Owner for
conformance to construction plans, and a letter of acceptance of the Premises
shall be executed by Xxxxxx, on Owner's usual form. If the Commencement Date
is other than the first day of a calendar month, the Term shall be deemed
extended by the period from (including) the Commencement Date to the end of
such month.
(b) Notwithstanding said commencement date, if for any reason Owner
cannot deliver possession of the Premises to tenant on said date, Owner shall
not be subject to any liability therefor, nor shall such failure affect the
validity of this Lease or the obligations of Tenant hereunder. However, in
such case Tenant shall not be obligated to pay rent until possession of the
Premises is tendered to Tenant. Upon Owner's request, the parties agree to
execute in writing an Addendum to certify the Commencement Date and
expiration date hereof, but this Lease shall not be affected in any manner if
either party fails or refuses to execute such Addendum.
4. PAYMENT OF RENT. The term "Rent" means Base Rent, Additional Rent and
any charges, fees and other amounts due from tenant to Owner hereunder,
Xxxxxx agrees to pay all Rent to Owner, in lawful currency of the United
States of America, at Owner's Address or at such other location as Owner may
specify by notice to Tenant, without notice or demand (except as may be
expressly provided for herein with regard to a particular portion of Rent)
and without setoff or deduction. Tenant's obligation to pay any and all Rent
owing by Tenant to Owner under this Lease shall survive any expiration or
termination of this Lease.
5. BASE RENT. Base Rent is payable in monthly installments in advance on
the first day of each calendar month during the Term, except that the monthly
installment of Base Rent due for the first full calendar month of the Term
shall be paid on the Lease Date. If the Commencement Date is other than the
first day of a calendar month, Tenant shall pay on the Commencement Date a
pro rata portion of the monthly installment of Base Rent for the month during
which the Commencement Date falls, such pro rate portion being equal to
one-thirtieth of the monthly installment times the number of days from
(including) the commencement Date to the end of such month.
6. ADDITIONAL RENT: ESCALATION. Additional Rent shall be calculated and
is payable as provided in RIDER I.
7. LATE CHARGE AND INTEREST ON OVERDUE RENT. If any installment of Base
Rent or Additional Rent is not received within ten (10) days after the due
date thereof (without in any way implying Owner's consent to such late
payment), Tenant agrees to pay Owner the Late Charge, to the extent permitted
by law, in addition to said installment of Base Rent or Additional Rent, it
being understood that the Late Charge shall constitute liquidated damages and
such liquidated damages shall be solely for the purpose of reimbursing Owner
for the additional costs and expenses which Owner presently expects to incur
in connection with the handling and processing of late payments of Base Rent
and/or Additional Rent. Owner and Tenant agree that in the event of any such
late payment by Xxxxxx, the damages resulting to Owner will be difficult to
ascertain precisely, and that the Late Charges constitutes a reasonable and
good faith estimate by the parties of the extent of such damages. In addition
to the Late Charge, Xxxxxx agrees to pay Owner interest, at the Overdue
Interest Rate, on any installment of Base Rent or Additional Rent not paid
within thirty (30) days after the due date thereof, which interest shall
accrue from the due date to the date of payment. Notwithstanding the
foregoing, the Late Charge shall not apply to any sum which may have been
advanced by Owner to or for the benefit of Tenant pursuant to any provision
of this Lease, it being understood that such sum shall bear interest, which
Xxxxxx agrees to pay Owner, at the Interest Rate specified in such provision.
8. SECURITY DEPOSIT. The Security Deposit shall be delivered by Tenant to
Owner on the Lease Date, and shall be held by Owner, without liability for
interest, as security for the performance by Tenant of Tenant's covenants and
obligations under this Lease, it being expressly understood that the Security
Deposit shall not considered an advance payment of Rent or a measure of
Owner's damages in case of default by Xxxxxx. Upon the occurrence of and
Event of Default, Owner, from time to time and without prejudice to any other
remedy, may use the Security Deposit to the extent necessary to make good any
arrearages of Rent and any other damage, injury, expense or liability caused
to Owner by such Event of Default. Following any such application of the
Security Deposit to its original amount. If Xxxxxx is not then in default
hereunder, any remaining balance of the Security Deposit shall be returned by
Owner to Tenant within a reasonable period of time after the termination of
this Lease, and in any event within the time period prescribed by State law,
if any. If Owner transfers its interest in the Premises during the Term,
Owner may assign the Security Deposit (or so much thereof as has not been
used and not restored by Xxxxxx) to the transferee and thereafter Owner shall
have no further liability to Tenant for the return of the Security Deposit.
9. USE OF PREMISES. Tenant shall use the Premises only for the Permitted
Use. Tenant will not occupy or use the Premises, or permit any portion of the
Premises to be occupied or used, for any business or purpose other than the
Permitted Use or for any use or purpose which is unlawful in part or in whole
or deemed to be disreputable in any manner or extra hazardous on account of
fire or other casualty, nor permit anything to be done which will in any way
increase the rate of insurance on the Building or contents; and in the event
that, by reason of acts of Tenant or Tenant's servants, employees, agents,
contractors, licensees or invitees ("Tenant Parties"), there shall be any
increase in rate of insurance on the Building or contents, then such acts
shall be deemed to be an Event of Default hereunder and Tenant hereby agrees
to pay to Owner the amount of such increase on demand. Tenant will conduct
its business and control Tenant Parties in such a manner as not to create any
nuisance, nor interfere with, annoy or disturb other tenants or Owner in the
ownership or management of the Land or Building. Tenant will maintain the
Premises in a clean, healthful and safe condition and will comply with all
laws, ordinances, orders, rules and regulations (of federal, state, municipal
and other agencies or bodies having any jurisdiction thereof), and any
restrictive covenants and condominium association by-laws, rules and
regulations of which Tenant has been advised, with reference to the use,
condition or occupancy of the Premises.
10. USE OF COMMON AREAS: PARKING.
(a) Tenant shall have the right, nonexclusive and in common with
others, to use (i) any common hallways, entrances, lobbies, elevators,
stairways, common restroom facilities and similar common areas of the
Building for the purposes for which the same were designed and (ii) to use
the exterior paved driveways and walkways of the Land for vehicular and
pedestrian access to the Building. Tenant shall also have the right,
non-exclusive and in common with other tenants of the Building and Owner, to
use the designated free parking areas
8.1 Tenant has paid security deposit of $1,150.00 prior to occupancy
in temporary space. This shall transfer as deposit for the five
year lease under this agreement. The third month's base rent will
be submitted with the signed lease agreement. As stated on page 3
item 12 of Addendum No. 1, the first two month's Base Rent shall
be abated.
/s/ RA
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Owner's Initials Tenant's Initials
above.
of the Land, if any, for the parking of automobiles and other vehicles of
Tenant and its employees and business visitors; incident to Tenant's
Permitted Use of the Premises; provided that Owner shall have the right to
restrict or limit Tenant's utilization of such parking areas in the event the
same become overburdened and in such case to allocate on a proportionate
basis or assign parking spaces among Tenant and the other tenants of the
Building. Owner shall have the right to establish other reasonable
regulations, applicable to all tenants, governing the use of or access to any
interior or exterior common areas, and such regulations; when communicated by
written notification from Owner to Tenant, shall be deemed incorporated by
reference into Exhibit B hereof.
(b) Tenant covenants and agrees that all loading and unloading of
freight, merchandise, supplies, construction materials, trade fixtures and
other goods delivered to or from the Premises shall be done only in the
loading dock area of the Premises or the Building, as applicable. Under no
circumstances shall Tenant allow freight, merchandise, supplies, construction
materials, trade fixtures or other goods delivered to or from the Premises to
be stored on, accumulate on, or obstruct the entrances of the Building or the
loading dock area, roads, trash bay, sidewalks, driveways or parking areas
within the Project. A violation or violations of this sub-paragraph shall
constitute a material breach of this lease.
(c) Tenant shall not perform or permit work to be done on the loading
dock, roads, sidewalks, driveways, parking areas, landscaped areas or any
other exterior areas within the Project. This includes, but is not limited
to, assembly, construction, mechanical work, painting, drying, layout,
cleaning or repair of goods or materials.
11. RULES AND REGULATIONS. Tenant will comply fully with all
requirements of the Rules and regulations set forth in EXHIBIT B. Owner
shall at all times have the right to change the Rules and Regulations or to
promulgate other Rules and Regulations in such manner as Owner may deem
advisable for safety, care, or cleanliness of the Building, Land and
Premises, and for preservation of good order therein, all of which additional
Rules and Regulations, changes and amendments will be forwarded to Tenant in
writing and shall be carried out and observed by Tenant. Tenant shall
further be responsible for compliance with such Rules and Regulations by
Tenant Parties. Nothing in this Lease shall be construed to impose upon
Owner any duty or obligation to enforce the rules and Regulations or terms,
covenants or conditions in any other lease, against any other tenant, and
Owner shall not be liable to Tenant for violation of the same by any other
tenant, its tenant parties, or other visitors.
12. BUILDING SERVICES AND UTILITIES. Building services and utilities
shall be provided by Owner as provided in RIDER II.
13. OWNER'S CONSTRUCTION OF PREMISES.
(a) Before the Commencement Date, Owner will substantially complete the
construction of the Building (if not substantially completed as of the Lease
Date) to the stage that the Building is operable for Tenant's purposes, which
shall be defined as occurring when the public entrances of the Building,
including ground floor lobbies and the public hallways of the floor(s)
containing the Premises (or portions of said lobbies and hallways necessary
to provide reasonable and safe access to the Premises) are substantially
completed and elevators necessary (if any) to provide service to the
Premises, the heating and air conditioning system (as required for the season
and then prevailing climate) and all other mechanical systems required for
service to the Premises are in regular operation.
(b) The Premises shall be deemed to be substantially completed when all
work specified to be done in EXHIBIT C ("Tenant Finish") has been
substantially completed, except for (i) minor items of finishing and
construction of a nature which are not necessary to make the Premises
reasonably tenantable for the Permitted Use, and (ii) items not then
completed because of delay by Tenant in furnishing any drawings, plans or
approvals (collectively, "Plans") required by EXHIBIT C or because of
approved requests made by Tenant subsequent to delivery of Plans, for changes
or additions therein.
(c) If Tenant fails to furnish any Plans by the dates specified in
EXHIBIT C or makes any changes in such Plans after said dates, (i) Owner my
proceed with the building Standard work set forth in EXHIBIT C and layout as
determined solely by Owner, or (ii) Owner may accept late delivery of the
Plans. In either such event, Tenant shall bear any additional construction
or other expense to Owner caused directly or indirectly by any delay in
furnishing
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the Plans or by any such changes and shall pay Owner as a portion of Rent, at
the Commencement Date, an amount equal to the aggregate number of days lapsed
between the delivery dates set forth in EXHIBIT C and the actual delivery
dates, multiplied by 1/365th of the annual Base Rent, plus an amount of
Additional Rent attributable to such period as reasonably estimated by Owner.
Owner and Tenant, understanding the difficulty in determining or estimating
the actual damages that will result form Xxxxxx's tardiness in delivering
Plans, have agreed upon the foregoing as an appropriate method of liquidating
such damages.
(d) Owner shall have the Premises substantially completed by the
Estimated Commencement Date, except for delays due to Force Majeure or
Tenant's failure to timely furnish the Plans, any of which shall extend the
Estimated Commencement Date for a period equal to the total of the duration
of each such delay. If the Premises is not substantially completed within
three (3) months following the Estimated Commencement Date, as the same may
be extended in accordance herewith, Tenant, as Xxxxxx's sole right thereby
arising, may terminate this Lease by notice to Owner given thereafter,
provided that the Term shall not have commenced within thirty (30) days after
the giving of such notice by Xxxxxx. This Lease shall terminate in such case
upon expiration of thirty (30) days after Owner's receipt of such notice
without substantial completion having occurred, whereupon Owner shall return
all rent and the Security Deposit paid by Tenant to Owner in advance, and all
further obligations of the parties hereunder shall end. It is understood that
in the event of such termination by Xxxxxx, Owner shall have no
responsibility to reimburse Tenant for any cost or expense which Tenant may
have directly or indirectly incurred with respect to this Lease or the
projected occupancy of the Premises, whether arranging for, or termination of
arrangements for, other space, or any Alterations to the Premises or
otherwise.
14. TENANT'S ALTERATIONS.
(a) Tenant will not make or allow to be made any alterations, additions
or improvements ("Alterations") in or to the Premises without the prior
written consent of Owner. Alterations to the Premises shall be done by Owner
or by contractors approved in writing by Owner, at Xxxxxx's sole cost and
expense. If Owner approves Xxxxxx's proposed Alterations and agrees to
permit Xxxxxx's contractor to do the work, Xxxxxx's contractor must first
furnish to Owner insurance coverage against such risks and in such amounts as
Owner may require, including but not limited to Xxxxxxx'x Compensation
Insurance (as required under the Xxxxxxx'x Compensation Act of Colorado),
issued by such companies as Owner may approve. All Alterations permitted by
Owner must conform to all rules and regulations established form time to time
by the Underwriter's Association (or comparable organization) of the local
area in which the Land and Building are located, and conform to all
requirements of all governmental entities having jurisdiction. Tenant's
contractor shall also furnish all applicable building and occupancy permits
required by law. Owner shall have the right to have Xxxxxx's contractor's
work inspected by architects and engineers, the cost of which shall be paid
by Xxxxxx to Owner on demand, with interest thereon at the Reimbursement
Interest Rate from the due date until paid. At any time Tenant either
desires to, or is required to make repairs or Alterations in accordance with
this Lease, Owner may, in addition to its other options, require tenant at
Tenant's sole cost and expense, to obtain and provide to Owner a lien and
completion bond (or such other applicable bond as reasonably determined by
Owner) in an amount equal to one and one-half (1.5) times the estimated cost
of such improvements to insure Owner against risk and liability, including
but not limited to liability for mechanics and materialman's lien, and to
insure the completion of the work.
(b) All Alterations (whether temporary or permanent in character and
whether made with or without Owner's consent) made in or upon the Premises,
either by Owner or Tenant, shall be Owner's property upon installation and
shall remain on the Premises without compensation to Tenant unless Owner
shall, by written notice, elect to have the alterations so made be removed
upon expiration of the Term or termination of this Lease. Owner may give
this notice of election to Tenant at anytime during the Term of the Lease,
and for a period of three (3) days after the expiration of the Term or the
termination of this Lease. If Owner shall make such election that
Alterations so made shall be removed, then tenant agrees to cause same to be
removed and to restore the Premises to their former condition at Tenant's
sole cost and expense, and should Tenant fail to remove the same and
restore the Premises, then Owner may cause same to be removed and the
Premises restored at Tenant's expense, and Xxxxxx agrees to reimburse Owner
of demand for the cost of such removal and restoration, together with any
and all damages which Owner may suffer and sustain by reason of the failure
of tenant to remove the same with interest thereon at the Reimbursement
Interest Rate from the due date until paid.
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Upon acceptance of Tenant's alterations to the premises, Tenant will not be
required to remove such alterations from the premises upon expiration of the
lease.
/s/ RA
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Owner's Initials Tenant's Initials
34
(c) At the Ending Date of Term or other termination of this Lease, all
furniture, movable trade fixtures and personal property of Tenant may be
removed by Tenant if Tenant so elects and no Event of Default then exists,
and shall be so removed if required by Owner, or if not so removed shall, at
the option of Owner, become the property of Owner.
(d) All Alterations, installations, removals and restoration shall be
accomplished in a good and workmanlike manner so as not to damage the
Premises or the Building, and in such manner as not to distrub other tenants
in their use and occupancy of the Building.
15. REPAIRS AND MAINTENANCE.
(a) Owner shall be responsible for repair and maintenance of the
foundation, floors (beneath the carpet or other floor covering), roof, the
exterior walls (excluding all glass windows, window frames and doors), and
the electrical service to the wall box (before any Tenant finish), the
plubing to the wall stubs and common areas. Owner shall also be responsible
for the preventative maintenance contract for the roof mounted air
conditioning and heating apparatus. Tenant shall pay for these items as
provided for in Rider I.(1)
(b) Tenant shall use, operate and maintain the Premises and its
systems, including all fixtures and equipment installed by Tenant, in such
manner as to keep the same in good order and condition, making all repairs
and replacements necessary to maintain such good order and condition all at
Tenant's expense, including but not limited to, plumbing from the wall stubs,
electrical service from the wall box, sewer, water and heating pipes from the
exterior wall, and all glass. Tenant shall be responsible for the maintenance
(other than preventative maintenance) and repair and/or replacement of any
heating, ventilating, air conditioning, plumbing, electrical or other systems
and fixtures installed solely to service the Premises, whether installed or
paid for by Owner or Tenant. The performance by Tenant of its obligations to
maintain the Premises shall be conducted only by contractors approved in
writing by Owner, it being understood that Tenant shall procure and maintain
and shall cause contractors engaged by or on behalf of Tenant to procure and
maintain insurance coverage against such risks and in such amounts as Owner
may require, including but not limited to Workmen's Compensation Insurance
(as required under the Workmen's Compensation Act of Colorado), issued by
such companies as Owner may approve, in connection with such maintenance. If
Tenant fails to make any repair within fifteen (15) days after the occurence
of the damage necessitating same, or fails to cause other maintenance to be
performed within fifteen (15) days after notice from Owner of the need
therefor, Owner at its option may make such repair, or cause such other
maintenace to be performed, and tenant, shall on demand therefor, pay Owner
for the cost thereof, with interest thereon at the Reimbursement Interest
Rate from the due date until paid. At the Ending Date of Term or other
termination of this Lease, Tenant shall deliver up the Premises including all
Alterations (except as otherwise herein provided), in good repair and
condition, reasonable wear and tear excepted, and shall deliver to Owner all
keys to the Premises.
(c) Tenant shall give Owner prompt written notice of any damage to or
defects in, the Premises and in the plumbing, electrical, heating, air
conditioning and other systems and apparatus located in the Premises. The
obligation to repair such damages or defects shall be as stated in this
paragraph 15. In no event shall Owner be obligated to repair any damage to
the Premises or the Building caused by any act, omission or negligence of
Tenant or Tenant Parties. Tenant shall reimburse Owner for all costs and
expenses of repairing and replacing all damage to the Premises and Building
and to fixtures and equipment caused by Tenant or Tenant Parties or as the
result of all or any of them moving in or out of Building or by installation
or removal of furniture, fixtures or other property. Such costs and expenses
shall be paid by Tenant to Owner on demand, with interest thereon at the
Reimbursement Interest Rate from the due date until paid.
(d) Owner shall not be liable by reason of any injury to or
interference with Xxxxxx's business arising from the making of any repairs or
alterations in or to the Premises or the Building or to any appurtenances or
equipment therein. There shall be no abatement of Rent because of such
repairs or alterations, or because of any delay by Owner in making the same.
16. SIGNS AND ADVERTISING. No sign, advertisement or notice shall be
inscribed, painted, affixed or otherwise displayed on any part of the outside
or the inside of the Building except on the directories and doors of offices,
and then only in such place, number, size, color and style
(1) Tenant will not be responsible for any damage to glass, doors and
upheaval of concrete directly resulting from expansive soils and shall be
the sole responsibility of the Owner to remedy.
/s/ R A
-------------------- --------------------
Owner's Initials Tenant's Initials
7A
as is approved by Owner and provided by Owner at Tenant's cost and expense;
if any such sign, advertisement or notice is nevertheless exhibited by
Tenant, Owner shall have the right to remove same and Tenant shall be liable
for any and all expenses incurred by Owner in said removal, which shall be
payable by Tenant to Owner on demand, with interest thereon at the
Reimbursement Interest Rate from the due date until paid. Owner shall have
the right to prohibit (by injunction or otherwise) any advertisement of
Tenant which in Owner's opinion tends to impair the reputation of the
Building or its desirability. Upon written notice from Owner, Tenant shall
immediately refrain from and discontinue any such advertisement.
17. MECHANIC'S LIENS.
(a) Tenant will not suffer or permit any mechanic's, laborer's or
materialman's lien to be filed against the Land, Building, or Premises, or
any part thereof, by reason of work, labor services or materials supplied or
claimed to have been supplied to tenant; and if any such lien shall at any
time be filed, Tenant, within ten (10) days after notice of the filing
thereof, shall cause it to be discharged of record by payment, deposit, bond,
order of a court of competent jurisdiction or as otherwise provided by law.
If Tenant shall fail to cause such lien to be discharged within the period
aforesaid, then in addition to any other right or remedy, Owner may, but
shall not be obligated to, discharge it either by paying the amount claimed
to be due or by procuring the discharge of such lien by deposit or by bonding
or other proceedings. Owner may at its option and without waiving any of its
rights set forth in the immediately preceding sentence, permit Tenant to
contest validity of any such lien or claim, provided that in such
circumstances the Tenant shall at its expense defend itself and Owner against
the same and shall pay and satisfy any such adverse judgment that may be
rendered thereon before the enforcement thereof against the Owner, the
Premises or the building, provided further that Owner may at any time require
the Tenant to post a bond with an entity satisfactory to Owner in an amount
one and one-half (1.5) times the amount of the lien or to deposit with the
Court exercising jurisdiction over such claim such amount as either the Court
or statute may determine to be sufficient as a release and discharge of the
lien. If Tenant shall not immediately make such payment upon the request of
Owner, Owner may make said payment in the amount so paid together with
interest thereon from the date of payment and all legal costs and charges,
including attorney fees incurred by Owner in connection with said payment
shall be deemed Additional Rent and shall be payable on the next date on
which a base rental installment is due. Any amount so paid by Owner, plus all
of Owner's costs and expenses associated therewith, shall be paid by Tenant
to Owner on demand, with interest thereon at the Reimbursement Interest Rate
from the due date until paid.
(b) Nothing in this Lease, nor any approval by Owner of any of
Tenant's Alterations or contractors, shall be deemed or construed in any way
as constituting consent by Owner for the making of any alterations or
additions by Xxxxxx within the meaning of any State law, or constituting a
request by Owner, expressed or implied, to any contractor, subcontractor,
laborer or materialman for the performance of any labor or the furnishing of
any materials for the use or benefit of Owner.
18. INDEMNIFICATION AND EXCULPATION.
(a) Xxxxxx indemnifies and agrees to hold harmless Owner against
and from any and all claims arising from Xxxxxx's use of the Premises, or
from the conduct of Tenant's business or from any activity, work or things
done, permitted or suffered by Tenant in or about the Premises, Land,
Building or elsewhere, and Xxxxxx further indemnifies and agrees to hold
harmless Owner against and from any and all claims arising from any breach or
default in the performance of any obligation on Xxxxxx's part to be performed
under the terms of this Lease, or arising from any negligence of Tenant or
Tenant Parties, and from and against all costs, attorney's fees, expenses and
liabilities incurred in the defense of any such claims or any action or
proceeding brought thereon, and if any action or proceeding is brought
against Owner by reason of any such claim, Tenant upon notice from Owner
shall defend the same at Tenant's expense by counsel satisfactory to Owner.
(b) Owner shall not be liable or responsible for any loss or
damage to any property or death or injury to any person occasioned by theft,
fire, act of God or public enemy, criminal conduct of third parties,
injunction, riot, strike, insurrection, war, court order, requisition or
other act of governmental body or authority, acts of other tenants of the
Building, or any other matter beyond the control of Owner, or for any injury
or damage or inconvenience which may arise through repair or alteration of
any part of the Building, or failure to make
repairs, or from any cause whatever except Owner's gross negligence or
willful wrong.
19. TENANT'S LIABILITY INSURANCE; SUBROGATION RIGHTS
(a) Tenant shall obtain and keep in effect throughout the Term, an
insurance policy or policies, issued by insurance carriers reasonably
satisfactory to Owner, providing general public liability insurance against
claims for personal injury (including death), property damage, or otherwise,
arising out of or in any way connected with the Premises or this Lease, in
amounts of not less than a combined single limit of $1,000,000.00. Such
insurance shall not be subject to cancellation, reduction of coverage or
other modification without at least thirty (30) days prior notice to all
insureds, and such insurance shall name Owner, first mortgagee and Xxxxxx as
insured and if requested by Owner shall also name as additional insureds any
lessor and any other mortgagee.
(b) Prior to the commencement of the Term, Tenant shall provide
Owner with original certificates or duplicate originals of the policy or
policies of insurance referred to in subparagraph (a) with evidence that
premiums have been paid in full for the respective policy periods. Tenant
also shall furnish to Owner throughout the Term, replacement certificates or
renewal policies, together with evidence of like premium payment at least ten
(10) days prior to the respective expiration dates of the then current policy
or policies.
(c) Each party hereto waives any cause of action it might have
against the other party on account of any loss or damage that is insured
against under any insurance policy (to the extent that such loss or damage is
recoverable under such insurance policy and only to the extent of and with
respect to any loss or damage occurring during such time as the policy or
policies of insurance covering said loss shall contain a clause or
endorsement to the effect that this waiver shall not adversely affect or
impair said insurance or prejudice the right of the insured to recover
thereunder) that covers the Building, the Land, the Premises, Owner's or
Tenant's fixtures, personal property, leasehold improvements or business and
which names Owner or Tenant, as the case may be, as a party insured. Each
party hereto agrees that it will request its insurance carrier to endorse all
applicable policies waiving the carrier's rights of recovery under
subrogation or otherwise against the other party.
(d) Tenant shall obtain and keep in effect throughout the Term of
the Lease an insurance policy or policies with coverage known as business
interruption or business continuation insurance. This policy shall name Owner
as an additional insured. Such insurance shall not be subject to
cancellation, reduction of coverage or other modification without at least
thirty (30) days prior written notice to Owner.
(e) Any insurance required by Tenant hereunder shall be in
companies rated A+, AAA or better in "Best's Insurance Guide". If in the
reasonable opinion of Owner, the amount of liability insurance required
hereunder or the coverage under such policy is not adequate, then not more
frequently than twice during this Lease and any extension or renewal term of
this Lease, if any, Tenant shall reasonably increase said insurance coverage,
either in an amount or breadth of insurance as required by Owner provided
however that in no event shall the amount of the liability insurance increase
by more than fifty per cent (50%) of the amount of the insurance during the
preceding term of this Lease.
20. SUBORDINATION.
(a) This lease and all rights of Tenant hereunder are subject and
subordinate to any first deed of trust, first mortgage or other first
instrument of security (a "Mortgage"), and at Owner's option, this Lease and
all rights of Tenant hereunder are subject and subordinate to any junior
deed of trust, junior mortgage or other junior instrument of security, as
well as to any ground Lease or primary Lease (an "Underlying Xxxxx") that now
or hereafter covers all or any part of the Building, the Land, or any
interest of Owner therein, and to any and all advances made on the security
thereof, and to any and all increases, renewals, modifications,
consolidations, replacements and extensions of any Mortgage or Underlying
Lease. This provision is self-operative and no further instrument shall be
required to effect such subordination of this Lease. Tenant shall, however,
upon demand at any time or times execute, acknowledge and deliver to Owner or
to the holder ("Holder") of any Mortgage, or lessor ("Lessor") in any
Underlying Lease, any and all instruments and certificates that in the
judgment of Owner, Holder or Lessor may be necessary or desirable to confirm
or evidence such
subordination. Not in limitation of the generality of the foregoing. Tenant
agrees that any Holder shall have the right at any time to subordinate any
Mortgage to this Lease on such terms and subject to such conditions as such
Holder may deem appropriate in its discretion. Tenant further covenants and
agrees upon demand by Holder or Lessor at any time, before or after the
institution of any proceedings for foreclosure or sale pursuant to any
Mortgage, or termination of any Underlying Lease, to attorn to the purchaser
upon such foreclosure or sale or to Lessor upon such termination, and to
recognize such purchaser or Lessor as Owner under this Lease. The agreement
of Tenant to attorn contained in the immediately preceding sentence shall
survive any such foreclosure, sale or termination. Tenant, upon demand at
any time or times, before or after any such foreclosure, sale or termination,
shall execute, acknowledge and deliver to Holder or Lessor any and all
instruments that in the judgment of Holder or Lessor may be necessary or
desirable to confirm or evidence such attornment and Tenant hereby
irrevocably authorizes Holder or Lessor to execute, acknowledge and deliver
any such instruments on Tenant's behalf. 1
(b) If Owner shall be or is alleged to be in default of any of its
obligations owing to Tenant under this Lease, Tenant agrees to give to Holder
and Lessor a copy of any written notice (by registered or certified mail or
by delivery service) of any such default which Tenant shall have served upon
Owner, provided that prior thereto Tenant has been notified in writing (by
way of notice of assignment of rents and/or leases, or otherwise) of the name
and addresses of any such Holder and Lessor. Tenant shall not be entitled to
exercise any right or remedy as may exist because of any default by Owner
without having given such notice to Holder and Lessor; and Tenant further
agrees that if Owner shall fail to cure such default; (i) Holder or Lessor
shall have an additional thirty (30) days (measured from the later of the
date on which the default should have been cured by Owner, or the date of
Holder's or Lessor's receipt of such notice from Tenant), provided that if
such default could not be cured within such thirty (30) day period and Holder
or Lessor is diligently pursuing the remedies necessary to effectuate the
cure (including but not limited to foreclosure or termination proceedings, if
appropriate) such longer period as may be necessary, within which to cure
such default; and (ii) Tenant shall not exercise any right or remedy as may
exist or arise because of Owner's default, as may be expressly provided for
herein or available to Tenant as a matter of law, if the Holder or Lessor
either has cured the default within such thirty (30) day period, or as the
case may be, has initiated the cure of same within such thirty (30) day
period and is diligently pursuing the cure of same as aforesaid.
(c) If any Holder or Lessor, or a successor of either, succeeds to
the interest of Owner in the Land or Building, or acquires the right to
possession of the Land or Building, such person shall not be (i) liable for
any act or omission of Owner under this Lease; (ii) liable for the
performance of Owner's covenants hereunder which arise and accrue prior to
such person's succeeding to the interest of Owner hereunder or acquiring such
right to possession; (iii) subject to any offsets or defenses which Tenant
may have at any time against Owner; (iv) bound by any rent which Tenant may
have prepaid for more than one month; (v)in the event the unexpired term of
this Lease exceeds three years at the time of such succession or acquisition
of the right to possession, bound by any amendment or modification hereof
relating to the reduction of rent, shortening of term, or effecting a
cancellation or surrender hereof and made without the consent of such person;
or (vi) liable for the performance of any covenant of Owner under this Lease
which is capable of performance only by the original Owner.
21. ESTOPPEL CERTIFICATES. Xxxxxx agrees, from time to time as may be
requested by Owner, Holder or Lessor, within (5) days after such request, to
execute, acknowledge and deliver to such person(s) as may be specified in the
request, a certificate confirming and containing such factual certifications
and representations with respect to Tenant and this Lease, as may be deemed
appropriate by Owner, Holder or Lessor. Not in limitation of the foregoing,
such certificate shall confirm that this Lease is in full force and effect
and has not been amended, modified or superseded, that Owner has
satisfactorily completed all construction work required by this Lease
(subject to completion of punchlist items), that Xxxxxx has accepted the
Premises and is then in possession thereof, that Tenant has no defense,
offsets or counterclaims hereunder or otherwise against Owner with respect to
this Lease or the Premises, that Owner is not in default hereunder, that
Xxxxxx has no knowledge of any pledge or assignment of this Lease or rentals
hereunder (other than to Holder), and that Rent is accruing under this Lease
but has not been paid more than one month in advance (and specifying the date
to which Rent has been paid). If any of the foregoing shall not be the case,
Tenant shall specify in reasonable detail the extent and nature of the
deviation therefrom.
1 So long as Tenant is not in default under the Lease, the holder agrees
not to disturb the use and occupancy of the Tenant and if the Tenant is
required to attorn to a new Owner, such attornment shall be subject to
all of the terms and conditions of the Lease.
/s/RA
---------------------- ------------------
Owner's Initials Tenant's Initials
10A
22. ASSIGNMENT AND SUBLETTING BY TENANT.
(a) Without the prior written consent of Owner, Tenant shall not
(i) assign or in any manner transfer this Lease or any estate or interest
therein, or (ii) permit any assignment of this Lease or any estate or
interest therein by operation of law, or (iii) sublet the Premises or any
part thereof, or (iv) grant any license, concession or other right of
occupancy of any portion of the Premises, or (v) permit the use of the
Premises by any parties other than Tenant, its agents and employees, and any
such acts without Owner's prior written consent shall be void and of no
effect. Consent by Owner to one or more assignments or sublettings shall not
operate as a consent to, or a waiver of Owner's rights with respect to, any
subsequent assignments and sublettings. Notwithstanding any assignment or
subletting, Tenant and any guarantor of Tenant's obligations under this Lease
shall at all times remain fully responsible and liable for the payment of the
Rent and for compliance with all of Tenant's other obligations under this
Lease. If an Event of Default should occur while the Premises or any part
thereof is then assigned or sublet, Owner, in addition to any other remedies
herein provided or provided by law, may at its option collect directly from
such assignee or sublessee all payments becoming due to Tenant under such
assignment or sublease and apply such payments against any sums due to Owner
by Tenant hereunder, and Tenant hereby authorizes and directs any such
assignee or sublease to make such payments directly to Owner upon receipt of
notice from Owner. No direct collection by Owner from any such assignee or
sublessee (regardless of whether or not such assignee or sublessee shall be
deemed to be void and of no effect as stated in the first sentence of this
(a)) shall be construed to constitute a novation or a release of Tenant or
any guarantor of Tenant from the further performance of its obligations
hereunder. Receipt by Owner of payments from any assignee, sublessee or
occupant of the Premises shall not be deemed a waiver of the covenants in
this Lease against assignment and subletting, or a release of Tenant under
this Lease. The receipt by Owner from any such assignee or sublessee
obligated to make payments shall be a full and complete release, discharge
and acquittance to such assignee or sublessee to the extent of any such
amount so paid to Owner. Owner is authorized and empowered on behalf of
Tenant to endorse the name of Tenant upon any check, draft, or other
instrument payable to Tenant evidencing payment under an assignment or
sublease to Tenant, and to receive and apply the proceeds thereof in
accordance with the terms hereof.
(b) Tenant shall not mortgage, pledge or otherwise encumber this
Lease or any estate or interest therein or in the Premises.
(c) If Tenant requests Owner's consent to an assignment of the
Lease or subletting of all or a part of the Premises, it shall submit to
Owner, in writing, the name of the proposed assignee or subtenant and the
nature and character of the business of the proposed assignee or subtenant,
the term, use, rental rate and other particulars of the proposed subletting
or assignment, including without limitation, evidence satisfactory to Owner
that the proposed subtenant or assignee is financially responsible and will
immediately occupy and thereafter use the Premises (or any sublet portion
thereof) for the remainder of the term (or for the entire term of the
sublease, if shorter).
(d) If Owner consents to any subletting or assignment by Xxxxxx as
above
provided, and subsequently any payments received by Tenant under any such
sublease are in excess of the Rent payable by Tenant under this Lease, or any
additional consideration is paid to Tenant by the assignee under any such
assignment, then Owner may, at its option, either (i) declare such excess
payments under such sublease or such additional consideration for such
assignment to be due and payable by Tenant to Owner as Additional Rent
hereunder, or (ii) elect to cancel this Lease as provided in subparagraph (c)
hereof.
(e) All of the foregoing notwithstanding, Tenant shall not enter into
any lease, sublease, license, concession or other agreement for the use,
occupancy or utilization of the Premises or any portion thereof, which
provides for a rental or other payment for such use, occupancy or utilization
based in whole or in part on the income or profits derived by any persons
from the property leased, occupied or utilized (other than an amount based on
a fixed percentage of percentages of receipts or sales). Any such purported
lease, sublease, license, concession or other agreement shall be absolutely
void and ineffective as a conveyance of any right or interest in the
possession, use or occupancy of any part of the Premises. 1
23. HOLDING OVER. Tenant shall, at the expiration or earlier termination of
the Term, promptly quit and surrender the Premises in good order and
condition and in conformity with the applicable provisions of this Lease,
excepting only reasonable wear and tear and damage by fire or other insured
casualty. Tenant shall have no right to hold over beyond the expiration or
earlier termination of the Term and in the event Tenant shall fail to deliver
possession of the Premises as herein provided, such occupancy shall not be
construed to effect or constitute other than a tenancy at sufferance, at a
daily rental equal to (a) the greater of (i)2 the Rent (calculated on a per
diem basis) in effect for the last day of the Term, or (ii) the then current
market rental (calculated on a per diem basis) for the Premises, plus (b) all
damages, costs and expenses sustained by Owner by reason of Tenant's holding
over. Without limiting any rights and remedies of Owner as a result of the
holding over by Tenant, and without creating any right in Tenant to continue
in possession of the Premises, all of Tenant's obligations provided for in
this Lease with respect to the use, occupancy and maintenance of the Premises
shall continue during such hold over period. The inclusion of this paragraph
shall not be construed as Owner's consent for Tenant to hold over.
24. ACCEPTANCE OF SURRENDER OF PREMISES. During the Term, tenant shall
continuously occupy the Premises and shall not permit the Premises to become
vacant or abandoned. No act or thing gone by Owner or its agents during the
Term shall be deemed an acceptance of a surrender of the Premises, and no
agreement to accept a surrender of the Premises shall be valid unless the
same is made in writing and signed by Owner.
25. CONDEMNATION.
(a) If any taking by condemnation, or sale in lieu thereof, pursuant to
an exercise of a power of eminent domain ("Condemnation") occurs with respect
to the Building or Land or any portion of either, which would leave the
remainder of the Building or Land unsuitable for use comparable (economically
or otherwise) to its use prior to the Condemnation, in Owner's reasonable
judgement, then Owner may terminate this Lease.
(b) If any Condemnation occurs with respect to the entire Premises, or
more than 25% thereof (by floor area), or such portion of the Premises as
renders the remainder thereof unsuitable for use comparable (economically or
otherwise) to its use prior to the Condemnation, in Owner's reasonable
judgement, then Owner or Tenant may terminate this Lease.
(c) If Owner determines that the compensation awarded for Condemnation,
available for restoration of the Land, Building or Premises will not be
sufficient to pay the cost of restoration, or if such award is required to be
applied on account of any Mortgage or Underlying Lease, or if Owner
determines that the length of the Term remaining after restoration would make
restoration impractical (whether for economic of other reasons), Owner may
terminate this Lease.
(d) Any termination of this Lease pursuant to this paragraph shall be
effective upon the earlier of the date title to or possession of the
condemned real estate vests in the condemnor. All Rent shall be apportioned
equitably and paid in full be Tenant to Owner to that date. In the event of a
Condemnation which does not effect a termination of this Lease but does
deprive Tenant of the use of a portion of the Premises, there shall be an
equitable reduction of
1 Owner agrees that consent for assignment will not be unreasonably withheld
provided the entity the lease is being assigned to has equal or greater net
worth than the existing Tenant.
2 One Hundred Fifty Percent (150%)
/s/ RA
------------------------ -------------------------
Owner's Initials Tenant's Initials
12A
expense, to insure the value of its leasehold improvements, fixtures, equipment
or other property located in the Premises, for the purpose of providing funds
to Owner to repair the Premises. Except as otherwise provided in this Lease,
any insurance which may be carried by Owner or Tenant against loss or damage to
the Building or to the Premises shall be for the sole benefit of the party
carrying such insurance and under its sole control.
(f) If this Lease is terminated pursuant to this paragraph, all
Rent shall be apportioned equitably and paid in full by Tenant to Owner to
the date of termination. This provision shall not relieve Tenant of
liability to Owner for damages (including damages arising due to early
termination of this Lease) arising out of the negligence or other tortious
conduct of Tenant or Tenant Parties.
(g) In the event of a fire or other casualty damage not arising out
of the negligence or other tortious conduct of Tenant or Tenant Parties,
which does not result in termination of this Lease pursuant to this paragraph
but does deprive Tenant of the use of a portion of the Premises, there shall
be an equitable reduction of the Rent, taking into account the period for
which and the extent to which such portion of the Premises is not reasonably
usable for the Permitted Use.
27. EVENTS OF DEFAULT. In addition to any Event of Default specified
elsewhere in this Lease, each of the following events shall be deemed to be
an "Event of Default" by Tenant under this Lease:
(a) Failure by Tenant to pay when due any installment of Rent payable
by Tenant hereunder (or any rental or other sum under any other lease now or
hereafter executed by Xxxxxx in connection with space in the Building).
(b) Failure by Tenant to comply with or observe any other provision
of this Lease (or any other Lease now or hereafter executed by Tenant in
connection with space in the Building) after ten (10) days notice of such
failure.
(c) Vacation or abandonment by Tenant or any portion of the Premises.
(d) (i) Appointment of a receiver to take possession of, or making of
an attachment or execution against, Xxxxxx's assets or any substantial portion
thereof, or Tenant's interest in this Lease; or
(ii) Making by Tenant of a general assignment for the benefit or
creditors; or
(iii) Admission by Xxxxxx in writing of its inability to meet its
obligations as they mature; or
(iv) Commission by Tenant of any other act of bankruptcy or filing
by Tenant of a petition or institution of a proceeding on its behalf under any
section or chapter of the Bankruptcy Code of the United States, as amended, or
under any similar law or statute of the United States or any state thereof
("Bankruptcy Laws"); or
(v) Filing by any third party of a petition or institution by any
third party of a proceeding against Tenant under any Bankruptcy Law, and such
petition or proceeding is not dismissed within thirty (30) days; or
(vi) Adjudication of Tenant as a bankrupt; or
(vii) Occurrence of any of the foregoing actions in this
subparagraph (d) with respect to any guarantor of Tenant's obligations under
this Lease, or default by such guarantor in performance of any provision under
its guaranty.
28. OWNER'S REMEDIES. If an Event of Default shall occur, the following
provisions shall apply and Owner shall have the rights and remedies,
cumulatively if possible, set forth herein, which rights and remedies may be
exercised, separately or cumulatively, notwithstanding any election of
remedies, upon or at any time following the occurrence of an Event of Default
unless, prior to such exercise, Owner shall agree in writing with Tenant that
the Event of Default has been cured by Tenant in all respects;
Tenant will be granted a ten (10) day grace period for late payment of rent,
as stipulated in paragraph 7. page 4 of 23.
/s/RA
-------------------- ---------------------
Owner's Initials Tenant's Initials
14A
(a) Acceleration of Rent. (i) By notice to Tenant, Owner shall have the
right to accelerate all Base Rent and all Additional Rent due hereunder and
otherwise payable in installments over the remainder of the Term, and, at
Owner's option, any other Additional Rent and other Rent to the extent that
such Additional Rent and other Rent can be determined and calculated (which
may be reasonably estimated by Owner) to a fixed sum; and the amount of all
of such accelerated Rent, without further notice or demand for payment, shall
be due and payable by Tenant within five (5) days after Owner has so notified
Tenant. Additional Rent and other Rent which has not been included in
accelerated Rent, shall be due and payable by Tenant during the remainder of
the Term, in the amounts and at the times otherwise provided for in this
Lease.
(ii) Notwithstanding the foregoing or the application of any rule
of law based on election of remedies or otherwise, if Tenant fails to pay the
accelerated Rent in full when due, Owner thereafter shall have the right by
notice to Xxxxxx. (A) to terminate Tenant's further right to possession of
the Premises and (B) to terminate this Lease under subparagraph (c) below;
and if Tenant shall have paid part but not all of the accelerated Rent, the
portion thereof attributable to the period equivalent to the part of the Term
remaining after Owner's termination of possession or termination of this
Lease shall be applied by Owner against Tenant's obligations owing to Owner
as determined by the applicable provisions of subparagraphs (d) and (f) below.
(b) Taking of Possession - Curing Xxxxxx's Defaults. (i) With or
without notice, Owner shall have the right to enter upon and take possession
of the Premises and expel or remove Xxxxxx and any other person who may be
occupying the Premises or any part thereof, by force if necessary, without
being liable for prosecution or any claim for damages therefore. No re-entry
or taking possession of the Premises by Owner shall be construed as an
election on its part to terminate this Lease, unless a written notice of
termination is given to Tenant.
(ii) With or without re-entering and taking possession of the
Premises, and with or without notice to Tenant, Owner may make any payment
which Tenant was obligated but failed to make under this Lease, and perform
or attempt to perform any other obligation of Tenant under this Lease which
Xxxxxx has failed to perform.
(c) Termination of Lease. (i) By notice to Tenant, Owner shall have
the right to terminate this Lease as of the date specified in the notice.
Tenant's rights to the possession and use of the Premises shall end
absolutely as of the specified termination date, and this Lease shall
terminate in all respects except for the provisions hereof regarding Owner's
damages and Xxxxxx's liabilities arising prior to, out of and following the
Event of Default and the ensuing termination, and the provisions hereof which
by their terms survive termination. Therefore after termination of the Lease,
Tenant shall remain liable to Owner for damages as calculated pursuant to
28.(f).
(ii) Following such termination (as well as upon any other
termination of this Lease by expiration of the Term or otherwise) Owner
immediately shall have the right to recover possession of the Premises; and
to that end, Owner may enter the Premises and take possession, without the
necessity of giving Tenant any notice to quit or any other notice, with or
without legal process or proceedings, and in so doing Owner may remove
Tenant's property (including any improvements or additions to the Premises
which Tenant made, unless made with Owner's consent which expressly permitted
Tenant to not remove the same upon expiration of the Term), as well as the
property of others as may be in the Premises, and make disposition thereof in
such manner as Owner may deem to be commercially reasonable under the
circumstances.
(d) Xxxxxx's Continuing Obligations - Owner's Re-letting Rights.
(i) Unless and until Owner shall have in writing terminated this Lease under
subparagraph (c) above, Tenant shall remain fully liable and responsible to
perform all of the covenants and to observe all the conditions of this Lease
throughout the remainder of the Term; and, in addition, whether or not Owner
shall have terminated this Lease, Tenant shall pay to Owner, on demand and
with interest thereon at the Reimbursement Interest Rate from the due date
until paid, the total sum of all costs, losses and expenses, including
reasonable counsel fees, as Owner incurs, directly or indirectly, because of
any Event of Default having occurred.
(ii) If Owner either terminates Tenant's right to possession
without terminating this Lease or terminates this Lease and Tenant's
leasehold estate as above provided,
Owner shall have the unrestricted right to re-let the Premises or any part
thereof to such tenants, on such provisions, and for such periods as Owner
may deem appropriate. It is understood that Owner shall have no obligation to
have the Premises available for re-letting or otherwise endeavor to re-let so
long as Owner (or any affiliated entity) has other comparable or competing
vacant space or property available for leasing to others in the Building or
in other buildings in the general market area of which the Building is a
part; and that notwithstanding non-availability of other space or property.
Owner's obligation to mitigate damages shall be limited to such efforts as
Owner, in its reasonable judgment, deems appropriate.
(e) Bankruptcy Assurances. Owner and Tenant understand that,
notwithstanding certain provisions to the contrary contained herein, a
trustee or debtor in possession under the Bankruptcy Code of the United
States (or other Bankruptcy Laws) may have certain rights to assume or assign
this Lease. Owner and Tenant further understand that in any event Owner is
entitled under the Bankruptcy Code (or other Bankruptcy Laws) to adequate
assurances of future performance of the terms and provisions of this Lease.
For purposes of any such assumption or assignment, the parties hereto agree
that the term "adequate assurance" shall include at least the following:
(i) In order to assure Owner that the proposed assignee will have
the resources with which to pay the Rent, any proposed assignee must have
demonstrated to Owner's satisfaction a net worth (as defined in accordance
with generally accepted accounting principles consistently applied) at least
as great as the net work of Tenant on the commencement Date, increased by ten
percent (10%) for each year from the Commencement Date through the date of
the proposed assignment. The financial condition and resources of Tenant
were a material inducement to Owner in entering into this Lease.
(ii) Any proposed assignee must have been engaged in the business
conducted by Xxxxxx in the Premises, allowable pursuant to the Permitted Use,
for at least five (5) years prior to any such proposed assignment.
(iii) Any proposed assignee must agree to use the Premises only for
the Permitted Use. In entering into this Lease, Owner considered extensively
the Permitted Use and determined that such Permitted Use would add
substantially to Owner's tenant balance and that were it not for Tenant's
agreement to use the Premises only for the Permitted Use, Owner would not
have entered into this Lease. Owner's overall operation will be substantially
impaired if the trustee in bankruptcy or any assignee of this Lease makes any
use of the Premises other than the Permitted Use.
(f) Owner's Damages. (i) Whether the Lease is terminated or not the
damages which Owner shall be entitled to recover from Tenant shall be the sum
of:
(A) All Rent accrued and unpaid as of the termination date or the
date Owner retakes possession of the premises (whichever occurs later); and
(B) (1) all costs and expenses incurred by Owner in recovering
possession of the Premises, including removal and storage of Tenant's
property, improvements and Alterations therefrom, (2) the costs and expenses
of curing or attempting to cure any default by Xxxxxx, (3) the costs and
expenses of restoring the Premises to the condition in which the same were to
have been surrendered by Xxxxxx as of the Ending Date of Term, or, in lieu
thereof, the costs and expenses of remodeling or altering the Premises or any
part for re-letting the same, (4) the costs of re-letting (exclusive of those
covered by the foregoing) including brokerage fees and reasonable counsel
fees, and (5) any special overhead expenses related to the vacancy of the
Premises not in excess of ten percent (10%) of the monthly Base Rent
otherwise to be paid by Tenant over the remainder of the Term, for each month
or part between the date of termination and the re-letting of the entire
Premises; and
(C) All Base Rent and Additional Rent and other Rent (to the
extent that the amount of Additional Rent and other Rent has been then
determined or estimated as provided above) otherwise payable by Tenant over
the remainder of the Term; and
(D) All reasonable attorney fees, court costs, arbitration costs,
witness fees and similar costs of enforcing this Lease;
(E) Less [deducting from the total determined under subparagraphs
(A),
(B), (C) and (D)] all Rent and Additional Rent which Owner receives from
other tenants by reason of the leasing of the Premises or part thereof or
attributable to any period falling within what would otherwise have been the
remainder of the Term. If the premises covered by a new lease by other
tenants include other premises not part of the Premises of this Lease, a fair
apportionment of the rent received from such new lease and expenses incurred
in connection therewith as provided aforesaid will be made in determining the
net proceeds from such new lease. If the existing term of a new lease by
other tenants is different from the Term of this Lease any rent concessions
will be equally apportioned over the term of the new lease.
(ii) the damages payable by Tenant under the preceding provisions
of this subparagraph (f) shall be payable on demand from time to time as the
amounts are determined; and if from Owner's subsequent receipt of rent as
aforesaid from re-letting, there shall be any excess payment(s) by Tenant by
reason of the crediting of such rent thereafter received, the excess
payment(s) shall be refunded by Owner to Tenant, without interest.
(iii) If this Lease is terminated, then Owner shall have the
additional options to determine the damages as follows:
(A) Tenant shall be liable for amounts determined pursuant to 28,
OWNER'S REMEDIES. (a)(i). Owner may have damages determined under this
section A. even if Owner did not previously accelerate the rent pursuant to
28 (a)(i).
(B) Owner shall be entitled to recover forthwith against Tenant as
damages for loss of the bargain, and not as a penalty, an aggregate sum
which, at the time of such termination of this lease, represents the
aggregate of the rent and all other sums payable by Tenant hereunder that
would have accrued for the balance of the term discounted present worth at
the rate of 4% per annum.
(g) Interest on Damages Amounts. Any sums payable by Tenant hereunder
which are not paid after the same shall be due shall bear interest, from the
due date until paid, at the Overdue Interest Rate.
(h) Owner's Statutory Rights. Owner shall have all rights and remedies
now or hereafter existing at law or in equity with respect to the
enforcement of Tenant's obligations hereunder and the recovery of the
Premises. No right or remedy herein conferred upon or reserved to Owner shall
be exclusive of any other right or remedy, but shall be cumulative and in
addition to all other rights and remedies given hereunder or now or hereafter
existing at law or in equity. Owner shall be entitled to injunctive relief in
case of the violation, or attempted or threatened violation, by Tenant of any
covenant, agreement, condition or provision of this Lease, or to a decree
compelling performance of any covenant, agreement, condition or provision of
this Lease. If Tenant is in default, Tenant may not remove property subject
to the security interest referred to in paragraph 29. OWNER'S LIEN. Owner
shall be entitled to injunctive relief in case Tenant attempts to remove
property subject to the security interest referred to in paragraph 29.
OWNER'S LIEN. This injunctive relief includes, but is not limited to a
temporary or permanent restraining order. Tenant hereby agrees to the
issuance of such restraining order ex parte. Tenant acknowledges that Owner's
Remedy at law in such a case would be inadequate and that the equitable
relief may be brought without the necessity of proof of actual damage or
inadequacy or any legal remedy. Notwithstanding any statute to the contrary,
Owner shall have the right to such restraining order without the necessity
of a bond.
(i) Remedies Not Limited. Nothing herein contained shall limit or
prejudice the right of Owner to exercise any or all rights and
remedies available to Owner by reason of default or to prove and obtain in
proceedings under any Bankruptcy Laws, an amount equal to the maximum
allowance permitted by an law in effect at the time when, and governing the
proceedings in which, the damages are to be proved, whether or not the amount
is greater, equal to, or less than the amount of the loss or damages referred
to above.
(j) No termination Except by Owner in writing. No action by Owner,
including without limitation legal proceedings for eviction, unlawful detainer
or similar actions that may be available under the laws of the State, shall be
deemed a termination of this Lease or of Tenant's obligations hereunder
unless Owner specifies in writing that the Lease is terminated and that Xxxxxx
has no further liability hereunder.
(k) No Waiver by Owner. No delay or forbearance by Owner in exercising
any right or remedy hereunder, or Owner's undertaking or performing any act
or matter which is not expressly required to be undertaken by Owner shall be
construed, respectively, to be a waiver of Owner's rights or to represent any
agreement by Owner to undertake or perform such act or matter thereafter.
Waiver by Owner of any breach by Tenant of any covenant or condition herein
contained (which waiver shall be effective only if so expressed in writing by
Owner) or failure by Owner to exercise any right or remedy in respect of any
such breach shall not constitute a waiver or relinquishment for the future of
Owner's right to have any such covenant or condition duly performed or
observed by Xxxxxx, or of Owner's rights arising because of any subsequent
breach of any covenant or condition, nor bar any right or remedy of Owner in
respect of such breach or any subsequent breach. Owner's receipt and
acceptance of any payment from Tenant which is tendered not in conformity
with the provisions of this Lease or following an Event of Default
(regardless of any endorsement or notation on any check or any statement in
any correspondence accompanying any payment) shall not operate as an accord
and satisfaction or a waiver of the right of Owner to recover any payments
then owing by Tenant which are not paid in full, or act as a bar to the
termination of this Lease and the recovery of the Premises because of
Tenant's previous default.
30. CERTAIN RIGHTS RESERVED BY OWNER. Owner (acting itself or through
persons authorized by it) shall have the following rights, exercisable from
time to time without notice and without liability to Tenant or damage or
injury to property, persons or business and without effecting an eviction,
constructive or actual, or disturbance of Tenant's use or possession of the
Premises or giving rise to any claim for set off or abatement of Rent or
otherwise affecting Tenant's obligations hereunder:
(a) To decorate and to make repairs, alterations, additions, changes or
improvements whether structural or otherwise, in and about the Building, or
any part thereof, and for such purposes to enter upon the Premises, and
during the continuance of any such work, to temporarily close doors,
entryways, common areas, public space and corridors in the Building, to
interrupt or temporarily suspend Building Services and facilities and to
change the arrangement and location of entrances or passageways, doors and
doorways, corridors, elevators, stairs, toilets, or other public parts of the
Building, so long as the Premises are reasonably accessible and Tenant is not
unreasonably disturbed in use or possession thereof.
(b) To have and retain paramount title to the Premises free and clear of
any act of Tenant purporting to burden or encumber the Premises.
(c) To grant to anyone the exclusive right to conduct any business in or
render any service to the Building, provided such exclusive right shall not
operate to exclude Tenant from the Permitted Use.
(d) To prohibit the placing of vending or dispensing machines of any
kind in or about the Premises without the prior written permission of Owner.
(e) To have access for Owner and other tenants of the Building to any
mail chutes located on the Premises according to the rules of the United
States Postal Service.
(f) To take all such reasonable measures as Owner may deem advisable for
the security of the Building and its occupants, including without limitation,
the search of persons entering or leaving the Building, the evacuation of the
Building for cause, suspected cause, or for drill purposes, the temporary
denial of access to the Building, and the closing of the Building after
normal business hours and on Saturdays, Sundays and holidays, subject,
however to Tenant's right to admittance when the Building is closed after
normal business hours under such reasonable regulations as Owner may
prescribe from time to time which may include by way of example but not of
limitation, that persons entering or leaving the Building, whether or not
during normal business hours, identify themselves to a security officer by
registration or otherwise and that such persons establish their right to
enter or leave the Building.
(g) To enter the Premises to perform Owner's covenants under this Lease,
to exercise Owner's remedies under this Lease, to ascertain if tenant is in
compliance with its covenants under this Lease, to inspect the Premises, and
to exhibit the Premises to Mortgagees and Lessors and to prospective lenders,
purchasers and tenants. 1
(h) To change the name by which the Building is designated.
(i) To transfer, assign and convey, in whole or in part, the Building
and any and all of its rights under this Lease, and in the event Owner
assigns its rights under this lease, Owner shall thereby be released from any
further obligations hereunder, and Xxxxxx agrees to attorn to and look solely
to such successor in interest of the Owner for performance of such
obligations.
1. Owner agrees to give Tenant reasonable notice prior to entering the
premises except in the case of an emergency.
/s/ RA
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Owner's Initials Tenant's Initials
32. BROKERS. Each party warrants to the other that it has had no dealings
with any broker or agent in connection with the negotiation or execution of
this Lease except as may be named in the Basic Lease Provisions, and each
party agrees to indemnify the other against all costs, expenses, attorney's
fees or other liability for commissions or other compensation or charges
claimed by any broker or agent claiming the same by, through or under said
indemnifying party.
33. QUIET ENJOYMENT. Provided Tenant has performed all of the terms and
conditions of this Lease, including the payment of Rent, to be performed by
Xxxxxx, Tenant shall peaceably and quietly hold and enjoy the Premises for
the Term, without hindrance from Owner, subject to the terms and conditions
of this Lease.
34. NOTICES. Each provision of this Lease, or of any applicable
governmental law, ordinance or regulation, or other requirement, with
reference to the sending, mailing or delivery of any notice or document, or
with reference to the making of any payment by Tenant to Owner, shall be
deemed to be complied with when and if the following steps are taken:
(a) All Rent and other payments required to be made by Tenant to
Owner hereunder shall be payable to Owner at Owner's Address set forth in the
Basic Lease Provisions or at such other address as Owner may specify from
time to time by notice to Tenant, and shall be deemed delivered only upon
actual receipt (and if other than in cash, subject to collection).
(b) Any notice or document required to be delivered hereunder shall
be deemed to be delivered if actually received and whether or not received
when deposited in the United States mail, postage prepaid, certified or
registered mail (with return receipt requested), addressed to the party to
receive same at its address set forth in the basic Lease Provisions or at
such other address as said party has theretofore specified to the other by
notice.
35. FORCE MAJEURE. Whenever a period of time is herein prescribed for
action to be taken by Owner, Owner shall not be liable or responsible for,
and there shall be excluded from the computation of any such period of time,
any delays due to strikes, riots, acts of God, shortages of labor or
materials, war, governmental laws, regulations or restrictions or any other
causes of any kind whatsoever which are beyond the control of Owner ("Force
Majeure").
36. ENTIRE AGREEMENT: ADDENDUMS: WAIVERS: BINDING EFFECT. This Lease
contains and embodies the entire agreement of the parties hereto with respect
to the subject matter hereof, and no representations, inducements or
agreements, oral or otherwise, between the parties not contained in this
Lease shall be of any force or effect. This Lease may not be supplemented or
amended, except by instrument in writing signed by both parties hereto. No
provision of this Lease shall be deemed to have been waived by Owner unless
such waiver is in writing signed by Owner and addressed to Tenant, nor shall
any custom or practice which may evolve between the parties in the
administration of the terms thereof be construed to waive or lessen the right
of Owner to insist upon performance by Xxxxxx in strict accordance with the
terms hereof. The terms and conditions contained in this Lease shall apply
to, inure to the benefit of, and be binding upon the parties hereto, and upon
their respective successors in interest and legal representatives, except as
otherwise herein expressly provided.
37. SEVERABILITY. If any clause or provision of this Lease is illegal,
invalid, or unenforceable under present or future laws effective during the
Term, the remainder of this Lease shall not be affected thereby and in lieu
of such clause or provision, there shall be deemed added as a part of this
Lease a clause or provision as similar in terms thereto as may be possible and
be legal, valid and enforceable.
38. JOINT AND SEVERAL LIABILITY OF TENANT. If there is more than one
person comprising Xxxxxx, the obligations imposed upon Tenant hereunder shall
be joint and several. If there is a guarantor or there are guarantors of
Tenant's obligations hereunder, the obligations imposed upon Tenant shall be
the joint and several obligations of Tenant and each such guarantor and Owner
need not first proceed against Tenant before proceeding against any such
guarantor, nor shall any such guarantor be released from its guaranty for any
reasons whatsoever, including without limitation, any amendment hereto,
waiver of any provision hereof or failure to give such guarantor any notice
hereunder.
39. OWNER'S LIABILITY LIMITATION. The liability of Owner to Tenant for
fulfillment of any obligation of Owner or for any default by Owner under the
terms of this Lease shall be limited to the interest of Owner in the Building
and the Land; tenant shall look solely to such interest for satisfaction
thereof; and Owner shall not be personally liable for any deficiency.
40. ARBITRATION. 1
(a) At Owner's option, all claims, disputes and other matters in
question or calling for mutual agreement, between Owner and Tenant arising
out of, or relating to this Lease or the breach thereof, shall be decided by
arbitration in accordance with the Commercial Arbitration Rules of the
American Arbitration Association then obtaining. At Owner's option, any
arbitration arising out of or relating to this Lease or any breach hereof
shall include, by consolidation, joinder or joint filing any other person not
a party to this Lease to the extent necessary for the final resolution of the
matter in controversy. This agreement by Tenant to arbitrate shall be
specifically enforceable by Owner under the prevailing arbitration law. The
award rendered by the arbitrators shall be final, and judgment may be entered
upon it in accordance with applicable law in any court having jurisdiction
thereof.
(b) Notice of the demand for arbitration shall be filed by Owner in
writing with tenant and with the American Arbitration Association. The demand
for arbitration shall be made within a reasonable time after the claim,
dispute or other matter has arisen, and in no event shall it be made after
the date when institution of legal or equitable proceedings based on such
claim, dispute or other matter would be barred by the applicable statute of
limitations.
(c) Unless otherwise agreed in writing by Owner, Owner and Xxxxxx
shall continue to perform their obligations under this Lease in accordance
with Owner's interpretation of the claim, dispute or other matter during any
arbitration proceedings, until final resolution thereof.
(d) At Owner's option, the venue for arbitration or litigation with
respect to all claims, controversies and disputes arising out of or relating
to this Lease or any breach hereof, shall be the county in which the Land
and Building are located.
41. WAIVER OF TRIAL BY JURY. To the extent such waiver is permitted by
applicable law, Owner and Tenant waive trial by jury in any action or
proceeding brought in connection with
1 Tenant shall have the same right to require arbitration as does Owner as
stated in this paragraph.
/s/ RA
------------------------------ ------------------------------
Owner's Initials Tenant's Initials
this Lease or the Premise.
42. APPLICABLE LAW. This Lease and the rights and obligations of Owner
and Tenant hereunder shall be construed in accordance with and governed by
the laws of the State of Colorado.
43. MISCELLANEOUS.
(a) Any approval by Owner of Owner's architects and/or engineers
of any of Tenant's Plans shall not in any way be construed or operate to bind
Owner or to constitute a representation or warranty of Owner as to the
adequacy or sufficiency of such Plans or the Alterations to which they
relate, for any use, purpose, or condition, but such approval shall merely be
the consent of Owner as may be required hereunder.
(b) Nothing contained in this Lease shall be deemed or construed
to create a partnership or joint venture of or between Owner and Tenant, or
to create any other relationship between the parties hereto other than that
of landlord and tenant.
(c) Words of any gender used in this Lease shall be held and
construed to include any other gender, and words in the singular number shall
be held to include the plural, unless the context otherwise requires. The
word "person" as used in this Lease means any natural person, legal entity,
or body politic.
(d) The submission of this Lease to Tenant shall not be construed
as an offer, nor shall Tenant have any rights with respect thereto unless and
until Owner shall have executed a copy of this Lease and delivered the same
to the Tenant.
(e) If Tenant is a corporation, each of the persons executing
this Lease on behalf of Tenant hereby warrants that Tenant is a duly formed
and existing corporation, qualified to do business in the State, that the
Tenant has the full right and authority to enter into the Lease, and that
each of the persons signing on behalf of Tenant are authorized to do so.
(f) The covenants and obligations of Owner and Tenant hereunder
are independent, such that the obligations of Tenant to pay rent hereunder
are not contingent upon any act or failure to act by Owner.
(g) If Owner consults with an attorney to enforce any provisions
of this Lease then all costs, including reasonable attorney fees from the
date any such matter is turned over to an attorney shall be recoverable by 1
44. RECORDING. Tenant hereby covenants and agrees not to place the
Lease of record. If so requested by Owner, Xxxxxx shall execute a short form
memorandum of lease which memorandum may, at Owner's option, be placed of
record. Any recording of the Lease or of any notice or memorandum thereof by
Tenant without Owner's prior written consent shall be a default under the
Lease and Owner shall have all of the rights and remedies set forth therein
for a default. In addition, if requested by Owner, tenant shall execute a
memorandum of lease to be filed with the Colorado Department of Revenue on
such form as may be prescribed by said department within ten (10) days after
execution of the Lease, or any other such memorandum so that Owner may avail
itself of such statutes as Section 39-22-604(7)(c) of the Colorado Revised
Statutes (1973).
45. ACTS TO BE PERFORMED BY TENANT PRIOR TO TENANT'S CONSTRUCTION.
(a)In the event that Xxxxxx receives Owner's prior written
approval to commence any alterations, additions, improvements or construction
of whatever kind or nature to be done by Tenant in or about the Premises (the
"Alterations"), which approval or disapproval shall be in Owner's sole and
subjective discretion, then, as a condition precedent to Tenant's commencing
such Alterations, Tenant shall submit to Owner the following items:
(i) all architectural, engineering, construction and/or
design drawings, plans, specifications, studies, reports, bids and other
material of every kind relating to the Alterations (the "Plans and
Specifications");
(ii) an originally signed copy of the contract between
Tenant and any and
1 the prevailing party
-------------------- ----------------------
Owner's Initials Tenant's Initials
22A
all contractors, subcontractors, materialmen or suppliers together with
copies of any and all subcontracts and supply
contracts relating to the Alterations;
(iii) a standard indemnification in a form approved by
Owner.
(iv) originally signed xxxx xxxxxxx from all subcontractors
and materialmen or suppliers for all work done and/or material supplied in
connections with the Alterations in a form approved by Owner; and
(v) an originally signed general release of liens from
Xxxxxx's general contractor in a form approved by Owner; and
(vi) a standard form of notice to be posted at the Property
in a form approved by Owner.
(b) Upon completion of the Alterations, tenant shall submit to
Owner:
(i) a certification from Tenant's general contractor and,
if requested by Owner, from Tenant's architect, certifying that each has
inspected the Premises not more than five (5) days prior to the date of the
certification and that the Alterations have been constructed in good and
workmanlike manner and in substantial accordance with the Plans and
Specifications and with the requirements of the governmental authorities
having jurisdiction or control over same, and that all materials for which
payments has been made by Tenant have been delivered to and have been
incorporated into the Premises; and
(iii) final unconditional certificate(s) of occupancy, or
the equivalent issued by the applicable governmental authority.
46. PERSONAL PROPERTY TAXES. Tenants shall pay, prior to delinquency,
all taxes, assessments license fees and public charges levied, assessed or
imposed upon or measured by the value of its personal property and business
operations, including but not limited to, the furniture, fixtures, leasehold
improvements, equipment and other property of Tenant at pay time situated
upon or installed in the Premises by Tenant. Tenant shall cause all such
personal property to be assessed and billed separately from the real property
of Owner.
47. TRANSFER OF INTEREST. If Tenant is a partnership or corporation,
the transfer, sale, conveyance and disposition of a controlling interest in
Tenant to any third party, including without limitation, to an affiliate of
Tenant shall be deemed as assignment or transfer of Tenant's interest under
the Lease for purposes of Section 22 of the Lease. As used herein, the term
"affiliate" shall mean any subsidiary or parent company of Tenant and any
subsidiary of a parent company of Tenant, or any entity related to Tenant or
held in common control with Tenant.
48. SPECIAL PROVISIONS. Special Provisions, if any, are provided in
ADDENDUM I.
IN WITNESS WHEREOF, Owner and Xxxxxx have executed this Lease as of the
Lease date.
OWNER: TENANT:
SKY HARBOR ASSOCIATES LIMITED PARTNERSHIP ACI SYSTEMS, INC.
------------------------------
By: Xxxxxxx Investment By: /s/ Xxxxx Xxxxxx
Corporation, General Partner --------------------------
Xxxxx Xxxxxx
Its: President
By: --------------------------
-----------------------------------
Xxxxxx Xxxxxxx
Its:
-------------------------------
RIDER I
This Rider to Lease is attached to and forms a part of that certain lease
between SKY HARBOR ASSOCIATES LIMITED PARTNERSHIP ("Owner") and ACI SYSTEMS,
INC.,* ("Tenant") dated as of the _______ day of OCTOBER, 1993 (the "Lease"),
and sets forth additional terms and provisions to be incorporated into the
Lease.
* a Colorado corporation
ADDITIONAL RENT. It is expressly agreed that Tenant will pay in addition
to the Base Rent, Additional Rent, herein defined as those items enumerated
in this Rider.
X. Xxxxxx shall pay to Owner as Additional Rental commencing with
the First Operating Cost Year (as said term is hereinafter defined), and for
each Subsequent Operating Cost Year thereafter an amount equal to Tenant's
Project Proportionate Share (as said term in hereinbefore defined) of the
total aggregate of Operating Costs (as said term is hereinafter defined) of
said Operating Cost Year.
B. The term "Operating Costs" means the total amounts paid or
payable, whether by Owner or otherwise on behalf of Owner, in connection with
the ownership, management, maintenance, repair and operation of the Building,
including by way of illustration and not a limitation, and without limiting
the generality of the foregoing, the aggregate of the amounts paid or payable
for: (i) all electricity furnished to the Building except those amounts paid
directly by Tenant or tenants; (ii) the amount paid or payable for all water
furnished to the Building other than those amounts paid directly by Tenant or
tenants; (iii) labor and or wages and other payments made by Owner in the
operation, maintenance and repair of the Building, including, without
limitation, the cost to Owner of xxxxxxx'x compensation and disability
insurance, payroll taxes, and contributions to any social security,
unemployment insurance, welfare, pension or similar fund and payments for
other fringe benefits made to or on behalf of all employees of Owner
performing services rendered in connection with the operation and maintenance
of the Building, including, without limitation, porters, janitors, handymen,
watchmen, persons engaged in patrolling and protection the Building,
carpenters, engineers, mechanics, electricians, plumbers, building manager,
clerical and administrative personnel, contractors, subcontractors (It is
understood that Owner is under no obligation to have employed any or all of
such above-referred to employees.); (iv) the total charges of any independent
contractors employed in the repair, care, operation, maintenance and cleaning
of the Building; (v) the cost of replacements for tools and equipment used in
the operation and maintenance of the Building, including without limitation
electric light bulbs, tubes and ballasts used in connection with Building
Common Areas and parking lots; (vi) the cost of telephone service, postage,
office supplies, maintenance and repair of office equipment and similar costs
related to operation of the Building and manager's office (whether in the
Building or not); (vii) the cost of licenses, permits and similar fees and
charges related to the operation, repair, maintenance of the Building (viii)
the cost of maintenance of parking areas and driveways, including, but not
limited to cleaning, snow removal, repaving, relining and repainting; (ix)
cleaning cost for the Building, including the windows, sidewalks, all snow
removal (including separate contracts therefore) and the cost of all labor,
supplies, equipment and materials incidental thereto; (x) the cost of
premiums and other charges incurred by Owner with respect to all insurance
relating to the Building and the operation and maintenance thereof,
including without limitation, fire and extended coverage insurance, including
windstorm, hail, explosion, riot, rioting attending a strike, civil
commotion, aircraft, vehicle and smoke insurance, public liability, elevator,
xxxxxxx'x compensation, boiler and machinery, rent, use and occupancy, and
health, accident and group life insurance of all employees; (xi) the cost of
sales and excise taxes and the like upon any of the expenses enumerated
herein; (xii) the cost of decorating, repainting or otherwise maintaining the
exterior of the Building; (xiii) the cost of auditing fees necessarily
incurred in connection with the maintenance and operation of the Building and
accounting fees incurred in connection with the preparation and certification
of the real estate tax escalation and the operation expense escalation
statements pursuant to this Rider; (xiv) fees for legal, inspection,
accounting and consulting services; (xv) all costs incurred by Owner to
retrofit any portion or all of the Building to comply with change in existing
legislation or introduction of new
legislation, whether federal, state or municipal, state, county or municipal
(including any agency or arm of said governmental unit; (xvi) the cost of
repairs, replacements and improvements which are appropriate for the
continued operation of the Building; (xvii) all expenses associated with the
installation of any energy, cost or labor saving devices; (xviii) costs of
all landscaping; (xix) costs of any security guards or security; (xx) any and
all other expenditures of Owner in connection with the operation, repair or
maintenance of a Building which are properly expensed in accordance with
generally accepted accounting principles consistently applied with respect to
the operation and repair and maintenance of comparable buildings in the
southern Metro Denver Area. The above enumeration of any Operating cost shall
not create any obligation (express or implied) on the part of Owner to
furnish such service.
If Owner shall purchase any item of capital equipment or make any
capital expenditure as described in (xv), (xvi), or (xvii) above, then the
cost for the same shall be included in operating expenses in the year of
installation and in subsequent years amortized in accordance with generally
accepted accounting principles. If Owner shall lease such item of capital
equipment, then the rentals or other operating costs paid pursuant to such
leasing shall be included in operating expenses for each year in which they
are incurred.
In addition, Operating Cost shall also include all Real Estate
Taxes. The term Real Estate Taxes includes, without limitation, general and
special taxes, assessments, duties and levies, charged and levied upon or
assessed against the Building, the land upon which it is located, and
improvements situated on the real property, any leasehold improvements,
fixtures, installations, additions and equipment used in the maintenance or
operation of the Building, whether owned by Owner or Tenant and not paid
directly by Tenant, including, without limitation, real estate taxes,
personal property taxes, general or special assessments, any duties or levies
charged or levied upon or assessed against the building and the property and
personal property transfer taxes, all costs and expenses (including legal
fees and court costs) charged for the protest or reduction of property taxes
or assessments in connection with the property and the Building, or any tax
or excise on rent or any other tax (however described) on account of rental
received for use and occupancy of any or all of the Building and the
property, whether any such taxes are imposed by the United States, the State
of Colorado, the County in which the Building is located, or any local
governmental municipality, authority or agency or any political subdivision
of any thereof. Real Estate Taxes shall not include franchise, gift, estate
or inheritance taxes. Further, if at any time during the Term the method of
taxation of real estate prevailing at the time of execution hereof shall be,
or has been, altered so as to cause the whole or any part of the taxes now or
hereafter levied, assessed or imposed on real estate to be levied assessed or
imposed upon Owner, wholly or partially as a capital levy or otherwise, or on
measured by the rents received, then such new or altered taxes attributable
to the Demised Premises shall be deemed to be included within the term Real
Estate Taxes for purposes of this paragraph, save and except that such shall
not be deemed to include any increase in said tax not attributable to the
Building. Furthermore, if at any time during the term hereof a tax or excise
on rents or income or other tax however described (herein called Rent Tax) is
levied or assessed by the State of Colorado, or any political subdivision
thereof, on account of the rents hereunder of the interest of Owner under
this Lease, such Rent Tax shall constitute Real Estate Taxes, provided,
further, in no event shall Tenant be obligated to (i) pay for any year any
greater amount by any of such Rent Tax than would have been payable by Xxxxxx
had the rentals paid to the Owner under all Building leases (being the
rentals upon which such Rent Tax is imposed) been the sole taxable income of
Owner for the year in question or (ii) to pay or to reimburse Owner for any
tax of any kind assessed against Owner on account of any such rent Tax having
been reimbursed.
Operating costs shall not include (1) leasing commissions,
advertising expenses and other costs incurred in leasing or procuring new
Tenant; (2) the cost of any capital addition made to the Building, including
the cost to prepare space for occupancy by a new Tenant; (3) depreciation and
amortization of the Building, other than (a) capital expenditures which under
generally applied real estate practices are expensed or regarded as deferred
expenses; (b) capital expenditures appropriate to a building comparable to
this in the southern Metro Denver Area or required by law as described in
(xv) and (xvi) above; and (c) capital expenditures designed to result in
savings or reductions in operating expenses as described in (xvii) above; (4)
interest and principal payments on mortgages and other debt costs; (5) Any
cost or expenditure (or portion thereof) for which Owner is reimbursed,
whether by insurance proceeds or otherwise (Base Rent adjustments under any
provision of this Rider and under similar provisions and other Tenant leases
are not reimbursements); and (6) cost of any service
furnished to any other occupant of the Building which Owner does not provide
to Tenant hereunder.
In the event during all or any portion of any calendar year the
Building is not fully rented and occupied, Owner may elect to make an
appropriate adjustment of Operating Costs for such year, employing sound
accounting and management principles, to determine the Operating Cost that
would have been paid or incurred by Owner had the Building been fully rented
and occupied and the amount so determined shall be deemed to have been the
Operating Costs for such year. If Owner selects an accrual accounting basis
rather than a cash accounting basis for operating expenses purposes,
operating expenses shall be deemed to have been paid when such expenses have
accrued.
All references to "Building" in this Rider shall include all other
Buildings in the Project (as defined in Basis Lease Provisions) and all
related facilities, including without limitation, corridors, lobbies,
sidewalks, grounds, parking spaces, driveway areas, elevators and other
common or public areas contained in or around the real estate as well as
landscaping, exterior walkways, and improvements or facility utilized in
common by the Building (and other Buildings of the projects upon or adjacent
to the real property). It is the express intent of the parties that all
Operating Costs be determined on the Project level, rather than at an
individual Building level.
(i) First Operating Cost Year is as defined in Basis Lease
Provisions.
(ii) Subsequent Operating Cost Year means each twelve month
calendar period following the First Operating Cost Year, the whole or any
part of which full period is included within the Term.
(iii) The Amount of Operating Costs for any period shall be the
amount as determined by the Owner in accordance with generally accepted
accounting principles.
C. If only part of the Term is included within any Operating Cost
Year, then such amount payable by Tenant for such Operating Cost Year shall
be estimated by Owner acting reasonably and reduced proportionately on a per
diem basis and shall be payable according to the terms and conditions in
subparagraph D. below.
D. Any additional Rent payable by Tenant under this Rider shall be
payable as follows, unless otherwise provided;
During the Term, Tenant shall pay to owner monthly in advance and
every month during the Term, one-twelfth (1/12th) of the amount of such
Additional Rent as estimated by Owner, from time to time, in advance, acting
reasonably, to be due from Tenant. Within a reasonable time after the close
of each calendar year, Owner shall give Tenant a statement of the year's
Operating Costs and the total amount of the Additional Rent, if any. If such
year's Operating Cost is different than the estimated amount paid by Xxxxxx,
Tenant shall pay Owner or Owner shall credit Tenant, as applicable, within 30
days of the date of the Statement, Tenant's proportionate share which has
either (i) not be paid by Tenant or (ii) overpaid by Tenant pursuant to an
estimate. One-twelfth of the amount of Additional Rent, as reasonably
estimated by Owner, for the First Operating Cost Year, to be paid by Tenant
with each month's Base Rent as Additional Rent shall be as stated in Basic
Lease Provisions as "Initial Monthly Estimated Additional Rent". This amount
shall be paid monthly until such time as Owner, in writing, reasonably
adjusts the estimated Additional Rent pursuant to the first sentence of this
paragraph.
For purposes of calculating Additional Rent, Xxxxxx's proportionate
share of the total shall be deemed to be as set forth in paragraph F. below.
E. For the protection of Tenant, Owner shall maintain books of account
which shall be open to Tenant and its representatives for thirty days after
billing for Additional Rent, at all reasonable times so that Tenant can
determine that such Additional Rent costs have, in fact, been paid or
incurred. Tenant shall have the right to contest or question the amount and
the appropriateness of the Operating Cost and Additional Rent for a period of
thirty (30) days after the billing for Additional Rent. If Xxxxxx does not so
contest or question within said thirty (30) day period, then all the
determinations by Owner shall be conclusive.
Page 3 of 4
F. TENANT'S PROJECT PROPORTIONATE SHARE is as defined in Basic Lease
Provisions.
G. Except as otherwise expressly provided in the Lease, the parties
agree that Owner shall have no obligation of any kind to make any
expenditures upon or with respect to the Premises. It is intended that Tenant
shall throughout the term, at its sole expense, maintain in good condition,
repair and order all of the Premises and all parts thereof and shall pay to
Owner Additional Rent as stated in this Rider X.
XXXXX XX
This Rider to Lease is attached to and forms a part of that certain lease
between SKY HARBOR ASSOCIATES LIMITED PARTNERSHIP ("Owner") and ACI SYSTEMS,
INC.,* ("Tenant") dated as of the _______ day of October 1993 (the "Lease"),
and sets forth additional terms and provisions to be incorporated into the
Lease.
* a Colorado corporation
BUILDING SERVICES AND UTILITIES
(a) Subject to the limitation herein set forth. Owner will furnish
Tenant while occupying the Premises and while Tenant is not in default under
this lease:
(i) water to the wall stub of the Premises;
(ii) snow removal and snow plowing of all common areas of the
Building and Project;
(iii) cleaning and maintenance of driveways and parking areas of
the Project;
(iv) trash and refuse removal;
(v) maintenance and repair of all building standard
air-conditioning and heating apparatus.
In addition, Owner will maintain the public and common areas of the
Building and Project, such as walkways, stairs, and landscaping, if any, in
reasonable good order and condition, except for damage occasioned by Tenant
or Tenant's parties.
(b) UTILITIES. Owner shall have the option to have: (i) Tenant pay
promptly all charges for heating, natural gas and electrical service used on
the Premises directly to the appropriate public utility company. If Tenant
shall fail to pay any utilities as required above, Owner shall have the
right, at his option, but without any obligation to do so, to pay such
utilities (without affecting any other remedy available to Owner) on account
of Tenant and the same shall constitute Additional Rent hereunder and shall
be repaid by Tenant to Owner forthwith; or (ii) Tenant pay all charges for
heating, natural gas and electrical service used on the Premises as
Additional Rent pursuant to Rider I. Owner shall make an election pursuant
to this paragraph from time to time, by 30 day notice to Xxxxxx. Owner may
elect to have certain utilities paid pursuant to (i) above and to have other
utilities paid pursuant to (ii) above. If Owner makes no written election,
then all utilities that are separately metered shall be paid pursuant to (i)
above and all items that are not separately metered shall be paid pursuant to
(ii) above.
Notwithstanding the above, Tenant covenants and agrees that at all times
its use of electric current shall never exceed the capacity of the existing
feeders to the Building or the risers or wiring installations. Any risers or
wiring to meet Tenant's excess electrical requirements will be installed by
Owner at the sole cost and expense of Tenant (if, in Owner's sole judgement,
the same are necessary and will not cause permanent damage or injury to the
Building or the Premises or cause or create a dangerous or hazardous
condition or entail excessive or unreasonable alterations, repairs or expense
or interfere with or disturb other tenants or occupants).
If initially Tenant is paying all or any public utilities pursuant to
(ii) above, Owner may at its option, upon not less than 30 days prior written
notice to Tenant discontinue the availability of such utility service. If
Owner gives any such notice of discontinuance, Owner shall make all necessary
arrangements with the public utility supplying the utilities to the area in
which the Building is located with respect to obtaining such utility service
to the Premises, but Tenant will contract directly with such public utility
for the supplying of such utility service to the Premises. In the event
Owner deems it appropriate to make available separately metered service to
the Premises, Owner may require that separate submeters be installed in or
for the Premises, at Owner's expense, and Tenant will be billed monthly from
such sub-meter in a
manner provided hereinbefore, provided that no such sub-metering shall
relieve Tenant from its obligation to pay Tenant's share of other utility
charges under this paragraph.
Owner shall not in any way be liable or responsible to Tenant for any
loss or damage or expense which Tenant may sustain or incur if either the
quantity or character of any utility service is changed or no longer
available or is no longer suitable for Tenant's requirements.
(c) Failure to any extent to make available, or any slow-down, stoppage
or interruption of, these defined services resulting from any cause
(including, but not limited to, Owner's compliance with (i) any voluntary or
similar governmental or business guideline now or hereafter published or (ii)
any requirements now or hereafter established by any governmental agency,
board or bureau having jurisdiction over the operation and maintenance of the
Building) shall not render Owner liable in any respect for damages to either
person, property or business, nor be construed as an eviction of Tenant or
work an abatement of rent, nor relieve Xxxxxx from fulfillment of any
covenant or agreement hereof. Should any equipment or machinery which Owner
is obligated to maintain and repair pursuant to this Lease break down or for
any reason cease to function properly, Owner shall use reasonable diligence
to repair same promptly, but Tenant shall have no claim for abatement of rent
or damages on account of any interruptions in service occasioned thereby or
resulting therefrom.
(d) Notwithstanding any termination of this Lease prior to the Ending
Date of Term, tenant's obligations to pay any and all Rent pursuant to this
Rider shall continue and shall cover all periods up to the acrual expiration
date of the Term; provided, however, if Owner terminates this Lease without
waiving Owner's right to seek damages against Tenant, Xxxxxx's obligation to
pay any and all Rent pursuant to this Rider shall not terminate as a result
thereof.
(e) TRASH AND REFUSE REMOVAL. If Owner determines, in its sole
discretion, that Owner provides Tenant with more than normal and ordinary
Trash and Refuse Removal ("Excess Removal"), then Owner shall have the option
to i) charge Tenant, as Additional Rent, an amount for such Excess Removal
(Owner's determination of such amount shall be binding on the parties), or
ii) cease providing Tenant with Trash and Refuse Removal.
Page 2 of 2
EXHIBIT A-1
DESCRIPTION OF LAND
Building B, Block 1, Linpro Araphoe Land Limited, County of Arapahoe, Colorado
EXHIBIT B
RULES AND REGULATIONS
1. SIGNS
A. No sign, advertisement, notice, placard, picture, name or other
lettering shall be exhibited, inscribed, printed displayed or affixed on or
to any part of the inside or outside of the Demised Premises of the Building
without the prior written consent of Owner. Owner shall have the right to
remove any such sign, advertisement, notice, placard, picture, logo, name or
other lettering without notice and at the expense of Tenant.
B. All approved signs or lettering on doors shall be printed, painted,
affixed or inscribed at the expense of Tenant by a person selected by Owner.
2. SIDEWALKS, OBSTRUCTIONS. The sidewalks, halls, entrances, exists,
passages, stairways and elevators of the Building shall not be obstructed by
Tenant, its agents or employees, nor shall they be used for any purpose other
than ingress and egress to and from the Premises. The halls, passages,
entrances, exits, stairways, elevators, balconies and roof are not for the
use of the general public, and Owner shall in all cases retain the right to
control and prevent access thereto by all persons whose presence in the
judgment of Owner might be prejudicial to the safety, reputation and
interests of the Building and its tenants, provided that nothing herein
contained shall be construed to prevent such access to persons with whom
Tenant normally deals in the ordinary course of Tenant's business, unless
such persons are engaged in illegal activities. No tenant and no employees
or invitees of any tenant shall go upon the roof of the Building.
3. LOCKS. Tenant shall not alter any lock or install any new or place
additional locks or any bolts or mail slots on any door, wall or window of
the Premises without the prior written consent of Owner.
4. KEYS. All keys to the Building, Premises, rooms and toilet rooms
shall be and remain the property of Owner and shall be obtained from Owner's
Building Management Office, and Tenant shall not from any other source
duplicate, obtain keys or have keys made. Tenant, upon termination of the
tenancy, shall deliver to Owner all keys to the Building, Premises, rooms and
toilet rooms that have been furnished or shall pay the Owner the cost of
replacing same or of changing the lock or locks opened by such lost key(s) if
Owner deems it necessary to make such change.
5. WATER FIXTURES. The toilet rooms, urinals, wash bowls, drinking
fountains and other apparatus shall not be used for any purposes other than
that for which they were constructed, and no foreign substance of any kind
whatsoever shall be thrown therein. The expense of any breakage, stoppage or
damage resulting from the violation of this rule shall be borne by the tenant
who, or whose employees or invitees, shall have caused it. No person shall
waste water by leaving faucets open or in any other manner.
6. FLOOR LOADING. Tenant shall not overload the floor of the Premises.
Owner shall prescribe, after consultation with the appropriate architects and
engineers, the floor loading permissible.
7. ALTERATIONS. In addition to the provisions of the Lease. Tenant
shall not mark, paint, drill into, drive nails or screw into or in any way
deface or change any part of the Premises or the Building. Owner will direct
electricians as to where electric and telephone wires are to be introduced.
No boring, cutting or stringing of wires will be allowed except as approved
and directed by Owner. The locations of telephones, call boxes and other
office equipment affixed to the Premises shall be subject to the approval of
Owner. Owner shall permit reasonable numbers of picture hangers and other
reasonable attachments to be made to walls, floors and ceilings.
8. FLOOR COVERINGS. The only floor coverings shall be the building
standard carpet, or such other covering(s) as Owner may approve in writing.
The expense of repairing any damage resulting form tenant's violation of this
rule or from removal of any floor covering shall be borne by the tenant by
whom, or by whose contractors, employees or invitees, the damagee shall have
been caused.
9. DISTURBANCES AND USE.
A. Tenant shall not use, keep or permit to be used or kept any food
(other than that to be kept in reasonable amounts for the consumption by its
own employees and all of that to be kept in tightly sealed containers and/or
in a refrigerator) or noxious gas or substance in the Premises, or permit or
suffer the Premises to be occupied or used in a manner offensive or
objectionable to Owner or to other occupants of the Building by reason of
noise, odors and/or vibrations, or interfere in any way with other tenants or
those having business therein.
B. Only incidental cooking for the use of Tenant may be done on the
Premises, and that only using equipment and in a place within the Premises
specifically authorized in writing by Owner, and in a way so that no odors of
food are observed by other occupants of the Building.
C. No vending or machines of any description may be installed,
maintained or operated in the Premises without the written consent of Owner.
D. No animals or birds may be brought in or kept in or about the
Premises or the Building.
E. No tenant, employee or invitee of any tenant shall make or permit to
be made any unseemly or disturbing noises or disturb or interfere with
occupants of this or neighboring buildings or Premises or those having
business with them whether by use of any musical instrument, radio,
phonograph, unusual noise, or in any other way.
F. No tenant, employee or invitee of any tenant shall throw anything
out of doors or down any passageway, any stairway, elevator shaft or
ventilating duct or shaft of the Building.
G. Tenant shall not disturb, solicit, peddle or canvass any occupancy
of the building and shall cooperate to prevent same.
X. Xxxxxx shall be responsible for keeping any children visiting or
accompanying anyone visiting the Premises under control an quiet so that they
do not disturb other occupants of the Building.
I. Tenant shall not use the Premises for any purpose other than that
described in the Lease, for manufacturing, for the storage of merchandise,
except as such storage may be incidental to the use of the Premises for the
purpose(s) described in the Lease, for washing clothes, for lodging or for
illegal, improper, immoral or objectionable purpose.
X. Xxxxxx shall not advertise for laborers giving an address at the
Building or Premises.
10. FIRE AND OTHER GOVERNMENTAL REGULATIONS. Tenant shall not do or
permit anything to be done in the Premises, or bring or keep anything
therein, which will in any way increase the fire insurance rates on the
building or on the property kept therin; or obstruct or interfere with the
rights of other tenants, or in any way injure or annoy them or conflict with
the laws relating to fire, or with any regulations of the fire department, or
with any insurance policy upon the Building or any part thereof or conflict
with any of the rules or ordinances of the governmental jurisdictions in
which the Building lies.
X. Xxxxxx agrees that it will comply with all fire and security
regulations that may be issued from time to time by Owner, and Xxxxxx also
shall provide Owner with the name of a designated employee responsible to
represent Tenant in all matters pertaining to such fire or security
regulations.
B. Tenant shall not use or keep in the Premises any gasoline,
kerosene or inflammable, combustible, or explosive fluid or material, other
than nominal amounts of ordinary office fluids to be used for duplicating or
photocopying machines or other, similar office equipment.
C. Tenant shall not use any method of heating or air conditioning
other than that supplied by Owner.
D. Tenant shall install and properly maintain, at Tenant's sole
cost and expense, an adequate, visibly marked and at all times properly
operational fire extinguisher next to any duplicating or photocopying machine
or any cooking device or any similar heat-producing equipment which may or
may not contain combustible material in the Premises.
11. LEAVING THE PREMISES. Tenant shall see that the doors of the
Premises are closed and securely locked before leaving the Building and must
observe strict care and caution that all water faucets or other water
apparatus in the Premises are entirely shut off before Tenant leaves the
Building, and that all unnecessary electricity shall likewise be carefully
shut off, so as to prevent waste or damage. For any default or carelessness,
Tenant shall make good all injuries sustained by Tenant, by other tenants or
occupants of the Building.
All doors opening to public corridors shall be kept closed except
for normal ingress and egress from the Premises.
12. OBJECTIONABLE BUILDING OCCUPANTS. Owner reserves the right to
exclude or expel from the Building any person who, in the judgement of Owner,
appears intoxicated or under the influence of alcohol or drugs, or who shall
in any manner do any act in violation of any of the rules and regulations of
the Building.
13. PAINTING AND DECORATING. All painting and decorating in the
Premises must be agreed to in writing and in advance by Owner. Any such work
as may be agreed to be done by and at the expense of Owner shall be done
during regular working hours. Should Tenant desire such work to be done
outside of regular working hours, Tenant shall pay the extra cost thereof.
14. WINDOW COVERINGS. No curtains, blinds, shades, draperies, screens
or other materials shall be attached to, hung in or used in connection with
any window or sidelight of the Premises other than those supplied by or
otherwise agreed to by Owner.
A. The sashes, sash doors, skylights, windows and sidelights that
reflect or admit light or air into the halls, passageways or other public
places in the Building shall not be covered or obstructed by Tenant.
B. Tenant shall not place anything or allow anything to be placed
near the glass of any window, skylights, door, partition or wall which may,
in the sole opinion of Owner, appear unsightly from outside the Premises.
15. LIGHT FIXTURES. No electrical fixtures shall be hung or otherwise
installed in the Premises other than those supplied by or otherwise agreed to
by Owner.
16. SHOW CASES. No show case or other articles shall be put in front
of or affixed to any part of the exterior of the Building, nor placed in
public portions thereof.
17. INFESTATION. If the Premises is or becomes infested with vermin as
a result of the use or any misuse or neglect of Premises by Tenant, Owner
shall forthwith at Tenant's sole cost and expense cause the same to be
exterminated from time to time to the satisfaction of Owner.
18. TENANT'S CONTRACTORS. Tenant's contractor(s) (any of which shall
be subject to the prior written approval of Owner) shall, while in the
Building or elsewhere on the Property, be subject to and under the control
and direction of Owner or Owner's agent(s) but said contractor(s) shall not
be the agent or servant of Owner or Owner's agent(s).
19. TENANT'S NEEDS. The requirements of Tenant will be attended to
only upon application at the office of the Building. Owner's employees shall
not perform any work or do anything outside of their regular duties unless
under special instructions from Owner.
20. ADVERTISING. Without the prior written consent of Owner, Tenant
shall not use the name of the Building nor any picture of the Building in
connection with or in promoting or advertising the business of Tenant, or on
its stationery or in any other manner except as Xxxxxx's address.
21. BUILDING NAME. Owner shall have the right, exercisable without
notice and without liability to Tenant, to change the name and the street
address of the Building.
22. GOVERNMENT REGULATIONS. If, as a result of any governmental rule
or regulation, Owner imposes a curtailment of services or equipment in
Premises or the Building, Tenant shall comply therewith and shall be liable
to Owner for any surcharge imposed for any violation by Xxxxxx.
23. OUTSIDE SERVICES. No tenant shall obtain for use in the Premises
towel or other similar service or accept barbering, boot-blacking or other
similar services on the Premises, except from persons authorized by the Owner
and at the hours and under regulations fixed by the Owner.
24. BUILDING OPERATION. Owner shall have the right to control and
operate the public portions and the public facilities of the Building and the
heating and air conditioning, as well as facilities furnished for the common
use of the tenants, in such manner as it deems best for the benefit of the
tenants generally.
25. PARKING.
A. Tenant shall not park any vehicles in any driveways, service
entrances or areas posted either as "No Parking" or as "Visitor Parking".
B. Tenant shall not park any vehicles in any parking space
designated for handicapped parking unless such vehicle bears a current
handicapped license plate or windshield placard.
C. Tenant shall not park in such a manner as to occupy more than
one parking space per vehicle, except in such case where a delivery vehicle
too large for one space is parked for the purpose of making a specific
delivery to or pickup from the Premises.
26. DEFINITIONS. For the purposes of the Rules and Regulations, in
every case where the work "Tenant" is used, it shall be deemed to mean the
Tenant, its employees, agents, servants, contractors, licensees, visitors,
delivery people and invitees.
27. RULE WAIVER. Owner reserves the right by written notice to Tenant
to rescind, alter, waiver or add any rule or regulations prescribed for the
Building at any time when, in Owner's sole judgment, it is necessary,
desirable or proper for the best interest of the Building and its tenants.
ADDENDUM NO. 1
TO
LEASE AGREEMENT
BY AND BETWEEN SKY HARBOR ASSOCIATES LIMITED PARTNERSHIP
AS OWNER
AND
This Addendum No. 1 to one certain Lease Agreement dated October __, 1993 by
and between Sky Harbor Associates Limited Partnership as Owner and ACI
SYSTEMS, INC., a Colorado corporation as Tenant is entered into this ____
day of October, 1993 by and between Sky Harbor Associates Limited
Partnership as Owner and ACI SYSTEMS, INC. as Tenant. For and in
consideration of the mutual covenants herein contained and contained in the
Lease Agreement, the parties do hereby agree as follows:
1. Base Rent: Monthly Base Rental for years one through five is as
follows:
BASE RENT MONTHLY
YEAR PER SQ. FT. BASE RENT INSTALLMENT
---- ----------- ---------- -----------
1 $5.00 $13,310.00 $1,109.17
2 $5.00 $13,310.00 $1,109.17
3 $5.25 $13,975.50 $1,164.63
4 $5.25 $13,975.50 $1,164.63
5 $5.50 $14,641.00 $1,220.08
2. Commencement Date: Notwithstanding anything in the Lease to the
contrary, the Commencement Date of the Lease shall be the date upon which
Xxxxxx takes occupancy of the Premises, which is estimated to be November 30,
1993.
3. Owner's Tenant Finish: Owner shall construct the tenant
improvements in accordance with Exhibit A-3.
4. Construction Drawings: Owner has at Owner's expense prepared
Construction Drawings for the construction of the Tenant Improvements which
shall be submitted to Tenant. Tenant shall indicate his approval of same by
causing the signatures of one or more of Tenant's agents or employees to be
affixed to each page of the Drawings. The Construction Drawings conform to
the requirements of Exhibit A-3 of the Lease. In the event of a conflict
between the Construction Drawings and the Lease or this Addendum No.1, then
the Lease and this Addendum No. 1 shall prevail.
5. Environmental Compliance:
(a) All operations and activities to be conducted by Tenant at the
Premises are described in Basic Lease Provision of the Lease. Xxxxxx agrees
that Tenant will not conduct any operations or activities not specifically
described in Basic Lease Provisions at the Premises without the prior
specific written consent of Owner.
(b) All operations and activities of Tenant on the Premises will
comply with all applicable federal, state and local environmental laws and
regulations and shall be conducted in a manner which will not give rise to
any environmental hazard or claim. Operations and activities of Tenant
involving the handling, storage, disposal or transportation to and from the
Premises of hazardous materials, substances and/or waste (hereinafter
"hazardous materials") shall be conducted in accordance with all applicable
laws and regulations and in a manner so as to prevent any releases of
hazardous materials.
(c) As used herein, "Environmental Cleanup Liability" shall mean
any liability, loss, cost, expense, find or penalty of any nature incurred
or imposed by any authority as a result of the necessity to contain,
dispose, remove, treat, remedy or xxxxx any air, soil, groundwater or other
contamination on or off the Premises and on or off the property of which the
Premises are a part, only to the extent arising from Tenant's acts or
omissions in the storage, disposal or transportation of chemicals or other
products of Tenant on or to the Premises including but not limited to:
(a) costs or expenses for investigation, study, assessment, legal
representation, cost recovery by government agency, or monitoring of such
contamination; and (b) cost, expense, loss or damage incurred as a result of
actions or measures necessary to implement effectuate any containment,
removal, disposal, treatment, remediation, cleanup or abatement of such
contamination.
(d) Xxxxxx agrees to protect, defend, indemnify and hold Owner
harmless from any Environmental Cleanup Liability to the extent that such
liability arises from the operations, acts or omissions of Tenant on the
Premises including but no limited to Tenant's disposal from the Premises or
transportation of hazardous materials to or from the Premises. This agreement
of Tenant to protect, defend, indemnify and hold Owner harmless shall extend
to all acts or omissions of Tenant and shall not be limited to negligent or
wrongful acts or omissions of Tenant.
(e) The obligations of this Section 5 shall survive the termination
of this lease.
6. Change in Regulations: Tenant and Owner acknowledge and agree that
if at any time during the term of the Lease the rules and regulations of the
Uniform Building Code or the Uniform Fire Code pertaining to hazardous
materials change so as to require an additional investment in ire protection
equipment in the Premises then such additional investment shall be the
obligation of Tenant, provided however that such additional investment shall
not be required as a result of any action of Owner with respect to the
Premises, the Building or the Project.
7. Tenant shall have the obligation to conduct an inspection of the
Premises with Owner and its representatives within fourteen (14) days after
substantial completion of the Tenant Finish and to give Owner, within said
fourteen day period, a punch list of all items to be completed and/or
corrected. Any items not on such punch list shall be deemed accepted by
Tenant, except for latent defects which exception shall be effective for
one (1) year following the Commencement Date (unless such defect or
subsequent damage was caused by tenant or its agents, employees, invitees,
contractors or suppliers). Owner shall correct any punch list items after
receipt of said punch list.
8. Owner's Default: Notwithstanding any other provisions of this Lease,
if default shall be made by Owner in the performance of the agreements,
conditions or covenants of this Lease to be performed by Owner, and said
default shall have continued for thirty (30) days after written notice
thereof to Owner or if such default cannot be cured within such thirty (30)
day period if Owner shall have failed to commence and diligently pursue such
cure, then Tenant in addition to all other remedies now or hereafter provided
by law, may at its election, perform such covenant or agreement for or on
behalf of Owner, or make good any such default, and any amount or amounts
which Tenant shall advance pursuant thereto shall be repaid by Owner to
Tenant on demand.
9. Utilities Interruption: Owner agrees to use reasonable efforts to
remedy any situation (other than caused by Xxxxxx) which gives rise to
interruption or failure to furnish any utility services. Additionally, if
the Premises are rendered untenantable or inaccessible due to interruption of
service attributable solely to Owner's fault, rent shall be abated for the
period of such untenantability.
10. Save and except the foregoing provisions, all other paragraphs and
covenants of the Lease Agreement, Riders and Exhibits shall remain in full
force and effect as therein stated. In the event of a conflict between the
provisions of this Addendum No. 1 and the Lease Agreement or its Riders
and/or Exhibits, then the provisions of this Addendum No. 1 shall prevail.
11. The Lease Agreement, Riders, Exhibits and this Addendum No. 1 may
only be modified in a writing executed by both parties.
Dated as of the ____day of October, 1993.
OWNER: TENANT:
SKY HARBOR ASSOCIATES LIMITED ACI SYSTEMS, INC.,
PARTBERSHIP a Colorado corporation
By: Xxxxxxx Investment By: _______________________________
Corporation, General Partner Xxxxx Xxxxxx
Its: _____________________________
By: ____________________________ President
Xxxxxx Xxxxxxx
Its: _______________________
Vice President
12. FREE RENT: Xxxxxx's initial two (2) month's Base Rent shall be abated.
Lessee will only be responsible for its share of operating expenses during
this free rent period.
13. TENANT IMPROVEMENT: Lessor agrees to provide building-standard carpet
and paint throughout the space and make all other improvements to the
premises as shown on the attached Exhibit "C" dated September 17, 1993.
14. EARLY OCCUPANCY: Lessee will be given access to the adjacent 2,000
square foot unit for their temporary use at no additional cost while their
space is being completed.
15. EARLY TERMINATION: Lessee will be given the option to terminate the
lease after the initial three (3) years of the term provided Lessee gives
Lessor four (4) months prior written notice and pays a penalty fee of
$10,000.00, which shall be due upon the expiration of the third year of the
lease term.
16. MOVING ALLOWANCE: Lessee will be given an allowance of $250.00 for
moving expenses from the temporary space to the primary space.
17. EXPANSION: Lessee will be given a second or junior
right-of-first-refusal behind Xxxxxxxx Medical, Inc. on the adjacent 2,000
square foot space immediately east of the primary space. Lessee must give
written notice to Lessor of its intent to exercise its right-of-first-refusal
on or before ten (10) days after receipt of written notice from Lessor of a
bona-fide third party offer to lease the subject space. Should Xxxxxxxx
Medical, Inc. default on their existing lease, Xxxxxx's second position will
become first position.
18. SIGNAGE: Lessor agrees to provide for Lessee the cost and installation
of the monument sign lettering at the entrance to the park and the plain
standard sign at the unit. Lessee will be responsible for the cost of
lettering applied to the standard sign and windows at the unit.
19. RENEWAL OPTION: Lessee will be given one (1) three (3) year option to
renew the Lease. The lease rate will be based on current market rents for
similar space at that time. Lessee must exercise its option to renew three
(3) months prior to the expiration of the lease term.
GUARANTY
Annexed to and forming a part of Lease dated April 30, 1993, by and between
SKY HARBOR ASSOCIATES LIMITED PARTNERSHIP, a Michigan limited partnership, as
Lessor, and CODY DISTRIBUTION, INC., a Colorado corporation, as Lessee.
The undersigned, Xxxxx Xxxxxx, an individual, whose address is
___________________________________________ in consideration of the leasing
of the leased premises described in the annexed Lease ("Lease") to the above
named Lessee ("Lessee"), does hereby covenant and agree as follows:
A. The undersigned does hereby guarantee the full, faithful and timely
payment and performance by Xxxxxx of all of the payments, covenants and other
obligations of Lessee under or pursuant to the Lease. If Xxxxxx shall default
at any time in the payment of any rent or any other sums, costs, or charges
whatsoever, or in the performance of any of the covenants and obligations of
Lessee, under or pursuant to the Lease, then the undersigned, at its expense,
shall on demand of said Lessor ("Lessor") fully and promptly, and well and
truly, pay all rent, sums, costs and charges to be paid by Xxxxxx, and
perform all the other covenants and obligations to be performed by Xxxxxx,
under or pursuant to the Lease, and in addition shall on Lessor's demand pay
to Lessor any and all sums due to Lessor, including (without limitation) all
interest on past due obligations of Lessee, costs advanced by Lessor, and
damages and all expenses (including reasonable attorneys' fees and litigation
costs), that may arise in consequence of Lessee's default. The undersigned
hereby waives all requirements of notice of the acceptance of this Guaranty
and all requirements of notice of breach or non-performance by Xxxxxx.
B. The obligations of the undersigned hereunder are independent of, and
may exceed, the obligations of Xxxxxx. A separate action or actions may, at
Xxxxxx's option, be brought and prosecuted against the undersigned, whether
or not any action is first or subsequently brought against Lessee, or whether
or not Lessee is joined in any such action, and the undersigned may be joined
in any action or proceeding commenced by Lessor against Lessee arising out
of, in connection with or based upon the Lease. The undersigned waives any
right to require Lessor to proceed against Lessee or pursue any other remedy
in Xxxxxx's power whatsoever, any right to complain or delay in the
enforcement of Lessor's rights under the Lease, and any demand by Lessor
and/or prior action by Lessor of any nature whatsoever against Lessee, or
otherwise.
C. This Guaranty shall remain and continue in full force and effect and
shall not be discharged in whole or in part notwithstanding (whether prior or
subsequent to the execution hereof) any alteration, renewal, extension,
modification, amendment or assignment of, or subletting, concession,
franchising, licensing or permitting under, the Lease; provided, however,
that in the event of an assignment of the Lease to an entity unrelated to the
Lessee or the undersigned, the obligations of the undersigned pursuant to the
terms of this Guaranty shall not extend beyond the expiration of the term of
the Lease during which such assignment shall occur. The undersigned hereby
waives notices of any of the foregoing, and agrees that the liability of the
undersigned hereunder shall be based upon the obligations of Lessee set forth
in the Lease as the same may be altered, renewed, extended, modified, amended
or assigned for the purpose ofthis Guaranty and the obligations and
liabilities of the undersigned hereunder, "Lessee" shall be deemed to include
any and all concessionaires, licensees, franchisees, department operators,
assignees, subtenants, permitees or others directly or indirectly operating
or conducting a business in or from the leased premises, as fully as if any
of the same were the named Lessee under the Lease.
D. The undersigned's obligations hereunder shall remain fully binding
although Lessor may have waived one or more defaults by Xxxxxx, extended the
time of performance by Xxxxxx, released, returned or misapplied other
collateral at any
time given as security for Lessee's obligations (including other guaranties)
and/or released Lessee from the performance of its obligations under the
Lease.
E. This Guaranty shall remain in full force and effect notwithstanding
the institution by or against Lessee, of bankruptcy, reorganization,
readjustment, receivership or insolvency proceedings of any nature, or the
disaffirmance of the Lease in any such proceedings or otherwise.
F. If this Guaranty is signed by more than one party, their obligations
shall be joint and several, and the release of one such gaurantors shall not
release any other of such guarantors.
G. This Guaranty shall be applicable to and binding upon the heirs,
executors, administrators, represntatives, successors and assigns of Lessor,
Lessee and the undersigned, Lessor may, without notice, assign this Guaranty
in whole or in part.
H. In the event that Lessor should institute any suit against
undersigned for violation of or to enforce any of the covenants or conditions
of this Guaranty or to enforce any right of Lessor hereunder, or should the
undersigned institute any suit against Lessor arising out of or in connection
with this Guaranty, or should either party institute a suit against the other
for a declaration of rights hereunder, or should either party intervene in
any suit in which the other is a party, to enforce or protect its interest or
rights hereunder, the prevailing party in any such suit shall be entitled to
the fees of its attorney(s) in the reasonable amount thereof, to be
determined by the court and taxed as a part of the costs therein.
I. The execution of this Guaranty prior to execution of the Lease shall
not invalidate this Guaranty or lessen the obligations of Guarantor(s)
hereunder.
J. This Guaranty shall terminate 24 months after the commencement date
of the Lease, assuming Lessee has not been in default during the 24 month
period.
IN WITNESS WHEREOF, the undersigned has executed this Guaranty this 3 day
of November, 1993.
WITNESSES:
WITNESSES:
___________________________________ By:______________________________
___________________________________ Its:_____________________________
