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Exhibit 10.6
STANDARD COMMERCIAL LEASE
ARTICLE 1.00 - BASIC LEASE TERMS
1.01 PARTIES. This lease agreement ("Lease") is entered into by and between
the following Landlord and Tenant:
Highland Square Center, Ltd., a Colorado limited partnership, ("Landlord")
Grafix Time Corporation, a New York corporation, DBA Carrera Golf, ("Tenant")
1.02 LEASED PREMISES. In consideration of the rents, terms, provisions
and covenants of this Lease, Landlord hereby leases, lets and demises to Tenant
the following described premises ("Leased Premises"), a part of Highland Square
Office/Showroom Complex, 0000-0000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx
00000 (the "Property"):
(Approximate Leasable Sq. Ft.) 2,624
(Name of Property) Highland Square
(Street address/suite no.) 0000 X. Xxxxx Xxxxxx, #000
(Xxxx, Xxxxx and Zip) Xxxxxxxxx, XX 00000
(See Exhibit "D" attached)
1.03 TERM. Subject to and upon the conditions set forth herein, the term
of this Lease shall commence May 1, 1998 (the "Commencement Date"), and shall
terminate 36 months thereafter.
1.04 BASE RENT AND SECURITY DEPOSIT. Base Rent is $* per month. Security
deposit is $5,900, payable upon execution of this Lease.
Annual Base Rent Monthly
per RSF Base Rent
---------------- ---------
Year 1 $8.50 $1.858.67
Year 2 $8.75 $1,913.33
Year 3 $9.00 $1,968.00
1.05 ADDRESSES.
Landlord's Address Tenant's Address Make Payments To
------------------ ---------------- ----------------
Highland Square Center, Ltd. Carrera Golf Highland Square #4
c/o Global Pacific Properties, Inc. 0000 X. Xxxxx Xx., #000 c/o Global Pacific Properties, Inc.
0000 X. Xxxxxxxx Xxxx, #000 Xxxxxxxxx, XX 00000 0000 X. Xxxxxxxx Xx., Xxx. 000
Xxxxxxxxx, Xxxxxxxx 00000 Xxxxxxxxx, XX 00000
1.06 PERMITTED USE. General and executive headquarters office and storage
of benign, non-toxic, non-hazardous inventory items only. No manufacturing or
regular assembly operations of any nature shall be conducted. Under no
circumstances shall any retail or telemarketing activities be conducted in, on
or about the Leased Premises.
1.07 EXPENSE STOP. $0.00
1.08 PARKING. Tenant shall have the right to use seven (7) surface,
striped, unreserved parking spaces for the primary Term hereof, and no other
parking rights. Tenant may not park in any areas other than designated striped
parking areas on the Property.
ARTICLE 2.00 RENT
2.01 BASE RENT. Tenant agrees to pay monthly as Base Rent during the
term of this Lease the sum of money set forth in Section 1.04 of this Lease,
which amount shall be payable to Landlord at the address shown above, or such
other address as Landlord shall from time to time indicate in writing. One
monthly installment of Base Rent shall be due and payable on the date of
execution of this Lease by Tenant for the first month's rent and a like monthly
installment shall be due and payable on or before the first day of each
calendar month succeeding the Commencement Date (or Completion Date only if
Tenant is not already in occupancy of the Leased Premises) during the term of
this Lease; provided, if the Commencement Date (or the
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EXHIBIT A
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Completion Date only if Tenant is not already in occupancy of the Leased
Premises) should be a date other than the first day of a calendar month, the
monthly rental set forth above shall be prorated to the end of that calendar
month and all succeeding installments of rent shall be payable on or before the
first day of each succeeding calendar month during the term of this Lease.
Tenant shall pay, as additional rent, all other sums due under this Lease.
2.02 OPERATING EXPENSES. In the event Landlord's Operating Expenses for
the Property of which the Leased Premises are a part shall, in any calendar
year during the term of this Lease, exceed the Expense Stop set forth in
Section 1.07 of this Lease. Tenant agrees to pay as additional rent Tenant's
pro rata share of such excess Operating Expenses. Landlord may invoice Tenant
monthly for Tenant's pro rata share of the estimated Operating Expenses for
each calendar year, which amount shall be adjusted each year based upon
anticipated Operating Expenses. Within nine months following the close of each
calendar year, Landlord shall provide Tenant an accounting showing in
reasonable detail all computations of additional rent due under this section.
In the event the accounting shows that the total of the monthly payments made
by Tenant exceeds the amount of additional rent due by Tenant under this
section, the accounting shall be accompanied by a credit against the next
monthly rental payment. In the event the accounting shows that the total of the
monthly payments made by Tenant is less than the amount of additional rent due
by Tenant under this section, the accounting shall be accompanied by an invoice
for the additional rent. Notwithstanding any other provision in this Lease,
during the year in which the Lease terminates, Landlord, prior to the
termination date, shall have the option to invoice Tenant for Tenant's pro rata
share of the excess Operating Expenses based upon the previous year's Operating
Expenses. If this Lease shall terminate on a day other than the last day of a
calendar year, the amount of any additional rent payable by Tenant applicable
to the year in which such termination shall occur shall be prorated based on
the ratio that the number of days from the commencement of the calendar year to
and including the termination date bears to 365. Provided Tenant is not in
default of the Lease, Tenant shall have the right, at its own expense and
within a reasonable time, to audit Landlord's books relevant to the additional
rent payable under this section. Tenant agrees that any information or
agreements related to such audit shall be held by Tenant, its employees, agents
and contractors in strictest confidence. Tenant shall indemnify and hold
harmless Landlord from and against any claims, damages, costs or liabilities
incurred by Landlord in connection with any breach of this confidentiality
clause by Tenant, its employees, agents or contractors. As a precondition to
any audit by Tenant hereunder, Landlord may require any Tenant-related auditor
or other agent to sign a confidentiality agreement on Landlord's form. Tenant
agrees to pay any additional rent due under this section within ten days
following receipt of the invoice or accounting showing additional rent due.
Landlord's failure to timely meet any requirements of this Paragraph 2.02 shall
in no way constitute a waiver of its rights to collect such Operating Expenses
from Tenant and Tenant shall be bound to perform its obligations hereunder in
any event.
2.03 DEFINITION OF OPERATING EXPENSES. The term "Operating Expenses"
includes all expenses incurred by Landlord with respect to the maintenance and
operation of the Property of which the Leased Premises are a part, including,
but not limited to, the following: maintenance, repair and replacement costs;
security; management fees; wages and benefits payable to employees of Landlord
whose duties are directly connected with the operation and maintenance of the
buildings; all services, utilities, supplies, repairs, replacements or other
expenses for maintaining and operating the common parking and plaza areas; the
cost of any repair and/or capital improvement made to the Property by Landlord
after the beginning of the year in which the date of this Lease commences,
which repair and/or improvement is required by or under any governmental
authority, statute, law or regulation now in effect or imposed or enacted in
the future; the cost, including interest, amortized over its useful life, an
installation of any device or other equipment which is intended to improve the
operating efficiency of any system within the Leased Premises with the intent
to reduce Operating Expenses; all other expenses which would generally be
regarded as operating and maintenance expenses; all real property taxes and
installments of special assessments, including dues and assessments by means of
deed restrictions and/or owners' associations which accrue against the Property
of which the Leased Premises are a part during the term of this Lease; and all
insurance premiums Landlord is required to pay or deems necessary to pay,
including public liability insurance, with respect to the Property. The term
Operating Expenses does not include the following: repairs, restoration or
other work occasioned by fire, wind, the elements or other casualty only to the
extent such costs are covered by insurance proceeds; income and franchise taxes
of Landlord; expenses incurred in leasing to or procuring of lessees, leasing
commissions, advertising expenses and expenses for the renovating of space for
new lessees; interest or principal payments on any mortgage or other
indebtedness of Landlord; compensation paid to any employee of Landlord above
the grade of senior property manager; any capital costs not addressed above as
inclusions in Operating Expenses; or Operating Expenses which are the
responsibility of Tenant.
2.04 LATE PAYMENT CHARGE, INTEREST AND COSTS. Other remedies for
nonpayment of rent notwithstanding, if the monthly rental payment is not
received by Landlord on or before the fifth day of the month for which the
rent is due, or if any other payment due Landlord from Tenant is not received
by Landlord on or before the fifth day following the due date, a late payment
charge of five percent of such past due amount shall become due and payable in
addition to any other amounts owed under this Lease. In addition, any rent or
other amounts not paid on or before the fifth day following the due date shall
bear interest at 1 1/2% per month, retroactive to the due date, until fully
paid. Tenant shall indemnify Landlord against and hereby agrees to pay all
costs and charges (including legal fees and private investigator costs)
lawfully incurred by Landlord in enforcing payment thereof, in obtaining
possession of the Leased Premises after default of Tenant or upon expiration on
earlier termination of the Term of the Lease, or in enforcing any covenant,
provision or agreement of Tenant herein contained.
2.05 INCREASE IN INSURANCE PREMIUMS. If an increase in any insurance
premiums paid by Landlord for the Property as caused by Tenant's use of the
Leased Premises in a manner other than as set forth in Section 1.06, or if
Tenant vacates the Leased Premises and causes an increase in such premiums,
than Tenant shall pay as additional rent the amount of such increase to
Landlord.
2.06 SECURITY DEPOSIT. The security deposit set forth above shall be held
by Landlord for the performance of Tenant's covenants and obligations under this
Lease, it being expressly understood that the deposit shall not be considered
an advance payment of rental or a measure of Landlord's damage in case of
default by Tenant. Upon the occurrence of any event of default by Tenant or
breach by Tenant of Tenant's covenants under this Lease, Landlord may, from
time to time, without prejudice to any other remedy, use the security deposit
to the extent necessary to make good any arrears of rent, or to repair any
damage or injury, or pay any expense or liability incurred by Landlord as a
result of the event of default or breach of covenant, and any
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remaining balance of the security deposit shall be returned by Landlord to
Tenant upon termination of this Lease. If any portion of the security deposit
is so used or applied, Tenant shall upon ten days written notice from Landlord,
deposit with Landlord by cash or cashier's check, an amount sufficient to
restore the security deposit to its original amount.
2.07 HOLDING OVER. If Tenant remains in possession of all or any part of
the Leased Premises after the expiration of the Lease Term hereof, with or
without the consent of Landlord, but without written agreement regarding such
holding over, such tenancy shall be from month-to-month only, and not a renewal
hereof or an extension for any further Lease Term, and such month-to-month
tenancy may be terminated by Landlord or Tenant on the last day of any calendar
month by delivery of at least ten (10) days advanced written notice to the
other. Such month-to-month tenancy shall be subject to every term, covenant and
agreement contained herein, except that the Base Rent shall immediately increase
to an annual rate equal to the greater of market rent or 150% of the rent
payable by Tenant immediately preceding said holding over. Nothing contained in
this Article shall be construed to limit or impair any of Landlord's right of
re-entry or eviction or constitute a waiver thereof. In addition to the payment
of the increased Base Rent as set forth above and any other amounts due under
the Lease, Tenant shall be liable to Landlord for, and shall pay to Landlord
upon Landlord's demand an amount equal to all costs, losses, claims or
liabilities (including attorney's and private investigator's fees) which
Landlord may incur as a result of Tenant's failure to surrender possession of
the Leased Premises to Landlord upon the expiration or earlier termination of
the Lease.
2.08. SURVIVAL. The provisions of this Article 2.00 (as well as other
lease provisions that survive) shall survive the termination of the Lease.
ARTICLE 3.00 OCCUPANCY AND USE
3.01 USE. Tenant warrants and represents to Landlord that the Leased
Premises shall be used and occupied only for the purpose as set forth in
Section 1.06. At no time shall Tenant permit more than one person per 200
square feet of finished office area within the Leased Premises to occupy the
Leased Premises. Tenant shall occupy the Leased Premises, conduct its business
and control its agents, employees, invitees and visitors in such a manner as is
lawful, reputable and will not create a nuisance. Tenant shall not permit any
operation which emits any odor or matter which is toxic or hazardous or which
intrudes into other portions of the Property, use any apparatus or machine
which makes undue noise or causes vibration in any portion of the Property or
otherwise interfere with, annoy or disturb any other tenant in its normal
business operations or Landlord in its management of the Property. Tenant shall
neither permit any waste on the Leased Premises nor allow the Leased Premises
to be used in any way which would be hazardous to the environment or present a
fire danger that would, in any way increase or render void the fire insurance
on the Property. Tenant shall not bring onto the Property any toxic or
hazardous substance or material. Landlord shall not be liable to Tenant for
failure to enforce the terms of this article upon Tenant or other occupants of
the Property.
3.02 SIGNS. No sign of any type or description shall be erected, placed
or painted in or about the Leased Premises or project except those signs
submitted to Landlord in writing and approved by Landlord in writing, and which
signs are in conformance with Landlord's sign criteria established for the
project. Tenant hereby grants Landlord license to enter onto the Leased
Premises at any time, and to remove and dispose of any and all signs not in
compliance with this Section 3.02 and charge Tenant the cost of such removal
and/or disposal.
3.03 COMPLIANCE WITH LAWS, RULES AND REGULATIONS. Tenant, at Tenant's
sole cost and expense, shall comply with all laws, ordinances, orders, rules
and regulations of state, federal, municipal or other agencies or bodies having
jurisdiction over use, condition and occupancy of the Leased Premises. Tenant
will comply with the rules and regulations of the Property adopted by Landlord
which are set forth on a schedule attached to this Lease. Landlord shall have
the right at all times to change and amend the rules and regulations in any
reasonable manner as may be deemed advisable for the safety, care, cleanliness,
preservation of good order and operation or use of the Property or the Leased
Premises. All changes and amendments to the rules and regulations of the
Property will be sent by Landlord to Tenant in writing and shall thereafter be
carried out and observed by Tenant.
3.04 WARRANTY OF POSSESSION. Landlord warrants that it has the right and
authority to execute this Lease, and Tenant, upon payment of the required rents
and subject to the terms, conditions, covenants and agreements contained in
this Lease, shall have possession of the Leased Premises during the full term
of this Lease as well as any extension or renewal thereof. Landlord shall not
be responsible for the acts or omissions of any other tenant or third party that
may interfere with Tenant's use and employment of the Leased Premises.
3.05 INSPECTION. Landlord or its authorized agents shall at any and all
reasonable times have the right to enter the Leased Premises or to be provided
by Landlord, to show the Leased Premises to prospective purchasers or tenants,
and to alter, improve or repair the Leased Premises or any other portion of the
Property, or to remove therefrom and dispose of any toxic or hazardous materials
not approved by Landlord in writing. Tenant shall reimburse any cost incurred by
Landlord resulting from such repairs or removal and disposition. Tenant hereby
waives any claim for damages for injury or inconvenience to or interference with
Tenant's business, any loss of occupancy or use of the Leased Premises, and any
other loss occasioned thereby. Landlord shall at all times have and retain a key
with which to unlock all of the doors in, upon and about the Leased Premises.
Tenant shall not change Landlord's lock system or in any other manner prohibit
Landlord from entering the Leased Premises. Landlord shall have the right to use
any and all means which Landlord may deem proper to open any door in an
emergency without liability therefore.
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ARTICLE 4.00 UTILITIES AND SERVICE
4.01 PROPERTY SERVICES. Landlord shall provide the normal utility service
connections to the Property. Tenant shall pay the cost of all utility services,
including, but not limited to, initial connection charges and all charges for
gas and electricity. Landlord will provide water and sanitary and storm sewer
service to the Leased Premises, in which case Tenant agrees to pay all costs
caused by Tenant introducing excessive pollutants or solids other than ordinary
human waste into the sanitary sewer system, including permits, fees and charges
levied by any governmental subdivision for any such pollutants or solids. Tenant
shall be responsible for the installation and maintenance of any dilution tanks,
holding tanks, settling tanks, sewer sampling devices, sand traps, grease traps
or similar devices as may be required by any governmental subdivision for
Tenant's use of the sanitary sewer system. If the Leased Premises are in a
multi-occupancy building, Tenant shall pay all surcharges levied due to Tenant's
use of sanitary sewer or waste removal services insofar as such surcharges
affect Landlord or other tenants in the Property. In the event Tenant uses water
for other than restroom purposes and human consumption, an additional monthly
water charge will be billed to Tenant at Landlord's option. Landlord shall not
be required to pay for any utility services, supplies or upkeep in connection
with the Leased Premises or Property, other than for common area lighting.
Landlord's cost of providing the services set forth in this section are subject
to the additional rent provisions in Section 2.02.
4.02 THEFT OR BURGLARY. Landlord shall not be liable to Tenant for losses
to Tenant's property or personal injury caused by criminal acts or entry by
unauthorized persons into the Leased Premises or the Property.
ARTICLE 5.00 REPAIRS AND MAINTENANCE
5.01 LANDLORD REPAIRS. Landlord shall not be required to make any
improvements, replacements or repairs of any kind or character to the Leased
Premises or the project during the term of this Lease except as are set forth in
this section. Landlord shall maintain only the roof, foundation, parking areas,
landscaped areas, common areas, and the structural soundness of the exterior
walls (excluding windows, window glass, plate glass and doors). Landlord's costs
of maintaining the items set forth in this section are subject to recovery
pursuant to the additional rent provisions in Section 2.02. Landlord shall not
be liable to Tenant, except as expressly provided in this Lease, for any damage
or inconvenience, and Tenant shall not be entitled to any abatement or reduction
of rent by reason of any repairs, alterations or additions made by Landlord
under this Lease.
5.02 TENANT MAINTENANCE. Subject to Landlord's prior written approval of
all specifications, materials, finishes, colors and design criteria, Tenant
shall, exclusively, through the use of Landlord's contractors and at Tenant's
sole cost and expense, maintain, repair and replace all other parts of the
Leased Premises in good repair and condition, including, but not limited to,
heating, ventilating and air conditioning systems, fire sprinkler system, dock
bumpers, dock levelers, pest control and extermination, and trash pick-up and
removal. Tenant shall pay for any damage caused by any act or omission of Tenant
or Tenant's agents, employees, invitees, licensees or visitors. If the Leased
Premises are in a multi-occupancy building or project, Landlord reserves the
right to perform, on behalf of Tenant, trash pick-up and removal; Tenant agrees
to pay Landlord, as additional rent, Tenant's pro rata share of the cost thereof
within ten days from receipt of Landlord's invoice, or Landlord may by monthly
invoice direct Tenant to prepay the estimated costs for the current calendar
year, and such amount shall be adjusted annually. If Tenant fails to make the
repairs or replacements promptly as required herein, Landlord may, at its
option, make the repairs and replacements and the cost of such repairs and
replacements shall be charged to Tenant as additional rent and shall become due
and payable by Tenant within ten days from receipt of Landlord's invoice. Costs
incurred under this section are the total responsibility of Tenant and do not
constitute Operating Expenses under Section 2.02.
5.03 REQUEST FOR REPAIRS. All requests for repairs or maintenance that are
the responsibility of Landlord pursuant to any provision of this Lease must be
made in writing to Landlord at the address in Section 1.05.
5.04 TENANT DAMAGES. Tenant shall not allow any damage to be committed on
any portion of the Leased Premises or Property, and at the termination of this
Lease, by lapse of time or otherwise, Tenant shall deliver the Leased Premises
to Landlord in as good condition as existed at the Commencement Date of this
Lease, ordinary wear and tear excepted. The cost and expense of any repairs
necessary to restore the condition of the Leased Premises shall be borne by
Tenant, and shall be paid by Tenant within 10 days at Landlord's invoice
therefor.
5.05 MAINTENANCE CONTRACT. Tenant shall, at its sole cost and expense,
during the term of this Lease maintain a regularly scheduled preventative
maintenance/service contract with a maintenance contractor for the servicing of
all hot water, heating and air conditioning systems and equipment within the
Leased Premises and on the roof of the Building (any access to the roof
requiring Landlord's prior approval) and in any way servicing the Leased
Premises. The maintenance contractor and contract must be approved by Landlord
and must include monthly servicing, replacement of filters, replacement or
adjustment of drive belts, periodic lubrication and oil change and any other
services suggested by the equipment manufacturer. Landlord may, at its option,
provide the preventative maintenance for these services and the cost for these
services shall be charged to Tenant.
ARTICLE 6.00 ALTERATIONS AND IMPROVEMENTS
6.01 LANDLORD IMPROVEMENTS. If construction to the Leased Premises is to be
performed by Landlord prior to or during Tenant's occupancy, Landlord will
complete the construction of the improvements to the Leased Premises, in
accordance with the Work Letter Agreement attached as Exhibit B.
6.02 TENANT IMPROVEMENTS. Tenant shall not cause or allow to be made any
alterations or physical additions in or to the Leased Premises (including,
without limitation, carpet and other flooring replacement or additions) without
first obtaining
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the written consent of Landlord, which consent may, in the sole and absolute
discretion of Landlord, be withheld. Any such improvements (only to the extent
fully approved by Landlord in writing) shall be constructed by Landlord's
contractor, which contractor shall be under contract with and under the sole
supervision of Landlord. Such Landlord approved improvements shall be
documented by adequate plans and specifications, which plans and specifications
shall be created by Landlord's space planner and engineer and are subject to
Landlord's discretionary approval. The entire cost associated with such
improvements and such plans and specifications shall be paid for exclusively by
Tenant, with the estimated cost being paid by Tenant, at Landlord's option,
within 18 hours of Landlord's notice to Tenant of such estimated cost, and, in
any event, prior to commencement of any construction or plans and
specifications respectively. Any excess of actual cost over such estimate shall
be paid by Tenant within ten (10) days of Landlord's invoice therefor. Any
alterations, physical additions or improvements to the Leased Premises made by
Tenant shall at once become the property of Landlord and shall be surrendered
to Landlord upon the termination of this Lease; provided, however, Landlord, at
its option, may require Tenant to remove any physical additions and/or repair
any alterations in order to restore the Leased Premises to the condition
existing at the time Tenant took possession, all costs of removal and/or
alterations to be borne by Tenant. This clause shall not apply to moveable
equipment or furniture owned by Tenant, which may be removed by Tenant at the
end of the term of this Lease if Tenant is not then in default of the Lease and
if such equipment and furniture are not then subject to any other rights, liens
and interest of Landlord. Tenant acknowledges that Landlord's contractor may be
conducting construction to the Leased Premises while Tenant is occupying them.
Tenant hereby releases, holds harmless, indemnifies and agrees to defend
Landlord from any damage, injury, inconvenience, loss of productivity,
environmental or noise pollution or any other problem Tenant experiences by
virtue of such construction work being conducted in occupied space.
Additionally, Tenant covenants that it will assure that construction area
within the Leased Premises is free and clear of any objects, including, without
limitation, personnel, furniture, fixtures, equipment, boxes, trash or any
other objects, throughout the duration of the construction process.
6.03 MECHANICS LIEN. Tenant will not permit any mechanic's or
materialman's lien(s) or other lien to be placed upon the Leased Premises or
the Property and nothing in this Lease shall be deemed or construed in any way
as constituting the consent or request of Landlord, express or implied, by
inference or otherwise, to any person for the performance of any labor or the
furnishing of any material to the Leased Premises, or any part thereof, nor as
giving Tenant any right, power, or authority to contract for or permit the
rendering of any services or the furnishing of any materials that would give
rise to any mechanic's, materialman's or other lien against the Leased
Premises. In the event any such lien is attached to the Leased Premises, then,
in addition to any other right or remedy of Landlord, Landlord may, but shall
not be obligated to, obtain the release of or otherwise discharge the same. Any
amount paid by Landlord for any of the aforesaid purposes shall be paid by
Tenant to Landlord on demand as additional rent.
ARTICLE 7.00 CASUALTY AND INSURANCE
7.01 SUBSTANTIAL DESTRUCTION. If the Leased Premises should be totally
destroyed by fire or other casualty, or if the Leased Premises should be
damaged so that rebuilding cannot reasonably be completed within ninety working
days after the date of written modification by Tenant to Landlord of the
destruction, this Lease shall terminate and the rent shall be abated for the
unexpired portion of the Lease, effective as of the date of the written
notification.
7.02 PARTIAL DESTRUCTION. If the Leased Premises should be partially
damaged by fire or other casualty, and rebuilding or repairs can reasonably be
completed within ninety working days from the date of written modification by
Tenant to Landlord of the destruction, this Lease shall not terminate, and
Landlord shall at its expense (provided adequate insurance proceeds are
available to Landlord to pay the entire cost) proceed with reasonable diligence
to rebuild or repair the Property or other improvements to substantially the
same condition in which they existed prior to the damage. If the Leased
Premises are to be rebuilt or repaired and are untenantable in whole or in part
following the damage, and the damage or destruction was not caused or
contributed to by act or negligence of Tenant, its agents, employees, invitees
or those for whom Tenant is responsible, the rent payable under this Lease
during the period for which the Leased Premises are untenantable shall be
adjusted to such an extent as may be fair and reasonable under the
circumstances. In the event that Landlord fails to complete the necessary
repairs or rebuilding within ninety working days from the date of written
notification by Tenant to Landlord of the destruction, Tenant may at its option
terminate this Lease by delivering written notice of termination to Landlord,
whereupon all rights and obligations under this Lease shall cease to exist.
7.03 PROPERTY INSURANCE. Landlord shall at all times during the term of
this Lease maintain a policy or policies of insurance with the premiums paid in
advance, issued by and binding upon some solvent insurance company, insuring
the Property against all risk of direct physical loss in an amount equal to at
least ninety percent of the full replacement cost of the building structure and
its improvements as of the date of the loss; provided, Landlord shall not be
obligated in any way or manner to insure any personal property (including, but
not limited to, any furniture, machinery, goods or supplies) of Tenant upon or
within the Leased Premises, any fixtures installed or paid for by Tenant upon
or within the Leased Premises, or any improvements which Tenant may construct
on the Leased Premises. Tenant shall have no right in or claim to the proceeds
of any policy of insurance maintain by Landlord even though the cost of such
insurance is borne by Tenant as set forth in Article 2.00.
7.04 TENANT'S INSURANCE. During the Term, Tenant shall maintain, with
insurers reasonably satisfactory to Landlord, at its own expense and provide
insurance certificates evidencing the following to Landlord without demand or
notice upon signing this Lease and upon any policy renewal or replacement:
(a) Fire insurance with extended coverage and water damage
insurance in amounts equal to the full replacement value of Tenant's
improvements and all property in the Leased Premises which is not owned by
Landlord, with Landlord and Global Pacific Properties, Inc. named as additional
insureds;
(b) Liability insurance, with Landlord and Global Pacific
Properties, Inc. named as an additional insureds,
Initial: KDK
PRS
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against claims for death, personal injury and property damage in or about the
Leased Premises, in amounts of $1,000,000 for death, illness or injury to one
or more persons, and $500,000 for property damage, in respect to each
occurrence.
(c) Worker's Compensation insurance covering all persons employed by
Tenant in or about the Leased Premises, including contract labor for tenant
activities for tenant activities; and
(d) Business Interruption Insurance with coverage equal to six (6)
month's gross income of Tenant.
7.05 WAIVER OF SUBROGATION. Except as provided in Section 7.06 below,
Landlord and Tenant hereby waive and release each other of and from any and all
right of recovery, claim, action or cause of action, against each other, their
agents, officers and employees, for any loss or damage that may occur to the
Leased Premises, improvements to the Property of which the Leased Premises are a
part, or personal property within the Property, by reason of fire or the
elements, regardless of cause or origin, including negligence of Landlord or
Tenant and their agents, officers and employees. Landlord and Tenant agree
immediately to give their respective insurance companies which have issued
policies of insurance covering all risk of direct physical loss, written notice
of the terms of the mutual waivers contained in this section, and to have the
insurance policies properly endorsed, if necessary, to prevent the invalidation
of the insurance coverages by reason of the mutual waivers.
7.06 HOLD HARMLESS. Landlord shall not be liable to Tenant or Tenant's
employees, agents, invitees, licensees or visitors, or to any other person for
an injury to person or damage to property on or about the Leased Premises
caused by any act or omission of Tenant, its agents, servants or employees, or
of any other person entering upon the Leased Premises under express or implied
invitation by Tenant, or caused by the improvements located on the Leased
Premises becoming out of repair, the failure or cessation of any service
provided by Landlord (including security service and devices), or caused by
leakage of gas, oil, water or steam or by electricity emanating from the Leased
Premises. Tenant agrees to indemnify and hold harmless Landlord of and from any
loss, attorney's fees, expenses or claims arising out of Tenant's negligence,
fraud or intentional misconduct.
ARTICLE 8.00 CONDEMNATION
8.01 SUBSTANTIAL TAKING. If all or a substantial part of the Leased
Premises are taken for any public or quasi-public use under any governmental
law, ordinance or regulation, or by right of eminent domain or by purchase in
lieu thereof, and the taking would prevent or materially interfere with the use
of the Leased Premises for the purpose for which it is then being used, this
Lease shall terminate and the rent shall be abated during the unexpired portion
of this Lease effective on the date physical possession is taken by the
condemning authority. Tenant shall have no claim to the condemnation award or
proceeds in lieu thereof.
8.02 PARTIAL TAKING. If a portion of the Leased Premises shall be taken
for any public or quasi-public use under any governmental law, ordinance, or
regulation, or by right of eminent domain or by purchase in lieu thereof, and
this Lease is not terminated as provided in Section 8.01 above, to the extent
that condemnation proceeds are available to Landlord, Landlord shall at
Landlord's sole risk and expense, restore and reconstruct the Property and
other improvements on the Leased Premises to the extent necessary to make it
reasonably rentable. The rent payable under this Lease during the unexpired
portion of the term shall be adjusted to such an extent as may be fair and
reasonable under the circumstances. Tenant shall have no claim to the
condemnation award or proceeds in lieu thereof.
ARTICLE 9.00 ASSIGNMENT OR SUBLEASE
9.01 LANDLORD ASSIGNMENT. Landlord shall have the right to sell, transfer
or assign, in whole or in part, its rights and obligations under this Lease and
to the Property. Any such sale, transfer or assignment shall operate to release
Landlord from any and all liabilities under this Lease arising after the date of
such sale, assignment or transfer.
9.02 TENANT ASSIGNMENT. Tenant shall not assign, in whole or in part, this
Lease, or allow it to be assigned, in whole or in part, by operation of law or
otherwise (including without limitation by transfer of a majority interest of
stock, merger, or dissolution, which transfer of majority interest of stock,
merger or dissolution shall be deemed an assignment) or mortgage or pledge the
same, or sublet the Leased Premises, in whole or in part, without the prior
written consent of Landlord, and in no event shall any such assignment or
sublease ever release Tenant or any guarantor from any obligation or liability
hereunder. Under no circumstances shall Tenant be permitted to sublet the Leased
Premises or assign or otherwise convey its rights under this Lease to any other
tenant in the Property or to any prospective tenant with which prospective
tenant Landlord is negotiating. No assignee or sublessee of the Leased Premises
or any portion thereof may assign or sublet the Leased Premises or any portion
thereof.
9.03 CONDITIONS OF ASSIGNMENT. If Tenant desires to assign or sublet all or
any part of the Leased Premises, it shall so notify Landlord at least thirty
days in advance of the date on which Tenant desires to make such assignment or
sublease. Tenant shall provide Landlord with a copy of the proposed assignment
or sublease, and such information as Landlord might request concerning the
proposed sublessee or assignee to allow Landlord to make informed judgments as
to the financial condition, reputation, operations and general desirability of
the proposed subleasee or asignee and the greater of $400 or Landlord's actual
out-of-pocket cost to reimburse Landlord's cost of reviewing such documentation
and the sublease or assignment. Within fifteen days after Landlord's receipt of
Tenant's proposed assignment or sublease and all required information concerning
the proposed sublessee or assignee, Landlord shall have the following options:
(1) cancel this Lease as to the Leased Premises or portion thereof proposed to
be assigned or sublet; (2) consent to the proposed assignment or sublease, and,
if the rent due and payable by any assignee or sublessee under any such
permitted assignment or sublease (or a combination of the rent payable under
such assignment or sublease plus any bonus or any other consideration or any
payment
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incident thereto) exceeds the rent payable under this Lease for such space.
Tenant shall pay to Landlord all such excess rent and other excess
consideration within ten days following receipt thereof by Tenant; (or (3)
refuse, in its sole and absolute discretion and judgment, to consent to the
proposed assignment or sublease, which refusal shall be deemed to have been
exercised unless Landlord gives Tenant written notice providing otherwise. Upon
the occurrence of an event of default, if all or any part of the Leased
Premises are then assigned or sublet, Landlord, in addition to any other
remedies provided by this Lease or provided by law, may, at its option, collect
directly from the assignee or sublessee all rents becoming due to Tenant by
reason of the assignment or sublease, and Landlord shall have a security
interest in all property on the Leased Premises to secure payment of such sums.
Any collection directly by Landlord from the assignee or sublessee shall not be
construed to constitute a novation on a release of Tenant or any guarantor from
the further performance of its obligations under this Lease.
9.04 SUBORDINATION. Tenant accepts this Lease subject and subordinate to
any recorded mortgage or deed of trust then presently existing or hereafter
created upon the Property or project and to all existing recorded restrictions,
covenants, easements and agreements with respect to the Property. Landlord is
hereby irrevocably vested with full power and authority to subordinate Tenant's
interest under this Lease to any first mortgage or deed of trust lien hereafter
placed on the Leased Premises, and Tenant agrees upon demand to execute
additional instruments subordinating this Lease as Landlord may require. In the
interests of Landlord under this Lease shall be transferred by reason of
foreclosure or other proceedings for enforcement of any first mortgage or deed
of trust lien on the Leased Premises. Tenant shall be bound to the transferee
(sometimes called the "Purchaser") at the option of the Purchaser, under the
term, covenants and conditions of this Lease for the balance of the term
remaining, including any extensions or renewals, with the same force and effect
as if the Purchaser were Landlord under this Lease, and, if requested by the
Purchaser, Tenant agrees to attorn to the Purchaser, including the first
mortgagee under any such mortgage if it be the Purchaser, as its Landlord.
Tenant shall not record this Lease under any circumstances.
9.05 ESTOPPEL CERTIFICATES. Tenant agrees to furnish, from time to time,
within ten days after receipt of a request from Landlord or Landlord's
mortgagee, a statement certifying, if applicable, the following: Tenant is in
possession of the Leased Premises; the Leased Premises are acceptable; the Lease
is in full force and effect; the Lease is unmodified; Tenant claims no present
charge, lien, or claim of offset against rent; the rent is paid for the current
month, but is not prepaid for more than one month and will not be prepaid for
more than one month in advance; there is no existing default by reason of some
act or omission by Landlord; and such other matters as may be reasonably
required by Landlord or Landlord's mortgagee. Tenant's failure to deliver such
statement, in addition to being a default under this Lease, shall be deemed to
establish conclusively that this Lease is in full force and effect except as
declared by Landlord, that Landlord is not in default of any of its obligations
under this Lease, and that Landlord has not received more than one month's rent
in advance.
ARTICLE 10.00 LIENS
10.01 LANDLORD'S LIEN. As security for payment of rent, damages and all
other payments required to be made by this Lease, Tenant hereby grants to
Landlord a lien upon all property of Tenant now or subsequently located upon the
Leased Premises. If Tenant abandons or vacates any substantial portion of the
Leased Premises or is in default in the payment of any rentals, damages or other
payments required to be made by this Lease or is in default of any other
provision of this Lease, Landlord may enter upon the Leased Premises by picking
or changing locks if necessary, and take possession of all or any part of the
personal property, and may sell all or any part of the personal property at a
public or private sale, in one or successive sales, with or without notice, to
the highest bidder for cash, and, on behalf of Tenant, sell and convey all or
part of the personal property to the highest bidder, delivering to the highest
bidder all of Tenant's title and interest in the personal property sold. The
proceeds of the sale of the personal property shall be applied by Landlord
toward the reasonable costs and expenses of the sale, including attorney's fees,
and then toward the payment of all sums then due by Tenant to Landlord under the
terms of this Lease. Any excess remaining shall be paid to Tenant (if Tenant may
be reasonably located without expense to or significant effort by Landlord) or
any other person entitled thereto by law (if said person may be reasonably
located without expense to or significant effort by Landlord).
10.02 UNIFORM COMMERCIAL CODE. This Lease is intended as and constitutes
a security agreement within the meaning of the Uniform Commercial Code of the
state in which the Leased Premises are situated. Landlord, in addition to the
rights prescribed in this Lease, shall have all of the rights, titles, liens
and interests in and to Tenant's property, now or hereafter located upon the
Leased Premises, which may be granted a secured party, as that term is defined,
under the Uniform Commercial Code to secure to Landlord payment of all sums due
and the full performance of all Tenant's covenants under this Lease. Tenant
will on request execute and deliver to lessor a financing statement for the
purpose of perfecting Landlord's security interest under this Lease or Landlord
may file this Lease or a copy thereof as a financing statement. Unless
otherwise provided by law and for the purpose of exercising any right pursuant
to this section. Landlord and Tenant agree that reasonable notice shall be met
if such notice is given by ten days written notice, certified mail, return
receipt requested, to Landlord or Tenant at the addresses specified herein.
ARTICLE 11.00 DEFAULT AND REMEDIES
11.01 DEFAULT BY TENANT The following shall be deemed to be events of
default by Tenant under this Lease: (1) Tenant shall fail to pay when due any
installment of rent or any other payment required pursuant to this Lease; (2)
Tenant shall abandon any substantial portion of the Leased Premises; (3) Tenant
shall fail to comply with any term, provision or covenant of this Lease; and
other than for the payment of rent, which default shall require no notice, the
failure is not cured within ten days after written notice to Tenant, (4) Tenant
shall file a petition or be adjudged bankrupt or insolvent under any applicable
federal or state bankruptcy or insolvency law or admit that it cannot meet its
financial obligation as they become due; or a receiver or trustee shall be
appointed for all or substantially all of the assets of Tenant; or Tenant shall
make a transfer in fraud of creditors or shall make all assignment for the
benefit of creditors; or (5) Tenant shall do or permit to be done any act
which results in a lien being filed against the Leased Premises on the Property
and/or project of which the Leased Premises are a part.
Initial: KDK
[ILLEGIBLE COPY]
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11.02 REMEDIES FOR TENANT'S DEFAULT. Upon the occurrence of any event of
default set forth in this Lease, Landlord shall have the option to pursue any
one or more of the remedies set forth herein without any notice or demand. (1)
Landlord may enter upon and take possession of the Leased Premises, by picking
or changing locks if necessary, and lock out, expel and remove Tenant and any
other person who may be occupying all or any part of the Leased Premises without
being liable for any claim for damages and without relieving Tenant from the
obligation to pay rent and other charges due under this Lease, except to the
extent of rent received from reletting the Leased Premises. To relet the Leased
Premises on behalf of Tenant and receive the rent directly by reason of the
reletting. Tenant agrees to pay Landlord on demand any deficiency that may arise
by reason of any reletting of or failure to relet the Leased Premises: further,
Tenant agrees to reimburse Landlord for any expenditures made by Landlord in
order to relet the Leased Premises, including, but not limited to, remodeling
and repair costs. (2) Landlord may enter upon the Leased Premises, by picking or
changing locks if necessary, without being liable for any claim for damages, and
do whatever Tenant is obligated to do under the terms of this Lease. Tenant
agrees to reimburse Landlord on demand for any expenses which Landlord may incur
in effecting compliance with Tenant's obligations under this Lease; further,
Tenant agrees that Landlord shall not be liable for any damages resulting to
Tenant from affecting compliance with Tenant's obligations under this Lease
caused by the negligence of Landlord or otherwise. (3) Landlord may terminate
this Lease, in which event Tenant shall immediately surrender the Leased
Premises to Landlord, and if Tenant fails to surrender the Leased Premises,
Landlord may, without prejudice to any other remedy which it may have for
possession or arrearages in rent, enter upon and take possession of the Leased
Premises, by picking or changing locks if necessary, and lock out, expel or
remove Tenant and any other person who may be occupying all or any part of the
Leased Premises without being liable for any claim for damages. Tenant agrees to
pay on demand the amount of all loss and damage which Landlord may suffer by
reason of the termination of this Lease under this section, whether through
inability to relet the Leased Premises on satisfactory terms or otherwise.
Notwithstanding any other remedy set forth in this Lease, in the event Landlord
has made rent concessions of any type or character, or waived any Base Rent, and
Tenant fails to take possession of the Leased Premises on the Commencement or
Completion Date or otherwise defaults at any time during the terms of this
Lease, the rent concessions, including any waived Base Rent, shall be cancelled
and the amount of the Base Rent or other rent concessions shall be due and
payable immediately as if no rent concessions or waiver of any Base Rent had
ever been granted. A rent concession or waiver of the Base Rent shall not
relieve Tenant of any obligation to pay any other charge due and payable under
this Lease including without limitation any sum due under Section 2.02.
Notwithstanding anything contained in this Lease to the contrary, this Lease may
be terminated by Landlord only by mailing or delivering written notice of such
termination to Tenant, and no other act or omission of Landlord shall be
construed as a termination of this Lease.
ARTICLE 12.00 RELOCATION
12.01 RELOCATION OPTION. In the event Landlord determines to utilize the
Leased Premises for other purposes during the term of this Lease, Tenant agrees
to relocate to other space in the Property designated by Landlord, provided such
other space is of equal size to or larger size than the Leased Premises.
12.02 EXPENSES. Landlord shall pay all out-of-pocket expenses of any such
relocation, including the expenses of moving and reconstruction of all Tenant
furnished and Landlord furnished improvements to bring the relocated to space to
a reasonably comparable condition to the relocated from space. In the event of
such relocation, this Lease shall continue in full force and effect without any
change in the terms or conditions of this Lease, but with the new location
substituted for the old location set forth in Section 1.02 of this Lease.
ARTICLE 13.00 DEFINITIONS
13.01 ABANDON. "Abandon" means the vacating of all or a substantial portion
of the Leased Premises by Tenant, whether or not Tenant is in default of the
rental payments due under this Lease.
13.02 ACT OF GOD OR FORCE MAJEURE. An "act of God" or "force Majeure" is
defined for purposes of this Lease as strikes, lockouts, sitdowns, material or
labor restrictions by any governmental authority, unusual transportation delays,
riots, floods, washouts, explosions, earthquakes, fire, storms, whether
(including wet grounds or inclement weather which prevents construction), acts
of the public enemy, wars, insurrections and any other cause not reasonably
within the control of Landlord and which by the exercise of due diligence
Landlord is unable, wholly or in part, to prevent or overcome.
13.03 PROPERTY. "Property" as used in this Lease means the property
and/or project described in Section 1.02, including the Leased Premises and the
land upon which any improvements are situated.
13.04 COMMENCEMENT DATE. "Commencement Date" shall be the date set forth in
Section 1.03. The Commencement Date shall constitute the commencement of the
term of this Lease for all purposes, whether or not Tenant has actually taken
possession, except as specified below in Section 13.05.
13.05 COMPLETION DATE. "Completion Date" shall be the date on which the
improvements erected and to be erected upon the Leased Premises, shall have been
substantially completed in accordance with the plans and specifications
described in Article 6.00. Provided that Tenant is not already in occupancy of
the Leased Premises, subject to the provisions of Exhibit B herein (Work Letter
Agreement) and provided Tenant does not cause any delays, the Completion Date
shall constitute the commencement of the term of this Lease for all purposes.
Landlord shall use its best efforts to establish the Completion Date as the
Commencement Date set forth in Section 1.03. In the event that the improvements
have not in fact been completed as of that date, Landlord shall have a
reasonable time in which to complete construction. If Tenant causes any delays,
or as otherwise provided therein, the provisions of Exhibit B (Work Letter
Agreement) shall control. Provided that Tenant is not already in occupancy of
the Leased Premises, upon substantial completion of construction, Tenant shall
deliver to Landlord a letter accepting the Leased Premises as suitable for the
purposes for which they are let and the date specified in such letter shall
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be the date of substantial completion and shall constitute the commencement of
the term of this Lease. Whether or not Tenant has executed such letter of
acceptance, taking possession of the Leased Premises by Tenant shall be deemed
to establish conclusively that the improvements have been completed in
accordance with the plans and specifications, are suitable for the purposes for
which the Leased Premises are let, and that the Leased Premises are in good and
satisfactory condition as of the date possession was so taken by Tenant.
Notwithstanding the preceding in this Paragraph 13.05, if Tenant is already in
occupancy of the Leased Premises, all of Tenant's obligations under the Lease
shall commence no later than the Commencement Date, irrespective of the
completion status of any improvements to the Leased Premises.
13.06 SQUARE FEET. "Square feet" or "square foot" as used in this Lease
includes the area contained within the Leased Premises together with a common
area percentage factor of the Leased Premises proportionate to the total
building area.
ARTICLE 14.00 MISCELLANEOUS
14.01 NO WAIVER. Failure of Landlord to declare an event of default
immediately upon its occurrence, or delay in taking any action in connection
with an event of default, shall not constitute a waiver of the default, but
Landlord shall have the right to declare the default at any time and take such
action as is lawful or authorized under this Lease. Pursuit of any one or more
of the remedies set forth in Article 11.00 above shall not preclude pursuit of
any one or more of the other remedies provided elsewhere in this Lease or
provided by law, nor shall pursuit of any remedy constitute forfeiture or
waiver of any rent or damages accruing to Landlord by reason of the violation
of any of the terms, provisions or covenants of this Lease. Failure by
Landlord to enforce one or more of the remedies provided upon an event of
default shall not be deemed or construed to constitute a waiver of the default
or of any other violation or breach of any of the terms, provisions and
covenants contained in this Lease.
14.02 ACT OF GOD. Landlord shall not be required to perform any covenant
or obligation in this Lease, or be liable in damages to Tenant, so long as the
performance or non-performance of the covenant or obligation is delayed, caused
or prevented by an act of God, or force majeure or by Tenant.
14.03 ATTORNEY AND PRIVATE INVESTIGATOR FEES. In the event Tenant defaults
in the performance of any of the terms, covenants, agreements or conditions
contained in this Lease and Landlord places in the hands of an attorney the
enforcement of all or any part of this Lease, the collection of any rent due or
to become due or recovery of the possession of the Leased Premises and/or
retains a private investigator for services related thereto, Tenant agrees to
pay Landlord's costs of collection, including, without limitation, attorney and
investigator costs, whether suit is actually filed or not.
14.04 SUCCESSORS. This Lease shall be binding upon and inure to the benefit
of Landlord and Tenant and their respective heirs, personal representatives,
successors and assigns, such assigns subject to the provisions of Section 9.02.
It is hereby covenanted and agreed that should Landlord's interest in the Leased
Premises cease to exist for any reason during the term of this Lease, then
notwithstanding the happening of such event this Lease nevertheless shall remain
unimpaired and in full force and effect, and Tenant hereunder agrees to attorn
to the then owner of the Leased Premises.
14.05 RENT TAX. If applicable in the jurisdiction where the Leased
Premises are situated, Tenant shall pay and be liable for all rental, sales
and use taxes or other similar taxes, if any, levied or imposed by any city,
state, county or other governmental body having authority, such payments to be
in addition to all other payments required to be paid to Landlord by Tenant
under the terms of this Lease. Any such payment shall be paid concurrently with
the payment of the rent, additional rent, Operating Expenses or other charge
upon which the tax is based as set forth above.
14.06 CAPTIONS. The captions appearing in this Lease are inserted only as
a matter of convenience and in no way define, limit, construe or describe the
scope or intent of any section.
14.07 NOTICE. All rent and other payments required to be made by Tenant
shall be payable to Landlord at the address set forth in Section 1.05, or at any
other address within the United States as Landlord may specify from time to time
by written notice. All payments required to be made by Landlord to Tenant shall
be payable to Tenant at the address set forth in Section 1.05, or at any other
address within the United States as Tenant may specify from time to time by
written notice. Any notice or document required or permitted to be delivered by
the terms of this Lease shall be deemed to be delivered (whether or not actually
received) when deposited in the United States Mail, postage prepaid, certified
mail, return receipt requested, addressed to the parties at the respective
addresses set forth in Section 1.05.
14.08 SUBMISSION OF LEASE. Submission of this Lease to Tenant for
signature does not constitute a reservation of space or an option to lease.
This Lease is not effective until execution by and delivery to both Landlord
and Tenant.
14.09 CORPORATE AUTHORITY. If Tenant executes this Lease as a corporation,
partnership, limited liability company or other formal entity, each of the
persons executing this Lease on behalf of Tenant does hereby personally
represent and warrant that Tenant is a duly authorized and existing corporation
partnership, limited liability company or other formal entity, that Tenant is
qualified to do business in the state in which the Leased Premises are located,
that the corporation, partnership, limited liability company or other formal
entity, has full right and authority to enter into this Lease, and that each
person signing on behalf of the corporation, partnership, limited liability
company or other formal entity, is authorized to do so. In the event any
representation or warranty is false, all persons who execute this Lease shall
be liable, individually, as Tenant.
14.10 SEVERABILITY. If any provision of this Lease or the application
thereof to any person or circumstance shall be invalid, or unenforceable to any
extent, the remainder of this Lease and the application of such provisions to
other persons or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law.
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14.11 LANDLORD'S LIABILITY. If Landlord shall be in default under this
Lease and, if as a consequence of such default, Tenant shall recover a money
judgment against Landlord, such judgment shall be satisfied only out of the
right, title and interest of Landlord in the Property as the same may then be
encumbered and neither Landlord nor any person or entity comprising Landlord
shall be liable for any deficiency. In no event shall Tenant have the right to
levy execution against any property of Landlord nor any person or entity
comprising Landlord other than its interest in the Property as herein expressly
provided.
14.12 INDEMNITY. Tenant agrees to indemnify and hold harmless Landlord
from and against any liability or claim, whether meritorious or not, arising
with respect to any broker whose claim arises by, through or on behalf of
Tenant, except as disclosed to Landlord in writing prior to the time that space
planning or lease negotiations have commenced.
14.13 NO RECORDING BY TENANT. Under no circumstances shall Tenant record
this Lease.
ARTICLE 15.00 AMENDMENT AND LIMITATIONS OF WARRANTIES
15.01 ENTIRE AGREEMENT. IT IS EXPRESSLY AGREED BY Tenant, AS A MATERIAL
CONSIDERATION FOR THE EXECUTION OF THIS LEASE, THAT THIS LEASE, WITH THE
SPECIFIC REFERENCES TO WRITTEN EXTRINSIC DOCUMENTS, IS THE ENTIRE AGREEMENT OF
THE PARTIES; THAT THERE ARE, AND WERE, NO VERBAL REPRESENTATIONS, WARRANTIES,
UNDERSTANDINGS, STIPULATIONS, AGREEMENTS OR PROMISES PERTAINING TO THIS LEASE
OR TO THE EXPRESSLY MENTIONED WRITTEN EXTRINSIC DOCUMENTS NOT INCORPORATED IN
WRITING IN THIS LEASE.
15.02 AMENDMENT. THIS LEASE MAY NOT BE ALTERED, WAIVED, AMENDED OR
EXTENDED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY Landlord AND Tenant.
15.03 LIMITATION OF WARRANTIES. Landlord AND Tenant EXPRESSLY AGREE THAT
THERE ARE AND SHALL BE NO IMPLIED WARRANTIES OF MERCHANTABILITY, HABITABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR OF ANY OTHER KIND ARISING OUT OF THIS
LEASE, AND THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THOSE EXPRESSLY SET
FORTH IN THIS LEASE.
ARTICLE 16.00 OTHER PROVISIONS
16.01 SECURITY DEPOSIT. Provided that Tenant has not been in default of
the Lease at any time during the Term up to that point, Landlord shall credit
to Tenant's account one-third of Tenant's then-remaining Security Deposit after
the end of the first year of the Lease or after Tenant has achieved a positive
net worth and positive net income (pursuant to audited GAAP financial
statements), whichever last occurs. Further, provided that Tenant has not been
in default of the Lease at any time during the Term up to that point, the
positive difference between the remaining Security Deposit and $1,968 shall be
credited to Tenant's account after the end of the second year of the Lease or
after Tenant has achieved a positive net worth and positive net income
(pursuant to audited GAAP financial statements), whichever last occurs. If
Tenant is in default of the Lease at any time prior to any credit to Tenant
described above in this Paragraph 16.01 being made, no such credits (of future
credits) shall be made; Landlord shall retain any remaining Security Deposit
for the entire Term; and Tenant shall, in any event, be required to comply with
all other provisions of the Lease related to the Security Deposit, including,
without limitation, Paragraph 2.06 thereof. Under no circumstances shall
Tenant's Security Deposit be less than $1,968 at any time.
16.02 COMMON AREA RESTROOMS. Tenant agrees to share with the tenant in
Suite 204, equally, the use and maintenance of the restrooms marked as Area A
on the attached Exhibit E. Landlord shall have no liability or obligation
whatsoever related to Tenant's shared use or maintenance of said restroom.
ARTICLE 17.00 SIGNATURES
SIGNED at Arapahoe County this 27th day of April, 1998
Landlord Tenant
HIGHLAND SQUARE CENTER, LTD. GRAFIX TIME CORPORATION,
a Colorado limited partnership a New York Corporation
By: KAI Brothers, Inc., general partner
By: BR Bauvare By: Xxxx X. Xxxxxxxx
-------------------------- ----------------------
Title: Vice President Title: President/CEO
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