EXHIBIT 10.7
BUSINESS LEASE
THIS LEASE, made and entered into this 17th day of July, 2013, between 1885 WEST
DARTMOUTH, LLC, a Colorado Limited Liability Company, hereinafter called the
"Lessor" and RD&G, LLC, a Colorado Limited Liability Company, hereinafter called
the "Lessee";
WITNESSETH THAT:
1. Definition of Terms:
Whenever the words "Lessor" and "Lessee" are used in this Lease, they shall
include Lessor and Lessee and shall apply to persons, both men and women,
companies, partnerships and corporations.
2. Leased Premises:
In consideration of the payment of the Rent hereinafter provided, and the
keeping and performance of each of the covenants and agreements of the Lessee
hereinafter set forth, the Lessor has and does hereby Lease to the Lessee the
following described Leased Premises, situated in the County of Denver, and State
of Colorado, to wit:
0000 X Xxxxxxxxx, Xxxx 0, Xxxxxxxxx, Xxxxxxxx 00000 consisting of
approximately 4,985 square feet, depicted in Exhibit A (the "Leased
Premises"). Any statement of square footage set forth in this Lease or
that may have been used in calculating rent and/or Lessee's other
obligations, including Lessee's share of operating expenses is an
approximation which Lessor and Lessee agree is reasonable, and the
rent and Lessee's other obligations based thereon is not subject to
revisions during the Lease term regardless of whether the actual
square footage is more or less.
Subject to the provisions of this Lease, Lessor covenants that Lessee, on paying
of the Rent and performing all other covenants and obligations hereunder, shall
peacefully and quietly have, hold and enjoy the Leased Premises for the term of
this Lease. Notwithstanding the foregoing, Lessor will not be liable or
responsible for the acts or omissions or any third party which may interfere
with Lessee's use and enjoyment of the Leased Premises. Lessor may transfer or
assign this Lease at any time to any party, and in such event, the transferor
Lessor will be automatically relieved of any and all obligations and liabilities
on the part of Lessor accruing from and after the date of such transfer.
3. Term of Lease and Minimum Rent:
The term of this Lease shall be for Three (3) Years and Twenty (20) days
commencing at 12:00 noon on the 11th day of July, 2013, and expiring at 12:00
noon on the 31st day of July 2016, for the minimum rental ("Minimum Rent") for
the full term of Sixty Nine Thousand One Hundred Sixty Six & 88/100 ($69,166.88)
payable in monthly installments as follows:
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July 11, 2013 - July 31, 2013 @ $ 0.00
August 1, 2013 - July 31, 2014 @ $1,869.38 per month + NNN*
August 1, 2014 - July 31, 2015 @ $1,921.30 per month + NNN*
August 1, 2015 - July 31, 2016 @ $1,973.23 per month + NNN*
Lessee shall pay to Lessor as "Additional Rent" all other sums due under this
Lease. Additional Rent, together with Minimum Rent is referred to herein as
"Rent."
Rent is to be paid in advance on or before 12:00 noon on the first day of each
calendar month during said term at the office of Xxxxxxx Xxxxx Realty Company,
addressStreet300 X Xxxxxxx Xxxxxx, Xxxxx 000, XxxxXxxxxx, XxxxxXxxxxxxx
PostalCode80209, or at such place as the Lessor may designate, from time to
time, in writing. The installments of minimum rent are payable without notice,
offset or demand, and regardless of any other dispute between Lessor and Lessee.
Lessee hereby waives any rights to set off against the installments of Rent any
claims it may have against Lessor. If the Lessee takes occupancy prior to the
commencement date, all terms and conditions, except Minimum Rent, shall apply.
Rent for the first month of the term hereof shall be prorated based upon the
number of days during said month.
Upon the occurrence of a default by Lessee under the terms of the Lease, in
addition to all other remedies available to Lessor, Lessee shall be required to
pay to Lessor, upon demand, the unamortized value of any free Rent, as well as
the cost for any improvements made for the benefit of Lessee, and any leasing
commissions paid or due in connection with this Lease, and any other amounts
owed under the terms of the Lease.
4. Security Deposit:
a) Lessee shall deposit with the Lessor, at the time of execution of this
Lease, the sum of Two Thousand Seven Hundred Fifty Dollars, ($2,750.00) as
"Security Deposit" for the full and faithful performance of this Lease by
Lessee, and the return of the Leased Premises in as good condition as when
Lessee first entered the Leased Premises, ordinary wear excepted. If, at
any time during the term hereof, Lessee shall be in default in the
performance of any provisions of this Lease, Lessor shall have the right,
but shall not be obligated, to use the Security Deposit, or so much thereof
as necessary, in payment of any Rent in default, reimbursement of any
expense incurred by Lessor, and in payment of any damages incurred by the
Lessor by reason of Lessee's default, replacement of damaged or missing
items, and/or cleaning of the Leased Premises beyond ordinary wear. In the
event the Security Deposit has not been utilized as aforesaid, the Security
Deposit, or as much thereof as has not been utilized for such purposes,
shall be refunded to Lessee, without interest, within sixty (60) days after
the termination of this Lease, and upon full performance of this Lease by
Lessee and vacation of the Premises by Lessee. Lessee shall not be entitled
to interest on the Security Deposit, and Lessor may commingle the Security
Deposit with other funds. The Security Deposit shall not be considered as
an advance payment of rent and cannot be utilized by Lessee to pay any
monetary obligations of Lessee under this Lease at any time.
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b) Lessee is hereby notified that Lessor has employed Xxxxxxx Xxxxx Realty
Company, whose address is Xxxxxxx Xxxxx Realty Company, 000 X Xxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000 (Telephone: 000-000-0000, Fax
000-000-0000) as manager of the Leased Premises ("Manager"), and Manager
shall collect the Security Deposit required under this Lease, which
Security Deposit will be directly deposited in the owner's property
management account. Lessor will be solely responsible for the return of the
Security Deposit pursuant to Colorado Law. Furthermore, Lessor may, for any
matter pertaining to this Lease, act by and through its Manager or any
other person designated in writing from time to time.
c) Upon Lessor's cessation of its interest in the Leased Premises, whether by
sale, assignment, death, appointment of a receiver or otherwise, Lessor
shall transfer the Security Deposit to the Lessor's successor in interest
and timely notify the Lessee by mail of such transfer and the transferee's
name and address.
d) Upon written notice to Manager of a dispute from the Lessee as to the
ownership of the Security Deposit, Manager shall not withhold disclosure of
the Lessor's true name and current mailing address.
e) In the event Lessee shall default in the performance of any of the terms or
provisions or covenants of this Lease, in addition to Lessor's rights with
respect to the use and application of the Security Deposit, Lessor may
pursue and enforce any remedies available to Lessor under this Lease and
under applicable law or in equity. Lessee agrees in the event said Security
Deposit or any portion thereof is applied by Lessor to cure any default of
Lessee under this Lease, the Lessee will promptly pay to Lessor an amount
sufficient to restore the original Security Deposit in full, and its
failure to do so shall be deemed a default under the terms of this Lease.
f) Lessor shall deliver the Security Deposit to the purchaser of Lessor's
interest in the Leased Premises, in the event that such interest be sold;
and thereupon such purchaser shall assume Lessor's responsibility with
respect to said deposit, and Lessee agrees that Lessor shall be released of
all further liability for return or accounting of the Security Deposit.
5. Lessee's General Agreement:
For and in consideration of the leasing of the Leased Premises, the Lessee does
covenant and agree as follows, to-wit: To pay the Rent and all other charges for
the Leased Premises herein provided promptly when due and payable; to pay all
assessments for water and sewer charges levied against the Leased Premises and
all charges for all utilities to the Leased Premises, including heating, cooling
and electricity promptly when due and payable; to pay all charges for telephone
promptly when due and payable; to keep all improvements upon the Leased
Premises, including all sewer connections, plumbing, heating and cooling
appliances, wiring and glass, in good order and repair and to replace same as
the need arises at the expense of said Lessee; to order no repairs at the
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expense of the Lessor, and, at the expiration of this Lease, to surrender and
deliver up the Leased Premises in as good order and condition as when the same
were entered upon, ordinary wear excepted; to use the Leased Premises for no
purposes prohibited by applicable law, statute, covenant, rule, regulation or
ordinance, now in force or hereinafter enacted (collectively, "Laws"),
including, without limitation, ordinances of the City & County of Denver, laws
of the United States or the State of Colorado, A.D.A. (Americans with
Disabilities Act); and for no improper or questionable purpose whatsoever,
including, without limitation, any use which would in any way make void or
voidable any fire or liability insurance policy then in force with respect to
the Property; to keep the sidewalks in front of and surrounding the Leased
Premises free from all litter, dirt, debris, snow, ice, water and obstructions;
to keep the Leased Premises clean and in the condition required by the Laws; to
keep the interior of the Leased Premises such as the windows, floors, walls,
doors, showcases, and fixtures clean and neat in appearance; to remove all trash
and debris which may be found in or around the Leased Premises; to neither
permit nor suffer any disorderly conduct, unreasonable noise or nuisance about
the Leased Premises having a tendency to annoy or disturb any persons occupying
adjacent Leased Premises or neighboring properties, and to commit no waste on
the Leased Premises; to neither permit nor suffer the Leased Premises, or the
walls or floors thereof, to be endangered by overloading; to permit the Lessor
to place a For Rent card upon the Leased Premises at any time sixty (60) days
before the end of this Lease; to surrender and deliver up the possession of the
Leased Premises promptly at the expiration of this Lease, or, in case of
termination of Lessee's possession under this Lease on account of a breach in
the keeping of any one or more of the covenants or agreements hereof, upon three
(3) days' notice. In the event Lessee is required to perform any work or repairs
to the Leased Premises pursuant to this Lease, which work may exceed $3,000 in
the aggregate, Lessee shall provide Lessor with written notification of the
circumstances requiring such work and the scope, anticipated cost and detailed
plans related to such work.
6. Failure of Lessee to Maintain Leased Premises:
If Lessee refuses or neglects to repair or maintain the Leased Premises, as
required hereunder, to the reasonable satisfaction of Lessor as soon as
reasonably possible after written demand, Lessor may, but is not required to,
make such repairs without liability to the Lessee for any loss or damage that
may accrue to Lessee's merchandise, fixtures or other property, or to Lessee's
business by reason thereof, and upon completion thereof, Lessee shall pay
Lessor's cost for making such repairs upon presentation of a xxxx thereof. Such
payment shall be "Additional Rent."
7. Indemnity Agreement:
Lessee agrees to neither hold nor attempt to hold the Lessor, or its agents and
its Manager liable for any injury or damage, either proximate or remote,
occurring through or caused by any repairs, alterations, injury or accident to
the above described Leased Premises, to adjacent premises, other parts of the
Leased Premises not herein demised or any other part of the Property, or by
reason of the negligence or default of the owners or occupants thereof, or any
person, or liable for any injury or damage occasioned by defective electric
wiring, or the breaking, bursting, stoppage or leaking resulting from freezing
or otherwise of any part of the plumbing, roof leak, air conditioning, heating,
fire control sprinkler systems or gas, sewer or steam pipes, or interruption in
the supply of any required services or utilities; and Lessee will indemnify,
save and hold harmless the Lessor from all claims, suits and liabilities for all
loss, expense (including reasonable attorneys' fees and court costs), damage or
injury to persons or property arising from or occurring by reason of its
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occupation or use of the Leased Premises, save and except only such losses or
injuries arising or occurring Lessor's gross negligence or willful misconduct.
The Lessor shall not be liable for any damage to property of the Lessee or of
others located on the Leased Premises, nor for the loss of or damage to any
property of Lessee or of others by theft or otherwise. All property of Lessee
kept or stored on the Leased Premises shall be kept or stored at the risk of
Lessee only, and Lessee shall hold Lessor harmless from any claims arising out
of damage to the same.
8. Repairs to the Leased Premises:
Lessor agrees that all repairs to the structural load-bearing exterior walls and
the roof of the Leased Premises shall be its obligation. Lessee shall notify
Lessor, in writing, of any repairs or maintenance to said structural walls or
roof which may be required, Lessee agrees that all other repairs to and
maintenance of the Leased Premises, including but not limited to interior walls,
doors, and glass, shall be the obligation and responsibility of the Lessee.
9. Right of Entry, Changes and Additions to Buildings:
Lessor hereby expressly reserves the right, at all reasonable times (unless for
the purpose of responding to an actual or apparent emergency, in which case
Lessor may enter at any time), to enter onto the Leased Premises for the purpose
of inspection, repairs, alterations, improvements and additions to the Leased
Premises or the Property, and to show the same to prospective purchasers or
mortgagees of the Property or prospective tenants of the Leased Premises; Lessor
also expressly reserves the right to add extensions or alterations to the
existing building. Lessee shall not, however, contract for or make any
alterations, additions, extensions or construction of any kind to the Leased
Premises, unless expressly approved by the Lessor in writing. Lessee shall pay
for all reasonable costs and fees incurred by Lessor in the review of any such
proposed alterations, additions or construction. All alterations, improvements,
and additions to the Leased Premises will be deemed part of the Property of the
Lessor and shall remain upon and be surrendered with the Leased Premises as a
part thereof without molestation, disturbance or injury at the end of the Lease,
unless Lessor elects to have Lessee remove all or any of such alterations,
improvements or additions and restore the Leased Premises to the condition in
which the Leased Premises were prior to the making of such alterations,
improvements or additions, and in such event Lessee shall perform such removal
and restoration at Lessee's sole cost and expense.
10. Character of Occupancy:
The Leased Premises shall be used and occupied only for general office,
warehouse, and shop relating to apparel screen printing and embroidery. Lessor
makes no representations or warranties that the Leased Premises herein referred
to shall be usable for the purposes intended by the Lessee. Lessee shall, at its
sole expense, procure all permits or licenses required for the transaction of
business at the Leased Premises. No hazardous materials of any nature are
permitted on the Leased Premises.
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11. Insurance:
The Lessee further agrees to provide public liability insurance for bodily
injury and property damage liability with single limit of not less than
$1,000,000.00 per occurrence and a $2,000,000.00 aggregate limit, written with a
company having Best's key rating of A-X (10), or better and shall name Lessor,
Lessor's Manager, and its designees under said insurance policy as additional
insureds. Lessee shall furnish to Lessor a certificate of insurance indicating
that said policy is in full force and effect, that Lessor and Lessor's Manager
has been named as an additional insured and that said policy will not be
canceled unless ten (10) days' prior written notice of the proposed cancellation
has been given to Lessor. In addition to the foregoing, Lessee will at all times
during the term of this Lease and any extensions hereof, procure and maintain
insurance for (a) Lessee's Personal Property and the contents of the Leased
Premises, in an amount equal to the full replacement cost thereof, (b) worker's
compensation and employer's liability insurance in the minimum statutory
amounts, and (c) any other types of insurance reasonably required by Lessor,
upon request.
12. Signs:
No signs or advertisement shall be placed or printed upon any portion of the
Property, including, without limitation, the outer walls, doors, windows, roof
or land area of the Leased Premises, or which are to be viewed from outside of
the Leased Premises, except those signs and locations as the Lessor shall
approve in writing prior to installation, which approval may be withheld,
conditioned or delayed by Lessor in its sole discretion.
13. Replacement of Building:
In the event the Leased Premises or a portion thereof shall become un-tenantable
on account of the damage by fire, act of God, or other casualty, Lessor shall be
given the option to correct the deficiency or condition which has rendered the
Leased Premises un-tenantable. Within thirty (30) days after receipt of written
notice from Lessee as to the damage to the property, Lessor shall notify Lessee
in writing as to whether or not it elects to repair the same. If, in the opinion
of the Lessor, it is not feasible to repair or rebuild the same, then, and in
that event, the Lessor shall have the right to terminate this Lease in its sole
discretion. In the event Lessor elects to repair the Leased Premises, it shall
have hundred eighty (180) days from the date of its notice to Lessee to effect
such repairs. During the period from Lessor's receipt of notice from Lessee of
damage to the demised Leased Premises until the Leased Premises are repaired,
the rent shall xxxxx upon only that portion of the Leased Premises that is
un-tenantable, except that if the Leased Premises become un-tenantable due the
actions of the Lessee or its agents or employees, the rent shall continue in
full force and effect and shall not xxxxx. Lessor shall not in any case be
liable for any loss of profits or income occasioned to Lessee during such
period. In the event said repair has not been completed within the period
specified, then Lessee may have the option to cancel the Lease. If either the
Lessee or the Lessor terminates this Lease as above provided in this paragraph,
any monies due and owing to the Lessor at that date shall be paid by the Lessee
to the date that Lessee vacates the Leased Premises, and all further obligations
on the part of both parties hereto (except those which expressly survive
termination hereof) shall cease and Lessor shall incur no obligation whatsoever
from the termination of said Lease.
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14. Holdover Agreement:
If after the expiration of the term of this Lease, Lessee shall remain in
possession of the Leased Premises and continue to pay Rent without any express
written agreement as to such holding over, then such holding over shall be
deemed and taken to be a holding over upon a tenancy from month to month at a
monthly rental equivalent of 150% of the current Minimum Rent hereinabove set
forth, such payments to be made, together with Additional Rent and all other
Lessee obligations as hereinabove provided. In the event of such holding over,
all terms of the Lease as herein set out are to remain in full force and effect
on said month to month basis.
15. Bankruptcy:
It is further agreed between the parties hereto that, if Lessee or any guarantor
of this Lease shall be declared insolvent or bankrupt, or if any assignment of
the Lessee's or any guarantor's property shall be made for the benefit of the
creditors or otherwise, or if the Lessee's leasehold interest herein shall be
levied upon under execution, or seized by virtue of any writ of any court of
law, or a trustee in bankruptcy, or a receiver be appointed for the property of
the Lessee or any guarantor, whether under operation of the state or the federal
law, then and in any such case, the bankruptcy trustee or the Lessee as
debtor-in-possession, shall be deemed to have rejected this Lease, and the
Lessor may, at its option, and in addition to any other remedy available to
Lessor hereunder or at law or in equity, immediately, with or without notice
(notice being expressly waived), declare a default hereunder by Lessee and/or
terminate Lessee's right to possession under this Lease and immediately take
possession of the Leased Premises without the same working any forfeiture of the
obligation of the Lessee hereunder to pay Minimum Rent and other charges due and
to become due under this Lease.
16. Subordination:
Lessee agrees that this Lease, and every right of Lessee hereunder, is and shall
be, at all times, subject and subordinate to the lien of any and all deeds of
trust and mortgages which Lessor or its assigns shall make covering all or any
portion of the Property, including, without limitation, the Leased Premises and
to any and all advances to be made thereunder and to the interest thereon;
provided, however, that regardless of any sale of the Leased Premises under any
deeds of trust or mortgages recorded after the date hereof, so long as Lessee
performs all covenants and conditions of this Lease and continues to pay Rent to
whomsoever may be lawfully entitled to same, this Lease and Lessee's possession
thereunder shall not be disturbed by the mortgagee or anyone claiming under or
through such deeds of trust or mortgages. The provisions of this Section shall
be self-operative and no further instrument of subordination shall be required,
nevertheless, Lessee agrees to promptly (in any event within five calendar days
of such request) execute any and all instruments in writing which may be
required or requested by Lessor to subordinate Lessee's rights to the lien of
such deeds of trust or mortgages, subject to the terms of this paragraph.
Lessee's failure to timely comply with the requirements in this Section will
constitute a default by Lessee, and in such event, Lessee hereby grants Lessor a
power of attorney coupled with an interest to act as Lessee's attorney in fact
for the purposes of executing whatever documents are necessary or desirable to
evidence such subordination.
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17. Estoppels; Financial Statements:
Lessee shall at any time and from time to time, upon not less than ten (10)
days' prior written notice from Lessor, deliver to Lessor an estoppel
certificate certifying in writing certifying the Lease is in full force and
effect and is unmodified (or if there have been modifications, stating the
modifications), the dates to which rent and other charges are paid, that there
are no charges, liens, claims or offsets against Rent, the Rent is no prepaid
for more than one month in advance, setting forth any uncured defaults on the
part of the Lessor or Lessee hereunder, and any other matters as may reasonably
be required by Lessor, Lessor's mortgagee, or any potential purchaser of the
Property or their proposed lender(s), it being intended that any such estoppel
certificate will be certified to and relied upon by such parties. Lessee shall
at any time and from time, upon not less than ten (10) days' prior written
notice from Lessor deliver to Lessor complete financial statements for Lessee
(including a balance sheet accurate within the previous ninety (90) days and an
income statement for at least the past twelve (12) months) certified to be
accurate by the Lessee, and prepared in accordance with generally accepted
accounting standards; provided that Lessor shall have no right to ask for such
financial statements unless Lessor is, in good faith, attempting to sell or
obtain financing on the building, and the potential purchaser or lender has
requested financial information on the status of the Lessees in the property,
and Lessee hereby grants Lessor permission to deliver such financial statements
to any potential purchaser or its lender. If the obligations of Lessee under
this Lease are personally guaranteed by any other party, such other party agrees
that he/she/it shall be obligated to provide the same sort of estoppel
certificate and/or financial statements as required of Lessee in this paragraph.
Subject to the foregoing, any financial information provided by Lessee to Lessor
shall be held in strict confidence by Lessor. Lessee's failure to deliver any
information required in this Paragraph will be a default by Lessee.
Notwithstanding the foregoing, in the event Lessee does not execute the estoppel
certificate required under this Paragraph, Lessee hereby grants Lessor a power
of attorney, coupled with an interest, to act as Lessee's attorney in fact for
the purposes of executing and delivering such certificate.
18. Default of Lessee:
The Lessee further covenants and agrees that, if Lessee fails to pay, when due,
the Rent or any other amounts payable hereunder, or any part thereof, or in case
of a breach of any of the covenants, obligations or agreements herein, or if the
estate or any ownership interest whatsoever of Lessee (including, but not
limited to, membership and partnership interests and stocks) is transferred,
assigned or sold to or passes to or devolves upon any other person, entity or
party, Lessor may terminate this Lease and/or terminate Lessee's right to
possession of the Leased Premises under this Lease, and after the expiration of
three (3) days from the date of service of a written notice to that effect,
Lessor will be entitled to the possession of the Leased Premises. If the Lessee
shall refuse to surrender and deliver up the possession of the Leased Premises,
after the service of said notice, then and in that event, the Lessor may,
without further notice or demand, enter into and upon the Leased Premises, or
any part thereof, and take possession thereof and repossess the same as of the
Lessor's former estate, and expel, remove and put out of possession the Lessee,
using such help, assistance and force in so doing as may be needful and proper,
without being liable for prosecution or damages therefore, and without prejudice
to any remedy allowed by law available in such cases. In the event this Lease is
terminated, Lessor will be entitled to recover against Lessee as damages for
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loss of the bargain and not as a penalty, an aggregate sum which, at the time of
such termination, represents the excess, if any, of the aggregate of the Rent
and all other sums payable by Lessee hereunder that would have accrued for the
balance of the term over the aggregate rental value of the Leased Premises (such
rental value to be computed on the basis of a lessee paying not only a rent to
Lessor for the use and occupation of the Leased Premises, but also such other
charges as are required to be paid by Lessee under the terms of this Lease) for
the balance of such term, both discounted to present worth at the rate of eight
percent (8%) per annum. Alternatively, at the sole option of Lessor, Lessee will
remain liable to Lessor for damages in an amount equal to the Rent and other
sums arising under the Lease for the balance of the term had the Lease not been
terminated, less the net proceeds, if any, from any subsequent reletting after
deducting all expenses associated therewith. This paragraph shall be
supplemental to any other Sections herein which provide for Lessor's remedies.
Taking of possession by Lessor, or Lessor's service of an eviction demand shall
not constitute an election by Lessor to terminate this Lease, unless expressly
so stated in writing. All remedies stated herein are in addition to and
cumulative with all other remedies provided by law and equity.
No failure by Lessor to insist upon the strict performance of any agreement,
term, covenant or condition hereof or to exercise any right or remedy consequent
upon a breach thereof, and no acceptance of full or partial Rent during the
continuance of any such breach, shall constitute a waiver of any such breach of
such agreement, term, covenant or condition. No agreement, term, covenant or
condition hereof to be performed or complied with by Lessee, and no breach
thereof, will be waived, altered or modified except in writing provided by
Lessor in its sole discretion.
19. Vacating During Term; Ongoing Business Operations:
If the Lessee shall vacate the Leased Premises before the end of the term of
this Lease as a result of voluntary abandonment, eviction, court order or any
other reason, or shall be in default under any of the terms or provisions of
this Lease, the Lessor may at its option and without notice enter the Leased
Premises, remove any signs and property of the Lessee therefrom, and relet the
Leased Premises or any part thereof as it may see fit without such retaking
voiding or terminating this Lease, and for the purposes of such reletting, the
Lessor is authorized to make any repairs or changes in or to the Leased
Premises, at the expense of the Lessee (which shall be payable to the Lessor
upon demand), as may be necessary or desirable for the purpose of such
reletting, and if a sum shall not be realized from such reletting to equal the
monthly rental reserved and stipulated herein to be paid by the Lessee plus all
other costs and expenses associated with such default, vacation and/or reletting
(including, without limitation, attorney's fees, the cost of preparing the space
for reletting and real estate commission), the Lessee will pay such deficiency
each month upon demand therefore, and if suit is filed to collect any monies due
from the Lessee under this Lease, reasonable attorney's fees shall be assessed
as part of the judgment. In addition, if Lessee is in default, Lessor may, at
its option, obtain judgment for the Rent and other charges past due under this
Lease and to become due for the balance of the remaining Lease term (in which
case, if the Leased Premises is then relet, the monies from the reletting shall
be applied to the costs and expenses associated with the default and reletting,
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and then applied to the judgment). Regardless of any default or termination of
Lessee's possession, Lessee shall be liable for the full term of this Lease, as
originally demised, unless Lessor expressly terminates the Lease in writing.
Lessee hereby waives his/her/its right to trial by jury in any civil proceeding
involving the enforcement of this Lease. Instead, all such trials shall be to a
court without a jury.
20. Assignment and Subletting:
Lessee shall not assign or mortgage this Lease in whole or in part, nor sublet
all or any part of the Leased Premises without the prior written consent of the
Lessor, which consent may be withheld, conditioned or delayed in Lessor's sole
and absolute discretion. Any assignment or subletting without the prior written
consent of Lessor will be a default hereunder by Lessee and will be void ab
initio and will confer no rights upon any third party, notwithstanding the
Lessor's acceptance of payment from any purported assignee/sublessee. In the
event the Leased Premises are sublet by the Lessee, or this Lease is assigned or
mortgaged, the Lessee will remain liable under the terms of this Lease,
including all modifications and alterations thereof and shall not be released
from the performance of any terms, covenants and conditions contained herein.
Lessor and any assignee have no obligation to obtain the previous Lessee's
approval before making any such modifications or alterations to this Lease, and
the previous Lessee's obligations shall not be reduced as a result of the
failure to obtain its approval. Lessee shall pay all reasonable costs and fees
(including, without limitation, attorneys' fees) incurred by Lessor in reviewing
and negotiating any such proposed assignment or subletting, regardless of
whether the assignment or subletting is eventually consummated. Lessee waives
all claims of any kind, including, without limitation, all claims for damages
resulting from Lessor's failure to consent to any such assignment or subletting.
21. Lien of Lessor:
Lessee hereby grants to the Lessor a lien upon all furniture, fixtures,
equipment, leasehold improvements, inventory, merchandise and all other property
belonging to the Lessee and located on or within the Leased Premises at any time
during the Lease term (collectively, the "Personal Property"), to secure the
performance of the Lessee's obligations under this Lease, said lien to be prior
to any other lien on such property except a lien in favor of the seller of such
property to secure the unpaid purchase price thereof. This Lease is intended as
and constitutes a security agreement within the meaning of the Uniform
Commercial Code ("UCC"). This Lessor's lien may be foreclosed in the same manner
as a financing statement under the UCC and common law of the State of
StateplaceColorado, and the filing of this Lease and/or a financing statement in
accordance with the UCC shall constitute full lawful notice of this lien. If the
Lessor also has a lien on such property, or any portion thereof, by virtue of a
financing statement or any other instrument, or by operation of law, the lien
under this Lease shall be in addition thereto and the Lessor shall have
alternative remedies at its option. Lessee hereby appoints Lessor as its agent
to sign all security agreements and/or financing statements reasonably necessary
or proper for filing with the appropriate county and the Colorado Secretary of
State in order to perfect this lien.
22. Surrender of Possession:
Lessee agrees to deliver up and surrender to Lessor possession of the Leased
Premises, including, without limitation, all plumbing, wiring, sewer
connections, lighting fixtures, glass, fixtures, walls, ceilings, floors, and
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appurtenances at the expiration or termination of this Lease or any extension
hereof, by lapse of time or otherwise, in as good order and condition as when
possession was taken by the Lessee under this Lease, or if the Lessee took
possession of the Leased Premises under any previous Lease(s), when possession
was taken by Lessee under said previous Lease(s), excepting only ordinary wear
and tear. If the Lessee shall fail to remove any items or effects which it is
entitled to remove from the Leased Premises upon the termination of this Lease,
or any extension hereof, for any cause whatsoever, the Lessor, at its option,
may remove the same and store or dispose of the said effects, without liability
for loss or damage thereto, and Lessee agrees to pay to Lessor on demand any and
all expenses incurred in such removal, including the cost of removal of signs
from the windows, making the Leased Premises including, without limitation,
sidewalks, courts or alleyways adjacent thereto, if any, free from all dirt,
litter, debris and obstruction, including court costs, attorneys' fees, storage
and insurance charges on such items or effects for any length of time the same
shall be in the Lessor's possession; or the Lessor, at its option, without
notice, may sell such items or effects, or any of them, at private or public
sale and without legal process, for such price or consideration as the Lessor
may obtain, and apply the proceeds of such sale upon any amounts due under this
Lease from the Lessee to the Lessor, and upon the expense incidental to the
removing, cleaning the Leased Premises, selling said items or effects, and other
expense, rendering the surplus, if any, to the Lessee; provided, however, in the
event the proceeds of such sale or sales are insufficient to reimburse the
Lessor, Lessee shall pay such deficiency upon demand.
23. Legal Costs and Expenses:
Lessee agrees to pay Lessor for all costs and expenses, including, without
limitation, all reasonable attorneys' fees, incurred by Lessor in enforcing this
Lease, including, without limitation, making demands on Lessee, or in any court
action brought by Lessor to enforce the terms hereof or to recover possession of
the Leased Premises (whether or not such court action or actions shall proceed
to judgment), or for the breach of any of the terms, obligations, and conditions
herein contained.
24. Notices:
All notices, demands, requests or other instruments required in this Lease to be
given by Lessee to Lessor shall be in writing and will be made by hand delivery
or sent by certified or registered mail to Lessor at: Xxxxxxx Xxxxx Realty
Company, 000 X Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000. All notices,
demands, requests or other instruments required in this Lease to be given by
Lessor to Lessee shall be in writing and will be made by hand delivery or sent
by certified or registered mail to Lessee at: 0000 X Xxxxxxxxx, Xxxx 0,
Xxxxxxxxx, Xxxxxxxx 00000. All notices will be considered delivered and received
on the same day if delivered by hand and actually received by the receiving
party, or three business days after being deposited in the
country-regionplaceU.S. mail. Notwithstanding the foregoing, any demand for
compliance or possession, or notice of default, shall be deemed to have been
properly delivered to and served on the Lessee, by Lessor, if Lessor (or its
agent) serves the demand and/or notice pursuant to requirements of the Colorado
Forcible Entry and Detainer Statute (specifically, C.R.S. ss. 00-00-000, or any
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future corresponding statute). Lessor is not required to serve or deliver a
demand for compliance or possession, or notice of default, on the Lessee by
certified or registered mail.
25. Mechanic's Liens:
Lessee shall pay all costs for any work done or caused to be done by or on
behalf of Lessee at the Leased Premises on or before such costs are due. The
right of the Lessee, or any person claiming through or under Lessee, to charge,
create or file any mechanic or materialmen liens for labor or material upon or
against Lessor's interest in the Leased Premises or any portion of the Property
is hereby expressly denied. Lessee shall not allow any such lien to be created
or filed. If any lien is filed and not discharged within fifteen (15) days
thereafter, Lessor may contest, settle or pay the same, without regard for its
validity, and Lessee shall pay all costs, fees and monies expended by Lessor in
so doing. Lessee shall not be in default if, within said fifteen days, Lessee
posts a bond or other security reasonably satisfactory to Lessor to insure that
Lessor will not suffer any loss or damage as a result of such lien. Lessee
hereby agrees to indemnify, defend (using counsel of Lessor's choosing) and hold
harmless Lessor of and from all liability, loss, damages, costs or expenses
(including, without limitation, attorneys' fees and court costs), incurred in
connection with any claims of any nature whatsoever for work performed for, or
materials or supplies furnished to or on behalf of Lessee, including, without
limitation, lien claims of laborers, materialmen or others.
26. Condemnation of Leased Premises:
a) If the entire Leased Premises, at any time during the term of this Lease or
any extension thereof, shall be taken by the exercise of a power of eminent
domain or under threat thereof, this Lease shall then terminate as of the
date of title vesting in such proceeding, all rentals shall be paid up to
that date and Lessee shall have no claim against Lessor nor the condemning
authority for the value of the unexpired term of this Lease.
b) In the event of a partial taking of the building or more than 25% of the
Property, which leaves the Leased Premises unfit for the normal and proper
conduct of the business of the Lessee, then the Lessee or Lessor shall have
the right, upon written notice to the other party given within 30 days of
such partial taking, to cancel and terminate this Lease, all rentals shall
be paid up to that date, and Lessee shall have no claim against Lessor nor
the condemning authority for the value of any unexpired term of this Lease.
If this Lease shall not be canceled as above provided, it shall continue in
effect and the rental after such partial taking shall be that part of the
rental herein agreed to be paid which the value of the untaken part of the
Leased Premises, immediately after the taking, bears to the value of the
entire demised Leased Premises immediately before the taking. If the Lease
is not terminated after a partial taking, and Lessee's continued use of the
Leased Premises requires alterations and repairs by reason of a partial
taking, the Lessor shall make all reasonable alterations and repairs at its
expense which are necessary because of such partial taking. Until such
alterations and repairs shall have been completed, an equitable abatement
of rent shall be made to Lessee for any portion of the Leased Premises
unfit for occupancy and use in the conduct of Lessee's business for the
period during which the same is unfit for such occupancy and use.
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c) In the event of any condemnation or taking as, whether whole or partial,
Lessee shall not be entitled to any part of the award paid for said
condemnation; Lessor is to receive the full amount of such award, Lessee
hereby expressly waiving any right or claim to any part thereof. Although
all such damages awarded in the event of any condemnation are to belong to
the Lessor, whether such damages are awarded as compensation for diminution
in value of the Leasehold or to the Leased Premises, Lessee shall have the
right to claim and recover from the condemning authority, but not from the
Lessor, such compensation as may be separately awarded or recoverable by
Lessee in Lessee's own right on account of any and all damage to Lessee's
business by reason of the condemnation and for or on account of any cost or
loss to which Lessee might be put in removing Lessee's merchandise,
furniture, fixtures, Leasehold improvements and equipment, but only to the
extent such award to the Lessee does not diminish Lessor's award.
27. Waiver:
The waiver by Lessor of any breach of any term, covenant or condition herein
contained shall not be deemed to be a waiver of such term, covenant or condition
on any subsequent breach of the same or any other term, covenant or condition
herein contained. The subsequent acceptance of Rent hereunder by Lessor shall
not be deemed to be a waiver of any preceding breach by Lessee of any term,
covenant or condition of this Lease, regardless of Lessor's knowledge of such
preceding breach at the time of the acceptance of such Rent. No covenant, term
or condition of this Lease shall be deemed to have been waived by the Lessor,
unless such waiver is in writing duly executed by the Lessor.
28. Taxes and Fire and Hazard Insurance:
During the full term hereof, or any extension thereof, Lessor shall pay the
taxes assessed against the Property. Lessee shall pay to Lessor Lessee's
proportionate share of the amount of any taxes assessed. The term "taxes" shall
mean all real estate taxes, levies and assessments against the Property and
improvements, all personal property taxes, levies and assessments against
personal property owned by Lessor and used in the operation or maintenance of
the building, and all costs and fees incurred by Lessor in challenging any real
estate or personal property taxes, levies and assessments.
Lessor shall provide the fire and hazard building insurance for the term of this
Lease. Lessee agrees to pay the Lessee's proportionate share of the amount in
the cost of insurance premiums.
The term "Lessee's proportionate share" as used in this paragraph shall mean
13.26%.
29. Lessee's Proportionate Share of Costs of Common Area and Facilities:
In addition to any other charges due by Lessee under this Lease, and except as
limited by Section 8 above, the Lessee shall pay to the Lessor Lessee's
proportionate share of the cost of all operating expenses related to the
Property, including, without limitation, all expenses related to the occupancy,
management, operation, maintenance and repair of the Property, and any fees,
costs or assessments incurred in maintaining all common areas and facilities,
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including without limitation all parking areas, access roads, sidewalks,
landscaped space and other space used in common or available for the use in
common with the other Lessees of the building in which the Leased Premises are
located by the Lessee or his customers, employees, agents or other invitees.
Operating and maintaining such areas and facilities shall include without
limitation furnishing exterior and parking area lighting, cleaning, snow
removal, line painting, exterior painting, care of grass, administrative,
maintenance, and management fees, shrubs and plants, payment of water and
sewerage, electricity, gas (or any other types of energy, regardless of its
source), heating, ventilating and air conditioning, communications, cable, and
all other types of utilities and services (collectively, the "Utilities") not
separately metered or contracted for by the lessees at the Property, charges and
general maintenance of all areas and facilities provided by the Lessor for the
common use of the occupants of the Property. The term "Lessee's proportionate
share" as used in this paragraph shall mean 13.26%. Lessor reserves the right to
exercise sole control of the maintenance, repair and operation of the common
areas of the building.
In order to facilitate the collection of Lessee's proportionate share of the
taxes, insurance premiums and costs of common area facilities (collectively, the
"Common Area Costs"), Lessee shall deposit with Lessor on each day that a
monthly installment of Minimum Rent is due, an amount equal to one-twelfth of
the estimated Common Area Costs due or to become due for the current year from
Lessee to Lessor under this Lease, in an amount reasonably estimated by Lessor.
Any difference between the estimated Common Area Costs, or any portion thereof,
and the actual bills for such Common Area Costs, or any portion thereof, shall
be accounted for by Lessor to Lessee after Lessor receives notices of such
actual and final Common Area Costs, or the applicable portion thereof,
applicable to such year from the appropriate taxing authority or creditor. If
the estimated amount paid by Lessee is less than the actual amount due from
Lessee, Lessee shall pay the balance due to Lessor within ten days after written
demand therefore. If the estimated amounts paid by Lessee are more than the
actual amounts due, the excess shall be applied by Lessor to the estimated
amounts due from Lessee for the next following year; provided that, if this
Lease has been terminated, Lessor shall refund the balance to Lessee or Lessee's
account in the same manner and under the same conditions applicable to the
Security Deposit. In no event shall any reduction in the Common Area Costs or
any portion thereof, reduce or constitute a credit against the amount of Minimum
Rent payable by Lessee.
In the event the Lessee, in Lessor's sole discretion, uses excessive Utilities
which are not separately metered, or any amount thereof beyond the average of
each other lessee at the Property, then Lessor may, but is not obligated to,
make adjustments to Lessee's proportionate share for such Utilities and/or
require such Utilities to be separately metered or sub-metered and charged
directly to the Lessee, whether through reimbursement to Lessor, or directly
invoiced to Lessee therefor, and Lessee will be solely responsible for all costs
and expenses associated therewith, including the installation and maintenance of
such meters or sub-meters.
30. Lessee's Obligation:
If Lessee fails to perform any of its obligations under this Lease, Lessor may
(but shall have no obligation to) perform the same for the account and at the
expense of Lessee, but only after fifteen days' prior written notice to Lessee,
or without notice if in Lessor's sole opinion an emergency exists. Lessee shall
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immediately pay to Lessor any costs, fees and expenses incurred by Lessor in
performing Lessee's obligations hereunder.
31. Environmental Provisions and Mold Notification:
a) Lessee shall keep and maintain the Leased Premises in compliance with and
shall not cause or permit the Leased Premises to be in violation of any
federal, state, or local Laws, ordinances or regulations relating to
environmental conditions on, under or about the Leased Premises, including
but not limited to, soil and groundwater conditions. Lessee shall not use,
generate, manufacture, store or dispose of on, under or about the Leased
Premises or transport to or from the Leased Premises any Hazardous
Materials. "Hazardous Materials" are any flammable, explosive, radioactive,
toxic, or other related materials, including but not limited to hazardous
or toxic substances or other similar terms as defined or designated as such
by any Laws, including, without limitation, in the Comprehensive
Environmental Response and Liability Act of 1980, 42 U.S.C. 9601, et seq.
Lessee hereby agrees to indemnify and hold harmless Lessor, its officers,
directors, agents, and employees from and against any and all claims,
losses, damages, liabilities, fines, penalties, charges, administrative,
and judicial proceedings and orders, judgments, remedial action
requirements, enforcement actions of any kind, and all costs and expenses
incurred in connection therewith (including but not limited to attorneys'
fees and expenses), arising directly or indirectly, in whole or in part,
out of any activity carried on or undertaken on or off the Leased Premises,
whether by Lessee or any employees, agents, contractors, or subcontractors
of Lessee, or by any third persons at any time occupying or present on the
Leased Premises, in connection with the handling, treatment, removal,
storage, decontamination, cleanup, transport, or disposal of any Hazardous
Materials at any time located or present on, under or about the Leased
Premises. Lessee shall immediately advise Lessor in writing of (i) any and
all enforcement, cleanup, remedial, removal or other governmental or
regulatory actions instituted, completed or threatened pursuant to any
Hazardous Materials Laws; (ii) all claims made or threatened by any third
party against Lessee or the Leased Premises relating to damage,
contribution, cost recovery compensation, loss, or injury resulting from
any Hazardous Materials; and (iii) Lessee's discovery of any occurrence or
condition on any real property adjoining or in the vicinity of the Leased
Premises that could cause the Leased Premises to be subject to any
restrictions on the ownership, occupancy, transferability or use of the
Leased Premises under any Laws. Lessee shall not be responsible for prior
environmental acts or incidence.
b) Lessee is hereby notified that mold can grow if the Leased Premises are not
properly maintained or ventilated. If moisture is allowed to accumulate in
the Leased Premises, it can cause mildew and mold to grow. Lessee will
regularly allow air to circulate in the Leased Premises, keep the interior
of the unit clean, and promptly notify Lessor of any leaks, moisture
problems and/or mold growth. Lessee agrees to maintain the Leased Premises
in a manner that prevents the occurrence of an infestation of mold or
mildew in the unit. Lessee agrees to uphold this responsibility in part by
complying with the following list of responsibilities.
1. Lessee agrees to keep the Unit free of dirt and debris that can harbor
mold.
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2. Lessee agrees to immediately report to Lessor and repair and prevent any
water intrusion, such as plumbing leaks, drips, or sweating pipes.
3. Lessee agrees to report to Lessor any significant mold growth on surfaces
inside the Leased Premises, repair and prevent the same, and to allow the
Lessor to enter the unit and make necessary repairs at Lessee's expense.
4. Lessee agrees to use all reasonable care to close all windows and other
openings in the Leased Premises to prevent outdoor water from penetrating
into the interior of the Leased Premises and to clean and dry any visible
moisture on windows, walls and other surfaces, including personal
property, as soon as reasonably possible. (Note: Mold can grow on damp
surface within 24 to 48 hours)
32. Availability of Utilities:
Lessor does not warrant or guarantee the continued availability of any or all
Utilities services to the Leased Premises. Except as provided in the following
sentence, the interruption, diminution or cessation of such Utilities shall not
be construed as an actual or constructive eviction of Lessee nor shall Lessee be
entitled to any claim for damages or abatement of its obligations under this
Lease on account thereof, unless such interruption is caused by Lessor's gross
negligence. Lessor shall have the right to interrupt the utilities, upon
reasonable prior notice, as may be necessary for repairs, alterations or
maintenance, and if utilities are interrupted by Lessor under this sentence for
a period longer than forty-eight hours, Lessee shall be entitled to an equitable
reduction in Rent based on the period, after the initial forty-eight hours, for
which and the extent to which such Utilities are interrupted. In such event,
abatement and/or equitable reduction shall be Lessee's sole remedy.
33. Lessor's Liability:
The obligations of Lessor under this Lease do not constitute personal
obligations of Lessor, its agents, contractors, principals, trustees, employees,
successors or assigns. Lessee shall look solely to the building and to no other
assets of Lessor for satisfaction of any liability arising out of or in
connection with this Lease and Lessee's occupation of the Leased Premises, and
Lessee will not seek recourse against Lessor or any of its other assets for any
reason whatsoever, including, without limitation, satisfaction of any claims
arising out of or in connection with this Lease or Lessee's use of the Leased
Premises and the building.
In the event Lessor shall fail to perform any of the agreements, obligations,
terms, covenants or conditions hereof, then Lessor will not be in default
hereunder unless and until Lessor has received written notice from Lessee of
such failure and has been provided with an adequate and reasonable time to cure
the same.
34. Late Charges:
a) Lessee hereby acknowledges that late payment by Lessee to Lessor of Rent or
other sums hereunder will cause Lessor to incur costs not contemplated by
this Lease, the exact amount of which will be extremely difficult to
ascertain. Accordingly, if any installment of Rent or other sums due from
Lessee shall not be received by Lessor or Lessor's designee within five (5)
days after the date due, then Lessor may charge Lessee a late charge equal
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to ten percent (10%) of such past due amount or the sum of Twenty-Five and
00/100 Dollars ($25.00), whichever is greater. The parties hereby agree
that such late charge represents a fair and reasonable estimate of the
costs that Lessor will incur by reason of a late payment by Lessee.
Acceptance of late charges, interest (pursuant to (b) below) and past due
Rent by the Lessor shall in no event constitute a waiver of Lessee's
previous or subsequent default with respect to timely payment of Rent or
other sums due, or prevent Lessor from exercising any of the other rights
and remedies granted hereunder concerning Lessee's default.
b) In addition to the foregoing, in the event any installment of Rent or other
sum due from Lessee is not received within five (5) days of the due date,
commencing on the 6th day after the date the sum was due, Lessor may charge
interest at the rate of eighteen percent (18%) per annum on the past due
amount pro-rated accordingly to date of actual payment.
35. Entire Agreement; Recording:
This Lease, together with the exhibits attached hereto, constitutes the entire
agreement between the parties, and this shall not be modified unless the
modification is in writing and signed by both parties. Lessee states that it is
not entering into this Lease based on any representations, warranties, promises
or other inducements other than those set forth in this Lease. Lessee will not
record this Lease or any memorandum hereof.
36. Successors and Assigns:
The obligations and rights under this Lease shall be binding upon and inure to
the benefit of the heirs, administrators, executors, successors and assigns of
the parties; provided, however, that any assignment or subletting by the Lessee
in violation of the terms of this Lease shall not vest any rights whatsoever in
the assignee or sublessee.
37. Substitution of Space:
Lessor reserves the right upon thirty (30) days' prior written notice to Lessee,
and at any time, without any adjustment in the rental rate per square foot
specified in paragraph 3, as adjusted as provided in this Lease, to substitute
for the space described on Exhibit A attached hereto other space in a
substantially comparable location, which substitute space shall be approximately
equal in square feet and in dimensions to the space described on Exhibit A
attached hereto. If Lessor shall exercise the right provided in this Section,
the substituted space shall thereafter be deemed, for the purposes hereof, the
"Leased Premises" hereunder, and a new amended Exhibit A showing the new space
will be substituted for the original Exhibit A attached hereto. Lessor agrees to
pay all reasonable out-of pocket costs associated with the move, including, if
applicable, moving expenses of Lessee incidental to such substitution of the
Leased Premises, expenses of the movement of Lessee's telephone system and the
cost of new stationery.
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38. Brokers:
Lessee represents and warrants that Lessee has not dealt with any broker in the
negotiation of this Lease other than Xxxxxxx Xxxxx Realty, whose commission will
be paid by Lessor. Lessee hereby indemnifies and holds Lessor harmless of and
from any and all loss, costs, damages or expenses (including, without
limitation, all attorneys' fees and disbursements) by reason of any claim of or
liability to any broker or person claiming through Lessee.
39. Time of Essence; Joint and Several Obligations:
Time is of the essence hereof. Notwithstanding the foregoing, wherever there is
provided in this Lease a time limitation for performance by Lessor of any
obligation, the time provided for shall be extended for as long as and to the
extent that delay in compliance with such limitation is due to an act of God,
governmental control or other factors beyond the reasonable control of Lessor.
If there is more than one entity or person which or who are the Lessee
hereunder, the obligations imposed upon Lessee hereunder will be joint and
several.
40. Invalidity; Enforceability; Captions:
If any provision of this Lease is illegal, invalid or unenforceable, under
present or future Laws effective during the term of this Lease, in that event,
it is the intention of the parties hereto that the remainder of this Lease will
not be affected thereby, and that in lieu of each provision of this Lease that
is illegal, invalid or enforceable, there will be added as a part of this Lease
a provision as similar in terms as possible to such illegal, invalid or
unenforceable provision, provided such addition does not increase or decrease
the obligations of or derogate from the rights or powers of either party hereto.
The captions of each paragraph are added as a matter of convenience only and
will be considered of no effect in the construction of any provision of this
Lease.
41. Possession; As-Is:
Lessee accepts the Leased Premises in an "AS-IS" condition. Taking possession of
the Leased Premises by Lessee will be conclusive evidence that the same were in
good condition and repair and in such condition and configuration as agreed upon
between Lessor and Lessee.
42. No Smoking; Pets:
Smoking and pets (except for service animals, or unless a separate pet addendum
is attached) are strictly prohibited in on or around the entire Property.
43. Additional Provisions:
1. Lessee accepts the Premises for occupancy "AS-IS", except Lessor shall, at
Lessor's sole expense:
a) Put all utility systems in good order and repair.
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b) Put all overhead doors in good order and repair and replace the
northernmost overhead door on the east side of the Premises.
c) Provide new flooring and paint in the offices and have a wall dividing
the southernmost office area into one office and a break area
constructed. This work shall be in accordance with Exhibit A.
d) Provide a janitorial cleaning of the Premises.
e) Remove the existing Royal Sanitary Supply exterior signage.
2. Lessee may provide a drain in the warehouse provided any boring into the
floor is completed by a contractor approved by Xxxxxxx Xxxxx Realty
Company.
IN WITNESS WHEREOF, this Lease is hereby executed the day and year first above
written.
LESSOR:
1885 WEST DARTMOUTH, LLC,
A Colorado Limited Liability Company
/s/ Xxxxxxx Xxxxx
----------------------------
By: Xxxxxxx Xxxxx Realty Company, Property Mgr.
LESSEE:
RD&G, LLC,
A Colorado Limited Liability Company
/s/ Xxx Xxxxx
----------------------------
By: Xxx Xxxxx
/s/ Xxxxx Xxxxxxx
----------------------------
By: Xxxxx Xxxxxxx
EXHIBIT A
GUARANTY
THIS GUARANTY is made by Xxxxxxx Xxxxxxx Xxxxx and Xxxxx Xxxxxxx Xxxxxxx
(whether one or more, the "Guarantors"), RD&G, LLC, (the "Lessee"), for the
benefit of 0000 Xxxx Xxxxxxxxx, LLC (the "Lessor"), and Guarantors and Lessee
hereby represent and agree as follows:
1. Lessee has executed a Lease (the "Lease"), dated the day of July, 2013,
for property located at 0000 X Xxxxxxxxx, Xxxx 0, Xxxxxxxxx, Xxxxxxxx 00000 (the
"Property"), and more particularly described in the Lease, with Lessor as the
agent for the owner thereof.
2. This Guaranty is given by the Guarantors to induce the Lessor to enter
into the Lease with the Lessee, and the parties understand that the Lessor would
not enter into the Lease without this Guaranty. It is expressly understood that
if this Guaranty is signed after the execution of the Lease, the Lessor would
not have entered into the Lease without the prior commitment by the Guarantors
to execute this Guaranty. Guarantors represent to Lessor that the Guarantors
will benefit from Lessee's entering into the Lease.
3. Guarantors hereby unconditionally Guarantee to the Lessor the full,
faithful and complete performance by Lessee of each and every obligation,
condition and provision to be performed by the Lessee under the Lease. This
guaranty is a guaranty of full payment and performance and not of collection.
Lessor is not required to proceed with any collection efforts against the Lessee
or any collateral Lessor may have under the Lease before enforcing this
Guaranty.
4. This Guaranty shall be binding upon the Guarantors for the term of the
Lease and for all option periods and/or assignments, renewals or extensions of
the Lease (including all holdover periods), and shall include any and all
modifications of the Lease or amendments thereto at any time made by the Lessee
(its agents, successors or assigns) and Lessor. Lessor and Lessee (its agents,
successors or assigns) shall have no obligation to obtain Guarantors' approval
prior to or provide Guarantors notice of the executing or making any renewals,
extensions, modifications or other amendments to the Lease, and the failure by
Lessor and Lessee (its agents, successors, or assigns) to obtain such approval
or provide notice to Guarantors thereof shall not in any way affect or diminish
the validity and enforceability of this Guaranty.
5. The Guarantors further agree to indemnify, save and hold harmless Lessor
from any and all loss, damage, liability, costs and expense in any way resulting
from or arising out of the failure of the Lessee to perform fully, faithfully
and completely any one or more of the duties, liabilities and/or obligations
under the Lease, or as the same may be modified, amended, renewed and/or
extended.
6. Neither a waiver or delay by the Lessor of any of its rights and/or
remedies under the Lease nor a delay by Lessor under this Guaranty shall affect
the obligations of Guarantors under this Guaranty.
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7. The obligation of the Guarantors hereunder is joint and several amongst
the Guarantors and with the Lessee. Lessor may proceed to enforce this
obligation of Guarantors against Guarantors and Lessee, or either of them,
without first proceeding against the other. The right of Lessor to enforce the
obligations of Guarantors shall not be postponed, delayed or otherwise
prejudiced by the commencement of proceedings (whether voluntary or involuntary)
to have the Lessee named as a debtor under the Federal Bankruptcy Code, or under
any similar state or federal law.
8. Lessee agrees to notify Guarantors of any defaults, or declared
defaults, under the Lease. The failure of Lessor to give notice of any such
defaults shall in no way prejudice Lessor's right to enforce this Guaranty.
9. This Guaranty shall be binding upon the parties hereto, their heirs,
successors, representatives and assigns.
10. If any portion of this Guaranty is deemed to be unenforceable by a
court of competent jurisdiction, this Guaranty shall be deemed to be modified
only to the extent necessary to comply with applicable law.
11. The Guarantors specifically understand and agree that if Lessor
enforces any of its rights hereunder, Guarantors shall be liable to pay all
attorneys' fees and costs incurred by Lessor related thereto.
12. If there is more than one Guarantor or more than one Lessee or Lessor,
the singular shall also be deemed to mean the plural as those terms are used
herein. The release of any one or more Lessee(s) and/or Guarantor(s) shall not
reduce the obligation of the remaining Lessee(s) and Guarantor(s) for all
amounts due or to become due under the Lease.
13. This Agreement shall be construed according to the laws of the State of
placeStateColorado. Each of the Lessee(s) and Guarantor(s) hereby appoints each
other as an authorized agent for service of process and for any demands or
notices related to the Lease or this Guaranty. Therefore, service of process on,
or demands or notices provided to, one of the Lessee(s) or Guarantor(s) will
constitute service upon or notice to all other Lessee(s) and Guarantor(s) under
the Lease and this Guaranty.
14. If Lessor has any interest in any collateral to secure all or any
portion of Lessee's obligation under the Lease, or to secure any other
obligations of Lessee to Lessor, such interest shall be deemed to be held for
the benefit of Lessor only and shall not inure at any time to or for the benefit
of the Guarantors. Lessor shall have no obligation to record, maintain, or
otherwise enforce any such security interest, and Lessor's failure to do so
shall neither diminish the enforceability of this Guaranty nor create any claim
or right of Guarantors against Lessor.
15. Until all of Lessee's obligations under the Lease have been fully
performed, Guarantors (i) shall have no right of subrogation against Lessee, and
hereby waives all such rights, which Guarantors may have by reason of any
payments or acts of performance by Guarantors under this Guaranty, and (ii)
hereby subordinates all of Guarantors claims against Lessee arising out of or in
connection with this Guaranty, the Lease and Lessee's occupation of the Leased
Premises to Lessor's claims against Lessee under the Lease.
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16. This Guaranty may not be changed, modified, discharged or terminated
orally or in any manner other than by an agreement in writing signed by the
Guarantors and the Lessor, or by a court of competent jurisdiction.
17. Nothing contained in this Guaranty shall be deemed to give Guarantors a
right of possession of the Leased Premises at any time.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have signed this Guaranty on the dates indicated
below.
LESSOR:
1885 WEST DARTMOUTH, LLC,
A Colorado Limited Liability Company
/s/ Xxxxxxx Xxxxx
---------------------------
By: Xxxxxxx Xxxxx Realty Company, Property Mgr.
LESSEE:
RD&G, LLC,
A Colorado Limited Liability Company
/s/ Xxx Xxxxx
---------------------------
By: Xxx Xxxxx
/s/ Xxxxx Xxxxxxx
---------------------------
By: Xxxxx Xxxxxxx
GUARANTOR: GUARANTOR:
/s/ Xxxxxxx Xxxxxxx Xxxxx /s/ Xxxxx Xxxxxxx Xxxxxxx
------------------------- --------------------------
By: Xxxxxxx Xxxxxxx Xxxxx By: Xxxxx Xxxxxxx Xxxxxxx
Social Security No.: ###-##-#### Social Security No.: ###-##-####
--------------- ------------
Dated: 7/15/13 Dated: 7/15/13
----------------------------- -----------------------
Home Address: 7276 S. Sundown Cir. Home Address: 7395 X. Xxxxxxx
----------------------- -----------------------
Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
------------------------------------ -------------------------------
Home Telephone No.: (000) 000-0000 Home Telephone No.: (000) 000-0000
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