LEASE AGREEMENT (Office) BRCP GREENWOOD CORPORATE PLAZA, LLC, a Delaware limited liability company (as Landlord) and A SMART MOVE L.L.C., a Colorado limited liability company (as Tenant)
Exhibit 10.24
LEASE AGREEMENT
(Office)
(Office)
BRCP GREENWOOD CORPORATE PLAZA, LLC,
a Delaware limited liability company
(as Landlord)
a Delaware limited liability company
(as Landlord)
and
TABLE OF CONTENTS
Page | ||||||
1. |
LEASE OF PREMISES; BASIC LEASE PROVISIONS | 1 | ||||
2. |
RENT | 2 | ||||
3. |
FINISH WORK FOR AND ACCEPTANCE OF THE PREMISES | 2 | ||||
4. |
OPERATING EXPENSES | 4 | ||||
5. |
SERVICES | 7 | ||||
6. |
SECURITY DEPOSIT | 9 | ||||
7. |
CHARACTER OF OCCUPANCY | 9 | ||||
8. |
ALTERATIONS AND REENTRY BY LANDLORD | 11 | ||||
9. |
ALTERATIONS AND REPAIRS BY TENANT | 11 | ||||
10. |
MECHANICS’ LIENS/PERSONAL PROPERTY TAX | 12 | ||||
11. |
SUBLETTING AND ASSIGNMENT | 13 | ||||
12. |
DAMAGE TO PROPERTY | 16 | ||||
13. |
INSURANCE AND WAIVER OF SUBROGATION | 16 | ||||
14. |
CASUALTY AND RESTORATION OF PREMISES | 17 | ||||
15. |
CONDEMNATION | 18 | ||||
16. |
DEFAULT | 18 | ||||
17. |
SURRENDER; HOLDOVER | 21 | ||||
18. |
SUBORDINATION AND ATTORNMENT | 22 | ||||
19. |
ESTOPPEL | 23 | ||||
20. |
SUBSTITUTED PREMISES | 23 | ||||
21. |
AUTHORITIES/NOTICE | 23 | ||||
22. |
RULES AND REGULATIONS | 24 | ||||
23. |
LIMITATION OF LANDLORD’S LIABILITY | 24 | ||||
24. |
PARKING | 24 | ||||
25. |
BROKERAGE | 24 | ||||
26. |
GENERAL PROVISIONS | 24 | ||||
27. |
DEFINED TERMS; FORCE AND EFFECT | RIDER 1 – PAGE 1 | ||||
28. |
FREE RENT PERIOD | RIDER 1 – PAGE 1 | ||||
29. |
USE OF WORKSTATIONS | RIDER 1 – PAGE 1 |
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LEASE AGREEMENT
(Office)
(Office)
THIS LEASE AGREEMENT (this “Lease”) made as of May 3, 2006 (the “Effective Date”), is between
BRCP GREENWOOD CORPORATE PLAZA, LLC, a Delaware limited liability company, having an office at c/o
Equity West Investment Partners, 0000 Xxxxxxxx Xx., Xxxxx 000, Xxxxxx, XX 00000 (“Landlord”), and A
SMART MOVE L.L.C., a Colorado limited liability company, having an office at 0000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx Xxxxxxx, XX 00000 (“Tenant”).
This Lease is made on the terms and provisions set forth below, and each of the terms,
covenants, provisions, and agreements in this Lease shall be a condition. The parties, for
themselves, their legal representatives, successors, and assigns, agree as follows:
1. LEASE OF PREMISES; BASIC LEASE PROVISIONS.
1.1 Lease of Premises. Landlord leases to Tenant, and Tenant leases from Landlord,
the premises shown on Exhibit “A” attached hereto (the “Premises”), containing
approximately 6,360 rentable square feet, commonly known as Suite 390, and being a part of that
building (the “Building”) and parcel of real property (the “Real Property”) the address of which is
0000 Xxxxxxxxx Xxxxx Xxxxxxxxx, Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000, together with a non-exclusive
right, subject to the provisions hereof, to use all appurtenances thereto, including, but not
limited to, the surface parking area, walkways and other common areas on the Real Property
designated by Landlord for use by tenants of the Building. The Real Property, including common
corridors, lobby area, parking area, landscaped areas, walkways and other areas designated by
Landlord for use by all tenants of the Building are collectively referred to as the “Common Areas”.
The Building is part of a 6-building business park commonly known as Greenwood Corporate Plaza
(the “Business Park”).
1.2 Term. The term of this Lease shall, unless the term shall sooner cease or expire
as provided herein, be approximately sixty (60) months, to commence on the “Lease Commencement
Date” (as defined below), and to end on May 11, 2011, subject to extension as provided in Section
3.2 (the “Lease Term”, which definition shall also include any option term if the option is validly
exercised).
1.3 Base Rent. Tenant shall pay to Landlord, as base annual rent for the Lease Term
(“Base Rent”), as follows:
Annual Rate per | Monthly | |||||||||||
Months of the | Rentable | Installment of | ||||||||||
Lease Term | Square Foot | Annual Base Rent | Base Rent | |||||||||
1
– 3 |
$ | -0- | $ | -0- | $ | -0- | ||||||
4 – 12 |
$ | 13.35 | $ | 84,906.00 | $ | 7,075.50 | ||||||
13 – 24 |
$ | 17.50 | $ | 111,300.00 | $ | 9,275.00 | ||||||
25 – 36 |
$ | 18.00 | $ | 114,480.00 | $ | 9,540.00 | ||||||
37 – 48 |
$ | 18.50 | $ | 117,660.00 | $ | 9,805.00 | ||||||
49 – 60 |
$ | 19.00 | $ | 120,840.00 | $ | 10,070.00 |
1.4
Base Rent is calculated on the basis that the Premises shall contain approximately the rentable
square feet specified above. Tenant shall pay the first monthly installment of Base Rent on the
Effective Date.
1.5 Lease Commencement Date. The Lease Commencement Date shall be the date which is
seven (7) days after Landlord’s Work (as defined below) is Substantially Complete (as defined
below). The Lease Commencement Date is currently estimated to occur on May 12, 2006.
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1.6 Permitted Use. The Premises are to be used for general and executive offices, or
both, and for no other purpose without the prior written consent of Landlord.
1.7 Operating Expenses. As referred to in Section 4.1, Base Operating
Expenses shall be the Operating Expenses for calendar year 2006. Tenant’s Pro Rata Share shall be
6.2%.
1.8 Security Deposit. The security deposit referred to in Section 6 shall be
$44,000.00.
1.9 Parking. Tenant shall be entitled to utilize, on an unreserved basis, 3.6 parking
spaces per 1,000 rentable square feet of the Premises in accordance with and subject to the
provisions of Section 24.
2. RENT. Tenant agrees to pay to Landlord at Landlord’s Rent Address specified in this
Section 2, or to such other persons, or at such other places designated by Landlord,
without any prior demand therefor in immediately available funds and without any deduction or
offset whatsoever, Base Rent, Tenant’s Pro Rata Share and all other amounts due to Landlord
hereunder (collectively, “Rent”), during the Lease Term. Base Rent shall be paid monthly in
advance on the first day of each month of the Lease Term, except that the first installment of Base
Rent shall be paid by Tenant to Landlord on the Effective Date. Base Rent shall be prorated for
partial months within the Lease Term. Unpaid Rent shall bear interest at the Default Rate (as
defined below) from the date due until paid. Tenant’s covenant to pay Rent shall be independent of
every other covenant in this Lease. “Landlord’s Rent Address” shall mean BRCP Xxxxxxxxx Xxxxxxxxx
Xxxxx, XXX, Xxxx. 00000, X.X. Xxx 00000, Xxx Xxxxxxxxx, XX 00000, or such other place as Landlord
may, from time to time, designate in writing. “Lease Year” as used in this Lease shall mean each
12 full calendar month period following the Lease Commencement Date (as such date is determined
under Section 3.2) and each 12-month period thereafter.
3. FINISH WORK FOR AND ACCEPTANCE OF THE PREMISES.
3.1 Condition of Premises.
(a) Tenant acknowledges that except as may be expressly provided herein, if at all, neither
Landlord nor any agent of Landlord has made any representation or warranty with respect to the
Premises, the Building or the Common Areas, or with respect to the suitability of any part of the
same for the conduct of Tenant’s business. Except as expressly set forth in Section 3.1(b)
below, the taking of possession of the Premises by Tenant shall conclusively establish that the
Premises, the Building and the Common Area were at such time in a good and sanitary order,
condition and repair acceptable to Tenant.
(b) Tenant shall notify Landlord in writing within thirty (30) days after the date Tenant
takes possession of the Premises of any defects, if any, in the Premises. Except for defects
stated in such notice, Tenant shall be conclusively deemed to have accepted the Premises “AS IS” in
the condition existing on the date Tenant first takes possession, and to have waived all claims
relating to the condition of the Premises. Landlord shall proceed diligently to correct the
defects stated in such notice unless (i) Landlord disputes the existence of any such defects or
(ii) the defect results from or was aggravated by damage which occurs during Tenant’s move into the
Premises. In the event of any dispute as to the existence of any such defects, the decision of
Landlord’s architect shall be final and binding on the parties. Except as set forth in Section 3.2
below, no agreement of Landlord to alter, remodel, decorate, clean or improve the Premises or the
Building and no representation regarding the condition of the Premises or the Building has been
made by or on behalf of Landlord to Tenant.
3.2 Tenant Finish Work.
(a) Except for Landlord’s Work, Landlord shall not have any obligation to construct or install
any improvements or alterations or to pay for any such construction or installation in or on the
Premises.
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(b) Landlord shall, at Landlord’s sole cost and expense, complete the following work
(collectively, “Landlord’s Work”) in the Premises:
(c) Installation of the Workstations (as defined in Section 29 below); and
(d) Cause Permitted Power to be available to the Workstations.
(e) Landlord’s Work shall be done with such minor variations as Landlord may deem advisable,
so long as such variations will not materially interfere with the permitted use of the Premises.
In order to insure the consistent quality and appearance of the Building, the style, color and
items to be used in the construction and installation of the Landlord’s Work shall be made in
Landlord’s sole discretion. Landlord’s Work shall be deemed to be “Substantially Complete” upon
completion of Landlord’s Work, except for minor insubstantial details of construction, decoration
or mechanical adjustments which remain to be done. Landlord’s Work shall be deemed to be
Substantially Complete notwithstanding a requirement to complete “punch list” or similar corrective
work.
(f) It is anticipated that Landlord’s Work shall be Substantially Complete on May 5, 2006 (the
“Estimated Completion Date”); provided, however, Landlord shall have no responsibility or liability
if Landlord’s Work is not Substantially Complete by the Estimated Completion Date and the
postponement of the actual commencement date and the commencement of Tenant’s obligation to pay
Rent shall be in full settlement of all claims which Tenant may otherwise have by reason of
Landlord’s not being Substantially Complete by the Estimated Completion Date. If as a result of
such delay the Lease Commencement Date occurs on a day other than the first of the month, the Lease
Commencement Date, and the beginning of the Lease Term, shall be further delayed until the first
day of the following month, but Tenant shall take occupancy subject to the terms of this Lease and
shall pay proportionate Rent based on the applicable rate set forth above for such partial month.
In the event of the delay of the Lease Commencement Date, the expiration of the Lease Term shall
also be extended so that it will continue for the full period set forth in Section 1.2. If
Landlord’s Work is not Substantially Complete on the Estimated Completion Date (or the later date
contemplated herein) as a result of delays which are the Tenant’s fault, including but not limited
to delays in Tenant’s submittal of the preliminary space plan for the Premises, Tenant’s approval
of the final plans and specifications and cost estimates for the Tenant Finish Work or Tenant’s
selection of tenant finish items with long-lead delivery times (Landlord agrees to notify Tenant of
any such long-lead items of which Landlord has knowledge) (collectively, “Tenant Delays”), then the
Lease Commencement Date shall be seven (7) days after the Landlord’s Work would have been
Substantially Complete but for Tenant Delays as reasonably determined by Landlord, and the Lease
Term and all of Tenant’s obligations hereunder will be measured from that date.
3.3 Early Access. Subject to the following provisions of this Section 3.3,
Tenant shall have the right to enter the Premises from and after the Effective Date solely for
purposes of installing Tenant’s computer systems, telephone equipment, cabling, furniture, fixtures
and special equipments (but not to operate Tenant’s business), and such early entry for such
purposes shall not constitute occupancy for operation of Tenant’s business and shall not trigger
the Lease Commencement Date. Tenant agrees (a) any such early entry by Tenant shall be at Tenant’s
sole risk, (b) Tenant shall not unreasonably interfere with Landlord or other tenants in the
Building or the Building Park, (c) Tenant shall comply with and be bound by all provisions of this
Lease during the period of any such early entry except for the payment of Base Rent and Tenant’s
Pro Rata Share of Operating Expenses, (d) prior to entry upon the Premises by Tenant and subject to
Section 13.4, Tenant agrees to pay for and provide to Landlord certificates evidencing the
existence and amounts of liability insurance carried by Tenant, which coverage must comply with the
provisions of this Lease relating to insurance, (e) Tenant and its agents and contractors agree to
comply with all Laws (as defined below) required to perform its work during the early entry on the
Premises, and (f) Tenant agrees to indemnify, protect, defend (with counsel selected by Landlord)
and save the Indemnitees (as defined below) and the Premises harmless from and against any and all
liens, liabilities, losses, damages, costs, expenses, demands, actions, causes of action and claims
(including, without limitation, attorneys’ fees and legal costs) (collectively, “Claims”) arising
out of the early entry, use, construction, or occupancy of the Premises by Tenant or its agents,
employees or contractors, except to the extent such Claims arise out Landlord’s gross negligence or
willful misconduct.
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3.4 Commencement Date Memorandum. Promptly following the Lease Commencement Date, Landlord
and Tenant shall execute a commencement date memorandum, in the form of Exhibit “B” attached hereto
(the “Commencement Date Memorandum”), acknowledging that Tenant has accepted possession of the
Premises, and reciting the exact Lease Commencement Date and expiration date of this Lease. The
failure by either party, or both parties, to execute the Commencement Date Memorandum shall not
affect the rights or obligations of either party hereunder. The Commencement Date Memorandum, when
so executed and delivered, shall be deemed to be a part of this Lease.
4. OPERATING EXPENSES.
4.1 Definitions. The following terms shall have the meanings respectively given them
below:
(a) “Base Operating Expenses” means the Operating Expenses for the calendar year set forth in
Section 1.6.
(b) “Rentable Area” means 102,633 square feet of space, which is all rentable space available
for lease in the Building. If there is a change in the aggregate Rentable Area as the result of an
addition to the Building, partial destruction, modification to design or other cause which causes a
reduction or increase on a permanent basis, Landlord’s Accountants shall make such adjustments in
the computations as shall be necessary to reflect any such change.
(c) “Tenant’s Pro Rata Share” means Tenant’s percentage portion of increases in Operating
Expenses as such percentage is specified in Section 1.6. If at any time during the Lease
Term, Tenant leases additional space in the Building, Tenant’s Pro Rata Share shall be recomputed
by dividing the total rentable square footage of space then being leased by Tenant (including the
additional space) by the Rentable Area and the resulting percentage figure shall then become
Tenant’s Pro Rata Share.
(d) “Landlord’s Accountants” means the individual or firm employed by Landlord from time to
time to keep the books and records for the Building and Common Areas and/or to prepare the federal
and state income tax returns for Landlord with respect to the Building and Common Areas, which
shall be certified to by an appropriate representative of Landlord.
(e) “Operating Expenses” means all operating expenses of any kind or nature determined in
accordance with sound accounting practice as applied to the operation and maintenance of first
class office buildings in the greater metropolitan Denver, Colorado area, including without
limitation:
(i) all real property taxes and assessments levied against the Building and/or Common Areas by
any governmental or quasi-governmental authority, including any taxes, impositions, or assessments
of a nature not presently in effect and subsequently levied on the Building and/or Common Areas as
a result of the use, ownership or operation of the Building and/or Common Areas, or for any other
reason, whether in lieu of, or in addition to, any current real estate taxes and assessments;
provided, however, that (A) any taxes levied on the rentals of the Building shall
be determined as if the Building were Landlord’s only property and, (B) in no event shall “taxes or
assessments” include any net federal or state income taxes levied or assessed on Landlord unless
such taxes are a specific substitute for real property taxes (such term shall, however, include
gross tax on rentals); expenses incurred by Landlord for tax consultants and in contesting the
amount or validity of any such taxes or assessments shall be also included in such computations
(all of the foregoing are collectively referred to as “Taxes”);
(ii) Costs of supplies, including, without limitation, costs of relamping all standard
building tenant lighting as required from time to time;
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(iii) Costs in connection with obtaining and providing energy for the Building, including,
without limitation, costs of propane, butane, natural gas, steam, electricity, solar energy and
fuel oils, or coal;
(iv) Costs of water and sanitary and storm drainage services;
(v) Costs of janitorial and security services and of managing and operating any computer which
controls building energy consumption, life safety equipment, fire alarms, and security
access/response, when applicable;
(vi) Costs of maintenance and non-structural repairs to any part of the interior or exterior
of the Building (and its systems and equipment) or Common Areas, including, without limitation,
costs under maintenance contracts and repairs and replacements of equipment used in connection with
such maintenance and repair work;
(vii) Costs of maintenance and replacement of landscaping; and costs of maintenance of parking
areas, common areas, plazas and other areas used by tenants of the Building;
(viii) Insurance premiums, including fire and all-risk coverage, together with loss of rent
endorsement, the part of any claim required to be paid under the deductible portion of any
insurance policy carried by Landlord in connection with the Building or Common Areas or their
component parts (where Landlord is unable to obtain insurance without such deductible from a major
insurance carrier at reasonable rates), public liability insurance, and any other insurance carried
by Landlord on the Building or Common Area or their component parts (all such insurance shall be in
such amounts as Landlord may reasonably determine);
(ix) Labor costs, including wages and other payments, costs to Landlord of workmen’s
compensation and disability insurance, payroll taxes, welfare fringe benefits, and all legal fees
and other costs or expenses incurred in resolving any labor dispute;
(x) Reasonable and customary professional building management fees (provided, however, in no
event shall professional building management fees which are a part of Operating Expenses exceed
five percent (5%) of Landlord’s gross income for the Building Park derived from leasing of space
and parking operations);
(xi) Legal, accounting, inspection and other consultation fees incurred in the ordinary course
of operating the Building and in making the computations required hereunder, but excluding legal
fees related to negotiation and enforcement of leases;
(xii) Costs of capital improvements and structural repairs and replacements made in or to the
Building and/or Common Areas in order to conform to new, or changes in, existing laws, ordinances,
rules, regulations or orders of any governmental or quasi-governmental authority having
jurisdiction over the Building and/or Common Areas effective after the Effective Date (“Required
Capital Improvements”); costs of any capital improvements and structural repairs and replacements
designed primarily to reduce Operating Expenses (“Cost Savings Improvements”); and a reasonable
annual reserve for all other capital improvements and structural repairs and replacements
reasonably necessary to permit Landlord to maintain the Building as a first class office building.
The expenditures for Required Capital Improvements shall be amortized at a market rate of return
over their useful life, as reasonably determined by Landlord’s Accountants. The amortized amount
of any Cost Savings Improvement shall be equal to the annual reduction in Operating Expenses as a
result thereof; and
(xiii) Costs associated with the generator generally serving the tenants of the Building.
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“Operating Expenses” shall not include: (A) costs of any work, including painting, decorating
and tenant-change work, which Landlord performs for any tenant or in any tenant’s space in the
Building other than work of a kind and scope which Landlord would be obligated to furnish to all
tenants whose leases contain a rental adjustment provision and services provision similar to those
herein; (B) costs of repairs or other work occasioned by fire, windstorm or other insured casualty,
except for the deductible portion (which shall be included in Operating Expenses), to the extent of
insurance proceeds received; (C) leasing commissions, advertising expenses, legal fees, and other
costs incurred in leasing space in the Building; (D) costs of repairs or rebuilding necessitated by
condemnation; (E) interest on borrowed money or debt amortization, except as specifically set forth
above; or (F) depreciation on the Building.
4.2 Adjustment Mechanism.
(a) As provided below, for each calendar year of the Lease Term (including the calendar year
in which the Lease Term commences) Tenant shall pay to Landlord Tenant’s Pro Rata Share of the
amount of the increase in the Operating Expenses for the calendar year just completed over Base
Operating Expenses and shall also pay to Landlord monthly during each calendar year following the
year in which the Lease Term commences, an estimate of Tenant’s Pro Rata Share of the amount by
which actual Operating Expenses attributable to the calendar year during which such amounts are
paid will exceed the Base Operating Expenses. As soon as practicable after the end of each
calendar year during the Lease Term, beginning with the end of the calendar year in which the Lease
Term commences, Landlord shall submit to Tenant a statement setting forth: (a) the amount of the
increase, if any, in the amount of Tenant’s Pro Rata Share for the calendar year just completed
over Base Operating Expenses; and (b) for each calendar year following the year in which the Lease
Term commences, the difference, if any, between the amount of Tenant’s actual Pro Rata Share of the
Operating Expenses for the calendar year just completed and the estimated amount of Tenant’s Pro
Rata Share of the increases paid for that year. Each statement shall also set forth the amount of
the estimated increases in Operating Expenses over Base Operating Expenses for the new calendar
year computed in accordance with the foregoing. To the extent that the amount of Tenant’s Pro Rata
Share of actual increases for the period covered by such statement is higher than Tenant’s payments
(if any) of its Pro Rata Share of the estimated increases for the calendar year just completed,
Tenant shall pay to Landlord the difference within 30 days following receipt of the statement from
Landlord. If, however, the amount of Tenant’s Pro Rata Share of the actual increases for the
period covered by the statement is less than the amount Tenant actually paid during the calendar
year just completed, Landlord shall credit the difference against the Tenant’s estimated payment
obligation for such Operating Expenses for the current year, and in respect of credits attributable
to the last Lease Year, Landlord shall remit such excess amount to Tenant within thirty (30) days
of the date of expiration of this Lease. Until Tenant receives each such statement, Tenant shall
continue to pay the amount required for the prior year, but Tenant shall commence payment to
Landlord of the monthly installments of such estimates on the basis of the statement beginning on
the first day of the month following the month in which Tenant receives such statement. Tenant
shall also pay to Landlord or deduct from the rent, as the case may be, the difference, if any,
between the monthly installments of rent, so adjusted, for the new year and the monthly
installments of rent actually paid during the new year.
(b) Tenant’s obligation with respect to payment of its Pro Rata Share of increases shall
survive the expiration or early termination of this Lease and Landlord shall have the right to
retain the Security Deposit, or so much of it as it deems necessary, to secure such payment
attributable to the year in which this Lease terminates. If this Lease is in effect for less than
a full calendar year during the first or last calendar year of the Lease Term, Tenant’s Pro Rata
Share for such partial year shall be calculated by proportionately reducing the Base Operating
Expenses to reflect the number of months in such year during which this Lease was in effect (the
“Adjusted Base Operating Expenses”), and the Adjusted Base Operating Expenses shall then be
compared with the actual Operating Expenses for that partial year to determine the amount, if any,
of any increases in the actual Operating Expenses for such partial year over the Adjusted Base
Operating Expenses.
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(c) Tenant shall have the right within 60 days after a statement of actual Operating Expenses
for a particular calendar year has been rendered by Landlord, upon notice to Landlord, at Tenant’s
sole cost, to examine Landlord’s books and records relating to the determination of those Operating
Expenses. Unless Tenant objects to the resulting rental adjustment within the 60-day period, the
statement and adjustment shall be deemed conclusive.
(d) In computing increases, any special assessments shall be deemed payable in such number of
installments as permitted by law, whether or not actually so paid. If the Building has not been
fully assessed as a completed structure, then for the purposes of computing the Operating Expenses
for any adjustment herein, Taxes shall be adjusted by Landlord as of the date on which the
adjustment is to be made to reflect full completion of the Building including installation of
tenant finish work for all Rentable Area. If any lease entered into by Landlord with any tenant in
the Building is on a so-called “net” basis, or provides for a separate basis of computation for any
Operating Expenses, then, to the extent that Landlord’s Accountants determine that an adjustment
should be made in making the computations herein, Landlord’s Accountants shall be permitted to
modify the computation of Base Operating Expenses, Rentable Area, and Operating Expenses for a
particular Lease Year in order to eliminate or otherwise modify any such expenses which are paid
for in whole or in part by such tenant. In making the computations above Landlord’s Accountants
shall also be permitted to make such adjustments and modifications to the provisions of this
Section as shall be reasonably necessary to achieve the intention of the parties. If the Rentable
Area is not fully occupied during a Lease Year, Landlord’s Accountants shall reasonably adjust
those Operating Expenses which are affected by the occupancy rates for that Lease Year, or portion
thereof, as the case may be, to reflect full occupancy.
(e) The Rentable Area, the Base Rent, and Tenant’s Pro Rata Share may be appropriately
recalculated and adjusted in the event that the Building and/or Premises are measured upon
completion and it is determined that the square footage of the Building and/or Premises differs
from those figures set forth in Section 1 of this Lease.
5. SERVICES.
5.1 Landlord’s General Services. Subject to Section 5.4 below, Landlord
agrees, without charge except as provided in this Lease, and in accordance with those standards
prevailing from time to time for the Building: (a) to furnish running water at those points of
supply for general use of tenants of the Building, heated and cooled air, electrical current,
janitorial services and such maintenance as Landlord reasonably deems necessary for all Common
Areas; (b) to furnish, during Ordinary Business Hours (as defined below) such heated or cooled air
to the Premises as may, in the reasonable judgment of Landlord, be required for the comfortable use
and occupancy of the Premises, provided that the recommendations of Landlord’s engineer regarding
occupancy and use of the Premises are complied with by Tenant, and cooled air is used only for
standard office use; (c) if the Building is equipped with elevators, to provide non-exclusive use
of a passenger elevator for 24 hour access to and from the Premises (with at least one such
elevator being available at all times except in the case of emergencies or repair); (d) to provide
janitorial services for the Premises (including such window washing of the outside of exterior
windows as may, in the judgment of Landlord, be reasonably required), but unless and until Building
standard changes, such janitorial services will be provided after business hours only on Monday
through Friday, excluding Legal Holidays; and (e) to cause electric power to be supplied to the
Premises for building standard fluorescent lighting and for general purpose 120 volt single-phase
plug-in power for ordinary office usage, but in any event, the combination of both are not to
exceed 5 xxxxx per useable square foot per National Electric Code connected load requirements
(“Permitted Power”). “Ordinary Business Hours” shall be 7:00 a.m. to 6:00 p.m. Monday through
Friday and 8:00 a.m. to 12:00 p.m. on Saturdays, Legal Holidays excepted. “Legal Holidays” shall
mean New Year’s Day, Presidents’ Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day,
Christmas Day, and such other national holidays as may be established by the federal government.
5.2 Excess and After-Hours Usage. To the extent (a) electric current in excess of
Permitted Power is used for any machinery, equipment or otherwise in the operation of the Premises,
(b) electric current is used in the Premises at times other than Ordinary Business Hours, or (c)
any use of machinery
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or equipment would overload Building facilities (or would result in an imbalance in the HVAC
systems designed for the Building), then, and in each such case, Tenant’s rent may be increased by
Landlord in such amounts as Landlord reasonably determines necessary to cover the increased cost
resulting from such uses, including additional air conditioning costs and other ancillary costs
incurred by Landlord attributable to any such uses (including costs required to make such service
available to the Premises). Such increases shall be paid monthly with the monthly rental
installment. Tenant shall also reimburse Landlord for all costs of modifying the Building HVAC
system and/or extending or modifying any electrical service as Landlord may reasonably determine is
necessary as a result of Tenant’s excess usage. Before installation or use by Tenant of any
equipment other than that which utilizes only Permitted Power, or operation of the Premises for
extended hours on an ongoing basis, Tenant shall notify Landlord of such intended installation or
use, and obtain Landlord’s consent. In addition to the foregoing, Landlord may, at Landlord’s
option, then or at any time thereafter, require Tenant, at Tenant’s sole cost and expense, to
install a check meter to assist in determining the amount by which Tenant’s rent should be
increased. If Tenant desires electric current or heated or cooled air to the Premises during
periods other than Ordinary Business Hours, Landlord will use reasonable efforts to supply such
services, but at the expense of Tenant at Landlord’s standard rate as reasonably established by it
from time to time for such services. Not less than 48 hours prior notice shall be given to
Landlord of Tenant’s desire for these additional services. Tenant shall also pay the cost of
replacing light bulbs or tubes used in all non-standard Building lighting in the Premises.
5.3 Tenant’s Extra Janitorial Services. If Tenant requests janitorial services other
than those standard services provided to other tenants of the Building, Tenant shall separately pay
for such service monthly upon billing by Landlord, or, at Landlord’s option, Tenant shall
separately contract for such services with the same company furnishing janitorial services to
Landlord. Tenant shall have the right, subject to Landlord’s prior written consent and such rules,
regulations and requirements as Landlord may reasonably impose (including, but not limited to, the
requirement that such janitors belong to a trade union), to employ janitors other than those
employed by Landlord to perform such additional services.
5.4 Delays in Furnishing Services. Landlord shall not be liable for failure to supply
heating, air conditioning, elevator, electrical, janitorial, lighting or other services during any
period as long as Landlord is using reasonable diligence to supply such services, or during any
period Landlord is required to reduce or curtail such services pursuant to any applicable laws,
rules or regulations, including utility regulations, it being agreed that such services may be
discontinued, reduced or curtailed (either temporarily or permanently) at such times as may be
necessary by reason of accident, repairs, alterations, improvements, strikes, lockouts, riots, acts
of God, application of applicable laws, rules and regulations, or any other happening beyond the
control of Landlord. In the event of an interruption, reduction, or discontinuance of services
(either temporary or permanent) as set forth above, Landlord shall neither be liable for damages to
person or property as a result thereof nor shall the occurrence of any such event in any way be
construed as an eviction of Tenant, cause or permit an abatement, reduction, or setoff of rent, or
operate to release Tenant from any of its obligations under this Lease. Notwithstanding anything
in this Section 5.4 to the contrary, if the Premises, or a material portion of the
Premises, is made untenantable for a period in excess of five (5) consecutive business days as a
result of an interruption of essential utility services, such as electricity,
telephone/telecommunication service, fire protection or water, that is a direct result of
Landlord’s negligence or willful misconduct, then Tenant shall be entitled to receive an abatement
of Rent payable hereunder during the period beginning on the fifth (5th) consecutive
business day of the service failure and ending on the day the service has been restored;
provided, however, the foregoing conditional abatement of Rent shall not apply if
the interruption of such utility service is a result of Tenant’s negligence, willful misconduct or
breach of this Lease. In no event, however, shall Landlord be liable to Tenant for any loss or
damage, direct or indirect, special or consequential, including loss of business, arising out of or
in connection with the failure of any such utility services. The foregoing provisions regarding
interruption of utility services shall not apply in case of damage to or destruction of the
Premises, which shall be governed by Section 14 of this Lease.
5.5 Notice to Landlord. Tenant shall promptly notify the Landlord (or its
representative) of any accidents or defects in the Building of which Tenant becomes aware,
including defects in pipes, electric wiring, and HVAC equipment, and provide Landlord with prompt
notification of any condition of
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which it becomes aware which may cause injury or damage to the Building or any person or
property therein.
6. SECURITY DEPOSIT. On the Effective Date, Tenant shall deposit with Landlord, and will
keep on deposit at all times during the term of this Lease, the amount set forth in Section
1.7, as security for the payment by Tenant of all rent and other amounts agreed to be paid and
for the performance of all the terms and conditions of this Lease to be performed by Tenant. If
Tenant shall be in default in the performance of any provision of this Lease, Landlord shall have
the right to use the deposit, or so much as is necessary, in payment of any rent or other amounts
in default, reimbursement of expenses incurred by Landlord, and payment of damages incurred by
Landlord by reason of Tenant’s default. In such event, Tenant shall, on written demand of
Landlord, promptly remit to Landlord a sufficient amount to restore the deposit to its original
amount. If the deposit is not utilized, it (or as much thereof as has not been utilized for such
purposes) shall be refunded to Tenant, or to whoever is then the holder of Tenant’s interest in
this Lease, without interest, upon full performance of this Lease by Tenant. Landlord shall have
the right to commingle the deposit with other funds of Landlord and need not keep it in a trust
account. Landlord shall deliver the deposit to the purchaser of Landlord’s interest in the
Premises in the event such interest is sold, and Landlord shall then be discharged from further
liability with respect to it. If claims of Landlord exceed the deposit, Tenant shall remain liable
for the balance of such claims.
7. CHARACTER OF OCCUPANCY.
7.1 Permitted Use. Tenant shall occupy the Premises only for the purpose set forth in
Section 1.5 and for no other purpose;
7.2 Prohibited Uses. Tenant shall not occupy or use the Premises (or permit the use
or occupancy of the Premises) for any purpose or in any manner which: (a) is unlawful or in
violation of any Law or Environmental Law (both as defined below); (b) may be dangerous to persons
or property or which may increase the cost of, or invalidate, any policy of insurance carried on
the Building or covering its operations; (c) is contrary to or prohibited by the terms and
conditions of this Lease or the rules of the Building set forth in Section 22; or (d) would
tend to create or continue a nuisance. As used herein, “Law” or “Laws” shall mean all laws,
ordinances, rules, regulations, other requirements, orders, rulings or decisions adopted or made by
any governmental body, agency, department or judicial authority having jurisdiction over the
Building, the Premises or Tenant’s activities at the Premises and any covenants, conditions or
restrictions of record which affect the Property.
7.3 Compliance with Environmental Laws.
(a) Tenant shall comply with all Environmental Laws pertaining to Tenant’s occupancy and use
of the Premises and concerning the proper storage, handling and disposal of any Hazardous Material
introduced to the Premises, the Building or the Property by Tenant or other occupants of the
Premises, or their employees, servants, agents, contractors, customers or invitees. As used
herein, “Environmental Laws” shall mean all Laws governing the use, storage, disposal or generation
of any Hazardous Material, including the Comprehensive Environmental Response Compensation and
Liability Act of 1980, as amended, and the Resource Conservation and Recovery Act of 1976, as
amended, and “Hazardous Material” shall mean such substances, material and wastes which are or
become regulated under any Environmental Law; or which are classified as hazardous or toxic under
any Environmental Law; and explosives and firearms, radioactive material, asbestos, and
polychlorinated biphenyls. Tenant shall not generate, store, handle or dispose of any Hazardous
Material in, on, or about the Property without the prior written consent of Landlord, which may be
withheld in Landlord’s sole discretion, except that such consent shall not be required to the
extent of Hazardous Material packaged and contained in office products for consumer use in general
business offices in quantities for ordinary day-to-day use provided such use does not give rise to,
or pose a risk of, exposure to or release of Hazardous Material. In the event that Tenant is
notified of any investigation or violation of any Environmental Law arising from Tenant’s
activities at the Premises, Tenant shall immediately deliver to Landlord a copy of such notice. In
such event or in the event Landlord reasonably believes that a violation of Environmental Law
exists, Landlord may conduct such tests and studies relating to
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compliance by Tenant with Environmental Laws or the alleged presence of Hazardous Material
upon the Premises as Landlord deems desirable, all of which shall be completed at Tenant’s expense.
Landlord’s inspection and testing rights are for Landlord’s own protection only, and Landlord has
not, and shall not be deemed to have assumed any responsibility to Tenant or any other party for
compliance with Environmental Laws, as a result of the exercise, or non-exercise of such rights.
Tenant hereby indemnifies, and agrees to defend, protect and hold harmless, Landlord, the
Building’s property manager, any holder of a mortgage and/or deed of trust affecting all or any
portion of the Building (“Mortgagee”), and each of their respective officers, directors, members,
managers, partners, affiliates, employees, agents and representatives (collectively, together with
Landlord, the “Indemnitees”) from any and all loss, claim, demand, action, expense, liability and
cost (including reasonable attorneys’ fees and expenses) arising out of or in any way related to
the presence of any Hazardous Material introduced to the Premises or the Building Complex during
the Primary Lease Term (or any extension thereof) by Tenant or other occupants of the Premises, or
their employees, servants, agents, contractors, customers or invitees. In case of any action or
proceeding brought against the Indemnitees by reason of any such claim, upon notice from Landlord,
Tenant covenants to defend such action or proceeding by counsel chosen by Landlord, in Landlord’s
sole discretion. Landlord reserves the right to settle, compromise or dispose of any and all
actions, claims and demands related to the foregoing indemnity. If any Hazardous Material is
released, discharged or disposed of on or about the Property and such release, discharge or
disposal is not caused by Tenant or other occupants of the Premises, or their employees, servants,
agents, contractors customers or invitees, such release, discharge or disposal shall be deemed
casualty damage under Section 12 to the extent that the Premises are affected thereby; in
such case, Landlord and Tenant shall have the obligations and rights respecting such casualty
damage provided under such Section 12.
(b) Landlord shall comply with all Environmental Laws applicable to the Building other than
those to be complied with by Tenant pursuant to Section 7.3(a) above. Landlord represents
and warrants to Tenant that, to Landlord’s actual knowledge, (i) no Hazardous Materials are stored
by Landlord on, in or under the Building Park in quantities which violate Environmental Laws, and
(ii) the Building Park is not used by Landlord for the storage, treatment, generation or
manufacture of any Hazardous Materials in a manner which would constitute a violation of applicable
Environmental Laws. For purposes of this Lease, the phrase “Landlord’s actual knowledge” shall
mean the current, actual, personal knowledge of Xxxx Xxxx, the Building’s construction manager,
without investigation and without imputation of any other person’s knowledge. The fact that
reference is made to the personal knowledge of named individuals shall not render such individuals
personally liable for any breach of any of the foregoing representations and warranties. Landlord
shall indemnify, protect, defend and hold Tenant harmless from and against any and all orders,
penalties, fines, administrative actions, or other proceedings (collectively, a “Compliance
Obligation”) commenced by any governmental agency including, without limitation, the United States
Environmental Protection Agency, as a result of the existence of any environmental condition in
violation of an Environmental Law that exists as of the Effective Date, on, under or at the
Premises (a “Pre-existing Condition”), except to the extent that such Pre-existing Condition is
caused or aggravated by the act or omission of Tenant or any of Tenant’s employees, agents,
customers, visitors, invitees, licensees, contractors, assignees or subtenants; provided,
however, Tenant shall not be deemed to have caused or aggravated a Pre-existing Condition
from the mere discovery by Purchaser of a Pre-existing Condition at or with regard to the Premises.
The indemnity obligation of Landlord set forth in this Section 7.3(b) is limited to
Compliance Obligations only and shall not include any damages or consequential damages including,
without limitation, any relocation expenses, loss of revenue, or other losses incurred by any
party. The indemnity obligations of Landlord set forth in this Section shall not be binding upon
any Mortgagee acquiring Landlord’s interest in the Premises and/or this Lease pursuant to any
foreclosure proceeding, deed in lieu of foreclosure, or other enforcement action taken pursuant to
a deed of trust or mortgage encumbering the Premises.
7.4 ADA Compliance. Landlord and Tenant acknowledge that the Americans With
Disabilities Act of 1990 (42 X.X.X §00000 et seq.) and regulations and guidelines promulgated
thereunder, as all of the same may be amended and supplemented from time to time (collectively
referred
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to herein as the “ADA”) establish requirements for business operations, accessibility and
barrier removal, and that such requirements may or may not apply to the Premises and the Building
depending on, among other things: (a) whether Tenant’s business is deemed a “public accommodation”
or “commercial facility”, (b) whether such requirements are “readily achievable”, and (c) whether a
given alteration affects a “primary function area” or triggers “path of travel” requirements. The
parties hereby agree that: (1) Landlord shall be responsible for ADA Title III compliance in the
Common Areas (as defined below), except as provided below, (2) Tenant shall be responsible for ADA
Title III compliance in the Premises, including any leasehold improvements or other work to be
performed in the Premises under or in connection with this Lease, (3) Landlord may perform, or
require that Tenant perform, and Tenant shall be responsible for the cost of, ADA Title III “path
of travel” requirements triggered by Tenant Alterations in the Premises, and (4) Landlord may
perform, or require Tenant to perform, and Tenant shall be responsible for the cost of, ADA Title
III compliance in the Common Areas necessitated by the Building being deemed to be a “public
accommodation” instead of a “commercial facility” as a result of Tenant’s use of the Premises.
Tenant shall be solely responsible for requirements under Title I of the ADA relating to Tenant’s
employees.
8. ALTERATIONS AND REENTRY BY LANDLORD.
8.1 No Landlord Obligation. Unless otherwise expressly provided herein Landlord shall
not be required to make any modifications, improvements or repairs of any kind or character to the
Premises during the Lease Term, except such repairs to the base, shell and core of the Building,
the roof, building standard HVAC, electrical and plumbing facilities and Common Areas as may be
deemed necessary by Landlord for normal maintenance operations of the Building and Common Areas (so
long as the need for such repairs is not the result of Tenant’s negligence) and provided such
obligation shall not include the interior surface of exterior walls, windows, doors, or interior
plate glass. Tenant agrees that for the purposes of completing or making repairs or alterations
in any portion of the Building, Landlord may use one or more of the street entrances, the halls,
passageways and elevators of the Building. Landlord shall have no liability to Tenant for any
damage, inconvenience or interference with Tenant’s use of the Premises as a result of performing
any such work.
8.2 Entry by Landlord. Tenant shall permit Landlord to enter the Premises at any time
upon reasonable notice to Tenant to show the Premises for leasing (during the last 180 days of the
Lease Term) or to examine and inspect the same or, if Landlord so elects, to perform any
obligations of Tenant hereunder which Tenant shall fail to perform or to perform such cleaning,
maintenance, janitorial services, repairs, additions or alterations as Landlord may deem necessary
or proper for the safety, improvement or preservation of the Premises or of other portions of the
Building and Common Areas or as may be required by governmental authorities. Any such reentry
shall not constitute an eviction or entitle Tenant to abatement of rent. Landlord shall have the
right at its election to make such alterations or changes in other portions of the Building and
Common Areas as Landlord may from time to time deem necessary and desirable as long as such
alterations and changes do not unreasonably interfere with Tenant’s use and occupancy of the
Premises.
9. ALTERATIONS AND REPAIRS BY TENANT.
9.1 Alterations. Tenant shall not make any alterations in or additions to the
Premises (subsequent to the work in the Premises performed by Landlord in accordance with
Section 3.1), including installation of any equipment or machinery which requires
modification of or additions to any existing electrical outlet or which would increase Tenant’s
usage of electricity beyond Permitted Power (all such alterations being referred to collectively as
“Alterations”), without in each instance first obtaining the prior written consent of Landlord. If
Landlord fails to respond within ten (10) days after Landlord’s receipt of Tenant’s request for
Landlord’s consent, Landlord’s consent shall be deemed granted. As to any Alterations to which
Landlord has consented or has been deemed to have consented, Tenant, at its expense, shall pay all
engineering and design costs incurred by Landlord attributable to the Alterations and obtain all
required governmental permits and certificates, and cause such Alterations to be completed in
compliance therewith and all Laws and all applicable requirements of Landlord’s insurance carriers.
All Alterations shall be performed in a good and workmanlike manner, using new materials and
equipment
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equal or better in quality to the original installations in the Premises. All repair and
maintenance work required to be performed by Tenant pursuant to the provisions of Section
9.2 below, and any Alterations permitted by Landlord pursuant hereto, shall be done at Tenant’s
expense by Landlord’s employees or, with Landlord’s consent, by persons requested by Tenant and
authorized in writing by Landlord; provided, however, if such work is performed by
persons who are not employees of Landlord, Tenant shall pay to Landlord, upon receipt of billing
therefor, the costs for supervision and control of such persons as Landlord may determine to be
necessary (not to exceed four percent (4%) of such costs). If Landlord authorizes persons
requested by Tenant to perform such work, prior to the commencement of any such work, Tenant shall
on request deliver to Landlord certificates issued by insurance companies qualified to do business
in Colorado evidencing that workmen’s compensation, public liability insurance and property damage
insurance (all in amounts, with companies and on forms satisfactory to Landlord) are in force and
effect and maintained by all contractors and subcontractors engaged by Tenant to perform such work.
All such policies shall name Landlord (and any Mortgagee) as an additional insured. Each such
certificate shall provide that the same may not be canceled or modified without 30 days prior
written notice to Landlord and such Mortgagee. Further, Landlord or such Mortgagee shall have the
right to post notices in the Premises in locations which will be visible by parties performing any
work on the Premises stating that Landlord is not responsible for the payment for such work and
setting forth such other information as Landlord may deem necessary. Alterations, repair and
maintenance work shall be performed in a manner which will not unreasonably interfere with, delay,
or impose any additional expense upon Landlord in the maintenance or operation of the Building or
upon other tenants’ use of their premises.
9.2 Repairs and Maintenance. Tenant shall, at Tenant’s expense, keep the Premises
(including, without limitation, the interior surfaces of the ceilings, walls and floors, all doors
and interior windows, and all plumbing pipes, electrical fixtures, furnishings and equipment) in
good order, condition and repair and in accordance with all Laws and Environmental Laws, and in an
orderly state, loss by fire or other casualty or ordinary wear excepted. Subject to Landlord’s
obligation to make repairs in the event of certain casualties as set forth in Section 14,
Landlord shall have no obligation for the repair or replacement of any portion of the interior of
the Premises which is damaged or wears-out during the Lease Term regardless of cause, including,
without limitation, carpeting, draperies, window coverings, interior plate glass, wallcoverings,
painting, or any of Tenant’s property or betterments in the Premises.
9.3 Part of Premises. All Alterations and permanent fixtures installed in the
Premises, including all partitions, paneling, carpeting, drapes or other window covering, and light
fixtures (but not including movable office furniture not permanently attached to the Building),
shall be deemed a part of the real estate and the property of Landlord and shall remain upon and be
surrendered with the Premises without disturbance or injury at the end of the Lease Term, unless
Landlord gives Tenant notice not later than 15 days before the end of the Lease Term to have Tenant
remove all or any of the Alterations, and which event Tenant shall promptly remove at Tenant’s
expense the Alterations specified by Landlord and restore the Premises to their prior condition,
reasonable wear and tear excepted.
10. MECHANICS’ LIENS/PERSONAL PROPERTY TAX.
10.1 Mechanic’s Liens. Tenant shall cause to be paid all costs for work done or
caused to be done by Tenant on the Premises (including work performed by Landlord or its contractor
at Tenant’s request following commencement of the Lease Term) of a character which could result in
liens on Landlord’s interest. Tenant will keep the Premises free and clear of all mechanics’ and
other liens on account of work done for Tenant or persons claiming under it. Tenant agrees to
indemnify and defend Landlord with respect to all liability, loss, damage, cost or expense,
including attorneys’ fees, on account of any claims of any nature whatsoever, including claims or
liens of laborers or materialmen or others, for work performed for or materials or supplies
furnished to Tenant or persons claiming under Tenant. Should any liens be filed or recorded
against the Premises and/or the Building or any action affecting the title thereto be commenced as
a result of such work, Tenant shall cause such liens to be removed of record within 10 days after
Tenant’s receipt of notice from Landlord. If Tenant desires to contest any claim or lien, Tenant
shall furnish to Landlord adequate security of at least 150% of the amount of the claim, plus
estimated costs and interest, or, at Landlord’s option, file a bond and obtain a release of the
lien pursuant to Law. If a final judgment establishing the validity or existence of any such lien
is entered,
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Tenant shall pay and satisfy it at once. If Tenant shall be in default in paying any charge
for which a mechanic’s lien or suit to foreclose the lien has been recorded or filed, and shall not
have given Landlord security as provided above, Landlord may (but without being required) pay such
lien or claim and any costs, and the amount so paid, together with reasonable attorneys’ fees
incurred in connection therewith, shall be immediately due from Tenant to Landlord.
10.2 Tenant or Lease-Specific Taxes. Tenant shall pay all sales and use taxes imposed
as the result of Tenant’s business conducted on the Premises and all personal property taxes
assessed against personal property of Tenant situated thereon during the Lease Term.
11. SUBLETTING AND ASSIGNMENT.
11.1 Assignment and Subletting.
(a) Without the prior written consent of Landlord, which may be withheld in Landlord’s sole
discretion, Tenant may not sublease, assign, mortgage, pledge, hypothecate or otherwise transfer or
permit the transfer of this Lease or the encumbering of Tenant’s interest therein in whole or in
part, by operation of Law or otherwise or permit the use or occupancy of the Premises, or any part
thereof, by anyone other than Tenant, provided, however, if Landlord chooses not to
recapture the space proposed to be subleased or assigned as provided in Section 11.2,
Landlord shall not unreasonably withhold its consent to a subletting or assignment under this
Section 11.1. Tenant agrees that the provisions governing sublease and assignment set
forth in this Section 11 shall be deemed to be reasonable. If Tenant desires to enter into
any sublease of the Premises or assignment of this Lease, Tenant shall deliver written notice
thereof to Landlord (“Tenant’s Notice”), together with the identity of the proposed subtenant or
assignee and the proposed principal terms thereof and financial and other information sufficient
for Landlord to make an informed judgment with respect to such proposed subtenant or assignee at
least forty-five (45) days prior to the commencement date of the term of the proposed sublease or
assignment. If Tenant proposes to sublease less than all of the Rentable Area of the Premises, the
space proposed to be sublet and the space retained by Tenant must each be a marketable unit as
reasonably determined by Landlord and otherwise in compliance with all Laws. Landlord shall notify
Tenant in writing of its approval or disapproval of the proposed sublease or assignment or its
decision to exercise its rights under Section 11.2 within thirty (30) days after receipt of
Tenant’s Notice (and all required information). Tenant shall submit for Landlord’s approval (which
approval shall not be unreasonably withheld) any advertising which Tenant or its agents intend to
use with respect to the space proposed to be sublet.
(b) With respect to Landlord’s consent to an assignment or sublease, Landlord may take into
consideration any factors which Landlord may deem relevant, and the reasons for which Landlord’s
denial shall be deemed to be reasonable shall include, without limitation, the following:
(i) the business reputation or creditworthiness of any proposed subtenant or assignee is not
acceptable to Landlord; or
(ii) in Landlord’s reasonable judgment the proposed assignee or subtenant would diminish the
value or reputation of the Building or Landlord; or
(iii) any proposed assignee’s or subtenant’s use of the Premises would violate Section
7 of the Lease or would violate the provisions of any other leases of tenants in the Property;
(iv) the proposed assignee or subtenant is either a governmental agency, a school or similar
operation, or a medical related practice; or
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(v) the proposed subtenant or assignee is a bona fide prospective tenant of Landlord in the
Property as demonstrated by a written proposal dated within ninety (90) days prior to the date of
Tenant’s request; or
(vi) the proposed subtenant or assignee would materially increase the estimated pedestrian and
vehicular traffic to and from the Premises and the Property.
In no event shall Landlord be obligated to consider a consent to any proposed assignment of
the Lease which would assign less than the entire Premises. In the event Landlord wrongfully
withholds its consent to any proposed sublease of the Premises or assignment of the Lease, Tenant’s
sole and exclusive remedy therefor shall be to seek specific performance of Landlord’s obligations
to consent to such sublease or assignment.
(c) Any sublease or assignment shall be expressly subject to the terms and conditions of this
Lease. Any subtenant or assignee shall execute such documents as Landlord may reasonably require
to evidence such subtenant or assignee’s assumption of the obligations and liabilities of Tenant
under this Lease. Tenant shall deliver to Landlord a copy of all agreements executed by Tenant and
the proposed subtenant and assignee with respect to the Premises. Landlord’s approval of a
sublease, assignment, hypothecation, transfer or third party use or occupancy shall not constitute
a waiver of Tenant’s obligation to obtain Landlord’s consent to further assignments or subleases,
hypothecations, transfers or third party use or occupancy.
(d) For purposes of this Section 11, an assignment shall be deemed to include a change
in the majority control of Tenant, resulting from any transfer, sale or assignment of shares of
stock of Tenant occurring by operation of Law or otherwise if Tenant is a corporation whose shares
of stock are not traded publicly. If Tenant is a partnership, any change in the partners of Tenant
shall be deemed to be an assignment. Notwithstanding anything in this Section 11(d) to the
contrary, Landlord hereby acknowledges that (a) Tenant has completed the filing of a Form SB-1 with
the Securities and Exchange Commission whereby it has indicated its intent to conduct a public
offering of the stock of a related corporate entity into and with which Tenant would merge
(collectively, the “Anticipated Merger”), (b) the Anticipated Merger shall not be deemed to
constitute a transfer requiring the consent of Landlord nor shall the Anticipated Merger, in and of
itself, constitute a default under this Lease, and (c) the corporate entity resulting from the
Anticipated Merger shall thereafter be recognized as Tenant hereunder without further action by
either Landlord or Tenant; provided, however, (i) within ten (10) days after the
effective date of the Anticipated Merger, Tenant shall give written notice to Landlord of the
completion of the Anticipated Merger which notice shall include the full name and address of the
corporate entity resulting from the Anticipated Merger, and a copy of all agreements (if any)
executed between Tenant and the corporate entity resulting from the Anticipated Merger which relate
to this Lease, and (ii) within fifteen (15) days after Landlord’s written request, the corporate
entity resulting from the Anticipated Merger shall execute documents satisfactory to Landlord to
evidence such entity’s assumption of the obligations of Tenant under this Lease.
(e) Notwithstanding anything to the contrary contained in this Section 11 and provided
there is no uncured default that continues beyond any applicable notice and cure period under this
Lease, Tenant shall have the right, without the prior written consent of Landlord, to assign this
Lease to an Affiliate (as defined below) or to sublease the Premises or any part thereof to an
Affiliate, but (i) no later than fifteen (15) days prior to the effective date of the assignment or
sublease, the assignee shall execute documents satisfactory to Landlord to evidence such assignee’s
assumption of the obligations and liabilities of Tenant under this Lease, unless Landlord modifies
or waives such requirement in the case of any assignment which occurs by operation of law (and
without a written assignment) as a consequence of merger, consolidation or non-bankruptcy
reorganization, and the subtenant shall execute documents satisfactory to Landlord to evidence that
the sublease is subject to the terms and conditions of this Lease and that the subtenant shall
perform and be bound by all the terms and conditions of this Lease (except the payment of Rent
hereunder and other obligations which the sublease expressly provides are to be performed by Tenant
as the sublessor) to the extent applicable to the space and period covered by the sublease; (ii)
within ten (10) days after the effective date of such assignment or sublease,
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give notice to Landlord which notice shall include the full name and address of the assignee
or subtenant, and a copy of all agreements executed between Tenant and the assignee or subtenant
with respect to the Premises or part thereof, as may be the case; and (iii) within fifteen (15)
days after Landlord’s written request, provide such reasonable documents or information which
Landlord reasonably requests for the purpose of substantiating whether or not the assignment or
sublease is to an Affiliate. As used herein, “Affiliate” shall mean any Person (as defined below)
which is currently owned or controlled by, owns or controls, or is under common ownership or
control with Tenant. For purposes of this definition, the word “control,” as used above means,
with respect to a Person that is a corporation, the right to exercise, directly or indirectly, more
than fifty percent (50%) of the voting rights attributable to the shares of the controlled
corporation and, with respect to a Person that is not a corporation, the possession, directly or
indirectly, of the power at all times to direct or cause the direction of the management and
policies of the controlled Person. The word “Person” means an individual, partnership, trust,
corporation, firm or other entity.
11.2 Recapture. Except as provided in Section 11.1(d) and (e),
Landlord shall have the option to exclude from the Premises covered by this Lease (“recapture”),
the space proposed to be sublet or subject to the assignment, effective as of the proposed
commencement date of such sublease or assignment. If Landlord elects to recapture, Tenant shall
surrender possession of the space proposed to be subleased or subject to the assignment to Landlord
on the effective date of recapture of such space from the Premises. Effective as of the date of
recapture of any portion of the Premises pursuant to this section, the Base Rent and Tenant’s Pro
Rata Share shall be adjusted accordingly.
11.3 Excess Rent. Tenant shall pay Landlord on the first day of each month during the
term of the sublease or assignment, fifty percent (50%) of the amount by which the sum of all rent
and other consideration (direct or indirect) due from the subtenant or assignee for such month
exceeds: (a) that portion of the Rent due under this Lease for said month which is allocable to the
space sublet or assigned; and (b) the following costs and expenses for the subletting or assignment
of such space: (i) brokerage commissions and attorneys’ fees and expenses, (ii) the actual costs
paid in making any improvements or substitutions in the Premises required by any sublease or
assignment; and (iii) “free rent” periods, costs of any inducements or concessions given to
subtenant or assignee, moving costs, and other amounts in respect of such subtenant’s or assignee’s
other leases or occupancy arrangements. All such costs and expenses shall be amortized over the
term of the sublease or assignment pursuant to sound accounting principles.
11.4 Tenant Liability. In the event of any sublease or assignment, whether or not
with Landlord’s consent, Tenant shall not be released or discharged from any liability, whether
past, present or future, under this Lease, including any liability arising from the exercise of any
renewal or expansion option, to the extent such exercise is expressly permitted by Landlord.
Tenant’s liability shall remain primary, and in the event of default by any subtenant, assignee or
successor of Tenant in performance or observance of any of the covenants or conditions of this
Lease, Landlord may proceed directly against Tenant without the necessity of exhausting remedies
against said subtenant, assignee or successor. After any assignment, Landlord may consent to
subsequent assignments or subletting of this Lease, or amendments or modifications of this Lease
with assignees of Tenant, without notifying Tenant, or any successor of Tenant, and without
obtaining its or their consent thereto, and such action shall not relieve Tenant or any successor
of Tenant of liability under this Lease. If Landlord grants consent to such sublease or
assignment, Tenant shall pay all reasonable attorneys’ fees and expenses incurred by Landlord with
respect to such assignment or sublease. In addition, if Tenant has any options to extend the term
of this Lease or to add other space to the Premises, such options shall not be available to any
subtenant or assignee, directly or indirectly without Landlord’s express written consent, which may
be withheld in Landlord’s sole discretion.
11.5 Assumption and Attornment. If Tenant shall assign this Lease as permitted
herein, the assignee shall expressly assume all of the obligations of Tenant hereunder in a written
instrument satisfactory to Landlord and furnished to Landlord not later than fifteen (15) days
prior to the effective date of the assignment. If Tenant shall sublease the Premises as permitted
herein, Tenant shall, at Landlord’s option, within fifteen (15) days following any request by
Landlord, obtain and furnish to
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Landlord the written agreement of such subtenant to the effect that the subtenant will attorn
to Landlord and will pay all subrent directly to Landlord.
12. DAMAGE TO PROPERTY.
12.1 Waiver of Claims. Tenant shall not hold or attempt to hold the Indemnitees
liable for any injury or damage, either proximate or remote, occurring through or caused by fire,
water, steam, or any repairs, alterations, injury, accident, or any other cause, to any furniture,
fixtures, Tenant improvements, or other personal property of Tenant kept or stored in the Premises
or in other parts of the Building and/or Common Areas or to Tenant’s business or loss of income
from it, whether by reason of the negligence or default of the owners or occupants thereof or any
other person or otherwise, and keeping or storing of all property of Tenant in the Building, Common
Areas and/or Premises shall be at the sole risk of Tenant. Tenant waives all claims with respect
to damage to property or personal injury, except with respect to personal injury claims arising out
of the affirmative negligent acts or intentional misconduct of Landlord or its agents or employees.
Tenant hereby waives any consequential damages, compensation or claims for inconvenience or loss
of business, rents, or profits as a result of such injury or damage, whether or not caused by the
willful and wrongful act of any of the Indemnitees.
12.2 Indemnity.
(a) By Tenant. Subject to provisions of Section 13 below, Tenant agrees to
indemnify, defend, and save the Indemnitees harmless of and from all liability, loss, damages,
costs, or expenses, including attorneys’ fees, on account of claims of third parties (excluding
Tenant, Tenant’s agents or employees) arising from Tenant’s occupancy of the Premises, from the
undertaking of any Alterations or repairs to the Premises, from the conduct of Tenant’s business on
the Premises, or from any breach or default on the part of Tenant in the performance of any
covenant or agreement on the part of Tenant to be performed pursuant to the terms of this Lease, or
from any willful act or negligence of Tenant, its agents, contractors, servants, employees,
customers or invitees, in or about the Premises or the Building or any part of either.
(b) By Landlord. Subject to provisions of Section 13 below, Landlord hereby
indemnifies and agrees to hold Tenant harmless of and from all liability, loss, damages, costs, or
expenses, including attorneys’ fees occurring in the Common Areas, elsewhere in the Building, or
any part thereof, when such injury or damage is directly caused by the negligence of Landlord, its
agents, contractors or employees. Landlord shall not be liable to Tenant for any damage by or from
any act or negligence of any co-tenant or other occupant of the Building, or by any owner or
occupant of adjoining or contiguous property. The indemnity obligations of Landlord set forth in
this Section shall not be binding upon any Mortgagee acquiring Landlord’s interest in the Premises
and/or this Lease pursuant to any foreclosure proceeding, deed in lieu of foreclosure, or other
enforcement action taken pursuant to a deed of trust or mortgage encumbering the Premises.
13. INSURANCE AND WAIVER OF SUBROGATION.
13.1 Landlord’s Insurance. Landlord shall maintain property insurance on the shell
and core of the Building, in such amounts, from such companies, and on such terms and conditions,
including loss of rental insurance, as Landlord deems appropriate. Landlord will not carry
insurance of any kind on Tenant’s furniture and furnishings or on any fixture or equipment
removable by Tenant under the provisions of this Lease or any other improvements installed in the
Premises by or for Tenant, and Landlord shall not be obligated to replace or repair any damage to
them.
13.2 Tenant’s Insurance. Tenant, at its expense, shall maintain throughout the Lease
Term:
(a) “All risk” or Special Form causes of loss insurance on all of Tenant’s property,
improvements and betterments in the Premises including, without limitation, all furniture,
fixtures, personal property, and all tenant finish, on a replacement cost basis;
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(b) “All risk” or Special Form causes of loss insurance covering Business Income in an amount
equal to six-months rent;
(c) A commercial general liability policy, including coverage for claims arising out of death,
bodily injury and property damage, with a combined single limit of not less than $1,000,000 per
occurrence and $2,000,000 aggregate. The aggregate shall apply on a “per location” basis. Such
policy shall be primary and non-contributing with insurance carried by Landlord and the
Indemnitees;
(d) A business auto liability policy for claims arising from owned, hired or non-owed vehicles
in an amount not less than $1,000,000 per accident; and
(e) Workers’ Compensation with statutory limits in accordance with the Laws of the State of
Colorado and Employers’ Liability Insurance with limits of $500,000 for disease each
employee/policy limit.
13.3 Form of Policies. Each policy referred to in Section 13.2 shall satisfy
the following requirements. Each policy shall (a) name Landlord and the Indemnitees as additional
insureds (except business income, business auto, Workers’ Compensation and Employers’ Liability
Insurance), (b) be issued by an insurance company rated “A” or higher by A.M. Best, qualified to do
business in Colorado, (c) provide for deductible amounts which, in no event, shall exceed $50,000
(d) shall provide that such insurance may not be canceled or amended without thirty (30) days’
prior written notice to Landlord (ten (10) days for non-payment), and (e) each policy of
“All-Risks”/Special Form property insurance shall provide that the policy shall not be invalidated
should the insured waive in writing prior to a loss, any or all rights of recovery against any
other party for losses covered by such policies. Tenant shall deliver to Landlord, certificates of
insurance and appropriate endorsements, not less than ten (10) days prior to the Commencement Date
and not less than ten (10) days prior to the expiration date of each policy. The limits of such
insurance shall not, under any circumstances, limit the liability of Tenant hereunder.
13.4 Waiver of Subrogation. Notwithstanding anything to the contrary contained
herein, Landlord and Tenant hereby mutually waive and release their respective rights of recovery
against each other for (a) any loss to its property capable of being insured against by “all
risk”/special form insurance coverage whether carried or not; and (b) all loss, cost, damage or
expense arising out of or due to any interruption of business (regardless of the cause therefore),
increased or additional operating costs or other costs or expenses, whether similar or dissimilar,
which could be insured against under business interruption insurance (whether or not carried).
If required by the insurer, each party shall notify their insurers of these mutual waivers, obtain
at its cost waivers of subrogation and any other special endorsements required by their insurer to
evidence compliance with the aforementioned waiver.
14. CASUALTY AND RESTORATION OF PREMISES.
14.1 If the Premises or the Building are damaged by fire or other casualty so as to render the
Premises wholly untenantable, and if a licensed architect selected by Landlord shall certify in
writing to Landlord and Tenant within 60 days after the casualty that the Premises cannot, with the
exercise of reasonable diligence, be made fit for occupancy within 180 days from the date of the
casualty, then this Lease shall terminate as of the date of such casualty and Tenant shall
thereupon surrender to Landlord the Premises and all interest therein, and Landlord may reenter and
take possession of the Premises and remove Tenant therefrom. Tenant shall pay rent, duly
apportioned, up to the time of such termination. If, however, the damage is such that the
architect shall certify within the 60-day period that the Premises can be made tenantable within
the 180-day period, then, except as provided in Section 14.3 below, Landlord shall repair
such damage with all reasonable promptness.
14.2 If the Premises, without the fault of Tenant, is slightly damaged by casualty, but not so
as to render them wholly untenantable or to require a repair period in excess of 180 days, then
Landlord, after receiving notice in writing of the occurrence of the casualty, shall, except as
provided in Section 14.3 below, cause them to be repaired with all reasonable promptness.
If the estimated repair period as
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established in accordance with the provisions of Section 14.1 above exceeds 180 days,
then the provisions of Section 14.1 shall control even if the Premises are not wholly
untenantable.
14.3 If the Building is materially damaged by casualty so that the estimated repair period
established in accordance with Section 14.1 exceeds 180 days, or if the damage is material
and is not covered by Landlord’s casualty insurance (even if in either instance the Premises may
not be affected, or if affected, can be repaired within the 180 day period), Landlord may, within
60 days of such casualty, in the exercise of its reasonable business judgment, determine not to
reconstruct or rebuild the Building, in which event, upon notice in writing to that effect given by
Landlord to Tenant within the 60-day period, Tenant shall pay the rent and other charges, properly
apportioned up to the date of notice (or the date of the casualty if the Premises is untenantable
by reason of such casualty), and this Lease shall terminate as of such date.
14.4 Provided that the casualty is not due to the fault of Tenant, Tenant’s agents, servants
or employees, Tenant’s rent shall xxxxx during any such period of repair and restoration in the
same proportion that the part of the Premises rendered untenantable bears to the whole.
15. CONDEMNATION. If all or substantially all of the Premises, or any portion of the
Building and Common Areas which shall render the Premises untenantable, shall be taken by
condemnation or similar proceeding, or shall be conveyed in lieu thereof, then this Lease, at the
option of either Landlord or Tenant exercised by either party giving notice to the other of such
termination within 30 days after such taking or conveyance, shall terminate and the rent shall be
duly apportioned as of the date of such taking or conveyance. Upon such termination, Tenant shall
surrender to Landlord the Premises and all interest therein under this Lease, and if necessary
Landlord may reenter and take possession of the Premises or remove Tenant therefrom. If less than
all of the Premises shall be taken by such proceeding, Landlord shall promptly repair the Premises
as nearly as possible to their immediately prior condition unless Landlord elects not to
reconstruct or rebuild as described in Section 14.3. Landlord shall receive the entire
award or consideration for the portion of the Building so taken in the event of any such taking or
conveyance, provided, so long as Landlord’s reward is not reduced as a result, Tenant shall be
entitled to separately claim for Tenant’s trade fixtures, removable personal property, moving costs
and any other amounts to which Tenant may be entitled (exclusive of any award for the value of
Tenant’s leasehold interest).
16. DEFAULT.
16.1 Event of Default. The happening of any one or more of the following events shall
constitute an “Event of Default”:
(a) Tenant shall fail to pay when due Rent or any other amounts due hereunder and such default
shall continue for five (5) days after receipt of written notice from Landlord; provided,
however, that Tenant shall not be entitled to more than two (2) notices of a delinquency in
a monetary obligation during any Lease Year, and if thereafter any rent or other amount owing
hereunder is not paid when due, an Event of Default shall be considered to have occurred even
though no notice thereof is given;
(b) Tenant shall abandon the Premises and shall fail to timely pay Rent;
(c) This Lease or the interest of Tenant shall be transferred to or shall pass to any other
person or party except in accordance with Section 11;
(d) This Lease or the Premises (or any part) shall be taken by execution or other process
directed against Tenant, or shall be taken by any attachment by any creditor of or claimant against
Tenant and is not be discharged or disposed of within 30 days after its levy;
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(e) The filing of any petition or the commencement of any case or proceeding by the Tenant
under any provision or chapter of any federal or state bankruptcy law or any other federal or state
law relating to insolvency or reorganization, the adjudication that the Tenant is insolvent or
bankrupt, or the entry of an order for relief under any federal or state bankruptcy law with
respect to Tenant;
(f) The filing of any petition or the commencement of any case or proceeding described in
Section 16.1(e) against the Tenant, unless such petition and all related proceedings are
dismissed within 60 days from the filing, the filing of an answer by Tenant admitting the
allegations of any such petition, or the appointment of or taking possession by a custodian,
trustee or receiver for all or any assets of the Tenant, unless such appointment is vacated or
dismissed within 60 days from the date of such appointment;
(g) The insolvency of the Tenant or the execution by the Tenant of an assignment for the
benefit of creditors, the convening by Tenant of a meeting of its creditors, or any class thereof,
for purposes of effecting a moratorium upon or extension or composition of its debts, or the
failure of the Tenant generally to pay its debts as they mature.
(h) The admission in writing by Tenant or if Tenant is a partnership any partner of Tenant
that Tenant is unable to pay its debts as they mature or it is generally not paying its debts as
they mature;
(i) Tenant shall fail to perform any of the other provision of this Lease on Tenant’s part to
be performed, and such failure shall continue for a period of 30 days after Tenant’s receipt of
written notice, or if such failure cannot be reasonably be cured within the 30-day period but can
be had within 90 days or less, Tenant shall not in good faith have commenced such cure within such
30-day period and shall not diligently proceed to completion.
16.2 Landlord’s Remedies. Upon any one or more Events of Default, then Landlord shall
at its election have the right, then or at any time thereafter, either:
(a) To reenter and take possession of the Premises (or any part) without demand or notice, and
repossess them and expel Tenant and those claiming through or under Tenant and remove the effects
of both or either, using such force as may be necessary, without being liable for the prosecution
thereof, or being deemed guilty of trespass and without prejudice to any remedies. Should Landlord
elect to reenter as provided herein, or should Landlord take possession pursuant to legal
proceedings or pursuant to any notice provided for by law, Landlord may, from time to time, without
terminating this Lease, relet the Premises (or any part), either alone or in conjunction with other
portions of the Building, in Landlord’s or Tenant’s name, but for the account of Tenant, for such
term or terms (which may be greater or less than the period which would otherwise have constituted
the balance of the Lease Term) and on such conditions and upon such other terms (which may include
such concessions, free rent, alterations and repair of the Premises) as Landlord, in its sole
discretion, may determine, and Landlord may collect and receive the rents therefor. Landlord shall
not be responsible or liable for any failure to relet the Premises, or any part thereof, or for any
failure to collect any rent due upon such reletting. No reentry or taking possession of the
Premises by Landlord shall be construed as an election on Landlord’s part to terminate this Lease
unless written notice of such intention is given to Tenant and no notice from Landlord hereunder or
under a forcible entry and detainer statute or similar law shall constitute an election by Landlord
to terminate this Lease unless the notice specifically so states. Landlord reserves the right
following any reentry and/or reletting to exercise its right to terminate this Lease by giving
Tenant such written notice, in which event the Lease will terminate as specified in the notice.
(b) If Landlord elects to take possession of the Premises as provided herein without
terminating the Lease, Tenant shall pay to Landlord (i) the Rent and other sums which would be
payable hereunder if such repossession had not occurred, less (ii) the net proceeds, if any, of any
reletting of the Premises after deducting all of Landlord’s expenses incurred in connection with
such reletting, including, without limitation, all repossession costs, brokerage commissions, legal
expenses, reasonable attorneys’
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fees, alteration, remodeling and repair costs, tenant finish costs, and expenses of
preparation for such reletting. If, in connection with any reletting, the new lease term extends
beyond the existing Lease Term, or the premises covered thereby include other premises not part of
the Premises, a fair apportionment of the Rent received from such reletting and the expenses
incurred in connection therewith, as provided above, will be made in determining the net proceeds
received from reletting within such determination, any rent concessions will be apportioned over
the term of the new Lease. Tenant shall pay such amounts to Landlord monthly on the days on which
the Rent and other amounts owing hereunder would have been payable if possession had not been
retaken and Landlord shall be entitled to receive them from Tenant on each such day;
(c) To give Tenant written notice of intention to terminate this Lease as of the date of such
notice or on any later date specified therein, and on such date, Tenant’s right to possession of
the Premises shall cease and the Lease shall terminate, except as to Tenant’s liability as provided
below, as if the expiration date specified in such notice was the date otherwise fixed as the end
of the Lease Term. If this Lease is terminated pursuant to the provisions of this Section
16.2(c), Tenant shall remain liable to Landlord for damages in an amount equal to the Rent and
other sums which would have been owing by Tenant hereunder for the balance of the Lease Term had it
not been terminated, less the net proceeds (if any) of any reletting of the Premises by Landlord
subsequent to such termination, after deducting all Landlord’s expenses in connection with such
reletting, including, without limitation, the expenses enumerated in Section 16.2(b).
Landlord shall be entitled to collect these damages from Tenant monthly on the days on which the
Rent and other amounts would have been payable hereunder if this Lease had not been terminated, and
Landlord shall be entitled to receive these from Tenant on each such day. Alternatively, at the
option of Landlord, in the event this Lease is terminated, Landlord shall be entitled to recover
forthwith against Tenant, as damages for loss of bargain and not as a penalty, an amount equal to
the worth at the time of termination of the excess, if any, of the amount of Rent reserved and
payable under this Lease for the balance of the Lease Term hereof over the amount of rental which
Landlord could obtain as rent for the remaining balance of the term (“Reasonable Rental Value”),
plus all amounts incurred by Landlord in obtaining possession of and reletting the Premises
(including but not limited to reasonable attorneys’ fees, reletting expenses, alterations and
repair costs, and brokerage commissions), plus all amounts for unamortized Tenant Finish Work costs
which have not yet been recovered through rental payments.
16.3 Mitigation; Cumulative Remedies. Action(s) to recover Rent, other amounts, and
damages set forth above may be brought by Landlord, from time to time, at Landlord’s election, and
nothing shall be deemed to require Landlord to await the date on which the Lease Term would have
otherwise expired had there been no such default or termination. Landlord agrees to use reasonable
efforts, subject to the exercise of its reasonable business judgment, to relet the premises to a
qualified tenant(s) should it retake possession pursuant to Section 16.2, recognizing,
however, that Landlord (or its affiliates) is the owner or operator of other buildings and is not
obligated in any way to give any preference to such reletting over leasing in such other buildings.
Each right and remedy provided in this Lease shall be cumulative and in addition to, and not in
lieu of, every other right or remedy provided in this Lease or now or hereafter existing by statute
or otherwise, including suits for injunctive relief or specific performance. The exercise by
Landlord of any one or more of the rights or remedies provided in this Lease or now or hereafter
existing by statute or otherwise shall not preclude the simultaneous or later exercise by Landlord
of any or all other rights or remedies provided in this Lease or now or hereafter existing by
statute or otherwise. If any action is commenced arising out of the terms and provisions of this
Lease, the prevailing party shall be entitled to recover from the other party all costs and
expenses, including without limitation all reasonable attorneys’ fees, incurred in connection with
that action.
16.4 No Waiver. No failure by Landlord or Tenant to insist upon the strict
performance of any provision of, or the exercise of any right or remedy upon a breach of this
Lease, and no acceptance of full or partial rent during the continuance of any such breach, shall
constitute a waiver of any such provision. No provision to be performed or complied with by Tenant
or Landlord and no breach thereof shall be waived, altered, or modified except by written
instrument signed by the other party. No waiver of any breach shall affect or alter this Lease.
Notwithstanding any termination of this Lease, any provisions
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which by their nature require observance or performance by Landlord or Tenant subsequent to
such termination shall continue in force and effect.
16.5 Bankruptcy. Nothing contained in this Section 16 shall limit or
prejudice the right of Landlord to liquidated damages in any bankruptcy, insolvency, receivership,
reorganization, or dissolution proceeding in an amount equal to the maximum allowed by any statute
or rule of law governing such proceeding, whether or not such amount be greater, equal to or less
than the amounts recoverable, either as damages or rent, under any of the preceding provisions of
this Lease. Any such proceeding or action involving bankruptcy, insolvency, reorganization,
arrangement, assignment for the benefit of creditors, or appointment of a receiver or trustee, as
set forth above, shall be considered an Event of Default only when it shall be taken or brought by
or against the then holder of the leasehold estate under this Lease. Landlord shall be entitled
under the federal bankruptcy law to “adequate assurance” of future performance of the terms and
provisions of this Lease in the event of an assumption or assignment in bankruptcy, and the parties
agree that the term “adequate assurance” shall include at least the following: (a) The financial
condition and resources of Tenant were a material inducement to Landlord in entering into this
Lease, and to assure that the proposed assignee will have the resources to pay the rent under this
Lease, any proposed assignee must have a net worth (as defined in accordance with generally
accepted accounting principles consistently applied) at least as great as the net worth of Tenant
on the date this Lease became effective increased by 7%, compounded annually, for each year from
the Lease Commencement Date through the date of the proposed assignment; (b) Any proposed assignee
of this Lease must assume and agree to be personally bound by the terms, provisions, and covenants
of this Lease.
16.6 Late Interest; Late Charge. Any Rent or other amounts owing hereunder not paid
within 5 days after the date they are due or any amounts advanced by Landlord on behalf of Tenant
shall thereafter bear interest at an annual rate of three percentage points over the prime rate
then being charged by First Interstate Bank of Denver, N.A. to its most credit-worthy customers on
an unsecured basis for short term loans, or the highest rate permitted by applicable usury law,
whichever is lower (the “Default Rate”), until paid. Further, in the event any Rent or other
amounts owing hereunder are not paid within 5 days after written notice, Landlord will incur
additional administrative expenses, the amount of which will be difficult if not impossible to
determine; accordingly, Tenant shall pay to Landlord an additional one-time late charge for any
such late payment in the amount of 5% of such payment.
16.7 Landlord’s Default. In the event of any alleged default on the part of Landlord,
Tenant shall give written notice to Landlord in the manner herein set forth and shall afford
Landlord a reasonable opportunity to cure any such default (which shall not be less than 30 days).
Notice to Landlord of any such alleged default shall be ineffective unless such notice is
simultaneously delivered to any Mortgagee. Tenant agrees to give all Mortgagees, by certified
mail, return receipt requested, a copy of any notice of default served upon Landlord, provided that
prior to such notice Tenant has been notified in writing (by way of notice of assignment of rents
and Leases, or otherwise), of the address of such Mortgagees. Tenant further agrees that if
Landlord shall have failed to cure such default within the time provided for in this Lease, then
the Mortgagees shall have an additional 30 days within which to cure such default, or if such
default cannot be cured within that time, then such additional time as may be necessary if, within
such 30 days, any Mortgagee has commenced and is diligently pursuing the remedies necessary to cure
such default (including commencement of foreclosure proceedings if necessary to effect such cure),
in which event this Lease shall not be terminated while such remedies are being diligently pursued.
In no event will Landlord or any Mortgagee be responsible for any consequential damages incurred
by Tenant as a result of any default, including, but not limited to lost profits or interruption of
business as a result of any alleged default by Landlord hereunder.
17. SURRENDER; HOLDOVER.
17.1 In General. Upon expiration or other termination of the Lease Term, Tenant shall
promptly quit and surrender to Landlord the Premises broom clean, in good order and condition,
ordinary wear and tear and loss by fire or other casualty excepted unless due to the negligence of
Tenant, and Tenant shall remove all of its movable furniture and other effects and such Alterations
as Landlord shall
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have required Tenant to remove pursuant to Section 9.3. If Tenant fails to so vacate
the Premises, Tenant shall be responsible to Landlord for all reasonable costs incurred by Landlord
as a result of such failure, including amounts required to be paid to third parties who were to
have occupied the Premises.
17.2 Landlord’s Rights. All movable furniture and personal effects of Tenant not
removed from the Premises upon their abandonment or upon termination of this Lease shall
conclusively be deemed to have been abandoned and may be appropriated, sold, stored, destroyed, or
otherwise disposed of by Landlord without notice to Tenant or any other person, and without
obligation to account therefor, and Tenant shall pay Landlord all reasonable expenses incurred in
connection with the storage and/or disposition of such property.
17.3 Holdover. If, after the expiration of this Lease, Tenant shall, with Landlord’s
consent, but without any express written agreement remain in possession of the Premises and
continue to pay Rent, then such holding-over shall be deemed to be a holding upon a tenancy from
month-to-month, subject to all the terms and conditions hereof on the part of each respective party
hereto to be observed and performed, at a monthly rent equivalent to 150% of the monthly
installment paid by Tenant immediately prior to such expiration or the then-current market rental
rate, whichever is greater. All such rent shall be payable in advance on the same day of each
calendar month. Such month-to-month tenancy may be terminated by either party upon 10 days written
notice prior to the end of any such monthly period. Nothing contained herein shall be construed as
obligating Landlord to accept any rental tendered by Tenant after the expiration of the Lease Term
or, if so accepted, as relieving Tenant of its liability and obligations pursuant to this
Section 17.3.
17.4 Payments After Termination. No monetary payments by Tenant to Landlord after the
termination of this Lease or after giving of any notice (other than a demand for payment of money)
by Landlord to Tenant, shall reinstate, continue or extend the Lease Term or affect any notice
given to Tenant before the payment of such money, it being agreed that after the service of notice,
the commencement of suit, or final judgment granting Landlord possession of the Premises, Landlord
may receive and collect any Rent, or any other sums of money due under this Lease, or otherwise
exercise Landlord’s rights and remedies, and the payment of such sums, whether as rent or
otherwise, shall not waive the notice or affect any pending suit or judgment obtained.
18. SUBORDINATION AND ATTORNMENT.
18.1 At Landlord’s option, this Lease shall be subordinate to any present or future mortgage
or deed of trust encumbering the Building, including any amendment, modification, or restatement,
and to any and all advances made under any such mortgage or deed of trust. Tenant agrees that with
respect to any of the foregoing, no documentation, other than this Lease, shall be required to
evidence such subordination.
18.2 If any holder of such mortgage or deed of trust shall elect to have this Lease superior
to the lien of the holder’s mortgage or deed of trust, and shall give written notice to Tenant,
this Lease shall be deemed prior to such mortgage or deed of trust, whether this Lease is dated
prior or subsequent to the date of such mortgage or deed of trust, or its recording date.
18.3 In confirmation of such subordination or superior position, as the case may be, Tenant
shall, within 10 business days after Tenant’s receipt of Landlord’s written demand, execute such
commercially reasonable documents as may be required by Landlord or its mortgagee to evidence the
subordination of its interest herein to any of the documents described above, or to make this Lease
prior to the lien of any mortgage or deed of trust. In the event that Tenant fails to deliver such
document(s) within said 10-business day period, Landlord may deliver to Tenant a notice of such
failure and if Tenant then fails to return such document(s) in five days after receipt of such
additional notice from Landlord, then such failure shall be an Event of Default for which there
shall be no cure or grace period.
18.4 Tenant agrees to attorn to all successor owners of the Building whether or not such
ownership is acquired as a result of a sale, foreclosure, or otherwise.
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19. ESTOPPEL. Tenant agrees at any time and from time to time, upon not less than 10
business days after Tenant’s receipt of a written request by Landlord, to execute, acknowledge and
deliver to Landlord an estoppel certificate in writing certifying that this Lease is unmodified and
in full force and effect (or if there have been modifications, that the same is in full force and
effect as modified, and stating the modifications), that there have been no defaults thereunder by
Landlord or Tenant (or if there have been defaults, setting forth the nature thereof), the date to
which the rent and other charges have been paid in advance, if any, and such other information as
Landlord may reasonably request. It is intended that any such statement may be relied upon by a
prospective purchaser of all or any portion of Landlord’s
interest herein or a holder of any mortgage or deed of trust encumbering the Building. Tenant’s
failure to deliver such statement within such time shall be conclusive upon Tenant that: (a) this
Lease is in full force and effect, without modification except as may be represented by Landlord;
(b) there are no uncured defaults in Landlord’s performance; and (c) not more that 1 months rent
has been paid in advance. In the event that Tenant fails to deliver an estoppel certificate within
said 10-business day period, Landlord may deliver to Tenant a notice of such failure and if Tenant
then fails to return such estoppel in five days after receipt of such additional notice from
Landlord, then such failure shall be an Event of Default for which there shall be no cure or grace
period.
20. SUBSTITUTED PREMISES. At any time during the Lease Term, Landlord shall have the right
upon 90 days prior written notice to Tenant to substitute other space within the Building, or
within other buildings owned by Landlord or related entities within the Business Park if no
substitute space is then available in the Building, for the Premises (the “Substituted Premises”).
Tenant shall relocate to the Substituted Premises on the date set forth in Landlord’s notice (to
occur no sooner than 90 days after receipt by Tenant of the notice) and Landlord agrees to pay (a)
the actual and reasonable expenses of physically moving Tenant, its property and equipment to the
Substituted Premises, including the cost of moving Tenant’s telecommunications and cabling systems
existing in the Premises immediately prior to the relocation, and (b) all costs of reprinting
stationery, cards and other printed material bearing Tenant’s address at the Premises if such
address changes due to the relocation (but only the quantity existing immediately prior to the
relocation). If Landlord elects to exercise this right, the Substituted Premises shall be
generally comparable space and contain approximately as much square footage as the originally
leased Premises and the rental rate shall remain as set forth in Section 1.3. Except for
such revisions, the terms and provisions of the Lease shall be applicable to the Substituted
Premises and the Substituted Premises shall be deemed to be the Premises under the Lease.
21. AUTHORITIES/NOTICE.
21.1 Except as otherwise provided herein, Landlord may act in any manner provided for herein
through Landlord’s Building manager or any other person who shall from time to time be so
designated in writing.
21.2 All notices, demands, statements or communications required or permitted to be given to
Landlord hereunder shall be in writing, and shall be deemed duly served when deposited in the
United States mail, postage prepaid, certified or registered, return receipt requested, or
deposited with a nationally recognized overnight courier, addressed to Landlord at the address on
introductory paragraph of this Lease, or at the most recent address of which Landlord has notified
Tenant in writing, with required copies to the following:
Broadreach Capital Partners, LLC | Means-Xxxxx Partners, L.P. | |
000 Xxxxx Xxx. | 0000 X. Xxxxxxxxx Xxx. | |
Xxxx Xxxx, XX 00000 | Xxxx. 0, Xxxxx 000 | |
Attn: Xxxx X. Xxxxxx | Xxxxxxxxx Xxxxxxx, XX 00000 | |
Attn: Property Manager |
21.3 All notices or demands required to be given to Tenant hereunder shall be in
writing, and shall be deemed duly served when delivered personally to any officer (or a partner of
Tenant if Tenant is a partnership or to Tenant individually if Tenant is a sole proprietor) or
manager of Tenant whose office is in the Building, or when deposited in the United States mail,
postage prepaid, certified or registered, return receipt requested, or when deposited with a
nationally recognized overnight courier, addressed to
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Tenant at the Premises, or, prior to Tenant’s
taking possession of the Premises, to the address known to Landlord as Tenant’s principal office
address, with a courtesy copy in all instances to: Xxxxxxx & Xxxxxx LLC, 0000 Xxxxxxx Xxxxxx, Xxxxx
000, Xxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxx, Esq. Either party shall have the right to
designate in writing served as above provided a different address to which notice is to be mailed.
The foregoing shall in no event prohibit notice from being given as provided in the Colorado Rules
of Civil Procedure.
22. RULES AND REGULATIONS. The rules and regulations attached as Exhibit
“C” (“Rules and Regulations”) are hereby made a part of this Lease, and Tenant agrees
that Tenant’s employees and agents, or any others permitted by Tenant to occupy or enter the
Premises, shall at all times abide by them. Tenant agrees that Landlord may amend, modify, delete,
or add to the Rules and Regulations of the use and care of the Premises and the Building and Common
Areas, and agrees to comply with all such Rules and Regulations as amended, upon notice to Tenant
from Landlord thereof. If any Rules and Regulations are breached by Tenant or its employees,
Landlord shall have all remedies in this Lease provided for in the Event of Default by Tenant.
Nothing in this Lease shall be construed to impose upon Landlord any duty or obligation to enforce
Rules and Regulations, or the terms, covenants or conditions of any other lease as against any
other tenant, and Landlord shall not be liable to Tenant for violation of the same by any other
tenant, its servants, employees, agents, visitors or licensees. Notwithstanding the foregoing, in
the event of any conflict between the Rules and Regulations and this Lease, the terms and
provisions of this Lease shall prevail.
23. LIMITATION OF LANDLORD’S LIABILITY. Notwithstanding anything to the contrary contained
herein, none of the officers, directors, members, managers, shareholders, or partners (including
any trustees or beneficiaries of trusts which are partners) of Landlord shall have any individual
or personal liability for the performance or observance of Landlord’s responsibilities and
covenants hereunder. Notwithstanding anything to the contrary contained herein, Landlord’s
liability under this Lease shall be limited to its interest in the Building and no other real,
personal or other property of Landlord or of the partners comprising Landlord, or of the officers,
shareholders, directors, partners, or principals of such partners comprising Landlord shall be
subject to levy, attachment, or execution, or otherwise sued to satisfy any judgment. Tenant
hereby waives any right to satisfy a judgment against Landlord except from Landlord’s interest in
the Building of which the Premises are a part.
24. PARKING. Tenant (and its employees) shall be permitted, without a parking charge, to
park up to the number of passenger vehicles determined in accordance with Section 1.8, on
an unreserved basis, in the common parking areas as designated by Landlord from time to time for
use by occupants of the Building. Landlord shall have a right to restripe the parking areas from
time to time, at which time the spaces available for Tenant’s use are subject to redetermination
based on Tenant’s ratio of parking spaces in accordance with Section 1.8. Tenant agrees to
abide by those reasonable parking regulations and rules as may hereafter be established by Landlord
(which may include Landlord’s designation of reserved spaces and the requirement that vehicles
display a sticker) and, in the event a surcharge or regulatory fee may be imposed by any
governmental agency with reference to parking, Tenant shall pay, per vehicle, to Landlord in
advance (monthly or on such other basis as may be imposed by the governmental agency) such
surcharge or fee as additional rent under this Lease. Tenant agrees that no vehicles belonging to,
or subject to the control of Tenant or its employees, shall be “stored” in the parking area (which
for this purpose shall mean remaining stationary for a period of longer than 5 consecutive business
days).
25. BROKERAGE. Tenant represents and warrants to Landlord that it has dealt only with
ReMax Commercial (“Tenant’s Broker”), as Tenant’s exclusive agent, and Means-Xxxxx Partners, L.P.
and Xxxxxx and Company (collectively, “Landlord’s Broker,” and together with Tenant’s Broker,
collectively, the “Brokers”), as Landlord’s exclusive agent, in the negotiation of this Lease.
Landlord shall make payment of the brokerage fee due to the Brokers pursuant to and in accordance
with a separate agreement with the Brokers. Landlord and Tenant hereby agree to indemnify and hold
the other harmless of and from any and all damages, losses, costs or expenses (including without
limitation, all reasonable attorneys’ fees and disbursements) by reason of any claim of or
liability to any other broker or
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other person claiming through Tenant or Landlord, respectively,
and arising out of or in connection with the negotiation, execution and delivery of this Lease.
26. GENERAL PROVISIONS.
26.1 Landlord’s Obligations on Sale of Building. “Landlord” as used in this Lease
shall mean and include only the owner or owners of the Building at the time in question, and in the
event of any transfer or transfers of the title, Landlord herein named (and in the case of any
subsequent transfers or conveyances, the then owner of the Building) shall be automatically
released from and after the date of
such transfer or conveyance of all liability for the performance of any covenants or
obligations on the part of Landlord contained in this Lease thereafter to be performed;
provided, however, that any funds held by Landlord or the then owner at the time of
such transfer in which Tenant has an interest shall be turned over or otherwise credited to the
grantee, and any amount then due and payable to Tenant by Landlord or the then owner under any
provisions of this Lease shall be paid to Tenant.
26.2 Merger. The termination or cancellation of this Lease shall, at the option of
Landlord, either terminate all subleases and subtenancies or operate as an assignment to Landlord
of any or all such subleases or subtenancies.
26.3 Independent Covenants. The covenants in this Lease are independent and not
dependent, and Tenant shall not be entitled to any setoff against rent or other amounts owing
hereunder if Landlord fails to perform its obligations set forth herein; provided, however, the
foregoing shall not impair the right of Tenant to commence a separate action against Landlord for
any violation by Landlord of the provisions hereof so long as notice is first given to Landlord and
any Mortgagee and an opportunity granted to Landlord and Mortgagee to correct such violation if
required by Section 16.7.
26.4 Severability. If any provision of this Lease is illegal, invalid, or
unenforceable under present or future laws effective during the Lease Term, it is the intention of
the parties that the remainder of this Lease shall not be affected and that in lieu of each
provision of this Lease that is illegal, invalid, or unenforceable, there shall be added as a part
of this Lease a provision as similar to such illegal, invalid, or unenforceable provision as may be
possible and be legal, valid, and enforceable.
26.5 Headings. The captions to this Lease are added as a convenience and have no
legal significance.
26.6 Binding Effect. Except as otherwise specifically set forth in this Lease, all
terms, conditions, and covenants to be observed and performed by the parties hereto shall be
applicable to and binding upon their respective heirs, administrators, executors, and assigns. The
terms, provisions, conditions, and covenants hereof shall also be considered to be covenants
running with the land to the fullest extent permitted by law.
26.7 Joint Obligations. If more than one entity or person comprises the Tenant under
this Lease, the obligations imposed upon Tenant under this Lease shall be joint and several.
26.8 Authority. Landlord and Tenant and the party executing this Lease on behalf of
such party represent to other party that such party is authorized to do so by requisite action of
the board of directors or partners, as the case may be.
26.9 No Accord and Satisfaction. Nothing done by Landlord or Landlord’s agents during
the term hereof, including without limitation any agreement to accept surrender of the Premises or
to amend or modify this Lease, shall be deemed to be binding on Landlord unless agreed to by a
partner or officer of Landlord, as the case may be, or a party designated in writing by Landlord as
so authorized to act. The delivery of keys to Landlord or Landlord’s agents, employees, or
officers shall not operate as a termination of this Lease or a surrender of the Premises. No
payment by Tenant or receipt by Landlord of a lesser amount than the monthly rent and all other
amounts owing as herein stipulated shall be deemed
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to be other than on account of the earliest
stipulated rent or other amounts. No endorsement or statement on any check or any letter
accompanying any check or payment as rent shall be deemed
an accord and satisfaction, and Landlord
may accept such check or payment without prejudice to Landlord’s right to recover the balance of
such rent or pursue any other remedy available to Landlord.
26.10 Landlord’s Reserved Rights. Landlord shall have the right at any time to change
the name of the Building, to increase the size of the Building and/or Common Areas by adding
additional real property thereto, to construct other buildings or improvements on any portion of
the Building and/or Common Areas or to change the location and/or character of, or to make
alterations of or additions to the
Building and/or Common Areas. In the event any such additional buildings are constructed or
Landlord increases the size of the Building and/or Common Areas, Landlord and Tenant shall execute
an amendment to the Lease which incorporates such modifications, additions and adjustments to
Tenant’s Pro Rata Share, if necessary. Tenant shall not use the name and/or xxxx “Xxxxxxxxx
Corporate Plaza,” or other xxxx, name or logo belonging to Landlord, alone or in conjunction with
any words or symbols as a trade name, corporate name, trade xxxx, service xxxx or in another
similar manner, without a prior written agreement from Landlord, or its successor-in-interest.
26.11 No Light or Air Easements. Tenant agrees that no diminution of light, air or
view by any structure that may hereafter be erected (whether or not by Landlord) shall entitle
Tenant to any reduction of rent or other charges under this Lease, result in any liability of
Landlord to Tenant, or in any other way affect this Lease or Tenant’s obligations.
26.12 Quiet Enjoyment. So long as Tenant complies with the provisions hereof,
Landlord agrees to warrant and defend Tenant in the quiet enjoyment and possession of the Premises
during the Lease Term without hindrance by Landlord or persons lawfully claiming by, through or
under Landlord.
26.13 Landlord’s Consent. Whenever the Lease provides for Landlord to consent or
approve any action or documents, it is understood and agreed that such consent or approval shall be
in Landlord’s sole and absolute discretion, except where specifically provided that such consent or
approval shall not be unreasonably withheld.
26.14 Time of Essence. Time is of the essence hereof.
26.15 No Representations or Warranties. Tenant acknowledges and agrees that it has
not relied upon any statements, representations, agreements, or warranties by Landlord, its agents
or employees, except as are specifically stated herein, and no amendment or modification of this
Lease shall be valid or binding unless in writing and signed by the parties.
26.16 No Recordation. Tenant shall not record this Lease.
26.17 Governing Law; No Jury Trial; Venue; Jurisdiction. This Lease shall be
construed in accordance with the laws of the State of Colorado, without giving effect to conflict
of laws principles. Each party hereto (which includes any assignee, successor, heir or personal
representative of a party) shall not seek a jury trial, hereby waives trial by jury, and hereby
further waives any objection to venue in the County in which the Building is located, and agrees
and consents to personal jurisdiction of the courts of the State of Colorado, in any action or
proceeding or counterclaim brought by any party hereto against the other on any matter whatsoever
arising out of or in any way connected with this Lease, the relationship of Landlord and Tenant,
Tenant’s use or occupancy of the Premises, or any claim of injury or damage, or the enforcement of
any remedy under any statute, emergency or otherwise, whether any of the foregoing is based on this
Lease or on tort law. No party will seek to consolidate any such action in which a jury has been
waived with any other action in which a jury trial cannot or has not been waived. It is the
intention of the parties that these provisions shall be subject to no exceptions. By execution of
this Lease the parties agree that this provision may be filed by any party hereto with the clerk or
judge before whom any action is instituted, which filing shall constitute the written consent to a
waiver of jury trial. No party has in any way agreed with or represented to any other party that
the provisions of this Section will not be fully enforced in all instances.
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26.18 Counterparts. This Lease may be executed in two or more duplicate originals.
Each duplicate original shall be deemed to be an original hereof, and it shall not be necessary for
a party hereto to produce more than one such original as evidence hereof.
26.19 Submission. Submission of this Lease for examination or signature by Tenant
does not constitute a commitment or option for Lease, and it is not effective as a Lease or
otherwise until execution and delivery by both Landlord and Tenant.
26.20 Survival. The waivers of the right of jury trial, the other waivers of claims
or rights, the releases and the obligations of Tenant and Landlord under this Lease to indemnify,
protect, defend and hold harmless Tenant, Landlord and/or the Indemnitees shall survive the
expiration or termination of this Lease, and so shall all other obligations or agreements which by
their terms survive expiration or termination of this Lease.
26.21 Exhibits, Riders & Addenda. The exhibits, riders and addenda set forth below
shall be deemed to be a part of this Lease and hereby incorporated herein:
EXHIBIT “A”
|
— | THE PREMISES | ||
EXHIBIT “B”
|
— | COMMENCEMENT DATE MEMORANDUM | ||
EXHIBIT “C”
|
— | RULES AND REGULATIONS | ||
RIDER “1”
|
— | ADDITIONAL PROVISIONS |
26.22
[signature page follows]
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the day and year
first above written.
LANDLORD:
BRCP GREENWOOD CORPORATE PLAZA, LLC,
a Delaware limited liability company
a Delaware limited liability company
By: | Greenwood Plaza Investors, LLC, | |||
a Colorado limited liability company, | ||||
its member |
By: | /s/ Xxxxx X. Xxxx | |||||
Name: | Xxxxx X. Xxxx | |||||
Title: | Manager |
TENANT:
A SMART MOVE L.L.C.,
a Colorado limited liability company
a Colorado limited liability company
By:
|
/s/ Xxxxx Xxxxxx | |||
Name:
|
Xxxxx Xxxxxx | |||
Title:
|
CEO/Manager |