Exhibit 10(a) - Commercial Lease Agreement between Registrant and
Colorful Avenue, Ltd. as landlord, dated September 13, 2000, in
connection with a lease of the Registrant's corporate headquarters and
fulfillment center in Longmont, Colorado.
COMMERCIAL LEASE
THIS LEASE AGREEMENT ("Lease") is made this 13th day of September 2000
("Effective Date") by and between Colorful Avenue, Ltd., a Colorado Limited
Partnership, c/o ▇▇▇▇▇▇▇ Realty Services, Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇.,
#▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ("Landlord") and Concepts Direct, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇., ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ("Tenant"). Hereafter this agreement shall be
referred to as the "Lease" or the "Commercial Lease".
WITNESSETH:
DEMISE:
Landlord does hereby lease to Tenant and Tenant hereby leases and hires from
Landlord the Premises (as more particularly defined below), which includes,
inter alia, approximately 117,182 square feet of building space (the
"Building") and parking spaces located on the property consisting of 10.64
acres and generally known as ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
together with the exclusive right, subject to the provisions hereof, to use
the Building, and all appurtenances thereto, including, but not limited to,
the common areas, parking spaces, sidewalks, walkways or other areas in and
around the Building. The Building, common areas, walks, ways, parking
facilities and spaces, the land surrounding the Building and other areas and
appurtenances are hereinafter collectively called the "Premises". The
location and depiction of the Premises are depicted on Exhibit "A" attached
hereto and incorporated herein. The Legal Description of the Premises is
described on Exhibit "B".
Such letting and hiring is upon and subject to the terms, conditions, and
covenants herein set forth, and Tenant and Landlord covenant as a material
part of the consideration for this Lease to keep and perform each and all
said terms, conditions, and covenants by it to be kept and performed and
that this Lease is made upon the condition of such performance.
1. PURPOSE. The Premises are to be used for the purposes of general
office, merchandise warehousing and shipping and for any other purpose
conforming with all applicable laws, including but not limited to zoning
and local use restrictions, and subject to Section 24 hereof. Any
significant change in the use of the Premises shall require the prior
written approval of Landlord.
2. TERM. The Term of this Lease shall be for a period of approximately
twenty (20) years. The delivery of possession to the Tenant shall occur on
the date of settlement of that certain "Contract To Buy And Sell Real Estate
(Commercial) (New Loan)" between Colorful Avenue, Ltd., as Buyer and Concepts
Direct, Inc., as Seller dated September 12, 2000. Tenant's responsibility
to pay Rent shall commence at 12:01 a.m. on October 1, 2000, and end at 5:00
p.m., Mountain Standard Time (MST) on September 30, 2020 (the "Lease Term").
Sixty (60) days prior to the expiration of the Lease Term, Landlord shall be
entitled to erect and/or install "For Rent" or "For Sale" signs upon the
Premises.
3. TENANT IMPROVEMENTS. Tenant takes possession of the Premises in an
"as is" condition. Other than Landlord's repair and replacement obligations
pursuant to Section 7 below, Tenant is responsible for any and all current
or future Tenant improvements to the Premises.
4. RENT. Calculation of Base and Additional Rent (defined infra,
and hereafter collectively referred to as "Rent") is based upon the agreed
upon square footage of the Building being 117,182 square feet. All
calculations of Base Rent and Additional Rent made under the terms of this
Lease shall be based upon that total square footage and shall be rounded to
the next highest whole number.
4.1 BASE RENT. The total Base Rent paid during the first year of the
Lease (the "Base Rent") shall be in the amount of One million two hundred
forty thousand and 00/100 Dollars ($1,240,000.00). Base Rent shall be
payable in equal monthly installments of One hundred three thousand three
hundred and thirty-three and 33/100 Dollars ($103,333.33) in advance on the
first day of each calendar month for the twelve (12) months of the Term
hereof. Thereafter, on each anniversary date of the Lease, the Base Rent
shall be increased by an amount equal to three percent (3%) of the previous
years Base Rent amount, and paid in equal monthly installments.
4.2 ADDITIONAL RENT. Landlord and Tenant acknowledge that Base Rent
is not intended to cover real or tangible personal property taxes, insurance,
and Operating Expenses (defined below) allocable to the Premises. Therefore,
all real and tangible personal property taxes, insurance, and any applicable
costs in respect of the Premises that Landlord may pay to third parties,
including but not limited to utilities, interior or exterior maintenance
and all other charges, costs, expenses that may come due by reason of any
default of Tenant, shall be deemed to be "Additional Rent", and in the event
of nonpayment, Landlord shall have all the rights and remedies as herein
provided for failure to pay Base Rent. Landlord shall provide all applicable
supporting documentation, including, but not limited to, actual or copies of
actual invoices and receipts pertaining to any cost or item that is passed
through to Tenant by Landlord within ten (10) business days after Landlord's
receipt of a written request from Tenant. Under no circumstance shall
Landlord pass through the cost of any late fees or penalties assessed against
Landlord due to the fault of Landlord.
Tenant agrees to pay to Landlord as Additional Rent, Operating Expenses,
defined below. A portion of said Additional Rent shall be payable monthly,
on the first day of each month to Landlord at the address provided for notice
in Section 26 below. In accordance with Exhibit D attached, at the
commencement of the Lease, Tenant's estimated Additional Rent is $2.70 per
square foot or $26,333.00 per month to be remitted along with the Base Rent
installment. In the event actual Operating Expenses and all other applicable
expenses that Landlord may suffer or incur, or that may become due by reason
of any default of Tenant, exceed the estimated Additional Rent, Landlord
shall have the right to assess Tenant for such expenses in excess of that
amount. Tenant shall pay any such assessments within thirty (30) days of
Tenant's receipt of the ▇▇▇▇ from Landlord. The obligation to make any such
payments shall survive the expiration or termination of this Lease and
Landlord shall have all the rights and remedies as herein provided for
failure to pay amounts assessed for excess expenses as for failure to pay
Base or Additional Rent when due. In the event actual Operating Expenses
and all other expenses that Landlord may suffer or incur, are less than the
estimated Additional Rent, Tenant shall be entitled to reimbursement of the
difference. Landlord shall, not less than annually during the Term of the
Lease, audit and reconcile estimated versus actual Operating Expenses and the
other charges allocated to Additional Rent and the monthly Additional Rent
payment shall be adjusted as set forth above. The Term "Operating Expenses",
as used above, shall include but shall not be limited to all expenses paid
to third parties with respect to the interior and exterior maintenance and
operations of the Premises, utilities, property management and administrative
fees, and installments of special assessments, which accrue against the
Premises during the Term of this lease.
4.3 LATE PAYMENTS. There shall be a late fee charged to Tenant based
on 5% of the Base Rent or any Additional Rent, as described herein, that is
not automatically deposited into Landlord's Rent Account (as defined below)
or otherwise received by the Landlord by the fifth (5th) day of the month.
Landlord and Tenant agree that the amount of this late fee as set forth above
is subject to revision and shall be tied to the late fee that shall be
assessed against Landlord by Landlord's lender in connection with the loan
obtained by Landlord to purchase the Premises, and accordingly Landlord and
Tenant shall cooperate to enter into a First Amendment to this Lease to amend
the late fee, if applicable. If the late fee assessed against Landlord by
Landlord's lender is the same as set forth in the first sentence of this
Section 4.3, there shall be no obligation for Landlord and Tenant to amend
this Lease.
In addition, any other amounts due from Tenant to Landlord under this Lease
not received when due shall bear interest from the date due until the date
paid at the annual rate of five percent (5%) above the prime rate in effect
from time to time during such period or, if less, the maximum amount legally
permissible, but the payment of such interest shall not excuse or cure any
default by Tenant under this Lease. The failure to charge or collect such
interest in connection with any one or more such late payments shall not
constitute a waiver of Landlord's right to charge and collect such interest
in connection with any other similar or like late payments. The covenants
herein to pay Rent shall be independent of any other covenant set forth in
this Lease. The phrase "Prime Rate" as used in this Section and in this
Lease shall mean the rate of interest quoted from time to time by ▇▇▇▇▇
Fargo National Bank (or its successor, or other comparable banking
institution if ▇▇▇▇▇ Fargo National Bank or its successor no longer exists)
as the rate of interest charged to its most credit worthy corporate borrowers
on unsecured ninety (90) day commercial loans. "Landlord's Rent Account"
shall mean that certain account held in ▇▇▇▇▇ Fargo Bank West, NA, ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ABA Number ▇▇▇▇▇▇▇▇▇, Account No.
0534376462. Landlord reserves the right to change the Landlord's Rent
Account upon sixty (60) days prior advance written notice to Tenant.
5. This paragraph has been intentionally left blank.
6. SERVICES.
6.1 UTILITIES. Tenant shall contract and pay directly all charges
for gas, water, sewer, electricity, and other utilities used by Tenant
on the Premises during the Term of this Lease. Such utilities shall be
separately metered and billed directly to Tenant, if possible. Any
utilities expenses paid by Landlord, if any, shall be included as an
Operating Expense charged to Tenant as provided in Subsection 4.2 above.
Tenant shall be responsible for all telephone and telecommunications
charges. Cessation of the aforesaid utilities, for any reason except
the fault of Landlord or its agents and employees, shall neither render
Landlord liable in any respect for damages to either person or property,
be construed as an eviction or partial eviction of Tenant, work as an
abatement of rent, nor relieve Tenant from fulfillment of any covenant
in this Lease.
6.2 GENERAL JANITORIAL SERVICE. Tenant shall contract for and pay
directly all charges for janitorial services performed in or on the
Premises during the Term of this Lease. The service shall be provided
regularly during the Term of this Lease and at such times as Landlord
shall reasonably require so as to maintain the quality and appearance
of the Premises. Janitorial services paid by the Landlord, if any,
shall be included as an Operating Expense charged to Tenant as provided
in Subsection 4.2 above.
7. MAINTENANCE OF THE PREMISES AND REPAIRS. Landlord shall keep the
foundation, sewer and drainage systems, the four outer walls, the roof deck,
joist and support system, and any structural support systems of the Building
in good condition and repair. Landlord shall be responsible for all capital
repairs and replacements of the aforesaid items. In the event that Landlord
fails in its performance of any of its non-monetary obligations under this
Lease such that the Tenant's operation of its business is materially
adversely affected (to be determined in Tenant's reasonable discretion for
a period in excess of seventy-two (72) consecutive hours, Tenant's Rent
shall ▇▇▇▇▇ until Tenant, is able to operate its business in the Premises
free of such material adverse impact.
Tenant shall keep the roof, landscaping, parking lot, sidewalks, gutters and
downspouts, windows, doors, the mechanical and electrical systems, and the
ventilating, heating and mechanical systems of the Building in good repair.
Tenant shall also maintain, replace, repair and keep all parts of the
interior of the Building (which include but are not limited to, interior
wall surfaces, doors, door hardware, plumbing, electrical, mechanical
equipment within the Building), in good order, operating condition and
repair. If Landlord is called upon to make repairs and/or replacements
that are the responsibility of the Tenant after Tenant has received written
notice from Landlord and Tenant has failed to make such repairs and/or
replacements in a reasonable amount of time or Tenant has failed to
diligently commence the making of such repairs, Landlord may make such
repairs and/or replacements and the Tenant shall promptly reimburse the
Landlord for the reasonable cost and expense of such repairs incurred by
Landlord. Tenant shall also keep the Premises in a clean, sanitary and safe
condition in accordance with all directions, rules and regulations of any
health offices, building inspectors and other proper officers of the
governmental agencies having jurisdiction, and shall dispose of all trash
and waste material in outside trash containers. Tenant shall comply with
all applicable requirements of laws, ordinances, and other rules and
regulations that affect the Premises, including the requirements of any
Board of Fire Underwriters, occupational health and safety administrators
or similar bodies. Tenant shall permit no injury or waste to or of the
Premises, and shall, at its own cost and expense, repair damage, including
replace with glass of the same quality any damaged or broken glass,
including plate glass or other breakable materials used in structural
portions of any interior or exterior windows and doors on the Building.
In addition, Tenant shall, at its own cost and expense, replace any light
bulbs, frames, ballasts, and accessory parts thereof on the Premises that
may be broken or damaged during the Term hereof. At the expiration of the
Term, Tenant shall surrender the Premises broom clean in as good order as
the same is on the day Tenant first opened for business to the public,
reasonable wear and tear excepted. If Tenant is called upon to make repairs
and/or replacements that are the responsibility of the Landlord after
Landlord has received written notice from Tenant and Landlord has failed to
make such repairs and/or replacements in a reasonable amount of time or
Landlord has failed to diligently commence the making of such repairs and/or
replacements, Tenant may make such repairs and the Landlord shall promptly
reimburse the Tenant for the reasonable cost and expense of such repairs
incurred by Tenant.
8. ALTERATIONS AND ADDITIONS.
8.1 ALTERATIONS AND ADDITIONS. Tenant shall not make alterations
(unless such alterations are an integral part of Tenant's maintenance
obligations pursuant to Section 7) or additions to the exterior of the
Building without the prior written consent of the Landlord, such consent not
to be Building without first obtaining Landlords written consent. Tenant
shall make no structural alterations (unless in the form of Tenant's repair
or replacements obligations pursuant to Section 7) or additions to the
interior of the Building, including equipment or appliances installed in
connection with the transmission or delivery of the utilities ("Tenant
Work"), without first procuring Landlord's prior written consent. Tenant
may submit to Landlord a letter describing the interior alteration or
addition with its location. After Landlord has reviewed such request, it
may in its sole discretion, require Tenant to deliver to Landlord the plans
and specifications therefor. All such plans and specifications shall be
prepared by experienced professionals and shall include drawings and samples
customary for any such undertaking. Any improvements proposed by Tenant,
which shall entail structural changes shall require architectural and
engineering plans by licensed Colorado professionals. Landlord shall have
thirty (30) days from receipt of such plans and specifications to review
same and either approve or disapprove them., such approval rights of Landlord
not to be unreasonably withheld, conditioned or delayed If Landlord should
disapprove the plans, the reasons for such disapproval shall be enumerated
and Tenant shall have a period of thirty (30) days within which to resubmit
such plans with the required changes. Landlord shall then have an additional
fourteen (14) days to review the resubmitted plans and approve or disapprove.
If disapproved, Tenant may resubmit on the same basis as its previous
resubmission but it shall be obligated to pay all of Landlord's reasonable
costs associated with review of the plans from the initial review until
approval.
Tenant shall promptly pay for the costs of all Tenant Work regardless of
the cost, and shall indemnify Landlord against liens, costs, damages, and
expenses incurred by Landlord in connection therewith, including any
attorney's fees incurred by Landlord, if Landlord shall be joined in any
action or proceeding involving such work. Under no circumstances shall
Tenant commence any such work until Landlord has been provided with
certificates evidencing that all the contractors and subcontractors
performing such work have in full force and effect adequate workmen's
compensation insurance as required by the laws of the State of Colorado,
public liability and builders risk insurance in such amounts and according
to terms satisfactory to Landlord. Notwithstanding the foregoing, Tenant
shall be entitled to remove its trade fixtures upon expiration of the Lease,
provided Tenant has given Landlord a list of all such trade fixtures at the
time of installation and Tenant removes only those fixtures identified on the
list given Landlord, and provided further that Tenant repair, at its sole
cost and expense, any damage to the Building caused by the removal of its
trade fixtures. Throughout the Term of this Lease, Tenant may provide one
or more updated lists of those trade fixtures to be removed from the Building
at the expiration or earlier termination of the Lease.
All alterations, additions, improvements and fixtures, including but not by
way of limitation, lighting fixtures, ducts, controls, diffusers, filters or
other equipment for distribution of heating and cooling, and other personal
property which may be made or installed by, for and on behalf of Tenant,
upon the Building, and which in any manner are attached to the floors, walls,
or ceilings shall become the Property of Landlord and shall remain upon and
be surrendered with the Premises at the time of installation as a part
thereof, without disturbance, molestation or injury. Any tile, linoleum or
floor covering of similar character, which may be cemented or otherwise
adhesively affixed to the floor of the Building shall be and become the
property of Landlord absolutely upon installation. During the Term of this
Lease, Tenant shall not remove or damage the Tenant's Work described in this
paragraph and fixtures without the written consent of Landlord.
8.2 PROTECTION AGAINST LIENS. At least five (5) days prior to the
commencement of any work on the Premises by Tenant, Tenant shall notify the
Landlord of the names and addresses of the persons supplying labor and
materials for the proposed work so that Landlord may avail itself of the
provisions of statutes such as Section 38-22-105(2) of the Colorado Revised
Statutes (1973). During the progress of any such work on the Premises,
Landlord or its representatives shall have the right to go upon and inspect
the Premises at all reasonable times, and shall have the right to post and
keep posted thereon notices such as those provided for by Section
38-22-105(2) C.R.S. 1973 or to take any further action which Landlord may
deem to be proper for the protection of Landlord's interest in the Premises.
9. This paragraph has been intentionally left blank.
10. RULES AND REGULATIONS. Tenant shall comply with the rules of the
Premises adopted by the Landlord as set forth in Exhibit "C". Landlord shall
have the right at all times to make reasonable changes to the rules and
regulations of the Premises.
11. ABANDONMENT. Tenant shall not vacate or abandon the Premises at
any time during the Term hereof, and if Tenant shall abandon, vacate or
surrender (whether at the end of the stated Term or otherwise) the Premises,
or shall be dispossessed by process of law or otherwise, then any personal
property belonging to Tenant and left on the Premises shall be deemed
abandoned.
12. LIENS ON PREMISES. Tenant shall not permit any lien to be placed
and remain on the Premises, as a result of its conduct for any reason.
Tenant shall also post notice pursuant to ▇▇-▇▇-▇▇▇, Colorado Revised
Statutes, 1973, et. seq., negating Landlord's liability for any mechanic's
liens resulting from any work, labor or materials performed for or delivered
at Tenant's request for incorporation into the Premises.
13. EMINENT DOMAIN. If the Premises shall be lawfully taken or
condemned (or conveyed under threat of such taking or condemnation) for
any public or quasi-public use or purpose, except for temporary use, the
Term of this Lease shall end upon, and not before, the date of the taking
of possession by the condemning authority, and without apportionment of the
award. Tenant hereby assigns to Landlord, Tenant's interest, if any, in such
award. Current Rent shall be apportioned as of the date of such termination.
If any part of the Premises is taken, Landlord or Tenant shall each have the
option by giving the other party notice, to cancel this Lease and each
party's obligations hereunder within two (2) months of the taking of
possession by the condemning authority, except that if less than twenty (20%)
of the Premises is taken and Tenant is able to operate its business in the
Premises, to be determined in Tenant's reasonable discretion, Landlord's
right to cancel this Lease shall be null and void. No money or other
consideration shall be payable by Landlord or Tenant to the other for the
right of cancellation, and Tenant shall have no right to share in any
condemnation award, or in any judgment for damages, or in any proceeds of
any sale made under any threat of condemnation or taking. In the event this
Lease is not canceled, this Lease shall continue in full force and effect,
without abatement or reduction of Rent due hereunder. Anything to the
contrary contained herein notwithstanding, Tenant shall be entitled to
receive and retain any award made to Tenant for the loss of its leasehold
interest and removal and relocation of its personal property, provided the
same does not diminish the award specifically made to Landlord.
14. DAMAGE OR DESTRUCTION.
14.1 RIGHT TO TERMINATE. In the event the Premises are damaged
by fire or other insured casualty, and the insurance proceeds have
been made available therefor by the holder or holders of any mortgages
or deeds of trust or by the Landlord's insurance company covering the
Premises, the damage shall be repaired by and at the expense of
Landlord to the extent of such insurance proceeds available therefor,
provided such repairs can, in Landlord's sole opinion, be completed
within one hundred twenty (120) days after the occurrence of such
damage, without the payment of overtime or other premiums. Until such
repairs are completed, the Rent shall be abated in proportion to the
part of the Premises which is unusable by Tenant in the conduct of its
business; provided, however, if the damage is due to the fault or
neglect of Tenant or its employees or agents, there shall be no
abatement of Rent. If repairs cannot, in Landlord's sole opinion,
be made within said one hundred twenty (120) day period, Landlord shall
notify Tenant within twenty five (25) days of the date of occurrence of
such damage as to whether or not Landlord shall have elected to make
such repairs. If Landlord elects not to make such repairs which cannot
be completed within one hundred twenty (120) days, then either party
may, by written notice to the other, cancel this Lease as of the date
of the occurrence of such damage. Anything to the contrary contained
herein notwithstanding, in that event that due to such repairs being
made, the operation of Tenant's business is materially adversely
affected, to be determined in Tenant's reasonable discretion for a
period in excess of seventy-two (72) consecutive hours, Tenant's Rent
shall ▇▇▇▇▇ until Tenant is able to operate its business in the
Premises free of such material adverse impact, unless the damage is due
to the fault or neglect of Tenant or its employees or agents in which
case, there shall be no abatement of Rent. Tenant understands that
Landlord will not carry insurance of any kind on Tenant's furniture
and furnishings or on any fixtures or equipment removable by Tenant
under the provisions of this Lease, and that Landlord shall not be
required to repair any injury or damage to such Tenant's property
caused by fire or other cause, or to make any repairs or replacements
to or of improvements installed in the Premises by or for Tenant at
Tenant's cost.
14.2 INSURANCE. Landlord covenants and agrees that, throughout
the Term hereof, it will insure the Premises (excluding foundations,
excavations, and other non-insurable items) and the machinery boilers,
and equipment contained therein owned by Landlord (excluding any of
Tenant's property) against damage by fire and extended perils coverage
in the full replacement value of the Premises. Landlord will also,
throughout the Term, carry public liability and property damage
insurance with respect to the operation of the Premises in reasonable
amounts as would be carried by a prudent owner of a similar property
in the same locale, but in no event less than $2,000,000.00. Tenant
agrees to promptly pay any such insurance costs as described herein,
upon presentation of such related invoice by Landlord or Landlord's
agent. Notwithstanding any contribution by Tenant to the cost of
Landlord's insurance premiums, as provided for in this Subsection or
in Subsection 4.2 herein, Tenant acknowledges that it has no right to
receive any proceeds from any such insurance policies carried by
Landlord, and that such insurance will be for the sole benefit of
Landlord, with no coverage for Tenant for any risk insured against.
Tenant hereby agrees to insure their own personal property with
adequate levels of insurance sufficient to cover the full replacement
value of all such personal property. Tenant covenants and agrees that,
throughout the Term hereof, it will maintain in full place glass
insurance coverage and it will insure its personal property which is
located on the Premises in such reasonable amounts as would be carried
by a prudent Tenant of similarly leased property in the same locale.
Tenant shall also carry public liability insurance with an insurance
company in a minimum amount of $3,000,000.00. Tenant shall maintain
a policy of business interruption insurance during the Term of this
Lease.
15. WAIVER OF SUBROGATION. Landlord and Tenant agree that, if the
interests on which they are required to obtain insurance in connection with
the transaction contemplated hereby shall be damaged or destroyed during the
Term by a peril insurable under a standard fire and extended coverage policy
and whether or not such damage or destruction was caused by the neglect or
acts of the other party, except as set forth in Subsection 14.1 above,
neither party shall have any liability to the other or to any insurer of
the other for, or in respect of, such damage or destruction to the extent
covered by such insurance; and each party shall use commercially reasonable
efforts to require all policies of material damage insurance carried by such
party during the Term or any extension thereof to be endorsed with a
provision in and by which the insurer designated therein shall waive its
right of subrogation against the other. Landlord and Tenant shall
immediately notify the other if their respective insurance companies shall
not waive its right of subrogation as set forth above. The waiver of
subrogation hereby required shall extend only to the risks insured by the
policies required hereby.
16. INDEMNIFICATION. Except as concerns losses paid by insurance for
which Landlord is required to use commercially reasonable efforts to cause
its insurance company to waive the right of subrogation as described in
Paragraph 15, Tenant shall indemnify and save Landlord harmless from any
liability for damages to any person or any property in or upon the Premises,
including the personal property of Tenant and its employees, agents,
servants, customers or other invitees, and further from any loss, cost,
damage or expense (including reasonable attorney's fees) arising out of any
accident or other occurrence due directly or indirectly to the negligence
of Tenant, its employees, agents, servants, customers or other invitees.
Except as concerns losses paid by insurance for which Tenant is required to
use commercially reasonable efforts to cause its insurance company to waive
the right of subrogation as described in ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ shall
indemnify and save Tenant harmless from any liability for damages (including
reasonable attorney's fees) arising out of the negligence or willful
misconduct of Landlord. Landlord shall not be held liable hereunder with
respect to the repair or maintenance of any portions of the Premises
required to be repaired or maintained by Landlord as aforesaid (so long as
Landlord's failure to perform such repair and maintenance obligations have
not materially damaged or adversely affected Tenant's business operations),
unless Landlord shall neglect to make such repairs or perform such
maintenance after due notice in writing and a reasonable opportunity to
correct the same. In addition, and notwithstanding any indemnity given
hereunder, Tenant shall not hold or attempt to hold Landlord liable for any
injury or damage, either proximate or remote, occurring through or caused by
fire, water, or any repairs or alterations to the Premises or otherwise; or
liable for any injury or damage occasioned by defective wiring or breakage
or stoppage or plumbing or sewage upon the Premises, whether said breakage
or stoppage results from freezing, or otherwise, unless such damage is caused
by Landlord's negligence or willful misconduct. All personal property of
Tenant that is kept, stored or maintained at the Premises is done so at the
sole risk of Tenant only.
17. ENTRY BY LANDLORD. Landlord and its agents shall have the right
to enter the Premises at all reasonable times, upon prior notification to
Tenant, for the purpose of examining and inspecting the same. If Landlord is
called upon or required to supply any services to Tenant hereunder, or to
show same to prospective purchasers or tenants of the Premises, and to make
such alterations, repairs, improvements, or additions, whether structural or
otherwise, to the Premises or to the Premises as Landlord may deem necessary
or desirable. Landlord may enter the Building by means of a master key or
electronic access card (in cases of emergency only), without liability to
Tenant except for any failure to exercise due care for Tenant's property,
and without affecting this Lease. Landlord shall use reasonable efforts on
any such entry not to unreasonably interrupt or interfere with Tenant's use
and occupancy of the Premises.
18. ASSIGNMENT OR SUBLEASE. Tenant shall not assign or in any manner
transfer this Lease or any interest therein, nor sublet said Premises or any
part or parts hereof, nor permit occupancy by anyone without the prior
written consent of Landlord, which consent shall not be unreasonably withheld
or delayed. In the event of any assignment or subletting, Tenant shall
nevertheless at all times remain fully responsible and liable for the payment
of the rent and for compliance with all its other obligations under the
terms, provisions and covenants of this Lease. Any assignment to an
affiliated company or subsidiary of Tenant shall be subject to Landlord's
review and approval of the capitalization and financial condition thereof,
not to be unreasonably withheld, or delayed. Any collection directly by
Landlord from the assignee or subtenant shall not be construed to constitute
a novation or a release of Tenant from the further performance of its
obligations under this Lease.
Anything to the contrary contained herein notwithstanding, Tenant may
assign or sublet this lease, without obtaining the consent of Landlord to
any corporation into or with which Tenant may be merged or consolidated or
to any entity which shall be a parent or successor of Tenant. For purposes
of this Section 18, a "successor" of Tenant shall mean the following:
A "successor" of Tenant shall mean:
A corporation in which or with which Tenant or its parent, its
corporate successors or assigns, is merged or consolidated,
in accordance with applicable statutory provisions for merge
or consolidation of corporations, provided that by operation
of law or by effective provisions contained in the instruments
of merger or consolidation, the liabilities of the corp-
orations participating in such merger or consolidation are
assumed by the corporation surviving such merger or created
by such consolidation;
A corporation acquiring this Lease and the Term hereby demised
and a substantial portion of the property and assets of the
Tenant, its corporate successor or assigns; or
A corporation acquiring a majority of the issued and outstanding
stock of Tenant.
In the event of any transfer permitted hereunder which does not require
Landlord's prior consent, Tenant shall nevertheless be required to furnish
Landlord, within thirty (30) days of said transfer, with a copy of a fully
executed Assignment and Assumption Agreement wherein the assignee agrees to
assume and perform all of Tenant's obligations under the Lease and be bound
by all of its terms and conditions.
19. DEFAULT BY TENANT.
19.1 EVENTS OF DEFAULT. Each one of the following events is
herein referred to as an "event of default":
19.1.1 Tenant shall fail to make due and punctual payment
of Rent or any other amounts payable hereunder and such failure
shall continue for five (5) days after receipt of written notice
from Landlord; provided, however, Tenant shall not be entitled to
more than two (2) notices of a delinquency in payment during any
calendar year and if thereafter during such calendar year any Rent
or other amounts owing hereunder are not paid when due, a default
shall be considered to have occurred even though no notice thereof
is given;
19.1.2 Tenant shall permanently vacate or abandon the
Premises;
19.1.3 This Lease, the Premises or any part or parts of
the Premises shall be taken upon execution or by other process of
law directed against Tenant, or shall be taken upon or subject to
any attachment at the instance of any creditor of or claimant
against Tenant, and said attachment shall not be discharged or
disposed of within fifteen (15) days after the levy thereof;
19.1.4 To the extent permitted by law, the filing of any
petition or the commencement of any voluntary case or proceeding
by the Tenant or involuntary proceeding that is not dismissed
within sixty (60) days under any provision or chapter of the
Federal Bankruptcy Act, the Federal Bankruptcy Code or any other
federal or state law relating to insolvency, bankruptcy or
reorganization; or the adjudication that the Tenant is insolvent
or bankrupt, or the entry of an order for relief under the Federal
Bankruptcy Code with respect to Tenant;
19.1.5 The insolvency of the Tenant or the execution by
the Tenant of an assignment for the benefit of creditors; or the
convening by Tenant of a meeting of its creditors, or any class
thereof, for the purposes of effecting a moratorium upon or
extension or composition of Tenant's debts.
19.1.6 Tenant shall fail to perform any of the other
agreements, terms, covenants or conditions hereof on Tenant's
part to be performed hereunder, and such non-performance shall
continue for a period of fifteen (15) days after written notice
thereof by Landlord to Tenant, or if such performance cannot be
reasonably performed within such fifteen (15) day period, Tenant
shall not in good faith have commenced such performance within
such fifteen (15) day period and shall not thereafter diligently
proceed to completion.
19.2 REMEDIES OF LANDLORD. If any one or more events of default
and the expiration of any applicable notice and cure provision shall
occur, then Landlord shall have the right at Landlord's election, then
or at any time thereafter, to the extent permitted by law, without
demand or notice, to re-enter and take possession of the Premises or
any part thereof and repossess the same as Landlord's former estate and
expel Tenant and those claiming through or under Tenant, and remove the
effects of both or either, without being deemed guilty of any manner of
trespass, and without prejudice to any remedies for arrears of rent or
breach of covenants or prior conditions. Should Landlord elect to
re-enter as provided in this Subsection, or should Landlord take
possession pursuant to legal proceedings or pursuant to any notice
provided for by law including a proceeding for possession pursuant to
Colorado's Forcible Entry and Unlawful Detainer Statutes, Landlord may,
from time to time, without terminating this Lease either:
19.2.1 In the event of any default as described under
Sections 19.1.1 through 19.1.5 occurs, or a material default
under Section 19.1.6 occurs, and any such default remains uncured
for a thirty (30) day period, Landlord may require Tenant to
either, at Tenant's option: (1) post either a surety bond in an
amount equivalent to one month's Base Rent and Additional Rent,
or (2) deposit with Landlord as a Security Deposit an amount
equivalent to one month's Base Rent and Additional Rent, which
Surety Bond or Security Deposit shall be held by Landlord. Any
Security Deposit shall be interest bearing and Landlord shall
invest such Security Deposit prudently in a reputable government
insured financial institution and shall insure that such Security
Deposit earns a commercially reasonable interest rate.
19.2.2 Relet the Premises or any part thereof, either alone
or in conjunction with other portions of the Premises of which the
Premises are a part, 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 Term of this Lease) and on such conditions and upon
such other terms (which may include concessions of free rent and
alteration and repair of the Premises) as Landlord, in its sole
discretion, may determine, and collect and receive the rents
therefor. Landlord shall use reasonable efforts to relet the
Premises after all other space available for leasing in the
Premises has been let, but, Landlord shall not have any duty to
lease the Premises below the then current market rental rates
being obtained for competing buildings in Longmont, Colorado and
shall in no way 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 such re-entry or taking
possession of the Premises by Landlord shall be construed as an
election on Landlord's part to terminate this Lease unless a
written notice of such intention be given to Tenant. No notice
from Landlord hereunder or under a forcible entry and unlawful
detainer statute or similar law shall constitute an election by
Landlord to terminate this Lease unless such notice specifically
so states. Landlord reserves the right following any such re-entry
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 said notice; or
19.2.3 Should Landlord elect to take possession of the
Premises as provided in this Subsection 20.2 without terminating
the Lease, Tenant shall pay to Landlord (i) the Rent and other sums
as herein provided, 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 Landlord's
expenses in connection with such reletting, including, but without
limitation, all repossession costs, brokerage commissions, legal
expenses, attorneys' fees, expenses of employees, alteration,
remodeling and repair costs and expenses of preparation for such
reletting. If, in connection with any reletting, the new term
extends beyond the Term of the lease, 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 aforesaid
will be made in determining the net proceeds received from such
reletting; any rent concession will be apportioned over the term
of the new lease. Tenant shall pay such amounts to Landlord
monthly on the day on which the Rent and all other amounts owing
hereunder would have been payable if possession had not been
retaken and Landlord shall be entitled to receive the same from
Tenant on each such day; or
19.2.4 To give Tenant written notice of its intention to
terminate this Lease on the date of such given notice, or on any
later date specified therein, and on the date specified in such
notice, Tenant's right to possession of the Premises shall cease
and the Lease shall thereupon be terminated, except as to Tenant's
liability hereunder as hereinafter provided, as if the expiration
of the Term fixed in such notice were the end of the Term herein
originally demised. In the event this Lease is terminated pursuant
to the provision of this Subsection 19.2, or terminated pursuant
to a proceeding for possession under the Colorado Forcible Entry
and Unlawful Detainer Statutes 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 Term had this lease 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, but without
limitation, the expenses enumerated in Subsection (20.2.2) above.
Landlord shall be entitled to collect such 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 the same 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 the bargain and
not as a penalty, an amount equal to the worth at the time of
termination of the excess, discounted to its present value using a
discount factor of the then current rate of the 3 year U.S.
securities t-▇▇▇▇, if any, of the amount of Rent reserved in this
lease for the balance of the Term hereof. over the then reasonable
rental value of the Premises for the same period plus all amounts
incurred by Landlord in order to obtain possession of the Premises
and relet the same, including attorneys' fees, reletting expenses,
alterations and repair costs, brokerage commissions and all other
like amounts. It is agreed that the "reasonable rental value"
shall be the amount of rental which Landlord is able to obtain
as Rent for the remaining balance of the Term.
19.2.5 If the Tenant is deemed insolvent, Landlord shall
have a first security interest in the then fair market value of
Tenant's partnership interest in Colorful Avenue, Ltd. a limited
partnership organized under the laws of the State of Colorado on
August 8, 2000. Landlord and Tenant agree to cooperate and to
negotiate in good faith the then fair market value of Tenant's
partnership interest. If Landlord and Tenant are unable to agree
on the fair market value, Landlord and Tenant agree to select a
mutually satisfactory third party reputable and independent
accounting firm or appropriate appraisal firm to determine such
then fair market value and the decision of such third party
accounting or appraisal firm shall be binding on Landlord and
Tenant. Tenant covenants and agrees not to collateralize or
encumber in any way this partnership interest at any time during
the Term of this Lease. Tenant will reference this security
interest whenever listing its partnership interest as an asset.
19.3 CUMULATIVE REMEDIES. Suit or suits for the recovery of the
Rent and other amounts and damages set forth hereinabove may be brought
by Landlord, from time to time, at Landlord's election, and nothing
herein shall be deemed to require Landlord to await the date whereon
this Lease or the Term hereof would have expired by limitation had there
been no such default by Tenant, or no such termination, as the case may
be. Each right and remedy provided for in this Lease shall be
cumulative and shall be in addition to every other right or remedy
provided for in this Lease or now or hereafter existing at law or in
equity or by statute or otherwise including but not limited to suits
for injunctive relief and specific performance. The exercise or
beginning of the exercise by Landlord of any one or more of the rights
or remedies provided for in this Lease or now or hereafter existing at
law or in equity or by statute or otherwise shall not preclude the
simultaneous or later exercise by Landlord of any or all other rights
or remedies provided for in this Lease or now or hereafter existing at
law or in equity or by statute or otherwise. All such rights and
remedies shall be considered cumulative and non-exclusive. All costs
incurred by Landlord in connection with collecting any Rent or other
amounts and damages owing by Tenant pursuant to the provisions of this
Lease, or to enforce any provision of this Lease, including reasonable
attorneys' fees from the date such matter is turned over to any
attorney, shall also be recoverable by Landlord from Tenant.
19.4 NO WAIVER. No failure by Landlord to insist upon the strict
performance of any agreement, term, covenant or condition hereof or to
exercise any right or remedy consequent upon a breach thereof, and no
acceptance of full or partial payment of Rent during the continuance
of any such breach, shall constitute a waiver of any such breach or of
such agreement, term, covenant or condition. No agreement, term
covenant or condition hereof to be performed or complied with by Tenant,
and no breach thereof, shall be waived, altered or modified except by
written instrument executed by Landlord. No waiver of any breach shall
affect or alter this Lease, but each and every agreement, term, covenant
and condition hereof shall continue in full force and effect with
respect to any other then existing or subsequent breach thereof.
Notwithstanding any termination of this Lease, the same shall continue
in force and effect as to any provisions, which require observance or
performance by Landlord or Tenant subsequent to such termination.
20. SUBORDINATION. This Lease shall be subject and subordinate to:
(a) any reciprocal easement agreements or any other easements affecting the
Premises and (b) the lien of any mortgage, which Landlord may now or
hereafter place upon the Premises, and all terms, conditions and provisions
thereof, to all advances made, and to any renewals, extensions, modifi-
cations or replacements thereof, provided Tenant's quiet enjoyment of the
Premises is not disturbed. In the event that the Landlord's lender shall
agree to the sale or other conveyance of the Premises pursuant to the
exercise of any rights and remedies under a mortgage affecting the Premises
or otherwise, such sale shall be made subject to this Lease and the rights
of Tenant hereunder, provided Tenant's quiet enjoyment of the Premises is
not disturbed. Tenant agrees to attorn to the Landlord's lender or such
person who may acquire title as its new Landlord, and the Lease shall
continue in full force and effect as a direct lease between Tenant and
Landlord's lender or such other person, upon all the terms, covenants and
agreements set forth in this Lease, provided Tenant's quiet enjoyment of the
Premises is not disturbed. Tenant shall cooperate and use commercially
reasonable efforts to execute or obtain execution of such instruments as
Landlord may deem necessary to effectuate said subordination, sale,
foreclosure, and adornment within ten (10) business days of Landlord's
request. Such instruments may require Tenant to notify the Landlord's
lender of defaults by Landlord hereunder, to make rental payments to the
Landlord's lender upon proper notice, and to allow the Landlord's lender a
reasonable time to cure defaults hereunder, if Landlord has not done so.
Landlord shall obtain a subordination, non-disturbance and attornment
agreement from the current Landlord's lender in the form attached hereto
as Exhibit E within thirty (30) days of the execution of this Lease by both
Landlord and Tenant, and Landlord shall use best efforts to obtain a sub-
ordination, non-disturbance and attornment agreement from any future
Landlord's lender, in a form substantially similar to Exhibit E or
reasonably acceptable to Tenant and such Landlord's lender or other
institutional lenders. The subordination of Tenant's rights hereunder to
any future Landlord's lender shall be conditioned upon such future Landlord's
lender's execution and delivery of a subordination, non-disturbance and
attornment agreement in a form substantially similar to Exhibit E or
reasonably acceptable to Tenant and such Landlord's lender or other
institutional lenders. If Tenant fails to execute a subordination,
non-disturbance and attornment agreement in substantially the same form
as Exhibit E within ten (10) business of Landlord's request,Tenant hereby
appoints Landlord as its attorney-in-fact to execute such document in
Tenant's place.
21. ATTORNEY'S FEES. In the event of any litigation or arbitration
between Tenant and Landlord to enforce any provision of this Lease or any
right of either party hereto, the unsuccessful party to such litigation or
arbitration shall pay to the successful party all costs and expenses,
including reasonable attorney's fees, incurred therein. Moreover, if
Landlord, without fault, is made a party to any litigation instituted by
or against Tenant (other than litigation instituted by Tenant or Landlord
against the other), Tenant shall indemnify Landlord against, and protect,
defend, and save it harmless from, all costs and expenses, including
attorney's fees, incurred by Landlord in connections therewith. To the
extent permitted by law, Landlord and Tenant hereby waive the right to a
jury trial in any legal action or proceeding relating to this Lease.
22. ESTOPPEL CERTIFICATE. Tenant shall, at any time from time to
time, upon not less than ten (10) business days prior written notice from
Landlord, execute, acknowledge, and deliver to Landlord, to the extent true
and accurate, a statement in writing certifying that this Lease is
unmodified and in full force and effect (or if modified, stating the nature
of such modification and certifying that this Lease, as so modified, is in
full force and effect) and the dates to which the Rent and other charges are
paid, and acknowledging that Tenant is paying Rent on a current basis with
no offsets or claims, and there are not, to Tenant's knowledge, any incurred
defaults on the part of Landlord hereunder (or specifying such offsets,
claims, or defaults, if any are claimed). It is expressly understood and
agreed that any such statement may be relied upon by any prospective
purchaser or encumbrance of all or any portion of the Premises, or by any
other person to whom it is delivered. Tenant's failure to deliver such
statement within such time shall be conclusive upon Tenant that this Lease
is in full force and effect, without modification except as may be
represented by Landlord, that there are no uncured defaults in Landlord's
performance, and that not more than two (2) months rental has been paid in
advance.
23. HOLDING OVER. In the event of holding over by Tenant after the
expiration or termination of this Lease, the hold over shall be as a Tenant
at will and all of the terms and provisions of this Lease shall be applicable
during that period, except that Tenant shall pay Landlord on demand as
rental for the period of such hold over an amount equal to one and one-half
(1-1/2) the Rent which would have been payable by Tenant had the hold over
period been a part of the original Term of this Lease.
24. HAZARDOUS OR REGULATED SUBSTANCES. Tenant shall not cause or
permit the use, transportation, generation, storage, treatment or disposal
in the Premises of any hazardous, toxic or environmentally regulated
substances ("Hazardous Substances") other than the storage for pickup and
disposal as non-hazardous solid waste generated in the course of conducting
Tenant's normal business operations. Tenant shall not bring onto, store,
generate, treat, dispose of, or otherwise permit any Hazardous Substance on
the Premises or (to the extent in the control of Tenant) in the Premises,
except for the normal amounts of same which are necessary and normally used
for the regular and normal cleaning of the Premises, the normal operation of
its business, including copiers, fax machines and similar business machines,
and the conduct of electronic and mechanical parts cleaning and other
similar operations Tenant shall use all reasonable safeguards and shall
comply with all applicable laws and regulations in dealing with Hazardous
Substances. Tenant shall indemnify, defend and hold harmless Landlord for
any damage or liability resulting from Tenant's use, transport, storage,
generation, treatment or disposal any Hazardous Substance. Such indemnity
shall include, without limitation, any damage or liability which arises under
any federal, state, or local environmental law, including but not limited to
the Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. 9601 et seq. Notwithstanding any provision to the contrary in this
Lease, the indemnification in this section shall survive termination of this
Lease.
25. MISCELLANEOUS.
25.1 REPRESENTATIONS. Tenant acknowledges and agrees that it has
not relied upon any statements, representations, agreements or
warranties, except such as are expressed in this Lease.
25.2 AMENDMENTS OR MODIFICATIONS. No amendment or modification
of this Lease or any approvals or permissions of Landlord required under
this Lease shall be valid or binding unless reduced to writing and
executed by the parties hereto in the same manner as the execution of
this Lease.
25.3 SECTION HEADINGS. The section headings are inserted herein
only for convenience of reference and shall in no way define, limit or
describe the scope or intent of any provisions of this Lease.
25.4 BINDING EFFECT. Subject to the provisions hereof, the
benefits of this Lease and the burdens hereunder shall respectively
inure to and be binding upon the heirs, successors, personal
representatives and assigns of the parties.
25.5 FORCE MAJEURE. Whenever a period of time is herein provided
for either party to do or perform any act or thing, except for the
payment of moneys by Tenant, there shall be excluded from the
computation of such period of time any delays due to strikes, riots,
acts of God, shortages of labor, delays of any municipal, governmental
or quasi-governmental authority, delays by utility suppliers or any
cause or causes, whether or not similar to the enumerated, beyond the
parties' reasonable control or the reasonable control of their agents,
servants, employees and any contractor engaged by them to perform work
in connection with this Lease.
25.6 PROPERTY TAXES.
Personal Property Taxes. Tenant shall pay before delinquency any
personal property taxes attributable to the furniture, fixtures,
merchandise, equipment, or other personal property situated on the
Premises. If any such personal property taxes are levied against
Landlord or Landlord's property, and if Landlord pays the same (which
Landlord shall have the right to do) or if the assessed value of
Landlord's premises is increased by the inclusion therein of a value
placed on such property, and if Landlord pays the taxes based on such
increased assessment (which Landlord shall have the right to do),
Tenant upon demand shall repay to Landlord the taxes so levied against
Landlord or the proportion of such taxes resulting from such increase
in the assessment.
Real Property Taxes. Landlord shall pay, before delinquency, any real
property taxes attributable to the Premises. Tenant shall not be
responsible for the payment of any late fees or penalties in connection
with the payment of said real property taxes if such late fees or
penalties are assessed due to the fault of Landlord.
25.7 NON-WAIVER. No waiver of a condition or covenant of this
Lease by either party hereto shall be deemed to imply or constitute a
further waiver by such party of the same or any other condition or
covenant. No act or thing done by Landlord or Landlord's agents during
the Lease Term shall be deemed an acceptance of a surrender of the
Leased Premises, and no agreement to accept such surrender shall be
valid unless signed in writing by Landlord. The delivery of Tenant's
keys to any employee or agent of Landlord shall not constitute a
termination of this lease unless a written agreement has been entered
into with Landlord to this effect. No payment by Tenant, nor receipt
from Landlord, of a lesser amount than the Rent herein stipulated shall
be deemed to be other than on an account of the earliest stipulated
Rent, nor shall any endorsement or statement on any check or any letter
accompanying any check, or payment as Rent, be deemed an accord and
satisfaction, and Landlord shall accept such check for payment without
prejudice to Landlord's right to recover the balance of such Rent or
pursue any other remedy available to Landlord. If this Lease be
assigned, or if the Premises or any part thereof be sublet or occupied
by anyone other than Tenant, Landlord may collect Rent from the
assignee, sub-tenant or occupant and apply the net amount collected to
the Rent herein reserved, but no such collection shall be deemed a
waiver of the covenant herein against assignment and subletting, or the
acceptance of the assignee, sub-tenant or occupant as tenant, or a
release of Tenant from the complete performance by Tenant of the
covenants herein contained on the part of Tenant to be performed.
25.8 EASEMENTS. Landlord shall have the right to grant any
easement on, over, under and above the Premises for such purposes as
Landlord determines, provided that such easements will not materially
interfere with or adversely impact Tenant's business.
25.9 TIME. Time is of the essence hereof, and each party shall
perform its obligations and conditions hereunder within the time hereby
required.
25.10 UNENFORCEABILITY. If any clause or provision of this Lease
is illegal, invalid or unenforceable under present or future laws
effective during the Lease Term , then and in that event it is the
intention of the parties hereto that the remainder of this Lease shall
not be affected thereby, and it is also the intention of the parties to
this Lease that in lieu of each clause or provision of this Lease that
is illegal, invalid or unenforceable, the parties substitute a clause
or provision as similar as may be possible and be legal, valid and
enforceable.
25.11 PROVISIONS NEGOTIATED AND INDEPENDENT. Each and every
provision of this Lease has been independently, separately, and freely
negotiated by the parties, as if this Lease were drafted by both
Landlord and Tenant. The parties, therefore, waive any statutory or
common law presumption which would serve to have this document construed
in favor of, or against, either party.
25.12 INTERPRETATION AND VENUE. The terms of this Lease shall be
interpreted according to the laws of the State of Colorado. Tenant
consents to the enforcement by Landlord of Tenant's obligations
hereunder in the District Court in and for the County of Weld, Colorado.
25.13 LANDLORD'S EXCULPATORY. Anything contained in the
Commercial Lease to the contrary notwithstanding, Tenant agrees that it
shall look solely to the estate and property of the Landlord in the Land
and Building of which the Premises form a part, for the collection of
any judgment (or other judicial process) requiring the payment of money
by Landlord, in the event of any default or breach by Landlord with
respect to any of the terms, covenants and conditions of this Lease to
be observed and/or performed by Landlord, and no other property or
assets of Landlord shall become subject to levy, execution, attachment
or other enforcement procedures for the satisfaction of Tenant's
remedies. If the land and Building of which the Premises form a part
are transferred or conveyed, Landlord shall be relieved of all covenants
and obligations under this Lease thereafter accruing and Tenant shall
look to such transferee thereafter.
25.14 EXTRINSIC DOCUMENTS. The following written documents are
attached to this Lease and incorporated as a material part of it:
Exhibits A - E.
26. NOTICE. All Rent and other payments required to be made by Tenant
shall be payable to Landlord at the address set forth below, or at such
other address as Landlord may specify from time to time by written notice.
Any notice from Landlord to Tenant or from Tenant to Landlord shall be in
writing and may be served personally or by mail. If served by mail, it
shall be mailed by registered or certified mail, return receipt requested,
or by reputable overnight carrier, addressed to Tenant or Landlord as set
forth below, or at such other address as the parties may designate in
writing from time to time:
26.1 LANDLORD: Colorful Avenue, Ltd., c/o ▇▇▇▇▇▇▇ Realty Services,
Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇., #▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
("Landlord") and attention ▇▇▇▇ ▇▇▇▇▇▇▇.
26.2 TENANT: Concepts Direct, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention J. ▇▇▇▇▇▇▇ ▇▇▇▇▇.
27. NO MERGER. There shall be no merger of the leasehold estate
hereby created with the fee estate in the Premises or any part thereof if
the same person or entity acquires or holds, directly or indirectly, this
Lease or any interest in this Lease and the fee estate in the leasehold
Premises or any interest in such fee estate.
28. QUIET ENJOYMENT. Provided Tenant has performed all of its
obligations hereunder, Tenant shall peaceably and quietly hold and enjoy
the Premises for the Term, without hindrance from Landlord or any party
claiming by, through, or under Landlord, but not otherwise, subject to the
terms and conditions of this Lease and applicable Laws.
29. LIABILITY. The liability of Tenant to Landlord or Landlord to
Tenant for any default by the other under the terms of this Lease shall be
limited to actual direct damages only, and no consequential damages shall be
allowed.
30. ENTIRE AGREEMENT AND LIMITATION OF WARRANTIES. IT IS EXPRESSLY
AGREED BY TENANT, AS A MATERIAL CONSIDERATION FOR THE EXECUTION OF THIS
LEASE, THAT THIS LEASE, WITH THE SPECIFIC REFERENCES TO WRITTEN EXTRINSIC
DOCUMENTS, IS THE ENTIRE AGREEMENT OF THE PARTIES; THAT THERE ARE, AND WERE,
NO VERBAL REPRESENTATIONS, WARRANTIES, UNDERSTANDING STIPULATIONS, AGREEMENTS
OR PROMISES PERTAINING TO THIS LEASE OR THE EXPRESSLY MENTIONED WRITTEN
EXTRINSIC DOCUMENTS NOT INCORPORATED IN WRITING IN THIS LEASE. LANDLORD AND
TENANT EXPRESSLY AGREE THAT THERE ARE AND SHALL BE NO IMPLIED WARRANTIES OF
MERCHANTABILITY, HABITABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OF ANY
OTHER KIND ARISING OUT OF THE LEASE AND THERE ARE NO WARRANTIES WHICH EXTEND
BEYOND THOSE EXPRESSLY SET FORTH IN THIS LEASE. IT IS LIKEWISE AGREED THAT
THIS LEASE MAY NOT BE ALTERED, WAIVED, AMENDED OR EXTENDED EXCEPT BY AN
INSTRUMENT IN WRITING SIGNED BY BOTH LANDLORD AND TENANT.
Signed at Longmont, Colorado, this 13th day of September, 2000.
LANDLORD: TENANT:
COLORFUL AVENUE, LTD., CONCEPTS DIRECT, INC.
a Colorado limited partnership, a Delaware corporation
By: HWS Associates, LLC,
a Colorado limited liability company
Its General Partner,
By: _____________________________ By: ________________________
▇▇▇▇ ▇▇▇▇▇▇▇ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Its: Member Its: President
List of Exhibits
A: Premises Plat and Floor Plan
B: Legal Description
C. Rules and Regulations of Landlord
D. Operating Description
E. Subordination, Non-Disturbance and Attornment Agreement