Exhibit 10.29
LEASE AGREEMENT
THIS LEASE, made and entered into this _______ day of June, 1994 by and
between EASTPARK, a General Partnership (hereinafter referred to as "Landlord")
and MARYLAND NATIONAL MORTGAGE CORP., a Maryland Corporation (hereinafter
referred to as "Tenant").
1. DEFINITIONS
(a) "Premises" shall mean the area within the Building located in the
northwest side of the second (2nd) floor and outlined on the floor plan attached
to this Lease as Exhibit "A" and incorporated herein. The Premises contains
approximately [Text Deleted]. The Premises shall include the Building Standard
Improvements and Tenant Improvements as defined below.
(b) "Rentable Area" shall mean the gross area enclosed by the surface of
the exterior windows, the mid-point of any walls separating portions of the
Premises from those of adjacent tenants, the slab penetration line of all walls
separating the Premises from Service Areas, and the corridor side of walls
separating the Premises from Common Areas. The stipulated number of square feet
of Rentable Area in the Premises, as set forth in 1(a) above, is Landlord's
current estimate of such Rentable Area and such figure may be revised, at
Landlord's election, if Landlord's architect determines such estimate to be
inaccurate after examination of the final drawings of the Premises and the
Building.
(c) "Total Leaseable Area" shall mean all of the Rentable Areas within the
Building, including the Premises, that Landlord has made available for lease.
Landlord estimates the Total Leaseable Area of the Building to be approximately
31,860 square feet. During the term of this Lease, if Landlord or Landlord's
architect determines this estimate to be inaccurate, or if Landlord adds
Rentable Areas or deletes Rentable Areas in the Building as provided herein,
this figure may, at Landlord's election, be revised.
(d) "Property" shall mean inclusively all of the real property and
improvements located thereon, including without limitation, the Building and
Exterior Grounds, all of which the Premises is a part of, and all of which are
situated on ▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ II. The address of the Property is 1790
38th Street, Boulder, Colorado.
(e) "Building," as used in this Lease, shall mean an office building which
will be constructed by Landlord, at Landlord's expense, in accordance with the
Building plans dated 11/30/93 by Brothers & Vandervorst Architects (Project
#V8819). The "Building" shall include, without limitation: the building
structure, including the roof, roof drains, foundations, floors, exterior walls
and windows; exterior doors and entrances; fire and other emergency systems;
elevator car, shaft and equipment; the Total Leaseable Area, including the
Premises; all Common Areas; all Service Areas, and all other related building
improvements of a 36,000 square foot, three-story, office building, of which the
Premises is a part thereof.
(f) "Service Areas" shall mean those areas within the outside walls of the
Building used for elevator, mechanical rooms, building stairs, fire towers,
elevator shafts, flues, vents, stacks, pipe shafts and vertical ducts (but shall
not include any such areas for the exclusive use of a particular tenant).
(g) "Common Areas," as used in this Lease, shall mean those portions within
the Building which have been designated and improved by Landlord for common use;
including but not limited to, entryways, atrium, corridors, main and secondary
stairways, walkways, the elevator and elevator foyers, restrooms, shower and
locker facilities, mechanical rooms, janitorial closets, vending areas,
electrical and telephone closets, and other similar facilities and areas which
are provided for the common use and benefit of tenants generally and/or the
public, within the Building of which the Premises is a part. Any portion of the
Building so included within the common areas shall be excluded therefrom when
designated by Landlord for a non-common use, and any portion thereof not now
included within the common areas shall be included when so designated and
improved for common use.
(h) "Exterior Grounds" shall mean the real property and the improvements
constructed thereon surrounding the Building, which has been provided for the
common use and benefit of tenants generally and/or the public, and which
includes such items as the parking lot (including curbs, gutters,
asphalt/concrete surfaces, striping and graphics), landscaping, sidewalks,
parking lot lighting, retaining walls, landscape watering systems, drainage
facilities, general building signage and/or directories, etc.
(i) "Operating Expenses" shall mean all direct and indirect costs and
expenses incurred in maintaining, operating, repairing and managing the Property
and the Premises, which costs and expenses shall include, but not be limited to,
the following: maintenance, repair and replacement costs; security; management
fees, wages and benefits payable to employees of Landlord whose duties are
directly connected with the operation and maintenance of the Property; all
services, utilities, supplies, repairs, replacements or other expenses for
maintaining and operating the Property and the Premises; the cost, including
interest, amortized over its useful life, of any capital improvement made to the
Property by Landlord after the date of this Lease which is required under any
governmental law or regulation that was not applicable to the Property at the
time it was constructed; the cost, including interest, amortized over its useful
life, of installation of any device or other equipment which improves the
operating efficiency of any system within the Property or Premises and thereby
reduces operating expenses; all other expenses which would generally be regarded
as operating and maintenance expenses which would reasonably be amortized over a
period not to exceed five years; all real property taxes and installments of
special assessments, including dues and assessments by means by deed restriction
and/or owner's associations which accrue against the Property of which the
Premises are a part during the term of this Lease; and all insurance premiums
Landlord is required to pay or deems necessary to pay, including public
liability insurance, with respect to the Property. The term "Operating Expenses"
does not include the following: repairs, restoration or other work occasioned by
the wind, the elements or other casualty which is covered by insurance; expenses
incurred in leasing to or procuring of tenants. leasing commissions, advertising
expenses and expense for the renovating of space for new tenants, any
depreciation allowance or expense except as provided for above; any principal or
interest on any mortgage or mortgages which may be a lien against the fee simple
of said premises or the Landlord's estate or interest therein; any franchise or
income tax which is or may become payable by the Landlord or any gift,
inheritance, transfer, estate, or succession tax by reason of any existing law
or any law which hereafter may be enacted; or operating expenses which are the
responsibility of Landlord.
(j) "Rent" shall mean all sums or money payable by Tenant to Landlord under
the terms of this Lease, including, without imitation, the Minimum Monthly Rent
set forth in Paragraph 5.1, Additional Rent as provided for in Paragraph 5.3,
and all other payments to Landlord hereunder.
(k) "Net Lease" means that the Rent payable by Tenant to Landlord, shall be
absolutely net to Landlord, so that this Lease shall yield to Landlord each
month during the term of this Lease, after the payment of all operating
expenses, the Minimum Monthly Rental specified in Paragraph 5.1, with
adjustments in the Minimum Monthly Rental being made throughout the Term of this
Lease in accordance with terms set forth herein.
(l) "Building Standard Improvements" includes such items as demising walls
separating the Premises from Common Areas, Service Areas and other tenants in
the Building; the ceiling; light fixtures; window coverings; heating and
air-conditioning mixing boxes and thermostats; fire sprinkler heads; all of
which are more specifically described in Exhibit B, attached hereto.
(m) "Tenant Finish Improvements" shall mean, in addition to Building
Standard Improvements, other improvements which are necessary for Tenants
occupancy and use of the Premises. These improvements will be installed in
accordance with Tenant's design and specifications, as described in Exhibit C
attached hereto, subject to the approval of Landlord, which approval shall not
be unreasonably withheld. Landlord will contract with a general contractor of
Landlord's choosing to install these improvements on behalf of the Tenant. A
cost estimate for the Tenant Finish Improvements will be reviewed and approved
by Tenant and Landlord prior to construction.
(n) "Tenant Finish Improvement Allowance." Landlord will provide Tenant
with an allowance, not to exceed Twelve Dollars ($12.00) per square foot times
the Rentable Area, to construct the Tenant Finish Improvements described in
Exhibit C. This allowance must be used immediately by Tenant, and can only be
used for the installation of the Tenant Finish Improvements. Any portion of this
allowance not used by Tenant within one (1) month after Tenant's occupancy of
the Premises, will be forfeited by Tenant. Tenant shall immediately reimburse to
Landlord, within fifteen (15) days after receipt of a statement therefore, all
costs incurred by Landlord in the installation of the Tenant Improvements which
exceeds this Tenant Finish Improvement Allowance, plus twenty (20%) percent for
overhead and supervision. Any equipment or work, other than those items
specifically enumerated in Exhibits B & C, which Landlord installs or constructs
on the Premises on Tenant's behalf, shall be paid for by Tenant within fifteen
(15) days after receipt of a statement from Landlord at cost, plus twenty (20%)
percent for overhead and supervision.
2. LEASE GRANT
Subject to and upon the terms herein set forth, Landlord leases to Tenant
and Tenant leases from Landlord the Premises.
3. TERM OF LEASE
3.1 COMMENCEMENT OF TERM.
(a) The Term of this Lease ("Commencement of Term"), including the payment
of Rent, shall commence upon Landlord's Substantial Completion of the Building
Standard Improvements and Tenant Finish Improvements within the Premises
("Plans"), "Substantial Completion" being defined as the occurrence of the
earlier of one of the following:
(i) on the day the Tenant occupies the Premises, or
(ii) January 15, 1995.
(b) Tenant agrees to occupy the Premises no later than thirty (30) days
after the date of Commencement of Term and, thereafter, to continuously occupy
the Premises during the remaining Term of this Lease.
(c) Prior to occupancy, Tenant shall have inspected and accepted the
Premises as to its conformity with the Plans, which acceptance shall not be
unreasonably withheld. The Premises shall not be deemed unacceptable for
occupancy if only minor or insubstantial details of construction, decoration,
mechanical adjustments, or any work contracted for by Tenant remains to be done.
(d) Unless Tenant provides written notice to Landlord to the contrary
within five (5) days following Tenant's occupancy of the Premises, Tenant shall
be deemed to have accepted the Premises in the condition that then exists.
3.2 TERMINATION OF TERM.
(a) The Term of this Lease, including Tenant's occupancy of the Premises
thereof, shall terminate FORTY-EIGHT (48) months after the beginning of the
first full month following the Commencement of Term of this Lease as described
in Paragraph 3.1 above.
(b) If Substantial Completion of the Premises has not occurred by the end
of the day dated March 31, 1995, Tenant shall have the right to terminate this
Lease by giving notice of such fact to Landlord in accordance with the notice
provisions contained in this Lease, and Landlord shall, within thirty (30) days
from receipt of said notice, return any sums paid to Landlord by Tenant under
the terms of this Lease. Tenant shall have no other claims against Landlord for
any damages, actual or consequential, which may result from Landlord's failure
to deliver the Premises.
3.3 OPTION TO EXTEND THE TERM.
Upon full and complete performance of all terms, covenants, and conditions
herein contained by Tenant and the timely payment of all Rent due under the
terms hereof, Tenant shall be given ONE (1) option(s) to renew the Term of this
Lease for an additional FORTY-EIGHT (48) month period (per each option), based
upon the same terms and conditions as herein contained, except Landlord shall
have the right to adjust the Minimum Monthly Rent, defined in Paragraph 5.1, to
an amount equal to the then current market Net Lease Rate for similar space in
Boulder, Colorado. In no event shall the total renewals exceed a total of
FORTY-EIGHT (48) months. In the event Tenant desires to exercise said option,
Tenant shall give written notice of such fact to Landlord no less than one
hundred twenty (120) days nor more than one hundred fifty (150) days prior to
the termination of this Lease. Within fifteen (15) days following Landlord's
receipt of such notice, Landlord shall advise Tenant of the current market Net
Lease Rate. Tenant shall have fifteen (15) days following Tenant's receipt of
such notification, to reject the current market Net Lease Rate by providing
written notice of such rejection to Landlord which rejection shall also operate
as Tenant's cancellation of Tenant's exercise of any renewal option and the
Lease shall then terminate at the scheduled termination date. If Tenant does not
reject the current market Net Lease Rate as determined by Landlord within such
fifteen (15) days, then this Lease will renew according to the renewal option
exercised at such rate. At all times, Landlord shall have the complete
discretion to determine the current market Net Lease Rate for the Minimum
Monthly Rent for the first year of any renewal period.
3.4 HOLDOVER TENANCY.
If, after the expiration of the term of this Lease, Tenant shall remain in
possession of the Premises and continue to pay Rent without a written agreement
as to such possession, then Tenant shall be deemed a month-to-month Tenant and
the rental rate during such hold-over tenancy shall be equivalent to the Rent
due for the last month of tenancy under this Lease plus fifty (50%) percent. No
holding over by Tenant shall operate to renew or extend this Lease without the
written consent of Landlord to such renewal or extension having been first
obtained.
4. IMPROVEMENT DEPOSIT
Tenant has deposited contemporaneously with Tenant's execution of this
Lease, TWO THOUSAND EIGHT HUNDRED AND NO/100's DOLLARS ($2,800.00) ("Security
Deposit") to retained by Landlord as security for Tenant's faithful performance
of all the terms and conditions of this Lease, including, without limitation,
payment of all Rent. The Security Deposit shall be held by Landlord without
liability for interest and as security for the performance by Tenant of Tenant's
covenants and obligations under this Lease, it being expressly understood that
the Security Deposit shall not be considered an advance payment of Rent or any
type or a measure of Landlord's damages in case of default by Tenant. Landlord
may commingle the Security Deposit with Landlord's other funds. Landlord may,
from time to time, without prejudice to any other remedy, use the Security
Deposit to the extent necessary to make good any arrearages of Rent or to
satisfy another covenant or obligation of Tenant hereunder. Following any such
application of the Security Deposit, Tenant shall pay to Landlord on demand the
amount so applied in order to restore the Security Deposit to its original
amount. If Tenant is not in default at the termination of this Lease and has
paid in full all Rent, then Landlord will return to Tenant within thirty (30)
days following termination of this Lease. the balance of the Security Deposit
remaining after any such application. If Landlord transfers it interest in the
Premises during the term of this Lease, Landlord may assign the Security Deposit
to the transferee and thereafter shall have no further liability for the return
of such Security Deposit.
5. RENT
Tenant agrees to pay in advance on the First day of each and every calendar
month during the Term of this Lease hereof, to Landlord at its address specified
in this Lease, or at such other place as Landlord may from time to time
designate in writing, without notice, demand, set-off, or abatement, the
following as Rent for the Premises:
5.1 MINIMUM MONTHLY RENTAL.
(a) The "Minimum Monthly Rent" to be paid by the Tenant to the Landlord
during the term of this Lease, including all Lease extension periods, shall be
TWO THOUSAND SEVEN HUNDRED SIXTY-FIVE AND 13/100'S DOLLARS ($2,765.13 per
month).
(b) The first month's Minimum Monthly Rent of $2,765.13 shall be due and
payable upon the execution of this Lease, with proper adjustments to be made if
Commencement of Term does not occur on the first day of the month.
(c) The Minimum Monthly Rent is based upon an annual Net Lease Rate of
$11.80 per square foot of Rentable Area.
(d) All sums due under this Lease shall be paid in lawful money of the
United States.
5.2 MINIMUM MONTHLY RENT ADJUSTMENTS.
At the option of Landlord, on each anniversary of this Lease, including all
renewal Periods, Landlord may adjust the "Minimum Monthly Rent" due under the
terms hereof by the Percentage increase in the U.S. Bureau of Labor Statistics
Consumer Price Index, "All Urban Consumers," "All Items" 1967 = 100, for the
Denver Metropolitan Area ("Index"). It is acknowledged that the "Minimum Monthly
Rent" set forth herein is based upon the "All Items" Index published for the
1994 "January-June" Average (hereby known as the "Base Index"). Such adjustment
shall be accomplished by multiplying the "Minimum Monthly Rent" established in
Paragraph 5.1 above by twelve (12) (the "Minimum Yearly Rent"), and then
multiplying the Minimum Yearly Rental by a fraction (the denominator of said
fraction being the Base Index, the numerator of the fraction being the most
recently published corresponding Index preceding the first day of the lease year
for which the adjustment is made) and then dividing the Minimum Yearly Rental by
twelve (12) to arrive at the new Minimum Monthly Rent. The increased Minimum
Monthly Rent, as so determined, shall commence as of the first day of the month
immediately following the annual anniversary date and shall continue in equal
monthly installments until readjusted as herein provided. In the event said
Index ceases to be made available, Landlord shall use as a basis of calculation
such Other nationally recognized index as Landlord shall determine in Landlord's
reasonable discretion. In no event, shall the "Minimum Monthly Rent" ever be
decreased below the "Minimum Monthly Rent" for the immediately preceding year.
5.3 ADDITIONAL RENT.
This is a Net Lease and Tenant agrees to pay to Landlord within thirty (30)
days after Landlord renders a statement therefore to Tenant, as Additional Rent,
Tenant's proportionate share of all Operating Expenses incurred by Landlord
including without limitation those expenses more particularly described in
Paragraphs 7, 16, 22, 24 and 25 hereof. Except as otherwise provided herein, all
Operating Expenses will be prorated according to their relation to the Total
Leasable Area of the Building. Therefore, Tenant's share of all Operating
Expenses is EIGHT AND 83/100's PERCENT (8.83%). If the Total Leasable Area of
the Building or Rentable Area of the Premises should change during the term
hereof, Landlord will adjust Tenant's percentage accordingly.
Without in any way limiting the foregoing, Tenant agrees to deposit with
Landlord on the first day of each month, during the term of this Lease, as
Additional Rent, $1,220.00 per month, which sum shall be held, without liability
for interest, in escrow ("Operating Expense Escrow"), so that Landlord shall
have a sufficient amount available for the payment of all Operating expenses
when they become due and payable. It is recognized that $1,220.00) is only an
estimate. Accordingly, appropriate adjustments in the Operating Expense Escrow
and the future monthly payment schedule may be made based upon the actual
statements for the Operating Expenses. In the event a deficiency exists in the
Operating Expense Escrow at any time during the term of this Lease, Tenant shall
promptly pay any such deficiency within thirty (30) days after receipt of such
notice. In the event any excess is paid by Tenant within any quarter of one year
of this Lease, Landlord shall credit to Tenant such excess. Upon reasonable
request Landlord will provide Tenant with an accounting of all amounts which
make up the Operating Expenses. Landlord may commingle the Operating Expense
Escrow with Landlord's other funds. Without limiting the foregoing, in the event
Landlord's lender(s) should require Landlord to escrow for real estate taxes
and/or property insurance with the lender(s), then the proportional monthly
amount deposited by Tenant with Landlord for the payment of real estate taxes
and/or insurance shall be based upon the amount Landlord is required to deposit
with Landlord's lender(s).
It is further agreed that if any real estate tax is payable in full before
the expiration of the fiscal tax year, whether in installments or by lump sum
payment, the monthly payments by Tenant shall be in amounts such that there
shall be a fund in Landlord's hands sufficient to meet the payment or any tax or
installment thereof as it falls due. In the case of special assessments which
are imposed during the term hereof, together with interest on deferred payments,
Landlord and Tenant agree, at Landlord's sole option, to take such steps as may
be prescribed by law to take advantage of any opportunity to pay any such
assessment in the maximum number of installments. Tenant shall be obligated for
Tenant's pro rata portion of any interest imposed upon the installment payment
of any such assessment.
6. USE OF PREMISES
Tenant shall use the Premises for the purpose or a Professional Office.
Tenant shall refrain from the sale of merchandise and performance of services
not usually incidental to such business. The operation of any other business on
the Premises is hereby expressly prohibited. Tenant shall keep the business
being conducted on the Premises open for business during normal business hours
of all business days applicable to such business. Nothing in this Lease shall be
construed as granting Tenant an exclusive right to the sale or furnishing of any
particular merchandise or service. Tenant shall continuously and uninterruptedly
during the term of this Lease occupy and use the Premises for the purposes
hereinabove specified unless prevented from so doing by causes beyond Tenant's
control. No auction, fire or bankruptcy sales may be conducted in the Premises
without the prior written approval and consent of Landlord. Tenant shall not
carry any stock of goods or do anything in or about the Premises which will, in
any way, void or make voidable or tend to increase the rates for any insurance
on the Premises or the Property. Tenant agrees to pay, as Additional Rent, an
amount equal to any increase in the insurance premiums that may be charged
during the term of this Lease for the amount of the insurance carried by
Landlord on the Property when such increase results from activities carried on
by Tenant on the Premises, whether or not Landlord has consented to the same.
7. SERVICES TO BE PROVIDED BY LANDLORD
Except as otherwise provided for in this Lease, Landlord is not required to
pay for any utility services, supplies or upkeep in connection with the Premises
at Property. However, because the Premises is located in a multi-tenant
building, Landlord will provide and supervise, for the benefit of Tenant and
other tenants of the Building, the following services:
(a) All heat and air conditioning, water, sewer, gas and electricity used
and consumed in the operation and maintenance of the Property and Premises;
(b) Routine maintenance of central heat and air conditioning equipment for
the Building, to provide such temperatures and in such amounts as are considered
to be customary for similar office buildings in Boulder, Colorado,
(c) Routine maintenance and general upkeep of the Property;
(d) Routine janitorial services within the Premises and Common Areas of the
Building. Routine janitorial service within the Premises shall mean vacuuming
the carpet, emptying trash cans and light dusting of surface areas, not more
than three (3) times a week. If more service is required in the Premises, Tenant
will be responsible to immediately reimburse Landlord for any increased costs
incurred by Landlord in providing same;
(e) General window washing of all Building exterior glass, not more than
three (3) times per year on the outside or more than one (1) time per year on
the inside;
(f) Repairing and maintaining in a manner deemed appropriate by Landlord,
the roof, exterior walls, parking lot, and all other improvements of the
Property (excluding the Premises per Paragraph 9 herein); and
(g) Repair or replacement of all glass on the Property, excluding all glass
located inside the Premises, but including all exterior windows and any other
glass surrounding the Premises.
In accordance with Paragraph 5.3 herein, Tenant agrees to promptly
reimburse Landlord, as Additional Rent, for any and all costs and expenses
incurred by Landlord in providing the above. Tenant's proportional share is
EIGHT AND 83/100's PERCENT (8.83%).
The failure by Landlord to any extent to furnish any service, or the
interruption or termination of these defined services in whole or in part, or
any resulting damage Tenant may incur therefrom, shall not render Landlord
liable in any respect for any damages, actual or consequential, which may result
therefrom, not be construed as an eviction of Tenant, nor work an abatement of
Rent, nor relieve Tenant from the obligation to fulfill any covenant or
agreement hereof, unless the same shall have directly resulted from the gross
negligence or willful misconduct of the Landlord, its employees, agents or
contractors. Should any or the equipment or machinery used in the provision of
such services for any cause cease to function properly, Tenant shall have no
claim for offset or abatement of Rent or damages on account of an interruption
in service occasioned thereby or resulting therefrom. However, if interruption
of service should continue unabated for more than five (5) consecutive business
days after written notice to Landlord, Tenant may then elect to repair the
problem, at Tenant's cost and expense. If the repair is for areas outside of the
Premises, then Tenant may offset the charges for said repair, less Tenant's
proportional share of said expense, from the rent.
8. TENANT RESPONSIBILITY FOR UTILITY SERVICES
Tenant warrants that Tenant will not overload the electrical service,
heating or air conditioning systems, or any other utility service within the
Building and Premises. Tenant will not install any fixtures Or equipment which
exceeds either the rated capacities at design loads of the Premises and Building
and/or any fixtures or equipment which would tend to use more utilities (gas,
electricity, water, sewer, telephone, etc.) than what is typical for the use
specified in Paragraph 6 herein. This includes, but is not limited to, the
installation or dishwashers, showers, air conditioned computer rooms, special
lighting, an excessive number of computers, etc. Tenant is prohibited from using
any type of manufacturing equipment within the Building and Premises. Tenant
shall, within ten (10) days after receiving notice from Landlord, remove such
equipment to achieve compliance. Alternatively, upon receiving Landlord's prior
written approval, such fixtures or equipment may remain in the Premises,
provided however, Tenant shall pay for all costs of installation and maintenance
of transformers, wiring, air conditioning and other items required by Landlord,
in Landlord's discretion, plus pay for all increased utility charges and/or
other expenses as may be determined appropriate by Landlord.
9. TENANT MAINTENANCE, CARE AND REPAIR OF PREMISES
Except as otherwise expressly provided herein. Landlord shall not be
required to maintain or make any repairs to the Premises. Tenant agrees that
Tenant will be responsible, at Tenant's own cost and effort, to maintain and
make all repairs to the Premises, including, but not limited to:
(a) Keep and maintain the interior of the Premises, including without
limitation, plumbing, heating and air conditioning system, electrical systems,
telephone and cable services, carpet and other floor covering, walls, paint and
other wall coverings, glass, window coverings, ceilings, doors and door hardware
(including all entry doors into the Premises) in good condition and repair at
Tenant's cost and expense; and
(b) Replace light bulbs or ballasts burned out within the Premises.
Tenant further agrees at the end of the term to return the Premises to
Landlord in substantially as good condition as when received, except for usual
and ordinary wear and tear.
10. IMPROVEMENTS AND ALTERATIONS BY TENANT
Tenant agrees not to make or allow to be made any alterations to the
Premises, install any vending machines on the Premises, add to any electrical or
other utility service, change window or door coverings, or place signs anywhere
on the Property or in any windows or doors of the Premises, without first
obtaining written consent of Landlord in each such instance, which consent may
be given on such reasonable conditions as Landlord may elect. Prior to the
cutting of any holes in any exterior surface or prior to any work being
performed and/or any equipment being installed on the roof by Tenant, the
written approval of Landlord, which approval may be withheld in the exercise of
Landlord's sole discretion, must be obtained by Tenant. The Tenant shall not
contract for any work or service which might involve the employment of labor
incompatible with Landlord's employees or other tenants and their employees or
contractors doing work or performing services by or on behalf of the Landlord.
As a condition to Landlord granting approval, Landlord shall have the right to
require Tenant to furnish a bond or other security acceptable to Landlord
sufficient to insure completion of and payment for any such work to be so
performed. Any and all alterations to the Premises shall become the property of
Landlord upon termination of this Lease (except for movable equipment or
furniture owned by Tenant). Landlord may, nonetheless, require Tenant to remove
any and all fixtures, equipment and other improvement installed on the Premises
and thereafter to restore the Premises. In the event that Landlord so elects,
and Tenant fails to remove such improvements, Landlord may remove such
improvements at Tenant's cost, and Tenant shall pay Landlord on demand the cost
of restoring the Building Standard Improvements, as defined in Exhibit B, to the
Premises.
11. LIENS
Tenant will not permit any mechanics', materialmen's, laborers' or other
liens to be placed upon the Premises or any other part of the Property, and
nothing in this Lease shall be deemed or construed in any way as constituting
the consent or request of Landlord, express or implied, by inference or
otherwise, to any person for the performance of any labor or the furnishing of
any materials to the Premises, or any part thereof. nor as giving Tenant any
right, power, or authority to contract for or permit the rendering of any
services or the furnishing of any materials that would give rise to any
mechanics', materialmen's, laborers' or other liens against the Premises or the
Property. In the event any such lien is attached to the Premises or Property,
then, in addition to any other right or remedy of Landlord, Landlord, may, but
shall not be obligated to, discharge the same. Any amount paid by Landlord for
any of the aforesaid purposes shall be paid by Tenant to Landlord on demand as
Rent.
12. BUILDING SIGNS AND GRAPHICS
Landlord shall provide and install, at Tenant's cost, all letters or
numerals on doors in the Premises and Tenant's name on the building directory(s)
by the main entrance(s) to the Building; all such letters and numerals shall be
in the standard graphics for the Building and no others shall be used or
permitted on the Premises or elsewhere without Landlord's prior written consent.
13. TENANT LIABILITY FOR OVERLOAD
Tenant shall be liable for the cost of any damage to the Premises or the
Property, including without limitation, floors, sidewalks and pavements, which
results from the movement of heavy articles. Tenant shall not unduly load or
overload the floors or any part of the Premises.
14. COMPLIANCE WITH LAWS
Tenant shall comply with all applicable covenants, conditions and
restrictions now or hereafter affecting the Premises, with all laws, ordinances,
rules, regulations, directives and requirements over the Premises or Tenant's
business, including, without limitation, those relating to health (including
restrictions on the use of any chemicals in the mechanical systems in the
Premises), safety, the Americans with Disabilities Act of 1990), noise,
environmental protection, waste disposal, water and air quality (including,
without limitation, the Clean Air Act), the use, storage and disposal of
hazardous materials ( in compliance with all environmental laws as defined in
paragraph 17, hereof), fire regulations of any governmental unit having
jurisdiction over the Premises and with the certificate of occupancy for the
Premises and shall not permit anything to be done on the Premise in violation
thereof. Tenant warrants that its business and all activities to be conducted or
performed in, on, or about the Premises shall comply with all laws. Upon written
demand, Tenant shall change, reduce, or discontinue any use of the Premises in
violation of the Laws and shall be responsible for all costs and expenses of any
fines levied or remedial or corrective actions necessary because of such
violations.
15. TENANTS USE OF HAZARDOUS WASTE
The Tenant covenants that it will not use or permit to be used any part of
the Premises or Property for the generation, treatment, storage or disposal of
Hazardous Materials without the written permission of Landlord, which permission
may be withheld in the exercise of Landlord's sole discretion. For the purposes
of this Lease, "Hazardous Materials" means any explosives, radioactive
materials, hazardous wastes, or hazardous substances, including, without
limitation, substances defined as "hazardous substances" in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended (42
U.S.C. 9601-9657); the Hazardous Materials Transportation Act of 1975 (49 U.S.C.
1801-1812); the Resource Conservation and Recovery Act of 1976 (42 U.S.C.
6901-6987); or any other federal, state, or local statute, law, ordinance, code,
rule, regulation, order, or decree regulating, relating to, or imposing
liability or standards of conduct concerning hazardous materials, waste, or
substances now or at any time hereafter in effect (collectively, "Environmental
Laws"). In the event Landlord permits the generation, treatment, storage or
disposal of any such Hazardous Materials, then prior to the termination of this
Lease, Tenant shall remove all such wastes from the Premises and Property which
were generated by Tenant or its subtenants or assignees during the term of this
Lease. In addition, if so directed by any federal, state or local governmental
or regulatory body, Tenant shall remove such wastes from any adjacent property
upon which such wastes and hazardous substances generated by the Tenant during
the term of this Lease may be located. Tenant shall not be responsible for and
shall not be required to remove any such wastes and hazardous substances which
were not generated by Tenant. Tenant will deliver to the Landlord (i) copies of
any documents received from the United States Environmental Protection Agency
and/or any state, county or municipal environmental or health agency concerning
the Tenant's operations upon the Premises; and (ii) copies of any documents
submitted by the Tenant to the United States Environmental Protection Agency
and/or any state, county or municipal environmental or health agency concerning
its operations on the Premises. The terms of this section shall survive the
termination of this Lease.
16. LANDLORD CONTROL AND CARE OF COMMON AREAS
(a) All Common Areas, Service Areas and Exterior Areas of the Property
shall at all times be subject to the exclusive control and management of
Landlord. The Landlord reserves the right and authority to change the areas,
locations and arrangements and to restrict the use of any and all common
facilities or areas of the Property and to do such other acts in and to said
areas and improvements as the Landlord shall determine to be advisable in the
best interest of the Property.
(b) Except as otherwise provided, Landlord shall keep and maintain the
Common Areas, Service Areas and Exterior Areas, all of which the Premises are a
part of, in good repair and condition, and in a manner deemed appropriate by
Landlord. In accordance with Paragraph 5.3 herein, Tenant agrees to promptly
reimburse Landlord, as Additional Rent, for any and all costs and expenses
incurred by Landlord in providing the above. Tenants proportional share is EIGHT
AND 83/100's PERCENT (8.83%).
17. TENANT USE AND CARE OF PROPERTY
All receiving and all refuse removal shall be made only by way of the rear
and/or other service door provided therefore. In the event the Premises shall
have no such door, then these matters shall be handled in a manner satisfactory
to Landlord. No storage of any material outside of the Premises shall be allowed
unless first approved by Landlord in writing, and then in only such ▇▇▇▇▇ as are
designated by Landlord. Tenant shall not commit or suffer any waste in the
Premises or Property nor shall Tenant permit any nuisance to be maintained on
the Premises, or Property, or permit any disorderly conduct, noise, odors, or
other activity having a tendency to annoy or disturb any occupants of any part
of the Building of which the Premises are a part and/or an adjoining property.
Tenant further agrees to be responsible to repair or replace any damage
done to the Property, caused by Tenant or Tenant's agents, employees, invitees,
or visitors, and such repairs shall restore the damaged Property to as good a
condition as it was in prior to such damage, and shall be effected in compliance
with all applicable laws; provided, however, if Tenant fails to make such
repairs or replacements promptly, Landlord may, at its option, make repairs or
replacements and Tenant shall pay the cost thereof to Landlord on demand as
Rent.
18. TENANT ACCESS TO PREMISES
Landlord shall provide Tenant non-exclusive access to the Premises through
and across land and/or other improvements owned by Landlord. Landlord shall have
the right to designate, during the term of this Lease, all such nonexclusive
access and other common facilities of the land and/or improvements of which the
Premises are a part.
19. PARKING
Throughout the term of this Lease, Landlord shall provide a reasonably
hard-surfaced area for off-street parking for use of visitors of Tenant in
common with visitors of other occupants or other portions or the Building or
which the Premises are a part. Tenant shall park all vehicles of whatever type
used by Tenant and/or Tenant's employees only in those areas which are
designated by Landlord for this purpose, and Tenant accepts the responsibility
of seeing that Tenant's employees park only in such areas as so designated.
Tenant shall, within five days after receipt of written notice from Landlord,
furnish Landlord the automobile license numbers of Tenant's vehicles and any and
all vehicles assigned or belonging to Tenant's employees.
20. FUTURE LANDLORD IMPROVEMENTS
Landlord reserves the right at any time to make alterations or additions to
the Property and/or to build additions or other structures adjoining the
Building. Landlord also reserves the right to construct other buildings and/or
improvements in the immediate area of the Property and to make alterations or
additions thereto, all as Landlord shall determine. Easements for light and air
are not included in the leasing of the Premises to Tenant. Landlord further
reserves the exclusive right to the Property except as provided for in this
Lease. Landlord also reserves the right at any time to relocate, vary, and
adjust the size of any of the Property's parking areas, or other areas relating
to the land and/or improvements of which the Premises are a part, provided,
however, that all such changes shall be in compliance with the minimum
requirements of governmental authorities having jurisdiction over the Property.
21. RULES AND REGULATIONS FOR THE PROPERTY
Landlord reserves the right to adopt and promulgate rules and regulations
applicable to the Premises and the Property of which the Premises are a part and
from time to time to amend or supplement said rules or regulations. Notice of
such rules and regulations and amendments and supplements thereto, shall be
given to Tenant. and Tenant agrees to comply with and observe rules and
regulations and amendments and supplements thereto, provided, however, the same
shall apply uniformly to all tenants of the Property.
22. REAL PROPERTY TAXES - RESPONSIBILITIES
Tenant shall be responsible for EIGHT AND 83/100's PERCENT (8.83%) of the
general real property taxes and/or special assessments which are levied and
assessed against the Property each year during the term hereof. Tenant shall
promptly reimburse Landlord for said taxes and/or assessments in accordance with
Paragraph 5.3 herein. In the event the first and last lease years, as
hereinabove defined, are not calendar years, the liability of Tenant under the
terms hereof shall be prorated with Tenant being liable for only those number of
days during which this Lease was in effect.
23. PERSONAL PROPERTY TAXES-RESPONSIBILITIES
Tenant shall be responsible and pay for any and all taxes and/or
assessments levied and assessed against any furniture, fixtures, equipment, and
items of similar nature installed and/or located in or about the Premises by or
for Tenant.
24. PROPERTY INSURANCE-RESPONSIBILITIES
(a) The Landlord shall have and maintain in effect all times, fire,
extended coverage, vandalism, and malicious mischief insurance in such amounts
as shall be determined appropriate by Landlord to insure the Property. Tenant
shall be responsible for EIGHT AND 83/100'S PERCENT (8.83%) of the insurance
premium and shall Promptly reimburse Landlord for said premium in accordance
with Paragraph 5.3 herein. If necessary, the amount due hereunder shall be
prorated on the basis of that portion of the term of this Lease as to the term
of the Policy for which the charge hereunder has been made.
(b) Tenant shall maintain at its expense, in an amount equal to full
replacement cost, fire and extended coverage insurance on all of its personal
property, including removable trade Fixtures, located in the Premises and in
such additional amounts as are required to meet Tenant's obligations pursuant to
Paragraph 27 hereof. If Tenant uses, in the Premises, any kind of steam or other
high pressure boiler or other apparatus which presents any possibility of damage
to the Premises or Property, or to the life or limb of persons within such
premises, Tenant agrees to carry appropriate boiler insurance in any amount
satisfactory to Landlord to indemnify against any loss resulting from any
explosion or other damage or liability.
(c) Tenant shall provide Landlord with current certificates of insurance
evidencing Tenant's compliance with this paragraph 24 and Paragraph 25 and
naming Landlord as an additional insured or loss payee, as the case may be.
Tenant shall obtain the agreement of Tenant's insurer to notify Landlord that a
policy is due to expire at least thirty (30) days prior to such expiration. Such
insurance may, at Tenant's election be carried under any general blanket
coverage of Tenant.
25. LIABILITY INSURANCE-RESPONSIBILITIES
(a) Tenant shall, at its expense, maintain a policy or policies of
commercial general liability insurance with respect to its activities in the
Premises and Property, with the premiums thereon fully paid on or before the due
date and issued by and binding upon an insurance company, which insurance
company shall have a minimum rating of "A" per the latest rating publication of
Property and Casualty Insurance by the A M Best Company and who are lawfully
doing business in the State of Colorado. Said insurance shall afford minimum
protection of not less than $1,000,000 combined single limit coverage of bodily
injury, property damage or combination thereof.
(b) Landlord shall not be required to maintain insurance against thefts
within the Premises.
(c) Landlord shall maintain liability insurance with respect to the
Properly in the form of one or more policies. such insurance to afford minimum
protection of not less than $1,000,000 combined single limit coverage of bodily
injury, property damage or combination thereof. Tenant shall be responsible for
EIGHT AND 83/100'S PERCENT (8.83%) of the insurance premium and shall promptly
reimburse Landlord for said premium in accordance with Paragraph 5.3 herein. If
necessary, the amount due hereunder shall be prorated on the basis of that
portion of the term of this Lease as to the term of the policy for which the
charge hereunder has been made.
26. WAIVER OF SUBROGATION RIGHTS
Except as otherwise provided in Paragraph 27(g), Landlord and Tenant each
hereby waives on behalf of itself and its insurers (none of which shall ever be
assigned any such claim or be entitled thereto due to subrogation or otherwise)
and all rights of recovery, claim action, or cause of action, against the other,
its agents, officers, or employees, for any loss or damage that may occur to the
Premises, or any improvements thereto, or the Property or any improvements
thereto, or any personal property of such party therein, by reason of fire, the
elements, or any other cause or causes which are insured against under the terms
of the standard fire and extended coverage insurance policies referred to in
Paragraph 24 and 25 hereof, regardless of whether such insurance is actually
maintained and regardless of the cause or origin, including negligence of the
other party hereto, its agents, officers, or employees.
27. DAMAGE TO PREMISES
(a) If the Premises or any part thereof shall be damaged by flood, fire or
other casualty, Tenant shall give prompt written notice thereof to Landlord.
(b) In the event the Premises and/or the Building of which the Premises are
a part shall be totally destroyed by fire or other casualty or be so badly
damaged that, in the sole opinion of Landlord, it is not feasible to repair or
rebuild same (whether or not the Premises shall have been damaged by the
casualty affecting the Building), or in the event any mortgagee of Landlord's
should require that the insurance proceeds, or any portion thereof, payable as a
result of a casualty be applied to the payment of the mortgage debt, or in the
event of any material uninsured loss to the Property or the Premises, Landlord
shall have the right to terminate this Lease by notifying Tenant, in writing, of
such termination within the later to occur of ninety (90) days after the date of
receipt by Landlord of Tenant's notice or within ninety (90) days after the date
of such casualty. Landlord shall have no liability to Tenant for the Landlord's
termination of the Lease in accordance with the provisions hereof, or for any
inconvenience or annoyance to Tenant or injury to the business or property of
Tenant resulting in any way from the occurrence of a casualty or from the repair
of any damage or destruction related thereto.
(c) If Landlord does not elect to terminate this Lease, Landlord shall
proceed with reasonable diligence to restore, first, the Building and all of its
Common and Service Areas and, second, the Premises to substantially the same
condition they were in immediately prior to the casualty occurrence. Landlord's
obligation to restore the Premises shall not exceed the scope of the work
required to be done by Landlord in originally constructing the Premises for
Tenant, nor shall Landlord be required to spend for such work an amount in
excess of the insurance proceeds actually received by Landlord as a result of
the casualty. Tenant agrees to resume occupancy upon Substantial Completion of
the reconstruction or, the improvements, Substantial Completion being defined as
the occurrence of the earlier of one of the following:
(i) on the day the Tenant re-occupies the Premises; or
(ii) five (5) days after Tenant has been notified by
Landlord, in writing, that the Premises are
complete and have been approved for re-occupancy
by the licensing authority of the City or
Boulder. Prior to re-occupancy, Tenant will have
inspected and accepted the Premises as to its
conformity with the Reconstruction Plans, which
acceptance will not be unreasonably withheld. The
Premises shall not be deemed unacceptable if
only minor or insubstantial details of
construction, decoration, mechanical
adjustments, or any work contracted for by Tenant
remains to be done.
(d) If the Premises shall be partially damaged by fire or other casualty
and, except if caused by Tenant's negligence. said Premises are not rendered
untenable thereby, as determined by Landlord, a pro rata reduction of the Rent
shall be allowed for the unoccupied portion of the Premises until Substantial
Completion of the reconstruction.
(e) If the Premises are rendered wholly untenable by fire or other
casualty, except if caused by Tenant's negligence, Tenant may, at its election,
with written notice being given to Landlord within ninety (90) days after the
date of such casualty, terminate this Lease as of the day of damage.
(f) If the Premises are tendered untenable but Tenant elects not to
terminate the Lease, except if caused by Tenant's negligence, the Rent shall
▇▇▇▇▇ in proportion to the loss of use of the Premises by Tenant until
Substantial Completion.
(g) If the Premises or any portion of the Property be damaged by fire or
other casualty resulting from the fault or negligence of Tenant or any of
Tenant's agents, employees, licensees, or invitees, the Rent hereunder shall not
be diminished, and regardless of whether this Lease is terminated, Tenant shall
be liable to Landlord for the cost of the repair and restoration of the Premises
and all other parts of the Property, to the extent such cost and expenses exceed
the amount of insurance proceeds actually received by Landlord, and Landlord
shall retain all other rights and remedies that Landlord may have at law, in
equity or pursuant to the Lease.
(h) Anything in this Lease to the contrary notwithstanding, if more than
fifteen percent (15%) of the Premises are damaged by fire or other casualty or
if all or any portion of the Premises is damaged by fire or other casualty
during the last year of the term (excluding any renewal terms, unless such fire
or casualty occurs during a renewal term) of this Lease, then Landlord may, at
its option, terminate this Lease by notifying Tenant in writing of such
termination within the later to occur of ninety (90) days after the date of
receipt by Landlord of Tenant's notice or within ninety (90) days after the date
of such casualty.
(i) In any event, proceeds from any insurance loss shall be paid to
Landlord for the repair and replacement of improvements erected upon the
Premises and for any unpaid rents due under the within Lease. In any event,
Landlord shall not be liable to Tenant in any manner whatsoever for any loss
sustained as a result of any damage to the Premises.
28. ENTRY BY LANDLORD
Landlord, and/or Landlord's agents and employees, shall have the right to
enter the Premises at all times during regular business hours and at all times
during emergencies, to examine the Premises, to show the Premises to lenders,
lenders contractors and to prospective purchasers of the Property, to make such
repairs, alterations, improvements, or additions as Landlord may deem necessary
or desirable, and Landlord shall be allowed to take all materials into and upon
said premises that may be required therefore without the same constituting an
eviction of Tenant in whole or in part, and the Rent reserved shall in no way
▇▇▇▇▇ while such repairs, alterations, improvements, or additions are being
made, by reason of loss or interruption of business of Tenant or otherwise.
During the six (6) months prior to the expiration of the term of this Lease or
any renewal thereof, Landlord may exhibit the Premises to prospective tenants
and/or purchasers, and may place upon the Premises the usual notices indicating
the Premises are for lease and/or sale.
Landlord shall use reasonable efforts to not materially interfere with
Tenant's business.
29. TENANT DEFAULT / REMEDIES OF LANDLORD
29.1 EVENTS OF DEFAULT.
The following events are referred to, collectively, as "Events of Default"
or, individually, as an "Event of Default":
(a) Tenant fails to pay by the 10th of any month any Rent or any other sum
due hereunder;
(b) Tenant breaches any other agreements, terms, covenants or conditions
which this Lease requires Tenant to perform, other than payment of Rent, and
such breach continues for a period of thirty (30) days after written notice from
Landlord to Tenant or, if such breach cannot be cured reasonably within such
30-day period, if Tenant fails to diligently commence to cure said breach within
thirty (30) days after written notice from Landlord and to complete such cure
within a reasonable time thereafter;
(c) Tenant vacates or abandons the Premises for more than ten (10)
consecutive business days;
(d) This Lease or the Premises or any part of the Premises are taken upon
execution or by other process of law directed against Tenant, or are taken upon
or subject to any attachment by any creditor of Tenant or claimant against
Tenant, and said attachment is not discharged or disposed of within fifteen (15)
days after its levy;
(e) Tenant Files a petition in bankruptcy or insolvency or for
reorganization or arrangement under the bankruptcy laws of the United States or
under any insolvency act of any state, or admits the material allegations of any
such petition by answer or otherwise, or is dissolved or makes an assignment for
the benefit of creditors;
(f) Involuntary proceedings under any such bankruptcy law or insolvency act
or for the dissolution of Tenant are instituted against Tenant, or a receiver or
trustee is appointed for all or substantially all of the property of Tenant, and
such proceeding is not dismissed or such receivership or trusteeship vacated
within sixty (60) days after such institution or appointment; or
(g) Tenant fails to occupy the Premises in accordance with the terms set
forth in Paragraph 3.1.
29.2 LANDLORD'S REMEDIES.
If any one or more Events of Default set forth in Paragraph 29.1 occurs
then Landlord has the right, at its election:
(a) To terminate this Lease in which event Tenant shall immediately
surrender possession of the Premises to Landlord, or
(b) Without terminating this Lease, and without terminating Tenant's
liability for payment of Rent or any other obligation hereunder, to terminate
Tenant's right to occupy and possess the Premises by reentering and taking
possession of the Premises or any part of the Premises, repossess the same,
expel Tenant and those claiming through or under Tenant, and remove the effects
of both or either, using such force for such purposes as many be necessary,
without being liable for prosecution, without being deemed guilty of any manner
of trespass, and without prejudice to any remedies for arrears of Rent or other
amounts payable under this Lease or as a result of any preceding breach of
covenants or conditions; or
(c) Without further demand or notice to cure any Event of Default and to
charge Tenant for the cost of effecting, such cure, including, without
limitation, reasonable attorneys' fees and interest on the amount so advanced at
the rate set forth in Paragraph 31, provided that Landlord will have no
obligation to cure any such Event of Default of Tenant.
No such reentry or taking possession of the Premises by Landlord, pursuant to
this paragraph 29.2, will be construed as an election on Landlord's part to
terminate this Lease unless a written notice of such intention in given to
Tenant. No written notice from Landlord under this Paragraph 29.2 or under a
forcible or unlawful entry and detainer statute or similar law will constitute
an election by Landlord to terminate this Lease unless such notice specifically
so states.
29.3 CERTAIN DAMAGES.
In the event that Landlord does not elect to terminate this Lease as
permitted in Paragraph 29.2(a), but on the contrary, elects to take possession
as provided in Paragraph 29.2(b) and terminate Tenant's right to possession of
the Premises, Tenant will pay to Landlord, at Landlord's election, damages based
upon one of the following calculations:
(a) CONTINUING RENT. The sum of the following amounts:
(i) Monthly Rent and other sums as provided in this
Lease, which would be payable under this Lease if
such repossession had not occurred, less
(ii) the net proceeds, if any, of any reletting of the
Premises after deduction all of Landlord's
reasonable expenses in connection with such
reletting, including, without limitation, all
repossession costs, brokerage commissions,
attorneys' fees, expenses of employees,
alteration and repair costs, and expenses of
preparation for such reletting.
If, in connection with any reletting, the new lease term extends beyond the
existing Term, or the premises covered by new lease includes other premises not
part of the Premises, a fair apportionment of the rent received from such
reletting and the expenses incurred in connection with such reletting as
provided in this paragraph will be made in determining the net proceeds from
such reletting, and any rent concessions will be equally apportioned over the
term of the new lease. Tenant will pay such rent and other sums to Landlord
monthly on the day on which the Rent would have been payable under this Lease if
possession had not been retaken and Landlord will be entitled to receive such
rent and other sums from Tenant on each such day.
(b) ACCELERATED RENT. An amount equal to Rent and other amounts which would
have been owing by Tenant for the balance of the Term less the net proceeds, if
any, of any reletting of the Premises by Landlord subsequent to such
termination, after deducting all of Landlord's expenses in connection with such
reletting, including, without limitation, (the expenses enumerated in Paragraph
29.3(a), which amounts shall be the total of the following:
(i) The amount, at the time the award of damages is
calculated, of the unpaid Rent which had been earned
at the time Tenant's right to possession was
terminated together with interest at the rate set
forth in Paragraph 31 herein;
(ii) The amount, at the time the award of damages is
calculated, of the unpaid Rent which accrues
after the time Tenant's right to possession was
terminated to the date of such award, together
with interest at the rate set forth in Paragraph
31 herein, less the amount of such rental loss
that Tenant proves could have been reasonably
avoided;
(iii) The amount, at the time the award of damages
is calculated, of the unpaid Rent that will
accrue after such date until the end of the term
of this Lease in effect at the time Tenant's
right to possession was terminated, less the
amount of such rental loss that Tenant proves
could have been reasonably avoided, which amount
shall be computed by discounting such amount at
the discount rate of the Federal Reserve Bank of
Kansas City, Missouri, at the time of award plus
one (1%) percent; and
(iv) Any other amount necessary to compensate Landlord for
all the detriment proximately caused by Tenant's
failure to perform its obligations under this Lease
or which in the ordinary course of things would be
likely to result therefrom.
29.4 MISCELLANEOUS REMEDIES.
Each right and remedy provided for in this Lease or existing at law or in
equity or by statute or otherwise, and the exercise or beginning of the
exercises by Landlord of any or all of such rights and remedies will not
preclude the simultaneous or later exercise by Landlord of any or all other of
such rights or remedies.
No payment by Tenant, or acceptance by Landlord, of a lesser amount than
shall be due from Tenant from Landlord shall be treated otherwise than a payment
on account. The acceptance by Landlord of a check for a lesser amount with an
endorsement or statement thereon, or upon any letter accompanying such check,
that such lesser amount is payment in full, shall be given no effect, and
Landlord may accept such check without prejudice to any other rights or remedies
which Landlord may have against Tenant.
No payment of money by Tenant to Landlord after (the termination of this
Lease in any manner, or after the giving of any notice (other than a demand for
the payment of money) by Landlord to Tenant, shall reinstate, continue or extend
the term of this Lease or affect any notice given to Tenant prior to the payment
of such money, it being agreed that after the commencement of a suit, Landlord
may receive and collect any sums of Rent due, and the payment if such sums of
money whether as Rent or otherwise, shall not waive said notice, or in any
manner affect any pending suit or judgment theretofore or subsequently obtained.
In any event, and regardless of whether a suit at law or in equity is
commenced, and in addition to any sums due hereunder. Tenant shall be obligated
to pay to Landlord all reasonable costs and expenses, including without
limitation all court costs and reasonable attorney's fees, suffered or incurred
as a result of any breach of Tenant's obligations hereunder.
In the event of such default by Tenant, and regardless of whether the
Premises shall be relet or repossessed by Landlord, any fixtures, additions,
furniture, and the like, then on the Premises may be retained by Landlord. In
the event Tenant is in default under the terms hereof and, at the sole
determination of Landlord, has abandoned the Premises, Landlord shall have the
right to remove all of the Tenant's property from the Premises and dispose of
said property in such manner as determined best by Landlord, all at the cost and
expense of Tenant and without liability of Landlord for the actions so taken.
No delay or omission of Landlord to exercise any right or power shall be
considered to be a waiver of any such default or acquiescence thereof. The
acceptance of Rent by Landlord shall not be deemed to be a waiver of any breach
of any of the covenants herein contained or of any of the rights of Landlord to
any remedies herein given.
30. NO IMPLIED WAIVER
The failure of Landlord to insist at any time upon the strict performance
of any covenant or agreement herein or to exercise any option, right, power or
remedy contained in the Lease shall not be construed as a waiver or a
relinquishment thereof for the future. No payment by Tenant or receipt by
Landlord of a lesser amount than the monthly installment of Rent due under this
Lease shall be deemed to be other than on account of the earliest Rent due
hereunder, 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 may accept such check or payment without prejudice to Landlord's
right to recover the balance of such rent or pursue any other remedy that may be
provided for in this Lease.
31. INTEREST ON PAST DUE OBLIGATIONS
Any amount due to Landlord not paid when due shall bear interest at One and
one-half Percent (1.5%) per month from due date until paid. Payment of such
interest shall not excuse or cure any default by Tenant under this Lease.
32. LATE CHARGES
The Landlord shall have the right to collect from Tenant as additional
Rent, in addition to any amounts due under Paragraph 7 above, a monthly
collection service charge for any payments due to Landlord hereunder which is
delinquent ten (10) days or longer, said charge being Twenty-Five and no/100's
Dollars ($25.00) or Three Percent (3%) of said payment, whichever sum shall be
greater.
33. LEGAL PROCEEDINGS
In the event of any proceeding at law or in equity wherein either party,
without being in default as to its covenants under the terms hereof, shall be
made a party to any litigation by reason of either party's interest in the
Premises or, in the event either party shall be required to commence any legal
proceedings relating to Tenant's occupancy of the Premises thereof and/or
Tenant's relation thereto, the prevailing party shall be allowed to collect all
costs and expenses incurred by the prevailing party, including a reasonable
attorney's fee. Further, in the event Landlord engages the services of an
attorney to enforce Landlord's rights under this Lease, Tenant shall pay, as
Additional Rent, such reasonable attorneys fees incurred by Landlord, whether or
not any legal proceeding is actually commenced.
Landlord and Tenant by this paragraph 33 waive trial by Jury in any action,
proceeding or counterclaim brought by either of the parties to this Lease
against the other on any matters 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 Premise, or any other claims (except claims for personal
injury or property damage).
34. HOLD HARMLESS
Each party shall indemnify and hold the other party harmless from and
against any and all claims, losses, expenses, costs, judgments, and/or demands
arising from the conduct of the other party on the Premises or and/or on account
of any operation or action by the other party and/or from and against all claims
arising from any breach or default on the part of the other party or any act of
negligence of the other party, its agents, contractors, servants, employees,
licensees, or invitees, or any accident, injury, or death of any person or
damage to any property in or about the Premises.
35. LANDLORD LIABILITY
In no event shall Landlord be liable to Tenant either for (i) any loss or
damage that may be occasioned by or through the acts or omissions of other
tenants of the Property or of any other persons whomsoever, unless the same
shall have directly resulted from the gross negligence or willful misconduct of
the Landlord, its employees, agents or contractors, or (ii) any consequential
damages regardless of causation. With respect to tort claims against Landlord,
Landlord shall not be liable to Tenant or to any other person for any act or
omission of Landlord or of its agents or employees, negligent or otherwise,
except for actual damages or costs incurred as a direct result of and caused
directly by the willful misconduct or gross negligence of Landlord (or of
Landlord's agents or employees) in circumstances in which Landlord is deemed to
be liable at law for such acts or omissions. Nothing contained in the
immediately preceding sentence shall ever be construed as creating liability in
excess of that existing at law or, in any event, increasing the liability of
Landlord, under any theory or cause of action, however denominated, from that
existing at law. Further, the liability of Landlord to Tenant for (a) any
default by Landlord under the terms of this Lease, (b) for any tort liability of
Landlord to Tenant, or (c) in any other circumstance in which Landlord is
judicially determined to have some liability to Tenant, for whatever reason,
shall, in each such instance, be limited to the interest of Landlord in the
Property and Tenant agrees to look solely to Landlord's interest in the Property
for the recovery of any judgment from the Landlord, it being intended that
Landlord shall never be personally liable for any judgment or deficiency.
Further, Landlord shall not be liable to Tenant for any loss or damage to
any Property Or person occasioned by theft, fire, act of God, windstorm, flood
or other natural disasters, public enemy, injunction, riot, strike,
insurrection, war, court order, requisition, or order of governmental body or
authority or by any other causes, except if specifically provided for in this
Lease. Nor shall Landlord be liable for any damage or inconvenience which may
arise through (i) the leasing of other space within the Property to whomsoever
Landlord chooses for whatever use is allowed by Landlord, so long as the use is
legal, or (ii) repair or alteration of any part of the Property or Premises or
to the construction of leasehold improvements for other tenants in the Property.
In the event of any alleged default in the obligation of Landlord under
this Lease, Tenant will deliver to Landlord notice of such default and Landlord
will have thirty (30) days following receipt of such notice to cute such alleged
default or, in the event the alleged default cannot reasonable be cured within a
thirty-day period, to commence action and proceed diligently to cure such
alleged default.
36. GOVERNMENTAL ACQUISITION OF PROPERTY
In the event the Premises, or any part thereof, be taken under power of
eminent domain by any public or quasi-public authority or sold in lieu of
condemnation, the rights and duties of the parties hereto with respect to this
Lease and to the aggregate award for such taking shall be as follows:
(a) If the entire Premises, or any part thereof, be taken, this Lease shall
terminate and expire as of the date of such taking, and Tenant thereupon shall
be released from any liability thereafter accruing hereunder, and the award
shall be received by Landlord.
(b) If only part of the Premises be taken and a part remaining be of such
shape or size as to prevent its being reasonably used by Tenant for the purpose
to which the Premises were put at the time of such taking, this Lease shall
terminate with the same effect as the entire taking, and the award shall be
received by Landlord only.
(c) If only a part of the Premises be taken and a part remaining be or such
size and shape as to permit its being reasonably used by Tenant for the purpose
to which the Premises were put at the time of such taking, this Lease shall
continue in full force and effect as to the said remaining portion, but the
rental shall be pro rata reduced and the award shall be received by the Landlord
only.
(d) The taking of all or any portion of the Premises noted herein shall not
be considered as a breach of this Lease by Landlord, nor give rise to any claims
by Tenant for damages or compensation from Landlord. In any event, Tenant shall
in no manner be construed to have any claim to any portion of any award made to
Landlord as a result of any partial or entire taking or sale under threat of
condemnation, the Tenant's sole right being limited to a separate claim against
the governmental entity for the value of any alleged improvements taken or sold
as a result of said condemnation.
37. TENANT SUBORDINATION TO LENDERS
Tenant agrees that its Lease rights will be subordinate to those of any
lending institutions making loan upon the Property of which the Premises are a
part. Tenant further agrees to sign all reasonable documents reflecting this
subordination when and if requested by the Landlord and/or Landlord's lender. In
that regard, Tenant further agrees to execute such documents having the effect
of amending the within Lease Agreement as shall be reasonably required by any
lender or lenders of Landlord.
38. TRANSFERS BY LANDLORD
Landlord shall have the right to transfer and assign, in whole or in part,
all its; rights and obligations hereunder and in the Property referred to
herein, and in such event and upon such transfer Landlord shall be released from
any further obligations hereunder, and Tenant agrees to look solely to such
successor in interest of Landlord for the performance of such obligations.
39. TENANT CERTIFICATION OF LEASE EFFECTIVENESS
Tenant shall, at any time on five (5) days prior written notice by
Landlord, execute, acknowledge, and deliver to Landlord a written statement
certifying that this Lease continues unmodified and in full force and effect (or
if there have been modifications, that this Lease continues in full force and
effect as modified and stating the modifications) and the dates to which the
rent and the additional rent have been paid and stating whether Landlord is in
default in performing any covenant of this Lease, and, should Landlord be
alleged to be in default, specifying each and every such default, it being
intended that such statement delivered pursuant to this paragraph may be relied
on by Landlord or any prospective purchaser or mortgagee of the fee or any
assignee of any mortgages of the fee of the Premises.
Tenant's failure to execute and deliver to Landlord the above described
certification within the time specified shall be deemed a breach of this Lease
Agreement.
40. CONTROLLING LAW
This Lease, and all terms hereunder, shall be construed consistent with the
laws of the State of Colorado. Any dispute resulting in litigation hereunder
shall be resolved in court proceedings instituted in the State of Colorado and
County of Boulder and in no other jurisdiction.
41. BINDING UPON SUCCESSORS
The covenants and agreements herein contained shall bind and inure to the
benefit of Landlord and Tenant and their respective successors. This Lease may
be signed by parties in duplicate, each of which shall be a complete and
effective original Lease.
42. PARTIAL INVALIDITY
If any term or condition of this Lease or application thereof to any person
or circumstances shall, to any extent, be invalid or unenforceable the remainder
of the Lease or the application of such term, covenant, or condition to persons
and circumstances other than those to which it has been held invalid or
unenforceable, shall not be affected thereby, and each term, covenant and
condition of this Lease shall be valid and shall be enforced to the fullest
extent permitted by law.
43. MODIFICATION OR EXTENSIONS
No modification or extension of this Lease shall be binding unless in
writing, signed by the parties hereto and endorsed hereon or attached hereto.
44. MEMORANDUM OF LEASE - RECORDING
Either party to this Lease may record this Lease or a Memorandum of Lease
in the records of the office of the Clerk and Recorder of the County of Boulder,
State of Colorado.
45. PEACEFUL ENJOYMENT
Landlord covenants it has good right to lease the Premises in the manner
described herein and that Tenant shall peaceably and quietly have, hold, occupy,
and enjoy the Premises during the terms of the Lease, provided that Tenant pays
the Rent to be paid by Tenant and performs all of Tenant's covenants and
agreement, herein contained.
46. CERTAIN RIGHTS RESERVED TO THE LANDLORD
The Landlord reserves the following rights:
(a) To name the Building and to change the name and street address of the
Building at any time, without responsibility to Tenant for any advertising,
printed materials or any other items of expense incurred by Tenant in regard to
a prior Building name or street address.
(b) To designate all sources furnishing vending machines, mobile vending or
catering services, and like services used on the Premises or in the Building.
(c) To constantly have pass keys to the Premises.
(d) To establish such rules and regulations as deemed appropriate by
Landlord to maintain quality of interior air inside the Building, including if
necessary, the banning of smoking inside the Building.
47. MISCELLANEOUS
All marginal notations and paragraph headings are for the purpose of
reference and shall not effect the meaning and intent of the terms hereof.
Throughout this Lease, wherever the words "Landlord" and "Tenant" are used, they
shall include the singular, plural, persons both male and female, companies,
partnerships, and corporations, and in reading said Lease, the necessary
grammatical changes required to make the provisions hereof mean and apply as
aforesaid shall be made in the same manner as through originally included in
said Lease.
This Lease may be executed in any number of counterparts, all of which are
deemed originals and all of which shall constitute one and the same agreement;
provided, however, it shall only be necessary to produce one copy of such lease
as proof.
The submission of this Lease for examination does not constitute a
reservation of or option for the Premises and this Lease becomes effective as a
Lease only upon execution and delivery thereof by Landlord and Tenant.
48. PROCEDURE FOR NOTICES
All notices, demands, and requests which may or are required to be given by
either party to the other shall be in writing and properly given if delivered to
Tenant or any employee of Tenant or sent to Tenant by United States registered
mail, return receipt requested, properly stamped, and addressed:
MARYLAND NATIONAL MORTGAGE CORP.,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ L Basteck
Vice President, Administration
with a copy to:
FIRST TENNESSEE NATIONAL CORP.
▇.▇. ▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Corporate Real Estate Division
or at any such other place as Tenant may from time to time designate in a
written notice to Landlord; and such as are to be given to Landlord shall be
deemed to have been properly given if personally served on Landlord or if sent
to Landlord, United States registered mail, return receipt requested, properly
stamped and addressed:
Eastpark Associates
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
or at such other place as Landlord may from time to time designate in written
notice to Tenant. Any notice given by mailing shall be effective as of the date
of mailing as shown by the receipt given therefore.
49. ASSIGNMENT OR SUBLETTING
Tenant shall not assign this Lease nor any interest herein, either
voluntarily or involuntarily by operation of law, or sublease the Premises or
any right or privilege connected therewith, or allow any other person except
agents and employees of Tenant to occupy the Premises or any part thereof
without first obtaining the written consent of Landlord, which consent may be
withheld by Landlord in the exercise of Landlord's reasonable discretion. For
the purposes of this Paragraph, a merger, consolidation, sale of substantially
all of the stock of Tenant is deemed to be an assignment requiring the consent
of Landlord. However, consent shall not be withheld if the assignee is of the
same, or better, financial condition as Tenant or if Tenant remains liable under
the Lease. Any unauthorized assignment, sublease, or license to occupy by the
Tenant shall be void and shall, at the option of Landlord, be deemed a default
hereunder. Any consent to assignment or subletting given by Landlord shall not
constitute a waiver of the necessity for such consent to any subsequent
assignment or subletting. Notwithstanding any such assignment or sublease
hereof, Tenant shall be fully liable under this Lease and shall not be released
from performing its terms, covenants, and conditions.
50. GUARANTEE AND FINANCIAL STATEMENTS
A current financial statement of Tenant and any parties so guaranteeing
this Lease shall be provided to Landlord prior to execution hereof and annually
thereafter, if so requested.
IN WITNESS WHEREOF, the parties have executed this Lease as of the date
hereof.
TENANT: LANDLORD:
MARYLAND NATIONAL MORTGAGE CORP., EASTPARK, a General Partnership
a Maryland Corporation
By:/S/Maryland National Mortgage Corporation By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
General Partner