Exhibit 10.20
LEASE AGREEMENT
(ALL NET)
FOR PREMISES LOCATED
AT
6610 Gunpark Drive, Suite
102
Boulder, Colorado
80301
BETWEEN
Monotype Imaging,
Inc.
AS TENANT
AND
6610, LLC
A Colorado Limited Liability
Company
AS LANDLORD
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
|
1.
|
|
PREMISES
LEASED; DESCRIPTION
|
|
1
|
|
|
|
|
|
2.
|
|
SQUARE
FOOTAGE/PRO RATA SHARE
|
|
1
|
|
|
|
|
|
3.
|
|
PRESENT
CONDITION OF PROPERTY
|
|
1
|
|
|
|
|
|
4.
|
|
TERM
|
|
1
|
|
|
|
4.1 Initial
Term
|
|
1
|
|
|
|
4.2 Tenant
Improvement
|
|
1
|
|
|
|
4.3 Option
to Extend
|
|
1
|
|
|
|
|
|
5.
|
|
RENT
|
|
2
|
|
|
|
5.1 Base
Rental
|
|
2
|
|
|
|
5.2 Rent
Commencement Date
|
|
2
|
|
|
|
5.3
Escalation of Base Rental
|
|
2
|
|
|
|
5.4
Operating Costs
|
|
2
|
|
|
|
(a)
Inclusions
|
|
2
|
|
|
|
(b)
Exclusions
|
|
3
|
|
|
|
5.5 Payment
of Operating Costs
|
|
3
|
|
|
|
5.6 Dispute
Concerning Operating Costs
|
|
4
|
|
|
|
5.7 Payment
of Rent and Additional Charges - General
|
|
4
|
|
|
|
5.8 Late
Charges
|
|
4
|
|
|
|
5.9 Security
Deposit
|
|
4
|
|
|
|
5.10 Proration of Rent
for Partial Months
|
|
4
|
|
|
|
|
|
6.
|
|
TAXES - REAL
PROPERTY - PAID BY TENANT – PROTEST (Intentionally
Deleted)
|
|
5
|
|
|
|
|
|
7.
|
|
TAXES -
TENANT'S PERSONAL PROPERTY - PAID- BY TENANT
|
|
5
|
|
|
|
|
|
8.
|
|
UTILITIES -
RESPONSIBILITY
|
|
5
|
|
|
|
|
|
9.
|
|
HOLDING
OVER
|
|
5
|
|
|
|
|
|
10.
|
|
MODIFICATION OR
EXTENSIONS
|
|
5
|
|
|
|
|
|
11.
|
|
ALTERATION -
CHANGES AND ADDITIONS - RESPONSIBILITY – NO HOLES IN ROOF -
NO NEW EQUIPMENT ON ROOF
|
|
5
|
|
|
|
|
|
12.
|
|
MECHANIC'S
LIENS
|
|
6
|
|
|
|
|
|
13.
|
|
UNIFORM
SIGNS
|
|
6
|
|
|
|
|
|
14.
|
|
MAINTENANCE AND
REPAIRS OF THE BUILDING: LANDLORD NOT LIABLE FOR DAMAGE TO
CONTENTS
|
|
6
|
|
|
|
|
|
15.
|
|
CONDITION UPON
SURRENDER - RETURN
|
|
7
|
|
|
|
|
|
16.
|
|
USE OF
PREMISES: NO NUISANCE: COMPLIANCE WITH LAWS: RULES AND
REGULATIONS
|
|
7
|
|
|
|
|
|
17.
|
|
LIABILITY FOR
OVERLOAD
|
|
8
|
|
|
|
|
|
|
|
|
|
|
|
18.
|
|
NO USE OF
PREMISES IN VIOLATION OF INSURANCE POLICIES
|
|
8
|
|
|
|
|
|
19.
|
|
INSURANCE
|
|
8
|
|
|
|
19.1 All
Risk Insurance
|
|
8
|
|
|
|
19.2 General
Liability Insurance
|
|
8
|
|
|
|
19.3 Tenant
Improvements
|
|
8
|
|
|
|
19.4 Other
Insurance
|
|
8
|
|
|
|
19.5 Waiver
of Subrogation
|
|
8
|
|
|
|
19.6 Other
Provisions Regarding Tenant's Insurance
|
|
8
|
|
|
|
19.7 Changes
in Standard Policies
|
|
9
|
|
|
|
|
|
20.
|
|
REPLACEMENT OF
BUILDING - CASUALTY DAMAGE
|
|
9
|
|
|
|
|
|
21.
|
|
ENVIRONMENTAL
MATTERS
|
|
9
|
|
|
|
|
|
22.
|
|
ENTRY BY
LANDLORD
|
|
10
|
|
|
|
|
|
23.
|
|
DEFAULT -
REMEDIES OF LANDLORD
|
|
10
|
|
|
|
23.1 Default
Defined
|
|
10
|
|
|
|
23.2
Landlord's Remedies in the
Event of Default
|
|
10
|
|
|
|
23.3 Tenant
to Surrender Peaceably
|
|
11
|
|
|
|
23.4 No
Termination by Re-Entry
|
|
11
|
|
|
|
23.5
Injunction
|
|
11
|
|
|
|
23.6
Remedies Listed are Cumulative
and Non-Exclusive
|
|
11
|
|
|
|
23.7
Interest on Sums Past
Due
|
|
12
|
|
|
|
23.8
Attorneys' Fees
|
|
12
|
|
|
|
23.9 Time to
Cure Certain Non-Monetary Default
|
|
12
|
|
|
|
23.10 Landlord
Default
|
|
16
|
|
|
|
|
|
24.
|
|
LEGAL
PROCEEDINGS AGAINST TENANT BY THIRD PARTIES: TENANT TO PAY
LANDLORD'S FEES
|
|
12
|
|
|
|
|
|
25.
|
|
INDEMNIFICATION
BY TENANT AND BY LANDLORD
|
|
12
|
|
|
|
|
|
26.
|
|
ASSIGNMENT OR
SUBLETTING
|
|
13
|
|
|
|
|
|
27.
|
|
LANDLORD'S
WARRANTY OF TITLE: QUIET ENJOYMENT
|
|
13
|
|
|
|
|
|
28.
|
|
ADDITIONAL
DEVELOPMENT OF PROPERTY - RIGHTS OF LANDLORD
|
|
13
|
|
|
|
|
|
29.
|
|
GOVERNMENTAL
ACQUISITION OF THE PREMISES
|
|
13
|
|
|
|
|
|
30.
|
|
SUBORDINATION
OF THE LEASEHOLD TO MORTGAGES
|
|
14
|
|
|
|
|
|
31.
|
|
MEMORANDUM OF
LEASE - RECORDING
|
|
14
|
|
|
|
|
|
32.
|
|
NO WAIVER OF
BREACH ACCEPTANCE OF PARTIAL PAYMENT OF RENT
|
|
14
|
|
|
|
|
|
33.
|
|
CONTROLLING
LAW
|
|
15
|
|
|
|
|
|
34.
|
|
INUREMENTS
|
|
15
|
|
|
|
|
|
35.
|
|
TIME
|
|
15
|
|
|
|
|
|
|
|
|
|
|
|
36.
|
|
NOTICE
PROCEDURE
|
|
15
|
|
|
|
|
|
37.
|
|
PARAGRAPH
HEADINGS
|
|
15
|
|
|
|
|
|
38.
|
|
LIMITATION UPON
LANDLORD’S LIABILITY
|
|
15
|
|
|
|
|
|
39.
|
|
GUARANTEES.
|
|
15
|
|
|
|
|
|
40.
|
|
DELAYS
|
|
16
|
|
|
|
|
|
41.
|
|
BROKERS
(Intentionally Deleted)
|
|
16
|
|
|
|
|
|
42.
|
|
AMENDMENTS
|
|
16
|
|
|
|
|
|
43.
|
|
ENTIRE
AGREEMENT
|
|
16
|
|
|
|
|
|
44.
|
|
SEVERABILITY
|
|
16
|
|
|
|
|
EXHIBIT A,
Premises
|
|
17, 18
|
|
|
|
|
EXHIBIT B,
Tenant Improvements
|
|
19
|
|
|
|
|
EXHIBIT C,
Space Acceptance Agreement
|
|
20
|
|
|
|
|
EXHIBIT D,
Guaranty
|
|
21
|
LEASE
THIS LEASE, made and entered into
this 6 th day of April, 2006, by and between
6610, LLC, hereinafter referred to as “Landlord” and
Monotype Imaging, Inc. hereinafter referred to as
“Tenant.”
WITNESSETH:
In consideration of the covenants,
terms, conditions, agreements, and payments as hereinafter set
forth, the parties hereto covenant and agree as follows:
1. PREMISES LEASED;
DESCRIPTION . Landlord hereby leases unto Tenant the following
described premises Suite 102 containing approximately 1913 rentable
square feet in a building commonly known as 6610 Gunpark Drive ,
City of Boulder , County of Boulder , State of Colorado (the
“Premises”) a more detailed description of the
Premises, Building, and real Property being set forth in Exhibit A
attached hereto; the leasing of which is made according to the
terms of this Agreement; together with all appurtenances thereto,
and all fixtures attached thereto, in present condition, and
together with nonexclusive reasonable access on such roadways,
sidewalks, and other common areas of which the Premises are a
part.
2. SQUARE FOOTAGE/PRO RATA
SHARE . The total Rentable Square Footage of the Premises is
approximately 1913 square feet of floor space. The Building
Rentable Square Footage is 6595 square feet. The Tenant’s pro
rata share is its Rentable Square Footage divided by the Building
Square Footage (“Tenant’s Pro Rata Share”). The
Tenant’s Pro Rata Share shall be 29.00 %.
3. PRESENT CONDITION OF
PROPERTY . The Tenant has examined, and accepts the building,
improvements, and any fixtures on the Premises as of the
Commencement Date, in present condition, subject to the
construction of Tenant Improvements as detailed on the plans and
specifications attached as Exhibit B, attached hereto and made a
part hereof by reference. Notwithstanding any other provisions of
this Lease, Landlord agrees to be responsible, at Landlord’s
sole cost and expense (and not as part of Operating Costs), for all
repairs, replacements and other matters pertaining to the Building
and Tenant Improvements, covered by warranties of contractors and
manufacturers.
4.1 Initial Term . The term
of this lease shall commence at 12:01 a.m. on the 6
th
day of April, 2006 (the
“Commencement Date”), and unless terminated as herein
provided for, shall end at 11:59 p.m. on the 31
st
day of May , 2009. The
Commencement Date as set forth in this Paragraph 4.1, as well as
the term of this Lease, shall be subject to those adjustments of
the Commencement Date, if any, set forth in Paragraph 4.2 which
relate to the performance of construction on the
Premises.
4.2 Tenant Improvement
Construction . The Commencement Date of this lease shall not be
delayed until the substantial completion of the tenant improvements
described on Exhibit B attached hereto, and delivery of possession
to Tenant shall be as of the Commencement Date. If for any reason
Landlord does not substantially complete such construction prior to
May 1, 2006 , such failure will not affect the validity of
this lease, but in such case Tenant shall not be obligated to pay
rent or NNN costs until such construction is substantially
completed.
4.3 Option to Extend .
Provided that Tenant is not then in default under this lease beyond
any applicable notice and opportunity to cure, Tenant shall be
given the option to renew this lease for one additional term(s) of
36 months. Such option shall be exercisable only by delivery of
Tenant’s signed written notice of extension to Landlord not
less than 90 days prior to the expiration of the then-existing
lease term. In the event of such exercise, this lease shall be
deemed to be extended for the additional period pursuant to all the
terms and conditions set forth herein, except Base Rental as set
forth in Paragraph 5.1 shall be adjusted as set forth in Article 5.
In the event of exercise of said Option, any funds held by Landlord
pursuant hereto shall continue to be so held subject to the terms
and conditions relating to same.
5. RENT . Tenant shall pay to
Landlord, at the address of Landlord as herein set forth, the
following as rental for the Premises:
5.1 Base Rental . In lieu of
the fact that substantial completion of Tenant Finish will be
underway during the first month of the lease, Landlord agrees to
waive any rent due through June 30, 2006. The base rental for
the first year hereof shall be Twenty Two Thousand, Three Hundred
Fifty Eight and 16/100 dollars ($22,358.16) payable in monthly
installments of Two Thousand Thirty Two and 56/100 dollars
($2,032.56) in advance on the first day of each month during the
first year, commencing on July 1, 2006, and thereafter as
adjusted annually as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Monthly
|
|
Annually
|
|
Per/SF
|
|
5.1.1
|
|
04/06/06-06/30/06
|
|
$
|
0.00
|
|
$
|
0.00
|
|
$
|
0.00
|
|
5.1.2
|
|
07/01/06-05/31/07
|
|
$
|
2,032.56
|
|
$
|
22,358.16
|
|
$
|
12.75
|
|
5.1.3
|
|
06/01/07-05/31/08
|
|
$
|
2,093.14
|
|
$
|
25,117.69
|
|
$
|
13.13
|
|
5.1.4
|
|
06/01/08-05/31/09
|
|
$
|
2,156.91
|
|
$
|
25,882.89
|
|
$
|
13.53
|
5.2 Rent Commencement Date .
Payment of Base Rent shall commence on July 1, 2006, two
months after the Commencement Date of the lease and possession by
Tenant.
5.3 Option Years Base Rental
. No later than thirty (30) days following Tenant’s
notice to renew this Lease, Landlord shall notify Tenant of
Landlord’s estimate of the new rate to be charged Tenant
which shall be the then current Fair Market rent for comparable
office space in Boulder County provided any increase in Base Rental
shall not be more than three percent (3%) over the Base Rental
for the previous year.
5.4 Operating Costs (NNN) .
In addition to Base Rent, Tenant shall pay to Landlord, at the
times and in the manner hereinafter provided, as Additional Rent,
Tenant’s Pro Rata Share of reasonable Building and Property
Operating Costs.
(a) Inclusions : The
Operating Costs for which the Tenant is liable to the Landlord for
Tenants Pro Rata Share shall include
(i) all reasonable expenses incurred
by Landlord with respect to the maintenance and operation of the
Building and Property upon which the Premises are a part,
including, without limitation, maintenance and repair costs of all
systems and improvements, utilities, sewer, security, janitorial,
trash and snow removal, landscaping, pest control, reasonable and
customary (in the Boulder County, Colorado area) management fees
(which fees shall not exceed 5.0% of the actual rents), wages and
fringe benefits payable to employees of Landlord whose duties are
connected with the operation and maintenance of the Building, all
services, supplies, repairs, or other expenses for maintaining, in
addition to the Building and Property of which the leased Premises
are a part, the common and parking areas, and the Premises to the
extent such items and services are provided in general to office
tenants of the Building, provided, however, that any capital
expenditure shall be included in annual Operating Costs only to the
extent of an increment of the total cost thereof representing the
amortization of such total cost over the reasonably expected
lifetime of the improvement. Construction defects and new building
warranty work shall not be included in Operating Costs.
(ii) all real property taxes and
installments of special assessments, and all other taxes, rates,
charges, levies or assessments levied upon or assessed and
assessments levied against the Building and Property, and if
Landlord employs counsel in an effort to reduce or otherwise obtain
relief from taxes or assessments which, if successful would have
reduced the total Operating Costs, the fees of such
counsel;
(iii) such insurance costs as are
assessable to the Landlord pursuant to the terms of this
Lease.
(b) Exclusions : The term
Operating Costs shall not include any repair, restoration or other
work occasioned by fire, wind, storm or other casualty, income and
franchise taxes of Landlord, expenses incurred in leasing to or
procuring of tenants, advertising expenses, expenses for the
creation or renovation of space for new tenant, interest or
principal payments on any mortgage or other indebtedness of
Landlord, compensation paid to an employee of Landlord above the
grade of Property Manager nor any depreciation allowance on any
improvements on the Property, loan principal payments, leasing
commissions, or advertising costs. Operating Costs shall also not
include: Landlord’s costs of the initial construction of the
Building, and the costs to correct defects in the original
construction of the Building; costs of work or services for
particular tenants that are separately reimbursable to Landlord by
such tenants; costs for which Landlord is reimbursed under
insurance policies or otherwise by third parties; costs paid
directly by individual tenants to suppliers, including tenant
electricity and telephone costs; legal and accounting expenses
related to lease negotiations and enforcement of leases; damages,
penalties, fines, or interest that Landlord is obligated to pay by
reason of any tort liability of Landlord, Landlord’s
violation of applicable law or failure by Landlord or any tenant
(other than Tenant) to comply with its lease obligations or to
timely pay any component of Expenses; the costs of environmental
testing and of complying with applicable federal, state and local
laws dealing with the handling, storage and disposal of hazardous
materials or substances; costs required to remedy any
noncompliance, as of the Commencement Date, of the Building with
applicable law (including, without limitation, the Americans with
Disabilities Act of 1990); salaries of executives or principals of
Landlord; charitable and political contributions; financing and
refinancing costs in respect of any mortgage placed upon the
Property, including points and commissions in connection therewith;
reserves; any bad debt loss, rent loss or reserves for bad debts or
rent loss; any expenses which are not paid or incurred in respect
of the Building or Land but rather in respect of other real
property owned by Landlord or affiliates of Landlord, provided that
with respect to any expenses attributable in part to the Building
or Land and in part to other real property owned by Landlord
(including, without limitation, salaries, fringe benefits and other
compensation of Landlord's personnel who provide services to both
the Building and other properties), Expenses shall include only
such portion thereof as are apportioned by Landlord to the Building
or Land on a fair and equitable basis; costs incurred with respect
to a sale or transfer of all or any portion of the Building or any
interest therein or in any person of whatever tier owning an
interest therein; costs incurred in connection with the acquisition
or sale of air rights, transferable development rights, easements
or other real property interests; amounts paid to subsidiaries or
other affiliates of Landlord for services to the Property to the
extent only that the costs of such services exceed the costs if
such services had been rendered by an unaffiliated party; any costs
incurred in connection with the making of repairs which are the
obligation of another tenant of the Building; the cost of tools and
equipment initially purchased in connection with the opening and
initial equipping of the Building; depreciation, amortization
(except as otherwise expressly provided herein) and other non cash
charges.
5.5 Payment of Operating Costs
(NNN) . Tenant shall pay its Pro Rata Share of Operating Costs
as Additional Rent in advance on the first day of each month during
the term hereof. Operating Costs, currently estimated to be $6.00
per square foot, shall be paid monthly in the amount of Nine
Hundred Fifty Six and 50/100 US Dollars ($ 956.50), as additional
rent.
In lieu of the fact that substantial
completion of Tenant Finish will be underway during the first month
of the lease, Landlord agrees to waive any payment of Operating
Costs due during the first month. Monthly payment of Operating
Costs (NNN) shall commence on May 1, 2006.
Landlord shall deliver to Tenant,
within 120 days following the end of each calendar year, a
statement of the Operating Expenses for the calendar year just
ended and a statement of the Additional Rent payable by Tenant
during the ensuing year (the “Adjustment Notice”).
Until receipt of the Adjustment Notice, Tenant shall continue to
pay its monthly share of Operating Expenses in the same amount as
was paid during the preceding calendar year. To the extent that the
Adjustment Notice reflects the amount paid by Tenant as its share
of Operating Expenses for the preceding calendar year to be less
than Tenant’s Pro Rata Share of the actual operating expenses
for that year, and to the extent the Adjustment Notice reflects the
amount due from Tenant as its share of Operating Expenses for the
new calendar year greater than the amount actually paid to the date
of receipt of the Adjustment Notice for the new calendar year,
Tenant shall pay such amounts to Landlord within thirty
(30) days of receipt of the Adjustment Notice. Upon receipt of
the Adjustment Notice, Tenant shall thereafter pay the amount of
its monthly share of adjusted Operating Expenses as set forth in
the Adjustment Notice. In the event the actual operating expenses
during any calendar year are less than the estimated operating
expenses paid by Tenant, Tenant shall be entitled to a refund,
credit or other form of reimbursement from Landlord, payable within
thirty (30) days following the date of the Adjustment Notice.
All Base Rent and Additional Rent shall be paid monthly, in
advance, on the first day of each month during the term
hereof.
5.6 Dispute Concerning Operating
Costs . In the event of any dispute as to the figures utilized
in the Adjustment Notice or the calculation of Tenant’s Pro
Rata Share of Operating Costs, Tenant shall have the right to
inspect Landlord’s records relative to the costs at the
office in which Landlord maintains its records during normal
business hours at any time within ninety (90) days following
the furnishing by Landlord to Tenant of the Adjustment Notice.
Unless Tenant shall take written exception of any item contained
within the Adjustment Notice within such thirty (30) day
period, the Adjustment Notice shall be considered as final and
accepted by Tenant. If Tenant makes such timely written exception,
a certification as to the proper amount of Tenant’s Pro Rata
Share of Operating Costs shall be made by a Certified Public
Accountant designated by Landlord and Tenant which certification
shall be final and conclusive. Tenant agrees to pay the cost of
that certification unless it is determined that Landlord’s
original determination of Tenant’s Pro Rata Share of
Operating Costs was in error more than five percent (5%) over
Tenant’s actual obligation, in which event Landlord shall pay
the cost of that certification.
5.7 Payment of Rent and
Additional Charges—General . All amounts payable by
Tenant to Landlord under this Lease, shall be deemed to be Rent and
shall be payable and recoverable as Rent in the manner herein
provided, and Landlord shall have all rights against Tenant for
default in any such payment as in the case of arrears of Rent. Rent
shall be paid to Landlord, without deduction or set-off, in legal
tender at the address of Landlord as set forth in this Lease, or to
such other person or at such other address as Landlord may from
time to time designate in writing. Rent shall not be deemed paid
until actually received by Landlord. Tenant's obligation to pay
Rent shall survive the expiration or earlier termination of this
Lease.
5.8 Late Charges . In the
event Tenant shall be more than ten (10) days late in the
payment of any Base Rent or Additional Rent payments due hereunder,
then Landlord may, at his option, require in addition to the rent
due herein a late fee equal to the amount of five percent
(5%) of the said rent for each such occurrence. With regard to
all amounts billed by Landlord to Tenant hereunder, payment in full
of the same is due from Tenant to Landlord not later than fifteen
(15) days of the date of billing, unless Tenant is contesting
the same in good faith, or in the event that Tenant shall be more
than fifteen (15) days late in the payment of any other sums
due hereunder, then Landlord may, at its sole option, require
payment of an amount equal to an additional five percent
(5%) of any such unpaid amounts for each such
occurrence.
5.9 Security Deposit .
Landlord acknowledges receipt of the sum of Two Thousand Thirty Two
and 56/100 Dollars ($2,032.56) paid by Tenant upon the execution
hereof, to be retained by Landlord as security for the performance
of all of the terms and conditions of this lease Agreement to be
performed by Tenant, including payment of all rental due under the
terms hereof. Landlord shall not owe Tenant any interest on the
deposit. At Landlord's election, deductions may be made by Landlord
from the amount so retained for the reasonable cost of repairs to
the Premises which should have been performed by Tenant, for any
rental payment or other sum delinquent under the terms hereof, and
for any sum used by Landlord in any manner to cure any default in
the performance of Tenant under the terms of this lease, in all
cases after the expiration of any applicable notice and cure
period. In the event deductions are so made during the rental term,
upon notice by Landlord, Tenant shall redeposit such amounts so
expended so as to maintain the security deposit in the amount as
herein provided for, within 10 days after receipt of such written
demand from Landlord. Nothing herein contained shall limit the
liability of Tenant as to any repairs or maintenance of the
Premises; and nothing herein shall limit the obligation of Tenant
promptly to pay all sums otherwise due under this lease and to
comply with all the terms and conditions hereof. The security
deposit, less any sums withheld by Landlord pursuant to the terms
hereof, shall be repaid to Tenant within sixty days after the date
of termination of the lease.
5.10 Proration of Rent for
Partial Months . If the lease term begins on other than the
first day of a month, base rent and additional rent from such date
until the first day of the next succeeding calendar month shall be
prorated on the basis of the actual number of days in such calendar
month and shall be payable in advance. If the lease term terminates
on other than the last day of the calendar month, rent from the
first day of such calendar month until such termination date shall
be prorated on the basis of the actual number of days in such
month, and shall be payable in advance.
6. TAXES—REAL
PROPERTY—PAID BY TENANT—PROTEST . (Intentionally
Deleted).
7. TAXES—TENANT'S PERSONAL
PROPERTY—PAID- BY TENANT . Tenant shall be responsible
for and timely pay any and all personal property taxes assessed
against any furniture, fixtures, equipment and items of a similar
nature installed and/or located in or about the Premises by
Tenant.
8.
UTILITIES—RESPONSIBILITY . Tenant shall promptly pay
all charges for heat, gas, electric service, telephone and any
other utility service used or consumed on the Premises and which is
separately metered to the Premises. As to those utilities which are
not separately metered or assessed to the Premises, and those which
are used in common with other tenants of the Building, Tenant shall
pay to Landlord as Operating Costs under the terms hereof Tenant's
Pro Rata Share of said costs, based upon the relative usage of such
unmetered utilities by more that one tenant. As to any utility
services which are separately metered or assessed to the Premises,
the accounts therefore shall be placed in the name of Tenant and
shall be paid directly by Tenant. In no event shall Landlord be
liable for any interruption or failure in the supply of any utility
to the Premises or the Building, whether the obtaining of and/or
payment for such utility is the responsibility of Tenant or
Landlord, unless such failure or interruption is a result of
Landlord’s negligence.
NOTE* (Meters #101 and #102, utility
services separately metered to Suite 102, shall be placed in the
name of Tenant effective May 1, 2006. Meter #103, which
reflects utility services shared by Suites 102 and 103, shall be
paid by Landlord and charged back quarterly to the Tenants of
Suites 102 and 103 on a pro-rata basis. Such utility billing not to
exceed $0.12 per square foot per month, unless there is a
documented increase in utility costs.)
9. HOLDING OVER . If, after
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
holdover tenancy shall be equivalent to one and one half times the
monthly rental paid for the last month of tenancy under this
lease.
10. MODIFICATION OR
EXTENSIONS . No holding over by Tenant shall operate to renew
or extend this lease without the written consent of Landlord. No
modification of this lease shall be binding unless endorsed hereon
or otherwise written and signed by the respective
parties.
11. ALTERATION—CHANGES AND
ADDITIONS—RESPONSIBILITY—NO HOLES IN ROOF—NO NEW
EQUIPMENT ON ROOF . Subject to Landlord’s determination
that any alterations requested by Tenant do not negatively affect
the integrity of the Premises, in Landlord’s reasonable
discretion, Tenant may, during the term of this lease, at
Tenant’s expense, erect inside partitions, add to existing
electric power service, add telephone outlets or other
communication services, add light fixtures, install additional
heating and/or air conditioning or make such other changes or
alterations as Tenant may desire, provided that prior to
commencement of any such work, Tenant shall submit to Landlord a
set of fully detailed working drawings and specifications for the
proposed alteration, prepared by a licensed architect or engineer.
Landlord may refuse to consent to the alterations because of the
inadequacy of the drawings and specifications. Tenant may not
commence the alterations until Landlord’s written consent has
been given which consent shall not be unreasonably withheld. Any
additions or alterations requested by Tenant of the
telecommunication or data transmission equipment, facilities, lines
or outlets on the Premises shall be performed only with
Landlord’s consent, which consent shall not be unreasonably
withheld. Such additions and alterations shall be at Tenant’s
expense. If the drawings and specifications are adequate, to
Landlord’s sole satisfaction, then Landlord will not
unreasonably withhold its consent to the alterations, except that
Landlord may withhold its consent to new or altered openings
(holes) in the roof, or placement of additional equipment on the
roof, as follows. Landlord may withhold its consent to new openings
in the roof or placement of additional equipment on the roof unless
Landlord, in its sole discretion, is satisfied that the risk of
increased leakage or risk of more frequent repairs or maintenance
of the roof is acceptable to Landlord. Any new or altered opening
in the roof, or placement of additional equipment thereon, shall be
considered an alteration which requires the prior written consent
of Landlord. If within thirty (15) days after such plans and
specifications are submitted by Tenant to Landlord for such
approval, Landlord shall have not given Tenant notice of
disapproval, stating the reason for such disapproval, such plans
and specifications shall be considered approved by Landlord. As a
condition of approval for such alterations, Landlord shall have the
right to require Tenant to furnish adequate bond or other security
acceptable to landlord for performance of and payment for the work
to be performed. At the end of this lease, all such fixtures,
equipment, additions and/or alterations (except trade fixtures
installed by Tenant) shall be and remain the property of
Landlord, provided, however, Landlord shall have
the option to require Tenant to remove any or all such fixtures,
equipment, additions, and/or alterations except initial tenant
improvements pursuant to Exhibit B and restore the Premises to the
condition existing immediately prior to such change and/or
installation, normal wear and tear excepted, all at Tenant’s
cost and expense. All work done by Tenant shall conform to
appropriate city, county and state building codes and health
standards and OSHA standards and Tenant shall be responsible for
obtaining and paying for building permits.
If any such work done by Tenant
causes damage to the structural portion, exterior finish or roof of
the Premises, then the costs of repair of such damage, and of all
further maintenance and repairs to such structural portion,
exterior finish or roof during the term of the lease shall
thereafter be the responsibility of Tenant.
Neither Landlord’s right of
entry, nor any actual inspection by Landlord, nor Landlord’s
actual knowledge of any alteration accomplished or in progress
shall constitute a waiver of Landlord’s rights concerning
alterations by Tenant.
12. MECHANIC'S LIENS . Tenant
shall pay all costs for construction done by it or caused to be
done by it on the Premises as permitted by this lease. Tenant shall
keep the building, other improvements and land of which the
Premises are a part free and clear of all mechanics liens resulting
from construction by or for Tenant. Tenant shall have the right to
contest the correctness or validity of any such lien if,
immediately on demand by Landlord, Tenant deposits with Landlord
and/or any appropriate court or title insurance company a bond or
sum of money sufficient to allow issuance of title insurance
against the lien and/or to comply with the statutory requirements
for discharge of the lien found in § 38-22-130 and § 131,
Colorado Revised Statutes, or any successor statutory provision.
Landlord shall have the right to require Tenant's contractor(s),
subcontractors and materialmen to furnish to both Tenant and
Landlord adequate lien waivers on work or materials paid for, in
connection with all periodic or final payments, by endorsement on
checks, making of joint checks, or otherwise, and Landlord shall
have the right to review invoices prior to payment. Landlord
reserves the right to post notices on the Premises that Landlord is
not responsible for payment of work performed and that Landlord's
interest is not subject to any lien.
13. UNIFORM SIGNS . It is
Landlord's intent to maintain uniformity of signs throughout the
area where signs may be controlled by Landlord. Tenant shall place
no signs on the Premises (except inside Tenant's portion of the
building on the Premises) without prior written consent of
Landlord, which consent shall not be unreasonably withheld. Tenant
shall be entitled to a Pro Rata Share of the exterior signage for
the Building.
14. MAINTENANCE AND REPAIRS OF
THE BUILDING: LANDLORD NOT LIABLE FOR DAMAGE TO CONTENTS .
Landlord shall be responsible for maintenance and repairs of the
structural portions, and the roof of the Building (other than glass
in the Premises) at the sole cost and expense of Landlord, and
shall, as part of Operating Costs, repair and maintain the HVAC,
plumbing and electrical systems of the Building, the parking areas
and landscaping around the Building and provide snow removal for
the parking areas and sidewalks adjoining the Building; provided,
however, that if any such maintenance or repairs are necessitated
by the acts of Tenant or its employees, agents, contractors,
subcontractors, licensees, invitees or guests, Tenant shall
reimburse Landlord for the cost of same, as additional rent, to be
paid within 30 days after delivery of invoice.
Tenant, at Tenant's sole cost and
expense, shall maintain, in good order, condition and repair, the
Premises, including the interior surfaces of the ceilings, interior
walls and floors, all doors, interior glass and windows, door
closure devices, door frames and locks, plumbing fixtures within
the Premises, electrical wiring installed by Tenant, switches,
fixtures and