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Exhibit 10.22
OFFICE LEASE
BETWEEN
FDC OFFICE I, LLC,
A COLORADO LIMITED LIABILITY COMPANY
(AS LANDLORD)
AND
LENDERS RESOURCE INCORPORATED
A COLORADO CORPORATION
(AS TENANT)
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1.
PRINCIPAL
TERMS..........................................................................................1
2.
GENERAL
COVENANTS........................................................................................3
3.
TERM.....................................................................................................3
4.
RENT.....................................................................................................3
5.
COMPLETION OF THE
PREMISES...............................................................................3
6.
OPERATING
EXPENSES.......................................................................................4
7.
SERVICES.................................................................................................8
8.
QUIET
ENJOYMENT..........................................................................................9
9.
CHARACTER OF
OCCUPANCY...................................................................................9
10.
MAINTENANCE, ALTERATIONS AND REENTRY BY
LANDLORD.........................................................9
11.
ALTERATIONS AND REPAIRS BY
TENANT.......................................................................10
12. MECHANICS'
LIENS........................................................................................11
13. SUBLETTING
AND
ASSIGNMENT...............................................................................11
14. DAMAGE TO
PROPERTY......................................................................................13
15. INDEMNITY
TO
LANDLORD...................................................................................13
16. SURRENDER
AND
NOTICE....................................................................................13
17. INSURANCE,
CASUALTY, AND RESTORATION OF
PREMISES........................................................13
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18.
CONDEMNATION............................................................................................14
19. DEFAULT BY
TENANT.......................................................................................15
20. DEFAULT BY
LANDLORD.....................................................................................18
21.
SUBORDINATION AND
ATTORNMENT............................................................................18
22. REMOVAL OF
TENANT'S
PROPERTY............................................................................18
23. HOLDING
OVER: TENANCY
MONTH-TO-MONTH....................................................................19
24. PAYMENTS
AFTER
TERMINATION..............................................................................19
25. STATEMENT
OF
PERFORMANCE................................................................................19
26.
MISCELLANEOUS...........................................................................................19
27.
AUTHORITIES FOR ACTION AND
NOTICE.......................................................................21
28.
PARKING.................................................................................................22
29.
BROKERAGE...............................................................................................22
30.
COUNTERPARTS............................................................................................22
31.
EXHIBITS................................................................................................22
32.
OPTIONS.................................................................................................22
33. PERMIT
CONTINGENCY......................................................................................23
34.
EXPANSION...............................................................................................23
35.
GUARANTY................................................................................................24
36. RIGHT OF
FIRST
REFUSAL..................................................................................24
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LEASE AGREEMENT
THIS LEASE, dated as of ____________, 1997, is by and between
FDC
OFFICE I, LLC, a Colorado limited liability
company ("Landlord"), and LENDERS
RESOURCE INCORPORATED, a Colorado
corporation ("Tenant").
W I T N E S S E T H:
1. PRINCIPAL TERMS. Capitalized terms, first appearing in
quotations in
this Section, elsewhere in the Lease or any
Exhibits, are definitions of such
terms as used in the Lease and Exhibits and
shall have the defined meaning
whenever used.
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1.1
"BUILDING":
FDC Office I located at, _________ Loveland, CO 80538
in the Rocky Mountain Village Business Park.
1.2
"PREMISES":
approximately 15,879 rentable square feet Suite # _____
1.3 "INITIAL
TERM":
20 years
"Commencement Date": The date of Substantial
Completion, as defined in the attached Work Letter.
"Expiration Date": The last day of the month in which
the twentieth anniversary of the day immediately prior
to the Commencement Date occurs.
1.4 "BASE
RENT":
For each of the first 5 years of the Initial Term, the
annual Base Rent shall equal the lesser of (i) the
Total Construction Costs for the Premises, as said term
is defined in the attached Work Agreement times 11%
(i.e., assuming Total Construction Costs of $106.80 x
15,879 sq. ft. = $1,695,877.20 x 11% = $186,547.00 or
(ii) $186,578.00 (i.e., $11.75 x 15,879 sq. ft.). For
each of the 6th through the 10th years of the Initial
Term, the annual Base Rent shall equal 115% of the Base
Rent payable in the 5th year. For each of the 11th
through the 15th years of the Initial Term, the Base
Rent shall equal 115% of the Base Rent payable in the
10th year. For the
16th through the 20th years of the
Initial Lease Term, the Base Rent shall equal 115 % of
the Base Rent payable in the 15th year. The Base Rent
for the first (1st) month of the Initial Term shall be
abated.
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1.5 OPERATING
EXPENSES:
Pro Rata Share: 50%
1.6 "DEPOSIT":
Upon signing of this lease agreement, the first months
rent shall be waived and Lessee shall prepay the second
months rent ($15,545.00)
1.7 "PERMITTED
USE":
General Office
1.8
"GUARANTOR":
Factual Data Corp. and FDC Group, Inc.
1.9 PARKING:
65 spaces
1.10
LANDLORD'S NOTICE ADDRESS:
200 East 7th Street, Suite 314
Loveland, Colorado
80537
With copy to:
Isaacson, Rosenbaum, Woods & Levy, P.C. 633 17th
Street, Suite 2200
Denver, Colorado 80202
1.11
LANDLORD'S TAX I.D.:
84-1412236
1.12
TENANT'S NOTICE ADDRESS:
Lenders Resource Incorporated
Precommencement Address:
c/o Factual Data, Corp.
3665 JFK Parkway, Bldg. 1, 2nd Floor
Fort Collins, CO
80527-0458
Post Commencement Address:
Lenders Resource Incorporated
-----------------------------------------------
Loveland, CO 80538
with copy to:
Ramsey D. Myatt
March & Myatt
110 East Oak Street, Suite 200
Ft. Collins, Colorado
80524
1.13
TENANT'S TAX I.D.:
84-1289881
1.14 LANDLORD'S BROKER:
Kast Real Estate Services
1.15
COOPERATING BROKER:
None
1.16
ATTACHMENTS:
[check if applicable]
Addendum
x
Work Letter
x
Exhibit A - The Premises
x
Exhibit B - Real Property
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x
Exhibit C - Commencement Certificate
x
Exhibit D - Rules and Regulations
x
Exhibit E - Form of Guaranty
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2. GENERAL COVENANTS. Tenant covenants and agrees to pay Rent
and
perform the obligations hereafter set forth
and in consideration therefor
Landlord leases to Tenant the Premises as
depicted on the attached EXHIBIT A,
together with a non-exclusive right,
subject to the provisions hereof, to use
plazas, common areas, or other areas on the
real property legally described on
EXHIBIT B (the "Real Property") designated
by Landlord for the exclusive or
non-exclusive use of the tenants of the
Building ("Common Areas"). The Building,
Real Property, Common Areas, and
appurtenances are hereinafter collectively
sometimes called the "Building
Complex."
3. TERM. The Initial Term of the Lease commences at 12:01 a.m. on
the
Commencement Date and terminates at 12:00
midnight on the Expiration Date (the
Initial Term together with any extensions
thereof is herein referred to as the
"Term.").
4. RENT. Subject to the provisions below, commencing on the
Commencement Date and on the first day of
each month thereafter, Tenant shall
pay Base Rent in the amount stated in
Section 1.4, in advance without notice
(all amounts, including Base Rent, to be
paid by Tenant pursuant to this Lease
as the context requires are sometimes
referred to collectively as "Rent(s)").
Rents shall be paid without set off,
abatement, or diminution, at the office of
Landlord in Loveland, Colorado, or at such
other place as Landlord from time to
time designates in writing. Notwithstanding
the foregoing or the provisions of
Section 1.4 to the contrary, the Base Rent
for the first month shall be abated.
5. COMPLETION OF THE PREMISES.
5.1 Provisions regarding completion of the Premises are set forth
in
the attached Work Letter. "Initial Tenant
Finish" means the Premises in its
as-is condition as modified by all work, if
any, performed by Landlord at its
expense prior to the Commencement Date in
accordance with the Work Letter.
Except as provided in the Work Letter,
Landlord has no obligation for the
completion or remodeling of the Premises,
and Tenant accepts the Premises in its
"as is" condition on the Commencement Date.
If Landlord is delayed in delivering
the Premises to Tenant in accordance with
the Work Letter then the Commencement
Date will be postponed to the date Landlord
delivers the Premises to Tenant. If
delivery is on other than the first day of
the month, then the Commencement Date
will be the first day of the month
following the delivery date but all
provisions hereof, including Tenant's
obligation to pay Rent (prorated for a
partial month), will be in effect as of the
delivery date. The postponement of
Tenant's obligation to pay Rent is in full
settlement of all claims which Tenant
may otherwise have by reason of such delay.
If the Commencement Date is delayed,
the Expiration Date shall be extended so
that the Term will continue for the
full period set forth in Section 1.3. As
soon as the Term commences, Landlord
and Tenant agree to execute a commencement
agreement in the form attached as
EXHIBIT C, setting forth the exact
Commencement Date and Expiration Date.
5.2 Except as provided in the Work Letter, taking possession of
the
Premises by Tenant is conclusive evidence
that the Premises are in the condition
agreed between Landlord
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and Tenant and acknowledgment by Tenant of
satisfactory completion of any work
which Landlord has agreed to perform.
6. OPERATING EXPENSES.
6.1 Definitions. The additional terms below have the following
meanings
in this Lease:
(1) "Landlord's Accountants" means that individual or firm
employed
by Landlord from time to time to keep the
books and records for the Building
Complex, and/or to prepare the federal and
state income tax returns for Landlord
with respect to the Building Complex, which
books and records shall be certified
to by a representative of Landlord. All
determinations made hereunder shall be
made by Landlord's Accountants unless
otherwise stated.
(2) "Rentable
Area" means approximately 31,000 rentable square feet
of space. If there is a significant change
in the aggregate Rentable Area as a
result of an addition, partial destruction,
modification to building design, or
similar cause which causes a reduction or
increase in the Rentable Area on a
permanent basis or, if Landlord remeasures
the Building and a change in Rentable
Area occurs, Landlord's Accountants shall
make such adjustments in the
computations as are necessary to provide
for such change.
(3) "Tenant's Pro Rata Share" means the percentage set forth in
Section 1.5, which percentage has been
computed by dividing the total rentable
square footage of the Premises by the
Rental Area. If Tenant, at any time during
the Term, leases additional space in the
Building or if the Rentable Area is
adjusted, Tenant's Pro Rata Share shall be
recomputed by dividing the total
rentable square footage of space then
leased by Tenant (including any additional
space) by the Rentable Area and the
resulting figure shall become Tenant's Pro
Rata Share.
(4) "Operating Expense Year" means each calendar year during
the
Term, except that the first Operating
Expense Year begins on the Commencement
Date and ends on December 31 of such year
and the last Operating Expense Year
begins on January 1 of the calendar year in
which this Lease expires or is
terminated and ends on the date of such
expiration or termination. If an
Operating Expense Year is less than twelve
(12) months, Operating Expenses for
such year shall be prorated.
(5) "Operating Expenses" means all operating expenses of any kind
or
nature, paid or incurred by the Landlord,
which are in Landlord's reasonable
judgment necessary, appropriate, or
customarily incurred in connection with the
operation, service and maintenance of the
Building Complex including costs
incurred in fulfillment of Landlord's
services, operation and maintenance
obligations under the terms of this Lease.
Operating Expenses include:
(a) All real property taxes and assessments levied against the
Building Complex by any governmental or
quasi-governmental authority, including
taxes, assessments, surcharges, or service
or other fees of a nature not
presently in effect which are hereafter
levied on the Building Complex as a
result of the use, ownership or operation
of the Building Complex or for any
other reason, whether in lieu of or in
addition to, any current real estate
taxes and
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assessments. However, any taxes which are
levied on the rent of the Building
Complex will be determined as if the
Building Complex were Landlord's only real
property. In no event do taxes and
assessments include any federal or state
income taxes levied or assessed on
Landlord. Expenses for tax consultants to
contest taxes or assessments are also
included as Operating Expenses (all of the
foregoing are collectively referred to
herein as "Taxes"). Taxes also include
special assessments, license taxes,
business license fees, business license
taxes, commercial rental taxes, levies,
charges, penalties or taxes, imposed by
any authority against the Premises,
Building Complex or any legal or equitable
interest of Landlord. Special assessments
are deemed payable in such number of
installments permitted by law, whether or
not actually so paid, and include any
applicable interest on such installments.
Taxes (other than special assessments)
are computed on an accrual basis based on
the year in which they are levied,
even though not paid until the following
Operating Expense Year;
(b) Costs of supplies, including costs of relamping and
replacing
ballasts in all Building standard tenant
lighting;
(c) Costs of energy for the Building Complex, including costs
of
propane, butane, natural gas, steam,
electricity, solar energy and fuel oils,
coal or any other energy sources;
(d) Costs of water and sanitary and storm drainage services;
(e) Costs of security services;
(f) Costs of general maintenance, repairs, and replacements
including costs under HVAC and other
mechanical maintenance contracts; and
repairs and replacements of equipment used
in maintenance and repair work;
(g) Costs of maintenance, repair and replacement of
landscaping;
(h) Insurance premiums for the Building Complex, including
all-risk or multi-peril coverage, together
with loss of rent endorsement; the
part of any claim paid under the deductible
portion of any insurance policy
carried by Landlord; public liability
insurance; and any other insurance carried
by Landlord on any component parts of the
Building Complex;
(i) All labor costs, including wages, costs of worker's
compensation insurance, payroll taxes,
fringe benefits, including pension,
profit-sharing and health, and legal fees
and other costs incurred in resolving
any labor dispute;
(j) Professional building management fees, costs and expenses,
including costs of office space and storage
space required by management for
performance of its services (said building
management may, at Landlord's option,
be performed either by a third-party or
Landlord affiliated property management
company);
(k) Legal, accounting, inspection, and other consulting fees
(including fees for consultants for
services designed to produce a reduction in
Operating Expenses or improve the
operation, maintenance or state of repair of
the Building Complex);
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(l) Costs of capital improvements and structural repairs and
replacements to the Building Complex to
conform to changes subsequent to the
date of issuance of the shell and core
certificate of occupancy for the Building
in any Applicable Laws hereinafter defined
(herein "Required Capital
Improvements"); and the costs of any
capital improvements and structural repairs
and replacements designed primarily to
reduce Operating Expenses (herein "Cost
Savings Improvements"). Expenditures for
Required Capital Improvements and Cost
Savings Improvements will be amortized at a
market rate of interest over the
useful life of such capital improvement (as
determined by Landlord's
Accountants); however, the amortized amount
of any Cost Savings Improvement in
any year will be equal to the estimated
resulting reduction in Operating
Expenses;
(m) Costs incurred for Landlord's Accountants including costs
of
any experts and consultants engaged to
assist in making the computations; and
(n) All dues, assessments, impositions and charges payable to
associations;
"Operating Expenses" do not include:
(i) Costs of work, including painting and decorating, which
Landlord performs for any tenant other than work of a kind and
scope
which Landlord is obligated to furnish to all tenants whose
leases
contain a rental adjustment provision similar to this one;
(ii) Costs of repairs or other work occasioned by fire,
windstorm
or other insured casualty to the extent of insurance proceeds
received;
(iii) Leasing commissions, advertising expenses, and other
costs incurred in leasing space in the Building;
(iv) Costs of repairs or rebuilding necessitated by
condemnation;
(v) Interest on borrowed money or debt amortization, except as
specifically set forth above;
(vi) Depreciation on the Building Complex; or
(vii) To the extent paid directly by the Tenant, as
hereinafter provided, electrical costs for the Premises and
janitorial
services for the Premises.
If any lease entered into by Landlord with
any tenant in the Building provides
for a separate basis of computation for any
Operating Expenses with respect to
its leased premises, Landlord's Accountants
may modify the computation of Base
Operating Expenses, Rentable Area, and
Operating Expenses for a particular
Operating Expense Year to eliminate or
modify any expenses which are paid for in
whole or in part by such tenant. If the
Rentable Area is not fully occupied
during any particular Operating Expense
Year, Landlord's Accountants may adjust
those Operating Expenses which are affected
by occupancy for the particular
Operating Expense
6
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Year to reflect 100% occupancy.
Furthermore, in making any computations
contemplated hereby, Landlord's Accountants
may make such other modifications to
the computations as are required in their
judgment to achieve the intention of
the parties hereto.
6.2 Estimated Payments. During each Operating Expense Year
beginning
with the first month of the first Operating
Expense Year and continuing each
month thereafter throughout the Term,
Tenant shall pay Landlord, at the same
time as Base Rent is paid, an amount equal
to 1/12 of Landlord's estimate of
Tenant's Pro Rata Share of any projected
increases in Operating Expenses for the
particular Operating Expense Year in excess
of Base Operating Expenses
("Estimated Payment").
6.3 Annual Adjustments.
(1) Following the end of each Operating Expense Year, Landlord
shall
submit to Tenant a statement setting forth
the exact amount of Tenant's Pro Rata
Share of the Operating Expenses for the
Operating Expense Year just completed.
Beginning with the statement for the second
Operating Expense Year, each
statement shall set forth the difference,
if any, between Tenant's actual Pro
Rata Share for the Operating Expense Year
just completed and the estimated
amount for such Operating Expense Year.
Each statement shall also set forth the
projected increase, if any, in Operating
Expenses for the new Operating Expense
Year and the corresponding increase or
decrease in Tenant's monthly Rent for
such new Operating Expense Year above or
below the Rent paid by Tenant for the
immediately preceding Operating Expense
Year.
(2) To the extent that Tenant's Pro Rata Share of Operating
Expenses
for the period covered by a statement is
different from the Estimated Payment
during the Operating Expense Year just
completed, Tenant shall pay Landlord the
difference within 30 days following receipt
by Tenant of the statement or
receive a credit against the next due Rent,
as the case may be. Until Tenant
receives a statement, Tenant's Estimated
Payment for the new Operating Expense
Year shall continue to be paid at the prior
Estimated Payment, but Tenant shall
commence payment of Rent based on the new
Estimated Payment beginning on the
first day of the month following the month
in which Tenant receives the
statement. Tenant shall also pay Landlord
or deduct from the Rent, as the case
may be, on the date required for the first
payment, as adjusted, the difference,
if any, between the Estimated Payment for
the new Operating Expense Year set
forth in the statement and the Estimated
Payment actually paid during the new
Operating Expense Year. If, during any
Operating Expense Year, there is a change
in the information on which Tenant is then
making its Estimated Payments so that
the prior estimate is no longer accurate,
Landlord may revise the estimate and
there shall be such adjustments made in the
monthly Rent on the first day of the
month following notice to Tenant as shall
be necessary by either increasing or
decreasing, as the case may be, the amount
of monthly Rent then being paid by
Tenant for the balance of the Operating
Expense Year.
6.4 Miscellaneous. In no event will any decrease in Rent pursuant
to
any provision hereof result in a reduction
of Rent below the Base Rent. Delay by
Landlord in submitting any statement for
any Operating Expense Year does not
affect the provisions of this Section or
constitute a waiver of Landlord's
rights for such Operating Expense Year or
any subsequent Operating Expense
Years.
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6.5 Dispute. If Tenant disputes an adjustment submitted by Landlord
or
a proposed increase or decrease in the
Estimated Payment, Tenant shall give
Landlord notice of such dispute within 30
days after Tenant's receipt of the
adjustment. If Tenant does not give
Landlord timely notice, Tenant waives its
right to dispute the particular adjustment.
If Tenant timely objects, Tenant may
engage its own certified public accountants
("Tenant's Accountants") to verify
the accuracy of the statement complained of
or the reasonableness of the
estimated increase or decrease. If Tenant's
Accountants determine that an error
has been made, Landlord's Accountants and
Tenant's Accountants shall endeavor to
agree upon the matter, failing which such
matter shall be submitted to an
independent certified public accountant
selected by Landlord, with Tenant's
reasonable approval, for a determination
which will be conclusive and binding
upon Landlord and Tenant. All costs
incurred by Tenant for Tenant's Accountants
shall be paid for by Tenant unless Tenant's
Accountants disclose an error,
acknowledged by Landlord's Accountants (or
found to have occurred through the
above independent determination), of more
than 25% in the computation of the
total amount of Operating Expenses, in
which event Landlord shall pay the
reasonable costs incurred by Tenant to
obtain such audit. Notwithstanding the
pendency of any dispute, Tenant shall
continue to pay Landlord the amount of the
Estimated Payment or adjustment determined
by Landlord's Accountants until the
adjustment has been determined to be
incorrect. If it is determined that any
portion of the Operating Expenses were not
properly chargeable to Tenant, then
Landlord shall promptly credit or refund
the appropriate sum to Tenant.
7. SERVICES.
7.1 Subject to the provisions below, Landlord agrees, in
accordance
with standards determined by Landlord from
time to time for the Building: (1) to
furnish running water at those points of
supply for general use of tenants of
the Building; (2) to furnish to interior
Common Areas heated or cooled air (as
applicable), electrical current, janitorial
services, and maintenance; (3) to
furnish heated or cooled air to the
Premises for standard office use provided
the recommendations of Landlord's engineer
regarding occupancy and use of the
Premises are complied with by Tenant; (4)
to provide the general use of
passenger elevators for ingress and egress
to and from the Premises (at least
one such elevator shall be available at all
times except in the case of
emergencies or repair); (items (1) through
(4) are collectively called
"Services"). These services are to be
provided twenty-four hours a day, seven
days a week.
7.2 The Premises shall be separately metered and Tenant shall
obtain
all electricity for the Premises directly
from the public utility company
furnishing the same. Tenant shall pay all
utility deposits, fees and monthly
service charges for electricity services
for the Premises. Tenant shall also pay
the cost of replacing light bulbs and/or
tubes and ballast used in, all lighting
in the Premises other than that provided by
Landlord to all tenants of the
Building.
7.3 Landlord may temporarily discontinue, reduce, or curtail
Services
when necessary due to accident, repairs,
alterations, strikes, lockouts,
Applicable Laws, or any other happening
beyond Landlord's reasonable control.
Landlord is not liable for damages to
Tenant or any other party as a result of
any interruption, reduction, or
discontinuance of Services (either temporary or
permanent) nor shall the temporary
occurrence of any such event be construed as
an eviction of Tenant, cause or permit an
abatement, reduction or setoff of
Rent, or operate to release Tenant from
Tenant's obligations.
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7.4 Tenant shall promptly notify Landlord of any accidents or
defects
in the Building of which Tenant becomes
aware, including defects in pipes,
electric wiring, and HVAC equipment, and of
any condition which may cause injury
or damage to the Building or any person or
property therein.
7.5 As Tenant requires its own janitorial services, Tenant
shall
separately contract and pay for such
services with any company approved by
Landlord, in its reasonable discretion and
accordingly, Landlord shall not be
required to provide any janitorial services
to the Premises.
8. QUIET ENJOYMENT. So long as an Event of Default has not
occurred,
Tenant is entitled to the quiet enjoyment
and peaceful possession of the
Premises subject to the provisions of this
Lease.
9. CHARACTER OF OCCUPANCY. Tenant shall occupy the Premises for
the
Permitted Use and for no other purpose, and
use it in a careful, safe, and
proper manner and pay on demand for any
damage to the Premises caused by misuse
or abuse by Tenant, Tenant's agents or
employees, or any other person entering
upon the Premises under express or implied
invitation of Tenant (collectively,
"Tenant's Agents"). Tenant, at Tenant's
expense, shall comply with all
applicable federal, state, city,
quasi-governmental and utility provider laws,
codes, rules, and regulations now or
hereafter in effect ("Applicable Laws")
which impose any duty upon Landlord or
Tenant with respect to the occupation or
alteration of the Premises. Tenant shall
not commit or permit waste or any
nuisance on or in the Premises. Tenant
agrees not to store, keep, use, sell,
dispose of or offer for sale in, upon or
from the Premises any article or
substance prohibited by any insurance
policy covering the Building Complex nor
shall Tenant keep, store, produce or
dispose of on, in or from the Premises or
the Building Complex any substance which
may be deemed an infectious waste or
hazardous substance under any Applicable
Laws, except customary office and
cleaning supplies.
10. MAINTENANCE, ALTERATIONS AND REENTRY BY LANDLORD.
10.1 Landlord will (i) make repairs and replacements to HVAC,
mechanical, life safety and electrical
systems in the Premises (to the extent
such systems are Building standard) deemed
necessary by Landlord for normal
operations of the Building Complex; and
(ii) provide upkeep, maintenance, and
repairs to all Common Areas. Except as
provided in this Section or otherwise
expressly required in this Lease, Landlord
is not required to make improvements
or repairs to the Premises during the
Term.
10.2 Landlord or Landlord's agents may at any time enter the
Premises
for examination and inspection, or to
perform, if Landlord elects, any
obligations of Tenant which Tenant fails to
perform or such cleaning,
maintenance, repairs, replacements,
additions, or alterations as Landlord deems
necessary for the safety, improvement, or
preservation of the Premises or other
portions of the Building Complex or as
required by Applicable Laws. Landlord or
Landlord's agents may also show the
Premises to prospective tenants, purchasers
and Mortgagees. Any such reentry does not
constitute an eviction or entitle
Tenant to abatement of Rent. Landlord may
make such alterations or changes in
other portions of the Building Complex as
Landlord desires so long as such
alterations and changes do not unreasonably
interfere with Tenant's occupancy of
the Premises. Landlord may use the Common
Areas and
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one or more entrances to the Building
Complex as may be necessary in Landlord's
judgment to complete such work.
11.
ALTERATIONS AND REPAIRS BY TENANT.
11.1 Tenant shall not make any alterations to the Premises during
the
Term, including installation of equipment
or machinery which requires
modifications to existing electrical
outlets or increases Tenant's usage of
electricity beyond building design
standards (collectively "Alterations")
without in each instance first obtaining
the written consent of Landlord.
Landlord's consent or approval of the
plans, specifications and working drawings
for any Alterations shall not constitute
any warranty or representation by
Landlord (and shall not impose any
liability on Landlord) as to their
completeness, design sufficiency, or
compliance with Applicable Laws. Tenant
shall at its cost: pay all engineering and
design costs incurred by Landlord as
to all Alterations, obtain all governmental
permits and approvals required, and
cause all Alterations to be completed in
compliance with Applicable Laws and
requirements of Landlord's insurance. All
such work relating to Alterations
shall be performed in a good and
workmanlike manner, using new materials and
equipment at least equal in quality to the
Initial Tenant Finish. All
Alterations, repair and maintenance work
performed by Tenant shall be done at
Tenant's expense by Landlord's employees
or, with Landlord's prior consent and
subject to any conditions imposed by
Landlord, by other persons requested by
Tenant; however, if such work is not
performed by Landlord's employees, Tenant
shall pay Landlord a supervisory fee upon
receipt of an invoice. If Landlord
authorizes such persons to perform work,
Tenant shall deliver to Landlord prior
to commencement certificates issued by
insurance companies qualified to do
business in the State of Colorado,
evidencing that worker's compensation, public
liability insurance, and property damage
insurance (in amounts, with companies
and on forms satisfactory to Landlord) are
in force and maintained by all
contractors and subcontractors engaged to
perform such work. All liability
policies shall name Landlord, Building
Manager, and Mortgagee as additional
insureds. Each certificate shall provide
that the insurance may not be cancelled
or modified without 10 days' prior written
notice to Landlord and Mortgagee.
Landlord also has the right to post notices
in the Premises in locations
designated by Landlord stating that
Landlord is not responsible for payment for
such work and containing such other
information as Landlord deems necessary. All
such work shall be performed in a manner
which does not unreasonably interfere
with Landlord or other tenants of the
Building, or impose additional expense
upon Landlord in the operation of the
Building Complex.
11.2 Tenant shall keep the Premises in as good order, condition,
and
repair and in an orderly state, as on the
Commencement Date, loss by fire or
other casualty or ordinary wear
excepted.
11.3 All Alterations, including partitions, paneling, carpeting,
drapes
or other window coverings, and light
fixtures (but not including movable office
furniture not attached to the Building),
are deemed a part of the real estate
and the property of Landlord and remain
upon and be surrendered with the
Premises at the end of the Term, whether by
lapse of time or otherwise, unless
Landlord notifies Tenant no later than 15
days prior to the end of the Term that
it elects to have Tenant remove all or part
of such Alterations, and in such
event, Tenant shall at Tenant's expense
promptly remove the Alterations
specified and restore the Premises to its
prior condition, reasonable wear and
tear excepted.
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12. MECHANICS' LIENS. Tenant shall pay for all work done on the
Premises by Tenant or at its request (other
than the Total Construction Costs)
of a character which may result in liens on
Landlord's or Tenant's interest and
Tenant will keep the Premises free of all
mechanics' liens, and other liens on
account of such work. Tenant indemnifies,
defends, and saves Landlord harmless
from all liability, loss, damage, or
expenses, including attorneys' fees, on
account of any claims of laborers,
materialmen or others for work performed or
for materials or supplies furnished to
Tenant or persons claiming under Tenant.
If any lien is recorded against the
Premises or Building or any suit affecting
title thereto is commenced as a result of
such work, or supplying of materials,
Tenant shall cause such lien to be removed
of record within 5 days after notice
from Landlord. If Tenant desires to contest
any claim, Tenant must furnish
Landlord adequate security of at least 150%
of the amount of the claim, plus
estimated costs and interest and, if a
final judgment establishing the validity
of any lien is entered, Tenant shall
immediately pay and satisfy the same. If
Tenant fails to proceed as aforesaid,
Landlord may pay such amount and any
costs, and the amount paid, together with
reasonable attorneys' fees incurred,
shall be immediately due Landlord upon
notice.
13. SUBLETTING AND ASSIGNMENT.
13.1 Tenant, as well as any other party that has acquired an
interest
in this Lease by virtue of a sublease or
assignment, shall not sublet any part
of the Premises nor assign or otherwise
transfer this Lease or any interest
herein (sometimes referred to as
"Transfer," and the subtenant or assignee may
be referred to as "Transferee") without the
consent of Landlord first being
obtained, which consent will not be
unreasonably withheld provided that: (1)
Tenant complies with the provisions of
Section 14.4; (2) Landlord declines to
exercise its rights under Section 14.3; (3)
the Transferee is engaged in a
business and the portion of the Premises
will be used in a manner which is in
keeping with the then standards of the
Building and does not conflict with any
exclusive use rights granted to any other
tenant of the Building Complex; (4)
the Transferee has reasonable financial
worth in light of the responsibilities
involved; (5) Tenant is not in default at
the time it makes its request; (6) the
Transferee is not a governmental or
quasi-governmental agency; (7) the
Transferee is not a tenant or currently
negotiating a lease with Landlord in any
Building owned by Landlord in the Loveland
- Ft. Collins area (including the
Building Complex); and (8) the rent to be
paid by the Transferee is not less
than the Rent paid by Tenant for such space
and is not less than 85% of the
rental rate then being offered by Landlord
for similar space in the Building.
Transfer includes a sale by Tenant of
substantially all of its assets or stock
if Tenant is a publicly traded corporation,
a merger of Tenant with another
corporation, the transfer of 25% or more of
the stock in a corporate tenant
whose stock is not publicly traded, or
transfer of 25% or more of the beneficial
ownership interests in a partnership or
limited liability company tenant.
Notwithstanding the foregoing provisions, a
Transfer shall not include a sale or
transfer of stock by Tenant pursuant to an
I.P.O. or any form of public offering
of Tenant's stock, as long as Tenant's
current shareholders retain at least 25%
of the issued and outstanding stock
thereof.
13.2 Following any Transfer in accordance with this Section 13,
Landlord may, after default by Tenant,
collect rent from the Transferee or
occupant and apply the net amount collected
to the Rent, but no Transfer or
collection will be deemed an acceptance of
the Transferee or occupant as Tenant
or release Tenant from its obligations.
Consent to a Transfer shall not relieve
Tenant from obtaining Landlord's consent to
any other Transfer.
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Notwithstanding Landlord's consent to a
Transfer, Tenant shall continue to be
primarily liable for its obligations. If
Tenant collects any rent or other
amounts from a Transferee in excess of the
Rent for any monthly period, Tenant
shall pay Landlord the excess monthly, as
and when received.
13.3 Notwithstanding the above, if Tenant requests Landlord's
consent
to sublet 25% or more of the Premises,
Landlord may refuse to grant such consent
in its sole discretion and terminate this
Lease as to the portion of the
Premises with respect to which such consent
was requested; provided, however, if
Landlord does not consent and elects to
terminate the Lease as to such portion,
Tenant may within 15 days after notice from
Landlord to this effect withdraw
Tenant's request for consent. If such
termination occurs, it shall be effective
on the date designated in a notice from
Landlord and shall not be more than 30
days following such notice.
13.4 Tenant must notify Landlord at least 90 days prior to the
desired
date of the Transfer ("Tenant's Notice").
Tenant's Notice shall describe the
portion of the Premises to be transferred
and the terms and conditions. Landlord
has, without obligation, 60 days following
receipt of Tenant's Notice to sublet
the space on Tenant's behalf or to exercise
its rights pursuant to Section 13.3
if Tenant's Notice discloses that 25% or
more of the Premises is involved. If
the space covered by Tenant's Notice is
subleased by Landlord, rent and other
sums due from the subtenant will be paid to
Tenant directly and Landlord has no
responsibility for the performance by such
subtenant of its o
