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E XHIBIT
10.29
O FFICE L
EASE
S IGNATURE
C ENTRE AT D ENVER W
EST
14143 D
ENVER W EST P
ARKWAY
D ENVER ,
CO 80401
By and
Between
S IGNATURE
C ENTRE AT D ENVER W
EST LLC
A D
ELAWARE LIMITED
LIABILITY COMPANY
(“ L
ANDLORD ”)
And
S UN F
UELS I NC .
A C
OLORADO C ORPORATION
(“ T
ENANT ”)
Dated As Of
M AY
25 2007
O FFICE B
UILDING L EASE
O FFICE L
EASE F ACING P
AGE
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Lease Date:
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May 25, 2007 |
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Landlord:
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Name:
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SIGNATURE
CENTRE AT DENVER WEST LLC |
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Address:
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143 Union
Boulevard, Suite 300 |
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Lakewood,
Colorado 80228-1824 |
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Tenant:
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Name:
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SUN FUELS
INC. |
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Address:
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1400 West
122 nd Ave. Suite 110 |
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Westminster, CO 80234 |
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Leased Premises:
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Signature
Centre at Denver West |
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Suite Number:
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100 &
170 |
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Floor:
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First |
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Rentable Square Footage:
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Approximately 7,602 rentable square feet |
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Building Address:
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14143
Denver West Parkway |
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Lakewood,
Colorado 80401 |
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Rentable Square Footage:
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Approximately 185,920 rentable square feet |
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Lease Term:
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Commencement Date:
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The later
of (i) August 1, 2007 and (ii) Substantial
Completion of the Leased Premises. |
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Initial Term:
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5 years
plus 3 months |
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Base Rent:
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$18.00
NNN per rentable square foot |
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$136,836.00 per annum payable in installments of |
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$11,403.00 per month.* |
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* subject
to adjustment, as provided in the Lease. |
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Lease Deposit:
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$18,000.00 |
THIS OFFICE LEASE FACING
PAGE, together with the General Lease Provisions and any Riders,
Exhibits, Schedules and Lease Guaranties attached hereto and
initialed by the parties, will constitute the Lease between Tenant
described above, as Tenant, and SIGNATURE CENTRE AT DENVER WEST
LLC, as Landlord, for the Premises described above, made and
entered into as of the Lease Date specified above.
T ABLE
OF C ONTENTS
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P AGE |
| 1. |
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The
Leased Premises |
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1 |
| 2. |
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Definitions |
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1 |
| 3. |
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Term of
Lease |
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2 |
| 4. |
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Base
Rent |
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2 |
| 5. |
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Commencement and Conduct of Business |
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3 |
| 6. |
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Business
taxes, etc. |
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3 |
| 7. |
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Rent
Adjustments |
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4 |
| 8. |
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Bulbs,
Tubes, Ballasts |
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7 |
| 9. |
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Meters |
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7 |
| 10. |
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Use of
Electricity |
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7 |
| 11. |
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Tenant
Repair |
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7 |
| 12. |
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Assignment, Subletting, Parting with Possession. |
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8 |
| 13. |
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Rules and
Regulations |
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8 |
| 14. |
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Use of
Leased Premises |
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9 |
| 15. |
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Tenant’s Insurance |
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9 |
| 16. |
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Cancellation of Insurance |
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10 |
| 17. |
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Observance of Law |
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10 |
| 18. |
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Environmental Matters. |
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10 |
| 19. |
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Waste and
Nuisance |
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11 |
| 20. |
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Entry by
Landlord |
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11 |
| 21. |
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Indemnification of Landlord |
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12 |
| 22. |
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Exhibiting Premises |
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12 |
| 23. |
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Alterations |
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12 |
| 24. |
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Glass |
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13 |
| 25. |
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Signs,
Drapes, Shutters |
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13 |
| 26. |
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Subordination |
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13 |
| 27. |
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Certificates |
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14 |
| 28. |
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Acceptance of Premises |
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14 |
| 29. |
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Quiet
Enjoyment |
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14 |
| 30. |
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Services |
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14 |
| 31. |
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Fixtures |
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16 |
| 32. |
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Landlord’s Insurance |
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16 |
| 33. |
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Fires OR
OTHER CASUALTY. |
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16 |
| 34. |
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Condemnation |
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17 |
| 35. |
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Loss and
Damage |
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17 |
| 36. |
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Delays |
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18 |
| 37. |
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Default |
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18 |
| 38. |
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Remedies
of Landlord |
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19 |
| 39. |
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Holding
Over |
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21 |
| 40. |
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Directory
Board |
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21 |
| 41. |
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Transfer
by Landlord |
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21 |
| 42. |
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liability
of landlord |
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21 |
| 43. |
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Notice |
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21 |
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| 44. |
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Governing Law
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22 |
| 45. |
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Payment in United States
Currency
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22 |
| 46. |
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Lease Entire Agreement
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22 |
| 47. |
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Binding Effect
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| 48. |
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Security Deposit
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| 49. |
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Interpretation
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| 50. |
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Severability
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| 51. |
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Captions
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23 |
| 52. |
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Recording—Short Form
Memo
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23 |
| 1. |
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Option To Renew
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25 |
| 2. |
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TENANT IMPROVEMENTS
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25 |
| 3. |
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parking
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25 |
| 4. |
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Signage
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26 |
| 5. |
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Overtime HVAC
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26 |
| 6. |
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access
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26 |
| LEED-CS Credits Featured in the Project |
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29 |
| Sustainable Sites |
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29 |
| Site Selection |
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29 |
| Alternative Transportation |
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29 |
| Open Space |
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29 |
| Stormwater Design |
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| Heat Island Effect |
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29 |
| Water Efficiency |
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29 |
| Water Efficient Landscaping |
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29 |
| Water Use Reduction |
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29 |
| Energy & Atmosphere |
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29 |
| Optimize Energy Performance |
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29 |
| Enhanced Commissioning |
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29 |
| Enhanced Refrigerant Management |
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29 |
| Measurement & Verification |
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29 |
| Green Power |
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29 |
| Materials & Resources |
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29 |
| Storage & Collection of Recyclables |
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29 |
| Construction Waste Management |
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| Recycled Content |
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29 |
| Regional Materials |
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| Certified Wood |
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29 |
| Indoor Environmental Quality |
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29 |
| Environmental Tobacco Smoke Control |
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| Outdoor Air Delivery Monitoring |
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| Increased Ventilation |
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29 |
| Construction IAQ Plan |
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29 |
| Low Emitting Materials |
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29 |
| Indoor Pollutant & Chemical Source Control |
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| Controllability of Systems |
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| Thermal Comfort |
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29 |
Page iii
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| Daylight
& Views |
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29 |
| Innovation in Design |
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29 |
| Worker
Productivity Case Study |
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| It is
understood by the tenant that tenant participation is required to
achieve and maximize the benefit of the aforementioned sustainable
design features. Not all the featured LEED-CS credits require
participation from the Tenant. The following features either
require tenant participation or have been provided to the tenant
for direct use. |
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29 |
| SUSTAINABLE
SITES |
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30 |
| WATER
EFFICIENCY |
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31 |
| ENERGY & ATMOSPHERE |
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31 |
| MATERIALS
AND RESOURCES |
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36 |
| INDOOR
ENVIRONMENTAL QUALITY |
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44 |
| RESOURCES |
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46 |
A
TTACHMENTS
E XHIBIT A – O
FFICE L EASE A
DDITIONAL P ROVISIONS
E XHIBIT B – T
ENANT W ORK L ETTER
AND D ESIGN G
UIDELINES /E NVIRONMENTAL P
OLICIES
E XHIBIT C – R
ULES AND R
EGULATIONS
E XHIBIT D – L
EASE C ONFIRMATION R
IDER
E XHIBIT E – S
PACE P LAN (A TTACHED
, D EPICTING ALL S
PACE B EING L EASED
ON F IRST F LOOR
)
E XHIBIT F – L
EGAL D ESCRIPTION OF R
EAL P ROPERTY
Page iv
O FFICE B
UILDING L EASE
G ENERAL L
EASE P ROVISIONS
In consideration of the Rent
and the covenants and agreements hereinafter made on the part of
the Tenant to be paid, observed and performed, the Landlord has
demised and hereby leases to the Tenant, the Leased Premises
described on the Office Lease Facing Page attached
hereto and outlined in the Space Plan attached hereto
as Exhibit E comprising approximately 7.602 square feet of
space and located on the first floor of the building at 14143
Denver West Parkway, Lakewood, Colorado (the “
Building ”) and more particularly described on
Exhibit F attached hereto (the “ Real
Property ”), but excluding therefrom any part of the
exterior face of the Building, together with the right of the
Tenant, in common with the Landlord, its other tenants, subtenants
and invitees thereof, to the nonexclusive use of the following
portions of the Building:
(a) The entrance foyer and
lobby of the Building;
(b) The common corridors on
the floor of the Building on which the Leased Premises are
situated; together with public entrance doors, halls, stairways,
passages, shipping and receiving areas and lavatories in the
Building;
(c) The Building grounds and
parking area.
In this Lease the following
terms or words will have the following meanings.
(a) The terms appearing on
the Office Lease Facing Page attached hereto will have the meanings
stated thereupon.
(b) “
Herein ”, “ hereof ”,
“ hereby ”, “
hereunder ”, “ hereto
”, “ hereinafter ” and similar
expressions refer to this Lease and not to any particular
paragraph, section or other portion thereof, unless the context
otherwise specifies.
(c) “ Business
Day ” means any of the days from Monday to Friday of
each week inclusive unless such day is a holiday.
(d) “
Commencement Date ” means the later of
(i) the date so designated on the Office Lease Facing Page
attached hereto, or (ii) the date of Substantial
Completion.
(e) “ Substantial
Completion” means the date on which Landlord has
completed the Tenant Improvements in accordance with the Tenant
Improvement Plans and Specifications, subject to punch-list items
that would not prevent the Tenant’s use or occupancy of the
Leased Premises, and is not dependent upon whether Tenant has
received any approvals Tenant may require specific for
Tenant’s business. If Landlord has not substantially
completed construction of the Building on or prior to
October 31, 2007, then either party will have the right to
terminate this Lease prior to substantial completion of
construction of the Building upon written notice to the other party
and this Lease will be null and void and Landlord and Tenant will
be released from all further obligations under this Lease. If the
Commencement Date is different than the date designated on the
Office Lease Facing Page then Landlord and Tenant will include the
Commencement Date in the Lease Confirmation Rider to be executed on
or about the Commencement Date.
Page 1
(f) “ Lease
Confirmation Rider ” means the document,
substantially in the form set out in Exhibit D to this
Lease, that sets out the essential elements of the terms of this
Lease as of the Commencement Date.
(g) “ Normal
Business Hours ” means the hours from 6:00 AM to 7:00
PM on Business Days and the hours of 8 a.m. to 1 p.m. on Saturdays
unless Saturday is a holiday.
(h) “ Operating
Costs ” has the meaning set forth in
Section 7.1(c)(i).
(i) “ Prime
Rate ” will mean the prime rate of interest published
in the Western Edition of The Wall Street Journal or any
successor publication from time to time, adjusted for any change in
such prime rate, provided that if neither The Wall Street
Journal nor any successor publication is published, any
publication of bank or other lending institution prevailing rates
of interest charged to most favored customers reasonably selected
by the landlord.
(j) “ Real Estate
Taxes ” has the meaning set forth in
Section 7.1(b)(i).
(k) “
Rent ”, as the term is used throughout this
Lease, will denote the “Base Rent”, as is described in
Section 4, and all other financial obligations of the Tenant
hereunder which are herein described as “Additional
Rental” or “Additional Rent”.
(l) “ Rentable
Square Footage ” will mean square footage determined
by Landlord’s architect, acting consistently and reasonably,
applying measurement standards promulgated by BOMA International
The initial Rentable Square Footage of the Leased Premises and the
Building will be confirmed in a Lease Confirmation Rider between
the Landlord and the Tenant, executed on or about the Commencement
Date. Rentable Square Footage may be remeasured by Landlord’s
architect and adjusted by written notice from the Landlord to the
Tenant if the Rentable Square Footage of the Leased Premises or the
Building changes during the Term.
(m) “Tenant Work
Letter” means the Tenant Work Letter and Design
Guidelines attached to this Lease as Exhibit B and
incorporated herein by reference. “Tenant
Improvements” comprise those alterations to and
installations in the Leased Premises that are set out in the Tenant
Work Letter and any amendments to the Tenant Work Letter as are
agreed to by the Landlord in writing subsequent to the Substantial
Completion Date.
(n) “
Term ” means the number of years and months in
the Initial Term, set forth on the Office Lease Facing Page
attached hereto, to be computed from 12 o’clock noon on the
Commencement Date and expiring at 12 o’clock noon the last
day of such Lease Period together with any extension thereof
pursuant to the provisions of Exhibit A ,
Section 1.
Tenant will have the right to
have and hold the Leased Premises for and during the Term subject
to the payment of the Base Rent and the Additional Rent and the
full and timely performance by Tenant of the covenants and
conditions hereinafter set forth.
4.1 Tenant covenants and
agrees to timely pay without notice, deduction, offset or abatement
to the Landlord at the Building, or such other address as Landlord
may notify Tenant of in writing, yearly and every year during the
Term hereof, the annual Base Rent in lawful money of the United
States, payable in the monthly installments set forth in
Section 4.2 hereof each month, in advance on the first day of
each month during the Term hereof. If the Term hereof commences on
any day other than the first day or expires on any day other than
the last day of a month, Base Rent for the fractions of a month at
the commencement and at the end of the Term will be adjusted pro
rata on a per diem basis.
Page 2
4.2 Commencing on the
Commencement Date the annual base rent (“ Base Rent
”) for each year during the Initial Term shall be determined
in accordance with the following schedule:
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Year
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Annual Base Rate |
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Monthly Base Rent |
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Months 1-6
Months 7-12
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$
$ |
9.00/RSF/NNN
18.00/RSF/NNN |
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$
$ |
5,701.50
11,403.00 |
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2
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$ |
18.50/RSF/NNN |
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$ |
11,719.75 |
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3
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$ |
19.00/RSF/NNN |
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$ |
12,036.50 |
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4
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$ |
19.50/RSF/NNN |
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$ |
12,353.25 |
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5
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$ |
20.00/RSF/NNN |
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$ |
12,670.00 |
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Months 61-63
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$ |
20.50/RSF/NNN |
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$ |
12,986.75 |
| 5. |
COMMENCEMENT AND CONDUCT OF BUSINESS |
Tenant will commence its
business in the Leased Premises on the Commencement Date and
thereafter will operate its business in the Leased Premises in
compliance with the provisions of this Lease, and applicable
governmental laws and regulations provided that nothing in this
section will require the Tenant to carry on business during any
period prohibited by any law or ordinance regulating or limiting
the hours during which such business may be carried on.
6.1 Tenant will fully and
timely pay all business and other taxes, charges, rates, duties,
assessments and license fees levied, imposed, charged or assessed
against or in respect of the Tenant’s occupancy of the Leased
Premises or in respect of the personal property, trade fixtures,
furniture and facilities of the Tenant or the business or income of
the Tenant on and from the Leased Premises, if any, as and when the
same become due, and will indemnify and hold Landlord harmless from
and against all payment of such taxes, charges, rates, duties,
assessments and license fees and against all loss, costs, charges
and expenses occasioned by or arising from any and all such taxes,
rates, duties, assessments and license fees. Notwithstanding the
foregoing Tenant shall have the right to contest any of the items
enumerated in Section 6.1 provided that such contest is
promptly commenced and diligently pursued to completion and will
not result in a lien on any portion of the building.
Page 3
6.2 Upon receipt of a written
request from Landlord, Tenant will promptly deliver to Landlord for
inspection receipts for payment of all taxes, charges, rates,
duties, assessments and licenses in respect to all improvements,
equipment and facilities of the Tenant on or in the Leased Premises
which were due and payable up to one year prior to such request,
and in any event to furnish to the Landlord, if requested by the
Landlord, evidence, reasonably satisfactory to the Landlord of any
such payments. Landlord will have no obligation hereunder or
otherwise to make or monitor the making of such payments. Landlord
shall not provide a written notice under this Section 6.2 more
than once every six (6) calendar months.
Assuming that the Building is
fully assessed and ninety five percent (95%) occupied, the Landlord
estimates that the Tenant’s pro rata share of Real Estate
Taxes and Operating Costs will be $7.90 per rentable square foot
per year. The Landlord will cap increases in controllable Operating
Costs at five percent (5%) per annum. Controllable expenses will
include all expenses for the operation and maintenance of the
Building except for Real Estate Taxes, property taxes, insurance,
utilities and unforeseeable major equipment failures.
7.1 Real Estate Taxes and
Operating Costs
(a) Tenant will pay to the
Landlord as Additional Rent, a portion of the Real Estate Taxes and
a portion of the Operating Costs, both of which are to be
determined as follows:
(b)(i) “ Real
Estate Taxes ” will mean and include all general and
special taxes, assessments, duties and levies, charged and levied
upon or assessed against the Building, the Real Property, any
improvements situated on the Real Property, whether owned by
Landlord or Tenant, not paid directly by the Tenant. Further, if at
any time during the Term of this Lease the method of taxation of
real estate prevailing at the time of execution hereof will be, or
has been, altered so as to cause the whole or any part of the taxes
now or hereafter levied, assessed or imposed upon real estate to be
levied, assessed or imposed upon Landlord, wholly or partially, as
a capital levy or otherwise, or on or measured by the rents
received therefrom then such new or altered taxes attributable to
the Leased Premises will be deemed to be included within the term
Real Estate Taxes for purposes of this Section, save and except
that such will not be deemed to include any increase in said tax
not attributable to the Building.
(ii) The amount of Real
Estate Taxes attributed to the Leased Premises for any year or
portion of year will be the amount of such taxes determined by
dividing the Rentable Square Footage of the Leased Premises by the
total Rentable Square Footage in the Building and multiplying the
resultant percentage by the total Real Estate Taxes. If the
Building is part of a building complex not separately assessed for
property tax purposes, taxes will be apportioned by the Landlord
among the buildings in the complex in proportion to the Rentable
Square Footage of each building. Landlord and Tenant will confirm
the total Rentable Square Footage in the Leased Premises and the
Building and such percentage in a Lease Confirmation Rider to be
executed on or about the Commencement Date.
(c)(i) The term “
Operating Costs ” means the total amounts paid
or payable, whether by the Landlord or others on behalf of the
Landlord, in connection with the ownership, maintenance, repair,
and operation of the Building, including without limiting the
generality of the foregoing, the aggregate of the amount paid for
all fuel used in heating and air conditioning of the Building, the
purchase of energy for heating or other purposes; the amount paid
or payable for all electricity furnished by the Landlord to the
Building; the amount paid or payable for replacement of electric
light bulbs, tubes and ballasts; the amount paid or payable for all
hot and cold water (other than that paid by tenants of the Building
directly) and sewer service; the amount paid or payable for any
other utility or service provided to the Building or its grounds;
the amount paid or payable for all labor and/or wages and other
payments including cost to Landlord
Page 4
of workmen’s
compensation and disability insurance, payroll taxes, welfare and
fringe benefits made to janitors, landscapers, gardeners,
caretakers, and other employees, contractors and subcontractors of
the Landlord (including but not limited to salary or wages of the
building manager) involved in the operation, maintenance, and
repair of the Building, managerial and administrative expenses
related to the Building; the total charges of any independent
contractors employed in the repair, care, operation, maintenance,
and cleaning of the Building; the amount paid or payable for all
supplies including all supplies and necessities which are
occasioned by everyday wear and tear; the costs of climate and
energy management control systems, window and exterior wall
cleaning, painting and repair, maintenance and repair to the common
areas, including but not limited to replacement of landscaping and
resurfacing, restriping and refilling parking areas, telephone
costs; the cost of accounting services necessary to compute the
rents and charges payable by tenants of the Building; fees for
management, legal, accounting, inspection and consulting services,
the cost of guards and other protection services; payments for
general maintenance and repairs to the plant and equipment
supplying climate control; the amount paid for premiums for all
insurance; and all amounts payable in accordance with ground
leases, easements, or rights-of-way appurtenant to the Building.
Operating Costs will not, however, include interest on debt,
capital retirement of debt, depreciation, costs properly chargeable
to capital account in accordance with generally accepted accounting
practices applicable to office buildings, and costs directly
charged by the Landlord to any tenant or tenants. [Notwithstanding
anything contained herein to the contrary, Operating Costs shall
not include (1) depreciation on the Building (other than
depreciation on personal property, equipment, window coverings on
external windows provided by Landlord and carpeting, if any, in
corridors and common areas), (2) costs of alterations of space
or other improvements made for other tenants of the Building,
(3) finders’ fees and real estate brokers’
commissions, (4) ground lease payments, mortgage principal or
interest, (5) capital items other than those referred to in
this Section 7.1(c)(i) above, (6) costs of replacements
to personal property and equipment for which depreciation costs are
included as an Operating Cost (7) costs of excess or
additional services provided to any tenant in the Building which
are directly billed to such tenant, (8) the costs of repairs
due to casualty or condemnation which are reimbursed by third
parties, (9) any costs due to Landlord’s breach of this
Lease, (10) any income, estate, inheritance, or other transfer
tax and any excess profit, franchise, or similar taxes on
Landlord’s business, (11) all costs, including, but not
limited to legal fees, relating to activities for the solicitation
and executed of leases of space in the Building, and (12) any
legal fees incurred by Landlord in enforcing its rights under other
leases for premises in the Building. The reference to “
Building ” in this Lease will include all
related facilities, including corridors, lobbies, arcades,
sidewalks, grounds, and other public areas contained in or around
the Building, as well as landscaping, parking areas, and exterior
walkways and areas.
(i) The amount of Operating
Costs attributed to the Leased Premises for any year or portion of
year will be determined by dividing the Rentable Square Footage of
the Leased Premises by the total Rentable Square Footage in the
Building and multiplying the resultant percentage by the total of
such Operating Costs. If the Building is part of a building complex
owned by the Landlord, Operating Costs will be apportioned by the
Landlord among the buildings in the complex in proportion to the
Rentable Square Footage. Landlord and Tenant will confirm the total
Rentable Square Footage in the Leased Premises and the Building and
such percentage in a Lease Confirmation Rider to be executed on or
about the Commencement Date.
(d) Excess Usage.
“Excess Usage” means usage of Building
service, including but not limited to utilities and HVAC, outside
Normal Business Hours or in excess of the amount of such services
that Landlord reasonably determines to be typical for the Building.
If the Tenant wishes Excess Usage of the HVAC, i.e., use outside
normal business hours, Tenant will pay to Landlord an hourly fee
for such Excess Usage in such amount reasonably established by
Landlord from time to time on a uniform basis for all tenants in
the Building, taking into consideration the square footage occupied
by such tenants. Tenant will pay for all such Excess Usage during
the Term, as Additional Rent. All invoices for such Excess Usage
will be due and payable upon receipt.
Page 5
(e) If only part of the final
calendar year is included within the Term, the amount of Real
Estate Taxes and Operating Costs payable by the Tenant for such
period will be estimated by the Landlord acting reasonably and
adjusted proportionately on a per diem basis and will be payable
upon demand as soon as such amount has been ascertained by the
Landlord.
(f) The Landlord will use
generally accepted accounting practices, computed on an accrual
basis, consistently applied, in calculating Operating Costs, Excess
Usage and any other elements of Additional Rent.
7.2 Payment of Additional
Rent.
Any Additional Rent payable
by the Tenant under Section 7.1 hereof will be paid as
follows, unless otherwise provided:
(a) During the Term, the
Tenant will pay to the Landlord at the same time as the payment of
the Base Rent, one-twelfth (1/12th) of the amount of such
Additional Rentals estimated by the Landlord in advance, acting
reasonably, to be due from the Tenant for a twelve month period of
time. Such estimate may be adjusted from time to time by the
Landlord, as actual Real Estate Taxes and Operating Costs become
known, and the Tenant will pay installments of Additional Rentals
according to such estimate, as periodically adjusted.
(b) Within ninety
(90) days after the close of each calendar year, or as soon
thereafter as practicable, the Landlord shall deliver to the Tenant
a statement (“ Operating Statement ”) indicating
the Operating Costs for the Building paid or incurred by the
Landlord for the prior calendar year, the Tenant’s share
thereof, and the amount that the Tenant owes, or is to be credited,
for the prior year. Any Operating Statement shall be certified by
Landlord. Unless otherwise contested by the Tenant in accordance
with this paragraph, the Operating Statement shall be final and
binding upon the Landlord and the Tenant. The Tenant shall have the
right, within thirty (30) days of receipt of the Operating
Statement to have an accountant employed or selected by
Tenant’s Accountant (“Tenant’s Accountant”)
review Landlord’s books and records relating to Operating
Costs. Said review shall be conducted at the Landlord’s
office designated on the Office Lease Facing Page during normal
business hours and upon at least 48 hours advance notice. If
Tenant’s Accountant uncovers discrepancies of greater than
five percent (5%) in the aggregate in the calculation of any
Operating Costs reflected in the Operating Statement, the Landlord
shall bear the cost of the audit. Otherwise, the Tenant shall pay
the fees of Tenant’s Accountant and shall accept the
Landlord’s Operating Statement as binding.
(c) If the aggregate amount
of such estimated Additional Rental payments made by the Tenant in
any year of the Term should is less than the Additional Rentals due
for such year of the Term, then the Tenant will pay to the Landlord
as Additional Rent within ten (10) Business Days after demand
the amount of such deficiency.
(d) If the aggregate amount
of such Additional Rental payments made by the Tenant in any year
of the Term is greater than the Additional Rentals due for such
year, then the amount of such excess will be applied by the
Landlord to the next succeeding installment of such Additional Rent
due hereunder; and if there be any such excess for the last year of
the Term, the amount thereof will be refunded by the Landlord to
the Tenant within thirty (30) days after the amount of such
excess becomes known or after the Term, whichever is sooner,
provided that the Tenant is not otherwise in material default under
the terms of this Lease.
(e) [intentionally
omitted]
Page 6
| 8. |
BULBS, TUBES, BALLASTS |
Landlord will have the
exclusive right to make any replacement of electric light bulbs,
tubes and ballasts in the Leased Premises throughout the Term and
any renewal thereof. The Landlord may adopt a system of relamping
and reballasting periodically on a group basis in accordance with
prudent practice.
Tenant will pay as Additional
Rental, on demand, the reasonable cost of any metering which may be
required by the Landlord to measure any Excess Usage.
10.1 Tenant’s use of
electricity in the Leased Premises will be for the operation of
standard lighting, electrical fixtures, desktop or laptop
computers, photocopy machines, fax machines, scanners, printers,
typewriters and other office machines and lamps, as well as agreed
upon voice and data support space and equipment identified as part
of Tenant Improvements, and will not at any time exceed the
capacity of any of the electrical conductors and equipment in or
otherwise serving the Leased Premises.
10.2 In order to ensure that
such capacity is not exceeded and to avert possible adverse effect
upon the Building’s electrical service, the Tenant will not,
without the Landlord’s prior written consent in each
instance, connect any additional fixtures, appliances or equipment
(other than those items identified in Section 10.1) to the
Building’s electric distribution system or make any
alterations or additions to the electric system of the Leased
Premises existing at the commencement of the Term. If the Landlord
grants such consent, the cost of all additional risers and other
equipment required therefor will be paid by Tenant to Landlord
within ten (10) Business Days from receipt of written demand
therefor. Furthermore, Tenant, at Landlord’s option, will pay
within ten (10) days from receipt of written demand therefor,
the cost of any electric current or other energy for the operation
of main frame computer equipment or other equipment requiring more
than is necessary for normal business use as reasonably determined
by the Landlord.
11.1 If the Building members
or elements of the Building used for the purpose of climate control
of the Building, or if the water pipes, drainage pipes, electrical
lighting or other equipment of the Building or the roof or outside
walls of the Building or parking facilities of Landlord become
damaged or are destroyed through the gross negligence or willful
misconduct of the Tenant, its servants, agents, employees or anyone
permitted by any of them to be in the Building, then the cost of
the necessary repairs, replacements or alterations will be borne by
the Tenant who will pay such cost to Landlord within ten
(10) Business Days from receipt of written demand
therefor.
11.2 Tenant will keep the
Leased Premises in as good order, condition and repair as when they
were entered upon, loss by fire or other casualty, unavoidable
accident or ordinary wear and tear excepted. If Tenant fails to
keep the Leased Premises in such good order, condition and repair
as required hereunder to the reasonable satisfaction of Landlord,
Landlord may provide Tenant with written notice describing the
unsatisfactory conditions, if Tenant has failed to commence and
actively pursue appropriate remedial actions reasonably calculated
to cure such conditions within ten (10) Business Days
following receipt of Landlord’s written notice, Landlord may
restore the Leased Premises to such good order and condition and
make such repairs without liability to Tenant for any loss or
damage that may accrue to Tenant’s property or business by
reason thereof, and upon completion thereof, Tenant will pay to
Landlord, the costs of restoring the Leased Premises to such good
order and condition and of the making of such repairs, within ten
(10) days from receipt of written demand therefor.
Page 7
11.3 Tenant will deliver at
the expiration of the Term hereof or sooner upon termination of the
Term, the Leased Premises in the same condition as received, except
for reasonable wear and tear between the last necessary repair,
replacement and restoration made by the Tenant pursuant to its
obligations hereunder, and cause to be removed at Tenant’s
expense furniture and equipment belonging to Tenant, signs,
notices, displays, and the like from the Premises and repair any
damage caused by such removal.
11.4 Tenant will leave the
Leased Premises at the end of each Business Day in a reasonably
tidy condition for the purpose of allowing the performance of the
Landlord’s cleaning services hereinafter
described.
| 12. |
ASSIGNMENT, SUBLETTING, PARTING WITH
POSSESSION. |
12.1 Tenant will not permit
any part of the Leased Premises to be used or occupied by any
persons other than the Tenant, any subtenants permitted under
Section 12.2 and the employees of the Tenant and any such
permitted subtenant, or permit any part of the Leased Premises to
be used or occupied by any licensee or concessionaire, or permit
any persons to be upon the Leased Premises other than the Tenant,
such permitted subtenants, and their respective employees,
customers and others having lawful business with them.
12.2 Tenant will not assign
or sublet or part with the possession of all or part of the Leased
Premises without the prior written consent of Landlord, which
consent will not be unreasonably withheld; provided, however, that
Tenant will submit in writing to Landlord (a) the name and
legal composition of the proposed subtenant or assignee;
(b) the nature of the business proposed to be carried on in
the Leased Premises; (c) the terms and provisions of the
proposed sublease; and (d) such financial and other
information as the Landlord may reasonably request concerning the
proposed subtenant or assignee. Any such consent to any assignment
or subletting will not relieve the Tenant from its obligations for
the payment of all Rent due hereunder and for the full and faithful
observance and performance of the covenants, terms and conditions
herein contained. Consent of the Landlord to an assignment or
subletting will not in any way be construed to relieve the Tenant
from obtaining the consent of the Landlord to any further
assignment or subletting.
12.3 If the Tenant is a
corporation, limited liability company, partnership or other
entity, or if this Lease, with the consent of the Landlord as
aforesaid, is assigned to a such an entity, and if at any time
during the Term hereof, more than fifty percent (50.0%) of the
shares or voting rights are transferred by sale, or assignment,
bequest, inheritance, trust, operation of law or other disposition,
or shares be issued so as to result in a change in the control of
such entity by reason of ownership of greater than ten percent of
the voting shares or otherwise, then and so often as such change of
control will occur the Tenant will notify the Landlord in writing
of such changes and the Landlord will have the right to terminate
this Lease and the Term, at any time after such change of control
by giving the Tenant sixty (60) days prior written notice of
such termination. This Section 12.3 will not apply to the
Tenant if at any time during the Term voting control of the Tenant
is represented by shares listed on a national stock exchange or the
NASDAQ Quotation System.
| 13. |
RULES AND REGULATIONS |
Tenant and its employees and
all persons visiting or doing business with the Tenant in the
Leased Premises will be bound by and will observe the reasonable
Rules and Regulations promulgated from time to time by the Landlord
relating to the Building and its grounds and parking lot of which
notice in writing will be given to the Tenant and all such rules
and regulations will be a default hereunder and Landlord will have
all remedies provided for in this Lease in the event of default by
Tenant. Landlord, however, will not be responsible to Tenant for
nonobservance by any other tenant or person of any such Rules and
Regulations, provided that Landlord has taken commercially
reasonable steps to ensure that all such other tenants and persons
are abiding by the Rules and Regulations. The Rules and Regulations
in effect on the Lease Date are attached as Exhibit C
.
Page 8
| 14. |
USE OF LEASED PREMISES |
14.1 Except as expressly
permitted by prior written consent of the Landlord, the Leased
Premises will not be used other than for general business office
purposes. All use of the Leased Premises will comply with the terms
of this Lease and all applicable laws, ordinances, regulations or
other governmental ordinances from time to time in
existence.
14.2 Tenant agrees that it
will not keep, use, sell or offer for sale in or upon the Leased
Premises any article which may be prohibited by Landlord’s
standard fire and extended coverage insurance policy in force from
time to time covering the Building. In the event the Tenant’s
occupancy or conduct of business in, or on the Leased Premises,
whether or not the Landlord has consented to the same, results in
any increase in premiums for such insurance carried from time to
time by the Landlord with respect to the Building, the Tenant will
pay any such increase in premiums as Additional Rental within ten
(10) days after bills for such additional premiums will be
rendered by the Landlord. In determining whether increased premiums
are a result of the Tenant’s use or occupancy of the Leased
Premises, a schedule issued by the organization computing the
insurance rate, will be conclusive evidence of the several items
and charges which make up such a rate. The Tenant will promptly
comply with all reasonable requirements of the insurance authority
or of any insurer now or hereafter in effect relating to the Leased
Premises.
(a) Tenant will, during its
occupancy of the Leased Premises and during the Term hereof, at its
sole cost and expense, obtain, maintain and keep in full force and
effect, and with the Tenant, the Landlord and the mortgagees of the
Landlord named as beneficiaries therein as their respective
interests may appear, the following types and kinds of insurance,
in the amounts specified below or such other amounts as Landlord
may from time to time reasonably request and which are customary
for buildings similar to the Building in the Denver
area:
(i) Upon property of every
description and kind owned by the Tenant and located in the
Building or for which the Tenant is legally liable or installed by
or on behalf of the Tenant including, without limitation,
furniture, fittings, installations, alterations, additions,
partitions, fixtures and anything in the nature of a leasehold
improvement insuring against loss to the extent of the full
replacement value of that which is being covered, with coverage
including sprinkler leakage (where applicable); and, in the event
that there will be a dispute as to the amount which comprises full
replacement value, the reasonable determination of the Landlord or
the mortgagees of the Landlord will be conclusive.
(ii) Property damage and
public liability insurance (including personal liability,
contractual liability, tenants’ legal liability for the full
replacement costs of the Leased Premises, and owners’ and
contractors’ protective insurance coverage with respect to
the Leased Premises and the Tenant’s use of any part of the
Building) which coverage will include the business operations
conducted by the Tenant and any other persons on the Leased
Premises. Such policies will be written on a comprehensive basis
with a single occurrence limit of not less than
$1,000,000.
(b) All property damage
policies written on behalf of the Tenant will contain a waiver of
any subrogation rights which the Tenant’s insurers may have
against the Landlord and against those for whom the Landlord, in
law, is responsible whether any such damage is caused by the act,
omission or fault of the Landlord or by those for whom the
Landlord, in law, is responsible.
(c) All policies will be
taken out with insurers reasonably acceptable to the Landlord and
in form reasonably satisfactory from time to time to the Landlord.
Insurance companies
Page 9
authorized to do business in
the State of Colorado with a rating of A-XI or better as rated in
the most recent edition of Best’s Insurance Reports will be
deemed acceptable to Landlord. The Tenant agrees that certificates
of insurance, or, if required by the Landlord or the mortgagees of
the Landlord, certified copies of each such insurance policies will
be delivered to the Landlord as soon as practicable after the
placing of the required insurance, but in no event later than ten
(10) days prior to Tenant taking possession of all or any part
of the Leased Premises. All policies will contain an undertaking by
the insurers to notify the Landlord and the mortgagees of the
Landlord in writing not less than thirty (30) days prior to
any material change, cancellation, or other termination
thereof.
(d) [intentionally
omitted]
(e) Tenant agrees that if
Tenant does not take out and maintain the insurance specified
above, Landlord may (but will not be required to) procure said
insurance on Tenant’s behalf and charge Tenant the premium
together with a fifteen percent handling charge, payable upon
demand as Additional Rent.
| 16. |
CANCELLATION OF INSURANCE |
If any insurance policy upon
the Building or any part thereof will be cancelled or cancellation
will be threatened or the coverage thereunder reduced or threatened
to be reduced, in any way by reason of the use or occupation of the
Leased Premises or any part thereof by the Tenant or by any
assignee or subtenant of the Tenant or by anyone permitted by the
Tenant to be upon the Leased Premises and, if the Tenant fails to
remedy the condition giving rise to cancellation, threatened
cancellation, or reduction of coverage, within twenty-four (24)
hours after notice, the Landlord may, at its option, enter upon the
Leased Premises and attempt to remedy such condition and the Tenant
will pay the cost thereof to landlord within ten (10) days from
receipt of written demand therefor. Such entry will not be deemed
to be re-entry under Section 38.1(b) hereof and the Landlord will
not be liable for any damage or injury caused to any property of
the Tenant or of others located on the Leased Premises as a result
of such entry. In the event that the Landlord will be unable to
remedy such condition, then Landlord will have all of the remedies
provided for in the Lease in the event of a default by Tenant.
Notwithstanding the foregoing provisions of this Section 16, if
Tenant fails to remedy as aforesaid, Tenant will be in default of
its obligation hereunder and Landlord will have no obligation to
attempt to remedy.
Tenant will comply with all
provisions of law, including without limitation, federal, state,
county and city laws, ordinances and regulations and any other
governmental, quasi-governmental or municipal regulations which
relate to the partitioning, equipment operation, alteration,
occupancy and use of the Leased Premises, including but not limited
to the Americans with Disabilities Act and hazardous materials
laws, and to the making of any repairs, replacements, alterations,
additions, changes, substitutions or improvements of or to the
Leased Premises. Moreover, the Tenant will comply with all police,
fire, and sanitary regulations imposed by any federal, state,
county or municipal authorities and will observe and obey all
governmental and municipal regulations governing the conduct of any
business conducted in the Leased Premises.
| 18. |
ENVIRONMENTAL MATTERS. |
(a) Tenant agrees that it
will comply with all local, state and federal laws, rules and
regulations dealing with the manufacture, generation, use, storage,
treatment, transportation, disposal, release or removal of
hazardous substances, materials, pollutants, contaminants, or
wastes, including but not limited to the Comprehensive
Environmental Response, Compensation and Liability Act (“
CERCLA ”), 42 U.S.C. 9601 et seq., the Federal
Water Pollution Control Act, 33 U.S.C. 1231, et seq., the Emergency
Planning and Community Right to Know Act, 33 U.S.C., 11000 et seq.,
the Resource Conservation and Recovery Act (“
RCRA ”), 42 U.S.C. 6901 et seq., the Clean Air
Act, 42 U.S.C. 7401 et seq., as such laws may be amended or
modified, whether
Page 10
such laws are presently in
existence or promulgated during the Term, and all rules and
regulations promulgated hereunder (“ Environmental
Laws ”). Without limiting the foregoing, Tenant
agrees that it will (i) give written notice to Landlord at
least five (5) Business Days in advance of any manufacture,
generation, use, storage, treatment, transportation, disposal,
release or removal of Hazardous Substances from or on the Leased
Premises, (ii) give written notice to Landlord within two
(2) Business Days after receipt of any notice received by
Tenant of violation, claim, suit or investigation relating to
Hazardous Substances, (iii) immediately notify Landlord of any
Hazardous Substance spill, release or discharge at or affecting the
Leased Premises and promptly clean up any such spill, release or
discharge in compliance with all applicable Environmental Laws,
(iv) not use or employ the property, facilities, equipment or
services of the Building or any complex of which the Building is a
part to manufacture, generate use, transport, store, treat or
dispose of or release Hazardous Substances, whether or not they
were generated or produced on the Leased Premises, and
(v) defend, indemnify and hold harmless Landlord against any
and all claims, damage, liability and costs (including reasonable
attorney and expert fees and cleanup costs) which Landlord may
suffer, incur or pay resulting from or arising out of any
manufacture, generation, use, storage, treatment, transportation,
disposal, release or threat of release of Hazardous Substances from
or on the Leased Premises or the Building or any complex of which
the Building is a part or resulting from Tenant’s actions or
actions of Tenant’s agents, employees, guests or invitees.
“ Hazardous Substances ” means and
includes all toxic or hazardous substances, materials, chemicals,
contaminants, pollutants, and wastes of whatever kind or nature,
regulated under, defined in, or listed in any Environmental Laws or
requiring special handling under applicable laws, including but not
limited to medical waste materials. Hazardous Substances include,
without limitation, asbestos, PCBs, CFCs, petroleum and lead-based
paint.
(b) If Tenant fails to fully
comply with the terms of this Section, Landlord may, following the
expiration of any applicable grace or cure period, at its option,
perform any or all of Tenant’s obligations thereunder and all
costs and expenses incurred by Landlord (including reasonable
attorney fees and expert fees and cleanup costs) in connection
therewith will be deemed to be Additional Rent payable by Tenant on
demand therefor.
(c) [ Intentionally
omitted ]
(d) The terms of this
Section 18 will survive the expiration or termination of this
Lease.
Tenant will not commit,
suffer or permit any waste or damage or disfiguration or injury to
the Leased Premises or common areas in the Building or the fixtures
and equipment located therein or thereon, or permit or suffer any
overloading of the floors thereof and will not place therein any
safe, heavy business machinery, main frame computers, data
processing machines, or other heavy things without first obtaining
the consent in writing of the Landlord and, if requested, by
Landlord’s superintending architect, and not use or permit to
be used any part of the Leased Premises for any dangerous, noxious
or offensive trade or business, and will not cause or permit any
nuisance, noise or action in, at or on the Leased
Premises.
Upon forty-eight (48) hours
advance written notice (except in the case of a situation that
Landlord reasonably believes to constitute an emergency situation
requiring immediate access to the Leased Premises), Tenant agrees
to and will permit the Landlord, its servants or agents to enter
upon the Leased Premises at any time and from time to time for the
purpose of inspecting and of making repairs, alterations or
improvements to the Leased Premises or to the Building, or for the
purpose of having access to the underfloor or ceiling ducts, or to
the access panels to mechanical shafts (which the Tenant agrees not
to obstruct), and the Tenant will not be entitled to compensation
for any inconvenience,
Page 11
nuisance or discomfort occasioned
thereby. The Landlord will also have the right of entry to remedy
any condition which Landlord, in its reasonable discretion,
believes may cause cancellation or reduction of any insurance
maintained by Landlord on the Building. The Landlord will have the
right to enter the Leased Premises in order to check, calibrate,
adjust and balance controls and other parts of the heating,
ventilating and climate control system at any time. The Landlord
shall proceed hereunder in such manner reasonably calculated to
minimize interference with the Tenant’s use and enjoyment of
the Leased Premises.
For the purpose of this
Section and for all other purposes set forth in this Lease,
Landlord will have and retain a key with which to unlock all doors
in, upon and about the Leased Premises and Landlord will have the
right to use any and all means which Landlord may deem proper to
open said doors in an emergency, in order to obtain entry to the
Leased Premises.
| 21. |
INDEMNIFICATION OF LANDLORD |
Tenant will indemnify the
Landlord and save it harmless from and against any and all loss
(including loss of Rent payable by the Tenant or other tenants in
the event of loss either directly or indirectly caused by
commission or omission of Tenant), claims, actions, damages,
liability and expenses in connection with loss of life, personal
injury or damage to property arising from any occurrence in, upon
or at the Leased Premises or any part thereof, or occasioned wholly
or in part by the gross negligence or willful misconduct of the
Tenant, its agents, contractors, employees, servants, licensees, or
concessionaires or invitees or by anyone permitted to be on the
Leased Premises by the Tenant. In case the Landlord will, without
fault on its part, be made a part to any litigation commenced by or
against the Tenant, then the Tenant will protect and hold the
Landlord harmless and will pay all costs, expenses and reasonable
attorneys’ fees incurred or paid by the Landlord in
connection with such litigation.
Tenant will permit the
Landlord or its agents to exhibit and show the Leased Premises to
prospective tenants during normal Business Hours of the last six
(6) months of the Term or any renewal thereof.
23.1 Tenant will not make,
install or erect in or to the Leased Premises any installations,
alterations, additions or partitions without submitting drawings
and specifications therefor to the Landlord and obtaining the
Landlord’s prior written consent in each instance.
Furthermore, the Tenant will obtain the Landlord’s prior
written consent to any change or changes in such drawings or
specifications submitted as aforesaid, Tenant will pay the
reasonable cost to the Landlord of having its architects review
such plans and changes thereto prior to proceeding with any work
based on such drawings or specifications. All such work will be
performed free and clear of all mechanic’s liens and Landlord
will have no liability for the performance of such work,
notwithstanding its consent to any plans and specifications.
Without limiting the generality of the foregoing any work performed
by or for the Tenant will be performed by competent workmen whose
labor union affiliations are not incompatible with those of any
workmen who may be employed in the Building by the Landlord, its
contractors or subcontractors. The Tenant will submit to the
Landlord’s supervision over construction, will provide
Landlord upon request with financial assurances prior to the
commencement of alterations, and promptly pay to the
Landlord’s or the Tenant’s subcontractors as the case
may be, when due, the cost of all such work and of all materials,
labor and services involved therein and of all decoration and all
changes in the Building, its equipment or services necessitated
thereby. The Tenant covenants that the Tenant will not suffer or
permit during the Term hereof any mechanic’s or other liens
for work, labor, services or materials ordered by the Tenant or for
the cost of which the Tenant may be in any way obligated, to attach
to the Leased Premises or to the Building and that whenever and so
often as any such liens will attach or claims therefor will be
filed, the Tenant will within
Page 12
twenty (20) days after
the Tenant has notice of the claim for lien procure the discharge
thereof by payment or by giving security or in such other manner as
is or may be required or permitted by law or which will otherwise
satisfy Landlord. The Tenant will, at its own cost and expense,
take out or cause to be taken out any additional insurance or bonds
reasonably required by the Landlord to protect the Landlord’s
and the Tenant’s interest during the period of
alteration.
23.2 At least five
(5) days prior to the commencement of any work permitted to be
done by persons requested by the Tenant on the Leased Premises, the
Tenant will notify the Landlord of the proposed work and the names
and addresses of the persons supplying labor and materials for the
proposed work so that the Landlord may avail itself of the
provisions of statutes such as §38-22-105(2) of the Colorado
Revised Statutes as they exist on the Lease Date or are
subsequently amended. During any such work on the Leased Premises,
the Landlord or its representatives will have the right to go upon
and inspect the Leased Premises at all reasonable times, and will
have the right to post and keep posted thereon notices such as
those provided for by §38-22-105(2) C.R.S. or to take any
further action which the Landlord may deem to be proper for the
protection of the Landlord’s interest in the Leased
Premises.
23.3 Landlord will have the
right to use and make changes or additions to the Building, the
Common Areas and the Leased Premises including but not limited to
the pipes, wires, conduits and ducts in the Leased Premises where
necessary to serve other premises in the Building but not in any
way so as to interfere materially with the use and enjoyment of the
Leased Premises and the Landlord will repair any damage to the
Leased Premises so caused. The Tenant will not unduly obstruct such
pipes, conduits and ducts in the Leased Premises so as to prevent
reasonable access thereto.
Tenant will pay on demand the
cost of replacement of any glass broken on the Leased Premises
including outside windows and doors of the perimeter of the Leased
Premises (including perimeter windows in the exterior walls) during
the continuance of this Lease, unless the glass is broken by the
Landlord, its servants, employees or agents acting on its behalf.
Said replacement will be with glass identical to the glass
originally installed in the Building, or if no longer available,
with as good specification, quality and size reasonably acceptable
to the Landlord.
| 25. |
SIGNS, DRAPES, SHUTTERS |
(a) Tenant will not place or
permit to be placed in or upon the Leased Premises, where visible
from outside the Building, or outside the Leased Premises any
signs, notices, drapes, shutters, blinds or displays of any type
without the prior written consent of Landlord.
(b) Landlord reserves the
right in Landlord’s sole discretion to place and locate on
any roof or exterior of the Building such signs, notices, displays
and similar items as Landlord deems appropriate in the proper
operation of the Building.
At Landlord’s option,
this Lease will be subject to and subordinate to all mortgages
(including any deed of trust and mortgage securing bonds and all
indentures supplemental thereto) and to all underlying, superior,
ground or land leases which may now or hereafter encumber the Real
property of which the Leased Premises are a part, and all renewals,
modifications, consolidations, replacements and extensions thereof
of such mortgages and leases which may now or hereafter affect the
Leased Premises or any part thereof. The Tenant hereby constitutes
the Landlord the agent or attorney of the Tenant coupled with an
interest for the purpose of executing any subordination,
acknowledgment or agreement required by any mortgagee, lender or
lessor of Landlord.
Page 13
Tenant agrees that it will at
any time and from time to time upon not less than ten (10) Business
Days’ prior notice execute and deliver to the Landlord a
statement in writing certifying that this Lease in unmodified and
in full force and effect (or, if modified, stating the
modifications and that the same is in full force and effect as
modified), the amount of the annual Rent then being paid hereunder,
the dates to which the Rent, by installment or otherwise, and other
charges hereunder have been paid, and whether or not there is any
existing default on the part of the Landlord of which the Tenant
has knowledge and such other factual information reasonably
required by Landlord or its mortgagees.
| 28. |
ACCEPTANCE OF PREMISES |
28.1 Taking possession of the
Leased Premises by Tenant will be conclusive evidence as against
Tenant that the Leased Premises were in good and satisfactory
condition when possession was taken, and acknowledgment of
completion in full accordance with the terms of this
Lease.
28.2 Tenant agrees that there
is no promise, representation or undertaking by or binding upon the
Landlord with respect to any alteration, remodeling or redecorating
of or installation of equipment or fixtures in the Leased Premises,
except such, if any, as are expressly set forth in this Lease, or
the typical plan schedule attached hereto.
Landlord covenants and agrees
with Tenant that upon Tenant paying Rent, Additional Rent and other
monetary sums due under the Lease, and performing its covenants and
conditions under the Lease, Tenant will and may peaceably and
quietly have, hold and enjoy the Leased Premises for the Term,
subject, however, to the terms of the Lease and of any of the
ground leases, mortgages or deeds of trust referred to in Section
26.
30.1 Climate Control:
Landlord will provide climate control to the Leased Premises during
Normal Business Hours to maintain a temperature adequate for
comfortable occupancy, except during the making of repairs,
alterations or improvements Landlord shall take commercially
reasonable steps to minimize the impact of any such repairs,
alterations, or improvements during Normal Business Hours and
provided that the Landlord will have no responsibility or liability
for failure to supply climate control service when stopped as
aforesaid or when prevented from doing so by strikes, governmental
action or any cause beyond the Landlord’s reasonable control,
including failure of any utility company to provide the Building
with appropriate utility service. The Tenant acknowledges that the
Landlord has installed in the Building a system for the purpose of
climate control, which system is designed to heat and cool during
normal occupancy of the Leased Premises as general offices based
upon the window shading being fully closed in those offices having
exterior windows exposed to the sun and without regard to the
Tenant’s specific use thereof or the installation of any
computers or data processing equipment. Any use the Leased Premises
not in accordance with the design standards or arrangement of
partitioning which interferes with the normal operation of such
system may require changes or alterations in the system or ducts
through which the same operates. Any changes or alterations so
occasioned, as such changes can be accommodated by the
Landlord’s equipment, will be made by the Tenant at its cost
and expense but only with the prior written consent of the Landlord
first had and obtained, and in accordance with drawings and
specifications and by a contractor first approved in writing by the
Landlord, at Tenant’s cost and expense. If installation of
partitions, equipment or fixtures by the Tenant necessitates the
re-balancing of the climate control equipment in the Leased
Premises, the same will be performed by the Landlord at
Tenant’s expense as Additional Rental payable on
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