Colorado-Denver-303 East 17th Avenue Lease - 1700 Grant Associates Ltd. and Accelr8 Technology Corp.
This Lease is made and entered into as of the 13th; day of March, 192 between:
1700 Grant Associates, Ltd., a Colorado limited partnership, ("Landlord") and
Accelr8 Technology Corporation, a Colorado corporation ("Tenant")
I. PREMISES; USE
A. Landlord hereby leases to Tenant approximately 3,796.22 rentable square
feet of floor space on the first floor(s) of the building located at 303
East 17th Avenue, Denver, Colorado 80203. (the "Building"), to be known as
Suite No. 108 (the "Premises"), on the terms and conditions set forth
herein The Premises are more particularly described on Exhibit A attached
hereto
B. Tenant shall not use or permit the Premises or any part thereof to be used
for any purpose or purposes other than general office purposes; Tenant
agrees that no use shall be made or permitted to be made of the Premises,
or acts done, which will increase the rate of insurance upon the Building
or cause a cancellation of any insurance policy covering the Building, or
any part thereof, nor shall Tenant sell, or permit to be kept, used, or
sold in or about the Premises, any article which may be prohibited by the
standard form of insurance policies. Tenant shall not commit or cause to be
committed, any public or private nuisance upon the Premises, or other act
or thing which may disturb the quiet enjoyment of any other tenant in the
Building nor, without limiting the generality of the foregoing, shall
Tenant allow the Premises to be used for any improper, immoral, unlawful or
objectionable purpose
C. Tenant shall at its sole cost and expense comply with all laws, statutes,
ordinances and governmental rules regulations or requirements now in force
or which may hereafter be in force and with the requirements of any board
of fire underwriters or other similar body now or hereafter constituted
relating to or affecting the condition, use or occupancy of the Premises,
excluding structural changes not caused by Tenant's improvements or the
nature of Tenant's occupancy of the Premises
D. Except in connection with normal interior decorating of the Premises,
Tenant shall not place any holes in any part of the Premises or place any
exterior or interior signs or interior drapes, blinds, or similar items
visible from the outside of the Premises without the prior written approval
of Landlord
E. Tenant shall not knowingly permit any employees, agents or guests of Tenant
to violate any covenant or obligation of Tenant hereunder.
F. Except as may be permitted in Section VD below, Tenant agrees that it will
not bring in or permit the placing within the Premises of any machine or
property heavier than customarily used in connection with general office
purposes
II. TERM
A. This Lease shall be for a term of three (3) year(s) and four (4) month(s),
beginning on April 1, 1992 (the "Projected Commencement Date"), and ending
on July 31, 1995, unless sooner terminated as herein provided
B If Landlord, for any reason whatsoever, cannot deliver possession of the
Premises to Tenant on the Projected Commencement Date, this Lease shall not
be void or voidable nor shall Landlord be liable to Tenant for any loss or
damage resulting therefrom, but in that event the term of the Lease shall
be amended to commence on the dale when the Landlord can deliver possession
and the expiration date shall be extended accordingly (unless possession
cannot be delivered within 120 days after the Projected Commencement Date
for reasons other than Tenant's failure to comply with its obligations
under Exhibit C attached hereto, in which case Tenant shall have the right
to terminate this Lease upon written notice to Landlord without penalty to
either party) 11 permission is given to Tenant to occupy the Premises prior
to the Projected Commencement Date, such occupancy shall be subject to all
of the provisions of this Lease. If the term hereof commences on a date
other than the Projected Commencement Date pursuant to the provisions set
forth herein the parties agree to execute and acknowledge a written
statement setting forth the dates of the commencement and termination of
the term of this Lease, but this Lease shall not be affected in any manner
should either party fail or refuse to execute such statement.
C. It the term begins or ends other than on the first day of a month, Tenant
shall pay proportionate base rent and additional rent at the same rates set
forth herein (also in advance) for such partial month(s) and All other
terms and conditions of this Lease shall be in force and elect during such
partial month(s). By taking possession of the Premises, Tenant shall be
deemed to have agreed that the Premises are in a satisfactory condition
(except for detects not discoverable upon reasonable inspection which are
set forth in a written communication received by Landlord within seven days
alter Tenant's occupancy of the Premises), and Tenant shall provide
Landlord, upon request, with a written acknowledgment of acceptance.
III. RENT
B.* Tenant also agrees to pay to Landlord, as additional rent without offset or
reduction, .1.4297** percent ("Tenant's pro rata share") of the "Shared
Expenses" (as hereinafter defined) during the term of this Lease. From time
to time, Landlord shall reasonably estimate the amount of Shared Expenses,
and Tenant shall pay additional rent, in advance, based upon such estimate.
For example, if Landlord estimates that Shared Expenses for a given six
month period will be S10,000, one-sixth of Tenant's pro rata share of such
amount shall be added to the monthly rent payable under Section A of this
Article. If the actual Shared Expenses exceed Landlord's estimate for
a
period, Tenant shall pay to Landlord Tenant's pro rata share of such excess
within ten days of notice of such excess. If the actual Shared Expenses are
less than Landlord's estimate for a period, Tenant's pro rata share of the
difference shall be applied to the next amounts owing by Tenant to Landlord
pursuant to this Section B. If the term of this Lease ends (other than due
to default by Tenant hereunder) and Tenant has complied with all the
provisions hereof, Tenant shall be entitled to a prompt refund of any
excess amounts which Tenant has paid to Landlord pursuant to this Section
B.
C. For the purposes hereof, the term "Building Expenses" shall mean all
expenses pertaining to the Building, the land underneath and surrounding
the Building as described in Exhibit A attached hereto, excluding any
parking area and / or parking structure located thereon (collectively, the
"Building Area"), including, but not limited to. the following :
* Effective April 1, 1993 ** 3,796.22 rentable square feet divided by
265,520.62 equals 1.42973%
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1. all general and special real estate or ad valorem taxes (including.
but not limited to, any new or different tax imposed in lieu of or in
addition to existing taxes) or assessments levied against the Building
Area by any governmental or quasi-governmental authority or by any
applicable association of property owners;
2. the cost of all utilities (including, but not limited to, water,
sewer, electricity, natural gas and any other energy used for heating,
cooling or other purposes);
3. building supplies, janitorial services, trash removal, maintenance,
repair and replacements of the Building Area (including, but not
limited to, elevators and heating, ventilating and air conditioning
equipment and fire monitoring and control systems);
4. landscaping maintenance and replacement;
5. resurfacing and restriping parking surfaces;
6. insurance (including, but not limited to, fire and extended coverage,
public liability and business interruption insurance), but Tenant
shall have no interest in such insurance or the proceeds thereof,
7. labor costs incurred in the operation or maintenance of the Building
Area, including, but not limited to, wages and other payments,
Workmen's Compensation and disability insurance, payroll taxes and
fringe benefits;
8. security;
9. reasonable management fees, legal, accounting, inspection and
consultation fees applicable to the Building Area: and
10. any costs incurred by Landlord for any capital improvements or
structural repairs to the Building Area to effect labor savings or
otherwise reduce Building Expenses, or required by any change
occurring after the issuance of the Certificate of Occupancy for the
Building in the laws, ordinances. rules, regulations or orders of any
governmental or quasi-governmental authority having jurisdiction over
the Building Area, which costs shall be amortized over the useful life
of the applicable capital improvement or structural repair.
If less than 100% of the net rentable area of the Building is occupied by
tennants during any period, the Building Expense for such period shall, for
the purposes of this Article, be deemed to be equal to Landlord's estimate
of what the Building Expenses for such period would have been had 100% of
the net rentable area of the Building been occupied during such period.
D. For the purposes hereof, the term "Landlord's Share" shall mean an amount
equal to the total of actual Building expenses for calendar year 1992, to
be proportionately adjusted it the applicable period is less than or
greater than twelve months.
E. For the purposes hereof, the "Shared Expenses" for a period shall be equal
to the excess of the Building Expenses for such period over the Landlord's
Share for such period. It the Landlord's Share for such period exceeds the
Building Expense for such period, the Shared Expenses for such period shall
be deemed to be zero, and no additional rent shall be payable for such
period pursuant to Section B of this Article; however, in such event,
Tenant shall not be entitled to any reduction in the Monthly Base Rent set
forth in Section A of this Article.
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F. All reasonable determinations by Landlord pursuant to this Article shall be
presumed to be correct. Until tenant is advised of the adjustment in the
rent, it any, pursuant to the provisions of this Article, Tenant's monthly
rental shall continue to be paid at the current rate (including all prior
adjustments pursuant to Section B of this Article). No failure by Landlord
to require the payment of additional rent by Tenant pursuant to Section
B
of the Article for any period shall constitute a waiver of Landlord's right
to collect such additional rent for such period or for any subsequent
period.
G. If any installment of rent due hereunder is not paid by Tenant on or before
twelve o'clock noon on the fifth business day following the day on which
such installment was due, Tenant shall be required to pay a late charge of
ten percent of such delinquent installment. Any such late charge shall be
due and payable immediately.
H. Unless Landlord notifies Tenant to the contrary, all amounts payable
hereunder shall be payable to Landlord at Landlord's address set forth in
Article XVIII below.
I. Upon reasonable notice to Landlord, Tenant shall have the right to review
the documentation relating to the computation of additional rent pursuant
to this Article.
J. All Building Expenses shall be computed on the accrual basis. In computing
Building Expenses, (i) no cost or expense may be counted more than once,
(ii) any expenses which are paid by the proceeds of insurance shall be
excluded, and (iii) any expenses which are separately metered or billed
directly to and separately paid by any tenant shall be excluded
K. Landlord shall provide Tenant with reasonably detailed statements showing
the computation of Tenant's share of the Shared Expenses not less
frequently than once per year. Tenant shall have the right to cause an
audit to be made of such computation, at Tenant's expense. Any errors in
such computation shall be promptly corrected.
L. Notwithstanding anything in this Article to the contrary, Landlord shall
have the right to cause certain categories of utility expenses (e g,
electricity and natural gas) which benefit only a portion (the "Separate
Portion") of the Building to be separately metered or allocated and the
costs thereof (the "Separate Costs") to be payable by the tenant(s) of the
Separate Portion, in which case such tenant(s) would not pay any portion of
such categories of expenses attributable to the remainder (the "Office
Portion") of the Building. If Landlord exercises such right and so notifies
Tenant, for the purpose of Section B of this Article:
1. "Building Expenses" shall be deemed not to include the amount of the
Separate Costs; and
2. "Building Expenses" shall be deemed to include the cost of such
categories of expenses attributable to the Office Portion multiplied
by the ratio of (x) the total number of rentable square feet in the
Building, to (y) the total number of rentable square feet in the
Office Portion.
IV. SECURITY DEPOSIT
Tenant has deposited with Landlord the sum of _____n/a________ dollars
($ n/a ) as security for the full and faithful performance of every provision of
this Lease to be performed by Tenant. If Tenant defaults with respect to any
provision of this Lease, including but not limited to the provisions relating to
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the payment of rent, Landlord may use, apply or retain all or any part of this
security deposit for the payment of any rent or any other sum in default. or for
the payment of any other amount which Landlord may spend or become obligated to
spend by reason of Tenant's default or to compensate Landlord for any other loss
or damage which Landlord may suffer by reason of Tenant's default If any portion
of said deposit is so used or applied, Tenant shall, within five days after
written demand therefor is made, deposit cash with Landlord in an amount
sufficient to restore the security deposit to its original amount. Landlord
shall not be required to keep this security deposit separate from its general
funds and Tenant shall not be entitled to interest on such deposit. If Tenant
shall fully and faithfully perform every provision of this Lease to be performed
by it, the security deposit or any balance thereof shall be returned to Tenant
after the expiration of the lease term and upon Tenant's vacation of the
Premises. Landlord shall deliver the funds deposited herein by Tenant to the
purchaser of the Building in the event the Building is sold (or give such
purchaser a credit against the purchase price in the amount of such deposit),
and thereupon, Landlord shall be discharged from further liability with respect
to such deposit.
V. LANDLORD'S SERVICES
A. Landlord shall maintain and repair the Building Area in a good and
workmanlike manner similar to other first class office buildings located in
the metropolitan area of Denver, Colorado, and shall furnish the following
services to the Premises (the cost of which shall be included within
Building Expenses):
1. air conditioning and heat from 7:00 a.m. to 6 00 p.m. on weekdays and
from 8:00 a.m. to 1:00 p.m. on Saturdays, holidays excluded;
2. elevator service (automatic) and Building security;
3. janitorial service five days per week, holidays excluded (provided,
however, if Tenant's floor covering or other improvements are other
than building standard, Tenant shall pay the additional cleaning costs
attributable thereto as additional rent upon presentation of statement
therefor by Landlord); and
4. hot and cold water (to each floor in the Building) and electric
current for lighting the Premises and for ordinary office appliances
and machines only.
Landlord shall not be liable for damages nor shall any rent be abated for
failure to furnish, or delay in furnishing, any such service which is
occasioned by needed repairs, renewals or improvements, or by any strike or
labor controversy, or by any act or default of Tenant or due to the
inability of Landlord to obtain fuel or power from the utility company
supplying same, or for any cause beyond the reasonable control of Landlord,
unless such delay or service interruption continues for a period in excess
of thirty consecutive days and such delay or interruption renders the
Premises or any portion thereof untenantable for Tenant's normal business
operations, in which case the rent shall be abated in proportion to the
unusable portion of the Premises for any such excess. Landlord agrees to
use its best efforts to cause utility companies to continuously supply gas,
electricity, water and other necessary utilities to the Premises.
B. If heat generating machines or equipment (including, but not limited to,
telephone equipment) are used by Tenant in the Premises which affect the
temperature otherwise maintained by the air conditioning system, Landlord
reserves the right if requested by Tenant to install supplementary air
conditioning units in the Premises and the cost thereof, including the cost
of installation, and the cost of operation and maintenance thereof, shall
be paid by Tenant to Landlord upon demand by Landlord.
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C. Tenant will not without the prior written consent of Landlord use any
apparatus or device in the Premises which will in any way increase the
amount of electricity or water usually furnished or supplied for use of the
Premises as general office space. Tenant shall not connect with any
electric current, except through existing electrical outlets in the
Premises, or to any water pipes, any apparatus or device, for the purposes
of using electric current or water If Tenant shall require water or
electric current in excess of that usually furnished or supplied for use of
the Premises as general office space, Tenant must first procure the consent
of Landlord to the use thereof, and Landlord may cause a water meter or
electric current meter to be installed in the premises, so as to measure
the amount of water and electric current consumed for any such other use
The cost of any such meter and of installation, maintenance and repair
thereof shall be paid for by Tenant and Tenant agrees to pay to Landlord as
additional rent hereunder promptly upon demand therefor by Landlord for all
such water and electrical current consumed, as shown by said meters at the
rates charged for such services by the local public authority, or the local
public utility, as the case may be, furnishing the same, plus any
additional expense incurred in keeping account of the water and electric
current so consumed.
D. Notwithstanding anything contained in this Lease to the contrary, if
Landlord consents, Tenant may maintain and operate data processing
equipment on the Premises All additional costs in connection therewith
(including, but not limited to, additional support flooring, insulation,
electrical outlets and temperature maintenance facilities) shall be borne
by Tenant. In addition, the utility services utilized by or for such
equipment shall be separately metered and the cost of such utility services
with metering shall be borne by Tenant
E. At Tenant's request and with Landlord's approval, Landlord shall furnish
the services described in Section A of this Article at times other than
specified in Section A, provided that Tenant shall pay the entire cost
thereof as reasonably determined by Landlord as additional rental,
notwithstanding the fact that such services may also benefit portions of
the Building other than the Premises.
VI. ASSIGNMENT AND SUBLETTING
Tenant shall not permit any part of the Premises to be used or occupied by
any persons other than Tenant, and the employees of Tenant, nor permit any part
of the Premises to be used or occupied by any licensee or concessionaire, or
permit any persons to be upon the Premises other than Tenant, and its employees,
customers and others having lawful business with Tenant. Tenant shall not assign
this Lease nor sublet all or part of the Premises without the prior written
consent of Landlord, which consent shall not be unreasonably withheld; provided,
however, such consent to any assignment or subletting shall not relieve Tenant
from its obligations as primary obligor (and not as surety or guarantor) for the
payment of all amounts due hereunder and for the full and faithful observance
and performance of the covenants, terms and conditions herein contained.
Notwithstanding the foregoing, Landlord shall be entitled to arbitrarily
withhold consent to a proposed assignment or subletting if Landlord exercises
its right to terminate this Lease as to the entire assignment of this Lease or
to a subletting of the whole or any part of the Premises, Tenant must submit to
Landlord the terms thereof, the name of the proposed assignee or subtenant, such
information as to the nature of its business, financial responsibility and
strength as Landlord may reasonably require, and the proposed effective date
(the "Effective Date") of the proposed assignment or subletting (which Effective
Date shall be neither less than 60 days nor more than 120 days following the
date of Tenant's submission of such information). Upon receipt of such request
and information from Tenant, Landlord shall have the right, exercisable by
notice in writing within fourteen days after such receipt, to terminate this
Lease if the request is to assign this Lease or to sublet all of the Premises
or, if the request is to sublet a portion of the Premises only, to terminate
this Lease with respect to such portion, in each case as of the Effective Date.
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Such right to terminate shall be for any reason whatsoever in the sole
discretion of Landlord, including but not limited to the right to retain any and
all profits of such assignment or sublease. If Landlord shall exercise such
termination right, Tenant shall surrender possession of the entire Premises or
the portion which is the subject of the right, as the case may be, on the
Effective Date in accordance with the provisions of this Lease relating to
surrender of the Premises at the expiration of the Term of this Lease shall be
terminated as to a portion of the Premises only, the rent payable by Tenant
under Article III of this Lease shall be abated proportionately, commencing of
the Effective Date, based upon the percentage of the Premises as to which this
Lease has been terminated.
VII. ESTOPPEL CERTIFICATE
Within ten days of notice from Landlord, Tenant shall execute, acknowledge
and deliver to Landlord an accurate statement (on the form attached hereto as
Exhibit D) certifying that this Lease is unmodified and in full force and effect
(or, if modified, stating the nature of such modification and certifying that
this Lease, as so modified, is in full force and effect) and the dates to which
rental and other charges are paid in advance, if any, and acknowledging that
there are not, to Tenant's knowledge, any uncured defaults on the part of
Landlord hereunder. or specifying such defaults if any are claimed. At
Landlord's option, such form may contain other certifications relating to this
Lease. It is expressly understood and agreed that any such statement may be
relied upon by any prospective purchaser or encumbrance of all or any portion of
the Building Area Tenant's failure to deliver such statement within such time
period shall be conclusive upon tenant that this Lease is in full force and
effect. without modification except as may be represented by Landlord. that
there are no uncured defaults in Landlord's performance and that not more than
one month's rental has been paid in advance
VIII. SUBORDINATION AND ATTORNMENT
This Lease, at Landlord's option, shall be subordinate to any existing or
future mortgage, deed of trust, ground lease or declaration of covenants
(regarding maintenance and use of any areas contained in any portion of the
Building) and to any and all advances made under any mortgage or deed of trust
and to all renewals, modifications, consolidations, replacements and extensions
thereof. Tenant agrees that with respect to any of the foregoing documents, no
documentation, other than this Lease. shall be required to evidence such
subordination. If any holder of a mortgage or deed of trust shall elect to have
this Lease superior to the lien of its mortgage or deed of trust and shall give
written notice thereof to Tenant, this Lease shall be deemed prior to such
mortgage or deed of trust, whether this Lease is dated prior or subsequent to
the date of said mortgage or deed of trust or to the date of recording thereof.
Tenant agrees to execute such documents which may be required by Landlord to
confirm such subordination or priority within ten days of notice from Landlord
(including, but not limited to. a Subordination, Non-Disturbance and
Attornment** and should Tenant fail to do so within such time period, Tenant
does hereby make, constitute and irrevocably appoint Landlord as Tenant's
attorney-in-fact and in Tenant's name, place and stead, to do so. Tenant hereby
agrees to attorn to all successor owners of the Building. whether or not such
ownership is acquired as a result of a sale through foreclosure of a deed of
trust or mortgage, or otherwise. Notwithstanding anything to the contrary
contained in this Article, so long as Tenant fulfills all its obligations under
this Lease, Tenant's possession of the premises and Tenant's other rights under
this Lease* shall not be disturbed or impaired by any holder of a mortgage or a
deed of trust, or by any person claiming through or under Landlord.
* including but not limited to the Rents stated in Exhibit C Paragraph 1
** Agreement in a form reasonably acceptable to both parties
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IX. LANDLORD'S RESERVED RIGHTS
Without notice (except as otherwise set forth in this Article) and without
liability to Tenant (except for damages caused by the negligence or willful
misconduct of Landlord or its agent), Landlord shall have the right at any time
or from time to time:
A. upon at least twenty days prior notice to Tenant, change the name or street
address of the Building;
B. install and maintain signs on the exterior of the Building;
C. enter into the Premises in order to take reasonable measures as Landlord
may deem advisable for the safety, repair, maintenance, improvement, care,
cleanliness, security and reputation of the Building, or for the safety,
security and welfare of the occupants of the Building, including Tenant,
and for such purposes take into and through the Premises or any part of the
Building, all required tools, equipment and materials, and temporarily
suspend use of doors, corridors, elevators or other facilities;
D. exhibit the Premises to others at reasonable times upon reasonable notice;
or
E. upon at least five days prior notice to Tenant, enter the Premises and
perform any obligation of Tenant hereunder which Tenant has failed to
perform satisfactorily if Landlord elects to do so.
X. RULES AND REGULATIONS
The rules and regulations attached hereto as Exhibit B, as well as such
reasonable rules and regulations as may be hereafter adopted by Landlord upon at
least ten days prior notice to Tenant for the safety, care and cleanliness of
the Building Area and the preservation of good order thereon, are hereby
expressly made a part hereof, and Tenant agrees to obey all such rules and
regulations.
XI. REPAIRS AND ALTERATIONS
A. Except for those matters which are the responsibility of Landlord as set
forth in Article V, Tenant shall keep the Premises in good condition and
repair (except for reasonable wear and tear and damage due to fire or other
insured casualty), and the Premises shall not be altered, repaired or
changed without the prior written consent of Landlord. Tenant shall keep
the Premises and Building free and clear of any liens due to the actions of
Tenant or its agents and shall indemnify, hold harmless and defend Landlord
from any such liens and encumbrances arising out of any work performed or
materials furnished by or at the direction of Tenant In the event any such
lien is filed, Tenant shall do all acts necessary to discharge such lien
within ten days of filing, or if Tenant desires to contest such lien, then
Tenant shall deposit with Landlord such reasonable security as Landlord
shall demand to insure the payment of such lien claim. In the event Tenant
shall fail to pay any such lien claim when due or shall tail to deposit the
security with Landlord, then Landlord shall have the right to expend all
sums reasonably necessary to discharge such lien claim on Tenant's behalf,
and Tenant shall reimburse Landlord for such expenditure within ten days of
demand by Landlord
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B. Unless otherwise agreed by Landlord, all alterations, improvements and
changes to the Premises that may be required or permitted hereunder shall
be done either by or under the direction of Landlord but at the cost of
Tenant
C. Unless otherwise agreed by Landlord, all alterations, improvements and
changes to the Premises made by or at the direction of Tenant shall, at the
option of Landlord, become the property of Landlord upon the termination of
this Lease, however such termination shall occur, and shall remain upon and
be surrendered with the Premises without reimbursement by Landlord to
Tenant for the cost of any such alterations, improvements or changes. If
Landlord elects that any of the alterations, improvements or changes be
removed by Tenant upon termination of this Lease, Tenant shall remove the
same prior to the termination hereof and shall repair any damages caused by
such removal
D. Tenant shall not cause or permit any alterations, improvements or changes
to the Premises without Landlord's prior written consent
XII. DAMAGES TO PROPERTY; INJURY TO PERSONS
A. Tenant shall neither hold, nor attempt to hold Landlord liable for any
injury or damage, either proximate or remote, occurring through or caused
by fire, water, steam, or any repairs, alterations, injury or accident, or
any other cause to any person, to the Premises, to any furniture, fixtures,
tenant improvements, or other personal property of Tenant kept or stored in
the Premises, to adjacent premises, or to other parts of the Building,
except to the extent caused by the negligence or willful misconduct of
Landlord or its agent.
B. Tenant hereby agrees to indemnify, defend and save Landlord harmless of and
from all liability, loss, damages, costs or expenses, including reasonable
attorney's fees, on account of injuries to the person or damage to the
Building, the property of Landlord or of any other tenant in the Building,
or to any other person rightfully in the Building for any purpose
whatsoever, to the extent that such injuries or damage are caused by the
negligence or misconduct of Tenant, its agents, or employees, or of any
other person entering upon the Premises under express or implied invitation
of Tenant, or where such injuries are the result of the violation of the
provisions of this Lease by any of such persons.
XIII. FIRE AND RESTORATION OF PREMISES; INSURANCE
A. In the event the Premises or the Building is damaged by fire or other
insured casualty and the insurance proceeds have been made available
therefor by the holder or holders of any mortgages or deeds of trust
covering the Premises, the damage shall be repaired by and at the expense
of Landlord to the extent of such insurance proceeds available therefor,
provided such repairs can, in Landlord's reasonable opinion, be completed
within 120 days after the occurrence of such damage without the payment of
overtime or other premiums. Until such repairs are completed, the rent
shall be abated in proportion to the pan of the Premises which is unusable
by Tenant in the conduct of its business (but there shall be no abatement
of rent by reason of any portion of the Premises being unusable for
a
period equal to one day or less). If repairs cannot, in Landlord's
reasonable opinion, be completed within such 120 days, Landlord may elect
to make them within a reasonable time and in such event, this Lease shall
continue in effect and the rent shall be abated in the manner provided
above (except that Tenant shall have the right to terminate this Lease upon
notice to Landlord which notice must be given to Landlord not later than
ten days after Landlord notifies Tenant to such election). If Landlord
elects not to make such repairs which cannot be completed within 120 days,
then either party may, by written notice to the other within thirty days
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after such election, cancel this Lease as of the date of such notice
A
total destruction of the Building shall automatically terminate this Lease.
Notwithstanding the foregoing, if any such damage is caused by the fault or
negligence of Tenant or any of Tenant's officers, employees or agents,
there will be no rent abatement on account of such damage and Tenant shall
be liable to Landlord for the cost of repair and restoration to the extent
not covered by insurance proceeds.
B. Unless Landlord or its agents act in an unreasonable manner, there shall be
no abatement of rent and no liability of Landlord by reason of any injury
to or interference with Tenant's business or property arising from the
making of any repairs, alterations or improvements in or to any portion of
the Building of the Premises or in or to fixtures, appurtenances and
equipment therein. Tenant understands that Landlord will not carry
insurance of any kind on Tenant's furniture and furnishings or on any
fixtures or equipment removable by Tenant under the provisions of this
Lease, and that Landlord shall not be obligated to repair any damage
thereto or replace the same. Landlord shall not be required to repair any
injury or damage by fire or other cause, or to make any repairs or
replacements of improvements installed in the Premises by or for Tenant.
C. In the event that the Building be damaged to the extent of more than
33-1/3% of the replacement cost thereof or if insurance proceeds available
for repair of damage are insufficient, Landlord may elect to terminate this
Lease as of the date of the occurrence of such damage, whether the Premises
be injured or not
D. Landlord shall maintain fire and extended coverage on the Building
(including Building standard leasehold improvements) in amounts determined
by Landlord, with the cost thereof to be included in Building Expenses
under Article III of this Lease Tenant agrees to maintain reasonable
insurance coverage with respect to Tenant's property located within the
Building
E. Landlord and Tenant each hereby waives any and all causes of action and
rights of recovery against the other, its officers, employees and agents,
for any loss or damage occurring to the Premises or the Building, or the
improvements, fixtures, merchandise and personal property of every kind
located in and about the Building to the extent required to be covered by
insurance (whether or not such insurance is actually maintained) regardless
of cause or origin, including the negligence or either party, its officers.
employees or agents To the extent necessary to effect the foregoing waiver
of subrogation. Landlord and Tenant agree to obtain from their respective
insurance carriers endorsements to all appropriate policies of insurance
waiving the right of subrogation of the insurance carriers
F. Whenever Landlord has an opportunity to make an election under this
Article, Landlord must make such election within sixty days of the
occurrence of the event which gives rise to such opportunity. Whenever
Landlord elects under this Article to repair the Premises, the Premises
shall be repaired to building standard condition, however, in such event,
Tenant shall have the right to cause Landlord to repair the Premises to the
condition which existed prior to the applicable damage, provided that
Tenant pays to Landlord, in advance, that portion of the cost of such
repair in excess of the cost to repair the Premises to building standard
condition
XIV. CONDEMNATION
If any portion of the Premises or any portion of the Building which shall
render the Premises untenantable shall be taken by right of eminent domain or by
condemnation or shall be conveyed in lieu of any such taking, then this Lease,
-10-
at the option of either Landlord or Tenant exercised by either party giving
notice to the other of such termination within thirty days after such taking or
conveyance, shall terminate and the rent shall be duly appointed as of the date
of such taking or conveyance. Tenant thereupon shall surrender to Landlord the
Premises and all interest therein under this Lease, and Landlord may reenter and
take possession of the Premises or remove Tenant therefrom. In the event of any
such taking or conveyance, Landlord shall receive the entire award or
consideration of the lands and improvements so taken and Tenant hereby assigns
to Landlord all rights of Tenant, if any, to receive any such award or
consideration (except any separate award reimbursing Tenant for moving or
relocation expenses or specifically allocated to Tenant's property or
improvements to the Premises which were paid for by Tenant).
XV. DEFAULT
The occurrence of any one or more of the following events shall constitute an
"event of default":
A. Tenant shall tail to pay in full, when due, any amount of rent or any other
amount payable hereunder, and such failure shall continue for five days
after notice from Landlord to Tenant;
B. Tenant shall vacate or abandon the Premises for a period in excess of 30
consecutive days without the consent of Landlord;
C. Tenant's interest in this Lease or the Premises or any part thereof shall
be taken upon execution or by other process of law directed against Tenant,
or shall be subject to any attachment at the instance of any creditor or
claimant against Tenant, and said attachment shall not be discharged or
disposed of within thirty days after the levy thereof;
D. Tenant or any guarantor of Tenant's obligations hereunder shall file
a
petition in bankruptcy or insolvency or for reorganization or arrangement
under the bankruptcy laws of the United States or under any insolvency act
of any state, or shall voluntarily take advantage of any such law or act by
answer or otherwise, or shall be dissolved or shall make a general
assignment for the benefit of creditors:
E. Involuntary proceedings under any such bankruptcy law or insolvency act or
for the dissolution of Tenant or any guarantor of Tenant's obligations
hereunder shall be instituted against Tenant or any guarantor of Tenant's
obligations hereunder, or a receiver or trustee shall be appointed for all
or substantially all of the property of Tenant or any guarantor of Tenant's
obligations hereunder, and such proceeding shall not be dismissed or such
receivership or trusteeship vacated within sixty days after such
institution or appointment;
F. Tenant shall fail to comply with the provisions of Article VII or Article
VIII.
G. Tenant shall breach any of the other agreements, terms, covenants or
conditions hereof on Tenant's part to be performed, and such breach shall
continue for a period of thirty days after notice thereof by Landlord to
Tenant; or
H. Tenant or any guarantor of Tenant's obligations hereunder shall be unable
to pay its debts as they become due.
Upon the occurrence of an event of default, Landlord shall have the right, at
its election, then or at any time thereafter, either:
-11-
1. to give Tenant written notice of intention to terminate this Lease on
the date of such given notice or on any later date specified therein,
whereupon Tenant's right to possession of the Premises shall cease and
this Lease shall thereupon be terminated,
2 without demand or notice, to reenter and take possession of the
Premises or any part thereof, repossess the same, expel Tenant and
those claiming through or under Tenant, and remove the effects of both
or either, without being liable for prosecution thereof so long as due
care is used in such removal, without being deemed guilty of any
manner of trespass Should Landlord elect to reenter as provided in
this Section 2, or should Landlord take possession pursuant to legal
proceedings or pursuant to any notice provided by law, Landlord shall,
without terminating this Lease, use its good faith efforts to relet
the Premises or any part thereof in Landlord's name for the account of
Tenant on such terms and conditions as Landlord then deems to be
reasonable in light of then current market conditions. No such reentry
or taking possession of the Premises by Landlord shall be construed as
an election on Landlord's part to terminate this Lease unless
a
written notice of such intention be given to Tenant. No notice from
Landlord hereunder or under a forcible entry and detainer statute or
similar law shall constitute an election by Landlord to terminate this
Lease unless such notice specifically so states. Landlord reserves the
right following any such reentry and/or reletting to exercise its
right to terminate this Lease by giving Tenant such written notice, in
which event the Lease will terminate as specified in said notice
Nothing in this Article is intended to relieve Landlord of any
obligation imposed by Colorado law to mitigate damages in the event of
a default by Tenant hereunder.
In the event that Landlord does not elect to terminate this Lease as
permitted in Section 1 of this Article, but on the contrary, elects to take
possession as provided in Section 2 of this Article, Tenant shall pay to
Landlord (i) the rent and other sums as herein provided, which would be payable
hereunder if such repossession had not occurred, less (ii) the net proceeds, if
any, of any reletting of the Premises after deducting all Landlord's expenses in
connection with such reletting, including, but without limitation, all
repossession costs, brokerage commissions, attorneys' fees, expenses of
employees, alteration and repair costs and expenses of preparation for such
reletting If, in connection with any reletting, the new lease term extends
beyond the existing term, or the premises covered thereby include other premises
not part of the Premises, a fair apportionment of the rent received from such
reletting and the expenses incurred in connection therewith as provided
aforesaid will be made in determining the net proceeds from such reletting, and
any rent concessions will be equally apportioned over the term of the new lease
Tenant shall pay such rent and other sums to Landlord monthly on the day on
which the rent would have been payable hereunder if possession had not been
retaken and Landlord shall be entitled to receive the same from Tenant on each
such day.
In the event, however, this Lease is terminated by Landlord on account of
an event of default, Landlord shall be entitled to recover forthwith against
Tenant as damages for loss of the bargain and not as a penalty, an aggregate sum
which, at the time of such termination of this Lease, represents the excess of
the aggregate of the rent and all other sums payable by Tenant hereunder that
would have accrued for the balance of the term over the aggregate rental value
of the Premises (such rental value to be computed on the basis of a tenant
paying not only a rent to Landlord for the use and occupation of the Premises,
but also such other charges as are required to be paid by Tenant under the terms
of this Lease) for the balance of such term both discounted to present value at
the rate of eight percent per annum.
Suit or suits for the recovery of the amount and damages set forth
hereinabove (and for amounts owing by Tenant to Landlord under this Lease prior
to Landlord's election of remedies under this Article) may be brought by
Landlord, from time to time, at Landlord's election, and nothing herein shall be
-12-
deemed to require Landlord to await the date whereon this Lease or the term
hereof would have expired had there been no event of default. Each right and
remedy provided for in this Lease shall be cumulative and shall be in addition
to every other right or remedy provided for in this Lease or now or hereafter
existing at law or in equity or by statute or otherwise, and the exercise or
beginning of the exercise by Landlord of any one or more of the rights or
remedies provided for in this Lease or now or hereafter existing at law or in
equity or by statute or otherwise shall not preclude the simultaneous or later
exercise by Landlord of any or all other rights or remedies provided for in this
Lease or now or hereafter existing at law or in equity or by statute or
otherwise.
Nothing contained in this Article shall limit or prejudice the right of
Landlord to prove and obtain as liquidated damages in any bankruptcy,
insolvency, receivership, reorganization or dissolution proceeding, an amount
equal to the maximum allowed by any statute or rule of law governing such
proceeding and in effect at the time when such damages are to be proved, whether
or not such amount be greater, equal to or less than the amounts recoverable,
either as damage or rent, referred to in any of the preceding provisions of this
Article.
Notwithstanding anything contained in this Article to the contrary, any
such proceeding or action involving bankruptcy, insolvency, reorganization,
arrangement, assignment for the benefit of creditors, or appointment of receiver
or trustee, as outlined in this Article, shall be considered to be an event of
default only when such proceeding. action or remedy shall be taken or brought by
or against the then holder of the leasehold estate under this Lease (which
holder must have been consented to by Landlord pursuant to Article VI).
XVI, LANDLORD'S DEFAULT
In the event Tenant alleges any default by Landlord hereunder, Tenant shall
deliver to Landlord written notice and Landlord shall have 30 days following
receipt of such notice to cure such alleged default or, in the event such
alleged default cannot reasonably be cured within such 30-day period, to
commence action to cure such alleged default within a reasonable time A copy of
such notice shall be sent by registered mail to any holder of a mortgage or
other encumbrance on the Building the name and address of which Tenant has been
notified in writing (by way of notice of assignment of rents and leases or
otherwise), and such holder shall also have the same time period to cure such
alleged default. which period shall begin to run 30 days after the expiration of
any period allowed Landlord hereunder, or if such default cannot be cured within
that time, then such additional time as may be necessary to effect such cure, so
long as such holder commences such cure within such 30 day period and thereafter
diligently pursues any remedies necessary or, appropriate for curing such
default (including. but not limited to. commencement of foreclosure
proceedings), in which event this Lease shall not be terminated while such
remedies are being so diligently pursued
XVII. SURRENDER; HOLDING OVER; PERSONAL PROPERTY
A. Upon termination of this Lease, either by lapse of time or otherwise,
Tenant shall peaceably surrender the Premises in good condition and repair
except for ordinary wear and tear, or damage by Act of God or other
casualty beyond Tenant's control, or by fire or other casualty covered by
standard extended coverage insurance Tenant shall remove Tenant's moveable
personal property from the Premises upon such termination and shall repair
all damages to the Premises caused by such removal.
B. No surrender of the Premises shall be executed by Landlord's acceptance of
the keys or of the rent or by any other means whatsoever without Landlord's
written acknowledgment of such acceptance as a surrender.
-13-
C. Should Tenant, with Landlord's written consent, hold over after the
termination of this Lease, Tenant shall become a Tenant from month-to-month
upon each and all of the terms herein provided. During such holding over,
Tenant shall pay base rent at the highest monthly rate provided for herein
and shall pay all other rent and other amounts owing to Landlord hereunder.
Such month-to-month tenancy shall continue until either party gives to the
other party notice at least one month prior to the date of termination of
its intention to terminate such tenancy.
D. All movable personal property of Tenant not removed from the Premises upon
the abandonment thereof or upon the termination of this Lease for any cause
whatsoever shall conclusively be deemed to have been abandoned and may be
appropriated, sold. stored, destroyed or otherwise disposed of by Landlord
without notice to Tenant or any other person and without obligation to
account therefor, and Tenant shall pay Landlord all expenses incurred in
connection with the disposition of such property in excess of any amount
received by Landlord in connection with such disposition.
E. During the term hereof, Tenant shall pay prior to delinquency all taxes
assessed against and levied upon fixtures, furnishings, equipment and all
other personal property of Tenant contained in the Premises, and Tenant
shall cause said fixtures, furnishings, equipment and other personal
property to be assessed and billed separately from the real property of
Landlord.
XVIII. COVENANT OF QUIET ENJOYMENT
Landlord covenants that Tenant shall be granted peaceable and quiet
enjoyment of the Premises during the term hereof so long as Tenant punctually
(i) pays the rent and all other amounts payable by Tenant hereunder and (ii)
performs all of Tenant's other covenants and obligations hereunder.
XIX. NOTICES;
Any notice, request, demand, Consent, approval or other communication
required or permitted hereunder shall be in writing and shall be deemed to have
been given when personally delivered or mailed by United States certified mail,
return receipt requested, postage prepaid, addressed to the party for whom it is
intended at the following addresses:
LANDLORD: 1700 Grant Associates, Ltd.
303 E. 17th Avenue, Suite 200
Denver, C0 80203
TENANT: Accelr8 Technology Corporation with a copy to
Attn: Robert Hickler, President Accelr8 Technology Corporation
303 E. 17th Avenue, Suite 108 Attn: Thomas V. Geimer, Chairman
Denver, C0 80203 303 E. 17th Avenue, Suite 108
Denver, C0 80203
provided; however, that either party may change its address for purposes of
receipt of any such communication by giving ten days' prior written notice of
such change to the other party in the manner prescribed above.
-14-
XX. MISCELLANEOUS
A. Subject to the provisions of Article VI, all agreements covenants and
obligations of this Lease shall be binding upon apply and inure to the
benefit of the parties hereto and their respective heirs, personal
representatives. successors and assigns.
B. This Lease contains the entire agreement between the parties and may be
amended only by subsequent written agreement. No promises or
representations except as herein contained, have been made to Tenant
respecting the condition of the Premises or the manner of operating the
Building.
C. The captions of the various Articles of this Lease are for convenience only
and do not necessarily define. limit, describe or construe the contents of
such Articles.
D. The words "Landlord" and "Tenant" as used herein shall include the plural
as well as the singular. Words used herein in one gender shall include the
other genders where applicable. If there be more than one Tenant the
obligations hereunder imposed upon Tenant shall be joint and several.
E. Time is of the essence of this Lease and each and all of its provisions.
F. Submission of this instrument for examination or signature by Tenant does
not constitute a reservation of or option for Lease, and it is not elective
as a Lease or otherwise until execution and delivery by both Landlord and
Tenant.
G. Except for delinquent rent for which late charges are due under Article
III, any amount due from Tenant to Landlord hereunder which is not paid
when due shall bear interest at two percent per annum above the prime
interest rate of IntraWest Bank of Denver National Association, or its
successor from the due dale until paid, but the payment of such interest
shall not excuse or cure any default by Tenant under this Lease. and in no
event shall such rate exceed the highest rate allowed by law in Colorado.
H. Any provisions of this Lease which shall prove to be invalid. void or
illegal shall in no way affect, impair or invalidate any other provision
hereof and such other provisions shall remain in lull force and effect.
I. This Lease shall be governed by and construed pursuant to the laws of the
State of Colorado.
J. Each party agrees to promptly reimburse the other party for any costs or
reasonable attorneys' tees incurred by the non-breaching party on account
of any breach by the other party of any of the provisions of this Lease.
K. Landlord shall not be liable to Tenant for any default under this Lease
which occurs after the sale of the Building by Landlord, and Tenant agrees
that its rights with respect to any such default shall be asserted against
Landlord's successor in interest.
L. Landlord may, at its option, make any payment or perform any defaulted
covenant or agreement of Tenant contained herein, and any monies advanced
by Landlord for such purposes (including expenses and reasonable attorneys'
fees shall be immediately due and payable by Tenant to Landlord.
-15-
M. Within ten days of notice from the other party, each party agrees to
provide such other party with reasonable evidence (e.g, an opinion of
counsel or a corporate or partnership resolution) that this Lease has been
duly executed, authorized and delivered by such party.
N. No failure by either party to insist upon the strict performance of any
agreement. term, covenant or condition hereof or to exercise any right or
remedy consequent upon a breach thereof, and no acceptance of full or
partial rent during the continuance of any such breach, shall constitute
a
waiver of any such breach of such agreement, term, covenant or condition or
a relinquishment of the right to exercise such right or remedy. No
agreement, term, covenant or condition hereof to be performed or complied
with by either party, and no breach thereof, shall be waived, altered or
modified except by written instrument executed by the other party. No
waiver of any breach shall affect or alter this Lease, but each and every
agreement, term, covenant and condition hereof shall continue in full force
and effect with respect to any other then existing or subsequent breach
thereof. Notwithstanding any termination of this Lease, the same shall
continue in force and effect as to any provisions hereof which require
observance or performance of Landlord or Tenant subsequent to termination.
O. Landlord shall have absolutely no personal liability with respect to any
provision of this Lease or any obligation or liability arising from this
Lease or in connection with this Lease in the event of a breach or default
of Landlord of any of its obligations Tenant shall look solely to the
Landlord's equity in the Building, at the time of the breach or default for
the satisfaction of any remedies of Tenant Such exculpation of liability
shall be absolute and without any exception whatsoever
XXI CONSTRUCTION OF LEASEHOLD IIIIPROVEII ENTS
Landlord and Tenant shall diligently pursue the preparation of all plans
and specifications for the Improvement of the Premises shall be performed in a
good and workmanlike manner and in compliance with all applicable laws rules end
regulations
-16-
XXII ADDITIONAL PROVISIONS
The additional provisions set forth in Exhibit C attached hereto constitute
part of this Lease
IN WITNESS WHEREOF the parties hereto execute this Lease the day and year
first above written
LANDLORD: 1700 GRANT ASSOCIATES, LTD.
a Colorado limited partnership
By: STARR REALTY CORPORATION
a Delaware corporation
doing business in Colorado as
STARR REALTY MANAGEMENT CORPORATION
authorized agent
By: /s/ Edward J. Schmidt
---------------------------------
Edward J. Schmidt
President
TENANT: ACCELR8 TECHNOLOGY CORPORATION
a Colorado corporation
By: /s/ Robert Hicker
-----------------------------------
Robert Hickler
President
-17-
EXHIBIT A
A floor plan drawing indicating the location of the Premises in the
Building will be provided by Landlord an initialed by the parties. Such drawing
shall be attached to the Lease as part of this Exhibit A.
Location of the Building: 303 East 17th Avenue
Denver, Colorado 80203
Description of the Building: That certain twelve-story building known as
Seventeenth and Grant Building
Legal description of land underneath and surrounding the Building: See Exhibit
A, page A-2
-18-
EXHIBIT "A"
LEGAL DESCRIPTION
PARCEL 1: Lots 11 through 20 inclusive, Block 264 Clements Addition to the
City of Denver, City and County of Denver, State of Colorado.
PARCEL 2: A 16 toot wide parcel lying between Lots 11 through 20 inclusive,
Block 70 H.C. Brown's Addition to the City and County of Denver
and Lot 11 through 20 inclusive, Block 264 Clements Addition to
the City and County of Denver, more particularly described and
bounded as follows:
Beginning at the southeast corner of Lot 20, Block 70 of said
H.C. Brown's Addition; thence northerly along the easterly line
of said Block 70 a distance of 250.75 feet to a point, said point
being then northeast corner of Lot 11, Block 70 of said H.C.
Brown's Addition ;thence on a deflection angle to the right of
90(a)02'09" and easterly a distance of 16.00 feet to a point,
said point being the northwest corner of Lot 11, Block 264 of
said Clements Addition; thence on a deflection angle to the right
of 89(a)57'51" and southerly along the westerly line of said
Block 264 a distance of 250.75 feet to a point, said point being
the southwest corner of Lot 20, Block 264 of said Clements
Addition, said point also being a point on the north right-of-way
line of 17th Avenue; thence on a deflection angle to the right of
90(a)02'09" and westerly along said northright-of-way line of
l7th Avenue a distance of 16.00 feet to the point of beginning,
containing 4,012.00 square feet or 0.092 acre, more or less.
PARCEL 3: Lots 11 through 20, inclusive, Block 70 H.C. Brown's
Addition to the City of Denver, City and County of Denver, State
of Colorado.
-19-
EXHIBIT B
RULES AND REGULATIONS
1. At all times during the term of this Lease, Landlord shall have the right
by itself, its agents and employees, to enter into and upon the Premises
during reasonable business hours for the purpose of examining and
inspecting the same and determining whether Tenant shall have complied with
its obligations under the Lease, including the Rules and Regulations.
2. Tenant shall not use the name of the Building for any purpose other than
Tenant s business address and shall not use a picture or likeness of the
Building or Premises in any advertisement, notice or correspondence without
the prior written consent of Landlord.
3. Tenant shall not make or permit any noise or odor that is objectionable ~o
the public or to other occupants of the Building to emanate from the
Premises, shall not create or maintain a nuisance thereon and shall not do
anything tending to injure the reputation of the Building or the Premises.
4. Tenant shall not place or permit any radio antenna, loud speakers, sound
amplifiers, or similar devices on the roof or outside of the Building.
5. The sidewalks, entrances, passages, elevators, vestibules, stairways,
corridors and halls may not be obstructed or used for any purpose other
than ingress or egress to and from the Premises.
6. Supplies, goods, materials, packages, furniture and all such items of every
kind are to be delivered at the entrance point provided therefor as
Landlord may designate. All such items moved in or out of the Building
shall be done at such time and in such manner as designated by Landlord.
7. Landlord may retain a passkey to the Premises. Tenant shall not alter any
lock or install a new lock on any door of the Premises without the prior
written consent of Landlord; if such consent is given, Tenant shall provide
Landlord with an additional key for the use of Landlord.
8. Upon leaving the Premises, Tenant shall close and lock all windows and
doors of the Premises, and shall shut off all water faucets and major
electrical apparatus located within the Premises
9. Tenant shall not install any concession or vending machines in the
Premises, and shall not sell from the Premises the following items: cigars,
cigarettes, tobaccos, pipes, candies, newspapers, magazines or greeting
cards.
10. Landlord reserves the right to reasonably designate all contractors for
sign painting and lettering
11. Tenant shall, upon termination of the Lease or of Tenant s possession,
surrender all keys of the Premises to Landlord at the place then fixed for
the payment of rent and shall provide Landlord with all combinations and
keys for any locks, safes, cabinets and vaults remaining in the Premises.
12. All persons entering or leaving the Building between the hours of 6:00 p.m.
and 8:00 a.m., Monday through Friday, or at any time on Saturdays, Sundays
or Holidays, may be required to do so under such regulations as Landlord
may Impose.
-20-
Landlord shall, from time to time upon ten days notice to Tenant, have the
right to amend, modify or waive any of the foregoing Rules and Regulations.
The failure of Landlord to enforce any of the Rules and Regulations against
any other tenant in the Building shall not be deemed a waiver of any of such
Rules and Regulations. Landlord shall not be liable to Tenant for violation of
any of the Rules and Regulations or the breach of any covenant or condition in
any lease by any other tenant in the Building.
No act or thing done or omitted to be done by Landlord or Landlord s agent
during the term of the Lease to enforce the Rules and Regulations shall
constitute an eviction of Tenant by Landlord, nor shall it be deemed an
acceptance or surrender of said Premises; no agreement to accept such surrender
shall be valid unless in writing signed by Landlord.
-21-
EXHIBIT "C"
ADDITIONAL PROVISIONS
1. Rent. Tenant shall pay to Landlord as base rent without offset or
reduction during the term of this Lease the total sum of $116,417.52 which shall
be payable in the following amounts during the periods indicated:
(a) during the period from April 1, 1992 through March 31, 1994, the
sum of $2,847.17 per month, a rate of $9.00 per square foot; and
(b) during the period from April 1, 1994 through July 31, 1995, the
sum of $3,005.34 per month, a rate of $9.50 per square foot.
2. Parking. Tenant shall have the right to lease one parking space for each
650 usable square feet in the premises throughout the term of the Lease. Upon
Lease Commencement Landlord will provide six unassigned parking spaces at $40.00
per space per month during the Lease term.
4. Option to Extend Lease Term. Provided Tenant is not then in default
under the terms and conditions of this Lease, Landlord hereby grants to Tenant
the Option to Extend the Lease Term for one year, August 1, 1995 to July 31,
1996, exercisable by written notice to the Landlord 90 days but no more than 120
days prior to the expiration of the primary term of the Lease.
5. Rent During Option Period. If Tenant elects to exercise its Option to
Extend Lease Term Rent During Option Period will be $3,084.43 per month, a rate
of $9.75 per square foot.
6. Right of First Offer. Provided Tenant is not then in default under the
terms and conditions of this Lease, Landlord hereby grants to Tenant the
continuous Right of First Offer on the adjacent 2,243.48 rentable square feet
east of the premises. Provided space is taken in "as is" condition except for a
doorway into the expansion space and patching the carpet where doorway is
created, the Rent will be at the same rate as in effect as of the date of
expansion.
7. Storage Service. Landlord will provide storage for Tenant's empty boxes
at a rate of $25.00 per month throughout the term of the Lease. Location of such
stored empty boxes will be at the discretion of Building Engineer and access to
the boxes will be limited to times reasonably convenient to Building Engineer.
-22-
FIRST AMENDMENT TO OFFICE LEASE
This First Amendment to Office Lease is made and entered into as of the
11th day of May 1995 between 1700 Grant Associates, Ltd., a Colorado limited
partnership ("Landlord"), and Accelr8 Technology Corporation, a Colorado
corporation ("Tenant").
WHEREAS, Landlord and Tenant entered into an Office Lease dated March 13,
1992 ("Lease") whereby Landlord leased to Tenant approximately 3,796.22 square
feet of floor space on the first (lst) floor of the building located at 303 East
17th Avenue, Denver, Colorado ("Building") to be known as Suite #108
("Premises") and;
WHEREAS, Landlord and Tenant hereby agree to Amend said Lease as follows:
1. EXTENDED TERM: The Extended Term shall be for one (1) year commencing
August 1, 1995 and terminating July 31, 1996.
2. RENTAL PAYMENTS: Tenant shall pay to Landlord as base rent without
offset or reduction during the term of this Lease the total sum of
Thirty-Seven Thousand Thirteen and 16/lOOths Dollars ($37,013.16)
which shall be payable as follows:
(a) during the period from August 1, 1995 through July 31, 1996 the
sum of $3,084.43 per month $9.75 per rentable square foot.
3. OPTION TO RENEW. Provided Tenant is not then in default under the
terms and conditions of this Lease, Landlord hereby grants to Tenant
an Option to Extend this Lease for one five (5) month additional term.
Such term shall commence August 1, 1996 and terminate December 31,
1996. Rent for said Option Period shall be $3,084.42 per month, $9.75
per rentable square foot.
4. PARKING GARAGE. Tenant shall have the right to lease one parking space
for each 650 usable square feet in the premises throughout the
Extended Term and the Option. Landlord will provide nine (9)
unassigned parking spaces at prevailing market rate of $40.00 per
space per month. This rate will be adjusted from time to time to
coincide with the prevailing market rate, and Tenant will be provided
a thirty (30) day written notice of such adjustment.
In the event of any conflict or express inconsistencies between the terms
of the Lease and the terms of this First Amendment, the terms of this First
Amendment shall govern. Unless modified by this First Amendment, the terms and
conditions of the Lease are hereby incorporated into this First Amendment, in
toto.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands the
day and year first above written.
LANDLORD: 1700 GRANT ASSOCIATES, LTD.
a Colorado limited partnership
By: STARR REALTY CORPORATION
a Delaware corporation doing business in Colorado
as Starr Realty Management Corporation
/s/ Edward J. Schmidt
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TENANT: ACCELR8 TECHNOLOGY CORPORATION,
a Colorado corporation
/s/ Thomas V. Geimer
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Chairman of the Board
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EXHIBIT 10.9
STARR REALTY
MANAGEMENT CORPORATION
303 EAST 17TH AVENUE, SUITE 770
DENVER, COLORADO 80203
(303) 832-7500
August 6, 1996
Mr. Randy Martin Long Beach Mortgage Company 303 E. 17th Avenue, Suite 110 Denver
Colorado 80203
RE: Letter Agreement
Long Beach Mortgage Company
17th & Grant
Dear Randy:
1700 Grant Associates, Ltd., the ownership of the 17th & Grant Building,
(Landlord) and Long Beach Mortgage Company (Tenant) agree to a month to month
extension of their current Lease for Suite 110 in the Building. All terms and
conditions of the Lease will remain in full force and effect during the holdover
period.
Accelr8, a Tenant in Suite 108 of the 17th & Grant Building, has elected to
exercise a Right of First Offer on Suite 110, currently occupied by Long Beach
Mortgage Company, and reserves the right to take possession of the premises upon
thirty (30) days notice to Long Beach Mortgage Company.
Please sign both copies of this letter, keeping one for your records and
returning one to our office. Should you have any question, please do not
hesitate to let me know.
Sincerely,
STARR REALTY MANAGEMENT CORPORATION
/s/ Tamara Featherston - ----------------------------------- Assistant Real Estate
Manager
AGREED TO AND ACCEPTED THIS 6th DAY OF AUGUST, 1996.
ACCELR8 TECHNOLOGY CORPORATION
By: /s/ Thomas Geimer
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Thomas Geimer
Authorized Representative
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