SHOPPING CENTER LEASE

 

FOR

 

1000 South Colorado Boulevard

 

between

 

The Robford Company, L.L.C.

a Colorado limited liability company

 

("LANDLORD") 

 

 

and 

 

The Cheesesteak Connection #4, L.L.C ("TENANT")

 

 

Dated: February 17, 2010

 

 

 

 

 

SHOPPING CENTER LEASE CONTENTS

 

 

ARTICLE 1 - DEFINITIONS			1
1.1	Definitions and Certain Basic Provisions		1
1.2	Monthly Payment		4
1.3	Additional Rent		4
1.4	Construction		4
1.5	Re-measurement		4
ARTICLE 2 - GRANTING CLAUSE			4
ARTICLE 3 - CONSTRUCTION AND ACCEPTANCE OF  THE  PREMISES; LANDLORD'S  AND TENANT'S WORK			4
3.1	As-Is Delivery		4
3.2	Tenant's Investigation		4
3.3	Failure to Deliver Possession		5
3.4	Landlord's Work, Condition of Premises and Performance of Work		5
3.5	Opening of Tenant's Store		5
3.6	Patio		6
ARTICLE 4 - MONTHLY PAYMENT			6
4.1	Rent		6
4.2	Payment		6
4.3	Minimum Guaranteed Rental Increases		7
ARTICLE 5 - COMMON AREA			7
5.1	Common Area		7
5.2	Use of Common Areas: Parking		7
5.3	CAM Charges		8
5.4	Gross-up		9
5.5	Proportionate Share		9
5.6	Audit		9
5.7	CAM Exclusions		10
ARTICLE 6 - USE AND CARE OF THE PREMISES			10
6.1	Trade Name		10
6.2	Increased Premiums		11
6.3	No Wholesale		11
6.4	No Waste		11
6.5	Displays		11
6.6	Compliance with Laws		11
ARTICLE 7 - MAINTENANCE AND REPAIR OF THE PREMISES			12
7.1	Landlord's Obligation		12
7.2	Tenant's Obligations		12
7.3	Maintenance Contracts		14
7.4	Landlord's Repair Rights		14
7.5	End of Term		14
ARTICLE 8 - ALTERATIONS			15
8.1	Alterations		15
8.2	Removal of Alterations		16
8.3	Removal of Fixtures		16

 

 

 

 

 

 

 

8.4	Standard of Alterations		16
8.4	Roof Alterations		16
ARTICLE 9 - LANDLORD'S RIGHT OF ACCESS; USE OF ROOF			16
9.1	Right of Access		16
9.2	Use of Roofs and Walls		16
ARTICLE 10 - SIGNS; STORE FRONTS			17
10.1	Signage		17
10.1	Removal of Signage		17
ARTICLE 11 - UTILITIES			17
11.1	Procurement of Utilities		17
11.2	Utilities		17
11.3	Tenant's Costs		18
11.4	Interruption of Services		18
ARTICLE  12 - INDEMNITY,  PUBLIC  LIABILITY  INSURANCE  AND  FIRE  AND EXTENDED COVERAGE INSURANCE			18
12.1	Indemnification		18
12.2	Insurance		19
ARTICLE 13 - NON-LIABILITY FOR CERTAIN DAMAGES			21
13.1	Waiver		21
13.2	Limitation on Recourse		21
ARTICLE 14 - FIRE AND OTHER CASUALTY			21
14.1	Damage		21
14.2	Restoration		21
14.3	Proceeds		22
14.4	Tenant's Payment		22
14.5	Limitations		22
14.6	Prorations		22
ARTICLE 15 - CONDEMNATION			23
15.1	Condemnation		23
ARTICLE 16 - ASSIGNMENT AND SUBLETTING			24
16.1	By Tenant		24
16.2	By Landlord		27
ARTICLE 17 - PROPERTY TAXES			28
17.1	Tenant's Taxes		28
17.2	Tenant's Proportionate Share		28
17.3	Failure to Pay		29
17.4	Changes in Taxation		29
17.5	Tax Year		29
17.6	Tax Consultant		29
ARTICLE 18 - DEFAULT BY TENANT AND REMEDIES			29
18.1	Event of Default		29
18.2	Right to Cure		30
18.3	Landlord's Remedies		30
18.4	No Surrender		31
18.5	Tenant's Liability		31
18.6	No Duty to Mitigate		32

 

 

 

 

 

18.7	Landlord's Self-help Action		32
18.8	Landlord's Default		32
18.9	No Liability		32
18.10	Additional Rights		33
18.11	lnjunctive Relief; Cumulative Remedies		33
ARTICLE 19 - SECURITY DEPOSIT; LANDLORD'S LIEN; MECHANICS LIENS			34
19.1	Security Deposit		34
19.2	Landlord's Lien		34
19.3	Mechanics Liens		35
ARTICLE 20 - HOLDING OVER			36
21.1	Subordination		36
ARTICLE 22 - EFFECT OF SALE			37
23.1	Notice		37
23.2	Parties		38
ARTICLE 24 - LATE CHARGES			38
24.1	Late Charges		38
24.2	Interest		38
ARTICLE 25 - RADIUS RESTRICTIONS			38
25.1	Intentionally Omitted		38
ARTICLE 26 - HAZARDOUS MATERIALS			38
26.1	Definitions		38
26.2	Tenant's Restrictions		39
26.3	Environmental Clean-up		39
26.4	Tenant's Indemnity		39
26.5	Survival		40
ARTICLE 27 - MISCELLANEOUS			40
27.1	Joint Venture		40
27.2	Captions		40
27.3	No Waiver		40
27.4	Holder Notice		40
27.5	Quiet Enjoyment		40
27.6	Entire Agreement		40
27.7	Brokers		40
27.8	Estoppel		41
27.9	Governing Law		41
27.10	Binding		41
27.11	Effectiveness		41
27.12	Attorneys' Fees and Jury Trial		41
27.13	Financial Statements		41
27.14	Landlord's Fees		42
27.15	Force Majeure		42
27.16	Counsel Review		42
27.17	Severability		42
27.18	Rules and Regulations		42
27.19	Tax Credits		42
27.20	Shopping Center Occupancy		43

 

 

 

 

 

 

27.21	Guarantor	43
27.22	Recording	43
27.23	Non-Disclosure	43
ARTICLE 28 - OPTION TO RENEW		43
28.1	Option to Renew	43
ARTICLE 29 - BANKRUPTCY		43
29.1	Deemed Rejection of Lease	43
29.2	Adequate Assurance	44
29.3	Lease Assignments in Bankruptcy Proceedings	44
29.4	Authority	45

EXHIBITS

 

A

Site Plan

B	Legal Description of the Shopping Center

C	Work Letter

D	Rules and Regulations

E	Guaranty of Lease

F	Restrictions on Use of the Shopping Center

G	Direct Payment

 

 

 

 

 

 

 

being part of the Shopping Center situated upon the property described in Exhibit B attached hereto. "Shopping Center" shall refer to the property described in Exhibit B, together with such buildings, additions, and other changes as Landlord may from time to time designate as included within the Shopping Center.

(h)   Rentable Square Footage of the Premises: square footage as measured from the outside of the exterior walls to halfway through common interior walls, plus a proportionate share of the common areas of the Building "A." Landlord and Tenant agree that the Rentable Square Footage of the Leased Premises is deemed to be 2,598 square feet (inclusive of the 98 square feet of load factor) at the execution of this Lease, and is the square footage which shall be used for all rental calculations under this Lease. Landlord reserves the right to re-measure and adjust the Rentable Square Footage of the Premises from time to time during the Lease Term should the size or location of the Premises or Building "A" change from the time of execution of this Lease.

 

(i)   Landlord and Tenant agree that the Gross Rentable Square Footage of the Shopping Center at the execution of this Lease is deemed to be 16,134 square feet. Landlord reserves the right to re-measure and adjust the Gross Rentable Square Footage of the Shopping Center from time to time during the Lease Term should the size or number of the buildings or common areas within the Shopping Center change from that at the time of execution of this Lease.

 

G)   Landlord and Tenant agree that the Gross Rentable Square Footage of Building "A" at the execution of this Lease is deemed to be 10,732 square feet. Landlord reserves the right to re-measure and adjust the Gross Rentable Square Footage of Building "A" from time to time during the Lease Term should the size of Building "A" change from that at execution of this Lease.

 

(k)  Tenant's Proportionate Share refers to the percentage that is equal to a fraction, the numerator of which shall be the Rentable Square Footage of the Premises, and the denominator of which shall be the Gross Rentable Square Footage of the Shopping Center. Landlord and Tenant agree that the Tenant's Proportionate Share of expenses at the execution of this Lease is deemed to be 16.1%. Tenant's Proportionate Share shall be adjusted as the Rentable Square Footage of the Premises or the Gross Rentable Square Footage of the Shopping Center changes, for whatever reason, or if, in Landlord's reasonable judgment, Tenant's use of any expense, including but not limited to water, sewer, garbage, natural gas, and electricity, exceeds the Proportionate Share stated above, then in that event, Landlord may adjust Tenant's Proportionate Share as it relates to that specific expense alone.

 

(1)   Lease Term: 120 months, plus any partial month, if any, in which the Commencement Date occurs, as the same may be extended as provided herein.

 

(m)  Delivery Date: Upon completion of Landlord's work, described herein under exhibit C, in a reasonably acceptable and workmanlike manner, submission of written notice to Tenant providing delivery of Premises to Tenant and completion of all requested and reasonable punch list items, in accordance with exhibit C, and subject to the provisions set forth in Section 3.3 below.

 

 

	TERM	RATE PER RENTABLE S.F. PER YR	MONTHLY BASE  RENT	ANNUAL  BASE RENT
	FIRST LEASE TERM	$36.00	$7,794.00	$93,528.00

 

(q)     Initial Common Area Maintenance Charge, Initial Insurance Payment and the Initial Tax Payment: $1,732.00 per month ($8.00/Rentable Square Foot./yr.) commencing upon the Delivery Date as set forth in Article 1.1 (m) above.

 

 

 

 

(u)     Landlord's Broker: Fuller Real Estate

 

(v)     Tenant's Broker: David Hicks Lampert

 

(w)     Guarantor(s): Jim Smith, as set forth in Exhibit E to this Lease

3.2     Tenant's Investigation. Tenant hereby represents and warrants to Landlord that Tenant has made its own investigation and examination of all the relevant data relating to or affecting the Premises and is relying solely on its own judgment in entering into this Lease. EXCEPT AS OTHERWISE SET FORTH ABOVE IN PARAGRAPH 1.1(m), LANDLORD MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED OR OTHERWISE, WITH RESPECT TO THE CONDITION OF THE PREMISES, THE SHOPPING CENTER, OR THE LAND, THE LOCATION, USE, ZONING, DESCRIPTION, DESIGN, MERCHANTABILITY, SUITABILITY, OR FITNESS FOR USE FOR ANY PARTICULAR PURPOSE, CONDITION, OR DURABILITY, OR THE QUALITY OF THE MATERIAL OR WORKMANSHIP IN THE SHOPPING CENTER OR THE PREMISES. ALL INCIDENT TO THOSE MATTERS WILL BE BORNE BY TENANT. LANDLORD

 

 

 

 

WILL HAVE NO RESPONSIBILITY OR LIABILITY WITH RESPECT TO ANY DEFECT OR DEFICIENCY OF ANY NATURE IN THE PREMISES OR ANY PORTION OF THE PREMISES OR A PORTION OF THE SHOPPING CENTER, WHETHER PATENT OR LATENT. THE PROVISIONS OF THIS SECTION 3.2 ARE A PRINCIPAL INCENTIVE FOR LANDLORD TO ENTER INTO THIS LEASE AND HAVE BEEN NEGOTIATED AND ARE INTENDED TO BE A COMPLETE EXCLUSION AND NEGATION OF ANY WARRANTIES BY LANDLORD, EXPRESS OR IMPLIED, WITH RESPECT TO THE PREMISES OR ANY PORTION OF THE PREMISES, WHETHER ARISING UNDER APPLICABLE LAW NOW IN EFFECT OR IN EFFECT AFTER THE DATE  OF THIS LEASE. TENANT ACKNOWLEDGES AND REPRESENTS THAT NO SUCH REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE  AND ACCEPTS THE PREMISES IN ITS PHYSICAL CONDITION ON THE DELIVERY DATE.

 

 

3.4            Landlord's Work, Condition of Premises and Performance of Work. All rights of Tenant under this section will be subject to the requirements of all applicable building codes, zoning requirements, and federal, state, and local laws, rules and regulations. Construction of the Premises shall be in accordance with the Work Letter attached hereto as Exhibit C and incorporated by reference herein for all purposes. Upon termination of this Lease, at Landlord's option, Tenant will repair and restore the Premises to its former condition, at Tenant's expense, or any such improvements, additions, or alterations installed or made by Tenant, except Tenant's trade fixtures, shall become part of the Premises and the property of the Landlord. Tenant may remove its trade fixtures at the termination of this Lease provided Tenant is not then in default and provided further that Tenant repair any damage caused by such removal. Tenant shall be permitted entry onto the Premises from and after Landlord delivers possession of the Premises to tenant, but prior to the Commencement Date, for the purpose of installing Tenant's fixtures and for any other purpose permitted by Landlord.  Such early entry will be at Tenant's sole risk and subject to ail of the terms and provisions of this Lease as though the Commencement Date had occurred, including Tenant's obligation to provide insurance as set forth in Article 12, except for the payment of the Monthly Payment, which will commence on the Commencement Date.

 

3.5       Opening of Tenant's Store. Commencing on the Delivery Date, Tenant shall promptly perform, at its own cost and expense, all of Tenant's Work, shall equip the Premises with trade fixtures and all personal property necessary or proper for the operation of Tenant's business, and shall open for business as soon thereafter as possible, but in no event later than 

 

 

 

certificate of occupancy and/or other governmental sign-off or approval with respect to Tenant's Work prior to opening for business in the Premises.

 

ARTICLE 4 - MONTHLY PAYMENT

 

 

 

 

 

ARTICLE 5 - COMMON AREA

 

5.2       Use of Common Areas: Parking.

(a)            Tenant shall have the right, nonexclusive and in common with others, to use the Common Areas for the purposes for which the same were designed and to use the exterior paved driveways and walkways of the land for vehicular and pedestrian access to the Shopping Center. Tenant shall also have the right, non-exclusive and in common with other tenants of the Shopping Center and Landlord, to use the designated free parking areas of the land, if any, for the parking of automobiles and other vehicles of Tenant and its employees and business visitors; provided, that Landlord shall have the right to restrict or limit Tenant's  utilization of such parking areas in the event the same become overburdened and in such case to  allocate on a proportionate basis or assign parking spaces among Tenant and the other tenants of the Shopping Center.    Landlord shall have the right to establish reasonable regulations, applicable to all tenants, governing the use of or access to any interior or exterior Common Areas

 

 

5.3     CAM Charges.

Tenant agrees to pay as an additional charge each month its Proportionate Share of all costs of operating, maintaining, repairing and replacing the Common Areas in a manner deemed by Landlord appropriate, in Landlord's sole discretion ("Common Area Maintenance Charges" or "CAM"). Included among the costs and expenses which constitute CAM, but not limited thereto, shall be, at the option of Landlord, all costs and expenses of protecting, operating, managing, repairing, replacing, repaving, resealing, striping, lighting, cleaning, sweeping, painting, insuring (including, but not limited to, fire and extended coverage insurance on Common Areas, insurance protecting Landlord against liability for personal injury, death and property damage, business income, workers' compensation insurance, and any other insurance Landlord deems reasonable), removing of snow, ice and debris, trash removal (except for trash receptacles which are required to be maintained by the tenants for their respective premises or that are Tenant's sole responsibility), police protection and security and security patrol (provided that Landlord shall have no obligation to provide such services), fire  protection, regulating traffic, inspecting, repairing and maintaining of machinery and equipment used in the operation of the Common Areas, including heating, ventilating and air conditioning machinery and equipment, vehicles used in connection with operation, management or maintenance, cost and expense of inspecting, maintaining, repairing, replacing and cleaning water lines and storm and   sanitary drainage systems, sprinkler  and other fire protection systems, life safety and access systems; mechanical, electrical, gas, water, plumbing, telephone and irrigation systems, cost and expense of installing, maintaining, repairing and replacing the interior common area of the Shopping Center and the exterior of the building in or on the Shopping Center, including, but not limited to floors, non-structural elements of the roofs (including the roof membrane), skylights, walls, stairs and exterior/interior signs (including, without limitation, directional signs, sign pylons, markers and other lines), pest and/or termite control; cost and expense of installing, maintaining and repairing burglar or fire alarm systems in or on the Shopping Center, if installed, cost and expense of all landscaping and shrubbery,  all charges for utility services (excluding those charges which are separately metered to the tenants of the Shopping Center or that are Tenant's sole responsibility), amounts paid to contractors and subcontractors for work or  services performed in connection with any of the foregoing; charges or assessments of any association to which the Shopping Center is subject; total costs of compensation and benefits of personnel to implement the services referenced herein, legal, accounting and consulting fees and expenses (including, without limitation, permits and fees for promotional events), all alterations, additions, improvements and other capital expenditures for the Shopping Center (a) in order to conform to changes subsequent to the date of this Lease in any laws, ordinances, rules, regulations or orders of any applicable governmental authority, (b) which are intended as a cost or labor saving device or to effect other economies in the operation of the Shopping Center, or (c) which are reasonably determined by Landlord to be necessary or appropriate for the operation the Shopping Center, subject to amortization. of such costs at a market rate of interest over the

 

useful life thereof, as determined by Landlord; and persona !property taxes, licenses and permits, overhead costs, and management fees for the operation and maintenance of the Shopping Center; During the Lease Term, Tenant shall pay to Landlord on the first day of each month concurrently with the monthly Minimum Guaranteed Rental and for every month thereafter, 1/12th of the amount of such CAM estimated by Landlord for that particular year, as adjusted from time to time, in advance, to be due from Tenant. . Within a reasonable time after the close of each calendar year, Landlord shall give Tenant a statement (the "Statement") of the year's CAM and the total amount of the CAM which is Tenant's obligation, based on Tenant's Proportionate Share, as determined from time to time by Landlord. If such year's CAM is different than the estimated amount paid by Tenant, Tenant shall pay Landlord or Landlord shall credit Tenant, as applicable, within 30 days of the date of the Statement, Tenant's Proportionate Share which has either (1) not been paid by Tenant or (2) been overpaid by Tenant pursuant to the estimate. The estimate for Tenant's Proportionate Share of CAM as of the Delivery Date is $8.00 per square foot of the Premises or $1,732.00 per month. Following the first full calendar year, controllable CAM charges, (excluding but not limited to real estate taxes, insurance, utilities and snow and ice removal, which by their nature are not controllable expenses) shall not increase by more than five percent (5%) per year on a non-cumulative basis. CAM charges shall be paid monthly until such time as Landlord, in writing, reasonably adjusts the estimated CAM pursuant to this Article5. Notwithstanding anything to the contrary contained in this Lease, Landlord's failure to provide a reconciliation of CAM shall in no way release Tenant from its obligation to pay its Proportionate Share of CAM, or constitute a waiver of Landlord's right to assess and collect for CAM from Tenant in accordance with this section.

 

5.4     Gross-up. If the Shopping Center is less than ninety-five percent (95%) occupied at any time during the term of this lease, the CAM for that period may be grossed up to include all additional costs and expenses of operation, management, insuring, securing, and maintenance of the Property which Landlord determines that it would have paid or incurred during such period if the Shopping Center had been ninety-five percent (95%) occupied. The percent of occupancy of the Shopping Center will be determined based upon the actual number of rentable square feet of the Shopping Center that is under lease, divided by the gross rentable square feet of the Shopping Center. This gross up provision applies only to variable costs directly attributable to Tenant's occupancy and gross rent levels.

 

5.5   Proportionate Share. For purposes of calculating CAM, Tenant's Proportionate Share shall be that percentage stated in Article 1.1. Notwithstanding the foregoing, if any other tenant or occupant of the Shopping Center pays the cost of any service or item which is included in CAM directly, then the cost paid by such tenant or occupant as evidenced by a paid receipt shall be deducted from the CAM total cost before computing Tenant's Proportionate Share.

 

5.6   Audit. Tenant shall have the right, at Tenant's sole cost and expense, for a period of 60 days following receipt of the Statement, to audit the Landlord's records of CAM, provided, that all the following criteria are met: (a) before conducting any audit, Tenant must pay the full amount of any CAM due, and must not be in default of any other provisions of this Lease; (b) in conducting the audit, Tenant must utilize an independent certified public accountant ("CPA") experienced in auditing shopping center records, which CPA will be subject to Landlord's

 

 

such hours that Landlord may deem suitable that shall not interfere with the conduct of business at Landlord's main offices or such other site as Landlord may determine; (d) upon receipt thereof, Tenant will deliver to Landlord a copy of the audit report and all accompanying data; (e) Tenant will keep confidential all agreements involving the rights provided in this section and the results of any audit conducted hereunder, and shall cause the CPA conducting said audit to keep information confidential; (f) Tenant shall not conduct an audit more often than once each calendar year; (g) Tenant's audit rights shall not cover a period of time in excess of the one calendar year immediately preceding the audit; and (h) Tenant shall not use a contingency fee based auditor. Tenant's failure to conduct an audit within 60 days after receipt of the Statement shall be deemed conclusive that Landlord's assessments of CAM are correct. If such audit shall reveal that Landlord has overstated Tenant's Proportionate Share for such Year by 5% or more, Landlord shall pay ail of Tenant's reasonable costs and expenses of such audit. Any amount found by such audit to be due by Tenant shall be immediately paid from Tenant to Landlord, and any amount found by such audit to be due by Landlord to Tenant shall be credited against the next payments of CAM due by Tenant until credited in full.·

 

 

ARTICLE 6 - USE AND CARE OF THE PREMISES

 

6.1            Trade Name. The Premises may be used only for the Permitted Use, and for no other purpose. Notwithstanding the foregoing, Tenant shall not be entitled to use the Premises for any uses listed on Exhibit F, attached hereto. Tenant may not change the Permitted Use of the Premises except with the express prior written consent of the Landlord, which may be granted or denied in Landlord's sole discretion. Tenant shall pay all of Landlord's costs and expenses incurred in determining whether to consent to a change of use, including but not limited to, costs of reviewing and approving any related documentation and reasonable attorneys' fees. The consent of Landlord to one change of use shall not constitute a waiver of the necessity of Tenant to again obtain Landlord's consent to any subsequent change of use. Any material violation of this use shall be deemed a default by Tenant under this Lease. Tenant shall use in the transaction of business in the Premises the Trade Name specified in Section 1.1 above and no other trade name without the prior written consent of Landlord. Tenant shall not at any time leave the Premises vacant  (closed for longer than a one week time period), but shall in good faith continuously throughout the Term of this Lease conduct and carry on in the entire Premises the type of business for which the Premises are leased. Subject to a standard of reasonableness,   Tenant shall operate its business with a complete line of full selection and sufficient stock of first class merchandise of current style and type, with attractive displays and in an efficient, high class and reputable manner so as to produce the maximum amount of sales from the Premises, and shall, except during reasonable periods for repairing, cleaning and decorating, keep the Premises open to the public for business with adequate and competent personnel in attendance on all days and during all hours (including evenings) established by Landlord from time to time as store hours for the Shopping Center, and during any other days and hours when the Shopping Center

 

generally is open to the public for business, except to the extent Tenant may be prohibited from being open for business by applicable law, ordinance or governmental regulation. Tenant shall maintain an adequate number of capable employees and sufficient inventory to run its business in a first-class manner. Violation of this Section must be substantial and continuous in order to be deemed a material breach of this Lease. Tenant's local advertising shall refer to the business conducted at the Premises and shall mention the address of the Premises and the name of the Shopping Center. Tenant acknowledges that the identity of Tenant, the specific character of Tenant's business, the anticipated use of the Premises and the relationship between such use and other uses within the Shopping Center have been material considerations to Landlord's entry into this Lease. Any material change in the use of Tenant's business without the prior written consent of Landlord shall constitute an event of default under this Lease.

 

 

6.3            No Wholesale. Tenant shall not conduct within the Premises any fire, auction or bankruptcy sales or operate within the Premises a "Wholesale" or "factory outlet" store, a cooperative store, a "second-hand" store, a "surplus" store or a store commonly referred to as "discount house." Tenant shall not advertise that it sells products or services at a "discount," "cut-price," or "cut-rate" prices. Tenant shall not: (a) permit any objectionable or unpleasant odors to emanate from the Premises, (b) place or permit any radio, television, loudspeaker or amplifier on the roof or outside the Premises or where the same can be seen or heard from outside the Shopping Center or in the Common Area, (c) place an antenna, awning or other projection on the exterior of the Premises, (d) solicit business or distribute leaflets or other advertising material in the Common Area, (e) or take any other action which would constitute a nuisance or would disturb or endanger other tenants of the Shopping Center, or (f) unreasonably  interfere with other tenants' use of their respective premises, or (g) do anything which according to a reasonable standard would tend to injure the reputation of the Shopping Center.

 

6.4        No Waste. Tenant shall take good care of the Premises and keep the same free from waste at all times. Tenant shall keep the Premises and sidewalks, service ways and loading areas adjacent to the Premises neat, clean and free from dirt, rubbish, insects and pests at all times, and shall store all trash and garbage within the Premises, or within areas designated by Landlord.

 

 

 

where such alteration is dictated by the applicable authority as a result of Tenant's particular use of the Premises.

ARTICLE 7 - MAINTENANCE AND REPAIR OF THE PREMISES

7.1     Landlord's Obligation. Subject to reimbursement by Tenant pursuant to Article 5 hereof, Landlord shall keep, or cause to be kept, the foundation, the exterior walls (except store fronts, plate glass windows, doors, door closure devices, window and door frames, molding, locks and hardware, and that portion of the sidewalk directly adjacent to Tenant's storefront including snow removal therefrom, all of which are Tenant's responsibility and Tenant's sole expense), the roof of the Premises and structural components of the building in good repair, except for damage due to the negligence, acts or omissions of Tenant, its agents, employees, subtenants, licensees, invitees and concessionaires, which repairs shall be made by Tenant, at Tenant's sole expense. In the event that the Premises should become in need of repairs required to be made by Landlord hereunder, Tenant shall give prompt written notice thereof to Landlord, and Landlord shall commence required repairs as soon as reasonably practicable. This section shall not apply in case of damage or destruction by fire or other casualty or condemnation or eminent domain or force majeure, in which event the obligations of Landlord shall be controlled by Articles 14 and 15. Except as otherwise provided in this section, Landlord shall not be obligated to make repairs, replacements or improvements of any kind upon the Premises, or to any equipment, merchandise, stock in trade, facilities or fixtures therein, all of which shall be Tenant's responsibility, but Tenant shall give Landlord prompt written notice of any accident, casualty, damage or other similar occurrence in or to the Premises or the Common Area of which Tenant has knowledge. Landlord's costs and expenses to comply with this section may be included in CAM. Notwithstanding anything to the contrary contained herein, Landlord's obligation hereunder is limited to repairs specified in this Section 7.1 only, and Landlord shall have no liability for any damages or injury arising out of any condition or occurrence causing a need for such repairs unless such damage or injury occurred as a result of the gross negligence of Landlord, its agents, employees or assigns.

 

7.2   Tenant's Obligations.

(a)            Tenant, at its sole cost and expense, shall at all times keep the Premises (including all entrances and vestibules) and all partitions, windows and window frames and moldings, signs, glass, doors, door openers, fixtures, equipment and appurtenances thereof (including lighting, electrical, plumbing, heating, ventilating and air conditioning fixtures and systems (the "HVAC") servicing the Premises exclusively and any other mechanical equipment and  appurtenances serving the Premises exclusively), and all other parts of the Premises not required herein to be maintained by Landlord, in good order, condition and repair, clean (including redecorating), orderly, sanitary and safe, damage by ordinary wear and tear and unavoidable casualty excepted (including, but not limited to, doing such things, at Tenant's sole cost and expense, as are necessary to cause the Premises to comply with the applicable laws, ordinances, rules, regulations, directions, requirements and orders of governmental and public bodies and agencies which are now in force or which may hereafter be in force, which shall impose any duty upon Landlord or Tenant with respect to the use, occupation or alteration of the Premises, such as, but not limited to, OSHA and ADA). Tenant shall furnish, maintain and

 

replace all electric light bulbs, ballasts, tubes and tube casings within the Premises and serving the Patio.

(b)        Tenant shall arrange for the regular pickup of such trash and garbage at Tenant's expense. The size, design and color of any receptacles may be prescribed by Landlord. Receiving and delivery of goods and merchandise, and removal of garbage and trash, shall be made only in the manner and areas prescribed by Landlord. All of Tenant's refuse and other waste materials shall be segregated by category of waste in accordance with such regulations as Landlord may from time to time adopt. Notwithstanding anything to the contrary contained in this Lease, Landlord may, at its sole option, arrange for collection of all trash and garbage in the Shopping Center and should Landlord exercise such election, Tenant's Proportionate Share of the cost thereof will be part of the CAM. Tenant shall not operate an incinerator or hum trash or garbage within the Shopping Center. Tenant shall, at its sole cost and expense, provide its own janitorial service.

 

(c)        Tenant shall maintain in a clean condition its signs, metal work, doors and the interior and exterior of all windows in the Premises. In the event Landlord determines that windows for which Tenant is responsible are not being so maintained, it shall have the right to clean the same or cause the same to be cleaned at Tenant's expense. Tenant, shall be responsible for the maintenance, repair and restoration (including replacement, if necessary) of any windows or other glass surfaces within the Premises. Tenant shall remove any graffiti from the Premises or the Patio Area within forty-eight (48) hours from the occurrence of such graffiti, and shall repair any damage caused by vandalism to the Premises or Patio Area within ten (10) days after the occurrence of such damage.

 

(d)      Tenant shall be responsible for the cleaning and maintenance of any grease trap serving the Premises and shall enter into, and furnish Landlord a copy of upon request, a grease trap cleaning contract reasonably acceptable to Landlord. Any grease-hood ventilation equipment in the Premises shall include fire protection devices approved by Landlord and a fine pre-filter and activated charcoal filters or their equivalent. All kitchen ventilating equipment shall be so operated and maintained as to prevent the emission of odors and smoke from the Premises, and if the exhaust requirements of Tenant's use exceed the capacity of the kitchen ventilating equipment, Tenant shall install and use an electrostatic precipitator or comparable state of the art equipment to achieve the requisite standard of emission control, as determined by Landlord, so that no such emissions shall enter into the Shopping Center's air conditioning system or be discharged into any other vents or flues of the Shopping Center or annoy any of the tenants of the Shopping Center or adjacent properties. The design, location and installation of such equipment shall be subject to Landlord's approval. The discharge of any fumes, vapors and odors, which by law or by rule or regulation of any department or agency having jurisdiction must be discharged into a separate stack or flue, will not be permitted unless Tenant, at Tenant's sole expense, shall provide for such discharge in a proper manner to the outside air if legally permissible and if not legally permissible, then in some other lawful manner. Tenant shall not discharge or permit to be discharged any acids, vapors or other materials into the waste lines, vents or exterior surfaces of the Shopping Center which will damage them. The discharge of fumes, vapors and odors will only be permitted on the Shopping Center exterior at Shopping Center mechanical room floors and only at such locations on these floors where space and

(ventilation capacity is available without contaminating the intake or other mechanical systems.

 

If Landlord so elects, Tenant shall enter into maintenance and service contracts for the filter and exhaust elements of the heat, ventilating and air conditioning equipment with maintenance and service companies approved by Landlord, and Tenant shall not terminate or amend the contracts without Landlord's prior approval, which approval shall not be unreasonably withheld.

(e)     Tenant shall install and maintain an impervious membrane in the floor areas of the kitchen, dishwashing, bar and restroom areas in the Premises and shall otherwise take such action and conduct its operations in such a manner that no liquid seeps from the Premises to the space of any other tenant or to any other portion of the Shopping Center. Tenant shall cause to be maintained, at its expense and in good operating condition and repair, all grease traps and other equipment installed in the Premises for kitchen waste disposal. If Landlord determines in its reasonable judgment that such equipment is not being so maintained, Tenant shall retain the services of Landlord or a maintenance company retained by Landlord to perform such maintenance and Tenant shall reimburse Landlord for the cost thereof upon demand.

7.3      Maintenance Contracts. Landlord may, at Landlord's sole discretion, enter into a mechanical system inspection contract with a reputable service company, and Tenant shall pay its Proportionate Share of the costs of said service contract. Tenant shall pay its Proportionate Share of all costs of any replacements or repairs resulting from determinations made by the inspection service.

Landlord may, in its sole discretion, require Tenant to enter into a regularly scheduled preventive maintenance/service contract with a maintenance contractor for servicing the HVAC equipment within the Premises. The maintenance contractor must be approved by Landlord. The service contract must include all services suggested by the equipment manufacturer within the operation/maintenance manual and must become effective within 30 days of notification from landlord that the HVAC contract shall be Tenant's responsibility. A copy of the contract is to be delivered to Landlord within the 30-day period. Should Tenant fail to enact such maintenance contract, Landlord may do so on Tenant's behalf, and Tenant shall pay Landlord upon demand such associated costs plus fifteen percent (15%). Within the thirty (30) day period preceding

move-out by Tenant, Tenant shall have the systems and equipment checked and serviced to ensure proper functioning and shall furnish Landlord satisfactory proof thereof upon request.

 

7.4     Landlord's Repair Rights. If Tenant refuses or neglects to make repairs or to maintain the Premises, or any part thereof, in a manner reasonably satisfactory to Landlord, Landlord shall have the right, but not the obligation, upon giving Tenant written notice of its election to do so, to make such repairs or perform such maintenance on behalf of, and for the account of, Tenant. Such work shall be paid for by Tenant, as Additional Rent, promptly upon receipt of a bill therefore, with a 15% administration charge added to the total.

7.5     End of Term. At the end of this Lease, or upon Landlord's exercise of its right, upon an event of default, to repossess the Premises without terminating this Lease, Tenant will promptly quit and surrender the Premises broom-clean, in good order and repair, ordinary wear and tear excepted, and shall surrender all keys for the Premises to Landlord and shall inform Landlord of all combinations on locks, safes and vaults, if any, in the Premises. Upon move-out by Tenant, should the Premises require any repairs which are the responsibility of Tenant hereunder, Landlord shall have the right to make such repairs at Tenant's sole cost. If Tenant is

 

not then in default, Tenant may remove from the Premises any trade fixtures, equipment and movable furniture placed in the Premises by Tenant pursuant to Article 8, whether or not such trade fixtures or equipment are fastened to the Premises, so long as such removal is done in accordance with plans approved by Landlord. Notwithstanding the foregoing, Tenant will not remove any trade fixtures or equipment without Landlord's prior written consent if the removal of such fixtures or equipment will result in impairing the structural strength of the Premises. Whether or not Tenant is in default, Tenant will remove such alterations, additions, improvements, trade fixtures, equipment and furniture as Landlord has requested in accordance with Article 8 and in accordance with  plans approved by Landlord.All trade fixtures, equipment, furniture, inventory, effects, alterations, additions and improvements on the Premises after the end of the Lease Term will be deemed conclusively to have been abandoned and may be appropriated, sold, stored, destroyed or otherwise disposed of by Landlord without written notice to Tenant or any other person and without obligation to account for them or to pay any proceeds to Tenant for such items. Tenant will pay Landlord for all expenses incurred in connection with the removal of such property, including, but not limited to, the cost of repairing any damage to the Shopping Center or Premises caused by the removal of such property. Tenant's obligation to observe and perform this covenant will survive the expiration or other termination of this Lease.

ARTICLE 8 - ALTERATIONS

 

8.1    Alterations. Tenant will not make or allow to be made any alterations, additions or improvements (collectively "Alterations") in or to the Premises without the prior written consent of Landlord. Alterations to the Premises shall be done by Landlord or by contractors approved in writing by Landlord, at Tenant's sole cost and expense. If Landlord approves Tenant's proposed Alterations and agrees to permit Tenant's contractor to do the work, Tenant's contractor must first furnish to Landlord insurance coverage against such risks and in such amounts as Landlord may reasonably require, including, but not limited to, General Liability, Builder's Risk, and Workman's Compensation Insurance (as required under the Workman's Compensation Act of Colorado), issued by such companies as Landlord may approve and naming Landlord as an additional insured on all such policies. All Alterations permitted by Landlord must conform to all requirements of all governmental entities having jurisdiction. Tenant's contractor shall obtain all applicable building and occupancy permits required by law. Landlord shall have the right, at Tenant's expense, not to exceed $500.00 per each such inspection, to have Tenant's contractor's work inspected by architects and engineers. At any time Tenant either desires to, or is required to, make repairs or Alterations in accordance with this Lease, Landlord may, in addition to its other options, require Tenant, at Tenant's sole cost  and expense, to obtain and provide to Landlord a lien and completion bond (or such other applicable bond as reasonably determined by Landlord) in an amount equal to one and one-half times the estimated cost of such improvements to insure Landlord against risk and liability, including but not limited to liability for mechanics and materialman's lien, and to insure the' completion of the work. Tenant agrees to indemnify Landlord and hold it harmless against any\ loss, liability or damage resulting from Tenant's repairs or alterations and to conform with all the requirements of Section 19.3. Tenant further agrees that plans and drawings for installation or revision of mechanical, electrical or plumbing systems shall be designed by an engineer approved by Landlord, and bear an engineer's seal, such design work to be done at Tenant's expense. Notwithstanding anything to the contrary contained herein, in no event shall Tenant be permitted to remove or substantially alter any restrooms in the Premises.

 

 

8.2      Removal of Alterations. All Alterations (which do not include equipment or furniture of Tenant), whether made with or without Landlord's consent, made in or upon the Premises, either by Landlord or Tenant, shall be Landlord's property upon installation and shall remain on the Premises without compensation to Tenant unless Landlord shall, by written notice within 30 days after the expiration or termination of this Lease, elect to have the Alterations removed. If Landlord elects to have the Alterations removed and Tenant fails to remove the same and restore the Premises to the condition that existed prior to the installation of the Alterations, then Landlord may cause same to be removed and the Premises restored at Tenant's expense, and Tenant agrees to reimburse Landlord, on demand, for the cost of such removal and restoration, together with any and all damages which Landlord may suffer and sustain by reason of the failure of Tenant to remove the same.

 

8.3      Removal of Fixtures. Upon the expiration or other termination of this Lease, Tenant will remove all furniture, movable trade fixtures and persona! property (collectively "Fixtures") of Tenant. If Tenant fails to remove its Fixtures on or before the date of expiration or termination of this Lease, the Fixtures shall, at the option of Landlord, either become the property of Landlord, or be removed from the Premises and disposed of by Landlord, at Tenant's sole cost and expense.        

 

8.4     Standard of Alterations. All Alterations, installations, removals and restoration shall be accomplished in a good and workmanlike manner so as not to damage the Premises or the Shopping Center, in compliance with all governmental requirements, and the requirements of any contract or deed of trust to which the Landlord may be a party, and in such manner as not to disturb other tenants in their use and occupancy of the Shopping Center.  

 

8.5      Roof Alterations. Tenant agrees that all venting, opening, sealing, waterproofing of the roof made in connection with any Alterations requested by Tenant shall be performed by Landlord's roofing contractor, at Tenant's expense. Upon completion of any Alterations to the roof, Tenant shall furnish to Landlord a certificate from Landlord's roofing contractor that all such Alterations approved by Landlord have been completed in accordance with the plans and specifications approved by  Landlord. 

 

ARTICLE 9 - LANDLORD'S RIGHT OF ACCESS; USE OF ROOF

9.1      Right  of Access. Landlord, its agents, representatives and designees shall have the right to enter the Premises, at any time, to examine and inspect the same, or to make such repairs, additions or alterations as Landlord may deem necessary or proper for the safety, improvement or preservation thereof. Landlord shall also have the right to enter the Premises upon reasonable prior notice during Tenant's regular business hours, and to exhibit the same to prospective purchasers, mortgages, lessees and tenants. During the 180 days prior to the Expiration Date, Landlord may place upon the Premises "For Lease" or other similar signs which Tenant shall permit to remain thereon displayed.

 

9.2      Use of Roofs and Walls. Notwithstanding anything to the contrary contained in this Lease, Landlord shall have the exclusive right to use all or any part of the roof or exterior walls of the Premises for any purpose, including, but not limited to: (a) erecting signs or other  structures on or over all or any part of the same; (b) erecting scaffolds and other aids to the

 

construction, maintenance and installation of the same; and (c) installing, maintaining, using, repairing and replacing pipes, ducts, conduits, and wires and all other mechanical equipment leading through, to or from the Premises and serving other parts of the Shopping Center in locations which do not materially interfere with Tenant's use of the Premises. Use of the roof above the Premises is reserved for Landlord.

ARTICLE 10 - SIGNS; STORE FRONTS

10.1    Signage. Tenant shall be allowed to install the maximum signage allowed by the local governing authorities, subject to Landlord's approval. In addition, Tenant  shall have signage on the pylon sign fronting Colorado Boulevard, subject to Landlord's approval. Tenant shall not, without Landlord's prior written consent, which shall not be unreasonably withheld in light of the agreements set forth in this paragraph: (a) make any changes to or paint the store front; (b) install any exterior lighting, decorations or paintings; or (c) erect or install any signs, window or door lettering, placards, decorations or advertising media of any type which can be viewed from the exterior of the Premises, excepting only dignified displays of customary type for its display windows. All signs, decorations and advertising media shall conform in all respects to the sign criteria established by Landlord, in its sole discretion, for the Shopping Center, and shall be subject to the prior written approval of Landlord as to construction, method of attachment, size, shape height, lighting, color and general appearance. All signs shall be kept in good condition and in proper operating order at ail times. Landlord reserves the right to designate a uniform type of sign for the Shopping Center to be installed and paid for by Tenant. The signage criteria for the Shopping Center, as the same may be amended from time to time in Landlord's sole discretion, is set forth on Exhibit D attached hereto. If, however, Tenant bas installed a Sign to Landlord's requirements and approval, Tenant shall not be required to modify that sign for five (5) years, provided that any such sign remains in compliance with governing codes and ordinances. If Tenant is in default hereunder and such default remains uncured for at least 30 days, Landlord shall have the right to erect on the Premises signs indicating that the Premises are available "for lease."

 

ARTICLE 11 - UTILITIES

11.1        Procurement of Utilities. Landlord agrees to cause to be provided and maintained the necessary mains, conduits and other facilities necessary to supply water, electricity, natural gas, telephone service and sewerage service to the boundary of the Premises.

 

11.2       Utilities. Tenant shall promptly pay all charges for electricity, water, gas, telephone service, sewerage service  and other utilities furnished to the Premises and shall promptly pay any maintenance charges therefore. Tenant shall reimburse Landlord (as part of CAM) for its Proportionate Share as set forth in Section 1.1 of any utilities paid by Landlord which are allocable to Tenant but not directly metered to Tenant. Landlord reserves the right to

 

directly meter Tenant's consumption of utilities. Landlord may, at its option, furnish one or more utility services to Tenant, and in such event Tenant shall purchase the services from Landlord, and shall pay on demand as Additional Rent the rates established therefore by Landlord. Landlord may at any time discontinue furnishing any such service without obligation to Tenant other than to connect the Premises to the public utility, if any, furnishing such service.

 

 

 

ARTICLE 12 - INDEMNITY, PUBLIC LIABILITY INSURANCE AND FIRE AND EXTENDED COVERAGE INSURANCE

 

12.1           Indemnification. Landlord shall not be liable to Tenant or to Tenant's employees, agents, visitors, customers, co-signees or invitees or to any other person or entity, whomsoever, for any injury to person or damage to or loss of property: (a) occurring within the Common Area if caused by the negligence or misconduct of Tenant, its employees, subtenants, licensees or concessionaires, or occurring within the Premises if caused by any other person entering the Shopping Center under the express or implied invitation of Tenant; (b) arising out of the use of  the Premises by Tenant and the conduct of its business therein; (c) arising out of any breach or default by Tenant in the performance of its obligations hereunder; or (d) resulting from any other cause  within the Premises except Landlord's gross negligence.  Tenant hereby agrees to indemnify and hold harmless Landlord, and Landlord's employees and agents from and against, any and all demands, claims, causes of action, fines, penalties, damages (including consequential damages), liabilities, judgments, and expenses (including, without limitation, attorneys' fees) and hereby agrees to indemnify Landlord and hold it harmless from any loss, expense or claims   arising out of any such damage or injury where such damage or injury was not caused by Landlord's gross negligence or willful neglect. If any action or proceeding is brought against

 

Landlord, its employees or agents by reason of any such claim for which Tenant has indemnified Landlord, Tenant, upon written notice from Landlord, will defend the same at Tenant's expense, with counsel satisfactory to Landlord, but at a reasonable hourly expense. As a material part of the consideration to Landlord for this Lease, Tenant hereby assumes all risk of damage to property or injury to persons in, upon and about the Premises from any cause, except due to the gross negligence of Landlord or its agents, employees or assigns, and Tenant hereby waives ail claims with respect thereto against Landlord.

12.2     Insurance.

 

 

(i)           Bodily injury and property damage liability insurance, with a combined single occurrence limit of not less than $2,000,000 written on an "occurrence basis". All such insurance will be equivalent to coverage offered by a Commercial General Liability form including, without limitation, personal injury and contractual liability coverage for the performance by Tenant of the indemnity agreements set forth in this Lease;

 

 

(iii)        Worker's compensation insurance insuring against and satisfying Tenant's obligations and liabilities under the worker's compensation laws of the state in which the Premises are located, including employer's liability insurance in the limits required by the laws of the state in which the Shopping Center is located; and

 

(iv)        If Tenant operates owned, hired or non-owned vehicles on the Shopping Center, comprehensive automobile liability will be carried at a limit of liability not less than $500,000 combined bodily injury and property damage.

 

 

 

account. Tenant's Proportionate Share of the cost of Insurance on the Shopping Center shall be computed by multiplying the cost of Insurance by Tenant's Proportionate Share as set forth in Section 1.1 Notwithstanding anything to the contrary contained in the Lease, Landlord's failure to provide a reconciliation of Insurance as required by this section shall in no way release Tenant from its obligation to pay its Proportionate Share of Insurance, or constitute a waiver of Landlord's right to assess and collect for such Proportionate Share of Insurance from Tenant in accordance with this section.

 

ARTICLE 13-NON-LIABILITY FOR CERTAIN DAMAGES

 

13.1         Waiver. Landlord, its agents and employees shall not be liable to Tenant, its employees, agents, invitees, licensees or visitors, or any other person or entity whomsoever for any injury to person or damage to property caused by: (a) the failure of any service provided by Landlord (including security service and devices (b) any defects in, or failure of, equipment, pipes or wiring, or broken glass" or (c) the backing up, or leaking of, drains, gas, water, steam, electricity or oil, into the Premises. Landlord shall not be liable to Tenant or any other person or entity whomsoever for any loss or damage that may be occasioned by or through the acts or omissions of other tenants of  the Shopping Center, or of any other persons or entities whomsoever, excepting only duly authorized employees and agents of Landlord. With respect to latent or patent defects in the Premises, Landlord's liability shall extend only to work performed by Landlord, if any, and shall not extend beyond eighteen months from the Commencement Date, whether or not such defects are discovered within such one-year period. Tenant shall indemnify and hold Landlord harmless from any loss, cost, expense or claims arising out of any injury or damage referred to in this section for which Landlord is stated not to be liable.

 

13.2       Limitation on Recourse. Tenant specifically agrees to look solely to Landlord's interest in the Shopping Center for the recovery of any judgments from Landlord. It is agreed that Landlord (and its shareholders, joint venturers, and partners, and their shareholders, joint venturers and partners and all of their officers, directors and employees) will not be personally liable for any such judgments. The provisions contained in the preceding sentences are not intended to, and will not, limit any right that Tenant might otherwise have to obtain injunctive relief against Landlord or relief in any suit or action in connection with enforcement or collection of amounts which may become owing or payable under or on account of insurance maintained by Landlord.

ARTICLE 14 - FIRE AND OTHER CASUALTY

14.1       Damage. Except as provided below, in case of damage to the Premises or other portions of the Shopping Center by tire or other insured casualty, Landlord shall repair the damage. Such repair work shall be commenced promptly following notice of the damage and completed with reasonable diligence, taking into account the time required for Landlord to effect a settlement with and procure insurance proceeds from the insurer, except for delays due to Force Majeure.

 

 

so notify Tenant within a reasonable time (but in no event more than 90 days) after such determination and either Landlord or Tenant shall be entitled to immediately terminate this Lease. Further, if Landlord reasonably determines that the Shopping Center is damaged to such extent as to make repair thereof unfeasible or that the length of the Lease Term remaining after restoration would make restoration impractical (in either case, whether for economic or other reasons), Landlord shall have the right to terminate this Lease upon written notice to Tenant delivered within 30 days after the casualty.

 

 

 

 

14.6            Prorations. If this Lease is terminated pursuant to this Article, all rent shall be apportioned equitably and paid in full by Tenant to Landlord to the date of the casualty, regardless of whether the termination is effective subsequent to the casualty. This provision shall not relieve Tenant from liability to Landlord for damages (including damages arising due to early termination of this Lease) arising out of Tenant's negligence or other tortious conduct. In the event of a fire or other casualty damage not arising out of the negligence or other tortious

 

conduct of Tenant, its customers, agents, employees, vendors, clients or invitees which deprives Tenant of the use of all or a portion of the Premises, there shall be a proportionate reduction in the Monthly Payment, as reasonably determined by Landlord ..

 

ARTICLE 15 - CONDEMNATION

15.1      Condemnation.

(a)       If any taking by condemnation, or sale in lieu thereof, pursuant to an exercise of a power of eminent domain ("Condemnation") occurs with respect to the Shopping Center, or any portion thereof, which would leave the remainder of the Shopping Center unsuitable for use comparable (economically or otherwise) to its use prior to the Condemnation in Landlord's reasonable judgment, then either Landlord or Tenant may terminate this Lease.

 

(b)      If any Condemnation occurs with respect to the entire Premises, or more than 25% thereof, or such portion of the Premises as renders the remainder thereof unsuitable for use comparable (economically or otherwise) to its use prior to the Condemnation in Landlord's reasonable judgment, then Landlord or Tenant may terminate this Lease upon written notice to Tenant within 30 days after the date of the Condemnation.

 

(c)       If Landlord determines that the compensation awarded for Condemnation, available for restoration of the Shopping Center or the Premises falls materially below the cost to pay the cost of restoration, or if such award is required to be applied on account of any Mortgage or Underlying Lease, or if Landlord determines that the length of the Lease Term remaining after restoration would make restoration impractical (whether for  economic or  other reasons), Landlord may terminate this Lease upon written notice to Tenant given within 30 days after the date of the Condemnation. 

 

(d)     Any termination of this Lease pursuant to this section shall be effective upon the earlier of the date title to or possession of the condemned real estate vests in the condemnor. All rent shall be apportioned equitably and paid in full by Tenant to Landlord to that  date of termination. If this Lease is not terminated as set forth herein and the event of a Condemnation deprives Tenant of the use of a portion of the Premises, there shall be a proportionate reduction in the Monthly Payment, as reasonably determined by Landlord.

 

(e)      All compensation awarded for any Condemnation of the Shopping Center, the Premises or any portion thereof, shall be the property of Landlord, and Tenant shall have no claim thereto, the same being expressly waived by Tenant. Tenant assigns to Landlord all rights to compensation for damages, if any, sustained by Tenant on any Condemnation, except for a claim relating to Condemnation of equipment, fixtures and/or improvements which Tenant, on expiration of the Lease Term, is entitled to remove, and only so long as a separate award is made by the condemnor to Tenant for such items.

 

(f)      If this Lease is not terminated as provided above, Landlord shall make such repairs, if any, as are reasonably necessary to restore the remaining part of the Premises and the Common Area not condemned to tenantable condition. Landlord, in so doing, shall not be required to expend more than the net amount Landlord reasonably expects to be available for 7storation of the Premises, unless Tenant agrees to pay the amount of the excess expenditure

 

 

and before commencement of the restoration, provides Landlord with reasonable security for such payment by Tenant. Restoration, if any, shall begin promptly after Tenant vacates that part of the Premises condemned. The repairs shall be completed with reasonable diligence, subject, however, to delays incident to Force Majeure.

 

ARTICLE 16 - ASSIGNMENT AND SUBLETTING

16.l      By Tenant.

 

 

 

 

 

 

 

 

 

 

(e)     If Landlord consents to a proposed assignment or sublease, Landlord will have the right to approve the form of assignment or sublease, as the case may be, which will provide among other things that Tenant will remain liable under this Lease. Further, if Landlord consents to any subletting or assignment by Tenant as above provided, and subsequently any payments received by Tenant under any such sublease are in excess of the Monthly Payments payable by Tenant under this Lease, or any additional consideration (other than consideration which is directly or indirectly related to the sale of the business) is paid to Tenant by the assignee under any such assignment, then 100% of such excess payments under such sublease or such additional consideration for such assignment shall be due and payable by Tenant to Landlord as Additional Rent. In determining whether payments under any approved sublease exceed the Monthly Payments under this Lease, all amounts paid or payable and received or receivable by Tenant under or in connection with such sublease, including but not limited to commissions and shall be taken into account.    

 

(f)            In the event Landlord consents to any assignment of this Lease by Tenant as provided herein, Landlord shall have the right, in its sole determination, to increase the Security Deposit required in this Lease.

 

(g)         Any sublease will require that the subtenant will comply with all applicable terms and conditions of this Lease. Any assignment will include, without limitation, an assumption by the assignee of all of the terms, covenants and conditions which this Lease   requires Tenant to perform. Landlord's consent will not be effective unless and until Tenant delivers to Landlord an original duly executed assignment or sublease, as the case may be, in the form approved by Landlord, and pays Landlord the amounts required herein. In the event of   default by any assignee of Tenant or any successor of Tenant in the performance of any of the terms hereof, Landlord may proceed directly against Tenant without the necessity of exhausting remedies against such assignee or successor. No permitted subtenant may assign or encumber its sublease or further sublease ail or any portion of its subleased space, or otherwise permit the subleased space or any part of its subleased space to be used or occupied by others, without Landlord's prior written consent in each instance. No permitted assignee (or subtenant) at this Lease may further assign this Lease (or sublet the subleased premises) without Landlord's prior written consent.

 

(h)      Tenant agrees to reimburse Landlord for all reasonable expenses incurred in connection with any assignment or subletting, including but not limited to, attorneys' fees, lender approval fees or such other reasonable and customary fees incurred.

 

(i) In addition to reimbursement of expenses as set forth in subsection (h) above, at the time of Tenant's request for Landlord's consent to an assignment of this Lease, or subletting of all or a portion of the Premises, Tenant shall deliver to Landlord a processing fee which constitutes the actual reasonable expenses of Landlord in processing the request, but in no event shall Tenant pay to Landlord more than $5,000.00 for the processing fee. Furthermore, Landlord shall attempt to keep its processing costs to a reasonable minimum. The Processing Fee shall be nonrefundable when paid regardless of whether Landlord consents to, or objects to, the proposed assignment or sublease.

 

(j)  The transfer of a majority of the issued and outstanding capital stock of any corporate tenant or subtenant  of this Lease or a majority of the total interest in any partnership tenant or subtenant, however accomplished, and whether in a single transaction or in a series of related or unrelated transactions, will be deemed an assignment of this Lease or of such sublease requiring Landlord's prior written consent in each instance. For purposes of this Article 16, the transfer of outstanding capital stock of any corporate tenant will not include any sale of such stock by persons (other than those deemed "insiders" within the meaning of the Securities Exchange Act of 1934, as amended) effected through "over-the-counter-market" or through any recognized stock exchange.

 

(k) If Tenant believes that Landlord has unreasonably withheld its consent pursuant to this Article 16, Tenant's sole remedy will be to seek a declaratory judgment that Landlord has unreasonably withheld its consent or an  order of specific performance or mandatory injunction of the Landlord's agreement to give its consent.

 

16.2    By Landlord. In the event of the transfer and assignment by Landlord of its interest in this Lease and in the Shopping Center containing the Premises to a person expressly assuming Landlord's obligations under this Lease, Landlord shall thereby be released from any further obligations hereunder, and Tenant agrees to look solely to such successor in interest of the Landlord for performance of such obligations. Any security given by Tenant to secure performance of Tenant's obligations hereunder shall be assigned and transferred by Landlord to such successor in interest, provided however that Tenant is not in default at the time of any such transfer or assignment, and Landlord shall thereby be discharged of any further obligation relating thereto. The term "Landlord" shall mean only the owner for the time being of the Shopping Center, and in the event of transfer by such owner of its interest in the Shopping Center, such owner shall thereupon be released and discharged from all covenants and obligations of Landlord thereafter accruing, but such covenants and obligations that arise  during any owner's period of ownership shall be binding during the Lease Term upon such new owner; provided, however, that Tenant's failure to disclose any outstanding obligations of Landlord pursuant to any notification required to be made by this Lease to any prospective buyer shall constitute a waiver of Tenant's rights against that prospective buyer and any successors or assigns thereof. Upon such an assignment, Tenant shall retain its rights against the transferor Landlord for obligations arising under this Lease during the period of the transferor Landlord's ownership of the Shopping  enter.    

 

 

ARTICLE 17 - PROPERTY TAXES

 

 

 

such excess and credit it to Tenant's account. Tenant's Proportionate Share of the Taxes on the Shopping Center shall be computed by multiplying the Taxes by Tenant's Proportionate Share as set forth in Section 1.1. Notwithstanding anything to the contrary contained in the Lease, Landlord's failure to provide a reconciliation of Taxes as required by this section shall in no way excuse Tenant from its obligation to pay its Proportionate Share of Taxes or constitute a waiver of Landlord's right to assess and collect for Proportionate Share of Real Estate Taxes from Tenant in accordance with this section.

 

 

 

 

ARTICLE 18 - DEFAULT BY TENANT AND REMEDIES

 

 

 

 

it so elects, relet the Premises on Landlord's terms and receive the rent therefore; and Tenant agrees to pay to Landlord, on demand, any deficiency that may arise by reason of such reletting for the remainder of this Lease term.

 

 

18.4            No Surrender. Exercise by Landlord, in accordance with applicable law, of any one or more remedies hereunder granted or otherwise available shall not be deemed to be an acceptance of surrender of the Premises by Tenant, whether by agreement or by operation of law, it being understood that such surrender can be effected only by the written agreement of Landlord and Tenant. No such alteration of locks or other security devices and no removal or other exercise of dominion by Landlord over the property of Tenant or others at the Premises shall be deemed unauthorized or constitute a conversion, Tenant hereby consenting, after any event of default, to the aforesaid exercise of dominion over Tenant's property within the Premises. All claims for damages by reason of such re-entry and/or repossession and/or alteration of locks or other security devices in accordance with applicable law are hereby waived. Tenant agrees that any re-entry by Landlord may be pursuant to judgment obtained in forcible detainer proceedings or other legal proceedings as Landlord may elect, and Landlord shall not be liable in trespass or otherwise for proceeding in accordance with applicable law.

 

18.5       Tenant's Liability.

 

(a)            In the event Landlord elects to terminate the Lease by reason of an event of default, then notwithstanding such termination, and subject to applicable Colorado law, Tenant shall be liable for and shall pay to Landlord, at the address specified for notice to Landlord herein the sum of all rental and other indebtedness accrued to date of such termination, plus, as damages, an amount equal to the excess, if any, of (1) the total rental (Minimum Guaranteed Rental computed as stated below) plus Tenant's CAM, Insurance Payment and Tax Payment hereunder for the remaining portion of the Lease Term (had such term not been terminated by Landlord prior to the Expiration Date stated in Section 1.1) discounted to present value at the rate of eight percent per year, over (2) the then present value (again discounted at eight percent per year) of the then fair rental value of the Premises for such period.

 

(b)              In the event that Landlord elects to repossess  the Premises without terminating this Lease in accordance with applicable law, then Tenant shall be liable for and shall pay to Landlord at the address specified for notice to Landlord herein all rental and other indebtedness accrued to the date of such repossession, plus rental required to be paid by Tenant to Landlord during the remainder of the Lease Term until the date of expiration stated in Section 1.1 diminished by arty net sums thereafter received by Landlord through reletting the Premises during said period (after deducting expenses incurred by Landlord as provided in subsection (c) below). In no event shall Tenant be entitled to any excess of any rental obtained by reletting

 

over and above the rental herein reserved. Actions to collect amounts due by Tenant to Landlord as provided in this section may be brought from time to time, on one or more occasions, without the necessity of Landlord's waiting until expiration of the Lease Term.

 

 

 

 

 

 

provision of this Lease, or in the event of any other liability of Landlord arising under this Lease, Tenant agrees to look solely to the equity or interest then owned by Landlord in the land and improvements which constitute the Shopping Center, and in no event shall any deficiency judgment of any kind be sought or obtained against Landlord if the equity or interest then owned by Landlord in the land and improvements which constitute the Shopping Center is insufficient to cover any judgment against Landlord.

 

 

 

 

ARTICLE 19 - SECURITY DEPOSIT; LANDLORD'S LIEN; MECHANICS LIENS

 

19.l      Security Deposit. Upon receipt from Tenant of the Security Deposit specified in Section 1.1, such Security Deposit shall be held by Landlord without interest as security for the performance by Tenant of Tenant's covenants and obligations under this Lease, it being expressly understood that such deposit is not an advance payment of rental or a measure of Landlord's damages  in case of default by Tenant. The Security Deposit shall be held by Landlord without payment of interest, as security for the faithful performance by Tenant of all of the terms, covenants and conditions of this Lease by said Tenant to be kept and performed during the Lease Term. If the initial Minimum Guaranteed Rental increases during the term of this Lease, Tenant shall, upon written request from Landlord, deposit additional monies with Landlord so that the total amount of the Security Deposit shall at all times bear the same proportion to the increased Minimum Guaranteed Rental as the initial Security Deposit bore to the initial Minimum Guaranteed Rental. If at any time during the Lease Term any of the rental herein reserved shall be overdue and unpaid, or any other sum payable by Tenant to Landlord  hereunder shall be overdue and unpaid then Landlord may, at the option of Landlord (but Landlord shall not be required to), appropriate and apply any portion of the Security Deposit to the payment of any such overdue rental or other sum. In the event of the failure of Tenant to keep and perform any of the terms, covenants and conditions of this Lease to be kept and performed by Tenant, then Landlord, at its option, may appropriate and apply the Security Deposit, or so much thereof as may be necessary to compensate Landlord for loss or damage sustained or suffered by Landlord due to such breach on the part of Tenant. Should the Security Deposit, or any portion thereof be appropriated and applied by Landlord for the payment of overdue rental or other sums due and payable to Landlord by Tenant hereunder, then Tenant shall, upon the written demand of Landlord, forthwith remit to Landlord a sufficient amount in cash to restore the Security Deposit to the original sum deposited, and Tenant's failure to do so within ten days after receipt of such demand shall constitute a default under this Lease. Should Tenant comply with all of the terms, covenants and conditions of this Lease, the Security Deposit shall be returned in full to Tenant within 60 days after the expiration or earlier termination of this Lease. Landlord shall deliver the Security Deposit hereunder by Tenant to a purchaser of Landlord's interest in the Premises, in the event that such interest is sold and thereupon Landlord shall be discharged from any further liability with respect to such deposit.

 

 

law. The proceeds of any such disposition, less any and all expenses connected with the taking of possession, holding and selling of the property (including attorneys' fees and other expenses), shall be applied as a credit against the indebtedness secured by the security interest granted in this section. Any surplus shall be paid to Tenant or as otherwise required by law and Tenant shall pay any deficiencies forthwith to Landlord. Upon request by Landlord, Tenant agrees to execute and deliver to Landlord a financing statement in form sufficient to perfect the security interest of Landlord in the aforementioned property and proceeds thereof under the relevant provisions of the Uniform Commercial  Code, as adopted by the jurisdiction in which the Premises are situated. Upon request by Landlord, Tenant shall provide the name and address of any entity that has, or claims to have, an interest (including, without limitation, a security interest in any property located on the Premises and a description of such property). Failure to provide such a list shall result in a presumption that all property located in the Premises belongs to Tenant :free from all claims. Without intending to execute any other manner of giving Tenant any required notice, any requirement of reasonable notice to Tenant of Landlord's intention to dispose of any collateral pursuant to the enforcement of said security interest shall be made if such notice is given in the manner prescribed by this Lease for notices.

 

or material. Landlord will have the right to post notices of non-responsibility or similar written notices on the Premises in order to protect the Premises against any such liens. Tenant's obligations under this Article shall survive the expiration or earlier termination of this Lease.

 

ARTICLE 20 - HOLDING OVER

 

20.1     Holdover. Tenant will, at the expiration of this Lease, whether by lapse of time or termination, give up immediate possession to Landlord. If Tenant fails to give up possession, Tenant's holdover shall create a tenancy at sufferance and, at Landlord's option served by written notice, a month-to-month tenancy. In any such event the tenancy shall be upon the terms and conditions  of this Lease, except that the total monthly rent shall be 150% of the last Minimum Guaranteed Rental due under this Lease immediately prior to termination (in the case of tenancy at sufferance such Minimum Guaranteed Rental shall be prorated for each day Tenant remains in possession); excepting further that in the case of a tenancy at sufferance, no notices shall be required prior to commencement of any legal action to gain repossession of the Premises. In the case of a tenancy at sufferance, Tenant shall also pay to Landlord all damages (including consequential damages) sustained by Landlord resulting from retention of possession by Tenant. The provisions of this paragraph shall not constitute a waiver by Landlord of any right of re-entry as otherwise available to Landlord; nor shall receipt of any rent or any other act in apparent affirmance of the tenancy operate as a waiver of the right to terminate this Lease for a breach by Tenant hereof.

 

ARTICLE 21 - SUBORDINATION

21.1     Subordination.

 

(a)            This Lease and all rights of Tenant hereunder are subject and subordinate to any first deed of trust, first mortgage or other first instrument of security (a "Mortgage"), and at Landlord's option, this Lease and all rights of Tenant hereunder are subject and subordinate to any junior deed of trust, junior mortgage or other junior instrument of security, as well as to any ground lease or primary lease (an "Underlying Lease") that now or thereafter covers all or any part of the Shopping Center, the land, or any interest of Landlord therein, and to any and all advances made on the security thereof and to any and all increase, renewals, modifications, consolidations, replacements and extensions of such Mortgage or Underlying Lease. This provision is self-operative and no further instrument shall be required to effect such subordination of this Lease. Tenant shall, however, within 10 days after receipt of a written request from Landlord, execute, acknowledge and deliver to Landlord or to the holder ("Holder") of any Mortgage, or lessor ("Lessor") in any Underlying Lease, all instruments and certificates that in the judgment of Landlord, Holder or Lessor may be necessary or desirable to confirm or evidence such subordination. Not in limitation of the generality of the foregoing, Tenant agrees that any Holder shall have the right at any time to subordinate any Mortgage to this Lease on such terms and subject to such conditions as such Holder may deem appropriate in its sole discretion. Tenant further covenants and agrees upon demand by Holder or Lessor at any time, before or after the  institution of  any proceedings for foreclosure or sale pursuant to any Mortgage, or termination of any Underlying Lease, to  attorn to the purchaser upon such  foreclosure or sale or to Lessor upon such termination, and to recognize such purchaser or Lessor

 

preceding sentence shall survive any such foreclosure, sale or termination. Tenant, upon demand, before or after any such foreclosure, sale or termination, shall execute, acknowledge and deliver to Holder or Lessor any and all instruments that in the judgment of Holder or Lessor may be necessary or desirable to confirm or evidence such attornment and Tenant hereby irrevocably authorizes Holder or Lessor to execute, acknowledge and deliver any such instruments on Tenant's behalf. It is understood and agreed that Tenant's obligation to furnsh to Landlord any instrument described in this Article 21 promptly as requested is a material inducement for Landlord's execution of this Lease. No cure or grace period provided in this Lease shall apply to Tenant's obligations to timely deliver such instruments. Tenant acknowledges that it may be difficult, if not impossible, for Landlord to finance or sell the Shopping Center without such instruments from Tenant. Tenant's failure to deliver said instruments in the time and manner provided herein shall constitute an event of default. In addition to any other remedies set forth herein, Landlord shall be entitled all remedies available at law with respect to such breach.

 

(b)            If Landlord shall be or is alleged to be in default of any of its obligations owing to Tenant under this Lease, Tenant agrees to give to Holder and Lessor a copy of any written notice (by registered or certified mail or by delivery service) of any such default which Tenant shall have served upon Landlord, provided that prior thereto Tenant has been notified in writing (by way of notice of assignment of rents and/or leases, or otherwise) of the name and addresses of any such Holder and Lessor. Tenant shall not be entitled to exercise any right or remedy as may exist because of any default by Landlord without having given such notice to Holder and Lessor. Tenant further agrees that if Landlord shall fail to cure such default, Holder or Lessor shall have an additional 30 days (measured from the later of the date on which the default should have been cured by Landlord, or the date of Holder's or Lessor's receipt of such notice from Tenant), provided that if such default cannot be cured within such 30-day period and Holder or Lessor is diligently pursuing the remedies necessary to effectuate the cure (including, but not limited to, foreclosure or termination proceedings, if appropriate) such cure period shall be extended to allow the cure to be completed.

ARTICLE 22 - EFFECT OF SALE

22.1            Sale. A sale, conveyance or assignment of Landlord's interest in the Shopping Center will operate to release Landlord from liability from and after the effective date of such sale, conveyance or assignment upon all of the covenants, terms and conditions of this Lease, express or implied, except those liabilities which arose prior to such effective date, and, after the effective date of such sale, conveyance or assignment, Tenant will look solely to Landlord's successor-in-interest in and to this Lease. This Lease will not be affected by any such sale, conveyance or assignment, and Tenant will attorn to Landlord's successor-in-interest to this Lease, so long as such successor-in-interest assumes Landlord's obligations under the Lease from and after such effective date.

ARTICLE 23 - NOTICES

 

23.l       Notice. Wherever any notice is required or permitted hereunder, such notices shall be in writing. Any notice or document required or permitted to be delivered hereunder shall be addressed to the relevant party hereto at the respective address set out in Section 1.1

 

above, or at such address as that party may have hereafter specified by written notice. Any such notice may be sent by: (a) personal or messenger delivery, (b) U.S. Postal Service certified mail, return receipt requested, or (c) nationally recognized overnight courier, or (d) by facsimile transmission, or (e) by electronic mail. Any such notice shall be deemed delivered upon receipt, refusal of receipt, or return on account of the relevant party no longer being located at the relevant address.

 

23.2     Parties. If and when included within the term "Landlord" as used in this instrument there are more than one person, firm or corporation, all shall jointly arrange among themselves for their joint execution of such notice specifying some individual at some specific address for the receipt of notices and payments to Landlord. If and when included within the term "Tenant" as used in this instrument there are more than one person, firm or corporation, all shall jointly arrange among themselves for their joint execution of such a notice specifying some individual at some specific address for the receipt of notices and payments to Tenant. All parties included with terms "Landlord" and "Tenant," respectively, shall be bound by notices and payments given in accordance with the provisions of this Article to the same effect as if each had received such notice or payment.

ARTICLE 24 - LATE CHARGES

 

24.1        Late Charges. In the event Tenant fails to pay Landlord when due any installment of rental or other sum to be paid to Landlord which may become due hereunder, Tenant will pay Landlord on demand a late charge of 10% of the past due amount, but in no event less than $100.00 ("Late Charge"). Tenant agrees that in the event of any such late payment by Tenant, the damages resulting to Landlord will be difficult to ascertain precisely, and that the Late Charge constitutes a reasonable and good faith estimate by the parties of the extent of such damages.

 

ARTICLE 25 - RADIUS RESTRICTIONS

ARTICLE 26 - HAZARDOUS MATERIALS

 

26.1            Definitions. The term "Hazardous Substances" as used in this Lease, shall include,  without limitation, flammables,explosives, radioactive materials, asbestos, polychlorinated biphenyls (PCBs), chemicals known to cause cancer or reproductive toxicity, pollutants, contaminants, hazardous wastes, toxic substances or related materials, petroleum and petroleum products, and substances declared to be hazardous or toxic under any law or regulation now or hereafter enacted or promulgated by any governmental authority.

 

26.2     Tenant's Restrictions. Tenant shall not cause or permit to occur:

 

 

26.3     Environmental Clean-up.

 

 

 

 

 

26.4    Tenant's Indemnity. Tenant shall indemnify, defend, and hold harmless Landlord, the manager of the property, and their respective officers, directors, beneficiaries, shareholders, partners, agents, and employees from all fines, suits, procedures, daims, and actions of every kind, and all costs associated therewith (including attorneys' and consultants' fees) arising out of or in any way connected with any use, generation, storage, deposit, spill, discharge, or other release of Hazardous Substances that occurs during the Lease Term, at or from the Premises, or which arises at any time from Tenant's use or occupancy of the Premises or the use of occupancy of the Premises, by Tenant's agents, employees, affiliates, customers,

 

 

clients or invitees, or from Tenant's failure to provide all information, make all submissions, and take all steps required by all Authorities under all environmental laws and regulations.

26.5           Survival. Tenant's obligations and liabilities under this Article shall survive the expiration of this Lease.

 

27.l        Joint Venture. Nothing herein contained shall be deemed or construed by the parties hereto, nor by any third party, as creating the relationship of principal and agent or of partnership or of joint venture between parties hereof, it being understood and agreed that neither the method of computation of rental nor any other provisions contained herein, nor any acts of the parties hereto, shall be deemed to create any relationship between the parties hereto other than the relationship of Landlord and Tenant. Whenever herein the singular number is used, the same shall include the plural, and words of any gender shall include each other gender.

 

 

 

 

 

 

 

 

 

 

 

 

Lease. No election by the Trustee or Debtor-in-Possession to assume this Lease shall be effective unless each of the following conditions, which Landlord and Tenant hereby acknowledge to be commercially reasonable in the context of a bankruptcy proceeding, has been satisfied, and the Landlord has so acknowledged in writing: (i) the Trustee or Debtor-in-Possession has cured, or has provided the Landlord "adequate assurance" (as hereinafter defined) that from the date of such assumption the Trustee or Debtor-In-Possession will promptly cure, all monetary and non-monetary defaults under the Lease; (ii) the Trustee or Debtor-in-Possession has compensated, or has provided to the Landlord adequate assurance that within ten (10) days of the date of assumption the Landlord will be compensated, for any pecuniary loss incurred by the landlord arising from default of the Tenant, the Trustee, or the Debtor-in-Possession as recited in the Landlord's written statement of pecuniary loss sent to the Trustee or Debtor-in-Possession; and (iii) the Trustee or Debtor-in-Possession has provided the Landlord with adequate assurance of future performance of each of the Tenant's, the Trustee's, or the Debtor-in-Possession's obligations under this Lease; provided, however, that: (x) the Trustee or Debtor-in-Possession shall also deposit with the Landlord, as security for the timely payment of rent and other sums due hereunder, an amount equal to three months Base Rent, Additional Rent, and other monetary charges accruing under this Lease; and (y) the obligations imposed upon the Trustee or Debtor- in-Possession shall continue with respect to the Tenant or any assignee of this Lease after the completion of the bankruptcy proceedings.

 

 

29.3            Lease Assignments in Bankruptcy Proceedings. The following conditions shall apply to any assignments of this Lease in bankruptcy proceedings if the Trustee or Debtor-in- Possession has assumed this Lease and elects to assign the Lease to any other person, such interest or estate of Tenant in this Lease may be so assigned only if the Landlord has acknowledged in writing that the intended assignee can provide to the Landlord "adequate assurance of future performance" (as herein defined) of all of the  terms, covenants and conditions of this Lease to be performed by the Tenant. For the purposes of this provision, Landlord and Tenant acknowledge that, in the context of a bankruptcy proceeding, at  a minimum, "adequate assurance of future performance" shall mean that each of the following conditions has been satisfied, and the Landlord has so acknowledged in writing: (i) the proposed assignee has submitted a current financial statement audited by a Certified Public Accountant which shows the net worth and working capital and amounts determined by Landlord to be sufficient to assure the future performance by such assignee of all of Tenant's obligations under this lease; (ii) the proposed assignee, if requested by the Landlord, bas obtained guaranties in

 

form and substance satisfactory to the Landlord from one or more persons who satisfy the Landlord's standards of creditworthiness; and (iii) the Landlord has obtained all consents or waivers from any third party required under any lease, mortgage, financing arrangement, or other agreement by which the Landlord is bound, in order to permit the Landlord to consent to such assignment.

 

29.4 Authority. Each of the parties executing this Lease on behalf of Tenant or Landlord represents to the other party that such party is authorized to do so by requisite action of the party to this Lease. If either Party hereto is a corporation, trust, limited liability company, partnership, or similar entity, each individual executing this Lease on behalf of such entity represents and warrants that he or she is duly authorized to execute and deliver this Lease on its behalf. Each party shall, within 30 days after request, deliver to the other party satisfactory evidence of such authority.

LANDLORD:			TENANT:
THE ROBFORD COMPANY, L.L.C., a Colorado limited liability company			The Cheesesteak Connection #4, LLC a Colorado limited liability company
By:	/s/ James Adelstein		By:	/s/ James A. Smith
Name:	James Adelstein		Name:	James A. Smith
Title:	Vice President		Title:	As Manager
Date:	2-17-10		Date:	2/2/2010

 

 

 

 

                                                                                        

 

Site Plan

 

 

 

 

EXHIBIT B

Legal Description of the Shopping Center

 

The North 1/2 of Block 13, Jersey Subdivision, except the West 10 feet, as described in Book 462 at Page 244, County of Arapahoe, State of Colorado.

 

 

 

 

 

 

 

 

 

 

EXHIBIT C

WORK LETTER

 

 

 

Shopping Center:     as more particularly described in the Lease

 

 

 

 

 

Tenant shall be solely responsible for paying all costs for Tenant's Work. Tenant and Tenant's contractor will be required to adhere to the requirements set forth in Addendum 1 attached hereto in connection with performance of Tenant's Work and the contract between Tenant and Tenant's contractor shall incorporate all of the provisions of Addendum 1.

 

 

4.            Landlord agrees to pay (jointly to Tenant and Tenant's contractor) for completion of Tenant's Work an allowance (the "Allowance) up to a maximum amount of $20.00 per square foot of floor area (as measured from finished surface of exterior walls to furnished surface of interior walls) of the Premises for work actually completed. The Allowance shall be payable as follows:

A.     Prior to commencement of Tenant's Work by Tenant's contractor, Tenant shall provide Landlord with evidence satisfactory to Landlord that Tenant has made financial arrangements to fulfill its obligations to pay for Tenant's Work, and install its fixtures and furniture as described in Paragraph 2 above. Landlord's payment of the Allowance shall be subject to ail of the following items (i)-(vii) being completed to Landlord's satisfaction and the Allowance shall be due and payable by Landlord on the 45th day after the last-to-be-completed item has occurred to Landlord's satisfaction: (i) Tenant submits to Landlord an affidavit that all payrolls, bills for materials and any equipment and other indebtedness connected with Tenant's Work for which Landlord or its property might in any way be responsible, have been paid or otherwise satisfied unless disputed and if disputed presentation of appropriate lien waivers; (ii) Tenant submits to Landlord any other data, to the extent and in such form as may be designated by Landlord, which establishes the final cost of Tenant's Work and the payment or satisfaction of all Tenant's construction obligations, such as receipts,  releases and waivers of liens arising out of Tenant's Work; (iii) Landlord is provided with the certificate by Landlord's architect that the Tenant's Work is complete in accordance with the Approved Plans and Specifications and the provisions hereof; (iv) Landlord is provided with ail certificates necessary for occupancy of the Premises issued by the appropriate governmental authority permitting use of the Premises in accordance with the Approved Plans and Specifications; (v) Tenant has opened for business to the public; (vi) Tenant has paid first month's rent; and (vii) Tenant has executed such other close-out documents as may be requested by Landlord to include, but not be limited to, an estoppel certificate and an attornment and subordination agreement.

 

 

 

D.      All costs attributable to design and construction of Tenant's Work including, but not limited to, services, fees and expenses of Landlord's architect or engineers, costs of permits and licenses required for completion of Tenant's Work, labor, material, fees, and expenses of Landlord's contractor in completing Tenant's Work shall be paid from the Allowance. To the extent that such costs exceed the Allowance, Tenant shall pay all such amounts within ten (10) calendar days after receipt of billing therefor from Landlord or as and when due if billed directly to Tenant. Partial billing may be made periodically as the Work progresses.

 

 

ADDENDUM 1 TO WORK LETTER

 

PROCEDURE AND SCHEDULES FOR COMPLETION

OF TENANT FINISH WORK BY TENANT

 

Tenant and Tenant's Work contractors and the contracts between Tenant and Tenant's contractors, to be entered into in connection with the performance of Tenant's Work, shall conform to the following rules, regulations, and requirements, which shall be incorporated into such contracts. In the event of any conflict between any other terms or provisions of Tenant's contracts with Tenant's contractors for the performance of Tenant's Work and the terms  and provisions set forth below, the terms and provisions set forth below shall control.

1.      Commencement of Construction

 

Tenant shall start construction of Tenant's Work in the Premises not later than ten (10) days from either of the following dates, whichever shall be the later to occur and shall carry such construction to completion with all due diligence:

 

 

B. The date on which Plans and Specifications are approved by Landlord for the Premises.

2.      General Requirements

 

 

 

 

 

 

 

 

(vi)       A copy of,the building permit.

 

B.      Insurance: Tenant shall secure, pay for and maintain, or cause its Contractor to secure, pay for and maintain during the continuance of construction and fixturing work within the Premises, the following insurance and in the amounts as set forth below:

 

 

 

(b)                Comprehensive General Liability Insurance (including Contractor's Protective Liability) in an amount not less than $500,000.00 per person and $1,000,000.00 per occurrence whether involving personal injury liability (or death resulting therefrom) or property damage liability or a combination thereof with a minimum aggregate limit of $1,000,000.00. Such insurance shall provide for explosion and collapse coverage, if applicable, and contractual liability coverage and shall insure the Contractor and/or Subcontractors against any and all claims for personal injury, including death resulting therefrom and damage to the property of others and arising from his operations under the Contract and whether such operations are performed by the Contractor, Subcontractors or any of their Subcontractors, or by any one directly or indirectly employed by any of them

 

(i)

Bodily injury, each person - $500,000.00

(ii)

Bodily injury, each occurrence - $1,000,000.00

 

(iii)

Property damage liability - $100,000.00

 

Such insurance shall insure the Contractor and/or Subcontractors against any and all claims for bodily injury, including death resulting therefrom and damage to the property of others arising from his operations under the Contract and whether such operations are performed by the Contractor, Subcontractors, or any one directly or indirectly employed by any of them.

(ii)      Tenant's Protective Liability Insurance

 

Tenant or Tenant's Contractor shall provide Owner's Protective Liability Insurance as will insure against any and all liability (or death resulting therefrom) and property damage liability of others for a combination thereof which may arise from work in the completion of the Premises, and any other liability for damages which the Contractor and/or Subcontractor are required to insure under any provisions herein.

 

Landlord shall be named as additional insured. Said insurance shall be provided in minimum amounts as follows:

(a)

Bodily injury each person - $500,000.00

(b)

Bodily injury each occurrence - $1,000,000.00

(c)

Property Damage each occurrence - $250,000.00

(d)

Property Damage, Aggregate - $250,000.00

(iii)            Tenant's Builder's Risk Insurance. Tenant shall provide a complete Value Form "All Physical Loss" Builder's Risk coverage on its work in the Premises as it relates to the building within which the Premises is located, naming the interests of the Landlord, the Contractor and all Subcontractors, as their respective interest may appear, within a radius of 1OO feet of the Premises.

 

 

Tenant's Work, such bonds to be provided at Tenant's sole cost and expense. Any bond shall be requested and provided prior to the commencement of Tenant's Work.

 

 

 

 

 

 

I.   The Tenant's Work Contract shall include a statement requiring the Contractor and all subcontractors, laborers, and materialmen to execute a lien waver for any interim and final payments. A copy of the executed waiver or notice of refusal is to be immediately forwarded to the Landlord.

 

 

 

L.            In the event a Subcontractor of materialman files a mechanics' lien as a result of performing Tenant's Work pursuant to Tenant's Work Contract then Tenant's Contractor shall indemnify the Tenant and Landlord from said lien and shall, when requested by the Tenant and/or Landlord, furnish Tenant and Landlord (as Landlord or Tenant may specify) either a bond sufficient to discharge the lien, deposit in an escrow approved by Landlord and Tenant a sum  equal to 150% of the amount of such lien or obtain for the Landlord an endorsement through the  Landlord's title insurance commitment or policy insuring against loss or damage resulting from such lien. Subject to any restrictions thereon posed by Landlord's Mortgagee on the Building, Tenant's Contractor shall have the right and opportunity, in cooperation with Landlord and Tenant, to contest the validity of any such mechanics' lien by such legal means as are available, including the right to prosecute any appeals which may be permitted by law so long as during the pendency of any contest or appeal, the Tenant's Contractor shall effectively stay or prevent any official or judicial sale of any of the real property or improvements comprising the building, upon execution of otherwise, and so long as the Tenant's contractor pays any final judgment entered with respect to any such mechanics' lien and thereafter procures, within a reasonable time, record satisfaction thereof. In the event the Tenant and Landlord shall be a party to any such contest or appeal, or any other action resulting from or arising out of the performance of the Tenant's Work by Tenant's Contractor (or any of its subcontractors, agents, or employees), Tenant's Contractor shall be responsible for all legal fees and other costs and expenses incurred by Landlord and Tenant in any such action. Landlord and Tenant shall have the right to obtain

 

 

separate counsel of their choice at Tenant's Contractor's expense. In the event that Tenant's Contractor fails to provide a bond, cash escrow or title endorsement, or otherwise fails to fully satisfy and obtain release of any lien or claim in accordance with the provisions hereof, Tenant's contractor shall be obligated to refund Tenant or Landlord, as the case may be, all monies that the latter may pay in discharging any such lien including all costs and reasonable attorneys' fees incurred by Landlord or Tenant in settling, defending against, appealing or in any other manner dealing with any such lien.

 

 

 

 

EXHIBIT D

Rules and Regulations

 

THESE RULES AND REGULATIONS (the "Rules") have been established by The Robford Company, LLC, as Landlord under the Leases relating to 1000 South Colorado Boulevard Shopping Center (the "Leases"). Under the terms of the Leases, the Landlord is authorized to establish these Rules and such additional rules and regulations as are necessary or advisable in its judgment for the proper and efficient operation and maintenance of the buildings and common areas which make up the 1000 South Colorado Boulevard Shopping Center (such buildings and common areas are herein collectively referred to as the "Shopping Center"). These Rules may be changed, altered or amended by Landlord at any time in its sole discretion.

 

 

 

 

 

 

6.            Validated Parking. Landlord may, if in its opinion the same be advisable, establish a system or systems of validation or other type operation, including a system of charges against non-validated parking checks of users, and the Tenant must abide by all such rules and regulations in its use and the use of its customers and patrons with respect to said automobile parking area; provided, however, that all such rules and regulations and such types of operation or validation of parking checks and other matters affecting the customers and patrons of the Tenant shall apply equally and without discrimination to all persons entitled to the use of said automobile parking facilities.

 

 

 

 

 

 

governmental agency prior to fabrication, and all permits for signs and their installation shall be obtained and paid for by the Tenant.

In no event shall any sign be approved by Landlord if the size, location, design, color, texture, lighting and materials or such sign detracts in any way from the design of the Shopping Center and the surrounding properties.

a.

Signs shall consist of internal illuminated individual letters with fiat plastic faces in metal retainers mounted to aluminum or channellume type letters. Signs shall have no audible, flashing or animated figures. Signs shall be mounted on a raceway painted to match the building.

b.

Letters shall be five inches (5") deep, fabricated from aluminum, channellume or sheet metal, .900 aluminum or with welded joints, mechanically finished to a satin texture with a baked on enamel finish or a Dur-a-Pox paint finish. All sign lettering shall have a Gold Jewel Lite trim. All store front signs, including plexiglass signs, shall be fabricated of material with a matte finish.

c.

No facia sign or wall sign shall exceed 30% of the total facia or signable area, excluding windows and storefront area. Letter sizes shall be governed by the amount of signable area used. In no event shall any sign be less than eight feet (8') above the ground as measured to the lowest edge of the sign. No sign may project higher than the height of the structure to which it is attached.

d.

Logo signs will be considered provided that they are a nationally registered trademark or identification sign. Landlord shall review all logo designs for final approval and compliance. The logo sign shall be considered part of the allowable 30% signed area.

e.

Vertical copy of signs projecting perpendicular to any building are not permitted.

f.

Manufacturer's decals, hours of business, telephone number, etc. are limited to a total of 144 square inches per single door entrance. No "sale" signs, special announcements, et cetera shall be permitted on exterior or interior glass; such advertising material must be set back at least twelve inches (12") from glass surface and suspended from the ceiling.

g.

Advertising devices such as attraction boards, posters, banners and flags shall not be permitted.

 

h.

Painted, flashing, animated, audible, revolving or similar signs that create the illusion of animation shall not be permitted.

 

 

j.

No sign may include the product sold except  as part of the Tenant's  name or insignia.

k.

The Tenant's name and address may be applied to that Tenant's non-customer door, if any, for receiving merchandise, as directed by Landlord and in two-inch (2") high block letters.

l.

If required by the U. S. Postal Service, the Tenant may install on the storefront the number only for the street address of size, type, color and location determined by Landlord.

11.

Construction of Signs.

a.

The Tenant is required to obtain any and all building and electrical permits.

b.

Location of all openings for conduit or sign panels of building walls shall be indicated on drawings submitted to Landlord for approval.

c.

All mounting holes must be sealed off and touched up after installation, and the Tenant's Premises must be left free of debris.

d.

The Tenant is responsible for the actions of its sign contractor.

e.

Letter fastening and clips shall be concealed and shall be of galvanized, stainless or aluminum metals.

f.

Electric service to signs shall be included  in the Tenant's metered service and shall include an automatic timer to illuminate the sign. No exposed raceway, crossovers, transformers or conduit will be permitted, except for stubout through the wall. Ali signs shall use P.K. Housings and bear U.L. label, and installation of each sign shall comply with all local building codes and electrical codes.

g.

No labels shall be permitted on the exposed surface of signs, except those required by local ordinance, which shall be placed in an inconspicuous location and manner.

h.

Design, layout and material for Tenant signs shall conform in all respects with the design drawings provided by Tenant. The height and dimensions for letters in the body of the signs shall be pursuant to approved plans and specifications.

i.

All penetrations of the building structure required for sign installation  shall be sealed in a watertight condition and shall be patched to match the adjacent finish.

 

 

 

k.

This sign criteria may be changed to reflect the code of governing bodies involved.

 

 

 

 

EXHIBIT E

LANDLORD:	Robforo Company LLC
TENANT:	The Cheesesteak Connection IV
LEASE:	1000 S. Colorado Blvd.
GUARANTOR:	James A. Smith
DATE:	2/11/10

 

 

 

Tenant wishes to enter into the Lease with Landlord. Landlord is unwilling to enter into the Lease unless Guarantor assures Landlord of full performance of the Tenant's obligations under the Lease. Guarantor is willing to do so.

 

Accordingly, in order to induce Landlord to enter into the Lease with Tenant, and for other good and valuable consideration, whose receipt and adequacy are acknowledged by Guarantor:

 

 

 

 

4.                  The liability of Guarantor under this Guaranty will not be affected by (a) the release or discharge of Tenant from its obligations under the Lease in any creditors' receivership, bankruptcy or other proceedings, or the commencement or pendency of any such proceedings; (b) the impairment, limitation or modification of the liability of Tenant or the estate of Tenant in bankruptcy, or of any remedy for the enforcement of Tenant's liability under the Lease, resulting from the operation of any present or future provision of the Bankruptcy Code or other statute, or

from the decision of any court; (c) the rejection or disaffirmance of the Lease in any such proceedings; (d) the assignment or transfer of the Lease by Tenant; (e) any disability or other defense of Tenant; or (f) the cessation from any cause whatsoever of the liability of Tenant under the Lease.

 

5.                  Until all of Tenant's obligations under the Lease are fully performed, Guarantor: (a) waives any right to subrogation against Tenant by reason of any payments or acts of performance by Guarantor, in compliance with the obligation of Guarantor under this Guaranty; (b) waives any other right which Guarantor may have against Tenant by reason of any one or more payment or acts in compliance with the obligations of Guarantor under this Guaranty; and (c) subordinates any liability or indebtedness of Tenant held by Guarantor to the obligations of Tenant to Landlord under the Lease.

 

 

 

 

Guarantor has executed this Guaranty as of the date first indicated above.

 

GUARANTOR:

 

/s/ Jim Smith

___________________________

Jim Smith

 

 

EXHIBIT F

Restrictions on Use of the Shopping Center

 

Notwithstanding anything to the contrary in the Lease, Tenant's use of the Premises, or any portion thereof, shall not violate any of the use restrictions set forth below. These use restrictions shall not be construed to expand Tenant's Permitted Use of the Premises. These use restrictions shall not limit Landlord's right to sell or lease portions of the Shopping Center for the uses set forth below.

1.   In no event shall any use of the Premises be made or operation conducted thereon which use or operation is obnoxious to a first-class shopping center, including but not limited to the following:

(a)       any public or private nuisance;

(b)       any noise or sound which is routine to the operation of a business on the Premises that is objectionable due to intermittence, beat, frequency, shrillness or loudness;

(c)       any obnoxious odor which is routine to the operation of a business on the Premises;

 

 

 

 

 

(i)        any fire or bankruptcy sale or auction house operation;

 

(k)       any living quarters, sleeping apartments or lodging rooms;

(l)        any mortuary;

(m)      any adult bookstore selling as its primary product pornographic material (as that term is understood by the general public and not necessarily as defined by law);

(n)      any trailer rental;

(o)      any auditorium or convention center;

 

(p)       any second-band, Army, Navy or governmental surplus store; and

(q)       any drilling or other work for removal of subsurface substances.

2.         In no event shall the following specific uses be carried on upon the Premises:

a.        bowling alley;

b.        skating rink;

c.        theater;

d.        amusement park;

e.        carnival;

f.         meeting hall;

g.        banquet facility;

h.        entertainment facility;

i.         disco or other dance hall;

j.         sale, repair or storage of cars, boats, trailers or mobile homes;

k.        video or other game parlor;

l.         pool hall;

m.       billiard parlor

n.        amusement center;1

o.        off-track betting;

p.        flea market;

q.        massage parlor; or

r.         auditorium.

 

3.         Covenants, Conditions and Restrictions found in documents recorded in the real property records of the City of Glendale and County of Arapahoe, Colorado, and encumbering the Shopping Center as of the effective date of this Lease, as may be amended or modified from time to time.

No portion of the Premises shall be used as:

(a)       A Greek Café for the preparation and sale for consumption on-premises and/or off- premises of Greek food and beverages consistent with the menu items sold throughout the Daphne's Greek Café franchise.