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Other than as set forth below, we are not currently involved in any material legal proceedings outside the ordinary course of our business.
−Removed: In July 2021, 2353 SB, LLC (“Plaintiff”) filed an action in the District Court, County of Denver, Colorado, for breach of contract relating to a written lease between the Company and Plaintiff, the term of which is November 1, 2020, to October 31, 2023 (“Lease”).
−Removed: Plaintiff’s action relates to the Company’s alleged failure to remit continuing lease payments under the Lease and sets forth in the complaint that the Company owes approximately $123,000 for unpaid rent and utilities, plus late fees and accrued interest in respect thereof.
−Removed: In August 2021, the Company filed a Motion to Dismiss or, in the Alternative, Motion for Summary Judgment, asserting that as a result of the continuing COVID-19 pandemic, it was practically impossible for the Company to perform under the Lease in accordance with the force majeure clause contained therein;
−Removed: and therefore the Company properly exercised its rights to rent abatement.
−Removed: In October 2021, Plaintiff filed a Cross-Motion for Summary Judgment.
−Removed: All motions are fully briefed, and the court has yet to rule on the motions.
+Added: In July 2021, we were served with a Complaint in the District Court, County of Denver, Colorado, by plaintiff 2353 SB, LLC (“Plaintiff”).
+Added: We entered into a lease with Plaintiff for the premises at 2353 South Broadway, Denver, CO with a term of three (3) years to commence on November 1, 2020.
+Added: Monthly lease payments were to be $12,866.66.
+Added: In 2020, we made initial payments (first month’s rent, last month’s rent, and security deposit) of $39,633.32;
+Added: but subsequently did not take possession of the premises and have made no further payments in respect thereof, as a direct result of the COVID-19 pandemic.
+Added: The lease contains a ‘force majeure’ clause which includes a provision that neither party is liable for failure to perform its obligations under the lease which have become practicably impossible because of circumstances beyond the reasonable control of the applicable party, including ‘pandemics or outbreak of communicable disease.
+Added: We have taken the position that our failure to take possession and make any further payments under the lease is directly related to the COVID-19 pandemic.
+Added: We are vigorously defending this action and believe that the above-referenced force majeure clause presents a complete defense to Plaintiff’s claims.
+Added: We filed a motion to dismiss or a motion for summary judgment in the alternative.
+Added: Plaintiff filed a response and cross-motion for summary judgment thereafter.
+Added: In October 2022, the court denied the motion to dismiss on the basis that Plaintiff sufficiently pled facts that raise a plausible claim for relief, notwithstanding our possible defenses, but has not specifically made any rulings on either party’s motion for summary judgment.
+Added: On November 14, 2022, we timely filed a formal answer to the complaint, denying each of Plaintiff’s substantive claims.
+Added: We also asserted appropriate affirmative defenses, including the force majeure clause of the lease, which provides that we are not liable under the lease in the event of a variety of events outside our control, including “pandemics.” In addition, we have asserted a counterclaim against Plaintiff for breach of contract to recover the initial payments made under the lease as well as attorneys’ fees and costs.
+Added: The trial is currently scheduled for September 2023.
MINE SAFETY DISCLOSURES
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Compared sentence by sentence after normalising whitespace, quotation marks, case and digits, so re-formatting and restated figures do not read as changed language. Wording changes appear as one removal and one addition. The current filing and the prior one are authoritative.