EXHIBIT 10.12
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT is entered into this 9th day of April by and
between Xxxxxxx Resources Corporation ("Sublessor") and Osmotics Corporation
("Sublessee") subject to a certain lease ("Lease") dated July 24, 1990, entered
into by The 1125 Venture, a Colorado joint venture ("Lessor") and the Sublessor.
(1) SUBLEASE PREMISES
-----------------
Sublessor leases to Sublessee and Sublessee leases from Sublessor upon
terms and conditions set forth herein certain real property legally described
as:
LOTS 1 TO 16 INC & NW 25 FT L 17 TO 32 INC XXX 00 XXXX XXXXXX & ALL VAC ALLEY
ADJ, City and County of Denver, State of Colorado
commonly known as 0000 - 00xx Xxxxxx, Xxxxx 0000, 4,038 rentable square feet,
attached as Exhibit "A", ("Sublease Premises"), together with any rights-of-way,
easements and any other rights, if any, appurtenant thereto.
(2) TERMS AND CONDITIONS OF SUBLEASE
--------------------------------
(a) Terms. The term of this Sublease shall begin on the 1st day of June,
-----
1996 ("Commencement Date") and shall extend through the 31st day of October,
1999, unless terminated sooner as provided herein ("Termination Date").
(b) Conditions. This Sublease Agreement is made expressly subject to all
----------
of the terms and conditions of the Lease. If an event occurs that is not
governed by the terms and provisions of this Sublease Agreement, then the terms
and provisions of the Lease shall govern such event. Furthermore, the Sublessee
assumes each and every covenant, duty and obligation of the Lessee and promises
to faithfully observe each and every term and provision set forth in the Lease
(except as may be modified by this Sublease Agreement). The Sublessee
acknowledges that the Sublessor shall be deemed to be substituted for the Lessor
under the Lease in all respects, and the Sublessor shall be entitled to exercise
all of the rights and privileges of the Lessor as defined in the Lease (except
as may be modified by this Sublease Agreement). By way of illustration and not
by way of limitation, the Sublessor shall be entitled to exercise any remedy
provided to the Lessor under the Lease (in addition to any remedy set forth in
this Sublease) in the event the Sublessee breaches any condition, provision or
covenant set forth in this Sublease Agreement.
(3) RENTAL
------
Sublessee agrees to pay to Sublessor for the full term hereof the sum of
$158,996.25, payable in advance and without notice in equal monthly installments
of $3,785.63 on the first day of each month during said term at the following
address: 0000 Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000 (or at such
other address as Sublessor may designate in writing from time to time) without
any set-off of deduction whatsoever. If the Commencement Date is on a day other
than the first day of a calendar month, Sublessee shall pay to Sublessor the
rental for the number of days that exist prior to the first day of the
succeeding month, with a similar adjustment being made on the Termination Date.
(4) USE OF SUBLEASE PREMISES
------------------------
Sublessee shall have the right to use and occupy the Sublease Premises for
general business use. Any other use shall be permitted only with the prior
written consent of Sublessor, which consent shall not be unreasonably withheld.
Throughout the term of this Sublease (and any extension thereof), Sublessee, at
Sublessee's sole cost and expense, covenants to promptly comply with all laws
and ordinances and the orders, rules, regulations and requirements of all
federal, state and municipal governments and appropriate departments,
commissions, boards and officers thereof.
(5) PAYMENT OF TAXES
----------------
Sublessee agrees to pay all personal property taxes, all franchise or
license fees or any other charge levied against the Sublessee resulting from the
operation of the Sublessee's business in the Sublease Premises.
(6) INSURANCE
---------
During term of this Sublease, Sublessee shall carry and maintain the
following types of insurance in the amounts specified, at Sublessee's sole cost
and expense, and for the mutual benefit of Sublessor and Sublessee:
1
(a) Liability Insurance. Sublessee shall at all times keep in force a
-------------------
comprehensive general combined liability insurance policy providing protection
of at least $500,000 in respect of personal injury or death of any one person
and not less than $1,000,000 for death or injury to more than one person, and
$500,000 for property damage arising from the use, ownership, maintenance,
disuse or condition of the Sublease Premises, any improvements located on or
appurtenant to the Sublease Premises, improvements or adjoining areas or ways.
Sublessor shall be named and protected under the terms and conditions of said
policy as Sublessor of the Sublease Premises.
(b) Waiver of Subrogation. The parties agree that all insurance policies
---------------------
obtained pursuant to this Sublease shall include a clause or endorsement which
shall waive the right of subrogation on the part of the insurance carrier
against both Sublessor and Sublessee. Sublessor and Sublessee hereby release
the other from any and all liability or responsibility to the other or anyone
claiming through or under them by way of subrogation.
(7) ASSIGNMENT AND SUBLETTING
-------------------------
This Sublease or any interest therein may not be assigned by Sublessee,
voluntarily or involuntarily, by operation of law or otherwise, and all or any
part of the Sublease Premises shall not be subleased by Sublessee. A merger,
consolidation, sale of substantially all of the assets or sales of a substantial
amount of the stock of Sublessee or a transfer of a substantial partnership
interest of Sublessee, shall constitute an assignment of this Sublease for the
purposes of this paragraph. Any assignment or subletting in violation of this
provision shall be null and void.
(8) INDEMNITY PROVISION
-------------------
Sublessee agrees to exonerate, hold harmless, protect and indemnify
Sublessor, or any owner of the Sublease Premises, from and against any and all
losses, damages, claims, suits or actions, judgments and costs which may arise
during the term of this Sublease for personal injury, loss of life or damaged
property sustained in or about the Sublease Premises or the improvements and
appurtenances thereto upon the Sublease Premises or upon the adjacent sidewalks
and streets; and from and against all costs, counsel fees, expenses and
liabilities incurred in any such claims, the investigation thereof or the
defense of any action or proceeding brought thereon; and from and against any
judgments, orders, decrees or liens resultant therefrom and any fines levied by
any authority for any law, regulation or ordinance by virtue of the use of the
improvements and appurtenances thereto situated upon the Sublease Premises.
Sublessee shall not permit any mechanic's or materialmen's liens to be filed
against the Sublease Premises and hereby indemnifies and holds Sublessor
harmless from and against any liability, damage, expense or cost which may be
incurred by Sublessor harmless from and against any liability, damage, expense
or cost which may be incurred by Sublessor in connection with any mechanic's or
materialmen's liens which may be filed against the Sublease Premises as a result
of the provisions of this Sublease. This indemnity shall specifically include
attorneys' fees and any costs incurred by Sublessor to enforce this indemnity.
(9) ADA COMPLIANCE
--------------
(a) Disclosure. Sublessee hereby acknowledges that Sublessor and Broker
----------
have advised Sublessee that the Premises and Sublessee may be subject to the
Americans With Disabilities Act (the "ADA"), a Federal law. Among other
requirements of the ADA that could apply to the Premises, Title III of the ADA
requires owners and tenants of "public accommodations" to remove barriers to
allow access by disabled persons and provide auxiliary aids and services for
hearing, vision or speech impaired persons by certain dates. Any governmental
agency directives issued to ensure Sublessee's compliance with the ADA in the
Premises shall be at Sublessee's sole cost and expense if directly related to
Sublessee's specific use of the space unless Sublessor has agreed, in writing,
to pay for a portion of said costs.
(b) Investigation. Sublessee hereby acknowledges that Sublessor and Broker
-------------
have recommended that Sublessee prior to executing this Sublease, investigate
the ADA and the regulations thereunder to determine if the ADA law and
regulations would apply to Sublessee and/or to the Premises in which Sublessee
is interested in occupying. Sublessee agrees that it is solely responsible, at
its expense, for conducting its own independent investigation of all ADA issues
prior to the execution date of this Sublease and during the primary term of this
Sublease (and any extension thereof).
(10) HAZARDOUS MATERIALS
-------------------
Sublessee shall not (either with or without negligence) cause the escape,
disposal or release of any biologically or chemically active or other hazardous
substances or materials ("Hazardous Materials"). Sublessee shall not allow the
storage or use of such Hazardous Materials in any manner not sanctioned by law
or by the highest standards prevailing in the industry for the storage and use
of Hazardous Materials,
2
nor allow to be brought into the Premises any Hazardous Materials except to use
in the ordinary course of Sublessee's business, and then only after written
notice is given to Sublessor of the identity of such Hazardous Materials.
Without limitation, Hazardous Materials shall include those described in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, 42 USC Section 9601 et seq., the Resource Conversation and Recovery
Act, as amended, 42 USC Section 6901 et seq., and applicable state or local laws
and the regulations adopted under these acts. If any lender or governmental
agency shall ever require testing to ascertain whether or not there has been any
release of Hazardous Materials, then the reasonable cost of testing and
resulting cleanup thereof shall be reimbursed by Sublessee to Sublessor upon
demand as additional charges if such requirement applies to the Premises,
provided that such testing proves that Sublessee released such Hazardous
Materials on the Premises. In addition, Sublessee shall execute affidavits,
representations and the like from time to time at Sublessor's request concerning
Sublessee's best knowledge and belief regarding the presence of Hazardous
Materials on the Premises. In all events, Sublessee shall indemnify Sublessor in
the manner elsewhere provided in this Sublease from any release of Hazardous
Materials on the Premises occurring while Sublessee is in possession, or
elsewhere if caused by Sublessee or persons acting under Sublessee.
(11) DEFAULT PROVISIONS
------------------
The occurrence of any one or more of the following events shall constitute
a default and breach of this Sublease by Sublessee:
(a) Failure to Pay Rent. Sublessee failing to pay the rental herein
-------------------
reserved.
(b) Failure to Pay Other Costs. Sublessee failing to make any other
--------------------------
payments required to be made by Sublessee when due, where such failure shall
continue for a period of five (5) calendar days following written notice from
Sublessor to Sublessee.
(c) Failure to Keep Covenants. Sublessee failing to perform or keep any of
-------------------------
the other terms, covenants and conditions herein contained for which Sublessee
is responsible, and such failure continuing and not being cured for a period of
thirty (30) calendar days after written notice or if such default is a default
which cannot be cured within a 30-calendar-day period, then Sublessee's failing
to commence to correct the same within said 30-calendar-day period and
thereafter failing to prosecute the same to completion with reasonable
diligence.
(d) Abandonment. Sublessee abandoning the Sublease Premises.
-----------
(e) Bankruptcy. Sublessee being adjudicated a bankrupt or insolvent or
----------
Sublessee filing in any court a petition for bankruptcy or for reorganization or
for the adoption of an arrangement under the Bankruptcy Act (as now or in the
future amended) or the filing of an involuntary bankruptcy against Sublessee
[unless said involuntary bankruptcy is terminated within thirty (30) calendar
days from the date of said filing], or Sublessee filing in any court for the
appointment of a receiver or trustee of all or a portion of Sublessee's
property, or there being appointed a receiver or trustee for all or a portion of
Sublessee's property, unless said receiver appointed a receiver or trustee for
all or a portion of Sublessee's property, unless said receiver or trustee is
terminated within thirty (30) calendar days from the date of said appointment.
(f) Assignment for Benefit of Creditors. Sublessee making any general
-----------------------------------
assignment or general arrangement of Sublessee's property for the benefit of
Sublessee's creditors.
(12) REMEDIES
--------
In the event of an occurrence of default as set forth above, Sublessor
shall have the right to:
(a) Terminate Sublease. Terminate this Sublease and end the term hereof by
------------------
giving to Sublessee written notice of such termination, in which event Sublessor
shall be entitled to recover from Sublessee at the time of such termination the
present value of the excess, if any, of the amount of rent reserved in this
Sublease for the then balance of the term hereof over the then reasonable rental
value of the Sublease Premises for the same period. The present value shall be
determined by discounting all future excess rent amounts at a rate of eight
percent (8%) per annum. It is understood and agreed that the "reasonable rental
value" shall be the amount of rental which Sublessor can obtain as rent for the
remaining balance of the initial term or renewal term, whichever is applicable;
or
(b) Xxx Monthly for Rents. Without resuming possession of the Sublease
---------------------
Premises or terminating this Sublease to xxx monthly for and recover all rents,
other required payments due under this
3
Sublease, and other sums including damages and legal fees at any time and from
time to time accruing hereunder; or
(c) Repossess Sublease Premises. Upon written notice to all interested
---------------------------
parties, reenter and take possession of the Sublease Premises or any part
thereof and repossess the same as of Sublessor's former estate and expel
Sublessee and those claiming through or under Sublessee and remove the effects
of either or both (forcibly, if necessary) without being deemed guilty in any
manner of trespass and without prejudice to any remedies for rent delinquencies
or preceding lease defaults, in which event Sublessor may from time to time
without terminating this Sublease relet the Sublease Premises or any part
thereof for such term or terms and at such rental or rentals and upon such other
terms and conditions as Sublessor may deem advisable, with the right to make
alterations and repairs to the Sublease Premises, and such reentry or taking of
possession of the Sublease Premises by Sublessor shall not be construed as an
election on Sublessor's part to terminate this Sublease unless a written notice
of termination is given to Sublessee or unless the termination thereof is
decreed by a court of competent jurisdiction. In the event of Sublessor's
election to proceed under this provision, then such repossession shall not
relieve Sublessee of Sublessee's obligation to pay any resulting rent deficit
under this Sublease, all of which shall survive such repossession, and shall be
payable hereunder if such repossession had not occurred, less the net proceeds
(if any) of any reletting of the Sublease Premises after deducting all of
Sublessor's expenses in connection with such reletting, including but without
limitation all repossession costs, brokerage commissions, legal expenses,
attorneys' fees, expenses of employees, alteration costs, and expenses of
preparation of such reletting. Sublessee shall pay such current damages to
Sublessor on the days on which the basic rental would have been payable
hereunder if possession had not been retaken, and Sublessor shall be entitled to
receive the same from Sublessee on each such day.
(13) SURRENDER OF SUBLEASE PREMISES
------------------------------
Upon the Termination Date of this Sublease, Sublessee shall peaceably and
quietly leave and surrender the Sublease Premises in as good condition as
existed on the Commencement Date, ordinary wear and tear excepted. Sublessee
shall surrender and deliver the building and Sublease Premises broom clean and
free of Sublessee's property. Provided Sublessee is not in default. Sublessee
shall have the right to remove all of Sublessee's fixtures, equipment, machinery
and other personal property, provided that upon such removal the Sublease
Premises are delivered in the same condition as existed at the time of the
Commencement Date. Further, in the event Sublessee does not remove any of
Sublessee's own fixtures, equipment or personal property or any additions or
alterations made to the Sublease Premises during term of this Sublease,
Sublessor may require Sublessee to remove any such improvements, alterations,
fixtures and equipment and restore the Sublease Premises to the condition as
existed on the Commencement Date or retain the same.
(14) NOTICES
-------
All notices, demands and requests required to be given by either party to
the other shall be in writing and shall either be hand delivered or sent by
certified or registered mail, return receipt requested, postage prepaid,
addressed to the parties at the addresses set forth below or at such other
addresses as the parties may designate in writing delivered pursuant to this
provision. Any notice when given as provided herein shall be deemed to have
been delivered on the date personally served or two (2) calendar days subsequent
to the date that said notice was deposited with the United States Postal
Service.
Sublessor:
Xxxx X. Xxxxxx
Xxxxxxx Resources Corporation
0000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Sublessee:
Xx. Xxxxxxx X. Xxxxxx
Osmotics Corporation
0000 - 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Brokers:
Xxxxxx and Company
0000 Xxxxxxxx Xxxxxx, #0000
Xxxxxx, XX 00000
4
Xxxxxxxx Commercial Services, Inc.
0000 Xxxx Xxxxxxx, #000
Xxxxxx, XX 00000
(15) TIME OF ESSENCE
---------------
Time is of the essence hereof.
(16) QUIET ENJOYMENT
---------------
Sublessor represents and warrants that:
(a) Authority. Sublessor has the right to enter into and consummate this
---------
Sublease.
(b) Peaceful Possession. Upon Sublessee's paying the rental herein
-------------------
reserved and upon performing all of the terms and conditions of this Sublease
on Sublessee's part to be performed, Sublessee shall at all times during the
term of this Sublease peacefully and quietly have, hold and enjoy the Sublease
Premises.
(17) MISCELLANEOUS
-------------
(a) Choice of Law. This Sublease is entered into in the State of Colorado
-------------
and shall be construed in accordance with the laws thereof.
(b) Headings and Captions. The headings and captions used in this Sublease
---------------------
are for the convenience of reference only and shall not be used in the
construction or interpretation of this Sublease.
(c) Inurement. The covenants and agreements contained herein shall be
---------
binding upon and inure to the benefit of the parties hereto, their heirs,
personal representatives, administrators, successors and assigns.
(d) Construction of Terms. Words of any gender used in this Sublease shall
---------------------
be held to include any other gender, and words in the singular shall be held to
include the plural, as the identity of Sublessor or Sublessee requires.
(18) NO WAIVER
---------
No waiver by Sublessor of any provisions hereof shall be deemed a waiver of
any other provision hereof or of any subsequent breach by Sublessee of the same
or any other provision. Sublessor's consent to or approval of any act shall not
be deemed to render unnecessary the obtaining of Sublessor's consent to or
approval of any subsequent act by Sublessee. The acceptance of rental hereunder
by Sublessor shall not be a waiver of any preceding breach by Sublessee of any
provision hereof, other than the failure of Sublessee to pay the particular
rental so accepted, regardless of Sublessor's knowledge of such preceding breach
at the time of acceptance of such rent.
(19) ATTORNEYS' FEES
---------------
In case suit shall be brought to enforce any provisions of this Sublease,
the prevailing party shall be awarded (in addition to the relief granted) all
reasonable attorneys' fees and costs resulting from such litigation.
(20) INTEREST ON PAST-DUE OBLIGATIONS
--------------------------------
Any amount due to Sublessor not paid when due shall bear interest at the
rate of two percent (2%) per month from the date due; provided, however, that
any such payment of interest shall not excuse or correct any default by
Sublessee under this Sublease.
(21) MEMORANDUM OF SUBLEASE
----------------------
Either party, upon request from the other party, shall execute in
recordable form a short form Memorandum of Sublease, which Memorandum of
Sublease shall contain only the names of the parties, the Commencement Date and
Termination Date of this Sublease (and any options which may be granted
hereunder), and the legal description of the Sublease Premises.
(22) LEGAL COUNSEL
-------------
By virtue of this paragraph, Broker advises and recommends that all parties
hereto obtain legal counsel to represent them in connection with the examination
of title, zoning of the Sublease Premises, the execution of this Sublease, tax
implications of the transaction and all other aspects relative to the
transaction contemplated hereby.
5
(23) AGENCY DISCLOSURE
-----------------
The rules and regulations of the Colorado Real Estate Commission require
that Broker discloses its agency relationship with all parties to a transaction.
Broker hereby discloses that it is acting as agent for and on behalf of
Sublessor. The parties acknowledge prior timely agency disclosure and consent
to said agency relationship.
(24) SEVERABILITY
------------
If any sentence, paragraph or section of this Sublease is held to be
illegal or invalid, this shall not affect in any manner those other portions of
the Sublease not illegal or invalid and this Sublease shall continue in full
force and effect as to those provisions.
(25) SECURITY DEPOSIT
----------------
Sublessee shall deposit with Sublessor a Security Deposit of $3,785.63 upon
the execution of this Sublease. Such deposit shall be held by Sublessor until
all terms and conditions of this Sublease are performed satisfactorily by
Sublessee. Said deposit will then be returned to Sublessee within thirty (30)
days following the termination of this Sublease.
(26) ADDITIONAL PROVISIONS
---------------------
(a) Parking. Sublessee shall have the right to four (4) parking spaces in
-------
the attached garage at the current monthly rate for the building.
(b) Tenant Improvements. Sublessor shall provide and pay for all Tenant
-------------------
Improvements as identified in Exhibit "B" attached (see Exhibit "B"). Sublessee
shall be responsible for any additional construction costs.
IN WITNESS WHEREOF, the parties have executed this Sublease Agreement the
day and year first written above.
SUBLESSOR: SUBLESSEE:
/s/ /s/
________________________________ _________________________________
Xxxx X. Xxxxxx Xxxxxx Xxxxxx
Xxxxxxx Resources President
0000 Xxxxxxxx Xxxxxx, Xxxxx 0000 Osmotics Corporation
Xxxxxx, XX 00000 0000 - 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
LESSOR'S CONSENT
----------------
The undersigned Lessor under the Lease hereby consents to this Sublease
Agreement this _____ day of ___________, of the Sublease Premises under the
terms and conditions as set forth herein. This consent shall apply
only to this Sublease Agreement and shall not be deemed to be Lessor's
consent to any other subsequent sublease agreement.
LESSOR:
_______________________________
6
EXHIBIT "A"
Sublease Premises
0000 - 00xx Xxxxxx, Xxxxx 0000
[Diagram]
-1-
EXHIBIT "B"
Tenant Improvements
0000 - 00xx Xxxxxx, Xxxxx 0000
1. Paint reception area.
2. Paint all walls that are not vinyl-covered.
3. Shampoo all carpeting.
4. Remove wall and door frame as indicated below.
5. Remove all attached name tags.
[Diagram]
-1-
LEASE AGREEMENT
BETWEEN
THE 1125 VENTURE
AND
XXXXXXX RESOURCES
TABLE OF CONTENTS
1. LEASED PREMISES................................................... 1
2. TERM.............................................................. 1
3. USE............................................................... 1
4. RENT.............................................................. 1
5. ADDITIONAL RENT................................................... 2
6. PRORATION OF RENT................................................. 2
7. OPERATING COST.................................................... 2
8. SERVICES FURNISHED BY LANDLORD.................................... 4
9. IMPROVEMENTS BY LANDLORD.......................................... 4
10. LATENT DEFECTS.................................................... 5
11. QUIET ENJOYMENT................................................... 5
12. REPAIRS BY LANDLORD............................................... 5
13. REPAIRS BY TENANT................................................. 5
14. CARE OF THE PREMISES.............................................. 6
15. ASSIGNMENT OR SUBLEASE............................................ 6
16. SIGNS............................................................. 6
17. HAZARDOUS USE..................................................... 6
18. RULES AND REGULATIONS............................................. 6
19. ENTRY BY LANDLORD................................................. 7
20. NUISANCE.......................................................... 7
21. SUBORDINATION TO MORTGAGE......................................... 7
22. ESTOPPEL CERTIFICATE.............................................. 7
23. CONDEMNATION AND LOSS OR DAMAGE................................... 7
24. LIEN.............................................................. 7
25. HOLDING OVER; MONTH-TO-MONTH TENANCY.............................. 8
26. CASUALTY.......................................................... 8
27. ATTORNEY'S FEES................................................... 8
28. ALTERATION........................................................ 8
29. ASSIGNMENT BY LANDLORD............................................ 8
30. BREACH OF LEASE................................................... 8
31. REMEDIES UPON BREACH.............................................. 9
32. NON-WAIVER........................................................ 9
33. HOLD HARMLESS..................................................... 9
34. WAIVER OF SUBROGATION............................................. 9
35. CASUALTY INSURANCE................................................ 10
36. LIABILITY INSURANCE............................................... 10
37. NOTICE TO MORTGAGEE............................................... 10
38. AUTHORITIES FOR ACTION AND NOTICE................................. 10
39. SUCCESSORS AND ASSIGNS............................................ 11
40. RELOCATION........................................................ 11
41. MISCELLANEOUS..................................................... 11
42. REAL ESTATE BROKER................................................ 11
43. RECORDING - SHORT FORM MEMORANDUM................................. 11
44. SECURITY DEPOSIT.................................................. 11
45. PARKING........................................................... 12
46. RIGHT OF FIRST OFFER.............................................. 12
47. RENEWAL OPTION.................................................... 13
EXHIBIT A - SPACE PLAN
EXHIBIT B - WORK LETTER AGREEMENT
EXHIBIT C - RULES AND REGULATIONS
-ii-
DENVER NATIONAL BANK BUILDING
0000 Xxxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000
LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into this 24th day of July, 1990,
between THE 1125 VENTURE, a Colorado joint venture (hereinafter called
"Landlord"), whose address for purposes hereof is Suite 2500, 0000 Xxxxxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxx 00000 and Xxxxxxx Resources Corporation (a Delaware
Corporation) (hereinafter called "Tenant"), whose address for purposes hereof
until commencement of the term of this Lease is 0000 00xx Xxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxxxxx, 00000, and thereafter being that of the "Building"
(hereinafter defined).
1. LEASED PREMISES.
Subject to and upon the terms, provisions and conditions hereinafter set
forth, and in consideration of the duties, covenants and obligations hereunder,
Landlord does hereby lease, demise and let unto Tenant, and Tenant does hereby
lease from Landlord those certain premises (hereinafter called the "Premises")
in the building known as "Denver National Bank Building" (which name may be
changed at Landlord's discretion) being constructed or constructed on the land
described as Lots 1 through 16, inclusive, and the northwesterly 25 feet of Lots
17 through 32, inclusive, East Denver, together with the vacated alley adjoining
said Lots, City and County of Denver, State of Colorado (which land and building
are hereinafter called the "Building"). The Premises in the Building are more
particularly described as follows:
Office space located in Suite 2400
and as reflected on the floor plan of the Premises attached hereto and made a
part hereof as Exhibit A, containing approximately 16,288.54 square feet of
rentable area.
2. TERM.
(A) Subject to and upon the terms and conditions set forth herein, or in
any exhibit or addendum hereto, this Lease shall continue in force for a term of
Sixty (60) months, beginning on the 1st day of November, 1990 and ending on the
31st day of October, 1995.
(B) In the event the Premises should not be ready for occupancy by said
commencement date for any reason, Landlord shall not be liable or responsible
for any claims, damages or liabilities in connection therewith or by reason
thereof, and the term of this Lease shall commence at the time the Building is
completed and the Premises ready for occupancy by Tenant. Should the term of
this Lease commence on a date other than that specified in (A) above, Landlord
and Tenant will, at the request of either, execute a written statement
specifying the beginning date of the term of this Lease. In such event, rental
under this Lease shall not commence until said revised commencement date, the
expiration date shall be extended and shall end on the date sixty (60) months
from said revised commencement date. Landlord shall give Tenant written notice
of such revised commencement date at least fifteen days in advance thereof.
3. USE.
The Premises are to be used and occupied by Tenant solely for the purpose
of general office space. Tenant shall use the Premises in a careful, safe and
proper manner. Tenant shall not use or occupy or permit the Premises to be used
or occupied for any purpose or in any manner prohibited by the laws of the
United States, the State of Colorado, or the ordinances of the City and County
of Denver, including but not limited to the Skyline Urban Renewal Plan and the
deed restrictions imposed thereunder by the Denver Urban Renewal Authority.
Tenant shall not use the Building name as part of Tenant's name without
Landlord's prior written permission.
4. RENT.
Tenant hereby agrees to pay a base annual rental (herein call "base rent")
in the sum of Nine Hundred Forty-four Thousand Seven Hundred Thirty-five and
32/100ths Dollars ($944,735.32) payable in annual amounts as herein provided.
Year 1 shall mean the period beginning on the rental commencement date (as
provided in Paragraph 2 of the Lease) and continuing for twelve (12) months.
Each Subsequent
-1-
year shall commence on the anniversary of the rental commencement date and
continue for the subsequent twelve (12) months.
Year 1: One Hundred Seventy-nine Thousand One Hundred Seventy-three and
94/100ths Dollars ($179,173.94)
Year 2: One Hundred Seventy-nine Thousand One Hundred Seventy-three and
94/100ths Dollars ($179,173.94)
Year 3: One Hundred Seventy-nine Thousand One Hundred Seventy-three and
94/100ths Dollars ($179,173.94)
Year 4: One Hundred Ninety-five Thousand Four Hundred Sixty-two and 48/100ths
Dollars ($195,462.48)
Year 5: Two Hundred Eleven Thousand Seven Hundred Fifty-one and 02/100ths
Dollars ($211,751.02)
Such base rent, together with any escalation of rent provided for herein, shall
be due and payable in twelve equal installments on the first day of each
calendar month during the initial term of this Lease and any extensions or
renewals hereof, and Tenant hereby agrees to pay such rent to Landlord at
Landlord's address as provided herein (or at such other address as Landlord may
designate from time to time) monthly in advance without demand. All past due
installments shall bear interest at the rate of 5% per month until paid.
5. ADDITIONAL RENT.
Tenant shall pay Landlord as additional rent those charges in respect of
Operating Cost determined as set forth in Paragraph 7, and such other sums as
are required to be paid by Tenant under this Lease. Any such charges or sums
shall be deemed to be rent and shall be payable in the manner provided and
recoverable as rent, and Landlord shall have all rights specified in this Lease
against Tenant for default in payment thereof as in the case of arrears of rent.
6. PRORATION OF RENT.
If the term of this Lease shall begin on a day other than the first day of
a calendar month or end on a day other than the last day of a calendar month,
the monthly installment of rent for the fractional month at the beginning or end
of the term of this Lease shall be prorated, calculated on a daily basis from
the rent payable during that year and shall be paid on the date of the beginning
of the term of this Lease or in advance on the first day of the last month of
the term of this Lease, as the case may be.
7. OPERATING COST.
(A) The base rent provided for herein is based, in part, upon Landlord's
estimate of "Basic Cost," as hereinafter defined, of repairing, maintaining and
operating the Building during the calendar years of the lease term. The
"Initial Basic Cost" is stipulated to be Tenants proportionate share of the
actual Basic Cost for the Building in the year 1990.
(B) "Basic Cost" as said term is used herein shall consist of all operating
expenses of the Building, which shall be computed on the accrual basis and
shall consist of all expenditures by Landlord to maintain all facilities in the
operation of the Building. All operating expenses shall be determined in
accordance with generally accepted accounting principles which shall be
consistently applied. The term "operating expenses" as used herein shall mean
all expenses, costs and disbursements (but not replacement of capital investment
items nor specific costs specially billed to and paid by specific tenants) of
every kind and nature which Landlord shall pay or become obligated to pay
because of or in connection with the operation of the Building, including but
not limited to, the following:
(1) wages and salaries of all employees engaged in operation,
maintenance or security of the Building, including taxes, insurance and
benefits related thereto;
(2) all supplies and materials used in operation and maintenance of
the Building;
(3) cost of all utilities for the Building, including but not limited
to the cost of water, power, heating, lighting, air conditioning,
ventilating, sewer and trash disposal;
(4) cost of all maintenance, building management and service
agreements for the Building and the equipment therein, including alarm
service, janitorial service, window cleaning, security service, elevator
maintenance, and grounds maintenance;
(5) cost of all insurance relating to the Building, including the
cost of casualty and liability insurance applicable to the Building and
Landlord's personal property used in connection therewith;
-2-
(6) cost of repairs and general maintenance (excluding repairs and
general maintenance paid by proceeds of insurance, by Tenant or by other
third parties, and alterations attributable solely to tenants of the
Building);
(7) amortized cost of installation of capital investment items
required by governmental order, or which reduce operating costs, up to but
not exceeding the annual amount of the operating costs which they have
reduced;
(8) any reasonable management fee for general operation and
management of the Building which is calculated as a percentage of gross
rentals; and
(9) all real estate taxes and assessments and special assessments
imposed upon the Building by any governmental bodies or authorities, and
all charges specifically imposed in lieu of such taxes. The term "taxes"
as used in this Paragraph 7 shall not include state, local and federal
personal and corporate income taxes measured by the income of Landlord;
estate and inheritance taxes, franchise, succession and transfer taxes;
interest on taxes and penalties resulting from failure to pay real estate
taxes; and ad valorem taxes on Landlord's personal furniture and
furnishings, and on Landlord's leasehold improvements to the extent that
same exceed standard building allowances.
(C) In the event that the actual Basic Cost for any calendar year during
the life of this Lease exceeds the Initial Basic Cost set out in (A) above,
Tenant shall pay its proportionate share of the year's increase in the actual
Basic Cost for such year over the Initial Basic Cost in the proportion that its
rentable area in the Premises bears to the total net rentable area of the
finished Building ("Tenant's proportionate share"). Landlord shall within the
period of 150 days (or as soon thereafter as possible) after the close of each
calendar year give Tenant a statement of such year's actual Basic Cost and a
comparison with the Initial Basic Cost, prepared by a certified public
accountant. If such year's actual Basic Cost is greater than the Initial Basic
Cost, Tenant shall pay Landlord, within 30 days of statement receipt, Tenant's
proportionate share of such increase, if any, such payment to be made when due
as a condition to a protest thereof, as hereinafter provided. the
aforementioned comparative statement need not be binding on Tenant, who may,
within a 120-day period after rendition thereof, protest such determination by
written notice to Landlord. In the event such determination shall be in
Tenant's favor, Landlord shall promptly refund to Tenant the amount of such
overpayment or, at Landlord's election, credit such amount to the succeeding
monthly installments of annual base rent. If Tenant shall not dispute any item
or items of any such comparative statement within 120 days after such statement
has been rendered, Tenant shall be deemed to have approved such statement. If
the term of this Lease shall begin on a day other than the first day of the
calendar year or end on a day other than the last day of the calendar year,
Tenant's proportionate share of any increase in the Basic Cost for such year
shall be prorated, calculated on a daily basis for the fractional year at the
beginning or the end of the term of this Lease.
(D) Notwithstanding anything to the contrary herein, it is agreed with
regard to janitorial, maintenance, repairs and utilities only, that in the event
the Building is not fully occupied during any calendar year, or in the event the
entire Building is not furnished with services during any calendar year, an
adjustment shall be made by Landlord in computing the Basic Cost for such year
so that the Basic Cost shall be computed for such year as though the Building,
based on reasonable good faith projections founded on actual operating results
for occupied portions of the Building, had been fully occupied during such year,
and as though the entire Building had been provided with services during such
year.
(E) For each calendar year during the term of this Lease, Landlord shall
provide Tenant with a comparison of the Initial Basic Cost and the estimated
Basic Cost for such calendar year, and Tenant shall thereafter pay in advance in
monthly installments with the base rent Tenant's proportionate share of any
estimated increase in Landlord's Basic Cost of operating the Building over the
Initial Basic Cost. When such year's actual Basic Cost has been determined, the
accounting and settlement provisions of (C) above shall apply.
(F) Tenant at its expense, shall have the right at all reasonable times to
audit Landlord's books and records relating to this Lease for any year or years
for which additional rental payments become due; or at Landlord's sole
discretion Landlord will provide a certified public accountant.
(G) Landlord agrees that during the term of this Lease the Building shall
be run in a reasonable and prudent manner as a first class office building and
that all costs and expenses (including salaries and wages) includable in Basic
Cost shall be comparable to the generally prevailing costs which would then be
paid or incurred therefor by a reasonably prudent operator of a first class
office building in downtown Denver generally similar to the Building.
-3-
(H) Notwithstanding anything contained in this Paragraph 7, the rent
payable by Tenant shall in no event be less than the base rent specified in
Paragraph 4 above.
8. SERVICES FURNISHED BY LANDLORD.
(A) Landlord agrees to furnish Tenant the following services provided
Tenant is not in default:
(1) domestic tempered running water at those points of supply
provided for general use of tenants in the Building; central heat and air
conditioning in season, at such times as Landlord normally furnishes those
services to tenants in the Building, and at such temperatures and in such
amounts as are considered by Landlord to be standard, subject to applicable
governmental rules, regulations, laws and energy conservation guidelines,
but such service on Saturday afternoons, Sundays and holidays shall be
furnished only upon the request of the Tenant received no later than 3:00
p.m. of the prior business day, and Tenant shall bear the entire cost
thereof, prorated with any other tenants requesting the same service;
routine maintenance, painting and electric lighting service for all public
areas and special areas of the Building in the manner and to the extent
deemed by Landlord to be standard, including janitor service on the basis
of a five-day week; and
(2) electrical facilities at standard outlets for sufficient power to
operate typewriters, calculating machines and other machines of similar low
electrical consumption; provided, however, that Tenant shall bear the
utility costs occasioned by electro-data processing machines, photocopy
machines and similar machines of high electrical consumption, including
additional air conditioning costs attributable thereto.
(B) If Landlord shall be unable to any extent to furnish the services
described in (A) above, or if any cessation thereof occurs, or if any of the
equipment or machinery should break down, or for any cause cease to function
properly, such occurrences shall not render Landlord liable in any respect for
damages to either person or property, not be construed as an eviction of Tenant,
nor work an abatement of rent, nor relieve Tenant from fulfillment of any
covenant or agreement herein.
(C) Landlord shall provide only such security for the Building as Landlord
deems necessary, which shall not include any special security measures because
of the presence of Tenant or Tenant's business. Landlord shall have no
responsibility to prevent and shall not be liable to Tenant for losses due to
theft, burglary or vandalism, or for damages done by unauthorized persons
gaining access to the Premises.
(D) Landlord shall furnish Tenant, free of charge, with two keys for each
corridor door entering the Premises. Additional keys will be furnished at a
charge by Landlord equal to the cost plus 15% on an order signed by Tenant or
Tenant's authorized representative. All such keys shall remain the property of
Landlord. No additional locks shall be allowed on any door of the Premises, and
Tenant shall not make, or permit to be made, any duplicate keys, except those
furnished by Landlord. Upon termination of this Lease, Tenant shall surrender
to Landlord all keys to the Premises, and give to Landlord the explanation of
the combination of all locks for safes, safe cabinets and vault doors, if any,
in the Premises.
(E) Landlord shall provide and install, at Tenant's costs, all letters or
numerals on doors in the Premises; all such letters and numerals shall be in the
Building's standard graphics, and no other shall be used or permitted on the
Premises without Landlord's express approval.
(F) If, upon the request of Tenant, Landlord furnishes Tenant with any
additional services not described hereinabove as services normally furnished by
Landlord, Tenant shall pay Landlord for such additional services at the
prevailing wage and material rates in Denver, Colorado, at the time said
services are performed. Charges for such additional services shall be deemed to
be additional rent, and may be collected by Landlord as provided in Paragraph 5
above.
9. IMPROVEMENTS BY LANDLORD.
In preparing the Premises for occupancy by Tenant, Landlord shall be
required to bear the expense of installing the items listed in the Work Letter,
attached hereto as Exhibit B and made a part hereof, but only to the extent that
such expense does not exceed the allowances indicated in said Work Letter. All
installations in excess of those set forth in the Work Letter shall be for
Tenant's account and at Tenant's cost, which cost shall by payable by Tenant to
Landlord as additional rent hereunder promptly upon being invoiced therefor.
-4-
10. LATENT DEFECTS.
Taking possession of the Premises by Tenant shall be conclusive evidence as
against Tenant that the Premises were in good and satisfactory condition when
possession was taken, subject only to latent defects and those deficiencies
listed in writing in a notice delivered to Landlord by Tenant within thirty days
after the date Tenant takes possession of the Premises.
11. QUIET ENJOYMENT.
Tenant shall, and may peacefully have, hold and enjoy the Premises, subject
to the other terms hereof, provided that Tenant pays the rental herein recited
and performs all of Tenant's covenants and agreements herein contained. It is
understood and agreed that this covenant and any and all other covenants of
Landlord contained in this Lease shall be binding upon Landlord and its
successors only with respect to breaches occurring during their respective
ownerships of the Landlord's interest hereunder. In addition, Tenant
specifically agrees to look solely to Landlord's or its successor's interest in
the Building for the recovery of any judgment from Landlord, it being agreed
that Landlord or any successor in interest shall never be personally liable for
any such judgment. The provision contained in the foregoing sentence is not
intended to, and shall not, limit any right that Tenant might otherwise have to
obtain injunctive relief against Landlord or Landlord's successors in interest,
or 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.
12. REPAIRS BY LANDLORD.
(A) Unless otherwise expressly stipulated herein, Landlord shall not be
required to make any improvements to or repairs of any kind or character on the
Premises during the term of this Lease, except such repairs as may be deemed
necessary by Landlord for normal maintenance operations of the Building. The
obligation of Landlord so to maintain and repair the Premises shall be limited
to building standard items. Special leasehold improvements will, at Tenant's
written request, be maintained by Landlord, and Tenant shall pay to Landlord for
such maintenance as additional rent hereunder an amount equal to Landlord's
actual costs, plus 15% of said costs to cover overhead.
(B) If any improvement, structural modification or addition to the
Building is required subsequent to the commencement of the term hereof by any
change in the laws, ordinances, rules, regulations or order of any governmental
or quasi-governmental authority having jurisdiction over the Building, Landlord
shall make such improvement, modification or addition, and the rent to be paid
thereafter by Tenant shall be further adjusted, in such amount as Landlord's
independent certified public accountant may determine, so that Tenant pays its
pro rata share of Landlord's per square foot cost (computed in the same manner
as otherwise provided in this Lease) of such improvement, modification or
addition, amortized at a market rate of return over the useful life thereof. In
determining such adjustment in rent, Landlord's independent certified public
accountant shall consider any cost reductions to Landlord in operating the
Building resulting from such improvement, modification or addition. Tenant
shall commence payment of any adjustment in its rent pursuant to this paragraph
on the first day of the month following completion by Landlord of such
improvement, modification or addition.
13. REPAIRS BY TENANT.
(A) Landlord shall have the right, at its option, at Tenant's own cost and
expense, to repair to replace any damage done to the Building, or any part
thereof, caused by Tenant or Tenant's agents, employees, invitees, or visitors,
and Tenant shall pay the cost thereof to the Landlord on demand as additional
rent.
(B) Tenant shall make no alterations in or additions or repairs to the
Premises without first obtaining the written consent of Landlord and after
receiving written consent, Tenant shall notify Landlord at least thirty business
days in advance of any alterations in or repairs or additions to the Premises
which Tenant proposes to make. Tenant shall coordinate any work it proposes to
perform upon the Premises with Landlord in order to prevent a disruption of the
Building's operation.
(C) Tenant shall indemnify and hold Landlord harmless against any
liability, loss, damage, costs or expenses, including attorneys' fees, on
account of any claims of any nature whatsoever including claims of liens by
laborers, materialmen or others for work performed for, or materials or supplies
furnished to Tenant or persons claiming under Tenant. Should any liens be filed
or recorded against the Premises or any action affecting the title thereto be
commended, Tenant shall give Landlord written notice thereof. Within twenty
days after the filing, recording or commencement thereof, Tenant shall cause
such liens to be removed of record or such action to be dismissed; provided,
however, that if Tenant shall desire to contest any claim of lien, it shall
furnish security that is satisfactory to Landlord. If a final judgment is
entered establishing the validity or existence of a lien for any amount, Tenant
shall pay and satisfy the
-5-
same at once. If Tenant shall be in default under the foregoing provisions,
Landlord may (but without being required to do so) pay such lien or claim and
any costs, and the amount so paid, together with reasonable attorneys' fees
incurred in connection therewith, shall be immediately due from Tenant to
Landlord, with interest at the rate of 12 percent per year from the dates of
Landlord's payments, to be payable by Tenant hereunder as additional rent.
(D) At least five days prior to the commencement of any work on the
Premises, permitted to be done by persons requested by Tenant, the Tenant shall
notify Landlord of the proposed work and the names and addresses of the persons
supplying labor and materials for the proposed work so that the Landlord may
avail itself of the provisions of statutes such as Section 38-22-105(2), C.R.S.
1973. During any such work on the Premises, Landlord shall have the right to go
upon and inspect the Premises at all reasonable times, and shall have the right
to post and keep posted thereon notices such as those provided for by Section
38-22-105(2), C.R.S. 1973, or to take any further action which Landlord may deem
to be proper for protection of Landlord's interest in the Premises.
14. CARE OF THE PREMISES.
(A) Tenant shall not commit or allow any waste or damage to be committed
on any portion of the Premises. At the termination of this Lease, by lapse of
time or otherwise, Tenant shall deliver up the Premises to Landlord in as good
condition as at date of possession by Tenant, ordinary wear and tear excepted;
and Tenant shall remove all of Tenant's movable furniture and other effects.
All movable furniture and other effects not so removed shall conclusively be
deemed to have been abandoned and may be appropriated, sold, stored, destroyed
or otherwise disposed of by Landlord without notice to Tenant or any other
person and without obligation to account therefor, and Tenant shall pay Landlord
all expenses incurred in connection with such property. Tenant's obligation to
observe or perform this covenant shall survive the termination of this Lease.
Upon such termination, Landlord shall have the right to reenter and resume
possession of the Premises.
(B) Tenant shall pay before delinquency any and all taxes, assessments,
license taxes and other charges levied, assessed or imposed and which become
payable during the term of this Lease upon Tenant's operations, occupancy or
conduct of business at the Premises or upon Tenant's equipment, furniture,
appliances, trade fixtures, leasehold improvements and other personal property
of any kind installed or located on the Premises.
15. ASSIGNMENT OR SUBLEASE.
Neither this Lease nor any part of the Premises shall be assigned or sublet
by Tenant without the prior written consent of Landlord, and notwithstanding the
consent of Landlord to any such assignment or subletting, the Tenant shall not
be released of its obligation to pay the rent and to perform all other
obligations to be performed by Tenant hereunder for the term of this Lease.
16. SIGNS.
Tenant shall not place signs on the Premises which are visible from outside
the Premises without first obtaining the written consent of Landlord.
17. HAZARDOUS USE.
Tenant shall not occupy or use, or permit any portion of the Premises to be
occupied or used for any business or purpose which is unlawful, disreputable or
deemed to be extra-hazardous, or permit anything to be done which would in any
way increase the rate of casualty insurance coverage on said Building and/or its
contents.
18. RULES AND REGULATIONS.
The Rules and Regulations set forth in Exhibit C attached hereto are hereby
made a part of this Lease. Landlord may, from time to time, amend, modify,
delete or add new and additional reasonable Rules and Regulations for use,
safety, cleanliness and care of the Premises and the Building, and the comfort,
quiet and convenience of occupants of the building, provided that no change
shall materially and adversely affect the use of the Premises by Tenant without
the consent of the Tenant, which consent shall not be unreasonably withheld.
Such new or modified Rules and Regulations shall be effective upon notice
thereof to Tenant from Landlord. In case of a conflict between the terms of the
Lease and the Rules and Regulations, the terms of this Lease shall control.
Tenant will cause its employees and agents, or any other permitted by Tenant to
occupy or enter the Premises, at all times to abide by said Rules and
Regulations set forth in Exhibit C, or as hereafter modified by Landlord. The
breach by Tenant of any Rules or Regulations set forth in Exhibit C, or any
amendments or additions thereto, shall be a default hereunder, and Landlord
shall have all remedies in this Lease provided for in the event of default
-6-
by Tenant and shall not be responsible to Tenant for non-observance by any other
tenant or person of such Rules and Regulations.
19. ENTRY BY LANDLORD.
Tenant shall permit Landlord or its agents or representatives to enter into
and upon any part of the Premises at all reasonable hours to inspect the same,
clean or make repairs, alterations or additions thereto, as Landlord may deem
necessary or desirable, and Tenant shall not be entitled to any abatement or
reduction of rent by reason thereof.
20. NUISANCE.
Tenant shall conduct a business and control Tenant's agents, employees,
invitees and visitors in such manner as not to create any nuisance, or interfere
with, annoy or disturb any other tenant or Landlord in the operation of the
Building.
21. SUBORDINATION TO MORTGAGE.
This Lease shall be and is hereby made subordinate to any mortgages or
deeds of trust which may now or hereafter encumber the Building, and to all
renewals, modifications, consolidations, replacements and extension thereof.
This clause shall be self-operative and no further instrument of subordination
need by required by any mortgagee. It is contemplated that the mortgagee will
be Metropolitan Life Insurance Company. This clause shall be for the benefit of
any mortgagee, including, but not limited to, Metropolitan Life Insurance
Company, as contemplated. In confirmation of such subordination, however,
Tenant shall, at Landlord's request, execute promptly any appropriate
certificate, subordination agreement or instrument that Landlord may request.
Tenant hereby constitutes and appoints Landlord the Tenant's attorney-in-fact to
execute any such certificate, subordination agreement or instrument for and on
behalf of Tenant. Notwithstanding the fact that this Lease is and shall be
subordinate as provided above, Tenant will, at the election and in the sole
discretion of any person or party succeeding to the interest of Landlord as a
result of the enforcement of the default or foreclosure provisions of such
mortgage or deed of trust, including conveyance by deed in lieu of foreclosure,
automatically become the Tenant of such successor in interest without change in
the terms or other provisions of this Lease and Tenant agrees to attorn to such
party; provided, however, that such mortgagee or successor in interest shall not
(i) be bound by any payment of rent or additional rent for more than one month
in advance; (ii) be bound by any amendment or modification of this Lease made
without the written consent of such mortgagee or such successor in interest;
(iii) be liable for any previous act or omission by Landlord under this Lease;
(iv) be subject to any offset which shall theretofore have accrued to Tenant
against Landlord; (v) be obligated with respect to any security deposit under
this Lease unless such security deposit has been physically delivered to such
mortgagee or successor; or (vi) be bound or liable under any provisions in the
Lease whereby Landlord assumed the obligations of Tenant under leases previously
executed by Tenant covering space in other buildings. Tenant further agrees,
upon demand, to execute such nondisturbance and attornment agreements as any
such mortgagee or successor shall request.
22. ESTOPPEL CERTIFICATE.
At Landlord's request Tenant will execute either an estoppel certificate
addressed to Landlord's mortgagee or any prospective successor of Landlord, or a
three-party agreement among Landlord, Tenant and said mortgagee or successor,
certifying to such facts (if true) regarding the status and terms of this Lease
as may be requested, and agreeing to such notice provisions and other matters as
such mortgagee or successor may reasonably require in connection with Landlord's
financing or the conveyance of the Building.
23. CONDEMNATION AND LOSS OR DAMAGE.
If more than 15% of the Premises shall be taken or condemned for any public
purpose, this Lease shall, at the option of either party, forthwith cease and
terminate. All proceeds from any such taking or condemnation of the Premises
shall belong to and be paid to Landlord. Landlord shall not be liable or
responsible to Tenant for any loss or damage to any property or person
occasioned by theft, fire, act of God, public enemy, injunction, riot, strike,
insurrection, war, court order, requisition or order of governmental body, or
authority; or for any damage or inconvenience which may arise through repair or
alteration of any part of the Building, or failure to make any such repairs.
24. LIEN.
As additional security for the Tenant's performance of its obligations
under this Lease and the payment of all rent and other sums due or to become due
hereunder, Tenant hereby grants to Landlord a security interest in and to all of
the personal property of Tenant situated on the Premises except any and all of
Tenants proprietary geological data and information. Tenant shall execute such
documents as the Landlord may reasonably require to evidence Landlord's security
interest in such personal property. If
-7-
Tenant is in default under this Lease, such personal property shall not be
removed from the Premises (except to the extent such property is replaced with
an item of equal or greater value) without the prior written consent of
Landlord. It is intended by the parties hereto that this instrument shall have
the effect of a security agreement and financing statement covering such
personal property under the Uniform Commercial Code of the State of Colorado, as
amended from time to time, and may be filed or recorded as such. Upon the
occurrence of an event of default set forth herein, Landlord may exercise any
rights of a secured party under said Uniform Commercial Code, including the
right to take possession of such personal property and (after ten days' notice
to those parties required by statute to be notified) to sell the same for the
best price that can be obtained at public or private sale, and out of the money
derived therefrom, pay the amount due Landlord and all costs arising out of the
execution of the provisions of this section, paying the surplus, if any, to the
Tenant. If such personal property, or any portion thereof, shall be offered at a
public sale, Landlord may become the purchaser thereof.
25. HOLDING OVER; MONTH-TO-MONTH TENANCY.
If, after the expiration of the term of this Lease, Tenant shall remain in
possession of the Premises or any part thereof and continue to pay rent, without
any express agreement as to such holding, then such holding over shall be deemed
and taken to be a periodic tenancy from month to month, subject to all the terms
and conditions of this Lease on the part of Tenant to be observed and performed
and at a rent equivalent to double the then current monthly installment of rent
due hereunder, payable in advance on the first day of each calendar month
thereafter. Such holding over may be terminated by Landlord or Tenant upon ten
days' notice. In the event that Tenant fails to surrender the Premises upon
termination or expiration of this Lease or such month-to-month tenancy, then
Tenant shall indemnify Landlord against loss or liability resulting from any
delay of Tenant in not surrendering the Premises, including, but not limited to,
any amounts required to be paid to third parties who were to have occupied the
Premises and any attorney's fees related thereto.
26. CASUALTY.
In the event of a fire or other casualty in or to the Premises, Tenant
shall immediately give notice thereof to Landlord. If the Premises, through no
fault or neglect of Tenant, its agents, employees, invitees or visitors, shall
be partially destroyed by fire or other casualty so as to render the Premises
untenantable, and Landlord elects to repair the same, the rent herein shall
xxxxx thereafter until such time as the Premises are made tenantable by
Landlord. In the event of the total destruction of the Premises without fault
or neglect of Tenant, its agent, employees, invitees or visitors, or if from any
cause the Premises or the Building shall be so damaged that Landlord shall not
decide to rebuild (which decision Landlord may make in its sole discretion),
then all rent owed up to the time of such destruction or termination shall be
paid by Tenant and this Lease shall cease and come to an end.
27. ATTORNEY'S FEES.
In the event Tenant makes default in the performance of any of the terms,
covenants, agreements or conditions contained in this Lease and Landlord places
the enforcement of this Lease, or any part thereof, or the collection of any
rent due, or to become due hereunder, or recovery of the possession of the
Premises in the hands of an attorney, or files suit upon the same, Tenant agrees
to pay Landlord a reasonable attorney's fee incurred by Landlord.
28. ALTERATION.
This Lease may not be altered, changed or amended, except by an instrument
in writing, signed by both parties.
29. ASSIGNMENT BY LANDLORD.
Landlord shall have the right to transfer and assign, in whole or in part,
all its rights and obligations hereunder and in the Building and property
referred to herein, and in such event and upon Landlord's transferee assuming
Landlord's obligations hereunder (any such transferee to have the benefit of,
and be subject to, the provisions of Paragraph 44 below) no further liability or
obligation shall thereafter accrue against Landlord hereunder.
30. BREACH OF LEASE.
If default shall be made in the payment of any sum to be paid by Tenant
under this Lease, and such default shall continue for ten days, or default shall
be made in the performance of any of the other covenants or conditions which
Tenant is required to observe and to perform, and such default shall continue
for twenty days, or if the interest of Tenant under this Lease shall be levied
upon under execution or other legal process, or any petition shall be filed by
or against Tenant to declare Tenant a bankrupt, for the reorganization or
rehabilitation of Tenant or to delay, reduce or modify Tenant's debts or
obligations, or if any petition shall be filed or other action taken to
reorganize or modify Tenant's capital structure
-8-
which said reorganized or modified capital structure results in the net worth of
Tenant decreasing by 25 percent (25%) or more from the date of this Lease if
Tenant be a corporation or other entity, or if Tenant be declared insolvent
according to law, or if any assignment of Tenant's property shall be made for
the benefit of creditors, or if a receiver or trustee is appointed for Tenant or
Tenant's property, or if Tenant shall abandon the Premises during the terms of
this Lease or any renewals or extensions thereof, then Landlord may treat the
occurrence of any one or more of the foregoing events as a breach of this Lease
(provided that no such levy, execution, legal process or petition filed against
Tenant shall constitute a breach of this Lease if Tenant shall vigorously
contest the same by appropriate proceedings and shall remove or vacate the same
within twenty days from the date of its creation, service or filing).
31. REMEDIES UPON BREACH.
In the event of a breach of this Lease by Tenant, Landlord may have any one
or more of the following described remedies, in addition to all other rights and
remedies provided at law or in equity:
(A) Landlord may terminate this Lease and forthwith repossess the Premises
and be entitled to recover as damages a sum of money equal to the total of (i)
the cost of recovering the Premises, including Landlord's attorney's fees; (ii)
the unpaid rent earned at the time of termination, plus interest thereon at the
rate of 12% per annum from the due date; (iii) the balance of the rent for the
remainder of the term less the fair market value of the Premises for said
period; (iv) damages for the wrongful withholding of the Premises by Tenant; and
(v) any other sum of money and damages owed by Tenant to Landlord.
(B) Landlord may retake possession of the Premises and shall have the
right, but not the obligation, without being deemed to have accepted a surrender
thereof, and without terminating this Lease, to relet same for the remainder of
the term provided for herein; and if the rent received through such reletting
does not at least equal the rent provided for herein, Tenant shall pay and
satisfy any deficiency between the amount of the rent so provided for and that
received through reletting; and, in addition thereto, Tenant shall pay all
reasonable expenses incurred in connection with any such reletting, including,
but not limited to, the cost of renovating, altering and decorating for a new
occupant.
32. NON-WAIVER.
Failure of Landlord or Tenant to declare any breach or default immediately
upon occurrence thereof, or delay in taking any action in connection therewith,
shall not waive such breach or default, but Landlord or Tenant shall have the
right to declare any such breach or default at any time and take such action as
might be lawful or authorized hereunder, either at law or in equity.
33. HOLD HARMLESS.
Landlord shall not be liable to Tenant, or to Tenant's agents, servants,
employees, customers or invitees, for any damage to person or property caused by
any act, omission or neglect of Tenant, and Tenant agrees to indemnify and hold
Landlord harmless from all liability and claims for any such damage.
34. WAIVER OF SUBROGATION.
Landlord shall cause each insurance policy carried or to be carried by
Landlord insuring the Premises against loss, and Tenant shall cause each
insurance policy carried or to be carried by Tenant on or relating to the
Premises, its fixtures and contents, to be written in a manner so as to provide
that the insurance company waives all right of recovery by way of subrogation
against Landlord or Tenant, as the case may be, in connection with any loss or
damage covered by any such policies. Neither party, its agents, officers and
employees shall be liable to the other for any loss or damage caused (regardless
of cause or origin, including the negligence of any party hereto, its agents,
officers or employees) by fire or any other risk or risks against which any such
policy insures, provided such waiver was obtainable. However, if such waiver
cannot be obtained, or is obtainable only by the payment of an additional
premium above that charged by companies carrying such insurance without such
waiver of subrogation, the party undertaking to obtain such waiver shall notify
the other party of such fact and such other party shall have a period of ten
days after the giving of such notice either to (i) place such insurance in
companies which are satisfactory to the other party and will carry such
insurance with such waiver, and/or (ii) agree to pay such additional premium (in
the case of Tenant, pro rata in the proportion which the area of the Premises
bears to the total net rentable area covered by such insurance). If neither (i)
nor (ii) is done, this paragraph shall be null and void for so long as either
such waiver cannot be obtained or the party in whose favor a waiver of
subrogation is desired shall refuse to pay the additional premium; provided that
if such waiver should subsequently become obtainable without payment of an
additional premium, and the party in whose favor a waiver of subrogation is
desired so notifies the other party in writing, this paragraph shall, at the
expiration of sixty days after such notice, be restored to full force and
effect. If the release of either Landlord or Tenant as set forth in the second
sentence of this paragraph
-9-
shall contravene any law with respect to exculpatory agreements, the liability
of the party in question shall be deemed not released but shall be secondary to
that of the other party's insurer.
35. CASUALTY INSURANCE.
Landlord shall maintain fire and extended coverage insurance on the portion
of the Building constructed by Landlord, including additions and improvements by
Tenant which are required by this Lease and which have become or are to become
the property of Landlord upon vacation of the Premises by Tenant. Said
insurance shall be maintained with an insurance company authorized to do
business in Colorado, in amounts desired by Landlord and at the expense of
Landlord and payments for losses thereunder shall be made solely to Landlord.
Tenant shall maintain at its expense fire and extended coverage insurance on all
of its personal property, including removable trade fixtures, located in the
Premises and on all additions and improvements made by Tenant and not required
to be insured by Landlord above. If the annual premiums to be paid by Landlord
shall exceed the standard rates because of Tenant's operations, the contents of
the Premises, or improvements with respect to the Premises beyond building
standard result in extra-hazardous exposure, Tenant shall promptly pay the
excess amount of the premium upon request by Landlord.
36. LIABILITY INSURANCE.
Tenant shall, at Tenant's expense, maintain a policy or policies of
comprehensive general liability insurance with the premiums thereon fully paid
on or before due date, issued by and binding upon an insurance company approved
by Landlord, such insurance to afford minimum protection of not less than
$500,000.00 in respect of personal injury or death in respect of any one person
and of not less than $1,000,000.00 for death or injury to more than one person,
and $500,000.00 for property damage. Any such policy shall name Landlord as an
additional insured. Tenant shall at Landlord's request furnish Landlord with
copies of all insurance to be maintained by Tenant and with evidence of payment
of the premiums thereon. All such policies shall contain a clause or
endorsement to the effect that they may not be terminated or materially amended
during the term of this Lease except after ten days' written notice thereof to
Landlord.
37. NOTICE TO MORTGAGEE.
Tenant agrees to give any mortgagee, by registered or certified mail, a
copy of any notice of breach or default served by Tenant upon Landlord, provided
that prior to such notice Tenant has been notified in writing (by way of notice
of assignment of rents and leases or otherwise) of the address of such
mortgagee. Tenant further agrees that if Landlord shall have failed to cure
such breach or default within the time provided for in this Lease, then the
mortgagee shall have an additional thirty days within which to cure such breach
or default or if such cannot be cured within that time, then such additional
time as may be necessary if within such thirty days the mortgagee has commenced
and is diligently pursing the remedies necessary to cure such breach or default
(including but not limited to commencement of foreclosure proceedings if
necessary to effect such cure) in which event this Lease shall not be terminated
while such remedies are being so diligently pursued.
38. AUTHORITIES FOR ACTION AND NOTICE.
(A) Landlord may act in any matter provided for herein by its Property
Manager and any other person who may from time to time be designated in writing
by Landlord to act on its behalf. Tenant shall designate in writing one or more
persons to act on Tenant's behalf in any matter provided for herein and may from
time to time change such designation. In the absence of any such designation,
the person or persons executing this Lease shall be deemed to be authorized to
act on behalf of Tenant in any matter provided for herein.
(B) All notice or demands required or permitted to be given to the
Landlord hereunder shall be in writing, and shall be deemed duly served when
delivered personally to Landlord or to the Property Manager employed by Landlord
at the office of such Property Manager in the Building, or when deposited in the
United States mail, postage prepaid, certified or registered, return receipt
requested, addressed to Landlord at its address stated on the first page of this
Lease, or at such other address as Landlord may from time to time specify in
writing. All notices or demands required to be given to the Tenant hereunder
shall be in writing, and shall be deemed duly served when delivered personally
to any employee of Tenant designated in accordance with (A) above to act for
Tenant, or when deposited in the United States mail postage prepaid, certified
or registered, return receipt requested, addressed to Tenant at Tenant's address
stated on the first page of this Lease, or at Tenant's address in the Building,
if Tenant has taken possession hereunder, or at such other address as Tenant may
from time to time specify in writing.
-10-
39. SUCCESSORS AND ASSIGNS.
This Lease shall be binding upon and inure to the benefit of the successors
and assigns of Landlord, and shall be binding upon and inure to the benefit of
Tenant and Tenant's successors, assigns and personal representatives to the
extent assignment may be approved by Landlord hereunder.
40. RELOCATION.
At any time during the term of this Lease, Landlord shall have the right,
upon thirty (30) days' prior written notice to Tenant to substitute other space
within the Building for the Premises (the "Substituted Premises"). Tenant shall
relocate to the Substituted Premises on the date set forth in Landlord's notice
(to occur no sooner than thirty (30) days after receipt by Tenant of said
notice) and Landlord agrees to pay all reasonable moving expenses of Tenant
incidental to the Substituted Premises, including the reasonable replacement of
Tenant's improvements incidental to the Substituted Premises. In the event
Landlord elects to exercise this right, the Substituted Premises shall be
located in an equivalent location on another floor, or alternatively in another
location if approved by Tenant (which approval shall not be unreasonably
withheld), contain as much square footage as the originally leased Premises and
the rental rate shall remain as set forth in Paragraph 4 of the Lease. The
suite number designation and Exhibit A shall be deemed revised to reflect the
description of the Substituted Premises. Except for such revisions, the terms
and provisions of the Lease shall be applicable to the Substituted Premises and
the Substitute Premises shall be deemed to be the Premises under the Lease.
41. MISCELLANEOUS.
(A) The pronouns of any gender shall include the other genders, and either
the singular or the plural shall include the other.
(B) The rights and remedies of Landlord hereunder, and any other rights
and remedies provided by law shall be construed as cumulative and no one of them
is exclusive of any other right or remedy. Such rights and remedies shall
further be continuing rights, none of which shall be exhausted by being
exercised on one or more occasions. Landlord shall be entitled to an injunction
or the appointment of a receiver for Tenant in proper cases upon ex parte
application therefor to enforce any part of parts of this Lease or to prevent or
stop any violation, breach or default on the part of Tenant.
(C) Whenever in this Lease Landlord reserves or is given the right and
power to give or withhold its consent to any action on the part of Tenant, such
right and power shall not be exhausted by its exercise on one or more occasions,
but shall be a continuing right and power for the full term of this Lease.
(D) Tenant acknowledges and agrees that it has not relied upon any
statements, representations, agreements or warranties except such as are
expressed herein. No amendment or modification of this Lease shall be valid or
binding unless expressed in writing and executed by the parties hereto in the
same manner as the execution of this Lease.
(E) If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws effective during the term of this
Lease, then and in that event, it is the intention of the parties hereto that
the remainder of this Lease shall not be affected hereby.
(F) This Lease is made in and shall be governed by and interpreted in
accordance with the laws of the State of Colorado.
42. REAL ESTATE BROKER.
Tenant warrants and agrees to save and hold Landlord harmless from any and
all leasing commissions (including renewals, extensions or options), costs and
liability with respect to the Premises claimed by any real estate broker except
those brokers with whom Landlord may have contracted directly.
43. RECORDING - SHORT FORM MEMORANDUM.
If requested at any time by Landlord, Tenant shall execute (i) a short form
memorandum of this Lease in recordable form which may, at Landlord's option, be
placed of record; and (ii) a memorandum of this Lease on such form as may be
prescribed by the Colorado Department of Revenue, or any other appropriate form,
which memorandum may, at Landlord's option, be filed with said Department so
that Landlord may avail itself of the provision of statutes such as Section 39-
22-604(7)(c), Colorado Revised Statutes 1973.
44. SECURITY DEPOSIT.
Tenant has deposited the sum of $7,000.00 with Landlord as security for
Tenant's prompt and proper performance of all of the terms, covenants and
agreements contained in this Lease. Tenant
-11-
understand and agrees (i) that such deposit is not a prepayment of rent and that
Landlord shall have no obligation to account to Tenant and Tenant shall have no
right to recover from Landlord any interest, earnings or other increments which
may accrue during the time such deposit is held by Landlord.
45. PARKING.
Landlord hereby agrees to rent to Tenant, during the initial term of this
Lease, permits to park a total of sixteen (16) automobiles in the building
parking garage (hereinafter called the "Garage"). Such parking permits shall be
provided on an unassigned basis, whereby rental rates for ten (10) of the
sixteen (16) parking permits shall be $55.00 per month for the initial five (5)
year term of this Lease only, and rates for six (6) of the sixteen (16) parking
permits shall be at the rate determined by Landlord from time to time in the
Garage. Additional spaces may be provided on a month-to-month basis as
available at the rate determined by Landlord from time to time in the Garage.
46. RIGHT OF FIRST OFFER.
Provided Tenant is not in default in the performance of the terms and
conditions of this Lease, Tenant shall have and is hereby granted during the
initial term of this Lease, a Right of first Offer to lease space on the twenty-
fourth floor contiguous to the Premises, ("Right of First Offer Space"). Said
Right of First Offer shall be provided in accordance with the following terms
and conditions:
(A) Tenant shall have ten (10) business days after being notified by
Landlord in writing, of Landlord's contemplated lease transaction with a third
party or parties regarding, including but not limited to, said Right of First
Offer Space, within which to advise Landlord, in writing, in the manner provided
below, if Tenant desires to exercise it's Right of First Offer as to such space.
If Tenant does desire to exercise it's rights hereunder, it shall be required to
add to it's Lease all of the space offered in the contemplated lease transaction
as provided in Landlord's notice, at that particular time. Unless Landlord is
timely notified as aforesaid, it shall be conclusively presumed that Tenant does
not desire to exercise its Right of First Offer as to such space by Landlord, in
accordance with the provisions of subparagraph (B) below, shall be free to
consummate the contemplated lease transaction with said third party. Such space
shall be offered to Tenant upon the terms and conditions, and at the rate which
the Landlord would quote to such third party for the space, but in no event
shall the rental rate be less than the rent which Tenant is then paying. Such
terms and conditions may include, but not be limited to, escalations, pass
throughs, and other matters.
(1) If Tenant elects to add such offered space to its Lease, the
terms and conditions and rental rate on which such space shall be added will be
identical to those which Landlord would quote to such third party for such space
if it were to be available for leasing for a lease term scheduled to commence at
the time of the addition of the space, but in no event shall the rental be less
than the rental rate Tenant is paying for the Premises.
(2) If Tenant exercises such Right of First Offer with respect to any
such space so offered, Tenant will accept such space in an "as-is" condition
without any remodeling work or fix-up work to be performed by Landlord except as
provided in the notice from Landlord.
(3) Tenant must take all of the space offered by Landlord to Tenant
at any particular time and may not elect to lease only a portion thereof.
(4) Tenant's right to exercise its Right of First Offer shall be
conditioned on Tenant not having subleased more than twenty percent (20%) of the
original Premises.
(B) As provided in subparagraph (A) above, if Tenant does not exercise its
initial Right of First Offer, Landlord shall be free to initially lease such
space to whomever it chooses in accordance with the notification to Tenant. The
continuing Right of First Offer shall be offered to Tenant on the following
terms and conditions:
(1) Landlord agrees to notify Tenant in writing thirty (30) days
prior to the expiration of the existing Lease term (or upon vacation thereof by
the then Tenant thereof, successors, or assigns) that same will be available for
leasing by Tenant. Tenant shall have thirty (30) days after the receipt of any
such notice within which to notify Landlord in writing if Tenant desires to
lease such space for the balance of Tenant's Lease term or renewals hereunder.
If Tenant does not notify Landlord within said thirty (30) days period, Landlord
shall be free to lease such space to anyone whom it desires, and Tenant shall
not have further rights with respect to such space.
-12-
47. RENEWAL OPTION.
Provided Tenant is not in default in the performance of the terms and
conditions under this Lease and Tenant has not sublet or assigned more than
twenty percent (20%) of the leased premises, Tenant is hereby granted the option
to renew the term of this Lease for all space then under lease to Tenant for a
period of five (5) years ("Renewal Term"), to commence at the expiration of the
initial five (5) year term of this Lease. Tenant shall exercise said option by
giving Landlord written notification of such exercise at least six (6) months
prior to the expiration date of the initial term of the Lease. The base annual
rental for the Premises during the Renewal Term shall be mutually agreed upon by
Tenant and Landlord, provided, however, if Landlord and Tenant have not mutually
agreed to the base annual rental for the Premises during the Renewal Term on or
before thirty (30) days prior to the expiration date of the Lease term herein,
then this Renewal Option shall expire. Any such renewal of this Lease shall be
upon the same terms and conditions of this Lease, except (a) the base rent
during the Renewal Term shall be as provided above; (b) Tenant shall not have
the right to assign its renewal rights to a subtenant under this Lease; and (c)
the Premises will be provided in their then existing condition at the time the
Renewal Term commences.
-13-
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
date aforesaid.
LANDLORD: THE 1125 VENTURE
By: ENERGY PLAZA ASSOCIATES
By: /s/ X.X. Xxxxxxxxxx Partner
----------------------------------
X.X. Xxxxxxxxxx III
Executive Vice President
TENANT: XXXXXXX RESOURCES CORPORATION
By: /s/ Xxxx X. Xxxxxx Partner
----------------------------------
Xxxx X. Xxxxxx
Executive Vice President
STATE OF COLORADO )
) ss
COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this 24th day of July,
1990, by X.X. Xxxxxxxxxx III as Partner for Energy Plaza Associates, a Colorado
general partnership, as a co-venturer of The 1125 Venture, a Colorado joint
venture.
Witness my hand and official seal.
My Commission Expires: -----------------------------------
Notary Public
----------------------------- Address:
STATE OF COLORADO )
) ss
COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this 9th day of July,
1990 by Xxxx X. Xxxxxx as Executive Vice President of Xxxxxxx Resources
Corporation.
Witness my hand and official seal.
My Commission Expires: /s/
-----------------------------------
Notary Public
November 27, 1990 Address: 00000 Xxxx Xx.
----------------- Xxxxxxxx, XX 00000
-14-
EXHIBIT A
Space Plan/Budget Pricing Plan dated May 15, 1990, last revision date May
29, 1990, and initialed by Landlord and Tenant is part of this Lease, although
not attached hereto.
[DIAGRAM]
-1-
EXHIBIT B
---------
WORK LETTER AGREEMENT
---------------------
THIS WORK LETTER AGREEMENT is entered into as of the 24th day of July,
1990, by and between The 1125 Venture ("Landlord") and Xxxxxxx Resources
Corporation ("Tenant").
R E C I T A L S :
A. Concurrently with the execution of this Work letter Agreement, Landlord
and Tenant have entered into a lease (the "Lease") covering certain premises
(the "Premises"), more particularly described in Paragraph 1 of the Lease.
B. In order to induce Tenant to enter into the Lease (which is hereby
incorporated by reference to the extent that the provisions of this Work Letter
Agreement may apply thereto) and in consideration of the mutual covenants
hereinafter contained, Landlord and Tenant hereby agree as follows:
1. COMPLETION SCHEDULE. Within ten (10) days after the execution of the
-------------------
Lease, Landlord shall deliver to Tenant, for Tenant's review and approval, a
schedule (the "Work Schedule") setting forth a timetable for the planning and
completion of the installation of the Tenant Improvements to be constructed in
the Premises, and the beginning date (the "Commencement Date") for the term of
the Lease. The Work Schedule shall set forth each of the various items of work
to be done by or approval to be given by Landlord and Tenant in connection with
the completion of the Tenant Improvements. Such Schedule shall be submitted to
Tenant for its approval and, upon approval by both Landlord and Tenant, such
Schedule shall become the basis for completing the Tenant Improvement work. If
Tenant shall fail to approve the Work Schedule, as it may be modified after
discussions between Landlord and Tenant, within five (5) working days after the
date such Schedule is first received by Tenant, Landlord may, at its option,
terminate the Lease and all of its obligations thereunder.
2. TENANT IMPROVEMENTS. Reference herein to "Tenant Improvements" shall
-------------------
include all work to be done in the Premises pursuant to the Tenant Improvement
Plans described in Paragraph 3 below, including but not limited to, partitioning
, doors, ceilings, floor coverings, wall finishes (including paint and
wallcovering), electrical (including lighting, switching, telephones, outlets,
etc.), plumbing, heating, ventilating and air conditioning, fire protection,
cabinets and other millwork.
3. TENANT IMPROVEMENT PLANS. Immediately after the execution of the
------------------------
Lease, Tenant agrees to meet with Landlord's architect and/or space planner for
the purpose of preparing a space plan for the layout of the Premises. Based
upon such space plan, Landlord's architect shall prepare final working drawings
and specifications for the Tenant Improvements. Such final working drawings and
specifications may be referred to herein as the "Tenant Improvement Plans." The
Tenant Improvement Plans must be consistent with Landlord's standard
specifications (the "Standards") for tenant improvements for the Building, as
the same may be changed from time to time by Landlord.
4. NON-STANDARD TENANT IMPROVEMENTS. Landlord shall permit Tenant to
--------------------------------
deviate from the Standards for the Tenant Improvements; provided that: (a) the
deviations shall not be of a lesser quality than the Standards; (b) the total
lighting for the Premises shall not exceed one fixture per each fifty (50)
square feet of net rentable area; (c) the deviations conform to applicable
governmental regulations and necessary governmental permits and approvals have
been secured; (d) the deviations do not require building service beyond the
level normally provided to other tenants in the Building and do not overload the
floors; and (e) Landlord has determined in its sole discretion that the
deviations are of a nature and quality that are consistent with the overall
objectives of the Landlord for the Building.
5. FINAL PRICING AND DRAWING SCHEDULE. After the preparation of the space
----------------------------------
plan and after Tenant's written approval thereof, in accordance with the Work
Schedule, Landlord shall cause its architect to prepare and submit to Tenant the
final working drawings and specifications referred to in Paragraph 3 hereof.
Such working drawings shall be approved by Landlord and Tenant in accordance
with the Work Schedule and shall thereafter be submitted to the appropriate
governmental body by Landlord's contractor for plan checking and the issuance of
a building permit. Landlord with, Tenant's cooperation, shall cause to be made
any changes in the plans and specifications necessary to obtain the building
permit. Concurrent with the plan checking, Landlord shall have prepared a final
pricing proposal for Tenant's approval, in accordance with the Work Schedule,
taking into account any modifications which may be required to reflect changes
in the plans and specifications required by the Building Department of the City
and County of Denver. After final approval of the working drawings, no further
-1-
changes to the Tenant Improvement Plans may be made without the prior written
approval from both Landlord and Tenant, and then only after agreement by Tenant
to pay any excess costs resulting from the design and/or construction of such
changes which exceed the Tenant Allowance described in Paragraph 7 below.
Tenant hereby acknowledges that any such changes shall be subject to the terms
of Paragraph 8 hereof.
6. CONSTRUCTION OF TENANT IMPROVEMENTS. After the Tenant Improvement
-----------------------------------
Plans have been prepared and approved, the final pricing proposal has been
approved, and a building permit for the Tenant Improvements has been issued,
Landlord shall enter into a construction contract with its contractor for the
installation of the Tenant Improvements in accordance with the Tenant
Improvement Plans. Landlord shall supervise the completion of such work and
shall use all reasonable efforts to secure substantial completion of the work in
accordance with the Work Schedule. The cost of such work shall be paid as
provided in Paragraph 7 hereof. Landlord shall not be liable for any direct or
indirect damages as a result of delays in construction beyond Landlord's
reasonable control, including, but not limited to, acts of God, inability to
secure governmental approvals or permits, governmental restrictions, strikes,
availability of materials or labor or delays by Tenant (or its architect or
anyone performing services on behalf of Tenant).
7. PAYMENT OF COST OF THE TENANT IMPROVEMENTS.
------------------------------------------
(A) Landlord hereby grants to Tenant a "Tenant Allowance" of One Hundred
Ninety-seven Thousand Ninety-one and 33/100ths Dollars [$197,091.33],
(approximately $12.10 per square foot). Such Tenant Allowance shall be used
only for:
(i) Payment of the cost of preparing the space plan and the final
working drawings and specifications, including mechanical, electrical,
plumbing and structural drawings and of all other aspects of the Tenant
Improvement Plans. The Tenant Allowance may be used for payment of
extraordinary design work not included within the scope of Landlord's
building standard improvements or for payments to any other consultants,
designers, architects over than Landlord's architect, engineers, and/or
space planner, provided said payments be approved by Landlord and do not
exceed the Tenant Allowance herein specified.
(ii) The payment of plan check, permit, and license fees relating to
construction of the Tenant Improvements.
(iii) Construction of Tenant Improvements, including, without
limitation, the following:
(a) Installation within the Premises of all partitioning, doors,
floor coverings, ceilings, wall coverings, painting, millwork, and
similar items.
(b) All electrical wiring, lighting, fixtures, outlets and
switches, and other electrical work to be installed within the
Premises.
(c) The furnishing and installation of all duct work, terminal
boxes, diffusers and accessories required for the completion of the
heating, ventilation and air conditioning systems within the Premises,
including the cost of meter and key control for after-hours air
conditioning.
(d) Any additional Tenant requirements including, but not limited
to, odor control, special heating, ventilating and air conditioning,
noise or vibration control or other special systems.
(e) All fire and life safety control systems such as fire walls,
sprinklers, halon, fire alarms, including piping, wiring and
accessories installed within the Premises.
(f) All plumbing, fixtures, pipes and accessories to be installed
within the Premises.
(g) Testing and inspection costs.
(h) Contractor's fees, including but not limited to, any fees
based on general conditions.
(iv) All other costs to be expended by Landlord in the construction of
the Tenant Improvements, including those costs incurred by Landlord for
construction of elements of the
-2-
Tenant Improvements in the Premises, which construction was performed by
Landlord prior to the execution of this Lease by Landlord and Tenant (i.e.,
during or after the construction of the base Building) and which
construction is for the benefit of tenants and is customarily performed by
Landlord prior to the execution of leases for such space in the Building
for reasons of economics (examples of such construction would include the
extension of mechanical [including heating, ventilating and air
conditioning systems] and electrical distribution systems outside the core
of the Building, wall construction, column enclosures and painting outside
of the core of the Building, ceiling hanger wires and window treatment).
(B) The cost of each item shall be charged against the Tenant Allowance.
In the event that the cost of installing the Tenant Improvements, as established
by Landlord's final pricing schedule, shall exceed the Tenant Allowance, or if
any of the Tenant Improvements are not to be paid out of the Tenant Allowance as
provided in Paragraph 7(A) above, the excess shall be paid by Tenant to Landlord
prior to the commencement of construction of the Tenant Improvements.
(C) In the event that, after the Tenant Improvement Plans have been
prepared and a price therefor establishing by Landlord, Tenant shall require any
changes or substitutions to the Tenant Improvement Plans, any additional costs
thereof shall be paid by Tenant to Landlord prior to the commencement of such
work. Landlord shall have the right to decline Tenant's request for a change to
the Tenant Improvement Plans if such change would, in Landlord's opinion,
unreasonably delay construction of the Tenant Improvements.
(D) In the event that the cost of the Tenant Improvements increases as set
forth in Landlord's final pricing due to the requirements of any governmental
agency, Tenant shall pay Landlord the amount of such increase within five (5)
days of Landlord's written notice; provided, however, that Landlord shall first
apply toward such increase any remaining balance in the Tenant Allowance.
(E) Any unused portion of the Tenant Allowance upon completion of the
Tenant Improvements shall not be refunded to Tenant or available to Tenant as a
credit against any obligations of Tenant under the Lease.
8. COMPLETION AND RENTAL COMMENCEMENT DATE. The Commencement of the term
---------------------------------------
of the Lease shall not commence until the earlier of the following two dates:
(i) the date upon which Tenant takes possession of the Premises; or (ii) the
date upon which the Premises are ready for occupancy, i.e., the Tenant
Improvements have been substantially completed as evidenced by the final
inspection performed by the Building Department of the city and County of
Denver, or as determined by Landlord's architect or representative; provided
that if there shall be a delay in substantial completion of the Tenant
Improvements as a result of:
(a) Tenant's failure to approve any item or perform any other
obligation in accordance with and by the date specified in the Work
Schedule;
(b) Tenant's request for materials, finishes or installations other
than those readily available;
(c) Tenant's changes in the Tenant Improvement Plans after the
approval by Tenant;
(d) Tenant's request to deviate from the Standards for Tenant
Improvements;
then the commencement of the term of the Lease and the rental commencement date
shall be accelerated by the number of days of such delay. The Tenant
Improvements shall be deemed substantially complete notwithstanding the fact
that minor details of construction, mechanical adjustments or decorations which
do not materially interfere with Tenant's use and enjoyment of the Premises
remain to be performed (items normally referred to as "punch list" items).
9. ALTERNATE COMMENCEMENT DATE. If Landlord is unable to cause the
---------------------------
premises to be ready for occupancy by the commencement date for reasons other
than those set out in subsection (a) through (d) of Paragraph 8 above, or if the
Landlord shall have the premises ready for occupancy prior to the commencement
date set out in Paragraph 2 of the Lease, then in either such event the
commencement date of the Lease shall be on the first date the premises are ready
for occupancy; provided, however, if the date the premises are ready for
occupancy is not the first day of a month, then the commencement date shall be
the first day of the month immediately following the date the premises are ready
for occupancy. The period between the date the premises are ready for occupancy
and the commencement date shall be deemed to be the Interim Lease Term and
Tenant shall be obligated to pay rent for such Interim Lease
-3-
Term on a pro rata basis based on the base rent for the first full month of the
lease term and Tenant shall hold the premises during the Interim Lease Term
under all of the other terms and conditions of this Lease. If the base rent for
the first full month of the lease term is abated, the base rent for the Interim
Lease Term shall be based upon the first month's rental which is due under the
Lease, and shall be payable at the end of the rental abatement period. In the
event the commencement date set out in Section 2 of the Lease is changed as
provided for in this Paragraph 9, then if the premises are ready for occupancy
after the commencement date set out in Section 2 of the Lease the expiration
date of the lease term shall extend for the number of months set out in Section
2 of the Lease.
IN WITNESS WHEREOF, this Work Letter Agreement is executed as of the date
first above written.
LANDLORD: THE 1125 VENTURE
By: Energy Plaza Associates
By: /s/ Partner
-------------------------
X. X. Xxxxxxxxxx III
TENANT: XXXXXXX RESOURCES CORPORATION
By: /s/
--------------------------
Xxxx X. Xxxxxx
Executive Vice President
-4-
EXHIBIT C
RULES AND REGULATIONS
The Rules and Regulations set forth in this exhibit shall be and hereby are
made a part of the Lease to which they are attached. Whenever the terms
"Tenant" is used in these Rules and Regulations, it shall be deemed to include
Tenant, its employees or agents, and any other persons permitted by Tenant to
occupy or enter the Premises. The following Rules and Regulations may from time
to time be modified by Landlord in the manner set forth in Paragraph 18 of the
Lease.
1. OBSTRUCTION. The sidewalks, entries, passages, corridors, halls, lobbies,
stairways, elevators and other common facilities of the Building shall be
controlled by Landlord and shall not be obstructed by Tenant or used for any
purpose other than ingress or egress to and from the Premises. Tenant shall not
place any item in any of such locations, whether or not any such item
constitutes an obstruction, without the prior written consent of Landlord.
Landlord shall have the right to remove any obstruction or any such item without
notice to Tenant and at the expense of Tenant.
2. ORDINARY BUSINESS HOURS. The ordinary business hours of the Building shall
be from 6:00 A.M. to 6:00 P.M., Monday through Friday of each week, and from
8:00 A.M. to 2:00 P.M. every Saturday, excluding the legal holidays of New
Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and
Christmas Day.
3. DELIVERIES. Tenant shall insure that all deliveries of supplies to the
Premises shall be made only upon the elevator designated by Landlord for
deliveries and only during the ordinary business hours of the Building.
4. MOVING. Furniture and equipment shall be moved in or out of the Building
only upon the elevator designated by Landlord for deliveries and then only
during such hours and in such manner as may be prescribed by Landlord. Landlord
shall have the right to approve or disapprove the movers or moving company
employed by Tenant and Tenant shall cause such movers to use only the loading
facilities and elevator designated by Landlord.
5. HEAVY ARTICLES. No safe or article, the weight of which may, in the
reasonable opinion of Landlord, constitute a hazard or damage to the Building or
its equipment, shall be moved into the Premises. Safes and other heavy
equipment, the weight of which will not constitute a hazard or damage the
Building or its equipment shall be moved into, from or about the Building only
during such hours and in such manner as shall be prescribed by Landlord, and
Landlord shall have the right to designate the location of such articles in the
Premises.
6. NUISANCE. Tenant shall not do or permit anything to be done on the
Premises or in the Building or bring or keep anything therein which would in any
way constitute a nuisance or waste, or obstruct or interfere with the rights of
other tenants of the Building, or in any way injure or annoy them, or conflict
with the laws relating to fire, or with any regulations of the fire department,
or with any insurance policy upon the Building or any part thereof, or conflict
with any of the laws, codes, rules or ordinances of any governmental authority
having jurisdiction over the Building.
7. BUILDING SECURITY. Landlord may restrict access to and from the Premises
and the Building outside the ordinary business hours of the Building for reasons
of building security. Landlord may require identification of persons entering
and leaving the Building and, for this purpose, may issue building passes to
tenants of the Building.
8. PASS KEY. The Building Manager may at all times keep a pass key to the
Premises, and he and other agents of the Landlord shall at all times be allowed
admittance to the Premises; subject, however, to Tenant's reasonable security
requirements which may prohibit access except when accompanied by Tenant's
authorized security personnel.
9. LOCKS AND KEYS FOR PREMISES. Subject always to Tenant's reasonable
security requirements, no additional lock or locks shall be placed by Tenant on
any door in the Building and no existing lock shall be changed unless written
consent of Landlord shall first have been obtained. A reasonable number of keys
to the Premises and to the toilet rooms, if locked by Landlord, will be
furnished by Landlord, and Tenant shall not have any duplicate key made. At the
termination of this tenancy, Tenant shall promptly return to Landlord all keys
to offices and toilet rooms.
1
10. USE OF WATER FIXTURES. Water closets and other water fixtures shall not be
used for any purpose other than that for which the same are intended, and any
damage resulting to the same from misuse on the part of Tenant shall be paid for
by Tenant. No person shall waste water in any manner.
11. NO ANIMALS; EXCESSIVE NOISE. With the exception of seeing eye dogs for the
blind, no animals shall be allowed in the offices, halls, corridors and
elevators of the Building. No person shall disturb the occupants of this or
adjoining buildings or space by the use of any radio or musical instrument or by
the making of loud or improper noises.
12. BICYCLES. Bicycles or other vehicles shall not be permitted anywhere
inside or on the sidewalks outside of the Building, except in those areas
designated by Landlord for bicycle parking.
13. TRASH. Tenant shall not allow anything to be placed on the outside of the
Building, nor shall anything be thrown by Tenant out of the windows or doors, or
down the corridors, elevator shafts, or ventilating ducts or shafts of the
Building. All trash shall be placed in receptacles provided by Tenant on the
Premises or in any receptacles provided by Landlord for the Building.
14. WINDOWS. No window shades, blinds, screens or draperies will be attached
or detached by Tenant and no awnings shall be placed over the windows without
Landlord's prior written consent. Tenant agrees to abide by Landlord's rules
with respect to maintaining uniform curtains, draperies and linings at all
windows and hallways so that the Building will present a uniform exterior
appearance. Tenant will use its best efforts to have all curtains, draperies
and blinds closed at the end of each day in order to help conserve energy.
Except in case of fire or other emergency, Tenant shall not open any outside
window because the opening of windows interferes with the proper functioning of
the Building heating and air conditioning systems.
15. HAZARDOUS OPERATIONS AND ITEMS. Tenant shall not install or operate any
steam or gas engine or boiler, or carry on any mechanical business in the
Premises without Landlord's prior written consent, which consent may be withheld
in Landlord's absolute discretion. The use of oil, gas or inflammable liquids
for heating, lighting or any other purpose is expressly prohibited. Explosives
or other articles deemed extra hazardous shall not be brought into the Building.
16. HOURS FOR REPAIRS, MAINTENANCE AND ALTERATIONS. Any repairs, maintenance
and alterations required or permitted to be done by Tenant under the Lease shall
be done only during the ordinary business hours of the Building unless Landlord
shall have first consented to such work being done outside of such times. If
Tenant desires to have such work done by Landlord's employees on Saturdays,
Sundays, holidays or weekdays outside of ordinary business hours, Tenant shall
pay the extra cost of such labor.
17. NO DEFACING OF PREMISES. Except as permitted by Landlord, Tenant shall not
xxxx upon, paint signs upon, cut, drill into, drive nails or screws into, or in
any way deface the walls, ceilings, partitions or floors of the Premises or of
the Building, and any defacement, damage or injury caused by Tenant shall be
paid for by Tenant.
18. CHAIR PADS. During the entire term of this Lease, Tenant shall, at its
expense, install and maintain under all caster chairs a chair pad or carpet
casters to protect the carpeting.
19. SOLICITATION; FOOD AND BEVERAGES. Landlord reserves the right to restrict,
control or prohibit canvassing, soliciting and peddling within the Building.
Tenant shall not grant any concessions, licenses or permission for the sale or
taking of orders for food, beverages, services or merchandise in the Building,
nor install nor permit the installation or use of any machine or equipment for
dispensing food, beverages, services or merchandise, nor permit the preparation,
serving, distribution or delivery of food, beverages, services or merchandise
without the approval of Landlord and in compliance with arrangements prescribed
by Landlord.
2
THIRD AMENDMENT TO LEASE
BETWEEN
THE 1125 VENTURE (LANDLORD)
AND
XXXXXXX RESOURCES CORPORATION (TENANT)
This Third Amendment to Lease, made this 27th day of October, 1993, by and
between The 1125 Venture, a Colorado joint venture, hereinafter called
"Landlord", and Xxxxxxx Resources Corporation, a Delaware Corporation "Tenant".
WITNESSETH THAT:
WHEREAS, the Landlord and Tenant have previously entered into a Lease
Agreement dated July 24, 1990, a First Amendment to Lease dated October 25,
1990, and a Second Amendment to Lease dated November 16, 1990, (collectively,
the "Amended Lease"); and
WHEREAS, the Landlord and Tenant desire to amend the Amended Lease to (i)
add rentable area to the Premises; (ii) extend the term of the Lease; (iii)
specify new Base Rent; (iv) provide for Tenant Improvements (v) modify the
parking provisions; (vi) provide a Right of Negotiation on space on the 23rd
Floor; and, (vii) amend the existing Renewal Option.
NOW THEREFORE, in consideration of the mutual covenants herein contained
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged and confessed, Tenant and Landlord do hereby amend
the Lease as follows:
Except as expressly provided in the Third Amendment, the Amended Lease
shall remain in full force and effect. Except as expressly provided in this
Third Amendment, the term "Lease" as used in the Amended Lease shall refer to
the Amended Lease as modified by this Third Amendment. Capitalized terms used
in this Third Amendment and not otherwise defined herein shall have the
respective meanings set forth in the Amended Lease.
1. Third Additional Premises: Effective November 1, 1993, the Premises shall be
-------------------------
increased by One Thousand Four Hundred Ninety One and 00/100ths (1,491.00)
rentable square feet on the twenty-fourth floor of the Building and Four
Thousand Thirty Eight and 00/100ths (4,038.00) rentable square feet on the
twenty-third floor of the Building for a total increase of Five Thousand Five
Hundred Twenty Nine and 00/100ths (5,529.00) rentable square feet as shown on
Exhibit A attached hereto (collectively, the "Third Additional Premises"). As a
result, the Premises shall contain a total of Twenty Three Thousand Eight
Hundred Fifty and 00/100ths (23,850.00) rentable square feet in the Building.
Notwithstanding anything in Article 23 of the Amended Lease to the contrary, the
damage, or destruction, or the condemnation or
taking by eminent domain of the 4,038 rentable square feet of the Third
Additional Premises on the 23rd floor of the Building shall not affect Tenant's
obligations under the Amended Lease, as amended hereby, as to the 19,812
rentable square feet on the 24th floor of the Building, but shall only affect
Tenant's rights and obligations as to the 23rd floor space.
2. Term: Subject to and upon the terms and conditions set forth in this Third
----
Amendment to Lease, the term of this Lease shall be extended for a period
of Forty-Eight (48) months, and will terminate on the 31st day of October, 1999.
3. Rent: Commencing November 1, 1993, the base rent to be paid by Tenant
----
shall be revised as follows:
PERIOD ANNUAL BASE RENTAL MONTHLY BASE RENTAL
----------------------------------- ------------------ -------------------
November 1, 1993 - October 31,1994 $268,312.68 $22,359.3
November 1, 1994 - October 31, 1995 $290,672.04 $24,222.67
November 1, 1995 - October 31, 1996 $325,552.50 $27,129.38
November 1, 1996 - October 31, 1997 $325,552.50 $27,129.38
November 1, 1997 - October 31, 1998 $325,552.50 $27,129.38
November 1, 1998 - October 31, 1999 $349,402.00 $29,116.88
4. Tenant Improvements: Following the execution of this Third Amendment,
-------------------
Landlord shall complete the tenant improvements in accordance with the Work
Letter attached hereto as Exhibit B in a timely manner.
5. Parking: Effective November 1, 1993, Owner shall provide Tenant an
-------
additional five unreserved parking spaces for a total of twenty-one unreserved
parking spaces in the building parking garage ("Garage") for the term of this
Lease. The five additional parking spaces will be provided at the rate
determined by Landlord, which rate may change from time to time. Tenant shall
continue to pay the rate of $55.00 per space, per month on ten spaces as
provided in Paragraph 45 of the Lease, through October 31, 1995. Effective
November 1, 1995, all twenty-one parking spaces shall be provided at the rate
determined by Landlord, which rate may change from time to time.
6. Right of First Negotiation:
--------------------------
(a) Effective as of the date hereof, Tenant's Right of First Offer set
forth in Paragraph 46 of the Amended Lease shall be terminated and of no force
or effect.
(b) From time to time during the period from the date hereof until October
31, 1997 (the "Negotiation Period"), but no more than once in any one hundred
twenty (120) day period, Tenant may send a notice to Landlord ("Request Notice")
to request that Landlord advise Tenant of any Negotiation Space (as defined
hereinbelow) which is currently available (as defined hereinbelow).
2
(c) "Negotiation Space" shall mean any space which: (1) is located in that
portion of the twenty-third (23rd) floor of the Building known as Suite 2330 and
Suite 2340 and as shown on Exhibit C hereto, and (2) is "Available". The term
"Available" shall mean that the space in question is then offered in the
marketplace to the public at large for rent, free and clear of all claims and
rights of other parties, and space shall be deemed not to be or not to have
become Available if as to such space there is a lease, lease option or option or
other right of extension, renewal, expansion, refusal, negotiation or similar or
other right, either: (i) pursuant to any lease or written agreement which on
or before the date of Tenant's Request Notice is entered into or is the subject
of negotiations between Landlord and a prospective tenant of the Building (and
is entered into after the date of Tenant's Request Notice), or (ii) pursuant to
any extension or renewal of any of the foregoing, whether or not as set forth in
the original lease or written agreement, (iii) pursuant to any amendment or
modification of any of the foregoing (no matter when executed), or (iv) which at
any time during the Negotiation Period is made with or granted to any tenant
under any lease of space in the Building in effect during the Negotiation
Period.
(d) It is agreed and understood that (i) a proposed or actual assignment or
subletting by any tenant of any space shall not make the same Available for the
exercise of Tenant's rights hereunder unless Landlord elects to treat the same
as causing it to be Available or unless Landlord validly exercises its right, if
any, to recapture such space: (i) the default of any tenant of any space or its
desire to terminate its lease shall not make the same Available for the exercise
of Tenant's rights hereunder unless Landlord elects to treat the same to be
Available or unless Landlord exercises its right, if any, to terminate each
tenant's lease; and (iii) no space shall be considered Available if it is the
subject of any leasing activity at the time Landlord receives Tenant's Request
Notice, it being understood that leasing activity shall include negotiations
with a prospective tenant, whether or not a letter of intent or lease proposal
has been executed.
(e) Landlord shall respond to Tenant by written notice (the "Availability
Notice") within ten (10) business days after Landlord's receipt of the Request
Notice. The Availability shall notify Tenant of the economic terms and
conditions upon which Landlord would be willing to lease the Negotiation Space,
if any, to Tenant. Tenant shall have ten (10) calendar days after its receipt
of the Availability Notice in which to give Landlord its written notice
("Election Notice") of Tenant's intent to enter into negotiations to lease all
(but not a portion) of the Negotiation Space on the same terms and conditions
contained in the Amended Lease, except as otherwise stated in the Availability
Notice.
(f) If Tenant timely delivers its Election Notice, Landlord and Tenant
shall, during the thirty (30) day period following Landlord's receipt of the
Election Notice, negotiate in good faith for the lease of the Negotiation Space;
provided that the foregoing obligation to negotiate is non-exclusive and nothing
herein shall be deemed to prevent Landlord from negotiating with any other party
for the Negotiation
3
Space at any time after the Negotiation Period, whether or not Landlord and
Tenant are negotiating for the same, but subject to the aforesaid obligation to
negotiate in good faith.
(g) Any lease of the Negotiation Space shall be done by amendment to the
Amended Lease, in form prepared by Landlord and reasonably satisfactory to
Landlord and Tenant. Tenant shall accept the Negotiation Space in its "as-is"
condition, with all faults, except as otherwise agreed to Landlord and Tenant.
(h) In the event Tenant fails or elects not to timely deliver its Election
Notice, or in the event Landlord and Tenant fail to execute an amendment to the
Amended Lease prior to the expiration of the thirty (30) day period set forth
above, Tenant's rights with respect to the Negotiation Space shall be null and
void and Tenant shall have no rights with respect to any Negotiation Space,
until such time as Tenant receives another Availability Notice, and Landlord
shall be free to lease said space to any party, on any terms, until Landlord
next receives a valid Request Notice.
(i) Notwithstanding anything to the contrary contained herein, all rights
of Tenant pursuant to the Right of Negotiation shall automatically terminate
without notice and shall be of no further force and effect, whether or not
Tenant has timely exercised the Right of Negotiation granted herein, upon the
occurrence of the following events: (1) The existence at the time Tenant
exercises the Right of Negotiation or (at Landlord's option) at the time the
Negotiation Space is to be added to the Premises of any default on the part of
Tenant under the Amended Lease or of any state of facts which with the passage
of time or the giving of notice, or both, would constitute such a default; (2)
Tenant's third default under the Lease prior to the date the Negotiation Space
is to be added to the Premises, notwithstanding that all such defaults my
subsequently be cured, and; (3) Tenant's assignment or subleasing of all or any
portion of the Premises. In the event of a termination of the Right of
Negotiation pursuant to this Paragraph 6, Tenant shall reimburse Landlord for
all costs and expenses Landlord incurs in connection with Tenant's exercise of
the Right of Negotiation.
(j) This Right of Negotiation is personal to Xxxxxxx Resources Corporation,
a Delaware corporation, and may not be exercised by, and shall not be
transferable or assignable (voluntarily or involuntarily) to any person or
entity.
(k) Time shall be of the essence with respect to all of the provisions of
this Paragraph 6.
7. Renewal Option. Tenant shall continue to hold a Renewal Option pursuant to
--------------
Paragraph 47 of the Amended Lease with respect to the entire Premises currently
leased by Tenant in the Building, provided that such Renewal Option shall
commence at the expiration of the Lease term as extended pursuant to this Third
Amendment.
4
8. Tenant's Proportional Share. "Tenant's Proportionate Share" shall hereby
---------------------------
be amended to mean .050455 (5.05%).
9. Initial Basic Cost. "Initial Basic Cost" shall hereby be amended to mean
------------------
the actual Basic Cost for the Building for the calendar year 1993.
10. Compliance with Law:
-------------------
(a) Tenant acknowledges that the Americans with Disabilities Act of 1990
(as amended and as supplemented by further laws from time to time, the "Act")
imposes certain requirements upon the owners, lessees and operators of
commercial facilities and places of public accommodation, including, without
limitation, prohibitions on discrimination against any individual on the basis
of disability (which discrimination includes certain failures to design and
construct facilities for first occupancy that are readily accessible to and
usable by individuals with disabilities and certain failure, when making
alterations affecting the usability of a facility, to make the same in such a
manner that such altered portions are readily accessible to and usable by
individuals with disabilities). Accordingly Tenant agrees to take all proper
and necessary action to cause the Premises to be maintained, used and occupied
in compliance with the Act and, further to otherwise assume all responsibility
to ensure the Premises' continued compliance with all provisions of the Act
throughout the Term, as extended pursuant to this Third Amendment.
(b) Without limiting its obligations under the Amended Lease, Tenant
covenants and agrees to comply with all laws, rules, regulations and guidelines
now or hereafter made applicable to the Premises by governmental or other public
authorities respecting the disposal of waste, trash, garbage and other matter
(liquid or solid), generated by Tenant, its employees, agents, contractors,
invitees, licensees, guests and visitors, the disposal of which is not otherwise
the express obligation of Landlord under the Amended Lease, including, but not
limited to, laws, rules, regulations and guidelines respecting recycling and
other forms of reclamation (all of which are herein collectively referred to as
"Waste Management Requirements"). Tenant covenants and agrees to comply with
all rules and regulations established by Landlord to enable Landlord from time
to time to comply with Waste Management Requirements applicable to Landlord (i)
as owner of the Premises and (ii) in performing Landlord's obligations under the
Lease, if any.
11. Hazardous Materials.
-------------------
(a) Tenant shall not use, generate, manufacture, produce, store, release,
discharge, or dispose of, on, under or about the Premises or any part of the
Building, or transport to or from the Premises or any part of the building, any
Hazardous materials (defined below) or allow its employees, agents, contractors,
licensees, invitees or any other person or entity to do so.
5
(b) The term "Hazardous Materials" shall include without limitation: (A)
those substances included within the definitions of "hazardous substances,"
"hazardous materials," "toxic substances," or "solid waste" under all present
and future federal, state and local laws relating to the protection of human
health or the environment, including but not limited to the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, the Resource
Conservation and Recovery Act of 1976, the Safe Drinking Water and Toxic
Enforcement Act of 1986, and the Hazardous Materials Transportation Act, and in
the regulations promulgated pursuant to said laws; (B) those substances listed
in the United States Department of Transportation Table (49 CFR 172.101 and
amendments thereto) or designated by the Environmental Protection Agency (or any
successor agency) as hazardous substances (see, e.g., 40 CFR Part 302 and
--- ----
amendments thereto); (C) such other substances, materials and wastes which are
or become regulated under applicable local, state or federal law, or the United
States government, or which are to become classified as hazardous or toxic under
federal, state, or local laws or regulations; and any material, waste or
substance which is (1) petroleum, (2) asbestos, (3) polychlorinated byphenyls,
(4) designated as a "hazardous substance" pursuant to section 311 of the Clean
Water Act of 1977, 33 U.S.C. sections 1251, et seq. (33 U.S.C. - 1321) or listed
-- ---
pursuant to section 307 of the Clean Water Act of 1977 (33 U.S.C. - 1317); (5)
flammable explosives, or (6) radioactive materials.
(c) To the extent permitted by then applicable law, Tenant shall protect,
indemnify, defend and hold harmless Landlord, its employees and agents from and
against any and all claims, liabilities, losses, actions, costs and expenses
(including attorneys' fees and costs of defense) incurred by such indemnified
persons, or any of them, as the result of (A) the introduction into or about the
Building by Tenant, its employees, agents, licensees, invitees, contractors or
any other person or entity for whom Tenant is responsible (collectively
"Tenant's Agents") of any Hazardous Material, (B) the usage by Tenant or
Tenant's Agents of Hazardous Materials in or about the Building, (C) the
discharge or release in or about the building by Tenant or Tenant's Agents of
any Hazardous Materials, (D) any injury to or death of persons or damage to or
destruction of property resulting from the use by Tenant or Tenant's Agents of
Hazardous Materials in or about the Building, and (E) any failure of Tenant or
Tenant's Agents to observe the covenants set forth in Paragraph 10 herein.
Payment shall not be a condition precedent to enforcement of the foregoing
indemnification provisions.
12. Colorado Law: This Third Amendment shall be construed and governed by the
-------------
laws of the State of Colorado.
13. Authority: This Third Amendment shall be binding upon and inure to the
---------
benefit of the parties hereto, their respective heirs, legal representatives,
successors and assigns. Each party hereto and the persons signing below warrant
that the person signing below on such party's behalf is authorized to do so and
to bind such party to the terms of this Third Amendment.
6
14. Attorneys' Fees and Costs: In the event of any action at law or in equity
-------------------------
between the parties hereto to enforce any of the provisions hereof, any
unsuccessful party to such litigation shall pay to the successful party all
costs and expenses, including actual attorneys' (including costs and expenses
incurred in connection with all appeals) incurred therein by such successful
party, and such costs, expenses and attorneys; fees may be included in and as
part of such judgment. A successful party shall be any party who is entitled to
recover his costs of suit, whether or not the suit proceeds to final judgment.
15. Entire Agreement. No Amendment. This Third Amendment constitutes the
-------------------------------
entire agreement and understanding between the parties herein named with respect
to this Third Amendment and shall supersede all prior written and oral
agreements concerning the subject matter contained herein. This Third Amendment
may not be altered, amended, modified or otherwise changed in any respect
whatsoever except by a writing duly executed by authorized representatives of
the parties hereto. Each party acknowledges that it has read this Third
Amendment, fully understands all of the Third Amendment's terms and conditions,
and hereby executes this Third Amendment freely, voluntarily and with full
knowledge of its significance. This Third Amendment is entered into by the
undersigned parties freely and voluntarily and with and upon advice of counsel.
16. Severability. If any provision of this Third Amendment or the application
------------
thereof to any person or circumstances shall be invalid or unenforceable to any
extent, the remainder of this Third Amendment and the application of such
provisions to other persons or circumstances, other than those to which it is
held invalid, shall not be affected thereby and shall be enforced to the
furthest extent permitted by law, provided that the invalidity of such provision
does not materially affect the benefits accruing to any party hereto.
17. Counterparts. This Third Amendment may be executed in duplicates or
------------
counterparts, or both, and such duplicates or counterparts together shall
constitute but one original of the Third Amendment. Each duplicate and
counterpart shall be equally admissible in evidence, and each original shall
fully bind each party who has executed it.
18. Agreement to Perform Necessary Acts: Each party agrees that upon demand
-----------------------------------
therefor, it shall promptly perform all further acts and execute, acknowledge
and deliver all further instructions, instruments and documents which may be
reasonably necessary or useful to carry out the provisions of this Third
Amendment or to evidence, perfect or otherwise effectuate the rights and
remedies relating to this Third Amendment.
Except as otherwise provided herein, all other terms and conditions of the Lease
shall remain in full force and effect.
7
19. Captions and Headings: The titles or headings of the various sections
---------------------
hereof are intended solely for convenience of reference and are not intended and
shall not be deemed to or in any way be used to modify, explain or place any
construction upon any of the provisions of this Third Amendment.
Except as otherwise provided herein, all other terms and conditions o the Leas
shall remain in full force and effect.
IN WITNESS WHEREOF, this Third Amendment is executed as of the date first
above written.
LANDLORD: Metropolitan Life Insurance Company
a New York Corporation
Successor in Interest
By: /s/
--------------------------------------
Xxxxxxx X. Xxxxxx, Investment Officer
TENANT: Xxxxxxx Resources Corporation
a Delaware Corporation
By: /s/
--------------------------------------
Xxxx X. Xxxxxx, Exec. Vice-President
8
EXHIBIT A
[DIAGRAM]
1
EXHIBIT B
WORK LETTER AGREEMENT
THIS WORK LETTER AGREEMENT is entered into as of the ___ day of October,
1993, by and between The 1125 Venture ("Landlord") and Xxxxxxx Resources
Corporation ("Tenant").
R E C I T A L S:
A. Concurrently with the execution of this Work Letter Agreement, Landlord
and Tenant have entered into a Third Amendment to Lease (the "Lease Amendment")
covering certain premises (the "Premises"), more particularly described in
Paragraph 1 of the Lease:
B. In order to induce Tenant to enter into the Lease Amendment (which is
hereby incorporated by reference to the extent that the provisions of this Work
Letter Agreement may apply thereto) and in consideration of the mutual covenants
hereinafter contained, Landlord and Tenant hereby agrees as follows:
1. COMPLETION SCHEDULE. Within five (5) days after the execution of the
-------------------
Lease Amendment, Landlord shall deliver to Tenant, for Tenant's review and
approval, a schedule (the "Work Schedule") setting forth a timetable for the
planning and completion of the installation of the Tenant Improvements to be
constructed in the Third Additional Premises on the 23rd floor and the 24th
floor. The Work Schedule shall set forth each of the various items of work to
be done by or approval to be given by Landlord and Tenant in connection with the
completion of the Tenant Improvements. Such Work Schedule shall be submitted to
Tenant for its approval and, upon approval by both Landlord and Tenant, such
Work Schedule shall become the basis for completing the Tenant Improvement work.
If Tenant shall fail to approve the Work Schedule, as it may be modified after
discussions between Landlord and Tenant, within three (3) working days after the
date such Work Schedule is first received by Tenant, then rent shall start on
November 1, 1993 whether the space is ready or not.
2. TENANT IMPROVEMENTS. Reference herein to "Tenant Improvements" shall
-------------------
include all work to be done in the Third Additional Premises pursuant to the
space plan described in Exhibit "D" attached hereto and Paragraph 3 below,
including, but not limited to, providing a rear exit door, relocating upper and
lower kitchen cabinets with sink and dishwasher from an adjacent suite, and
demising that portion of the Third Additional Premises on the 23rd floor which
requires the separation of electrical, life safety, and heating and air
conditioning from the adjacent suite.
3. TENANT IMPROVEMENT PLANS. At the time of execution of the Lease
------------------------
Amendment, Tenant will have met with Landlord's architect and/or space planner
for the purpose of preparing a space plan for the layout of the Premises, and
both Landlord and Tenant will have approved said space plan. Based upon such
approved space plan, Landlord's architect shall prepare final working drawings
and specifications for the Tenant Improvements. Such space plan and final
working drawings and specifications may be referred to herein as the "Tenant
Improvement Plans." The Tenant Improvement Plans must be consistent with
Landlord's standard specifications (the "Standards") for tenant improvements for
the Building, as the same may be changed from time to time by Landlord. The
space plan was prepared by Interarc, signed October 29, 1993.
4. FINAL PRICING AND DRAWING SCHEDULE. After the preparation of the space
----------------------------------
plan and after Tenant's written approval thereof, in accordance with the Work
Schedule, Landlord shall cause its architect to prepare and submit to Tenant the
final working drawings and specifications referred to in Paragraph 3 hereof.
Such working drawings shall be in strict conformance with the approved space
plan and said working drawings shall be approved by Landlord and Tenant in
accordance with the Work Schedule and shall thereafter be submitted to the
appropriate governmental body by Landlord's contractor for plan checking and the
issuance of a building permit. Landlord, with Tenant's cooperation, shall cause
to be made any changes in the plans and specifications necessary to obtain the
building permit. Concurrent with the plan checking, Landlord shall have
prepared a final pricing proposal for Tenant's approval, in accordance with the
Work Schedule, taking into account any modifications which may be required to
reflect changes in the plans and specifications required by the Building
Department of the City and County of Denver. After final of the working
drawings, no further changes to the space plan may be made without the prior
written approval from both Landlord and Tenant, and then only after agreement by
Tenant to pay any costs resulting from the design and/or construction of such
changes in accordance with Paragraph 6 below. Tenant hereby acknowledges that
any such changes shall be subject to the terms of Paragraph 7 hereof.
1
5. CONSTRUCTION OF TENANT IMPROVEMENTS. After the Tenant Improvement
-----------------------------------
Plans have been prepared and approved (the final pricing proposal has been
approved), and a building permit for the Tenant Improvement has been issued,
Landlord shall enter into a construction contract with its contractor for the
installation of the Tenant Improvements in accordance with the Tenant
Improvement Plans. Landlord shall supervise the completion of such work and
shall use commercially reasonable efforts to secure substantial completion of
the work in accordance with the Work Schedule. The cost of such work shall be
paid as provided in Paragraph 6 hereof. Landlord shall not be liable for any
direct or indirect damages as a result of delays in construction beyond
Landlord's reasonable control, including, but not limited to, acts of God,
inability to secure governmental approvals or permits, governmental
restrictions, strikes, availability of materials or labor or delays by Tenant
(or its architect or anyone performing services on behalf of Tenant).
6. PAYMENT OF COST OF THE TENANT IMPROVEMENTS.
------------------------------------------
(A) Landlord hereby agrees to provide Tenant a Tenant Allowance of Twenty-
four Thousand Eight Hundred Forty-seven and 00/100ths Dollars ($24,847.00).
Such Tenant Allowance shall be used only for:
(i) Payment of the cost of preparing the space plan and the final
working drawings and specifications, including mechanical, electrical,
plumbing and structural drawings and of all other aspects of the
Tenant Improvement Plans.
(ii) The payment of plan check, permit, and license fees relating to
construction of the Tenant Improvements.
(iii) Construction of Tenant Improvements indicated on the signed
Tenant Improvement Plans, including, without limitation, the
following:
(a) Installation within the Third Additional Premises of all
partitioning and doors to demise the Third Additional Premises and to
provide paint for the new demising wall. Landlord shall use
reasonable efforts to re-use the existing wood finish in the reception
area.
(b) All electrical wiring, lighting, fixtures, outlets and
switches, and other electrical work to be installed within the Third
Additional Premises associates with the demised wall and installation
of a dishwasher.
(c) The furnishing and installation of all duct work, terminal
boxes, diffusers and accessories required for the completion of the
heating, ventilation and air conditioning systems within the Third
Additional Premises due to the new demising wall.
(d) All fire and life safety control systems such as fire walls,
sprinklers, halon, fire alarms, including piping, wiring and
accessories installed within the Third Additional Premises.
(e) Relocation of the sink and upper and lower cabinets, and
relocation of shelving.
(f) All plumbing, fixtures, pipes and accessories to be installed
within the Third Additional Premises for the relocated sink and
dishwasher.
(g) Testing and inspection costs.
(h) Contractor's fees, including but not limited to, any fees
based on general conditions.
(B) In the event that, after the space plan has been approved by both
Landlord and Tenant, and a price therefor established by Landlord, Tenant shall
require any changes or substitutions to the Tenant Improvement Plans, any
additional costs thereof shall be paid by Tenant to Landlord prior to the
commencement of such work. Landlord shall have the right to decline Tenant's
request for a change to the Tenant Improvement Plans if such change would, in
Landlord's opinion, unreasonably delay construction of the Tenant Improvements.
(C) In the event that the cost of the Tenant Improvements increases as set
forth in Landlord's final pricing due to the requirements of any governmental
agency for any changes in the approved space
2
plan required by the Tenant, then Tenant shall pay Landlord the amount of such
increase upon Landlord's written notice prior to the commencement of such work.
(D) Upon completion of the Tenant Improvements, any remaining balance of
the Tenant Allowance, whether or not due to a change in the Tenant Improvement
Plans required by Tenant after the space plan is approved that reduces the scope
of the Tenant Improvements shall not be refunded to Tenant or available to
Tenant as a credit against any obligations of Tenant under the Lease.
7. COMPLETION AND RENTAL COMMENCEMENT DATE. The Commencement Date of the
---------------------------------------
term of the Lease Amendment shall be November 1, 1993. The commencement of rent
for the 4,038 rentable square feet of the Third Additional Premises of the 23rd
floor shall be the earlier of the following two dates: (i) the date upon which
Tenant takes possession of the 23rd floor space: or (ii) the date upon which
the 23rd floor space is ready for occupancy, i.e., the Tenant Improvements have
been substantially completed as evidenced by the final inspection performed by
the Building Department of the City and County of Denver, or as determined by
Landlord's architect or representative; provided that if there shall be a delay
in substantial completion of the Tenant Improvements beyond November 1, 1993 as
a result of:
(a) Tenant's failure to approve any item or perform any other
obligation in accordance with and by the date specified in the Work
Schedule;
(b) Tenant's request for materials, finishes or installation other
than those readily available;
(c) Tenant's changes in the Tenant Improvement Plans after the
approval by Tenant;
(d) Tenant's request to deviate from the Standards for Tenant
Improvements;
then the rental commencement date for the 23rd floor space shall be November 1,
1993.
In the event either Tenant takes possession of the 23rd floor space prior to
November 1, 1993, or the 23rd floor space is ready for occupancy prior to
November 1, 1993, then Tenant shall pay to Landlord $137,10 per day until
November 1, 1993, the Commencement Date. This period between the date the 23rd
floor space is ready for occupancy and the Commencement Date of the term shall
be deemed to be the Interim Lease term and Tenant shall hold the 23rd floor
space during the Interim Lease term under all of the other terms and conditions
of the Amended Lease. If Landlord is unable to cause the 23rd floor space to be
ready for occupancy by November 1, 1993, for reasons other than those set out in
section (a) through (d) above, then Landlord shall xxxxx daily rental of $137.10
from the rent indicated in Paragraph 3 of the Lease Amendment until such space
is ready for occupancy. The Tenant Improvements shall be deemed substantially
complete notwithstanding the fact that minor details of construction, mechanical
adjustments or decorations which do no materially interfere with Tenant's use
and enjoyment of the Premises remain to be performed (items normally referred to
as "punch list" items).
3
IN WITNESS WHEREOF, this Work Letter Agreement is executed as of the date
first above written.
LANDLORD: Metropolitan Life Insurance Company
a New York Corporation
Successor in Interest
By: /s/
_____________________________________
Xxxxxxx X. Xxxxxx, Investment Officer
TENANT: XXXXXXX RESOURCES CORPORATION,
a Delaware Corporation
By: /s/
_____________________________________
Xxxx X. Xxxxxx, Executive Vice-President
4
FIRST AMENDMENT TO LEASE
BETWEEN
THE 1125 VENTURE (LANDLORD)
AND
XXXXXXX RESOURCES CORPORATION
This First Amendment to Lease, made this 25th day of October 1990, by
and between The 1125 Venture, a Colorado joint venture, hereinafter called
"Landlord", and Xxxxxxx Resources Corporation, a Delaware Corporation,
hereinafter called "Tenant".
WITNESSETH THAT:
WHEREAS, heretofore and on July 24, 1990, Landlord and Tenant entered
into a written Lease Agreement covering space on the Twenty-Forth (24th) Floor,
for Suite 2400 of the Denver National Bank Building located at 0000 Xxxxxxxxxxx
Xxxxxx in Denver, Colorado; and
WHEREAS, the Landlord and Tenant desire to amend the Lease Agreement to:
(i) add rentable area to the Premises through the term of the lease, (ii)
specify new base rent, (iii) increase to tenant finish allowance, and (iv)
provide for a temporary Premises; and
WHEREAS, the Landlord and Tenant desire to amend the Lease Agreement as
hereinafter set forth;
NOW THEREFORE, in consideration of the mutual covenants herein contained
and for other good and valuable consideration, the receipt and sufficiency of
which hereby acknowledged and confessed, Tenant and Landlord do hereby amend the
Lease Agreement as follows:
1. First Additional Premises: On the Commencement Date (as defined in Paragraph
8 of the Work Letter of the Lease) the Premises shall be increased by
approximately 1,188.10 square feet
of rentable area (the "First Additional Premises"), located in Suite 2400 on the
twenty-fourth (24th) floor of the Building, as shown on Exhibit "A" attached
hereto and the Premises shall contain a total of approximately 17,476.64 square
feet of rentable area. Tenant's use and occupancy of the First Additional
Premises shall be on the same terms and conditions as set forth in the Lease
except as set forth herein.
2. Rent: In accordance with Paragraph 4, Rent, of the Lease, beginning on the
rental commencement date of the Lease, Tenant hereby agrees to pay a base annual
rental (herein called "base rent") in the sum of One Million Thousand Six
Hundred Forty-Five and 04/100ths Dollars ($1,013,645.04). On the rental
commencement date, the base rent to be paid by Tenant shall be amended as
follows:
PERIOD BASE ANNUAL RENTAL MONTHLY BASE RENTAL
------ ------------------ -------------------
November 1, 1990- $192,243.00 $16,020.25
October 31, 1991
November 1, 1991- 192,243.00 16,020.25
October 31, 1992
November 1, 1992- 192,243.00 16,020.25
October 31, 1993
November 1, 1993- 209,719.68 17,476.64
October 31, 1994
November 1, 1994- 227,196.36 18,933.03
October 31, 1995
3. Tenant Improvement Allowance: In accordance with Paragraph 7 of the Work
Letter of the Lease, the Tenant Allowance shall be amended by this First
Amendment, and Landlord hereby grants to Tenant a Tenant Allowance of Two
Hundred Eleven Thousand Four Hundred Sixty-Seven and 34/100ths ($211,467.34)
(approximately $12.10 per square foot). Such Tenant Allowance as amended herein
shall be administered in accordance with the Work Letter of the Lease.
2
4. Temporary Premises. Effective October 1, 1990, and continuing until the
Premises are ready for occupancy, Tenant shall occupy Suite 2130 containing
approximately 13,547.50 rentable square feet per Exhibit "A1" attached hereto
(the "Temporary Premises") under the same terms and conditions as this Lease
except that Tenant shall pay a base monthly rental in the sum of Twelve Thousand
Four Hundred Eighteen and 55/100ths Dollars ($12,418.55) for each month or
portion thereof until Tenant relocates to the Premises. At the time the Premises
are ready for occupancy as defined in Paragraph 2 (B) of the Lease, Tenant shall
relocate to the Premises and shall vacate the Temporary Premises and all of the
Tenant's rights to the Temporary Premises shall cease.
5. Miscellaneous.
(a) Capitalized terms not defined herein shall have the same meaning as
set forth in the Lease.
(b) Except as modified herein, the Lease remains in full force and
effect and is hereby ratified by Landlord and Tenant.
(c) This First Amendment shall be binding upon and inure to the benefit
of the parties hereto and their heirs, personal representatives, successors and
assigns.
(d) This First Amendment contains the entire agreement of Landlord and
Tenant with respect to the subject matter hereof, and may not be amended or
modified except by an instrument executed in writing by Landlord and Tenant.
(e) This Agreement shall be governed by and construed in accordance with
the laws of the State of Colorado.
Except as otherwise provided herein, all other terms and conditions of the Lease
Agreement shall remain in full force and effect.
3
IN WITNESS WHEREOF, this First Amendment to Lease is executed as of the date
first above written.
LANDLORD: The 1125 Venture
By: Energy Plaza Associates
By: , Partner
--------------------------
X.X. Xxxxxxxxxx, III
TENANT: Xxxxxxx Resources Corporation
By:
__________________________
Xxxx X. Xxxxxx
Executive Vice President
STATE OF COLORADO )
) ss.
COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this 25th day of
October, 1990, by X.X. Xxxxxxxxxx, III as Partner for Energy Plaza Associates, a
Colorado general partnership, as a co-venturer of The 1125 Venture, a Colorado
joint venture.
Witness my hand and official seal.
My Commission Expires: /s/
--------------------------------
Notary Public
1-21-91 Address:
-------------------------
STATE OF COLORADO )
) ss.
COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this 24th day of
October, 1990, by Xxxx X. Xxxxxx as Executive Vice President for Xxxxxxx
Resources Corporation.
Witness my hand and official seal.
My Commission Expires: /s/
--------------------------------
Notary Public
1-27-90 Address:
-------------------------
4
EXHIBIT A
Space Plan/Budget Pricing Plan dated May 15, 1990, last revision date
October 4, 1990, and initialed by Landlord and Tenant is part of this Lease,
although not attached hereto.
[DIAGRAM]
EXHIBIT A1
BARRET RESOURCES
TEMPORARY PREMISES
13,547.5 RSF
[DIAGRAM]
SECOND AMENDMENT TO LEASE
BETWEEN
THE 1125 VENTURE (LANDLORD)
AND
XXXXXXX RESOURCES CORPORATION
This Second Amendment to Lease, made this 16th day of November 1990, by
and between The 1125 Venture, a Colorado joint venture, hereinafter called
"Landlord", and Xxxxxxx Resources Corporation, a Delaware Corporation,
hereinafter called "Tenant".
WITNESSETH THAT:
WHEREAS, heretofore and on July 24, 1990, Landlord and Tenant entered
into a written Lease Agreement covering space on the Twenty-Forth (24th) Floor,
for Suite 2400 of the Denver National Bank Building located at 0000 Xxxxxxxxxxx
Xxxxxx in Denver, Colorado; and
WHEREAS, on October 25, 1990, Landlord and Tenant entered into a First
Amendment to Lease (The "First Amendment") pursuant to which Tenant leased
certain additional premises (The "First Additional Premises"); and
WHEREAS, the Landlord and Tenant desire to amend the Lease Agreement to:
(i) add rentable area to the Premises through the term of the lease, (ii)
specify new base rent, and (iii) increase the tenant finish allowance, and
WHEREAS, the Landlord and Tenant desire to amend the Lease Agreement as
hereinafter set forth;
NOW THEREFORE, in consideration of the mutual covenants herein contained
and for other good and valuable consideration, the receipt and sufficiency of
which hereby
acknowledged and confessed, Tenant and Landlord do hereby amend the Lease
Agreement as follows:
1. Second Additional Premises: On the Commencement Date (as defined in
Paragraph 8 of the Work Letter of the Lease) the Premises shall be increased by
approximately 844.75 square feet of rentable area (the "Second Additional
Premises"), located in Suite 2400 on the twenty-fourth (24th) floor of the
Building, as shown on Exhibit "A" attached hereto and the Premises shall contain
a total of approximately 18,321.39 square feet of rentable area. Tenant's use
and occupancy of the Second Additional Premises shall be on the same terms and
conditions as set forth in the Lease except as set forth herein.
2. Rent: In accordance with Paragraph 4, Rent, of the Lease, beginning on
the rental commencement date of the Lease, Tenant hereby agrees to pay a base
annual rental (herein called "base rent") in the sum of One Million Sixty Two
Thousand Six Hundred Forty and 68/100ths Dollars ($1,062,640.68). On the rental
commencement date, the base rent to be paid by Tenant shall be amended as
follows:
PERIOD BASE ANNUAL RENTAL MONTHLY BASE RENTAL
------ ------------------ -------------------
November 1, 1990 - $201,535.32 $16,794.61
October 31, 1991
November 1, 1991 - 201,535.32 16,794.61
October 31, 1992
November 1, 1992 - 201,535.32 16,794.61
October 31, 1993
November 1, 1993 - 219,856.68 18,321.39
October 31, 1994
November 1, 1994 - 238,178.04 19,848.17
October 31, 1995
3. Tenant Improvement Allowance: In accordance with Paragraph 7 of the
Work Letter of the Lease, the Tenant Allowance shall be amended by this Second
Amendment, and Landlord
2
hereby grants to Tenant a Tenant Allowance of Two Hundred Twenty-One Thousand
Six Hundred Eighty-Eight and 80/100ths ($221,688.80) (approximately $12.10 per
square foot). Such Tenant Allowance as amended herein shall be administered in
accordance with the Work Letter of the Lease.
4. Miscellaneous.
(a) Capitalized terms not defined herein shall have the same meaning
as set forth in the Lease.
(b) Except as modified herein, the Lease remains in full force and
effect and is hereby ratified by Landlord and Tenant.
(c) This Second Amendment shall be binding upon and inure to the
benefit of the parties hereto and their heirs, personal representatives,
successors and assigns.
(d) This Second Amendment contains the entire agreement of Landlord
and Tenant with respect to the subject matter hereof, and may not be amended or
modified except by an instrument executed in writing by Landlord and Tenant.
(e) This Agreement shall be governed by and construed in accordance
with the laws of the State of Colorado.
Except as otherwise provided herein, all other terms and conditions of the Lease
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, this Second Amendment to Lease is executed as of the
date first above written.
LANDLORD: The 1125 Venture
By: Energy Plaza Associates
By: /s/ X.X. Xxxxxxxxxx, III, Partner
-----------------------------------
X.X. Xxxxxxxxxx, III
3
TENANT: Xxxxxxx Resources Corporation
By: /s/ Xxxx X. Xxxxxx
------------------------
Xxxx X. Xxxxxx
Executive Vice President
STATE OF COLORADO )
) ss.
COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this 19th day of
November, 1990, by X.X. Xxxxxxxxxx, III as Partner for Energy Plaza Associates,
a Colorado general partnership, as a co-venturer of The 1125 Venture, a Colorado
joint venture.
Witness my hand and official seal.
My Commission Expires: /s/
------------------------------
Notary Public
1-12-91 Address:
----------------------
STATE OF COLORADO )
) ss.
COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this 16th day of
November, 1990, by Xxxx X. Xxxxxx as Executive Vice President for Xxxxxxx
Resources Corporation.
Witness my hand and official seal.
My Commission Expires: /s/
------------------------------
Notary Public
11-27-94 Address:
---------------------
4
EXHIBIT A
Space Plan/Budget Pricing Plan dated May 15, 1990, last revision date
October 4, 1990, and initialed by Landlord and Tenant is part of this Lease,
although not attached hereto.
[DIAGRAM]
PAGE 2 OF
[DIAGRAM]
EXHIBIT D
SPACE PLAN
Space Plan by Interarc, Inc. for Xxxxx 0000 xxx Xxxxx 0000 dated October
27, 1993 and signed by Tenant on October 29, 1993 are incorporated herein by
this reference.
[DIAGRAM]
CONSENT TO SUBLEASE
-------------------
Sublet Premises: 0000 00xx Xxxxxx, Xxxxx 0000
Date of Prime Lease: July 1, 1990
Date of First Amendment: October 25, 1990
Date of Second Amendment: November 16, 1990
Date of Third Amendment: November 1, 1993
Date of Sublease: June 1, 1996
Subtenant: Osmotics Corporation
Sublessor: Xxxxxxx Resources Corporation
Landlord: Metropolitan Life Insurance Company
Pursuant to the terms of your lease ("Prime Lease") covering the above captioned
premises, as the same may have been amended to the date hereof, you have
requested our consent to a sublease (the "Sublease") (dated as described in the
above caption) to the above-captioned Subtenant, a copy of which Sublease is
annexed hereto as Exhibit A and made a part hereof.
---------
We hereby grant our consent to the Sublease upon the following express terms and
conditions:
1. The Sublease is subject and subordinate to the Prime Lease and to all
of its terms, covenants, conditions, provisions and agreements.
2. Except for those sections under the Prime Lease, a copy of which has
been provided to Subtenant by Sublessor, the Subtenant shall perform
faithfully and be bound by all of the terms, covenants, conditions,
provisions and agreements of the Prime Lease, for the period covered by
the Sublet Premises.
3. Neither the Sublease nor this consent thereto shall:
(a) release or discharge you from any liability, whether past, present
or future, under the Prime Lease;
(b) operate as an approval by us to or for any of the specific terms,
covenants, conditions, provisions or agreements of the Sublease and
we shall not be bound thereby;
(c) be construed to modify, waive or affect any of the terms, covenants,
conditions, provisions or agreements of the Prime Lease, or to waive
any breach thereof, or to waive, reduce or derogate from any of our
rights as Landlord thereunder, or to enlarge or increase our
obligations as Landlord thereunder; or
(d) be construed as a consent by us to any further subletting either by
you or by the subtenant or to any assignment by you of the Prime
Lease or assignment by the
Subtenant of the Sublease, whether or not the Sublease purports to
permit the same and, without limiting the generality of the
foregoing, both you and the Subtenant agree that the Subtenant has
no right whatsoever to assign, mortgage or encumber the Sublease nor
to sublet any portion of the Sublet Premises or permit any portion
of the Sublet Premises to be used or occupied by any other party;
further, in connection herewith, both you and the Subtenant agree
that an assignment by operation of law or a transfer of control of
Subtenant (including but not limited to transfer of the controlling
interest of the stock of Subtenant, if Subtenant is a corporation)
shall be deemed to be a prohibited assignment hereunder.
4. You shall not be released from any liability under the Prime Lease
because of our failure to give notice of default under or in respect of
any of the terms, covenants, conditions, provisions or agreements of
the Prime Lease.
5. In the event of your default under the provisions of the Prime Lease,
the rent due from the Subtenant under the Sublease shall be deemed
assigned to us and we shall have the right, under such default, at any
time at our option, to give notice to the Subtenant of such assignment.
We shall credit you with any rent received by us under such assignment
but the acceptance of any payment on account of rent from the Subtenant
as the result of any such default shall in no manner whatsoever serve
to release you from any liability under the terms, covenants,
conditions, provisions or agreement under the Prime Lease. No such
payment of rent or any other payment by the Subtenant directly to
Landlord and/or acceptance of such payment(s) by Landlord, regardless
of the circumstance or reasons therefor, shall in any manner whatsoever
be deemed an attornment by the Subtenant to us in the absence of either
a specific written agreement signed by us to such an effect or written
notice from Landlord to Subtenant pursuant to paragraph 7 below.
6. Both you and the Subtenant shall be and continue to be liable for the
payment of (a) all bills rendered by us for charges incurred by the
Subtenant for services and materials supplied to the Sublet Premises,
including without limitation, any services and materials supplied
beyond that which is required by the terms of the Prime Lease and (b)
any additional costs incurred by Landlord for maintenance and repair of
the Sublet Premises as the result of Subtenant (rather than you)
occupying the Sublet Premises (including but not limited to any excess
cost to Landlord for services furnished to or for the Sublet Premises
resulting from the extent to which Subtenant uses them for purpose
other than as set forth in the Prime Lease).
7. The term of the Sublease shall expire and come to an end, regardless of
any provision of the Sublease to the contrary, upon the earlier of (i)
its natural expiration date or any premature termination date thereof
(ii) concurrently with any premature termination or natural expiration
of the Prime Lease (whether by consent or other right, now or hereafter
agreed to by Landlord or Prime Tenant, or by operation of law or at
Landlord's option in the event of default by Prime Tenant).
Notwithstanding the foregoing, in the event that the Term (as defined
in the Prime Lease) of the Prime Lease should expire or terminate prior
to the Term of the Sublease, (as defined in paragraph 2), it is agreed
that, at the option of Landlord, which option shall be exercisable by
written notice to Subtenant prior
2
to or upon the effective date of such termination, Subtenant shall be
bound to Landlord under the terms, covenants and conditions of the
Sublease as provided in paragraph 8 below, for the remaining balance of
the natural term of the Sublease (as opposed to early termination)
thereof, with the same force and effect as if Landlord were the
Sublessor under such Sublease, and Subtenant does hereby agree to
attorn to Landlord as its landlord, such attornment to be effective and
self-operative without the execution of any further instruments on the
part of any of the parties to this Agreement immediately upon
Landlord's exercise of the aforementioned option.
8. In the event Landlord exercises its option of attornment as provided in
paragraph 7 above, Subtenant shall observe and perform: (i) each of the
terms, covenants and conditions of the Sublease that Landlord
designates by observed and performed, and (ii) such other terms,
covenants and conditions to which the parties may agree. It is further
agreed that Landlord shall not be:
(a) liable for any act or omission of Sublessor;
(b) obligated to cure any default of any prior Sublessor which occurred
prior to the time that Landlord succeeded to the interest of
Landlord under the Sublease; or
(c) subject to any offsets or defenses which Subtenant may be entitled
to assert against any prior landlord (including Sublessor); or
(d) bound by any payment of rent or additional rent by Subtenant to any
prior landlord (including Sublessor) for more than one month in
advance; or
(e) bound by any amendment or modification of the Sublease made without
the written consent of Landlord; or
(f) liable or responsible for or with respect to the retention,
application and/or return to Subtenant of any security deposit paid
to any prior landlord (including Sublessor), whether or not still
held by such prior landlord, unless and until Landlord has actually
received for its own account as Landlord the full amount of such
security deposit.
9. This consent is not assignable, nor shall this consent be a consent to
any amendment, modification, extension or renewal of the Sublease,
without Landlord's prior written consent.
10. You covenant and agree that under no circumstances shall we be liable
for any brokerage commission or other charge or expense in connection
with the Sublease and you hereby indemnify and agree to protect, defend
and hold us harmless against same and against any liability, loss,
damage, cost or expense (including but not limited to counsel fees) in
connection with any claim for such brokerage commission. Further, the
Subtenant represents and warrants that it has dealt with no brokers
other than those fees are to be paid by you. The Subtenant hereby
indemnifies and agrees to protect, defend and hold us harmless against
any liability, loss, damage, cost or expense (including but not limited
to counsel fees) in connection with any claim for any brokerage
commission by any person
3
acting for Subtenant or claiming any commission on the basis of
contracts or dealings with Subtenant.
11. You and Subtenant understand and acknowledge that Landlord's consent
hereto is not a consent to any improvement or alteration work being
performed in the demised premises, that Landlord's consent must be
separately sought and will not necessarily be given, and that if such
consent is given the same will be subject to you signing Landlord's
standard form of agreement with respect to work being performed by
persons other than Landlord unless otherwise agreed to in writing by
Landlord.
This consent shall be of no force or effect unless and until you (as
Prime Tenant) and the Subtenant executed and deliver to Landlord a copy
of this consent, which execution and delivery shall indicate your and
Subtenant's acknowledgment of and agreement to the foregoing terms and
conditions and shall constitute Subtenant's acknowledgment that it has
received a copy of the Prime Lease from you.
ACKNOWLEDGED AND AGREED:
Prime Tenant: Xxxxxxx Resources Corporation
By: /s/
______________________________________
Its: CFO
______________________________________
Subtenant: Osmotics Corporation
By: /s/
______________________________________
Its: President
______________________________________
Landlord: Metropolitan Life Insurance Company
By: /s/
______________________________________
Its: ______________________________________
4
EXHIBIT A
---------
(attach full copy of sublease as Exhibit A)
-------------------------------------------
5
EXHIBIT "B"
TENANT IMPROVEMENTS
0000 - 00XX XXXXXX, XXXXX 0000
Paint reception area
Paint all walls that are not vinyl-covered
Shampoo all carpeting
Remove wall and door frame as indicated below
Remove all attached name tags
[DIAGRAM]
EXHIBIT B
---------
Neither Tenant nor anyone claiming by, through or under Tenant shall
discriminate against or engage in the segregation of any person, or group of
persons on account of race, color, creed, national origin, or ancestry in the
sale, lease sublease, transfer use, occupancy, tenure, or enjoyment of the
Building or the land used in connection with the Building (hereafter the
"Project"), nor shall Tenant or any person claiming under or through Tenant,
establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use or occupancy
of tenant, lessees, subtenants, sublessees, or vendees of the Project.
2
