EXHIBIT 10.14
SUBLEASE
1. PARTIES
This Sublease is entered into by and between EVANSGROUP, INC. Sublessor, and
PENNACO ENERGY, INC., Sublessee, as a Sublease under the Master Lease dated
October 1, 1994, as amended by First Amendment to Lease dated October 10,
1995, entered into by AMSTAR DENVER, LTD as lessor, and Sublessor under this
Sublease as Lessee: a copy of the Master Lease is the First Amendment to
Lease attached hereto as Exhibit A.
2. PROVISIONS CONSTITUTING SUBLEASE
(a) This Sublease is subject to all of the terms and conditions of the
Master Lease (dated October 1, 1994 and First Amendment dated October 10,
1995) in Exhibit A and Sublessee shall assume and perform the obligations of
Sublessor and Lessee in said Master Lease, to the extent said terms and
conditions are applicable to the Premises subleased pursuant to this
Sublease. Sublessee shall not commit or permit to be committed on the
Premises any act or omission which shall violate any term or condition of the
Master Lease. In the event of the termination of Sublessor's interest as
Lessee under the Master Lease for any reason, then this Sublease shall
terminate coincidentally therewith without any liability of Sublessor to
Sublessee.
(b) All of the terms and conditions contained in the Exhibit A Master
Lease and First Amendment to Lease are incorporated herein, except for those
terms and conditions in this Sublease which supersede the Master Lease and
first Amendment to Lease, as terms and conditions of this Sublease (with each
reference therein to Lessor and Lessee to be deemed to refer to Sublessor and
Sublessee) and, along with all of the following Sections set out in this
Sublease, shall be the complete terms and conditions of this Sublease.
3. PREMISES
Sublessor leases to Sublessee and Sublessee hires from Sublessor the
following described Premises together with the appurtenances, situated in the
City of Denver, County of Denver, State of Colorado, approximately 11,524
rentable square feet, 0000 00xx Xx., Xxxxx 000, Xxxxxx, Xx. 00000.
4. RENTAL
Sublessee shall pay to Sublessor as rent for the Premises in advance on the
first day of each calendar month of the term of this Sublease without
deduction, offset, prior notice or demand, in lawful money of the United
States, the sum of Fourteen Thousand Four Hundred Five Dollars and Zero Cents
($14,405.00). If the commencement date is not the first day of the month, or
if the Sublease termination date is not the first day of the month, or if the
Sublease termination date is not the last day of the month, a prorated
monthly installment shall be paid at the then current rate for the fractional
month during which the Sublease commences and/or terminated.
Receipt of Twenty Eight Thousand Eight Hundred Ten Dollars and Zero Cents is
hereby acknowledged for rental for the first and second month and the
additional amount of Fourteen Thousand Four Hundred Five Dollars as
non-interest bearing security for performance under this Sublease. In the
event Sublessee has performed all of the terms and conditions of this
Sublease throughout the term, upon Sublessee vacating the Premises, the
amount paid as a security deposit shall be returned to Sublessee after first
deducting any sums owing to Sublessor.
5. TERM
(a) The term of this Sublease shall be for a period of Twenty Eight
Months commencing on _______, 1998 and ending on September 30, 2000.
(b) In the event Sublessor is unable to deliver possession of the
Premises at the commencement of the term, Sublessor shall not be liable for
any damage caused thereby, nor shall this Sublease be void or voidable but
Sublessee shall not be liable for rent until such time as Sublessor offers to
deliver possession of the Premises to Sublessee, but the term hereof shall
not be extended by such delay. If Sublessee, with Sublessor's consent, takes
possession prior to the commencement of the term, Sublessee shall do so
subject to all of the covenants and conditions hereof and shall pay rent for
the period ending with the commencement of the term at the same rental as
that prescribed for the first month of the term, prorated at the rate of
1/30th thereof per day, to be adjusted upon Lessor's approval of this
agreement forty-five (45) days from approval of this document by Lessor.
6. USE
Sublessee shall use the Premises for General Office and for no other purpose
without the prior written consent of Sublessor.
Sublessee's business shall be established and conducted throughout the term
hereof in a first class manner. Sublessee shall not use the Premises for, or
carry on, or permit to be carried on, any offensive, noisy or dangerous trade
business, manufacture or occupation nor permit any auction sale to be held or
conducted on or about the Premises. Sublessee shall not do or suffer
anything to be done upon the Premises which will cause structural injury to
the Premises or the building of which the Premises form a part. The Premises
shall not be overloaded and no machinery, apparatus or other appliance shall
be used or operated in or upon the Premises which will in any manner injure,
vibrate or shake the Premises or the building of which it is a part. No use
shall be made of the Premises which will in any way impair the efficient
operation of the sprinkler system (if any) within the building containing the
Premises. Sublessee shall not leave the Premises unoccupied or vacant during
their term. No musical instrument of any sort, or any noise making device
will be operated or allowed upon the Premises for the purpose of attracting
trade or otherwise. Sublessee shall not use or permit the use of the Premises
or any part thereof for any purpose which will increase the existing rate of
insurance upon the building in which the Premises are located, or cause a
cancellation of any insurance policy covering the building or any part
thereof. If any act on the part of Sublessee or use of the Premises by
Sublessee shall cause, directly or indirectly, any increase of Sublessor's
insurance expense, said additional expense shall be paid by Sublessee to
Sublessor upon demand. No such payment by Sublessee shall limit Sublessor in
the exercise of any other rights or remedies, or constitute a waiver of
Sublessor's right to require Sublessee to discontinue such act or use.
7. NOTICES
All notices or demands of any kind required or desired to be given by
Sublessor or Sublessee hereunder shall be in writing and shall be deemed
delivered forty-eight (48) hours after depositing the notice or demand in the
United States mail, certified or registered, postage prepaid, addressed to
the Lessor, Sublessor or Sublessee respectively at the addresses set forth
after their signatures at the end of the Sublease. All rent and other
payments due under this Sublease or the Master lease with the exception of
operating expense pass throughs which Sublessor shall remain liable for shall
be made by Sublessee to Sublessor at the same address.
8. ADDITIONAL PROVISIONS
1. The Monthly rental indicated in paragraph 4 of this Sublease shall be
full service. Sublessor shall remain responsible for all operating expense
pass throughs as provided in the Master Lease.
2. The reception desk shall remain part of the Premises.
3. Commencing with full execution of this Sublease and Landlord's approval
of same, Sublessor shall provide Sublessee with six (6) offices, free of
charge.
4. In the event Sublessor is unable to deliver possession of the Premises
as stated in paragraph 5, then Sublessor shall provide Sublessee with four
(4) additional offices, free of charge. In the event Sublessor is unable to
deliver the
Premises by June 15, 1998, Sublessor shall provide Sublessee with four (4)
days free rent for every day subsequent to June 15, 1998, that Sublessor
fails to deliver the Premises.
5. Commencing with occupancy of the Premises by Sublessee, Sublessee's
notice address shall become the Premises.
6. Any agreement, if any, to purchase all or part of the furniture, audio
and telephone systems located in the Premises shall be separate from this
Sublease agreement.
Dated: June, 10, 1998
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SUBLESSOR: EVANSGROUP, INC. SUBLESSEE: PENNACO ENERGY, INC.
Xxxx X. Xxxxxxxx
By /s/ XXXXX X. XXXXXX By /s/ XXXX X. XXXXXXXX
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Xxxxx X. Xxxxxx, Xxxx X. Xxxxxxxx,
President Senior Vice President
By By
Address 0000 0xx Xx., #000 Address 000 Xxxxxxxxx Xx. S. #290
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City Xxxxxx Xxxxx XX 00000 City Xxxxxxxxx Xxxxx XX 00000
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The undersigned, Lessor under the Master Lease attached as Exhibit A, hereby
consents to the subletting of the Premises described herein on the terms and
conditions contained in this Sublease. This consent shall apply only to this
Sublease and shall not be deemed to be a consent to any other Sublease.
Dated: , 19 LESSOR: AMSTAR DENVER, LTD,
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a Colorado limited partnership
By: ADCBD, LTD.,
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a Colorado limited partnership,
its General Partner
By AMSTAR CAPITAL MANAGEMENT
CORPORATION,
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a Colorado corporation,
its General Partner
By /s/ XXX X. XXXXXXXX
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Xxx X. Xxxxxxxx, Vice President
Address 0000 00xx xx., #0000
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City Denver State CO
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Telephone 000-000-0000
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LEASE AGREEMENT
INDEPENDENCE PLAZA
DENVER COLORADO
THIS LEASE AGREEMENT ("Lease") is entered into as of the Date, and by and
between the Landlord and Tenant, identified in Section 1.1 below.
1. BASIC LEASE DEFINITIONS, EXHIBITS AND ADDITIONAL DEFINITIONS.
1.1 BASIC LEASE DEFINITIONS. In this Lease, the following defined terms
have the meanings indicated:
(a) "Date" means October 1, 1994.
(b) "Landlord" means Amstar Denver, Ltd., a Colorado limited
partnership.
(c) "Tenant" means Evansgroup, Inc., a Utah corporation.
(d) "Premises" means those premises known as Suite 700, located on
the 7th floor of the Building and identified on EXHIBIT A, which contain
approximately 10,105 rentable square feet. The Premises do not include any
areas above the finished ceiling or below the finished floor covering
installed in the Premises or any other areas not shown on EXHIBIT A as
being part of the Premises. Landlord reserves, for Landlord's exclusive
use, any of the following (other than those installed for Tenant's
exclusive use) that may be located in the Premises: janitor closets,
stairways and stairwells; fan, mechanical, electrical, telephone and
similar rooms; and elevator, pipe and other vertical shafts, flues and
ducts.
(e) "Use" means general office use only.
(f) "Term" means the duration of this Lease, which will be
approximately seventy-two (72) months, beginning on the "Commencement Date"
(as defined in EXHIBIT B) and ending on the "Expiration Date" (as defined
below), unless terminated earlier or extended further as provided in this
Lease. The "Expiration Date" means (i) if the Commencement Date is the
first day of a month, the date which is seventy-two (72) months from the
date preceding the Commencement Date; or (ii) if the Commencement Date is
not the first day of a month, the date which is seventy-two (72) months
from the last day of the month in which the Commencement Date occurs.
(g) "Base Rent" means the Rent payable according to Section 3.1,
which will be in an amount per month or portion thereof during the Term as
follows:
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MONTHS AMOUNT OF BASE RENT PAYABLE PER MONTH
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1 $4,252.52
2-12 $9,473.43
13-24 $10,105.00
25-36 $10,526.04
37-48 $10,947.09
49-60 $11,368.13
61-72 $11,789.16
(h) "Tenant's Share" means, with respect to the calculation of
Additional Rent according to Section 3.2, 1.765%.
(i) "Base Year" means the calendar year ending December 31, 1994.
(j) "Security Deposit" means $0.00.
(k) "Landlord's Building Address" means:
Suite 0000 Xxxxxxxxxxxx Xxxxx
0000 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Property Manager
(l) "Landlord's General Address" means:
Suite 0000 Xxxxxxxxxxxx Xxxxx
0000 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: General Counsel
(m) "Tenant's Notice Address" means:
for notices given before the Commencement Date:
Evansgroup, Inc.
0000 Xxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxx XxXxxxxx, President
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and for notices given after the Commencement Date:
Evansgroup, Inc.
0000 Xxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxx XxXxxxxx, President
(n) "Tenant's Invoice Address" means:
Evansgroup, Inc.
0000 Xxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxx XxXxxxxx, President
(o) "Brokers" means the following brokers who will be paid by
Landlord: CB Commercial, Xxxxxx and Company and Spectrum Real Estate
Advisors, LLC; and the following brokers who will be paid by Tenant:
________________________________________________________________________.
(p) "Liability Insurance Amount" means $1,000,000.
1.2 EXHIBITS AND RIDERS. The Exhibits and Riders listed below are
attached to and incorporated in this Lease. In the event of any inconsistency
between such Exhibits or Riders and the terms and provisions of this Lease, the
terms and provisions of the Exhibits and Riders will control. The Exhibits to
this Lease are:
Exhibit A -- Plan Delineating the Premises
Exhibit B -- Possession and Leasehold Improvements Agreement
Exhibit C -- Occupancy Estoppel Certificate
Exhibit D -- Rules and Regulations
Exhibit E -- Lease Addendum
1.3 ADDITIONAL DEFINITIONS. In addition to those terms defined in
Section 1.1 and other sections of this Lease, the following defined terms when
used in this Lease have the meanings indicated:
(a) "Additional Rent" means the Rent payable according to
Section 3.2.
(b) "Affiliates" of a party means that party's parent, subsidiary and
affiliated corporations and its and their partners, venturers, directors,
officers, shareholders, agents, servants and employees.
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(c) "Building" means the office and retail building, parking garage
and other improvements commonly known as Independence Plaza, located on
the Land and in which the Premises are located.
(d) "Building Standard" means the scope and quality of leasehold
improvements, Building systems or Building services, as the context may
require, generally offered from time to time to all office tenants of the
Building.
(e) "Business Hours" means the hours from 7:00 a.m. to 6:00 p.m. on
Monday through Friday and from 9:00 a.m. to 12:00 noon on Saturday,
excluding statutory or legal holidays.
(f) "Common Areas" means certain interior and exterior common and
public areas located on the Land and in the Building as may be designated
by Landlord for the nonexclusive use in common by Tenant, Landlord and
other tenants, and their employees, guests, customers, agents and invitees.
If the Building is connected to other buildings by underground tunnels or
elevated bridges over public streets, Common Areas will include such
bridges and tunnels; provided, however, that Landlord and owners of such
other buildings will have the right in their sole discretion to adopt rules
and regulations relating to bridge and tunnel use.
(g) "Expenses" means the aggregate of any and all costs (other than
those expressly excluded below) incurred or accrued during each calendar
year according to generally accepted accounting principles for operating,
managing, administering, equipping, securing, protecting, insuring,
heating, cooling, ventilating, lighting, repairing, replacing, renewing,
cleaning, maintaining, decorating, inspecting, and providing water, sewer
and other energy and utilities to, the Land, Building and Common Areas;
management fees calculated according to the management agreement between
Landlord and its managing agents; fees and expenses (including reasonable
attorneys' fees) incurred in contesting the validity of any Laws that would
cause an increase in Expenses; depreciation on personal property and
moveable equipment which is or should be capitalized on Landlord's books;
and costs (whether capital or not) that are incurred in order to conform to
changes subsequent to the Date in any Laws, or that are intended to reduce
Expenses or the rate of increase in Expenses (such costs will not be
included in Expenses for the Base Year and will otherwise be charged to
Expenses in annual installments over the useful life of the items for which
such costs are incurred [in the case of items required by changes in Laws]
or over the period Landlord reasonably estimated that it will take for the
savings in Expenses achieved by such items to equal their cost [in the case
of items intended to reduce Expenses or their rate of increase], and in
either case together with interest, each calendar year such costs are
charged to Expenses, on the unamortized balance at the average Prime Rate
in effect during such calendar year). Expenses will not include
(1) mortgage principal or interest; (2) ground lease payments; (3) leasing
commissions; (4) costs of advertising space for lease in the Building;
(5) costs for which Landlord is reimbursed by insurance proceeds or from
tenants of the
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Building (other than such tenants' regular contributions to
Expenses); (6) any depreciation or capital expenditures (except as
expressly provided above); (7) legal fees incurred for negotiating leases
or collecting rents; and (8) costs directly and solely related to the
maintenance and operation of the entity that constitutes the Landlord, such
as accounting fees incurred solely for the purpose of reporting Landlord's
financial condition. For each calendar year during the Term, the amount by
which those Expenses that vary with occupancy (such as cleaning costs and
utilities) would have increased had the Building been 95% occupied and
operational and had all Building services been provided to all tenants will
be reasonably determined and the amount of such increase will be included
in Expenses for such calendar year.
(h) "Land" means the real property located at 0000 00xx Xxxxxx,
Xxxxxx, Xxxxxxxx, less any portions that may be conveyed separately from
the Building by Landlord from time to time.
(i) "Laws" means any and all present or future federal, state or
local laws, statutes, ordinances, rules, regulations or orders of any and
all governmental or quasi-governmental authorities having jurisdiction.
(j) "Prime Rate" means the rate of interest announced from time to
time by Norwest Bank Colorado, N.A., Denver, or any successor to it, as its
prime rate. If Norwest Bank Colorado, N.A., Denver or any successor to it
ceases to announce a prime rate, Landlord will designate a reasonably
comparable financial institution for purposes of determining the Prime
Rate.
(k) "Rent" means the Base Rent, Additional Rent and all other amounts
required to be paid by Tenant under this Lease.
(l) "Taxes" means the amount incurred or accrued during each calendar
year according to generally accepted accounting principles for: all ad
valorem real and personal property taxes and assessments, special or
otherwise, levied upon or with respect to the Land or Building, the
personal property used in operating the Building, and the rents and
additional charges payable by tenants of the Building, and imposed by any
taxing authority having jurisdiction; all taxes, levies and charges which
may be assessed, levied or imposed in replacement of, or in addition to,
all or any part of ad valorem real or personal property taxes or
assessments as revenue sources, and which in whole or in part are measured
or calculated by or based upon the Land or Building, the leasehold estate
of Landlord or the tenants of the Building, or the rents and other charges
payable by such tenants; capital and place-of-business taxes, and other
similar taxes assessed relating to the Common Areas; and any reasonable
expenses incurred by Landlord in attempting to reduce or avoid an increase
in Taxes, including, without limitation, reasonable legal fees and costs.
Taxes will not include any net income taxes of Landlord.
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2. GRANT OF LEASE.
2.1 DEMISE. Subject to the terms, covenants, conditions and provisions of
this Lease, Landlord leases to Tenant and Tenant leases from Landlord the
Premises, together with the nonexclusive right to use the Common Areas, for the
Term.
2.2 QUIET ENJOYMENT. Landlord covenants that during the Term, Tenant will
have quiet and peaceable possession of the Premises by, through and under
Landlord, subject to the terms, covenants, conditions and provisions of this
Lease, and Landlord will not disturb such possession except as expressly
provided in this Lease.
2.3 LANDLORD AND TENANT COVENANTS. Landlord covenants to observe and
perform all of the terms, covenants and conditions applicable to Landlord in
this Lease. Tenant covenants to pay the Rent when due, and to observe and
perform all of the terms, covenants and conditions applicable to Tenant in this
Lease.
3. RENT.
3.1 BASE RENT. Commencing on the Commencement Date and then throughout
the Term, Tenant agrees to pay Landlord Base Rent according to the following
provisions. Base Rent during each month (or portion of a month) described in
Section 1.1(g) will be payable in equal monthly installments for such month (or
portion), in advance, on or before the first day of each and every month during
the Term. However, if the Term commences on other than the first day of a month
or ends on other than the last day of a month, Base Rent for such month will be
appropriately adjusted on a prorated basis.
3.2 ADDITIONAL RENT. Tenant agrees to pay Landlord, as Additional Rent,
in the manner provided below for each calendar year subsequent to the Base Year
that contains any part of the Term, Tenant's Share of (i) the amount by which
Expenses for such calendar year exceed Expenses for the Base Year ("Additional
Expenses"); and (ii) the amount by which Taxes for such calendar year exceed
Taxes for the Base Year ("Additional Taxes").
(a) ESTIMATED PAYMENTS. Prior to or as soon as practicable after the
beginning of each calendar year subsequent to the Base Year, Landlord will
notify Tenant of Landlord's estimate of Tenant's Share of Additional
Expenses and Additional Taxes for the ensuing calendar year. On or before
the first day of each month during the ensuing calendar year, Tenant will
pay to Landlord, in advance, 1/12 of such estimated amounts, provided that
until such notice is given with respect to the ensuing calendar year,
Tenant will continue to pay on the basis of the prior calendar year's
estimate until the month after the month in which such notice is given. In
the month Tenant first pays based on Landlord's new estimate, Tenant will
pay to Landlord 1/12 of the difference between the new estimate and the
prior year's estimate for each month which has elapsed since the beginning
of the current calendar year. If at any time or times it appears to
Landlord that Tenant's Share of Additional
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Expenses or Tenant's Share of Additional Taxes for the then-current
calendar year will vary from Landlord's estimate by more than 5%, Landlord
may, by notice to Tenant, revise its estimate for such year and subsequent
payments by Tenant for such year will be based upon the revised estimate.
(b) ANNUAL SETTLEMENT. As soon as practicable after the close of
each calendar year subsequent to the Base Year, Landlord will deliver to
Tenant its statement of Tenant's Share of Additional Expenses and
Additional Taxes for such calendar year. If on the basis of such statement
Tenant owes an amount that is less than the estimated payments previously
made by Tenant for such calendar year, Landlord will either refund such
excess amount to Tenant or credit such excess amount against the next
payment(s), if any, due from Tenant to Landlord. If on the basis of such
statement Tenant owes an amount that is more than the estimated payments
previously made by Tenant for such calendar year, Tenant will pay the
deficiency to Landlord within 30 days after the delivery of such statement.
If this Lease commences on a day other than the first day of a calendar
year or terminates on a day other than the last day of a calendar year,
Tenant's Share of Additional Expenses and Additional Taxes applicable to
the calendar year in which such commencement or termination occurs will be
prorated on the basis of the number of days within such calendar year that
are within the Term.
(c) FINAL PAYMENT. Tenant's obligation to pay the Additional Rent
provided for in this Section 3.2 which is accrued but not paid for periods
prior to the expiration or early termination of the Term will survive such
expiration or early termination. Prior to or as soon as practicable after
the expiration or early termination of the Term, Landlord may submit an
invoice to Tenant stating Landlord's estimate of the amount by which
Tenant's Share of Additional Expenses and Additional Taxes through the date
of such expiration or early termination will exceed Tenant's estimated
payments of Additional Rent for the calendar year in which such expiration
or termination has occurred or will occur. Tenant will pay the amount of
any such excess to Landlord within 30 days after the date of Landlord's
invoice. In the event that Tenant is entitled to a refund pursuant to this
Section 3.2, Landlord's obligation to refund any such amounts shall survive
termination or expiration of the Term.
3.3 OTHER TAXES. Tenant will reimburse Landlord upon demand for any and
all taxes payable by Landlord (other than net income taxes and taxes included in
Taxes) whether or not now customary or within the contemplation of Landlord and
Tenant: (a) upon, measured by or reasonably attributable to the cost or value
of Tenant's equipment, furniture, fixtures and other personal property located
in the Premises; (b) upon or measured by Rent; (c) upon or with respect to the
possession, leasing, operation, management, maintenance, alteration, repair, use
or occupancy by Tenant of the Premises or any portion of the Premises; and
(d) upon this transaction or any document to which Tenant is a party creating or
transferring an interest or an estate in the Premises. If it is not lawful for
Tenant to reimburse Landlord, the Base Rent payable to Landlord under this Lease
will be revised to yield to Landlord the same net rental after the imposition of
any such tax upon Landlord as would have been payable to Landlord prior to the
imposition of any such tax.
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3.4 TERMS OF PAYMENT. All Base Rent, Additional Rent and other Rent will
be paid to Landlord in lawful money of the United States of America, at
Landlord's Building Address or to such other person or at such other place as
Landlord may from time to time designate in writing, without notice or demand
and without right of deduction, abatement or set-off, except as otherwise
expressly provided in this Lease.
3.5 INTEREST ON LATE PAYMENTS; LATE CHARGE. All amounts payable under
this Lease by Tenant to Landlord, if not paid when due, will bear interest from
the due date until paid at the lesser of the highest interest rate permitted by
law or 5% in excess of the then-current Prime Rate. Landlord, at Landlord's
option, in addition to past due interest, may charge Tenant a late charge for
all payments more than five (5) days past due, equal to the greater of 5% of the
amount of said late payment or the maximum amount permitted by law.
3.6 RIGHT TO ACCEPT PAYMENTS. No receipt by Landlord of an amount less
than Tenant's full amount due will be deemed to be other than payment "on
account," nor will any endorsement or statement on any check or any accompanying
letter effect or evidence an accord and satisfaction. Landlord may accept such
check or payment without prejudice to Landlord's right to recover the balance or
pursue any right of Landlord. No payments by Tenant to Landlord after the
expiration or other termination of the Term, or after the giving of any notice
(other than a demand for payment of money) by Landlord to Tenant, will
reinstate, continue or extend the Term or make ineffective any notice given to
Tenant prior to such payment. After notice or commencement of a suit, or after
final judgment granting Landlord possession of the Premises, Landlord may
receive and collect any sums of Rent due under this Lease, and such receipt will
not void any notice or in any manner affect any pending suit or any judgment
obtained.
4. USE AND OCCUPANCY.
4.1 USE. Tenant agrees to use and occupy the Premises only for the Use
described in Section 1.1(e), or for such other purpose as Landlord expressly
authorizes in writing.
4.2 COMPLIANCE.
(a) Tenant agrees to use the Premises in a safe, careful and proper
manner, and to comply with all Laws applicable to Tenant's use, occupancy
or alteration of the Premises or the condition of the Premises resulting
from such use, occupancy or alteration, at Tenant's sole cost and expense.
(b) Landlord and Tenant agree that, during the Term, each will comply
with all Laws governing, and all procedures established by Landlord for,
the use, abatement, removal, storage, disposal or transport of any
substances, chemicals or materials declared to be, or regulated as,
hazardous or toxic under any applicable Laws ("Hazardous Substances") and
any required or permitted alteration, repair, maintenance, restoration,
removal or other work in or about the Premises, Building or Land that
involves or affects any Hazardous
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Substances. Except as may be expressly permitted by Landlord in writing,
Tenant will not store, use, release, produce, process or dispose in, on
or about, or transport to or from, the Premises, Building or Land any
Hazardous Substances. Each party will indemnify and hold the other and
the other's Affiliates harmless from and against any and all claims,
costs and liabilities (including reasonable attorneys' fees) arising out
of or in connection with any breach by such party of its covenants under
this Section 4.2(b). The parties' obligations under this Section 4.2(b)
will survive the expiration or early termination of the Term.
4.3 OCCUPANCY. Tenant will not do or permit anything which obstructs or
interferes with other tenants' rights or with Landlord's providing Building
services, or which injures or annoys other tenants. Tenant will not cause,
maintain or permit any nuisance in or about the Premises and will keep the
Premises free of debris, and anything of a dangerous, noxious, toxic or
offensive nature or which could create a fire hazard or undue vibration, heat or
noise. If any item of equipment, building material or other property brought
into the Building by Tenant or on Tenant's request causes a dangerous, noxious,
toxic or offensive effect (including an environmental effect) and in Landlord's
reasonable opinion such effect will not be permanent but will only be temporary
and is able to be eliminated, then Tenant will not be required to remove such
item, provided that Tenant promptly and diligently causes such effect to be
eliminated, pays for all costs of elimination and indemnifies Landlord against
all liabilities arising from such effect. Tenant will not make or permit any
use of the Premises which may jeopardize any insurance coverage, increase the
cost of insurance or require additional insurance coverage. If by reason of
Tenant's failure to comply with the provisions of this Section 4.3, (a) any
insurance coverage is jeopardized, then Landlord will have the option to
terminate this Lease; or (b) insurance premiums are increased, then Landlord may
require Tenant to immediately pay Landlord as Rent the amount of the increase in
insurance premiums.
5. SERVICES AND UTILITIES.
5.1 LANDLORD'S STANDARD SERVICES. During the Term, Landlord will operate
and maintain the Building in compliance with all applicable Laws and according
to those standards from time to time prevailing for comparable office buildings
in the Central Business District of Denver, Colorado. Landlord will provide the
following services according to such standards, the costs of which will be
included in Expenses to the extent provided in Section 1.3(g):
(a) repair, maintenance and replacement of the Common Areas, all
structural elements of the Building and all general mechanical, plumbing
and electrical systems installed in the Building, but excluding those
portions of any mechanical, plumbing or electrical systems that exceed
Building Standard and exclusively serve the Premises;
(b) heating, ventilating and air conditioning for the Premises and
interior Common Areas during Business Hours, at temperatures and in amounts
as may be reasonably required for comfortable use and occupancy under
normal business office operations with "Customary Office Equipment" (as
used in this Lease, "Customary Office
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Equipment" includes typewriters, calculators, dictation recorders, desk
top personal computers and printers and similar devices and equipment;
but will not include any machines, devices or equipment that adversely
affect the temperature otherwise maintained in the Premises or that
require a voltage other than 120 volts, single phase, such as, e.g.,
data processing or heavy-duty computer or reproduction equipment);
(c) electricity for lighting and operating Customary Office Equipment
in the Premises during Business Hours in an amount not to exceed 3.5
kilowatts per square foot of the Premises per Business Hour;
(d) water for small kitchens, washrooms and drinking fountains;
(e) janitorial services to the Premises and Common Areas;
(f) passenger elevators for access to and from the floor(s) on which
the Premises are located;
(g) toilet facilities, including necessary washroom supplies
sufficient for Tenant's normal use;
(h) electric lighting for all Common Areas that require electric
light during the day or are open at night, including replacement of tubes
and ballasts in lighting fixtures; and
(i) replacement of tubes and ballasts in those Building Standard
lighting fixtures installed in the Premises.
5.2 ADDITIONAL SERVICES.
(a) If Tenant requires heating, ventilating or air conditioning for
the Premises during hours other than Business Hours, Landlord will furnish
the same for the hours specified in a request from Tenant, provided the
request is made in the manner reasonably designated by Landlord for such
requests from time to time and at least 48 hours prior to the time the
additional service is required. Tenant will pay for such additional
services at the standard hourly rate reasonably determined by Landlord from
time to time.
(b) If Tenant requires electric current, water or any other energy at
times or in amounts in excess of those provided by Landlord according to
Section 5.1, such excess electric, water or other energy requirements will
be supplied only with Landlord's consent, which consent will not be
unreasonably withheld. If Landlord grants such consent, Tenant will pay
all costs of meter service and installation of facilities or professional
services necessary to measure and/or furnish the excess requirements and
the entire cost of such additional electricity, water or other energy so
required, which costs will be determined and charged to Tenant (i) by
metering at applicable rates, where meters exist or are installed at
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Landlord's direction, including all service and meter installation and/or
reading charges; and/or (ii) by use and engineering surveys identifying all
costs relating to consumption of such additional electricity, water or
other energy (including, without limitation, survey costs, labor, utility
rates and Landlord's administrative fees to the extent allowed by
applicable Laws). For purposes of this Section 5.2(b), from time to time
during the Term, Landlord may enter the Premises to install, maintain,
replace or read meters for such excess requirements and/or to evaluate
Tenant's consumption of and demand for them.
(c) If Tenant installs any machines, equipment or devices in the
Premises that do not constitute Customary Office Equipment and such
machines, equipment or devices cause the temperature in any part of the
Premises to exceed the temperature the Building's mechanical system would
be able to maintain in the Premises were it not for such machines,
equipment or devices, then Landlord reserves the right to install
supplementary air conditioning units in the Premises, and Tenant will pay
Landlord all costs of installing, operating and maintaining such
supplementary units.
(d) If Tenant requires any janitorial or cleaning services in excess
of the amounts provided by Landlord according to Section 5.1 (such as
cleaning services beyond normal office janitorial services for kitchens,
computer rooms or other special use areas), Landlord will provide such
excess services to Tenant within a reasonable period after Tenant's request
made to Landlord's Building manager ("Property Manager"), provided that
such excess services are available from Landlord's regular janitorial or
cleaning contractor. Tenant will pay the cost of such excess services.
Landlord will also provide, within a reasonable period after Tenant's
request made to the Property Manager, at Tenant's cost and to the extent
available to Landlord, replacement of bulbs, tubes or ballasts in any
non-Building Standard lighting fixtures in the Premises.
(e) Tenant will pay as Rent, within 10 days after the date of
Landlord's invoice, all costs which may become payable by Tenant to
Landlord under this Section 5.2.
5.3 INTERRUPTION OF SERVICES. If any of the services provided for in this
Section 5 are interrupted or stopped, Landlord will use due diligence to resume
the service; provided, however, no irregularity or stoppage of any of these
services will create any liability for Landlord (including, without limitation,
any liability for damages to Tenant's personal property caused by any such
irregularity or stoppage), constitute an actual or constructive eviction or,
except as expressly provided below, cause any abatement of the Rent payable
under this Lease or in any manner or for any purpose relieve Tenant from any of
its obligations under this Lease. If, due to reasons within Landlord's
reasonable control, any of the services required to be provided by Landlord
under this Section 5 should become unavailable and should remain unavailable for
a period in excess of 60 hours after notice of such unavailability from Tenant
to Landlord, and if such unavailability should render all or any portion of the
Premises untenantable, then commencing upon the expiration of such 60-hour
period, Tenant's Rent will equitably xxxxx in proportion to the portion of the
Premises so rendered untenantable for so long as such services remain
unavailable for such reasons.
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Without limiting those reasons for an irregularity or stoppage of services
that may be beyond Landlord's control, any such irregularity or stoppage that
is required in order to comply with any Laws will be deemed caused by a
reason beyond Landlord's control.
6. REPAIRS.
6.1 REPAIRS WITHIN THE PREMISES. Subject to the terms of Sections 4,
5.1(a), 5.1(i), 10 and 12, and except to the extent Landlord is required or
elects to perform or pay for certain maintenance or repairs according to those
sections, Tenant will, at Tenant's own expense: (a) at all times during the
Term, maintain the Premises, all fixtures and equipment in the Premises and
those portions of any mechanical, plumbing or electrical systems that exceed
Building Standard and exclusively service the Premises in good order and repair
and in a condition that complies with all applicable Laws; and (b) promptly and
adequately repair all damage to the Premises and replace or repair all of such
fixtures, equipment and portions of the mechanical, plumbing or electrical
systems that are damaged or broken, all under the supervision and subject to the
prior reasonable approval of Landlord. All work done by Tenant or its
contractors (which contractors will be subject to Landlord's reasonable
approval) will be done in a first-class workmanlike manner using only grades of
materials at least equal in quality to Building Standard materials and will
comply with all insurance requirements and all applicable Laws.
6.2 FAILURE TO MAINTAIN PREMISES. If Tenant fails to perform any of its
obligations under Section 6.1, then Landlord may perform such obligations and
Tenant will pay as Rent to Landlord the cost of such performance, including an
amount sufficient to reimburse Landlord for overhead and supervision, within 10
days after the date of Landlord's invoice. For purposes of performing such
obligations, or to inspect the Premises, Landlord may enter the Premises upon
not less than 24 hours' prior notice to Tenant (except in cases of actual or
suspected emergency, in which case no prior notice will be required) without
liability to Tenant for any loss or damage incurred as a result of such entry,
provided that Landlord will take reasonable steps in connection with such entry
to minimize any disruption to Tenant's business or its use of the Premises.
6.3 NOTICE OF DAMAGE. Tenant will notify Landlord promptly after Tenant
learns of (a) any fire or other casualty in the Premises; (b) any damage to or
defect in the Premises, including the fixtures and equipment in the Premises,
for the repair of which Landlord might be responsible; and (c) any damage to or
defect in any parts or appurtenances of the Building's sanitary, electrical,
heating, air conditioning, elevator or other systems located in or passing
through the Premises.
7. ALTERATIONS.
7.1 ALTERATIONS BY TENANT. Tenant may, from time to time, at its own
expense make changes, additions and improvements to the Premises to better adapt
the same to its business, provided that any such change, addition or improvement
will (a) comply with all applicable Laws; (b) be made only with the prior
written consent of Landlord, which consent will not be unreasonably withheld;
(c) equal or exceed Building Standard; and (d) be carried out only by persons
selected by
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Tenant and approved in writing by Landlord, who will if required by Landlord
deliver to Landlord before commencement of the work performance and payment
bonds. Tenant will maintain, or will cause the persons performing any such
work to maintain, worker's compensation insurance and public liability and
property damage insurance (with Landlord named as an additional insured), in
amounts, with companies and in a form reasonably satisfactory to Landlord,
which insurance will remain in effect during the entire period in which the
work will be carried out. If requested by Landlord, Tenant will deliver to
Landlord proof of all such insurance. Tenant will promptly pay, when due,
the cost of all such work and, upon completion, Tenant will deliver to
Landlord, to the extent not previously received by Landlord, evidence of
payment, contractors' affidavits and full and final waivers of all liens for
labor, services or materials. Tenant will also pay any increase in property
taxes on, or fire or casualty insurance premiums for, the Building
attributable to such change, addition or improvement and the cost of any
modifications to the Building outside the Premises that are required to be
made in order to make the change, addition or improvement to the Premises.
Tenant, at its expense, will have promptly prepared and submitted to Landlord
reproducible as-built plans of any such change, addition or improvement upon
its completion. All changes, additions and improvements to the Premises,
whether temporary or permanent in character, made or paid for by Landlord or
Tenant will, without compensation to Tenant, become Landlord's property upon
installation. If at the time Landlord consents to their installation,
Landlord requests or approves the removal by Tenant of any such changes,
additions or improvements upon termination of this Lease, Tenant will remove
the same upon termination of this Lease as provided in Section 15.1. All
other changes, additions and improvements will remain Landlord's property
upon termination of this Lease and will be relinquished to Landlord in good
condition, ordinary wear and tear excepted.
7.2 ALTERATIONS BY LANDLORD. Landlord may from time to time make repairs,
changes, additions and improvements to the Building, Common Areas and those
Building systems necessary to provide the services described in Section 5, and
for such purposes, Landlord may enter the Premises upon not less than 24 hours'
prior notice to Tenant (except in cases of actual or suspected emergency, in
which case no prior notice will be required) without liability to Tenant for any
loss or damage incurred as a result of such entry, provided that in doing so
Landlord will not disturb or interfere with Tenant's use of the Premises and
operation of its business any more than is reasonably necessary in the
circumstances and will repair any damage to the Premises caused by such entry.
No permanent change, addition or improvement made by Landlord will materially
impair access to the Premises.
8. LIENS. Tenant agrees to pay before delinquency all costs for work,
services or materials furnished to Tenant for the Premises, the nonpayment of
which could result in any lien against the Land or Building. Tenant will keep
title to the Land and Building free and clear of any such lien. Tenant will
immediately notify Landlord of the filing of any such lien or any pending claims
or proceedings relating to any such lien and will indemnify and hold Landlord
harmless from and against all loss, damages and expenses (including reasonable
attorneys' fees) suffered or incurred by Landlord as a result of such lien,
claims and proceedings. In case any such lien attaches, Tenant agrees to cause
it to be immediately released and removed of record (failing which Landlord
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may do so at Tenant's sole expense), unless Tenant has a good faith dispute
as to such lien in which case Tenant may contest such lien by appropriate
proceedings so long as Tenant deposits with Landlord a bond or other security
in an amount reasonably acceptable to Landlord which may be used by Landlord
to release such lien if Tenant's contest is abandoned or is unsuccessful.
Upon final determination of any permitted contest, Tenant will immediately
pay any judgment rendered and cause the lien to be released.
9. INSURANCE.
9.1 LANDLORD'S INSURANCE. During the Term, Landlord will provide and keep
in force the following insurance:
(a) comprehensive or commercial general liability insurance relating
to Landlord's operation of the Building, including coverage for personal
and bodily injury and death, and damage to others' property;
(b) "all risk" property insurance relating to the Building (but
excluding Tenant's fixtures, furnishings, equipment, personal property,
documents, files and work products and all leasehold improvements in the
Premises that were paid for by Tenant; for purposes of this Section 9.1(b)
and Section 9.2(b) below, any leasehold improvements paid for with an
allowance provided by Landlord, regardless of whether a portion of the Base
Rent is intended to reimburse Landlord for such allowance, will be deemed
paid for by Landlord);
(c) loss of rental income insurance or loss of insurable gross
profits commonly insured against by prudent landlords; and
(d) such other insurance (including boiler and machinery insurance)
as Landlord reasonably elects to obtain or any Building mortgagee requires.
Insurance effected by Landlord under this Section 9.1 will be in amounts which
Landlord from time to time reasonably determines sufficient or any Building
mortgagee requires; will be subject to such deductibles and exclusions as
Landlord reasonably determines; and will otherwise be on such terms and
conditions as Landlord from time to time reasonably determines sufficient.
9.2 TENANT'S INSURANCE. During the Term, Tenant will provide and keep in
force the following insurance:
(a) comprehensive or commercial general liability insurance relating
to Tenant's business (carried on, in or from the Premises) and Tenant's use
and occupancy, for personal and bodily injury and death, and damage to
others' property, with limits of not less than the Liability Insurance
Amount for any one accident or occurrence;
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(b) "all risk" property insurance (including standard extended
endorsement perils, leakage from fire protective devices and other water
damage) relating to Tenant's fixtures, furnishings, equipment, inventory,
stock-in-trade and all leasehold improvements in the Premises that were
paid for by Tenant on a full replacement cost basis in amounts sufficient
to prevent Tenant from becoming a coinsurer and subject only to such
deductibles and exclusions as Landlord may reasonably approve; and
(c) if any boiler or machinery is operated in the Premises, boiler
and machinery insurance.
Landlord will be named as an additional insured in the policy described in
Section 9.2(a), which will include cross liability and severability of
interests clauses and will be on an "occurrence" (and not a "claims made")
form. Landlord will be named as a loss payee, as its interest may appear, in
the policies described in Sections 9.2(b) and (c),, and such policies will
permit the release of Landlord from certain liability under Section 11.1.
Tenant's insurance policies will otherwise be upon such terms and conditions
as Landlord from time to time reasonably requires. Tenant will provide
Landlord, on or before the Commencement Date and at least ten (10) days
before the expiration date of expiring policies, with such copies of either
current policies or certificates, or other proofs, as may be reasonably
required to establish Tenant's insurance coverage in effect, and each
certificate shall provide that Landlord shall receive ten (10) days' prior
written notice for cancellation for non-payment of premium and thirty (30)
days' prior written notice for cancellation for non-renewal. If Tenant fails
to insure or pay premiums, or to file satisfactory proof as required,
Landlord may, upon a minimum of two (2) business days' notice, effect such
insurance and recover from Tenant on demand any premiums paid.
10. DAMAGE OR DESTRUCTION.
10.1 TERMINATION OPTIONS. If the Premises or the Building are damaged by
fire or other casualty Landlord will, promptly after learning of such damage,
notify Tenant in writing of the time necessary to repair or restore such damage,
as estimated by Landlord's architect, engineer or contractor. If such estimate
states that repair or restoration of all of such damage that was caused to the
Premises or to any other portion of the Building necessary for Tenant's
occupancy cannot be completed within 180 days from the date of such damage (or
within 30 days from the date of such damage if such damage occurred within the
last 12 months of the Term), then Tenant will have the option to terminate this
Lease. If such estimate states that repair or restoration of all of such damage
that was caused to the Building cannot be completed within 180 days from the
date of such damage, or if such damage occurred within the last 12 months of the
Term), then Tenant will have the option to terminate this Lease. If such
estimate states that repair or restoration of all of such damage that was caused
to the Building cannot be completed within 30 days from the date of such damage,
or if such damage occurred within the last 12 months of the Term and such
estimate states that repair or restoration of all such damage that was caused to
the Premises or to any other portion of the Building necessary for Tenant's
occupancy cannot be completed within 30 days from the date of such damage, or if
such damage is not insured against by the insurance policies required to be
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maintained by Landlord according to Section 9.1, then Landlord will have the
option to terminate this Lease. Any option to terminate granted above must be
exercised by written notice to the other party given within 10 days after
Landlord delivers to Tenant the notice of estimated repair time. If either
party exercises its option to terminate this Lease, the Term will expire and
this Lease will terminate 10 days after notice of termination is delivered;
provided, however, that Rent for the period commencing on the date of such
damage until the date this Lease terminates will be reduced to the reasonable
value of any use or occupation of the Premises by Tenant during such period and
Landlord will be entitled to all proceeds of the insurance policy described in
Section 9.2(b) applicable to any damaged leasehold improvements in the Premises.
10.2 REPAIR OBLIGATIONS. If the Premises or the Building are damaged by
fire or other casualty and neither party terminates this Lease according to
Section 10.1, then Landlord will repair and restore such damage with reasonable
promptness, subject to delays for insurance adjustments and delays caused by
matters beyond Landlord's control. Landlord will have no liability to Tenant
and Tenant will not be entitled to terminate this Lease if such repairs and
restoration are not in fact completed within the estimated time period, provided
that Landlord promptly commences and diligently pursues such repairs and
restoration to completion. In no event will Landlord be obligated to repair,
restore or replace any of the property required to be insured by Tenant
according to Section 9.2. Tenant agrees to repair, restore or replace, at its
expense, all leasehold improvements required to be insured by Tenant according
to Section 9.2(b) as soon as possible after the date of damage, to at least the
condition existing prior to their damage, using materials at least equal to
Building Standard. However, in connection with its repair and restoration of
such damage, Landlord may, at its option, elect to repair and restore the
damage, if any, caused to any or all of such leasehold improvements required to
be insured by Tenant. If Landlord makes such election, Landlord will be
entitled to all proceeds of the insurance policy described in Section 9.2(b)
applicable to the leasehold improvements Landlord so elects to repair or restore
and may limit its repair or restoration of such leasehold improvements to that
which may be paid for in full by such proceeds.
10.3 RENT ABATEMENT. If any fire or casualty damage renders the Premises
untenantable and if this Lease is not terminated according to Section 10.1, then
Rent will xxxxx beginning on the date of such damage. Such abatement will end
on the date Landlord has substantially completed the repairs and restoration
Landlord is required to perform according to Section 10.2 and Tenant has had a
reasonable period of time to substantially complete any repairs and restoration
Tenant is required to perform according to Section 10.2. Such abatement will be
in an amount bearing the same ratio to the total amount of Rent for such period
as the untenantable portion of the Premises bears to the entire Premises. In no
event will Landlord be liable for any inconvenience or annoyance to Tenant or
injury to the business of Tenant resulting in any way from damage caused by fire
or other casualty or the repair of such damage, provided however that, to the
extent Tenant remains in possession of a portion of the Premises, Landlord will
take all reasonable steps to minimize the disruption to Tenant's business and
use of such portion of the Premises during the period of repair.
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11. WAIVERS AND INDEMNITIES.
11.1 TENANT'S WAIVERS. Except to the extent caused by the willful or
negligent act or omission or breach of this Lease by Landlord or anyone for whom
Landlord is legally responsible, Landlord and its Affiliates will not be liable
or in any way responsible for, and Tenant waives all claims against Landlord and
its Affiliates for, any loss, injury or damage suffered by Tenant or others
relating to (a) loss or theft of, or damage to, property of Tenant or others;
(b) injury or damage to persons or property resulting from fire, explosion,
falling plaster, escaping steam or gas, electricity, water, rain or snow, or
leaks from any part of the Building or from any pipes, appliances or plumbing,
or from dampness; or (c) damage caused by other tenants, occupants or persons in
the Premises or other premises in the Building, or caused by the public or by
construction of any private or public work. Landlord and its Affiliates will
not be liable or in any way responsible to Tenant for, and Tenant waives all
claims against Landlord and its Affiliates for, any loss, injury or damage that
is insured or required to be insured by Tenant under Sections 9.2(b) or (c), so
long as such loss, injury or damage results from or in connection with this
Lease or Landlord's operation of the Building.
11.2 LANDLORD'S INDEMNITY. Subject to Sections 5.3 and 11.1 and except to
the extent caused by the willful or negligent act or omission or breach of this
Lease by Tenant or anyone for whom Tenant is legally responsible, Landlord will
indemnify and hold Tenant harmless from and against any and all liability, loss,
claims, demands, damages or expenses (including reasonable attorneys' fees) due
to or arising out of any willful or negligent act or omission or breach of this
Lease by Landlord or anyone for whom Landlord is legally responsible.
Landlord's obligations under this Section 11.2 will survive the expiration or
early termination of the Term.
11.3 TENANT'S INDEMNITY. Except to the extent caused by the willful or
negligent act or omission or breach of this Lease by Landlord or anyone for whom
Landlord is legally responsible, Tenant will indemnify and hold Landlord
harmless from and against any and all liability, loss, claims, demands, damages
or expenses (including reasonable attorneys' fees) due to or arising out of any
accident or occurrence on or about the Premises (including, without limitation,
accidents or occurrences resulting in injury, death, property damage or theft)
or any willful or negligent act or omission of or breach of this Lease by Tenant
or anyone for whom Tenant is legally responsible. Tenant's obligations under
this Section 11.3 will survive the expiration or early termination of the Term.
12. CONDEMNATION.
12.1 FULL TAKING. If all or substantially all of the Building or Premises
are taken for any public or quasi-public use under any applicable Laws or by
right of eminent domain, or are sold to the condemning authority in lieu of
condemnation, then this Lease will terminate as of the date when the condemning
authority takes physical possession of the Building or Premises.
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12.2 PARTIAL TAKING.
(a) LANDLORD'S TERMINATION OF LEASE. If only part of the Building or
Premises is thus taken or sold, and if after such partial taking, in
Landlord's reasonable judgment, alteration or reconstruction is not
economically justified, then Landlord (whether or not the Premises are
affected) may terminate this Lease by giving written notice to Tenant
within sixty (60) days after the taking.
(b) TENANT'S TERMINATION OF LEASE. If over 20% of the Premises is
thus taken or sold and Landlord is unable to provide Tenant with comparable
replacement premises in the Building, Tenant may terminate this Lease if in
Tenant's reasonable judgment the Premises cannot be operated by Tenant in
an economically viable fashion because of such partial taking. Such
termination by Tenant must be exercised by written notice to Landlord given
not later than sixty (60) days after Tenant is notified of the taking of
the Premises.
(c) EFFECTIVE DATE OF TERMINATION. Termination by Landlord or Tenant
will be effective as of the date when physical possession of the applicable
portion of the Building or Premises is taken by the condemning authority.
(d) ELECTION TO CONTINUE LEASE. If neither Landlord nor Tenant
elects to terminate this Lease upon a partial taking of a portion of the
Premises, the Rent payable under this Lease will be diminished by an amount
allocable to the portion of the Premises which was so taken or sold. If
this Lease is not terminated upon a partial taking of the Building or
Premises, Landlord will, at Landlord's sole expense, promptly restore and
reconstruct the Building and Premises to substantially their former
condition to the extent the same is feasible. However, Landlord will not
be required to spend for such restoration or reconstruction an amount in
excess of the net amount received by Landlord as compensation or damages
for the part of the Building or Premises so taken.
12.3 AWARDS. As between the parties to this Lease, Landlord will be
entitled to receive, and Tenant assigns to Landlord, all of the compensation
awarded upon taking of any part or all of the Building or Premises, including
any award for the value of the unexpired Term. However, Tenant may assert a
claim in a separate proceeding against the condemning authority for any damages
resulting from the taking of Tenant's trade fixtures or personal property, or
for moving expenses, business relocation expenses or damages to Tenant's
business incurred as a result of such condemnation.
13. ASSIGNMENT AND SUBLETTING.
13.1 LIMITATION. Without Landlord's prior written consent, Tenant will not
assign all or any of its interest under this Lease, sublet all or any part of
the Premises or permit the Premises to be used by any parties other than Tenant
and its employees.
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13.2 NOTICE OF PROPOSED TRANSFER; LANDLORD'S OPTIONS. If Tenant desires to
enter into any assignment of this Lease or a sublease of all or any part of the
Premises, Tenant will first give Landlord written notice of the proposed
assignment or sublease, which notice will contain the name and address of the
proposed transferee, the proposed use of the Premises, statements reflecting the
proposed transferee's current financial condition and income and expenses for
the past two (2) years, and the principal terms of the proposed assignment or
sublease. Landlord will have the following options, which must be exercised, if
at all, by notice given to Tenant within ten (10) business days after Landlord's
receipt of Tenant's notice of the proposed transfer:
(a) if Tenant's notice relates to a subletting, to sublet from Tenant
such space as is described in the notice for such portion of the Term as is
described in the notice, upon the same terms and conditions and for the
same Rent (apportioned, as appropriate, to the amount of such space) as
provided in this Lease;
(b) if Tenant's notice relates to an assignment, to become Tenant's
assignee; or
(c) if Tenant's notice relates to either an assignment or subletting,
to cancel and terminate the Lease. If Landlord exercises its option to
terminate this Lease, this Lease shall cancel and terminate on the last day
of the month following said 10-day period and Tenant shall be released from
any further liability under this Lease.
Except in the event of termination of this Lease by Landlord as provided in this
Section 13.2, no provision of this Section shall be construed to relieve Tenant
of the obligations as set forth in this Lease.
13.3 CONSENT NOT TO BE UNREASONABLY WITHHELD. If Landlord does not
exercise any of its applicable options under Section 13.2, the Landlord will not
unreasonably withhold or delay its consent to the proposed assignment or
subletting.
13.4 FORM OF TRANSFER. If Landlord consents to a proposed assignment or
sublease Landlord's consent will not be effective unless and until Tenant
delivers to Landlord an original duly executed assignment or sublease, as the
case may be, that provides, in the case of a sublease, that the sublease is
subject and subordinate to this Lease and the subtenant will comply with all
applicable terms and conditions of this Lease and, in the case of an assignment,
an assumption by the assignee of all of the obligations which this Lease
requires Tenant to perform and acknowledgment by Tenant that it remains liable
for the performance of all of such obligations.
13.5 PAYMENTS TO LANDLORD. If Landlord does not exercise its applicable
option under Section 13.2 and Tenant effects an assignment or sublease, then
Landlord will be entitled to receive and collect, either from Tenant or directly
from the transferee, 100% of the amount by which the consideration required to
be paid by the transferee for the use and enjoyment of the Tenant's rights under
this Lease (after deducting from such consideration Tenant's reasonable costs
incurred in effecting the assignment or sublease) exceeds the Rent payable by
Tenant to Landlord allocable to
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the transferred space. Such percentage of such amount will be payable to
Landlord at the time(s) Tenant receives the same from its transferee (whether
in monthly installments, in a lump sum, or otherwise).
13.6 CHANGE OF OWNERSHIP. Any change by Tenant in the form of its legal
organization (such as, for example, a change from a general to a limited
partnership), any transfer of 51% or more of Tenant's assets, and any other
transfer of interest effecting a change in identity of persons exercising
effective control of Tenant will be deemed an "assignment" of this Lease
requiring Landlord's prior written consent. The transfer of any outstanding
capital stock of a corporation whose stock is publicly-traded will not, however,
be deemed a "transfer of interest" under this Section 13.6.
13.7 EFFECT OF TRANSFERS. Unless Landlord agrees to the contrary in
writing, no subletting or assignment will release Tenant from any of its
obligations under this Lease and such obligations of Tenant will continue in
full force and effect as if no subletting or assignment had been made,
regardless of any action taken by or on behalf of a subtenant or assignee, or
limitations imposed on remedies against a subtenant or assignee, in any
bankruptcy, insolvency, receivership, reorganization or dissolution proceeding
instituted by or against such subtenant or assignee. Acceptance of Rent by
Landlord from any person other than Tenant will not be deemed a waiver by
Landlord of any provision of this Section 13. Consent to one assignment or
subletting will not be deemed a consent to any subsequent assignment or
subletting. In the event of any default by any assignee or subtenant or any
successor of Tenant in the performance of any Lease obligation, Landlord may
proceed directly against Tenant without exhausting remedies against such
assignee, subtenant or successor. The voluntary or other surrender of this
Lease by Tenant or the cancellation of this Lease by mutual agreement of Tenant
and Landlord will not work a merger and will, at Landlord's option, terminate
all or any subleases or operate as an assignment to the Landlord of all or any
subleases; such option will be exercised by notice to Tenant and all known
subtenants in the Premises.
14. PERSONAL PROPERTY
14.1 INSTALLATION AND REMOVAL. Tenant may install in the Premises its
personal property (including Tenant's usual trade fixtures) in a proper manner,
provided that no such installation will interfere with or damage the mechanical,
plumbing or electrical systems or the structure of the Building, and provided
further, that if such installation would require any change, addition or
improvement to the Premises, such installation will be subject to Section 7.1.
If no Default then exists, any such personal property installed in the Premises
by Tenant (a) may be removed from the Premises from time to time in the ordinary
course of Tenant's business or in the course of making any changes, additions or
improvements to the Premises permitted under Section 7.1, and (b) will be
removed by Tenant at the end of the Term according to Section 15.1. Tenant will
promptly repair at its expense any damage to the Building resulting from such
installation or removal.
14.2 RESPONSIBILITY. Tenant will be solely responsible for all costs and
expenses related to personal property used or stored in the Premises. Tenant
will pay any taxes or other governmental
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impositions levied upon or assessed against such personal property, or upon
Tenant for the ownership or use of such personal property, on or before the
due date for payment. Such personal property taxes or impositions are not
included in Taxes.
14.3 LANDLORD'S LIEN. In addition to any statutory Landlord's lien and in
order to secure payment of all Rent becoming due from Tenant, and to secure
payment of any damages or loss which Landlord may suffer by reason of Tenant's
failure to perform any of its obligations under this Lease, Tenant grants to
Landlord a security interest in and an express contractual lien upon all goods,
wares, equipment, fixtures, furniture, improvements and other personal property
of Tenant now or later situated on the Premises and all proceeds thereof.
Tenant's personal property may not be removed from the Premises without
Landlord's consent at any time a default exists or, except as provided in
Section 14.1, until all of Tenant's obligations under this Lease have been fully
complied with and performed. Upon the occurrence of a Default, in addition to
any other available remedies, Landlord will have all the rights of a secured
party under the Colorado Uniform Commercial Code with respect to the property
covered by such security interest. Upon Landlord's request, Tenant agrees to
execute and deliver to Landlord such financing statements as may be required to
perfect such security interest.
15. END OF TERM.
15.1 SURRENDER. Upon the expiration or other termination of the Term,
Tenant will immediately vacate and surrender possession of the Premises in good
order, repair and condition, except for ordinary wear and tear. Upon the
expiration or other termination of the Term, Tenant agrees to remove (a) all
changes, additions and improvements to the Premises the removal of which
Landlord requested or approved according to Section 7.1 at the time Landlord
consented to their installation, and (b) all of Tenant's trade fixtures, office
furniture, office equipment and other personal property. Tenant will pay
Landlord on demand the cost of repairing any damage to the Premises or Building
caused by the installation or removal of any such items. Any of Tenant's
property remaining in the Premises will be conclusively deemed to have been
abandoned by Tenant and may be appropriated, stored, sold, destroyed or
otherwise disposed of by Landlord without notice or obligation to account to or
compensate Tenant, and Tenant will pay Landlord on demand all costs incurred by
Landlord relating to such abandoned property. Tenant's obligations under this
Section 15.1 will survive the expiration of early termination of this Lease.
15.2 HOLDING OVER. Tenant understands that it does not have the right to
hold over at any time and Landlord may exercise any and all remedies at law or
in equity to recover possession of the Premises, as well as any damages incurred
by Landlord, due to Tenant's failure to vacate the Premises and deliver
possession to Landlord as required by this Lease. If Tenant holds over after
the Expiration Date with Landlord's prior written consent, Tenant will be deemed
to be a Tenant from month-to-month, at a monthly Base Rent, payable in advance,
equal to 150% of monthly Base Rent payable during the last year of the Term, and
Tenant will be bound by all of the other terms, covenants and agreements of this
Lease as the same may apply to a month-to-month tenancy. If Tenant holds over
after the Expiration Date without Landlord's prior written consent, Tenant will
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be deemed a Tenant at sufferance, at a daily Base Rent, payable in advance,
equal to 200% of the Base Rent per day payable during the last year of the Term,
and Tenant will be bound by all of the other terms, covenants and agreements of
this Lease as the same may apply to a tenancy at sufferance.
16. ESTOPPEL CERTIFICATES. Promptly upon Landlord's request after Tenant has
occupied the Premises, Tenant will execute and deliver to Landlord an Occupancy
Estoppel Certificate in the form of EXHIBIT C. In addition, Tenant agrees that
at any time and from time to time (but on not less than ten (10) days' prior
request by Landlord), Tenant will execute, acknowledge and deliver to Landlord a
certificate indicating any or all of the following: (a) the Commencement Date
and Expiration Date; (b) that this Lease is unmodified and in full force and
effect (or, if there have been modifications, that this Lease is in full force
and effect, as modified, and stating the date and nature of each modification);
(c) the date, if any, through which Base Rent, Additional Rent and any other
Rent payable have been paid; (d) that no default by Landlord or Tenant exists
which has not been cured, except as to defaults stated in such certificate; (e)
that Tenant has no existing defenses or set-offs to enforcement of this Lease,
except as specifically stated in such certificate; (f) provided such events have
occurred, that tenants has accepted the Premises and that all improvements
required to be made to the Premises by Landlord have been completed according to
this Lease; (g) that, except as specifically stated in such certificate, Tenant,
and only Tenant, currently occupies the Premises; and (h) such other matters as
may be reasonably requested by Landlord. Any such certificate may be relied
upon by Landlord and any prospective purchaser or present or prospective
mortgagee, deed of trust beneficiary or ground lessor of all or a portion of the
Building.
17. TRANSFERS OF LANDLORD'S INTEREST
17.1 SALE, CONVEYANCE AND ASSIGNMENT. Subject only to Tenant's rights
under this Lease, nothing in this Lease will restrict Landlord's right to sell,
convey, assign or otherwise deal with the Land, Building or Landlord's interest
under this Lease.
17.2 EFFECT OF SALE, CONVEYANCE OR ASSIGNMENT. A sale, conveyance or
assignment of the Building will automatically release Landlord from liability
under this Lease from and after the effective date of the transfer, except for
any liability relating to the period prior to such effective date; and Tenant
will look solely to Landlord's transferee for performance of Landlord's
obligations relating to the period after such effective date. This Lease will
not be affected by any such sale, conveyance or assignment and Tenant will
attorn to Landlord's transferee.
17.3 SUBORDINATION AND NONDISTURBANCE. This Lease is and will be subject
and subordinate in all respects to any ground Lease, first mortgage or first
deed of trust now or later encumbering the Building or Land, and to all their
renewals, modifications, supplements, consolidations and replacements (an
"Encumbrance"). With respect to any Encumbrance first encumbering the Building
or Land subsequent to the Date of this Lease, Landlord will use its good faith
efforts to cause the holder of such Encumbrance to agree (either in the
Encumbrance or in a
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separate agreement with Tenant) that so long as Tenant is not in default of
its obligations under this Lease, this Lease will not be terminated and
Tenant's possession of the Premises will not be disturbed by the termination
or foreclosure, or proceedings for enforcement, of such Encumbrance. While
such subordination will occur automatically, Tenant agrees, upon request by
and without cost to Landlord or any successor in interest, to promptly
execute and deliver to Landlord or the holder of an Encumbrance such
instrument(s) as may be reasonably required to evidence such subordination.
In the alternative, however, the holder of an Encumbrance may unilaterally
elect to subordinate such Encumbrance to this Lease.
17.4 ATTORNMENT. If the interest of Landlord is transferred to any person
(a "Transferee") by reason of the termination or foreclosure, or proceeding for
enforcement, of any Encumbrance, or by delivery of a deed in lieu of such
foreclosure or proceedings, Tenant will immediately and automatically attorn to
the Transferee. Upon attornment this Lease will continue in full force and
effect as a direct Lease between the Transferee and Tenant, upon all of the same
terms, conditions and covenants as stated in this Lease, except the Transferee
will not be subject to any set-offs or claims which Tenant might have against
any prior Landlord and will not be liable for any act or omission of any prior
Landlord. Tenant agrees, upon request by and without cost to the Transferee, to
promptly execute and deliver to the Transferee such instrument(s) as may be
reasonably required to evidence such attornment.
18. RULES AND REGULATIONS. Tenant agrees to observe and comply with the Rules
and Regulations set forth on EXHIBIT D and with all reasonable modifications and
additions to such Rules and Regulations (which will be applicable to all
Building tenants) from time to time adopted by Landlord and of which Tenant is
notified in writing. No such modification or addition will contradict or
abrogate any right expressly granted to Tenant under this Lease. Landlord's
enforcement of the Rules and Regulations will be uniform and nondiscriminatory,
but Landlord will not be responsible to Tenant for the failure of any person to
comply with the Rules and Regulations.
19. PARKING. Tenant may elect to Lease up to ___________ assigned parking
spaces and/or unassigned parking spaces in the parking garage at the Building
for the parking of vehicles. Tenant will notify Landlord at least thirty (30)
days prior to the Commencement Date of how many of such assigned and/or
unassigned spaces Tenant elects to Lease, and Landlord will make that number of
assigned and/or unassigned spaces available for Lease by Tenant within thirty
(30) days after the Commencement Date. Tenant will pay monthly parking rent for
each space Tenant so elects to Lease at the monthly rate established by Landlord
from time to time for the use of that type of parking space by tenants of the
Building. Landlord will give Tenant at least thirty (30) days notice before
increasing the parking rates. All monthly parking rent will be payable in
advance on the first day of each month during the Term to the same place as Base
Rent (or to such other place as Landlord may direct in writing) and will be
considered Rent under this Lease. Tenant may relinquish any parking space it
previously elected to Lease as of the last day of any calender month by notice
to Landlord given at least thirty (30) days prior to such last day. Any parking
space so relinquished and any of the total available spaces described above that
Tenant does not elect to Lease at least thirty (30) days prior to the
Commencement Date will be forfeited for the remainder of the
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Term and Landlord will have no obligation to subsequently make any of such
spaces available for Lease to Tenant. Tenant's rights to use the Building's
parking garage are nonexclusive (except Landlord will not grant any other
party the right to use Tenant's assigned spaces), will be deemed a license
only and are conditioned upon this Lease being in full force and effect and
there being no Default. Tenant will not abuse its privileges with respect to
such parking garage and will use the same in accordance with Landlord's
reasonable directions. Landlord's inability to make any of the parking spaces
leased by Tenant available at any dime during the Term for reasons beyond the
Landlord's reasonable control will not be deemed a default by Landlord giving
rise to any claim by Tenant, except that tenant will be entitled to an
abatement of monthly parking rent for any such spaces during the period of
unavailability and such abatement will be in full settlement of any claims
that Tenant might otherwise have had for such unavailability. If at any time
during the Term Tenant fails to make timely payment of any monthly parking
rent due, in addition to any other remedies available to Landlord under
Section 20.2, Landlord may terminate Tenant's license under this Section 19
and Tenant will then have no further right to use any parking spaces in the
Building's parking garage.
20. TENANT'S DEFAULT AND LANDLORD'S REMEDIES.
20.1 DEFAULT. Each of the following events will constitute a material
breach by Tenant and a "Default" under this Lease:
(a) FAILURE TO PAY RENT. Tenant fails to pay Base Rent, Additional
Rent or any Rent payable by Tenant under the terms of this Lease when due,
and such failure continues for five (5) days after written notice from
Landlord to Tenant of such failure; provided that with respect to Base Rent
and Additional Rent, Tenant will be entitled to only three (3) notices of
such failure during any twelve (12) month period and if, after three (3)
such notices are given in any twelve (12) month period, Tenant fails,
during such twelve (12) month period, to pay any such amounts when due,
such failure will constitute a Default without further notice by Landlord
or additional cure period.
(b) FAILURE TO PERFORM OTHER OBLIGATIONS. Tenant breaches or fails
to comply with any other provision of this Lease applicable to Tenant, and
such breach or noncompliance continues for a period of twenty (20) days
after notice by Landlord to Tenant; or, if such breach or noncompliance
cannot be reasonably cured within such twenty (20) day period, Tenant does
not in good faith commence to cure such breach or noncompliance within such
twenty (20) day period or does not diligently complete such cure within
sixty (60) days after such notice from Landlord. However, if such breach
or noncompliance causes or results in (i) a dangerous condition on the
Premises or Building, (ii) any insurance coverage carried by Landlord or
Tenant with respect to the Premises or Building being jeopardized, or (iii)
a material disturbance to another Tenant, then a Default will exist if such
breach or noncompliance is not cured as soon as reasonably possible after
notice by Landlord to Tenant, and in any event is not cured within thirty
(30) days after such notice. For purposes of this Section 20.1(b),
financial inability will not be deemed a reasonable ground
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for failure to immediately cure any breach of, or failure to comply with,
the provisions of this Lease.
(c) NONOCCUPANCY OF PREMISES. Tenant fails to occupy and use the
Premises within fifteen (15) days after the Commencement Date or leaves
substantially all of the Premises unoccupied for fifteen (15) consecutive
days or vacates and abandons substantially all of the Premises.
(d) TRANSFER OF INTEREST WITHOUT CONSENT. Tenant's interest under
this Lease or in the Premises is transferred or passes to, or devolves
upon, any other party in violation of Section 13.
(e) EXECUTION AND ATTACHMENT AGAINST TENANT. Tenant's interest under
this Lease or in the Premises is taken upon execution or by other process
of law directed against Tenant, or is subject to any attachment by any
creditor or claimant against Tenant and such attachment is not discharged
or disposed of within fifteen (15) days after levy.
(f) BANKRUPTCY OR RELATED PROCEEDINGS. Tenant files a petition in
bankruptcy or insolvency, or for reorganization or arrangement under any
bankruptcy or insolvency Laws, or voluntarily takes advantage of any such
Laws by answer or otherwise, or dissolves or makes an assignment for the
benefit of creditors, or involuntary proceedings under any such Laws or for
the dissolution of Tenant are instituted against Tenant, or a receiver or
trustee is appointed for the Premises or for all or substantially all of
Tenant's property, and such proceedings are not dismissed or such
receivership or trusteeship vacated within sixty (60) days after such
institution or appointment.
20.2 REMEDIES. Time is of the essence. If any Default occurs, Landlord
will have the right, at Landlord's election then or at any later time, to
exercise any one or more of the remedies described below. Exercise of any of
such remedies will not prevent the concurrent or subsequent exercise of any
other remedy provided for in this Lease or otherwise available to Landlord at
law or in equity.
(a) CURE BY LANDLORD. Landlord may, at Landlord's option but without
obligation to do so, and without releasing Tenant from any obligations
under this Lease, make any payment or take any action as Landlord deems
necessary or desirable to cure any Default in such manner and to such
extent as Landlord deems necessary or desirable. Landlord may do so
without additional demand on, or additional written notice to, Tenant and
without giving Tenant an additional opportunity to cure such Default.
Tenant covenants and agrees to pay Landlord, upon demand, all advances,
costs and expenses of Landlord in connection with making any such payment
or taking any such action, including reasonable attorneys' fees, together
with interest at the rate described in Section 3.5, from the date of any
such advances, costs and expenses by Landlord.
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(b) TERMINATION OF LEASE AND DAMAGES. Landlord may terminate this
Lease, effective at such time as may be specified by written notice to
Tenant, and demand (and, if such demand is refused, recover) possession of
the Premises from Tenant. Tenant will remain liable to Landlord for
damages in an amount equal to the Base Rent, Additional Rent and other Rent
which would have been owing by Tenant for the balance of the Term had this
Lease not been terminated, less the net proceeds, if any, of any reletting
of the Premises by Landlord subsequent to such termination, after deducting
all Landlord's expenses in connection with such recovery of possession or
reletting. Landlord will be entitled to collect and receive such damages
from Tenant on the days on which the Base Rent, Additional Rent, and other
Rent could have been payable if this Lease had not been terminated.
Alternatively, at Landlord's option, Landlord will be entitled to recover
from Tenant, as damages for loss of the bargain and not as a penalty, an
aggregate sum equal to (i) all unpaid Base Rent, Additional Rent and other
Rent for any period prior to the termination date of this Lease (including
interest from the due date to the date of the award at the rate described
in Section 3.5), plus any other sum of money and damages owed by Tenant to
Landlord for events or actions occurring prior to the termination date;
plus (ii) the present value at the time of termination (calculated at the
rate commonly called the discount rate in effect at the Federal Reserve
Bank of New York on the termination date) of the amount, if any, by which
(A) the aggregate of the Base Rent, Additional Rent and all other Rent
payable by Tenant under this Lease that would have accrued for the balance
of the Term after termination (with respect to Additional Rent, such
aggregate will be calculated by assuming that Expenses and Taxes for the
calendar year in which termination occurs and for each subsequent calendar
year remaining in the Term if this Lease had not been terminated will
increase by 8% per year over the amount of Expenses and Taxes for the prior
calendar year), exceeds (B) the amount of such Base Rent, Additional Rent
and other Rent which Landlord will receive for the remainder of the Term
from any reletting of the Premises occurring prior to the date of the
award, or if the Premises have not been relet prior to the date of the
award, the amount, if any, of such Base Rent, Additional Rent and other
Rent which could reasonably be recovered by reletting the Premises for the
remainder of the Term of the then-current fair rental value, in either case
taking into consideration loss of Rent while finding a new Tenant, Tenant
improvements and Rent abatements necessary to secure a new Tenant, leasing
brokers' commissions and other costs which Landlord has incurred or might
incur in leasing the Premises to a new Tenant; plus (iii) interest on the
amount described in (ii) above from the termination date to the date of the
award at the rate described in Section 3.5.
(c) REPOSSESSION AND RELETTING. Landlord may reenter and take
possession of all or any part of the Premises, without additional demand or
notice, and repossess the same and expel Tenant and any party claiming by,
through or under Tenant, and remove the effects of both using such force
for such purposes as may be necessary, without being liable for prosecution
for such action or being deemed guilty of any manner of trespass, and
without prejudice to any remedies for arrears of Rent or right to bring any
proceeding for breach of covenants or conditions. No such reentry or
taking possession of the Premises by Landlord will be construed as an
election by Landlord to terminate this Lease unless a written notice
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of such intention is given to Tenant. No notice from Landlord or notice
given under a forcible entry and detainer statute or similar Laws will
constitute an election by Landlord to terminate this Lease unless such
notice specifically so states. Landlord reserves the right, following
any reentry or reletting, to exercise its right to terminate this Lease
by giving Tenant such written notice, in which event the Lease will
terminate as specified in such notice. After recovering possession of
the Premises, Landlord shall use reasonable efforts to relet all or any
part of the Premises for Tenant's account, for such term or terms and on
such conditions and other terms as Landlord, in its discretion, determines.
Landlord may make such repairs, alterations or improvements as Landlord
considers appropriate to accomplish such reletting, and Tenant will
reimburse Landlord upon demand for all costs and expenses, including
attorneys' fees, which Landlord may incur in connection with such
reletting. Landlord may collect and receive the rents for such reletting
but Landlord will in no way be responsible or liable for any failure to
relet the Premises or for any inability to collect any rent due upon such
reletting. Regardless of Landlord's recovery of possession of the
Premises, Tenant will continue to pay on the dates specified in this Lease,
the Base Rent, Additional Rent and other Rent which would be payable if
such repossession had not occurred, less a credit for the net amounts, if
any, actually received by Landlord through any reletting of the Premises.
Alternatively, at Landlord's option, Landlord will be entitled to recover
from Tenant, as damages for loss of the bargain and not as a penalty, an
aggregate sum equal to (i) all unpaid Base Rent, Additional Rent and other
Rent for any period prior to the repossession date (including interest from
the due date to the date of the award at the rate described in
Section 3.5), plus any other sum of money and damages owed by Tenant to
Landlord for events or actions occurring prior to the repossession date;
plus (ii) the present value at the time of repossession (calculated at the
rate commonly called the discount rate in effect at the Federal Reserve
Bank of New York on the repossession date) of the amount, if any, by which
(A) the aggregate of the Base Rent, Additional Rent and all other Rent
payable by Tenant under this Lease that would have accrued for the balance
of the Term after repossession (with respect to Additional Rent, such
aggregate will be calculated by assuming that Expenses and Taxes for the
calendar year in which repossession occurs and for each subsequent calendar
year remaining in the Term if Landlord had not repossessed the Premises
will increase by 8% per year over the amount of Expenses and Taxes for the
prior calendar year), exceeds (B) the amount of such Base Rent, Additional
Rent and other Rent which Landlord will receive for the remainder of the
Term from any reletting of the Premises occurring prior to the date of the
award, or if the Premises have not been relet prior to the date of the
award, the amount, if any, of such Base Rent, Additional Rent and other
Rent which could reasonably be recovered by reletting the Premises for the
remainder of the Term at the then-current fair rental value, in either case
taking into consideration loss of rent while finding a new tenant, tenant
improvements and rent abatements necessary to secure a new tenant, leasing
brokers' commissions and other costs which Landlord has incurred or might
incur in leasing the Premises to a new tenant; plus (iii) interest on the
amount described in (ii) above from the repossession date to the date of
the award at the rate described in Section 3.5.
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(d) BANKRUPTCY RELIEF. Nothing contained in this Lease will limit or
prejudice Landlord's right to prove and obtain as liquidated damages in any
bankruptcy, insolvency, receivership, reorganization or dissolution
proceeding, an amount equal to the maximum allowable by any Laws governing
such proceeding in effect at the time when such damages are to be proved,
whether or not such amount be greater, equal or less than the amounts
recoverable, either as damages or Rent, under this Lease.
21. LANDLORD'S DEFAULT AND TENANT'S REMEDIES.
21.1 DEFAULT. If Tenant believes that Landlord has breached or failed to
comply with any provision of this Lease applicable to Landlord, Tenant will
given written notice to Landlord describing the alleged breach or noncompliance.
Landlord will not be deemed in default under this Lease if Landlord cures the
breach or noncompliance within twenty (20) days after receipt of Tenant's notice
or, if the same cannot reasonably be cured within such 20-day period, if
Landlord in good faith commences to cure such breach or noncompliance within
such period and then diligently pursues the cure to completion. Tenant will
also send a copy of such notice to the holder of any Encumbrance of whom Tenant
has been notified in writing, and such holder will also have the right to cure
the breach or noncompliance within the period of time described above.
21.2 REMEDIES. If Landlord breaches or fails to comply with any provision
of this Lease applicable to Landlord, and such breach or noncompliance is not
cured within the period of time described in Section 21.1, then Tenant may
exercise any right or remedy available to Tenant at law or in equity, except to
the extent expressly waived or limited by the terms of this Lease.
22. SECURITY DEPOSIT.
22.1 AMOUNT. Upon execution of this Lease, Tenant will deposit the
Security Deposit with Landlord in the amount described in Section 1.1(j). At
any time during the Term, subsequent to an increase in Base Rent pursuant to the
terms of this Lease, Tenant will, within thirty (30) days after Landlord's
written request, further deposit with Landlord, as additional Security Deposit,
the amount, if any, required to cause the total Security Deposit held by
Landlord to be equal to one month's installment of the then-current Base Rent
plus one month's installment of the then-estimated Additional Rent. Landlord
and Tenant intend the Security Deposit to be used solely as security for
Tenant's faithful and diligent performance of all of Tenant's obligations under
this Lease. The Security Deposit will remain in Landlord's possession for the
entire Term, and Landlord will not be required to segregate it from Landlord's
general funds. Tenant will not be entitled to any interest on the Security
Deposit.
22.2 USE AND RESTORATION. If Tenant fails to perform any of its
obligations under this Lease, Landlord may, at its option, use, apply or retain
all or any part of the Security Deposit for the payment of (1) any Rent in
arrears; (2) any expenses Landlord may incur as a direct or indirect result of
Tenant's failure to perform; and (3) any other losses or damages Landlord may
suffer as a direct or indirect result of Tenant's failure to perform. If
Landlord so uses or applies all or any portion of
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the Security Deposit, Landlord will notify Tenant of such use or application
and Tenant will, within ten (10) days after the date of Landlord's notice,
deposit with Landlord a sum sufficient to restore the Security Deposit to the
amount held by Landlord immediately prior to such use or application.
Tenant's failure to so restore the Security Deposit will constitute a Default.
22.3 TRANSFERS. Tenant will not assign or encumber the Security Deposit
without Landlord's express written consent. Neither Landlord nor its successors
or assigns will be bound by any assignment or encumbrance unless Landlord has
given its consent. Landlord will have the right, at any time and from time to
time, to transfer the Security Deposit to any purchaser or lessee of the entire
Building. Upon any such transfer, Tenant agrees to look solely to the new owner
or lessee for the return of the Security Deposit.
22.4 REFUND. Provided that Tenant has fully and faithfully performed all
of its obligations under this Lease, Landlord will refund the Security Deposit,
or any balance remaining, to Tenant or, at Landlord's option, to the latest
assignee of Tenant's interest under this Lease, within sixty (60) days after the
expiration or early termination of the Term and Tenant's vacation and surrender
of the Premises to Landlord in the condition required by Section 15.1. If
Tenant fails to make any final estimated payment of Additional Rent required by
Landlord according to Section 3.2(c), Landlord may withhold such final payment
from the amount of the Security Deposit refund.
23. BROKERS. Landlord and Tenant represent and warrant that no broker or agent
negotiated or was instrumental in negotiating or consummating this Lease except
the Brokers. Neither party knows of any other real estate broker or agent who
is or might be entitled to a commission or compensation in connection with this
Lease. Landlord will pay all fees, commissions or other compensation payable to
the Brokers to be paid by Landlord according to Section 1.1(o) and Tenant will
pay all fees, commissions or other compensation payable to the Brokers to be
paid by Tenant according to Section 1.1(o). Tenant and landlord will indemnify
and hold each other harmless from all damages paid or incurred by the other
resulting from any claims asserted against either party by brokers or agents
claiming through the other party.
24. LIMITATIONS ON LANDLORD'S LIABILITY. Any liability for damages, breach or
nonperformance by Landlord, or arising out of the subject matter of, or the
relationship created by, this Lease, will be collectible only out of Landlord's
interest in the Building and no personal liability is assumed by, or will at any
time be asserted against, Landlord, its parent and affiliated corporations, its
and their partners, venturers, directors, officers, agents, servants and
employees, or any of its or their successors or assigns; all such liability, if
any, being expressly waived and released by Tenant. Landlord's review,
supervision, commenting on or approval of any aspect of work to be done by or
for Tenant (under Section 7, EXHIBIT B or otherwise) are solely for Landlord's
protection and, except as expressly provided, create no warranties or duties to
Tenant or to third parties.
25. NOTICES. All notices required or permitted under this Lease must be in
writing and will only be deemed properly given and received (a) when actually
given and received, if delivered in person to a party who acknowledges receipt
in writing; or (b) one business day after deposit with a
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private courier or overnight delivery service, if such courier or service
obtains a written acknowledgment of receipt; or (c) two (2) business days
after deposit in the United States mails, certified or registered mail with
return receipt requested and postage prepaid. All such notices must be
transmitted by one of the methods described above to the party to receive the
notice at, in the case of notices to Landlord, both Landlord's Building
Address and Landlord's General Address, and in the case of notices to Tenant,
the applicable Tenant's Notice Address, or, in either case, at such other
address(es) as either party may notify the other of according to this Section
25.
26. MISCELLANEOUS.
26.1 BINDING EFFECT. Each of the provisions of this Lease will extend to
bind or inure to the benefit of, as the case may be, Landlord and Tenant, and
their respective heirs, successors and assigns, provided this clause will not
permit any transfer by Tenant contrary to the provisions of Section 13.
26.2 COMPLETE AGREEMENT; MODIFICATION. All of the representations and
obligations of the parties are contained in this Lease and no modification,
waiver or amendment of this Lease or of any of its conditions or provisions will
be binding upon a party unless in writing signed by such party.
26.3 DELIVERY FOR EXAMINATION. Submission of the form of the Lease for
examination will not bind Landlord in any manner, and no obligations will arise
under this Lease until it is signed by both Landlord and Tenant and delivery is
made to each.
26.4 NO AIR RIGHTS. This Lease does not grant any easements or rights for
light, air or view. Any diminution or blockage of light, air or view by any
structure or condition now or later erected will not affect this Lease or
impose any liability on Landlord.
26.5 ENFORCEMENT EXPENSES. Each party agrees to pay, upon demand, all
of the other party's costs, charges and expenses, including the fees and
out-of-pocket expenses of counsel, agents, and others retained, incurred in
successfully enforcing the other party's obligations under this Lease.
26.6 RELOCATION OF TENANT. At any time after the Date, Landlord may, upon
at least forty-five (45) days' prior notice, substitute for the Premises other
premises in the Building ("New Premises") provided that the New Premises will be
similar to the Premises in area and usable for Tenant's purpose. If Tenant is
already occupying the Premises, then Landlord will also pay the reasonable
expenses of Tenant's moving from the Premises to the New Premises and for
improving the New Premises so that the leasehold improvements in the New
Premises are substantially similar to those in the Premises. Such move will be
made during evenings, weekends or otherwise so as to incur the least
inconvenience to Tenant.
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26.7 BUILDING NAME. Tenant will not, without Landlord's consent, use
Landlord's or the Building's name, or any facsimile or reproduction of the
Building, for any purpose; except that Tenant may use the Building's name in the
address of the business to be conducted by Tenant in the Premises. Landlord
reserves the right, upon reasonable prior notice to Tenant, to change the name
or address of the Building.
26.8 NO WAIVER. No waiver of any provision of this Lease will be implied
by any failure of either party to enforce any remedy upon the violation of such
provision, even if such violation is continued or repeated subsequently. No
express waiver will affect any provision other than the one specified in such
waiver, and that only for the time and in the manner specifically stated.
26.9 RECORDING; CONFIDENTIALITY. Tenant will not record this Lease, or a
short form memorandum, without Landlord's written consent and any such recording
without Landlord's written consent will be a Default. Tenant agrees to keep the
Lease terms, provisions and conditions confidential and will not disclose them
to any other person without Landlord's prior written consent. However, Tenant
may disclose Lease terms, provisions and conditions to Tenant's accountants,
attorneys, managing employees and others in privity with Tenant, as reasonably
necessary for Tenant's business purposes, without such prior consent.
26.10 CAPTIONS. The captions of sections are for convenience only and
will not be deemed to limit, construe, affect or alter the meaning of such
sections.
26.11 INVOICES. All bills or invoices to be given by Landlord to
Tenant will be sent to Tenant's Invoice Address. Tenant may change Tenant's
Invoice Address by notice to Landlord given according to Section 25. If Tenant
fails to give Landlord specific written notice of its objections within sixty
(60) days after receipt of any xxxx or invoice from Landlord, such xxxx or
invoice will be deemed true and correct and Tenant may not later question the
validity of such xxxx or invoice or the underlying information or computations
used to determine the amount stated.
26.12 SEVERABILITY. If any provision of this Lease is declared void or
unenforceable by a final judicial or administrative order, this Lease will
continue in full force and effect, except that the void or unenforceable
provision will be deemed deleted and replaced with a provision as similar in
terms to such void or unenforceable provision as may be possible and be valid
and enforceable.
26.13 JURY TRIAL. Landlord and Tenant waive trial by jury in any
action, proceeding or counterclaim brought by Landlord or Tenant against the
other with respect to any matter arising out of or in connection with this
Lease, Tenant's use and occupancy of the Premises or the relationship of
Landlord and Tenant. However, such waiver of jury trial will not apply to any
claims for personal injury.
26.14 AUTHORITY TO BIND. The individuals signing this Lease on behalf
of Landlord and Tenant represent and warrant that they are empowered and duly
authorized to bind Landlord or Tenant, as the case may be, to this Lease
according to its terms.
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26.15 ONLY LANDLORD/TENANT RELATIONSHIP. Landlord and Tenant agree
that neither any provision of this Lease nor any act of the parties will be
deemed to create any relationship between Landlord and Tenant other than the
relationship of landlord and tenant.
26.16 COVENANTS INDEPENDENT. The parties intend that this Lease be
construed as if the covenants between Landlord and Tenant are independent and
not dependent and that the Rent will be payable without offset, reduction or
abatement for any cause except as otherwise specifically provided in this Lease.
26.17 GOVERNING LAW. This Lease will be governed by and construed
according to the laws of the State of Colorado.
27. CONSENT RIGHTS OF LANDLORD'S LENDER. Landlord has granted to General
Electric Capital Corporation ("GECC"), as Beneficiary, that First Deed of Trust
and Security Agreement dated as of August 8, 1994 ("Deed of Trust") and in
connection therewith has additionally executed an Assignment of Rents and Leases
dated as of August 8, 1994 in favor of GECC ("Assignment") to secure a loan from
GECC to Landlord ("Loan"). Any cancellation, abridgment, surrender,
modification or amendment of this Lease during the term of the Loan without the
prior written consent of GECC, except as permitted by the provisions of the
Assignment or the Deed of Trust, shall be voidable as against GECC, at its
option.
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Having read and intending to be bound by the terms and provisions of this
Lease, Landlord and Tenant have signed it as of the Date.
TENANT: LANDLORD:
EVANSGROUP, INC., a Utah AMSTAR DENVER, LTD., a Colorado
limited partnership corporation
By: Xxx Xxxxxxx /ss By: ADCBD, Ltd., a Colorado limited
------------------------------ partnership, general partner
Printed Name: Xxx X. Xxxxxxx By: Amstar Capital Management
-------------------- Corporation, a Colorado
corporation, general partner
Title: President & C.E.O. By: Xxxxx X. Xxxxx /ss
------------------------ ----------------------------
Xxxxx X. Xxxxx, President
And By: Xxxxxxx X. Xxxxxxxx /ss
--------------------------
Printed Name: Xxxxxxx X. Xxxxxxxx Approved by Counsel: Xxxxx Xxxx
--------------------- -------------
Title: Senior V.P. - C.E.O.
-------------------------
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STATE OF UTAH Section
Section ss.
COUNTY OF SALT LAKE Section
This Lease Agreement was acknowledged before me this 31 day of October,
1994 by Xxx X. Xxxxxxx as President & CEO and Xxxxxxx X. Xxxxxxxx as Sr. VP &
CFO of Evansgroup, Inc., a Utah corporation.
WITNESS my hand and official seal.
Xxxxx X. Xxxxxxxx /ss
---------------------------------
Notary Public
My Commission Expires: Sept. 8, 1995.
---------------
STATE OF COLORADO Section
CITY AND Section ss.
COUNTY OF DENVER Section
This Lease Agreement was acknowledged before me this 10th day of November,
1994 by Xxxxx X. Xxxxx as President of Amstar Capital Management Corporation, a
Colorado corporation, as general partner of ADCBD, Ltd., a Colorado limited
partnership, as general partner of Amstar Denver, Ltd., a Colorado limited
partnership.
WITNESS my hand and official seal.
Xxxxx X. Xxxxxxxx /ss
--------------------------------
Notary Public
My Commission Expires: August 5, 1995
--------------
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FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (this "First Amendment") is entered into this
10th day of October, 1995, by and between AMSTAR DENVER, LTD., a Colorado
limited partnership ("Landlord"), and EVANSGROUP, INC., a Utah corporation
("Tenant").
W I T N E S S E T H:
WHEREAS, Landlord and Tenant did enter into a Lease Agreement dated October
1, 1994 (the "Lease"), for approximately 10,105 rentable square feet (the
"Original Premises"), in that certain building commonly known as Independence
Plaza located at 0000 Xxxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000; and
WHEREAS, in addition to the Original Premises, Tenant wishes to lease from
Landlord and Landlord wishes to lease to Tenant approximately 1,419 net rentable
square feet on the seventh floor of Independence Plaza (the "Expansion Space");
and
WHEREAS, Tenant and Landlord desire to amend the Lease and enter into such
other agreements as are hereinafter set forth.
NOW, THEREFORE, in consideration of the premises, the mutual promises
contained here, and other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree that said
Lease shall be and the same is hereby amended as of the 10th day of October,
1995 as follows:
1. DEMISE. The following paragraph is hereby added at the end of Section
1.1(d) of the Lease:
"Landlord does hereby lease to Tenant and Tenant hereby leases from
Landlord approximately 1,419 net rentable square feet (the "Expansion Space") as
depicted on Exhibit A - 1, which letting is upon and subject to the terms of the
Lease as amended by this First Amendment. Except as specifically set forth
herein, any reference to the Premises shall, as of the "Expansion Space
Effective Date" (as hereinafter defined), be deemed to include the Original
Premises and the Expansion Space, for an aggregate of approximately 11,524
rentable square feet."
2. TERM. The Section 1.1(f) of the Lease is hereby deleted and is
replaced with the following:
"Term" means the duration of this Lease, which will be approximately
seventy-two months, beginning October 1, 1994 ("Commencement Date") and ending
on September 30, 2000 ("Expiration Date"). Notwithstanding the foregoing, the
term of this Lease with respect to the Expansion Space shall commence on
November 1, 1995 (the "Expansion Space Effective Date"), and shall end on the
Expiration Date."
3. COMPLETION OF THE EXPANSION SPACE. Exhibit B-1 attached hereto is
hereby added to the Lease.
4. BASE RENT. The following paragraph is hereby added to Section 1.1(g)
of the Lease:
"Effective as of the Expansion Space Effective Date, Base Rent shall
be increased as set forth below:
MONTHS AMOUNT OF BASE RENT PAYABLE PER MONTH
------ -------------------------------------
13-24 $11,642.25
25-36 $12,122.42
37-48 $12,602.64
49-60 $13,082.76
61-72 $13,562.91
5. TENANT'S SHARE. Section 1.1(h) of the Lease is amended to add the
following after the first sentence of said Section:
"Notwithstanding the foregoing, from and after the Expansion Space
Effective Date, "Tenant's Share" shall mean with respect to the calculation of
Additional Rent according to Section 3.2, 1.985%."
6. PARKING. The first sentence of Section 19 of the Lease is hereby
deleted and hereby replaced with the following:
"Tenant may elect to lease up to 12 unassigned spaces in the parking
garage at the Building for the parking of vehicles."
7. TERMINATION OPTION. Subsection (ii)(a) of the first sentence of
Section 28 is hereby amended by deleting the number "$26,576.00" and replacing
the same with the number "$30,308.12".
8. CREDIT OF UNUSED BALANCE OF LANDLORD'S EXPANSION ALLOWANCE.
The following Section 30 is hereby added to the Lease:
"30. CREDIT OF UNUSED BALANCE OF LANDLORD'S EXPANSION ALLOWANCE.
Notwithstanding anything contained in this Lease to the contrary and
subject to the following conditions. Tenant shall have the right to
elect to utilize any unused portion of Landlord's Expansion Allowance
as a credit against Rent for
the months of February and March, 1996, provided (i) Tenant is not
in default under this Lease at the time of such election and (ii)
Tenant gives Landlord written notice of such election no later than
January 15, 1996. In the event Tenant fails to comply with both of
the immediately foregoing conditions, Tenant shall be deemed to
have waived its right to utilize said any unused portion of
Landlord's Expansion Allowance as a credit against Rent."
9. BROKERS. Landlord and Tenant hereby represent and warrant to each
other that they have not dealt with any broker, agent or finder other than
BetaWest, Inc. and CB Commercial, and Xxxxxx and Company for whose commission
Landlord shall be responsible under separate agreements, in connection with this
First Amendment, and Landlord and Tenant hereby agree to indemnify and hold the
other party harmless from all damages, liabilities and expenses, including
reasonable attorneys' fees, arising from any claims or demands of any other
broker, agent or finder for any commission alleged to be due to such broker,
agent or finder in connection with this Lease.
10. CONTINGENT ON GECC APPROVAL. Landlord has granted to General Electric
Capital Corporation ("GECC"), as Beneficiary, that First Deed of Trust and
Security Agreement dated as of August 8, 1994 ("Deed of Trust") and in
connection therewith has additionally executed an Assignment of Rents and Leases
dated as of August 8, 1994 in favor of GECC ("Assignment") to secure a loan from
GECC to Landlord ("Loan"). Any cancellation abridgment, surrender, modification
or amendment of the Lease during the term of the Loan without the prior, written
consent of GECC, except as permitted by the provisions of the Assignment or the
Deed of Trust, shall be voidable as against GECC, at its option. Tenant and
Landlord hereby acknowledge that this First Amendment shall be contingent upon
GECC's approval of this First Amendment.
11. MISCELLANEOUS.
A. Except as expressly modified herein, the Lease remains in full
force and effect and is hereby ratified by the parties hereto.
B. Capitalized terms not defined herein shall have the same meaning
as set forth in the Lease.
C. In the event of any conflict between the Lease and this First
Amendment, the terms and provisions of this First Amendment shall control.
D. In the event of any litigation arising out of or in connection
with this First Amendment, the prevailing party shall be awarded reasonable
attorneys' fees, costs and expenses.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
to Lease as of the day and year first above written.
LANDLORD:
AMSTAR DENVER, LTD., a Colorado limited partnership
By: ADCBD, LTD., a Colorado limited partnership,
its General Partner
By: AMSTAR CAPITAL MANAGEMENT CORPORATION,
a Colorado corporation, its General Partner
By: /s/ XXXXX X. XXXXX
--------------------------------------------
Xxxxx X. Xxxxx, President
TENANT:
EVANSGROUP, INC., a Utah corporation
By:
--------------------------------------------
Title: Vice Chairman
------------------------------------------
