DENVER PLACE RANCHER ENERGY CORP. OFFICE LEASE
DENVER
PLACE
DENVER
PLACE
I
N D E X
General
Lease Provisions--
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1.
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THE
LEASED PREMISES
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1
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2.
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DEFINITIONS
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1
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3.
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TERM
OF LEASE
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2
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4.
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BASE
RENT
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2
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5.
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COMMENCEMENT
AND CONDUCT OF BUSINESS
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3
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6.
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QUIET
ENJOYMENT
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3
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7.
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SERVICES
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3
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7.01
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Standard
Services
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3
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7.02
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Additional
Services
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4
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7.03
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Interruption
of Service
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5
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7.04
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Telephone
Service Paid by Tenant
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5
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8.
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BUSINESS
TAXES, ETC
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6
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9.
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METERS
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6
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10.
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USE
OF ELECTRICITY
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6
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11.
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REPAIRS
AND MAINTENANCE
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6
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12.
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ASSIGNMENT,
SUBLETTING, PARTING WITH POSSESSION
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7
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13.
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RULES
AND REGULATIONS
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10
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14.
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USE
OF LEASED PREMISES
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10
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15.
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TENANT'S
INSURANCE
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10
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16.
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CANCELLATION
OF INSURANCE
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11
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17.
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OBSERVANCE
OF LAW
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12
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18.
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WASTE
AND NUISANCE
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12
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19.
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ENTRY
BY LANDLORD
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12
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20.
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INDEMNIFICATION
OF LANDLORD
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12
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21.
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EXHIBITING
PREMISES
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13
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22.
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ALTERATIONS
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13
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23.
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GLASS
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14
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24.
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SIGNS
AND ADVERTISING
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14
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25.
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NAME
OF BUILDING
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14
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26.
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SUBORDINATION
AND ATTORNMENT
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14
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27.
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ACCEPTANCE
OF PREMISES
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14
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28.
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ESTOPPEL
CERTIFICATES
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15
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29.
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FIXTURES
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15
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30.
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LANDLORD'S
INSURANCE
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15
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31.
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FIRES,
ETC
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16
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32.
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CONDEMNATION
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16
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33.
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LOSS
AND DAMAGE
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17
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34.
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DELAYS
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17
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35.
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XXXXXXX
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00
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00.
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XXXXXXXX
XX XXXXXXXX
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00
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00.
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HOLDING
OVER
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20
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38
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DIRECTORY
BOARD
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21
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39.
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TRANSFER
BY LANDLORD
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21
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40.
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NOTICE
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21
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41.
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GOVERNING
LAW
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22
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42.
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LEASE
ENTIRE AGREEMENT
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22
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43.
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BINDING
EFFECT
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22
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44.
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SECURITY
DEPOSIT
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22
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45.
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INTERPRETATION
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22
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46.
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SEVERABILITY
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23
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47.
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INDEPENDENT
COVENANTS
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23
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48.
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ADDITIONAL
NOTICES
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23
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49.
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GOVERNMENTALLY
REQUIRED IMPROVEMENTS
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23
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i
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50.
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RECORDING
- SHORT FORM MEMO
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23
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51.
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REAL
ESTATE BROKER
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24
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52.
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CAPTIONS
AND EXHIBITS
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24 | |||
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53.
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SUBSTITUTION
OF OTHER PREMISES
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24 | |||
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54.
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ADDITIONAL
CHARGES FOR TAXES AND LANDLORD'S OPERATING EXPENSES
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25 | |||
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55.
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HAZARDOUS
MATERIALS
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29 | |||
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56.
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TELEPHONE
AND TELECOMMUNICATIONS SERVICE
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29 | |||
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57.
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TRANSFER
OF LANDLORD'S INTEREST
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31 | |||
| 58. |
TIME
IS OF THE ESSENCE
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31 | |||
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59.
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ADDITIONAL
PROVISIONS
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31 | |||
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59.01
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Warranty
Disclaimer
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31 | |||
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59.01
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Waiver
of Trial by Jury
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31 | |||
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59.03
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Force
Majeure
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31 | |||
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59.04
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Survival
of Indemnities
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31 | |||
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59.05
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Executive
Orders
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31 | |||
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59.06
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Americans
With Disabilities Act
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32 |
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Addendum
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Exhibit
A
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Leased
Premises Diagram
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Exhibit
A-1
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Layout
Plans (to be attached upon completion)
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Exhibit
A-2
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Offer
Space Diagram
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Exhibit
B
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Rules
and Regulations
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Exhibit
C
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Lease
Term Agreement
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Exhibit
D
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Parking
Agreement
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Exhibit
E
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List
of Landlord's Furniture
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Exhibit
E-1
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Form
of Xxxx of Sale
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ii
DENVER
PLACE
Office
Lease Facing Page
THIS
OFFICE LEASE FACING PAGE, together with the General Lease Provisions and any
Schedules or Riders and Lease Guaranties attached hereto, shall constitute
the
Lease between Tenant described below, as Tenant, and DENVER PLACE ASSOCIATES
LIMITED PARTNERSHIP, a Delaware limited partnership, as Landlord, for the Leased
Premises described below, made and entered into as of the Lease Date specified
below.
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LEASE
DATE:
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October
30, 2006
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LANDLORD:
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DENVER
PLACE ASSOCIATES LIMITED
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PARTNERSHIP,
a Delaware limited partnership
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TENANT:
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RANCHER
ENERGY CORP., a Nevada corporation
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LEASED
PREMISES:
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Suite
Number:
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1740
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Floor:
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Seventeenth
(17th) floor, South Tower
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Total
Rentable Area
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of
the Leased Premises:
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5,869
square feet of rentable area
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LEASE
TERM:
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Commencement
Date:
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November
10, 2006*
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Lease
Period:
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Sixty-Three
(63) months
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Lease
Expiration:
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February
9, 2012**
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*
subject
to adjustment pursuant to subsection 2.01(b) of the Lease
**
subject to adjustment pursuant to subsection 2.01(i) of the Lease
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BASE
RENT:
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Months
1-3:
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$
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0.00
per annum / $0.00 per month
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Months
4-12:
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$
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114,445.56
per annum / $9,537.13 per month
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Months
13-36:
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$
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120,314.52
per annum / $10,026.21 per month
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Months
37-48:
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$
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129,117.96
per annum / $10,759.83 per month
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Months
49-63:
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$
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132,052.56
per annum / $11,004.38 per month
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Base
Operating Cost including Real Estate Taxes shall be the total amount of
Operating Expenses (on a per rentable square foot basis) incurred by Landlord
during the Calendar Year 2007 (Landlord's Operating Expense
Contribution)
| Proportionate Share of applicable taxes and | ||||||
|
Building
Operating Expenses:
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5,869
|
|||||
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754,288
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= |
0.78
|
% | |||
| LEASE DEPOSIT: |
$40,104.84
payable at the time of execution and delivery of Lease by Tenant,
and
subject to adjustment pursuant to the provisions of Section 44.01
and
subsection 62.02(d) of the
Addendum.
|
-1-
GENERAL
OFFICE LEASE PROVISIONS
WHEREAS,
Landlord owns that building commonly known as Denver Place and located at 000
-
00xx Xxxxxx, Xxxxxx, Xxxxxxxx 00000 (hereinafter called the "Building"), which
is situated on a portion of real property being more particularly described
as
Lots 1 through 32 inclusive, Block 110, East Denver Subdivision City and County
of Denver, State of Colorado. The Building, the land upon which the Building
stands and the land and improvements surrounding the Building and designated
from time to time by Landlord as land or common areas appurtenant to or
servicing the Building, together with any other buildings or land located on
the
above-described real property are hereinafter called the "Real Property";
and
WHEREAS,
Landlord has agreed to lease to Tenant the Leased Premises hereinafter on the
terms and conditions hereinafter set forth:
1. THE
LEASED PREMISES
1.01 NOW,
THEREFORE, in consideration of the rent and the covenants and agreements
hereinafter made on the part of the Tenant to be paid, observed and performed,
the Landlord has demised and leased and by these presents does demise and lease
the Leased Premises described on the Office Lease Facing Page, attached hereto
and depicted on the drawing attached hereto as Exhibit
A
and
forming part hereof but excluding therefrom any part of the exterior face of
the
Building to the Tenant, together with the right of the Tenant in common with
the
Landlord, its other tenants, sub-tenants and invitees thereof to the
nonexclusive use of the following portions of the Building:
(a) the
entrance foyer and lobby of the Building; and
(b) the
common corridors on the floor of the Building on which the Leased Premises
are
situated and other areas appurtenant to or servicing the Building, together
with
public entrance doors, halls, stairways, passages, elevators, shipping and
receiving areas and lavatories in the Building, provided, however, that Landlord
shall have the right from time to time to eliminate, substitute, build upon
or
rearrange all of items (a) and (b) above, including, but not limited to, the
garden court on the third floor of the Building, as Landlord deems appropriate
in its discretion.
2. DEFINITIONS
2.01 In
this
Lease or on the Office Lease Facing Page, the following terms or words shall
have the following meanings:
(a) "Business
Day" means any of the days from Monday to Friday excluding any nationally
recognized holiday.
(b) "Commencement
Date" means the date so designated on the Office Lease Facing Page, attached
hereto, or the date upon which the Landlord notifies the Tenant that the Leased
Premises are ready for occupancy, whichever last occurs.
(c) "Net
Rentable Square Feet" or "Net Rentable Area", as the term is used throughout
this Lease, for a multiple tenancy floor means the total square feet which
is
computed by measuring to the inside finish of permanent outer building walls,
or
to the center line of the glass if a portion of the outer building wall is
glass, to the center line of corridor partitions, and to the center of
partitions that separate the Leased Premises from adjoining rentable area.
No
deductions shall be made for columns and projections necessary to the
Building.
(d) "Net
Rentable Square Feet" or "Net Rentable Area", as the term is used throughout
this Lease, for a single tenancy floor, means the total square feet which is
computed by measuring to the inside finish of permanent outer building walls,
or
from the center line of glass. Net Rentable Area shall include all area within
outside walls less stairs, elevator shafts, flues, pipe shafts, and vertical
ducts. No deductions shall be made for columns and projections necessary to
the
Building. Lavatories or public toilets within and exclusively serving only
that
floor, janitor closets, electrical closets, telephone closets, slop sinks and
a
proportionate share of main and second floor lobby areas shall be included
in
Net Rentable Area.
-2-
(e) "Normal
Business Hours" means the hours from 8 a.m. to 6 p.m. on Business Days and
the
hours 8 a.m. to 1 p.m. on Saturdays excluding nationally recognized
holidays.
(f) "Proportionate
Share" means the amount so designated on the Office Lease Facing Page, attached
hereto and calculated by dividing the Total Rentable Area as set forth on the
Facing Page by 95% of the Total Rentable Area of the Building.
(g) "Public
Areas" means and shall include all square feet or areas on the floor less the
Net Rentable square feet and less public stairs, public elevator shafts, flues,
stacks, pipe shafts, vertical ducts and vents.
(h) "Rent",
as the term is used throughout this Lease, shall denote the "Base Rent," as
is
hereinafter defined, plus all other financial obligations of the Tenant
hereunder which are herein described as "Additional Rental" or "Additional
Rent."
(i) "Term"
means the number of months in the Lease Period, set forth on the Office Lease
Facing Page attached hereto, to be computed from 12 o'clock noon on the
Commencement Date and expiring at 12 o'clock noon the last day of such Lease
Term.
(j) "Total
Rentable Area of the Leased Premises" means the total square feet of the Net
Rentable Area of the Leased Premises and Tenant's Proportionate Share of the
Public Areas on a multiple-tenancy floor; or the total square feet of the Net
Rentable Area on a single-tenancy floor.
(k) "Total
Rentable Area of the Building" shall mean 754,288 square feet, which is 95%
of
the rentable area of the Building.
3. TERM
OF LEASE
3.01 Tenant
shall have the right to have and hold the Leased Premises for and during the
Term subject to the payment of the Base Rent and the Additional Rent and the
full and timely performance by Tenant of the covenants and conditions
hereinafter set forth. In the event that the Commencement Date has not occurred
on or before December 15, 2006, then this Lease may be terminated by either
party upon delivery of written notice to the other party, and in such event
both
parties hereto shall be released from all obligations hereunder; provided,
however, that in the event the delay in the commencement of the Term is due
to a
Tenant Delay (hereinafter defined) Tenant shall not have the right to elect
to
terminate this Lease pursuant to the provisions of this Section 3.01. In the
event that the actual Commencement Date of the Lease is other than as set forth
on the Office Lease Facing Page, Landlord and Tenant shall execute a Lease
Term
Agreement in the form attached hereto as Exhibit
C.
4. BASE
RENT
4.01 Tenant
covenants and agrees to timely pay without notice, deduction, set-off or
abatement to the Landlord, except as otherwise expressly provided in this Lease,
at DENVER PLACE ASSOCIATES LIMITED PARTNERSHIP, X/X XXXXXXXXXX, XXXXXX, XXXXXXXX
00000-0000, or such other address as Landlord may notify Tenant of in writing
not less than thirty (30) days prior to the effective date of the change in
address, yearly and every year during the Term hereof, the annual Base Rent,
in
lawful money of the United States, payable in monthly installments set forth
on
the Office Lease Facing Page, attached hereto, each month, in advance on the
tenth (10th) day of each month during the Term hereof. If the Term hereof
commences on any day other than the first day of the month, Base Rent for the
fractions of a month at the commencement of the Term shall be adjusted pro
rata
on a per diem basis using a thirty (30) day month.
-3-
5. COMMENCEMENT
AND CONDUCT OF BUSINESS
5.01 Tenant
shall occupy the Leased Premises in a reputable manner and in compliance with
the provisions of this Lease and the requirements of all applicable governmental
laws and regulations.
6. QUIET
ENJOYMENT
6.01 Landlord
covenants that if, and so long as Tenant performs each and every covenant,
agreement, term, provision and condition of this Lease on the part and on behalf
of Tenant to be kept and performed, Tenant shall quietly enjoy its rights under
this Lease without hindrance or molestation by Landlord, subject to the
covenants, agreements, terms, provisions and conditions of this
Lease.
7. SERVICES
7.01 Standard
Services
.
(a) Climate
Control.
Subject
to any applicable law, rule, or governmental order or regulation, Landlord
shall
provide climate control to the Leased Premises during Normal Business Hours
to
maintain a temperature adequate for comfortable occupancy, except during the
making of repairs, alterations or improvements, provided that the
recommendations of Landlord's engineer regarding occupancy and use of the Leased
Premises are complied with by Tenant, and provided that the Landlord shall
have
no responsibility or liability for failure to supply climate control service
when stopped as aforesaid or when prevented from doing so by strikes or any
cause beyond the Landlord's reasonable control, including failure of any utility
company to provide the Building with appropriate utility service. The Tenant
acknowledges that the Landlord has installed in the Building a system for the
purpose of climate control, which system is designed to heat and cool during
normal occupancy of the Leased Premises as general offices on the basis of
the
recommendation of Landlord's engineer regarding occupancy and use of the Leased
Premises and based upon the window shading (which shading shall, unless
otherwise consented to by Landlord, be uniform in the Building) being fully
closed in those offices having exterior windows exposed to the sun and without
regard to the Tenant's specific use thereof or the installation of any computers
or data processing equipment.
(b) Elevator
Service.
(1) Subject
to the Rules and Regulations referred to in Section 13.01, the Landlord shall
furnish to the Building in which the Leased Premises are located, except when
repairs are being made, elevator service during Normal Business Hours, provided
that the Tenant, its employees and all other persons using the same shall do
so
at their own risk.
(2) There
shall be no liability on the Landlord for any claim in respect of any failure
by
the Landlord to provide elevator service during any power failure or other
cause
beyond the control of the Landlord or by reason of the carrying out of any
repairs, maintenance, or replacement of elevators, nor shall there be, as a
result of the foregoing, any repayment of or reduction or abatement in the
rent
reserved hereby.
(c) Janitorial
Services.
The
Landlord shall cause, when reasonably necessary from time to time, the floors
to
be swept or vacuumed and windows to be cleaned and the desks, tables and other
furniture of the Tenant to be dusted, trash removed (waste baskets), and
replacement of fluorescent bulbs in Building standard lighting fixtures, all
in
keeping with a first class office building, provided, however, that Landlord
shall not be responsible for any act of omission or commission on the part
of
the person or persons employed to perform such work; such work shall be done
at
the Landlord's direction without interference by the Tenant, its servants or
employees.
(d) Water
and Electricity.
Subject
to any law, rule or governmental order or regulation, the Landlord shall make
available domestic water and, if available, at Landlord's discretion, condenser
water, in reasonable quantity and cause electric current to be supplied for
lighting the Leased Premises and public halls and for the operation of office
equipment, subject to the provisions of Sections 9 and 10 hereof.
-4-
7.02 Additional
Services.
The
following services are being provided to the Leased Premises in addition to
the
standard services described in Section 7.01 above ("Additional Services") and
the costs and expenses incurred by Landlord will be charged directly to Tenant
as an Additional Services Charge and will not be included in the Operating
Expenses for the Building:
(a) Climate
Control Alterations.
Any use
of the Leased Premises not in accordance with the design standards or
arrangement of partitioning which interferes with the normal operation of the
climate control system described in subsection 7.01(a) above may require changes
or alterations in the system or ducts through which the same operates. Any
changes or alterations so occasioned, if such changes can be accommodated by
the
Landlord's equipment, shall be made by the Tenant at its cost and expense but
only with the prior written consent of the Landlord, first had and obtained
(which consent shall not be unreasonably withheld, conditioned or delayed),
and
in accordance with drawings and specifications and by a contractor first
approved in writing by the Landlord, at Tenant's cost and expense. If Tenant
shall install, or cause to have installed partitions, equipment or fixtures
after the Leased Premises have been balanced originally and such installation
necessitates the re-balancing of the climate control equipment in the Leased
Premises, the same will be performed by the Landlord at the Tenant's expense
as
Additional Services payable on demand, or Landlord may xxxx Tenant for such
services with other Additional Services. The Tenant acknowledges that one (1)
year may be required after the Tenant has fully occupied the Leased Premises
in
order to adjust and balance the climate control systems.
(b) Excess
Utility Use.
If the
Tenant's equipment requires utilities in excess of normal quantities set forth
in Sections 9 and 10 of this Lease, any facilities to supply excess quantities,
including, without limitation, additional risers, cabling, pipelines, or
conduits, may be provided by the Landlord at the sole expense of the Tenant
as
Additional Services, and in accordance with Sections 9 and 10, subject to the
following conditions:
(1) the
Landlord's certified electrical engineer or other consultants shall determine
that such excess facilities are required by the Tenant's equipment;
(2) it
is
within the capabilities of the Landlord and the existing structure to provide
such excess utilities;
(3) the
Landlord shall have the right of refusal to supply in the event that the
supplying of additional facilities shall in any way affect the operation of,
the
aesthetics of or structure of the Building, or in any way reduce the efficiency
of existing electricity, water or other utility supplied to the Building as
a
part of the whole thereof;
(4) the
supplying of additional facilities in order to make the required utilities
available to the Tenant shall be subject to compliance with all provisions
of
law including, without limitation, federal legislative enactments, ordinances
and other governmental or municipal regulations which shall in any way relate
to
the work necessary to be undertaken to make said utilities available;
and
(5) the
Tenant shall pay to the Landlord the cost of such excess services as Additional
Services from time to time upon demand, or Landlord may xxxx Tenant for such
services with other Additional Services, such excess services cost to be
determined by the Landlord's certified, professional engineer for the supply
of
condenser water to the Leased Premises.
(c) Non-Standard
Equipment.
In the
event Tenant’s use of the Leased Premises includes the use of existing, or the
installation of any new machines, equipment, or devices in the Leased Premises
that do not constitute standard office equipment provided or available to all
tenants of the Building, including, without limitation, refrigerators,
dishwashers, garbage disposals, air conditioning units, heating units,
computers, water heaters, and such other machines, equipment, or devices
("Non-Standard Equipment"), the maintenance, repair and replacement of all
such
Non-Standard Equipment located in the Leased Premises, regardless of whether
such Non-Standard Equipment existed in the Leased Premises on the Commencement
Date or such Non-Standard Equipment was placed in the Leased Premises after
the
Commencement Date, shall be made by Tenant at Tenant’s sole cost and expense. In
the event Tenant fails to maintain, repair or replace any Non-Standard Equipment
located in the Leased Premises, after ten (10) days written notice of such
failure from Landlord, Landlord shall have the option (but not the obligation)
to enter the Leased Premises to undertake the necessary maintenance, repairs
or
replacements of such Non-Standard Equipment and Tenant shall reimburse Landlord
for all of Landlord’s costs and expense incurred in such maintenance, repair or
replacement as Additional Rent.
-5-
(d) Excess
Janitorial Services.
If
Tenant requires any janitorial or cleaning services in excess of the amounts
provided by Landlord according to subsection 7.01(c) (such as cleaning services
beyond normal office janitorial services for kitchens, computer rooms, or other
special use areas and carpet cleaning), Landlord will provide such excess
services to Tenant within a reasonable period after Tenant's request is made
to
the manager of the Building, provided that such excess services are available
from Landlord's regular janitorial or cleaning contractor. Tenant will pay
the
cost of such excess services as Additional Services. Landlord will also provide,
within a reasonable period after Tenant's request is made to the manager of
the
Building, or at Tenant's cost and to the extent available to Landlord,
replacement of bulbs, tubes, or ballasts in any Building non-standard lighting
fixtures in the Leased Premises. Tenant will pay the costs of such services
as
Additional Services.
(e) Excess
Services.
If
Tenant requires any work, service, or materials performed for, or facilities
or
materials furnished to Tenant, to a greater extent or in a manner more favorable
to Tenant than those performed for or furnished to other tenants of the
Building, including, but not limited to, supplying paper towels, restocking
recycling containers, hanging pictures or whiteboards, providing extra keys
to
the Leased Premises and any other work or services which relate to Tenant's
use
of the Leased Premises, Landlord will provide such excess services to Tenant
within a reasonable period after Tenant's request is made to the manager of
the
Building provided that such excess services are available from the manager
of
the Building, or the contractors already retained by the manager of the
Building. Tenant will pay the cost of such excess services as Additional
Services.
7.03 Interruption
of Service
. Tenant
agrees that Landlord shall not be liable for failure to supply any such heating,
air conditioning, elevator or janitor services or electric current during any
period when Landlord uses reasonable diligence to supply such services or
current. It is understood that Landlord reserves the right to temporarily
discontinue such services, or any of them, or such current at such time as
may
be necessary by reason of accident, unavailability of employees, repairs,
alterations or improvements or whenever by reason of strikes, lockouts, riots,
acts of God or any other happening beyond the control of Landlord. Landlord
shall not be liable for damages to persons or property for any such
discontinuance, nor shall such discontinuance in any way be construed as
eviction of or cause an abatement of rent or operate to release Tenant from
any
of the Tenant's obligations hereunder. Landlord's obligation to furnish services
or current shall be conditioned upon the availability of adequate energy sources
from the public utility companies then servicing the downtown area of the City
and County of Denver. Landlord shall have the right to reduce heating, cooling
or lighting within the Leased Premises and in the public areas in the Building
as required by any mandatory or voluntary fuel or energy program. Landlord
shall
have the right to enter upon the Leased Premises at all reasonable times after
reasonable oral notice in order to make such repairs, alterations or adjustments
as shall be necessary in order to comply with the provisions of any mandatory
or
voluntary fuel or energy saving allocation or similar statute, regulation or
program. Notwithstanding the foregoing provisions of this Section 7.03, Base
Rent shall be abated as provided below in the case Landlord fails to provide
a
service which Landlord has agreed to provide under this Section 7.02, if (i)
the
provision of the interruption of the service is within the reasonable control
of
Landlord, (ii) if such interruption continues for seven (7) consecutive business
days, and (iii) as a result of such interruption Tenant is not able to use
the
Leased Premises (or the affected portion thereof) for the operation of Tenant’s
business. In the event of the occurrences of the foregoing, the Base Rent for
the Leased Premises (or, if only a portion of the Leased Premises is affected,
prorated for such portion) shall be abated commencing on the eighth (8th)
business day of such disruption until the service in question has been
restored.
7.04 Telephone
Service Paid by Tenant
. Tenant
shall separately arrange with the applicable local public authorities or
utilities, as the case may be, for the furnishing of, and payment for all
telephone services as may be required by Tenant in the use of the Leased
Premises. Tenant shall directly pay for such telephone services, including
the
establishment and connection thereof, at the rates charged for such services
by
said authority or utility and the failure of Tenant to obtain or to continue
to
receive such services for any reason whatsoever shall not relieve Tenant of
any
of its obligations under this Lease.
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8. BUSINESS
TAXES, ETC.
8.01 Tenant
shall fully and timely pay all business and other taxes, charges, rates, duties,
assessments and license fees levied, rates imposed, charged or assessed against
or in respect of the Tenant's occupancy of the Leased Premises or in respect
of
the personal property, trade fixtures, furniture and facilities of the Tenant
or
the business or income of the Tenant on and from the Leased Premises, if any,
as
and when the same shall become due, and to indemnify and hold Landlord harmless
from and against all payment of such taxes, charges, rates, duties, assessments
and license fees and against all loss, costs, charges and expenses occasioned
by
or arising from any and all such taxes, rates, duties, assessments and license
fees.
8.02 Tenant
shall promptly deliver to Landlord for inspection at Landlord's option, upon
written request of the Landlord, receipts for payment of all taxes, charges,
rates, duties, assessments and licenses in respect of all improvements,
equipment and facilities of the Tenant on or in the Leased Premises which were
due and payable up to one (1) year prior to such request, and in any event
to
furnish to the Landlord, if requested by the Landlord, evidence, satisfactory
to
the Landlord of any such payments.
9. METERS
9.01 Tenant
shall pay as an Additional Services Charge, on demand, or Landlord may xxxx
Tenant for such services with other Additional Services, the cost of any
metering which may be requested by the Tenant to be installed by the Landlord
in
the Building for the purpose of determining any utility (including electricity
and water) consumed in the Leased Premises or any metering which may be required
by the Landlord to measure any excess usage of electricity, water or other
utility or energy.
10. USE
OF ELECTRICITY
10.01 Tenant's
use of electricity in the Leased Premises shall be for the operation of building
standard lighting, electrical fixtures, desk-top computers and other office
machines and lamps and shall not at any time exceed the capacity of any of
the
electrical conductors and equipment in or otherwise serving the Leased
Premises.
10.02 In
order
to ensure that such capacity is not exceeded and to avert possible adverse
effect upon the Building's electrical services, the Tenant shall not, without
the Landlord's prior written consent in each instance, connect any additional
fixtures, appliances or equipment (other than normal office electrical fixtures,
lamps, desk-top computers and similar office machines) to the Building's
electrical distribution system or make any alterations or additions to the
electric system of the Leased Premises existing at the commencement of the
Term.
If the Landlord grants such consent, the cost of all additional risers and
other
equipment required therefor shall be charged to Tenant as an Additional Services
Charge and paid by Tenant to Landlord upon demand, or Landlord may xxxx Tenant
for such services with other Additional Services. Furthermore, Tenant shall,
at
Landlord's option, pay on demand as Additional Services, the cost of any
electric current or other energy for the operation of heavy accounting
equipment, copy equipment, computer equipment or other equipment requiring
more
than is necessary for normal business office use as determined by the
Landlord.
11. REPAIRS
AND MAINTENANCE
11.01 If
the
Building, the elevators, boilers, engines, pipes and other apparatus, or members
or elements of the Building (or any of them) used for the purpose of climate
control of the Building or operating the elevators, or if the water pipes,
drainage pipes, electric lighting or other equipment of the Building or the
roof
or outside walls of the Building or parking facilities of Landlord become
damaged or are destroyed through the negligence, carelessness or misuse of
the
Tenant, its servants, agents, employees or anyone permitted by Tenant to be
in
the Building, or through Tenant, then the cost of the necessary repairs,
replacements or alterations shall be borne by the Tenant who shall forthwith
pay
the same on demand to the Landlord as Additional Rent.
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11.02 Tenant
shall keep the Leased Premises in as good order, condition and repair as when
they were entered upon, loss by fire or other casualty (unless caused by the
negligence of Tenant, its agents, employees or invitees or the gross negligence
or willful and wrongful acts of Landlord), unavoidable accident or ordinary
wear
and tear excepted. If Tenant fails to keep the Leased Premises in such good
order, condition and repair as required hereunder to the satisfaction of
Landlord, Landlord may restore the Leased Premises after three (3) business
days
prior written notice to Tenant (except in the event of an emergency or in the
event there is a threat to the continuance of any insurance coverage in which
case no prior written notice shall be required) to such good order and condition
and make such repairs without liability to Tenant for any loss or damage that
may accrue to Tenant's property or business by reason thereof, and upon
completion thereof, Tenant shall pay to Landlord, as Additional Rent, upon
demand, the cost of restoring the Leased Premises to such good order and
condition and of the making of such repairs.
11.03 Tenant
shall deliver, at the expiration of the Term hereof or sooner upon termination
of the Term, the Leased Premises in good repair as aforesaid and in a state
of
broom cleanliness. In the event Tenant fails to vacate the Leased Premises
on a
timely basis as required, Tenant shall be responsible to Landlord for all costs
incurred by Landlord as a result of such failure, including, but not limited
to,
any amounts required to be paid to third parties who were to have occupied
the
Leased Premises.
11.04 Tenant
shall leave the Leased Premises at the end of each Business Day in a reasonably
tidy condition for the purpose of allowing the performance of the Landlord's
cleaning services hereinabove described.
11.05 Landlord
shall (subject to Articles 31 and 32 and Landlord's rights under Article 54
and
except for ordinary wear and tear) maintain the exterior walls and roof and
load
bearing elements of the Building and perform routine maintenance in the Common
Areas (hereinafter defined). Except for load bearing elements of the Building
located within the Leased Premises, Landlord shall not be required to maintain
or repair any portions of the Leased Premises.
12. ASSIGNMENT,
SUBLETTING, PARTING WITH POSSESSION
12.01 Tenant
shall not, without the prior written consent of Landlord (which shall not be
unreasoanbly withheld in the case of an assignment or subletting), (i) assign,
convey or mortgage this Lease or any interest hereunder except to an Affiliate
(hereinafter defined) who is not a Prohibited Entity (hereinafter defined);
(ii)
suffer to occur or permit to exist any assignment of this Lease to an entity
which is not an Affiliate ("Non-Affiliate"), or any lien upon Tenant's interest
hereunder, whether voluntarily, involuntarily or by operation of law; (iii)
sublet the Leased Premises or any part thereof to a Non-Affiliate; (iv) permit
the use of the Leased Premises by any parties other than Tenant, its Affiliates
and their respective employees. Any such action on the part of Tenant without
Landlord's consent, shall be void and of no effect. Landlord's consent to any
assignment, subletting or transfer or any assignment, subletting or transfer
permitted in this Article 12, or Landlord's election to accept any assignee,
subtenant or transferee as the tenant hereunder and to collect rent from such
assignee, subtenant or transferee shall not release Tenant or any subsequent
tenant from any covenant or obligation under this Lease. Landlord shall be
entitled to withhold consent to a proposed assignment arbitrarily if Landlord
exercises the right hereinafter set out in Section 12.03. Landlord shall respond
to a request by Tenant to sublet or assign within ten (10) business days after
Landlord's receipt of such request and information pertaining to the proposed
subtenant or assignee required under this Article 12. The sale of fifty percent
(50%) or more of the stock of Tenant, if Tenant is a corporation, shall
constitute an assignment of the Lease for purposes of this Section 12.01.
Consent of the Landlord to an assignment or subletting shall not in any way
be
construed to relieve the Tenant from obtaining the consent of the Landlord
to
any further assignment or subletting. Without limitation of the circumstances
in
which Landlord's withholding of consent to an assignment or subletting shall
not
be unreasonable, it shall not be unreasonable for Landlord to withhold its
consent if the reputation, financial responsibility, or business of the proposed
assignee or subtenant is unsatisfactory to Landlord, or if Landlord deems such
business to be not consonant with that of other tenants in the Building, or
if
the intended use by the proposed assignee or subtenant conflicts with any
commitment made by Landlord to any other tenant in the Building, or if in
Landlord's reasonable judgment the assignment or subletting will have financial
consequences adverse to Landlord's interest, or if the proposed assignee or
subtenant is a Prohibited Entity. Tenant shall not publish or otherwise
disseminate any written advertising material in connection with any proposed
assignment or sublease of all or any portion of the Leased Premises (the
"Advertising") without Landlord's prior written approval of the same, which
approval shall not be unreasonably withheld; provided, however, that no
Advertising shall contain any reference to the price to be charged in connection
with any proposed assignment or sublease.
-8-
12.02 For
the
purposes of this Lease, the following terms shall have the following
meanings:
(a) Affiliate
shall mean (i) any person or entity which, directly or indirectly, controls
Tenant or is controlled by Tenant or is under common control with Tenant, (ii)
any successor to Tenant by merger, consolidation or other operation of law,
(iii) any person or entity to whom all or substantially all of the assets of
Tenant are conveyed, or (iv) any person or entity purchasing the business which
Tenant conducts at the Leased Premises.
(b) "Prohibited
Entity", unless otherwise agreed in writing by Landlord, shall mean (i) a
governmental or a governmental subdivision, instrumentality or agency, (ii)
a
school, college or university, (iii) an employment, recruitment or temporary
help service or agency, (iv) a collection agency, (v) any entity or an affiliate
thereof which has previously defaulted in the performance of its obligations
under a lease concerning any portion of the Building, (vi) any tenant or
subtenant of the Building, or (vii) any person or entity or any of their
affiliates, with whom Landlord, or any affiliate of Landlord, has negotiated
to
lease space in the Building within the six month period preceding Tenant's
request for an assignment or sublease. Tenant further agrees that it shall
not
(1) solicit offers for or negotiate to assign the Lease or to sublet any portion
of the Leased Premises to a Prohibited Entity; or, (2) permit any announcement
or communication to be made to a Prohibited Entity (including, but not limited
to the delivery of any Advertising) indicating that the Lease is available
for
assignment or any portion of the Leased Premises is available for
subletting.
12.03 If
Tenant
requests Landlord's consent to an assignment of this Lease or to a subletting
of
the whole or any part of the Leased Premises to a Non-Affiliate, Tenant shall
submit to Landlord a written statement, including, without limitation, the
name
of the proposed assignee or subtenant, a description of the terms and conditions
of the proposed assignment or sublease, including the amount of rent Tenant
will
be charging the proposed assignee or subtenant, and such information as to
the
nature of its business and its financial responsibility and standing as Landlord
may reasonably require, and the effective date of the proposed assignment.
Upon
receipt of such request and information from Tenant, Landlord shall have the
right exercisable by notice in writing within fourteen (14) days after such
receipt to cancel and terminate this Lease if the request is to assign this
Lease or to sublet all of the Leased Premises or, if the request is to assign
or
sublet a portion of the Leased Premises to cancel and terminate the Lease with
respect to such portion, in each case as of the date set forth in Landlord's
notice of exercise of such right, which shall be neither less than sixty (60)
nor more than one hundred and twenty (120) days following the giving of such
notice. If Landlord shall exercise such right Tenant shall surrender possession
of the entire Leased Premises or the portion which is the subject of the right,
as the case may be, on the date set forth in such notice in accordance with
the
provisions of this Lease relating to surrender of the Leased Premises at the
expiration of the Term. If this Lease shall be cancelled as to a portion of
the
Leased Premises only, the Rent payable by the Tenant under this Lease shall
be
abated proportionately. Tenant shall notify Landlord in writing of any
subletting or assignment to an Affiliate, Tenant shall submit to Landlord a
statement containing the name, address and affiliation of the proposed subtenant
or assignee to the Tenant, the terms of the proposed sublease or assignment
and
financial and other information with respect to the proposed assignee or
subtenant as Landlord may reasonably request.
-9-
12.04 If
the
Tenant is a corporation or if this Lease with the consent of the Landlord as
aforesaid is assigned to a corporation, and if any time during the Term hereof,
any part or all of its corporate shares or voting rights of shareholders shall
be transferred by sale, assignment, bequest, inheritance, trust, operation
of
law or other disposition, or shares be issued so as to result in a change in
the
control of said corporation by reason of ownership of greater than fifty percent
(50%) of the voting shares of the corporation or otherwise, then and so often
as
such a change of control shall occur, the Tenant shall notify the Landlord
in
writing of such changes and the Landlord shall have the right to terminate
this
Lease and the Term, at any time after such change of control by termination,
provided such corporation is controlled by a Non-Affiliate. Once each Calendar
Year (as hereinafter defined), the Tenant shall, upon request of the Landlord,
make available to the Landlord for inspection or copying or both, all books
and
records of the Tenant which, alone or with other data, show the applicability
or
inapplicability of this Section 12.04. If any shareholder of the Tenant shall,
upon request of the Landlord fail or refuse to furnish to the Landlord any
data
verified by the affidavit of such shareholder or other credible person, which
data, alone or with other data, show the applicability of Section 12.04, then
the Landlord may terminate this Lease on sixty (60) day's notice as aforesaid.
This Section 12.04 shall not apply to the Tenant if on and from the date of
this
Lease the control of the Tenant is represented by shares listed on a national
stock exchange or the NASDAQ Quotation System.
12.05 Contemporaneously
with any request or proposal by Tenant to sublet or assign any part of this
Lease, Tenant shall pay all costs, including reasonable attorneys' fees,
incurred by Landlord in connection with Landlord's investigation of any
financial or other information of the proposed assignee or subtenant. The
payment of such costs shall not obligate Landlord in any way to consent to
any
proposed assignment or subletting nor shall the amount of costs paid by Tenant
be applied or used as a set-off to any amounts due or to become due by Tenant
to
Landlord.
12.06 If
Landlord fails to exercise its termination right and its right to withhold
its
consent as set forth in the preceding sections of this Article 12, Tenant shall
pay to Landlord fifty percent (50%) of all profit derived by Tenant from the
assignment or sublease ("Sublease Profit"). Tenant shall not be required to
pay
any Sublease Profit derived by Tenant from an assignment or sublease with an
Affiliate. In determining Sublease Profit Tenant shall only be permitted to
deduct (i) leasing commissions and brokerage fees paid by Tenant, (ii) cost
and
expense of the construction of public corridors, (iii) reasonable advertising
expenses, (iv) reasonable attorneys' fees incurred in connection with the
preparation of such sublease or assignment, (v) the cost of tenant improvements
to the Leased Premises and other tenant incentives (e.g., moving allowances
and
architectural or design allowance) and (vi) any other reasonable out-of-pocket
costs paid by Tenant and which are directly attributable to such assignment
or
sublease. Whenever requested by Landlord, Tenant shall furnish Landlord with
a
statement, certified by Tenant's chief financial officer as true, correct and
complete, setting forth in detail the computation of profit (which computation
shall be based upon generally accepted accounting principles), and Landlord,
or
its representatives, shall have a right of access to the books, records and
papers of Tenant in relation thereto, and to make copies thereof. Such
percentage of Tenant's profits shall be paid to Landlord promptly by Tenant
upon
Tenant's receipt from time to time of periodic payments from such assignee
or
subtenant or at such other earlier time as Tenant shall realize its profits
from
such assignment or sublease.
12.07 Notwithstanding
anything to the contrary contained herein, if Tenant, as a debtor-in-possession
(the"DIP"), or a trustee for the estate in bankruptcy of Tenant (the "Trustee"),
assumes this Lease and proposes to assign this Lease, or sublet the Leased
Premises (or any portion thereof), pursuant to the provisions of the Federal
Bankruptcy Code, 11 U.S.C. Sections 101 et seq.
(the
"Bankruptcy Code") to any person, partnership, corporation or other entity
(the
"Proposed Assignee"), then such assumption of this Lease and any such assignment
or sublease shall be subject to all of the following:
(a) If
the
rental agreed upon between the DIP or the Trustee, as the case may be, and
the
Proposed Assignee under any proposed assignment or sublease of the Premises
(or
any part thereof) is greater than the rental rate that Tenant must pay Landlord
hereunder for that portion of the Leased Premises that is subject to such
proposed assignment or sublease, or if any consideration shall be received
by
the DIP or the Trustee, as the case may be, in connection with any such proposed
assignment or sublease, then all such excess rental or such consideration shall
be paid or delivered to Landlord, and shall not constitute property of the
DIP,
the Trustee, or of the estate of Tenant, as the case may be, within the meaning
of the Bankruptcy Code; and
-10-
(b) Any
proposed assignment or sublease of this Lease by the DIP or the Trustee, as
the
case may be, pursuant to provisions of the Bankruptcy Code shall provide
adequate assurance of future performance under this Lease by the Proposed
Assignee, which adequate assurance shall include, as a minimum, the following:
(i) any Proposed Assignee of the Lease shall deliver to Landlord a security
deposit in an amount equal to at least three (3) monthly installments of Base
Rent accruing under this Lease; (ii) any Proposed Assignee of the Lease shall
provide to Landlord an unaudited financial statement, certified to be accurate
by such Proposed Assignee or by an officer, director or partner thereof and
dated no later than six (6) months prior to the effective date of such proposed
assignment or sublease, which financial statement shall show, the Proposed
Assignee to have a net worth equal to at least the Rent that shall accrue under
this Lease for the next year of the Term; (iii) any Proposed Assignee shall
pay
all Rent not previously paid under this Lease including all payments which
have
been suspended, mitigated, nullified or reduced to a claim of any kind against
Tenant or the Tenant's property, by operation of law or otherwise; and (iv)
any
Proposed Assignee shall assume Tenant's obligation to pay Landlord's attorneys'
fees pursuant to the provisions of this Lease.
This
Section 12.07 shall not apply to any assignment or sublease other than pursuant
to the provisions of the Bankruptcy Code, nor shall it in any way limit
Landlord's right to damages or other relief in a proceeding under the Bankruptcy
Code.
13. RULES
AND REGULATIONS
13.01 Tenant
and employees and all persons visiting or doing business with the Tenant in
the
Leased Premises shall be bound by and shall observe the reasonable Rules and
Regulations promulgated from time to time by the Landlord relating to the
Building or the Leased Premises of which notice in writing shall be given to
the
Tenant and all such rules and regulations shall be deemed to be incorporated
into and be a part of this Lease. Tenant acknowledges that attached hereto
as
Exhibit
B
and
incorporated herein by this reference are the current Rules and Regulations
promulgated by the Landlord for the Building. Any default in the performance
or
observance of such rules and regulations shall be a default hereunder and
Landlord shall have all remedies provided for in this Lease in the event of
default by Tenant. Landlord, however, shall not be responsible to Tenant for
nonobservance by any other tenant or person of such rules or regulations. In
the
event of any conflict between the provisions of the Lease and the rules or
regulations, the provisions of the Lease shall prevail.
14. USE
OF LEASED PREMISES
14.01 Except
as
expressly permitted by prior written consent of the Landlord, the Leased
Premises shall not be used other than for general business office purposes.
All
use of the Leased Premises shall comply with the terms of this Lease and all
applicable laws, ordinances, regulations or other governmental ordinances from
time to time in existence, including but not limited to the Skyline Urban
Renewal Plan and the deed restriction imposed thereunder by the Denver Urban
Renewal Authority.
15. TENANT'S
INSURANCE
15.01 (a) Tenant
shall, during its occupancy of the Leased Premises and during the entire Term
hereof, at its sole cost and expense, obtain, maintain and keep in full force
and effect, and with the Tenant, the Landlord and the mortgagees of the Landlord
named as beneficiaries therein as their respective interests may appear, the
following types and kinds of insurance:
(i) "All
Risk" or "Special Coverage Form" insurance upon property of every description
and kind owned by the Tenant and located in the Building or for which the
Tenant, is legally liable or installed by or on behalf of the Tenant, including,
without limitation, furniture, fittings, installations, alterations, additions,
partitions, fixtures and anything in the nature of a leasehold improvement
in an
amount not less than eighty percent (80%) of the full replacement cost thereof,
and in the event that there shall be a dispute as to the amount which comprises
full replacement cost, the decision of the Landlord or the mortgagees of the
Landlord shall be conclusive.
-11-
(ii) Public
Liability coverage with respect to the Leased Premises and Tenant's use of
any
part of the Building which coverage shall include the business operations
conducted by the Tenant and any other persons on the Leased Premises. Insurance
shall be a Comprehensive-General Liability form (including Contractual
Liability) in an amount not less than $1,000,000.00 per person and $3,000,000.00
per occurrence whether involving personal injury liability, (or death resulting
therefrom) or property damage liability, or a combination thereof with a minimum
aggregate limit of $3,000,000.00 or such higher limits as the Landlord may
reasonably require from time to time.
(iii) Any
other
form or forms of insurance as the Tenant or the Landlord or the mortgagees
of
the Landlord may reasonably require from time to time in form, in amounts and
for insurance risks against which a prudent tenant would protect
itself.
(iv) Business
interruption insurance in such amounts as will reimburse the Tenant for direct
or indirect loss of earnings attributable to all perils commonly insured against
by prudent tenants or attributable to prevention of access to the Leased
Premises or to the Building as a result of such perils.
(v) If
Tenant
performs any work on the Leased Premises, prior to the commencement of any
such
work, Tenant shall deliver to Landlord certificates issued by insurance
companies qualified to do business in the State of Colorado, evidencing that
workmen's compensation and public liability insurance and property damage
insurance, all in the amounts satisfactory to Landlord, are in force and effect
and maintained by all contractors and subcontractors engaged by Tenant to
perform such work.
(b) All
property damage policies written on behalf of the Tenant shall contain a waiver
of any subrogation rights which the Tenant's insurers may have against the
Landlord and against those for whom the Landlord is, in law, responsible whether
any such damage is caused by the act, omission or fault of the Landlord or
by
those for whom the Landlord is, in law, responsible.
(c) All
policies shall be taken out with insurers acceptable to the Landlord and in
form
satisfactory from time to time to the Landlord. All policies shall name Landlord
as an additional insured. The Tenant agrees that certificates of insurance,
or,
if required by the Landlord or the mortgagees of the Landlord, certified copies
of each such insurance policies will be delivered to the Landlord as soon as
practicable after the placing of the required insurance, but in no event later
than ten (10) days after Tenant takes possession of all or any part of the
Leased Premises. All policies shall contain an undertaking by the insurers
to
notify the Landlord and the mortgagees of the Landlord in writing not less
than
thirty (30) days prior to any material change, cancellation or other termination
thereof.
(d) The
Tenant covenants and agrees that in the event of damage or destruction to the
leasehold improvements in the Leased Premises covered by insurance required
to
be taken out by the Tenant pursuant to subsection 15.01(a)(i), the Tenant will
use the proceeds of such insurance for the purpose of repairing or restoring
such leasehold improvements. Tenant shall be permitted to request modifications
to the Leased Premises subject to Landlord's consent (which consent shall not
be
unreasonably withheld, provided such modifications do not increase the cost
nor
delay the completion of repairing or restoring the Leased Premises). In the
event of damage to or destruction of the Building entitling the Landlord to
terminate this Lease pursuant to Section 31.02 hereof, then, if the Leased
Premises have also been damaged, the Tenant will pay to the Landlord all of
its
insurance proceeds relating to the leasehold improvements in the Leased Premises
and if the Leased Premises have not been damaged, the Tenant will deliver to
the
Landlord, in accordance with the provisions of this Lease, the leasehold
improvements and the Leased Premises.
-12-
16. CANCELLATION
OF INSURANCE
16.01 If
any
insurance policy upon the Building or any part thereof shall be canceled or
cancellation shall be threatened or the coverage thereunder reduced or
threatened to be reduced or the premium therefor increased, in any way by reason
of the use or occupation of the Leased Premises or any part thereof by the
Tenant or by any assignee or subtenant of the Tenant or by anyone permitted
by
the Tenant to be upon the Leased Premises and, if the Tenant fails to remedy
the
condition giving rise to cancellation, threatened cancellation, reduction of
coverage, or increase in premium within forty-eight (48) hours after notice,
the
Landlord may, at its option, enter upon the Leased Premises and attempt to
remedy such condition or demand payment of the amount of increased premium
by
Tenant and the Tenant shall forthwith pay the cost thereof to the Landlord
as
Additional Rent. The Landlord shall not be liable for any damage or injury
caused to any property of the Tenant or of other located on the Leased Premises
as a result of such entry. In the event that the Landlord shall be unable to
remedy such condition, then Landlord shall have all of the remedies provided
for
in the Lease in the event of a default by Tenant. Notwithstanding the foregoing
provisions of this Section 16.01, if Tenant fails to remedy as aforesaid, Tenant
shall be in default of its obligation hereunder and Landlord shall have no
obligation to attempt to remedy.
17. OBSERVANCE
OF LAW
17.01 Tenant
shall comply with all provisions of law, including, without limitation, federal,
state, county and city laws, ordinances and regulations and any other
governmental, quasi-governmental or municipal regulations which relate to the
partitioning, equipment operation, alteration, occupancy and use of the Leased
Premises, and to the making of any repairs, replacements, alterations,
additions, changes, substitutions or improvements of or to the Leased Premises.
Moreover, the Tenant shall comply with all police, fire, and sanitary
regulations imposed by any federal, state, county or municipal authorities,
or
made by insurance underwriters, and to observe and obey all governmental and
municipal regulations and other requirements governing the conduct of any
business conducted in the Leased Premises. Notwithstanding the foregoing, it
shall be the Landlord's sole cost (subject to the provisions of Article 54)
and
responsibility to comply with federal, state, county and city legislative
enactments, building codes and any other governmental or municipal which relate
to the Building insofar as they may require changes of a structural nature
in
the Building, provided, nevertheless, that such changes shall be the
responsibility of the Tenant if there are changes required to be made in the
Tenant's improvements or partitioning whether such changes are required by
reason of the nature of the use or improvements contemplated or made by the
Tenant.
18. WASTE
AND NUISANCE
18.01 Tenant
shall not commit, suffer or permit any waste or damage or disfiguration or
injury to the Leased Premises or common areas in the Building or the fixtures
and equipment located therein or thereon, or permit or suffer any overloading
of
the floors thereof and shall not place therein any safe, heavy business
machinery, computers, data processing machines, or other heavy items without
first obtaining the consent in writing of the Landlord (which consent shall
not
be unreasonably withheld, conditioned or delayed) and, if requested, by
Landlord's superintending architect, and not use or permit to be used any part
of the Leased Premises for any dangerous, noxious or offensive trade or
business, and shall not cause or permit any nuisance, noise or action in, at
or
on the Leased Premises.
19. ENTRY
BY LANDLORD
19.01 Tenant
agrees to and shall permit the Landlord, its servants or agents to enter upon
the Leased Premises at any time upon reasonable oral notice to Tenant (except
in
the event of an emergency in which event no notice shall be necessary) making
repairs, alterations or improvements to the Leased Premises or to the Building,
or for the purpose of having access to the underfloor or ceiling ducts, if
any,
or to the access panels to mechanical shafts (which the Tenant agrees not to
obstruct), and the Tenant shall not be entitled to compensation for any
inconvenience, nuisance or discomfort occasioned thereby. The Landlord, or
its
servants or agents may at any time and from time to time enter upon the Leased
Premises to remove any article or remedy any condition which in the opinion
of
the Landlord, reasonably arrived at, would be likely to lead to cancellation
of
any policy of insurance hereof, and such entry by the Landlord shall not be
deemed to be re-entry under subsection 36.01(b) hereof. The Landlord shall
have
the right to enter the Leased Premises in order to check, calibrate, adjust
and
balance controls and other parts of the heating, ventilation and climate control
system at any time. The Landlord shall attempt to proceed hereunder in such
manner as to minimize interference with the Tenant's use and enjoyment of the
Leased Premises.
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20. INDEMNIFICATION
OF LANDLORD
20.01 Tenant
shall indemnify the Landlord and save it harmless from and against any and
all
loss (including loss of rentals payable by the Tenant or other tenants in the
event of loss either directly or indirectly caused by commission or omission
of
Tenant), claims, actions, damages, liability and expenses in connection with
loss of life, personal injury and damage to property arising from any occurrence
in, upon or at the Leased Premises or any part thereof, or occasioned wholly
or
in part by any act or omission of the Tenant, its agents, or contractors,
employees, servants, licensees, or concessionaires or invitees or by anyone
permitted to be on the Leased Premises by the Tenant. In case the Landlord
shall, without fault on its part, be made a party to any litigation commenced
by
or against the Tenant, then the Tenant shall protect and hold the Landlord
harmless and shall pay all costs, expenses and reasonable attorneys' fees
incurred or paid by the Landlord in connection with such litigation.
20.02 Unless
caused by the gross negligence of Landlord, Tenant shall neither hold nor
attempt to hold Landlord liable for any injury or damage, either proximate
or
remote, occurring through or caused by any repairs, alteration, injury or
accident to the Leased Premises, to adjacent premises or other parts of the
Building not herein demised, or for any injury or damage occasioned by gas,
smoke, rain, snow, wind, ice, hail, lightning, earthquake, war, civil disorder,
strike, defective electrical wiring, or the breaking or stoppage of the plumbing
or sewage upon or in the Building or adjacent premises, whether said breaking
or
stoppage results from freezing or otherwise.
21. EXHIBITING
PREMISES
21.01 Tenant
shall permit the Landlord or its agents to exhibit and show the Leased Premises
to prospective tenants during Normal Business Hours of the last twelve (12)
months of the Term or any renewal thereof.
22. ALTERATIONS
22.01 Tenant
shall not, without the prior written consent of Landlord (which consent shall
not be unreasonably withheld or conditioned, provided the alterations,
improvements and/or additions (i) are not visible from outside of the Leased
Premises, and (ii) do not require the modification of the electrical, plumbing
or mechanical systems of the Building), make any alterations, improvements
or
additions to the Leased Premises. Any such consented to alterations,
improvements or additions to the Leased Premises shall be completed at the
sole
cost and expense of Tenant, unless otherwise agreed to by Landlord as part
of
any consent thereto. If Landlord consents to any alterations, improvements
or
additions, it may impose such conditions with respect thereto as Landlord deems
appropriate, including, without limitation, Landlord's approval of plans and
specifications for the work (but Tenant shall not be entitled to rely upon
such
approval as evidencing that the plans and specifications are proper in any
respect), use of Landlord's approved contractors to perform the work, insurance
against liabilities which may arise out of such work, permits necessary for
such
work and as-built drawings upon completion of such work, and the furnishing
to
Landlord of such security as is determined by Landlord to be appropriate for
the
proper completion or such work and its completion free of mechanic's,
materialmen's and similar liens or claims thereof. All work done by Tenant
or
its contractors shall be done in a first-class workmanlike manner, using only
good grades of materials and without disturbing other tenants and shall comply
with all insurance requirements and all applicable laws or ordinances and rules
and regulations of governmental departments or agencies. Before proceeding
with
any such work, Tenant shall reimburse Landlord for Landlord's actual costs
of
Landlord's architects' review of Tenant's plans and specifications. Any work
performed by or for Tenant shall be performed by competent workmen whose labor
union affiliations are compatible with those of the workmen who may be employed
in the Building by Landlord, its contractors or subcontractors, and Landlord
shall have the right, at its option, and at no additional cost to Tenant, to
directly supervise the work, which supervision shall be for the protection
of
Landlord's interest only.
-14-
22.02 If
Tenant
requests that Landlord, through its contractors, perform the work associated
with any alteration, improvement or addition to the Leased Premises, and
Landlord agrees, in its sole discretion, to perform such work, Landlord shall
provide Tenant with a Tenant Work Order describing the work to be performed
by
Landlord and stating the total cost to Tenant for the performance of the work.
Upon Tenant's acceptance of the Tenant Work Order, the total cost for the work
stated therein shall become a charge or money obligation herein required to
be
paid by Tenant and subject to the Default and Remedies provisions of this Lease
set forth in Sections 35.01 through 36.05, inclusive. All work performed by
Landlord under this Section 22.02 shall be subject to the provisions of Section
22.01.
22.03 All
alterations, additions or improvements made by Tenant and all fixtures attached
to the Leased Premises shall become the property of Landlord and remain at
the
Leased Premises or, at Landlord's option (to be exercised at the time Landlord
grants its approval to such alterations, additions or improvements), any or
all
of the foregoing shall be removed at the cost of Tenant before the expiration
or
sooner termination of this Lease and in such event Tenant shall repair all
damage to the Leased Premises caused by the installation and/or removal thereof.
Tenant shall not permit or suffer any signs advertisements or notices to be
displayed, inscribed upon or affixed on any part of the outside or inside of
the
Leased Premises, or in the Building, except on the entrance doors of the Leased
Premises, and then only of such size, color and style as Landlord may approve.
Landlord shall have the right to remove unauthorized signs at Tenant's
expense.
23. GLASS
23.01 Landlord
shall pay on demand the cost of replacement with as good quality and size of
any
glass broken on the Leased Premises, including outside windows and doors of
the
perimeter of the Leased Premises (including perimeter windows in the exterior
walls) during the continuance of this Lease, unless the glass shall be broken
by
the Tenant, its servants, employees or agents acting on its behalf, in which
event Tenant shall pay on demand the cost of replacement.
24. SIGNS
AND ADVERTISING
24.01 Tenant
shall not install, paint, display, inscribe, place or affix any sign, picture,
advertisements, notice, lettering or direction on any part of the outside of
the
Building or in the interior of the Leased Premises (if visible from outside
the
Leased Premises) or other portion of the Building. The Landlord will prescribe
a
uniform pattern of identification signs for tenants to be placed on the outside
of the doors leading into the Leased Premises and other than such identification
signs, Tenant shall not install, paint, display, inscribe, place or affix,
or
otherwise attach, any sign, picture, advertisement, notice, lettering or
direction on the outside of the Leased Premises for exterior view without the
written consent of the Landlord.
25. NAME
OF BUILDING
25.01 Tenant
shall not refer to the Building by a name other than that designated from time
to time by the Landlord, nor to use such name for any purpose other than that
of
the business address of Tenant provided that the Tenant may use the street
address of the Building assigned to it by the Landlord instead of the name
of
the Building.
26. SUBORDINATION
AND ATTORNMENT
26.01 This
Lease is subject to and subordinate to all mortgages, deeds of trust, or other
security instruments (including any deed of trust and mortgage securing bonds
and all indentures supplemental thereto), whether now in existence or
subsequently placed on the Real Property and to all underlying, superior, ground
or land leases, master leases or primary leases (all of which are hereinafter
referred to collectively as "Mortgage") which may now or hereafter encumber
the
Real Property of which the Leased Premises are a part (the mortgagee under
any
such Mortgage or the lessor under any such lease is referred to herein as
"Landlord's Mortgagee"), and to all or any declaration of covenants regarding
maintenance or use of any areas contained in any portion of the Building ,
and
all advances, renewals, modifications, consolidations, replacements and
extensions thereof of such mortgages and leases and declaration of covenants
which may now or hereafter affect the Leased Premises or any part thereof.
This
clause shall be self-operative and no further instrument of subordination shall
be required in order for the same to be effective. Notwithstanding the
foregoing, Tenant hereby appoints the Landlord, the agent, or attorney of the
Tenant coupled with an interest for the purpose of executing any acknowledgment
or agreement required by Landlord's Mortgagee. Tenant, hereby attorns to all
successor owners of the Building, whether or not such ownership is acquired
as a
result of a sale, through foreclosure of a Mortgage or otherwise. If Landlord's
Mortgagee shall elect to have this Lease superior to the lien of its Mortgage,
and shall give written notice thereof to Tenant, this Lease shall be deemed
prior to such Mortgage, whether this Lease is dated prior or subsequent to
the
date of said Mortgage or the date of recording thereof. With respect to any
Mortgage first encumbering the Building subsequent to the Commencement Date
of
the Lease, upon Tenant's request, Landlord will use its good faith efforts
to
cause Landlord's Mortgagee to agree that so long as Tenant is not in default
of
its obligations under the Lease, the Lease will not be terminated and Tenant's
possession of the Leased Premises will not be disturbed by the termination
or
foreclosure, or proceeds for enforcement, of such Mortgage.
-15-
27. ACCEPTANCE
OF PREMISES
27.01 Subject
to Landlord's obligation to complete the Landlord's Work (hereinafter defined),
Tenant accepts the Leased Premises “AS IS, WHERE IS AND WITH ALL FAULTS”. Tenant
acknowledges that it will examine the Leased Premises before taking possession
hereunder and agrees that upon so taking possession hereunder Tenant shall
be
conclusively deemed to have examined the Leased Premises and that the same
were
in good order and such taking of possession shall be conclusive evidence as
against Tenant that at the time of such possession the Leased Premises were
in
good order and satisfactory condition (subject to latent defects), and shall
be
acknowledgment of satisfactory completion of any fix-up or remodeling, as the
case may be which Landlord has agreed to perform.
27.02 Tenant
agrees that there is no promise, representation or undertaking by or binding
upon the Landlord with respect to any alteration, remodeling or redecorating
of
or installation of equipment or fixtures in the Leased Premises, except such,
if
any, as are expressly set forth in this Lease.
28. ESTOPPEL
CERTIFICATES
28.01 Tenant
agrees that it shall at any time and from time to time upon not less than ten
(10) days' prior notice, execute and deliver to the Landlord a statement in
writing certifying that this Lease is unmodified and in full force and effect
(or, if modified, stating the modifications and that the same is in full force
and effect as modified), the amount of the annual rental then being paid
hereunder, the dates to which the same, by installment or otherwise, and other
charges hereunder have been paid, and whether or not there is any existing
default on the part of the Landlord of which the Tenant has knowledge and such
other information reasonably required by Landlord, Landlord's Mortgagee, and
the
City and County of Denver.
29. FIXTURES
29.01 Any
or
all installations, alterations, additions, partitions and fixtures other than
Tenant's trade fixtures in or upon the Leased Premises, whether placed there
by
the Tenant or the Landlord, shall, immediately upon such placement, become
the
property of the Landlord without compensation therefor to the Tenant.
Notwithstanding anything herein contained, the Landlord shall be under no
obligation to repair, maintain or insure such installations, alterations,
additions, partitions and fixtures or anything in the nature of a leasehold
improvement made or installed by or on behalf of the Tenant. The Landlord may
elect that any or all installations made or installed by or on behalf of the
Tenant (other than the Landlord's Work) be removed at the end of the Lease
Term
and it shall be the Tenant's obligation to restore the Leased Premises to the
conditions they were in previous to such alterations, installations, partitions
and fixtures. Such removal and restoration shall be at the sole expense of
the
Tenant.
30. LANDLORD'S
INSURANCE
30.01 The
Landlord covenants and agrees that throughout the Term it will insure the
Building (excluding foundations and excavations) and the machinery, boilers
and
equipment contained therein owned by the Landlord (excluding any property with
respect to which the Tenant is obliged to insure pursuant to the provisions
of
Section 15.01 hereof) against damage by fire and extended perils coverage in
such reasonable amounts as would be carried by a prudent owner of a similar
property in the same locale. The Landlord will also, throughout the Term, carry
public liability and property damage insurance with respect to the operation
of
the Building in reasonable amounts as would be carried by a prudent owner of
a
similar property in the same locale. The Landlord may, but shall not be obliged
to, take out and carry any other form or forms of insurance as it or Landlord's
Mortgagee may reasonably determine advisable. Notwithstanding any contribution
by the Tenant to the cost of insurance premiums, as provided herein, the Tenant
acknowledges that it has no right to receive any proceeds from any such
insurance policies carried by the Landlord and that such insurance will be
for
the sole benefit of Landlord with no coverage for Tenant for any risk insured
against.
-16-
All
property damage policies written on behalf of the Landlord shall contain a
waiver of any subrogation rights which the Landlord's insurers may have against
the Tenant and against those for whom the Tenant is, in law, responsible whether
any such damage is caused by the act, omission or fault of the Tenant or by
those for whom the Tenant is, in law, responsible.
31. FIRES,
ETC.
31.01 In
the
event of damage to the Leased Premises by fire, or other casualty, or damage
resulting from structural defect, or damage by other casualty against which
the
Landlord is insured, and which is not caused by the negligence of Tenant, rent
shall xxxxx in the proportion that the unusable portion of the Leased Premises
as determined by Landlord is of the Total Rentable Area of the Leased Premises
until the Leased Premises are rebuilt; and the Landlord agrees that it will
with
reasonable diligence repair such damage under the terms hereof, unless this
Lease is terminated as hereinafter provided in Sections 31.02 and
31.03.
31.02 If
the
Leased Premises are damaged or destroyed by any cause whatsoever, and if, in
the
reasonable opinion of the Landlord, the Leased Premises cannot be rebuilt or
made fit for the purposes of the Tenant within ninety (90) days of the damage
or
destruction, the Landlord instead of rebuilding or making the Leased Premises
fit for the Tenant, may at its option, terminate this Lease by giving to the
Tenant, within thirty (30) days after such damage or destruction, notice of
termination, and thereupon, rent and any other payments for which the Tenant
is
liable under this Lease shall be apportioned and paid to the date of such damage
and the Tenant shall immediately deliver up possession of the Leased Premises
to
the Landlord. Provided, however, that those provisions of this Lease which
are
designated to cover matters of termination and thereafter shall survive the
termination hereof. In the event Landlord does not elect to terminate this
Lease
pursuant to this Section 31.02 and does not complete repairs or restoration
within 180 days after such damage, except for delays of up to sixty (60) days
caused by matters beyond Landlord's reasonable control, Tenant may terminate
this Lease upon thirty (30) days prior written notice to Landlord.
31.03 Irrespective
of whether the Leased Premises are damaged or destroyed, in the event that
fifty
percent (50%) or more of the Total Rentable Area of the Building is damaged
or
destroyed or made unusable by any cause whatsoever, and if, in the reasonable
opinion of the Landlord the said Total Rentable Area of the Building cannot
be
rebuilt or made fit for the purpose of the tenants of such space within one
hundred and eighty (180) days after the damage or destruction, the Landlord
may,
at its option, terminate this Lease by giving to the Tenant within thirty (30)
days after such damage notice of termination requiring it to vacate the Leased
Premises sixty (60) days after delivery of the notice of termination and
thereupon, rent and any other payments for which the Tenant is liable under
this
Lease shall be apportioned and paid to the date on which possession is
relinquished and the Tenant shall deliver up possession of the Leased Premises
to the Landlord in accordance with such notice of termination.
31.04 If
the
fire or other casualty causing damage to the Leased Premises or other parts
of
the Building shall have been caused by the negligence or misconduct of Tenant,
its agents, servants, or employees, or by any other persons entering the
Building under express or implied invitation of Tenant and the cost of such
repair is not otherwise covered by Landlord's insurance, such damage shall
be
repaired by Landlord at the expense of Tenant (including, without limitation,
the cost of any deductibles or insurance); provided, however, that the expense
of Tenant shall not exceed the greater of (i) the amount of Tenant's insurance
coverage, or (ii) the amount of Tenant's insurance coverage required under
this
Lease.
-17-
32. CONDEMNATION
32.01 If
more
than twenty percent (20%) of the Total Rentable Area of the Leased Premises
shall be taken by eminent domain, or by conveyance in lieu thereof, and if
such
taking interferes substantially with the Tenant's use of the Leased Premises,
then this Lease, at the option of either party evidenced by notice to the other
given within thirty (30) days from the taking or conveyance, shall forthwith
cease and terminate entirely. In the event of such termination of this Lease,
then rental shall be due and payable to the actual date of such termination.
If
less than twenty percent (20%) of the Total Rentable Area of the Leased Premises
shall be taken, or if more than twenty percent (20%) of the Leased Premises
is
taken and neither party terminates this Lease, this Lease shall cease and
terminate as to that portion of the Leased Premises so taken as of the date
of
taking, and the rental thereafter payable under this Lease shall be abated
pro
rata from the date of such taking in an amount by which that portion of the
Total Rentable Area of the Leased Premises prior to such taking. If any part
of
the Building or Real Property shall be taken by eminent domain, or by conveyance
in lieu thereof, and if such taking substantially interferes with the Landlord's
ownership or use of the Building, the Landlord, at its option, may terminate
this lease as of the date of such taking. In any event, the Landlord shall
receive the entire award for the land and improvements taken by condemnation
and
the Tenant shall not be entitled to any portion thereof.
33. LOSS
AND DAMAGE
33.01 The
Landlord shall not be liable or responsible in any way for:
(a) any
death
or injury arising from or out of any occurrence in, upon or at the Building
or
for damage to property of the Tenant or others located on the Leased Premises,
nor shall it be responsible in the event of damage to any property of the Tenant
or others from any cause whatsoever, unless such damage, loss, injury or death
results from the gross negligence or willful misconduct of the Landlord, its
agents, servants, or employees or others for whom it may be responsible within
the scope of their employ. Without limiting the generality of the foregoing,
the
Landlord shall not be liable for any injury or damage to persons or property
resulting from fire, explosion, falling plaster, steam, gas, electricity, water,
rain, snow or leaks from any part of the Leased Premises or from the pipes,
appliances, or plumbing works, roof, street, or subsurface of any floor or
ceiling or from any other place or because of dampness or climatic conditions
from any other cause of whatsoever kind. The Landlord shall not be liable for
any damage whatsoever caused by any other tenant or persons in the Building,
or
by an occupant of adjacent property thereto, or the public, or construction
of
any private, public or quasi-public work. All property of the Tenant kept or
stored on the Leased Premises shall be kept or stored at the risk of the Tenant
only and the Tenant shall indemnify the Landlord in the event of any claims
arising out of damages to the same, including any subrogation claim by the
Tenant's insurers;
(b) any
act
or omission (including theft, malfeasance or negligence) on the part of any
agent, contractor or person from time to time employed by Landlord to perform
janitor services or security services, or repairs or maintenance services,
in or
about the Leased Premises of the Building;
(c) loss
or
damage, however caused, to money, securities, negotiable instruments, papers
or
other valuables of the Tenant; or
(d) any
punitive damages or consequential damages.
-18-
34. DELAYS
34.01 Whenever
and to the extent that the Landlord shall be unable to fulfill, or shall be
delayed or restricted in the fulfillment of any obligation hereunder in respect
to the supply or provision of any service or utility or the doing of any work
or
the making of any repairs by reason of being unable to obtain the material,
goods, equipment, service, utility or labor required to enable it to fulfill
such obligation or by reason of any statute, law or any regulation or order
passed or made pursuant thereto, or by reason of the order or direction of
any
administrator, controller or board, or any governmental department or officer
or
other authority, or by reason of not being able to obtain any permission or
authority required thereby, or by reason of any other cause beyond its control
whether of the foregoing character or not, the Landlord shall be entitled to
extend the time for fulfillment of such obligation by a time equal to the
duration of such delay or restriction, and the Tenant shall not be entitled
to
compensation for any inconvenience, nuisance or discomfort thereby occasioned,
except as provided in Section 7.03 hereof.
35. DEFAULT
35.01 Upon
the
happening of any one or more of the following events, Landlord may give notice
to Tenant stating that the Term of this Lease is terminated on a date and if
such notice shall be given, the Term of this Lease shall terminate on the date
so stated:
(a) The
failure of Tenant to timely and fully pay any installment of rent, or other
charge or money obligation herein required to be paid by Tenant. Provided the
first two (2) times Tenant fails to make timely payment of such amounts,
Landlord shall provide Tenant written notice and Tenant shall have five (5)
business days after receipt of such notice to cure the default, but after the
first two (2) such instances, failure to pay timely will be an immediate default
and Landlord shall have no obligation to give additional notice to Tenant or
grant any cure period.
(b) The
failure of Tenant to perform any one or more of its other covenants under this
Lease within ten (10) days after written notice to Tenant specifying the
covenant or covenants Tenant has not performed.
(c) The
making by Tenant of an assignment for the benefit of its creditors.
(d) The
levying of a writ of execution or attachment on or against the property of
Tenant if the same is not released or discharged within thirty (30) days
thereafter.
(e) The
instituting of proceedings in a court of competent jurisdiction for the
involuntary bankruptcy, arrangement, reorganization, liquidation or dissolution
of Tenant under the Federal Bankruptcy Code (as now or hereafter in effect)
or
any state bankruptcy or insolvency act, or for its adjudication as a bankrupt
or
insolvent, or for the appointment of a receiver of the property of Tenant,
and
said proceedings are not dismissed, or any receiver, trustee, or liquidator
appointed therein is not discharged within thirty (30) days after the
institution of said proceedings.
(f) The
instituting of proceedings for the voluntary bankruptcy arrangement,
reorganization, liquidation or dissolution of Tenant under the Federal
Bankruptcy Code (as now or hereafter in effect) or any state bankruptcy or
insolvency act or if Tenant shall otherwise take advantage of any state or
federal bankruptcy or insolvency act as a bankrupt or insolvent.
(g) The
doing, or permitting to be done, by Tenant of any act which creates a mechanic's
lien or claim therefor against the land or Building of which the Leased Premises
are a part of the same is not released or otherwise provided for by
indemnification satisfactory to Landlord within twenty (20) days
thereafter.
(h) The
abandonment or vacating of the Leased Premises for more than sixty (60)
days.
(i) The
failure to take possession of the Leased Premises on the term Commencement
Date.
Notwithstanding
any such termination, Tenant shall remain liable to Landlord as hereinafter
provided in Article 36 of this Lease.
35.02 No
condoning, excusing or overlooking by the Landlord of any default, breach or
non-observance by the Tenant at any time or times in respect of any covenants,
provisions or conditions herein contained shall operate as a waiver of the
Landlord's rights hereunder in respect of any continuing or subsequent default,
breach or non-observance, or so as to defeat or affect such continuing or
subsequent default or breach, and no waiver shall be inferred from or implied
by
anything done or omitted by the Landlord save only express waiver in writing.
All rights and remedies of the Landlord in this Lease contained shall be
cumulative and not alternative.
-19-
36. REMEDIES
OF LANDLORD
36.01 If
an
event of default set forth in Section 35.01 occurs, the Landlord shall have
the
following rights and remedies in addition to all other remedies, at law or
in
the equity, and none of the following, whether or not exercised by the Landlord,
shall preclude the exercise of any other right or remedy whether herein set
forth or existing at law or in equity:
(a) Landlord
shall have the right to terminate this Lease by giving the Tenant notice in
writing, and upon the giving of such notice, this Lease and the Term hereof
as
well as all the right, title and interest of the Tenant under this Lease shall
wholly cease and expire in the same manner and with the same force and effect
on
the date specified in such notice as if such date were the expiration date
of
the Term of this Lease, without the necessity of re-entry or any other act
on
the Landlord's part. Upon termination, the Tenant shall quit and surrender
to
Landlord the Leased Premises as set forth in Section 11.03. If this Lease is
so
terminated by Landlord, Landlord shall be entitled to recover from the Tenant
as
damages the worth at the time of such termination of the excess, if any, of
the
amount of rent reserved in this Lease for the balance of the term of this Lease
(which shall be calculated on the then current rent under this Lease) in excess
of the then reasonable rental value of the Leased Premises for the same period
plus all costs and expenses of Landlord caused by the Tenant's
default.
(b) Landlord
may, without demand, or notice, re-enter and take possession of the Leased
Premises or any part thereof, repossess the same and expel the Tenant and those
claiming through or under the Tenant, and remove the effects of any and all
such
persons (forcibly, if necessary) without being deemed guilty of any manner
of
trespass and without prejudice to any remedies for arrears of rent or preceding
breach of covenants. Should the Landlord elect to re-enter as provided in this
Section 36.01 or should the Landlord take possession pursuant to legal
proceedings or pursuant to any notice provided for by law, the Landlord may,
from time to time, without terminating this Lease, relet the Leased Premises
or
any part thereof for such other conditions as the Landlord may deem advisable
with the right to make alterations and repairs to the Leased Premises. No such
re-entry or repossession of the Leased Premises by the Landlord shall be
construed as an election on the Landlord's part to terminate this Lease unless
a
written notice of termination is given to the Tenant by the Landlord. No such
re-entry or repossession of the Leased Premises shall relieve the Tenant of
its
liability and obligation under this Lease, all of which shall survive such
re-entry or repossession. Upon the occurrence of such re-entry or repossession,
the Landlord shall be entitled to damages in the amount of the monthly rent,
and
any other sums, which would be payable hereunder if such re-entry or
repossession had not occurred, less the net proceeds, if any, of any reletting
of the Leased Premises after deducting all the Landlord's expenses in connection
with such reletting, including, but without limitation, all repossession costs,
brokerage commissions, legal expenses, attorney's fees, expenses of employees,
alteration costs and expenses of preparation for such reletting, Tenant shall
pay such liquidated damages to the Landlord on the days on which the rent or
any
other sums due hereunder would have been payable hereunder if possession had
not
been retaken. In no event shall the Tenant be entitled to receive any excess,
if
any, of net rent collected by the Landlord as a result of such reletting over
the sums payable by the Tenant to the Landlord hereunder.
36.02 As
additional security for the Tenant's performance of its obligations under this
Lease, the Tenant hereby grants to the Landlord a security interest in and
to
all improvements, equipment and other personal property of Tenant situated
on
the Leased Premises as security for the payment of all rent and other sums
due
or to become due under this Lease. Tenant shall execute such documents as the
Landlord may reasonably require to evidence the Landlord's security interest
in
such personal property. If the Tenant is in default under this Lease, such
personal property shall not be removed from the Leased Premises (except to
the
extent such property is replaced with an item of equal or greater value) without
the prior written consent of the Landlord. It is intended by the parties hereto
that this instrument shall have the effect of a security agreement covering
such
personal property, and the Landlord, upon the occurrence of an event of default
set forth in Section 35.01, may exercise any rights of a secured party under
the
Uniform Commercial Code of the State of Colorado including the right to take
possession of such personal property (after ten (10) days' notice to those
parties required by statute to be notified) to sell the same for the best price
that can be obtained at public or private sale, and out of the money derived
therefrom, pay the amount due the Landlord and all costs arising out the
execution of the provisions of this section, paying the surplus, if any, to
the
Tenant. If such personal property, or any portion thereof, shall be offered
at
the public sale, the Landlord may become the purchaser thereof. In addition,
all
movable furniture and personal effects of Tenant not removed from the Leased
Premises upon the vacation or abandonment thereof or upon the termination of
this Lease or for any cause whatsoever shall conclusively be deemed to have
been
abandoned and may be appropriated, sold, stored, destroyed or otherwise disposed
of by Landlord without notice to Tenant or any other power and without
obligation to account therefor; and Tenant shall pay Landlord all expenses
incurred in connection with the disposition of such property.
-20-
36.03 If
the
Tenant shall default in making any payment required to be made by the Tenant
(other than payments of rent) or shall default in performing any other
obligations of the Tenant under this Lease, the Landlord may, but shall not
be
obligated to, make such payment or, on behalf of the Tenant, expend such sums
as
may be necessary to perform such obligations. All sums so expended by the
Landlord, shall bear interest thereon at the rate of eighteen percent (18%)
per
year, and shall be repaid by the Tenant to the Landlord on demand. No such
payment or expenditure by the Landlord shall be deemed a waiver of the Tenant's
default nor shall it affect any other remedy of the Landlord by reason of such
default.
If
any
payment of rent or any other sum, or any part of any such payment, to be made
by
Tenant under the terms of this Lease shall become overdue for a period in excess
of ten (10) days Tenant shall pay to Landlord (x) a "late charge" of $.05 for
each dollar so overdue, for the purpose of defraying the expense incident to
handling such overdue or delinquent payment, and (y) interest on the overdue
amount at the Lease Interest Rate (defined below) from the date when such
payment was due until the date paid, but in no event more than the amount or
rate which is the maximum amount or rate Landlord may lawfully charge in respect
of Tenant in such circumstances under applicable law. The "Lease Interest Rate"
shall mean the greater of 18% per annum or such variable rate which is from
time
to time equal to 3% above the prime rate as stated by U.S. Bank, Denver,
Colorado or its successor, or, in the absence of there being a successor to
U.S.
Bank, by such other bank having an office in the City of Denver, as Landlord
may
from time to time select. Nothing herein shall be construed as waiving any
rights of Landlord arising out of any default of Tenant by reason of Landlord's
accepting any such late charge or interest; the right to collect a late charge
and interest is separate and apart from any other rights or remedies of Landlord
after default by Tenant.
36.04 Nothing
in this Lease contained shall limit or prejudice the right of Landlord to prove
and obtain as liquidated damages in any bankruptcy, insolvency, receivership,
reorganization, or dissolution proceeding an amount equal to the maximum allowed
by any statute or rule of law governing such a proceeding and in effect at
the
time when such damages are to be proved, whether or not such amount be greater,
equal to or less than the amounts recoverable, either as damages or rent,
referred to in any of the preceding provisions of this Lease.
36.05 Notwithstanding
anything in this Article 36 or any other provision of this Lease to the
contrary, this Lease shall not be terminated by service upon Tenant of a notice
from Landlord demanding payment of rent or possession of the Leased Premises
following default by Tenant, or by any action of Tenant to vacate the Leased
Premises following receipt of such a notice, unless the notice served by
Landlord includes a statement expressly terminating this Lease. Further,
Landlord reserves the right to receive payment of all unaccrued rent for the
balance of the Term originally contemplated under subsection 2.01(i) of this
Lease (and any extensions or renewals thereof which Tenant shall have become
bound) following service of such a notice for payment of rent or possession,
or
a notice terminating this Lease for Tenant's default.
37. HOLDING
OVER
37.01 If
the
Tenant shall continue to occupy and continue to pay Rent for the Leased Premises
after the expiration of this Lease with or without the consent of the Landlord,
and without any further written agreement, the Tenant shall be a tenant from
month to month at a monthly Base Rent equal to one hundred twenty-five percent
(125%) of the last full monthly Base Rent payment due hereunder during the
first
(1st) month of Tenant's holdover, and (ii) one hundred fifty percent (150%)
of
the last full monthly Base Rent payment due hereunder during any Tenant's
holdover exceeding one (1) month, and subject to all of the additional rentals,
charges, terms and conditions herein set out except as to expiration of the
Lease Term.
-21-
37.02 No
payments of money by Tenant to Landlord after the termination of this Lease,
in
any manner, or after giving of any notice (other than a demand for payment
of
money) by Landlord to Tenant, shall reinstate, continue or extend the term
of
this Lease or affect any notice given to Tenant prior to the payment of such
money, it being agreed that after the service of notice or the commencement
of a
suit or other final judgment granting Landlord possession of said premises,
Landlord may receive and collect any sums of Rent due, or any other sums of
money due under the terms of this Lease, or otherwise exercise its rights and
remedies hereunder. The payment of such sums of money, whether as rent or
otherwise, shall not waive said notice, or in any manner affect any pending
suit
or judgment theretofore obtained.
38. DIRECTORY
BOARD
38.01 Within
thirty (30) days after the Commencement Date, Landlord shall at its sole cost
and expense install (the "Initial Installation") Tenant's name and the name
of
up to three (3) key employees of Tenant (provided Tenant furnishes such names
to
Landlord on or before the Commencement Date). Tenant shall reimburse Landlord
within ten (10) days after receipt of demand for the cost incurred by Landlord
to change any names on the Directory Board after the Initial Installation.
The
Landlord shall designate the style of such Directory Board, which shall be
located in an area designated by the Landlord in the main lobby.
38.02 Landlord
shall, at its sole cost and expense, adjacent to the entrance to the Leased
Premises, install a Building standard sign identifying Tenant (the "Entrance
Sign"). Tenant shall be permitted to install a replacement of the Entrance
Sign,
at its election and sole cost and expense, using a Building standard sign with
Tenant's standard graphics subject to Landlord's reasonable
approval.
39. TRANSFER
BY LANDLORD
39.01 In
the
event of a sale, lease or other transfer by the Landlord of the Building or
a
portion thereof containing the Leased Premises, the Landlord shall, without
further written agreement, be freed, released and relieved of all liability
or
obligations under this Lease, subject to the provisions of Section 44.01
hereof.
40. NOTICE
40.01 Any
notice, request, statement or other writing pursuant to this Lease shall be
deemed to have been given if sent by registered or certified mail, postage
prepaid, return receipt requested, or nationally recognized overnight courier,
to the party at the address stated below:
| To Landlord: |
AMERIMAR
REALTY MANAGEMENT CO.-
|
| COLORADO, as agent for Landlord |
| 000 00xx Xxxxxx, Xxxxx 0000 |
| Xxxxxx, XX 00000 |
| With Copy to: | Denver Place Associates Limited Partnership |
| 000 Xxxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000 |
| Xxxxxxxxxxxx, XX 00000 |
or
to
Tenant at the following address until occupancy of the Leased Premises and
after
occupancy of the Leased Premises by Tenant, at the Leased Premises:
0000
-
00xx Xxxxxx, Xxxxx 0000
Xxxxxx,
XX 00000
Attention:
Xxxx Works
-22-
and
such
notice shall be deemed to have been received by the Landlord or Tenant, as
the
case may be, on the second business day after the date on which it shall have
been so mailed.
40.02 Notice
shall also be sufficiently given if and when the same shall be delivered, in
the
case of notice to Landlord, to an executive officer of the Landlord, and in
the
case of notice to the Tenant or the Guarantor, to him personally or to an
executive officer of the Tenant or the Guarantor if the Tenant or the Guarantor
is a corporation. Such notice, if delivered, shall be conclusively deemed to
have been given and received at the time of such delivery. If in this Lease
two
or more persons are named as Tenant, such notice shall also be sufficiently
given if and when the same shall be delivered personally to any one of such
persons.
40.03 Any
party
may, by notice to the other, from time to time, designate another address in
the
United States or Canada to which notices mailed more than ten (10) days
thereafter shall be addressed.
41. GOVERNING
LAW
41.01 This
Lease shall be deemed to have been made in and shall be construed in accordance
with the laws of the State of Colorado.
42. LEASE
ENTIRE AGREEMENT
42.01 The
Tenant acknowledges that there are no covenants, representations, warranties,
agreements or conditions, expressed or implied, collateral or otherwise forming
part of or in any way affecting or relating to this Lease save those expressly
set out in this Lease, the Facing Page and Exhibits attached hereto and that
this Lease, the Facing Page and Exhibits attached hereto and the Rules and
Regulations promulgated by Landlord in accordance with Section 13.01 hereof
constitute the entire agreement between the Landlord and the Tenant and may
not
be amended or modified except as explicitly provided or except by subsequent
agreement in writing of equal formality hereto executed by the Landlord and
the
Tenant.
43. BINDING
EFFECT
43.01 Except
as
expressly provided herein, this Lease shall inure to the benefit of, and be
binding upon, the parties hereto and their respective successors and permitted
assigns, and all covenants and agreements herein contained to be observed and
performed by the Tenant shall be joint and several. Tenant shall look solely
to
the estate and interest of Landlord, its successors and assigns, in and to
the
Real Property or the proceeds therefrom for the collection of a judgment (or
other judicial process) requiring the payment of money by Landlord hereunder,
and no other property or assets of Landlord shall be subject to levy, execution
or other enforcement procedure for the satisfaction of Tenant's remedies under
or with respect to this Lease, the relationship of Landlord and Tenant hereunder
or Tenant's use of occupancy of the Leased Premises.
44. SECURITY
DEPOSIT
44.01 The
Tenant shall keep on deposit with the Landlord at all times during the term
of
this Lease, the Lease Deposit ("Lease Deposit") specified on the Facing Page
(subject to adjustment pursuant to the provisions of subsection 62.02(d) of
the
Addendum) hereof as security for the payment by the Tenant of the rent or any
other sums due under this Lease and for the faithful performance of all the
terms, conditions and covenants of this Lease; provided, however, that Landlord
agrees to return $20,052.42 of the Lease Deposit to Tenant within thirty (30)
days after the last day of the twenty-second (22nd) month of the Term, provided
that Tenant has performed all of its obligations under this Lease through and
including the last day of such calendar month. If at any time during the term
of
this Lease the Tenant shall be in default in the performance of any provision
of
this Lease after any required notice and expiration of any applicable cure
period, the Landlord may (but shall not be required to) use the Lease Deposit,
or so much thereof as necessary, in payment of any rent or any other sums due
under this Lease in default, in reimbursement of any expense incurred by the
Landlord and in payment of the damages incurred by the Landlord by reason of
the
Tenant's default. In such event, the Tenant shall, on written demand of the
Landlord, forthwith remit to the Landlord a sufficient amount in cash to restore
any amounts paid from the Lease Deposit. If the Lease Deposit has not been
utilized as aforesaid, the Lease Deposit, or as much thereof as has not been
utilized for such purposes, shall be refunded to the Tenant, without interest,
upon full performance of this Lease by the Tenant. Landlord shall have the
right
to commingle such deposit with other funds of the Landlord. Landlord shall
deliver the funds deposited herein by the Tenant to any purchaser of the
Landlord's interest in the Leased Premises in the event such interest be sold,
and thereupon, the Landlord shall be discharged from further liability with
respect to the Lease Deposit. Notwithstanding the above provisions of this
section, if claims of the Landlord exceed the Lease Deposit provided for
therein, the Tenant shall remain liable for the balance of such
claims.
-23-
45. INTERPRETATION
45.01 Unless
the context otherwise requires, the word "Landlord" whenever it is used herein
shall be construed to include and shall mean the Landlord, its successors and/or
assigns, and the word "Lease" shall be construed to include and shall mean
the
General Lease Provisions, the Office Lease Facing Page and any Exhibits attached
hereto unless the context otherwise specifies and the word "Tenant" shall be
construed to include and shall mean the Tenant, and the executors,
administrators, successors and/or assigns of the Tenant and when there are
two
or more tenants, or two or more persons bound by the Tenant's covenants herein
contained, their obligations hereunder shall be joint and several; the word
"Tenant" and the personal pronouns "his" and "it" relating thereto and used
therewith shall be read and construed as tenants, and "his", "her", "its" or
"their", respectively, as the number and gender of the party or parties referred
to each require and the number of the verb agreeing therewith, shall be
construed and agree with the said word or pronoun so substituted. Time shall
be
of the essence in all respects hereunder.
46. SEVERABILITY
46.01 Landlord
and Tenant agree that all of the provisions of this Lease are to be construed
as
covenants and agreements where used in each separate paragraph hereof. Should
any provision or provisions of this Lease be illegal or not enforceable, it
or
they shall be considered separate and severable from this Lease and its
remaining provisions shall remain in force and be binding upon the parties
hereto as though the said provision or provisions had never been
included.
47. INDEPENDENT
COVENANTS
47.01 This
Lease shall be construed as though the covenants herein between Landlord and
Tenant are independent, and not dependent, and Tenant shall not be entitled
to
any set off of the rent or other amounts owing hereunder against Landlord,
if
Landlord fails to perform its obligations set forth herein; provided, however,
the foregoing shall in no way impair the right of Tenant to commence a separate
action against Landlord for any violation by Landlord of the provisions hereof
so long as notice is first given to Landlord and any holder of a mortgage or
deed of trust covering the Building or any portion thereof and an opportunity
granted to Landlord and such holder to correct such violation as provided in
Section 48.01 below.
48. ADDITIONAL
NOTICES
48.01 In
the
event of any alleged default on the part of Landlord hereunder, Tenant shall
give written notice to Landlord in the manner herein set forth and shall afford
Landlord a reasonable opportunity to cure any such default. In addition, Tenant
shall send notice of such default by certified or registered mail, postage
prepaid, to the holder of any mortgages or deeds of trust covering the Building
or any portion thereof of whose address Tenant has been notified in writing,
and
shall afford such holder a reasonable opportunity to cure any alleged default
on
Landlord's behalf. In no event will Landlord be responsible for any damages
incurred by Tenant including, but not limited to, lost profits or interruption
of business as a result of any alleged default by Landlord hereunder.
Notwithstanding the provisions of this Section 48.01, Tenant shall not be
required to provide notice to Landlord as a condition of receiving the Base
Rent
abatement provided under Section 7.03.
-24-
49. GOVERNMENTALLY
REQUIRED IMPROVEMENTS
49.01 If
any
improvement or structural modification or addition to the Building is required
subsequent to the commencement of the term hereof by any change in the laws,
ordinances, rules, regulations or orders of any governmental or
quasi-governmental authority having jurisdiction over the Building, the rent
to
be paid by Tenant shall be further adjusted, in such amount as Landlord's
independent certified public accountants may determine so that Tenant pays
its
Proportionate Share of Landlord's per square foot cost (computed in the same
manner as otherwise provided in this Lease) of such improvement or structural
modification or addition, amortized at a market rate of return over the useful
life thereof. In determining such adjustment in rent, Landlord's independent
certified public accountant shall consider any cost reductions to Landlord
in
operating the Building resulting from such improvement or structural
modification or addition. Tenant shall commence payment of any adjustment in
its
rent pursuant to this Section 49.01 on the first day of the month following
notice thereof by Landlord.
50. RECORDING
- SHORT FORM MEMO
50.01 This
Lease shall not be recorded in its entirety. If recorded by Tenant, at
Landlord's option this Lease shall terminate as of the date of recording and
Landlord shall have all rights and remedies provided in the case of default
by
Tenant hereunder. If requested by Landlord, Tenant shall execute in recordable
form a short form memorandum of Lease which may, at Landlord's option, be placed
of record. In addition, if requested by Landlord, Tenant shall execute a
memorandum of Lease to be filed with the Colorado Department of Revenue on
such
form as may be prescribed by said Department within ten (10) days after the
execution of the Lease or any other such memorandum so that the Landlord may
avail itself of the provision of statutes such as C.R.S.
§39-22-604(7)(c).
51. REAL
ESTATE BROKER
51.01 Landlord
and Tenant acknowledge and agree that: (i) Landlord has been represented in
connection with this Lease by Amerimar Realty Management Co.-Colorado ("Agent")
and by Silverbrae Holdings, Inc. (Xxxxx X. X. Xxxx and Xxxxx XxXxxxxx)
("Silverbrae") as Landlord's agents, and (ii) Tenant has been represented in
connection with this Lease by The Staubach Company (Xxxxxxx Xxxxx and Xxx Xxxxx)
("Xxxxxxxx") as Tenant’s agent. Tenant agrees to indemnify, defend and hold
Landlord harmless from and against any claims, for a commission or other
compensation in connection with this Lease, made by any broker or finder (other
than Agent, Silverbrae and Staubach) who claim to have dealt with or
communicated to Tenant in connection with this Lease provided that the Landlord
has not in fact retained such broker or finder. Landlord agrees to pay Agent,
Silverbrae and Staubach pursuant to the terms of separate agreements, for their
services rendered in connection with this Lease, and agrees to indemnify, defend
and hold Tenant harmless from and against any claims, for a commission or other
compensation in connection with this Lease, made by any broker or finder who
claim to have dealt with or communicated to Landlord in connection with this
Lease provided that Tenant has not in fact retained such broker or
finder.
52. CAPTIONS
AND EXHIBITS
52.01 The
captions appearing within the body of this Lease have been inserted as a matter
of convenience and for reference only and in no way define, limit or enlarge
the
scope or meaning of this Lease or of any provision hereof. The Exhibits attached
to this Lease and incorporated herein by this reference are as
follows:
-25-
|
Addendum
|
|
|
Exhibit
A
|
Leased
Premises Diagram
|
|
Exhibit
A-1
|
Layout
Plans (to be attached upon completion)
|
|
Exhibit
A-2
|
Offer
Space Diagram
|
|
Exhibit
B
|
Rules
and Regulations
|
|
Exhibit
C
|
Lease
Term Agreement
|
|
Exhibit
D
|
Parking
Agreement
|
|
Exhibit
E
|
List
of Landlord's Furniture
|
|
Exhibit
E-1
|
Form
of Xxxx of Sale
|
53. SUBSTITUTION
OF OTHER PREMISES
53.01 (a) At
any
time after the Commencement Date, Landlord shall have the one-time right during
the initial Term (and not during the Renewal Term (hereinafter defined)) to
substitute for the premises then being leased or to be leased hereunder (the
"Existing Premises") other premises within the North Tower or South Tower of
the
Complex located on or above the fourteenth (14th) floor (herein referred to
as
the "New Premises"), provided the New Premises are similar in an area and
utility for Tenant's purposes.
(b) Tenant
shall vacate and surrender the Existing Premises not later than the later of
the
30th day after the date that Landlord shall notify Tenant of Landlord's intent
to make the substitution in question or the 15th day after Landlord shall have
substantially completed the work to be done by Landlord in the New Premises.
As
of the sooner of such 15th day or the date of such surrender and vacation,
the
New Premises shall be the Leased Premises leased under this Lease and the
Existing Premises shall cease to be the Leased Premises leased under this Lease.
Landlord shall (A) pay the actual and reasonable out-of-pocket expenses of
Tenant's moving of its property from the Existing Premises to the New Premises,
provided Tenant provides reasonable evidence of the costs incurred to Landlord,
and (B) shall improve the New Premises so that they are substantially similar
to
the Existing Premises and promptly reimburse Tenant for its actual and
reasonable out-of-pocket costs in connection with the relocation of any
telephone or other communications equipment from the Existing Premises to the
New Premises.
(d) Tenant
shall not be entitled to any compensation for any inconvenience or interference
with Tenant's business, nor to any abatement or reduction in rent, nor shall
Tenant's obligations under this Lease be otherwise affected, as a result of
the
substitution except as otherwise provided in this Section 53.01. Tenant agrees
to cooperate with Landlord so as to facilitate the prompt completion by Landlord
of its obligation under this Section 53.01. Without limiting the generality
of
the preceding sentence, Tenant agrees to provide to Landlord promptly such
approvals, instruction, plans, specifications or other information, as may
be
reasonably requested by Landlord.
|
54.
|
ADDITIONAL
CHARGES FOR TAXES AND LANDLORD'S OPERATING
EXPENSES
|
54.01 During
each lease year of the Term (and pro rata for partial lease years) occurring
after Calendar Year 2007 Tenant shall pay to Landlord "Additional Rent," which
is equal to the sum of Tenant's Proportionate Share of Operating Expenses and
Additional Services Charge. Such payment shall be made in equal monthly
installments in advance, together with the Rent.
54.02 For
purposes of this Lease, the following terms shall have the meaning hereinafter
set forth:
(a) "Calendar
Year" shall mean each calendar year in which any part of the Term falls, through
and including the year in which the Term expires.
(b) "Common
Areas" shall mean such areas and facilities of common benefit to the tenants
and
occupants of the complex of any portion thereof as Landlord shall make available
from time to time. Landlord shall operate, manage, equip, heat, ventilate,
cool,
light, insure, repair and maintain the Common Areas for their intended purposes
in such manner as Landlord shall in its sole discretion determine, and may
from
time to time change the size, location and nature of any common area, and may
make installation therein, and alter, move and remove the same, and Landlord
shall not be subject to liability therefor, nor shall Tenant be entitled to
any
compensation, or diminution or abatement of rent, nor shall any such action
be
deemed an actual or constructive eviction of Tenant.
-26-
(c) "Landlord's
Operating Expense Contribution" shall mean the total amount of Operating
Expenses (on a per rentable square foot basis) incurred by Landlord during
the
Calendar Year 2007.
(d) "Operating
Expenses" shall mean the total costs and expenses of every kind and nature
whatsoever paid or incurred by Landlord (including appropriate reserves) in
connection with the ownership, operation, management, maintenance and repair
of
the Real Property or Building (exclusive of the costs and expenses of providing
electrical and janitorial service within the leased premises of the retail
tenants only located in the "Enclosed Shopping Mall," located in an area
attached to the first and second floors of the Building) and, as allocated
by
Landlord, those paid or incurred in connection with the ownership, operation,
management, maintenance and repair of any garage or other improvements the
use
of which is shared by the Building and one or more other buildings. Operating
Expenses include, but are not limited to, the costs of utilities, insurance,
Taxes, reasonable administration, general maintenance other than those costs
reimbursable to Landlord by other tenants in the Building, wages and related
taxes, cleaning, repairs and replacements, window washing, rubbish removal,
snow
removal, sewer charges, fuel, air conditioning, fire protection, signs, general
landscape maintenance, operation of loudspeakers and any other equipment
supplying music and any other costs, charges and expenses which, under sound
management practice, would be regarded as operating expenses. Without limiting
the generality of the foregoing, Operating Expenses may also include the cost
of
all capital improvements for the Building amortized over such number of years
as
Landlord may reasonably determine, with interest, at the greater of 12% per
annum or two per cent (2%) over the "Prime Rate" established from time to time
by U.S. Bank, Denver, Colorado or its successor, on the unamortized amount
of
any capital improvements which, (i) in Landlord's sole opinion, will have the
effect of reducing any component cost included within Operating Expenses, (ii)
are made or installed to assure compliance with all governmental rules and
regulations applicable from time to time, or (iii) under generally applied
real
estate accounting practices may be expenses or treated as deferred expenses
(and
the amortization and interest so determined for each calendar year shall be
included in Operating Expenses for that calendar year).
(e) "Taxes"
shall mean all real estate taxes and assessments, special or otherwise, levied
or assessed upon or with respect to the Real Property and Building (including
without limitation, any leasehold improvements therein) and, as allocated by
Landlord, those levied or assessed upon or with respect to any garage or other
improvements (and their land) the use of which is shared by the Building and
one
or more other buildings, and ad valorem taxes for any personal property used
in
the operation of the Real Property and Building and all taxes levied or assessed
upon or with respect to the leasing, use or occupancy of the Real Property
or
any part thereof or the rents or receipts paid or payable to Landlord therefrom
(including, without limitation, any general gross receipts tax and any income
tax levied or assessed especially with respect to real property or any type
of
real property which includes the Real Property), which Landlord shall become
obligated to pay or which could become liens on the Real Property. Should the
State of Colorado, or any political subdivision thereof, or any other
governmental authority, impose a tax, assessment, charge or fee, which Landlord
shall be required to pay, wholly or partially in substitution for any of the
above Taxes, all such taxes, assessments, fees or charges shall be deemed to
constitute Taxes hereunder but shall be computed as if the Real Property and
any
other shared use real property referred to in this subsection was the only
real
property of Landlord. "Taxes" shall include all fees and costs, including
attorneys' fees, appraisals and consultants' fees, incurred by Landlord in
seeking to obtain a reduction of, or a limit on, any increase in any Taxes
(regardless or whether any reduction or limitation is obtained). The amount
of
any refund of Taxes received by Landlord shall be credited against Taxes for
the
year in which such refund is received.
(f) "Proportionate
Share of Operating Expenses" shall be the product of: (i) the excess of total
Operating Expenses over Landlord's Operating Expense Contribution multiplied
by
(ii) the Proportionate Share defined in subsection 2.01(f) above.
(g) "Additional
Services Charge" shall mean all expenses and disbursements that Landlord incurs
in connection with the ownership, operation, and maintenance of the Leased
Premises, in addition to the services provided as standard to all leased
premises in the Building, which Additional Services are more specifically
described and defined in Section 7 above.
-27-
54.03 In
determining the amount of Operating Expenses for each Calendar Year, if less
than 95% of the rentable office area of the Building shall have been occupied
at
any time during such Calendar Year, Operating Expenses shall be deemed for
such
Calendar Year to be in the amount reasonably determined by Landlord to be equal
to that amount of like expenses which normally would be expected to be incurred
had such occupancy been 95% throughout such Calendar Year. If Landlord shall
not
be furnishing any particular work or service (the cost of which, if furnished
by
Landlord would be included in Operating Expenses) to a tenant who undertakes
to
itself perform or obtain such work or service in lieu of the furnishing thereof
by Landlord, Operating Expenses shall be deemed for purposes of this Section
54
to be increased by an amount equal to the additional Operating Expenses, as
reasonably determined by Landlord, which would have been incurred during such
period if Landlord had at its own expense furnished such work or service to
such
tenant.
54.04 (a) Landlord
may, from time to time, compute and furnish Tenant with a bona fide estimate
of
the Operating Expenses for the current or ensuing Calendar Year and the
Proportionate Share of Operating Expenses and Additional Services Charge for
such Year; provided, however, that such estimate shall not constitute any
representation or assurance by Landlord of the amount that the actual Operating
Expenses or Additional Services Charge for such year will be. Thereafter, Tenant
shall pay to Landlord, on the first day of each month, together with payments
of
Rent, one-twelfth (1/12th) of Landlord's estimate of the Proportionate Share
of
Operating Expenses for that Calendar Year. With reasonable promptness after
the
expiration of each Calendar Year, Landlord shall furnish Tenant with a statement
(hereinafter called Landlord's Expense Statement), setting forth in reasonable
detail the Operating Expenses for such Calendar Year, the Proportionate Share
of
Operating Expenses for such Calendar Year, and Additional Services Charge.
If
the Proportionate Share of Operating Expenses and Additional Services Charge
for
such Calendar Year exceeds the amount previously paid by Tenant on account
of
Landlord's estimate of such expenses, Tenant shall pay to Landlord the full
amount of such excess within fifteen (15) days after receipt of Landlord's
Expense Statement. If the total amount paid by Tenant on account of Landlord's
estimate exceeds the Proportionate Share of Operating Expenses and Additional
Services Charge, such excess shall be credited against the next installment
of
the Proportionate Share of Operating Expenses and Additional Services
Charge.
(b) Notwithstanding
the foregoing, if Landlord is required to pay an amount which it is entitled
to
collect from the tenants of the Building, more frequently than required as
of
the Commencement Date or if Landlord is required to prepay any such amount,
or
if adjustments to the normal rate for any electric, gas or water utility xxxx
or
utility charge applicable during the first year of the Term, Tenant shall pay
to
Landlord upon demand Tenant's Proportionate Share of such amount calculated in
accordance with this Lease.
54.05 If
the
Expiration Date fixed for this Lease shall occur on a date other than the end
of
a Calendar Year, the Proportionate Share of Operating Expenses for such year
shall be prorated according to the ratio that the number of days in such
Calendar Year during which the Term was in effect bears to 365; provided
however, Landlord may, pending the determination of Operating Expenses for
such
year, furnish Tenant with a statement of estimated Operating Expenses and the
Proportionate Share thereof for such partial Calendar Year. Within thirty (30)
days after receipt of such statement, Tenant shall remit to Landlord, as
Additional Rent, the amount of the Proportionate Share of Operating Expenses
as
shown on Landlord's statement, together with any Additional Services Charge
which may be due. After the Operating Expenses and Additional Services Charge
for such Calendar Year have been finally determined and Landlord's Expense
Statement has been furnished to Tenant pursuant to Section 54.04, if there
shall
have been an underpayment by Tenant of the Proportionate Share of Operating
Expenses or Additional Services Charge, Tenant shall remit the amount of such
underpayment to Landlord within thirty (30) days after receipt of such
statement, and if there shall have been an overpayment, Landlord shall remit
the
amount of such overpayment to Tenant within thirty (30) days after the issuance
of such statement, provided that Tenant is not in default under this Lease.
The
expiration or termination of this Lease shall not terminate or impair Tenant's
obligation to pay the Proportionate Share of Operating Expenses or the
Additional Services Charge for the Calendar Year in which the Term
ends.
-28-
54.06 Any
statement furnished to Tenant by Landlord under the provisions of this Article
54 shall constitute a final determination as between Landlord and Tenant as
to
the rent set forth therein due from Tenant for the period represented thereby,
unless Tenant, within 60 days after such statement is furnished, shall give
a
notice to Landlord that it disputes the correctness thereof, specifying in
detail the basis for such assertion. Pending resolution of such dispute, Tenant
shall pay all disputed amounts in accordance with the statement furnished by
Landlord. Landlord agrees, upon prior written request, during normal business
hours to make available for Tenant's inspection, at Landlord's offices,
Landlord's books and records which are relevant to any items in dispute,
provided Tenant has paid all amounts billed to Tenant on account of Tenant's
Proportionate Share of Operating Expenses and Additional Services
Charge.
54.07 Tenant,
at Tenant's expense, shall have the right, no more frequently than once per
calendar year, following fifteen (15) days' prior written notice to Landlord,
to
audit Landlord's books and records relating to Operating Expenses; provided
that
such audit must be concluded within sixty (60) days after the date such
statement of Operating Expenses has been furnished to Tenant; and provided
further that such audit does not unreasonably interfere with the conduct of
Landlord's business. Without limitation upon the foregoing, Tenant's right
to
audit Landlord's books and records shall be subject to the following
conditions:
(1) Such
audit shall be limited to the calendar year of the applicable Operating Expense
statement;
(2) Such
audit shall be conducted during normal business hours and at the location where
Landlord maintains its books and records;
(3) Tenant
shall deliver to Landlord a copy of the results of such audit within fifteen
(15) days after its receipt by Tenant;
(4) No
audit
shall be permitted if Tenant is in default under this Lease beyond any
applicable cure period, including any failure by Tenant to pay any amount in
dispute;
(5) Tenant
shall reimburse Landlord within thirty (30) days following written demand for
the cost of all copies requested by Tenant's auditor; and
(6) Such
audit must be conducted by a qualified independent accounting or audit firm
selected by Tenant and reasonably acceptable to Landlord that is not being
compensated by Tenant on a contingency fee basis and which has agreed with
Landlord in writing to keep the results of such audit confidential.
Unless
Landlord in good faith disputes the results of such audit, an appropriate
adjustment shall be made between Landlord and Tenant to reflect any overpayment
or underpayment of Tenant’s Proportionate Share of Operating Expenses within
thirty (30) days after delivery of such audit to Landlord. In the event of
an
overpayment by Tenant, Landlord shall make a cash payment to Tenant in the
amount of such overpayment, or, at Landlord's option, Landlord may credit such
overpayment against the remaining Base Rent. In the event Landlord in good
faith
disputes the results of any such audit, the parties shall in good faith attempt
to resolve any disputed items. If Landlord and Tenant are able to resolve such
dispute, final settlement shall be made within thirty (30) days thereafter.
If
the parties are unable to resolve any such dispute, any sum on which there
is no
longer dispute shall be paid and any remaining disputed items shall be referred
to a mutually satisfactory third party certified public accountant for final
resolution. The cost of such certified public accountant shall be paid by the
party found to be least accurate (in terms of dollars in dispute); provided,
however, in the event the resolution does not result in a finding that Landlord
overstated Operating Expenses by more than five percent (5%) Tenant shall be
responsible for the cost of such certified public accountant. The determination
of such certified public accountant shall be final and binding and final
settlement shall be made within thirty (30) days after receipt of such
accountant's decision.
-29-
55. HAZARDOUS
MATERIALS
55.01 The
Landlord hereby represents that to the best of its knowledge, no Hazardous
Materials (as defined below) are located within the Building. In the event
that
Hazardous Materials are located in the Building, not as a result of Tenant's
conduct, and any action is required to be taken under any Environmental Law
(hereinafter defined),t hen landlord will promptly give written notice to Tenant
that identifies the Hazardous Materials and the actions required to be taken
and
Landlord will take such action to bring the Building into compliance with
applicable Environmental Laws within thirty (30) days after the requirement
arises and will provide reasonable evidence of such compliance to the Tenant;
provided, however, in the event such compliance or registration cannot
reasonably be completed or obtained within such thirty (30) days, the Landlord
will not be in default hereunder provided the Landlord commences such corrective
action within said thirty (30) days and diligently pursues the same to
completion.
55.02 Tenant
shall not store highly flammable materials or goods, explosives, perishable
foodstuffs, contraband, live animals, materials or goods which emit odors in
or
upon the Leased Premises. The Tenant covenants that it shall not store, use
or
possess nor permit the storage, use or possession of any Hazardous Substance
(hereinafter defined) upon the Leased Premises. Hazardous Substance for purposes
of this Lease shall mean, without limitation, any flammable explosives, radon,
radioactive materials, asbestos, urea-formaldehyde foam insulation,
polychlorinated biphenyls, petroleum and petroleum based products, methane,
hazardous materials, hazardous wastes, hazardous or toxic substances or related
materials, as defined in the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, 42 U.S.C. Sections 9601, et seq.
(including the so-called "Superfund" amendments thereto); the Toxic Substances
Control Act, as amended, 15 U.S.C. Sections 2601, et seq.; the Resource
Conservation and Recovery Act of 1976, as amended, 42 U.S.C. Sections 6901,
et
seq.; the Hazardous Materials Transportation Act, as amended, 49 U.S.C. Sections
5101, et seq. (formerly 49 U.S.C. 1801, et seq.); or any other similar law,
rule, regulation or statute concerning the protection of the environment
(collectively "Environmental Laws"). Tenant hereby covenants and agrees, at
its
sole cost and expense, to indemnify, protect and defend and save harmless the
Landlord and any of its members, managers, employees and agents from and against
any and all damages, losses, liabilities, obligations, penalties, claims,
litigation, demands, defenses, judgments, suits, actions, proceedings, costs,
disbursements and expenses (including, without limitation, attorneys' and
experts' fees, expenses and disbursements) of any kind or nature whatsoever
which may at any time be imposed upon, incurred by or asserted or awarded
against the Landlord, its members, managers, agents or employees relating to,
resulting from or arising out of Tenant's failure to comply with its obligations
under the foregoing section or Tenant's violation of any Environmental Law
with
respect to its use of the Leased Premises. Notwithstanding any provision
contained in this Lease to the contrary, the indemnification provisions set
forth in this Section 55.02 shall survive any expiration or termination of
this
Lease.
56. TELEPHONE
AND TELECOMMUNICATIONS SERVICE
56.01 (a) Tenant
acknowledges and agrees that all telephone and telecommunications services
("Telecommunications Services") desired by Tenant shall be ordered and utilized
at the sole expense of Tenant. Unless Landlord otherwise requests or consents
in
writing, all equipment, apparatus and devices, including without limitation
wiring and cables, for the provisions of Telecommunications Services (the
"Telecommunications Equipment") shall be and remain solely in the Leased
Premises. Unless otherwise specifically agreed in writing, Landlord shall have
no responsibility for the maintenance of Tenant's Telecommunications Equipment,
nor for any wiring or other infrastructure to which Tenant's Telecommunications
Equipment may be connected. Tenant agrees that, to the extent any
Telecommunications Services are interrupted, curtailed or discontinued, Landlord
shall have no obligation or liability with respect thereto and it shall be
the
sole obligation of Tenant, at its sole expense, to obtain substitute
service.
(b) Landlord
shall have the right, upon such notice as is practicable in the case of
emergencies, and otherwise upon reasonable prior notice to Tenant, to interrupt
or turn off telecommunications facilities in the event of emergency or as
necessary in connection with repairs to the Building or installation of
telecommunications equipment for other tenants of the Building.
-30-
(c) Any
and
all Telecommunications Equipment installed in the Leased Premises, or elsewhere
in the Building by or on behalf of Tenant, including wiring and other facilities
for the provision of Telecommunications Services, shall be removed by Tenant
upon the expiration or earlier termination of the Term of this Lease, by Tenant
at its sole expense or, at Landlord's election, by Landlord at Tenant's sole
expense, with the cost thereof to be paid as Additional Rent under this
Lease.
(d) If
the
Telecommunications Equipment is not removed within thirty (30) days of the
termination or expiration of this Lease, the Telecommunications Equipment shall
conclusively be deemed to have been abandoned and may be removed, appropriated,
sold, stored, destroyed, otherwise disposed of, or retained and used, by
Landlord without notice to Tenant, without obligation to account therefor,
and
without payment to Tenant or credit against any amount due from Tenant to
Landlord pursuant to this Lease. Tenant shall pay to Landlord upon demand all
costs of any such removal, disposition and storage of the Telecommunications
Equipment, as well as all costs to repair any damage to the Building caused
by
such removal.
(e) In
the
event that Tenant wishes at any time to utilize the services of a telephone
or
telecommunications provider whose equipment is not then servicing the Building
(a "New Provider"), no such New Provider shall be permitted to install its
lines
or other equipment within the Building without first securing the prior written
approval of the Landlord, which approval may be withheld in Landlord's sole
and
absolute discretion. Landlord's approval shall not be deemed any kind of
warranty or representation by Landlord, including, without limitation, any
warranty or representation as to the suitability, competence or financial
strength of the New Provider. Without limitation of Landlord's right to withhold
consent in its sole and absolute discretion, Landlord may refuse to give its
approval unless all of the following conditions are satisfied: (i) Landlord
shall incur no expense whatsoever with respect to any aspect of the New
Provider's provision of its services, including, without limitation, the costs
of installation, materials and services; (ii) prior to commencement of any
work
in or about the Building by the New Provider, the New Provider shall supply
Landlord with such written indemnities, insurance, financial statements, and
such other items as Landlord, in its sole and absolute discretion, determines
to
be necessary to protect its financial interests and the interests of the
Building related to the proposed activities of the New Provider; (iii) the
New
Provider agrees in writing to abide by such rules and regulations, building
and
other codes, job site rules and such other requirements as are determined by
Landlord, in its sole and absolute discretion, to be necessary to protect the
interest of the Building, the tenants in the Building and Landlord; (iv)
Landlord determines, in its sole and absolute discretion, that there is
sufficient space in the Building for the placement of all of the New Provider's
equipment and materials; (v) Landlord receives from the New Provider such
compensation as is determined by the Landlord, in its sole and absolute
discretion, to compensate it for space used in the Building for the storage
and
maintenance of the New Provider's equipment, for the fair market value of the
New Provider's access to the Building, and any costs which may be expected
to be
incurred by Landlord; and (vi) all of the foregoing matters are documented
in a
written agreement between Landlord and the New Provider, the form and content
of
which are satisfactory to Landlord in its sole and absolute
discretion.
(f) Notwithstanding
any provision of the preceding subsection to the contrary, the refusal of
Landlord the grant its approval to any New Provider shall not be deemed a
default or breach by Landlord of its obligation under this Lease, and in no
event shall Tenant have the right to terminate this Lease or claim entitlement
to rent abatement for Landlord's refusal to grant Tenant's request for approval
of a New Provider. The provisions of this Section 56.01 may be enforced solely
by Tenant and Landlord and are not for the benefit of any other party.
Specifically, but without limitation, no telephone or telecommunications
provider is intended to be, nor shall be deemed, a third party beneficiary
of
this Lease.
(g) Tenant
shall not utilize any wireless communications equipment (other than usual and
customary cellular telephones), including antenna and satellite receiver dishes,
within the Leased Premises or the Building, without Landlord' prior written
consent. Such consent shall be granted only in the sole and absolute discretion
of the Landlord, and shall be conditioned in such a manner, in Landlord's sole
and absolute discretion, so as to protect Landlord's financial interests and
the
interests of the Building, and the other tenants therein.
-31-
57. TRANSFER
OF LANDLORD'S INTEREST
57.01 Notwithstanding
anything contained herein to the contrary, Tenant agrees that neither Landlord
nor any partner in Landlord, nor any other person having any interest, direct
or
indirect, immediate or more removed than immediate, in Landlord, shall have
any
personal liability with respect to any of the provisions of this Lease and
Tenant shall look solely to the estate and property of Landlord in the Property
for the satisfaction of Tenant's remedies, including without limitation, the
collection of any judgment or the enforcement of other judicial process
requiring the payment or expenditure of money by Landlord, subject, however,
to
the prior rights of any holder of any mortgage covering all or part of the
Property, and no other assets of Landlord or its partners, or of any other
aforesaid person having an interest in Landlord, shall be subject to levy,
execution or other judicial process for the satisfaction of Tenant's claims.
Without limitation of the foregoing, upon each transfer of the Building and
the
Landlord's interest in this Lease, the transferor shall automatically be
released from all liability and obligations under this Lease.
58. TIME
IS OF THE ESSENCE
58.01 Time
is
of the essence hereof.
59. ADDITIONAL
PROVISIONS
59.01 Warranty
Disclaimer
.
LANDLORD AND TENANT EXPRESSLY DISCLAIM ANY IMPLIED WARRANTY THAT THE LEASED
PREMISES ARE SUITABLE FOR TENANT'S INTENDED COMMERCIAL PURPOSE, AND TENANT'S
OBLIGATION TO PAY RENT HEREUNDER IS NOT DEPENDENT UPON THE CONDITION OF THE
LEASED PREMISES OR THE PERFORMANCE BY LANDLORD OF ITS OBLIGATIONS HEREUNDER,
AND, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, TENANT SHALL CONTINUE TO
PAY
THE RENT, WITHOUT ABATEMENT, SETOFF OR DEDUCTION, NOTWITHSTANDING ANY BREACH
BY
LANDLORD OF ITS DUTIES OR OBLIGATIONS HEREUNDER, WHETHER EXPRESS OR
IMPLIED.
59.02 Waiver
of Trial by Jury
.
LANDLORD AND TENANT SHALL, AND HEREBY DO, WAIVE TRIAL BY JURY IN ANY ACTION,
PROCEEDING, OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST
THE
OTHER ON ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH
THE
LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S USE OR OCCUPANCY OF
THE
LEASED PREMISES, AND ANY EMERGENCY STATUTORY OR ANY OTHER STATUTORY
REMEDY.
59.03 Force
Majeure
. Other
than for Tenant's obligations under this Lease that can be performed by the
payment of money (e.g., payment of Rent and maintenance of insurance), whenever
a period of time is herein prescribed for action to be taken by either party
hereto, such party shall not be liable or responsible for, and there shall
be
excluded from the computation of any such period of time, any delays due to
strikes, riots, acts of God, shortages of labor or materials, war, governmental
laws, regulations, or restrictions, or any other causes of any kind whatsoever
which are beyond the control of such party.
59.04 Survival
of Indemnities
. Each
indemnity agreement and hold harmless agreement contained herein shall survive
the expiration or termination of this Lease.
59.05 Executive
Orders
. Tenant
represents and warrants to Landlord that (a) Tenant is not listed on the
Specially Designated Nationals and Blocked Person List maintained by the Office
of Foreign Asset Control, Department of the Treasury ("OFAC"), pursuant to
the
requirements of Executive Order No. 13224, 66 Fed. Reg. 49079 (Sept. 25, 2001)
(the "Order") or on any other lists of terrorist or terrorist organizations
("Lists") issued pursuant to the rules and regulations of OFAC or in any other
enabling legislation or other Executive Orders in respect thereof (the Order
and
such other rules, regulations, legislation or orders are collectively called
the
"Orders"); (b) Tenant is not and will not be engaged in any activities
prohibited in the Orders; (c) Tenant has not been convicted or pleaded nolo
contendere to charges related to activity prohibited in the Orders; (d) Tenant
will not permit the Premises to be used for activities prohibited in the Orders
nor permit the Premises to be occupied by any person on such Lists; and (e)
Tenant has not pleaded nolo contendere to, or been convicted, indicted,
arraigned, or custodially detained on, charges involving money laundering,
predicate crimes to money laundering, or any violation of any Anti-Money
Laundering Laws (hereinafter defined). "Anti-Money Laundering Laws" means those
laws, regulations, and sanctions, state and federal, criminal and civil, that
(1) limit the use of and/or seek the forfeiture of proceeds from illegal
transaction; (2) limit commercial transactions with designated countries or
individuals believed to be terrorists, narcotics dealers, or otherwise engaged
in activities contrary to the interests of the United States; (3) require
identification and documentation of the parties with whom a Financial
Institution (as defined in 31 U.S.C. § 5312, et seq.), the Trading With The
Enemy Act (50 U.S.C. App. §§ 1, et seq.), the International Emergency Economic
Powers Act (50 U.S.C. §§ 1701, et seq.), and the sanction regulations
promulgated pursuant thereto by OFAC, as well as laws relating to prevention
and
detection of money laundering in 18 U.S.C. §§ 1956-57.
59.06 Americans
With Disabilities Act
. The
Landlord hereby represents that to the best of its knowledge that the Building
currently complies with the Americans With Disabilities Act, 42 USC §12101
et seq.
and
regulations currently promulgated thereunder ("ADA"). In the event the
representation contained in this subsection is materially untrue or incorrect
and as a result thereof the Tenant's use and enjoyment of the Leased Premises
is
materially and adversely affected, the Landlord shall be permitted thirty (30)
days after receipt of written notice from the Tenant to bring the Building
into
compliance with the ADA and to provide reasonable evidence of the same to the
Tenant; provided, however, in the event such compliance cannot reasonably be
completed or obtained within such thirty (30) days, the Landlord will not be
in
default hereunder provided the Landlord commences such corrective action within
said thirty (30) days and diligently pursues the same to
completion.
-32-
IN
WITNESS WHEREOF, Landlord and Tenant, intending to be legally bound hereby,
have
executed this Agreement of Lease as of the day and year first above
written.
|
LANDLORD:
|
DENVER
PLACE ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited
partnership
|
By:
|
Amerimar
Realty Management Co.-Colorado
|
|
By:
|
Amerimar
Realty Management Co.-Pennsylvania, its general
partner
|
|
By:
|
ARC-Management
Co., Inc., its general partner
|
| Date: ___________________ | By:_________________________________ |
| Xxxxx X. Xxxxxxxx, President |
TENANT:
RANCHER
ENERGY CORP., a Nevada corporation
| Date:______________________ |
By:____________________________________________________
|
| (Title) |
-33-
ADDENDUM
THIS
ADDENDUM, made as of the 30th day of October, 2006, is between Amerimar Realty
Management Co.-Colorado, as agent for DENVER PLACE ASSOCIATES LIMITED
PARTNERSHIP, a Delaware limited partnership ("Landlord") and
RANCHER
ENERGY CORP., a Nevada corporation ("Tenant"). Landlord and Tenant have executed
simultaneously with this Addendum that certain Denver Place Office Lease
(the
"Lease") pertaining to certain space in the building commonly known as Denver
Place and located at 000 Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx. In the event
of
any conflict between the provisions of this Addendum and the provisions of
the
other portions of the lease, the provisions of this Addendum shall control.
The
capitalized terms used herein and not defined herein shall have the same
meanings used in the other portions of the Lease. Landlord and Tenant hereby
agree that the Lease is amended and supplemented as follows:
60. TENANT
IMPROVEMENTS.
60.01
Landlord shall, at its own cost and expense, in a good and workmanlike manner,
cause the Leased Premises to be improved and completed in accordance with
the
plans and specifications (the “Final Layout Plans”) to be prepared by Xxxxx
Xxxxx Associates, incorporating the use of a reasonable quantity of Building
standard materials and finishes and mutually agreed upon by Landlord and
Tenant
which shall be attached hereto as Exhibit
A-1
upon
completion and agreement (such work being herein called "Landlord's Work").
In
the event Landlord and Tenant fail to mutually agree upon the Final Layout
Plans
on or before November 1, 2006 then either party may terminate this Lease
upon
delivery of written notice to the other party on or before November 1, 2006.
Landlord reserves the right: (i) to make substitutions of material or components
of equivalent grade and quality when and if any specified material or component
shall not be readily or reasonably available, and (ii) to make changes
necessitated by conditions met in the course of construction, provided that
Tenant's approval of any substantial change shall first be obtained (which
approval shall not be unreasonably withheld or delayed so long as there shall
be
general conformity with the Final Layout Plans). Tenant shall on or before
November 1, 2006 by
notice
to Landlord designate a single individual who Tenant agrees shall be available
to meet and consult with Landlord at the Leased Premises as Tenant’s
representative respecting the matters which are the subject of this Article
60
and who, as between Landlord and Tenant, shall have the power to legally
bind
Tenant, in making requests for changes, giving approval of plans or work,
giving
directions to Landlord or the like, under this Article 60; and any notice
or
delivery given to such person personally or at his place of business shall
have
the same effect as a notice or delivery given to Tenant.
60.02 Landlord
currently estimates that the Landlord’s Work can be completed to a level
permitting Tenant’s occupancy on or before November 10, 2006 provided the Final
Layout Plans are mutually agreed to by November 1, 2006. If Landlord shall,
for
any reason (including, without limitation, failure to complete the work,
if any,
required to be done by Landlord under this lease) fail to make available
to
Tenant possession of the Leased Premises on or before November 10, 2006 or
any
other date, Landlord shall not be subject to any liability for such failure
nor
for any failure to timely complete any work. Under such circumstances, Tenant’s
obligations to pay Base Rent and Tenant’s Share of Operating Expenses shall not
commence until the Commencement Date; and such failure to make available
to
Tenant possession of the Leased Premises on or before November 10, 2006 or
any
other date or to timely complete any work, shall not in any other way affect
the
validity or continuance of this Lease, nor the Term or the obligations of
Tenant
hereunder. Such deferral of rent shall be Tenant’s sole and exclusive right and
remedy with respect to any such failure. There shall be no deferral of rent,
however, if any such failure is caused in whole or part by any act or omission
of Tenant, its agents, servants, employees or contractors, which has the
effect
of hindering or delaying Landlord's delivery of possession or the timely
completion of any work to be done by Landlord (hereinafter a "Tenant Delay")
including, without limitation, (a) any delay caused by failure to mutually
agree
upon the Final Layout Plans on or before November 1, 2006, (b) any delay
which
is caused by changes in the work to be performed by Landlord in readying
the
Leased Premises for Tenant's occupancy, (c) any delay, not caused by Landlord,
in furnishing materials or procuring labor required to be furnished or procured
for the completion of the Leased Premises, or (d) any delay which is caused
by
any failure by Tenant, without regard to any grace period applicable thereto,
promptly to furnish to Landlord any required information, approval or consent
or
caused by any good faith reluctance on the part of Landlord to approve any
information required to be submitted by Tenant and approved by Landlord,
or (e)
any delay which is caused by the performance of any work or activity in the
Leased Premises by Tenant or any of its employees, agents or contractors,
including but not limited to any of the Tenant Installations (hereinafter
defined). The time for Landlord’s completion of Landlord’s Work will be extended
on a day-by-day basis for each day of delay attributable to a Tenant Delay.
Tenant also shall pay to Landlord, within 10 days after receipt of demand
made
from time to time, a sum equal to any additional cost to Landlord in completing
the Leased Premises resulting from any Tenant Delay.
-34-
60.03 Landlord
and Tenant acknowledge that the Leased Premises may be available for occupancy
and therefore the Commencement Date may occur prior to the completion of
Landlord’s Work. In the event Tenant occupies the Leased Premises prior to
completion of Landlord’s Work, Tenant agrees to permit Landlord and its
contractor, subcontractor and employees to access the Leased Premises at
all
times, and without further notice, to complete the Landlord’s Work, Landlord
agrees to use all reasonable efforts to minimize interference with Tenant’s use
of the Leased Premises and operation of its business during completion of
Landlord’s Work, but Tenant confirms its understanding and agreement that
completion of the Landlord’s Work may result in noise, vibration, dirt, dust and
other circumstances necessarily arising from such construction. Landlord
shall
have no liability (and Tenant shall not be entitled to claim damages or any
actual or constructive eviction, or right of offset or reduction in its rent
or
other monetary obligations) as a consequence of any disruption or interference
with Tenant’s use of the Leased Premises or conduct of its business throughout
the completion of such construction. In the event the Leased Premises are
available for Tenant’s occupancy prior to November 10, 2006, Tenant shall, at
its election, be permitted to occupy the Leased Premises subject to all the
terms and provisions of this Lease; provided, however, Tenant shall not be
obligated to pay Base Rent for that period of time occurring from the date
the
Leased Premises are ready for occupancy up to November 10, 2006.
60.04 Within
fifteen (15) days after the Landlord’s Work is completed, Landlord and Tenant
shall prepare a mutually agreed-upon list (“LW Punch List”) of items of the
Landlord’s Work that need to be corrected or repaired. Landlord agrees to cause
the items set forth in the LW Punch List to be corrected or repaired within
thirty (30) days after the date the LW Punch List is prepared. As used in
this
Section 60.04, “LW Punch List” items means minor details of construction or
decoration that do not interfere with the Tenant’s use and enjoyment of the
Leased Premises.
61. TENANT'S
RIGHT OF FIRST OFFER
61.01
Upon and subject to all the terms and conditions set forth in this Article
61,
Landlord hereby grants to Tenant a right of first offer (the "Right of First
Offer") covering that office space located upon the seventeenth (17th) floor
of
the Building, consisting of approximately 3,000 square feet of rentable area
and
which is depicted on Exhibit
A-2
attached
hereto (the "Offer Space"). The Right of First Offer shall be on the following
terms and conditions:
(a) If
Landlord shall desire to lease all or any portion of the Offer Space, as
evidenced by the initiation of formal negotiations with or the issuance of
a
proposal to a third party by or on behalf of Landlord covering any portion
of
the Offer Space, or Landlord's acceptance of a proposal from a third party
which
will have an anticipated occupancy date occurring within the first thirty-six
(36) months of the Term of this Lease, Landlord shall first offer to lease
such
part of the Offer Space (the "Designated Offer Space") to Tenant, by giving
written notice to Tenant. Such notice shall specify the date on which the
Designated Offer Space is expected to be available for Tenant's lease (the
"Scheduled Designated Offer Space Commencement Date"). Within seven (7) days
after Landlord gives Tenant such notice, Tenant shall, by written notice
to
Landlord (the "Offer Notice"), elect or decline to exercise it Right of First
Offer. If Tenant fails to deliver the Offer Notice to Landlord within such
period of seven (7) days, Tenant shall be deemed to have declined to exercise
its Right of First Offer. If Tenant declines or is deemed to have declined
to
exercise its Right of First Offer, Landlord thereafter shall have the right
to
lease such Designated Offer Space to any party upon such terms and conditions
and for such period or successive period of time as Landlord, in its sole
discretion, shall determine. Notwithstanding the foregoing, Tenant shall
have no
right to exercise the Right of First Offer (and, at Landlord's option, any
previous exercise of the Right of First Offer shall be null and void) if
at the
time Tenant first attempts to exercise the Right of First Offer, or at any
time
thereafter until the Designated Offer Space has been added to the Leased
Premises, Tenant is in default under this Lease. The Right of First Offer
shall
be subject and subordinate to any renewal, expansion and/or similar rights
granted to any tenant of the Building prior to the date of this Lease or
granted
to any tenant leasing any Designated Offer Space after the Tenant declines
or is
deemed to have declined to exercise its Right of First Offer. The Right of
First
Offer shall terminate in any event, upon the last day of the thirty-sixth
(36th)
month of the Term.
-35-
(b) In
the
event Tenant exercises the Right of First Offer, Tenant shall deliver to
Landlord the Tenant's proposed layout plans and specifications for such
Designated Offer Space (the “DOS Layout Plans”) within ten (10) business days
after delivery of the Offer Notice. The DOS Layout Plans shall provide for
a
level of improvements comparable to the level of the Landlord’s Work, shall
provide for the use of a reasonable quantity of Building standard materials
and
finishes, and shall be subject to Landlord’s approval. Upon the Offer Notice
being given and within such time as Landlord reasonably determines is necessary
to complete such Designated Offer Space for occupancy, Landlord shall cause
such
Designated Offer Space to be improved and completed in a manner consistent
with
the approved DOS Layout Plans (the "Designated Offer Space Improvements").
Landlord and Tenant acknowledge that Tenant will continue to occupy the Leased
Premises during construction of the Designated Offer Space Improvements and
Tenant confirms its understanding that completion of the Designated Offer
Space
Improvements may result in noise, vibration, dirt, dust and other circumstances
necessarily arising from such construction. Landlord shall have no liability
(and Tenant shall not be entitled to claim damages or any actual or constructive
eviction, or right of offset or reduction in its rent or other monetary
obligations) as a consequence of any disruption or interference with Tenant’s
use of the Leased Premises or conduct of its business throughout the completion
of such construction. The "Commencement Date" with respect to the Designated
Offer Space ("Designated Offer Space Commencement Date") shall be deemed
to be
that date which is the later of the Scheduled Designated Offer Space
Commencement Date or the first business day after the substantial completion
of
the Designated Offer Space Improvements.
(c) Landlord
shall afford Tenant and its employees and agents (each herein referred to
as a
"Tenant Party" and collectively the "Tenant Parties") access to the Designed
Offer Space at reasonable times prior to the occupancy of the Designed Offer
Space only in the presence of a representative of the Landlord, and at Tenant's
sole risk and expense, for the purposes of inspecting and verifying Landlord's
performance of the Designed Offer Space Improvements. Tenant shall advise
Landlord promptly of any objection to the construction of the Designed Offer
Space Improvements. Within fifteen (15) days after the Designed Offer Space
Improvements are completed, Landlord and Tenant shall prepare a mutually
agreed
upon list ("DOS Punch List") of items of the Designed Offer Space Improvements
that need to be corrected or repaired. Landlord agrees to cause the items
set
forth in the DOS Punch List to be corrected or repaired within thirty (30)
days
after the date the DOS Punch List is prepared. As used in this subsection
61.01(c), "DOS Punch List" items means minor details of construction or
decoration that do not interfere with Tenant's use and enjoyment of the
Desiganted Offer Space.
(d) The
Designated Offer Space shall be added to the Leased Premises, for all purposes,
as of the Designated Offer Space Commencement Date for the balance of the
Term
of this Lease and subject to and upon the following economic terms and all
of
the other terms, covenants and conditions of this Lease, except
that:
(i) in
the
event the Designated Offer Space Commencement Date occurs during the first
nine
(9) months of the Term of this Lease, Base Rent for the Designated Offer
Space
shall be at the same rate payable by Tenant for the Leased Premises on a
per
rentable square foot basis. For example purposes, if Tenant delivers its
Offer
Notice to Landlord on January 1, 2007 concerning the Designated Offer Space
consisting of 3,000 square feet of rentable area with a Designated Offer
Space
Commencement Date of the first day of the seventh (7th) month of the Term,
the
annual Base Rent for such Designated Offer Space shall be (w) $58,500.00
during
the seventh (7th) through the twelfth (12th) month of the Term (based on
a rate
of $19.50 per r.s.f. per annum); (x) $61,500.00 during the thirteenth (13th)
through the thirty-sixth (36th) month of the Term (based on a rate of $20.50
per
r.s.f. per annum), (y) $66,000.00 during the thirty-seventh (37th) through
the
forty-eighth (48th) month of the Term (based on a rate of $22.00 per r.s.f.
per
annum), and (z) $67,500.00 during the forty-ninth (49th) through the sixty-third
(63rd) month of the Term (based on a rate of $22.50 per r.s.f. per
annum).
-36-
(ii) in
the
event the Designated Offer Space Commencement Date occurs after the expiration
of the ninth (9th)
month
of the Term of this Lease, the Base rent shall be at the “Designated Offer Space
Fair Market Rental Rate” or “DOS FMRR” as defined in subsection 61.01(e)
below.
(iii) Landlord
shall make available to Tenant and Tenant shall have the non-assignable option
to rent from Operator (hereinafter defined) one (1) unreserved parking space
located within the Parking Garage (hereinafter defined) for every 1,000 square
feet of rentable area contained in the Designated Offer Space at the monthly
rate posted from time to time by the Operator and otherwise subject to the
terms
of the Parking Agreement attached hereto as Exhibit
D
(the
“Parking Agreement”). Tenant must exercise its option to rent any additional
parking spaces within thirty (30) days after the Designated Offer Space
Commencement Date.
(iv) Tenant's
Proportionate Share shall be increased to a new percentage, calculated in
accordance with the provisions of the Lease by increasing the rentable area
of
the Leased Premises by the number of square feet comprising the rentable
area of
such Designated Offer Space. Tenant's obligation to pay Base Rent and the
additional rent calculated pursuant to the Lease for the Designated Offer
Space
shall commence on the Designated Offer Space Commencement Date. Upon addition
of
the Designated Offer Space to the Leased Premises, the Lease shall be deemed
modified in the manner set forth above without the necessity of any further
agreement or document; provided, however, Landlord and Tenant agree to execute,
acknowledge and deliver an instrument evidencing such modification of the
Lease
to be prepared by Landlord.
(e) Designated
Offer Space Fair Market Rental Rate.
(i) For
the
purposes of this subsection 61.01(e), the term "Designated Offer Space Fair
Market Rental Rate" or "DOSFMRR" for the Designated Offer Space added to
the
Leased Premises pursuant to the terms of Section 61.01 shall mean an amount
per
square foot of the rentable area of the Designated Space, reasonably determined
by Landlord by reference to the market for comparable space (including the
extent and condition of the build-out) in similar and comparable office
buildings located in the downtown Denver central business district, that
a
willing landlord would offer and a willing tenant would accept in an arms
length
transaction for the lease of such office space
[A] commencing
on the Designated Offer Space Commencement Date,
[B] providing
for no free rent, a tenant finish allowance equal to the cost of completing
the
Designated Offer Space Improvements plus the value of the tenant improvements
in
place upon the Designated Offer Space prior to construction of the Designated
Offer Space Improvements to a prospective tenant, and
[C] otherwise
on all of the terms and conditions of this Lease, including the Tenant's
obligation to pay Additional Rent in accordance with the provisions of Article
54 using the Landlord's Operating Expense Contribution defined in subsection
54.02(c).
-37-
(ii) Landlord
shall deliver to Tenant its proposed DOSFMRR within thirty (30) days after
Landlord's receipt of the Offer Notice. Landlord and Tenant shall use reasonable
good faith efforts to mutually agree upon the DOSFMRR within sixty (60) days
after Landlord's receipt of the Offer Notice.
(iii) In
the
event Landlord and Tenant cannot agree upon the DOSFMRR within the sixty
(60)
day period described in subsection 61.01(e)(iii) the DOSFMRR shall be determined
by appraisal, said appraisal shall be conducted in accordance with the following
procedures:
[A] Within
twenty (20) days after receipt of a notice to appraise given by either party,
Landlord and Tenant shall each select a real estate appraiser, who shall
be a
member of the American Institute of Real Estate Appraisers, and who shall
have
at least five (5) years appraisal experience with respect to commercial and
office rental properties in the central business district of Denver, Colorado.
If one of the parties hereto fails to appoint an appraiser within the time
period prescribed, then the single appraiser appointed shall be the sole
appraiser and shall determine the DOSFMRR. If two appraisers are appointed,
they
shall have thirty (30) days from the date the second appraiser is appointed
(the
"30-day Appraisal Period") within which to agree upon the DOSFMRR. The
appraiser(s) shall be advised that the determination of the DOSFMRR shall
be
governed by the definitions of same set forth in this Lease. The determination
by the two appraisers of the DOSFMRR shall be binding on Landlord and
Tenant.
[B] If
the
two appraisers appointed by the parties hereto are unable to agree upon the
DOSFMRR within the 30-day Appraisal Period, then said appraisers shall attempt,
within ten (10) days after the expiration of the 30-day Appraisal Period,
to
select a third appraiser (the "Third Appraiser"). If the first two appraisers
are unable to agree on the Third Appraiser within the ten (10) day period
prescribed in the immediately preceding sentence, either Landlord or Tenant,
by
giving ten (10) days notice to the other party hereto, shall request that
the
presiding judge of the District Court for the City and County of Denver,
State
of Colorado select the Third Appraiser. The Third Appraiser, however selected,
shall meet the qualifications set forth in subsection 61.01(e)(iii)[A] above,
and shall be a person who has not previously acted in any capacity for either
Landlord or Tenant.
[C] On
or
before the tenth (10th) day after the Third Appraiser is appointed or selected,
the first two appraisers shall each simultaneously submit in sealed envelopes
his/her opinion of the fair market base rent at issue, together with any
written
arguments or data in support of said opinion(s), to the Third Appraiser.
Within
thirty (30) days after he/she is appointed or selected, the Third Appraiser
shall determine the DOSFMRR by selecting one of the opinions submitted by
the
first two appraisers. The selection of the Third Appraiser shall be binding
on
Landlord and Tenant.
(iv) Each
party hereto shall pay the fees and expenses of the appraiser selected by
such
party, and the fees and expenses of the Third Appraiser shall be borne equally
by Landlord and Tenant.
62. TENANT’S
RIGHT TO EXPAND LEASED PREMISES
62.01 Contiguous
Available Space.
Landlord hereby grants Tenant a one-time option (the "Right to Expand Leased
Premises"), exercisable only during that time period commencing the first
day of
the twenty-fourth (24th)
month
of the Term and ending on the last day of the thirty-sixth (36th)
month
of the Term (such time period being referred to herein as the “Additional Space
Time Period”) expand the rentable area of the Leased Premises pursuant to this
Article 62. At any time during the Additional Space Time Period, Tenant may
notify Landlord in writing (the “Expansion Request”) of Tenant’s desire to
expand the Leased Premises to a rentable area of not less than the greater
of
9,000 square feet or 3,000 square feet greater than the rentable area of
the
Leased Premises at the time of Tenant’s delivery of the Expansion Notice and not
greater than 12,382 square feet. Tenant’s Expansion Notice shall specify the
total rentable area of the Leased Premises desired by Tenant and specifying
the
date (the “Expansion Date") by which Tenant wishes to expand the area of the
Leased Premises (provided, however, that Tenant may not specify an Expansion
Date which occurs less than one hundred eighty (180) days nor more than two
hundred forty (240) days after the date of the delivery of the Expansion
Request
to Landlord). If no Expansion Date is specified in the Expansion Request,
then
Tenant shall be deemed to have specified as the Expansion Date whatever date
occurs exactly one hundred eighty (180) days after the date the Expansion
Request is received by Landlord. Within ten (10) business days after Landlord's
receipt of the Expansion Request Landlord shall attempt to locate available
office space ("Available Space") on the seventeenth (17th)
floor
of the Building contiguous to the Leased Premises to accommodate the Expansion
Request. If, at the time Landlord receives the Expansion Request, there is
Available Space located on the seventeenth (17th)
floor
of the Building contiguous to the Leased Premises (and which is and will
continue to be available, and which have not been leased, promised or optioned
to anyone else on or subsequent to the Expansion Date designated in the
Expansion Request), then Landlord shall, within ten (10) business days after
Landlord receives the Expansion Request, deliver to Tenant a written description
(a "Contiguous Space Proposal") identifying the Available Space (the "Contiguous
Available Space"). Tenant shall thereupon have five (5) business days to
elect,
by written notice to Landlord (the "Contiguous Space Acceptance"), to exercise
Tenant's Right to Expand the Leased Premises with respect to the Contiguous
Additional Space identified in the Contiguous Space Proposal. If Tenant fails
to
notify Landlord in writing, within five (5) business days after the Contiguous
Space Proposal is delivered to Tenant, that Tenant has elected to exercise
its
Right to Expand the Leased Premises with respect to the Contiguous Additional
Space, then Tenant shall be deemed to have irrevocably declined to exercise
its
right and the right granted to Tenant in this Article 62 shall terminate
and be
deemed null, void and of no further effect. However, if instead Tenant timely
notifies Landlord in writing of Tenant's willingness to accept and lease
that
particular Contiguous Additional Space commencing upon the Expansion Date
properly specified in the Expansion Request, then Tenant shall be deemed
to have
exercised its Right to Expand the Leased Premises with respect to the Contiguous
Additional Space. In the event Tenant exercises its Right to Expand the Leased
Premises with respect to the Contiguous Additional Space, the following
provisions shall apply:
-38-
(a) Contiguous
Additional Space Preliminary Information and Plans.
Landlord shall deliver to Tenant no later than five (5) business days after
Landlord's receipt of the Contiguous Space Acceptance for use by Tenant,
such
plan or plans and other information with respect to the Contiguous Additional
Space and the Building as Tenant may reasonably require for proper and
expeditious preparation of Tenant's space plans.
(b) Improvement
of Contiguous Additional Space.
(i) Tenant's
CAS Layout Plans.
Tenant
shall prepare and deliver to Landlord not later than twenty (20) days after
delivery of the Contiguous Space Acceptance one mylar and two black line
prints
of complete and final architectural working drawings (which shall be 1/8"
scale), three copies of all specifications and two non-copyrighted CADD disks
(collectively referred to as the "CAS Layout Plans"), prepared by an architect
or space planner selected by Tenant and reasonably acceptable to Landlord
providing for Tenant's proposed layout for the construction and finishing
of
improvements to the Contiguous Additional Space for Tenant's occupancy. Tenant's
CAS Layout Plans shall (i) include the layout of Tenant's furniture, fixtures
and equipment, (ii) include electrical and heat specifications for all of
Tenant's fixtures and equipment, (iii) be signed and sealed by an architect
licensed by and registered in the State of Colorado ("Tenant's Architect"),
and
(iv) conform to all applicable laws and requirements of public authorities
and
insurance underwriters' requirements. Tenant's CAS Layout Plans shall be
subject
to Landlord's review and written approval, which approval shall not be
unreasonably withheld or delayed (and may be disapproved by Landlord only
in the
event that the proposed Tenant's CAS Layout Plans violate any governmental
regulations; adversely affect the Building's structure, electric, or mechanical
systems (in Landlord's sole opinion with respect to adverse affect on electric
and mechanical systems); intrude on the Building's Common Area; or are visible
from the Building's Common Area), and such plans shall be deemed modified
to
take account of any changes reasonably required by Landlord and approved
by
Tenant (which approval shall not be unreasonably withheld or delayed). Landlord
shall notify Tenant whether or not Tenant's CAS Layout Plans are approved
within
five (5) business days after their delivery to Landlord, provided that Tenant's
CAS Layout Plans shall be deemed to be approved by Landlord unless Landlord
shall have notified Tenant in writing to the contrary within five (5) business
days of their receipt by Landlord stating the reason for disapproval of such
Tenant's CAS Layout Plans. Tenant's CAS Layout Plans as approved by Landlord
and
with the aforesaid modifications, if any, are herein called the "Final CAS
Layout Plans". Concurrently with delivery of Tenant's CAS Layout Plans to
Landlord, Tenant shall by notice to Landlord in writing designate a single
individual who Tenant agrees shall be available to meet and consult with
Landlord at the Contiguous Additional Space as Tenant's representa-tive
respecting the matters which are the subject of this Section 62.01 and who,
as
between Landlord and Tenant, shall have the power to legally bind Tenant,
in
making requests for changes, giving approval of plans or work, giving directions
to Landlord or the like, under this Section 62.01; and any notice or delivery
given to such person personally or at his place of business shall have the
same
effect as a notice or delivery given to Tenant.
(ii) CAS
Engineering Plans.
Landlord shall direct its engineers to prepare at Tenant's expense and, not
later than fifteen (15) business days after approval or deemed approval by
Landlord of the Final CAS Layout Plans, shall deliver to Tenant mechanical,
electrical and fire protection engineering drawings and specifications ("CAS
Engineering Plans"), based on the Final CAS Layout Plans (and such pertinent
additional information as shall have been submitted by Tenant with Tenant's
CAS
Layout Plans or as requested by Landlord), as may be required to complete
the
Contiguous Additional Premises in accordance with the Final CAS Layout Plans.
As
soon as reasonably possible, and in any event within five (5) days after
submission to Tenant by Landlord of the CAS Engineering Plans, Tenant shall
give
its written approval thereof if they are in substantial conformity with or
a
direct extension of the Final CAS Layout Plans, otherwise such approval shall
not be unreasonably withheld; however, the CAS Engineering Plans shall be
deemed
to have been approved by Tenant unless Tenant shall have notified Landlord
in
writing to the contrary within five (5) days of their receipt by Tenant,
stating
in which respects such plans fail to conform with the Final CAS Layout Plans.
The CAS Engineering Plans shall be deemed to have been approved by Tenant
if
they are returned by Tenant with specified changes noted and such changes
are
made, whether or not approval is thereafter specifically noted on the CAS
Engineering Plans so changed.
-39-
(iii) Completion
by Landlord.
On or
before the date ("Scheduled CAS Commencement Date") which occurs ninety (90)
days after the later of [A] the date the CAS Engineering Plans are completed
and
[B] the date the Contiguous Additional Space is available for commencement
of
the CAS Tenant Work (hereinafter defined), Landlord shall, in a good and
workmanlike manner, cause the Contiguous Additional Space to be improved
and
completed in accordance with the CAS Final Layout Plans and the CAS Engineering
Plans (herein referred to together with architectural and engineering services
as the "CAS Tenant Work") (such plans are hereinafter together called the
"CAS
Tenant Construction Plans"). Landlord reserves the right however: [A] to
make
substitutions of material or components of equivalent grade and quality when
and
if any specified material or component shall not be readily or reasonably
available, and [B] to make changes necessitated by conditions met in the
course
of construction. All CAS Tenant Work shall be furnished, installed and performed
by Landlord for an amount (hereinafter called the "CAS Tenant Costs") equal
to
Landlord's out-of-pocket contract or purchase price or prices to be paid
by
Landlord to architects, engineers, material suppliers, subcontractors,
independent contractors (including Landlord's general contractor) and/or
other
sources for the material, labor and services applied to the CAS Tenant Work,
plus applicable sales taxes, plus Landlord's administrative and supervision
fee
equal to five percent (5%) of such out-of-pocket contract or purchase price
or
prices paid by Landlord. Landlord agrees to have the CAS Tenant Work
competitively bid and shall enter into a contract for the completion of the
CAS
Tenant Work with either the general contractor submitting the lowest bid
or a
general contractor submitting a bid within four percent (4%) of the lowest
bid.
(iv) Access;
Acceptance of Work.
Landlord shall afford Tenant and Tenant Parties access to the Contiguous
Additional Space at reasonable times prior to the occupancy of the Contiguous
Additional Space only in the presence of a representative of the Landlord,
and
at Tenant's sole risk and expense, for the purposes of inspecting and verifying
Landlord's performance of the CAS Tenant Work. Tenant shall advise Landlord
promptly of any objection to the construction of the CAS Tenant Work. Landlord
shall provide Tenant and its agents with access to the Contiguous Additional
Space at least five (5) days prior to the CAS Commencement Date for the purpose
of installing furniture and equipment (the "CAS Tenant Installations"). Tenant
shall not interrupt the completion of the CAS Tenant Work during completion
of
CAS Tenant Installations. Tenant shall indemnify and hold Landlord and its
members, agents, servants, employees and general contractor (each herein
referred to as an "CAS Tenant Work Indemnified Party") harmless from any
and all
claims, losses, damages, fines and penalties incurred by a CAS Tenant Work
Indemnified Party including, but not limited to, reasonable attorneys' fees
that
in any way result from a Tenant Party's negligent and/or willfully wrongful
activities within the Contiguous Additional Space during completion of the
CAS
Tenant Work or CAS Tenant Installations. Within fifteen (15) days after the
CAS
Tenant Work is completed, Landlord and Tenant shall prepare a mutually agreed
upon list ("CAS Punch List") of items of the CAS Tenant Work that needs to
be
corrected or repaired. Landlord agrees to cause the items set forth in the
CAS
Punch List to be corrected or repaired within thirty (30) days after the
date
the CAS Punch List is prepared. As used in this subsection 62.01(b)(iv),
"CAS
Punch List" items means minor details of construction or decoration that
do not
interfere with Tenant's use and enjoyment of the Contiguous Additional Space.
Landlord
and Tenant acknowledge that Tenant will continue to occupy the Leased Premises
during construction of the CAS Tenant Work and Tenant confirms its understanding
that completion of the CAS Tenant Work may result in noise, vibration, dirt,
dust and other circumstances necessarily arising from such construction.
Landlord shall have no liability (and Tenant shall not be entitled to claim
damages or any actual or constructive eviction, or right of offset or reduction
in its rent or other monetary obligations) as a consequence of any disruption
or
interference with Tenant’s use of the Leased Premises or conduct of its business
throughout the completion of such construction.
-40-
(v) Payment
of CAS Tenant Costs.
Landlord shall provide an allowance for the payment of the CAS Tenant Costs
in
an amount equal to the product of [A] $10.00 multiplied by [B] the number
of
square feet comprising the rentable area of the Contiguous Additional Space
(the
"CAS Allowance"). Tenant shall pay for all CAS Tenant Costs exceeding the
CAS
Allowance within ten (10) days after Landlord's delivery of written request
for
payment; provided, however, that Landlord may require that, before Landlord
commences the CAS Tenant Work, Tenant to pay to Landlord fifty percent (50%)
of
the amount that the CAS Tenant Costs exceed the CAS Allowance as reasonably
estimated by Landlord (the "CAS Deposit"). The CAS Deposit shall be applied
against the last completed CAS Tenant Work. In the event an unused balance
remains from either the CAS Deposit and/or the CAS Allowance after completion
of
all CAS Tenant Work and the payment of all CAS Tenant Costs, Landlord agrees
to
pay to Tenant the unused balance of the CAS Deposit within thirty (30) days
after the CAS Tenant Work is completed. Tenant shall not be entitled to payment
of any unused remaining CAS Allowance after the payment of CAS Tenant Costs.
Tenant shall be deemed to have waived any such excess CAS
Allowance.
(vi) Delivery
of Possession of Contiguous Additional Space.
Landlord shall cause the CAS Tenant Work to be completed and shall deliver
actual possession of the Contiguous Additional Space to Tenant on or before
the
Scheduled CAS Commencement Date. If Landlord shall, for any reason (including,
without limitation, failure to complete the work, if any, required to be
done by
Landlord under this Lease), fail to make available to Tenant possession of
the
Contiguous Additional Space on or before the Scheduled CAS Commencement Date
or
any other date, Landlord shall not be subject to any liability for such failure
nor for any failure to timely complete any work. Under such circumstances,
all
of Tenant's rights and obligations hereunder with respect to the Contiguous
Additional Space, including, but not limited to, its obligations to pay the
Base
Rent and Additional Rent attributable to the Contiguous Additional Space
shall
not commence until the date ("CAS Commencement Date"), the Contiguous Additional
Space is made available for Tenant's occupancy, and such failure to make
available to Tenant possession of the Contiguous Additional Space on or before
the Scheduled CAS Commencement Date or any other date or to timely complete
any
work, shall not in any other way affect the validity or continuance of this
Lease, or the Term, or the obligations of Tenant hereunder. Such deferral
of
rent shall be Tenant's sole and exclusive right and remedy with respect to
any
such failure. There shall be no deferral of rent, however, to the extent
that
such failure is caused by any act or omission of Tenant, its agents, servants,
employees or contractors and which would not have otherwise occurred, which
has
the effect of delaying Landlord's delivery of possession or the timely
com-pletion of any work to be done by Landlord (hereinafter a "CAS Tenant
Delay") including, without limitation, [A] any delay which is caused by changes
in the work to be performed by Landlord in readying the Contiguous Additional
Space for Tenant's occupancy, [B] any delay which is caused by any failure
by
Tenant to furnish to Landlord any required plan, information, approval or
consent within the period of time required therefor by the terms of this
Lease
or caused by any reasonable reluctance on the part of Landlord to approve
any
plan or other information required to be submitted by Tenant and approved
by
Landlord or [C] any delay which is caused by the performance of any work
or
activity in the Contiguous Additional Space by Tenant or any of its employees,
agents or contractors. Tenant also shall pay to Landlord, within ten (10)
days
after receipt of demand made from time to time, a sum equal to any additional
cost to Landlord in completing the CAS Tenant Work resulting from any CAS
Tenant
Delay to the extent that the same is not covered by the CAS
Allowance.
(c) Tenant's
Default.
In no
event shall Tenant have the right to exercise this Right to Expand the Leased
Premises at any time that Tenant is in default under the Lease. Moreover,
if
Tenant defaults under this Lease at any time after it has exercised this
Right
to Expand the Lease Premises but before the Contiguous Available Space is
added
to this Lease pursuant to the terms of this Section 62.01, then such exercise
shall, at Landlord's option, be deemed null and void, and neither Landlord
nor
Tenant shall have any further rights or obligations with respect to such
exercise.
(d) Addition
of Contiguous Available Space.
The
Contiguous Available Space shall be added to the Leased Premises, for all
purposes, as of such CAS Commencement Date for the balance of the Term of
this
Lease and subject to and upon the following economic terms and all of the
other
terms, covenants and conditions of this Lease. The annual Base Rent for the
Contiguous Available Space designated shall be an amount equal to the FMRR
for
the Contiguous Available Space determined in accordance with the provisions
of
Section 62.03 below, provided that the Base Rent for the Contiguous Available
Space shall not be less than the Base Rent for the Leased Premises on a per
square foot of rentable area basis as provided on the Facing Page of this
Lease.
Annual Base Rent for the Contiguous Available Space shall be payable in equal
monthly installments, in advance, on the tenth day of each month following
the
CAS Commencement Date, without any demand or setoff. In the event the CAS
Commencement Date occurs on a day other than the first day of a month Tenant
shall pay the Base Rent for such partial first month of prorata on the basis
of
a thirty (30) day month within ten (10) days after the CAS Commencement Date.
Tenant's Share of Operating Expenses shall be increased by a fraction in
which
the numerator is the total number of square feet comprising the rentable
area of
the Contiguous Available Space and the denominator of which is 754,288. Tenant's
obligation to pay Base Rent and the Additional Rent for the Contiguous Available
Space shall commence on the CAS Commencement Date. Landlord shall make available
to Tenant and Tenant shall have the non-assignable option to rent from Operator
one (1) unreserved parking space located in the Parking Garage for every
1,000
square feet of rentable area contained in the Contiguous Available Space
at the
monthly rate posted from time to time by the Operator and otherwise subject
to
the terms of the Parking Agreement. Tenant must exercise its option within
thirty (30) days after the CAS Commencement Date. Upon addition of the
Contiguous Available Space to the Leased Premises, this Lease shall be deemed
modified in the manner set forth above without the necessity of any further
agreement or document; provided, however, Landlord and Tenant agree to execute,
acknowledge and deliver an instrument evidencing such modification of this
Lease
to be prepared by Landlord.
-41-
62.02 Substitute
Space.
In the
event Landlord is not able to identify any Contiguous Available Space to
satisfy
Tenant's Expansion Request within ten (10) business days after Landlord's
receipt of the Expansion Request, Landlord shall within twenty (20) days
after
the date of Landlord's receipt of the Expansion Request, use reasonable efforts
to identify and notify Tenant in writing (the "Substitute Space Proposal")
of
contiguous office space in the Building ("Substitute Space") which might
satisfy
Tenant's desire for expansion space and replace the initial Leased Premises
described in Section 1.01, together with any Designated Offer Space added
to the
Leased Premises pursuant to Article 61 (the "Existing Leased Premises") with
contiguous Office Space located either within that portion of the Complex
known
as the South Tower or on the sixteenth (16th)
to
twenty-third (23rd)
floors
of that portion of the Complex known as the North Tower. Tenant shall have
ten
(10) business days after the date Tenant receives the Substitute Space Proposal
to elect, by written notice to Landlord (the "Substitute Space Acceptance")
to
exercise Tenant's Right to Expand the Leased Premises with respect to the
Substitute Space. Notwithstanding the foregoing, Tenant shall have no right
to
exercise its Right to Expand the Leased Premises with respect to the Substitute
Space (and, at Landlord's Option, any previous exercise of that right shall
be
null and void if at the time Tenant attempts to exercise that right, or at
any
time thereafter until the Substitute Space has been substituted for the Leased
Premises, this Lease or the Term has already expired or otherwise been
terminated for any reason, or Tenant defaults in the performance of any of
its
obligations under this Lease. If Tenant fails to notify Landlord in writing,
within ten (10) business days after the date the Substitute Space Proposal
is
delivered to Tenant, that Tenant has elected to exercise its Right to Expand
the
Leased Premises with respect to the Substitute Space, then Tenant shall be
deemed to have irrevocably declined to exercise its right and the right granted
to Tenant in this Article 62 shall terminate and be deemed null, void and
of no
further effect. In the event Landlord is unable to provide a Substitute Space
Proposal within the time period provided above in this Section 62.02, Tenant
shall have the right to elect to terminate this Lease on a date selected
by
Tenant (the "Early Termination Date") which shall be the ninth (9th)
day of
a calendar month occurring not less than four (4) months nor more than nine
(9)
months after the date the Substitute Space Proposal was due, provided that:
(i)
Tenant has entered into a lease agreement (the "Replacement Lease") with
a
landlord not affiliated with Tenant for the lease of office space in a building
located in the downtown Denver central business district with a rentable
area
that is equal to or greater than the rentable area of the Substitute Space
for a
term of not less than five (5) years, (ii) Tenant delivers written notice
("Early Termination Notice") to Landlord electing to exercise its right of
termination pursuant to this Section 62.02 specifying the Early Termination
Date
within sixty (60) days after the date Tenant received the Substitute Space
Proposal; and (iii) Tenant shall deliver a true and complete copy of the
Replacement Lease to Landlord with the Early Termination Notice. In the event
Tenant exercises its right to terminate the Lease in compliance with the
provisions of this Section 62.02, this Lease shall terminate on the Early
Termination Date as if such date was the Termination Date, Tenant shall
completely vacate and redeliver the Leased Premises to Landlord in accordance
with the provisions of Section 11.03 on or before the Early Termination Date,
and Landlord and Tenant shall be released from their respective obligations
under this Lease, except for those obligations which expressly survive
termination. In the event Tenant exercises its right to lease the Substitute
Space, the following provisions shall apply:
-42-
(a) Substitute
Space Preliminary Information and Plans.
Landlord shall deliver to Tenant no later than five (5) business days after
Landlord's receipt of the Substitute Space Acceptance for use by Tenant,
such
plan or plans and other information with respect to the Substitute Space
and the
Building as Tenant may reasonably require for proper and expeditious preparation
of Tenant's space plans.
(b) Improvement
of Substitute Space.
(i) Tenant's
Substitute Space Plans.
Tenant
shall prepare and, not later than twenty (20) days after delivery of the
Substitute Space Acceptance, shall deliver to Landlord one mylar and two
black
line prints of complete and final architectural working drawings (which shall
be
1/8" scale), three copies of all specifications and two non-copyrighted CADD
disks (collectively referred to as the "SS Plans"), prepared by Tenant's
Architect providing for Tenant's proposed layout for the construction and
finishing of improvements to the Substitute Space for Tenant's occupancy.
Tenant's SS Layout Plans shall (i) include the layout of Tenant's furniture,
fixtures and equipment, (ii) include electrical and heat specifications for all
of Tenant's fixtures and equipment, (iii) be signed and sealed by Tenant's
Architect, and (iv) conform to all applicable laws and requirements of public
authorities and insurance underwriters' requirements. Tenant's SS Layout
Plans
shall be subject to Landlord's review and written approval, which approval
shall
not be unreasonably withheld or delayed (and may be disapproved by Landlord
only
in the event that the proposed Tenant's SS Layout Plans violate any governmental
regulations; adversely affect the Building's structure, electric, or mechanical
systems (in Landlord's sole opinion with respect to adverse affect on electric
and mechanical systems); intrude on the Building's Common Area; or are visible
from the Building's Common Area), and such plans shall be deemed modified
to
take account of any changes reasonably required by Landlord and approved
by
Tenant (which approval shall not be unreasonably withheld or delayed). Landlord
shall notify Tenant whether or not Tenant's SS Layout Plans are approved
within
five (5) business days after their delivery to Landlord, provided that Tenant's
SS Layout Plans shall be deemed to be approved by Landlord unless Landlord
shall
have notified Tenant in writing to the contrary within five (5) business
days of
their receipt by Landlord stating the reason for disapproval of such Tenant's
SS
Layout Plans. Tenant's SS Layout Plans as approved by Landlord and with the
aforesaid modifications, if any, are herein called the "Final SS Layout Plans".
Tenant's SS Layout Plans shall be subject to Landlord's review and written
approval, which approval shall not be unreasonably withheld or delayed (and
may
be disapproved by Landlord only in the event that the proposed Tenant's SS
Layout Plans violate any governmental regulations; adversely affect the
Building's structure, electric, or mechanical systems (in Landlord's sole
opinion with respect to adverse affect on electric and mechanical systems);
intrude on the Building's Common Area; or are visible from the Building's
Common
Area), and such plans shall be deemed modified to take account of any changes
reasonably required by Landlord and approved by Tenant (which approval shall
not
be unreasonably withheld or delayed). Landlord shall notify Tenant whether
or
not the Tenant SS Layout Plans are approved within five (5) business days
after
their delivery to Landlord, provided that Tenant's SS Layout Plans shall
be
deemed to be approved by Landlord unless Landlord shall have notified Tenant
in
writing to the contrary within five (5) business days of their receipt by
Landlord stating the reason for disapproval of such Tenant's SS Layout Plans.
Tenant's SS Layout Plans as approved by Landlord and with the aforesaid
modifications, if any, are herein called the "Final SS Layout Plans".
Concurrently with delivery of Tenant's SS Plans to Landlord, Tenant shall
by
notice to Landlord in writing designate a single individual who Tenant agrees
shall be available to meet and consult with Landlord at the Substitute Space
as
Tenant's representa-tive respecting the matters which are the subject of
this
Section 62.02 and who, as between Landlord and Tenant, shall have the power
to
legally bind Tenant, in making requests for changes, giving approval of plans
or
work, giving directions to Landlord or the like, under this Section 62.02,
and
any notice or delivery given to such person personally or at his place of
business shall have the same effect as a notice or delivery given to
Tenant.
-43-
(ii) SS
Engineering Plans.
Landlord shall direct its engineers to prepare at Tenant's expense and, not
later than fifteen (15) business days after approval or deemed approval by
Landlord of the Final SS Layout Plans, shall deliver to Tenant mechanical,
electrical and fire protection engineering drawings and specifications ("SS
Engineering Plans"), based on the Final SS Layout Plans (and such pertinent
additional information as shall have been submitted by Tenant with Tenant's
SS
Layout Plans or as requested by Landlord), as may be required to complete
the
Substitute Space in accordance with the Final SS Layout Plans. As soon as
reasonably possible, and in any event within five (5) days after submission
to
Tenant by Landlord of the SS Engineering Plans, Tenant shall give its written
approval thereof if they are in substantial conformity with or a direct
extension of the Final SS Layout Plans, otherwise such approval shall not
be
unreasonably withheld; however, the SS Engineering Plans shall be deemed
to have
been approved by Tenant unless Tenant shall have notified Landlord in writing
to
the contrary within five (5) days of their receipt by Tenant, stating in
which
respects such plans fail to conform with the Final SS Layout Plans. The SS
Engineering Plans shall be deemed to have been approved by Tenant if they
are
returned by Tenant with specified changes noted and such changes are made,
whether or not approval is thereafter specifically noted on the SS Engineering
Plans so changed.
(iii) Completion
by Landlord.
Landlord shall, at Tenant's expense (subject to the SS Allowance (hereinafter
defined)), in a good and workmanlike manner, cause the Substitute Space to
be
improved and completed in accordance with the Final SS Layout Plans and the
SS
Engineering Plans (herein referred to together with architectural and
engineering services as the "SS Tenant Work") (such plans are hereinafter
together called the "SS Construction Plans"). Landlord reserves the right
however: (i) to make substitutions of material or components of equivalent
grade
and quality when and if any specified material or component shall not be
readily
or reasonably available, and (ii) to make changes necessitated by conditions
met
in the course of construction. The SS Tenant Work shall be furnished, installed
and performed by Landlord at Tenant's cost for an amount (hereinafter called
the
"SS Tenant Costs") equal to Landlord's out of pocket contract or purchase
price
or prices to be paid by Landlord to architects, engineers, material suppliers,
subcontractors, independent contractors and/or other sources for the material,
labor and services applied to the SS Tenant Work, plus applicable sales taxes,
plus Landlord's administrative and supervision fee equal to five percent
(5%) of
such out-of-pocket contract or purchase price or prices paid by Landlord.
Landlord agrees to have the SS Tenant Work competitively bid and shall enter
into a contract for the completion of the SS Tenant Work with either the
general
contractor submitting the lowest bid or a general contractor submitting a
bid
within four percent (4%) of the lowest bid.
(iv) Access;
Acceptance of Work.
Landlord shall afford Tenant Parties access to the Substitute Space at
reasonable times prior to the occupancy of the Substitute Space only in the
presence of a representative of the Landlord, and at Tenant's sole risk and
expense, for the purposes of inspecting and verifying Landlord's performance
of
the SS Tenant Work. Tenant shall advise Landlord promptly of any objection
to
the construction of the SS Tenant Work. Landlord shall provide Tenant and
its
agents with access to the Substitute Space at least five (5) days prior to
the
SS Commencement Date for the purpose of installing furniture and equipment
(the
"SS Tenant Installations"). Tenant shall not interrupt the completion of
the SS
Tenant Work during completion of SS Tenant Installations. Tenant shall indemnify
and hold Landlord and its members, agents, servants, employees and general
contractor (each herein referred to as an "SS Tenant Work Indemnified Party")
harmless from any and all claims, losses, damages, fines and penalties incurred
by an SS Tenant Work Indemnified Party including, but not limited to, reasonable
attorneys' fees that in any way result from a Tenant Party's negligent and/or
willfully wrongful activities within the Substitute Space during completion
of
the SS Tenant Work or SS Tenant Installations. Within fifteen (15) days after
the SS Tenant Work is completed, Landlord and Tenant shall prepare a mutually
agreed upon list ("SS Punch List") of items of the SS Tenant Work that needs
to
be corrected or repaired. Landlord agrees to cause the items set forth in
the SS
Punch List to be corrected or repaired within thirty (30) days after the
date
the SS Punch List is prepared. As used in this subsection 62.02(b)(iv), "SS
Punch List" items means minor details of construction or decoration that
do not
interfere with Tenant's use and enjoyment of the Substitute Space.
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(v) Payment
of SS Tenant Costs.
Landlord shall provide an allowance for the SS Tenant Work up to an amount
equal
to the product of (i) $15.00 multiplied by (ii) the number of square feet
comprising the rentable area of the Substitute Space (the “SS Allowance”).
Tenant shall pay for all SS Tenant Costs exceeding the SS Allowance (such
difference is herein called the “Excess SS Tenant Costs”) within ten (10) days
after Landlord's delivery of written request for payment; provided, however,
that Landlord may require that, before Landlord commences the SS Tenant Work,
Tenant to pay to Landlord fifty percent (50%) of the amount that the Excess
SS
Tenant Costs as reasonably estimated by Landlord (the "SS Deposit"). The
SS
Deposit shall be applied against the last completed SS Tenant Work. In the
event
an unused balance remains from the SS Deposit after completion of all SS
Tenant
Work and the payment of all SS Tenant Costs, Landlord agrees to pay to Tenant
the unused balance of the SS Deposit within thirty (30) days after the SS
Tenant
Work is completed. Tenant shall not be entitled to receive any unused portion
of
the SS Allowance.
(vi) Delivery
of Possession of Substitute Space.
Landlord shall cause the SS Tenant Work to be completed and shall deliver
actual
possession of the Substitute Space to Tenant on or before the Scheduled SS
Commencement Date. If Landlord shall, for any reason (including, without
limitation, failure to complete the work, if any, required to be done by
Landlord under this Lease), fail to make available to Tenant possession of
the
Substitute Space on or before the Scheduled SS Commencement Date or any other
date, Landlord shall not be subject to any liability for such failure nor
for
any failure to timely complete any work. Under such circumstances, all of
Tenant's rights and obligations hereunder with respect to the Substitute
Space,
including, but not limited to, its obligations to pay the Base Rent and
Additional Rent attributable to the Substitute Space shall not commence until
the date ("SS Commencement Date"), the Substitute Space is made available
for
Tenant's occupancy, and such failure to make available to Tenant possession
of
the Substitute Space on or before the Scheduled SS Commencement Date or any
other date or to timely complete any work, shall not in any other way affect
the
validity or continuance of this Lease, or the Term, or the obligations of
Tenant
hereunder. Such deferral of rent shall be Tenant's sole and exclusive right
and
remedy with respect to any such failure. There shall be no deferral of rent,
however, to the extent that such failure is caused by any act or omission
of
Tenant, its agents, servants, employees or contractors and which would not
have
otherwise occurred, which has the effect of delaying Landlord's delivery
of
possession or the timely com-pletion of any work to be done by Landlord
(hereinafter a "SS Tenant Delay") including, without limitation, [A] any
delay
which is caused by changes in the work to be performed by Landlord in readying
the Substitute Space for Tenant's occupancy, [B] any delay which is caused
by
any failure by Tenant to furnish to Landlord any required plan, information,
approval or consent within the period of time required therefor by the terms
of
this Lease or caused by any reasonable reluctance on the part of Landlord
to
approve any plan or other information required to be submitted by Tenant
and
approved by Landlord or [C] any delay which is caused by the performance
of any
work or activity in the Substitute Space by Tenant or any of its employees,
agents or contractors. Tenant also shall pay to Landlord, within ten (10)
days
after receipt of demand made from time to time, a sum equal to any additional
cost to Landlord in completing the SS Tenant Work resulting from any SS Tenant
Delay.
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(c) Tenant's
Default.
In no
event shall Tenant have the right to exercise this Right to Lease Additional
Space at any time that Tenant is in default under the Lease. Moreover, if
Tenant
defaults under this Lease at any time after it has exercised this Right to
Lease
Additional Space but before the Substitution Space is substituted for the
Leased
Premises pursuant to the terms of this Section 62.02, then such exercise
shall,
at Landlord's option, be deemed null and void, and neither Landlord nor Tenant
shall have any further rights or obligations with respect to such
exercise.
(d) Substitution
of Substitute Space.
The
Substitute Space shall be substituted for the Existing Leased Premises as
of the
SS Commencement Date and the Substitute Space shall constitute the Leased
Premises for the balance of the Term of this Lease and subject to and upon
the
following economic terms and all of the other terms, covenants and conditions
of
this Lease. The Term of the Lease shall be extended to expire on that date
which
is the last day of the sixtieth (60th)
complete calendar month after the SS Commencement Date. The annual Base Rent
for
the Substitute Space shall be determined in accordance with the provisions
of
Section 62.03 below. Annual Base Rent for the Substitute Space shall be payable
in equal monthly installments, in advance, on the first day of each month
following the SS Commencement Date, without any demand or setoff. In the
event
the SS Commencement Date occurs on a date other than the first day of the
month,
Tenant shall pay Base Rent for such first partial month prorated on the basis
of
a thirty (30) day month within ten (10) days after the SS Commencement Date.
Tenant's Share of Operating Expenses shall be redetermined to a fraction
in
which the numerator is the total number of square feet comprising the rentable
area of the Substitution Space and the denominator of which is 754,288. Tenant's
obligation to pay Additional Rent for the Substitute Space shall commence
on the
SS Commencement Date. Landlord shall make available to Tenant and Tenant
shall
have the non-assignable option to rent from Operator one (1) unreserved parking
space located in the Parking Garage for every 1,000 square feet of rentable
area
contained in the Contiguous Available Space at the monthly rate posted from
time
to time by the Operator and otherwise subject to the terms of the Parking
Agreement. Tenant must exercise its option within thirty (30) days after
the CAS
Commencement Date. Tenant shall completely vacate and redeliver the Existing
Leased Premises to Landlord in compliance with the provisions of Section
11.03
on or before the third (3rd) day following the SS Commencement Date (the
"ELP
Vacation Date"). In the event Tenant fails to vacate and redeliver the Existing
Leased Premises on or before the ELP Vacation Date, in addition to all other
remedies provided to Landlord for Tenant's default, Tenant shall be deemed
to be
a tenant at sufferance with respect to the Existing Leased Premises and shall
pay Landlord the sum of $800.00 for each day that Tenant fails to vacate
and
redeliver the Existing Leased Premises to Landlord after the ELP Vacation
Date.
Upon the substitution of the Substitute Space for the Existing Leased Premises,
this Lease shall be deemed modified in the manner set forth above without
the
necessity of any further agreement or document; provided, however, Landlord
and
Tenant agree to execute, acknowledge and deliver an instrument evidencing
such
modification of this Lease to be prepared by Landlord.
62.03 Fair
Market Rental Rate.
(a) For
the
purposes of this Article 62, the term "Fair Market Rental Rate" or "FMRR"
for
the Contiguous Available Space added to the Leased Premises pursuant to the
terms of Section 62.01 or for the Substitute Space substituted for the Existing
Leased Premises pursuant to the terms of Section 62.02 shall mean an amount
per
square foot of the rentable area of the Contiguous Available Space or Substitute
Space (whichever is applicable), reasonably determined by Landlord by reference
to the then market rate for comparable space (including location and the
extent
and condition of the build-out) in the Complex
-46-
(i) commencing
on the CAS Commencement Date or the SS Commencement Date (whichever is
applicable),
(ii) providing
for no free rent, a tenant finish allowance equal to (1) the CAS Allowance
pertaining to the Contiguous Available Space or (2) the SS Allowance plus
the
value of the tenant improvements in place upon the Substitute Space prior
to
commencement of construction of the SS Tenant Work to a prospective tenant,
and
(iii) otherwise
on all of the terms and conditions of this Lease, including the Tenant's
obligation to pay Additional Rent in accordance with the provisions of Article
54 using the Landlord's Operating Expense Contribution defined in subsection
54.02(c); provided, however, in no event shall the FMRR be less than [A]
$19.50
per rentable square foot during the first twelve (12) months of the Term;
[B]
$20.50 per rentable square foot during the thirteenth (13th)
through
the thirty-sixth (36th)
month
of the Term; [C] $22.00 per rentable square foot during the thirty-seventh
(37th)
through
the forty-eighth (48th)
month
of the Term; and [D] $22.50 per rentable square foot after the forty-eighth
(48th)
month
through the end of the Term.
(b) Landlord
shall deliver to Tenant its proposed FMRR for [A] the Contiguous Available
Space
within thirty (30) days after Landlord's receipt of the Contiguous Space
Acceptance or [B] for the Substitute Space within thirty (30) days after
Landlord's receipt of notice of the Substitute Space Acceptance. Landlord
and
Tenant shall use reasonable good faith efforts to mutually agree upon the
FMRR
(y) for Contiguous Available Space within sixty (60) days after Landlord's
receipt of the Contiguous Space Acceptance and (z) for the Substitute Space
within sixty (60) days after Landlord's receipt of the Substitute Space
Acceptance.
(c) In
the
event Landlord and Tenant cannot agree upon the FMRR for the Contiguous
Available Space or the Substitute Space within the sixty (60) day period
described in subsection 62.03(b) the FMRR shall be determined by appraisal,
said
appraisal shall be conducted in accordance with the following
procedures:
(i) Within
twenty (20) days after receipt of a notice to appraise given by either party,
Landlord and Tenant shall each select a real estate appraiser, who shall
be a
member of the American Institute of Real Estate Appraisers, and who shall
have
at least five (5) years appraisal experience with respect to commercial and
office rental properties in the central business district of Denver, Colorado.
If one of the parties hereto fails to appoint an appraiser within the time
period prescribed, then the single appraiser appointed shall be the sole
appraiser and shall determine the FMRR at issue. If two appraisers are
appointed, they shall have thirty (30) days from the date the second appraiser
is appointed (the "30-day Appraisal Period") within which to agree upon the
FMRR
at issue. The appraiser(s) shall be advised that the determination of the
FMRR
at issue shall be governed by the definitions of same set forth in this Lease.
The determination by the two appraisers of the FMRR at issue shall be binding
on
Landlord and Tenant.
(ii) If
the
two appraisers appointed by the parties hereto are unable to agree upon the
FMRR
at issue within the 30-day Appraisal Period, then said appraisers shall attempt,
within ten (10) days after the expiration of the 30-day Appraisal Period,
to
select a third appraiser (the "Third Appraiser"). If the first two appraisers
are unable to agree on the Third Appraiser within the ten (10) day period
prescribed in the immediately preceding sentence, either Landlord or Tenant,
by
giving ten (10) days notice to the other party hereto, shall request that
the
presiding judge of the District Court for the City and County of Denver,
State
of Colorado select the Third Appraiser. The Third Appraiser, however selected,
shall meet the qualifications set forth in subsection 62.03(c)(i) above,
and
shall be a person who has not previously acted in any capacity for either
Landlord or Tenant.
-47-
(iii) On
or
before the tenth (10th) day after the Third Appraiser is appointed or selected,
the first two appraisers shall each simultaneously submit in sealed envelopes
his/her opinion of the fair market base rent at issue, together with any
written
arguments or data in support of said opinion(s), to the Third Appraiser.
Within
thirty (30) days after he/she is appointed or selected, the Third Appraiser
shall determine the FMRR at issue by selecting one of the opinions submitted
by
the first two appraisers. The selection of the Third Appraiser shall be binding
on Landlord and Tenant.
(iv) Each
party hereto shall pay the fees and expenses of the appraiser selected by
such
party, and the fees and expenses of the Third Appraiser shall be borne equally
by Landlord and Tenant.
63. RENEWAL
OPTION
63.01
Renewal
Term.
Tenant
shall have the option to renew ("Renewal Option") this Lease for one additional
term of thirty-six (36) months ("Renewal Term"), commencing upon the expiration
of the initial Term of this Lease, on the condition that Tenant is not in
default under this Lease in any material respect at the time Tenant gives
notice
of exercise of its Renewal option or at the time of commencement of the Renewal
Term. The Renewal shall be on all of the terms, covenants and conditions
of this
Lease, except (i) there shall be no obligation to provide any tenant
improvements or furniture allowance or to construct any tenant improvements,
(ii) Landlord's Operating Expense Contribution for determining Tenant's
obligations to pay Additional Rent pursuant to the provisions of Article
54
shall be changed to mean the total amount of Operating Expenses (on a per
square
foot of rentable area basis) incurred by Landlord during the Calendar Year
in
which the Renewal Term commences, (iii) there shall be no Right of First
Offer
or Right to Expand Leased Premises, and (iv) the annual Base Rent for the
Leased
Premises during the Renewal Term shall be the Renewal Term Fair Market Rental
Rate ("RTFMRR") as defined in Section 63.02 below, at the time the Renewal
Term
begins. Tenant's Renewal Option may be exercised only by Tenant giving Landlord
written notice of Tenant's election to exercise such option, at least six
(6)
months prior to the end of the initial Term of the Lease, time being of the
essence with respect to such notice.
63.02 Fair
Market Rental Rate.
(a) For
the
purposes of this Article 63, the term "Renewal Term Fair Market Rental Rate"
or
"RTFMRR" for the Renewal Term shall mean an amount per square foot of the
rentable area of the Leased Premises per annum, reasonably determined by
Landlord by reference to the market for comparable space (including the extent
and condition of the build-out in the Building.
(i) commencing
on the commencement date of the Renewal Term,
(ii) providing
for no free rent, a tenant finish allowance equal to the value of the tenant
improvements in place upon the Leased Premises to a prospective tenant as
of the
commencement date of the Renewal Term, and
(iii) otherwise
on all of the terms and conditions of this Lease, including the Tenant's
obligation to pay Tenant's Proportionate Share of Operating Expenses in
accordance with the provisions of Article 54 using a Landlord’s Operating
Expense Contribution in the amount to be adjusted.
(b) Landlord
shall deliver to Tenant its proposed RTFMRR for the Renewal Term within thirty
(30) days after Landlord's receipt of notice of Tenant's election to exercise
its option to renew ("Renewal Notice"). Landlord and Tenant shall use reasonable
good faith efforts to mutually agree upon the RTFMRR within sixty (60) days
after Tenant's delivery of the Renewal Notice.
(c) In
the
event Landlord and Tenant cannot agree upon the RTFMRR for the Renewal Term
within the sixty (60) day period described in subsection 63.02(b) the RTFMRR
shall be determined by appraisal, said appraisal shall be conducted in
accordance with the following procedures:
-48-
(i) Within
twenty (20) days after receipt of a notice to appraise given by either party,
Landlord and Tenant shall each select a real estate appraiser, who shall
be a
member of the American Institute of Real Estate Appraisers, and who shall
have
at least five (5) years appraisal experience with respect to commercial and
office rental properties in the central business district of Denver, Colorado.
If one of the parties hereto fails to appoint an appraiser within the time
period prescribed, then the single appraiser appointed shall be the sole
appraiser and shall determine the RTFMRR. If two appraisers are appointed,
they
shall have thirty (30) days from the date the second appraiser is appointed
(the
"30-day Appraisal Period") within which to agree upon the RTFMRR. The
appraiser(s) shall be advised that the determination of the RTFMRR shall
be
governed by the definitions of same set forth in this Lease. The determination
by the two appraiser of the RTFMRR shall be binding on Landlord and
Tenant.
(ii) If
the
two appraisers appointed by the parties hereto are unable to agree upon the
RTFMRR within the 30-day Appraisal Period, then said appraisers shall attempt,
within ten (10) days after the expiration of the 30-day Appraisal Period,
to
select a third appraiser (the "Third Appraiser"). If the first two appraisers
are unable to agree on the Third Appraiser within the ten (10) day period
prescribed in the immediately preceding sentence, either Landlord or Tenant,
by
giving ten (10) days notice to the other party hereto, shall request that
the
presiding judge of the District Court for the City and County of Denver,
State
of Colorado select the Third Appraiser. The Third Appraiser, however selected,
shall meet the qualifications set forth in subsection 63.02(c)(i) above,
and
shall be a person who has not previously acted in any capacity for either
Landlord or Tenant.
(iii) On
or
before the tenth (10th) day after the Third Appraiser is appointed or selected,
the first two appraiser shall each simultaneously submit in sealed envelopes
his/her opinion of the fair market base rent at issue, together with any
written
arguments or data in support of said opinion(s), to the Third Appraiser.
Within
thirty (30) days after he/she is appointed or selected, the Third Appraiser
shall determine the RTFMRR by selecting one of the opinions submitted by
the
first two appraisers. The selection of the Third Appraiser shall be binding
on
Landlord and Tenant.
(iv) Each
party hereto shall pay the fees and expenses of the appraiser selected by
such
party, and the fees and expenses of the Third Appraiser shall be borne equally
by Landlord and Tenant.
64. PARKING
64.01
Tenant shall have the nontransferable right to rent up to two (2) unreserved
parking spaces and four (4) reserved parking spaces located in the Complex
parking garage (the “Parking Garage”) subject to the terms and conditions of the
Parking Agreement attached hereto as Exhibit
D
and
incorporated herein by this reference. Tenant acknowledges that the current
posted monthly charge for an unreserved parking space in the Parking Garage
is
$150.00 and for a reserved parking space in the Parking Garage is
$200.00.
65. TENANT’S
RIGHT TO PURCHASE LANDLORD’S FURNITURE
65.01 Tenant
may elect to acquire all of the furniture currently located upon the Leased
Premises owned by Landlord which is described on Exhibit
E
attached
hereto and incorporated herein by this reference (the “Landlord’s Furniture”)
for ten dollars ($10.00). In the event Tenant desires to acquire the Landlord’s
Furniture, Tenant shall deliver written notice (the “Furniture Notice”) to
Landlord on or before November 1, 2006, together with Tenant’s check made
payable to Landlord in the amount of ten dollars ($10.00). In the event Tenant
delivers the Furniture Notice and such payment within the time period provided,
Landlord agrees (a) to deliver to Tenant within thirty (30) days after the
Commencement Date a xxxx of sale in the form and content of Exhibit
E-1
attached
hereto and incorporated herein by this reference, and (b) to deliver possession
of Landlord’s Furniture to Tenant on the Commencement Date. Tenant agrees to
accept Landlord’s Furniture in its “as is” condition as of the Commencement Date
without any warranties or guaranties expressed or implied.
All
of
the terms and provisions of the Lease, as herein amended and supplemented,
are
hereby ratified and confirmed, and shall remain in full force and
effect.
-49-
IN
WITNESS WHEREOF, the parties hereto have caused this Addendum to be duly
executed as of the day and year first above written.
|
LANDLORD:
|
||||
|
DENVER
PLACE ASSOCIATES LIMITED
|
||||
|
PARTNERSHIP,
a Delaware limited partnership
|
||||
|
By:
|
Amerimar
Realty Management Co.-Colorado,
|
|||
|
By:
|
Amerimar
Realty Management Co.-
|
|||
|
Pennsylvania,
its general partner,
|
||||
|
By:
|
ARC-Management
Co., Inc.,
|
|||
|
its
general partner
|
||||
|
Date:______
|
By:
|
|||
|
Xxxxx
X. Xxxxxxxx, President
|
||||
| TENANT: | ||||
| RANCHER ENERGY CORP., a Nevada corporation | ||||
| Date:______ | By:_____________________ | |||
|
(Title)
|
||||
-50-
EXHIBIT
"B"
RULES
AND REGULATIONS
1. Any
sign,
lettering, picture, notice, or advertise-ment installed within the Leased
Premises which is visible to the public from within the Building shall be
installed at Tenant's cost and in such manner, character and style as Landlord
may approve in writing. No sign, lettering, picture, notice or advertisement
shall be placed on any outside window or in any position so as to be visible
from outside the Building.
2. The
use
of the name of the Building or of pictures or illustrations of the Building
in
advertising or other pub-licity, without prior written consent of Landlord,
is
prohibited.
3. Tenant,
its subtenants and its and their customers, invitees, licensees, and
guests
a. shall
not
obstruct and shall not use for any purpose other than ingress and egress,
the
sidewalks, entrances, passages, courts, corridors, vestibules, halls, elevators
and stairways in and about the Building;
b. shall
not
place objects against glass partitions or doors or windows or adjacent to
any
open common space which would be unsightly from the Building corridors or
from
the exterior of the Building, and will promptly remove the same upon notice
from
Landlord;
c. shall
not
make noises, cause distur-bances, create vibrations, odors or noxious fumes
or
use or operate any electrical or electronic devices or other devices that
emit
sound waves or are dangerous to other tenants and occupants of the Building
or
that would interfere with the operation of any device or equipment or radio
or
television broadcasting or reception from or within the Building or else-where,
and shall not place or install any projections, antennae, aerials or similar
devices inside or outside of the Leased Premises;
d. shall
not
make any room-to-room canvass to solicit business from other tenants in the
Building, and shall not exhibit, sell or offer to sell, use, rent or exchange
any item or services in or from the Leased Premises unless ordinarily embraced
within the Tenant's use of the Leased Premises as specified in its
Lease;
e. shall
refrain from attempting to adjust any controls;
f. shall
not
waste, and shall not suffer or permit to be wasted, electricity or water
and
shall cooperate fully with Landlord to assure the most effective operation
of
the Building's heating and air conditioning;
g. shall
keep public corridor doors closed;
h. shall
neither install nor operate machinery or any mechanical devices of a nature
not
directly related to Tenant's ordinary use of the Leased Premises without
the
written permission of the Landlord;
i. shall
not
use rest rooms or water fixtures for any purpose other than that for which
they
are designed;
j. shall
not
xxxx upon, paint, cut, drill into, drive nails or screws into, or in any
way
deface the walls, ceiling partitions or floors of the Leased Premises or
of the
Building;
k. shall
not
unduly obstruct any pipes, conduits and ducts in the Leased Premises;
and
l. shall
use
chair pads, to be furnished by Tenant, under all rolling and ordinary desk
chairs in the carpeted areas.
-51-
4. Tenant
assumes full responsibility for protecting its space from theft, robbery
and
pilferage, which includes keeping doors locked and other means of entry to
the
Leased Premises closed and secured.
5. Peddlers,
solicitors and beggars shall be reported to the office of the Building or
as
Landlord otherwise requests.
6. No
person
or contractor not employed by Landlord shall be used to perform window washing,
cleaning, or other work in the Leased Premises.
7. Unless
Landlord so consents, Tenant shall not, and Tenant shall not permit or suffer
anyone to:
x. Xxxx
in
the Leased Premises;
b. Place
vending or dispensing machines of any kind in the Leased Premises;
c. At
any
time sell, purchase or give away, or permit the sale, purchase or gift of,
food
in any form; or
d. Use
the
Leased Premises for lodging or for any immoral or illegal purposes.
e. Use
the
Leased Premises to engage in the manufacture or sale of, or permit the use
of,
any spirituous, fermented, intoxicating or alcoholic beverages on the Leased
Premises.
f. Use
the
Leased Premises to engage in the manufacture or sale of, or permit the use
of,
any illegal drugs.
8. No
furniture shall be placed in front of the Building or in any lobby or corridor,
without the prior written consent of Landlord. Landlord shall have the right
to
remove all non-permitted signs and furniture, without notice to Tenant, at
Tenant's expense.
9. No
animals are allowed in the Building.
10. No
lock
or other security device shall be placed by Tenant on any door in the Building
without the Building manager being kept furnished with two of the keys, cards
or
other means of access therefore. At the termination of its tenancy, Tenant
shall
promptly deliver to Landlord all keys, entry cards and other means of access
to
offices, rest rooms and vaults.
11. The
use
of oil, gas or inflammable liquids for heating, lighting, or any other purpose
is expressly prohibited. Explosives or other hazardous articles shall not
be
brought into the Building.
12. Electric
floor space heaters, humidifiers or A/C fans are not permitted.
13. a. Landlord
shall have the right to approve or disapprove the movers or moving company
employed by Tenant. Tenant shall cause said movers to use only the loading
facilities and elevator designated by Landlord. In the event Tenant's movers
damage the elevator or any part of the Building, Tenant shall forthwith pay
to
Landlord the amount required to repair said damage.
b. Furniture,
equipment and supplies shall be moved in or out of the Building only during
such
hours and in such manner as may be prescribed by Landlord.
-52-
c. No
safe
or article, the weight of which may constitute a hazard or danger to the
Building or its equipment shall be moved into the Leased Premises.
d. Safes
and
other equipment, the weight of which is not excessive shall be moved into,
from
or about the Building only during such hours and in such manner as shall
be
prescribed by Landlord, and Landlord shall have the right to designate the
location of such articles in the Leased Premises.
14. Smoking
shall not be permitted in all areas of the Building (including but not limited
to the parking garage, elevator lobbies, elevators, public corridors and
restrooms), or within three feet of the exterior entrance to any doorway
or
entryway of the Building. Smoking shall only be permitted in those areas
which
have been designated as public smoking areas`
15. Roller
skates, bicycles or other vehicles shall not be permitted in the offices,
halls,
common areas, or corridors in the Building. All vehicles shall use designated
parking meters.
16. No
window
shades, blinds, screens, draperies or other window coverings will be attached
or
detached by Tenant without Landlord’s prior written consent. Tenant agrees to
abide by Landlord’s rules with respect to maintaining uniform curtain, draperies
and/or linings at all windows and hallways.
17. If
Tenant
desires telegraphic, telephonic, computer or other electric connections,
Landlord, or its agents, will direct the electricians as to where and how
the
wires may be introduced, and without such directions, no boring or cuttings
for
wires will be permitted. Any such installation and connection shall be made
at
Tenant’s expense, and, at Landlord’s option, shall be removed at Tenants expense
at the expiration or termination of its Lease.
18. Landlord
reserves the right to modify and make such other and further reasonable rules
and regulations as in its judgment may, from time to time, be needful and
desirable for the safety, security, care and cleanliness of the Leased Premises
and preservation of good order therein.
-53-
EXHIBIT
"C"
LEASE
TERM AGREEMENT
THIS
AGREEMENT, made as of the ____ day of ______, 2006, DENVER-PLACE ASSOCIATES
LIMITED PARTNERSHIP, a Delaware limited partnership (hereinafter referred
to as
"Landlord") and RANCHER ENERGY CORP., a Nevada corporation (hereinafter referred
to as "Tenant").
WITNESSETH
WHEREAS,
by Lease (hereinafter called "Lease") made as of October 30, 2006, Landlord
leased unto Tenant certain premises known as Suite 1740, located at 000 -
00xx
Xxxxxx,
Xxxxxx, Xxxxxxxx, for a term of sixty-three (63) months and zero (0) days
and
commencing on November 10, 2006 unless sooner ter-minated or extended as
provided therein, and
WHEREAS,
Landlord and Tenant now desire to set forth the correct Commencement Date
of the
term and to adjust the Expira-tion Date of the Term to provide for a full
term
of the Lease of sixty-three (63) months and ________ days.
NOW,
THEREFORE, Landlord and Tenant do hereby agree as follows:
|
1.
|
The
Term of the Lease commences on ______________,
and shall continue until_______________ unless sooner terminated
or
extended as provided therein.
|
|
2.
|
Except
as hereby amended, the Lease shall continue in full force and
effect.
|
|
3.
|
This
Agreement shall be binding on the parties hereto, their heirs,
executors,
successors and assigns.
|
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
|
LANDLORD:
|
||||
|
DENVER
PLACE ASSOCIATES LIMITED
|
||||
|
PARTNERSHIP,
a Delaware limited partnership
|
||||
|
By:
|
Amerimar
Realty Management Co.-Colorado,
|
|||
|
By:
|
Amerimar
Realty Management Co.-
|
|||
|
Pennsylvania,
its general partner,
|
||||
|
By:
|
ARC-Management
Co., Inc.,
|
|||
|
its
general partner
|
||||
|
Date:______
|
By:
|
|||
|
Xxxxx
X. Xxxxxxxx, President
|
||||
| TENANT: | ||||
| RANCHER ENERGY CORP., a Nevada corporation | ||||
| Date:______ | By:_____________________ | |||
|
(Title)
|
||||
-54-
EXHIBIT
"D"
PARKING
AGREEMENT
DENVER
PLACE ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership, by
Amerimar Realty Management Co.-Colorado, as agent for Landlord, and RANCHER
ENERGY CORP., a Nevada corporation, as Tenant, have executed simultaneously
with
this Agreement a Lease (hereinafter called "Lease") pertaining to certain
space
at 000 - 00xx Xxxxxx to be occupied by Tenant. In consideration of the mutual
covenants herein contained, Landlord and Tenant further agree as
follows:
The
Building in which the Premises are located contains a parking garage for
the
benefit of Tenants and the general public (hereinafter called "Parking Garage").
Landlord does not operate or manage the Parking Garage, but maintains a
management agreement with an independent contractor (hereinafter called
"Operator") for the management and operation of the Parking Garage. In order
to
rent parking spaces in the Parking Garage, Tenant must contract separately
with
the Operator for such rentals. Landlord shall make available for Tenant and
Tenant shall have a non-assignable option to rent from the Operator two (2)
unreserved parking spaces and four (4) reserved parking spaces (collectively,
the “Parking Spaces”) located in the Denver Place complex at the prevailing
monthly rate posted by the Operator from time to time during the Term of
the
Lease. The Parking Spaces shall be available for a period expiring thirty
(30)
days after the Commencement Date of the Lease. Tenant must exercise its option
within this period by renting the Parking Spaces directly from the
Operator.
The
terms
and conditions of Tenant's rental of the Parking Spaces shall be governed
and
fixed solely by the rental agreement between Tenant and Operator, however,
Tenant's failure to comply with any term of any such rental agreement shall
constitute a default under the Lease. In the event that Tenant chooses to
rent
Parking Spaces from the Operator as provided for herein, Tenant shall be
responsible for payment to the Operator of a refundable security deposit
for
each parking card issued by the Operator in connection with Tenant’s rental of
the Parking Spaces (the “Security Deposit”). The Security Deposit shall be in an
amount to be determined by the Operator in its sole discretion. Notwithstanding
anything in this Agreement or the Lease to the contrary, in no event shall
Landlord be responsible for payment of the Security Deposit to the Operator
on
behalf of Tenant. Payment and refund of the Security Deposit shall be governed
and fixed solely by the rental agreement between Tenant and Operator. Landlord's
holding of Parking Spaces shall not constitute any assumption of and Tenant
hereby releases Landlord from any and all liability with respect to such
rentals, and any and all damage, loss or injury with respect to such rentals
shall be at the sole risk of Tenant unless otherwise provided by Operator
under
the rental agreement.
The
Parking Spaces shall only be used by Tenant’s employees who work at the Leased
Premises and may not be assigned, transferred or subletted to any other third
parties.
The
provisions of this Agreement supplement but are subject to all provisions
of the
Lease. Capitalized terms not otherwise defined in this Agreement have the
same
meaning as the same terms have in the Lease.
|
LANDLORD:
|
||||
|
DENVER
PLACE ASSOCIATES LIMITED
|
||||
|
PARTNERSHIP,
a Delaware limited partnership
|
||||
|
By:
|
Amerimar
Realty Management Co.-Colorado,
|
|||
|
By:
|
Amerimar
Realty Management Co.-
|
|||
|
Pennsylvania,
its general partner,
|
||||
|
By:
|
ARC-Management
Co., Inc.,
|
|||
|
its
general partner
|
||||
|
Date:______
|
By:
|
|||
|
Xxxxx
X. Xxxxxxxx, President
|
||||
| TENANT: | ||||
| RANCHER ENERGY CORP., a Nevada corporation | ||||
| Date:______ | By:_____________________ | |||
|
(Title)
|
||||
-55-
EXHIBIT
“E”
LIST
OF LANDLORD’S FURNITURE
-56-
EXHIBIT
“E-1”
XXXX
OF SALE
KNOW
ALL
MEN BY THESE PRESENTS: That DENVER PLACE ASSOCIATES LIMITED PARTNERSHIP
("Seller"),
for
and in consideration of TEN AND NO/100THS DOLLARS ($10.00) and other valuable
consideration the receipt and sufficiency of which is hereby acknowledged,
has
bargained and sold, and by these presents does grant and convey unto RANCHER
ENERGY CORP., a Nevada corporation ("Purchaser"),
its
successors, and assigns, that certain furniture more particularly described
in
Exhibit
A
attached
hereto and incorporated herein by this reference and currently located on
the
seventeenth (17th) floor of that certain office building known as Denver
Place
South Tower, 000 -00xx Xxxxxx, Xxxxxx, Xxxxxxxx (the "Personal
Property").
TO
HAVE
AND TO HOLD the same unto said Purchaser, its successor, and assigns, forever.
The Seller covenants and agrees to and with the Purchaser, its successors,
and
assigns, to warrant and defend the sale of the Personal Property against
all and
every person or persons whomsoever.
SAID
PERSONAL PROPERTY IS BEING TRANSFERRED ON AN "AS IS", "WHERE IS" BASIS, WITHOUT
ANY REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, BY SELLER.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PURCHASER ACKNOWLEDGES
THAT
SELLER EXPRESSLY DISCLAIMS AND NEGATES, AS TO ALL PERSONAL PROPERTY TRANSFERRED
HEREBY: (A) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY; AND (B) ANY
IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR
PURPOSE.
Purchaser acknowledges that it has relied solely upon its own inspection
of the
Personal Property in electing to purchase the Personal Property. Purchaser
expressly waives a reduction in the purchase price on account of the physical
condition of the Personal Property, latent defects in the Personal Property
hereafter discovered by Purchaser and/or the absence of the Personal Property
from the location described above.
The
Purchaser agrees that it shall be solely responsible for and indemnify and
hold
Seller harmless from any sales and/or use taxes attributable to the transfer
and
sale of the Personal Property from Seller to Purchaser.
IN
WITNESS WHEREOF, the parties hereto have executed this Xxxx of Sale as of
the
____ day of November, 2006.
|
SELLER:
|
||||
|
DENVER
PLACE ASSOCIATES LIMITED
|
||||
|
PARTNERSHIP,
a Delaware limited partnership
|
||||
|
By:
|
ARC
Denver Associates L.L.C., a Delaware
|
|||
| limited liability company, its general partners | ||||
|
By:
|
ARC
Denver, Inc., a Delaware corporation,
|
|||
|
its
manager
|
||||
|
|
By:
|
|||
|
Xxxxx
X. Xxxxxxxx, President
|
||||
| PURCHASER: | ||||
| RANCHER ENERGY CORP., a Nevada corporation | ||||
| By:___________ | ||||
| Name:________ | ||||
| Title:_________ | ||||
-57-
Exhibit
A to Xxxx of Sale
List
of Personal Property
-58-
