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EXHIBIT 10.2
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TABLE OF CONTENTS
ARTICLE I. Definitive Lease Terms 1
Section 1.01 Building 1
Section 1.02 Term 1
Section 1 03 Commencement Date 1
Section 1.04 Minimum Rent 1
Section 1.05 Adjusted Minimum Rent 1
Section 1.06 Use 2
ARTICLE II. Alterations and Additions 2
Section 2.01 Condition of Premises 2
Section 2.02 No Alterations 2
ARTICLE III. Operating Expenses 2
Section 3.01 Additional Rent 2
Section 3.02 Pavements 2
Section 3.03 Extra Charges 2
Section 3.04 Maintenance Costs Defined 3
ARTICLE IV. Tenant Covenants 4
Section 4.01 Care of Premises 4
Section 4.02 Compliance with Law 4
Section 4.03 Tenant's Insurance 4
Section 4.04 Tenant's Indemnification 5
Section 4.05 Utilities 6
Section 4.06 Personal Property Taxes 6
Section 4.07 Liens 6
Section 4.08 Surrender 6
ARTICLE V. Landlord's Covenants and Rights 6
Section 5.01 Quiet Enjoyment and Subordination 6
Section 5.02 Alterations by Landlord 7
Section 5.03 Entry by Landlord 7
ARTICLE VI. General Provisions 8
Section 6.01 Assignment and Subletting 8
Section 6.02 Eminent Domain 8
Section 6.03 Events of Default 9
Section 6.04 Remedies Upon Default 10
Section 6.05 Damage by Fire or Other Casualty 11
Section 6.06 Subrogation 12
ARTICLE VII. Miscellaneous Provision 12
Section 7.01 Administrative Service Charges 12
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Section 7.02 Late Charges 12
Section 7.03 Holding Over 13
Section 7.04 Notices 13
Section 7.05 Venue 13
Section 7.06 Statutory Remedies Waiver 13
Section 7.07 Brokerage 14
Section 7.08 Jury Trial Waiver 14
Section 7.10 Severability 14
Section 7.11 No Set-Off 14
Section 7.12 Relationship of Parties 14
Section 7.13 Successors Bound 14
Section 7.14 Interpretation 14
Section 7.15 Time of the Essence 15
Section 7.16 Easements 15
Section 7.17 Short Form Lease 15
Section 7.18 Assignment of Rents. Leases 15
Section 7.19 Intent of the Parties - Net Lease 15
Section 7.20 Status Statement 17
Section 7.22 Definition of Lease 17
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LEASE
THIS LEASE is entered into effective the 29th day of December, 1994,
by and between NAGROM L.L.C., A COLORADO LIMITED LIABILITY COMPANY
("Landlord"), having a principal place of business at 0000 Xxxxx Xxxxxxxx Xxx,
Xxxxxxxxx, Xxxxxxxx 00000, and MEGABANK FINANCIAL CORPORATION, A COLORADO
CORPORATION ("Tenant"), having a principal place of business at 0000 Xxxx
Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx 00000 (collectively referred to as "the
Parties").
W I T N E S S E T H:
Subject to and upon the terms herein set forth, Landlord leases to
Tenant and Tenant leases from Landlord the Premises, as hereinafter defined.
ARTICLE I.
Definitive Lease Terms
Section 1.011 Building. The "Premises" is that structure more commonly known
and numbered as 0000 Xxxx Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxx of Arapahoe, State
of Colorado, now or hereinafter constructed on the "Property" more fully
described in Exhibit A, Page 1, attached hereto and made a part hereof, and as
shown on the Site Plan attached hereto and made a part hereof as Exhibit A,
Page 2.
Section 1.012 Term. The Term of this Lease shall be the period commencing on
the Commencement Date as hereinafter defined and continuing for one hundred
twenty (120) full months after the first day of the first full month following
the Commencement Date, unless sooner terminated as provided in this Lease.
Section 1.013 Commencement Date. The Commencement Date of this Lease shall be
December 29, 1994. The Termination Date shall be the last day of the Term of
this Lease.
Subsequent to the Commencement Date, the Landlord and Tenant shall execute an
Addendum to this Lease, substantially in the form of Exhibit B hereto, setting
forth the precise Commencement and Termination Dates. The Parties hereto
acknowledge and agree that certain obligations under various articles and
sections of the Lease may commence prior to the Commencement Date, including,
but not limited to, hold harmless liability, and insurance, and the Parties
agree to be bound by any such articles or sections prior to the Commencement
Date.
Section 1.014 Minimum Rent. Tenant shall pay to Landlord as Minimum Rent,
without
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notice or demand and without set off or deduction for any reason whatsoever,
during the Term of this Lease the total sum of Three Hundred Six Thousand and
No/1O0ths Dollars ($306,000.00) payable in advance in the following monthly
installments:
MONTHS PAYMENTS
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1 through l2 $25,500.00 per month
Section 1.015 Adjusted Minimum Rent. In addition to Minimum Rent, Tenant shall
pay Adjusted Minimum Rent calculated annually by multiplying the Minimum Rent
paid in the last calendar month of the immediately preceding year by twelve
(12), then multiplying this product by three and one-half percent (3.5%).
Section 1.016 Use. The Premises shall be used and occupied by Tenant (and any
permitted and approved subtenants and/or assignees of Tenant) only as a
financial institution, and general business offices, and Tenant shall not use
or permit the Premises to be used for any other purpose without the prior
written consent of Landlord.
ARTICLE II.
Alterations and Additions
Section 1.021 Condition of Premises. Tenant accepts the Premises in its present
"AS IS" condition.
Section 1.022 No Alterations. Tenant shall not make or allow to be made any
alterations, additions or improvements to the Premises or any part thereof
without obtaining the prior written consent of Landlord, which consent shall
not be unreasonably withheld or delayed. Any alterations, additions or
improvements to the Premises excepting movable furniture and trade fixtures
shall become the property of Landlord and shall be surrendered with the
Premises. All alterations, additions or improvements to the Premises made or
requested by Tenant shall be at Tenant's sole cost and expense. Upon the
Termination Date or sooner termination of the Term, Tenant shall, at Tenant's
sole cost and expense, remove any such alterations, additions or improvements
designated by Landlord to be so removed and repair any damage to the Premises
occasioned by such removal forthwith and with all due diligence.
ARTICLE III.
Operating Expenses
Section 1.031 Additional Rent. All operating expenses of the Premises shall be
paid directly by Tenant promptly when due as specified hereunder.
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Section 1.032 Payments. Tenant shall contract for, and shall pay directly to
all suppliers and vendors all charges for services hereinafter defined as
Premises Maintenance Costs. Additionally, Tenant shall pay to Landlord as
Additional Rent all sums paid by Landlord as Taxes as hereinafter defined. Any
such sums shall be due and payable by Tenant within twenty (20) days of receipt
of invoices (accompanied by photocopies of the tax bills) for same from
Landlord. However, failure by Landlord to provide Tenant with an invoice shall
not constitute a waiver by Landlord of its rights to recapture from Tenant
Taxes for any one year. Any payments due under this Article 3 shall be
prorated for any partial calendar year of the Term. Tenant's obligation to pay
any amounts due under this Article III shall survive the Termination Date or
earlier termination as herein provided.
Section 1.033 Extra Charges. Tenant agrees to pay as its obligation the
entirety of all expenses incurred by Landlord which are solely attributable to
Tenant's use and occupancy or which are incurred pursuant to Tenant's special
request for additional services. Any such Extra Charges shall be due and
payable by Tenant within twenty (20) days of receipt of invoices for same from
Landlord.
Section 1.034 Premises Maintenance Costs Defined. "Premises Maintenance Costs"
as used herein shall consist of all operating expenses of the Premises,
including all expenditures or obligations made or incurred by Landlord or
Tenant associated with the ownership, maintenance and operation of the
Premises. Without limiting the generality of the foregoing, Premises
Maintenance Costs shall include, without limitation, all costs attributable to
the maintenance of the Premises including, without limitation, all parking
areas (whether temporary or permanent), access roads, driveways, curbs,
truckways, loading areas and docks, retaining walls, lighting facilities,
comfort stations, pedestrian sidewalks, foundations, exterior and demising
walls, roofs over the entire Premises, ramps, decorative walls, vacant areas,
landscaped and planting areas and facilities, service lines or conduits for
gas, water, electric, sewage, heating, ventilating, air conditioning, and
lighting services, conduits and appurtenances for use by Tenant, and such other
areas and facilities, whether within or outside the Premises, which may be
located on the Premises. Maintenance of the Premises shall include, without
limitation, the following:
(i) All expenses in connection with making available for
use by Tenant the parking facilities for the Premises including, but not
limited to, all costs incurred for sweeping, cleaning, litter control,
resurfacing, repainting, restriping, removal and replacement of
pavement, curbs and car stops, and snow and ice removal,
(ii) All supplies and materials used in the operation and
maintenance of the Premises including, but not limited to, uniforms,
paper products, painting and replacement of worn out mechanical or
damaged equipment
(iii) The cost of all utilities, including, but not limited
to, the cost of water, electrical service, heating, lighting, air
conditioning and ventilation,
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(iv) The cost of all maintenance and service agreements for
the Premises and equipment therein, including, but not limited to,
window cleaning, fire protection, sprinklers, exterminating and
landscape maintenance of any kind,
(v) Amortization and interest on the cost of capital
improvement items, whether or not such improvement items result in, or
are intended to result in, a reduction in Premises Maintenance Costs, or
which are required to be installed under any governmental law,
regulation or authority. All such costs shall be amortized over the
reasonable life of the capital investment items, with the reasonable
life and amortization schedule being determined in accordance with
generally accepted accounting principles and in no event to extend
beyond the reasonable life of the Premises,
(vi) Legal fees, and other professional services associated
with the operation and maintenance of the Premises; and
(vii) The cost of maintenance, repair and replacements of
roofs, ceilings and exterior walls, gutters, glass, plate glass,
windows, plumbing, pipes and fixtures, and other equipment.
Section 1.035 Taxes Defined. "Taxes" shall mean all taxes and assessments and
governmental charges levied, whether by federal, state, county, municipal, or
other taxing districts or authorities presently taxing the Premises, or by
others, subsequently created or otherwise, and any other taxes or assessments
attributable to real estate taxes and assessments or substitutes therefor or
supplements thereto, upon, applicable, attributable or reasonably allocated to
the Premises or any part thereof, or any improvement thereon, for any tax year
or other tax period or partial tax year or period during the Term hereof. If
and to the extent that due to a change in the method of taxation or assessment,
any franchise, capital stock, capital, rent, income, profit or other tax or
charge shall be deemed a substitute or supplement to the same, then all such
items shall be included within the term Taxes for purposes of this Lease.
Should Landlord dispute and contest the Taxes, all costs associated with such
dispute or contest shall be considered Taxes for purposes of this Lease.
ARTICLE IV.
Tenant Covenants
Section 1.041 Care of Premises. Tenant, at its sole cost and expense, shall
take good care of the Premises throughout the Term and preserve same in the
condition delivered to Tenant on the Commencement Date, normal wear and tear
excepted. Tenant shall be responsible for all maintenance or repairs to the
roof, structural elements, foundation, interior and exterior walls, plumbing,
electrical, heating, air conditioning, ventilating, waste and sewer systems and
equipment, doors and door
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frames, and window and window frames installed in or on the Premises. Tenant
shall be responsible for cleaning the Premises as needed, and making repairs,
replacements and alterations as needed. All repairs, replacements or
improvements undertaken by Tenant under this Section 4.01 shall be performed in
a good and workmanlike manner, using first quality materials and reputable
contractors, and shall be of equal or better quality and utility to the
original work. Tenant shall properly store, out of view of the public, and
shall promptly and regularly remove from the Premises all garbage, trash, and
rubbish. Tenant shall be responsible for all injury or damage of any kind or
character to the Premises caused by Tenant, its agents, servants, independent
contractors or by anyone using or occupying the Premises by, through or under
Tenant. Tenant shall repair any such damage, and Tenant shall promptly pay the
costs incurred therefor.
Section 1.042 Compliance with Law Tenant shall neither use the Premises, nor
permit any act to be done in or about the Premises which will in any way
conflict with any law, statute., ordinance or governmental rule or regulation
now in force or hereafter enacted or promulgated. Tenant shall neither do, nor
permit any act to be done in or about the Premises, nor bring or store anything
therein which is not appropriate to the permitted use of the Premises, nor
which will in any way increase the existing rate of, or adversely affect, any
fire or other insurance upon the Premises or any of its contents, or cause a
cancellation of any insurance policy covering the Premises, any part thereof,
or any of its contents.
Section 1.043 Tenant's Insurance. Tenant shall procure and maintain throughout
the Term of the Lease, at its sole cost and expense, a policy or policies of
insurance of the types and amounts as herein below set forth:
(A) Comprehensive public liability, property damage insurance and
products liability insurance insuring against claims for personal
injury, sickness, disease or death, and property damage suffered in or
about the Premises, including independent contractor coverage, with
limits of public liability coverage of not less than One Million Dollars
($1,000,000.00) per occurrence or with limits for bodily injury of not
less than One Million Dollars ($1,000,000.00) per occurrence and
property damage liability not less than One Million Dollars
($1,000,000.00);
(B) Fire and extended coverage insurance covering the Premises and
Tenant's inventory, personal property, fixtures, improvements, wall
coverings, floor coverings, window coverings, alteration to furniture,
equipment, lighting, ceilings, heating, ventilation and air conditioning
equipment, interior plumbing and plate glass against loss or damage by
fire, windstorms, hail, earthquakes, explosion, riot, damage from
aircraft and such other risks as are from time to time covered under
"extended coverage" endorsements and special extended coverage
endorsements commonly known as "all risks" endorsements, in an amount
equal to the full replacement value thereof;
(C) State Worker's Compensation Insurance, or other similar
coverage, in the statutorily mandated amounts.
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It is expressly understood and agreed that the foregoing minimum limits of
insurance coverage shall not limit the liability of Tenant for its acts or
omissions as provided in this Lease. All of the foregoing insurance policies
(with the exception of Worker's Compensation Insurance to the extent not
available under statutory law) shall name Landlord and such other interested
parties as Landlord shall from time to time designate as insured as their
respective interests may appear, and shall provide that any loss shall be
payable to Landlord and any other interested parties as Landlord shall
designate. All insurance required hereunder shall be placed with companies
which are approved by Landlord and licensed to do business in the state of
Colorado. All such policies shall be written as primary policies,
noncontributing with and in excess of coverage which Landlord may carry.
Tenant shall deliver copies of all such policies and all endorsements thereto,
certified as true and complete by the issuer thereof, prior to the Commencement
Date, or, in the case of renewals thereto, fifteen (15) days prior to the
expiration of the prior insurance policy, together with evidence from the
insurer that such policies are fully paid for, and that no cancellation,
material change or non-renewal thereof shall be effective except upon thirty
(30) days' prior written notice from the insurer to Landlord and its designees.
If Tenant shall at any time fail to procure and/or maintain insurance as herein
provided, Landlord shall be at liberty to do so as often as such failure shall
occur without waiving any other rights under this Lease. Any premiums or other
sums paid by Landlord in obtaining or maintaining such insurance shall be and
become, and are hereby declared to be, Additional Rent hereunder, for the
collection of which Landlord shall have all the remedies provided for in this
Lease or by law for the collection of rent. Payment by Landlord of such
premium or the carrying of Landlord of any such policy shall not be deemed to
waive or release the default of Tenant with respect thereto. Tenant's failure
to provide and maintain in force the insurance provided for herein shall be
regarded as a default hereunder, entitling Landlord to exercise any or all of
the remedies provided in this Lease upon the occurrence of an Event of Default.
Section 1.044 Tenant's Indemnification. Tenant shall indemnify and hold
harmless Landlord from and against any and all claims, demands, causes of
action, judgments and expense, and all loss and damage arising from Tenant's
use of the Premises or from the conduct of its business or from any activity,
work, or other acts or things done, permitted or suffered by the Tenant in or
about the Premises, and shall further indemnify and hold harmless Landlord from
and against any and all claims arising from any breach or default in the
performance of any obligation on Xxxxxx's part to be performed under the terms
of this Lease, or arising from any act or negligence of Tenant, or any officer,
agent, employee, guest, or invitee thereof, and from all costs, attorneys'
fees. and liabilities incurred in the defense of any such claim or any action
or proceeding which may be brought against, out of or in any way related to
this Lease. Tenant, upon notice from Landlord, shall defend the same at
Tenant's expense by counsel reasonably satisfactory to Landlord. Tenant, as a
material part of the consideration to Landlord, hereby assumes all risk of
damage to property or injury to persons in, upon or about the Premises from any
cause, and Tenant hereby waives
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all claims with respect thereof against Landlord. Tenant shall give prompt
notice to Landlord in case of casualty or accidents in the Premises.
Additionally, Tenant shall forever hold Landlord harmless from and against any
and all claims, losses, damages, demands, causes of action, judgments and
expense arising from any act or negligence of any other person in the Premises,
and from all costs, attorneys' fees, and liabilities incurred resulting
therefrom.
Landlord or its agents shall not be liable for any loss or damage to persons or
property resulting from fire, explosion, falling plaster, steam, gas,
electricity, water or rain which may leak from any part of the Premises or from
the pipes, appliances or plumbing works therein or from the roof, street or
subsurface or from any other places resulting from the dampness or any other
cause whatsoever, except personal injury caused by or due to the negligence of
Landlord. Landlord or its agents shall not be liable for interference with the
electrical service, ventilation, or for any latent defect in the Premises.
Section 1.045 Utilities. Tenant shall promptly pay for all water, gas, heat,
light, power, and sewer charges, charges for telephone service, and all other
services and utilities supplied to the Premises, together with any taxes
thereon.
Section 1.046 Personal Property Taxes. Tenant shall pay or cause to be paid
before delinquency any and all taxes levied or assessed and payable during the
term hereof upon all Tenant's leasehold improvements, equipment, furniture,
fixtures, and other personal property located in the Premises.
Section 1.047 Liens. Tenant shall keep the Premises free from any liens arising
out of any work performed, materials furnished, or obligations incurred by or
on behalf of Tenant. Landlord may require, at Xxxxxxxx's sole option, that
Tenant shall provide to Landlord, at Landlord's sole cost and expense, a lien
and completion bond in an amount equal to one and one-half (1 1/2) times the
estimated cost of any improvements, additions or alterations in the Premises
which the Tenant desires to make, to insure Landlord against any liability for
mechanic's and materialmen's liens and to insure completion of the work.
Further, Tenant shall post the Property or take whatever actions are required
to avail itself and Landlord of any statutory protections offered by the laws
and statutes of Colorado. Should any mechanic's or other lien be filed against
the Premises by reason of Tenant's acts or omissions or because of a claim
against Tenant, Tenant shall cause the same to be canceled and discharged of
record by bond or otherwise within twenty (20) days after notice by Xxxxxxxx.
Should Tenant fail to discharge said lien within twenty (20) days after receipt
of notice from Landlord, Landlord may cure the lien. If Landlord elects to
cure said lien, Xxxxxx hereby agrees to reimburse Landlord for the amount of
the lien plus an amount equal to ten percent (10%) of said amount as
administrative costs, all of which amount shall be deemed Additional Rent. The
remedies herein provided shall be in addition to all other remedies available
to Landlord.
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Section 1.048 Surrender. Upon the expiration or other termination of the Term,
and without further notice, Tenant shall peaceably and quietly quit and
surrender to Landlord the Premises, broom clean, in as good a condition as
existed on the Commencement Date, excepting only ordinary wear and tear, loss
by fire, casualty and other causes beyond Tenant's control, repairs,
replacements and alterations permitted hereunder. Tenant's obligation to
observe or perform this covenant shall survive the Termination Date or prior
termination of the Term. The voluntary or other surrender of this Lease by
Tenant or the cancellation of this Lease by mutual agreement of Tenant and
Landlord shall not work a merger, and shall at Landlord's option terminate all
or any subleases and subtenancies or operate as an assignment to Landlord of
all or any subleases or subtenancies. Xxxxxxxx's option hereunder shall be
exercised by notice to Tenant and to all known sublessees or subtenants in the
Premises or any part thereof.
ARTICLE V.
Landlord's Covenants and Rights
Section 1.051 Quiet Enjoyment and Subordination. Landlord covenants and agrees
that, upon performance by Tenant of all of the covenants, obligations,
conditions and provisions hereof on Tenant's part to be kept and performed,
Tenant shall have, hold and enjoy the Premises, subject and subordinate to the
rights set forth herein; provided, however, that no diminution or abatement of
payment due hereunder shall be claimed by or allowed to Tenant for
inconvenience or discomfort arising from the making of any repairs or
improvements to the Premises, nor for any space taken to comply with any law,
ordinance or order of any governmental authority, except as provided for
herein. The obligation of Tenant to pay rent of all kinds hereunder is an
independent covenant and an absolute obligation.
Tenant's rights under this Lease are subject and subordinate to any easements
presently existing or created in the future, the lien of any mortgage, which
Landlord may now or hereafter place upon the Premises, or other liens or real
estate taxes. Tenant accepts this Lease subject and subordinate to any
easement, lease, mortgage or other lien presently existing and hereinafter
created on the Premises, and to any renewals and extensions thereof. This
subordination provision shall be self-operative, and no further instrument of
subordination shall be required; provided, however, that Xxxxxx agrees to
execute and deliver, upon request, such further instrument(s) confirming this
subordination as may be requested by Xxxxxxxx, its mortgagee, or proposed
mortgagee. Tenant hereby constitutes and appoints Landlord as Xxxxxx's
attorney-in-fact to execute any such instrument(s).
Section 1.052 Alterations by Landlord. Landlord may from time to time make
repairs, replacements, changes or additions to the structure, systems,
facilities and equipment in the Premises where necessary to service the
Premises. In connection therewith, Landlord and/or its representatives may
enter on or about the Premises with such material as Landlord may deem
necessary, and may erect scaffolding and all other
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necessary structures on or about the Premises. Tenant waives and releases any
claims for damage including loss of business resulting therefrom; provided,
however, that in the exercise of its rights hereunder, Landlord shall not
unreasonably interfere with the conduct of Xxxxxx's business.
Section 1.053 Entry by Landlord. Landlord and Landlord's agents and
representatives shall have the right to enter into and upon the Premises, or
any part thereof, at all reasonable times for the following purposes:
(A) Examining the Premises;
(B) Making such repairs or alterations therein as may be necessary
in Landlord's sole judgment for the safety and preservation
thereof;
(C) Erecting, maintaining, repairing or replacing wires, cables,
conduits, vents, HVAC equipment or plumbing equipment running
in, to, or through the Premises;
(D) Showing the Premises to prospective tenants;
(E) Showing the Premises to prospective purchasers or mortgagees;
(F) Posting notices of non-responsibility.
Landlord may enter the Premises at any time in case of emergency without prior
notice to Tenant.
For each of the aforesaid purposes, Landlord shall at all times have and retain
a key with which to unlock all of the doors in, upon and about the Premises,
excluding Tenant's vaults, safes and files, and Landlord shall have the right
to use any and all means which Landlord may deem proper to open said doors in
an emergency in order to obtain entry to the Premises without liability to
Tenant except for any failure to exercise due care for Tenant's property. Any
entry to the Premises obtained by Landlord by any of said means, or otherwise,
shall under no circumstances be construed or deemed to be forcible or unlawful
entry into or a detainer of the Premises, or an eviction, partial eviction or
constructive eviction of Tenant from the Premises or any portion thereof, or
disturbance of Tenant's use or possession of the Premises, and shall not
relieve Tenant of its obligations hereunder.
ARTICLE VI.
General Provisions
Section 1.061 Assignment and Subletting. Tenant expressly covenants that it
shall not, by operation of law or otherwise, assign, encumber or mortgage this
Lease, or any part thereof, or permit the Premises to be used by others, except
as expressly permitted
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herein, without the prior written consent of Landlord in each instance, which
consent shall not be unreasonably withheld or delayed. Any attempt by Tenant
to assign, encumber or mortgage this Lease shall be null and void. The consent
by Landlord to any assignment, mortgage, encumbrance, or use of the Premises by
others shall not constitute a waiver of Landlord's right to withhold its
consent to any other assignment, mortgage, encumbrance or use by others of the
Premises.
If Landlord shall consent to an assignment pursuant to a request from Xxxxxx,
Tenant shall cause to be executed by its assignee or sublessee an agreement to
perform faithfully and to assume and be bound by all of the terms, covenants,
conditions, provisions and agreements of this Lease for the period covered by
the assignment to the extent of the space assigned.
Further, Tenant may sublease all or a portion of the Premises to third parties
without the prior written consent of Landlord; provided, however, that Tenant
shall cause to be executed by its sublessee(s) an agreement that the sublease
is expressly subject to the terms and conditions of this Lease, that the
sublessee shall be bound by all of the terms, covenants, conditions, provisions
and agreements of this Lease for the period covered by the sublease, and that
Landlord may, in its discretion, pursue all remedies herein provided against
sublessee, Tenant or both, jointly or severally.
Section 1.062 Eminent Domain. If during the Term all of the Premises shall be
taken for any public or quasi public use under any statute or by the right of
eminent domain, or purchased under threat of such taking, this Lease shall
automatically terminate on the date on which the condemning authority takes
possession of the Premises ("Date of Such Taking").
If during the Term only part of the Premises is taken or purchased as set out
in this Section 6.02, and if in the reasonable opinion of Landlord substantial
alteration or reconstruction of the Premises is necessary or desirable as a
result thereof, Landlord shall have the right to terminate this Lease by giving
the Tenant at least thirty (30) days' written notice of such termination, and
this Lease shall terminate upon the date specified in such notice.
Notwithstanding the foregoing, if more than one-third (1/3) of the number of
square feet in the Premises is included in such taking or purchase, Tenant
shall have the right to terminate this Lease by giving Landlord at least thirty
(3O) days' written notice thereof, and this Lease shall terminate upon the Date
of Such Taking.
If either party exercises its right of termination hereunder, this Lease shall
terminate on the date as provided above; provided, however, that no termination
pursuant to notice hereunder may occur later than sixty (60) days after the
Date of Such Taking.
On any such date of termination under this Section 6.02, Tenant shall
immediately surrender to Landlord the Premises and all interests therein under
this Lease. Landlord may re-enter and take possession of the Premises and
remove Tenant
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therefrom if necessary, and the Minimum Rent and other monies due shall xxxxx
on the date of termination, except that if the date of the termination differs
from the Date of Such Taking, Minimum Rent and other charges shall xxxxx on the
later date in respect of the portion taken. After such termination, and on
notice from Landlord stating the Minimum Rent and other monies then owing,
Tenant shall forthwith pay Landlord such amounts.
If any portion of the Premises (but less than the whole thereof) is so taken,
and no rights of termination herein conferred are timely exercised, the Term of
this Lease shall expire with respect to the portion so taken on the Date of
Such Taking. In such event the Minimum Rent and other charges payable
hereunder with respect to such portion so taken shall xxxxx on such date, and
the Minimum Rent and other charges thereafter payable with respect to the
remainder not so taken shall be adjusted pro rata by Landlord in order to
account for the resulting reduction in the number of square feet in the
Premises.
Upon any such taking or purchase, Landlord shall be entitled to receive and
retain the entire award or consideration for the affected lands and
improvements, and Tenant shall not have nor advance any claim against Landlord
for the value of its property or its leasehold estate or the unexpired Term of
the Lease, or for costs of removal or relocation, or business interruption
expense or any other damages arising out of such taking or purchase. Nothing
herein shall give Landlord any interest in or preclude Tenant from seeking and
recovering for its own account from the condemning authority any award or
compensation attributable to the taking or purchase of Tenant's improvements,
chattels or trade fixtures, or the removal or relocation of its business. If
any such award made or compensation paid to either party specifically includes
any award or amount for the other, the party first receiving the same shall
promptly account therefor to the other.
Section 1.063 Events of Default. If during the Term any one or more of the
following acts or occurrences (any one of such occurrences or acts being
hereinafter called an "Event of Default") shall happen, Landlord may exercise
the rights set forth in Section 6.04 of this Lease or otherwise provided at law
or in equity:
(A) Tenant shall fail to pay any Minimum Rent, Additional Rent, or
other sums payable by Tenant under this Lease (or cure any other default
which is curable by the payment of money) as and when the same shall
become due and payable; or
(B) Tenant shall default in the performance of or compliance with
any of the other covenants, agreements, terms or conditions of this
Lease to be performed by Tenant (other than any default curable by
payment of money), and such default shall continue for a period of
fifteen (15) days after written notice thereof from Landlord to Tenant,
or, in the case of a default which cannot with due diligence be cured
within fifteen (15) days, Tenant shall fail to proceed promptly after
the giving of such notice and with all due diligence cure such default;
or
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(C) Tenant shall be become insolvent or unable to pay its debts as
they become due, or Tenant notifies Landlord that it anticipates either
condition; Tenant takes any action to, or notifies Landlord that Tenant
intends to file a petition under any section or chapter of the United
States Bankruptcy Code, as amended from time to time, or under any
similar law or statute of the United States or any state thereof; or a
petition shall be filed against Tenant under any such statute, or Tenant
or any creditor of Tenant notifies Landlord that it knows that such
petition will be filed; or a receiver or other custodian shall be
appointed for Tenant, whether or not the same shall relate to their
interests in the leasehold; or
(D) If, within sixty (60) days after the filing of an involuntary
petition in bankruptcy against Tenant or the commencement of any
proceeding against Tenant seeking any reorganization, composition,
readjustment or similar relief under any law, such proceeding shall not
have been dismissed; or if, within sixty (60) days after the
appointment, without consent or acquiescence of Tenant, of any trustee,
receiver or liquidator of Tenant, of all or any substantial part of the
properties of Tenant or of all or any part of the Premises, such
appointment shall not have been vacated or stayed on appeal or
otherwise; or if, within sixty (60) days after the expiration of any
such stay, such appointment shall not have been vacated, or if within
sixty (60) days after the taking of possession, without the consent or
acquiescence of Tenant, by any governmental office or agency pursuant to
statutory authority for the dissolution or liquidation of Tenant, such
taking shall not have been vacated or stayed on appeal or otherwise; or
(E) If the Premises shall be abandoned by Tenant, as shown by
failure to occupy the Premises, for a period of thirty (30) days; or
(F) If a tax lien or a mechanic's and/or materialmen's lien is filed
against any property of Tenant, or Tenant does or permits to be done
anything which creates a lien upon the Premises, and such lien is not
discharged as herein provided; or
(G) Tenant ceases to conduct business from the Premises.
Section 1.064 Remedies Upon Default. Upon the occurrence of any Event of
Default, Landlord shall have the option to pursue any one or more of the
following remedies without the notice or demand whatsoever:
(A) Give Tenant written notice of intent to terminate this Lease
on the date specified therein, whereupon Tenant's right to possession of
the Premises shall cease and this Lease, except as to Tenant's
liability, shall be terminated.
In the event this Lease is terminated in accordance with the provisions
of this Section 6.04(a), Tenant shall remain liable to Landlord for
damages in an amount equal to the rent and other sums which would have
been owing by
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Tenant hereunder for the balance of the term had this Lease not been
terminated, less the net proceeds, if any, of any reletting of the
Premises by Landlord subsequent to such termination, after deducting all
Landlord's reasonable expenses including, without limitation, all
repossession costs, brokerage commissions, legal expenses, attorneys'
fees, expenses of employees, alteration and repair costs and expenses of
preparation for such reletting. Landlord shall be entitled to collect
such damages from Tenant monthly on the days on which the rent and other
charges would have been payable hereunder if this Lease had not been
terminated. Alternatively, at the option of the Landlord, in the event
this Lease is so terminated, Landlord shall be entitled to recover
forthwith against Tenant as damages for loss of the bargain, and not as
a penalty, an aggregate sum, which at the time of such termination of
this Lease represents the excess, if any, of the aggregate of the rent
and all other charges payable by Tenant hereunder that would have
accrued for the balance of the term, discounted to the then present
value of such aggregate sum, plus that portion of any leasing commission
paid by Landlord for which is applicable to the unexpired Term, less the
amount of loss for such period that Tenant proves could be reasonably
avoided.
(B) Re-enter and take possession of the Premises or any part
thereof, and repossess the same as Xxxxxxxx's former estate and expel
Tenant and those claiming through or under Tenant, and remove the
effects of both or either, without being deemed guilty of any manner of
trespass, and without prejudice to any remedies for arrears of rent or
Preceding breach of covenants or conditions.
Should Landlord elect to re-enter as provided in this Section 6.04(8) or
should Landlord take Possession Pursuant to legal Proceedings or
pursuant to any notice Provided for by law, Landlord may, from time to
time, without terminating this Lease, relet the Premises or any Part
thereof in Landlord's or Tenant's name, but for the account of Tenant,
for such term or terms (which may be greater or less than the Period
which would otherwise have constituted the balance of the Term of this
Lease, and on such conditions and upon other terms (which may include
concessions of free rent and alteration and repair of the Premises) as
Landlord, in its sole discretion, may determine, and Landlord may
collect and receive the rents therefor. Landlord shall in no way be
responsible or liable for any failure to relet the Premises, or any part
thereof, or for any failure to collect any rent due upon such
reletting. No such re-entry or taking possession of the Premises by
Landlord shall be construed as an election on Xxxxxxxx's Part to
terminate this Lease unless a written notice of such intention be given
to Tenant. No notice from Landlord hereunder or under a forcible entry
and detainer statute or similar law constitutes an election by Landlord
to terminate this Lease unless such notice specifically so states.
Landlord reserves the right following any such re entry and/or reletting
to exercise its right to terminate this Lease by giving Tenant such
written notice, in which event the Lease will terminate as specified in
said notice.
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In the event that Landlord does not elect to terminate this Lease but
takes possession as provided for in this Section 6.04(B), Tenant shall
pay to Landlord the rent and other charges as herein provided which
would be payable hereunder if such repossession had not occurred, less
the net proceeds, if any, of any reletting of the Premises after
deducting all Landlord's reasonable expenses including, without
limitation, all repossession costs, brokerage commissions, legal
expenses, attorneys' fees, expenses of employees, alteration and repair
costs and expenses of preparation for such reletting. Tenant shall pay
such rent and other sums to Landlord monthly on the days on which the
rent would have been payable hereunder if possession had not been
retaken.
No payments of money by Tenant to Landlord after the expiration or other
termination of the Term or after the giving of any such notice by Landlord to
Tenant shall reinstate or continue to extend the Term, or make ineffective any
notice given to Tenant prior to the payment of such money. After the service
of notice or the commencement of a suit, or after final judgment granting
Landlord possession of the Premises, Landlord may receive and collect any sums
due under the Lease, and the payment thereof shall not make ineffective any
notice, or in any manner affect any pending suit or any judgment theretofore
obtained.
Section 1.065 Damage by Fire or Other Casualty. If the Premises shall be
damaged by fire or other casualty not arising from the fault or negligence of
Tenant or its servants, agents, employees, invitees or licensees, except as
otherwise provided by this Section 6.05, the damages shall be repaired by and
at the expense of Landlord with reasonable promptness; provided always,
however, and upon the express condition that there are funds available to
Landlord from casualty insurance policy proceeds actually paid to and received
by Landlord for such repair work; and provided further that such duty to repair
by Landlord shall at all times be subject to obtaining all necessary government
approvals and subject to the approval and consent of the then mortgagee and the
willingness of such mortgagee to make the proceeds of casualty insurance
policies payable to such mortgagee available to Landlord for such purposes.
The Minimum Rent and other charges shall be equitably abated until such repairs
shall be made according to the part of the Premises which is usable by Tenant.
Tenant shall repair or replace its own improvements, furniture, trade fixtures
and equipment. Landlord shall not be liable for any delay caused by
governmental action, or lack thereof, shortages or unavailability of materials
and/or supplies, labor disputes, strikes, slowdowns, job actions, picketing,
secondary boycotts, fire or other casualty, delays in transportation, acts of
God, requests of any governmental agencies or authorities, acts of declared or
undeclared war, public disorder, riot, or civil commotion, or due to any cause
beyond the reasonable control of Landlord.
If the Premises are totally damaged or are rendered wholly untenantable by fire
or other casualty, or if Landlord's architect certifies that it cannot be
repaired within one hundred eighty (180) days of the casualty, or if Landlord
shall decide not to repair the same, or shall decide to demolish the Premises
or not to rebuild it, then Landlord shall,
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within ninety (90) days after such fire or other casualty, give Tenant notice
of such decision, and thereupon the Term shall expire ten (10) days after such
notice is given, and Tenant shall vacate the Premises and surrender the same to
Landlord.
If Landlord does not substantially complete the repair and restoration of the
Premises within twelve (12) months from the date of the casualty (subject to
excusable delays), Tenant shall have the right to cancel and terminate this
Lease upon delivery of notice to Landlord delivered not less than thirty (30)
days prior to the expiration of the aforesaid twelve (12) month period.
Tenant waives the benefit of any statutes of the state allocating insurance
proceeds or requiring application thereof in specific ways or relieving Tenant
of rental obligations and agrees that Tenant will not be relieved of the
obligations to pay the Minimum Rent or any other charges in case of damage to
or destruction of the Premises, except as provided by this Lease.
Anything contained in this Lease to the contrary notwithstanding, Landlord
shall not obligated to expend any funds in connection with any repair or
restoration work in excess of the proceeds of insurance policy payments which
are made available to Landlord by insurance carriers and by any mortgagee of
the Premises. Landlord's obligations in connection with such repair and/or
restoration work shall and are hereby strictly limited to the replacement of
the basic building area as demised by Landlord to Tenant as of the Commencement
Date of the Term hereof and in no event shall Landlord be obligated to replace,
repair or restore any improvements to the Premises or alterations thereof
installed therein by or on behalf of Tenant, nor shall Landlord be obligated in
any event whatsoever to replace, repair, or restore Tenant's leasehold
improvements, personal property, furniture, fixtures, equipment or the like.
Tenant shall give immediate written notice to Landlord of any damage caused to
the Premises by fire or other casualty.
Section 1.066 Subrogation. Notwithstanding anything to the contrary contained
herein, Landlord and Tenant hereby mutually waive and release their respective
rights of recovery against one another and their officers, agents and employees
for any damage to real or personal property, including resulting loss of use,
interruption of business, and other expenses occurring as a result of the use
or occupancy of the Premises to the extent of insurance coverage which would be
included in a standard "all-risk" or special form policy of property insurance.
Landlord and Tenant agree that all policies of insurance obtained by them
pursuant to the terms of this Lease shall contain provisions or endorsements
thereto waiving the insurer's rights of subrogation with respect to claims
against the other, and, unless the policies permit waiver of subrogation
without notice to the insurer, each shall notify its insurance companies of the
existence of the waiver and indemnity provisions set forth in this Lease.
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ARTICLE VII.
Miscellaneous Provisions
Section 1.071 Administrative Service Charges. Tenant recognizes that its
failure to timely pay all of its obligations set forth in this Lease will
result in and cause monetary losses to Landlord above and beyond the amount
unpaid by Tenant. Therefore, in addition to all other remedies provided
Landlord, any and all payments, whether for rentals due or other charges,
adjustments or assessments, which shall remain unpaid by the tenth (10th) day
of the month in which such payments shall be due, shall be subject to an
administrative service charge of fifteen percent (15%) of the total amount then
due.
Section 1.072 Late Charges. In addition to all other remedies provided
Landlord, and in addition to the administrative service charge herein
described, all amounts which shall remain unpaid ten (10) days after their due
dates shall bear interest at the rate of ten percent (10%).
Section 1.073 Holding Over. If, with Landlord's written consent, Tenant remains
in possession of the Premises after the expiration or other termination of the
Term, Tenant shall be deemed to be occupying the Premises on a month-to-month
tenancy only, at a monthly rental equal to one and ten hundredths (1.10) times
the last Minimum Rent and other charges payable hereunder or such other rental
as is stated in such written consent, and such month-to-month tenancy may be
terminated by Landlord or Tenant on the last day of any calendar month by
delivery of at least ten (10) days' advance notice of termination to the other.
If, without Xxxxxxxx's written consent, Xxxxxx remains in possession of the
Premises after the expiration or other termination of the Term, Tenant shall be
deemed to be occupying the Premises upon a tenancy at will only, at a monthly
rental equal to one and one-half (1.5) times the last Minimum Rent and other
charges payable hereunder. Such tenancy at will may be terminated by Landlord
at any time by notice of termination to Tenant, or by Tenant on the last day of
any calendar month by at least three (3) days' advance notice of termination to
Landlord.
Section 1.074 Notices. Any notices and demands required or permitted to be
given by either party to the other pursuant to this Lease shall be in writing
and shall be sent by United States mail, with proper postage prepaid, certified
mail, return receipt requested, addressed to the parties at the respective
addresses set out below or delivered in person to same:
Landlord: Tenant:
Xxxxxx, L.L.C. Megabank Financial Corporation
ATTN: Xxxxx Xxxxxx ATTN: Xxxxxx X. Xxxxxxxx
0000 Xxxxx Xxxxxxxx Xxx 0000 Xxxx Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
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Either party hereto may change its payment and notice addresses at any time by
giving notice thereof to the other party in accordance with this Section 7.04.
The foregoing notice provisions shall in no way prohibit notice from being
given as provided in the Rules of Civil Procedure of the state of Colorado, as
the same may be amended from time to time
Section 1.075 Venue. All monetary obligations of Landlord and Tenant
(including, without limitation, any monetary obligation of Landlord or Tenant
for any breach of the respective covenants, duties, or obligations of Landlord
or Tenant hereunder) are performable exclusively in Arapahoe County, Colorado,
and Landlord and Tenant agree that the venue for all actions or causes of
actions relating to this Lease shall be in such county. Each party waives all
rights to claim that venue for any such action or cause of action lies in any
place other than said county.
Section 1.076 Statutory Remedies Waiver. Tenant hereby waives and releases each
and every right it may now or in the future have under civil statutes,
including, but not limited to, any right Tenant may have had to a lien against
Xxxxxxxx's property or rents due under the Lease in the event of a breach by
Landlord of the terms of this Lease.
Section 1.077 Brokerage. Each of the parties hereto represents and warrants to
the other that it has dealt with no broker, and only with each other and their
direct employees, in connection with the negotiation or execution of this
Lease. Each of the parties agrees to indemnify and hold the other harmless
from and against any and all damages, losses, costs, or expenses including,
without limitation, all attorneys' fees and disbursements incurred by reason of
any claim of or liability to any other broker or other person claiming by,
through or under each of them, respectively, for commissions or other
compensation or charges with respect to the negotiation, execution and delivery
of this Lease.
Section 1.078 Jury Trial Waiver. Landlord and Tenant do hereby waive trial by
jury in any action, proceeding or counterclaim brought by either of the Parties
against the other on any matter whatsoever arising out of or in any connection
with this Lease, the relationship of Landlord and Tenant, Xxxxxx's use or
occupancy of the Premises, and/or any claim for injury or damage, or any
emergency or statutory remedy.
Section 1.079 Force Majeure. Any obligation of Landlord (excluding financial
obligations) which is delayed or not performed due to acts of God, strike,
riot, shortages of labor or materials, war (whether declared or undeclared),
governmental laws, regulations or restrictions, governmental action, or lack
thereof, or any other causes of any kind whatsoever which are beyond Landlord's
reasonable control, shall not constitute a default hereunder and shall be
performed within a reasonable time after the end of such cause for delay or
nonperformance.
Section 7.10 Severability. If any term or provision of this Lease or the
application
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thereof to any person or circumstances shall, to any extent, be illegal,
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those to which it
is held invalid or unenforceable, shall not be affected thereby, and all other
terms and provisions of the Lease shall be valid and enforced to the fullest
extent permitted by law.
Section 7.11 No Set-Off. 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 a deed of trust then covering the Premises or
any portion thereof and a reasonable opportunity is granted to Landlord and
such holder to correct such violation.
Section 7.12 Relationship of Parties. Nothing contained in this Lease shall
create any relationship between the parties hereto other than that of Landlord
and Tenant, and it is acknowledged and agreed that Landlord in no way or for
any purpose becomes a partner of Tenant in the conduct of its business, or a
joint venture or a member of a joint or common enterprise with Tenant.
Section 7.13 Successors Bound. Except as specifically provided herein, the
covenants, terms, and conditions contained in this Lease shall apply to and
bind the heirs, successors, executors, administrators and assigns of the
Parties.
Section 7.14 Interpretation.
(A) Whenever in this Lease any words of obligation or duty are
used, such words or expressions shall have the same force and effect as
though made in the form of covenants.
(B) Words of any gender used in this Lease shall be held to
include any other gender, and words in the singular number shall be held
to include the plural, when the sense requires.
(C) All pronouns and any variances thereof shall be deemed to
refer to the neuter, masculine, feminine, singular or plural as the
identity of the Tenant requires.
(D) This Lease shall be strictly construed neither against Landlord
nor Tenant. No remedy or election given by any provision in this Lease
shall be deemed exclusive unless so indicated, but each shall, wherever
possible, be cumulative with all other remedies in law or equity as
otherwise specifically provided. Each provision hereof shall be deemed
both a covenant and a condition and shall run with the land.
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(E) If, and to the extent that, any of the provisions of any
amendment, modification or rider to this Lease conflict or are otherwise
inconsistent with any of the preceding provisions of this Lease, whether
or not such inconsistency is expressly noted, the Provisions of such
amendment, modification or rider shall prevail.
(F) Xxxxxx agrees that all of Tenant's covenants and agreements
herein contained providing for the payment of money and Tenant's
covenant to remove mechanics' liens shall be deemed conditions as well
as covenants, and that if default be made in any such covenants,
Landlord shall have all of the rights provided for herein.
(G) The Parties mutually agree that the headings and captions
contained in this Lease are inserted for convenience of reference only,
and are not to be deemed part of or to be used in construing this Lease.
(H) Landlord has made no representations or promises with respect
to the Premises except as expressly contained herein. Xxxxxx has
inspected the Premises and agrees to take the same in an "as-is"
condition. Landlord shall have no obligation to do any work in and to
the Premises to render them ready for occupancy and use by Tenant.
Section 7.15 Time of the Essence. Time is of the essence hereof and each party
shall perform its obligations and conditions hereunder within the time hereby
required.
Section 7.16 Easements. The Landlord shall have the right to grant any
easements on, over, under and above the Premises for such purposes as Landlord
determines, provided that such easements will not materially interfere with
Tenant's business.
Section 7.17 Short Form Lease. Tenant shall not record this Lease or a
memorandum hereof without the prior written consent of Landlord. Upon
Xxxxxxxx's request, Xxxxxx agrees to execute and acknowledge a short form lease
for recordation indicating the names and addresses of Landlord and Tenant, a
description of the Premises, the Term of the Lease, the Commencement and
Termination Dates, and options for renewal, if any, but omitting rent and other
terms of this Lease.
Section 7.18 Assignment of Rents. Leases. Xxxxxx agrees to an assignment by
Xxxxxxxx of rents and of the Landlord's interest in this Lease to a mortgagee,
if the same be made by Landlord.
Xxxxxx further agrees that, in the event of such assignment, Tenant shall give
to said mortgagee a copy of any request for performance by Landlord or notice
of default by Xxxxxxxx; and, in the event Landlord fails to cure such default,
Tenant shall give such mortgagee a reasonable period, commencing on the last
day on which Landlord could cure such default, in which to cure same.
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Section 7.19 Intent of the Parties - Net Lease. It is the intent of the
parties hereto that this Lease be a Net Lease with Landlord incurring no
obligation, monetary or otherwise, which is not specifically and expressly
provided for herein.
Section 7.20 Environmental Provisions.
(A) Covenants and Agreements. Tenant covenants and agrees from the
date hereof and so long as this Lease shall remain in effect not to
cause or permit the presence, use, generation, release, discharge,
storage, disposal or transportation of any Hazardous Materials (as
hereinafter defined) on, under, in, about, to, or from the Premises by
Tenant, Tenant's agents, representatives, employees, contractors,
guests, licensees or invitees, except for the storage and dispensing of
petroleum products incident to Tenant's use of the Premises as described
in Section 1.05 above. Notwithstanding the foregoing, Tenant hereby
covenants and agrees to promptly remove from the Premises, any Hazardous
Materials discovered thereon which have been used, discharged, disposed
of or stored thereon by Tenant or Tenant's agents, representatives,
employees, contractors, guests, licensees or invitees, and to comply in
all respects with any and all federal, state, and local governmental
laws, codes, ordinances, and regulations governing such removal and
disposal, whether now in effect or hereafter enacted, with title to all
such Hazardous Materials to remain, and be stored or disposed of, in
Tenant's name.
As used herein, the term "Hazardous Materials" shall include, without
limitation, asbestos or any substance containing asbestos and deemed
hazardous under any Hazardous Material Law (defined below), the group of
organic compounds known as polychlorinated biphenyls, flammable
explosives, radioactive materials, chemicals known to cause cancer or
reproductive toxicity, pollutants, effluents, contaminants, emissions or
related materials and any items included in the definition of hazardous
toxic waste, materials or substances under any law relating to
environmental conditions and industrial hygiene, whether now in effect
or hereafter enacted, including, without limitation, the Resource
Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. Sec.6901 et
seq., the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 ("CERCLA"), 42 U.S.C. Sec.9601-9657, as amended by
the Superfund Amendments and Reauthorization Act of 1986 ("XXXX"), the
Hazardous Materials Transportation Act, 49 U.S.C. Sec.6901 et seq., the
Federal Water Pollution Act, 33 U.S.C. Sec.7401, et seq., the Toxic
Substances Control Act, 15 U.S.C. Sec.2601-2629, the Safe Drinking Water
Act, 42 U.S.C. Sec.300f-300j, and all similar federal, state and local
environmental statutes, ordinances, and the regulations, orders, decrees
now or hereafter promulgated thereunder (collectively, the "Hazardous
Material Law").
(B) Environmental Indemnification. Xxxxxx agrees to indemnify and
forever hold harmless Landlord, its agents, successors, and assigns, and
Xxxxxxxx's
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mortgagee(s), as their interests may appear, from all claims, losses,
damages, expenses and costs, including, but not limited to, attorneys'
fees and cleanup costs, incurred by reason of Tenant's use, storage,
maintenance or removal of Hazardous Materials in, on, or about the
Premises, or any part thereof Landlord agrees to indemnify and forever
hold harmless Tenant, its successors and assigns, from all claims,
losses, damages, expenses and costs, including, but not limited to,
attorneys' fees and cleanup costs, incurred by reason of Landlord's use,
storage, maintenance or removal of Hazardous Materials in, on, or about
the Premises or any part thereof.
(C) Remedial Work. In the event any investigation or monitoring of
site conditions or any clean-up, containment, restoration, removal, or
other remedial work (collectively, the "Remedial Work") is required
under any applicable federal, state or local law or regulation, by any
judicial order, or by any governmental entity, or in order to comply
with any agreements affecting the Premises because of, or in connection
with, any occurrence or event described in subparagraph 7.21(A) above,
Tenant shall perform or cause to be performed the Remedial Work in
compliance with such law, regulation, order or agreement. All Remedial
Work shall be performed by one or more contractors, selected by Xxxxxxxx
and under the supervision of a consulting engineer selected by Landlord
in accordance with the remediation plan promulgated by an environmental
consulting firm. In the event Tenant shall fail to timely commence, or
cause to be commenced or fail to diligently prosecute to completion,
such Remedial Work, Landlord may, but shall not be required to, cause
such Remedial Work to be performed, and all costs and expenses thereof,
or incurred in connection therewith shall be costs within the meaning of
subparagraph 7.21(B) above. All such costs shall be due and payable upon
demand by Landlord.
(D) Notice of Claim. Tenant shall give notice to Landlord of any
claim, action, administrative proceeding (including, without limitation,
informal proceedings), or other demand by any governmental agency or
other third party involving Hazardous Materials, costs and/or Remedial
Work at the time such claim or other demand first becomes known to
Tenant. Receipt of any such notice shall not be deemed to create any
obligation on Landlord to defend or otherwise respond to any claim or
demand
(E) Survival. The provisions of this Section 7.21 shall be in
addition to any other obligations and liability Tenant may have to
Landlord at law or equity and shall expressly survive the expiration of
the Term or other termination of this Lease.
Section 7.21 Status Statement. Upon written request by Xxxxxxxx, Xxxxxx
xxxxxx agrees to deliver within fifteen (15) days after such request, a
certificate to Landlord or to any proposed mortgagee or purchaser as designated
by Landlord, in the form supplied, stating (if such be the case) that:
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(I) This Lease is unmodified and in full force and effect, or if
there have been any modifications that this Lease is in full force and
effect as modified and identify the modification agreements, or if this
Lease is not in full force and effect, the certificate shall so state;
(J) The Commencement Date of the Term and the Termination Date and
the terms of any extension options Tenant has, if any;
(K) The date to which the rent has been paid under this Lease;
(L) The amount of the security deposit, if any, being held by
Landlord;
(M) Whether or not there exists any default by Tenant in payment of
any rent or other sum of money under this Lease;
(N) Whether or not there exists any default by Landlord or Tenant
under this Lease with respect to which a notice of default has been
served, and if there is any such default, specifying the nature and
extent thereof; and
(O) Any other information reasonably requested by Landlord or its
mortgagee or purchaser.
In the event that Tenant should fail or refuse to sign a certificate in
accordance herewith within fifteen (15) days following written request by
Landlord, the Landlord shall have the authority to sign such a certificate as
Tenant's attorney-in-fact for limited purpose, it being stipulated that such
power of attorney is coupled with an interest in Landlord and is irrevocable.
Section 7.22 Definition of Lease. "Lease" or "this Lease" shall mean and
consist of this Lease and the following Exhibits:
Exhibit A: Legal Description (Page 1)
Site Plan (Page 2)
Exhibit B: Tenant Acceptance Letter
Tenant: Landlord:
MEGABANK FINANCIAL CORPORATION NAGRAM, L.L.C.,
A,COLORADO CORPORATION A COLORADO LIMITED
LIABILITY COMPANY
By: /s/ Xxxxxx X. Xxxxxxxx, By: /s/ Xxxxx Xxxxxx
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Xxxxxx X. Xxxxxxxx, President Its Managing Member
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EXHIBIT A
LEGAL DESCRIPTION
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EXHIBIT A
SITE PLAN
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EXHIBIT B
TENANT ACCEPTANCE LETTER
Lease Dated: Effective December 29, 1994
Landlord: NAGROM, L.L.C., A COLORADO LIMITED LIABILITY COMPANY
Tenant: MEGABANK FINANCIAL CORPORATION, A COLORADO
CORPORATION
Premises: 0000 Xxxx Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx 00000
The undersigned, Tenant under the above described Xxxxx, confirms, as of the
date hereof, the following;
(1) That it is in full and complete possession of the Premises, such
possession having been delivered by the Landlord and been accepted by
the undersigned on December 29, 1994.
(2) That the Premises are made available for use of the undersigned, its
employees and invitees.
(3) That all duties of an inducement nature required of Landlord have been
fulfilled.
(4) That said Lease is in full force and effect; that there are no
existing defaults on the part of the Landlord under the terms thereof
except as follows (if none, so indicate): None.
(5) That no rents have been prepaid except as provided in Lease; that the
undersigned does not now have or hold any claims against Landlord
which might set off or work as a credit against future accruing rents.
(6) That rents provided in said Xxxxx commence to accrue the 29th day of
December, 1994 and such date shall be the Commencement Date.
(7) That the Term of said Xxxxx is one hundred twenty (120) months and the
Termination Date is the 31st day of December, 2004.
Tenant:
MEGABANK FINANCIAL CORPORATION
A COLORADO CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx, President
