Exhibit 10.18
RETAIL LEASE
SOUTHBRIDGE PLAZA SHOPPING CENTER
LITTLETON, COLORADO
Landlord: Southbridge Plaza, L.P. a Colorado limited partnership
Tenant: Equitable Bank of Littleton, N.A.
Date: Executed on April 1, 1991
Term Commencement - October 1, 0000
XXXXXXXXXXX XXXXX XXXXXXXX XXXXXX LEASE
This Lease is made and entered into on this 1st day of April, 1991, between
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SOUTHBRIDGE PLAZA, L.P., a Colorado limited partnership ("Landlord") and
Equitable Bank of Littleton, N.A. ("Tenant").
RECITALS
A. Xxx Xxxxxxxx and Associates, Ltd., as landlord, and Equitable Bank of
South Park, a national banking association then in organization, as tenant,
entered into that certain office lease dated November 5, 1982, and amended as of
October 1, 1986 (the "Prior Lease"). The landlord's interest in said Prior Lease
was assigned to Landlord. Tenant is the successor in interest to Equitable Bank
of South Park.
B. Landlord and Tenant have negotiated the terms of a new lease, as more
fully set forth herein, with a term to commence immediately upon the expiration
of the Prior Lease.
In consideration of the rental and the mutual covenants and agreements
hereinafter contained, Landlord and Tenant hereby enter into the following Lease
(the "Lease"):
1. PREMISES. Landlord leases to Tenant, and Tenant leases from Landlord,
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a certain single-story commercial office building and drive-up facility (the
"Leased Premises") in the Southbridge Plaza Shopping Center (the "Shopping
Center"), located in Littleton, Colorado. The Shopping Center, its improvements
and location of the Leased Premises are as outlined on Exhibit A attached
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hereto. The drive-up facilities which are part of the Leased Premises shall not
be included within the determination of Tenant's Net Rentable Area. The Leased
Premises does include a ____% undivided interest in the foyer and bathrooms,
which interest is included in the Net Rentable Area.
2. SUMMARY. The terms and conditions of this Lease are summarized as
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follows:
TENANT'S NAME: Equitable Bank of Littleton, N.A.
TYPE OF ENTITY: ______ corporation ______ partnership
______ limited partnership ______ individual
X other national association
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TENANT'S
ADDRESS: 000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
USE OF
PREMISES: Banking Facility
GUARANTOR'S
NAME: N/A
GUARANTOR'S
ADDRESS: N/A
LEASED
PREMISES SPACE
NUMBER(S): N/A
NET RENTABLE
AREA OF THE
LEASED
PREMISES: 6,423 square feet, plus 66% of 565 square feet (foyer and
bathroom) for a total of 6,796 square feet
TERM OF LEASE: Five (5) years
COMMENCEMENT
DATE: October 1, 1991
TERMINATION
DATE: September 30, 1996
MONTHLY BASE
RENT: $5,097.00 (subject to adjustment)
TENANT'S PRO
RATA SHARE: 4.2% based on 6,796 square feet and the total net rentable
area of the Shopping Center which may change from time to
time
SECURITY
DEPOSIT: $ -0-
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TENANT
FINISH PERIOD
(if any): N/A
3. TERM. This Lease shall be for a term of five (5) years, beginning on
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October 1, 1991 (such date determined as above to be hereinafter referred to as
the "Commencement Date"), and terminating September 30, 1996, unless sooner
terminated as herein provided.
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3.1. Right to Extend Lease Term. If Tenant is not then in default
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under the provisions of this Lease, Tenant shall have the option to extend the
term of this Lease for one additional five-year extension period beginning on
October 1, 1996, and ending on September 30, 2001. As a condition to the
exercise of such option, Tenant shall deliver written notice of Tenant's desire
to extend the term to Landlord no more than 12 months and no less than six
months prior to the expiration of the initial period of the term of this Lease.
Upon the giving of such notice by Tenant, Landlord and Tenant shall enter into
good faith negotiations intended to reach agreement upon the Base Rent for such
extension period. If Landlord and Tenant reach agreement upon the Base Rent for
such extension period by July 1, 1996, the term of this Lease shall be
automatically extended for such extension period without the necessity of any
further agreement or document. Such extension shall be upon all the terms,
covenants and conditions of the initial period of the term of this Lease except
that: (i) there shall be no further right to extend after the expiration of the
extension period; (ii) the limitation on Tenant's payment of Operating Expenses
set forth in Section 4.3.2 shall not apply during the extension period and (iii)
the amount of the Base Rent for each month of the extension period shall be an
amount agreed upon by Landlord and Tenant which reflects market rents for
similar space at the beginning of the extension period for the term of the
extension period. If Landlord and Tenant are unable to reach agreement upon the
Base Rent for such extension period by July 1, 1996, the option to extend the
term of this Lease granted pursuant to this Section 3.1 shall terminate and the
term of this Lease shall expire on September 30, 1996.
4. RENT.
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4.1. Base Rent. Base Rent under this Lease for the use of the Leased
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Premises shall be payable in lawful money of the United States, in monthly
installments in advance as follows:
October 1, 1991, through and including September 1, 1994:
$9.00 per Net Rentable Area (6,796 sq. ft.) per annum equal to
$5,097.00 per month;
October 1, 1994, through and including September 1, 1995:
$9.50 per Net Rentable Area (6,796 sq. ft.) per annum equal to
$5,380.17 per month;
October 1, 1995, through and including September 1, 1996:
$10.00 per Net Rentable Area (6,796 sq. ft.) per annum equal to
$5,663.33 per month.
Tenant agrees to pay Landlord such amount at: x/x Xxxx Xxxxxx, Xxx., 0000 Xxxxx
Xxxxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxxxxx 00000, or at such other place as Landlord
may from time to time designate in writing.
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4.2. Rental Concession. Notwithstanding any provision to the contrary
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contained herein, as a rental concession to Tenant, Landlord hereby permits
Tenant to occupy the Leased Premises without the obligation to pay Base Rent
during the months of October and November, 1991. Tenant shall, however, be
responsible for the payment of all other amounts due hereunder during such
months, including, without limitation, Tenant's pro rata share of Operating
Expenses, Real Estate Taxes and Insurance. Such rental concession granted to
Tenant shall be null and void ab initio if Tenant, at any time during the term
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of this Lease, shall default under the provisions of this Lease, and in such
event, Landlord, in addition to all other remedies of Landlord set forth in this
Lease or at law or equity, shall be entitled to recover from Tenant, in addition
to any other amounts to which Landlord may be entitled, an amount equal to such
rental concession.
4.3. CAM/Additional Rent. In addition to Base Rent, Tenant shall pay
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to Landlord in monthly installments, as additional rent, an amount equal to
Tenant's Pro Rata Share of Landlord's operating Expenses. "Tenant's Pro Rata
Share" is set forth in paragraph 2 of this Lease. "Landlord's Operating
Expenses" shall be defined as (i) all costs, expenses and disbursements involved
in owning, managing, maintaining and operating the Shopping Center and grounds,
including but not limited to material and supplies for maintenance, repair,
restoration and operation of the Shopping Center and grounds, all landscaping,
cleaning, snow and ice removal, and other services, all costs of heating, air
conditioning, water, sewer, gas, electricity and other utilities serving the
Common Areas (as hereinafter defined) of the Shopping Center, all insurance
costs, and all taxes and special assessments levied upon the Shopping Center,
grounds, fixtures and personal property used by Landlord, and the cost of all
professional services (but excluding legal fees for the collection of rent from
specific tenants); plus (ii) administrative and overhead expenses in an amount
equal to fifteen percent (15%) of all the foregoing costs. If Landlord installs
equipment or materials or makes other improvements to the Shopping Center and
grounds which are designed or intended to reduce Landlord's Operating Expenses
or to improve the operation of the Shopping Center and grounds, or are required
to comply with any applicable laws, orders or regulations of governmental
authorities enacted after the date hereof, the cost of such installation, or
allocable portion thereof to be amortized over such reasonable period as
Landlord shall determine in its sole discretion, shall be included in Landlord's
Operating Expenses. Except as otherwise expressly set forth herein, Landlord's
operating Expenses shall not include property additions and capital improvements
to the Property, alterations made for specific tenants, depreciation, interest
or principal amortization costs, income taxes paid by Landlord, any amounts
reimbursed to Landlord from sources other than payments by tenants as CAM, any
costs or fees related to lease negotiations and space planning costs. For
purposes of this Section 4.3, "capital improvements" shall mean only (i)
structural modifications to load bearing walls not occurring as a result of a
tenant's negligence or actions, (ii) replacement of an entire roof, and (iii)
replacement of the entire parking lot.
4.3.1. Payment of Additional Rent. Prior to January 1 of each
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calendar year following the calendar year in which this Lease commences (the
"Base Year"), Landlord shall furnish to Tenant a written statement showing in
reasonable detail the estimated Landlord's
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Operating Expenses for the next forthcoming calendar year. At the first monthly
rent payment date in such calendar year that occurs at least twenty (20) days
following Tenant's receipt of such statement and at each of the other monthly
rent payment dates during such year, Tenant shall pay to Landlord, as additional
rent, 1/12th of an amount equal to Tenant's Pro Rata Share of the estimated
annual Landlord's Operating Expenses. In the event of the inability of Landlord
for any reason to furnish said statement prior to January 1, Tenant shall pay,
at the monthly rent payment date next following Tenant's receipt of said
statement, any additional rent which shall have accrued prior to such payment
date.
On or before March 31 (or as soon thereafter as possible) in each calendar
year commencing with the calendar year after the Base Year, Landlord shall
furnish to Tenant a written statement showing in reasonable detail (i) the
actual Landlord's Operating Expenses incurred during the preceding calendar year
or portion thereof, and (ii) an itemized schedule of all Landlord's estimated
Operating Expenses during the then current calendar year. At the monthly rent
payment date that occurs at least twenty (20) days next following Tenant's
receipt of such statement, Tenant shall pay to Landlord, as additional rent, in
the event of an excess (or Tenant shall receive a refund, in the event of a
deficiency, in an amount equal to the difference between (i) the additional rent
payable by Tenant based upon the actual Landlord's Operating Expenses for the
preceding calendar year, and (ii) the actual additional rent paid by Tenant
based upon estimated Landlord's Operating Expenses for such year. Estimates of
Landlord's Operating Expenses shall be made exclusively by Landlord, based upon
Landlord's experience with actual costs and reasonable projections upon five (5)
days prior written notice Tenant may review the books and records of Landlord
from which Landlord's Operating Expenses are determined.
4.3.2. Cap on CAM. Notwithstanding anything contained herein
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to the contrary, the annual amount of estimated and Actual Operating Expenses
payable pursuant to the provisions of this paragraph 4.3 shall not exceed the
following amounts per square foot of Net Rentable Area for the following
calendar years:
1991 - $2.13 1995 - $2.84
1992 - $2.45 1996 - $2.98 (prorated
1993 - $2.57 accordingly to account for
1994 - $2.70 the expiration of this Lease
during the calendar year 1996)
4.4. Late Payment. All payments of Base Rent, and Additional Rent
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shall be paid when due, without deduction, setoff, abatement or demand. In
addition to any other remedies available to Landlord as a result of Tenant's
Default, if any installment of Base Rent, Additional Rent or any other sum to be
paid to Landlord pursuant to the terms of this Lease is not paid within 10 days
after such payment is due, Landlord shall be entitled to assess thereon a late
fee of 15% of the amount of the past due payment. Such sum shall also bear
interest at the lesser of 18% per annum, or the highest rate then allowed by
law, from the date due until paid. The payment of such interest shall not
excuse or cure any Default by Tenant under this Lease.
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5. SECURITY DEPOSIT. There is no security deposit.
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6. TAXES.
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6.1. Payment of Taxes by Tenant. Tenant covenants and agrees to pay
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promptly when due all personal property taxes on personal property of Tenant on
the Leased Premises and all federal, state and local income taxes, sales taxes,
use taxes Social Security taxes, unemployment taxes and taxes withheld from
wages or salaries paid to Tenant's employees, the nonpayment of which might give
rise to a lien on the Leased Premises or Tenant's interest therein, and to
furnish, if requested by Landlord, evidence of such payments.
6.2. Landlord's Sole Right to Contest Taxes. Landlord shall have the
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sole right to contest any taxes assessed against the Shopping Center. Landlord
shall pay to or credit Tenant with any abatement, reduction or recovery of any
taxes attributable to the lease term to the extent such abatement, reduction or
recovery reduces Tenant's Pro Rata Share of taxes for any calendar year within
the lease term, less Tenant's Pro Rata Share of all costs and expenses incurred
by Landlord, including attorneys' fees, in connection with such abatement,
reduction or recovery. This paragraph shall survive the termination or
expiration of the Lease.
7. RULES AND REGULATIONS. Tenant and Tenant's agents, employees and
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invitees shall fully comply with the Rules and Regulations of the Shopping
Center as promulgated by Landlord. At the execution of this lease, Landlord
does not have in effect any Rules and Regulations. However, Landlord shall have
the right to promulgate and subsequently amend such Rules and Regulations at
such times and in such manner as Landlord deems necessary or desirable for the
safety, care, cleanliness or proper operation of the Leased Premises and the
Shopping Center, and for the preservation of good order therein so long as any
such amendments do not materially affect Tenant's right to the quiet enjoyment
of the Leased Premises.
8. ASSIGNMENT OR SUBLEASE. Tenant shall not assign this Lease or sublet
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the whole or any part of the Leased Premises, or permit any other person except
agents and employees of Tenant to occupy the Leased Premises, or any part
thereof, without the prior written consent of Landlord, which consent may not be
unreasonably withheld. The term "assign" as used herein shall include (i) any
assignment of a part interest in this Lease, (ii) any assignment from any co-
tenant to another, (iii) any change in control or ownership of Tenant, and (iv)
if Tenant is a corporation, any type of transfer or assignment, whether by
merger, consolidation, liquidation or otherwise, or any change in the ownership
or control to vote a majority of Tenant's outstanding voting stock. Any
proposed use to be made of the Leased Premises by any permitted assignee or
subtenant must be consistent with the use contemplated hereunder, and must be
consistent with the use allowed under any applicable laws, orders or regulations
of governmental authorities. Consent of Landlord to one or more assignments or
subleases shall not operate as a release of Tenant's obligations hereunder, or
as a waiver of Landlord's rights under this paragraph to deny any subsequent
requests for assignment or
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subletting. Tenant agrees to reimburse Landlord up to $500.00 for all reasonable
expenses incurred in connection with any assignment or subletting, including but
not limited to attorneys' fees, lender approval fees, management fees and a
processing fee.
Landlord shall have the unlimited right to assign or collaterally assign
its interest under this Lease or the rent reserved hereunder, or to sell or
otherwise transfer the Shopping Center or any portion thereof. In the event of
any such assignment, sale or transfer (except by way of security only),
including a sale by foreclosure or deed in lieu thereof, Landlord shall be
entirely relieved of any and all liability under the terms and conditions of
this Lease that accrue after the date of the assignment, sale or transfer;
provided that any funds in the hands of Landlord at the time of such assignment,
sale or transfer, in which Tenant has an interest, shall be turned over to the
assignee or transferee. In the event of any such sale, Tenant shall attorn to
and become the tenant of Landlord's successor in interest.
9. There is no paragraph 9.
10. UTILITIES, REPAIRS, MAINTENANCE AND ALTERATIONS.
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10.1. Utility charges.
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10.1.1. Water, Sewage, etc. Tenant covenants and agrees to pay
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all charges for water, sewage disposal, electricity, light, power, telephone or
other utility services used or consumed in, or supplied to, the Leased Premises.
Should Landlord elect to supply any of such utility services to the Leased
Premises, Tenant shall purchase and pay for the same upon being invoiced by
Landlord therefor, at Landlord's actual cost. The determination of any such
utilities shall, at the option of Landlord, be either (a) by a separate meter
installed by Tenant at its expense, or (b) allocated by Landlord to Tenant on an
equitable basis.
10.1.2. Gas, Heat, etc. Landlord and Tenant acknowledge and
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agree that gas, heating, ventilating and air conditioning for the Leased
Premises is shared with other space ("Adjoining Space") in the building. If the
Adjoining Space is occupied, Tenant shall pay Landlord a pro rata share of the
gas, heating, ventilating and air conditioning charges, based upon relative
occupied square footage in the building. If the Adjoining Space is not
occupied, Tenant shall pay Landlord ninety-nine percent (99%) of such charges.
Notwithstanding, Landlord agrees to pay $25 towards the heating xxxx, if the
space is unoccupied each month.
10.1.3. General. Landlord shall incur no liability to Tenant
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in the event that any utility becomes unavailable from any source of supply or
for any reason not within Landlord's reasonable control. All utilities required
by Tenant and not provided by Landlord, as set forth above, shall be contracted
for by Tenant in Tenant's own name with the appropriate utility suppliers.
Tenant shall pay for all such utilities as from time to time invoiced by the
suppliers of such utilities. Landlord covenants and agrees to pay for all
utilities used or consumed in the Common Areas (as described in paragraph 13
hereof), subject to Landlord's
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right to receive from Tenant Tenant's Pro Rata Share of Operating Expense as
provided in paragraph 4.3. The parties acknowledge that a separate electricity
meter for the adjacent premises is located within the Leased Premises. Tenant
shall allow the relocation of said meter at no cost or expense to Tenant.
10.2. Landlord's Obligation to Repair and Maintain. Subject to
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paragraphs 4.3, 15 and 19, Landlord covenants and agrees to maintain, repair,
replace and keep the Common Areas (as hereinafter defined) and those portions of
the Shopping Center containing rentable areas that consist of foundations,
exterior weather walls (excluding storefronts and glass), structural subfloors
and roofs, the structural portions of bearing walls and structural columns and
beams, in good, safe and sanitary condition, order and repair and in accordance
with all applicable laws, ordinances, orders, rules and regulations of
governmental authorities having jurisdiction.
10.3. Tenant's Obligation to Repair and Maintain. Tenant
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covenants and agrees to maintain, repair, replace and keep the Leased Premises
(except only such parts thereof expressly the obligation of Landlord under
paragraph 10.2), including all leasehold improvements therein, whether installed
by Landlord or Tenant (including, without limitation, the entire storefront, all
ceilings, interior walls, floor coverings and glass, all Tenant's signs, and the
portion of the heating, ventilating and cooling equipment in, and for the
exclusive use of, the Leased Premises) and all of Tenant's furnishings, fixtures
and personal property in the Leased Premises, in good, safe and sanitary
condition, order and repair and in accordance with all applicable laws,
ordinances, orders, rules and regulations of governmental authorities having
jurisdiction; to pay all costs and expenses in connection therewith (including,
without limitation, costs and expenses for janitorial and cleaning services,
painting, replacement of damaged or broken glass and other breakable materials
in the Leased Premises and replacement of lights and light fixtures in or
serving the Leased Premises); and to contract for the same in Tenant's own name.
All maintenance and repairs by Tenant shall be done promptly, in a good and
workmanlike fashion, and without diminishing the original quality of the Leased
Premises or the Shopping Center.
10.4. Landlord's Alterations. Landlord may from time to time
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alter or change any of the improvements, or permit such to be altered or
changed, on the Shopping Center (including the Common Areas) by the
construction, removal, relocation or alteration of such improvements. In the
course of conducting any such alterations, Landlord shall have the right to make
alterations, structural or otherwise, to the Leased Premises, including services
and utilities for the Leased Premises, but in so doing shall to the extent
possible minimize any interference with Tenant's use and occupancy of, or access
to the Leased Premises.
10.5. Tenant's Alterations. Tenant covenants and agrees not to
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improve, change, alter, add to, remove or demolish any improvements on the
Leased Premises, ("Changes"), without the prior written consent of Landlord,
which consent shall not be unreasonably withheld, provided Tenant complies with
all conditions which may be imposed by Landlord, in its
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reasonable discretion, in connection with such consent; and unless Tenant pays
to Landlord the reasonable costs and expenses of Landlord for architectural,
engineering or other consultants which may be reasonably incurred by Landlord in
determining whether to approve any such Changes. If such consent is given, no
such Changes shall be permitted unless Tenant shall have procured and paid for
all necessary permits and authorizations from any governmental authorities
having jurisdiction; unless such Changes will not reduce the value of the
Shopping Center, and will not affect or impair existing insurance on the
Shopping Center; and unless Tenant, at Tenant's sole cost and expense, shall
maintain or cause to be maintained workmen's compensation insurance covering all
persons employed in connection with the work and obtains liability insurance
covering any loss or damage to persons or property arising in connection with
any such Changes and such other insurance or bonds as Landlord may reasonably
require. Tenant covenants and agrees that any such Changes approved by Landlord
shall be completed with due diligence and in a good and workmanlike fashion and
in compliance with all conditions imposed by Landlord and all applicable
permits, authorizations, laws, ordinances, orders, rules and regulations of
governmental authorities having jurisdiction and that the costs and expenses
with respect to such Changes shall be paid promptly when due and that the
changes shall be accomplished free of liens of mechanics and materialmen. Except
as otherwise provided herein, Tenant covenants and agrees that all such Changes
shall become the property of the Landlord at the expiration of the Lease Term
or, if Landlord so requests, Tenant shall, at or prior to expiration of the
Lease Term and at its sole cost and expense, remove such Changes and restore the
Leased Premises to their condition prior to such Changes. The provisions and
requirements of paragraph 18 hereof, including but not limited to Tenant's
obligation to secure a bond(s) indemnifying Landlord, shall apply to all
Changes.
All trade fixtures (including drapes) installed by or at the expense of
Tenant, susceptible of being removed from the Leased Premises without
substantial damage thereto, shall remain the property of Tenant and Tenant shall
be entitled to remove the same or any part thereof (subject to Landlord's option
to require the removal of same at Tenant's expense) at the expiration of the
term of this Lease, provided there is then no existing default in the terms,
covenants, conditions, provisions, and agreements of this Lease and provided
that any damage to the Leased Premises caused by the installation, maintenance
or removal of such trade fixtures shall be repaired and restored forthwith by
Tenant at its own expense. Notwithstanding Tenant's right to remove trade
fixtures, the following items shall not be removed and shall remain the property
of the Landlord upon the termination of this Lease: all plumbing fixtures; all
heating and air conditioning units, controls, wiring and ducting; all ceilings,
light fixtures, lens and lighting tubes and bulbs; all glass doors and windows;
all electrical outlets and wiring; and all carpets.
11. USE OF LEASED PREMISES. The Leased Premises are leased to Tenant, and
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are to be used by Tenant, its assignees or sublessees, if any, for the purpose
of general office, commercial bank and related activities of the bank and any
parent bank holding company usage (the "Permitted Use") and for no other
purpose. Tenant shall use the Leased Premises in such a manner as to not
interfere with the rights of other tenants in the shopping Center, or in any way
cause rates of insurance covering the Leased Premises or any portion of the
Shopping Center to
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increase. Tenant shall comply with any applicable laws, orders or regulations of
governmental authorities, now or hereafter enacted, and the requirements of any
Board of Fire Underwriters now or hereafter constituted, in connection with its
use of the Leased Premises. Tenant shall keep the Leased Premises in a clean and
sanitary condition and shall prevent waste, damage or injury to the Leased
Premises. In addition, and without limiting the generality of the foregoing,
Tenant shall not use or occupy the Leased Premises in violation of any
Environmental Requirement (as hereinafter defined) or cause, permit or suffer
the existence or the commission by Tenant, its agents, employees, contractors,
or invitees, or by any other persons of any violation of the Environmental
Requirements upon, about or in the Leased Premises. Specifically, Tenant shall
not cause, permit or suffer any Hazardous Material (as hereinafter defined) to
be brought upon, treated, kept, stored, disposed of, discharged, released, or
used upon, about or in the Leased Premises by Tenant, its agents, employees,
contractors or invitees, or any other person. To the best of Landlord's
knowledge and belief, without imposing on Landlord any further obligation for
investigation, there is no Hazardous Material within the Leased Premises.
12. CONDITION OF LEASED PREMISES. Tenant acknowledges that no promises,
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representations, statements or warranties have been made by or on behalf of
Landlord to Tenant respecting the condition of the Leased Premises, the manner
of operating the Shopping Center or the making of repairs to the Leased
Premises. The taking of possession of the Leased Premises by Tenant shall
constitute an acknowledgment by Tenant that the Leased Premises were taken "as
is," in good and satisfactory condition and free of any latent defects. Tenant
shall, upon the termination of this Lease, by lapse of time or otherwise, remove
all of Tenant's property therefrom as permitted by this Lease, and shall
surrender the Leased Premises to Landlord in as good condition as when Tenant
took possession, normal wear excepted.
13. COMMON AREAS. All portions of the Shopping Center, except the Leased
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Premises and other areas from time to time designated by Landlord for the common
use by Tenant, other tenants of space in the Shopping Center and their invitees,
shall be designated as Common Areas for purposes of this Lease. Such Common
Areas shall include, without limitation, parking areas, driveways, walkways,
lobby areas, halls, stairs and restrooms located outside of rentable areas. For
so long as Tenant rightfully occupies the Leased Premises, Tenant is hereby
granted the non-exclusive right to use, in common with other tenants and users
of rentable space within the Shopping Center, so much of the Common Areas as may
be necessary for the convenient use and enjoyment of the Leased Premises,
provided that the common Areas shall at all times be used only for their
intended purposes as determined by Landlord.
14. TENANT'S PERSONAL PROPERTY. All personal property in the Leased
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Premises shall be placed therein at the risk of Tenant only. Landlord shall not
be liable for any loss or damage to any property of Tenant or its agents,
employees or invitees caused by theft, vandalism, steam, electricity, sewage,
gas or odors, or from water, rain or snow which may leak into, issue or flow
into the Leased Premises from any part of the Shopping Center, or from any other
place or quarter, or for any damage done to Tenant's property in moving same to
or from the Shopping Center or the Leased Premises, unless such loss or damage
is caused by the gross
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negligence of Landlord. Tenant shall give Landlord prompt written notice of any
damage to or defects in the Leased Premises.
15. LANDLORD'S RESERVED RIGHTS. Without notice to Tenant, without
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liability to Tenant for damage or injury to property, person or business, and
without giving rise to a claim for eviction or constructive eviction of Tenant,
disturbance of Tenant's use or possession or setoff or abatement of rent,
Landlord shall have the right to:
a. Change the name or street address of the shopping Center.
b. Install and maintain signs on the exterior of the Shopping
Center.
c. At reasonable times, to decorate, and to make, at its own
expense, repairs, alterations, additions and improvements, structural or
otherwise, in or to the Leased Premises, the Shopping Center or part thereof,
and any adjacent building, land, street or alley, and during such operations to
take into and through the Leased Premises or any part of the Shopping Center all
required materials, and to temporarily close or suspend operation of entrances,
doors, corridors, elevators or other facilities to do so.
d. To enter the Leased Premises at all reasonable times during usual
business hours for the purposes of (a) inspecting same, and (b) making such
repairs or reconstruction required or permitted by Landlord, and (c) performing
any work therein that may be necessary by reason of Tenant's default under the
terms of this Lease, without prior written notice thereof to Tenant. Nothing
herein shall imply any duty upon the part of Landlord to do any such work which,
under the provisions of this Lease, Tenant may be required to perform, and the
performance thereof by Landlord shall not constitute a waiver of Tenant's
Default in failing to perform the same. In the event Landlord makes any repairs
or maintenance which Tenant has failed to do, the cost thereof shall be paid to
Landlord with the next installment of rental hereunder.
e. Show the Leased Premises to prospective tenants at reasonable
times during the last six (6) months of the term of this Lease.
f. Take any and all reasonable measures, including inspections or
the making of repairs, alterations, and additions and improvements to the Leased
Premises or to the Shopping Center which Landlord deems necessary or desirable
for the safety, protection, operation or preservation of the Leased Premises or
the Shopping Center.
g. Approve all sources furnishing signs, painting and/or lettering
to the Leased Premises, and approve all signs on or about the Leased Premises
and the Shopping Center prior to installation thereof, which signs must, without
limitation, conform with such sign criteria as shall from time to time be
established for the Shopping Center.
-11-
16. INSURANCE.
---------
16.1. Landlord's Insurance. Landlord shall, during the lease
--------------------
term, provide and keep in force or cause to be provided or kept in force:
16.1.1. Comprehensive general liability insurance with respect
to Landlord's operation of the Shopping Center covering bodily injury, death and
damage to property of others; and
16.1.2. Fire and extended coverage insurance (with coverage at
Landlord's option by endorsement or otherwise, for all risks, vandalism and
malicious mischief, sprinkler damage, boilers and rental loss) with respect to
the Shopping Center (excluding those portions of the Leased Premises required to
be insured by Tenant pursuant to paragraph 16.2 below).
Insurance effected by Landlord shall be in amounts which Landlord shall from
time to time determine reasonable and sufficient, shall be subject to such
reasonable deductibles and exclusions as Landlord may deem appropriate and shall
otherwise be on such terms and conditions as Landlord shall from time to time
determine reasonable and sufficient. At the time of the execution of this lease
Landlord has in effect $1,000,000 of comprehensive general liability coverage,
which shall be considered sufficient unless otherwise required by Landlord's
lenders. Insurance obtained by Landlord, need not name Tenant as an insured
party and may, at Landlord's option, name any mortgagee or holder of a deed of
trust as an insured party as its interest may appear. Insurance obtained by
Landlord shall contain a waiver of rights of subrogation as among Tenant,
Landlord and the holder of any mortgage or deed of trust so long as the
Landlord's insurance carrier consents to such waiver. Any insurance provided
for in paragraph 16.1 may be maintained by means of a policy or policies of
blanket insurance, covering additional items or locations or insureds.
16.2. Tenant's Insurance. Tenant covenants and agrees to obtain
------------------
on, and to keep in full force and effect during the Lease Term:
16.2.1. Comprehensive general liability insurance with respect
to the business carried on, in or from the Leased Premises and the use and
occupancy thereof, covering bodily injury, death and damage to property of
others; and
16.2.2. Fire and extended coverage insurance (including
sprinkler damage, vandalism and malicious mischief), with respect to those
portions of the Leased Premises which Tenant is required to maintain and repair
pursuant to paragraph 10.3, which include all leasehold improvements in the
Leased Premises, whether installed by Landlord or Tenant (including, without
limitation, the entire storefront, all ceilings, interior walls, floor coverings
and glass, and the portion of the heating, ventilating and cooling equipment in,
and for the exclusive use, of, the Leased Premises) and with respect to all of
the Tenant's furnishings, fixtures and personal property in the Leased Premises.
-12-
Insurance obtained by Tenant under paragraph 16.2 shall be in amounts which
Landlord and its mortgagee shall from time to time determine as being sufficient
(and in the case of insurance under paragraph 16.2.1, shall have combined single
limits of not less than $1,000,000 in respect of any one accident or occurrence,
and in the case of insurance under paragraph 16.2.2, shall be on a full
replacement cost basis subject only to such deductibles and exclusions as
Landlord may approve). Except as otherwise approved in writing by Landlord, all
insurance obtained by Tenant shall be on forms and with insurors selected or
approved by Landlord, which approval shall not be unreasonably withheld; shall
name Landlord and the holder of any mortgage or deed of trust encumbering the
Shopping Center as additional insured parties, as their interests may appear;
shall contain a waiver of rights of subrogation as among Tenant, Landlord and
the holder of any such mortgage or deed of trust so long as the insurance
carrier consents to such waiver; and shall provide, by certificate of insurance
or otherwise, that the insurance coverage shall not be canceled or altered
except upon 30 days' prior written notice to Landlord and the holder of any such
mortgage or deed of trust. Tenant shall obtain and file with Landlord
certificates of insurance evidencing the insurance coverage required above and
shall deliver such certificates to Landlord on or before the date the term
hereunder commences and from time to time thereafter as may be reasonably
required by Landlord to establish Tenant's insurance coverage.
16.3. Cooperation in the Event of Loss. Landlord and Tenant shall
--------------------------------
cooperate with each other in the collection of any insurance proceeds which may
be payable in the event of any loss, including the execution and delivery of any
proof of loss or other actions required to effect recovery.
16.4. No Use To Invalidate Policies. Tenant shall not use or
-----------------------------
occupy the Leased Premises or any part thereof in any manner which could
invalidate any policies of insurance now or hereafter carried by Landlord,
increase the risks covered by such insurance or necessitate additional insurance
premiums or policies of insurance, even if such use may be in furtherance of
Tenant's business purposes. In the event any policies of insurance are
invalidated by acts or omissions of Tenant, Landlord shall have the right to
terminate this Lease or, at Landlord's option, to charge Tenant for extra
insurance premiums required on account of the increased risk caused by Tenant's
use and occupancy of the Leased Premises.
17. INDEMNITY.
---------
17.1. General Indemnity. Tenant shall indemnify, hold harmless
-----------------
and defend Landlord, and Landlord's agents, from and against, any and all costs,
expenses, liabilities, losses, damages, suits, actions, fines, penalties,
demands or claims of any kind, including attorneys' fees, asserted by or on
behalf of any person, entity or governmental authority arising out of or in any
way connected with either (i) a failure by Tenant to perform any of the
agreements, terms or conditions of this Lease required to be performed by
Tenant, (ii) a failure by Tenant to comply with any applicable laws, orders or
regulations of governmental authorities, or (iii) any accident, death, or
personal injury, or damage to, or loss or theft of property which shall occur on
or about
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the Leased Premises. This indemnity does not apply to any losses caused by the
negligence of Landlord.
17.2. Environmental Indemnity. Tenant, its successors, assigns
-----------------------
and guarantors, shall indemnify, defend, reimburse and hold harmless Landlord
from and against any and all "Environmental Damages" arising from the presence
or use of "Hazardous Materials" caused, permitted or suffered by Tenant's use or
occupancy of the Leased Premises, or arising in any manner whatsoever out of the
violation by Tenant of any "Environmental Requirements" pertaining to the Leased
Premises and the activities thereon, or the breach of any warranty or covenant
or the inaccuracy of any representation of Tenant contained in this Lease.
a. "Hazardous Material" means any substance:
i. The presence of which requires investigation or remediation
under any federal, state or local statute, regulation, ordinance,
order, action, policy or common law; or
ii. Which is or becomes defined as "hazardous waste," "hazardous
substance," pollutant or contaminant under any federal, state or local
statute, regulation, rule or ordinance or amendments thereto
including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act ("CERCLA") (42 U.S.C. (S)(S)
9601 et seq.) and/or the Resource Conservation and Recovery Act (42
------
U.S.C. (S)(S) 6901 et seq.); or
------
iii. Which is toxic, explosive, corrosive, flammable,
infectious, radioactive, carcinogenic, mutagenic, or otherwise
hazardous and is or becomes regulated by any governmental authority or
instrumentality of the United States, the State of Colorado or the
County of Arapahoe; or
iv. The presence of which in, on or about the Leased Premises
causes or threatens to cause a nuisance upon the Leased Premises or to
adjacent properties or poses or threatens to pose a hazard to health
or safety of persons on or about the Leased Premises; or
v. The presence of which on adjacent properties could constitute
a trespass by Tenant; or
vi. Without limitation which contains gasoline, diesel fuel, or
other petroleum hydrocarbons.
b. "Environmental Requirements" means all applicable present and
future statutes, regulations, rules, ordinances, codes, licenses, permits,
orders, approvals and similar items, of all governmental authorities or
instrumentalities of the United States, Colorado, the
-14-
County of Arapahoe and all applicable judicial, administrative and regulatory
decrees, judgments or orders relating to the protection of human health or the
environment.
c. "Environmental Damages" means all claims, judgments, damages,
losses, penalties, fines, liabilities, encumbrances, liens, costs and expenses
of whatever kind or nature, contingent or otherwise, matured or unmatured,
foreseeable or unforeseeable, including without limitation reasonable attorneys'
and consultants' fees, any of which are incurred at any time as a result of
Tenant's use or occupancy of the Leased Premises or violation by Tenant of any
Environmental Requirement in, on or about the Leased Premises or any portion
thereof.
d. The obligations of Tenant, its successors, assigns and
guarantors, in this paragraph shall survive the expiration or termination of
this Lease.
e. If either Tenant or Landlord shall become aware of or receive
notice or other communication concerning any actual, alleged, suspected or
threatened violation of Environmental Requirements or liability for
Environmental Damages in connection with the Leased Premises or past or present
activities of any person thereon, then, within ten (10) days of becoming aware
of or the receipt of notice or other communication, the party receiving such
notice shall deliver to the other party a written description of same, together
with copies of any supporting documents.
f. This indemnification contained in paragraph 17.2 shall not apply
to Environmental Damages arising from the actions of Landlord.
18. MECHANIC'S LIENS. Tenant agrees to keep all of the Leased Premises
----------------
and every part thereof and all buildings and other improvements within the
Shopping Center free and clear of and from any and all mechanic's, materialmen's
and other liens for work or labor done, services performed, materials,
appliances, transportation or power contributed, used or furnished to be used in
or about the Leased Premises to or on the order of Tenant, and at all times
Tenant shall promptly and fully pay and discharge any and all claims upon which
any such lien may or could be based; and Tenant shall save and hold Landlord and
all of the Leased Premises and all buildings and improvements within the
Shopping center free and harmless of and from any and all such liens and claims
of liens and suits or other proceedings arising out of materials or services
furnished to or on the order of Tenant. Tenant agrees to give Landlord written
notice not less than ten (10) days in advance of the commencement of any
construction, alteration, addition, improvement, installation, or repair costing
in excess of Five Thousand and 00/100 Dollars ($5,000.00) in order that Landlord
may post appropriate notices of Landlord's nonresponsibility and, further, to
secure, at Tenant's sole cost and expense, a bond indemnifying Landlord and the
Leased Premises against all aforesaid liens, with corporate surety and in form
satisfactory to Landlord.
19. DAMAGE BY FIRE OR OTHER CASUALTY. In the event of such damage, if
--------------------------------
such damage can be repaired within sixty (60) days after it is determined that
there are
-15-
substantially sufficient insurance proceeds to repair the damage, then Landlord
shall so repair the Leased Premises. If such damage cannot be repaired within
that time, or if there are insufficient insurance proceeds available to make
such repairs, then Landlord shall elect whether to repair the Leased Premises or
cancel this lease, and shall notify Tenant in writing of its election within
sixty (60) days after the allowance of the claim for insurance proceeds. In the
event Landlord elects to repair the Leased Premises, the work or repair shall
begin promptly, and shall be carried on without unnecessary delay. In the event
Landlord or Tenant elects not to repair the Leased Premises, the lease shall be
deemed canceled as of the date Landlord gives notice to Tenant as provided
above. Such damage shall not extend the lease term. Tenant shall not be entitled
to any damages by reason of any inconvenience or loss sustained by Tenant as a
result of the Leased Premises or any portion thereof being untenantable while
the Leased Premises is being repaired; unless such damages are caused by
Landlord's gross negligence, or in the event Landlord elects to cancel the lease
as provided above.
20. DEFAULT OR BREACH. Each of the following events shall constitute a
-----------------
default or a breach of this Lease by Tenant ("Default"):
a. If Tenant fails to pay Landlord any Base Rent when due hereunder;
b. If Tenant fails to pay Landlord any Additional Rent within the
period specified in paragraph 4.3.1, and within five (5) days after written
notice;
c. If Tenant vacates or abandons the Leased Premises;
d. If Tenant files a petition in bankruptcy or insolvency or for
reorganization under any bankruptcy act, voluntarily takes advantage of any such
act by answer or otherwise, makes an assignment for the benefit of creditors or
becomes insolvent or unable to meet its obligations as they become due;
e. If involuntary proceedings under any bankruptcy or insolvency act
shall be instituted against Tenant, or if a receiver or trustee shall be
appointed for all or substantially all of the property of Tenant, and such
proceedings shall not be dismissed or the receivership or trusteeship vacated
within thirty (30) days after the institution or appointment; or
f. If Tenant fails to perform or comply with any other term or
condition of this Lease and such nonperformance shall continue for a period of
three (3) days after notice thereof from Landlord to Tenant; provided, however,
if the nonperformance cannot be cured by the payment of money, then Tenant shall
have thirty (30) days after notice to correct the nonperformance.
Notwithstanding any provision of this Lease to the contrary, in the event
the bank to be operated on the Leased Premises is taken over by the Comptroller
of the currency or other bank supervisory authority, Landlord may terminate the
Lease only with the concurrence of the
-16-
Comptroller or other bank supervisory authority (provided that the Comptroller
or other supervisory authority continues to pay all rent and other charges as
and when due and complies with all other terms, conditions, covenants, and
agreements of this Lease) and any such authority shall in any event have the
election to either continue or terminate the Lease, provided that in the event
this Lease is terminated, the maximum claim of Landlord for damages or indemnity
of injury resulting from the rejection or abandonment of the unexpired Lease
shall in no event be in an amount exceeding the rent reserved by the Lease,
without acceleration for the year next succeeding the date of the surrender of
the Leased Premises to Landlord, or the date of reentry of Landlord, whichever
first occurs, whether before or after the closing of the bank, plus an amount
equal to the unpaid rent accrued, without acceleration, up to such date. Lease
terminates and obligations cease if Comptroller elects not to continue in
existence. If at any time said term shall terminate as aforesaid or in any other
way, Tenant hereby agrees to surrender and deliver up the Leased Premises
peaceably to Landlord immediately upon the termination of such term, and if
Tenant shall remain in possession of the same after termination thereof, Tenant
shall be deemed guilty of a forcible detainer of the Leased Premises under the
laws of the State of Colorado.
21. EFFECT OF DEFAULT. In the event of any default or breach hereunder,
-----------------
in addition to any other right or remedy available to Landlord, either at law or
in equity, Landlord may (but need not) exercise any one or more of the following
rights:
a. Landlord may re-enter the Leased Premises in accordance with the
procedures provided by Colorado statutes without being deemed to have terminated
this Lease and remove the property and personnel of Tenant without being guilty
in any manner of trespass, and shall have the right, but not the obligation, to
store such property in a public warehouse or at a place selected by Landlord, at
the risk and expense of Tenant.
b. Landlord may terminate this Lease by giving written notice of
termination to Tenant. Without such notice, Landlord's re-entering and/or
reletting of the Leased Premises will not terminate the Lease. On termination,
Landlord may recover from Tenant all damages proximately resulting from the
breach, including the cost of recovering the Leased Premises and the value of
the balance of the Lease over the reasonable rental value of the Leased Premises
for the remainder of the lease term, which sum shall be immediately due Landlord
from Tenant.
c. Landlord may, on behalf of Tenant, relet the Leased Premises or
any part thereof for any term without being deemed to have terminated this
Lease, at such rent and on such terms as it may choose. Landlord may make
alterations and repairs to the Leased Premises. In addition to Tenant's
continuing liability to Landlord for Tenant's obligations under this Lease,
Tenant shall be liable for all expenses of the reletting (including brokerage
and legal fees), for any alterations and repairs made, and for the difference
between the rent received by Landlord under any new lease agreement and the rent
installments that are due for the same period under this Lease.
-17-
d. Landlord may make any payment or perform any act on behalf of
Tenant necessary to cure such Default by Tenant, and make all necessary payments
in connection therewith, including without limitation the payment of reasonable
attorneys' fees, costs and charges of or in connection with any legal
proceedings which may have been commenced. Tenant shall pay to Landlord, as
Additional Rent, upon demand, any amount so paid by Landlord, together with
interest thereon at the lesser of 18% per annum, or the highest rate then
allowed by law, from the date said payment was due until paid by Tenant. The
payment of such interest shall not excuse or cure any Default by Tenant under
this Lease.
e. All costs and expenses incurred by Landlord in connection with
collecting any amounts and damages owing by Tenant pursuant to the provisions of
this Lease or to enforce any provision of this Lease, including, without
limitation, reasonable attorneys' fees and Landlord's internal personnel costs,
whether or not any action is commenced by Landlord, shall be paid by Tenant to
Landlord upon demand. If Landlord, without fault, is at any time made a party
to any litigation instituted by or against Tenant, Tenant shall reimburse to
Landlord and shall indemnify and hold Landlord harmless against all costs and
expenses, including, but not limited to, attorneys' fees and Landlord's internal
personnel costs, incurred by Landlord in connection therewith.
22. There is no paragraph 22.
23. SURRENDER; HOLDING OVER. Tenant shall, upon the termination of this
-----------------------
Lease, whether by lapse of time or otherwise, peaceably and promptly surrender
the Leased Premises to Landlord. If Tenant remains in possession after the
termination of this Lease without a written lease duly executed by the parties,
Tenant shall be deemed a trespasser. If Tenant pays, and Landlord accepts, rent
for a period after termination of this Lease, Tenant shall be deemed to be
occupying the Leased Premises only as a tenant from month to month, at a Base
Rent equal to two times the Base Rent in effect immediately prior to such
termination, and subject to all of the other terms and conditions of this Lease.
24. SUBORDINATION AND ATTORNMENT. Landlord reserves the right to place
----------------------------
liens and encumbrances on the Leased Premises superior in lien and effect to
this Lease. This Lease, and all rights of Tenant hereunder shall be subject and
subordinate to any liens and encumbrances now or hereafter imposed by Landlord
upon the Leased Premises or the Shopping Center or any part thereof; provided,
however, that so long as Tenant is not in default under the terms and conditions
of this Lease, Tenant's possession of the Leased Premises shall not be
disturbed. Tenant agrees to execute, acknowledge and deliver to Landlord, upon
demand, any and all instruments required by Landlord or Landlord's lender(s) to
subordinate this Lease and all rights herein to any such lien or encumbrance.
In the event of a foreclosure of any mortgage on the Shopping Center or a deed
in lieu thereof, Tenant shall attorn to, and become the Tenant of, the purchaser
at the foreclosure sale or the grantee of such deed in lieu thereof, and shall
recognize such party as the Landlord under this Lease.
-18-
Tenant waives any right to terminate this Lease because of any such
foreclosure proceedings or deed in lieu thereof.
25. ESTOPPEL CERTIFICATES. Tenant agrees that at any time, and from time
---------------------
to time during the term of this Lease, and within five (5) business days after
demand therefor by Landlord, to execute and deliver to Landlord, or any
mortgagee (existing or proposed), trustee, beneficiary or purchaser of the
Shopping Center, a certificate in recordable form certifying that this Lease is
in full force and effect, that the Lease is unmodified, or if modified,
describing such modification, that there are no defenses or offsets thereto, or
describing any such defenses or offsets as are claimed, the dates to which all
rentals have been paid and any other matters reasonably requested by Landlord.
26. CONDEMNATION. If the whole or any part of the Leased Premises shall
------------
be taken for any public or quasi-public use under the power of eminent domain,
then the term of this Lease shall cease as to that portion of the Leased
Premises so taken, from the date of title vesting, and the rent shall be paid to
that date, with a proportionate refund by Landlord to Tenant of such rent as may
have been paid by Tenant in advance. If the portion of the Leased Premises
taken is such that it prevents the practical use of the Leased Premises for
Tenant's purposes, then Tenant shall have the right either (i) to terminate this
Lease by giving written notice of such termination to Landlord not later than 30
days after the taking, or (ii) to continue in possession of the remainder of the
Leased Premises, except that the rent shall be reduced in proportion to the
nature, value and area of the Leased Premises taken.
In the event of any taking or condemnation of the Leased Premises, in whole
or in part, the entire resulting award of damages shall be the exclusive
property of Landlord, including all damages awarded as compensation for
diminution in value to the leasehold, without any obligation to allocate any
portion of such award to Tenant for the value of any unexpired term of this
Lease, or for any other estate or interest in the Leased Premises now or
hereafter vested in Tenant; provided, however, that Tenant shall have the right
to seek an award for losses and expenses relating to any move that Tenant may be
required to make as a result of such condemnation and Tenant may retain any such
award specifically awarded to Tenant by the condemning authority.
27. There is no paragraph 27.
28. NOTICES. Any notices, demands or other communications to be given
-------
hereunder shall be given in writing and sent by (i) personal delivery, (ii)
overnight courier service, or (iii) registered or certified mail, return receipt
requested to the following addresses:
If to Landlord: c/o Sevo Xxxxxx, Inc.
0000 Xxxxx Xxxxxxxx, x0xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
-19-
If to Tenant: Equitable Bank of
Littleton, N.A.
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, President
or at such other address as either party may from time to time designate in
writing. Each such notice shall be deemed to have been given at the time it
shall be delivered, sent by overnight courier service, or if mailed, at the time
it shall be deposited in the United States mail in the manner prescribed herein.
Nothing contained herein shall be construed to preclude personal service of any
notice in the manner prescribed by law for personal service of a summons or
other legal process.
29. MERCHANTS' ASSOCIATION/PROMOTION FUND. Landlord reserves the right at
-------------------------------------
any time to alternately establish either a Merchants' Association or Promotion
Fund. Upon receipt of written notice from Landlord at any time during the term
hereof, notifying Tenant of the establishment of a Merchants' Association,
Tenant may elect to become a member of the Merchants' Association within ten
(10) days of such notice by giving written notice to Landlord. Upon the
establishment of either a Merchants' Association in which Tenant elects to
become a member or Promotion Fund, Tenant shall comply with all of its
obligations with respect thereto as set forth in subparagraphs 29.1 and 29.2 of
this Lease.
29.1. Merchants' Association. During the term of this Lease Tenant
----------------------
agrees fully to participate in and to remain a member in good standing of said
Association. Tenant agrees to pay the Merchants' Association dues in equal
monthly installments, in advance, on the first day of each month, as Tenant's
contribution towards the advertising, promotion, public relations, and
administrative expenses paid or incurred by the Association, subject, however,
to annual adjustments in such dues as may be approved by appropriate vote of the
members of the Association increasing said dues to the extent required to meet
increases in the costs of advertising, promotion, public relations, and
administrative expenses. Said dues shall not exceed $.20 per Net Rentable Area
per year. Tenant agrees to advertise in any and all special Merchants'
Association newspaper sections, tabloids, or other advertisements and agrees to
cooperate and participate in all special sales and promotions sponsored by the
Merchants' Association. The failure of any other tenant of the Shopping Center
to contribute to, or become or remain a member of the Merchants' Association
shall in no way release Tenant from Tenant's obligation hereunder, such
membership and participation in the Association by Tenant being a separate and
independent covenant of this Lease. Tenant agrees to abide by the bylaws of the
Merchants' Association and by any amendments thereof and any regulations of the
Merchants' Association as may hereafter be duly adopted. Tenant's failure to pay
dues to such Association shall be treated as a default hereunder and Landlord
may collect the same on behalf of said Association.
29.2. Promotion Fund. Upon receipt of written notice from Landlord
--------------
at any time during the term hereof, notifying Tenant of the establishment of a
Promotion Fund, the following provisions will apply:
-20-
29.2.1. Tenant shall pay to the Landlord, as Additional Rent, in each
Rental Year (or in any other period determined by the Landlord, from time to
time) for the purpose of the creation and maintenance of a common fund (the
"Promotion Fund") for the promotion or benefit of the Shopping Center, an annual
payment in an amount established by Landlord in its reasonable discretion, not
to exceed $.20 pet Net Rentable Area per year.
29.2.2. The Promotion Fund payment for each Rental Year (or other
annual period), including the Rental Year in which the Commencement Date occurs,
shall be increased at the commencement of each subsequent Rental Year (or other
annual period) to equal the amount obtained by multiplying the Promotion Fund
payment specified herein by a fraction that has as its numerator the Consumer
Price Index described in paragraph 4.1.1 hereof (CPI-U) for the first month of
the current Rental Year (or other annual period), and as its denominator the
CPI-U for the month (or month closest thereto) during which the Promotion Fund
is established; provided, however, that the payment shall never exceed $.20 per
Net Rentable Area per year.
29.2.3. The Promotion Fund payment shall be made monthly, in advance,
as Additional Rent on the first day of each calendar month during each Rental
Year of the term (or during any such other annual period during the term).
29.2.4. The Promotion Fund payment shall be used by the Landlord for
the promotion or benefit of the Shopping Center in such manner as the Landlord
from time to time decides. However, the Landlord may pay all or any part of the
Promotion Fund to any Merchants' Association which has been or may be formed in
the Shopping Center, and any such payment is a good and sufficient discharge of
the Landlord's obligation in respect of the amount so paid. It is understood and
agreed that any and all amounts paid to the Landlord under this paragraph 29 are
not deemed income of the Landlord but shall be expended by it as provided in
this paragraph.
30. CHANGES TO SHOPPING CENTER. Landlord reserves the right at any time
--------------------------
to change the size, area or dimensions of the shopping Center, change the size
or location of points of access or parking areas, and grant such easements to
others as Landlord may deem desirable in connection with the use or development
of the Shopping Center or any adjacent or neighboring properties. Tenant
acknowledges that any such change might have the effect of altering Tenant's Pro
Rata Share. Tenant shall not, in such event, claim or be allowed any damages or
right to terminate this Lease for injury or inconvenience occasioned thereby.
Landlord shall notify Tenant of any change in its Pro Rata Share occasioned by
such change to the Shopping Center.
31. CONTINUOUS OPERATION. Tenant covenants to operate the Leased Premises
--------------------
continuously during the entire term of this Lease with due diligence and
efficiency so as to produce a maximum volume of gross sales, subject to causes
beyond Tenant's control. For purposes of this Lease, "continuously" shall mean
being open for business on all days and during the hours that are customary
considering the nature of Tenant's business and the location of the Shopping
Center or as otherwise determined by Landlord in its discretion.
-21-
32. BANKRUPTCY. Landlord and Tenant understand that notwithstanding
----------
certain provisions to the contrary contained herein, a trustee or debtor in
possession under the Bankruptcy Code of the United States (the "Bankruptcy
Code") may have certain rights to assume or assign this Lease. Landlord and
Tenant further understand that in any event Landlord is entitled under the
Bankruptcy Code to adequate assurances of future performance of the terms,
covenants and conditions of this Lease. For purposes of any such assumption or
assignment, the parties hereto agree that the term "Adequate Assurance" shall
include at least the following:
a. In order to assure Landlord that the proposed assignee will have
the resources with which to pay all rent due hereunder, any proposed assignee
must have demonstrated to Landlord's satisfaction a net worth (as defined in
accordance with generally accepted accounting principles consistently applied)
at least as great as the net worth of Tenant on the date this Lease became
effective. The financial condition and resources of Tenant were a material
inducement to Landlord in entering into this Lease.
b. Any proposed assignee must have been engaged in the Permitted Use
at least five (5) years prior to any such proposed assignment.
c. In entering into this Lease, Landlord considered extensively the
Permitted Use and determined that the Permitted Use would add substantially to
Landlord's tenant balance and that if it were not for Tenant's agreement to
limit its operations to the Permitted Use, Landlord would not have entered into
this Lease. Landlord's overall operation will be substantially impaired if the
trustee in bankruptcy or any assignee of this Lease makes any use of the Leased
Premises other than the Permitted Use.
d. Any proposed assignee of this Lease must assume and agree to be
personally bound by the terms, provisions and covenants of this Lease.
33. DEFAULT BY LANDLORD. In the event of any default by Landlord
-------------------
("Landlord Default"), Tenant's exclusive remedy shall be to commence an action
for damages. Prior to instituting any such action, Tenant shall advise
Landlord, and any mortgagee whose name and address has been given to Tenant, by
written notice specifying such Landlord Default with particularity and Landlord
shall thereupon have thirty (30) days in which to cure any such Landlord
Default; provided, however, that if the nature of the Landlord Default is such
that more than thirty (30) days are required for its cure, then Landlord shall
not be in default if Landlord commences performance within said thirty (30) days
and thereafter diligently prosecutes the same to completion. Unless and until
Landlord fails to so cure any Landlord Default after such notice, Tenant shall
not have any remedy or cause of action by reason thereof. All obligations of
Landlord hereunder will be construed as covenants, not conditions.
34. SIGNS, FIXTURES, EXTERIOR IMPROVEMENTS. Tenant shall not make or
--------------------------------------
cause to be made any alterations, additions, or improvements to the Shopping
Center or install or cause to be installed any exterior signs, floor covering,
exterior lighting, plumbing fixtures,
-22-
shades or awnings, window coverings, radio or television antennae, loud
speakers, sound amplifiers or similar devices, or make any changes to the
storefront or exterior of the Shopping Center. All signs installed and
maintained by Tenant shall conform in all respects with sign criteria
established for the Shopping Center.
35. MISCELLANEOUS.
-------------
a. Binding on Assigns. All terms, conditions and agreements of this
------------------
Lease shall be binding upon, apply and inure to the benefit of the parties
hereto and their respective heirs, representatives, successors, assigns and
authorized agents.
b. Amendment in Writing. This Lease, together with any and all
--------------------
exhibits and addenda, attached or unattached hereto, all of which exhibits and
addenda are incorporated herein by reference, contains the entire agreement
between the parties and may be amended only by subsequent written agreement,
executed by both parties.
c. Waiver. The failure of Landlord to insist upon strict
------
performance of any of the terms, conditions and agreements of this Lease, or the
acceptance of rent from Tenant during a time Tenant is in Default of any
obligation hereunder, shall not be deemed a waiver of any of Landlord's rights
or remedies hereunder, and shall not be deemed a waiver of any subsequent breach
or Default of any of such terms, conditions and agreements. The doing of
anything by Landlord which Landlord is not obligated to do hereunder shall not
impose any further obligation on Landlord nor otherwise amend any provisions of
this Lease.
d. No Surrender. No surrender of the Leased Premises by Tenant
------------
shall be effected by Landlord's acceptance of the keys to the Leased Premises or
of rent due hereunder, or by any other means whatsoever, without Landlord's
written acknowledgment that such acceptance constitutes a surrender.
e. Quiet Enjoyment. Upon due performance of all of the covenants
---------------
and agreements to be performed by Tenant hereunder, Landlord covenants that
Tenant shall and may at all times peaceably and quietly have, hold and enjoy the
Leased Premises during the term of this Lease.
f. Attorney's Fees. In the event that legal proceedings are brought
---------------
or commenced to enforce the terms of this Lease, the prevailing party shall be
entitled to recover from the other party its reasonable attorneys' fees and
costs, whether or not such proceedings are pursued to judgment or other final
disposition.
g. No Recording. This Lease shall not be recorded by either party
------------
hereto and any such recording shall be void. At Landlord's option, a memorandum
of such lease identifying the parties thereto, the Leased Premises, and the
lease term may be recorded.
-23-
h. Authorization. Tenant hereby warrants and represents to Landlord
-------------
that the execution and delivery of this Lease by the parties signing below on
behalf of Tenant, as well as Tenant's performance hereunder, has been duly
authorized.
i. Captions. The captions of the various paragraphs in this Lease
--------
are for convenience only and do not define or limit the contents of such
paragraphs.
j. Brokers. Tenant hereby warrants that no real estate broker has
-------
represented or will represent it in this transaction and that no finder's fees
have been earned by a third party. Tenant acknowledges that Sevo Associates,
Inc. and its agents, are agents of Landlord and are not representing Tenant in
this transaction.
k. Applicable Law. This Lease shall be governed by and construed in
--------------
accordance with the laws of the State of Colorado.
l. Time of Essence. Time is of the essence in the performance of
---------------
each and every obligation by Tenant hereunder.
m. Name of Shopping Center. Landlord reserves the right to change
-----------------------
the name of the Shopping Center from time to time and any new name will be
determined by Landlord in its sole discretion. Tenant shall not acquire any
rights in and to the name "Southbridge Plaza Shopping Center" or any other name
in which Landlord may operate the Shopping center.
n. Relationship of Parties. Nothing herein contained shall be
-----------------------
deemed and construed by the parties hereto, nor by any third party, as creating
the relationship of principal and agent or of partnership or of joint venture
between the parties hereto, it being understood and agreed that neither the
method of computation of rent, nor any other provision contained herein, nor any
acts of the parties hereto, shall be deemed to create any relationship between
the parties hereto other than the relationship of Landlord and Tenant.
o. Landlord Exculpation. Landlord, its partners, employees and
--------------------
agents, shall have absolutely no personal liability with respect to any
provision of this Lease, or any obligation or liability arising in connection
herewith. Tenant shall look solely to the equity in the Leased Premises or the
Shopping Center, for the satisfaction of any remedies of Tenant in the event of
a breach by the Landlord of any of its obligations. Such exculpation of
liability shall be absolute without any exception whatsoever.
p. Liquor Licenses. Tenant, its principals, employees and agents,
---------------
agree not to object to or oppose in any manner applications for issuance of
liquor licenses to any establishment located within the Shopping Center.
Until this Lease is executed on behalf of all parties hereto, it shall be
construed as an offer by Tenant to enter into this Lease.
-24-
IN WITNESS WHEREOF, the parties hereto have executed this Lease effective
as of the day and year first above written.
LANDLORD:
SOUTHBRIDGE PLAZA L.P., a Colorado limited
partnership
By: SBG Joint Venture, a Colorado general
partnership, General Partner
By: Sevo Xxxxxx, Inc., a Colorado
corporation (f/k/a The Sevo
Corporation of Colorado),
General Partner
BY:
----------------------------------
Xxxx X. Xxxx, President
TENANT:
EQUITABLE BANK OF LITTLETON, N.A.
By: /s/ Xxxxxxx X. Xxxxxxx, as President
---------------------------------------
Xxxxxxx X. Xxxxxxx, President
-25-
EXHIBIT "A"
TO
SOUTHBRIDGE PLAZA SHOPPING CENTER LEASE
[Attach drawing of Shopping Center with Leased Premises outlined]
[Drawing omitted]
-26-
EXHIBIT "B"
TO
SOUTHBRIDGE PLAZA SHOPPING CENTER LEASE
[There is no Exhibit B]
-27-
EXHIBIT "C"
TO
SOUTHBRIDGE PLAZA SHOPPING CENTER LEASE
SIGN CRITERIA
A. GENERAL REQUIREMENTS:
1. Each Tenant shall submit or cause to be submitted to Landlord for
approval before fabrication at least two (2) copies of detailed
drawings indicating the location, size, layout, design and color of the
proposed signs, including all lettering and/or graphics.
2. All permits for signs and their installation shall be obtained by
Tenant or his representative.
3. Tenant shall be responsible for the fulfillment of all requirements and
specifications.
4. All signs shall be constructed and installed, including electrical
hookup, at Tenant's expense.
5. All signs shall be reviewed for conformance with this criteria and
overall design quality. Approval or disapproval of sign submittals
based on esthetics of design shall remain the right of Landlord at its
sole discretion.
6. Signs shall be permitted only within the sign fascia areas as
designated by the Landlord. Tenant will be permitted to install one
illuminated sign on the sign fascia.
7. Tenant shall be responsible for the installation and maintenance of all
signs.
8. All signs are to be installed under the direction of Landlord or its
representatives.
9. Tenant's sign contractor shall repair any damage caused by said
contractor's work, or by its agents or employees.
10. Tenant shall be liable for the operations of Tenant's sign contractor.
11. Electrical service to all signs shall be on Tenant meters.
-28-
12. Painted lettering shall not be permitted.
B. GENERAL SPECIFICATIONS:
1. All signs shall be composed of individual pan-channel letters and
fabricated per specifications provided by attachment D1. Cabinet or
letter body will be painted to match the building facia with Xxxx-
Xxxxxxx #5633M or match. All signs and letter will use black jewelite
trim where same is necessary. Existing raceway to be removed and angled
endcaps are to be installed where cut.
2. No audible, flashing or animated signs will permitted.
3. No projections above or below the sign limits will be permitted. Signs
must be within sign band. No sign or any portion thereof may project
above the fascia on which it is mounted.
4. Lettering may be script or block.
5. Letter size is to be not less than 18 inches in height and not more
than 36" in height. Landlord reserves the right to designate the letter
size .
6. Stacked letters will be no greater than 42" in overall height, with a
12" minimum letter height. Landlord reserves the right to designate
overall size and letter size of all stacked letter configurations.
7. All signs and their installation shall comply with all local building
and electrical codes.
8. No exposed raceways, crossovers or conduit will be permitted.
9. All conductors, transformers and other equipment shall be concealed.
10. All signs must meet UL requirements and bear UL label. All sign
contractors must be licensed Class A Electrical Sign Contractors.
11. Wording of signs shall not include the product sold except as part of
Tenant's trade name or insignia.
12. The width of Tenant's fascia sign shall not exceed two-thirds (2/3) of
the linear frontage of the store or shop. Landlord will designate exact
location of sign, in relation to Tenant's storefront width, prior to
any installation. Signs shall be centered in respect to the Tenant's
store space or in the event the roof lines of the
-29-
adjacent buildings do not permit the sign to be centered as such, shall
be centered in respect to the Tenant's entry door into the shop.
13. No signs perpendicular to the face of the building or storefront will
be permitted, except under the soffit, intended for pedestrian traffic.
14. No signmaker's label or other identification shall be permitted on the
exposed surface of the sign, except for those required by local
ordinance which then shall be placed in an inconspicuous location.
15. All penetrations of the building structure required for sign
installation shall be neatly sealed in a watertight condition and
properly maintained.
16. All signs, bolts, fastenings, and clips shall be hotdipped galvanized
iron, stainless steel, aluminum, brass or bronze. No black iron
materials of any type shall be permitted.
17. No exposed neon lighting shall be used on signs, symbols, or decorative
elements.
18. Pylon or pole signs shall not be permitted. Except as already agreed
to in Sign Addendum, dated 03/31/1991.
C. CONSTRUCTION REQUIREMENTS:
1. Each Tenant shall be permitted to place upon each entrance of its
premises not more than one-hundred forty-four (144) square inches of
gold leaf or decal application lettering not to exceed two (2) inches
in height, indicating hours of business, emergency telephone numbers,
etc.
2. Except as provided herein, no advertising placates, banners, pennants,
names, insignia, trademarks or other descriptive material shall be
affixed or maintained upon the glass panes and supports of the show
windows and doors upon the exterior wall of buildings, or within
twenty-four (24) inches of the show windows.
3. Each Tenant who has a non-customer door for receiving merchandise may
have uniformly applied on said door in location, as directed by
Landlord, in two (2) inch high block letters, the Tenant's name and
address. Where more than one (1) Tenant uses the same door, each name
and address shall be applied. Color and letters will be as selected by
Landlord.
4. Tenant may install on the storefront, if required by the U.S. Post
Office, the numbers only for the street address in exact location
stipulated by size, type and color of number shall be as stipulated by
Landlord. These numbers shall be three
-30-
inches (3"0) high with bottom 6'.0" above finish floor and centered on
glass entrance door. Numbers shall match lettering in Item C-1.
5. Tenants should note that approval action by Landlord will generally
take one week. No installation will be permitted without proper
approvals.
6. This sign criteria may be changed to reflect the code of governing
bodies involved.
-31-
EXHIBIT "D"
TO
SOUTHBRIDGE PLAZA SHOPPING CENTER LEASE
ESTOPPEL CERTIFICATE
Dated: 4/1 , 19 91
-------------- ---
Gentlemen:
The undersigned, as Lessee, hereby confirms and represents to you the following:
1. That it has accepted possession of the premises demised pursuant to the
terms of the aforesaid lease.
2. That the building(s), improvements and space required to be furnished
according to the aforesaid lease have been satisfactorily completed in all
respects.
3. That the Lessor has fulfilled all of its duties of an inducement nature,
and is not in default in any manner in the performance of any of the terms,
covenants, or provisions of said lease.
4. That the aforesaid lease has not been modified, altered, or amended except
by agreement dated 4/2/91 .
--------------------------------------------
5. That there are no offsets or credits against rentals, nor have rentals been
prepaid, except as provided by the lease terms.
6. That said rentals commence to accrue on the 1st day of October , 19 01.
----- ------------ ---
The primary lease term expires on September 30 , 19 96 . The fixed
----------------- ----
monthly rental is $ 5,097 .
-----------
7. That we have no notice of assignment, hypothecation, or pledge of rents or
the lease, except to your company.
The above statements are made upon the understanding that your company will rely
on them in connection with the making of a loan collaterally secured by an
assignment of our lease, and that these statements are true to the best of our
knowledge and belief.
Sincerely,
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
as President of
Equitable Bank of Littleton
-32-
SIGN ADDENDUM
This Addendum modifies and shall be attached to, and considered part of,
that Lease Agreement entered into by and between Southbridge Plaza L.P., as
Landlord, and Equitable Bank of Littleton, N.A., as Tenant, dated the 31st day
------
of March , 1991.
-----------
It is understood and agreed between the parties that Equitable Bank of
Littleton, N.A., on the date this lease is being executed, has four (4) signs on
the premises and Tenant is entitled to retain all four (4) signs during the
Lease Term subject to the limitations contained herein. One (1) sign is located
on the pylon sign and consists of approximately 26 square feet. The other three
(3) signs are located on the building facia and are shown on the attachment to
this Addendum as locations A, B, and C.
The sign designated at location A on the attached addendum, consists of a logo
and a sign for Equitable Bank. The logo is 30" x 30" and the sign is 16' x 20".
It is agreed that upon request of Landlord, Tenant at Tenant's expense will
relocate that sign and logo further to the West of the building in close
proximity to Tenant's door.
The sign designated at location B consists of Tenant's logo, which is 30" x 30"
and the Equitable Bank sign, which is 16' x 20".
The sign designated at location C consists of an Equitable Bank sign, which is
16' x 20". Landlord and Tenant hereby agree that all of the aforementioned
signs including the pylon sign will not be increased in size in any manner
whatsoever during the Lease Term.
Furthermore, the tenant occupying the space contiguous to Equitable Bank will
from this day forward be entitled to two (2) signs on the building facia. At
the date this lease is executed, this tenant is Century 21 and Century 21
presently has two (2) signs designated as Location D on the addendum attached
hereto. In addition to that sign, Century 21 is being allowed one (1) more
sign, which shall be placed at Location A after Equitable Bank has relocated the
sign presently situated in Location A.
It is agreed and understood between the parties that all the terms and
conditions of this addendum are subject to the approval of the appropriate
municipal authorities and in the event any such approval is not obtained, Tenant
shall immediately conform said signs to any sign code.
Landlord has consented to the flagpole and the use of the flagpole by Tenant
through the term of the lease. However, Landlord's consent is subject to all
local laws and ordinances which may be adopted by the appropriate municipalities
from time to time.
LANDLORD:
SOUTHBRIDGE PLAZA L.P.
----------------------------------- -----------------------------
Date
TENANT:
/s/ Xxxxxxx X. Xxxxxxx as President 3/31/91
----------------------------------- -----------------------------
Date
