EXHIBIT 10.4
L E A S E
This Lease ("Lease") is made on this 21st day of January, 1998, by and
between Attache Publishing Services, Inc., a Colorado Corporation ("Landlord"),
and Renaissance Entertainment, Corp. ("Tenant").
1. DEFINITIONS.
A. "LEASED PREMISES" shall mean Suite 102, or if necessary to show
the area leased, the area shown as such on EXHIBIT A attached hereto and made a
part hereof, consisting of 2789 square feet.
B. "BUILDING" shall mean the office building located at
000 XXXXXXX XXXXXX
--------------------------
XXXXXXXXXX, XX 00000
--------------------------
C. "LEASE COMMENCEMENT DATE" shall mean the earlier of the date of
completion of required tenant finish or April 15, 1998, or as may be adjusted
pursuant to Paragraph 3(B).
D. "LEASE TERM" shall mean the period beginning on the Lease
Commencement Date and ending five years later.
E. "BASE RENT" shall mean three thousand and six hundred and two
dollars and forty six cents ($3,602.46) per month for the rentable area of
square feet, as defined by the Building Owners and Managers Association
International, as amended, for the first twelve (12) months of the Lease
which shall increase to the Consumers Price Index, All Urban consumers (CPI-U
1982-84-100) over the previous twelve (12) month period per year for each
subsequent year of the Lease Term.
F. "BUILDING OPERATING COSTS" shall mean all expenses, costs and
disbursements which Landlord pays to maintain, repair, replace or operate the
Building, including, but not limited to, the following:
(1) real estate taxes and assessments;
(2) personal property taxes on personal property used in
the common areas of the Building;
(3) Landlord's insurance;
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(4) utilities for common areas or which are not separately
metered to tenants;
(5) redecorating of the Building's common areas (including
painting, carpeting, art work and furnishings);
(6) janitorial services;
(7) snow removal;
(8) landscaping maintenance and replacement;
(9) parking lot maintenance and repairs (including re-surfacing
and re-striping);
(10) trash removal;
(11) elevator and heating and air-conditioning maintenance,
repair and replacement;
(12) roof repairs;
(13) property management costs (including wages, payroll
taxes and employee benefits);
(14) Building Services (including cleaning and building
supplies, provision of security services, if any, and tools and
equipment for the daily operation of the Building);
(15) Repair of parking lot signage or car stops.
Provided, however, that except for the capital improvements
listed above, Building Operating Costs shall not include capital improvements,
unless they are required due to a change in the law or are reasonably expected
to cause a reduction in the cost of operating the Building and, in such event,
such expenses shall be amortized in accordance with generally recognized
accounting principles. Excluded from Building Operating Costs shall be any
expenses incurred by landlord for compliance with Americans with Disabilities
Act requirements.
Building Operating Costs shall include the Tenant's Pro Rata
Share of costs of roof renovation or replacement, and replacement of parking lot
signage or car stops based upon the estimated life of the renovation or
replacement.
G. "TENANT'S PRO RATA SHARE" shall mean twenty seven Percent (27%)
measured in accordance with the standards set by the Building Owners and
Managers Association International, as amended.
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H. "PERMITTED PURPOSE" shall mean use of the Leased Premises for the
following purposes: GENERAL OFFICE USE.
I. "AUTHORIZED NUMBER OF PARKING SPACES" shall mean any designated
parking spaces in the parking lot.
2. RENT.
In consideration of the rents, covenants and agreements contained in
this Lease, Landlord leases to Tenant, and Tenant hires and takes from Landlord,
the Leased Premises with rent payable as follows:
A. Tenant covenants and agrees to pay to Landlord the Base Rent and
Tenant's Pro Rata Share of Building Operating Costs (collectively referred to
hereinafter as "Rent"), without deduction or set-off (unless authorized by this
Lease), due and payable in advance on the first day of each month. Rent not
paid by the third business day of the month shall be subject to a late charge of
Twenty Percent (20%) of the amount due.
B. Within one hundred twenty (120) days after the beginning of each
calendar year, commencing on January 1 of the year following the Lease
Commencement Date, Landlord shall give Tenant a statement of Landlord's estimate
of Building Operating Costs. Annually, after assessing past and estimated
future operating costs data, Landlord may adjust the monthly operating cost
payment provided for herein upward or downward to reflect more accurately the
anticipated monthly costs. All payments are due thirty (30) days after the
revision notice of the new rate.
As of the end of each calendar year, Landlord shall compute the
actual costs of operating the Building for the previous twelve (12) month
period. Tenant shall reimburse Landlord within thirty (30) days after notice of
any deficiency between estimated operating costs and actual costs. In the event
of overpayment by Tenant, Landlord shall pay such excess to Tenant within thirty
(30) days of such notice from Landlord.
Landlord shall, upon Tenant's written request, deliver to Tenant
a written accounting showing how Building Operating Costs were calculated for
the Building for any year. In the event Tenant objects to the statement of
Building Operating Costs for any year, Tenant and Landlord agree to cooperate in
good faith to resolve any such objection. The foregoing notwithstanding, Tenant
shall in no way be relieved of its obligation to pay Tenant's Pro Rata Share of
Building Operating Costs as calculated by Landlord during the period in which it
is cooperating with Landlord to resolve any objections as provided herein.
3. USES.
A. Tenant agrees continuously to use and occupy the Leased Premises
for the Permitted Purpose only, and for no other purpose. Tenant covenants to
comply with all building, zoning, fire and other governmental laws, ordinances,
regulations or rules applicable to the Leased Premises. Tenant shall not do or
permit anything to be done in or about the Leased Premises, or bring or keep
anything in the Leased Premises that may (i) increase the fire and
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extended coverage insurance premium upon the Building; (ii) damage the
Building; or (iii) constitute waste or be a nuisance, public or private, or
menace to tenants of adjoining premises or anyone else.
B. In the event the Leased Premises are not ready as of the Lease
Commencement Date, Tenant's sole remedy shall be the right to an abatement of
the Base Rent of each day following the scheduled Lease Commencement Date, for
so long as the Leased Premises are not ready, and, in such event, the actual
Lease Commencement Date shall be deemed to be the date on which such Leased
Premises are ready. No abatement of Rent shall be due, however, if the cause of
the delay is due to the fault of the Tenant or due to changes to the plans and
specifications by the Tenant.
C. Tenant shall have a non-exclusive right with other tenants in the
Building to use the exterior common areas, including the parking lot, in
accordance with Landlord's rules and regulations.
4. UTILITIES.
Depending upon the location of Leased Premises, Landlord may provide
to the Leased Premises the following utility services: water, sewer, electricity
and gas. Utility charges for which separate xxxxxxxx are not available shall be
treated as Building Operating Costs. If heat, light, water and any other
utility services are supplied to and metered directly to the Leased Premises,
Tenant shall pay the costs thereof, and make any required deposits related
thereto. Separate additional charges may be made to Tenant, if Tenant, in
Landlord's reasonable judgment, makes unusual or excessive utility system
demands where such services are not separately metered. Landlord shall not be
liable in any event, nor shall Rent be abated, because of interruption of
utility services to the Building, except due to gross negligence on its part.
5. BUILDING SERVICES.
Landlord agrees to maintain all parking and common areas, which shall
include lighting, gardening, cleaning, sweeping, painting and window cleaning;
and to provide for the Building such other services, including, but not limited
to, air-cooling, heating and janitorial services (the "Building Services").
Landlord shall maintain and repair the exterior of the Building, its structural
portions and the roof. The cost of Building Services shall be considered a
Building Operating Cost.
Air-cooling and heating shall be furnished by Landlord during normal
business hours (from 7:00 a.m. to 6:00 p.m. weekdays), or at such other times as
requested by Tenant, in which event Tenant agrees to pay the additional cost of
providing such services. Landlord shall not be liable in any event, nor shall
Rent be abated, because of interruption of Building Services.
6. INSURANCE, INDEMNITY.
A. Landlord shall secure and maintain throughout the term of this
Lease the following insurance coverage which Landlord deems reasonable in
amounts and form within Landlord's discretion:
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(1) Fire insurance with extended coverage endorsements
attached in the amount of the full insurable value of the Building;
(2) Comprehensive public liability insurance (including
bodily injury and property damage insurance) for the Building; and
B. Tenant shall, at its own expense, procure and maintain throughout
the term of this Lease:
(1) Comprehensive public liability insurance, without a
deductible, insuring Tenant's activities with respect to the Leased
Premises against loss, damage or liability for personal injury or
death, Landlord's damage to property or commercial loss occurring on
or about the Leased Premises, in amounts no less than One Million,
Five Hundred Thousand Dollars ($1,500,000.00) combined single limit;
and
(2) Workmen's compensation insurance in at least the
statutory amounts with respect to any work or other operation in or
about the Leased Premises.
C. Landlord and Landlord's mortgagee, if any, shall be named as
additional insureds under Tenant's insurance, which shall be primary and
non-contributing with any insurance carried by Landlord. Tenant's insurance
policy shall contain endorsements requiring thirty (30) days' notice to
Landlord prior to any cancellation or any reduction in amount of coverage.
Tenant shall deliver to Landlord, as a condition precedent to its taking
occupancy of the Leased Premises, a Certificate evidencing such insurance.
Tenant, as a material part of the consideration to be rendered to Landlord,
hereby waives all claims against Landlord for injury to persons or property
sustained by Tenant, its agents, employees, invitees, or third persons in or
about the Leased Premises from any cause arising at any time, to the extent
that said injury is covered by collectable insurance.
D. Tenant shall indemnify and hold Landlord harmless from and
against all demands, suits, fines, liabilities, losses, damages, costs and
expenses (including legal expenses) which Landlord may incur or become liable
for as a result of any breach by Tenant, its agents, employees, officers,
contractors, invitees or licensees of the terms or covenants of this Lease.
7. RENEWAL.
Provided that Tenant is not in default of this Lease, Tenant may renew
the Lease Term for a period of two five year options (the "Renewal Term") upon
written notice to Landlord at least one hundred twenty (120) days before the end
of the Lease Term. The renewal shall be upon the same terms and conditions
provided for in this Lease, except for the Base Rent and Lease Term. Tenant
shall accept the Leased Premises in its then "as is" condition and Tenant shall
not be granted any concessions or other privileges as provided for in this Lease
or subsequent amendments unless otherwise agreed by the Landlord. The Base Rent
for the extension shall be at the Fair Market Rental Value ("FMRV"), which shall
be calculated at the
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then prevailing rate for similar space in comparable buildings located in the
same market area as the Building. The Base Rent for the Renewal Term shall
increase yearly at the rate of Six Percent (6%).
Landlord shall notify Tenant of the FMRV within thirty (30) days after
receipt of Tenant's notice to renew. Tenant shall have fifteen (15) days from
the date of Landlord's notice to dispute, in writing, Landlord's finding of
FMRV, and, if not disputed, the FMRV shall be deemed accepted by the parties.
If, within ten (10) working days of Tenant's notice of a dispute, the parties
have not agreed upon FMRV, the parties may submit the dispute to arbitration
under the rules of the American Arbitration Association, whose decision shall be
binding. If the parties do not resolve the dispute thirty (30) days prior to
the end of the Lease Term, either party may, at its option, declare the renewal
notice to be null and void and the Lease shall terminate on the date set forth
in Paragraph 1(D).
8. REPAIRS.
Except for Building Services provided by Landlord, Tenant agrees to
maintain in a clean, orderly and sanitary condition, and keep in good repair,
the interior of the Leased Premises, ordinary wear and tear excepted. Such
maintenance and repair shall be at the sole cost of Tenant and shall include,
but not be limited to, the maintenance and repair of floor coverings, ceilings
and walls, front and rear doors, and all interior glass of the Leased Premises.
If Tenant fails to maintain or keep the Leased Premises in good repair and such
failure continues for five (5) days after written notice from Landlord, Landlord
may perform any such required maintenance and repairs and the cost thereof shall
be additional Rent payable by Tenant within ten (10) day of receipt of any
invoice from Landlord. Tenant shall not be responsible for any repairs to the
leased premises caused by Landlord or Landlord's agents.
9. TENANT'S PROPERTY.
Furnishings, trade fixtures and moveable equipment, if any, paid for
by the Tenant and not affixed to the Leased Premises shall be the property of
Tenant ("Tenant's Property"). Any furnishings, trade fixtures and moveable
equipment paid for by Landlord shall be Tenant's Property, if Tenant has
reimbursed Landlord for the cost of such property. On expiration of this Lease,
if there is then no Event of Default, Tenant may remove Tenant's Property and
shall remove any such property if directed by Landlord. Tenant shall repair or
reimburse Landlord for the cost of repairing any damage and disposal expense
resulting from removal of Tenant's Property. If Tenant fails to remove such
property as required under this Lease, Landlord may do so and Landlord shall not
be liable for any loss or damage of Tenant's Property which may occur during
Landlord's removal thereof.
Tenant's Property attached to the Leased Premises and deemed by
Landlord, in its sole discretion, to be a fixture shall be Landlord's Property,
unless Landlord's written approval is obtained prior to attachment.
Tenant hereby conveys to Landlord all of Tenant's Property as security
for the payment of all sums due hereunder to Landlord. Tenant shall not remove
Tenant's Property
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without the Landlord's consent until all payments due have first been paid
and discharged. It is intended by the parties that this Lease shall have the
effect of a mortgage or lien upon Tenant's Property. On expiration of this
Lease, if there is an Event of Default, Landlord may take possession of
Tenant's Property and either keep it for its own use or sell the same for the
best price that can be obtained at public or private sale. Landlord shall use
the proceeds from a sale to satisfy the amount due Landlord, including all
costs arising from the sale and shall pay the surplus, if any, to Tenant. If
Tenant's Property is offered at a public sale, Landlord may become the
purchaser of it.
10. IMPROVEMENTS AND ALTERATIONS BY TENANT.
Subject to the provisions of this Lease and the Workletter attached
hereto, Tenant may make such additional improvements or alterations to the
Leased Premises which it may deem necessary or desirable, but only with
Landlord's prior written approval (which approval shall not be unreasonably
withheld). Any such improvements or alterations by Tenant shall be done, at
Tenant's expense, by a licensed contractor approved by Landlord, in conformity
with plans and specifications approved by Landlord. If requested by Landlord,
Tenant shall post a bond or other security reasonably satisfactory to Landlord
to protect Landlord against liens arising from work performed for Tenant. All
work performed shall be done in a good and workmanlike manner and with materials
of the quality and appearance comparable to those in the Building, and shall
become the property of Landlord. Prior to the commencement of any work or
delivery of any materials to the Leased Premises, Tenant shall furnish Landlord,
for its approval, copies of the following:
(a) plans and specifications;
(b) names and addresses of contractors or subcontractors,
as applicable;
(c) copies of contracts;
(d) copies of contractor's insurance certificates;
(e) necessary permits; and
(f) such other items as may be reasonably requested by
Landlord to protect itself in connection with the work.
11. CASUALTY.
If the Leased Premises or the Building are destroyed or damaged by
fire, earthquake or other casualty to the extent that they are untenantable in
whole or in part, then Landlord shall, except as provided below, proceed with
reasonable diligence to rebuild and restore the Leased Premises, or such part
thereof as may be destroyed or damaged, and during the period of such rebuilding
and restoration, this Lease shall remain in full force and effect, and Rent
shall be abated in the same ratio as the square footage in the portion of the
Leased Premises rendered untenantable, if any, shall bear to the total square
footage of the Leased Premises. If
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Landlord shall reasonably determine that such destruction or damage cannot be
rebuilt and restored within one hundred eighty (180) days, it shall so notify
Tenant within thirty (30) days after the occurrence of such damage or
destruction. In such event, either Landlord or Tenant may, within twenty
(20) days after such notice, terminate this Lease. If neither party
terminates this Lease during such twenty (20) day period, this Lease shall
remain in effect and Landlord shall diligently proceed to rebuild and restore
the Leased Premises, and Rent shall xxxxx as set forth above.
Anything to the contrary notwithstanding, in the event the Leased
Premises are rendered untenantable due to the fault or neglect of Tenant, its
agents, employees, visitors or licensees, there shall be no abatement of Rent as
provided above.
12. ASSIGNMENT AND SUBLETTING.
Tenant shall not assign or sublet, or permit assigning or subletting
of this Lease, the Leased Premises or any part thereof, respectively, without
first obtaining the written consent of Landlord. Any consent of Landlord,
unless specifically stated therein, shall not relieve Tenant from its
obligations under this Lease. The sale of all or a majority of Tenant's stock,
a majority ownership interest or the sale of all or substantially all of its
assets shall constitute an assignment.
Tenant agrees to pay Landlord's reasonable attorneys' fees in
connection with any proposed assignment or subletting.
13. LIENS.
Tenant shall keep the Leased Premises and the Building free from any
liens arising out of any work performed, materials furnished, or obligations
incurred by Tenant, except the lien contained in Paragraph 9. In the event a
lien is filed against Tenant, the Leased Premises or the Building on account of
any work performed, materials furnished or obligations incurred by Tenant, then
at the written request of Landlord, Tenant shall post a bond, or other security
reasonably satisfactory to Landlord, as protection against any expenses, cost or
liability incurred by Landlord as a result of such lien. The bond shall be
posted (or other security acceptable to Landlord shall be provided) within ten
(10) days of receipt of such written request by Landlord, or Landlord shall have
the option to terminate this Lease in accordance with Paragraph 21 below.
14. CONDEMNATION.
If the whole or any part of the Leased Premises, excluding parking
areas, shall be taken under power of eminent domain or like power, or sold
under imminent threat thereof to any public authority or private entity
having such power, this Lease shall terminate as to the part of the Leased
Premises so taken or sold, effective as of the date possession is required to
be delivered to such authority or entity. Rent for the remaining term shall
be reduced in the proportion that the total square footage of the Leased
Premises is reduced by the taking. If a partial taking or sale of the
Building or the Leased Premises (i) substantially reduces the area of the
Leased Premises, resulting in a substantial inability of Tenant to use the
Leased Premises for the Permitted Purpose, or (ii) renders the Building not
viable to Landlord, Tenant in the case of
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(i), or Landlord in the case of (ii), may terminate this Lease by written
notice to the other party to be effective when the portion is taken or sold.
All condemnation awards and similar payments shall be paid and belong to
Landlord, except any amounts awarded or paid specifically for Tenant's trade
fixtures and relocation costs, provided such awards do not reduce Landlord's
award. Nothing contained herein shall diminish Tenant's right to deal on its
own behalf with the condemning authority.
15. SECURITY DEPOSIT.
The Tenant deposited with the Landlord, simultaneously with the
execution of this Lease, the sum of four thousand and eight hundred and eighty
dollars and seventy five cents ($4,880.75) (the "Security Deposit") as security
for the Rent payable hereunder, for the return of the Leased Premises in good
order and condition, and the performance of each and every one of the covenants,
conditions and agreements herein stipulated. The said sum shall not be
applicable to the payment of Rent by the Tenant, or any other charges for which
it may become liable under this Lease, and such deposit shall, in no way,
relieve Tenant from the faithful performance of all covenants and conditions
hereby imposed upon it. Landlord may use so much or all of the Security Deposit
for payment of past-due obligations of Tenant, and, upon notice and demand from
Landlord, Tenant shall, within five (5) days, pay sufficient sums to restore the
Security Deposit to its original amount. Landlord agrees that at the
termination of this Lease, or at the termination of any extension thereof, the
deposit shall be returned to Tenant thirty (30) days after the Leased Premises
have been vacated in good order and condition, provided that the Tenant shall
have complied in all respects with the terms, covenants and conditions herein.
In the event of a sale or leasing of the Building, Landlord shall have the right
to transfer the Security Deposit to its vendee and Landlord shall thereupon be
released by Tenant from all liability for the return of the Security Deposit.
In such event, Tenant agrees to look solely to the new landlord for the return
of said deposit. The provisions hereof shall apply to every transfer or
assignment made of the Security Deposit to a new landlord.
16. CONDITION OF LEASED PREMISES.
By taking possession hereunder, Tenant acknowledges that it has
examined the Leased Premises and has determined it is suitable for Tenant's
Permitted Purposes.
17. RULES AND REGULATIONS.
Tenant agrees it shall not bring, nor will it allow its agents,
employees, invitees or others claiming under Tenant to bring dogs, cats or any
other animals to the Building or Leased Premises. Tenant and its agents,
employees, invitees, or those claiming under Tenant shall at all times observe,
perform and abide by all rules and regulations promulgated by Landlord, from
time to time.
18. PARKING.
Tenant agrees not to overburden the parking facilities and agrees to
cooperate with Landlord and other tenants in the use of such facilities.
Landlord reserves the right in its absolute
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discretion to determine whether parking facilities are becoming overcrowded
and, in such event, to allocate specific parking spaces among Tenant and
other tenants or to take such other steps necessary to correct such
condition, including, but not limited to, policing and towing. Landlord may,
at its own discretion and with at least thirty (30) days' written notice to
Tenant, change the location and nature of the parking spaces available to
Tenant, its employees and invitees.
19. LANDLORD'S ACCESS.
Tenant shall permit Landlord to enter the Leased Premises at
reasonable times for the purpose of inspecting, altering and repairing the
Leased Premises and ascertaining compliance by Tenant with the provisions of
this Lease. Landlord may also show the Leased Premises to prospective
purchasers or, in the case of renters, commencing ninety (90) days prior to the
termination of this Lease, during regular business hours and upon reasonable
notice, provided that Landlord shall not unreasonably interfere with Tenant's
business operations.
20. SIGNS.
Landlord shall provide all signs on the Building and Leased Premises
at the time of occupancy. Tenant agrees to place no other signs on or about the
Building or Leased Premises. Any subsequent signage changes must be submitted
to the Landlord for approval and shall be at Tenant's expense.
21. TENANT'S DEFAULT.
A. It shall be an "EVENT OF DEFAULT" if:
(a) Tenant shall fail to pay any monthly installment of
Rent or any other charge or payment required of Tenant hereunder
within three (3) days of written notice;
(b) Tenant shall violate or fail to perform any of the
other conditions, covenants or agreements herein made by Tenant, and
such violation or failure shall continue for a period of fifteen (15)
days after written notice thereof to Tenant by Landlord;
(c) Tenant shall make a general assignment for the benefit
of its creditors or shall file a petition for bankruptcy or other
reorganization, liquidation, dissolution or similar relief;
(d) a proceeding is filed against Tenant seeking any relief
mentioned above which is not dismissed within thirty (30) days after
filing;
(e) a trustee, receiver or liquidator shall be appointed
for Tenant or a substantial part of its property;
(f) Tenant shall mortgage, assign (except as otherwise
provided in this Lease) or otherwise encumber its leasehold interest; or
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(g) Tenant shall abandon the Leased Premises.
B. If an Event of Default occurs, then Landlord may either:
(a) give Tenant written notice of Landlord's intention to
terminate this Lease on the date of such given notice or any later
date specified therein, and on such specified date all of Tenant's and
Landlord's rights and obligations under this Lease, except as
expressly reserved, shall cease; Landlord's written notice shall
operate as a notice to quit, and Landlord may proceed to recover
possession of the Leased Premises by any lawful means, including by
reentry and repossession; the obligation of Tenant to pay, and the
right of Landlord to recover, all Rent and other charges accrued up to
the time of termination or recovery of possession by Landlord,
whichever is later, together with the costs of collection, including
attorneys' fees, shall survive termination of the Lease; or
(b) without further notice, except as is required by law,
reenter and take possession of the Leased Premises, or any part
thereof, and repossess the same as Landlord's former estate, and expel
Tenant and those claiming through or under Tenant and remove the
effects of either or both without being deemed guilty of any manner of
trespass, without being deemed to have elected to terminate this
Lease, and without prejudice to any remedies for arrears of rent,
preceding breaches of covenants, or loss of profits; after reentering
and repossessing the Leased Premises without terminating this Lease,
Landlord may, from time to time, without terminating this Lease, relet
the Leased Premises or any part thereof, on behalf of Tenant, for such
term or terms and at such rent or rents, and upon such other terms and
conditions as Landlord may deem advisable in its sole discretion
(including concessions, free rent and payment of commissions), with
the right to make alterations and repairs to the Leased Premises.
C. In the event Landlord does not elect to terminate this Lease,
but, on the contrary, elects to take possession pursuant to Paragraph 21(B)(b),
then such repossession shall not relieve Tenant of its obligations and liability
under this Lease, all of which shall survive such repossession. In the event of
such repossession, at Landlord's option, Tenant shall pay to Landlord:
(a) all Rent which would be payable hereunder if such
repossession had not occurred, less the net proceeds, if any, of any
reletting or the value of Landlord's use, if any, of the Leased
Premises after deducting all of Landlord's expenses in connection with
such reletting, including, but not limited to, all repossession costs,
brokerage commissions, legal expenses, expenses of employees, costs of
alterations, expenses of preparation for reletting, rental concessions
and free rent. Tenant shall pay such Rent to Landlord on the days on
which the Rent would have been payable hereunder if possession had not
been retaken; or
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(b) all damages proximately resulting from the breach,
including the cost of recovering the Leased Premises and the present
value of the Rent for the balance of the Lease over the reasonable
rental value of the Leased Premises for the remainder of the Lease
Term.
D. Any damage or loss sustained by Landlord following Landlord's
election to reenter and repossess the Leased Premises without terminating this
Lease may be recovered by Landlord, at Landlord's option: at the time of
reletting; in separate actions, from time to time, as said damage shall have
been made more easily ascertainable by successive relettings; be deferred until
the expiration of the term of this Lease, in which event the cause of action
shall not be deemed to have accrued until the date of expiration of said term.
E. In addition to the remedies under Paragraphs B and C above,
Landlord may also elect to accelerate the Rent and any other sums due hereunder,
as damages for loss of the bargain and not as a penalty, including attorneys'
fees, reletting expenses, alterations and repair costs, brokerage commissions
and all other like amounts.
F. The provisions contained in this paragraph shall be in addition
to and shall not prevent the enforcement of any claim Landlord may have against
Tenant for anticipatory breach of the unexpired term of this Lease. All rights
and remedies of Landlord under this Lease shall be cumulative and shall not be
exclusive of any other rights and remedies provided to Landlord under applicable
law.
22. REMOVAL OF PROPERTY.
In an Event of Default, Landlord shall have the right, but not the
obligation, to remove from the Leased Premises all personal property, fixtures,
furnishings and other property located therein, and to store such property in
any place selected by Landlord, including, but not limited to, a public
warehouse, at the expense and risk of the owners thereof, with the right to sell
such stored property seven (7) days after notice to Tenant, after it has been
stored for a period of thirty (30) days or more. The proceeds of such sale
shall be applied first to the cost of such sale, second to the payment of the
charges for storage, if any, and third to the payment of other sums of money
which may then be due from Tenant to Landlord under any of the terms hereof, the
balance, if any, to be paid to Tenant.
23. QUIET ENJOYMENT, INABILITY TO PERFORM.
A. If, and so long as, Tenant pays Rent and keeps and performs each
and every term, covenant and condition herein contained on the part and on
behalf of Tenant to be kept and performed, Tenant shall quietly enjoy the Leased
Premises without hindrance or molestation by Landlord, subject to the terms,
covenants and conditions of this Lease and the Superior Instruments, as defined
and provided in Paragraph 32 below.
B. Landlord shall be entitled to contest any tax or assessment which
it deems to be improperly levied against the Building, so long as Tenant's use
of the Leased Premises is not interfered with.
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C. Except as provided in this Lease, this Lease and the obligations
of Tenant to pay Rent and perform all of the terms, covenants and conditions on
the part of Tenant to be performed shall be in no way affected, impaired or
excused because Landlord, due to an unavoidable delay, is (a) unable to fulfill
any of its obligations under this Lease, or (b) unable to make or is delayed in
making any repairs, replacements, additions, alterations or decorations, or (c)
unable to supply or is delayed in supplying any equipment or fixtures. Landlord
shall in each instance exercise reasonable diligence to effect performance when
and as soon as possible.
24. HOLD-OVER TENANCY.
If (without execution of a new lease or written extension) Tenant
shall hold over after the expiration of the term of this Lease, Tenant may, at
Landlord's election, be deemed to be occupying the Leased Premises as a tenant
from month to month, which tenancy may be terminated as provided by law. During
such tenancy, Tenant agrees to pay Tenant's Share of Building Operating Costs
and One Hundred and Fifty Percent (150%) of the then current Rent and to be
bound by all of the terms, covenants and conditions as herein specified, so far
as applicable.
25. ATTORNEYS' FEES.
In the event either party requires the services of an attorney in
connection with enforcing the terms of this Lease, or in the event suit is
brought for the recovery of any Rent due under this Lease, or for the breach of
any covenant or condition of this Lease, or for the restitution of the Leased
Premises to Landlord and/or eviction of Tenant during said Term, or after the
expiration thereof, the party prevailing in any such legal action shall be
entitled to an award for all legal costs and expenses, including, but not
limited to, a reasonable sum for attorneys' fees.
26. AMENDMENT, WAIVER.
This Lease constitutes the entire agreement between the parties. This
Lease shall not be amended or modified except in writing by both parties. No
covenant or term of this Lease shall be waived except with the express written
consent of the waiving party whose forbearance or indulgence in any regard shall
not constitute a waiver of such covenant or term. Failure to exercise any right
in one or more instances shall not be construed as a waiver of the right to
strict performance or as an amendment to this Lease.
27. NOTICES.
All notices required by this Lease shall be in writing and delivered
in person, or mailed by U.S. Registered or Certified Mail, return receipt
requested, postage prepaid, to the address specified below:
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A. If intended for Landlord:
XXXXX XXXXX
ATTACHE PUBLISHING SERVICES, INC.
000 XXXXXXX XXXXXX, XXXXX 000
XXXXXXXXXX, XX 00000
B. If intended for Tenant:
Renaissance Entertainment, Corp.
000 Xxxxxxx Xxxxxx, Xxxxx 000
XXXXXXXXXX, XX 00000
or to such other addresses as either party designates by notice, as provided in
this paragraph, to the other party, from time to time. Notice shall be
effective as of the date delivered in person or the date postmarked, whichever
is sooner.
28. BINDING EFFECT.
Subject to the provisions in Paragraph 12, this Lease shall be binding
upon and inure to the benefit of the parties and successors and assigns.
29. LIMITATION OF LANDLORD'S LIABILITY.
A. Landlord shall not be liable to Tenant or to Tenant's employees,
agents or visitors, or to any other person or entity, whomsoever, for any injury
to person or damage to or loss of property on or about the Leased Premises or
the Building caused by the negligence or misconduct of Tenant, its employees,
subtenants, licensees or concessionaires, or of any other person entering the
Building under the express or implied invitation of Tenant, or arising out of
the use of the Leased Premises by Tenant and the conduct of its business
therein, or arising out of any breach or default by Tenant in the performance of
its obligations hereunder or resulting from any other cause except Landlord's
negligence, and Tenant hereby agrees to indemnify Landlord and hold it harmless
from any loss, expenses or claims arising out of such damage or injury.
B. The Tenant agrees that it is Tenant's sole obligation to comply
with the provisions of the American's with Disabilities Act ("ADA") with regard
to the Leased Premises. Tenant agrees to indemnify, defend and protect Landlord
from any claim or suit brought against Landlord for Tenant's failure to comply
with the Tenant's obligations to maintain the Leased Premises pursuant to the
ADA. This obligation shall not extend to any other parts of the Building,
including common areas.
C. Tenant shall indemnify Landlord with regard to any loss or
liability that Landlord may incur as a result of Tenant's negligence or acts
with regard to any hazardous substance that is now or hereafter becomes located
in or on the Building or the Leased Premises.
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30. LANDLORD'S RESERVED RIGHTS.
Without notice and without liability to Tenant, Landlord shall have
the right to sell the Building and assign this Lease to the purchaser (and upon
such assignment be released from all of its obligations under this Lease which
accrue after such assignment). Tenant agrees to attorn to such purchaser, or
any other successor or assign of Landlord through foreclosure or deed in lieu of
foreclosure or otherwise and to recognize such person as Landlord under this
Lease, as provided for fully in Paragraph 32 below.
31. ESTOPPEL STATEMENT.
Within twenty (20) days after request by Landlord, its agents,
successors or assigns, Tenant shall deliver, in recordable form, a certificate
to any proposed mortgagee or purchaser, certifying, if applicable (i) that this
Lease is in full force and effect, without modification, (ii) the amount, if
any, of prepaid rent and security deposit paid by Tenant to Landlord, (iii) that
Landlord, as of the date of the certificate, has performed all of its
obligations due to be performed under this Lease and that there are no defenses,
counterclaims, deductions or off-sets outstanding, or other excuses for Tenant's
performance under this Lease, or stating those claimed by Tenant, and (iv) any
other fact reasonably requested by Landlord or such proposed mortgagee or
purchaser, which does not modify or conflict with Tenant's rights under this
Lease. Tenant's failure to deliver such statement in time shall be conclusive
upon Tenant: (a) that this Lease is in full force and effect, without
modification except as may be represented by Landlord; (b) that there are no
uncured defaults in Landlord's performance and Tenant has no right of off-set,
counterclaims, defenses or deduction against Rent or Landlord hereunder; and (c)
that no more than one period's rent has been paid in advance.
32. SUBORDINATION.
The rights of Tenant hereunder are, and shall be, at the election of
any mortgagee, subject and subordinate to the lien of any deeds of trust,
mortgages, the encumbrance of any leasehold financing, or the lien resulting
from any other method of financing or refinancing, now or hereafter in force
against the Building of which the Leased Premises are a part, and to all
advances made, or hereafter to be made upon the security thereof (hereafter
referred to as the "SUPERIOR INSTRUMENTS"). The foregoing notwithstanding, for
any liens or Superior Instruments filed of record after the execution of this
Lease, the rights of Tenant under this Lease shall not be subject or
subordinated to such liens or Superior Instruments unless the holders thereof
execute an attornment and non-disturbance agreement. If requested, Tenant
agrees to execute whatever reasonable documentation may be required to further
effectuate the provisions of this paragraph.
Tenant agrees to attorn to any purchaser of the Building, or any other
successor or assign of Landlord through foreclosure or deed in lieu of
foreclosure, in return for and upon delivery to Tenant by such purchaser or
mortgagee, as the case may be, of an attornment and non-disturbance agreement.
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33. BROKERAGE.
Tenant represents and warrants to Landlord that no broker or agent
negotiated or was instrumental in the negotiation or consummation of this Lease,
except for The Colorado Group, and Tenant agrees to indemnify and hold Landlord
harmless against any loss, expense, cost or liability incurred by Landlord as a
result of a claim by a broker.
34. APPLICABLE LAW.
This Lease shall be construed according to the laws of the State of
Colorado and venue shall be in Boulder County, Colorado.
IN WITNESS WHEREOF, the parties have executed this Lease the day and
year first above written.
LANDLORD:
Attache Publishing Services, Inc.
a Colorado Corporation
By:
---------------------------------
Xxxxx X. Xxxxx, President
TENANT:
Renaissance Entertainment, Corp.
By:
---------------------------------
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EXHIBIT A
LEASED PREMISES
Leased Premises shall mean the area known as Suite 102 or the area shown on
the plan below.
