Exhibit 10.4
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LEASE
THIS LEASE, made this ___day of September, 2005, by and between THE ROLLNICK
BUILDING (hereinafter called "Landlord") and Gold Resource Corporation
(hereinafter called "Tenant"), WITNESSETH:
That in consideration of the payment of rent and the keeping and
performance of the covenants and agreements by Tenant, as hereinafter set forth,
Landlord hereby leases and demises unto Tenant and Tenant leases from Landlord
the premises known and described as approximately 979 rentable square feet
located on the 3rd floor, known as Suite 301 (hereinafter referred to as the
"Premises" shown on the plat hereto attached as Exhibit "A" and being a part of
that building located at 000 Xxxxxxxxx Xxxxxx. Xxxxxx. Xxxxxxxx. 00000
TO HAVE AND TO HOLD the same, with all appurtenances, unto Tenant from 12
o'clock noon on the 1st day of October, 2005, for, during and until 12 o'clock
noon on the 30th day of September, 2008, ("Primary Lease Term"). Tenant shall
pay Landlord as minimum monthly rent the sum of see paragraph 34 ("Minimum
Monthly Rent"), commencing October 1, 2005, and on the first day of each month
thereafter during the term hereof, which sum is subject to possible adjustment
as provided in paragraph 5 herein. All rents shall be paid in advance, without
notice, setoff, abatement or diminution, in the office of Landlord in Denver,
Colorado, or at such place as Landlord from time to time designates in writing,
1. DEPOSIT: It is agreed that Tenant, concurrently with the execution of this
lease, has deposited with Landlord, and will keep on deposit at all times during
the term of this lease, the sum of $1468,50, the receipt of which is hereby
acknowledged, as security for the payment by Tenant of the rent herein agreed to
be paid and for the faithful performance of all the terms, conditions and
covenants of this lease. lf, at any time during the term of this lease, Tenant
shall be in default in the performance of provision of this lease, Landlord
shall have the right to use said deposit, or so much thereof as necessary, in
payment of any rent in default as aforesaid, reimbursement of any expense and
payment of any damages incurred by Landlord reason of Tenant's default. In such
event, Tenant shall immediately on demand pay Landlord a sufficient amount in
ash to restore said deposit to its original 'amount, If said deposit has not
been utilized as aforesaid, said deposit, or as much thereof as has not been
utilized, shall be refunded to Tenant, without interest, upon full performance
of this lease by Tenant. Landlord shall have the right to commingle said deposit
with other funds of Landlord. Landlord may deliver the funds deposited herein by
Tenant to the purchaser of Landlord's interest in the Premises if such interest
be sold, and thereupon, Landlord shall be discharged from further liability with
respect to such deposit. If claims of Landlord exceed said deposit, Tenant shall
remain liable to Landlord for the balance of such claims.
2. PAYMENT OF RENT: Tenant covenants and agrees to pay all rents and sums
provided to be paid to Landlord hereunder at the times and in the manner herein
provided.
3. ACCEPTANCE OF PREMISES BY TENANT: Taking possession of the Premises by Tenant
shall be conclusive evidence against Tenant that the Premises were in the
condition agreed upon between Landlord and Tenant, and acknowledgment of
satisfactory completion of any fix-up or remodeling, as the case may be, which
Landlord has agreed in writing to perform, except that if Landlord has failed to
complete any punch list items by the time Tenant takes possession of the
Premises, Landlord shall make reasonable and timely efforts to complete the
same.
4. Except as set forth in Exhibit "B" attached hereto, Tenant accepts the
Premises in its present "as is" condition. All alterations and improvements to
the Premises shall be subject to Landlord's prior written consent pursuant to
the terms and provisions of the lease and, except as set forth in Exhibit "B"
hereto, shall be at Tenant's sole cost and expense, including, but not limited
to, any cost or expense incurred as a result of the installation of conduit
required by Denver Building Code Rulings for Tenant's telephone installation in
the return air plenum suspended ceiling in the Premises. All changes and
alterations to designation signs for the Premises and in the building directory
located in the lobby of the Building, any changes in locks required, and any
changes required in the HVAC Systems as a result of Tenant's use of the Premises
shall likewise be at Tenant's sole cost and expense and shall require the prior
written approval of Landlord.
5. RENT ADJUSTMENT.
5.01 Rent Adjustment:
{SECTION INTENTIONALLY OMITTED]
5.02 Operating Expenses
A. Definitions: In addition to terms hereinabove defined, the following items
shall have the following meanings with respect to the provisions of this lease:
(1) "Base Operating Expenses" shall mean an amount equal to Six and 25/100
Dollars ($6.25) multiplied by the number of square feet of Rentable Area.
(2) "Rentable Area" shall mean 29,576 rentable square feet which is all rentable
space available for lease in the building as calculated by Landlord. If there is
a significant change in the aggregate Rentable Area as a result of any addition
thereto, partial destruction thereof, modification to building design or similar
case, which causes a reduction or increase on a permanent basis, Landlord's
Accountants, as hereinafter defined, shall make such adjustments in the
computations as shall be necessary to provide for any such changes.
(3) "Tenant's Pro Rata Share" shall mean 3.31%. If, thereafter, any changes are
made to the Rentable Area of the Premises, Tenant's Pro-Rata Share shall be
recomputed by dividing the total rentable square footage of space then being
leased by Tenant (including any additional space) by the Rentable Area and the
resulting figure shall become Tenant's Pro-Rata Share.
(4) "Lease Year" shall mean) each twelve (12) month period beginning with the
date the Primary Lease Term commenced, or any anniversary thereof, and ending on
the same date one (1) year later. If the Lease Year is not concurrent with the
calendar year or fiscal year, Landlord reserves the right, at any time during
the Primary Lease Term, or any extensions thereof, to make all adjustments
provided herein on a calendar year or fiscal year basis with all appropriate
proration for the Lease Year in which such conversion is made and in which the
term ends and all references in this Subparagraph 5.02 to "Lease Year" Shall
thereafter be deemed to refer to "calendar year" or to "fiscal year".
(5) "Building Complex," as used herein shall mean the Building of which the
Premises are a part, the real property on which the same is located, parking
areas, common areas and any other areas located on said real property and
designated by Landlord for use by all Tenant's in the Building.
(6) "Landlord's Accountants" shall mean that individual or firm (whether or not
licensed accountants), including Building management, employed by Landlord from
time to time to keep the books and records for the Building Complex, and/or to
prepare the federal and state income tax returns for Landlord with respect to
the Building Complex, which individual may be a direct employee or agent of
Landlord, all of which books and records shall be certified to by an appropriate
representative of Landlord.
(7) "Operating Expenses" shall mean all operating expenses of any kind or nature
which are necessary, ordinary, or customarily incurred in connection with the
operation, maintenance and repair of the Building Complex as determined by
Landlord's Accountants. Operating Expenses shall include, but not be limited to:
(a) all real property taxes and assessments levied against the Building
Complex by any governmental or quasi-governmental authority. The foregoing
shall include any taxes, assessments, surcharges, or service or other fees
of any nature whether or not presently in effect which shall hereafter be
levied on the Building Complex as a result of the use, ownership or
operation of the Building Complex or any other reason, whether in lieu of,
or in addition to, any current real estate taxes and assessments; provided,
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however, any taxes which shall be levied on the rentals of the Building
Complex shall be determined as if the Building Complex were Landlord's only
property, and provided further that in no event shall the term "taxes or
assessments," as used herein, include any net federal or state income taxes
levied or assessed on Landlord, unless such taxes are a specific substitute
for real property taxes. Such term shall, however, include gross taxes on
rentals. Expenses incurred by Landlord for tax consultants and in
contesting the amount or validity of any such taxes or assessments shall be
included in such computations (all of the foregoing are collectively
referred to herein as the "Taxes"). "Assessment" shall include so called
special assessments, license tax, business license fee, business license
tax, levy, charge, penalty or tax imposed by any authority having the
direct power to tax, including any city, county, state or federal
government, or any school, agricultural, lighting, water, drainage, or
other improvement or special district thereof, against the Premises, the
Building or Building Complex or any legal or equitable interest of Landlord
therein. For the purposes of this lease, any special assessments shall be
deemed payable in such number of installments as is permitted by law,
whether or not actually so paid. If the Building Complex has not been fully
assessed as a completed project, for the purposes of computing the
Operating Expenses for any adjustment required therein, the Taxes shall be
adjusted by Landlord, as of the date on which the adjustment is to be made,
to reflect full completion of the Building including all standard tenant
finish work;
(b) costs of supplies, including, but not limited to, the cost of relamping
all Building standard lighting as the same may be required from time to
time;
(c) costs incurred in connection with obtaining and providing energy for
the Building Complex, including, but not limited to, costs of propane,
butane, natural gas, steam, electricity, solar energy and fuel oils, coal
or any other energy sources;
(d) costs of water and sanitary and storm drainage services;
(e) costs of janitorial and security services;
(f) all costs of repairs, replacements and improvements of the Building
Complex including, but not limited to, structure, equipment, fixtures and
mechanical systems, as well as the costs of HVAC and other mechanical
maintenance and contracts, and tools and equipment used in operating or
maintaining the Building Complex;
(g) costs of maintenance and replacement of landscaping;
(h) insurance premiums, including fire and all-risk coverage, together with
loss of rent endorsement, the part of any claim required to be paid under
the deductible portion of any insurance policies carried by Landlord in
connection with the Building Complex, public liability insurance and any
other insurance carried by Landlord on the Building Complex or any
component parts thereof (all such insurance shall be in such amounts as may
be required by any holder of a Mortgage and/or Trust Deed affecting all or
any portion of the Building Complex or as Landlord may reasonably
determine);
(i) labor costs, including wages and other payments, costs to Landlord of
worker's compensation and disability insurance, payroll taxes, welfare
fringe benefits, and all legal fees and other costs or expenses incurred in
resolving any labor dispute;
(j) professional building management fees including costs of storage and
office space required by management in the Building;
(k) legal, accounting, inspection, and other consultation fees (including,
without limitation, fees charged by consultants retained by Landlord for
services that are designed to produce a reduction in Operating Expenses or
to reasonably improve the operation, maintenance or state of repair of the
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Building Complex) incurred in the ordinary course of operating the Building
Complex or in connection with making the computations required hereunder or
in any audit of operations of the Building;
(l) the costs of capital improvements or structural repairs or replacements
made in or to the Building Complex in order to conform to changes
subsequent to the date of this lease in any applicable laws, ordinances,
rules, regulations or orders of any governmental or quasi -governmental
authority having jurisdiction over the Building Complex (herein "Required
Capital Improvements");
B. If any increase occurs in Operating Expenses during any Lease Year during the
Primary Lease Term, or any extension thereof, including the first Lease year, in
excess of the Base Operating Expenses, Tenant shall pay to Landlord Tenant's Pro
Rata Share of the amount of such increase within thirty (30) days following
billing therefor by Landlord. In addition to the foregoing, it is agreed that,
during each Lease year beginning with to first month of the second Lease Year
and each month thereafter during the Primary Lease Term, or any extension
thereof. Tenant shall pay to Landlord, at the same time as the Minimum Monthly
Rent is paid, an amount equal to one-twelfth (1/12) of Landlord's estimate (as
determined by Landlord's Accountants) of Tenant's Pro Rata Share of any
projected increases in the Operating Expenses for the particular Lease Year in
excess of the Base Operating Expenses, with a final adjustment to be made
between the parties within ninety (90) days after the end of each Lease Year. In
computing the increase in the monthly rental payments based upon Tenant's Pro
Rata Share of the estimated increase of Operating Expenses for any particular
Lease year, Landlord's Accountants shall take into account any prior increases
in the monthly rental payments attributable to Tenant's Pro Rata Share of
previously estimated increases. If during any Lease Year Landlord's projected
increase in Operating Expenses for said year over the Base Operating Expenses is
less than the projected increase for the previous Lease Year on which Tenant's
monthly rental payments were based for said year, the rental payments to be paid
by Tenant for the new Lease Year shall be decreased accordingly; provided,
however, in no event will the rental to be paid by Tenant hereunder ever be less
than the Minimum Monthly Rent plus all amounts of Additional Rent.
As soon as practicable following the end of each Lease Year during the Primary
Lease Term, or any extension thereof, including the first Lease Year, Landlord
shall submit to Tenant a statement prepared by Landlord's Accountants setting
forth the exact amount of Tenant's Pro Rata Share of the increase, if any, of
the Operating Expenses for the Lease Year just completed over the Base Operating
Expenses. Beginning with said statement for the second Lease Year, it shall also
set forth the difference, if any, between Tenant's actual Pro Rata Share of the
increase in Operating Expenses for such Lease Year just completed and the
estimated amount of Tenant's Pro Rata Share of such increase on the basis of
which Tenant's monthly rent was computed for such particular Lease Year. Each
such statement shall also set forth the projected increase, if any, in Operating
Expenses for the new Lease Year over the Base Operating Expenses and the
corresponding increase or decrease in Tenant's monthly rent for such new Lease
Year above or below the rental paid by Tenant for the immediately preceding
Lease Year, computed in accordance with the foregoing provisions. To the extent
that Tenant's Pro Rata Share of the increase in Operating Expenses for the
period covered by such statement is different from the estimated amount upon
which Tenant paid rent during the Lease Year just completed, Tenant shall pay to
Landlord the difference in cash within thirty (30) days following receipt by
Tenant of such statement from Landlord, or receive a credit on the next month's
rental owing hereunder as the case may be. Until Tenant receives such statement,
Tenant's monthly rent for the new lease Year shall continue to be paid at the
rate being paid for the particular Lease Year just completed, but Tenant shall
commence payment to Landlord of the monthly installments of rent on the basis of
said statement beginning on the first day of the month following the month in
which Tenant receives such statement. Moreover, Tenant shall pay to Landlord, or
deduct from the rent, as the case may be, on the date required for the first
payment of rent as adjusted, the difference, if any, between the monthly
installments of rent so adjusted for the new Lease Year and the monthly
installments of rent actually paid during the new Lease Year. In addition to the
above, if, during any particular Lease year, there is a change in the
information on which Landlord's Accountants based the estimate upon which Tenant
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is then making its estimated rental payments so that such estimate furnished to
Tenant is no longer accurate, Landlord shall be permitted to revise such
estimate by notifying Tenant, and there shall be such adjustments made in the
monthly rental on the first day of the month following the serving of such
statement on Tenant as shall be necessary by either increasing or decreasing, as
the case may be, the amount of monthly rent then being paid by Tenant for the
balance of the Lease Year (but in no event shall any such decrease result in a
reduction of the rent below the Minimum Monthly Rent and all amounts of
Additional Rent), as well as an appropriate adjustment in cash based upon the
amount theretofore paid by Tenant during such particular Lease year pursuant to
the prior estimate.
Landlord's and Tenant's responsibilities with respect to the Operating Expense
adjustment described herein shall survive the expiration or early termination
this Lease.
If the Rentable Area is not fully 'occupied during any particular Lease year,
Landlord's Accountants shall adjust those Operating Expenses which are affected
by the occupancy rates for the particular Lease Year, or portion thereof, as the
case may be, to reflect an occupancy of not less than ninety-five percent (95%)
of all such Rentable Area.
C. If Tenant disputes the amount of an adjustment submitted by Landlord's
Accountants, or the proposed estimated increase or decrease on the basis of
which Tenant's rent is to be adjusted as provided in Subparagraph 2 above,
Tenant shall give Landlord written notice of such dispute within thirty (30)
days after Landlord's Accountants advise Tenant of such adjustment or proposed
increase or decrease. Tenant's failure to give such notice shall waive its right
to dispute the amounts so determined. If Tenant timely objects, Tenant shall
have the right to engage its own certified public accountants ("Tenant's
Accountants") for the purpose of verifying the accuracy of the statement
complained of, or the reasonableness of the estimated increase or decrease. If
Tenant's Accountants determine that an error has been made, Landlord's
Accountants and Tenant's Accountants shall endeavor to agree upon the matter,
failing which the parties shall settle the dispute by judicial action or in such
other manner as they agree. All costs incurred by Tenant in obtaining its own
accountants shall be paid by Tenant unless Tenant's Accountants disclose an
error, acknowledged by Landlord's Accountants (or found to have occurred in a
judicial action) of more than ten percent (10%) in the computation of the total
amount of Operating Expenses as set forth in the statement submitted by
Landlord's Accountants with respect to the matter complained of, in which event
Landlord shall pay the reasonable costs incurred by Tenant in obtaining such
audit. Tenant shall continue to pay Landlord the amount of the adjusted monthly
installments of rent determined by Landlord's Accountants until the adjustment
has been determined to be incorrect as aforesaid. Landlord's or Landlord's
Accountants' delay in submitting any statement contemplated herein for any Lease
Year shall not affect the provisions of this Paragraph 5, nor constitute a
waiver of Landlord's rights as set forth herein for said Lease Year or any
subsequent Lease Years during the Primary Lease Term and any extensions thereof.
6. SERVICES. Landlord, without charge except as provided herein, and in
accordance with standards from time to time prevailing for similar office
buildings in Denver, Colorado, agrees to furnish during Ordinary Business Hours,
as hereinafter defined, such heated or cooled air to the Premises, as may in the
judgment of Landlord be reasonably required for comfortable use and occupancy,
provided that Tenant complies with the recommendations of Landlord's engineer
regarding occupancy and use of the Premises; to provide, during such Ordinary
Business Hours, the use of passenger elevator for access and egress to and from
the Premises; and to provide janitorial services for the Premises (including
such window washings as may in the judgment of Landlord by reasonably required).
Unless and until the practice in first-class office buildings changes, such
janitorial services will be provided only on Monday through Friday, except for
legal holidays; and during Ordinary Business Hours to cause electric current to
be supplied for light to the Premises and public halls. It is understood that
Tenant shall use such electric current only for building standard lighting,
computers, typewriters, adding machines, calculators and small reproduction
machines, and to the extent that electric current is used for any other purpose,
Tenant's rent may be increased from time to time by Landlord in such amounts as
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Landlord reasonably determines to cover the costs of such increased use. Such
increases shall also be paid monthly. Prior to installation or use by Tenant of
any equipment other than as set forth above, Tenant shall notify Landlord of
such intended installation or use and Landlord may, at its option, require
Tenant at Tenant's sole cost and expense to install a check meter to assist in
determining the fair amount by which Tenant's rent should be increased. If
Tenant desires electric current, heating or cooled air to the Premises during
periods other than during Ordinary Business Hours, Landlord will use reasonable
efforts to supply the same, but at the expense of Tenant, as determined from
time to time by Landlord. Not less than 48 hours prior notice shall be given by
Tenant to Landlord of Tenant's desire for such services. If Tenant requires
janitorial services other than those required to be provided to other Tenant's
of the Building generally, Tenant shall separately contract for such services
with the same company furnishing janitorial services to Landlord.
"Ordinary Business Hours" as used herein shall mean and refer to 7:00 a.m. to
6:00 p.m. Monday through Friday and 7:00 a.m. to 12:00 p.m. on Saturday, legal
holidays excepted.
7. INTERRUPTION OR DISCONTINUANCE OF LANDLORD'S SERVICES. Tenant agrees that
Landlord shall not be liable for failure to supply any such heating, air
conditioning, elevator, electrical, janitorial, lighting or other services
during any period when Landlord uses reasonable diligence to supply such
services, or during any period Landlord is required to reduce or curtail such
services pursuant to any applicable laws, rules or regulations, now or hereafter
in force or effect, it being understood that Landlord may discontinue, reduce or
curtail such services, or any of them (either temporarily or permanently), at
such times as it may be necessary by reason of accident, unavailability of
employees, repairs, alterations, improvements, strikes, lockouts, riots, acts of
God, application of applicable laws, statutes, rules and regulations, or due to
any other happening beyond the control of Landlord. In the event of any such
interruption, reduction or discontinuance of Landlord's services (either
temporary or permanent), Landlord shall not be liable for damages to person or
property as a result thereof, nor shall the occurrence of any such event in any
way be construed as an eviction of Tenant, or cause or permit an abatement,
reduction or setoff of rent, or operate to release Tenant from any of Tenant's
obligations hereunder. Tenant further agrees that if any installment of rent
shall remain unpaid for more than fifteen (15) days after it shall become due,
Landlord may, without notice to Tenant, discontinue furnishing heat, air
conditioning, electricity, janitorial or lighting services, or any of them,
until all arrears of rent shall have been paid in full.
8. QUIET ENJOYMENT. Landlord agrees to warrant and defend Tenant in the quiet
enjoyment and possession of the Premises during the term of this lease so long
as Tenant complies with the provisions hereof.
9. CHARACTER OF OCCUPANCY. Tenant covenants and agrees to occupy the Premises as
general offices and for no other purpose, and to use them in a careful, safe and
proper manner; to pay on demand for any damage to the Premises caused by misuse
or abuse of the Premises by Tenant, its agents or employees, or by any other
person entering upon the Premises under express or implied invitation of Tenant;
not to use or permit the Premises to be used for any purposes prohibited by the
laws, codes, rules and regulations of the United States, the State of Colorado,
or of the City and County of Denver. Tenant shall not commit waste, or suffer or
permit waste to be committed, or permit any nuisance on or in the Premises.
10. ALTERATIONS AND REENTRY BY LANDLORD. Tenant covenants and agrees to permit
Landlord at any time to enter the Premises for any of the following purposes:
(a) to examine and inspect the same, or, if Landlord so elects, (b) to perform
any obligations of Tenant hereunder which Tenant shall fail to perform, (c) to
perform such cleaning, maintenance, janitorial services, repairs, additions or
alterations as Landlord may deem necessary or proper for the safety, improvement
or preservation of the Premises, or of other portions of the Building, or as may
be required by governmental authorities through any code, rule, regulation,
ordinance and/or law, (d) to post "for sale" signs at any time during the
Primary Lease Term or any extension thereof or "for rent" signs during the last
three months of the Primary Lease Term or any extension thereof and (e) to s low
the Premises to prospective brokers, agents, buyers or Tenant's. Any such
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reentry shall not constitute an eviction, nor entitle Tenant to abatement of
rent. Furthermore, Landlord shall at all times have the right at its election to
make such alterations or changes in other portions of the Building as it may
from time to time deem necessary and desirable as long as such alterations and
changes do not unreasonably interfere with Tenant's use and occupancy of the
Premises.
11. ALTERATIONS BY TENANT. Tenant covenants and agrees not to make any
alterations in or additions to the Premises without first obtaining the written
consent of Landlord All alterations and additions to the Premises, including, by
way of illustration and not by limitation, all partitions, paneling, carpeting,
drapes or other window coverings and light fixtures (but not including movable
office furniture not attached to the Building) shall be deemed a part of the
real estate and the property of Landlord and shall remain upon and be
surrendered with the Premises as a part thereof without molestation, disturbance
or injury at the end of said term, whether by lapse of time or otherwise, unless
Landlord by notice given to Tenant no later than fifteen (15) days prior to the
end of the term shall elect to have Tenant remove all or any of such alterations
or additions, and in such event, Tenant shall promptly remove at its expense
such alterations and additions and restore the Premises to its condition prior
to the making of the same, reasonable wear and tear excepted.
12. REPAIRS. Tenant shall keep the Premises in as good order, condition and
repair and in an orderly state, as when they were entered upon, loss by fire or
other casualty (unless caused by the negligence of Tenant, its agents, employees
or invitees) or ordinary wear excepted. All such repair and maintenance work,
and any alterations or additions by Tenant permitted by Landlord under Paragraph
10 above shall be done at Tenant's expense by Landlord's employees or, with
Landlord's consent, by persons requested by Tenant and authorized in writing by
Landlord. If Landlord authorizes persons requested by Tenant to perform such
work, prior to the commencement of any such work Tenant shall on request deliver
to Landlord certificates issued by insurance companies qualified to do business
in the State of Colorado, evidencing that worker's compensation, public
liability insurance and property damage insurance, all in the amounts, with
companies and on forms satisfactory to Landlord, are in force and effect and
maintained by all contractors and subcontractors engaged by Tenant to perform
such work. All such policies shall name Landlord and building management as an
additional insured. Each such certificate shall provide that the same may not be
cancelled or modified without thirty (30) days' prior written notice to
Landlord.
13. MECHANIC'S LIENS. Tenant shall pay or cause to be paid all costs for work
done or caused to be done by Tenant on the Premises of a character which will or
may result in liens on Landlord's interest therein, and Tenant will keep the
Premises free and clear of all mechanic's liens and other liens on account of
work done for Tenant or persons claiming under it. Tenant hereby agrees to
indemnify, defend and save Landlord harmless of and from all liability, loss,
damage, costs or expenses, including attorneys' fees, on account of any claims
of any nature whatsoever including claims on liens of laborers, material men or
others for work performed for, or materials or supplies furnished to Tenant or
persons claiming under Tenant. Should any liens be filed or recorded against the
Premises or any action affecting the title thereto be commenced, Tenant shall
cause such liens to be removed of record within five (5) days after notice from
Landlord. If Tenant desires to contest any claim of lien, it shall furnish
Landlord adequate security of at least one hundred fifty percent (150%) of the
amount of the claim 1, plus estimated costs and interest, and if a final
judgment establishing the validity or existence of any lien for any amendment is
entered, Tenant shall pay and satisfy the same at once. If Tenant shall be in
default in paying any charge for which a Mechanic's lien or suit to foreclose
the lien has been recorded or filed, and shall not have given Landlord security
as aforesaid, Landlord may (but without being required to do so) pay such lien
or claim and any costs thereon, and the amount so paid, together with reasonable
attorneys' fees incurred in connection therewith, shall be immediately due from
Tenant to Landlord.
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14. SUBLETTING AND ASSIGNMENT.
A. Tenant shall not, directly or indirectly, sell, assign, encumber, pledge or
hypothecate all or any portion of its interest in the Premises, nor permit all
or any portion of the Premises to be occupied by anyone other than Tenant, nor
sublet all or any portion of the Premises without the written consent of
Landlord first being obtained. Notwithstanding the consent of Landlord, any such
subletting or assignment shall not relieve Tenant from its primary obligations
hereunder to Landlord. If this lease be assigned, or if the Premises or any part
thereof be sublet or occupied by anybody other than Tenant, Landlord may, after
default by Tenant, collect the rent from the assignee, subtenant or occupant,
and apply the net amount collected to the rent herein reserved, but no such
assignment, subletting, occupancy or collection shall be deemed an acceptance of
the assignee, subtenant or occupant as the Tenant hereof, or a release of Tenant
from further performance by Tenant of covenants on the part of Tenant herein
contained.
B. If Tenant desires to enter into an assignment or sublease it shall first give
written notice of its intention to Landlord, which notice shall include the name
of the proposed assignee or subtenant ("Subtenant"); the nature of Subtenant's
business to be carried on in the Premises; the terms of the proposed assignment
or sublease and Subtenant's most recent financial statement. Notwithstanding
anything contained hereinabove in this Paragraph 14 to the contrary, at anytime
within thirty (30) days after Landlord's receipt of Tenant's notice herein,
Landlord may elect any of the following options in its absolute and sole
discretion: (i) consent to such subletting or assignment or (ii) refuse to grant
such consent or (iii) refuse to-grant such consent and terminate this lease as
to the portion of the Premises with respect to which such consent was requested,
provided, however, if Landlord refuses to grant such consent and elects to
terminate the lease as to such portion of the Premises, Tenant shall have the
right to withdraw its request for such consent and remain in possession of the
Premises under the terms and conditions hereof. If the lease is terminated as
set forth herein, such termination shall be effective as of the date set forth
in a written notice from Landlord to Tenant, which date shall not be less than
thirty (30) days nor more than sixty (60) days following such notice. Landlord's
consent to any requested subletting or assignment shall not relieve Tenant from
obtaining Landlord's express consent to any further assignment or sublease nor
waive Landlord's right to refuse to consent to any other such request, or to
terminate this lease if such request is made, all as provided above.
Upon and following any assignment or subletting, Tenant shall pay to Landlord
(in addition to all other amounts payable by Tenant under this Lease) fifty
percent (50%) of all cash and other consideration payable by the assignee or
sublessee in excess of the rent and other amounts otherwise payable by Tenant
from time to time under this Lease after deducting all of Tenant's reasonable
expenses in connection with such assignment or subletting exclusive of
attorney's and other consultant's fees. The additional amount payable by Tenant
under this section shall be paid within ten (10) days following its receipt from
the assignee or sublessee as additional rent. If any part of such consideration
received by Tenant is to be paid other than in cash, the amount due Landlord
shall be the cash equivalent for its share of non-cash consideration based upon
its fair market value. At Landlord's option, Landlord may agree to accept the
assignee or sublessee as a direct Tenant upon the same term and conditions
provided herein and in the assignment or sublease document entered into by
Tenant and release Tenant from further obligation hereunder. In the event Tenant
is released from further obligation hereunder, Landlord shill be entitled to all
amounts to be pad by the assignee or sublessee, less Tenant's reasonable
expenses in connection with such assignment or sublease exclusive of attorney's
and other consultant's fees. Tenant agrees to reimburse Landlord for all
reasonable expenses incurred in connection with any assignment or subletting,
including but not limited to attorney's fees, plus an administrative processing
fee of seven hundred fifty dollars ($750.00).
15. INJURY TO PERSON OR PROPERTY. Tenant shall neither hold, nor attempt to hold
Landlord liable for any injury or damage, either proximate or remote, occurring
through or caused by fire, water, steam, or any repairs, alterations, injury or
accident, or any other cause, to the Premises, to any furniture, fixtures,
Tenant improvements, or other personal property of Tenant kept or stored in the
8
Premises, to adjacent premises, or to other parts of the Building not herein
demised, whether by reason of the negligence or default of the owners or
occupants thereof, or any other person, or otherwise. All property of Tenant
kept or stored in the Building Complex shall be at the sole risk of Tenant. If
Tenant shall obtain risk insurance on any of its property, such insurance shall
permit Tenant to waive any rights of subrogation, and Tenant hereby waives such
rights.
16. INDEMNITY TO LANDLORD. Tenant hereby agrees to indemnify, defend, and save
Landlord harmless of and from all liability, loss, damages, costs or expenses,
including attorneys' fees, on account of injuries to the person or property of
Landlord or of any other tenant in the Building, or to any other person
rightfully in said Building for any purpose whatsoever, except where the
injuries are caused by the negligence or misconduct of Landlord, its agents,
servants or employees.
In addition to the above, Tenant shall at all times keep in force a
comprehensive general combined liability insurance policy providing protection
of at least One Million Dollars ($1,000,000.00) per incident/Two Million Dollars
($2,000,000.00) per year, or such greater amount as may be reasonably required
by Landlord from time to time, against claims and liability for personal injury,
bodily injury, death and property damage arising from the use, ownership,
maintenance, disuse or condition of the Premises, any improvements located on or
appurtenant to the Premises, improvements or adjoining areas or ways.. The
Landlord shall be named as additional insured and protected under the terms and
conditions of said policy as the Landlord of the Premises. The said policy shall
be written by an insurance company licensed to do business in the State of
Colorado and approved by the Landlord, which approval shall not be unreasonably
withheld, with such policy to be non-assessable. All such policies shall name
Landlord as an additional insured. Each such policy shall provide that the same
may not be cancelled or modified without at least thirty (30) days' prior
written notice to Landlord. Tenant shall, at the request of Landlord, deliver
from time to time certificates evidencing that such insurance is in force and
effect. The limits of said insurance shall not, however, limit the liability of
Tenant hereunder.
17. SURRENDER AND NOTICE. Upon the expiration or other termination of the term
of this lease, Tenant shall promptly quit and surrender to Landlord the Premises
broom clean, in good order and condition, ordinary wear and tear and loss by
fire or other casualty (unless caused by the Tenant, its agents, servants,
employees or invitees) excepted, and Tenant shall remove all of its movable
furniture and other effects and such alterations, additions and improvements as
Landlord shall require Tenant to remove pursuant to Paragraph 9. If Tenant fails
to vacate the Premises on a timely basis as required, Tenant shall be
responsible to Landlord for all costs incurred by Landlord as a result of such
failure, including but not limited to, any amounts required to be paid to third
parties who were to have occupied the Premises.
18. FIRE, RESTORATION OF PREMISES. If the Premises, or said Building, shall be
so damaged by fire or other casualty as to render the Premises wholly
untenantable, and if such damage shall be so great that a competent architect,
in good standing, selected by Landlord shall certify in writing to Landlord and
Tenant that the Premises, with the exercise of reasonable diligence, cannot be
made fit for occupancy within one hundred fifty (150) working days from the
happening thereof, then this lease shall cease and terminate from the date of
the occurrence of such damage; and Tenant thereupon shall surrender to Landlord
the Premises and all interest therein hereunder, and Landlord may reenter and
take possession of the Premises and remove Tenant therefrom. Tenant shall pay
rent, duly apportioned, up to the time of such termination of this lease.
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If, however, the damage shall be such that said architect shall certify that the
Premises can be made tenantable within said one hundred fifty (150) day period
from the happening of such damage or other casualty, then, except as hereinafter
provided, Landlord shall repair the damage so done with all reasonable speed.
If the Premises, without the fault of Tenant, shall be slightly damaged by fire
or other casualty, but not so as to render the same untenantable, Landlord,
after receiving notice in writing of the occurrence of the injury, shall cause
the same to be repaired with reasonable promptness.
If the fire or other casualty causing injury to the Premises or other parts of
the Building shall have been caused by the negligence or misconduct of Tenant,
its agents, servants or employees, or by any other person entering upon the
Premises under express or implied invitation of Tenant, such injury shall be
repaired by Landlord at the expense of Tenant.
In case the Building throughout shall be so injured or damaged, whether by fire
or otherwise (though the Premises may not be affected, or if affected, can be
repaired within said one hundred fifty (150) days) that Landlord within sixty
(60) days after the happening of such injury shall decide not to reconstruct or
rebuild the Building, then, notwithstanding anything contained herein to the
contrary, upon notice in writing to that effect given by Landlord to Tenant
within said sixty (60) days, Tenant shall pay the rent properly apportioned up
to such date, this lease shall terminate from the date of delivery of said
written notice and both parties hereto shall be freed and discharged of all
further obligations hereunder.
19. CONDEMNATION. If any portion of the Premises or any portion of the Building
which shall render the Premises untenantable shall be taken by right of eminent
domain or by condemnation or shall be conveyed in lieu of any such taking, then
this lease, at the option of either Landlord or Tenant exercised by either party
giving notice to other of such termination within thirty (30) days after such
taking or conveyance, shall forthwith cease and terminate, and the rent shall be
duly apportioned as of the date of such taking or conveyance. Tenant thereupon
shall surrender to Landlord the Premises and all interest therein under this
lease, and Landlord may reenter and take possession of the Premises or remove
Tenant therefrom. If such taking or conveyance occurs, Landlord shall receive
the entire award or consideration for the lands and improvements so taken.
20. DEFAULT BY TENANT. The occurrence of any of the following shall constitute
an "event of default" by Tenant:
A. Failure to pay rent or any other amounts payable hereunder when due, and such
default shall continue for five (5) days after receipt of written notice from
Landlord; provided, however, Tenant shall not be entitled to more than two (2)
notices of a delinquency in a monetary default during any Lease Year. If
thereafter any rent or other amounts owing hereunder are not paid when due, a
default shall be considered to have occurred even though no notice thereof is
given;
B. Tenant shall vacate or abandon the Premises;
C. If this lease or the estate of Tenant hereunder shall be transferred to or
shall pass to or devolve upon any other person or party except in the manner
herein provided;
D. This lease or the Premises or any part thereof shall be taken upon execution
or by other process of law directed against Tenant, or shall be taken upon or
subject to any attachment at the instance of any creditor or claimant against
Tenant, and said attachment shall not be discharged or disposed of within
fifteen (15) days after the levy thereof;
E. Tenant shall file a petition in bankruptcy or insolvency or for
reorganization or arrangement under the bankruptcy laws of the United States or
under any insolvency act of any state, or shall voluntarily take advantage of
any such law or act by answer or otherwise, or shall be dissolved or shall make
an assignment for the benefit of creditors;
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F. Involuntary proceedings under any such bankruptcy law or insolvency act or
for the dissolution of Tenant shall be instituted against Tenant, or a receiver
or trustee shall be appointed of all or substantially all of the property of
Tenant, and such proceeding shall not be dismissed or such receivership or
trusteeship vacated within sixty (60) days after such institution or
appointment;
Tenant shall fail to take possession of the Premises on the term commencement
date;
Tenant shall fail to perform any of the other agreements, terms, covenants or
conditions hereof on Tenant's part to be performed, and such nonperformance
shall continue for a period of thirty (30) days after notice thereof by Landlord
to Tenant, or if such performance cannot be reasonably had within such thirty
(30) day period, Tenant shall not in good faith have commenced such performance
within such thirty (30) day period and shall not diligently proceed therewith to
completion.
Upon the occurrence of an "event of default", Landlord shall have the right at
its election, then or at any time thereafter either:
(1) To give Tenant written notice of intention to terminate this lease on
the date of such given notice or on any later date specified therein, and
on the date specified in such notice, Tenant's right to possession of the
Premises shall cease and this lease shall thereupon be terminated, except
as to Tenant's liability; or
(2) Without demand or notice, to reenter and take possession of the
Premises or any part thereof, and repossess same as of Landlord's former
estate and expel Tenant and those claiming through or under Tenant, and
remove the effects of both or either, using such force for such purposes as
may be necessary, without being liable for prosecution thereof, without
being deemed guilty of any manner of trespass and without prejudice to any
remedies for arrears of rent or preceding breach of covenants or
conditions. Should Landlord elect to reenter as provided in this
Subparagraph (2), or should Landlord take possession pursuant to legal
proceedings or pursuant to any notice provided for by law, Landlord may,
from time to time, without terminating this lease, relet the Premises or
any part thereof, either alone or in conjunction with other portions of the
Building of which the Premises are a part, in Landlord's or Tenant's name,
but for the account of Tenant. Any reletting under this Section shall be
for such term or terms (which may be greater or less than the period which
would otherwise have constituted the balance of the term of this lease) and
on such conditions and upon such other terms (which may include concessions
of free rent and alteration and repair of the Premises) as Landlord, in its
uncontrolled discretion, may determine, and Landlord may collect and
receive the rents therefor. Landlord shall in no way be responsible or
liable for any failure to relet the Premises, or any part thereof, or for
any failure to collect any rent due upon such reletting. No such reentry or
taking possession of the Premises by Landlord shall be construed as an
election on Landlord's part to terminate this lease unless a written notice
of such intention be given to Tenant. No notice from Landlord hereunder or
under a forcible entry and detainer statute or similar law shall constitute
an election by Landlord to terminate this lease unless such notice
specifically so states. Landlord reserves the right following any such
reentry and/or reletting to exercise its right to terminate this lease by
giving Tenant such written notice, in which event the lease will terminate
as specified in said notice.
If Landlord does not elect to terminate this lease as permitted in Subparagraph
(1) of this article, but on the contrary, elects to take possession as provided
in Subparagraph (2) hereof, Tenant shall pay to Landlord (i) the rent and other
sums as herein provided, which would be payable hereunder if such repossession
had not occurred, less (ii) the net proceeds, if any, of any reletting of the
Premises after deducting all Landlord's expenses in connection with such
reletting, including, but without limitation, all repossession costs, brokerage
commissions, legal expenses, attorneys' fees, expenses of employees, alteration
and repair costs and expenses of preparation for such reletting. If, in
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connection with any reletting, the new lease term extends beyond the existing
term or the premises covered thereby include other premises not part of the
Premises, a fair apportionment of the rent received from such reletting and the
expenses incurred in connection therewith as provided aforesaid will be made in
determining the net proceeds received from such reletting. In addition, in
determining the net proceeds from such reletting, any rent concessions will be
apportioned over the term of the new Lease. Tenant shall pay such amounts to
Landlord monthly on the days on which the rent would have been payable hereunder
if possession had not been retaken and Landlord shall be entitled to receive the
same from Tenant on each such day.
If this lease is terminated pursuant to the provisions of this Paragraph 20,
Tenant shall remain liable to Landlord for damages in an amount equal to the
rent and other sums which would have been owing by Tenant hereunder for the
balance of the term had this lease not been terminated, less the net proceeds,
if any, of any reletting of the Premises by Landlord subsequent to such
termination, after deducting all Landlord's expenses in connection with such
reletting, including, but without limitation, the expenses enumerated above.
Landlord shall be entitled to collect such damages from Tenant monthly on the
days on which the rent and other amounts would have been payable hereunder if
this lease had not been terminated, and Landlord shall be entitled to receive
the same from Tenant on each such day. Alternatively, at the option of Landlord
if this lease is terminated, Landlord shall be entitled to recover forthwith
against Tenant as damages for loss of the bargain and not as a penalty, an
amount equal to the worth at the time of such termination of the excess, if any,
of the amount of rent reserved in this lease for the balance of the term hereof
in excess of the then reasonable rental value of the Premises for the same
period. It is agreed that the "reasonable rental value" shall be the amount of
rental which Landlord can obtain as rent or the remaining balance of the term.
Suit or suits for the recovery of the rent and other amounts and damages set
forth hereinabove may be brought by Landlord from time to time, at Landlord's
election, and nothing herein shall be deemed to require Landlord to await the
date whereon this lease of the term hereof would have expired by limitation had
there been no such default by Tenant, or no such termination, as the case may
be. Each right and remedy provided in this lease shall be cumulative and shall
be in addition to every other right or remedy provided for in this lease or now
or hereafter existing at law or in equity or by statute or otherwise, including
but not limited to, suits for injunctive relief and specific performance. The
exercise or beginning of the exercise by Landlord of any one or more of the
rights or remedies provided for in this lease or now or hereafter existing at
law or in equity or otherwise shall not preclude the simultaneous or later
exercise by Landlord of any or all other rights or remedies provided for in this
lease or now or hereafter existing at law or in equity or otherwise. All costs
incurred by Landlord in connection with collecting any rent and other amounts
and damages owing by Tenant pursuant to the provisions of this lease or to
enforce any provision of this lease, including reasonable attorneys' fees from
the date any such matter is turned over to an attorney, whether or not one or
more actions are commenced by Landlord, shall also be recoverable by Landlord
from Tenant. In the event Landlord incurs any attorney's fees in connection with
the recovery of or any dispute about rental under this Lease, then Tenant shall
pay Landlord's reasonable attorney's fees and costs in connection therewith. If
an action shall be brought under this Lease, or for or on account of any breach
of or to enforce or interpret any of the terms, covenants or conditions of this
Lease, or for the recovery of possession of the demised premises, the prevailing
party shall be entitled to recover from the other party the prevailing party's
reasonable attorney's fees and costs, the amount of which shall be fixed by the
court and shall be made a part of any judgment rendered. This lease shall be
construed and governed under the laws of the State of Colorado.
No failure by Landlord to insist upon the strict performance of any agreement,
term, covenant or condition hereof or to exercise any right or remedy consequent
upon a breach thereof, and no acceptance of full or partial rent during the
continuance of any such breach, shall constitute a waiver of any such breach or
of such agreement, term, covenant or condition. No payment by Tenant, nor
receipt from Landlord of a lesser amount than the amount due hereunder, shall be
deemed to be other than on an account of the earliest stipulated amount due, nor
shall any endorsement or statement on any check or any letter accompanying any
12
check, or payment as rent, be deemed an accord and satisfaction, and Landlord
shall accept such check for payment without prejudice to Landlord's right to
recover the balance of such amount due or pursue any other remedy available to
the Landlord. No agreement, term, covenant or condition hereof to be performed
or complied with by Tenant, and no breach thereof, shall be waived, altered or
modified except by written instrument executed by Landlord. No waiver of any
breach shall affect or alter this lease, but each and every agreement, term,
covenant and condition hereof shall continue in full force and effect with
respect to any other then existing or subsequent breach thereof. Notwithstanding
any termination of this lease, the same shall continue in force and effect as to
any provisions which require observance or performance by Landlord or Tenant
subsequent to such termination.
Nothing in this article shall limit or prejudice the right of Landlord to prove
and obtain as liquidated damages in any bankruptcy, insolvency, receivership,
reorganization or dissolution proceeding, an amount equal to the maximum allowed
by any statute or rule of law governing such a proceeding and in effect at the
time when such damages are to be proved, whether or not such amount be grater,
equal to or less than the amounts recoverable, either as damages or rent,
referred to in any of the preceding provisions of this article.
Notwithstanding anything contained hereinabove in this article to the contrary,
any such proceeding or action involving bankruptcy, insolvency, reorganization,
arrangement, assignment for the benefit of creditors or appointment of a
receiver or trustee set forth above, shall be considered to be an event of
default only when such proceeding, action or remedy shall be taken or brought by
or against the then holder of the leasehold estate under this lease.
If the Tenant shall fail to pay any monthly installment of the rent or any other
charge pursuant to the terms of this Lease within ten (10) business days after
such installment or other charge is due, a late charge equal to one-thirtieth
(1/30th) of the rental or payment then due shall be assessed and shall accrue
for each day beyond said ten (10) days until such rental or payment, including
the late charge, is paid in full. Further, in the event any rents or other
amounts owing hereunder are not paid within said ten (10) day period, Landlord
and Tenant agree that Landlord will incur additional administrative expenses,
the amount of which will be difficult if not impossible to determine.
Accordingly, Tenant shall pay to Landlord an additional one-time late charge for
any such late payment in the amount of five percent (5%) of such payment. Any
amounts paid by Landlord to cure any defaults of Tenant hereunder, which
Landlord shall have the right, but not the obligation to do, shall, if not
repaid by Tenant within five (5) days after demand by Landlord, thereafter bear
interest at the rate of twelve percent (12%) per annum, or the highest rate
permitted by applicable law, whichever is lower, until paid.
21. SUBORDINATION AND ATTORNMENT. This lease, at Landlord's option, shall be
subordinate to any mortgage, deed of trust (now or hereafter placed upon the
Building Complex), ground lease or declaration of covenants (now or hereafter
placed upon the Building Complex) regarding maintenance and use of any areas
contained in any portion of the Building Complex, and to any and all advances
made under any mortgage or deed of trust and to all renewals, modifications,
consolidations, replacements and extensions hereof. Tenant agrees that with
respect to any of the foregoing documents, no documentation, other than this
lease, shall be required to evidence such subordination. If any holder of a
mortgage or deed of trust shall elect to have this lease superior to the lien of
its mortgage or deed of trust and shall give written notice thereof to Tenant,
this lease shall be deemed prior to such mortgage or deed of trust whether this
lease is dated prior or subsequent to the date of said mortgage, deed of trust
or the date of recording thereof. Tenant agrees to execute such documents which
may be required to effectuate such subordination or to make this lease junior to
the lien of any mortgage or deed of trust, as the case may be, and failing to do
so within ten (10) days after written demand, Tenant does hereby make,
constitute and irrevocably appoint Landlord as Tenant's attorney-in-fact and in
Tenant's name, place and stead, to do so. Tenant hereby attorns to all successor
owners of the Building, whether or not such ownership is acquired as a result of
sale, through foreclosure of a deed of trust or mortgage, or otherwise.
13
22. REMOVAL OF TENANT'S PROPERTY. All movable furniture and personal effects of
Tenant not removed from the Premises upon the vacation or abandonment thereof or
upon the termination of this lease for any cause whatsoever shall conclusively
be deemed to have been abandoned and may be appropriated, sold, stored,
destroyed or otherwise disposed of by Landlord without notice to Tenant or any
other person and without obligation to account therefor; and Tenant shall pay
Landlord all expenses incurred in connection with the disposition of such
property.
Tenant hereby conveys to Landlord all of its property situated on the Premises
as security for the payment of all rents and other amounts due or to become due
hereunder, and Tenant shall execute such documents as Landlord may reasonably
require to evidence Landlord's security interest therein. For this purpose, this
lease shall be considered to be a security agreement. Such security interest
shall be prior and superior to any other security interest except a purchase
money security interest. Tenant's proper* shall not be removed from the Premises
without the prior written consent of Landlord, except to the extent such
property, is replaced with an item of equal or greater value (and Landlord's
security interest shall extend over such replacements).
23. HOLDING OVER: TENANCY MONTH TO MONTH. If after the expiration of this lease
Tenant shall remain in possession of the Premises and continue to pay rent,
without any express written agreement as to such holding, then such holding over
shall be deemed and taken to be a holding upon a tenancy from month-to-month,
subject to all the terms and conditions hereof on the part of Tenant to be
observed and performed and at a monthly rent equivalent to two hundred percent
(200%) of the monthly installments paid by Tenant immediately prior to such
expiration, payable in advance on the same day of each calendar month. Such
month-to-month tenancy may be terminated by either party upon ten (10) days'
written notice prior to the end of any such monthly period.
24. PAYMENTS AFTER TERMINATION. No payments of money by Tenant to Landlord after
the termination of this lease, in any manner, or after giving of any notice
(other than a demand for payment of money) by Landlord to Tenant, shall
reinstate, continue or extend the term of this lease or affect any notice given
to Tenant prior to the payment of such money, it being agreed that after the
service of notice or the commencement of a suit or other final judgment granting
Landlord possession of said premises, Landlord may receive and collect any sums
of rent due, or any other sums of money due under the terms of this lease, or
otherwise exercise its rights and remedies hereunder. The payment of such sums
of money, whether as rent or otherwise, shall not waive said notice, or in any
manner affect any pending suit or judgment theretofore obtained.
25. PREMISES NOT READY FOR OCCUPANCY. If Landlord is to remodel the Premises,
and if the Premises are not ready for occupancy on the date upon which the term
hereby demised is to begin, the rent under this lease shall not commence until
the Premises are ready for occupancy, whereupon this lease, and all of the
covenants, conditions and agreement herein contained shall be in full force and
effect; and the expiration of the term hereof shall be postponed for an
equivalent period of time, and the postponement of rent herein provided to be
paid by Tenant for such period prior to the delivery of the Premises to Tenant
ready for occupancy shall be in full settlement for all claims which Tenant
might otherwise have by reason of said Premises not being ready for occupancy on
the date of the beginning of the term as set forth herein. Provided, however, if
Tenant takes possession of all or any part of the Premises prior to the date the
Premises are ready for occupancy, all terms and provisions of this lease shall
apply except for the payment of rent. "Ready for occupancy" as used herein shall
mean the date that Landlord shall have substantially completed any remodeling
work to be performed by Landlord to the extent agreed to in the work letter. The
certificate of the architect (or other representative of Landlord) in charge of
supervising the completion or remodeling of the Premises shall control
conclusively the date upon which the Premises are ready for occupancy, and the
obligation to pay rent begins as aforesaid. In addition to the above, if
Landlord is delayed in delivering the Premises to Tenant due to the failure of a
prior occupant to vacate the same, then, the rent and term shall also be
postponed as hereinabove set forth, and such postponement shall be in full
settlement of all claims which Tenant may otherwise have by reason of the delay
of delivery.
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If, as a result of the postponement of the commencement of the term, the term
would begin other than on the first day of the month, the commencement thereof
shall be further postponed until the first day of the following month, but
Tenant shall pay proportionate rent at the same monthly rate set forth herein
(also in advance) for such partial month and all other terms and conditions of
this lease shall be in force and effect during such partial month. As soon as
the term commences, Landlord and Tenant shall execute an addendum to this lease,
which may be requested by either party, setting forth the exact date of
commencement and expiration of the term hereof.
26. TENANT ESTOPPEL STATEMENT. Tenant further agrees at any time and from time
to time, upon not less than ten (10) days' prior written request by Landlord, to
execute, acknowledge and deliver to Landlord a statement in writing certifying
that this lease is unmodified and in full force and effect (or in full force and
effect as modified, and stating the modifications), that there have been no
defaults thereunder by Landlord or Tenant (or if there have been defaults,
setting forth the nature thereof), the amount of the Minimum Monthly Rent, the
amount of any Tenant security deposit and the date to which the rent and other
charges have been paid in advance, if any. It is intended that any such
statement delivered pursuant to this paragraph may be relied upon by any
prospective purchaser of all or any portion of Landlord's interest herein, or a
holder of any mortgage or deed of trust encumbering the Building Complex.
Tenant's failure to deliver such statement within such time shall be conclusive
upon Tenant (i) that this lease is in full force and effect, without
modification except as may be represented by Landlord, (ii) that there are no
uncured defaults in Landlord's performance, and (iii) that not more than one (1)
month's rent has been paid in advance. Further, upon request, Tenant will supply
Landlord a corporate resolution certifying that the party signing this statement
on behalf of Tenant is properly authorized to do so.
27. MISCELLANEOUS.
A. The term "Landlord" as used in this lease, so far as covenants or obligations
on the part of Landlord are concerned, shall be limited to mean and include only
the owner or owners of the Building in which the Premises are situated at the
time in question, and in the event of any transfer or transfers of the title
thereto, Landlord herein named (and in the case of any subsequent transfers or
conveyances, the then grantor) shall be automatically released from and after
the date of such transfer or conveyance of all liability as respects the
performance of any covenants or obligations on the part of Landlord contained in
this lease thereafter to be performed; provided that any funds in the hands of
Landlord or the then grantor at the time of such transfer, in which Tenant has
an interest, shall be turned over to the grantee, and any amount then due and
payable to Tenant by Landlord or the then grantor under any provisions of this
lease shall be paid to Tenant.
B. This lease shall be construed as though the covenants herein between Landlord
and Tenant are independent and not dependent, and Tenant shall not be entitled
to any setoff of the rent or other amounts owing hereunder against Landlord if
Landlord fails to perform its obligations set forth herein; provided, however,
the foregoing shall in no way impair the right of Tenant to commence a separate
action against Landlord for any violation by Landlord of the provisions hereof
so long as notice is first given to Landlord and any holder of a mortgage or
deed of trust covering the Building Complex or any portion thereof and an
opportunity granted to Landlord and such holder to correct such violation as
provided in Subparagraph F of this paragraph.
C. If any clause or provision of this lease is illegal, invalid or unenforceable
under present or future laws effective during the term of this lease, it is the
intention of the parties hereto that the remainder of this lease shall not be
affected thereby, and it is also the intention of the parties to this lease that
in lieu of each clause or provision of this lease that is illegal, invalid or
unenforceable, there be added as a part of this lease a clause or provision as
similar in terms to such illegal, invalid or unenforceable clause or provision
as may be possible and be legal, valid and enforceable.
D. The caption of each paragraph is added as a matter of convenience only and
shall be considered of no effect in the construction of any provision or
provisions of this lease.
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E. Except as herein specifically set forth, all terms, conditions and covenants
to be observed and performed by the parties hereto shall be applicable to and
binding upon their respective heirs, administrators, executors, successors and
assigns. The terms, conditions and covenants hereof shall also be considered to
be covenants running with the land.
F. If any alleged default on the part of Landlord hereunder occurs, Tenant shall
give written notice to Landlord in the manner herein set forth and shall afford
Landlord a reasonable opportunity to cure any such default. In addition, Tenant
shall send notice of such default by certified or registered mail, postage
prepaid, to the holder of any mortgages or deeds of trust covering the Building
Complex or any portion thereof of whose address Tenant has been notified in
writing, and shall afford such holder a reasonable opportunity to cure any
alleged default on Landlord's behalf. In no event will Landlord be responsible
for any damages incurred by Tenant, including but not limited to, lost profits
or interruption of business as a result of any alleged default by Landlord
hereunder.
G. Tenant and the party executing this lease on behalf of Tenant represent to
Landlord that such party is authorized to do so by requisite action of the board
of directors or partners, as the case may be, and agree upon request to deliver
to Landlord a resolution or similar document to that effect.
H. If there is more than one entity or person which or who are the Tenant under
this lease, the obligations imposed upon Tenant under this lease shall be joint
and several.
I. No act or thing done by Landlord or Landlord's agents during the term hereof,
including, but not limited to, any agreement to accept surrender of the Premises
or to amend or modify this lease, shall be deemed to be binding on Landlord
unless such act or thing shall be by an officer of Landlord or a party
designated in writing by Landlord as so authorized to act. The delivery of keys
to Landlord, or Landlord's agents, employees or officers shall not operate as a
termination of this lease or a surrender of the Premises. No payment by Tenant,
or receipt by Landlord, of a lesser amount than the monthly rent herein
stipulated, shall be deemed to be other than on account of the earliest
stipulated rent, nor shall any endorsement or statement on any check or any
letter accompanying any check, or payment as rent, be deemed an accord and
satisfaction. Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such rent or pursue any other remedy
available to Landlord.
J. Landlord shall have the right at any time to change the name of the Building,
to construct other buildings or improvements in any area designated by Landlord
for use by Tenant's or to change the location, character or make alterations of,
or additions to any of said areas.
K. Notwithstanding anything to the contrary contained herein, Landlord's
liability under this lease shall be limited to its interest in the Building.
L. Tenant acknowledges and agrees that it has not relied upon any statements,
representations, agreements or warranties by Landlord, its agents or employees,
except such as are expressed herein. No amendment or modification of this Lease,
or any approvals or permissions of the Landlord required under this Lease, shall
be valid or binding unless reduced to writing and executed by the parties hereto
in the same manner as the execution of this Lease.
28. AUTHORITIES FOR ACTION AND NOTICE
A. Except as herein otherwise provided, Landlord may act in any matter provided
for herein by its Building Manager or any other person who shall from time to
time be designated in writing.
B. All notices or demands required or permitted to be given to Landlord
hereunder shall be in writing and shall be deemed duly served when deposited in
the United States mail, postage prepaid, certified or registered, return receipt
requested, addressed to Landlord and Landlord's agent at the addresses provided
on page 12 of this Lease or at the most recent address of which Landlord has
16
notified Tenant in writing. All notices or demands required to be given to
Tenant hereunder shall be in writing and shall be deemed duly served when
delivered personally to any officer or manager of Tenant whose office is in the
Building, or when deposited in the United States mail, postage prepaid,
certified or registered, return receipt requested, addressed to Tenant at its
office in the Building. Either party shall have the right to designate in
writing, served as above-provided, a different address to which notice is to be
mailed. The foregoing shall not prohibit notice being given as provided in Rule
4 of Colorado Rules of Civil Procedure, as the same may be amended from time to
time.
29. RULES AND REGULATIONS. It is further agreed that the following rules and
regulations shall be and are hereby made a part of this lease and Tenant agrees
that its employees and agents, or any others permitted by Tenant to occupy or
enter the Premises, will at all times abide by said rules and regulations, to
wit:
A. The sidewalks, entries, passages, corridors, stairways and elevator of the
Building shall not be obstructed by Tenant, or its agents or employees, or used
for any purpose other than ingress and egress to and from the premises.
B. (1) Furniture, equipment or supplies will be moved in or out of the Building
only during such hours and in such manner as may be prescribed by Landlord. The
Landlord shall have the right to approve or disapprove the movers or moving
company employed by Tenant. In the event Tenant's movers damage the elevator or
any part of the Building, tenant shall forthwith pay to Landlord the amount
required to repair said damage.
(2) No safe or article, the weight of which may, in the opinion of Landlord,
constitute a hazard or damage to the Building or its equipment, shall be moved
into the Premises.
(3) Safes and other equipment, the weight of which is not excessive, shall be
moved into, from or about the Building only during such hours and in such manner
as shall be prescribed by Landlord, and Landlord shall have the right to
designate the location of such articles in the Premises.
C. During the entire term of this lease, Tenant shall at its expense, install
and maintain a chair pad to protect the carpeting under all caster chairs.
D. No sign, advertisement or notice shall be inscribed, painted or affixed on
any part of the inside or outside of the Building unless of such color, size and
style and in such place upon or in the Building, as shall be first designated by
Landlord, but there shall be no obligation or duty on Landlord to allow any
sign, advertisement or notice to be inscribed, painted or affixed on any part of
the inside or outside of the Building. A Directory in a conspicuous place, with
names of Tenant's, not to exceed one name per five hundred (500) square feet of
space contained in the Premises, will be provided by Landlord; any necessary
revision in this will be made by Landlord at Tenant's expense, within a
reasonable time after notice from Tenant of the change making the revision
necessary. No furniture shall be placed in front of the Building or in any lobby
or corridor, without the prior written consent of Landlord. Landlord shall have
the right to remove all nonpermitted signs and furniture, without notice to
Tenant, and at the expense of Tenant.
E. Tenant shall not do or permit anything to be done in said Premises, or bring
or keep anything therein which would in any way increase the rate of fire
insurance on the Building or on property kept therein, or constitute a nuisance
or waste, or obstruct or interfere with the rights of other Tenant's, or in any
way injure or annoy them, or conflict with the laws relating to fire, or with
any regulations of the fire department, or with any insurance policy upon the
Building or any part thereof, or conflict with any of the rules or ordinances of
the Department of Health of the City and County where the Building is located.
F. Tenant shall not employ any person or persons other than the janitor of
Landlord for the purpose of cleaning or taking care of the Premises, without the
prior written consent of Landlord. Landlord shall be in no way responsible to
Tenant for any loss of property from the Premises, however occurring, or for any
damage done to Tenant's furniture or equipment by the janitor or any of his
staff, or by any other person or persons whomsoever. The janitor of the Building
may at all times keep a pass key, and he and other agents of Landlord shall at
all times be allowed admittance to said Premises.
G. Water closets and other water fixtures shall not be used for any purpose
other than that for which the same are intended, and any damage resulting to the
same from misuse on the part of Tenant, its agents or employees, shall be paid
by Tenant. No person shall waste water by tying back or wedging the faucets or
in any other manner.
H. No animals shall be allowed in the offices, halls, corridors and elevators in
the Building. No person shall disturb the occupants of this or adjoining
buildings or premises by the use of any radio, sound equipment or musical
instrument or by the making of loud or improper noises.
I. Bicycles or other vehicles shall not be permitted in the offices, halls,
corridors, and elevators in the Building, nor shall any obstruction of sidewalks
or entrances of the Building by such be permitted.
17
J. Tenant shall not allow anything to be placed on the outside of the Building,
nor shall anything be thrown by Tenant, its agents or employees, out of the
windows or doors, or down the corridors, elevator shafts, or ventilating ducts
of shafts of the Building. Tenant, except in case of fire or other emergency,
shall not open any outside window.
K. No additional lock or locks shall be placed by Tenant on any door in the
Building unless written consent of Landlord shall first have been obtained. A
reasonable number of keys to the Premises and to the toilet rooms if locked by
Landlord will be furnished by Landlord, and neither Tenant, its agents or
employees shall have any duplicate keys made. At the termination of this
tenancy, Tenant shall promptly return to Landlord all keys to offices, toilet
rooms or vaults.
L. No window shades, blinds, screens, draperies or other window coverings will
be attached or detached by Tenant without Landlord's prior written consent,
tenant agrees to abide by Landlord's rules with respect to maintaining uniform
curtains, draperies and/or linings at all windows and hallways.
M. No awnings shall be placed over the windows except with the prior written
consent of Landlord.
N. If any Tenant desires telegraphic, telephonic or other electric connections,
Landlord or its agents will direct the electricians as to where and how the
wires may be introduced, and without such directions, no boring or cutting for
wires will be permitted. Any such installation and connection shall be made at
Tenant's expense.
O. Tenant shall not install or operate any steam or gas engine or boiler, or
carry on any mechanical business in the Premises; the use of gas or flammable
liquids for heating, lighting or any other purpose is expressly prohibited.
Explosives or other articles deemed extra hazardous shall not be brought into
the Building Complex.
P. Any painting or decorating as may be agreed to be done by and at the expense
of Landlord shall be done during regular weekday working hours; should Tenant
desire such work on Saturdays, Sundays, holidays or outside of regular working
hours, Tenant shall pay for the extra costs thereof.
Q. Except as permitted by Landlord, Tenant shall not xxxx upon, paint signs
upon, cut, drill into, drive nails or screws into, or in any way deface the
walls, ceilings, partitions or floors of the Premises or of the building, and
any defacement, damage or injury caused by Tenant, its agents or employees,
shall be paid for by Tenant.
R. Tenant shall not place this Lease or any memoranda thereof of record with the
Clerk and Recorder of the City and County of Denver or in any other public
record.
S. Tenant agrees that Landlord may amend, modify, delete or add new and
additional rules and regulations to the use and care of the Premises and the
Building of which the Premises are a part. Tenant agrees to comply with all such
rules and regulations upon notice to Tenant from Landlord thereof. In the event
of any breach of any rules and regulations herein set forth or any amendments,
modifications or additions thereto, Landlord shall have all remedies in this
lease provided for in the event of default by Tenant.
30. BROKERS. Tenant warrants that it has had no dealings with any real estate
broker or agents in connection with the negotiation of this Lease excepting only
Xxxxxxx Xxxx Commercial Real Estate and it knows of no other real estate broker
or agent who is entitled to a commission in connection with this Lease and shall
defend, indemnify and hold Landlord harmless from any liability or claim,
including attorney's fees in connection with brokerage fee claims arising
through Tenant from any other broker.
31. Time is of the essence hereof, and unless waived by Landlord (which it shall
have the right, but not the obligation to do), this lease is contingent upon
execution and delivery by Tenant to Landlord no later than 5:00 P.M. September
15, 2005.
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32. If for any reason Landlord delivers the Premises after the commencement
date, rental for the interim period between the commencement date and actual
date of delivery shall be prorated based upon the actual number of days in such
period. The Lease shall not be void or voidable in the event of a late delivery
of the Premises by Landlord, nor shall Landlord be liable to Tenant for any loss
or damage therefrom. Tenant's inability or failure to take possession of the
Premises on the commencement date, or such later date that Landlord delivers the
Premises, shall not delay the commencement of the term of this Lease or Tenant's
obligation to pay rent hereunder. No earlier or later delivery or taking
possession of the Premises shall change the termination date of this Lease.
33. Landlord agrees to provide Tenant use of two (2) reserved parking spaces
during the term of this Lease at a rate of $35.00 per month per space. The
location of the parking spaces shall at all times be determined by the Landlord
and said parking lot shall be owned and controlled by the landlord. Landlord
shall not be responsible or liable for any damage that may occur to Tenant's
property in the use of said parking facility.
34. Tenant shall pay Landlord as minimum monthly rent as follows:
October 1, 2005 through September 30, 2006 $1427.71 per month
October 1, 2006 through September 30, 2007 $1468.50 per month
October 1, 2007 through September 30, 2008 $1488.90 per month
Tenant agrees to prepay rent and parking charges for the period October 1, 2005
through September 30, 2006 in the sum of $17972.52 upon execution of this Lease.
IN WITNESS WHEREOF, the parties hereto have caused this lease to be
executed the day and year first above-written.
Tenant: GOLD RESOURCE CORPORATION Landlord: THE ROLLNICK BUILDING
/s/ Xxxxx X. Xxxx /s/ Xxxxxx X. Xxxx
---------------------------------- ----------------------------------
Xxxxx X. Xxxx, Vice President
GUARANTY
FOR VALUE RECEIVED, and in consideration of the giving of the within lease, the
undersigned guarantees to the Landlord, its successors and assigns, the full
performance and observance of all the convenants, conditions and agreements
therein provided to be performed and observed by the Tenant, without requiring
any notice of a nonpayment, nonperformance or nonobservance, or proof of notice
or demand whereby to charge the undersigned therefor, nor shall failure of the
Landlord to enforce its right against the Tenant or concessions made by the
Landlord to the Tenant affect the liability hereunder.
Dated Denver, Colorado, September ___, 2005.
/s/ Xxxxxxx X. Xxxx
---------------------------------
Xxxxxxx X. Xxxx
Address of Landlord's agent:
Xxxxxxx Xxxx Commercial Real Estate
000 X. Xxxxxxxxx Xxxx., Xxxx. 0-000
Xxxxxxxx, XX 00000
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Exhibit A
"PREMISES"
000 XXXXXXXXX XXXXXX
XXXXX 000
XXXXXX, XXXXXXXX 00000
979 SQUARE FEET
[DRAWING OF OFFICE SPACE OMITTED]
Exhibit B
1. Landlord agrees to provide the following tenant improvement work to the
Premises at Landlord's sole cost and expense:
A. Re-paint entire Premises (one color paint);
B. Remove existing carpet and base and install new building standard
carpet and base;
2. Other than those items listed above, Tenant accepts the Premised in its
as-is condition with no obligation by Landlord to perform any tenant
improvement work.
