GROUND LEASE AND AGREEMENT
Between
ARAPAHOE COUNTY PUBLIC AIRPORT AUTHORITY
and
PINECREST ENTERPRISES,LTD.
Date: November 1, 1994
TABLE OF CONTENTS
I. DESCRIPTION OF PREMISES..................................... 5
II. TERM........................................................ 5
III. RENT........................................................ 5
A. Calculation......................................... 5
X. Xxxxx income........................................ 7
C. Additional Rent..................................... 7
D. Payment............................................. 8
E. Net Return.......................................... 8
F. Delinquency......................................... 8
G. Place and Manner of Payments........................ 8
IV. IMPROVEMENTS................................................ 9
A. Development Plans................................... 9
B. Building Permit..................................... 9
C. Construction Time................................... 9
D. Construction Standards.............................. 9
E. Use Restrictions................................... 10
F. Mechanic's and Other Liens......................... 10
V. MAINTENANCE AND CONSTRUCTION OBLIGATIONS .................. 11
A. Maintenance........................................ 11
B. Removal of Waste................................... 11
VI. RAZE, REMOVE, REBUILD...................................... 11
A. Consent............................................ 11
B. Timing............................................. 12
C. Interior Improvements.............................. 12
VII. DIVISION................................................... 12
VIII. RIGHT OF ENTRY..................................................... 12
IX. PAYMENT OF TAXES AND OTHER CHARGES......................... 13
A. Payment............................................ 13
B. Proration, Installments............................ 13
C. Direct Payment..................................... 14
D. Apportionment...................................... 14
E. Contest............................................ 14
X. INDEMNIFICATION............................................ 15
A. Lessee's Indemnification........................... 15
B. Authority's Indemnification........................ 15
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XI. INSURANCE................................................... 15
A. Public Liability and Property Damage................ 15
B. All Risk............................................ 16
C. Rent Insurance...................................... 16
D. Construction Insurance.............................. 16
E. Policies............................................ 16
F. Mutual Subrogation.................................. 17
XII. HAZARDOUS MATERIAL.......................................... 17
A. Lessee Obligations.................................. 17
B. Defined............................................. 18
XIII. DAMAGE OR DESTRUCTION ...................................... 18
A. Notice.............................................. 18
B. Trust............................................... 19
C. Proceeds............................................ 19
D. Payment to Authority................................ 19
E. Option.............................................. 20
F. Lessee Liability.................................... 20
XIV. WAIVER...................................................... 21
XV. REMOVAL OF EQUIPMENT........................................ 21
XVI. SURRENDER AND HOLDING OVER.................................. 21
XVII. INCONVENIENCE DURING CONSTRUCTION........................... 21
XVIII. SUBLETTING, ASSIGNMENT AND MORTGAGE......................... 22
A. Sublet.............................................. 22
B. Assignment.......................................... 23
C. Mortgage............................................ 23
D. New Lease........................................... 24
XIX. AUTHORITY'S REMEDIES AND BREACH............................. 24
A. Remedies............................................ 24
B. Event of Default.................................... 25
C. Mortgagee Notice.................................... 26
XX. ASSIGNMENT OF RENTS ........................................ 27
A. Assignment of Rents................................. 27
B. Right of Entry...................................... 27
XXI. AUTHORITY'S RIGHT TO PERFORM LESSEE'S COVENANTS............. 27
XXII. ESTOPPEL CERTIFICATES....................................... 28
A. Lessee Certificates................................. 28
B. Authority Certificate............................... 28
XXIII. NOTICES.................................................... 28
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XXIV. ACCEPTANCE OF Premises..................................... 29
XXV. WARRANTY OF TITLE . ....................................... 29
XXVI. CONDEMNATION............................................... 29
A. Termination........................................ 29
B. Amendment of Lease................................. 30
C. Award.............................................. 30
D. Arbitration........................................ 30
E. Sublease........................................... 30
XXVII. EASEMENTS.................................................. 30
XXVIII. ARBITRATION................................................ 31
XXIX. ATTORNEYS' FEES............................................ 31
XXX. ADDITIONAL LEASE PROVISIONS................................ 32
A. Observance of laws................................. 32
B. Codes.............................................. 32
C. Airport Development................................ 32
D. Authority's Rights................................. 32
E. Subordination...................................... 32
F. Representations and Warranties..................... 32
G. Exclusive Right.................................... 32
H. Executive Order.................................... 33
I. Affirmative Action Program......................... 33
J. Impossibility...................................... 34
XXXI. QUIET POSSESSION........................................... 34
XXXII. GENERAL.................................................... 34
A. Captions........................................... 34
B. Executed Leases.................................... 34
C. Time of Essence.................................... 34
D. Invalidity......................................... 35
E. Mortgage........................................... 35
F. Fair Meaning....................................... 35
G. Construction....................................... 35
H. Modification and Merger............................ 35
I. Memorandum......................................... 35
J. Binding Effect..................................... 35
K. Remedies........................................... 36
L. Good Faith......................................... 36
M. Consent............................................ 36
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GROUND LEASE AND AGREEMENT
This Lease, made and entered into effective this 1st day of November,
1994, by and between ARAPAHOE COUNTY PUBLIC AIRPORT AUTHORITY, hereinafter
referred to as "Authority", and PINECREST ENTERPRISES, LTD., hereinafter
referred to as "Lessee."
W I T N E S S E T H:
I. DESCRIPTION OF PREMISES
Upon and subject to the terms and conditions hereinafter set forth,
Authority leases to Lessee and Lessee rents from Authority that certain real
property located in the County of Arapahoe, State of Colorado, described more
particularly on Exhibit A all attached hereto, made a part hereof and
incorporated herein by reference, together with all rights of way, licenses, or
easements now or hereafter belonging or pertaining to any of the foregoing, and
all right, title and interest of Authority, and all buildings and other
improvements now located on the Premises (all of the foregoing are sometimes
hereinafter referred to as "demised premises" or "leased premises").
II. TERM.
The term of this Lease shall be for a period of twenty (20) years,
commencing on the 1st day of November, 1994, ("Lease Commencement Date"), and
terminating on the 31st day of October, 2014. At the option of Lessee the term
may be extended twice for an additional ten (10) years each time until the 31st
day of October, 2034, approved by the Federal Aviation Administration.
Possession of the demised premises shall be delivered by Authority to Lessee on
the date of the commencement of the lease term as specified aforesaid.
III. RENT
A. Calculation. As consideration for Authority's entering into this Lease,
Lessee shall pay to Authority, without notice or demand, a net annual rent
determined as follows:
(1) Five hundred and no/100 Dollars ($500.00) per month,
commencing from the date that Authority's Board of Commissioners has approved
this Lease, the Federal Aviation Administration has set forth in writing that
it has no objection, subject to conditions, to the development plan and the
lighting plan, and the Arapahoe County Planning Commission has given its
approval pursuant to a Location and Extent Hearing through and including the
day prior to the pre-construction meeting.
(2) Fifteen hundred and no/100 dollars ($1,500.00) per month
effective from date of pre-construction meeting through and including the day
prior to initial opening which is the date that Lessee first receives any Gross
Income as hereinafter defined.
(3) Fifteen hundred and no/100 Dollars ($1,500.00) per month
plus three percent (3%) of the Gross Income received by Lessee during the
period commencing the date of the initial opening and through and including May
31, 1995 ("Initial Gross Income").
(4) Notwithstanding the foregoing, commencing the date either
the teeing areas, practice greens, or putting course open or June 1, 1995,
whichever occurs first, ten cents ($.10) per
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square foot per year for Lot 22 K, (which consists of 225,291 square feet) plus
two hundred and no/100 dollars ($200.00) per acre per year for the Venues
(which consists of 30.94 acres) to be prorated and payable monthly on the first
(1st) day of each month in advance commencing June 1, 1995, through and
including September 30, 1995. Further, three percent (3%) of the Gross Income
received by Lessee during the period commencing June 1, 1995 and terminating
September 30, 1995 ("Interim Gross Income") shall be payable by Lessee on or
before December 31, 1995. On or before June 1, 1996, Lessee shall furnish to
Authority a true, correct and complete statement of all Initial Gross Income
and Interim Gross Income received by Lessee, certified to Authority by an
officer of the Lessee and accompanied by Lessee's federal income tax return.
Upon Authority's written request Lessee shall make available to Authority at
Lessee's office in Parker, Colorado, Lessee's books and records which provided
the basis for computation of the Interim Gross Income. If no such request for
confirmation of, and examination of the Lessee's books and records pertaining
to, Initial Gross Income and Interim Gross Income is made by Authority on or
before June 1, 1997, Authority shall be deemed to have conclusively accepted
Lessee's statement of Initial Gross Income and Interim Gross Income. If
Authority makes an independent audit of Lessee's books and records and it is
determined that the amount of Initial Gross Income and Interim Gross Income
varies to Authority's detriment by more than five percent (5%) from that
reflected in Lessee's statement, Lessee shall pay the total cost of such
independent audit, otherwise the cost of such audit shall be borne by
Authority. If such independent audit shows a deficiency in the payment of
Initial Gross Income and Interim Gross Income, Lessee shall forthwith pay such
deficiency. If such independent audit shows an overpayment of Initial Gross
Income and interim Gross Income, Authority shall forthwith return to Lessee
such overpayment.
(5) Commencing October 1, 1995, ten cents ($.10) per square
foot per year for Lot 22K, with an increase at the compounded rate of three
percent (3%) per annum, effective October 1 of each Lease Year, commencing
October 1, 1996, and two hundred and no/100 dollars ($200.00) per acre per year
for the Venues with an increase at the compounded rate of three percent (3%)
per annum effective October 1 of each Lease Year, commencing October 1, 1996
("Basic Rent"), all as shown on Exhibit B attached hereto, plus a minimum of
fifteen thousand and no/100 ($15,000.00) if the Gross Income, measured from
October 1 to September 30 of each year until the lease term expires ("Annual
Gross Income") is up to five hundred thousand and no/100 dollars ($500,000.00),
plus four percent (4%) of the Annual Gross Income greater than five hundred
thousand and no/100 dollars ($500,000.00) and up to one million and no/100
dollars ($1,000.000.00) and plus five percent (5%) of the Annual Gross Income
greater than one million and no/100 dollars ($1,000,00.00) (collectively
defined as "Percentage Rent"). The Basic Rent shall be payable quarterly in
advance, i.e. on or before October 1, January 1, April 1, and July 1 of each
lease year. The lease year commences October 1 and ends September 30 ("Lease
Year"). Percentage Rent is payable within sixty (60) days after the end of each
Lease Year. By the 1st of June following the end of each Lease Year, Lessee
shall furnish to Authority a true, correct and complete statement of all Annual
Gross Income received by Lessee for the immediately preceding Lease Year
certified to Authority by an officer of the Lessee and accompanied by Lessee's
federal income tax return (the "Year End Financial Statement"). Upon
Authority's written request, Lessee shall make available to Authority, at
Lessee's offices in Parker, Colorado Lessee's books and records which provided
the basis for such computation of Percentage Rent. If no such request for
confirmation and examination of Lessee's books and records is made by Authority
within three (3) years following any such annual payment, Authority shall be
deemed to have conclusively accepted Lessee's statement thereof. If Authority
makes an independent audit of Lessee's books and records and it is determined
that the amount of Annual Gross Income varies, to Authority's detriment, by
more than five percent (5%) from that reflected in any such Year End Financial
Statement submitted by Lessee, then Lessee shall pay the total cost of such
independent audit, otherwise, the cost of such audit shall be borne by
Authority. If such independent audit shows a deficiency in the payment of
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Percentage Rent, Lessee shall forthwith pay such deficiency. If such independent
audit shows an overpayment of Percentage Rent, Authority shall forthwith return
to Lessee such overpayment.
X. Xxxxx income. "Gross Income" shall include Initial Gross Income.
Interim Gross Income and Annual Gross Income and as used herein shall be
computed on a cash basis and shall mean all income, rents, profits, revenue and
all other amounts received by Lessee during the Lease Year to which such
payment pertains and which are in any way attributable to or arise out of the
leased premises and any improvements now or hereafter existing thereon less any
amounts received by Lessee during the year in question which pertain to a
subsequent period.
C. Additional Rent. Lessee shall also pay, from time to time, as
provided in this Lease as additional rent ("Additional Rent") all other
amounts, liabilities and obligations which Lessee herein assumes or agrees to
pay. In the event of any failure on the part of the Lessee to pay any
Additional Rent, Authority shall have the rights, powers and remedies provided
for in this Lease. In case any person to whom the Lessee endeavors to pay
Additional Rent refuses to accept the same, Lessee shall thereupon give written
notice of said act to Authority, and shall pay such Additional Rent directly to
Authority at the place where the Basic Rent is then payable, and such payment
shall operate as a complete discharge of Lessee's obligation to make such
payment. Authority agrees with respect to any such payment to pay the same over
to the person or party for whom it was intended.
D. Payment. The Basic Rent shall be payable in advance at the times
set forth above. The Percentage Rent shall be payable at the times set forth
above. The Basic Rent, Percentage Rent and all other sums payable to Authority
hereunder shall be payable in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public debts, and shall be paid to Authority at Authority's address set forth
hereinafter, or at such other address as Authority may. from time to time,
designate by written notice to Lessee in accordance with the provisions hereof.
E. Net Return. It is intended that all Basic Rent and Percentage Rent
provided for in this Lease shall be an absolute net return to Authority, and
shall be paid to Authority without set off, counterclaim, abatement or
reduction. Accordingly, all costs, charges, expenses, impositions, taxes and
obligations relating to either the demised premises or any buildings, equipment
or improvements hereafter situated on the demised premises, including, but not
limited to, costs of maintenance, repairs, replacements, renovation,
remodeling, razing, removal, alterations, insurance, taxes, assessments and all
other costs, charges, expenses and obligations of any kind, now or at any time
imposed upon or related to the demised premises or buildings, equipment, or
improvements at any time on the demised premises, shall, during the term
hereof, be paid for by Lessee exclusively.
F. Delinquency. The payments set forth in paragraphs A, B and C of
this paragraph III must be kept current. Interest shall be charged on any
payment overdue one (1) to thirty (30) days at the rate of one percent (1%) per
month prorated for the number of days late and on any payment overdue more than
thirty (30) days at the rate of one and one-half percent (1 1/2%) per month
prorated for the number of days late. Such proration shall be based on the date
of receipt of payments by Authority.
G. Place and Manner of Payments. In all cases where Lessee is required
by this Lease to pay any rentals, rates fees or other charges or to make other
payments to Authority, such payments shall be made at the office of the
Executive Director or at such other place as Authority may hereafter designate
by notice in writing to Lessee and shall be made in legal tender of the United
States and any
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check shall be received by Authority subject to collection. Lessee agrees to pay
any bank charges made for collection of such checks.
IV. IMPROVEMENTS
A. Development Plans. Development Plans will be prepared and processed
in accordance with Authority's Development Guidelines.
B. Building Permit. Lessee shall apply for the necessary building
permits prior to any construction of improvements.
C. Construction Time. Lessee shall fully complete the construction of
at least one improvement, which improvement will generate Gross Income, not
better than two (2) years from the Lease Commencement Date.
D. Construction Standards.
(1) The improvements to be constructed on the leased premises
shall be accomplished in a good and xxxxxxx like manner, in accordance with the
approved Location and Extent drawings and in accordance with the Arapahoe
County Building Code "Pursuant to a Building Permit to be obtained from the
Arapahoe County Building Department) and according to the customary terms and
conditions thereof and, in a manner consistent with State and Federal
requirements and subject to the reasonable requirements of Authority which are
of general applicability.
(2) The Lessee shall include in all construction contracts
entered into by it in connection with the construction work aforesaid, a
provision requiring the contractor to indemnify, release and save harmless
Authority, its Commissioners, officers, representatives, agents and employees
from and against any and all loss of or damage to property, or injuries to, or
death of, any person or persons, and from any and all claims, costs, damages,
suits, causes of action, and judgments, including Workmen's Compensation
Claims, in any way resulting from, or arising out of, directly or indirectly,
such contractor's operations in connection herewith, and the contractor's use
or occupancy of the leased premises, and of any portion of Centennial Airport,
and including acts and omissions of officers, employees, representatives,
agents, servants, invitees, patrons, customers, contractors, subcontractors,
successors, assigns, sublessees and suppliers of the contractor, as well as all
other persons doing business with the contractor; provided, however, that
Authority shall give the contractor prompt and timely notice of any claim made
against Authority which may result in a judgment against Authority because of
such injuries or damages, and shall deliver to the contractor all papers,
notices, documents, summonses and other legal process served upon Authority or
its agents provided further, that the contractor and its insurer, or either of
them shall have the xxxxx.xx compromise and defend all claims, actions, suits
and proceedings to the extent of the contractor's interest therein; and,
provided further, contractor need not indemnify, release and save harmless
Authority against loss of property, or injury to or death of persons, caused by
the negligence of Authority, its directors, agents and employees. The Lessee
shall require the contractor to furnish liability insurance in such amounts as
may be required by Authority. The Lessee shall also include in any construction
contract such reasonable provisions as may be generally required by Authority
relating to the operations of the contractor on Centennial Airport. Lessee
shall provide to Authority a copy of all construction contracts let in
connection with the leased premises.
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(3) When the improvements have been completed, the Lessee
shall deliver to Authority a certificate of an architect or structural engineer
licensed to practice in the State of Colorado not regularly employed by either
party hereto, and familiar with the construction of said improvements,
certifying that the improvements have been constructed in accordance with the
approved Location and Extent drawings and certifying that in the engineer's or
architect's opinion such improvements have an expected useful life of a
duration which is customary for such improvements under similar conditions and
circumstances. As Built Drawings will be submitted pursuant to Authority's
Development Guidelines.
(4) Lessee shall provide to Authority for each improvement to
be constructed upon the leased Premises payment and performance bonds for that
improvement. generally in the forms required by a construction lender.
E. Use Restrictions. The leased premises and the improvements to be
constructed thereon shall be utilized for golf range related activities
consistent with those uses specifically allowed by the approved Location and
Extent drawings.
F. Mechanic's and Other Liens.
(1) Lessee covenants and agrees to keep the leased premises
free and clear of and from any and all mechanics and other liens and to at ail
times promptly and fully pay and discharge any and all lawful claims upon which
any such liens may or could be based, and to save and hold Authority and the
leased premises free and harmless of and from any and all such liens and
claims. Lessee covenants and agrees to give Authority written notice not less
than ten (10) days in advance of the commencement of any construction,
alteration, addition, improvements or repair to the leased premises costing in
excess of Fifty Thousand Dollars ($50,000.00) in order that Authority may post
appropriate notices of Authority's non-responsibility.
(2) If Lessee desires to contest any lien of the nature set
forth herein, Lessee shall notify Authority of its intention so to do within
twenty (20) days after the filing of such lien. In the event of any such
contest, Lessee shall protect and indemnify Authority against all loss, cost,
expense and damage resulting therefrom. Lessee shall also cause such lien to be
released by obtaining and furnishing a bond in accordance with applicable
Colorado Revised Statutes, 1973, as amended, or depositing with Authority such
other security as Authority may reasonably require to insure payment of the
amount of the claim, together with interest, costs (including attorneys' fees),
and penalties thereon. In the event Lessee contests any such lien and sustains
an adverse determination, the Lessee shall nevertheless not be in default under
the terms of the Lease if the amount it has deposited with Authority is
sufficient to satisfy the indebtedness or if it has satisfied the indebtedness
(together with interest, penalties and costs) within ten (10) days after actual
final determination of the court involved.
V. MAINTENANCE AND CONSTRUCTION OBLIGATIONS
A. Maintenance. Lessee, at its expense shall keep the improvements,
including water, sewer and waste water drain lines, fences, auto/pedestrian
access ways, trench drains and utilities. upon and within the leased premises
in good repair and maintenance, and in a safe, sanitary, orderly and sightly
condition. Such improvements shall be at all times maintained in compliance
with the Arapahoe County Building Code and other reasonable and generally
applicable regulations of Authority, as may be adopted, amended or modified
from time to time. If Lessee fails to keep the leased premises as required
herein to the satisfaction of Authority, Authority shall notify Lessee of the
requirement for such repairs
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and if such repairs are not made within a reasonable time, then Authority may
make such repairs and maintenance without liability to Lessee for any loss or
damage that may accrue to Lessee's property or business by reason thereof, and
upon completion thereof. Lessee shall pay to Authority the cost of said repairs
and maintenance within ten (10) days from receipt of written demand therefor.
B. Removal of Waste. Lessee shall not permit rubbish, debris, waste
materials or anything obnoxious or detrimental to safety or health or likely to
create objectionable odors, a fire hazard, or conducive to deterioration, to
remain on any part of the leased premises or to be disposed of improperly.
VI. RAZE, REMOVE, REBUILD
A. Consent. Lessee may, after first obtaining Authority's prior
written consent, raze and remove all or portions of the improvements situated
upon the leased premises for the purpose of constructing or reconstructing
replacement improvements on the leased premises provided that the use to which
such replacement improvements are intended to be put is consistent with the
provisions of paragraph IV E limiting Lessee's use of the leased premises; and
further provided, that in no event shall Authority be required to grant such
approval until Lessee shall have submitted to Authority development plans
pursuant to paragraph IV A and the Authority's Development Guidelines.
B. Timing. In the event that Lessee, after having obtained necessary
prior written approvals of Authority pursuant to paragraph VI A, shall raze all
or any portion of the improvements presently existing or subsequently
constructed on the leased premises, and Lessee shall fail to commence the
reconstruction of said improvements within twelve (12) months from the dab
razing was completed, Authority shall have the option to terminate this Lease
upon sixty (60) days' prior written notice to Lessee. Said option may be
exercised at any time by Authority from and after the expiration of said twelve
(12) month period until the date on which Lessee shall have actually commenced
construction of said replacement improvements. If said option is exercised in
accordance with this paragraph, this Lease shall terminate on the date set
forth in said written notice of termination (which date shall not be less than
sixty (60) days from the case of such notice) unless Lessee shall have
commenced the construction of said replacement improvements and thereafter be
continuously pursuing the completion of same, prior to the date set for
termination in said notice.
C. Interior Improvements. The provisions of paragraphs VI A and B
above notwithstanding, Lessee reserves the right, without having first obtained
the written consent of Authority to remove, replace and modify interior
improvements as Lessee may deem necessary for purposes of renewing, extending
and/or modifying the terms of an existing occupancy sublease or performing
required covenants under an existing occupancy sublease, or for the purpose of
re-leasing the based premises or portions thereof to Occupancy Tenants,
provided that, and only if, such removal, replacement or modification does not
alter or otherwise affect the basic structural integrity of the improvements.
VII. DIVISION
Notwithstanding anything in this Lease to the contrary, Lessee may
divide the property on Exhibit A into two (2) or more parcels for purposes of
development, assignment, or mortgage. In conjunction with such division, and
upon the written request of Lessee, Lessee and Authority shall execute new
leases identical in terms to this Lease. Said new leases shall correspond in
number to the number of parcels into which the property described on Exhibit A
is divided, each new lease for one (1) parcel.
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VIII. RIGHT OF ENTRY
Authority and its authorized agents may enter upon the leased premises
at any reasonable time and for any purpose necessary, incidental to, or
connected with the performance of the Lessee's obligation under this Lease or
in the exercise of its function as Authority pursuant to this Lease or any
federal, state or local law, regulations, or directive, including but not
limited to entry for the purpose of ensuring Authority's and Lessee's
compliance with the FAA's letter of August 2, 1994, a copy of which is attached
hereto as Exhibit C and incorporated herein by reference.
IX. PAYMENT OF TAXES AND OTHER CHARGES
A. Payment. Commencing on the Lease Commencement Date and continuing
for the entire term of this Lease as part of the consideration of this Lease
and as additional rent hereunder, Lessee covenants and agrees to pay and
discharge or cause to be paid and discharged promptly as the same becomes due
and before delinquency, all taxes, assessments, charges, license fees, levies,
excise tax or imposts, whether general or special, ordinary or extraordinary,
imposed by any governmental or quasi-governmental authority pursuant to law
directly as a result of the ownership of the leased premises o- the
improvements located thereon which may be levied, assessed, charged or imposed,
or may be or become a lien or charge upon the leased premises, or any part
thereof or upon the leasehold estate hereby created, or upon Authority solely
by reason of its ownership of the leased premises, including without
limitation, any license or privilege tax or fee measured solely by the rentals
received by Authority hereunder (heretofore and hereinafter termed an
"Imposition"). If at any time during the term of this Lease or any extension
thereof, the methods of taxation prevailing at the commencement of the term
hereof shall be so altered so that in lieu of any Imposition described in this
paragraph there shalt be levied, assessed or imposed an alternate tax, however
designated, such alternate tax shall be deemed an Imposition for the purposes
of this Article and Lessee shall pay and discharge such Imposition as provided
by this paragraph.
B. Proration, Installments. Any Impositions above required to be paid
by Lessee, which shall relate to a fiscal year during which the term of this
Lease shall commence or terminate, shall be prorated between Authority and
Lessee as of the date of such commencement or termination. Lessee shall pay all
assessments whether general, special, ordinary or extraordinary, which are
assessed against the leased premises during the term of this Lease or any
extension thereof. If the law expressly permits the payment of such assessment
in installments, Lessee may utilize the permitted installment method, but shall
pay each installment coming due during the term hereof with any interest
thereon before delinquency. If Lessee shall have been permitted or elected to
have such assessments made payable in installments over a period of time which
extends beyond the date this Lease expires or otherwise terminates the entire
unpaid balance of such assessments assessed against the leased premises during
the term hereof shall be paid by Lessee at least one (1) year prior to the
expiration of the term hereof or prior to any earlier termination of this Lease
by depositing such unpaid balance in cash with Authority. However, where an
assessment is not assessed against the leased premises until the last five (5)
years of the term set forth in paragraph 11 above, then Lessee may elect to
have such assessments made payable in installments which extend beyond the date
this Lease expires, and Authority shall be responsible for all installments due
following the expiration of this Lease.
C. Direct Payment. Lessee shall make all payments of all Impositions
directly to the charging governmental entity before delinquency and before any
fine, interest or penalty shall become due or be imposed by operation of law
for their nonpayment. If the law expressly permits the payment
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of any Imposition in installments, Lessee may, at Lessee's option, utilize the
permitted installment payment method, but shall pay each installment with any
interest before delinquency.
D. Apportionment. In the event that the leased premises are not
separately taxed or assessed, then, in that event, the Imposition as levied
shall be apportioned between the leased premises and such other areas with
which it is assessed in such manner that Lessee shall pay only an equitable
proportion of any Imposition.
E. Contest. Lessee shall have the right to contest or review by
appropriate legal or administrative proceedings, or in such other manner as
Lessee may desire, any tax, lien, assessment, imposition or other charge or
levy which Lessee is required to pay as additional rental pursuant to the
provisions of this Article IX. Any such contest or other proceeding shall be
conducted solely at Lessee's expense and free of expense to Authority. Lessee
shall protect and indemnify Authority against any and all loss, cost, expense
or damage resulting from such contest or other proceeding and shall obtain and
furnish Authority with a bond to protect Authority's interest as may be
permitted under the laws of the State of Colorado or the governmental agency
involved in an amount satisfactory to Authority, but not more than the amount
contested and all penalties. interest and costs in connection therewith and
shall protect and indemnify Authority as herein required. At the request of
Lessee, Authority shall join in any contest or other proceedings which Lessee
may desire to bring pursuant to this paragraph provided, however, Lessee shall
pay all of Authority's costs and expenses arising out of such joinder. Within
ten (10) days after the final determination of the amount due from Lessee for
such tax, assessment, charge or other levy, Lessee shall pay the amount so
determined to be due, together with all costs, expenses and interest. In the
event that Lessee shall desire to contest or otherwise review by appropriate
proceedings any tax, assessment, charge or other levy which Lessee is required
to pay as additional rental pursuant to the provisions of this Article IX prior
to the payment thereof. Lessee shall. at least ten (10) days prior to the
delinquency of such tax, assessment, charge or buy, give to Authority written
notice of its intention to contest; and after such notice Lessee shall not be
in default hereunder and Authority shall not satisfy and discharge such tax,
assessment, charge or other levy until Lessee's failure to satisfy same after
ten (10) days from the final determination of such contest so long as Lessee
has obtained the bond as required by this paragraph to protect Authority's
interest.
X. INDEMNIFICATION
A. Lessee's Indemnification. Lessee agrees that it will indemnify arid
hold harmless Authority and its commissioners, directors, officers,
representatives, agents, assigns, and employees from and against any and all
liability, cost and expense, including reasonable attorney's fees, in
connection with any suits, claims, demands, actions and/or causes of action of
any kind or nature arising or resulting directly or indirectly from any
negligent or intentional acts of Lessee or its activities, or the tenancy or
activities of its contractors, agents, employees, invitees, servants,
subtenants or assigns, on the leased premises or the improvements thereon, or
any part thereof, or from any negligent or intentional act or omission of
Lessee or its contractors, agents, employees, invitees, servants, subtenants or
assigns in connection therewith. Lessee's indemnification also extends to any
injuries or damages claimed by any person, which injuries or damages arise out
of or related to noise generated by operations at Centennial Airport. The
Lessee acknowledges that the golf range is within the 65 Ldn noise contour.
B. Authority's Indemnification. Authority shall indemnify, defend and
hold Lessee harmless from and against any and all claims arising from any
breach or default in the performance of any obligation on Authority's part to
be performed under the provisions of this Lease or arising from any
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negligent or intentional acts or omissions of Authority or any of Authority's
agents. contractors, employees or invitees and from and against any and all
costs, attorneys' fees, expenses and liabilities incurred in the defense of any
such claim or any action or proceeding brought thereon.
XI. INSURANCE
A. Public Liability and Property Damage. Lessee shall, at its sole
expense, procure and maintain during the term of this Lease and any extensions
thereof comprehensive public liability and property damage insurance covering
liability relating to the condition or use of the leased premises and any
injury or damage occurring in, on or about the leased premises with combined
single limit coverage of not less than One Million Dollars ($1,000,000.00). All
such public liability insurance and property damage insurance shall insure
performance by Lessee of the indemnity provisions of Article it. Authority
shall be named as an additional insured.
B. All-Risk. Lessee shall, at its sole expense, procure and maintain
during the term of this lease and any extensions thereof a policy of standard
fire and all-risk coverage casualty insurance, to be in an amount equal to the
full replacement value of the improvements, together with a so-called inflation
endorsement. The full replacement value of improvements to be insured shall be
determined by the company issuing such casualty loss policy at the time the
policy is initially obtained. Not more frequently than once every year, either
Authority or Lessee shall have the right to notify the other party that it
elects to have the full replacement value redetermined by the insurance company
then carrying the policy. The redetermination shall be made promptly and in
accordance with the rules and practices of the Board of Fire Underwriters. or a
like board recognized and generally accepted by such insurance company, and
each party shall be promptly notified of the results by the company. The
insurance policy shall be adjusted according to the redetermination, and Lessee
shall pay any increase in the premiums. Whenever any alterations or additional
improvements are in the course of construction, the casualty insurance required
by this paragraph, to the extent appropriate, shall be carried by Lessee in
builder's risk form written on a completed value basis insuring against loss to
the extent of the full replacement value of that which is being covered.
C. Rent Insurance. Lessee shall, at its sole cost, procure and
maintain during the term hereof rent or rent value insurance covering any of
the risks against which the Lessee is required to obtain insurance pursuant to
Paragraph B above naming Authority as insured, in an amount equal to not less
than the aggregate of the following for a period of not less than twelve (12)
months: (i) the Basic Rent due Authority hereunder. (ii) the amount of annual
Percentage Rent due Authority hereunder (based upon the actual amount of
Percentage Rent paid Authority for last Preceding Lease Year), if reasonably
obtainable.
D. Construction Insurance. Lessee shall, at its sole expense, procure
and maintain during the course of the construction of any improvement or
alterations on the leased premises constructed during the term of this Lease or
any extensions thereof, owner's contingent or protective liability insurance
naming Authority as an additional insured covering claims not covered by or
under the terms of the above mentioned comprehensive public liability
insurance, and Lessee shall also carry during such period of construction
Worker's Compensation Insurance covering all persons employed by Lessee on or
in connection with such construction.
E. Policies. The aforementioned minimum limits of policies shall in no
event limit the liability of Lessee hereunder. All policies provided for herein
shall be with companies approved by Authority, which approval Authority agrees
not to unreasonably withhold. Insurance companies
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authorized to do business in the State of Colorado with a rating of A-XI or
better as rated in the most recent edition of Best's Insurance Reports shall be
deemed acceptable to Authority. Each such policy shall provide that the policy
cannot be canceled or altered without thirty (30) days' prior written notice to
Authority. Originals of the policies provided for herein or certificates of
insurance evidencing these policies shall be delivered to Authority prior to the
Lease Commencement Date. except that Rent Insurance and Construction Insurance
shall be delivered prior to the issuance of any building permit for
improvements. Lessee shall, at least ten (10) days prior to the expiration of
such policies, furnish Authority with renewals or binders. Lessee agrees that if
Lessee does not take out and maintain such insurance, Authority may (but shall
not be required to) procure said insurance on Lessee's behalf and charge Lessee
the premium, together with a reasonable handling charge, payable upon demand as
additional rent.
F. Mutual Subrogation. Authority and Lessee each hereby waive any and
all rights of recovery against the other or against the Commissioners,
officers, employees, agents and representatives of the other, on account of
loss ar damage occasioned to such waiving party or its property or the property
of others under its control to the extent that such loss or damage is insured
against under any insurance policies which either may have in force at the time
of such loss or damage. Lessee shall, upon obtaining policies of insurance
required hereunder, give notice to the insurance carrier or carriers that the
foregoing mutual waiver of subrogation is contained in this Lease. and Lessee
and Authority shall each cause each insurance policy obtained by it to provide
that the insurance company waives all right of recovery by way of subrogation
against either Authority or Lessee in connection with any damage covered by any
such policy.
XII. HAZARDOUS MATERIAL
A. Lessee Obligations.
(1) Lessee shall not cause or permit any Hazardous Material
to be brought upon, kept or used in or about the based premises by Lessee, its
agents, employees, contractors or invitees, without the prior written consent
of Authority (which consent Authority shall not unreasonably withhold as long
as Lessee demonstrates to Authority's reasonable satisfaction that such
Hazardous Material is necessary or useful to lessee's business and will be
used, kept and stored in a manner that complies with all laws regulating any
such Hazardous Material). If Lessee breaches the obligations stated in the
preceding sentence, or if the presence of Hazardous Material on the leased
premises caused or permitted by Lessee results in contamination of the based
premises or if contamination of the leased premises by Hazardous Material
otherwise occurs for which Lessee is legally liable to Authority for damage
resulting therefrom, then Lessee shall indemnify, defend and hold Authority
harmless from any and all claims, judgments, damages, penalties, fines, costs,
liabilities or leases (including, without limitation, diminution in value of
the leased premises, damages for the loss or restriction on rentable or useable
space or of any amenity of the leased premises, damages arising from adverse
marketing of space and sums paid in settlement of claims, attorneys' fees,
consultant fees and expert fees), which arise during or after the lease term as
the result of such contamination. This indemnification of Authority by Lessee
includes, without limitation, cost incurred in connection with any
investigation of site conditions or any cleanup, remedial, removal or
restoration work required by any federal, state, or local governmental agency
or political subdivision because of Hazardous Material present in the soil or
ground water on or under the based premises. Without limiting the foregoing, if
the presence of any Hazardous Material on the leased premises caused or
permitted by Lessee results in any contamination of the based premises, Lessee
shall promptly take all actions at its sole expense as are necessary to return
the based premises to the condition existing prior to the introduction of any
such Hazardous Material to the leased premises;
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provided that Authority's approval of such action should first be obtained,
which approval shall not be unreasonably withheld so long as such actions would
not potentially have any material adverse effect on the leased premises.
B. Defined. As used herein the term "Hazardous Material" means any
hazardous or toxic substance, material or waste which is or becomes regulated
by any local governmental authority, the State of Colorado or the United States
Government. The term "Hazardous Material" includes, without limitation, any
material or substance that is (i) defined as a "hazardous substance" under
appropriate state law provisions (ii) petroleum; (iii) asbestos; (iv)
designated as a "hazardous substance" pursuant to Section 311 of the Federal
Water Pollution Control Act (33 U.S.C. 1321); (v) defined as a "hazardous
waste" pursuant to Section 1004 of the Federal Resource Conservation and
Recovery Act (42 U.S.C. 6903); (vi) defined as a "hazardous substance" pursuant
to Section 101 of the Comprehensive Environmental Response, Compensation and
Liability Act (42 U.S.C. 9601); or (vii) defined as a "regulated substance"
pursuant to Subchapter IX Solid Waste Disposal Act (Regulation of Underground
Storage Tanks) (42 U.S.C. 6991).
XIII. DAMAGE OR DESTRUCTION
A. Notice. In case of any damage to or destruction of the leased
premises or any part thereof resulting from any cause whatsoever, Lessee shall
give immediate notice thereto to Authority if the cost of restoration on
account thereof equals or exceeds Fifty Thousand Dollars ($50,000.00), and
Lessee shall, unless this Lease is terminated pursuant to paragraph XIII E
below, whether or not any insurance proceeds are available s or adequate for
such purpose and regardless of the dollar amount of such damage or loss, with
reasonable diligence and at Lessee's expense, promptly commence and complete
restoration as nearly as possible to the value, and substantially to the
condition and character the leased premises was in immediately prior to such
damage or destruction, all in accordance with the original Location and Extent
Drawings or in accordance with Location and Extent Drawings thereafter
submitted and approved by Authority in accordance with Article IV above.
B. Trust. Insurance proceeds payable as a result of such damage or
destruction shall be paid to a bank or trust company designated by Authority
having assets of not less than Ten Million Dollars ($10,000.000.00) and having
its main office in the State of Colorado (the "Insurance Trustee"), or H a
mortgage exists, by the Lessee's mortgagee. If no such bank, trust company, or
mortgagee is willing to act as the Insurance Trustee, then Authority shall be
the Insurance Trustee and shall hold all funds paid to it in trust for the
purposes specified herein.
C. Proceeds. Insurance proceeds (less the costs, fees and expenses
incurred by the Insurance Trustee, Authority and Lessee in the collection
thereof, which shall be paid out of such proceeds) received by the Insurance
Trustee on account of any damage to or destruction of the leased premises or
any part thereof shall be paid to Lessee or as Lessee may direct, from time to
time as me restoration of the leased premises progresses, to pay or reimburse
Lessee for the cost of such restoration, upon written request of Lessee
accompanied by evidence satisfactory to Authority and the Insurance Trustee
that (i) an amount equal to the amount requested is then due and payable or has
been paid and is properly a part of such cost, and (ii) that the net insurance
proceeds not yet advanced xxxx be sufFicient for the completion of the
restoration. If at any time during the period of restoration and/or
reconstruction, Authority or Insurance Trustee shall reasonably determine that
the insurance proceeds are insufficient to fully pay for such restoration, then
upon notice to Lessee by Authority or insurance Trustee, Lessee shall deposit
in trust with the Insurance Trustee such sums as may be required, in addition
to the net insurance proceeds men held by the Insurance Trustee, for the
completion of the
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restoration of the leased premises. Upon receipt by Authority and the insurance
Trustee of evidence satisfactory to them that (i) the restoration of the based
premises has been completed, (ii) the cost thereof has been paid in full, and
(iii) there are no mechanics' or similar liens for labor or materials supplied
in connection therewith, the balance, if any, of such insurance proceeds shall
be paid to Lessee or as me Lessee may direct.
D. Payment to Authority. Except as otherwise provided in paragraph
XIII E below, if this Lease shall be terminated by reason of Lessee's failure
to promptly commence and complete the reconstruction or restoration of the
improvements so damaged or destroyed with reasonable diligence then in such
event any insurance proceeds held by the Insurance Trustee and not theretofore
applied to the cost of the restoration of the leased premises pursuant to this
Article XIII shall be paid to Authority.
E. Option. If, within five (5) years prior to the expiration of the
term of this Lease, the improvements shall be damaged or destroyed to any
extent greater than thirty percent (30%) of the then replacement value thereof,
Lessee shall have the option within sixty (60) days from the date of such
damage or destruction to terminate this Lease by giving not less than thirty
(30) days written notice to Authority of its election to so terminate this
Lease. Upon the termination date set forth in said notice, this Lease shall
expire and terminate and Lessee shall thereupon make payment of all rent and
other sums and charges payable by Lessee hereunder as justly apportioned to the
date of such termination; provided, however, that the total unpaid balance of
any Imposition assessed or in:posed during the term of the Lease that Lessee
has elected to pay in installments shall be paid in full to Authority or the
applicable taxing authority prior to such termination. In the event of such
termination Lessee shall not be required to repair the damage but shall, at the
request of Authority raze the damaged or destroyed improvements and return the
leased premises to proper grade and compaction and to a neat and clean
condition and all net insurance monies payable as a result of such E damage or
destruction shall, after payment therefrom of the cost of such razing, grading
and compacting, subject to the claims of any approved Mortgagee, belong and be
paid to Authority. Notwithstanding the foregoing. Lessee shall not be entitled
to exercise the aforesaid option (and any purported exercise thereof shall be
void) H at the time such notice of termination is delivered to Authority (i) an
Event of Default shall exist under this Lease, other than the duty to rebuild,
or would exist with the giving of notice or the passage of time, or both such
notice and passage of time, or (ii) there is or are in force any subleases
under this Lease previously agreed to in writing by Authority, as hereinafter
provided, which will not expire upon or prior to the termination of this Lease
pursuant to this Article XIII, or (iii) a Mortgage approved by Authority will
be in effect on the date of termination.
F. Lessee Liability. Except as otherwise expressly provided in this
Article XIII, no destruction of or damage to the leased premises or any part
thereof, whether such damage or destruction be partial or total or otherwise,
or be covered by insurance or not, shall entitle or permit Lessee to surrender
or terminate this Lease or shall relieve Lessee from liability to pay in full
the rents and other sums and charges payable by Lessee hereunder, or from any
of its obligations under this Lease, arid Lessee hereby waives any rights now
or hereafter conferred upon it by statute or other law to surrender this Lease
or to quit or surrender the leased premises or any part thereof, or to receive
any suspension, diminution, abatement or reduction of the rent or other sums
and charges payable by Lessee hereunder on account of any such destruction or
damage.
XIV. WAIVER.
No waiver of default by Authority of any of the terms, covenants, or
conditions hereof to be performed, kept and observed by Lessee shall be
construed as, or operate as, a waiver by Authority of
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any of the terms, covenants or conditions herein contained, to be performed,
kept and observed by Lessee.
XV. REMOVAL OF EQUIPMENT
All equipment and personal property placed by Lessee at its expense
in, on. or about the 'eased premises, other than fixtures, shall remain the
property of Lessee and Lessee shall have the right at any time during the term
hereof, when not in default hereunder, to remove all such equipment and
property; provided, however, that ali property placed by Lessee at its expense,
in, on, or about said based premises and affixed to the realty so that same may
not be removed without material damage to the improvements thereto, shall not
be removed by Lessee at any time, but shall become a part of such improvements
and become the property of Authority upon the cancellation, expiration, or
termination of this Lease as herein provided.
XVI. SURRENDER AND HOLDING OVER
Lessee covenants that at the expiration of the lease term, it will
quit and surrender the leased premises in good state and condition, reasonable
wear and tear excepted. Lessee further covenants and agrees that the based
premises and all fixtures, improvements, equipment and other property brought,
installed, erected, attached, or placed by Lessee in, on, or about the based
premises and which by and under the terms of this Lease are provided to then
remain on the leased premises as the property of Authority shall be in good,
usable condition, reasonable wear and tear excepted. and Authority shall have
the right on such termination to enter upon and take possession of said leased
premises, with or without process of law, without liability for trespass.
Should Lessee hold over the use of or continue to occupy said leased premises
after the termination or cancellation of this Lease such holding over shall be
deemed merely a tenancy from month to month at 150% of the rental due for the
last quarter of the term hereof, determined on a pro rata basis from the prior
Lease Year's Basic Rent and Percentage Rent and shall otherwise be on the terms
and conditions herein specified insofar as applicable.
XVII. INCONVENIENCE DURING CONSTRUCTION
Lessee recognizes that from time to time during the term of this Lease
it may be necessary for Authority to initiate and carry for yard extensive
program of construction, reconstruction, expansion, relocation, maintenance and
repair in order that the Centennial Airport and its facilities may be suitable
for the volume and character of air traffic and flight activity which will
require accommodation and that such construction, reconstruction, expansion,
relocation, maintenance, and repair may inconvenience Lessee in its operation
at the Centennial Airport. Lessee agrees that no liability shall attach to
Authority, its officers, agents, employees, contractors, subcontractors and
representatives by reason of such inconvenience or interruption, and for and in
further consideration of the premises, Lessee waives any right to claim damages
or other consideration therefor, other than to the extent Authority requests
Lessee to cease operations, then Lessee is entitled to offset against any Basic
Rent or Percentage Rent owed to Authority, the Gross Income lost while
operations ceased. The amount of Gross Income which may be offset is limited to
the amount of Basic Rent and Percentage Rent owed by Lessee to Authority for
the balance of the Lease Year in which operations ceased. This paragraph does
not apply to Lessee ceasing operations pursuant to Exhibit C. Lessee
acknowledges that it has a duty to comply with Exhibit C and it has no rights
or remedies against Authority associated with or arising out of such
compliance.
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XVIII. SUBLETTING, ASSIGNMENT AND MORTGAGE
A. Sublet. Lessee may sublet portions of the leased premises during
the harm of this Lease only to persons or entities who will occupy a portion of
the leased premises for the conduct of business consistent with the uses
permitted herein and for no other purposes or uses (herein referred to as
"Occupancy Tenants"). Each sublease of any portion of the leased premises shall
be in writing and shall provide as follows: (1) That the sublease is subject
and subordinate to this Lease and to any extension, modifications or amendments
thereof; and (2) Subject to the assignment of rents to any mortgagee, that
rents due Lessee under said sublease have been assigned to Authority as
security for the performance of Lessee's covenants under this Lease, which
assignment is effective upon the occurrence any Event of Default. Upon receipt
of written notification from Authority that an Event of Default has occurred,
the Occupancy Tenant shall pay rent under the sublease directly to Authority
until the Occupancy Tenant receives written notice from Authority that Lessee
has cured the default or is in the process of curing the default in a manner
satisfactory to Authority, and that such payment by the Occupancy Tenant shall
be applied to the rents and obligations of the Lessee hereunder; and (3) That
in the event of the cancellation or termination of this Lease prior to the
expiration of the term hereof Authority agrees to automatically recognize any
sublease which (i) is for not more than five thousand (5,000) square feet of
space within the leased premises; (ii) such sublease is in a written form
previously approved by Authority; (iii) the term of such sublease is not in
excess of five (5) years, including any options to extend; and (iv) the
sublease is at a rental rate consistent with market rates. For any such
sublease not so automatically recognized, Authority agrees to execute a
non-disturbance and attornment agreement provided the sublease is an arms
length transaction at market rental rates and reasonable lease conditions. For
all subleases other than those authorized, Authority shall have the option to
terminate or cancel each such sublease. For any sublease not terminated or
cancelled, the Occupancy Tenant under each such sublease shall make full and
complete attornment to Authority for the balance of the term of such sublease
with the same force and effect as though said sublease were originally made
directly from Authority to the Occupancy Tenant.
B. Assignment. Lessee shall have the right to assign this Lease in
whole or in part with Authority's consent, which consent will not be
unreasonably withheld or delayed. In the event of an assignment of Lessee's
interest hereunder, the Lessee shall, from and after the effective date of such
assignment, be relieved of all of its obligations hereunder, accruing
subsequently to the date thereof, provided that such assignee assumes Lessee's
obligations hereunder.
C. Mortgage. Lessee may, at any time, or from time to time, mortgage
the leased premises provided written notice thereof is given to Authority
within thirty (30) days after the consummation of any such mortgage, which
right, so long as Lessee is in compliance with all of the terms, conditions and
provisions of this Lease shall be a continuing right and shall not be deemed to
be exhausted by the exercise thereof on one or more occasions. However, it
shall be a further condition of Lessee's right to mortgage the based premises
that the mortgage agrees to make all insurance proceeds available to Lessee to
repair any building(s) located on the based premises as provided in Article
XIII above. In addition, any mortgagee of the leased premises shall be deemed
to have agreed that in the event of any default by Lessee under this Lease
which is not cured as provided herein by Lessee or such mortgagee that such
mortgagee shall not thereafter have any rights whatsoever in this Lease (o::her
than its rights under paragraph XVIII D to enter into a new lease), or in any
building(s) or improvements situated on the leased premises. In the event of
such termination, said mortgagee, upon request of Authority will be obligated
to execute any release of its mortgage which may be reasonably required. In the
event of any defaults under this Lease, Authority shall give to any mortgagee
of the leased premises of which Authority has been apprised in writing, in the
manner hereinafter set forth (either by Lessee or by the
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mortgagee), notice of any defaults of Lessee, concurrently with giving notice
thereof to Lessee and an opportunity to cure said default, as provided in
paragraph XIX C hereinafter, including time to obtain possession of the leased
premises by foreclosure if this should be necessary to effect a cure. Such
notice shall be sent by registered or certified mail, return receipt requested,
to any address designated by such mortgagee.
D. New Lease. Notwithstanding anything contained in this Lease to the
contrary, if Authority terminates this Lease pursuant to the provisions of
Article XIX Authority agrees to enter into a new lease for the leased premises
with any mortgagee of the leasehold estate or its designee for the remainder of
this Lease. effective as of the date of such termination at the same Basic Rent
and Percentage Rent, and upon the same terms, covenants and conditions
contained herein, provided that (i) such mortgagee shall make written request
for such new lease within thirty (30) days after the date of such termination,
(ii) such mortgagee will pay or cause to be paid to Authority on the
commencement date of the term of the new lease all sums then due and payable
hereunder which Lessee would have been required to pay in the event Lessee's
Lease had not been terminated, together with interest thereon as herein
provided, and shall cure all defaults of Lessee under this Lease which remain
uncured as of such date and (iii) such mortgagee shall pay or cause to be paid
to Authority on that dab all expenses. including reasonable attorney's fees,
court costs and disbursements reasonably incurred by Authority in connection
with any such default and termination as well as in connection with the
execution and delivery of such new base. If more than one mortgagee (or
designee) of any portion of the leased premises shall desire to enter into such
new lease under the circumstances as outlined hereinabove in this paragraph D,
the mortgagees of leased premises in the order of the priority of their
mortgages (i.e., first mortgage, second mortgage) shall have the first
opportunity to do so. However, and irrespective of any other provisions in this
Lease h the contrary, if a mortgagee does not exercise its right to enter into
a new lease with Authority within the time periods and in accordance with the
provisions set forth hereinabove in this paragraph D, such mortgagee shall not
thereafter have any rights whatsoever in this Lease or in any building(s) or
improvements situated on the leased premises, or in any equipment, machinery or
personal property necessary for the operation of said building(s) or
improvements, all interest therein having reverted to Authority as the result
of the termination of this Lease.
XIX. AUTHORITY'S REMEDIES AND BREACH
A. Remedies. Upon an "Event of Default" (as defined herein), Authority
shall have the following remedy:
(1) Authority may, at Authority's election, terminate this
Lease by giving Lessee written notice of termination. On the giving of the
notice, in accordance with the terms of this Lease, all of Lessee's right in
the leased premises shall terminate. Promptly after notice of termination,
Lessee shall surrender and vacate the leased premises in broom-clean condition,
and Authority may re-enter and take possession of the leased premises and eject
Lessee or any of Lessee's subtenants, assignees, or other person or persons
claiming any right under or through Lessee or eject some and not others or
eject none; provided, however, that Authority shall not eject any Occupancy
Tenants who Authority is required to recognize or has recognized pursuant to
Article XVIII. This Lease may also be terminated by a court judgment
specifically providing for termination or by written agreement. Any termination
under this paragraph shall not relieve Lessee from the payment of any rent or
other sums then due to Authority or from any claim for damages accrued against
Lessee. In no event shall any one or more of the following actions by
Authority, in the absence of a written election by Authority to terminate this
Lease, constitute a termination of this Lease.
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(a) Appointment of a receiver in order to protect
Authority's interest hereunder:
(b) Consent to any subletting of the leased premises or
assignment of this Lease by Lessee, whether pursuant to the provisions hereof
with relation to assignment or subletting, or otherwise;
(c) Any other action by Authority or Authority's agents
intended to mitigate the adverse effects of any breach of this Lease by Lessee,
including without limitation, action to maintain and preserve the leased
premises or any action taken to relet the leased premises, or any portions
thereof, for the account of Lessee and in the name of Lessee.
(2) No personal liability shall exist against Lessee or
Lessee's partners, except with regard to the payment and performance bonds for
any particular building during the time between the issuance of a building
permit and of the issuance of a temporary or permanent certificate of occupancy
for that building, and except with regard to the payment of rent or other sums
due to Authority, and from any claim for damages accrued against Lessee, as of
the date of termination of the Lease pursuant to subparagraph (1) above.
B. Event of Default. A breach of this Lease shall exist if any of the
following events (severally "Event of Default" and collectively "Events of
Default") shall occur:
(1) Lessee shall have failed to pay the Basic Rent, together
with interest thereon as aforesaid, Percentage Rent, Additional Rent, or any
other charge, Imposition or any other obligation of Lessee requiring the
payment of money under the terms of this Lease, and such failure shall continue
for a period of thirty (30) days following notice from Authority; or
(2) Lessee shall have failed to perform any term, covenant or
condition of this Lease, to be performed by Lessee, except those requiring the
payment of money, and Lessee shall have failed to cure same within thirty (30)
days after written notice from Authority, delivered in accordance with the
provisions of this Lease, where such failure could reasonably be cured within
said thirty (30) day period, provided, however, that where such failure could
not reasonably be cured within said thirty (30) day period, Lessee shall not be
in default unless it has failed to promptly commence and thereafter be
continuing to make diligent and reasonable efforts to cure such failure as soon
as practicable; or
(3) Lessee shall have made a general assignment of its assets
for the benefit of its creditors; or
(4) A court shall have made or entered any decree or order:
(i) adjudging Lessee to be bankrupt or insolvent; (ii) approving as properly
filed a petition seeking reorganization of Lessee or an arrangement under the
bankruptcy laws or any other applicable debtor's relief law or statute of the
United States or any such thereof; (iii) appointing a receiver, trustee or
assignee of Lessee in bankruptcy or insolvency or for its property; (iv)
directing the winding up or liquidation of Lessee and such decree or order
shall have continued for a period of thirty (30) days; or (v) Lessee shall have
voluntarily submitted to or filed a petition seeking any such decree or order;
or
(5) The sequestration or attachment of or execution or other
levy on Lessee's interest in this Lease or the Leased Premises or any
improvements located thereon shall have occurred
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and Lessee shall have failed to obtain a return or release of such property
within thirty (30) days thereafter, or prior to sale pursuant to such buy,
whichever first occurs.
C. Mortgagee Notice. If at any time Authority gives notice of default
under this Article to the Lessee, and the Lessee's interest in the leased
premises shall be subject to the lien of any mortgage as set out in paragraph
XVIII C, and of Authority has been furnished with the names and addresses of
said mortgagees, Authority shall at the same time as Authority gives notice of
default to Lessee, give like written notice to said mortgagees. All such
mortgagees shall have the same periods of time herein granted Lessee within
which to remedy such defaults; provided, however, such mortgagees shall have
such longer period to correct any such defaults as are required to complete any
mortgage foreclosure proceedings or other remedial action which such mortgagee
elects to pursue to obtain possession of the demised premises so long as during
such longer period the mortgagee causes all Basic Rent, Percentage Rent and
Additional Rent and other amounts to be paid by Lessee hereunder, including
past due payments, to be paid to Authority as herein provided, and otherwise
performs the covenants of Lessee hereunder to the extent the same can be
performed without having possession of the demised premises. In order to assist
the mortgagee of the leased premises in curing any such defaults, Authority
hereby confers upon the mortgagee or any agents, receiver or trustee appointed
by such mortgagee, the right in the event of a default under the terms of this
Lease or any such mortgage to forthwith enter into and upon the based premises
and take possession thereof provided that such right is granted in any such
mortgage and further provided that said mortgagee causes all Basic Rent,
Percentage Rent and Additional Rent and other amounts to be paid by Lessee
hereunder, including past due payments to be paid to Authority as herein
provided, and otherwise performs the covenants of Lessee hereunder as
aforesaid.
XX. ASSIGNMENT OF RENTS
A. Assignment of Rents. Subject to the assignment of rents by Lessee
to any mortgagee, Lessee hereby assigns and transfers to Authority as
additional security for the obligations hereunder, all the rents, issues and
profits of the leased premises, and hereby gives to and confers upon Authority
the right, power and authority to collect such rents, issues and profits and
apply the same to the obligations of Lessee hereunder; provided, Lessee shall
have the right to collect such rents, issues and profits prior to any Event of
Default hereunder.
B. Right of Entry. Upon any Event of Default hereunder, Authority may,
at any time and without notice, either in person, by agent or by a receiver to
be appointed by a Court, and without regard to the adequacy of any security for
the obligations hereunder, enter upon and take possession of the leased
premises, eject subtenants who are in default and relet the leased premises, or
any part thereof, in its own name xxx for or otherwise collect such rents,
issues and profits, including those past due and unpaid, and apply the same,
less costs and expenses of operation and collection, including reasonable
attorney's fees, toward the payment of the Lessee's obligations hereunder, and
in such order as Authority may determine. The collection of such rents, issues
and profits, or the entering upon and taking possession of the leased premises,
or the application thereof as aforesaid, shall not cure or waive any default
hereunder or invalidate any act done pursuant to such default.
XXI. AUTHORITY'S RIGHT TO PERFORM LESSEE'S COVENANTS
If Lessee shall at any time fail to make any payment or perform any
other act on its part to be made or performed under this Lease, then Authority
may, at its option, after first giving Lessee thirty (30) day's written notice
to make such payment or perform such other act, but shall not be obligated
- 21 -
to, and without waiving or relieving Lessee from any obligation of Lessee under
this Lease, make such payment or perform such other act to the extent Authority
may deem desirable, and in connection therewith, pay expenses and employ
counsel. All sums so paid by Authority and all penalties, interest and costs in
connection therewith, shall be due and payable by Lessee to Authority within
ten (10) days of written notice (itemizing such sums so advanced and date of
such advance) for payment of same. Authority shall have the same rights and
remedies for the non-payment thereof as in the case of default in the payment
of rent.
XXII. ESTOPPEL CERTIFICATES
A. Lessee Certificates. Lessee agrees promptly following request by
Authority to execute and deliver to Authority any documents, including estoppel
certificates (1) certifying that this Lease is unmodified and in full force and
effect, or, if modified, stating the nature of such modification and certifying
that this Lease, as so modified, is in full force and effect and the date to
which the rent and other charges are paid in advance, if any, and (2)
acknowledging that there are not, to lessee's knowledge, any uncured defaults
on the part of Authority hereunder, or if such uncured defaults exist, stating
the nature of such uncured defaults on the part of Authority. Lessee's failure
to deliver an estoppel certificate promptly following such request (and in no
event later than 10 days following such request) shall be conclusive upon
Lessee (a) that this Lease is in full force and effect, without modification
except as may be represented by Authority, (b) that there are now no uncured
defaults in Authority's performance, and (c) that no rent has been paid in
advance.
B. Authority Certificate. Authority covenants and agrees to furnish
Lessee, any mortgages of all or any part of the leased premises, and any sub
lessees or occupants of all or any portion of the demised premises, from time
to time,within fifteen (15) days after written request therefor, a statement
wherein Authority shall acknowledge to the best of its knowledge that, as of
the date of such statement, Lessee has performed and observed all of the
covenants and conditions herein stated to be performed and observed by Lessee,
and that, as of said date, the leased premises is free of all defaults
hereunder, if such be the fact, or if the Lessee shall then be in default
hereunder, such statement shall specify the nature of such default.
XXIII. NOTICES
Any notice required or desired to be given pursuant to this Lease
shall be in writing with copies directed as indicated and shall be personally
served in the manner provided for personal service by the Colorado Rules of
Civil Procedure in effect at the time of such service, or in lieu of personal
service, by depositing same in the United States mail, postage prepaid,
certified or registered, in which later event such notice shall be deemed
delivered seventy-two (72) hours after same shall have been so deposited in the
United States mail and if such notice shall be addressed to Authority, the
address of Authority is:
Arapahoe County Public Airport Authority
0000 Xx. Xxxxxx Xx.
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Executive Director
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with copy to:
Brega & Xxxxxxx P.C.
0000 Xxxxxxx Xxxxxx, #0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Loser
and if addressed to Lessee, the address of Lessee is:
Pinecrest Enterprises, X.x.
0000 Xxxxxxxxx Xxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxx
XXIV. ACCEPTANCE OF PREMISES
Lessee's acceptance of possession of the leased premises shall be
deemed to be acceptance of the leased premises in their condition existing as
of the date of such acceptance of possession thereof, subject to all applicable
zoning, municipal, county, state and federal laws, ordinances and regulations
that may govern and relate to the use of the leased premises and subject to all
then matters of record. Lessee acknowledges that neither Authority nor
Authority's agent has made any representation or warranty as to the suitability
of the leased premises for the conduct of Lessee's business or the construction
of any improvements. Any agreements, warranties or representations not
expressly contained herein shall in no way bind either Authority or Lessee, and
Authority and Lessee expressly waive all claims for damages by reason of any
statement, representation, warranty, promise or agreement, if any, not
contained in this Lease.
XXV. WARRANTY OF TITLE
Authority covenants and agrees that it has the right and authority to
lease its interest herein and that Lessee by paying rent herein reserved, and
performing all covenants and conditions herein contained on Lessee is part to
be performed and observed, shall and will have and hold peaceful possession and
enjoyment of its interest in the demised premises during the term hereof,
subject, however, to the terms of this Lease. Subject to the provisions of this
Lease, Authority shall have the right from time to time to mortgage or
otherwise encumber all or any portion of its fee simple interest in the demised
premises.
XXVI. CONDEMNATION
A. Termination. If, during the term of this Lease, title to the whole
or substantially all of the demised premises shall be taken as the result of
the exercise of the power of eminent domain (hereinafter referred to as
"proceeding"), this Lease shall at the election of Lessee, with the written
consent of the holders of any first mortgages on the leased premises, terminate
as of the date of vesting of title pursuant to such proceeding. For the
purposes of this Article XXVI, "substantially all of the demised premises"
shall be deemed to have been taken if a taking under any such proceeding shall
involve such an area, whether the area be improved with a building(s) or be
utilized for a parking area or otherwise (including a deprivation of access to
all streets and highways abutting the demised premises), that Lessee cannot
reasonably operate in the remainder of the demised premises the business being
conducted on the demised premises at the time of such taking.
- 23 -
B. Amendment of Lease. If, during the term of this Lease, title to
less than the whole or substantially all of the demised premises shall be taken
in any such proceeding, this Lease shall not terminate, the description of the
demised premises shall be amended to reflect the elimination of the parcel so
taken; the Basic Rent thereafter due and payable by Lessee shall continue to be
computed in the manner set forth in Article III above.
C. Award. The award made in any proceeding shall be divided between
Authority and Lessee as follows The amount of any such award attributable to
the improvements for the balance of the lease term shall belong to Lessee, and
the remainder of such award shall belong to Authority; provided, however, in
the event title to the whole or substantially all of the demised premises is
taken, or any mortgagee so requires, Lessee shall be obligated to use so much
or all of its award as shall be necessary to pay off any permanent mortgage of
Lessee. To the extent Lessee's share of such amount is insufficient for this
purpose, Lessee shall pay any additional amount necessary to pay off such
mortgage.
D. Arbitration. If Authority and Lessee shall be unable to agree as to
whether "substantially all of the demised premises" shall have been taken, as
provided in paragraph XXVI A, or the amount by which the rent shall be reduced
under paragraph XXVI B, or the attribution and division of the award as
provided in paragraph XXVI C, such question shall be submitted to arbitration
as provided in the Lease.
E. Sublease. Notwithstanding anything contained herein to the
contrary, if pursuant to the provisions of any sublease of fifty percent (50%)
or more of the improvements, the subtenant thereunder is permitted to and
terminates such sublease as a result of any proceeding, it shall be considered
that substantially all of the demised premises has been taken in such
proceeding pursuant to paragraph XXVI A above, and this Lease shall at the
option of Lessee also thereupon termination.
XXVII. EASEMENTS
Lessee's leasehold interest is subject to and burdened by all existing
easements whether filed for public record or not. These easements include, but
are not limited to, a Well Site Exclusive Easement Deed dated December 20,
1985, an Easement and Right-of-Way Agreement dated December 20, 1985, and
Easement and Right-of-Way Agreement recorded April 19, 1985, at Book 4418, Page
747 through 752, of the records of the Arapahoe County Clerk and Recorder.
XXVIII. ARBITRATION
It is hereby agreed that if, at any time hereafter, any dispute,
difference or question shall arise between the parties hereto regarding the
construction, meaning or effect of these presents or of-any act or omission to
act of either of the parties or of the rights or liabilities of either of the
parties under this Lease, every such dispute, difference or question, except
where provision is expressly made herein for the settlement of any such
question in some other manner, shall be expeditiously submitted to the American
Arbitration Association for arbitration in accordance with its then applicable
rules and regulations and the determination of the arbitrators appointed
pursuant thereto shall be binding upon the parties. In the event the American
Arbitration Association shall cease to exist or fail or refuse to act, then
either party may appoint an arbitrator and, upon making such appointment, shall
serve a written notice upon the other party; said second party shall then
appoint an arbitrator and the two arbitrators so appointed shall appoint a
third arbitrator. In the event that said second party does not, within a period
of fifteen (15) days after receiving notice from said first mentioned party,
appoint an arbitrator and serve
- 24 -
written notice thereof upon said first mentioned party, then the arbitrator
appointed by said first mentioned party shall have the power to proceed to
arbitrate and determine the question as if he were an arbitrator appointed by
both parties for this purpose and his award in writing shall be final and
binding upon both parties. In the event that both parties appoint arbitrators
as aforesaid, the two arbitrators so appointed shall, within fifteen (15) days
after the appointment of the second arbitrator, proceed to appoint a third
arbitrator. In the event that said arbitrators are unable to agree upon a third
arbitrator, such third arbitrator shall, upon the application of either party,
be appointed by the senior district court judge for the judicial district in
which the County of Arapahoe is located. The three arbitrators appointed in the
manner aforesaid shall proceed with all reasonable dispatch to hear and
determine the matter in dispute and the decision or award in writing of said
arbitrators or a majority of them shall be final and binding upon both parties.
The arbitrators are authorized to enter said decision or award in any court
having jurisdiction.
XXIX. ATTORNEYS' FEES
In the event either party shall bring any action for damages for an
alleged breach of any provisions of this Lease, to recover rent, to terminate
the tenancy of the leased premises, or to enforce, protect, determine or
establish any term or covenant of this Lease or right of either party, the
prevailing party shall be entitled to K cover from the non-prevailing party as
a part of such action or proceedings, or in a separate action brought for that
purpose, reasonable attorneys' fees and costs as may be fixed by the court or
arbitrators.
XXX. ADDITIONAL LEASE PROVISIONS
A. Observance of laws. Lessee shall observe and obey all laws,
ordinances. rules and regulations of the United States. including but not
limited to Exhibit C. the State of Colorado, Arapahoe County, and Authority
which may be applicable to its operations upon the leased premises, and shall
make no unlawful or offensive use of the leased premises.
B. Codes. Lessee shall conform to all applicable safety, health, and
sanitary codes and agrees to cooperate with Authority in its fire prevention
efforts.
C. Airport Development. Authority reserves the right to further
develop or improve the landing area of Centennial Airport as it sees fit, and
without unreasonable interference or hindrance.
D. Authority's Rights. Authority reserves the right (but shall not be
obligated to the Lessee) to maintain and keep in repair the landing area of
Centennial Airport and all publicly-owned facilities of Centennial Airport
together with the right to direct and control all activities in this regard.
E. Subordination. This Lease shall be subordinate to the provisions of
any existing or future agreement between Authority and the United States,
relative to the operation or maintenance of Centennial Airport, the execution
of which has been or may be required as a condition precedent to the
expenditure of Federal funds for the development of Centennial Airport so long
as there is no material affect on Lessee's rights under this Lease. This
subordination includes, but is not limited to, the right of Authority, during
time of war or national emergency, to lease the tending area, or any part
thereof, to the United States for military or naval use, and if any such base
is made, the provisions of any contracts or leases with Lessee shall be
suspended.
- 25 -
F. Representations and Warranties. All terms and conditions with
respect to this Lease are expressly contained herein, and the Lessee agrees
that no representative or agent of Authority has made any representation or
promise with respect to this Lease not expressly contained herein.
G. Exclusive Right. It is understood and agreed that nothing herein
shall be construed to grant or authorize the granting of an exclusive right
within the meaning of 9 Section 308 (a) of the Federal Aviation Act of 1958, as
amended, for the development of commercial, office, and retail uses at the
Centennial Airport.
H. Executive Order. In performance of its obligations under this Lease
and with reference solely to the property covered by this Lease, Lessee shall
comply with the requirements of any Executive Order barring discrimination;
further, in accordance with t : these requirements. Lessee shall not
discriminate in any manner against any employee or applicant for employment
because of political or religious opinion or affiliation, sex. race, creed,
color, or national origin and further, Lessee shall include a similar clause in
ali subcontracts, except subcontracts for standard commercial supplies or raw
materials. Lessee understands and acknowledges that Authority has given to the
United States of America, acting by and through the Federal Aviation
Administration, certain assurances in respect to non-discrimination which have
been required by Title VI of the Civil Rights Act of 1964, and by or pursuant
to Title 49, Code of Federal Regulations, Department of Transportation,
Subtitle A, Office of the Secretary, Part 21, Non-discrimination in
Federally-Assisted Programs of the Department of Transportation, as a condition
precedent to the Government making grants in aid to Authority, for certain
Airport programs and activities, and that Authority is required under said
regulations to include in every agreement or concession pursuant to which any
person or persons other than Authority operates or has the right to operate any
facility on Centennial Airport providing services to the public, the following
covenant, to which Lessee agrees:
"Lessee, in its operation at and use of the Airport, covenants that
it will not on the grounds of sex, race, color, or national origin:
discriminate or permit discrimination against any person or group
of persons in any manner prohibited by Title 49, Code of Federal
Regulations, Department of Transportation, Subtitle A, Office of
the Secretary, Part 21; and in the event of such discrimination,
Lessee agrees that Authority has the right to take such action,
against Lessee as me Government may direct to enforce this
covenant."
I. Affirmative Action Program. In performance of its obligations under
this Lease and with reference solely to the property covered by this Lease,
Lessee assures that it will undertake an affirmative action program as required
by 14 CFR Part 152, Subpart E, to ensure that no person shall on me grounds of
race, creed, color, national origin, or sex be excluded from participating in
any employment activities covered in 14 CFR Part 152. Subpart E. The Lessee
assures that no person shall be excluded-on these grounds from participating in
or receiving the services or benefit of any program or activity covered by this
subpart. The Lessee assures that it will require that its covered sub
organizations provide assurances to the Lessee that they will require
assurances from their sub organizations, as required by 14 CFR Part 152,
Subpart E, to the same effect.
J. Impossibility. If the obligations and duties of Lessee are
incapable of being performed by Lessee by insurrection, war, calamity, natural
catastrophe, or other act of God beyond the control of Lessee, then for such
time period as the rights sod ; obligations are incapable of being performed
this Lease shall be suspended and the time of such suspension shall not be
counted against Lessee, anything to the contrary in this Lease notwithstanding.
- 26 -
XXXI. QUIET POSSESSION
Authority covenants that Lessee, upon payment of the rent reserved
herein and the performance of each of the covenants, agreements and conditions
on the part of Lessee to be observed and performed, shall and may, peaceable
and quietly, have, hold and enjoy the leased premises for the term hereof, free
from molestation, eviction or disturbance by Authority, subject to the terms
and conditions of this Lease and to the following:
(i) Authority hereby reserves, for the use and benefit of the public,
a right of flight for the passage of aircraft in the navigable airspace above
the surface of the leased premises, as determined by the regulations and
technical standards promulgated by the Federal Aviation Administration,
together with the right to cause in said airspace such noise as may be inherent
in the operation of aircraft, now known or hereafter used for navigation of or
flights in air, using said airspace for landing at, taking off from, or
operating on the Airport.
(ii) Authority reserves from this Lease all water, gas, oil,
hydrocarbon and mineral rights in and under the surface of the based premises;
provided, however, that Authority shall not conduct any operations on the
surface of the leased premises for the exploration, development or recovery of
the rights and substances reserved which would interfere with Lessee's use and
occupancy of the leased premises, and Authority agrees to indemnify and hold
harmless Lessee with regard to any loss, damage, or expense occurred as a
result of such exploration, development or recovery.
XXXII. GENERAL
A. Captions. The captions used in this Lease are for the purpose of
convenience only and shall not be construed to limit or extend the meaning of
any part of this Lease. .
B. Executed Leases. Any executed copy of this Lease shall be deemed an
original .for all purposes.
C. Time of Essence. Time is of the essence for the performance of each
covenant and term of this Lease.
D. Invalidity. In case any one or more of the provisions contained
herein, except for the payment or rent, shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provisions of this Lease, but
this Lease shall be construed as if such invalid, illegal or unenforceable
provision had not been contained herein. This Lease shall be construed and
enforced in accordance with the laws of the State of Colorado.
E. Mortgage. Whenever the word "mortgage" is used herein, it shall be
deemed to include a deed of trust. Whenever the word "mortgagor" is used
herein, it shall be deemed to include a trust or grantor of a deed of trust.
Whenever the word "mortgagee" is used herein, it shall be deemed to include the
holder and beneficiary of a deed of trust, and the holder of a certificate of
purchase pursuant to foreclosure.
F. Fair Meaning. The language in all parts of this Lease shall in all
cases be construed as a whole according to its fair meaning, and not strictly
for or against either Authority or Lessee. When the context of this Lease
requires, the neuter gender includes the masculine, the feminine, a partnership
or corporation or joint venture, and the singular includes the plural.
- 27 -
G. Construction. Each term and provision of this Lease performable by
Lessee shall be construed to be both a covenant and a condition, conferring
upon Authority, in the event of breach of any such term or condition, the right
to terminate this Lease.
H. Modification and Merger. This Lease may not be amended, modified
cancelled or surrendered except in writing signed by both parties and any
mortgagee of any portion of the leasehold estate, and no claimed oral agreement
shall be binding or admitted in evidence in any action. In addition to the
above, there shall not be any merger of the leasehold estate and the fee simple
estate of Authority if both such estates shall become owned by the same party
without the written consent of all mortgagees of the leasehold estate.
I. Memorandum. Authority and Lessee agree upon request of either of
them to execute a memorandum of this Lease in recordable form. Alteratively,
this Lease may be recorded by either Authority or Lessee. In either event, if
this Lease shall terminate, Authority shall be entitled to record an affidavit
(such affidavit to be executed by the Chairman of the Authority Board of
Commissioners), stating that this Lease has terminated and the recording of
such affidavit shall be conclusive evidence that this Lease has in fact
terminated.
J. Binding Effect. The covenants and agreements contained in this
Lease shall be binding upon and shall inure to the benefit of the parties
hereto and their respective heirs, successors, and assigns (to the extent this
Lease is assignable).
K. Remedies. All remedies herein conferred upon Authority or Lessee
shall be deemed cumulative and no one remedy shall be exclusive of any other
remedy herein conferred or created by laws.
L. Good Faith. Each party hereto agrees to act reasonably and in good
faith with respect to the performance and fulfillment of the terms of each and
every covenant and condition contained in this Lease.
M. Consent. Wherever the consent or approval of Authority ia required,
Authority hereby agrees that such consent or approval shall not be unreasonably
withheld.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed as of the day and year first above written.
AUTHORITY:
ARAPAHOE COUNTY PUBLIC AIRPORT
AUTHORITY
ATTEST:
By_________________________________
Chairman
By_________________________
- 28 -
LESSEE:
PINECREST ENTERPRISES, LTD.
ATTEST:
By_________________________________
President
By_________________________
APPROVED AS TO FORM:
---------------------------
Attorney for Authority
- 29 -
FIRST AMENDMENT TO
GROUND LEASE AND AGREEMENT
This First Amendment to Ground Lease and Agreement is made and entered
into by and among the Arapahoe County Pubic Airport Authority (the
"Authority"), Pinecrest Enterprises, Ltd. (present Lessee"), and Swingmaster
Golf at Centennial, Ltd. ("new Lessee").
WITNESSETH:
WHEREAS, a Ground Lease and Agreement was entered into between
Authority and present Lessee dated November 1, 1994 ("Lease"); and
WHEREAS, the new Lessee is a limited partnership and the present
Lessee is a general partner of the new Lessee; and
WHEREAS, the present Lessee and the new Lessee have established that
the new, Lessee will be the operating entity under the Lease; and
WHEREAS, as a condition of financing for the project contemplated in
the Lease, the Small Business Administration ("SBA") is requiring the new
Lessee to substitute for the present Lessee under the Lease.
NOW, THEREFORE, in consideration of the premises and the covenants
herein contained, it is hereby agreed among the Authority, the present Lessee,
and the new Lessee as follows:
1. The new Lessee shall be substituted hr the present Lessee under the
Lease effective March 9, 1995. As of March 9, 1995 and thereafter, all
references on and in Lease the Lessee Pinecrest Enterprises, Ltd. shall be
deemed to mean Swingmaster Golf at Centennial, Ltd.
2. Effective March 9, 1995, the new Lessee assumes all the obligations
of the present Lessee under the Lease.
DATED this 9th day of March, 1995.
THE ARAPAHOE COUNTY PUBLIC AIRPORT
AUTHORITY
ATTEST:
By_________________________________
Chairman Pro-Tem
---------------------------
Clerk
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ATTEST: PINECREST ENTERPRISES, LTD., a
Colorado Corporation
---------------------------
Secretary
By_________________________________
President
SWINGMASTER GOLF AT CENTENNIAL, LTD.,
a Colorado limited partnership
By: PINECREST ENTERPRISES, LTD., a Colorado
Corporation, General Partner
ATTEST:
---------------------------
Secretary
By_________________________________
Xxxxxxx Xxxxxxx, President
- 31 -
FIRST AMENDMENT TO
GROUND LEASE AND AGREEMENT
This First Amendment to Ground Lease and Agreement is made and entered
into by and among the Arapahoe County Pubic Airport Authority (the
"Authority"), Pinecrest Enterprises, Ltd. (present Lessee"), and Swingmaster
Golf at Centennial, Ltd. ("new Lessee").
WITNESSETH:
WHEREAS, a Ground Lease and Agreement was entered into between
Authority and present Lessee dated November 1, 1994 ("Lease"); and
WHEREAS, the new Lessee is a limited partnership and the present
Lessee is a general partner of the new Lessee; and
WHEREAS, the present Lessee and the new Lessee have established that
the new, Lessee will be the operating entity under the Lease; and
WHEREAS, as a condition of financing for the project contemplated in
the Lease, the Small Business Administration ("SBA") is requiring the new
Lessee to substitute for the present Lessee under the Lease.
NOW, THEREFORE, in consideration of the premises and the covenants
herein contained, it is hereby agreed among the Authority, the present Lessee,
and the new Lessee as follows:
1. The new Lessee shall be substituted hr the present Lessee under the
Lease effective March 9, 1995. As of March 9, 1995 and thereafter, all
references on and in Lease the Lessee Pinecrest Enterprises, Ltd. shall be
deemed to mean Swingmaster Golf at Centennial, Ltd.
2. Effective March 9, 1995, the new Lessee assumes all the obligations
of the present Lessee under the Lease.
DATED this 9th day of March, 1995.
THE ARAPAHOE COUNTY PUBLIC
AIRPORT AUTHORITY
ATTEST:
By_________________________________
Chairman
---------------------------
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ATTEST: PINECREST ENTERPRISES, LTD., a
Colorado Corporation, General Partner
---------------------------
By_________________________________
General Partner
ATTEST: SWINGMASTER GOLF AT CENTENNIAL,
LTD., a Colorado limited partnership
---------------------------
By_________________________________
Pinecrest Enterprises, Ltd., a Colorado
limited partnership, General Partner
- 33 -
SECOND AMENDMENT TO
GROUND LEASE AND AGREEMENT
This Second Amendment to Ground Lease and Agreement is made and
entered into by and between the Arapahoe County Pubic Airport Authority (the
"Authority"), and Swingmaster Golf at Centennial, Ltd. ("Lessee")
WITNESSETH:
WHEREAS, a Ground Lease and Agreement was entered into between
Authority and present Lessee dated November 1, 1994 and subsequently amended on
March 9, 1995 (collectively the o Lease.); and
WHEREAS, as a condition of financing for the project contemplated in
the Lease the First National Bank of Xxxxxx has requested certain amendments to
the Lease.
NOW, THEREFORE, in consideration of the premises and the covenants
herein contained, it is hereby agreed between the Authority and the Lessee as
follows:
1. Amend paragraph E on page 6 to read as follows:
E. Use Restrictions. The leased premises and the improvements
to be constructed thereon shall be utilized as a driving range/golf center
facility as conditionally approved at the Location and Extent hearing held by
the Arapahoe County Planning Commission on July 12, 1994.
2. Amend paragraph C on page 22 to read as follows:
C. Mortgagee Notice. If at any time Authority gives notice of
default under this Article to the Lessee and the Lessee's interest in the
leased premises shall be subject to the lien of any mortgage as set out in
paragraph XVIII C, and if Authority has been furnished with the names and
addresses of said mortgagees, Authority shall at the same time as Authority
gives notice of default to Lessee, give like written notice to said mortgagees.
All such mortgagees shall have sixty (60) days within which to remedy such
defaults; provided, however, such mortgagees shall have such longer period to
correct any such defaults as are required to complete any mortgage foreclosure
proceedings or other remedial action which such mortgagee elects to pursue to
obtain possession of the demised premises so long as during such longer period
the mortgagee causes all Basic Rent, Percentage Rent and Additional Rent and
other amounts to be paid by Lessee hereunder, including past due payments, to
be paid to Authority as herein provided, and otherwise performs the covenants
of Lessee hereunder to the extent the same can be peformed without having
possession of the demised premises. In order to assist the mortgagee of the
leased premises in curing any such defaults, Authority hereby confers upon the
mortgagee or any agents, receiver or trustee appointed by such mortgagee, the
right in the event of a default under the terms of this Lease or any such
mortgage to forthwith enter into and upon the leased premises and take
possession thereof provided that such right is granted n any such mortgage, and
further provided that said mortgagee causes all Basic Rent, Percentage Rent and
Additional Rent and other amounts to be paid by Lessee hereunder, including
past due payments to be paid to Authority as herein provided, and otherwise
performs the covenants of Lessee hereunder as aforesaid.
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3. In all other respects the terms and conditions of the Lease remain
as stated therein.
DATED this 8th day of June, 1995.
THE ARAPAHOE COUNTY PUBLIC
AIRPORT AUTHORITY
ATTEST:
By_________________________________
Chairman Pro-Tem
---------------------------
Clerk
SWINGMASTER GOLF AT CENTENNIAL,
LTD., a Colorado limited partnership
ATTEST: PINECREST ENTERPRISES, LTD., a
Colorado Corporation, General Partner
---------------------------
Secretary
By_________________________________
Xxxxxxx Xxxxxxx, President
LESSEE:
PINECREST ENTERPRISES, LTD.
ATTEST:
By_________________________________
President
By_________________________
APPROVED AS TO FORM:
---------------------------
Attorney for Authority
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