LEASE between STAGECOACH STOP, LLC and THE EATON BANK Dated: December 17, 1996
Exhibit 10.22
between
STAGECOACH STOP, LLC
and
THE XXXXX BANK
Dated: December 17, 1996
| 1. | AGREEMENT | 1 | ||
| 2. | PREMISES | 1 | ||
| 3. | TERM | 1 | ||
| a. Initial Term |
1 | |||
| b. Option to Extend |
1 | |||
| 4. | RENT | 1 | ||
| 5. | TAXES | 2 | ||
| a. Obligation for Payment |
2 | |||
| b. Taxes Payable in Installments |
3 | |||
| c. Taxes for Period Other Than Term |
3 | |||
| d. Other Impositions |
3 | |||
| e. Right to Contest Taxes |
3 | |||
| f. Estimated Payments |
4 | |||
| g. Final Settlement |
4 | |||
| 6. | UTILITIES | 4 | ||
| 7. | INSURANCE | 5 | ||
| a. “All-Risk” Coverage |
5 | |||
| b. General Liability |
5 | |||
| c. Other Matters |
5 | |||
| d. Additional Insureds |
6 | |||
| e. Waiver |
6 | |||
| 8. | USE | 6 | ||
| 9. | COMPLIANCE WITH LAWS (GENERALLY) | 6 | ||
| a. Tenant’s Obligations |
6 | |||
| b. Tenant’s Obligations with Respect to Environmental Laws |
7 | |||
| c. Right to Contest Laws |
9 | |||
| 10. | ASSIGNMENTS AND SUBLEASES | 9 | ||
| 11. | SIGNS | 10 | ||
| 12. | REPAIRS AND XXXXXXXXXXX | 00 | ||
| 00. | END OF TERM | 11 | ||
| 15. | RIGHT OF FIRST REFUSAL TO PURCHASE THE PREMISES | 11 | ||
| x. Xxxxx |
11 | |||
| b. Applicable Transactions |
11 | |||
| c. Excluded Transactions |
12 | |||
| d. Conditions |
12 | |||
| e. No Assignment |
12 | |||
| f. Apportionment of Rent |
12 | |||
| g. No Recording |
12 | |||
| h. Time of the Essence |
12 | |||
| 16. | DAMAGE AND DESTRUCTION | 12 | ||
| a. General |
12 | |||
| b. Landlord’s Inspection |
13 | |||
| c. Landlord’s Costs |
14 | |||
| d. No Rent Abatement |
14 | |||
| e. Damage During Last Three Years |
14 | |||
| 17. | CONDEMNATION | 14 | ||
| a. Total Taking |
14 | |||
| b. Partial Taking |
14 | |||
| c. Tenant’s Award |
15 | |||
| d. Allocation of an Award for a Total Taking |
15 | |||
| 18. | SUBORDINATION | 16 | ||
| a. General |
16 | |||
| b. Attornment |
16 | |||
| 19. | LANDLORD’S ACCESS | 17 | ||
| 20. | INDEMNIFICATION, WAIVER AND RELEASE | 17 | ||
| a. Indemnification |
17 | |||
| b. Waiver and Release |
18 | |||
| 21. | SECURITY DEPOSIT | 18 | ||
| 22. | COVENANT OF QUIET ENJOYMENT | 18 | ||
| 23. | LIMITATION ON TENANTS RECOURSE | 19 | ||
| 24. | DEFAULT | 19 | ||
| a. Cure |
19 | |||
| b. Events of Default |
19 | |||
| c. Remedies |
20 | |||
| 25. | ARBITRATION | 22 | ||
| 26. | MISCELLANEOUS | 23 | ||
| a. Recordation |
23 | |||
| b. Holding Over |
23 | |||
| c. Estoppel Certificates |
23 | |||
| d. No Waiver |
24 | |||
| e. Authority |
24 | |||
| f. Notices |
25 | |||
| g. Attorneys’ Fees |
25 | |||
| h. Waiver of Jury Trial |
25 | |||
| i. Binding Effect |
26 | |||
THE XXXXX BANK LEASE
THIS LEASE is made on this 17th day at December, 1996, by STAGECOACH STOP, LLC, a Colorado limited liability company (“Landlord”), and THE XXXXX BANK (“Tenant”).
1. AGREEMENT
Landlord leases the premises (as that term is defined in paragraph 2) to Tenant, and Tenant leases the premises from Landlord, according to this lease.
2. PREMISES
The premises are the land and building commonly known as 0000 00xx Xxxxxx, xxxx xx Xxxxxxx, Xxxxxx of Weld, State of Colorado, and more particularly described as set forth on Exhibit “A” attached and incorporated by reference.
The premises include the heating, ventilating, and air conditioning systems; and the mechanical, electrical, and plumbing systems; and all other subsystems serving the premises.
3. TERM
a. Initial Term. The term of this lease will be ten (10) years, beginning on January 1, 1997, and expiring at midnight on December 31, 2006 unless Tenant exercises its option to extend.
b. Option to Extend. Tenant shall have two (2) five year options to extend. Tenant may extend the term until the fifteenth anniversary of the expiration date by written notice of its election to do so given to Landlord at least one hundred eighty (180) days prior to the then effective expiration date. If Tenant has exercised its first five year option, Tenant may extend the term an additional five years by giving written notice at least one hundred eighty (180) days prior to the end of the first option extension. The terms and conditions of the lease applicable when the option is extended will govern the extended term.
4. RENT
Rent will be calculated on a rate per square foot which is agreed to be $15.00 per square foot for years 1 through 5. The Landlord and Tenant agree that there are nine thousand four hundred (9400) square feet in the premises. For each of the first initial 60 months of the lease, Tenant will pay Landlord Eleven Thousand Seven Hundred and Fifty ($11,750) Dollars (the “monthly rent”) in equal consecutive monthly installments on or before the first day of each successive month during the term of this lease.
Commencing with the sixty-first (61st) month of the initial ten year term, the rent shall be increased not less than ten (10%) percent. The rent may be increased more than ten (10%) percent, to the extent and percentage that the “prime rate” at that time is higher than the present 8.25%. But, regardless of the then prime rate, the increase in monthly rent due and payable may not exceed twenty (20%).
If, and only if, the options to extend are exercised by Tenant and there is thus an obligation of the Tenant to pay rent, the rent for months one hundred and twenty-one (121) through one hundred and eighty (180) and for months one hundred and eighty-one (181) through two hundred and forty (240) will be recalculated. The base for recalculation shall be the rent payable for month 120 for the first extension, and, if applicable because Tenant shall have exercised its second five year option, for month 180 for the second extension. There shall be a minimum increase often (10%) percent and a maximum increase of twenty (20%) percent of the monthly rent commencing with months 121 and 181. The term “prime rate” which is the basis for the recalculations means “The national corporate prime rate as published in the Money Rates section of the Wall Street Journal and defined as the base rate on corporate loans posted by at least 75% of the nation’s 30 largest banks. If this publication is canceled, or the index is significantly modified, a reasonable functional successor of this index readily available to the public will be used.”
If Tenant, at its own cost, adds square footage to the premises during the term of this lease, or any extension, these additions will not be included as additional rent or added to the above agreed square footage subject to rent. At the conclusion of this lease, the additional square footage shall either be removed at the direction of the Landlord by the Tenant, at the Tenant’s sole expense restoring the Premises to its condition prior to the addition, or shall become, without any further charge, the property of the Landlord.
The monthly rent will be paid in advance at the address specified for Landlord or such other place as Landlord designates, without prior demand. If the actual commencement date occurs on a day other than the first day of a calendar month, or if the actual expiration date occurs on a day other than the last day of a calendar month, then the monthly rent for the fractional month will be prorated on a daily basis.
5. TAXES
a. Obligation for Payment. Tenant will pay all taxes (collectively the “tax”), including without limitation real estate and personal property taxes and assessments assessed, levied, confirmed, or imposed during the term of this lease, whether or not now customary or within the contemplation of Landlord and Tenant:
i. upon, measured by, or reasonably attributable to the cost or value of Tenant’s equipment, furniture, fixtures, and other personal property located in the premises, or by the cost or value of any leasehold improvements made in or to the premises by or for Tenant, regardless of whether title to the improvements is in Tenant or Landlord;
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ii. upon or measured by the monthly rent, including without limitation any gross receipts tax or excise lax levied by the federal government or any other governmental body with respect to the receipt of monthly rent;
iii. upon or with respect to the possession, leasing, operation, management, maintenance, alteration, repair, use, or occupancy by Tenant of the premises or any portion of the premises;
iv. upon this transaction or any document to which Tenant is a party creating or transferring an interest or an estate in the premises;
v. upon the premises and all personal property, furniture, fixtures, and equipment, and all replacements, improvements, or additions to them, whether owned by Landlord or Tenant; and;
vi. based in whole or in part on a monthly rent, whether made in addition or in substitution for any other tax.
b. Taxes Payable in Installments. Unless Landlord has exercised its rights under paragraph 5(f) and if, by law, any tax may at the option of the taxpayer be paid in installments (whether or not interest accrues on the unpaid balance of the tax), Tenant may exercise the option to pay the tax (and any accrued interest on the unpaid balance of the tax) in installments; in that event, Tenant will pay the installments that become due during the term or this lease as they become due and before any fine, penalty, further interest, or cost may be added to them.
c. Taxes for Period Other Than Term. Any tax’ including taxes that have been converted into installment payments, relating to a fiscal period of the taxing authority, a part of which period is included within the term and a part of which is included in a period of time prior to the commencement or after the end of the term, whether or not such tax or installments are assessed, levied, confirmed, imposed upon or in respect of, or become a lien upon the premises, or become payable, during the term, will be adjusted between Landlord and Tenant as of the commencement or end of the term, so that Tenant will pay that portion of the tax or installment which the part of the fiscal period included in the term bears to the fiscal period, and Landlord will pay the remainder.
d. Other Impositions. Tenant will not be obligated to pay local, state, or federal net income taxes assessed against Landlord; local, state, or federal capital levy of Landlord; or sales, excise, franchise, gift, estate, succession, inheritance, or transfer taxes of Landlord.
e. Right to Contest Taxes. Tenant will have the right to contest the amount or validity, in whole or in part, of any tax by appropriate proceedings diligently conducted in good faith, only after paying the tax or posting such security as Landlord may reasonably require in order to protect the premises against loss or forfeiture. Upon the termination of those proceedings, Tenant will pay the amount of the tax or part of the tax as finally determined, the payment of which may
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have been deferred during the prosecution of the proceedings, together with any costs, fees, interest, penalties, or other related liabilities. Landlord will not be required to join in any contest or proceedings unless the provisions of any laws or regulations then in effect require that the proceedings be brought by or in the name of Landlord. In that event, Landlord will join in the proceedings or permit them to be brought in its name; however, Landlord will not be subjected to any liability for the payment of any costs or expenses in connection with any contest or proceedings, and Tenant will Indemnify- Landlord against and save Landlord harmless from any of those costs and expenses.
f. Estimated Payments. If any lender requires Landlord to do so, then, in each December during the term or as soon after December as practicable, Landlord will give Tenant written notice of its estimate of amounts payable under this paragraph S for the ensuing calendar year. On or before the first day of each month during the ensuing calendar year, Tenant will pay to Landlord one-twelfth (1/12th) of the estimated amounts; however, if notice is not given in December, Tenant will continue to pay on the basis of the prior year’s estimate until the month after notice is given. If at any time or times it appears to Landlord that the amounts payable under this paragraph 5 for the current calendar year will vary from its estimate by more than ten percent (10%), Landlord will, by written notice to Tenant revise its estimate for the year, and subsequent payments by Tenant for such year will be based upon the revised estimate.
g. Final Settlement. Within ninety (90) days after the close of each calendar year or as soon after the ninety-day period as practicable, Landlord will deliver to Tenant a statement of amounts payable under paragraph S for the calendar year, prepared by certified public accountants designated by Landlord or prepared by Landlord and certified by one of its officers. The certified statement will be final and binding upon Landlord and Tenant. If the statement shows an amount owing by Tenant that is less than the estimated payments previously made by Tenant for the calendar year, the statement will be accompanied by a refund of the excess paid by Landlord to Tenant. If the statement shows an amount owing by Tenant that is more than the estimated payments previously made by Tenant for the calendar year, Tenant will pay the deficiency to Landlord within thirty (30) days after the delivery of the statement.
6. UTILITIES
Tenant will pay the appropriate suppliers for all water, gas, electricity, light, heat, telephone, power, and other utilities and communications services used by Tenant on the premises during the term, whether or not the services are billed directly to Tenant. Tenant will also procure, or cause to be procured, without cost to Landlord, any and all necessary permits, licenses, or other authorizations required for the lawful and proper installation and maintenance upon the premises of wires, pipes, conduits, tubes, and other equipment and appliances for use in supplying any of the services to and upon the premises. Landlord, upon request of Tenant, and at the sole expense and liability of Tenant, will join with Tenant in any application required for obtaining or continuing any of the services.
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7. INSURANCE
a. “All-Risk” Coverage. Tenant will, at its sole expense, obtain and keep in force, during the term of this lease, “all-risk” coverage insurance (excluding earthquake and flood insurance) naming Landlord and Tenant as their interest may appear and other parties that Landlord or Tenant may designate as additional insureds in the customary form in the City of Greeley for buildings and improvements of similar character, on all buildings and improvements now or after this date located on the premises. The amount of the insurance will be designated by Landlord no more frequently than once every twelve (12) months, will be set forth on an “agreed amount endorsement” to the policy of insurance, will not be less than the agreed value of the buildings and improvements, and will be subject to arbitration as set forth below if Landlord and Tenant do not agree with regard to such value. Landlord and Tenant agree that the value of the existing building on the premises is One Million One Hundred Thousand ($1,100,000) Dollars.
b. General Liability. Tenant will, at is sole expense, obtain and keep in force during the term of this lease commercial general liability insurance with a combined single limit of not less than Five Hundred Thousand ($500,000) Dollars for injury to or death of any one person, for injury to or death of any number of persons in one occurrence, and for damage to property, insuring against any and all liability of Landlord and Tenant, including without limitation coverage for contractual liability, broad form property damage, host liquor liability, and non-owned automobile liability, with respect to the premises or arising out of the maintenance, use, or occupancy of the premises. The insurance will insure the performance by Tenant of the indemnity agreement as to liability for injury to or death of persons and damage to property set forth in paragraph 20. The insurance will be noncontributing with any insurance that may be carried by Landlord and will contain a provision that Landlord, although named as an insured, will nevertheless be entitled to recover under the policy for any loss, injury, or damage to Landlord, its agents, and employees, or the property of such persons. The limits and coverage of all the insurance will be adjusted by agreement of Landlord and Tenant during every third Lease year during the term of this lease in conformity with the then prevailing custom of insurance liability in the City of Greeley and any disagreement regarding the adjustment will be submitted to arbitration in the manner provided herein.
c. Other Matters. All insurance required in this paragraph and all renewals of it will be issued by companies authorized to transact business in the State of Colorado and rated at least A+ Class X by Best’s Insurance Reports (property liability) or approved by Landlord. All insurance policies will be subject to approval by Landlord and any lender as to form and substance; will expressly provide that the policies will not be canceled or altered without thirty (30) days’ prior written notice (to Landlord and any lender, in the case of “all-risk” coverage insurance, and to Landlord, in the case of general liability insurance); and will, to the extent obtainable, provide that no act or omission of Tenant which would otherwise result in forfeiture or reduction of the insurance will affect or limit the obligation of the insurance company to pay the amount of any loss sustained. Tenant may satisfy its obligation under this paragraph by appropriate endorsements of its blanket insurance policies.
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d. Additional Insureds. All polices of liability insurance that Tenant is obligated to maintain according to this lease (other than any policy of workmen’s compensation insurance) will name Landlord and such other persons or firms as Landlord specifies from time to time as additional insureds. Original or copies of original policies (together with copies of the endorsements naming Landlord, and any others specified by Landlord, as additional insureds) and evidence of the payment of all premiums of such policies will be delivered to Landlord prior to Tenant’s occupancy of the premises and from time to time at least thirty (30) days prior to the expiration of the term of each policy. All public liability, property damage liability, and casualty policies maintained by Tenant will be written as primary policies, not contributing with and not in excess of coverage that Landlord may carry. No insurance required to be maintained by Tenant by this paragraph will be subject to any deductible without Landlord’s prior written consent.
e. Waiver. Landlord and Tenant waive all rights to recover against each other or against each other Tenant or occupant of the building, or against the officers, directors, shareholders, partners, joint venturers, employees, agents, customers, invitees, or business visitors of each of theirs or of any other Tenant or occupant of the building, for any loss or damage arising from any cause covered by any insurance required to be carried by each of them pursuant to this paragraph 7 or any other insurance actually carried by each of them. Landlord and Tenant will cause their respective insurers to issue appropriate waiver of subrogation rights endorsements to all policies of insurance carried in connection with the building or the premises or the contents of either of them. Tenant will cause all other occupants of the premises claiming by, under, or through Tenant to execute and deliver to Landlord a waiver of claims similar to the waiver in this paragraph and to obtain such waiver of subrogation rights endorsements.
8. USE
The premises will be used primarily for banking, insurance, securities, and related financial services.
9. COMPLIANCE WITH LAWS (GENERALLY)
a. Tenant’s Obligations. Tenant will not use or occupy, or permit any portion of the premises to be used or occupied:
i. in violation of any law, ordinaries, order, rule, regulation, certificate of occupancy, or other governmental requirement;
ii. for any disreputable business or purpose; or
iii. in any manner or for any business or purpose that creates risks of fire or other hazards, or that would in any way violate, suspend, void, or increase the rate of fire or liability or any other insurance of any kind at any time carried by Landlord upon all or any part of the building in which the premises are located or its contents.
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Tenant will comply with all laws, ordinances, orders, rules, regulations, and other governmental requirements relating to the use, condition, or occupancy of the premises, and all rules, orders, regulations, and requirements of the board of fire underwriters or insurance service office, or any other similar body, having jurisdiction over the building in which the premises are located.
b. Tenant’s Obligations with Respect to Environmental Laws. Landlord will hold Tenant harmless from any environmental claims arising from conditions in existence at the time of commencement of this Lease.
i. Tenant and the premises will remain in compliance with all applicable laws, ordinances, and regulations (including consent decrees and administrative orders) relating to public health and safety and protection of the environment, including those statues, laws, regulations, and ordinances identified in subparagraph vii, all as amended and modified from time to time (collectively, “environmental laws”). All governmental permits relating to the use or operation of the premises required by applicable environmental laws are and will remain in effect, and Tenant will comply with them.
ii. Tenant will not permit to occur any release, generation, manufacture, storage, treatment, transportation, or disposal of “hazardous material,” as that term is defined in subparagraph vii, on, in, under, or from the premises. Tenant will promptly notify~ Landlord, in writing, if Tenant has or acquires notice or knowledge that any hazardous material has been or is threatened, to be released, discharged, disposed of; transported, or stored on, in, under, or from the premises; and if any hazardous material is found on the premises, Tenant, at its own cost and expense, will immediately take such action as is necessary to detain the spread of and remove the hazardous material to the complete satisfaction of Landlord and the appropriate governmental authorities.
iii. Tenant will immediately notify~ Landlord and provide copies upon receipt of all written complaints, claims, citations, demands, inquiries, reports, or notices relating to the condition of the premises or compliance with environmental laws. Tenant will promptly cure and have dismissed with prejudice any of those actions and proceedings to the satisfaction of Landlord. Tenant will keep the premises free of any lien imposed pursuant to any environmental laws.
iv. Landlord will have the right at all reasonable times and from time to time to conduct environmental audits of the premises, and Tenant will cooperate in the conduct of those audits. The audits will be conducted by a consultant of Landlord’s choosing, and if any hazardous material is detected or if a violation of any of the warranties, representations, or covenants contained in this paragraph is discovered, the fees and expenses of such consultant will be paid additional rent under this lease on demand by Landlord.
v. If Tenant fails to comply with any of the foregoing warranties, representations, and covenants, Landlord may cause the removal (or other cleanup acceptable
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to Landlord) of any hazardous material from the premises. The costs of hazardous material removal and any other cleanup (including transportation and storage costs) will be additional rent under this lease, whether or not a court has ordered the cleanup, and those costs will become due and payable on demand by Landlord. Tenant will give Landlord, its agents, and employees access to the premises to remove or otherwise clean up any hazardous material. Landlord, however, has no affirmative obligation to remove or otherwise clean up any hazardous material, and this lease will not be construed as creating any such obligation.
vi. Tenant agrees to indemnify~~, defend (with counsel reasonably acceptable to Landlord and at Tenant’s sole cast), and hold Landlord and Landlord’s affiliates, shareholders, directors, officers, employees, and agents free and harmless from and against all losses, liabilities, obligations, penalties, claims, litigation, demands, defenses, costs, judgments, suits, proceedings, damages (including consequential damages), disbursements, or expenses of any kind (including attorneys’ and experts’ fees and expenses, and fees and expenses incurred in investigating, defending, or prosecuting any litigation, claim, or proceeding) that may at any time be imposed upon, incurred by, or asserted or awarded against Landlord or any of them in connection with or arising from or out of:
(1) any hazardous material on, in, under, or affecting all or any portion of the premises;
(2) any misrepresentation, Inaccuracy, or breach of any warranty, covenant, or agreement contained or referred to in this paragraph;
(3) any violation or claim of violation by Tenant of any environmental law; or
(4) the imposition of any lien for the recovery of any costs for environmental cleanup or other response costs relating to the release or threatened release of hazardous material.
vii. For purposes of this lease, “hazardous material” means:
(1) “hazardous substances” or “toxic substances” as those terms are defined by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601, et seq., or the Hazardous Materials Transportation Act, 49 U.S.C. § 1802, both as amended to this date and as amended after this date;
(2) “hazardous wastes,” as that term is defined by the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6902, et seq., as amended to this date and as amended after this date;
(3) any pollutant, contaminant, or hazardous, dangerous, or toxic
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chemical, material, or substance within the meaning of any other applicable federal, state, or local law, regulation, ordinance, or requirement (Including consent decrees and administrative orders) relating to or imposing liability or standards of conduct concerning any hazardous, toxic, or dangerous waste substance or material, all as amended to this date or as amended after this date;
(4) crude oil or any fraction of it that is liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute);
(5) any radioactive material, including any source, special nuclear, or byproduct material as defined at 42 U.S.C. § 2011, et seq., as amended to this date or as amended after this date;
(6) asbestos in any form or condition; and
(7) polychlorinated biphenyls (PCB’s) or substances or compounds containing PCB’S.
c. Right to Contest Laws. Tenant will have the right to contest by appropriate proceedings diligently conducted in good faith in the name of the Tenant, or, with the prior consent of the Landlord, in the name of Landlord, or both, without cost or expense to Landlord, the validity or application of any law, ordinance, order, rule, regulation, or legal requirement of any nature. If compliance with any law, ordinance, order, rule, regulation, or requirement may legally be delayed pending the prosecution of any proceeding, without incurring any lien, charge, or liability of any kind against the premises, or Tenant’s Interest in the premises, and without subjecting Tenant or Landlord to any liability, civil or criminal, for failure so to comply, Tenant may delay compliance until the final determination of the proceeding. Even if a lien, charge, or liability may be incurred by reason of delay, Tenant may contest and delay, so long as (1) the contest or delay does not subject Landlord to criminal liability and (2) Tenant furnishes to Landlord security, reasonably satisfactory to Landlord, against any loss or injury by reason of any contest or delay. Landlord will not be required to join any proceedings referred to in this paragraph unless the provision of any applicable law, rule or regulation at the time in effect requires that the proceedings be brought by or in the name of Landlord, or both.
10. ASSIGNMENTS AND SUBLEASES
Without Landlord’s prior written consent, which Landlord agrees will not be unreasonably withheld or delayed, Tenant will neither assign this lease in whole or in part, nor sublease all or part of the premises. Upon the sale or merger of Tenant. Tenant shall have the right to assign all its rights and duties under this lease unless the landlord can demonstrate substantial reason(s) for objection. The Landlord will have ten (10) days after receipt of written notice from Tenant of its intention to assign this Lease to make known its objections, which must be substantive and in good faith.
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11. SIGNS
Tenant may install signs on the premises in accordance with federal, state, and local statutes, laws, ordinances, and codes.
12. REPAIRS AND MAINTENANCE
Tenant will, at its sole cost and expense, maintain the premises and make repairs, restorations, and replacements to the premises, including without limitation the heating, ventilating, air conditioning, mechanical, electrical, elevator, and plumbing systems; roof; structural roof; walls, and foundations; and the fixtures and appurtenances to the premises as and when needed to preserve them in good working order and condition and regardless of whether the repairs, restorations, and replacements are ordinary or extraordinary, foreseeable or unforeseeable, capital or noncapital, or the fault or not the fault of Tenant, its agents, employees, invitees, visitors, or contractors. All repairs, restorations, and replacements will be in quality and class equal to the original work or installations. If Tenant fails to make repairs, restorations, or replacements. Landlord may make them at the expense of the Tenant and the expense will be collectible as additional rent to be paid by Tenant within fifteen (15) days after delivery of a statement for the expense. To the extent there are any warranties or guarantees or the like surviving to Landlord, Landlord will first, in good faith, look to appropriate repair or replacements by those obligors before Tenant will be obligated under the provisions of this paragraph.
13. ALTERATIONS
Tenant will not make any alterations, additions, or improvements to the premises without Landlord’s prior written consent; however, Landlord’s prior written consent will not be necessary for any alteration, addition, or improvement which:
a. costs less than Twenty Five Thousand ($25,000) Dollars, including labor and materials;
b. does not change the general character of the premises, or reduce the fair market value of the premises below its fair market value prior to the alteration, addition, or improvement;
c. is made with due diligence, in a good and workmanlike manner, and in compliance with the laws, ordinances, orders, rules, regulations, certificates of occupancy, or other governmental requirements described in paragraph 9;
d. is promptly and fully paid for by Tenant; and
e. is made under the supervision of an architect or engineer reasonably satisfactory to Landlord and in accordance with plans and specifications and cost estimates approved by Landlord.
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Landlord may designate a supervising architect to assure compliance with the provisions of this paragraph, and if it does, Tenant will pay the supervising architect’s charges. Subject to Tenant’s rights in paragraph 14, all alterations, additions, fixtures, and improvements, whether temporary or permanent in character, made in or upon the premises by Tenant, will immediately become Landlord’s property and at the end of the term of this lease will remain on the premises without compensation to Tenant. By notice given to Tenant no less than ninety (90) days prior to the end of this lease, Landlord may require that any alterations, additions, fixtures, and improvements made in or upon the premises be removed by Tenant. In that event, Tenant will remove the alterations, additions, fixtures, and improvements at Tenant’s sole cost and will restore the premises to the condition in which they were before the alterations, additions, and improvements were made, reasonable wear and tear excepted.
14. END OF TERM
At the end of this lease, Tenant will surrender the premises in good order and condition, ordinary wear and tear excepted. If Tenant is not then in default, Tenant may remove from the premises any trade fixtures, equipment, and movable furniture placed in the premises by Tenant, whether or not the trade fixtures or equipment are fastened to the building. Tenant will not remove any trade fixtures or equipment without Landlord prior written consent if the trade fixtures or equipment are used in the operation of the building or if the removal of the fixtures or equipment will impair the structure of the building. Whether or not Tenant is then in default, Tenant will remove alternations, additions, improvements, trade fixtures, equipment, and furniture that Landlord has requested be removed in accordance with paragraph 13. Tenant will fully repair any damage occasioned by the removal of any trade fixtures, equipment, furniture, alterations, additions, and improvements. All trade fixtures, equipment, furniture, alterations, additions, and improvements not so removed will conclusively be deemed to have been abandoned by Tenant and may be appropriated, sold, stored, destroyed, or otherwise disposed of by Landlord without notice to Tenant or to any other person and without obligation to account for them. Tenant will pay Landlord all expenses incurred in connection with Landlord’s disposition of such property, including without limitation the cost of repairing any damage to the building or premises caused by removal of the property. Tenant’s obligation to observe and perform this covenant this survive the end of this lease.
15. RIGHT OF FIRST REFUSAL TO PURCHASE THE PREMISES
x. Xxxxx Landlord grants Tenant a right of first refusal to purchase the premises pursuant to this section.
b. Applicable Transactions. If Landlord receives an offer to purchase the premises and it intends to accept the offer, or if Landlord decides to make an offer to sell the premises. Landlord will give a written copy of the offer to Tenant. Tenant will have the right to accept the offer by written notice to Landlord given within fifteen (15) days after Tenant’s receipt of the offer. If Tenant accepts the offer, Tenant will be bound to purchase the premises strictly in accordance with the terms of the offer. If Tenant declines to exercise its right of first refusal, Landlord shall
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have six (6) months from the date of the original offer to complete the sale strictly in accordance with the original terms of the offer. Failure to do so reinstates Tenant’s right of first refusal, including a new fifteen (15) day option period.
So long as Landlord’s rights are not affected, Tenant has the right to bid at any foreclosure sale of the premises.
c. Excluded Transactions. Tenant does not have any right of first refusal to purchase the premises in any of the following transactions: (i) sale of the premises to a related entity (as that term is defined in this paragraph); (ii) encumbrances of the premises; and (iii) any offer after the first one that Landlord gives to Tenant. The term “related entity” means any corporation (A) that owns eighty percent (80%) or more of the voting stock of Landlord; (B) eighty percent (80%) or more of whose voting stock is owned by Landlord; or (C) eighty percent (80%) or more of whose voting stock is owned by a corporation that also owns fifty (50%) percent or more of the voting stock of Landlord, or similar percentages with regard to limited liability companies.
d. Conditions. Tenant does not have any right of first refusal to purchase the premises __ at the time Landlord received the offer or decides to make the offer: (i) Tenant is in default under this lease; or (ii) an event has occurred that would be a default under this lease after either notice or the passage of time; or (iii) Tenant has assigned all or part of this lease or has sublet more than 20% of the premises.
e. No Assignment. The rights granted to Tenant in this section are personal and may not be assigned by Tenant in connection with an assignment of this lease or otherwise, and Tenant’s rights in this paragraph may not be exercised by anyone other than Tenant. Any attempted assignment of Tenant’s rights in this paragraph will be of no effect, and will terminate these rights as of the date of the purported assignment.
f. Apportionment of Rent. If Tenant purchases the premises, prepaid rent will be credited against the purchase price.
g. No Recording. Tenant must not allow its rights in this section to be placed of record. If it does, its rights under this section will terminate as of the time of recording. No recording of Tenant’s rights in this paragraph will be of any effect.
h. Time of the Essence. Time is of the essence of each and every agreement and condition on this paragraph.
16. DAMAGE AND DESTRUCTION
a. General. If the premises are damaged or destroyed by reason of fire or any other cause, Tenant will immediately notify – Landlord and will promptly repair or rebuild the building at
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Tenant’s expense, so as to make the building at least equal in value to the building existing immediately prior to the occurrence and as nearly similar to it in character as is practicable and reasonable. Landlord will apply and make available to pay to Tenant the net proceeds of any fire or other casualty insurance paid to Landlord, after deduction of any costs of collection, including attorneys’ fees, for repairing or rebuilding as the same progresses. Payments will be made against property certified vouchers of a competent architect in charge of the work and approved by Landlord. Landlord will contribute, out of the insurance proceeds, towards each payment to be made by or on behalf of Tenant for the repairing or rebuilding of the building, under a schedule of payments to be made by Tenant and not unreasonably objected to by Landlord, an amount in the proportion to the payment by Tenant as the total net amount received by Landlord from insurers bears to the total estimated cost of the rebuilding or repairing. Landlord, however, may withhold from each amount so to be paid by Landlord fifteen (15%) percent of the amount until the work of repairing or rebuilding is completed and proof has been furnished to Landlord that no lien or liability has attached or will attach to the premises or to Landlord in connection with the repairing or rebuilding. Upon the completion of rebuilding and the furnishing of that proof; the balance of the net proceeds of the insurance will be paid to Tenant. If the proceeds of insurance are paid to the holder of any mortgage on Landlord’s interest in the premises, Landlord will make available net proceeds of the insurance in accordance with the provisions of this paragraph. Before beginning repairs or rebuilding, or letting any contracts in connection with repairs or rebuilding, Tenant will submit for Landlord’s approval, which approval Landlord will not unreasonably withhold or delay, complete and detailed plans and specifications for the repairs or rebuilding. Promptly after receiving Landlord’s approval of those plans and specifications, Tenant will begin the repairs or rebuilding and will prosecute the repairs or rebuilding to completion with diligence, subject, however, to strikes, lockouts, acts of God, embargoes, governmental restrictions, and other causes beyond Tenant’s reasonable control. Tenant will obtain and deliver to Landlord a temporary or final certificate of occupancy before the premises are reoccupied for any purpose. The repairs or rebuilding will be completed free and clear of mechanic’s or other liens, and in accordance with the building codes and all applicable laws, ordinances, regulations, or orders of any state, municipal, or other public authority affecting the repairs or rebuilding, and also in accordance with all requirements of the insurance rating organization, or similar body, and of any liability insurance company insuring Landlord against liability for accidents related to the premises. Any remaining proceeds of insurance after the restoration will be Tenant’s property.
b. Landlord’s Inspection. During the progress of repairs or rebuilding, Landlord and its architects and engineers may from time to time inspect the building and will be furnished, if required by them, with copies of all plans, shop drawing, and specifications relating to the repairs or rebuilding. Tenant will keep all plans, shop drawings, and specifications at the building, and Landlord and its architects and engineers may examine them at all reasonable times. If; during repairs or rebuilding, Landlord and its architects and engineers determine that the repairs or rebuilding are not being done in accordance with the approved plans and specifications. Landlord will give prompt notice in writing to Tenant, specifying in detail the particular deficiency, omission, or other respect in which Landlord claims the repairs or rebuilding do not accord with the approved plans and specifications. Upon the receipt of that notice, Tenant will cause corrections to be made to any deficiencies, omissions, or such other respect Tenant’s obligations
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to supply insurance according to paragraph 7 will be applicable to any repairs or building under this paragraph.
c. Landlord’s Costs. The charges of any architect or engineer of Landlord employed to pass upon any plans and specifications and to supervise and approve any construction, or for any services rendered by the architect or engineer to Landlord as contemplated by any of the provisions of this lease, will be paid by Tenant as a cost of the repair or rebuilding. The fees of such architect or engineer will be those customarily paid for comparable services.
d. No Rent Abatement. Monthly rent and additional rent will not xxxxx pending the repairs or rebuilding except to the extent to which Landlord receives a net sum as proceeds of any rent insurance.
e. Damage During Last Three Years. If at any time during the last three years of the term (as extended according to paragraph 3) the building is so damaged by fire or otherwise that the cost of restoration exceeds fifty (50%) percent of the replacement value of the building (exclusive of foundations) immediately prior to the damage, either Landlord or Tenant may, within thirty (30) days after such damage, give notice of its election to terminate this lease and, subject to the further provisions of this paragraph, this lease will cease on the tenth (10th) day after the delivery of that notice. Monthly rent will be apportioned and paid to the time of termination. If this lease is so terminated, Tenant will have no obligation to repair or rebuild, and the entire insurance proceeds will belong to Landlord.
17. CONDEMNATION
a. Total Taking, If; by exercise of the right of eminent domain or by conveyance made in response to the threat of the exercise of such right (in either case a “taking”) all of the premises are taken, or if so much of the premises are taken that the premises (even if the restorations described in paragraph 17.b. were to be made) cannot be used by Tenant for the purposes for which they were used immediately before the taking, this lease will end on the earlier of the vesting of title to the premises in the condemning authority or the taking or possession of the premises by the condemning authority (in either case the “ending date”). If this lease ends according to this paragraph 17.a., prepaid rent will be appropriately prorated to the ending date. The award in a taking subject to this paragraph 17.a. will be allocated according to paragraph 17.d.
b. Partial Taking. If; after a taking, so much of the premises remains that the premises can be used for substantially the same purposes for which they were used immediately before the taking:
i. this lease will end on the ending date as to the part of the premises which is taken;
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ii. prepaid rent will be appropriately allocated to the part of the premises which is taken and prorated to the ending date;
iii. beginning on the day after the ending data, rent for so much of the premises as remains will be reduced in the proportion of the floor area of the building remaining after the taking to the floor area of the building before the taxing;
iv. at its cost, Tenant will restore so much of the premises as remains to a sound architectural unit substantially suitable for the purposes for which it was used immediately before the taking, using good workmanship and new first class materials, all according to paragraph 13;
v. upon completion of restoration according to clause 17.b.iv., Landlord will pay Tenant the lesser of the net award made to Landlord on account of the taking (after deducting from the total award attorneys’, appraisers’, and other costs incurred in connection with obtaining the award, and amounts paid to the holders of mortgages affecting the premises), or Tenant’s actual out-of-pocket cost of restoring the premises; and
vi. Landlord will keep the balance of the net award.
c. Tenant’s Award. In connection with any taking subject to paragraph 17.a. or 17.b., Tenant may prosecute its own claim by separate proceeding against the condemning authority for damages legally due to it (such as The loss of fixtures which Tenant was entitled to remove and moving expenses) only so long as Tenant’s award does not diminish or otherwise adversely affect Landlord’s award.
d. Allocation of an Award for a Total Taking. If this lease ends according to paragraph 17.a., the condemnation award will be paid in the order in this paragraph 17.d. to the extent it is sufficient:
i. First, Landlord will be reimbursed for its attorneys’ fees, appraisal fees, and other costs incurred in prosecuting the claim for the award.
ii. Second, any lender whose loan is secured by the premises will be paid the principal balance of its loan, plus accrued and unpaid interest, and any other charges due on payment.
iii. Third, Landlord will be paid the value at the time of the award of lost rent and the reversion to the extent they exceed the amount paid to Landlord’s lender.
iv. Fourth, Tenant will be paid its adjusted book value as of the date of the taking of its improvements (excluding trade fixtures) made to the premises. In computing its adjusted book value, improvements will be conclusively presumed to have been depreciated or amortized for federal income tax purposes over their useful lives with a reasonable salvage value.
v. Fifth, the balance will be divided equally between Landlord and Tenant.
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18. SUBORDINATION
a. General. This lease and Tenant’s rights under this lease are subject and subordinate to any ground lease or underlying lease, first mortgage, first deed of trust, or other first lien encumbrance or indenture, together with any renewals, extensions, modifications, consolidations, and replacements of them, which now or at any subsequent time affect the premises, any interest of Landlord in the premises, or Landlord’s interest in this lease and the estate created by this lease (except to the extent that any such instrument expressly provides that this lease is superior to it). This provision will be self-operative and no further instrument of subordination will be required in order to effect it. Nevertheless, Tenant will execute, acknowledge and deliver to Landlord, at any time and from time to time, upon demand by Landlord, any documents as may be requested by Landlord, any ground Landlord or underlying lessor, or any mortgagee, or any holder of a deed of trust or other instrument described in this paragraph, to confirm or effect the subordination. If Tenant fails or refuses to execute, acknowledge, and deliver any such document within twenty (20) days after written demand, Landlord, it successors, and assigns will be entitled to execute, acknowledge, and deliver the document on behalf of Tenant as Tenant’s attorney-in-fact Tenant constitutes and irrevocably appoints Landlord, its successors, and assigns, as Tenant’s attorney-in-fact to execute, acknowledge, and deliver on behalf of Tenant any documents described in this paragraph.
b. Attornment. If any holder of any mortgage, indenture, deed of trust or other similar instrument described in subparagraph (a) succeeds to Landlord’s interest in the premises, Tenant will pay to it all rents subsequently payable under this lease. Tenant will, upon request of anyone so succeeding to that interest of Landlord, automatically become the Tenant of; and attorn to, the successor in interest without change in this lease. The successor in interest will not be bound by (1) any payment of rent for more than one month in advance, (2) any amendment or modification of this lease made without its written consent, (3) any claim against Landlord arising prior to the date on which the successor succeeded to Landlord’s interest, or (4) any claim or offset of rent against the Landlord. Upon request by the successor in interest and without cost to Landlord or the successor in interest, Tenant will execute, acknowledge, and deliver an instrument or instruments confirming the attornment. The instrument of attornment will also provide that the successor in interest will not disturb Tenant in its use of the premises in accordance with this lease. If Tenant fails or refuses to execute, acknowledge, and deliver the instrument within twenty (20) days after written demand, the successor in interest will be entitled to execute, acknowledge, and deliver the document on behalf of Tenant as Tenant’s attorney-in-fact. Tenant constitutes and irrevocably appoints the successor in interest as Tenant’s attorney-in-fact to execute, acknowledge, and deliver on behalf of Tenant any document described in this paragraph.
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19. LANDLORD’S ACCESS
Landlord, its agents, employees, and contractors may enter the premises at any time in response to an emergency, and at reasonable hours to (a) inspect the premises, (b) exhibit the premises to prospective purchasers, lenders, or Tenants, (c) determine whether Tenant is complying with its obligations in this lease, (d) supply any other service which this lease requires Landlord to provide, (e) post notices of nonresponsibility or similar notices, or (f) make repairs which this lease requires Landlord to make; however, all work will be done as promptly as reasonably possible and so as to cause as little interference to Tenant as reasonably possible. Tenant waives any claim on account of any injury or inconvenience to Tenant’s business, interference with Tenant’s business, loss of occupancy or quiet enjoyment of the premises, or any other loss occasioned by the entry. Landlord will at all times have a key with which to unlock all of the doors in the premises (excluding Tenant’s vaults, safes, and similar areas designed in writing by Tenant in advance). Landlord will have the right to use any means Landlord may deem proper to open doors in the premises and to the premises in an emergency in order to enter the premises. No entry to the premises by Landlord by any means will be a forcible or unlawful entry into the premises or a detainer of the premises or an eviction, actual or constructive, of Tenant from the premises, or any part of the premises, nor will any entry entitle Tenant to damages or an abatement of rent or other charges which this lease requires Tenant to pay.
20. INDEMNIFICATION, WAIVER AND RELEASE
a. Indemnification. Tenant will indemnify Landlord, its agents, and employees against, and hold Landlord, its agents, and employees harmless from, any and all demands, claims, causes of action, fines, penalties, damages (including consequential damages), losses, liabilities, judgments, and expenses (including without limitation attorneys’ fees and court cost) incurred in connection with or arising from:
i. the use or occupancy of the premises by Tenant or any person claiming
ii. any activity, work, or thing done or permitted or suffered by Tenant in or
iii. any acts, omissions, or negligence of Tenant, any person claiming under Tenant, or the employees, agents, contractors, invitees, or visitors of Tenant or any person;
iv. any breach, violation, or nonperformance by Tenant, any person claiming under Tenant or the employees, agents, contractors, invitees, or visitors of Tenant or any person of any term, covenant, or provision of this lease or any law, ordinance, or governmental requirement of any kind: or
v. any injury or damage to the person, property, or business of Tenant or its employees, agents, contractors, invitees, visitors, or any other person entering upon the premises under the express or implied invitation of Tenant, except for loss of use of all or any portion of the premises or Tenant’s property located within the premises that is proximately caused by or results proximately from the negligence of Landlord.
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If any action or proceeding is brought against Landlord, its employees, or agents by reason of any claim, Tenant, upon notice from Landlord, will defend the claim at Tenant’s expense with counsel reasonably satisfactory to Landlord.
b. Waiver and Release. Tenant waives and releases all claims against Landlord, its employees, and agents with respect to all matters for which Landlord has disclaimed liability pursuant to the provisions of this lease. In addition, Tenant agrees that Landlord, its agents, and employees will not be liable for any loss, injury, death, or damage (including consequential damages) to persons, property, or Tenant’s business occasioned by theft, robbery, act of God; public enemy; injunction; riot; strike; insurrection; war; court order; requisition; order of governmental body or authority; fire; explosion; falling objects; steam, water, rain or snow; leak or flow of water (including water from the elevator system), rain or snow from the premises or into the premises or from the roof; street subsurface, or from any other place, or by dampness, or from the breakage, leakage, obstruction, or other defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning, or lighting fixtures of the building; or from construction, repair, or alteration of the premises; or from any acts or omissions of any visitor of the premises; or from any cause beyond Landlord’s control.
21. SECURITY DEPOSIT
Tenant has deposited Eleven Thousand Seven Hundred and Fifty ($11,750) Dollars with Landlord as security for Tenant’s payment of rent and performance of its other obligations under this lease, and any renewals or extensions of this lease. If Tenant defaults in its payment of rent or performance of its other obligations under this lease, Landlord may use all or part of the security deposit for the payment of rent or any other amount in default, or for the payment of any other amount which Landlord may spend or become obligated to spend by reason on Tenant’s default, or for the payment to Landlord of any other loss or damage which Landlord may suffer by reason of Tenant’s default. If Landlord so uses any portion of the security deposit. Tenant will restore the security deposit to its original amount within five (5) days after written demand from Landlord. Tenant shall not be entitled to interest on the security deposit. The security deposit will not be a limitation on Landlord’s damages or other rights under this lease, or a payment of liquidated damages, or an advance payment of the rent. If Tenant pays the rent and performs all of its other obligations under this lease, Landlord will return the unused portion of the security deposit to Tenant within sixty (60) days after the end of the term; however, If Landlord has evidence that the security deposit has been assigned to an assignee of the lease, Landlord will return the security deposit to the assignee. Landlord may deliver the security deposit to the purchaser of the premises and be discharged from further liability with respect to it.
22. COVENANT OF QUIET ENJOYMENT
So long as Tenant pays the rent and performs all of its obligations in this lease, Tenant’s possession of the premises will not be disturbed by Landlord, or anyone claiming by, through or under Landlord, or by the holders of the mortgages described in paragraph 18.
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23. LIMITATION ON TENANT’S RECOURSE
Tenant’s sole recourse against Landlord, and any successor to the interest of Landlord in the premises, is to the interest at Landlord, and any successor, in the premises. Tenant will not have any right to satisfy any judgment which it may have against Landlord, or any successor, from any other assets of Landlord, or any successor.
In this paragraph the terms “Landlord” and “successor” include the shareholders, venturers, and partners of Landlord and successor and the officers, directors, and employees of Landlord and successor. The provisions of this paragraph are not intended to limit Tenant’s right to seek injunctive relief or specific performance, or Tenant’s right to claim the proceeds of insurance (if any) specifically maintained by Landlord for Tenant’s benefit.
24. DEFAULT
a. Cure. If Tenant fails to pay when due amounts payable under this lease or to perform any of its other obligations under this lease within the time permitted for its performance, then Landlord, after ten (10) days’ written notice to Tenant (or, in case of any emergency, upon notice or without notice as may be reasonable under the circumstances) and without waiving any of its rights under this lease, may (but will not be required to) pay the amount or perform the obligation.
All amounts so paid by Landlord and all costs and expenses incurred by Landlord in connection with the performance of any obligations (together with interest at the prime rate from the date of Landlord’s payment of the amount or incurring of each cost or expense until the date of full repayment by Tenant) will be payable by Tenant to Landlord on demand. In the proof of any damages that Landlord may claim against Tenant arising out of Tenant’s failure to maintain insurance, Landlord will not be limited to the amount of the unpaid insurance premium but will also be entitled to recover as damages for the breach the amount of any uninsured loss (to the extent of any deficiency in the insurance required by the provisions of this lease), damages, costs and expenses of suit, including attorneys’ fees, arising out of damage to, or destruction of; the premises occurring during any period for which Tenant has failed to provide the insurance.
b. Events of Default. The following occurrences are “events of default”:
i. Tenant defaults in the due and punctual payment of rent, and the default continues for five (5) days after receipt of written notice from Landlord; however, Tenant will not be entitled to more than one (1) notice for default in payment of rent during any twelve-month period, and if; within twelve (12) months after any notice, any rent is not paid when due, an event of default will have occurred without further notice;
ii. Tenant vacates or abandons the premises;
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iii. This lease or the premises or any part of the premises is taken upon execution or by other process of law directed against Tenant, or is taken upon or subjected to any attachments by any creditor of Tenant or claimant against Tenant, and the attachment is not discharged within fifteen (15) days after its levy;
iv. Tenant files a petition in bankruptcy or insolvency or for reorganization or arrangement under the bankruptcy laws of the United States or under any insolvency act of any state, or is dissolved, or makes an assignment for the benefit of creditors;
v. Involuntary proceedings under any bankruptcy laws or insolvency act or for the dissolution of Tenant are instituted against Tenant, or a receiver or trustee is appointed for all or substantially all of Tenant’s property, and the proceeding is not dismissed or the receivership or trusteeship is not vacated within sixty (60) days after institution or appointment;
vi. Tenant fails to take possession of the premises on the commencement date of the term; or
vii. Tenant breaches any of the other agreements, terms, covenants, or conditions that this lease requires Tenant to perform, and the breach continues for a period of thirty (30) days after written notice by Landlord to Tenant specifying the Tenant’s breach(es).
c. Remedies. If any one or more events of default set forth in paragraph 24(b) occurs, then Landlord may, at its election, either:
i. give Tenant written notice of its intention to terminate this lease on the date of the notice or on any later date specified in the notice, and, on the date specified in the notice, Tenant’s right to possession of the premises, will cease and the lease will be terminated, except as to Tenant’s liability set forth in this paragraph 24.c.i., as if the date fixed in the notice were the end of the term of this lease. If this lease is terminated pursuant to the provisions of this subparagraph _, Tenant will remain liable to Landlord for damages in an amount equal to the rent and other sums that would have been owing by Tenant under this lease for the balance of the term if this lease had not been terminated, less the net proceeds, if any, of any reletting of the premises by Landlord subsequent to the termination, after deducting all Landlord’s reasonable expenses in connection with reletting, including without limitation the expenses set forth in paragraph 24.c.ii. Landlord will be entitled to collect damages from Tenant monthly on the days on which the rent and other amounts would have been payable under this lease if this lease had not been terminated, and Landlord will be entitled to receive damages from Tenant on each day. Alternatively, at the option of Landlord, if this lease is terminated. Landlord will be entitled to recover from Tenant.
(1) the worth at the time of award of the unpaid rent which had been earned at the time of termination;
(2) the worth at the time of award of the amount by which the unpaid
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rent which would have been earned after termination until the time of award exceeds the amount of rent loss that Tenant proves could reasonably have been avoided;
(3) the worth at the time of award of the amount by which the unpaid rent for the balance of the term of this lease after the time of award exceeds the amount of rent loss that Tenant proves could reasonably be avoided; and
(4) any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant’s failure to perform its obligations under this lease or which in the ordinary course of things would be likely to result from the failure.
The “worth at the time of award” of the amount referred to herein is computed by allowing interest at the lesser of 18% per annum or the highest rate permitted by law. The “worth at the time of award” of the amount referred to herein is computed by discounting the amount at the discount rate of the Federal Reserve Bank of Kansas City at the time of award.
or
ii. without demand or notice, re-enter and take possession of the premises or any part of the premises; repossess the premises as of the Landlord’s former estate; expel the Tenant from the premises and those claiming through or under Tenant; and remove the effects of both or either, without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of rent or preceding breach of covenants or conditions. If Landlord elects to re-enter as provided in this paragraph 24.c.ii., or if Landlord takes possession of the premises pursuant to legal proceedings or pursuant to any notice provided by law, Landlord may, from time to time, without terminating this lease, relet the premises or any part of the premises, either alone or in conjunction with other portions of the building of which the premises are a part, in Landlord’s or Tenant’s name but for the account of Tenant, for the term or terms (which may be greater or less than the period which would otherwise have constituted the balance of the term of this lease) and on such terms and conditions (which may include concessions of free rent, and the alteration and repair of the premises) as Landlord, in its uncontrolled discretion, may determine. Landlord may collect and receive the rents for the premises. Landlord will not be responsible or liable for any failure to relet the premises, or any part of the premises, or for any failure to collect any rent due upon the reletting. No re-entry or taking possession of the premises by Landlord will be construed as an election on Landlord’s part to terminate this lease unless a written notice of the intention is given to Tenant. No notice from Landlord under this lease or under a forcible entry and detainer statute or similar law will constitute an election by Landlord to terminate this lease unless the notice specifically says so. Landlord reserves the right following any re-entry or reletting, or both, to exercise its right to terminate this lease by giving Tenant written notice, and in that event the lease will terminate as specified in the notice. If Landlord elects to take possession of the premises according to this paragraph 24.c.ii. without terminating the lease, Tenant will pay Landlord the rent and other sums which would be payable under this lease if the repossession had not occurred, less the net proceeds, if any, of any reletting of the premises after deducting all of Landlord’s expenses incurred in connection with the reletting,
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including without limitation all repossession costs, brokerage commissions, legal expenses, attorneys’ fees, expenses of employees, alteration, remodeling and repair costs, and expenses of preparation for the reletting. If; in connection with any reletting, the new lease term extends beyond the existing term, or the premises covered by the reletting include areas that are not part of the premises, a fair apportionment of the rent received from the reletting and the expenses incurred in connection with the reletting will be made in determining the net proceeds received from reletting. In addition, in determining the net proceeds from reletting, any rent concessions will be apportioned over the term of the new lease. Tenant will pay the amounts to Landlord monthly on the days on which the rent and all other amounts owing under this lease would have been payable if possession had not been retaken, and Landlord will be entitled to receive the rent and other amounts from Tenant on each day.
25. ARBITRATION
These procedures will govern any arbitration according to this lease:
a. Arbitration will be commenced by a written demand made by Landlord or Tenant upon the other. The written demand will contain a statement of the question to be arbitrated and the name and address of the arbitrator appointed by the demandant. Within ten (10) days after its receipt of the written demand, the other will give the demandant written notice of the name and address of its arbitrator. Within Ten (10) days after the date of the appointment of the second arbitrator, the two arbitrators will meet. If the two arbitrators are unable to resolve the question in dispute within ten (10) days after their first meeting, they will select a third arbitrator. The third arbitrator will be designated as chairman and will immediately give Landlord and Tenant written notice of his/her appointment. The three arbitrators will meet within ten (10) days after the appointment of the third arbitrator. If they are unable to resolve the question in dispute within ten (10) days after their first meeting, the third arbitrator will select a time, date, and place for a hearing and will give Landlord and Tenant thirty (30) days’ prior written notice of it. The date for the hearing will not be more than sixty (60) days after the date of appointment of the third arbitrator. The first two arbitrators may be partial. The third arbitrator must be neutral. All of the arbitrators must have been active in the profession of banking, real estate or law and in good standing; not being professionally suspended or disbarred.
b. At the hearing, Landlord and Tenant will each be allowed to present testimony and tangible evidence and to cross-examine each other’s witnesses. The arbitrators may make additional rules for the conduct of the hearing or the preparation for it. The arbitrators will render their written decision to Landlord and Tenant not more than thirty (30) days after the last day of the hearing.
c. If the one of whom arbitration is demanded fails to appoint its arbitrator within the time specified, or if the two arbitrators appointed are unable to agree on an appointment of the third arbitrator within the time specified, either Landlord or Tenant may petition a justice of the 11th Judicial District Court of the State of Colorado to appoint a third arbitrator. The petitioner will give the other five (5) days’ written notice before filing its petition.
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d. The arbitration will be governed by the Arbitration Law of the State of Colorado, and, when not in conflict with that law, by the general procedures in the Commercial Arbitration Rules of the American Arbitration Association.
e. The arbitrators will not have power to add to, modify, detract from, or alter in any way the provisions of this lease or any amendments or supplements to this lease. The written decision of at least two arbitrators will be conclusive and binding upon Landlord and Tenant. No arbitrator is authorized to make an award of punitive or exemplary damages.
f. Landlord and Tenant will each pay for the services of its appointees, attorneys, and witnesses, plus one-half ( 1/2) of all other proper costs relating to the arbitration.
g. The decision of the arbitrators will be final and non-appealable, and may be enforced according to the laws of the State of Colorado.
26. MISCELLANEOUS
a. Recordation. Tenant’s recordation of this lease or any memorandum or short form of it will be void and a default under this lease.
i. that this lease is unmodified and in full force and effect, or, if the lease is modified, the way in which it is modified accompanied by a copy of the modification agreement;
ii. the date to which rental and other sums payable under this lease have been paid;
iii. that no notice has been received by Tenant of any default which has not been cured, or, if the default has not been cured, what Tenant intends to do in order to effect the cure, and when it will do so:
iv. that Tenant has accepted and occupied the premises;
v. that Tenant has no claim or offset against Landlord, or, if it does, stating the date of the assignment and assignee (if known to Tenant); and
vi. other matters as may be reasonably requested by Landlord.
| The Xxxxx Bank Lease | 23 |
Any certificate may be relied upon by any prospective purchaser of the premises and any prospective mortgagee or beneficiary under any deed of trust or mortgage encumbering the premises. If Landlord submits a completed certificate to Tenant, and if Tenant fails to object to its contents within ten (10) days after its receipt of the completed certificate, the matters stated in the certificate will conclusively be deemed to be correct. Furthermore, Tenant irrevocably appoints Landlord as Tenant’s attorney-in-fact to execute and deliver on Tenant’s behalf any completed certificate to which Tenant does not object within ten (10) days after its receipt.
e. Authority. Tenant warrants to Landlord that Tenant is a duly authorized and existing corporation, that Tenant is qualified to do business in the State of Colorado, that Tenant has full right and authority to enter into this lease, and that each and every person signing on behalf of Tenant is authorized to do so. Upon Landlord’s request, Tenant will provide evidence satisfactory to Landlord confirming these representations.
| The Xxxxx Bank Lease | 24 |
f. Notices. Any notice, request, demand, consent, approval, or other communication required or permitted under this lease will be written and will be deemed to have been given (1) when personally delivered, (2) when served pursuant to the Colorado Rules of Civil Procedure, or (3) on the fifth (5th) day after it is deposited in any depository regularly maintained by the United States postal service, postage prepaid, certified or registered mail, return receipt requested, addressed to:
| Landlord: | STAGECOACH STOP, LLC 0000-00xx Xxxxxx Xxxxxxx, Xxxxxxxx 00000 | |
| with a copy at the same time to: | Xxxxx X. Xxxxxxx, Esq. 0000 Xxxxxxxxx Xxxxx Xxxx, Xxxxx 000 Xxxxxxxxx, Xxxxxxxx 00000 | |
| Tenant: | THE EATON BANK 000 Xxx Xxxxxx, Xxxxx, Xxxxxxxx 00000 | |
| with a copy at the same time to: | Xxxxxxx X. XxXxxx, Esq. 000 Xxxxx Xxxxxx Xx., Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000 | |
Either Landlord or Tenant may change its address or addressee for purposes of this paragraph by giving ten (10) days’ prior notice according to this paragraph. Any notice from Landlord to Tenant will be deemed to have been given if delivered to the premises, addressed to Tenant, whether or not Tenant has vacated or abandoned the premises.
| The Xxxxx Bank Lease | 25 |
i. Binding Effect. This lease will inure to the benefit of; and will be binding upon, Landlord’s successor and assigns. This lease will inure to the benefit of; and will be binding upon, the Tenant’s successors and assigns so long as the succession or assignment is permitted by paragraph 10.
Landlord and Tenant have executed this lease as of the first date in this lease.
| Landlord: |
STAGECOACH STOP, LLC | |||||||
| By: | /s/ Xxxxxxx X. Xxxx | |||||||
| Xxxxxxx X. Xxxx, Manager | ||||||||
| Tenant: |
THE XXXXX BANK | |||||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||||||
| Name and Title | ||||||||
| Xxxxxxx X. Xxxxxx | ||||||||
| Senior Vice Pres & Cashier | ||||||||
| The Eaton Bank Lease | 26 |
| STATE OF COLORADO | ) | |
| )ss | ||
| COUNTY OF Weed | ) |
The foregoing instrument was acknowledged before me this 17th day of December 1996, by Xxxxxxx X. Xxxx as President [position] of THE EATON BANK.
Witness my hand and official seal.
| /s/ Xxxxxx X. Xxxxxx |
| Notary Public |
My commission expires: 0-00-00
| XXXXX XX XXXXXXXX | ) | |
| )ss | ||
| COUNTY OF Weed | ) |
The foregoing instrument was acknowledged before me this 17th day of December 1996, by Xxxxxxx X. Xxxxxx as Sr. Vice President & Cashier [position] of STAGECOACH STOP, LLC., a Colorado limited liability company.
Witness my hand and official seal.
| /s/ Xxxxxx X. Xxxxxx |
| Notary Public |
My commission expires: 9-17-98
| The Xxxxx Bank Lease | 27 |