Exhibit 10.21
SUBLEASE
THIS SUBLEASE, effective June 16, 2003, is executed by UNITED STATES
EXPLORATION, INC. ("UXP"), a Colorado Corporation with its principal business
address at 0000 Xxxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, and ASPECT ENERGY,
LLC ("ASPECT"), a Colorado limited liability company.
Recitals
A. EOP - One Civic Center Plaza, L.L.C., a Delaware limited liability
company, ("PRIME LANDLORD,") and UXP as tenant, are parties to an Office Lease
Agreement dated October 15, 1998, copies of which UXP has delivered to ASPECT
(the "PRIME LEASE"). The premises covered by the Prime Lease include
approximately 11,854 rentable square feet of space designated (and referred to
here) as "SUITE 1950" in the building located at 0000 Xxxxxxxx, Xxxxxx, Xxxxxxxx
00000 (the "BUILDING").
B. UXP and ASPECT have agreed to enter into a Sublease with respect to a
portion of Suite 1950, as documented below.
C. The consent of Prime Landlord is required to permit such subletting.
Sublease
1. Agreement.
a. Sublease. In accordance with this Sublease, and subject to the
consent of Prime Landlord (in accordance with and subject to the terms and
provisions of the attached Consent, which shall be deemed a part hereof) and the
terms and conditions of the Prime Lease, UXP subleases to ASPECT, and ASPECT
subleases from UXP, premises comprised of approximately 8,401 rentable square
feet of space in Suite 1950, depicted as the areas double cross hatched on the
floor plan of Suite 1950 attached as Exhibit A (the "PREMISES"). ASPECT
acknowledges that the balance of Suite 1950 marked "UXP" and single cross
hatched on Exhibit A is reserved for the exclusive use of UXP.
b. Related Facilities. Throughout the term of this Sublease, ASPECT
will have the right to use two of the unreserved parking spaces in the Building
garage facility available to UXP under Exhibit E of the Prime Lease upon payment
of the applicable parking fees by ASPECT to UXP, currently $165.00 per month per
space.
c. Effect of Prime Lease. Subject to Section 6 below, the provisions
of the Prime Lease are incorporated into this Sublease as the agreement of UXP
and ASPECT as though UXP were "Landlord" under the Prime Lease and ASPECT were
"Tenant" under the Prime Lease.
Notwithstanding the foregoing, throughout this Sublease, including the
provisions incorporated in it by reference, the term "Premises" refers to the
space subleased by ASPECT hereunder, and that definition is substituted for the
definition of "Premises" in the Prime Lease;
"Lease Term" is the term in Section 2; Tenant's pro rata share" is governed by
Section 3.6; the term "Commencement Date" in the text of the Prime Lease will
have the meaning set forth in Section 2 below; the term "Base Rent," used in the
Prime Lease, will have the meaning set forth in Section 3.a below; the term
"Security Deposit" in the Prime Lease shall mean the amount delivered by ASPECT
to UXP as security for ASPECT's obligations hereunder pursuant to Section 9,
below; and the phrase "this Lease" set forth in the text of the Prime Lease will
refer to this Sublease.
d. Reservation by UXP. Upon reasonable advance notice to ASPECT, UXP
reserves the right to enter upon the Premises from time to time as necessary to
perform the obligations of UXP under the Prime Lease. The preceding sentence
will not limit the rights of UXP to enter upon the Premises in the exercise of
its remedies or the exercise of any other rights of UXP under this Sublease,
including the Prime Lease provisions incorporated in it.
2. Term.
The term of this Sublease will begin June 16, 2003 (the "COMMENCEMENT
DATE") and continue through March 31, 2008, which is the expiration of the date
of the Prime Lease, conditioned, however, on the continuing rights of UXP to
possession of the Premises under the Prime Lease.
3. Rent.
a. Base Rent . ASPECT will pay UXP, for the entire term of this
Sublease, the sum of $92,411.00 as the annual rental for the Premises in monthly
installments of $7,700.92, each due on the first day of the month (the "BASE
RENT").
b. Additional Base Rent. ASPECT will also pay, in addition to Base
Rent, ASPECT's proportionate share of all Additional Base Rent, as defined in
the Prime Lease, attributable to the Premises under the Prime Lease. ASPECT's
proportionate share (the "SUBTENANT'S SHARE") is agreed to be 1.4485%,
determined by dividing the rentable square foot area of the Premises (8,401) by
the rentable square foot area of the Building (579,999). ASPECT shall pay the
Subtenant's Share in monthly installments concurrently with each payment of Base
Rent, and UXP shall xxxx ASPECT for the Subtenant's Share on an estimated basis
throughout each year, with the understanding that UXP and ASPECT will make
appropriate adjustments to the Subtenant's Share, based on the actual Additional
Base Rent charged by Prime Landlord to UXP, all at the times and in a manner
consistent with Article IV of the Prime Lease.
c. Out-of-Pocket Expenses. ASPECT will also pay directly to UXP or
reimburse UXP for any out-of-pocket expenses charged to or incurred by UXP as a
result of the occupancy of the Premises by ASPECT and not included in Basic
Costs, as defined, in the Prime Lease. Such expenses include, by way of example
and not limitation, any costs incurred by UXP under the Prime Lease for
replacement light bulbs, and any costs of separately metered electrical service
to the Premises. ASPECT will make such payment or reimbursement with the next
payment of Base Rent coming due after UXP has presented ASPECT with a xxxx
(together
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with the supporting invoice or other documentation, if any) detailing the
charges, or within 10 days after receipt, whichever is later.
d. General Provisions. The sums due to UXP under this Section 3 and
any other monies due to UXP under this Sublease apart from Base Rent will be
considered as Additional Base Rent, and UXP may enforce ASPECT's obligation for
such Additional Base Rent with all remedies available to UXP for any default in
the payment of Base Rent. (As used in this Sublease, the term "rent" will
include "Base Rent" and "Additional Base Rent.")
ASPECT will pay all rent to UXP at the address of UXP in the first
paragraph of this Sublease or to any other address specified by UXP in
accordance with the notice provisions of Section 15 below.
If the term of this Sublease begins on other than the first day of a month
or ends on other than the last day of a month, rent will be appropriately
prorated.
4. Assignment and Subletting. ASPECT will not assign this Sublease,
sublease the Premises, pledge its interest in this Sublease or in the Premises
as security for any obligation of ASPECT (except any obligation owed to UXP), or
allow any other party to occupy the Premises without the written consent of UXP
except for the following entities:
Alliance for Choice in Education;
CARE;
PLEXUS;
ONSIGHT;and
CHx Capital, LLC
(collectively the "Permitted Occupants").
Any change in the controlling interest in any constituent of ASPECT, by
operation of law or otherwise, will be a transfer requiring the consent of UXP
under this Section. The Permitted Occupants shall not be tenants under this
Sublease. Any compensation or consideration paid by any of the Permitted
Occupants to ASPECT in excess of rent due UXP hereunder shall be paid by ASPECT
to UXP as Additional Rent.
5. ASPECT's Repair and Maintenance Responsibilities. ASPECT agrees to keep
the interior portion of the Premises in good repair and maintenance at all
times, including all glass and doors, except for repairs and maintenance which
are the responsibility of Prime Landlord pursuant to the Prime Lease, or which
are necessitated by the negligence of UXP or its agents or employees. ASPECT
will give UXP written notice of any repairs or maintenance to be performed by
UXP or Prime Landlord pursuant to this Section.
6. Services. UXP is not obligated to provide any Building services to
ASPECT except as specifically provided in this Sublease. ASPECT's sole source of
such services is Prime Landlord pursuant to the Prime Lease; however, UXP shall
make any reasonable actions that ASPECT believes are necessary to cause Prime
Landlord to comply with its obligations under the Prime Lease.
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7. Default. In the event of any default by ASPECT in the payment or
performance of any covenant, term or condition required of ASPECT under this
Sublease, including any provision of the Prime Lease governing or incorporated
in this Sublease, ASPECT will be deemed to be in breach of this Sublease, and
the remedies stated in the Prime Lease, as provided to Prime Landlord, will be
available to UXP in addition to those given by law. In the event UXP commits a
default under this Sublease and does not cure the same within 30 days after
notice from ASPECT, ASPECT may terminate this Sublease and/or may exercise such
other remedies as ASPECT may have at law or in equity. In the event of an
uncured default by UXP under the Prime Lease that would allow the Prime Landlord
to terminate the Prime Lease, ASPECT may cure the same within the cure period
stated under the Prime Lease and deduct the cost of such cure from Additional
Base Rent due UXP hereunder.
8. The Prime Lease. ASPECT will not cause or allow to be caused any default
under the Prime Lease. ASPECT will indemnify UXP against any claim, cause of
action, suit, loss, liability, damages, judgment and expenses (including
reasonable attorneys' fees and costs and charges for legal assistants) arising
out of any default under the Prime Lease caused by ASPECT. UXP will comply with
and perform all of its obligations under the Prime Lease and agrees not to
commit any act of omission that results in a surrender of the Premises or a
termination of the Prime Lease. UXP will indemnify ASPECT against any claim,
cause of action, suit, loss, liability, damages, judgment and expenses
(including reasonable attorneys' fees and costs and charges for legal
assistants) arising out of any default under the Prime Lease caused by UXP.
9. Security Deposit. ASPECT deposited with UXP the sum of $11,551.38
representing $3,850.46 for the June 2003 rent and $7,700.92 as a security
deposit under this Sublease. UXP will apply $3,850.46 as the rent for June 2003
and shall hold $7,700.92 as a security deposit under this Sublease, to secure
the payment and performance of all obligations binding ASPECT under this
Sublease. If ASPECT defaults in fulfilling these obligations, UXP may use all or
part of the security deposit for the payment of rent or amounts which UXP may
spend or become obligated to spend by reason of ASPECT's default, or for the
loss or damage UXP may suffer because of ASPECT's default. If UXP so uses any
portion of the security deposit, ASPECT will restore the security deposit to its
original amount within five days after written demand from UXP. UXP will not be
required to keep the security deposit separate from its general funds, and
ASPECT will not be entitled to interest on the security deposit. The security
deposit will not be a limitation on the damages or other rights of UXP under
this Sublease, or a payment of liquidated damages, or an advance payment of the
rent. If ASPECT pays the rent and performs all of its other obligations under
this Sublease, UXP will return the unused portion of the security deposit to
ASPECT within 60 days after the end of the term; provided, however, if UXP has
evidence that the right to the security deposit has been assigned to an assignee
of the Sublease, UXP will return the security deposit to that assignee. UXP may
deliver the security deposit to any purchaser or assignee of the interest of UXP
in the Premises and be discharged from further liability with respect to it.
10. Security Agreement. INTENTIONALLY OMITTED.
11. Quiet Enjoyment. UXP warrants that UXP has full right and authority to
execute and perform this Sublease and to grant the estate conveyed by this
Sublease. Upon
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ASPECT's payment of rent and performance of the covenants contained in this
Sublease, ASPECT will have quiet enjoyment of the Premises, subject to the Prime
Lease and all covenants, conditions, restrictions, encumbrances of record
against the Premises or the Building.
12. Signs. ASPECT will be permitted to maintain one sign in the hallway of
the Building at the entrance to the Premises and to list the Permitted Occupants
thereon, on the condition that UXP and Prime Landlord shall have approved the
design and size of the sign, and ASPECT will continue to pay for the maintenance
of, and, at the end of the term, removal of the sign.
13. Miscellaneous Provisions.
a. All improvements made by ASPECT including the demising walls must
be approved by the Prime Landlord pursuant to the Prime Lease and completed
pursuant to the Prime Lease at the sole cost of ASPECT, lien free.
b. ASPECT shall provide to UXP the same insurance required in Article
XVI of the Prime Lease and shall name UXP and the Prime Landlord as insureds.
c. ASPECT hereby makes the same indemnities and waivers for the
benefit of UXP as UXP made in Article XV of the Prime Lease.
d. In the event of litigation regarding this Sublease, the prevailing
party shall be entitled to recover its attorneys' fees and costs including
charges for legal assistants.
e. The provisions of this Sublease shall be binding upon, and shall
inure to the benefit of, the parties hereto and their successors and assigns.
f. The rights of the Permitted Occupants are derivative of ASPECT, and
UXP shall owe no duty to the Permitted Occupants. As a condition precedent to
taking occupancy, each Permitted Occupant shall execute and deliver to UXP an
agreement to indemnify and save UXP harmless regarding any damages caused by the
Permitted Occupant which results in a breach of the Prime Lease, and to
reimburse UXP for attorneys fees and costs including charges of legal assistants
in the event it becomes necessary to evict the Permitted Occupant or to recover
damages from the Permitted Occupant. Those attorneys fees and costs may be
recovered in any civil action to evict ASPECT or recover damages from ASPECT.
14. Brokers. UXP and ASPECT each warrants and represents to the other that
neither party has dealt with any broker in connection with this Sublease, and
each indemnifies the other against all claims and costs (including without
limitation reasonable attorneys' fees) incurred by the indemnified party in the
event of the breach by the other party of the warranty and representation set
forth in this paragraph.
15. Notices. Any notices under this Sublease will be written and given by
(i) personal delivery, (ii) registered or certified mail, return receipt
requested, (iii) overnight courier, with all charges prepaid; or (iv) telecopy
transmittal, to ASPECT at the Premises; and to UXP at its offices in the
Building. Notices will be deemed given and effective upon confirmed receipt on
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a business day. (For these purposes, the term "business day" means any day other
than a Saturday, Sunday, or holiday observed by banking institutions in
Colorado.) The parties may change their addresses for notice or may designate
additional addresses by notice pursuant to this Section. Each party hereto shall
promptly deliver to the other true and complete copies of any and all notices or
other material correspondence regarding the Prime Lease, this Sublease the
Building or the Premises during the term hereof.
UNITED STATES EXPLORATION, INC., a
Colorado corporation
By: /s/ Xxxxx X. Xxxxxx
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President
ASPECT ENERGY, LLC, a Colorado limited
liability company
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Executive Vice President
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