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Exhibit 10.7
INDEPENDENCE PLAZA
LEASE AGREEMENT
BETWEEN
AMSTAR DENVER, LTD.,
AS LANDLORD, AND
GLACIER DISTRIBUTION COMPANY, INC.,
AS TENANT
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TABLE OF CONTENTS
PAGE
1. BASIC LEASE DEFINITIONS, EXHIBITS AND ADDITIONAL DEFINITIONS........................... 1
1.1 Basic Lease Definitions.................................................. 1
1.2 Exhibits and Riders...................................................... 3
1.3 Additional Definitions................................................... 3
2. GRANT OF LEASE......................................................................... 5
2.1 Demise................................................................... 5
2.2 Quiet Enjoyment.......................................................... 5
2.3 Landlord and Tenant Covenants............................................ 5
3. RENT................................................................................... 5
3.1 Base Rent................................................................ 5
3.2 Additional Rent.......................................................... 5
3.3 Other Taxes.............................................................. 6
3.4 Terms of Payment......................................................... 7
3.5 Interest on Late Payments, Late Charge................................... 7
3.6 Right to Accept Payments................................................. 7
4. USE AND OCCUPANCY...................................................................... 7
4.1 Use...................................................................... 7
4.2 Compliance............................................................... 7
4.3 Occupancy................................................................ 8
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TABLE OF CONTENTS
(continued)
PAGE
5. SERVICES AND UTILITIES................................................................. 8
5.1 Landlord's Standard Services............................................. 8
5.2 Tenant's Utilities and Services.......................................... 9
5.2 Additional Services...................................................... 9
5.3 Interruption of Services................................................. 10
6. REPAIRS................................................................................ 10
6.1 Repairs Within the Premises.............................................. 10
6.2 Failure to Maintain Premises............................................. 11
6.3 Notice of Damage......................................................... 11
7. ALTERATIONS............................................................................ 11
7.1 Alterations by Tenant.................................................... 11
7.2 Alterations by Landlord.................................................. 11
8. LIENS.................................................................................. 12
9. INSURANCE.............................................................................. 12
9.1 Landlord's Insurance..................................................... 12
9.2 Tenant's Insurance....................................................... 12
9.3 Waiver of Subrogation.................................................... 13
10. DAMAGE OR DESTRUCTION.................................................................. 14
10.1 Termination Options...................................................... 14
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TABLE OF CONTENTS
(continued)
PAGE
10.2 Repair Obligations....................................................... 14
10.3 Rent Abatement........................................................... 14
11. WAIVERS AND INDEMNITIES................................................................ 15
11.1 Tenant's Waivers......................................................... 15
11.2 Landlord's Indemnity..................................................... 15
11.3 Tenant's Indemnity....................................................... 15
12. CONDEMNATION........................................................................... 15
12.1 Full Taking.............................................................. 15
12.2 Partial Taking........................................................... 15
12.3 Awards................................................................... 16
13. ASSIGNMENT AND SUBLETTING.............................................................. 16
13.1 Limitation............................................................... 16
13.2 Notice of Proposed Transfer; Landlord's Options.......................... 17
13.3 Consent Not to be Unreasonably Withheld.................................. 17
13.4 Form of Transfer......................................................... 17
13.5 Payments to Landlord..................................................... 17
13.6 Change of Ownership...................................................... 18
13.7 Effect of Transfers...................................................... 18
14. PERSONAL PROPERTY...................................................................... 18
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TABLE OF CONTENTS
(continued)
PAGE
14.1 Installation and Removal................................................. 18
14.2 Responsibility........................................................... 18
14.3 Landlord's Lien.......................................................... 18
15. END OF TERM............................................................................ 19
15.1 Surrender................................................................ 19
15.2 Holding Over............................................................. 19
16. ESTOPPEL CERTIFICATES.................................................................. 19
17. TRANSFERS OF LANDLORD'S INTEREST....................................................... 20
17.1 Sale, Conveyance and Assignment.......................................... 20
17.2 Effect of Sale, Conveyance or Assignment................................. 20
17.3 Subordination and Nondisturbance......................................... 20
17.4 Attornment............................................................... 20
18. RULES AND REGULATIONS.................................................................. 20
19. PARKING................................................................................ 20
20. TENANT'S DEFAULT AND LANDLORD'S REMEDIES............................................... 21
20.1 Default.................................................................. 21
20.2 Remedies................................................................. 22
21. LANDLORD'S DEFAULT AND TENANT'S REMEDIES............................................... 24
21.1 Default.................................................................. 24
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TABLE OF CONTENTS
(continued)
PAGE
21.2 Remedies................................................................. 24
22. SECURITY DEPOSIT....................................................................... 24
22.1 Amount................................................................... 24
22.2 Use and Restoration...................................................... 25
22.3 Transfers................................................................ 25
22.4 Refund................................................................... 25
23. BROKERS................................................................................ 25
24. LIMITATIONS ON LANDLORD'S LIABILITY.................................................... 25
25. NOTICES................................................................................ 26
26. MISCELLANEOUS.......................................................................... 26
26.1 Binding Effect........................................................... 26
26.2 Complete Agreement; Modification......................................... 26
26.3 Delivery for Examination................................................. 26
26.4 No Air Rights............................................................ 26
26.5 Enforcement Expenses..................................................... 26
26.6 Relocation of Tenant..................................................... 26
26.7 Building Name............................................................ 26
26.8 No Waiver................................................................ 27
26.9 Recording; Confidentiality............................................... 27
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TABLE OF CONTENTS
(continued)
PAGE
26.10 Captions................................................................. 27
26.11 Invoices................................................................. 27
26.12 Severability............................................................. 27
26.13 Jury Trial............................................................... 27
26.14 Authority to Bind........................................................ 27
26.15 Only Landlord/Tenant Relationship........................................ 27
26.16 Covenants Independent.................................................... 27
26.17 Governing Law............................................................ 27
26.18 Form of Execution Copy................................................... 27
27. LANDLORD'S OBLIGATIONS CONTINGENT...................................................... 28
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LEASE AGREEMENT
INDEPENDENCE PLAZA
DENVER, COLORADO
THIS LEASE AGREEMENT ("Lease") is entered into as of the Date,
and by and between the Landlord and Tenant, identified in Section 1.1 below.
1. BASIC LEASE DEFINITIONS, EXHIBITS AND ADDITIONAL DEFINITIONS.
1.1 BASIC LEASE DEFINITIONS. In this Lease, the
following defined terms have the meanings indicated:
(a) "Date" means February 11, 2001.
(b) "Landlord" means Amstar Denver, Ltd., a
Colorado limited partnership.
(c) "Tenant" means Glacier Distribution Company,
Inc., a Colorado corporation.
(d) "Premises" means those premises known as Suite
B197, located on the first floor of the Building and identified
on Exhibit A, which contain approximately 3,698 rentable square
feet. The Premises do not include any areas above the finished
ceiling or below the finished floor covering installed in the
Premises or any other areas not shown on Exhibit A as being part
of the Premises. Landlord reserves, for Landlord's exclusive use,
any of the following (other than those installed for Tenant's
exclusive use) that may be located in the Premises: janitor
closets, stairways and stairwells; fan, mechanical, electrical,
telephone and similar rooms; and elevator, pipe and other
vertical shafts, flues and ducts.
Landlord is delivering the Premises to Tenant in
their current as-is, where-is, with-all-faults condition. Tenant
acknowledges that Landlord has made no promises, and Landlord has
no obligation, to alter, modify or otherwise improve the Premises
or the Building, except specifically set forth in this Lease.
(e) "Use" means general office use only. In no
event will "general office use" be deemed to include, and the
Premises will not be used for, the operation of a retail travel
agency engaged in the business of (i) selling and issuing airline
or other transportation related tickets, (ii) selling package
travel tours, or (iii) making hotel and other travel-related
reservations on a retail basis to nonaffiliated third-party
customers.
(f) "Term" means the duration of this Lease, which
will be approximately forty-three (43) months, beginning on
September 1, 2000 (the "Commencement Date") and ending on March
31, 2004 (the "Expiration Date").
(g) "Base Rent" means the Rent payable according
to Section 3.1, which will be in an amount per month or portion
thereof during the Term as follows:
Period Amount of Base Rent Payable Per Month
------ -------------------------------------
9/1/2000 - 3/31/2001 $3,698.00
4/1/2001 - 3/31/2002 $4,314.33
4/1/2002 - 3/31/2003 $4,930.67
4/1/2003 - 3/31/2004 $5,547.00
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(h) "Tenant's Share" means, with respect to the
calculation of Additional Rent according to Section 3.2, 0.6458%.
(i) "Security Deposit" means $5,547.00.
(j) "Landlord's Building Address" means:
Suite 0000 Xxxxxxxxxxxx Xxxxx
0000 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Property Manager
(k) "Landlord's General Address" means:
Suite 0000 Xxxxxxxxxxxx Xxxxx
0000 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: General Counsel
(l) "Tenant's Notice Address" means,
for notices given before the Commencement
Date:
Glacier Distribution Company, Inc.
000 Xxxx 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
and for notices given after the Commencement
Date:
Glacier Distribution Company, Inc.
Xxxxx X000 Xxxxxxxxxxxx Xxxxx
0000 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
(m) "Tenant's Invoice Address" means:
Glacier Distribution Company, Inc.
Suite B197 Independence Plaza
0000 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Accounts Payable
(n) "Brokers" means the following brokers who will
be paid by Landlord: None; and the following brokers who will be
paid by Tenant: None.
(o) "Liability Insurance Amount" means
$1,000,000.00.
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1.2 EXHIBITS AND RIDERS. The Exhibits and Riders listed below are
attached to and incorporated in this Lease. In the event of any inconsistency
between such Exhibits or Riders and the terms and provisions of this Lease, the
terms and provisions of the Exhibits and Riders will control. The Exhibits to
this Lease are:
Exhibit A - Plan Delineating the Premises
Exhibit B - [Intentionally Omitted]
Exhibit C - [Intentionally Omitted]
Exhibit D - Rules and Regulations
1.3 ADDITIONAL DEFINITIONS. In addition to those terms defined in
Section 1.1 and other sections of this Lease, the following defined terms when
used in this Lease have the meanings indicated:
(a) "Additional Rent" means the Rent payable
according to Section 3.2.
(b) "Affiliates" of a party means that party's
parent, subsidiary and affiliated corporations and its and their
partners, venturers, directors, officers, shareholders, agents,
servants and employees.
(c) "Building" means the office and retail
building, parking garage and other improvements commonly known as
Independence Plaza, located on the Land and in which the Premises
are located.
(e) "Building Standard" means the scope and quality
of leasehold improvements, Building systems or Building services,
as the context may require, generally offered from time to time
to all office tenants of the Building.
(f) "Business Hours" means the hours from 7:00
a.m. to 6:00 p.m. on Monday through Friday and from 9:00 a.m. to
12:00 noon on Saturday, excluding statutory or legal holidays.
(g) "Common Areas" means certain interior and
exterior common and public areas located on the Land and in the
Building as may be designated by Landlord for the nonexclusive
use in common by Tenant, Landlord and other tenants, and their
employees, guests, customers, agents and invitees. If the
Building is connected to other buildings by underground tunnels
or elevated bridges over public streets, Common Areas will
include such bridges and tunnels; provided, however, that
Landlord and owners of such other buildings will have the right
in their sole discretion to adopt rules and regulations relating
to bridge and tunnel use.
(h) "Expenses" means the aggregate of any and all
costs (other than those expressly excluded below) incurred or
accrued during each calendar year according to generally accepted
accounting principles for operating, managing, administering,
equipping, securing, protecting, insuring, heating, cooling,
ventilating, lighting, repairing, replacing, renewing, cleaning,
maintaining, decorating, inspecting, and providing water, sewer
and other energy and utilities to, the Land, Building and Common
Areas; management fees calculated according to the management
agreement between Landlord and its managing agent; fees and
expenses (including reasonable attorneys' fees) incurred in
contesting the validity of any Laws that would cause an increase
in Expenses; depreciation on personal property and moveable
equipment which is or should be capitalized on Landlord's books;
and costs (whether capital or not) that are incurred in order to
conform to changes subsequent to the Date in any Laws, or that
are intended to reduce Expenses or the rate of increase in
Expenses (such costs will be charged to Expenses in annual
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installments over the useful life of the items for which such
costs are incurred [in the case of items required by changes in
Laws] or over the period Landlord reasonably estimates that it
will take for the savings in Expenses achieved by such items to
equal their cost [in the case of items intended to reduce
Expenses or their rate of increase], and in either case together
with interest, each calendar year such costs are charged to
Expenses, on the unamortized balance at the average Prime Rate in
effect during such calendar year). Expenses will not include (1)
mortgage principal or interest; (2) ground lease payments; (3)
leasing commissions; (4) costs of advertising space for lease in
the Building; (5) costs for which Landlord is reimbursed by
insurance proceeds or from tenants of the Building (other than
such tenants' regular contributions to Expenses); (6) any
depreciation or capital expenditures (except as expressly
provided above); (7) legal fees incurred for negotiating leases
or collecting rents; (8) amounts attributable solely to the
occupancy of space in the Building by tenants other than Tenant
(such as utilities directly related to such space); and (9) costs
directly and solely related to the maintenance and operation of
the entity that constitutes the Landlord, such as accounting fees
incurred solely for the purpose of reporting Landlord's financial
condition. For each calendar year during the Term, the amount by
which those Expenses that vary with occupancy (such as cleaning
costs and utilities) would have increased had the Building been
ninety-five percent (95%) occupied and operational and had all
Building services been provided to all tenants will be reasonably
determined and the amount of such increase will be included in
Expenses for such calendar year.
(i) "Land" means the real property located at 0000
00xx Xxxxxx, Xxxxxx, Xxxxxxxx, less any portions that may be
conveyed separately from the Building by Landlord from time to
time.
(j) "Laws" means any and all present or future
federal, state or local laws, statutes, ordinances, rules,
regulations or orders of any and all governmental or
quasi-governmental authorities having jurisdiction.
(k) "Prime Rate" means the rate of interest
announced from time to time by Xxxxx Fargo Bank or any successor
to it, as its prime rate. If Xxxxx Fargo Bank or any successor to
it ceases to announce a prime rate, Landlord will designate a
reasonably comparable financial institution for purposes of
determining the Prime Rate.
(l) "Rent" means the Base Rent, Additional Rent
and all other amounts required to be paid by Tenant under this
Lease.
(m) "Taxes" means the amount incurred or accrued
during each calendar year according to generally accepted
accounting principles for: all ad valorem real and personal
property taxes and assessments, special or otherwise, levied upon
or with respect to the Land or Building, the personal property
used in operating the Building, and the rents and additional
charges payable by tenants of the Building, and imposed by any
taxing authority having jurisdiction; all taxes, levies and
charges which may be assessed, levied or imposed in replacement
of, or in addition to, all or any part of ad valorem real or
personal property taxes or assessments as revenue sources, and
which in whole or in part are measured or calculated by or based
upon the Land or Building, the leasehold estate of Landlord or
the tenants of the Building, or the rents and other charges
payable by such tenants; capital and place-of-business taxes, and
other similar taxes assessed relating to the Common Areas; and
any reasonable expenses incurred by Landlord in attempting to
reduce or avoid an increase in Taxes, including, without
limitation, reasonable legal fees and costs. Taxes will not
include any net income taxes of Landlord.
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2. GRANT OF LEASE.
2.1 DEMISE. Subject to the terms, covenants, conditions and
provisions of this Lease, Landlord leases to Tenant and Tenant leases from
Landlord the Premises, together with the nonexclusive right to use the Common
Areas, for the Term.
2.2 QUIET ENJOYMENT. Landlord covenants that during the Term,
Tenant will have quiet and peaceable possession of the Premises by, through and
under Landlord, subject to the terms, covenants, conditions and provisions of
this Lease, and Landlord will not disturb such possession except as expressly
provided in this Lease.
2.3 LANDLORD AND TENANT COVENANTS. Landlord covenants to observe
and perform all of the terms, covenants and conditions applicable to Landlord in
this Lease. Tenant covenants to pay the Rent when due, and to observe and
perform all of the terms, covenants and conditions applicable to Tenant in this
Lease.
3. RENT.
3.1 BASE RENT. Commencing on the Commencement Date and then
throughout the Term, Tenant agrees to pay Landlord Base Rent according to the
following provisions. Base Rent during each month (or portion of a month)
described in Section 1.1(g) will be payable in equal monthly installments for
such month (or portion), in advance, on or before the first day of each and
every month during the Term. However, if the Term commences on other than the
first day of a month or ends on other than the last day of a month, Base Rent
for such month will be appropriately adjusted on a prorated basis.
3.2 ADDITIONAL RENT. Tenant agrees to pay Landlord, as Additional
Rent, in the manner provided below for each calendar year that contains any part
of the Term, Tenant's Share of (i) the amount of Expenses for such calendar
year; and (ii) the amount of Taxes for such calendar year.
(a) Estimated Payments. Prior to or as soon as
practicable after the beginning of each calendar year, Landlord
will notify Tenant of Landlord's estimate of Tenant's Share of
Expenses and Taxes for the ensuing calendar year. On or before
the first day of each month during the ensuing calendar year,
Tenant will pay to Landlord, in advance, one twelfth (1/12th) of
such estimated amounts, provided that until such notice is given
with respect to the ensuing calendar year, Tenant will continue
to pay on the basis of the prior calendar year's estimate until
the month after the month in which such notice is given. In the
month Tenant first pays based on Landlord's new estimate, Tenant
will pay to Landlord one twelfth (1/12th) of the difference
between the new estimate and the prior year's estimate for each
month which has elapsed since the beginning of the current
calendar year. If at any time or times it appears to Landlord
that Tenant's Share of Expenses or Tenant's Share of Taxes for
the then-current calendar year will vary from Landlord's estimate
by more than five percent (5%), Landlord may, by notice to
Tenant, revise its estimate for such year and subsequent payments
by Tenant for such year will be based upon the revised estimate.
(b) Annual Settlement. As soon as practicable after
the close of each calendar year, Landlord will deliver to Tenant
its statement of Tenant's Share of Expenses and Taxes for such
calendar year. If on the basis of such statement Tenant owes an
amount that is less than the estimated payments previously made
by Tenant for such calendar year, Landlord will either refund
such excess amount to Tenant or credit such excess amount against
the next payment(s), if any, due from Tenant to Landlord. If on
the basis of such statement Tenant owes an amount that is more
than the estimated payments previously made by Tenant for such
calendar year, Tenant
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will pay the deficiency to Landlord within thirty (30) days after
the delivery of such statement. If this Lease commences on a day
other than the first day of a calendar year or terminates on a
day other than the last day of a calendar year, Tenant's Share of
Expenses and Taxes applicable to the calendar year in which such
commencement or termination occurs will be prorated on the basis
of the number of days within such calendar year that are within
the Term.
(c) Final Payment. Tenant's obligation to pay the
Additional Rent provided for in this Section 3.2 which is accrued
but not paid for periods prior to the expiration or early
termination of the Term will survive such expiration or early
termination. Prior to or as soon as practicable after the
expiration or early termination of the Term, Landlord may submit
an invoice to Tenant stating Landlord's estimate of the amount by
which Tenant's Share of Expenses and Taxes through the date of
such expiration or early termination will exceed Tenant's
estimated payments of Additional Rent for the calendar year in
which such expiration or termination has occurred or will occur.
Tenant will pay the amount of any such excess to Landlord within
thirty (30) days after the date of Landlord's invoice. In the
event that Tenant is entitled to a refund pursuant to this
Section 3.2, Landlord's obligation to refund any such amounts
shall survive termination or expiration of the Term.
3.3 OTHER TAXES. Tenant will reimburse Landlord upon demand for
any and all taxes payable by Landlord (other than net income taxes and taxes
included in Taxes) whether or not now customary or within the contemplation of
Landlord and Tenant: (a) 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; (b) upon or measured by Rent; (c) 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; and (d) upon this transaction or any document to which Tenant is a
party creating or transferring an interest or an estate in the Premises. If it
is not lawful for Tenant to reimburse Landlord, the Base Rent payable to
Landlord under this Lease will be revised to yield to Landlord the same net
rental after the imposition of any such tax upon Landlord as would have been
payable to Landlord prior to the imposition of any such tax.
3.4 TERMS OF PAYMENT. All Base Rent, Additional Rent and other
Rent will be paid to Landlord in lawful money of the United States of America,
at Landlord's Building Address or to such other person or at such other place as
Landlord may from time to time designate in writing, without notice or demand
and without right of deduction, abatement or set-off, except as otherwise
expressly provided in this Lease.
3.5 INTEREST ON LATE PAYMENTS, LATE CHARGE. All amounts payable
under this Lease by Tenant to Landlord, if not paid when due, will bear interest
from the due date until paid at the lesser of the highest interest rate
permitted by law or five percent (5%) in excess of the then-current Prime Rate.
Landlord, at Landlord's option, in addition to past due interest, may charge
Tenant a late charge for all payments more than five (5) days past due, equal to
the greater of five percent (5%) of the amount of said late payment or the
maximum amount permitted by law.
3.6 RIGHT TO ACCEPT PAYMENTS. No receipt by Landlord of an amount
less than Tenant's full amount due will be deemed to be other than payment "on
account", nor will any endorsement or statement on any check or any accompanying
letter effect or evidence an accord and satisfaction. Landlord may accept such
check or payment without prejudice to Landlord's right to recover the balance or
pursue any right of Landlord. No payments by Tenant to Landlord after the
expiration or other termination of the Term, or after the giving of any notice
(other than a demand for payment of money) by Landlord to Tenant, will
reinstate, continue or extend the Term or make ineffective any notice given to
Tenant prior to such payment. After notice or commencement of a suit, or after
final judgment granting
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Landlord possession of the Premises, Landlord may receive and collect any sums
of Rent due under this Lease, and such receipt will not void any notice or in
any manner affect any pending suit or any judgment obtained.
4. USE AND OCCUPANCY.
4.1 USE. Tenant agrees to use and occupy the Premises only for
the Use described in Section 1.1(e), or for such other purpose as Landlord
expressly authorizes in writing.
4.2 COMPLIANCE.
(a) Tenant agrees to use the Premises in a safe,
careful and proper manner, and to comply with all Laws applicable
to Tenant's use, occupancy or alteration of the Premises or the
condition of the Premises resulting from such use, occupancy or
alteration, at Tenant's sole cost and expense.
(b) Landlord and Tenant agree that, during the
Term, each will comply with all Laws governing, and all
procedures established by Landlord for, the use, abatement,
removal, storage, disposal or transport of any substances,
chemicals or materials declared to be, or regulated as, hazardous
or toxic under any applicable Laws ("Hazardous Substances") and
any required or permitted alteration, repair, maintenance,
restoration, removal or other work in or about the Premises,
Building or Land that involves or affects any Hazardous
Substances. Except as may be expressly permitted by Landlord in
writing, Tenant will not store, use, release, produce, process or
dispose in, on or about, or transport to or from, the Premises,
Building or Land any Hazardous Substances. Each party will
indemnify and hold the other and the other's Affiliates harmless
from and against any and all claims, costs and liabilities
(including reasonable attorneys' fees) arising out of or in
connection with any breach by such party of its covenants under
this Section 4.2(b). The parties' obligations under this Section
4.2(b) will survive the expiration or early termination of the
Term.
4.3 OCCUPANCY. Tenant will not do or permit anything which
obstructs or interferes with other tenants' rights or with Landlord's providing
Building services, or which injures or annoys other tenants. Tenant will not
cause, maintain or permit any nuisance in or about the Premises and will keep
the Premises free of debris, and anything of a dangerous, noxious, toxic or
offensive nature or which could create a fire hazard or undue vibration, heat or
noise. If any item of equipment, building material or other property brought
into the Building by Tenant or on Tenant's request causes a dangerous, noxious,
toxic or offensive effect (including an environmental effect) and in Landlord's
reasonable opinion such effect will not be permanent but will only be temporary
and is able to be eliminated, then Tenant will not be required to remove such
item, provided that Tenant promptly and diligently causes such effect to be
eliminated, pays for all costs of elimination and indemnifies Landlord against
all liabilities arising from such effect. Tenant will not make or permit any use
of the Premises which may jeopardize any insurance coverage, increase the cost
of insurance or require additional insurance coverage. If by reason of Tenant's
failure to comply with the provisions of this Section 4.3, (a) any insurance
coverage is jeopardized, then Landlord will have the option to terminate this
Lease; or (b) insurance premiums are increased, then Landlord may require Tenant
to immediately pay Landlord as Rent the amount of the increase in insurance
premiums.
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5. SERVICES AND UTILITIES.
5.1 LANDLORD'S STANDARD SERVICES. During the Term, Landlord will
operate and maintain the Building in compliance with all applicable Laws and
according to those standards from time to time prevailing for comparable office
buildings in the Central Business District of Denver, Colorado. Landlord will
provide the following services according to such standards, the costs of which
will be included in Expenses to the extent provided in Section 1.3(g):
(a) repair, maintenance and replacement of the
Common Areas, all structural elements of the Building and all
general mechanical, plumbing and electrical systems installed in
the Building, but excluding those portions of any mechanical,
plumbing or electrical systems that exceed Building Standard and
exclusively serve the Premises;
(b) heating, ventilating and air conditioning for
the interior Common Areas during Business Hours, at temperatures
and in amounts as may be reasonably required for comfortable use
and occupancy under normal business office operations;
(c) janitorial services to the Premises and Common
Areas;
(d) passenger elevators for access to and from the
floor(s) on which the Premises are located;
(e) toilet facilities, including necessary
washroom supplies sufficient for Tenant's normal use;
(f) electric lighting for all Common Areas that
require electric light during the day or are open at night,
including replacement of tubes and ballasts in lighting fixtures;
and
(i) replacement of tubes and ballasts in those
Building Standard lighting fixtures installed in the Premises.
5.2 ADDITIONAL SERVICES.
(a) If Tenant requires heating, ventilating or air
conditioning for the Premises during hours other than Business
Hours, Landlord will furnish the same for the hours specified in
a request from Tenant, provided the request is made in the manner
reasonably designated by Landlord for such requests from time to
time and at least forty-eight (48) hours prior to the time the
additional service is required. Tenant will pay for such
additional services at the standard hourly rate reasonably
determined by Landlord from time to time.
(b) If Tenant installs any machines, equipment or
devices in the Premises that do not constitute Customary Office
Equipment and such machines, equipment or devices cause the
temperature in any part of the Premises to exceed the temperature
the Building's mechanical system would be able to maintain in the
Premises were it not for such machines, equipment or devices,
then Landlord reserves the right to install supplementary air
conditioning units in the Premises, and Tenant will pay Landlord
all costs of installing, operating and maintaining such
supplementary units.
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(c) If Tenant requires any janitorial or cleaning
services in excess of the amounts provided by Landlord according
to Section 5.1 (such as cleaning services beyond normal office
janitorial services for kitchens, computer rooms or other special
use areas), Landlord will provide such excess services to Tenant
within a reasonable period after Tenant's request made to
Landlord's Building manager ("Property Manager"), provided that
such excess services are available from Landlord's regular
janitorial or cleaning contractor. Tenant will pay the cost of
such excess services. Landlord will also provide, within a
reasonable period after Tenant's request made to the Property
Manager, at Tenant's cost and to the extent available to
Landlord, replacement of bulbs, tubes or ballasts in any
non-Building Standard lighting fixtures in the Premises.
(d) Tenant will pay as Rent, within ten(10) days
after the date of Landlord's invoice, all costs which may become
payable by Tenant to Landlord under this Section 5.2.
5.3 INTERRUPTION OF SERVICES. If any of the services to be
provided by Landlord in accordance with this Section 5 are interrupted or
stopped, Landlord will use due diligence to resume the service; provided,
however, no irregularity or stoppage of any of these services will create any
liability for Landlord (including, without limitation, any liability for damages
to Tenant's personal property caused by any such irregularity or stoppage),
constitute an actual or constructive eviction or, except as expressly provided
below, cause any abatement of the Rent payable under this Lease or in any manner
or for any purpose relieve Tenant from any of its obligations under this Lease.
If, due to reasons within Landlord's reasonable control, any of the services
required to be provided by Landlord under this Section 5 should become
unavailable and should remain unavailable for a period in excess of sixty (60)
hours after notice of such unavailability from Tenant to Landlord, and if such
unavailability should render all or any portion of the Premises untenantable,
then commencing upon the expiration of such sixty (60) hour period, Tenant's
Rent will equitably xxxxx in proportion to the portion of the Premises so
rendered untenantable for so long as such services remain unavailable for such
reasons. Without limiting those reasons for an irregularity or stoppage of
services that may be beyond Landlord's control, any such irregularity or
stoppage that is required in order to comply with any Laws will be deemed caused
by a reason beyond Landlord's control.
6. REPAIRS.
6.1 REPAIRS WITHIN THE PREMISES. Subject to the terms of Section
4, 5.1(a), 10 and 12, and except to the extent Landlord is required or elects to
perform or pay for certain maintenance or repairs according to those sections,
Tenant will, at Tenant's own expense: (a) at all times during the Term, maintain
the Premises, all fixtures and equipment in the Premises and those portions of
any mechanical, plumbing or electrical systems that exceed Building Standard and
exclusively serve the Premises in good order and repair and in a condition that
complies with all applicable Laws; and (b) promptly and adequately repair all
damage to the Premises and replace or repair all of such fixtures, equipment and
portions of the mechanical, plumbing or electrical systems that are damaged or
broken, all under the supervision and subject to the prior reasonable approval
of Landlord. All work done by Tenant or its contractors (which contractors will
be subject to Landlord's reasonable approval) will be done in a first-class
workmanlike manner using only grades of materials at least equal in quality to
Building Standard materials and will comply with all insurance requirements and
all applicable Laws.
6.2 FAILURE TO MAINTAIN PREMISES. If Tenant fails to perform any
of its obligations under Section 6.1, then Landlord may perform such obligations
and Tenant will pay as Rent to Landlord the cost of such performance, including
an amount sufficient to reimburse Landlord for overhead and supervision, within
ten (10) days after the date of Landlord's invoice. For purposes of performing
such obligations, or to inspect the Premises, Landlord may enter the Premises
upon not less than
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twenty-four (24) hours' prior notice to Tenant (except in cases of actual or
suspected emergency, in which case no prior notice will be required) without
liability to Tenant for any loss or damage incurred as a result of such entry,
provided that Landlord will take reasonable steps in connection with such entry
to minimize any disruption to Tenant's business or its use of the Premises.
6.3 NOTICE OF DAMAGE. Tenant will notify Landlord promptly after
Tenant learns of (a) any fire or other casualty in the Premises; (b) any damage
to or defect in the Premises, including the fixtures and equipment in the
Premises, for the repair of which Landlord might be responsible; and (c) any
damage to or defect in any parts or appurtenances of the Building's sanitary,
electrical, heating, air conditioning, elevator or other systems located in or
passing through the Premises.
7. ALTERATIONS.
7.1 ALTERATIONS BY TENANT. Tenant may, from time to time, at its
own expense make changes, additions and improvements to the Premises to better
adapt the same to its business, provided that any such change, addition or
improvement will (a) comply with all applicable Laws; (b) be made only with the
prior written consent of Landlord, which consent will not be unreasonably
withheld; (c) equal or exceed Building Standard; and (d) be carried out only by
persons selected by Tenant and approved in writing by Landlord, who will if
required by Landlord deliver to Landlord before commencement of the work
performance and payment bonds. Tenant will maintain, or will cause the persons
performing any such work to maintain, worker's compensation insurance and public
liability and property damage insurance (with Landlord named as an additional
insured), in amounts, with companies and in a form reasonably satisfactory to
Landlord, which insurance will remain in effect during the entire period in
which the work will be carried out. If requested by Landlord, Tenant will
deliver to Landlord proof of all such insurance. Tenant will promptly pay, when
due, the cost of all such work and, upon completion, Tenant will deliver to
Landlord, to the extent not previously received by Landlord, evidence of
payment, contractors' affidavits and full and final waivers of all liens for
labor, services or materials. Tenant will also pay any increase in property
taxes on, or fire or casualty insurance premiums for, the Building attributable
to such change, addition or improvement and the cost of any modifications to the
Building outside the Premises that are required to be made in order to make the
change, addition or improvement to the Premises. Tenant, at its expense, will
have promptly prepared and submitted to Landlord reproducible as-built plans of
any such change, addition or improvement upon its completion. All changes,
additions and improvements to the Premises, whether temporary or permanent in
character, made or paid for by Landlord or Tenant will, without compensation to
Tenant, become Landlord's property upon installation. If at the time Landlord
consents to their installation, Landlord requests or approves the removal by
Tenant of any such changes, additions or improvements upon termination of this
Lease, Tenant will remove the same upon termination of this Lease as provided in
Section 15.1. All other changes, additions and improvements will remain
Landlord's property upon termination of this Lease and will be relinquished to
Landlord in good condition, ordinary wear and tear excepted.
7.2 ALTERATIONS BY LANDLORD. Landlord may from time to time make
repairs, changes, additions and improvements to the Building, Common Areas and
those Building systems necessary to provide the services described in Section 5,
and for such purposes, Landlord may enter the Premises upon not less than
twenty-four (24) hours' prior notice to Tenant (except in cases of actual or
suspected emergency, in which case no prior notice will be required) without
liability to Tenant for any loss or damage incurred as a result of such entry,
provided that in doing so Landlord will not disturb or interfere with Tenant's
use of the Premises and operation of its business any more than is reasonably
necessary in the circumstances and will repair any damage to the Premises caused
by such entry. No permanent change, addition or improvement made by Landlord
will materially impair access to the Premises.
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8. LIENS. Tenant agrees to pay before delinquency all costs for work, services
(including, without limitation, utility services obtained directly by Tenant, as
provided in Section 5.2 hereof) or materials furnished to Tenant for the
Premises, the nonpayment of which could result in any lien against the Land or
Building. Tenant will keep title to the Land and Building free and clear of any
such lien. Tenant will immediately notify Landlord of the filing of any such
lien or any pending claims or proceedings relating to any such lien and will
indemnify and hold Landlord harmless from and against all loss, damages and
expenses (including reasonable attorneys' fees) suffered or incurred by Landlord
as a result of such lien, claims and proceedings. In case any such lien
attaches, Tenant agrees to cause it to be immediately released and removed of
record (failing which Landlord may do so at Tenant's sole expense), unless
Tenant has a good faith dispute as to such lien in which case Tenant may contest
such lien by appropriate proceedings so long as Tenant deposits with Landlord a
bond or other security in an amount reasonably acceptable to Landlord which may
be used by Landlord to release such lien if Tenant's contest is abandoned or is
unsuccessful. Upon final determination of any permitted contest, Tenant will
immediately pay any judgment rendered and cause the lien to be released.
9. INSURANCE.
9.1 LANDLORD'S INSURANCE. During the Term, Landlord will provide
and keep in force the following insurance:
(a) comprehensive or commercial general liability
insurance relating to Landlord's operation of the Building,
including coverage for personal and bodily injury and death, and
damage to others' property;
(b) "all risk" property insurance relating to the
Building (but excluding Tenant's fixtures, furnishings,
equipment, personal property, documents, files and work products
and all leasehold improvements in the Premises that were paid for
by Tenant; for purposes of this Section 9.1(b) and Section 9.2(b)
below, any leasehold improvements paid for with an allowance
provided by Landlord, regardless of whether a portion of the Base
Rent is intended to reimburse Landlord for such allowance, will
be deemed paid for by Landlord);
(c) loss of rental income insurance or loss of
insurable gross profits commonly insured against by prudent
landlords; and
(d) such other insurance (including boiler and
machinery insurance) as Landlord reasonably elects to obtain or
any Building mortgagee requires.
Insurance effected by Landlord under this Section 9.1 will be in amounts which
Landlord from time to time reasonably determines sufficient or any Building
mortgagee requires; will be subject to such deductibles and exclusions as
Landlord reasonably determines; and will otherwise be on such terms and
conditions as Landlord from time to time reasonably determines sufficient.
9.2 TENANT'S INSURANCE. During the Term, Tenant will provide and
keep in force the following insurance:
(a) comprehensive or commercial general liability
insurance relating to Tenant's business (carried on, in or from
the Premises) and Tenant's use and occupancy, for personal and
bodily injury and death, and damage to others' property, with
limits of not less than the Liability Insurance Amount for any
one accident or occurrence;
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(b) "all risk" property insurance (including
standard extended endorsement perils, leakage from fire
protective devices and other water damage) relating to Tenant's
fixtures, furnishings, equipment, inventory, stock-in-trade and
all leasehold improvements in the Premises that were paid for by
Tenant on a full replacement cost basis in amounts sufficient to
prevent Tenant from becoming a coinsurer and subject only to such
deductibles and exclusions as Landlord may reasonably approve;
and
(c) if any boiler or machinery is operated in the
Premises, boiler and machinery insurance.
Landlord will be named as an additional insured in the policy described in
Section 9.2(a), which will include cross liability and severability of interests
clauses and will be on an "occurrence" (and not a "claims made") form. Landlord
will be named as a loss payee, as its interest may appear, in the policies
described in Section 9.2(b) and (c), and such policies will permit the release
of Landlord from certain liability under Section 11.1. Tenant's insurance
policies will otherwise be upon such terms and conditions as Landlord from time
to time reasonably requires. Tenant will provide Landlord, on or before the
Commencement Date and at least ten (10) days before the expiration date of
expiring policies, with such copies of either current policies or certificates,
or other proofs, as may be reasonably required to establish Tenant's insurance
coverage in effect, and each certificate shall provide that Landlord shall
receive ten (10) days' prior written notice for cancellation for non-payment of
premium and thirty (30) days' prior written notice for cancellation for
non-renewal. If Tenant fails to insure or pay premiums, or to file satisfactory
proof as required, Landlord may, upon a minimum of two (2) business days'
notice, effect such insurance and recover from Tenant on demand any premiums
paid.
9.3 WAIVER OF SUBROGATION. Landlord and Tenant agree that all
insurance required to be carried under Sections 9.1(b), (c) and (d) and 9.2(b)
and (c) and other property damage insurance which may be carried by either of
them will be endorsed with a clause providing that any release from liability
of, or waiver of claim for, recovery from the other party entered into in
writing by the insured thereunder prior to any loss or damage shall not affect
the validity of such policy or the right of the insured to recover under such
policy, and providing further that the insurer waives all rights of subrogation
which such insurer might have against the other party. Without limiting any
release or waiver of liability or recovery set forth elsewhere in this Lease,
and notwithstanding anything in this Lease which may appear to be to the
contrary, each of the parties hereto waives all claims for recovery from the
other party for any loss or damage to any of its property insured (or required
to be insured) under valid and collectible insurance policies to the extent of
any recovery collectible (or would have been collectible if such insurance had
been maintained) under such insurance policies. Notwithstanding the foregoing or
anything contained in this Lease to the contrary, any release or any waiver of
claims shall not be operative, nor shall the foregoing endorsements be required,
in any case in which the effect of such release or waiver is to invalidate
insurance coverage or invalidate the right of the insured to recover thereunder
or to increase the cost thereof (provided that in the case of increased cost,
the other party shall have the right, within ten (10) days following written
notice, to pay such increased cost in order to keep such release or waiver in
full force and effect).
10. DAMAGE OR DESTRUCTION.
10.1 TERMINATION OPTIONS. If the Premises or the Building are
damaged by fire or other casualty Landlord will, promptly after learning of such
damage, notify Tenant in writing of the time necessary to repair or restore such
damage, as estimated by Landlord's architect, engineer or contractor. If such
estimate states that repair or restoration of all of such damage that was caused
to the Premises or to any other portion of the Building necessary for Tenant's
occupancy cannot be completed within one hundred eighty (180) days from the date
of such damage (or within thirty (30) days from the date of such
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damage if such damage occurred within the last twelve(12) months of the Term),
then Tenant will have the option to terminate this Lease. If such estimate
states that repair or restoration of all of such damage that was caused to the
Building cannot be completed within one hundred eighty (180) days from the date
of such damage, or if such damage occurred within the last twelve (12) months of
the Term and such estimate states that repair or restoration of all such damage
that was caused to the Premises or to any other portion of the Building
necessary for Tenant's occupancy cannot be completed within thirty (30) days
from the date of such damage, or if such damage is not insured against by the
insurance policies required to be maintained by Landlord according to Section
9.1, then Landlord will have the option to terminate this Lease. Any option to
terminate granted above must be exercised by written notice to the other party
given within ten (10) days after Landlord delivers to Tenant the notice of
estimated repair time. If either party exercises its option to terminate this
Lease, the Term will expire and this Lease will terminate ten (10) days after
notice of termination is delivered; provided, however, that Rent for the period
commencing on the date of such damage until the date this Lease terminates will
be reduced to the reasonable value of any use or occupation of the Premises by
Tenant during such period and Landlord will be entitled to all proceeds of the
insurance policy described in Section 9.2(b) applicable to any damaged leasehold
improvements in the Premises.
10.2 REPAIR OBLIGATIONS. If the Premises or the Building are
damaged by fire or other casualty and neither party terminates this Lease
according to Section 10.1, then Landlord will repair and restore such damage
with reasonable promptness, subject to delays for insurance adjustments and
delays caused by matters beyond Landlord's control. Landlord will have no
liability to Tenant and Tenant will not be entitled to terminate this Lease if
such repairs and restoration are not in fact completed within the estimated time
period, provided that Landlord promptly commences and diligently pursues such
repairs and restoration to completion. In no event will Landlord be obligated to
repair, restore or replace any of the property required to be insured by Tenant
according to Section 9.2. Tenant agrees to repair, restore or replace, at its
expense, all leasehold improvements required to be insured by Tenant according
to Section 9.2(b) as soon as possible after the date of damage, to at least the
condition existing prior to their damage, using materials at least equal to
Building Standard. However, in connection with its repair and restoration of
such damage, Landlord may, at its option, elect to repair and restore the
damage, if any, caused to any or all of such leasehold improvements required to
be insured by Tenant. If Landlord makes such election, Landlord will be entitled
to all proceeds of the insurance policy described in Section 9.2(b) applicable
to the leasehold improvements Landlord so elects to repair or restore and may
limit its repair or restoration of such leasehold improvements to that which may
be paid for in full by such proceeds.
10.3 RENT ABATEMENT. If any fire or casualty damage renders the
Premises untenantable and if this Lease is not terminated according to Section
10.1, then Rent will xxxxx beginning on the date of such damage. Such abatement
will end on the date Landlord has substantially completed the repairs and
restoration Landlord is required to perform according to Section 10.2 and Tenant
has had a reasonable period of time to substantially complete any repairs and
restoration Tenant is required to perform according to Section 10.2. Such
abatement will be in an amount bearing the same ratio to the total amount of
Rent for such period as the untenantable portion of the Premises bears to the
entire Premises. In no event will Landlord be liable for any inconvenience or
annoyance to Tenant or injury to the business of Tenant resulting in any way
from damage caused by fire or other casualty or the repair of such damage,
provided however that, to the extent Tenant remains in possession of a portion
of the Premises, Landlord will take all reasonable steps to minimize the
disruption to Tenant's business and use of such portion of the Premises during
the period of repair.
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11. WAIVERS AND INDEMNITIES.
11.1 TENANT'S WAIVERS. Except to the extent caused by the willful
or negligent act or omission or breach of this Lease by Landlord or anyone for
whom Landlord is legally responsible, Landlord and its Affiliates will not be
liable or in any way responsible for, and Tenant waives all claims against
Landlord and its Affiliates for, any loss, injury or damage suffered by Tenant
or others relating to (a) loss or theft of, or damage to, property of Tenant or
others; (b) injury or damage to persons or property resulting from fire,
explosion, falling plaster, escaping steam or gas, electricity, water, rain or
snow, or leaks from any part of the Building or from any pipes, appliances or
plumbing, or from dampness; or (c) damage caused by other tenants, occupants or
persons in the Premises or other premises in the Building, or caused by the
public or by construction of any private or public work. Landlord and its
Affiliates will not be liable or in any way responsible to Tenant for, and
Tenant waives all claims against Landlord and its Affiliates for, any loss,
injury or damage that is insured or required to be insured by Tenant under
Section 9.2(b) or (c), so long as such loss, injury or damage results from or in
connection with this Lease or Landlord's operation of the Building.
11.2 LANDLORD'S INDEMNITY. Subject to Sections 5.3 and 11.1 and
except to the extent caused by the willful or negligent act or omission or
breach of this Lease by Tenant or anyone for whom Tenant is legally responsible,
Landlord will indemnify and hold Tenant harmless from and against any and all
liability, loss, claims, demands, damages or expenses (including reasonable
attorneys' fees) due to or arising out of any willful or negligent act or
omission or breach of this Lease by Landlord or anyone for whom Landlord is
legally responsible. Landlord's obligations under this Section 11.2 will survive
the expiration or early termination of the Term.
11.3 TENANT'S INDEMNITY. Except to the extent caused by the
willful or negligent act or omission or breach of this Lease by Landlord or
anyone for whom Landlord is legally responsible, Tenant will indemnify and hold
Landlord harmless from and against any and all liability, loss, claims, demands,
damages or expenses (including reasonable attorneys' fees) due to or arising out
of any accident or occurrence on or about the Premises (including, without
limitation, accidents or occurrences resulting in injury, death, property damage
or theft) or any willful or negligent act or omission of or breach of this Lease
by Tenant or anyone for whom Tenant is legally responsible. Tenant's obligations
under this Section 11.3 will survive the expiration or early termination of the
Term.
12. CONDEMNATION.
12.1 FULL TAKING. If all or substantially all of the Building or
Premises are taken for any public or quasi-public use under any applicable Laws
or by right of eminent domain, or are sold to the condemning authority in lieu
of condemnation, then this Lease will terminate as of the date when the
condemning authority takes physical possession of the Building or Premises.
12.2 PARTIAL TAKING.
(a) Landlord's Termination of Lease. If only part
of the Building or Premises is thus taken or sold, and if after
such partial taking, in Landlord's reasonable judgment,
alteration or reconstruction is not economically justified, then
Landlord (whether or not the Premises are affected) may terminate
this Lease by giving written notice to Tenant within sixty (60)
days after the taking.
(b) Tenant's Termination of Lease. If over twenty
percent (20%) of the Premises is thus taken or sold and Landlord
is unable to provide Tenant with comparable replacement premises
in the Building, Tenant may terminate this Lease if in Tenant's
reasonable judgment the
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Premises cannot be operated by Tenant in an economically viable
fashion because of such partial taking. Such termination by
Tenant must be exercised by written notice to Landlord given not
later than sixty (60) days after Tenant is notified of the taking
of the Premises.
(c) Effective Date of Termination. Termination by
Landlord or Tenant will be effective as of the date when physical
possession of the applicable portion of the Building or Premises
is taken by the condemning authority.
(d) Election to Continue Lease. If neither Landlord
nor Tenant elects to terminate this Lease upon a partial taking
of a portion of the Premises, the Rent payable under this Lease
will be diminished by an amount allocable to the portion of the
Premises which was so taken or sold. If this Lease is not
terminated upon a partial taking of the Building or Premises,
Landlord will, at Landlord's sole expense, promptly restore and
reconstruct the Building and Premises to substantially their
former condition to the extent the same is feasible. However,
Landlord will not be required to spend for such restoration or
reconstruction an amount in excess of the net amount received by
Landlord as compensation or damages for the part of the Building
or Premises so taken.
12.3 AWARDS. As between the parties to this Lease, Landlord will
be entitled to receive, and Tenant assigns to Landlord, all of the compensation
awarded upon taking of any part or all of the Building or Premises, including
any award for the value of the unexpired Term. However, Tenant may assert a
claim in a separate proceeding against the condemning authority for any damages
resulting from the taking of Tenant's trade fixtures or personal property, or
for moving expenses, business relocation expenses or damages to Tenant's
business incurred as a result of such condemnation.
13. ASSIGNMENT AND SUBLETTING.
13.1 LIMITATION. Without Landlord's prior written consent (which
consent will not be unreasonably withheld or delayed), Tenant will not assign
all or any of its interest under this Lease, sublet all or any part of the
Premises or permit the Premises to be used by any parties other than Tenant and
its employees. Notwithstanding anything contained herein to the contrary, any
assignment or sublease to an entity which controls, is controlled by, or is
under common control with Tenant, or which is the result of a merger or
consolidation with Tenant, or which acquires all or substantially all of
Tenant's assets shall not require the consent of Landlord (a "Permitted
Transfer"), provided that Tenant shall notify Landlord or such assignment or
sublease in writing and deliver to Landlord any documents or information
reasonably required by writing and deliver to Landlord any documents or
information reasonably required by Landlord regarding such assignment or
sublease, and further provided that such an assignment or sublease is not an
effort by Tenant to avoid any of its obligations under this Lease, including,
without limitation, the obligations under this Section 13. For purposes of the
preceding sentence, in order for an entity to control another, the controlling
entity must have voting control of and own greater than fifty percent (50%) of
every class of stock entitled to vote and/or other voting equity interest of the
entity, when the controlled entity is a corporation; the controlling entity must
be the owner of greater than fifty percent (50%) of the partnership or limited
liability company interests in the assets, liabilities, income, loss and
distributions of the controlled entity, when the controlled entity is a
partnership or limited liability company; the controlling entity must be the
sole beneficiary of the controlled entity, when the controlled entity is a
trust.
13.2 NOTICE OF PROPOSED TRANSFER; LANDLORD'S OPTIONS. Other than
a Permitted Transfer, if Tenant desires to enter into any assignment of this
Lease or a sublease of all or any part of the Premises, Tenant will first give
Landlord written notice of the proposed assignment or sublease, which notice
will contain the name and address of the proposed transferee, the proposed use
of the Premises, statements
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reflecting the proposed transferee's current financial condition and income and
expenses for the past two (2) years, and the principal terms of the proposed
assignment or sublease. Landlord will have the following options, which must be
exercised, if at all, by notice given to Tenant within ten (10) business days
after Landlord's receipt of Tenant's notice of the proposed transfer (other than
a Permitted Transfer):
(a) if Tenant's notice relates to a subletting, to
sublet from Tenant such space as is described in the notice for
such portion of the Term as is described in the notice, upon the
same terms and conditions and for the same Rent (apportioned, as
appropriate, to the amount of such space) as provided in this
Lease;
(b) if Tenant's notice relates to an assignment,
to become Tenant's assignee; or
(c) if Tenant's notice relates to either an
assignment or subletting, to cancel and terminate the Lease. If
Landlord exercises its option to terminate this Lease, this Lease
shall cancel and terminate on the last day of the month following
said ten (10) day period and Tenant shall be released from any
further liability under this Lease.
Except in the event of termination of this Lease by Landlord as provided in this
Section 13.2, no provision of this Section shall be construed to relieve Tenant
of the obligations as set forth in this Lease.
13.3 CONSENT NOT TO BE UNREASONABLY WITHHELD. If Landlord does
not exercise any of its applicable options under Section 13.2, then Landlord
will not unreasonably withhold or delay its consent to the proposed assignment
or subletting, except with respect to a proposed assignment or sublease to an
existing tenant or other occupant in the Building or to a party who has been
engaged in negotiations with Landlord for a lease in the Building within six (6)
months prior to Tenant's request for Landlord's approval of such assignment or
sublease, for which Landlord may withhold its consent in its sole and absolute
discretion.
13.4 FORM OF TRANSFER. If Landlord consents to a proposed
assignment or sublease, Landlord's consent will not be effective unless and
until Tenant delivers to Landlord an original duly executed assignment or
sublease, as the case may be, that provides, in the case of a sublease, that the
sublease is subject and subordinate to this Lease and the subtenant will comply
with all applicable terms and conditions of this Lease and, in the case of an
assignment, an assumption by the assignee of all of the obligations which this
Lease requires Tenant to perform and an acknowledgment by Tenant that it remains
liable for the performance of all of such obligations.
13.5 PAYMENTS TO LANDLORD. If Landlord does not exercise its
applicable option under Section 13.2 and Tenant effects an assignment or
sublease and in case of a Permitted Transfer, then Landlord will be entitled to
receive and collect, either from Tenant or directly from the transferee, one
hundred percent (100%) of the amount by which the consideration required to be
paid by the transferee for the use and enjoyment of Tenant's rights under this
Lease (after deducting from such consideration Tenant's reasonable costs
incurred in effecting the assignment or sublease) exceeds the Rent payable by
Tenant to Landlord allocable to the transferred space. Such percentage of such
amount will be payable to Landlord at the time(s) Tenant receives the same from
its transferee (whether in monthly installments, in a lump sum, or otherwise).
13.6 CHANGE OF OWNERSHIP. Except for a Permitted Transfer, any
change by Tenant in the form of its legal organization (such as, for example, a
change from a general to a limited partnership), any transfer of fifty-one
percent (51%) or more of Tenant's assets, and any other transfer of interest
effecting a change in identity of persons exercising effective control of Tenant
will be deemed an "assignment" of this Lease requiring Landlord's prior written
consent. The transfer of any outstanding capital stock of a
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corporation whose stock is publicly-traded will not, however, be deemed a
"transfer of interest" under this Section 13.6.
13.7 EFFECT OF TRANSFERS. Unless Landlord agrees to the contrary
in writing, no subletting or assignment (including a Permitted Transfer) will
release Tenant from any of its obligations under this Lease and such obligations
of Tenant will continue in full force and effect as if no subletting or
assignment had been made, regardless of any action taken by or on behalf of a
subtenant or assignee, or limitations imposed on remedies against a subtenant or
assignee, in any bankruptcy, insolvency, receivership, reorganization or
dissolution proceeding instituted by or against such subtenant or assignee.
Acceptance of Rent by Landlord from any person other than Tenant will not be
deemed a waiver by Landlord of any provision of this Section 13. Consent to one
assignment or subletting will not be deemed a consent to any subsequent
assignment or subletting. In the event of any default by any assignee or
subtenant or any successor of Tenant in the performance of any Lease obligation,
Landlord may proceed directly against Tenant without exhausting remedies against
such assignee, subtenant or successor. The voluntary or other surrender of this
Lease by Tenant or the cancellation of this Lease by mutual agreement of Tenant
and Landlord will not work a merger and will, at Landlord's option, terminate
all or any subleases or operate as an assignment to Landlord of all or any
subleases; such option will be exercised by notice to Tenant and all known
subtenants in the Premises.
14. PERSONAL PROPERTY.
14.1 INSTALLATION AND REMOVAL. Tenant may install in the Premises
its personal property (including Tenant's usual trade fixtures) in a proper
manner, provided that no such installation will interfere with or damage the
mechanical, plumbing or electrical systems or the structure of the Building, and
provided further, that if such installation would require any change, addition
or improvement to the Premises, such installation will be subject to Section
7.1. If no Default then exists, any such personal property installed in the
Premises by Tenant (a) may be removed from the Premises from time to time in the
ordinary course of Tenant's business or in the course of making any changes,
additions or improvements to the Premises permitted under Section 7.1, and (b)
will be removed by Tenant at the end of the Term according to Section 15.1.
Tenant will promptly repair at its expense any damage to the Building resulting
from such installation or removal.
14.2 RESPONSIBILITY. Tenant will be solely responsible for all
costs and expenses related to personal property used or stored in the Premises.
Tenant will pay any taxes or other governmental impositions levied upon or
assessed against such personal property, or upon Tenant for the ownership or use
of such personal property, on or before the due date for payment. Such personal
property taxes or impositions are not included in Taxes.
14.3 LANDLORD'S LIEN. In addition to any statutory landlord's
lien and in order to secure payment of all Rent becoming due from Tenant, and to
secure payment of any damages or loss which Landlord may suffer by reason of
Tenant's failure to perform any of its obligations under this Lease, Tenant
grants to Landlord a security interest in and an express contractual lien upon
all goods, wares, equipment, fixtures, furniture, improvements and other
personal property of Tenant now or later situated on the Premises and all
proceeds thereof. Tenant's personal property may not be removed from the
Premises without Landlord's consent at any time a Default exists or, except as
provided in Section 14.1, until all of Tenant's obligations under this Lease
have been fully complied with and performed. Upon the occurrence of a Default,
in addition to any other available remedies, Landlord will have all the rights
of a secured party under the Colorado Uniform Commercial Code with respect to
the property covered by such security interest. Upon Landlord's request, Tenant
agrees to execute and deliver to Landlord such financing statements as may be
required to perfect such security interest.
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15. END OF TERM.
15.1 SURRENDER. Upon the expiration or other termination of the
Term, Tenant will immediately vacate and surrender possession of the Premises in
good order, repair and condition, except for ordinary wear and tear. Upon the
expiration or other termination of the Term, Tenant agrees to remove (a) all
changes, additions and improvements to the Premises the removal of which
Landlord requested or approved according to Section 7.1 at the time Landlord
consented to their installation, and (b) all of Tenant's trade fixtures, office
furniture, office equipment and other personal property. Tenant will pay
Landlord on demand the cost of repairing any damage to the Premises or Building
caused by the installation or removal of any such items. Any of Tenant's
property remaining in the Premises will be conclusively deemed to have been
abandoned by Tenant and may be appropriated, stored, sold, destroyed or
otherwise disposed of by Landlord without notice or obligation to account to or
compensate Tenant, and Tenant will pay Landlord on demand all costs incurred by
Landlord relating to such abandoned property. Tenant's obligations under this
Section 15.1 will survive the expiration or early termination of this Lease.
15.2 HOLDING OVER. Tenant understands that it does not have the
right to hold over at any time and Landlord may exercise any and all remedies at
law or in equity to recover possession of the Premises, as well as any damages
incurred by Landlord, due to Tenant's failure to vacate the Premises and deliver
possession to Landlord as required by this Lease. If Tenant holds over after the
Expiration Date with Landlord's prior written consent, Tenant will be deemed to
be a tenant from month-to-month, at a monthly Base Rent, payable in advance,
equal to one hundred fifty percent (150%) of monthly Base Rent payable during
the last year of the Term, and Tenant will be bound by all of the other terms,
covenants and agreements of this Lease as the same may apply to a month-to-month
tenancy. If Tenant holds over after the Expiration Date without Landlord's prior
written consent, Tenant will be deemed a tenant at sufferance, at a daily Base
Rent, payable in advance, equal to two hundred percent (200%) of the Base Rent
per day payable during the last year of the Term, and Tenant will be bound by
all of the other terms, covenants and agreements of this Lease as the same may
apply to a tenancy at sufferance.
16. ESTOPPEL CERTIFICATES. Promptly upon Landlord's request after Tenant has
occupied the Premises, Tenant will execute and deliver to Landlord an Occupancy
Estoppel Certificate in the form of Exhibit C. In addition, Tenant agrees that
at any time and from time to time (but on not less than ten (10) days' prior
request by Landlord), Tenant will execute, acknowledge and deliver to Landlord a
certificate indicating any or all of the following: (a) the Commencement Date
and Expiration Date; (b) that this Lease is unmodified and in full force and
effect (or, if there have been modifications, that this Lease is in full force
and effect, as modified, and stating the date and nature of each modification);
(c) the date, if any, through which Base Rent, Additional Rent and any other
Rent payable have been paid; (d) that no default by Landlord or Tenant exists
which has not been cured, except as to defaults stated in such certificate; (e)
that Tenant has no existing defenses or set-offs to enforcement of this Lease,
except as specifically stated in such certificate; (f) provided such events have
occurred, that Tenant has accepted the Premises and that all improvements
required to be made to the Premises by Landlord have been completed according to
this Lease; (g) that, except as specifically stated in such certificate, Tenant,
and only Tenant, currently occupies the Premises; and (h) such other matters as
may be reasonably requested by Landlord. Any such certificate may be relied upon
by Landlord and any prospective purchaser or present or prospective mortgagee,
deed of trust beneficiary or ground lessor of all or a portion of the Building.
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17. TRANSFERS OF LANDLORD'S INTEREST.
17.1 SALE, CONVEYANCE AND ASSIGNMENT. Subject only to Tenant's
rights under this Lease, nothing in this Lease will restrict Landlord's right to
sell, convey, assign or otherwise deal with the Land, Building or Landlord's
interest under this Lease.
17.2 EFFECT OF SALE, CONVEYANCE OR ASSIGNMENT. A sale, conveyance
or assignment of the Building will automatically release Landlord from liability
under this Lease from and after the effective date of the transfer, except for
any liability relating to the period prior to such effective date; and Tenant
will look solely to Landlord's transferee for performance of Landlord's
obligations relating to the period after such effective date. This Lease will
not be affected by any such sale, conveyance or assignment and Tenant will
attorn to Landlord's transferee.
17.3 SUBORDINATION AND NONDISTURBANCE. This Lease is and will be
subject and subordinate in all respects to any ground lease, first mortgage or
first deed of trust now or later encumbering the Building or Land, and to all
their renewals, modifications, supplements, consolidations and replacements (an
"Encumbrance"). With respect to any Encumbrance first encumbering the Building
or Land subsequent to the Date of this Lease, Landlord will use its good faith
efforts to cause the holder of such Encumbrance to agree (either in the
Encumbrance or in a separate agreement with Tenant) that so long as Tenant is
not in default of its obligations under this Lease, this Lease will not be
terminated and Tenant's possession of the Premises will not be disturbed by the
termination or foreclosure, or proceedings for enforcement, of such Encumbrance.
While such subordination will occur automatically, Tenant agrees, upon request
by and without cost to Landlord or any successor in interest, to promptly
execute and deliver to Landlord or the holder of an Encumbrance such
instrument(s) as may be reasonably required to evidence such subordination. In
the alternative, however, the holder of an Encumbrance may unilaterally elect to
subordinate such Encumbrance to this Lease.
17.4 ATTORNMENT. If the interest of Landlord is transferred to
any person (a "Transferee") by reason of the termination or foreclosure, or
proceedings for enforcement, of an Encumbrance, or by delivery of a deed in lieu
of such foreclosure or proceedings, Tenant will immediately and automatically
attorn to the Transferee. Upon attornment this Lease will continue in full force
and effect as a direct lease between the Transferee and Tenant, upon all of the
same terms, conditions and covenants as stated in this Lease, except the
Transferee will not be subject to any set-offs or claims which Tenant might have
against any prior landlord and will not be liable for any act or omission of any
prior landlord. Tenant agrees, upon request by and without cost to the
Transferee, to promptly execute and deliver to the Transferee such instrument(s)
as may be reasonably required to evidence such attornment.
18. RULES AND REGULATIONS. Tenant agrees to observe and comply with the Rules
and Regulations set forth on Exhibit D and with all reasonable modifications and
additions to such Rules and Regulations (which will be applicable to all
Building tenants) from time to time adopted by Landlord and of which Tenant is
notified in writing. No such modification or addition will contradict or
abrogate any right expressly granted to Tenant under this Lease. Landlord's
enforcement of the Rules and Regulations will be uniform and nondiscriminatory,
but Landlord will not be responsible to Tenant for the failure of any person to
comply with the Rules and Regulations.
19. PARKING. Tenant may elect to lease up to four (4) unassigned parking spaces
in the parking garage at the Building for the parking of vehicles. Tenant may
also elect to lease one (1) additional unassigned parking space; provided,
however, such space will be on a month to month basis, and Landlord will have
the right to terminate Tenant's right to use such space on the last day of any
calendar month by notice to Tenant given at least thirty (30) days prior to such
last day. Tenant will notify Landlord prior to the Commencement Date of how many
of such spaces Tenant elects to lease, and
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Landlord will make that number of spaces available for lease by Tenant within
thirty (30) days after the Commencement Date. Tenant will pay monthly parking
rent for each space Tenant so elects to lease at the monthly rate established by
Landlord from time to time for the use of that type of parking space by tenants
of the Building. Landlord will give Tenant at least thirty (30) days notice
before increasing the parking rates. All monthly parking rent will be payable in
advance on the first day of each month during the Term to the same place as Base
Rent (or to such other place as Landlord may direct in writing) and will be
considered Rent under this Lease. Tenant may relinquish any parking space it
previously elected to lease as of the last day of any calendar month by notice
to Landlord given at least thirty (30) days prior to such last day. Any parking
space so relinquished and any of the total available spaces described above that
Tenant does not elect to lease at least thirty (30) days prior to the
Commencement Date will be forfeited for the remainder of the Term and Landlord
will have no obligation to subsequently make any of such spaces available for
lease to Tenant. Tenant's rights to use the Building's parking garage are
nonexclusive, will be deemed a license only and are conditioned upon this Lease
being in full force and effect and there being no Default. Tenant will not abuse
its privileges with respect to such parking garage and will use the same in
accordance with Landlord's reasonable directions. Landlord's inability to make
any of the parking spaces leased by Tenant available at any time during the Term
for reasons beyond Landlord's reasonable control will not be deemed a default by
Landlord giving rise to any claim by Tenant, except that Tenant will be entitled
to an abatement of monthly parking rent for any such spaces during the period of
unavailability and such abatement will be in full settlement of any claims that
Tenant might otherwise have had for such unavailability. If at any time during
the Term Tenant fails to make timely payment of any monthly parking rent due, in
addition to any other remedies available to Landlord under Section 20.2,
Landlord may terminate Tenant's license under this Section 19 and Tenant will
then have no further right to use any parking spaces in the Building's parking
garage.
20. TENANT'S DEFAULT AND LANDLORD'S REMEDIES.
20.1 DEFAULT. Each of the following events will constitute a
material breach by Tenant and a "Default" under this Lease:
(a) Failure to Pay Rent. Tenant fails to pay Base
Rent, Additional Rent or any other Rent payable by Tenant under
the terms of this Lease when due, and such failure continues for
five (5) days after written notice from Landlord to Tenant of
such failure; provided that with respect to Base Rent and
Additional Rent, Tenant will be entitled to only three (3)
notices of such failure during any twelve (12) month period and
if, after three (3) such notices are given in any twelve (12)
month period, Tenant fails, during such twelve (12) month period,
to pay any such amounts when due, such failure will constitute a
Default without further notice by Landlord or additional cure
period.
(b) Failure to Perform Other Obligations. Tenant
breaches or fails to comply with any other provision of this
Lease applicable to Tenant, and such breach or noncompliance
continues for a period of twenty (20) days after notice by
Landlord to Tenant; or, if such breach or noncompliance cannot be
reasonably cured within such twenty (20) day period, Tenant does
not in good faith commence to cure such breach or noncompliance
within such twenty (20) day period or does not diligently
complete such cure within sixty (60) days after such notice from
Landlord. However, if such breach or noncompliance causes or
results in (i) a dangerous condition on the Premises or Building,
(ii) any insurance coverage carried by Landlord or Tenant with
respect to the Premises or Building being jeopardized, or (iii) a
material disturbance to another tenant, then a Default will exist
if such breach or noncompliance is not cured as soon as
reasonably possible after notice by Landlord to Tenant, and in
any event is not cured within thirty (30) days after such notice.
For purposes of this Section 20.1(b), financial inability will
not
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be deemed a reasonable ground for failure to immediately cure any
breach of, or failure to comply with, the provisions of this
Lease.
(c) Nonoccupancy of Premises. Tenant fails to
occupy and use the Premises within fifteen (15) days after the
Commencement Date or leaves substantially all of the Premises
unoccupied for fifteen (15) consecutive days or vacates and
abandons substantially all of the Premises.
(d) Transfer of Interest Without Consent. Tenant's
interest under this Lease or in the Premises is transferred or
passes to, or devolves upon, any other party in violation of
Section 13.
(e) Execution and Attachment Against Tenant.
Tenant's interest under this Lease or in the Premises is taken
upon execution or by other process of law directed against
Tenant, or is subject to any attachment by any creditor or
claimant against Tenant and such attachment is not discharged or
disposed of within fifteen (15) days after levy.
(f) Bankruptcy or Related Proceedings. Tenant files
a petition in bankruptcy or insolvency, or for reorganization or
arrangement under any bankruptcy or insolvency Laws, or
voluntarily takes advantage of any such Laws by answer or
otherwise, or dissolves or makes an assignment for the benefit of
creditors, or involuntary proceedings under any such Laws or for
the dissolution of Tenant are instituted against Tenant, or a
receiver or trustee is appointed for the Premises or for all or
substantially all of Tenant's property, and such proceedings are
not dismissed or such receivership or trusteeship vacated within
sixty (60) days after such institution or appointment.
20.2 REMEDIES. Time is of the essence. If any Default occurs,
Landlord will have the right, at Landlord's election, then or at any later time,
to exercise any one or more of the remedies described below. Exercise of any of
such remedies will not prevent the concurrent or subsequent exercise of any
other remedy provided for in this Lease or otherwise available to Landlord at
law or in equity.
(a) Cure by Landlord. Landlord may, at Landlord's
option but without obligation to do so, and without releasing
Tenant from any obligations under this Lease, make any payment or
take any action as Landlord deems necessary or desirable to cure
any Default in such manner and to such extent as Landlord deems
necessary or desirable. Landlord may do so without additional
demand on, or additional written notice to, Tenant and without
giving Tenant an additional opportunity to cure such Default.
Tenant covenants and agrees to pay Landlord, upon demand, all
advances, costs and expenses of Landlord in connection with
making any such payment or taking any such action, including
reasonable attorneys' fees, together with interest at the rate
described in Section 3.5, from the date of payment of any such
advances, costs and expenses by Landlord.
(b) Termination of Lease and Damages. Landlord may
terminate this Lease, effective at such time as may be specified
by written notice to Tenant, and demand (and, if such demand is
refused, recover) possession of the Premises from Tenant. Tenant
will remain liable to Landlord for damages in an amount equal to
the Base Rent, Additional Rent and other Rent which would have
been owing by Tenant for the balance of the Term had this Lease
not been terminated, less the net proceeds, if any, of any
reletting of the Premises by Landlord subsequent to such
termination, after deducting all Landlord's expenses in
connection with such recovery of possession or reletting.
Landlord will be entitled to collect and receive such damages
from Tenant on the days on which the Base Rent, Additional Rent
and other Rent would have been payable if this Lease had not been
terminated. Alternatively, at Landlord's option, Landlord will
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be entitled to recover from Tenant, as damages for loss of the
bargain and not as a penalty, an aggregate sum equal to (i) all
unpaid Base Rent, Additional Rent and other Rent for any period
prior to the termination date of this Lease (including interest
from the due date to the date of the award at the rate described
in Section 3.5), plus any other sum of money and damages owed by
Tenant to Landlord for events or actions occurring prior to the
termination date; plus (ii) the present value at the time of
termination (calculated at the rate commonly called the discount
rate in effect at the Federal Reserve Bank of New York on the
termination date) of the amount, if any, by which (A) the
aggregate of the Base Rent, Additional Rent and all other Rent
payable by Tenant under this Lease that would have accrued for
the balance of the Term after termination (with respect to
Additional Rent, such aggregate will be calculated by assuming
that Expenses and Taxes for the calendar year in which
termination occurs and for each subsequent calendar year
remaining in the Term if this Lease had not been terminated will
increase by eight percent (8%) per year over the amount of
Expenses and Taxes for the prior calendar year), exceeds (B) the
amount of such Base Rent, Additional Rent and other Rent which
Landlord will receive for the remainder of the Term from any
reletting of the Premises occurring prior to the date of the
award, or if the Premises have not been relet prior to the date
of the award, the amount, if any, of such Base Rent, Additional
Rent and other Rent which could reasonably be recovered by
reletting the Premises for the remainder of the Term at the
then-current fair rental value, in either case taking into
consideration loss of rent while finding a new tenant, tenant
improvements and rent abatements necessary to secure a new
tenant, leasing brokers' commissions and other costs which
Landlord has incurred or might incur in leasing the Premises to a
new tenant; plus (iii) interest on the amount described in (ii)
above from the termination date to the date of the award at the
rate described in Section 3.5.
(c) Repossession and Reletting. Landlord may
reenter and take possession of all or any part of the Premises,
without additional demand or notice, and repossess the same and
expel Tenant and any party claiming by, through or under Tenant,
and remove the effects of both using such force for such purposes
as may be necessary, without being liable for prosecution for
such action or being deemed guilty of any manner of trespass, and
without prejudice to any remedies for arrears of Rent or right to
bring any proceeding for breach of covenants or conditions. No
such reentry or taking possession of the Premises by Landlord
will be construed as an election by Landlord to terminate this
Lease unless a written notice of such intention is given to
Tenant. No notice from Landlord or notice given under a forcible
entry and detainer statute or similar Laws will constitute an
election by Landlord to terminate this Lease unless such notice
specifically so states. Landlord reserves the right, following
any reentry or reletting, to exercise its right to terminate this
Lease by giving Tenant such written notice, in which event the
Lease will terminate as specified in such notice. After
recovering possession of the Premises, Landlord shall use
reasonable efforts to relet all or any part of the Premises for
Tenant's account, for such term or terms and on such conditions
and other terms as Landlord, in its discretion, determines.
Landlord may make such repairs, alterations or improvements as
Landlord considers appropriate to accomplish such reletting, and
Tenant will reimburse Landlord upon demand for all costs and
expenses, including attorneys' fees, which Landlord may incur in
connection with such reletting. Landlord may collect and receive
the rents for such reletting but Landlord will in no way be
responsible or liable for any failure to relet the Premises or
for any inability to collect any rent due upon such reletting.
Regardless of Landlord's recovery of possession of the Premises,
Tenant will continue to pay on the dates specified in this Lease,
the Base Rent, Additional Rent and other Rent which would be
payable if such repossession had not occurred, less a credit for
the net amounts, if any, actually received by Landlord through
any reletting of the Premises. Alternatively, at Landlord's
option, Landlord will be entitled to recover from Tenant, as
damages for loss of the bargain and not as a penalty, an
aggregate sum equal to (i) all unpaid Base Rent, Additional Rent
and other Rent for any period prior to the repossession date
(including interest
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from the due date to the date of the award at the rate described
in Section 3.5), plus any other sum of money and damages owed by
Tenant to Landlord for events or actions occurring prior to the
repossession date; plus (ii) the present value at the time of
repossession (calculated at the rate commonly called the discount
rate in effect at the Federal Reserve Bank of New York on the
repossession date) of the amount, if any, by which (A) the
aggregate of the Base Rent, Additional Rent and all other Rent
payable by Tenant under this Lease that would have accrued for
the balance of the Term after repossession (with respect to
Additional Rent, such aggregate will be calculated by assuming
that Expenses and Taxes for the calendar year in which
repossession occurs and for each subsequent calendar year
remaining in the Term if Landlord had not repossessed the
Premises will increase by eight percent (8%) per year over the
amount of Expenses and Taxes for the prior calendar year),
exceeds (B) the amount of such Base Rent, Additional Rent and
other Rent which Landlord will receive for the remainder of the
Term from any reletting of the Premises occurring prior to the
date of the award, or if the Premises have not been relet prior
to the date of the award, the amount, if any, of such Base Rent,
Additional Rent and other Rent which could reasonably be
recovered by reletting the Premises for the remainder of the Term
at the then-current fair rental value, in either case taking into
consideration loss of rent while finding a new tenant, tenant
improvements and rent abatements necessary to secure a new
tenant, leasing brokers' commissions and other costs which
Landlord has incurred or might incur in leasing the Premises to a
new tenant; plus (iii) interest on the amount described in (ii)
above from the repossession date to the date of the award at the
rate described in Section 3.5.
(d) Bankruptcy Relief. Nothing contained in this
Lease will limit or prejudice Landlord's right to prove and
obtain as liquidated damages in any bankruptcy, insolvency,
receivership, reorganization or dissolution proceeding, an amount
equal to the maximum allowable by any Laws governing such
proceeding in effect at the time when such damages are to be
proved, whether or not such amount be greater, equal or less than
the amounts recoverable, either as damages or Rent, under this
Lease.
21. LANDLORD'S DEFAULT AND TENANT'S REMEDIES.
21.1 DEFAULT. If Tenant believes that Landlord has breached or
failed to comply with any provision of this Lease applicable to Landlord, Tenant
will give written notice to Landlord describing the alleged breach or
noncompliance. Landlord will not be deemed in default under this Lease if
Landlord cures the breach or noncompliance within twenty (20) days after receipt
of Tenant's notice or, if the same cannot reasonably be cured within such twenty
(20) day period, if Landlord in good faith commences to cure such breach or
noncompliance within such period and then diligently pursues the cure to
completion. Tenant will also send a copy of such notice to the holder of any
Encumbrance of whom Tenant has been notified in writing, and such holder will
also have the right to cure the breach or noncompliance within the period of
time described above.
21.2 REMEDIES. If Landlord breaches or fails to comply with any
provision of this Lease applicable to Landlord, and such breach or noncompliance
is not cured within the period of time described in Section 21.1, then Tenant
may exercise any right or remedy available to Tenant at law or in equity, except
to the extent expressly waived or limited by the terms of this Lease.
22. SECURITY DEPOSIT.
22.1 AMOUNT. Upon execution of this Lease, Tenant will deposit
the Security Deposit with Landlord in the amount described in Section 1.1(j). At
any time during the Term, subsequent to an increase in Base Rent pursuant to the
terms of this Lease, Tenant will, within thirty (30) days after Landlord's
written request, further deposit with Landlord, as additional Security Deposit,
the amount, if
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any, required to cause the total Security Deposit held by Landlord to be equal
to one month's installment of the then-current Base Rent plus one month's
installment of the then-estimated Additional Rent. Landlord and Tenant intend
the Security Deposit to be used solely as security for Tenant's faithful and
diligent performance of all of Tenant's obligations under this Lease. The
Security Deposit will remain in Landlord's possession for the entire Term, and
Landlord will not be required to segregate it from Landlord's general funds.
Tenant will not be entitled to any interest on the Security Deposit.
22.2 USE AND RESTORATION. If Tenant fails to perform any of its
obligations under this Lease, Landlord may, at its option, use, apply or retain
all or any part of the Security Deposit for the payment of (a) any Rent in
arrears; (b) any expenses Landlord may incur as a direct or indirect result of
Tenant's failure to perform; and (c) any other losses or damages Landlord may
suffer as a direct or indirect result of Tenant's failure to perform. If
Landlord so uses or applies all or any portion of the Security Deposit, Landlord
will notify Tenant of such use or application and Tenant will, within ten (10)
days after the date of Landlord's notice, deposit with Landlord a sum sufficient
to restore the Security Deposit to the amount held by Landlord immediately prior
to such use or application. Tenant's failure to so restore the Security Deposit
will constitute a Default.
22.3 TRANSFERS. Tenant will not assign or encumber the Security
Deposit without Landlord's express written consent. Neither Landlord nor its
successors or assigns will be bound by any assignment or encumbrance unless
Landlord has given its consent. Landlord will have the right, at any time and
from time to time, to transfer the Security Deposit to any purchaser or lessee
of the entire Building. Upon any such transfer, Tenant agrees to look solely to
the new owner or lessee for the return of the Security Deposit.
22.4 REFUND. Provided that Tenant has fully and faithfully
performed all of its obligations under this Lease, Landlord will refund the
Security Deposit, or any balance remaining, to Tenant or, at Landlord's option,
to the latest assignee of Tenant's interest under this Lease, within sixty (60)
days after the expiration or early termination of the Term and Tenant's vacation
and surrender of the Premises to Landlord in the condition required by Section
15.1. If Tenant fails to make any final estimated payment of Additional Rent
required by Landlord according to Section 3.2(c), Landlord may withhold such
final payment from the amount of the Security Deposit refund.
23. BROKERS. Landlord and Tenant represent and warrant that no broker or agent
negotiated or was instrumental in negotiating or consummating this Lease except
the Brokers. Neither party knows of any other real estate broker or agent who is
or might be entitled to a commission or compensation in connection with this
Lease. Landlord will pay all fees, commissions or other compensation payable to
the Brokers to be paid by Landlord according to Section 1.1(o) and Tenant will
pay all fees, commissions or other compensation payable to the Brokers to be
paid by Tenant according to Section 1.1(o). Tenant and Landlord will indemnify
and hold each other harmless from all damages paid or incurred by the other
resulting from any claims asserted against either party by brokers or agents
claiming through the other party.
24. LIMITATIONS ON LANDLORD'S LIABILITY. Any liability for damages, breach or
nonperformance by Landlord, or arising out of the subject matter of, or the
relationship created by, this Lease, will be collectible only out of Landlord's
interest in the Building and no personal liability is assumed by, or will at any
time be asserted against, Landlord, its parent and affiliated corporations, its
and their partners, venturers, directors, officers, agents, servants and
employees, or any of its or their successors or assigns; all such liability, if
any, being expressly waived and released by Tenant. Landlord's review,
supervision, commenting on or approval of any aspect of work to be done by or
for Tenant (under Section 7, Exhibit B or otherwise) are solely for Landlord's
protection and, except as expressly provided, create no warranties or duties to
Tenant or to third parties.
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25. NOTICES. All notices required or permitted under this Lease must be in
writing and will only be deemed properly given and received (a) when actually
given and received, if delivered in person to a party who acknowledges receipt
in writing; or (b) one business day after deposit with a private courier or
overnight delivery service, if such courier or service obtains a written
acknowledgment of receipt; or (c) two (2) business days after deposit in the
United States mails, certified or registered mail with return receipt requested
and postage prepaid. All such notices must be transmitted by one of the methods
described above to the party to receive the notice at, in the case of notices to
Landlord, both Landlord's Building Address and Landlord's General Address, and
in the case of notices to Tenant, the applicable Tenant's Notice Address, or, in
either case, at such other address(es) as either party may notify the other of
according to this Section 25.
26. MISCELLANEOUS.
26.1 BINDING EFFECT. Each of the provisions of this Lease will
extend to bind or inure to the benefit of, as the case may be, Landlord and
Tenant, and their respective heirs, successors and assigns, provided this clause
will not permit any transfer by Tenant contrary to the provisions of Section 13.
26.2 COMPLETE AGREEMENT; MODIFICATION. All of the representations
and obligations of the parties are contained in this Lease and no modification,
waiver or amendment of this Lease or of any of its conditions or provisions will
be binding upon a party unless in writing signed by such party.
26.3 DELIVERY FOR EXAMINATION. Submission of the form of the
Lease for examination will not bind Landlord in any manner, and no obligations
will arise under this Lease until it is signed by both Landlord and Tenant and
delivery is made to each.
26.4 NO AIR RIGHTS. This Lease does not grant any easements or
rights for light, air or view. Any diminution or blockage of light, air or view
by any structure or condition now or later erected will not affect this Lease or
impose any liability on Landlord.
26.5 ENFORCEMENT EXPENSES. Each party agrees to pay, upon demand,
all of the other party's costs, charges and expenses, including the fees and
out-of-pocket expenses of counsel, agents, and others retained, incurred in
successfully enforcing the other party's obligations under this Lease.
26.6 RELOCATION OF TENANT. At any time after the Date, Landlord
may, upon at least forty-five (45) days' prior notice, substitute for the
Premises other premises in the Building ("New Premises") provided that the New
Premises will be similar to the Premises in area and usable for Tenant's
purpose. If Tenant is already occupying the Premises, then Landlord will also
pay the reasonable expenses of Tenant's moving from the Premises to the New
Premises and for improving the New Premises so that the leasehold improvements
in the New Premises are substantially similar to those in the Premises. Such
move will be made during evenings, weekends or otherwise so as to incur the
least inconvenience to Tenant.
26.7 BUILDING NAME. Tenant will not, without Landlord's consent,
use Landlord's or the Building's name, or any facsimile or reproduction of the
Building, for any purpose; except that Tenant may use the Building's name in the
address of the business to be conducted by Tenant in the Premises. Landlord
reserves the right, upon reasonable prior notice to Tenant, to change the name
or address of the Building.
26.8 NO WAIVER. No waiver of any provision of this Lease will be
implied by any failure of either party to enforce any remedy upon the violation
of such provision, even if such violation is
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continued or repeated subsequently. No express waiver will affect any provision
other than the one specified in such waiver, and that only for the time and in
the manner specifically stated.
26.9 RECORDING; CONFIDENTIALITY. Tenant will not record this
Lease, or a short form memorandum, without Landlord's written consent and any
such recording without Landlord's written consent will be a Default. Tenant
agrees to keep the Lease terms, provisions and conditions confidential and will
not disclose them to any other person without Landlord's prior written consent.
However, Tenant may disclose Lease terms, provisions and conditions to Tenant's
accountants, attorneys, managing employees and others in privity with Tenant, as
reasonably necessary for Tenant's business purposes, without such prior consent.
26.10 CAPTIONS. The captions of sections are for convenience only
and will not be deemed to limit, construe, affect or alter the meaning of such
sections.
26.11 INVOICES. All bills or invoices to be given by Landlord to
Tenant will be sent to Tenant's Invoice Address. Tenant may change Tenant's
Invoice Address by notice to Landlord given according to Section 25. If Tenant
fails to give Landlord specific written notice of its objections within sixty
(60) days after receipt of any xxxx or invoice from Landlord, such xxxx or
invoice will be deemed true and correct and Tenant may not later question the
validity of such xxxx or invoice or the underlying information or computations
used to determine the amount stated.
26.12 SEVERABILITY. If any provision of this Lease is declared
void or unenforceable by a final judicial or administrative order, this Lease
will continue in full force and effect, except that the void or unenforceable
provision will be deemed deleted and replaced with a provision as similar in
terms to such void or unenforceable provision as may be possible and be valid
and enforceable.
26.13 JURY TRIAL. Landlord and Tenant waive trial by jury in any
action, proceeding or counterclaim brought by Landlord or Tenant against the
other with respect to any matter arising out of or in connection with this
Lease, Tenant's use and occupancy of the Premises, or the relationship of
Landlord and Tenant. However, such waiver of jury trial will not apply to any
claims for personal injury.
26.14 AUTHORITY TO BIND. The individuals signing this Lease on
behalf of Landlord and Tenant represent and warrant that they are empowered and
duly authorized to bind Landlord or Tenant, as the case may be, to this Lease
according to its terms.
26.15 ONLY LANDLORD/TENANT RELATIONSHIP. Landlord and Tenant
agree that neither any provision of this Lease nor any act of the parties will
be deemed to create any relationship between Landlord and Tenant other than the
relationship of landlord and tenant.
26.16 COVENANTS INDEPENDENT. The parties intend that this Lease
be construed as if the covenants between Landlord and Tenant are independent and
not dependent and that the Rent will be payable without offset, reduction or
abatement for any cause except as otherwise specifically provided in this Lease.
26.17 GOVERNING LAW. This Lease will be governed by and construed
according to the laws of the State of Colorado.
26.18 FORM OF EXECUTION COPY. The parties acknowledge that they
intend to execute a blacklined copy of this Lease, which shows all changes
(except those in Sections 1.1 and 1.2) to Landlord's form of lease for the
Building. The parties acknowledge that this Lease reflects the final
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agreement between the parties hereto and that any words or items stricken herein
are intended to be deleted and any words or items underscored are intended to be
included and made a part of this Lease.
27. LANDLORD'S OBLIGATIONS CONTINGENT. Tenant acknowledges that the Premises are
currently occupied by Juice Kitchen, Inc., a Delaware corporation ("JKI").
Landlord's obligations under this Lease are expressly conditioned upon Landlord
entering into a termination agreement or amendment to JKI's lease, with such
agreement or amendment (a) being acceptable to Landlord, in Landlord's sole and
absolute discretion, and (b) providing that JKI will vacate the Premises (the
"JKI Termination"). Landlord and Tenant will each have the right to terminate
this Lease if Landlord and JKI have not executed and delivered the JKI
Termination within thirty (30) days of the Date, with such termination right
being exercised by Landlord or Tenant, as the case may be, on or before the
earlier of five (5) days after the expiration of such thirty (30) day period or
the actual execution and delivery of the JKI Termination by Landlord and JKI.
Having read and intending to be bound by the terms and provisions
of this Lease, Landlord and Tenant have signed it as of the Date.
TENANT: LANDLORD:
GLACIER DISTRIBUTION COMPANY, INC., AMSTAR DENVER, LTD., a Colorado limited
a Colorado corporation partnership
By: ADCBD, Ltd., a Colorado limited
partnership, general partner
By: /s/ Xxx X. Xxxxx
-----------------------------------
By: Amstar Capital Management
Printed Name: Xxx X. Xxxxx Corporation, a Colorado
------------------------- corporation, general partner
Title: C.E.O.
--------------------------------
By: /s/ Xxxxx X. Xxxxx
---------------------------
Xxxxx X. Xxxxx, President
And By: /s/ Xxxxxx X. Xxxxxxxxx, Xx.
-------------------------------
Printed Name: Xxxxxx X. Xxxxxxxxx, Xx.
-------------------------
Title: President
--------------------------------
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EXHIBIT A
INDEPENDENCE PLAZA
PLAN DELINEATING THE PREMISES
A-1
36
EXHIBIT B
INDEPENDENCE PLAZA
[INTENTIONALLY OMITTED]
B-1
37
EXHIBIT C
INDEPENDENCE PLAZA
[INTENTIONALLY OMITTED]
C-1
38
EXHIBIT D
INDEPENDENCE PLAZA
RULES AND REGULATIONS
1. RIGHTS OF ENTRY. Tenant will have the right to enter the
Premises at any time, but outside of Business Hours Tenant will be required to
furnish proper and verifiable identification. Landlord will have the right to
enter the Premises after Business Hours to perform janitorial services, at all
reasonable hours to clean windows and also at any time during the last three (3)
months of the Term, with reasonable prior notice to Tenant, to show the Premises
to prospective tenants.
2. RIGHT OF EXCLUSION. Landlord reserves the right to exclude or
expel from the Building any person who, in Landlord's judgment, is intoxicated
or under the influence of alcohol or drugs.
3. OBSTRUCTIONS. Tenant will not obstruct or place anything in or
on the sidewalks or driveways outside the building, or in the lobbies,
corridors, stairwells or other Common Areas. Landlord may remove, at Tenant's
expense, any such obstruction or thing without notice or obligation to Tenant.
4. REFUSE. Tenant will place all refuse in the Premises in proper
receptacles provided and paid for by Tenant, or in receptacles provided by
Landlord for the Building, and will not place any litter or refuse on or in the
sidewalks or driveways outside the Building, or the Common Areas, lobbies,
corridors, stairwells, ducts or shafts of the Building.
5. PUBLIC SAFETY. Tenant will not throw anything out of doors,
windows or skylights, down passageways or over walls.
6. KEYS; LOCKS. Landlord may from time to time install and change
locks on entrances to the Building, Common Areas and the Premises, and will
provide Tenant a reasonable number of keys to meet Tenant's requirements. If
Tenant desires additional keys they will be furnished by Landlord and Tenant
will pay a reasonable charge for them. Tenant will not add or change existing
locks on any door in or to the Premises without Landlord's prior written
consent. If with Landlord's consent, Tenant installs lock(s) incompatible with
the Building master locking system:
(a) Landlord, without abatement of Rent, will be
relieved of any obligation under the Lease to provide any service
that requires access to the affected areas;
(b) Tenant will indemnify Landlord against any
expense as a result of forced entry to the affected areas which
may be required in an emergency; and
(c) Tenant will, at the end of the Term and at
Landlord's request, remove such lock(s) at Tenant's expense.
At the end of the Term, Tenant will promptly return to Landlord all keys for the
Building and Premises which are in Tenant's possession.
7. AESTHETICS. Tenant will not attach any awnings, signs,
displays or projections to the outside or inside walls or windows of the
Building which are visible from outside the Premises without Landlord's prior
written approval, which may be withheld in Landlord's sole discretion.
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8. WINDOW TREATMENT. If Tenant desires to attach or hang any
curtains, blinds, shades or screens to or in any window or door of the Premises,
Tenant must obtain Landlord's prior written approval. Tenant will not coat or
sunscreen the interior or exterior of any windows without Landlord's express
written consent. Tenant will not place any objects on the window xxxxx that
cause, in Landlord's reasonable opinion, an aesthetically unacceptable
appearance.
9. DIRECTORY BOARDS. Landlord will make every reasonable effort
to accommodate Tenant's requirements for the Building directory boards. The cost
of any changes to the directory board information identifying Tenant requested
by Tenant subsequent to the initial installation of such information will be
paid for by Tenant.
10. BUILDING CONTROL. Landlord reserves the right to control and
operate the Common Areas as well as facilities furnished for the common use of
tenants in such manner as Landlord deems best for the benefit of tenants
generally. Landlord reserves the right to prevent access to the Building during
an emergency by closing the doors or otherwise, for the safety of tenants and
protection of the Building and property in the Building.
11. ENGINEERING CONSENT. All plumbing, electrical and heating,
ventilating and air conditioning ("HVAC") work for and in the Premises requires
Landlord's prior written consent to maintain the integrity of the Building's
electrical, plumbing and HVAC systems.
12. HVAC INTERFERENCE. Tenant will not place objects or other
obstructions on the HVAC convectors or diffusers and will not permit any other
interference with the HVAC system.
13. PLUMBING. Tenant will only use plumbing fixtures for the
purpose for which they are constructed. Tenant will pay for all damages
resulting from any misuse by Tenant of plumbing fixtures.
14. EQUIPMENT LOCATION. Landlord reserves the right to specify
where Tenant's business machines, mechanical equipment and heavy objects will be
placed in the Premises in order to best absorb and prevent vibration, noise and
annoyance to other tenants, and to prevent damage to the Building. Tenant will
pay the cost of any required professional engineering certification or
assistance.
15. BICYCLES; ANIMALS. Tenant will not bring into, or keep about,
the Premises any bicycles, vehicles, birds, animals or organic Christmas decor
of any kind. Bicycles and vehicles may only be parked in areas designated for
such purposes.
16. CARPET PROTECTION. In those portions of the Premises where
carpet has been provided by Landlord, Tenant will at its own expense install and
maintain pads to protect the carpet under all furniture having castors other
than carpet castors.
17. PROPER CONDUCT. Tenant will conduct itself in a manner which
is consistent with the character of the Building and will ensure that Tenant's
conduct will not impair the comfort or convenience of other tenants in the
Building.
18. ELEVATORS. Except as may be expressly permitted by Landlord,
only freight elevators may be used for deliveries. Use of freight elevators
after Business Hours must be scheduled through the office of the Property
Manager.
X-0
00
00. DELIVERIES. Tenant will ensure that deliveries of materials
and supplies to the Premises are made through such entrances, elevators and
corridors and at such times as may from time to time be reasonably designated by
Landlord. Such deliveries may not be made through any of the main entrances to
the Building without Landlord's prior permission. Tenant will use or cause to be
used, in the Building, hand trucks or other conveyances equipped with rubber
tires and rubber side guards to prevent damage to the Building or property in
the Building. Tenant will promptly pay Landlord the cost of repairing any damage
to the Building caused by any person making deliveries to the Premises.
20. MOVING. Tenant will ensure that furniture and equipment and
other bulky matter being moved to or from the Premises are moved through such
entrances, elevators and corridors and at such times as may from time to time be
reasonably designated by Landlord, and by movers or a moving company reasonably
approved by Landlord. Tenant will promptly pay Landlord the cost of repairing
any damage to the Building caused by any person moving any such furniture,
equipment or matter to or from the Premises.
21. SOLICITATIONS. Canvassing, soliciting and peddling in the
Building are prohibited and Tenant will cooperate in preventing the same.
22. FOOD. Only persons approved from time to time by Landlord may
prepare, solicit orders for, sell, serve or distribute food in or around the
Building. Except as may be specified in the Lease or on construction drawings
for the Premises approved by Landlord, and except for microwave cooking, Tenant
will not use the Premises for preparing or dispensing food, or soliciting of
orders for sale, serving or distribution of food.
23. PARKING RULES AND REGULATIONS. Tenant will comply with all
reasonable rules and regulations applicable to the Building's parking garage as
determined by the garage operator.
24. SMOKING. Smoking is prohibited in all interior Common Areas
and is restricted in all exterior Common Areas to those specific locations
designated by Landlord as smoking areas.
25. EMPLOYEES, AGENTS AND INVITEES. In these Rules and
Regulations, "Tenant" includes Tenant's employees, agents, invitees, licensees
and others permitted by Tenant to access, use or occupy the Premises.
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