Exhibit 10.22
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OFFICE BUILDING LEASE
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l. PARTIES. This Lease, dated, for reference purposes only, July 19,
1995, is made by and between CHRISMAN, BYNUM, & ▇▇▇▇▇▇▇ P.C. (herein called
"Landlord") and EQUITABLE BANK OF LITTLETON, (herein called "Tenant").
2. PREMISES. Landlord does hereby lease to Tenant and Tenant hereby
leases from Landlord that certain office space (herein called "Premises")
indicated on Exhibit "A" attached hereto and by reference thereto made a part
hereof, said Premises being agreed, for the purposes of this Lease, to have an
area of approximately 2,400 square feet, (including a pro rata share of the
common areas) and being situated on the FIRST FLOOR of that certain building
known as CHRISMAN, BYNUM, AND ▇▇▇▇▇▇▇ LAW BUILDING located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇. Said Lease is subject to the terms, covenants and conditions
herein set forth and the Tenant covenants as a material part of the
consideration for this Lease to keep and perform each and all of said terms,
covenants and conditions by it to be kept and performed and that this Lease is
made upon the condition of said performance.
3. TERM. The term of this Lease shall be for FIVE (5) years, commencing
on the 1st day of October, 1995, and ending on the 30th day of September 2000.
4. POSSESSION.
a. Landlord shall deliver possession of the Premises to Tenant "as
is" on October 1, 1995, subject to warranty claims.
b. In the event that Landlord shall permit Tenant to occupy the
Premises prior to the commencement date of the term, such occupancy shall be
subject to all the provisions of the Lease. Said early possession shall not
advance the termination date herein above provided.
5. RENT.
a. Tenant agrees to pay to Landlord as basic monthly rental, without
prior notice or demand, as follows:
October 1, 1995 through September 30, 1996 $3,600.00
October 1, 1996 through September 30, 1997 $3,800.00
October 1, 1997 through September 30, 1998 $4,000.00
October 1, 1998 through September 30, 1999 $4,200.00
October 1, 1999 through September 30, 2000 $4,600.00
payable on or before the first day of each calendar month of the term hereof,
except that the first month's rent shall be paid upon the execution hereof. Rent
for any period during the term hereof which is for less than one (1) month shall
be a prorated portion of the monthly installment herein,
based upon a thirty (30) day month. Said rental shall be paid to Landlord,
without deduction or offset in lawful money of the United States of America,
which shall be legal tender at the time of payment at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or to such other person or at such other place as
Landlord may from time to time designate in writing.
b. Notwithstanding any provision contained herein, the basic monthly
rental due under the terms hereof shall at no time be less than THREE THOUSAND
SIX HUNDRED and 00/100 Dollars ($3.600.00).
6. SECURITY DEPOSIT. Tenant shall deposit with Landlord the sum of FOUR
THOUSAND NINE HUNDRED DOLLARS AND 00/100 Dollars ($4,900.00). Said sum shall be
held by landlord as security for the faithful performance by Tenant of all the
terms, covenants, and conditions of this Lease to be kept and performed by
Tenant during the term hereof. If Tenant defaults with respect to any provision
of this Lease, including, but not limited to the provisions relating to the
payment of rent, Landlord may (but shall not be required to) use, apply or
retain all or any part of this security deposit for the payment of any rent or
any other sum in default, or for the payment of any amount which Landlord may
spend or become obligated to spend by reason of Tenant's default, or to
compensate Landlord for any other loss or damage which Landlord may suffer by
reason of Tenant's default. If any portion of said deposit is so used or
applied, Tenant shall within five (5) days after receipt of written demand
therefor, deposit cash with Landlord in an amount sufficient to restore the
security deposit to its original amount and Tenant's failure to do so shall be a
material breach of this Lease. Landlord shall not be required to keep this
security deposit separate from its general funds, and Tenant shall not be
entitled to interest on such deposit. If Tenant shall fully and faithfully
perform every provision of this Lease to be performed by it, the security
deposit or any balance thereof shall be returned to Tenant (or at Landlord's
option, to the last assignee of Tenant's interest hereunder) at the expiration
of the Lease term. In the event of termination of Landlord's interest in this
Lease, Landlord shall transfer said deposit to Landlord's successor in interest.
7. OPERATING EXPENSES. For the purposes of this Article, operating
expenses means all reasonable and necessary costs and expenses of every kind and
nature, other than those expressly excluded below, paid or incurred by Landlord
in operating, managing, repairing, maintaining and administering the Building
including, without limitation or duplication:
a. The cost of all insurance required to be kept by Landlord
pursuant to this Lease and any other insurance which Landlord may reasonably
elect to obtain with respect to the operation or ownership of the Property and
the part of any claim required to be paid under the deductible portion of any
insurance policies carried by Landlord in connection with the Property (where
Landlord is unable to obtain insurance without such deductible from a major
insurance carrier at reasonable rates).
b. The cost of general repairs, maintenance and replacements
(excluding replacement HVAC equipment and roof) made from time to time by
Landlord to the Property,
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including costs under mechanical or other maintenance contracts and repairs and
replacements of equipment used in connection with such maintenance and repair
work.
c. The cost of pest control, security, cleaning and snow and ice
removal services.
d. The cost of maintaining, repairing, redecorating, renovating,
replacement of floor coverings, and landscaping the Common Facilities, and of
maintaining and operating any fire detection, fire prevention, lighting and
communications systems.
e. The cost of all utilities (including, without limitation, water,
sewer, gas and electricity) used or consumed.
f. The cost of providing heating, ventilating and cooling to the
interior portions of the Building, if any.
g. Remuneration (including wages, usual expense accounts and fringe
benefits, costs to Landlord of workmen's compensation and disability insurance
and payroll taxes) and fees of persons and companies to the extent engaged in
operating, managing, repairing, maintaining, or administering the Property.
h. The cost of reasonable and market rate professional property
management fees, supplying any on-site manager with necessary office space,
office equipment and supplies in the Building, and costs incurred by Landlord or
its agents in engaging accountants or other consultants to assist in making the
computations required hereunder.
i. The cost of capital improvements and structural repairs and
replacements made in, on or to the Property that are [i] made in order to
conform to changes subsequent to the Commencement Date in any applicable laws,
ordinances, rules, regulations or orders of any governmental or quasi-
governmental authority having jurisdiction over the Property, or [ii] designed
primarily to reduce operating Expenses or the rate of increase in Operating
Expense [iii] the replacement of the roof, heating, ventilating and air
conditioning equipment; such costs shall be charged by Landlord to Operating
Expense in equal annual installments over the useful life of such capital
improvement or structural repair or replacement (as reasonably determined by
Landlord) together with interest on the balance of the unreimbursed cost at 4%
above the Prime Rate charged by Bank One in Boulder on the date the cost was
incurred by Landlord.
j. Real property taxes and assessments, gross receipts, taxes
(whether assessed against the Landlord or assessed against the Tenant and
collected by the Landlord, or both).
k. Other costs and expenses, including supplies, not otherwise
expressly excluded hereunder attributable to the operation, management, repair,
maintenance and administration of the Property.
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l. A reserve for replacement of heating, ventilating and air
conditioning equipment and replacement of the roof of Nineteen Thousand Dollars
($19,000.00) per annum.
Operating Expenses shall not, however, include the following:
m. Any charge for depreciation of the Building or equipment and any
interest or other finance charge.
n. The cost of any work, including painting, decorating and work in
the nature of tenant finish, which Landlord performs in any Rentable Premises
other than work of a kind and scope which Landlord would be obligated to perform
in the Demised Premises.
o. The cost of repairs, replacements or other work occasioned by
insured casualty or defects in construction or equipment to the extent such cost
is reimbursed to Landlord (or not charged to Landlord) by reason of collected
insurance proceeds (using Landlord's good faith efforts to collect such
proceeds) or any contractors, manufacturers' or suppliers' warranties.
p. Expenditures required to be capitalized for federal income tax
purposes (except as provided in Article 7, paragraph 1.).
q. Leasing commissions, advertising expenses and other costs
incurred in leasing space in the Building except as otherwise expressly provided
in this Lease.
r. The cost of repairing or rebuilding necessitated by condemnation.
s. The cost of any damage to the Property or any settlement, payment
or judgment incurred by Landlord, resulting in neither case from Landlord's
tortious act, neglect or breach of this Lease that is not covered by insurance
proceeds.
Tenant shall pay 8.5938% of Operating Expenses paid or incurred by the
Landlord for the operation or maintenance of the Building of which the Premises
are a part. This percentage is calculated on the assumption of a total net
rentable area of 27,927 square feet for floors one (1) through (3). The
percentage set forth above is based upon the assumption that the Premises are
approximately 2,400 square feet. If the leasable square footage is less or more
than 2,400 square feet the percentage will change to conform to the actual
leasable square footage as determined by the project architect, OZ Architecture.
Upon commencement of this Lease, Landlord shall give Tenant a statement of the
amount of Operating Expenses payable by Tenant with each payment of rent, which
shall be based upon a best estimate of such expenses if no record of actual
expenses for the prior year are available. Landlord shall reasonably endeavor to
give to Tenant on or before the first day of March of each year thereafter a
statement of the increase in Operating Expenses payable by Tenant hereunder, but
failure by Landlord to give such statement by said date shall not constitute a
waiver by Landlord of its right to require an increase in Operating Expenses.
The total amount of
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actual Operating Expenses for the prior year shall be used as an estimate for
current year and this amount shall be divided into twelve (12) equal monthly
installments, and Tenant shall pay to Landlord, concurrently with the regular
monthly rent payment next due following the receipt of such statement, an amount
equal to one (1) monthly installment multiplied by the number of months from
January in the calendar year in which said statement is submitted to the month
of such payment. Subsequent installments shall be payable concurrently with the
regular monthly rent payments for the balance of that calendar year and shall
continue until the next year's statement is rendered. If Operating Expenses are
more than estimated, then upon receipt of a statement from Landlord, Tenant
shall pay a lump sum equal to such total increase with the regular monthly rent
payment. If Operating Expenses are less than estimated, then Tenant shall
receive credit against future rent and operating expenses.
Even though the term has expired and Tenant has vacated the Premises, when
the final determination is made of Tenant's share of Operating Expenses for the
year in which this Lease terminates, Tenant shall immediately pay any increase
due over the estimated expenses paid and, conversely, any overpayment made in
the event said expenses decrease shall be immediately rebated by Landlord to
Tenant.
8. USE. Tenant shall use the Premises for GENERAL OFFICE AND BANKING
purposes and shall not use or permit the Premises to be used for any other
purpose without the prior written consent of Landlord.
Tenant shall not do or permit anything to be done in or about the Premises
nor bring or keep anything therein which will in any way increase the existing
rate or affect any fire or other insurance upon the Building or any of its
contents, or cause cancellation of any insurance policy covering said Building
or any part thereof or any of its contents. Tenant shall not do or permit
anything to be done in or about the Premises which will, in any way, obstruct or
interfere with the rights of other tenants or occupants of the Building or
injure or annoy them or use or allow the Premises to be used for any improper,
immoral, unlawful or objectionable purpose, nor shall Tenant cause, maintain or
permit any nuisance in, on or about the Premises. Tenant shall not commit or
suffer to be committed any waste in or upon the Premises.
9. COMPLIANCE WITH LAW. Tenant shall not use the Premises or permit
anything to be done in or about the Premises which will, in any way, conflict
with any law, statute, ordinance or governmental rule or regulation now in force
or which may hereafter by enacted or promulgated. Tenant shall, at its sole cost
and expense, promptly comply with all laws, statutes, ordinances and
governmental rules, regulations or requirements now in force or which may
hereafter be in force, and with the requirements of any board of fire insurance
underwriters or other similar bodies now or hereafter constituted, relating to,
or affecting the condition, use or occupancy of the Premises, excluding
structural changes not related to or affected by Tenant's improvements or acts.
The judgment against Tenant, whether the Landlord be a party thereto or not,
that Tenant has violated any law, statute, ordinance or governmental rule,
regulation or requirement, shall be conclusive of that fact as between the
Landlord and Tenant.
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10. ALTERATIONS AND ADDITIONS. Tenant shall not make or suffer to be made
any alterations, additions or improvements to or of the Premises or any part
thereof without the written consent of Landlord first had and obtained, and any
alterations, additions or improvements to or of said Premises, including, but
not limited to, wall covering, paneling and built-in cabinet work, but excepting
movable furniture and trade fixtures, shall, on the expiration of the term,
become a part of the realty and belong to the Landlord and shall be surrendered
with the Premises. In the event Landlord consents to the making of any
alterations, additions or improvements to the Premises by Tenant, the same shall
be made by Tenant at Tenant's sole cost and expense, and any contractor or
person selected by Tenant to make the same, must first be approved of in writing
by the Landlord. Upon the expiration or earlier termination of the term hereof,
Tenant shall, upon the written demand by the Landlord, given at least thirty
(30) days prior to the end of the term, at Tenant's sole cost and expense,
forthwith and with all due diligence, remove any alterations, additions, or
improvements made which have been designated by the Landlord to be removed, and
repair any damage to the Premises caused by such removal.
11. REPAIRS.
a. By taking possession of the Premises, Tenant shall be deemed to
have accepted the Premises as being in good, sanitary order, condition and
repair. Tenant shall, at Tenant's sole cost and expense, keep the Premises and
every part thereof in good condition and repair, damage thereto from causes
beyond the reasonable control of Tenant and ordinary wear and tear excepted.
Tenant shall, upon the expiration or sooner termination of this Lease hereof;
surrender the Premises to the Landlord in good condition, ordinary wear and tear
and damage from causes beyond the reasonable control of Tenant excepted. Except
as specifically provided herein, if any, to this Lease, Landlord shall have no
obligation whatsoever to alter, remodel, improve, repair, decorate or paint the
Premises or any part thereof, and the parties hereto affirm that Landlord has
made no representations to Tenant respecting the condition of the Premises or
the Building except as specifically herein set forth.
b. Landlord shall repair and maintain the structural portions of the
Building, including the basic plumbing, air conditioning, heating, and
electrical systems installed or furnished by Landlord, unless such maintenance
and repairs are caused in part or in whole by the act, neglect, fault or
omission of any duty by the Tenant, its agents, servants, employees or invitees,
in which case Tenant shall pay to Landlord the reasonable cost of such
maintenance and repairs. The cost of all such repairs (except repairs of
structural defects) shall be included in Operating Expenses as provided in
Article 7 hereof. Landlord shall not be liable for any failure to make any such
repairs or to perform any maintenance unless such failure shall persist for an
unreasonable time after written notice of the need of such repairs or
maintenance is given to Landlord by Tenant. Except as provided in Article 22
hereof, there shall be no abatement of rent and no liability of Landlord by
reason of any injury to or interference with Tenant's business arising from the
making of any repairs, alterations or improvements in or to any portion of the
Building or the Premises or in or to fixtures, appurtenances and equipment
therein. Tenant shall waive the right to make repairs at Landlord's expense
under any law, statute or ordinance now or hereafter in effect.
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12. LIENS. Tenant shall keep the Premises and the property in which the
Premises are situated free from any liens arising out of any work performed,
materials furnished or obligations incurred by Tenant. Landlord may require, at
Landlord's sole option, that Tenant shall provide to Landlord, at Tenant's sole
cost and expense, a lien and completion bond in an amount equal to one and one-
half (1-1/2) times any and all estimated cost of improvements, additions, or
alterations in the Premises, to insure Landlord against any liability for
mechanics' and materialmen's liens and to insure completion of the work.
13. ASSIGNMENT AND SUBLETTING. Tenant shall not either voluntarily or by
operation of law, assign, transfer, mortgage, pledge, hypothecate or encumber
this Lease or any interest therein, and shall not sublet the said Premises or
any part thereof, or any right or privilege appurtenant thereto, or suffer any
other person (the employees, agents, servants and invitees of Tenant excepted)
to occupy or use the said Premises, or any portion thereof, without the written
consent of Landlord first had and obtained, which consent shall not be
unreasonably withheld, and a consent to one assignment, subletting, occupation
or use by any other person shall not be deemed to be a consent to any subsequent
assignment, subletting, occupation or use by another person. Any such assignment
or subletting without such consent shall be void, and shall, at the option of
the Landlord, constitute a default under this Lease.
14. HOLD HARMLESS. Tenant shall indemnify and hold harmless Landlord
against and from any and all claims arising from Tenant's use of the Premises
for the conduct of its business or from any activity, work, or other thing done,
permitted or suffered by the Tenant in or about the Building, and shall further
indemnify and hold harmless Landlord against and from any and all claims arising
from any breach or default in the performance of any obligation on Tenant's part
to be performed under the terms of this Lease, or arising from any act or
negligence of the Tenant, or any officer, agent, employee, guest, or invitee of
Tenant, and from all and against all costs, attorneys' fees, expenses and
liabilities incurred in or about any such claim or any action or proceeding
brought thereon, and, in any case, action or proceeding be brought against
Landlord by reason of any such claim, Tenant, upon notice from Landlord shall
defend the same at Tenant's expense by counsel reasonably satisfactory to
Landlord. Tenant, as a material part of the consideration to Landlord, hereby
assumes all risk of damage to property or injury to persons, in, upon or about
the Premises, from any cause other than Landlord's negligence, and Tenant hereby
waives all claims in respect thereof against Landlord. Landlord or its agents
shall not be liable for any damage to property entrusted to employees of the
Building, nor for loss or damage to any property by theft or otherwise, nor for
any injury to or damage to persons or property resulting from fire, explosion,
falling plaster, steam, gas, electricity, water or rain which may leak from any
part of the Building or from the pipes, appliances or plumbing works therein or
from the roof, street or subsurface or from any other place resulting from
dampness or any other cause whatsoever, unless caused by or due to the
negligence of Landlord, its agents, servants or employees. Landlord or its
agents shall not be liable for interference with the light or other incorporeal
hereditament, loss of business by Tenant, nor shall Landlord be liable for any
latent defects in the Premises or in the Building. Tenant shall give prompt
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notice to Landlord in case of fire or accidents in the Premises or in the
Building or of defects therein or in the fixtures or equipment.
15. SUBROGATION. As long as their respective insurers so permit, Landlord
and Tenant hereby mutually waive their respective rights of recovery against
each other for any loss insured by fire, extended coverage and other property
insurance policies existing for the benefit of the respective parties. Each
party shall obtain any special endorsements, if required by their insurer to
evidence compliance with the aforementioned waiver.
16. LIABILITY INSURANCE. Tenant shall, at Tenant's expense, obtain and
keep in force during the term of this Lease a policy of comprehensive public
liability insurance of not less than One Million Dollars ($1,000,000.00)
insuring Landlord and Tenant against any liability arising out of the ownership,
use, occupancy or maintenance of the Premises and all areas appurtenant thereto.
The limit of said insurance shall not, however, limit the liability of the
Tenant hereunder. Tenant may carry said insurance under a blanket policy,
providing, however, said insurance by Tenant shall have a Landlord's protective
liability endorsement attached thereto. If Tenant shall fail to procure and
maintain said insurance, Landlord may, but shall not be required to, procure and
maintain same, but at the expense of Tenant. Insurance required hereunder, shall
be in companies rated A+, AAA or better in "Best's Insurance Guide." Tenant
shall deliver to Landlord prior to occupancy of the Premises copies of policies
of liability insurance required herein or certificates evidencing the existence
and amounts of such insurance with loss payable clauses satisfactory to
Landlord. No policy shall be cancelable or subject to reduction of coverage
except after ten (10) days' prior written notice to Landlord.
17. SERVICES AND UTILITIES. Provided that Tenant is not in default
hereunder, Landlord agrees to furnish to the Premises during reasonable hours of
generally recognized business days, to be determined by Landlord at its sole
discretion, and subject to the rules and regulations of the Building of which
the Premises are a part, electricity for normal lighting and fractional
horsepower office machines, heat and air conditioning required in Landlord's
reasonable judgment for the comfortable use and occupation of the Premises.
Landlord shall also maintain and keep lighted the common stairs, common entries
and toilet rooms in the Building of which the Premises are a part. Landlord
shall not be liable for, and Tenant shall not be entitled to, any reduction of
rental by reason of Landlord's failure to furnish any of the foregoing when such
failure is caused by accident, breakage, repairs, strikes, lockouts or other
labor disturbances or labor disputes of any character, or by any other cause,
similar or dissimilar, beyond the reasonable control of Landlord. Landlord shall
not be liable under any circumstances for a loss or injury to property, however
occurring, through or in connection with or incidental to failure to furnish any
of the foregoing. Wherever heat generating machines or equipment are used in the
Premises which affect the temperature otherwise maintained by the air
conditioning system, Landlord reserves the right to install supplementary air
conditioning units in the Premises and the cost thereof, including the cost of
installation, and the cost of operation and maintenance thereof shall be paid by
Tenant to Landlord upon demand by Landlord.
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Tenant will not, without written consent of Landlord, use any apparatus or
device in the Premises, including, but without limitation thereto, electronic
data processing machines, punch card machines, and machines using in excess of
120 volts, which will in any way increase the amount of electricity usually
furnished or supplied for the use of the Premises as general office space; nor
connect with electric current except through existing electrical outlets in the
Premises any apparatus or device, for the purpose of using electric current. If
Tenant shall require water or electric current in excess of that usually
furnished or supplied for the use of the Premises as general office space,
Tenant shall first procure the written consent of Landlord, which Landlord may
refuse, to the use thereof and Landlord may cause a water meter or electrical
current meter to be installed in the Premises, so as to measure the amount of
water and electric current consumed for any such use. The cost of any such
meters and of installation, maintenance and repair thereof shall be paid for by
the Tenant and Tenant agrees to pay to Landlord promptly upon demand therefor by
Landlord for all such water and electric current consumed as shown by said
meters at the rates charged for such services by the local public utility
furnishing the same, plus any additional expense incurred in keeping account of
the water and electric current so consumed. If a separate meter is not
installed, such excess cost for such water and electric current will be
established by an estimate made by a utility company or electrical engineer.
18. PROPERTY TAXES. Tenant shall pay, or cause to be paid, before
delinquency, any and all taxes levied or assessed and which become payable
during the term hereof upon all Tenant's leasehold improvements, equipment,
furniture, fixtures and personal property located in the Premises; except that
which has been paid for by Landlord, and is the standard of the Building. In the
event any or all of Tenant's leasehold improvements, equipment, furniture,
fixtures and personal property shall be assessed and taxed with the Building,
Tenant shall pay to Landlord its share of such taxes within ten (10) days after
delivery to Tenant by Landlord of a statement in writing setting forth the
amount of such taxes applicable to Tenant's property.
19. RULES AND REGULATIONS. Tenant shall faithfully observe and comply with
the rules and regulations that Landlord shall, from time to time, promulgate.
Landlord reserves the right, from time to time, to make all reasonable
modifications to said rules. The additions and modifications to those rules
shall be binding upon Tenant upon delivery of a copy of them to Tenant. Landlord
shall not be responsible to Tenant for the nonperformance of any said rules by
any other tenants or occupants.
20. HOLDING OVER. If Tenant remains in possession of the Premises or any
part after the expiration of the term hereof, without the express written
consent of Landlord, such occupancy shall be a tenancy from month-to-month at a
rental in the amount of the last monthly rental, plus all other charges payable
hereunder, and upon all the terms hereof applicable to a month-to-month tenancy.
21. ENTRY BY LANDLORD. Landlord reserves, and shall at any and all times,
reasonably have the right to enter the Premises, inspect the same, and any
service to be provided by Landlord to Tenant hereunder, to submit said Premises
to prospective purchasers or tenants, to post
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notices of non-responsibility, and to alter, improve or repair the Premises and
any portion of the Building of which the Premises are a part that Landlord may
deem necessary or desirable, without abatement of rent and may for that purpose
erect scaffolding and other necessary structures where reasonably required by
the character of the work to be performed, always providing that the entrance to
the Premises shall not be blocked thereby, and further providing that the
business of the Tenant shall not be interfered with unreasonably; and provided
further, such entry shall be limited as required by national banking laws and in
the presence of a Tenant representative during normal and usual business hours.
Tenant hereby waives any claim for damages or for any injury or inconvenience to
or interference with Tenant's business, any loss of occupancy or quiet enjoyment
of the Premises, and any other loss occasioned thereby. For each of the
aforesaid purposes, Landlord shall, at all times, have and retain a key with
which to unlock all of the doors in, upon and about the Premises, excluding
Tenant's vaults, safes and files, and Landlord shall have the right to use any
and all means which Landlord may deem proper to open said doors in an emergency,
in order to obtain entry to the Premises without liability to Tenant except for
any failure to exercise due care for Tenant's property. Any entry to the
Premises obtained by Landlord by any of said means, or otherwise shall not,
under any circumstances, be construed or deemed to be a forcible or unlawful
entry into, or a detainer of, the Premises, or an eviction of Tenant from the
Premises or any portion thereof.
22. RECONSTRUCTION. In the event the Premises or the Building of which the
Premises are a part are damaged by fire or other perils covered by extended
coverage insurance, Landlord agrees to forthwith repair the same; and this Lease
shall remain in full force and effect, except that the Tenant shall be entitled
to a proportionate reduction of the rent while such repairs are being made, such
proportionate reduction to be based upon the extent to which the making of such
repairs shall materially interfere with the business carried on by the Tenant in
the Premises. If the damage is due to the fault or neglect of Tenant or its
employees, there shall be no abatement of rent.
In the event the Premises or the Building of which the Premises are a part
are damaged as a result of any cause other than the perils covered by fire and
extended coverage insurance, then Landlord shall forthwith repair the same,
provided the extent of the destruction be less than twenty-five percent (25%) of
the then full replacement cost of the Premises or the Building of which the
Premises are a part. In the event the destruction of the Premises or the
Building is to an extent greater than twenty-five percent (25%) of the full
replacement cost, then Landlord shall have the option: (1) to repair or restore
such damage, this Lease continuing in full force and effect, but the rent to be
proportionately reduced as hereinabove in this Article provided; or (2) give
notice to Tenant at any time within sixty (60) days after such damage
terminating this Lease as of the date specified in such notice, which date shall
be no less than thirty (30) and no more than sixty (60) days after the giving of
such notice. In the event of giving such notice, this Lease shall expire and all
interest of the Tenant in the Premises shall terminate on the date so specified
in such notice and the Rent, reduced by a proportionate amount, based upon the
extent, if any, to which such damage materially interfered with the business
carried on by the Tenant in the Premises, shall be paid up to date of said such
termination. Notwithstanding anything to the contrary contained in this Article,
Landlord shall not have any obligation whatsoever to repair, reconstruct or
restore the Premises when
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the damage resulting from any casualty covered under this Article occurs during
the last twelve (12) months of the term of this Lease or any extension thereof.
Landlord shall not be required to repair any injury or damage by fire or
other cause, or to make any repairs or replacements of any panels, decoration,
office fixtures, railings, floor coverings, or partitions, with respect to
property installed in the Premises by Tenant.
The Tenant shall not be entitled to any compensation or damages from
Landlord for loss of the use of the whole or any part of the Premises, Tenant's
personal property or any inconvenience or annoyance occasioned by such damage,
repair, reconstruction or restoration.
23. DEFAULT. The occurrence of any one or more of the following events
shall constitute a default and breach of this Lease by Tenant:
a. The vacating or abandonment of the Premises by Tenant
b. The failure by Tenant to make any payment of rent or any other
payment required to be made by Tenant hereunder, as and when due, where such
failure shall continue for a period of three (3) days after written notice is
received by Tenant from Landlord.
c. The failure by Tenant to observe or perform any of the covenants,
conditions or provisions of this Lease to be observed or performed by the
Tenant, other than described in Article 23.b above, where such failure shall
continue for a period of thirty (30) days after written notice thereof by
Landlord to Tenant; provided, however, that if the nature of Tenant's default is
such that more than thirty (30) days are reasonably required for its cure, then
Tenant shall not be deemed to be in default if Tenant commences such cure within
said thirty (30) day period and thereafter diligently prosecutes such cure to
completion.
d. The making by Tenant of any general assignment or general
arrangement for the benefit of creditors; or the filing by or against Tenant of
a petition to have Tenant adjudged a bankrupt, or a petition of reorganization
or arrangement under any law relating to bankruptcy (unless, in the case of a
petition filed against Tenant, the same is dismissed within sixty [60] days); or
the appointment of a trustee or a receiver to take possession of substantially
all of Tenant's assets located at the Premises or of Tenant's interest in this
Lease, where possession is not restored to Tenant within thirty (30) days; or
the attachment, execution or other judicial seizure of substantially all of
Tenant's assets located at the Premises or of Tenant's interest in this Lease,
where such seizure is not discharged in thirty (30) days.
24. REMEDIES IN DEFAULT. In the event of any such default or breach by
Tenant, Landlord may at any time thereafter, with or without notice or demand,
and without limiting Landlord in the exercise of a right or remedy which
Landlord may have by reason of such default or breach:
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a. Terminate Tenant's right to possession of the Premises by any
lawful means, in which case this Lease shall terminate and Tenant shall
immediately surrender possession of the Premises to Landlord. In such event
Landlord shall be entitled to recover from Tenant all damages incurred by
Landlord by reason of Tenant's default including, but not limited to, the cost
of recovering possession of the Premises; expenses of reletting, including
necessary renovation and alteration of the Premises, reasonable attorneys' fees,
any real estate commission actually paid; the worth at the time of award by the
court having jurisdiction thereof of the amount by which the unpaid rent for the
balance of the term after the time of such award exceeds the amount of such
rental loss for the same period that Tenant proves could be reasonably avoided;
that portion of the leasing commission paid by Landlord and applicable to the
unexpired term of the Lease. Unpaid installments of rent or other sums shall
bear interest from the date due at the rate of twenty percent (20%) per annum.
In the event Tenant shall have abandoned the Premises, Landlord shall have the
option of (a) taking possession of the Premises and recovering from Tenant the
amount specified in this paragraph, or (b) proceeding under the provisions of
the following Article 24.b.
b. Maintain Tenant's right to possession, in which case this Lease
shall continue in effect whether or not Tenant shall have abandoned the
Premises. In such event, Landlord shall be entitled to enforce all of Landlord's
rights and remedies under this Lease, including the right to recover the rent as
it becomes due hereunder.
c. Pursue any other remedy now or hereafter available to Landlord
under the laws or judicial decision of the State in which the Premises are
located.
25. EMINENT DOMAIN. If more than twenty-five percent (25%) of the Premises
shall be taken or appropriated by any public or quasi-public authority under the
power of eminent domain, either party hereto shall have the right, at its
option, to terminate this Lease, and Landlord shall be entitled to any and all
income, rent, award, or any interest therein whatsoever which may be paid or
made in connection with such public or quasi-public use or purpose, and Tenant
shall have no claim against Landlord for the value of any unexpired term of this
Lease. If either less than or more than twenty-five (25%) of the premises is
taken, and neither party elects to terminate as herein provided, the rental
thereafter to be paid shall be equitably reduced. If any part of the Building
other than the Premises may be so taken or appropriated, Landlord shall have the
right at its option to terminate this Lease and shall be entitled to the entire
award as above provided.
26. ESTOPPEL STATEMENT. Tenant shall at any time and from time to time
upon not less than ten (10) days' prior written notice from Landlord execute,
acknowledge, and deliver to Landlord a statement in writing, (a) certifying that
this Lease is unmodified and in full force and effect (or, if modified, stating
the nature of such modification and certifying that this Lease as so modified,
is in full force and effect), and the date to which the rental and other charges
are paid in advance, if any, and (b) acknowledging that there are not, to
Tenant's knowledge, any uncured defaults on the part of the Landlord hereunder,
or specifying such defaults if any are claimed. Any such statement may be relied
upon by any prospective purchaser or encumbrancer of all or any portion of the
real property of which the Premises are a part.
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27. PARKING. Tenant shall have the use of four (4) parking permits, so
long as available to Landlord, for City parking lots located within a five block
radius of building of which the Premises are a part. Tenant will be billed
quarterly for these permits the months of January, April, July, and October and
shall pay therefor at the time of paying rent for said months.
28. AUTHORITY OF PARTIES.
a. Corporate Authority. If Tenant is a corporation, each individual
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executing this Lease on behalf of said corporation represents and warrants that
he is duly authorized to execute and deliver this Lease on behalf of the
corporation, in accordance with a duly adopted resolution of the board of
directors of said corporation or in accordance with the bylaws of said
corporation, and that this Lease is binding upon said corporation in accordance
with its terms.
b. Limited Partnerships. If the Landlord herein is a limited
--------------------
partnership, it is understood and agreed that any claims by Tenant on Landlord
shall be limited to the assets of the limited partnership, and furthermore,
Tenant expressly waives any and all rights to proceed against the individual
partners or the officers, directors or shareholders of any corporate partner,
except to the extent of their interest in said limited partnership.
29. GENERAL PROVISIONS.
a. Plats and Riders. Clauses, plats and riders, if any, signed by
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the Landlord and the Tenant and endorsed on or affixed to this Lease are a part
hereof.
b. Waiver. The waiver by Landlord of any term, covenant, or
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condition herein contained shall not be deemed to be a waiver of such term,
covenant or condition or any subsequent breach of the same or any other term,
covenant or condition herein contained. The subsequent acceptance of rent
hereunder by Landlord shall not be deemed to be a waiver of any preceding breach
by Tenant of any term, covenant or condition of this Lease, other than the
failure of the Tenant to pay the particular rental so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of the acceptance of
such rent.
c. Notices. All notices and demands which may or are to be required
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or permitted to be given by either party to the other hereunder shall be in
writing. All notices and demands by the Landlord to the Tenant shall be sent by
United States Mail, postage prepaid, addressed to the Tenant at the Premises, or
to such other place as Tenant may, from time to time, designate in a notice to
the Landlord. All notices and demands by the Tenant to the Landlord shall be
sent by United States Mail, postage prepaid, addressed to the Landlord at the
Office of the Building, or to such other person or place as the Landlord may,
from time to time, designate in a notice to the Tenant.
d. Joint Obligation. If there be more than one Tenant the
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obligations hereunder imposed upon Tenants shall be joint and several.
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e. Marginal Headings. The marginal headings and Article titles to
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the Articles of this Lease are not a part of this Lease and shall have no effect
upon the construction or interpretation of any part hereof.
f. Time. Time is of the essence of this Lease and each and all of
----
its provisions in which performance is a factor.
g. Successors and Assigns. The covenants and conditions herein
----------------------
contained, subject to the provisions as to assignment, apply to and bind the
heirs, successors, executors, administrators and assigns of the parties hereto.
h. Recordation. Neither the Landlord nor Tenant shall record this
-----------
Lease or a short form memorandum hereof without the prior written consent of the
other party.
i. Quiet Possession. Upon Tenant paying the rent reserved hereunder
----------------
and observing and performing all of the covenants, conditions and provisions of
Tenant's part to be observed and performed hereunder, Tenant shall have quiet
possession of the Premises for the entire term hereof, subject to all the
provisions of this Lease.
j. Late Charges. Tenant hereby acknowledges that late payment by
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Tenant to Landlord of rent or other sums due hereunder will cause Landlord to
incur costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges, and late charges which may be imposed upon
Landlord by terms of any mortgage or trust deed covering the Premises.
Accordingly, if any installment of rent or of a sum due from Tenant shall not be
received by Landlord or Landlord's designee within five (5) days after said
amount is due, then Tenant shall pay to Landlord a late charge equal to five
percent (5%) of such overdue amount. The parties hereby agree that such late
charges represent a fair and reasonable estimate of the cost that Landlord will
incur by reason of the late payment by Tenant. Acceptance of such late charges
by the Landlord shall in no event constitute a waiver of Tenant's default with
respect to such overdue amount, nor prevent Landlord from exercising any of the
other rights and remedies granted hereunder.
k. Prior Agreements. This Lease contains all of the agreements of
----------------
the parties hereto with respect to any matter covered or mentioned in this
Lease, and no prior agreements or understanding pertaining to any such matters
shall be effective for any purpose. No provision of this Lease may be amended or
added to except by an agreement in writing signed by the parties hereto or their
respective successors in interest. This Lease shall not be effective or binding
on any party until fully executed by both parties hereto.
l. Attorneys' Fees. In the event of any action or proceeding
---------------
brought by either party against the other under this Lease, the prevailing party
shall be entitled to recover all costs and expenses, including the fees of its
attorneys in such action or proceeding in such amount as the court may adjudge
reasonable as attorneys' fees.
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m. Sale of Premises by Landlord. In the event of any sale of the
----------------------------
Building, Landlord shall be and is hereby entirely freed and relieved of all
liability under any and all of its covenants and obligations contained in or
derived from this Lease arising out of any act, occurrence or omission occurring
after the consummation of such sale; and the purchaser, at such sale or any
subsequent sale of the Premises, shall be deemed, without any further agreement
between the parties or their successors in interest or between the parties and
any such purchaser, to have assumed and agreed to carry out any and all of the
covenants and obligations of the Landlord under this Lease.
n. Subordination, Attornment. Upon request of the Landlord, Tenant
-------------------------
will, in writing, subordinate its rights hereunder to the lien of any first
mortgage or first deed of trust to any bank, insurance company or other lending
institution, now or hereafter in force against the land and Building of which
the Premises are a part, and upon any buildings hereafter placed upon the land
of which the Premises are a part, and to all advances made or hereafter to be
made upon the security thereof.
In the event any proceedings are brought for foreclosure, or in the
event of the exercise of the power of sale under any mortgage or deed of trust
made by the Landlord covering the Premises, the Tenant shall attorn to the
purchaser upon any such foreclosure or sale and recognize such purchaser as the
Landlord under this Lease.
The provisions of this Article to the contrary notwithstanding, and so
long as Tenant is not in default hereunder, this Lease shall remain in full
force and effect for the full term hereof.
o. Name. Tenant shall not use the name of the Building or of the
----
development in which the Building is situated for any purpose other than as an
address of the business to be conducted by the Tenant in the Premises.
p. Separability. Any provision of this Lease which shall prove to
------------
be invalid, void or illegal shall in no way affect, impair or invalidate any
other provision hereof and such other provision shall remain in full force and
effect.
q. Cumulative Remedies. No remedy or election hereunder shall be
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deemed exclusive but shall, wherever possible, be cumulative with all other
remedies at law or in equity.
r. Choice of Law. This Lease shall be governed by the laws of the
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State in which the Premises are located.
s. Signs and Auctions. Tenant shall seek Landlord's written approval
------------------
for any signage to be place upon the Premises or Building, such approval shall
not be unreasonably withheld. Any signage is subject to the City of Boulder Sign
Code. Tenant shall not conduct any auction thereon without Landlord's prior
written consent.
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t. Landlord's Liability. The liabilities of Landlord, pursuant to
--------------------
this Lease, shall be limited to the assets of Landlord. Tenant, its successors
and assigns, hereby waives all right to proceed against any of the officers,
shareholders, or directors of Landlord. The term "Landlord," as used in this
article, shall mean only the owner or owners at the time in question of the fee
title or an interest in a ground lease of the building. Notwithstanding
anything to the contrary contained herein, the extent of Landlord's liability
under this Lease shall be limited to the property of which the Premises herein
are a part, and Tenant shall not seek any personal liability against Landlord or
any of Landlord's shareholders.
u. Waiver of Jury Trial. Landlord and Tenant waive trial by jury in
--------------------
any action, proceeding or counterclaim brought by either of the parties to this
Lease against the other on any matters whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant, Tenant's use
of occupancy of the Premises, or any other claims (except claims for personal
injury or property damage), and any emergency statutory or any other statutory
remedy.
v. Arbitration. With the exception of an action to gain possession
-----------
of the Premises, in the event of any other dispute arising out of this
Agreement, the parties agree to submit that dispute to binding arbitration in
Boulder, Colorado, according to the then existing rules for commercial
arbitration of the American Arbitration Association. Either of the parties shall
agree to submit the dispute to the Judicial Arbiter Group, or if they do not so
agree, then each party shall appoint one (1) arbitrator. Those two (2)
arbitrators shall select a third (3rd) arbitrator. The dispute shall be heard
within forty-five (45) days of selection of the third arbitrator. The prevailing
party shall be entitled to recover costs and attorneys' fees in addition to any
other relief to which they may be entitled. A decision shall be rendered no
later than ten (10) days after the close of the arbitration hearing.
w. Financial Statements. Tenant and any guarantors of Tenant's
--------------------
obligations hereunder shall provide their most recent financial statement(s),
including statements of income and expense and statements of net worth within 15
days following the request of Landlord. Landlord may request said statements
once during any twelve (12) month period. Said statements shall be verified as
being true and correct and Landlord agrees to keep said statements confidential,
but may use the statements for purposes of obtaining financing upon the
property. At the time Landlord requests financial statements from Tenant,
Landlord shall advise Tenant to whom the statements will be submitted and
Landlord shall, if requested to do so by Tenant, obtain dram such individual or
entity a written agreement which shall provide that said financial statements
will be and shall remain confidential. Within fifteen days after the execution
of this Lease, Tenant shall submit to Landlord its most recent financial
statements.
x. Both Landlord and Tenant agree to act reasonably when acting or
being requested to act in accordance with the terms and conditions of this
Lease.
30. BROKERS. Tenant warrants that it has had no dealings with any real
estate brokers or agents in connection with the negotiation of this Lease
excepting only The Colorado Group, Inc.
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and it knows of no other real estate broker or agent who is entitled to a
commission in connection with this Lease.
31. MISCELLANEOUS
a. Tenant shall use its best efforts to obtain charter approval in a
timely manner, but not later than 90 days from the execution of this Lease
agreement. The payment of rent shall commence upon branch approval, but not
sooner than September 1, 1995, nor later than November 1, 1995. This Lease
agreement is subject to Tenant receiving branch approval on or before November
1, 1995. If Tenant fails to receive branch approval on or before November 1,
1995, this Lease Agreement shall be null and void and of no further effect.
b. A non-refundable deposit of SIX THOUSAND SEVEN HUNDRED FIFTY
DOLLARS AND 00/100 ($6, 750.00) will be made at time of lease execution, and
shall be applied to the basic rent, operating expenses and security deposit if
the bank charter is approved. Landlord agrees to remove the space from the
market while awaiting charter approval.
c. Tenant at its expense shall have the right to install a night
deposit box in a location mutually agreed upon by Landlord and Tenant.
d. Any improvements or alterations made for Tenant's use of the
Premises, except carpeting and the eastern hallway providing access to the rest
room facilities, shall be at Tenant's expense and must be approved in writing by
Landlord prior to the commencement of construction. Such approval shall not be
unreasonably withheld. Tenant shall use Landlord's contractor or another
contractor approved by Landlord, pursuant to the provisions of Paragraph 10
hereof.
e. Janitorial Service. Tenant shall provide janitorial service
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within the Premises at its own expense.
f. Extended Lease Periods. Upon full and complete performance of all
----------------------
the terms, covenants and conditions herein contained by Tenant and payment of
all rental due under the terms hereof, Tenant shall have the option to renew
this Lease for one additional term of one (1) year. In the event Tenant desires
to exercise said option, Tenant shall give written notice of such fact to
Landlord not less than ninety (90) days nor more than one hundred twenty days
(120) prior to the expiration of the then current term of the Lease. In the
event of such exercise, this Lease shall be deemed to be extended for the
additional period; provided, however, the basic rental shall be at the then
current market rate.
g. Option. Tenant shall have an option to lease office number 124.
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This option will expire 18 months from occupancy date. Tenant shall pay all
costs to remove the dividing wall between the Premises and office number 124.
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The parties hereto have executed this Lease at the place and on the dates
specified immediately adjacent to their respective signatures.
If this Lease has been filled in, it has been prepared for submission to
Tenant's attorney for his approval. No representation or recommendation is made
by the real estate broker or its agents or employees as to the legal
sufficiency, legal effect, or tax consequences of this Lease, or the
transactions relating thereto.
LANDLORD: TENANT:
CHRISMAN, BYNUM, AND EQUITABLE BANK OF LITTLETON
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By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Secretary
Senior Vice President
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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