CANYON CENTER
OFFICE LEASE
(RCG/▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc.)
In consideration of the rents and covenants hereinafter set forth, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, INC., a Colorado corporation ("Landlord") hereby leases to the
Tenant named in Article D of Section I, and Tenant hereby hires from Landlord,
the premises described in Article G of Section I (the "demised premises") upon
the conditions set forth in this Office Lease.
SECTION I
FUNDAMENTAL LEASE PROVISIONS
A. Date of Lease: December 14, 1994.
B. Building Rentable Area: 71,220 square feet.
C. Landlord: ▇.▇. ▇▇▇▇▇▇▇▇▇▇, INC., a Colorado corporation.
D. Tenant: RCG/▇▇▇▇▇▇ Bailly, Inc., a District of Columbia corporation
E. Trade Name (if any): N/A
F. Guarantor (if any): None
G. Demised Premises:
A portion of Floor 2 and a portion of Floor 3, as shown cross-hatched
in black on the plan attached as Exhibits A-1 and A-2 and made a part
hereof, to be known as Suite 317 in the office building known as Canyon
Center, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (the "Building"), together
with the right, subject to the provisions of Section II, Article 38, to
use on an unassigned basis 59 parking spaces in the covered parking
garage adjacent to the Building (the "Parking Garage").
H. Demised Premises Rentable Area:
19,473 square feet as depicted on Exhibit A-1 from Commencement Date
through December 31, 1995 and 24,046 square feet as depicted on
Exhibits A-1, and A-2 from January 1, 1996 through August 31, 2001.
Landlord reserves the right to remeasure the Building and demised
premises from time to time according to applicable BOMA measurement
standards. If measurements are different than the areas originally
contained in the lease, then relevant provisions of the lease will be
adjusted, including but not
-1-
limited to the following: Building Rentable Area, Demised Premises
Rentable Area, measurement standards. If measurements are different
than the areas originally contained in the lease, then relevant
provisions of the lease will be adjusted, including but not Limited to
the following: Building Rentable Area, Demised Premises Rentable Area,
Tenant's Percentage, Base Annual Rent, Tenant's Percentage of the
Operating Costs, and other terms, rates or provisions affected by
changes in the above.
I. Lease Term:
7 years, beginning January 1, 1995 (the "Commencement Date"), and
ending December 31, 2001 (the "Expiration Date").
J. Base Annual Rent:
(i) From the Commencement Date through August 31, 1995 an
annual rate of $248,280.75, payable in monthly
installments of $20,690.06 (Base Annual Rent being
calculated at $12.75 per square foot of rentable area
per annum);
(ii) From September 1, 1995 through December 31, 1995 an
annual rate of $253,149.00, payable in monthly
installments of $21,095.75 (Base Annual Rent being
calculated at $13.00 per square foot of rentable area
per annum);
(iii) From January 1, 1996 through July 31, 1996 an annual
rate of $336,644.00, payable in monthly installments
of $28,053.67 (Base Annual Rent being calculated at
$14.00 per square foot of rentable area per annum);
(iv) From August 1, 1996 through the Expiration Date an
annual rate of $348,667.00, payable in monthly
installments of $29,055.58 (Base Annual Rent being
calculated at $14.50 per square foot of rentable area
per annum) subject to an annual increase pursuant to
the terms of Section II, Article 36.
K. Use of Demised Premises: General office.
L. Addresses for Notice (Section II, Article 23):
-2-
To Tenant: RCG/▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
To Landlord: ▇.▇. ▇▇▇▇▇▇▇▇▇▇, Inc.
▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇. ▇. ▇▇▇▇▇▇▇▇▇▇, III
M. Security Deposit: None
N. Broker(s): None.
O. Tenant's Percentage:
(i) From Commencement Date through
December 31, 1996 27.34%
(ii) From January 1, 1996 through
August 31, 2001 33.76%
SECTION II
GENERAL LEASE PROVISIONS
1. DEMISED PREMISES
Landlord hereby leases to Tenant and Tenant hereby hires from Landlord
the demised premises.
Term
The term of this lease shall be for the term specified in Article I of
Section I unless terminated earlier as provided in this lease.
Rent
Tenant shall pay Landlord the Base Annual Rent specified in Article J
of Section I. Tenant agrees to pay Base Annual Rent in equal monthly
installments as specified in Article J of Section I in advance on the first day
of each calendar month during the term, at the office of Landlord or such other
place as Landlord may designate, without set-off or deduction. Tenant shall pay
the first monthly installment on or before the Commencement Date.
-3-
Time is of the essence of this lease and, in addition to all other
remedies available to Landlord hereunder, all sums not paid when due shall bear
interest at a rate (the "lease rate") equal to 4% over the annual prime rate of
interest announced publicly by Colorado National Bank, N.A. in Denver, Colorado,
or its successor, from time to time from the due date until paid in full;
provided, however, that no interest shall accrue upon monthly installments of
rent paid on or before the expiration of five (5) business days from the date
due.
In addition to Base Annual Rent, Tenant shall pay the amount of any
rental adjustments and additional payments as and when provided in this lease.
All amounts payable by Tenant to Landlord under this lease shall be deemed to be
rent and shall be payable and recoverable as rent in the manner provided, and
the Landlord shall have all rights against Tenant for default in any such
payment as in the case of arrears of Base Annual Rent. Tenant's obligation to
pay rent shall survive the expiration or earlier termination of this lease. Rent
shall be paid to Landlord without set-off or deduction in legal tender. Tenant's
obligation to pay rent shall survive the expiration or earlier termination of
this lease. If the term ends on a day other than the last day of a calendar
month, the installment of Base Annual Rent payable on the first day of the last
calendar month of the term shall be prorated at the rate of one-thirtieth
(1/30th) of the installment of Base Annual Rent per year.
Tenant Improvements
Tenant agrees to accept the demised premises "AS IS" and without any
further improvement or alteration whatsoever. Notwithstanding the foregoing,
Landlord agrees to provide Tenant with an allowance to reimburse Tenant for
costs and expenses incurred by Tenant in constructing improvements upon the
demised premises (the "Tenant Improvements") in the amount of One Hundred
Forty-Four Thousand One Hundred Twenty and No/100 Dollars ($144,120.00) (the
"Tenant Improvement Allowance"). Tenant and Landlord acknowledge that the Tenant
Improvement Allowance includes Twenty-Three Thousand Eight Hundred Ninety and
No/100 Dollars ($23,890.00) which remained available to Tenant under the Prior
Leases (as hereinafter defined). The construction of Tenant Improvements shall
be governed by and subject to the provisions of Article 5. The Tenant
Improvement Allowance shall be provided to Tenant under the following
conditions:
(A) Tenant shall be entitled to submit to Landlord a request
for reimbursement (each a "Request for Reimbursement") from the Tenant
Improvement Allowance not more often than one time in each calendar
month during the term of this lease;
(B) Each Request for Reimbursement shall be in an amount of
not less than Five Thousand and No/100 Dollars ($5,000.00); provided,
however, that the final Request for Reimbursement may be less than Five
Thousand and No/100 Dollars ($5,000.00);
-4-
(C) Each Request for Reimbursement shall be accompanied with
true and correct copies of all invoices, statements and other documents
reasonably evidencing Tenant's incurrence of all amounts included
within such Request for Reimbursement;
(D) Tenant shall not be permitted to request disbursement from
the Tenant Improvement Allowance in excess of Twenty-Three Thousand
Eight Hundred Ninety and No/100 Dollars ($23,890.00) prior to January
1, 1996;
(E) Landlord agrees, within ten (10) days after the
satisfaction of the conditions set forth in paragraph (D) above to pay
to Tenant the amount contained in the Request for Reimbursement;
provided, however, that Landlord shall not be obligated to disburse
funds from the Tenant Improvement Allowance or pay a Request for
Reimbursement at any time Tenant is in default in the performance of
any of its obligations under this Lease. Tenant shall deliver to
Landlord, within ten (10) days after any payment of a Request for
Reimbursement, copies of cancelled checks or other documents reasonably
evidencing Tenant's payment in full of all amounts comprising such
Request for Reimbursement.
2. OPERATING COSTS
Tenant shall pay, as additional rent, Tenant's Percentage of the
Operating Costs, as more fully explained below.
(A) "Operating Costs" means the sum of the following
pertaining to a calendar year:
(1) Taxes and assessments upon or pertaining to the
Building and the land upon which the Building is located
described in Exhibit B (the "real property") and any other
areas used in connection with the operation of the Building,
imposed by federal, state or local governments, but not
including income, franchise, capital stock, estate or
inheritance taxes, but including gross receipts taxes
regarding rentals and other payments under this lease and
other business taxes imposed regarding this lease. If, because
of any change in the method of taxation of real estate, any
tax or assessment is imposed upon Landlord, the Building, the
real property, the areas used in connection with the operation
of the Building, or the rents or income therefrom, in
substitution for or in lieu of any tax or assessment which
would otherwise be a real estate tax or assessment subject
matter, such other tax or assessment shall be included in the
determination of Operating Costs;
(2) Wage and labor costs applicable to the persons
engaged in the management, operation, maintenance, overhaul or
repair of the Building, the real
-5-
property and the areas used in connection with the operation
of the Building, whether they be employed by Landlord or by an
independent contractor with whom Landlord shall have
contracted or may contract for such services;
(3) Cost of utilities, fuel, building supplies
and materials, insurance, and service contracts;
(4) Alterations to the Building, the real property or
the areas used in connection with the operation of the
Building for life safety systems or energy conservation
required by any governmental or quasi-governmental authority
having jurisdiction over the Building (together with all
costs, and interest thereon at a rate equal to the annual
prime rate of interest announced publicly by Colorado National
Bank, N.A. in Denver, Colorado, or its successor, from time to
time plus one percent (1%) incurred in connection with any
such alterations) all amortized over their useful life (as
reasonably determined by Landlord using tax accounting
principles), except that any such costs (and the interest
thereon) incurred in connection with alterations for energy
conservation may, at Landlord's election, be amortized at a
yearly rate equal to the savings realized during such period
as a result of such alteration or replacement. Tenant shall be
liable only for Tenant's Percentage of the annual amortized
cost of such improvements during the term of this lease, and
no liability therefor shall survive the expiration of the
lease term;
(5) Reasonable consultant, management and
professional fees, including reasonable attorneys' fees
associated with the operation, maintenance and repair of the
Building, the real property and the areas used in connection
with the operation of the Building; and
(6) Such other items as are included in the cost to
Landlord of owning, managing, operating, maintaining,
overhauling and repairing the Building, the real property and
the areas used in connection with the operation of the
Building in accordance with accepted accounting or management
principles or practices including, but not limited to, hazard,
liability, flood and rent loss insurance and the replacement
and refitting of building operating components.
Notwithstanding the listing of categories of Operating Costs in this section, it
is agreed and understood that this lease is net to Landlord and that Tenant
shall pay Tenant's Percentage of all costs of any kind properly allocable to the
Building, foreseen or unforeseen. In determining the amount of Operating Costs
for the purpose of this Article, for any calendar year, (i) if less than 95% of
the Building shall have been occupied by tenants and fully used by them at any
time during such Year, Operating Costs shall be increased to an amount equal to
the like Operating Costs which would normally be expected to be incurred had
such occupancy been 95% and had such full utilization been made during the
entire period, and (ii) if Landlord is not furnishing any
-6-
particular work or service (the cost of which if performed by Landlord would
constitute an Operating Cost) to a tenant who has undertaken to perform such
work or service in lieu of the performance thereof by Landlord, Operating Costs
shall be deemed to be increased by an amount equal to the additional Operating
Costs which would reasonably have been incurred during such period by Landlord
if it had at its own expense furnished such work or service to such Tenant.
(B) On or before the 1st day of April in the calendar year
immediately following the calendar year in which the term commences and
on or before that day in each subsequent year, and on or before the 1st
day of April immediately following the expiration or earlier
termination of the term, Landlord will furnish a statement of the
Operating Costs applicable to the calendar Year preceding the Year in
which the statement is submitted, and the amount to be paid as
additional rent. The failure of Landlord to furnish a statement for any
year in accord with this subsection (B) shall be without prejudice to
the right of Landlord to furnish statements in subsequent years.
Landlord further reserves the right to submit additional statements
from time to time in any calendar year as Landlord deems necessary in
its discretion to accurately reflect and timely collect the Tenant's
Percentage of Operating Costs. In the event that Landlord shall, for
any reason, be unable to furnish a statement on or before April 1st of
any year, the Landlord may furnish the statement as soon thereafter as
practicable, with the same force and effect as if timely delivered.
(C) Payment of Tenant's Percentage of Operating Costs.
(1) On the first day of the month following the
furnishing of a statement, Tenant shall forthwith pay to
Landlord a sum equal to one-twelfth (1/12th) of Tenant's
Percentage of Operating Costs, such payment multiplied by the
number of months then elapsed commencing with January 1st of
the preceding calendar year (provided, however, that if the
term commenced in the preceding calendar year, Tenant shall
pay, concurrently with the next monthly installment of rent
due, Landlord a sum equal to one-twelfth (1/12th) of Tenant's
Percentage multiplied by the number of months then elapsed,
commencing with the month in which the term of this lease
commenced), and , in advance, one-twelfth (1/12th) of Tenant's
Percentage with respect to the then current months.
Thereafter, until a different statement is submitted, the
monthly installments of rent payable under this lease shall be
increased by an amount equal to one-twelfth (1/12th) of
Tenant's Percentage of the Operating Costs. In the event a
statement shows an increase in rent, then the rent payable by
Tenant shall be adjusted proportionately consistent with the
foregoing provisions. The rent due to Landlord or the credit
due to Tenant, as disclosed by the statement furnished by
Landlord, shall be paid or given within thirty (30) days after
the receipt of such statement.
-7-
(2) Prior to the determination of the Operating Costs
for any particular calendar year (or portion thereof) during
the term, Landlord may at any time and from time to time
estimate the amount of such operating Costs. If, in the
estimation of Landlord, the Operating Costs for such calendar
year will exceed the Operating Costs for the preceding
calendar year, Landlord will notify Tenant of the amount of
such estimated excess and Tenant shall forthwith (a) pay,
commencing on the first day of each succeeding calendar month,
one-twelfth (1/12th) of Tenant's Percentage of such excess,
calculated in accordance with this Article, and (b) pay to
Landlord a sum equal to one-twelfth (1/12th) of Tenant's
Percentage of such excess multiplied by the number of months
then elapsed commencing with January 1st of such calendar year
through and including the month in which such payment is made.
Landlord agrees to provide Tenant with a description of the
basis and justification for Landlord's estimated increases in
Operating Costs. Upon the determination of the Operating Costs
for such calendar year, as reflected in a statement described
above, appropriate adjustments shall be made with respect to
such increased monthly installments of rent paid by Tenant
based upon Landlord's estimate.
(D) Provided that Tenant is not in default in the payment of
any monthly installments of rent and the payment of any other amounts
due under this lease, Tenant shall have the right, at its sole cost and
expense, to inspect the books of account covering Operating Costs for
any calendar year within four (4) months after Tenant is furnished with
the statement described in subparagraph 2(C)(1). If Tenant does not
exercise its right to audit the books and accounts within such four (4)
month period, Tenant shall have waived its right to dispute the
determination or calculation set forth in the statement. If it is
determined, by certification of an independent certified public
accountant, that the amount previously determined by Landlord was
incorrect, a correction shall be made and either Landlord shall
promptly return to Tenant any overpayment or Tenant shall promptly pay
to Landlord any underpayment. Notwithstanding the pendency of any
dispute hereunder, Tenant shall make payments based upon Landlord's
statement until such statement has been established to be correct.
3. OCCUPANCY
Tenant shall use and occupy the demised premises for the purpose set
forth in Article K of Section I and for no other purpose.
4. ASSIGNMENT, MORTGAGE, SUBLETTING
Neither Tenant nor its legal representatives, successors or assigns
shall voluntarily or involuntarily assign, mortgage or encumber this lease, or
sublet or use or occupy or permit the demised premises or any part thereof to be
used or occupied by others without the written
-8-
consent of Landlord in each instance. Any assignment, encumbrance, or sublease
without Landlord's consent shall be voidable and, at Landlord's option, shall
constitute a default. A transfer of control of Tenant shall be deemed an
assignment under this lease and shall be subject to all the provisions of this
Article. Notwithstanding any provision contained in this Article 4 to the
contrary, none of the following, or any changes, assignments or transfers
resulting from the following shall require Landlord's prior written consent:
(A) a transfer of or change in the ownership interest of
Tenant as long as the new ownership interest continues to operate the
business of the Tenant in the same manner and has a financial net worth
equal to or greater than the transferring owner;
(B) a transfer of stock pursuant to a public offering of the
capital stock of Tenant;
(C) the merger, consolidation or amalgamation of Tenant with a
third party for the sale of all, or substantially all, of the stock or
assets of Tenant as long as the surviving entity continues to operate
the business of the Tenant in the same manner and either (i) has a net
worth equal to or greater than the Tenant or (ii) can reasonably
demonstrate that it has the financial capacity to perform the Tenant's
obligations under this Lease; or
(D) a transfer to (i) Tenant's management group in accordance
with or similar to the proposals described in memorandum the
("Memorandum") dated November 1, 1994 prepared by Resource Capital
Associates, Inc. with ▇.▇. ▇▇▇▇▇▇ & Associates, (ii) a parent, (iii)
subsidiary or (iv) affiliate (as hereinafter defined) of Tenant.
For purposes of this Article 4, an "affiliate of Tenant" shall mean any trust,
corporation, limited liability company or partnership; (i) which owns or
"controls" the majority of the ownership interest of Tenant, either directly or
indirectly through other entities, (ii) a majority of whose ownership interest
is owned or controlled by Tenant, (iii) the majority of whose ownership interest
is owned or controlled by an entity described in clause (i) above, or (iv) which
owns or controls a majority of the ownership interest of Tenant. As used in this
Article 4, the phrase "ownership interest" shall mean general partnership
interest if Tenant is a partnership, membership interest if Tenant is a limited
liability company and capital stock if Tenant is a corporation, and the word
"control" shall mean the right or power to direct or cause the direction of the
management policies of the entity in question.
Tenant will notify Landlord in writing of any interest in this lease
which Tenant wishes to assign or any portion of the demised premises which
Tenant wishes to sublet or permit others to occupy. Such notice shall specify
the terms and conditions of such transaction and shall be accompanied by any
information Landlord may require with respect to the proposed assignee,
sublessee or occupant. Upon receipt of such notice and information, Landlord
shall have the
-9-
right to either consent to such assignment, subletting, or occupancy, or refuse
to consent to such subletting or occupancy, provided that said consent shall not
be unreasonably withheld.
Without limitation of the circumstances in which Landlord's withholding
of consent to an assignment or subletting shall not be unreasonable, it shall
not be unreasonable for Landlord to withhold its consent if the reputation,
financial responsibility, or business of the proposed assignee or subtenant is
unsatisfactory to Landlord, or if the intended use by the proposed assignee or
subtenant conflicts with any commitment made by Landlord to any other tenant in
the Building, or if in Landlord's reasonable judgment the assignment or
subletting will have financial consequences adverse to Landlord's interest, or
if the proposed assignee or subtenant shall be (i) of a character or reputation
or engaged in a business which is not consistent with the quality of the
Building, (ii) a government or any subdivision or agency thereof, (iii) former
tenant of the Building or any affiliate or guarantor thereof who defaulted under
any of its lease obligations to Landlord or any affiliate of Landlord, or (v) an
existing tenant of the Building. In the event Landlord consents to such
assignment, subletting or occupancy all rent or other' consideration paid by the
assignee, sublessee or occupant to Tenant in excess of the Base Annual Rental
and additional rent due to Landlord under this lease shall be divided equally
between Landlord and Tenant. If Tenant requests Landlord to consent to a
proposed assignment or subletting, Tenant shall pay to Landlord the reasonable
attorneys' fees incurred in connection with each such request. Landlord agrees
to provide Tenant with an estimate of the attorney's fees the Landlord expects
to incur in connection with any proposed assignment or subletting by Tenant
("Attorney's Fee Estimate"). Tenant shall have the right to withdraw its request
of a proposed assignment or subletting provided such withdrawal is requested in
writing and delivered to Landlord within three (3) days after Tenant's receipt
of the Attorney's Fee Estimate. In the event Landlord incurs attorney's fees in
excess of the Attorney's Fee Estimate in connection with a requested assignment
or subletting, Tenant shall only be responsible for the payment of that portion
of Landlord's attorney's fees which are equal to the sum of the Attorney's Fee
Estimate plus one-half (1/2) of the amount of such attorney's fees in excess of
the Attorney's Fee Estimate incurred by Landlord not to exceed, however, in any
event one hundred ten percent (110%) of the Attorney's Fee Estimate.
5. ALTERATIONS
Subject to the last paragraph of this Article 5, Tenant shall make no
alterations, additions or improvements in or to the demised premises without
first obtaining the written consent of Landlord. Tenant understands that
Landlord's consent will be conditioned on Tenant's compliance with Landlord's
requirements in effect at the time permission is requested, which requirements
will include, without limitation, Landlord's approval of plans, specifications,
contractors, insurance, and hours of construction. Tenant will be required to
pay as additional rent to Landlord a reasonable fee for supervising Tenant's
contractor and for Landlord's related costs, such as, but not limited to, trash
removal and utilities. Prior to the commencement of any work in or to the
demised premises by Tenant's contractors, Tenant shall deliver to Landlord
-10-
certificates issued by applicable insurance companies evidencing that workmen's
compensation and public liability insurance and property damage insurance, all
in amounts and with companies, and on forms satisfactory to Landlord, are in
force and effect and maintained by all contractors and subcontractors engaged by
Tenant to perform such work. Each such certificate shall provide that it may not
be cancelled without ten (10) days, prior written notice to Landlord. Upon
completion of such work, Tenant shall provide Landlord with as-built plans and
specifications and with lien releases from every person who supplied labor or
materials for the work. All work done by Tenant shall be performed in full
compliance with all laws, rules, orders, ordinances, directions, regulations and
requirements of all governmental agencies, offices, departments, bureaus and
boards having jurisdiction over the Building.
Before commencing any work with an aggregate cost of Ten Thousand and
No/100 Dollars ($10,000.00) or less, Tenant shall give Landlord at least
forty-eight (48) hours prior verbal notice of the commencement of such work.
Before commencing any work with an aggregate cost in excess of Ten Thousand and
No/100 Dollars ($10,000.00), Tenant shall give Landlord at least five (5) days'
written notice of the commencement of such work; and shall, during the course of
such work, post and keep posted in conspicuous places on the demised premises
such notice as Landlord requires to protect Landlord from having its interest in
the demised premises made subject to a mechanic's lien. Tenant shall secure, at
Tenant's own cost and expense, a completion and lien indemnity bond satisfactory
to Landlord for said work. Any mechanic's lien filed against the demised
premises or against the Building or the land upon which the Building is located
or any of the areas used in connection with the operation of the Building for
work claimed to have been done for, or materials claimed to have been furnished
to Tenant, shall be discharged by Tenant, by bond or otherwise, within ten (10)
days after the filing thereof, at the cost and expense of Tenant.
All alterations, additions or improvements upon the demised premises
made by either Landlord or Tenant including, without limiting the generality of
the foregoing, all paneling, partitions, railings, and the like, unless Landlord
elects otherwise (which election shall be made by giving a notice pursuant to
the provisions of Article 23 below not less than three (3) days prior to the
expiration or other termination of this lease or any renewal or extension
thereof) shall become the property of Landlord, and shall remain upon and be
surrendered with the demised premises at the end of the term of this lease. If
Tenant removes any property from the demised premises, Tenant shall repair or,
at Landlord's option, shall pay to Landlord the cost of repairing any damage
arising from such removal.
Landlord and Tenant agree that alterations, additions and improvements
shall not require the prior written consent of Landlord if the same (i) are not
structural in nature and if they do not affect the structural integrity or
external appearance of the Building; (ii) do not adversely affect the basic
Building systems; (iii) do not affect electrical, life safety, HVAC, mechanical
or plumbing systems or fixtures; (iv) are not visible from any elevator lobby or
public area; and (v) do not include any restrooms. Notwithstanding the
foregoing, Tenant agrees to deliver written
-11-
notice to Landlord advising of any alteration, addition and/or improvement which
do not require Landlord's consent at least three (3) business days prior to
commencement of any work upon the demised premises, and Tenant agrees to comply
with all other requirements of this Article 5 with respect to such alterations,
additions and/or improvements.
6. REPAIRS
Tenant has had sufficient time to examine the Building and the demised
premises, and Tenant accepts the demised premises "as is." Landlord makes no
representation regarding the condition of the Building or the demised premises.
Tenant shall take good care of the demised premises and fixtures therein and,
subject to the provisions of Article 5 above, shall, in a timely fashion, make
all repairs in and about demised premises necessary to preserve them in good
order and condition, except for ordinary wear and tear, which repairs shall be
in quality and class equal to the condition of the demised premises at the
Commencement Date. Tenant shall make, at its sole cost and expense, repairs to
any special equipment or systems installed by Tenant or by Landlord on Tenant's
behalf. All repairs required under this section shall be made only by
contractors and mechanics reasonably approved by Landlord. Landlord, however,
shall repair the Building plumbing, heating, ventilating or air conditioning and
electrical systems and make structural repairs within the demised premises
arising from ordinary wear and tear or through causes over which Tenant has no
control, except as otherwise provided in this lease. Landlord may repair at the
expense of Tenant all damage or injury to the demised premises, or to the
Building or to its fixtures, appurtenances or equipment or to any of the area
used in connection with the operation of the Building, done by Tenant or Tenant
's agents, servants, employees, contractors, visitors or licensees and due to
the carelessness, negligence, or improper conduct of Tenant, Tenant's agents,
servants, employees, contractors, visitors or licensees. Landlord shall have the
right to replace, at the expense of Tenant, any and all plate and other glass
damaged or broken from any cause whatsoever in or about the demised premises
unless caused by or due solely to the negligence of Landlord, Landlord's agents,
servants or employees. Except as provided in Article 11 below, there shall be
no allowance to Tenant for a diminution of rental value, and no liability on the
part of Landlord by reason of inconvenience, annoyance or injury to business
arising from the making of, or the failure to make, any repairs, alterations,
additions or improvements in or to any portion of the Building or any of the
areas used in connection with the operation of the Building, or the demised
premises, or in or to fixtures, appurtenances or equipment, or by reason of the
act or neglect of Tenant or any other tenant or occupant of the Building. In no
event shall Landlord be responsible for any consequential damages arising or
alleged to have arisen from any such event.
7. REQUIREMENTS OF LAW AND INSURANCE
Tenant shall comply with all laws, rules, orders, ordinances,
directions, regulations and requirements of federal, state, county and municipal
authorities pertaining to Tenant's use of the demised premises. Tenant shall not
do or permit to be done any act or thing upon the demised
-12-
premises which will invalidate or be in conflict with any insurance policy
covering the Building or any of the areas used in connection with the Building.
Tenant shall not do or permit to be done any act or thing upon the demised
premises which shall or might subject Landlord to any liability or
responsibility for injury to any person or persons or to any property by reason
of any business or operation being carried on upon the demised premises or for
any other reason, and Tenant hereby indemnities Landlord against any such
liability or responsibility. Tenant shall not place a load upon any floor of the
demised premises exceeding the floor load per square foot area which such floor
was designed to carry and which is allowed by law. Business machines and
mechanical equipment shall be placed and maintained by Tenant at Tenant's
expense in settings sufficient in Landlord's judgment to absorb and prevent
vibration, noise and annoyance.
Insurance
Landlord shall maintain public liability insurance, hazard insurance on
the Building and such other insurance coverage as it reasonably deems necessary.
The cost of the insurance shall be included in Operating Costs. Landlord shall
not be responsible for insurance covering any installations or other
improvements made by Tenant to the demised premises or for any personal property
of Tenant located in or about or used in connection with the demised premises,
the Building, or the areas surrounding or used in connection with the Building.
Tenant shall not do, or permit anything to be done, in or upon the demised
premises, or bring or keep anything therein which shall increase the rates of
any insurance on the Building or any of the areas used in connection with the
operation thereof or its fixtures, appurtenances or equipment or on property
located in the Building. If by reason of failure of Tenant to comply with the
provisions of this Article any insurance rate shall increase, then Tenant shall
upon demand reimburse Landlord for the increase.
At all times during the term of this lease, Tenant shall carry and
maintain, at Tenant's expense, the following insurance in the amounts specified
below or such other amounts as Landlord shall from time to time reasonably
request, with insurance companies and on forms satisfactory to Landlord:
(A) Public liability, bodily injury and property damage
liability insurance, with a combined single occurrence limit of not
less than $2,000,000.00. All such insurance will be equivalent to
coverage offered by a Commercial General Liability form including,
without limitation, personal injury, death of persons or damage to
property occurring in, on, or about the demised premises and
contractual liability coverage for the performance by Tenant of the
indemnity agreements set forth in this lease.
(B) Insurance covering all of Tenant's furniture and fixtures,
machinery, equipment, stock, and any other personal property owned and
used in Tenant's business and found in, on, or about the Building, and
any leasehold improvements to the demised premises, in an amount not
less than the full replacement costs. Property forms will
-13-
provide coverage on a broad form basis insuring against "all risks of
direct physical loss." All policy proceeds will be used for the repair
or replacement of such leasehold improvements damaged or destroyed; and
Tenant will be entitled to the remainder; however, if this lease ceases
under the provisions of Article 11, Tenant will in any event be
entitled to any proceeds resulting from damage to Tenant's furniture
and fixtures, machinery and equipment, stock, and any other personal
property.
(C) Workmen's compensation insurance satisfying Tenant's
obligations and liabilities under the workmen's compensation laws of
Colorado.
(D) Any additional insurance reasonably requested by Landlord
to cover any unusual risk created by the nature of Tenant's use of the
demised premises.
All policies of public liability and property damage liability
insurance which Tenant is obligated to maintain according to this lease shall
name Landlord as an additional insured. Tenant shall deliver to Landlord a copy
of all such policies or certificates of insurance (including in any case
documentation naming Landlord as an additional insured) and evidence of payment
of all premiums for any such policies prior to Tenant's occupancy of the demised
premises and from time to time during the lease term, at least thirty (30) days
prior to the expiration of the term of each such policy. All policies of public
liability and property damage liability insurance maintained by Tenant shall
also contain a provision that Landlord, although named as an insured, shall
nevertheless be entitled to recover under such policies for any loss sustained
by Landlord, its agents and employees as a result of the acts or omissions of
Tenant. Such public liability and property damage liability policies shall be
written as primary policies, not contributing with and not in excess of coverage
that Landlord may carry. All policies required to be maintained by Tenant shall
provide that they may not be terminated or amended except after thirty (30)
days' prior notice to Landlord.
Landlord and Tenant each waive any and all rights to recover against
the other for any loss or damage to such waiving party arising from any cause
covered by any insurance required to be carried by such party pursuant to this
Article or any other insurance actually carried by such party. Such waiver of
subrogation shall be effective with respect to loss or damage occurring only
during such time as Landlord's and Tenant's policies shall be in force and
effect with respect to such loss or damage and shall contain a clause or
endorsement to the effect that any such release shall not adversely affect or
impair such policies or prejudice the right of the releasing party to recover
under such policies.
-14-
8. SUBORDINATION
It is agreed that this lease may, at the option of Landlord, be made
subordinate to any ground or underlying leases, mortgages, or deeds of trust
which may hereafter affect the real property. This clause shall be
self-operative and no further instrument of subordination shall be required in
order for the same to be effective. However, Tenant will promptly execute and
deliver upon the demand of Landlord any and all instruments desired by Landlord
evidencing this subordination to such lease, mortgage or deed of trust.
In the event of foreclosure or exercise of power of sale under any
mortgage or deed of trust hereafter affecting the real property, the holder of
any such mortgage or deed of trust (or purchaser at any sale pursuant thereto)
shall have the option of (a) supplementing this Article, to require Tenant to
attorn to such holder or purchaser, and to enter into a new lease with such
holder or purchaser (as landlord) for the balance of the term then remaining
under this lease upon the same terms and conditions as those provided in this
lease, or (b) notwithstanding this Article, to elect that this lease become or
remain, as the case may be, superior to said mortgage or deed of trust.
9. RULES AND REGULATIONS
Tenant and Tenant's agents, servants, employees, contractors, visitors
and licensees shall observe faithfully and comply strictly with the Rules and
Regulations attached and made a part of this lease, and such other and further
reasonable Rules and Regulations as Landlord or Landlord's agents may from time
to time adopt. Notice of any additional Rules or Regulations shall be given in
accordance with the provisions of Article 23 below. Landlord agrees to use
reasonable efforts to enforce the Rules and Regulations among all tenants of the
Building in a nondiscriminatory manner. Landlord shall not be liable to Tenant
for violation of any of said Rules and Regulations, or the breach of any term or
covenant in any lease, by any other tenant or other party in the Building.
10. LIABILITY
Neither Landlord nor Landlord's agents shall be liable for any property
entrusted to them, their employees or the Building personnel, or for the loss of
such property by theft or otherwise. Neither Landlord nor Landlord's agents
shall be liable for any injury to or death of persons or for loss of or damage
to property resulting from 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 of the same or from the street or sub-surface or from any
other place or resulting from dampness or any other cause of any nature, and
Tenant hereby indemnifies Landlord against any and all claims, losses, damages,
costs, and expenses (including, but not limited to, attorneys' fees and
expenses) arising out of the foregoing, except to the extent caused by the
negligence of Landlord, Landlord's agents, servants or employees. Neither
Landlord nor Landlord's agents shall be liable
-15-
for any such damage caused by other tenants or parties in the Building or any of
the areas used in connection with the operation of the Building, or for
interference with the light or other incorporeal hereditaments, or caused by
construction of any private, public or quasi-public work; nor shall Landlord be
liable for any latent defect in the Building. If known to Tenant, Tenant shall
give immediate notice to Landlord in case of fire or accident to or defect in
the Building or any of its fixtures, appurtenances or equipment.
11. DAMAGE OR DESTRUCTION
If the demised premises shall be partially damaged by fire or other
cause without the fault or neglect of Tenant, Tenant's agents, servants,
employees, contractors, visitors or licensees, the damages shall be repaired by
and at the expense of Landlord, and the rent until such repairs shall be made
shall be apportioned according to the part of the demised premises which is
tenantable or used by Tenant. If such partial damage is due to the fault or
neglect of Tenant or Tenant's agents, servants, employees, contractors, visitors
or licensees, there shall be no apportionment or abatement of rent, and Tenant
shall, at its sole cost, promptly restore the demised premises to their original
condition. No liability shall accrue for reasonable delay which may arise by
reason of adjustment of insurance on the part of Landlord, for reasonable delay
on account of "labor troubles," or any other cause beyond Landlord's control. If
more than twenty-five percent (25%) of the rentable area of the demised premises
is damaged to the extent that Tenant cannot occupy such portion of the rentable
area of the demised premises or such rentable area is rendered wholly
untenantable in Landlord's reasonable judgment by fire or other cause, or if the
Building shall be so damaged that Landlord shall decide to demolish it or to
rebuild it, then in any of such events either party may elect to cancel this
lease by providing written notice thereof to the other party within ninety (90)
days after the occurrence of such fire or other cause, and thereupon the term of
this lease shall expire by lapse of time upon the third day after such notice is
given, and Tenant shall vacate the demised premises and surrender the same to
Landlord. However, if such damage is without the fault or neglect of Tenant,
Tenant's agents, servants, employees, contractors, visitors or licensees and if
the lease is not cancelled pursuant to the terms hereof then rent under this
lease shall be apportioned according to the part of the demised premises which
is tenantable or used by Tenant until the restoration is complete.
12. EMINENT DOMAIN
If the whole or any part of the demised premises shall be taken or
condemned for all or any portion of the term of this lease by any competent
authority for any public or quasi-public use or purpose, or transferred by
agreement in connection with such public or quasi-public use or purpose with or
without any condemnation action or proceeding being instituted (collectively,
"Condemnation Action"), then the term of this lease shall, at the option of
Landlord, terminate as of the date when possession is taken by the condemning
authority. If Landlord chooses not to terminate this lease, this lease shall
remain in full force and effect, but the Base Annual Rent shall be
proportionately reduced to the extent the demised premises are taken pursuant to
the
-16-
condemnation. In the event more than twenty-five percent (25%) of the rentable
area of the demised premises shall be taken or condemned for all or any portion
of the term of this lease as a result of a Condemnation Action, then the term of
this lease shall, at the option of Tenant, terminate as of the date that Tenant
completely vacates the demised premises, provided Tenant delivers written notice
("Tenant's Termination Notice") of its election to terminate within sixty (60)
days after such taking, time being of the essence. Tenant further agrees that in
the event it elects to terminate the term of the lease as provided in this
Article 12 it shall completely vacate the demised premises within sixty (60)
days after the delivery of Tenant's Termination Notice.
Upon such taking or purchase, Landlord shall be entitled to receive and
retain the entire award or consideration for the affected lands and
improvements, and Tenant shall not have nor advance any claim against Landlord
for the value of its property or its leasehold estate or the unexpired term of
this lease, or for cost of removal or relocation, or business interruption
expense or any other damages arising out of such taking or purchase.
13. SERVICES
Landlord shall:
(A) provide automatic elevator facilities at all times;
(B) on Monday through Friday from 8 a.m. to 6 p.m., and on
Saturday from 8 a.m. to 12 noon (and at other times for a reasonable
additional charge to be fixed by Landlord) ventilate the demised
premises and furnish the heating or air conditioning when it may be
required for the comfortable occupancy of the demised premises. Tenant
agrees to keep and cause to be kept closed all doors from the demised
premises and the windows in the demised premises, and Tenant agrees to
cooperate fully at all times with Landlord and to abide by all
regulations and requirements which Landlord may prescribe for the
proper functioning and protection of the heating, ventilating and air
conditioning system. Tenant shall not install or use in the demised
premises any equipment which would generate heat so as to adversely
affect the heating, ventilating and air conditioning system. Throughout
the term of this lease, Landlord shall have free access to any and all
mechanical installations of Tenant, including, but not limited to, air
conditioning, fan, ventilating and machine rooms, telephone rooms and
electrical closets. Tenant agrees that there shall be no construction
of partitions or other obstructions which might interfere with
Landlord' s free access to such areas, or interfere with the moving of
Landlord's equipment to or from the enclosures containing said
installations;
(C) provide electricity for normal and usual lighting and
office business machines only. Tenant agrees not to use any apparatus
or device in the demised premises which may in any way increase the
amount of such electricity usually furnished or supplied to the demised
premises, and Tenant further agrees not to connect any apparatus
-17-
or device to the wires, conduits or pipes, or other means by which such
electricity is supplied for the purpose of using additional or unusual
amount of electricity without the consent of Landlord. If Tenant uses
the same to excess or follows a regular practice of using electricity
beyond the normal business hours as set in paragraph (B) immediately
above, Landlord shall have the right to estimate from time to time
(prospectively) the amount that Tenant should pay on account of such
use, and Tenant, after notice by Landlord of such estimate or revised
estimate, agrees to pay such amount on the first day of each calendar
month thereafter or, if such estimate be made during the last month of
the term or after its expiration, promptly upon demand by Landlord.
Further, if Tenant uses unusual amounts of electricity, in the sole
discretion of Landlord, Landlord may install a meter and thereby
measure Tenant's electricity consumption for all purposes. Landlord
shall be responsible for the cost of the meter and the cost of its
installation, and throughout the duration of Tenant's occupancy Tenant
shall keep the meter in good working order and repair at Tenant's own
cost and expense. Tenant agrees to pay for electricity consumed, as
shown on the meter, concurrently with the next monthly installment of
rent due after receipt of a Statement or invoice from Landlord. At all
times Tenant's use of electric current shall never exceed the capacity
of the feeders to the Building or the risers or wiring installation;
(D) furnish water for drinking, shower, kitchen and lavatory
purposes only, but if Tenant requires, uses or consumes water for any
purpose in addition to ordinary drinking and lavatory purposes, then in
Landlord's sole discretion, Landlord may install a water meter and
thereby measure Tenant's water consumption for all purposes. Landlord
shall be responsible for the cost of the meter and the cost of the
installation thereof, and throughout the duration of Tenant's occupancy
Tenant shall keep the meter and installation equipment in good working
order and repair at Tenant's own cost and expense. Tenant agrees to pay
for water consumed, as shown on the meter, within five (5) days after
receipt of a statement or invoice from Landlord; and
(E) cause the demised premises to be kept clean, provided the
same are used exclusively as ordinary desk-type offices, and are kept
reasonably in order by Tenant. If Tenant chooses to provide its own
janitorial service, such services shall be provided only by a
contractor approved in writing in advance by Landlord. Tenant shall pay
to Landlord the cost of removal of any of Tenant's refuse and rubbish
to the extent that the same exceeds the refuse and rubbish usually
attendant upon the use of the demised premises exclusively as ordinary
desk-type offices.
Tenant shall at all times maintain at its own cost and expense all
plumbing facilities and related equipment within the demised premises in good
order, condition and repair. Tenant hereby indemnifies Landlord against any and
all claims, liabilities, losses, damages, costs and expenses whatsoever
(including, but not limited to, attorneys' fees and expenses) whether suffered
by Landlord or other occupants or persons in the Building or any of the areas
used in
-18-
connection with the operation thereof arising out of the foregoing, unless
caused by or due solely to the negligence of Landlord, Landlord's agents,
servants or employees.
Landlord reserves the right to stop service of the elevator, plumbing,
heating, ventilating, air conditioning and electric or other mechanical systems,
or cleaning services, when necessary, by reason of accident or emergency or of
inspection, repairs, alterations, additions or improvements which in the
judgment of Landlord are desirable or necessary to be made, until same shall
have been completed. Landlord agrees to use reasonable efforts to minimize
interference with Tenant's access to and use of the demised premises in the
event of the occurrence of any of the foregoing. Landlord shall have no
responsibility or liability for failure to supply any of such services in such
instance.
Tenant shall take good care of any and all floor and window coverings
installed in the demised premises, and Tenant shall make, as and when needed,
all repairs in and to the coverings and shampoo and/or clean any of the
coverings as necessary to preserve them in good order, condition and appearance;
provided, however, that Landlord agrees, as part of the janitorial services
provided, to shampoo the carpeted traffic areas of the demised premises once
each calendar year during the term of this lease.
Tenant agrees that Landlord shall not be liable for failure to supply
any of the services described in this Article 13 during any period when Landlord
uses reasonable diligence to supply such services. It is understood that
Landlord reserves the right to temporarily discontinue such services, or any of
them, at such time as may be necessary by reason of accident, unavailability of
employees, repairs, alterations or improvements or whenever by reason of
strikes, lockouts, riots, acts of God or any other happening beyond the control
of Landlord. Landlord shall not be liable for damages to persons or property for
any such discontinuance, nor shall such discontinuance in any way be construed
as eviction of or cause an abatement of rent or operate to release Tenant from
any of the Tenant's obligations hereunder. Notwithstanding the foregoing
provisions of this Article 13, Base Annual Rent shall be abated as provided
below in case Landlord fails to provide (other than by reason of Tenant's
default) a service which Landlord has agreed to provide under paragraphs (B),
(C) and (D) of this Article if: (i) the prevention of the interruption of the
service is within the reasonable control of Landlord (ii) if such interruption
continues for five (5) consecutive calendar days and (iii) as a result of such
interruption Tenant is not able to use the demised premises (or the affected
portion thereof) for the operation of Tenant's business. In the event of the
occurrences of the foregoing, the Base Rent for the demised premises (or, if
only a portion of the demised premises is affected, prorated for such portion)
shall be abated commencing on the sixth (6th) consecutive calendar day of such
disruption until the service in question has been restored. In the event such
failure renders more than fifty percent (50%) of the rentable area of the
demised premises unusable for the operation of Tenant's business for over sixty
(60) consecutive days, Tenant shall have the right to terminate this lease upon
delivery of written notice to Landlord, provided that Tenant completely vacates
the demised premises in compliance with the provisions of Article 19 hereof
within sixty (60) days after delivery of such
-19-
notice. Landlord's obligation to furnish services shall be conditioned upon the
availability of adequate energy sources from the public utility companies then
servicing the Boulder, Colorado area.
14. ACCESS TO PREMISES
Tenant shall permit Landlord to use and maintain pipes and conduits in
and through the demised premises. Landlord and Landlord's agents shall have the
right to enter the demised premises at all times, to examine the same and to
make such repairs, alterations, additions and improvements as Landlord may deem
necessary or desirable, and Landlord shall be allowed to take all material into
and upon the demised premises that may be required therefor without the same
constituting an eviction of Tenant in whole or in part, and, subject to the
provisions of Article 11 above, the rent reserved shall in no way ▇▇▇▇▇ while
such repairs, alterations, additions or improvements are being made, by reason
of inconvenience, annoyance or injury to the business of Tenant because of the
prosecution of any such work. Landlord agrees to use reasonable efforts to
minimize the interference with Tenant's use of the demised premises as resulting
from the completion of such repairs, alterations, additions or improvements.
Landlord and Landlord's agents are expressly granted permission to inspect the
demised premises at any reasonable time and to show the demised premises at any
reasonable time to prospective tenants, mortgagees, purchasers, lessees of the
Building and other persons with a business interest therein. If Tenant shall not
be personally present to open and permit an entry into the demised premises at
any time when for any reason an entry shall be necessary or permissible under
this lease, Landlord or Landlord's agents may (after attempting to provide
reasonable verbal notice to Tenant except in an emergency situation in which
event Landlord shall not be required to attempt to provide such notice) enter
the same by a master key, or in the event of emergency may forcibly enter the
demised premises without rendering Landlord or such agents liable therefor (if
during such entry Landlord or Landlord's agents shall accord reasonable care to
Tenant's property), and without in any manner affecting the obligations, terms,
covenants, conditions, provisions or agreements of this lease. Landlord shall
have the right to change the name, number and designation by which the Building
is commonly known; provided, however, that Landlord shall not be permitted to
change Tenant's Sign (as hereinafter defined). Nothing herein contained,
however, shall be deemed or construed to impose upon Landlord any obligation,
responsibility or liability whatsoever for the care, supervision or repair of
the Building or any part thereof, other than as otherwise provided in this
lease.
15. BANKRUPTCY
(A) During Term. If on or prior to the Commencement Date or at
any time during the term there shall be filed by Tenant in any court
pursuant to any statute either of the United States or of any State a
petition in bankruptcy or insolvency or for reorganization or for the
appointment of a receiver or trustee or conservator of all or a portion
of Tenant's property, or if there shall be filed against Tenant in any
court pursuant
-20-
to any statute either of the United States or of any State an
involuntary petition in bankruptcy or insolvency or for reorganization
or for the appointment of a receiver or trustee or conservator of all
or a portion of Tenant's property which is not dismissed within sixty
(60) days of filing, or if Tenant makes an assignment for the benefit
of creditors, this lease, at the option of Landlord exercised within a
reasonable time after notice of the happening of any one or more of
such events, may be cancelled and terminated. In such event neither
Tenant nor any person claiming through or under Tenant or by virtue of
any statute or of an order of any court shall be entitled to possession
or to remain in possession of the demised premises, but shall forthwith
quit and surrender the demised premises. Landlord, in addition to the
other rights and remedies granted by paragraph (B) of this Article or
by virtue of any other provision in this lease contained or by virtue
of any statute or rule of law, may retain as damages any rent,
security, deposit or moneys received by it from Tenant or others on
behalf of Tenant.
(B) Measure of Damages. In the event of the termination of
this lease pursuant to paragraph (A) of this Article, Landlord shall be
entitled to the same rights and remedies as those set forth in
paragraphs (E) and (F) of Article 16 and in Article 18 of this lease.
(C) In the event of the occurrence of any of the events
specified in this Article, if Landlord shall not choose to exercise, or
by law shall not be able to exercise, its rights hereunder to terminate
this lease, then, in addition to any other rights of Landlord hereunder
or by law, (i) Landlord shall not be obligated to provide Tenant with
any of the services specified in Article 13 above, unless Landlord has
received compensation in advance for such services, and the parties
agree that Landlord's estimate of the compensation required with
respect to such services shall control, and (ii) neither Tenant, as
debtor-in-possession, nor any trustee or other person (hereinafter
collectively called the "Assuming Tenant") shall be entitled to assume
this lease unless, on or before the date of such assumption, the
Assuming Tenant (x) cures, or provides adequate assurance that the
latter will promptly cure, any existing default under this lease, (y)
compensates, or provides adequate assurance that the Assuming Tenant
will promptly compensate, Landlord for any pecuniary loss (including,
without limitation, reasonable attorneys' fees and disbursements)
resulting from such default, and (z) provides adequate assurance of
future performance under this lease. It is agreed by the parties that
any cure or compensation shall be effected by the immediate payment of
any monetary default, the immediate correction or bonding of any
nonmonetary default, and "adequate assurance" of future performance
shall be effected by the establishment of an escrow fund for the amount
at issue or by bonding. It is acknowledged and agreed by Tenant that
the foregoing provision was a material part of the consideration for
this lease.
-21-
16. EVENTS OF DEFAULT AND REMEDIES
(A) It shall, at Landlord's option, be deemed a breach of this
lease if:
(1) Tenant shall fail to pay when due any installment
of Base Annual Rent or any other sum payable by Tenant
pursuant to this lease and the continuation of such failure
without cure for at least five (5) days after Landlord has
given written notice to Tenant stating and identifying the
amount improperly unpaid (provided, however, that as to the
failure to pay Base Annual Rent on a timely basis, Landlord
shall not be required to give Tenant more than two (2) such
written notices of default in any period of twenty-four (24)
consecutive months, so that the third (3rd) or any subsequent
failure to timely pay any installment of Base Annual Rent in
any such twenty-four (24) month period shall constitute an
immediate breach of this lease without the need for any
written notice of that failure;
(2) Tenant shall fail to perform or observe any other
term, covenant, condition, provision or agreement of this
lease and Tenant shall fail to remedy said default within ten
(10) days after written notice specifying said default is
given by Landlord to Tenant (or within such period as may be
reasonably required to cure such default if it is of such a
nature that it cannot be cured within such 10- day period,
provided that Tenant commences to remedy such default within
that 10-day period and proceeds with reasonable diligence
thereafter to cure such default, provided, however, in any
event such default must be cured within ninety (90) days);
(3) In excess of fifty percent (50%) of the rentable
area of the demised premises become vacant or deserted;
(4) Any execution or attachment shall be issued
against Tenant or any of Tenant's property located on the
demised premises and such execution or attachment is not
discharged or released within thirty (30) days;
(5) The demised premises shall be taken or occupied
or attempted to be taken or occupied by someone other than
Tenant without compliance with the provisions of Article 4
above;
(6) Tenant assigns or otherwise transfers
substantially all of the assets used in connection with the
business conducted in the demised premises without compliance
with the provisions of Article 4 above;
-22-
(7) Tenant or any duly authorized agent or officer of
Tenant makes any written statement regarding its financial
condition so as to materially mislead Landlord with regard to
Tenant's financial standing and ability to perform its
covenants and obligations under this lease.
(B) In the event that Landlord elects, pursuant to subsection
(A) of this Article, to declare a breach of this lease, then Landlord
shall have the right to give Tenant three (3) days, notice of intention
to end the term, and thereupon, at the expiration of said three (3)
days the term shall expire as fully and completely as if that day were
the day herein definitely fixed for the expiration of the term. Tenant
shall then quit and surrender the demised premises to Landlord, but
Tenant shall remain liable as hereinafter provided. If Tenant fails to
quit and surrender the demised premises, Landlord shall have the right,
without notice, to re-enter the demised premises either by force or
otherwise and dispossess Tenant and the legal representatives of Tenant
and all other occupants of the demised premises by unlawful detainer or
other summary proceedings, or otherwise, and remove their effects and
regain possession of the demised premises (but Landlord shall not be
obligated to effect such removal).
(C) In the event of any breach of this lease by Tenant (and
regardless of whether Tenant has abandoned the demised premises), this
lease shall not terminate unless Landlord, at Landlord's option, gives
written notice terminating this lease. For as long as this lease
continues in effect, Landlord may enforce all of Landlord's rights and
remedies under this lease, including the right to recover all rent as
it becomes due hereunder. For the purposes of this paragraph (C), the
following shall not constitute termination of this lease: (1) acts of
maintenance or preservation or efforts to relet the demised premises,
or (2) the appointment of a receiver upon initiative of Landlord to
protect Landlord's interest under this lease, or (3) service of a
statutory notice by Landlord upon Tenant requiring payment of rent or
possession of the demised premises.
(D) In the event Tenant abandons the demised premises,
Landlord may, but shall be under no obligation to, at any time and from
time to time, re-enter and relet the demised premises in whole or in
part without terminating this lease. Such reletting may be either in
its own name or as agent of Tenant, for a term or terms which, at the
option of Landlord, may be for the remainder of the term of this lease,
or for any longer or shorter period, and at its option Landlord may
make such alterations, repairs, and/or decorations in the demised
premises as in its reasonable judgment it considers advisable and
necessary in connection with such reletting, and the making of such
alterations, repairs, and/or decorations shall not operate or be
construed to release Tenant from liability under this lease. Landlord
shall in no event be liable in any way whatsoever for failure to
collect rent under such reletting, and in no event shall Tenant be
entitled to receive any excess of rent under such reletting over the
sums payable by Tenant to Landlord under this lease. In the event of
abandonment and if Landlord elects not to terminate this lease,
-23-
Tenant shall be liable to Landlord for rent (payable as set forth in
this lease and continuing thereafter until the date originally fixed
for the expiration of the term) in an amount or amounts equal to the
excess, if any, of the amount of aggregate expenses paid or incurred by
Landlord during the immediately preceding month (1) for all such items
as, by the terms of this lease, are required to be paid by Tenant and
(2) for reasonable legal expenses, reasonable attorneys' fees, court
costs, expenses of reletting (including without limitation alterations
and repairs as may be made), and all costs (including without
limitation attorneys' and receivers' fees) incurred in connection with
the appointment of and performance by any receiver, plus an amount
equal to the amount of the installment of rent which would have been
payable by Tenant hereunder in respect of such month period had Tenant
not abandoned the demised premises, over the rents, if any, collected
by Landlord in respect of such month period pursuant to any reletting.
Any suit or action brought to collect the amount of the deficiency for
any month or months period shall not prejudice in any way the rights of
Landlord to collect rents from time to time for any month or months
period in subsequent proceedings.
(E) In the event of termination of this lease as a result of
Tenant's breach of this lease or pursuant to Article 15 above, Landlord
shall have the right:
(1) To remove any and all persons and property from
the demised premises, with or without legal process, and
pursuant to such rights and remedies as the laws of the State
of Colorado shall then provide or permit, but Landlord shall
not be obligated to effect such removal. Said property may, at
Landlord's option, be stored or otherwise dealt with as
provided in this lease or as such laws may then provide or
permit, including but not limited to the right of Landlord to
sell or otherwise dispose of the same or to store the same, or
any part thereof, in a warehouse or elsewhere at the expense
and risk of and for the account of Tenant.
(2) To recover from Tenant damages, which shall
include but shall not be limited to: (a) expenses incurred by
Landlord for reasonable legal expenses, reasonable attorneys'
fees, court costs, for reletting (including but not limited to
advertising and brokerage), for putting the demised premises
in good order, condition and repair, for preparing the same
for reletting, and for keeping the demised premises in good
order, condition and repair (before and after Landlord has
prepared the same for reletting), and all costs incurred in
connection with the appointment of and performance by any
receiver, and (b) the equivalent of the amount of rent and
other charges which would be payable under this lease by
Tenant if this lease were still in effect, less the net
proceeds of any reletting, after deducting all Landlord's
expenses in connection with such reletting, including, without
limitation, expenses for advertising, brokerage, putting the
demised premises in good order, condition and repair,
preparing the same for reletting, and keeping the demised
premises in good order, condition and repair (before and
-24-
after Landlord has prepared the same for reletting). Tenant
shall pay the amount of such damages to Landlord monthly on
the days on which the rent would have been payable under this
lease if this lease were still in effect, and which Landlord
shall be entitled to recover from Tenant as each monthly
deficiency shall arise.
(3) In lieu collecting any or further monthly
deficiencies as set forth in subsection (b) of Section (E)(2),
Landlord shall be entitled to recover from Tenant, as
liquidated damages for such breach, in addition to any damages
becoming due under subsection (a) of Section (E)(2), an amount
equal to the difference between the present value of the Base
Annual Rent, additional rent and all other sums due Landlord
hereunder, from the date of such breach to the date of the
expiration of the term and the present reasonable rental value
of the demised premises for the same period, both discounted
to the date of such breach at a rate of 6% per annum.
(4) To enforce, to the extent permitted b the laws of
the State of Colorado then in force and effect, any other
rights or remedies set forth in this lease or otherwise
applicable hereto by operation of law or contract.
(F) In the event of a breach or threatened breach by Tenant of
any of the terms or covenants of this lease, Landlord shall
additionally have the right of injunction, and Tenant agrees to pay the
premium for any bond required in connection with such injunction.
Mention in this lease of any particular remedy shall not preclude
Landlord from any other remedy, at law or in equity.
(G) Tenant acknowledges that late payments cause Landlord to
incur costs not contemplated by this lease, the exact amounts of which
are extremely difficult to ascertain, such as processing and accounting
charges and late charges imposed on Landlord by any mortgage or deed of
trust encumbering the real property or Building. Without any
requirement for notice, for each month rent is not paid within ten (10)
days after due date, Tenant shall pay to Landlord a late charge equal
to the greater of $25.00 or 4% of such amount due for each thirty (30)
day period, or fraction thereof, during which such amount remains
unpaid. This provision for a late charge shall be in addition to all of
Landlord's other rights and remedies available under this lease or at
law.
17. FEES AND EXPENSES
If Tenant defaults in the performance of any of its obligations under
this lease, Landlord may immediately, or at any time thereafter, without notice,
perform the same for the account of Tenant. If Landlord at any time is compelled
to pay or elects to pay any sum of money or do any act which will require the
payment of any sum of money (including but not limited to employment of
attorneys or incurring of costs), by reason of the failure of Tenant to comply
with
-25-
any term or covenant hereof, or, if Landlord is compelled to incur or elects to
incur any expense (including but not limited to reasonable attorneys' fees in
instituting, prosecuting or defending any action or proceeding, regardless of
whether such action or proceeding proceeds to judgment) by reason of any default
of Tenant hereunder, the sums so paid by Landlord with interest at the lease
rate, and costs and damages shall be due from Tenant to Landlord promptly upon
demand by Landlord.
18. NO REPRESENTATIONS BY LANDLORD
Neither Landlord nor Landlord's agents have made any representations or
promises with respect to the real property, Building or the demised premises
except as expressly set forth in this lease. The taking of possession of the
demised premises by Tenant shall be conclusive evidence that Tenant accepts the
same in then "as is" condition and that the demised premises and the Building
were in good and satisfactory condition at the Commencement Date.
19. END OF TERM
Upon the expiration or earlier termination of this lease, Tenant shall
quit and surrender the demised premises to Landlord, broom clean, in as good
order, condition and repair as they now are or may hereafter be placed, ordinary
wear excepted. Tenant shall remove all property of Tenant, as directed by
Landlord. Any property left on the demised premises at the expiration or earlier
termination of this lease, or after the happening of any of the events of
default set forth in Article 16 above, may, at the option of Landlord, either be
deemed abandoned or be placed in storage at a public warehouse in the name of
and for the account of and at the expense and risk of Tenant. If such property
is not claimed by Tenant within ten (10) days after such expiration,
termination, or the happening of an event of default, it may be sold or
otherwise disposed of by Landlord. Tenant expressly releases Landlord of and
from any and all claims and liability for damage to or loss of property left by
Tenant upon the demised premises at the expiration or earlier termination of
this lease, and Tenant hereby indemnifies Landlord against any and all claims
and liability with respect thereto. If Tenant holds over after the said term
with the consent of Landlord, express or implied, such tenancy shall be from
month to month only and shall not be a renewal hereof, and Tenant shall pay the
rent and all the other charges at the same rate as herein provided and also
comply with all of the terms, covenants, conditions, provisions and agreements
of this lease for the time during which Tenant holds over. If Tenant holds over
after the said term without the consent of Landlord, Tenant shall be liable to
Landlord for use and occupancy of the demised premises in an amount agreed to be
one and one-half (1-1/2) the monthly installment of Base Annual Rent and all the
other charges as provided in this lease for the last month of the term
hereunder. In the event Tenant holds over without Landlord's consent for a
period exceeding sixty (60) days beyond the term of this lease, Tenant shall be
additionally responsible to Landlord for all damage (including but not limited
to the loss of rent) which Landlord shall suffer by reason thereof, and Tenant
hereby indemnifies Landlord against all claims made by any succeeding tenant
against Landlord, resulting from delay by Landlord in
-26-
delivering possession of the demised premises to such succeeding tenant. In the
event Tenant holds over after the said term without the consent of Landlord,
Landlord shall be responsible for mitigating its damages to the extent required
by law. Tenant's obligation to observe or perform all of the terms, covenants,
conditions, provisions and agreements of this Article shall survive the
expiration or other termination of this lease.
20. QUIET POSSESSION
Landlord covenants and agrees with Tenant that upon Tenant's paying
said rent and observing and performing all of the terms and covenants of this
lease on Tenant's part to be observed or performed, Tenant shall have quiet
possession of the premises hereby demised, for the term, subject, however, to
the terms of this lease and of any ground leases, underlying leases, mortgages
and deeds of trust affecting all or any portion of the real property, Building
or any of the areas used in connection with the operation of the real property
or Building.
21. TERMINATION, NO WAIVER, NO ORAL CHANGE
In the event that this lease terminates for any reason (including but
not limited to termination by Landlord) prior to its natural expiration date,
such termination will effect the termination of any and all agreements for the
extension of this lease (whether expressed in an option, exercised or not, or
collateral document or otherwise); any right herein contained on the part of
Landlord to terminate this lease shall continue during an extension hereof, any
option on the part of Tenant herein contained for an extension hereof shall not
be deemed to give Tenant any option for a further extension beyond the first
extended term. Interruption or curtailment of any services which could not
reasonably have been avoided by Landlord shall not constitute a constructive or
partial eviction or, except as otherwise provided in Article 13, entitle Tenant
to any abatement of rent or any compensation (including but not limited to
compensation for annoyance, inconvenience or injury to business). No act or
thing done by Landlord or Landlord's agents during the term hereby demised shall
be deemed an acceptance of a surrender of the demised premises, and no agreement
to accept such surrender shall be valid unless in writing signed by Landlord. No
employee of Landlord or of Landlord's agents shall have any power to accept the
keys of the demised premises prior to the termination of this lease. The
delivery of keys to any employee of Landlord or of Landlord's agents shall not
operate as a termination of this lease or of surrender of the demised premises.
The failure of Landlord to seek redress for violation of, or to insist upon the
strict performance of, any term, covenant, condition, provision or agreement of
this lease or any of the Rules and Regulations attached to this lease or
hereafter adopted by Landlord, shall not prevent a subsequent act, which would
have originally constituted a violation, from having all the force and effect of
an original violation. The receipt by Landlord of rent with knowledge of the
breach of any term, covenant, condition, provision or agreement of this lease
shall not be deemed a waiver of such breach. The failure of Landlord to enforce
any of the Rules and Regulations attached to this lease, or hereafter adopted,
against Tenant or any other tenant in the Building shall not be deemed a waiver
of any such Rule and Regulation. No
-27-
provision of this lease shall be deemed to have been waived by Landlord, unless
such waiver be in writing signed by Landlord. No payment by Tenant or receipt by
Landlord of a lesser amount than the monthly rent herein stipulated shall be
deemed to be other than on account of the earliest stipulated rent, nor shall
any endorsement or statement on any check or any letter accompanying any check
or payment as rent be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such rent or pursue any other remedy in this lease provided. This
lease contains the entire agreement between the parties, and recites the entire
consideration given and accepted by the parties. Any agreement hereafter made
shall be ineffective to change, modify, waiver or discharge it in whole or in
part unless such agreement is in writing and signed by the party against whom
enforcement of the change, modification, waiver or discharge is sought.
22. INABILITY TO PERFORM
This lease and the obligation of Tenant to pay rent hereunder and to
keep, observe and perform all of the other terms and covenants of this lease on
the part of Tenant to be kept, observed or performed shall in no way be
affected, impaired or excused because Landlord is unable to fulfill any of its
obligations under this lease or to supply, or is delayed or curtailed in
supplying, any service to be supplied or is unable to make, or is delayed or
curtailed in making, any repairs, alterations, decorations, additions or
improvements, or is unable to supply, or is delayed or curtailed in supplying,
any equipment or fixtures, if Landlord is prevented, delayed or curtailed from
so doing by reason of any cause beyond Landlord's reasonable control, including,
but not limited to, acts of God, strike or labor troubles, fuel or energy
shortages, including, but not limited to, natural gas shortages, governmental
preemption or curtailment in connection with a national emergency or in
connection with any rule, order, guideline or regulation of any department or
governmental agency or by reason of the conditions of supply and demand which
have been or are affected by a war or other emergency. Any such prevention,
delay or curtailment shall be deemed excused and Landlord shall not be subject
to any liability resulting therefrom.
23. BILLS AND NOTICES
A notice or communication which Landlord may desire or be required to
give to Tenant, shall be deemed sufficiently given or rendered if in writing,
delivered to Tenant personally or sent by certified mail addressed to Tenant at
the Building. The receipt of any notice or communication shall be deemed to be
the time when the same is delivered to Tenant or mailed as provided above. Any
notice or communication by Tenant to Landlord must be in writing and served by
certified mail (postage fully prepaid) addressed to Landlord, at the address set
forth in Article L of Section I, or at such other address as Landlord shall
designate by notice given as herein provided, and the time of the giving of such
notice, request, demand or communication shall be deemed to be the time when the
same is mailed as provided above.
-28-
24. SECURITY [Intentionally Omitted]
25. MARGINAL NOTES
The marginal notes are inserted only as a matter of convenience and for
reference and in no way define, limit or describe the scope or intent of this
lease.
26. BROKERAGE
Tenant represents that Tenant has dealt directly with (and only with)
the broker listed in Article N of Section I as broker in connection with this
lease and that no other broker negotiated this lease or is entitled to any
commission in connection with it.
27. BINDING EFFECT
All of the terms, conditions, provisions and agreements of this lease
shall be deemed to be covenants. The covenants contained in this lease shall
bind and inure to the benefit of Landlord and Tenant and their respective legal
representatives and successors, and, except as otherwise provided in this lease,
their assigns.
28. CERTAIN RIGHTS RESERVED TO THE LANDLORD
Landlord reserves the following rights:
(A) To name the Building and to change the name or street
address of the Building.
(B) To install and maintain a sign or signs on the exterior or
interior of the Building.
(C) To approve all sources furnishing sign painting and
lettering in the demised premises.
29. MISCELLANEOUS
(A) This lease is offered to Tenant for signature by Tenant,
and this lease shall not be binding upon Landlord unless and until such
time as Landlord shall have executed and delivered the same.
(B) If a partnership or more than one legal person is at any
time Tenant, (1) each partner and each legal person is jointly and
severally liable for the keeping, observing and performing of all of
the terms, covenants, conditions, provisions and
-29-
agreements of this lease to be kept, observed or performed by Tenant,
and (2) the term "Tenant" as used in this lease shall mean and include
each of them jointly and severally, and the act of or notice from, or
notice or refund to, or the signature of, any one or more of them, with
respect to the tenancy or this lease, including but not limited to, any
renewal, extension, expiration, termination or modification of this
lease, shall be binding upon each and all of the persons executing this
lease as Tenant with the same force and effect as if each and all of
them had so acted or so given or received such notice or refund or so
signed. Termination of a partnership-Tenant shall be deemed to be an
assignment jointly to all of the partners, who shall thereafter be
governed by the next preceding clauses "(1)" and "(2)" hereof just as
if each and all such former partners had initially signed this lease as
individuals.
(C) In the event any term or covenant of this lease is held to
be invalid or void by any court of competent jurisdiction, the
invalidity of any such term or covenant shall in no way affect any
other term or covenant of this lease.
(D) Landlord shall not be obligated to provide or maintain any
security patrol or security system. However, if the parties hereto
mutually agree that Landlord shall provide such patrol or system, the
cost thereof shall be included in Operating Costs as defined in Article
2 above. Landlord shall not be responsible for the quality of any such
patrol or system which may be provided hereunder or for damage or
injury to Tenant, its employees, invitees or others due to the failure,
action or inaction of such patrol or system.
(E) The maintenance and repair of the parking area shall be an
item of Operating Costs under Article 2 above.
(F) Any basement storage space or other storage space at any
time demised to Tenant hereunder shall be used exclusively for storage.
Notwithstanding any other provision of this lease to the contrary, (1)
only such ventilation and heating will be furnished by Landlord as
will, in Landlord's judgment, be adequate for use of said space for
storage, (2) no cleaning, water or air conditioning will be furnished
therefor, and (3) only such electricity will be furnished hereto as
will, in Landlord's judgment, be adequate to light said space as
storage space.
(G) Time is of the essence with respect to the performance of
each and every provision of this lease. In the event the last day
permitted for the performance of any act required or permitted under
this lease falls on a Saturday, Sunday, or holiday, the time for such
performance will be extended to the next succeeding business day. Each
time period under this lease will exclude the first day and include the
last day of such period.
-30-
(H) Neither this lease, nor any notice nor memorandum
regarding the terms hereof shall be recorded by Tenant. Any such
recording shall give Landlord the right to declare a breach of this
lease and pursue the remedies provided herein.
(I) If the name of Tenant or any successor or assign shall be
changed during the term of this lease, such party shall promptly notify
Landlord thereof, which notice shall be accompanied by a certified copy
of the document effecting such change of name.
(J) Tenant shall at any time and from time to time upon not
less than ten (10) days' prior notice from Landlord execute, deliver to
Landlord a statement in writing certifying to those facts for which
certification has been requested by Landlord or any current or
prospective purchaser, mortgagee (or beneficiary under a deed of trust)
or underlying lessor, including without limitation (1) that this lease
is unmodified and in full force and effect (or, if modified, adequately
identifying such modification and certifying that this lease, as so
modified, is in full force and effect) and (2) the dates to which the
base annual rent, additional rent and other charges are paid and (3)
whether there is any default by Landlord or Tenant in the performance
of any term, covenant, condition, provision or agreement contained in
this lease and further whether there are any set-offs, defenses or
counterclaims against enforcement of the obligations to be performed
under this lease and, if there are, specifying each such default,
set-off, defense or counterclaim. Any such statement may be
conclusively relied upon by any prospective purchaser or lessee or
encumbrancer of the demised premises or of all or any portion of the
Building or the areas used in connection with the operation of the
Building. Tenant's failure to verify such statement within such time
shall be conclusive upon Tenant that this lease is in full force and
effect, without modification except as may be represented by Landlord,
that there are no uncured defaults in Landlord's performance, and that
not more than one month's base annual rent has been paid in advance.
(K) Tenant covenants and agrees not to permit, introduce or
maintain in the future in, on or about any portion of the demised
premises, any asbestos, polychlorinated biphenyls, petroleum products
or any other hazardous or toxic materials, wastes and substances which
are defined, determined or identified as such in any federal, state or
local laws, rules or regulations (whether now or existing or hereafter
enacted or promulgated) or any judicial or administrative
interpretation of such laws, rules or regulations (collectively
"Environmental Laws"). Any such asbestos, polychlorinated biphenyls,
petroleum products and any other materials, wastes and substances are
collectively referred to herein as "Hazardous Materials." Tenant
further covenants and agrees to indemnify and save Landlord harmless
against any and all damages, losses, liabilities, obligations,
penalties, claims, litigation, demands, defenses, judgments, suits,
proceedings, costs, disbursements or expenses of any kind or of any
nature whatsoever (including, without limitation, attorneys' and
experts' fees and disbursements) which may at any time be imposed upon,
incurred by or asserted or awarded against Landlord and
-31-
arising from or out of any Hazardous Materials in all or any portion of
the demised premises or the Building, introduced by, or on behalf of,
Tenant including without limitation (i) the cost of removal of all such
Hazardous Materials from all or any portion of the demised premises or
Building, (ii) additional costs required to take necessary precautions
to protect against the release of Hazardous Materials on, in, under or
affecting the demised premises or Building, into the air, any body of
water, any other public domain or any surrounding areas, and (iii)
costs incurred to comply, in connection with all or any part of the
demised premises or Building, with all applicable laws, orders,
judgments and regulations with respect to Hazardous Materials. The
preceding portions of this paragraph 29(K) do not apply to Hazardous
Materials which may be located in the demised premises or Building at
or prior to the initial commencement of any work, construction, repairs
or alterations therein by Tenant. The provisions of this paragraph
29(K) shall survive the termination or expiration of this lease.
(L) Tenant shall submit to Landlord all advertising, sales
promotion and other publicity matters relating to the demised premises,
this lease and to product(s) furnished or service(s) performed by
Tenant wherein the name of Landlord, its subsidiaries or affiliates are
or may be mentioned or may, in Landlord's judgment, be inferred or
implied. Tenant further agrees not to publish or use such advertising,
sales promotion, or publicity matter without the prior written approval
of Landlord, which consent may be given or withheld in Landlord's
reasonable discretion. It is expressly understood that in the foregoing
obligations, including the confidentiality of information received
subsequent to the termination or expiration of this lease, shall
survive the termination or expiration of this lease.
(M) This lease shall create the relationship of landlord and
tenant between Landlord and Tenant; no estate shall pass out of
Landlord; and Tenant has only a usufruct which is not subject to levy
and sale.
(N) It is mutually agreed by and between Landlord and Tenant
that the respective parties hereto shall and they hereby do waive trial
by jury in any action, proceeding or counterclaim brought by either of
the parties hereto against the other on any matters whatsoever arising
out of or in any way connected with this lease, the relationship of
landlord or tenant, Tenant's use or occupancy of the demised premises,
and any emergency statutory or any other statutory remedy.
(O) No receipt of money by Landlord from Tenant after the
termination of this lease or after the service of any notice or after
the commencement of any suit, or after final judgment for possession of
the demised premises shall reinstate, continue or extend the term of
this lease or affect any such notice, demand or suit or imply consent
for any action for which Landlord's consent is required.
-32-
(P) The term "Landlord" as used in this lease, so far as
covenants or agreements on the part of Landlord are concerned, shall be
limited to mean and include only the owner or owners of Landlord's
interest in this lease at the time in question, and in the event of any
transfer or transfers of such interest Landlord herein named (and in
case of any subsequent transfer, the then transferor) shall be
automatically freed and relieved from and after the date of such
transfer of all personal liability as aspects the performance of any
covenants or agreements on the part of Landlord contained in this lease
thereafter to be performed.
(Q) It is understood that Landlord may occupy portions of the
Building in the conduct of Landlord's business. In such event, all
references herein to other tenants of the Building shall be deemed to
include Landlord as an occupant.
(R) All of the covenants of Tenant hereunder shall be deemed
and construed to be "conditions" as well as "covenants" as though the
words specifically expressing or importing covenants and conditions
were used in each separate instance.
(S) Notwithstanding any provision contained in this lease to
the contrary, Tenant agrees that neither Landlord nor any officer,
director, shareholder or agent of Landlord, nor any other person or
entity having any interest, direct or indirect, immediate or more
removed than immediate, in Landlord, shall have any personal liability
with respect to any of the provisions of this lease and Tenant shall
look solely to the estate and property of Landlord in the real property
for the satisfaction of Tenant's remedies, including without
limitation, the collection of any judgment or the enforcement of other
judicial process requiring the payment or expenditure of money by
Landlord, subject, however, to the prior rights of any holder or
beneficiary of any mortgage or deed of trust encumbering all or any
portion of the real property, and no other assets of Landlord or its
officers, directors, shareholders and agents, or of any other aforesaid
person or entity having any interest in Landlord, shall be subject to
levy, execution or other judicial process for the satisfaction of
Tenant's claims.
(T) Tenant shall have the right, at Tenant's sole cost and
expense, at any time after the Commencement Date, to install a sign
(the "Tenant's Sign") on the Building. The Tenant Sign shall comply
with all applicable laws, rules, regulations and codes. The location,
size, materials, coloring, lettering and lighting of the Tenant Sign
shall be subject to Landlord's prior written approval which approval
shall (1) be conditioned upon the Tenant Sign not adversely affecting
any other tenant of the Building (as reasonably determined by Landlord)
nor any signage located upon the Building as of the date hereof (2) be
conditioned upon the Tenant Sign being consistent and compatible with
the Building's design, architecture, signage and graphics and (3) not
be unreasonably withheld. Tenant shall repair and maintain the Tenant
Sign and the characters and letters thereon in a condition comparable
to the condition of similar signs installed or erected on
-33-
comparable first class office buildings located in Boulder, Colorado.
On or before the expiration of this lease or upon written notice from
Landlord at any time Tenant fails to continuously occupy at least
18,000 square feet of rentable area in the Building, Tenant shall
remove the Tenant Sign and shall repair any damage to the Building
caused by the installation, maintenance or removal of the Tenant Sign.
(U) Landlord represents to Tenant, to the best of its actual
knowledge, that there are no Hazardous Materials (other than office
building equipment and cleaning supplies used in accordance with
industry standards and governmental requirements) in the Building, and
the Landlord shall comply with all statutes, rules, orders, regulations
and requirements the federal, state, county and city governments and
all departments thereof applicable to the presence, storage, use,
maintenance or removal of Hazardous Materials in or about the Building,
which presence, storage, use, maintenance or removal is caused by
Landlord. Notwithstanding the foregoing, Tenant shall have the right to
use office equipment and cleaning supplies that may be Hazardous
Materials, so long as such are used in accordance with industry
standards and governmental requirements. In the event the
representation contained in this paragraph becomes materially untrue or
incorrect, and the existence of such condition (y) violates applicable
Environmental Laws, and (z) materially and adversely affects the
Tenant's use and enjoyment of the demised premises, the Landlord shall
be permitted sixty (60) days after receipt of written notice from the
Tenant to bring the Building into compliance with applicable
Environmental Laws; provided, however, in the event such compliance or
registration cannot reasonably be completed or obtained within such
sixty (60) days, Landlord shall not be in default hereunder provided
the Landlord commences such corrective action within said sixty (60)
days and diligently pursues the same to completion.
30. DELETED
31. DELETED
32. DELETED
33. DELETED
34. DELETED
35. RIGHT OF FIRST OFFER
Before entering into a lease for all or any portion of the third floor space in
the Building other than the demised premises (the "Additional Space") during the
original Lease Term, and so long as Tenant is not then in breach of the Lease at
any time prior to execution of the lease for the additional space as provided
below, Landlord will notify Tenant of the Base Annual Rent and
-34-
rental increases ("Rental Terms") on which it would be willing to lease the
Additional Space to Tenant. The Landlord agrees that the Rental Terms shall be
based upon the Additional Space's reasonable market rental value as reasonably
determined by Landlord.
If within ten (10) days after receipt of Landlord's notice, Tenant agrees in
writing to lease the Additional Space for a term not to exceed the remaining
original Lease Term at the Rental Terms, Landlord and Tenant will execute a
lease for the Additional Space within ten (10) days after Landlord's receipt of
Tenant's notice of intent to lease on all the same terms as the Lease, except
for the Rental Terms, tenant improvement allowance, free parking and other
matters which are dependent upon the rentable area of the demised premises, such
as Tenant's Percentage of Operating Expenses. If Tenant does not deliver its
notice of intent to lease all of the Additional Space offered in Landlord's
notice within such ten (10) day period, or if Landlord and Tenant do not enter
into a fully executed lease for the Additional Space within such ten (10) day
period, then this right of first offer to lease the Additional Space will lapse
and be of no further effect and Landlord will have the right to lease the
Additional Space or any portion of the Additional Space to a third party on the
same or any other terms and conditions, whether or not such terms and conditions
are more or less favorable than those offered to Tenant. This right of first
offer to lease is personal to Tenant and its legal successors and is not
transferable to any permitted assignee or subtenant.
This right of first offer shall be subject and subordinate (i) to any renewal
rights, expansion options, rights of first refusal, rights of first offer and
similar tenant rights previously granted to any tenant of the Building and their
respective successors and assigns, and (ii) to any renewal rights, expansion
options, first refusal, rights of first offer and similar tenant rights granted
by Landlord to any tenant leasing any portion of the Additional Space after the
Tenant declined to exercise its right of first offer.
Time is of the essence with respect to the provisions of this Article.
36. RENT ADJUSTMENT
Commencing January 1, 1997 the Base Annual Rent payable by Tenant shall
be increased on the first day of January during each year remaining in the Lease
Term in accordance with this Article 36.
(A) In this Article,
(1) "base year" means calendar year 1996.
(2) "price index" means the consumer price index
published by the Bureau of Labor Statistics of the United
States Department of Labor, U.S. City
-35-
Average, All Items and Major Group Figures for Urban Wage
Earners and Clerical Workers (1982-84 = 100).
(3) "price index for the base year" means the average
of the monthly price indexes for each of the twelve (12)
months of the base year.
(B) The January 1 increase shall be based on the percentage
difference between the price index for the preceding month of December
and the price index for the base year; provided, however, that Base
Annual Rent shall be increased a minimum of three percent (3%) each
year and in no event shall such increase exceed nine percent (9%) for
any year.
(C) If the price index for December in any calendar year
during the Lease Term is greater than the price index for the base
year, then the Base Annual Rent payable commencing on the next January
1 (without regard to any increase pursuant to this Article) shall be
multiplied by the percentage difference between the price index for
December and the price index for the base year, and the product
(subject to the provisions of paragraph 36(B)) will be added to the
Base Annual Rent effective as of January 1. The adjusted Base Annual
Rent shall be payable in equal monthly installments until it is
readjusted pursuant to the terms of this Article.
(D) If substantial change is made in the methodology used in
preparing the price index, then the price index will be adjusted to the
figure that would have been used had the manner of computing the price
index in effect at the date of this lease not been altered. If the
price index (or a successor or substitute index) is not available, a
reliable governmental or other nonpartisan publication evaluating the
information used in determining the price index will be used.
(E) No adjustments will be made due to any revision that may
be made in the price index for any month.
(F) A statement explaining each annual increase shall be
furnished by Landlord to Tenant as soon as reasonably possible each
year and will consist of data prepared by the Landlord in reference to
published Bureau of Labor Statistics indexes.
(G) Landlord's delay or failure of Landlord, beyond January 1
of any year, in computing or billing for an increase in the Base Annual
Rent will not impair the continuing obligation of Tenant to pay such
increase.
(H) Tenant's obligation to pay Base Annual Rent as increased
pursuant to the terms of this Article will continue through the
Expiration Date and will survive any earlier termination of this lease.
-36-
37. RENEWAL OPTION
(A) Tenant shall have one (1), six (6) year renewal option
(the "Renewal Option") to extend the Lease Term for a renewal term
("Renewal Term"). The Renewal Term shall commence on the day after the
Expiration Date of the Lease Term and shall expire on the sixth
anniversary of the Expiration Date. The Renewal Option shall be
exercisable by Tenant by written notice to Landlord ("Renewal Notice")
given not later than the date that is twenty-one (21) months prior to
the then Expiration Date. Notwithstanding the foregoing provisions of
this paragraph 37(A), Tenant shall not have the right to exercise the
Renewal Option if Tenant is in default under this lease at the time
such Renewal Option if Tenant is in default under this lease at the
time such Renewal Notice is given or at any time thereafter until the
commencement of such Renewal Term.
(B) The Renewal Term shall be upon the same covenants, terms
and conditions as in this Lease for the original Lease Term, except
that the Base Annual Rent on a per rentable square foot basis during
the Renewal Term shall be an amount (the "Renewal Term Base Annual
Rent") equal to the market rental value of the demised premises as
reasonably determined by Landlord after considering the rental rates
charged for comparable office space located in similar class A office
buildings within the City of Boulder. Landlord shall notify Tenant in
writing ("Notice of Rental Amount") of its determination of the Renewal
Term Annual Rent at least nineteen (19) months prior to the first day
of the Renewal Term. Tenant shall have the right to withdraw its
Renewal Notice at any time within thirty (30) days after Tenant's
receipt of the Notice of Rental Amount upon delivery of written notice
to Landlord. If Tenant fails to withdraw its Renewal Notice within said
thirty (30) day period, Tenant shall be deemed to have accepted
Landlord's determination of the Renewal Term Base Annual Rent and the
Renewal Notice shall be irrevocable.
38. PARKING
Tenant shall be permitted to use free of charge 59 parking permits for
the parking garage from the Commencement Date through August 31, 1996. From
September 1, 1996 through the Expiration Date, Tenant shall be permitted to use
its proportionate number of parking permits in the parking garage ("Tenant's
Proportionate Share of Parking Permits"). Tenant's Proportionate Share of
Parking Permits shall be qual to the product obtained by multiplying Tenant's
Percentage by the number of parking spaces located in the parking garage which
are available to tenants of the building from time to time. The parking permits
shall be made available on an unassigned basis and shall be made available
subject to such reasonable rules and regulations as Landlord may from time to
time establish and amend. Landlord shall provide Tenant 50% of the Tenant's
Proportionate Share of Parking Permits free of charge from August 31, 1996
through the Expiration Date. For each additional Parking Permit Tenant shall pay
Landlord the Building Standard Parking Permit Rate.
-37-
39. EXISTING LEASE AGREEMENTS
Tenant is in possession of and occupies the demised premises pursuant
to the terms of three lease agreements between Tenant and Landlord's
predecessor, PERA, dated April 6, 1988, August 18, 1989, and August 1, 1993,
respectively (collectively referred to herein together with any amendments
thereto as the "Prior Leases"). Landlord and Tenant hereby agree that the Prior
Leases shall be deemed to have expired at 12:00 midnight, August 31, 1994, it
being the intent of Landlord and Tenant that this lease shall supersede and
replace the Prior Leases in all respects as of the Commencement Date.
Any rider or exhibit annexed hereto is made a part hereof.
LANDLORD:
▇.▇. ▇▇▇▇▇▇▇▇▇▇, INC., a Colorado corporation
/s/ ▇.▇. ▇▇▇▇▇▇▇▇▇▇ III
By:_______________________________________
▇. ▇. ▇▇▇▇▇▇▇▇▇▇, III, President
TENANT:
RCG/▇▇▇▇▇▇ BAILLY, INC., a District of
Columbia corporation
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By:_______________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
-38-
RULES AND REGULATIONS
Tenant covenants that the following rules, regulations and stipulations
and such other further rules and regulations as Landlord may make, being, in
Landlord's judgment, necessary, for the safety, care and cleanliness of the
Building and the demised premises or the comfort of the tenants, shall be
faithfully kept, observed and performed by Tenant, and to the best of Tenant's
efforts by the agents, servants, invitees, guests and visitors of the Tenant,
unless waived in writing by Landlord:
1. Landlord shall have the right to control and operate the public
portions of the Building, as well as facilities furnished for the common use of
tenants, in such manner as it deems best for the benefit of all tenants
generally. No tenant shall invite to the demised premises, or permit the visit
of persons in such numbers or under such conditions as to interfere with the use
and enjoyment of the entrances, corridors, elevators and facilities of the
Building by other tenants.
2. Landlord may refuse admission to the Building outside of ordinary
business hours to any person not known to any security personnel in charge or
not having a pass issued by a tenant or not properly identified, and may require
all persons admitted to or leaving the Building outside of the ordinary business
hours to register.
3. The plaza, sidewalks, entrances, elevators, stairways and corridors
of the Building shall not be obstructed by any tenant or used by it for any
other purpose than for ingress and egress to and from the demised premises, and
no tenant shall place or allow to be placed in or on the entrance, hallways,
corridors, elevators, washrooms or stairways any waste paper, dust, garbage,
refuse or anything whatever that shall tend to make them appear unclean or
untidy.
4. No awnings or other projections over or around the windows,
entrances or penthouse patio deck area of the demised premises shall be
installed by any tenant.
5. Freight, furniture, business equipment, merchandise and bulky matter
of any description shall be ordinarily delivered to and removed from the demised
premises only in the freight elevator or the elevator equipped with the
protective elevator cover, at such times and in such manner as provided by the
Landlord. The Landlord shall have the right to approve or disapprove the movers
or moving company employed by any tenant, and each tenant shall cause said
movers to use only the loading facilities and elevator designated by Landlord.
In the event any tenant's movers damage the elevator or any part of the
Building, such tenant shall forthwith pay to Landlord the amount required to
repair said damage.
6. All entrance doors in the demised premises shall be left locked by
tenant when the demised premises are not in use.
-i-
7. Canvassing, soliciting or peddling in the Building is prohibited and
each tenant shall cooperate to prevent the same.
8. No tenant shall permit the introduction into the demised premises or
the Building of any machine or mechanical device of any nature whatsoever that
may be liable to cause objectionable noise or vibration or be injurious to the
demised premises or the Building.
9. No tenant shall install or permit the installation or use of any
machine dispensing goods on sale in the demised premises (except for a
reasonable quantity of vending machines for Tenant's employee's use only) or the
Building or permit the delivery of any food or beverage to the demised premises
(except for lunches and dinners for employees and customers in quantities which
are customary for tenant's occupying a first-class office building in the
Boulder, Colorado area without the approval of Landlord. Only persons authorized
by Landlord shall be permitted to deliver or to use the elevators in the
Building for the purposes of delivering food or beverages to the demised
premises.
10. No safe or article, the weight of which may, in the opinion of
Landlord, constitute a hazard or damage to the Building or the Building's
equipment, shall be moved into the demised premises. Safes and other equipment,
the weight of which is not excessive, shall be moved into, from, or about the
Building only during such hours and in such manner as shall be prescribed by
Landlord, and Landlord shall have the right to designate the location of such
articles in the demised premises.
11. No tenant shall do or permit anything to be done in the demised
premises, or bring or keep anything therein which would in any way increase the
rate of fire insurance on the Building or on property kept therein, constitute a
nuisance or waste, or obstruct or interfere with the rights of other tenants, or
in any way injure or annoy them, or conflict with the laws relating to fire, or
with the regulations of the fire department, fire insurance underwriters or with
any insurance policy upon the Building or any part thereof, or conflict with any
of the rules or ordinances of the Department of Health of the City and County of
Boulder, Colorado.
12. No tenant shall permit any cooking in the demised premises without
the written consent of Landlord (excluding preparation of coffee, tea, hot
chocolate and similar items and microwave heating). No tenant shall permit any
objectionable or unusual odors to be produced in the demised premises.
13. Any hand trucks, carryalls or similar appliances used for the
delivery or receipt of merchandise or equipment shall be equipped with rubber
tires, side guards and such other safeguards as Landlord shall require.
-ii-
14. If any apparatus used or installed by any tenant requires a permit
as a condition for its installation, the tenant must first receive Landlord's
written permission and then file a copy of such permit with Landlord prior to
installation.
15. No tenant shall place any additional locks or bolts upon any doors
of the demised premises or the Building without the written consent of Landlord.
Landlord and any janitor employed by Landlord may at all times keep a passkey to
the demised premises and Landlord and its agents shall be allowed admittance to
the demised premises at all times. Two keys to the demised premises and the
toilet rooms if locked by Landlord will be furnished by Landlord, and neither
tenant, tenant's agents nor employees shall have any duplicate keys made.
Landlord shall supply each tenant with such additional keys as tenant may
require at the tenant's sole cost and expense. At the termination of its
tenancy, the tenant shall promptly return to Landlord all keys to office, toilet
rooms or vaults.
16. No tenant shall install any blinds, curtains or drapes that would
be exposed to view from the exterior of the Building without the written consent
of Landlord.
17. No signs, advertisements or notices sun be inscribed, painted or
affixed on any part of the outside of the Building, whatever, or inside the
Building or on any windows within the exterior walls of the demised premises
unless of color, size and style and in such places, upon or in the Building as
shall be first designated in writing by Landlord, and any tenant on ceasing to
be a tenant of the demised premises shall, before leaving same, cause any sign
as aforesaid to be removed or obliterated at its own expense, and in a
workmanlike manner shall repair any damage caused thereby. Landlord may remove
any nonpermitted signs without notice at the tenant's expense.
18. The directory boards provided by Landlord and the space thereon
allotted to each tenant of the Building for directory listing shall be of such
size and style as Landlord shall decide.
19. No tenant shall drill into, or in any way deface the walls,
ceilings, partitions, floors, wood, stone or ironwork. Boring, cutting or
stringing of wires including electronic, telegraphic or telephonic connections,
or pipes shall not be permitted, except with the prior written consent of
Landlord, and as it may direct.
20. No tenant shall use the demised premises or any part thereof for
sleeping apartments.
21. No tenant shall operate or permit to be operated any musical or
sound producing instrument or device inside or outside the demised premises. No
tenant shall install any radio or television antennae, loud-speakers, sound
amplifiers or similar devices on the roof or exterior walls of the Building
without the written consent of Landlord.
-iii-
22. No bicycles, vehicles, birds or animals of any kind shall be
allowed into or kept in or about the Building; provided that Tenant's employees
shall be permitted to park bicycles on the demised premises as long as (i)
Tenant complies with all applicable laws, rules, codes and statutes related to
the use and storage of such bicycles, (ii) Landlord is released by Tenant and
its employees from any and all claims, losses, demands and damages relating to
any use or storage of the bicycles upon the demised premises or the Building
(including but not limited to any loss, theft or vandalism to any bicycles, and
(iii) the common areas and the demised premises are kept clean and are not
damaged.
23. Where pad is installed under carpet, tenant, at its expense, shall
use chair pads under all caster chairs for all areas with carpeting to protect
the carpeting in the demised premises.
24. No tenant shall install or operate any steam or gas engine or
boiler, or carry on any mechanical business in the Building. The use of oil, gas
or inflammable liquids for heating, lighting or any other purpose is expressly
prohibited. Explosives or other articles deemed extra hazardous shall not be
brought into the Building.
25. No tenant shall employ any person or persons other than the janitor
of Landlord for the purpose of cleaning or taking care of the demised premises,
without the prior written consent of Landlord. Landlord shall be in no way
responsible to any tenant for any loss of property from the demised premises,
however occurring, or for any damage done to any tenant's furniture or equipment
by the janitor or any of the janitor's staff, or by any other person or persons
whomsoever.
26. Water closets and other water fixtures shall not be used for any
purpose other than that for which they are intended, and any damage resulting to
them from misuse on the part of any tenant or any tenant's agents or employees,
shall be paid for by the tenant. No person shall waste water by tying back or
wedging the faucets or in any other manner.
27. No tenant shall allow anything to be placed on the outside of the
Building, nor shall anything be thrown by any tenant, any tenant's agents or
employees, out of the windows or doors, from the penthouse patio deck area or
down the corridors, elevator shafts, or ventilating ducts or shafts of the
Building. No tenant, except in case of fire or other emergency, shall open any
outside window.
28. No air conditioning unit or other similar apparatus shall be
installed or used by any tenant without the prior written consent of Landlord.
Any changes in the system subsequent to installation of initial tenant
improvements that are necessitated by any work done by or special requirements
of any tenant, including rebalancing and relocation of troffers, shall be
approved by Landlord and paid for in full by such tenant.
-iv-
29. Landlord reserves the right to promulgate, rescind, alter or waive
any rules or regulations at any time prescribed for the Building or parking
areas when it is necessary, desirable or proper for its best interest and, in
the sole discretion of Landlord (not to be exercised capriciously), for the best
interests of the tenants.
-v-
EXHIBIT A-1
-----------
[▇▇▇▇▇ Note: Please see Appendix for description of omitted graphics]
LEASED SPACE FROM 01/01/1995 -- 12/31/1995
Canyon Center
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Third Floor
Canyon Center
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Second Floor
-vi-
EXHIBIT A-2
-----------
[▇▇▇▇▇ Note: Please see Appendix for description of omitted graphics]
LEASED SPACE FROM 01/01/1996 -- 12/31/2001
Canyon Center
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Third Floor
Canyon Center
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Second Floor
-vii-
EXHIBIT B
---------
[▇▇▇▇▇ Note: Please see Appendix for description of omitted graphics]
(CANYON CENTER)
LEGAL DESCRIPTION OF
COMMERCIAL AREA - LOT 1
1.71 acres, more or less, located in the southeast quarter of
Section 25, Township 1 North, Range 71 west of the 6th Principal Meridian, City
of Boulder, Colorado, described as follows:
Beginning at the intersection of the south line of Walnut Street and
the west line of ▇▇▇ ▇▇▇▇▇▇, said point being the northeast corner of
Block 46, WEST BOULDER, a subdivision of the City of Boulder; thence
south 74(0)49'07" west; 304.35 feet, along the south line of Walnut
Street, thence south 15(0)10'53" east, 131.28 feet; thence north
74(0)49'07" east, 72.00 feet; thence south 15(0)10'53" east, 42.17
feet; thence north 74(0)49'07" east, 43.00 feet; thence south
15(0)10'53" east, 130.50 feet to the north line of Canyon Boulevard;
thence north 74(0)47'00" east, 189.08 feet along the north line of
Canyon Boulevard, to the west line of ▇▇▇ ▇▇▇▇▇▇; thence north
15(0)07'46" west, 303.83 feet along the west line of ▇▇▇ ▇▇▇▇▇▇ to the
point of beginning, containing 1.71 acres more or less. EXCEPTING
therefrom, Outlot A, more particularly described as follows:
Beginning at the intersection of the north line of Canyon
Boulevard and the west line of ▇▇▇ ▇▇▇▇▇▇; thence north
15(0)07'46" west, 100.00 feet along the west line of 9th
street; thence south 11(0)57'00", east, 90.15 feet; thence
south 29(0)49'38" west, 14.15 feet to the north line of Canyon
Boulevard; thence north 74(0)47'00" east, 15.00 feet along the
north line of Canyon Boulevard to the point of beginning,
containing 0.007 acres, more or less.
-viii-
ADDENDUM
THIS ADDENDUM, made as of the 10th of July, 1995, is between
▇.▇. ▇▇▇▇▇▇▇▇▇▇, Inc., a Colorado corporation ("Landlord") and RCG/▇▇▇▇▇▇
▇▇▇▇▇▇, Inc., a District of Columbia corporation ("Tenant"). Landlord and Tenant
have executed that certain Canyon Center Office Lease dated December 14, 1994
(the "Lease") pertaining to certain space in the building commonly known as
Canyon Center and located at ▇▇▇▇ ▇▇▇ ▇▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇. In the event of
any conflict between the provisions of this Addendum and the provisions of the
other portions of the Lease, the provisions of this Addendum shall control. The
capitalized terms used herein and not defined herein shall have the same
meanings used in the other portions of the Lease. Landlord and Tenant hereby
agree that the Lease is amended and supplemented as follows:
I. Demised Premises
Commencing January 1, 1996 through December 31, 1996, the Demised
Premises shall include Suite 317 (see attached Addendum Exhibit "A").
II. Demised Premises Rentable Area
Commencing January 1, 1996 through December 31, 1996 the Demised
Premises Rentable Area shall be increased by 1,175 square feet to
25,221 square feet (see attached Addendum Exhibit "B").
Commencing January 1, 1997 through December 31, 2001, the Demised
Premises Rentable Area shall be 24,046 square feet (see attached
Addendum Exhibit "C").
III. Base Annual Rent
Base Annual Rent shall be increased above the Lease Base Annual Rent
commencing January 1, 1996 through December 31, 1996 by $11,750.00
annually, payable in monthly installments of $979.17.
IV. Tenant's Percentage
A. From Commencement Date through
December 31, 1995 27.34%
B. From January 1, 1996 through
December 31, 1996 35.41%
C. From January 1, 1997 through
December 31, 2001 33.76%
-ix-
V. Tenant
The Tenant name has been changed to ▇▇▇▇▇▇ Bailly Consulting,
Inc. pursuant to paragraph 4 ASSIGNMENT, MORTGAGE SUBLETTING,
Sub paragraph (D).
All of the terms and provisions of the Lease, as herein
amended and supplemented, are hereby ratified and confirmed, and shall remain in
full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this
Addendum to be duly executed as of the day and year first above written.
LANDLORD:
▇. ▇. ▇▇▇▇▇▇▇▇▇▇, Inc., a Colorado
corporation
/s/ ▇.▇. ▇▇▇▇▇▇▇▇▇▇, Inc.
By:________________________________
▇. ▇. ▇▇▇▇▇▇▇▇▇▇, Inc.
8/17/95
Date:______________________
TENANT: ▇▇▇▇▇▇ Bailly Consulting, Inc., a District
of Columbia corporation
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By:__________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Director
7/27/95
Date:_______________________
-x-
ADDENDUM EXHIBIT "A"
--------------------
[▇▇▇▇▇ Note: Please see Appendix for description of omitted graphics]
Demised Premises, Suite 317
Floor 3 -- Section 1
-xi-
ADDENDUM EXHIBIT "B"
--------------------
[▇▇▇▇▇ Note: Please see Appendix for description of omitted graphics]
Canyon Center
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Third Floor
Canyon Center
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Second Floor
-xii-
ADDENDUM EXHIBIT "C"
--------------------
[▇▇▇▇▇ Note: Please see Appendix for description of omitted graphics]
Canyon Center
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Third Floor
Canyon Center
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Second Floor
-xiii-
SECOND ADDENDUM
THIS ADDENDUM, made as of the 12th of December, 1996, is
between ▇.▇. ▇▇▇▇▇▇▇▇▇▇, Inc., a Colorado corporation ("Landlord") and ▇▇▇▇▇▇
▇▇▇▇▇▇ Consulting, Inc., a State of Delaware corporation ("Tenant"). Landlord
and Tenant have executed that certain Canyon Center Office Lease dated December
14, 1994 and associated Addendum dated July 10, 1995 (the "Lease") pertaining to
certain space in the building commonly known as Canyon Center and located at
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. In the event of any conflict between the
provisions of this Addendum and the provisions of other portions of the Lease,
the provisions of this Addendum shall control. The capitalized terms used herein
and not defined herein shall have the same meanings used in other portions of
the Lease. Landlord and Tenant hereby agree that the Lease is amended and
supplemented as follows:
I. Delete paragraph G. Demised Premises of the lease and replace with the
following:
G. Demised Premises:
A portion of Floor 2 and a portion of Floor 3, as shown cross
hatched in black on the plan attached as ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇-▇
- ▇-▇, ▇-▇ - ▇-▇, ▇-▇ - ▇-▇ ▇▇▇ ▇-▇ - ▇-▇ and made a part
hereof, to be known as Suite 317 in the office building known
as Canyon Center, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(the "Building"), together with the right, subject to the
provisions of Section II, Article 38, to use on an unassigned
basis 59 parking spaces in the covered garage adjacent to the
Building (the "Parking Garage").
II. Delete paragraph H. Demised Premises Rentable Area and replace with the
following:
H. Demised Premises Rentable Area:
19,473 square feet as depicted on Addendum Exhibit A-1 and A-2
from Commencement Date through December 31, 1995 and 24,046
square feet as depicted on Addendum Exhibit B-1 and B-2 from
January 1, 1996 through December 31, 1996 and 25,422 square
feet as depicted on Addendum Exhibit C-1 and C-2 from January
1, 1997 through January 31, 1997 and 24,446 sf from February
1, 1997 through December 31, 2001 as depicted on Addendum
Exhibit D-1 and D-2. Landlord reserves the right to remeasure
the building and demised premises from time to time according
to applicable BOMA measurement standards. If measurements are
different than the areas originally contained in the lease,
then the relevant provisions of the lease will be adjusted,
including but not limited to the following: Building Rentable
Area, Demised Rentable Area,
-xiv-
Tenant's Percentage, Base Annual Rent, Tenant's Percentage of
the Operating Costs, and other terms, rates or provisions
affected by changes in the above.
III. Delete paragraph J. Base Annual Rent of the lease and replace with the
following:
J. Base Annual Rent:
(i) From the Commencement Date through August 31, 1995 an
annual rate of $248,280.75, payable in monthly
installments of $20,690.06 (Base Annual Rent being
calculated at $12.75 per square foot of rentable area
per annum);
(ii) From September 1, 1995 through December 31, 1995 an
annual rate of $253,149.00 payable in monthly
installments of $21,095.75 (Base Annual Rent being
calculated at $13.00 per square foot of rentable area
per annum);
(iii) From January 1, 1996 through July 31, 1996 an annual
rate of $336,644.00, payable in monthly installments
of $28,053.67 (Base Annual Rent being calculated at
$14.00 per square foot of rentable area per annum);
(iv) From August 1, 1996 through December 31, 1996 an
annual rate of $348,667.00, payable in monthly
installments of $29,055.58 (Base Annual Rent being
calculated at $14.50 per square foot of rentable are
per annum) subject to an annual increase pursuant to
the terms of Section II, Article 36.
(v) From January 1, 1997 through January 31, 1997 an
annual rate of $368,619.00, payable in monthly
installments of $30,718.25 (Base Annual Rent being
calculated at $14.50 per square foot of rentable area
per annum) subject to an annual increase pursuant to
the terms of Section II, Article 36.
(vi) From February 1, 1997 through the Expiration Date an
annual rate of $354,467.00 payable in monthly
installments of $29,538.92 (Base Annual Rent being
calculated at $14.50 per square foot of rentable area
per annum) subject to an annual increase pursuant to
the terms of Section II, Article 36.
IV. Delete paragraph O. Tenant's Percentage of the lease and replace with
the following:
-xv-
O. Tenant's Percentage:
(i) From Commencement Date through December 31, 1995: 27.3420%
(ii) From January 1, 1996 through December 31, 1996: 33.7629%
(iii) From January 1, 1997 through January 31, 1997: 35.6950%
(iv) From February 1, 1997 through December 31, 2001: 34.3246%
V. Additional Space
In addition to the above revisions to the Demised Premises,
Demised Premises Rentable Area, Base Annual Rent and Tenant's Percentage, Tenant
shall lease the following spaces under the following terms:
Suite 317
o Demised Premises: Suite 317 (Exhibit E)
o Demised Premises Rentable Area: 1,175 square feet
o Base Annual Rent: From January 1, 1996 through December 31, 1997,
an annual rate of $11,750 payable in monthly
installments of $979.17
o Term: January 1, 1996 through December 31, 1997
o Tenant's Percentage: 1.64982%
All of the terms and provisions of the Lease, as herein
amended and supplemented, are hereby ratified and confirmed, and shall remain in
full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this
Addendum to be duly executed as of the day and year first above written.
LANDLORD:
▇.▇. ▇▇▇▇▇▇▇▇▇▇, Inc., a Colorado
corporation
/s/ ▇.▇. ▇▇▇▇▇▇▇▇▇▇, III
By:______________________________
▇.▇. ▇▇▇▇▇▇▇▇▇▇, III, President
1/7/97
Date:__________________________
-xvi-
TENANT:
▇▇▇▇▇▇ ▇▇▇▇▇▇ Consulting, Inc., a District
of Columbia corporation
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
By:_______________________________
Director
Its:______________________________
12/20/96
Date:_____________________________
-xvii-
THIRD ADDENDUM
THIS ADDENDUM, made as of the 20th of January, 1997, is
between ▇.▇. ▇▇▇▇▇▇▇▇▇▇, Inc., a Colorado corporation ("Landlord") and ▇▇▇▇▇▇
Bailly Services, Inc., a State of Delaware corporation ("Tenant"). Landlord and
Tenant have executed that certain Canyon Center Office Lease dated December 14,
1994 and associated Addendum dated July 10, 1995 and Second Addendum Dated
December 12, 1996 (the "Lease") pertaining to certain space in the building
commonly known as Canyon Center and located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇. In the event of any conflict between the provisions of this Addendum and
the provisions of other portions of the Lease, the provisions of this Addendum
shall control. The capitalized terms used herein and not defined herein shall
have the same meanings used in other portions of the Lease. Landlord and Tenant
hereby agree that the Lease is amended and supplemented as follows:
I. Commencing January 27, 1997 Tenant shall lease on a month to month
basis suite 320 of Canyon ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇. ▇▇▇▇▇ ▇▇▇ is
approximately 418 rentable square feet (see Third Addendum Exhibit).
The Base Annual Rent rate for suite 320 shall be equal to the Base
Annual Rent rate paid by Tenant for Suite 317 in the Lease. Tenant
shall pay its proportionate share of Operating Costs for suite 320.
II. Either Tenant or Landlord may terminate this month to month lease by
providing 30 days prior written notice of termination.
III. Landlord shall paint suite 320 prior to Tenant occupancy of suite 320.
All of the terms and provisions of the Lease, as herein
amended and supplemented, are hereby ratified and confirmed, and shall remain in
full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this
Addendum to be duly executed as of the day first above written.
LANDLORD:
▇.▇. ▇▇▇▇▇▇▇▇▇▇, Inc., a Colorado corporation
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
By:___________________________________
Vice President
Date:_________________________________
-xvii-
TENANT:
▇▇▇▇▇▇ ▇▇▇▇▇▇ Consulting, Inc., a State of Delaware corporation
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
By:____________________________________________
Director
Its:___________________________________________
January 27, 1997
Dated:_________________________________________
-xix-
THIRD ADDENDUM EXHIBIT
----------------------
[▇▇▇▇▇ Note: Please see Appendix for description of omitted graphics]
THIRD/TOP FLOOR
Suite 320
Approximately ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Feet
Canyon Center Office Building
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇
-xx-
▇▇▇▇▇ APPENDIX
Exhibit A-1: Two floorplan diagrams
Exhibit A-2: Two floorplan diagrams
Exhibit B: Lot survey diagram
Addendum Exhibit A: Floorplan diagram
Addendum Exhibit B: Two floorplan diagrams
Addendum Exhibit C: Two floorplan diagrams
Third Addendum Exhibit: Floorplan diagram
-xxi-