EXHIBIT 10.9
OFFICE BUILDING LEASE
CORUM UNION INVESTORS LLC,
A COLORADO LIMITED LIABILITY COMPANY
(AS LANDLORD)
AND
GRYPHON GOLD CORPORATION, A NEVADA CORPORATION
(AS TENANT)
OFFICE BUILDING LEASE
THIS LEASE is made this 22nd day of June, 2005, by and between CORUM UNION
INVESTORS LLC, a Colorado limited liability company ("Landlord") GRYPHON GOLD
CORPORATION, a Nevada corporation ("Tenant").
WITNESSETH:
1. DEFINITIONS
In addition to other terms which are defined elsewhere in this Lease, the
terms defined in the following subparagraphs of this Paragraph 1 shall have the
meanings set forth in such subparagraph whenever used in this Lease with the
first letter of each word capitalized.
A. "BASE OPERATING EXPENSES" shall mean an amount equal to the actual
Operating Expenses for the Building Complex for the calendar year 2005.
B. "BASE RENT" shall mean annual rental for the Primary Lease Term of One
Hundred Twenty-Four Thousand Five Hundred Sixty Dollars ($124,560.00), payable
as follows:
TERM $ PER SQ. FT. SQ. FT. MONTHLY RENT ANNUAL RENT
---- ------------- ------- ------------ -----------
8-1-05 to 8-31-05 $ 0.00 1,384 $ 0.00 $ 0.00
9-1-05 to 8-31-06 $17.00 1,384 $1,960.67 $23,528.04
9-1-06 to 8-31-07 $17.50 1,384 $2,018.33 $24,219.96
9-1-07 to 8-31-08 $18.00 1,384 $2,076.00 $24,912.00
9-1-08 to 8-31-09 $18.50 1,384 $2,133.67 $25,604.04
9-1-09 to 8-31-10 $19.00 1,384 $2,191.33 $26,295.96
C. "BUILDING" shall mean that certain building and other improvements
located at 000 Xxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxx and the real property upon
which such building and improvements is located.
D. "BUILDING COMPLEX" shall mean the two (2) building complex comprised of
the Building and the Other Building, and which is commonly referred to as
300/390 Union.
E. "BUILDING STANDARD" shall mean building standard tenant finish items
prestocked or in place in the Premises which Landlord normally provides to
tenants (e.g., ceiling grid, sprinklers, HVAC and similar items).
F. "COMMON AREAS" shall mean those portions of the Building Complex which
are made available on a non-exclusive basis for general use in common of
tenants, their employees, agents and invitees. Landlord shall have the right
from time to time to change the location or
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character of and to make alterations of or additions to the Common Areas, and to
repair and reconstruct the Common Areas.
G. "LANDLORD'S NOTICE ADDRESS" shall mean 000 Xxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxxx, XX 00000, with a simultaneous copy to Xxxxxx Xxxxxx Greenhouse List &
Xxxxxxx LLP, Attn: Xxxxxx X. List, Esq., Granite Building, Second Floor, 1228
15th Street, Denver, Colorado or such other address as Landlord may from time to
time designate.
H. "LEASE YEAR" shall mean each twelve (12) month period beginning with the
date the Primary Lease Term commences, or any anniversary thereof, and ending on
the preceding date one (1) year later.
I. "OTHER BUILDING" shall mean that certain building and other improvements
located at 000 Xxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxx and the real property upon
which such building and improvements is located.
J. "PREMISES" shall mean those certain premises located on the third floor
of the Building known as Suite 360 comprised of approximately 1,384 rentable
square feet as depicted on EXHIBIT A attached hereto.
K. "PRIMARY LEASE TERM" The term of the Lease shall commence at 12:01 a.m.
on August 1, 2005, or upon the Premises becoming Ready for Occupancy (as defined
below), whichever is earlier, and shall terminate at 12:00 midnight on August
31, 2010, or a term of sixty-one (61) months.
L. "PROPERTY" shall mean that certain real property on which the Building
Complex is situated, located in Lakewood, Colorado and more particularly
described on Exhibit B attached hereto.
M. "SECURITY DEPOSIT" shall mean the sum of Four Thousand Four Hundred One
Dollars and 66/100 ($4,401.66).
N. "TENANT'S NOTICE ADDRESS" shall mean 000 Xxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxxx, Xxxxxxxx 00000.
O. "TENANT'S PERMITTED USE" shall mean business office use.
P. "TENANT'S PRO RATA SHARE" shall mean Point Eight Three Six Nine Percent
(0.8369%). In the event Tenant at any time during the Primary Lease Term, or any
extensions thereof, leases additional space in the Building Complex, Tenant's
Pro Rata Share shall be recomputed by dividing the total rentable square footage
of space then being leased by Tenant (including any additional space) by the
Rentable Area and the resulting percentage shall become Tenant's Pro Rata Share.
Q. "RENTABLE AREA" shall mean 165,368 square feet which is all rentable
space available for lease in the Building Complex. If there is a significant
change in the aggregate
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Rentable Area as a result of an addition to the Building Complex, partial
destruction thereof, modification to the design of the Building Complex, or
similar cause which causes a reduction or increase thereto on a permanent basis,
Landlord shall make such adjustment in the computations as shall be necessary to
provide for any such change. Tenant agrees that the Rentable Area may be
recalculated in the event that the Building Complex and/or the Premises is
remeasured. Notwithstanding such remeasurement, Tenant's Pro Rata Share and Base
Rent shall not be increased or decreased during the Primary Lease Term.
2. PREMISES
In consideration of the payment of rent and the keeping and performance of
the covenants and agreements by Tenant, as hereinafter set forth, Landlord
hereby leases and demises unto Tenant the Premises and Tenant leases the
Premises from Landlord, together with a non-exclusive right, subject to the
provisions hereof, to use all appurtenances thereto, including, but not limited
to, any plazas, Common Areas, or other areas on the Real Property (described
more particularly on EXHIBIT B) designated by Landlord for the exclusive or
non-exclusive use of the tenants of the Building.
3. RENT
Tenant shall begin to pay the Base Rent on the date which is thirty (30)
days after the Primary Lease Term commences and shall continue to pay on the
first day of each month thereafter during the term hereof. All rents shall be
paid in advance, without notice, set off, abatement, counterclaim, deduction or
diminution, at Landlord's Notice Address, or at such place as Landlord from time
to time designates in writing. In addition, Tenant shall pay to Landlord
Tenant's Pro Rata Share of increases in Operating Expenses as provided herein
and such other charges as are required by the terms of this Lease to be paid by
Tenant which shall be referred to herein as "Additional Rent." Landlord shall
have the same rights as to the Additional Rent as it has in the payment of Base
Rent.
4. COMPLETION OR REMODELING OF THE PREMISES
A. If the Premises have never been occupied and are not completed as of the
date this Lease is entered into and Landlord has agreed to complete the same to
any extent or the Premises have previously been occupied, but Landlord has
agreed to perform remodeling work thereon, provisions with respect to such
completion or remodeling will be set forth in a work letter to be executed
between Landlord and Tenant concurrently herewith (the "Work Letter") the form
of which is attached hereto as EXHIBIT C. Other than as set forth in the Work
Letter, Landlord shall have no obligations for the completion or remodeling of
the Premises, and Tenant shall accept the Premises in their "AS IS" condition on
the date the Primary Lease Term commences. If Landlord is to complete or remodel
the Premises and if the Premises are not "Ready for Occupancy," as hereafter
defined, on the date the Primary Lease Term is to begin, Tenant's obligation to
pay the Base Rent, its Pro Rata Share of increases in Operating Expenses, and
other sums owing hereunder shall not commence until the Premises are Ready for
Occupancy, provided, however, from the effective date hereof, other than the
payment of rent, this Lease, and all of the covenants, conditions, and
agreements herein contained
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shall be in full force and effect. The postponement of Tenant's obligation to
pay rent and other sums herein provided to be paid by Tenant for such period
prior to the delivery of the Premises to Tenant, Ready for Occupancy, as
hereinafter defined, shall be in full settlement of all claims which Tenant
might otherwise have by reason of the Premises not being Ready for Occupancy on
the date the Primary Lease Term is scheduled to begin Landlord shall use
commercially reasonable efforts to have the Premises Ready for Occupancy on or
before September 1, 2005. If Tenant takes possession of all or any part of the
Premises prior to the date the Premises are Ready for Occupancy for the purpose
of conducting its usual business therein, all terms and provisions of this Lease
shall apply, including the obligations for the payment of all rent, procurement
of required insurance and other amounts owing hereunder. "Ready for Occupancy"
as used herein shall mean the date that Landlord shall have substantially
completed the Premises or any remodeling work to be performed by Landlord, to
the extent agreed to in the Work Letter. The certificate of the architect (or
other representative of Landlord) in charge of supervising the completion or
remodeling of the Premises shall control conclusively the date upon which the
Premises are Ready for Occupancy, and the obligation to pay rent begins as
aforesaid. In addition to the above, if Landlord is delayed in delivering the
Premises to Tenant due to the failure of a prior occupant to vacate the same,
then the obligation for the payment of rent and the commencement of the term
hereof shall also be postponed, as hereinabove set forth, and such postponement
shall be in full settlement of all claims which Tenant may otherwise have by
reason of such delay of delivery.
B. If the commencement of the Primary Lease Term is delayed pursuant to
subparagraph A above, and such commencement date would occur on other than the
first day of the month, the commencement date of the Primary Lease Term shall be
further delayed until the first day of the following month and Tenant shall pay
proportionate rent at the same monthly rate set forth herein (also in advance)
for such partial month. In the event said commencement date is so delayed, the
expiration of the term hereof shall be extended so that the Primary Lease Term
will continue for the full period set forth in Paragraph 1 hereof. As soon as
the Primary Lease Term commences, Landlord and Tenant shall execute an addendum
to this Lease, if requested by either party, setting forth the exact date on
which the Primary Lease Term commenced and the expiration date of the Primary
Lease Term.
C. If Tenant desires to take possession prior to the Primary Lease Term,
Tenant shall obtain the written consent of Landlord. If Tenant takes possession
of the Premises prior to the Primary Lease Term, Tenant shall pay Landlord a
pro-rata amount of rent for the period from the date Tenant so takes possession
of the Premises to the first day of the Primary Lease Term, calculated on a
daily basis, and all provisions of this Lease shall be effective as of the date
Tenant so takes possession. All other terms of this Lease, however (including
but not limited to the obligations to pay Tenant's Pro Rata Share of Base
Operating Expenses and to carry the insurance required in the Lease) shall be in
effect during such period.
5. OPERATING EXPENSES
A. DEFINITIONS. In addition to terms hereinabove defined, the following
terms shall have the following meanings with respect to the provisions of this
Lease:
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(1) It is understood and acknowledged by Tenant that Landlord has not
made any representation or given Tenant any assurances that the Base Operating
Expenses will equal or approximate the actual Operating Expenses for any Lease
Year during the Primary Lease Term, or any extension thereof, including the
first Lease Year.
(2) If the Lease Year is not concurrent with the calendar year,
Landlord shall, at any time during the Primary Lease Term, or any extensions
thereof, make all adjustments provided for in this Paragraph 5 on a calendar
year basis with an appropriate proration for the Lease Year in which such
conversion is made and in which the term ends and all references in this
Paragraph 5 only to "Lease Year" shall thereafter be deemed to refer to
"calendar year."
(3) "Operating Expenses" shall mean all operating expenses of any kind
or nature which are necessary, ordinary, or customarily incurred in connection
with the operation and maintenance of the Building Complex as determined by
Landlord on an accrual basis. Operating Expenses shall include, but not be
limited to:
(a) All real property taxes and assessments levied against the
Building Complex by any governmental or quasi-governmental authority. The
foregoing shall include any taxes, assessments, surcharges, or service or other
fees of a nature not presently in effect which shall hereafter be levied on the
Building Complex as a result of the use, ownership or operation of the Building
Complex or for any other reason, whether in lieu of or in addition to, any
current real estate taxes and assessments; provided, however, any taxes which
shall be levied on the rentals of the Building Complex shall be determined as if
the Building Complex were Landlord's only property and, provided further, that
in no event shall the term "taxes or assessments," as used herein, include any
net federal or state income taxes levied or assessed on Landlord, unless such
taxes are a specific substitute for real property taxes. Such term shall,
however, include gross taxes on rentals. Expenses incurred by Landlord for tax
consultants and in contesting the amount or validity of any such taxes or
assessments together with any resulting tax or assessment reductions shall be
included in such computations (all of the foregoing are collectively referred to
herein as the "Taxes"). "Assessment" shall include so-called special
assessments, license tax, business license fee, business license tax, commercial
rental tax, levy, charge, penalty or tax, imposed by any authority having the
direct power to tax, including any city, county, state or federal government, or
any school, agricultural, lighting, water, drainage or other improvement or
special district thereof, against the Premises, the Building, the Other Building
or Building Complex or any legal or equitable interest of Landlord therein. For
the purposes of this Lease, any special assessments shall be deemed payable in
such number of installments as is permitted by law, whether or not actually so
paid.
Notwithstanding anything to the contrary contained herein, Tenant shall pay
before delinquency any and all taxes, assessments, license taxes and other
charges levied, assessed or imposed and which become payable during the Primary
Lease Term, or any extensions thereof, upon Tenant's operations at, occupancy
of, or conduct of business at the Premises or upon equipment, furniture,
appliances, trade fixtures and other personal property of any kind installed or
located at the Premises. If Tenant shall install or cause Landlord to install
special tenant improvements such as, but not limited to, private elevators,
escalators, interior staircases or other fixtures and fittings which caused an
increase in the assessed value of the Building Complex, then Tenant shall also
pay as Additional Rent all of the taxes reasonably allocable to such
extraordinary improvements. If the
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taxing authorities fail to render a separate tax xxxx with respect to such
improvements, Landlord shall allocate a reasonable portion of such taxes on the
Building Complex to such improvements.
(b) Costs of supplies, including, but not limited to, the cost of
relamping all Building Standard tenant lighting as the same may be required from
time to time;
(c) Costs incurred in connection with obtaining and providing
energy for the Building Complex, including, but not limited to, costs of natural
gas, electricity, and fuel oils or any other energy sources;
(d) Costs of water and sanitary and storm drainage services;
(e) Costs of janitorial and security services;
(f) Costs of general maintenance and repairs, including costs
under HVAC and other mechanical maintenance contracts, and repairs and
replacements of equipment used in connection with such maintenance and repair
work;
(g) Costs of maintenance of landscaping;
(h) Insurance premiums, including fire and all-risk coverage,
together with loss of rent endorsement; the part of any claim required to be
paid under the deductible portion of any insurance policy carried by Landlord in
connection with the Building Complex (where Landlord is unable to obtain
insurance without such deductible from a major insurance carrier at reasonable
rates), public liability insurance; and any other insurance carried by Landlord
on the Building Complex or any component parts thereof (all such insurance shall
be in such amounts as may be required by any Mortgagee [as defined in
subparagraph 25.H hereof] or as Landlord may reasonably determine);
(i) Labor costs, including wages and other payments, costs to
Landlord of workmen's compensation and disability insurance, payroll taxes,
welfare, fringe benefits, and all legal fees and other costs or expenses
incurred in resolving any labor dispute;
(j) Professional building management fees;
(k) Legal, inspection, and other consultation fees (including
fees charged by consultants retained by Landlord for services that are designed
to produce a reduction in Operating Expenses or to reasonably improve the
operation, maintenance or state of repair of the Building Complex) incurred in
the ordinary course of operating the Building Complex; and costs incurred by
Landlord in engaging experts or other consultants to assist in making the
computations required hereunder;
(l) The costs of capital improvements and structural repairs and
replacements made in or to the Building Complex in order to conform to changes
subsequent to the Lease Commencement Date in any applicable laws, ordinances,
rules, regulations, or orders of any governmental or quasi-governmental
authority having jurisdiction over the Building Complex
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(herein "Required Capital Improvements"); the costs of any capital improvements
and structural repairs and replacements designed primarily to reduce Operating
Expenses (herein "Cost Savings Improvements"). The expenditures for Required
Capital Improvements and Cost Savings Improvements shall be amortized at a
market rate of return over the useful life of such capital improvement or
structural repair or replacement (as determined by Landlord) provided that the
amortized amount of any Cost Savings Improvement shall be limited in any year to
the reduction in Operating Expenses as a result thereof.
(4) "Operating Expenses" shall not include: (i) costs of work,
including painting and decorating and tenant change work, which Landlord
performs for any tenant or in any tenant's space in the Building or Other
Building other than work of kind and scope which Landlord would be obligated to
furnish to all tenants; (ii) costs of repairs or other work occasioned by fire,
windstorm or other insured casualty to the extent of insurance proceeds
received; (iii) leasing commissions, advertising expenses, and other costs
incurred in leasing space in the Building or the Other Building; (iv) costs of
repairs or rebuilding necessitated by condemnation; (v) any interest on borrowed
money or debt amortization, except as specifically set forth above; (vi)
depreciation on the Building and the Other Building; or (vii) any other cost,
charge or expense not included in Section 5(A)(3) above.
B. If any increase occurs in Operating Expenses during any Lease Year
during the Primary Lease Term, or any extension thereof, including the first
Lease Year, in excess of the Base Operating Expenses, Tenant shall pay to
Landlord Tenant's Pro Rata Share of the amount of such increase. All amounts
required to be paid by Tenant as a result of any such increase shall be paid
within thirty (30) days following billing therefor by Landlord. In addition to
the foregoing, it is agreed that, during each Lease Year beginning with the
first month of the second Lease Year and continuing each month thereafter during
the Primary Lease Term, or any extension thereof, Tenant shall pay to Landlord,
at the same time as the Base Rent is paid, an amount equal to one-twelfth (1/12)
of Landlord's estimate (as determined by Landlord) of Tenant's Pro Rata Share of
any projected increases in the Operating Expenses for the particular Lease Year
in excess of the Base Operating Expenses, with a final adjustment to be made
between the parties at a later date for said Lease Year in accordance with the
procedures set forth herein.
(1) As soon as practicable following the end of each Lease Year during
the Primary Lease Term, or any extension thereof, including the first Lease
Year, Landlord shall submit to Tenant a statement prepared by a representative
of Landlord setting forth the exact amount of Tenant's Pro Rata Share of the
increase, if any, of the Operating Expenses for the Lease Year just completed
over the Base Operating Expenses. Beginning with said statement for the second
Lease Year, it shall also set forth the difference, if any, between Tenant's
actual Pro Rata Share of the increase in Operating Expenses for such Lease Year
just completed and the estimated amount of Tenant's Pro Rata Share of such
increase on the basis of which Tenant's monthly rent was computed for such
particular Lease Year. Each such statement shall also set forth the projected
increase, if any, in Operating Expenses for the new Lease Year over the Base
Operating Expenses and the corresponding increase or decrease in Tenant's
monthly rent for such new Lease Year above or below the rental paid by Tenant
for the immediately preceding Lease Year computed in accordance with the
foregoing provisions; provided, however, in no event will the rental to be paid
by Tenant hereunder ever be less than the Base Rent as it is to be adjusted for
such Lease Year.
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(2) To the extent that Tenant's Pro Rata Share of the increase in
Operating Expenses for the period covered by such statement is different from
the estimated amount upon which Tenant paid rent during the Lease Year just
completed (or for the first Lease Year reflects an increase over the Base
Operating Expenses), Tenant shall pay to Landlord the difference within thirty
(30) days following receipt by Tenant of such statement from Landlord or receive
a credit on the next months' rental owing hereunder, as the case may be. Until
Tenant receives such statement, Tenant's monthly rent for the new Lease Year
shall continue to be paid at the rate paid for the particular Lease Year just
completed, but Tenant shall commence payment to Landlord of the monthly
installments of rent on the basis of said statement beginning on the first day
of the month following the month in which Tenant receives such statement.
Moreover, Tenant shall pay to Landlord or deduct from the rent, as the case may
be, on the date required for the first payment of rent, as adjusted, the
difference, if any, between the monthly installments of rent so adjusted for the
new Lease Year and the monthly installments of rent actually paid during the new
Lease Year.
(3) If, during any particular Lease Year, there is a change in the
information on which Landlord based the estimate upon which Tenant is then
making its estimated rental payments so that such estimate furnished to Tenant
is no longer accurate, Landlord shall be permitted to revise such estimate by
notifying Tenant and there shall be such adjustments made in the monthly rental
on the first day of the month following the serving of such statement on Tenant
as shall be necessary by either increasing or decreasing, as the case may be,
the amount of monthly rent then being paid by Tenant for the balance of the
Lease Year (but in no event shall any such decrease result in a reduction of the
rent below the Base Rent and all amounts of Additional Rent, as adjusted for
such Lease Year), as well as an appropriate adjustment in cash based upon the
amount theretofore paid by Tenant during such particular Lease Year pursuant to
the prior estimate.
C. Landlord's and Tenant's responsibilities with respect to the Operating
Expense adjustment described herein shall survive the expiration or early
termination of this Lease or the early termination of Tenant's right to occupy
the Premises, and Landlord shall have the right to retain the Security Deposit,
or so much thereof as it deems necessary, to secure such payment attributable to
the year in which this Lease terminates. If the Lease is in effect for less than
a full calendar year during the last Lease Year of the term, Tenant's Pro Rata
Share for such partial year shall be calculated by proportionately reducing the
Base Operating Expenses to reflect the number of months in such year during
which the Lease was in effect (the "Adjusted Base Operating Expenses"). The
Adjusted Base Operating Expenses shall then be compared with the actual
Operating Expenses for the said partial year to determine the amount, if any, of
any increase in the actual Operating Expenses for such partial year over the
Adjusted Base Operating Expenses.
D. If Tenant shall dispute the amount of an adjustment submitted by
Landlord or the proposed estimated increase or decrease on the basis of which
Tenant's rent is to be adjusted as provided in subparagraph B above, Tenant
shall give Landlord written notice of such dispute within thirty (30) days after
Landlord advises Tenant of such adjustment or proposed increase or decrease. If
Tenant fails to give Landlord such notice within such time, Tenant shall be
deemed to have waived its right to dispute the amounts so determined. If Tenant
timely objects, Tenant shall have the right to engage its own certified public
accountants ("Tenant's Accountants") for the purpose of verifying the accuracy
of the statement complained of or the reasonableness of the estimated increase
or decrease. If Tenant's Accountants determine that an error has been made,
Landlord and Tenant's
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Accountants shall endeavor to agree upon the matter, failing which the parties
shall settle the dispute by judicial action or in such other manner as they
agree. All costs incurred by Tenant in obtaining its own accountants shall be
paid for by Tenant unless Tenant's Accountants disclose an error, acknowledged
by Landlord (or found to have occurred in a judicial action), of more than five
percent (5%) in the computation of the total amount of Operating Expenses as set
forth in the statement submitted by Landlord which is challenged, in which event
Landlord shall pay the reasonable costs incurred by Tenant in obtaining such
audit (excluding any charges billed on a contingency fee basis). Notwithstanding
the pendency of any dispute over any particular statement, Tenant shall continue
to pay Landlord the amount of the adjusted monthly installments of rent
determined by Landlord until the adjustment has been determined to be incorrect
as aforesaid. A delay by Landlord in submitting any statement contemplated
herein for any Lease Year shall not affect the provisions of this Paragraph 5 or
constitute a waiver of Landlord's rights as set forth herein for said Lease Year
or any subsequent Lease Years during the Primary Lease Term and any extensions
thereof.
E. Notwithstanding anything contained herein to the contrary, if any lease
entered into by Landlord with any tenant in the Building or the Other Building
provides for a separate basis of computation for any Operating Expenses with
respect to its leased premises, then, to the extent that Landlord determines
that an adjustment should be made in making the computations herein provided
for, Landlord shall be permitted to modify the computation of Base Operating
Expenses, Rentable Area, and Operating Expenses for a particular Lease Year, in
order to eliminate or otherwise modify any such expenses which are paid for in
whole or in part by such tenant. Furthermore, in making any computations
contemplated hereby, Landlord shall also be permitted to make such adjustments
and modifications to the provisions of this Paragraph 5 as shall be reasonably
necessary to achieve the intention of the parties hereto.
F. In the event the Rentable Area is not fully occupied during any
particular Lease Year, Landlord may adjust those Operating Expenses which are
affected by the occupancy rates for the particular Lease Year, or portion
thereof, as the case may be, to reflect an occupancy of not less than
ninety-five percent (95%) of all such Rentable Area.
6. SERVICES
A. Subject to the provisions of subparagraph D below, Landlord, without
charge, except as provided herein, and in accordance with standards from time to
time prevailing for the Building agrees: (1) to furnish running water at those
points of supply for general use of tenants of the Building; (2) to furnish to
public areas of the Building heated or cooled air (as applicable), electrical
current, janitorial services, and maintenance to the extent Landlord deems
necessary; (3) to furnish during Ordinary Business Hours, as hereinafter
defined, such heated or cooled air to the Premises as may, in the judgment of
Landlord, be reasonably required for the comfortable use and occupancy of the
Premises, provided that the recommendations of Landlord's engineer regarding
occupancy and use of the Premises are complied with by Tenant and, with respect
to cooled air, provided the same is used only for standard office use; (4) to
furnish, subject to availability and capacity of building systems, unfiltered,
treated cooling tower water for use in Tenant's packaged HVAC systems, provided
that such systems are equipped with Landlord-approved strainers, pumping systems
and controls, and that such systems are connected only after approval of
Landlord's engineer; (5) to
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provide, during Ordinary Business Hours, the general use of passenger elevators
for ingress and egress to and from the Premises (at least one such elevator
shall be available at all times, except in the case of emergencies or repair);
(6) to provide janitorial services for the Premises (including such window
washing of the outside of exterior windows as may, in the judgment of Landlord,
be reasonably required), such janitorial services shall be provided after
Ordinary Business Hours on Monday through Friday only, except for Legal
Holidays; and (7) to cause electric current to be supplied to the Premises for
all of Tenant's Standard Electrical Usage, as hereinafter defined. "Tenant's
Standard Electrical Usage", as used herein, shall mean and refer to electrical
usage for standard lighting and ordinary office usage including desk top office
machines based upon 0.00075 KVA (0.75 Watt) per rentable square foot of the
Premises. "Ordinary Business Hours", as used herein, shall mean and refer to
6:00 a.m. to 7:00 p.m. Monday through Friday and 8:00 a.m. to 1:00 p.m. on
Saturdays, Legal Holidays excepted. "Legal Holidays", as used herein, shall mean
New Year's Day, Presidents' Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day, Christmas Day, and such other national holidays as may
hereafter be established by the United States Government.
B. "Excess Usage" shall be defined as any service usage (1) during other
than Ordinary Business Hours; or (2) in an amount in excess of Tenant's Standard
Electrical Usage; or (3) for "Special Equipment"; or (4) for standard HVAC
services during other than Ordinary Business Hours. "Special Equipment", as used
herein, shall mean (i) any equipment consuming more than 0.5 kilowatts as rated
capacity, (ii) any equipment requiring a voltage other than 120 volts, single
phase, or (iii) equipment that requires the use of self-contained HVAC units.
Tenant shall reimburse Landlord for reasonable costs incurred by Landlord in
providing services for Excess Usage. Such reasonable costs will include
Landlord's costs for materials, additional wear and tear on equipment,
utilities, and labor (including fringe and overhead costs). Computation of
Landlord's cost for providing such services will be made by Landlord's engineer,
based on his engineering survey of Tenant's Excess Usage. Tenant shall also
reimburse Landlord for all costs of supplementing the Building HVAC System
and/or extending or supplementing any electrical service, as Landlord may
determine is necessary, as a result of Tenant's Excess Usage. Prior to
installation or use by Tenant of any equipment which will result in Excess Usage
or operation of the Premises for extended hours on an ongoing basis, Tenant
shall notify Landlord of such intended installation or use and obtain Landlord's
consent therefor. In addition to the foregoing, Landlord has the right, at
Tenant's sole cost and expense, to install a check meter and/or flow meter to
assist in determining the cost of Tenant's Excess Usage. If Tenant desires
electric current and/or heated or cooled air to the Premises during periods
other than Ordinary Business Hours, Landlord will use reasonable efforts to
supply the same, but at the expense of Tenant, at Landlord's standard rate as
established by it, from time to time, for such services, including additional
costs or expenses associated with providing such services, for example, without
limitation, additional labor costs. Not less than twenty-four (24) hours prior
notice shall be given by Tenant to Landlord of Tenant's desire for such
services.
C. If Tenant requires janitorial services other than those required to be
provided to other tenants of the Building Complex generally, Tenant shall
separately pay for such services monthly upon xxxxxxxx by Landlord, or Tenant
shall, at Landlord's option, separately contract for such services with the same
company furnishing janitorial services to Landlord.
Page 11
D. Tenant agrees that Landlord shall not be liable for failure to supply
any such heating, air conditioning, elevator, electrical, janitorial, lighting
or other services during any period when Landlord uses reasonable diligence to
supply such services, or during any period Landlord is required to reduce or
curtail such services pursuant to any applicable laws, rules, or regulations,
including regulations of any utility now or hereafter in force or effect, it
being understood that Landlord may discontinue, reduce, or curtail such
services, or any of them (either temporarily or permanently), at such times as
it may be necessary by reason of accident, repairs, alterations, improvements,
strikes, lockouts, riots, acts of God, terrorism, application of applicable
laws, statutes, or rules and regulations or due to any other happening beyond
the control of Landlord. In the event of any such interruption, reduction, or
discontinuance of Landlord's services (either temporary or permanent), Landlord
shall not be liable for damages to person or property as a result thereof, nor
shall the occurrence of any such event in any way be construed as an eviction of
Tenant; or cause or permit an abatement, reduction or setoff of rent, or operate
to release Tenant from any of Tenant's obligations hereunder.
E. Tenant agrees to notify promptly the Landlord or its representative of
any accidents or defects in the Building Complex of which Tenant becomes aware,
including defects in pipes, electric wiring, and HVAC equipment. In addition,
Tenant shall provide Landlord with prompt notification of any matter or
condition which may cause injury or damage to the Building Complex or any person
or property therein.
7. QUIET ENJOYMENT
Landlord agrees to warrant and defend Tenant in the quiet enjoyment and
possession of the Premises during the term of this Lease so long as Tenant
complies with the provisions hereof.
8. DEPOSIT
It is agreed that, concurrently with the execution of this Lease, Tenant
has deposited with Landlord the Security Deposit together with the second
month's Base Rent, the receipt of which is hereby acknowledged, as security for
the payment by Tenant of all rent and other amounts herein agreed to be paid and
for the faithful performance of all the terms, conditions, and covenants of this
Lease. If, at any time during the term of this Lease, Tenant shall be in default
in the performance of any provision of this Lease, Landlord shall have the
right, but shall not be required, to use said deposit, or so much thereof as
necessary, in payment of any rent or other amount in default as aforesaid, in
reimbursement of any expense incurred by Landlord, and in payment of any damages
incurred by Landlord by reason of Tenant's default. In such event, Tenant shall,
on written demand of Landlord, forthwith remit to Landlord a sufficient amount
to restore said deposit to an amount equal to: (i) the Base Rent as adjusted in
accordance with Paragraph 3 if Tenant's default occurs thereafter, plus the
monthly amount of Tenant's Pro Rata Share of increases in Operating Expenses
then payable by Tenant pursuant to subparagraph 5.B hereof, times (ii) the
number of months' worth of Base Rent represented by the initial deposit. In the
event said deposit has not been utilized as aforesaid, said deposit, or as much
thereof as has not been utilized for such purposes, shall be refunded to Tenant
or to whomever is then the holder of Tenant's interest in this Lease, without
Page 12
interest, within sixty (60) days after the termination or expiration of the
Lease or surrender and acceptance of the Premises, whichever occurs last.
Landlord shall have the right to commingle said deposit with other funds of
Landlord without liability for interest at all times during the term of this
Lease. Landlord may deliver the funds deposited herein by Tenant to the
purchaser of Landlord's interest in the Premises in the event such interest be
sold and advise Tenant by regular mail of the name and address of such
transferee and, thereupon, Landlord shall be discharged from further liability
with respect to such deposit. Tenant agrees that if a Mortgagee (as defined
herein) succeeds to Landlord's interest in the Premises by reason of foreclosure
or deed in lieu of foreclosure, Tenant shall have no claim against said
Mortgagee for the Security Deposit, or any portion thereof, unless such
Mortgagee has actually received the same from Landlord. If claims of Landlord
exceed said deposit, Tenant shall remain liable for the balance of such claims.
Tenant shall not assign or encumber or attempt to assign or encumber the
Security Deposit provided for herein, except that Tenant may assign such deposit
in the event of a permitted assignment of Tenant's entire interest in this
Lease.
9. USE
Tenant covenants and agrees to occupy and use the Premises for the
Permitted Use and for no other purpose, and to use them in a careful, safe, and
proper manner; to pay on demand for any damage to the Premises caused by misuse
or abuse thereof by Tenant, Tenant's agents or employees, or of any other person
entering upon the Premises under express or implied invitation of Tenant, not to
use or permit the Premises to be used for any purposes prohibited by the laws,
codes, rules, and regulations of the United States, the State of Colorado, or of
any applicable municipality or quasi-governmental entity. Tenant shall not
commit waste or suffer or permit waste to be committed or permit any nuisance on
or in the Premises. In the event that any officials shall hereafter at anytime
contend or declare by notice, violation, order or in any other manner whatsoever
that the Premises are used for a purpose which is a violation of any permit,
certificate of occupancy, statute, ordinance or other requirement of law
applicable to the Building Complex or the Premises, Tenant shall, upon five (5)
days written notice from Landlord, immediately discontinue such use of the
Premises. Tenant, at its sole expense, shall comply with all laws, orders and
regulations of federal, state, county and municipal authorities and with any
direction of any public office or officers, pursuant to law which shall impose
any violation or duty upon Landlord or Tenant with respect to the Premises, or
the use or occupation thereof.
Tenant shall not use or suffer or permit any other firm or person to use
the Premises for any hazardous purpose or in any manner that will violate,
suspend, void, make inoperative or increase the rate of any policies of
insurance of any kind at any time carried by Landlord upon the Premises or the
Building Complex or the fixtures and property therein. Any increase in the cost
of any insurance carried by Landlord attributable to Tenant's activities on the
Premises or Tenant's failure to perform and observe Tenant's obligations and
covenants hereunder shall be borne by Tenant and payable to Landlord from time
to time on demand.
10. ALTERATIONS AND REENTRY BY LANDLORD
Page 13
A. Unless otherwise expressly provided herein, Landlord shall not be
required to make any improvements or repairs of any kind or character to the
Premises during the Primary Lease Term, or any extension thereof, except: (i)
such repairs to HVAC, mechanical and electrical systems in the Premises (to the
extent such systems are Building Standard) as may be deemed necessary by
Landlord for normal maintenance operations of the Building Complex; and (ii)
upkeep, maintenance, and repairs to all Common Areas in the Building Complex so
long as the need for any such repair is not the result of the negligence or
willful misconduct of Tenant, its agents, invitees or employees.
B. Tenant covenants and agrees to permit Landlord at any time to enter the
Premises to examine and inspect the same, to show the Premises to prospective
purchasers, mortgagees or tenants, or, if Landlord so elects, to perform any
obligations of Tenant hereunder which Tenant shall fail to perform or to perform
such cleaning, maintenance, janitorial services, repairs, additions, or
alterations as Landlord may deem necessary or proper for the safety,
improvement, or preservation of the Premises or of other portions of the
Building Complex or as may be required by governmental authorities through any
code, rule, regulation, ordinance, and/or law. Any such reentry shall not
constitute an eviction or entitle Tenant to abatement of rent. Furthermore,
Landlord shall at all times have the right at Landlord's election to make such
alterations or changes in other portions of the Building Complex as Landlord may
from time to time deem necessary and desirable as long as such alterations and
changes do not unreasonably interfere with Tenant's intended use and occupancy
of the Premises. Landlord may use one or more of the street entrances to the
Building Complex and such public areas thereof as may be necessary, in
Landlord's determination to complete such alterations or changes.
11. ALTERATIONS AND REPAIRS BY TENANT
A. Tenant covenants and agrees not to make any alterations in, or additions
to, the Premises (subsequent to the work in the Premises performed by Landlord
pursuant to the Work Letter), including installation of any equipment or
machinery therein which requires modification of or additions to any existing
electrical outlet or which would increase Tenant's usage of electricity beyond
Tenant's Standard Electrical Usage (all such alterations are referred to herein
collectively as "Alterations") without in each such instance first obtaining the
written consent of Landlord. Tenant, at its expense, shall pay all engineering
and design costs incurred by Landlord attributable to the Alterations and obtain
all necessary governmental permits and certificates required for any Alterations
to which Landlord has consented, and shall cause such Alterations to be
completed in compliance therewith and with all applicable laws and requirements
of public authorities and all applicable requirements of Landlord's insurance
carriers. All Alterations which Tenant is permitted to make shall be performed
in a good and workmanlike manner, using new materials and equipment at least
equal in quality to the original installations in the Premises. All repair and
maintenance work required to be performed by Tenant pursuant to the provisions
of subparagraph B below and any Alterations permitted by Landlord pursuant to
the provisions hereof, including, but not limited to, any installations desired
by Tenant for Tenant's telegraphic, telephonic or electrical connections, shall
be done at Tenant's expense by Landlord's employees or, with Landlord's consent,
by persons requested by Tenant and authorized in writing by Landlord, provided,
however, if such work is performed by persons who are not employees of Landlord,
Tenant shall pay to Landlord, upon receipt of billing therefor, the costs for
supervision and control of such persons as Landlord may
Page 14
determine to be necessary. If Landlord authorizes persons requested by Tenant to
perform such work, prior to the commencement of any such work, on request,
Tenant shall deliver to Landlord certificates issued by insurance companies
qualified to do business in the State of Colorado, evidencing that workmen's
compensation, public liability insurance, and property damage insurance, all in
the amounts, 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. All such policies shall name Landlord and any
Mortgagee, (as defined herein) as an additional insured. Each such certificate
shall provide that the same may not be cancelled or modified without ten (10)
days prior written notice to Landlord and such Mortgagee. Further, Landlord and
such Mortgagee shall have the right to post notices in the Premises in locations
which will be visible by parties performing any work on the Premises stating
that Landlord is not responsible for the payment for such work and setting forth
such other information as Landlord may deem necessary. Alterations, repair, and
maintenance work shall be performed in a manner which will not unreasonably
interfere with, delay, or impose any additional expense upon Landlord in the
maintenance or operation of the Building Complex or upon other tenants use of
their premises.
B. Tenant shall keep the Premises in as good order, condition, and repair
and in an orderly state, as when they were entered upon, loss by fire or other
casualty or ordinary wear excepted. Subject to Landlord's obligation to make
repairs in the event of certain casualties, as set forth in Paragraph 18 below,
Landlord shall have no obligation for the repair or replacement of any portion
of the interior of the Premises which is damaged or wears out during the term
hereof regardless of the cause therefor, including but not limited to,
carpeting, draperies, window coverings, wall coverings, painting or any of
Tenant's property or betterments in the Premises.
C. All Alterations and permanent fixtures installed in the Premises,
including, by way of illustration and not by limitation, all partitions,
paneling, carpeting, drapes or other window coverings, and light fixtures (but
not including movable office furniture not attached to the Building Complex),
shall be deemed a part of the real estate and the property of Landlord and shall
remain upon and be surrendered with the Premises as a part thereof without
molestation, disturbance, or injury at the end of the Primary Lease Term or any
extension thereof, whether by lapse of time or otherwise, or upon the
termination of Tenant's right to occupy the Premises.
12. MECHANICS' LIENS
Tenant shall pay or cause to be paid all costs for work done by Tenant or
caused to be done by Tenant on the Premises (including work performed by
Landlord or its contractor at Tenant's request following the commencement of the
Primary Lease Term) of a character which will or may result in liens on
Landlord's interest therein, and Tenant will keep the Premises free and clear of
all mechanics' liens and other liens on account of work done for Tenant or
persons claiming under it, excluding any Tenant Finish Work performed by
Landlord pursuant to the Work Letter. Tenant hereby agrees to indemnify, defend,
and save Landlord harmless of and from all liability, loss, damage, costs, or
expenses, including attorneys' fees, on account of any claims of any nature
whatsoever including claims or liens of laborers or materialmen or others for
work performed or claimed to be performed for or materials or supplies furnished
to Tenant or persons claiming under
Page 15
Tenant. Should Tenant receive any notice of intent to file a lien, Tenant shall
promptly deliver a copy of such notice to Landlord and shall promptly resolve
the claim. Should any liens be filed or recorded against the Premises or any
action affecting the title thereto be commenced as a result of such work (which
term includes the supplying of materials), Tenant shall cause such liens to be
removed of record within five (5) days after the filing or recording of such
liens. If Tenant desires to contest any claim of lien, Tenant shall furnish to
Landlord adequate security of at least one hundred fifty percent (150%) of the
amount of the claim, plus estimated costs and interest, or, at Tenant's option,
file a bond with the appropriate court and obtain a release of the lien pursuant
to Section 00-00-000, C.R.S. If a final judgment establishing the validity or
existence of any lien for any amount is entered, Tenant shall pay and satisfy
the same at once. If Tenant shall be in default in paying any charge for which a
mechanic's lien or suit to foreclose the lien has been recorded or filed and
shall not have given Landlord security as aforesaid, Landlord may (but without
being required to do so) pay such lien or claim and any costs, and the amount so
paid, together with reasonable attorneys' fees incurred in connection therewith,
shall be immediately due from Tenant to Landlord.
13. SUBLETTING AND ASSIGNMENT
A. Tenant shall not assign this Lease or any interest therein, or sublet
all or any part of the Premises, or suffer or permit the Premises or any part
thereof to be occupied by others, by operation of law or otherwise, without the
prior written consent of Landlord in each instance, which consent, as to any
subletting of less than twenty-five percent (25%) of the Premises, will not be
unreasonably withheld provided that: (i) Tenant has complied with the provision
of subparagraph D below and Landlord has declined to exercise its rights
thereunder; (ii) the proposed subtenant or assignee is engaged in a business and
the Premises will be used in a manner which is in keeping with the then
standards of the Building; (iii) the proposed subtenant or assignee is a
reputable party of reasonable financial worth in light of the responsibilities
involved and Tenant shall have provided Landlord with reasonable proof thereof;
and, (iv) Tenant is not in default hereunder at the time it makes its request
for such consent or at the time of the commencement of the proposed sublease or
assignment.
B. If this Lease or any interest herein is assigned, or if the Premises or
any part thereof be sublet or occupied by anybody other than Tenant, with or
without the consent of Landlord having first been obtained, Landlord may, after
default by Tenant, collect rent from the assignee, subtenant or occupant, and
apply the net amount collected to the Base Rent and other sums due hereunder,
but no collection shall be deemed a waiver of the provisions of this paragraph,
or the acceptance of the assignee, subtenant or occupants as the tenant hereof,
or a release of Tenant from the further performance by Tenant of covenants on
the part of Tenant contained in this Lease. Acceptance of rent by Landlord from
anyone other than Tenant shall not be construed as a waiver by Landlord, nor as
a release of Tenant, but the same shall be taken to be a payment on account of
Tenant. The consent by Landlord to an assignment, subletting or occupancy
arrangement shall not relieve Tenant from primary liability hereunder or from
the obligation to obtain the express consent in writing of Landlord to any
further assignment, subletting or occupancy arrangement. Landlord's consent to
any requested sublease or assignment shall not waive Landlord's right to refuse
to consent to any other such request. If Tenant collects any rental or other
amounts from a subtenant or assignee in excess of
Page 16
the Base Rent and Tenant's Pro Rata Share of increases in Operating Expenses,
Tenant shall pay the Landlord, as and when Tenant receives the same, all such
excess amounts received by Tenant.
C. Notwithstanding anything contained hereinabove in this Paragraph 13 to
the contrary, in the event Tenant requests Landlord's consent to sublet
twenty-five percent (25%) or more of the Premises or to assign twenty-five
percent (25%) or more of its interest in this Lease, Landlord shall have the
right to: (i) consent to such sublease or Assignment in its sole discretion;
(ii) refuse to grant such consent in Landlord's sole discretion; or (iii) refuse
to grant such consent and terminate this Lease as to the portion of the Premises
with respect to which such consent was requested, provided, however, if Landlord
refuses to grant such consent and elects to terminate the Lease as to such
portion of the Premises, Tenant shall have the right within fifteen (15) days
after notice of Landlord's exercise of its right to terminate to withdraw
Tenant's request for such consent and remain in possession of the Premises under
the terms and conditions hereof. In the event the Lease is terminated as set
forth herein, such termination shall be effective as of the date set forth in a
written notice from Landlord to Tenant, which date shall in no event be more
than sixty (60) days following such notice. In any event, if any amounts payable
by the assignee or subtenant with respect to its occupancy of all or a portion
of the Premises are in excess of the amounts payable by Tenant to Landlord
hereunder, said amounts shall be immediately due and payable to the Landlord as
additional rent.
D. Tenant hereby agrees that in the event it desires to sublease all or any
portion of the Premises or assign this Lease to any party, in whole or in part,
(herein "Assignment"), Tenant shall notify Landlord not less than sixty (60)
days prior to the date Tenant desires to sublease such portion of the Premises
or assign this Lease ("Tenant's Notice"). Tenant's Notice shall set forth the
description of the portion of the Premises to be so sublet or assigned and the
terms and conditions on which Tenant desires to sublet the Premises or assign
this Lease. Landlord shall have thirty (30) days following receipt of Tenant's
Notice within which to exercise Landlord's rights pursuant to subparagraph C
above and to notify Tenant of its election ("Landlord's Notice"). If Landlord
consents to the proposed subletting or assignment, Tenant shall be free to
sublet the portion of the Premises in question or assign the applicable portion
of its interest in this Lease to any third party on terms substantially
identical to those described in Tenant's Notice, subject to Landlord's consent
as set forth in subparagraph A above. If Tenant is unable to sublet said portion
of the Premises or assign the applicable portion of its interest in this Lease
on said terms and conditions within one hundred twenty (120) days following its
original notice to Landlord, Tenant agrees to re-offer the Premises to Landlord
in accordance with the provisions hereof prior to leasing or assigning the same
to any third party.
E. Tenant covenants and agrees that Tenant shall not, and shall not allow
any subtenant of Tenant to, enter into any sublease, license, concession or
other agreement of use, occupancy or utilization of space in the Premises, which
provides for a rental or other payment for such use, occupancy or utilization
based in whole or in part on the income (other than gross income or gross
receipts to be determined in a manner satisfactory to counsel for Landlord) or
profits of any sublessee, licensee, concessionaire or other user or occupant,
and further agrees that a breach of this covenant and agreement shall be a
material breach of this Lease. The provisions for any such rental in violation
of this paragraph shall be void at its inception and Tenant agrees that rent
under the
Page 17
offending lease, sublease, license, concession or agreement shall be calculated
at an amount equal to the fair rental value thereof.
F. A sale by Tenant of all or substantially all of its assets or all or
substantially all of its stock if Tenant is a publicly traded corporation, a
merger of Tenant with another corporation, the transfer of forty-nine percent
(49%) or more of the stock in a corporate tenant whose stock is not publicly
traded, or transfer of forty-nine percent (49%) or more of the beneficial
ownership interests in a tenant which is a partnership shall constitute an
assignment hereunder.
G. All documents utilized by Tenant to evidence any subletting or
assignment to which Landlord has consented shall be subject to prior approval by
Landlord or its counsel. Tenant shall pay on demand all of Landlord's costs and
expenses, including reasonable attorneys' fees, incurred in determining whether
or not to consent to any requested sublease or assignment and in reviewing and
approving such documentation.
H. Notwithstanding anything to the contrary contained in this Lease, if a
trustee in bankruptcy is entitled to assume control over Tenant's rights under
this Lease and assigns such rights to any third party, the Base Rent to be paid
hereunder by such party shall be increased to the then current Base Rent (if
greater than then being paid for the Premises) which Landlord would charge for
comparable space in the Building Complex as of the date of such third party's
occupancy of the Premises.
14. DAMAGE TO PROPERTY AND INDEMNITY BY TENANT
A. Tenant shall neither hold nor attempt to hold Landlord or its agents,
members and employees, liable for any injury or damage, either proximate or
remote, occurring through or caused by fire, water, steam, or any repairs,
alterations, injury, accident, or any other cause to the Premises, to any
furniture, fixtures, Tenant improvements, or other personal property of Tenant
kept or stored in the Premises, or in other parts of the Building Complex not
herein demised, whether by reason of the negligence or default of the owners or
occupants thereof or any other person or otherwise and the keeping or storing of
all property of Tenant in the Building Complex and/or Premises shall be at the
sole risk of Tenant.
B. Subject to Paragraph 15.E below, Tenant hereby agrees to indemnify,
defend, and save Landlord, its agents, members and employees, harmless of and
from all liability, loss, damages, costs, or expenses, including attorneys'
fees, on account of injuries to the person or property of Landlord or of any
other tenant in the Building Complex or to any other person rightfully in said
Building Complex for any purpose whatsoever, where the injuries are caused by
the negligence or misconduct of the Tenant, Tenant's agents, servants, or
employees or of any other person entering upon the Premises under express or
implied invitation of Tenant or where such injuries are the result of the
violation of the provisions of this Lease by any of such persons.
15. INSURANCE AND WAIVER OF SUBROGATION
Page 18
A. Landlord shall maintain casualty insurance on the shell and core of the
Building, Other Building, on the Premises (to the extent of the Building
Standard Tenant Finish Work items therein) and the Building Complex, in such
amounts, from such companies, and on such terms and conditions, including loss
of rental insurance for a period of twelve (12) months, as Landlord deems
appropriate, from time to time. Tenant understands that Landlord will not carry
insurance of any kind on Tenant's furniture and furnishings or on any fixture or
equipment removable by Tenant under the provisions of this Lease or any other
improvements installed in the Premises by or for Tenant other than Building
Standard, and that Landlord shall not be obligated to repair any damage thereto
or replace the same.
B. Tenant shall obtain and maintain throughout the term of this Lease "all
risk" or "multi-peril" form insurance on and for the full cost of replacement of
all of Tenant's property and betterments in the Premises, including, without
limitation, all furniture, fixtures, personal property and all tenant finish in
excess of Building Standard Tenant Finish Work Items.
C. In addition to the above, Tenant shall obtain and maintain throughout
the term of this Lease a commercial general liability policy, including
protection against death, personal injury and property damage, issued by an
insurance company qualified to do business in the State of Colorado, with a
single limit of not less than One Million Dollars ($1,000,000.00).
D. All policies of insurance required to be carried by Tenant hereunder
shall name Landlord as an additional insured. Each such policy shall provide
that the same may not be cancelled or modified without at least twenty (20)
days' prior written notice to Landlord and any Mortgagee (as defined herein).
Tenant shall deliver, upon execution of this Lease, and from time to time as
reasonably requested by Landlord thereafter, certificates evidencing that such
insurance, as required under this paragraph, is in full force and effect.
Failure to deliver said certificates of insurance shall be deemed an Event of
Default. The limits of said insurance shall not, under any circumstances, limit
the liability of Tenant hereunder.
E. Notwithstanding anything to the contrary contained herein Landlord and
Tenant hereby mutually waive and release their respective rights of recovery
against each other, and their officers, directors, members, agents and employees
(but not against other third parties) for (i) any loss on its property capable
of being insured against by "all risk" or "multiperil" form insurance coverage
whether carried or not; and (ii) all loss, cost, damage or expense arising out
of or due to any interruption of business (regardless of the cause therefor),
increased or additional costs of operation of business or other costs or
expenses whether similar or dissimilar which are capable of being insured
against under business interruption insurance whether or not carried. Each party
shall apply to their insurers to obtain said waivers and obtain any special
endorsements, if required by their insurer to evidence compliance with the
aforementioned waiver, and shall bear the cost therefor.
16. SURRENDER AND NOTICE
Upon the expiration or other termination of the term of this Lease or the
early termination of Tenant's right to occupy the Premises, Tenant shall
promptly quit and surrender to Landlord the Premises broom clean, in good order
and condition, ordinary wear and tear and loss by fire or other
Page 19
casualty excepted unless due to the negligence of Tenant, and Tenant shall
remove all of its movable furniture and other effects. In the event Tenant fails
to vacate the Premises on a timely basis as required, Tenant shall be
responsible to Landlord for all costs incurred by Landlord as a result of such
failure, including, but not limited to, any amounts required to be paid to third
parties who were to have occupied the Premises. All movable furniture, other
effects and Alterations, not so removed shall conclusively be deemed to have
been abandoned and may be appropriated, sold, stored, destroyed or otherwise
disposed of by Landlord without notice to Tenant or any other person and without
obligation to account therefor and Tenant shall pay Landlord all expenses
incurred in connection with such property, including, but not limited to, the
cost of repairing any damage to the Building Complex, or Premises caused by
removal of such property. Tenant's obligation hereunder shall survive the
expiration or other termination of this Lease or the early termination of
Tenant's right to occupy the Premises.
17. ACCEPTANCE OF PREMISES BY TENANT
Subject to substantial compliance by Landlord of the provisions of Exhibit
C hereto and subject to the Landlord's contractor's obligation to complete all
reasonable punch list items within thirty (30) days after the walk-through
inspection or as soon as practicable after such walk-through, taking possession
of the Premises by Tenant shall be conclusive evidence as against Tenant that
the Premises were in the condition agreed upon between Landlord and Tenant and
acknowledgement of satisfactory completion of any fix-up or remodeling, as the
case may be, which Landlord has agreed in writing to perform.
18. CASUALTY AND RESTORATION OF PREMISES
A. If the Premises or the Building shall be so damaged by fire or other
casualty as to render the Premises wholly untenantable and if such damage shall
be so great that a competent architect, in good standing, selected by Landlord
shall certify in writing to Landlord and Tenant within sixty (60) days of said
casualty that the Premises, with the exercise of reasonable diligence, cannot be
made fit for occupancy within one hundred eighty (180) working days from the
happening thereof, then this Lease shall cease and terminate from the date of
the occurrence of such damage and Tenant shall thereupon surrender to Landlord
the Premises and all interest therein hereunder and Landlord may reenter and
take possession of the Premises and remove Tenant therefrom. Tenant shall pay
rent, duly apportioned, up to the time of such termination of this Lease. If,
however, the damage shall be such that said architect shall certify within said
sixty (60) day period that the Premises can be made tenantable within said one
hundred eighty (180) day period, then, except as hereinafter provided, Landlord
shall repair the damage so done (to the extent of the Building Standard Tenant
Finish Work Items) with all reasonable speed.
B. If the Premises shall be slightly damaged by fire or other casualty, but
not so as to render the same wholly untenantable or to require a repair period
in excess of one hundred eighty (180) days, then Landlord, after receiving
notice in writing of the occurrence of the casualty, shall, except as hereafter
provided, cause the same to be repaired to the extent of the Building Standard
with reasonable promptness. If the estimated repair period as established in
accordance with the
Page 20
provisions of subparagraph A above exceeds one hundred eighty (180) days, then
the provisions of subparagraph A shall control notwithstanding the fact that the
Premises are not wholly untenantable.
C. In case the Building throughout shall be so damaged, whether by fire or
otherwise (though said Premises may not be affected, or if affected, can be
repaired within said one hundred eighty (180) days), that, within sixty (60)
days after the happening of such damage, Landlord shall decide not to
reconstruct or rebuild said Building, then, notwithstanding anything contained
herein to the contrary, upon notice in writing to that effect given by Landlord
to Tenant within said sixty (60) days, Tenant shall pay the rent, properly
apportioned up to the date of the damage, this Lease shall terminate from the
date of delivery of said written notice, and both parties hereto shall be freed
and discharged of all further obligations hereunder.
D. Provided that the casualty is not the fault of Tenant, Tenant's agents,
servants, or employees, Tenant's rent shall xxxxx during any such period of
repair and restoration, in the same proportion that the part of the Premises
rendered untenantable bears to the whole.
19. CONDEMNATION
If the entire Premises or substantially all of the Premises or any portion
of the Building Complex which shall render the Premises untenantable shall be
taken by right of eminent domain or by condemnation or shall be conveyed in lieu
of any such taking, then this Lease, at the option of either Landlord or Tenant
exercised by either party giving notice to the other of such termination within
thirty (30) days after such taking or conveyance, shall forthwith cease and
terminate and the rent shall be duly apportioned as of the date of such taking
or conveyance. Tenant thereupon shall surrender the Premises and all interest
therein under this Lease to Landlord and Landlord may reenter and take
possession of the Premises or remove Tenant therefrom. In the event less than
all of the Premises shall be taken by such proceeding, Landlord shall promptly
repair the Premises as nearly as possible to its condition immediately prior to
said taking, unless Landlord elects not to reconstruct or rebuild as described
in subparagraph C of Paragraph 18 above. In the event of any such taking or
conveyance, Landlord shall receive the entire award or consideration for the
portion of the Building Complex so taken.
20. DEFAULT BY TENANT
A. Events of Default. Each one of the following events is herein referred
to as an "Event of Default":
(1) Any failure by Tenant to pay the rent or any other monetary sums
required to be paid hereunder within five (5) days from the date such sums are
due.
(2) Tenant shall vacate or abandon the Premises. Tenant shall be
deemed to have vacated the Premises if Tenant has not used the Premises for the
permitted use under this Lease for a period of thirty (30) calendar days.
Page 21
(3) This Lease or the estate of Tenant hereunder shall be transferred
to or shall pass to or devolve upon any other person or party except in the
manner set forth in Paragraph 13.
(4) This Lease or the Premises or any part thereof shall be taken upon
execution or by other process of law directed against Tenant or shall be taken
upon or subject to any attachment at the instance of any creditor of or claimant
against Tenant and said attachment shall not be discharged or disposed of within
fifteen (15) days after the levy thereof.
(5) The filing of any petition or the commencement of any case or
proceeding by the Tenant under any provision or chapter of the Federal
Bankruptcy Act, the Federal Bankruptcy Code, or any other federal or state law
relating to insolvency, bankruptcy, or reorganization or the adjudication that
the Tenant is insolvent or bankrupt or the entry of an order for relief under
the Federal Bankruptcy Code with respect to Tenant.
(6) The filing of any petition or the commencement of any case or
proceeding described in subparagraph (5) above against the Tenant, unless such
petition and all proceedings initiated thereby are dismissed within sixty (60)
days from the date of such filing, the filing of an answer by Tenant admitting
the allegations of any such petition, the appointment of or taking possession by
a custodian, trustee or receiver for all or any assets of the Tenant, unless
such appointment is vacated or dismissed within sixty (60) days from the date of
such appointment.
(7) The insolvency of the Tenant or the execution by the Tenant of an
assignment for the benefit of creditors, the convening by Tenant of a meeting of
its creditors, or any class thereof, for purposes of effecting a moratorium upon
or extension or composition of its debts, or the failure of the Tenant generally
to pay its debts as they mature.
(8) The admission in writing by Tenant or any partner of Tenant if
Tenant is a partnership that he is unable to pay his debts as they mature or he
is generally not paying his debts as they mature.
(9) Tenant shall fail to accept possession of the Premises or Landlord
receives notice or has knowledge that Tenant does not intend to take possession
of the Premises on the date the Primary Lease Term is to commence.
(10) Tenant shall fail to perform any of the other agreements, terms,
covenants, or conditions hereof on Tenant's part to be performed and such
non-performance shall continue for a period of ten (10) days after written
notice thereof by Landlord to Tenant or, if such performance cannot be
reasonably had within such ten (10) day period, Tenant shall not in good faith
have commenced such performance within such ten (10) day period and shall not
diligently proceed therewith to completion no later than sixty (60) days from
the above-written notice.
(11) Tenant, if a corporation or partnership, shall dissolve,
liquidate or cease to exist.
B. Remedies of Landlord. If any one or more Event of Default shall happen,
then Landlord shall have the right at Landlord's election, then or at any time
thereafter, either:
Page 22
(1) (a) Without demand or notice, to reenter and take possession of
the Premises or any part thereof and repossess the same as of Landlord's former
estate and expel Tenant and those claiming through or under Tenant and remove
the effects of both or either, without being deemed guilty of any manner of
trespass and without prejudice to any remedies for arrears of rent or preceding
breach of covenants or conditions. Should Landlord elect to reenter, as provided
in this subparagraph (1), or should Landlord take possession pursuant to legal
proceedings or pursuant to any notice provided for by law, Landlord may, from
time to time, without terminating this Lease, relet the Premises or any part
thereof, either alone or in conjunction with other portions of the Building
Complex of which the Premises are a part, in Landlord's or Tenant's name but for
the account of Tenant, for such term or terms (which may be greater or less than
the period which would otherwise have constituted the balance of the term of
this Lease) and on such conditions and upon such other terms (which may include
concessions of free rent and alteration and repair of the Premises) as Landlord,
in its absolute discretion, may determine and Landlord may collect and receive
the rents therefor. Landlord shall in no way be responsible or liable for any
failure to relet the Premises, or any part thereof, or for any failure to
collect any rent due upon such reletting. No such reentry or taking possession
of the Premises by Landlord shall be construed as an election on Landlord's part
to terminate this Lease unless a written notice of such intention be given to
Tenant. No notice from Landlord hereunder or under a forcible entry and detainer
statute or similar law shall constitute an election by Landlord to terminate
this Lease unless such notice specifically so states. Landlord reserves the
right following any such reentry and/or reletting to exercise its right to
terminate this Lease by giving Tenant such written notice, in which event the
Lease will terminate as specified in said notice.
(b) If Landlord elects to take possession of the Premises as
provided in this subparagraph (1) without terminating the Lease, Tenant shall
pay to Landlord (i) the rent and other sums as herein provided, which would be
payable hereunder if such repossession had not occurred, less (ii) the net
proceeds, if any, of any reletting of the Premises after deducting all of
Landlord's expenses incurred in connection with such reletting, including, but
without limitation, all repossession costs, brokerage commissions, legal
expenses, attorneys' fees, expenses of employees, alteration, remodeling, and
repair costs and expenses of preparation for such reletting. If, in connection
with any such reletting, the new lease term extends beyond the existing term or
the premises covered thereby include other premises not part of the Premises, a
fair apportionment of the rent received from such reletting and the expenses
incurred in connection therewith, as provided aforesaid, will be made in
determining the net proceeds received from such reletting. In addition, in
determining the net proceeds from such reletting, any rent concessions will be
apportioned over the term of the new lease. Tenant shall pay such amounts to
Landlord monthly on the days on which the rent and all other amounts owing
hereunder would have been payable if possession had not been retaken and
Landlord shall be entitled to receive the same from Tenant on each such day; or
(2) To give Tenant written notice of intention to terminate this Lease
on the date of such given notice or on any later date specified therein and, on
the date specified in such notice, Tenant's right to possession of the Premises
shall cease and the Lease shall thereupon be terminated, except as to Tenant's
liability hereunder as hereinafter provided, as if the expiration of the term
fixed in such notice were the end of the term herein originally demised. In the
event this Lease is terminated pursuant to the provisions of this subparagraph
(2), Tenant shall remain liable to Landlord
Page 23
for damages in an amount equal to the rent and other sums which would have been
owing by Tenant hereunder for the balance of the term had this Lease not been
terminated less the net proceeds, if any, of any reletting of the Premises by
Landlord subsequent to such termination, after deducting all Landlord's expenses
in connection with such reletting, including, but without limitation, the
expenses enumerated above. Landlord shall be entitled to collect such damages
from Tenant monthly on the days on which the rent and other amounts would have
been payable hereunder if this Lease had not been terminated and Landlord shall
be entitled to receive the same from Tenant on each such day. Alternatively, at
the option of Landlord, in the event this Lease is terminated, Landlord shall be
entitled to recover forthwith against Tenant as damages for loss of the bargain
and not as a penalty an amount equal to the worth at the time of termination of
the excess, if any, of the amount of rent reserved in this Lease for the balance
of the term hereof over the then Reasonable Rental Value of the Premises for the
same period plus all amounts incurred by Landlord in order to obtain possession
of the Premises and relet the same, including attorneys' fees, reletting
expenses, alterations and repair costs, brokerage commissions and all other like
amounts. It is agreed that the "Reasonable Rental Value" shall be the amount of
rental which Landlord can obtain as rent for the remaining balance of the term.
C. Cumulative Remedies. Suit or suits for the recovery of the rents and
other amounts and damages set forth hereinabove may be brought by Landlord, from
time to time, at Landlord's election, and nothing herein shall be deemed to
require Landlord to await the date whereon this Lease or the term hereof would
have expired had there been no such default by Tenant or no such termination, as
the case may be. Each right and remedy provided for in this Lease shall be
cumulative and shall be in addition to every other right or remedy provided for
in this Lease or now or hereafter existing at law or in equity or by statute or
otherwise, including, but not limited to, suits for injunctive relief and
specific performance. The exercise or beginning of the exercise by Landlord of
any one or more of the rights or remedies provided for in this Lease or now or
hereafter existing at law or in equity or by statute or otherwise shall not
preclude the simultaneous or later exercise by Landlord of any or all other
rights or remedies provided for in this Lease or now or hereafter existing at
law or in equity or by statute or otherwise. All such rights and remedies shall
be considered cumulative and non-exclusive. All costs incurred by Landlord in
connection with collecting any rent or other amounts and damages owing by Tenant
pursuant to the provisions of this Lease, or to enforce any provision of this
Lease, shall also be recoverable by Landlord from Tenant. Further, if an action
is brought pursuant to the terms and provisions of the Lease, the prevailing
party in such action shall be entitled to recover from the other party any and
all reasonable attorneys' fees incurred by such prevailing party in connection
with such action.
D. No Waiver. No failure by Landlord to insist upon the strict performance
of any agreement, term, covenant or condition hereof or to exercise any right or
remedy consequent upon a breach thereof and no acceptance of full or partial
rent during the continuance of any such breach shall constitute a waiver of any
such breach or of such agreement, term, covenant, or condition. No agreement,
term, covenant, or condition hereof to be performed or complied with by Tenant
and no breach thereof shall be waived, altered, or modified, except by written
instrument executed by Landlord. No waiver of any breach shall affect or alter
this Lease but each and every agreement, term, covenant, and condition hereof
shall continue in full force and effect with respect to any other then existing
or subsequent breach thereof. Notwithstanding any termination of this Lease, the
same
Page 24
shall continue in force and effect as to any provisions which require observance
or performance by Landlord or Tenant subsequent to such termination.
E. Bankruptcy. Nothing contained in this Paragraph 20 shall limit or
prejudice the right of Landlord to prove and obtain as liquidated damages in any
bankruptcy, insolvency, receivership, reorganization, or dissolution proceeding
an amount equal to the maximum allowed by any statute or rule of law governing
such a proceeding and in effect at the time when such damages are to be proved,
whether or not such amount be greater, equal to, or less than the amounts
recoverable, either as damages or rent, referred to in any of the preceding
provisions of this paragraph. Notwithstanding anything contained in this Lease
to the contrary, if this Lease is rejected in any bankruptcy action or
proceeding filed by or against Tenant, and the effective date of rejection is on
or after the date upon which that month's Base Rent and Additional Rent is due
and owing, then the Base Rent and Additional Rent owing under this Lease for the
month during which the effective date of such rejection occurs shall be due and
payable in full and shall not be prorated. Notwithstanding anything contained in
this paragraph to the contrary, any such proceeding or action involving
bankruptcy, insolvency, reorganization, arrangement, assignment for the benefit
of creditors, or appointment of a receiver or trustee, as set forth above, shall
be considered to be an Event of Default only when such proceeding, action, or
remedy shall be taken or brought by or against the then holder of the leasehold
estate under this Lease. Landlord and Tenant understand that notwithstanding
certain provisions to the contrary contained herein, a trustee or debtor in
possession under the Bankruptcy Code of the United States may have certain
rights to assume or assign this Lease. Landlord and Tenant further understand
that in any event Landlord is entitled under the Bankruptcy Code to Adequate
Assurance (as defined below) of future performance of the terms and provisions
of this Lease. For purposes of any such assumption or assignment, the parties
hereto agree that the term "Adequate Assurance" shall include at least the
following:
(1) In order to assure Landlord that the proposed assignee will have
the resources with which to pay the rent called for herein, any proposed
assignee must have a net worth (as defined in accordance with generally accepted
accounting principles consistently applied) at least as great as the net worth
of Tenant on the date this Lease became effective. The financial condition and
resources of Tenant were a material inducement to Landlord in entering into this
Lease.
(2) Any proposed assignee of this Lease must assume and agree to be
personally bound by the terms, provisions, and covenants of this Lease.
F. Late Payment Charge. Any rents or other amounts owing hereunder which
are not paid within five (5) days from the date they are due shall thereafter
bear interest at the rate of five percentage points over the Prime Rate then
being charged by Norwest Bank of Denver or its successor, to its most
credit-worthy customers on an unsecured basis for short term loans (the "Prime
Rate") or the highest rate permitted by applicable usury law, whichever is
lower, until paid. Further, in the event any rents or other amounts owing
hereunder are not paid within said five (5) days from the date they are due,
Landlord and Tenant agree that Landlord will incur additional administrative
expenses, the amount of which will be difficult if not impossible to determine.
Accordingly, Tenant shall pay to Landlord an additional, one-time late charge
for any such late payment in the amount of five percent (5%) of such payment.
Any amounts paid by Landlord to cure any defaults of Tenant hereunder, which
Landlord shall have the right but not the obligation to do, shall, if not repaid
by
Page 25
Tenant within five (5) days of demand by Landlord, thereafter bear interest
at the rate of three percentage points over the Prime Rate or the highest rate
permitted by applicable usury law, whichever is lower, until paid.
G. Waiver of Jury Trial. Tenant hereby waives (to the extent allowed by
law) any and all rights to a trial by jury in suit or suits brought to enforce
any provision of this Lease or arising out of or concerning the provisions of
this Lease.
21. SUBORDINATION AND ATTORNMENT
A. This Lease, at Landlord's option, shall be subordinate to any mortgage
or deed of trust (now or hereafter placed upon the Building and/or Building
Complex, or any portion thereof), including any amendment, modification, or
restatement of any of such documents, and to any and all advances made under any
mortgage or deed of trust and to all renewals, modifications, consolidations,
replacements, and extensions thereof. Tenant agrees that with respect to any of
the foregoing documents, no documentation, other than this Lease, shall be
required to evidence such subordination.
B. If any holder of a mortgage or deed of trust shall elect to have this
Lease superior to the lien of the holder's mortgage or deed of trust and shall
give written notice thereof to Tenant, this Lease shall be deemed prior to such
mortgage or deed of trust, whether this Lease is dated prior or subsequent to
the date of said mortgage or deed of trust or the date of recording thereof.
C. In confirmation of such subordination or superior position, as the case
may be, Tenant agrees to execute such documents as may be required by Landlord
or its Mortgagee to evidence the subordination of its interest herein to any of
the documents described above, or to evidence that this Lease is prior to the
lien of any mortgage or deed of trust, as the case may be, and failing to do so
within ten (10) days after written demand, Tenant does hereby make, constitute,
and irrevocably appoint Landlord as Tenant's attorney-in-fact and in Tenant's
name, place, and stead, to do so.
D. Tenant hereby agrees to attorn to all successor owners of the Building
and/or Building Complex, whether or not such ownership is acquired as a result
of a sale, through foreclosure of a deed of trust or mortgage, or otherwise and
agrees to confirm such attornment in writing.
22. HOLDING OVER: TENANCY MONTH-TO-MONTH
If, after the expiration of this Lease, Tenant shall remain in possession
of the Premises and continue to pay rent, and Landlord shall accept such rent,
without any express written agreement as to such holding over, then such holding
over shall be deemed and taken to be a holding upon a tenancy from
month-to-month, subject to all the terms and conditions hereof on the part of
Tenant to be observed and performed and at a monthly rent equivalent to 150% of
the monthly installments paid by Tenant immediately prior to such expiration or
the current market rental rate for the Premises then being offered by Landlord
in the Lakewood, Colorado office market, whichever is greater. All such rent
shall be payable in advance on the same day of each calendar month. Such
month-to-
Page 26
month tenancy may be terminated by either party upon ten (10) days' notice prior
to the end of any such monthly period. Nothing contained herein shall be
construed as obligating Landlord to accept any rental tendered by Tenant after
the expiration of the term hereof or as relieving Tenant of its liability
pursuant to Paragraph 16.
23. PAYMENTS AFTER TERMINATION
No payments of money by Tenant to Landlord after the termination of this
Lease or the early termination of Tenant's right to occupy the Premises, in any
manner, or after giving of any notice (other than a demand for payment of money)
by Landlord to Tenant shall reinstate, continue, or extend the term of this
Lease or affect any notice given to Tenant prior to the payment of such money,
it being agreed that after the service of notice or the commencement of a suit
or other final judgment granting Landlord possession of the Premises, Landlord
may receive and collect any sums of rent due or any other sums of money due
under the terms of this Lease or otherwise exercise Landlord's rights and
remedies hereunder and the payment of such sums of money, whether as rent or
otherwise, shall not waive said notice or in any manner affect any pending suit
or judgment theretofore obtained.
24. STATEMENT OF PERFORMANCE
Tenant agrees at any time and from time to time, upon not less than ten
(10) days prior written request by Landlord, to execute, acknowledge, and
deliver to Landlord a statement in writing certifying that this Lease is
unmodified and in full force and effect (or, if there have been modifications,
that the same is in full force and effect as modified and stating the
modifications), that there have been no defaults thereunder by Landlord or
Tenant (or, if there have been defaults, setting forth the nature thereof), the
date to which the rent and other charges have been paid in advance, if any, and
such other information as Landlord may request. It is intended that any such
statement delivered pursuant to this paragraph may be relied upon by any
prospective purchaser of all or any portion of Landlord's interest herein or a
holder of any mortgage or deed of trust encumbering the Building and/or Building
Complex. Tenant's failure to deliver such statement within such time shall be
conclusive upon Tenant that: (i) this Lease is in full force and effect, without
modification except as may be represented by Landlord; (ii) there are no uncured
defaults in Landlord's performance; and (iii) not more that one (1) month's rent
has been paid in advance. Further, upon request, Tenant will supply to Landlord
a corporate or partnership resolution, as the case may be, certifying that the
party signing said statement of Tenant is properly authorized to do so.
25. MISCELLANEOUS
A. Definition of Landlord. The term "Landlord" as used in this Lease, so
far as covenants or obligations on the part of Landlord are concerned, shall be
limited to mean and include only the owner or owners of the Building at the time
in question and, in the event of any transfer or transfers of the title thereto,
Landlord herein named (and in the case of any subsequent transfers or
conveyances, the then grantor) shall be automatically released, from and after
the date of such
Page 27
transfer or conveyance, of all liability as respects the performance of any
covenants or obligations on the part of Landlord contained in this Lease
thereafter to be performed, provided that any funds in the hands of Landlord or
the then grantor at the time of such transfer in which Tenant has an interest
shall be turned over to the grantee and any amount then due and payable to
Tenant by Landlord or the then grantor under any provisions of this Lease shall
be paid to Tenant.
B. Merger. The termination or mutual cancellation of this Lease shall not
work a merger, and such termination or mutual cancellation shall, at the option
of Landlord, either terminate all subleases and subtenancies or operate as an
assignment to Landlord of any or all such subleases or subtenancies.
C. Entrances. The Tenant agrees that, for the purposes of completing or
making repairs or alterations in any portion of the Building Complex, Landlord
may use one or more of the street entrances, the halls, passageways, and
elevators of the Building or Other Building.
D. Independent Covenants. This Lease shall be construed as though the
covenants herein between Landlord and Tenant are independent and not dependent
and Tenant shall not be entitled to any setoff of the rent or other amounts
owing hereunder against Landlord if Landlord fails to perform its obligations
set forth herein, provided, however, the foregoing shall in no way impair the
right of Tenant to commence a separate action against Landlord for any violation
by Landlord of the provisions hereof so long as notice is first given to
Landlord and any holder of a mortgage or deed of trust covering the Building
and/or Building Complex or any portion thereof and an opportunity granted to
Landlord and such holder to correct such violation as provided in subparagraph H
of this Paragraph 25.
E. Severability. If any clause or provision of this Lease is illegal,
invalid, or unenforceable under present or future laws effective during the term
of this Lease, then and in that event it is the intention of the parties hereto
that the remainder of this Lease shall not be affected thereby and it is also
the intention of the parties to this Lease and in lieu of each clause or
provision of this Lease that is illegal, invalid, or unenforceable there be
added as a part of this Lease a clause or provision as similar in terms to such
illegal, invalid, or unenforceable clause or provision as may be possible and be
legal, valid, and enforceable.
F. Captions. The caption of each paragraph is added as a matter of
convenience only and shall be considered of no effect in the construction of any
provision or provisions of this Lease.
G. Successors and Assigns. Except as herein specifically set forth, all
terms, conditions, and covenants to be observed and performed by the parties
hereto shall be applicable to and binding upon their respective heirs,
administrators, executors, and assigns. The terms, conditions, and covenants
hereof shall also be considered to be covenants running with the land to the
fullest extent permitted by law.
H. Landlord Default. In the event of any alleged default on the part of
Landlord hereunder, Tenant shall give written notice to Landlord in the manner
herein set forth and shall afford Landlord a reasonable opportunity to cure any
such default. Notice to Landlord of any such alleged default shall be
ineffective unless notice is simultaneously delivered to any holder of a
Page 28
Mortgage and/or Trust Deed affecting all or any portion of the Building and/or
Building Complex ("Mortgagees"), as hereafter provided. Tenant agrees to give
all Mortgagees, by certified mail, return receipt requested, a copy of any
notice of default served upon Landlord, provided that prior to such notice
Tenant has been notified, in writing (by way of notice of Assignment of Rents
and Leases, or otherwise), of the address of such Mortgagees. Tenant further
agrees that if Landlord shall have failed to cure such default within the time
provided for in this Lease, then the Mortgagees shall have an additional thirty
(30) days within which to cure such default or, if such default cannot be cured
within that time, then such additional time as may be necessary, if, within such
thirty (30) days, any Mortgagee has commenced and is diligently pursuing the
remedies necessary to cure such default (including, but not limited to,
commencement of foreclosure proceedings, if necessary to effect such cure), in
which event this Lease shall not be terminated while such remedies are being so
diligently pursued. In no event will Landlord or any Mortgagee be responsible
for any consequential damages incurred by Tenant as a result of any default,
including, but not limited to, lost profits or interruption of business as a
result of any alleged default by Landlord hereunder.
I. Tenant Authorization. Tenant and the party executing this Lease on
behalf of Tenant represent to Landlord that such party is authorized to do so by
requisite action of the board of directors or partners, as the case may be, and
agree, upon request, to deliver to Landlord a resolution or similar document or
opinion of counsel to that effect.
J. Joint and Several Liability. If there are more than one entity or person
which or who are the Tenant under this Lease, the obligations imposed upon
Tenant under this Lease shall be joint and several.
K. Amendment or Modification. No act or thing done by Landlord or
Landlord's agents during the term hereof, including, but not limited to, any
agreement to accept surrender of the Premises or to amend or modify this Lease,
shall be deemed to be binding on Landlord, unless such act or thing shall be by
a partner or officer of Landlord, as the case may be, or a party designated in
writing by Landlord as so authorized to act. The delivery of keys to Landlord,
or Landlord's agents, employees, or officers shall not operate as a termination
of this Lease or a surrender of the Premises. No payment by Tenant or receipt by
Landlord of a lesser amount than the monthly rent and all other amounts owing,
as herein stipulated, shall be deemed to be other than on account of the
earliest stipulated rent or other amounts 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 available to Landlord.
L. Building Security. As part of the services Landlord provides hereunder,
Landlord may elect to provide a concierge or security guard for more efficient
operation of the Building Complex, and the cost therefor shall be included as an
Operating Expense. Landlord is not obligated to provide such services at any
time or for any length of time. Tenant expressly acknowledges that Landlord has
not represented to Tenant that the Building, the Other Building or the Building
Complex are secure buildings or areas and Landlord assumes no duty to Tenant,
its agents, employees, invitees or others because Landlord provides such
service.
Page 29
M. Hazardous Materials. Except for hazardous materials customarily used for
normal office purposes, Tenant shall be prohibited from storing, handling,
and/or disposing of hazardous substances or environmental pollutants as those
terms are defined under federal, state, or local environmental statutes,
ordinances, or regulations in or about the Premises and Building Complex. In the
event Tenant violates this provision, Tenant shall indemnify and hold Landlord,
its officers, directors, members, agents or employees harmless from any and all
claims, liabilities, judgments, loss, cost, or damage including clean-up costs,
fines, penalties, and attorneys' fees arising from the use, storage and/or
disposal of hazardous substances environmental pollutants in or about the
Premises and/ or Building Complex. Tenant's liability for all loss, cost, or
damage arising from such use, storage, and/or disposal shall survive the
expiration or early termination of this Lease or the early termination of
Tenant's right to occupy the Premises.
N. Control of Building. Landlord shall have the right at any time to change
the name of the Building, the Other Building or the Building Complex, to
increase the size of the Building Complex by adding additional real property
thereto, to construct other buildings or improvements on any portion of the
Building Complex or to change the location and/or character of or to make
alterations of or additions to the Building Complex. In the event any such
additional buildings are constructed or Landlord increases the size of the
Building Complex, Landlord and Tenant shall execute an Amendment to Lease which
incorporates such modifications, additions, and adjustments to Tenant's Pro Rata
Share, if necessary. Tenant shall not use the name of the Building, the Other
Building or the Building Complex for any purpose other than as a part of its
business address. Any use of such name in the designation of Tenant's business
shall constitute a default under this Lease.
O. Air, Light or View. Tenant covenants and agrees that no diminution of
light, air, or view by any structure that may hereafter be erected (whether or
not by Landlord) shall entitle Tenant to any reduction of rent or other charges
under this Lease, result in any liability of Landlord to Tenant, or in any way
affect this Lease or Tenant's obligations hereunder.
P. Limitation of Liability. Notwithstanding anything to the contrary
contained in this Lease, the liability of Landlord to Tenant for any default by
Landlord under the terms of this Lease shall be limited to the interest of
Landlord in the Building and the Property and Tenant agrees to look solely to
Landlord's interest in the Building and the Property for the recovery of any
judgment against the Landlord, it being intended that Landlord shall not be
personally liable for any judgment or deficiency.
Q. No Representations by Landlord. Tenant acknowledges and agrees that it
has not relied upon any statements, representations, agreements, or warranties
by Landlord, its agents or employees, except such as are expressed herein and
that no amendment or modification of this Lease shall be valid or binding unless
expressed in writing and executed by the parties hereto in the same manner as
the execution of this Lease.
R. Effectiveness. Submission of this instrument for examination or
signature by Tenant does not constitute a reservation of or an option for lease,
and it is not effective as a lease or otherwise until execution and delivery by
both Landlord and Tenant.
Page 30
S. Governing Law. This Lease shall be governed by and interpreted in
accordance with the laws of the State of Colorado.
T. Force Majeure. Whenever a period of time is herein prescribed for the
taking of any action by Landlord, Landlord shall not be liable or responsible
for, and there shall be excluded from the computation of such period of time,
any delays due to strikes, riots, acts of God, shortages of labor or materials,
war, terrorism, governmental laws, regulations or restrictions, or any other
cause whatsoever beyond the control of Landlord.
U. Removal of Cabling. Tenant shall be solely responsible for the cost of
installation and maintenance of any high speed cable or fiber optic that Tenant
requires in the Premises. Landlord shall provide reasonable access to the
Building's electrical lines, feeders, risers, wiring and other machinery to
enable Tenant to install high speed cable or fiber optic to serve its intended
purpose, if any. All such cabling installed shall be tagged by Tenant at their
point of entry into the Building, at the terminal end of the cable and in the
riser closet indicating the type of cable, the Tenant's name and the service
provided. Tenant shall be responsible for the removal of such cabling and fiber
optic at the termination or expiration of the Primary Lease Term or the early
termination of the Tenant's right to occupy the Premises. Failure to remove any
abandoned or unused cabling at the expiration or termination of the Primary
Lease Term or the early termination of Tenant's right to occupy the Premises
will be deemed to be a holdover under Paragraph 22 of the Lease. In the event
Tenant fails to remove such cabling as set forth herein, Landlord may, but shall
not be obligated to, remove such cabling, all at Tenant's sole cost and expense.
26. AUTHORITIES FOR ACTION AND NOTICE
A. Except as herein otherwise provided, Landlord may act in any manner
provided for herein by and through Landlord's Building Manager or any other
person who shall from time to time be designated in writing.
B. All notices, demands, statements or communications required or permitted
to be given to Landlord hereunder shall be in writing and shall be deemed duly
served when deposited in the United States mail, postage prepaid, certified or
registered, return receipt requested, addressed to Landlord at Landlord's Notice
Address or at the most recent address of which Landlord, has notified Tenant in
writing. All notices, demands, statements or communications required to be given
to Tenant hereunder shall be in writing and shall be deemed duly served when
delivered personally to any officer of Tenant (or a partner of Tenant if Tenant
is a partnership or to Tenant individually if Tenant is a sole proprietor) or
manager of Tenant whose office is in the Building Complex, when deposited in the
United States mail, postage prepaid, certified or registered, return receipt
requested, addressed to Tenant at the Premises, or, prior to Tenant's taking
possession of the Premises, to the address known to Landlord as Tenant's Notice
Address. Notices required hereunder may be given by either an agent or attorney
acting on behalf of Landlord. Either party shall have the right to designate in
writing, served as above provided, a different address to which notice is to be
mailed. The foregoing shall in no event prohibit notice from being given as
provided in Rule 4 of Colorado Rules of Civil Procedure as the same may be
amended from time to time.
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27. LANDLORD'S RIGHT TO SUBSTITUTE PREMISES
Landlord shall have the right at any time, upon giving Tenant not less than
fifteen (15) days notice in writing, but in no event more often than once during
the Primary Lease Term, to provide and furnish Tenant with space in a similar
location on another floor in the Building or Other Building of approximately the
same size as the Premises and to remove and place Tenant in such space at
Landlord's sole cost and expense, including reimbursing Tenant for its actual
costs incurred for moving expenses, stationery and business cards. Landlord
shall not be entitled to exercise the foregoing right to substitute Premises if
the Premises contain at least an entire floor of the Building. Landlord shall
notify Tenant in writing of the proposed substitute space, and Tenant shall have
thirty (30) days to notify Landlord in writing if such proposed space is not
acceptable. If Tenant so notifies Landlord, Landlord, at its option, shall have
the right to cancel and terminate this Lease effective ninety (90) days from the
date of expiration of Tenant's thirty (30) day response period or to withdraw
its request for Tenant to relocate. If Tenant does not so notify Landlord within
such thirty (30) day period, Tenant shall vacate the originally demised Premises
and move to the substitute space no later than sixty (60) days from the
expiration of Tenant's thirty (30) day response period. If Landlord moves Tenant
to such new space, this Lease and each and all of its terms, covenants and
conditions shall remain in full force and effect and be deemed applicable to
such new space, and such new space shall thereafter be deemed to be the
Premises. Failure of the Tenant to relocate as set forth herein shall constitute
an Event of Default.
28. LENDER'S APPROVAL
This Lease is subject to the approval of the lender furnishing the
permanent loan for the Building. If such lender disapproves of this Lease within
twenty (20) days after the execution hereof, Landlord shall have the right to
cancel this Lease, without any liability whatsoever, by written notice of
cancellation given to Tenant within ten (10) days after such disapproval. If no
written notice of cancellation is given to Tenant within thirty (30) days of the
execution of this Lease, this Lease shall continue in full force and effect.
29. BROKERAGE
Tenant hereby represents and warrants that Tenant has not employed any
broker in regard to this Lease and that Tenant has no knowledge of any broker
being instrumental in bringing about this Lease transaction except Corum Real
Estate Group, Inc. which has acted as Landlord's leasing agent and Remax
Alliance, Inc., which has acted as Tenant's leasing agent. Tenant shall
indemnify Landlord against any expense incurred by Landlord as a result of any
claim for brokerage or other commissions made by any other broker, finder, or
agent, whether or not meritorious, employed by Tenant or claiming by, through,
or under Tenant. Tenant acknowledges that Landlord shall not be liable for any
representations by such brokers regarding the Premises, Building, the Other
Building, the Building Complex or this lease transaction.
Page 32
30. TIME OF ESSENCE
Time is of the essence herein and, unless waived by Landlord (which it
shall have the right, but not the obligation, to so do), this Lease is
contingent upon execution and delivery by Tenant to Landlord no later than 5:00
p.m., June 29, 2005.
31. EXHIBITS
All exhibits attached hereto are made a part hereof and incorporated herein
by reference.
32. INDUCEMENT RECAPTURE IN EVENT OF DEFAULT
Any agreement by Landlord for free or abated rent or other charges
applicable to the Premises, or for the giving or paying by Landlord to or for
Tenant of any cash or other bonus, inducement or consideration for Tenant's
entering into this Lease, including, but not limited to, any tenant finish
allowance or broker's commissions, all of which concessions are hereinafter
referred to as "Inducement Provisions" shall be deemed conditioned upon Tenant's
full and faithful performance of all of the terms, covenants and conditions of
this Lease to be performed or observed by Tenant during the term hereof as the
same may be extended. Upon the occurrence of a Default (as defined in Paragraph
20) of this Lease by Tenant, any such Inducement Provision shall automatically
be deemed deleted from this Lease and of no further force or effect, and any
rent, other charge, bonus, inducement or consideration theretofore abated, given
or paid by Landlord under such an Inducement Provision shall be immediately due
and payable by Tenant to Landlord, and recoverable by Landlord, as additional
rent due under this Lease, notwithstanding any subsequent cure of said event of
default by Tenant. The acceptance by Landlord of rent or the cure of the event
of default which initiated the operation of this Paragraph 32 shall not be
deemed a waiver by Landlord of the provisions of this Paragraph 32 unless
specifically so stated in writing by Landlord at the time of such acceptance.
33. EARLY TERMINATION
Tenant shall have a one time right to terminate this Lease effective on
September 1, 2008, provided (i) Tenant is not then in default of any of the
terms, covenants, conditions, provisions or agreements of the Lease, or any
amendments thereto; (ii) Tenant shall have given Landlord written notice of its
election to so terminate on or before May 1, 2008 ("Termination Notice"), which
termination shall be effective, if given, on September 1, 2008 ("Early
Termination Date"); and (iii) within the time frame set forth below, Tenant
delivers the Termination Fee (described below) in cash or certified funds to
Landlord. If Tenant meets the conditions described above and elects to terminate
this Lease, the term of the Lease shall expire and come to an end on the Early
Termination Date and Tenant shall surrender the Premises to Landlord in the
condition required by the Lease. Failure of the Tenant to give timely notice of
its election to terminate this Lease or to pay the Termination Fee as set forth
herein shall operate as a waiver of the termination right and this Lease shall
continue to be fully enforceable. As consideration for the early termination
right, Tenant shall pay a termination fee ("Termination Fee") to Landlord. The
Termination Fee shall be (i) all unamortized Tenant Improvement Costs,
unamortized free rent and all unamortized brokerage commissions paid by Landlord
during the entire term of the Lease, plus (ii) two (2) months of the
Page 33
then current monthly Base Rent. Upon written request from Tenant during the
third Lease year only, Landlord shall certify the above amounts to Tenant. The
amortizations of the Termination Fee shall be on a straight-line basis over five
(5) years at a rate of ten percent (10%) per annum with zero salvage value.
Tenant shall pay all of the Termination Fee upon delivery of the Termination
Notice. The Tenant's obligation to pay the Termination Fee set forth above, as
well as other amounts due and owing under the Lease, and any amendments thereto,
shall survive the expiration or termination of the Lease or the early
termination of Tenant's right to possession under the Lease. On or prior to the
Early Termination Date, Tenant will surrender possession of the Premises, to
Landlord in accordance with the provisions of the Lease, as if the Early
Termination Date were the expiration date of the Lease. Upon the Early
Termination Date, both Landlord and Tenant shall be relieved of their
obligations under the Lease, except those accruing prior to the Early
Termination Date. The early termination rights of the Tenant set forth herein do
not apply to any additional space added to the Premises from and after the date
hereof unless expressly agreed to by Landlord in writing. The early termination
right of the Tenant set forth herein is personal and is not transferable to any
permitted assignee or subtenant.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed the day and year first above written.
TENANT: LANDLORD:
GRYPHON GOLD CORPORATION CORUM UNION INVESTORS LLC,
a Nevada corporation a Colorado limited liability company
By: /s/ Xxxxx Xxxxxx By: /s/ V. Xxxxxxx Xxxxxx
--------------------------------- ---------------------------------
Name: Xxxxx Xxxxxx Name: V. Xxxxxxx Xxxxxx
Title: President Its: Manager
ATTEST:
By: Illegible
---------------------------------
Title:
------------------------------
Page 34
EXHIBIT A
DEPICTION OF PREMISES
[TO BE ATTACHED]
Page 35
EXHIBIT B
LEGAL DESCRIPTION OF THE REAL PROPERTY
Lot 3,
1st Amended Replat of Xxx 0, Xxxxx X, Xxxxx Xxxxxx,
recorded October 29, 1981 at Reception Xx. 00000000,
Xxxxxx xx Xxxxxxxxx,
Xxxxx of Colorado
TOGETHER WITH AND INCLUDING:
Lot 1,
1st Amended Replat of Xxx 0, Xxxxx X, Xxxxx Xxxxxx,
recorded October 29, 1981 at Reception Xx. 00000000,
Xxxxxx xx Xxxxxxxxx,
Xxxxx of Colorado.
TOGETHER WITH AND INCLUDING:
A perpetual, non-exclusive easement for ingress and egress and parking as more
particularly described in Declaration of Reciprocal Parking Easement recorded
August 7, 1981 at Reception No. 81057959, ratified by Ratification of Easement
recorded December 22, 1983 at Reception No. 83121398 and as amended and restated
in Reciprocal Easement and Property Agreement recorded December 27, 1983 at
Reception No. 83122395 of the real estate records of the County of Jefferson,
State of Colorado.
TOGETHER WITH AND INCLUDING:
Non-exclusive easement for ingress, egress and parking as more particularly
described in Reciprocal Easement of Agreement dated April 11, 1978, recorded May
1, 1978 at Reception No. 78038378, as ratified by Ratification of Reciprocal
Easement Agreement dated September 27, 1995, recorded September 29, 1995, at
Reception No. F0123047 of the real estate records of the County of Jefferson,
State of Colorado.
Page 36
EXHIBIT C
WORK LETTER
June 28, 2005
Re: Premises: Approximately 1,384 rentable square feet of space comprising a
portion of the 3rd floor (the "Premises")
Tenant agrees to accept the Premises in its "as-is" condition. Tenant is
not entitled to any improvements thereto or thereof or to any allowance or
credit for improvements thereto or thereof, except as set forth herein. Landlord
agrees to act as construction manager for construction of certain tenant
improvements and Landlord agrees to deliver the Premises to the Tenant and
construct the tenant improvements at its sole cost ("Landlord Work") in
reasonable accordance with the plans and specifications approved by Landlord and
Tenant dated June 27, 2005 prepared by Waring Associates excluding all alternate
items shown in the keyed notes except those alternate items detailed in keyed
notes #2 and #4 which shall be included ("Approved Plans and Specifications").
Landlord shall select the contractor to complete the Landlord Work per the
Approved Plans and Specifications, and except as set forth herein, shall have no
further obligations thereafter with respect to repair or replacement of items in
the Premises except as set forth in the Lease. Landlord shall use Building
Standard construction materials within the Premises.
Tenant may elect to have a windowed door installed in the Conference room
in lieu of a solid wood door. All additional costs relating to the windowed door
pursuant to this paragraph shall be borne solely by Tenant and will be completed
by Landlord's contractor(s) at Tenant's sole cost and expense. Prior to the
installation of the windowed door, Landlord will provide Tenant with a cost
proposal and specifications for Tenant's review and consideration. Tenant shall
have three (3) business days to respond to such proposal and specifications in
writing. Unless Landlord receives Tenant's written authorization within such
three (3) business day period, the proposal and specifications shall be deemed
rejected by Tenant and the Building Standard door shall remain as provided in
the Approved Plans and Specifications. Tenant shall pay the incremental costs
pursuant to this paragraph, if any, within ten (10) calendar days after receipt
of billing from Landlord.
If Tenant changes any aspect of the Approved Plans and Specifications, the
increased cost of the Landlord Work will be solely at Tenant's cost. Tenant will
not be entitled to any reduction in the cost for the Premises as a result of its
changes or other savings that Landlord may effect.
Prior to the date Landlord delivers the Premises, Tenant will conduct a
walk-through inspection of the Premises with Landlord and prepare a punch list
of items needing additional work by Landlord. Other than the items specified in
the punch list, by taking possession of the Premises, Tenant will be deemed to
have accepted the Premises in their condition on the date of delivery of
possession and to have acknowledged that Landlord has completed the Landlord
Work as required by this Work Letter and that there are no items needing
additional work or repair. The punch list will not include any damage to the
Premises caused by Tenant's move-in or early access, if permitted.
Page 37
Damage caused by Tenant will be repaired or corrected by Landlord at Tenant's
expense. Tenant acknowledges that neither Landlord nor its agents or employees
have made any representations or warranties as to the suitability or fitness of
the Premises for the conduct of Tenant's business or for any other purpose, nor
has Landlord or its agents or employees agreed to undertake any alterations or
construct any tenant improvements to the Premises except as expressly provided
in this Lease and this Work Letter. If Tenant fails to submit a punch list to
Landlord prior to the Commencement Date, it will be deemed that there are no
items needing additional work or repair. Landlord's contractor will complete all
reasonable punch list items within thirty (30) days after the walk-through
inspection or as soon as practicable after such walk-through.
Notwithstanding any provision contained herein to the contrary, all cabling
and moving expenses shall be at the sole cost of Tenant.
Landlord agrees to use all commercially reasonable efforts to cause the
Landlord Work to be substantially completed prior to the Commencement Date other
than punch list items which shall be corrected within thirty (30) days
thereafter. All tenant improvements shall be performed by Landlord during
regular business hours.
Page 38
EXHIBIT D
RULES AND REGULATIONS
A. The following rules and regulations shall be and are hereby made a part
of the Lease and Tenant agrees that Tenant's employees and agents or any others
permitted by Tenant to occupy or enter the Premises will at all times abide by
said rules and regulations, to wit:
(1) OBSTRUCTION. The sidewalks, entries, passages, corridors,
stairways and elevators of the Building complex shall not be obstructed by
Tenant or Tenant's agents or employees or used for any purpose other than
ingress and egress to and from the Premises, it being understood and agreed that
such access may be obtained only via the elevators in the lobby of the Building.
(2) DELIVERIES. Furniture, equipment, or supplies will be moved in or
out of the Building only upon the elevator designated by Landlord only during
such hours and in such manner as may be prescribed by Landlord and then only
after forty-eight (48) hours' notice delivered to the Building Manager. Failure
in doing so may result in further delay of such move. The Landlord shall have
the right to approve or disapprove the movers or moving company employed by
Tenant and Tenant shall cause said movers to use only the loading facilities and
elevator designated by Landlord. In the event Tenant's movers damage the
elevator or any part of the Building, Tenant shall forthwith pay to Landlord the
amount required to repair said damage.
(3) HEAVY ARTICLES. No safe or article, the weight of which may
constitute a hazard or damage to the Building or the Building's equipment, shall
be moved into the 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 Premises.
Tenant shall not place any live load exceeding forty (40) pounds per square foot
on the floor of the Building, or in any way deface the Building or any part
thereof. Tenant understands that they will be fully liable for any damages to
the Building or losses sustained by landlord by reason of any overloading by
Tenant.
(4) CHAIR PADS. During the entire term of this Lease, Tenant shall, at
Tenant's expense, install and maintain under each and every caster chair a chair
pad to protect the carpeting.
(5) SIGNAGE. No sign, advertisement, or notice shall be inscribed,
painted, or affixed on any part of the inside or outside of the Building unless
of such color, size, and style and in such place upon or in the Building as
shall be first designated by Landlord in writing but there shall be no
obligation or duty on Landlord to allow any sign, advertisement or notice to be
inscribed, painted, or affixed on any part of the inside or outside of the
Building. Tenant shall be allowed one line on a Building directory in a
conspicuous place to be provided by Landlord. Any necessary revision in the
directory will be made by Landlord at Tenant's expense within a reasonable time
after notice from Tenant of the change making the revision necessary. Landlord
shall also provide one suite identification sign adjacent to the main entry door
of the Premises in Landlord's standard form. No furniture shall be placed in
front of the Building or in any lobby or corridor of the Building (whether
included wholly within the Premises, or otherwise), without the prior written
consent of
Page 39
Landlord. Landlord shall have the right to remove all non-permitted signs and
furniture, without notice to Tenant, at the expense of Tenant.
(6) HAZARDOUS OPERATIONS AND ITEMS. Tenant shall not install or
operate any steam or gas engine or boiler or carry on any mechanical business in
the Premises. 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. Tenant shall not
do or permit anything to be done in the 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, 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 any 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 where the Building
is located.
(7) MAINTENANCE. Tenant shall not employ any person or persons other
than the janitor of Landlord for the purpose of cleaning or taking care of the
Premises, without the prior written consent of Landlord. Landlord shall be in no
way responsible to Tenant for any loss of property from the Premises, however
occurring, or for any damage done to Tenant's furniture or equipment by the
janitor or any of the janitor's staff or by any other person or persons
whomsoever. The janitor of the Building may at all times keep a passkey and
other agents of Landlord shall at all times be allowed admittance to the
Premises. Landlord shall have the right to control and operate the public
portions of the Building, and the public facilities, and heating and air
conditioning, as well as facilities furnished for the common use of the tenants,
in such manner as it deems best for the benefit of the tenants generally.
(8) USE OF WATER FIXTURES. Water closets and other water fixtures
shall not be used for any purpose other than that for which they were intended
and any damage resulting to them from misuse on the part of Tenant or Tenant's
agents or employees shall be paid for by Tenant. No person shall waste water by
tying back or wedging the faucets or in any other manner.
(9) ANIMALS AND NOISE. No animals shall be allowed in the offices,
halls, corridors, and elevators in the Building. No person shall disturb the
occupants of the Building or adjoining buildings or premises by the use of any
radio, sound equipment, or musical instrument or by the making of loud or
improper noises.
(10) BICYCLES. Bicycles or other vehicles shall not be permitted in
the offices, halls, corridors, and elevators in the Building nor shall any
obstruction of sidewalks or entrances of the Building be permitted.
(11) EXTERIOR. Tenant shall not allow anything to be placed on the
outside of the Building, nor shall anything be thrown by Tenant or Tenant's
agents or employees out of the windows or doors or down the corridors, elevator
shafts, or ventilating ducts or shafts of the Building. Tenant, except in case
of fire or other emergency, shall not open any outside window.
Page 40
(12) LOCKS. No additional lock or locks shall be placed by Tenant on
any door in the Building, unless written consent of Landlord shall first have
been obtained. Two keys to the Premises and the toilet rooms, if locked by
Landlord, will be furnished by Landlord and neither Tenant nor Tenant's agents
or employees shall have any duplicate keys made. Landlord shall supply Tenant
with such additional keys as Tenant may require at Tenant's sole cost and
expense. At the termination of this tenancy, Tenant shall promptly return to
Landlord all keys to offices, toilet rooms, or vaults. Tenant shall see that the
windows and doors of the Premises are closed and securely locked before leaving
the Building. Tenant must observe strict care and caution that all water faucets
or other apparatus are entirely shut off before Tenant and Tenant's employees
leave the Building and that lights and electrical equipment shall likewise be
carefully shut off when feasible, so as to prevent waste or damage. Tenant shall
be responsible for all injuries sustained by other tenants and occupants of the
Building, and Landlord as a result of Tenant's failure to exercise said due
care. Tenant shall exercise due care in protecting the Premises from theft,
robbery or pilferage.
(13) WINDOWS. Tenant shall not place anything or allow anything to be
placed near the glass of any window, door, partition or wall which may appear
unsightly from outside the Premises. No window shades, blinds, screens,
draperies or other window coverings will be attached or detached by Tenant
without Landlord's prior written consent. Tenant agrees to abide by Landlord's
rules with respect to maintaining uniform curtains, draperies and linings, or
blinds at all windows and hallways.
(14) TELEPHONE. If any Tenant desires telegraphic, telephonic, or
other electric connections, Landlord or Landlord's agents will direct the
electricians as to where and how the wires may be introduced. Without such
directions, no boring or cutting for wires will be permitted. Any such
installation and connection shall be made at Tenant's expense.
(15) PAINTING AND DECORATING. Any painting or decorating, as may be
agreed to be done by and at the expense of Landlord, shall be done during
regular weekday working hours. Should Tenant desire such work on Saturdays,
Sundays, legal holidays, or outside of regulation working hours, Tenant shall
pay for the extra cost thereof.
(16) DEFACING OF PREMISES. Except as permitted by Landlord, Tenant
shall not xxxx upon, paint signs upon, cut, drill into, drive nails or screws
into, or in any way deface the walls, ceilings, partitions, or floors of the
Premises or of the Building and any defacement, damage, or injury caused by
Tenant or Tenant's agents or employees shall be paid for by Tenant.
(17) ENTRY. Landlord shall at all times have the right, by Landlord's
officers or agents, to enter the Premises and show the same to persons wishing
to lease them.
(18) TRASH. Tenant shall not allow anything to be placed on the
outside of the Building, nor shall be thrown by Tenant out of the windows or
doors or down the corridors, elevators shaft or ventilating ducts or shafts of
the Building. All trash shall be placed in receptacles provided by Tenant on the
Premises or in any receptacles provided by Landlord for the Building.
(19) SOLICITATION; FOOD AND BEVERAGES. Landlord reserves the right to
restrict, control or prohibit canvassing, soliciting and peddling within the
Building. Tenant shall not grant
Page 41
any concessions, licenses or permission for the sale or taking order for food or
services or merchandise on the Premises, nor install or permit the installation
or use of any machinery or equipment for dispensing goods or foods or beverages
in the Building, except beverage machines intended for the use only by Tenant's
employees, nor permit the preparation, serving, distribution or delivery of food
or beverages in the Premises, except for the warming of pre-prepared food by
Tenant's employees in microwave ovens, without the approval of Landlord and in
compliance with arrangements prescribed by Landlord. Only persons approved by
Landlord shall be permitted to serve, distribute, or deliver food and beverages
within the Building, or to use the elevators or public areas of the Building for
that purpose.
(20) BREACH. Landlord shall not be liable to Tenant for violation of
any said Rules and Regulations or the breach of any covenant or condition in any
Lease by any tenant in the Building. The failure of the Landlord to seek redress
for violation of, or insist upon the strict performance of any covenants or
conditions of this Lease or any of the Rules and Regulations set forth above 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 breach
of any covenant of this Lease or breach of these Rules and Regulations shall not
be deemed a waiver of such breach. The failure of Landlord to enforce any of
these Rules and Regulations as set forth above or hereafter adopted against
Tenant and/or any other tenant in the Building, shall not be deemed a waiver of
any such Rules and Regulations.
(21) AMENDMENT. Tenant agrees that Landlord may amend, modify, delete,
or add new and additional rules and regulations of the use and care of the
Premises and the Building Complex. Tenant agrees to comply with all such rules
and regulations upon notice to Tenant from Landlord thereof. In the event of any
breach of any of the rules and regulations herein set forth or any amendments,
modifications, or additions thereto, Landlord shall have all remedies in this
Lease provided for in the Event of Default by Tenant.
Page 42
EXHIBIT E
PARKING
A. Tenant shall have the right to use up to three (3) unassigned covered
parking spaces (the "Unassigned Spaces") in the parking structure, the number of
which shall be at Tenant's sole election, and two (2) uncovered spaces in a
surface parking area constructed on the real property described in Exhibit B to
this Lease on the terms and conditions contained herein. The rights of Tenant to
the Unassigned Spaces as granted by Landlord shall be referred to as the
"Parking Privileges."
B. Tenant's right to the Parking Privileges shall commence at the
commencement of the Primary Lease Term or on the date Tenant takes possession of
the Premises for the purpose of conducting its usual business therein and shall
continue for the term of the Lease unless sooner terminated or extended, or
unless Tenant fails to timely pay the Fee as set forth below. The Parking
Privileges shall automatically terminate upon the expiration or earlier
termination of the Primary Lease Term or any extensions thereof or upon the
termination of Tenant's right to possession of the Premises.
C. Tenant shall pay to Landlord a parking fee for the Unassigned Spaces
(the "Fee") in an amount equal to the monthly charge per parking space
established by Landlord from time to time multiplied by the number of Unassigned
Spaces to which Tenant is then entitled. The current monthly charge per covered
parking space is Twenty-Five Dollars ($25.00). Notwithstanding the foregoing,
there shall be no charge for the covered parking spaces for the first twelve
(12) months of the Primary Lease Term. There is no current charge for uncovered
parking spaces. Landlord shall be entitled to increase or decrease the charge
per parking space from time to time upon not less than one month's written
notice to Tenant of such increase or decrease. All payments of the Fee shall be
made in advance, without notice or set off, at Landlord's Notice Address, or at
such place as Landlord from time to time designates in writing. Tenant shall pay
the Fee on the first day of the Primary Lease Term and on the first day of each
succeeding calendar month during the Primary Lease Term or any extension
thereof. If Tenant takes occupancy of the Premises on a day other than the first
day of a calendar month, the Fee for the fractional month shall be prorated on a
daily basis and shall be paid on the date Tenant takes occupancy of the
Premises. If Tenant fails to pay the Fee in a timely manner, Landlord, at its
election, may cancel Tenant's right to use the number of Unassigned Spaces for
which Tenant has failed to pay and shall notify Tenant of such cancellation. If
the Parking Privileges, or a portion thereof, are cancelled, Tenant shall remain
liable to Landlord for all Fees and other sums accrued and unpaid hereunder to
the date of such cancellation. The Fee for the Unassigned Spaces shall be due
and payable in full each month regardless of whether Tenant actually uses all or
only a portion of the Unassigned Spaces allocated for Tenant each month.
D. Landlord shall have the right at any time to change the arrangement or
location of or to regulate the use of Unassigned Spaces without incurring any
liability to Tenant or entitling Tenant to any abatement of the Fee. Among other
things, Landlord shall be entitled to assign designated areas of the parking
structure and surface lot for use by particular persons or groups of persons and
Tenant shall refrain from parking in such spaces. Tenant acknowledges that the
Unassigned Spaces will not be individually designated or reserved for use by
Tenant and that Tenant will use the
Page 43
Unassigned Spaces in the parking structure and surface lot in common with all
persons to whom or which Landlord grants the right to use the parking structure
and surface lot.
E. In addition to the Rules and Regulations set forth in Exhibit D to the
Lease, the use of the Unassigned Spaces is subject to the following rules:
1. Tenant shall designate use of the Unassigned Spaces to specific
individuals employed by Tenant ("Designated Users"), but Tenant shall remain
responsible for payment of the Fee and all other obligations hereunder. Within
five (5) business days after Landlord's request, Tenant agrees to provide
Landlord with a listing of all vehicles of Designated Users, including names of
vehicle owners, vehicle models, colors, and license plate numbers, and Tenant
shall provide Landlord with revised listing promptly after any change to the
listing. Tenant shall deliver to Tenant's Designated Users parking decals
provided by Landlord which decals shall at all times be displayed prominently on
the vehicles of Designated Users. Landlord shall have the right to directly ban
any Designated User from further use of any of the parking spaces for violation
of the rules for the use of Unassigned Spaces.
2. Tenant and Designated Users shall park only in parking spaces and
not on ramps, corridors, approaches, or other areas designated as "no parking"
areas.
3. Tenant and Designated Users shall observe the special hours of
opening, closing, and non-use of the parking structure and the surface lot when
closings are necessitated for repairs, cleaning, and rehabilitations. Should any
repair or rehabilitation result in Tenant not being provided the Unassigned
Spaces in the parking structure, surface lot, or designated alternate parking
facility, the abatement of Tenant's obligation to pay the Fee during the period
the same are unavailable shall constitute Tenant's sole remedy in the event of
such unavailability.
4. Tenant and Designated Users shall use the Unassigned Spaces only
for automobile parking.
5. Tenant and Designated Users shall observe all posted vehicle height
limitations.
6. Tenant and Designated Users shall not allow unauthorized vehicles
to use the Unassigned Spaces and, except for emergencies, shall not repair nor
authorize service to vehicles parked in the parking structure or in the surface
parking area.
F. If any portion of the parking structure or the surface lot shall be
damaged by fire or other casualty or shall be taken by right of eminent domain
or by condemnation or shall be conveyed in lieu of any such taking, then the
Parking Privileges shall automatically cease and terminate and the Fee and all
other sums payable hereunder shall be duly apportioned to the date of such
casualty, taking, or conveyance. Tenant thereupon shall surrender to Landlord
the Unassigned Spaces and all interest therein, and Landlord may re-enter and
take possession of the Unassigned Spaces.
G. Tenant shall not be permitted to assign the Unassigned Spaces or any
interest herein or permit the Unassigned Spaces or any part thereof to be used
by others without the prior written
Page 44
consent of Landlord, which consent may be granted or withheld in Landlord's sole
discretion. Notwithstanding the foregoing, if a proposed assignee or user is a
permitted assignee, sublessee, or occupant under the terms of this Lease,
Landlord's consent as to such assignment or sublease shall be deemed consent to
the assignment of the Unassigned Spaces. Tenant shall remain primarily liable
for the performance of the obligations of the Tenant hereunder notwithstanding
any assignment or occupancy arrangement permitted or consented to by Landlord.
H. Neither Landlord nor its agents or employees shall be liable for any
damage, fire, theft or loss to vehicles or other properties or injuries to
persons occurring in the parking structure or service parking area or arising
out of the use of the Unassigned Spaces whether caused by theft, collision,
moving vehicle, explosion or any other activity of occurrence in such parking
areas. Tenant and/or its Designated Users of the Spaces assume the risk of such
loss or damage and shall indemnify, defend and hold Landlord, its agents and
employees harmless from and against any and all claims and damages incurred by
Landlord, its agents and employees arising from Tenant's or its Designated
Users' use of the parking areas or the Unassigned Spaces, including all costs,
attorneys' fees, expenses and liability arising out of any such claim or action.
Tenant, at Landlord's request, shall obtain a written agreement from each
Designated User agreeing to the terms of this Exhibit E and Landlord's rules for
operation of the parking areas. If Tenant shall fail to obtain such agreement
and deliver it to Landlord, Tenant shall assume all obligations set forth in
this Exhibit E or Landlord's rules for such Designated User.
Page 45
INDEX TO OFFICE BUILDING LEASE
CORUM UNION INVESTORS LLC,
A COLORADO LIMITED LIABILITY COMPANY
(AS LANDLORD)
AND
GRYPHON GOLD CORPORATION, A NEVADA CORPORATION
(as Tenant)
PARAGRAPH TITLE PAGE
--------------- ----
1. DEFINITIONS................................................................. 2
2. PREMISES.................................................................... 4
3. RENT........................................................................ 4
4. COMPLETION OR REMODELING OF THE PREMISES.................................... 4
5. OPERATING EXPENSES.......................................................... 5
6. SERVICES.................................................................... 10
7. QUIET ENJOYMENT............................................................. 12
8. DEPOSIT..................................................................... 12
9. USE......................................................................... 13
10. ALTERATIONS AND REENTRY BY LANDLORD......................................... 14
11. ALTERATIONS AND REPAIRS BY TENANT........................................... 14
12. MECHANICS' LIENS............................................................ 16
13. SUBLETTING AND ASSIGNMENT................................................... 16
14. DAMAGE TO PROPERTY AND INDEMNITY BY TENANT.................................. 18
15. INSURANCE AND WAIVER OF SUBROGATION......................................... 19
i
16. SURRENDER AND NOTICE........................................................ 20
17. ACCEPTANCE OF PREMISES BY TENANT............................................ 20
18. CASUALTY AND RESTORATION OF PREMISES........................................ 20
19. CONDEMNATION................................................................ 21
20. DEFAULT BY TENANT........................................................... 22
21. SUBORDINATION AND ATTORNMENT................................................ 26
22. HOLDING OVER: TENANCY MONTH-TO-MONTH........................................ 27
23. PAYMENTS AFTER TERMINATION.................................................. 27
24. STATEMENT OF PERFORMANCE.................................................... 27
25. MISCELLANEOUS............................................................... 28
26. AUTHORITIES FOR ACTION AND NOTICE........................................... 32
27. LANDLORD'S RIGHT TO SUBSTITUTE PREMISES..................................... 32
28. LENDER'S APPROVAL........................................................... 33
29. BROKERAGE................................................................... 33
30. TIME OF ESSENCE............................................................. 33
31. EXHIBITS.................................................................... 33
32. INDUCEMENT RECAPTURE IN EVENT OF DEFAULT.................................... 33
33. EARLY TERMINATION........................................................... 34
EXHIBIT A DEPICTION OF PREMISES
EXHIBIT B LEGAL DESCRIPTION OF THE REAL PROPERTY
EXHIBIT C WORK LETTER
EXHIBIT D RULES AND REGULATIONS
EXHIBIT E PARKING
ii
