OFFICE LEASE

 

 

 

DENVER PLACE

RANCHER ENERGY CORP.

OFFICE LEASE

 

 

 

 

DENVER PLACE

OFFICE LEASE

I N D E X

 

 

				Page
1.	THE LEASED PREMISES			1
2.	DEFINITIONS			1
3.	TERM OF LEASE			2
4.	BASE RENT			2
5.	COMMENCEMENT AND CONDUCT OF BUSINESS			3
6.	QUIET ENJOYMENT			3
7.	SERVICES			3
7.01	Standard Services			3
7.02	Additional Services			4
7.03	Interruption of Service			5
7.04	Telephone Service Paid by Tenant			5
8.	BUSINESS TAXES, ETC			6
9.	METERS			6
10.	USE OF ELECTRICITY			6
11.	REPAIRS AND MAINTENANCE			6
12.	ASSIGNMENT, SUBLETTING, PARTING WITH POSSESSION			7
13.	RULES AND REGULATIONS			10
14.	USE OF LEASED PREMISES			10
15.	TENANT'S INSURANCE			10
16.	CANCELLATION OF INSURANCE			11
17.	OBSERVANCE OF LAW			12
18.	WASTE AND NUISANCE			12
19.	ENTRY BY LANDLORD			12
20.	INDEMNIFICATION OF LANDLORD			12
21.	EXHIBITING PREMISES			13
22.	ALTERATIONS			13
23.	GLASS			14
24.	SIGNS AND ADVERTISING			14
25.	NAME OF BUILDING			14
26.	SUBORDINATION AND ATTORNMENT			14
27.	ACCEPTANCE OF PREMISES			14
28.	ESTOPPEL CERTIFICATES			15
29.	FIXTURES			15
30.	LANDLORD'S INSURANCE			15
31.	FIRES, ETC			16
32.	CONDEMNATION			16
33.	LOSS AND DAMAGE			17
34.	DELAYS			17
35.	DEFAULT			17
36.	REMEDIES OF LANDLORD			18
37.	HOLDING OVER			20
38	DIRECTORY BOARD			21
39.	TRANSFER BY LANDLORD			21
40.	NOTICE			21
41.	GOVERNING LAW			22
42.	LEASE ENTIRE AGREEMENT			22
43.	BINDING EFFECT			22
44.	SECURITY DEPOSIT			22
45.	INTERPRETATION			22
46.	SEVERABILITY			23
47.	INDEPENDENT COVENANTS			23
48.	ADDITIONAL NOTICES			23
49.	GOVERNMENTALLY REQUIRED IMPROVEMENTS			23

 

Addendum
Exhibit A	Leased Premises Diagram
Exhibit A-1	Layout Plans (to be attached upon completion)
Exhibit A-2	Offer Space Diagram
Exhibit B	Rules and Regulations
Exhibit C	Lease Term Agreement
Exhibit D	Parking Agreement
Exhibit E	List of Landlord's Furniture
Exhibit E-1	Form of Bill of Sale

 

DENVER PLACE

 

Office Lease Facing Page

 

THIS OFFICE LEASE FACING PAGE, together with the General Lease Provisions and any Schedules or Riders and Lease Guaranties attached hereto, shall constitute the Lease between Tenant described below, as Tenant, and DENVER PLACE ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership, as Landlord, for the Leased Premises described below, made and entered into as of the Lease Date specified below.

 

 

BASE RENT:
Months 1-3:		$	0.00 per annum / $0.00 per month
Months 4-12:		$	114,445.56 per annum / $9,537.13 per month
Months 13-36:		$	120,314.52 per annum / $10,026.21 per month
Months 37-48:		$	129,117.96 per annum / $10,759.83 per month
Months 49-63:		$	132,052.56 per annum / $11,004.38 per month

 

 

 

Proportionate Share of applicable taxes and
Building Operating Expenses:			5,869
			754,288	=	0.78	%

 

 

 

GENERAL OFFICE LEASE PROVISIONS

 

WHEREAS, Landlord owns that building commonly known as Denver Place and located at 999 - 18th Street, Denver, Colorado 80202 (hereinafter called the "Building"), which is situated on a portion of real property being more particularly described as Lots 1 through 32 inclusive, Block 110, East Denver Subdivision City and County of Denver, State of Colorado. The Building, the land upon which the Building stands and the land and improvements surrounding the Building and designated from time to time by Landlord as land or common areas appurtenant to or servicing the Building, together with any other buildings or land located on the above-described real property are hereinafter called the "Real Property"; and

 

WHEREAS, Landlord has agreed to lease to Tenant the Leased Premises hereinafter on the terms and conditions hereinafter set forth:

 

1.      THE LEASED PREMISES

 

1.01   NOW, THEREFORE, in consideration of the rent and the covenants and agreements hereinafter made on the part of the Tenant to be paid, observed and performed, the Landlord has demised and leased and by these presents does demise and lease the Leased Premises described on the Office Lease Facing Page, attached hereto and depicted on the drawing attached hereto as Exhibit A and forming part hereof but excluding therefrom any part of the exterior face of the Building to the Tenant, together with the right of the Tenant in common with the Landlord, its other tenants, sub-tenants and invitees thereof to the nonexclusive use of the following portions of the Building:

 

(a)   the entrance foyer and lobby of the Building; and

 

(b)   the common corridors on the floor of the Building on which the Leased Premises are situated and other areas appurtenant to or servicing the Building, together with public entrance doors, halls, stairways, passages, elevators, shipping and receiving areas and lavatories in the Building, provided, however, that Landlord shall have the right from time to time to eliminate, substitute, build upon or rearrange all of items (a) and (b) above, including, but not limited to, the garden court on the third floor of the Building, as Landlord deems appropriate in its discretion.

 

2.      DEFINITIONS

 

2.01   In this Lease or on the Office Lease Facing Page, the following terms or words shall have the following meanings:

 

(a)   "Business Day" means any of the days from Monday to Friday excluding any nationally recognized holiday.

 

(b)   "Commencement Date" means the date so designated on the Office Lease Facing Page, attached hereto, or the date upon which the Landlord notifies the Tenant that the Leased Premises are ready for occupancy, whichever last occurs.

 

(c)   "Net Rentable Square Feet" or "Net Rentable Area", as the term is used throughout this Lease, for a multiple tenancy floor means the total square feet which is computed by measuring to the inside finish of permanent outer building walls, or to the center line of the glass if a portion of the outer building wall is glass, to the center line of corridor partitions, and to the center of partitions that separate the Leased Premises from adjoining rentable area. No deductions shall be made for columns and projections necessary to the Building.

 

(d)   "Net Rentable Square Feet" or "Net Rentable Area", as the term is used throughout this Lease, for a single tenancy floor, means the total square feet which is computed by measuring to the inside finish of permanent outer building walls, or from the center line of glass. Net Rentable Area shall include all area within outside walls less stairs, elevator shafts, flues, pipe shafts, and vertical ducts. No deductions shall be made for columns and projections necessary to the Building. Lavatories or public toilets within and exclusively serving only that floor, janitor closets, electrical closets, telephone closets, slop sinks and a proportionate share of main and second floor lobby areas shall be included in Net Rentable Area.

 

(e)   "Normal Business Hours" means the hours from 8 a.m. to 6 p.m. on Business Days and the hours 8 a.m. to 1 p.m. on Saturdays excluding nationally recognized holidays.

 

(f)   "Proportionate Share" means the amount so designated on the Office Lease Facing Page, attached hereto and calculated by dividing the Total Rentable Area as set forth on the Facing Page by 95% of the Total Rentable Area of the Building.

 

(g)   "Public Areas" means and shall include all square feet or areas on the floor less the Net Rentable square feet and less public stairs, public elevator shafts, flues, stacks, pipe shafts, vertical ducts and vents.

 

(h)   "Rent", as the term is used throughout this Lease, shall denote the "Base Rent," as is hereinafter defined, plus all other financial obligations of the Tenant hereunder which are herein described as "Additional Rental" or "Additional Rent."

 

(i)   "Term" means the number of months in the Lease Period, set forth on the Office Lease Facing Page attached hereto, to be computed from 12 o'clock noon on the Commencement Date and expiring at 12 o'clock noon the last day of such Lease Term.

 

(j)   "Total Rentable Area of the Leased Premises" means the total square feet of the Net Rentable Area of the Leased Premises and Tenant's Proportionate Share of the Public Areas on a multiple-tenancy floor; or the total square feet of the Net Rentable Area on a single-tenancy floor.

 

(k)   "Total Rentable Area of the Building" shall mean 754,288 square feet, which is 95% of the rentable area of the Building.

 

3.      TERM OF LEASE

 

3.01   Tenant shall have the right to have and hold the Leased Premises for and during the Term subject to the payment of the Base Rent and the Additional Rent and the full and timely performance by Tenant of the covenants and conditions hereinafter set forth. In the event that the Commencement Date has not occurred on or before December 15, 2006, then this Lease may be terminated by either party upon delivery of written notice to the other party, and in such event both parties hereto shall be released from all obligations hereunder; provided, however, that in the event the delay in the commencement of the Term is due to a Tenant Delay (hereinafter defined) Tenant shall not have the right to elect to terminate this Lease pursuant to the provisions of this Section 3.01. In the event that the actual Commencement Date of the Lease is other than as set forth on the Office Lease Facing Page, Landlord and Tenant shall execute a Lease Term Agreement in the form attached hereto as Exhibit C .

 

4.      BASE RENT

 

4.01   Tenant covenants and agrees to timely pay without notice, deduction, set-off or abatement to the Landlord, except as otherwise expressly provided in this Lease, at DENVER PLACE ASSOCIATES LIMITED PARTNERSHIP, A/R DEPARTMENT, DENVER, COLORADO 80256-0165, or such other address as Landlord may notify Tenant of in writing not less than thirty (30) days prior to the effective date of the change in address, yearly and every year during the Term hereof, the annual Base Rent, in lawful money of the United States, payable in monthly installments set forth on the Office Lease Facing Page, attached hereto, each month, in advance on the tenth (10th) day of each month during the Term hereof. If the Term hereof commences on any day other than the first day of the month, Base Rent for the fractions of a month at the commencement of the Term shall be adjusted pro rata on a per diem basis using a thirty (30) day month.

 

 

5.      COMMENCEMENT AND CONDUCT OF BUSINESS

 

5.01   Tenant shall occupy the Leased Premises in a reputable manner and in compliance with the provisions of this Lease and the requirements of all applicable governmental laws and regulations.

 

6.      QUIET ENJOYMENT

 

6.01   Landlord covenants that if, and so long as Tenant performs each and every covenant, agreement, term, provision and condition of this Lease on the part and on behalf of Tenant to be kept and performed, Tenant shall quietly enjoy its rights under this Lease without hindrance or molestation by Landlord, subject to the covenants, agreements, terms, provisions and conditions of this Lease.

 

7.      SERVICES

 

7.01   Standard Services .

 

(a)   Climate Control . Subject to any applicable law, rule, or governmental order or regulation, Landlord shall provide climate control to the Leased Premises during Normal Business Hours to maintain a temperature adequate for comfortable occupancy, except during the making of repairs, alterations or improvements, provided that the recommendations of Landlord's engineer regarding occupancy and use of the Leased Premises are complied with by Tenant, and provided that the Landlord shall have no responsibility or liability for failure to supply climate control service when stopped as aforesaid or when prevented from doing so by strikes or any cause beyond the Landlord's reasonable control, including failure of any utility company to provide the Building with appropriate utility service. The Tenant acknowledges that the Landlord has installed in the Building a system for the purpose of climate control, which system is designed to heat and cool during normal occupancy of the Leased Premises as general offices on the basis of the recommendation of Landlord's engineer regarding occupancy and use of the Leased Premises and based upon the window shading (which shading shall, unless otherwise consented to by Landlord, be uniform in the Building) being fully closed in those offices having exterior windows exposed to the sun and without regard to the Tenant's specific use thereof or the installation of any computers or data processing equipment.

 

(b)   Elevator Service .

 

(1)   Subject to the Rules and Regulations referred to in Section 13.01, the Landlord shall furnish to the Building in which the Leased Premises are located, except when repairs are being made, elevator service during Normal Business Hours, provided that the Tenant, its employees and all other persons using the same shall do so at their own risk.

 

(2)   There shall be no liability on the Landlord for any claim in respect of any failure by the Landlord to provide elevator service during any power failure or other cause beyond the control of the Landlord or by reason of the carrying out of any repairs, maintenance, or replacement of elevators, nor shall there be, as a result of the foregoing, any repayment of or reduction or abatement in the rent reserved hereby.

 

(c)   Janitorial Services . The Landlord shall cause, when reasonably necessary from time to time, the floors to be swept or vacuumed and windows to be cleaned and the desks, tables and other furniture of the Tenant to be dusted, trash removed (waste baskets), and replacement of fluorescent bulbs in Building standard lighting fixtures, all in keeping with a first class office building, provided, however, that Landlord shall not be responsible for any act of omission or commission on the part of the person or persons employed to perform such work; such work shall be done at the Landlord's direction without interference by the Tenant, its servants or employees.

 

(d)   Water and Electricity . Subject to any law, rule or governmental order or regulation, the Landlord shall make available domestic water and, if available, at Landlord's discretion, condenser water, in reasonable quantity and cause electric current to be supplied for lighting the Leased Premises and public halls and for the operation of office equipment, subject to the provisions of Sections 9 and 10 hereof.

 

7.02   Additional Services . The following services are being provided to the Leased Premises in addition to the standard services described in Section 7.01 above ("Additional Services") and the costs and expenses incurred by Landlord will be charged directly to Tenant as an Additional Services Charge and will not be included in the Operating Expenses for the Building:

 

(a)   Climate Control Alterations . Any use of the Leased Premises not in accordance with the design standards or arrangement of partitioning which interferes with the normal operation of the climate control system described in subsection 7.01(a) above may require changes or alterations in the system or ducts through which the same operates. Any changes or alterations so occasioned, if such changes can be accommodated by the Landlord's equipment, shall be made by the Tenant at its cost and expense but only with the prior written consent of the Landlord, first had and obtained (which consent shall not be unreasonably withheld, conditioned or delayed), and in accordance with drawings and specifications and by a contractor first approved in writing by the Landlord, at Tenant's cost and expense. If Tenant shall install, or cause to have installed partitions, equipment or fixtures after the Leased Premises have been balanced originally and such installation necessitates the re-balancing of the climate control equipment in the Leased Premises, the same will be performed by the Landlord at the Tenant's expense as Additional Services payable on demand, or Landlord may bill Tenant for such services with other Additional Services. The Tenant acknowledges that one (1) year may be required after the Tenant has fully occupied the Leased Premises in order to adjust and balance the climate control systems.

 

(b)   Excess Utility Use . If the Tenant's equipment requires utilities in excess of normal quantities set forth in Sections 9 and 10 of this Lease, any facilities to supply excess quantities, including, without limitation, additional risers, cabling, pipelines, or conduits, may be provided by the Landlord at the sole expense of the Tenant as Additional Services, and in accordance with Sections 9 and 10, subject to the following conditions:

 

(1)   the Landlord's certified electrical engineer or other consultants shall determine that such excess facilities are required by the Tenant's equipment;

 

(2)   it is within the capabilities of the Landlord and the existing structure to provide such excess utilities;

 

(3)   the Landlord shall have the right of refusal to supply in the event that the supplying of additional facilities shall in any way affect the operation of, the aesthetics of or structure of the Building, or in any way reduce the efficiency of existing electricity, water or other utility supplied to the Building as a part of the whole thereof;

 

(4)   the supplying of additional facilities in order to make the required utilities available to the Tenant shall be subject to compliance with all provisions of law including, without limitation, federal legislative enactments, ordinances and other governmental or municipal regulations which shall in any way relate to the work necessary to be undertaken to make said utilities available; and

 

(5)   the Tenant shall pay to the Landlord the cost of such excess services as Additional Services from time to time upon demand, or Landlord may bill Tenant for such services with other Additional Services, such excess services cost to be determined by the Landlord's certified, professional engineer for the supply of condenser water to the Leased Premises.

 

(c)   Non-Standard Equipment . In the event Tenant’s use of the Leased Premises includes the use of existing, or the installation of any new machines, equipment, or devices in the Leased Premises that do not constitute standard office equipment provided or available to all tenants of the Building, including, without limitation, refrigerators, dishwashers, garbage disposals, air conditioning units, heating units, computers, water heaters, and such other machines, equipment, or devices ("Non-Standard Equipment"), the maintenance, repair and replacement of all such Non-Standard Equipment located in the Leased Premises, regardless of whether such Non-Standard Equipment existed in the Leased Premises on the Commencement Date or such Non-Standard Equipment was placed in the Leased Premises after the Commencement Date, shall be made by Tenant at Tenant’s sole cost and expense. In the event Tenant fails to maintain, repair or replace any Non-Standard Equipment located in the Leased Premises, after ten (10) days written notice of such failure from Landlord, Landlord shall have the option (but not the obligation) to enter the Leased Premises to undertake the necessary maintenance, repairs or replacements of such Non-Standard Equipment and Tenant shall reimburse Landlord for all of Landlord’s costs and expense incurred in such maintenance, repair or replacement as Additional Rent.

 

(d)   Excess Janitorial Services . If Tenant requires any janitorial or cleaning services in excess of the amounts provided by Landlord according to subsection 7.01(c) (such as cleaning services beyond normal office janitorial services for kitchens, computer rooms, or other special use areas and carpet cleaning), Landlord will provide such excess services to Tenant within a reasonable period after Tenant's request is made to the manager of the Building, provided that such excess services are available from Landlord's regular janitorial or cleaning contractor. Tenant will pay the cost of such excess services as Additional Services. Landlord will also provide, within a reasonable period after Tenant's request is made to the manager of the Building, or at Tenant's cost and to the extent available to Landlord, replacement of bulbs, tubes, or ballasts in any Building non-standard lighting fixtures in the Leased Premises. Tenant will pay the costs of such services as Additional Services.

 

(e)   Excess Services . If Tenant requires any work, service, or materials performed for, or facilities or materials furnished to Tenant, to a greater extent or in a manner more favorable to Tenant than those performed for or furnished to other tenants of the Building, including, but not limited to, supplying paper towels, restocking recycling containers, hanging pictures or whiteboards, providing extra keys to the Leased Premises and any other work or services which relate to Tenant's use of the Leased Premises, Landlord will provide such excess services to Tenant within a reasonable period after Tenant's request is made to the manager of the Building provided that such excess services are available from the manager of the Building, or the contractors already retained by the manager of the Building. Tenant will pay the cost of such excess services as Additional Services.

 

7.03   Interruption of Service . Tenant agrees that Landlord shall not be liable for failure to supply any such heating, air conditioning, elevator or janitor services or electric current during any period when Landlord uses reasonable diligence to supply such services or current. It is understood that Landlord reserves the right to temporarily discontinue such services, or any of them, or such current at such time as may be necessary by reason of accident, unavailability of employees, repairs, alterations or improvements or whenever by reason of strikes, lockouts, riots, acts of God or any other happening beyond the control of Landlord. Landlord shall not be liable for damages to persons or property for any such discontinuance, nor shall such discontinuance in any way be construed as eviction of or cause an abatement of rent or operate to release Tenant from any of the Tenant's obligations hereunder. Landlord's obligation to furnish services or current shall be conditioned upon the availability of adequate energy sources from the public utility companies then servicing the downtown area of the City and County of Denver. Landlord shall have the right to reduce heating, cooling or lighting within the Leased Premises and in the public areas in the Building as required by any mandatory or voluntary fuel or energy program. Landlord shall have the right to enter upon the Leased Premises at all reasonable times after reasonable oral notice in order to make such repairs, alterations or adjustments as shall be necessary in order to comply with the provisions of any mandatory or voluntary fuel or energy saving allocation or similar statute, regulation or program. Notwithstanding the foregoing provisions of this Section 7.03, Base Rent shall be abated as provided below in the case Landlord fails to provide a service which Landlord has agreed to provide under this Section 7.02, if (i) the provision of the interruption of the service is within the reasonable control of Landlord, (ii) if such interruption continues for seven (7) consecutive business days, and (iii) as a result of such interruption Tenant is not able to use the Leased Premises (or the affected portion thereof) for the operation of Tenant’s business. In the event of the occurrences of the foregoing, the Base Rent for the Leased Premises (or, if only a portion of the Leased Premises is affected, prorated for such portion) shall be abated commencing on the eighth (8th) business day of such disruption until the service in question has been restored.

 

7.04   Telephone Service Paid by Tenant . Tenant shall separately arrange with the applicable local public authorities or utilities, as the case may be, for the furnishing of, and payment for all telephone services as may be required by Tenant in the use of the Leased Premises. Tenant shall directly pay for such telephone services, including the establishment and connection thereof, at the rates charged for such services by said authority or utility and the failure of Tenant to obtain or to continue to receive such services for any reason whatsoever shall not relieve Tenant of any of its obligations under this Lease.

 

 

8.      BUSINESS TAXES, ETC.

 

8.01   Tenant shall fully and timely pay all business and other taxes, charges, rates, duties, assessments and license fees levied, rates imposed, charged or assessed against or in respect of the Tenant's occupancy of the Leased Premises or in respect of the personal property, trade fixtures, furniture and facilities of the Tenant or the business or income of the Tenant on and from the Leased Premises, if any, as and when the same shall become due, and to indemnify and hold Landlord harmless from and against all payment of such taxes, charges, rates, duties, assessments and license fees and against all loss, costs, charges and expenses occasioned by or arising from any and all such taxes, rates, duties, assessments and license fees.

 

8.02   Tenant shall promptly deliver to Landlord for inspection at Landlord's option, upon written request of the Landlord, receipts for payment of all taxes, charges, rates, duties, assessments and licenses in respect of all improvements, equipment and facilities of the Tenant on or in the Leased Premises which were due and payable up to one (1) year prior to such request, and in any event to furnish to the Landlord, if requested by the Landlord, evidence, satisfactory to the Landlord of any such payments.

 

9.      METERS

 

9.01   Tenant shall pay as an Additional Services Charge, on demand, or Landlord may bill Tenant for such services with other Additional Services, the cost of any metering which may be requested by the Tenant to be installed by the Landlord in the Building for the purpose of determining any utility (including electricity and water) consumed in the Leased Premises or any metering which may be required by the Landlord to measure any excess usage of electricity, water or other utility or energy.

 

10.      USE OF ELECTRICITY

 

10.01   Tenant's use of electricity in the Leased Premises shall be for the operation of building standard lighting, electrical fixtures, desk-top computers and other office machines and lamps and shall not at any time exceed the capacity of any of the electrical conductors and equipment in or otherwise serving the Leased Premises.

 

10.02   In order to ensure that such capacity is not exceeded and to avert possible adverse effect upon the Building's electrical services, the Tenant shall not, without the Landlord's prior written consent in each instance, connect any additional fixtures, appliances or equipment (other than normal office electrical fixtures, lamps, desk-top computers and similar office machines) to the Building's electrical distribution system or make any alterations or additions to the electric system of the Leased Premises existing at the commencement of the Term. If the Landlord grants such consent, the cost of all additional risers and other equipment required therefor shall be charged to Tenant as an Additional Services Charge and paid by Tenant to Landlord upon demand, or Landlord may bill Tenant for such services with other Additional Services. Furthermore, Tenant shall, at Landlord's option, pay on demand as Additional Services, the cost of any electric current or other energy for the operation of heavy accounting equipment, copy equipment, computer equipment or other equipment requiring more than is necessary for normal business office use as determined by the Landlord.

 

11.      REPAIRS AND MAINTENANCE

 

11.01   If the Building, the elevators, boilers, engines, pipes and other apparatus, or members or elements of the Building (or any of them) used for the purpose of climate control of the Building or operating the elevators, or if the water pipes, drainage pipes, electric lighting or other equipment of the Building or the roof or outside walls of the Building or parking facilities of Landlord become damaged or are destroyed through the negligence, carelessness or misuse of the Tenant, its servants, agents, employees or anyone permitted by Tenant to be in the Building, or through Tenant, then the cost of the necessary repairs, replacements or alterations shall be borne by the Tenant who shall forthwith pay the same on demand to the Landlord as Additional Rent.

 

11.02   Tenant shall keep the Leased Premises in as good order, condition and repair as when they were entered upon, loss by fire or other casualty (unless caused by the negligence of Tenant, its agents, employees or invitees or the gross negligence or willful and wrongful acts of Landlord), unavoidable accident or ordinary wear and tear excepted. If Tenant fails to keep the Leased Premises in such good order, condition and repair as required hereunder to the satisfaction of Landlord, Landlord may restore the Leased Premises after three (3) business days prior written notice to Tenant (except in the event of an emergency or in the event there is a threat to the continuance of any insurance coverage in which case no prior written notice shall be required) to such good order and condition and make such repairs without liability to Tenant for any loss or damage that may accrue to Tenant's property or business by reason thereof, and upon completion thereof, Tenant shall pay to Landlord, as Additional Rent, upon demand, the cost of restoring the Leased Premises to such good order and condition and of the making of such repairs.

 

11.03   Tenant shall deliver, at the expiration of the Term hereof or sooner upon termination of the Term, the Leased Premises in good repair as aforesaid and in a state of broom cleanliness. In the event Tenant fails to vacate the Leased 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 Leased Premises.

 

11.04   Tenant shall leave the Leased Premises at the end of each Business Day in a reasonably tidy condition for the purpose of allowing the performance of the Landlord's cleaning services hereinabove described.

 

11.05   Landlord shall (subject to Articles 31 and 32 and Landlord's rights under Article 54 and except for ordinary wear and tear) maintain the exterior walls and roof and load bearing elements of the Building and perform routine maintenance in the Common Areas (hereinafter defined). Except for load bearing elements of the Building located within the Leased Premises, Landlord shall not be required to maintain or repair any portions of the Leased Premises.

 

12.      ASSIGNMENT, SUBLETTING, PARTING WITH POSSESSION

 

12.01   Tenant shall not, without the prior written consent of Landlord (which shall not be unreasoanbly withheld in the case of an assignment or subletting), (i) assign, convey or mortgage this Lease or any interest hereunder except to an Affiliate (hereinafter defined) who is not a Prohibited Entity (hereinafter defined); (ii) suffer to occur or permit to exist any assignment of this Lease to an entity which is not an Affiliate ("Non-Affiliate"), or any lien upon Tenant's interest hereunder, whether voluntarily, involuntarily or by operation of law; (iii) sublet the Leased Premises or any part thereof to a Non-Affiliate; (iv) permit the use of the Leased Premises by any parties other than Tenant, its Affiliates and their respective employees. Any such action on the part of Tenant without Landlord's consent, shall be void and of no effect. Landlord's consent to any assignment, subletting or transfer or any assignment, subletting or transfer permitted in this Article 12, or Landlord's election to accept any assignee, subtenant or transferee as the tenant hereunder and to collect rent from such assignee, subtenant or transferee shall not release Tenant or any subsequent tenant from any covenant or obligation under this Lease. Landlord shall be entitled to withhold consent to a proposed assignment arbitrarily if Landlord exercises the right hereinafter set out in Section 12.03. Landlord shall respond to a request by Tenant to sublet or assign within ten (10) business days after Landlord's receipt of such request and information pertaining to the proposed subtenant or assignee required under this Article 12. The sale of fifty percent (50%) or more of the stock of Tenant, if Tenant is a corporation, shall constitute an assignment of the Lease for purposes of this Section 12.01. Consent of the Landlord to an assignment or subletting shall not in any way be construed to relieve the Tenant from obtaining the consent of the Landlord to any further assignment or subletting. Without limitation of the circumstances in which Landlord's withholding of consent to an assignment or subletting shall not be unreasonable, it shall not be unreasonable for Landlord to withhold its consent if the reputation, financial responsibility, or business of the proposed assignee or subtenant is unsatisfactory to Landlord, or if Landlord deems such business to be not consonant with that of other tenants in the Building, or if the intended use by the proposed assignee or subtenant conflicts with any commitment made by Landlord to any other tenant in the Building, or if in Landlord's reasonable judgment the assignment or subletting will have financial consequences adverse to Landlord's interest, or if the proposed assignee or subtenant is a Prohibited Entity. Tenant shall not publish or otherwise disseminate any written advertising material in connection with any proposed assignment or sublease of all or any portion of the Leased Premises (the "Advertising") without Landlord's prior written approval of the same, which approval shall not be unreasonably withheld; provided, however, that no Advertising shall contain any reference to the price to be charged in connection with any proposed assignment or sublease.

 

12.02   For the purposes of this Lease, the following terms shall have the following meanings:

 

 

 

12.03   If Tenant requests Landlord's consent to an assignment of this Lease or to a subletting of the whole or any part of the Leased Premises to a Non-Affiliate, Tenant shall submit to Landlord a written statement, including, without limitation, the name of the proposed assignee or subtenant, a description of the terms and conditions of the proposed assignment or sublease, including the amount of rent Tenant will be charging the proposed assignee or subtenant, and such information as to the nature of its business and its financial responsibility and standing as Landlord may reasonably require, and the effective date of the proposed assignment. Upon receipt of such request and information from Tenant, Landlord shall have the right exercisable by notice in writing within fourteen (14) days after such receipt to cancel and terminate this Lease if the request is to assign this Lease or to sublet all of the Leased Premises or, if the request is to assign or sublet a portion of the Leased Premises to cancel and terminate the Lease with respect to such portion, in each case as of the date set forth in Landlord's notice of exercise of such right, which shall be neither less than sixty (60) nor more than one hundred and twenty (120) days following the giving of such notice. If Landlord shall exercise such right Tenant shall surrender possession of the entire Leased Premises or the portion which is the subject of the right, as the case may be, on the date set forth in such notice in accordance with the provisions of this Lease relating to surrender of the Leased Premises at the expiration of the Term. If this Lease shall be cancelled as to a portion of the Leased Premises only, the Rent payable by the Tenant under this Lease shall be abated proportionately. Tenant shall notify Landlord in writing of any subletting or assignment to an Affiliate, Tenant shall submit to Landlord a statement containing the name, address and affiliation of the proposed subtenant or assignee to the Tenant, the terms of the proposed sublease or assignment and financial and other information with respect to the proposed assignee or subtenant as Landlord may reasonably request.

 

12.04   If the Tenant is a corporation or if this Lease with the consent of the Landlord as aforesaid is assigned to a corporation, and if any time during the Term hereof, any part or all of its corporate shares or voting rights of shareholders shall be transferred by sale, assignment, bequest, inheritance, trust, operation of law or other disposition, or shares be issued so as to result in a change in the control of said corporation by reason of ownership of greater than fifty percent (50%) of the voting shares of the corporation or otherwise, then and so often as such a change of control shall occur, the Tenant shall notify the Landlord in writing of such changes and the Landlord shall have the right to terminate this Lease and the Term, at any time after such change of control by termination, provided such corporation is controlled by a Non-Affiliate. Once each Calendar Year (as hereinafter defined), the Tenant shall, upon request of the Landlord, make available to the Landlord for inspection or copying or both, all books and records of the Tenant which, alone or with other data, show the applicability or inapplicability of this Section 12.04. If any shareholder of the Tenant shall, upon request of the Landlord fail or refuse to furnish to the Landlord any data verified by the affidavit of such shareholder or other credible person, which data, alone or with other data, show the applicability of Section 12.04, then the Landlord may terminate this Lease on sixty (60) day's notice as aforesaid. This Section 12.04 shall not apply to the Tenant if on and from the date of this Lease the control of the Tenant is represented by shares listed on a national stock exchange or the NASDAQ Quotation System.

 

12.05   Contemporaneously with any request or proposal by Tenant to sublet or assign any part of this Lease, Tenant shall pay all costs, including reasonable attorneys' fees, incurred by Landlord in connection with Landlord's investigation of any financial or other information of the proposed assignee or subtenant. The payment of such costs shall not obligate Landlord in any way to consent to any proposed assignment or subletting nor shall the amount of costs paid by Tenant be applied or used as a set-off to any amounts due or to become due by Tenant to Landlord.

 

12.06   If Landlord fails to exercise its termination right and its right to withhold its consent as set forth in the preceding sections of this Article 12, Tenant shall pay to Landlord fifty percent (50%) of all profit derived by Tenant from the assignment or sublease ("Sublease Profit"). Tenant shall not be required to pay any Sublease Profit derived by Tenant from an assignment or sublease with an Affiliate. In determining Sublease Profit Tenant shall only be permitted to deduct (i) leasing commissions and brokerage fees paid by Tenant, (ii) cost and expense of the construction of public corridors, (iii) reasonable advertising expenses, (iv) reasonable attorneys' fees incurred in connection with the preparation of such sublease or assignment, (v) the cost of tenant improvements to the Leased Premises and other tenant incentives (e.g., moving allowances and architectural or design allowance) and (vi) any other reasonable out-of-pocket costs paid by Tenant and which are directly attributable to such assignment or sublease. Whenever requested by Landlord, Tenant shall furnish Landlord with a statement, certified by Tenant's chief financial officer as true, correct and complete, setting forth in detail the computation of profit (which computation shall be based upon generally accepted accounting principles), and Landlord, or its representatives, shall have a right of access to the books, records and papers of Tenant in relation thereto, and to make copies thereof. Such percentage of Tenant's profits shall be paid to Landlord promptly by Tenant upon Tenant's receipt from time to time of periodic payments from such assignee or subtenant or at such other earlier time as Tenant shall realize its profits from such assignment or sublease.

 

12.07   Notwithstanding anything to the contrary contained herein, if Tenant, as a debtor-in-possession (the"DIP"), or a trustee for the estate in bankruptcy of Tenant (the "Trustee"), assumes this Lease and proposes to assign this Lease, or sublet the Leased Premises (or any portion thereof), pursuant to the provisions of the Federal Bankruptcy Code, 11 U.S.C. Sections 101 et   seq . (the "Bankruptcy Code") to any person, partnership, corporation or other entity (the "Proposed Assignee"), then such assumption of this Lease and any such assignment or sublease shall be subject to all of the following:

 

(a)   If the rental agreed upon between the DIP or the Trustee, as the case may be, and the Proposed Assignee under any proposed assignment or sublease of the Premises (or any part thereof) is greater than the rental rate that Tenant must pay Landlord hereunder for that portion of the Leased Premises that is subject to such proposed assignment or sublease, or if any consideration shall be received by the DIP or the Trustee, as the case may be, in connection with any such proposed assignment or sublease, then all such excess rental or such consideration shall be paid or delivered to Landlord, and shall not constitute property of the DIP, the Trustee, or of the estate of Tenant, as the case may be, within the meaning of the Bankruptcy Code; and

 

(b)   Any proposed assignment or sublease of this Lease by the DIP or the Trustee, as the case may be, pursuant to provisions of the Bankruptcy Code shall provide adequate assurance of future performance under this Lease by the Proposed Assignee, which adequate assurance shall include, as a minimum, the following: (i) any Proposed Assignee of the Lease shall deliver to Landlord a security deposit in an amount equal to at least three (3) monthly installments of Base Rent accruing under this Lease; (ii) any Proposed Assignee of the Lease shall provide to Landlord an unaudited financial statement, certified to be accurate by such Proposed Assignee or by an officer, director or partner thereof and dated no later than six (6) months prior to the effective date of such proposed assignment or sublease, which financial statement shall show, the Proposed Assignee to have a net worth equal to at least the Rent that shall accrue under this Lease for the next year of the Term; (iii) any Proposed Assignee shall pay all Rent not previously paid under this Lease including all payments which have been suspended, mitigated, nullified or reduced to a claim of any kind against Tenant or the Tenant's property, by operation of law or otherwise; and (iv) any Proposed Assignee shall assume Tenant's obligation to pay Landlord's attorneys' fees pursuant to the provisions of this Lease.

 

This Section 12.07 shall not apply to any assignment or sublease other than pursuant to the provisions of the Bankruptcy Code, nor shall it in any way limit Landlord's right to damages or other relief in a proceeding under the Bankruptcy Code.

 

13.      RULES AND REGULATIONS

 

13.01   Tenant and employees and all persons visiting or doing business with the Tenant in the Leased Premises shall be bound by and shall observe the reasonable Rules and Regulations promulgated from time to time by the Landlord relating to the Building or the Leased Premises of which notice in writing shall be given to the Tenant and all such rules and regulations shall be deemed to be incorporated into and be a part of this Lease. Tenant acknowledges that attached hereto as Exhibit B and incorporated herein by this reference are the current Rules and Regulations promulgated by the Landlord for the Building. Any default in the performance or observance of such rules and regulations shall be a default hereunder and Landlord shall have all remedies provided for in this Lease in the event of default by Tenant. Landlord, however, shall not be responsible to Tenant for nonobservance by any other tenant or person of such rules or regulations. In the event of any conflict between the provisions of the Lease and the rules or regulations, the provisions of the Lease shall prevail.

 

14.      USE OF LEASED PREMISES

 

14.01   Except as expressly permitted by prior written consent of the Landlord, the Leased Premises shall not be used other than for general business office purposes. All use of the Leased Premises shall comply with the terms of this Lease and all applicable laws, ordinances, regulations or other governmental ordinances from time to time in existence, including but not limited to the Skyline Urban Renewal Plan and the deed restriction imposed thereunder by the Denver Urban Renewal Authority.

 

15.      TENANT'S INSURANCE

 

15.01   (a)   Tenant shall, during its occupancy of the Leased Premises and during the entire Term hereof, at its sole cost and expense, obtain, maintain and keep in full force and effect, and with the Tenant, the Landlord and the mortgagees of the Landlord named as beneficiaries therein as their respective interests may appear, the following types and kinds of insurance:

 

(i)   "All Risk" or "Special Coverage Form" insurance upon property of every description and kind owned by the Tenant and located in the Building or for which the Tenant, is legally liable or installed by or on behalf of the Tenant, including, without limitation, furniture, fittings, installations, alterations, additions, partitions, fixtures and anything in the nature of a leasehold improvement in an amount not less than eighty percent (80%) of the full replacement cost thereof, and in the event that there shall be a dispute as to the amount which comprises full replacement cost, the decision of the Landlord or the mortgagees of the Landlord shall be conclusive.

 

(ii)   Public Liability coverage with respect to the Leased Premises and Tenant's use of any part of the Building which coverage shall include the business operations conducted by the Tenant and any other persons on the Leased Premises. Insurance shall be a Comprehensive-General Liability form (including Contractual Liability) in an amount not less than $1,000,000.00 per person and $3,000,000.00 per occurrence whether involving personal injury liability, (or death resulting therefrom) or property damage liability, or a combination thereof with a minimum aggregate limit of $3,000,000.00 or such higher limits as the Landlord may reasonably require from time to time.

 

(iii)   Any other form or forms of insurance as the Tenant or the Landlord or the mortgagees of the Landlord may reasonably require from time to time in form, in amounts and for insurance risks against which a prudent tenant would protect itself.

 

(iv)   Business interruption insurance in such amounts as will reimburse the Tenant for direct or indirect loss of earnings attributable to all perils commonly insured against by prudent tenants or attributable to prevention of access to the Leased Premises or to the Building as a result of such perils.

 

(v)   If Tenant performs any work on the Leased Premises, prior to the commencement of any such work, Tenant shall deliver to Landlord certificates issued by insurance companies qualified to do business in the State of Colorado, evidencing that workmen's compensation and public liability insurance and property damage insurance, all in the amounts satisfactory to Landlord, are in force and effect and maintained by all contractors and subcontractors engaged by Tenant to perform such work.

 

(b)   All property damage policies written on behalf of the Tenant shall contain a waiver of any subrogation rights which the Tenant's insurers may have against the Landlord and against those for whom the Landlord is, in law, responsible whether any such damage is caused by the act, omission or fault of the Landlord or by those for whom the Landlord is, in law, responsible.

 

(c)   All policies shall be taken out with insurers acceptable to the Landlord and in form satisfactory from time to time to the Landlord. All policies shall name Landlord as an additional insured. The Tenant agrees that certificates of insurance, or, if required by the Landlord or the mortgagees of the Landlord, certified copies of each such insurance policies will be delivered to the Landlord as soon as practicable after the placing of the required insurance, but in no event later than ten (10) days after Tenant takes possession of all or any part of the Leased Premises. All policies shall contain an undertaking by the insurers to notify the Landlord and the mortgagees of the Landlord in writing not less than thirty (30) days prior to any material change, cancellation or other termination thereof.

 

(d)   The Tenant covenants and agrees that in the event of damage or destruction to the leasehold improvements in the Leased Premises covered by insurance required to be taken out by the Tenant pursuant to subsection 15.01(a)(i), the Tenant will use the proceeds of such insurance for the purpose of repairing or restoring such leasehold improvements. Tenant shall be permitted to request modifications to the Leased Premises subject to Landlord's consent (which consent shall not be unreasonably withheld, provided such modifications do not increase the cost nor delay the completion of repairing or restoring the Leased Premises). In the event of damage to or destruction of the Building entitling the Landlord to terminate this Lease pursuant to Section 31.02 hereof, then, if the Leased Premises have also been damaged, the Tenant will pay to the Landlord all of its insurance proceeds relating to the leasehold improvements in the Leased Premises and if the Leased Premises have not been damaged, the Tenant will deliver to the Landlord, in accordance with the provisions of this Lease, the leasehold improvements and the Leased Premises.

 

 

16.      CANCELLATION OF INSURANCE

 

16.01   If any insurance policy upon the Building or any part thereof shall be canceled or cancellation shall be threatened or the coverage thereunder reduced or threatened to be reduced or the premium therefor increased, in any way by reason of the use or occupation of the Leased Premises or any part thereof by the Tenant or by any assignee or subtenant of the Tenant or by anyone permitted by the Tenant to be upon the Leased Premises and, if the Tenant fails to remedy the condition giving rise to cancellation, threatened cancellation, reduction of coverage, or increase in premium within forty-eight (48) hours after notice, the Landlord may, at its option, enter upon the Leased Premises and attempt to remedy such condition or demand payment of the amount of increased premium by Tenant and the Tenant shall forthwith pay the cost thereof to the Landlord as Additional Rent. The Landlord shall not be liable for any damage or injury caused to any property of the Tenant or of other located on the Leased Premises as a result of such entry. In the event that the Landlord shall be unable to remedy such condition, then Landlord shall have all of the remedies provided for in the Lease in the event of a default by Tenant. Notwithstanding the foregoing provisions of this Section 16.01, if Tenant fails to remedy as aforesaid, Tenant shall be in default of its obligation hereunder and Landlord shall have no obligation to attempt to remedy.

 

17.      OBSERVANCE OF LAW

 

17.01   Tenant shall comply with all provisions of law, including, without limitation, federal, state, county and city laws, ordinances and regulations and any other governmental, quasi-governmental or municipal regulations which relate to the partitioning, equipment operation, alteration, occupancy and use of the Leased Premises, and to the making of any repairs, replacements, alterations, additions, changes, substitutions or improvements of or to the Leased Premises. Moreover, the Tenant shall comply with all police, fire, and sanitary regulations imposed by any federal, state, county or municipal authorities, or made by insurance underwriters, and to observe and obey all governmental and municipal regulations and other requirements governing the conduct of any business conducted in the Leased Premises. Notwithstanding the foregoing, it shall be the Landlord's sole cost (subject to the provisions of Article 54) and responsibility to comply with federal, state, county and city legislative enactments, building codes and any other governmental or municipal which relate to the Building insofar as they may require changes of a structural nature in the Building, provided, nevertheless, that such changes shall be the responsibility of the Tenant if there are changes required to be made in the Tenant's improvements or partitioning whether such changes are required by reason of the nature of the use or improvements contemplated or made by the Tenant.

 

18.      WASTE AND NUISANCE

 

18.01   Tenant shall not commit, suffer or permit any waste or damage or disfiguration or injury to the Leased Premises or common areas in the Building or the fixtures and equipment located therein or thereon, or permit or suffer any overloading of the floors thereof and shall not place therein any safe, heavy business machinery, computers, data processing machines, or other heavy items without first obtaining the consent in writing of the Landlord (which consent shall not be unreasonably withheld, conditioned or delayed) and, if requested, by Landlord's superintending architect, and not use or permit to be used any part of the Leased Premises for any dangerous, noxious or offensive trade or business, and shall not cause or permit any nuisance, noise or action in, at or on the Leased Premises.

 

19.      ENTRY BY LANDLORD

 

19.01   Tenant agrees to and shall permit the Landlord, its servants or agents to enter upon the Leased Premises at any time upon reasonable oral notice to Tenant (except in the event of an emergency in which event no notice shall be necessary) making repairs, alterations or improvements to the Leased Premises or to the Building, or for the purpose of having access to the underfloor or ceiling ducts, if any, or to the access panels to mechanical shafts (which the Tenant agrees not to obstruct), and the Tenant shall not be entitled to compensation for any inconvenience, nuisance or discomfort occasioned thereby. The Landlord, or its servants or agents may at any time and from time to time enter upon the Leased Premises to remove any article or remedy any condition which in the opinion of the Landlord, reasonably arrived at, would be likely to lead to cancellation of any policy of insurance hereof, and such entry by the Landlord shall not be deemed to be re-entry under subsection 36.01(b) hereof. The Landlord shall have the right to enter the Leased Premises in order to check, calibrate, adjust and balance controls and other parts of the heating, ventilation and climate control system at any time. The Landlord shall attempt to proceed hereunder in such manner as to minimize interference with the Tenant's use and enjoyment of the Leased Premises.

 

20.      INDEMNIFICATION OF LANDLORD

 

20.01   Tenant shall indemnify the Landlord and save it harmless from and against any and all loss (including loss of rentals payable by the Tenant or other tenants in the event of loss either directly or indirectly caused by commission or omission of Tenant), claims, actions, damages, liability and expenses in connection with loss of life, personal injury and damage to property arising from any occurrence in, upon or at the Leased Premises or any part thereof, or occasioned wholly or in part by any act or omission of the Tenant, its agents, or contractors, employees, servants, licensees, or concessionaires or invitees or by anyone permitted to be on the Leased Premises by the Tenant. In case the Landlord shall, without fault on its part, be made a party to any litigation commenced by or against the Tenant, then the Tenant shall protect and hold the Landlord harmless and shall pay all costs, expenses and reasonable attorneys' fees incurred or paid by the Landlord in connection with such litigation.

 

20.02   Unless caused by the gross negligence of Landlord, Tenant shall neither hold nor attempt to hold Landlord liable for any injury or damage, either proximate or remote, occurring through or caused by any repairs, alteration, injury or accident to the Leased Premises, to adjacent premises or other parts of the Building not herein demised, or for any injury or damage occasioned by gas, smoke, rain, snow, wind, ice, hail, lightning, earthquake, war, civil disorder, strike, defective electrical wiring, or the breaking or stoppage of the plumbing or sewage upon or in the Building or adjacent premises, whether said breaking or stoppage results from freezing or otherwise.

 

21.      EXHIBITING PREMISES

 

21.01   Tenant shall permit the Landlord or its agents to exhibit and show the Leased Premises to prospective tenants during Normal Business Hours of the last twelve (12) months of the Term or any renewal thereof.

 

22.      ALTERATIONS

 

22.01   Tenant shall not, without the prior written consent of Landlord (which consent shall not be unreasonably withheld or conditioned, provided the alterations, improvements and/or additions (i) are not visible from outside of the Leased Premises, and (ii) do not require the modification of the electrical, plumbing or mechanical systems of the Building), make any alterations, improvements or additions to the Leased Premises. Any such consented to alterations, improvements or additions to the Leased Premises shall be completed at the sole cost and expense of Tenant, unless otherwise agreed to by Landlord as part of any consent thereto. If Landlord consents to any alterations, improvements or additions, it may impose such conditions with respect thereto as Landlord deems appropriate, including, without limitation, Landlord's approval of plans and specifications for the work (but Tenant shall not be entitled to rely upon such approval as evidencing that the plans and specifications are proper in any respect), use of Landlord's approved contractors to perform the work, insurance against liabilities which may arise out of such work, permits necessary for such work and as-built drawings upon completion of such work, and the furnishing to Landlord of such security as is determined by Landlord to be appropriate for the proper completion or such work and its completion free of mechanic's, materialmen's and similar liens or claims thereof. All work done by Tenant or its contractors shall be done in a first-class workmanlike manner, using only good grades of materials and without disturbing other tenants and shall comply with all insurance requirements and all applicable laws or ordinances and rules and regulations of governmental departments or agencies. Before proceeding with any such work, Tenant shall reimburse Landlord for Landlord's actual costs of Landlord's architects' review of Tenant's plans and specifications. Any work performed by or for Tenant shall be performed by competent workmen whose labor union affiliations are compatible with those of the workmen who may be employed in the Building by Landlord, its contractors or subcontractors, and Landlord shall have the right, at its option, and at no additional cost to Tenant, to directly supervise the work, which supervision shall be for the protection of Landlord's interest only.

 

22.02   If Tenant requests that Landlord, through its contractors, perform the work associated with any alteration, improvement or addition to the Leased Premises, and Landlord agrees, in its sole discretion, to perform such work, Landlord shall provide Tenant with a Tenant Work Order describing the work to be performed by Landlord and stating the total cost to Tenant for the performance of the work. Upon Tenant's acceptance of the Tenant Work Order, the total cost for the work stated therein shall become a charge or money obligation herein required to be paid by Tenant and subject to the Default and Remedies provisions of this Lease set forth in Sections 35.01 through 36.05, inclusive. All work performed by Landlord under this Section 22.02 shall be subject to the provisions of Section 22.01.

 

22.03   All alterations, additions or improvements made by Tenant and all fixtures attached to the Leased Premises shall become the property of Landlord and remain at the Leased Premises or, at Landlord's option (to be exercised at the time Landlord grants its approval to such alterations, additions or improvements), any or all of the foregoing shall be removed at the cost of Tenant before the expiration or sooner termination of this Lease and in such event Tenant shall repair all damage to the Leased Premises caused by the installation and/or removal thereof. Tenant shall not permit or suffer any signs advertisements or notices to be displayed, inscribed upon or affixed on any part of the outside or inside of the Leased Premises, or in the Building, except on the entrance doors of the Leased Premises, and then only of such size, color and style as Landlord may approve. Landlord shall have the right to remove unauthorized signs at Tenant's expense.

 

23.      GLASS

 

23.01   Landlord shall pay on demand the cost of replacement with as good quality and size of any glass broken on the Leased Premises, including outside windows and doors of the perimeter of the Leased Premises (including perimeter windows in the exterior walls) during the continuance of this Lease, unless the glass shall be broken by the Tenant, its servants, employees or agents acting on its behalf, in which event Tenant shall pay on demand the cost of replacement.

 

24.      SIGNS AND ADVERTISING

 

24.01   Tenant shall not install, paint, display, inscribe, place or affix any sign, picture, advertisements, notice, lettering or direction on any part of the outside of the Building or in the interior of the Leased Premises (if visible from outside the Leased Premises) or other portion of the Building. The Landlord will prescribe a uniform pattern of identification signs for tenants to be placed on the outside of the doors leading into the Leased Premises and other than such identification signs, Tenant shall not install, paint, display, inscribe, place or affix, or otherwise attach, any sign, picture, advertisement, notice, lettering or direction on the outside of the Leased Premises for exterior view without the written consent of the Landlord.

 

25.      NAME OF BUILDING

 

25.01   Tenant shall not refer to the Building by a name other than that designated from time to time by the Landlord, nor to use such name for any purpose other than that of the business address of Tenant provided that the Tenant may use the street address of the Building assigned to it by the Landlord instead of the name of the Building.

 

26.      SUBORDINATION AND ATTORNMENT

 

26.01   This Lease is subject to and subordinate to all mortgages, deeds of trust, or other security instruments (including any deed of trust and mortgage securing bonds and all indentures supplemental thereto), whether now in existence or subsequently placed on the Real Property and to all underlying, superior, ground or land leases, master leases or primary leases (all of which are hereinafter referred to collectively as "Mortgage") which may now or hereafter encumber the Real Property of which the Leased Premises are a part (the mortgagee under any such Mortgage or the lessor under any such lease is referred to herein as "Landlord's Mortgagee"), and to all or any declaration of covenants regarding maintenance or use of any areas contained in any portion of the Building , and all advances, renewals, modifications, consolidations, replacements and extensions thereof of such mortgages and leases and declaration of covenants which may now or hereafter affect the Leased Premises or any part thereof. This clause shall be self-operative and no further instrument of subordination shall be required in order for the same to be effective. Notwithstanding the foregoing, Tenant hereby appoints the Landlord, the agent, or attorney of the Tenant coupled with an interest for the purpose of executing any acknowledgment or agreement required by Landlord's Mortgagee. Tenant, hereby attorns to all successor owners of the Building, whether or not such ownership is acquired as a result of a sale, through foreclosure of a Mortgage or otherwise. If Landlord's Mortgagee shall elect to have this Lease superior to the lien of its Mortgage, and shall give written notice thereof to Tenant, this Lease shall be deemed prior to such Mortgage, whether this Lease is dated prior or subsequent to the date of said Mortgage or the date of recording thereof. With respect to any Mortgage first encumbering the Building subsequent to the Commencement Date of the Lease, upon Tenant's request, Landlord will use its good faith efforts to cause Landlord's Mortgagee to agree that so long as Tenant is not in default of its obligations under the Lease, the Lease will not be terminated and Tenant's possession of the Leased Premises will not be disturbed by the termination or foreclosure, or proceeds for enforcement, of such Mortgage.

 

 

27.      ACCEPTANCE OF PREMISES

 

27.01   Subject to Landlord's obligation to complete the Landlord's Work (hereinafter defined), Tenant accepts the Leased Premises “AS IS, WHERE IS AND WITH ALL FAULTS”. Tenant acknowledges that it will examine the Leased Premises before taking possession hereunder and agrees that upon so taking possession hereunder Tenant shall be conclusively deemed to have examined the Leased Premises and that the same were in good order and such taking of possession shall be conclusive evidence as against Tenant that at the time of such possession the Leased Premises were in good order and satisfactory condition (subject to latent defects), and shall be acknowledgment of satisfactory completion of any fix-up or remodeling, as the case may be which Landlord has agreed to perform.

 

27.02   Tenant agrees that there is no promise, representation or undertaking by or binding upon the Landlord with respect to any alteration, remodeling or redecorating of or installation of equipment or fixtures in the Leased Premises, except such, if any, as are expressly set forth in this Lease.

 

28.      ESTOPPEL CERTIFICATES

 

28.01   Tenant agrees that it shall at any time and from time to time upon not less than ten (10) days' prior notice, execute and deliver to the Landlord a statement in writing certifying that this Lease is unmodified and in full force and effect (or, if modified, stating the modifications and that the same is in full force and effect as modified), the amount of the annual rental then being paid hereunder, the dates to which the same, by installment or otherwise, and other charges hereunder have been paid, and whether or not there is any existing default on the part of the Landlord of which the Tenant has knowledge and such other information reasonably required by Landlord, Landlord's Mortgagee, and the City and County of Denver.

 

29.      FIXTURES

 

29.01   Any or all installations, alterations, additions, partitions and fixtures other than Tenant's trade fixtures in or upon the Leased Premises, whether placed there by the Tenant or the Landlord, shall, immediately upon such placement, become the property of the Landlord without compensation therefor to the Tenant. Notwithstanding anything herein contained, the Landlord shall be under no obligation to repair, maintain or insure such installations, alterations, additions, partitions and fixtures or anything in the nature of a leasehold improvement made or installed by or on behalf of the Tenant. The Landlord may elect that any or all installations made or installed by or on behalf of the Tenant (other than the Landlord's Work) be removed at the end of the Lease Term and it shall be the Tenant's obligation to restore the Leased Premises to the conditions they were in previous to such alterations, installations, partitions and fixtures. Such removal and restoration shall be at the sole expense of the Tenant.

 

30.      LANDLORD'S INSURANCE

 

30.01   The Landlord covenants and agrees that throughout the Term it will insure the Building (excluding foundations and excavations) and the machinery, boilers and equipment contained therein owned by the Landlord (excluding any property with respect to which the Tenant is obliged to insure pursuant to the provisions of Section 15.01 hereof) against damage by fire and extended perils coverage in such reasonable amounts as would be carried by a prudent owner of a similar property in the same locale. The Landlord will also, throughout the Term, carry public liability and property damage insurance with respect to the operation of the Building in reasonable amounts as would be carried by a prudent owner of a similar property in the same locale. The Landlord may, but shall not be obliged to, take out and carry any other form or forms of insurance as it or Landlord's Mortgagee may reasonably determine advisable. Notwithstanding any contribution by the Tenant to the cost of insurance premiums, as provided herein, the Tenant acknowledges that it has no right to receive any proceeds from any such insurance policies carried by the Landlord and that such insurance will be for the sole benefit of Landlord with no coverage for Tenant for any risk insured against.

 

All property damage policies written on behalf of the Landlord shall contain a waiver of any subrogation rights which the Landlord's insurers may have against the Tenant and against those for whom the Tenant is, in law, responsible whether any such damage is caused by the act, omission or fault of the Tenant or by those for whom the Tenant is, in law, responsible.

 

31.      FIRES, ETC.

 

31.01   In the event of damage to the Leased Premises by fire, or other casualty, or damage resulting from structural defect, or damage by other casualty against which the Landlord is insured, and which is not caused by the negligence of Tenant, rent shall abate in the proportion that the unusable portion of the Leased Premises as determined by Landlord is of the Total Rentable Area of the Leased Premises until the Leased Premises are rebuilt; and the Landlord agrees that it will with reasonable diligence repair such damage under the terms hereof, unless this Lease is terminated as hereinafter provided in Sections 31.02 and 31.03.

 

31.02   If the Leased Premises are damaged or destroyed by any cause whatsoever, and if, in the reasonable opinion of the Landlord, the Leased Premises cannot be rebuilt or made fit for the purposes of the Tenant within ninety (90) days of the damage or destruction, the Landlord instead of rebuilding or making the Leased Premises fit for the Tenant, may at its option, terminate this Lease by giving to the Tenant, within thirty (30) days after such damage or destruction, notice of termination, and thereupon, rent and any other payments for which the Tenant is liable under this Lease shall be apportioned and paid to the date of such damage and the Tenant shall immediately deliver up possession of the Leased Premises to the Landlord. Provided, however, that those provisions of this Lease which are designated to cover matters of termination and thereafter shall survive the termination hereof. In the event Landlord does not elect to terminate this Lease pursuant to this Section 31.02 and does not complete repairs or restoration within 180 days after such damage, except for delays of up to sixty (60) days caused by matters beyond Landlord's reasonable control, Tenant may terminate this Lease upon thirty (30) days prior written notice to Landlord.

 

31.03   Irrespective of whether the Leased Premises are damaged or destroyed, in the event that fifty percent (50%) or more of the Total Rentable Area of the Building is damaged or destroyed or made unusable by any cause whatsoever, and if, in the reasonable opinion of the Landlord the said Total Rentable Area of the Building cannot be rebuilt or made fit for the purpose of the tenants of such space within one hundred and eighty (180) days after the damage or destruction, the Landlord may, at its option, terminate this Lease by giving to the Tenant within thirty (30) days after such damage notice of termination requiring it to vacate the Leased Premises sixty (60) days after delivery of the notice of termination and thereupon, rent and any other payments for which the Tenant is liable under this Lease shall be apportioned and paid to the date on which possession is relinquished and the Tenant shall deliver up possession of the Leased Premises to the Landlord in accordance with such notice of termination.

 

31.04   If the fire or other casualty causing damage to the Leased Premises or other parts of the Building shall have been caused by the negligence or misconduct of Tenant, its agents, servants, or employees, or by any other persons entering the Building under express or implied invitation of Tenant and the cost of such repair is not otherwise covered by Landlord's insurance, such damage shall be repaired by Landlord at the expense of Tenant (including, without limitation, the cost of any deductibles or insurance); provided, however, that the expense of Tenant shall not exceed the greater of (i) the amount of Tenant's insurance coverage, or (ii) the amount of Tenant's insurance coverage required under this Lease.

 

32.      CONDEMNATION

 

32.01   If more than twenty percent (20%) of the Total Rentable Area of the Leased Premises shall be taken by eminent domain, or by conveyance in lieu thereof, and if such taking interferes substantially with the Tenant's use of the Leased Premises, then this Lease, at the option of either party evidenced by notice to the other given within thirty (30) days from the taking or conveyance, shall forthwith cease and terminate entirely. In the event of such termination of this Lease, then rental shall be due and payable to the actual date of such termination. If less than twenty percent (20%) of the Total Rentable Area of the Leased Premises shall be taken, or if more than twenty percent (20%) of the Leased Premises is taken and neither party terminates this Lease, this Lease shall cease and terminate as to that portion of the Leased Premises so taken as of the date of taking, and the rental thereafter payable under this Lease shall be abated pro rata from the date of such taking in an amount by which that portion of the Total Rentable Area of the Leased Premises prior to such taking. If any part of the Building or Real Property shall be taken by eminent domain, or by conveyance in lieu thereof, and if such taking substantially interferes with the Landlord's ownership or use of the Building, the Landlord, at its option, may terminate this lease as of the date of such taking. In any event, the Landlord shall receive the entire award for the land and improvements taken by condemnation and the Tenant shall not be entitled to any portion thereof.

 

33.      LOSS AND DAMAGE

 

33.01   The Landlord shall not be liable or responsible in any way for:

 

(a)   any death or injury arising from or out of any occurrence in, upon or at the Building or for damage to property of the Tenant or others located on the Leased Premises, nor shall it be responsible in the event of damage to any property of the Tenant or others from any cause whatsoever, unless such damage, loss, injury or death results from the gross negligence or willful misconduct of the Landlord, its agents, servants, or employees or others for whom it may be responsible within the scope of their employ. Without limiting the generality of the foregoing, the Landlord shall not be liable for any injury or damage to persons or property resulting from fire, explosion, falling plaster, steam, gas, electricity, water, rain, snow or leaks from any part of the Leased Premises or from the pipes, appliances, or plumbing works, roof, street, or subsurface of any floor or ceiling or from any other place or because of dampness or climatic conditions from any other cause of whatsoever kind. The Landlord shall not be liable for any damage whatsoever caused by any other tenant or persons in the Building, or by an occupant of adjacent property thereto, or the public, or construction of any private, public or quasi-public work. All property of the Tenant kept or stored on the Leased Premises shall be kept or stored at the risk of the Tenant only and the Tenant shall indemnify the Landlord in the event of any claims arising out of damages to the same, including any subrogation claim by the Tenant's insurers;

 

(b)   any act or omission (including theft, malfeasance or negligence) on the part of any agent, contractor or person from time to time employed by Landlord to perform janitor services or security services, or repairs or maintenance services, in or about the Leased Premises of the Building;

 

(c)   loss or damage, however caused, to money, securities, negotiable instruments, papers or other valuables of the Tenant; or

 

(d)   any punitive damages or consequential damages.

 

 

34.      DELAYS

 

34.01   Whenever and to the extent that the Landlord shall be unable to fulfill, or shall be delayed or restricted in the fulfillment of any obligation hereunder in respect to the supply or provision of any service or utility or the doing of any work or the making of any repairs by reason of being unable to obtain the material, goods, equipment, service, utility or labor required to enable it to fulfill such obligation or by reason of any statute, law or any regulation or order passed or made pursuant thereto, or by reason of the order or direction of any administrator, controller or board, or any governmental department or officer or other authority, or by reason of not being able to obtain any permission or authority required thereby, or by reason of any other cause beyond its control whether of the foregoing character or not, the Landlord shall be entitled to extend the time for fulfillment of such obligation by a time equal to the duration of such delay or restriction, and the Tenant shall not be entitled to compensation for any inconvenience, nuisance or discomfort thereby occasioned, except as provided in Section 7.03 hereof.

 

35.      DEFAULT

 

35.01   Upon the happening of any one or more of the following events, Landlord may give notice to Tenant stating that the Term of this Lease is terminated on a date and if such notice shall be given, the Term of this Lease shall terminate on the date so stated:

 

(a)   The failure of Tenant to timely and fully pay any installment of rent, or other charge or money obligation herein required to be paid by Tenant. Provided the first two (2) times Tenant fails to make timely payment of such amounts, Landlord shall provide Tenant written notice and Tenant shall have five (5) business days after receipt of such notice to cure the default, but after the first two (2) such instances, failure to pay timely will be an immediate default and Landlord shall have no obligation to give additional notice to Tenant or grant any cure period.

 

(b)   The failure of Tenant to perform any one or more of its other covenants under this Lease within ten (10) days after written notice to Tenant specifying the covenant or covenants Tenant has not performed.

 

(c)   The making by Tenant of an assignment for the benefit of its creditors.

 

(d)   The levying of a writ of execution or attachment on or against the property of Tenant if the same is not released or discharged within thirty (30) days thereafter.

 

(e)   The instituting of proceedings in a court of competent jurisdiction for the involuntary bankruptcy, arrangement, reorganization, liquidation or dissolution of Tenant under the Federal Bankruptcy Code (as now or hereafter in effect) or any state bankruptcy or insolvency act, or for its adjudication as a bankrupt or insolvent, or for the appointment of a receiver of the property of Tenant, and said proceedings are not dismissed, or any receiver, trustee, or liquidator appointed therein is not discharged within thirty (30) days after the institution of said proceedings.

 

(f)   The instituting of proceedings for the voluntary bankruptcy arrangement, reorganization, liquidation or dissolution of Tenant under the Federal Bankruptcy Code (as now or hereafter in effect) or any state bankruptcy or insolvency act or if Tenant shall otherwise take advantage of any state or federal bankruptcy or insolvency act as a bankrupt or insolvent.

 

(g)   The doing, or permitting to be done, by Tenant of any act which creates a mechanic's lien or claim therefor against the land or Building of which the Leased Premises are a part of the same is not released or otherwise provided for by indemnification satisfactory to Landlord within twenty (20) days thereafter.

 

(h)   The abandonment or vacating of the Leased Premises for more than sixty (60) days.

 

(i)   The failure to take possession of the Leased Premises on the term Commencement Date.

 

Notwithstanding any such termination, Tenant shall remain liable to Landlord as hereinafter provided in Article 36 of this Lease.

 

35.02   No condoning, excusing or overlooking by the Landlord of any default, breach or non-observance by the Tenant at any time or times in respect of any covenants, provisions or conditions herein contained shall operate as a waiver of the Landlord's rights hereunder in respect of any continuing or subsequent default, breach or non-observance, or so as to defeat or affect such continuing or subsequent default or breach, and no waiver shall be inferred from or implied by anything done or omitted by the Landlord save only express waiver in writing. All rights and remedies of the Landlord in this Lease contained shall be cumulative and not alternative.

 

 

36.      REMEDIES OF LANDLORD

 

36.01   If an event of default set forth in Section 35.01 occurs, the Landlord shall have the following rights and remedies in addition to all other remedies, at law or in the equity, and none of the following, whether or not exercised by the Landlord, shall preclude the exercise of any other right or remedy whether herein set forth or existing at law or in equity:

 

(a)   Landlord shall have the right to terminate this Lease by giving the Tenant notice in writing, and upon the giving of such notice, this Lease and the Term hereof as well as all the right, title and interest of the Tenant under this Lease shall wholly cease and expire in the same manner and with the same force and effect on the date specified in such notice as if such date were the expiration date of the Term of this Lease, without the necessity of re-entry or any other act on the Landlord's part. Upon termination, the Tenant shall quit and surrender to Landlord the Leased Premises as set forth in Section 11.03. If this Lease is so terminated by Landlord, Landlord shall be entitled to recover from the Tenant as damages the worth at the time of such termination of the excess, if any, of the amount of rent reserved in this Lease for the balance of the term of this Lease (which shall be calculated on the then current rent under this Lease) in excess of the then reasonable rental value of the Leased Premises for the same period plus all costs and expenses of Landlord caused by the Tenant's default.

 

(b)   Landlord may, without demand, or notice, re-enter and take possession of the Leased Premises or any part thereof, repossess the same and expel the Tenant and those claiming through or under the Tenant, and remove the effects of any and all such persons (forcibly, if necessary) without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of rent or preceding breach of covenants. Should the Landlord elect to re-enter as provided in this Section 36.01 or should the Landlord take possession pursuant to legal proceedings or pursuant to any notice provided for by law, the Landlord may, from time to time, without terminating this Lease, relet the Leased Premises or any part thereof for such other conditions as the Landlord may deem advisable with the right to make alterations and repairs to the Leased Premises. No such re-entry or repossession of the Leased Premises by the Landlord shall be construed as an election on the Landlord's part to terminate this Lease unless a written notice of termination is given to the Tenant by the Landlord. No such re-entry or repossession of the Leased Premises shall relieve the Tenant of its liability and obligation under this Lease, all of which shall survive such re-entry or repossession. Upon the occurrence of such re-entry or repossession, the Landlord shall be entitled to damages in the amount of the monthly rent, and any other sums, which would be payable hereunder if such re-entry or repossession had not occurred, less the net proceeds, if any, of any reletting of the Leased Premises after deducting all the Landlord's expenses in connection with such reletting, including, but without limitation, all repossession costs, brokerage commissions, legal expenses, attorney's fees, expenses of employees, alteration costs and expenses of preparation for such reletting, Tenant shall pay such liquidated damages to the Landlord on the days on which the rent or any other sums due hereunder would have been payable hereunder if possession had not been retaken. In no event shall the Tenant be entitled to receive any excess, if any, of net rent collected by the Landlord as a result of such reletting over the sums payable by the Tenant to the Landlord hereunder.

 

36.02   As additional security for the Tenant's performance of its obligations under this Lease, the Tenant hereby grants to the Landlord a security interest in and to all improvements, equipment and other personal property of Tenant situated on the Leased Premises as security for the payment of all rent and other sums due or to become due under this Lease. Tenant shall execute such documents as the Landlord may reasonably require to evidence the Landlord's security interest in such personal property. If the Tenant is in default under this Lease, such personal property shall not be removed from the Leased Premises (except to the extent such property is replaced with an item of equal or greater value) without the prior written consent of the Landlord. It is intended by the parties hereto that this instrument shall have the effect of a security agreement covering such personal property, and the Landlord, upon the occurrence of an event of default set forth in Section 35.01, may exercise any rights of a secured party under the Uniform Commercial Code of the State of Colorado including the right to take possession of such personal property (after ten (10) days' notice to those parties required by statute to be notified) to sell the same for the best price that can be obtained at public or private sale, and out of the money derived therefrom, pay the amount due the Landlord and all costs arising out the execution of the provisions of this section, paying the surplus, if any, to the Tenant. If such personal property, or any portion thereof, shall be offered at the public sale, the Landlord may become the purchaser thereof. In addition, all movable furniture and personal effects of Tenant not removed from the Leased Premises upon the vacation or abandonment thereof or upon the termination of this Lease or for any cause whatsoever 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 power and without obligation to account therefor; and Tenant shall pay Landlord all expenses incurred in connection with the disposition of such property.

 

36.03   If the Tenant shall default in making any payment required to be made by the Tenant (other than payments of rent) or shall default in performing any other obligations of the Tenant under this Lease, the Landlord may, but shall not be obligated to, make such payment or, on behalf of the Tenant, expend such sums as may be necessary to perform such obligations. All sums so expended by the Landlord, shall bear interest thereon at the rate of eighteen percent (18%) per year, and shall be repaid by the Tenant to the Landlord on demand. No such payment or expenditure by the Landlord shall be deemed a waiver of the Tenant's default nor shall it affect any other remedy of the Landlord by reason of such default.

 

If any payment of rent or any other sum, or any part of any such payment, to be made by Tenant under the terms of this Lease shall become overdue for a period in excess of ten (10) days Tenant shall pay to Landlord (x) a "late charge" of $.05 for each dollar so overdue, for the purpose of defraying the expense incident to handling such overdue or delinquent payment, and (y) interest on the overdue amount at the Lease Interest Rate (defined below) from the date when such payment was due until the date paid, but in no event more than the amount or rate which is the maximum amount or rate Landlord may lawfully charge in respect of Tenant in such circumstances under applicable law. The "Lease Interest Rate" shall mean the greater of 18% per annum or such variable rate which is from time to time equal to 3% above the prime rate as stated by U.S. Bank, Denver, Colorado or its successor, or, in the absence of there being a successor to U.S. Bank, by such other bank having an office in the City of Denver, as Landlord may from time to time select. Nothing herein shall be construed as waiving any rights of Landlord arising out of any default of Tenant by reason of Landlord's accepting any such late charge or interest; the right to collect a late charge and interest is separate and apart from any other rights or remedies of Landlord after default by Tenant.

 

36.04   Nothing in this Lease contained 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 Lease.

 

36.05   Notwithstanding anything in this Article 36 or any other provision of this Lease to the contrary, this Lease shall not be terminated by service upon Tenant of a notice from Landlord demanding payment of rent or possession of the Leased Premises following default by Tenant, or by any action of Tenant to vacate the Leased Premises following receipt of such a notice, unless the notice served by Landlord includes a statement expressly terminating this Lease. Further, Landlord reserves the right to receive payment of all unaccrued rent for the balance of the Term originally contemplated under subsection 2.01(i) of this Lease (and any extensions or renewals thereof which Tenant shall have become bound) following service of such a notice for payment of rent or possession, or a notice terminating this Lease for Tenant's default.

 

37.      HOLDING OVER

 

37.01   If the Tenant shall continue to occupy and continue to pay Rent for the Leased Premises after the expiration of this Lease with or without the consent of the Landlord, and without any further written agreement, the Tenant shall be a tenant from month to month at a monthly Base Rent equal to one hundred twenty-five percent (125%) of the last full monthly Base Rent payment due hereunder during the first (1st) month of Tenant's holdover, and (ii) one hundred fifty percent (150%) of the last full monthly Base Rent payment due hereunder during any Tenant's holdover exceeding one (1) month, and subject to all of the additional rentals, charges, terms and conditions herein set out except as to expiration of the Lease Term.

 

37.02   No payments of money by Tenant to Landlord after the termination of this Lease, 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 said 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 its