Colorado-Denver-201 University Boulevard Lease - Country Club Plaza Associates and Alfalfa's Cherry Creek Inc.
SHOPPING CENTER LEASE
NAME OF CENTER: THE PLAZA AT CHERRY CREEK
1. PARTIES. This Lease, dated as of this 19th day of January, 1990, is made
by and between COUNTRY CLUB PLAZA ASSOCIATES (herein called "Landlord") and
ALFALFA'S CHERRY CREEK, INC. (herein called "Tenant").
2. PREMISES. Landlord does hereby lease to Tenant and Tenant hereby leases
from Landlord that certain space (herein called "Premises"), containing
approximately 16,300 square feet of floor area; 11,300 square feet on the
ground level, 2,000 square feet in the basement, and 3,000 square feet on the
second level, located at 201 University Boulevard, Denver, Colorado. The
location and dimensions of said Premises are delineated on Exhibit "A" attached
hereto and incorporated by reference herein. Said Premises are located in the
City and County of Denver, State of Colorado. This Lease is subject to the
terms, covenants and conditions herein set forth and the Tenant covenants as a
material part of the consideration for the Lease to keep and perform each and
all of said terms, covenants and conditions by it to be kept and performed.
3. USE. Tenant shall use the Premises for a grocery store, food prep and
kitchen, delicatessen, cafe, floral shop and general offices, and shall not use
or permit the Premises to be used for any other purpose without the prior
written consent of Landlord. Tenant understands that hoods and vents are not
allowed.
4. MINIMUM RENT.
4.A. I. Tenant shall pay o Landlord $8,479.00 as minimum rent for the
Premises for the months of January and February, 1990, unless no minimum rent
is to be paid as provided herein. Rent shall be payable on the twenty-first
day of each month, commencing January 21, 1990. No proration of rent shall be
payable if the lease is executed prior to January 21, 1990.
II. Tenant shall have the obligation, on or before February 21,
1990, to obtain the financing contemplated in Section 4.B. below and to provide
Landlord with written notice confirming such financing. Any such notice shall
be deemed to be given, for purposes of calculating rent due and free-rent
periods, effective as of the next succeeding twenty-first day of a month. (For
example, if Tenant gives notice on February 2 that financing has been obtained,
Tenant's notice shall be deemed effective February 21, and the six-months' free
rent shall commence on February 22 and full rent shall be next due on August
21, 1990.) Upon Tenant notifying Landlord that Tenant has obtained financing
as contemplated in Section 4.B. below, Tenant shall build out and occupy the
Premises for the following six-month period rent-free. Thereafter Tenant shall
pay the rental rate as provided in Paragraph 4.A.III below.
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III. upon Termination of the six-month rent-free period as provided
in 4.A.II above, Tenant shall pay to Landlord as minimum rent in advance, on
the twenty-first day of each month, the following rental rates without notice
or demand:
(a) $17,791.66 until such time as Tenant's sales on the
Premises for any consecutive 20-week period exceed $3,100,000.00, and
thereafter
(b) Once tenant's sales on the Premises for any consecutive
20-week period exceeds $3,100,000, then Tenant's Minimum Rent, regardless of
what Tenant' Minimum Rent may be at that time, shall automatically increase for
the remainder of the term of this Lease by $1,479.00 per month;
(c) Once Tenant's sales on the Premises for any consecutive
20-week period exeeds $3,300,000, then Tenant's Minimum Rent, regardless of
what Tenant' Minimum Rent may be at that time, shall automatically increase for
the remainder of the term of this Lease by $1,096.50 per month.
Prior to Tenant's satisfying the financing contingency, if Tenant should miss
any half-months rental payment ($8,479.00), then this Lease shall terminate at
the option of the Landlord and all monies paid by Tenant to Landlord may be
kept by Landlord as liquidated damages. Tenant shall have two (2) months in
which to obtain financing. Additionally, Tenant must deliver written notice to
Landlord stating that financing has been obtained on or before February 21,
1990 or this Lease shall automatically terminate, and Landlord may keep all
monies paid by Tenant to Landlord as liquidated damages. If this Lease
terminates as described above this Paragraph then Landlord waives the right to
damages, including specific performance, other than the liquidated damages
described above. Once Tenant has delivered written notice to Landlord stating
that financing has been obtained then the financing contingency shall be deemed
satisfied and Tenant shall no longer have any rights to terminate this Lease
due to lack of financing.
Rent for any period which is for less than one (1) month shall be a prorated
portion of the monthly installment herein based upon a thirty (30) day month.
Said rental shall be paid to Landlord, without deduction of offset, except as
provided herein, in lawful money of the United States of America and at such
place as Landlord may from time to time designate in writing. Notwithstanding
anything to the contrary herein all payments are recognized to be payments as a
gross lease payment amount per square foot as it relates to the total amount
paid.
4.B. Financing Contingency.
During the first two (2) months Tenant shall seek financing sufficient, in
Tenant's determination, to allow Tenant to finish the space for use as
described herein for said location and deliver notice to Landlord that Tenant
has obtained financing. Tenant shall use its best efferts to obtain said
financing.
Tenant shall be deemed to have used its best efforts if Tenant obtains and
rejects financing which Tenant, in its good faith determination, feels is
uneconomic given the terms of such financing.
<PAGE> 3
4.C. Escalations.
Minimum Rent shall change each year by the percentage change in the Consumer
Price Index - All Urban Consumers, Denver Metropolitan Area All Item, ("CPI")
for the twelve (12) months most recently reported by the U.S. Bureau of Labor
Statistics over the CPI, for the prior twelve (12) months, but in no event more
than four (4%) percent per year. Minimum Rent actually payable shall be
adjusted once each two (2) years.
4.D. Hoods and Vents.
Both Tenant and Landlord desire for Tenant to have hoods and vents in the
location for the purpose of cooking food on site. Presently the zoning does
not allow Tenant to cook food on site. Landlord shall diligently pursue all
necessary approvals to allow on site cooking. Tenant shall fully cooperate
with Landlord in any and all efforts Landlord may undertake, including a
rezoning of the parcel, which Landlord might undertake for the purpose of
allowing Tenant to cook on site. In the event that Landlord fails in its
efforts to obtain a variance or a rezoning thus allowing Tenant to cook on
site, then Landlord shall give Tenant a rental abatement of $30,000.00 per year
for a period of 5 years. Notwithstanding anything stated to the contrary
herein, Tenant shall not be entitled to, nor shall Landlord give to Tenant any
rental subsidy after the date which is 5 years from the date of Alfalfa's grand
opening or the date on which hoods and vents are allowed for on site cooking,
whichever comes first. The abovementioned rental abatement shall not begin
until Alfalfa's opens for business. Said rental abatement shall reduce each
month's Minimum Rent by $2,500.00, but only for the abovementioned rental
abatement period. Regardless of how many years this rental abatement has or
has not been in existence, if at any time during this Lease on site cooking is
approved or allowed by any and all governmental authorities having jurisdiction
thereof then the Minimum Rent abatement shall cease to exist from that day
forward, however Tenant has no obligation to repay the previously abated
monthly amounts.
5. TERM.
A. Primary Term. The primary term of this Lease shall be ten (10) full
calendar years. The parties hereto acknowledge that certain obligations under
various articles hereof may commence prior to the lease term, i.e.
construction, hold harmless, liability insurance, etc.; and the parties agree
to be bound by these articles prior to commencement of the lease term.
B. Option to Extend. The Tenant shall have three (3) five-year options
to extend the term. Rent during each renewal shall be the market rate for
comparable space in a comparable location. However, under no circumstances
whatsoever shall the rent in any given year be less than the minimum rent in
the preceding year, as adjusted by CPI pursuant to Section 4.C. above. Market
shall be determined as follows: each side shall choose an appraiser; if the
two appraisers cannot agree they will choose a third appraiser and all three
appraisers will determine the market
<PAGE> 4
value of the space at that time. Notwithstanding anything to the contrary
stated in this Paragraph, under no circumstances shall Tenant's rent ever
increase by more than thirty (30%) percent of Tenant's Minimum rent in the
preceding year.
C. Termination Option. In the event that Alfalfa's has no 20-week period
during the first three years after the date Alfalfa's opens for business in
which the total sales for said 20 weeks is greater than $3.5 Million, then
Alfalfa's shall have an option to terminate this Lease as follows. Alfalfa's
shall have 90 days after the third anniversary of the date Alfalfa's opens for
business in which to notify Landlord that it wishes to exercise its option to
terminate this Lease. If Tenant does not give Landlord written notice of said
intention to terminate this Lease within said 90 day period, then any and all
options Alfalfa's has to terminate this Lease under this clause shall cease to
exist. If Alfalfa's notifies Landlord it wishes to exercise this option to
terminate this Lease, it must inform Landlord in said written notification the
exact date on which this Lease will terminate. This termination date cannot be
sooner than six (6) months from the date of notification not later than one (1)
year from the date of notification.
Notwithstanding the above in the event in any given 20 weeks in the first three
years Tenant has gross sales of $3.5 Million or greater during any given saie
20-week period, the option to terminate as described in thsi Paragraph 5.C.,
shall cease at that time.
Notwithstanding the above, to exercise this option Alfalfa's must deliver to
Landlord $135,000.00 in the form of a cashier's check or certified funds within
30 days after the date of notice of termination, otherwise this clause shall be
null and void and Tenant shall have no options to terminate this Lease pursuant
to this Paragraph 5.C., and the above notice of termination if already given
shall be deemed invalid and void.
6. SECURITY DEPOSIT. (Intentionally eliminated from this Lease.)
7. ADDITIONAL CHARGES.
A. Percentage Rent.
I. In addition to the Minimum Rent to be paid by Tenant pursuant to
Article 4, Tenant shall pay to Landlord at the time and in the manner herein
specified additional rent in an amount equal to one (1%) percent of all gross
sales between $175,000 - $200,000 and two (2%) percent of all gross sales
between $200,000 - $250,000 and three (3%) percent of all gross sales above
$250,000 per week which are made in, upon or from the Premises during each
calendar year of the Lease term.
II. Within thirty (30) days after the end of each calendar quarter
following commencement of rents, Tenant shall furnish to Landlord a statement
in writing, certified by Tenant to be correct, showing the total gross sales
made in, upon, or from the Premises during each week of the preceding calendar
quarter, and shall
<PAGE> 5
accompany each such statement with a payment to Landlord equal to said
hereinabove stated percentage of the total quarterly gross sales made in, upon,
or from the Premises during each calendar quarter, less the Minimum Rent for
such prior calendar quarter, if previously paid. Said statement and payment
shall be made with the succeeding month's regular minimum rental payment.
Within sixty (60) days after the end of each calendar year of the term hereof,
Tenant shall furnish to Landlord a statement in writing, certified by an
officer of Tenant to be correct, showing the total gross sales by months made
in, upon, or from the Premises during the preceding calendar year, and within
30 days thereafter an adjustment shall be made between Landlord and Tenant to
the end that the total percentage rent paid for each such calendar year shall
be a sum equal to said hereinabove stated percentage of the total gross sales
made in, upon, or from the Premises during each calendar year of the term
hereof, less the Minimum Rent pursuant to Article 4 for each such calendar
year, if previously paid, so that at the Percentage Rent, although payable
quarterly, shall be computed and adjusted on an annual basis.
III. The term "gross sales" as used in this Lease shall include the
entire gross receipts of every kind and nature from sales and services made in,
upon, of from the Premises, whether upon credit or for cash in every department
operating in the Premises, which are operated by the Tenant but not by
subtenant or subtenants, (provided that under no circumstances may the
summation of the square footage of all said subtenants exceed 1,500 square
feet), excepting therefrom any rebates and/or refunds to customers and the
amount of all sales tax receipts which has to be accounted for by Tenant to any
government, or any governmental agency and any sale not in the ordinary course
or any bulk or wholesale sale of Tenant's inventory or fixtures. Sales upon
credit shall be deemed cash sales and shall be included in the gross sales for
the period which the merchandise is delivered to the customers, whether or not
title to the merchandise passes with delivery. Transfer of merchandise and
food between stores shall not be considered gross sales.
IV. For the purpose of ascertaining the percentage rent due and/or
verifying the accuracy of any statement of gross sales, the Tenant shall keep
at its general offices books and records of all gross receipts during each
month of the term hereof, and all supporting records such as excise tax
reports, state sales tax, business and occupation tax, and gross income tax
reports; and said records will be retained for at least three (3) years after
the percentage rent period to which such records relate. All such records
shall be open to inspection and audit of Landlord and its agents at all
reasonable times upon two (2) days notice during ordinary business hours, not
exceeding once each quarter.
The Landlord may once in any calendar year cause an audit of the business of
Tenant to be made by an accountant of Landlord's selection and if the statement
of gross sales perviously made to Landlord shall be found to be inaccurate,
then and in that event, there shall be an adjustment and one party shall pay to
the other on
<PAGE> 6
demand such sums as may be necessary to settle in full the accurate amount of
said percentage rent that should have been paid for the period or periods
covered by such inaccurate statement or statements. Tenant shall keep all said
records for three (3) years. If said audit shall disclose an inaccuracy in
favor of Tenant of greater than a three (3%) percent error with respect to the
amount of gross sales reported by Tenant for the period of said report, then
the Tenant shall immediately pay to Landlord the cost of such audit; otherwise,
the cost of such audit shall be paid by Landlord. If such audit shall disclose
any inaccuracies exceeding six (6% percent, Tenant shall immediately pay to
Landlord in addition to all other sums owed to Landlord a penalty of 1.5 times
the amount of said inaccuracy.
7.B. Adjustments
I. In addition to the Minimum Rent provided in Article 4 herinabove,
and commencing at the same time as any rental commences under this Lease Tenant
shall pay to Landlord the following items, herein called Adjustments.
(a) Tenant shall pay Tenant's pro rata share, equal to the square
footage of the Premises divided by the total square footage of the Shopping
Center, of the costs set forth below. For purposes of this Lease, Tenant's pro
rata share shall be 33%. Tenant's pro rata share may decrease if the total
square footage of the Center expands, but Tenant's pro rata share shall not
increase, unless Tenant rents additional square footage from Landlord.
(i) All real estate taxes and assessments for the Shopping
Center, including land, buildings and other improvements;
(ii) Insurance premium for insurance required to be
carried by Landlord pursuant to Section 16 below on the Shopping Center,
including the Common Areas. For purposes hereof, "Common Areas" shall be all
parking lots, pylon signs for the Shopping Center, sidewalks, driveways,
service corridors and other areas used in common by tenants without the
obligation to pay rent;
(iii) Costs of maintenance, repair (other than costs of
structural repairs, of which Tenant shall not bear any portion), and
replacement of the Shopping Center including but not limited to its landscaping
and Common Areas;
(iv) Utility costs for operation of Common Areas;
(v) All costs to supervise and administer said common area,
parking lots, sidewalks, driveways, and other areas used in common by the
tenants or occupants of the Shopping Center, not to exceed in fees paid to
third parties and Landlord to supervise and administer same, an amount equal to
fifteen (15%) percent of the total costs of (i), (ii), (iii), (iv) above.
(b) (section deleted)
(c) In no event shall the foregoing charges exceed the actual
costs (including actual management fees paid) to operate the Center. Tenant
shall have the right, at its own cost not more than once each quarter, to audit
Landlord's records. If any such audit shows an overstatement of costs by more
than three (3%) percent, Landlord shall pay the cost of the audit. Landlord
shall also promptly reimburse Tenant for any overpayments made by Tenant.
<PAGE> 7
(d) From this date forward until Tenant is required to pay full
rent under this Lease, but in no event after September 21, 1990, Tenant shall
pay 1/2 of all CAM charges due on a monthly basis. Once full rent commences
Tenant shall pay to Landlord full CAM from that date forward. CAM in this
Paragraph refers to all adjustments.
II. Upon commencement of rental Landlord shall submit to Tenant a
statement of the anticipated monthly Adjustmens for the period between such
commencement and the following January and Tenant shall pay these Adjustments
on a monthly basis concurrently with the payment of the Rent. Tenant shall
continue to make said monthly payments until notified by Landlord of a change
thereof. By March 1 of each year Landlord shall give Tenant a statement,
certified by Landlord's officers, of the total actual Adjustments for the
Shopping Center for the prior calendar year and Tenant's allocable share
therof, prorated from the commencement of rental. Said notice shall also serve
as a notice of future monthly adjustment for the current year. In the event
the total of the monthly payments which Tenant has made for the prior calendar
year is less than the Tenant's actual share of such Adjustments then Tenant
shall pay the difference in a lump sum within twenty days after receipt of such
statement from Landlord. Any over-payment by Tenant shall be refunded by
Landlord within 20 days after receipt of such notice. The actual Adjustments
for the prior year shall be used for purposes of calculating the anticipated
monthly Adjustments for the then current year with actual determination of such
Adjustments after each calendar year as above provided; excepting that in any
year in which resurfacing of parking areas is completed Landlord shall be
permitted to include the cost of same as part of the estimated monthly
Adjustments, amortized over two years. Once the term has expired and Tenant
has vacated the Premises, when the final determination is made of Tenant's
share of said Adjustments for the year in which this Lease terminates, Tenant
shall immediately pay any increase due over the estimated Adjustments
previously paid and, conversely, any overpayment made shall be immediately
rebated by Landlord to Tenant. Failure of Landlord to submit statements as
called for herein shall not be deemed to be a waiver of Tenant's requirement to
pay sums as herein provided.
8. USES PROHIBITED. Tenant shall not do or permit anything to be done in or
about the Premises nor bring or keep anything therin which is not within the
permitted use of the premises which will in any way increase the existing rate
of or affect any fire or other insurance upon the Building or any of its
contents, or cause a cancellation of any insurance policy covering said
Building or any part thereof or any of its contents. Tenant shall not do
anything in or about the Premises which will in any way obstruct or interfere
with the rights of other tenants or occupants of the Building or injure them or
use or allow the Premises to be used for any unlawful or objectionable purpose;
nor shall Tenant cause, maintain or permit any nuisance in, on or about the
Premises. Tenant shall not commit or allow to be committed any waste in or
upon the Premises.
<PAGE> 8
9. COMPLIANCE WITH LAW. Tenant shall not use the Premises, or permit anything
to be done in or about the Premises, which will in any way conflict with any
law, stature, ordinance or governmental rule or regulation now in force or
which may hereafter be enacted or promulgated. Tenant shall, at its sole cost
and expense, promptly comply with all laws, statutes, ordinances and
governmental rules, regulations or requirements now in force or which may
hereafter be in force and with the requirements of any board of fire
underwriters or other similar bodies now or hereafter constituted relating to
or affecting the condition, use or occupancy of the Premises, excluding
material or structural changes not related to or required by Tenant's
improvements or specific use of the Premises. The judgment of any court of
competent jurisdiction or the admission of Tenant in any action against Tenant,
whether Landlord be a party thereto or not, that Tenant has violated any law,
statute, ordinance or governmental rule, regulation or requirement, shall be
conclusive of that fact as between the Landlord and Tenant.
10. ALTERATIONS AND ADDITIONS. Tenant shall not make or allow to be made any
material alterations, additions or improvements to or of the Premises or any
part thereof without first obtaining the written consent of Landlord and any
alterations, additions or improvements to or of said Premises, including, but
not limited to, wall covering, paneling and built-in cabinet work, but
excepting movable furniture and trade fixtures, shall become a part of the
realty and belong to the Landlord at the termination of this Lease and shall be
surrendered with the Premises. In the event Landlord consents to the making of
any material alterations, additions or improvements to the Premises by Tenant,
the same shall be made by Tenant at Tenant's sole cost and expense.
11. REPAIRS
11.A. By entry hereunder, Tenant shall be deemed to have accepted the
Premises as being in good, sanitary order, condition and repair, latent defects
excepted. Tenant shall, at Tenant's sole cost and expense, keep the order,
condition and repair, latent defects excepted. Tenant shall, at Tenant's sole
cost and expense, keep the Premises and every part thereof in good condition
and repair (except as hereinafter provided with respect to Landlord's
obligations) including without limitation, the maintenance, replacement and
repair of any storefront, doors, window casements, glazing, heating and
air-conditioning system (when there is an air-conditioning system, Tenant shall
obtain a service contract for repairs and maintenance of said system, said
maintenance contract to conform to the requirements under the warranty, if any,
on said system), plumbing, pipes, electrical wiring and conduits. Tenant
shall, upon the expiration or sooner termination of this Lease hereof,
surrender the Premises to the Landlord in good condition, broom clean, ordinary
wear and tear and damages for which Tenant has compensated Landlord, unless it
states elsewhere in this Lease that Tenant has no such obligation, damage from
causes beyond the reasonable control of Tenant excepted. Any damage to
adjacent premises caused by Tenant's contractors or Tenant's agents shall be
repaired at the sole cost and expense of Tenant. Notwithstanding
<PAGE> 9
anything stated to the contrary in this Paragraph, Tenant shall only be
responsible for the maintenance and repair of items Tenant installs.
11.B. Notwithstanding the provisions of Article 11.A. herinabove, Landlord
shall repair and maintain the structural portions of the Shopping Center,
including the exterior walls. Tenant shall reimburse Landlord for amounts not
covered by insurance and incurred by Landlord, to the extent such maintenance
and repairs are caused in part or in whole by the negligence of Tenant, its
agents, servants, or employees. Landlord shall not be liable for any failure
to make such repairs or to perform any maintenance unless such failure shall
persist for 5 days in the event of an emergency or 20 days for all other
repairs, after written notice of the need of such repairs or maintenance is
given to Landlord by Tenant. Additionally, Landlord shall not be liable if
Landlord has commenced work in the specified 5 of 20 day period and diligently
pursues said repairs to completion, even if said repairs take longer than the
said 5 or 20 days to complete. Except as provided in Article 25 hereof, there
shall be no abatement of rent and no liability of Landlord by reason of any
injury to or interference with Tenant's business arising from the making of any
repairs, alterations or improvements in or to any portion of the Building or
the Premises or in or to fixtures, appurtenances and equipment therein.
12. LIENS. Tenant shall keep the Premises and the property in which the
Premises are situated free from any liens arising out of any work performed,
materials furnished or obligations incurred by or on behalf of Tenant.
Landlord may require, at Landlord's sole option, that Tenant shall provide to
Landlord, at Tenant's sole cost and expense, a lien and completion bond in an
amount equal to the estimated cost of any improvements, additions, or
alterations in the Premises which exceed $10,000.00 and which the Tenant
desires to make, to insure Landlord against any liability for mechanics' and
materialmen's liens and to insure completion of the work.
12. ASSIGNMENT AND SUBLETTING. Tenant shall not either voluntarily, or by
operation of law, assign, transfer, mortgage, pledge, hypothecate or encumber
this Lease or any interest therein, and shall not sublet the said Premises or
any part thereof, or any right or privelege appurtenant thereto, other than as
sublet of the portion of the space to a floral shop concession and/or
delicatessen or cafe, and the total of the above sublet space shall not exceed
1,500 square feet, or allow any other person (the employees, agent, servants
and invitees of Tenant excepted) to occupy or use the said Premises, or any
portion therof, without first obtaining the written consent of Landlord, which
consent shall not be unreasonably withheld. A consent to one assignment,
subletting, occupation or use by any other person shall not be deemed to be a
consent to any subsequent assignment, subletting, occupation or use by any
other person. Consent to any such assignment or subletting shall in no way
relieve Tenant of any liability under this Lease. Any such assignment or
subletting without such consent shall be void and shall, at the option of the
Landlord, constitute a default under the terms of this Lease.
<PAGE> 10
In the event that Landlord shall consent to a sublease or assignment hereunder,
Tenant shall pay Landlord reasonable fees, not to exceed Three Hundred and
No/100ths ($300.00) Dollars, incurred in connection with the processing of
documents necessary to giving of such consent. Tenant cannot sublet to any
tenant outside of the Tenant's use as described in the use clause, nor may
Tenant change its use without obtaining the prior written consent of Landlord.
It shall be reasonable for Landlord to withhold consent for any use or
subtenant not within the stated use allowed herein which would compete with any
other tenant in the center.
14. HOLD HARMLESS. Tenant shall indemnify and hold harmless Landlord agaist
and from any and all claims arising from Tenant's use of the Premises or from
the conduct of its business and shall further indemnify and hold harmless
Landlord against and from any and all claims arising from any breach or default
in the performance of any material obligation on Tenant's part to be performed
under the terms of this Lease, or arising from any misconduct or negligence of
the Tenant, or any officer, agent or employee of Tenant, and from all costs,
attorney's fees, and liabilities incurred in or about the defense of any such
claim or any action or proceeding brought thereon and in case any action or
proceeding be brought against Landlord by reason of such claim, Tenant upon
notice to Landlord may assume the defense of the same at Tenant's expense by
reasonably comptetent counsel. Tenant, as a material part of the consideration
to Landlord, hereby assumes all risk of damage to property or injury to persons
in, upon or about the Premises, from any cause other than Landlord, its agents
or employees misconduct or negligence; and Tenant hereby waives all claims for
which Tenant has assumed risk above against Landlord. Tenant shall give notice
to Landlord in case of casualty or accidents in the Premises as soon as Tenant
becomes aware of such occurrence.
Landlord or its agents shall not be liable for any loss or damage to persons or
property resulting from fire, explosion, falling plaster, steam, gas,
electricity, water or rain which may leak from any part of the Building or from
the pipes, appliances or plumbing works therein or from the roof, street or
subsurface or from any other place resulting from dampness or any other cause
whatsoever, unless caused by or due to the negligence or misconduct of
Landlord, its agents, servants or employees. Landlord or its agents shall not
be liable for interference with the light or air in or about the Premises.
15. SUBROGATION. Landlord and Tenant hereby mutually waive their respective
rights of recovery against each other for any loss insured by fire, extended
coverage and other property insurance policies existing for the benefit of the
respective parties. Each party shall apply to their insurers to obtain said
waivers. Each party shall obtain any special endorsements, if required by
their insurer to evidence compliance with the aforementioned waiver.
<PAGE> 11
16. LIABILITY INSURANCE. Tenant shall, at Tenant's expense, obtain and keep in
force during the term of this Lease a policy of comprehensive public liability
insurance insuring Landlord and Tenant against any liability arising out of the
ownership, use, occupancy or maintenance of the Premises as described in
Paragraph 2 of this Lease. Tenant shall also carry liability coverage for
Tenant's service area in the alley and Tenant's sidewalk for any and all
accidents which occur due to Tenant's operations in said area. Such insurance
shall be in the amount of not less than $300,000.00 for injury or death of one
person in any on accident or occurrence and in the amount of not less than
$500,000.00 for injury or death of more than one person in any one accident or
occurrence. Such insurance shal further insure Landlord and Tenant against
liability for property damage of at least $50,000.00. The limit of any such
insurance shall not, however, limit the liability of the Tenant hereunder.
Tenant may provide this insuarance under a blanket policy, provided that said
insurance shall have a Landlord's protective liability endorsement attached
thereto. If Tenant shall fail to procure and maintain said insurance, Landlord
may, but shall not be required to, procure and maintain same, but at the
expense of Tenant. Insurance shall be by Grocer's Insurance or by another
company of greater or equal financial strength. Tenant shall deliver to
Landlord, prior to right of entry, copies of policies of liability insurance
required herein or certificates evidencing the existence and amounts of such
insurance with loss payable clauses satisfactory to Landlord. No policy shall
be cancelable or subject to reduction of coverage without notice to Landlord.
All such policies shall be written as primary policies not contributing with
and not in excess of coverage which landlord may carry.
Landlord shall obtain and maintaing the following insurance on the Shopping
Center throughout the term of this Lease and any renewals thereof:
(a) public liability insurance in an amount not less than $500,000 per
person and $1,000,000 per occurrence;
(b) fire and extended coverage insurance on the Center in not less than
the full replacement value thereof as adjusted not less than once each year to
include increases in replacement value. Such insurance shall provide
protection against any peril generally indluded in the classification of "All
Risk" coverage, including protection against sprinkler damage and malicious
mischief. The amount of the deductible shall not exceed $5,000 per occurrence.
17. UTILITIES. Tenant shall pay for all water, gas, heat, light, power, sewer
charges, telephone service and all other services and utilities supplied to the
Premises, together with any taxes thereon. If any such services are not
separately metered to Tenant, Tenant shall pay thirty-one (31%) percent of all
charges jointly metered with other premises.
18. PERSONAL PROPERTY TAXES. Tenant shall pay, or cause to be paid, before
delinquency any and all taxes levied or assessed and which become payable
during the term hereof upon all Tenant's leasehold improvements, equipment,
furniture, fixtures, and any other personal property located in the Premises.
In the event any or all of the Tenant's leasehold improvements, equipment,
furniture,
<PAGE> 12
fixtures and other personal property shall be assessed and taxed with the real
property, Tenant shall pay to Landlord its share of such taxes within ten (10)
days after delivery to Tenant by Landlord of a statement in writing setting
forth the amount of such taxes applicaple to Tenant's property.
19. RULES AND REGULATIONS. Tenant shall faithfully observe and comply with the
rules and regulations attached hereto. The rules and regulations shall be
binding upon the Tenant upon delivery of a copy of them to Tenant. Landlord
shall not be responsible to Tenant for the non performance of any said rules
and regulations by any other tenants or occupants, unless said violation
substantially interfered with or damages Tenant's business and Landlord had
reasonable written notice and failed to act. Any further rules and regulations
shall be by mutual consent.
20. HOLDING OVER. If Tenant remains in possession of the Premises or any part
thereof after the expiration of the term hereof without the express written
consent of Landlord, such occupancy shall be a tenancy from month to month at a
rental in the amount of the last Monthly minimum Rent, plus all other charges
payable hereunder, and upon all the terms herof applicable to a month to month
tenancy.
21. ENTRY BY LANDLORD. Landlord reserves, and shall at any and all times have,
the right to enter the Premises to inspect the same, to submit said Premises to
prospective purchasers (or within six months of the termination hereof to
tenants) or to post notices of non-responsibility, to repair the Premises and
any portion of the Building of which the Premises are a part that Landlord may
deem necessary or desirable, without abatement of rent, and may for that
purpose erect scaffolding and other necessary structures where reasonably
required by the character of the work to be performed, always providing that
the entrance to the Premises shall not be unreasonably blocked thereby, and
further providing that the business of the Tenant shall not be interfered with
unreasonably. Landlord shall have the right to use any and all means which
Landlord may deem proper to open said doors in an emergency, in order to obtain
entry to the Premises without liability to Tenant except for any failure to
exercise due care for Tenant's property and any entry to the Premises obtained
by Landlord by any of said means, or otherwise, shall not under any
circumstances by construed or deemed to be a forcible or unlawful entry into,
or a detainer of, the Premises, or an eviction of Tenant from the Premises or
any portion thereof.
22. TENANT'S DEFAULT. The occurrence of any one or more of the following
events shall constitute a default and breach of this Lease by Tenant.
22.A. The vacating or abandonment of the Premises by Tenant.
<PAGE> 13
22.B. The failure by Tenant to make any payment of rent or any other
payment required to be made by Tenant hereunder, as and when due, where such
failure shall continue for a period of forty (40) days after written notice
thereof by Landlord to Tenant.
22.C. The failure by Tenant to observe or perform any of the material
covenants, conditions, or provisions of this Lease to be observed or perfomed
by the Tenant, other than described in Article 22.B., above, where such failure
shall continue for a period of thiry (30) days after written notice hereof by
Landlord to Tenant; provided, however, that if the nature of Tenant's default
is such that more than thirty (30) days are reasonably required for its cure,
then Tenant shall not be deemed to be in default if Tenant commences such cure
within said thirty (30) days period and thereafter diligently prosecutes such
cure to completion.
22.D. The making by Tenant of any general assignment or general arrangment
for the benefit of creditors; or the filing by or against Tenant of a petition
to have Tenant adjudged a bankrupt, if not withdrawn in 60 days or a petition
or reorganization or arrangement under any law relating to bankruptcy (unless,
in the case of a petition filed against Tenant, the same is dismissed within
sixty (60) days); or the appointment of a trustee or a receiver to take
possession of substantially all of Tenant's assets located at the Premises or
of Tenant's interest in this Lease, where possession is not restored to Tenant
within thirty (30) days; or the attachment, execution or other judicial seizure
of substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where such seizure is not discharged in thirty (30)
days.
23. REMEDIES IN DEFAULT. In the event of any such default or breach by Tenant,
Landlord may at any time thereafter, in his sole discretion, with or without
notice or demand and without limiting Landlord in the exercise of a right or
remedy which Landlord may have by reason of such default or breach:
23.A. Terminate Tenant's right to possession of the Premises by any lawful
means, in which case this Lease Landlord shall teminate and Tenant shall
immediatly surrender possession of the Premises to Landlord. In such event
Landlord shall be entitled to recover from Tenant all reasonable damages
incurred by Landlord by reason of Tenant's default including, but not limited
to, the cost of recovering possession of the Premises; expenses of reletting,
including necessary renovation and alteration of the Premises; reasonable
attorney's fees' and the worth at the time of award by the court having
jurisdiction thereof of the amount by which the unpaid rent and other charges
and Adjustments called for herein for the balance of the term at the time of
such award discounted to present value, exceeds the amount of such loss for the
same period that Tenant proves could be reasonably avoided; and that portion of
any leasing commission paid by Landlord and applicable to the unexpired term of
this Lease. Unpaid installments of rent or other sums shall bear interest from
the date due at 15% per annum; or
<PAGE> 14
23.B. Maintain Tenant's right to possession, in which case this Lease shall
continue in effect whether or not Tenant shall have abandoned the Premises. In
such event Landlord shall be entitled to enforce all of Landlord's rights and
remedies under this Lease, including the right to recover the rent and any
other charges and Adjustments as may become due hereunder, and Landlord shall
use its reasonable efforts to relet the Premises; or
23.C. Pursue any other remedy now or hereafter available to Landlord under
the laws or judicial decisions of the State in which the Premises are located.
24. DEFAULT BY LANDLORD. Landlord shall not be in default unless Landlord
fails to perform obligations required of Landlord within a reasonable time, but
in no event later than thirty (30) days after written notice by Tenant to
Landlord and to the holder of any first mortgage or deed of trust covering the
Premises whose name and address shall have theretofore been furnished to Tenant
in writing, specifying wherein Landlord has failed to perform such obligation;
provided, however, that if the nature of Landlord's obligation is such that
more than thirty (30) days are required for performance then Landlord shall not
be in default if Landlord commences performance within such thirty (30) day
period and thereafter diligently prosecutes the same to completion. In no
event shall Tenant have the right to terminate this Lease as a result of
Landlord's default and Tenant's remedies shall be limited to damages and/or an
injunction.
25. RECONSTRUCTION. In the event the Premises are damaged by fire or other
perils covered by extended coverage insurance required to be held by Landlord
pursuant to Section 16 above, Landlord agrees to forthwith repair same, and
this Lease shall remain in full force and effect, except that Tenant shall be
entitled to a proportionate reduction of the Minimum Rent and Adjustments from
the date of damage and while such repairs are being made, such proportionate
reduction to be based upon the extent to which the damage and making of such
repairs shall reasonably interfere with the business carried on by the Tenant
in the Premises. If the damage is due to the negligence or misconduct of
Tenant or its employees, there shall be no abatement of rent.
In the event the Premises are damaged as a result of any cause other than the
perils covered by fire and extended coverage insurance required to be held by
Landlord pursuant to Section 16 above, then Landlord shall forthwith repair the
same, provided the extent of the destruction be less than ten (10%) percent of
the then full replacement cost of the Premises. In the event the destruction
of the Premises is to an extent of ten (10%) or more of the full replacement
cost then Landlord shall have the option; (1) to repair or restore such damage;
this Lease continuing in full force and effect, but the Minimum Rent to be
proportionately reduced as hereinabove in this Article provided; or (2) give
notice to Tenant at any time within sixty (60) days after such damage,
terminating this Lease as of the date
<PAGE> 15
specified in such notice, which date shall be no more than thirty (30) days
after the giving of such notice. In the event of giving such notice, this
Lease shall expire and all interest of the Tenant in the Premises shall
terminate on the date so specified in such notice and the Minimum Rent, reduced
by a proportionate reduction, based upon the extent, if any, to which such
damage interfered with the business carried on by the Tenant in the Premises,
shall be paid up to date of said such termination. If any
repair/reconstruction shall take longer than 270 days to complete, Landlord
shall give Tenant notice thereof within 30 days after the date of damage and
Tenant may, if it elects, terminate this Lease on written notice to Landlord.
Notwithstanding anything to the contrary contained in this Article, Landlord
shall not have any obligation whatsoever to repair, reconstruct or restore the
Premises when the damage resulting from any casualty covered under this Article
occurs during the last twenty-four months of the term of this Lease or any
extension thereof.
Landlord shall not be required to repair any injury or damage by fire or other
cause, or to make any repairs of replacements, of any leasehold improvements,
fixtures, or other personal property of Tenant. If Landlord chooses to
terminate the Lease the Tenant shall be entitled to receive compensation for
the unamortized portion of Tenant's improvements and equipment less any
insurance proceeds paid to Tenant and less th resale value of Tenant's
equipment.
26. EMINENT DOMAIN. If more than twenty-five (25%) percent of the Premises
shall be taken or appropriated by any public or quasi-public authority under
the power of eminent domain, either party hereto shall have the right, at its
option, within thirty (30) days after said taking, to terminate this Lease upon
thirty (30) days written notice. If more than 25% of the Premises are taken
(and neither party elects to terminate as herein provided), the Minimum Rent
thereafter to be paid shall be equitably reduced. If any substantial part of
the Shopping Center other than the Premises may be so taken or appropriated,
Landlord shall within sixty (60) days of said taking have the right at its
option to terminate this Lease upon written notice to Tenant. In the event of
any taking or appropriation whatsoever, Landlord shall be entitled to any and
all awards and/or settlements which may be given, other than for Tenant's
property, and Tenant shall have no claim against Landlord for the value of any
unexpired term of this Lease. If either party terminates this Lease the Tenant
shall be entitled to apply to the condemning authority for compensation for the
unamortized portion of Tenant's improvements and equipment less awards paid to
Tenant and less the resale value of Tenant's equipment.
27. PARKING AND COMMON AREAS. Landlord reserves the right to change the size,
entrances, exits, traffic lanes and the boundaries and locations of such common
areas, provided such do not reduce the amount of parking spaces adjacent to the
Premises by more than three spaces or obstruct access/visibility to the
Premises.
<PAGE> 16
27.A. Prior to the date of Tenant's opening for business in the Premises,
Landlord shall cause said common and parking area or areas to be graded,
surfaced, marked and landscaped at no expense to Tenant.
27.B. The Landlord shall keep said automobile parking and common areas in a
neat, clean and orderly condition and shall repair any damage to the facilities
thereof, but all expenses in connection with said automobile parking and common
areas shall be charged and prorated in the manner as set forth in Article 7
thereof.
27.C. Tenant, for the use and benefit of Tenant, its agents, employees,
customers, licensees and sub-tenants, shall have the non-exclusive right in
common with Landlord, and other present and future owners, tenants and their
agents, employees, customers, licensees, and sub-tenants, to use said common
and parking areas during the entire term of this Lease, or any extension
thereof, for ingress and egress, and automobile parking.
27.D. The Tenant, in the use of said common and parking areas, agrees to
comply with such reasonable rules and regulations for parking as the Landlord
may adopt from time to time for the orderly and proper operation of said common
and parking areas. Such rules may include but shall not be limited to the
following: (1) The restricting of employee parking to a limited, designated
area or areas. Said rules and regulations shall be fair and equitable to all
Tenants; and (2) The regulation of the removal, storage and disposal of
Tenant's refuse and other rubbish at the sole cost and expense of Tenant.
27.E. Landlord shall establish a snow removal policy 7 days per week.
Landlord will use all reasonable efforts to keep snow removed from the parking
lot. Additionally, the lot will be shoveled whenever there is 1" or more of
accumulation. Whenever necessary all shoveled snow shall be hauled from the
site. No snow shall be stored in or block parking areas in the Center.
28. SIGNS. The Tenant may affix and maintain upon the exterior walls of the
Premises only such signs, advertising placards, names, insignia, trademanks and
descriptive material as shall have first received the written approval of the
Landlord as to type, size, color, location, copy nature and display qualities.
All signs affixed within the Premises shall not be subject to Landlord's
consent. However, Landlord has the right to cause Tenant to remove any and all
signs visible from the exterior of the Premises which are offensive. Anything
to the contrary in this Lease notwithstanding, Tenant shall not affix any sign
to the roof. Tenant shall, however, erect one sign on the front of the
premises not later than the date Tenant opens for business, in accordance with
a design to be prepared by Tenant and approved in writing by Landlord.
Landlord hereby approves the sign design attached hereto as Exhibit___.
<PAGE> 17
29. DISPLAYS. The Tenant may not display or sell merchandise within the
control of Tenant to be stored or to remain outside the defined exterior walls
and permanent doorways of the Premises except for outdoor plants, flowers,
vegetables,and gardening supplies, and all other merchandise during special
promotions. Twelve (12) promotions per year shall be allowed which may use a
maximum of 6 parking spaces. Tenant shall also be allowed one special "dog
wash promotion." Said promotion may use a maximum of 15 parking spaces.
Tenant further agrees not to install any exterior lighting, amplifiers or
similar devices or use in or about the Premises any advertising medium which
may be heard or seen outside the Premises, such as flashing lights,
searchlights, loudspeakers, phonographs or radio broadcasts. Landlord shall
allow Tenant to store grocery carts outside on Tenant's sidewalk in front of
Tenant's Premises.
30. AUCTIONS. Tenant shall not conduct or permit to be conducted any sale by
auction in, upon or from the Premises whether said auction be voluntary,
involuntary, pursuant to any assignment for the payment of creditors or
pursuant to any bankruptcy or other insolvency proceeding.
31. HOURS OF BUSINESS. Subject to the provisions of Article 25 hereof, Tenant
shall continuously during the entire term hereof conduct and carry on Tenant's
business in the Premises and shall keep the Premises open for business and
cause Tenant's business to be conducted therein 7 days per week (other than
holidays), and a minimum of 56 hours per week; provided, however, that this
provision shall not apply if the Premises should be closed and the business of
Tenant temporarily discontinued therein on account of strikes, lockouts or
similar causes beyond the reasonable control of Tenant. Compared to other
Alfalfa's stores in the region, and compared to other specialty grocery stores
if this is the only remaining Alfalfa's, Tenant shall keep the Premises
adequately stocked with merchandise, and with sufficient sales personnel to
care for the patronage.
In the event of breach by the Tenant of any of the conditions contained in this
Article 31 which continues for more than 15 days after written notice from
Landlord, the Landlord shall have, in addition to any and all remedies herein
provided, the right at its option to collect not only the Minimum Rent herein
provided, but additional rent at the rate of one-thirtieth (1/30) of the
Minimum Rent herein provided for each and every day that the Tenant shall fail
to conduct its business as herein provided; said additional rent shall be
deemed to be in lieu of any percentage rent that might have been earned during
such period of the Tenant's failure to conduct its business as herein provided.
32. MERCHANT'S ASSOCIATION. This paragraph has been intentionally eliminated
form this Lease.
33. GENERAL PROVISIONS.
<PAGE> 18
(i) Plats and Riders. Clauses, plats, riders and addendums, if any,
affixed to this Lease are a part hereof.
(ii) Waiver. The waiver by Landlord of any term, covenant or condition
herein contained shall not be deemed to be a waiver of such term, covenant or
condition or any subsequent breach of the same or any other term, covenant or
condition herein contained. The subsequent acceptance of rent hereunder by
Landlord shall not be deemed to be a waiver of any preceding default by Tenant
of any term, covenant or condition of this Lease, other than the failure of the
Tenant to pay the particular rental so accepted, regardless of Landlord's
knowledge of such preceeding default at the time of the acceptance of such
rent.
(iii) Joint Obligation. If there be more than one Tenant the
obligations hereunder imposed shall be joint and several.
(iv) Marginal Headings. The marginal headings and article titles to
the articles of this Lease are not a part of the Lease and shall have no effect
upon the construction or interpretation of any part hereof.
(v) Time. Time is of the essence of this Lease and each and all of its
provision in which performance is a factor.
(vi) Successors and Assigns. The covenants and conditions herein
contained, subject to the provisions as to assignment, apply to and bind the
heirs, successors, executors, administrators and assigns of the parties hereto.
(vii) Recordation. Neither Landlord not Tenant shall record this Lease,
but a short form memorandum hereof may be recorded at the request of the
Landlord or Tenant.
(viii) Quiet Possession. Upon Tenant paying the rent reserved hereunder
and observing and performing all of the material covenants, conditions and
provisions on Tenant's part to be observed and performed hereunder, Tenant
shall have quiet possession of the Premises for the entire term hereof, subject
to all the provisions of this Lease.
(ix) Late Charges. Tenant hereby acknowledges that late payment by
Tenant to Landlord of rent or other sums due hereunder will cause Landlord to
incur costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges and late charges which may be impose upon
Landlord by terms of any mortgage or trust deed covering the Premises.
Accordingly, if any installment of rent or any sum due from Tenant shall not be
received by Landlord or Landlord's designee within twenty (20) days after
written notice that said amount is past due, then Tenant shall pay to Landlord
a late charge equal to 2% per month, plus any attorney's fees incurred by
Landlord by reason of Tenant's failure to pay rent and/or other charges when
due hereunder. The parties hereby agree that such late charges represent a
fair and reasonable estimate of the cost that Landlord will incur by reason of
the late payment by Tenant. Acceptance of such late charges by the Landlord
shall in no event constitute a waiver of Tenant's default with respect to such
overdue amount, nor prevent Landlord from exercising any of the other rights
and remedies granted hereunder.
<PAGE> 19
(x) Prior Agreements. This Lease contains all of the agreements of the
parties hereto with respect to any matter covered or mentioned in this Lease,
and no prior agreements or understanding pertaining to any such matters shall
be effective for any purpose. No provision of this Lease may be amended or
added to except by an agreement in writing signed by the parties hereto or
their respective successors in interest. This Lease shall not be effective or
binding on any party until fully executed by both parties hereto.
(xi) Inability to Perform. This Lease and the obligations of the
Tenant and Landlord hereunder shall not be affected or impaired because the
other is unable to fulfill any of its obligations hereunder or is delayed in
doing so, if such inability or delay is caused by reason or strike, labor
troubles, acts of God, or any other cause beyond the reasonable control of the
Landlord.
(xii) Partial Invalidity. Any provision of this Lease which shall prove to
be invalid, void, or illegal shall in no way affect, impair or invalidate any
other provision hereof and such other provision shall remain in full force and
effect.
(xiii) Cumulative Remedies. No remedy or election hereunder shall be
deemed exclusive but shall, whenever possible, be cumulative with all other
remedies at law or in equity.
(xiv) Choice of Law. This Lease shall be governed by the laws of the State
of Colorado.
(xv) Attorney's Fees. In the event of any action or proceeding brought by
either party against the other under this Lease the prevailing party shall be
entitled to recover for the fees of its attorneys in such action of
proceedings, including costs of appeal, if any, in such amount as the court may
adjudge reasonable as attorneys' fees. In addition, should it be necessary for
Landlord to employ legal counsel to enforce any of the provision herein
contained, Tenant agrees to pay all attorney's fees and court costs reasonably
incurred.
(xvi) Sale of Premises by Landlord. In the event of any sale of the
Premises by Landlord, Landlord shall be and is hereby entirely freed and
relieved of all liability under any and all of its covenants and obligations
contained in or derived from this Lease arising out of any act, occurrence or
omission occurring after the consummation of such sale; and the purchaser, at
such sale or any subsequent sale of the Premises shall be deemed, without any
further agreement between the parties or their successors in interest or
between the parties and any such purchaser, to have assumed and agreed to carry
out any and all of the covenants and obligations of the Landlord under this
Lease.
(xvii) Subordination, Attornment. Upon request of the Landlord, Tenant
shall in writing subordinate its rights hereunder to the lien of any mortgage
or deed of trust, to any bank, insurance company or other lending institution,
now or hereafter in force against the Premises, and to all advances made or
hereafter to be made upon the security thereof, provided that any such party
shall execute a binding nondisturbance agreement with Tenant.
In the event any proceedings are brought for foreclosure, or in the event
of the exercise of the power of sale under any mortgage or deed of trust made
by the Landlord covering the Premises, the Tenant shall attorn to the purchaser
upon any
<PAGE> 20
such foreclosure or sale and recognize such purchaser as the Landlord under
this Lease.
The provisions of this Article to the contraty notwithstanding, and so long
as Tenant is not in defaust hereunder, this Lease shall remain in full force
and effect for the full term thereof.
(xviii) Notices. All notices and demands which may or are to be required
or permitted to be given by either party on the other hereunder shall be in
writing. All notices and demands by the Landlord to the Tenant shall be sent
by United States Mail, postage prepaid, addressed to the Tenant at the
Premises, and to the address hereinbelow, or to such other place as Tenant may
from time to time designate in a notice to the Landlord. All notices and
demands by the Tenant to the Landlord shall be sent by United States Mail,
postage prepaid, addressed to the Landlord at the address set forth herein, and
to such other person or place as the Landlord may from time to time designate
ina notice to the Tenant.
To Landlord at: 1615 California Street, Suite 707
Denver, Colorado 80202
To Tenant at: 205 Canyon, Suite 200
Boulder, Colorado 80302
Attention: S.M. Hassan
(xix) Tenant's Statement. Tenant shall at any time and from time to time,
upon not less than ten days prior written notice from landlord, execute,
acknowledge and deliver to Landlord a statement in writing (a) certifying that
this Lease is unmodified and in full force and effect (or, if modified, stating
the nature of such modification and certifying that this Lease as so modified
is in full force and effect), and the date to which the rental and other
charges are paid in advance, if any, and (b) acknowledging that there are not,
to Tenant's knowledge, any uncured defaults on the part of the Landlord
hereunder, or specifying such defaults if any are claimed, and (c) setting
forth the date of commencement of rents and expiration of the term hereof. Any
such statement may be relied upon by the prospective purchaser or encumbrancer
of all or any protion of the real property of which the Premises are a part.
(xx) Authority of Tenant. If Tenant is a corporation, each individual
executing this Lease on behalf of said corporation represents and warrants that
he is duly authorized to execute and deliver this Lease on behalf of said
corporation, in accordance with the bylaws of said corporation, and that this
Lease is binding upon said corporation.
(xxi) This agreement is being executed on January 22nd, 1990, effective
January 22nd, 1990
(Document shows signatures for Tenant, 201 University, Inc., General Partner of
Alfalfa's Cherry Creek, Inc.; and Landlord, Country Club Plaza Associates)
<PAGE> 21
GENERAL ADDENDUM
Addendum to that lease dated the 19th day of January, 1990, by and between
COUNTRY CLUB PLAZA ASSOCIATES, herein called "LANDLORD," and ALFALFA'S CHERRY
CREEK, INC. herein called "TENANT."
WHEREAS, it is intended that the parties to that lease add additional terms
therein and to have full force and effect as though set forth in said lease.
TO to extent this Addendum is at variance with the body of this Lease the
General Addendum shall prevail.
NOW, THEREFORE, in consideration of mutual promises, TEN DOLLARS and other
valuable consideration, sufficiency and receipt acknowledged, the parties
herein further agree as follows:
1. COMMON AREA. Tenant and its employees and invitees are, except as otherwise
specifically provided in this lease, priveleged to use the parking and common
areas in common with other occupants of the shopping center during the term of
the lease. Landlord shall keep or cause to be kept said common area in a clean
condition, properly lighted and landscaped and shall repair and replace any
damage to the facilities thereof and shall generally maintain the same in good
condition and repair. The costs of such common area expenses shall be charged
and prorated and paid by tenant in the manner previously set forth. The phrase
"common area expenses" as used herein shall include, but not be limited to all
sums expended in connection with said common area for all general maintenance,
replacement and repairs; maintenance, replacement and repair of parking lot,
sidewalks, curbs and shopping center signs; maintenance, replacement and repair
of lawn sprinkler systems, planting and landscaping, pylon and directional
signs and other markers and bumpers; maintenance, replacement and repair of any
fire protection systems, elevators, escalators, roof, common area lighting
systems, common area storm drainage systems; personnel to implement such
services, but not including fees to management companies including, if Landlord
deems necessary the cost of security gruads; and a reasonable allowance for
Landlord's or a third party's supervision of said common area in an amount not
to exceed fifteen percent (15%) of the all adjustments for each lease year.
Adjustments shall include but not be limited to taxes, insurance, assessments,
and any and all common area expenses. Landlord may cause any or all of said
services to be provided by an independent contractor or contractors. Should
Landlord make available additional land for parking or other common area
purposes, then said expenses shall also include all expenses incurred in
connection with said additional land provided such land is used exclusively for
the shopping center, provided that such does not
<PAGE> 22
interfere with the visibility or access to the Premises, nor eliminates more
than 3 spaces adjacent to Premises.
2. SIGNAGE. Tenant shall erect and attach, at Tenant's sole cost and expense,
its standard identifying sign on the fascia of the front of the premises; or,
if Tenant is a food court tenant in the soffit area above the Tenant's counter,
subject to and in accordance with all rules, regulations, laws, ordinances,
having jurisdiction theref, and subject to Exhibit "C".
Tenant must obtain written approval from Landlord for any and all exterior
signage to be erected at this shopping center. All signage to be erected by
Tenant must be approved by the proper governmental authorities having
jurisdiction therein. Tenant shall be responsible for any and all costs of
said signage.
3. ADJUSTMENTS. All rent adjustments, expenses and all monies due under this
lease shall be considered as additional rent and payable as such.
4. PLATE GLASS INSURANCE. The Tenant whall be responsible for the maintenance
and insuring of the plate glass on the Premises, unless breakage thereof
results from Landlord's negligence or misconduct.
5. FLOOR AREA DEFINITION. The term "Floor Area" as used in the Lease shall
include all areas for the exclusive use and occupancy by an occupant, measures
from the exterior surface of exterior walls (and from the exterior thereof in
the case of openings) and from the center of walls dividing the premises from
other prmises.
6. MINIMUM RENT. (This paragraph has been intentionally eliminated from this
Addendum)
7. SALES TAX (GROSS RECEIPTS TAX). In addition to all other payments, the
Tenant shall pay sales tax and/or gross receipts tax, and any and all increases
in such tax on the total amount paid to Landlord by Tenant including, but not
limited to, rent, real estate taxes, insurance, common area maintenance fees
and common area utilities.
8. LIEN WARRANTS. The Landlord in no manner whatsoever shall be responsible
for any contract that the Tenant makes or for any agreement that the Tenant
makes for construction, alteration, or repairing of the building or improvement
on the demised premises or for the purchase of material to be used for work and
labor to be performed in and about the construction, alteration or repair to be
made, and that such contract or agreement between the tenant and said third
party to this contract shall contain express waivers by said contractor of any
and all claim for mechanics or material liens against the demised premises or
improvements thereon, including those made and erected under the terms of this
lease.
<PAGE> 23
9. REPAIRS. (This Paragraph has been intentionally eliminated from this
Addendum).
10. ASSIGNMENT. (This Paragraph has been intentionally eliminated from this
Addendum).
11. ADDITIONAL PROVISIONS FOR SECURITY DEPOSITS. If Tenant should be overdue
in the payment of monthly rent or other sums payable to Landlord on at least
two or more occasions during a year, Landlord, at its option, may require
Tenant to increase the amount of security deposit now held by Landlord by an
amount sufficient to cover at least two months' rent or greater amount to be
determined at sole discretion of Landlord. In this event, upon receipt of the
additional security sum, Landlord and Tenant shall evidence such receipt by a
letter signed and acknowledged by both parties to be incorporated as part of
this Lease, stating the "New Total Amount" so held without liability for any
interest.
12. HAZARD INSURANCE. Tenant shall be responsible for any increase in the
hazard insurance premium rate when said increase in the premium rates is
directly attributable to the unique use of the premises by the Tenant.
13. MORTGAGE FINANCING. Tenant shall, upon the request of Landlord, execute
and deliver such instruments as may be required by Landlord to make this Lease
either superior or subordinate to any mortgages on or hereafter placed upon
Landlord's interest in the Shopping Center or the Demised Premises or future
additions thereto, provided the mortgage executes a satisfactory nondisturbance
agreement. Tenant hereby attorns to any purchaser at a foreclosure sale or
sale in lieu of foreclosure or any other sale of any type, and agrees to
execute all agreements required by any such purchaser affirming such
attornment.
Upon request of any mortgage of record, Tenant shall give such mortgage copies
of all notices given by Tenant to Landlord hereunder, and Tenant shall allow
such mortgage a reasonable length of time (in any event, not more than sixty
(60) days from the date of such notice) in which to cure any default by
Landlord hereunder. Any such notice shall be sent to such department and
address as such mortgagee shall direct Tenant in writing.
14. TAP FEES. Landlord has installed a 2" water line for the general use of
the center. If said 2" line is sufficient to meet the water requirement for
the center and Tenant then Tenant shall not be required to pay any tap fees for
access to said line. If Tenant requires a longer water line or an additional
water line the Tenant shall pay for all tap fees and other costs associated
with such installation.
15. SERVICE CORRIDORS. (This Paragraph has been intentionally eliminated from
this Addendum)
<PAGE> 24
16. RADIUS CLAUSE. Tenant, and if Tenant is a partnership, both the
partnership and all of its partners shall not be permitted to open any new
grocery stores or similar or greater square footage which compete with
Alfalfa's within a five-block radius of the subject parcel. Due to the fact
that Tenant is obligated to pay percentage rent to Landlord under this Lease,
Landlord considers this paragraph to be a material portion of this Lease.
Additionally, Alfalfa's, Inc., Alfalfa's Cherry Creek, Inc. and/or any other
affiliated company will not violate this clause and will not form other
corporations which violate the clause.
IN WITNESS WHEREOF, the parties have executed this Addendum this _____ day of
____________, 1990.
(Document shows signatures for Landlord and Tenant)
<PAGE> 25
EXHIBIT "A"
Exhibit "A" comprises four pages, the first three pages of which show the
ground level floor plan, second level floor plan and basement floor plan,
respectively, of the property in question, and the fourth page of which
contains a legal description of said property.
<PAGE> 26
EXHIBIT "B"
CONSTRUCTION OF TENANT'S STORE
Landlord shall fund $235,000.00 of the cost of such construction, and such
amount shall be placed in escrow with Land Title Guarantee Company at such time
as Tenant obtains its financing necessary under Section 4.B. and Tenant
delivers a binding commitment for said financing from established financial
institution and/or leasing companies. Additionally, said commitment may
contain no contingencies other than the escrowing of such funds. Landlord
shall contribute an additional $115,000 towards the construction of Tenant's
Premises.
Tenant may draw from the escrowed funds on a monthly basis in accordance with
the terms of the escrow agreement substantially in the form attached hereto as
"Exhibit "D", which shall be executed by Tenant, Landlord and the escrow agent
at such time as Tenant has satisfied the financing contingency of Section 4.B.
Upon execution of the Lease by Landlord and Tenant, Landlord shall deliver a
floor plan and cross-section of the premises to the Tenant, showing theron the
columns and other structural work in the premises. Within sixty (60) days
after the receipt of said floor plan, Tenant agrees to submit to Landlord three
(3) sets of fully dimensioned 1/8 inch scale or larger preliminary drawings
plus specifications prepared by the Tenants architect at Tenant's expense,
which drawings shall indicate the specific requirement of Tenant's space
showing the store front, including Tenant's sign, interior partitions, colors,
materials, trade fixture plan, lighting and electical outlets, all in
conformity with the provisions of this Exhibit "B". When the preliminary plans
and specifications have been approved in writing by Landlord but not later than
fifteen (15) days after the receipt of such plans, Tenant's architect will
prepare final plans and specifications and to a sufficient degree of
completeness to allow the Tenant's acquisition of and Tenant Improvement
Building Permit (i.e. full stamped architectural, mechanical, and electical
drawings are required). Upon completion of said final plans and
specifications, Tenant shall submit a complete copy thereof to Landlord, and
Landlord shall have fifteen (15) days thereafter within which to examine and
approve same. Failure to approve or disapprove, in writing, specifying the
reason for such disapproval within said (15) days, shall be deemed an approval
thereof. Where final plans and specifications are in conflict with this
Exhibit "B", the provisions of Exhibit "B" shall prevail.
Within thirty (30) days next following approval by Landlord of Tenant's plans
and specifications as same are required pursuant to "Construction of Tenant's
Store" of Exhibit "B" to the Lease, Tenant shall submit to Landlord its
estimate of the costs of construction of all work required to be performed by
Tenant. The Landlord shall have the right of approval of such costs as
estimated by Tenant's contractor. Approval or disapproval shall be given
within fifteen (15) days following the receipt
<PAGE> 27
of said costs estimate. Tenant shall forthwith enter into a construction
contract with Tenant's contractor for such work and Tenant shall pay such
construction costs in the manner and on the dates provided in such construction
contract. Failure of the Tenant to pay such construction costs shall
constitute a default under the terms of the Lease in like manner as failure to
pay rental would do. The Premises shall be constructed in accordance with said
approved plans and specifications and Tenant's contractor shall pursue the
construction work diligently to completion, complying with all county and state
ordinances, rules and regulations relating thereto. The contractor selected by
Tenant shall be obligated to comply with the following:
a) Prior to start of Tenant's work Tenant's contractor shall provide
Landlord with a construction schedule in bar graph form indicating the
completion date of all phases of Tenant's work.
b) Tenant's contractor shall be responsible for the repair, replacement or
clean up of any damage done by him to other contractor's work which basically
includes accessways to the Tenant's Premises which may be concurrently used by
others.
c) Tenant's contractor shall contain his storage of materials and his
operations within the Premises and such other space as may be assigned by
Landlord's contractor.
d) All trash and surplus construction materials shall be stored within the
Premises and promptly removed from the shopping center.
e) Tenant's contractor shall provide temporary utilities, protable toilet
facilities and portable drinking water as required for his work within the
Premises and shall pay to Landlord's contractor, or Landlord the cost of any
temporary utilities and facilities provided at Tenant's contractor's request.
f) Tenant's contractor shall notify Landlord of any planned work to be done
on weekends or other than normal job hours.
g) Tenant's contractor shall be responsible for compliance with applicable
codes and regulations of duly constituted authorities having jurisdiction so
far as the performance of the work and completed improvements are concerned for
all wok performed by Tenant's contractor and all applicable safety regulations
established by the general contractor for the shopping center.
DESCRIPTION OF LANDLORD'S WORK
Landlord will not be responsible for providing any work whatsoever in or about
Tenant's store. Tenant shall be building out 100% of the improvements in and
about Tenant's space and is leasing the space "as is," latent defects excepted.
DESCRIPTION OF TENANT'S WORK
Except as provided under "Description of Landlord's Work" above, all work in
the premises shall be provided by Tenant at Tenant's expense.
Tenant's work shall include, but not be limited to, decorative and/or show
window lighting, and any special furred, covered or dropped ceiling areas.
Tenant shall also furnish and install an exterior sign in accordance with
specifications provided by Landlord. Any modifications to the fire sprinkler
system required due to irregularities
<PAGE> 28
of Tenant's partitioning and/or ceiling design or in excess of ISO ordinary
hazard rating shall be provided by Tenant at Tenant's expense. If Landlord
performs any of Tenant's work, then the cost of said work shall be paid in the
following manner: Fifty (50%) percent prior to commencement of construction
and the balance immediately following completion.
<PAGE> 29
EXHIBIT "C"
STANDARD TENANT SIGN CRITERIA
Approvals
1. All exterior signs must be submitted by each tenant to the Landlord for
Landlord's approval prior to application for sign permit. Submit to Landlord
detailed drawings showing size, layout, colors, materials, style of all letters
and graphics.
2. Each tenant shall be responsible for obtaining all permits for signs and for
providing and installing all signs.
3. In addition to approval by Landlord, all signs must be in conformance with
local sign codes.
Allowable Sign Locations
1. One sign per tenant located on face of canopy as shown in Detail "S-1".
Allowable Sign Sizes
1. Maximum allowable sign sizes shall be as shown on Detail "S-1".
General Design Requirements
1. No sign perpendicular to the face of the building shall be permitted.
2. No roof-mounted signs of any kind shall be permitted.
3. No sign of any sort shall be mounted on the building face except as shown in
Details "S-1," "S-2," "S-3."
4. No flashing, moving, or audible signs shall be permitted.
5. All electical signs shall bear the Underwriter Laboratories' label and must
comply with all local building and electrical codes.
6. No exposed conduit, tubing, neon tubing, conductors, transformers, raceways,
or other electrical appurtenances shall be used.
7. Electical service to all signs shall be provided from the tenant's meter by
the tenant.
8. Design and locations of all raceways and mounting devices shall be as
approved by Landlord.
9. The tenant shall be responsible for repair of any damage to the building
caused by the installation of his signs.
<PAGE> 30
ADDENDUM TO LEASE
This Addendum to Lease (the "Lease") is between Country Club Plaza
Associates ("Landlord") and Alfalfa's Cherry Creek, Inc., a Colorado
Corporation ("Tenant"), and is made with reference to that certain lease
between Landlord and Tenant (the "Lease") covering 16,300 square feet (the
"Premises") in the Plaza at Cherry Creek, Denver, Colorado (the "Center"), as
more fully described in the Lease. The Addendum to Lease is hereby made a part
of and incorporated in the Lease. The Lease is hereby amended, modified, and
supplemented by the addition of the provisions set forth below. In the event
of any conflict or inconsistency between the provisions of this Addendum and
the provisions of the other protions of the Lease, the provisions of this
Addendum shall control. The capitalized terms used herein and not defined
herein shall have the same meanings used in the other portions of the Lease.
1. Interference with Tenant's Business. Landlord may repair, restore,
alter, improve, excavate, enter into the Premises, or close portions of the
common areas of the Center, provided that any such action does not materially
interfere with or impair Tenant's ability to conduct its business in the
Premises of impair the direct access to and visibility of the Premises. In the
event Landlort shall at any time materially impair or interfere with Tenant's
conduct of its business or impair the direct access and/or visibility of the
Premises, a proportionate amount of rental shall be abated until such
impairment or interference has been removed.
2. Reasonable Consent. Except with respect to assignment or subletting by
Tenant, whenever the consent, approval or permission of Landlord or Tenant is
required under the terms of the Lease, such party shall not unreasonably
withhold or delay such consent, approval or permission.
3. Corporate Restructuring. Tenant may, without any requirement to obtain
Landlord's consent, enter into or participate in one or more mergers,
acquisitions, consolidations or corporate reorganizations of Tenant, sales,
exchanges, issuance or other transfer of its capital stock (including, without
limitation, any "going public" stock sale), mortgage, pledge or hypothecation
of its capital stock, tender offers or "takeovers" or similar transactions;
provided that any such restructuring shall not (a) impair Tenant's ability to
pay rent as it becomes due under the Lease, (b) significantly impair the
Landlord's ability to refinance the shopping center in which the Premises are
located at terms similar to those available prior to the restructuring, of (c)
result in a significant reduction in Tenant's net worth. For purposes hereof,
a 10% reduction in the net worth of Tenant immediately prior to such
restructuring shall be deemed "significant" for purposes of this paragraph 3.
Any such restructuring shall not affect the guarantee given to Landlord by
Alfalfa's, Inc.
<PAGE> 31
4. Interruption of Services. If the furnishing to the Premises or to
Tenant of sewer services, gas, electicity or water shall be interrupted,
terminated or shall otherwise cease or be altered, and such occurrence
continues for at least two full days and materially impairs or interferes with
the conduct of Tenant's business in the Premises, all rental shall be abated
until such interruption, termination, cessation or alteration has ended unless
such interruption is part of an interruption of services affecting the whole
Denver metropolitan area.
5. Assignment and Subletting.
(a) Landlord shall not unreasonably withhold its consent to any
proposed assignment or transfer of the Lease or any interest therein or any
sublease of all or part of the Premises on the conditions that:
(i) Tenant is not then in default under the Lease.
(ii) The assignee, transferee or subtenant shall continue to
use the Premises for the purposes specified in the Lease.
(iii) The assignee, transferee or subtenant is of good
reputation and moral character.
(iv) In the case of an assignment, the assignee shall agree, by
execution of an assumption agreement in writing, within 10 days prior to the
effective date of the lease, to perform and observe all of the covenants and
agreements to be performed and observed by Tenant under the Lease.
(v) In the case of an assignment, the assignee shall have a net
worth sufficient to permit it to pay when due all rental payable under the
Lease, as demonstrated to the reasonable satisfaction of Landlord.
(b) Tenant shall not be released from its obligations hereunder by an
assignment to a third party meeting the foregoing criteria, unless during the
first four years of this lease any such assignee has a net worth not less than
the net worth of Alfalfa's, Inc. at the time of assignment, and thereafter a
net worth not less than that of Tenant, in which event Tenant shall be released
from its obligations hereunder.
(c) Tenant shall pay to Landlord any rental payments received from
sublessees in excess of rental amounts due hereunder, other than excess amounts
received from subletting of up to 1,500 square feet.
(d) Tenant hereby represents that it is not a subchapter S form of
corporation.
6. Nondisturbance. Each and every subordination and attornment pursuant to
the provisions of the Lease shall be effective only when and if the mortgagee
or beneficiary under the applicable mortgage, trust indenture or other
encumbrance or the lessor under the applicable ground or underlying lease shall
enter into a written nondisturbance and attornment agreement with Tenant,
whereby such mortgagee, beneficiary or lessor agrees, provided Tenant is not
then in default under the Lease, that Tenant's occupancy of the demised
premises and rights and priveleges under the Lease shall not be diminished,
disturbed or interfered with in connection with any proceeding to enforce or
foreclose any such mortgage, trust indenture or other encumbrance or to enforce
or terminate any such lease and if such party or purchaser at a foreclusure
sale succeeds to the interests of Landlord by reason of
<PAGE> 32
such proceedings of conveyance in lieu thereof, the Lease shall remain in full
force and effect as a direct indenture of lease between such party or purchaser
and Tenant, and Tenant shall attorn hereunder directly to such party or
purchaser shall not be (i) liable for any act or omission of any prior Landlord
or (ii) subject to any offsets or defenses which Tenant might have against any
prior Landlord or (iii) bound by any rental which Tenant might have paid for
more than one month in advance to any prior Landlord. As to any ground or
underlying lease now affecting all or any portion of the Center and as to any
mortgage, trust indenture or other encumbrance now affecting such leases or all
or any portion of the Center, Landlord shall, within 15 days after the
execution of the Lease, obtain from the mortgagee, beneficiary or lessor under
such instrument, for the benefit to Tenant, a written nondisturbance and
attornment agreement as described above.
7. Exclusive Operations. Landlord hereby grants Tenant the exclusive right
to operate in the Center a grocery store, delicatessen (defined as an area
devoted to the sale of cold prepared meats, salads and cheeses in bulk, rather
than for on-premises consumption), or caterer during the term of the Lease
(including any renewal terms). During such period, Landlord agrees that it
will not lease space in the Center to any tenant that is in the business of
selling bulk produce, dairy products, meats (cooked and uncooked), or canned
goods, sandwiches (other than fast food type restaurants, including, but not
limited to a "Subway" sandwich shop to which Landlord may lease space) or
similar merchandise as Tenant, and Landlord will not itself operate any such
business in the Center. Landlord shall be allowed to lease to an ice cream and
yogurt store.
8. Tenant's Fixtures and Equipment. Tenant shall have the right to alter,
improve or modify Tenant's fixtures and equipment and the decor of the Premises
without the consent of Landlord. Tenant shall have the right during the term
of the Lease and upon termination thereof, to remove from the Premises the
fixtures and equipment installed or placed in the Premises by or for Tenant,
provided that such removal shall not impair the structural integrity of the
Building. Tenant shall repair any damage caused by such removal.
9. No Release. No provision of the Lease shall release, or be deemed to
release, Landlord or Tenant, or require, or be deemed to require, Tenant or
Landlord to indemnify the other or any other person or entity, from or for
liability for personal injury, death, property damage or otherwise which is
caused by the negligence or intentional tortious conduct of the other, its
employees, agents, contractors, suppliers or workmen.
10. Casualty. In the event any portion of the Building shall be damaged by
fire or other perils (even though the Premises may be undamaged) so as to
materially impair or interfere with Tenant's ability to conduct its business in
the Premises or so as to impair the direct access to the Premises from and to
the main entrances and frontage of the Center, all minimum rental shall be
abated until such damage is
<PAGE> 33
repaired or such impairment of access is removed, or both, as the case may be.
If such damage and/or impairment cannot reasonably be repaired or removed
within 240 days after the occurrence thereof, Tenant shall have the right to
terminate the lease by giving written notice of termination to Landlord within
30 days after receipt of written notice from Landlord stating the time
reasonably estimated to repair or remove such damage or impairment (and
Landlord shall notify Tenant as promptly as possible). Upon such termination,
the Lease shall be deemed to have terminated as of the date of such fire or
other casualty and all rental payable by Tenant shall be prorated to the
effective date of termination and any rent paid for any period after such date
shall forthwith be refunded to Tenant. If Tenant chooses to terminate this
Lease pursuant to this Section, Tenant shall be entitled to receive
compensation from Landlord for the unamortized portion of Tenant's improvements
and equipment, less any insurance proceeds paid to Tenant and the resale value
of Tenant's equipment.
11. Condemnation. If any taking or condemnation (of conveyance in lieu or
in settlement thereof) of all or a portion of the Center or the Premises shall
render the Premises unfit for the further conduct of Tenant's business (even
though the Premises may be physically untouched), or shall impair the direct
access to the Premises, Tenant may elect to terminate the Lease or continue the
same in effect and if Tenant elects to continue the Lease in effect, all rental
and other sums payable under the Lease shall be diminished by an equitable
amount. If the parties cannot agree to such amount after good faith
negotiations, the parties shall submit the matter to arbitration, and the
decision of the arbitrators shall be final. For purposes of this Lease, a
taking of more than 30 of the parking spaces immediately adjacent to the
Premises shall substantially interfere with the conduct of Tenant's business.
In the event of any taking of the Premises or the Center that does not result
in the termination of the Lease, Landlord shall promptly restore the Premises
and the Center to a complete, architectural whole, as nearly like its condition
prior to such taking as may be possible.
12. Operating Expense Exclusions. Tenant's share of Adjustments and other
operating expenses to be paid pursuant to the Lease shall not include any of
the following costs or expenses:
(a) Any costs of capital expenditures, except that if the Lease
already provides for the inclusion of capital expenditures, only the following
capital expenditures shall be included in operating expenses: (i) capital
expenditures incurred by Landlord to comply with new laws or changes in
existing laws, in either case adopted after the commencement date of the term
of the Lease; and (ii) capital expenditures incurred by Landlord to effect a
reduction or savings in operating expenses, provided that the annual amount
included in operating expenses on account of capital expenditures described in
this clause (ii) shall not exceed the annual reduction in operating expenses
achieved as a result of such capital expenditures. In all events, costs of
capital expenditures to be included in operating
<PAGE> 34
expenses shall be amortized over the useful life of the capital item (without
regard to accelerated depreciation or cost recovery rules or other rules,
regulations or conventions used for income tax purposes) and only the annual
amortization amount shall be included in operating expenses for any particular
calendar or fiscal year or other period used to determine Tenant's payment
obligation. Notwithstanding anything to the contrary herein, costs of
resurfacing Common Area parking lots may be ammortized over a period of two
years.
(b) Rent under any ground, master or underlying lease and principal,
interest and other payments on loans and other debt costs.
(c) Costs of work, including alterations or improvements, done or
performed in other tenants' premises.
(d) Legal fees, space planner's fees, real estate broker's leasing
commissions, advertising expenses, and other costs and expenses incurred in
connection with the original development or original leasing or the Center or
future releasing of the Center.
(e) Costs for which Landlord is entitled to reimbursement from any
tenant or from Landlord's insurance company or from any tenant's insurance
company. Nothing in this paragraph shall relieve Tenant from payment of its
pro rata share of Adjustments, other than portions of such Adjustments payable
by other tenants as a result of their negligence or misconduct or for which
they are obligated under their lease terms.
(f) The expense of extraordinary services provided to other tenants in
the Center (for the purposes hereof, extraordinary service shall mean any
service in excess of those services and quantities thereof required to be
furnished by Landlord to Tenant under the Lease, which are not provided for the
common benefit of tenants in the Center).
(g) Costs associated with the operation of the business of the
partnership or entity which constitutes Landlord as opposed to costs of
operation of the Center including, without limitation, costs of selling,
syndicating, financing, mortgaging or hypothecating any of Landlord's interest
in the Center.
(h) Auditor's fees for public accounting incident to the operation,
maintenance and management of the Center and the central office accounting
costs of the Landlord or the managing agent of the Center allocable to the
Center.
13. Attorney's Fees. In any action or proceeding (including any appeal)
brought by either party against the other under or in connection with the
Lease, the successful party shall be entitled to recover from the other party
reasonable
<PAGE> 35
attorney's fees and costs and expenses incurred by the successful party in such
action or proceeding.
(Document shows signatures for Landlord, 201 University, Inc., General Partner
of Country Club Plaza Associates; and for Tenant, Alfalfa's Cherry Creek, Inc.)
<PAGE> 36
GUARANTY
Guaranty to that lease dated the 19th of January, 1990 by and bwtween COUNTRY
CLUB PLAZA ASSOCIATES herein called Landlord, and ALFALFA'S CHERRY CREEK, INC.
herein called Tenant, by Alfalfa's Inc. Guarantor.
For good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and in consideration for, and as an inducement to Landlord
to enter into a lease with Alfalfa's Cherry Creek, Inc., a Colorado
corporation, for 16,300 square feet of space in the shopping center at 201
University Boulevard, Denver, Colorado (the "Lease"), the undersigned
guarantees to Landlord throughout the term of this Guaranty, which shall begin
on the commencement date of the Lease term and expire in 4 years following the
commencement date of Lease term, but without any other condition or limitation,
the full performance and observation of all of the material terms, covenants,
conditions, provisions and agreements therein provided to be performed or
observed by Tenant, including the "Rules and Regulations" as provided in the
Lease. Landlord may seek performance of this Guaranty upon 5 days written
notice to Guarantor given after (a) Landlord shall have given notice of
nonperformance to Tenant and (b) Tenant shall have failed to cure such non
performance within the time period set forth in the Lease.
The undersigned expressly agrees that the validity of this Guaranty and the
obligations of the undersigned as guarantor under this Guaranty shall not be
terminated, affected or impaired at any time before the expiration of the term
of this Guaranty by reason of the assertion by Landlord against Tenant of any
of the rights or remedies reserved to Landlord pursuant to the provisions of
the Lease. Furthermore, Landlord may grant extensions of time and other
indulgences and may modify, amend and waive any of the terms, covenants,
conditions, provisions or agreements of the Lease, and discharge or release any
party or parties to the Lease, all without notice to the undersigned and
without any way impairing, releasing or affecting the liability or obligation
of the undersigned. The undersigned agrees that Landlord may proceed directly
against the undersigned without exhausting Landlord's remedies against Tenant;
and no discharge of Tenant in bankruptcy or in any other insolvency proceedings
shall in any way or to any extent discharge or release the undersigned from any
liability or obligation under this Guaranty. The undersigned further covenants
and agrees that this Guaranty shall remain and continue in full force and
effect as to any renewal, modification or extension of the Lease, and that no
subletting and not assignment of the Lease, with or without Landlord's consent,
shall release or discharge the undersigned.
Guarantor has provided its most recent financial statements as inducement for
Landlord to enter into the Lease; said financial statements are attached hereto
and incorporated by reference herein.
<PAGE> 37
As an additional inducement to Landlord to make the Lease and in consideration
of the Lease, Landlord and the undersigned covenant and agree that in any
action or proceeding brought by either Landlord or the undersigned against the
other on any matter whatsoever arising out of, under, or by virtue of any of
the terms, covenants, conditions, provisions or agreements of the Lease or of
this Guaranty, Landlord and the undersigned shall and do hereby waive trial by
jury. In a suit brought by either party hereunder, the prevailing party may
recover, in addition to any damages which a court of competent jurisdiction may
award, such amount or amounts as the court may determine to be reasonable
attorney's fees and costs incurred by such party or its successors or assigns
as a result of such suit.
All rights under this Guaranty shall inure to the benefit of any successors or
assigns of Landlord.
Dated as of the 31st day of January, 1990.
(Document shows signature of S.M. Hassan, President, Guarantor Alfalfa's, Inc.,
corporate address shown to be 205 Canyon, Suite 200, Boulder, CO 80302
<PAGE> 38
FIRST AMENDMENT TO
SHOPPING CENTER LEASE FOR
THE PLAZA AT CHERRY CREEK
This First Amendment, entered into as of the 20th day of February, 1990, is
between Alfalfa's Cherry Creek, Inc. ("Tenant") and Country Club Plaza
Associates ("Landlord").
Recitals
A. Tenant and Landlord entered into a Shopping Center Lease dated as of
January 19, 1990 for the premises located in the Plaza at Cherry Creek shopping
center (the "Lease").
B. Tenant and Landlord wish to amend certain terms of such Lease.
Agreement
For good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Defined Terms. All defined terms used herein shall have the same
meaning defined for such terms in the Lease.
2. Notice of Financing.
(a) Paragraph 4.A.(II) and (III) is hereby amended to delete the date
"February 21, 1990" and substitute therefore the date "April 10, 1990" in the
first sentence thereof as the date by which Tenant must give Landlord notice
confirming Tenant's obtaining financing for the buildout of the Premises.
(b) Paratraph 4.A.(II) is hereby amended by deleting the third
sentence thereof and substituting therefore the following:
"(For example, if Tenant gives notice on March 2, that financing
has been obtained, Tenant's notice shall be deemed effective March
21, 1990, and the six month's free rent shall commence on March 22
and full rent shall be next due on September 21, 1990."
3. Commencement of Full Rent Payments. The first sentence of Paragraph
4.A.(III) shall be deleted and the following sentence shall be added at the
beginning of Paragraph 4.A.(III):
"Upon termination of the six-month free rent period as provided in
Paragraph 4.A.(II), or on September 21, 1990, whichever comes
first, Tenant shall pay to Landlord as Minimum Rent in advance the
following rental rates without notice or demand provided that
Tenant has given notice required pursuant to Paragraph 4.A.(II)
above."
<PAGE> 39
4. Escrowing of Funds.
(a) Pursuant to Exhibit B attached, "Landlord shall fund $235,000 of
the cost of such construction, and such amount shall be placed in escrow with
Land Title Guarantee Company at such time as tenant obtains its financing
necessary under Paragraph 4.B. and Tenant delivers to Landlord a binding
commitment for said financing from an established financial institution and/or
leasing company. Additionally, said commitment may contain no contingencies
other than the escrowing of such funds. Landlord and Tenant hereby amend the
Lease to provide that the deposit of the $235,000 and the execution of the
escrow agreement referred to in Exhibit B shall be completed within seven (7)
calendar days of Landlord's receipt of both of the following:
(i) A notice from Tenant stating that Tenant has obtained
financing, and consequently satisfied their financing contingency.
(ii) A binding commitment for said financing from an
established financial institution or leasing company, which commitment may
contain no contingencies other than the escrowing of such funds.
5. Landlord's total contribution to Tenant's improvements shall be
$350,000. $235,000 of which will be placed in an escrow account, most likely
with Land Title.
For purposes of this section 5., Tenant's improvements shall include equipment
purchases, payments of fees to architects, designers, and other individuals
working on this project and construction costs and fees. Notwithstanding the
above, Tenant's improvements shall not include any costs associated with any
direct employee, officer, or director of Alfalfa's (except for a maximum of
$35,000 to Gus Lester and $50,000 to Jon Payne who have been hired specifically
for this job as the construction and project managers respectively); any
general and administrative expenses of Alfalfa's or its proportionate share of
which they are allocating towards this project; any accounting fees, legal
fees, or any other consultants which are not directly associated with the
construction industry.
The additional $115,000 shall be made available to Tenant commencing seven (7)
calendar days after notification by Tenant under section 4(a)(i) and (II),
above. Notwithstanding anything stated to the contrary in this Amendment or in
the original Lease or in any exhibits to that Lease, Tenant may not draw upon
the $115,000 until such time as there are no dollars remaining of the $235,000
placed in the excrow account. Additionally, under no circumstances whatsoever
may less than $163,000 of the $350,000 be used for items other than Hard Tenant
Finish construction costs. "Hard Tenant Finish" construction costs are hereby
defined as the actual bricks, mortar, drywall, lighting, etc. that shall remain
part of the Premises thus becoming Landlord's property after this Lease has
expired. Additionally, the contractors fee, so long as it is reasonable, shall
be considered a "Hard Tenant Finish Construction Cost."
<PAGE> 40
For Tenant to obtain any dollars whatsoever from Landlord, Tenant must submit
to Landlord a construction draw in the standard AIA format, and Tenant must
accompany each draw with a copy of all invoices. Landlord shall review each
draw within 10 business days after submission by Tenant. Within the 10 days
review Landlord shall either approve or disapprove of the draw. After Landlord
approves said draw, said draw shall be submitted at Landlord's discretion to
Land Title or Citicorp Real Estate, Inc. for funding. Landlord's approval
shall not be unreasonably withheld. If Landlord fails to notify Tenant within
the 10 business days approval period of Landlord's disapproval, Landlord shall
be deemed to have accepted the draw.
With the submission of each draw, Tenant shall be required to show Landlord a
full accounting of all dollars spent on this project which Tenant has drawn
from Landlord and/or which Tenant has spent from other sources including but
not limited to all draws from United Bank of Boulder. Additionally, Tenant
must submit to Landlord lien waivers from all contractors and/or subcontractors
which performed work on the project in an amount equal to the previous month's
draw, plus lien waivers for all dollars paid by Tenant during the previous
month for any other work associated with the project.
It shall be deemed reasonable for Landlord to disapprove any draw of Tenant if
any of the following occur:
(a) All lien waivers evidencing payment to the contractors from the
previous month's draw are not in place. Additionally, all lien waivers for
other work paid on or before the previous month must also be in place.
(b) The total dollars paid to third parties on this project excluding
any rental payments and/or CAM payments is not greater than double the amount
of the total draws which Tenant has requested from Landlord including this
draw, provided however, that if the total project cost paid to third parties on
this project excluding any rental payments and/or CAM payments is less than
$700,000, Landlord shall be required to disburse to Tenant the remaining
protion of Landlord's $350,000 contribution to Tenant's improvements, upon
Tenant's opening for business to the public.
(c) If draw is not accompanied with a copy of all invoices.
<PAGE> 41
6. Full Force and Effect. Except as amended herein the terms of the
Lease shall remain in full force and effect.
Executed this 10th day of April, 1990, to be effective February 21, 1990.
(Document shows signatures of S.M. Hassan, President, Alfalfa's Cherry Creek,
Inc. (Tenant); and Panayes J. Dikeou, President, 201 University, Inc., General
Partner of Country Club Plaza Associates (Landlord)).
<PAGE> 42
(Additional copy of above "Guaranty," signed by S.M. Hassan, President,
Alfalfa's, appears here)
<PAGE> 43
SECOND AMEMDMENT TO SHOPPING CENTER LEASE
This Second Amemdment is made this _____ day of March, 1991 by and between
David L. Johnson, Receiver ("Landlord") and Alfalfa's Cherry Creek, Inc.
("Tenant"), (collectively, the "Parties").
WHEREAS, Country Club Plaza Associates, a Colorado general partnership, and
Tenant entered into a Shopping Center Lease Agreement on January 19, 1990 and a
First Amendment to Shopping Center Lease on Febuary 20, 1990, ("Original
Lease") covering approximately 16,300 square feet of floor area; 11,300 square
feet on the ground level, 2,000 square feet in the basement, and 3,000 square
feet on the second level (the "Premises") located at 201 University Bouldvard,
Denver, Colorado (the "Property").
WHEREAS, on October 24, 1990, David L. Johnson, Receiver was appointed Receiver
for the Property pursuant to the District Court, City and County of Denver,
State of Colorado, Order For Receiver Civil Action No. 90-CV-11225. Therefore,
David L. Johnson, Receiver is substituted as Landlord in the Original Lease.
WHEREAS, Landlord and Tenant desire to amend the Original Lease to add to the
leased Premises approximately 572 square feet of rentable area on the second
floor of the Property ("Additional Space") as shown on Exhibit "A" attached
hereto, upon the terms and conditions herein described.
NOW THEREFORE, in consideration of their mutual covenants herein contained and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto hereby agree as follows:
1. Additional Space. The Premises is hereby amended to include the
Additional Space of 572 rentable square feet on the second floor of the
Property, and all tems and conditions of the Original Lease as modified hereby
shall apply to the Additional Space. The total square footage of the Premises,
including the Additional Space, is now 16,872.
2. Base Rent. The Base Rent (monthly) for the Additional Space shall be
as follows:
(a) For the period commencing on April 1, 1991 or the date when a
certificate of occupancy is issued by the Denver building department, whichever
comes later, and ending on August 28, 2000, unless otherwise extended or
terminated per the terms and conditions set forth in the Original Lease, shall
be Four Hundred Seventy-Six and 67/100 Dollars ($476.67).
<PAGE> 44
3. Operating Expenses. Section 7.B.I.(a) of the Original Lease, is
revised, whereas, Tenant's pro rata share of Adjustments shall be 33.39% upon
April 1, 1991 or upon issuance of a certificate of occupancy, whichever occurs
later.
Landlord hereby certifies to Tenant that the Property currently contains 50,537
rentable square feet. Landlord agrees that in the event that the square
footage of the Property increases, Tenant's percentage share of Adjustments
shall correspondingly decrease.
4. Tenant Improvements. Landlord shall make improvements in and provide
tenant finish ("Landlord's Work") to the Additional Space in accordance with
the drawings attached hereto as Exhibit B and the specifications attached
hereto as Exhibit C. Landlord estimates that Landlord's Work will cost
$14,897.44. Landlord hereby agrees to pay up to $9,724.00. Tenant shall pay
costs of Landlord's Work in excess of $9.724.00 up to $5,173.44. Should
changes be required to Landlord's Work, with the exception of changes solely
requested by Tenant, such changes shall only be made upon mutual consent
between Landlord and Tenant. Tenant shall bear the cost of all changes
requested solely by Tenant; the bearer of costs of all other changes shall be
as mutually agreed upon between Landlord and Tenant.
Landlord shall provide Tenant with a final accounting of total costs of
Landlord's Work, including all relevant documentation thereof, and Tenant shall
pay, within 30 days after receipt of such accounting, any amounts owed by
Tenant. Landlord shall at its sole expense be responsible for obtaining
mechanics' and materialmens' lien waivers and all necessary permits and
licenses required to perform Landlord's Work.
5. Lease. All terms and definitions in the Original Lease shall have the
same meaning herein. If there is any conflict between the terms of this Second
Amendment and the terms of the Original Lease, the terms of this Second
Amendment shall control. As herein modified, the Original Lease shall remain
in full force and effect according to its terms.
6. Court Approval. It is acknowledged by the Parties that Landlord is
authorized to enter into leases and lease amendments pertaining to the Property
due to the powers vested in him by the Order for Receiver, Paragraph 13(i). It
is also acknowledged by the Parties that this Second Amemdment shall not be
effective until approved by the Court, pursuant to the Order for Receiver,
Paragraph 13(i)(ii).
IN WITNESS WHEREOF, the Parties have executed this Second Amendment as the date
first above written.
(Document shows signature of David L. Johnson, Receiver, for The Plaza at
Cherry Creek (Landlord); and shows signature for Alfalfa's Cherry Creek, Inc.
(Tenant))
<PAGE> 45
EXHIBIT A
The document described as Exhibit A is a drawing showing the floor plan of the
Additional Space.
<PAGE> 46
EXHIBIT B
The document described as Exhibit B is a drawing showing improvements to be
made to the Additional Space.
<PAGE> 47
EXHIBIT C
LANDLORD'S WORK
1. Landlord shall provide the following tenant finish and improvements:
(a) Installation of electrical outlets and utility stubs as shown on
Exhibit B;
(b) Installation of telephone connections as shown on Exhibit B;
(c) Installation of drywall as shown on Exhibit B;
(d) Installation of doors, carpeting, paint, windows, woodwork and
other tenant finish items of the same color, materials and quality contained in
the space currently occupied by Tenant on the second floor of the Premises.
2. Landlord shall be solely responsible for procuring and supervising
contractors and subcontractors to perform Landlord's Work. All contractors and
subcontractors shall be selected on a lowest-bid basis. Landlord shall be
compensated for any tenant finish work performed by Landlord at rates not
exceeding average hourly rates charged by area contractors to perform similar
work. Tenant shall not be responsible for any costs incurred by Landlord to
correct defective work performed by Landlord's contractors and subcontractors.
3. Landlord shall notify Tenant at such time as Landlord's Work has been
substantially completed, and Tenant and Landlord shall perform a walk-through
inspection of the Additional Space. Landlord and Tenant shall prepare a punch
list of all items to be completed at such time, or of any items not completed
to Tenant's satisfaction, and Landlord shall promptly pursue completion of such
items to Tenant's satisfaction. Tenant's occupancy of the Additional Space
shall constitute acceptance thereof, latent defects excepted.
Per Tenant, tenant took occupancy of additional space 4/18/91.
<PAGE> 48
INDEPENDENT AUDITOR'S REPORT
Board of Directors
Alfalfa's, Inc.
Denver, Colorado
We have audited the accompanying consolidated balance sheets of Alfalfa's, Inc.
(formerly Natural Horizons, Inc.) and subsidiaries, as of June 25, 1989 and
June 26, 1988, and the related consolidated statements of earnings,
shareholders' equity and cash flows for the years then ended. These financial
statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the financial position of Alfalfa's, Inc. and
subsidiaries as of June 25, 1989 and June 26, 1988, and the results of their
operations and their cash flows for the years then ended in conformity with
generally accepted accounting principles.
(Document shows company signature of Touche Ross & Co., Certified Public
Accountants, dated September 1, 1989)
<PAGE> 49
The six pages following the above are financial statements, as described below,
accompanying the above "Independent Auditor's Report."
1) Alfalfa's, Inc. Consolidated Balance Sheets, Assets
2) Liabilities and Stockholder's Equity
3) Alfalfa's, Inc., Consolidated Statements of Earnings (2 pages)
4) Alfalfa's, Inc., Consolidated Statements of Changes in Stockholders' Equity
5) Alfalfa's, Inc., Consolidated Statements of Cash Flows
All of the above have figures compiled for years ended June 25, 1989 and June
26, 1988.
<PAGE> 50
ESCROW AGREEMENT
The subsequent document is an escrow agreement between 201 University, Inc.,
general partner of Country Club Plaza Associates, Alfalfa's Cherry Creek, Inc.,
and Land Title Guarantee Company, showing deposits in the amount of $235,000.00
and showing the signatures for all parties, and referencing Exhibit A, entered
in full below
<PAGE> 51
EXHIBIT "A"
ESCROW AGREEMENT
This Agreement, dated this 6th day of April, 1990, is among the Country Club
Plaza Associates, a Colorado corporation ("CC"), Alfalfa's Cherry Creek, Inc.
("Alfalfa's"), and Lant Title Guarantee Company ("LT").
Recitals
A. CC and Alfalfa's have entered into a lease (the "Lease") by which CC will
lease to Alfalfa's, and Alfalfa's will lease from CC 16,300 square feet of
space (the "Space") in the building at 201 University Boulevard, Denver (the
"Building").
B. CC and Alfalfa's have agreed that CC will pace $235,000 in escrow with LT
for disbursement to Alfalfa's to complete construction of certain improvements
in the Building.
Agreement
For good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Appointment of Escrow Agent. CC and Alfalfa's hereby appoint LT to act as
escrow agent on behalf of CC and Alfalfa's in accordance with the terms of this
agreement, and LT agrees to serve in this capacity.
2. Deposit with LT. CC shall deposit with LT, and LT shall acknowledge the
receipt of $235,000 in cash or immediately available funds within seven (7)
days after CC has received both of the following:
(a) A notice to CC stating that Alfalfa's has satisfied their financing
contingency under Paragraph 4 of the Lease.
(b) A binding commitment for said financing from an established financial
institution and/or leasing company, which sommitment may contain no
contingencies other than the escrowing of funds.
Alfalfa's and CC shall each pay 1/2 of all fees and charges levied by LT as
escrow agent. Such fees and charges shall not be paid from the escrow funds.
3. Disbursement of Funds. LT shall disburse the funds as follows:
<PAGE> 52
(a) To Alfalta's, or to such other party as Alfalfa's may direct, fromtime
to time upon receipt of an affidavid of an officer of Alfalfa's which is
confirmed and approved by an oficer of CC that a proportionate amount of work
on the tenant finish in the Space has been completed in substantial accordance
with Alfalfa's plans and specifications, in an amount specified in such
affidavit; certain terms under which CC may reasonably disapprov a draw request
are set forth in the First Amendment to Shopping Center Lease for the Plaza at
Cherry Creek; if such affidavit is received by Escrow Agent from Alfalfa's and
Escrow Agent does not receive, within 10 business days thereafter, confirmation
from CC of its approval or disapproval of the draw, Escrow Agent may deem the
draw approved, provided Alfalfa's gives to LT a domestic return receipt showing
that CC received a copy of said draw a minimum to 10 business days prior to
funding to Alfalfa's; and disburse the funds to Alfalfa's in accordance with
the affidavit; and
(b) To CC upon receipt of a notice from and officer of CC that Alfalfa's
has breached the terms of the Lease, has been given notice and an opportunity
to cure in accordance with the Lease terms, has failed to cure the breach, and
that CC has elected to terminate the Lease.
(c) To CC upon receipt of a notice from an officer to CC that Alfalfa's
has received a total of $350,000, in which case LT shall disburse to CC the
remaining amount that is in escrow.
4. Liability of Escrow Agent. In performing its duties hereunder, LT will
have no obligation to determine the merits of any dispute between CC and
Alfalfa's, and LT will have no liability to any party in connection herewith
except for the failure by LT to fulfill any of its duties under this Agreement,
negligent acts or omissions by LT or willful misconduct by LT. In the event of
any conflicting demands upon LT with respect to this escrow or any of the
rights of any of the parties hereunder, LT shall have the right to file an
action in interpleader and deposit in court the amount of any funds in dispute.
5. Term. This Agreement shall be terminated on the earlier to occur of
disbursement of all funds held by LT upon Alfalfa's request in accordance with
Section 3(a) above, or upon disbursement of funds to CC in accordance with
Section 3(b) above.
6. Miscellaneous.
(a) Any notices required hereunder shall be given in writing to the
parties at the following address:
Alfalfa's: 205 Canyon Boulevard, Suite 200
Boulder, Colorado 80302
<PAGE> 53
with a copy to:
Freya R. Brier
Hol me Roberts & Owen
1401 Pearl Street, Suite 400
Boulder, Colorado 80302
CC:
Panayes J. Dikeou
Country Club Plaza Associates
1615 California Street, Suite 707
Denver, Colorado 80202
LT: Land Title Guarantee Company
3033 E 1st Avenue, Suite 600
Denver, Colorado 80206
(b) This Agreement shall be governed by the laws of the State of Colorado.
(c) This Agreement shall be binding on an inure to the benefit of the
parties hereto, their successors and assigns.
(Document shows signatures for Alfalfa's Cherry Creek, Inc.; 201 Unitersity
Inc., general Partner of Country Club Plaza Associates; and Land Title
Guarantee Company)
Exhibit A is followed by Special Deposit Instructions, comprising one page and
detailing initial deposit instructions in reference to "Escrow Agreement,"
above, and showing signatures for Alfalfa's Cherry Creek, Inc.; 201 Unitersity
Inc., general Partner of Country Club Plaza Associates; and Land Title
Guarantee Company
<PAGE> 54
APPROVAL OF NONDISTURBANCE AGREEMENT
Alfalfa's Cherry Creek, Inc. hereby notifies Land Title Guarantee Company and
Country Club Plaza Associates that it has obtained from Citicorp Real Estate,
Inc. a Nondisturbance Agreement in form and contents satisfactory to Alfalfa's
Cherry Creek, Inc.
(Document shows signature for Alfalfa's Cherry Creek, Inc. of S.M. Hassan,
President)
<PAGE> 55
Subsequent to the above is a Landlord - Mortgagee Waiver, comprising two pages
and showing a signature for Country Club Plaza Associates, 201 University Inc.,
general partner