EXHIBIT 10.18
FOR
XXX XXXXX XXXXXX
0000 XXXXXXXX
XXXXXX, XXXXXXXX
BETWEEN
XXXXXXXX OIL BUILDING PARTNERSHIP - LANDLORD
AND
RYDER TRS, INC. - TENANT
TABLE OF CONTENTS
-----------------
ARTICLE I DEMISE AND USE....................................... 1
ARTICLE II DEFINITIONS.......................................... 2
ARTICLE III TERM................................................. 3
ARTICLE IV PRIOR OCCUPANCY...................................... 3
ARTICLE V ANNUAL BASE RENT..................................... 4
ARTICLE VI ADJUSTMENT OF RENT................................... 5
ARTICLE VII ASSIGNMENT, MORTGAGING AND SUBLETTING................ 16
ARTICLE VIII LANDLORD'S WORK; TENANT'S WORK; ALTERATIONS.......... 18
ARTICLE IX ORDINARY REPAIRS..................................... 22
ARTICLE X FLOOR LOAD; OFFICE EQUIPMENT; MOVING HEAVY
EQUIPMENT............................................ 24
ARTICLE XI LAWS, ORDINANCES, AND REQUIREMENTS OF PUBLIC
AUTHORITIES.......................................... 25
ARTICLE XII COMPLIANCE WITH INSURANCE REQUIREMENTS
AND CERTIFICATE OF OCCUPANCY......................... 29
ARTICLE XIII OBSERVANCE OF RULES AND REGULATIONS AND
COVENANT OF QUIET ENJOYMENT.......................... 30
ARTICLE XIV LIABILITY INSURANCE; EXCULPATION OF LANDLORD
AND TENANT........................................... 31
ARTICLE XV DAMAGE BY FIRE OR OTHER CASUALTY..................... 37
ARTICLE XVI BANKRUPTCY; REMEDIES................................. 39
ARTICLE XVII CONDEMNATION......................................... 40
ARTICLE XVIII ELECTRICITY.......................................... 42
ARTICLE XIX ENTRY................................................ 43
ARTICLE XX RIGHT TO CHANGE PUBLIC PORTIONS OF
THE BUILDING......................................... 45
ARTICLE XXI LANDLORD'S AND TENANT'S RIGHT TO PERFORM............. 45
ARTICLE XXII SERVICES, FACILITIES AND EQUIPMENT................... 45
ARTICLE XXIII SIGNS AND GLASS...................................... 48
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TABLE OF CONTENTS
-----------------
(CONTINUED)
ARTICLE XXIV PRIME LEASE AND SUBORDINATION...................... 49
ARTICLE XXV LANDLORD'S TITLE................................... 50
ARTICLE XXVI RIGHTS OF HOLDER OF LEASEHOLD MORTGAGE IN
THE EVENT OF DEFAULT BY LANDLORD................... 51
ARTICLE XXVII SURRENDER OF PREMISES.............................. 51
ARTICLE XXVIII EFFECT OF CONVEYANCE OR ASSIGNMENT BY
LANDLORD........................................... 52
ARTICLE XXIX WAIVERS............................................ 52
ARTICLE XXX DEFAULTS........................................... 52
ARTICLE XXXI NOTICES............................................ 54
ARTICLE XXXII ESTOPPEL CERTIFICATE............................... 55
ARTICLE XXXIII PLURALS AND PRONOUNS, SUCCESSORS AND
ASSIGNS............................................ 56
ARTICLE XXXIV ENTIRE AGREEMENT, CAPTIONS, SEVERABILITY........... 57
ARTICLE XXXV MEMORANDUM OF LEASE................................ 57
ARTICLE XXXVI CONTINUANCE OF OCCUPANCY........................... 57
ARTICLE XXXVII BROKERAGE.......................................... 57
ARTICLE XXXVIII HOLDOVER TENANCY................................... 58
ARTICLE XXXIX RELOCATION......................................... 58
ARTICLE XL MISCELLANEOUS...................................... 58
ARTICLE XLI EXCULPATION........................................ 59
ARTICLE XLII PARKING............................................ 59
RIDER TO LEASE
EXHIBIT A DEMISED PREMISES
EXHIBIT B DESCRIPTION OF THE LAND
EXHIBIT C SCHEDULE FOR DEVELOPMENT OF TENANT PLANS -
[INTENTIONALLY DELETED]
EXHIBIT D ONE CIVIC CENTER PLAZA RULES AND REGULATIONS
EXHIBIT E MORTGAGES
SECTION IV ONE CIVIC CENTER PLAZA CLEANING SPECIFICATION
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L E A S E
---------
THIS LEASE, made this 12th day of March, 1997, between XXXXXXXX OIL
BUILDING PARTNERSHIP, a California general partnership, with its principal place
of business in Denver, Colorado (hereinafter referred to as "Landlord"), and
RYDER TRS, INC., a Delaware corporation (hereinafter referred to as "Tenant").
W I T N E S S E T H :
ARTICLE I
---------
DEMISE AND USE
1.1 Upon the terms and conditions hereinafter set forth, Landlord
does hereby demise and lease to Tenant, and Tenant does hereby hire and take
from Landlord, the premises described in EXHIBIT A, attached hereto and made a
part hereof, in the Building (hereinafter defined) erected on Land (hereinafter
referred to as the "Land") located in the City of Denver, County of Denver,
State of Colorado, the Land being more particularly described in EXHIBIT B,
attached hereto and made a part hereof. No easement for light or air is included
in the Demised Premises; provided, however, that if Landlord, its successors or
assigns: (i) builds a new building on the south parcel (as the same is defined
in the Prime Lease); (ii) otherwise directly causes or permits (other than its
decision not to exercise its option on the south parcel) a structure to be built
upon it; or (iii) otherwise directly causes or permits a structure to be built
upon the seventeenth (17th) floor roof of the Building (other than antennae or
dishes which do not materially obstruct Tenant's view from the Demised
Premises), which obstructs Tenant's view from the Demised Premises, Tenant shall
have the option upon giving Landlord one hundred eighty (180) days prior written
notice after Landlord, its successors or assigns, obtains a building permit for
the structure to either terminate this Lease or relocate to the new building.
Landlord shall notify Tenant in writing of its intent to build such a structure
within ten (10) days after obtaining such a permit.
1.2 Except as otherwise expressly provided in this Lease, all the
outside walls of the Demised Premises (as hereinafter defined) are expressly
reserved to Landlord, and access to any space in the Demised Premises used for
shafts, stacks, pipes, conduits, ducts, electric or other utilities, sinks or
other Building facilities, and the use thereof, as well as access thereto
through the Demised Premises for the purpose of operation, maintenance,
decoration and repair, shall be made available to Landlord in a manner
consistent with Article XIX, below.
1.3 Tenant may use the Demised Premises for general office uses and
for no other purpose; provided, however, that Tenant may, subject to appropriate
governmental approvals, install within the Demised Premises any of the following
amenities for its employees:
a. an exercise facility so long as it does not unreasonably
disturb other tenants;
b. food preparation and eating facility; provided that the
Tenant shall not install a full service kitchen which
requires venting of odors and smoke, and grease traps; and
c. day care services, subject to Landlord's consent which shall
not be unreasonably withheld.
1.4 Nothing in this Lease shall be deemed to constitute Tenant as a
partner or an associate in business with Landlord, or to make Tenant responsible
in any way for the business of Landlord. Neither Landlord nor Tenant shall have
control over or responsibility for employees of the other.
1.5 Tenant shall have the nonexclusive right, subject to the terms
and conditions of this Lease, with other tenants of the Building to use the
Common Areas of the Building.
ARTICLE II
----------
DEFINITIONS
2.1 The following terms shall, for all purposes of this Lease, and
all agreements supplemental hereto, have the meanings herein specified unless
the context otherwise requires. This Article shall not be construed to limit the
general applicability of terms elsewhere defined in this Lease.
2.2 "Building" shall mean the tower office building consisting of not
less than twenty-two (22) stories, including ground floor and all other
improvements erected by Landlord, at Landlord's expense, and located at the
corner of 16th Avenue and Broadway (1560 Broadway), Denver, Colorado.
2.3 "Building Services" shall mean the provision of electricity,
heating, ventilating, air conditioning, elevator service, and water to the
Demised Premises in accordance with the terms of this Lease.
2.4 "Commencement Date" shall mean May 15, 1997. In no event shall
the Commencement Date be later than May 15, 1997.
2.5 "Common Areas" shall mean all areas and facilities which are
outside the Demised Premises and are designated for the common use, convenience
or benefit of Tenant and other occupants of the Building, including, but not
limited to, corridors, restrooms, lobbies, walkways, landscaped areas, telephone
closets, electrical rooms and janitorial closets.
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2.6 "Demised Premises" and "Premises" shall mean the space consisting
of approximately 66,306 rentable square feet described in EXHIBIT A and referred
to in Section 1.1 of this Lease.
2.7 "Holidays" shall mean those days celebrated each calendar year as
New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and
Christmas Day, or other national legal holidays recognized by national banks in
Denver, Colorado.
2.8 The word "Lease" shall mean this instrument.
2.9 "Normal Business Hours" shall mean from 7:00 a.m. to 6:00 p.m.
weekdays and 8:00 a.m. to 1:00 p.m. Saturdays (Sundays and Holidays excepted).
2.10 The word "Term" shall have the meaning hereinafter defined.
ARTICLE III
-----------
TERM
3.1 The Term of this Lease shall be ten (10) years and four (4)
months to commence on the Commencement Date and to end, unless sooner terminated
or renewed, at midnight on the last day of the on hundred twenty-fourth (124th)
full calendar month thereafter. Promptly after the Commencement Date, Landlord
and Tenant will execute an agreement in recordable form (hereinafter referred to
as the Commencement Date Agreement) stating, among other things, the certified
square foot area of the Demised Premises, the commencement and expiration dates
of this Lease and the Annual Base Rent.
ARTICLE IV
----------
PRIOR OCCUPANCY
4.1 Tenant may, upon complete execution of this Lease and prior to
the Commencement Date, move into and occupy any portion of the Demised Premises
(hereinafter known as "Prior Occupancy") for purposes of completing the tenant
improvements to the Demised Premises and occupying the Demised Premises after
completion, without payment of Rent or commencement of the Term. Such Prior
Occupancy shall not be deemed a taking of possession by Tenant and shall not
operate to commence the Term of this Lease for all or any part of the Demised
Premises, nor shall it operate to diminish or affect any right of Tenant to
require completion and availability of the entire Demised Premises or diminish
or affect any right of Tenant to cancel this Lease (including the Prior
Occupancy) because of incompletion or unavailability of the entire Demised
Premises. If such cancellation shall occur, Tenant shall remove from and
surrender that part of the Demised Premises occupied under the
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Prior Occupancy within sixty (60) days after notice of such cancellation shall
have been given.
Except as otherwise provided in this Article or as required by
the nature of the Prior Occupancy, such Prior Occupancy shall be deemed to be
under all of the terms, covenants, conditions, and provisions of this Lease.
ARTICLE V
---------
ANNUAL BASE RENT
5.1 Tenant agrees to pay to Landlord for the use of the Demised
Premises in lawful money of the United States, a base annual rent (hereinafter
"Annual Base Rent") in the sum of ***SEE RIDER TO LEASE***. At Landlord's option
a service charge of five percent (5%) of the rental payment due shall be paid as
additional rent in the event any rental payment is unpaid after the first day of
any calendar month; provided, however, that Tenant shall be entitled to two (2)
grace periods of five (5) days each after receipt of written notice from
Landlord during any twelve (12) consecutive calendar month period during the
Term of the Lease during which period Tenant shall not be charged a service
charge; provided further, however, if the grace periods have been utilized or
the payment is made after the fifth (5th) day, the service charge may be
imposed. The total annual amount of the base rent shall be computed in the
manner set forth in this section and set forth in the Commencement Date
Agreement. All payments shall be made at the office of the Landlord in Denver,
Colorado, or at such other place as may from time to time be designated by the
Landlord, in accordance with the provisions of Article XXI, and shall be made
without demand and without any set off or counterclaim whatsoever, except as
expressly provided otherwise in the Lease.
5.2 If the Commencement Date is not on the first day of the month, or
if the Lease termination date is not the last day of the month, a pro-rated
monthly installment shall be paid at the then current rate for the fractional
month during which the Commencement Date and/or the termination date occurs.
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ARTICLE VI
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ADJUSTMENT OF RENT
6.1 If, in any calendar year or partial calendar year during the Term
hereof the Operating Expenses, as hereinafter defined, of the Building should
exceed the actual amount of Operating Expenses experienced by the Landlord in
calendar year 1997 (or with respect to the renewal term, the calendar year in
which the renewal term commences) per rentable square foot of area therein (such
excess being hereinafter referred to as the "Operating Expense Differential"),
then as additional rent for that year, or partial calendar year, Tenant shall
pay for each rentable square foot of floor space leased hereunder an amount
equal to the Operating Expense Differential, all in accordance with the terms
herein. Except for increases in real estate taxes, insurance and utilities,
Landlord agrees that increases in other Operating Expenses for which Tenant
shall be obligated during the Term of this Lease will not increase more than
four percent (4%) in any year during the Term of this Lease over the immediately
preceding year; provided, however, that such percentage shall be increased by
the unused portion of the four percent (4%) cap for the preceding three (3)
years of the Term of the Lease. It is further agreed and understood that this
shall constitute a cap on the Tenant's share of Operating Expense during the
Term of this Lease, other than real estate taxes, insurance and utilities which
shall not be subject to the cap.
6.2 At or prior to the commencement of any calendar year during the
Term hereof after 1997, Landlord may deliver to Tenant a written estimate of any
additional rent (such expense being hereinafter referred to as "Estimated
Operating Expense Differential") which may be due hereunder during any such
succeeding year, whereupon the monthly rental for such full or partial calendar
year shall be increased by 1/12 of the amount of the Estimated Operating Expense
Differential for that particular year; provided, that the foregoing shall be
subject to the Tenant's right to review, question or audit. The Estimated
Operating Expense Differential shall be set forth in reasonable detail, and
shall contain (i) a line-item breakdown of component costs, and (ii) the method
of calculation of any gross-up performed by Landlord in estimating Operating
Expenses.
6.3 Statements showing the actual Operating Expenses of the Building
and Tenant's proportionate share thereof (hereinafter referred to as "Statement
of Actual
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Adjustment") shall be delivered by Landlord to Tenant within a reasonable period
of time after the end of any calendar year (not to exceed 180 days) in which
Estimated Operating Expense Differential was paid by Tenant or due Landlord
under the provisions hereof. Subject to Tenant's right to question and audit and
obtain a refund if appropriate, within forty-five (45) days after the delivery
by Landlord to Tenant of such Statement of Actual Adjustment, Tenant shall pay
to Landlord the amount by which the actual adjustment exceeds the amount paid by
Tenant as Estimated Operating Expense Differential during said previous calendar
year, or Landlord shall credit Tenant the amount by which the Estimated
Operating Expense Differential exceeded the Statement of Actual Adjustment. The
Statement of Actual Adjustment shall be set forth in reasonable detail, and
shall contain (i) a line-item breakdown of component costs; (ii) the method of
calculation of any gross-up; (iii) the method of prorating the wages, salaries
and payroll burden of employees engaged primarily, but not solely, in the
management, operation or maintenance of the Building; and (iv) an explanation in
reasonable detail of any proportionate cost attributable to the Building which
represents either a proration of costs shared by one or more buildings or a
proration of costs between the office portion of the Building and the retail
portion of the Building.
The total rentable area of the Building as of the date of this Lease
is stipulated to be 589,157 square feet, and the rentable area of the Demised
Premises is stipulated to be 66,306 square feet, which results in Tenant's pro
rata share being 11.254%.
6.4 The computations set forth in this Article shall be made on a
calendar year basis except if this Lease commences on a day other than the first
day of a calendar year or terminates on a day other than the last day of a
calendar year, in such event the computations shall be made on the basis of the
proportion that the number of days that this Lease was in effect for such
calendar year bears to 365.
For the purposes of this Lease, Operating Expenses shall mean any
and all costs paid or incurred in connection with the operation, servicing,
maintenance and repair of the Building, determined in accordance with Generally
Accepted Accounting Principles consistently applied (on an accrual basis) which
shall include, but not be limited to the following:
a. All real estate taxes, assessments, governmental levies, county
taxes or any other governmental charge, ordinary or
extraordinary, unforeseen, as well as foreseen, of any kind or
nature whatsoever, which are or may be assessed or imposed upon
the Building under the laws of the United States, the State of
Colorado, or any political subdivision thereof, or by the City
of Denver, as a substitute in whole or in part for taxes
payable or hereinafter imposed on the Building or resulting
from or due to any change in method of taxation, but excluding
any income,
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franchise, excise, corporation, estate, inheritance,
succession, capital stock or transfer tax levied on Landlord to
the extent that it is not a substitute in whole or in part for
real estate taxes. Any special assessment or charge in excess
of Forty Thousand Dollars ($40,000) which is paid in a lump sum
other than on an annual basis shall be allocated either: (i)
over the term of the assessment; or (ii) in the manner
reasonably consistent with other comparable high-rise office
building in the central business district of Denver, Colorado,
which are subject to the same assessment; provided, that any
special assessment or charge which is expensed in such a manner
shall be amortized with interest at the rate of nine percent
(9%) per annum.
b. Compensation provided in the form of wages, salaries and such
other compensation and benefits (including insurance, welfare,
retirement, vacation, holiday, sick pay, and other fringe
benefits) as well as any adjustments thereto for the following
classes of employees, employees of agents, or agents of
Landlord performing services rendered in connection with the
management, operation and maintenance of the Building:
(i) superintendent of the Building;
(ii) Building department heads and assistants;
(iii) clerical and accounting staff;
(iv) elevator operators, including starters and
assistant starters;
(v) window cleaners, porters, janitors, cleaners,
dusters, sidewalk shovelers and miscellaneous
handymen;
(vi) watchmen, gardeners, caretakers and persons
engaged in patrolling and protecting the
Building;
(vii) engineers, firemen, mechanics, electricians,
plumbers and persons engaged in the operating
and maintenance of the heating, air-
conditioning, ventilating, plumbing, electrical
and elevator systems of the Building; and
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(viii) carpenters, plasterers, painters and other
persons engaged in connection with the
management, operating and maintenance of the
Building.
c. The uniforms of employees specified in subdivisions (b) above
and the cleaning, pressing and replacement thereof.
d. Payroll taxes, including federal and state unemployment taxes
and social security taxes and any other such taxes that may be
created, payable in connection with the employment of any of
the employees specified in subdivision (b) above.
e. Premiums and other charges incurred by Landlord with respect to
the following insurance on employees specified in subdivision
(b) above, and on the Building as required by the Prime Lease
referred to in Article XXIV, but excluding sums reimbursable to
Landlord from Lessor under said Prime Lease, and if Landlord
elects to self insure some or all of the risks as would
normally be covered by a reasonably prudent operator an amount
deemed to be equal to the amount which would have been incurred
if insurance had been purchased.
(i) fire, extended coverage, including windstorm,
hail, explosion, riot, rioting attending a
strike, civil commotion, aircraft, vehicle and
smoke, and all risk;
(ii) public liability;
(iii) elevator;
(iv) boiler damage, water damage, legal liability,
and pilferage on Building equipment and
materials;
(v) workmen's compensation for the employees
specified in subdivision (b) above;
(vi) health, accident, disability and group life on
employees enumerated in subdivision (b) above as
therein qualified; and
(vii) other insurance which a reasonably prudent
operator of a first-class office building would
carry or which the holder of any mortgage
affecting the
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Building or the Building and the Land might
require to be carried under the terms of such
mortgage.
f. Costs or premiums (but not penalties or interest for late
payments) incurred for electricity, steam, gas, water, or
other utilities or fuels required in connection with the
operation and maintenance of the Building, including
electricity furnished by Landlord pursuant to Section
18.1.
g. Water and sewer charges.
h. Repairs or maintenance of the Building and the cost of
supplies, tools, materials, and equipment used in
connection therewith to the extent that the same are
customarily charged as operating expenses by landlords of
comparable high-rise office buildings in the central
business district of Denver, Colorado.
i. Replacement of tools and equipment to the extent that the
same are customarily charged as operating expenses by
landlords of comparable high-rise office buildings in the
central business district of Denver, Colorado.
j. Charges of any independent contractor incurred in
connection with operating, maintaining or repairing the
Building and its appurtenances, including inspection and
servicing of elevator, electrical, plumbing and mechanical
equipment; and the furnishing of cleaning and janitorial
services and the cost of materials, tools, supplies, and
equipment used in connection therewith.
k. Sales, use and excise taxes on goods and services
purchased or provided by Landlord to properly manage,
operate and maintain the Building.
l. Taxes levied against and paid by Landlord on rents
collected, excepting taxes levied and paid under the
provision of (a) above.
m. Vaults or tunnel taxes, permits or rentals.
n. License, permit and inspection fees.
o. Auditor's fees for public accounting.
p. Legal fees of outside or special counsel retained by
Landlord in connection with proceedings for the reduction
of real estate taxes,
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labor relations, or other matters to the extent that the
same shall be of general benefit to all tenants in the
Building.
q. Cost of telephone, telegraph, postage, stationery supplies
and other materials required for routine operating of the
superintendent's office.
r. Association dues and subscriptions which are for the
benefit of the Building.
s. Management fees, not to exceed four percent (4%) of the
Building's gross rents in any calendar year, and to the
extent comparable management fees are customarily charged
as operating expenses by other landlords of comparable
high-rise office buildings in the central business
district of Denver, Colorado; provided that the management
fees shall not include salaries of Building personnel
whose salaries are directly paid by the Building and
constitute Operating Expense under Section 6.4, supra.
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t. Restroom keys, security passes, directory strips, and
control cards.
u. Amortization of capital improvements which the Landlord
believes in the exercise of its reasonable business
judgment will improve Building operating efficiencies or
which may be required by governmental authorities due to
change in law, rules or regulations or the interpretation
of existing laws by applicable governmental authorities
which become effective after the date of this Lease with
interest at the rate of nine percent (9%) per annum on the
unamortized amount; provided, however, that the Landlord
may charge as an Operating Expense the cost of capital
improvements associated with compliance with the
American's With Disabilities Act ("ADA") in the common
areas and public restrooms in the Building.
v. Such other reasonable expenses and costs of any nature
whatsoever, whether or not herein mentioned, which would
be construed as an operating expense by a reasonably
prudent operator and in accordance with sound real estate
accounting practices.
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Notwithstanding anything contained in this Article, no expense
incurred for the following shall be included in Operating Expenses.
a. Any repairs to the Building including the Demised Premises where
the occurrence causing the damage or loss necessitating repair is
reimbursed by insurance carried by Landlord, or would be
reimbursed by insurance as would have normally been carried by a
reasonably prudent operator and for which a charge is includable
under the provisions specified in item (e) above.
b. Leasing or procuring new tenants including leasing commissions
paid to agents of Landlord or other brokers.
c. Renovating space for new tenants or in renovating space vacated
by any tenant.
d. Income, capital stock, estate or inheritance taxes payable by
Landlord provided the same shall not have been levied as a
substitute for or supplement to real property taxes.
e. Cost of utilities charged to tenants and any portion of
Landlord's payroll, material, and contract costs of other
services charged to tenants.
f. Costs incurred by Landlord for Tenant's alterations.
g. Cost of painting and decorating the premises of other tenants.
h. Depreciation of the Building.
i. Cost of capital improvements (except as set forth in (u) above).
j. Interest on debt or amortization payments on any mortgage or
mortgages, or any rent or other amounts paid under or because of
any ground or air rights lease.
k. Any cost or expense of any nature whatsoever which Landlord shall
incur in connection with the operation of the Building which is
specifically reimbursed to the Landlord from any source, charged
directly to the tenant on whose behalf it is incurred (whether or
not the same shall finally be paid), or for which Landlord is
otherwise compensated or recoups such expense by way of setoff,
reduction of recovery allowed, or otherwise.
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l. Advertising, marketing or promotional expenses (except those
related to existing tenant relations, such as tenant newsletters,
holiday decorations and event, and other tenant relation
services), including such expenses incurred in leasing or
procuring new tenants.
m. Repairs or rebuilding necessitated by casualty or condemnation.
n. The salaries and benefits of executive officers of Landlord, if
any, but not to the extent the amount paid would otherwise be
included as an Operating Expense under the first Section 6.4(b).
o. Except for cost related to hazardous or toxic materials which are
customarily used in comparable high-rise office buildings in the
central business district of Denver, Colorado, costs incurred to
test, survey, clean up, contain, xxxxx, remove or otherwise
remedy any spill or discharge of hazardous or toxic materials
within, on, under or about the Building of a condition which
existed on the Commencement Date or which was caused by another
tenant in the Building or by a third party.
p. Costs of special services (which shall not include normal
variations in repairs or the need for repairs), not rendered or
offered without reimbursement to all tenants of the Building.
q. The costs of electrical power provided to the premises of other
tenants or occupants of the Building which those tenants are
required to pay under their leases other than as their share of
Operating Expenses.
r. Space planning fees and commissions.
s. Tenant concessions and any other costs associated with the
leasing or sale of the Building, or the assignment of the Prime
Lease, or any portion thereof.
t. Landlord's costs of any special service sold to any tenant or
occupant of the Building for which Landlord is entitled to be
reimbursed as an additional charge or rental over and above the
basic rent and escalations payable under the lease or occupancy
agreement with that tenant or other occupant (including, without
limitation, after-hours HVAC costs or excess electrical
consumption costs incurred by other tenants or occupants).
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u. Any amounts paid to any person, firm or corporation related or
otherwise affiliated with Landlord any general partner, officer
or director of Landlord or any of its general partners, to the
extent they exceed arms-length competitive prices paid by
comparable high-rise office buildings in the central business
district of Denver, Colorado, for the services or goods provided.
v. Costs relating to maintaining Landlord's existence, either as a
corporation, partnership, or other entity, such as trustee's
fees, annual fees, partnership or organization or administration
expenses, deed recordation expenses, legal and accounting fees
(other than with respect to Building operations).
w. Costs incurred in excess of what would customarily be charged as
an operating expense due to Landlord's violation of any terms and
conditions of this Lease or any other lease relating to the
Building or any willful violation by Landlord of any law,
ordinance or governmental rule or regulation affecting the
Building, including without limitation, late charges, penalties
or interest.
x. Overhead profit increments paid to Landlord's subsidiaries or
affiliates for management or other services on or to the Building
in excess of those charged by unaffiliated companies providing
the same quality of the same services.
y. Except for a concierge service operated for all tenants of the
Building, compensation paid to clerks, attendants or other
persons in commercial concessions operated in or around the
Building by Landlord.
z. Legal or accounting fees, costs and disbursements for (i)
negotiating leases, (ii) enforcing the lease obligations of other
tenants in the Building other than the general enforcement of the
Building rules and regulations and other non-rental paying
obligations of all tenants in the Building, or (iii) defending
lawsuits with other tenants or mortgagees who allege a breach of
an agreement with Landlord.
aa. The costs and/or salaries of off-site management personnel except
the pro rata portion attributable to the Building based upon the
amount of time spent on Building matters.
bb. Title insurance, automobile insurance, key man and other life
insurance, long-term disability insurance and health, accident
and
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sickness insurance, except only for group plans providing
reasonable benefits to persons of the grade of building manager
and below employed and engaged in operating and managing the
Building.
cc. Except as there may otherwise be a substitute for taxes set forth
in the first Section 6.4a above, any franchise, succession,
transfer, gift tax, capital levy or corporation.
dd. Any cost of utilities, maintenance or operation of the retail
portions of the Building, in excess of the Operating Expenses
charged to other tenants (on a per square foot of rentable area
basis) in the Building.
ee. Any bad debt losses, rent losses or reserves for bad debt or rent
losses.
ff. Any cost related to the operation, maintenance or repair
of the parking garage.
gg. The cost of (i) existing sculptures, paintings and art work in
and around the Building; and (ii) future acquisitions of
sculptures, paintings and art work for Common Areas, to the
extent the cost of the item is in excess of $25,000 in any year.
hh. The cost of future acquisitions of sculptures, paintings and art
work for other than in Common Areas of the Building.
Landlord shall not recover through Operating Expenses any item of cost
more than once. Landlord shall, at all times during the entire Term of this
Lease, operate, manage, maintain and repair the Building in a manner consistent
with other comparable high-rise office buildings in the central business
district of Denver, Colorado.
If at any time during the Term of this Lease the occupancy of the
Building is less than one hundred percent (100%) of its capacity, then for the
purpose of this Article, the Operating Expenses per rentable square foot of
rentable floor space shall nevertheless be computed as if the Building were one
hundred percent (100%) occupied.
The obligations of Landlord and Tenant under this Article shall
survive the expiration or other termination of this Lease.
14
All costs and expenses which Tenant assumes or agrees to pay to
Landlord pursuant to this Lease, including Estimated Operating Expense
Differential pending computation of the Statement of Actual Adjustment
applicable thereto, shall be deemed additional rent, and, in the event of
nonpayment, Landlord shall have all the rights and remedies herein provided for
in case of nonpayment of rent.
Notwithstanding anything contained in this Article VI, any increase in
Operating Expenses resulting from a change in policy or practice in the
operating of the Building shall be included in Operating Expenses only if such
change in policy or practice is one which would have been made by a reasonably
prudent operator of a comparable first-class office building, but only if it is
not otherwise specifically excluded under this Section 6.4.
In no event will the Annual Base Rent be reduced below the amount in
Article V as a result of any adjustments pursuant to this Article.
6.5 Audit. Landlord shall maintain at all times during the Term of this
Lease full, complete and accurate books of account and records (prepared in
accordance with generally accepted accounting practices on a cash basis, with
variations consistent with the practices followed by comparable office building
owners in Denver, Colorado) with respect to Operating Expenses, and shall retain
such books and records, as well as contracts, bills, vouchers, and checks, and
such other documents as are reasonably necessary to properly audit the Operating
Expenses for each year of the Lease Term (as well as the Base Year). Upon
reasonable notice from Tenant, Landlord shall make available for Tenant's
inspection (or inspection performed by Tenant's accountant and/or consultants)
at Landlord's office during normal business hours, Landlord's books and records
relating to the Operating Expenses for the most recent full calendar year,
except that any audit of the Base Year must occur within twelve (12) months
after the end of the Base Year and the audit of all subsequent years must occur
within six (6) months of the date Landlord delivers the Statement of Actual
Adjustment to Tenant. If neither Landlord nor Tenant shall revise or challenge
the Statement of Actual Adjustment within said six (6) month period, the year in
question shall be deemed closed and neither Landlord nor Tenant shall be
entitled to recover, as the case may be, undercharges or overcharges for that
year. In the event Tenant challenges the calculation of a particular line item
on the Statement of Actual Adjustment, it may audit the calculation of such line
item (but not the entire Statement of Actual Adjustment) for the prior two (2)
years. If, on the basis of Tenant's review of Landlord's books and records, any
Statement of Actual Adjustment is determined to be in error (that is to have
resulted in an over charge to Tenant), Landlord shall (subject to its right to
contest) reimburse Tenant within thirty (30) days following such determination
for any overpayment of Operating Expenses, and, in addition, if the error
resulted in an overcharge to Tenant of five percent (5%) or more of the total
Operating Expenses of the Building, Landlord shall also reimburse Tenant, within
thirty (30) days after receipt of evidence of the cost, the reasonable cost of
Tenant's audit of Landlord's books and records (limited to the reasonable hourly
rate
15
cost, without contingent fee, of Tenant's accountant or consultant, neither of
which costs may be included as a Operating Expense). If, however, as a result of
Tenant's audit it is determined that Landlord undercharged Tenant for the
Operating Expense in question, Tenant shall reimburse Landlord for the
undercharged amount.
ARTICLE
--------
ASSIGNMENT, MORTGAGING AND SUBLETTING
7.1 Tenant will not, without the prior written consent of Landlord first
obtained in each case, sell, assign, mortgage, deed in trust or transfer this
Lease or sublet all or part of the Demised Premises. Tenant may, however,
without securing Landlord's consent, sublet any portion of the Demised Premises
to a subsidiary or affiliate of Tenant or assign or otherwise transfer this
Lease to any subsidiary or affiliate of Tenant or to any successor by
consolidation, merger, holding company, sale of all or substantially all of
Tenant's assets or stock or transfer of stock on a public exchange, or other
corporate action, provided that such successor shall have a net worth as
determined in accordance with Generally Accepted Principles of Accounting at
least equal to or greater than One Hundred Million Dollars ($100,000,000). Each
assignee or transferee (but not a sublessee) shall assume and be deemed to have
assumed this Lease and shall be and remain liable jointly and severally with
Tenant for the payment of the Annual Base Rent, additional rent and adjustments
of rent, and for the total performance of all of the terms, covenants,
conditions and agreements herein contained on Tenant's part to be performed for
Term of this Lease. No assignment, subletting, or other transfer of this Lease
(other than to a successor resulting from a consolidation, merger or a sale of
all or substantially all of the Tenant's assets or stock and the net worth
criteria is satisfied which shall release Tenant from any future liability or
obligations under this Lease) shall in any way relieve Tenant from its
obligations under this Lease. No assignment shall be binding on Landlord unless
such assignor shall deliver to Landlord a counterpart of such assignment and an
instrument in recordable form which contains a covenant of assumption by the
assignee; but the failure or refusal of the assignee to execute such instrument
of assumption shall not release or discharge the assignee from its liability as
set forth above. The consent of Landlord, if required, to an assignment shall
not include the right of further assignment.
7.2 With respect to any assignment, sublease or other transfer of any
interest herein or in the Demised Premises, Tenant shall notify the Landlord in
writing (hereinafter referred to as "Transfer Notice") of the terms of the
proposed assignment or subletting and the area so proposed to be assigned or
sublet. To the extent Landlord's consent is required, it shall advise Tenant
within fifteen (15) days after receipt of Tenant's Transfer Notice and all of
the information which is required to be provided by Tenant. Notwithstanding any
contrary provision herein, Tenant shall pay to Landlord, promptly following
Tenant's receipt thereof, the amount by which all rental and other payments
(whether paid in installments, as lump sum or otherwise) relating to the space
in question received by Tenant exceed the Base Rent, Additional Rent and other
16
amounts payable pursuant to this Lease for the subject period with respect to
such space (with the rental and other amounts payable by Tenant for the Premises
allocated on the basis of leasable area). Amounts payable under this Section by
Tenant to Landlord shall be based on gross figures and shall be net of the
following costs incurred by Tenant in connection with the transaction in
question: tenant improvements, leasing commissions, reasonable market
concessions, advertising costs and reasonable fees for legal, architectural and
engineering services, and any costs (leasing commissions and tenant
improvements) incurred by Tenant in connection with the transaction in question.
The provisions of this Section shall apply regardless of whether such
assignment, sublease or other transfer is made in compliance with the provisions
of this Lease. Any payments made to Landlord pursuant to this Section shall not
cure any default under this Lease arising from such assignment, sublease or
transfer. An assignment, transfer or sublease which does not require Landlord's
consent shall be subject to this Section 7.2 only if the applicable transfer
instrument specifically requires the assignee, transferee or assignee to pay
Tenant an amount of rent for the Demised Premises which Landlord would otherwise
be entitled to receive under this Section 7.2. Tenant shall not artificially
structure any assignment, sublease or other transfer in order to reduce the
amount payable to Landlord under this Section, nor shall Tenant take any steps
for the purpose of circumventing its obligation to pay amounts to Landlord under
this Section.
7.3 In the event Tenant completes a sublease with a third party, the
sublease shall be subject to and made upon the following terms:
a. Any such sublet shall be subject to the terms of this Lease and
no term thereof may extend beyond the expiration of this Lease.
b. The use to be made of the Sublet Space shall be a legal use and
in keeping with the character and tenant mix of the Building.
c. No sublease shall be valid and no subtenant shall take possession
of the premises subleased until an executed counterpart of such
sublease has been delivered to the Landlord and approved thereby
as being in accordance with the terms hereof.
d. No sublessee shall have a right to further sublet, and no
sublessee shall alter or remodel the premises without Landlord's
prior written consent.
Any use or occupancy of the Demised Premises by any corporation or
entity which controls or is controlled by the Tenant or under common control
with the Tenant shall be a use or occupancy of the Demised Premises by the
Tenant and shall not be deemed an assignment or subletting of the Demised
Premises or transfer of any right, title or interest of this Lease, the
leasehold estate created thereby or any part of
17
same to any such corporation or entity notwithstanding, that the corporation or
entity may reimburse or pay the Tenant any part of the cost to Tenant for such
use and occupancy.
7.4 In any case, where Landlord's consent is required under this Article
VII, it shall not be unreasonably withheld or delayed.
ARTICLE
--------
LANDLORD'S WORK; TENANT'S WORK; ALTERATIONS
8.1 Landlord shall provide the Demised Premises to Tenant in their "As
Is" condition, without any demolition of the existing improvements.
8.2 Landlord, at Landlord's expense, has previously provided ceilings
throughout the Demised Premises, installed with ceiling grid, ceiling tile,
light fixtures, sprinkler system and heating, ventilating, air conditioning
distribution system. Any revisions, moving or substitutions and improvements of
this ceiling system and components which occur because of the requirements of
Tenant's space development plans and specification will be at Tenant's expense
to the extent the cost thereof exceeds the tenant improvement allowance.
8.3 The work previously performed by Landlord in the Demised Premises,
consisting of the items set forth in Section 8.2 hereof and the ADA work to be
performed by Landlord in the restrooms (exclusive of the showers) within the
Demised Premises, are sometimes referred to herein as "Landlord's Work." The
work to be performed by Tenant in otherwise constructing the Demised Premises in
accordance with the provisions of Sections 8.4, 8.5, 8.6, 8.7, 8.8, 8.9, 8.10,
8.11, and 8.12 immediately below is sometimes cumulatively referred to herein as
"Tenant's Work." Within thirty (30) days after the execution of this Lease,
Tenant shall submit to Landlord a Construction Schedule designed to meet the
time periods set forth in this Lease. Landlord shall not unreasonably withhold
or delay its approval of such Construction Schedule.
8.4 Tenant shall have plans and specifications prepared for the
construction of the Demised Premises for Tenant. Tenant will submit those plans
and specifications for Landlord's approval, which will not be unreasonably
withheld or delayed. Landlord will review such plans and specifications without
charge and will, within seven (7) days after the receipt of the complete plans
and specifications, indicate to Tenant any changes, corrections or objections
which it may have to them. Landlord, as of the date hereof, has reviewed and
approved the Tenant's Space Plan dated February 13, 1997, and attached hereto as
EXHIBIT F.
8.5 When the plans and specifications for the construction of the
Demised Premises are completed and approved by Landlord, Tenant shall complete
the Tenant's Work in accordance therewith.
18
a. Tenant shall have the right to employ a contractor, an architect
and other persons of its own choosing to perform the work and
shall be responsible for the payment of them, provided, that
Tenant shall, if it can agree upon a contract reasonably
acceptable to Tenant, employ Kazin & Associates as the electrical
design engineer and ABS Consultants, Inc., as the mechanical
design engineer. In the event Tenant has been unable to negotiate
contracts with either Kazin & Associates or ABS Consultants,
Inc., which are reasonably acceptable to Tenant, it shall advise
Landlord of the problem and allow Landlord to attempt to resolve
the problem for Tenant before Tenant selects another electrical
design or mechanical design engineer. Landlord shall have a
reasonable right to approval over the contractor(s) selected by
Tenant evaluating such contractor(s) upon factors such as the
contractor(s') level of experience, insurance carried by the
contractor(s) and past dealings between Building management and
the contractor(s); provided, that PCC, Inc. (Provident
Construction, Inc.) shall be deemed to have been approved by
Landlord as the general contractor. Landlord must give Tenant
written notice of disapproval of any contractor within seven (7)
days of notification of the identity of a contractor or Landlord
will be presumed to have approved such contractor.
b. Landlord shall have no right to receive any fee or remuneration
related to Tenant's Work unless it is for work specifically
performed by Landlord or for Landlord by its agents pursuant to a
separate contractual arrangement for extraordinary work which
Landlord is required to perform for the Building as a direct
result of Tenant's Work.
c. Tenant shall employ people and means to insure so far as may be
possible the operation of the Building without interruption on
account of strikes, work stoppages or similar causes for delay.
All contracts of Tenant involving improvements, architectural and
related services in the Demised Premises shall provide for the
periodic delivery of lien waivers by the contractor and/or
architect and shall contain indemnity clauses by which contractor
will indemnify and hold Landlord harmless against any claim for
wages, materials or other liabilities arising out of the
contract. No less than seven (7) days prior to commencement of
construction, Tenant shall supply Landlord, for its review and
approval, copies of all construction contracts, the construction
budget (contractor bids), certificates of insurance from Tenant
and its contractors which name Landlord, its property manager,
its investment
19
advisor, and their respective employees and agents as additional
insureds and if requested by the Landlord. The Landlord shall
have seven (7) days after receipt of the documents referred to in
the immediately preceding sentence (except the construction
budget) to review and either approve or object to the documents,
which shall not be unreasonably withheld, conditioned or delayed.
d. Tenant shall notify Landlord at least twenty (20) days prior to
the commencement of Tenant's Work or first delivery of materials
to the Demised Premises. Landlord shall have the right to enter
the Demised Premises for purposes of posting such notices of
nonresponsibility or other notices designed to prevent Landlord,
the Building and/or the Demised Premises from being liable for
the costs of such improvements. Tenant agrees to defend,
indemnify and hold Landlord harmless against any and all claims
of liens, including, without limitation, reasonable attorneys'
fees arising out of the improvements made by Tenant to the
Demised Premises, including, without limitation, Tenant's Work.
8.6 Tenant shall make all progress and final payments in connection with
construction and moving; provided, however, that Landlord will periodically pay
Tenant its pro rata share of the tenant improvement allowance (which shall be
equal to a fraction the numerator of which is the total tenant improvement
allowance and the denominator of which is the total estimated cost of the tenant
improvements) less any retainage not to exceed ten percent (10%) which shall be
paid with the final invoice within fifteen (15) business days of receipt and
approval by Landlord of the following: (a) contractor's invoice/application for
payment or other reasonably satisfactory evidence; (b) lien waivers and/or
releases from each contractor, subcontractor and supplier; and (c) summary of
approved change orders. Within fifteen (15) business days of the receipt and
approval by Landlord of the following: (i) final contractor's
invoice/application for payment or other reasonably satisfactory evidence; (ii)
final lien waivers and/or releases from each contractor, subcontractor and
supplier; (iii) final summary of approved change orders; (iv) contractor
warranties; (v) certificate from Tenant that final punchlist has been completed
and copy of final punchlist; (vi) final inspection and certificate of completion
from Landlord's architect/consultant which shall be completed within fifteen
(15) days of the receipt by Landlord of Tenant's certificate that the final
punchlist has been completed; and (vii) copy of Tenant's Final Inspection
Approval Certificate, Landlord shall reimburse or pay Tenant the final
contractor invoice, including the amount of any retainage; provided, however,
that the periodic payments of the tenant improvement allowance will only be paid
to Tenant for the actual cost of tenant improvements made in accordance with the
agreed upon plans and specifications and to the extent the cost of Tenant's Work
exceeds the tenant improvement allowance, Tenant shall be responsible for and
shall pay said excess.
20
8.7 During the construction of Tenant's Work, Landlord, its agents and
architect/consultant shall have the right to enter upon the Demised Premises for
the purpose of inspecting Tenant's Work to insure, solely for the benefit of
Landlord, that Tenant's Work is being properly and satisfactorily completed in
accordance with Tenant's approved plans and specifications, applicable building
codes, and government laws, rules and regulations. In addition, during the
construction and prior to making any changes in the approved plans and
specifications to the electrical, mechanical, HVAC and life safety systems in
the Demised Premises, Tenant shall submit to Landlord and its architect, for its
approval, copies of change orders, which approval shall not be unreasonably
withheld. Landlord and its architect will review the change orders and will
within two (2) business days after their receipt, indicate to Tenant any
changes, corrections or objections to the change orders. Should Landlord fail to
notify Tenant of any such objections within said two (2) business day period it
shall be deemed to have approved the change order tendered to it. Failure to
complete Tenant's Work by the Commencement Date shall be a cause for extension
of the Commencement Date.
8.8 It shall be the responsibility of Tenant to place firm orders of
communications equipment and its installation with the local telephone company
and others so as to ensure the completion of Tenant's telephones and other
communications facilities concurrent with Tenant's Work. Failure to have the
Tenant's communications facilities completed shall not be a cause for extension
of the Commencement Date.
8.9 Tenant may, from time to time during the Term of this Lease, upon
obtaining Landlord's consent, which shall not be unreasonably withheld or
delayed, make such alterations, additions, substitutions, and improvements to
the Demised Premises as Tenant may reasonably deem necessary or desirable to
adapt the Demised Premises or any part thereof, for its purposes, providing the
outside appearance and strength of the Building are not affected. Tenant agrees
to submit plans to Landlord for said alterations, additions, substitutions and
improvements to be made.
8.10 Except as otherwise agreed upon in writing or to the extent the
following were in the Demised Premises before the execution of this Lease, and
so long as Tenant is not in default of the Lease, all goods, effects, personal
property, movable walls, raised flooring, reception desk, audio visual and
telecom equipment, security equipment, appliances, furniture, business and trade
fixtures, machinery and equipment (including the emergency generator, UPS,
auxiliary HVAC and satellite dish) owned by Tenant or installed by Tenant at
Tenant's expense in the Demised Premises ("Tenant's Effects") shall remain the
personal property of Tenant and may be removed by Tenant at any time, and from
time to time, during the Term of this Lease; provided Tenant shall, in removing
any such property, repair all damage to the Demised Premises and the Building
caused by such removal and restore it to the Building standard, excepting normal
wear and tear.
21
8.11 Tenant's Work and all alterations, additions, substitutions, and
improvements made and installed for Tenant, whether at Tenant's or Landlord's
cost, upon termination of this Lease for any reason, shall become Landlord's
property, except for Tenant's Effects. Tenant shall be responsible for the
maintenance of Tenant's Work and all such alterations, additions, substitutions
and improvements made as an addition to or a substitute for Landlord's Work, and
Tenant shall not remove Tenant's Work or Landlord's Work without the prior
written consent of Landlord; provided, however, that in conjunction with the
approval of Tenant's plans and specifications, Landlord shall provide Tenant
with a list of those improvements in addition to the Tenant's Effects which
Landlord may, at its option, require that Tenant shall either remove or leave
and those which Tenant can remove in the Demised Premises upon the termination
of this Lease; provided, however, but subject to Landlord's reasonable review of
Tenant's plans and specifications, Tenant shall not be required to remove any
existing improvements in the Demised Premises or any standard tenant
improvements for office space which are included in the initial tenant
improvement plans for the Demised Premises, such as partition walls, doors and
frames, ceilings, standard lighting and fixtures, HVAC and electrical
installations, electrical wiring, carpet and floor covering, shelving (other
than movable file systems which may be attached to rails), book cases, and
secretarial stations. As soon as possible, but not later than within thirty (30)
days after the termination of the Lease, Landlord shall advise Tenant in writing
of the items on the list which Landlord requires Tenant to remove.
8.12 All Tenant plans for original Tenant's Work (other than
Landlord's work in the restrooms) and for later alterations, additions,
substitutions and improvements shall meet all governmental codes that are
applicable to such Tenant's Work.
8.13 At its own expense, Tenant shall cause to be discharged, or shall
post adequate security against any mechanic's lien filed against the Demised
Premises or the Building for work claimed to have been done for, or materials
claimed to have been furnished to, Tenant, within thirty (30) days of the filing
thereof.
ARTICLE IX
----------
ORDINARY REPAIRS
9.1 Except as otherwise provided in this Lease, Tenant shall keep the
Demised Premises and the Tenant's Work therein in good order and condition and,
at its sole cost and expense, make all repairs thereto caused by its negligence,
misfeasance, or malfeasance or by its use of the Demised Premises, or any part
thereof, in a manner not customary for general office purposes, and commit no
waste in the Demised Premises or the Building.
9.2 Landlord shall maintain or cause to be maintained in a good
condition and repair similar to other comparable high-rise office buildings in
the central business district of Denver, Colorado, the structural portions of
the Building, the roof, roof
22
membrane, foundations, floors and exterior walls and exterior windows of the
Building, the electrical, plumbing, life safety, heating, ventilation and air
conditioning systems of the Building (including those within the Demised
Premises, but excluding any equipment installed by Tenant [the "Building
Systems"], and all Building standard hardware, light fixtures and ballasts, the
Common Areas (including lighting, gardening, cleaning, snow removal and
sweeping), and all portions of the Building the maintenance of which is not the
express obligation of Tenant or other occupants of the Building. Landlord shall
also supply the Demised Premises with janitorial service in accordance with the
specifications attached hereto as EXHIBIT G (which specifications may be
reasonably modified from time to time by Landlord in conjunction with its
periodic renegotiation of janitorial contracts) and shall provide window
cleaning for the exterior windows of the building not less than two (2) times
per year. Additionally, Landlord shall provide the Common Areas with such other
services, including, but not limited to, such air-cooling and heating as may in
the reasonable judgment of Landlord, and subject to governmental regulations, be
required for the comfortable use and occupancy of the Building. The term "walls"
for the purpose of this paragraph exclude doors, custom office fronts and entry
areas in the Demised Premises. Landlord shall cooperate with Tenant's efforts to
maintain satisfactory indoor air quality in the Demised Premises, which shall
mean an air quality reasonably equivalent to other comparable high-rise office
buildings in the central business district of Denver, Colorado. Tenant shall
have the right, from time to time, to test the air quality within the Demised
Premises. If it is determined by a qualified third party air quality engineer
that the air quality in any material portion of the Demised Premises that is
occupied by Tenant's employees (as opposed to storage space) is for seven (7)
consecutive days not in accordance with the requirements of this Lease, Tenant
shall notify Landlord in writing and shall provide Landlord with the report and
all testing data and, if the deficiency has not been corrected within thirty
(30) days thereafter or such longer period as may be reasonably necessary to
cure, the Rent shall be abated in the manner provided in Section 22.4 of the
Lease. Landlord agrees that upon receipt of that written notice, it will use
reasonable efforts to correct the deficiency as soon as practicable); provided,
however, that the Landlord shall not be responsible for correcting the
deficiency in the air quality to the extent it is caused by the Tenant. Landlord
shall, if required by Colorado law, also maintain and repair the intra-building
network cable in the Building from the minimum point of entry (i.e., the local
----
telephone company's final access point to the Building exterior to the Demised
Premises. After reasonable notice to Landlord, Tenant shall also have the right,
from time to time, and at its own expense, to inspect the intra-building network
cable serving the Demised Premises (or any rooftop telecommunications facilities
operated by Tenant); provided that Landlord shall have the right to require that
Landlord's representative accompany Tenant's representative on any such
inspection. Landlord shall at all time use its reasonable efforts to ensure that
all locations within the Building which house intra-building network cable
serving the Demised Premises (or any rooftop telecommunications facilities
operated by Tenant) are secure on a twenty-four (24) hour per day basis.
Landlord shall not allow any access points in the intra-building network cable
serving the Demised Premises to be available for general unsecured access.
23
Subject to the provisions of Section 6.4 and this Section 9.2, the cost of
Building Services shall be considered part of the Operating Expenses.
Landlord shall at all times maintain the main Building lobby in a
fashion fitting for other comparable high-rise office buildings in downtown
Denver. Landlord shall not allow the main Building lobby to serve as a "waiting
room" for clients or customers of tenants of the Building.
Tenant agrees that, subject to Article 22, Landlord shall not be
liable for any failure to supply or interruption of, Building Services caused by
force majeure delay. Landlord agrees, however, to use reasonable efforts to
supply Building Services.
9.3 Except as expressly provided otherwise in this Lease and as long
as Landlord uses reasonable efforts under the circumstances, there shall be no
allowance to Tenant or diminution of rent and no liability on the part of
Landlord by reason of inconvenience, annoyance, or injury to business arising
from the making of any repairs, alterations, additions, substitutions or
improvements in or to any portion of the Building or the Demised Premises or in
and to the fixtures, appurtenances, and equipment thereof provided that in each
case such repairs, alterations, additions, substitutions, or improvements are
effected in a manner least likely to result in inconvenience to the Tenant, and
provided further that in each case all work done in connection with such
repairs, alterations, additions, substitutions, or improvements is done promptly
and in a good workmanlike manner. This provision shall not be construed as to
require the Landlord to do the work at overtime rates. If Tenant requests that
such work be done in such a manner or on a schedule requiring overtime payment,
Tenant will pay the excess of the overtime cost over ordinary rates. Landlord
agrees to use its best efforts to do any work done by it in such a manner as not
materially to interfere with or impair Tenant's use of the Demised Premises.
ARTICLE X
---------
FLOOR LOAD; OFFICE EQUIPMENT; MOVING HEAVY EQUIPMENT
10.1 Tenant shall not place a load upon any floor of the Demised
Premises which exceeds the floor load per square foot which such floor was
designed to carry. Floor load is stipulated to be 70 pounds per square foot.
Landlord and Tenant will determine jointly the approximate weight and the
position of all safes and heavy installations which the Tenant wishes to place
in the Demised Premises, so as to distribute properly the weight thereof.
10.2 Business machines and mechanical equipment belonging to Tenant
which cause unreasonable noise and/or vibration that may be transmitted to the
structure of the Building or to any leased space to such a degree as to
unreasonably disturb the Landlord or to any tenants in the Building shall be
placed and maintained by the party owning the machines or equipment, at such
party's expense, in settings of cork, rubber,
24
or spring-type noise and/or vibration eliminators sufficient to eliminate
vibration and/or noise.
10.3 Should Tenant desire to move any heavy or bulky equipment the
movement of which is regulated by any statute, ordinance, or rule or regulation
of any public authority having jurisdiction, or which requires special
arrangements to be made by the Landlord to accommodate such movement, Tenant
shall submit to Landlord notice of the terms and manner in which it proposes to
move such equipment and Landlord shall, with reasonable dispatch, make
appropriate arrangements to accommodate Tenant's intentions and facilitate such
movement of equipment. All such activities will be carried out in full
compliance with the applicable codes of the City of Denver, and in harmony with
the structural design of the Building.
ARTICLE XI
----------
LAWS, ORDINANCES, AND REQUIREMENTS OF PUBLIC AUTHORITIES
11.1 Tenant, at its expense, shall comply with all laws, rules,
regulations, ordinances or orders of federal, state, county and municipal
authorities having jurisdiction, and with any lawful direction or any public
officer or officers, which shall impose any duty upon Landlord or Tenant with
respect to the use or occupation of the Demised Premises by Tenant, provided
such duty arises from or results from Tenant's failure to comply with Tenant's
covenants in this Lease or from Tenant's negligence or from the use of the
Demised Premises in a manner contrary to the purposes for which the same are
leased to Tenant. Tenant represents and warrants that at the Commencement Date
of this Lease the Tenant's Work in the Demised Premises will be in compliance
with all applicable laws, rules, regulations, ordinances, orders and directions.
Landlord represents and warrants that as of the date of this Lease it has not
received any notice and has no actual knowledge that the Land, Building or the
Demised Premises are not in compliance with all applicable laws, rules,
regulations, ordinances, order or directory (including, without limitation,
environmental laws and the ADA).
11.2 If either Landlord or Tenant should desire to contest the
validity of any such law, rule, regulation, ordinance, order or direction with
which either is obligated to comply, it may, at its expense, carry on such
contest; and non-compliance during such contest shall not constitute a breach of
this Lease; provided that the parties so contesting shall, to the satisfaction
of the other, indemnify and hold the other harmless against the cost of
compliance and against all liability for any loss, damages, and expenses
(including reasonable attorneys' fees) which might result from or be incurred in
connection with such contest or non-compliance; except that non-compliance shall
not continue so as to subject either party to a reasonable likelihood of
prosecution for a crime or unreasonably and materially interfere with Tenant's
use of the Demised Premises.
25
11.3 If either party receives written notice of any violation of any
law, ordinance, rule, order, or regulation applicable to the Land, Demised
Premises or the Building, it shall give prompt notice thereof to the other.
11.4 Hazardous Materials:
a. Landlord and Tenant shall, with regard to the Building and
the Demised Premises, at all times and in all respects
comply with all federal, state and local laws, ordinances,
rules and regulations ("Hazardous Materials Laws")
applicable to it relating to industrial hygiene,
environmental protection or their respective use, analysis,
generation, manufacture, storage, presence, disposal or
transportation of any Hazardous Materials (as hereinafter
defined).
b. Tenant shall not cause or permit any Hazardous Materials
(other than the types and quantities which are customarily
used by Tenants in high-rise office buildings in the central
business district of Denver, Colorado) to be brought upon,
kept, stored, generated, treated, manufactured, produced,
disposed of, discharged, released, spilled or used in, on or
about the Demised Premises and Building by Tenant or
Tenant's affiliates, authorized agents, employees or
contractors, sublessees or assignees (collectively, the
"Tenant Parties"). Notwithstanding the foregoing, Tenant may
use Hazardous Materials to the extent customary for the
operation of Tenant's permitted use of the Demised Premises;
provided that Tenant may use such Hazardous Materials only
if used and disposed of in accordance with manufacturers'
specifications, if any, and all applicable laws. If the
presence of Hazardous Materials on the Demised Premises,
caused either directly or indirectly by Tenant, results in
contamination of the Demised Premises, the Building or any
adjacent property, then Tenant shall indemnify, defend and
hold harmless Landlord from and against any and all claims,
judgments, actions, damages, penalties, fines, forfeitures,
costs, expenses, liabilities or losses (including, without
limitation, diminution in value of the Demised Premises, the
Building and/or adjacent property, damages for the loss or
restriction on use of rentable or usable space of any
amenity of the Demised Premises, the Building and/or
adjacent property, damages arising from any adverse impact
on marketing of the Demised Premises, the Building and/or
adjacent property, and sums paid in settlement of claims,
attorneys' fees, consultant fees and expert fees and court
costs) which arise during or after the Lease Term or any
extension hereof, as a result of such breach.
26
This indemnification of Landlord by Tenant includes, without
limitation, costs incurred after and because of such breach
in connection with any investigation of site conditions or
any cleanup, remedial, removal or restoration work required
by any federal, state or local governmental agency or
political subdivision because Material present in the soil
or ground water on or under the Demised Premises, the
Building and/or adjacent property caused by Tenant. Without
limiting the foregoing, if the presence of any Hazardous
Material on the Demised Premises, caused either directly or
indirectly by Tenant or any of the Tenant Parties, results
in any contamination of the Demised Premises, the Building
and/or adjacent property, Tenant shall promptly take all
actions at its sole cost and expense (subject to the right
to recover against other responsible parties) as are
necessary to return as nearly as possible the contaminated
portion of the Demised Premises, the Building and/or
adjacent property to the condition existing prior to the
introduction of any such Hazardous Material to the Demised
Premises, the Building and/or adjacent property; provided
that Tenant shall not take any remedial action in or about
the Demised Premises or the Building, nor enter into any
settlement agreement, consent decree or other compromise
with respect to any claims relating to Hazardous Materials
in any way connected with the Demised Premises or the
Building, without first notifying Landlord of Tenant's
intention to do so and affording Landlord the opportunity to
appear, intervene or otherwise appropriately assert and
protect Landlord's interest with respect thereto.
c. Landlord shall not cause or permit any Hazardous Materials
(other than the types and quantities which are customarily
used by other landlords in high-rise office buildings in the
central business district of Denver, Colorado) to be brought
upon, kept, stored, generated, treated, manufactured,
produced, disposed of, discharged, released, spilled or used
in, on or about the Demised Premises and Building by
Landlord or Landlord's affiliates, authorized agents,
employees or contractors. Notwithstanding the foregoing,
Landlord may use Hazardous Materials to the extent customary
for the operation of Landlord's use of the Building;
provided that Landlord may use such Hazardous Materials only
if used and disposed of in accordance with manufacturers'
specifications, if any, and all applicable laws.
d. As used in this Lease, the term "Hazardous Materials Laws"
means any requirement of federal, state, or local law, civil
or
27
criminal, or regulation, relating to air quality, surface
water quality, ground water quality, soil solid waste
management, hazardous or toxic substances, or the protection
of health or the environment, including by way of
illustration and not of limitation: the Clean Air Act
("CAA"), 42 U.S.C. (S) 7401, et seq., its regulations and
-- ---
equivalent or similar state statute and regulations; the
Federal Water Pollution Control Act ("FWPCA"), 33 U.S.C. (S)
1251, et seq., its regulations and equivalent or similar
-- ---
state statute and regulations; the Resource Conservation and
Recover Act ("RCRA"), 42 U.S.C. (S) 6901, et seq., its
-- ---
regulations and equivalent or similar state statute and
regulations; the Comprehensive Environmental Response,
Compensation and Liability Act ("CERCLA"), 42 U.S.C. (S)
9601, et seq., its regulations and equivalent or similar
-- ---
state statute and regulations; the Toxic Substances Control
Act ("TSCA"), 15 U.S.C. (S) 2601, et seq., its regulations
-- ---
and equivalent or similar state statute and regulations; the
Oil Pollution Act, 33 U.S.C. (S) 2701, et seq., its
-- ---
regulations and equivalent or similar state statute and
regulations; the Emergency Planning and Community Right-to-
Know Act ("EPCRA"), 42 U.S.C. (S) 1101, et seq., its
-- ---
regulations and equivalent or similar state statute and
regulations; the Pollution Prevention Act, 42 U.S.C. (S)
1301, et seq., its regulations and equivalent or similar
-- ---
state statute and regulations; the Hazardous Material
Transportation Act ("HMTA"), 49 U.S.C. Ap. (S) 1471, its
regulations and equivalent or similar state statute and
regulations; the Safe Drinking Water Act ("SDWA"), 42 U.S.C.
(S)(S) 300(f) through 300(j), its regulations and equivalent
or similar state statute and regulations; and all
corresponding Colorado statutes and regulations; including
any retroactive amendments or extensions thereof in effect
on the date hereof.
e. As used in this Lease, the term "Hazardous Material" means
any flammable item, explosive, radioactive material,
hazardous or toxic substance, material or waste or related
materials, included in the definition of "hazardous
substances", "hazardous wastes", "infectious wastes",
"hazardous materials", "toxic substances," "biomedical
waste," "biohazardous waste," or "sharps waste" now or
subsequently regulated under any Hazardous Materials Laws.
f. Tenant immediately shall notify Landlord in writing of: (i)
any spill, release, discharge or disposal of any Hazardous
Material in, on, under, around or about the Demised
Premises, the Building or any portion thereof caused by
Tenant and of which Tenant has knowledge; (ii) any
enforcement, cleanup, removal or other
28
governmental or regulatory action instituted, contemplated,
or threatened against Tenant pursuant to any Hazardous
Materials Laws and relating to the Demised Premises or the
Building of which Tenant has knowledge; (iii) any claim made
or threatened by any person against Tenant, any of the
Tenant Parties and relating to the Demised Premises, or the
Building relating to damage, contribution, cost recovery,
compensation, loss or injury resulting from or claimed to
result from any Hazardous Materials of which Tenant has
knowledge; and (iv) any reports made by Tenant to any
governmental agency or entity arising out of or in
connection with any Hazardous Materials in, on, under,
around or about or removed from the Demised Premises or the
Building of which Tenant has knowledge, including any
complaints, notices, warnings, reports or asserted
violations in connection therewith. Tenant also shall supply
to Landlord as promptly as possible, and in any event within
five (5) business days after Tenant first receives or sends
the same, copies of all claims, reports, complaints,
notices, warnings or asserted violations relating in any way
to the Demised Premises, the Building or the use or
occupancy thereof by Tenant or any of the Tenant Parties.
Upon any termination of this Lease, whether by lapse of
time, cancellation pursuant to an election provided for
herein, forfeiture or otherwise, Tenant shall immediately
surrender possession of the Demised Premises (and all
improvements to the Demised Premises which Tenant is not
required to remove from the Demised Premises pursuant to
this Lease) to Landlord free of any Hazardous Material
placed on the Premises by Tenant or Tenant Parties and any
cleanup or disposal of Hazardous Materials shall be done in
compliance with all Hazardous Materials Laws.
g. Any failure of Tenant to comply with the provisions of this
Section 11.4 shall be a material default under this Lease
enabling Landlord to exercise any of the remedies set forth
in this Lease.
h. The provisions of this Section 11.4 shall survive the
expiration or earlier termination of the Lease Term.
ARTICLE XII
-----------
COMPLIANCE WITH INSURANCE REQUIREMENTS
AND CERTIFICATE OF OCCUPANCY
12.1 Neither Landlord nor Tenant shall do or permit to be done any act
or thing about in or upon the Building or the Demised Premises within its
reasonable control which will invalidate or be in conflict with the Final
Inspection Approval Certificate or the
29
terms of the State of Colorado standard form of fire insurance policies covering
the Building and the fixtures and property therein, excluding Tenant's trade
fixtures and personal property in the Demised Premises. Both parties shall, at
their own expense, comply with all rules, orders, regulations or requirements of
the National Fire Protection Association or any other similar body having
jurisdiction, and neither shall knowingly do or permit, if within its reasonable
control, to be done about, in or upon the Building or the Demised Premises or
bring or keep anything therein or use the same in a manner which increases the
rate of fire insurance upon the Building or on any property or equipment located
therein, including property or equipment located in the Demised Premises.
Notwithstanding the foregoing requirements of this Section 12.1, if the adverse
consequences to one party of non-compliance by the other party with such
requirements are limited to an increase in rate of fire and extended coverage
insurance carried by the party in compliance, non-compliance shall not
constitute a breach of this Lease, but either Section 12.2 or 12.3 below will
apply.
12.2 If any installation in or use of the Demised Premises by Tenant
increases the rate for fire insurance (with extended coverage) on the Building
or on the property and equipment of Landlord, Tenant shall reimburse Landlord
for that part of the fire insurance premiums thereafter paid by Landlord which
shall have been charged because of such installation or use by Tenant, and
Tenant shall make the reimbursement on the first day of the month following
receipt of notice given by Landlord that it has been required to pay and has
paid such higher rate, subject to Tenant's right to contest the increase.
12.3 If, by reason of the action of Landlord in violation of this
Lease, Tenant's rate for fire insurance (with extended coverage) on Tenant's
property and equipment in the Demised Premises shall be higher than it otherwise
would be, Landlord shall reimburse Tenant for that part of Tenant's premiums for
fire insurance (with extended coverage) thereafter paid by Tenant which shall
have been charged because of such action. Landlord shall make such reimbursement
on the first day of the month following the receipt of notice given by Tenant
that it has been required to pay and has paid such higher rate.
ARTICLE XIII
------------
OBSERVANCE OF RULES AND REGULATIONS AND
COVENANT OF QUIET ENJOYMENT
13.1 Tenant, its servants, employees, agents, visitors and licensees
shall observe faithfully and comply strictly with the Rules and Regulations set
forth in EXHIBIT D, attached hereto and made a part hereof; provided, however,
that Landlord shall enforce the same in a uniform and nondiscriminatory manner
as to all office tenants in the Building. Landlord shall have the right to make
reasonable changes in and additions to the Rules and Regulations thus set forth;
provided such changes and additions do not unreasonably affect or materially and
adversely interfere with the
30
conduct of Tenant's business in the Demised Premises or which are materially
inconsistent with this Lease.
13.2 Any prior failure by Landlord to enforce any Rules and
Regulations now or hereafter in effect, either against Tenant or any other
tenant in the Building, shall not constitute a waiver of Landlord's right to
enforce uniformly any such Rules and Regulations at a future time.
13.3 Landlord covenants that upon Tenant's paying the Annual Base Rent
and additional rent and observing and performing all the terms, covenants, and
conditions of this Lease on its part to be observed and performed, Tenant shall
be entitled to peaceably and quietly enjoy the Demised Premises without
unreasonable interference by Landlord, subject, nevertheless, to the terms and
conditions of this Lease.
ARTICLE XIV
-----------
LIABILITY INSURANCE; EXCULPATION OF LANDLORD AND TENANT
14.1 Except as otherwise provided in this Lease, Landlord shall not be
liable for any personal injuries occurring in the Demised Premises or for damage
or injury to personal property of Tenant, or of any other person, done or
occasioned by or from electric wiring, plumbing, dampness, water, gas, steam, or
other pipes, or sewage, or the failure of the air-conditioning or refrigeration
system, or the breaking of any electric wire, the bursting, leaking, or running
water from any tank, washstand, water closet, or waste pipe, sprinkler system,
radiator or any other pipe in, above, upon or about the Demised Premises, or
which may at any time hereafter be placed herein; or for any such personal
injury or property damage occasioned by fire, explosion, falling plaster,
electricity smoke, or water, snow, or ice being upon or coming through from the
street, roof, subsurface, skylight, trapdoor, or windows; or for any damages or
injuries to persons or property arising from acts or neglect of any tenant or
occupant of the Building, or of any owners or occupants of adjacent or
contiguous property; or for the loss or theft of any property of Tenant however
occurring, including loss of property entrusted to employees of Landlord;
provided, however, that Landlord shall be liable for such of all or any of the
foregoing as may be due to Landlord's or its employees, agents and contractors
negligence or willful misconduct or breach of its representations or obligations
under this Lease; provided further, that in the event that Tenant shall suffer
any loss or be subjected to any liability as a result of any of the foregoing,
and the same shall have been caused by or is alleged to have resulted from any
architect, engineer, contractor or other third party against whom Landlord shall
have right of recovery if it shall suffer similar loss, Landlord shall be liable
to Tenant for all of Tenant's losses so suffered, but only to the extent that
Landlord shall be successful in recovering such losses from such third party or
parties (or its or their liability insurer) by way of claim or suit instituted
at Tenant's request.
31
14.2 Section 14.1 shall not be construed to impose upon Landlord or
Tenant any liability as to which rights of subrogation have been waived under
Section 14.7 of this Lease.
14.3 Landlord's Property Insurance. Landlord shall secure and maintain
"all risk" property insurance on the Building for full replacement cost of the
Building and the initial tenant improvements. Landlord shall not be obligated to
insure any furniture, equipment (including Tenant's emergency generator,
satellite dish and auxiliary HVAC system), trade fixtures, machinery, goods or
supplies which Tenant may lease or maintain in the Demised Premises, or any
addition or improvement which Tenant may make upon the Demised Premises after
the construction of the initial tenant improvements. In addition, Landlord shall
secure and maintain rental income insurance. Landlord may (subject to a showing
of adequate financial responsibility to cover the amount of self-insurance)
elect to self-insure for the coverages required under this Article; provided,
that Landlord and its constituent partners shall be liable to the extent it
self-insures for the coverages and limits set forth as Landlord's obligation in
this Lease. If the annual cost to Landlord for such property or rental income
insurance exceeds the standard rates because of the nature of Tenant's
operations, Tenant shall, upon receipt of appropriate invoices, reimburse
Landlord for such increases in cost.
14.4 Liability Insurance.
(a) Tenant (with respect to the Demised Premises and its
negligence in the Common Areas of the Building) shall secure and maintain, at
its own expense, a policy or policies of Commercial General Liability Insurance
protecting Tenant and naming Landlord and Landlord's representatives (which
term, whenever used in this Article XIV, shall be deemed to include the
following: Landlord's agents and employees; the State of California Public
Employees' Retirement System and its agents, employees, trustees, officers,
directors, property manager, and advisors; which are currently the Xxxxxxxxx
Company and LaSalle Advisors Limited) as additional insureds against claims for
bodily injury, personal injury, advertising injury and property damage based
upon, involving or arising out of the Tenant's use, occupancy or maintenance of
the Demised Premises and its negligence in the Common Areas of the Building.
Such insurance shall afford a combined single limit of not less than One Million
Dollars ($1,000,000) per occurrence and aggregate of Two Million Dollars
($2,000,000). The coverage required to be carried shall include blanket
contractual liability, personal injury liability (libel, slander, false arrest
and wrongful eviction), and broad form property damage liability and the policy
shall contain an exception to any pollution exclusion which insures damage or
injury arising out of heat, smoke or fumes from a hostile fire. Such insurance
shall be written on an occurrence basis and contain a standard separation of
insureds provision. Tenant shall secure and maintain at its expense business
auto liability insurance which insures against bodily injury and property damage
claims arising out of the ownership, maintenance and use of any business or
hired auto with a minimum combined single limit per accident of One Million
Dollars ($1,000,000). In addition,
32
Tenant shall secure and maintain workers' compensation and employer's liability
insurance with limits as may be required by applicable law. Tenant shall also
secure and maintain umbrella excess liability insurance on an occurrence basis
excess of the required Commercial General Liability Insurance, business auto
liability and employer's liability policies, which insures against bodily
injury, property damage, personal injury and advertising injury claims, arising
out of Tenant's use maintenance of the Demised Premises and Tenant's negligence
in the Common Areas of the Building, with a combined single limit of not less
than Five Million Dollars ($5,000,000) per occurrence and an annual aggregate of
Five Million Dollars ($5,000,000). Tenant's general and umbrella liability
insurance required to be maintained by Tenant under this Lease shall name
Landlord and its representatives as additional insureds. Tenant shall provide
Landlord with a certificate evidencing such insurance coverage. To the extent of
Tenant's obligation under this Lease to indemnify and hold Landlord harmless,
Tenant's insurance shall be primary to and not contributory with any other
insurance available to Landlord, whose insurance shall be considered excess
insurance only; provided, that the foregoing shall apply to the Tenant's use,
occupancy and maintenance of the Demised Premises and its negligence in the
Common Areas of the Building. Not more frequently than every three years, if, in
the reasonable opinion of any mortgagee of Landlord or of the insurance broker
retained by Landlord, the amount of liability insurance coverage at that time is
not consistent with coverage required of similar tenants in the Building, then
Tenant shall increase its liability insurance coverage as required by either any
mortgagee of Landlord or Landlord's insurance broker.
(b) Landlord (with respect to the Building and Common Areas)
shall secure and maintain Commercial General Liability Insurance for at least
the minimum coverage described in Section 14.4(a), but not less than that
carried by comparable high-rise office building in downtown Denver, Colorado.
Subject to the conditions set forth in Section 14.3, Landlord may elect to self-
insure for this coverage. Tenant shall be named as an additional insured on any
liability insurance policy required to be maintained by Landlord under this
Lease for liability resulting from Landlord's negligence in the Common Areas of
the Building. Except to the extent liability results from Tenant's negligence in
the Common Areas of the Building, the Landlord's insurance covering the Building
and the Common Areas shall be primary to and not contributory with any other
insurance available to Tenant, whose insurance shall be considered excess
insurance only. Upon Tenant's request, Landlord shall provide Tenant with
evidence of insurance in the form of a certificate showing that Tenant is
included as an additional insured on Landlord's general liability insurance
required to be maintained by Landlord under this Lease.
14.5 Tenant's Insurance.
(a) Tenant shall secure and maintain, at Tenant's expense, "all
risk" property insurance on all of Tenant's fixtures and personal property in
the Demised Premises and, except to the extent the Landlord is required to cover
the initial tenant
33
improvements, on any improvements or alterations, additions or improvements made
by Tenant, upon the Demised Premises all for the full replacement cost thereof.
Tenant shall use the proceeds from such insurance in such manner as it
reasonably determines is necessary to restore its operation in the Demised
Premises. Tenant shall provide Landlord with certificates of all such insurance.
The property insurance certificate shall confirm that the waiver of subrogation
required to be obtained pursuant to Section 14.8 is permitted by the insurer.
Tenant shall, at least fifteen (15) days prior to the expiration of any policy
of insurance required to be maintained by Tenant under this Lease, furnish
Landlord with an "insurance binder" or other satisfactory evidence of renewal
thereof.
(b) All policies required to be carried by Tenant or Landlord
hereunder shall be issued by and binding upon an insurance company licensed to
do business in the State of Colorado with a rating of at least A-:VIII, as set
forth in the then most current issue of "Best's Insurance Reports." Neither
Landlord nor Tenant shall do or permit anything to be done that would invalidate
the insurance policies referred to in this Article XIV. Evidence of insurance
provided to Landlord by Tenant shall include an endorsement showing that
Landlord and its representatives are included as additional insureds on the
Tenant's general liability insurance required to be maintained by Tenant under
this Lease, and an endorsement whereby the insurer agrees not to cancel, non-
renew or reduce coverage of the policy without at least thirty (30) days prior
written notice to Landlord and its representatives.
(c) In the event that Tenant fails to provide evidence of
insurance required to be provided by it hereunder, prior to commencement of the
Term, and thereafter during the Term, within fifteen (15) days following receipt
of the Landlord's written request therefor, and fifteen (15) days prior to the
expiration date of any such coverage, the Landlord shall be authorized (but not
required) to procure such coverage in the amounts stated with all costs thereof
(plus a fifteen percent [15%] administrative fee) to be chargeable to the Tenant
and payable upon written invoice therefor. Tenant agrees to provide the Landlord
within fifteen (15) days after its request in writing with a certificate
evidencing the insurance required to be provided under this Lease.
(d) The limits of insurance required by this Lease, or as
carried by Landlord or Tenant, shall not limit the liability of the other nor
relieve either of any obligation hereunder.
14.6 Self-Insurance.
(a) Landlord. As long as Xxxxxxxx Oil Building Partnership
(including its constituent partners) is the Landlord under this Lease and
Landlord has and maintains a net worth (as determined by generally accepted
accounting principles, consistently applied) of at least One Hundred Million
Dollars ($100,000,000), Landlord shall be entitled to satisfy its insurance
requirements under this Article XIV pursuant to a program of self-insurance. Any
such self-insurance program at all times must satisfy
34
all of the requirements of this Article XIV, must contain all of the terms and
conditions of the policies Landlord is required to carry under this Lease,
including without limitation the amount of protection and a full waiver of
subrogation and must provide not less than the level of protection which would
be provided by an independent insurer with a "General Policyholder Rating" of at
lease A-VIII as set forth on the most recent "Best Insurance Guide." If Landlord
elects to so self-insure, it shall notify Tenant at least forty-five (45) days
before it intends for the self-insurance to begin and shall furnish with the
notice written evidence reasonably acceptable to Tenant that it then satisfies
the above net-worth requirement ("Evidence of Net Worth") and a copy of the
self-insurance program ("Self-Insurance Program"). When these requirements are
satisfied and the self-insurance election takes effect, and as long thereafter
as such net worth requirement is satisfied and the election remains in effect,
the Self-Insurance Program shall satisfy Landlord's insurance obligations under
this Section. Upon request (but not more often than once a year), Landlord shall
furnish Evidence of Net Worth to Tenant showing that it continues to satisfy the
above net worth requirement. If Landlord elects and is entitled to so self-
insure, then with respect to any claims which may arise or result from incidents
occurring during the Lease Term, such self-insurance obligations shall survive
the expiration or earlier termination of this Lease to the same extent as the
required independent insurance would survive. If after becoming self-insured,
the Landlord wants to terminate the Self-Insurance Program, or if it no longer
satisfies the requirements of this Section, or if it fails to provide the
required Evidence of Net Worth, it shall promptly notify Tenant and comply with
the requirements of this Section. This option to self-insure shall not apply to
an assignee or successor of Landlord unless it satisfies all the requirements of
this Section.
(b) Tenant. As long as Tenant (including its successors and
assigns) is the Tenant under this Lease and Tenant has and maintains a net worth
(as determined by generally accepted accounting principles, consistently
applied) of at least One Hundred Million Dollars ($100,000,000), Tenant shall be
entitled to satisfy its insurance requirements under this Article XIV pursuant
to a program of self-insurance. Any such self-insurance program at all times
must satisfy all of the requirements of this Article XIV, must contain all of
the terms and conditions of the policies Tenant is required to carry under this
Lease, including without limitation the amount of protection and a full waiver
of subrogation and must provide not less than the level of protection which
would be provided by an independent insurer with a "General Policyholder Rating"
of at lease A-VIII as set forth on the most recent "Best Insurance Guide." If
Tenant elects to so self-insure, it shall notify Landlord at least forty-five
(45) days before it intends for the self-insurance to begin and shall furnish
with the notice written evidence reasonably acceptable to Landlord that it then
satisfies the above net-worth requirement ("Evidence of Net Worth") and a copy
of the self-insurance program ("Self-Insurance Program"). When these
requirements are satisfied and the self-insurance election takes effect, and as
long thereafter as such net worth requirement is satisfied and the election
remains in effect, the Self-Insurance Program shall satisfy Tenant's insurance
obligations under this Article XIV. Upon request (but not more often than once a
year), Tenant shall
35
furnish Evidence of Net Worth to Landlord showing that it continues to satisfy
the above net worth requirement. If Tenant elects and is entitled to so self-
insure, then with respect to any claims which may arise or result from incidents
occurring during the Lease Term, such self-insurance obligations shall survive
the expiration or earlier termination of this Lease to the same extent as the
required independent insurance would survive. If after becoming self-insured,
the Tenant wants to terminate the Self-Insurance Program, or if it no longer
satisfies the requirements of this Article XIV, or if it fails to provide the
require Evidence of Net Worth, it shall promptly notify Landlord and comply with
the requirements of this Article XIV. This option to self-insure shall not apply
to an assignee or successor of Tenant unless it satisfies all the requirements
of this Section.
14.7 Indemnity and Exoneration.
(a) Except as otherwise provided in this Lease, Landlord shall
not be liable for any loss, injury or damage to person or property of Tenant,
Tenant's agents, employees, contractors, invitees or any other person occurring
in or about the Demised Premises unless caused by the negligence or willful
misconduct of Landlord or its employees, agents or contractors, or Landlord's
violation of this Lease, whether caused by theft, fire, act of God, acts of the
public enemy, riot, strike, insurrection, war, court order, requisition or order
of governmental body or authority or which may arise through repair or
alteration of any part of the Demised Premises or failure to make any such
repair except as expressly otherwise provided in Articles XV and XVII. Landlord
shall not be liable for any loss, injury or damage arising from any act or
omission of any other tenant or occupant of the Building, nor shall Landlord be
liable under any circumstances for damage or inconvenience to Tenant's business
or for any loss of income or profit therefrom (other than the negligence or
willful misconduct of Landlord, its employees, agents or contractors or
Landlord's violation of this Lease or as otherwise provided in this Lease).
(b) Tenant shall indemnify, protect, defend and hold the
Landlord and its representatives, harmless of and from any and all claims,
liability, losses, costs, damages, injury or expenses (including reasonable
costs, expenses and attorneys fees) arising out of or in any way related to or
resulting from the Tenant's use or occupancy of the Demised Premises, the
actions of Tenant, its agents, employees, or contractors in or about the Demised
Premises or their negligence in the Common Areas of the Building and any default
or breach by Tenant in the performance of any obligation of Tenant under this
Lease; provided, however, that the foregoing indemnity shall not be applicable
to claims arising as the result of the negligence or willful misconduct of
Landlord, or its representatives or to the extent the same is to be covered by
insurance to be maintained by Landlord under this Lease or to the extent the
same is caused by the Landlord's violation of this Lease.
36
(c) Tenant shall indemnify, protect, defend and hold the
Landlord and its representatives, harmless of and from any and all claims,
liability, losses, costs, damages, injury or expenses (including costs, expenses
and attorneys' fees) arising out of or in any way related to or resulting from
work or labor performed, materials or supplies furnished to or at the request of
Tenant or in connection with obligations incurred by or performance of any work
done for the account of Tenant in the Demised Premises.
14.8 Waiver of Subrogation. Anything in this Lease to the contrary
notwithstanding, Landlord and Tenant each waives all rights of recovery, claim,
action or cause of action against the other, its agents (including partners,
both general and limited), trustees, officers, directors, and employees, for any
loss or damage that may occur to the Demised Premises, or any improvements
thereto, or the Building or any personal property of such party therein, by
reason of any cause required to be insured against under this Lease, regardless
of cause or origin, including negligence of the other party hereto; and each
party covenants that, to the fullest extent permitted by law, no insurer shall
hold any right to subrogation against such other party with respect to any
property insurance carried under this Lease or with respect to the Building.
Landlord and Tenant shall advise their respective insurers of the foregoing and
such waivers shall be permitted under any property insurance policy maintained
by Landlord and Tenant.
ARTICLE XV
----------
DAMAGE BY FIRE OR OTHER CASUALTY
15.1 Anything in this Lease to the contrary notwithstanding, if the
Demised Premises or the Building should be partially or totally damaged or
destroyed by fire or other casualty insurable under a standard form policy of
fire and extended coverage insurance (including vandalism and malicious
mischief) or by insurance carried or required to be carried by Landlord then, if
this Lease shall not have been canceled in accordance with the provisions
hereinafter made in this Article XV, Landlord will, with reasonable dispatch
after notice to it of the damage or destruction, repair the damage, and replace,
restore, and rebuild the Demised Premises and the Building at its sole cost and
expense. Landlord will commence and diligently pursue such repair, replacement,
restoration, or rebuilding within ninety (90) days after the occurrence provided
that it has knowledge of the damage or destruction. As used herein, the term
"commence such repair" shall include Landlord's act in contacting architects,
engineers and others to begin the planning process for the repair. Landlord
shall not be required by this Section to repair, replace, restore, or rebuild
any property which Tenant shall, under the provisions of Article VIII above, be
entitled to remove from the Demised Premises, it being agreed that Tenant shall
bear the entire risk of loss, damage, or destruction of such property while it
is on the Demised Premises.
15.2 If the Building or the Demised Premises shall be partially
damaged or partially destroyed, the rent payable under this Lease shall, to the
extent that the
37
Demised Premises shall have been rendered unfit for use for Tenant's business
purposes, be abated for the period from the date of such damage or destruction
to the date that such damage or destruction shall be repaired or restored. If
the Demised Premises or a major portion thereof shall be totally or
substantially damaged or destroyed, or rendered completely or substantially
unfit for use for Tenant's business purposes because of fire or other casualty
as provided in Section 15.1, the entire rent shall, as of the date of the damage
or destruction, xxxxx until Landlord shall repair, restore, replace, and rebuild
the Building and the Demised Premises; provided, however, that should Tenant
reoccupy a portion of the Demised Premises while the restoration work is taking
place and prior to the date that the entire Demised Premises are again made fit
for use for Tenant's business purposes, rent shall be apportioned and become
payable by Tenant in proportion to the part of the Demised Premises occupied by
it for the purpose of conducting its business, effective on the date that the
Tenant shall again begin conducting its ordinary business from the Demised
Premises or any portion thereof.
15.3 In the event that it appears from an estimate prepared by
Landlord's contractor that the required repairs, replacement, restoration, and
rebuilding cannot be accomplished within two hundred seventy (270) days from the
date of the damage or destruction, or that it appears improbable to Tenant that,
because of causes beyond Landlord's reasonable control, Landlord will not
complete the repairs and restoration within two hundred seventy (270) days from
the date of the casualty, Landlord and Tenant may each elect to terminate this
Lease. Tenant's election to terminate under this Section 15.3 shall only be
effective if Tenant has not previously notified Landlord under Section 15.1 to
commence repair or reconstruction and Landlord receives Tenant's written notice
of election to terminate within the later to occur of (i) ninety (90) days of
the date of damage or destruction; or (ii) forty-five (45) days after receipt by
Tenant of the contractor's estimate referred to above. Anything in this Lease to
the contrary notwithstanding, if Landlord has not completed within one (1) year
from the date of casualty all repairs, replacements, restoration, and rebuilding
required of Landlord under Section 15.1 above, Tenant may, at its option, cancel
this Lease by written notice to Landlord; provided, however, that said one (1)
year period shall be extended by the number of days (not to exceed 90 days) lost
in actual rebuilding as the result of labor strikes, acts of God, or other non-
monetary causes beyond the reasonable control of Landlord. If the Lease is not
terminated pursuant to the provisions of this Section 15.3, Landlord shall use
its reasonable efforts to rebuild and restore the Building and the Demised
Premises (including Tenant improvements substantially in accordance with the
plans and specifications for the initial tenant improvements to the extent the
Landlord is required to rebuild and restore) or such portion as may be destroyed
or damaged to a condition reasonably comparable to the condition existing
immediately prior to such damage, using materials and workmanship comparable in
quality to those incorporated into the Building and the Demised Premises before
the occurrence. Tenant shall have the right to review and approve (not to be
unreasonably withheld, delayed or conditioned) the plans and specifications for
any such repair work for the Demised
38
Premises or any Common Areas used by Tenant on floors on which the Demised
Premises are located. During such repair or restoration, Landlord and Tenant
shall cooperate in good faith so as to allow Tenant access to the Demised
Premises as promptly as possible in order to facilitate the installation by
Tenant of any furniture, fixtures, wiring, etc.
15.4 In the event that the damage to the Building shall render
untenantable in excess of fifty percent (50%) of the Rentable Area of Building,
Landlord may, as soon as reasonably practicable and not more than ninety (90)
days of the casualty, by notice given to Tenant, elect not to repair or rebuild
the Building and this Lease shall thereupon terminate effective as of the date
of casualty. After receipt of such notice, Tenant shall vacate the Demised
Premises as quickly as is reasonably possible; provided, however, that Tenant
shall be entitled to occupy the Demised Premises or any part thereof without
liability to Landlord for as long as is reasonably necessary to salvage or
remove therefrom its personal property as provided in Article VIII above.
15.5 No damages, compensation, or claims shall be payable by Landlord
for inconvenience, loss of business, or annoyance arising from any repair or
restoration of any portion of the Demised Premises or of the Building required
to be made by Landlord under the provisions of this Article XV, but this Section
shall not be construed to limit the abatement of Tenant's rent in accordance
with Section 15.2 above. Landlord covenants with Tenant that it shall use its
best efforts to effect all such repairs promptly and in such manner as not
unreasonably to interfere with Tenant's occupancy if Tenant shall not have
vacated the Demised Premises or the portion thereof to be repaired because the
same shall have become untenantable.
ARTICLE XVI
-----------
BANKRUPTCY; REMEDIES
16.1 If at any time prior to the Commencement Date or during the Term
of this Lease, Tenant files in any court pursuant to any statute either of the
United States or of any state a Petition in Bankruptcy or Insolvency or for
reorganization or for the appointment of a receiver or trustee of all or a
portion of Tenant's property, or Tenant makes an assignment for the general
benefit of creditors (other than an assignment or corporate action referred to
in Section 7.1) which is not dismissed within ninety (90) days, this Lease shall
ipso facto be canceled and terminated and in such event neither Tenant nor any
person claiming through or under Tenant by virtue of any statute or any order of
any court shall be entitled to possession of the Demised Premises, and Landlord,
in addition to any other rights and remedies given by Section 16.3 and by virtue
of any other provision in this Lease or by virtue of any statute or rule of law,
may retain as liquidated damages any rent, security deposit, or monies received
by Landlord from Tenant or others on behalf of Tenant prior to Tenant's action
described above.
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16.2 In the event that at any time mentioned in Section 16.1 above, an
involuntary insolvency, bankruptcy, or reorganization proceeding shall be
instituted against Tenant, Tenant shall have one hundred sixty (160) days in
which to cause said proceeding to be vacated or dismissed after it receives
notice thereof. In the event Tenant fails to cause such proceeding to be vacated
or dismissed within such period of time after expiration of said 160-day period,
this Lease may be terminated by Landlord in which event neither Tenant nor any
person claiming through or under Tenant by virtue of any statute or any order of
any court shall be entitled to possession or to remain in possession of the
Demised Premises, but shall forthwith quit and surrender the Demised Premises,
and Landlord, in addition to the other rights and remedies given by Section 16.3
and by virtue of any other provision in this Lease or by virtue of any statute
or rule of law, may retain as liquidated damages any rent, security deposit, or
monies received by Landlord from Tenant or others on behalf of Tenant prior to
Tenant's action described above.
16.3 It is stipulated and agreed that in the event of the termination
of this Lease pursuant to Section 16.1 or 16.2 hereof, Landlord shall forthwith,
notwithstanding any other provisions of this Lease to the contrary, be entitled
to recover to the extent allowed by the Bankruptcy Court from Tenant as and for
liquidated damages an amount equal to the difference between the rent reserved
hereunder for the unexpired portion of the Term of this Lease and the rental
value of the Demised Premises at the time of termination (if lower than the rent
reserved) for the unexpired portion of the Term of this Lease, both discounted
at the then published rate of the 11th District Cost of Funds Index to present
worth. Nothing herein contained shall limit or prejudice the right of Landlord
to prove or obtain to the maximum allowed by any statute or rule of law in
effect at the time when, and governing the proceedings in which such damages are
to be proved, whether or not such amount be greater, equal to, or less than the
amount of the difference referred to above.
ARTICLE XVII
------------
CONDEMNATION
17.1 In the event of a total condemnation, this Lease and the Term and
estate hereby granted shall forthwith cease and terminate as of the date of
taking of possession for such use of purpose.
17.2 In the event that less than the whole or substantially the whole
of the Building or of the Demised Premises is condemned or taken as set forth in
Section 17.1 above, then this Lease shall remain in force and in effect;
provided, however, that if the taking shall so substantially interfere with the
Tenant's use of the Demised Premises as to render the continued operation
thereof economically unfeasible as reasonably determined by Landlord and Tenant,
then Landlord (whether or not the Demised Premises be affected) or Tenant may,
at their option, terminate this Lease and the Term
40
and estate hereby granted as of the date of taking of possession for such use
and purchase by notifying the other in writing of such termination.
17.3 In the event that less than the whole or substantially the whole
of the Building or the Demised Premises be so condemned or taken, if the space
so taken is such that the area of the Demised Premises remaining after the
condemnation is such as to render continued operation of the Demised Premises
economically unfeasible as reasonably determined by Tenant, then Tenant may, at
its option, terminate the Lease and the Term and estate hereby granted as of the
day of the taking of possession for such use or purposes by notifying Landlord
in writing of such termination.
17.4 Upon any such taking or condemnation and the continuing in force
of this Lease as to any part of the Demised Premises, all rental shall be
diminished by an amount representing the part of the said rent properly
allocable to the portion of the Demised Premises which may be so condemned or
taken, and Landlord shall, at its expense, proceed with reasonable diligence to
repair, alter, and restore the remaining part of the Building and the Demised
Premises to substantially its former condition, due allowances being made for
the impact of such taking or condemnation.
17.5 Landlord shall be entitled to receive the entire award in any
condemnation proceeding, including any award for the value of any unexpired Term
of this Lease, and Tenant shall have no claim against Landlord or against the
proceeds of the condemnation. Nothing in this Lease shall be deemed or
construed to prevent Tenant from making a claim against the condemning authority
for relocation costs and for the value of or damages to any of Tenant's property
as described in Article VIII above, and for such business damages and/or
consequential damages as may be allowed Tenant by law at the time of the
condemnation. In the event the Landlord receives notice of any such
condemnation or intent to do so, the Landlord shall give Tenant prompt notice of
it and the nature of the taking.
17.6 Anything in this Article XVII to the contrary notwithstanding, if
the temporary use or occupancy of all or any part of the Demised Premises shall
be condemned or taken for five (5) or more days for any public or quasi-public
use by a public authority during the Term of this Lease, this Lease shall be and
remain unaffected by such condemnation or taking, and Tenant shall continue to
pay in full the rent, additional rent, and other sums payable hereunder by
Tenant, and Tenant shall have the right to appear, claim, prove, and receive so
much of the award for such taking as represents compensation for use and
occupancy of the Demised Premises up to and including the date of expiration of
the Term of this Lease or the date of termination of the temporary taking,
whichever is earlier, and Landlord shall be entitled to appear, claim, prove,
and receive the entire balance of the award. Each party shall cooperate fully
with the other in efforts to obtain any such award, and each claimant shall
indemnify and hold harmless the other party to the extent of expenses incurred
as a result of such cooperation.
41
ARTICLE XVIII
-------------
ELECTRICITY
18.1 Landlord shall furnish to the Demised Premises electricity during
Normal Business Hours for electrical outlets (120/208 volt three-phase) in an
amount equal to but not in excess of three (3) xxxxx of NEC calculated load per
square foot of rentable area within the leased Premises and for ceiling lighting
(277/480 volt three-phase) in an amount equal to but not in excess of two (2)
xxxxx of NEC calculated load per square foot of rentable area within the Demised
Premises. The cost of any electrical service consumed in the Demised Premises
(i) other than Normal Business Hours, and (ii) during Normal Business Hours but
exceeding .29 KWH per square foot of the Demised Premises per week (based upon
60 hours of operation per week) during each Public Service Company billing cycle
and 265 KW of peak energy demand during each Public Service Company billing
cycle shall be considered Excess Electricity and shall be paid pursuant to
Section 18.2 hereof; provided, however, that the Tenant shall receive a credit
on its Excess Electricity charges, if any, equal to the electricity cost for the
ceiling lighting in the Demised Premises for the period of time during which the
Demised Premises are being cleaned by the Building janitors. Nothing herein
shall be deemed to create any obligation of Landlord to provide electrical
equipment in excess of that provided pursuant to Landlord's Work or as expressly
set forth in this Article XVIII.
18.2 All of Tenant's electricity consumption within the Demised
Premises shall be separately metered to determine Tenant's total demand and
energy usage. Tenant shall pay Landlord for such Excess Electricity at
Landlord's cost for the corresponding month for the same per kilowatt hour (KWH)
and demand charge per KW without markup other than for Landlord's customary
administrative cost. Tenant's total electricity consumption shall be determined
by the Tenant's installation of permanent KWH and KW/demand meters (including
transmitters, wiring and hardware and software in order to connect Tenant's
meters to Landlord's energy management system) and billed at the same rate
including all energy cost, adjustments on all energy usage. Tenant shall pay
Landlord within twenty (20) days of receipt of Landlord's invoice for Tenant's
Excess Electricity consumption, including all applicable taxes that the Public
Service Company billed the Landlord for the same. Said invoices shall be deemed
to be and be paid as additional rent.
18.3 Landlord shall furnish electric current, fixtures, bulbs and
equipment for the lighting of the Demised Premises (to the extent it is building
standard) and to the Building lobbies, public corridors, public restrooms,
public elevator lobbies and other public portions of the Building, and shall
furnish electric current for the Building air-conditioning machinery, elevators,
escalators, and other Building equipment.
18.4 Landlord shall furnish Building standard lamps, bulbs, starters,
and ballasts used in the Demised Premises, and if installed by Landlord, Tenant
agrees to pay Landlord for the reasonable cost, expense, and installation of
non-building standard lamps, bulbs, starters and ballasts.
42
18.5 Landlord shall not be liable or responsible to Tenant for any
loss or damage or expense which Tenant may sustain or incur without the fault of
Landlord if either the quantity or character of electric service is changed or
is no longer available or is no longer suitable for Tenant's requirements.
18.6 Tenant covenants and agrees that at all times its use of electric
current shall never exceed five (5) xxxxx per rentable square foot or Tenant's
proportionate share of the capacity of existing feeders to the Building or the
risers or wiring installation without review and approval by Landlord. Any
riser or risers or wiring to meet Tenant's excess electrical requirements upon
written request of Tenant, will be installed by Landlord (at the sole cost and
expense of Tenant) if, in Landlord's sole judgment, the same are necessary and
will not cause permanent damage or injury to the Building or Demised Premises or
cause or create a dangerous or hazardous condition or entail excessive or
unreasonable alterations, repairs or expenses, or interfere with or disturb
other tenants or occupants. Landlord represents that it has determined from a
review of Tenant's Space Plans dated February 13, 1997, that Tenant's initial
use of the Demised Premises and the electrical usage permitted to Tenant under
Section 18.1 will not result in a violation of this Section 18.6.
18.7 Tenant shall make no alteration or additions to the electric
equipment or installations without the prior written consent of Landlord in each
instance, and work shall be done by Landlord at Tenant's expense in accordance
with plans and specifications of Tenant to be submitted and approved by
Landlord.
ARTICLE XIX
-----------
ENTRY
19.1 Subject to the requirements of Sections 19.2 and 19.3, Tenant
shall permit Landlord to erect, use, and maintain plumbing and electrical pipes,
conduits, and wires, and heating, ventilating, and air-conditioning ducts as
required in and through the Demised Premises; provided that the same are
installed and concealed behind the walls or ceiling of the Demised Premises, and
that installation is accomplished at such times and by such methods as will not
unreasonably interfere with the Tenant's use of the Demised Premises or damage
the appearance thereof.
19.2 Landlord or its agents or designees shall have the right to enter
the Demised Premises upon reasonable notice to Tenant and in a manner which will
not unreasonably interfere with Tenant's operation of its business in the
Demised Premises and presentation of adequate identification for the purpose of
making such repairs or alterations to such pipes, conduits, wires, or ducts as
may be required for the proper maintenance or operation of the Building;
provided that in each case such entry is made in a manner and at a time that
will result in the least interference with Tenant's use of the Demised Premises
and cause the least amount of damage to the appearance thereof, and provided
further that any such entry shall be subject to any requirements
43
that Tenant deems it necessary to impose in order to protect the security of any
controlled-access area of the Demised Premises. The foregoing shall not be
construed to require Landlord to perform work on any pipes, conduits, wires, or
ducts in the Demised Premises at overtime rates unless Landlord's work within
the Demised Premises would unreasonably interfere with Tenant's day to day
conduct of its business therein.
19.3 Subject to Tenant's right to limit, for security and other
reasonable purposes, the quantity or identity of any material brought into or
upon the Demised Premises, Landlord shall be allowed, so long as it does not
unreasonably interfere with the operation of Tenant's business in the Demised
Premises, to take all material into and upon the Demised Premises that may be
required for the repairs or alterations described in Section 19.2 without the
same constituting an eviction of Tenant in whole or in part, and while said
repairs and alterations are being made the rent reserved shall not (except as
otherwise provided in this Lease) xxxxx by reason of loss of or interruption of
the business of Tenant or because of the prosecution of any such work; provided,
however, that in making any such repairs or alterations, Landlord diligently
proceeds in such manner as to cause the least possible interference with
Tenant's use and enjoyment of the Demised Premises.
19.4 Subject to reasonable notice to Tenant and to such additional
security precautions as Tenant may deem necessary to impose, so long as it does
not unreasonably interfere with the operation of Tenant's business in the
Demised Premises, Landlord shall have the right to enter the Demised Premises
for the purpose of inspecting them for general condition and state of repair or
exhibiting them to prospective purchasers or lessees of the entire Land or
Building, or to prospective mortgagees of the Land or Building, of which the
Demised Premises are a part, or to prospective assignees of any such mortgagees.
The holder of any mortgage of the Landlord's interest in the property, its
agents or designees shall have the same right of entry for inspection as
Landlord.
19.5 During the three (3) months prior to the expiration of the Term
of this Lease, after reasonable notice and so long as it does not unreasonably
interfere with the operation of Tenant's business in the Demised Premises,
Landlord may exhibit the Demised Premises to prospective tenants. Tenant may
impose reasonable restrictions on this right for the purpose of maintaining the
security of any controlled-access areas in the Demised Premises.
19.6 If by virtue of any such work, the Demised Premises (or any
portion of it) becomes unusable by Tenant for Tenant's normal business purposes,
for more than five (5) consecutive business days (unless caused or requested by
Tenant or a governmental authority without Landlord's fault), Tenant shall be
afforded an abatement of rent, calculated in the manner described in Section
22.4, during the entire period of such interruption in Tenant's use of the
Demised Premises (or such portion of the
44
Demised Premises). Except in the case of an emergency Tenant shall have the
right to require that Landlord be accompanied by a representative of Tenant
during any such entry, as long as a representative will be available for this
purpose on a timely basis.
ARTICLE XX
----------
RIGHT TO CHANGE PUBLIC PORTIONS OF THE BUILDING
20.1 At any time after the completion of the Building, Landlord shall
have the right to change the arrangement or location of such of the following as
are not contained within the Demised Premises or any part thereof: entrances,
signs, passageways, doors and doorways, corridors, stairs, toilets and other
like public service portions of the Building; providing, however, that in no
event shall Landlord change the arrangement or location of the elevators serving
the Demised Premises, make any change which shall diminish the area of the
Demised Premises, make any change which shall materially interfere with the
Tenant's access to or use of the Demised Premises from and through the Building,
or change the character of the Building from that of a first-class office
building.
ARTICLE XXI
-----------
LANDLORD'S AND TENANT'S RIGHT TO PERFORM
21.1 If Tenant shall after notice as required in this Lease fail to
cure default in the observance or performance of any term or covenant on its
part to be observed or performed under or by virtue of any of the terms or
provisions in any article of this Lease, Landlord, without being under any
obligation to do so and without thereby waiving such default, may remedy such
default for the account and at the expense of Tenant, immediately and without
notice in case of emergency, or in any other case only provided that Tenant
shall fail to remedy such default with all reasonable dispatch after Landlord
shall have notified Tenant in writing of such default. If Landlord makes any
reasonable expenditures or incurs any obligations for the payment of money in
connection therewith including, but not limited to, attorney's fees in
instituting, prosecuting, or defending any action or proceeding, such sums paid
or obligations incurred, with interest and costs, shall be paid to it by Tenant.
ARTICLE XXII
------------
SERVICES, FACILITIES AND EQUIPMENT
22.1 In addition to the other services and utilities Landlord agrees
to provide under this Lease, Landlord agrees that it shall:
a. Furnish heating, ventilating and air-conditioning daily from
7:00 a.m. to 6:00 p.m.; Saturdays from 8:00 a.m. to 1:00
p.m.; Sundays and Holidays excepted; provided, that Tenant
may have
45
after hours usage by prior arrangement with Landlord and
subject to Landlord's need to periodically interrupt
services and utilities for repair and maintenance.
b. Provide passenger elevator service (which may be
operatorless at Landlord's option) in common with others
daily from 7:00 a.m. to 6:00 p.m.; Saturdays, 8:00 a.m. to
1:00 p.m.; Sundays and Holidays excepted, and Landlord shall
use its reasonable efforts to have an elevator for Tenant's
use subject to call at all times when normal passenger
service is not furnished. Provide freight elevator service
in common with others daily from 8:00 a.m. to 6:00 p.m.,
Saturdays, Sundays and Holidays excepted.
22.2 Landlord shall, with respect to the entire Demised Premises:
a. Whenever heat-generating machines or equipment are used in
the Demised Premises which materially and adversely affect
the temperature outside the Demised Premises (provided that
Tenant takes responsibility for the heat effecting its
Demised Premises) otherwise maintained by the air-
conditioning system, Landlord reserves the right, at its
option and after having given Tenant written notice thereof
and a reasonable time within which to cure the problem,
either to require Tenant to discontinue use of such heat-
generating machines or equipment or to install supplementary
air-conditioning equipment in the Demised Premises, and the
cost of such installation shall be paid by Tenant to
Landlord promptly on being billed therefor, and the cost of
operation and maintenance of said supplementary equipment
shall be paid by Tenant to Landlord on the monthly rent
payment dates at such rates as may be agreed upon, but in no
event at the rate less than Landlord's actual cost therefor
of labor, all utilities and other inherent costs.
b. Provide hot water at standard building temperatures and cold
water for drinking, lavatory and toilet purposes, and the
existing kitchen and shower, drawn through fixtures
installed by Landlord. If Tenant requires, uses or consumes
water for any other purpose, Tenant agrees, after written
notice from Landlord, to Landlord's installing a meter or
meters and to pay for the installation and maintenance of
said meter equipment. Tenant shall reimburse Landlord for
the cost of all excess water consumed, as measured by said
meter or meters.
46
c. Keep the Building and the adjoining plazas, sidewalks,
curbs, driveways, and entrance and public areas clean and in
good condition, free of accumulation of dirt and rubbish
and, as necessary, remove snow and ice therefrom.
d. Provide janitor and cleaning service on business days in and
about the Demised Premises, and in all public portions of
the Building, which services, without limitation, shall be
at least equal to those then being rendered in other
comparable non-institutional first-class office buildings
located in Denver, Colorado.
e. Should Tenant require special cleaning service, heating,
ventilating or air-conditioning services in addition to
those Landlord is required by this Lease to provide without
a special charge to Tenant, Landlord shall, (upon reasonably
advance notice by Tenant and to the extent, where
applicable, such services are available without overloading
facilities in the Building providing such services) furnish
such additional service, and Tenant agrees to pay to
Landlord with the next installment of rent after being
billed therefor as additional rent, Landlord's cost of
labor, materials, utilities and other inherent costs. It is
agreed that such costs shall not be included in the
definition of Operating Expenses.
f. Landlord does not warrant that any of the services referred
to above or any other services which Landlord may supply
will be free from interruption. Tenant acknowledges that any
one or more such services may be suspended by reason of
causes beyond the reasonable control of Landlord and any
such interruption of service shall never be deemed an
eviction or disturbance of Tenant's use and possession of
the Demised Premises or any part thereof or render Landlord
liable to Tenant for damage by abatement of rent or
otherwise, or relieve Tenant from performance of Tenant's
obligations under this Lease. Landlord agrees to use
reasonable care and exercise due diligence with respect to
avoiding interruption of the services above provided for
and, if interrupted, agrees that it will be for as short a
period as possible, and all repairs will be promptly and
diligently made at such times as will not unduly interfere
with the occupancy and use of the Demised Premises by
Tenant.
22.3 Tenant shall reimburse Landlord for the Landlord's cost of
removal from the Demised Premises and the Building of so much of any refuse and
rubbish of Tenant
47
as shall exceed that ordinarily accumulated in the routine of Tenant's permitted
use of the Demised Premises. Should Tenant create wet trash, Tenant shall
reimburse Landlord for Landlord's cost of removal.
22.4 Notwithstanding the foregoing, if any failure to provide any
utilities or Building Services required of Landlord under this Lease is due to
the fault of or within the reasonable control of Landlord and such failure shall
continue for five (5) consecutive business days or more, and provided such
failure to provide the required utilities and Building Services reasonably
causes Tenant not to occupy all or any portion of the Demised Premises then
occupied by Tenant for the conduct of its business operations, then rent shall
be abated hereunder at the rate of one day's rent for each day thereafter of
such interruption and Tenant's inability to occupy; provided, that in the event
Tenant can or does occupy some, but not all of the Demised Premises for that
reason during such interruption, the abatement afforded Tenant shall be a
proportion of daily rent equal to a fraction, the denominator of which is the
rentable area of the Demised Premises and the numerator of which is the rentable
area of the portion of the Demised Premises that cannot be or is not reasonably
occupied by Tenant during such interruption for that reason. If any failure to
provide utilities or Building Services required hereunder is not within
Landlord's control (e.g., force majeure delay) and is covered under Landlord's
rental interruption insurance, and if any such failure continues for seven (7)
consecutive business days and such failure causes Tenant not to occupy all or
any portion of the Demised Premises, then rent shall be abated for the entire
period of such interruption in the manner set forth above until such services
are restored.
ARTICLE XXIII
-------------
SIGNS AND GLASS
23.1 Except as provided in Section 23.4, Tenant shall not install any
sign or advertising or publicity device in any public area, on any roof, on any
window, or on any outside portion of the Building. Tenant may install an
identification sign within or adjacent to the entrance of the Demised Premises
providing that any sign on a floor on which Tenant does not lease the full floor
shall be subject to the prior written approval of Landlord and shall conform to
the graphic standards of the Building.
23.2 Tenant shall replace, at its expense, any and all broken interior
glass, including plate glass partitions and doors, in the Demised Premises
unless caused by Landlord, its employees, agents or contractors.
23.3 Landlord shall maintain in the lobby of the Building, a directory
board which shall include the names of the Tenant and any other names reasonably
requested by Tenant in proportion to the number of listings given to other
tenants of the Building.
48
ARTICLE XXIV
------------
PRIME LEASE AND SUBORDINATION
24.1 The leasehold estate created by this Lease constitutes a sublease
of a portion of the premises demised to Landlord, as Lessee, by instruments
dated and recorded in the lease records of Denver County, Denver, Colorado, as
follows: instrument dated September 6, 1982, filed in Lease Record volume 2666,
----------------- ----
Page 550 on October 5, 1982. Such instrument shall be referred to under this
--- ---------------
Lease as the "Prime Lease." This Lease and all of Tenant's rights hereunder are
and shall be subject and subordinate to the Prime Lease, the rights of all
parties under the Prime Lease. In confirmation of such subordination and subject
to Tenant's approval as to form (which approval shall not be unreasonably
withheld), Tenant shall execute and deliver promptly a subordination certificate
that Landlord or its successors in interest may request. Landlord agrees within
forty-five (45) days after the execution of this Lease, it shall obtain for
Tenant's benefit a nondisturbance agreement and estoppel certificate from the
Prime Lease Lessor in a form reasonably acceptable to Tenant and the Prime Lease
Lessor.
24.2 Landlord agrees that it shall refrain from doing any act or
failing to do any act (including without limitation failure to exercise
Landlord's rights of renewal as Lessee under the Prime Lease) which action or
non-action would cause the Prime Lease to be terminated or to expire prior to
the Term of this Lease, including all renewals hereof, if any, while the same
may be exercised by Tenant. Landlord covenants that it will save, indemnify and
hold harmless Tenant from any disturbance of Tenant's possession of the Demised
Premises in accordance with the terms and conditions of this Lease as a result
of termination or expiration of the Prime Lease or foreclosure of any mortgage
to which this lease is subordinate, except to the extent that such termination,
expiration, or foreclosure shall be attributable directly to the default of
Tenant under any of the covenants of this Lease.
24.3 This Lease and all rights of Tenant hereunder are subject and
subordinate to any mortgage or mortgages, blanket or otherwise, which do now or
may hereafter affect the real property of which the Demised Premises form a part
and to any and all renewals, modifications, consolidations, replacements and
extensions thereof. It is the intention of the parties that this provision be
self-operative and that no further instrument shall be required to effect such
subordination of this Lease other than a nondisturbance agreement signed by each
mortgagee which is reasonably acceptable to Tenant (which shall be a condition
of any written subordination). Landlord agrees that within forty-five (45) days
after the execution of this Lease, it shall obtain for Tenant's benefit a
nondisturbance agreement from the holder of the deed of trust on the Building in
a form reasonably acceptable to Tenant and the holder of the deed of trust.
Tenant shall, however, upon demand at any time or times execute, acknowledge,
and deliver to Landlord without expense to Landlord, instruments reasonably
acceptable to Tenant that may be necessary or proper to subordinate this Lease
and all rights of Tenant
49
hereunder to any such mortgage or mortgages or to confirm or evidence said
subordination. Tenant covenants and agrees, in the event any proceedings are
brought for the foreclosure of any such mortgage, to attorn to the purchaser
upon any such foreclosure sale, if so requested to by such purchaser at any
time, and to recognize such purchaser as the lessor under this Lease, subject to
the performance of Landlord's obligations under this Lease after the date of
such sale and the provisions of the nondisturbance agreement. Tenant agrees to
execute and deliver at any time and from time to time, upon the request of
Landlord or of any holder such mortgage or for such purchaser, any instrument
which, in the reasonable judgment of such requesting party, may be necessary or
appropriate in any such foreclosure proceeding or otherwise to evidence such
attornment. Tenant further waives the provisions of any statute or rule of law,
now or hereafter in effect, which may give or purport to give Tenant any right
or election to terminate or otherwise adversely affect this Lease and the
obligation of Tenant hereunder in the event any such proceeding is brought,
prosecuted or completed, as long as the new owner performs the Landlord's
obligations under this Lease from and after the date it acquires the Building.
24.4 Anything in this Article XXIV to the contrary notwithstanding, if
the Prime Lease shall be terminated by reason of default by Landlord thereunder
and subject to Tenant's receipt of a nondisturbance agreement from the Prime
Lease Lessor in a form reasonably satisfactory to Tenant, Tenant shall attorn to
the lessor under the Prime Lease (the "Lessor") and shall recognize the Lessor
under the Prime Lease as Tenant's Landlord under this Lease. Tenant shall, upon
request of the Lessor, execute and deliver any instrument reasonably requested
by the Lessor to evidence such attornment, and Tenant waives any right which it
may have by law to terminate this Lease or to surrender possession of the
Demised Premises upon termination of the Prime Lease or upon institution of
proceedings by the Lessor to terminate the Prime Lease.
ARTICLE XXV
-----------
LANDLORD'S TITLE
25.1 Landlord represents that the Land upon which the Building is
erected is owned by the Prime Lease Lessor, and leased to Landlord under the
terms of the Prime Lease, which Landlord warrants is valid and in full force and
effect in accordance with its terms. Landlord shall use its reasonable efforts
to obtain for Tenant's benefit a nondisturbance agreement from the Prime Lease
Lessor.
50
ARTICLE XXVI
------------
RIGHTS OF HOLDER OF LEASEHOLD MORTGAGE IN THE
EVENT OF DEFAULT BY LANDLORD
26.1 In the event of any default by act or omission by Landlord which
would give Tenant the right to terminate this Lease or to claim a partial or
total eviction, Tenant shall not exercise any such right until it has notified
in writing the holder of any mortgage which at the time shall be a first
mortgage lien on the Land or the Building (if the name and address of such
holder shall previously have been furnished by written notice to Tenant) of such
default, and until a reasonable period (not to exceed 60 days from the date the
mortgagee receives the notice) for curing default shall have elapsed following
the giving of such notice, during which period the holder shall have failed to
commence and diligently continued to cure such default or to cause the same to
be remedied or cured. During the period between the giving of such notice and
the curing of such default, the Annual Base Rent reserved under Article V, as
the same may be adjusted pursuant to Article VI, shall be abated and apportioned
to the extent that any part of the Demised Premises shall be untenantable.
ARTICLE XXVII
-------------
SURRENDER OF PREMISES
27.1 Tenant shall, upon the termination of this Lease in any manner
whatsoever, remove Tenant's goods and effects and those of any other person
claiming under Tenant, and quit and deliver up the Demised Premises to Landlord
peaceably and quietly in as good order and condition as the same are now or
hereafter may be improved by Landlord or Tenant, reasonable use and wear
thereof, casualty and condemnation damage, and repairs which are Landlord's
obligation excepted. Goods and effects not removed by Tenant at the expiration
of this Lease or its termination by Tenant (or within ten (10) business days
after a termination by Landlord) shall be considered abandoned and Landlord may
dispose of the same as it deems expedient, but Tenant shall promptly upon demand
reimburse Landlord for any expenses incurred by Landlord in connection with such
disposal.
27.2 Upon termination or expiration of this Lease, Tenant shall be
entitled to remove from the Demised Premises any and all property which it would
have been entitled to remove from time to time under the provisions of Article
VIII, provided that Tenant shall, upon removing any such property, repair all
damage (including holes in the drywall) to the Demised Premises or the Building
caused by such removal. If Tenant shall elect not to remove any of such
property and the same shall remain upon the Demised Premises or within the
Building at the time of surrender, the same shall from that time forward become
and remain the Landlord's property. Upon termination or expiration of this
Lease, Tenant shall remove all wiring and data cabling in the Demised Premises
and repair all damage to the Demised Premises caused by such removal.
51
27.3 Tenant's obligation to observe or perform the covenants of this
Article shall survive the expiration or other termination of the Term of this
Lease.
ARTICLE XXVIII
--------------
EFFECT OF CONVEYANCE OR ASSIGNMENT BY LANDLORD
28.1 If Landlord shall convey, assign, or transfer this Lease to any
unaffiliated party, joint venture, or entity whatsoever, which assumes in
writing the Landlord's subsequent obligations under this Lease, Tenant shall
look to the purchaser, assignee, or transferee of Landlord's interest in this
Lease for the performance of Landlord's obligations hereunder, and Landlord
shall from and after such conveyance, assignment, or transfer be relieved and
discharged from any and all liabilities and obligations under this Lease which
arise after the transfer. Tenant agrees to attorn to any such purchaser,
assignee or transferee.
ARTICLE XXIX
------------
WAIVERS
29.1 Mutual Waivers of Jury Trial and Certain Damages. The Tenant and
Landlord each hereby expressly, irrevocably, fully and forever release, waive
and relinquish any and all right to trial by jury and all right to receive
punitive, exemplary and consequential damages from the other (or any past,
present or future board member, trustee, director, officer, employee, agent,
representative, or advisor of the other) in any claim, demand, action, suit,
proceeding or cause of action in which the Tenant and Landlord are parties,
which in any way (directly or indirectly) arises out of, results from, or
relates to, any of the following, in each case whether now existing or hereafter
arising and whether based on contract or tort or any other legal basis: this
Lease; any past, present or future act, omission, conduct or activity with
respect to this Lease; any transactions, event or occurrence contemplated by
this Lease; the performance of any obligation or the exercise of any right under
this Lease; or the enforcement of this Lease. The Tenant and Landlord each agree
that this agreement constitutes written consent that trial by jury shall be
waived in any such claim, demand, action, suit, proceeding or other cause of
action and agree that the Tenant and Landlord each shall have the right at any
time to file this Lease with the clerk or judge of any court in which any such
claim, demand, action, suit, proceeding or other cause of action may be pending
as written consent to waiver of trial by jury.
ARTICLE XXX
-----------
DEFAULTS
30.1 Subject to any grace period provided in Section 5.1, in the event of
any failure by Tenant to pay any rental due under this Lease within ten (10)
days after receipt of written notice of its failure to pay rent (which notice
may run contemporaneously with any statutory notice), or in the event of any
other breach of this
52
Lease by Tenant and if such other breaches shall continue for a period of thirty
(30) days from and after written notice from Landlord to Tenant (subject to such
additional time, if the default cannot be cured within the initial 30 days and
Tenant has commenced a cure within the initial 30 days and thereafter diligently
and continuously pursues a cure), then Landlord may elect either to terminate
Tenant's right to possession or not to terminate Tenant's right to possession,
whether or not Tenant has abandoned the property; provided, however, that in the
event of nonmonetary defaults Landlord may terminate this Lease without
additional notices in accordance with C.R.S. (S) 13-40-104(1)(e) and (e.5), as
amended. Neither acts of maintenance or preservation nor efforts by Landlord to
relet the property nor the appointment of a receiver upon initiative of Landlord
to protect Landlord's interest under this Lease shall constitute a termination
of Tenant's right to possession. Such right may be terminated only by written
notice given by Landlord to Tenant as aforesaid.
In the event that Landlord does not terminate Tenant's right to
possession in case of any such breach, this Lease shall continue in effect for
so long as Landlord does not terminate Tenant's right to possession and Landlord
may enforce all his rights and remedies under this Lease, including the right to
recover the rent (including charges equivalent to rent) as it becomes due under
this Lease. In the event that Landlord terminates Tenant's right to possession
because of a breach of this Lease, this Lease shall thereupon terminate and upon
such termination, Landlord may recover from Tenant:
a. The worth at the time of award of the unpaid rent (including
charges equivalent to rent) which has been earned at the time
of termination.
b. The worth at the time of award of the amount by which the
unpaid rent (including charges equivalent to rent) which would
have been earned after termination until the time of award
exceeds the amount of such rental loss that Tenant proves could
have been reasonably avoided.
c. The worth at the time of award of the amount by which the
unpaid rent (including charges equivalent to rent) for the
balance of the Term after the time of award exceeds the amount
of such rental loss that Tenant proves could be reasonably
avoided.
d. Any other amount necessary to compensate Landlord for all the
detriment proximately caused by Tenant's failure to perform its
obligations under the Lease or which in the ordinary course of
things would be likely to result therefrom, including but not
limited to costs, expenses and attorneys fees.
53
The "worth of the time of award" of the amounts referred to in
subparagraphs (a) and (b) hereof shall include interest at the per annum rate of
two percent (2%) over the prime rate charged from time to time by Norwest Bank
of Denver, N.A., or its successor, from the date the applicable sum is due until
paid. The "worth of the time of award" of the amount referred to in
subparagraph (c) hereof shall be computed by discounting such amount at the then
published rate of the 11th District Cost of Funds Index at the time of award.
Nothing herein mentioned shall affect the right of Landlord to equitable relief
where such relief is appropriate. Efforts by Landlord to mitigate the damages
caused by Tenant's breach of the Lease shall not constitute a waiver of
Landlord's right to recover damages hereunder. Nothing in this paragraph shall
affect the right of Landlord to indemnification for liability arising prior to
the termination of the Lease for personal injuries or property damage.
30.2 Except as otherwise provided in this Lease, if Landlord shall fail
to keep or perform any of its obligations under this Lease in respect to the
making of any of its payments to Tenant or in the performance of any of its
other Lease obligations, and upon the continuance of such failure on Landlord's
part for thirty (30) days after the delivery of notice to Landlord (or, in the
case of any such failure other than the payment of money which cannot reasonably
be cured within 30 days, or such shorter time as may be reasonable in the event
of emergency, within such additional period, if any, as may be reasonably
required by Landlord to cure such failure, provided Landlord has previously
commenced such cure within that 30-day period, and thereafter continuously
prosecutes such cure with all due diligence), and without waiving or releasing
Landlord from any such obligation, then Tenant may (but is under no obligation
to) after giving Landlord at least seven (7) days prior written notice, make
such payment or perform such obligation (except obligations affecting the
Building structure, Building systems or which would adversely affect any
warranty or other tenant in the Building), and all reasonable sums actually paid
or incurred by Tenant and all necessary and incidental costs and expenses,
including also reasonable attorneys' fees, incurred by Tenant in making such
payment or performing such obligation, together with interest at the per annum
rate of two percent (2%) over the prime rate charged from time to time by
Norwest Bank of Denver, N.A., or its successor, until paid, shall be paid by
Landlord to Tenant within thirty (30) days after written demand, and if not so
paid by Landlord, Tenant shall upon obtaining a final judgment in a court with
proper jurisdiction, have the right to offset such sums against any rent or any
other amounts thereafter payable by Tenant under this Lease and to recover the
balance, if any, from Landlord.
ARTICLE XXXI
------------
NOTICES
31.1 All bills, statements, notices, demands, and requests (referred to
in this Lease as "Notices") hereunder by either party to the other shall be in
writing and shall be deemed given (if orderly delivery of the mail is not then
disrupted or threatened) when deposited, registered, or certified, postage
prepaid, in the United States mail, addressed
54
to the respective parties at its address set forth below, or at such different
address as it shall have theretofore advised the other party in writing.
To Landlord: CALPERS
c/o LaSalle Advisors Limited
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxx 00000
Xxxxxxxx Oil Building Partnership
c/o The Xxxxxxxxx Company
0000 Xxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
To Tenant: Ryder TRS, Inc.
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
With copies to: Ryder TRS, Inc.
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
(only until August 30, 1997)
Xxxxx X. Xxxxx, Xx., Esq.
Holland & Xxxx LLP
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000-0000
Tenant shall furnish a copy of all Notices given to Landlord to any holder of
any mortgage upon the Building upon written request from such holder giving the
address to which such copies are to be sent; provided, that the address is
delivered to Tenant prior to the date it gives the Notice. Landlord and each
such holder shall also each have the right to have an additional copy of Notices
sent to such persons and addressed as either such party may designate by written
notice to Tenant delivered to Tenant prior to the date the Notice is given.
ARTICLE XXXII
-------------
ESTOPPEL CERTIFICATE
32.1 Tenant shall, at any time and from time to time, upon not less than
fifteen (15) days prior notice by Landlord, execute and deliver to Landlord a
statement in writing, certifying that this Lease is unmodified and in full force
and effect (or if there have been modifications, that the same is in full force
and effect as modified and stating the modifications), the square footage of the
Demised Premises, the Annual Base Rent,
55
the amounts and dates to which the Annual Base Rent, Additional Rent, and other
charges have been paid, setting forth the Commencement Date and expiration date
of the Lease and all rights which Tenant may have to renew the Lease and all
rights of first offer and refusal, and stating whether or not to the best
knowledge of the signer of such certificate Landlord is in default in
performance of any covenant, agreement, term, provision, or condition contained
in this Lease, and if so, specifying each such default of which the signer may
have knowledge, it being intended that any such statement delivered pursuant
hereto may be relied upon by any prospective purchaser or lessee of the
Building, Landlord's interest hereunder, or Landlord's interest under the Prime
Lease, or by any mortgagee thereof. Tenant shall also execute and deliver from
time to time such other similar certificates as may be required by an
institutional lender having an interest in this Lease.
32.2 Landlord shall, at any time and from time to time, upon not less
than fifteen (15) days prior notice by Tenant, execute and deliver to Tenant a
statement in writing, certifying that this Lease is unmodified and in full force
and effect (or if there have been modifications, that the same is in full force
and effect as modified and stating the modifications), the amounts and dates to
which the Annual Base Rent, Additional Rent, and other charges have been paid,
setting forth the Commencement Date and expiration date of the Lease and stating
whether or not to the best knowledge of the signer of such certificate Tenant is
in default in performance of any covenant, agreement, term, provision, or
condition contained in this Lease, and if so, specifying each such default of
which the signer may have knowledge.
ARTICLE XXXIII
--------------
PLURALS AND PRONOUNS, SUCCESSORS AND ASSIGNS
33.1 The word "Tenant," wherever used in this Lease, shall be construed
to mean tenants if by assignment there shall be more than one tenant hereunder.
The necessary grammatical changes required to make all provisions hereof apply
to corporations, partnerships, or individuals, men or women, shall in all cases
be assumed as though in each case fully expressed.
33.2 The word "Landlord" whenever used in this Lease shall include, where
applicable, its property manager, employees and agents.
33.3 Each provision hereof shall extend to and shall, as the case may
require, bind, and inure to the benefit of Landlord and Tenant and their
respective heirs, legal representatives, successors, and assigns; provided that
this Lease shall not inure to the benefit of any assignee, heir, legal
representative, transferee, or successor of any Tenant, except as provided in
Article VII of this Lease, or of Landlord if the transfer be contrary to Article
XXVIII.
56
ARTICLE XXXIV
-------------
ENTIRE AGREEMENT, CAPTIONS, SEVERABILITY
34.1 This Lease shall be governed by the laws of the State of Colorado.
This Lease contains the entire agreement between the parties, and any executory
agreement simultaneously or hereafter made shall be ineffective to amend,
modify, or terminate it in whole or in part unless such executory agreement is
in writing and signed by the party against whom enforcement of the amendment,
modification, or termination is sought.
34.2 The captions in this Lease are inserted only as a matter of
convenience and for reference and in no way define, limit, or describe the scope
of this Lease nor the intent of any provision thereof.
34.3 Each and every covenant of this Lease is distinct and severable and
if any provision of this Lease is held invalid by a court of competent
jurisdiction or other governmental authority, the same shall be stricken
herefrom without affecting the validity of this Lease.
ARTICLE XXXV
------------
MEMORANDUM OF LEASE
35.1 The parties hereto shall, upon the written request of either one to
the other, execute a Memorandum of this Lease and, to the extent applicable, a
Memorandum of the Commencement Date Agreement.
ARTICLE XXXVI
-------------
CONTINUANCE OF OCCUPANCY
[INTENTIONALLY DELETED]
ARTICLE XXXVII
--------------
BROKERAGE
37.1 Landlord and Tenant covenant and represent that it has negotiated
this Lease directly with Xxxxx Commercial, as agent for Tenant, and The
Xxxxxxxxx Company Brokerage, Inc., as agent for Landlord, and has not acted by
implication to authorize or authorized any other real estate broker or salesman
to act for it in these negotiations and each agrees to indemnify and hold the
other harmless from any and all claims by any such other real estate broker or
salesman for a commission or finder's fee as a result of their entering into
this Lease.
57
ARTICLE XXXVIII
---------------
HOLDOVER TENANCY
38.1 If, with Landlord's consent, Tenant holds possession of the Demised
Premises after the Term (or any renewal) of this Lease, Tenant shall become a
tenant from month to month upon the terms herein specified but at a monthly
rental equivalent to one hundred fifty percent (150%) of the then prevailing
rental paid by Tenant at the expiration of the Term of this Lease pursuant to
all the provisions hereof (unless Landlord and Tenant otherwise agree in
writing), payable in advance on or before the first day of each month, and
Tenant may continue in possession until such tenancy shall be terminated by
Landlord or until Tenant shall have given to Landlord thirty (30) days written
notice in advance of its intention to terminate such tenancy.
ARTICLE XXXIX
-------------
RELOCATION
[INTENTIONALLY DELETED]
ARTICLE XL
----------
MISCELLANEOUS
40.1 The submission of this Lease for examination by Tenant does not
constitute a reservation of or option for the Demised Premises, and this Lease
shall become effective only upon execution and delivery thereof by Landlord and
Tenant. If any Term of this Lease and any application thereof shall be invalid
or unenforceable, the remainder of this Lease and any other application of such
term shall be not affected thereby. This Lease may be changed, waived,
discharged, or terminated only by an instrument in writing signed by the party
against whom such enforcement of such change, waiver, discharge or termination
is sought. Subject to Article VII, this Lease shall be binding upon and inure to
the benefit of and be enforceable by the respective successors and assigns of
the parties hereto. All covenants and agreements of Tenant and Landlord
hereunder shall be deemed to be covenants running with the land, and each such
covenant and agreement shall be deemed to be and shall be construed as a
separate and independent covenant of the party bound by or making the same and
shall not be dependent on any other provision of this Lease, except as
specifically provided for herein.
40.2 Legal Expenses. If either party brings or maintains any action
(including assertion of any counterclaim or cross-claim, or claim in a
proceedings in bankruptcy, receivership or any other proceeding instituted by a
party hereto or by others), or otherwise refers this Lease to an attorney for
the enforcement of any of the covenants, terms or conditions of this Lease or
otherwise relating to or arising from this Lease, the prevailing party in such
action shall, in addition to all other payments required herein,
58
receive from the other, all the costs incurred by the prevailing party including
reasonable attorneys' fees and such costs and reasonable attorneys' fees which
the prevailing party incurred on any appeal or enforcing any judgment.
ARTICLE XLI
-----------
EXCULPATION
41.1 Except as otherwise specifically provided in this Lease, Tenant
agrees that it shall not seek a personal judgment against any partner of
Xxxxxxxx Oil Building Partnership for any default in the performance or
observance of any of the terms or conditions of this Lease, nor seek nor assert
a deficiency judgment or any other amount claimed payable against the same in
any proceeding whatsoever arising out of any alleged breach or non-performance
of this Lease; agreeing that it shall look solely to Xxxxxxxx Oil Building
Partnership itself (or its successor or assign, if any) and its interest in the
Building for payment of any such sums, including without limitation any rent
from the Building and any insurance or condemnation proceeds.
ARTICLE XLII
------------
PARKING
42.1 Subject to the continued availability of the underground parking
garage from the Prime Lease Lessor, Landlord agrees to provide Tenant with the
opportunity during the Term of this Lease to lease up to thirty-three (33)
parking spaces on sublevel one of the Building, of which five (5) shall be
reserved and twenty-eight (28) shall be unreserved. The parking spaces may be
used by Tenant on a twenty-four (24) hour per day basis. The cost of such spaces
shall be the garage rates from time to time charged to other tenants of the
Building ($125 per month as of the date hereof); provided, that for the first
three (3) years of the Lease the cost of the reserved parking space shall be the
amount charged from time to time for unreserved parking spaces. Prior to the
Commencement Date of this Lease, Tenant shall advise Landlord in writing of the
number of parking spaces up to a maximum of thirty-three (33) spaces that it
wants to Lease. During the Term of the Lease, Tenant may reduce or increase the
number of parking spaces up to the maximum of thirty-three (33) but in order to
increase the number of spaces it must give the Landlord at least sixty (60) days
prior written notice of its decision to lease additional parking spaces. In the
event Landlord is unable to provide parking space in the garage, its only
obligation shall be to use its reasonable efforts to provide parking spaces in
other parking structures or lots at comparable rates and such inability shall
not constitute grounds to assert that Landlord has breached this Lease. If the
Tenant leases additional space in the Building, it shall be entitled to
additional parking spaces at a ratio of one (1) space for each additional 2,000
square foot space leased. If the Prime Lease Lessor reduces the number of
parking spaces which Landlord may use for its tenants, the Tenant shall be
entitled to lease its pro rata share of the remaining spaces, if any.
59
AGREED TO AND ACCEPTED this 12th day of March 1997.
LANDLORD:
XXXXXXXX OIL BUILDING PARTNERSHIP,
a California general partnership
By: State of California Public Employees'
Retirement System, a unit of the State
and Consumer Services Agency of
the State of California
By: LASALLE ADVISORS LIMITED PARTNERSHIP
Its: Investment Manager and Duly Authorized
Agent
By: /s/ Xxxxxx X. Xxxx
-----------------------------------------
Name: XXXXXX X. XXXX
---------------------------------------
Title: VICE PRESIDENT
--------------------------------------
By: /s/ Xxxx X. Xxxx
-----------------------------------------
Name: XXXX X. XXXX
---------------------------------------
Title: PRINCIPAL
--------------------------------------
TENANT:
RYDER TRS, INC., a Delaware corporation
Signed and Acknowledged
in the Presence of:
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxx
---------------------------------------
Xxxxx X. Xxxxxxxxxx
---------------------------
Title: President and Chief Operating Officer
--------------------------------------
60
