EXHIBIT 10.21
LEASE AGREEMENT
FOR
XXXXXXXXX XXXXX XX XXXXXXXXXX
XXXXXX, XXXXXXXX
BETWEEN
HD DELAWARE PROPERTIES, INC.,
AS LANDLORD
AND
TANNING TECHNOLOGY CORPORATION
AS TENANT
TABLE OF CONTENTS
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Page
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1. BASIC LEASE PROVISIONS, EXHIBITS AND DEFINITIONS.......................1
2. DEMISE.................................................................4
3. BASE RENT..............................................................5
4. ADDITIONAL RENT........................................................5
5. CONSTRUCTION AND POSSESSION............................................5
6. OCCUPANCY OF PREMISES..................................................7
7. SERVICES PROVIDED BY LANDLORD..........................................7
8. REPAIRS................................................................9
9. ADDITIONS AND ALTERATIONS.............................................10
10. COVENANT AGAINST LIENS...............................................11
11. INSURANCE............................................................11
12. FIRE OR CASUALTY.....................................................12
13. WAIVER OF CLAIMS - INDEMNIFICATION...................................13
14. NONWAIVER............................................................14
15. CONDEMNATION.........................................................14
16. ASSIGNMENT AND SUBLETTING............................................15
17. SURRENDER OF POSSESSION..............................................15
18. PERSONAL PROPERTY....................................................16
19. HOLDING OVER.........................................................16
20. ESTOPPEL CERTIFICATE.................................................16
21. OBLIGATIONS TO MORTGAGEES............................................17
22. CERTAIN RIGHTS RESERVED BY LANDLORD..................................17
23. RULES AND REGULATIONS................................................19
24. DEFAULT AND REMEDIES.................................................19
25. EXPENSES OF ENFORCEMENT..............................................22
26. COVENANT OF QUIET ENJOYMENT..........................................22
27. SECURITY DEPOSIT.....................................................22
28. REAL ESTATE BROKER...................................................23
29. MISCELLANEOUS........................................................23
30. LIMITATIONS ON LANDLORD'S LIABILITY..................................26
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31. .....NOTICES.........................................................26
RIDER NO. 1 OPTION TO EXTEND
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LEASE AGREEMENT
RICHFIELD TOWER AT METROPOINT
This LEASE AGREEMENT (this "Lease") is made as of the 31st day of January, 1995,
between HD DELAWARE PROPERTIES, INC., a Delaware corporation (the "Landlord"),
and TANNING TECHNOLOGY CORPORATION, a Colorado corporation, whose present
address Is 0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000 (the
"Tenant").
1. BASIC LEASE PROVISIONS, EXHIBITS AND DEFINITIONS
A. Basic Lease Provisions.
The following are certain basic lease provisions which are part of,
and in certain instances referred to in subsequent provisions of this
Lease:
(1) Term: Five (5) years and two (2) months, beginning on March 1,
1995 ("Commencement Date") or any deferred Commencement Date that
may apply under Exhibit C. When the Commencement Date has been
determined, Landlord and Tenant will execute a certificate
specifying same and the last day of the Term ("Termination
Date").
(2) Base Rent: Seventy-nine Thousand Five Hundred Forty-Two and
No/100 Dollars ($79,542.00) per annum (based on $20.25 per square
foot of the Rentable Area of the Premises per annum), payable in
equal monthly installments of Six Thousand Six Hundred Twenty-
Eight and 50/100 Dollars ($6,628.50).
(3) Operating Expense and Tax Base Amount: The amount of Operating
Expenses and Taxes payable during calendar year 1995.
(4) Permitted Use: General office use and for no other purpose.
(5) Rentable Area of the Premises: 3,928 square feet located on the
3rd floor, known as suite 380.
(6) Tenant's Proportionate Share: one and four hundred eighty-nine
thousandths percent (1.489%), subject to adjustment as provided
in Section 1C(12).
(7) Building Percentage: 100 percent (100%), subject to adjustment as
provided in Section 1C(4).
(8) Security Deposit: Six Thousand Six Hundred Twenty-Eight and
50/100 Dollars ($6,628.50).
(9) Broker: Xxxxxx X. Xxxxx.
B. Exhibits
The Exhibits listed below shall be attached to this Lease and be
deemed incorporated in this Lease by this reference. In the event of
any inconsistency between such Exhibits and the terms and provisions
of this Lease, the terms and provisions of the Exhibits shall control.
The Exhibits to this Lease are:
Exhibit A - Legal Description of the Land
Exhibit B - Plan Delineating the Premises
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Exhibit C - Tenant Construction Agreement.
Exhibit D - Rules and Regulations
Exhibit E - Parking
Rider No. 1 Option to Extend
C. Definitions.
In this Lease (including this Section) the following defined terms
have the meanings indicated:
(1) "Additional Buildings" means any and all buildings (other than
the Building) which may be constructed or located from time to
time on the Land.
(2) INTENTIONALLY OMITTED.
(3) "Building" means that fourteen floor office and commercial
building containing approximately 263,719 square feet of rentable
area commonly known as Richfield Tower at METROPOINT, 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx, located on the Land and in which
the Premises are located.
(4) "Building Percentage" means that percentage obtained from time to
time by dividing the Rentable Area of the Building by the sum of
the Rentable Area of the Building and the Rentable Area of those
portions of any Additional Buildings that are occupied by tenants
(provided, however, that at such time as eighty percent (80%) of
the Rentable Area of any Additional Building is occupied by
tenants, the full Rentable Area of such Additional Building shall
be included in the foregoing calculation). For any Calendar Year
in which the Rentable Area used to calculate the Building
Percentage changes, the Building Percentage shall be calculated
based on the average of such Rentable Area during such Calendar
Year, taking into account the date(s) on which the change occurs.
The Building Percentage shall initially be that percentage set
forth in Section 1A(9).
(5) "Calendar Year" means any twelve month period, January through
December, which contains any part of the Term of this Lease.
(6) "Complex" means the Land, the Building and all other Improvements
on the Land from time to time, including any variations or
additions thereto, but excluding the Additional Buildings.
(7) "Land" means the real property legally described on Exhibit A,
less any portion or portions thereof that may be conveyed
separately from the Building by Landlord from time to time, plus
any additional real property located proximate thereto that may
be operated in conjunction therewith by Landlord from time to
time.
(8) "Operating Expenses" means all expenses, costs and disbursements
(other than those expressly excluded below) of every kind and
nature paid or incurred by Landlord in owning, operating,
managing, leasing, equipping, securing, protecting, insuring,
heating, cooling, ventilating, lighting, repairing, replacing,
renewing, cleaning, maintaining, and providing water, sewer and
other utilities to, the
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Building plus the Building Percentage of such expenses, costs and
disbursements paid or incurred by Landlord with respect to the
Land, the parking structure and other improvements in the Complex
(exclusive of Additional Buildings). Operating Expenses shall not
include ground rent and principal and interest payments on loans
made to Landlord, costs required to be capitalized for federal
income tax purposes (except as provided below), leasing
commissions, "Taxes" (as defined in Section 1C(11) below), or
costs related solely to any Additional Buildings at the Complex;
however, Operating Expenses shall include costs required to be
capitalized for federal income tax purposes that are (i) incurred
in order to conform to changes subsequent to the date of this
Lease in any applicable laws, ordinances, rules, regulations or
orders of any governmental or quasi-governmental authority having
jurisdiction over the Complex, or (ii) intended to reduce
Operating Expenses or the rate of increase in Operating Expenses;
such costs shall be charged by Landlord to Operating Expenses in
equal annual installments over the useful life of the items for
which such costs are incurred (as reasonably determined by
Landlord) together with interest on the balance of the
unamortized cost at the rate stated by The First National Bank of
Chicago as its corporate base rate at the time each such cost was
incurred by Landlord.
(9) "Premises" means that portion of the Building identified as such
on Exhibit B and containing the Rentable Area set forth in
Section 1A(7). The Premises do not include, and Landlord hereby
excludes and reserves for its sole and exclusive use, any and
all: janitor closets, stairways and stairwells; fan, mechanical,
electrical, telephone and similar rooms (other than those
installed for Tenant's exclusive use); elevator, pipe and other
vertical shafts, flues and ducts; all areas above the acoustical
ceiling and below the finished floor covering installed in the
Premises; and other areas not shown on Exhibit B as being part of
the Premises.
(10) "Rentable Area" means area in square feet, calculated by
Landlord's architect, whose determination shall be conclusive.
(11) "Taxes" means all real estate and personal property taxes and
assessments (general, special or otherwise) and license fees,
levied or assessed by any federal, state, county or local
government or by any other taxing district or authority upon or
with respect to the Building, the maintenance equipment and
vehicles, elevators, building machinery and other personal
property owned or leased by Landlord and necessary for the
operation of the Building, plus the Building Percentage of such
real estate and personal property taxes and assessments upon or
with respect to the Land, the parking structure and other
improvements in the Complex and similar personal property
necessary for the operation of the Complex. Notwithstanding the
foregoing, Taxes shall not include taxes and assessments on the
improvements included in any Additional Buildings or any personal
property used solely in connection with any Additional Buildings.
Should any governmental authority having jurisdiction over the
Complex impose an income or franchise tax or a tax on rents in
substitution, in whole or in part, for such real estate or
personal property taxes or in lieu of any increase in such taxes,
such income, franchise or rent tax shall be deemed to constitute
Taxes
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hereunder. Taxes shall include all special taxes and special
assessments, installments of which are required to be paid during
any Calendar Year, and all fees and costs, including attorneys'
fees and expenses, incurred by Landlord in seeking to reduce, or
limit the increase in, any Taxes, regardless of whether any
reduction or limitation is obtained. All references to Taxes for
a particular year shall be deemed to refer to Taxes levied,
assessed or otherwise imposed for such year without regard to
when such Taxes are payable.
(12) "Tenant's Proportionate Share" means that percentage obtained
from time to time by dividing the Rentable Area of the Premises
by the Rentable Area of the Building. For any Calendar Year in
which the Rentable Area used to calculate the Tenant's
Proportionate Share changes, the Tenant's Proportionate Share
shall be calculated based on the average of such Rentable Area
during such Calendar Year, taking into account the date(s) on
which the change occurs. The Tenant's Proportionate Share shall
initially be that percentage set forth in Section 1A(8).
Notwithstanding the foregoing provisions, during any portion of
the Term that the Building is not fully occupied, the Tenant's
Proportionate Share with respect to those Operating Expenses
which are variable depending upon occupancy (such as janitorial
costs) shall be equitably adjusted so as to attribute to Tenant
its fair share of such variable Operating Expenses, but shall not
be adjusted with respect to any Operating Expenses which are not
variable depending upon occupancy (such as liability insurance
and landscape maintenance). If Landlord should lease any premises
in the Building on a net lease" or similar basis such that
Landlord is not obligated to furnish to the tenant(s) of such
premises any of the services described in Section 7, then, with
respect to those items of Operating Expenses that would have been
incurred by Landlord had Landlord been required to furnish all of
the services described in Section 7 to such premises, such
premises shall be deemed "unoccupied" for purposes of the
preceding sentence depending upon occupancy (such as liability
insurance and landscape maintenance).
(13) "Term" means the term of this Lease which shall commence on the
date set forth in Section 1A(1) or the later date to which such
commencement may be extended pursuant to Section 5C (the
"Commencement Date") and shall terminate on the date set forth in
Section 1A(2) or the later date to which such termination may be
extended pursuant to Section 5C (the "Termination Date"), unless
terminated earlier or extended further as provided in this Lease.
Certain additional defined terms are used in this Lease; such terms have
the meanings set forth in the sections of this Lease where the definitions of
such terms appear.
2. DEMISE
In consideration of the keeping, observance and performance by Tenant of
the provisions, covenants and agreements contained in this Lease and the
payment by Tenant of the rents herein reserved, Landlord hereby demises and
leases to Tenant and Tenant hereby takes from Landlord, the Premises for
the Term hereof, subject to the terms and conditions of this Lease and
existing covenants, conditions, restrictions, easements and encumbrances
affecting the same.
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3. BASE RENT
Commencing on the Commencement Date and thereafter during the Term, Tenant
covenants and agrees to pay the rent described in this Section 3 (the "Base
Rent") in accordance with the provisions hereof. Base Rent during each
Calendar Year shall be payable in monthly installments as set forth in
Section 1A(2), in advance on or before the first day of each and every
month during the Term. If the Term commences other than on the first day of
a month or ends other than on the last day of a month, Base Rent for such
month shall be prorated. Upon the execution hereof, Tenant shall pay the
monthly installment for the first full month of the Term for which Base
Rent is due. All payments of Base Rent and other "Rent" (as defined below)
shall be made at such place as Landlord may from time to time designate to
Tenant in writing, without any demand, set-off or deduction whatsoever.
Notwithstanding anything to the contrary contained herein, Landlord hereby
waives payment of Base Rent for the first two (2) months of the initial
Term of this Lease.
4. ADDITIONAL RENT
In addition to paying the Base Rent specified in Section 3 hereof, Tenant
shall pay as "Additional Rent" the amounts described in this Section 4. The
Base Rent, the Additional Rent and all other amounts payable by Tenant to
Landlord pursuant to this Lease are sometimes herein collectively referred
to as the "Rent."
Tenant shall pay to Landlord as Additional Rent an amount (the "Operating
Expense and Tax Escalation Amount") for each Calendar Year equal to the total of
the amount by which Tenant's Proportionate Share of Operating Expenses and Taxes
for such Calendar Year exceeds the Operating Expense and Tax Base Amount. The
Operating Expense and Tax Escalation Amount for each Calendar Year shall be paid
in estimated monthly installments. The amount of the estimated monthly
installments shall be reasonably estimated and adjusted from time to time by
Landlord by written notice to Tenant. As promptly as practicable following the
close of each Calendar Year, Landlord shall deliver to Tenant its statement
specifying the amount of Operating Expenses and Taxes for such Calendar Year,
the total estimated installments paid by Tenant for such Calendar Year and the
actual Operating Expense and Tax Escalation Amount for such Calendar Year. If
such statement shows that the actual Operating Expense and Tax Escalation Amount
exceeds the total estimated payments by Tenant, Tenant shall pay the deficiency
to Landlord within thirty (30) days after delivery of such statement. If such
statement shows that Tenant's estimated payments exceed the Operating Expense
and Tax Escalation Amount, the overage shall be credited against the next
accruing amounts due from Tenant under this Lease and the balance, if any, shall
be refunded to Tenant. All estimated monthly installments of Additional Rent due
under this Section shall be payable in advance, commencing on the Commencement
Date and thereafter on the first day of each and every month during the Term at
the same place as Base Rent. Tenant's obligation to pay the Additional Rent
provided for in this Section 4 which is accrued but not paid for periods prior
to the expiration or termination of the Term shall survive such expiration or
termination. For any Calendar Year which does not fall entirely within the Term,
Tenant shall be obligated to pay only a pro-rata share of the Operating Expense
and Tax Escalation Amount as hereinabove determined based on the number of days
of the Term falling within the Calendar Year in question.
5. CONSTRUCTION AND POSSESSION.
A. Landlord's Obligations
Landlord will proceed to complete the Premises in accordance with the
Tenant Construction Agreement attached hereto as Exhibit C and tender
the Premises to Tenant upon substantial completion of Landlord's
obligations thereunder. The Premises shall be accepted by Tenant when
tendered, provided the following conditions have been satisfied:
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(1) Those common areas of the Building necessary to permit Tenant's
safe occupancy and use of the Premises, including all building
systems necessary for the performance of Landlord's service
obligations under Section 7 hereof, shall be substantially
complete; and
(2) A Certificate of Occupancy or similar written approval shall have
been issued by the appropriate governmental authority permitting
occupancy of the Premises.
Landlord and Tenant agree that all alterations, improvements and additions made
to the Premises pursuant to the Tenant Construction Agreement, whether paid for
by Landlord or Tenant, shall without compensation to Tenant become Landlord's
property upon installation and shall remain Landlord's property at the
expiration of the Term or sooner termination of this Lease. period of such
occupancy prior to the scheduled Commencement Date at the rates set forth in
Section 3 and Section 4 hereof, pro-rated for the portion of Premises so
occupied. Under no circumstances shall the occurrence of any of the events
referred to in this Section 58 be deemed to accelerate the Termination Date.
C. Failure to Complete
If Landlord fails to substantially complete its obligations under the
Tenant Construction Agreement and tender the Premises to Tenant in
accordance with Section 5A on or before the originally scheduled
Commencement Date set forth in Section 1A(1), Landlord will not be in
default or liable in damages to Tenant, nor will the obligations of
Tenant hereunder be affected, provided, however, that:
(1) the Commencement Date shall automatically be extended by one day
for each day of the period beyond the date set forth in Section
1A(1) that Landlord fails to so substantially complete its
obligations, less any portion of that period attributable to
Tenant's delays as more particularly described in the Tenant
Construction Agreement, and the Termination Date shall
automatically be extended by the same number of days that the
Commencement Date is so extended (except that if such extension
would result in the Termination Date occurring on other than the
last day of a calendar month, the Termination Date shall be
extended by the additional number of days required in order for
the Termination Date to occur on the last day of a calendar
month); and
(2) if the full Premises are not tendered to Tenant in accordance
with Section 5A on or before the date 6 months after the date set
forth in Section 1A(1) (plus any period of delay caused by Tenant
as described in the Tenant Construction Agreement), Tenant shall
have the right to terminate this Lease and all obligations and
rights created hereby by delivering written notice of termination
to Landlord not more than thirty (30) days after such date.
Upon a termination under subparagraph (2) above, each party shall, upon the
other's request, execute and deliver an agreement in recordable form containing
a release and surrender of all right, title and interest in and to this Lease;
neither Landlord nor Tenant shall have any further obligations to each other,
including without limitation, any obligations to pay for work previously
performed in the Premises; all improvements to the Premises shall become and
remain the property of Landlord; and Landlord shall refund to Tenant any sums
paid to Landlord by Tenant in connection with this Lease, including without
limitation any payments to Landlord of construction costs for the Premises. Such
postponement of the commencement of the Term and such termination
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and refund right shall be in full settlement of all claims that Tenant might
otherwise have against Landlord by reason of the Landlord's failure to
substantially complete its obligations under the Tenant Construction Agreement
by the date set forth in Section 1A(1).
D. Punch List
The Tenant's taking possession of any portion of the Premises shall be
conclusive evidence that such portion of the Premises was in good
order and satisfactory condition when the Tenant took possession,
except as to items contained on a punch list to be prepared after an
inspection made and signed by representatives of Landlord and Tenant
when Tenant takes possession. Landlord shall not be responsible for
any items of damage caused by Tenant, its agents, independent
contractors or suppliers. No promise of the Landlord to alter, remodel
or improve the Premises or the Building or Complex and no
representation respecting the condition of the Premises or the
Building or Complex have been made by the Landlord to the Tenant other
than as may be contained in this Lease or in the Tenant Construction
Agreement.
6. OCCUPANCY OF PREMISES.
A. Use
Tenant shall use and occupy the Premises only for the use described in
Section 1A(6) (the "Tenant's Use").
B. Compliance
Tenant shall not use or permit the use of the Premises or the Complex
or any part thereof for any purpose prohibited by law. Tenant shall,
at its sole expense, comply with and conform to all of the
requirements of all governmental authorities having jurisdiction over
the Complex which relate in any way to the condition, use and
occupancy of the Premises (other than structural and system repairs as
described in Section 7A(1), which are the responsibility of the
Landlord) throughout the entire Term of this Lease.
7. SERVICES PROVIDED BY LANDLORD.
A. Description of Standard Services
Landlord will furnish for Tenant and the Premises, subject to the
other provisions of this Section 7, the following services:
(1) repair and maintenance of all structural elements of the Building
and all general mechanical and electrical systems installed in
the Building by Landlord, but excluding any systems installed in
the Premises for Tenant's exclusive use. The cost of such repair
and maintenance shall be included in Operating Expenses unless
otherwise provided in this Lease or unless caused by the act or
omission of Tenant, its agents, employees, contractors, licensees
or invitees, in which latter case such cost shall be paid by
Tenant within fifteen (15) days after written demand therefor;
(2) heating, ventilating and air conditioning (heating or cooling as
required by the seasons), without special request from Tenant,
from 8:00 a.m. to 6:00 p.m. on Monday through Friday, except
holidays, at temperatures and in amounts as may, in the sole
judgment of the Landlord, be reasonably required for comfortable
use and occupancy under normal business operations with
"Customary Office Equipment" (as used in this Lease, "Customary
Office Equipment" shall include typewriters, adding machines,
calculators, dictation recorders, small reproduction machines and
similar devices and
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equipment but shall not include any machines, devices or
equipment that adversely affect the temperature otherwise
maintained in the Premises such as, e.g., data processing,
computer or heavy-duty reproduction equipment). If Tenant shall
require such heat, ventilation or air conditioning outside the
hours and days specified above (the "After Hours HVAC"), Landlord
will furnish the same for the hours specified in a request from
Tenant (an "HVAC Request") and for this service Tenant will pay
Landlord, upon receipt of Landlords statement, the hourly rate
reasonably determined by Landlord from time to time; provided,
however, that Tenant shall not be required to pay any such charge
for heating, ventilation or air conditioning requested by Tenant
in an HVAC Request for the hours from 8:00 a.m. to 1:00 p.m. on
Saturdays (except holidays). Any HVAC Request by Tenant shall be
made in such a manner and at such time as Landlord may from time
to time establish for HVAC Requests, and Tenant acknowledges and
agrees that Landlord may require that HVAC Requests be made by
Tenant's authorized employees by direct code or card access to
the computer system controlling the Building's mechanical system.
As of the date of this Lease, Landlord's charge for After Hours
HVAC is thirty-five and No/100 Dollars ($35.00) per hour, with a
minimum charge of two (2) hours. Tenant acknowledges that
Landlord shall have the right to change such After Hours HVAC
rate from time to time as reasonably determined by Landlord;
(3) cold water for lavatory and toilet purposes, refrigerated water
for drinking purposes and tempered water for lavatory purposes;
all water service to be supplied from the regular supply of water
to the Building at points of supply provided for general use of
tenants of the Building through fixtures installed by Landlord;
(4) janitorial services to the Premises comparable to those
janitorial services provided to tenants of similar first-class
office buildings in the Denver metropolitan area;
(5) passenger elevators for access to and from the floor(s) on which
the Premises are located, shuttle elevators for access to the
parking garage, and freight elevator service but only when
scheduled through the manager of the Building;
(6) toilet facilities in common with other tenants on the floors
occupied by Tenant;
(7) electric lighting for all public areas and special service areas
of the Building as reasonable and standard for first-class office
buildings, including replacement of light bulbs and tubes;
(8) replacement of light bulbs in those Building standard lighting
fixtures installed in the Premises; and
(9) electrical current at the Building standard of 2 xxxxx per
rentable square foot of the Premises for normal business
operations within the Premises for regular business hours during
a normal business week (including lighting for the Premises and
for Customary Office Equipment).
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B. Additional Services
Landlord shall not be obligated to furnish any services or utilities
other than those stated in Section 7A above. If Tenant should require
electric current, water or any other energy in excess of the amounts
provided by Landlord pursuant to Section 7A above, such excess
electric, water or other energy requirement shall be supplied only
with the consent of Landlord, which consent shall not be unreasonably
withheld. If Landlord grants such consent, Tenant shall, on demand,
pay all costs of meter service and installation of facilities
necessary to measure and furnish the required excess capacity. Tenant
shall also pay the entire cost of such additional electricity, water
or other energy so required in the event Tenant installs any machines,
equipment or devices in the Premises that do not constitute Customary
Office Equipment and such machines, equipment or devices cause the
temperature in the Premises, or any part thereof, to exceed the
temperatures the Building's mechanical system would be able to
maintain in the Premises were it not for such machines, equipment or
devices, then Landlord reserves the right to install supplementary air
conditioning units in the Premises, and the costs thereof, including
the cost of installation and the cost of operation and maintenance
thereof, shall be paid by Tenant to Landlord upon demand.
Notwithstanding anything to the contrary contained herein, if Tenant
should require electric current in excess of 2 xxxxx per rentable
square foot of the Premises, and Landlord installs a submeter for the
Premises to measure such excess electricity use as set forth herein,
Landlord shall provide Tenant with a monthly cost summary detailing
Tenant's electrical usage based on Tenant's meter reading performed by
the Public Service Company of Colorado (or its successor) and Tenant
shall pay Landlord for such excess electrical use pursuant to such
summary upon receipt of invoice. Landlord, in its sole discretion,
shall have the right to, at all times, alter any and all utilities and
the equipment relating thereto.
C. Interruption of Services
Landlord does not warrant that the services provided for in this
Section 7 will be free from any irregularity or stoppage. Landlord
will use due diligence to resume the service upon any irregularity or
stoppage; provided, however, no irregularity or stoppage of any of
these services will create any liability for Landlord, constitute an
eviction, actual or constructive, of Tenant, or cause any abatement of
the Rent payable under this Lease or in any manner or for any purpose
relieve Tenant from any of its obligations under this Lease.
8. REPAIRS.
A. Repairs Within the Premises
Subject to the terms of Sections 7A(1), 12 and 15 hereof, Tenant
will, at Tenant's own expense, keep the Premises in good order, repair
and condition at all times during the Term. Except for damage caused
by Landlord, its employees, agents or contractors, Tenant shall
promptly and adequately repair all damage to the Premises and replace
or repair all damaged or broken fixtures and appurtenances, under the
supervision and subject to the approval of the Landlord. All work done
by Tenant or its contractors (which contractors shall be subject to
Landlord's reasonable approval and shall not conflict with any union
affiliation of Landlord's contractors) shall be done in a first-class
workmanlike manner using only, grades of materials at least equal in
quality to those which are included in Landlords standard improvements
for the Building and shall comply with all insurance requirements and
all applicable laws and ordinances and rules and regulations of
governmental departments or agencies. At Landlord's option, Landlord
may require that all work required
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to be performed by Tenant under this Section 8A be performed by
Landlord or Landlord's contractor at Tenant's expense, in which case
Tenant shall pay Landlord the cost of any such work, including an
amount sufficient to reimburse Landlord for overhead and related
expenses, forthwith upon being billed for the same as additional Rent
hereunder.
B. Landlord's Entry
If the Tenant fails to do so within a reasonable period of time or if
Landlord deems such action necessary because of an actual or suspected
emergency, Landlord may, but need not, make the repairs and
replacements described in Section 8A, and Tenant shall pay Landlord
the cost thereof, including an amount sufficient to reimburse Landlord
for overhead and related expenses, forthwith upon being billed for
same as additional Rent hereunder. Landlord may, but shall not be
required to, enter the Premises at all reasonable times on prior
notice (except in cases of actual or suspected emergency, in which
case no prior notice shall be required) for the purpose of inspecting,
repairing or maintaining the same. Landlord shall take reasonable
steps in connection with such entry to minimize any disruption to
Tenant's business or its use of the Premises.
C. Notice of Damage
Tenant shall give prompt notice to Landlord of (a) any fire or other
casualty in the Premises, (b) any damage to or defect in the Premises,
including the fixtures, equipment and appurtenances thereof, for the
repair of which Landlord might be responsible and (c) any damage to or
defect in any parts or appurtenances of the Building's sanitary,
electrical, heating, air conditioning, elevator or other systems
located in or passing through the Premises or any part thereof.
Landlord shall have no repair obligations whatsoever absent such
notice or actual knowledge of such condition.
9. ADDITIONS AND ALTERATIONS
Tenant shall not, without the prior written consent of Landlord,
make any alterations, improvements or additions to the Premises. If
Landlord consents to such alterations, improvements or additions, it may
impose such conditions with respect thereto as Landlord deems appropriate,
including, without limitation, requiring Tenant to furnish Landlord with
insurance against liabilities which may arise out of such work, security
for Tenant's obligations to pay for such work, plans and specifications for
Landlords approval prior to commencement of construction, copies of all
permits necessary for such work and "as built" plans after completion of
such work together with a complete breakdown of the cost of such work as
required for purposes of Landlord's insurance or self-insurance. The work
necessary to make any alterations, improvements or additions to the
Premises shall be done at Tenants expense by employees of or contractors
hired by Landlord. Tenant shall promptly pay, when due, the cost of all
such work and of all decorating required by reason thereof. Tenant shall
also pay to Landlord an amount sufficient, in Landlord's reasonable
judgment, to reimburse Landlord for all of its overhead and related
expenses allocable to such work. Upon completion, Tenant shall deliver to
Landlord, to the extent not previously received by Landlord, evidence of
payment, contractors' affidavits and full and final waivers of all liens
for labor, services or materials. All alterations, improvements and
additions to the Premises, whether temporary or permanent in character,
made or paid for by Landlord or Tenant shall without compensation to Tenant
become Landlord's property upon installation. All such alterations,
improvements and additions shall, unless Landlord had expressly requested
or approved their removal when Landlord consented to their installation (in
which case Tenant shall remove the same as provided in Section 17), remain
Landlord's property upon termination of this Lease by lapse of time or
otherwise
- 10 -
and shall be relinquished to Landlord in good condition, ordinary wear and
tear excepted.
10. COVENANT AGAINST LIENS
Tenant covenants and agrees not to suffer or permit any lien of mechanics
or materialmen or others to be placed against the Complex or the Premises
with respect to work or services claimed to have been performed for or
materials claimed to have been furnished to Tenant or the Premises. In case
any such lien attaches, Tenant covenants and agrees to cause it to be
immediately released and removed of record, unless Tenant has a good faith
dispute as to the validity of such lien in which case Tenant may contest
such lien by appropriate proceedings so long as Tenant deposits with
Landlord a bond or other security in an amount reasonably acceptable to
Landlord which may be used by Landlord to release such lien if Tenant's
contest is abandoned or is unsuccessful. Upon final determination of any
permitted contest, Tenant shall immediately pay any judgment rendered and
cause the lien to be released.
11. INSURANCE.
A. Waiver of Subrogation
Landlord and Tenant each hereby waive any and every claim for recovery
from the other for any and all loss of or damage to the Complex or the
Premises or to the contents thereof, which loss or damage is of a type
insurable under "all risk" hazard insurance policies available at the
time such loss or damage was sustained. Inasmuch as this mutual waiver
will preclude the assignment of any such claim by subrogation (or
otherwise) to an insurance company (or any other person), Landlord and
Tenant each agree to give written notice of the terms of this mutual
waiver to each insurance company which has issued, or in the future
may issue, a policy of hazard insurance to such party. Each party
shall also have each such insurance policy properly endorsed, if
necessary, to prevent the invalidation of such insurance coverage by
reason of such waiver. If Landlord adopts a plan of self-insurance
with respect to those portions of the Building Landlord may be
obligated to repair or restore under Section 12A (and Landlord
reserves the right to adopt such a plan) Landlord's waiver of claims
contained in the first sentence of this paragraph will continue to be
effective as long as Tenant's waiver of subrogation remains in effect.
B. Coverage
Tenant agrees, at its cost, to obtain and keep in force during the
Term the following described insurance, provided that Landlord may
from time to time require reasonable increases in the limits set forth
below:
(1) Liability Insurance. Comprehensive general liability insurance
with combined single limits of not less than $2,000,000 for
personal injury and property damage occurring in or about or
related to the use of the Premises and assumed contractual
liability with respect to Tenant's obligations under Section 13,
and employer's liability Insurance with limits of at least
$500,000.
(2) Tenant's Personal Property. An "all risk" hazard insurance policy
in the amount equal to the full replacement cost of Tenant's
office furniture, trade fixtures, office equipment, merchandise
and all other items of Tenant's property on the Premises.
(3) Worker's Compensation and Tenant's Contractors. A worker's (or
workmen's) compensation insurance policy in at least the amount
required by law. In addition, Tenant shall require any of
Tenant's contractors that will perform work on the Premises to
deliver to
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Landlord, prior to the commencement of such work, certificates of
insurance evidencing that such contractors carry contractor's
liability insurance in the amount of at least $500,000 and
worker's (or workmen's) compensation insurance in at least the
amount required by law.
(4) Form of Policies. All policies evidencing the coverage required
under this Section 11B shall be issued by carriers with a rating
of A-VII or better by Best's Key Rating Guide and licensed to do
business in the State of Colorado and shall provide that (a) the
coverage is primary and non-contributing to any insurance that
may be carried by Landlord; (b) the coverage cannot be canceled,
modified, reduced, or otherwise materially changed except after
thirty (30) days' prior written notice to Landlord; and (c)
Landlord, Homart Holding Company of Delaware Inc., Homart
Development Co. and any other person or entity that Landlord may
designate from time to time as additional insureds (except that
such parties need not be so named in Tenant's worker's
compensation policy). Tenant shall furnish Landlord with true
copies of all policies or certificates of insurance evidencing
such coverage promptly on receipt.
C. Avoid Action Increasing Rates
Tenant shall comply with all applicable laws and ordinances, all
orders and decrees of court and all requirements of other governmental
authorities, and shall not, directly or indirectly, make any use of
the Premises which may thereby be prohibited or be dangerous to person
or property or which may jeopardize any insurance coverage, or may
increase the cost of insurance or required additional insurance
coverage. In no event shall Tenant permit in the Premises flammables
such as gasoline, turpentine, kerosene, naphtha and benzene, or
explosives or any other article of intrinsically dangerous nature, and
in no event shall Tenant, its agents, employees or invitees bring such
flammables or other articles into the Complex. If by reason of the
failure of Tenant to comply with the provisions of this Section 11C,
(i) any insurance coverage is jeopardized, Landlord shall have the
option to terminate this Lease or (ii) insurance premiums are
increased, Landlord may require Tenant to make immediate payment of
the increased insurance premium as additional Rent hereunder.
12. FIRE OR CASUALTY.
A. Restoration - Cancellation upon Major Damage
If the Premises or the Building shall be damaged by fire or other
casualty Landlord shall, promptly after learning of such damage,
notify Tenant in writing of Landlord's estimate of the time necessary
to repair or restore such damage. If Landlord reasonably estimates
that repair or restoration of all of such damage that was caused to
the Premises or to any other portion of the Building necessary for
Tenant's occupancy cannot be completed within one hundred eighty (180)
days from the date of such damage, then Tenant shall have the option
to terminate this Lease. If such damage, in Landlord's opinion, has
rendered all or a substantial portion of the Premises or the Building
untenantable, Landlord shall have the option to terminate this Lease.
Any option to terminate granted hereunder must be exercised by written
notice to the other party given within ten (10) days after Landlord
delivers to Tenant the notice of estimated repair time. If either
party exercises its option to terminate this Lease, the Term shall
expire and this Lease shall terminate ten (10) days after notice of
termination is delivered; provided, however, that Rent for the period
commencing on the date of such
- 12 -
damage until the date this Lease terminates shall be reduced to the
reasonable value of any use or occupation of the Premises by Tenant
during such period. If neither party so terminates this Lease, then
Landlord shall repair and restore such damage with reasonable
promptness, subject to delays for insurance adjustments and delays
caused by matters beyond Landlord's control. Landlord shall have no
liability to Tenant and Tenant shall not be entitled to terminate this
Lease in the event such repairs and restoration are not in fact
completed within the time period estimated by Landlord.
B. Rent Abatement
In the event any fire or casualty damage renders the Premises
untenantable and if this Lease shall not be terminated pursuant to
Section 12A hereof by reason of such damage, then Rent shall xxxxx
during the period beginning with the date of such damage and ending
with the date when Landlord has substantially completed its
obligations under this Section 12. Such abatement shall be in an
amount bearing the same ratio to the total amount of Rent for such
period as the untenantable portion of the Premises bears to the entire
Premises. In no event will Landlord be liable for any inconvenience or
annoyance to Tenant or injury to the business of Tenant resulting in
any way from damage caused by fire or other casualty or the repair of
such damage, provided however that, to the extent Tenant remains in
possession of a portion of the Premises, Landlord will take all
reasonable steps to minimize the disruption to Tenant's business and
use of such portion of the Premises during the period of repair.
13. WAIVER OF CLAIMS - INDEMNIFICATION
(a) To the extent not prohibited by law, Landlord and its parent and
affiliated corporations, its and their partners, venturers, directors,
officers, agents, servants and employees shall not be liable for, and
Tenant waives all claims for, any damages to person or property, or
resulting from the loss of use thereof, or any loss of profits or damages
from business interruption, sustained by Tenant or by Tenant's officers,
agents, servants or employees due to the Building or the Complex or any
part thereof or any appurtenances thereof becoming out of repair, or due to
the happening of any accident or event in or about the Building or Complex,
or due to any act or neglect of any tenant or occupant of the Building or
Complex or of any other person. This provision shall apply particularly
(but not exclusively) to damage caused by gas, electricity, snow, frost,
steam, sewage, sewer gas or odors, fire, water or by the bursting or
leaking of pipes, faucets, sprinklers, plumbing fixtures, and windows, and
shall apply without distinction as to the person whose act or neglect was
responsible for the damage and whether the damage was due to any of the
causes specifically enumerated above or to some other cause of an entirely
different kind. Tenant further agrees that all personal property upon the
Premises, or upon loading docks, receiving and holding areas or parking
areas, of the Building or the Complex, shall be at the risk of Tenant only,
and that Landlord shall not be liable for any loss or damage thereto or
theft thereof. Without limitation of any other provisions hereof and to the
extent not prohibited by law, Tenant agrees to defend, protect, indemnity
and save harmless Landlord and its parent and affiliated corporations, its
and their partners, venturers, directors, officers, agents, servants and
employees from and against all fines, suits, costs, demands, actions,
judgments, claims, liabilities, losses, damages or expenses ("Liabilities")
made or asserted against or incurred by an Indemnitee and attributable to
the negligence, willful misconduct or breach of this Lease by Tenant or its
officers, servants, agents, employees, contractors, suppliers, workmen or
invitees. If any such proceeding is brought against an Indemnitee, Tenant
will retain counsel reasonably satisfactory to Landlord to defend the
Indemnitee at Tenant's sole cost and
- 13 -
expense. All such costs and expenses, including attomeys' fees and court
costs, shall be a demand obligation owing by Tenant to Landlord. Tenant's
obligations under this Section shall survive the termination or expiration
of this Lease;
(b) Landlord will Indemnify and hold and save Tenant, its affiliates and
their respective Employees harmless from all Liabilities to the extent such
Liabilities shall arise directly and solely from Landlord's gross negligence or
intentional act or omission. If any such proceeding is brought against an
indemnitee, Landlord will retain counsel reasonably satisfactory to Tenant to
defend the indemnitee at Landlord's sole cost and expense. All such costs and
expenses, including reasonable attorneys' fees and court costs, shall be a
demand obligation owing by Landlord to Tenant. Landlord's obligations under this
Section shall survive the termination or expiration of this Lease.
14. NONWAIVER
No waiver of any provision of this Lease shall be implied by any failure of
Landlord to enforce any remedy on account of the violation of such
provision even if such violation be continued or repeated subsequently, and
no express waiver shall affect any provision other than the one specified
in such waiver and that one only for the time and in the manner
specifically stated.
15. CONDEMNATION
If the whole or substantially the whole of the Building, the Premises or
the parking facilities in the Complex is taken for any public or
quasi-public use under any governmental law, ordinance or regulation or by
right of eminent domain or is sold to the condemning authority in lieu of
condemnation, then this Lease will terminate as of the date when physical
possession of the Building, the Premises or the parking facilities in the
Complex is taken by the condemning authority. If less than the whole or
substantially the whole of the Building, the Premises or the parking
facilities in the Complex is thus taken or sold and if, after such partial
taking, in Landlords' reasonable judgment, alteration or reconstruction of
the Complex is not economically justified, Landlord (whether or not the
Premises are affected thereby) may terminate this Lease by giving written
notice to Tenant within sixty (60) days after the taking. If over fifty
percent (50%) of the Premises is thus taken or sold, Tenant may terminate
this Lease if, and only if, in Tenant's reasonable judgment, the Premises
cannot be operated by Tenant in an economically viable fashion because of
such partial taking. Such termination by Tenant must be exercised by
written notice to Landlord given not later than sixty (60) days after
Tenant is notified of the taking of the Premises. Termination by Landlord
or Tenant shall be effective as of the date when physical possession of the
applicable portion of the Complex, the Building or the Premises is taken by
the condemning authority. If neither Landlord nor Tenant elects to
terminate this Lease upon a partial taking of a portion of the Premises,
the Rent payable under this Lease will be diminished by an amount allocable
to the portion of the Premises which was so taken or sold. If this Lease is
not terminated upon a partial taking, Landlord will, at Landlord's sole
expense, promptly restore and reconstruct the Complex, the Building and the
Premises to substantially their former condition to the extent that the
same may be feasible. Landlord in no event shall be required to spend for
such restoration or reconstruction an amount in excess of the net amount
received by Landlord as compensation or damages for the part of the
Complex, the Building or the Premises so taken. As between the parties to
this Lease, Landlord will be entitled to receive all of the compensation
awarded upon a taking of any part or all of the Complex, the Building or
the Premises including any award for the value of any unexpired term of
this Lease and Tenant will not be entitled to and expressly waives all
claim to any compensation for the unexpired term of this Lease. The
foregoing shall not in any way restrict Tenant from asserting a claim in a
separate proceeding against the condemning authority (if and to the extent
permitted by law) for any damages resulting from the taking of Tenant's
trade
- 14 -
fixtures or for moving expenses or business relocation expenses incurred as
a result of such condemnation.
16. ASSIGNMENT AND SUBLETTING
Tenant shall not, without the prior written consent of Landlord, (i)
assign, convey or mortgage this Lease or any interest hereunder; (ii)
suffer to occur or permit to exist any assignment of this Lease, or any
lien upon Tenant's interest, voluntarily, involuntarily or by operation of
law; (iii) sublet the Premises or any part thereof; or (iv) permit the use
of the Premises by any parties other than Tenant and its employees. For
purposes of the preceding sentence, any change in ownership of Tenant or of
any guarantor of Tenant's obligations under this Lease (a "Guarantor")
shall be deemed to be an assignment of this Lease; a "change in ownership"
shall be deemed to have occurred (a)(i) for a publicly traded corporation,
when there is a change of effective control; (ii) for any other entity, in
the event of any circumstance where the voting interest of any party or
group of parties increases or decreases by more than one-third of the
entire voting interest; or (b) upon the distribution of over fifty percent
(50%) of any entity's assets, or if the value of assets sold (net of
undistributed consideration received) exceeds fifty percent (50%) of asset
value. Landlord's consent to any assignment, subletting or transfer shall
not constitute a waiver of Landlord's right to withhold its consent to any
future assignment, subletting or transfer.
Tenant shall give Landlord written notice of any proposed sublease or
assignment which notice shall contain the name of the proposed sublessee or
assignee and proposed principal terms thereof. With respect to any proposed
assignment of all of Tenant's interest under this Lease or any proposed sublease
of all of the Premises, which proposed assignment or sublease is to occur
subsequent to eighteen months after the Commencement Date, Landlord agrees that
it shall not unreasonably withhold its consent to such assignment or sublease;
provided, however, that reasonable grounds for the withholding of consent shall
include, without limitation, the proposed assignee's or subtenant's insufficient
financial capacity or business experience to perform Tenant's obligations under
this Lease or its poor business reputation.
Upon any assignment or subletting by Tenant, (i) the original Tenant and
any Guarantor shall not be released from any covenant or obligation under this
Lease, and (ii) Landlord shall be entitled to receive and collect, either from
Tenant or directly from the assignee or subtenant, all of the consideration, if
any, that the assignee or subtenant is required to pay for the use and enjoyment
of Tenant's rights under this Lease in addition to the amounts payable by Tenant
to Landlord hereunder (whether payable by such assignee or subtenant in monthly
installments, in a lump sum, or otherwise).
17. SURRENDER OF POSSESSION
Upon the expiration of the Term or upon the termination of Tenant's
right of possession, Tenant shall forthwith surrender the Premises to
Landlord in good order, repair and condition, ordinary wear and damage by
fire or other casualty excepted. All alterations, improvements and
additions to the Premises, made or paid for by Landlord or Tenant, shall
without compensation to Tenant become Landlord's property upon
installation. Except as provided in Section 9 to the contrary, all such
alterations, improvements and additions shall remain Landlord's property at
the termination of this Lease by lapse of time or otherwise and shall be
relinquished to Landlord in good condition, ordinary wear and damage by
fire or other casualty excepted. Tenant agrees to remove at the termination
of the Term or of its right of possession the following items of property:
office furniture, trade fixtures, office equipment and all other items of
Tenant's property or temporary improvements on the Premises, and Tenant
shall pay to Landlord upon demand the cost of repairing any damage to the
Premises and to the Building caused by any such removal. If Tenant shall
fail or
- 15 -
refuse to remove any such property from the Premises, Tenant shall be
conclusively presumed to have abandoned the same, and title thereto shall
thereupon pass to Landlord without any cost either by set-off, credit,
allowance or otherwise, and Landlord may at its option accept the title to
such property or at Tenant's expense may (i) remove the same or any part in
any manner that Landlord shall choose, and (ii) store, destroy or otherwise
dispose of the same without incurring liability to Tenant or any other
person.
18. PERSONAL PROPERTY.
A. Responsibility
Tenant shall be solely responsible for all costs and expenses related
to personal property used or stored in the Premises. Without limiting
the foregoing, Tenant shall pay any taxes or other governmental
impositions levied upon or assessed against such personal property, or
upon Tenant for the ownership or use of such personal property, on or
before the due date for payment thereof. Such personal property taxes
or impositions are not included in Taxes or the Tax Base Amount.
B. Landlord's Lien
In addition to any statutory landlord's lien and in order to secure
payment of all Rent and other sums of money becoming due from Tenant,
and to secure payment of any damages or loss which Landlord may suffer
by reason of the breach by Tenant of any covenant, agreement or
condition contained in this Lease, Tenant hereby grants to Landlord a
security interest in and an express contractual lien upon all goods,
wares, equipment, fixtures, furniture, improvements and other personal
property of Tenant presently or which may hereafter be situated on the
Premises and all Proceeds therefrom. Tenant's Personal property may
not be removed from the Premises without Landlord's consent until all
arrearages in Rent as well as any and all other sums of money then due
to Landlord have been paid and all the Covenants, agreements and
conditions imposed upon Tenant have been fully Complied with and
performed by it. Upon the occurrence of an "Event of Default" (as
defined in Section 24A), in addition to any other available remedies,
Landlord shall have all the rights of a secured party under the
Colorado Uniform Commercial Code with respect to the property covered
by the security interest herein granted. Upon request by Landlord,
Tenant agrees to execute and deliver to Landlord such financing
statements as may be required to perfect the security interest of
Landlord in the aforementioned Property and proceeds thereof.
19. HOLDING OVER
If Tenant shall hold over after the expiration of the Term or of Tenant's
right of possession, without written agreement providing otherwise, Tenant
shall be deemed to be a tenant from month to month, at a monthly Base Rent,
payable in advance, equal to two hundred percent (200%) of monthly Base
Rent payable during the last year of the Term, and Tenant shall be bound by
all of the other terms, covenants and agreements of this Lease as the same
may apply to a month-to-month tenancy. Nothing contained herein shall be
Construed to give Tenant the right to hold over at any time, and Landlord
may exercise any and all remedies at law or in equity to recover possession
of the Premises, as well as any damages incurred by Landlord, due to
Tenant's failure to vacate the Premises and deliver possession to Landlord
as herein provided.
20. ESTOPPEL CERTIFICATE
Tenant agrees that from time to time upon not less than ten (10) days'
prior request by Landlord, Tenant will deliver to Landlord a statement in
writing certifying (i) that this Lease is unmodified and in full force and
effect (or if there have been modifications that the Lease as modified is
in full
- 16 -
force and effect); (ii) the dates on which the Commencement Date occurred
and the Termination Date will occur; (iii) the dates on which Tenant began
paying Rent and that no Rent has been paid in advance of the required
payment dates; (iv) that neither the Tenant nor the Landlord is in default
under any provision of this Lease, or, if a default exists, the nature
thereof in detail; (v) that Tenant has no existing defenses or off-sets to
the enforcement of the Lease or, if any, specifying same; and (vi) provided
such events have occurred, that Tenant has accepted and occupied the
Premises and that the Premises have been completed in accordance with the
terms hereof. It is intended that any such statement may be relied upon by
any prospective purchaser or tenant of the Building, any mortgage or
prospective mortgagees thereof, or any prospective assignee of any mortgage
thereon.
21. OBLIGATIONS TO MORTGAGEES.
A. Subordination
At Landlord's option, this Lease may be made subject and subordinate
to future ground or underlying leases of the Land and to the lien of
any mortgages or trust deeds, hereafter in force against the Land,
Complex or Building, or any of them, and to all renewals, extensions,
modifications, consolidation and replacements thereof, and to all
advances made or hereafter to be made upon the security of such
mortgages or trust deeds. Tenant shall at Landlord's request execute
such further instruments or assurances as Landlord may reasonably deem
necessary to evidence or confirm the subordination of this Lease to
any such mortgages, trust deeds, ground leases or underlying leases,
or, if requested by any mortgagee or ground lessor, to make Tenant's
interest in this Lease superior to the interest of such mortgagee or
ground lessor. It is further agreed that upon the request of the
mortgagee or trustee, if the mortgage or trust deed shall be
foreclosed, or the transferee if the Building shall be conveyed in
lieu of foreclosure, Tenant will attorn, as Tenant under this Lease,
to the purchaser at any foreclosure sale or transferee under such
conveyance, or upon request of the ground lessor, if any ground or
underlying lease shall be terminated, Tenant will attorn, as Tenant
under this Lease, to the ground lessor, and, in either case, Tenant
will execute such instruments as may be necessary or appropriate to
evidence such attornment.
B. Notice to Landlord and Mortgagee
In the event of any act or omission by Landlord which would give
Tenant the right to damages from Landlord or the right to terminate
this Lease, Tenant will not xxx for such damages or exercise any such
right to terminate until (i) it shall have given written notice of the
act or omission to Landlord and to the holder(s) of the indebtedness
or other obligations secured by any mortgage or deed of trust
affecting the Premises or of any ground or underlying lease, if the
name and address of such holder(s) have been furnished to Tenant, and
(ii) the lesser of thirty (30) days or the applicable grace period
hereunder for remedying the act or omission has elapsed following the
giving of the notice, during which time Landlord and such holder(s),
or either of them, their agents or employees, will be entitled to
enter upon the Premises and do therein whatever may be necessary to
remedy the act or omission.
22. CERTAIN RIGHTS RESERVED BY LANDLORD
Landlord shall have the following rights, each of which Landlord may
exercise without notice to Tenant (except as expressly provided below) and
without liability to Tenant for damage or injury to property, person or
business on account of the exercise thereof, and the exercise of any such
rights shall not be deemed to constitute an eviction or disturbance of
Tenant's use or possession of the Premises and shall not give rise to any
claim for set-off or abatement of rent or any other claim, provided,
however,
- 17 -
that Landlord takes reasonable steps to minimize any disruption to Tenant's
business or use of the Premises:
(1) to change the name or street address of the Complex or the
Building, with notice to Tenant;
(2) to install, affix and maintain any and all signs on the exterior
and on the interior of the Building or anywhere on Land or in the
Complex (and Tenant agrees not to place or maintain any sign or
other advertising matter outside the Premises or inside the
Premises so as to be visible from outside the Premises);
(3) to decorate or to make repairs, alterations, additions, or
improvements, whether structural or otherwise, in and about the
Building or Complex, or any part thereof, and for such purposes
to enter upon the Premises, and, during the continuance of any of
such work, to temporarily close doors, entryways, public space
and corridors in the Building and to interrupt or temporarily
suspend services or use of facilities, all without affecting any
of Tenant's obligations hereunder, so long as Landlord has given
Tenant reasonable prior notice of any such actions in the
Premises (provided, however, that no such prior notice shall be
required in the case of emergency or suspected emergency).
Landlord shall take reasonable steps in connection with such
actions to minimize any disruption to Tenant's business or its
use of the Premises;
(4) to the extent permitted by law, to retain at all times, and to
use in appropriate instances, keys to all doors within and into
the Premises. Tenant agrees to purchase only from Landlord
additional duplicate keys as required, to change no locks, and
not to affix locks on doors without the prior written consent of
Landlord (notwithstanding the provisions for Landlord's access to
portions of the Premises, Tenant relieves and releases the
Landlord of all responsibility arising out of theft, robbery and
pilferage). Upon the expiration of the Term or of Tenant's right
to possession, Tenant shall return all keys to Landlord and shall
disclose to Landlord the combination of any safes, cabinets or
vaults left in the Premises;
(5) to designate Building standard window coverings for all windows
in the Building and to designate and approve, prior to
installation, all types of additional window shades, blinds or
draperies, if any;
(6) to approve the weight, size and location of safes, vaults and
other heavy equipment and articles in and about the Premises and
the Building (so as not to exceed the legal live load per square
foot designated by the structural engineers for the Building),
and to require all such items and furniture and similar items to
be moved into or out of the Building and Premises only at such
times and in such manner as Landlord shall direct in writing.
Movements of Tenant's property into or out of the Building and
within the Building are entirely at the risk and responsibility
of Tenant and Landlord reserves the right to require permits
before allowing any property to be moved into or out of the
Building;
(7) to show the Premises to prospective tenants at reasonable hours
and upon reasonable notice, which such notice may be given by
- 18 -
telephone to Tenant's office manager or via facsimile
transmission during the last six months of the Term; and
(8) to erect, use and maintain unexposed pipes, ducts, wiring and
conduits, and appurtenances thereto, in and through the Premises.
23. RULES AND REGULATIONS
Tenant covenants and agrees to keep and observe the rules and regulations
attached to this Lease as Exhibit D and made a part hereof. Landlord shall
have the right from time to time to amend such rules and regulations and to
prescribe additional rules and regulations which, in its sole judgment, may
be desirable for the use, entry, operation and management of the Premises,
the Building and the Complex, each of which additional rules and
regulations shall be come a part of this Lease. Tenant shall comply with
such rules and regulations provided, however, that such rules and
regulations shall not contradict or abrogate any right or privilege herein
expressly granted to Tenant.
24. DEFAULT AND REMEDIES.
A. Events of Default
Each of the following shall constitute an "Event of Default" under
this Lease:
(1) Failure to Pay Rent or Other Amounts. If Tenant fails to pay when
due, Base Rent, Additional Rent, or any other Rent or amounts
payable by Tenant under the terms of this Lease, and such failure
shall continue for five (5) days after written notice from
Landlord to Tenant of such failure, provided however, that with
respect to Base Rent and Additional Rent, Tenant shall not be
entitled to more than two notices of such failure during any
Calendar Year and if, after two such notices are given in any
Calendar Year, Tenant fails, during such Calendar Year, to pay
any such amounts when due, such failure shall constitute an Event
of Default without further notice by Landlord or additional cure
period.
(2) Violation of Lease Terms. If Tenant breaches or fails to comply
with any provision of this Lease applicable to Tenant, and such
breach or failure to comply is not covered by the provisions of
Section 24A(1) above and continues for a period of twenty (20)
days after notice thereof by Landlord to Tenant, or, if such
breach or failure to comply cannot be reasonably cured within
such twenty (20)-day period, if Tenant shall not in good faith
commence to cure such breach or failure to comply within such
twenty (20)-day period or shall not diligently complete such cure
within sixty (60) days after such notice from Landlord; provided,
however, that if such breach or failure to comply causes or
results in (i) a dangerous condition on the Premises, Building or
Complex, (ii) any insurance coverage carried by Landlord or
Tenant with respect to the Premises, Building or Complex being
jeopardized, or (iii) a material disturbance to another tenant of
the Complex, then an Event of Default shall exist if such breach
or failure to comply is not cured as soon as reasonably possible
after notice thereof by Landlord to Tenant, and in any event is
not cured within thirty (30) days after such notice. For purposes
of this Section 24A(2), financial inability shall not be deemed a
reasonable ground for failure to immediately cure any breach of,
or failure to comply with, the provisions of this Lease.
(3) Nonoccurrence of Demised Premises. If Tenant shall fail to occupy
and use the Premises within fifteen (15) days after commencement
of
- 19 -
the Term or shall leave the Premises unoccupied for fifteen (15)
consecutive days or shall vacate and abandon the Premises.
(4) Transfer of Interest Without Consent. If Tenant's interest under
this Lease or in the Premises shall be transferred to or pass to
or devolve upon any other party in violation of the provisions of
Section 16.
(5) Execution and Attachment Against Tenant. If Tenant's interest
under this Lease or in the Premises shall be taken upon execution
or by other process of law directed against Tenant, or shall be
subject to any attachment at the instance of any creditor or
claimant against Tenant and said attachment shall not be
discharged or disposed of within fifteen (15) days after the levy
thereof.
(6) Bankruptcy or Related Proceedings. If Tenant shall file a
petition in bankruptcy or insolvency or for reorganization or
arrangement under the bankruptcy laws of the United States or
under any similar act of any state, or shall voluntarily take
advantage of any such law or act by answer or otherwise, or shall
be dissolved or shall make an assignment for the benefit of
creditors or if involuntary proceedings under any such bankruptcy
or insolvency law or for the dissolution of Tenant shall be
instituted against Tenant or a receiver or trustee shall be
appointed for the Premises or for all or substantially all of the
property of Tenant, and such proceedings shall not be dismissed
or such receivership or trusteeship vacated within sixty (60)
days after such institution or appointment.
B. Landlord's Remedies
Time is of the essence hereof. Upon the occurrence any Event of
Default, Landlord shall have the right, at Landlord's election, then
or at time thereafter, to exercise any one or more of the following
remedies:
(1) Cure by Landlord. Upon an Event of Default, Landlord may, at
Landlord's option, but without obligation to do so, and without
releasing Tenant from any obligations under this Lease, make any
payment or take any action as Landlord may deem necessary or
desirable to cure any such Event of Default in such manner and to
such extent as Landlord may deem necessary or desirable. Landlord
may do so without demand on, or written notice to, Tenant and
without giving Tenant an opportunity to cure such Event of
Default. Tenant covenants and agrees to pay to Landlord, within
ten (10) days after demand, all advances, costs and expenses of
Landlord in connection with the making of any such payment or the
taking of any such action, including reasonable attorney's fees,
together with interest at the rate described in Section 29B, from
the date of payment of any such advances, costs and expenses by
Landlord.
(2) Termination of Lease and Damages. Upon an Event of Default,
Landlord may terminate this Lease, effective at such time as may
be specified by written notice to Tenant, and demand (and, it
such demand is refused, recover) possession of the Premises from
Tenant. Tenant shall remain liable to Landlord for damages in an
amount equal to the Base Rent, Additional Rent and other Rent and
sums which would have been owing by Tenant hereunder for the
balance of the Term, had this Lease not been terminated, less the
net proceeds, if any, of any reletting of the Premises by
Landlord
- 20 -
subsequent to such termination, after deducting all Landlord's
expenses in connection with such recovery of possession or
reletting. Landlord shall be entitled to collect and receive such
damages from Tenant on the days on which the Base Rent,
Additional Rent and other Rent and amounts would have been
payable if this Lease and not been terminated. Alternatively, at
the option of Landlord, Landlord shall be entitled to recover
forthwith from Tenant, as damages for loss of the bargain and not
as a penalty, an aggregate sum which, at the time of such
termination of this Lease, represents the present value of the
excess, if any of (a) the aggregate of the Base Rent, Additional
Rent and all other Rent and sums payable by Tenant hereunder that
would have accrued for the balance of the Term (such aggregate
shall be calculated by assuming that the monthly installment of
Additional Rent due for the month in which termination occurs
shall remain the same for the balance of the Calendar Year in
which termination occurs and that the total amount of Additional
Rent payable for the succeeding Calendar Years remaining in the
Term if this Lease had not been terminated shall increase by
eight percent (8%) per Calendar Year over the amount of
Additional Rent payable for the Calendar Year in which
termination occurs), over (b) the amount, if any, of such Base
Rent, Additional Rent and other Rent and sums which Tenant
establishes Landlord can reasonably expect to recover by
reletting the Premises for the remainder of the Term, taking into
consideration loss of rent while finding a new tenant, tenant
improvements and rent abatements necessary to secure a new
tenant, leasing brokers' commissions and other costs which
Landlord might incur in leasing the Premises to a new tenant plus
any other sum of money and damages owed by Tenant to Landlord for
events or actions occurring prior to the date of termination.
Such present value shall be calculated at the rate commonly
called the discount rate for ninety (90)-day commercial paper in
effect at the Federal Reserve Bank of Chicago on the date of
termination of this Lease.
(3) Repossession and Reletting. Upon an Event of Default, Landlord
may reenter and take Possession of the Premises or any part
thereof, without demand or notice, and repossess the same and
expel Tenant and any party claiming by, under or through Tenant,
and remove the effects of both using such force for such purposes
as may be necessary, without being liable for prosecution on
account thereof or being deemed guilty of any manner of trespass,
and without prejudice to any remedies for arrears of rent or
right to bring any proceeding for breach of covenants or
conditions. No such reentry or taking possession of the Premises
by Landlord shall be construed as an election by Landlord to
terminate this Lease unless a written notice of such intention is
given to Tenant. No notice from Landlord hereunder or under a
forcible entry and detainer statute or similar law shall
constitute an election by Landlord to terminate this Lease unless
such notice specifically so states. Landlord reserves the right,
following any reentry or reletting, to exercise its right to
terminate this Lease by giving Tenant such written notice, in
which event the Lease will terminate as specified in said notice.
After recovering possession of the Premises, Landlord may, from
time to time, but shall not be obligated to, relet the Premises,
or any part thereof, for the account of Tenant, for such term or
terms and on such conditions
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and upon such other terms as Landlord, in its discretion, may
determine Landlord may make such repairs, alterations or
improvements as Landlord may consider appropriate to accomplish
such reletting, and Tenant shall reimburse Landlord upon demand
for all costs and expenses, including attorneys' fees, which
Landlord may incur in connection with such reletting. Landlord
may collect and receive the rents for such reletting but Landlord
shall in no way be responsible or liable for any failure to relet
the Premises, or any part thereof, or for many failure to collect
any rent due upon such reletting. Notwithstanding Landlords
recovery of possession of the Premises, Tenant shall continue to
pay on the dates herein specified, the Base Rent, Additional Rent
and other Rent and amounts which would be payable hereunder if
such repossession had not occurred, less a credit for the net
amounts, if any, actually received by Landlord through any
reletting of the Premises.
(4) Landlord's Bankruptcy Remedies. Nothing contained in this Lease
shall limit or prejudice the right of Landlord to prove and
obtain as liquidated damages in any bankruptcy, insolvency,
receivership, reorganization or dissolution proceeding, an amount
equal to the maximum allowable by any statute or rule or law
governing such proceeding in effect at the time when such damages
are to be proved, whether or not such amount be greater, equal or
less than the amounts recoverable, either as damages or rent,
under this Lease.
Exercise of any of the remedies of Landlord under this Lease shall not
prevent the concurrent or subsequent exercise of any other remedy provided for
in this Lease or otherwise available to Landlord at law or in equity.
25. EXPENSES OF ENFORCEMENT
Tenant shall pay upon demand all Landlord's costs, charges and expenses,
including the fees and out-of-pocket expenses of counsel, agents and others
retained by Landlord, incurred in successfully enforcing Tenant's
obligations hereunder. Landlord shall pay upon demand all Tenants costs,
charges and expenses, including the fees and out-of-pocket expenses of
counsel, agents and others retained by Tenant, incurred in successfully
enforcing Landlord's obligations hereunder.
26. COVENANT OF QUIET ENJOYMENT
Landlord covenants that Tenant, on paying the Rent, charges for services
and other payments herein reserved, and, on keeping, observing and
performing all the other terms, covenants, conditions, provisions and
agreements herein contained on the part of Tenant to be kept, observed, and
performed, shall, during the Term, have quiet and peaceable possession of
the Premises subject to the terms, covenants, conditions, provisions, and
agreements hereof, and such possession shall not be disturbed by Landlord
or by any person claiming by, through or under Landlord.
27. SECURITY DEPOSIT
Tenant hereby deposits with Landlord as the "Security Deposit" the amount
set forth in Section 1A(10) as security for the prompt, full and faithful
performance by Tenant of each and every provision of this Lease and of all
obligations of Tenant hereunder.
(1) If Tenant fails to perform any of its obligations hereunder,
Landlord may use, apply or retain the whole or any part of the
Security Deposit for the payment of (i) any Rent or other sums of
money which Tenant may not have paid when due, (ii) any sum
expended by Landlord on Tenant's behalf in accordance with the
provisions of
- 22 -
this Lease, or (iii) any sum which Landlord may expend or be
required to expend by reason of Tenant's default, including,
without limitation, any damage or deficiency in or from the
reletting of the Premises as provided in Section 24. The use,
application or retention of the Security Deposit, or any portion
thereof, by Landlord shall not prevent Landlord from exercising
any other right or remedy provided by this Lease or by law (it
being intended that Landlord shall not first be required to
proceed against the Security Deposit) and shall not operate as a
limitation on any recovery to which Landlord may otherwise be
entitled. If any portion of the Security Deposit is used, applied
or retained by Landlord for the purposes set forth above, Tenant
agrees, within ten (10) days after the written demand therefor is
made by Landlord, to deposit cash with the Landlord in an amount
sufficient to restore the Security Deposit to its original
amount.
(2) If Tenant shall fully and faithfully comply with all of the
provisions of this Lease, the Security Deposit, or any balance
thereof, shall be returned to Tenant without interest within
sixty (60) days after the expiration of the Term or after the
date on which Tenant vacates the Premises, whichever shall occur
last. In the absence of evidence satisfactory to Landlord of any
permitted assignment of the right to receive the Security
Deposit, or of the remaining balance thereof, Landlord may return
the same to the original Tenant, regardless of one or more
assignments of Tenant's interest in this Lease or the Security
Deposit. In such event, upon the return of the Security Deposit,
or the remaining balance thereof, to the original Tenant,
Landlord shall be completely relieved of liability under this
Section 27 or otherwise with respect to the Security Deposit.
(3) Tenant acknowledges that Landlord has the right to transfer its
interest in the Land and Building and in this Lease and Tenant
agrees that in the event of any such transfer, Landlord shall
have the right to transfer the Security Deposit to the
transferee. Upon written acknowledgment of transferee's receipt
of such Security Deposit, Landlord shall thereby be released by
Tenant from all liability or obligation for the return of such
Security Deposit and Tenant agrees to look solely to such
transferee for the return of the Security Deposit.
28. REAL ESTATE BROKER
The Tenant represents that the Tenant has dealt with no broker in
connection with this Lease other than the broker or brokers, if any, named
in Section 1A(11) and that insofar as the Tenant knows, no other broker or
finder negotiated this Lease or is entitled to any commission or fee in
connection herewith. Tenant agrees to indemnify, defend and hold Landlord
free and harmless from and against all claims for broker's commissions or
finder's fees by any person claiming to have been retained by Tenant in
connection with this transaction, other than the broker or brokers, if any,
named in Section 1A(11).
29. MISCELLANEOUS.
A. Rights Cumulative
All rights and remedies of the parties under this Lease shall be
cumulative and none shall exclude any other rights and remedies
allowed by law.
B. Late Payment Penalty and Interest
Tenant covenants and agrees to pay to Landlord a late payment
penalty for any installment of Base Rent or
- 23 -
Additional Rent that Tenant fails to pay when due in an amount equal
to the greater of One Hundred and No/100 Dollars ($100.00) or five
percent (5%) of such installment provided that no such late payment
penalty shall be due in the event payment of such installment of Base
Rent or Additional Rent is made by Tenant within five (5) days after
written notice from Landlord to Tenant of Tenant's failure to pay such
rent when due. In addition, all Rent and other payments due hereunder
shall upon becoming due under this Lease and remaining unpaid when due
bear interest until paid at the rate of eighteen percent (18%) per
annum, compounded monthly.
C. Binding Effect
Each of the provisions of this Lease shall extend to and shall, as the
case may require, bind or inure to the benefit not only of Landlord
and of Tenant, but also of their respective successors or assigns,
provided this clause shall not permit any assignment by Tenant
contrary to the provisions of Section 16 hereof.
D. Lease Contains All Terms
All of the representations and obligations of the parties are
contained herein and no modification, waiver or amendment of this
Lease or of any of its conditions or provisions shall be binding upon
a party unless in writing signed by such party.
E. Delivery for Examination
Submission of the form of the Lease for examination shall not bind
Landlord in any manner, and no Lease or obligations of the Landlord
shall arise until this instrument is signed by both Landlord and
Tenant and delivery is made to each.
F. No Air Rights
No rights to any view or to light or air over any property, whether
belonging to Landlord or any other person, are granted to Tenant by
this Lease.
G. Modification of Lease
If any tender, purchaser or ground lessor requires, as a condition
to its lending funds or purchasing an interest in the Land, that
certain modifications be made to this Lease, which modifications will
not require Tenant to pay any additional amounts or otherwise change
materially the rights or obligations of Tenant hereunder, Tenant
shall, upon Landlord's request, execute appropriate instruments
effecting such modifications.
H. Substitution of Premises
At any time hereafter, Landlord may (upon thirty (30) days prior
notice) substitute for the Premises other premises in the Building or
the Additional Buildings (hereinafter referred to as the "New
Premises") provided that the New Premises shall be similar to the
Premises in area and usable for Tenant's purpose. If Tenant is already
in occupancy of the Premises, then Landlord shall also pay the
reasonable expenses of Tenant's moving from the Premises to the New
Premises and for improving the New Premises so that they are
substantially similar to the Premises. Such move shall be made during
evenings, weekends or otherwise so as to incur the least inconvenience
to Tenant.
I. Transfer of Landlord's Interest
Tenant acknowledges that Landlord has the right to transfer its
interest in the Land and Building and in this Lease, and Tenant agrees
that in the event of any such transfer Landlord shall automatically be
released from all liability under this Lease relating to periods after
the date of such transfer and Tenant agrees to look solely to such
transferee for the performance of Landlord's obligations hereunder
relating to periods after the date of such transfer.
- 24 -
J. Prohibition Against Recording
Neither this Lease, nor any memorandum, affidavit or other writing
with respect thereto, shall be recorded by Tenant or by anyone acting
through, under or on behalf of Tenant, and the recording thereof in
violation of this provision shall make this Lease voidable at
Landlord's election.
K. Captions
The captions of Sections and subsections are for convenience only and
shall not be deemed to limit, construe, affect or alter the meaning of
such Sections or subsections.
L. Only Landlord/Tenant Relationship
Nothing contained in this Lease shall be deemed or construed by the
parties hereto or by any third party to create the relationship of
principal and agent, partnership, joint venture or any association
between Landlord and Tenant, it being expressly understood and agreed
that neither the method of computation of Rent nor any other
provisions contained in this Lease nor any act of the parties hereto
shall be deemed to create any relationship between Landlord and Tenant
other than the relationship of landlord and tenant.
M. Bills
If Tenant falls to give Landlord specific written notice of its
objections within thirty (30) days after receipt of any xxxx or
invoice hereunder, such xxxx or invoice shall be deemed true and
correct and Tenant may not thereafter question the validity of such
xxxx or invoice or the underlying information or computations used to
determine the amount thereof.
N. Severability
If any provision of this Lease shall be declared to be void or
unenforceable by a final judicial or administrative order and if, in
Landlord's judgment, such provision was not a material consideration
for Landlord's execution of this Lease, the Lease shall continue in
full force and effect, except that the void or unenforceable provision
shall be deemed to be deleted from this Lease. If such provision was a
material consideration, Landlord may terminate this Lease on 30 days
prior written notice to Tenant.
O. Jury Trial
Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by Landlord or Tenant against the
other with respect to the following issues: (i) the insolvency or
bankruptcy of Landlord or Tenant; (ii) the assignment of this Lease by
Landlord or Tenant or the subletting of all or any portion of the
Premises by Tenant; and (iii) the integrity of the Building's
structural, electrical, or mechanical systems.
P. Authority to Bind
The individuals signing this Lease on behalf of Landlord and Tenant
hereby represent and warrant that they are empowered and duly
authorized to bind the Landlord or the Tenant, as the case may be, to
this Lease in accordance with its terms.
Q. Covenants Independent
It is the intent of the parties that this Lease be construed as if
the covenants herein between Landlord and Tenant are independent and
not dependent and that the Rent shall be payable without offset,
reduction or abatement for any cause except as otherwise specifically
provided in this Lease.
R. Business Days and Hours; Holidays
"Business days" means Monday through Friday (except holidays); "normal
business hours" means 8:00 a.m. to 6:00 p.m. on business days; and
"holidays" means those days designated by the government of the United
States as the holidays for New Years' Day,
- 25 -
Memorial Day, Independence Day, Labor Day, Thanksgiving Day and
Christmas Day, and such other holidays as may be designated in the
Rules and Regulations.
S. Force Majeure
When a period of time is herein prescribed for action to be taken by
Landlord, Landlord shall not be liable or responsible for, and there
is excluded from the computation for any such period of time, any
delays due to strikes, riots, acts of God, shortages of labor or
materials, war, governmental laws, regulations or restrictions or any
other cause of any kind whatsoever which are beyond the control of
Landlord. Subject to the preceding sentence, time is of the essence of
every part of this Lease.
30. LIMITATIONS ON LANDLORD'S LIABILITY
Any liability for damages or breach or nonperformance by Landlord, or
arising out of the subject matter of this Lease or the relationship created
hereby, shall be collectible only out of Landlord's interest in the Complex
and no personal liability is assumed by, or at any time be asserted
against, Landlord, its parent and affiliated corporations, its and their
partners, venturers, directors, officers, agents, servants and employees,
or any of its or their successors or assigns; all such liability, if any,
being expressly waived and released by Tenant. If Landlord, in violation of
the terms of this Lease or the provisions of law, withholds, denies or
delays any consent which Tenant is required to obtain hereunder, Tenant may
seek specific performance but shall not be entitled to damages therefor.
Landlord's review, supervision, commenting on or approval of any aspect of
work to be done by or for Tenant (under the Tenant Construction Agreement,
Section 9 hereof, or otherwise) are solely for Landlord's protection and,
except as expressly provided, create no warranties or duties to Tenant or
to third parties.
31. NOTICES
All notices required or permitted under this Lease shall be in writing and
shall be deemed properly given and received (i) when actually given and
received if delivered in person; (ii) one business day after deposit with a
private courier or overnight delivery service, or (iii) two business days
after deposit in the United States mails, certified or registered mail with
return receipt requested, postage prepaid, addressed to the party to
receive the notice at, in the case of notices to Landlord, 00 Xxxx Xxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attn: Vice President/Office
Building Management, with a copy to Landlord at 00 Xxxx Xxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000-0000, Attn: General Counsel, and in the
case of notices to Tenant, the address set forth in the first paragraph of
this Lease if such notice is given prior to the Commencement Date and
Tenants address at the Premises if such notice is given on or after the
Commencement Date, or, in either case, at such other address as either
party may notify the other of in accordance with the terms hereof.
THIS LEASE SHALL NOT BE BINDING UPON OR ENFORCEABLE BY EITHER PARTY UNTIL
FULLY EXECUTED BY BOTH LANDLORD AND TENANT.
THIS LEASE IS THE ENTIRE AGREEMENT BETWEEN THE PARTIES CONCERNING THE
SUBJECT MATTER, SUPERSEDING ANY PRIOR AGREEMENTS AND WITHOUT ANY IMPLIED
AGREEMENTS, WARRANTIES OR UNDERSTANDINGS.
IN WITNESS WHEREOF, Landlord and Tenant have signed this Lease as of the
date first written above.
- 26 -
LANDLORD:
TENANT:
HD DELAWARE PROPERTIES, INC., TANNING TECHNOLOGY CORPORATION,
a Delaware corporation a Colorado corporation
By: By: /s/ Xxxxx X. Tanning
---------------------------- ----------------------------
Its: Vice President Its: President
---------------------------- ----------------------------
Landlord's Address: Tenant's Address:
HD Delaware Properties, Inc. 0000 Xxxx Xxxxxx Xxxxxx
55 West Monroe Street Suite 312
Suite 3100 Xxxxxx, Xxxxxxxx 00000
Xxxxxxx, Xxxxxxxx 00000 -------------------------------
Attention: Vice President
Office Building and
Multi-Use Development
Copy to: General Counsel
- 27 -
EXHIBIT A
METROPOINT
LEGAL DESCRIPTION OF THE LAND
PARCEL A
--------
A parcel of land in Xxxxxxx 0, Xxxxxxxx 0 Xxxxx, Xxxxx 67 West of the Sixth
Principal Meridian, City and County of Denver, State of Colorado, more
particularly described as follows:
Commencing at the south one-quarter corner of said Section 9; thence N 00
(degree)19'13" E, a distance of 1296.94 feet to a point of curvature; thence
along a curve to the left having a radius of 1,273.24 feet and a central angle
of 25(degree)29'43", an arc distance of 566.56 feet to a point of tangency;
thence N 25(degree)10'30" W and along the tangent to the aforementioned curve, a
distance of 313.16 feet to a point of curvature; thence along a curve to the
left having a radius of 1,637.02 feet and a central angle of 28 (degree) 30'18",
an arc distance of 814.43 feet; thence N 36(degree)19'12" E, a distance of 63.92
feet to a point of curvature; thence along a curve to the right having a radius
of 1,273.24 feet and a central angle of 27(degree)17'15", an arc distance of
606.39 feet; thence S 26(degree)23'33" E, a distance of 60.00 feet; thence N
63(degree)36'27" E, a distance of 151.72 feet to a point of curvature; thence
along a curve to the right having a radius of 1,086.58 feet and a central angle
of 07(degree)35'36", an arc distance of 144.00 feet to the TRUE POINT OF
BEGINNING, said True Point of Beginning also being the northwest corner of the
parcel of land described as the "DTC Office Site" in Exhibit A to that certain
instrument recorded in Book 2577 at page 669 in the Clerk and Recorder's Office
of the City and County of Denver (said True Point of Beginning also being on the
southerly right-of-way line of Tufts Avenue Parkway as platted by Denver
Technological Center, North, Filing No. 1 and recorded in Book 29 at page 56 in
the Clerk and Recorder's Office of the City and County of Denver); thence
southerly along the westerly line of said parcel the following eight (8)
courses;
(1) thence S 18(degree)47'57" E, a distance of 20.00 feet to a
point of curvature;
(2) thence along a curve to the right having a radius of 50.00 feet
and a central angle of 40(degree)19'56", an arc length of 35.20
feet to a point of reverse curvature;
(3) thence along a curve to the left having a radius of 62.27 feet
and a central angle of 38(degree)55'32", an arc distance of
42.31 feet to a point of tangency;
(4) thence S 17(degree)23'33" E, along said tangent a distance of
121.75 feet to a point of curvature;
(5) thence along a curve to the left having a radius of 75.00 feet
and a central angle of 42(degree)15' 44", an arc distance of
55.32 feet to a point of non-tangency;
(6) thence S 17(degree)23' 33" E, a distance of 233.39 feet;
(7) thence S 07(degree)43' 03" E, a distance of 20.29 feet;
A-1
(8) thence S 23(degree)31'25" E, a distance of 353.21 feet to a
point on a non-tangent curve, said point also being on the
northerly right-of-way line of Union Avenue Parkway;
thence southwesterly and westerly along said northerly right-of-way line of
Union Avenue Parkway the following four (4) courses:
(1) thence along a curve to the left, the beginning tangent of which
bears S 40(degree)07'43" W, having a radius of 1108.14 feet and a
central angle of 00(degree)48'13", an arc distance of 15.54
feet to a point of tangency;
(2) thence S 39(degree)19'30" W, along said tangent, a distance of
190.64 feet to a point of curvature;
(3) thence alone a curve to the right having a radius of 930.00 feet
and a central angle of 18(degree)27'46", an arc distance of
299.68 feet to a point of compound curvature;
(4) thence along a curve to the right having a radius of 101.50 feet
and a central angle of 97(degree)02'14", an arc distance of
171.90 feet to a point of tangency, said point also being on the
easterly right-of-way line of South Ulster Street Parkway as
platted by the Denver Technological Center, North, Filing No. 1;
thence northwesterly along said easterly right-of-way line the following five
(5) courses:
(1) thence N 25(degree)10'30" W along said tangent, a distance of
33.47 feet to a point of curvature;
(2) thence along a curve to the left having a radius of 1697.02 feet
and a central angle of 14(degree)49'42", an arc distance of
439.19 feet to a point of non-tangency;
(3) thence N 49(degree)59'49" E, a radial to the previously
mentioned curve, a distance of 10.00 feet to a point on a non-
tangent curve;
(4) thence along a curve to the left, the beginning tangent of which
bears N 40(degree)00'11" W, having a radius of 1707.02 feet and a
central angle of 08(degree)24'37", an arc distance of 250.57
feet to a point of reverse curvature;
(5) thence along a curve to the right having a radius of 101.50 feet,
and a central angle of 89(degree)53'29", an arc length of
159.24 feet to a point of compound curvature; said point also
being on the southerly right-of-way line of said Tufts Avenue
Parkway;
thence along said southerly right-of-way line the following three (3) courses:
(1) thence along a curve to the right having a radius of 1213.24 feet
and a central angle of 22(degree)07'47", an arc length of
468.60 feet to a point of tangency;
(2) thence N 63(degree)36'27" E along said tangent a distance of
151.72 feet to a point of curvature;
(3) thence along a curve to the right having a radius of 1088.58 feet
and a central angle of 07(degree)35'36", an arc length of
144.00 feet to the TRUE POINT OF BEGINNING.
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PARCEL B
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The entire right, title, interest and estate of Denver Tech Center Associates
under and pursuant to that certain Reciprocal Easement Agreement dated April 19,
1982, by and between DTC Associates and Denver Tech Center Associates, recorded
on May 4, 1982 in Book 2577 at page 689 of the records of the Clerk and Recorder
of the City and County of Denver, State of Colorado; the interests of Denver
Tech Center Associates pursuant to such Reciprocal Easement Agreement include
(without limitation) a perpetual non-exclusive easement for the passage of motor
vehicles and the passage and accommodation of pedestrians over and across the
"DTC Easement Parcel," as that term is defined in such Reciprocal Easement
Agreement.
A-3
EXHIBIT B
METROPOINT
PLAN DELINEATING THE PREMISES
[Diagram of floorplan]
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XXXXXXX X
XXXXXXXXX XXXXX XX XXXXXXXXXX
TENANT CONSTRUCTION AGREEMENT
1. Terms. Except as expressly provided to the contrary herein, all
initially capitalized terms used herein shall have the meanings set forth for
such terms in the Lease to which this Exhibit C is attached.
---------
2. Base Building Improvements. Landlord, at its expense, shall
construct within or for the Premises the following described improvements (the
"Base Building Improvements"):
(a) Structure: Structural components including foundations, subfloor,
bearing walls, exterior weather walls, columns, beams and roof.
(b) Floors: Bare finished, concrete slab floors.
(c) Electrical: Primary electrical distribution system to the floor
of the Building on which the Premises are located.
(d) Heating, Ventilation and Air Conditioning: Primary heating,
ventilation and air conditioning distribution system provided and
installed and ready for connection to the variable volume and/or
mixing air distribution boxes and supply and return ductwork to
be provided as part of the "Tenant Improvements" (as defined
below).
(e) Telephone: A telephone terminal panel serving the Premises
provided and installed in a reasonable location designated by
Landlord.
(f) Plumbing: Standard toilets on the floor of the Building on which
the Premises are located.
(g) Fire Safety System: Primary distribution for fire safety system
required by applicable code (including, without limitation, fire
sprinklers and alarms) provided and installed and ready for
connection to the fire safety system for the Premises to be
provided as part of the Tenant Improvements.
3. Preliminary Plans. Promptly after execution of this Lease by all
parties hereto, Landlord shall proceed to cause its space planners to prepare
preliminary plans and specifications (the "Preliminary Plans") for all leasehold
improvements in addition to the Base Building Improvements to be constructed by
Landlord for Tenant in the Premises (the "Tenant Improvements"), which
Preliminary Plans shall be sufficient to obtain a bid for the construction or
installation of all improvements shown thereon. Tenant shall furnish to Landlord
all information necessary for the preparation of the Preliminary Plans on or
before January 13, 1995. The Preliminary Plans shall be prepared at Landlord's
expense.
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4. Landlord's Allowance. At such time as Preliminary Plans that have
been approved in writing by both Landlord and Tenant have been prepared,
Landlord shall obtain a bid for the construction or installation of the Tenant
Improvements as shown thereon. Landlord shall promptly notify Tenant of the
amount of such bid plus the amount required to pay for the preparation of the
Preliminary Plans and of architectural and engineering construction drawings for
the Tenant Improvements (the "Estimated Work Cost"). If the Estimated Work Cost
is less than or equal to $26.50 per square foot of the Rentable Area of the
Premises (the "Landlord's Allowance"), then Landlord shall proceed in accordance
with paragraph 5 below. Landlord's Allowance shall be applied to pay all costs
associated with said construction including, but not limited to, space planning
and architectural fees. To the extent that the total construction costs equal
less than Twenty One and 50/100 Dollars ($21.50) per rentable square foot of the
Premises (the "Base Allowance"), Tenant shall receive as a credit against Base
Rent an amount equal to any unused portion of such Base Allowance; provided,
however, should the actual costs exceed such Base Allowance, Landlord shall
amortize an amount equal to the amount of such excess costs up to a maximum of
Five and 00/100 Dollars ($5.00) per rentable square foot of the Premises (the
"Amortized Amount") over the Term of the Lease and Tenant's Base Rent shall be
increased to include the amount of such excess costs plus interest on such
amount at the rate of eleven percent (11%) per annum. If the Estimated Work Cost
is greater than the sum of Landlord's Allowance and the Amortized Amount, then
Tenant, at Tenant's option, may elect to eliminate one or more items shown on
the Preliminary Plans so as to reduce the Estimated Work Cost. If Tenant does
not so elect to eliminate one or more items shown on the Preliminary Plans, or
does so elect but the Estimated Work Cost after accounting for the eliminated
items is still greater than the sum of Landlord's Allowance and the Amortized
Amount, then Tenant shall forthwith deposit with Landlord an amount (the
"Construction Deposit") equal to one-half of the difference between (a) the sum
of Landlord's Allowance and the Amortized Amount and (b) the Estimated Work Cost
(as the same may have been revised), whereupon Landlord shall proceed in
accordance with paragraph 5 below.
5. Construction of Tenant Improvements. Landlord shall cause its
architect and engineer to prepare construction drawings and specifications for
the Tenant Improvements based strictly on the Preliminary Plans and shall cause
the Tenant Improvements to be constructed or installed in the Premises in
accordance with such construction drawings; provided, however, that Landlord's
total cost of preparing such construction drawings and constructing and
installing the Tenant Improvements in the Premises shall not exceed the
Landlord's Allowance. Prior to the commencement of construction, Tenant shall be
given an opportunity to review the Construction drawings to confirm that they
conform to the Preliminary Plans. Upon substantial completion of the
construction and installation of the Tenant Improvements and prior to Tenant's
occupancy of the Premises, Tenant shall pay to Landlord the amount, if any, by
which the actual cost of preparing the construction drawings for the Tenant
Improvements and constructing and installing the Tenant Improvements in the
Premises exceeds the sum of the Landlord's Allowance and the Construction
Deposit.
6. Additional Tenant Work. If Tenant desires any work in addition to
the Base Building Improvements and the Tenant Improvements to be performed In
the Premises (the "Additional Tenant Work"), Tenant, at Tenant's expense, shall
cause plans and specifications for such work to be prepared either by arranging
therefor with Landlord's architect or engineer or with consultants of Tenant's
own selection. All plans and specifications for Additional Tenant Work shall be
subject to review by Landlord to insure that the Additional Tenant Work is
compatible with all other construction, as well as the electrical and mechanical
systems, within the Building, and that it complies with all
C-2
applicable codes, laws, rules and regulations. Landlord's approval of Tenant's
plans and specifications for any Additional Tenant Work shall not be arbitrarily
withheld. If Landlord should approve Tenant's plans and specifications for any
Additional Tenant Work, Landlord shall, subject to the following terms and
conditions, grant to Tenant and Tenant's agents, a license to enter the Premises
prior to the Commencement Date in order that Tenant may perform or cause to be
performed the Additional Tenant Work in accordance with the plans and
specifications therefor previously approved by Landlord:
(a) Tenant shall give Landlord not less than five (5) days' prior
written notice of the request to have such access to the Premises, which
notice must contain or be accompanied by: (i) a description and schedule
for the work to be performed by those persons and entities for whom and
which such early access is being requested; (ii) the names and addresses of
all contractors, subcontractors and material suppliers for whom and which
such access is being requested; (iii) the approximate number of
individuals, itemized by trade, who shall be present in the Premises; (iv)
copies of all contracts pertaining to the performance of the work for which
such early access is being requested; (v) copies of all licenses and
permits required in connection with the performance of the work for which
such access is being requested; (vi) certificates of insurance and
instruments of indemnification against all claims, costs, expenses, damages
suits, fines, penalties, actions, causes of action and liabilities which
may arise in connection with such work; and (vii) assurances of the
availability of funds sufficient to pay for all such work, if such
assurances are requested by Landlord. Each of the foregoing shall be
subject to Landlord's approval, which approval shall not be arbitrarily
withheld.
(b) Such early access is subject to scheduling by Landlord.
(c) Tenant's agents, contractors, workers, mechanics, suppliers and
invitees must work in harmony and not interfere with Landlord and
Landlord's agents in doing work in the Premises and in other premises and
common areas of the Building or the general operation of the Building. If
at any time such entry shall cause or threaten to cause disharmony or
interference, including labor disharmony, Landlord may withdraw its license
upon twenty-four (24) hours prior written notice to Tenant.
(d) In the event that Landlord's work in the Premises and Tenant's
work in the Premises (pursuant to the license granted herein) progresses
simultaneously, Landlord shall not be liable for any injury to person or
damage to property of Tenant, or of Tenant's employees, licensees or
invitees, from any cause whatsoever occurring upon or about the Premises,
and Tenant shall indemnify and save Landlord harmless from any and all
liability and claims arising out of or connected with any such injury or
damage.
(e) Tenant agrees that it is liable to Landlord for any damage to the
Premises or any portion of the work in the Premises caused by Tenant or any
of Tenant's employees, agents, contractors, workers or suppliers.
7. Tenant's Delay. As provided in Section 5C of the Lease, the Term of
the Lease (and therefore Tenant's obligation for the payment of Rent) shall not
commence until Landlord has substantially completed all work to be performed by
Landlord as set forth in paragraphs 2 and 5 above; provided, however, that if
Landlord is delayed in substantially completing such work as a result of:
C-3
(a) Tenant's failure to furnish information in accordance with
paragraph 3;
(b) Tenant's request for materials or installations as a part of
the Tenant Improvements that are other than Landlord's Building standard
materials or installations;
(c) Tenant's changes in any drawings, plans or specifications;
(d) The performance of any Additional Tenant Work or any failure
to complete or delay in completion of such work; or delay in (d) The
performance of any Additional Tenant Work or any failure to complete or
completion of such work; or
(e) Any other act or omission of Tenant (all of which shall be deemed
to be delays caused by Tenant),
then the Commencement Date shall only be extended pursuant to Section 5C(1)
of the Lease until the date on which Landlord would have substantially
completed the performance of such work but for such delays. Postponement of
the commencement of the Term shall be in full settlement of all claims that
Tenant might otherwise have against Landlord by reason of the Premises not
being ready for occupancy by Tenant as of the originally scheduled
Commencement Date set forth in Section 1A(1) of the Lease.
8. General. All drawings, space plans, plans and specifications for
any improvements or installations in the Premises are expressly subject to
Landlord's prior written approval. Any approval by Landlord or Landlord's
architects or engineers of any of Tenant's drawings, plans or specifications
which are prepared in connection with construction of improvements in the
Premises shall not in any way bind Landlord or constitute a representation or
warranty of Landlord as to the adequacy or sufficiency of such drawings, plans
or specifications, or the improvement to which they relate, for any use, purpose
or condition, but this approval shall merely be the consent of Landlord to
Tenant's construction of improvements in the Premises in accordance with such
drawings, plans or specifications. Failure by Tenant to pay any amounts due
hereunder shall have the same effect under the Lease as the failure to pay Rent,
and this failure or the failure by Tenant to perform any of its other
obligations hereunder shall constitute an Event of Default under Section 24(A)
of the Lease, entitling Landlord to all of its remedies under the Lease as well
as all remedies otherwise available to Landlord.
C-4
EXHIBIT D
METROPOINT
RULES AND REGULATIONS
1. Tenant shall not place anything, or allow anything to be placed
near the glass of any window, door, partition or wall which may, in Landlord's
judgment, appear unsightly from outside of the Building.
2. The Building directory, located in the Building lobby as provided
by Landlord, shall be available to Tenant solely to display one (1) line/name
and their location in the Building, which display shall be as directed by
Landlord.
3. The sidewalks, halls, passages, exits, entrances, elevators and
stairways shall not be obstructed by Tenant or used by Tenant for any purposes
other than for ingress to and egress from the Premises. The halls, passages,
exits, entrances, elevators, stairways and roof are not for the use of the
general public and Landlord shall, in all cases, retain the right to control and
prevent access thereto by all persons whose presence in the judgment of
Landlord, reasonably exercised, shall be prejudicial to the safety, character,
reputation and interests of the Building. Neither Tenant nor any employees or
invitees of any tenant shall go upon the roof of the Building.
4. The toilet rooms, urinals, wash bowls and other apparatus shall not
be used for any purposes other than that which they were constructed, and no
foreign substance of any kind whatsoever shall be thrown therein, and to the
extent caused by Tenant or its employees or invitees, the expense of any
breakage, stoppage, or damage resulting from the violation of this rule shall be
borne by Tenant.
5. Tenant shall not cause any unusual janitorial labor or services.
6. No cooking, except for microwave cooking, shall be done or
permitted by Tenant on the Premises, nor shall the Premises be used for lodging.
7. Tenant shall not bring upon, use or keep in the Premises or the
Complex any kerosene, gasoline or inflammable or combustible fluid or material,
or use any method of heating or air conditioning other than that supplied by
Landlord.
8. Landlord shall have sole power to direct electricians to where and
how telephone and other wires are to be introduced. No boring or cutting for
wires is to be allowed without the consent of Landlord. The location of
telephones, call boxes and other office equipment affixed to the Premises shall
be subject to the approval of Landlord.
9. Upon the termination of the tenancy, Tenant shall deliver to
Landlord all keys and passes for offices, rooms, parking areas and toilet rooms
which shall have been furnished to Tenant. In the event of the loss of any keys
or passes so furnished, Tenant shall pay
D-1
Landlord therefor. Tenant shall not make, or cause to be made, any such keys and
shall order all such keys solely from Landlord and shall pay Landlord for any
additional such keys over and above the two sets of keys furnished by Landlord.
10. Tenant shall not install linoleum, tile, carpet or other floor
covering so that the same shall be affixed to the floor of the Premises in any
manner except as approved by Landlord.
11. No furniture, packages, supplies, equipment or merchandise will be
received in the Complex or carried up or down in the freight elevator, except
between such hours and in such freight elevator as shall be designated by
Landlord.
12. Tenant shall cause all doors to the Premises to be closed and
securely locked before leaving the Building at the end of the day.
13. Without the prior written consent of Landlord, Tenant shall not
use the name of the Building or the Complex or any picture thereof in connection
with, or in promoting or advertising the business of Tenant, except Tenant may
use the address of the Building as the address of its business.
14. Tenant shall cooperate fully with Landlord to assure the most
effective operation of the Premises' or the Building's heating and air
conditioning, and shall refrain from attempting to adjust any controls. Tenant
shall keep corridor doors closed.
15. Tenant assumes full responsibility for protecting the Premises
from theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed and secured. Landlord shall in no way be
responsible to Tenant, its agents, employees or invitees, for any loss of
property from the Premises or the Complex.
16. Except with the prior written consent of the Landlord, Tenant
shall not sell or cause to be sold any items or services at retail in or from
the Premises, nor shall Tenant carry on or permit or allow any employee or
person to carry on the business of machine copying, stenography, typewriting or
similar business in or from the Premises for the service or accommodation of
occupants of any portion of the Complex without written consent of the landlord.
17. Tenant shall not conduct any auction nor permit any fire or
bankruptcy sale to be held on the Premises, nor store goods, wares or
merchandise on the Premises. Tenant shall not allow any vending machines on the
Premises without Landlord's prior consent.
18. All freight must be moved into, within and out of the Building and
the Complex under the supervision of Landlord and according to such regulations
as may be posted or distributed by Landlord from time to time. All moving of
furniture or equipment into or out of the Building by Tenant shall be done at
such time and in such manner as directed by Landlord or its agent. In no cases
shall items of freight, furniture, fixtures or equipment be moved into or out of
the Building or in any elevator during such hours as are normally considered
rush hours to an office building; i.e., 7:30-9:00 a.m., 11:00 a.m. - 1:00 p.m.,
and 4:00-6:00 p.m.
D-2
19. On Sundays, holidays (legal) and on other days during certain
hours for which the Building may be closed after normal business hours, access
to the Building or to halls, corridors, elevators, stairwells will be controlled
by Landlord. Landlord or its agents will have the right to demand of any and all
persons seeking access to the Building proper identification to determine if
they have rights of access to the Premises. The Landlord shall, in no case, be
liable for damages wherein admission to the Building has not been granted during
abnormal hours by reason of a tenant failing to properly identify himself, or
through the failure of the Building to be unlocked and open for access by
Tenant, Tenant's employees and general public.
20. Tenant shall not change locks or install other locks on doors
without the prior written consent of Landlord.
21. Tenant shall give prompt notice to Landlord of any accidents to or
defects in plumbing, electrical fixtures or heating apparatus so the same may be
attended to properly.
22. No safes or other objects larger or heavier than the freight
elevators of the Building are limited to carry shall be brought into or
installed on the Premises. Landlord shall have the power to prescribe the weight
and position of such safes or other objects which shall, if considered necessary
by Landlord, be required to be supported by such additional materials placed on
the floor as Landlord may direct, and at the expense of Tenant. In no event
shall these items exceed a weight for which the floor is designed.
23. No person or persons other than those approved by Landlord will be
permitted to enter the Building for purposes of cleaning, maintenance,
construction or painting.
24. Tenant shall not permit or suffer the Premises to be occupied or
used in a manner reasonably objectionable to Landlord or other occupants of the
Complex by reason of noise, odors, or vibrations or interfere in any way with
other tenants or those having business therein, nor shall any animals or birds
be kept in or about the Complex. Smoking or carrying of a lighted cigar or
cigarette in the elevators of the Complex is prohibited.
25. Canvassing, soliciting and peddling in the Complex are prohibited.
Tenant shall cooperate to prevent the same.
26. Landlord reserves the right, at any time, to rescind any one or
more of these rules and regulations, or to make such other and further
reasonable and nondiscriminatory rules and regulations as in Landlord's judgment
may from time to time be necessary for the safety, care and cleanliness of the
Complex for the preservation of order therein.
27. Tenant shall not permit any of its Employees to carry a lighted
cigar, cigarette, pipe or other lighted equipment in any common area of the
Complex, except a common area which has been designated by Landlord as a smoking
area.
D-3
EXHIBIT E
METROPOINT
PARKING
Subject to the following provisions, during the Term of this Lease, Landlord
agrees to permit Tenant the use of, and Tenant agrees to pay the amounts, if
any, described herein for the use of, five (5) unassigned parking spaces in the
surface lot for the parking of vehicles at no charge to Tenant for the initial
Term of this Lease and six (6) unassigned parking spaces in the parking garage
of the Complex for the parking of vehicles at the rate of Thirty and No/100
Dollars ($30.00) per space per month during the first Calendar Year of the
initial Term of this Lease, and thereafter, commencing on the first day of the
Calendar Year immediately following the Calendar Year in which Tenant's
obligation to pay monthly rent for such unassigned parking spaces in the parking
garage of the Complex begins and on the first day of each Calendar Year
thereafter during the initial Term of this Lease, such monthly rent for each
unassigned parking spaces shall increase by five percent (5%) over the monthly
rent payable for such parking spaces during the preceding Calendar Year. All
monthly parking rent shall be payable in advance on the first day of each month
within the Term to the same place as payments of Base Rent and shall be
considered Rent under this Lease. Tenant's rights to use the parking facilities
of the Complex shall be non-exclusive except that Landlord shall not grant any
other party the right to use Tenant's assigned parking spaces. Tenant's rights
hereunder to use the parking facilities of the Complex are conditioned upon this
Lease being in full force and effect and there being no Event of Default by
Tenant under this Lease. Tenant shall not abuse its privileges with respect to
the parking facilities and shall use same in accordance wish Landlord's
directions. If for any reason Landlord fails or is unable to provide all or any
portion of the above-described parking spaces to Tenant or Tenant is not
permitted to utilize all or any portion of such parking spaces at any time
during the Term of this Lease, such fact shall not be a default by Landlord as
to permit Tenant to terminate this Lease, either in whole or in part, but
Tenant's obligation to pay rental for any parking space which is not provided by
Landlord shall be abated for so long as Tenant does not have the use of such
parking space and this abatement shall be in full settlement of all claims that
Tenant might otherwise have against Landlord by reason of Landlord's failure or
inability to provide Tenant with such parking space. Except for those terms
specifically defined in this Exhibit, all initially capitalized terms herein
shall have the meanings set forth for such terms in the Lease to which this
Exhibit is attached.
E-1
RIDER NO. 1
Attached To and Made a Part of
the Office Building Lease By and Between
HD Delaware Properties, Inc.
As Landlord, and
Tanning Technology Corporation,
As Tenant
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OPTION TO EXTEND
Tenant, at its option, shall have the right to extend (the "Option to
Extend") the term of the Lease for the entire Premises for an additional five
(5) years (the "Extended Term") by delivering written notice to Landlord at
least three (3) months before the expiration of the Term of the Lease, provided
that at the time said notice is so delivered and on the commencement of the
Extended Term, no event of default by Tenant as defined in the Lease is in
existence, and provided further that Tenant furnishes current financial
statements to Landlord and that no material adverse change in the financial
condition of Tenant has occurred since the financial statements last delivered
by Tenant to Landlord. Subject to the conditions set forth in the preceding
sentence, the Lease shall be extended by written amendment, duly executed by
Landlord and Tenant. The Extended Term shall commence the day following the
Termination Date of the Term, expire the day preceding the annual anniversary of
such date five (5) years thereafter and be upon the same terms, covenants and
conditions as provided in the Lease for the Term, except that Base Rent and
charges for the parking of vehicles in the Complex payable during the Extended
Term shall be at the rate then being quoted by Landlord for comparable space in
the Building at the commencement of the Extended Term, which new Base Rent and
parking charges shall be designated by Landlord and shall be increased,
adjusted, or augmented as provided in and under the Lease, unless a different
method of increase, adjustment, or augmentation is then prevailing for leases in
the Building, in which event the different method shall be used. Notwithstanding
the foregoing, Base Rent and parking charges during the Extended Term shall in
no event be less than the Base Rent and parking charges payable during the last
year of the initial Term of the Lease. Payment of Additional Rent and all other
charges required to be made by Tenant as provided in this and any other Rider
attached to the Lease for the Term shall continue to be made during the Extended
Term. Any termination of the Lease during the Term shall terminate the Option to
Extend. Any assignment of the Lease or subletting of all or a part of the
Premises by Tenant shall terminate the Option to Extend.
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