1
EXHIBIT 10.30
LEASE AGREEMENT
FOR
0000 XXXXX XXXXXXXX
XXXXXX, XXXXXXXX
BETWEEN
DENVER XXXXX DEVELOPMENT, LLC,
AS LANDLORD
AND
iSKY, INC.
AS TENANT
2
TABLE OF CONTENTS
1. BASIC LEASE PROVISIONS, EXHIBITS AND DEFINITIONS...........................................................1
A. Basic Lease Provisions.................................................................................1
B. Additional Provisions and Exhibits.....................................................................2
C. Definitions............................................................................................2
2. DEMISE....................................................................................................10
3. ANNUAL RENT...............................................................................................10
A. Annual Rent...........................................................................................10
B. Terms of Payment......................................................................................10
4. ADDITIONAL RENT...........................................................................................10
A. Tenant's Share of Computed Operating Expenses.........................................................11
B. Partial Years.........................................................................................11
C. Objections by Tenant..................................................................................11
D. No Reduction in Annual Rent...........................................................................12
5. CONSTRUCTION AND POSSESSION...............................................................................13
A. Construction of Premises..............................................................................13
B. Early Occupancy.......................................................................................13
C. Failure to Complete...................................................................................13
D. Punch List............................................................................................14
6. OCCUPANCY OF PREMISES.....................................................................................14
A. Use...................................................................................................14
B. Compliance............................................................................................14
7. SERVICES PROVIDED BY LANDLORD.............................................................................15
A. Description of Standard Services......................................................................15
B. Additional Services...................................................................................17
C. Interruption of Services..............................................................................17
8. REPAIRS...................................................................................................18
A. Repairs Within the Premises...........................................................................18
B. Landlord's Entry......................................................................................18
C. Notice of Damage......................................................................................19
D. Landlord's Repair Obligations.........................................................................19
9. ADDITIONS, IMPROVEMENTS, AND ALTERATIONS..................................................................19
10. COVENANT AGAINST LIENS....................................................................................20
A. Mechanics Liens.......................................................................................20
B. Sales, Use, Income and Personal Property Taxes........................................................21
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11. INSURANCE.................................................................................................21
A. Waiver of Subrogation.................................................................................21
B. Coverage..............................................................................................21
C. Avoid Action Increasing Rates.........................................................................22
D. Notices by Tenant's Insurance Carrier to Landlord.....................................................23
12. FIRE OR CASUALTY..........................................................................................23
A. Restoration - Cancellation upon Major Damage..........................................................23
B. Rent Abatement........................................................................................24
13. WAIVER OF CLAIMS - INDEMNIFICATION........................................................................24
14. NONWAIVER; ACCEPTANCE OF RENT OR PERFORMANCE AFTER BREACH.................................................25
15. CONDEMNATION..............................................................................................25
16. ASSIGNMENT AND SUBLETTING.................................................................................26
17. SURRENDER OF POSSESSION...................................................................................27
18. PERSONAL PROPERTY.........................................................................................28
A. Responsibility........................................................................................28
B. Taxes on Certain Improvements, Alterations and Conditions.............................................28
C. Landlord's Lien.......................................................................................28
19. HOLDING OVER..............................................................................................28
20. ESTOPPEL CERTIFICATE......................................................................................28
21. OBLIGATIONS TO MORTGAGEES AND LESSORS.....................................................................29
A. Subordination.........................................................................................29
B. Notice to Landlord, Mortgagees, and Lessors...........................................................29
22. CERTAIN RIGHTS RESERVED BY LANDLORD.......................................................................30
23. RULES AND REGULATIONS.....................................................................................31
24 DEFAULT AND REMEDIES......................................................................................32
A. Events of Default.....................................................................................32
B. Landlord's Remedies...................................................................................33
C. Concurrent or Subsequent Exercise of Remedies.........................................................37
D. Choice of Law, Jurisdiction and Venue.................................................................37
25. EXPENSES OF ENFORCEMENT...................................................................................38
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26. COVENANT OF QUIET ENJOYMENT...............................................................................38
27. SECURITY DEPOSIT..........................................................................................38
28. REAL ESTATE BROKER........................................................................................39
29. MISCELLANEOUS.............................................................................................39
A. Rights Cumulative.....................................................................................39
B. Interest..............................................................................................39
C. Binding Effect........................................................................................40
D. Lease Contains All Terms..............................................................................40
E. Delivery for Examination..............................................................................40
F. No Air Rights.........................................................................................40
G. Modification of Lease.................................................................................40
H. Substitution of Premises..............................................................................40
I. Transfer of Landlord's Interest.......................................................................40
J. Prohibition Against Recording.........................................................................40
K. Captions..............................................................................................41
L. Only Landlord/Tenant Relationship.....................................................................41
M. Bills.................................................................................................41
N. Severability..........................................................................................41
O. Jury Trial............................................................................................41
P. Authority to Bind.....................................................................................41
Q. Tenant's Covenants Independent........................................................................41
R. Business Days and Hours; Holidays.....................................................................41
S. Force Majeure.........................................................................................41
30. LIMITATIONS ON LANDLORD'S LIABILITY.......................................................................42
31. NOTICES...................................................................................................42
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EXHIBITS
Exhibit A - 4600 SOUTH SYRACUSE Additional Provisions
Exhibit B - 4600 SOUTH SYRACUSE Legal Description of the Land
Exhibit C - 0000 XXXXX XXXXXXXX Plan Delineating the Premises
Xxxxxxx X - 0000 XXXXX XXXXXXXX Tenant Construction Agreement
Exhibit E - 4600 SOUTH SYRACUSE Rules and Regulations
Exhibit F - 4600 SOUTH SYRACUSE Parking
Exhibit G - 0000 XXXXX XXXXXXXX Base Building Shell and Building Standard Items
Exhibit H - 4600 SOUTH SYRACUSE Form of Subordination, Nondisturbance and
Attornment Agreement
Exhibit I - 0000 XXXXX XXXXXXXX Form of Letter of Credit
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LEASE AGREEMENT
0000 XXXXX XXXXXXXX
This LEASE AGREEMENT (this "Lease") is made as of the 13th day of
March, 2000, between DENVER XXXXX DEVELOPMENT, LLC, a Delaware limited
liability company (the "Landlord"), and iSKY, INC. a Delaware corporation (the
"Tenant"), whose present address is 0000 X. Xxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxx, XX 00000, and whose address will be that of the Building beginning
with the Commencement Date.
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, beginning on the earlier of (a)
the date of substantial completion of the Tenant Work in the
Premises, as defined in Paragraph 9 of Exhibit D to this Lease, or
(b) May 1, 2000 ("Commencement Date") or any deferred Commencement
Date that may apply under Section 5.C. below or under Exhibit D to
this Lease, and expiring at midnight on the day before the date
which is five years later ("Expiration Date"). When the
Commencement Date has been determined, Landlord and Tenant will
execute a certificate specifying the Commencement Date and the
Expiration Date.
(2) Annual Rent: Determined pursuant to Section 3 based on
an annual amount per square foot of Rentable Area of the Premises
for each Lease Year (which amount per square foot includes Initial
Operating Expenses Basic Cost, as defined below), as follows:
ANNUAL RATE PER
LEASE YEAR RENTABLE SQUARE FOOT
---------- --------------------
Lease Years 1 through 3 $26.50
Lease Years 4 through 5 $27.50
(3) Initial Operating Expenses Basic Cost (including the
Management Fee Contribution): the sum of $8.00 per square foot of
Rentable Area of the Premises.
(4) Permitted Use: general office and related or ancillary
uses, including a diagnostic laboratory for computer and RF
equipment.
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(5) Rentable Area of the Premises: Approximately 24,992
square feet located on Xxxxx 0, Xxxxx 000. The Rentable Area of
the Premises is approximately as stated above, and shall be
specifically calculated by Landlord's architects when floor plans
for the Premises are complete, in accordance with the definitions
contained in this Lease. Upon such determination by Landlord's
architect, the Rentable Area of the Premises shall be adjusted to
reflect the number of square feet of Rentable Area determined by
such calculation. At the request of Landlord, the parties shall,
from time to time, execute instruments confirming the Rentable
Area of the Premises. Tenant shall have the right to have its
architect perform a verification within thirty (30) days after the
Commencement Date that the methodology used by Landlord's
architect to calculate the Rentable Area of the Premises is the
methodology set forth in this Lease; provided, however, that so
long as the methodology used is correct, the figure arrived at by
Landlord's architect shall control.
(6) Security Deposit: An amount equal to the total Annual
Rent due hereunder during Lease Year 5.
(7) Tenant's Broker: Xxxxxxx & Company.
(8) Landlord's Broker: CB Xxxxxxx Xxxxx, Inc.
B. Additional Provisions and Exhibits. Set forth in Exhibit A
attached hereto are certain additional provisions contained in this Lease. In
the event of any inconsistency between such additional provisions and the terms
and provisions of this Lease, the terms and provisions of such additional
provisions shall control. The following is an identification of the Exhibits
which are attached to this Lease and incorporated in this Lease by this
reference. The Exhibits to this Lease include:
Exhibit A -Additional Provisions
Exhibit B -Legal Description of the Land
Exhibit C -Plan Delineating the Premises
Exhibit D -Tenant Construction Agreement
Exhibit E -Rules and Regulations
Exhibit F -Parking
Exhibit G -Base Building Shell and Building Standard Items
Exhibit H -Form of Subordination, Nondisturbance and Attornment
Agreement
Exhibit I -Form of Letter of Credit
C. Definitions. In this Lease (including this Section) the
following defined terms have the meanings indicated:
(1) "Building" means that 13 floor office and commercial
building containing approximately 304,208 square feet of Rentable
Area commonly known as 0000 XXXXX XXXXXXXX, 0000 Xxxxx Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxx 00000, located on the Land and in which
the Premises are located. The Rentable Area of the Building is
approximately as stated above, and shall be specifically
calculated by Landlord's architects when floor plans for the
Building are complete. Upon such determination by Landlord's
architect,
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the Rentable Area of the Building shall be adjusted to reflect the number of
square feet of Rentable Area determined by such calculation. Tenant shall have
the right to have its architect perform a verification within thirty (30) days
after the Commencement Date that the methodology used by Landlord's architect to
calculate the Rentable Area of the Building is the methodology set forth in this
Lease; provided, however, that so long as the methodology used is correct, the
figure arrived at by Landlord's architect shall control.
(2) "Building-Shared Areas" means the square footage of the
areas within (and measured from the mid-point of the walls
enclosing) the Building elevator machine rooms, main mechanical
and electrical rooms, public lobbies, and other areas not leased
or held for lease within the Building but which are necessary or
desirable for the proper utilization of the Building or to provide
customary services to the Building. The allocation to the Premises
of the Building-Shared Areas shall be equal to the total
Building-Shared Areas within the Building multiplied by a
fraction, the numerator of which is the Usable Area of the
Premises and the denominator of which is the Usable Area leased or
held for lease for general office purposes in the Building.
(3) "Building Standard" means the items described as
building standard finishes on Exhibit G, as such items may be
revised from time-to-time by Landlord.
(4) "Calendar Year" means any twelve month period, January
through December, which contains any part of the Term of this
Lease.
(5) "Complex" means the Land, the Building, the parking
garage, and all other improvements on the Land or directly
benefiting the Building from time to time, and all additional
facilities directly benefiting the Building that may be
constructed in subsequent years, including underground pedestrian
tunnels and aboveground pedestrian skywalks, and including any
variations or additions thereto, but excluding any additional
office buildings which might be built on the Land.
(6) "Computed Operating Expenses" means, with respect to
each Calendar Year during the Term, the actual Operating Expenses
for said Calendar Year computed on the accrual basis and in
accordance with the terms of this Lease, but excluding the
Management Fee Contribution.
(7) "Floor-Shared Areas" means the square footage of the
areas within (and measured from the mid-point of the walls
enclosing) public corridors, elevator foyers, rest rooms,
mechanical rooms, janitor closets, telephone and equipment rooms,
and other similar facilities for the use of all tenants on the
floor on which the Premises are located. In the case of a floor
leased to more than one tenant, the allocation to the Premises of
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the Floor-Shared Areas on said floor shall be equal to the total
Floor-Shared Areas on said floor multiplied by a fraction, the
numerator of which is the Usable Area of the Premises located on
said floor and the denominator of which is the Usable Area of said
floor.
(8) "Land" means the real property legally described on
Exhibit B.
(9) "Lease Year" means each twelve (12) month period
beginning with the Commencement Date, or any anniversary thereof,
and ending at midnight on the date which is one day prior to the
same date one (1) year later. If the Lease Year is not concurrent
with a Calendar Year, then Landlord reserves the right at any time
to make all adjustments provided for herein on a Calendar Year
basis, with an appropriate proration for the Lease Years in which
such conversion is made and in which the Term ends, and "Lease
Year" as used in any portion of this Lease pertaining to such
adjustments shall thereafter be deemed to refer to "Calendar
Year."
(10) (a) "Operating Expenses" means all expenses, costs and
disbursements of every kind and nature which Landlord shall pay or
incur or become obligated to pay or incur because of or in
connection with the ownership, operation or maintenance of the
Complex, including but not limited to, the following:
i) Wages, salaries and other compensation of all
employees, on site and offsite, engaged in the operation,
maintenance, repair or access control of the Complex,
including personnel for security or who may provide traffic
control relating to ingress and egress to and from the
parking facilities serving the Complex to the adjacent
public streets. All taxes, insurance, benefits, travel
expenses, continuing educational expenses, and trade
association dues and expenses relating to employees
providing these services shall be included, but if the
employee does not work full time with respect to the
Building, all of such expenses related to the employee
shall be equitably pro-rated based upon the proportionate
amount of time expended by the employee with respect to the
Building.
ii) All supplies, equipment, tools and materials,
whether purchased or leased, used in the operation,
maintenance, repair or access control of the Complex.
iii) Cost of all utilities for the Complex,
including, but not limited to, the cost of water, power,
heating, lighting, air conditioning and ventilating
(excluding those costs billed to specific tenants).
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iv) Cost of all maintenance and service agreements
for the Complex and the equipment therein, including, but
not limited to, access control, window cleaning, elevator
maintenance, landscaping and perimeter sidewalk and public
area cleaning, maintenance and repair, and janitorial
service.
v) Cost of all insurance relating to the Complex,
including, but not limited to, the cost of casualty (but
not the cost of casualty insurance, if any, carried by
Landlord and attributable to beyond Building Standard
leasehold improvements), rental abatement and liability
insurance applicable to the Complex and Landlord's personal
property used in connection therewith.
vi) Cost of repairs and maintenance (excluding
repairs and maintenance paid by proceeds of insurance or by
Tenant or other third parties, and alterations attributable
solely to tenants of the Building other than Tenant).
vii) Amortization of the cost of capital investment
items which are primarily for the purpose of reducing
operating costs, but only to the extent of such reduction
in operating costs, or which may be required by
governmental authority with respect to laws enacted after
the Commencement Date, or to reasonably promote safety of
the Complex. All such costs shall be determined and
amortized over the reasonable life or payback period, as
Landlord may elect, of the capital investment items in
accordance with generally accepted accounting principles,
together with a commercially reasonable financing charge
factor. In no event shall the amortization period extend
beyond the reasonable life of the Building.
viii) All internal control audit and operating
expense audit costs for the Complex, and an allocation of
the costs of the off-site project accounting, senior
property management, payroll and risk management
departments of Landlord and/or the property manager,
including personnel costs, office rent and other associated
costs incurred in connection with such departments, as long
as those costs are related to the Complex.
ix) Office rent and other costs of a management
office within the Complex.
x) Costs of operating a reception desk and /or other
amenities or services for the general benefit of tenants of
the Building that may be provided now or in the future.
xi) All Taxes (as defined below).
xii) A contribution (the "Management Fee
Contribution") towards a management fee equal to three
percent (3%) of the
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Annual Rent (as the same may be adjusted from time to time
as set forth above) and of Tenant's Share of Computed
Operating Expenses as described below (but excluding the
Management Fee Contribution).
(b) Notwithstanding anything in the definition of Operating
Expenses to the contrary, Operating Expenses shall not include the following,
except to the extent specifically permitted by a specific exception to the
following:
(i) If any additional buildings are constructed within the
Complex, or if any other improvement is constructed within
the Complex which serves more than the Building, there
shall be reduced from Operating Expenses all expenses which
relate solely to another building or improvement, and there
shall be reduced from Operating Expenses the proportionate
amount of any expense which relates to the Building as well
as any other building or improvement within the Complex, to
the proportionate extent to which the expense does not
relate to the Building.
(ii) Costs incurred for the repair of damage caused by a
casualty for which Landlord is reimbursed, or is entitled
to reimbursement, by a tenant or by insurance proceeds
(provided that any deductible amount for which Landlord is
not reimbursed by insurance shall not be excluded from
Operating Expenses hereby).
(iii) Costs, including permit, license and inspection costs,
incurred with respect to the installation of any occupant's
space in the Building or incurred in renovating or
otherwise improving, decorating, painting or redecorating
vacant space for tenants or other occupants of the
Building.
(iv) Costs of items considered capital items under generally
accepted accounting principles consistently applied or
otherwise ("Capital Items"), except for those Capital Items
specifically permitted in Section 1(C)(10)(a)(vii).
(v) Costs incurred to remedy any defects in the design or
material used in, or the defective installation or
construction of any portion of the Complex, except that
conditions (not occasioned by construction defects)
resulting from ordinary wear and tear and use shall not be
deemed defects for the purpose of this category.
(vi) Depreciation, amortization and interest payments, except as
specifically provided otherwise in the Lease.
(vii) Marketing costs, including without limitation, leasing
commissions, attorney's fees in connection with the
negotiation and preparation of lease documents, space
planning costs and other costs and expenses incurred with
respect to lease negotiations and transactions with present
or prospective tenants or other occupants
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of the Building; provided, however, that wages of
employees which are otherwise included in Operating
Expenses under Section 1.C.(10)(a)(i) above shall not be
deemed excluded from the definition of Operating Expenses
as a result of such employees' performance of marketing
activities on behalf of the Building.
(viii) Expenses in connection with services or other benefits
which are not offered to Tenant or for which Tenant is
charged directly but which are provided to another tenant
or occupant of the Building.
(ix) Costs due to the violation by Landlord or any tenant of
the terms and conditions of any lease of space in the
Building.
(x) Any expense paid to Landlord or subsidiaries or affiliates
of Landlord for goods and/or services in or to any portion
of the Complex to the extent that such expense exceeds the
costs of such goods and/or services rendered by
unaffiliated third parties on a competitive basis (to the
extent such goods and/or services are available or exist
in the marketplace).
(xi) Payments on any deed of trust, other debt instrument or
ground lease relating to any portion of the Complex.
(xii) Any compensation paid to anyone in connection with a
commercial concession intended for profit and operated by
Landlord or in the parking garage of the Building.
(xiii) Any item which is reimbursed to Landlord from insurance or
condemnation proceeds or which is payable to Landlord from
any tenant in the Building (other than as part of that
tenant's share of Operating Expenses).
(xiv) Costs arising from latent defects in any portion of the
Complex.
(xv) Landlord's charitable or political contributions.
(xvi) Costs incurred in connection with any environmental
clean-up, response action or remediation on, in, under or
about the Building or the Complex, including but not
limited to costs and expenses associated with the defense,
administration, settlement, monitoring or management
thereof.
(xvii) Any inheritance, gift, franchise, income, corporate or
profit taxes that may be assessed against Landlord (except
to the extent such taxes are in substitution, in whole or
in part, for real estate or personal property taxes or
license or other fees or in lieu of any increase in such
taxes or fees, as specifically provided in Section
1.C.(14) below).
(xviii) All bad debt loss, rent loss, or reserves for bad debt or
rent loss.
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(11) "Premises" means that portion of the Building
identified as such on Exhibit C and containing the Rentable Area
set forth in Section 1.A.(5). 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; elevator,
pipe and other vertical shafts, flues and ducts; (other than, as
to all the above in this Section 1.C.(11), those installed for or
available for Tenant's exclusive use); all areas above the
acoustical ceiling and below the finished floor covering installed
in the Premises; and other areas not shown on Exhibit C as being
part of the Premises (provided, however, that Tenant shall be
entitled to use the areas above the acoustical ceiling and the
chases or risers of the Building for the installation of Tenant's
cabling and HVAC equipment, as approved by Landlord and as shown
on the Tenant Working Drawings defined in Exhibit D hereto).
(12) "Rentable Area" refers to the square footage area or
areas within the Building determined by adding the following:
i) the Usable Area of the area being measured;
ii) the portion of the Building-Shared Areas
allocable to the area being measured; and
iii) the portion of the Floor-Shared Areas allocable
to the area being measured.
(13) "Service Areas" means the square footage of the areas
within (and measured from the mid-point of the walls enclosing)
the Building stairs, fire towers, elevator shafts, flues, vents,
stacks, pipe shafts, vertical ducts and other vertical
penetrations. Areas for the specific use of Tenant and installed
at the request of Tenant such as special stairs or elevators are
not included within the definition of Service Areas (i.e., such
areas will be included in the Usable Area leased of the space
being measured).
(14) "Taxes" means all real estate and personal property
taxes and assessments (general, special or otherwise) and license
or other fees, levied or assessed by any federal, state, city and
county or local government or by any other taxing district or
authority upon or with respect to the Complex, the maintenance
equipment and vehicles, elevators, building machinery and other
personal property owned or leased by Landlord and used for the
operation of the Complex. 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 license or other fees or in
lieu of any increase in such taxes or fees, such income, franchise
or rent tax shall be deemed to constitute Taxes hereunder. All
references to Taxes for a particular year shall be deemed to refer
to Taxes levied,
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assessed or otherwise imposed in such year without regard to when
such Taxes are payable. Taxes shall also include all special taxes
and special assessments, all of which or installments of which are
required to be paid, or which Landlord elects to pay, during any
Calendar Year.
(15) "Tenant's Share of Computed Operating Expenses" means,
with respect to any Calendar Year, the sum of (a) the Management
Fee Contribution for such year, and (b) the Computed Operating
Expenses for such year, which sum shall be (1) divided by the
greater of ninety-five percent (95%) of the Rentable Area of
office space leased or held for lease in the Building or the total
Rentable Area of office space actually leased in the Building, and
(11) multiplied times the number of square feet of Rentable Area
contained within the Premises. Notwithstanding the foregoing
provisions, during any portion of the Term that the Building is
not fully occupied, or that the Building is not fully furnished
with all of the services referred to in Section 7, the Tenant's
Share of Computed Operating Expenses 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, based on what Tenant has
received, 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 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
fully furnish to the tenant(s) of such premises any one or more 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 fully furnish all of the
services described in Section 7 to such premises, such premises
shall be deemed "unoccupied" for purposes of the preceding
sentence. Notwithstanding the foregoing, and subject to Section
4.D below, in no event shall Landlord be entitled to "gross up"
Operating Expenses pursuant to this Section 1.C.(15) in order to
collect an amount on account of Operating Expenses for the
Building with respect to any Calendar Year which is greater than
the actual Operating Expenses incurred by Landlord during such
Calendar Year.
(16) "Term" means the term of this Lease which shall
commence on the Commencement Date set forth in Section 1.A.(l) or
the later Commencement Date to which such commencement may be
extended pursuant to Section 5.C. or Exhibit D, and which shall
end on the Expiration Date set forth in Section 1.A.(1) or the
later Expiration Date to which such expiration may be extended
pursuant to Section 5.C. or Exhibit D, unless terminated earlier
or extended further as provided in this Lease.
(17) "Usable Area" means the square footage of the areas
within the Premises measured from the inside surface of the outer
glass, finished column or exterior wall of the Building enclosing
the Premises to the inside surface of the opposite outer glass,
finished column or exterior wall, or to the mid-point of the
demising walls separating the Premises from:
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i) areas leased to or held for lease to other
tenants;
ii) Building-Shared Areas;
iii) Floor-Shared Areas; and
iv) Service Areas, as the case may be. No
deductions from Usable Area shall be made for columns or
projections necessary to the Building.
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, conditions, terms, obligations, 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 provisions,
covenants, agreements, obligations, terms and conditions of this Lease, matters
of record, and existing covenants, conditions, restrictions, easements and
encumbrances affecting the same.
Hereinafter unless otherwise provided, "covenants" includes "agreements
and obligations" and "provisions" includes "terms."
3. ANNUAL RENT.
A. Annual 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 "Annual Rent") in accordance with the provisions hereof. Annual
Rent for each Lease Year shall be equal to the amount specified in Section
1.A.(2) multiplied by the number of square feet of Rentable Area of the
Premises, and shall be payable in monthly installments pursuant to Section 3.B.
below.
B. Terms Of Payment. Annual Rent during each Lease Year shall be
due and payable in monthly installments equal to one-twelfth of the Annual Rent
for such Lease Year, and received by Landlord 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, Annual
Rent for such month shall be prorated based on the number of calendar days in
that month. All payments of Annual Rent and other "Rent" (as defined below)
shall be made to Landlord at Denver Xxxxx Development, LLC, at the address of
the Building, or at such other place as Landlord may from time to time designate
to Tenant in writing, without any demand, counterclaim, set-off or deduction
whatsoever.
4. ADDITIONAL RENT. In addition to paying the Annual Rent specified in Section 3
hereof, Tenant shall pay as "Additional Rent" the amounts described in this
Section 4 as adjustments to such Annual Rent. The (i) Annual Rent, the (ii)
Additional Rent and
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(iii) all other amounts payable by Tenant to Landlord pursuant to this Lease are
sometimes herein collectively referred to as the "Rent."
A. Tenant's Share Of Computed Operating Expenses. For each
Calendar Year during the Term, prior to January 1 of each such Calendar Year (or
prior to the commencement of the Term as to the year in which the Commencement
Date occurs), Landlord shall provide Tenant in writing a comparison of the
Initial Operating Expenses Basic Cost with the projected Tenant's Share of
Computed Operating Expenses with respect to such Calendar Year, and thereafter
Tenant shall pay an adjusted Annual Rent for such year which shall include an
appropriate amount on account of the excess of such projected Tenant's Share of
Computed Operating Expenses over the Initial Operating Expenses Basic Cost.
Landlord shall, within a period of one hundred fifty (150) days after the close
of each such Calendar Year, provide Tenant a statement of the Operating Expenses
for such year and a calculation. based thereon of Tenant's Share of Computed
Operating Expenses for such year. If Tenant's Share of Computed Operating
Expenses for such year is greater than the projected amount theretofore paid by
Tenant for such year, Tenant shall pay to Landlord within thirty (30) days after
Tenant's receipt of the statement the amount of such excess. However, if
Tenant's Share of Computed Operating Expenses for such year is less than the
projected amount theretofore paid by Tenant for such year, Landlord shall pay to
Tenant within thirty (30) days after Tenant's receipt of the statement the
amount of such overpayment.
B. Partial Years. 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. Should this Lease commence or terminate at any time other than the
first day of a Calendar Year, Tenant's Share of Computed Operating Expenses
referred to in Sections 4.A. and 4.B. above 11 shall be calculated, for the
commencement or termination year only, by the following formula:
Days Leased X Tenant's Share of Computed Operating Expenses/365 = Adjusted
Tenant's Share of Computed Operating Expenses.
C. Objections By Tenant. If Tenant in good faith objects to the
calculation of Operating Expenses or Tenant's Share of Computed Operating
Expenses for the prior year (i.e., the year covered by the statement submitted
under Section 4.A.), Tenant may notify Landlord in writing of its objections at
any time within one hundred twenty (120) days following the date the statement
of Operating Expenses and calculation of Tenant's Share of Computed Operating
Expenses is provided pursuant to Section 4.A. If Tenant so notifies Landlord of
its objections, Landlord may furnish Tenant with a copy of a review or audit of
the Operating Expenses for the prior year for the Complex as a whole, performed
by an independent certified accounting firm (the "Complex Audit"), if such a
Complex Audit has been performed. If Tenant has remaining objections after its
review of the Complex Audit, if one is furnished, Tenant must notify Landlord in
writing of its remaining objections at any time within sixty (60) days following
the date the Complex Audit has been provided to Tenant. In any event, if Tenant
has initially raised objections and Landlord has not provided a copy of the
Complex Audit, or if Tenant raises remaining objections after it has been
provided with a
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copy of the Complex Audit, and such objections are not resolved within sixty
(60) days of Tenant's applicable notice of objections, then Tenant may appoint
within ninety (90) days of Tenant's objection letter one of the "Big Four"
nationally recognized independent certified public accounting firms (which may
be the same firm that has performed the Complex Audit for the Complex as a
whole, if such a Complex Audit has been performed), to act as an expert and not
an arbitrator, to review Landlord's books and records for the Complex relating
to Operating Expenses and Tenant's Share of Computed Operating Expenses for
compliance with this Lease, in which case the independent certified public
account firm will be instructed to issue a report within sixty (60) days from
engagement. The determination of such independent certified public accounting
firm shall be binding on both Landlord and Tenant. The costs incurred by such
independent certified public accounting firm in such review shall be the sole
responsibility of Tenant and shall be paid by Tenant within thirty (30) days
from such invoice, unless it is determined that Landlord overstated Tenant's
Share of Computed Operating Expenses by more than three percent (3%) in the
aggregate, in which case Landlord shall be responsible for such costs. In the
event that Landlord overstated Tenant's Share of Computed Operating Expenses by
more than three percent (3%) in the aggregate, Tenant shall be entitled to
examine Landlord's books and records relating to the previous three (3) years'
Operating Expenses for errors in similar categories to the categories in which
the errors leading to the adjustment were discovered. The foregoing process
shall apply to Tenant's right to examine prior years' Operating Expenses, except
that Tenant must object to prior years' Operating Expenses within sixty (60)
days after the date on which the determination is made that Landlord overstated
Tenant's Share of Computed Operating Expenses by more than three percent (3%) in
the aggregate. If Tenant (i) fails to object in writing to Operating Expenses or
the calculation of Tenant's Share of Computed Operating Expenses within one
hundred twenty (120) days following the date the statement of Operating Expenses
and calculation of Tenant's Share of Computed Operating Expenses is provided
under Section 4.A, or (ii) if Tenant then fails to object in writing within
sixty (60) days after a Complex Audit, if any, is provided, or (iii) if Tenant
fails to object to prior years' Operating Expenses within sixty (60) days after
the date on which the determination is made that Landlord overstated Tenant's
Share of Computed Operating Expenses by more than three percent (3%) in the
aggregate, then Tenant shall have no objection rights with respect thereto and
Operating Expenses and Tenant's Share of Computed Operating Expenses for such
year shall be final and not subject to audit or adjustment. Tenant understands
and agrees that all information concerning Operating Expenses that is obtained
by Tenant or that is provided to Tenant, including pursuant to this Section
4.C., is confidential and proprietary information of Landlord and may not be
disclosed to any third party by Tenant or used by Tenant for any purpose
unrelated to this Lease. Upon request, Tenant shall execute and deliver a
confidentiality and non-disclosure and restricted use agreement in favor of
Landlord and its property manager in form and content acceptable to Landlord to
confirm and implement the provisions of the immediately preceding sentence.
D. No Reduction in Annual Rent. The Annual Rent stated in Section
1.A.(2) shall not be reduced if Operating Expenses for any Calendar Year are
below the Initial Operating Expenses Basic Cost.
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5. CONSTRUCTION AND POSSESSION.
A. Construction of Premises. Landlord will proceed to complete the
Base Building Shell as described in Exhibit G, and the additional initial
improvements in the Premises will be completed in accordance with the Tenant
Construction Agreement attached hereto as Exhibit D. Subject to the provisions
of Section 9 and 17 below, Landlord and Tenant agree that all alterations,
improvements and additions made to the Premises pursuant to a 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.
B. Early Occupancy. Tenant has no right to enter the Premises
until the same are tendered by Landlord unless Tenant's entry is for purposes
relating to construction work in the Premises and is in accordance with the
terms of a Tenant Construction Agreement. Any occupancy of the Premises by
Tenant for the regular conduct of Tenant's business prior to the Commencement
Date will be permitted only with the express written consent of Landlord. If
Tenant shall so take possession of any part of the Premises for business
purposes prior to the Commencement Date pursuant to Landlord's prior written
consent, all of the covenants, provisions and conditions of this Lease shall be
binding upon the parties hereto with respect to such portion of the Premises in
the same manner as if the Commencement Date had been fixed as the date when
Tenant took possession and Tenant shall pay to Landlord Rent for the 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 5.B. be deemed to accelerate the Expiration 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 the Tenant Construction Agreement on or
before the date set forth therein, 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 1.A.(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 a Tenant
Construction Agreement, and the Expiration 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 Expiration Date occurring on other than the
last day of a calendar month, the Expiration Date shall be
extended by the additional number of days required in order for
the Expiration 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 the Tenant Construction Agreement on or before the
date two (2) months after the date set forth therein (plus any
period of delay caused by
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Tenant as described in the Tenant Construction Agreement), Tenant
shall have additional obligations and rights created hereby by
delivering written notice of termination to Landlord not more
than thirty (30) days after such date. In addition, if the full
Premises are not so tendered to Tenant on or before June 1, 2000
(plus any period of delay caused by Tenant as described in the
Tenant Construction Agreement), and provided that the Lease was
executed by Tenant and delivered to Landlord no later than March
10, 2000, Landlord shall reimburse Tenant for the rental costs
paid by Tenant pursuant to its lease for the premises currently
occupied by Tenant, which rental costs are incurred from June 1,
2000 up until the date the full Premises are so tendered, up to a
maximum amount of $6,000.00 per month.
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;
except as set forth above with respect to Landlord's obligation to reimburse
Tenant for certain rental costs, 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, such
reimbursement of the specified rental costs, and such termination and refund
right shall be in full settlement of all claims that Tenant might otherwise have
against Landlord by reason of Landlord's failure to substantially complete its
obligations under the Tenant Construction Agreement by the date set forth in
Section 1.A.(1).
D. Punch List. 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 Tenant took possession, except as to
latent defects and 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, employees, invitees, licensees, contractors,
workmen or suppliers. No promise of 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 Landlord
to Tenant other than as may be contained in this Lease or in a Tenant
Construction Agreement.
6. OCCUPANCY OF PREMISES.
A. Use. Tenant shall use and occupy the Premises only for the use
described in Section 1.A.(4) (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
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to the condition, use and occupancy of the Premises (other than structural and
system repairs as described in Section 7.A.(1), which are the responsibility of
Landlord) throughout the entire Term of this Lease. Notwithstanding the
foregoing, Tenant shall only be responsible for compliance with such laws as
pertain to the particular nature of Tenant's Permitted Use of the Premises
(i.e., other than general office use) or any alterations made to the Premises by
Tenant following the Commencement Date. Otherwise, Landlord shall be
responsible, at its sole cost and expense, for compliance with all laws,
ordinances, rules, regulations and governmental requirements pertaining to the
Building and the Premises (provided, however, that Landlord may include such
costs within Operating Expenses). Without limiting the generality of the
foregoing, Landlord represents that, upon completion of the initial construction
thereof, the common areas of the Building shall be in compliance with the
requirements of the Americans with Disabilities Act ("ADA"), as such
requirements exist on that date, and to the extent that such common areas of the
Building are determined not to be in compliance with such requirements, Landlord
shall correct such noncompliance at its expense. Throughout the Term, Landlord
shall be responsible for compliance with ADA requirements in the common areas of
the Building (provided, however, that Landlord may include such costs within
Operating Expenses), and Tenant shall be responsible for compliance with ADA
requirements within the Premises.
7. SERVICES PROVIDED BY LANDLORD.
A. Description Of Standard Services. Landlord shall manage and
maintain the Building and the Complex as a Class A building within the Denver
Southeast Suburban area. 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 of the plumbing, electrical, HVAC and life safety
systems installed in the Building as part of either the Base
Building Shell or the Building Standard finishes as described in
Exhibit G, but excluding any systems installed in the Premises
which are over and above the Base Building Shell or the Building
Standard systems, each of which shall be maintained by Tenant (or
at Tenant's request, by Landlord, with all of the costs thereof
payable by Tenant to Landlord upon presentation of an invoice
therefor as additional Rent hereunder; provided that Tenant shall
have the right to approve in advance any repairs and maintenance
performed by Landlord upon such systems which are over and above
the Base Building Shell or the Building Standard systems, if
Tenant will incur any extra charges related thereto). The cost of
such repair and maintenance by Landlord 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, visitors, licensees, workmen, suppliers,
or invitees, in which latter case such cost shall be paid by
Tenant within 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 7:00 a.m. to 6:00 p.m. on Monday through Friday,
except holidays, at
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temperatures and in amounts as may 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 personal computers,
calculators, dictation recorders, small reproduction machines and
similar devices and 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 (other than personal computers) or heavy-duty
reproduction equipment). If Tenant shall require such heat,
ventilation or air conditioning outside the hours and days
specified above, 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 Landlord's
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), and
provided further that Tenant may submit a blanket HVAC Request to
Landlord for such hours on Saturday. 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. Landlord shall honor HVAC Requests within 24
hours after Tenant submits the HVAC Request.
(3) water for lavatory and toilet purposes, all water
service to be supplied from the regular supply of water to the
Building 24 hours per day, 7 days per week, at points of supply
provided for general use of tenants of the Building through
fixtures installed by Landlord;
(4) janitorial services to the Premises on a five (5) days
per week basis at no extra charge; provided, however, Tenant shall
pay as Additional Rent, upon presentation of Landlord's statement,
the additional cost for cleaning its floor coverings and other
improvements which are not Building Standard, so long as Landlord
has notified Tenant in advance of the additional charges which
will be incurred relating to the cleaning of such items, and
Tenant has elected to have Landlord clean the same;
(5) passenger elevators for access to and from the floor(s)
on which the Premises are located and elevators within the parking
garage shall be made available 24 hours per day, 7 days per week,
and freight elevator service shall be available by a swing cab
(but only when scheduled through the Manager of the Building);
(6) toilet facilities in common with other tenants on the
floors occupied by Tenant;
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(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 as specified on Exhibit G hereto.
B. Additional Services. Landlord shall not be obligated to furnish
any services or utilities other than those stated in Section 7.A. above. If
Tenant should require electric current, water or any other energy in excess of
the amounts provided by Landlord pursuant to Section 7.A. above, such excess
electric current, 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, and Tenant shall also pay the entire cost of such
excess electric current, water or other energy requirement. 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,
and Landlord also 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.
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; provided, however, that the
foregoing notwithstanding, in the event Tenant is deprived of elevator, water,
electricity or HVAC service for a period exceeding seven (7) consecutive days,
and as a result thereof Tenant is unable to and does not in fact conduct a
material portion of its business from the Premises or any portion thereof, then
from and after such seventh (7th) day Tenant shall be entitled to xxxxx its Rent
obligations hereunder as to the Premises or the portion thereof which is not
usable (and not used) until such time as the elevator, water, electrical or HVAC
service (as applicable) is restored. If Tenant is deprived to any material
extent of elevator, water, electricity or HVAC service for a period exceeding
seven (7) consecutive days, and Tenant continues to conduct its business from
the entire Premises but the conduct of such business is materially and adversely
affected by the lack of such service or services, then Tenant shall be entitled
to an equitable abatement of a portion of its Rent obligations hereunder from
and after such seventh (7th) day until the applicable service is restored, based
on a reasonable
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evaluation of the impact which the lack of such service or services had on the
conduct of Tenant's business in the Premises.
8. REPAIRS.
A. Repairs Within the Premises. Subject to the terms of Sections
6B, 7.A.(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 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 Landlord's
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 to be performed by Tenant under this Section 8.A. 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. Notwithstanding
anything contained in the Lease to the contrary, Tenant shall not be required to
perform any repairs or replacements in or to any portion of the Premises with
respect to any damage or condition which is covered under any warranties of
Landlord's contractors or subcontractors, so long as such warranty is in effect
and no act or omission of Tenant has negated the coverage.
B. Landlord's Entry. If 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 8.A., 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 the same, as additional Rent
hereunder. Landlord may, but shall not be required to, enter the Premises at all
reasonable times on prior telephonic notice and accompanied by a representative
of Tenant (except in cases of actual or suspected emergency, in which case no
prior notice and no accompaniment by a Tenant representative shall be required)
for the purpose of inspecting, repairing or maintaining the same. Tenant agrees
to use commercially reasonable efforts to have available a representative of
Tenant to accompany Landlord upon request, if required by the preceding
sentence. Landlord shall take reasonable steps in connection with such entry to
minimize any disruption to Tenant's business or its use of the Premises, and
Landlord agrees that such entry shall be made only during normal business hours,
unless otherwise agreed to in advance by Tenant. Landlord agrees not to store
materials at the Premises, and not to stage any work to other portions of the
Complex from the Premises unless no other reasonable alternative for such
staging exists. Landlord and Tenant acknowledge that Tenant's business involves
certain information or materials, access to which is restricted under federal
laws. Landlord agrees that it shall include a provision in any contract with the
janitorial service for the Premises which requires such
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contractors to comply with any federal, state, and or local hiring requirements,
particularly those requirements relating to immigration and naturalization, and
Tenant agrees that it shall use commercially reasonable efforts to ensure that
such restricted material is secured in such a fashion that it cannot be accessed
by anyone other than Tenant's own employees.
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, water,
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.
D. Landlord's Repair Obligations. In addition to the repair
obligations set forth in Section 7.A.(1) above, Landlord shall keep the common
areas in the Complex in good condition, order and repair throughout the Term,
ordinary wear and tear and damage by fire or other casualty excepted. Tenant
shall have the non-exclusive right to use such common areas.
9. ADDITIONS, IMPROVEMENTS, AND ALTERATIONS. Except as set forth in the next
sentence, Tenant shall not, without the prior written consent of Landlord, make
any alterations, improvements or additions to the Premises. Notwithstanding the
foregoing, Tenant shall have the right to install new carpeting within the
Premises, to paint the interior of the Premises, or to install phone and data
cabling within the Premises without obtaining the prior written consent of
Landlord, so long as such alterations do not affect the structural integrity of
the Building, or any part of the heating, ventilating, air conditioning,
plumbing, mechanical, electrical, communication or other systems of the
Building, and so long as such alterations do not cost more than an aggregate
amount per year of $100,000. If the alterations, improvements or additions
proposed by Tenant affect the structural integrity of the Building, or any part
of the heating, ventilating, air conditioning, plumbing, mechanical, electrical,
communication or other systems of the Building, or if such alterations,
improvements or additions are visible from the exterior of the Premises, then
Landlord may grant or withhold its consent in its sole discretion. For all other
alterations, improvements or additions for which Landlord's consent is required,
Landlord's consent shall not be unreasonably withheld, conditioned, or delayed.
If Landlord consents to such alterations, improvements or additions, it may
impose such conditions with respect thereto as Landlord reasonably deems
appropriate, including, without limitation, requiring Tenant to furnish Landlord
with insurance against liabilities which may arise out of such work, a bond or
other security for Tenant's obligations to pay for such work, plans and
specifications for Landlord's approval prior to commencement of construction,
copies of all permits necessary for such work (and in connection therewith,
Landlord agrees to cooperate with Tenant to obtain such permits, at no cost to
Landlord) 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 Tenant's
expense by employees of or contractors hired by Tenant and
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approved by Landlord; provided, however, that Landlord may require that any such
work affecting the structural integrity of the Building, or any part of the
heating, ventilating, air conditioning, plumbing, mechanical, electrical,
communication or other systems of the Building, be performed only by the
Building approved contractors for those systems. 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, warranties 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; provided, however, that Tenant may remove any of
such alterations, additions and improvements which Landlord and Tenant agree in
writing may be removed from the Premises at the expiration of the Term or sooner
termination of this Lease (such agreement not to be unreasonably withheld), and
Tenant shall remove any of such alterations, additions and improvements which
Landlord and Tenant agree in writing shall be removed from the Premises at the
expiration of the Term or sooner termination of this Lease. Landlord and Tenant
shall enter into a written agreement concerning the removal of any such
alterations, additions or improvements prior to or at the time of installation
thereof. 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 expiration or termination of this
Lease by lapse of time or otherwise and shall be relinquished to Landlord in
good order, repair and condition, ordinary wear and tear and, subject to
Tenant's duty to carry insurance as required by this Lease, damage from fire or
other casualty excepted.
10. COVENANT AGAINST LIENS.
A. Mechanics Liens. Tenant covenants and agrees not to suffer or
permit any lien of mechanics or materialmen or others to be placed against the
Complex, the Building, 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. Landlord shall have the right to serve or to post and
keep posted on the Premises, or on any part thereof, any notice or notices that
may at any time be required or permitted by any law relating to, or any way
affecting, the liability of the owner of the Complex for labor performed or
materials furnished in or about the erection or construction of any improvements
thereon at the instance of any person other than said owner. Within five (5)
business days after written request by Landlord, Tenant shall post any such
notices or take such other steps, at the expense of Tenant, as may be required
or permitted by law to protect Landlord's interest in the Premises against such
liens. In case any such lien attaches, Tenant covenants and agrees to inform
Landlord immediately of such lien and to cause it to be immediately released and
removed of record. If Tenant fails to cause such lien to be released and removed
of record within 20 days after the filing of such lien, Landlord may, at its
sole option, cause the same to be paid and released, and Tenant shall then
promptly reimburse Landlord, as additional
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Rent hereunder, for all of Landlord's costs (including attorney's fee) incurred
in connection with such liens.
B. Sales, Use, Income And Personal Property Taxes. Tenant shall
promptly pay and discharge, on or prior to their due dates, all sales, use,
personal property, income and other taxes, and all employee income tax
withholdings, due to any governmental entity or taxing authority, failure to pay
which might subject any of Landlord's property to a lien. If Tenant fails so to
pay any such taxes or withholdings, and if Landlord shall reasonably determine
that any of Landlord's property is in danger of being subject to a lien because
of such unpaid taxes or withholdings, then Landlord shall have the right but not
the obligation, after notice to Tenant as provided in Section 24.A.(l), to pay
such taxes and withholdings, and the amount so paid, together with interest
thereon as provided in Section 29.B., shall constitute additional Rent under
this Lease due and payable from the date so paid by Landlord.
11. INSURANCE.
A. Waiver Of Subrogation. Notwithstanding anything to the contrary
contained herein, 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" casualty 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 casualty 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. Tenant shall obtain from its insurers and deliver to Landlord
endorsements or written waivers of subrogation, or other written evidence
satisfactory to Landlord, that each of Tenant's insurers is bound by Tenant's
waiver of subrogation. If Landlord adopts a plan of self-insurance with respect
to those portions of the Building or Premises which Landlord may be obligated to
repair or restore under Section 12.A. (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, in form and substance,
and issued by companies, acceptable to Landlord in its reasonable judgment,
provided that Landlord may from time to time require reasonable increases in the
limits set forth below:
(1) Liability Insurance. Commercial General liability
insurance with combined single limits of not less than $2,000,000
for bodily injury, 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.
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(2) Property Insurance. An "all risk" casualty insurance
policy in the amount equal to the full replacement cost of all
leasehold improvements, alterations and additions to the Premises
which are in excess of or in addition to Building Standard, and of
Tenant's office furniture, trade fixtures, office equipment,
merchandise and all other items of Tenant's property on the
Premises.
(3) Workers' Compensation And Tenant's Contractors. A
workers' compensation insurance policy in at least the amount
required by law, and employer's liability insurance with limits of
at least $500,000 each occurrence. In addition, Tenant shall
require all of Tenant's contractors and suppliers that will
perform work on the Premises to deliver to Landlord, prior to the
commencement of such work, certificates of insurance evidencing
that such contractors carry Commercial General liability insurance
in the amount of at least $1,000,000, workers' compensation
insurance in the amount required by law, and employees liability
insurance with limits of at least $500,000 each occurrence. The
requirements of this subsection (3) shall also apply independently
to all subcontractors and suppliers to Tenant's contractors and
suppliers unless claims by or against them are covered by the
insurance carried by Tenant's contractors and suppliers.
(4) Form Of Policies. All policies evidencing the coverage
required under this Section 11.B. shall be issued by carriers with
a rating of A-X or better by A.M. Best Company, Inc. and licensed
to do business in the State of Colorado (except that the workers
compensation insurance may be provided by the State of Colorado)
and shall provide that (a) the coverage is primary and
noncontributing to any insurance that may be Carried by Landlord;
(b) the coverage cannot be canceled, modified, reduced, or
otherwise materially changed except after 30 days' prior written
notice to Landlord, and (c) Landlord is a named additional insured
(except that Landlord need not be so named in Tenant's workees
compensation policy). Tenant shall furnish Landlord with true
copies of all policies or certificates of insurance evidencing
such coverage promptly on receipt. Notwithstanding that Landlord
is a named additional insured, Tenant shall be solely responsible
for timely payment of all premiums and timely performance of all
other obligations under all policies, including but not limited to
all reporting requirements. True copies of all receipts of payment
in full of premiums shall be given by Tenant to Landlord not less
than 15 days before the due dates of such premiums.
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 Building, Premises or Complex 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 require additional
insurance coverage. In no event shall Tenant permit in the Premises flammables
such as gasoline, turpentine, kerosene, naphtha and benzine, or explosives or
any other article of intrinsically dangerous nature, and in no
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event shall Tenant, its agents, employees, invitees, visitors, licensees,
contractors, suppliers or workmen 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 11.C., (i) any insurance coverage is jeopardized, Landlord
shall have the option to terminate this Lease or (ii) insurance premiums are
increased or additional coverage is required, Landlord may require Tenant to
make immediate payment of the increased insurance premium as additional Rent
hereunder.
D. Notices By Tenant's Insurance Carrier To Landlord. Whenever in
this Lease (whether in Section 11.B. or elsewhere), any notice is given or is
required to be given, to Landlord by Tenant's insurance carrier, such notice
must actually be given by each such carrier to Landlord, and any provision in
any policy, certificate of insurance or elsewhere providing that notice to
another insured under that policy, or to any other person, shall constitute or
be deemed to be notice to Landlord shall be ineffective and shall be changed by
endorsement so that notice is actually given by such carrier to Landlord itself.
Tenant shall also provide to Landlord such written evidence of compliance with
this Section 11.D. as Landlord may reasonably request.
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 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 20 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 10 days after notice of termination is delivered;
provided, however, that Rent for the period commencing on the date of such
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. If the
repairs and restoration are not completed by Landlord within the period
originally estimated by Landlord, plus an additional number of days equal to
thirty percent (30%) of the number of days originally estimated, then Tenant
shall have the right to terminate this Lease, upon ten (10) days written notice
delivered to Landlord, so long as the repairs remain incomplete. Whether or not
this Lease is terminated, all proceeds of insurance required to be carried by
Tenant with respect to alterations, additions, and improvements under this Lease
shall be used for such repairs and restoration as are made, and paid to Landlord
to the extent not made. Except as set forth above, Landlord shall have no
liability to Tenant and Tenant shall not be entitled to terminate this Lease in
the event
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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 12.A. 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. To the extent not prohibited by law,
Landlord and its partners, and its and their partners, venturers, managers,
officers, agents, servants, employees, affiliated limited liability companies,
and other affiliated entities 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 partners, 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, indemnify and save harmless Landlord and
its partners, and its and their partners, venturers, managers, officers, agents,
servants and employees, affiliated limited liability companies, and other
affiliated entities from and against all claims, liabilities, losses, damages or
expenses made against or incurred by Landlord attributable to the negligence,
willful misconduct or breach of this Lease by Tenant or its partners, officers,
servants, agents, employees, contractors, suppliers, licensees, visitors,
workmen or invitees. Without limitation of any other provisions hereof and to
the extent not prohibited by law, Landlord agrees to defend, protect, indemnify
and save harmless Tenant and its members, partners, venturers, managers,
officers, agents, shareholders, servants and employees from and against all
claims, liabilities, losses, damages or expenses made against or incurred by
Tenant attributable to the negligence, willful misconduct or breach of this
Lease by
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Landlord or its partners, officers, servants, agents, employees, contractors,
suppliers, licensees, visitors, workmen or invitees. The indemnifications set
forth in this Section shall survive termination of this Lease.
14. NONWAIVER; ACCEPTANCE OF RENT OR PERFORMANCE AFTER BREACH. No waiver of any
condition, covenant or provision of this Lease shall be implied by any failure
of Landlord to enforce any remedy on account of the violation of such condition,
covenant or provision even if such violation be continued or repeated
subsequently, and no express waiver shall affect any condition, covenant or
provision other than the one specified in such waiver and that one only for the
time and in the manner specifically stated. Acceptance by Landlord of Rent or
other performance by Tenant, after Landlord has knowledge of any breach or
default under this Lease by Tenant, shall not constitute a waiver by Landlord of
such breach or default, nor prevent Landlord from enforcing any remedy for that
or any other breach or default.
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 earlier of the date when
title to or 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 Landlord's 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 60 days after the taking or sale. If less than the whole or substantially
the whole 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 or sale. Such termination by Tenant must be exercised by written notice
to Landlord given not later than 60 days after Tenant is notified of the taking
or sale of the Premises. Termination by Landlord or Tenant shall be effective as
of the earlier of the date when title to or 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 or sale 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 or sale, 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 or sold. As between the parties to this Lease, Landlord
will be entitled to receive all of the compensation and damages awarded upon a
taking or sale 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 in favor of Landlord all claim to
any of the award or damages, including any compensation for the unexpired term
of this Lease. The foregoing shall
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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
compensation or damages resulting from the taking of Tenant's trade 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, encumber, or mortgage this Lease or any
interest hereunder; (ii) suffer to occur or permit to exist any assignment of
this Lease or any interest hereunder, or any lien upon Tenant's interest or any
part thereof, voluntarily, involuntarily or by operation of law; (iii) sublet
the Premises or any part thereof; or (iv) permit the use of the Premises or any
part thereof 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 "Guarantee") shall be deemed to be an
assignment of this Lease. A "change in ownership" shall be deemed to have
occurred (a) where the voting interest of any party or group of parties who are
not currently shareholders of Tenant increases or decreases by a percentage
which causes a change of effective control (provided, however, that this
provision shall not apply to an initial public offering, or to transfers of the
stock of a publicly traded corporation); or (b) upon the distribution of over
50% of any entity's assets, or if the value of assets sold (net of undistributed
consideration received) exceeds 50% of asset value. Landlord's consent to any
assignment, subletting, transfer, or to any other matter set forth above in this
Section 16, shall not constitute a waiver of Landlord's right to withhold its
consent to any future assignment, subletting or transfer, or to any such other
matter.
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 the Premises or sublease of all of the Premises which is to
occur subsequent to the earlier of (i) the date upon which at least 75% of the
Rentable Area of the Building has been leased, or (ii) six 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,
whether the use by the proposed assignee or sublessee will be the same as that
of Tenant, and Landlord's judgment of the proposed assignee's or subtenant's
insufficient financial capacity or business experience to perform Tenant's
obligations under this Lease or of its poor business reputation. With respect to
any proposed assignment or sublease other than those specified in the preceding
sentence, Landlord may withhold its consent in its sole discretion, for any
reason, or for no reason.
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 Rent and
other sums payable by Tenant under this Lease. In addition, Landlord shall be
entitled to so receive and collect fifty percent (50%) 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 excess of the amounts payable by Tenant
to Landlord under this Lease (whether such excess is payable by such assignee or
subtenant in monthly installments, in a lump sum, or otherwise).
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In addition, notwithstanding the foregoing provisions, Tenant may
assign this Lease or sublet the Premises or any portion thereof, without
Landlord's consent, to any corporation which controls, is controlled by, or is
under common control with Tenant, or to any corporation resulting from a merger
or consolidation with Tenant, or to any person or entity which acquires
substantially all the assets of Tenant as a going concern (collectively, an
"Affiliate"), provided that the Affiliate assumes in writing all of Tenant's
obligations under this Lease, and provided further that such Affiliate has a net
worth (or, provided Tenant survives as an entity and remains liable under this
Lease, such Affiliate has a net worth, when combined with the net worth of
Tenant) which represents no material adverse change from Tenant's net worth at
the time of such transfer, as certified in financial documentation presented to
Landlord prior to such assignment or subletting.
Tenant acknowledges that the conditions, covenants and provisions in this Lease,
including but not limited to those in this Section 16, have been fully and
freely negotiated.
17. SURRENDER OF POSSESSION. Upon the expiration or termination of the Term,
whether by lapse of time or otherwise, 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 tear, and, subject to Tenant's
duty to carry insurance as required by this Lease, 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 the expiration or sooner termination of this
Lease; provided, however, that Tenant may remove any of such alterations,
additions and improvements which, as provided in Section 9 above, Landlord and
Tenant agree in writing may be removed from the Premises at the expiration of
the Term or sooner termination of this Lease (such agreement not to be
unreasonably withheld). Except as provided in Section 9 to the contrary, all
such alterations, improvements and additions shall remain Landlord's property at
the termination or expiration of this Lease whether by lapse of time or
otherwise, and shall be relinquished to Landlord in good order, repair and
condition, ordinary wear and tear and, subject to Tenant's duty to carry
insurance as required by this Lease, damage by fire or other casualty excepted.
Tenant agrees to remove, at such expiration or 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 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 thereof 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.
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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.
B. Taxes on Certain Improvements, Alterations and Conditions.
Tenant shall also be responsible for all taxes or other governmental impositions
levied upon or assessed against any improvements, alterations, or additions to
the Premises to the extent that the same exceed or are in addition to Building
Standard, and if the taxing authorities do not separately levy or assess such
excess or additional improvements, alterations, or additions, Landlord may make
a reasonable allocation of such taxes or other governmental impositions to the
same.
C. LANDLORD'S LIEN. Intentionally deleted.
19. HOLDING OVER. If Tenant shall hold over after the expiration or termination
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 Annual Rent, payable in advance, equal to 150% of monthly Annual
Rent payable during the last Lease Year of the Term, and Tenant shall be bound
by all of the other covenants, conditions and provisions 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) business 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 force and effect); (ii) the dates on which the Commencement
Date occurred and the Expiration 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 to the best of Tenant's knowledge (without any
duty of independent inquiry), neither Tenant nor 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 there are any, specifying same; (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; and (vii) such
other matters as may be reasonably requested by Landlord. It is intended that
any such statement may be relied upon by Landlord, any prospective purchaser or
tenant of the Building, any mortgagee or prospective mortgagees thereof or any
prospective assignee of any mortgage thereon. In addition, at either party's
request, the other party shall execute either an estoppel certificate or a
three-party agreement among Landlord, Tenant and any third
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party dealing with the requesting party certifying to such facts (if true) and
other matters as such third party may reasonably request in connection with the
business dealings of the requesting party.
21. OBLIGATIONS TO MORTGAGEES AND LESSORS.
A. Subordination. This Lease shall be subject and subordinate to
the lien of the existing deed of trust encumbering the Complex, and upon Tenant
executing and furnishing the form to Landlord executed by Tenant, Landlord shall
request from the holder of such existing deed of trust on the Building a
subordination, nondisturbance and adornment agreement executed by such holder,
in the form of such agreement customarily used by such holder, which is attached
as Exhibit H hereto. At Landlord's option, this Lease may also be made subject
and subordinate to future ground or underlying leases of the Land and to the
lien of any mortgages or deeds of trust, hereafter in force against the Land,
Complex or Building, or any of them, and to all renewals, extensions,
modifications, consolidations and replacements thereof, and to all advances made
or hereafter to be made upon the security of such mortgages or deeds of trust.
Tenant shall, within 10 days after Landlord's request for the same, 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, deeds
of trust, ground leases or underlying leases, or, if requested by any mortgagee,
beneficiary of a deed of trust, or underlying or ground lessor, to make Tenant's
interest in this Lease superior to the interest of such mortgagee, beneficiary
of a deed of trust, or underlying or ground lessor. It is further agreed that
upon the request of the mortgagee or beneficiary of a deed of trust, if the
mortgage or deed of trust 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 or underlying lessor, if any ground or
underlying lease shall be terminated, Tenant will attorn, as Tenant under this
Lease, to the ground or underlying lessor; and, in either case, Tenant will
execute, within 10 days after a request therefor, such instruments as may be
necessary or appropriate to evidence such attornment. As a condition precedent
to the effectiveness of any such subordination of this Lease to any future
ground or master lease or the lien of any future mortgage or deed of trust,
Landlord shall provide to Tenant a nondisturbance agreement in favor of Tenant
executed by such future ground lessor, master lessor, mortgagee or deed of trust
beneficiary, as the case may be, on the form then in use by such ground lessor,
master lessor, mortgagee or deed of trust beneficiary, which form shall be
reasonably acceptable to Tenant, and which shall provide that Tenant's quiet
possession of the Premises shall not be disturbed on account of such
subordination to such future lease or lien so long as Tenant is not in default
under any provisions of this Lease.
B. Notice To Landlord, Mortgagees, And Lessors. In the event of
any act or omission by Landlord which would give Tenant the right to seek
damages or specific performance from Landlord or the right to terminate this
Lease, Tenant will not xxx for such damages or specific performance 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 and
lessor(s) of any ground or underlying lease, if the name
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and address of such holder(s) or lessor(s) have been furnished to Tenant, and
(ii) the lesser of 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 lessor(s), or any 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:
(1) to change the name or street address of the Complex or
the Building, with two (2) months prior written 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 commercially reasonable prior notice of any such actions in
the Premises. Landlord shall take reasonable steps in connection
with such actions to minimize any disruption to Tenant's business
or its use of the Premises, and none of the actions taken by
Landlord pursuant to this paragraph shall increase the Rentable
Area of the Premises or reduce the number of usable square feet
within 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), unless the same is caused by the gross negligence or
willful misconduct of Landlord, its agents, employees or
contractors. Upon the expiration or termination of the Term or of
Tenant's right to possession, Tenant shall return all keys to
Landlord and shall disclose to
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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 lesser of the
legal live load per square foot or the 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 during the last six months of the Term, upon
commercially reasonable prior notice to Tenant (which, for
purposes of this paragraph, may be telephonic notice); and
(8) to erect, use and maintain unexposed pipes, ducts,
wiring and conduits, and appurtenances thereto, in and through the
perimeter of the walls of the Premises and above the dropped
ceiling, outside of normal business hours (except in the event of
an emergency which requires work on such pipes, ducts, wiring and
conduits during normal business hours).
23. RULES AND REGULATIONS. Tenant covenants and agrees to keep and observe the
rules and regulations attached to this Lease as Exhibit E 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 amended and additional
rules and regulations shall become a part of this Lease; provided that all such
additional rules and regulations are reasonable, and that Landlord shall use
reasonable efforts to ensure that all such rules and regulations are uniformly
applied and nondiscriminatorily enforced. 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.
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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 When Due. If
Tenant fails more than two times during any twelve-month period
during the Term (having been notified in writing at least one of
such two times within such twelve-month period) to pay within five
(5) days of the date when due Annual Rent, Additional Rent, or any
other Rent or amounts payable by Tenant under the terms of this
Lease. Tenant shall in all events pay interest as provided in
Section 29.B. on all Annual Rent, Additional Rent and other Rent
and amounts owed from their respective original due dates until
paid, unless the same was rightfully abated under the terms of
this Lease.
(2) Failure to Deliver Required Documents. If Tenant fails
to deliver an estoppel certificate required by Section 20 above,
or an instrument required by Section 21.A. above, in either case
within the applicable number of days set forth in those Sections
after Tenant's receipt of a request therefor.
(3) Violation of Other Lease Terms. If Tenant breaches or
fails to comply with any other covenant or provision of this Lease
applicable to Tenant, and such breach or failure to comply is not
covered by the provisions of Section 24.A.(1) above and continues
for a period of 30 days after notice thereof by Landlord to
Tenant, or, if such breach or failure to comply cannot be
reasonably cured within such 30-day period, if Tenant shall not in
good faith commence to cure such breach or failure to comply
within such 30-day period or shall not diligently complete such
cure within 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 in 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 30 days after such notice. For purposes of this
Section 24.A.(2), financial inability shall not be deemed a
reasonable ground for failure to immediately cure any breach of,
or failure to comply with, the covenants and provisions of this
Lease.
(4) NONOCCUPANCY OF DEMISED PREMISES. If Tenant shall fail
to occupy and use the Premises within 15 business days after
commencement of the Term or shall leave the Premises unoccupied
for 15 consecutive business days or shall vacate and abandon the
Premises.
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(5) Transfer of Interest Without Consent. If Tenant's
interest under this Lease or in the Premises shall, in whole or in
part, be transferred to or pass to or devolve upon any other party
in violation of the covenants and provisions of Section 16, or if
Tenant shall in any other way fail to comply with Section 16.
(6) 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 15 days after the levy thereof
(7) Bankruptcy or Related Proceedings. If Tenant shall file
a petition in bankruptcy or insolvency or for reorganization or
arrangement or to delay, reduce or modify Tenant's debts or
obligations, under the bankruptcy laws of the United States or
under any similar act of any state, or Tenant shall voluntarily
take advantage of any such law or act by answer or otherwise, or
shall be dissolved, or shall be declared insolvent, 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 60 days after such institution or
appointment.
(8) Maintenance of Tenant's Legal Status. If (i) Tenant is
a corporation, partnership, limited liability company, limited
partnership or other entity and Tenant shall for any reason fail
to maintain its existence and good standing under the laws of the
jurisdiction of its formation; or (ii) if Tenant is an entity
formed under the laws of a jurisdiction other than Colorado, and
if Tenant or any of its principals, partners or other constituents
is required by the laws of Colorado to qualify and maintain its
qualification to transact business in Colorado, and Tenant or any
of such principals, partners or constituents fails for any reason
to do so; or ( iii) if Tenant is a partnership or other entity and
Tenant is dissolved or otherwise liquidated.
B. Landlord's Remedies. Subject to Section 29.S, time is of the
essence hereof. Upon the occurrence of any Event of Default, Landlord shall
have, in addition to all other rights and remedies provided in this Lease or at
law or in equity, the right, at Landlord's election, then or at any 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
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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 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 attorneys' fees, together with
interest at the rate described in Section 29.B., 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,
if 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 total of the following:
i) the cost, including reasonable attorneys' fees,
of demanding and recovering the Premises;
ii) all unpaid Annual Rent, Additional Rent and any
other Rent earned at the time of termination of this Lease,
plus interest thereon at the rate as set out in Section
29.B.; and
iii) all other money and damages owed by Tenant to
Landlord pursuant to the terms and conditions of this
Lease.
In addition, Landlord shall also be entitled to recover
from Tenant as damages the amounts determined at Landlord's
election under either (x) or (y) below:
(x) Annual 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, received by
Landlord from any reletting of the Premises by Landlord
subsequent to such termination, after deducting all
Landlord's expenses in connection with finding a new tenant
and such recovery of possession and reletting, including
tenant improvements, remodeling and refinishing space for a
new tenant, reasonable and customary tenant inducements and
abatements, brokerage fees or agents' commissions in
connection therewith, redecorating costs, reasonable
attorneys' fees, and other costs and expenses incident to
recovering and reletting the Premises; provided that such
costs shall be reduced proportionately to include only the
portion thereof reasonably attributable to the Premises, if
the new lease includes space in addition to the Premises,
or reasonably attributable to the period of time included
within the remaining Term of this Lease, if the new Lease
is for a longer term than such remaining Term hereunder;
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and Landlord shall be entitled to collect and receive such
damages from Tenant on the days on which the Annual Rent,
Additional Rent and other Rent and sums would have been
payable if this Lease had not been terminated.
(y) 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 Annual
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 3% per
Calendar Year, compounded annually, over the amount of
Additional Rent payable for the Calendar Year in which
termination occurs), over (b) the amount, if any, of such
Annual Rent, Additional Rent and other Rent and sums which
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, and
the costs which Landlord might incur in leasing the
Premises to a new tenant, including those listed in
paragraph (x) above. Such present value shall be calculated
at a discount rate of eight percent (8%) per annum.
(3) Repossession and Reletting. Upon an Event of Default,
Landlord may immediately or at any time thereafter, and with legal
process, reenter and take possession of the Premises or any part
thereof, and, except as may otherwise be required by law
applicable to this Lease, 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 (Tenant hereby
waiving any claim except claims arising out of Landlord's failure
to exercise such care as to Tenant's property as may be required
by law applicable to this Lease), and without prejudice to any
remedies for arrears of rent or right to bring any proceeding for
breach of covenants or provisions of this Lease. 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 by
Landlord. 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. Notwithstanding the foregoing, Landlord
agrees to use the
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procedure provided in C.R.S. Title 13, Article 40 (or the
equivalent procedure, if any provided in the Colorado statutes in
existence at the time) in any eviction of Tenant from the Premises
hereunder. 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 agreements,
covenants, provisions and conditions and upon such other terms as
Landlord, in its discretion, may determine. Landlord may make such
repairs, alterations and improvements as are commercially
reasonable to accomplish such reletting, and Tenant shall
reimburse Landlord upon demand for all costs and expenses
(together with interest thereon at the rate set out in Section
29.B.), which Landlord may incur in connection with such
repossession or reletting, including tenant improvements,
remodeling and refinishing space for a new tenant, reasonable and
customary tenant inducements and abatements, brokerage fees or
agents' commissions in connection therewith, redecorating costs,
reasonable attorneys' fees, and other costs and expenses incident
to repossessing and reletting the Premises. Landlord may collect
and receive the rents for such reletting but, except as provided
below with respect to Landlord's duty to use good faith reasonable
efforts to relet the Premises, Landlord shall in no way be
responsible or liable for any failure to relet the Premises, or
any part thereof, or for any failure to collect any rent due upon
such reletting. Landlord shall have no duty to attempt to mitigate
its damages by retaking and relenting the Premises, except that if
Landlord does retake possession of the Premises under either
Section 24.B(2) or this Section 24.B(3), Landlord shall use good
faith reasonable efforts to relet the Premises, subject to the
following terms, conditions and limitations: (a) any reletting of
the Premises shall be on the terms and conditions determined by
Landlord in its reasonable good faith discretion and to such
tenants as Landlord shall approve in its reasonable good faith
discretion. Without limiting the generality of the foregoing,
Tenant acknowledges that, in reletting the Premises, Landlord may
legitimately consider the effect of any such reletting on the
Building and on any other buildings owned by Landlord or any other
person or entity controlling, controlled by, or under common
control with Landlord, or otherwise affiliated with Landlord
(which parties are referred to herein collectively as "Landlord
Affiliates"), and, therefore, may decide not to lease the Premises
at rates which are lower than Landlord is otherwise endeavoring to
maintain in the Building, or at rates which are lower than the
rate that Landlord believes to be appropriate for the Premises;
and (b) Tenant recognizes that Landlord and Landlord's Affiliates
currently and in the future may have vacant space in the Building
and other buildings and may in the future also have vacant space
in new projects in competition with the Premises. In no event
shall Landlord be obligated to use any effort to relet the
Premises in preference to leasing any such other vacant space then
available for leasing by Landlord or any of Landlord's Affiliates.
Landlord shall not be deemed to
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have failed to mitigate damages solely on account of the leasing
of other space which Landlord or Landlord's Affiliates have
available instead of the reletting of the Premises.
Notwithstanding Landlord's recovery of possession of the Premises,
Tenant shall continue to pay on the dates herein specified, the
Annual Rent, Additional Rent and other Rent and sums which would
be payable hereunder if such repossession had not occurred,
together with interest thereon as set forth in Section 29.B.,
less a credit for the net amounts, if any, after payment by
Landlord of all of its costs and expenses 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 to
or less than the amounts recoverable, either as damages or rent
under this Lease.
C. Concurrent Or Subsequent Exercise Of Remedies. 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.
D. Choice Of Law, Jurisdiction And Venue. This Lease is declared
to be a Colorado contract, and all of the covenants, conditions and provisions
of this Lease shall be construed and enforced according to the laws of the State
of Colorado. Any action or proceeding against Tenant relating in any way to this
Lease may be brought and enforced in the District Court in and for the City and
County of Denver, Colorado, or the United States District Court for the District
of Colorado, and Tenant irrevocably submits to the personal jurisdiction of each
such court in respect of any such action or proceeding. So long as Tenant has
any obligation under this Lease, it will maintain a duly appointed agent in
Denver, Colorado, for personal service of such process and, if it fails to
maintain such an agent, any such process may be served by serving a copy thereof
upon the Colorado Secretary of State, by mailing a copy thereof by United States
Postal Service certified mail addressed to Tenant at its address as provided for
notices hereunder, or by any other means permitted under the rules of federal or
state courts in Colorado. Any judgment so obtained in the state or federal
courts in Colorado may be enforced and levied upon in the courts of any
jurisdiction in which Tenant or any of its property may be found, and Tenant
irrevocably submits to the personal jurisdiction of each such court in respect
of any such action or proceeding. Tenant irrevocably waives, to the fullest
extent permitted by applicable law, any objection that it may now or hereafter
have to personal jurisdiction or venue of any such action or proceeding in the
District Court in and for the City and County of Denver, Colorado, or the United
States District Court for the District of Colorado, and any claim that any such
action or proceeding brought in such court has been brought in an inconvenient
forum.
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25. EXPENSES OF ENFORCEMENT. Tenant shall pay upon demand all Landlord's costs,
charges and expenses, together with interest thereon as provided in Section
29.B., including the fees and out-of-pocket expenses of attorneys, agents and
others retained by Landlord, incurred in successfully enforcing Tenant's
obligations hereunder. Landlord shall pay upon demand all Tenant's costs,
charges and expenses, together with interest thereon as provided in Section
29.B., including the reasonable fees and out-of-pocket expenses of attorneys,
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 covenants, conditions, and provisions
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 covenants, conditions, and provisions 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 letter of credit in the form attached as Exhibit I hereto, in an
amount equal to the total amount of Annual Rent which shall be due from Tenant
hereunder for Lease Year 5, as security for the prompt, full and faithful
performance by Tenant of each and every covenant, condition, and provision of
Tenant under this Lease. The terms governing the letter of credit are further
described in Section 6 of Exhibit A hereto. Landlord shall not be required to
account for interest or to pay interest to Tenant on the Security Deposit.
(1) If Tenant fails to perform any of its monetary covenants,
conditions, or provisions hereunder, Landlord may draw on the letter of credit
(or on any cash deposited by Tenant as a replacement for the letter of credit,
as provided in Section 6 of Exhibit A hereto) in order to 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 conditions,
covenants, and provisions of 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; provided, however, that Landlord shall not
be entitled to draw upon the letter of credit for amounts in excess of the
amounts owed to Landlord as set forth in (i) through (iii) immediately above.
The use, application or retention of the Security Deposit, or any portion
thereof, by Landlord shall not prevent Landlord from having or 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. Without limiting the generality of the preceding
sentence, Landlord shall be entitled to any interest elsewhere provided in this
Lease notwithstanding that Landlord has applied any portion of the Security
Deposit against the unpaid Rent or other sums against which interest is
accruing. If any portion of the Security Deposit is used, applied or retained by
Landlord for the purposes set forth above, Tenant agrees, within 10 days after
the written demand therefor is made by
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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
conditions, covenants, and provisions of this Lease, the Security Deposit, or
any balance thereof, shall be returned to Tenant without interest within 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 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, Building, and Complex, 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. Each party represents to the other that it has dealt
with no broker, real estate person, or finder in connection with this Lease
other than the broker or brokers, if any, named in Sections 1.A.(7) and 1.A.(8)
and that insofar as the party making the representation knows, no other broker,
real estate person, or finder negotiated this Lease or is entitled to any
commission or fee in connection herewith. Each party agrees to indemnify, defend
and hold the other party free and harmless from and against all claims for
broker's and real estate commissions or finder's fees by any person claiming to
have been retained by, or furnished services to, the party making the
representation the party making the representation in connection with this
transaction, other than the broker or brokers, if any, named in Section 1.A.(7)
and 1.A.(8). No commission or fee shall be payable to any broker in connection
with any renewal of this Lease.
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. Interest. In addition to the rights and remedies under Section
24 or elsewhere in this Lease, Tenant covenants and agrees that all Annual Rent,
Additional Rent, and other Rent and sums due hereunder shall, upon becoming due
under this Lease and remaining unpaid when due, bear interest from the due date
until paid at the rate of 15% per annum, compounded monthly, and Tenant
covenants to pay the same.
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C. Binding Effect. Each of the covenants, conditions, and
provisions of this Lease shall, as the case may require, extend to and bind or
inure to the benefit not only of Landlord and Tenant, but also of their
respective successors or assigns, provided, however, that this clause shall not
permit any assignment, sublease or other matter by Tenant contrary to the
provisions of Section 16 hereof. The generality of the foregoing provisions of
this subsection C. shall not be limited by the use of such words as successor
landlord or Landlord's successors, assigns, successors in interest or transferee
in some Sections of this Lease and not in others.
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 covenants, 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 present or prospective lender,
purchaser or lessor requires, as a condition to its lending funds or purchasing
an interest in the Land or the Building, or entering into a ground or other
lease covering an interest in the Land or the Building, 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. Intentionally deleted.
I. Transfer of Landlord's Interest. Tenant acknowledges that
Landlord (and each successor landlord) has the right to transfer its interest,
by reason of this Lease, in any or all of the Land, Building and Complex, and
Tenant agrees that in the event of any such transfer Landlord (and each
successor landlord) shall automatically be released from all liability under
this Lease relating to periods after such respective transfer and Tenant agrees
to look solely to such respective transferee for the performance of the
obligations hereunder of Landlord (or such successor landlord) relating to
periods after such transfer.
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.
40.
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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 of 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. In no event shall any fiduciary relationship exist or be
implied between Landlord and Tenant.
M. Bills. Intentionally deleted.
N. Severability. If any covenant, condition or 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, it 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 covenant,
condition or provision shall be deemed to be deleted from this Lease. If such
covenant, condition or 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 in whole or in part 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. Tenant's Covenants Independent. It is the intent of the parties
that Tenant's covenants, conditions and provisions in this Lease are, and shall
be construed as independent and not dependent and that all Rent and other sums
shall be payable without offset, counterclaim, abatement, or reduction 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 as
holidays in the Rules and Regulations.
S. Force Majeure. Except as to the payment of money, when a period
of time is herein prescribed for action to be taken by either party, neither
party shall be liable or responsible for, and there shall be excluded from the
computation for any such period of time, any delays due to strikes, riots, acts
of God, shortages of labor
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or materials beyond the control of the performing party, war, governmental laws,
regulations or restrictions or any other cause of any kind whatsoever which is
beyond the control of the performing party. Subject to the preceding sentence,
time is of the essence of every part of this Lease.
30. LIMITATIONS ON LANDLORD'S LIABILITY. Any liability of Landlord for damages
for 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 or sales and insurance proceeds or claims
thereto, and no personal liability is assumed by, or may at any time be asserted
against, Landlord, any parent and affiliated corporations, partnerships, limited
liability companies, or other entities, its and their partners, venturers,
managers, principals or other constituents, 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. The foregoing
sentence is not intended to, and shall not, limit any right that Tenant might
otherwise have to obtain injunctive relief against Landlord or Landlord's
successors in interest or any suit or action in connection with enforcement or
collection of amounts which may become owing or payable under or on account of
insurance which Landlord or Landlord's successors in interest may maintain. If
Landlord or Landlord's successor in interest, 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 under this Lease, Tenant may seek specific
performance but shall not be entitled to damages therefor. Landlord's or such
successor'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 or such successor's protection
and, except as expressly provided in writing by Landlord or such successor after
it has made or given such review, supervision, comment or approval, 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 at the addresses set out below if delivered in person, including
delivery by a private courier or overnight delivery service; or (ii) three
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, to Denver Xxxxx
Development, LLC, at the Building, 0000 Xxxxx Xxxxxxxx, Xxxxxx, Xxxxxxxx 00000,
Attn: Property Manager, with a copy to Denver Xxxxx Development, LLC, 0000 Xxxx
Xxx Xxxx., 00xx Xxxxx, Xxxxxxx, Xxxxx 00000-0000, Attn: X. Xxxxxxxx Xxxxxxx, 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
Tenant's address at the Premises if such notice is given on or after the
Commencement Date, with a copy to Xxxxxxxxxx Hyatt & Xxxxxx, P.C., 000
Xxxxxxxxxxx Xxxxxx, Xxxxxx-Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000-0000, Attn:
Xxxxx X. Xxxxxx, or, in either case, at such other address or addresses as
either party may notify the other of in accordance with the terms hereof.
IN WITNESS WHEREOF, Landlord and Tenant have signed this Lease as of
the date first written above.
42.
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TENANT: LANDLORD:
iSKY, INC., a Delaware corporation DENVER XXXXX DEVELOPMENT, LLC,
a Delaware limited liability company
By: /s/ XXXXX X. XXXXX By: /s/ XXX XXXXX
------------------------------------ --------------------------------
Print Name: Xxxxx X. Xxxxx
-------------------- ------------------------------------
Its: Vice President Manager
---------------------------
ATTEST:
------------------------------
[SEAL]
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EXHIBIT A
0000 XXXXX XXXXXXXX
ADDITIONAL PROVISIONS
The following additional provisions are attached to and made a part of that
certain Lease Agreement between Denver Xxxxx Development, LLC, as Landlord, and
iSky, Inc., as Tenant. In the event of a conflict between the terms and
provisions of the remainder of the Lease and the terms and provisions of this
Exhibit A, the terms and provisions of this Exhibit A shall control.
1. OPTION TO RENEW. Tenant at its option may renew the term of this Lease for
one (1) additional term of five (5) years ("Renewal Option"). The Renewal Option
may be exercised by written notice delivered to Landlord at least twelve (12)
months before the expiration of the initial Term of this Lease; provided that at
the time of such notice and at the commencement of the renewal Term, no Event of
Default by Tenant as defined in this 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. Upon
the service of the notice and subject to the conditions set forth in the
preceding sentence, this Lease shall be extended by execution of an Amendment to
this Lease Agreement incorporating the renewal Term and the new Annual Rent rate
for the renewal Term, determined as provided below. The renewal Term shall
commence upon the expiration date of the initial Term of this Lease and expire
at midnight of the day prior to the annual anniversary of such date five (5)
years thereafter. The renewal Term shall include all of the Premises then
covered by the Lease, and shall be upon the same terms, covenants and conditions
as provided in this Lease for the initial Term, except that (i) the Annual Rent
not attributable to Initial Operating Expense Basic Cost payable during the
renewal Term shall be at the greater of (A) the fair market rental rate as
determined for such renewal Term pursuant to the next paragraph, which new
Annual Rent shall be designated by Landlord within thirty (30) days of Tenant's
exercise notice, or (B) the Annual Rent not attributable to Initial Operating
Expense Basic Cost for the final Lease Year of the initial Term, and (ii) the
Annual Rent shall also include a new amount for the Initial Operating Expense
Basic Cost, which shall be adjusted to reflect the then-current Initial
Operating Expense Basic Cost figure for the Building. Payment of all Additional
Rent and any other Rent required to be paid by Tenant as provided in this Lease
for the initial Term shall continue to be made during the renewal Term. Any
termination of this Lease, any assignment of this Lease and/or any subletting of
the Premises terminates all rights of renewal.
The "fair market rental rate," as such term is used in this Rider, shall mean
and refer to the prevailing rental rate (exclusive of Operating Expenses, Taxes
and other such costs) per square foot of Rentable Area then being offered by
landlords and agreed upon by tenants of similar size for comparable space in
buildings in the Denver Technological Center comparable to the Building. In
determining the fair market rental rate, Landlord shall be entitled to take into
consideration the rental rates per square foot of Rentable Area then being
obtained in the Building, with appropriate adjustment for floor location within
the Building, whether such other lease is a new lease or a renewal lease, the
date of signing and the term of any such other leases, rent concessions, tenant
finish allowances and credits provided to such other tenants, the amount of
space leased, the creditworthiness of the tenants, moving concessions,
commissions
50
and any other matter that a reasonably prudent tenant and landlord would
consider in the determination of rent and similar items. In addition, Landlord
will take into account the existing condition of the subject space and its
suitability for Tenant's use, and any improvements to be made thereto by
Landlord.
Landlord and Tenant shall use reasonable, good faith efforts to agree on the
Annual Rent applicable during the renewal Term within thirty (30) days of
Tenant's exercise of the Renewal Option, as evidenced by written agreement of
Landlord and Tenant. If the parties fail to agree within such thirty-day period,
then the fair market rental rate shall be determined by appraisal in the manner
provided herein; provided that, if Landlord and Tenant, at any time, agree in
writing on the Annual Rent, the Annual Rent shall be the amount determined by
such agreement. Landlord and Tenant shall, by written agreement, appoint an
appraiser to appraise and determine the fair market rental rate. If Landlord and
Tenant appoint a single appraiser, the fair market rental rate shall be as
determined by such appraiser. If Landlord and Tenant fail to agree upon an
appraiser within fifty (50) days after Tenant's exercise of the Renewal Option,
then each shall appoint an appraiser and give the other party notice of such
appointment within seventy (70) days after Tenant's exercise of the Renewal
Option. If either party fails to appoint an appraiser and give the other party
notice of such appointment within such period, the fair market rental rate shall
be determined by the written appraisal of the appraiser who was appointed in
accordance herewith. If Landlord and Tenant both appoint appraisers, each shall
appraise the fair market rental rate and shall submit a written report of such
appraisal to both Landlord and Tenant within thirty (30) days after his
appointment, and both appraisers shall thereafter use reasonable, good faith
efforts to agree on the fair market rental rate.
If the two appraisers fail to agree on the fair market rental rate within forty
(40) days after the date the last of them was appointed, and if the difference
between the fair market rental rate as determined by the two appraisers is less
than or equal to five percent of the higher of those two appraisals, then the
fair market rental rate shall be deemed to be the average of those two
appraisals. If the two appraisers cannot agree upon the fair market rental rate
within forty (40) days after the date the last of them was appointed, and if the
difference between the fair market rental rate as determined by such appraisers
is greater than 5% of the higher of those two appraisals, then the two
appraisers shall appoint a third appraiser and shall deliver copies of their
respective appraisal reports to such third appraiser. The fair market rental
rate, as determined by such third appraiser, shall be an amount not higher than
that determined by the higher appraisal and not lower than that determined by
the lower appraisal and shall be determined by such third appraiser by review of
the first two appraisals and such further inquiries and investigations as the
third appraiser determines to make. The third appraiser shall make such
determination and submit his determination of fair market rental rate to both
Landlord and Tenant within thirty (30) days after his appointment and receipt of
copies of the appraisal reports of the two other appraisers.
Each appraiser appointed hereunder shall be an M.A.I. appraiser with no
affiliation with either Landlord or Tenant, except that such appraiser may have
performed work for either Landlord or Tenant in the past, so long as no such
work is currently being performed. Each appraiser shall use his best efforts in
good faith to determine the fair market rental rate without regard to whether
such determination would be a detriment or
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benefit to the party or parties engaging such appraiser hereunder or to any
other person. Each appraiser engaged hereunder shall be given a copy of this
Lease, and no other instructions except as to dates for completion of his
appraisal report. Although each appraiser engaged only by Landlord or Tenant
shall be free to discuss his appraisal with the party or parties which engaged
him or with the other party, the only instructions to be given to any appraiser
appointed hereunder shall be a copy of this Lease, and no other instructions
except as to dates for completion of his appraisal report. If a third appraiser
is appointed, Landlord and Tenant (including attorneys and others acting on
behalf of Landlord or Tenant) shall not have any contact with the third
appraiser without the consent of the other party (which may be withheld or
conditioned as the other party determines in its discretion), except in writing,
a copy of which shall be given to the other party hereto not later than the time
it is given to such third appraiser. Each appraiser shall certify that his
report has been made in accordance with these instructions and there has been no
improper contact. If Landlord and Tenant appoint a single appraiser, Landlord
shall bear one half of the cost of such appraiser; otherwise, Landlord shall
bear the cost of any appraiser appointed by Landlord and one half of the cost of
any third appraiser. If Landlord and Tenant appoint a single appraiser, Tenant
shall bear one half of the cost of such appraiser; otherwise, Tenant shall bear
the cost of the appraiser appointed by Tenant and one half of the cost of any
third appraiser.
2. Operating Expense Cap. Notwithstanding anything to the contrary contained
herein, the Controllable Operating Expenses (as defined below) which are
included within Tenant's Share of Computed Operating Expenses shall not increase
by more than five percent (5%) annually, determined on a cumulative basis over
the Term. For examples
YEAR 1 YEAR 2 YEAR 3 YEAR 4 YEAR 5
------ ------ ------ ------ ------
Allowable Annual Operating 5.00% 5.00% 5.00% 5.00% 5.00%
Expense Cap Calculated on
Cumulative Basis over Term (%)
Assume $1.00 for year 0 $1.05 $1.10 $1.16 $1.22 $1.28
Example of Controllable Operating 7.00% 5.00% 3.00% 7.00% 5.00%
Expense Increases Per Year (%)
Assume $1.00 for year 0 $1.07 $1.12 $1.16 $1.24 $1.30
Example of Controllable Operating 5.00% 5.00% 5.00% 5.00% 5.00%
Expenses Increases Paid by Tenant(%)
Assume $1.00 for year 0 $1.05 $1.10 $1.16 $1.22 $1.28
For purposes of the calculation to be made under the preceding sentence, the
Controllable Operating Expenses which are variable depending on occupancy shall
be grossed-up as set forth in Section 1.C.(15) of the Lease. For purposes
hereof, "Controllable Operating Expenses" shall mean all of those Operating
Expenses included within Computed Operating Expenses except the costs (to the
extent included in Operating Expenses) of all utilities for the Complex, all
insurance for the Complex, and
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all Taxes. The limitation set forth in this Section with respect to Controllable
Operating Expenses shall not apply, however, to any costs of utilities for the
Complex, insurance for the Complex, or Taxes, which are otherwise included
within the definition of Operating Expenses.
3. Landlord's Default. Tenant agrees to provide written notice to Landlord in
the event Landlord breaches any of its obligations hereunder. In the event
Landlord shall fail to cure any such breach within thirty (30) days after
receipt of written notice from Tenant (or if such breach is not reasonably
capable of being cured within thirty (30) days, such additional period as may
reasonably be necessary to cure the same with due diligence), then Landlord
shall be in default hereunder and Tenant shall be entitled to bring an action
for damages or specific performance or other injunctive relief against Landlord.
Additionally, (i) in the event any default by Landlord is not cured within the
foregoing cure period, or (ii) in the event any emergency repairs to the
Premises are needed and Tenant is unable, despite diligent efforts, to contact
Landlord by telephone, then, in either of such events, Tenant shall be entitled
to take such action as may be commercially reasonably under the circumstance to
correct such uncured default and/or make such repairs as are needed to correct
the emergency situation, and Landlord shall reimburse Tenant for all costs
reasonably incurred in the exercise of such rights, together with interest
thereon at the rate set forth in Section 29.B above from the date paid until the
date reimbursed, within thirty (30) days after written demand. If Landlord fails
to reimburse Tenant for all amounts expended by Tenant under this paragraph
within thirty (30) days of demand, then Tenant may commence an action against
Landlord to recover same, but in no event shall Tenant be entitled to offset
such amounts against the Rent due from Tenant hereunder.
4. Roof Installation. Provided the Lease shall be in full force and effect and
no Event of Default by Tenant has occurred and is continuing hereunder, Tenant
may, at its sole cost and expense, install and operate three (3) twenty-five
inch (25") diameter satellite dishes, together with associated cables and
wiring, and together with screening thereof (collectively referred to herein as
the "communications equipment") on the roof of the Building, subject to
Landlord's reasonable approval of the amount of such communications equipment,
the location and routing thereof, and the type and placement of the screening
surrounding such equipment. The installation of the communications equipment
shall be subject to the following:
A. Tenant shall, at all times, and at its sole cost and expense,
comply with all applicable governmental and quasi-governmental rules and
regulations, and obtain and maintain any and all required governmental and
quasi-governmental permits, licenses, authorizations and approvals, including
without limitation any approvals required from the Denver Technological Center
Architectural Control Committee.
B. Tenant shall maintain adequate liability insurance covering the
installation and operation of the communications equipment in which Landlord is
named as an additional insured, proof of which shall be provided to Landlord
prior to installation.
C. Tenant shall, at its sole cost and expense, maintain the
communications equipment in good working order and do so in a manner such that
the
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operation of the communications equipment does not cause any interference with
any telecommunications, mechanical or other system located in or servicing the
Building or Complex, whether such system belongs to and is utilized by Landlord
or any other tenant in the Building.
D. Tenant covenants and agrees that the installation, operation
and removal of the communications equipment will be at its sole risk. Tenant
agrees to indemnify and defend Landlord against all claims, actions, damages,
liabilities and expenses including reasonable attorney's fees and disbursements
in connection with the loss of life, personal injury, damage to property or
business or any other loss or injury or as a result of any litigation arising
out of the installation, operation or removal of the communications equipment.
E. At the expiration or sooner termination of the Lease, or upon
termination of the operation of the communications equipment, or revocation of a
required license issued, Tenant shall, at its sole cost and expense, remove the
communications equipment from the Building and repair the installation area to
the same or better condition as existed prior to such installation. If Tenant
does not remove the communications equipment and repair such area when so
required, Tenant hereby authorizes Landlord to remove and dispose of the
communications equipment and repair the installation area and to charge Tenant
for all costs and expenses incurred in so doing.
5. Hazardous Materials.
A. Tenant shall comply with all statutes, ordinances, rules,
orders, regulations and requirements of the federal, state, county and city
governments and all departments thereof applicable to the presence, storage,
use, maintenance and removal of toxic, hazardous or contaminated substances,
materials or wastes (collectively, "Hazardous Materials") in, on or about the
Premises and the Complex, which presence, storage, use, maintenance or removal
is caused or permitted by Tenant or any of Tenant's agents, employees,
contractors, invitees or any other person or entity over which Tenant has
control. In no event shall the aforesaid be construed to mean that Landlord has
given or will give its consent to Tenant's storing, using, Maintaining or
removing Hazardous Materials in, on or about the Premises, other than those
customarily used in offices, and then only in compliance with all applicable
laws, ordinances, rules and regulations. Tenant shall indemnify and hold
Landlord and its members, and its and their agents, employees, officers and
directors, free and harmless from and against any and all claims, judgments,
damages, penalties, fines, costs (including reasonable attorneys' fees,
litigation and court costs), liabilities and losses, including, without
limitation, diminution in the value of the Premises, the Building or the Complex
or any portion thereof, damages for the loss or restriction on use of rentable
or usable space or of any amenity of the Premises the Building or the Complex or
any part thereof, and sums paid in settlement of claims, reasonable attorneys'
fees, consultant fees, expert fees, any and all costs incurred in connection
with any investigation of site conditions or any clean up, remedial, removal or
restoration work necessary in the reasonable judgment of Landlord or required by
any federal, state or local governmental agency or political subdivision because
of the presence of such Hazardous Materials in, on or about the Premises, the
Building or the Complex or any part thereof, arising out of
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or relating to (a) the use, presence, handling or disposition of Hazardous
Materials by Tenant, its employees, agents, contractors, invitees or any other
person or entity over which Tenant has control in, on or about the Premises, the
Building or the Complex or any part thereof, and (b) any Hazardous Materials
contamination of the Premises, the Building or the Complex or any part thereof
caused by Tenant, its employees, agents, contractors, invitees or any other
person or entity over which Tenant has control. Tenant's obligations hereunder
shall survive the termination of this Lease.
B. Landlord shall indemnify and hold Tenant and its agents,
employees, officers and directors, free and harmless from and against any and
all claims, judgments, damages, penalties, fines, costs (including reasonable
attorneys' fees, litigation and court costs), liabilities and losses, including,
without limitation, damages for the loss or restriction on use of rentable or
usable space or of any amenity of the Premises or any part thereof, and sums
paid in settlement of claims, reasonable attorneys' fees, consultant fees,
expert fees, any and all costs incurred in connection with any investigation of
site conditions or any clean up, remedial, removal or restoration work necessary
in the reasonable judgment of Tenant or required by any federal, state or local
governmental agency or political subdivision because of the presence of such
Hazardous Materials in, on or about the Premises, the Complex or any part
thereof, arising out of or relating to (a) the use, presence, handling or
disposition of Hazardous Materials by Landlord, its employees, agents,
contractors, invitees or any other person or entity over which Landlord has
control in, on or about the Premises, the Complex or any part thereof, and (b)
any Hazardous Materials contamination of the Premises, the Complex or any part
thereof caused by Landlord, its employees, agents, contractors, invitees or any
other person or entity over which Landlord has control. Landlord's obligations
hereunder shall survive the termination of this Lease.
6. Letter of Credit.
A. In lieu of depositing cash for the Security Deposit described
above, Tenant simultaneously with the execution of this Lease shall deliver to
Landlord an irrevocable letter of credit payable in Denver, Colorado, running in
favor of Landlord issued by a bank approved by the Landlord, in the amount of
Six Hundred Sixty Two Thousand Two Hundred Eighty Eight Dollars and No Cents
($662,288.00). The letter of credit shall be irrevocable for the term thereof
and shall provide that it is automatically renewable for a period ending not
earlier than sixty (60) days after the expiration of the Term without any action
whatsoever on the part of Landlord; provided that the issuing bank shall have
the right not to renew said letter of credit on written notice to Landlord not
less than sixty (60) days prior to the expiration of the then current term
thereof (it being understood, however, that the privilege of the issuing bank
not to renew said letter of credit shall not, in any event, diminish the
obligation of Tenant to maintain such irrevocable letter of credit with Landlord
through the date which is sixty (60) days after the expiration of the Term of
this Lease).
B. The form and terms of the letter of credit (and the bank
issuing the same) shall be acceptable to Landlord and shall provide, among other
things, in effect that:
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(1) Landlord, or its then managing agent, shall have the
right to draw down an amount up to the face amount of the letter
of credit upon the presentation to the issuing bank of Landlord's
(or Landlord's then managing agent's) statement that such amount
is due to Landlord as a result of a monetary default by Tenant
under the terms and conditions of this Lease, it being understood
that if Landlord or its managing agent be a corporation,
partnership or other entity, then such statement shall be signed
by an officer (if a corporation), a general partner (if a
partnership), or any authorized party (if another entity);
(2) The letter of credit will be honored by the issuing
bank without inquiry as to the accuracy thereof and regardless of
whether the Tenant disputes the content of such statement;
(3) In the event of a transfer of Landlord's interest in
the Building, Landlord shall have the right to transfer the letter
of credit to the transferee and thereupon the Landlord shall,
without any further agreement between the parties, be released by
Tenant from all liability therefor, and it is agreed that the
provisions hereof shall apply to every transfer or assignment of
said letter of credit to a new Landlord.
C. If, as a result of any application of all or any part of the
letter of credit, the amount secured by the letter of credit shall be less than
$662,288.00, Tenant shall forthwith provide Landlord with additional letter(s)
of credit in an amount equal to the deficiency.
D. Tenant further covenants that it will not assign or encumber
said letter of credit or any part thereof and that neither Landlord nor its
successors or assigns will be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance.
E. Without limiting the generality of the foregoing, if the letter
of credit expires earlier than sixty (60) days after the expiration of the Term
of this lease, or the issuing bank notifies Landlord that it shall not renew the
letter of credit, Landlord will accept a renewal thereof or substitute letter of
credit (such renewal or substitute letter of credit to be in effect not later
than thirty (30) days prior to the expiration thereof), irrevocable and
automatically renewable as above provided to sixty (60) days after the end of
the Term of this Lease upon the same terms as the expiring letter of credit or
such other terms as may be acceptable to Landlord. However, (i) if the letter of
credit is not timely renewed or a substitute letter of credit is not timely
received, (ii) or if Tenant fails to maintain the letter of credit in the amount
and terms set forth in this Section, Tenant, at least thirty (30) days prior to
the expiration of the letter of credit, or immediately upon its failure to
comply with each and every term of this Article, must deposit with Landlord cash
security in the amounts required by, and to be held subject to and in accordance
with, all of the terms and conditions set forth in Section 27 of the Lease,
failing which the Landlord may present such letter of credit to the bank, in
accordance with the terms of this Article, and the entire sum secured thereby
shall be paid to Landlord, to be held by Landlord as provided in this Section 6
and in Section 27 of this Lease.
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F. Notwithstanding anything to the contrary contained herein, in
the event that Tenant furnishes Landlord with evidence reasonably acceptable to
Landlord that Tenant's net operating income for the previous twelve-month period
was at least twenty (20) times more than the total amount of Annual Rent which
was due from Tenant hereunder during that same period, the letter of credit
shall be released by Landlord and returned to Tenant. In addition, Tenant shall
have the right to replace the letter of credit at any time during the Term of
this Lease with a cash Security Deposit, in the amount of $662,288.00,
discounted to its present value by the then-current United States Treasury xxxx
rate. The present value of the cash Security Deposit shall be determined by
discounting each of the monthly payments which will be applied by Landlord from
the cash Security Deposit, from the date upon which such monthly payment is due
hereunder back to the date on which the cash Security Deposit is deposited by
Tenant. If Tenant replaces the letter of credit with such a cash Security
Deposit, then Landlord shall apply one-twelfth of the amount of such Security
Deposit each month during Lease Year 5 to the payment of the monthly installment
of Annual Rent due from Tenant hereunder. The application by Landlord of such
amount to the payments of Annual Rent shall not release Tenant from its
liability for the payment in full of all amounts of Annual Rent, Additional Rent
or other amounts due from Tenant hereunder, and Tenant shall, on the same day as
each monthly installment of Annual Rent is due from Tenant hereunder, pay to
Landlord an amount sufficient to fully pay the difference between the amount to
be applied by Landlord from the Security Deposit and the full amount of Annual
Rent and Additional Rent due from Tenant hereunder.
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EXHIBIT B
0000 XXXXX XXXXXXXX
LEGAL DESCRIPTION OF THE LAND
A PARCEL OF LAND BEING LOCATED IN THE DENVER TECHNOLOGICAL CENTER IN THE
XXXXXXXXX 0/0 XX XXXXXXX 0, XXXXXXXX 0 XXXXX, XXXXX 67 WEST OF THE 6th PRINCIPAL
MERIDIAN, CITY AND COUNTY OF DENVER, STATE OF COLORADO, BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
COMMENCING AT THE WEST QUARTER CORNER OF SAID SECTION 9; THENCE SOUTH 60 DEGREES
11 MINUTES 36 SECONDS EAST, 1,352.24 FEET TO THE SOUTHERLY LINE OF THE HYATT
REGENCY HOTEL PARCEL AND THE TRUE POINT OF BEGINNING; THENCE ALONG SAID
SOUTHERLY LINE SOUTH 89 DEGREES 45 MINUTES 35 SECONDS EAST, 362.54 FEET TO A
POINT OF CURVATURE; THENCE SOUTH 358.99 FEET ALONG SAID SOUTHERLY LINE BEING A
CURVE TO THE LEFT HAVING A RADIUS OF 244.00 FEET, A CENTRAL ANGLE OF 84 DEGREES
17 MINUTES 55 SECONDS, AND A CHORD WHICH BEARS NORTH 48 DEGREES 05 MINUTES 29
SECONDS EAST, 327.48 FEET; THENCE LEAVING SAID SOUTHERLY LINE SOUTH 84 DEGREES
03 MINUTES 30 SECONDS EAST, 534.39 FEET TO THE WESTERLY RIGHT-OF-WAY LINE OF
SOUTH ULSTER STREET PARKWAY; THENCE ALONG SAID RIGHT-OF-WAY LINE 42.81 FEET
ALONG A NON-TANGENT CURVE TO THE RIGHT HAVING A RADIUS OF 2,242.90 FEET, A
CENTRAL ANGLE OF 01 DEGREES 05 MINUTES 37 SECONDS, AND A CHORD WHICH BEARS
SOUTH 25 DEGREES 17 MINUTES 21 SECONDS EAST, 42.81 FEET TO A POINT OF TANGENCY;
THENCE CONTINUING ALONG SAID WESTERLY RIGHT-OF-WAY LINE SOUTH 25 DEGREES 45
MINUTES 05 SECONDS EAST, 49.71 FEET TO THE NORTHERLY RIGHT-OF-WAY LINE OF UNION
AVENUE PARKWAY (BOOK 29, PAGE 56) AND A POINT OF CURVATURE; THENCE ALONG SAID
UNION AVENUE PARKWAY THE FOLLOWING FOUR (4) CONSECUTIVE COURSES:
1) THENCE 159.44 FEET ALONG A CURVE TO THE RIGHT HAVING A RADIUS OF 101.50 FEET,
A CENTRAL ANGLE OF 90 DEGREES 00 MINUTES 00 SECONDS, AND A CHORD WHICH BEARS
SOUTH 19 DEGREES 49 MINUTES 30 SECONDS WEST, 143.54 FEET TO A POINT OF TANGENCY;
2) THENCE SOUTH 64 DEGREES 49 MINUTES 30 SECONDS WEST, 766.84 FEET TO A POINT OF
CURVATURE;
3) THENCE 303.12 FEET ALONG A CURVE TO THE RIGHT HAVING A RADIUS OF 894.93 FEET,
A CENTRAL ANGLE OF 19 DEGREES 24 MINUTES 24 SECONDS, AND A CHORD WHICH BEARS
SOUTH 74 DEGREES 31 MINUTES 42 SECONDS WEST, 301.68 FEET TO A POINT OF COMPOUND
CURVATURE;
4) THENCE 97.34 FEET ALONG A CURVE TO THE RIGHT HAVING A RADIUS OF 90.00 FEET, A
CENTRAL ANGLE OF 61 DEGREES 58 MINUTES 06 SECONDS, AND A CHORD WHICH BEARS NORTH
64 DEGREES 47 MINUTES 03 SECONDS WEST, 92.66 FEET;
THENCE LEAVING SAID NORTHERLY RIGHT-OF-WAY LINE NORTH 02 DEGREES 57 MINUTES 19
SECONDS WEST, 218.02 FEET TO A POINT OF CURVATURE;
58
THENCE 213.35 FEET ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 570.00 FEET, A
CENTRAL ANGLE OF 21 DEGREES 26 MINUTES 46 SECONDS, AND A CHORD WHICH BEARS NORTH
13 DEGREES 40 MINUTES 42 SECONDS WEST, 212.11 FEET TO SAID SOUTHERLY LINE OF
HYATT REGENCY HOTEL AND THE TRUE POINT OF BEGINNING.
BASIS OF BEARINGS:
ASSUMED ALONG THE SOUTHEASTERLY LINE OF DENVER TECH CENTER EAST, WHICH IS
SITUATED XXXXX XXX XXXX XX XXXXX XXXXXX XXXXXX PARKWAY, NORTHWEST OF UNION
AVENUE PARKWAY, AND EAST OF INTERSTATE HIGHWAY 1-25, AND BEING THE NORTHERLY
RIGHT-OF-WAY LINE OF UNION AVENUE PARKWAY, BOOK 29, PAGE 56, AS MONUMENTED BY A
PIN AND CAP PLS 9655 BEING THE EASTERLY CORNER OF PARCEL 1, RECEPTION NO.
00-0000000 AND A PIN AND CAP PLS 23899, BEARING NORTH 64 DEGREES 49 MINUTES 20
SECONDS WEST, 766.84 FEET.
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EXHIBIT C
4600 SOUTH SYRACUSE
PLAN DELINEATING THE PREMISES
60
[FLOOR 5 FLOOR PLATE]
[XXXXXXXXX SYSTEMS INC. LOGO]
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EXHIBIT D
0000 XXXXX XXXXXXXX
TENANT CONSTRUCTION AGREEMENT
(LANDLORD PERFORMS WORK)
1. In this Tenant Construction Agreement, some defined terms are used. They are:
Tenant's Representative: Mr. Xxxxx Xxxxx, Telephone: (303)
000-0000, Fax: (000) 000-0000
Landlord's Representative: Mr. Xxxxx Xxxxx, Telephone: (303)
000-0000, Fax: (000) 000-0000
Tenant Extra Work:
A. Work in excess of the Tenant Finish Allowance;
B. All modifications, changes and Change Orders (as defined in
paragraph 8 below) requested by Tenant to the Tenant Space Plan or Tenant
Working Drawings (as defined in paragraph 6 below) in excess of the Tenant
Finish Allowance;
C. All interior decorating services and decorator items; and
D. Relocation or modification of any sprinkler lines, sprinkler
heads, HVAC component, fire alarm or life safety system, other Building
controls, or any other item previously installed by Landlord in the Building.
Tenant Finish Allowance: $25.00 per square foot of Rentable Area
Any capitalized term which is used in this Tenant Construction Agreement but not
defined in this Tenant Construction Agreement has the meaning set forth for such
term in the Lease.
2. Representatives. Landlord appoints Landlord's Representative to act for
Landlord in all matters covered by this Tenant Construction Agreement. Tenant
appoints Tenant's Representative to act for Tenant in all matters covered by
this Tenant Construction Agreement. All inquiries, requests, instructions,
authorizations and other communications with respect to the matters covered by
this Tenant Construction Agreement will be made to Landlord's Representative or
Tenant's Representative, as the case may be. Tenant will not make any inquiries
of or requests to, and will not give any instructions or authorizations to, any
other employee or agent of Landlord, including Landlord's architect, engineers
and contractors or any of their agents or employees, with regard to matters
covered by this Tenant Construction Agreement. Either party may change its
Representative under this Tenant Construction Agreement at any time by three (3)
days' prior written notice to the other party.
3. Building Standard. Tenant must use the Building Standard items prescribed by
Landlord for the Building in order to assure the consistent quality and
appearance of the Building.
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4. Landlord Work and Tenant Extra Work
A. Landlord will complete the Base Building Shell at Landlord's
sole cost and expense. For all of the improvements to be made to the Premises
beyond the Base Building Shell, Landlord will pay as much as the Tenant Finish
Allowance for:
(1) The costs of preparing the Tenant Space Plan and Tenant
Working Drawings; and
(2) Initial construction of Tenant's improvements in the
Premises (including without limitation all permits, taxes, and
architectural, engineering and construction contractor's fees
associated with the construction) ("Tenant Work"), less an amount
payable to Landlord for its coordination and review of the Tenant
Work equal to two and one-half percent (2.5%) of the cost of the
Tenant Work. If any amount of the Tenant Finish Allowance is not
used in connection with the Tenant Work, the unused portion will
be credited by Landlord against the first payments of Annual Rent
due under the Lease.
B. Tenant will pay for the costs of all Tenant Extra Work
(including without limitation permits, taxes, and all space planning,
architectural, engineering and construction contractor's fees associated with
the Tenant Extra Work, and the cost of Landlord's overhead for coordination and
administration at the rate of two and one-half percent (2.5%) of the total cost
to Landlord of all Tenant Extra Work). All requested Tenant Extra Work will be
subject to Landlord's prior written approval in accordance with paragraph 5.
5. Landlord's Approval. Landlord, in its sole discretion, may withhold its
approval of any Tenant Space Plan, Tenant Working Drawings, Tenant Extra Work or
Change Orders which require work which:
A. Exceeds or affects the structural integrity of the Building, or
any part of the heating, ventilating, air conditioning, plumbing, mechanical,
electrical, communication or other systems of the Building;
B. Would not be approved by a prudent owner of property similar to
the Building;
C. Violates any agreement which affects the Building or binds
Landlord;
D. Landlord reasonably believes will increase the cost of
operation or maintenance of any of the systems of the Building;
E. Landlord reasonably believes will reduce the market value of
the Premises or the Building at the end of the Term;
F. Does not conform to applicable building code or is not approved
by any governmental authority with jurisdiction over the Premises; or
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G. Unless Landlord has given its consent to a different finish
item in connection with its approval of the Tenant Space Plan or the Tenant
Working Drawings, does not conform to the Building Standard for lights,
ceilings, window coverings, or any other finish item which is visible from the
exterior of the Building, or is not compatible with the finish level of a Class
A office building.
6. Schedule of Tenant Improvement Activities.
A. Landlord has furnished to Tenant a list identifying the
architect and other consultants which Landlord proposes to hire in connection
with the Tenant Work, and Tenant has agreed upon the architects and consultants
to be hired.
B. Tenant has submitted to Landlord the information (the "Tenant
Information") necessary for Landlord's architect or space planner to prepare a
space layout and improvement plan for the Premises (the "Tenant Space Plan"),
and the Tenant Space Plan has been prepared by Landlord and approved by Tenant.
C. Landlord has prepared and furnished to Tenant a preliminary
estimate of the cost of Tenant's improvements, including without limitation
permits, taxes, and all space planning, architectural, engineering and
construction contractor's fees associated therewith (the "Tenant's Estimated
Construction Cost"), as set forth in the Tenant Space Plan. The Tenant's
Estimated Construction Cost is more than the Tenant Finish Allowance, and Tenant
has agreed in writing to pay the amount by which the Tenant's Estimated
Construction Cost exceeds the Tenant Finish Allowance as though that amount were
Tenant Extra Work subject to paragraph 7.
D. After approval of the Tenant's Estimated Construction Cost,
Landlord will cause to be prepared and delivered to Tenant working drawings for
the Premises ("Tenant Working Drawings"). Within five (5) days after its receipt
of the Tenant Working Drawings, Tenant will give Landlord written notice whether
or not Tenant approves the Tenant Working Drawings. If Tenant fails to give
Landlord that notice by that fifth day, then, in addition to any other rights
which it may have on account of that failure, Landlord may consider each day
following that fifth day until its receipt of Tenant's notice to be a day of
delay by Tenant. If Tenant's notice objects to the Tenant Working Drawings, the
notice will set forth how the Tenant Working Drawings are inconsistent with the
Tenant Space Plan and how the Tenant Working Drawings must be changed in order
to overcome Tenant's objections. Landlord will submit revised Tenant Working
Drawings to Tenant.
The revised Tenant Working Drawings, and any revisions to them, will be
treated as though they were the first proposed Tenant Working Drawings prepared
pursuant to this paragraph. If the proposed Tenant Working Drawings, or any
revision to them, is not inconsistent with the Tenant Space Plan, then each day
following Landlord's receipt of Tenant's objections until Landlord's receipt of
Tenant's approval of the Tenant Working Drawings will be a day of Tenant's
delay.
E. After approval of the Tenant's Working Drawings, Landlord will
cause to be prepared and delivered to Tenant an estimated construction schedule
(the "Construction Schedule"), and a cost proposal (the "Tenant Cost Proposal")
for
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construction of Tenant's improvements in accordance with Tenant Working
Drawings. The Construction Schedule will set forth time frames for approval. If
the Tenant Cost Proposal is less than the sum of the Tenant Finish Allowance and
any amount in excess of the Tenant Finish Allowance which Tenant has agreed to
pay pursuant to paragraph 6.C, Landlord will take steps necessary to complete
construction of the improvements to the Premises. If the Tenant Cost Proposal is
more than the sum of the Tenant Finish Allowance plus any amount which Tenant
has agreed to pay pursuant to clause (1) of paragraph 6.C immediately above
(such greater amount, the "Maximum Approved Cost"), Landlord will so notify
Tenant in writing and Tenant will either (1) agree in writing to pay the amount
by which the Tenant Cost Proposal exceeds the Maximum Approved Cost as though
that additional amount were Tenant Extra Work subject to paragraph 7 or (2)
revise the Tenant Working Drawings in order to assure that the Tenant Cost
Proposal is no more than the Maximum Approved Cost. Each day following Tenant's
receipt of the Tenant's Cost Proposal until the fulfillment of Tenant's
obligations in either Clause (1) or clause (2) immediately above will be a day
of Tenant's delay. Upon Tenant's fulfillment of its obligations under either
clause (1) or clause (2) immediately above, Landlord will take steps necessary
to complete construction of the improvements to the Premises.
F. All work will be performed by one or more contractors selected
and engaged by Landlord. Tenant will have the right to designate a subcontractor
for each component of work required to be bid by a subcontractor. Landlord will
not unreasonably withhold its consent to solicitation of bids from the
subcontractors designated by Tenant, provided such subcontractors meet
Landlord's requirements for subcontractors, and provided further that any
component of work affecting the life safety, mechanical, electrical or plumbing
systems of the Building must be performed by the approved Building subcontractor
for that work. Following approval of the Tenant Working Drawings and the Tenant
Cost Proposal, Landlord will cause application to be made to the appropriate
governmental authorities for necessary approvals and building permits. Upon
receipt of the necessary approvals and permits and subject to receipt of the
payment required under paragraph 7, Landlord will begin construction.
7. Payment for Tenant Extra Work. Tenant will pay to Landlord, in advance, the
total amount payable by Tenant for Tenant Extra Work.
8. Change Orders. Tenant may authorize changes in the work during construction,
only by written instructions to Landlord's Representative on a form approved by
Landlord. All such changes will be subject to Landlord's prior written approval
in accordance with paragraph 5. Prior to commencing any change, Landlord will
prepare and deliver to Tenant, for Tenant's approval, a change order (the
"Change Order") setting forth the total cost of such change and its impact on
the Construction Schedule, which will include associated architectural,
engineering and construction contractor's fees, and the cost of Landlord's
overhead at the rate of two and one-half percent (2.5%) of the amount of the
Change Order. If Tenant fails to approve and pay for such Change Order within
five (5) days after delivery by Landlord, Tenant will be deemed to have
withdrawn the proposed change and Landlord will not proceed to perform the
change. Upon Landlord's receipt of Tenant's approval and payment, Landlord will
proceed to perform the change.
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9. Completion and Commencement Date. Subject to the provisions of Section 5.C of
the Lease and the other provisions of this Tenant Construction Agreement,
Landlord shall substantially complete the Tenant Work in the Premises and tender
the Premises to Tenant on or before May 1, 2000. Tenant shall be entitled to
enter the Premises before the Commencement Date only for the purpose of
installing its wall partitions, furniture, and telephone system, and then only
after written notice from Landlord that the Premises are ready for the
installation of such items (which may be before the substantial completion of
the Premises, as defined below, if Landlord determines that the installation of
such items may be accomplished at the same time as the remaining items with
respect to the Tenant Work). Such early occupancy by Tenant shall be only for
the purposes set forth in the preceding sentence, and shall be pursuant to all
of the terms and conditions of this Lease, except that Tenant shall not owe any
Annual Rent or Additional Rent with respect to such period. Tenant's obligation
for payment of Rent pursuant to the Lease will commence on the Commencement
Date; however, the Commencement Date and the date for the payment of Rent shall
be delayed on a day-today basis for each day the substantial completion of the
Tenant Work is delayed by Landlord or its contractors or agents. The date of
substantial completion shall mean the day on which the Tenant Work has been
completed in accordance with the Tenant Working Drawings so that Tenant may
receive the beneficial use of the Premises (i.e., when Tenant may use the
Premises for their intended purpose), subject to the punch list of items
referred to below. The payment of Rent will not be delayed by a delay of
substantial completion due to Tenant. The following are some examples of delays
which will not affect the Commencement Date and the date Rent is to commence
under the Lease:
A. Change Orders requested by Tenant;
B. Delays in obtaining non-Building Standard construction
materials requested by Tenant if Landlord notifies Tenant that such materials
are not Building Standard when ordered;
C. Tenant's failure to approve timely any item requiring Tenant's
approval; and
D. Delays by Tenant according to paragraph 6.
In the event that substantial completion of the Tenant Work is delayed
by Landlord, its contractors or agents, the Commencement Date will be the date
of substantial completion of the Tenant Work, subject only to the completion of
Landlord's punch-list items (that is, those items which do not materially
interfere with Tenant's use and enjoyment of the Premises). Landlord and Tenant
will confirm the Commencement Date in accordance with Section 1(A)(1) of the
Lease.
10. Condition of the Premises.
A. Prior to the Commencement Date, Landlord and Tenant will
jointly conduct a walk-through inspection of the Premises with Landlord. Based
on that walk-through, Landlord will prepare for Tenant's approval a punch-list
of items needing additional work by Landlord. Other than the items specified in
the approved punch-list
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and "latent defects" (as defined below), by taking possession of the Premises,
Tenant will be deemed to have accepted the Premises in their condition on the
date of delivery of possession and to have acknowledged that Landlord has
installed the improvements as required by this Tenant Construction Agreement and
that there are no items needing additional work or repair. The punch-list will
not include any damage to the Premises caused by Tenant's move-in or early
access, if permitted. Damage caused by Tenant will be repaired or corrected by
Landlord at Tenant's expense. Tenant acknowledges that neither Landlord nor its
agents or employees have made any representations or warranties as to the
suitability or fitness of the Premises for the conduct of Tenant's business or
for any other purpose, nor has Landlord or its agents or employees agreed to
undertake any alterations or construct any tenant improvements to the Premises
except as expressly provided in this Lease and this Tenant Construction
Agreement. If Tenant fails to submit a punch-list to Landlord prior to the
Commencement Date, it will be deemed that there are no items needing additional
work or repair. Landlord's contractor will complete all reasonable punch-list
items within 30 days after the walk-through inspection or as soon as practicable
after such walk-through. In addition, Landlord agrees that it shall cooperate
with Tenant and use reasonable efforts to cause Landlord's contractor to
complete any items identified by Tenant for which Landlord's contractor remains
liable under the construction contract covering the Tenant Work, whether or not
those items are contained on the original punch list, but only if and to the
extent Landlord's contractor is still obligated to complete the same under such
contract.
B. A "latent defect" is a defect in the condition of the Premises
caused by Landlord's failure to construct the improvements in a good and
workmanlike manner and in accordance with the Working Drawings, which defect
would not ordinarily be observed during a walk-through inspection. If Tenant
notifies Landlord of a latent defect within one year following the Commencement
Date, then Landlord, at its expense, will repair such latent defect as soon as
practicable. Except as set forth in this paragraph 10, Landlord will have no
obligation or liability to Tenant for latent defects. Landlord shall obtain a
one (1) year warranty covering the Tenant Work from the contractor therefor, and
Landlord agrees that it shall cooperate with Tenant and use reasonable efforts
to enforce the terms of such warranty.
11. Adjustments Upon Completion. As soon as practicable, upon completion of the
improvements in accordance with this Tenant Construction Agreement, Landlord
will notify Tenant of the Rentable Area of the Premises, and if such Rentable
Area is different from that stated in Section 1(A)(5) of the Lease, the actual
Annual Rent shall be modified accordingly. Tenant, within ten (10) days of
Landlord's written request, will execute a certificate confirming such
information.
12. Defaults. Failure by Tenant to comply with any of its payment obligations
under this Exhibit D shall constitute an Event of Default under the terms of the
Lease, and Landlord shall then be entitled to the benefit of all of the remedies
provided for in the Lease.
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EXHIBIT E
4600 SOUTH SYRACUSE
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. All signs or notices visible in or from public corridors or
from outside the Premises shall be subject to Landlord's prior written approval.
3. The Building directory, located in the Building lobby as
provided by Landlord, shall be available to Tenant solely to display its name
and location in the Building, which display shall be as directed by Landlord.
4. 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 the Building.
5. The toilet rooms, urinals, wash bowls and other apparatus shall
not be used for any purposes other than that for 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.
6. Tenant shall not cause any unusual janitorial labor or
services.
7. No cooking, except for microwave cooking, shall be done or
permitted by Tenant in the Premises, nor shall the Premises be used for lodging.
8. Tenant shall not bring upon, use or keep in the Premises or the
Complex any kerosene, gasoline, turpentine, naphtha, benzine, or inflammable or
combustible fluid or material, or use any method of heating or air conditioning
other than that supplied by Landlord.
9. 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.
10. Upon the termination of the tenancy, Tenant shall deliver to
Landlord all keys, cards 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, cards, or passes so furnished, Tenant shall pay Landlord therefor. Tenant
shall not make, or
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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.
11. 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.
12. 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.
13. Tenant shall cause all doors to the Premises to be closed and
securely locked before leaving the Building at the end of the day.
14. 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.
15. Tenant shall cooperate fully with Landlord to assure the most
effective, operation of the Premises' or the Building's heating, ventilation,
and air conditioning, and shall refrain from attempting to adjust any controls,
Tenant shall keep corridor doors closed.
16. 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 bodily injury
or damage to or loss of property from, in or on the Premises or the Complex,
unless caused by Landlord's gross negligence or willful misconduct.
17. Except with the prior written consent of 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 the prior written consent of the
Landlord.
18. 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 written consent.
19. 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
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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.
20. On Sundays, holidays, 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, and 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. 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 or any other person failing to property
identify himself, or through the failure of the Building to be unlocked and open
for access by Tenant, Tenant's employees and the general public.
21. Tenant shall not change locks or install other locks on doors
without the prior written consent of Landlord.
22. Tenant shall give prompt notice to Landlord of any accidents
to or defects in plumbing, electrical fixtures or heating, ventilation or air
conditioning apparatus so the same may be attended to properly.
23. 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, and the same 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.
24. 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.
25. Tenant shall not permit or suffer the Premises to be occupied
or used in a manner which, in Landlord's reasonable judgment would be
objectionable to Landlord or other occupants of the Complex by reason of noise,
odors, or vibrations or would otherwise 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, pipe, or cigarette in
the Building or parking structure is prohibited.
26. Canvassing, soliciting and peddling in the Complex are
prohibited. Tenant shall cooperate to prevent the same.
27. All requests for overtime air conditioning or heating must be
submitted in writing to the Building Management office by 2:00 p.m., on the day
desired for weekday requests, by 2:00 p.m. on Friday for weekend requests and by
2:00 p.m. on the preceding business day for holiday requests.
28. The following dates shall constitute "holidays" as said term
is used in the Lease and in these Rules and Regulations:
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(A) New Year's Day
(B) Good Friday
(C) Memorial Day
(D) Independence Day
(E) Labor Day
(F) Thanksgiving Day
(G) Friday following Thanksgiving Day
(H) Christmas
(1) Any other holiday recognized and taken by
tenants occupying at least one-half (1/2) of
the Rentable Area of office space of the
Building.
If in the case of any holiday listed in (A) through (H) a
different day shall be observed than the respective days described in (A)
through (H), then that day which constitutes the day observed by national banks
in Denver, Colorado, on account of such holiday shall constitute the holiday
under this lease.
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 or desirable for the safety, care and
cleanliness of the Complex or for the preservation of order therein. Smoking
shall be permitted outside of the Building and parking structure only in such
area or areas as Landlord may designate, and all cigarettes and cigars shall be
disposed of only in receptacles placed therein by Landlord.
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EXHIBIT F
4600 SOUTH SYRACUSE
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
described herein for the use of, a total number of spaces for the parking of
vehicles in the Complex which shall be equal to 3.6 spaces for each 1000 square
feet of Rentable Area included within the Premises. The initial number of
parking spaces shall be revised as the Premises are modified by the addition or
deletion of any space therefrom. Of that number, fifty percent (50%) of the
spaces shall be unassigned parking spaces in the parking garage of the Complex
and (subject to the provisions of the next sentence), fifty percent (50%) of the
spaces shall be unassigned parking spaces on the surface parking lot. During the
period from the Commencement Date until the date which is one (1) year from the
Commencement Date, Tenant shall take and pay for at least twelve (12) of the
initial number of spaces located within the parking garage, but shall not be
required to take and pay for the remainder of those garage spaces. Tenant shall
notify Landlord on or prior to the Commencement Date of the number of spaces
within the parking garage, up to the maximum number of garage spaces provided
above, which it will initially take. During the following year, Tenant shall
provide Landlord with at least thirty (30) days notice of any additional number
of garage spaces which it desires to take, up to the maximum number of spaces
set forth above. On or prior to the date which is one (1) year from the
Commencement Date, Tenant shall notify Landlord of the number of garage spaces,
up to the maximum number of spaces set forth above, which it shall take and for
which it shall pay for the remainder of the Term (subject, however, to any
necessary readjustment of the total number of spaces available as a result of
the addition or deletion of space from the Premises). Landlord reserves the
right, if additional improvements are constructed upon the Project as part of
the second phase thereof, at any time during the Term of this Lease, both during
and after such construction occurs, to relocate any or all of the parking spaces
initially provided in the surface parking lot into a parking garage or other
structured parking at the Complex. Tenant's initial obligation to pay monthly
rent shall be $55.00 per month for each unassigned space in the parking garage;
provided, however, that such amount may be increased by Landlord during the Term
to the then-current rates charged from time to time by the operator of the
parking garage. Tenant shall not owe any monthly rent with respect to the
unassigned spaces on the surface parking lot during the initial Term of the
Lease; provided, however, that after such initial Term, such amount may be
increased by Landlord during the Term to the then-current rates charged from
time to time by the operator of the surface parking lot; and provided further
that Tenant shall pay the then-current rates for garage spaces charged by the
operator of the parking garage with respect to any surface parking spaces which
are relocated to a parking garage or other structured parking as provided above
during the initial Term of the Lease. All monthly parking rent shall be payable
in advance on the first day of each month within the Term directly to the
operator of the garage and surface parking lot, and Tenant's right to continued
use of the spaces is conditional upon receipt of those payments in a timely
manner. Tenant's rights to use the parking garage of the Complex or the surface
parking lot 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 garage of the Complex or the surface parking lot
are
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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 garage or surface parking lot and shall
use the same in accordance with Landlord's directions. If for any reason
Landlord fails, despite reasonable good faith efforts, 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. Notwithstanding the
foregoing, in the event some or all of the parking spaces become unavailable,
Landlord shall use commercially reasonable efforts to find replacement parking
spaces. 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.
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EXHIBIT G
0000 XXXXX XXXXXXXX
BASE BUILDING SHELL AND BUILDING STANDARD ITEMS
The "Base Building Shell" shall consist of the core and shell structure of the
Building, which is comprised of the following general systems and components,
each of which shall be provided at Landlord's expense except as specifically
provided below
1. The Building is structural steel with composite metal deck and concrete
floors. Troweled finished floor slabs will be provided in all tenant areas
ready for the installation of carpet or other floor coverings with minimal
floor preparation. The floor slabs are designed to accommodate a 50 lb.
live load and 20 lb. partition load. Some minor floor leveling or patching
may be required as part of tenant work.
2. The Building envelope will consist of thermally insulated vision and
spandrel glass units and architectural granite. The perimeter wall will be
insulated and fire-safed at all floor slab edge conditions.
3. The window treatment will be surface mounted, horizontal mini-blinds with
manufacturer's standard vertical lifting and horizontal tilting unit
complete with head rail, bottom rail, slats and accessories.
4. The multi-tenant elevator lobby will be painted gypsum board and/or
acoustical tile ceiling, sculptured and painted gypsum board walls and
carpeted floors. The common corridor walls are drywalled and finished on
the corridor side only.
5. Stairways will be designed to accommodate use by the tenant as inter-floor
connectors in addition to exiting. Stair width, tread rise and run,
lighting and finishes shall promote tenant usage in a safe manner while
meeting all applicable code requirements. Walls are to be painted gypsum
board and sealed concrete floors. The stairways will be pressurized for
exiting in an emergency situation. Stairwells remain locked at all times.
Card readers may be added at the Tenant's expense.
6. Core restrooms will be finished in ceramic tile on the floor and one wet
wall. The other walls will be finished in vinyl wall covering. The ceiling
will be 2 x 2 x 5/8" regular acoustical material. Stone counter tops and
ceiling hung painted metal toilet partitions are to be provided, as well as
recessed and semi-recessed toilet accessories and full width unframed
mirrors. Men's and women's restrooms shall be provided on each floor in a
size and configuration to serve the occupants. Fixture counts should be
based on the code required minimums or the actual occupancy of the
Building, whichever is greater.
7. Drinking fountains will be provided adjacent to the toilet rooms on each
floor.
8. Interior columns will be constructed out of metal studs, taped and finished
to accept paint or other finishes.
9. Electrical rooms will be provided on each floor as required.
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10. Space for telephone and fiber "punch down" blocks (terminations) will be
provided in a Telephone Equipment Room in the core of each typical floor
level. A main telephone and fiber frame room will be located near the point
of service to the Building. A series of sleeves will be provided at each
level for main vertical distribution. At Tenant's expense, all individual
tenant telephone switches and equipment will be located within the tenant
spaces.
11. The Base Building Shell will provide space near the point of service to the
Building with open sleeves on each floor in the telephone closet, for the
installation at Tenant's expense of individual tenant fiber optic equipment
and cable risers.
12. Core walls will be constructed of gypsum board attached to metal studs. The
gypsum board will be taped, floated and sanded ready for paint application.
13. Core doors will be full height (8'-10"), 3'-0" wide and 1-3/4" thick solid
core with a wood veneer surface installed in hollow metal frames with
stainless steel hardware, including lever type handles.
14. Air conditioning will be provided to the tenant spaces from a variable air
volume, factory built, water cooled DX compressor air handling unit
designed and constructed to meet all current air quality issues as set
forth in ASHRAE 62-89 Standards. Air handling units will be installed in
the core area mechanical equipment rooms.
15. Air distribution to the tenant spaces will be provided through externally
insulated primary ductwork systems constructed and sealed in accordance
with SMACNA Standards (1995). Perimeter slot type diffusers will be
prestocked on the floor, for purchase and installation by Tenant.
16. The floor terminal equipment will be series type fan powered or variable
air volume terminal units of double wall construction with internal foil
backed acoustical attenuation.
17. Two 4" drain columns (risers), waste and vent, will be provided on each
floor for future connection of tenant fixtures. One tenant drain riser will
be located at each end of the core. Cold water stub-outs (1/2") will be
provided at each drain riser for tenant use.
18. The core & shell sprinkler system includes a vertical standpipe at each
stairwell, mains, branch lines, and semi-recessed heads on each floor in a
pattern sufficient to comply with NFPA 13 and local code requirements.
Generally, the mains and branch piping will be installed 8" above the
ceiling plenum zone intended for tenant lighting.
19. Electrical service to the typical floors will be provided from a base
Building plug-in xxxx riser sized to provide a total capacity of 8.0 xxxxx
per square foot of useable area. Each tenant as part of the core and shell
is allocated 4.0 xxxxx per square foot (2.0 xxxxx per square foot for
lighting, and 2.0 xxxxx per square foot for power). The additional 4.0
xxxxx per square foot may be utilized at Tenant's expense. Electrical
transformers, panels and distribution will be provided in the care area to
serve both
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the low and high voltage needs of the base Building and tenant. Dry type
transformers will serve the low voltage power distribution system. All on
floor distribution shall be paid for by Tenant as part of the tenant
improvements.
20. The Building requires all electrical wiring for core & shell and tenant
work be in conduit. Wiring for all fire alarm devices will be plenum rated
cabling.
21. An emergency power system will be provided utilizing a diesel powered
generator to serve exit way and emergency lighting in tenant areas and life
safety systems.
22. The Base Building Shell will provide a code complying, fully addressable
fire alarm system for the common areas only. Each tenant, at its expense,
will need to add life safety devices as required to comply with local
codes.
23. The following items are examples of architectural finishes which are
specifically excluded from the core & shell construction and are intended
to be part of the tenant improvement package; all ceiling grid and tile,
2x4 light fixtures, all doors, frames and hardware including the tenant's
entrance, secondary ductwork, including the installation of perimeter slot
diffusers, life safety devices, partitions, and flooring. Each tenant is
required to install demising partitions at the perimeter of the space.
The initial "Building Standard" finishes for the Building shall be listed in a
manual to be provided by Landlord to Tenant. Landlord reserves the right to add
additional items to the list, or to change the Building Standard items, at any
time.
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EXHIBIT H
0000 XXXXX XXXXXXXX
FORM OF SUBORDINATION, NONDISTURBANCE AND ATTORNMENT
AGREEMENT
77
NON-DISTURBANCE, ATTORNMENT AND SUBORDINATION AGREEMENT
THIS AGREEMENT is made and entered into as of this __ day of
_______ 1999, by and among BANKBOSTON, N.A., a national banking association
(hereinafter called the "Lender") as administrative agent for itself and the
other lenders who become parties to a certain Construction and Term Loan
Agreement dated June 30, 1999, (hereinafter called the "Tenant") and DENVER
XXXXX DEVELOPMENT, LLC (hereinafter called the "Landlord").
WITNESSETH:
WHEREAS, Landlord owns certain real property located in Denver County,
Colorado, and more particularly described in Exhibit A attached hereto and made
a part hereof (said property being hereinafter called the "Property"); and
WHEREAS, Landlord and Tenant made and entered into that certain Lease,
dated the __ day of ________, 1999, with respect to certain premises
constituting a portion of the Property therein described, known as 0000 Xxxxx
Xxxxxxxx (said Lease being hereinafter called the "Lease" and said premises
being hereinafter called the "Leased Premises"); and
WHEREAS, on or about the date hereof, Landlord has entered into and
delivered that certain Deed of Trust and Security Agreement in favor of Lender
recorded in the Denver County Registry of Deeds prior to the recording of this
Agreement (said Mortgage and Security Agreement being hereinafter called the
"Security Deed"), conveying the Property to secure the payment of the
indebtedness described in the Security Deed; and
WHEREAS, on or about the date hereof, Landlord has entered into and
delivered that certain Assignment of Leases and Rents in favor of Lender
recorded in the Denver County Registry of Deeds prior to the recording of this
Agreement (said Assignment of Leases and Rents being hereinafter called the
"Assignment of Leases"), assigning all of Landlord's right, title and interest
as lessor under the Lease to further secure the indebtedness described in the
Security Deed; and
WHEREAS, the parties hereto desire to enter into this Non-Disturbance,
Attornment and Subordination Agreement;
NOW, THEREFORE, for and in consideration of the mutual covenants
hereinafter set forth and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Lender, Tenant and Landlord hereby
covenant and agree as follows:
1. Estoppel. Tenant hereby certifies to Lender that (i) the Lease, as
described above, is the true, correct and complete Lease, and has not been
modified or amended and constitutes the entire agreement between Landlord and
Tenant, and (ii) as far as is known to Tenant, there are no defaults of Landlord
under the Lease and there are no existing circumstances which with the passage
of time, or giving of notice,
78
or both, would give rise to a default wider the Lease and/or allow Tenant to
terminate the Lease.
2. Non-Disturbance. So long as no default exists, nor any event has
occurred which has continued to exist for such period of time (after notice, if
any, required by the Lease) as would entitle the lessor under the Lease to
terminate the Lease or would cause, without any further action on the part of
such lessor, the termination of the Lease or would entitle such lessor to
dispossess the lessee thereunder, the Lease shall not be terminated, nor shall
such lessee's use, possession or enjoyment of the Leased Premises or rights
under the Lease be interfered with in any foreclosure or other action or
proceeding in the nature of foreclosure instituted under or in connection with
the Security Deed or in case Lender takes possession of the Property pursuant to
any provisions of the Security Deed or the Assignment of Leases, unless the
lessor under the Lease would have had such right if the Security Deed or the
Assignment of Leases had not been made, except that neither the person or entity
acquiring the interest of the lessor under the Lease as a result of any such
action or proceeding or deed in lieu of any such action or proceeding
(hereinafter called the "Purchaser") nor Lender if Lender takes possession of
the Property shall be (a) liable for any act or omission of any prior lessor
under the Lease; or (b) liable for the return of any security deposit which
lessee under the Lease has paid to any prior lessor under the Lease; or (c)
subject to any offsets or defenses which the lessee under the Lease might have
against any prior lessor under the Lease; or (d) bound by any base rent,
percentage rent or any other payments which the lessee under the Lease might
have paid for more than the current month to any prior lessor under the Lease;
or (e) bound by any amendment or modification of the Lease made without Lender's
prior written consent; or (f) bound by any consent by any lessor under the Lease
to any assignment or sublease of the lessee's interest in the Lease made without
also obtaining Lender's prior written consent; or (g) personally liable for any
default under the Lease or any covenant or obligation on its part to be
performed thereunder as lessor, it being acknowledged that Tenant's sole remedy
in the event of such default shall be to proceed against Purchaser's or Lender's
interest in the Property. Notwithstanding anything contained herein to be
contrary, Lender shall have absolutely no obligation to perform any of
Landlord's construction covenants under the Lease, provided that if Lender shall
not perform such covenants in the event of foreclosure or deed in lieu thereof
and within a reasonable time following taking of possession by Lender, then
Tenant shall have the right to terminate its obligations under the Lease and to
pursue any and all legal remedies it may have against Landlord and any third
parties other than Lender.
3. Attornment. Unless the Lease is terminated in accordance with
Paragraph 2, if the interests of the lessor under the Lease shall be transferred
by reason of the exercise of the power of sale contained in the Security Deed
(if applicable), or by any foreclosure or other proceeding for enforcement of
the Security Deed, or by deed in lieu of foreclosure or such other proceeding,
or if Lender takes possession of the Property pursuant to any provisions of the
Security Deed or the Assignment of Leases, the lessee thereunder shall be bound
to the Purchaser or Lender, as the case may be, under all of the terms,
covenants and conditions of the Lease for the balance of the term thereof and
any extensions or renewals thereof which may be effected in accordance with any
option therefor in the Lease, with the same force and effect as if the Purchaser
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79
or Lender were the lessor under the Lease, and Tenant, as lessee under the
Lease, does hereby attorn to the Purchaser and Lender if it takes possession of
the Property, as its lessor under the Lease. Such attornment shall be effective
and self-operative without the execution of any further instruments upon the
succession by Purchaser to the interest of the lessor under the Lease or the
taking of possession of the Property by Lender. Nevertheless, Tenant shall, from
time to time, execute and deliver such instruments evidencing such attornment as
Purchaser or Lender may require. The respective rights and obligations of
Purchaser, Lender and of the lessee under the Lease upon such attornment, to the
extent of the then remaining balance of the term of the Lease and any such
extensions and renewals, shall be and are the same as now set forth in the Lease
except as otherwise expressly provided in Paragraph 2.
4. Subordination. Tenant hereby subordinates all of its right, title
and interest as lessee under the Lease to the right, title and interest of
Lender under the Security Deed, and Tenant further agrees that the Lease now is
and shall at all times continue to be subject and subordinate in each and every
respect to the Security Deed (including, without limitation, the casualty and
condemnation provisions of the Lease, which are hereby specifically subordinated
to the Security Deed) and to any and all increases, renewals, modifications,
extensions, substitutions, replacements and/or consolidations of the Security
Deed.
5. Assignment of Leases. Tenant hereby acknowledges that all of
Landlord's right, title and interest as lessor under the Lease is being duly
assigned to Lender pursuant to the terms of the Assignment of Leases, and that
pursuant to the terms thereof all rental payments under the Lease shall continue
to be paid to Landlord in accordance with the terms of the Lease unless and
until Tenant is otherwise notified in writing by Lender. Upon receipt of any
such written notice from Lender, Tenant covenants and agrees to make payment of
all rental payments then due or to become due under the Lease directly to Lender
or to Lender's agent designated in such notice and to continue to do so until
otherwise notified in writing by Lender. Landlord hereby irrevocably directs and
authorizes Tenant to make rental payments directly to Lender following receipt
of such notice, and covenants and agrees that Tenant shall have the right to
rely on such notice without any obligation to inquire as to whether any default
exists under the Security Deed or the Assignment of Leases or the indebtedness
secured thereby, and notwithstanding any notice or claim of Landlord to the
contrary, and that Landlord shall have no right or claim against Tenant for or
by reason of any rental payments made by Tenant to Lender following receipt of
such notice. Tenant further acknowledges and agrees: (a) that under the
provisions of the Assignment of Leases, the Lease cannot be terminated (nor can
Landlord accept any surrender of the Lease) or modified in any of its terms, or
consent be given to the waiver or release of Tenant from the performance or
observance of any obligation under the Lease, without the prior written consent
of Lender, and without such consent no rent may be collected or accepted by
Landlord more than one month in advance; and (b) that the interest of Landlord
as lessor under the Lease has been assigned to Lender for the purposes specified
in the Assignment of Leases, and Lender assumes no duty, liability or obligation
under the Lease, except only under the circumstances, terms and conditions
specifically set forth in the Assignment of Leases.
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6. Notice of Default by Lessor. Tenant, as lessee under the Lease,
hereby covenants and agrees to give Lender written notice properly specifying
wherein the lessor under the Lease has failed to perform any of the covenants or
obligations of the lessor under the Lease, simultaneously with the giving of any
notice of such default to the lessor under the provisions of the Lease. Tenant
agrees that Lender shall have the right, but not the obligation, within thirty
(30) days after receipt by Lender of such notice (or within such additional time
as is reasonably required to correct any such default) to correct or remedy, or
cause to be corrected or remedied, each such default before the lessee under the
Lease may take any action under the Lease by reason of such default. Such
notices to Lender shall be delivered in duplicate to:
BankBoston, N.A.
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx, Real Estate Division
and
Goulston & Stoffs P.C.
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx, Esquire
or to such other address as the Lender shall have designated to Tenant by giving
written notice to Tenant _____________________, Attention: ____________, or to
such other address as may be designated by written notice from Tenant to Lender.
7. No Further Subordination. Except as expressly provided to the
contrary in Paragraph 4 hereof, Landlord and Tenant covenant and agree with
Lender that there shall be no further subordination of the interest of lessee
under the Lease to any lender or to any other party without first obtaining the
prior written consent of Lender. Any attempt to effect a further subordination
of lessee's interest under the Lease without first obtaining the prior written
consent of Lender shall be null and void.
8. As to Landlord and Tenant. As between Landlord and Tenant, Landlord
and Tenant covenant and agree that nothing herein contained nor anything done
pursuant to the provisions hereof shall be deemed or construed to modify the
Lease.
9. As to Landlord and Lender. As between Landlord and Lender, Landlord
and Lender covenant and agree that nothing herein contained nor anything done
pursuant to the provisions hereof shall be deemed or construed to modify the
Security Deed or the Assignment of Leases.
10. Title of Paragraphs. The titles of the paragraphs of this agreement
are for convenience and reference only, and the words contained therein shall in
no way be held to explain, modify, amplify or aid in the interpretation,
construction or meaning of the provisions of this agreement.
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81
11. Governing Law. This agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts.
12. Provisions Binding. The terms and provisions hereof shall be
binding upon and shall inure to the benefit of the heirs, executors,
administrators, successors and permitted assigns, respectively, of Lender,
Tenant and Landlord. The reference contained to successors and assigns of Tenant
is not intended to constitute and does not constitute a consent by Landlord or
Lender to an assignment by Tenant, but has reference only to those instances in
which the lessor under the Lease and Lender shall have given written consent to
a particular assignment by Tenant thereunder.
[End of Page]
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82
IN WITNESS WHEREOF, the parties have hereunto set their respective
hands and seals as of the day, month and year first above written.
LENDER:
BANKBOSTON, N.A., a national banking association, as agent
By:
------------------------------------
Title:
---------------------------------
LANDLORD:
DENVER XXXXX DEVELOPMENT, LLC,
a Delaware limited liability company
By: Xxxxx 1997 U.S. Office Development Fund, L.P.,
a Delaware limited partnership,
its sole member
By: Xxxxx 1997 U.S. ODF GP Limited Partnership,
a Texas limited partnership,
its general partner
By: Xxxxx 1997 U.S. ODF LLC,
a Delaware limited liability company,
its general partner
By: Xxxxx Interests Limited partnership,
a Delaware limited partnership,
its sole member
By: Xxxxx Holdings, Inc.,
a Texas close corporation,
its general partner
By:
------------------------
Xxxxxx X. Xxxxx
Vice President
TENANT:
____________., a __________ corporation
By:
-----------------------------------
Title:
-----------------------
6
83
COMMONWEALTH OF MASSACHUSETTS )
)
COUNTY OF )
-----------------
The foregoing instrument was acknowledged before me on the _____ day of
__________, 1999, by __________________, _______________of BANKBOSTON, N.A., a
national banking association, on behalf of said association.
-----------------------------------
Notary Public in and for the
State of Massachusetts
Printed Name:
---------------------
My commission expires:
------------
STATE OF )
------------------ )
COUNTY OF )
-----------------
The foregoing instrument was acknowledged before me on the ____ day of
________, 1999, by _______________, ______________________ of Xxxxx Holdings,
Inc., a Texas close corporation, the general partner of Xxxxx Interests Limited
Partnership, a Delaware limited partnership, the sole member of Hines 1997 U.S.
ODF LLC, a Delaware limited liability company, the general partner of Xxxxx 1997
U.S. ODF GP Limited Partnership, a Texas limited partnership, the general
partner of Xxxxx 1997 U.S. Office Development Fund, L.P., a Delaware limited
partnership, the sole member of DENVER XXXXX DEVELOPMENT, LLC, a Delaware
limited liability company, on behalf of said entities.
-----------------------------------
Notary Public in and for the
State of
--------------------------
Printed Name:
---------------------
My commission expires:
------------
7
84
STATE OF )
------------------ )
COUNTY OF )
-----------------
The foregoing instrument was acknowledged before me on the ___ day of
__________, 1999, by _______________, ______________of ___________, a
corporation, on behalf of said corporation.
-----------------------------------
Notary Public in and for the
State of
--------------------------
Printed Name:
---------------------
My commission expires:
------------
85
EXHIBIT I
0000 XXXXX XXXXXXXX
FORM OF LETTER OF CREDIT
IRREVOCABLE LETTER OF CREDIT
[NAME AND ADDRESS OF ISSUING BANK]
[Date]
Denver Xxxxx Development, LLC
0000 X. Xxxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Ladies and Gentlemen:
At the request and for the account of iSky, Inc., located at 0000 X.
Xxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000 (hereinafter called "Applicant"), we
hereby establish our Irrevocable Letter of Credit No. [INSERT NUMBER] in your
favor and authorize you to draw on us up to the aggregate amount of US
$$662,288.00, available by your draft(s) at sight drawn on us and accompanied by
the following:
A written statement by you that:
3. Applicant is in monetary default under the Lease Agreement,
dated as of [insert date of lease] between you, as Landlord,
and Applicant, as Tenant (the "Lease"), and Landlord has met
the conditions contained in the Lease Agreement for drawing on
this, Irrevocable Letter of Credit; or
4. Applicant has failed to deliver timely a renewal, replacement
or additional letter of credit as required in the Lease.
This Irrevocable Letter of Credit will be duly honored by us at sight
upon delivery of the statement set forth above without inquiry as to the
accuracy of such statement and regardless of whether Applicant disputes the
content of such statement.
We hereby engage with you that all drafts drawn under and in compliance
with the terms of this Irrevocable Letter of Credit will be duly honored by us
if presented at [insert address of issuing bank in Denver, Colorado] no later
than [insert expiration date of letter of credit], it being a condition of this
Irrevocable Letter of Credit that it shall be automatically extended for periods
of at least one year from the present and each future
86
expiration date unless, at least 45 days prior to the relevant expiration date,
we notify you, by certified mail, return receipt requested, that we elect not to
extend this Irrevocable Letter of Credit for any additional period.
This Irrevocable Letter of Credit is transferable at no charge to any
transferee of the Landlord under the Lease upon notice to the undersigned from
the Landlord and such transferee.
This irrevocable Letter of Credit is subject to the Uniform Customs and
Practices for Documentary Credits (1983-Rev) International Chamber of Commerce
Publication #400.
Sincerely yours,
[insert authorized signature)
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