EXHIBIT 10.26
LEASE AGREEMENT
FOR
0000 XXXXX XXXXXXXX
XXXXXX, XXXXXXXX
BETWEEN
DENVER XXXXX DEVELOPMENT, LLC,
AS LANDLORD
AND
TANNING TECHNOLOGY CORPORATION,
AS TENANT
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 ................................................................7
3. ANNUAL RENT ...........................................................8
A. Annual Rent ........................................................8
B. Terms of Payment ...................................................8
4. ADDITIONAL RENT .......................................................8
A. Tenant's Share of Computed Operating Expenses ......................8
B. Partial Years ......................................................9
C. Objections by Tenant ...............................................9
D. No Reduction in Annual Rent .......................................10
5. CONSTRUCTION AND POSSESSION ..........................................10
A. Construction of Premises ..........................................10
B. Early Occupancy ...................................................10
C. Failure to Complete ...............................................11
D. Punch List ........................................................12
6. OCCUPANCY OF PREMISES ................................................12
A. Use ...............................................................12
B. Compliance ........................................................12
7. SERVICES PROVIDED BY LANDLORD ........................................12
A. Description of Standard Services ..................................12
B. Additional Services ...............................................14
C. Interruption of Services ..........................................14
8. REPAIRS ..............................................................14
A. Repairs Within the Premises .......................................14
B. Landlord's Entry ..................................................14
C. Notice of Damage ..................................................15
9. ADDITIONS, IMPROVEMENTS, AND ALTERATIONS .............................15
10. COVENANT AGAINST LIENS ..............................................16
A. Mechanics Liens ...................................................16
B. Sales, Use, Income and Personal Property Taxes ....................16
11. INSURANCE ...........................................................16
A. Waiver of Subrogation .............................................16
B. Coverage ..........................................................17
C. Avoid Action Increasing Rates .....................................17
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D. Notices by Tenant's Insurance Carrier to Landlord .................18
12. FIRE OR CASUALTY ....................................................18
A. Restoration - Cancellation upon Major Damage ......................18
B. Rent Abatement ....................................................19
13. WAIVER OF CLAIMS - INDEMNIFICATION ..................................19
14. NONWAIVER; ACCEPTANCE OF RENT OR PERFORMANCE AFTER BREACH ...........20
15. CONDEMNATION ........................................................20
16. ASSIGNMENT AND SUBLETTING ...........................................20
17. SURRENDER OF POSSESSION .............................................22
18. PERSONAL PROPERTY ...................................................22
A. Responsibility ....................................................22
B. Taxes on Certain Improvements, Alterations and Conditions .........22
C. Landlord's Lien ...................................................22
19. HOLDING OVER ........................................................23
20. ESTOPPEL CERTIFICATE ................................................23
21. OBLIGATIONS TO MORTGAGEES AND LESSORS ...............................23
A. Subordination .....................................................23
B. Notice to Landlord, Mortgagees, and Lessors .......................24
22. CERTAIN RIGHTS RESERVED BY LANDLORD .................................24
23. RULES AND REGULATIONS ...............................................25
24. DEFAULT AND REMEDIES ................................................25
A. Events of Default .................................................25
B. Landlord's Remedies ...............................................27
C. Concurrent or Subsequent Exercise of Remedies .....................30
D. Choice of Law, Jurisdiction and Venue .............................30
25. EXPENSES OF ENFORCEMENT .............................................31
26. COVENANT OF QUIET ENJOYMENT .........................................31
27. SECURITY DEPOSIT ....................................................31
28. REAL ESTATE BROKER ..................................................32
29. MISCELLANEOUS .......................................................32
A. Rights Cumulative .................................................32
B. Interest ..........................................................32
C. Binding Effect ....................................................32
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D. Lease Contains All Terms ..........................................32
E. Delivery for Examination ..........................................33
F. No Air Rights .....................................................33
G. Modification of Lease .............................................33
H. Substitution of Premises ..........................................33
I. Transfer of Landlord's Interest ...................................33
J. Prohibition Against Recording .....................................33
K. Captions ..........................................................33
L. Only Landlord/Tenant Relationship .................................33
M. Bills .............................................................33
N. Severability ......................................................33
O. Jury Trial ........................................................34
P. Authority to Bind .................................................34
Q. Tenant's Covenants Independent ....................................34
R. Business Days and Hours; Holidays .................................34
S. Force Majeure .....................................................34
30. LIMITATIONS ON LANDLORD'S LIABILITY .................................34
31. NOTICES .............................................................35
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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
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LEASE AGREEMENT
0000 XXXXX XXXXXXXX
This LEASE AGREEMENT (this "Lease") is made as of the ____ day of
___________________, 1998, between DENVER XXXXX DEVELOPMENT, LLC, a Delaware
limited liability company (the "Landlord"), and TANNING TECHNOLOGY CORPORATION,
a ___________________________________ (the "Tenant"), whose present address is
_______________________________________ 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: Seven years and five months, beginning on the earlier of (I) the
date of substantial completion of the Tenant Work in the Premises, as
defined in Paragraph 9 of Exhibit D to this Lease, or (ii) August 1,
1999 ("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 date which is seven years and five months
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:
LEASE YEAR ANNUAL RATE PER RENTABLE SQUARE FOOT
---------- ------------------------------------
Lease Years 1 through 3* $26.00
Lease Years 4 and 5 $27.00
Lease Years 6 and 7, and remaining 5 months $28.00
*subject to abatement provision in Section 3.A below
(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 administrative office purposes, and related or
ancillary uses.
(5) Rentable Area of the Premises: approximately 50,000 square feet
consisting of all of Floors 12 and 13, and a portion of Floor 11, of
the Building. 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.
(6) Security Deposit: _____________
(7) Tenant's Broker: Xxxxx Group
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
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 299,766 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, the Rentable Area of the
Building shall be adjusted to reflect the number of square feet of
Rentable Area determined by such calculation.
(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
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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 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) "Operating Expenses" means all expenses, costs and disbursements of
every kind and nature which Landlord shall in good faith pay or incur
or become obligated to pay or incur because of or in connection with
the ownership of the
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Complex or the operation or maintenance of the Complex to Class A
standards within the Denver Technological Center, 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 and benefits
relating to employees providing these services shall be included.
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).
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 (excluding, however, any such
costs which exceed arms-length competitive market prices for
goods or services paid to any person, firm or corporation related
or otherwise affiliated with Landlord);
v) Cost of all insurance relating to the Complex, including, but not
limited to, the cost of casualty, 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 or which
may be required by governmental authority, or to promote safety
or to maintain the quality 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.
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viii) All internal control audit and operating expense audit costs for
the Complex, and a prorata allocation for the Complex 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.
ix) Office rent (to the extent such rent does not exceed the fair
market rental rate for the applicable space, as defined below)
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 payable to the manager of the Building, said
contribution to be equal to three percent (3%) of the 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).
Operating Expenses shall not include any settlement, payment or
judgment incurred by Landlord due to its willful misconduct or gross
negligence, as established by a court of law, or the cost of any
damage to the Complex caused directly by Landlord's willful misconduct
or gross negligence, as established by a court of law.
(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.(7), 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.
(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;
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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 exclusively for the operation of the
Complex (or if not used exclusively for the Complex, a prorata share
of the same based upon the amount such personal property is used in
connection with the operation of the Complex compared to its total
use). 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, 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 (I) 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 (II) multiplied times the number of square
feet of Rentable Area contained within the Premises. Notwithstanding
the foregoing provisions, Landlord shall not be entitled to collect a
greater amount with respect to the Computed Operating Expenses for any
calendar year during the Term than the Computed Operating Expenses
actually paid or incurred by Landlord for that calendar year. In
addition, 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
6
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 does not
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 fully furnished all of the services described in Section 7 to
such premises, such premises shall be deemed "unoccupied" for purposes
of the preceding sentence.
(16) "Term" means the term of this Lease which shall commence on the
Commencement Date set forth in Section 1.A.(1) 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:
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."
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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 1A(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. Notwithstanding any provision contained elsewhere in
this Lease to the contrary, provided that Tenant is not otherwise in
default under the terms and provisions of this Lease, Annual Rent shall be
abated during the first five (5) months of the Term, and Tenant shall
commence Annual Rent payments on the date which is six (6) months from the
Commencement Date.
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 (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; provided, however, that Tenant shall not be
obligated to pay any amount of such excess which is attributable to Taxes
unless the Taxes for such Calendar Year have exceeded $2.80 per square foot
of Rentable Area in the Building. Landlord shall, within a period of one
hundred fifty (150) days (or as soon thereafter as possible) 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.
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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 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 is not then in default under the terms
of this Lease and 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 ninety (90) 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 copy of the Complex Audit, and such objections are not
resolved within sixty (60) days of Tenant's applicable notice of
objections, then Landlord shall appoint within ninety (90) days of Tenant's
objection letter a nationally recognized independent certified public
accounting firm (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. If Tenant fails to object in writing to Operating Expenses or the
calculation of Tenant's Share of Computed Operating Expenses within ninety
(90) 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 if Tenant then fails to object in writing within
sixty (60) days after a Complex Audit, if any, is provided, 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
9
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 1A(2)
shall not be reduced if Operating Expenses for any Calendar Year are below
the Initial Operating Expenses Basic Cost.
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 by Landlord in accordance
with the Tenant Construction Agreement attached hereto as Exhibit D.
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;
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).
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.
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. Tenant may request Landlord's
permission to store certain items of personal property in the Premises
immediately prior to the Commencement Date, and Landlord shall then notify
Tenant as to whether such storage will be permitted; provided however, that
(i) the decision as to whether such storage shall be permitted shall be
within the sole discretion of Landlord, (ii) if Landlord allows such
storage, it shall be only in the areas and for the time periods designated
by Landlord, and shall not interfere in any fashion with the completion of
the Building or the Tenant Work within the Premises, and (iii) such storage
shall be at Tenant's sole cost and risk, and neither Landlord or its
contractors or subcontractors, nor any of their agents, employees,
licensees, or invitees, shall have any liability or responsibility
whatsoever for any damages, costs, liabilities or expenses in connection
with such stored personal property. 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.
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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) if Landlord fails to commence construction of the Building, by
pouring the foundations therefor, on or before September 1,
1998, then either Landlord or Tenant shall have the right to
terminate this Lease, by written notice delivered to the other
not more than thirty (30) days after such date;
(2) 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
(3) if the general contractor for the Building is to perform the
Tenant Work in the Premises under the Tenant Construction
Agreement, then if the Base Building Shell has not been
completed so that Landlord and such general contractor may
commence the Tenant Work in the Premises in accordance with the
Tenant Construction Agreement on or before September 1, 1999
(plus any period of delay caused by Tenant as described in the
Tenant Construction Agreement), Tenant shall have the additional
right to terminate this Lease and all obligations and rights
created hereby, by delivering written notice of termination to
Landlord not more than thirty (30) days after such date;
provided, however, that if a contractor other than the general
contractor for the Building has been selected to perform the
Tenant Work under the Tenant Construction Agreement, then
Tenant's right to terminate as set forth in the first part of
this subparagraph shall not arise unless the Base Building Shell
has not been completed by November 1, 1999.
Upon a termination under subparagraph (2) above, each party shall, upon the
other's request, execute and deliver an agreement in recordable form containing
a release and surrender of all right, title and interest in and to this Lease;
neither Landlord nor Tenant shall have any further obligations to each other,
including without limitation, any obligations to pay for work previously
performed in the Premises; all improvements to the Premises shall become and
remain the property of Landlord; and Landlord shall refund to Tenant any sums
paid to Landlord by Tenant in connection with this Lease, including without
limitation any payments to Landlord of construction costs for the Premises.
Such postponement of the commencement of the Term and such termination 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).
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D. Punch List. Tenant's taking possession of any portion of the Premises
(other than for storage of personal property which may have been permitted
by Landlord pursuant to the provisions of Section 5.B above) shall be
conclusive evidence that such portion of the Premises was in good order and
satisfactory condition when Tenant took possession, except as to items
contained on a punch list to be prepared after an inspection made and
signed by representatives of Landlord and Tenant when Tenant takes
possession. Landlord shall not be responsible for any items of damage
caused by Tenant, its agents, 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 to the condition, use and occupancy of the
Premises throughout the entire Term of this Lease (other than structural
and system repairs as described in Section 7.A.(1), which are the
responsibility of Landlord, or the repair of any latent defects in the
initial construction of the Building or the Premises as set forth in the
Tenant Construction Agreement, or any requirements due to the non-
compliance of the Building or the Premises as initially constructed with
the building codes applicable at the time of construction, which shall
remain the responsibility of Landlord to the extent set forth in the Tenant
Construction Agreement).
7. SERVICES PROVIDED BY LANDLORD.
A. Description of Standard Services. Landlord will furnish for Tenant
and the Premises, subject to the other provisions of this Section 7, the
following services:
(1) repair and maintenance of all structural elements of the Building,
including 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). The cost of such repair and maintenance by Landlord of
the structural elements of the Building 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;
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(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
temperatures and in amounts as may, in the sole judgment of Landlord,
be reasonably required for comfortable use and occupancy under normal
business operations with "Customary Office Equipment" (as used in this
Lease, "Customary Office Equipment" shall include 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). 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.
(3) water for lavatory and toilet purposes, all water service to be
supplied from the regular supply of water to the Building at points of
supply provided for general use of tenants of the Building through
fixtures installed by Landlord;
(4) janitorial services to the Premises 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.
(5) passenger elevators for access to and from the floor(s) on which the
Premises are located, elevators within the parking garage, and freight
elevator service by a swing cab (but only when scheduled through the
Manager of the Building);
(6) toilet facilities on each of the floors occupied by Tenant (which, if
a multi-tenant floor, shall be in common with other tenants);
(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.
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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.
8. REPAIRS.
A. Repairs Within the Premises. Subject to the terms of Sections 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, normal
wear and tear excepted. 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) 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 reasonable
cost of any such work, including an amount sufficient to reimburse Landlord
for overhead and related expenses, forthwith upon being billed for the
same, as additional Rent hereunder.
B. Landlord's Entry. If 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
reasonable cost thereof, including an amount reasonably sufficient to
reimburse Landlord for overhead and related expenses, forthwith upon being
billed
14
for the same, as additional Rent hereunder. Landlord may, but shall not be
required to, enter the Premises at all reasonable times during Tenant's
ordinary business hours on prior notice (except in cases of actual or
suspected emergency, in which case such entry may be at any time and no
prior notice shall be required) for the purpose of inspecting, repairing or
maintaining the same. Landlord shall take reasonable steps in connection
with such entry to minimize any disruption to Tenant's business or its use
of the Premises.
C. Notice of Damage. Tenant shall give prompt notice to Landlord of (a) any
known or apparent fire or other casualty in the Premises, (b) any known or
apparent 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 known or apparent 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.
9. ADDITIONS, IMPROVEMENTS, AND ALTERATIONS. Tenant shall not, without the
prior written consent of Landlord, make any alterations, improvements or
additions to the Premises. If Landlord consents to such alterations,
improvements or additions, it may impose such reasonable conditions with
respect thereto as Landlord deems appropriate, including, without
limitation, requiring Tenant to furnish Landlord with insurance against
liabilities which may arise out of such work, 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 "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 or approved by Landlord. Tenant shall promptly pay, when due, the
cost of all such work and of all decorating required by reason thereof.
Tenant shall also pay to Landlord an amount sufficient, in Landlord's
reasonable judgment, to reimburse Landlord for all of its overhead and
related expenses allocable to such work. Upon completion, Tenant shall
deliver to Landlord, to the extent not previously received by Landlord,
evidence of payment, contractors' affidavits, 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).
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. Unless Landlord has thus 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), all such alterations, improvements and additions shall 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 excepted and, subject to
Tenant's duty to carry insurance as required by this Lease, damage from
fire or other casualty excepted.
15
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 promptly inform Landlord of
such lien and to cause it to be released and removed of record within 20
days after the filing of such lien. 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
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.(1), 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. 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 12A (and Landlord reserves the right to
adopt such a plan) Landlord's waiver of claims contained in the first
sentence of this paragraph will continue to be effective as long as
Tenant's waiver of subrogation remains in effect.
16
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.
(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 employer's 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 worker's compensation insurance may
be provided by the State of Colorado) and shall provide that (a) the
coverage is primary and non-contributing to any insurance that may be
carried by Landlord; (b) the coverage cannot be canceled, modified,
reduced, or otherwise materially changed except after 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
worker's 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
17
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 on the Building, Premises or Complex, or which may increase the
cost of insurance or require additional insurance coverage (unless Tenant
elects to pay the full costs of such increased or additional coverages, in
which case such costs shall be due to Landlord upon presentation of an
invoice or invoices therefor, as additional Rent hereunder). 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 event shall Tenant,
its agents, employees, invitees, visitors, licensees, contractors,
suppliers or workmen bring such flammables or other intrinsically dangerous
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 after
notice and an opportunity to cure as provided in Section 24.A (3) below; 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.E. 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 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 10 days after Landlord delivers to Tenant the notice of estimated
repair time. If either party exercises its option to terminate this Lease,
the Term shall expire and this Lease shall terminate 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 Landlord fails to complete the
repairs within 210 days from the date of such damage, then Tenant shall
again have the option to terminate this Lease, by written notice delivered
to Landlord within 10 days after the expiration of such 210-day period.
Whether or not this Lease is terminated, all
18
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 for the termination right of Tenant set forth
above, Landlord shall have no liability to Tenant in the event such repairs
and restoration are not in fact completed within the time period estimated
by Landlord.
B. Rent Abatement. In the event any fire or casualty damage renders the
Premises untenantable and if this Lease shall not be terminated pursuant to
Section 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; provided, however, that such
waiver shall not apply to claims or damages arising from or related to the
gross negligence or willful misconduct of Landlord. 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 (other than the gross negligence or
willful misconduct of Landlord). 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, unless caused by the gross negligence or
willful misconduct of Landlord. 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.
19
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 either party 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 over 50% of the Premises is thus taken or
sold, Tenant may terminate this Lease if, and only if, in Tenant's
reasonable judgment, the Premises cannot be operated by Tenant in an
economically viable fashion because of such partial taking 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 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
20
hereunder; (ii) suffer to occur or permit to exist any assignment of this
Lease or any interest hereunder, or any recordable 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 and their lawful licensees and invitees. For purposes of the
preceding sentence, any change in ownership of Tenant or of any guarantor
of Tenant's obligations under this Lease (a "Guarantor") shall be deemed to
be an assignment of this Lease. A "change in ownership" shall be deemed to
have occurred (a)(i) for a publicly traded corporation, when there is a
change of effective control; (ii) for any other entity, in the event of any
circumstance where the voting interest of any party or group of parties
increases or decreases by more than one-third of the entire voting
interest; or (b) upon the distribution of over 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 85% of the
Rentable Area of the Building has been leased, or (ii) twenty-four 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 general
administrative office use as that of Tenant (and if not, whether the proposed
use would be an appropriate use for a Class A office building in the Denver
Technological Center, including without limitation whether the density of the
proposed use would result in an occupancy level of greater than five (5)
occupants per 0000 xxxxxx xxxx xx Xxxxxxxx Xxxx), 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) unless agreed in writing
by Landlord, 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, after deducting
therefrom all of the expenses incurred by Tenant in connection with such
assignment or sublease (whether such excess is payable by such assignee or
subtenant in monthly installments, in a lump sum, or otherwise).
If Tenant believes that Landlord has unlawfully or unreasonably withheld
its consent to a proposed assignment or sublease to which Landlord has agreed
not to unreasonably withhold its consent, Tenant shall not have any right to
recover damages or to terminate this Lease, but Tenant's sole remedy shall be to
seek a declaratory judgment that Landlord has unlawfully or
21
unreasonably withheld its consent or an order for specific performance or
mandatory injunction that Landlord give its consent.
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
excepted, and, subject to Tenant's duty to carry insurance as required by
this Lease, damage by fire or other casualty excepted. Except as provided
in Sections 5.A and 9 to the contrary, all alterations, improvements and
additions to the Premises, made or paid for by Landlord or Tenant, shall
without compensation to Tenant become Landlord's property upon
installation. Except as provided in Sections 5.A and 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
by the date on which the Term expires, or if Tenant's right to possession
terminates earlier, by the date which is five (5) business days after such
right to possession has terminated, 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.
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.
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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) 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, 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, so long as the same do not materially alter Tenant's
obligations under this Lease. 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.
21. OBLIGATIONS TO MORTGAGEES AND LESSORS.
A. Subordination. At Landlord's option, this Lease may be made subject
and subordinate to future ground or underlying leases of the Land and to
the lien of any mortgages or 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, so long as the same do not materially alter
Tenant's obligations under this Lease. 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
23
such attornment, so long as the same do not materially alter Tenant's
obligations under 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 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) except as provided in Section 6 of Exhibit A, to change the name
or street address of the Complex or the Building, with three (3)
months' prior 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 except as provided in Section 8 of Exhibit A,
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, without the prior
written permission of Landlord);
(3) to decorate or to make repairs, alterations, additions, or
improvements, whether structural or otherwise, in and about the
Building or Complex, or any part thereof, and for such purposes
to enter upon the Premises, and, during the continuance of any
of such work, to temporarily close doors, entryways, public
space and corridors in the Building and to interrupt or
temporarily suspend services or use of facilities, all without
affecting any of Tenant's obligations hereunder, so long as
Landlord has given Tenant reasonable prior notice of any such
actions in the Premises. Landlord shall take reasonable steps in
connection with such actions to minimize any disruption to
Tenant's business or its use of the Premises;
(4) to the extent permitted by law, to retain at all times, and to
use in appropriate instances, keys to all doors within and into
the Premises. If the security system in the Premises is one
which has been installed by and is maintained by Landlord,
Tenant agrees to purchase only from Landlord additional
duplicate keys as required. Unless approved in writing by
Landlord as part of either the initial security system in the
Premises or as part of an approved modification
24
thereto, Tenant agrees 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 due to the gross negligence or willful misconduct of
Landlord. 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 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 Landlord's
permission, not to be unreasonably withheld, 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; and
(8) to erect, use and maintain unexposed pipes, ducts, wiring and
conduits, and appurtenances thereto, in and through the
Premises.
23. RULES AND REGULATIONS. Tenant covenants and agrees to keep and observe
the rules and regulations attached to this Lease as Exhibit 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 reasonable 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. Tenant shall comply with such rules and regulations
provided, however, that such rules and regulations shall not contradict or
abrogate any right or privilege herein expressly granted to Tenant.
24. DEFAULT AND REMEDIES.
A. Events of Default. Each of the following shall constitute an "Event
of Default" under this Lease:
(1) Failure to Pay Rent or Other Amounts When Due. If Tenant fails more
than two times during any twelve-month period during the Term 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
25
Rent and other Rent and amounts owed from their respective original
due dates until paid.
(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 10 days 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 20
days after notice thereof by Landlord to Tenant, or, if such breach or
failure to comply cannot be reasonably cured within such 20-day
period, if Tenant shall not in good faith commence to cure such breach
or failure to comply within such 20-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
substantially occupy and use the Premises within 15 days after
commencement of the Term or shall leave the Premises unoccupied for 15
consecutive days or shall vacate and abandon the Premises.
(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
26
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 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
27
iii) all other money and damages owed by Tenant to Landlord.
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; 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 8% 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 Tenant establishes Landlord can reasonably
expect to recover by reletting the Premises for the remainder of
the Term, taking into consideration loss of rent while finding a
new tenant, 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 the rate
commonly called the discount rate for 90-day commercial paper in
effect at Norwest Bank Colorado, N.A. on the date of termination
of this Lease.
(3) Repossession and Reletting. Upon an Event of Default, Landlord may
immediately or at any time thereafter, and with or without legal
process, reenter and take possession of the Premises or any part
thereof, without demand or
28
notice 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.
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, 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 Landlord may consider
appropriate 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 reletting 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
29
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 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. Tenant irrevocably appoints its statutory agent for service of
process, as its agent to receive personal service of process in 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
30
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.
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 amount set forth in Section 1.A.(7) as security for
the prompt, full and faithful performance by Tenant of each and every
covenant, condition, and provision of Tenant under this Lease. 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 covenants, conditions, or
provisions hereunder, Landlord may use, apply or retain the whole or any
part of the Security Deposit for the payment of (i) any Rent or other sums
of money which Tenant may not have paid when due, (ii) any sum expended by
Landlord on Tenant's behalf in accordance with the 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. 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 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
31
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. The Tenant represents that the Tenant 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 Section 1.A.(7) and that
insofar as the Tenant knows, no other broker, real estate person, or finder
negotiated this Lease or is entitled to any commission or fee in connection
herewith. Tenant agrees to indemnify, defend and hold Landlord free and
harmless from and against all claims for broker's and real estate
commissions or finder's fees by any person claiming to have been retained
by, or furnished services to, Tenant in connection with this transaction,
other than the broker or brokers, if any, named in Section 1.A.(7). 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 18% per annum, compounded monthly, and
Tenant covenants to pay the same.
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.
32
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.
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. If Tenant fails to give Landlord specific written notice of its
objections within 30 days after receipt of any xxxx or invoice hereunder,
such xxxx or invoice shall be deemed true and correct and Tenant may not
thereafter question the validity of such xxxx or invoice or the underlying
information or computations used to determine the amount thereof.
N. Severability. If any 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
33
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 7:00 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 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 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
34
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, 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.
TENANT: LANDLORD:
TANNING TECHNOLOGY CORPORATION, DENVER XXXXX DEVELOPMENT, LLC, a
a Delaware Corporation Delaware limited liability company
---------------------------
By: /s/ Xxxx Tanning By: /s/ Xxx Xxxxx
--------------------------- ---------------------------
Print Name: Xxxx Tanning Xxx Xxxxx
---------------- ---------------------------
Its: VP of Administration & Treasurer Manager
--------------------------------- ---------------------------
ATTEST:
-----------------------
[ S E A L ]
35
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
Tanning Technology Corporation, 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. Pre-Occupancy Options. So long as no event of default under this Lease
has occurred and is continuing at the time that the option may be exercised
or at the time that any expansion of the Premises becomes applicable as
provided herein, Tenant shall have the following options (the "Pre-
Occupancy Options") to expand the initial Premises included within the
Lease, each of which shall be subject to the terms and conditions of this
Section 1. On or before January 15, 1999, Tenant may elect, by written
notice to Landlord, to expand the initial Premises by all, but not less
than all, of the remainder of Floor 11 of the Building (the "First Pre-
Occupancy Option"). In addition, if Tenant exercises the First Pre-
Occupancy Option, then on or before April 1, 1999, Tenant may also elect,
by written notice to Landlord, to expand the initial Premises by all, but
not less than all, of Floor 10 of the Building (the "Second Pre-Occupancy
Option"). The Second Pre-Occupancy Option may be exercised simultaneously
with the First Pre-Occupancy Option, but the Second Pre-Occupancy Option
shall expire and be deemed to be of no further force or effect if Tenant
has not exercised the First Pre-Occupancy Option on or before January 15,
1999. If Tenant exercises a Pre-Occupancy Option, then the parties shall
execute an amendment to the Lease, amending the definition of "Premises" to
include the space added by the exercise of the Pre-Occupancy Option, and
adjusting the original Rentable Area of the Premises, as defined in the
Lease, to appropriately include the Rentable Area of the space so added.
All other terms and conditions of the Lease shall apply to the Premises as
so expanded.
2. Options to Renew. Tenant at its option may renew the term of this Lease
for two (2) additional terms of five (5) years each (each, a "Renewal
Option"). Tenant shall give Landlord notice of its intent to renew by
written notice delivered to Landlord at least eighteen (18) months before
the expiration of the initial Term of this Lease, and if the first Renewal
Option has been properly exercised, Tenant shall give Landlord notice of
its intent to renew for the second renewal Term by written notice delivered
to Landlord at least eighteen (18) months before the expiration of the
first renewal Term of this Lease (each, an "Intent Notice"); provided that
at the time of each Intent Notice and at the commencement of both the first
and second renewal Terms, 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 since May 1, 1998, has occurred. Upon
the service of the Intent Notice, Landlord shall within thirty (30) days
thereafter furnish to Tenant a notice containing the new Annual Rent figure
for the applicable renewal Term. The portion of the new Annual Rent figure
not attributable to Initial Operating Expense Basic Cost payable during
each renewal Term shall be at ninety-five percent (95%) of the fair market
rental rate as determined for each renewal Term pursuant to Section 5
below, and 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. If Tenant does not agree with Landlord's
determination of the new Annual Rent figure, Tenant shall notify Landlord,
and the parties shall then proceed to negotiate in good faith concerning
the new Annual rent figure. If the parties have not agreed upon the new
Annual Rent amount by the date which is ninety (90) days from the date upon
which Landlord received Tenant's Intent Notice, then Tenant may notify
Landlord that it is withdrawing the Intent Notice, and the applicable
Renewal Option shall be deemed to be no longer available to Tenant or of
any force or effect. If Tenant fails to withdraw its Intent Notice by the
date which is ninety (90) days from the date upon which Landlord received
Tenant's Intent Notice, then Tenant shall be deemed to have exercised the
applicable Renewal Option, and subject to the conditions set forth in the
second sentence of this paragraph, this Lease shall be extended by
execution of an amendment to this Lease incorporating the renewal Term and
the new Annual Rent rate for the renewal Term, determined as provided
below. The first 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, and the
second renewal Term shall commence upon the expiration date of the first
renewal Term of this Lease and expire at midnight of the day prior to the
annual anniversary of such date five (5) years thereafter. Each such
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 each
renewal Term shall be at the rate initially proposed by Landlord as ninety-
five percent (95%) of the fair market rental rate as determined for each
renewal Term pursuant to Section 5 below, unless the parties have agreed
upon a different rate, in which case the Annual Rent not attributable to
Initial Operating Expense Basic Cost shall be at the rate agreed, 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, and
thereafter Tenant shall pay all Additional Rent applicable to the Expansion
Space, and Annual Rent shall be increased, adjusted, or augmented as
provided in and under this Lease, and (iii) Landlord shall provide a tenant
improvement allowance at the commencement of the first Renewal Term of
$10.00 per square foot of Rentable Area included within the Premises, and
at the commencement of the second Renewal Term of $12.50 per square foot of
Rentable Area included within the Premises. 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 Terms.
Any termination of this Lease, any assignment of this Lease and/or any
subletting of the Premises terminates the Renewal Options, except in the
case of an assignment or sublease by Tenant to an entity controlling,
controlled by, or under common control with Tenant, or to any firm or
company into or within which Tenant may be merged or consolidated, or which
purchases all or substantially all of the assets or stock of Tenant.
3. Expansion Options. So long as no event of default under this Lease has
occurred and is continuing at the time that the option may be exercised or
at the time that any expansion of the Premises becomes applicable as
provided herein, Tenant shall have the following two (2) options (the
"Expansion Options") to expand the Premises, each of which shall be subject
to the terms and conditions of this Section 3:
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A. The first Expansion Option shall be available to Tenant only if Tenant
has not exercised its Pre-Occupancy Option to add the balance of Floor 11
of the Building to the initial Premises. The first Expansion Option, if
exercised, will be applicable to all of the remainder of Floor 11 of the
Building which was not included within the initial Premises (the "First
Expansion Space"). If the first Expansion Option is exercised, the First
Expansion Space will be delivered by Landlord to Tenant for the purpose of
commencing its tenant finish work therein on a date to be designated by
Landlord, which shall be between the date which is three (3) years from the
Commencement Date and the date which is four (4) years from the
Commencement Date (the "First Occupancy Date").
B. The second Expansion Option shall be available to Tenant only (i) if
Tenant has not exercised its Pre-Occupancy Option to add Floor 10 of the
Building to the initial Premises, (ii) if Tenant has previously exercised
the first Expansion Option, and (iii) if Tenant has previously exercised
its first Renewal Option to extend the Term by an additional five (5)
years. The second Expansion Option, if exercised, will be applicable to all
of Floor 10 of the Building (the "Second Expansion Space"). If the second
Expansion Option is exercised, the Second Expansion Space will be delivered
by Landlord to Tenant for the purpose of commencing its tenant finish work
therein on a date to be designated by Landlord, which shall be between the
date which is five (5) years from the Commencement Date and the date which
is six (6) years from the Commencement Date (the "Second Occupancy Date").
C. If the first Expansion Option is available to Tenant as set forth above,
Landlord shall notify Tenant of the First Occupancy Date at least twelve
(12) months prior thereto, and if the second Expansion Option is available
to Tenant as set forth above, Landlord shall then notify Tenant of the
Second Occupancy Date at least twelve (12) months prior thereto (each, an
"Occupancy Notice"). Each Occupancy Notice shall also contain the fair
market rental rate, determined in accordance with Section 5 below, which
will be applicable to the Expansion Space.
D. In order to exercise either Expansion Option, Tenant shall be required
to give Landlord written notice of exercise (the "Exercise Notice") within
thirty (30) days after the date upon which Tenant receives the applicable
Occupancy Notice. If Tenant gives Landlord a timely Exercise Notice, the
applicable Expansion Space shall be added to the Premises as of the
Occupancy Date for such Expansion Option. If Tenant gives Landlord notice
that Tenant has elected not to exercise any Expansion Option or gives no
notice to Landlord within such 30-day period, Tenant shall have irrevocably
determined not to exercise such Expansion Option and such Expansion Option
shall have been relinquished.
E. Landlord shall make each Expansion Space available to Tenant for
purposes of making Tenant's improvements therein on the Occupancy Date for
such Expansion Space. Tenant's improvements in the Expansion Space shall be
constructed in accordance with and subject to all of the terms and
conditions of this Lease.
F. The portion of Annual Rent not attributable to Initial Operating Expense
Basic Cost payable with respect to any Expansion Space shall be the fair
market rental rate for such Expansion Space. 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, and thereafter Tenant shall pay all
Additional Rent
A-3
applicable to the Expansion Space, and Annual Rent shall be increased,
adjusted, or augmented as provided in and under this Lease. Rent shall
commence for any Expansion Space on the date which is ninety (90) days from
the applicable Occupancy Date.
G. All other terms of this Lease shall be applicable to the Expansion
Space and Tenant's occupancy thereof from the time that Tenant takes
occupancy thereof to construct its improvements in the Expansion Space.
4. Rights of First Offer.
A. If the Pre-Occupancy Offer expires on January 15, 1999, without
exercise by Tenant, then so long as Tenant is not in default in the
performance of any of its covenants under the Lease, Tenant is hereby
granted a right of first offer (the "Initial Right of First Offer") to
lease space on Floors 9, 10 or 11 of the Building (each an "Initial First
Offer Space"), during the initial leasing of the Building by Landlord, in
accordance with, and subject to, the following terms and conditions:
(1) On January 16, 1999, and every four (4) months thereafter until all
of Floors 9, 10 and 11 have been initially leased, Landlord shall
notify Tenant in writing of the Initial First Offer Space which is
then available for leasing (which as used throughout this Section
4, shall mean that Landlord is prepared to make a written proposal
to a bona fide prospective third party tenant to lease the space),
including the following:
i) The specific location of each Initial First Offer Space, the
approximate Rentable Area comprising each Initial First Offer
Space, and the configuration or configurations in which Landlord
is offering to lease such Initial First Offer Space; and
ii) The Annual Rent at which Landlord is offering each Initial First
Offer Space, and the portion of such Annual Rent which is
attributable to the Initial Operating Expense Basic Cost; and
iii) Such improvements, if any, as Landlord is willing to make to
each Initial First Offer Space, or such improvement allowance,
if any, as Landlord is willing to provide in connection with a
lease of such Initial First Offer Space.
(2) Within ten (10) business days after Tenant's receipt of Landlord's
notice, Tenant shall notify Landlord in writing of Tenant's election
concerning exercise of the Initial Right of First Offer. Tenant may
lease any space which is offered as a Initial First Offer Space by
Landlord, but Tenant shall not be entitled to lease less than all of
any Initial First Offer Space in the configuration in which it is
offered by Landlord. If Tenant exercises the Initial Right of First
Offer as to any Initial First Offer Space, then the leasing of such
Initial First Offer Space shall be on the same terms and conditions as
set forth in the Lease except as follows:
A-4
i) The Annual Rent, including the Initial Operating Expense Basic
Cost, to be paid for all the Initial First Offer Space shall be
at the rates offered by Landlord in its notice of availability.
Tenant shall also pay all Additional Rent and other Rent or
charges applicable to the Initial First Offer Space.
ii) Tenant's obligation to pay rent for the Initial First Offer Space
shall commence on the Commencement Date of the Lease, and shall
continue through the expiration or earlier termination of the
Term of the Lease.
iii) Landlord shall deliver and Tenant shall accept the Initial First
Offer Space in its then existing condition, on an "as is" basis,
and Tenant shall not be entitled to receive any contribution or
allowance from Landlord for improvement thereof, except as
provided above in Paragraph A(1)(iii).
iv) The original Rentable Area of the Premises, as defined in the
Lease, shall be adjusted appropriately to include the Rentable
Area of the Initial First Offer Space and Landlord and Tenant
shall execute an amendment to the Lease, incorporating the
Initial First Offer Space and reflecting the terms and provisions
set forth herein as applicable thereto.
(3) If Tenant does not exercise the Initial Right of First Offer as to a
Initial First Offer Space strictly in accordance with this Section,
the time provisions hereof being of the essence, the Initial Right of
First Offer shall cease to exist as to that Initial First Offer Space,
and Landlord shall be free to lease that Initial First Offer Space on
such terms as Landlord may determine and without any restrictions by
reason of the Lease or this Initial Right of First Offer, so long as
the Annual Rent received by Landlord is not less than ninety percent
(90%) of the rates at which such Initial First Offer Spaces were
offered by Landlord in its latest notice of availability.
B. After the initial leasing of Floors 9, 10 and 11 is complete, then so
long as Tenant is not in default in the performance of any of its covenants
under the Lease, Tenant is hereby granted an ongoing right of first offer
(the "Subsequent Right of First Offer", and the Initial Right of First
Offer and the Subsequent Right of First Offer are sometimes collectively
referred to as the "Rights of First Offer") to lease all, but not less than
all, of any space on Floors 9, 10 or 11 of the Building (each a "Subsequent
First Offer Space", and the Initial First Offer Space and Subsequent First
Offer Space are sometimes collectively referred to as the "First Offer
Space") which was not initially leased by Tenant, if the same becomes
available by reason of the expiration or earlier termination of any third-
party lease thereof which is in effect. Tenant's right to each respective
Subsequent First Offer Space is subject to the rights of any tenants under
any leases to a third party hereafter entered into, of any space in the
Building ("third party leases"), including any options to lease, rights of
expansion, rights of first refusal, or other options or rights of any
tenants ("third party rights") (but not including a right of first offer,
which
A-5
applies only to the above Subsequent First Offer Spaces, in a lease hereafter
executed) under any third party leases.
The Subsequent Right of First Offer shall be exercised in accordance with,
and subject to, the following terms and conditions:
(1) Landlord shall notify Tenant in writing of the Subsequent First Offer
Space if the same has or will become available, including the
following:
i) The specific location of the Subsequent First Offer Space and the
exact Rentable Area comprising the Subsequent First Offer Space;
and
ii) The Annual Rent at which Landlord is offering each Subsequent
First Offer Space, and the portion of such Annual Rent which is
attributable to the Initial Operating Expense Basic Cost; and
iii) The approximate date on which the Subsequent First Offer Space
will become available for leasing to Tenant; and
iv) A description of all third party leases and all third party
rights, if any, which affect the Subsequent First Offer Space;
and
v) Such improvements, if any, as Landlord is willing to make to the
Subsequent First Offer Space, or such improvement allowance, if
any, as Landlord is willing to provide in connection with a lease
of such Subsequent First Offer Space.
(2) Within ten (10) business days after Tenant's receipt of Landlord's
notice, Tenant shall notify Landlord in writing of Tenant's election
concerning exercise of the Subsequent Right of First Offer. If Tenant
exercises the Subsequent Right of First Offer, then the leasing of the
Subsequent First Offer Space shall be on the same terms and conditions
as set forth in the Lease, except as follows:
i) The Annual Rent, including the Initial Operating Expense Basic
Cost, to be paid for the Subsequent First Offer Space shall be at
the rate offered by Landlord in its notice of availability.
Tenant shall also pay all Additional Rent and other Rent or
charges applicable to the Subsequent First Offer Space.
ii) Tenant's obligation to pay rent for the Subsequent First Offer
Space shall commence on the date such space is made available to
Tenant, but not sooner than the date specified in Landlord's
notice unless Tenant occupies the space prior to such date, and
shall continue through the expiration or earlier termination
A-6
of the term of the Lease, except, however, as provided in
Paragraph B(2)(v) below.
iii) Landlord shall deliver and Tenant shall accept the Subsequent
First Offer Space in its then existing condition, on an "as is"
basis, and Tenant shall not be entitled to receive any
contribution or allowance from Landlord for improvement thereof,
except as provided above in Paragraph B(1)(v).
iv) The original Rentable Area of the Premises, as defined in the
Lease, shall be adjusted appropriately to include the Rentable
Area of the Subsequent First Offer Space and Landlord and Tenant
shall execute, at the request of either, an instrument
delineating and describing the Rentable Area, as so adjusted.
v) Tenant's right to occupy the Subsequent First Offer Space shall
continue to and end at the same time as its right to occupy the
original Premises, except in any instance in which the Subsequent
First Offer Space by reason of third-party leases or third-party
rights, must be made available to a third party, in which event
Tenant's right to occupy the Subsequent First Offer Space shall
end when necessary, in Landlord's determination, in order to make
it available to such third party.
(3) If Tenant does not exercise the Subsequent Right of First Offer as to
a Subsequent First Offer Space strictly in accordance with this
Paragraph, the time provisions thereof being of the essence, the
Subsequent Right of First Offer shall cease to exist as to that
Subsequent First Offer Space and Landlord shall be free to lease that
Subsequent First Offer Space on such terms as Landlord may determine
and without any restrictions by reason of the Lease or this Subsequent
Right of First Offer, so long as the Annual Rent received by Landlord
is not less than ninety percent (90%) of the rates at which such
Subsequent First Offer Space was offered by Landlord in its notice of
availability.
C. Tenant may not assign its Rights of First Offer, or any rights
thereunder, to any subtenant of the original Premises, or to any assignee
of the Lease, or to any other person, except in the case of an assignment
or sublease by Tenant to an entity controlling, controlled by, or under
common control with Tenant, or to any firm or company into or within which
Tenant may be merged or consolidated, or which purchases all or
substantially all of the assets or stock of Tenant; provided, however, that
if the Tenant has exercised a Right of First Offer and has leased a First
Offer Space, then thereafter Tenant's right to sublease that First Offer
Space, or to assign its rights under the Lease to that First Offer Space,
shall be determined in combination with the original Premises under the
Lease. Any Right of First Offer, which has not theretofore both been
exercised by Tenant and under which Tenant has leased the First Offer
Space, shall expire upon any assignment of the Lease.
A-7
D. Upon inclusion, under the Lease, of a First Offer Space with the
original Premises, all references in the Lease to the "Premises" shall be
deemed to include that First Offer Space.
5. Definition of Fair Market Rental Rate. The "fair market rental rate," as
such term is used in this Lease, 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 to 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 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 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.
6. Additional Parking. If Tenant wishes to increase its right to take and
obligation to pay for additional parking spaces in connection with its
exercise of a Pre-Occupancy Option, an Expansion Option, or a Right of
First Offer, it must so elect in its notice to Landlord of its exercise of
Option or Right. Tenant's right to take and obligation to pay for such
additional parking spaces shall be as set out in Exhibit F to the Lease,
except as set out below in this Paragraph 6. All of such additional
parking spaces shall be on an unassigned basis, and the monthly rent due
therefore shall be the then-current rate charged by the operator of the
garage or parking lot, with no maximum guaranteed rate. The location of
such parking spaces in the garage or surface lot shall be designated in
Landlord's sole discretion, and the number of such parking spaces to which
Tenant shall be entitled shall be based on Landlord's parking formula in
effect on the date of Tenant's above notice to Landlord.
7. Building Name. Until the exercise of a Pre-Occupancy Option by Tenant
which results in the initial Premises included within the Lease containing
at least 75,000 square feet of Rentable Area, Landlord may grant the right
to initially name the Building to any other tenant in the Building which
leases more space than Tenant within the Building. In the event that
Tenant exercises a Pre-Occupancy Option, so that the initial Premises
included within the Lease contain at least 75,000 square feet of Rentable
Area, and if at that time Landlord has not yet granted to any other tenant
the right to initially name the Building, then subject to the provisions of
the next sentence, Tenant shall have the right to initially name the
Building, subject to Landlord's reasonable approval of the name selected by
Tenant. However, at any time that any other tenant in the Building leases
at least 25,000 square feet of Rentable Area in the Building more than the
number of square feet of Rentable Area then included within the Premises,
Landlord shall have the right to grant to such other tenant the right to
name the Building, and the right granted to Tenant in this paragraph to
name the Building shall then cease to exist.
8. Signage. Tenant shall not install, place, inscribe, paint or otherwise
attach and shall not permit any sign, advertisement, notice, marquee or
awning on any part of the outside of the Premises (including any portion of
the Premises fronting on any interior corridor or lobby)
A-8
or on any part of the Building (including the outside walls and the roof),
without the prior written consent of Landlord in each instance; provided,
however, that Tenant shall have the right, at its sole cost, to install (i)
signs on the inside of the Premises so long as such signage is not visible
from the common corridors or other common areas, and (ii) a single sign
identifying Tenant outside of the Building, at a location and in a size and
design approved by Landlord. Any permitted sign shall also comply with the
requirements of the Denver Technological Center Architectural Control
Committee and of any governmental or quasi-governmental authority having
jurisdiction over the Building, and Tenant is solely responsible for such
compliance. Tenant shall, at its own expense, maintain in first-class
condition all permitted signs and shall, on the expiration or termination
of this Lease, and at its own expense, remove all such permitted signs and
repair any damage caused by such removal. Landlord shall have the right to
remove all nonpermitted signs without notice to Tenant and at the expense
of Tenant.
9. Satellite Dish. Provided the Lease shall be in full force and effect
and no Event of Default exists thereunder, Tenant may, at its sole cost and
expense, install and operate a satellite dish or microwave antenna no
larger than six feet (6') in diameter (referred to herein as the "satellite
dish") and surrounding screening on the roof of the Building, subject to
Landlord's approval of the location of the dish and the design of the
screening surrounding the dish. The installation of the satellite dish
shall be subject to the following:
(1) Tenant shall, at all times, and at its sole cost and expense,
comply with all applicable governmental and quasi-governmental
regulations, and obtain and maintain any and all required
governmental and quasi-governmental permits, licenses,
authorizations and approvals, including without limitation any
necessary approvals of the Denver Technological Center
Architectural Control Committee;
(2) Tenant shall maintain adequate liability insurance covering the
installation and operation of the satellite dish in which Landlord
is named as an additional insured, and proof of which shall be
provided to Landlord prior to installation; and
(3) Tenant shall, at its sole cost and expense, maintain the satellite
dish in good working order and do so in a manner such that the
operation of the satellite dish does not cause any interference
with any telecommunications, mechanical or other system located in
or servicing the Building, whether such system belongs to and is
utilized by Landlord or any other tenant in the Building.
B. Tenant covenants and agrees that the installation, operation and removal
of the satellite dish 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 satellite
dish.
C. At the expiration or sooner termination of the Lease, or upon
termination of the operation of the satellite dish, or revocation of a
required license issued, Tenant shall, at its sole cost and expense, remove
the satellite dish from the Building and repair the installation area to
the same condition as existed prior to such installation. If Tenant does
not remove the satellite dish and repair such area when so required, Tenant
hereby authorizes Landlord to remove and
A-9
dispose of the satellite dish and repair the installation area and to
charge Tenant for all costs and expenses incurred in so doing.
X-00
Xxxxxxx X
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,
363.54 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;
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 I-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. 92-
0071136 AND A PIN AND CAP PLS 23899, BEARING NORTH 64 DEGREES 49 MINUTES 20
SECONDS WEST, 766.84 FEET.
X-0
Xxxxxxx X
0000 XXXXX XXXXXXXX
PLAN DELINEATING THE PREMISES
[Diagram of floorplan]
Xxxxxxx X
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: Xx Xxxxxxx
Landlord's Representative: Xxxxx Xxxxx
Submission Date: To be designated by Landlord, as provided in
paragraph 6.A below.
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: $0.20 per square foot of Rentable Area for
space planning costs ("Space Planning Allowance"), and $30.00 per square foot of
Rentable Area for design and construction costs ("Design and Construction
Allowance").
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. 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, Tenant must use the Building Standard items
prescribed by Landlord for lights, ceilings, window coverings, and any
other finish item which is visible from the exterior of the Building, in
order to assure the consistent quality and appearance of the Building.
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 Space Planning
Allowance for the costs of preparing the Tenant Space Plan, and as much as
the Design and Construction Allowance for the costs of preparing the Tenant
Working Drawings, and for the 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) (collectively, "Tenant Work"), less an amount
payable to Landlord for its coordination and review of the Tenant Work
equal to five percent (5%) of the cost of the Tenant Work; provided,
however, that if the Tenant Work is performed in connection with the
completion of the Base Building Shell such amount shall not be charged by
Landlord. 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 those portions of the first payments of Annual Rent which
are due under the Lease which are not attributable to the Initial Operating
Expense Basic Cost.
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, unless waived as provided above, the cost of Landlord's
overhead for coordination and administration at the rate of five percent
(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. Is not approved by the holder of any mortgage or deed of trust
encumbering the Building at the time the work is proposed;
C. Would not be approved by a prudent owner of property similar to the
Building (i.e., a Class A office building in the Denver Technological Center);
D. Violates any agreement which affects the Building or binds Landlord;
E. Landlord reasonably believes will increase the cost of operation or
maintenance of any of the systems of the Building;
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F. Landlord reasonably believes will reduce the market value of the
Premises or the Building at the end of the Term;
G. Does not conform to applicable building code or is not approved by any
governmental authority with jurisdiction over the Premises; or
H. 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 which is not compatible with the finish level
of a Class A office building.
6. Schedule of Tenant Improvement Activities
-----------------------------------------
A. Landlord shall provide written notice to Tenant of the date on which
the Tenant Information (as defined in the next sentence) must be submitted
to Landlord (the "Submission Date"), at least sixty (60) days prior to the
Submission Date. On or before the Submission Date, Tenant will cooperate
with and submit 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").
Landlord will promptly prepare a preliminary estimate of the cost of
preparing the Tenant's Space Plan (the "Tenant's Estimated Space Planning
Cost"), based on the Tenant Information. If the Tenant's Estimated Space
Planning Cost is more than the Space Planning Allowance, Landlord will so
notify Tenant in writing and Tenant will either:
(1) Agree in writing to pay the amount by which the Tenant's Space
Planning Cost exceeds the Space Planning Allowance as though that
amount were Tenant Extra Work subject to paragraph 7, or
(2) Revise the Tenant Information in order to assure that the Tenant's
Estimated Space Planning Cost is either (A) no more than the Space
Planning Allowance or (B) in excess of the Space Planning Allowance
by an amount which Tenant agrees to pay pursuant to clause (1)
immediately above.
Each day from the date which is five (5) days following Tenant's receipt of
the Tenant's Estimated Space Planning Cost 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 in either
clause (1) or clause (2) immediately above, the Tenant's Estimated Space
Planning Cost will be deemed approved. If the Tenant's Estimated Space Planning
Cost is less than the Space Planning Allowance, the Tenant's Estimated Space
Planning Cost will be deemed approved without notice to Tenant.
B. After approval of the Tenant's Estimated Space Planning Cost,
Landlord will cause to be prepared and delivered to Tenant the proposed
Tenant Space Plan. Within five (5) days after its receipt of the proposed
Tenant Space Plan, Tenant will give Landlord written notice whether or not
Tenant approves the proposed Tenant Space Plan. 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
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Tenant's notice to be a day of delay by Tenant. If Tenant's notice objects
to the proposed Tenant Space Plan, the notice will set forth how the
proposed Tenant Space Plan is inconsistent with the Tenant Information and
how the Proposed Tenant Space Plan must be changed in order to overcome
Tenant's objections. Landlord will submit a revised Tenant Space Plan to
Tenant.
The revised Tenant Space Plan, and any revisions to it, will be treated
as though they were the first proposed Tenant Space Plan prepared pursuant to
this paragraph. If the proposed Tenant Space Plan, or any revision to it, is not
inconsistent with the Tenant Information, then each day following Landlord's
receipt of Tenant's objections until Landlord's receipt of Tenant's approval of
a Tenant Space Plan will be a day of Tenant's delay.
C. After approval of the Tenant Space Plan, Landlord will promptly
prepare a preliminary estimate of the cost of Tenant's improvements,
including without limitation permits, taxes, and all architectural,
engineering and construction contractor's fees associated therewith (the
"Tenant's Estimated Construction Cost"), as set forth in the Tenant Space
Plan. If the Tenant's Estimated Construction Cost is more than the
Construction Allowance, Landlord will so notify Tenant in writing and
Tenant will either:
(1) Agree in writing to pay the amount by which the Tenant's Estimated
Construction Cost exceeds the Construction Allowance as though that
amount were Tenant Extra Work subject to paragraph 7, or
(2) Revise the Tenant Space Plan in order to assure that the Tenant's
Estimated Construction Cost is either (A) no more than the
Construction Allowance or (B) in excess of the Construction Allowance
by an amount which Tenant agrees to pay pursuant to clause (1)
immediately above.
Each day from the date which is five (5) days following Tenant's receipt of
the Tenant's Estimated Construction Cost 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 in either
clause (1) or clause (2) immediately above, the Tenant's Estimated Construction
Cost will be deemed approved. If the Tenant's Estimated Construction Cost is
less than the Construction Allowance, the Tenant's Estimated Construction Cost
will be deemed approved without notice to Tenant.
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"), an estimated construction schedule
(the "Construction Schedule"), and a cost proposal (the "Tenant Cost
Proposal") for 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 Construction Allowance and any amount in excess of the Construction
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 Construction 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
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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 from the date which is five (5) days 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.
E. All work will be performed by one or more contractors selected and
engaged by Landlord, after a competitive bidding process in which Landlord
shall obtain bids from at least three (3) qualified contractors. Tenant
will have the right to designate a subcontractor for each component of work
which is to be performed 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, subject
to Tenant's right to withhold retainage of ten percent with respect to all
Tenant Extra Work until completion of the items shown on the punch-list
described in Paragraph 10.A below, following which completion final payment
of the retainage amounts shall be promptly made by Tenant.
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, unless waived as provided above, the cost of
Landlord's overhead at the rate of five percent (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.
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 August
1, 1999. Subject to the provisions of Section 3.A of the Lease concerning
abatement, 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
D-5
Rent shall be delayed on a day-to-day 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;
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, Tenant will conduct a walk-through
inspection of the Premises with Landlord and prepare a punch-list of items
needing additional work by Landlord. Other than the items specified in the
punch-list 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.
B. A "latent defect" is a defect in the condition of the Premises caused
by Landlord's failure or the failure of Landlord's contractor to construct
the improvements in a good
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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 the period of time
covered by the contractor's warranty under the construction contract (which
shall be no less than 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.
11. Adjustments Upon Completion. As soon as practicable, upon
---------------------------
completion of the Tenant's Space Plan, 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 obligations
--------
under Paragraph 7 of 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.
X-0
Xxxxxxx X
0000 XXXXX XXXXXXXX
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 ten (10) lines/names
and its 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, except for supplemental air conditioning
for its computer room facilities, as shall have been approved by Landlord in
connection with its approval of Tenant's Space Plan and Tenant's Working
Drawings.
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. Except
as permitted in Section 22 (4) of the Lease, Tenant shall not make, or cause to
be made, any such keys and shall order all such keys solely from Landlord and
shall pay Landlord for any additional such keys over and above the two sets of
keys furnished by Landlord.
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 occasioned by the gross negligence or willful misconduct of Landlord.
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.
X-0
00. All freight must be moved into, within and out of the Building and the
Complex under the supervision of Landlord and according to such regulations as
may be posted or distributed by Landlord from time to time. All moving of
furniture or equipment into or out of the Building by Tenant shall be done at
such time and in such manner as directed by Landlord or its agent. In no cases
shall items of freight, furniture, fixtures or equipment be moved into or out of
the Building or in any elevator during such hours as are normally considered
rush hours to an office building, i.e., 7:30-9:00 a.m., 11:00 a.m. - 1:00 p.m.,
and 4:00-6:00 p.m.
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 properly
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 known or apparent
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
E-3
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:
(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
(I) 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.
X-0
Xxxxxxx X
0000 XXXXX XXXXXXXX
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, 200 parking spaces in the Complex for the
parking of vehicles. Of those 200 spaces, 150 shall be located in the parking
garage of the Complex. Of the spaces in the parking garage, up to 30 may be
assigned parking spaces, and the remainder shall be unassigned parking spaces.
Tenant shall designate, in a written notice to Landlord delivered at least six
months prior to the Commencement Date, how many of the spaces located in the
parking garage are initially to be assigned, based on the parameters of the
preceding sentence. Subject to the provisions of the next sentence, all of the
remaining 50 spaces shall be unassigned parking spaces on the surface parking
lot. Tenant shall owe no monthly rent for any of the parking spaces provided
hereunder for the first eighteen months of the Term. Beginning with the
nineteenth (19th) month of the Term, Tenant's initial obligation to pay monthly
rent shall be $65.00 per month for each assigned space in the parking garage and
$35.00 per month for each unassigned space in the parking garage; provided,
however, that such amounts 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, up to a maximum during the initial Term of the Lease of $75.00 per month
for each assigned space in the parking garage and $45.00 per month for each
unassigned space in the parking garage. During the first five (5) years of the
Term, Tenant shall owe no monthly rent for any of the unassigned spaces on the
surface parking lot. After the first five (5) years of the Term, the monthly
rent for surface parking spaces 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, up to a maximum during the initial Term of the Lease of $15.00 per
month for each unassigned space in the surface parking lot. Monthly rent for
all parking spaces during any renewal Term of the Lease shall be the then-
current rates charged from time to time by operator of the garage and surface
parking lot. 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 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.
Landlord agrees that it shall construct, in connection with the initial
construction of the Building, a parking garage and surface parking lot
sufficient to furnish to Tenant the number of spaces provided above. If at any
time during the Term of this Lease after such initial construction, Landlord
fails or is unable to provide all or any portion of the above-described parking
spaces to Tenant, or Tenant is not permitted to utilize all or any portion of
such parking spaces, for reasons related to (i) construction of additional
buildings and/or related parking or other improvements at the Complex, or (ii)
reconstruction, refurbishing, or renovation of the Building, the parking garage
or any other improvements at the Complex for reasons unrelated to a
casualty thereto or condemnation thereof (each, "Landlord Controlled
Construction"), then Landlord agrees to use reasonable and diligent efforts to
replace the parking spaces which Tenant is not able to utilize, by one of the
following methods:
A. Landlord may reserve the necessary portion of those parking spaces
which are unaffected by such Landlord Controlled Construction for the use of
Tenant.
B. Landlord may 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; provided, however, that if such relocation is made
necessary by virtue of Landlord Controlled Construction, then Tenant shall
pay monthly rent for such spaces equal to the then current rate for surface
parking spaces due from Tenant hereunder, rather than the rate then due
from Tenant for garage spaces, for so long as the relocation is necessary
due to Landlord Controlled Construction.
C. Landlord may relocate any of all of the parking spaces initially provided
in the parking garage onto a surface parking lot; provided, however, that
if such relocation is made necessary by virtue of Landlord Controlled
Construction, then Tenant shall pay monthly rent for such spaces equal to
the then current rate for surface parking spaces due from Tenant hereunder,
rather than the rate then due from Tenant for garage spaces, for so long as
the relocation is necessary due to Landlord Controlled Construction.
D. Landlord may arrange for alternate parking spaces located no more than
three (3) miles away from the Building, in which case Landlord shall
provide at its expense a shuttle service to transport the employees
utilizing Tenant's spaces from those alternate parking spaces to the
Building.
E. Landlord may arrange for alternate parking spaces by any other method
which is mutually agreeable to Landlord and Tenant at the time.
If, in connection with such Landlord Controlled Construction, (i) Landlord
fails to provide such alternate parking spaces, so that Tenant is prevented from
utilizing more than 15% of its parking spaces for a period in excess of three
(3) months, or (ii) Landlord replaces garage parking spaces with surface parking
spaces as described in subparagraph C above and such spaces are not once again
located in a parking garage at the Complex by the date which is one (1) year
from the date such spaces were initially relocated, or (iii) Landlord replaces
any parking space with off-site parking and shuttle service as described in
subparagraph D above and such parking spaces are not once again located on the
Complex by the date which is one (1) year from the date such spaces were
initially relocated, then in any of such events, Landlord shall be in default
hereunder, and Tenant shall have the right to provide Landlord with a written
notice of such default. If Landlord has not cured such default by the date
which is thirty (30) days from the date upon which such notice is received, then
Tenant shall have the right to terminate this Lease, by written notice to
Landlord, in addition to any other rights or remedies that Tenant may have for
the breach of any covenants or conditions as may exist otherwise under this
Lease.
If at any time during the Term of this Lease, Landlord fails or is unable to
provide all or any portion of the above-described parking spaces to Tenant, or
Tenant is not permitted to utilize all or any portion of such parking spaces,
for any reason other than (i) Landlord Controlled
F-2
Construction, or (ii) other circumstances under Landlord's reasonable control,
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 for the reasons described in the
preceding sentence, 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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Xxxxxxx X
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:
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 maybe required as part of the tenant work.
2. The Building envelope will consist of thermally insulated vision and
spandrel glass units and architectural precast concrete or granite. The
perimeter wall will be insulated and fire-safed at all floor slab edge
conditions.
3. The window treatment will be surface mounted, perforated 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.
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 will provide space near the point of service to the
Building with open sleeves on each floor in the telephone closet for the
installation of individual tenant fiber optic equipment and cable risers
as part of the tenant improvements.
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, 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 and secondary ductwork systems constructed
and sealed in accordance with SMACNA Standards (1995). Perimeter slot
type diffusers with downblow center sections, integral returns and flow
sensors will distribute air to the exterior zones. Interior zone
secondary ductwork will be provided for tenant air distribution duct
connectors. All tenant air interior distribution ductwork is by the
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. Internal acoustical lining in the
downstream, secondary ductwork will be provided.
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
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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 the tenant's
expense. Electrical transformers, panels and distribution will be
provided in the core area to serve both the low and high voltage needs
of the base
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Building and tenant. Dry type transformers will serve the low voltage
power distribution system. All on floor distribution shall be part of
the tenant improvements.
20. The Building requires all electrical wiring for core & shell and
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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 will provide a code complying, fully addressable fire
alarm system for the common areas only. Each tenant will need to add
life safety devices as required to comply with local codes. Additional
devices will be stocked for installation as part of the tenant
improvements.
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, return air 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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