LEASE
This Lease, dated for reference purposes only as of February 23, 1996, is
entered into by and between Transamerica Occidental Life Insurance Company,
a California corporation ("Landlord"), and ACI Systems Inc., a Colorado
corporation ("Tenant"), in consideration of the rents and covenants stated
below. Landlord leases to Tenant and Tenant leases from Landlord the Premises
described below upon the following terms and conditions:
1.1 FUNDAMENTAL LEASE PROVISIONS:
A. Demised Premises: Landlord leases to Tenant the premises located at
and commonly known as 14 Inverness Drive East, Building F, Units 112, 116 and
120, consisting of approximately 5,900 s.f. (the "Premises").
B. Term: The term of the Lease is sixty-one (61) months, beginning May
1, 1996 (the "Commencement Date") and ending May 31, 2001 (the "Expiration
Date"). Tenant may take occupancy of the Premises on May 1, 1996 (the "Occupancy
Date").
C. Minimum Monthly Rent:
(i) Initial Minimum Monthly Rent: The minimum monthly rent
payable for each of the first thirty-six (36) months of the Lease term shall be
Four Thousand Four Hundred Twenty-Five and no/100ths Dollars ($4,425.00). The
minimum monthly rent shall be increased pursuant to the provisions of either
subparagraph C(ii) or subparagraph C(iii) below.
(ii) Fixed Minimum Monthly Rent Increases: The Initial minimum
monthly rent shall be increased to the amount(s) stated below and shall be
payable for each of the months during the periods stated below:
MINIMUM
MONTHLY RENT PERIOD
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$4,547.92 May 1, 1999 - April 30, 2000
$4,670.84 May 1, 2000 - May 31, 2001
D. Additional Rent: Tenant shall also pay to Landlord its proportionate
share of the amount of increases in taxes and the amount of increases in
insurance costs and common area maintenance costs for the Premises in excess of
the respective taxes and insurance costs for the Base Year. The "Base Year" for
purposes of determining increases in taxes is 1996 and for purposes of
determining increases in insurance costs is calendar year 1996. Tenant's
proportionate share of increases in taxes is 2.74% and Tenant's proportionate
share of increases in insurance costs is 2.74%.
E. Prepaid Rent: Tenant shall pay Landlord Four Thousand Four Hundred
Twenty-Five and no/100ths Dollars ($4,425.00) at the same time Tenant executes
and delivers this Lease to Landlord as prepaid rent which shall be applied by
Landlord to the payment of rent as it becomes due under this Lease.
F. Security Deposit: Tenant shall deposit Four Thousand Four Hundred
Thirty and no/100ths Dollars ($4,430.00) at the same time Tenant executes and
delivers this Lease to Landlord as security (the "security deposit") subject to
the provisions of Paragraph 7.1.
G. Use: Tenant shall use and occupy the Premises only for the following
specifically stated purpose: office and warehouse for distribution and
representation of high technology products.
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H. Address for Notices: Landlord's address for notices is Xxxxxx
Management Group, 00 Xxxxxxxxx Xxxxx Xxxx, Xxxxxxxx X, Xxxxx 000, Xxxxxxxxx, XX
00000. Tenant's address for notices is 00 Xxxxxxxxx Xxxxx Xxxx, Xxxxxxxx X, Xxxx
000, Xxxxxxxxx, XX 00000.
I. Tenant's Public Liability Insurance: Tenant shall obtain
comprehensive public liability insurance with limits of not less than One
Million and no/100ths Dollars ($1,000,000.00) for injury or death of any one or
more persons and One Million and no/100ths Dollars ($1,000,000.00) for property
damage.
K. Broker: The following person(s) have performed services for Tenant or
Landlord in connection with this Lease and no other persons shall have any claim
for any compensation in connection herewith: Xxxxxxx X. Xxxxxx and Xxxxxxx X.
Xxxxxxxxx of Xxxxxx and Company, Colorado Real Estate Brokers License # 07612.
2.1 THE PREMISES: The Premises described in Paragraph 1.1, subparagraph A
is shown as the cross-hatched space within the building complex shown on the
attached EXHIBIT A. The building complex (the "Complex") consists of, among
other things, the land, the physical improvements, landscaping, parking
areas, sidewalks and the common area shown on the general site plan which is
attached as EXHIBIT A. Tenant agrees that Landlord, in Landlord's sole
discretion may change the size, shape, location, number and extent of the
improvements shown on EXHIBIT A and may eliminate or add any improvements to
any portion of the Complex.
2.2 LANDLORD'S RESERVED RIGHTS FOR THE COMPLEX: Landlord reserves the absolute
rights to itself to (a) use the roof, exterior walls and the area beneath the
Premises and (b) install, use, maintain and replace equipment, machinery, pipes,
conduits and wiring located within the Premises which serve other parts of the
Complex in a manner and in locations which do not unreasonably interfere with
Tenant's use of the Premises.
2.3 COMMON AREAS OF THE COMPLEX:
A. Nonexclusive Right to Use Common Areas of the Complex: Landlord
shall make available during the term of this Lease such portions of the
Complex as Landlord in its sole, conclusive and exclusive judgment designates
from time to time for use by all tenants of the Complex as common area,
Tenant shall have a nonexclusive right during the term of this Lease to use
the common area of the Complex for itself, its employees, agents, customers,
servants and invitees solely for those purposes which Landlord in its sole,
conclusive and exclusive judgment designates as proper common area use.
B. Common Area Defined: The term "common area" means the portions of the
Complex which from time to time are designated and/or improved by Landlord for
the common use by more than one tenant of the Complex including, without
limitation, the following: the land and facilities used as parking areas; access
and perimeter roads; truck passageways (which may be in whole or in part
subsurface); service corridors and stairways providing access to and from
various premises within the Complex; landscaped areas; exterior walks,
stairways, elevators and/or ramps; interior corridors, elevators and/or stairs;
and code required public facilities, but excluding any portion thereof which may
be designated by Landlord for non-common use.
3.1 TERM
A. Delivery of Possession Delayed: If Landlord is unable to deliver
possession of the Premises to Tenant on the Commencement Date specified in
Paragraph 1.1, subparagraph B, Landlord shall not be liable for any damages
resulting from such delayed possession and this Lease shall not become void or
voidable because of such event except as provided below. If delivery of
possession of the Premises is delayed beyond the Commencement Date stated above,
the term of the Lease will begin on the date Landlord tenders possession of the
Premises to Tenant and the Expiration Date specified in Paragraph 1.1,
subparagraph B shall be extended to the last day of the calendar month being the
number of full calendar months subsequent to the delayed commencement date equal
to the number of months specified in Paragraph 1.1, subparagraph B. Any such
delayed Commencement Date shall be stated in writing which must be signed by
both parties and which written statement shall constitute an amendment to this
Lease. If Landlord is unable to tender possession of the Premises to Tenant
within four (4) months after the Commencement Date stated above, then either
party shall have the right to terminate this Lease without liability to the
other. Such right must be exercised upon at least fifteen (15) days prior
written notice to the other party and the Lease shall be deemed terminated
effective on the 15th day following delivery of such notice unless Landlord
tenders possession of the Premises to Tenant during such interim period in which
case the notice shall be deemed null and void. The six-month period stated above
shall be extended by the number of days of delay caused by or attributable to
Tenant or resulting from a cause force majeure of the type specified in
Paragraph 27.1, subparagraph D of this Lease.
B. Early Possession: If the Occupancy Date specified in Paragraph 1.1,
subparagraph B is earlier than the Commencement Date, then all of the terms,
covenants and conditions of this Lease shall apply during any period of Tenant's
possession prior to the Commencement Date except that Tenant shall not be
required to pay rent for the use and occupancy of the Premises for any period of
possession prior to the Commencement Date and Landlord and Tenant agree that
Tenant may take possession of the Premises on such earlier Occupancy Date.
4.1 RENT: Tenant shall pay as rent for the use and occupancy of the Premises
the sums stated below and stated in Paragraph 1.1, subparagraph C and
subparagraph D at the times and in the manner specified below.
A. Rent Defined: The term "rent" shall mean any sum required to be paid
by Tenant to Landlord under this Lease including, without limitation, the
specified minimum monthly rent, adjustments to rent, fixed rent increases,
impounds or reimbursements to Landlord relating to taxes, insurance and/or
common area maintenance costs. If any, attorneys' fees, interest on any past due
amounts, late fees (regardless of how such sums are designated) and any sums due
to Landlord Pursuant to Paragraph 16.1, subparagraph D hereof.
B. Time for Payment: Unless the time for payment is otherwise specified,
all sums required to be paid by Tenant under this Lease shall be paid to
Landlord, without any deductions or set-offs of any kind whatsoever, in advance
on the first day of each calendar month at the address specified in Paragraph
1.1, subparagraph H of this Lease. The requirement to pay rent at such times
shall NOT be conditioned upon the tender of a statement to Tenant for any fixed
or adjusted amounts previously specified by Landlord.
C. Proration of Rental Amounts for Partial Months: if the Commencement
Date of the term of the Lease occurs on a day other
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than the first day of the month, then the minimum monthly rent and/or any
impounds or other regular monthly payments for the first partial month of the
Lease term shall be prorated on the basis of a thirty-day month. If the term of
the Lease ends on a date other than the last day of the month, then the rent
for such month shall be prorated on the basis of a thirty-day month.
4.2 PAYMENT OF TAXES AND INSURANCE COSTS AS ADDITIONAL RENT: Tenant shall pay
the costs of taxes and insurance to Landlord as additional rent for the use and
occupancy of the Premises at the times, to the extent and in the manner
specified below:
A. Tenant to Pay Proportionate Share of Increases in Taxes and Insurance
Costs Over the Base Year. Tenant shall reimburse Landlord Tenant's proportionate
share of the amount of increases in taxes and the amount of increases in
insurance costs for the Premises in the manner and at the times stated below it,
for any calendar year during the Lease term after the Base Year described in
Paragraph 1.1, subparagraph D, the respective taxes and insurance costs are
greater than the amount of taxes and insurance costs for the Base Year. The
terms "taxes" and "insurance costs" are defined in Paragraph 4.2, subparagraph B
below. Landlord shall obtain the insurance coverages of the types stated in
Paragraph 4.2, subparagraph B below. Tenant's proportionate share of increases
in taxes described as a percentage in Paragraph 1.1, subparagraph D equals the
ratio which the area of the Premises bears to the total area of the building(s)
located within the Complex which are included in the same tax parcel within
which the Premises is located for which tax parcel a separate assessment is made
and tax xxxx is issued by the applicable taxing authority. Tenant's
proportionate share of increases in insurance costs described as a percentage in
Paragraph 1.1, subparagraph D equals the ratio which the area of the Premises
bears to the total area of the building(s) located within the Complex which are
included in the calculation of insurance costs for the Complex.
B. Taxes and Insurance Costs Defined:
(i) Taxes: "Taxes" shall mean any form of tax, assessment, excise,
license fee, business tax, rental tax, improvement bond, levy, lien, charge or
penalty (whether general, special, ordinary or extraordinary, foreseen or
unforeseen) imposed or assessed by any authority having the direct or indirect
power to tax (including any city, county, state or federal government, or any
school, agricultural, lighting, drainage, sewage, irrigation or other
improvement or other special district) against or in respect of or which may be
or become a lien or charge upon (a) any legal or equitable interest of Landlord
in the Premises or in the real property of which the Premises is a part, or (b)
Landlord's right to or receipt of rent or other income from the Premises or by
Landlord's business of leasing the Premises. "Taxes" shall also mean any tax
imposed in substitution, partially or totally, of or for any tax previously
included in the definition of taxes stated in the first sentence of this
subparagraph B(i). "Taxes" shall also mean any tax imposed for any service or
right which was not charged to property owners prior to June 1, 1988 or, if
previously charged, for any increase for such service occurring since June 1,
1988. Taxes shall also mean any tax imposed or added to real property taxes as a
result of reassessment upon a transfer or lease of all or part of Landlord's
interest in the Premises or the real property of which the Premises is a part,
Landlord and Tenant intend that all taxes of any kind or character relating to
or concerning the Premises or any part thereof, including, without limitation, a
reassessment of the value thereof, shall be included within the term "Taxes."
"Taxes" shall not include Landlord's personal, or corporate income, franchise,
inheritance or estate taxes.
(ii) Insurance Costs: Landlord shall obtain and/or maintain all of
the insurance coverage of the types described as Landlord's Property Insurance,
Landlord's Rent Insurance and Landlord's Liability Insurance. "Insurance costs"
shall mean all costs incurred by Landlord for policies of insurance, brokerage
fees, loss control costs and self-insured losses covering the following:
(a) the real property of which the Premises is a part, in an
amount not less than 100% of the replacement value of the building and other
improvements located within such real property, as such replacement value may
increase from time to time, providing protection against any peril generally
included within the designation "all risk" (which may include earthquake and
flood insurance among other things) and coverage for vandalism and malicious
mischief (all of the types of coverage listed in this subparagraph B(ii)(a)
being referred to in this Lease as "Landlord's Property Insurance");
(b) the rents payable under this Lease (such coverage being
referred to in this Lease as "Landlord's Rent Insurance");
and
(c) any general liability coverage, premises liability coverage
or other type of Insurance relating to claims arising under negligence,
intentional tort, or liability theories brought by any party in
connection with the Premises or any condition or use thereof (all of the types
of coverage listed in this subparagraph B(ii)(c) being referred to in this Lease
as "Landlord's Liability Insurance").
C. Rental Business Tax: Tenant shall reimburse Landlord for any tax or
charge imposed upon Landlord by the State of Colorado or any political
subdivision of the State, commonly known as a "rental business tax", "head tax",
"occupancy tax" or "gross receipts tax", all of which are collectively referred
to as the "Rental Business Tax" in this Lease, provided that Tenant shall only
pay the amount of such business tax that would be payable by the Landlord if the
Premises was the only property of the Landlord. For purposes of this Lease only,
the calculation of any such business tax shall include only those payments from
Tenant under this Lease upon which the taxing statute or ordinance then in
effect assesses such business tax.
D. Time for Payment: On the first day of each calendar month during the
Lease term, Tenant shall pay, to the extent stated in Paragraph 4.2,
subparagraph A an amount equal to 1/12th of the estimated taxes and insurance
costs and Rental Business Tax for the Premises for the current tax year and
policy year, as the case may be. The monthly estimated taxes and insurance costs
and Rental Business Tax shall not be less than 1/12th of the actual taxes and
insurance and Rental Business Tax for the Premises for the preceding tax year in
the case of taxes or the preceding policy year in the case of insurance.
Annually and following Landlord's receipt of the applicable tax xxxx, Landlord
shall notify Tenant if any additional amount is owing and Tenant shall pay
Landlord such additional amount within ten (10) days thereafter. If Tenant's
monthly tax payments exceed the actual taxes for the period covered by the
actual tax xxxx, such excess shall be credited against the next monthly
installment of rent and additional rent and charges due. If Tenant's monthly
payments in reimbursement for Insurance costs as defined above are less than or
exceed the insurance costs determined in the manner stated above for any policy
year, then after the actual costs for such policy year become known Landlord
shall notify Tenant of such fact in writing and Tenant shall pay any deficiency
to Landlord on the later date of ten (10) days following delivery of such notice
or the first day of the next calendar month or Landlord shall credit any excess
paid by Tenant against the next monthly installment of rent and additional rent
and charges due, as the case may be. If the Lease expires or terminates prior to
the date that the actual taxes, Rental Business Tax and Insurance costs
determined in the manner stated above are determined, Landlord shall as soon as
is practicable after such items are determined notify Tenant in writing of any
adjustment and any additional amount by Tenant or refund by Landlord shall be
paid within ten (10) days after receipt of such notice.
5.1 UTILITIES AND SERVICES:
A. Tenant's Responsibility for Utilities and Services: Tenant shall make
all arrangements for and pay for all utilities and services furnished to or used
by it at the Premises, including, without limitation, gas, electricity, water,
telephone service,
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cleaning, and for all connection charges, initial deposits or other fees
therefor. Landlord shall have the option of requiring Tenant to install its own
meter(s), at Tenant's expense. Otherwise, Tenant shall pay its pro rata share of
utilities or services which are jointly metered or furnished based upon the
square footage of the building(s) within the Complex being serviced. Landlord
shall not be liable in damages or otherwise for any failure or interruption of
any utility services and Tenant shall not be entitled to terminate this Lease as
a result of such failure or interruption.
B. Common Area Maintenance Costs:
(i) Landlord's Duty to Maintain Common Areas: Definition of Common
Area Maintenance Costs: During the term of this Lease, Landlord shall keep or
cause the common areas to be kept in a neat, clean and orderly condition,
properly lighted and landscaped, and shall be charged and prorated in the manner
stated below. It is understood and agreed that the term "common area maintenance
costs" shall mean all sums expended by Landlord for payment of all work, deemed
necessary by Landlord for the management, operation, maintenance, replacement
and repair of the Complex and its common areas, including, without limitation,
the following: water, sewage service, pest control, trash collection, painting;
janitorial services; maintenance, repair and replacement when necessary of
sidewalks, curbs, bumpers, signs, planting and landscaping, and lighting and
other utilities; resurfacing, restriping, cleaning and sweeping the parking
areas: operation, maintenance and repair of any common fire protection systems,
automatic sprinkler systems and storm drainage systems: personnel to implement
such services including, without limitation, the cost of security guards; police
and fire protection services; any taxes and assessments imposed by governmental
agencies: costs of utility services for common areas; depreciation on
maintenance and operating machinery and equipment, if owned, and rental paid for
such machinery and equipment if rented: public liability and property damage
insurance on the common areas: all wage and labor costs (including salaries,
wages, payroll and similar taxes, Social Security taxes, unemployment insurance
costs, workers' compensation and other insurance and medical and other benefits)
applicable to persons engaged in the management, operation, maintenance,
replacement and repair of the common areas; fuel; supplies for the provision of
the foregoing services: and the cost of capital improvements (amortized in
accordance with generally accepted accounting principles together with interest
at the annual rate of two (2) percentage points in excess of the reference rate
being quoted by the Bank of America, N.T. & S.A. on the unamortized portion of
such cost) made after the date of this Lease which reduce other items of common
area maintenance costs or are required under any governmental law or regulation
that was not applicable to the building or complex at the time it was
constructed. Landlord may cause any of such services or items to be provided by
an independent contractor or contractors.
(ii) Time and Method of Payment: Tenant shall pay its proportionate
share of common area maintenance costs as follows:
(b) Within ninety (90) days after the end of each calendar year,
Landlord shall furnish Tenant with a statement covering the calendar year just
expired, certified as correct by Landlord, showing the total of the common area
maintenance costs, the amount of Tenant's share of same for each calendar year,
and the payments made by Tenant with respect to such calendar year. If Tenant's
share of said costs exceed Tenant's payments so made, Tenant shall pay Landlord
the deficiency within ten (10) days after receipt of said statement. If said
payments exceed Tenant's share of same, Landlord shall credit the excess against
payments thereafter due to Landlord under subparagraph B(ii)(a). If the Lease
expires or terminates prior to the date that the actual common area maintenance
costs are determined, Landlord shall, as soon as is practicable after such
common area maintenance costs are determined, notify Tenant in writing of any
adjustment and any additional amount by Tenant or refund by Landlord shall be
paid within ten (10) days after receipt of such notice.
(iii) Tenant's Proportionate Share Defined: Tenant's "proportionate
share of common area maintenance costs" shall mean the product which results
by multiplying the total of said costs by a fraction, the numerator of which
is the area of the Premises and the denominator of which is the total area of
the buildings contained within the Complex which are from time to time
occupied and open for business as of each calendar quarter.
6.1 REPAIR AND MAINTENANCE:
A. Tenant's Duty to Maintain the Premises: Throughout the Lease Term,
Tenant shall keep the Premises, including all improvements constructed by Tenant
therein, in good, clean and sanitary order, condition and repair, reasonable
wear and tear excepted, including, without limitation, the interior surface of
exterior walls: all windows, doors, door frames, and door closures; all plate
glass, storefronts and showcases: all carpeting and other floor covering; all
electrical equipment; and all plumbing systems, excluding fire sprinkler
systems, if any, installed therein. Tenant shall as necessary, or when required
by governmental authority, make modifications or replacements for any of the
items specified in the preceding sentence. Tenant waives the right to make
repairs at Landlord's expense under the provisions of any laws permitting
repairs by a tenant at the expense of the landlord because Landlord and Tenant
have made specific provisions in this Lease for such repairs and have defined
respective obligations relating thereto.
B. Landlord's Option to Make Neglected Repairs or to Maintain the
Premises: If Tenant refuses or neglects to make repairs to and/or maintain the
Premises, or any part thereof, in a manner reasonably satisfactory to Landlord,
Landlord shall have the right, but shall not be obligated, to enter upon the
Premises or any part thereof and cause such repairs or maintenance to be made on
behalf of and for the account of Tenant. In such event, such work shall be paid
for by Tenant as additional rent promptly upon demand, together with interest
thereon at the reference rate then being charged by the Bank of America N.T. &
S.A. plus four percent (4%) per annum.
C. Landlord's Duty to Maintain and Repair Foundations, Exterior Walls,
Roof, Fire Sprinkler System and Landlord's HVAC Equipment: Landlord shall
keep in good working order, condition and repair the foundations, exterior
walls (excluding the interior of all walls and the exterior or interior on
any windows, doors, plate glass and display windows), roof (excluding
interior ceiling), fire sprinkler systems (if any) and Landlord's HVAC
(heating, ventilation and air conditioning) equipment (if any) of or in the
Premises, except for any damage thereto caused by any act negligence or
omission of Tenant (excluding reasonable wear and tear), and except for any
structural alterations or improvements required by any governmental agency by
reason of Tenant's use and occupancy of the Premises, and provided Landlord
shall be exempt from any liability, injury or damage with respect to the
roof, fire sprinkler system and HVAC equipment. The term "Landlord's HVAC
equipment" as used in this Paragraph 6.1, shall mean and include all HVAC
equipment servicing the Premises as of the Commencement Date of this Lease.
Tenant expressly agrees that it will not enter nor permit its employees,
agents, customers, servants or invitees to enter upon the roof of the
Premises without the prior written consent of Landlord.
6.2 CONDITION OF THE PREMISES:
A. At Commencement Date or on Early Possession: Tenant acknowledges that
neither Landlord nor its agents have made any promise to alter, remodel or
improve the Premises or the building or any other improvement thereon, except as
expressly provided in a written rider, addendum or amendment to this Lease.
Tenant acknowledges neither Landlord nor its agents have made any representation
or warranty with respect to the condition of the Premises or the building or any
other improvement thereon. Tenant's taking possession of the Premises shall
conclusively establish that the Premises and the building and other improvements
located thereon were, at such time, taken by Tenant "as is" and Tenant hereby
waives any claims which may hereafter arise against
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Landlord resulting from the condition of the Premises or any improvement
thereon. Except as otherwise provided in this Lease, Tenant shall only
maintain on the Premises such furniture, furnishings, equipment and other
property as may be required to use the Premises for the purposes described in
Paragraph 1.1, subparagraph G.
B. Removal of Personal Property and Trade Fixtures at Expiration or
Termination: Any such property of Tenant may be sold, encumbered, replaced or
removed from the Premises at any time by Tenant provided, however, that upon
expiration or earlier termination of this Lease, Tenant agrees to remove any
such property from the Premises if so directed by Landlord, and provided further
that Tenant shall repair any and all damage to the Premises or building
resulting from the removal of any of Tenant's property after expiration or
termination of the Lease.
C. At Expiration or on Termination of the Lease: Upon the expiration or
other termination of this Lease, Tenant shall surrender the Premises to Landlord
broom clean in a good state of repair and in the same configuration and at least
as good condition as when received, subject to the provisions of Paragraphs 6.1,
6.2 and 10.1 of this Lease, and Tenant shall remove all its property as directed
by Landlord. Any and all alterations, improvements, changes or repairs to the
Premises and all electrical, plumbing, sewage, and other mechanical systems on
or in the Premises or the building and other improvements forming a part
thereof, exclusive of Tenant's trade fixtures, shall be surrendered with the
Premises upon termination of this Lease in good and working order, reasonable
wear and tear excepted. Any property left on or in the Premises upon expiration
or other termination of this Lease may, at Landlord's option, either be deemed
abandoned and, at Landlord's option, be disposed of or be placed in storage in
a public warehouse in the name of, for the account of and at the sole expense
and risk of Tenant, but Tenant shall remain liable to Landlord for any and all
damages to the Premises caused by removal of Tenant's property and for any or
all costs and expenses paid or incurred by Landlord in connection with the
foregoing. Tenant hereby agrees to release, indemnify, hold harmless, protect
and defend Landlord from any and all loss, cost, damage and expense, including
attorneys' fees arising out of any damage to or loss of any property left by
Tenant upon the Premises upon the expiration or other termination of this Lease
and with respect to any and all claims and liability relating to such property.
7.1 SECURITY DEPOSIT: Landlord shall hold the security deposit described in
Paragraph 1.1, subparagraph F as security for Tenant's performance of its
respective obligations, covenants and conditions under this Lease. The
security deposit shall be increased at the same time(s) and in the same
proportion(s) as the minimum monthly rent increases under Paragraph 1.1,
subparagraph C(ii) or C(iii). Tenant shall deposit with the Landlord the
amount of such increase on the same date as the first respective installment
of increased minimum monthly rent is due. If Tenant defaults in the
performace of its obligations, covenants and conditions under the Lease,
Landlord may use the security deposit, or any portion of it, to cure the
default or to compensate Landlord for all damage sustained by Landlord
resulting from Tenant's default. If any portion of the security deposit is so
used, Tenant shall deposit cash with Landlord in an amount sufficient to
restore the security deposit to the full amount stated above, as previously
adjusted, within five (5) days after Landlord has demanded such replenishment.
If Tenant is not in default at the expiration or termination of this Lease,
Landlord shall return the security deposit to Tenant within thirty (30) days
after expiration or termination of this Lease subject to the conditions that
Tenant has surrendered possession of the Premises to Landlord free of any
subtenants or other persons claiming possession or right to occupy the
Premises and Tenant has performed all of its obligations under this Lease,
Landlord will commingle the security deposit with Landlord's general and
other funds and shall not be required to pay interest on the security
deposit. No trust relationship is created herein between Landlord and Tenant
with respect to the security deposit. The use of the security deposit by
Landlord in the manner stated above shall not limit or restrict Landlord from
exercising any other rights or remedies provided to Landlord under this Lease
or under law or equity if Tenant defaults. If Landlord sells or otherwise
transfers the Premises or any interest in this Lease, Landlord may assign the
security deposit to the purchaser or other transferee thereof and if Landlord
makes such assignment Landlord shall no longer be liable to Tenant and Tenant
shall look solely to such purchaser or other transferee for the return of the
security deposit. Tenant shall not assign or encumber its contingent rights
to the return of the security deposit.
8.1 USE: Tenant shall not use or permit the Premises to be used for any other
purpose than that stated in Paragraph 1.1, subparagraph G without the prior
written consent of Landlord. Tenant expressly acknowledges that Landlord or its
agents have not made any representations as to the suitability of the Premises
for the use stated above and Tenant has been advised by Landlord or its agents
to make its own independent determination as to the suitability of the Premises
to the stated use, and any related zoning or other laws, ordinances, regulations
and directives or any applicable covenants, conditions and restrictions
affecting the Premises which may limit or restrict the stated use. The taking
of possession of the Premises by Tenant shall conclusively establish that the
Premises were at such time in a satisfactory condition. Tenant shall not
commit, or permit to be committed, any waste upon the Premises, or any nuisance
or other act in violation of public policy. Further, Tenant shall not commit,
or suffer to be committed, anything which would subject the Landlord to
responsibility or liability for injury or damage to any person or property or
which would invalidate or increase the cost of any insurance coverage described
in this Lease. Tenant shall comply with all rules, regulations, orders and
requirements of Landlord's then current insurance carrier(s) with respect to the
use of the Premises and necessary for maintaining reasonable insurance coverage
of the types specified in this Lease. Tenant shall not do or permit anything to
be done in, or about the Premises or the Complex which will in any way obstruct
or interfere with the rights of other tenants or occupants of the Complex, or
injure or annoy them, or use or allow the Premises to be used for any improper,
immoral, unlawful or objectionable purpose.
A. No Exterior Storage: Tenant shall not store or permit to be stored on
the Premises, other than within the building which is the principal building
located on the Premises in the case of a free-standing building or within the
Premises in the case where the Premises is a part of a multi-tenant structure,
any goods, machinery, merchandise, equipment or other property or materials
unless such exterior storage is specifically provided for by rider, addendum or
other amendment to this Lease and only is such exterior storage is permitted by
law, ordinance, rule or regulation of all applicable governing authorities
having jurisdiction over the Premises.
B. Dust and Fume Control: No wood shaping or spraying material processes
will be performed on any part of the Premises except in an environment
controlled by appropriately designed and installed air-handling equipment which
shall be maintained and operated at all times during the Lease term as required
to prevent hazardous accumulations of wood and chemical pollutants in the
atmosphere within the Premises, and all equipment installations required to
comply with this subparagraph B shall be commenced, performed and completed
promptly after the commencement date. Tenant warrants to Landlord that such
installation shall be made in correctly designed facilities and in a
workmanlike manner.
C. Hazardous Materials: Tenant shall not, without first obtaining
Landlord's written consent, bring or allow to be brought upon or about the
Premises or the Complex any substance which is regulated as a toxic waste or
hazardous material under any law or regulation of any governmental authority
(including, without limitation, any toxic or hazardous substance, material or
waste listed from time to time in the United States Department of Transportation
Table (49 CFR 172.101) or by the Environmental Protection Agency as a hazardous
substance (40 CFR, Part 302) ("Hazardous Materials)."
9.1 LAW COMPLIANCE: Tenant shall comply with all applicable covenants,
conditions and restrictions now or hereafter affecting the Premises or the
Complex, with all laws, ordinances, regulations, directives and requirements of
all government authorities having jurisdiction over the Premises or the Complex
(including, without limitation, those relating to health, safety, noise,
environmental protection, waste disposal, water and air quality, and the use,
storage and disposal of Hazardous Materials) and with the certificate of
occupancy for the Premises or the Complex and shall not permit anything to be
done on the Premises or within the Complex in violation thereof. Upon written
demand, Tenant shall discontinue any use of the Premises in violation of any
covenants, conditions and restrictions, or of any law, ordinance, regulation or
governmental directive or of the certificate of occupancy.
10.1 ALTERATIONS AND REPAIRS:
A. Landlord's Consent Required: Conditions of Consent: Tenant shall not
make or cause to be made any exterior, interior,
5
structural, electrical, ventilation, air conditioning or other type of
alterations, improvements, additions, changes or repairs in or to the
Premises, without Landlord's prior written consent. Landlord may arbitrarily
withhold consent to any alteration or improvement which affects, or is
visible from, the exterior of the Premises or any building located within the
Premises or any building of which the Premises forms a part or which affects
the structural components of the Premises or any building located within the
Premises or any building of which the Premises forms a part. As to all other
types of alterations, improvements, additions, changes or repairs to the
Premises, Landlord's consent shall not be unreasonably withheld. However, as
a condition to granting its consent, Landlord may impose reasonable
requirements including, without limitation, requirements as to the manner and
time for the performance of any such work and the type and amount of
insurance and bonds Tenant must acquire and maintain in connection therewith
and the requirement that Tenant deposit with Landlord additional security
deposit(s) sufficient to defray the costs of restoration of the Premises to
the same configuration and at least as good condition as existed prior to the
installation of the proposed improvements, alterations, additions, or
changes. At the completion of such work, Tenant shall deliver to Landlord
the "as-built" plans and specifications and a certificate from Tenant's
architect or engineer stating that the work has been completed in full
compliance with such plans and specifications, such certificate to be in form
and substance reasonably satisfactory to Landlord. In addition, at
Landlord's option, Landlord shall have the right: to approve the contractors
or mechanics performing the work; to approve all plans and specifications
relating to the work; to review the work of Tenant's architects, engineers,
contractors or mechanics and to control any construction or other activities
being undertaken in connection with the Premises, with Landlord to be
reimbursed for any costs incurred in connection with such review and/or
control; and to order reasonable changes in the work in instances in which
materials or workmanship is defective or not in accordance with plans or
specifications previously approved by Landlord. Tenant shall provide and pay
for all alterations, improvements, additions, changes or repairs to the
Premises at Tenant's sole expense, except as expressly provided in a rider,
addendum or amendment to this Lease. Except for trade fixtures regularly
used in Tenant's business, all improvements, alterations, additions, changes
or repairs to the Premises shall become the property of Landlord at the time
such items are installed and attached to the Premises and shall be
surrendered with the Premises in good and working order or condition upon
termination of this Lease. However, Landlord may, by written notice to Tenant
given at least thirty (30) days prior to termination of this Lease, require
Tenant to remove any or all improvements, alterations, additions, or fixtures
installed or made by Tenant on or to the Premises and to repair any damages
to the Premises caused by such removal.
B. Tenant's Duty to Repair: All damage or injury to the Premises or
Complex caused by the act or negligence of Tenant or its employees, agents,
customers, servants or invitees shall be promptly repaired by Tenant at
Tenant's expense and to the satisfaction of Landlord in accordance with this
Paragraph 10.1: provided, however, Landlord may, at its option, make or
cause to be made any such repairs and may charge Tenant for any costs and
expenses paid or incurred, by Landlord in connection therewith. Except as
specifically provided in Paragraph 15.1 below, there shall be no reduction in
rent payable by Tenant and no liability on the part of Landlord by reason of
inconvenience, annoyance or injury to business arising from the making of any
repairs, alterations or improvements to any portion of the Premises or the
Complex or fixtures and equipment related thereto, and no liability on the
part of Landlord for failure to make repairs, alterations or improvements to
the Premises or the Complex or any fixtures and equipment related thereto
which are necessitated by reason of the act or negligence of any other tenant
or occupant of the Complex.
C. Law Compliance and Improvement Work: All work in connection with any
alterations, improvements, changes, additions or repairs in the Premises or the
Complex, made for the benefit of Tenant shall be performed in full compliance
with all laws, ordinances, regulations, rules and requirements of all
governmental entities having jurisdiction and in full compliance with all rules,
orders, directions, regulations and requirements of Landlord's then current
insurance carrier(s). If there is now or if there shall be installed in the
Premises a sprinkler system, and if Landlord's then current insurance carrier(s)
or any governmental authority having jurisdiction requires or recommends that
any changes, modifications or alterations to the sprinkler system, or requires
or recommends additional sprinkler heads or other equipment be made or supplied
by reason of Tenant's business or the improvements it has added or the location
of partitions, trade fixtures or other contents of the Premises, or if any such
changes, modifications, alterations, additions or other equipment become
necessary to prevent imposition of a penalty or charge against the full
allowance for a sprinkler system in the fire insurance rate as fixed by
Landlord's then current insurance carrier(s), Tenant shall, at its own cost,
promptly make and supply all such changes, modifications, alterations,
additional sprinkler heads or other equipment.
D. Notices of Nonresponsibilty, Mechanics' Liens and Bonds: Before work
is commenced as provided in this Paragraph 10.1, Tenant shall give Landlord at
least fifteen (15) days written notice to afford Landlord an opportunity to post
appropriate notices of nonresponsibilty. Tenant shall secure at Tenant's own
cost, a completion and lien indemnity bond, satisfactory to Landlord, for said
work. Any mechanics' liens for work claimed to have been performed for, or
materials claimed to have been furnished to, Tenant shall be discharged by
Tenant, by bond or otherwise, within ten (10) days after the filing of such
lien, at Tenant's sole expense. In the event that Tenant does not, within ten
(10) days following the recording of notice of any such lien, cause such lien to
be released of record, by payment or posting of a proper bond, Landlord shall
have, in addition to all other remedies provided herein and by law, the right,
but not the obligation, to cause the same to be released by such means as it
shall deem proper, including payment of the claim giving rise to such lien. All
sums paid by Landlord and all expenses incurred by it in connection therewith,
including attorneys' fees and court costs shall be payable to Landlord by Tenant
on demand with interest at the Maximum rate allowed by law or, if no such
maximum rate is prescribed by law, then at the Default Rate, (as defined in
Paragraph 19.1, subparagraph C(ii)(h)) from the date such expenses are incurred
by Landlord to the date payment is received by Landlord from Tenant. Tenant
agrees to indemnity, hold harmless and defend Landlord from any loss, cost,
damage or expense, including attorneys' fees, arising out of any such lien claim
or out of any other claim relating to work done or materials supplied to the
Premises at Tenant's request or on Tenant's behalf.
11.1 SIGNS: No signs shall be installed on or about the Premises without
Landlord's prior written approval. The installation and maintenance of any and
all signs by or on behalf of Tenant shall be in full compliance with all
applicable laws, ordinances, regulations, rules and orders of any governmental
authority having jurisdiction, and Tenant shall obtain all necessary licenses
and permits in connection therewith. Tenant shall install and promptly repair,
maintain and service all such signs in accordance with proper techniques and
procedures, and shall indemnity, hold harmless and defend Landlord from all
loss, cost, damage or expense, including attorneys' fees arising out of any
claim relating to the installation, existence, operation, maintenance, repair,
removal or condition of any such sign. On or before the termination of this
Lease, Tenant shall, at its sole expense, remove all such signs in a manner
satisfactory to Landlord and shall immediately repair, at Tenant's sole expense,
any injury or damage caused by removal. All costs and expenses relating to all
such signs shall be borne solely by Tenant.
12.1 INDEMNIFICATION: Tenant agrees to indemnity, hold harmless, defend and
protect Landlord and its shareholders, partners, directors, officers, agents
and employees from any loss, cost, damage, liability or expense (including,
without limitation, attorneys' fees and legal costs) arising out of or
related to any claim, suit or judgment brought by or in favor of any
person(s) for damage, loss or expense (including, without limitation, bodily
injury, including death, or property damage) which is occasioned by or in any
way attributable to or arising out of the use or occupancy of the Premises or
the acts or omissions of Tenant or its employees, agents, customers, servants
or invitees or the breach or default by Tenant of any of its obligations
under this Lease, including, without limitation, the provisions set forth in
Paragraph 8.1 and Paragraph 9.1 above. This indemnification of Landlord by
Tenant includes, without limitation, costs incurred in connection with any
investigation of site conditions or any clean up, remedial removal or
restoration work required by any federal, state or local government agency
because of Hazardous Materials present in the soil or ground water on or
under the Premises. However, Tenant shall not be responsible for damage,
loss or expense caused by the sole negligence or willful misconduct of
Landlord or its agents or employees. Tenant's obligations under this
Paragraph 12.1 shall expressly survive the termination of this Lease.
Landlord shall not be liable for, and is released by Tenant with respect to,
any damage, loss or expense occurring on or about the Premises during the
Lease term unless caused by the sole negligence or willful misconduct of
Landlord or its agents or employees. The limits of any insurance required to
be maintained by Landlord or Tenant, as provided in Paragraph 13.1 of this
Lease, shall not be deemed to limit Tenant's obligations under this Paragraph
12.1 or under any other provision of this Lease. Neither Landlord not its
agents or employees shall be liable for any damage to property resulting from
fire, earthquake or earth movement, explosion, falling glass or other
materials, steam, gas, electricity, water or rain which may leak from any
part of the building or other improvements forming a part of the Premises or
of which the Premises is a part, or from the pipes, appliances or plumbing
works therein, or from the roof, street or subsurface thereof or from any
other place or resulting
6
from dampness or any other cause whatsoever, unless caused by or due to the sole
negligence or willful misconduct of Landlord, its agents or employees. Landlord
or its agents shall not be liable for interference with light or other
incorporeal hereditaments. Landlord shall not be liable for any latent defect
in the Premises or the building or other improvements forming a part thereof
or of which the Premises is a part. Tenant shall give prompt notice to
Landlord in case of fire or accidents in the Premises or the building or of
defects therein or in the fixtures or equipment related thereto.
13.1 INSURANCE REQUIRED TO BE OBTAINED BY TENANT:
A. Public Liability Insurance: At all times during the Lease term,
Tenant shall maintain in full force comprehensive public liability insurance
as may be generally available from insurance companies of the type described
below with limits of not less than those required in Paragraph 1.1.
subparagraph 1 and such policy(ies) shall name Landlord and Landlord's
managing agent as additional insureds. The term of such insurance policy may
be for such period as shall be designated by Tenant; provided, however, that
within thirty (30) days prior to the expiration of such policy, Tenant shall
procure another policy of said insurance so that, throughout the entire Lease
term Landlord and Landlord's managing agent shall always be additional
insureds under policies with insurance coverages of the type specified. The
policy limits shall never be decreased, but shall be reasonably increased in
accordance with increases, if any, necessary to maintain policy limits from
time to time customary and usual for premises of the similar type, size and
use as the Premises in the city and county where the Premises is located.
Increases in the policy limits shall not be required more frequently than
once a year.
B. Insurance on Tenant's Personal Property, Improvements and Alterations:
Tenant at its cost shall maintain on all its personal property, leasehold
improvements, and alterations, in, on, or about the Premises, a policy of
standard fire and extended coverage insurance, with vandalism and malicious
mischief endorsements in the amount of the full replacement cost thereof.
Landlord shall in no way be liable for damage to Tenant's personal property,
alterations and improvements.
C. Plate Glass Insurance: Tenant at its cost shall maintain full
coverage plate glass insurance on the Premises.
D. General Requirements: All the insurance required of Tenant under this
Lease shall (i) be issued by insurance companies authorized to issue the
relevant insurance and to do business in Colorado with at least an "A", class X
rating, as rated in the most recent edition of Best's Rating Guide, (ii) be
issued as a primary policy but may include umbrella policies, (iii) contain an
endorsement requiring thirty (30) days written notice from the insurance company
to Landlord, Tenant and Landlord's lender, if any, before cancellation or
change in the coverage, scope, or amount of any policy and (iv) shall name
Landlord and Landlord's managing agent (and at Landlord's option, the holder of
any mortgage or deed of trust affecting the Premises) as additional insureds.
Each policy or a certificate thereof shall be deposited with the Landlord on or
before the commencement of the term, and on renewal of the policy not less than
twenty (20) days before expiration of the term of the policy.
14.1 WAIVER OF SUBROGATION: Landlord and Tenant mutually waive any and all
rights of recovery against each other and each of their respective officers,
employees, agents and representatives for loss of or damage to the other or its
property or the property of others under its control, arising from any cause
insured against but only to the extent of such insurance, exclusive of any
deductible amount and any amount in excess of policy limits, under any policy of
insurance carried by such waiving party. Tenant shall obtain and furnish
evidence to Landlord of the waiver by Tenant's insurance carriers of any right
of subrogation against Landlord.
15.1 DAMAGE OR DESTRUCTION:
A. Landlord's Duty to Restore When the Premises is Destroyed: If,
during the term, the building or other improvements located on the Premises
or the building and other improvements in which the Premises is located are
totally or partially destroyed from any cause covered by Landlord's Property
Insurance described in Paragraph 4.2 subparagraph B(ii)(a), rendering the
Premises totally or partially inaccessible or unusable, Landlord shall
restore the building or other improvements located on the Premises or the
building and other improvements in which the Premises is located to
substantially the same condition as they were in immediately before the
destruction, if the restoration can be made under the existing laws and can
be completed within 180 days after the date of destruction. Such destruction
shall not terminate this Lease. If the restoration cannot be made within
said 180 days, then within 10 days after the parties determine that the
restoration cannot be made within said period, either party can elect to
terminate this Lease immediately by giving written notice to the other. If,
during the term, the building or other improvements located on the Premises
or the building and other improvements in which the Premises is located are
totally or partially destroyed from a risk not covered by Landlord's Property
insurance described in Paragraph 4.2 subparagraph B(ii)(a) rendering the
Premises totally or partially inaccessible or unusable, Landlord shall have
the sole, exclusive and conclusive option and right to restore the building
or other improvements located on the Premises or the building and other
improvements in which the Premises is located to substantially the same
condition as they were in immediately before destruction, if the restoration
can be made under the existing laws and can be completed within 180 days
after the date of destruction. Such destruction shall not terminate this
Lease. If the existing laws do not permit the restoration, either party can
terminate the Lease immediately by giving written notice to the other party.
If the restoration can be made within 180 days after the date of destruction,
Landlord must elect either to terminate this Lease or to restore the building
or other improvements located on the Premises or the building and other
improvements in which the Premises is located by giving notice to Tenant
within 10 days after determining the restoration can be completed within said
180 days after the date of destruction. However, if Landlord elects to so
terminate this Lease, Tenant may elect to pay for the cost of such restoration
and override Landlord's election to terminate by providing Landlord notice of
Tenant's election to pay for such restoration accompanied by payment of the
estimated costs of such restoration with 10 days after Tenant's receipt of
Landlord's notice to terminate Tenant's right to pay for such restoration and
override Landlord's election to terminate the Lease can be exercised only if
restoration can be completed within said 180 day period and 180 day period
remains within the term of this Lease. If Landlord elects to terminate this
Lease and Tenant does not elect to pay for the costs of restoration, this
Lease shall terminate on the 10th day after Landlord notifies Tenant of its
intention to so terminate.
B. Extent of Landlord's Obligation to Restore: If Landlord is required
or elects to restore the Premises as provided in this Xxxxxxxxx 00.0, Xxxxxxxx
shall not be required to restore alterations and improvements made by Tenant,
Tenant's trade fixtures and Tenant's personal property, such excluded items
being the sole responsibility of Tenant to restore any and all common area
maintenance costs.
C. Abatement or Reduction of Rent: In the case of destruction, and such
destruction is not caused by the negligence of Tenant, its employees, agents,
customers, servants or invitees, there shall be an abatement or reduction of
minimum monthly rent only between the date of destruction and the date of
substantial completion of restoration, based on the extent to which the
destruction interferes with Tenant's use of the Premises.
D. Loss During the Last Part of the Term: If destruction of the type
specified in this Paragraph 15.1 occurs during the last year of the term,
Landlord can terminate this Lease by giving written notice to Tenant no later
than 15 days after the date of destruction. However, if Tenant has been granted
an option to extend the term of the Lease by rider, amendment or addendum to
this Lease, and the time within which the option can be exercised has not
expired, and Tenant exercises the option to extend the term as provided in said
rider, amendment or addendum, then Landlord shall restore the Premises subject
to the provisions stated in this paragraph 15.1.
E. Waivers: Tenant hereby waives all rights under any statute or law of
the State of Colorado, currently existing or hereinafter enacted or promulgated,
authorizing a tenant to make repairs at the expense of a landlord or to
terminate a lease upon the complete or partial destruction of the premises;
provided, however, that such waivers are not intended to limit or impair any
express rights or privileges which may have been granted to Tenant in this
Lease.
7
* , and subject to Tenant's right to reaffirm its interests in Premises and this
Lease as defined in this Paragraph 16.1C
16.1 ASSIGNMENT AND SUBLETTING:
A. Restrictions and Conditions: tenant shall not, either voluntarily or
by operation of law, directly or indirectly, sell, assign, transfer or
hypothecate this Lease or sublet the Premises, or any part thereof, or permit
the Premises, or any part thereof, to be occupied by anyone other than Tenant or
Tenant's employees without prior written consent of Landlord in each instance. A
transfer of stock control in Tenant, if Tenant is a corporation, or the transfer
of any partnership interest in Tenant, if Tenant is a partnership, shall be
deemed an act of assignment hereunder. Subject to the provisions of
subparagraphs B, C and D of this Paragraph 16.1. Landlord's consent to
assignment or subletting (subject to the procedures set forth in subparagraph A
of this Paragraph 16.1) shall not be unreasonably withheld, provided the
proposed assignee or subtenant (i) is satisfactory to Landlord as to credit,
character and professional standing, (ii) will meet any other tenant
requirements then generally imposed by Landlord with respect to new tenants of
the Complex, or for the Premises, (iii) will use the Premises for purposes which
are reasonably acceptable to Landlord and which will not conflict with any use
or zoning restriction, not increase the burdens on the facilities and equipment
servicing the Premises and not conflict with any other commitments which
Landlord has theretofore made to other tenants in the Complex and (iv) will not
use any part of the Premises for the generation, storage, use or disposal of any
Hazardous Material. Landlord may, however, withhold such consent if, in
Landlord's reasonable judgment, the occupancy of the proposed assignee or
subtenant will tend to impair the character or dignity of the building or impose
any additional burden upon Landlord in the operation of the building. Any sale,
assignment, mortgage, transfer or subletting of this Lease which is not in
compliance with the provisions of this Paragraph 16.1 shall be void and shall,
at the option of Landlord, terminate this Lease. The consent by Landlord to an
assignment or subletting shall not be construed as relieving Tenant from
obtaining the express prior written consent of Landlord to any further
assignment or subletting or as releasing Tenant from any liability or obligation
hereunder, whether or not then accrued. Tenant agrees that in no event will it
attempt to assign or sublet to any existing tenant or subtenant of the Complex.
B. Notice and Documentation: As conditions precedent to any assignment of
the whole of Tenant's interest in this Lease or the subletting by Tenant of the
whole or any part of the Premises, (i) at least thirty (30) days prior to any
proposed assignment or subletting. Tenant shall submit to Landlord a statement
containing (a) the name and address of the proposed assignee or subtenant; (b) a
current financial statement of the proposed assignee or subtenant containing
therein bank and other credit references; (c) the specific type of use proposed
for the Premises; and (d) all of the principal terms and conditions of the
proposed assignment or subletting including, without limitation, the proposed
commencement and expiration dates of the term thereof and the amount of rent to
be payable by the assignee or subtenant and a floor plan delineating the
proposed, assigned or sublet area; and (ii) Tenant shall deliver to Landlord an
original assignment or sublease executed by Tenant and the proposed assignee or
subtenant on a form approved by Landlord which shall expressly provide (a) for
the assumption by such proposed assignee or subtenant of all of Tenant's
obligations under the terms of this Lease; (b) that Tenant shall indemnify and
hold Landlord harmless from any and all claims, obligations and liabilities
(including reasonable attorneys' fees) arising from such assignee's or
subtenant's occupancy and use of the Premises, or any portion thereof, whether
such claim, obligation or liability arises from such assignee's or subtenant's
conduct, activity, work or any other matter in, on or about the Premises and/or
the building; (c) that Tenant shall further indemnify and hold Landlord harmless
from any costs, obligations or liabilities (including reasonable attorneys'
fees) arising from any act or negligence of such assignee or subtenant, or any
employee, agent, customer, servant or invitee of such assignee or subtenant, and
from any claim, action or proceeding brought thereon; (d) that in no event shall
Tenant, by reason of Landlord's approval of the assignment or sublease, be
deemed relieved from any obligation or liability under the Lease, including,
without limitation, the obligation to obtain Landlord's consent to any further
assignment or subletting; and (e) that such proposed assignment or subletting
shall not be deemed effective for any purpose unless and until Landlord's
written consent thereto is obtained. Tenant shall reimburse Landlord for all
costs incurred by Landlord in connection with its review and consideration of
any proposed assignment, transfer, mortgage, pledge, encumbrance or
hypothecation of the Lease or subletting of the Premises, or any part thereof,
including, without limitation, reasonable attorneys' fees.
C. Right of Recapture: In lieu of giving or withholding its consent to
any proposed subletting or assignment, Landlord shall have the following
right to recapture the Premises and shall thereafter be free to lease the
area subject to the proposed assignment or sublease directly to the proposed
assignee or sublessee or any other person without such act being construed to
(1) unreasonably interfere with Tenant's contractual relations, (2)
constitute unfair competition or (3) otherwise create any claim or cause of
action in favor of Tenant.* In lieu of consenting or not consenting,
Landlord may within thirty (30) days after Landlord has received all of the
documentation described in subparagraph B of this Article 16.1, at its
option, (i) in the case of the proposed assignment or subletting of Tenant's
entire leasehold interest, terminate Tenant's lease in its entirety, or (ii)
terminate Tenant's lease as to that portion of the Premises which Tenant has
proposed to sublet.** In the event Landlord elects to terminate this Lease
pursuant to clause (ii) above. Tenant's obligations as to rent shall be
reduced in the same proportion that the rentable area of the portion of the
Premises taken by the proposed assignee or subtenant bears to the total
rentable area of the Premises. The reservation of Landlord's right of
recapture is a critically important economic right in favor of Landlord which
has been expressly negotiated between the parties and which requires the
release of liability on the part of Tenant for any obligations with respect
to the area subject to the proposed sublease or assignment.
D. Landlords Right to Profit: In the event of any assignment or sublease
approved by Landlord of all or any portion of the Premises, where the rent
reserved in the assignment or sublease exceeds the rent or pro rata portion of
the rent, as the case may be, for such space reserved in this Lease. Tenant
shall pay to Landlord monthly, as additional rent, at the same time as the
monthly installments of rent required hereunder, seventy five percent (75%) of
the excess of the rent reserved in the assignment or sublease, over the rent
reserved in the Lease, applicable to the assigned or subleased space. Landlord's
right to any such profit payable by the approved assignee or sublessee is a
critically important economic right in favor of Landlord which has been
expressly negotiated between the parties in contemplation of and in
consideration for the specific minimum monthly rent negotiated between the
parties and specified in this Lease. Such minimum monthly rent has been set with
the specific intent that Landlord alone is entitled to what is commonly known as
the appreciation in the equity value of the Lease and that the minimum monthly
rent would have been established at a higher rate had the parties negotiated for
any sharing in such appreciated equity value, if any.
17.1 CONDEMNATION: If the whole of the Premises or so much thereof as to render
the balance of the Premises unusable by Tenant, shall be taken or condemned by
any authority under power of eminent domain or any similar power for any public
or quasi-public use or purpose or shall be transferred by agreement in
connection with such public or quasi-public use or purpose with or without a
condemnation action or proceeding being instituted, this Lease shall terminate
as of the date of such taking or condemnation. No award for any partial or
entire taking shall be apportioned, and Tenant hereby assigns to Landlord any
award which may be made in connection with such taking or condemnation, together
with any and all rights of Tenant now or hereafter arising with respect to all
or part of such award or any proceedings relating thereto; provided, however,
that Landlord shall have no interest in any award separately made to Tenant for
the interruption of or damage to Tenant's business, or its trade figures,
equipment or movable furniture, so long as such award does not diminish the
award made to Landlord. In the event that any such taking or condemnation is
temporary or is partial and does not render the balance of the Premises unusable
by Tenant, this Lease shall not terminate but the rent and other charges payable
to Landlord by Tenant shall be equitably abated for the remainder of the Lease
term, which abatement, in the case of a temporary taking, shall be limited to
the amount of the award. As used in the preceding sentence, a condemnation or
taking shall be deemed temporary if it is for a period of six (6) months or
less. Each party waives all rights, if any, under Colorado law or statute which
would allow either party to terminate this Lease by seeking an Order or other
relief from a court having jurisdiction hereover.
18.1 TAXES ON PERSONAL PROPERTY: Tenant shall pay all taxes assessed against or
levied upon fixtures, furnishings, equipment and all personal property owned or
possessed by Tenant and located on the Premises prior to delinquency. When
reasonably possible, Tenant shall cause such fixtures, furnishings, equipment
and other personal property to be assessed and billed to Tenant separately from
the real property of which the Premises forms a part. If any or all of such
fixtures, furnishings, equipment and other personal property shall be assessed
and taxed with the real property. Tenant shall pay to Landlord its share of such
taxes within fifteen (15) days prior to delinquency. Tax bills for such taxes
shall be provided by Landlord to Tenant not later than thirty (30) days prior to
the delinquency date therefor. Any amounts due hereunder shall be deemed
additional rent payable to Landlord.
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** provided, however, Tenant shall have ten (10) days after receipt of
Landlord's notice of its intent to exercise its rights under this Paragraph
16.1C to notify Landlord that Tenant elects, at Tenant's sole option, to
reaffirm Tenant's interest in the Premises and this Lease. If tenants fail
to reaffirm, Tenant shall have forfeited its right to reaffirm and this
Lease shall terminate.
19.1 DEFAULTS AND REMEDIES:
A. Events of Default: The occurrence of any of the following shall
constitute a material default and breach of this Lease by Tenant.
(i) Failure to pay rent as such term is defined in Paragraph 4.1,
subparagraph A, when due.
(ii) Abandonment and vacation of the Premises. Failure to occupy and
operate Tenant's business at the Premises for ten (10) consecutive days shall be
deemed an abandonment and vacation of the Premises.
(iii) Failure to perform any other provision of this Lease if the
failure to perform is not cured within ten (10) days after written notice has
been given to Tenant. If the default cannot reasonably be cured within ten (1)
days. Tenant shall not be in default of the Lease if Tenant commences to cure
the default within the ten-day period and diligently and in good faith continues
to cure the default to completion. The ten-day notice described in this
subparagraph (iii) for default other than the payment of rent is in lieu of, and
not in addition to, any notice required under Colorado law.
(iv) The making by Tenant of any general assignment for the benefit of
creditors, the filing by or against Tenant of a petition under any federal or
state bankruptcy or insolvency laws (unless, in the case of a petition filed
against Tenant, the same is dismissed within thirty (30) days after filing); the
appointment of a trustee or receiver to take possession of substantially all of
Tenant's assets at the Premises or Tenant's interest in this Lease or the
Premises, when possession is not restored to Tenant within thirty (30) days; or
the attachment, execution or other seizure of substantially all of Tenant's
assets located at the Premises or Tenant's interest in this Lease or the
Premises, if such seizure is not discharged within thirty (30) days.
B. Notices: Notices given under Paragraph 19.1 shall specify the alleged
default and shall demand that Tenant perform the provisions of this Lease or pay
the rent that is in arrears, as the case may be, within the applicable time
period, or quit the Premises. No such notice shall be deemed a forfeiture or a
termination of this Lease unless Landlord so elects in the notice.
C. Landlord's Remedies: Landlord shall have the following remedies if
Tenant commits a default. These remedies are not exclusive; they are cumulative
and in addition to any remedies now or later allowed by law or equity.
(i) Landlord's Election to Retake Possession Without Termination of
Lease: Landlord may retake possession of the Premises and shall have the
right, but not the obligation, without being deemed to have accepted a
surrender thereof, and without terminating this Lease, to relet the same for
the remainder of the Term of the Lease upon terms and conditions satisfactory
to Landlord; and if the rent received through such reletting does not at
least equal the Minimum Monthly Rent and Additional Rent, Tenant shall pay
and satisfy any deficiency between the amount of rent so provided in this
Lease and the rent received through reletting the Premises; and, in addition,
Tenant shall pay all reasonable expenses incurred in connection with any such
reletting, including, but not limited to, the cost of renovating, altering
and decorating for any occupant and leasing commissions paid to any real
estate broker or agent, and attorney's fees incurred. In no event shall
Tenant be entitled to receive or have any obligation abated or offset for any
rent received by Landlord in excess of the rent so provided in this Lease.
(ii) Landlord's Election to Terminate Lease: Landlord may terminate
the Lease and forthwith repossess the Premises and be entitled to recover as
damages a sum of money equal to the total of the following amounts:
(a) The unpaid Minimum Monthly Rent and Additional Rent earned
at the time of termination, plus interest thereon at the Default Rate from the
due date;
(b) The balance of the Minimum Monthly Rent for the remainder of
the Term of the Lease less the reasonable rental value of the Premises if
subleased under the terms of this Lease that Tenant so proves;
(c) Damages for the wrongful withholding of the Premises by
Tenant;
(d) All legal expenses, including attorneys' fees, experts'
fees, witness fees, Court costs and other costs incurred in the preparation of
any litigation or consultations with counsel or incurred in exercising its
rights under the lease;
(e) All costs incurred in recovering the Premises;
(f) All costs incurred by Landlord in restoring the Premises to
good order and condition, and altering or preparing the Premises for reletting;
(g) All commissions incurred by Landlord in reletting the
Premises; and
(h) Any other amount, or other Court costs, necessary to
compensate Landlord for all detriment proximately caused by Tenant's default.
The default rate of interest is computed by allowing interest at the referenced
rate then being charged by the Bank of America, N.T. and S.A. plus four percent
(4%) per annum ("Default Rate").
(iii) Appointment of Receiver: If Tenant is in default of this Lease,
Landlord shall have the right to have a receiver appointed to collect rent and
conduct Tenant's business. Neither the filing of a petition for the appointment
of a receiver nor the appointment itself shall constitute an election by
Landlord to terminate this Lease.
(iv) Landlord's Right to Cure Tenant's Default: Landlord, at any time
after Tenant commits a default, can cure the default at Tenant's cost. If
Landlord at any time, by reason of Tenant's default, pays any sum or does any
act that requires the payment of any sum, the sum paid by the Landlord shall be
due immediately from Tenant to Landlord at the time the sum is paid, and if paid
at a later date shall bear interest at the default rate from the date the sum is
paid by Landlord until Landlord is reimbursed by Tenant. The sum, together with
interest on it, shall be additional rent.
(v) Interest on Unpaid Rent: Rent not paid when due shall bear
interest from the date due until paid at the Default Rate.
(vi) Late Charge. Tenant acknowledges that late payment by Tenant to
Landlord of rent will cause Landlord to incur costs not contemplated by this
Lease, the exact amount of such costs being extremely difficult and
impracticable to fix. Such costs include, without limitation, processing and
accounting charges, and late charges that may be imposed on Landlord by the
terms of any encumbrance and note secured by an encumbrance covering the
Premises. Therefore, if any installment of rent due from Tenant is not received
by Landlord within ten (10) days of when due, Tenant shall pay to Landlord an
additional sum of 10% of the overdue rent as a late charge. The parties agree
that this late charge represents a fair and reasonable estimate of the costs
that Landlord will incur by reason of late payment of Tenant. Acceptance of any
late charge shall not constitute a waiver of Tenant's default with respect to
the overdue amount, or prevent Landlord from exercising any of the other rights
and remedies available to Landlord.
(vii) Non-Waiver. No covenant, term or condition or the breach thereof
shall be deemed waived, except by written consent of the party against whom the
waiver is claimed, and any waiver or the breach of any covenant, term or
condition shall not be deemed to be a waiver of any preceding or succeeding
breach of the same or any other covenant, term or condition of this Lease.
Acceptance by Landlord or any performance by Tenant after the time the same
shall have become due shall not constitute a waiver by Landlord of the breach or
default of any covenant, term or condition of the Lease unless otherwise
expressly agreed to by Landlord in writing. No payment by Tenant or receipt by
Landlord of a lesser amount than the minimum monthly rent or any other
9
amount payable by Tenant and defined as "rent" in Paragraph 4.1, subparagraph A
shall be deemed to be other than an account of the earliest outstanding
installment of any stipulated amount due. No endorsement or statement on any
check or any letter accompanying any check or payment shall be deemed an accord
and satisfaction and Landlord may accept such check or payment without prejudice
to Landlord's rights to recover the balance of any outstanding amounts then due
and payable or past due and in arrears under this Lease and without prejudice to
any other remedy provided in this Lease. Nothing in this Paragraph 19.1 shall be
deemed to affect Landlord's rights to indemnification and other rights provided
under Paragraph 12.1 arising out of any act, omission, event or occurrence which
took place prior to the termination of the Lease whether a claim relating to
such acts, omissions, events or occurrences is made before or after the date of
termination of this Lease. The delivery of keys to any employee of Landlord or
its agents or employees shall not operate as a termination of this Lease or a
surrender of the Premises.
(viii) Right of Redemption: Tenant hereby expressly waives any and all
rights of redemption granted by or under any present or future law in the event
of Tenant's eviction or dispossession pursuant to any default under this Lease
or in the event of Landlord's obtaining possession of the Premises by reason of
Tenant's violation of any of the covenants, conditions or agreements contained
herein.
20.1 SUBORDINATION/MORTGAGEE PROTECTION:
A. Subordination: This Lease is subject and subordinate to all ground or
underlying leases, mortgages and deeds of trust which now affect the Premises or
which affect any ground or underlying leases and all renewals, extensions,
modifications or amendments thereof. This Lease may, at Landlord's option, be
made subordinate to any future ground or underlying leases, mortgages or trust
deed which may affect the Premises or which may affect the ground or underlying
leases provided, however, that the mortgagee or trust deed beneficiary or the
lessor in any such ground or underlying lease shall agree to recognize this
Lease in the event of foreclosure of Landlord's interest, provided Tenant is not
in default. Tenant further agrees to execute and deliver such instruments as may
be necessary or proper to effect the foregoing and, if Tenant fails to do so
within ten (1) days after written demand therefor, such failure shall be a
material breach of this Lease. Notwithstanding anything herein to the contrary,
upon request of Landlord, Tenant agrees to execute any appropriate instrument
making this Lease and the leasehold estate created herein superior to the lien
of any underlying or ground lease, mortgage or dead of trust.
B. Attornment: If any ground or underlying lease is terminated or deed
of trust is foreclosed, this Lease shall not terminate or be terminated by
Tenant unless Tenant was specifically named in any termination or a
foreclosure judgment or final order. If any such ground or underlying lease
is terminated or if any such mortgage or dead of trust is foreclosed, Tenant
agrees that Tenant will enter into a new lease covering the Premises for the
remainder of the Lease term on the same terms, conditions and rent as stated
in this Lease with, and at the election of the holder of any superior lease
or, if there is no superior lease in existence, with and at the election of
the holder of the fee title to the real property of which the Premises forms
a part; or at the request of the aforesaid parties in the order stated, to
attorn to them and to execute and deliver at any time and from time to time
upon such request any instrument which may be necessary or appropriate to
evidence such attornment. Landlord hereby makes no warranties or
representations that any attornment which Tenant herein agrees to make will
be accepted and recognized by any of the parties to whom such attornment is
made.
C. Mortgage Protection: If Landlord is in default under this Lease,
Tenant will accept cure and any default by any holder of any underlying or
ground lease or mortgage or deed of trust (the "Holder") whose name and address
shall have been furnished to Tenant in writing. Tenant may not terminate this
Lease for Landlord's default unless Tenant has given notice thereof to each such
Holder and the default is not cured within thirty (30) days thereafter or such
greater time as may be reasonably necessary to cure such default. A default
which cannot reasonably be cured within said 30-day period shall be deemed cured
within said period if work necessary to cure the default is commenced within
such time and proceeds diligently thereafter until the default is cured. If any
Holder should require, as a condition of any underlying or ground lease,
mortgage, or deed of trust, a modification of the provisions of this Lease,
Tenant shall approve and execute any such modification promptly after such
request, provided no such modification shall relate to the rent payable
hereunder, or the length of the term hereof or otherwise materially after the
rights or obligations of Tenant hereunder.
21.1 QUIET ENJOYMENT. Landlord covenants that if Tenant shall not be in default
in the performance of all the terms, covenants, conditions, provisions and
agreements required of Tenant under this Lease, Landlord or anyone claiming by
or through Landlord will not disturb Tenant's quiet enjoyment of the Premises,
subject, however, to the terms of this Lease and of the ground and underlying
leases, mortgages and deeds of trust which may exist from time to time.
22.2 ESTOPPEL CERTIFICATES: Tenant agrees that, at any time and from time to
time upon not less than ten (10) days prior notice by Landlord, Tenant will
execute, acknowledge and deliver to Landlord a statement in writing certifying
that this Lease is unmodified and in full force and effect (or if there have
been modifications, that the same is in full force and effect as modified and
stating the modifications), and the dates to which the minimum monthly rent,
additional rent and other charges have been paid in advance, if any, and stating
whether or not to the best knowledge of the signer of such certificate. Landlord
is in default in the performance of any covenant, agreement or condition
contained in this Lease and, if so, specifying each such default of which the
signer may have knowledge, it being intended that any such statement delivered
pursuant to this Paragraph 22.1 may be relied upon by any prospective purchaser
or mortgagee of the Premises or any other person designed by Landlord. Tenant's
failure to deliver said statement in the time required shall be conclusive upon
Tenant that: (i) the Lease is in full force and effect, without modification
except as may be represented by Landlord; (ii) there are no uncured defaults in
Landlord's performance and Tenant has no right of offset, counterclaim or
deduction against Rent under the Lease; and (iii) no more than one month's rent
has been paid in advance.
23.1 LANDLORD'S RESERVED RIGHTS:
A. Entry by Landlord: Landlord may enter the Premises at all
reasonable times with twenty-four (24) hours verbal notice to: inspect the
same: exhibit the same to prospective purchasers, lenders or tenants;
determine whether Tenant is complying with all of its obligations under this
Lease; to post customary "For Sale," "For Lease" and similar types of signs:
post notices of nonresponsibility; and make repairs or improvements in or to
the Premises or the building as Landlord deems necessary or proper, provided,
however, that Landlord shall exercise any such rights so as to cause as
little interference to Tenant as is reasonably possible. Tenant hereby
waives any claim for damages for any injury or inconvenienct to, or
interference with Tenant's business, any loss of occupancy or quiet enjoyment
of the Premises or any other loss occasioned by such entry. Landlord may have
to retain a key with which to unlock all of the doors in, on or about the
Premises (excluding Tenant's vaults, safes and similar areas designated by
Tenant in writing in advance), and Landlord shall have the right to use any
and all means by which Landlord may deem proper to open such doors to obtain
entry to the Premises, and any entry to the Premises obtained by Landlord by
any such means, or otherwise, shall not under any circumstances be deemed or
construed to be a forcible or unlawful entry into or a detainer of the
Premises or an eviction, actual or constructive, of Tenant from any part of
the Premises.
B. Easements: Landlord shall have the right to grant public utility
easements and other rights on, over and under the Premises without any abatement
in rent, provided that such rights do not unreasonable interfere with Tenant's
business operations on the Premises.
C. Configuration of Common Area: Landlord shall also have the right at
any time to change the number, size, location or arrangement of entrances or
passageways, parking areas, landscaped areas, exterior walls, or other common
area parts of the Complex.
D. Name and Address of Complex: Landlord may at any time change the name,
number or designation by which the Complex is
10
commonly known, and none of the foregoing shall be deemed an actual or
constructive eviction of Tenant, nor shall it entitle Tenant to any reduction of
rent or result in any liability of Landlord to Tenant. Tenant hereby agrees that
it shall not use the name of the Complex for any purpose other than as the
address of the business conducted by Tenant in the Premises without first
obtaining the written consent of Landlord.
24.1 LIMITATION OF LIABILITY, TRANSFER OF LANDLORD'S INTEREST:
A. Limitation of Landlord's Liability: Tenant agrees to look only to the
equity of Landlord in the Premises or the Complex and not to Landlord personally
with respect to any obligations or payments due or which may become due from
Landlord hereunder, and no other property or assets of Landlord or any partner,
joint venture, officer, director, shareholder, agent, or employee of Landlord,
disclosed or undisclosed, shall be subject to levy, execution or other
enforcement procedure for the satisfaction of Tenant's claims under or with
respect to this Lease, and no partner, officer, director, shareholder, agent or
employee of Landlord shall be personally liable in any manner or to any extent
under or in connection with this Lease, if at any time the holder of Landlord's
interests hereunder is a partnership or joint venture, a deficit in the capital
account of any partner or joint venturer shall not be considered an asset of
such partnership or joint venture.
B. Sale by Landlord: In the event of a sale or conveyance of the
Landlord's interest in the Premises of the Complex, Landlord shall thereafter
be released from any further liability for any of the terms, covenants or
conditions (express or implied) herein contained in favor of Tenant; and Tenant
agrees thereafter to look solely to the successor in interest of Landlord for
the performance of any of Landlord's obligations hereunder. This Lease and
Tenant's rights hereunder shall not be affected by any such sale or conveyance,
and Tenant agrees to attorn to the successor in interest of such transferor.
25.1 HOLDOVER TENANCY: If Tenant holds over after expiration of the Lease term,
such tenancy shall be from month-to-month only at Landlord's sole, exclusive and
conclusive election, and not a renewal hereof or an extension of any further
term, and in such case rent shall be payable at the time specified in Paragraph
4.1 and in an amount to be determined by Landlord, but not less than 150% of all
sums due and payable under this Lease for the last month of the Lease term, and
such monthly rent may be increased upon thirty (30) days prior written notice to
Tenant. However, if Landlord has previously notified Tenant at least three (3)
days prior to the expiration of the term of this Lease that Landlord shall not
permit Tenant to hold over, then if Tenant holds over Tenant shall be considered
a trespasser and Landlord may immediately file suit for unlawful detainer
without further notice to Tenant. If Landlord permits such holdover, then the
month-to-month tenancy shall be subject to every other term, covenant, condition
and agreement contained herein. Further, if the Premises is not surrendered at
the end of the Lease term, or any renewal or extension thereof, Tenant shall be
responsible to Landlord for all damage which Landlord shall suffer by reason
thereof, and Tenant shall indemnify, hold harmless and defend Landlord from all
claims made by a successor tenant resulting from Landlord's delay in delivering
possession of the Premises to such successor tenant.
26.1 NOTICES: All notices which Landlord or Tenant may be required, or may
desire, to serve on the other may be served personally, or by registered or
certified mail, return receipt requested, postage prepaid, addressed to the
Landlord at Landlord's address for notices described in Paragraph 1.1
subparagraph H or to Tenant at Tenant's address described in Paragraph 1.1,
subparagraph H or from and after the commencement date, to the Tenant at the
Premises whether or not Tenant has departed from, abandoned or vacated the
Premises, or addressed to such other address or addresses as either Landlord or
Tenant may from time to time designate to the other in writing.
27.1 GENERAL PROVISIONS:
A. Entire Agreement: This Lease and the attached Addendum, if any,
consisting of Articles 28.1 through 32.1, inclusive, contain all of the
agreements and understandings relating to the leasing of the Premises and the
obligations of Landlord and Tenant in connection with such leasing. Landlord
has not made, and Tenant is not relying upon, any warranties, or
representations, promises or statements made by Landlord or any agent of
Landlord, except as expressly set forth herein. This Lease supersedes any and
all prior agreements and understandings between Landlord and Tenant and alone
expresses the agreement of the parties.
B. Amendments: This Lease shall not be amended, changed or modified in
any way unless in writing executed by Landlord and Tenant. Landlord shall not
have waived or released any of its rights hereunder unless in writing executed
by Landlord.
C. Successors: Except as expressly provided herein, the Lease and the
obligations of Landlord and Tenant shall bind and benefit the successors and
assigns of each of the parties.
D. Force Majeure: Landlord shall incur no liability to Tenant, and shall
not be responsible for any failure to perform any of Landlord's obligations
hereunder, if such failure is caused by reason of strike, other labor trouble,
governmental rule, regulations, ordinance, statute or interpretation, or by
fire, earthquake, civil commotion, or any and all other causes beyond the
reasonable control of Landlord. The amount of time for Landlord to perform any
of Landlord's obligations shall be extended for the amount of time Landlord is
delayed in performing such obligation by reason of such force majeure
occurrence.
E. Survival of Obligations: Any obligations of Tenant accruing prior to
the expiration of this Lease shall survive termination of the Lease, and Tenant
shall promptly perform all such obligations whether or not the Lease term has
expired.
F. Governing Law: This Lease shall be governed by and construed in
accordance with, the laws of the State of Colorado.
G. Severability: In the event any provision of this Lease is found to be
unenforceable, the remainder of this Lease shall not be affected, and any
provision found to be invalid shall be enforced to the extent permitted by law.
The parties agree that in the event two different interpretations may be given
to any provision hereunder, one of which will render the provision
unenforceable, and one of which will render the provision enforceable, the
interpretation rendering the provision enforceable shall be adopted.
H. Captions: All captions, headings, titles and numerical references are
for convenience only and shall have no effect on the interpretation of this
Lease.
I. Construction: Tenant acknowledges that it has read and reviewed this
Lease and that it has had the opportunity to confer with counsel in the
negotiation of this Lease. Accordingly, this Lease shall be construed neither
for nor against Landlord or Tenant, but shall be given a reasonable
interpretation in accordance with the meaning of its terms and the intent of the
parties.
J. Independent Covenants: Each covenant, agreement, obligation or other
provision of this Lease to be performed by Tenant are separate and independent
covenants of Tenant, and not dependent on any other provision of the Lease.
K. Number and Gender. All terms and words used in this Lease, regardless
of the number or gender in which they are used, shall be deemed to include the
appropriate number and gender, as the context may require.
L. Time is of the Essence: Time is of the essence of this Lease and the
performance of all obligations hereunder.
M. Joint and Several Liability. If Tenant comprises more than one person
or entity, or if this Lease is guaranteed by any party, all such persons shall
be jointly and severally liable for payment of rents and the performance of
Tenants obligations hereunder. As to a tenant which consists of husband and
wife, the obligations shall extend individually to their sole and separate
property as well as community property.
00
X. Xxxxxxxxx' Fees: If Tenant or Landlord shall bring any action for any
relief against the other, declaratory or otherwise, arising out of this Lease,
including, without limitation, any suit by Landlord for the recovery of rent or
possession of the Premises, the losing party shall pay the successful party the
court costs and reasonable attorneys' fees incurred therefor and such expenses
shall be paid whether or not such action is prosecuted to judgment. Should
Landlord, without fault on Landlord's part, be made a party in any litigation
instituted by Tenant or by any third party against Tenant, or by or against any
person holding under or using the Premises by license of Tenant (for the
purposes of this Paragraph the "Licensee") or for the foreclosure of any lien
for labor or material furnished to or for Tenant or any Licensee or otherwise
arising out of or resulting from any act or transaction of Tenant or of any
Licensee, and Tenant agrees and covenants to save and hold Landlord harmless
from any judgment rendered against Landlord or the Premises or any part of
either thereof, and to protect, defend and indemnify Landlord as to any and all
costs and expenses, including attorneys' fees and court costs, incurred by
Landlord in or in connection with such litigation.
Q. Surrender of Lease: The voluntary or other surrender of this Lease by
Tenant, or a mutual cancellation thereof, shall not work a merger, and shall, at
the option of the Landlord, terminate all or any existing subleases or
subtenancies, or may, at the option of Landlord, operate as an assignment to it
of any or all such subleases or subtenancies.
P. Tenant's Authority: If Tenant is a corporation, each individual
executing this Lease on behalf of said corporation represents and warrants
that he or she is duly authorized to execute and deliver this Lease on behalf
of said corporation in accordance with a duly adopted resolution of the Board
of Directors of said corporation or in accordance with the By-Laws of said
corporation, and that this Lease is binding upon said corporation in
accordance with its terms; and at the time of execution of this Lease. Tenant
shall, at Landlord's option, deliver to Landlord a certified copy of a
resolution of the Board of Directors of siad corporation authorizing or
ratifying the execution of this Lease. If Tenant is a partnership and less
than all partners of the partnership execute this Lease, each individual
executing this Lease on behalf of said partnership represents and warrants
that he or she is duly authorized to execute and deliver this Lease on behalf
of said partnership in accordance with the partnership agreement of said
partnership.
Q. Brokerage: Tenant covenants and represents that it has negotiated this
Lease directly with the Landlord and has not acted by implication to authorize,
nor has authorized any real estate broker, finder or salesman to act for it in
these negotiations other than the Broker (as defined in Paragraph 1.1,
subparagraph K). Tenant agrees to hold Landlord harmless from and to defend and
indemnify Landlord against any and all claims, cost, liability and/or expense
(including attorneys' fees and court costs) incurred by Landlord in connection
with any claim by any real estate broker or salesman or finder (other than the
Broker) for a commission or finder's fee as a result of Tenant's entering into
this Lease. The provisions contained herein shall survive the termination of
this Lease.
R. No Third Party Beneficiaries: Unless otherwise expressly specified
herein, no term, covenant, condition or provision of this Lease shall be
construed to be for the benefit of any other third party or entity (including
any other tenant or occupant of the Complex, if any).
S. Exhibits: The exhibits described in Paragraphs 1.1 and 2.1 are
incorporated in the Lease by reference and made a part hereof as if fully set
forth herein, AND THOSE LISTED BELOW.*
T. Offer to Lease: The submission of this Lease to Tenant or its broker
or other agent, does not constitute an offer to Tenant to lease the Premises.
The instrument shall have no force and effect until it is executed and delivered
by Tenant to Landlord and executed by Landlord.
IN WITNESS WHEREOF, The parties hereto have executed this Lease as of the date
stated below.
LANDLORD TENANT
Transamerica Occidental Life Insurance ACI Systems Inc., a Colorado
Company, a California corporation corporation
By: By:
----------------------------------- ----------------------------------
Its: Its:
----------------------------------- ----------------------------------
Date: Date:
--------------------------------- --------------------------------
By: By:
----------------------------------- ----------------------------------
Its: Its:
----------------------------------- ----------------------------------
Date: Date:
--------------------------------- --------------------------------
* Exhibit "B" - Personal Guaranty - Specifically Deleted
Exhibit "C" - Space Plan
Exhibit "D" - Rules and Regulations
ADDENDUM
Addendum to that certain lease (the "Lease") dated, for reference purposes only,
JANUARY 22, 1996 by and between TRANSAMERICA OCCIDENTAL LIFE INSURANCE COMPANY,
A CALIFORNIA CORPORATION ("Landlord"), and ACI SYSTEMS INC., A COLORADO
CORPORATION, for the premises commonly known as 14 INVERNESS DRIVE EAST,
BUILDING F, XXXXX 000, 000 XXX 000, XXXXXXXXX, XXXXXXXX 00000 (the "Premises").
28.1 COMMON AREA MAINTENANCE COSTS. Paragraph 5.1 B (ii)(a) of this Lease
shall be deleted in its entirety and replaced with the following:
Tenant shall reimburse Landlord Tenant's proportionate share of the
amount of increases in common area maintenance costs for the Premises in the
manner and at the times stated below if, for any calendar year during the Lease
term after the Base Year described in paragraph 1.1, subparagraph D, the
respective common area maintenance costs are greater than the amount of common
area maintenance costs for the Base Year. The term "common area maintenance
costs" is defined in Paragraph 5.1, subparagraph B (i). Tenant shall pay
Landlord on the first day of each calendar month of the term of this lease an
amount computed by multiplying the actual area of the Premises by the difference
between Landlord's estimate of the common area maintenance costs per square foot
per month for the then current calendar year and the common area maintenance
costs per square foot per month for the Base Year. The foregoing rate per
square foot may be adjusted by Landlord on the basis of Landlord's experience
and anticipated costs from time to time during any given calendar year.
29.1 TENANT IMPROVEMENTS. Tenant accepts the Premises in its "as-is"
condition except, that Landlord agrees to complete the improvements for the
Premises shown on EXHIBIT C, which is attached hereto and incorporated herein by
this reference (the "Tenant Improvements"), using similar materials to those
already existing in the Premises. Except as specifically set forth below, the
Tenant Improvements shall be constructed at Landlord's sole cost and expense.
a. Landlord shall commence to construct the Tenant Improvements and
shall use reasonable efforts to Substantially Complete, as defined below,
construction thereof on or before the Commencement Date, subject, however, to
extensions equal to the delays suffered by Landlord and caused by strikes,
lockouts, fire or other casualty loss, acts of God, unavailability of materials,
hostile or war-like action, riot, or other causes beyond Landlord's reasonable
control. If any request(s) for change(s) to materials, labor or the Space Plans
("Changes") made by Tenant (which Changes must be approved in writing by
Landlord) or delays caused in whole or in part by Tenant result in any increase
in the costs of completing the Tenant Improvements, such increased costs shall
be at the sole cost and expense of Tenant and paid by Tenant to Landlord from
time-to-time upon demand by Landlord.
b. Tenant's obligation to pay rent for the Premises under this Lease
shall not commence until the date the Premises is Substantially Complete;
provided, however, that if Landlord shall be delayed in rendering the Premises
Substantially Complete by the Commencement Date set out in Paragraph 1.1B of
this Lease as a result of one or more of the following:
(i) Tenant's failure to devote the time or furnish the
information required in connection with the space plan for the Tenant
Improvements; or
(ii) Tenant's changes to the Tenant Improvements in the space
plan relating thereto, or in the plans for such changes (notwithstanding
Landlord's approval of any such changes); or
(iii) Any other act or omission by Tenant or its agents;
then and in any such event, Tenant's obligation to commence the payment of rent
under this Lease on the Commencement Date provided for in Paragraph 1.1B shall
not be affected or deferred of such delay.
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c. If Landlord is unable to cause the Premises to be Substantially
Completed by the Commencement Date for reasons other than those not set out in
subsection (i) through (iii) of Paragraph b above, then, as Tenant's sole
remedy, the Commencement Date of this Lease shall be on the first date the
Premises is Substantially Complete; provided, however if the date the Premises
is Substantially complete is not the first day of a month, then the Commencement
Date shall be the first day of the month immediately following the date the
Premises is Substantially Complete. The period between the date the Premises is
Substantially Complete and the Commencement Date shall be deemed to be the
Interim Lease Term and Tenant shall be obligated to pay rent for such Interim
Lease Term on a pro rata basis based on the current minimum monthly rent and
additional rent for the first full month of the Lease term following the
Commencement Date. Tenant shall hold the Premises during the Interim Lease Term
under all of the other terms and conditions of the Lease. In the event the
Commencement Date set out in Paragraph 1.1B of this Lease is changed as provided
for in this Paragraph c, then the Lease Expiration Date as set forth in
Paragraph 1.1B of this Lease, shall be extended through the end of the thirty-
sixth (36th) month following Commencement Date. Tenant shall, at Landlord's
request, execute an Amendment to Lease stating the Commencement Date in which
the parties specify the Commencement Date and Expiration Date of the Lease term.
"Substantially Complete" as used herein shall mean the date on
which Landlord shall have substantially completed all the Tenant Improvements to
the extent that only minor details of construction (so-called "punch-list"
items) and minor mechanical adjustments remain to be done to the Premises, which
punch-list items shall then be completed within a reasonable period following
the delivery of the punch-list to Landlord.
d. From and after completion of construction of the Tenant
Improvements, Tenant shall be solely responsible for the repair and maintenance
thereof as part of the Premises as set forth in Paragraph 6.1 of this Lease.
e. Landlord's approval of Tenant's plans for Landlord's work shall
create no responsibility or liability on the part of Landlord for their
completeness, design sufficiency, or compliance with all laws, rules and
regulations of governmental agencies or authorities.
30.1 RENT ABATEMENT. Notwithstanding the provisions of Paragraph 1.1c(i)
of the Lease, during the period commencing May 1, 1996 and ending May 31, 1996
(the Rent Abatement Period), Tenant shall not be required to pay the minimum
monthly rent specified therein. In addition to the foregoing statement of
minimum monthly rent, Tenant shall not be required to pay any other rent (as
defined in Paragraph 4.1 A of the Lease) attributable to and payable by Tenant
during the Rent Abatement Period.
31.1 OPTION TO EXTEND. Subject to the conditions stated in this Paragraph
31.1, Tenant shall have the right to extend the term of this Lease for one (1)
successive five (5) year option term. Tenant must exercise the right to extend
the term of this Lease by delivering to Landlord written notice of such exercise
which must be sent certified mail, return receipt requested with postage
prepaid, no earlier than six (6) calendar months but no later than ninety (90)
days prior to the respective commencement date of the option period. The
commencement date of the option term is June 1, 2001.
a. Rent During Option Term: If Tenant exercises the right to extend
the Lease for the option term, the rent payable during the option term, will be
at the fair market value of similar premises in the complex as of the
commencement date of the respective option term and as determined by Landlord
in its sole discretion. Within 30 days of Landlord's receipt of Tenant's
notice of its intent to exercise its option, Landlord shall notify Tenant of
the then market rental rate. Tenant shall have five business days to either
accept or reject the same. If Tenant rejects the rental rate, the Lease shall
expire by its terms upon expiration of the Lease term. If Tenant approves the
rental rate, the Lease shall be extended accordingly. Failure by Tenant to
give notice in accordance herewith, time being of the essence, shall render
this option null and void.
b. Effect of Default on Option to Extend: The right to extend the
term of the Lease provided in this Paragraph 31.1 cannot be exercised if Tenant
is in default of any of the terms, covenants and conditions of this Lease. If
the time to exercise such option lapses and Tenant has not cured any default
prior to the last day of notice period specified above, then any
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subsequent attempt to exercise the option shall be deemed null and void and the
Lease shall terminate upon the expiration date of the then current term. If
Tenant defaults in the performance of any of the terms, covenants and conditions
of this Lease during the period from the timely and proper exercise of its right
to extend the term to the commencement date of the option term immediately
following such date of exercise, then the exercise of the right to extend the
term of the Lease shall be deemed null and void and the Lease shall terminate
upon the expiration of the then current term.
c. No Withdrawal: Once Tenant has timely and properly exercised its
right to extend the term of this Lease by delivery of written notice to Landlord
and provided that Tenant is otherwise in compliance with the provisions of this
Paragraph 31.1, Tenant may not subsequently withdraw its exercise.
d. Option to Extend is Nonassignable: It is expressly understood and
agreed that the right to extend the term of this Lease, provided in this
Paragraph 31.1 is nonassignable and may not be exercised by anyone, or in favor
of anyone, other than the initial Tenant specified on Page 1 of this Lease and
identified above. This entire Paragraph 31.1 shall be deemed stricken from the
Lease and of no force and effect if said initial Tenant assigns its interest in
this Lease.
e. Tenant's Possession as a Condition Precedent: Tenant must be in
possession of the Premises and must remain in possession of the Premises and
operating its business from the Premises at the time Tenant delivers written
notice of the exercise of any option provided in this Paragraph 31.1 through and
including the commencement date of any respective option(s). If Tenant is not
in possession, fails to remain in possession and/or fails to operate its
business from the Premises throughout such interim period(s), then Tenant shall
not have the right to extend the term of this Lease and any prior exercise of
such right shall be deemed null and void and the Lease shall terminate upon the
expiration of the then current term.
32.1 RIGHT OF FIRST REFUSAL TO EXPAND. During the term of the Lease and
subject to the conditions stated in this Paragraph 2, Tenant shall have a
continuing right of first refusal to expand the Leased Premises into the space
adjacent and to the east of the Premises consisting of approximately 3,892 s.f.,
(the "Expansion Space"), such premises currently being more particularly shown
in Exhibit A hereto. Tenant must exercise the right to expand into such space
by delivering to Landlord written notice of such exercise within 48 hours
following Landlord's written notice to Tenant that Landlord has received a third
party offer to lease all or part of the Expansion Space. Tenant's failure to
give Landlord timely notice of its intent to expand into the Expansion Space
shall be deemed to be refusal of that space; and the rights granted hereby with
respect to the Expansion Space shall terminate and be of no further force or
effect.
a. Rent for Expansion Space: If Tenant exercises its right to expand the
Leased Premises into the Expansion Space shall be both (i) equal to or better
than, the third party offer and (ii) equal to, or better than the terms of the
Lease. Tenant shall also pay Tenant's increased proportionate share of the
Basic Cost in Additional Rental as specified in Paragraph 6 of the Lease.
b. Effect of Default on Right of First Refusal to Expand: The right of
first refusal to expand the Lease Premises into the Expansion Space cannot be
exercised if Tenant is in default of any of the terms, covenants and conditions
of this Lease. If the time to exercise such right of first refusal lapses and
Tenant has not cured any default prior to the last date of notice period
specified above, then any subsequent attempt to exercise the right of first
refusal shall be deemed null and void.
c. No Withdrawal: Once Tenant has timely and properly exercised its right
of first refusal to expand the Leased Premises by delivery of written notice to
Landlord, Tenant may not subsequently withdraw its exercise.
d. Right of First Refusal is Nonassignable: It is expressly understood
and agreed that the right of first refusal relating to the Expansion Space is
nonassignable and may not be exercised by anyone, or in favor of anyone, other
than the initial Tenant specified on Page 1 of the Lease and identified above.
15
e. Tenant's Possession as a Condition Precedent: Tenant must be in
possession of the Leased Premises and must remain in possession of the Leased
Premises and operating its business from the Leased Premises at the time Tenant
delivers written notice of the exercise of any right provided herein. If Tenant
is not in possession, fails to remain in possession and/or fails to operate its
business from the Leased Premises throughout the term of this Lease, than Tenant
shall not have the right of first refusal to the Expansion Space, and any prior
exercise of such right shall be deemed null and void.
16
EXHIBIT "A"
"The Premises"
00 Xxxxxxxxx Xxxxx Xxxx, Xxxxxxxx X, Xxxx(x) 000, 116 & 120
Xxxxxxxxx, Xxxxxxxx 00000
[FLOORPLAN]
Expansion Space, the Premises, First Floor Plan, Second Floor Plan, Key Plan
17
EXHIBIT "A"
Page 2
PROPERTY ADDRESS: 00 Xxxxxxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
LEGAL DESCRIPTION
Parcel A:
Xxx 0.
Xxxxx 0.
0xx Xxxxxxx Xxxx of Inverness Subdivision Filing No. Two
Parcel B:
That portion of Xxx 0.
Xxxxx 0.
0xx Xxxxxxx xxxx of Inverness Subdivision Filing No. Two.
Described as follows:
Beginning at the southernmost corner of said lot being the true point of
beginning;
Thence along the boundary of said Xxx 0, X 00 XXX. 31' 53" W 411.78 feet;
Thence continuing along said boundary N 23 DEG. 06' 23" E 602.27 feet;
Thence leaving said boundary S 66 DEG. 53' 37" E 497.20 feet;
Thence S 82 DEG. 12' 22" E 30.12 feet to a point on the west right of way of
Inverness Place East;
Thence along said right of way on a curve to the left whose tangent bearing is S
7 DEG 47' 38" W, said curve having a radius of 241.50 feet, a central angle of
22 DEG. 09' 12", and an arc distance of 93.38 feet to a point on said boundary
of Lot 2;
Thence leaving said right of way along the said boundary of Xxx 0, X 00 XXX. 40'
25" W 45.86 feet;
Thence continuing along said boundary S 39 DEG. 44' 23" W 207.39 feet;
Thence continuing along said boundary S 33 DEG. 28' 07" W 378.89 feet;
to the true point of beginning.
18
EXHIBIT "C"
00 Xxxxxxxxx Xxxxx Xxxx, Xxxxxxxx X, Xxxx(x) 000, 116 & 120
Xxxxxxxxx, Xxxxxxxx 00000
[FLOORPLAN]
ACI SYSTEMS, INC.
14 INVERNESS DRIVE EAST
SUITES F112-120
ENGLEWOOD, COLORADO
EXHIBIT "D"
RULES AND REGULATIONS
00 Xxxxxxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
1. Except with the prior written consent of the Landlord, Tenant shall not
sell or permit the sale of any merchandise at retail in or from the
Premises. Tenant shall not occupy or permit any portion of the Premises to
be occupied for any business other than that specifically provided for in
this lease. No Tenant shall at any time occupy any part of the Building or
Premises as sleeping or lodging quarters.
2. Tenant shall not do or permit anything to be done on the Premises, or
bring or keep anything therein, which shall in any way obstruct or
interfere with the rights of other tenants, or in any way injure or annoy
them, or conflict with the regulations of the Fire Department or fire laws,
or with any insurance policy upon the Building or any part thereof, or
with any rules and ordinances established by the Board of Health or other
governmental authority.
3. Tenant shall not sweep or throw or permit to be swept or thrown from the
Premises any dirt or other substance into any of the corridors or halls, or
out the doors or stairways of the Building. No Tenant shall use, keep or
permit to be used any foul or noxious gas or substance in the Premises, or
permit or suffer the Premises to be occupied or used in a manner offensive
or objectionable to Tenant or other occupants of the Building by reason of
noise, odors and/or vibrations.
4. Tenant shall not store, nor cause to be stored, any material, substance,
equipment, supplies or vehicles outside or adjacent to the Premises
described in this Lease.
5. Tenant and its employees shall not go upon the roof of the Building without
prior written consent of the Landlord.
6. No animals, birds or reptiles may be brought in or kept in or about the
Premises.
7. Children are not allowed on the Premises or in the Building unless escorted
by an adult.
8. No cooking shall be done or permitted by Landlord on the Premises, except
that the preparation of coffee, tea, hot chocolate and similar items for
the Tenant and its employees and business visitors shall be permitted.
9. Canvassing, soliciting and peddling in the Building or on the Premises are
prohibited and Tenant shall cooperate to prevent the same.
10. Tenant shall not use or keep on the Premises any kerosene, gasoline or any
inflammable, combustible or explosive fluid, chemical or substance or use
any method of heating or air conditioning other than that authorized by the
Lessor.
11. No machinery of any kind, including air conditioning units or other similar
apparatus, or vending machines of any description, shall be installed,
maintained or operated on the leased Premises without the written consent
of Landlord.
12. Tenant shall give prompt notice to Landlord of any accidents to or defects
in plumbing, electrical fixtures, heating or cooling apparatus or other
utilities.
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13. The toilet rooms, toilets, urinals, wash bowls and other apparatus serving
the Premises shall not be used for any purpose other than that for which
they were constructed, and no foreign substance of any kind whatsoever
shall be thrown therein. All damage resulting from any misuse or the
fixtures shall be borne by Tenant to the extent its servants, employees,
agents, visitors or licensees shall have caused it.
14. No painting shall be done, nor shall any alterations be done to any part of
the Premises by installing or changing any partition or partitions, doors
or door, windows or window, nor shall there by any nailing, boring or
screwing into the walls, woodwork or plaster without the consent of the
Landlord. Landlord shall not permit any contractor or other person making
any authorized alternations, additions or installations within the Premises
to use the hallways, lobby or corridors as storage or work areas without
the prior written consent of Landlord. Tenant shall be liable for and
shall pay the expense of any additional cleaning or other maintenance
required to be performed by Landlord as a result of the transportation or
storage of materials or work performed on or near the Premises by or for
Tenant.
15. Tenant will refer all contractors, contractor's representatives and
installation technicians, rendering any service on or to the leased
premises for Tenant to Landlord for Landlord's approval and supervision
before performance of any contractual service. This provision shall apply
to all work performed in the Building including installation of telephones,
telegraph equipment, electrical devices and attachments and installations
of any nature affecting floors, walls, woodwork, trim, windows, ceiling,
equipment of any other physical portion of the Building.
16. Lessor shall have the right to determine or limit the weight, size and
position of all safes and other heavy equipment brought onto the Premises.
Safes or other heavy objects shall, if considered necessary by Landlord,
stand on wooden strips of such thickness as is necessary to properly
distribute their weight. Landlord will not be responsible for loss or for
damage to any such safe or property or their contents from any cause, and
all damage done to the Premises by moving or maintaining any such safe or
property shall be repaired at the expense of the Tenant.
17. The sidewalks, halls, passages, exits, entrances, and stairways in and
around the Premises shall not be obstructed by Tenant or used by them for
any purpose other than for ingress to and egress from the leased Premises.
The halls, passages, exits, entrances, stairways, balconies 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, shall be prejudicial to the safety,
character, reputation and interest of the Building and its tenants,
provided, that nothing herein contained shall be construed to prevent such
access to persons with whom Tenant normally deals in the ordinary course of
its business unless such persons are engaged in illegal activities.
18. Landlord agrees to furnish Tenant two keys without charge; additional keys
will be furnished at a nominal charge. Tenant shall not alter any lock nor
install any new or additional locks or any bolts on any door of the
Premises without written consent of the Landlord. If Landlord shall give
its consent, Tenant shall in each case furnish the Landlord with a key for
any such lock.
Tenant must, upon the termination of this lease, restore to Landlord all
keys or stores, offices and toilet rooms, either furnished to, or otherwise
procured by, Tenant and in the event of the loss of any keys so furnished,
Tenant shall pay to Landlord the cost of replacing the same or of changing
the lock or locks opened by such lost key if Landlord shall deem it
necessary to make such change. Landlord will not permit entrance to
Tenant's offices by use of pass key controlled by Landlord, to any person
at any time without written permission by Tenant, except employees,
contractors, or service personnel directly supervised by Landlord.
21
19. Tenant shall insure the windows and doors of the Premises are closed and
securely locked before leaving the Premises. Tenant must observe strict
care and caution that all water faucets or other apparatus are entirely
shut off before Tenant or Tenant's employees leave the Premises so as to
prevent damage, and for any such default or carelessness Tenant shall
make good all injuries sustained by other tenant or Landlord.
20. The requirements of Tenant will be attended to only upon application at the
office of the Building Manager. Employees of Landlord shall not perform
any work or do anything outside of their regular duties unless under
special instructions from the Landlord.
21. Landlord will not be responsible for lost or stolen personal property,
equipment, money or jewelry from Tenant's area or public rooms regardless
of whether such loss occurs when area is locked against entry or not.
22. The directorie of the Building will be provided exclusively for the display
or the name and location of tenants only and Landlord reserves the right to
exclude any other names therefrom.
23. Tenant, its employees, agents or invitees shall comply with all direction
posted in and for the use of the common parking areas.
24. Landlord shall have the right, exercisable without notice and without
liability to Tenant to change the name and the street address of the
Building of which the Premises are a part.
25. Tenant and its employees, agents and invitees shall park their vehicles
only in those parking areas designated by Landlord. Tenant shall not leave
any vehicles in a state of disrepair (including without limitations, flat
tires, out of date inspection stickers or license plates) in the parking
areas. Tenant shall not park any vehicle, truck, car, trailer or boat in
the parking area for longer than 24 hours without Landlord's prior written
approval. If Tenant or its employees, agents or invitees park their
vehicles in areas other than the designated parking areas for longer than
24 hours, Landlord shall have the right without notice to Tenant to remove
such vehicles at Tenant's expense.
26. The Landlord at all times shall have the right to amend, modify or waive
any of the foregoing Rules and Regulations and to make such other and
future rules and regulations as the Landlord may adopt.
27. The failure of the Landlord to seek redress for violation of, or insist
upon the strict performance of any covenants or conditions of this Lease or
any of the Rules and Regulations set forth above or hereafter adopted by
Landlord, shall not prevent a subsequent act, which would have originally
constituted a violation, from having all the force and effect of any
original violation. The receipt by Landlord of rent with knowledge of the
breach of any covenant of this Lease or breach of these Rules and
Regulations shall not be deemed a waiver of such breach. The failure of
Landlord to enforce any of these Rules and Regulations as set forth above
or hereafter adopted against any Tenant and/or any other Tenant in the
Building shall not be deemed a waiver of any such Rules and Regulations.
28. Landlord shall not be liable to Tenant for violation of any said Rules and
Regulations or the breach of any covenant or condition in any Lease by any
other tenant in the Building.
29. No act or thing done or omitted to be done by Landlord or Landlord's
agent during the term of the Lease which is necessary to enforce these
Rules and Regulations shall constitute an eviction by Landlord nor shall
it be deemed a surrender or acceptance of said Premises, and no agreement
to accept such surrender shall be valid unless in writing signed by
Landlord. No employee of Landlord or Landlord's agent shall have any
power to accept the keys of said Premises prior to the termination of the
leasehold agreement. The delivery of keys to any employee of Landlord or
Landlord's agent shall not be construed as a termination of the Lease or
a surrender of the Premises.
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30. Signage Regulations:
In addition to the signage restrictions placed upon all tenants of the
Inverness area by the restrictive covenants of the property the following
restrictions and regulations shall be made part of any lease contract
consummated at 00 Xxxxxxxxx Xxxxx Xxxx.
a. The main entry sign on Inverness Drive East identifies the property
and its address; 00 Xxxxxxxxx Xxxxx Xxxx. The tenant directory
displays a map of the eight-building complex and lists each tenant
alphabetically. One slot per tenant is permitted.
b. An additional tenant directory is located on Inverness Place East
listing each tenant alphabetically.
c. Each building has an identity sign strategically located for easy
visibility with a letter designation. This identification also
includes a register of each tenant listed alphabetically with building
and suite designations on a name place.
d. Each tenant or suite is identified by a 3" three-digit number attached
to the glass door panel. Each second level entry has a directory
listing the tenant alphabetically. These are used for corporate names
only - no individual listings are permitted unless the tenant occupies
at least half the space for which that directory applies.
e. Addressing: The following is a sample address method:
Company Name
00 Xxxxxxxxx Xxxxx Xxxx
Xxxxxxxx __, Suite __
Xxxxxxxxx, Xxxxxxxx 00000
f. All tenant identity signage must be approved by the Landlord and in
any case will be restricted to the following:
- Any style of lettering is permissible
- All lettering shall be on glass doors or windows
- The glass area used for lettering shall be restricted
to one pane of glass for each 20 feet of frontage of
building.
- All lettering shall be done in white with the
exception of the first letter of the corporate names
which may be at the tenants option.
- Any corporate log, seal or design may be used in
optical colors.
g. Landlord reserves the right to designate all sources furnishing sign
painting and lettering to establish a limitation on sign styles and
format. Tenant shall affix no additional signage not considered
building standard in the Landlord's discretion, without prior written
approval of Landlord.
These Rules and Regulations shall be binding upon heirs, successors,
representatives and assigns of the Tenant.
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