1
EXHIBIT 10.5
OFFICE BUILDING LEASE
This OFFICE BUILDING LEASE ("Lease") is entered into as of the 4th day of
February 2000, by and between XXXX-LSI I, LLC, a Delaware limited liability
company ("Landlord"), and HIGH SPEED ACCESS CORP. , a Delaware corporation
("Tenant").
1. BASIC LEASE TERMS. For purposes of this Lease, the following terms have the
following definitions and meanings:
(a) LANDLORD: XXXX-LSI I, LLC, a Delaware limited liability company .
(b) LANDLORD'S ADDRESS (FOR NOTICES): 0000 Xxxxxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxx, XX 00000, Attention: Xxxxx Xxxxx, or such other place as Landlord may
from time to time designate by notice to Tenant.
(c) TENANT: HIGH SPEED ACCESS CORP., a Delaware corporation
(d) TENANT'S ADDRESS (FOR NOTICES): Before the Commencement Date:
0000 Xxxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000 Attn: Xxxxxxx Xxxxxx
After the Commencement Date, to the Premises, Attn: Xxxxxxx Xxxxxx, or such
other place as Tenant may from time to time designate by notice to Landlord.
(e) DEVELOPMENT: The parcel(s) of real property commonly known as the Jefferson
Corporate Center and located in the City of Littleton (the "City"), County of
Jefferson (the "County"), State of Colorado ("State"), as shown on the site plan
attached hereto as Exhibit "A-I". Tenant acknowledges that Landlord was formed
as a joint venture between Xxxx Development Company ("Xxxx") and Land Securities
Investors, Ltd. ("LSI") to own and develop the Premises, but that LSI is the fee
owner of the Development. While it is Xxxx'x and LSI's present intention to form
separate joint venture entities in connection with potential future development
of other sites within the Development, Xxxx does not own a fee interest in any
of the other sites within the Development.
(f) BUILDING: A three (3) story office building located within the Development,
which Building contains approximately 69,978 Rentable Square Feet (subject to
adjustment as provided in Exhibit "B"), with the street address of 00000 Xxxx
Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000.
(g) PREMISES: Those premises generally shown on the floor plans attached hereto
as Exhibit "A-III", comprising the entirety of the Building, and containing
approximately 69,978 Rentable Square Feet and 67,109 Usable Square Feet (subject
to adjustment as provided in Exhibit "B" and Exhibit "D").
(h) TENANT'S PERCENTAGE: Tenant's percentage of the Building is 100%.
(i) TERM: Five (5) Lease Years and zero (0) Months
(j) ESTIMATED COMMENCEMENT DATE: August 18, 2000
ESTIMATED EXPIRATION DATE: August 17, 2005
(k) COMMENCEMENT DATE: The date on which the Term of this Lease will commence as
determined in accordance with the provisions of Exhibit "C" and as stated on
Exhibit "D".
(l) INITIAL MONTHLY BASE RENT: $92,720.85, subject to adjustment as provided in
Subparagraph 1(m) below and as otherwise provided in this Lease.
(m) ADJUSTMENT TO MONTHLY BASE RENT: Monthly Base Rent will be adjusted in
accordance with the following:
LEASE YEAR OR MONTHS MONTHLY BASE RENT
Months 1-24 $ 92,720.85
Months 25-48 $ 97,677.63
Months 49-60 $100,301.80
1
2
The Monthly Base Rent figures set forth above were calculated based on
the following figures and will be readjusted pursuant to Exhibit B and
reconfirmed as set forth in Exhibit D:
LEASE YEAR OR MONTHS PER SQUARE FOOT RATE
Months 1-24 $15.90
Months 25-48 $16.75
Months 49-60 $17.20
(n) [INTENTIONALLY OMITTED]
(o) SECURITY DEPOSIT: $140,000.00 together with the Letter of Credit as set
forth in the Addendum attached hereto. The Letter of Credit will be delivered by
Tenant to Landlord no later than five (5) business days after mutual execution
of this Lease.
(p) TENANT IMPROVEMENTS: All tenant improvements installed or to be installed by
Landlord or Tenant within the Premises to prepare the Premises for occupancy
pursuant to the terms of the Work Letter Agreement attached hereto as Exhibit
"C".
(q) TENANT IMPROVEMENT ALLOWANCE: $25.00 per Rentable Square Foot of the
Premises, to be applied as provided in the Work Letter Agreement attached hereto
as Exhibit "C".
(r) PERMITTED USE: General office space (which may include in a portion of the
Premises not to exceed 22,000 square feet, for equipment testing, staging a
24-hour, 7-day per week call center help line, and the operation of a computer
network operations center).
(s) PARKING: 315 uncovered employee, visitor and guest parking spaces at no cost
to Tenant during the initial Term of the Lease, subject to the terms and
conditions of Paragraph 32 below and the Rules and Regulations regarding parking
contained in Exhibit "H". Subject to Landlord's construction of the covered
parking spaces (as described in Section 4(c) below) and so long as Tenant leases
the entire Building, the 315 uncovered spaces shall be reserved in Tenant's
favor. Each covered parking space constructed for Tenant's use pursuant to
Section 4(c) below shall correspondingly reduce (one covered space causes a
reduction by one in the allotment of uncovered spaces) the uncovered spaces
committed for Tenant's use hereunder.
(t) BROKER(S): Tenant's Broker - Xxxxxx Real Estate; Landlord's Broker - CB
Xxxxxxx Xxxxx, Inc.
(u) GUARANTOR(S): None
(v) INTEREST RATE: shall mean the greater of ten percent (10%) per annum or two
percent (2%) in excess of the prime lending or reference rate of Xxxxx Fargo
Bank N.A. or any successor bank in effect on the twenty-fifth (25th) day of the
calendar month immediately prior to the event giving rise to the Interest Rate
imposition; provided, however, the Interest Rate will in no event exceed the
maximum interest rate permitted to be charged by applicable law.
(w) EXHIBITS: A through J, inclusive, which Exhibits are attached to this Lease
and incorporated herein by this reference. As provided in Paragraph 3 below, a
completed version of Exhibit "D" will be delivered to Tenant after Landlord
delivers possession of the Premises to Tenant.
(x) ADDENDUM PARAGRAPHS: 40 through 45, inclusive, which Addendum Paragraphs are
attached to this Lease and incorporated herein by this reference.
This Paragraph 1 represents a summary of the basic terms and definitions of this
Lease. In the event of any inconsistency between the terms contained in this
Paragraph 1 and any specific provision of this Lease, the terms of the more
specific provision shall prevail.
2
3
2. PREMISES AND COMMON AREAS.
(a) PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the Premises as improved or to be improved with the Tenant Improvements
described in the Work Letter Agreement, a copy of which is attached hereto as
Exhibit "C". Tenant shall have access to the Premises on a twenty-four hour,
seven days per week basis.
(b) MUTUAL COVENANTS. Landlord and Tenant agree that the letting and hiring of
the Premises is upon and subject to the terms, covenants and conditions
contained in this Lease and each party covenants as a material part of the
consideration for this Lease to keep and perform their respective obligations
under this Lease.
(c) TENANT'S USE OF COMMON AREAS.
(i) BUILDING COMMON AREAS. During the Term of this Lease, Tenant shall
have the right to use, subject to the terms of this Lease, the Rules and
Regulations referenced in Paragraph 32 below and all covenants, conditions and
restrictions now or hereafter affecting the Development, the Building's common
entrances, hallways, lobbies, public restrooms on multi-tenant floors,
elevators, stairways and access ways, loading docks, ramps, drives and platforms
and any passageways and service ways thereto, and the common pipes, conduits,
wires and appurtenant equipment within the Building which serve the Premises
(collectively, "Building Common Areas"). So long as Tenant leases the entirety
of the Building, Tenant's use of the Building Common Areas shall only be in
common with Landlord and its respective contractors, invitees, employees and
agents. At such time as Tenant no longer leases the entire Building, then
Tenant's right to use the Building Common Areas shall be in common with Landlord
and all persons, firms and corporations conducting business in the Development
and their respective customers, guests, licensees, invitees, subtenants,
employees and agents (collectively, "Development Occupants"); and
(ii) DEVELOPMENT COMMON AREAS. During the Term of this Lease, Tenant
shall have the nonexclusive right to use in common with Landlord and all
Development Occupants (as defined above), subject to the terms of this Lease,
the Rules and Regulations referenced in Paragraph 32 below and all covenants,
conditions and restrictions now or hereafter affecting the Development, the
following common areas of the Building and/or the Development: The parking
facilities of the Development which serve the Building (subject to the
provisions of Exhibit "H"), loading and unloading areas, trash areas, roadways,
sidewalks, walkways, parkways, driveways, landscaped areas, plaza areas,
fountains and similar areas and facilities situated within the Development and
appurtenant to the Building which are not reserved for the exclusive use of any
Development Occupants (collectively, "Development Common Areas"). The Building
Common Areas and the Development Common Areas may hereinafter be collectively
referred to as the "Common Areas."
(d) LANDLORD'S RESERVATION OF RIGHTS. Provided Tenant's use of and access to the
Premises and parking to be provided to Tenant under this Lease is not interfered
with in an unreasonable manner, Landlord reserves for itself and for all other
owner(s) and operator(s) of the Development Common Areas and the balance of the
Development, the right from time to time to: (i) install, use, maintain, repair,
replace and relocate pipes, ducts, conduits, wires and appurtenant meters and
equipment above the ceiling surfaces, below the floor surfaces, within the walls
and in the central core areas of the Building; (ii) make changes to the design
and layout of the Development, including, without limitation, changes to
buildings, driveways, entrances, loading and unloading areas, direction of
traffic, landscaped areas and walkways, and, subject to the parking provisions
contained in Paragraph 32 and Exhibit "H", parking spaces and parking areas; and
(iii) use or close temporarily the Building Common Areas, the Development Common
Areas and/or other portions of the Development while engaged in making
improvements, repairs or alterations to the Building, the Development, or any
portion thereof. Landlord covenants that, so long as Tenant leases all of the
Building, Landlord, in exercising the rights reserved to it under this
subsection, will ensure that Tenant retains at least 315, eight foot wide,
parking spaces.
3. TERM. The term of this Lease ("Term") will be for the period designated in
Subparagraph 1(i), commencing on the Commencement Date, and ending on the last
day of the month in which the expiration of such period occurs, including any
extensions of the Term pursuant to any provision of this Lease or written
agreement of the parties. Each consecutive twelve (12) month period of the Term
of this Lease, commencing on the Commencement Date, will be referred to herein
as a "Lease Year". Landlord's Notice of Lease Term Dates and Tenant's Percentage
("Notice"), in the form of Exhibit "D" attached hereto, will set forth the
Commencement Date, the date upon which the Term of this Lease shall end, the
Rentable Square Feet within the Premises and the Building, and Tenant's
Percentage and will be delivered to Tenant after Landlord delivers possession of
the Premises to Tenant. The Notice will be binding upon Tenant unless Tenant
objects to the Notice in writing within five (5) business days of Tenant's
receipt of the Notice.
4. POSSESSION.
(a) DELIVERY OF POSSESSION. Landlord agrees to deliver possession of the
Premises to Tenant in accordance with the terms of the Work Letter Agreement
attached hereto as Exhibit "C", or, if no Work Letter Agreement is required for
this Lease, then Landlord agrees to deliver possession of the Premises to Tenant
on the Commencement Date in an "as is" condition without representation or
warranty. Notwithstanding the foregoing, Landlord will not be obligated to
deliver possession of the Premises to Tenant (but Tenant will be liable for rent
if Landlord can otherwise deliver the Premises to Tenant) until Landlord has
received
3
4
from Tenant all of the following: (i) a copy of this Lease fully executed by
Tenant; (ii) the Security Deposit and the first installment of Monthly Base
Rent; (iii) executed copies of policies of insurance or certificates thereof as
required under Paragraph 19 of this Lease; (iv) copies of all governmental
permits and authorizations, if any, required in connection with Tenant's
operation of its business within the Premises; and (v) if Tenant is a
corporation, partnership or limited liability company, such evidence of due
formation, valid existence and authority as Landlord may reasonably require,
which may include, without limitation, a certificate of good standing,
certificate of secretary, articles of incorporation, statement of partnership,
or other similar documentation. Notwithstanding the foregoing to the contrary,
if the Premises are not substantially completed on or before October 1, 2000,
Landlord shall reimburse Tenant any holdover rent it shall actually pay to its
existing landlord, as evidenced by paid invoices, as a result of such delay up
to a maximum of $25,000.00 per month, provided that the delay in substantial
completion is not due to Tenant Delays (as defined in the Work Letter attached)
or force majeure events, and Tenant has executed and delivered to Landlord this
Lease by February 10, 2000.
(b) CONDITION OF PREMISES. Prior to the Commencement Date and in accordance with
the Work Letter Agreement attached hereto as Exhibit "C", Landlord and Tenant
will jointly conduct a walk-through inspection of the Premises and will jointly
prepare a punch-list ("Punch-List") of items required to be installed by
Landlord under the Work Letter Agreement which require finishing or correction.
The Punch-List will not include any items of damage to the Premises caused by
Tenant's move-in or early entry, if permitted, which damage will be corrected or
repaired by Landlord, at Tenant's expense or, at Landlord's election, by Tenant,
at Tenant's expense. Other than the items specified in the Punch-List, latent
defects which Tenant must give written notice of objection within six (6) months
after the Commencement Date, and defects with the HVAC system which Tenant must
give written notice of objection within eleven (11) months after the
Commencement Date, by taking possession of the Premises, Tenant will be deemed
to have accepted the Premises in its condition on the date of delivery of
possession and to have acknowledged that the Tenant Improvements have been
installed as required by the Work Letter Agreement and that there are no
additional items needing work or repair. Landlord will cause all items in the
Punch-List to be repaired or corrected within thirty (30) days following the
completion of the Punch-List or as soon as practicable after the completion of
the Punch-List. Tenant acknowledges that neither Landlord nor any agent of
Landlord has made any representation or warranty with respect to the Premises,
the Building, the Development or any portions thereof or with respect to the
suitability of same for the conduct of Tenant's business and Tenant further
acknowledges that Landlord will have no obligation to construct or complete any
additional buildings or improvements within the Development.
(c) CONDITION OF DEVELOPMENT. The Development shall contain a digital redundant
telecommunications system, including looped fiber optics, and will provide cable
(CATV) to the Building. Electrical power is expected to be high capacity and
Landlord shall use commercially reasonable efforts to link such electrical
service to two separate Public Service Co. substations as and at such time as
connection is commercially viable. Landlord agrees that upon execution of this
Lease, Landlord shall immediately begin, and diligently pursue in a timely
manner, the planning of the next speculative office building within the
Development. Landlord will use commercially reasonable efforts to locate the
next speculative office building on either Site 2 or Site 3 as depicted on
Exhibit "A-I" attached hereto. If Landlord determines, in its commercially
reasonable discretion, that construction of the next speculative office building
is commercially viable, then Landlord will diligently pursue all necessary
approvals to commence construction on such building prior to September 1, 2000.
Landlord will use commercially reasonable efforts to include, as part of its
next speculative office building within the Development, a parking structure
that will provide at least 50 reserved, covered parking spaces.
Landlord will provide Tenant fifty (50) reserved, covered parking
spaces at a rate of Sixty Five Dollars ($65.00) per space per month as set forth
below. Prior to the Commencement Date under this Lease, Landlord will meet with
Tenant to discuss with Tenant its preferences with respect to the following
options for covered parking:
(i) If Landlord determines that a single parking structure
(which will house at least 50 reserved, covered parking spaces) is a
viable component of the next speculative office building within the
Development, and Landlord has obtained all requisite approvals to
construct such a covered parking structure, then Landlord will notify
Tenant of such determination prior to the Commencement Date. Upon
receipt of such notice, Landlord and Tenant will meet to discuss
whether it makes sense for Landlord to construct the covered
structure(s) set forth in subsection (ii) below or to only have
Landlord pursue the construction of the single parking structure
contemplated herein. If Landlord and Tenant elect to forego
construction of the structure(s) set forth in subsection (ii) below,
then Landlord and Tenant must acknowledge such agreement through an
amendment to this Lease and thereafter Landlord will diligently pursue
completion of the single parking structure prior to the October 1,
2001, and Landlord shall have no obligation to construct the covered
parking structures described in subsection (ii) below. Upon completion
of such covered parking structure, Tenant will commit to utilize fifty
(50) reserved, covered spaces in such structure.
(ii) If Landlord and Tenant cannot agree to only pursue
construction of the single parking structure as set forth in subsection
(i) above, then Landlord will use best efforts to construct, prior to
November 1, 2000, a covered parking structure in the southwest corner
of the parking area as depicted on Exhibit "A-II" to provide Tenant
with twenty four (24) reserved, covered parking spaces. Additionally,
Landlord will use best efforts to construct, prior to
4
5
May 1, 2001, within Site #2 (as depicted on Exhibit "A-II" attached
hereto) at a location adjacent to or near the 24-space structure as
reasonably determined by Landlord and Tenant, a supplemental parking
structure (of similar quality and appearance to the 24-space covered
structure) which provides Tenant at least an additional 26 reserved,
covered parking spaces (in addition to the 24 existing spaces noted
above). If Landlord and Tenant cannot agree on the location of the
additional parking structure prior to the Commencement Date (as
memorialized in a signed amendment to this Lease), then Landlord shall
have no obligation to construct such additional parking structure and
Tenant shall have no obligation to rent any additional covered parking
spaces.
Tenant shall have no obligation to take more than fifty (50) reserved,
covered parking spaces. Any covered parking spaces allocated for Tenant's use
shall be at a price of Sixty-Five Dollars ($65.00) per space per month for the
balance of the initial Term of this Lease, and shall correspondingly reduce the
number of uncovered parking spaces allocated for Tenant's use under Section 1(s)
above from a location reasonably determined by Landlord.
5. RENT.
(a) MONTHLY BASE RENT. Tenant agrees to pay Landlord the Monthly Base Rent for
the Premises (subject to adjustment as hereinafter provided) in advance on the
first day of each calendar month during the Term without prior notice or demand,
except that Tenant agrees to pay the Monthly Base Rent for the first month of
the Term directly to Landlord concurrently with Tenant's delivery of the
executed Lease to Landlord. If the Term of this Lease commences or ends on a day
other than the first day of a calendar month, then the rent for such period will
be prorated in the proportion that the number of days this Lease is in effect
during such period bears to the number of days in such month. All rent must be
paid to Landlord, without any deduction or offset, in lawful money of the United
States of America, at the address designated by Landlord or to such other person
or at such other place as Landlord may from time to time designate in writing.
Monthly Base Rent will be adjusted during the Term of this Lease as provided in
Subparagraph 1(m).
(b) ADDITIONAL RENT. All amounts and charges to be paid by Tenant hereunder,
including, without limitation, payments for Operating Expenses, insurance,
repairs and parking, will be considered additional rent for purposes of this
Lease, and the word "rent" as used in this Lease will include all such
additional rent unless the context specifically or clearly implies that only
Monthly Base Rent is intended.
(c) LATE PAYMENTS. Late payments of Monthly Base Rent and/or any item of
additional rent will be subject to interest and a late charge as provided in
Subparagraph 22(f) below.
6. OPERATING EXPENSES.
(a) OPERATING EXPENSES. In addition to Monthly Base Rent, throughout the Term of
this Lease, Tenant agrees to pay Landlord as additional rent in the manner set
forth in Paragraph 6 above, Tenant's Percentage of Operating Expenses as defined
in Exhibit "E" attached hereto.
(b) ESTIMATE STATEMENT. Prior to the Commencement Date and on or about March 1st
of each subsequent calendar year during the Term of this Lease, Landlord will
deliver to Tenant a statement ("Estimate Statement") wherein Landlord will
estimate both the Operating Expenses and Tenant's Percentage of Operating
Expenses for the then current calendar year. Tenant agrees to pay Landlord, as
"Additional Rent", one-twelfth (1/12th) of Tenant's Percentage of Operating
Expenses as set forth in the Estimate Statement each month thereafter, beginning
with the next installment of rent due, until such time as Landlord issues a
revised Estimate Statement or the Estimate Statement for the succeeding calendar
year; except that, concurrently with the regular monthly rent payment next due
following the receipt of each such Estimate Statement, Tenant agrees to pay
Landlord an amount equal to one monthly installment of such difference (less any
applicable Operating Expenses already paid) multiplied by the number of months
from January, in the current calendar year, to the month of such rent payment
next due, all months inclusive. If at any time during the Term of this Lease,
but not more often than quarterly, Landlord reasonably determines that Tenant's
Percentage of Operating Expenses for the current calendar year will be greater
than the amount set forth in the then current Estimate Statement, Landlord may
issue a revised Estimate Statement and Tenant agrees to pay Landlord, within ten
(10) days of receipt of the revised Estimate Statement, the difference between
the amount owed by Tenant under such revised Estimate Statement and the amount
owed by Tenant under the original Estimate Statement for the portion of the then
current calendar year which has expired. Thereafter Tenant agrees to pay
Tenant's Percentage of Operating Expenses based on such revised Estimate
Statement until Tenant receives the next calendar year's Estimate Statement or a
new revised Estimate Statement for the current calendar year.
(c) ACTUAL STATEMENT. By March 1st of each calendar year during the Term of this
Lease (commencing March 1 in the calendar year following the Commencement Date
under the Lease), Landlord will also deliver to Tenant a statement ("Actual
Statement") which states the actual Operating Expenses for the preceding
calendar year. If the Actual Statement reveals that Tenant's Percentage of the
actual Operating Expenses is more than the total Additional Rent paid by Tenant
for Operating
5
6
Expenses on account of the preceding calendar year, Tenant agrees to pay
Landlord the difference in a lump sum within ten (10) days of receipt of the
Actual Statement. If the Actual Statement reveals that Tenant's Percentage of
the actual Operating Expenses is less than the Additional Rent paid by Tenant
for Operating Expenses on account of the preceding calendar year, Landlord will
credit any overpayment toward the next monthly installment(s) of Tenant's
Percentage of the Operating Expenses due under this Lease, or upon Tenant's
written request, Landlord will refund to Tenant the difference.
(d) MISCELLANEOUS. Any delay or failure by Landlord in delivering any Estimate
Statement or Actual Statement pursuant to this Paragraph 6 will not constitute a
waiver of its right to require an increase in rent nor will it relieve Tenant of
its obligations pursuant to this Paragraph 6, except that Tenant will not be
obligated to make any payments based on such Estimate Statement or Actual
Statement until ten (10) days after receipt of such Estimate Statement or Actual
Statement. Even though the Term has expired and Tenant has vacated the Premises,
when the final determination is made of Tenant's Percentage of the actual
Operating Expenses for the year in which this Lease terminates, Tenant agrees to
promptly pay any increase due over the estimated expenses paid and, conversely,
any overpayment made in the event said expenses decrease shall promptly be
rebated by Landlord to Tenant. Such obligation will be a continuing one which
will survive the expiration or earlier termination of this Lease. Prior to the
expiration or sooner termination of the Lease Term and Landlord's acceptance of
Tenant's surrender of the Premises, Landlord will have the right to estimate the
actual Operating Expenses for the then current Lease Year and to collect from
Tenant prior to Tenant's surrender of the Premises, Tenant's Percentage of the
Operating Expenses over the estimated Operating Expenses paid by Tenant in such
Lease Year.
(e) OPERATING EXPENSE CAP. Notwithstanding anything to the contrary set forth in
this Section 6, for the purposes of calculating Tenant's Percentage of Operating
Expenses, "Controlled Expenses" (as hereinafter defined) shall not exceed the
"Maximum Controlled Expenses" (as hereinafter defined). "Controlled Expenses"
shall mean all Operating Expenses except those attributable to Real Property
Taxes and Assessments, costs of insurance, including, without limitation,
liability insurance, casualty insurance, worker's compensation insurance, and
business interruption insurance, costs of utilities, and costs of compliance
with any laws, rules or regulations. "Maximum Controlled Expenses" shall mean:
(a) for calendar year 2000, the full amount of the actual expenses for
Controlled Expenses as determined in accordance with the foregoing provisions;
(b) for calendar year 2001 and each calendar year thereafter, the prior calendar
year's Maximum Controlled Expenses multiplied by 1.06. The limitations described
above shall be a limitation only on the calculation of Tenant's Percentage of
Operating Expenses and such limitation shall not prohibit Landlord from spending
amounts in excess of such limitations. Landlord may, in accordance with advice
from its accountants and other professionals, reasonably contest any utility
rate increases associated with the Building and/or tax assessments and to apply
for all rebates to which it is entitled so long as it has knowledge thereof. The
costs of all such contests and applications shall be included in Operating
Expenses, however, any penalties or fines in connection with such amounts shall
not be so included. To the extent any rebates or refunds are actually received
by Landlord, they shall be applied to reduce the total Operating Expenses for
the year in which such amounts are received. If any such amounts attributable to
periods during the term hereof are received by Landlord following the expiration
of the term hereof (according to its terms and not as a result of an event of
default, as hereinafter defined), Landlord agrees to forward to Tenant any
amounts to which Tenant is entitled as and when received notwithstanding the
fact that this Lease has so expired, provided Tenant has given to Landlord a
valid forwarding address. Notwithstanding anything herein or in Exhibit "E" to
the contrary, Landlord's administrative fees included within Operating Expenses
and passed through to Tenant shall be capped at a maximum of $1.09 per Rentable
Square Foot through the calendar year 2001. If Tenant desires at its own expense
to review and/or verify any Actual Statement provided herein and the supporting
records and data, Tenant shall cause such review to commence within thirty (30)
days following delivery of the Actual Statement to Tenant and such review shall
be completed within sixty (60) days thereafter. If Tenant does not conduct such
review, then such Actual Statement shall be deemed to be conclusively accepted
by Tenant and Tenant shall have no right thereafter to question or examine the
same. Tenant may not utilize an individual or group hired on a contingency fee
basis to conduct such review of the Actual Statement set forth herein.
(f) PROPERTY TAX CONTEST. Notwithstanding anything set forth in Section 6(e)
above, and provided Tenant is not in default under this Lease and Tenant leases
all of the Building, Tenant may in good faith, by appropriate proceedings,
contest, so long as such contest is diligently pursued, the validity,
applicability or amount of any asserted tax or assessment with respect to the
Building. During such contest, Tenant shall not be deemed in default hereunder
by reason of non-payment of such tax or assessment if, prior to delinquency of
the asserted tax or assessment, Tenant establishes an escrow with and acceptable
to Landlord adequate to cover the payment of such tax or assessment and any
additional sums, as reasonably determined by Landlord needed to cover any
assessed interest, costs and penalties. Tenant shall promptly cause to be paid
any amount adjudged by a court of competent jurisdiction to be due, with all
interest, costs and penalties thereon, promptly after such judgment becomes
final; provided, however, that in any event such taxes, assessments, interest,
costs and penalties shall be paid prior to the date on which the Building or any
property underneath the Building may be sold for delinquent taxes pursuant to
any applicable statute or any writ or order. The aforementioned escrow shall be
returned to Tenant upon settlement of such contest and payment in full of all
amounts determined to be owing thereby.
7. SECURITY DEPOSIT. Concurrently with Tenant's execution of this Lease, Tenant
will deposit with Landlord the Security Deposit designated in Subparagraph 1(o).
The Security Deposit will be held by Landlord as security for the full and
6
7
faithful performance by Tenant of all of the terms, covenants, and conditions of
this Lease to be kept and performed by Tenant during the Term hereof. If Tenant
fully and faithfully performs its obligations under this Lease, including,
without limitation, surrendering the Premises upon the expiration or sooner
termination of this Lease in compliance with Subparagraph 11(a) below, the
Security Deposit or any balance thereof will be returned to Tenant (or, at
Landlord's option, to the last assignee of Tenant's interest hereunder) within
thirty (30) days following the expiration of the Lease Term or as required under
applicable law, provided that Landlord may retain the Security Deposit until
such time as any outstanding rent or additional rent amount has been determined
and paid in full. The Security Deposit is not, and may not be construed by
Tenant to constitute, rent for the last month or any portion thereof. If Tenant
defaults with respect to any provisions of this Lease including, but not limited
to, the provisions relating to the payment of rent or additional rent, Landlord
may (but will not be required to) use, apply or retain all or any part of the
Security Deposit for the payment of any rent or any other sum in default, or for
the payment of any other amount which Landlord may spend or become obligated to
spend by reason of Tenant's default or to compensate Landlord for any loss or
damage which Landlord may suffer by reason of Tenant's default. If any portion
of the Security Deposit is so used or applied, Tenant agrees, within ten (10)
days after Landlord's written demand therefor, to deposit cash with Landlord in
an amount sufficient to restore the Security Deposit to its original amount and
Tenant's failure to do so shall constitute a default under this Lease. Landlord
is not required to keep Tenant's Security Deposit separate from its general
funds, and Tenant is not entitled to interest on such Security Deposit. Should
Landlord sell its interest in the Premises during the Term hereof and deposit
with the purchaser thereof the then unappropriated Security Deposit funds, then
the purchaser will take the Premises subject to and assume Landlord's
obligations hereunder with respect to the Security Deposit and Landlord will
thereafter be discharged from any further liability with respect to such
Security Deposit. In addition to the cash Security Deposit set forth above,
Tenant shall deposit with Landlord, as an additional Security Deposit, the
Letter of Credit more specifically described in the Addendum.
8. USE.
(a) TENANT'S USE OF THE PREMISES. The Premises may be used for the use or uses
set forth in Subparagraph 1(r) only, and Tenant will not use or permit the
Premises to be used for any other purpose without the prior written consent of
Landlord, which consent Landlord may withhold in its sole and absolute
discretion. Nothing in this Lease will be deemed to give Tenant any exclusive
right to such use in the Building or the Development.
(b) COMPLIANCE. At Tenant's sole cost and expense, Tenant agrees to procure,
maintain and hold available for Landlord's inspection, all governmental licenses
and permits required for the proper and lawful conduct of Tenant's business from
the Premises, if any. Tenant agrees not to use, alter or occupy the Premises or
allow the Premises to be used, altered or occupied in violation of, and Tenant,
at its sole cost and expense, agrees to use and occupy the Premises and cause
the Premises to be used and occupied in compliance with: (i) any and all laws,
statutes, zoning restrictions, ordinances, rules, regulations, orders and
rulings now or hereafter in force and any requirements of any insurer, insurance
authority or duly constituted public authority having jurisdiction over the
Premises, the Building or the Development now or hereafter in force, (ii) the
requirements of the Board of Fire Underwriters and any other similar body, (iii)
the Certificate of Occupancy issued for the Building, and (iv) any recorded
covenants, conditions and restrictions and similar regulatory agreements, if
any, which affect the use, occupation or alteration of the Premises, the
Building and/or the Development. Tenant agrees to comply with the Rules and
Regulations referenced in Paragraph 28 below and attached hereto as Exhibit "H"
as the same may be amended from time-to-time. Tenant agrees not to do or permit
anything to be done in or about the Premises which will in any manner obstruct
or interfere with the rights of other tenants or occupants of the Development,
or injure or unreasonably annoy them, or use or allow the Premises to be used
for any unlawful or unreasonably objectionable purpose. Tenant agrees not to
cause, maintain or permit any nuisance or waste in, on, under or about the
Premises or elsewhere within the Development. Notwithstanding anything contained
in this Lease to the contrary, all transferable development rights related in
any way to the Development are and will remain vested in Landlord, and Tenant
hereby waives any rights thereto.
(c) HAZARDOUS MATERIALS. Except for ordinary and general office supplies
typically used in the ordinary course of business within office buildings, such
as copier toner, liquid paper, glue, ink and common household cleaning materials
(some or all of which may constitute "Hazardous Materials" as defined in this
Lease) which items must be used, stored and disposed of in strict compliance
with all applicable laws, rules and regulations relating to Hazardous Materials,
Tenant agrees not to cause or permit any Hazardous Materials to be brought upon,
stored, used, handled, generated, released or disposed of on, in, under or about
the Premises, the Building, the Common Areas or any other portion of the
Development by Tenant, its agents, employees, subtenants, assignees, licensees,
contractors or invitees (collectively, "Tenant's Parties"), without the prior
written consent of Landlord, which consent Landlord may withhold in its sole and
absolute discretion. Upon the expiration or earlier termination of this Lease,
Tenant agrees to promptly remove from the Premises, the Building and the
Development, at its sole cost and expense, any and all Hazardous Materials,
including any equipment or systems containing Hazardous Materials which are
installed, brought upon, stored, used, generated or released upon, in, under or
about the Premises, the Building and/or the Development or any portion thereof
by Tenant or any of Tenant's Parties. To the fullest extent permitted by law,
Tenant agrees to promptly indemnify, protect, defend and hold harmless Landlord
and Landlord's partners, officers, directors, employees, agents, property
manager, successors and assigns (collectively, "Landlord Indemnified Parties")
from and against any and all claims, damages, judgments, suits, causes of
action, losses, liabilities, penalties, fines, expenses and costs (including,
without limitation, clean-up,
7
8
removal, remediation and restoration costs, sums paid in settlement of claims,
attorneys' fees, consultant fees and expert fees and court costs) which arise or
result from the presence of Hazardous Materials on, in, under or about the
Premises, the Building or any other portion of the Development and which are
caused or permitted by Tenant or any of Tenant's Parties. Tenant agrees to
promptly notify Landlord of any release of Hazardous Materials at the Premises,
the Building or any other portion of the Development which Tenant becomes aware
of during the Term of this Lease, whether caused by Tenant or any other persons
or entities. In the event of any release of Hazardous Materials caused or
permitted by Tenant or any of Tenant's Parties, Landlord shall have the right,
but not the obligation, to cause Tenant to immediately take all steps Landlord
deems necessary or appropriate to remediate such release and prevent any similar
future release to the satisfaction of Landlord and Landlord's mortgagee(s). As
used in this Lease, the term "Hazardous Materials" shall mean and include any
hazardous or toxic materials, substances or wastes as now or hereafter
designated under any law, statute, ordinance, rule, regulation, order or ruling
of any agency of the State, the United States Government or any local
governmental authority, including, without limitation, asbestos, petroleum,
petroleum hydrocarbons and petroleum based products, urea formaldehyde foam
insulation, polychlorinated biphenyls ("PCBs"), and freon and other
chlorofluorocarbons. The provisions of this Subparagraph 8(c) will survive the
expiration or earlier termination of this Lease. To the extent required or
imposed by applicable law, Landlord will: (i) as between Landlord and Tenant, be
solely responsible for the presence of Hazardous Materials on, in, under or
about the Premises and the Development prior to the date of mutual execution of
this Lease; and (ii) be responsible for its use, storage and disposal of
Hazardous Materials in connection with its operation of the Building as
contemplated by this Lease. In case any action or proceeding is brought against
Tenant by reason of any such claims set forth in (i) or (ii) above, Landlord,
upon notice from Tenant and acknowledgment of responsibility under (i) or (ii)
above, agrees to promptly defend the same at Landlord's sole cost and expense by
counsel approved in writing by Tenant, which approval Tenant will not
unreasonably withhold. If Landlord does not acknowledge responsibility as set
forth in the preceding sentence and it is ultimately determined that Landlord is
responsible under (i) or (ii) above, then Landlord will reimburse Tenant for its
reasonable and documented fees and expenses (including legal fees) incurred in
defending against such claims.
9. NOTICES. Any notice required or permitted to be given hereunder must be in
writing and may be given by personal delivery (including delivery by overnight
courier or an express mailing service) or by mail, if sent by registered or
certified mail. Notice shall be deemed delivered (i) on the date given by
personal service; (ii) three (3) days after such notice is sent via certified or
registered mail; or (iii) one (1) day after such notice is sent via recognized
overnight courier and confirmation also delivered by certified or registered
mail. Notices to Tenant shall be sufficient if delivered to Tenant at the
address designated in Subparagraph 1(d) and notices to Landlord shall be
sufficient if delivered to Landlord at the address designated in Subparagraph
1(b). Either party may specify a different address for notice purposes by
written notice to the other, except that the Landlord may in any event use the
Premises as Tenant's address for notice purposes.
10. BROKERS. The parties acknowledge that the broker(s) who negotiated this
Lease are stated in Subparagraph 1(t). Each party represents and warrants to the
other, that, to its knowledge, no other broker, agent or finder (a) negotiated
or was instrumental in negotiating or consummating this Lease on its behalf, and
(b) is or might be entitled to a commission or compensation in connection with
this Lease. Landlord and Tenant each agree to promptly indemnify, protect,
defend and hold harmless the other from and against any and all claims, damages,
judgments, suits, causes of action, losses, liabilities, penalties, fines,
expenses and costs (including attorneys' fees and court costs) resulting from
any breach by the indemnifying party of the foregoing representation, including,
without limitation, any claims that may be asserted by any broker, agent or
finder undisclosed by the indemnifying party. The foregoing mutual indemnity
shall survive the expiration or earlier termination of this Lease.
11. SURRENDER; HOLDING OVER.
(a) SURRENDER. The voluntary or other surrender of this Lease by Tenant, or a
mutual cancellation thereof, shall not constitute a merger, and shall, at the
option of Landlord, operate as an assignment to Landlord of any or all subleases
or subtenancies. Upon the expiration or earlier termination of this Lease,
Tenant agrees to peaceably surrender the Premises to Landlord broom clean and in
a state of first-class order, repair and condition, ordinary wear and tear and
casualty damage (if this Lease is terminated as a result thereof pursuant to
Paragraph 20) excepted, with all of Tenant's personal property and Alterations
(as defined in Paragraph 13) removed from the Premises to the extent required
under Paragraph 13 and all damage caused by such removal repaired as required by
Paragraph 13. Prior to the date Tenant is to actually surrender the Premises to
Landlord, Tenant agrees to give Landlord reasonable prior notice of the exact
date Tenant will surrender the Premises so that Landlord and Tenant can schedule
a walk-through of the Premises to review the condition of the Premises and
identify the Alterations and personal property which are to remain upon the
Premises and which items Tenant is to remove, as well as any repairs Tenant is
to make upon surrender of the Premises. The delivery of keys to any employee of
Landlord or to Landlord's agent or any employee thereof alone will not be
sufficient to constitute a termination of this Lease or a surrender of the
Premises.
(b) HOLDING OVER. Tenant will not be permitted to hold over possession of the
Premises after the expiration or earlier termination of the Term without the
express written consent of Landlord, which consent Landlord may withhold in its
sole and absolute discretion. If Tenant holds over after the expiration or
earlier termination of the Term, Landlord may, at its option, treat
8
9
Tenant as a tenant at sufferance only, and such continued occupancy by Tenant
shall be subject to all of the terms, covenants and conditions of this Lease, so
far as applicable, except that the Monthly Base Rent for any such holdover
period shall be equal to the greater of (i) one hundred fifty percent (150%) of
the Monthly Base Rent in effect under this Lease immediately prior to such
holdover, or (ii) the then currently scheduled rental rate for comparable space
in the Building, in either event prorated on a daily basis. Acceptance by
Landlord of rent after such expiration or earlier termination will not result in
a renewal of this Lease. The foregoing provisions of this Paragraph 11 are in
addition to and do not affect Landlord's right of re-entry or any rights of
Landlord under this Lease or as otherwise provided by law. If Tenant fails to
surrender the Premises upon the expiration of this Lease in accordance with the
terms of this Paragraph 11 despite demand to do so by Landlord, Tenant agrees to
promptly indemnify, protect, defend and hold Landlord harmless from all claims,
damages, judgments, suits, causes of action, losses, liabilities, penalties,
fines, expenses and costs (including attorneys' fees and costs), including,
without limitation, costs and expenses incurred by Landlord in returning the
Premises to the condition in which Tenant was to surrender it and claims made by
any succeeding tenant founded on or resulting from Tenant's failure to surrender
the Premises. The provisions of this Subparagraph 11(b) will survive the
expiration or earlier termination of this Lease.
12. TAXES ON TENANT'S PROPERTY. Tenant agrees to pay before delinquency, all
taxes and assessments (real and personal) levied against (a) any personal
property or trade fixtures placed by Tenant in or about the Premises (including
any increase in the assessed value of the Premises based upon the value of any
such personal property or trade fixtures); and (b) any Tenant Improvements or
Alterations in the Premises (whether installed and/or paid for by Landlord or
Tenant) to the extent such items are assessed at a valuation higher than the
valuation at which tenant improvements conforming to Landlord's building
standard tenant improvements are assessed. If any such taxes or assessments are
levied against Landlord or Landlord's property, Landlord may, after written
notice to Tenant (and under proper protest if requested by Tenant) pay such
taxes and assessments, in which event Tenant agrees to reimburse Landlord all
amounts paid by Landlord within ten (10) business days after demand by Landlord;
provided, however, Tenant, at its sole cost and expense, will have the right,
with Landlord's cooperation, to bring suit in any court of competent
jurisdiction to recover the amount of any such taxes and assessments so paid
under protest.
13. ALTERATIONS. After installation of the initial Tenant Improvements for the
Premises pursuant to Exhibit "C", Tenant may, at its sole cost and expense, make
alterations, additions, improvements and decorations to the Premises
(collectively, "Alterations") subject to and upon the following terms and
conditions:
(a) PROHIBITED ALTERATIONS. Tenant may not make any Alterations which: (i)
affect any area outside the Premises; (ii) affect the Building's structure,
equipment, services or systems, or the proper functioning thereof, or Landlord's
access thereto; (iii) affect the outside appearance, character or use of the
Building or the Building Common Areas; (iv) in the reasonable opinion of
Landlord, lessen the value of the Building; or (v) will violate or require a
change in any occupancy certificate applicable to the Premises.
(b) LANDLORD'S APPROVAL. Before proceeding with any Alterations which are not
prohibited in Subparagraph 13(a) above, Tenant must first obtain Landlord's
written approval of the plans, specifications and working drawings for such
Alterations, which approval Landlord will not unreasonably withhold or delay;
provided, however, Landlord's prior approval will not be required for any such
Alterations which are not prohibited by Subparagraph 13(a) above and which cost
less than Thirty Thousand Dollars ($30,000) in the aggregate as long as (i)
Tenant delivers to Landlord notice and a copy of any final plans, specifications
and working drawings for any such Alterations at least ten (10) days prior to
commencement of the work thereof, and (ii) the other conditions of this
Paragraph 13 are satisfied, including, without limitation, conforming to
Landlord's rules, regulations and insurance requirements which govern
contractors. Landlord's approval of plans, specifications and/or working
drawings for Alterations will not create any responsibility or liability on the
part of Landlord for their completeness, design sufficiency, or compliance with
applicable permits, laws, rules and regulations of governmental agencies or
authorities. In approving any Alterations, Landlord reserves the right to
require Tenant to increase its Security Deposit to provide Landlord with
additional reasonable security for the removal of such Alterations by Tenant as
may be required by this Lease.
(c) CONTRACTORS. Alterations may be made or installed only by contractors and
subcontractors which have been approved by Landlord, which approval Landlord
will not unreasonably withhold or delay; provided, however, Landlord reserves
the right to require that Landlord's contractor for the Building be given the
first opportunity to bid for any Alteration work. Before proceeding with any
Alterations, Tenant agrees to provide Landlord with ten (10) days prior written
notice and Tenant's contractors must obtain and maintain, on behalf of Tenant
and at Tenant's sole cost and expense: (i) all necessary governmental permits
and approvals for the commencement and completion of such Alterations; and (ii)
if requested by Landlord, a completion and lien indemnity bond, or other surety,
reasonably satisfactory to Landlord for such Alterations. Throughout the
performance of any Alterations, Tenant agrees to obtain, or cause its
contractors to obtain, workers compensation insurance and general liability
insurance in compliance with the provisions of Paragraph 19 of this Lease.
(d) MANNER OF PERFORMANCE. All Alterations must be performed: (i) in accordance
with the approved plans, specifications and working drawings; (ii) in a
lien-free and first-class and workmanlike manner; (iii) in compliance with all
applicable permits, laws, statutes, ordinances, rules, regulations, orders and
rulings now or hereafter in effect and imposed by any governmental
9
10
agencies and authorities which assert jurisdiction; (iv) in such a manner so as
not to interfere with the occupancy of any other tenant in the Building, nor
impose any additional expense upon nor delay Landlord in the maintenance and
operation of the Building; and (v) at such times, in such manner, and subject to
such rules and regulations as Landlord may from time to time reasonably
designate.
(e) OWNERSHIP. The Tenant Improvements, including, without limitation, all
affixed sinks, dishwashers, microwave ovens and other fixtures, and all
Alterations (whether or not Landlord's consent to such Alteration was required
under Section 13(b) above) will become the property of Landlord and will remain
upon and be surrendered with the Premises at the end of the Term of this Lease;
provided, however, Landlord may, by written notice delivered to Tenant
concurrently with Landlord's approval of the final working drawings for any
Tenant Improvements, Alterations or Special Items (as defined in Section 5(b) of
the Work Letter Agreement), identify those Tenant Improvments, Alterations
and/or Special Items which Landlord will require Tenant to remove at the end of
the Term of this Lease. Landlord may also require Tenant to remove Alterations
which Landlord did not have the opportunity to approve as provided in this
Paragraph 13. If Landlord requires Tenant to remove any Alterations or Tenant
Improvements, Tenant, at its sole cost and expense, agrees to remove the
identified items on or before the expiration or earlier termination of this
Lease and repair any damage to the Premises caused by such removal (or, at
Landlord's option, Tenant agrees to pay to Landlord all of Landlord's costs of
such removal and repair). Any Special Items required to be removed by Landlord
shall be removed, at Tenant's sole cost and expense, from the Premises within
fifteen (15) days after the expiration or early termination of the Term, and
those portions of the Premises containing such Special Items must be returned to
the base building core and shell condition as reflected in the Plans (as defined
in Section 1A of the Work Letter Agreement). Landlord hereby grants Tenant a
license only to remove such Special Items and to restore such portions of the
Premises housing such Special Items as required herein, and for no other purpose
whatsoever, for a period which expires fifteen (15) days after the expiration or
early termination of the Term. In addition to the foregoing, in the event that
Landlord allows part of the Allowance to be applied toward the cost of certain
Special Items, then Tenant shall pay to Landlord at least twenty (20) days prior
to the expiration or early termination of the Term, that portion of the
Allowance applied by Landlord toward the cost of Special Items. Notwithstanding
the foregoing, Landlord shall have the right during the last nine months of the
Term of this Lease to give written notice to Tenant of certain Special Items
which will remain upon and be surrendered with the Premises (and become the
property of Landlord) at the end of the Term of this Lease, and thereafter
Tenant shall have no obligation to restore the specific portion of the Premises
containing such Special Item in the manner set forth above.
(f) PLAN REVIEW. Tenant agrees to pay Landlord, as additional rent, the
reasonable costs of professional services and costs for Landlord's third party
consultants if utilized by Landlord (but not Landlord's "in-house" personnel)
for review of all plans, specifications and working drawings for any
Alterations, within ten (10) business days after Tenant's receipt of invoices
either from Landlord or such consultants. In addition, Tenant agrees to pay
Landlord, within ten (10) business days after completion of any Alterations, a
fee to cover Landlord's costs of supervising and administering the installation
of such Alterations, in the amount of five percent (5%) of the cost of such
Alterations, but in no event less than Two Hundred Fifty Dollars ($250.00).
(g) PERSONAL PROPERTY. All articles of personal property owned by Tenant or
installed by Tenant at its expense in the Premises (including Tenant's business
and trade fixtures, furniture, movable partitions and equipment [such as
telephones, copy machines, computer terminals, refrigerators and facsimile
machines]) will be and remain the property of Tenant, and must be removed by
Tenant from the Premises, at Tenant's sole cost and expense, on or before the
expiration or earlier termination of this Lease. Tenant agrees to repair any
damage caused by such removal at its cost on or before the expiration or earlier
termination of this Lease.
(h) REMOVAL OF ALTERATIONS. If Tenant fails to remove by the expiration or
earlier termination of this Lease all of its personal property, or any
Alterations identified by Landlord for removal, Landlord may, at its option,
treat such failure as a hold-over pursuant to Subparagraph 11(b) above, and/or
Landlord may (without liability to Tenant for loss thereof) treat such personal
property and/or Alterations as abandoned and, at Tenant's sole cost and expense,
and in addition to Landlord's other rights and remedies under this Lease, at law
or in equity: (a) remove and store such items; and/or (b) upon ten (10) days
prior notice to Tenant, sell, discard or otherwise dispose of all or any such
items at private or public sale for such price as Landlord may obtain or by
other commercially reasonable means. Tenant shall be liable for all costs of
disposition of Tenant's abandoned property and Landlord shall have no liability
to Tenant with respect to any such abandoned property. Landlord agrees to apply
the proceeds of any sale of any such property to any amounts due to Landlord
under this Lease from Tenant (including Landlord's attorneys' fees and other
costs incurred in the removal, storage and/or sale of such items), with any
remainder to be paid to Tenant.
14. REPAIRS.
(a) LANDLORD'S OBLIGATIONS. Landlord agrees to repair and maintain in a
first-class manner the Development Common Areas, Building Common Areas and
structural portions of the Building and the plumbing, heating, ventilating, air
conditioning, elevator and electrical systems installed or furnished by
Landlord, unless such maintenance and repairs are (i) attributable to items
installed in Tenant's Premises which are above standard interior improvements
(such as, for example, custom lighting,
10
11
special HVAC and/or electrical panels or systems, kitchen or restroom facilities
and appliances constructed or installed within Tenant's Premises) or (ii) caused
in part or in whole by the act, neglect or omission of any duty by Tenant, its
agents, servants, employees or invitees, in which case Tenant will pay to
Landlord, as additional rent, the reasonable cost of such maintenance and
repairs. Landlord will not be liable for any failure to make any such repairs or
to perform any maintenance unless such failure shall persist after written
notice of the need of such repairs or maintenance is given to Landlord by Tenant
and expiration of the applicable cure period as set forth in this Lease. Except
as provided in Paragraph 20, Tenant will not be entitled to any abatement of
rent and Landlord will not have any liability by reason of any injury to or
interference with Tenant's business arising from the making of any repairs,
alterations or improvements in or to any portion of the Building or the Premises
or in or to fixtures, appurtenances and equipment therein. Tenant shall have no
right to pursue a cure of any default by Landlord hereunder until Tenant shall
have given Landlord and any beneficiary of a deed of trust or mortgage affecting
the Premises notice of the alleged default and an opportunity to cure same as
set forth under this Lease. Unless otherwise prohibited by Landlord, Tenant will
utilize Landlord's engineer and designated contractor in curing any of the
maintenance and repair obligations set forth above with respect to the Building.
Notwithstanding the foregoing, if Landlord disputes the validity of the alleged
default sought to be cured by Tenant, then Tenant shall have no right to take
steps to cure such default until such dispute is finally resolved (and the
resolution allows Tenant to utilize self-help measures to cure such default).
(b) TENANT'S OBLIGATIONS. Tenant agrees to keep, maintain and preserve the
Premises in first class condition and repair and, when and if needed, at
Tenant's sole cost and expense, to make all repairs to the Premises and every
part thereof. Any such maintenance and repairs will be performed by Landlord's
contractor, or at Landlord's option, by such contractor or contractors as Tenant
may choose from an approved list to be submitted by Landlord. Tenant agrees to
pay all costs and expenses incurred in such maintenance and repair within seven
(7) days after billing by Landlord or such contractor or contractors. Tenant
agrees to cause any mechanics' liens or other liens arising as a result of work
performed by Tenant or at Tenant's direction to be eliminated as provided in
Paragraph 15 below. Except as provided in Subparagraph 14(a) above, Landlord has
no obligation to alter, remodel, improve, repair, decorate or paint the Premises
or any part thereof.
(c) TENANT'S FAILURE TO REPAIR. If Tenant refuses or neglects to repair and
maintain the Premises properly as required hereunder to the reasonable
satisfaction of Landlord, Landlord, at any time following ten (10) days (or such
additional time as may reasonably be afforded Tenant as set forth in this Lease
if Tenant is diligently pursuing such cure) from the date on which Landlord
makes a written demand on Tenant to effect such repair and maintenance, may
enter upon the Premises and make such repairs and/or maintenance, and upon
completion thereof, Tenant agrees to pay to Landlord as additional rent,
Landlord's costs for making such repairs plus an amount not to exceed ten
percent (10%) of such costs for overhead, within ten (10) days of receipt from
Landlord of a written itemized xxxx therefor. Any amounts not reimbursed by
Tenant within such ten (10) day period will bear interest at the Interest Rate
until paid by Tenant.
15. LIENS. Tenant agrees not to permit any mechanic's, materialmen's or other
liens to be filed against all or any part of the Development, the Building or
the Premises, nor against Tenant's leasehold interest in the Premises, by reason
of or in connection with any repairs, alterations, improvements or other work
contracted for or undertaken by Tenant or any other act or omission of Tenant or
Tenant's agents, employees, contractors, licensees or invitees. At Landlord's
request, Tenant agrees to provide Landlord with enforceable, conditional and
final lien releases (or other evidence reasonably requested by Landlord to
demonstrate protection from liens) from all persons furnishing labor and/or
materials at the Premises. Landlord will have the right at all reasonable times
to post on the Premises and record any notices of non-responsibility which it
deems necessary for protection from such liens. If any such liens are filed,
Tenant will, at its sole cost, promptly cause such liens to be released of
record or bonded so that it no longer affects title to the Development, the
Building or the Premises. If Tenant fails to cause any such liens to be so
released or bonded within ten (10) days after filing thereof, such failure will
be deemed a material breach by Tenant under this Lease without the benefit of
any additional notice or cure period described in Paragraph 22 below, and
Landlord may, without waiving its rights and remedies based on such breach, and
without releasing Tenant from any of its obligations, cause such liens to be
released by any means it shall deem proper, including payment in satisfaction of
the claims giving rise to such liens. Tenant agrees to pay to Landlord within
ten (10) days after receipt of invoice from Landlord, any sum paid by Landlord
to remove such liens, together with interest at the Interest Rate from the date
of such payment by Landlord.
16. ENTRY BY LANDLORD. Landlord and its employees and agents will at all times
have the right to enter the Premises to inspect the same, to supply janitorial
service and any other service to be provided by Landlord to Tenant hereunder, to
show the Premises to prospective purchasers, to post notices of
nonresponsibility, and/or to repair the Premises as permitted or required by
this Lease. In exercising such entry rights, Landlord will endeavor to minimize,
as reasonably practicable, the interference with Tenant's business, and will
provide Tenant with reasonable advance notice of any such entry (except in
emergency situations and in the case of recurring services e.g. janitorial).
Landlord may, in order to carry out such purposes, erect scaffolding and other
necessary structures where reasonably required by the character of the work to
be performed. Landlord will at all times have and retain a key with which to
unlock all doors in the Premises, excluding Tenant's vaults and safes. Landlord
will have the right to use any and all means which Landlord may reasonably deem
proper to open said doors in an emergency in order to obtain entry to the
Premises. Any entry to the Premises obtained by Landlord by any of said means,
or otherwise, will not be construed or deemed to be a forcible or unlawful entry
into the Premises, or an eviction of Tenant from the
11
12
Premises. Landlord will not be liable to Tenant for any damages or losses for
any entry by Landlord. Landlord will show the Premises to prospective tenants
only after August 1, 2004 unless Landlord gets Tenant's approval for such
showing which approval may be verbal.
17. UTILITIES AND SERVICES. Throughout the Term of the Lease, Landlord agrees to
furnish or cause to be furnished to the Premises the utilities and services
described in the Standards for Utilities and Services attached hereto as Exhibit
"F", subject to the conditions and in accordance with the standards set forth
therein. Landlord may require Tenant from time to time to provide Landlord with
a list of Tenant's employees and/or agents which are authorized by Tenant to
subscribe on behalf of Tenant for any additional services which may be provided
by Landlord. Any such additional services will be provided to Tenant at Tenant's
cost. Landlord will not be liable to Tenant for any failure to furnish any of
the foregoing utilities and services if such failure is caused by all or any of
the following: (i) accident, breakage or repairs; (ii) strikes, lockouts or
other labor disturbance or labor dispute of any character; (iii) governmental
regulation, moratorium or other governmental action or inaction; (iv) inability
despite the exercise of reasonable diligence to obtain electricity, water or
fuel; or (v) any other cause beyond Landlord's reasonable control. In addition,
in the event of any stoppage or interruption of services or utilities, Tenant
shall not be entitled to any abatement or reduction of rent (except as expressly
provided in Subparagraphs 20(f) or 21(b) if such failure results from a damage
or taking described therein), no eviction of Tenant will result from such
failure and Tenant will not be relieved from the performance of any covenant or
agreement in this Lease because of such failure. In the event of any failure,
stoppage or interruption thereof, Landlord agrees to diligently attempt to
resume service promptly. If Tenant requires or utilizes more water or electrical
power than is considered reasonable or normal by Landlord, Landlord may at its
option require Tenant to pay, as additional rent, the cost, as fairly determined
by Landlord, incurred by such extraordinary usage and/or Landlord may install
separate meter(s) for the Premises, at Tenant's sole expense, and Tenant agrees
thereafter to pay all charges of the utility providing service and Landlord will
make an appropriate adjustment to Tenant's Operating Expenses calculation to
account for the fact Tenant is directly paying such metered charges, provided
Tenant will remain obligated to pay its proportionate share of Operating
Expenses subject to such adjustment.
18. ASSUMPTION OF RISK AND INDEMNIFICATION.
(a) ASSUMPTION OF RISK. Tenant, as a material part of the consideration to
Landlord, hereby agrees that neither Landlord nor any Landlord Indemnified
Parties (as defined in Subparagraph 8(c) above) will be liable to Tenant for,
and Tenant expressly assumes the risk of and waives any and all claims it may
have against Landlord or any Landlord Indemnified Parties with respect to, (i)
any and all damage to property or injury to persons in, upon or about the
Premises, the Building or the Development resulting from any act or omission
(except for the grossly negligent or intentionally wrongful act or omission) of
Landlord, (ii) any such damage caused by other tenants or persons in or about
the Building or the Development, or caused by quasi-public work, (iii) any
damage to property entrusted to employees of the Building, (iv) any loss of or
damage to property by theft or otherwise, or (v) any injury or damage to persons
or property resulting from any casualty, explosion, falling plaster or other
masonry or glass, steam, gas, electricity, water or rain which may leak from any
part of the Building or any other portion of the Development or from the pipes,
appliances or plumbing works therein or from the roof, street or subsurface or
from any other place, or resulting from dampness. Notwithstanding anything to
the contrary contained in this Lease, neither Landlord nor any Landlord
Indemnified Parties will be liable for consequential damages arising out of any
loss of the use of the Premises or any equipment or facilities therein by Tenant
or any Tenant Parties or for interference with light or other incorporeal
hereditaments. Tenant agrees to 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.
(b) INDEMNIFICATION. Tenant will be liable for, and agrees, to the maximum
extent permissible under applicable law, to promptly indemnify, protect, defend
and hold harmless Landlord and all Landlord Indemnified Parties, from and
against, any and all claims, damages, judgments, suits, causes of action,
losses, liabilities, penalties, fines, expenses and costs, including attorneys'
fees and court costs (collectively, "Indemnified Claims"), arising or resulting
from (i) any act or omission of Tenant or any Tenant Parties (as defined in
Subparagraph 8(c) above); (ii) the use of the Premises and Common Areas and
conduct of Tenant's business by Tenant or any Tenant Parties, or any other
activity, work or thing done, permitted or suffered by Tenant or any Tenant
Parties, in or about the Premises, the Building or elsewhere within the
Development; and/or (iii) any default by Tenant of any obligations on Tenant's
part to be performed under the terms of this Lease. In case any action or
proceeding is brought against Landlord or any Landlord Indemnified Parties by
reason of any such Indemnified Claims, Tenant, upon notice from Landlord, agrees
to promptly defend the same at Tenant's sole cost and expense by counsel
approved in writing by Landlord, which approval Landlord will not unreasonably
withhold. Subject to Paragraph 19.E below, Landlord agrees to indemnify, defend,
and hold Tenant, its employees, agents, and contractors harmless from all
liability, costs, or expenses, including attorneys' fees, on account of damage
to the person or property of any third party, including any other tenant in the
Building or Development to the extent caused by the acts or omissions of
Landlord, its employees, or agents.
(c) SURVIVAL; NO RELEASE OF INSURERS. Tenant's indemnification obligations under
Subparagraph 18(b) will survive the expiration or earlier termination of this
Lease. Tenant's covenants, agreements and indemnification obligation in
Subparagraphs 18(a)
12
13
and 18(b) above, are not intended to and will not relieve any insurance carrier
of its obligations under policies required to be carried by Tenant pursuant to
the provisions of this Lease.
19. INSURANCE.
(a) TENANT'S INSURANCE. On or before the earlier to occur of (i) the
Commencement Date, or (ii) the date Tenant commences any work of any type in the
Premises pursuant to this Lease (which may be prior to the Commencement Date),
and continuing throughout the entire Term hereof and any other period of
occupancy, Tenant agrees to keep in full force and effect, at its sole cost and
expense, the following insurance:
(i) "All Risks" property insurance including at least the following perils: fire
and extended coverage, smoke damage, vandalism, malicious mischief, sprinkler
leakage (including earthquake sprinkler leakage). This insurance policy must be
upon all property owned by Tenant, for which Tenant is legally liable, or which
is installed at Tenant's expense, and which is located in the Building
including, without limitation, any Tenant Improvements which satisfy the
foregoing qualification and any Alterations, and all furniture, fittings,
installations, fixtures and any other personal property of Tenant, in an amount
not less than the full replacement cost thereof. If there is a dispute as to
full replacement cost, the decision of Landlord or any mortgagee of Landlord
will be presumptive.
(ii) One (1) year insurance coverage for business interruption and loss of
income and extra expense insuring the same perils described in Subparagraph
19(a)(i) above, in such amounts as will reimburse Tenant for any direct or
indirect loss of earnings attributable to any such perils including prevention
of access to the Premises, Tenant's parking areas or the Building as a result of
any such perils.
(iii) Commercial General Liability Insurance or Comprehensive General Liability
Insurance (on an occurrence form) insuring bodily injury, personal injury and
property damage including the following divisions and extensions of coverage:
Premises and Operations; Owners and Contractors protective; blanket contractual
liability (including coverage for Tenant's indemnity obligations under this
Lease); products and completed operations; and liquor liability (if Tenant
serves alcohol on the Premises). Such insurance must have the following minimum
limits of liability: bodily injury, personal injury and property damage -
$2,000,000 each occurrence, $5,000,000 in the aggregate, provided that if
liability coverage is provided by a Commercial General Liability policy the
general aggregate limit shall apply separately and in total to this location
only (per location general aggregate), and provided further, such minimum limits
of liability may be adjusted from year to year to reflect increases in coverages
as recommended by Landlord's insurance carrier as being prudent and commercially
reasonable for tenants of first class office buildings comparable to the
Building, rounded to the nearest five hundred thousand dollars.
(iv) Comprehensive Automobile Liability insuring bodily injury and property
damage arising from all owned, non-owned and hired vehicles, if any, with
minimum limits of liability of $1,000,000 per accident.
(v) Worker's Compensation as required by the laws of the State.
(vi) Any other form or forms of insurance as Tenant or Landlord or any
mortgagees of Landlord may reasonably require from time to time in form, in
amounts, and for insurance risks against which, a prudent tenant would protect
itself, but only to the extent coverage for such risks and amounts are available
in the insurance market at commercially acceptable rates. Landlord makes no
representation that the limits of liability required to be carried by Tenant
under the terms of this Lease are adequate to protect Tenant's interests and
Tenant should obtain such additional insurance or increased liability limits as
Tenant deems appropriate.
(b) SUPPLEMENTAL TENANT INSURANCE REQUIREMENTS.
(i) All policies must be in a form reasonably satisfactory to Landlord and
issued by an insurer admitted to do business in the State.
(ii) All policies must be issued by insurers with a policyholder rating of "A"
and a financial rating of "X" in the most recent version of Best's Key Rating
Guide.
(iii) All policies must contain a requirement to notify Landlord (and Landlord's
property manager and any mortgagees or ground lessors of Landlord who are named
as additional insureds, if any) in writing not less than thirty (30) days prior
to any material change, reduction in coverage, cancellation or other termination
thereof. Tenant agrees to deliver to Landlord, as soon as practicable after
placing the required insurance, but in any event within the time frame specified
in Subparagraph 19(a) above, certificate(s) of insurance and/or if required by
Landlord, certified copies of each policy evidencing the existence of such
insurance and Tenant's compliance with the provisions of this Paragraph 19.
Tenant agrees to cause replacement policies or
13
14
certificates to be delivered to Landlord not less than thirty (30) days prior to
the expiration of any such policy or policies. If any such initial or
replacement policies or certificates are not furnished within the time(s)
specified herein, Tenant will be deemed to be in material default under this
Lease without the benefit of any additional notice or cure period provided in
Subparagraph 22(a)(iii) below, and Landlord will have the right, but not the
obligation, to procure such insurance as Landlord deems necessary to protect
Landlord's interests at Tenant's expense. If Landlord obtains any insurance that
is the responsibility of Tenant under this Xxxxxxxxx 00, Xxxxxxxx agrees to
deliver to Tenant a written statement setting forth the cost of any such
insurance and showing in reasonable detail the manner in which it has been
computed and Tenant agrees to promptly reimburse Landlord for such costs as
additional rent.
(iv) General Liability and Automobile Liability policies under Subparagraphs
19(a)(iii) and (iv) must name Landlord and Landlord's property manager (and at
Landlord's request, Landlord's mortgagees and ground lessors of which Tenant has
been informed in writing) as additional insureds and must also contain a
provision that the insurance afforded by such policy is primary insurance and
any insurance carried by Landlord and Landlord's property manager or Landlord's
mortgagees or ground lessors, if any, will be excess over and non-contributing
with Tenant's insurance.
(c) TENANT'S USE. Tenant will not keep, use, sell or offer for sale in or upon
the Premises any article which may be prohibited by any insurance policy
periodically in force covering the Building or the Development Common Areas. If
Tenant's occupancy or business in, or on, the Premises, whether or not Landlord
has consented to the same, results in any increase in premiums for the insurance
periodically carried by Landlord with respect to the Building or the Development
Common Areas or results in the need for Landlord to maintain special or
additional insurance, Tenant agrees to pay Landlord the cost of any such
increase in premiums or special or additional coverage as additional rent within
ten (10) days after being billed therefor by Landlord. In determining whether
increased premiums are a result of Tenant's use of the Premises, a schedule
issued by the organization computing the insurance rate on the Building, the
Development Common Areas or the Tenant Improvements showing the various
components of such rate, will be conclusive evidence of the several items and
charges which make up such rate. Tenant agrees to promptly comply with all
reasonable requirements of the insurance authority or any present or future
insurer relating to the Premises.
(d) LANDLORD'S POLICIES. Landlord shall at all times during the Term of this
Lease maintain in effect a policy or policies of insurance covering the Building
providing protection against any peril included under insurance practices in the
State of Colorado within the classification "fire and extended coverage"
providing protection to the extent of not less than the full replacement cost of
the Building, together with insurance against vandalism and malicious mischief.
Landlord shall also at all times during the Term of this Lease maintain in
effect public liability insurance adequate to protect against liability for
injury or death in an amount not less than $1,000,000 for injury to, or death
of, one person in any one accident and in an amount not less than $3,000,000 for
injury to or death of more than one person in any one accident and against
liability for damage to property in an amount not less than $500,000 for each
occurrence. Landlord's liability insurance policy shall name Tenant as an
additional insured, as its interest appears.
If any of Landlord's insurance policies are cancelled or cancellation
is threatened or the coverage reduced or threatened to be reduced in any way
because of the use of the Premises or any part thereof by Tenant or any assignee
or subtenant of Tenant or by anyone Tenant permits on the Premises and, if
Tenant fails to remedy the condition giving rise to such cancellation,
threatened cancellation, reduction of coverage, threatened reduction of
coverage, increase in premiums, or threatened increase in premiums, within
forty-eight (48) hours after notice thereof, Tenant will be deemed to be in
material default of this Lease and Landlord may, at its option, either terminate
this Lease or enter upon the Premises and attempt to remedy such condition, and
Tenant shall promptly pay Landlord the reasonable costs of such remedy as
additional rent. If Landlord is unable, or elects not to remedy such condition,
then Landlord will have all of the remedies provided for in this Lease in the
event of a default by Tenant.
(e) WAIVER OF SUBROGATION. Notwithstanding anything to the contrary contained
herein Landlord and Tenant hereby mutually waive and release their respective
rights of recovery against each other their officers, directors, agents and
employees (but not against other third parties) for (i) any loss on its property
capable of being insured against by "all risk" or "multiperil" form insurance
coverage whether carried or not; and (ii) all loss, cost, damage or expense
arising out of or due to any interruption of business (regardless of the cause
therefor), increased or additional costs of operation of business or other costs
or expenses whether similar or dissimilar which are capable of being insured
against under business interruption insurance whether or not carried. Each party
shall apply to their insurers to obtain said waivers and obtain any special
endorsements, if required by their insurer to evidence compliance with the
aforementioned waiver, and shall bear the cost therefor. Tenant shall also
obtain and furnish evidence to Landlord of the waiver by Tenant's worker's
compensation insurance carrier of all rights of recovery by way of subrogation
against Landlord.
14
15
20. DAMAGE OR DESTRUCTION.
(a) PARTIAL DESTRUCTION. If the Premises or the Building are damaged by fire or
other casualty to an extent not exceeding twenty-five percent (25%) of the full
replacement cost thereof, and Landlord's contractor reasonably estimates in a
writing delivered to Landlord and Tenant that the damage thereto may be
repaired, reconstructed or restored to substantially its condition immediately
prior to such damage within one hundred eighty (180) days from the date of such
casualty, and Landlord will receive insurance proceeds sufficient to cover the
costs of such repairs, reconstruction and restoration (including proceeds from
Tenant and/or Tenant's insurance which Tenant is required to deliver to Landlord
pursuant to Subparagraph 20(e) below to cover Tenant's obligation for the costs
of repair, reconstruction and restoration of any portion of the Tenant
Improvements and any Alterations for which Tenant is responsible under this
Lease), then Landlord agrees to commence and proceed diligently with the work of
repair, reconstruction and restoration and this Lease will continue in full
force and effect.
(b) SUBSTANTIAL DESTRUCTION. Any damage or destruction to the Premises or the
Building which Landlord is not obligated to repair pursuant to Subparagraph
20(a) above will be deemed a substantial destruction. In the event of a
substantial destruction, Landlord may elect to either (i) repair, reconstruct
and restore the portion of the Building or the Premises damaged by such
casualty, in which case this Lease will continue in full force and effect,
subject to Tenant's termination right contained in Subparagraph 20(d) below; or
(ii) terminate this Lease effective as of the date which is thirty (30) days
after Tenant's receipt of Landlord's election to so terminate.
(c) NOTICE. Under any of the conditions of Subparagraph 20(a) or (b) above,
Landlord agrees to give written notice to Tenant of its intention to repair or
terminate, as permitted in such paragraphs, within the earlier of sixty (60)
days after the occurrence of such casualty, or ten (10) days after Landlord's
receipt of the estimate from Landlord's contractor (the applicable time period
to be referred to herein as the "Notice Period").
(d) TENANT'S TERMINATION RIGHTS. If Landlord elects to repair, reconstruct and
restore pursuant to Subparagraph 20(b)(i) hereinabove, and if Landlord's
contractor estimates that as a result of such damage, Tenant cannot be given
reasonable use of and access to the Premises within two hundred forty (240) days
after the date of such damage, then Tenant may terminate this Lease effective
upon delivery of written notice to Landlord within ten (10) days after Landlord
delivers notice to Tenant of its election to so repair, reconstruct or restore.
(e) TENANT'S COSTS AND INSURANCE PROCEEDS. In the event of any damage or
destruction of all or any part of the Premises, Tenant agrees to immediately (i)
notify Landlord thereof, and (ii) deliver to Landlord all property insurance
proceeds received by Tenant with respect to any Tenant Improvements installed by
or at the cost of Tenant and any Alterations, but excluding proceeds for
Tenant's furniture, fixtures, equipment and other personal property, whether or
not this Lease is terminated as permitted in this Paragraph 20, and Tenant
hereby assigns to Landlord all rights to receive such insurance proceeds. If,
for any reason (including Tenant's failure to obtain insurance for the full
replacement cost of any Tenant Improvements installed by or at the cost of
Tenant and any Alterations from any and all casualties), Tenant fails to receive
insurance proceeds covering the full replacement cost of any Tenant Improvements
installed by or at the cost of Tenant and any Alterations which are damaged,
Tenant will be deemed to have self-insured the replacement cost of such items,
and upon any damage or destruction thereto, Tenant agrees to immediately pay to
Landlord the full replacement cost of such items, less any insurance proceeds
actually received by Landlord from Landlord's or Tenant's insurance with respect
to such items.
(f) ABATEMENT OF RENT. In the event of any damage, repair, reconstruction and/or
restoration described in this Paragraph 20, rent will be abated or reduced, as
the case may be, from the date of such casualty, in proportion to the degree to
which Tenant's use of the Premises is impaired until such use is restored.
Except for abatement of rent as provided hereinabove, Tenant will not be
entitled to any compensation or damages for loss of, or interference with,
Tenant's business or use or access of all or any part of the Premises or for
lost profits or any other consequential damages of any kind or nature, which
result from any such damage, repair, reconstruction or restoration.
(g) INABILITY TO COMPLETE. Notwithstanding anything to the contrary contained in
this Paragraph 20, if Landlord is obligated or elects to repair, reconstruct
and/or restore the damaged portion of the Building or the Premises pursuant to
Subparagraph 20(a) or 20(b)(i) above, but is delayed from completing such
repair, reconstruction and/or restoration beyond the date which is ninety (90)
days after the date estimated by Landlord's contractor for completion thereof by
reason of any causes (other than delays caused by Tenant, its subtenants,
employees, agents or contractors or delays which are beyond the reasonable
control of Landlord as described in Paragraph 33), then either Landlord or
Tenant may elect to terminate this Lease upon ten (10) days prior written notice
given to the other after the expiration of such ninety (90) day period.
(h) DAMAGE NEAR END OF TERM. Landlord and Tenant shall each have the right to
terminate this Lease if any damage to the Premises occurs during the last twelve
(12) months of the Term of this Lease where Landlord's contractor estimates in a
writing delivered to Landlord and Tenant that the repair, reconstruction or
restoration of such damage cannot be completed within sixty (60) days after the
date of such casualty. If either party desires to terminate this Lease under
this Subparagraph (h),
15
16
it shall provide written notice to the other party of such election within ten
(10) days after receipt of Landlord's contractor's repair estimates.
(i) WAIVER OF TERMINATION RIGHT. Landlord and Tenant agree that the foregoing
provisions of this Paragraph 20 are to govern their respective rights and
obligations in the event of any damage or destruction and supersede and are in
lieu of the provisions of any applicable law, statute, ordinance, rule,
regulation, order or ruling now or hereafter in force which provide remedies for
damage or destruction of leased premises.
(j) TERMINATION. Upon any termination of this Lease under any of the provisions
of this Paragraph 20, the parties will be released without further obligation to
the other from the date possession of the Premises is surrendered to Landlord
except for items which have accrued and are unpaid as of the date of termination
and matters which are to survive any termination of this Lease as provided in
this Lease.
21. EMINENT DOMAIN.
(a) SUBSTANTIAL TAKING. If the whole of the Premises, or such part thereof as
shall substantially interfere with Tenant's use and occupancy of the Premises,
as contemplated by this Lease, is taken for any public or quasi-public purpose
by any lawful power or authority by exercise of the right of appropriation,
condemnation or eminent domain, or sold to prevent such taking, either party
will have the right to terminate this Lease effective as of the date possession
is required to be surrendered to such authority.
(b) PARTIAL TAKING; ABATEMENT OF RENT. In the event of a taking of a portion of
the Premises which does not substantially interfere with Tenant's use and
occupancy of the Premises, then, neither party will have the right to terminate
this Lease and Landlord will thereafter proceed to make a functional unit of the
remaining portion of the Premises and rent will be abated with respect to the
part of the Premises which Tenant is deprived of on account of such taking.
(c) CONDEMNATION AWARD. In connection with any taking of the Premises or the
Building, Landlord will be entitled to receive the entire amount of any award
which may be made or given in such taking or condemnation, without deduction or
apportionment for any estate or interest of Tenant, it being expressly
understood and agreed by Tenant that no portion of any such award will be
allowed or paid to Tenant for any so-called bonus or excess value of this Lease,
and such bonus or excess value will be the sole property of Landlord. Tenant
agrees not to assert any claim against Landlord or the taking authority for any
compensation because of such taking (including any claim for bonus or excess
value of this Lease); provided, however, if any portion of the Premises is
taken, Tenant (to the extent authorized by law) will have the right to
independently recover from the condemning authority (but not from Landlord) any
compensation as may be separately awarded or recoverable by Tenant for the
taking of Tenant's furniture, fixtures, equipment and other personal property
within the Premises, for Tenant's relocation expenses, and for any loss of
goodwill or other damage to Tenant's business by reason of such taking.
(d) TEMPORARY TAKING. In the event of taking of the Premises or any part thereof
for temporary use, (i) this Lease will remain unaffected thereby and rent will
xxxxx for the duration of the taking in proportion to the extent Tenant's use of
the Premises is interfered with, and (ii) Landlord will be entitled to receive
such portion or portions of any award made for such use provided that if such
taking remains in force at the expiration or earlier termination of this Lease,
Tenant will then pay to Landlord a sum equal to the reasonable cost of
performing Tenant's obligations under Paragraph 11 with respect to surrender of
the Premises and upon such payment Tenant will be excused from such obligations.
For purpose of this Subparagraph 21(d), a temporary taking shall be defined as a
taking for a period of ninety (90) days or less.
22. DEFAULTS AND REMEDIES.
(a) DEFAULTS. The occurrence of any one or more of the following events will be
deemed a default by Tenant:
(i) The abandonment of the Premises by Tenant, which for purposes of this Lease
means any absence by Tenant from the Premises for five (5) business days or
longer while in default of any other provision of this Lease.
(ii) The failure by Tenant to make any payment of rent or additional rent or any
other payment required to be made by Tenant hereunder, as and when due, where
such failure continues for a period of three (3) business days after written
notice is received (or deemed delivered pursuant to Paragraph 9 hereof) thereof
from Landlord to Tenant; provided, however, that any such notice will be in lieu
of, and not in addition to, any notice required under applicable law.
(iii) The failure by Tenant to observe or perform any of the express or implied
covenants or provisions of this Lease to be observed or performed by Tenant,
other than as specified in Subparagraph 22(a)(i) or (ii) above, where such
failure continues (where no other period of time is expressly provided) for a
period of ten (10) days after written notice is received (or deemed
16
17
delivered pursuant to Paragraph 9 hereof) thereof from Landlord to Tenant. The
provisions of any such notice will be in lieu of, and not in addition to, any
notice required under applicable law including but not limited to unlawful
detainer actions and any successor statute or similar law). If the nature of
Tenant's default is such that more than ten (10) days are reasonably required
for its cure, then Tenant will not be deemed to be in default if Tenant, with
Landlord's concurrence, commences such cure within such ten (10) day period and
thereafter diligently prosecutes such cure to completion.
(iv) (A) The making by Tenant of any general assignment for the benefit of
creditors; (B) the filing by or against Tenant of a petition to have Tenant
adjudged a bankrupt or a petition for reorganization or arrangement under any
law relating to bankruptcy (unless, in the case of a petition filed against
Tenant, the same is dismissed within sixty (60) days); (C) the appointment of a
trustee or receiver to take possession of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease, where possession
is not restored to Tenant within thirty (30) days; or (D) the attachment,
execution or other judicial seizure of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease where such seizure
is not discharged within thirty (30) days.
(b) LANDLORD'S REMEDIES; TERMINATION. In the event of any default by Tenant, in
addition to any other remedies available to Landlord at law or in equity under
applicable law, Landlord will have the immediate right and option to terminate
this Lease and all rights of Tenant hereunder. If Landlord elects to terminate
this Lease then, to the extent permitted under applicable law, Landlord may
recover from Tenant (i) The worth at the time of award of any unpaid rent which
had been earned at the time of such termination; plus (ii) the worth at the time
of award of the amount by which the unpaid rent which would have been earned
after termination until the time of award exceeds the amount of such rent loss
that Tenant proves could have been reasonably avoided; plus (iii) the worth at
the time of award of the amount by which the unpaid rent for the balance of the
Term after the time of award exceeds the amount of such rent loss that Tenant
proves could be reasonably avoided; plus (iv) any other amount necessary to
compensate Landlord for all the detriment proximately caused by Tenant's failure
to perform its obligations under this Lease or which, in the ordinary course of
things, results therefrom including, but not limited to: attorneys' fees and
costs; brokers' commissions; the costs of refurbishment, alterations, renovation
and repair of the Premises, and removal (including the repair of any damage
caused by such removal) and storage (or disposal) of Tenant's personal property,
equipment, fixtures, Alterations, the Tenant Improvements and any other items
which Tenant is required under this Lease to remove but does not remove, as well
as the unamortized value of any free rent, reduced rent, free parking (provided
Landlord is then currently charging for surface parking within the Development),
reduced rate parking and any Tenant Improvement Allowance or other costs or
economic concessions provided, paid, granted or incurred by Landlord pursuant to
this Lease. The unamortized value of such concessions shall be determined by
taking the total value of such concessions and multiplying such value by a
fraction, the numerator of which is the number of months of the Lease Term not
yet elapsed as of the date on which the Lease is terminated, and the denominator
of which is the total number of months of the Lease Term. As used in
Subparagraphs 22(b)(i) and (ii) above, the "worth at the time of award" is
computed by allowing interest at the Interest Rate. As used in Subparagraph
22(b)(iii) above, the "worth at the time of award" is computed by discounting
such amount at the discount rate of the Federal Reserve Bank of San Francisco at
the time of award plus one percent (1%).
(c) LANDLORD'S REMEDIES; RE-ENTRY RIGHTS. In the event of any default by Tenant,
in addition to any other remedies available to Landlord under this Lease, at law
or in equity, Landlord will also have the right, with or without terminating
this Lease, to re-enter the Premises and remove all persons and property from
the Premises; such property may be removed and stored in a public warehouse or
elsewhere and/or disposed of at the sole cost and expense of and for the account
of Tenant in accordance with the provisions of Subparagraph 13(h) of this Lease
or any other procedures permitted by applicable law. No re-entry or taking
possession of the Premises by Landlord pursuant to this Subparagraph 22(c) will
be construed as an election to terminate this Lease unless a written notice of
such intention is given to Tenant or unless the termination thereof is decreed
by a court of competent jurisdiction.
(d) LANDLORD'S REMEDIES; RE-LETTING. In the event of the vacation or abandonment
of the Premises by Tenant or in the event that Landlord elects to re-enter the
Premises or takes possession of the Premises pursuant to legal proceeding or
pursuant to any notice provided by law, then if Landlord does not elect to
terminate this Lease, Landlord may from time to time, without terminating this
Lease, either recover all rent as it becomes due or relet the Premises or any
part thereof on terms and conditions as Landlord in its sole and absolute
discretion may deem advisable with the right to make alterations and repairs to
the Premises in connection with such reletting. If Landlord elects to relet the
Premises, then rents received by Landlord from such reletting will be applied:
first, to the payment of any indebtedness other than rent due hereunder from
Tenant to Landlord; second, to the payment of any cost of such reletting; third,
to the payment of the cost of any alterations and repairs to the Premises
incurred in connection with such reletting; fourth, to the payment of rent due
and unpaid hereunder; the residue, if any, will be held by Landlord and applied
to payment of future rent as the same may become due and payable hereunder.
Should that portion of such rents received from such reletting during any month,
which is applied to the payment of rent hereunder, be less than the rent payable
during that month by Tenant hereunder, then Tenant agrees to pay such deficiency
to Landlord immediately upon demand therefor by Landlord. Such deficiency will
be calculated and paid monthly. Landlord will use reasonable efforts to mitigate
its damages.
17
18
(e) LANDLORD'S REMEDIES; PERFORMANCE FOR TENANT. All covenants and agreements to
be performed by Tenant under any of the terms of this Lease are to be performed
by Tenant at Tenant's sole cost and expense and without any abatement of rent.
If Tenant fails to pay any sum of money owed to any party other than Landlord,
for which it is liable under this Lease, or if Tenant fails to perform any other
act on its part to be performed hereunder, and such failure continues for ten
(10) days after notice thereof by Landlord, Landlord may, without waiving or
releasing Tenant from its obligations, but shall not be obligated to, make any
such payment or perform any such other act to be made or performed by Tenant.
Tenant agrees to reimburse Landlord upon demand for all sums so paid by Landlord
and all necessary incidental costs, together with interest thereon at the
Interest Rate, from the date of such payment by Landlord until reimbursed by
Tenant. This remedy shall be in addition to any other right or remedy of
Landlord set forth in this Paragraph 22.
(f) LATE PAYMENT. If Tenant fails to pay any installment of rent within five (5)
days of when due or if Tenant fails to make any other payment for which Tenant
is obligated under this Lease within five (5) days of when due, such late amount
will accrue interest at the Interest Rate and Tenant agrees to pay Landlord as
additional rent such interest on such amount from the date such amount becomes
due until such amount is paid. In addition, Tenant agrees to pay to Landlord
concurrently with such late payment amount, as additional rent, a late charge
equal to ten percent (10%) of the amount due to compensate Landlord for the
extra costs Landlord will incur as a result of such late payment. The parties
agree that (i) it would be impractical and extremely difficult to fix the actual
damage Landlord will suffer in the event of Tenant's late payment, (ii) such
interest and late charge represents a fair and reasonable estimate of the
detriment that Landlord will suffer by reason of late payment by Tenant, and
(iii) the payment of interest and late charges are distinct and separate in that
the payment of interest is to compensate Landlord for the use of Landlord's
money by Tenant, while the payment of late charges is to compensate Landlord for
Landlord's processing, administrative and other costs incurred by Landlord as a
result of Tenant's delinquent payments. Acceptance of any such interest and late
charge will not constitute a waiver of the Tenant's default with respect to the
overdue amount, or prevent Landlord from exercising any of the other rights and
remedies available to Landlord. If Tenant incurs a late charge more than three
(3) times in any period of twelve (12) months during the Lease Term, then,
notwithstanding that Tenant cures the late payments for which such late charges
are imposed, Landlord will have the right to require Tenant thereafter to pay
all installments of Monthly Base Rent quarterly in advance throughout the
remainder of the Lease Term.
(g) RIGHTS AND REMEDIES CUMULATIVE. All rights, options and remedies of Landlord
contained in this Lease will be construed and held to be cumulative, and no one
of them will be exclusive of the other, and Landlord shall have the right to
pursue any one or all of such remedies or any other remedy or relief which may
be provided by law or in equity, whether or not stated in this Lease. Nothing in
this Paragraph 22 will be deemed to limit or otherwise affect Tenant's
indemnification of Landlord pursuant to any provision of this Lease.
23. LANDLORD'S DEFAULT. Landlord will not be in default in the performance of
any obligation required to be performed by Landlord under this Lease unless
Landlord fails to perform such obligation within fifteen (15) days after the
receipt of written notice from Tenant specifying in detail Landlord's failure to
perform; provided however, that if the nature of Landlord's obligation is such
that more than fifteen (15) days are required for performance, then Landlord
will not be deemed in default if it commences such performance within such
fifteen (15) day period and thereafter diligently pursues the same to
completion. Upon any default by Landlord, Tenant may exercise any of its rights
provided at law or in equity, subject to the limitations on liability set forth
in Paragraph 35 of this Lease.
24. ASSIGNMENT AND SUBLETTING.
(a) RESTRICTION ON TRANSFER. Except as expressly provided in this Paragraph 24,
Tenant will not, either voluntarily or by operation of law, assign or encumber
this Lease or any interest herein or sublet the Premises or any part thereof, or
permit the use or occupancy of the Premises by any party other than Tenant (any
such assignment, encumbrance, sublease or the like will sometimes be referred to
as a "Transfer"), without the prior written consent of Landlord, which consent
Landlord will not unreasonably withhold.
(b) CORPORATE AND PARTNERSHIP TRANSFERS. For purposes of this Paragraph 24, if
Tenant is a corporation, partnership or other entity, any transfer, assignment,
encumbrance or hypothecation of twenty-five percent (25%) or more (individually
or in the aggregate) of any stock or other ownership interest in such entity,
and/or any transfer, assignment, hypothecation or encumbrance of any controlling
ownership or voting interest in such entity, will be deemed a Transfer and will
be subject to all of the restrictions and provisions contained in this Paragraph
24. Notwithstanding the foregoing, the immediately preceding sentence will not
apply to any transfers of stock of Tenant if Tenant is a publicly-held
corporation and such stock is transferred publicly over a recognized security
exchange or over-the-counter market.
(c) PERMITTED CONTROLLED TRANSFERS. Notwithstanding the provisions of this
Paragraph 24 to the contrary, Tenant may assign this Lease or sublet the
Premises or any portion thereof ("Permitted Transfer"), without Landlord's
consent and without extending any sublease termination option to Landlord, to
any parent, subsidiary or affiliate corporation which controls, is controlled by
or is under common control with Tenant, or to any corporation resulting from a
merger or consolidation
18
19
with Tenant, or to any person or entity which acquires all the assets of
Tenant's business as a going concern, provided that: (i) at least twenty (20)
days prior to such assignment or sublease, Tenant delivers to Landlord the
financial statements and other financial and background information of the
assignee or sublessee described in Subparagraph 24(d) below; (ii) if an
assignment, the assignee assumes, in full, the obligations of Tenant under this
Lease (or if a sublease, the sublessee of a portion of the Premises or Term
assumes, in full, the obligations of Tenant with respect to such portion); (iii)
the financial net worth of the assignee or sublessee as of the time of the
proposed assignment or sublease equals or exceeds that of Tenant as of the date
of execution of this Lease: (iv) Tenant remains fully liable under this Lease;
and (v) the use of the Premises under Paragraph 8 remains unchanged.
(d) TRANSFER NOTICE. If Tenant desires to effect a Transfer, then at least
thirty (30) days prior to the date when Tenant desires the Transfer to be
effective (the "Transfer Date"), Tenant agrees to give Landlord a notice (the
"Transfer Notice"), stating the name, address and business of the proposed
assignee, sublessee or other transferee (sometimes referred to hereinafter as
"Transferee"), reasonable information (including references) concerning the
character, ownership, and financial condition of the proposed Transferee, the
Transfer Date, any ownership or commercial relationship between Tenant and the
proposed Transferee, and the consideration and all other material terms and
conditions of the proposed Transfer, all in such detail as Landlord may
reasonably require. If Landlord reasonably requests additional detail, the
Transfer Notice will not be deemed to have been received until Landlord receives
such additional detail, and Landlord may withhold consent to any Transfer until
such information is provided to it.
(e) LANDLORD'S OPTIONS. Within fifteen (15) days of Landlord's receipt of any
Transfer Notice, and any additional information requested by Landlord concerning
the proposed Transferee's financial responsibility, Landlord will elect to do
one of the following (i) consent to the proposed Transfer; (ii) refuse such
consent, which refusal shall be on reasonable grounds including, without
limitation, those set forth in Subparagraph 24(f) below; or (iii) terminate this
Lease as to all or such portion of the Premises which is proposed to be sublet
or assigned and recapture all or such portion of the Premises for reletting by
Landlord.
(f) REASONABLE DISAPPROVAL. Landlord and Tenant hereby acknowledge that
Landlord's disapproval of any proposed Transfer pursuant to Subparagraph 24(e)
will be deemed reasonably withheld if based upon any reasonable factor,
including, without limitation, any or all of the following factors: (i) if the
Building is less than eighty percent (80%) occupied, if the net effective rent
payable by the Transferee (adjusted on a rentable square foot basis) is less
than the net effective rent then being quoted by Landlord for new leases in the
Building for comparable size space for a comparable period of time; (ii) the
proposed Transferee is a governmental entity; (iii) the portion of the Premises
to be sublet or assigned is irregular in shape with inadequate means of ingress
and egress; (iv) the use of the Premises by the Transferee (A) is not permitted
by the use provisions in Paragraph 8 hereof, (B) violates any exclusive use
granted by Landlord to another tenant in the Building, or (C) otherwise poses a
risk of increased liability to Landlord; (v) the Transfer would likely result in
a significant and inappropriate increase in the use of the parking areas or
Development Common Areas by the Transferee's employees or visitors, and/or
significantly increase the demand upon utilities and services to be provided by
Landlord to the Premises; or (vi) the Transferee does not have the financial
capability to fulfill the obligations imposed by the Transfer and this Lease.
(g) ADDITIONAL CONDITIONS. A condition to Landlord's consent to any Transfer of
this Lease will be the delivery to Landlord of a true copy of the fully executed
instrument of assignment, sublease, transfer or hypothecation, and, in the case
of an assignment, the delivery to Landlord of an agreement executed by the
Transferee in form and substance reasonably satisfactory to Landlord, whereby
the Transferee assumes and agrees to be bound by all of the terms and provisions
of this Lease and to perform all of the obligations of Tenant hereunder. As a
condition for granting its consent to any assignment or sublease, Landlord may
require that the assignee or sublessee remit directly to Landlord on a monthly
basis, all monies due to Tenant by said assignee or sublessee. As a condition to
Landlord's consent to any sublease, such sublease must provide that it is
subject and subordinate to this Lease and to all mortgages; that Landlord may
enforce the provisions of the sublease, including collection of rent; that in
the event of termination of this Lease for any reason, including without
limitation a voluntary surrender by Tenant, or in the event of any reentry or
repossession of the Premises by Landlord, Landlord may, at its option, either
(i) terminate the sublease, or (ii) take over all of the right, title and
interest of Tenant, as sublessor, under such sublease, in which case such
sublessee will attorn to Landlord, but that nevertheless Landlord will not (1)
be liable for any previous act or omission of Tenant under such sublease, (2) be
subject to any defense or offset previously accrued in favor of the sublessee
against Tenant, or (3) be bound by any previous modification of any sublease
made without Landlord's written consent, or by any previous prepayment by
sublessee of more than one month's rent.
(h) EXCESS RENT. If Landlord consents to any assignment of this Lease, Tenant
agrees to pay to Landlord, as additional rent, one-half of all sums and other
consideration payable to and for the benefit of Tenant by the assignee on
account of the assignment, as and when such sums and other consideration are due
and payable by the assignee to or for the benefit of Tenant (or, if Landlord so
requires, and without any release of Tenant's liability for the same, Tenant
agrees to instruct the assignee to pay such sums and other consideration
directly to Landlord). If for any sublease, Tenant receives rent or other
consideration, either initially or over the term of the sublease, in excess of
the rent fairly allocable to the portion of the Premises which is
19
20
subleased based on square footage, Tenant agrees to pay to Landlord as
additional rent one-half of the excess of each such payment of rent or other
consideration received by Tenant promptly after its receipt. In calculating
excess rent or other consideration which may be payable to Landlord under this
paragraph, Tenant will be entitled to deduct commercially reasonable third party
brokerage commissions, tenant improvement allowance and attorneys' fees
reasonably and actually expended by Tenant in connection with such assignment or
subletting if acceptable written evidence of such expenditures is provided to
Landlord.
(i) TERMINATION RIGHTS. If Tenant requests Landlord's consent to any assignment
or subletting of all or a portion of the Premises, Landlord will have the right,
as provided in Subparagraph 24(e), to terminate this Lease as to all or such
portion of the Premises which is proposed to be sublet or assigned effective as
of the date Tenant proposes to sublet or assign all or less than all of the
Premises. Landlord's right to terminate this Lease as to less than all of the
Premises proposed to be sublet or assigned will not terminate as to any future
additional subletting or assignment as a result of Landlord's consent to a
subletting of less than all of the Premises or Landlord's failure to exercise
its termination right with respect to any subletting or assignment. Landlord
will exercise such termination right, if at all, by giving written notice to
Tenant within thirty (30) days of receipt by Landlord of the financial
responsibility information required by this Paragraph 24. Tenant understands and
acknowledges that the option, as provided in this Paragraph 24, to terminate
this Lease as to all or such portion of the Premises which is proposed to be
sublet or assigned rather than approve the subletting or assignment of all or a
portion of the Premises, is a material inducement for Landlord's agreeing to
lease the Premises to Tenant upon the terms and conditions herein set forth. In
the event of any such termination with respect to less than all of the Premises,
the cost of segregating the recaptured space from the balance of the Premises
will be paid by Tenant and Tenant's future monetary obligations under this Lease
will be reduced proportionately on a square footage basis to correspond to the
balance of the Premises which Tenant continues to lease.
(j) NO RELEASE. No Transfer will release Tenant of Tenant's obligations under
this Lease or alter the primary liability of Tenant to pay the rent and to
perform all other obligations to be performed by Tenant hereunder. Landlord may
require that any Transferee remit directly to Landlord on a monthly basis, all
monies due Tenant by said Transferee. However, the acceptance of rent by
Landlord from any other person will not be deemed to be a waiver by Landlord of
any provision hereof. Consent by Landlord to one Transfer will not be deemed
consent to any subsequent Transfer. In the event of default by any Transferee of
Tenant or any successor of Tenant in the performance of any of the terms hereof,
Landlord may proceed directly against Tenant without the necessity of exhausting
remedies against such Transferee or successor. Landlord may consent to
subsequent assignments of this Lease or sublettings or amendments or
modifications to this Lease with assignees of Tenant, without notifying Tenant,
or any successor of Tenant, and without obtaining its or their consent thereto
and any such actions will not relieve Tenant of liability under this Lease.
(k) ADMINISTRATIVE AND ATTORNEYS' FEES. If Tenant effects a Transfer or requests
the consent of Landlord to any Transfer (whether or not such Transfer is
consummated), then, upon demand, Tenant agrees to pay Landlord a non-refundable
administrative fee of Two Hundred Fifty Dollars ($250.00), plus any reasonable
attorneys' and paralegal fees incurred by Landlord in connection with such
Transfer or request for consent (whether attributable to Landlord's in-house
attorneys or paralegals or otherwise) not to exceed One Hundred Dollars
($100.00) for each one thousand (1,000) rentable square feet of area contained
within the Premises or portion thereof to be assigned or sublet. Acceptance of
the Two Hundred Fifty Dollar ($250.00) administrative fee and/or reimbursement
of Landlord's attorneys' and paralegal fees will in no event obligate Landlord
to consent to any proposed Transfer.
25. SUBORDINATION. Without the necessity of any additional document being
executed by Tenant for the purpose of effecting a subordination, and at the
election of Landlord or any mortgagee or beneficiary with a deed of trust
encumbering the Building and/or the Development, or any lessor of a ground or
underlying lease with respect to the Building, this Lease will be subject and
subordinate at all times to: (i) all ground leases or underlying leases which
may now exist or hereafter be executed affecting the Building; and (ii) the lien
of any mortgage or deed of trust which may now exist or hereafter be executed
for which the Building, the Development or any leases thereof, or Landlord's
interest and estate in any of said items, is specified as security.
Notwithstanding the foregoing, Landlord reserves the right to subordinate any
such ground leases or underlying leases or any such liens to this Lease. If any
such ground lease or underlying lease terminates for any reason or any such
mortgage or deed of trust is foreclosed or a conveyance in lieu of foreclosure
is made for any reason, at the election of Landlord's successor in interest,
Tenant agrees to attorn to and become the tenant of such successor in which
event Tenant's right to possession of the Premises will not be disturbed as long
as Tenant is not in default under this Lease. Tenant hereby waives its rights
under any law which gives or purports to give Tenant any right to terminate or
otherwise adversely affect this Lease and the obligations of Tenant hereunder in
the event of any such foreclosure proceeding or sale. Tenant covenants and
agrees to execute and deliver, upon demand by Landlord and in the form
reasonably required by Landlord, any additional documents evidencing the
priority or subordination of this Lease and Tenant's attornment agreement with
respect to any such ground lease or underlying leases or the lien of any such
mortgage or deed of trust; provided such document also acknowledges that so long
as Tenant is not in default under this Lease, Tenants right of use and
possession in the Premises will not be disturbed. If Tenant fails to sign and
return any such documents within ten (10) days of receipt, Tenant will be in
default hereunder. Landlord will provide to Tenant a
20
21
non-disturbance agreement from the current lender for the Premises substantially
in the form attached hereto as Exhibit J within ten (10) business days after
mutual execution of the Lease.
26. ESTOPPEL CERTIFICATE.
(a) TENANT'S OBLIGATIONS. Within ten (10) days following any written request
which Landlord may make from time to time, Tenant agrees to execute and deliver
to Landlord a statement, in a form substantially similar to the form of Exhibit
"G" attached hereto or as may reasonably be required by Landlord's lender,
certifying: (i) the date of commencement of this Lease; (ii) the fact that this
Lease is unmodified and in full force and effect (or, if there have been
modifications, that this Lease is in full force and effect, and stating the date
and nature of such modifications); (iii) the date to which the rent and other
sums payable under this Lease have been paid; (iv) to Tenant's knowledge after
reasonable inquiry, that there are no current defaults under this Lease by
either Landlord or Tenant except as specified in Tenant's statement; and (v)
such other matters reasonably requested by Landlord. Landlord and Tenant intend
that any statement delivered pursuant to this Paragraph 26 may be relied upon by
any mortgagee, beneficiary, purchaser or prospective purchaser of the Building
or any interest therein.
(b) TENANT'S FAILURE TO DELIVER. Tenant's failure to deliver such statement
within such time will be conclusive upon Tenant (i) that this Lease is in full
force and effect, without modification except as may be represented by Landlord,
(ii) that there are no uncured defaults in Landlord's performance, and (iii)
that not more than one (1) month's rent has been paid in advance. Without
limiting the foregoing, if Tenant fails to deliver any such statement within
such ten (10) day period, Landlord may deliver to Tenant an additional request
for such statement and Tenant's failure to deliver such statement to Landlord
within ten (10) days after delivery of such additional request will constitute a
default under this Lease. Tenant agrees to indemnify and protect Landlord from
and against any and all claims, damages, losses, liabilities and expenses
(including attorneys' fees and costs) attributable to any failure by Tenant to
timely deliver any such estoppel certificate to Landlord as required by this
Paragraph 26.
27. [INTENTIONALLY OMITTED]
28. RULES AND REGULATIONS. Tenant agrees to faithfully observe and comply with
the "Rules and Regulations," a copy of which is attached hereto and incorporated
herein by this reference as Exhibit "H", and all reasonable and
nondiscriminatory modifications thereof and additions thereto from time to time
put into effect by Landlord. Landlord will not be responsible to Tenant for the
violation or non-performance by any other tenant or occupant of the Building of
any of the Rules and Regulations.
29. MODIFICATION AND CURE RIGHTS OF LANDLORD'S MORTGAGEES AND LESSORS.
(a) MODIFICATIONS. If, in connection with Landlord's obtaining or entering into
any financing or ground lease for any portion of the Building or the
Development, the lender or ground lessor requests modifications to this Lease,
Tenant, within ten (10) days after request therefor, agrees to execute an
amendment to this Lease incorporating such modifications, provided such
modifications are reasonable and do not increase the obligations of Tenant under
this Lease or adversely affect the leasehold estate created by this Lease.
(b) CURE RIGHTS. In the event of any default on the part of Landlord, Tenant
will give notice by registered or certified mail to any beneficiary of a deed of
trust or mortgage covering the Premises or ground lessor of Landlord whose
address has been furnished to Tenant, and Tenant agrees to offer such
beneficiary, mortgagee or ground lessor a reasonable opportunity to cure the
default (including with respect to any such beneficiary or mortgagee, time to
obtain possession of the Premises, subject to this Lease and Tenant's rights
hereunder, by power of sale or a judicial foreclosure, if such should prove
necessary to effect a cure).
30. DEFINITION OF LANDLORD. The term "Landlord," as used in this Lease, so far
as covenants or obligations on the part of Landlord are concerned, means and
includes only the owner or owners, at the time in question, of the fee title of
the Premises or the lessees under any ground lease, if any. In the event of any
transfer, assignment or other conveyance or transfers of any such title (other
than a transfer for security purposes only), Landlord herein named (and in case
of any subsequent transfers or conveyances, the then grantor) will be
automatically relieved from and after the date of such transfer, assignment or
conveyance of all liability as respects the performance of any covenants or
obligations on the part of Landlord contained in this Lease thereafter to be
performed, so long as the transferee assumes in writing all such covenants and
obligations of Landlord arising after the date of such transfer. Landlord and
Landlord's transferees and assignees have the absolute right to transfer all or
any portion of their respective title and interest in the Development, the
Building, the Premises and/or this Lease without the consent of Tenant, and such
transfer or subsequent transfer will not be deemed a violation on Landlord's
part of any of the terms and conditions of this Lease.
31. WAIVER. The waiver by either party of any breach of any term, covenant or
condition herein contained will not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant or condition herein contained,
nor will
21
22
any custom or practice which may develop between the parties in the
administration of the terms hereof be deemed a waiver of or in any way affect
the right of either party to insist upon performance in strict accordance with
said terms. The subsequent acceptance of rent or any other payment hereunder by
Landlord will not be deemed to be a waiver of any preceding breach by Tenant of
any term, covenant or condition of this Lease, other than the failure of Tenant
to pay the particular rent so accepted, regardless of Landlord's knowledge of
such preceding breach at the time of acceptance of such rent. No acceptance by
Landlord of a lesser sum than the basic rent and additional rent or other sum
then due will be deemed to be other than on account of the earliest installment
of such rent or other amount due, nor will any endorsement or statement on any
check or any letter accompanying any check be deemed an accord and satisfaction,
and Landlord may accept such check or payment without prejudice to Landlord's
right to recover the balance of such installment or other amount or pursue any
other remedy provided in this Lease. The consent or approval of Landlord to or
of any act by Tenant requiring Landlord's consent or approval will not be deemed
to waive or render unnecessary Landlord's consent or approval to or of any
subsequent similar acts by Tenant.
32. PARKING.
(a) GRANT OF PARKING RIGHTS. So long as this Lease is in effect and provided
Tenant is not in default hereunder, Landlord grants to Tenant and Tenant's
Authorized Users (as defined below) a license to use the number of parking
spaces designated in Subparagraph 1(s) subject to the terms and conditions of
this Paragraph 32 and the Rules and Regulations regarding parking contained in
Exhibit "H" attached hereto. Except as otherwise expressly set forth in
Subparagraph 1(s), as consideration for the use of such parking spaces, Tenant
agrees to pay to Landlord or, at Landlord's election, directly to Landlord's
parking operator, as additional rent under this Lease, the prevailing parking
rate for each such parking space as established by Landlord in its sole and
absolute discretion from time to time. Tenant agrees that all parking charges
will be payable on a monthly basis concurrently with each monthly payment of
Monthly Base Rent. Tenant agrees to submit to Landlord or, at Landlord's
election, directly to Landlord's parking operator with a copy to Landlord,
written notice in a form reasonably specified by Landlord containing the names,
home and office addresses and telephone numbers of those persons who are
authorized by Tenant to use Tenant's parking spaces on a monthly basis
("Tenant's Authorized Users") and shall use its best efforts to identify each
vehicle of Tenant's Authorized Users by make, model and license number. Tenant
agrees to deliver such notice prior to the beginning of the Term of this Lease
and to periodically update such notice as well as upon specific request by
Landlord or Landlord's parking operator to reflect changes to Tenant's
Authorized Users or their vehicles.
(b) USE OF PARKING SPACES. Tenant will not use or allow any of Tenant's
Authorized Users to use any parking spaces which have been specifically assigned
by Landlord to other tenants or occupants or for other uses such as visitor
parking or which have been designated by any governmental entity as being
restricted to certain uses. Tenant will not be entitled to increase or reduce
its parking privileges applicable to the Premises during the Term of the Lease
except as follows: If at any time Tenant desires to increase or reduce the
number of parking spaces allocated to it under the terms of this Lease, Tenant
must notify Landlord in writing of such desire and Landlord will have the right,
in its sole and absolute discretion, to either (a) approve such requested
increase in the number of parking spaces allocated to Tenant (with an
appropriate increase to the additional rent payable by Tenant for such
additional spaces based on the then prevailing parking rates), (b) approve such
requested decrease in the number of parking spaces allocated to Tenant (with an
appropriate reduction in the additional rent payable by Tenant for such
eliminated parking spaces based on the then prevailing parking rates), or (c)
disapprove such requested increase or decrease in the number of parking spaces
allocated to Tenant. Promptly following receipt of Tenant's written request,
Landlord will provide Tenant with written notice of its decision including a
statement of any adjustments to the additional rent payable by Tenant for
parking under the Lease, if applicable.
(c) GENERAL PROVISIONS. Except as otherwise expressly set forth in Subparagraph
1(s) and 32(a), Landlord reserves the right to set and increase monthly fees
and/or daily and hourly rates for parking privileges from time to time during
the Term of the Lease. Landlord may assign any unreserved and unassigned parking
spaces and/or make all or any portion of such spaces reserved, if Landlord
reasonably determines that it is necessary for orderly and efficient parking or
for any other reasonable reason. Failure to pay the rent for any particular
parking spaces or failure to comply with any terms and conditions of this Lease
applicable to parking may be treated by Landlord as a default under this Lease
and, in addition to all other remedies available to Landlord under the Lease, at
law or in equity, Landlord may elect to recapture such parking spaces for the
balance of the Term of this Lease if Tenant does not cure such failure within
the applicable cure period set forth in Paragraph 22 of this Lease. In such
event, Tenant and Tenant's Authorized Users will be deemed visitors for purposes
of parking space use and will be entitled to use only those parking areas
specifically designated for visitor parking subject to all provisions of this
Lease applicable to such visitor parking use. Except in connection with an
assignment or sublease expressly permitted under the terms of this Lease,
Tenant's parking rights and privileges described herein are personal to Tenant
and may not be assigned or transferred, or otherwise conveyed, without
Landlord's prior written consent, which consent Landlord may withhold in its
sole and absolute discretion. In any event, under no circumstances may Tenant's
parking rights and privileges be transferred, assigned or otherwise conveyed
separate and apart from Tenant's interest in this Lease.
(d) COOPERATION WITH TRAFFIC MITIGATION MEASURES. Tenant agrees to use its
reasonable, good faith efforts to cooperate in traffic mitigation programs which
may be undertaken by Landlord independently, or in cooperation with local
municipalities
22
23
or governmental agencies or other property owners in the vicinity of the
Building. Such programs may include, but will not be limited to, carpools,
vanpools and other ride sharing programs, public and private transit, flexible
work hours, preferential assigned parking programs and programs to coordinate
tenants within the Development with existing or proposed traffic mitigation
programs.
(e) PARKING RULES AND REGULATIONS. Tenant and Tenant's Authorized Users shall
comply with all rules and regulations regarding parking set forth in Exhibit "H"
attached hereto and Tenant agrees to cause its employees, subtenants, assignees,
contractors, suppliers, customers and invitees to comply with such rules and
regulations. Landlord reserves the right from time to time to modify and/or
adopt such other reasonable and non-discriminatory rules and regulations for the
parking facilities as it deems reasonably necessary for the operation of the
parking facilities.
33. FORCE MAJEURE. If either Landlord or Tenant is delayed, hindered in or
prevented from the performance of any act required under this Lease by reason of
strikes, lock-outs, labor troubles, inability to procure standard materials,
failure of power, restrictive governmental laws, regulations or orders or
governmental action or inaction (including failure, refusal or delay in issuing
permits, approvals and/or authorizations which is not the result of the action
or inaction of the party claiming such delay), riots, civil unrest or
insurrection, war, fire, earthquake, flood or other natural disaster, unusual
and unforeseeable delay which results from an interruption of any public
utilities (e.g., electricity, gas, water, telephone) or other unusual and
unforeseeable delay not within the reasonable control of the party delayed in
performing work or doing acts required under the provisions of this Lease, then
performance of such act will be excused for the period of the delay and the
period for the performance of any such act will be extended for a period
equivalent to the period of such delay. The provisions of this Paragraph 33 will
not operate to excuse Tenant from prompt payment of rent or any other payments
required under the provisions of this Lease.
34. SIGNS. Landlord will designate the location on the exterior of the Building
for up to two Tenant identification signs. Tenant agrees to have Landlord
install and maintain Tenant's identification signs in such designated locations
in accordance with this Paragraph 34 at Tenant's sole cost and expense. Tenant
has no right to install Tenant identification signs in any other location in, on
or about the Premises or the Development except as expressly authorized below.
The size, design, color and other physical aspects of any and all permitted
sign(s) will be subject to (i) Landlord's reasonable written approval prior to
installation, (ii) any covenants, conditions or restrictions governing the
Premises, and (iii) any applicable municipal or governmental permits and
approvals. Landlord acknowledges that illuminated signs on the Building are
allowed under current laws applicable to the Jefferson Corporate Center, and
Tenant, so long as it leases the entire Building, shall be allowed to erect and
maintain, at its sole cost and expense, the maximum size and number of signs
allowed by applicable laws, rules and regulations on the exterior of the
Building. Landlord, at Tenant's sole cost and expense, shall reasonably
cooperate in any application for approval or consent (or modification of any
prior consent or approval) of any applicable governmental entity in connection
with Tenant's signage rights hereunder. Tenant will be solely responsible for
all costs for installation, maintenance, repair and removal of any Tenant
identification sign(s). If Tenant fails to remove Tenant's sign(s) upon
termination of this Lease and repair any damage caused by such removal, Landlord
may do so at Tenant's sole cost and expense. Tenant agrees to reimburse Landlord
for all costs incurred by Landlord to effect any installation, maintenance or
removal on Tenant's account, which amount will be deemed additional rent, and
may include, without limitation, all sums disbursed, incurred or deposited by
Landlord including Landlord's costs, expenses and actual attorneys' fees with
interest thereon at the Interest Rate from the date of Landlord's demand until
paid by Tenant. Any sign rights granted to Tenant under this Lease are personal
to Tenant and may not be assigned, transferred or otherwise conveyed to any
assignee or subtenant of Tenant without Landlord's prior written consent, which
consent Landlord may withhold in its reasonable discretion. Landlord agrees to
use commercially reasonable efforts to preserve Tenant's signage visibility from
C-470 when selecting future locations and elevations for other buildings in the
Development. Nevertheless, Landlord will not be obligated to develop Sites 7, 9
or 10 as depicted on Exhibit "A-I" prior to developing Sites 2 through 5. In the
event Landlord or LSI, during the initial Term of this Lease, develops a
speculative office building (expressly excluding a build-to-suit project) on
Sites 4 or 5 as depicted on Exhibit "A-I" attached hereto, then Tenant shall
have the right to utilize for the balance of the Term of this Lease up to
one-third of a two-sided, stone pylon monument sign at a location near C-470
which is acceptable to Landlord, Tenant and any governmental entity with
jurisdiction over such location. If Landlord completes construction of a
speculative office building (expressly excluding a build-to-suit project) on
Sites 4 or 5 within the first three Lease Years of the initial Term, then
Landlord shall bear the cost to construct and install the monument sign. If
Landlord completes construction of a speculative office building (expressly
excluding a build-to-suit project) on Sites 4 or 5 within the fourth or fifth
Lease Years of the initial Term, then the cost to construct and install the
monument sign shall be equally split with Tenant. Notwithstanding any of the
foregoing, all costs of lettering and design with respect to Tenant's lettering
and logo on such sign (and the cost to affix such lettering and logo onto such
sign) shall be at Tenant's sole cost and expense. Tenant shall have no rights
with respect to the monument sign if development of a speculative office
building (expressly excluding a build-to-suit project) on Sites 4 or 5 is
completed after the initial Term of this Lease. Additionally, if Tenant leases
over 50% of the square footage of any building (speculative, build-to-suit or
otherwise) constructed on Sites 4 or 5, and Tenant has the right to utilize any
exterior signage rights on such building, then Tenant shall have no rights with
respect to the monument sign referenced above and Tenant, at its sole cost and
expense, will thereafter remove all of its lettering and logos from such
monument sign.
23
24
35. LIMITATION ON LIABILITY. In consideration of the benefits accruing
hereunder, Tenant on behalf of itself and all successors and assigns of Tenant
covenants and agrees that, in the event of any actual or alleged failure, breach
or default hereunder by Landlord: (a) Tenant's recourse against Landlord for
monetary damages will be limited to Landlord's interest in the Building
including, subject to the prior rights of any Mortgagee, Landlord's interest in
the rents of the Building and any insurance proceeds payable to Landlord; (b)
Except as may be necessary to secure jurisdiction of the partnership or company,
no partner or member of Landlord shall be sued or named as a party in any suit
or action and no service of process shall be made against any partner or member
of Landlord; (c) No partner or member of Landlord shall be required to answer or
otherwise plead to any service of process; (d) No judgment will be taken against
any partner or member of Landlord and any judgment taken against any partner or
member of Landlord may be vacated and set aside at any time after the fact; (e)
No writ of execution will be levied against the assets of any partner or member
of Landlord; (f) The obligations under this Lease do not constitute personal
obligations of the individual members, partners, directors, officers or
shareholders of Landlord, and Tenant shall not seek recourse against the
individual members, partners, directors, officers or shareholders of Landlord or
any of their personal assets for satisfaction of any liability in respect to
this Lease; and (g) These covenants and agreements are enforceable both by
Landlord and also by any partner or member of Landlord.
36. FINANCIAL STATEMENTS. Prior to the execution of this Lease by Landlord and
at any time during the Term of this Lease upon ten (10) days prior written
notice from Landlord, Tenant agrees to provide Landlord with a current financial
statement for Tenant and any guarantors of Tenant and financial statements for
the two (2) years prior to the current financial statement year for Tenant and
any guarantors of Tenant. Such statements are to be prepared in accordance with
generally accepted accounting principles and, if such is the normal practice of
Tenant, audited by an independent certified public accountant.
37. QUIET ENJOYMENT. Landlord covenants and agrees with Tenant that upon Tenant
paying the rent required under this Lease and paying all other charges and
performing all of the covenants and provisions on Tenant's part to be observed
and performed under this Lease, Tenant shall peaceably and quietly have, hold
and enjoy the Premises in accordance with this Lease without hindrance or
molestation by Landlord or its employees or agents.
38. MISCELLANEOUS.
(a) CONFLICT OF LAWS. This Lease shall be governed by and construed solely
pursuant to the laws of the State, without giving effect to choice of law
principles thereunder.
(b) SUCCESSORS AND ASSIGNS. Except as otherwise provided in this Lease, all of
the covenants, conditions and provisions of this Lease shall be binding upon and
shall inure to the benefit of the parties hereto and their respective heirs,
personal representatives, successors and assigns.
(c) PROFESSIONAL FEES AND COSTS. If either Landlord or Tenant should bring suit
against the other with respect to this Lease, then all costs and expenses,
including without limitation, actual professional fees and costs such as
appraisers', accountants' and attorneys' fees and costs, incurred by the party
which prevails in such action, whether by final judgment or out of court
settlement, shall be paid by the other party, which obligation on the part of
the other party shall be deemed to have accrued on the date of the commencement
of such action and shall be enforceable whether or not the action is prosecuted
to judgment. As used herein, attorneys' fees and costs shall include, without
limitation, attorneys' fees, costs and expenses incurred in connection with any
(i) postjudgment motions; (ii) contempt proceedings; (iii) garnishment, levy,
and debtor and third party examination; (iv) discovery; and (v) bankruptcy
litigation.
(d) TERMS AND HEADINGS. The words "Landlord" and "Tenant" as used herein shall
include the plural as well as the singular. Words used in any gender include
other genders. The paragraph headings of this Lease are not a part of this Lease
and shall have no effect upon the construction or interpretation of any part
hereof.
(e) TIME. Time is of the essence with respect to the performance of every
provision of this Lease in which time of performance is a material factor.
(f) PRIOR AGREEMENT; AMENDMENTS. This Lease constitutes and is intended by the
parties to be a final, complete and exclusive statement of their entire
agreement with respect to the subject matter of this Lease. This Lease
supersedes any and all prior and contemporaneous agreements and understandings
of any kind relating to the subject matter of this Lease. There are no other
agreements, understandings, representations, warranties, or statements, either
oral or in written form, concerning the subject matter of this Lease. No
alteration, modification, amendment or interpretation of this Lease shall be
binding on the parties unless contained in a writing which is signed by both
parties.
24
25
(g) SEPARABILITY. The provisions of this Lease shall be considered separable
such that if any provision or part of this Lease is ever held to be invalid,
void or illegal under any law or ruling, all remaining provisions of this Lease
shall remain in full force and effect to the maximum extent permitted by law.
(h) RECORDING. Neither Landlord nor Tenant shall record this Lease nor a short
form memorandum thereof without the consent of the other.
(i) COUNTERPARTS. This Lease may be executed in one or more counterparts, each
of which shall constitute an original and all of which shall be one and the same
agreement.
(j) NONDISCLOSURE OF LEASE TERMS. Each party acknowledges and agrees that the
terms of this Lease are confidential and constitute proprietary information.
Disclosure of the terms could adversely affect the ability of each party to
compete in the marketplace. Accordingly, each party agrees that neither it nor
its members, partners, officers, directors, employees, agents and attorneys
shall intentionally and voluntarily disclose the terms and conditions of this
Lease to: (i) any newspaper or other publication; (ii) any other tenant or
apparent prospective tenant of the Building or other portion of the Development;
(iii) any competitor of Tenant; or (iv) any real estate agent either directly or
indirectly without the prior written consent of the other party; provided,
however, that Tenant may disclose the terms to prospective subtenants,
prospective assignees, prospective lenders and its auditors and Landlord may
disclose the terms to prospective lenders, prospective purchasers and its
auditors.
(k) NON-DISCRIMINATION. Tenant acknowledges and agrees that there shall be no
discrimination against, or segregation of, any person, group of persons, or
entity on the basis of race, color, creed, religion, age, sex, marital status,
national origin, or ancestry in the leasing, subleasing, transferring,
assignment, occupancy, tenure, use, or enjoyment of the Premises, or any portion
thereof.
39. EXECUTION OF LEASE.
(a) JOINT AND SEVERAL OBLIGATIONS. If more than one person executes this Lease
as Tenant, their execution of this Lease will constitute their covenant and
agreement that (i) each of them is jointly and severally liable for the keeping,
observing and performing of all of the terms, covenants, conditions, provisions
and agreements of this Lease to be kept, observed and performed by Tenant, and
(ii) the term "Tenant" as used in this Lease means and includes each of them
jointly and severally. The act of or notice from, or notice or refund to, or the
signature of any one or more of them, with respect to the tenancy of this Lease,
including, but not limited to, any renewal, extension, expiration, termination
or modification of this Lease, will be binding upon each and all of the persons
executing this Lease as Tenant with the same force and effect as if each and all
of them had so acted or so given or received such notice or refund or so signed.
(b) TENANT AS CORPORATION OR PARTNERSHIP. If Tenant executes this Lease as a
corporation or partnership, then Tenant and the persons executing this Lease on
behalf of Tenant represent and warrant that such entity is duly qualified and in
good standing to do business in Colorado and that the individuals executing this
Lease on Tenant's behalf are duly authorized to execute and deliver this Lease
on its behalf, and in the case of a corporation, in accordance with a duly
adopted resolution of the board of directors of Tenant, a copy of which is to be
delivered to Landlord on execution hereof, if requested by Landlord, and in
accordance with the by-laws of Tenant, and, in the case of a partnership, in
accordance with the partnership agreement and the most current amendments
thereto, if any, copies of which are to be delivered to Landlord on execution
hereof, if requested by Landlord, and that this Lease is binding upon Tenant in
accordance with its terms.
(c) EXAMINATION OF LEASE. Submission of this instrument by Landlord to Tenant
for examination or signature by Tenant does not constitute a reservation of or
option for lease, and it is not effective as a lease or otherwise until
execution by and delivery to both Landlord and Tenant.
25
26
IN WITNESS WHEREOF, the parties have caused this Lease to be duly executed by
their duly authorized representatives as of the date first above written.
TENANT: LANDLORD:
HIGH SPEED ACCESS CORP., XXXX-LSI I, LLC, a Delaware limited liability company
a Delaware corporation
By: KDC-OC, LLC, a Delaware limited liability
By: /s/ High Speed Access Corp. company, its Co-Manager
---------------------------
By: Xxxx Development Company, LLC, a Delaware
Print Name: limited liability company, its Sole Member
---------------------
By: /s/ Xxxx Development Company, LLC
Print Title: --------------------------------------------
--------------------
Name:
--------------
By:
----------------------------- Title:
------------
Print Name:
---------------------
Print Title:
-------------------- By: Land Securities Investors, Ltd., a Colorado limited
partnership, its Co-Manager
By: Sunset Management Services, Inc., a Colorado
corporation, its General Partner
By: /s/ Sunset Management Services, Inc.
--------------------------------------------
Name:
--------------
Title:
------------
26
27
ADDENDUM TO LEASE
This ADDENDUM is attached to, made a part of, incorporated
into and amends and supplements that certain Office Building Lease dated
February 4, 2000 (the "Lease"), by and between XXXX-LSI I, LLC, A DELAWARE
LIMITED LIABILITY COMPANY ("Landlord"), and HIGH SPEED ACCESS CORP., A DELAWARE
CORPORATION ("Tenant"). Landlord and Tenant agree that, notwithstanding anything
contained in the Lease to the contrary, the provisions set forth in this
Addendum will be deemed to be a part of the Lease and will supersede any
contrary provision in the Lease and shall prevail and control for all purposes.
All references in the Lease and this Addendum to the defined term "Lease" are to
be construed to mean the Lease as amended and supplemented by this Addendum.
Terms which are not defined in this Addendum have the meanings given to them in
the Lease. The paragraphs below are numbered consecutively with those in the
Lease.
40. OPTIONS TO EXTEND. As additional consideration for the covenants of Tenant
hereunder, Landlord hereby grants unto Tenant two options (each an "Option") to
extend the Term of the Lease for two (2) additional terms of five (5) years
(each an "Option Term"). The Option shall apply to all of the space currently
under Lease at the time such Option is exercised and shall be on the following
terms and conditions:
A. Written notice (each "Tenant's Notice") of Tenant's interest in
exercising the applicable Option shall be given to Landlord (i) as to the first
Option Term, no earlier than twelve (12) months and no later than nine (9)
months prior to the expiration of the initial Term of the Lease; and (ii) as to
the second Option Term, no earlier than twelve (12) months and no later than
nine (9) months prior to the expiration of the first Option Term. Not later than
thirty (30) days after receiving Tenant's Notice, Landlord shall give to Tenant
notice of the rental rate applicable during the applicable Option Term, in
accordance with subparagraph E below ("Landlord's Notice").
B. Tenant shall have fifteen (15) days following Tenant's receipt of
Landlord's Notice within which to exercise the then applicable Option by
delivering written notice of such exercise to Landlord under the rental rate set
forth in Landlord's Notice. If Tenant timely exercises the then applicable
Option, the Lease shall be deemed extended and thereafter the parties shall
execute an amendment to the Lease setting forth the terms of the extension.
C. Unless Landlord is timely notified by Tenant in accordance with
subparagraphs A and B above, it shall be conclusively deemed that Tenant does
not desire to exercise an Option, and the Lease shall expire in accordance with
its terms, at the end of the initial Term of the Lease (or the first Option
Term, as applicable).
D. Tenant's right to exercise an Option shall be conditioned on: (i)
Tenant's not being in default under the Lease at the time of exercise of the
then applicable Option or at the time of the commencement of the applicable
Option Term; and (ii) Tenant's not having subleased more than twenty-five
percent (25%) of the Premises or assigned its interest under the Lease as of the
commencement of the applicable Option Term or having vacated more than
twenty-five percent (25%) of the Premises.
E. The Options granted hereunder shall be upon the terms and conditions
contained in the Lease except that there shall be no further option to extend
the term of the Lease beyond the second Option Term and except that the rental
to be paid by Tenant to Landlord during each such Option Term shall be the
comparable renewal rate for comparable renewal space in first-class office
buildings in the Jefferson Corporate Center as of the date of Landlord's Notice,
but in no event shall the rental rate be less than the rent (including Base
Rent, Tenant's Percentage of Operating Expenses) which Tenant is paying
immediately prior to the commencement of the then applicable Option Term.
F. After exercise of the second Option above described, there shall be
no further rights on the part of Tenant to extend the term of the Lease.
41. LETTER OF CREDIT. Tenant shall provide to Landlord, no later than five (5)
business days after mutual execution of this Lease, a clean, unconditional,
irrevocable letter of credit from a lending institution reasonably acceptable to
Landlord in the form attached hereto as Exhibit "I" (the "Letter of Credit") as
a guaranty and security for the performance of Tenant's obligations under this
Lease on the following terms and conditions:
A. It is understood and agreed that the Letter of Credit, or a
renewal or substitute therefor approved by Landlord, shall be kept in effect
from the date of execution of this Lease through the date that is thirty-six
months after the Commencement Date (the "LC Termination Date") in the form
attached hereto as Exhibit "I" or in form otherwise approved by Landlord. The
initial Letter of Credit shall be in the amount of $225,000.00 and shall
increase to $750,000.00 on May 1, 2000 (the "LC Maximum"). Eighteen (18) months
following the Commencement Date, if the Letter of Credit has not been presented
for payment in accordance with this paragraph, the LC Maximum shall be decreased
by $375,000.00 (resulting in the Letter of
28
Credit in the amount of $375,000.00); if the Letter of Credit has not been
presented for payment in accordance with this paragraph thirty-six (36) months
following the Commencement Date, the LC Maximum shall be reduced by an
additional $375,000.00 (resulting in a Letter of Credit in the amount of $0.00).
The foregoing reductions shall not be applicable if and so long as Tenant is the
subject of a proceeding under any provision of federal or state law relating to
insolvency, bankruptcy, or reorganization at the time. If the Letter of Credit
would otherwise expire prior to the LC Termination Date, Tenant shall present
Landlord with an extension or renewal of the initial Letter of Credit, or a
substitute Letter of Credit in the same form as Exhibit "I" in the then required
amount no later than ten (10) business days prior to the expiration date of such
initial Letter of Credit, from a lending institution subject to Landlord's
reasonable approval; such extension, renewal or substitute Letter of Credit
shall be effective no later than the day prior to the expiration of the initial
Letter of Credit and shall continue in effect for not less than the period
ending with the LC Termination Date and shall be in the amount provided above.
Tenant agrees that in an event of default by Tenant, Landlord shall have a right
to present the Letter of Credit (or the renewal, extension or substitute) for
payment, with amounts received to be held and applied in accordance with
subparagraph B below. Any failure of Tenant to provide Landlord with an
extension, renewal or substitute Letter of Credit, as required hereunder, shall
be deemed an event of default under the Lease and Landlord shall have a right to
present the Letter of Credit in accordance with the foregoing provision. If the
Letter of Credit has not been presented for payment in accordance with this
Section on or before the LC Termination Date, Landlord shall return the Letter
of Credit to Tenant within ten (10) days after the LC Termination Date. Tenant
agrees that in the event of any transfer or mortgage, Landlord shall have the
right to transfer the Letter of Credit or substitute to the transferee or
mortgagee (and Tenant shall pay any costs or fees charged by the issuer to
permit such transfer), and if the Letter of Credit has been transferred, Tenant
shall look solely to such transferee for the return of the Letter of Credit (or
substitute). Landlord shall give written notice to Tenant of transfer of
Landlord's interest resulting in transfer of the Letter of Credit. Landlord
shall deliver the then-current effective Letter of Credit to Tenant upon receipt
of any conforming renewal or substitute Letter of Credit provided in accordance
with this Paragraph and cooperate with the issuing bank to effect the release of
such then-current effective Letter of Credit.
B. If an event of default occurs or this Lease is terminated,
Landlord may use, apply or retain all or any portion of the amounts received
under the Letter of Credit, if any, for the payment of any rent or other charge
in default or for the payment of any other sum to which Landlord may become
obligated by reason of Tenant's default, or to compensate Landlord for any loss
or damage which Landlord may suffer thereby . Sixty (60) days following the
later of the expiration of the Lease or Tenant's vacation of the Premises, any
amounts drawn upon the Letter of Credit that are not applied for payment of
amounts in accordance with the foregoing provision shall be returned to Tenant,
without payment of interest.
C. Landlord and Tenant agree that the annual fees charged by
the lending institution issuing the Letter of Credit (or any renewal, extension,
or substitute therefor) shall be paid by Tenant.
42. GOLF MEMBERSHIP. Landlord agrees to pay on behalf of Tenant a one-time
initiation fee for one (1) Corporate Plus golf membership ("Membership") at Deer
Creek Golf Club at Meadow Ranch (which total price shall not exceed $13,000)
effective on the Commencement Date of the Lease. To the extent such membership
is assignable, Tenant hereby covenants and agrees to assign to Landlord the
Membership upon an event of default, the expiration or other early termination
of this Lease. This provision shall expressly survive the termination of the
Lease.
43. RIGHT OF FIRST REFUSAL. Landlord hereby grants to Tenant during the initial
Term of this Lease a right of refusal (the "Right of Refusal") to lease any
space in the next speculative office building to be constructed by Landlord in
the Jefferson Corporate Center (the "Refusal Space") on the following basis:
A. Tenant shall have five (5) business days after being
notified by Landlord, in writing, of Landlord's desire to accept an offer to
lease all or any part of the Refusal Space to a third party (which notice is
hereinafter referred to as "Landlord's Notice") within which to notify Landlord,
in writing, if Tenant desires to lease such space for the balance of the Term of
this Lease. Landlord's Notice shall include the economic terms and conditions of
such contemplated lease transaction with the third party. Tenant must exercise
the Right of Refusal with respect to all of the Refusal Space offered to Tenant
under the specific proposal and may not elect to lease only a portion thereof.
B. If Tenant elects to lease any portion of the Refusal Space
offered within the later of the first twelve (12) months of the initial Term, or
within six (6) months after the Refusal Space becomes "Available" (as such term
is hereafter defined), then such Refusal Space shall be leased to Tenant for the
balance of the Term of this Lease (the initial Term as extended pursuant to this
Lease), with the Base Rent calculated at the same rate per rentable square foot
as set forth herein, with Tenant's Percentage of Operating Expenses equitably
adjusted in light of the relative square footage of the speculative building
occupied by Tenant, and with the tenant improvement allowance equitably adjusted
in light of the balance of the Term remaining, but otherwise such space shall
generally be on the terms and conditions of this Lease. If Tenant exercises it's
Right of Refusal after the later of the first twelve (12) months of the initial
Term, or six (6) months after the Refusal Space becomes Available, then the Base
Rent and other terms of such occupancy shall be as set forth in Landlord's
Notice, and Landlord and Tenant shall execute either an amendment to this Lease
or a separate lease for the speculative office building to memorialize the basic
terms set forth
29
in Landlord's Notice. For purposes of this Section 43, the term "Available"
shall mean the date on which Landlord actually breaks ground on construction of
the next speculative office building in the Jefferson Corporate Center.
C. If Tenant does not notify Landlord within such five (5)
business day period, it shall be conclusively presumed that Tenant does not
desire to exercise its Right of Refusal with respect to the Refusal Space
offered, and Landlord shall be free to lease such space to a third party. The
rights granted Tenant herein shall continue only so long as there is no uncured
event of default hereunder by Tenant. In the event of an assignment of the Lease
or a subletting or vacation of more than 25% of the Premises, Tenant's rights
under this Paragraph are null and void. Notwithstanding the foregoing, the right
granted in this section is personal to Tenant, is not assignable and may not be
exercised by any sublessee or assignee of Tenant, regardless of whether the
sublessee or assignee has been approved by Landlord.
44. RIGHT OF OFFER. Landlord hereby grants to Tenant during the Term of this
Lease (the initial Term as actually extended by Tenant pursuant to any extension
rights granted Tenant herein) a continuing right to offer to lease any space
that may become available for lease from time-to-time in the next speculative
office building contemplated for construction by Landlord in the Jefferson
Corporate Center (the "Offer Space"). Tenant shall have such right with respect
to the Offer Space on the following basis:
A. Landlord agrees to notify Tenant as soon as the Offer Space is
available for leasing by Tenant ("Landlord's Offer Notice"). Landlord
shall also forward to Tenant with Landlord's Offer Notice any marketing
or promotional materials, if any, Landlord has prepared with respect to
the Offer Space. Tenant shall have ten (10) days after receipt of any
such notice within which to notify Landlord if Tenant desires to lease
the Offer Space, or the portion so offered, for the balance of the Term
of Tenant's Lease hereunder (or such longer term as agreed to by
Landlord and Tenant). If Tenant does not so notify Landlord within the
ten (10) day period, it shall be conclusively deemed that Tenant does
not desire to lease such space, Landlord shall be free to lease the
Offer Space to anyone whom it desires (at a reasonable rate) and Tenant
shall have no further rights with respect to such space until such
space next becomes available for leasing to the public. Tenant's
ongoing Right of Offer hereunder is hereby made expressly prior to all
options and rights of extension, expansion, first offer and refusal in
favor of other tenants in the speculative building who occupy less than
5,000 rentable square feet of space in the speculative building.
Tenant's ongoing Right of Offer hereunder is hereby made subject and
subordinate to all options and rights of extension, expansion, first
offer and refusal in favor of other tenants in the speculative building
who occupy more than 5,000 rentable square feet of space in the
speculative building.
B. Landlord's Offer Notice shall set forth the following alternative
terms applicable to the Offer Space: (i) the lease term, rental rate,
operating expense ratio, parking allocations, tenant finish allowance,
and all leasing concessions that Landlord intends to offer to a third
party for lease of the Offer Space; and (ii) the rental rate, operating
expense ratio and tenant finish allowance that Landlord is willing to
make available to Tenant assuming that the term as to the Offer Space
shall be coterminous with the balance of the Term under the Lease.
Tenant's responsive notice, as referred to above, shall include
Tenant's election of either (i) or (ii), with all other terms of the
Lease being applicable to such Offer Space if Tenant exercises Tenant's
right hereunder.
C. The rights granted Tenant herein shall continue only so long as
there is no event of default hereunder by Tenant. In the event of an
assignment of the Lease or a subletting or vacation of more than 25% of
the Premises, Tenant's rights under this Paragraph are null and void.
Notwithstanding the foregoing, the rights granted in this section are
personal to Tenant, are not assignable and may not be exercised by any
sublessee or assignee of Tenant, regardless of whether the sublessee or
assignee has been approved by Landlord. If Tenant elects to add the
Offer Space to the Lease, Tenant will accept such space in its "as is"
condition without any remodeling work or fix-up work being performed by
Landlord, except as may be provided in Landlord's Offer Notice.
45. HEADQUARTERS PARCEL. Landlord and Tenant hereby acknowledge and agree that
Tenant may choose to locate its corporate headquarters within the Jefferson
Corporate Center and Tenant wants Landlord to designate an approximately 6 - 8
acre site (the "Headquarters Parcel") owned by Landlord within the Jefferson
Corporate Center for Landlord to construct Tenant's build-to-suit headquarters
building if Tenant elects to locate its headquarters in the Jefferson Corporate
Center in the future. The current designation of the Headquarters Parcel is
depicted as Site 5 on Exhibit "A-I" attached hereto. Landlord hereby grants
Tenant the following rights with respect to the Headquarters Parcel:
A. If during the initial Term of the Lease, Landlord intends
to develop the Headquarters Parcel (e.g. for a build to suit project for a third
party or as a speculative office building), then Landlord shall deliver written
notice to Tenant of such contemplated development of the Headquarters Parcel.
Tenant shall have thirty (30) days after receipt of such notice to negotiate an
agreement with Landlord (the form, terms and conditions of such agreement to be
mutually acceptable to both Landlord and Tenant) for Landlord to develop the
Headquarters Parcel for Tenant's use thereof.
30
B. If Landlord and Tenant have not executed an agreement (in
form and content satisfactory to each) within the thirty (30) day period, then
Tenant shall be deemed to have waived the rights set forth herein with respect
to the that specific Headquarters Parcel, but Landlord agrees to select another
mutually agreed upon site within the Jefferson Corporate Center for Tenant's
proposed headquarters and Tenant and Landlord will execute an amendment to the
Lease evidencing such alternative headquarters location. In the event Tenant
waives or is deemed to have waived its rights under this Paragraph or the
initial Term has expired, thereafter, at the request of Landlord, Tenant shall
deliver a certificate to Landlord acknowledging such waiver or, if applicable,
that such right is no longer effective.
C. The rights granted Tenant herein shall continue only so
long as there is no uncured event of default hereunder by Tenant. The rights
granted in this section are personal to Tenant, are not assignable and may not
be exercised by any sublessee or assignee of Tenant, regardless of whether the
sublessee or assignee has been approved by Landlord.
31
MASTER SITE PLAN FOR THE DEVELOPMENT
[To be supplied]
EXHIBIT "A-I"
32
SITE PLAN FOR THE PREMISES AND PARKING AREA
[To be supplied]
EXHIBIT "A-II"
33
FLOOR PLANS FOR THE BUILDING
[To be supplied]
EXHIBIT "A-III"
00
XXXXXXXX XXXXXX XXXX XXX XXXXXX XXXXXX FEET
The term "Rentable Square Feet" as used in the Lease will be deemed to
include the "Rentable Area" of the Premises determined in accordance with the
Method for Measuring Floor Area in Office Buildings, ANSI Z65.1-1996 as attached
hereto as Schedule 1 to this Exhibit B (the "BOMA Standard"). Upon substantial
completion of the Building, Landlord and Tenant's architect shall calculate the
Rentable Area in the Premises pursuant to the BOMA Standard set forth herein.
Upon field confirmation of the Rentable Area in the Premises as set forth in the
BOMA Standard, Landlord and Tenant will execute the Notice and Confirmation of
Lease Terms in the form attached to this Lease as Exhibit D setting forth, among
other items, the Rentable Area in the Building and Premises, the Monthly Base
Rent and the Tenant Improvement Allowance. Upon field confirmation of the
Rentable Area as set forth herein and execution of the Notice and Confirmation
of Lease Terms, the Rentable Area, Monthly Base Rent, and Tenant Improvement
Allowance figures set forth in the Notice and Confirmation of Lease Terms shall
be agreed numbers and shall remain fixed for the balance of the Term.
Notwithstanding the foregoing, Tenant's Percentage as shown in Paragraph 1 of
the Lease is agreed to be as set forth in Subparagraph 1(g) of the Lease.
EXHIBIT "B"
35
WORK LETTER AGREEMENT
This WORK LETTER AGREEMENT ("Work Letter Agreement") is entered into as of the
4th day of February 2000, by and between XXXX-LSI I, LLC ("Landlord"), and HIGH
SPEED ACCESS CORP. ("Tenant").
R E C I T A L S :
A. Concurrently with the execution of this Work Letter Agreement, Landlord and
Tenant have entered into a lease (the "Lease") covering certain premises (the
"Premises") more particularly described in Exhibit "A" attached to the Lease.
All terms not defined herein have the same meaning as set forth in the Lease. To
the extent applicable, the provisions of the Lease are incorporated herein by
this reference.
B. In order to induce Tenant to enter into the Lease and in consideration of the
mutual covenants hereinafter contained, Landlord and Tenant agree as follows:
NOW WHEREFORE, in consideration of the foregoing and other good and valuable
consideration, the parties hereby acknowledge and agree as follows:
1. LANDLORD'S WORK AND TENANT IMPROVEMENTS.
A. LANDLORD'S WORK. Landlord, at its sole cost and expense (i.e. not
deducted from the Tenant Improvement Allowance), shall construct the Building in
a good and workmanlike manner and substantially in accordance with plans (the
"Plans") dated June 30, 1999, and prepared by MOA Architects ("Landlord's
Work"). The Plans will not be modified without Tenant's reasonable prior written
consent, which consent may be given in the field during construction based on
discussions between the Contractor and Tenant's architect. Landlord shall
perform Landlord's Work in compliance with all applicable laws, rules and
regulations. In addition to the foregoing, Landlord's Work shall include the
following items:
o Landlord agrees to construct a concrete pad outside the Building in a location
reasonably acceptable to both Landlord and Tenant for Tenant's back up generator
together with two (2) four inch conduits from the concrete pad to the Building.
o Landlord agrees to provide cable (CATV) to the Building. All distribution
shall be at Tenant's sole cost and expense.
o Landlord will provide capacity for electric current to the Premises of at
least 5 xxxxx per square foot in the Premises (exclusive of lighting fixtures
and HVAC) for normal office and business machines which operate on standard 110
voltage.
B. TENANT IMPROVEMENTS. As used in the Lease and this Work Letter
Agreement, the term "Tenant Improvements" or "Tenant Improvement Work" means
those items of general tenant improvement construction shown on the Final Plans
(described in Paragraph 4 below), more particularly described in Paragraph 5
below.
2. WORK SCHEDULE. Attached hereto as Schedule 1 to this Exhibit C is the
schedule ("Work Schedule") which sets forth the timetable for the planning and
completion of the installation of the Tenant Improvements and the Commencement
Date of the Lease. The Work Schedule sets forth each of the various items of
work to be done or approval to be given by Landlord and Tenant in connection
with the completion of the Tenant Improvements. All plans and drawings required
by this Work Letter Agreement and all work performed pursuant thereto are to be
prepared and performed in accordance with the Work Schedule. Landlord may, from
time to time during construction of the Tenant Improvements, modify the Work
Schedule by written notice describing the change as Landlord reasonably deems
appropriate. If Tenant fails to approve the Work Schedule, as it may be modified
after discussions between Landlord and Tenant within five (5) business days
after the date the Work Schedule is first received by Tenant, the Work Schedule
shall be deemed to be approved by Tenant as submitted. Unless the Work Schedule
sets forth a different time schedule for Landlord to review and respond to any
item required to be submitted by Tenant to Landlord
EXHIBIT "C"
-----------
Page 1
36
hereunder, Landlord will respond to any Tenant submittal under this Work Letter
within five (5) business days after receipt of such item from Tenant.
3. CONSTRUCTION REPRESENTATIVES. Landlord hereby appoints the following
person(s) as Landlord's representative ("Landlord's Representative") to act for
Landlord in all matters covered by this Work Letter Agreement: Xxx Xxxxxxx with
Xxxx Xxxxxxx as a backup if Rob is not available.
Tenant hereby appoints the following person(s) as Tenant's representative
("Tenant's Representative") to act for Tenant in all matters covered by this
Work Letter Agreement: Xxxxxxx Xxxxxx.
All communications with respect to the matters covered by this Work Letter
Agreement are to made to Landlord's Representative or Tenant's Representative,
as the case may be, in writing in compliance with the notice provisions of the
Lease. Either party may change its representative under this Work Letter
Agreement at any time by written notice to the other party in compliance with
the notice provisions of the Lease.
4. TENANT IMPROVEMENT PLANS.
(a) PREPARATION OF SPACE PLANS. In accordance with the Work Schedule, Tenant
agrees to meet with its architect and/or space planner for the purpose of
promptly preparing preliminary space plans for the layout of Premises ("Space
Plans"). The Space Plans are to be sufficient to convey the architectural design
of the Premises and layout of the Tenant Improvements therein and are to be
submitted to Landlord in accordance with the Work Schedule for Landlord's
approval. If Landlord reasonably disapproves any aspect of the Space Plans,
Landlord will advise Tenant in writing of such disapproval and the reasons
therefor in accordance with the Work Schedule. Tenant will then submit to
Landlord for Landlord's approval, in accordance with the Work Schedule, a
redesign of the Space Plans incorporating the revisions reasonably required by
Landlord. Tenant agrees to use is best efforts to have the Space Plans finalized
and delivered to Landlord no later than February 10, 2000.
(b) PREPARATION OF FINAL PLANS. Based on the approved Space Plans, and in
accordance with the Work Schedule, Tenant's architect will prepare complete
architectural plans, drawings and specifications and complete engineered
mechanical, structural and electrical working drawings for all of the Tenant
Improvements for the Premises (collectively, the "Final Plans"). The Final Plans
will show: (a) the subdivision (including partitions and walls), layout,
lighting, finish and decoration work (including carpeting and other floor
coverings) for the Premises; (b) all internal and external communications and
utility facilities which will require conduiting or other improvements from the
base Building shell work and/or within common areas; and (c) all other
specifications for the Tenant Improvements. The Final Plans will be submitted to
Landlord no later than March 3, 2000, for its review, comment and/or approval.
If Landlord disapproves any aspect of the Final Plans based only on failure to
comply with applicable code requirements or any material inconsistency with the
Space Plans, Landlord's Work or the base building drawings, Landlord will advise
Tenant in writing of such disapproval and the reasons therefor within the time
frame set forth in the Work Schedule. In accordance with the Work Schedule,
Tenant will then cause its architect to redesign the Final Plans incorporating
the revisions requested by Landlord. Landlord and Tenant will follow this
process until Landlord signs the Final Plans to confirm its approval of the
Final Plans. Because Tenant's architect is preparing the Space Plan and Final
Plans, any delay in the preparation or approval of the Space Plan and/or Final
Plans (unless caused solely by Landlord's failure to timely respond as required
hereunder) shall be deemed Tenant Delay as set forth in Section 9 below.
(c) REQUIREMENTS OF TENANT'S FINAL PLANS. Tenant's Final Plans will include
locations and complete dimensions, and the Tenant Improvements, as shown on the
Final Plans, will: (i) be compatible with the Building shell and with the
design, construction and equipment of the Building; (ii) if not comprised of the
Building standards set forth in the written description thereof (the
"Standards"), then compatible with and of at least equal quality as the
Standards and approved by Landlord; (iii) comply with all applicable laws,
ordinances, rules and regulations of all governmental authorities having
jurisdiction, and all applicable insurance regulations; (iv) not require
Building service beyond the level normally provided to other office tenants and
will not overload the Building floors; and (v) be of a nature and quality
consistent with the overall objectives of Landlord for the Building, as
determined by Landlord acting reasonably, but which decision shall be made in
its sole and absolute discretion.
(d) SUBMITTAL OF FINAL PLANS. Once approved by Landlord and Tenant, Tenant's
architect will submit the Final Plans to the appropriate governmental agencies
for plan checking and the issuance of a building permit. Tenant's architect,
with
EXHIBIT "C"
-----------
Page 2
37
Landlord's reasonable approval, will make any changes to the Final Plans which
are requested by the applicable governmental authorities to obtain the building
permit. After approval of the Final Plans no further changes may be made without
the reasonable prior written approval of both Landlord and Tenant, and then only
after agreement by Tenant to pay any excess costs resulting from the design
and/or construction of such changes. Tenant hereby acknowledges that any such
changes will be subject to the terms of Paragraph 10 below.
(e) CHANGES TO SHELL OF BUILDING. If the Final Plans or any amendment thereof or
supplement thereto shall require changes in the Building shell (except for those
items of Landlord's Work set forth in Paragraph 1A above) , the increased cost
of the Building shell work caused by such changes will be paid for by Tenant or
charged against the "Allowance" described in Paragraph 5 below, and the
corresponding time delay will constitute Tenant Delay as defined in Section 9
below.
(f) WORK COST ESTIMATE AND STATEMENT. Prior to the commencement of construction
of any of the Tenant Improvements shown on the Final Plans, Landlord will submit
to Tenant a written estimate of the cost to complete the Tenant Improvement
Work, which written estimate will be based on the Final Plans taking into
account any modifications which may be required to reflect changes in the Final
Plans required by the City or County in which the Premises are located (the
"Work Cost Estimate"). Landlord will use reasonable efforts to ensure it
receives competitive bids for the Tenant Improvement Work. Tenant will either
approve the Work Cost Estimate or disapprove specific items and submit to
Landlord revisions to the Final Plans to reflect deletions of and/or
substitutions for such disapproved items. Submission and approval of the Work
Cost Estimate will proceed in accordance with the Work Schedule. Upon Tenant's
approval of the Work Cost Estimate (such approved Work Cost Estimate to be
hereinafter known as the "Work Cost Statement"), Landlord will have the right to
purchase materials and to commence the construction of the items included in the
Work Cost Statement pursuant to Paragraph 6 hereof. If the total costs reflected
in the Work Cost Statement exceed the Allowance described in Paragraph 5 below,
Tenant agrees to pay such excess, as additional rent, within five (5) business
days after Tenant's approval of the Work Cost Estimate. Throughout the course of
construction, any differences between the estimated Work Cost in the Work Cost
Statement and the actual Work Cost will be determined by Landlord and
appropriate adjustments and payments by Landlord or Tenant, as the case may be,
will be made within five (5) business days thereafter.
5. PAYMENT FOR THE TENANT IMPROVEMENTS.
(a) ALLOWANCE. Landlord hereby grants to Tenant a tenant improvement allowance
of $25.00 per Rentable Square Foot of the Premises (the "Allowance"). The
Allowance is to be used only for:
(i) Payment of the cost of preparing the Space Plans and the Final Plans,
including mechanical, electrical, plumbing and structural drawings and of all
other aspects necessary to complete the Final Plans, which amount will not
exceed $1.50 per rentable square foot in the Premises. The Allowance will not be
used for the payment of extraordinary design work not consistent with the scope
of the Standards (i.e., above-standard design work) or for payments to any other
consultants, designers or architects other than Landlord's architect and/or
Tenant's architect.
(ii) The payment of plan check, permit and license fees relating to construction
of the Tenant Improvements.
(iii) To the extent not provided by Landlord as a part of Landlord's Work, as
defined in Section 1 above, construction of the Tenant Improvements, including,
without limitation, the following:
(aa) Installation within the Premises of all partitioning, doors, floor
coverings, ceilings, wall coverings and painting, millwork and similar
items;
(bb) All electrical wiring, lighting fixtures, outlets and switches,
and other electrical work necessary for the Premises;
(cc) The furnishing and installation of all duct work, terminal boxes,
diffusers and accessories necessary for the heating, ventilation and
air conditioning systems within the Premises, including the cost of
meter and key control for after-hour air conditioning;
EXHIBIT "C"
-----------
Page 3
38
(dd) Any additional improvements to the Premises required for Tenant's
use of the Premises including, but not limited to, odor control,
special heating, ventilation and air conditioning, noise or vibration
control or other special systems or improvements;
(ee) All fire and life safety control systems such as fire walls,
sprinklers, halon, fire alarms, including piping, wiring and
accessories, necessary for the Premises;
(ff) All plumbing, fixtures, pipes and accessories necessary for the
Premises;
(gg) Testing and inspection costs; and
(hh) Fees for Landlord's tenant improvement coordinator in the amount
of three percent (3%) of the actual Work Cost, and fees for the
contractor including, but not limited to, fees and costs attributable
to general conditions.
(iv) All other costs to be expended by Landlord in the construction of the
Tenant Improvements.
(b) EXCESS COSTS. The cost of each item referenced in Paragraph 5(a) above
(except for Landlord's Work) shall be charged against the Allowance. If the Work
Cost exceeds the Allowance, Tenant agrees to pay to Landlord such excess
including fees for the contractor and Landlord's standard three percent (3%) fee
for the tenant improvement coordinator associated with the supervision of such
excess work prior to the commencement of construction within five (5) business
days after invoice therefor (less any sums previously paid by Tenant for such
excess pursuant to the Work Cost Estimate). In no event will the Allowance be
used to pay for Tenant's furniture, artifacts, equipment, telephone systems or
any other item of personal property which is not affixed to the Premises, or for
any non-standard tenant improvements, which includes, but is not limited to,
raised floor computer rooms, labs, rooms with above-standard HVAC distribution,
and any other improvement that cannot be reused by 90% of the tenants in the
market, as reasonably determined by Landlord (hereafter "Special Items"). If
Tenant does not utilize all of the Allowance due to the inclusion of numerous
Special Items as part of the Tenant Improvements, then Landlord will meet with
Tenant, in a good faith manner, to discuss the possibility of receiving a credit
against the unused portion of the Allowance to be applied against the cost of
the Special Items.
(c) CHANGES. If, after the Final Plans have been prepared and the Work Cost
Statement has been established, Tenant requires any changes or substitutions to
the Final Plans, any additional costs related thereto including fees for the
contractor and Landlord's standard three percent (3%) fee for the tenant
improvement coordinator associated with the supervision of such changes or
substitutions are to be paid by Tenant to Landlord prior to the commencement of
construction of the Tenant Improvements. Any changes to the Final Plans will be
approved by Landlord and Tenant in the manner set forth in Paragraph 4 above and
will, if necessary, require the Work Cost Statement to be revised and agreed
upon between Landlord and Tenant in the manner set forth in Subparagraph 4(f)
above. Landlord will have the right to decline Tenant's request for a change to
the Final Plans if such changes are inconsistent with the provisions of
Paragraph 4 above, or if the change would unreasonably delay construction of the
Tenant Improvements and the Commencement Date of the Lease.
(d) GOVERNMENTAL COST INCREASES. If increases in the cost of the Tenant
Improvements as set forth in the Work Cost Statement are due to requirements of
any governmental agency, Tenant agrees to pay Landlord the amount of such
increase including fees for the contractor and Landlord's standard five percent
(5%) fee for the tenant improvement coordinator associated with the supervision
of such additional work within five (5) days of Landlord's written notice;
provided, however, that Landlord will first apply toward any such increase any
remaining balance of the Allowance.
(e) UNUSED ALLOWANCE AMOUNTS. Any unused portion of the Allowance upon
completion of the Tenant Improvements will not be refunded to Tenant or be
available to Tenant as a credit against any obligations of Tenant under the
Lease unless Tenant has paid for excess costs as described in Subparagraphs
5(b), 5(c) or 5(d), in which case the unused Allowance may be applied toward
such excess cost amounts and paid to Tenant.
6. CONSTRUCTION OF TENANT IMPROVEMENTS. Until Landlord approves the Final Plans
and Tenant approves Work Cost Statement pursuant to the process set forth above,
Landlord will be under no obligation to cause the construction of any of the
Tenant Improvements. Following Tenant's approval of the Work Cost Statement
described in
EXHIBIT "C"
-----------
Page 4
39
Subparagraph 4(f) above and upon Tenant's payment of the total amount by which
such Work Cost Statement exceeds the Allowance, if any, Landlord's contractor
will commence and diligently proceed with the construction of the Tenant
Improvements, subject to Tenant Delays (as described above and in Paragraph 9
below) and Force Majeure Delays (as described in Paragraph 10 below).
7. FREIGHT/CONSTRUCTION ELEVATOR. Landlord will, if appropriate and necessary,
make the freight/construction elevator reasonably available to Tenant in
connection with initial decorating, furnishing and moving into the Premises.
Tenant agrees to pay for any after-hours staffing of the freight/construction
elevator, if needed.
8. COMMENCEMENT DATE AND SUBSTANTIAL COMPLETION.
(a) COMMENCEMENT DATE. The Term of the Lease will commence on the date (the
"Commencement Date") which is the earlier of: (i) the date Tenant moves into the
Premises to commence operation of its business in all or any portion of the
Premises (excluding occupancy by Tenant to fixture the Premises); or (ii) the
date the Tenant Improvements have been "substantially completed" (as defined
below); provided, however, that if substantial completion of the Tenant
Improvements is delayed as a result of any Tenant Delays described in Paragraph
9 below, then the Commencement Date as would otherwise have been established
pursuant to this Subparagraph 8(a)(ii) will be accelerated by the number of days
of such Tenant Delays. Notwithstanding any earlier Commencement Date, in no
event shall Tenant be obligated to pay Rent prior to August 1, 2000; provided
Tenant shall not be able to occupy the Premises (except to fixture the Premises)
for the conduct of Tenant's business prior to August 1, 2000.
(b) SUBSTANTIAL COMPLETION; PUNCH-LIST. For purposes of Subparagraph 8(a)(ii)
above, the Tenant Improvements will be deemed to be "substantially completed"
when Landlord's contractor certifies in writing to Landlord and Tenant that
Landlord: (a) is able to provide Tenant with reasonable access to the Premises;
(b) has substantially performed all of the Tenant Improvement Work required to
be performed by Landlord under this Work Letter Agreement, other than decoration
and minor "punch-list" type items and adjustments which do not materially
interfere with Tenant's access to or use of the Premises; and (c) has obtained a
temporary certificate of occupancy or other required equivalent approval from
the local governmental authority permitting occupancy of the Premises. Within
ten (10) days after receipt of such certificate from Landlord's contractor,
Tenant will conduct a walk-through inspection of the Premises with Landlord and
provide to Landlord a written punch-list specifying those decoration and other
punch-list items which require completion, which items Landlord will thereafter
diligently complete.
(c) DELIVERY OF POSSESSION. Landlord agrees to deliver possession of the
Premises to Tenant when the Tenant Improvements have been substantially
completed in accordance with Subparagraph (b) above. The parties estimate that
Landlord will deliver possession of the Premises to Tenant and the Term of this
Lease will commence on or before the estimated commencement date set forth in
the Work Schedule delivered to Tenant pursuant to Paragraph 2 above (the
"Projected Commencement Date"). Landlord agrees to use its commercially
reasonable efforts to cause the Premises to be substantially completed on or
before the Projected Commencement Date. Tenant agrees that if Landlord is unable
to deliver possession of the Premises to Tenant on or prior to the Projected
Commencement Date, the Lease will not be void or voidable, nor will Landlord be
liable to Tenant for any loss or damage resulting therefrom, but if such late
delivery is due to Landlord's fault or due to any Force Majeure Delay(s), then,
as Tenant's sole remedy, the Commencement Date and the Expiration Date of the
Term will be extended one (1) day for each day Landlord is delayed in delivering
possession of the Premises to Tenant. In the event that Landlord has not
delivered possession of the Premises to Tenant on or before December 31, 2000,
then Tenant shall have the right to terminate this Lease by delivering written
notice of termination within five (5) business days thereafter. If Tenant fails
to timely deliver the termination notice, then Tenant shall be deemed to have
waived its termination right granted herein. The December 31, 2000 date shall be
extended one day for each corresponding day of Force Majeure Delay and Tenant
Delay.
9. TENANT DELAYS. For purposes of this Work Letter Agreement, "Tenant Delays"
means any delay in the completion of the Tenant Improvements resulting from any
or all of the following: (a) Tenant's failure to timely perform any of its
obligations pursuant to this Work Letter Agreement, including any failure to
complete, on or before the due date therefor, any action item which is Tenant's
responsibility pursuant to the Work Schedule delivered by Landlord to Tenant
pursuant to this Work Letter Agreement; (b) Tenant's changes to Space Plans or
Final Plans after Landlord's approval thereof; (c) Tenant's request for
materials, finishes, or installations which are not reasonably available or
which are incompatible with the Standards; (d) any delay of Tenant in making
payment to Landlord for Tenant's share of the Work Cost; or (e) any other act or
failure to act
EXHIBIT "C"
-----------
Page 5
40
by Tenant, Tenant's employees, agents, architects, independent contractors,
consultants and/or any other person performing or required to perform services
on behalf of Tenant. Landlord will give Tenant written notice at such time(s)
that Landlord determines there is a Tenant Delay.
10. FORCE MAJEURE DELAYS. For purposes of this Work Letter, "Force Majeure
Delays" means any actual delay in the construction of the Tenant Improvements,
which is beyond the reasonable control of Landlord or Tenant, as the case may
be, as described in Paragraph 33 of the Lease.
IN WITNESS WHEREOF, the undersigned Landlord and Tenant have caused this Work
Letter Agreement to be duly executed by their duly authorized representatives as
of the date of the Lease.
TENANT: LANDLORD:
HIGH SPEED ACCESS CORP., XXXX-LSI I, LLC, a Delaware limited liability company
a Delaware corporation
By: KDC-OC, LLC, a Delaware limited liability
By: company, its Co-Manager
---------------------------
By: Xxxx Development Company, LLC, a Delaware
Print Name: limited liability company, its Sole Member
---------------------
By:
Print Title: ----------------
--------------------
Name:
--------------
By:
----------------------------- Title:
------------
Print Name:
---------------------
Print Title:
-------------------- By: Land Securities Investors, Ltd., a Colorado limited
partnership, its Co-Manager
By: Sunset Management Services, Inc., a Colorado
corporation, its General Partner
By:
----------------
Name:
--------------
Title:
------------
EXHIBIT "C"
-----------
Page 6
41
EXHIBIT "C"
-----------
Page 7
42
1
WORK SCHEDULE
[Attached]
SCHEDULE "1"
to
EXHIBIT "C"
43
1
NOTICE AND CONFIRMATION OF LEASE TERMS
To:
Date:
Re: Lease dated _________________, 19__ (the "Lease"), between XXXX-LSI I, LLC,
a Delaware limited liability company "Landlord", and "HIGH SPEED ACCESS
CORP. Tenant, concerning those specific premises more particularly
described in the Lease (the "Premises").
To Whom It May Concern:
In accordance with the subject Lease, we wish to advise and/or confirm as
follows:
1. That the Premises have been accepted by the Tenant as being substantially
complete in accordance with the subject Lease and that there is no known or
readily identifiable deficiency in construction except as may be indicated on
the "Punch-List" prepared by Landlord and Tenant, a copy of which is attached
hereto.
2. That the Tenant has possession of the subject Premises and acknowledges that
under the provisions of the Lease the Commencement Date is
_____________________, and the Term of the Lease will expire on _______________.
3. That in accordance with the Lease, rent commenced to accrue on ___________.
4. If the Commencement Date of the Lease is other than the first day of the
month, the first billing will contain a pro rata adjustment. Each billing
thereafter will be for the full amount of the monthly installment as provided
for in the Lease.
5. Rent is due and payable in advance on the first day of each and every month
during the Term of the Lease. Your rent checks should be made payable to
________________ at the following address: ___________________________.
6. The number of Rentable Square Feet within the Premises is _________ square
feet as determined by Landlord and Tenant's architect in accordance with the
terms of the Lease.
7. The number of Rentable Square Feet within the Building is ___________ square
feet as determined by Landlord and Tenant's architect in accordance with the
terms of the Lease.
8. As a result of the confirmation of the Rentable Area in the Building and the
Premises as set forth in Exhibit B to the Lease, the Monthly Base Rent pursuant
to Section 1(l) of the Lease is __________________________ and the Tenant
Improvement Allowance is __________________________ which Tenant Improvement
Allowance has been paid in full by Landlord.
EXHIBIT "D"
44
2
LANDLORD:
XXXX-LSI I, LLC, a Delaware limited liability company
By: KDC-OC, LLC, a Delaware limited liability
company, its Co-Manager
By: Xxxx Development Company, LLC, a Delaware
limited liability company, its Sole Member
By:
----------------
Name:
--------------
Title:
------------
By: Land Securities Investors, Ltd., a Colorado limited
partnership, its Co-Manager
By: Sunset Management Services, Inc., a Colorado
corporation, its General Partner
By:
----------------
Name:
--------------
Title:
------------
SAMPLE ONLY
[NOT FOR EXECUTION]
EXHIBIT "D"
45
1
DEFINITION OF OPERATING EXPENSES
1. ITEMS INCLUDED IN OPERATING EXPENSES. The term "Operating Expenses" as used
in the Lease to which this Exhibit "E" is attached means: all costs and expenses
of operation and maintenance of the Building the Building Common Areas and a pro
rata share of the Development Common Areas (as such terms are defined in the
Lease), as determined by standard accounting practices, calculated assuming the
Building is ninety-five percent (95%) occupied, including the following costs by
way of illustration but not limitation, but excluding those items specifically
set forth in Paragraph 3 below:
(a) Real Property Taxes and Assessments (as defined in Paragraph 2 below) and
any taxes or assessments imposed in lieu thereof;
(b) any and all assessments imposed with respect to the Building pursuant to any
covenants, conditions and restrictions affecting the Development, the Common
Areas or the Building;
(c) water and sewer charges and the costs of electricity, heating, ventilating,
air conditioning and other utilities;
(d) utilities surcharges and any other costs, levies or assessments resulting
from statutes or regulations promulgated by any government or quasi-government
authority in connection with the use, occupancy or alteration of the Building or
the Premises or the parking facilities serving the Building or the Premises;
(e) costs of insurance obtained by Landlord, which Landlord will bid out at
least once every three years in an attempt to keep premiums competitive;
(f) waste disposal and janitorial services;
(g) labor;
(h) costs incurred in the management of the Building, including, without
limitation: (i) supplies, (ii) wages and salaries (and payroll taxes and similar
governmental charges related thereto) of employees used in the management,
operation and maintenance of the Building, (iii) Building management office
rental, supplies, equipment and related operating expenses, and (iv) a
management/administrative fee determined as a percentage of the annual gross
revenues of the Building exclusive of the proceeds of financing or a sale of the
Building and an administrative fee for the management of the Development Common
Area determined as a percentage of Development Common Area Operating Expenses;
(i) supplies, materials, equipment and tools including rental of personal
property used for maintenance;
(j) repair and maintenance of the elevators and the structural portions of the
Building, including the plumbing, heating, ventilating, air-conditioning and
electrical systems installed or furnished by Landlord;
(k) maintenance, costs and upkeep of all parking and Development Common Areas;
(l) depreciation on a straight line basis and rental of personal property used
in maintenance;
(m) amortization on a straight line basis over the useful life [together with
interest at the Interest Rate on the unamortized balance] of all capitalized
expenditures which are: (i) reasonably intended to produce a reduction in
operating charges or energy consumption; or (ii) required under any governmental
law or regulation that was not applicable to the Building at the time it was
originally constructed; or (iii) for replacement of any Building equipment
needed to operate the Building at the same quality levels as prior to the
replacement which resulted, in Landlord's sole but reasonable opinion, from
Tenant's intensive use of the Premises;
(n) costs and expenses of gardening and landscaping;
EXHIBIT "E"
-----------
Page 1
46
2
(o) maintenance of signs (other than signs of tenants of the Building);
(p) personal property taxes levied on or attributable to personal property used
in connection with the Building or the Common Areas;
(q) reasonable accounting, audit, verification, legal and other consulting fees;
and
(r) costs and expenses of repairs, resurfacing, repairing, maintenance,
painting, lighting, cleaning, refuse removal, security and similar items,
including appropriate reserves.
When calculating Operating Expenses for purposes of establishing Tenant's
Operating Expense Allowance, Operating Expenses shall not include Real Property
Taxes and Assessments attributable to special assessments, charges, costs, or
fees or due to modifications or changes in governmental laws or regulations
including, but not limited to, the institution of a split tax roll, and shall
exclude market-wide labor-rate increases due to extraordinary circumstances
including, but not limited to, boycotts and strikes and utility increases due to
extraordinary circumstances including, but not limited to, conservation
surcharges, boycotts, embargoes or other shortages.
2. REAL PROPERTY TAXES AND ASSESSMENTS. The term "Real Property Taxes and
Assessments", as used in this Exhibit "E", means: any form of assessment,
license fee, license tax, business license fee, commercial rental tax, levy,
charge, improvement bond, tax or similar imposition imposed by any authority
having the direct power to tax, including any city, county, state or federal
government, or any school, agricultural, lighting, drainage or other improvement
or special assessment district thereof, as against any legal or equitable
interest of Landlord in the Premises, Building, Common Areas or the Development
(as such terms are defined in the Lease), adjusted to reflect an assumption that
the Building is fully assessed for real property tax purposes as a completed
building ready for occupancy, including the following by way of illustration but
not limitation:
(a) any tax on Landlord's "right" to rent or "right" to other income from the
Premises or as against Landlord's business of leasing the Premises;
(b) any assessment, tax, fee, levy or charge in substitution, partially or
totally, of any assessment, tax, fee, levy or charge previously included within
the definition of real property tax, it being acknowledged by Tenant and
Landlord that assessments, taxes, fees, levies and charges may be imposed by
governmental agencies for such services as fire protection, street, sidewalk and
road maintenance, refuse removal and for other governmental services formerly
provided without charge to property owners or occupants. It is the intention of
Tenant and Landlord that all such new and increased assessments, taxes, fees,
levies and charges be included within the definition of "real property taxes"
for the purposes of this Lease;
(c) any assessment, tax, fee, levy or charge allocable to or measured by the
area of the Premises or other premises in the Building or the rent payable by
Tenant hereunder or other tenants of the Building, including, without
limitation, any gross receipts tax or excise tax levied by state, city or
federal government, or any political subdivision thereof, with respect to the
receipt of such rent, or upon or with respect to the possession, leasing,
operation, management, maintenance, alteration, repair, use or occupancy by
Tenant of the Premises, or any portion thereof but not on Landlord's other
operations;
(d) any assessment, tax, fee, levy or charge upon this transaction or any
document to which Tenant is a party, creating or transferring an interest or an
estate in the Premises; and/or
(e) any assessment, tax, fee, levy or charge by any governmental agency related
to any transportation plan, fund or system (including assessment districts)
instituted within the geographic area of which the Building is a part.
Notwithstanding the foregoing, if at any time after the Commencement Date, the
amount of Real Property Taxes and Assessments decreases, then for purposes of
all subsequent Lease Years, including the Lease Year in which such decrease in
Real Property Taxes and Assessments occurs, Tenant's Operating Expense Allowance
shall be decreased by an amount equal to such decrease in Real Property Taxes
and Assessments.
EXHIBIT "E"
-----------
Page 2
47
3
3. ITEMS EXCLUDED FROM OPERATING EXPENSES. Notwithstanding the provisions of
Paragraphs 1 and 2 above to the contrary, "Operating Expenses" will not include:
(a) Landlord's federal, state or local income, franchise, inheritance or estate
taxes;
(b) any ground lease rental;
(c) costs incurred by Landlord for the repair of damage to the Building to the
extent that Landlord is reimbursed by insurance or condemnation proceeds or by
tenants, warrantors or other third persons;
(d) depreciation, amortization and interest payments, except as specifically
provided herein, and except on materials, tools, supplies and vendor-type
equipment purchased by Landlord to enable Landlord to supply services Landlord
might otherwise contract for with a third party, where such depreciation,
amortization and interest payments would otherwise have been included in the
charge for such third party's services, all as determined in accordance with
standard accounting practices;
(e) brokerage commissions, finders' fees, attorneys' fees, space planning costs
and other costs incurred by Landlord in leasing or attempting to lease space in
the Building;
(f) costs of a capital nature, including, without limitation, capital
improvements, capital replacements, capital repairs, capital equipment and
capital tools, all as determined in accordance with standard accounting
practices; provided, however, the capital expenditures set forth in Subparagraph
1(m) above will in any event be included in the definition of Operating
Expenses;
(g) interest, principal, points and fees on debt or amortization on any
mortgage, deed of trust or other debt encumbering the Building or the
Development;
(h) costs, including permit, license and inspection costs, incurred with respect
to the installation of tenant improvements for tenants in the Building
(including the original Tenant Improvements for the Premises), or incurred in
renovating or otherwise improving, decorating, painting or redecorating space
for tenants or other occupants of the Building, including space planning and
interior design costs and fees;
(i) attorneys' fees and other costs and expenses incurred in connection with
negotiations or disputes with present or prospective tenants or other occupants
of the Building; provided, however, that Operating Expenses will include those
attorneys' fees and other costs and expenses incurred in connection with
negotiations, disputes or claims relating to items of Operating Expenses,
enforcement of rules and regulations of the Building, and such other matters
relating to the maintenance of standards required of Landlord under the Lease;
(j) except for the administrative/management fees described in Subparagraph 1(h)
above, costs of Landlord's general corporate overhead;
(k) all items and services for which Tenant or any other tenant in the Building
is to reimburse Landlord (other than through operating expense pass-through
provisions);
(l) electric power costs for which any tenant directly contracts with the local
public service company;
(m) costs arising from Landlord's charitable or political contributions;
(n) transfer tax in connection with a sale of the Building; and
(o) costs arising from repair of defects in the original construction of the
Building.
EXHIBIT "E"
-----------
Page 3
48
1
STANDARDS FOR UTILITIES AND SERVICES
The following standards for utilities and services are in effect. Landlord
reserves the right to adopt nondiscriminatory modifications and additions
hereto.
Subject to the terms and conditions of the Lease and provided Tenant remains in
occupancy of the Premises, Landlord will provide or make available the following
utilities and services:
1. Provide non-attended automatic elevator facilities Monday through Friday,
except holidays, from 8 a.m. to 6 p.m., and have one elevator available for
Tenant's use at all other times.
2. On Monday through Friday, except holidays, from 8 a.m. to 6 p.m. and on
Saturday from 8 a.m. to 12 Noon (and other times for a reasonable additional
charge to be fixed by Landlord), ventilate the Premises and furnish air
conditioning or heating on such days and hours, when in the reasonable judgment
of Landlord it may be required for the comfortable occupancy of the Premises.
The air conditioning system achieves maximum cooling when the window coverings
are extended to the full length of the window opening and adjusted to a 45o
angle upwards. Tenant acknowledges and agrees that Landlord will not be
responsible for room temperatures if Tenant does not (i) keep all window
coverings in the Premises extended to the full length of the window opening and
adjusted to a 45o angle upwards whenever the system is in operation; and (ii)
abide by all reasonable regulations and requirements which Landlord may
prescribe for the proper function and protection of said air conditioning
system. Tenant agrees not to connect any apparatus, device, conduit or pipe to
the chilled and hot water air conditioning supply lines of the Building without
Landlord's reasonable prior written approval. Tenant further agrees that neither
Tenant nor its servants, employees, agents, visitors, licensees or contractors
shall at any time enter the mechanical installations or facilities of the
Building or the Development or adjust, tamper with, touch or otherwise in any
manner affect said installations or facilities. The cost of maintenance and
service calls to adjust and regulate the air conditioning system will be charged
to Tenant if the need for maintenance work results from either Tenant's
adjustment of room thermostats or Tenant's failure to comply with its
obligations under this Exhibit, including keeping window coverings extended to
the full length of the window opening and adjusted to a 45o angle upwards. Such
work will be charged at hourly rates equal to then-current journeyman's wages
for air conditioning mechanics. Landlord acknowledges that the HVAC system for
the Building will allow for separate zone control based on separate 1,000 square
foot zones.
3. Landlord will make available to the Premises, 24 hours per day, seven days a
week, electric current as required by the Building standard office lighting and
fractional horsepower office business machines including copiers, personal
computers and word processing equipment in an amount not to exceed five (5)
xxxxx per square foot per normal business day (exclusive of the lighting
fixtures and HVAC unit). Tenant agrees, should its electrical installation or
electrical consumption be in excess of the aforesaid quantity or extend beyond
normal business hours, to reimburse Landlord monthly for the measured
consumption at the average cost per kilowatt hour charged to the Building during
the period. If a separate meter is not installed at Tenant's cost, such excess
cost will be established by an estimate agreed upon by Landlord and Tenant, and
if the parties fail to agree, such cost will be established by an independent
licensed engineer selected in Landlord's reasonable discretion, whose fee shall
be shared equally by Landlord and Tenant. Tenant agrees not to use any apparatus
or device in, upon or about the Premises (other than standard office business
machines, personal computers and word processing equipment) which may in any way
increase the amount of such services usually furnished or supplied to said
Premises, and Tenant further agrees not to connect any apparatus or device with
wires, conduits or pipes, or other means by which such services are supplied,
for the purpose of using additional or unusual amounts of such services without
the written consent of Landlord. Should Tenant use the same to excess, the
refusal on the part of Tenant to pay upon demand of Landlord the amount
established by Landlord for such excess charge will constitute a breach of the
obligation to pay rent under this Lease and will entitle Landlord to the rights
therein granted for such breach. Tenant's use of electric current will never
exceed the capacity of the feeders to the Building, or the risers or wiring
installation and Tenants will not install or use or permit the installation or
use of any computer or electronic data processing equipment in the Premises
(except standard office business machines, personal computers and word
processing equipment) without the prior written consent of Landlord.
4. Water will be available in public areas for drinking and lavatory purposes
only, but if Tenant requires, uses or consumes water for any purpose in addition
to ordinary drinking and lavatory purposes, of which fact Tenant constitutes
Landlord to be the sole judge, Landlord may install a water meter and thereby
measure Tenant's water consumption for all purposes. Tenant agrees to pay
Landlord for the cost of the meter and the cost of the installation thereof and
throughout the duration of Tenant's occupancy Tenant will keep said meter and
installation equipment in good working order and repair at Tenant's own cost and
expense, in default of which Landlord may cause such meter and equipment to be
replaced or repaired and collect the cost thereof
EXHIBIT "F"
49
2
from Tenant. Tenant agrees to pay for water consumed, as shown on such meter, as
and when bills are rendered, and on default in making such payment, Landlord may
pay such charges and collect the same from Tenant. Any such costs or expenses
incurred, or payments made by Landlord for any of the reasons or purposes
hereinabove stated will be deemed to be additional rent payable by Tenant and
collectible by Landlord as such.
5. Landlord will provide janitor service to the Premises, provided the same are
used exclusively as offices, and are kept reasonably in order by Tenant, and
unless otherwise agreed to by Landlord and Tenant no one other than persons
approved by Landlord shall be permitted to enter the Premises for such purposes.
If the Premises are not used exclusively as offices, they will be kept clean and
in order by Tenant, at Tenant's expense, and to the satisfaction of Landlord,
and by persons approved by Landlord. Tenant agrees to pay to Landlord the cost
of removal of any of Tenant's refuse and rubbish to the extent that the same
exceeds the refuse and rubbish usually attendant upon the use of the Premises as
offices.
6. Landlord reserves the right to stop service of the elevator, plumbing,
ventilation, air conditioning and electrical systems, when necessary, by reason
of accident or emergency or for repairs, alterations or improvements, when in
the judgment of Landlord such actions are desirable or necessary to be made,
until said repairs, alterations or improvements shall have been completed, and
Landlord will have no responsibility or liability for failure to supply elevator
facilities, plumbing, ventilating, air conditioning or electric service, when
prevented from so doing by strike or accident or by any cause beyond Landlord's
reasonable control, or by laws, rules, orders, ordinances, directions,
regulations or by reason of the requirements of any federal, state, county or
municipal authority or failure of gas, oil or other suitable fuel supply or
inability by exercise of reasonable diligence to obtain gas, oil or other
suitable fuel supply. It is expressly understood and agreed that any covenants
on Landlord's part to furnish any services pursuant to any of the terms,
covenants, conditions, provisions or agreements of this Lease, or to perform any
act or thing for the benefit of Tenant, will not be deemed breached if Landlord
is unable to furnish or perform the same by virtue of a strike or labor trouble
or any other cause whatsoever beyond Landlord's control.
EXHIBIT "F"
50
1
ESTOPPEL CERTIFICATE
The undersigned, ________________________________________________ ("Tenant"),
hereby certifies to ______________________________________________ , as follows:
1. Attached hereto is a true, correct and complete copy of that certain lease
dated December ____, 1999, between XXXX-LSI I, LLC, a Delaware limited liability
company ("Landlord") and HIGH SPEED ACCESS CORP., a __________ ("Tenant") (the
"Lease"), regarding the premises located at ____________________________________
(the "Premises"). The Lease is now in full force and effect and has not been
amended, modified or supplemented, except as set forth in Paragraph 4 below.
2. The Term of the Lease commenced on ________________________________________,
19____ .
3. The Term of the Lease will expire on ___________________________________ ,
19_______.
4. The Lease has: (Initial one)
( ___________________________________________________________ ) not been
amended, modified, supplemented, extended, renewed or assigned.
( ___________________________________________________________ ) not been
amended, modified, supplemented, extended, renewed or assigned by the following
described terms or agreements, copies of which are attached hereto:
______________________________________________________________________________
______________________________________________________________________________
5. Tenant has accepted and is now in possession of the Premises.
6. Tenant and Landlord acknowledge that Landlord's interest in the Lease will be
assigned to and that no modification, adjustment, revision or cancellation of
the Lease or amendments thereto shall be effective unless written consent of
__________________________________________________ is obtained, and that until
further notice, payments under the Lease may continue as heretofore.
7. The amount of Monthly Base Rent is $ ________________________________ .
8. The amount of Security Deposit (if any) is $ __________________________ . No
other security deposits have been made except as follows:
______________________________________________________________________________.
9. Tenant is paying the full lease rental which has been paid in full as of the
date hereof. No rent or other charges under the Lease have been paid for more
than thirty (30) days in advance of its due date except as follows:
______________________________________________________________________________.
10. All work required to be performed by Landlord under the Lease has been
completed except as follows: _____________________________________.
11. There are no defaults on the part of the Landlord or Tenant under the Lease
except as follows: ____________________________________.
EXHIBIT "G"
51
2
12. Neither Landlord nor Tenant has any defense as to its obligations under the
Lease and claims no set-off or counterclaim against the other party except as
follows: ______________________________.
13. Tenant has no right to any concession (rental or otherwise) or similar
compensation in connection with renting the space it occupies other than as
provided in the Lease except as follows: _______________________________.
All provisions of the Lease and the amendments thereto (if any) referred to
above are hereby ratified.
The foregoing certification is made with the knowledge that ___________________
is relying upon the representations herein made in funding a loan to Landlord
in purchasing the Premises.
EXHIBIT "G"
52
3
IN WITNESS WHEREOF, this certificate has been duly executed and delivered by the
authorized officers of the undersigned as of __________________________________,
19 ___.
TENANT:
,
-------------------------------------------------------------------------------
a
-----------------------------------------------------------------------------
By:
-----------------------------------------------
Print Name: SAMPLE ONLY
------------------------------------
Title: [NOT FOR EXECUTION]
-----------------------------------------
By:
-----------------------------------------------
Print Name:
------------------------------------
Title:
-----------------------------------------
EXHIBIT "G"
53
1
RULES AND REGULATIONS
A. GENERAL RULES AND REGULATIONS. The following rules and regulations govern the
use of the Building and the Development Common Areas. Tenant will be bound by
such rules and regulations and agrees to cause Tenant's Authorized Users, its
employees, subtenants, assignees, contractors, suppliers, customers and invitees
to observe the same.
1. Except as specifically provided in the Lease to which these Rules and
Regulations are attached, no sign, placard, picture, advertisement, name or
notice may be installed or displayed on any part of the outside or inside of the
Building or the Development without the prior written consent of Landlord.
Landlord will have the right to remove, at Tenant's expense and without notice,
any sign installed or displayed in violation of this rule. All approved signs or
lettering on doors and walls are to be printed, painted, affixed or inscribed at
the expense of Tenant and under the direction of Landlord by a person or company
designated or approved by Landlord.
2. If Landlord objects in writing to any curtains, blinds, shades, screens or
hanging plants or other similar objects attached to or used in connection with
any window or door of the Premises, or placed on any windowsill, which is
visible from the exterior of the Premises, Tenant will immediately discontinue
such use. Tenant agrees not to place anything against or near glass partitions
or doors or windows which may appear unsightly from outside the Premises
including from within any interior Common Areas.
3. Tenant will not obstruct any sidewalks, halls, passages, exits, entrances,
elevators, escalators, or stairways of the Development. The halls, passages,
exits, entrances, elevators and stairways are not open to the general public,
but are open, subject to reasonable regulations, to Tenant's business invitees.
Landlord will in all cases retain the right to control and prevent access
thereto of all persons whose presence in the reasonable judgment of Landlord
would be prejudicial to the safety, character, reputation and interest of the
Development and its tenants, provided that nothing herein contained will be
construed to prevent such access to persons with whom any tenant normally deals
in the ordinary course of its business, unless such persons are engaged in
illegal or unlawful activities. No tenant and no employee or invitee of any
tenant will go upon the roof of the Building, except Tenant's engineer and/or
contractor for maintenance and repair of the satellite dish.
4. Tenant will not obtain for use on the Premises ice, drinking water, food,
food vendors, beverage, towel or other similar services or accept barbering or
bootblacking service upon the Premises, except at such reasonable hours and
under such reasonable regulations as may be fixed by Landlord. Landlord
expressly reserves the right to absolutely prohibit solicitation, canvassing,
distribution of handbills or any other written material, peddling, sales and
displays of products, goods and wares in all portions of the Development except
as may be expressly permitted under the Lease. Landlord reserves the right to
restrict and regulate the use of the common areas of the Development and
Building by invitees of tenants providing services to tenants on a periodic or
daily basis including food and beverage vendors. Such restrictions may include
limitations on time, place, manner and duration of access to a tenant's premises
for such purposes. Without limiting the foregoing, Landlord may require that
such parties use service elevators, halls, passageways and stairways for such
purposes to preserve access within the Building for tenants and the general
public.
5. Landlord reserves the right to require tenants to periodically provide
Landlord with a written list of any and all business invitees which periodically
or regularly provide goods and services to such tenants at the premises.
Landlord reserves the right to preclude all vendors from entering or conducting
business within the Building and the Development if such vendors are not listed
on a tenant's list of requested vendors.
6. Landlord reserves the right to exclude from the Building between the hours of
6 p.m. and 8 a.m. the following business day, or such other hours as may be
established from time to time by Landlord, and on Sundays and legal holidays,
any person unless that person is known to the person or employee in charge of
the Building or has a pass or is properly identified. Tenant will be responsible
for all persons for whom it requests passes and will be liable to Landlord for
all acts of such persons. Landlord will not be liable for damages for any error
with regard to the admission to or exclusion from the Building of any person.
Landlord reserves the right to prevent access to the Building in case of
invasion, mob, riot, public excitement or other commotion by closing the doors
or by other appropriate action.
EXHIBIT "H"
-----------
Page 1
54
2
7. The directory of the Building or the Development will be provided exclusively
for the display of the name and location of tenants only and Landlord reserves
the right to exclude any other names therefrom.
8. All cleaning and janitorial services for the Development and the Premises
will be provided exclusively through Landlord, and except with the written
consent of Landlord, no person or persons other than those approved by Landlord
will be employed by Tenant or permitted to enter the Development for the purpose
of cleaning the same. Tenant will not cause any unnecessary labor by
carelessness or indifference to the good order and cleanliness of the Premises.
9. Landlord will furnish Tenant, free of charge, with two keys to each entry
door lock in the Premises. Landlord may make a reasonable charge for any
additional keys. Tenant shall not make or have made additional keys, and Tenant
shall not alter any lock or install any new additional lock or bolt on any door
of the Premises. Tenant, upon the termination of its tenancy, will deliver to
Landlord the keys to all doors which have been furnished to Tenant, and in the
event of loss of any keys so furnished, will pay Landlord therefor.
10. If Tenant requires telegraphic, telephonic, burglar alarm, satellite dishes,
antennae or similar services, it will first obtain Landlord's approval, and
comply with, Landlord's reasonable rules and requirements applicable to such
services, which may include separate licensing by, and fees paid to, Landlord.
Landlord will not charge Tenant a fee in excess of $1,200 per month for use of
such roof space per satellite dish.
11. Freight elevator(s) will be available for use by all tenants in the
Building, subject to such reasonable scheduling as Landlord, in its sole and
absolute discretion, deems appropriate. No equipment, materials, furniture,
packages, supplies, merchandise or other property will be received in the
Building or carried in the elevators except between such hours and in such
elevators as may be designated by Landlord. Tenant's initial move in and
subsequent deliveries of bulky items, such as furniture, safes and similar items
will, unless otherwise agreed in writing by Landlord, be made during the hours
of 6:00 p.m. to 6:00 a.m. or on Saturday or Sunday. Deliveries during normal
office hours shall be limited to normal office supplies and other small items.
No deliveries will be made which impede or interfere with other tenants or the
operation of the Building.
12. Tenant will not place a load upon any floor of the Premises which exceeds
the load per square foot which such floor was designed to carry and which is
allowed by law. Landlord will have the right to reasonably prescribe the weight,
size and position of all safes, heavy equipment, files, materials, furniture or
other property brought into the Building. Heavy objects will, if considered
necessary by Landlord, stand on such platforms as determined by Landlord to be
necessary to properly distribute the weight, which platforms will be provided at
Tenant's expense. Business machines and mechanical equipment belonging to
Tenant, which cause noise or vibration that may be transmitted to the structure
of the Building or to any space therein to such a degree as to be objectionable
to any tenants in the Building or Landlord, are to be placed and maintained by
Tenant, at Tenant's expense, on vibration eliminators or other devises
sufficient to eliminate noise or vibration. Tenant will be responsible for all
structural engineering required to determine structural load, as well as the
expense thereof. The persons employed to move such equipment in or out of the
Building must be reasonably acceptable to Landlord. Landlord will not be
responsible for loss of, or damage to, any such equipment or other property from
any cause, and all damage done to the Building by maintaining or moving such
equipment or other property will be repaired at the expense of Tenant.
13. Tenant will not use or keep in the Premises any kerosene, gasoline or
inflammable or combustible fluid or material other than those limited quantities
necessary for the operation or maintenance of office equipment. Tenant will not
use or permit to be used in the Premises any foul or noxious gas or substance,
or permit or allow the Premises to be occupied or used in a manner offensive or
objectionable to Landlord or other occupants of the Building by reason of noise,
odors or vibrations, nor will Tenant bring into or keep in or about the Premises
any birds or animals.
14. Tenant will not use any method of heating or air conditioning other than
that supplied by Landlord without Landlord's prior written consent.
15. Tenant will not waste electricity, water or air conditioning and agrees to
cooperate fully with Landlord to assure the most effective operation of the
Building's heating and air conditioning and to comply with any governmental
energy-saving rules, laws or regulations of which Tenant has actual notice, and
will refrain from attempting to adjust controls. Tenant will keep corridor doors
closed, and shall keep all window coverings pulled down.
EXHIBIT "H"
-----------
Page 2
55
3
16. Landlord reserves the right, exercisable without notice and without
liability to Tenant, to change the name and street address of the Building.
Without the prior written consent of Landlord, which Landlord may deny with or
without cause, Tenant will not use the name, photograph or likeness of the
Building or the Development in connection with or in promoting or advertising
the business of Tenant except as Tenant's address.
17. Tenant will close and lock the doors of its Premises and entirely shut off
all water faucets or other water apparatus, and lighting or gas before Tenant
and its employees leave the Premises. Tenant will be responsible for any damage
or injuries sustained by other tenants or occupants of the Building or by
Landlord for noncompliance with this rule.
18. The toilet rooms, toilets, urinals, wash bowls and other apparatus will 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. The expense of
any breakage, stoppage or damage resulting from any violation of this rule will
be borne by the tenant who, or whose employees or invitees, break this rule.
Cleaning of equipment of any type is prohibited.
19. Tenant will not sell, or permit the sale at retail of newspapers, magazines,
periodicals, theater tickets or any other goods or merchandise to the general
public in or on the Premises. Tenant will not use the Premises for any business
or activity other than that specifically provided for in this Lease. Tenant will
not conduct, nor permit to be conducted, either voluntarily or involuntarily,
any auction upon the Premises without first having obtained Landlord's prior
written consent, which consent Landlord may withhold in its sole and absolute
discretion.
20. Tenant will not install any radio or television antenna, loudspeaker,
satellite dishes or other devices on the roof(s) or exterior walls of the
Building or the Development without Landlord's prior written consent. Tenant
will not interfere with radio or television broadcasting or reception from or in
the Development or elsewhere.
21. Except for the ordinary hanging of pictures and wall decorations, Tenant
will not xxxx, drive nails, screw or drill into the partitions, woodwork or
plaster or in any way deface the Premises or any part thereof, except in
accordance with the provisions of the Lease pertaining to alterations. Landlord
reserves the right to direct electricians as to where and how telephone and
telegraph wires are to be introduced to the Premises. Tenant will not cut or
bore holes for wires. Tenant will not affix any floor covering to the floor of
the Premises in any manner except as approved by Landlord. Tenant shall repair
any damage resulting from noncompliance with this rule.
22. [intentionally omitted]
23. Landlord reserves the right to exclude or expel from the Development any
person who, in Landlord's judgment, is intoxicated or under the influence of
liquor or drugs or who is in violation of any of the Rules and Regulations of
the Building.
24. Tenant will store all its trash and garbage within its Premises or in other
facilities provided by Landlord. Tenant will not place in any trash box or
receptacle any material which cannot be disposed of in the ordinary and
customary manner of trash and garbage disposal. All garbage and refuse disposal
is to be made in accordance with directions issued from time to time by
Landlord.
25. The Premises will not be used for lodging or for the storage of merchandise
held for sale to the general public, or for lodging or for manufacturing of any
kind, nor shall the Premises be used for any improper, immoral or objectionable
purpose. No cooking will be done or permitted on the Premises without Landlord's
consent, except the use by Tenant of Underwriters' Laboratory approved equipment
for brewing coffee, tea, hot chocolate and similar beverages shall be permitted,
and the use of a microwave oven for employees use will be permitted, provided
that such equipment and use is in accordance with all applicable federal, state,
county and city laws, codes, ordinances, rules and regulations.
26. Neither Tenant nor any of its employees, agents, customers and invitees may
use in any space or in the public halls of the Building or the Development any
hand truck except those equipped with rubber tires and side guards or such other
material-handling equipment as Landlord may approve. Tenant will not bring any
other vehicles of any kind into the Building.
EXHIBIT "H"
-----------
Page 3
56
4
27. Tenant agrees to comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental agency.
28. Tenant assumes any and all responsibility for protecting its Premises from
theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed.
29. To the extent Landlord reasonably deems it necessary to exercise exclusive
control over any portions of the Common Areas for the mutual benefit of the
tenants in the Building or the Development, Landlord may do so subject to
reasonable, non-discriminatory additional rules and regulations.
30. Landlord may prohibit smoking in the Building and may require Tenant and any
of its employees, agents, clients, customers, invitees and guests who desire to
smoke, to smoke within designated smoking areas within the Development.
31. Tenant's requirements will be attended to only upon appropriate application
to Landlord's asset management office for the Development by an authorized
individual of Tenant. Employees of Landlord will not perform any work or do
anything outside of their regular duties unless under special instructions from
Landlord, and no employee of Landlord will admit any person (Tenant or
otherwise) to any office without specific instructions from Landlord.
32. These Rules and Regulations are in addition to, and will not be construed to
in any way modify or amend, in whole or in part, the terms, covenants,
agreements and conditions of the Lease. Landlord may waive any one or more of
these Rules and Regulations for the benefit of Tenant or any other tenant, but
no such waiver by Landlord will be construed as a waiver of such Rules and
Regulations in favor of Tenant or any other tenant, nor prevent Landlord from
thereafter enforcing any such Rules and Regulations against any or all of the
tenants of the Development.
33. Landlord reserves the right to make such other and reasonable and
non-discriminatory Rules and Regulations as, in its judgment, may from time to
time be needed for safety and security, for care and cleanliness of the
Development and for the preservation of good order therein. Tenant agrees to
abide by all such Rules and Regulations herein above stated and any additional
reasonable and non-discriminatory rules and regulations which are adopted.
Tenant is responsible for the observance of all of the foregoing rules by
Tenant's employees, agents, clients, customers, invitees and guests.
B. PARKING RULES AND REGULATIONS. The following rules and regulations govern the
use of the parking facilities which serve the Building. Tenant will be bound by
such rules and regulations and agrees to cause its employees, subtenants,
assignees, contractors, suppliers, customers and invitees to observe the same:
1. Tenant will not permit or allow any vehicles that belong to or are controlled
by Tenant or Tenant's employees, subtenants, customers or invitees to be loaded,
unloaded or parked in areas other than those designated by Landlord for such
activities. No vehicles are to be left in the parking areas overnight and no
vehicles are to be parked in the parking areas other than normally sized
passenger automobiles, motorcycles and pick-up trucks. No extended term storage
of vehicles is permitted.
2. Vehicles must be parked entirely within painted stall lines of a single
parking stall.
3. All directional signs and arrows must be observed.
4. The speed limit within all parking areas shall be five (5) miles per hour.
5. Parking is prohibited: (a) in areas not striped for parking; (b) in aisles or
on ramps; (c) where "no parking" signs are posted; (d) in cross-hatched areas;
and (e) in such other areas as may be designated from time to time by Landlord
or Landlord's parking operator.
6. Landlord reserves the right, without cost or liability to Landlord, to tow
any vehicle if such vehicle's audio theft alarm system remains engaged for an
unreasonable period of time.
EXHIBIT "H"
-----------
Page 4
57
5
7. Washing, waxing, cleaning or servicing of any vehicle in any area not
specifically reserved for such purpose is prohibited.
8. Landlord may refuse to permit any person to park in the parking facilities
who violates these rules with unreasonable frequency, and any violation of these
rules shall subject the violator's car to removal, at such car owner's expense.
Tenant agrees to use its best efforts to acquaint its employees, subtenants,
assignees, contractors, suppliers, customers and invitees with these parking
provisions, rules and regulations.
9. Parking stickers, access cards, or any other device or form of identification
supplied by Landlord as a condition of use of the parking facilities shall
remain the property of Landlord. Parking identification devices, if utilized by
Landlord, must be displayed as requested and may not be mutilated in any manner.
The serial number of the parking identification device may not be obliterated.
Parking identification devices, if any, are not transferable and any device in
the possession of an unauthorized holder will be void. Landlord reserves the
right to refuse the sale of monthly stickers or other parking identification
devices to Tenant or any of its agents, employees or representatives who
willfully refuse to comply with these rules and regulations and all unposted
city, state or federal ordinances, laws or agreements.
10. Loss or theft of parking identification devices or access cards must be
reported to the management office in the Development immediately, and a lost or
stolen report must be filed by the Tenant or user of such parking identification
device or access card at the time. Landlord has the right to exclude any vehicle
from the parking facilities that does not have a parking identification device
or valid access card. Any parking identification device or access card which is
reported lost or stolen and which is subsequently found in the possession of an
unauthorized person will be confiscated and the illegal holder will be subject
to prosecution.
11. All damage or loss claimed to be the responsibility of Landlord must be
reported, itemized in writing and delivered to the management office located
within the Development within ten (10) business days after any claimed damage or
loss occurs. Any claim not so made is waived. Landlord is not responsible for
damage by water or fire, or for the acts or omissions of others, or for articles
left in vehicles. In any event, the total liability of Landlord, if any, is
limited to Two Hundred Fifty Dollars ($250.00) for all damages or loss to any
car. Landlord is not responsible for loss of use.
12. The parking operators, managers or attendants are not authorized to make or
allow any exceptions to these rules and regulations, without the express written
consent of Landlord. Any exceptions to these rules and regulations made by the
parking operators, managers or attendants without the express written consent of
Landlord will not be deemed to have been approved by Landlord.
13. Landlord reserves the right, without cost or liability to Landlord, to tow
any vehicles which are used or parked in violation of these rules and
regulations.
14. Landlord reserves the right from time to time to modify and/or adopt such
other reasonable and non-discriminatory rules and regulations for the parking
facilities as it deems reasonably necessary for the operation of the parking
facilities.
EXHIBIT "H"
-----------
Page 5
58
6
EXHIBIT I TO LEASE
FORM OF LETTER OF CREDIT
_______________, 1999
Xxxx-LSI I, LLC
RE: Letter of Credit No. ___________
Gentlemen:
We hereby issue in your favor, at the request and for the account of HIGH
SPEED ACCESS CORP., a , our irrevocable Letter of Credit in the
amount of $750,000.00 which is available against presentation of your sight
draft. The draft must be accompanied by:
1. This Letter of Credit No. _____________; and
2. A notarized certification signed as Authorized Signatory on behalf of
Xxxx-LSI I, LLC, or an officer (or member if a limited liability company)
or its transferee or assignee, stating essentially as follows:
"The undersigned Beneficiary is the owner of the property
described in the Office Lease dated between Xxxx-LSI I, LLC, a Colorado
limited liability company, as Landlord, and HIGH SPEED ACCESS CORP., a
Delaware corporation, as Tenant (the "Lease"). The amount requested by
the draft accompanying this statement is the amount to which
Beneficiary is entitled under the terms of the Lease as a result of an
Event of Default under the Lease and Beneficiary requests payment of
the enclosed draft under the enclosed Letter of Credit."
This Letter of Credit shall be subject to the Special Conditions set
forth on Schedule 1 to Exhibit I, such schedule being considered a part hereof
and incorporated herein by reference.
We hereby agree that all drafts drawn under and in compliance with the
terms of this credit shall meet with honor upon presentation and delivery of
documents on or before 5:00 p.m., Denver time, ____________________, as
specified to the drawee, it being a condition of this Letter of Credit that it
shall be automatically extended for periods of at least one year from the
present and each future expiration date unless, at least sixty (60) days prior
to the relevant expiration date, we notify you, by certified mail, return
receipt requested, that we elect not to extend this Letter of Credit for any
additional period.
[BANK]
By:
EXHIBIT "I"
59
7
Title:
EXHIBIT "I"
60
8
Schedule 1 to Exhibit I
To Letter of Credit No. ______________
The Letter of Credit shall be governed by the following Special
Conditions:
1. This Letter of Credit shall be governed by and construed in
accordance with the laws of the State of Colorado, including specifically, but
not limited to, C.R.S. Sections 4-5-101, et seq., entitled Uniform Commercial
Code -- Letters of Credit, as amended. The provisions of Uniform Customs and
Practice for Documentary Credits, I.C.C. Publication No. 500, 1983 Revision,
290, effective October 1, 1975, shall not be applicable to this Letter of
Credit.
2. Issuer agrees that it may not defer honor beyond the close of the
first banking day after presentment of a sight draft drawn hereunder and
accompanying documents.
3. This Letter of Credit shall be transferable and assignable, without
charge, to any person or entity who is the successor or assignee of
Beneficiary's interest under the Lease entered into on or about ,
between Xxxx LSI I, LLC, a Delaware limited liability company, as Landlord, and
HIGH SPEED ACCESS CORP., a . Such transfer shall be accomplished
by providing [BANK] with the appropriate transfer form and the original letter
of credit for endorsement; provided, however, that such transfer shall not be
subject to the approval of [BANK].
EXHIBIT "I"
61
1
EXHIBIT J TO LEASE
FORM OF SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
This Instrument Prepared
By and After Recording
To Be Returned To:
Xxxxxx Xxxx, Esq.
Duane, Morris & Heckscher L.L.P.
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
This Subordination, Non-Disturbance and Attornment Agreement
("AGREEMENT") is made as of this _____ day of __________________, 2000, by and
between HIGH SPEED ACCESS CORP., a Delaware corporation ("TENANT"), and CORUS
BANK, N.A. ("LENDER"), in Chicago, Illinois.
R E C I T A L S
A. Lender is the owner and holder of that certain Second Deed of Trust,
Security Agreement and Financing Statement dated as of January 15, 2000,
recorded with the Jefferson County Recorder's Office on January 19, 2000, as
Document No. F1006014 (the "DEED OF TRUST"), covering the land and building
commonly known as 00000 Xxxx Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000, and
legally described in EXHIBIT "A" attached hereto and incorporated herein (the
"PROPERTY"). The Deed of Trust and any and all other documents or instruments
related thereto, and all renewals, amendments, supplements, restatements,
extensions, and modifications thereof and thereto, are hereinafter collectively
referred to as the "LOAN DOCUMENTS".
B. Tenant is the lessee of certain premises (the "DEMISED PREMISES")
constituting all of the Property, including all of the three (3) story office
building located thereon, such Demised Premises having a common address of 00000
Xxxx Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000, under and pursuant to provisions
of a certain Office Building Lease dated ________________, between Xxxx-LSI I,
LLC, a Delaware limited liability company ("LANDLORD"), and Tenant (said Lease
as the same may be hereafter modified, amended or extended from time to time is
hereinafter collectively referred to as the "LEASE").
C. Lender has required the execution of this Agreement as a condition
of making such deed of trust loan to Landlord.
A G R E E M E N T
For good and valuable consideration, receipt of which is hereby
acknowledged, the parties agree as follows:
1. SUBORDINATION. The parties hereby agree that the Lease is and shall
at all times be subject and subordinate in all respects to the lien of the Deed
of Trust, to all indebtedness and obligations secured thereby, and to all
renewals, modifications, extensions, substitutions, rearrangements and
replacements thereof.
2. NON-DISTURBANCE. Lender agrees that, subject to the terms and
conditions of this Agreement, if any action or proceeding is commenced by Lender
or at Lender's behest for the foreclosure of the Deed of Trust or the sale of
the Property or other realization under the Loan Documents, whether by
foreclosure, deed in lieu of foreclosure, power of sale, or in any other
proceedings made or brought to enforce the rights of Lender, or by any successor
to Lender, Tenant shall not be named as a party therein (unless required by law
to properly foreclose upon the Deed of Trust), and the sale of the Property in
any such action or
EXHIBIT "J"
1
62
2
proceeding and the exercise by Lender of any such action or proceeding and at
the time of its other rights under the Deed of Trust shall be made subject to
all rights of Tenant under the Lease, provided that at the time of any such
action or proceeding and at the time of any such sale or exercise of any such
other rights, Tenant shall not be declared in default, and no event shall have
occurred which with the giving of notice or passage of time or both could result
in a default, under any of the terms, covenants or conditions of the Lease on
Tenant's part to be observed or performed.
3. ATTORNMENT. If the interests of the Landlord in the Property and
under the Lease or any portion thereof are acquired by Lender, whether by
purchase and sale, foreclosure, deed in lieu of foreclosure, power of sale, or
in any other proceeding made or brought to enforce the rights of Lender, or by
any successor to Lender, including without limitation any purchaser at a
foreclosure sale, Tenant shall be bound to Lender, its successors and assigns
under all of the terms, covenants and conditions of the Lease for the balance of
the term thereof, with the same force and effect as if they were named as
landlord under the Lease, and Tenant does hereby attorn to Lender, its
successors and assigns as its landlord, said attornment to be effective and
self-operative immediately upon Lender's or its successor's or assign's
succeeding to the interests of the Landlord in the Property and under the Lease,
without the execution of any other or further instruments on the part of any
party hereto. Tenant covenants and agrees from time to time to do all acts and
to execute all instruments as may reasonably be requested by Lender for the
purposes of fully carrying out and effectuating the purpose and intent of this
Agreement, whether by filing with any public office or agency or otherwise.
4. LIMITATION ON LENDER'S LIABILITY. If Lender succeeds to the
interests of Landlord in the Property and under the Lease, Lender shall
thereupon be bound to Tenant under all of the terms, covenants and conditions of
the Lease, and Tenant shall, from and after Lender's succession to the interests
of Landlord, have the same rights and remedies against Lender for breach of the
Lease that Tenant would have had under the Lease against Landlord if Lender had
not succeeded to the interests of Landlord; provided, however, that Lender shall
not be: (a) liable for any act or omission of any prior landlord (including
without limitation Landlord); (b) subject to any offsets or defenses which
Tenant might have against any prior landlord (including without limitation
Landlord); (c) bound by any surrender, cancellation, agreement or modification
of the Lease made without the prior written consent of Lender; or (d) bound to
return Tenant's security deposit, if any, until such deposit has come into
Lender's (or such successor's) actual possession and Tenant would be entitled to
such security deposit under the Lease. Lender shall be bound by Tenant's payment
of no more than one (1) month's rent in advance under the Lease unless otherwise
approved by Lender.
5. NO MODIFICATION. Tenant agrees that during the term of the Lease or
any extension thereof, Tenant will not enter into any amendment or modification
of the Lease and will not cancel or surrender the Lease without in any such
instance Lender's prior written consent.
6. NO MERGER. Unless Lender shall otherwise expressly agree in writing,
fee title to the Property and the leasehold estate created by the Lease shall
not merge but shall remain separate and distinct, notwithstanding the union of
said estates either in Landlord, in Tenant or in any third party, by purchase,
assignment or in any other matter.
7. REPRESENTATIONS AND WARRANTIES. Tenant hereby represents and
warrants to Lender that there has not been filed by or against Tenant a petition
in bankruptcy, voluntary or otherwise, any assignment for the benefit of
creditors, any petition seeking reorganization or arrangement under the
bankruptcy laws with respect to Tenant.
8. NOTICE TO LENDER. Tenant shall give Lender copies of all written
notices and other written communications given by the Tenant to the Landlord
relating to (a) defaults on the part of the Landlord under the Lease, (b) any
violations of any ordinances, statutes, laws, rules, codes, regulations or
requirements of any governmental agency having jurisdiction over the Property,
and (c) any proposed or actual assignment or subletting of all or any portion of
the Demised Premises. Prior to pursuing any remedy available to Tenant under the
Lease, at law or in equity which Tenant may have as a result of any failure of
Landlord to perform or observe any covenant, condition, provision or obligation
to be performed or observed by Landlord under the Lease (any such failure
hereunder referred to as a "LANDLORD'S DEFAULT"), Tenant shall provide Lender
with a notice of Landlord's Default (the "TENANT'S NOTICE"), which notice may be
sent concurrently with any similar notice to Landlord, specifying the nature
thereof and the remedy which Tenant will elect under the terms of the Lease or
otherwise. Lender shall have thirty (30) days from the date of Tenant's Notice
(or such lesser time if an emergency exists), or such greater time period as
available to Landlord under the Lease, within which to commence to cure
Landlord's Default and diligently proceed to complete such cure at all times
thereafter. Tenant shall not pursue any remedy available to it as a result of
any Landlord's Default unless Lender fails to commence within the time period
set forth above or thereafter fails to diligently pursue a cure of any
Landlord's Default.
EXHIBIT "J"
2
63
3
9. ACCESS. Notwithstanding the provisions of the Lease, if Tenant shall
not have provided Lender with access to the Demised Premises, and if access is
required to remedy such default, the period of time set forth in the Lease in
which to remedy same shall not commence until such access is provided to Lender.
10. NOTICES. Notices shall be in writing and shall be given by personal
delivery, telecopier, followed by U.S. mail, overnight courier, or by mail
addressed as set forth below. Notice by personal delivery shall be deemed
effective upon the delivery of such notice to the party for whom it is intended
at the recipient's address. Notice by telecopier shall be deemed given when
confirmation has been received. Notice by overnight courier shall be deemed
effective twenty-four (24) hours after deposit with a commercial courier or
delivery service for overnight delivery within the United States, or on the
second (2nd) business day after deposit with an international second day
delivery service (as applicable). Notice by mail shall be made by certified or
registered mail, return receipt requested, postage prepaid, properly stamped,
sealed and addressed, and shall be deemed effective on the second (2nd) business
day after deposit in the United States mail. Either party may give notice of any
change of address in accordance with the notice procedures described herein.
TO TENANT: High Speed Access Corp.
------------------------------
With a copy to:
------------------------------
------------------------------
TO LENDER: Corus Bank, N.A.
00 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxx
With a copy to: Duane, Morris & Heckscher L.L.P.
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxx, Esq.
and to: Corus Bank, N.A.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxx, Esq.
11. INTERPRETATION. Whenever possible each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited or
invalid under such law, such provision shall be ineffective only to the extent
of such prohibition or invalidity, without invalidating the remainder of said
document.
12. GOVERNING LAW; LITIGATION. The creation, perfection, priority and
enforcement of the lien created by this Agreement shall be governed by and
constructed in accordance with the laws of the State of Colorado and in all
other respects this Agreement shall be governed by the internal laws of the
State of Illinois without regard to principles of conflicts of laws. TO THE
EXTENT PERMITTED BY LAW, TENANT HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE
JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS AND ANY FEDERAL COURT
SITTING IN CHICAGO, ILLINOIS, OR, AT THE SOLE OPTION OF LENDER, IN ANY OTHER
COURT IN WHICH LENDER SHALL INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH
HAS SUBJECT MATTER
EXHIBIT "J"
3
64
4
JURISDICTION OVER THE MATTER IN CONTROVERSY, FOR THE PURPOSE OF ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH, THIS AGREEMENT, OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN)
OR ACTIONS OF LENDER OR TENANT, AND TENANT FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS BY CERTIFIED MAIL POSTAGE PREPAID, OR BY PERSONAL SERVICE
WITHIN OR WITHOUT THE STATE OF ILLINOIS. TENANT HEREBY EXPRESSLY AND IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE
OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN
ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
13. JURY WAIVER. TO THE MAXIMUM EXTENT PERMITTED BY LAW, TENANT AND
LENDER EACH HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY ACTION,
CAUSE OF ACTION, CLAIM, DEMAND, OR PROCEEDING ARISING UNDER OR WITH RESPECT TO
THIS AGREEMENT, OR IN ANY WAY CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
DEALINGS OF TENANT AND LENDER WITH RESPECT TO THIS AGREEMENT, OR THE
TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE. TO THE MAXIMUM
EXTENT PERMITTED BY LAW, TENANT AND LENDER EACH HEREBY AGREES THAT ANY SUCH
ACTION, CAUSE OF ACTION, CLAIM, DEMAND OR PROCEEDING SHALL BE DECIDED BY A COURT
TRIAL WITHOUT A JURY AND THAT TENANT OR LENDER MAY FILE A COPY OF THIS EXECUTED
AGREEMENT WITH ANY COURT OR OTHER TRIBUNAL AS WRITTEN EVIDENCE OF THE CONSENT OF
TENANT AND LENDER TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
14. MISCELLANEOUS. This Agreement may not be amended or modified except
by an agreement in writing signed by the party to be charged. If any action or
proceeding is brought by any party against any other party arising from or
related to this Agreement or the Lease, the prevailing party shall be entitled
to recover its reasonable costs and attorneys' fees. This Agreement shall inure
to the benefit of and be binding upon the parties hereto, their heirs,
representatives, successors and assigns. Time is of the essence. This document
represents the entire agreement between the parties with respect to the subject
matter hereof and supersedes all prior agreements, representations and
covenants.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
TENANT:
HIGH SPEED ACCESS CORP., a Delaware corporation
By:
--------------------------------------------
Its:
-------------------------------------------
Duly Authorized
LENDER:
CORUS BANK, N.A.
By:
--------------------------------------------
Its:
-------------------------------------------
Duly Authorized
STATE OF ___________ )
EXHIBIT "J"
4
65
5
) SS.
COUNTY OF _________ )
I, _______________________________, a Notary Public in and for said
County in the State aforesaid, do hereby certify that
______________________________________, ______________ of High Speed Access
Corp., a Delaware corporation, personally known to me to be the same person
whose name is subscribed to the foregoing instrument, appeared before me this
day in person and acknowledged that he/she signed and delivered such instrument
as his/her own free and voluntary act and as the free and voluntary act of said
corporation, for the uses and purposes set forth therein set forth.
Given under my hand and notarial seal this ____ day of
________________, 2000.
-------------------------------------
Notary Public
STATE OF ILLINOIS )
) SS.
COUNTY OF _________ )
I, __________________________, a Notary Public in and for said County
in the State aforesaid, do hereby certify that __________________________, the
____________________________ of CORUS BANK, N.A. (the "BANK"), who is personally
known to me to be the same person whose name is subscribed to the foregoing
instrument as such __________________, appeared before me this day in person and
acknowledged that he/she signed and delivered the said instrument as his/her own
free and voluntary act and as the free and voluntary act of said Bank, for the
uses and purposes therein set forth.
Given under my hand and notarial seal this ____ day of ______________,
2000.
-------------------------------------
Notary Public
EXHIBIT "J"
5
