OFFICE BUILDING LEASE
This Lease between Airplaza Co., Inc, a Colorado
corporation ("Landlord"), and Air Methods Corporation
International, a Colorado corporation,("Tenant"), is dated
March 2,1998.
1. LEASE OF PREMISES.
In consideration of the Rent (as defined at Section 5.4)
and the provisions of this Lease, Landlord leases to Tenant
and Tenant leases from Landlord the Premises shown by
diagonal lines on the floor plan attached hereto as Exhibit
"A", and further described at Section 21. The Premises are
located within the Building and Project described in
Section 2m. Tenant shall have the non-exclusive right
(unless otherwise provided herein) in common with Landlord,
other tenants, subtenants and invitees, to use of the
Common Areas (as defined at Section 2e).
2. DEFINITIONS
As used in this Lease, the following terms shall have the
following meanings:
a. Base Rent (initial): $150,613.08 per year.
b. Base Year: The calendar year of 1998.
c. Broker(s)
Landlord's: None
Tenant's: Xxxxxxx & Xxxxxxxxx of Colorado, Inc.
d. Commencement Date: April 1, l998
e. Common Areas: the building lobbies, common corridors
and hallways, restrooms, garage and parking areas,
stairways, elevators and other generally understood public
or common areas. Landlord shall have the right to regulate
or restrict the use of the Common Areas.
f. Expense Stop: (fill in if applicable): $ N/A
g. Expiration Date: March 31, 2003, unless otherwise
sooner terminated in accordance with the provisions of this
Lease.
h. Index (Section 5.2): United States Department of
Labor, Bureau of Labor Statistics Consumer Price Index for
All Urban Consumers, U.S. City Average, Subgroup "All
Items" (1967 = 100).
i. Landlord's Mailing Address: 0000 XXX Xxxxxxxxx, Xxxxx
000, Xxxxxxxxx, Xxxxxxxx 00000
Tenant's Mailing Address: 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000
j. Monthly Installments of Base Rent (Initial): $12,551.09 per month.
k. Parking: Tenant shall be permitted, at no additional
charge, to park 30 cars on a non-exclusive basis in the
area(s) designated by Landlord for parking. Tenant shall
abide by any and all parking regulations and rules
established from time to time by Landlord or Landlord's
parking operator. Landlord reserves the right to separately
charge Tenant's guests and visitors for parking.
l. Premises: that portion of the Building containing
approximately 10,503 square feet of Rentable Area, shown by
diagonal lines on-Exhibit "A", located on the first (1st)
and second (2nd) floor of the Building and known as Suites
100 and 200.
m. Project: the office building known as 0000 Xxxxx Xxxxxx
Xxxxxx of which the Premises are a part (the "Building" and
any other buildings or improvements on the real property
(the "Property') located at 7211 - 0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000 and further described at
Exhibit "B." The Project is known as Airplaza 22.
n. Rentable Area: as to both the Premises and the Project,
the respective measurements of floor area as may from time
to time be subject to lease by Tenant and all tenants of
the Project, respectively, as determined by Landlord and
applied on a consistent basis throughout the Project.
o. Security Deposit (Section 7): $ Zero (0)
p. State: the State of Colorado
q. Tenant's First Adjustment Date (Section 5.2): April 1, 1999
r. Tenant's Proportionate Share: See Addendum One -
Additional Provisions
s. Tenant's Use Clause (Article 8): general office purposes
t. Term: the period commencing on the Commencement Date and
expiring at midnight on the Expiration Date.
3. EXHIBITS AND ADDENDA.
The exhibits and addenda listed below (unless lined out)
are incorporated by reference in this Lease:
a. Exhibit "A" - Floor Plan showing the Premises.
b. Exhibit "B" - Site Plan of the Project.
c. Exhibit "C" - Work Agreement.
d. Exhibit "D" - Rules and Regulations.
f. Addenda: Addendum One - Additional Provisions
5. RENT.
5.1 Payment of Base Rent. Tenant agrees to pay the Base
Rent for the Premises. Monthly Installments of Base Rent
shall be payable in advance on the first day of each
calendar month of the Term. If the Term begins (or ends) on
other than the first (or last) day of a calendar month, the
Base Rent for the partial month shall be prorated on a per
diem basis. Tenant shall pay Landlord the first Monthly
Installment of Base Rent when Tenant executes the Lease.
5.2 Adjusted Base Rent.
a. The Base Rent (and the corresponding Monthly
Installments of Base Rent) set forth at Section 2a shall be
adjusted annually (the "Adjustment Date"), commencing on
Tenant's First Adjustment Date. Adjustments, if any, shall
be based upon increases (if any) in the Index. The Index in
publication three (3) months before the Commencement Date
shall be the "Base Index" The Index in publication three
(3) months before each Adjustment Date shall be the
"Comparison Index." As of each Adjustment Date, the Base
Rent payable during the ensuing twelve-month period shall
be determined by increasing the initial Base Rent by a
percentage equal to the percentage increase, if any, in the
Comparison Index over the Base Index. If the Comparison
Index for any Adjustment Date is equal to or less than the
Comparison Index for the preceding Adjustment Date (or the
Base Index, in the case-of First Adjustment Date), the Base
Rent for the ensuing twelve-month period shall remain the
amount of Base Rent payable during the preceding twelve-
month period. When the Base Rent payable as of each
Adjustment Date is determined, Landlord shall promptly give
Tenant written notice of such adjusted Base Rent and the
manner in which it was computed. The Base Rent as so
adjusted from time to time shall be the "Base Rent" for all
purposes under this Lease.
b. If at any Adjustment Date the Index no longer exists in the form
described in this Lease, Landlord may substitute any substantially
equivalent official index published by the Bureau of Labor Statistics
or its successor. Landlord shall use any appropriate conversion
factors to accomplish such substitution. The substitute index shall
then become the "Index" hereunder.
See Addendum One - Additional Provisions.
5.3 Project Operating Costs.
a. In order that the Rent payable during the Term reflect any
Increase in Project Operating Costs, Tenant agrees to pay to Landlord
as Rent, Tenant's Proportionate Share of all increases in costs,
expenses and obligations attributable to the Project and its
operation, all as provided below.
b. If, during any calendar year during the Term, Project Operating
Costs exceed the Project Operating Costs for the Base Year, Tenant
shall pay to Landlord, in addition to the Base Rent and all other
payments due under this Lease, an amount equal to Tenant's
Proportionate Share of such excess Project Operating Costs in
accordance with the provisions of this Section 5.3b.
(1) The term "Project Operating Costs" shall include all
those Items described in the following subparagraphs (a)
and (b).
(a) All taxes, assessments, water and sewer charges and
other similar governmental charges levied on or
attributable to the Building or Project or their operation,
including without limitation, (I) real property taxes or
assessments levied or assessed against the Building or
Project, (ii) assessments or charges levied or assessed
against the Building or Project by any redevelopment
agency, (iii) any tax measured by gross rentals received
from the leasing of the Premises, Building or Project,
excluding any net income, franchise, capital stock, estate
or inheritance taxes imposed by the State or federal
government or their agencies, branches or departments;
provided that if at any time during the Term any
governmental entity levies, assesses or imposes on Landlord
any (1) general or special, ad valorem or specific, excise,
capital levy or other tax, assessment, levy or charge
directly on the Rent received under this Lease or on the
rent received under any other leases of space in the
Building or Project, or (2) any license fee, excise or
franchise tax, assessment, levy or charge measured by or
based, in whole or In part, upon such rent, or (3) any
transfer, transaction, or similar tax, assessment, levy or
charge based directly or indirectly upon the transaction
represented by this Lease or such other leases, or (4) any
occupancy, use, per capita or other tax, assessment, levy
or charge based directly or indirectly upon the use or
occupancy of the Premises or other premises within the
Building or Project, then any such taxes, assessments,
levies and charges shall be deemed to be included in the
term Project Operating Costs. If at any time during the
Term the assessed valuation of, or taxes on, the Project
are not based on a completed Project having at least eighty-
five percent (85%) of the Rentable Area occupied, then the
"taxes" component of Project Operating Costs shall be
adjusted by Landlord to reasonably approximate the taxes
which would have been payable if the Project were completed
and at least eighty-five percent (85%) occupied.
(b) Operating costs incurred by Landlord in maintaining
and operating the Building and Project, including without
limitation the following: costs of (1) utilities; (2)
supplies; (3) insurance (including public liability,
property damage, earthquake, and fire and extended coverage
insurance for the full replacement cost of the Building and
Project as required by Landlord or its lenders for the
Project; (4) services of Independent contractors; (5)
compensation (including employment taxes and fringe
benefits) of all persons who perform duties connected with
the operation, maintenance, repair or overhaul of the
Building or Project, and equipment, improvements and
facilities located within the Project, Including without
limitation engineers, janitors, painters, floor waxers,
window washers, security and parking personnel and
gardeners (but excluding persons performing services not
uniformly available to or performed for substantially all
Building or Project tenants); (6) operation and maintenance
of a room for delivery and distribution of mail to tenants
of the Building or Project as required by the U.S. Postal
Service (Including, without limitation, an amount equal to
the fair market rental value of the mail room premises);
(7) management of the Building or Project, whether managed
by Landlord or an Independent contractor (including,
without limitation, an amount equal to the fair market
value of any on-site manager's office) provided that such
management costs for the Project shall not exceed five
percent (5%) of Landlord's gross income from the Project;
(8) rental expenses for (or a reasonable depreciation
allowance on) personal property used in the maintenance,
operation or repair of the Building or Project; (9) costs,
expenditures or charges (whether capitalized or not)
required by any governmental or quasi-governmental
authority; (10) amortization of capital expenses (including
financing costs) (I) required by a governmental entity for
energy conservation or life safety purposes, or (ii) made
by Landlord to reduce Project Operating Costs; and (11) any
other costs or expenses incurred by Landlord under this
Lease and not otherwise reimbursed by tenants of the
Project. If at any time during the Term, less than eighty-
five percent (85%) of the Rentable Area of the Project is
occupied, the "operating costs" component of Project
Operating Costs shall be adjusted by Landlord to reasonably
approximate the operating costs which would have been
incurred if the Project had been at least eighty-five
percent (85%) occupied.
(2) Tenant's Proportionate Share of Project Operating
Costs shall be payable by Tenant to Landlord as follows:
(a) Beginning with the calendar year following the Base
Year and for each calendar year thereafter ("Comparison
Year"), Tenant shall pay Landlord an amount equal to
Tenant's Proportionate Share of the Project Operating Costs
incurred by Landlord in the Comparison Year which exceeds
the total amount of Project Operating Costs payable by
Landlord for the Base Year. This excess is referred to as
the "Excess Expenses."
(b) To provide for current payments of Excess Expenses,
Tenant shall, at Landlord's request, pay as additional rent
during each Comparison Year, an amount equal to Tenant's
Proportionate Share of the Excess Expenses payable during
such Comparison Year, as estimated by Landlord from time to
time. Such payments shall be made in monthly installments,
commencing on the first day of the month following the
month in which Landlord notifies Tenant of the amount it is
to pay hereunder and continuing until the first day of the
month following the month in which Landlord gives Tenant a
new notice of estimated Excess Expenses. It is the
intention hereunder to estimate from time to time the
amount of the Excess Expenses for each Comparison Year and
Tenant's Proportionate Share thereof, and then to make an
adjustment in the following year based on the actual Excess
Expenses incurred for that Comparison Year.
(c) On or before April 1 of each Comparison Year after the
first Comparison Year (or as soon thereafter as is
practical), Landlord shall deliver to Tenant a statement
setting forth Tenant's Proportionate Share of the Excess
Expenses for the preceding Comparison Year. If Tenant's
Proportionate Share of the actual Excess Expenses for the
previous Comparison Year exceeds the total of the estimated
monthly payments made by Tenant for such year, Tenant shall
pay Landlord the amount of the deficiency within ten (10)
days of the receipt of the statement. If such total exceeds
Tenant's Proportionate Share of the actual Excess Expenses
for such Comparison Year, then Landlord shall credit
against Tenant's next ensuing monthly installment(s) of
additional rent an amount equal to the difference until the
credit is exhausted. If a credit is due from Landlord on
the Expiration Date, Landlord shall pay Tenant the amount
of the credit. The obligations of Tenant and Landlord to
make payments required under this Section 5.3 shall survive
the Expiration Date.
(d) Tenant's Proportionate Share of Excess Expenses In any
Comparison Year having less than 365 days shall be
appropriately prorated.
(e) If any dispute arises as to the amount of any
additional rent due hereunder, Tenant shall have the right
after reasonable notice and at reasonable times to inspect
Landlord's accounting records at Landlord's accounting
office and, if after such inspection Tenant still disputes
the amount of additional rent owed, a certification as to
the proper amount shall be made by Landlord's certified
public accountant, which certification shall be final and
conclusive. Tenant agrees to pay the cost of such
certification unless it is determined that Landlord's
original statement overstated Project Operating Costs by
more than five percent (5%).
5.4 Definition of Rent. All costs and expenses which
Tenant assumes or agrees to pay to Landlord under this
Lease shall be deemed additional rent (which, together with
the Base Rent is sometimes referred to as the "Rent"). The
Rent shall be paid to the building manager (or other
person) and at such place, as Landlord may from time to
time designate in writing, without any prior demand
therefor and without deduction or offset, in lawful money
of the United States of America.
5.5 Rent Control. If the amount of Rent or any other
payment due under this Lease violates the terms of any
governmental restrictions on such Rent or payment, then the
Rent or payment due during the period of such restrictions
shall be the maximum amount allowable under those
restrictions. Upon termination of the restrictions,
Landlord shall, to the extent it is legally permitted,
recover from Tenant the difference between the amounts
received during the period of the restrictions and the
amounts Landlord would have received had there been no
restrictions.
5.6 Taxes Payable by Tenant. In addition to the Rent and
any other charges to be paid by Tenant hereunder, Tenant
shall reimburse Landlord upon demand for any and all taxes
payable by Landlord (other than net income taxes) which are
not otherwise reimbursable under this Lease, whether or not
now customary or within the contemplation of the parties,
where such taxes are upon, measured by or reasonably
attributable to (a) the cost or value of Tenant's
equipment, furniture, fixtures and other personal property
located in the Premises, or the cost or value of any
leasehold improvements made in or to the Premises by or for
Tenant, other than Building Standard Work made by Landlord,
regardless of whether title to such improvements is held by
Tenant or Landlord; (b) the gross or net Rent payable under
this Lease, including, without limitation, any rental or
gross receipts tax levied by any taxing authority with
respect to the receipt of the Rent hereunder; (c) the
possession, leasing, operation, management, maintenance,
alteration, repair, use or occupancy by Tenant of the
Premises or any portion thereof; or (d) this transaction or
any document to which Tenant is a party creating or
transferring an interest or an estate in the Premises; If
it becomes unlawful for Tenant to reimburse Landlord for
any costs as required under this Lease, the Base Rent shall
be revised to net Landlord the same net Rent after
imposition of any tax or other charge upon Landlord as
would have been payable to Landlord but for the
reimbursement being unlawful.
6. INTEREST AND LATE CHARGES.
If Tenant fails to pay when due any Rent or other amounts
or charges which Tenant is obligated to pay-under the terms
of this Lease, the unpaid amounts shall bear interest at
the maximum rate then allowed by law. Tenant acknowledges
that the late payment of any Monthly Installment of Base
Rent will cause Landlord to lose the use of that money and
incur costs and expenses not contemplated under this Lease,
including without limitation, administrative and collection
costs and processing and accounting expenses, the exact
amount of which is extremely difficult to ascertain.
Therefore, in addition to interest, if any such installment
is not received by Landlord within ten (10) days from the
date it is due, Tenant shall pay Landlord a late charge
equal to five percent (5%) of such installment. Landlord
and Tenant agree that this late charge represents a
reasonable estimate of such costs and expenses and is fair
compensation to Landlord for the loss suffered from such
nonpayment by Tenant Acceptance of any interest or late
charge shall not constitute a waiver of Tenant's default
with respect to such nonpayment by Tenant nor prevent
Landlord from exercising any other rights or remedies
available to Landlord under this Lease
8. TENANT'S USE OF THE PREMISES.
Tenant shall use the Premises solely for the purposes set
forth in Tenant's Use Clause. Tenant shall not use or
occupy the Premises in violation of law or any covenant,
condition or restriction affecting the Building or Project
or the certificate of occupancy issued for the Building or
Project, and shall, upon notice from Landlord, immediately
discontinue any use of the Premises which is declared by
any governmental authority having jurisdiction to be a
violation of law or the certificate of occupancy. Tenant,
at Tenant's own cost and expense, shall comply with all
laws, ordinances, regulations, rules and/or any directions
of any governmental agencies or authorities having
jurisdiction which shall, by reason of the nature of
Tenant's use or occupancy of the premises, impose any duty
upon Tenant or Landlord with respect to the Premises or its
use or occupation. A judgment of any court of competent
jurisdiction or the admission by Tenant in any action or
proceeding against Tenant that Tenant has violated any such
laws, ordinances, regulations, rules and/or directions in
the use of the Premises shall be deemed to be a conclusive
determination of that fact as between Landlord and Tenant.
Tenant shall not do or permit to be done anything which
will invalidate or increase the cost of any fire, extended
coverage or other insurance policy covering the Building or
Project and/or property located therein, and shall comply
with all rules, orders, regulations, requirements and
recommendations of the insurance Services Office or any
other organization performing a similar function. Tenant
shall promptly upon demand reimburse Landlord for any
additional premium charged for such policy by reason of
Tenant's failure to comply with the provisions of this
Article. Tenant shall not do or permit anything to be done
in or about the Premises which will in any way obstruct or
Interfere with the rights of other tenants or occupants of
the Building or Project, or injure or annoy them, or use or
allow the Premises to be used for any improper, immoral,
unlawful or objectionable purpose, nor shall Tenant cause,
maintain or permit any nuisance in, on or about the
Premises. Tenant shall not commit or suffer to be committed
any waste in or upon the Premises.
9. SERVICES AND UTILITIES.
Provided that Tenant is not in default hereunder,
Landlord agrees to furnish to the Premises during
generally recognized business days, and during hours
determined by Landlord in its sole discretion, and
subject to the Rules and Regulations of the Building or
Project, electricity for normal desk top office
equipment and normal copying equipment, and heating,
ventilation and air conditioning ("HVAC") as required in
Landlord's judgment for the comfortable use and
occupancy of the Premises. If Tenant desires HVAC at any
other time, Landlord shall use reasonable efforts to
furnish such service upon reasonable notice from Tenant
and Tenant shall pay Landlord's charges therefor on
demand. Landlord shall also maintain and keep lighted
the common stairs, common entries and restrooms in the
Building. Landlord shall not be in default hereunder or
be liable for any damages directly or indirectly
resulting from, nor shall the Rent be abated by reason
of (i) the installation, use or interruption of use, of
any equipment in connection with the furnishing of any
of the foregoing services, (ii) failure to furnish or
delay in furnishing any such services where such failure
or delay is caused by accident or any condition or event
beyond the reasonable control of Landlord, or by the
making of necessary repairs or improvements to the
Premises, Building or Project, or (iii) the limitation,
curtailment or rationing of, or restrictions on, use of
water, electricity, gas or any other form of energy
serving the Premises, Building or Project. Landlord
shall not be liable under any circumstances for a loss
of, or injury to, property or business, however
occurring, through or in connection with or incidental
to failure to furnish any such services. If Tenant uses
heat generating machines or equipment in the Premises
which affect the temperature otherwise maintained by the
HVAC system, Landlord reserves the right to install
supplementary air conditioning units in the Premises and
the cost thereof, including the cost of installation,
operation and maintenance thereof, shall be paid by
Tenant to Landlord upon demand by Landlord.
Tenant shall not, without the written consent of
Landlord, use any apparatus or device in the Premises,
including without limitation, electronic data processing
machines, punch card machines or machines using in
excess of 120 volts, which consumes more electricity
than is usually furnished or supplied for the use of
premises as general office space, as determined by
Landlord. Tenant shall not connect any apparatus with
electric current except through existing electrical
outlets in the Premises. Tenant shall not consume water
or electric current in excess of that usually furnished
or supplied for the use of premises as general office
space (as determined by Landlord), without first
procuring the written consent of Landlord, which
Landlord may refuse, and in the event of consent,
Landlord may have installed a water meter or electrical
current meter in the Premises to measure the amount of
water or electric current consumed. The cost of any such
meter and of its installation, maintenance and repair
shall be paid for by the Tenant and Tenant agrees to pay
to Landlord promptly upon demand for all such water and
electric current consumed as shown by said meters, at
the rates charged for such services by the local public
utility plus any additional expense incurred in keeping
account of the water and electric current so consumed.
If a separate meter is not installed, the excess cost
for such water and electric current shall be established
by an estimate made by a utility company or electrical
engineer hired by Landlord at Tenant's expense.
Nothing contained in this Article shall restrict
Landlord's right to require at anytime separate metering
of utilities furnished to the Premises. In the event
utilities are separately metered, Tenant shall pay
promptly upon demand for all utilities consumed at
utility rates charged by the local public utility plus
any additional expense incurred by Landlord in keeping
account of the utilities so consumed. Tenant shall be
responsible for the maintenance and repair of any such
meters at its sole cost.
Landlord shall furnish elevator service, lighting
replacement for building standard lights, restroom
supplies, window washing and janitor services in a
manner that such services are customarily furnished to
comparable office buildings in the area.
10. CONDITION OF THE PREMISES.
Tenant's taking possession of the Premises shall be
deemed conclusive evidence that as of the date of taking
possession the Premises are in good order and
satisfactory condition, except for such matters as to
which Tenant gave Landlord notice on or before the
Commencement Date. No promise of Landlord to alter,
remodel, repair or improve the Premises, the Building or
the Project and no representation, express or implied,
respecting any matter or thing relating to the Premises,
Building, Project or this Lease (including, without
limitation, the condition of the Premises, the Building
or the Project) have been made to Tenant by Landlord or
its Broker or Sales Agent, other than as may be
contained herein or in a separate exhibit or addendum
signed by Landlord and Tenant.
11. CONSTRUCTION, REPAIRS AND MAINTENANCE.
a. Landlord's Obligations. Landlord shall perform
Landlord's Work to the Premises as described in Exhibit
"C". Landlord shall maintain in good order, condition
and repair the Building and all other portions of the
Premises not the obligation of Tenant or of any other
tenant in the Building.
b. Tenant's Obligations.
(1) Tenant shall perform Tenant's Work to the Premises
as described in Exhibit "C."
(2) Tenant at Tenant's sole expense shall, except for
services furnished by Landlord pursuant to Article 9
hereof, maintain the Premises in good order, condition
and repair, including the interior surfaces of the
ceilings, walls and floors, all doors, all interior
windows, all plumbing pipes and fixtures, electrical
wiring, switches and fixtures, Building Standard
furnishings and special items and equipment installed by
or at the expense of Tenant.
(3) Tenant shall be responsible for all repairs and
alterations in and to the Premises, Building and Project
and the facilities and systems thereof, the need for
which arises out of (i) Tenant's use or occupancy of the
Premises, (ii) the installation, removal, use or
operation of Tenant's Property (as defined in Article
13) in the Premises, (iii) the moving of Tenant's
Property into or out of the Building, or (iv) the act,
omission, misuse or negligence of Tenant, its agents,
contractors, employees or invitees.
(4) If Tenant falls to maintain the premises in good
order, condition and repair, Landlord shall give Tenant
notice to do such acts as are reasonably required to so
maintain the Premises. If Tenant fails to promptly
commence such work and diligently prosecute it to
completion, then Landlord shall have the right to do
such acts and expend such funds at the expense of Tenant
as are reasonably required to perform such work. Any
amount so expended by Landlord shall be paid by Tenant
promptly after demand with interest at the prime
commercial rate then being charged by Norwest Bank,
Denver plus two percent (2%) per annum, from the date of
such work, but not to exceed the maximum rate then
allowed by law. Landlord shall have no liability to
Tenant for any damage, inconvenience, or interference
with the use of the Premises by Tenant as a result of
performing any such work.
c. Compliance with Law. Landlord and Tenant shall each
do all acts required to comply with all applicable laws,
ordinances, and rules of any public authority relating
to their respective maintenance obligations as set forth
herein
d. Waiver by Tenant. Tenant expressly waives the
benefits of any statute now or hereafter in effect which
would otherwise afford the Tenant the right to make
repairs at Landlord's expense or to terminate this Lease
because of Landlord's failure to keep the Premises in
good order, condition and repair.
e. Load and Equipment Limits. Tenant shall not place a
load upon any floor of the Premises which exceeds the
load per square foot which such floor was designed to
carry, as determined by Landlord or Landlord's
structural engineer. The cost of any such determination
made by Landlord's structural engineer shall be paid for
by Tenant upon demand. Tenant shall not install business
machines or mechanical equipment which cause noise or
vibration to such a degree as to be objectionable to
Landlord or other Building tenants.
f. Except as otherwise expressly provided in this Lease,
Landlord shall have no liability to Tenant nor shall
Tenant's obligations under this Lease be reduced or
abated in any manner whatsoever by reason of any
inconvenience, annoyance, Interruption or injury to
business arising from Landlord's making any repairs or
changes which Landlord is required or permitted by this
Lease or by any other tenant's lease or required by law
to make in or to any portion of the Project, Building or
the Premises. Landlord shall nevertheless use reasonable
efforts to minimize any interference with Tenant's
business in the Premises.
g. Tenant shall give Landlord prompt notice of any
damage to or defective condition in any part or
appurtenance of the Building's mechanical, electrical,
plumbing, HVAC or other systems serving, located in, or
passing through the Premises.
h. Upon the expiration or earlier termination of this
Lease, Tenant shall return the Premises to Landlord
clean and in the same condition as on the date Tenant
took possession, except for normal wear and tear. Any
damage to the Premises, including any structural damage,
resulting from Tenant's use or from the removal of
Tenant's fixtures, furnishings and equipment pursuant to
Section 13b shall be repaired by Tenant at Tenant's
expense.
12. ALTERATIONS AND ADDITIONS.
a. Tenant shall not make any additions, alterations or
improvements to the Premises without obtaining the prior
written consent of Landlord. Landlord's consent may be
conditioned on Tenant's removing any such additions,
alterations or improvements upon the expiration of the
Term and restoring the Premises to the same condition as
on the date Tenant took possession. All work with
respect to any addition, alteration or improvement shall
be done in a good and workmanlike manner by properly
qualified and licensed personnel approved by Landlord,
and such work shall be diligently prosecuted to
completion. If any such work is performed by a
contractor selected by Tenant and approved by Landlord,
Tenant shall pay to Landlord, upon completion of any
such work, an administrative fee of five percent (5%) of
the cost of the work. If any such work is performed by
Landlord's contractor, Tenant shall pay to Landlord,
upon completion of any such work, an administrative fee
of fifteen percent (15%) of the cost of the work.
b. Tenant shall pay the costs of any work done on the
Premises pursuant to Section 12a, and shall keep the
Premises, Building and Project free and clear of liens
of any kind. Tenant shall indemnify, defend against and
keep Landlord free and harmless from all liability,
loss, damage, costs, attorneys' fees and any other
expense incurred on account of claims by any person
performing work or furnishing materials or supplies for
Tenant or any person claiming under Tenant.
Tenant shall keep Tenant's leasehold interest, and any
additions or improvements which are or become the
property of Landlord under this Lease, free and clear of
all attachment or judgment liens. Before the actual
commencement of any work for which a claim or lien may
be filed, Tenant shall give Landlord notice of the
intended commencement date a sufficient time before that
date to enable Landlord to post notices of non-
responsibility or any other notices which Landlord deems
necessary for the proper protection of Landlord's
interest in the Premises, Building or the Project, and
Landlord shall have the right to enter the Premises and
post such notices at any reasonable time.
c. Landlord may require, at Landlord's sole option, that
Tenant provide to Landlord, at Tenant's expense, a lien
and completion bond in an amount equal to at least one
and one-half (1 1/2) times the total estimated cost of
any additions, alterations or improvements to be made in
or to the Premises, to protect Landlord against any
liability for mechanic's and materialmen's liens and to
insure timely completion of the work. Nothing contained
in this Section 12c shall relieve Tenant of its
obligation under Section 12b to keep the Premises,
Building and Project free of all liens.
d. Unless their removal is required by Landlord as
provided in Section 12a, all additions, alterations and
improvements made to the Premises shall become the
property of Landlord and be surrendered with the
Premises upon the expiration of the Term; provided,
however, Tenant's equipment, machinery and trade
fixtures which can be removed without damage to the
Premises shall remain the property of Tenant and may be
removed, subject to the provisions of Section 13b.
13. LEASEHOLD IMPROVEMENTS; TENANT'S PROPERTY.
a. All fixtures, equipment, improvements and
appurtenances attached to or built into the Premises at
the commencement of or during the Term, whether or not
by or at the expense of Tenant ("Leasehold
Improvements"), shall be and remain a part of the
Premises, shall be the property of Landlord and shall
not be removed by Tenant, except as expressly provided
in Section 13b.
b. All movable partitions, business and trade fixtures,
machinery and equipment, communications equipment and
office equipment located in the Premises and acquired by
or for the account of Tenant, without expense to
Landlord, which can be removed without structural damage
to the Building, and all furniture, furnishings and
other articles of movable personal property owned by
Tenant and located in the Premises (collectively
"Tenant's Property') shall be and shall remain the
property of Tenant and may be removed by Tenant at any
time during the Term; provided that if any of Tenant's
Property is removed, Tenant shall promptly repair any
damage to the Premises or to the Building resulting from
such removal.
14. RULES AND REGULATIONS.
Tenant agrees to comply with (and cause its agents,
contractors, employees and invitees to comply with) the
rules and regulations attached hereto as Exhibit "D" and
with such reasonable modifications thereof and additions
thereto as Landlord may from time to time make. Landlord
shall not be responsible for any violation of said rules
and regulations by other tenants or occupants of the
Building or Project.
15. CERTAIN RIGHTS RESERVED BY LANDLORD.
Landlord reserves the following rights, exercisable
without liability to Tenant for (a) damage or injury to
property, person or business, (b) causing an actual or
constructive eviction from the Premises, or (c)
disturbing Tenant's use or possession of the Premises:
a. To name the Building and Project and to change the
name or street address of the Building or Project;
b. To install and maintain all signs on the exterior and
interior of the Building and Project; provided that
Tenant shall have the right to install a sign for its
business on the exterior of the Building subject to
Landlord's reasonable approval of plans for same;
c. To have pass keys to the Premises and all doors
within the Premises, excluding Tenant's vaults and
safes;
d. At any time during the Term, and on reasonable prior
notice to Tenant, to inspect the Premises, and to show
the Premises to any prospective purchaser or mortgagee
of the Project, or to any assignee of any mortgage on
the Project, or to others having an interest in the
Project or Landlord, and during the last six months of
the Term, to show the Premises to prospective tenants
thereof; and
e. To enter the Premises for the purpose of making
inspections, repairs, alterations, additions or
improvements to the Premises or the Building (including,
without limitation, checking, calibrating, adjusting or
balancing controls and other parts of the HVAC system),
and to take all steps as may be necessary or desirable
for the safety, protection, maintenance or preservation
of the Premises or the Building or Landlord's interest
therein, or as may be necessary or desirable for the
operation or improvement of the Building or in order to
comply with laws, orders or requirements of governmental
or other authority. Landlord agrees to use its best
efforts (except in an emergency) to minimize
interference with Tenant's business in the Premises in
the course of any such entry.
16. ASSIGNMENT AND SUBLETTING.
No assignment of this Lease or sublease of all or any
part of the Premises shall be permitted, except as
provided in this Article 16.
a. Tenant shall not, without the prior written consent
of Landlord, which consent shall not be unreasonably
withheld, assign or hypothecate this Lease or any
interest herein or sublet the Premises or any part
thereof, or permit the use of the Premises by any party
other than Tenant. Any of the foregoing acts without
such consent shall be void and shall, at the option of
Landlord, terminate this Lease. This Lease shall not,
nor shall any interest of Tenant herein, be assignable
by operation of law without the written consent of
Landlord.
b. If at any time or from time to time during the Term
Tenant desires to assign this Lease or sublet all or any
part of the Premises, Tenant shall give notice to
Landlord setting forth the terms and provisions of the
proposed assignment or sublease, and the identity of the
proposed assignee or subtenant. Tenant shall promptly
supply Landlord with such information concerning the
business background and financial condition of such
proposed assignee or subtenant as Landlord may
reasonably request. Landlord shall, within twenty (20)
days after Tenant's notice is given, either approve or,
in Landlord's reasonable judgement, disapprove the
proposed assignment or sublease. If Landlord approves
the proposed assignment or sublease, Tenant may assign
the Lease or sublet such space to such proposed assignee
or subtenant on the following further conditions:
(1) The assignment or sublease shall be on the same
terms set forth in the notice given to Landlord;
(2) No assignment or sublease shall be valid and no
assignee or sublessee shall take possession of the
Premises until an executed counterpart of such
assignment or sublease has been delivered to Landlord;
and
(3) No assignee or sublessee shall have a further right
to assign or sublet except on the terms herein
contained;
c. Notwithstanding the provisions of paragraphs a and b
above, Tenant may assign this Lease or sublet the
Premises or any portion thereof, without Landlord's
consent and without extending any recapture or
termination option to Landlord, to any corporation which
controls, s controlled by or is under common control
with Tenant, or to any corporation resulting from a
merger or consolidation with Tenant, or to any person or
entity which acquires all the assets of Tenant's
business as a going concern, provided that (i) the
assignee or sublessee assumes, in full, the obligations
of Tenant under this Lease, (ii) Tenant remains fully
liable under this Lease, and (iii) the use of the
Premises under Article 8 remains unchanged.
d. No subletting or assignment shall 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. The acceptance of Rent
by Landlord from any other person shall not be deemed to
be a waiver by Landlord of any provision hereof. Consent
to one assignment or subletting shall not be deemed
consent to any subsequent assignment or subletting. In
the event of default by an assignee or subtenant 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 assignee, subtenant or successor.
Landlord may consent to subsequent assignments of the
Lease or sublettings or amendments or modifications to
the 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 shall not relieve Tenant of liability under this
Lease.
17. HOLDING OVER.
If after expiration of the Term, Tenant remains in
possession of the Premises with Landlord's permission
(express or implied), Tenant shall become a tenant from
month to month only, upon all the provisions of this
Lease (except as to term and Base Rent), but the
"Monthly Installments of Base Rent" payable by Tenant
shall be increased to one hundred twenty-five percent
(125%) of the Monthly Installments of Base Rent payable
by Tenant at the expiration of the Term. Such monthly
rent shall be payable in advance on or before the first
day of each month. If either party desires to terminate
such month to month tenancy, It shall give the other
party not less than thirty (30) days advance written
notice of the date of termination.
18. SURRENDER OF PREMISES.
a. Tenant shall peaceably surrender the Premises to
Landlord on the Expiration Date, in broom-clean
condition and in as good condition as when Tenant took
possession, except for (i) reasonable wear and tear,
(ii) loss by fire or other casualty, and (iii) loss by
condemnation. Tenant shall, on Landlord's request,
remove Tenant's Property on or before the Expiration
Date and promptly repair all damage to the Premises or
Building caused by such removal.
b. If Tenant abandons or surrenders the Premises, or is
dispossessed by process of law or otherwise, any of
Tenant's Property left on the Premises shall be deemed
to be abandoned, and, at Landlord's option, title shall
pass to Landlord under this Lease as by a xxxx of sale.
If Landlord elects to remove all or any part of such
Tenant's Property, the cost of removal, including
repairing any damage to the Premises or Building caused
by such removal, shall be paid by Tenant. On the
Expiration Date Tenant shall surrender all keys to the
Premises.
19. DESTRUCTION OR DAMAGE.
a. If the Premises or the portion of the Building
necessary for Tenant's occupancy is damaged by fire,
earthquake, act of God, the elements of other casualty,
Landlord shall, subject to the provisions of this
Article, promptly repair the damage, if such repairs
can, in Landlord's reasonable opinion, be completed
within one hundred eighty (180) days. If Landlord
determines that repairs can be completed within one
hundred eighty (180) days, this Lease shall remain in
full force and effect, except that if such damage is not
the result of the negligence or willful misconduct of
Tenant or Tenant's agents, employees, contractors,
licensees or invitees, the Base Rent shall be abated to
the extent Tenant's use of the Premises is impaired,
commencing with the date of damage and continuing until
completion of the, repairs required of Landlord under
Section 19d
b. See addendum One - Additional Provisions.
c. See addendum One - Additional Provisions.
d. If the Premises are to be repaired under this
Article, Landlord shall repair at its cost any injury or
damage to the Building and Building Standard Work in the
Premises. Tenant shall be responsible at its sole cost
and expense for the repair, restoration and replacement
of any other Leasehold Improvements and Tenant's
Property. Landlord shall not be liable for any loss of
business, inconvenience or annoyance arising from any
repair or restoration of any portion of the Premises,
Building or Project as a result of any damage from fire
or other casualty.
e. This Lease shall be considered an express agreement
governing any case of damage to or destruction of the
Premises, Building or Project by fire or other casualty,
and any present or future law which purports to govern
the rights of Landlord and Tenant in such circumstances
in the absence of express agreement, shall have no
application.
20. EMINENT DOMAIN.
a. If the whole of the Building or Premises is lawfully
taken by condemnation or in any other manner for any
public or quasi-public purpose, this Lease shall
terminate as of the date of such taking, and Rent shall
be prorated to such date. If less than the whole of the
Building or Premises is so taken, this Lease shall be
unaffected by such taking, provided that (i) Tenant
shall have the right to terminate this Lease by notice
to Landlord given within ninety (90) days after the date
of such taking if twenty percent (20%) or more of the
Premises is taken and the remaining area of the Premises
is not reasonably sufficient for Tenant to continue
operation of its business, and (ii) Landlord shall have
the right to terminate this Lease by notice to Tenant
given within ninety (90) days alter the date of such
taking. If either Landlord or Tenant so elects to
terminate this Lease, the Lease shall terminate on the
thirtieth (30th) day after either such notice. The Rent
shall be prorated to the date of termination. If this
Lease continues in force upon such partial taking, the
Base Rent and Tenant's Proportionate Share shall be
equitably adjusted according to the remaining Rentable
Area of the Premises and Project.
b. In the event of any taking, partial or whole, all of the
proceeds of any award, judgment or settlement payable by
the condemning authority shall be the exclusive property of
Landlord, and Tenant hereby assigns to Landlord all of its
right, title and interest in any award, judgment or
settlement from the condemning authority. Tenant, however,
shall have the right, to the extent that Landlord's award
is not reduced or prejudiced, to claim from the condemning
authority (but not from Landlord) such compensation as may
be recoverable by Tenant in its own right for relocation
expenses and damage to Tenant's personal property.
c. In the event of a partial taking of the Premises which
does not result in a termination of this Lease, Landlord
shall restore the remaining portion of the Premises as
nearly as practicable to its condition prior to the
condemnation or taking, but only to the extent of Building
Standard Work. Tenant shall be responsible at its sole cost
and expense for the repair, restoration and replacement of
any other Leasehold Improvements and Tenant's Property.
21. INDEMNIFICATION.
a. Tenant shall indemnify and hold Landlord harmless
against and from liability and claims of any kind for loss
or damage to property of Tenant or any other person, or for
any injury to or death of any person, arising out of: (1)
Tenant's use and occupancy of the Premises, or any work,
activity or other things allowed or suffered by Tenant to
be done in, on or about the Premises; (2) any breach or
default by Tenant of any of Tenant's obligations under this
lease; or (3) any negligent or otherwise tortious act or
omission of Tenant, its agents, employees, invitees or
contractors. Tenant shall at Tenant's expense, and by
counsel satisfactory to Landlord, defend Landlord in any
action or proceeding arising from any such claim and shall
indemnify Landlord against all costs, attorneys' fees,
expert witness fees and any other expenses incurred in such
action or proceeding. As a material part of the
consideration for Landlord's execution of this Lease,
Tenant hereby assumes all risk of damage or injury to any
person or property in, on or about the Premises from any
cause.
b. Landlord shall not be liable for injury or damage which
may be sustained by the person or property of Tenant, its
employees, invitees or customers, or any other person in or
about the Premises, caused by or resulting from fire,
steam, electricity, gas, water or rain which may leak or
flow from or into any part of the Premises, or from the
breakage, leakage, obstruction or other defects of pipes,
sprinklers, wires, appliances, plumbing, air conditioning
or lighting fixtures, whether such damage or injury results
from conditions arising upon the Premises or upon other
portions of the Building or Project or from other sources.
Landlord shall not be liable for any damages arising from
any act or omission of any other tenant of the Building or
Project.
22. TENANT'S INSURANCE.
a. All insurance required to be carried by Tenant hereunder
shall be issued by responsible insurance companies
acceptable to Landlord and Landlord's lender and qualified
to do business in the State. Each policy shall name
Landlord, and at Landlord's request any mortgagee of
Landlord, as an additional insured, as their respective
interests may appear. Each policy shall contain (i) a cross-
liability endorsement, (ii) a provision that such policy
and the coverage evidenced thereby shall be primary and
noncontributing with respect to any policies carried by
Landlord and that any coverage carried by Landlord shall be
excess insurance, and (iii) a waiver by the insurer of any
right of subrogation against Landlord, its agents,
employees and representatives, which arises or might arise
by reason of any payment under such policy or by reason of
any act or omission of Landlord, its agents, employees or
representatives. A copy of each paid up policy
(authenticated by the in surer) or certificate of the
insurer evidencing the existence and amount of each
insurance policy required hereunder shall be delivered to
Landlord before the date Tenant is first given the right of
possession of the Premises, and thereafter within thirty
(30) days after any demand by Landlord therefor. Landlord
may, at anytime and from time to time, inspect and/or copy
any insurance policies required to be maintained by Tenant
hereunder. No such policy shall be cancellable except after
twenty (20) days written notice to Landlord and Landlord's
lender. Tenant shall furnish Landlord with renewals or
"binders" of any such policy at least ten (10) days prior
to the expiration thereof. Tenant agrees that if Tenant
does not take out and maintain such insurance, Landlord may
(but shall not be required to) procure said insurance on
Tenant's behalf and charge the Tenant the premiums together
with a twenty-five percent (25%) handling charge, payable
upon demand. Tenant shall have the right to provide such
insurance coverage pursuant to blanket policies obtained by
the Tenant, provided such blanket policies expressly afford
coverage to the Premises, Landlord, Landlord's mortgagee
and Tenant as required by this Lease.
b. Beginning on the date Tenant is given access to the
Premises for any purpose and continuing until expiration of
the Term, Tenant shall procure, pay for and maintain in
effect policies of casualty insurance covering (i) all
Leasehold Improvements (including any alterations,
additions or improvements as may be made by Tenant pursuant
to the provisions of Article 12 hereof), and (ii) trade
fixtures, merchandise and other personal property from time
to time in, on or about the Premises, in an amount not less
than one hundred percent (100%) of their actual replacement
cost from time to time, providing protection against any
peril included within the classification "Fire and Extended
Coverage" together with insurance against sprinkler damage,
vandalism and malicious mischief. The proceeds of such
insurance shall be used for the repair or replacement of
the property so insured. Upon termination of this Lease
following a casualty as set forth herein, the proceeds
under (i) shall be paid to Landlord, and the proceeds under
(ii) above shall be paid to Tenant.
c. Beginning on the date Tenant is given access to the
Premises for any purpose and continuing until expiration of
the Term, Tenant shall procure, pay for and maintain in
effect workers' compensation insurance as required by law
and comprehensive public liability and property damage
insurance with respect to the construction of improvements
on the Premises, the use, operation or condition of the
Premises and the operations of Tenant in, on or about the
Premises, providing personal injury and broad form property
damage coverage for not less than One Million Dollars
($1,000,000.00) combined single limit for bodily injury,
death and property damage liability.
d. Not less than every three (3) years during the Term,
Landlord and Tenant discuss whether to increase any or all
of Tenant's Insurance policy limits for all insurance to be
carried by Tenant as set forth in this Article. In the
event Landlord and Tenant cannot mutually agree upon
whether any such increases are necessary or, if so, the
amounts thereof, then Tenant agrees that all insurance
policy limits as set forth in this Article shall be
adjusted for increases in the cost of living in the same
manner as is set forth in Section 5.2 hereof for the
adjustment of the Base Rent.
23. WAIVER OF SUBROGATION.
Landlord and Tenant each hereby waive all rights of
recovery against the other and against the officers,
employees, agents and representatives of the other, on
account of loss by or damage to the waiving party of its
property or the property of others under its control, to
the extent that such loss or damage is insured against
under any fire and extended coverage insurance policy which
either may have in force at the time of the loss or damage.
Tenant shall, upon obtaining the policies of insurance
required under this Lease, give notice to its insurance
carrier or carriers that the foregoing mutual waiver of
subrogation is contained in this Lease.
24. SUBORDINATION AND ATTORNMENT.
Upon written request of Landlord, or any first mortgagee or
first deed of trust beneficiary of Landlord, or ground
lessor of Landlord, Tenant shall, in writing, subordinate
its rights under this Lease to the lien of any first
mortgage or first deed of trust, or to the interest of any
lease in which Landlord is lessee, and to all advances made
or hereafter to be made thereunder. However, before signing
any subordination agreement, Tenant shall have the right to
obtain from any lender or lessor or Landlord requesting
such subordination, an agreement in writing providing that,
as long as Tenant is not in default hereunder, this Lease
shall remain in effect for the full Term. The holder of any
security interest may, upon written notice to Tenant, elect
to have this Lease prior to its security interest
regardless of the time of the granting or recording of such
security interest.
In the event of any foreclosure sale, transfer in lieu of
foreclosure or termination of the lease in which Landlord
is lessee, Tenant shall attorn to the purchaser, transferee
or lessor as the case may be, and recognize that party as
Landlord under this Lease, provided such party acquires and
accepts the Premises subject to this Lease.
25. TENANT ESTOPPEL CERTIFICATES.
Within ten (10) days after written request from Landlord,
Tenant shall execute and deliver to Landlord or Landlord's
designee, a written statement certifying (a) that this
Lease is unmodified and in full force and effect, or is in
full force and effect as modified and stating the
modifications; (b) the amount of Base Rent and the date to
which Base Rent and additional rent have been paid in
advance; (c) the amount of any security deposited with
Landlord; and (d) that Landlord is not in default hereunder
or, if Landlord is claimed to be in default, stating the
nature of any claimed default. Any such statement may be
relied upon by a purchaser, assignee or lender. Tenant's
failure to execute and deliver such statement within the
time required shall at Landlord's election be a default,
under this Lease and shall also be conclusive upon Tenant
that: (1) this Lease is in full force and effect and has
not been modified except as represented by Landlord; (2)
there are no uncured defaults in Landlord's performance and
that Tenant has no right of offset, counter-claim or
deduction against Rent; and (3) not more than one month's
Rent has been paid in advance.
26. TRANSFER OF LANDLORD'S INTEREST
In the event of any sale or transfer by Landlord of the
Premises, Building or Project, and assignment of this Lease
by Landlord, Landlord shall be and is hereby entirely freed
and relieved of any and all liability and obligations
contained in or derived from this Lease arising out of any
act, occurrence or omission relating to the Premises,
Building, Project or Lease occurring after the consummation
of such sate or transfer, providing the purchaser shall
expressly assume all of the covenants and obligations of
Landlord under this Lease. If any security deposit or
prepaid rent has been paid by Tenant, Landlord may transfer
the security deposit or prepaid Rent to Landlord's
successor and upon such transfer, Landlord shall be
relieved of any and all further liability with respect
thereto.
27. DEFAULT.
27.1. Tenant's Default. The occurrence of any one or more
of the following events shall constitute a default and
breach of this Lease by Tenant:
a. Deleted.
b. If Tenant falls to pay any Rent or any other charges
required to be paid by Tenant under this Lease and such
failure continues for ten (10) days after such payment is
due and payable; or
c. If Tenant fails to promptly and fully perform any other
covenant, condition or agreement contained in this Lease
and such failure continues for thirty (30) days after
written notice thereof from Landlord to Tenant; or
d. If a writ of attachment or execution is levied on this
Lease or on any of Tenant's Property; or
e. If Tenant makes a general assignment for the benefit of
creditors, or provides for an arrangement, composition,
extension or adjustment with Its creditors; or
f. If Tenant files a voluntary petition for relief or if a
petition against Tenant in a proceeding under the federal
bankruptcy laws or other insolvency laws is filed and not
withdrawn or dismissed within forty-five (45) days
thereafter, or if under the provisions of any law providing
for reorganization or winding up of corporations, any court
of competent jurisdiction assumes jurisdiction, custody or
control of Tenant or any substantial part of its property
and such jurisdiction, custody or control remains in force
unrelinquished, unstayed or unterminated for a period of
forty-five (45) days; or
g. If in any proceeding or action in which Tenant is a
party, a trustee, receiver, agent or custodian is appointed
to take charge of the Premises or Tenant's Property (or has
the authority to do so) for the purpose of enforcing a lien
against the Premises or Tenant's Property; or
h. If Tenant is a partnership or consists of more than one
(1) person or entity, if any partner of the partnership or
other person or entity is involved in any of the acts or
events described in subparagraphs d through g above.
27.2. Remedies. In the event of Tenant's default hereunder,
then in addition to any other rights or remedies Landlord
may have under any law, Landlord shall have the right, at
Landlord's option, without further notice or demand of any
kind to do the following:
a. Terminate this Lease and Tenant's right to possession of
the Premises and reenter the Premises and take possession
thereof, and Tenant shall have no further claim to the
Premises or under this Lease; or
b. Continue this Lease in effect, reenter and occupy the
Premises for the account of Tenant, and collect any unpaid
Rent or other charges which have or thereafter become due
and payable; or
c. Reenter the Premises under the provisions of
subparagraph b, and thereafter elect to terminate this
Lease and Tenant's right to possession of the Premises.
If Landlord reenters the Premises under the provisions of
subparagraphs b or c above, Landlord shall not be deemed to
have terminated this Lease or the obligation of Tenant to
pay any Rent or other charges thereafter accruing, unless
Landlord notifies Tenant in writing of Landlord's election
to terminate this Lease. In the event of any reentry or
retaking of possession by Landlord, Landlord shall have the
right, but not the obligation, to remove all or any part of
Tenant's Property in the Premises and to place such
property in storage at a public warehouse at the expense
and risk of Tenant. If Landlord elects to relet the
Premises for the account of Tenant, the rent received by
Landlord from such reletting shall be applied as follows:
first, to the payment of any Indebtedness other than Rent
due hereunder from Tenant to Landlord; second, to the
payment of any costs of such reletting; third, to the
payment of the cost of any alterations or repairs to the
Premises; fourth to the payment of Rent due and unpaid
hereunder; and the balance, if any, shall be held by
Landlord and applied in payment of future Rent as it
becomes due. If that portion of rent received from the
reletting which is applied against the Rent due hereunder
is less than the amount of the Rent due, Tenant shall pay
the deficiency to Landlord promptly upon demand by
Landlord. Such deficiency shall be calculated and paid
monthly. Tenant shall also pay to Landlord, as soon as
determined, any costs and expenses incurred by Landlord in
connection with such reletting or in making alterations and
repairs to the Premises, which are not covered by the rent
received from the reletting.
Should Landlord elect to terminate this Lease under the
provisions of subparagraph a or c above, Landlord may
recover as damages from Tenant the following:
1. Past Rent. The worth at the time of the award of any
unpaid Rent which had been earned at the time of
termination; plus
2. Rent Prior to Award. The worth at the time of the 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 rental loss that Tenant proves
could have been reasonably avoided; plus
3. Rent After Award. The worth at the time of the award of
the amount by which the unpaid Rent for the balance of the
Term after the time of award exceeds the amount of the
rental loss that Tenant proves could be reasonably avoided;
plus
4. Proximately Caused Damages. Any other amount necessary
to compensate Landlord for all detriment proximately caused
by Tenant's failure to perform its obligations under this
Lease or which in the ordinary course of things would be
likely to result therefrom, including, but not limited to,
any costs or expenses (including attorneys' fees), incurred
by Landlord in (a) retaking possession of the Premises, (b)
maintaining the Premises after Tenant's default, (c)
preparing the Premises for reletting to a new tenant,
including any repairs or alterations, and (d) reletting the
Premises, including broker's commissions.
"The worth at the time of the award" as used in
subparagraphs 1 and 2 above, is to be computed by allowing
interest at the rate of ten percent (10%) per annum. "The
worth at the time of the award" as used in subparagraph 3
above, is to be computed by discounting the amount at the
discount rate of the Federal Reserve Bank situated nearest
to the Premises at the time of the award plus one percent
(1%).
The waiver by Landlord of any breach of any term, covenant
or condition of this Lease shall not be deemed a waiver
of such term, covenant or condition or of any subsequent
breach of the same or any other term, covenant or
condition. Acceptance of Rent by Landlord subsequent to any
breach hereof shall not be deemed a waiver of any preceding
breach other than the failure to pay the particular Rent so
accepted, regardless of Landlord's knowledge of any breach
at the time of such acceptance of Rent. Landlord shall not
be deemed to have waived any term, covenant or condition
unless Landlord gives Tenant written notice of such waiver.
27.3 Landlord's Default. If Landlord falls to perform any
covenant, condition or agreement contained in this Lease
within thirty (30) days after receipt of written notice
from Tenant specifying such default, or if such default
cannot reasonably be cured within thirty (30) days, if
Landlord falls to commence to cure within that thirty (30)
day period, then Landlord shall be liable to Tenant for any
damages sustained by Tenant as a result of Landlord's
breach; provided, however, it is expressly understood and
agreed that if Tenant obtains a money judgment against
Landlord resulting from any default or other claim arising
under this Lease, that judgment shall be satisfied only out
of the rents, issues, profits, and other income actually
received on account of Landlord's right, title and interest
in the Premises, Building or Project, and no other real,
personal or mixed property of Landlord (or of any of the
partners which comprise Landlord, if any) wherever
situated, shall be subject to levy to satisfy such
judgment. If, after notice to Landlord of default, Landlord
(or any first mortgagee or first deed of trust beneficiary
of Landlord) fails to cure the default as provided herein,
then Tenant shall have the right to cure that default at
Landlord's expense. Tenant shall not have the right to
terminate this Lease or to withhold, reduce or offset any
amount against any payments of Rent or any other charges
due and payable under this Lease except as otherwise
specifically provided herein.
28. BROKERAGE FEES.
Tenant warrants and represents that it has not dealt with
any real estate broker or agent in connection with this
Lease or its negotiation except those noted in Section 2.c.
Tenant shall indemnify and hold Landlord harmless from any
cost, expense or liability (including costs of suit and
reasonable attorneys' fees) for any compensation,
commission or fees claimed by any other real estate broker
or agent in connection with this Lease or its negotiation
by reason of any act of Tenant.
29. NOTICES.
All notices, approvals and demands permitted or required to
be given under this Lease shall be in writing and deemed
duly served or given if personally delivered or sent by
certified or registered U.S. mail, postage prepaid, and
addressed as follows: (a) if to Landlord, to Landlord's
Mailing Address and to the Building manager, and (b) if to
Tenant, to Tenant's Mailing Address; provided, however,
notices to Tenant shall be deemed duly served or given if
delivered or mailed to Tenant at the Premises. Landlord and
Tenant may from time to time by notice to the other
designate another place for receipt of future notices.
30. GOVERNMENT ENERGY OR UTILITY CONTROLS.
In the event of imposition of federal, state or local
government controls, rules, regulations, or restrictions on
the use or consumption of energy or other utilities during
the Term, both Landlord and Tenant shall be bound thereby.
In the event of a difference in interpretation by Landlord
and Tenant of any such controls, the interpretation of
Landlord shall prevail, and Landlord shall have the right
to enforce compliance therewith, including the right of
entry into the Premises to effect compliance.
32. QUIET ENJOYMENT.
Tenant, upon paying the Rent and performing all of its
obligations under this Lease, shall peaceably and quietly
enjoy the Premises, subject to the terms of this Lease and
to any mortgage, lease, or other agreement to which this
Lease may be subordinated.
33. OBSERVANCE OF LAW.
Tenant shall not use the Premises or permit anything to be
done in or about the Premises which will in any way
conflict with any law, statute, ordinance or governmental
rule or regulation now in force or which may hereafter be
enacted or promulgated. Tenant shall, at its sole cost and
expense, promptly comply with all laws, statutes,
ordinances and governmental rules, regulations or
requirements now in force or which may hereafter be in
force, and with the requirements of any board of fire
insurance underwriters or other similar bodies now or
hereafter constituted, relating to or affecting the
condition, use or occupancy of the Premises, excluding
structural changes not related to or affected by Tenant's
improvements or acts. The judgment of any court of
competent jurisdiction or the admission of Tenant in any
action against Tenant, whether Landlord is a party thereto
or not, that Tenant has violated any law, ordinance or
governmental rule, regulation or requirement, shall be
conclusive of that fact as between Landlord and Tenant.
34. FORCE MAJEURE.
Any prevention, delay or stoppage of work to be performed
by Landlord or Tenant which is due to strikes, labor
disputes, inability to obtain labor, materials, equipment
or reasonable substitutes therefor, acts of God,
governmental restrictions or regulations or controls,
judicial orders, enemy or hostile government actions, civil
commotion, fire or other casualty, or other causes beyond
the reasonable control of the party obligated to perform
hereunder, shall excuse performance of the work by that
party for a period equal to the duration of that
prevention, delay or stoppage. Nothing in this Article 34
shall excuse or delay Tenant1s obligation to pay Rent or
other charges under this Lease.
35. CURING TENANT'S DEFAULTS.
If Tenant defaults in the performance of any of its
obligations under this Lease, Landlord may (but shall not
be obligated to) without waiving such default, perform the
same for the account at the expense of Tenant. Tenant shall
pay Landlord all costs of such performance promptly upon
receipt of a xxxx therefor.
36. SIGN CONTROL.
Tenant shall not affix, paint, erect or inscribe any sign,
projection, awning, signal or advertisement of any kind to
any part of the Premises, Building or Project, including
without limitation, the inside or outside of windows or
doors, without the written consent of Landlord. Landlord
shall have the right to remove any signs or other matter,
installed without Landlord's permission, without being
liable to Tenant by reason of such removal, and to charge
the cost of removal to Tenant as additional rent hereunder,
payable within ten (10) days of written demand by Landlord.
37. MISCELLANEOUS.
a. Accord and Satisfaction; Allocation of Payments. No
payment by Tenant or receipt by Landlord of a lesser amount
than the Rent provided for in this Lease shall be deemed to
be other than on account of the earliest due Rent, nor
shall any endorsement or statement on any check or letter
accompanying any check or payment as Rent 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 the Rent or pursue any other remedy provided
for in this Lease. In connection with the foregoing,
Landlord shall have the absolute right in its sole
discretion to apply any payment received from Tenant to any
account or other payment of Tenant then not current and due
or delinquent.
b. Addenda. If any provision contained in an addendum to
this Lease is inconsistent with any other provision herein,
the provision contained in the addendum shall control,
unless otherwise provided in the addendum.
c. Attorneys' Fees. If any action or proceeding is brought
by either party against the other pertaining to or arising
out of this Lease, the finally prevailing party shall be
entitled to recover all costs and expenses, including
reasonable attorneys' fees, incurred on account of such
action or proceeding.
d. Captions, Articles and Section Numbers. The captions
appearing within the body of this Lease have been inserted
as a matter of convenience and for reference only and in no
way define, limit or enlarge the scope or meaning of this
Lease. All references to Article and Section numbers refer
to Articles and Sections in this Lease.
e. Changes Requested by Lender. Neither Landlord or Tenant
shall unreasonably withhold its consent to changes or
amendments to this Lease requested by the lender on
Landlord's interest, so long as these changes do not alter
the basic business terms of this Lease or otherwise
materially diminish any rights or materially increase any
obligations of the party from whom consent to such charge
or amendment is requested.
f. Choice of Law. This Lease shall be construed and
enforced in accordance with the laws of the State.
g. Consent. Notwithstanding anything contained in this
Lease to the contrary, Tenant shall have no claim, and
hereby waives the right to any claim against Landlord for
money damages by reason of any refusal, withholding or
delaying by Landlord of any consent, approval or statement
of satisfaction, and in such event, Tenant's only remedies
therefor shall be an action for specific performance,
injunction or declaratory judgment to enforce any right to
such consent, etc.
h. Corporate Authority. If Tenant is a corporation, each
individual signing this Lease on behalf of Tenant,
represents and warrants that he is duly authorized to
execute and deliver this Lease on behalf of the corporation
and that this Lease is binding in accordance with its
terms. Tenant shall, at Landlord's request, deliver a
certified copy of a resolution of its board of directors
authorizing such execution.
i. Counterparts. This Lease may be executed in multiple
counterparts, all of which shall constitute one and the
same Lease.
j. Execution of Lease; No Option. The submission of this
Lease to Tenant shall be for examination purposes only, and
does not and shall not constitute a reservation of or
option for Tenant to lease or otherwise create any interest
of Tenant in the Premises or any other premises within the
Building or Project. Execution of this Lease by Tenant and
its return to Landlord shall not be binding on Landlord
notwithstanding any time interval until Landlord has in
fact signed and delivered this Lease to Tenant.
k. Furnishing of Financial Statements; Tenant's
Representations. In order to induce Landlord to enter into
this Lease Tenant agrees that it shall promptly furnish
Landlord, from time to time, upon Landlord's written
request, with financial statements reflecting Tenant's
current financial condition. Tenant represents and warrants
that all financial statements, records and information
furnished by Tenant to Landlord in connection with this
Lease are true, correct and complete in all material
respects.
l. Further Assurances.. The parties agree to promptly sign
all documents reasonably requested to give effect to the
provisions of this Lease.
m. Mortgagee Protection. Tenant agrees to send by certified
or registered mail to any first mortgagee or first deed of
trust beneficiary of Landlord whose address has been
furnished to Tenant, a copy of any notice of default served
by Tenant on Landlord. If Landlord fails to cure such
default within the time provided for in this Lease. such
mortgagee or beneficiary shall have an additional thirty
(30) days to cure such default; provided that if such
default cannot reasonably be cured within that thirty (30)
day period, then such mortgagee or beneficiary shall have
such additional time to cure the default as is reasonably
necessary under the circumstances.
n. Prior Agreements; Amendments. This Lease contains all of
the agreements of the parties with respect to any matter
covered or mentioned in this Lease, and no prior agreement
or understanding pertaining to any such matter shall be
effective for any purpose. No provisions of this Lease may
be amended or added to except by an agreement in writing
signed by the parties or their respective successors in
interest.
o. Recording. Tenant shall not record this Lease without
the prior written consent of Landlord. Tenant, upon the
request of Landlord, shall execute and acknowledge a "short
form" memorandum of this Lease for recording purposes.
p. Severability. A final determination by a court of
competent jurisdiction that any provision of this Lease is
invalid shall not affect the validity of any other
provision, and any provision so determined to be invalid
shall, to the extent possible, be construed to accomplish
its intended effect.
q. Successors and Assigns. This Lease shall apply to and
bind the heirs, personal representatives. and permitted
successors and assigns of the parties.
r. Time of the Essence. Time is of the essence of this
Lease.
s. Waiver. No delay or omission in the exercise of any
right or remedy of Landlord upon any default by Tenant
shall impair such right or remedy or be construed as a
waiver of such default.
t. Compliance. The parties hereto agree to comply with all
applicable federal, state and local laws, regulations,
codes, ordinances and administrative orders having
jurisdiction over the parties, property or the subject
matter of this Agreement, including, but not limited to,
the 1964 Civil Rights Act and all amendments thereto, the
Foreign Investment in Real Property Tax Act, the
Comprehensive Environmental Response Compensation and
Liability Act, and the Americans With Disabilities Act.
The receipt and acceptance by Landlord of delinquent Rent
shall not constitute a waiver of any other default; it
shall constitute only a waiver of timely payment for the
particular Rent payment involved.
No act or conduct of Landlord, including, without
limitation the acceptance of keys to the Premises, shall
constitute an acceptance of the surrender of the Premises
by Tenant before the expiration of the Term. Only a written
notice from Landlord to Tenant shall constitute acceptance
of the surrender of the Premises and accomplish a
termination of the Lease.
Landlord's consent to or approval of any act by Tenant
requiring Landlord's consent or approval shall not be
deemed to waive or render unnecessary Landlord's consent to
or approval of any subsequent act by Tenant.
Any waiver by Landlord of any default must be in writing
and shall not be a waiver of any other default concerning
the same or any other provision of the Lease.
The parties hereto have executed this Lease as of the dates
set forth below.
Date: March 10, 1998 Date: March 10,1998
Landlord: Airplaza Co., Inc. Tenant: Air Methods Corporation International
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxx X. Xxxx
Title: President Title: CFO
This Lease between AirPlaza Co., Inc. a Colorado
corporation ("Landlord"), and Air Methods Corporation
International, a Colorado corporation ("Tenant"), is dated
March 2, 1998.
1. LEASE OF PREMISES.
In consideration of the Rent (as defined at Section 5.4) and
the provisions this Lease1 Landlord leases to Tenant and
Tenant leases from Landlord the Premises shown by diagonal
lines on the floor plan attached hereto as Exhibit "A" and
further described at Section 21. The Premises are located
within the Building and Project described in Section 2m.
Tenant shall have the non-exclusive right (unless otherwise
provided herein) in common with Landlord, other tenants,
subtenants and invitees, to use of the Common Areas (as
defined at Section 2e).
2. DEFINITIONS
As used in this Lease, the following terms shall have the
following meanings:
a. Base Rent (initial): $51,910.80 per year.
b. Base Year: The calendar year of 1998
c. Broker(s)
Landlord's: None
Tenant's: Xxxxxxx & Wakefield of Colorado, Inc.
d. Commencement Date: The earlier of (1) the date that is
ten (10) days following the date of issuance by Arapahoe
County, Colorado, of a Certificate of Occupancy for the
Premises or (2) the date of occupancy of the Premises by
Tenant.
e. Common Areas: the building lobbies, common corridors and
hallways, restrooms, garage and parking areas, stairways,
elevators and other generally understood public or common
areas. Landlord shall have the right to regulate or
restrict the use of the Common Areas.
f. Expense Stop: (fill in if applicable): $ N/A
g. Expiration Date: March 31, 2003, unless otherwise sooner
terminated in accordance with the provisions of this Lease.
h. Index (Section 5.2): United States Department of Labor, Bureau of
Labor Statistics Consumer Price Index for All Urban Consumers, U.S.
City Average, Subgroup "All Items" (1967=100).
i. Landlord's Mailing Address: 0000 XXX Xxxxxxxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxx 00000
Tenant's Mailing Address: 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxx 00000
j. Monthly Installments of Base Rent (initial): $4,325.90
per month.
k. Parking: Tenant shall be permitted, at no additional
charge, to park 12 cars on a non-exclusive basis in the
area(s) designated by Landlord for parking. Tenant shall
abide by any and all parking regulations and rules
established from time to time by Landlord or Landlord's
parking operator. Landlord reserves the right to separately
charge Tenant's guests and visitors for parking.
l. Premises: that portion of the Building containing
approximately 3,620 square feet of Rentable Area, shown by
diagonal lines on Exhibit "A" located on the first (1st)
floor of the Building and known as Suite 190.
m. Project: the building of which the Premises are a part
(the "Building") and any other buildings or improvements on
the real property (the "Property") located at 7211 - 0000
Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000 and further
described at Exhibit "B" The Project is known as Airplaza 22.
n. Rentable Area: as to both the Premises and the Project, the
respective measurements of floor area as may from time to time be
subject to lease by Tenant and all tenants of the Project,
respectively, as determined by Landlord and applied on a consistent
basis throughout the Project.
o. Security Deposit (Section 7): $ zero (0)
p. State: the State of Colorado
q. Tenant's First Adjustment Date (Section 5.2): April 1, 1999.
r. Tenant's Proportionate Share: See Addendum One, Additional Provisions.
s. Tenant's Use Clause (Article 8): general office purposes
t. Term: the period commencing on the Commencement Date and
expiring at midnight on the Expiration Date.
3. EXHIBITS AND ADDENDA.
The exhibits and addenda listed below (unless lined out)
are Incorporated by reference in this Lease:
a. Exhibit "A" - Floor Plan showing the Premises
b. Exhibit "B" - Site Plan of the Project
c. Exhibit "C" - Work Agreement
d. Exhibit "D" - Rules and Regulations
e. Exhibit "E" - Deleted
f. Addenda: Addendum One - Additional Provisions.
4. DELIVERY OF POSSESSION.
If for any reason Landlord does not deliver possession of
the Premises to Tenant on the Commencement Date, Landlord
shall not be subject to any liability for such failure, the
Expiration Date shall not change and the validity of this
Lease shall not be impaired, but Rent shall be abated until
delivery of possession. "Delivery of possession" shall be
deemed to occur on the date Landlord completes Landlord's
Work as defined in Exhibit "C." If Landlord permits Tenant
to enter into possession of the Premises before the
Commencement Date, such possession shall be subject to the
provisions of this Lease, including, without limitation,
the payment of Rent.
5. RENT.
5.1. Payment of Base Rent. Tenant agrees to pay the Base
Rent for the Premises. Monthly Installments of Base Rent
shall be payable in advance on the first day of each
calendar month of the Term. If the Term begins (or ends) on
other than the first (or last) day of a calendar month, the
Base Rent for the partial month shall be prorated on a per
diem basis. Tenant shall pay Landlord the first Monthly
Installment of Base Rent when Tenant executes the Lease.
5.2 Adjusted Base Rent.
a. The Base Rent (and the corresponding Monthly
Installments of Base Rent) set forth at Section 2a shall
be adjusted annually (the "Adjustment Date"), commencing
on Tenant's First Adjustment Date. Adjustments, if any,
shall be based upon increases (if any) in the Index. The
Index in publication three (3) months before the
Commencement Date shall be the "Base Index." The Index
in publication three (3) months before each Adjustment
Date shall be the "Comparison Index." As of each
Adjustment Date, the Base Rent payable during the
ensuing twelve-month period shall be determined by
increasing the initial Base Rent by a percentage equal
to the percentage increase, if any, in the Comparison
Index over the Base Index. If the Comparison Index for
any Adjustment Date is equal to or less than the
Comparison Index for the preceding Adjustment Date (or
the Base Index, in the case of First Adjustment Date),
the Base Rent for the ensuing twelve-month period shall
remain the amount of Base Rent payable during the
preceding twelve-month period. When the Base Rent
payable as of each Adjustment Date is determined,
Landlord shall promptly give Tenant written notice of
such adjusted Base Rent and the manner in which it was
computed. The Base Rent as so adjusted from time to time
shall be the "Base Rent" for all purposes under this
Lease.
b. If at any Adjustment Date the Index no longer
exists in the form described in this Lease, Landlord may
substitute any substantially equivalent official index
published by the Bureau of Labor Statistics or its
successor. Landlord shall use any appropriate conversion
factors to accomplish such substitution. The substitute
index shall then become the "Index" hereunder. See
Addendum One - Additional Provisions.
5.3 Project Operating Costs.
a. In order that the Rent payable during the Term
reflect any increase in Project Operating Costs, Tenant
agrees to pay to Landlord as Rent, Tenant's
Proportionate Share of all increases in costs, expenses
and obligations attributable to the Project and its
operation, all as provided below.
b. If during any calendar year during the Term,
Project Operating Costs exceed the Project Operating
Costs for the Base Year, Tenant shall pay to Landlord,
in addition to the Base Rent and all other payments due
under this Lease. an amount equal to Tenant's
Proportionate Share of such excess Project Operating
Costs in accordance with the provisions of this Section
5.3b.
(1) The term "Project Operating Costs" shall include all
those items described in the following subparagraphs
(a) and (b).
(a)All taxes, assessments, water and sewer charges
and other similar governmental charges levied on or
attributable to the Building or Project or their
operation, including without limitation, (i) real
property taxes or assessments levied or assessed
against the Building or Project, (ii) assessments or
charges levied or assessed against the Building or
Project by any redevelopment agency, (iii) any tax
measured by gross rentals received from the leasing
of the Premises, Building or Project, excluding any
net income, franchise, capital stock, estate or
inheritance taxes imposed by the State or federal
government or their agencies, branches or
departments; provided that if at any time during the
Term any governmental entity levies, assesses or
imposes on Landlord any (1) general or special, ad
valorem or specific, excise, capital levy or other
tax, assessment, levy or charge directly on the Rent
received under this Lease or on the rent received
under any other leases of space in the Building or
Project, or (2) any license fee, excise or franchise
tax, assessment, levy or charge measured by or
based, in whole or in part, upon such rent, or (3)
any transfer, transaction, or similar tax,
assessment, levy or charge based directly or
indirectly upon the transaction represented by this
Lease or such other leases, or (4) any occupancy,
use, per capita or other tax, assessment, levy or
charge based directly or indirectly upon the use or
occupancy of the Premises or other premises within
the Building or Project, then any such taxes,
assessments, levies and charges shall be deemed to
be included in the term Project Operating Costs. If
at any time during the Term the assessed valuation
of, or taxes on, the Project are not based on a
completed Project having at least eighty-five
percent (85%) of the Rentable Area occupied, then
the "taxes" component of Project Operating Costs
shall be adjusted by Landlord to reasonably
approximate the taxes which would have been payable
if the Project were completed and at least eighty-
five percent (85%) occupied.
(b)Operating costs incurred by Landlord in
maintaining and operating the Building and Project,
including without limitation the following: costs of
(1) utilities; (2) supplies; (3) insurance
(including public liability, property damage,
earthquake, and fire and extended coverage insurance
for the full replacement cost of the Building and
Project as required by Landlord or its lenders for
the Project; (4) services of independent
contractors; (5) compensation (including employment
taxes and fringe benefits) of all persons who
perform duties connected with the operation,
maintenance, repair or overhaul of the Building or
Project, and equipment, improvements and facilities
located within the Project, including without
limitation engineers, janitors, painters, floor
waxers, window washers, security and parking
personnel and gardeners (but excluding persons
performing services not uniformly available to or
performed for substantially all Building or Project
tenants): (6) operation and maintenance of a room
for delivery and distribution of mail to tenants of
the Building or Project as required by the U.S.
Postal Service (including, without limitation, an
amount equal to the fair market rental value of the
mail room premises); (7) management of the Building
or Project, whether managed by Landlord or an
Independent contractor (including, without
limitation, an amount equal to the fair market value
of any on-site manager's office provided that such
management costs for the Project shall not exceed
five percent (5%) of Landlord's gross income from
the Project); (8) rental expenses for (or a
reasonable depreciation allowance on) personal
property used in the maintenance, operation or
repair of the Building or Project; (9) costs,
expenditures or charges (whether capitalized or not)
required by any governmental or quasi-governmental
authority; (10) amortization of capital expenses
(including financing costs) (i) required by a
governmental entity for energy conservation or life
safety purposes, or (ii) made by Landlord to reduce
Project Operating Costs; and (ii) any other costs or
expenses incurred by Landlord under this Lease and
not otherwise reimbursed by tenants of the Project.
If at any time during the Term, less than eighty-
five percent (85%) of the Rentable Area of the
Project is occupied, the "operating costs" component
of Project Operating Costs shall be adjusted by
Landlord to reasonably approximate the operating
costs which would have been incurred if the Project
had been at least eighty-five percent (85%)
occupied.
(2) Tenant's Proportionate Share of Project Operating
Costs shall be payable by Tenant to Landlord as
follows:
(a)Beginning with the calendar year following the
Base Year and for each calendar year thereafter
("Comparison Year"), Tenant shall pay Landlord an
amount equal to Tenant's Proportionate Share of the
Project Operating Costs incurred by Landlord in the
Comparison Year which exceeds the total amount of
Project Operating Costs payable by Landlord for the
Base Year. This excess is referred to as the "Excess
Expenses."
(b)To provide for current payments of Excess
Expenses, Tenant shall, at Landlord's request, pay
as additional rent during each Comparison Year, an
amount equal to Tenant's Proportionate Share of the
Excess Expenses payable during such Comparison Year,
as estimated by Landlord from time to time. Such
payments shall be made in monthly installments,
commencing on the first day of the month following
the month in which Landlord notifies Tenant of the
amount it is to pay hereunder and continuing until
the first day of the month following the month in
which Landlord gives Tenant a new notice of
estimated Excess Expenses. It is the intention
hereunder to estimate from time to time the amount
of the Excess Expenses for each Comparison Year and
Tenant's Proportionate Share thereof, and then to
make an adjustment in the following year based on
the actual Excess Expenses Incurred for that
Comparison Year.
(c)On or before April 1 of each Comparison Year
after the first Comparison Year (or as soon
thereafter as is practical), Landlord shall deliver
to Tenant a statement setting forth Tenant's
Proportionate Share of the Excess Expenses for the
preceding Comparison Year. If Tenant's Proportionate
Share of the actual Excess Expenses for the previous
Comparison Year exceeds the total of the estimated
monthly payments made by Tenant for such year,
Tenant shall pay Landlord the amount of the
deficiency within ten (10) days of the receipt of
the statement. If such total exceeds Tenant's
Proportionate Share of the actual Excess Expenses
for such Comparison Year, then Landlord shall credit
against Tenant's next ensuing monthly installment(s)
of additional rent an amount equal to the difference
until the credit is exhausted. If a credit is due
from Landlord on the Expiration Date, Landlord shall
pay Tenant the amount of the credit. The obligations
of Tenant and Landlord to make payments required
under this Section 5.3 shall survive the Expiration
Date.
(d)Tenant's Proportionate Share of Excess Expenses
in any Comparison Year having less than 365 days
shall be appropriately prorated.
(e)If any dispute arises as to the amount of any
additional rent due hereunder, Tenant shall have the
right after reasonable notice and at reasonable
times to inspect Landlord's accounting records at
Landlord's accounting office and, if after such
inspection Tenant still disputes the amount of
additional rent owed, a certification as to the
proper amount shall be made by Landlord's certified
public accountant, which certification shall be
final and conclusive. Tenant agrees to pay the cost
of such certification unless it is determined that
Landlord's original statement overstated Project
Operating Costs by more than five percent (5%).
(f)If this Lease sets forth an Expense Stop at
Section 2f, then during the Term, Tenant shall be
liable for Tenant's
Proportionate Share of any actual Project Operating
Costs which exceed the amount of the Expense Stop.
Tenant shall
make current payments of such excess costs during
the Term in the same manner as is provided for
payment of Excess
Expenses under the applicable provisions of Section
5.3b(2)(b) and (c) above.
5.4 Definition of Rent. All costs and expenses which
Tenant assumes or agrees to pay to Landlord under this
Lease shall be deemed additional rent (which, together with
the Base Rent is sometimes referred to as the "Rent"). The
Rent shall be paid to the Building manager (or other
person) and at such place, as Landlord may from time to
time designate in writing, without any prior demand
therefor and without deduction or offset, in lawful money
of the United States of America.
5.5 Rent Control. If the amount of Rent or any other
payment due under this Lease violates the terms of any
governmental restrictions on such Rent or payment, then the
Rent or payment due during the period of such restrictions
shall be the maximum amount allowable under those
restrictions. Upon termination of the restrictions,
Landlord shall, to the extent it is legally permitted,
recover from Tenant the difference between the amounts
received during the period of the restrictions and the
amounts Landlord would have received had there been no
restrictions.
5.6 Taxes Payable by Tenant. In addition to the Rent and
any other charges to be paid by Tenant hereunder, Tenant
shall reimburse Landlord upon demand for any and all taxes
payable by Landlord (other than net income taxes) which are
not other wise reimbursable under this Lease, whether or
not now customary or within the contemplation of the
parties, where such taxes are upon, measured by or
reasonably attributable to (a) the cost or value of
Tenant's equipment, furniture, fixtures and other personal
property located in the Premises, or the cost or value of
any leasehold improvements made in or to the Premises by or
for Tenant, other than Building Standard Work made by
Landlord, regardless of whether title to such improvements
is held by Tenant or Landlord; (b) the gross or net Rent
payable under this Lease, including, without limitation,
any rental or gross receipts tax levied by any taxing
authority with respect to the receipt of the Rent
hereunder; (c) the possession, leasing, operation,
management, maintenance, alteration, repair, use or
occupancy by Tenant of the Premises or any portion thereof;
or (d) this transaction or any document to which Tenant is
a party creating or transferring an interest or an estate
in the Premises. If it becomes unlawful for Tenant to
reimburse Landlord for any costs as required under this
Lease, the Base Rent shall be revised to net Landlord the
same net Rent after imposition of any lax or other charge
upon Landlord as would have been payable to Landlord but
for the reimbursement being unlawful.
6. INTEREST AND LATE CHARGES.
If Tenant falls to pay when due any Rent or other amounts
or charges which Tenant is obligated to pay under the terms
of this Lease, the unpaid amounts shall bear interest at
the maximum rate then allowed by law. Tenant acknowledges
that the late payment of any Monthly Installment of Base
Rent will cause Landlord to lose the use of that money and
incur costs and expenses not contemplated under this Lease,
including without limitation, administrative and collection
costs and processing and accounting expenses, the exact
amount of which is extremely difficult to ascertain.
Therefore, in addition to interest, if any such installment
is not received by Landlord within ten (10) days from the
date it is due, Tenant shall pay Landlord a late charge
equal to 5% of such installment. Landlord and Tenant agree
that this late charge represents a reasonable estimate of
such costs and expenses and is fair compensation to
Landlord for the loss suffered from such nonpayment by
Tenant. Acceptance of any interest or late charge shall not
constitute a waiver of Tenant's default with respect to
such nonpayment by Tenant nor prevent Landlord from
exercising any other rights or remedies available to
Landlord under this Lease.
8. TENANT'S USE OF THE PREMISES.
Tenant shall use the Premises solely for the purposes set
forth in Tenant's Use Clause. Tenant shall not use or
occupy the Premises in violation of law or any covenant,
condition or restriction affecting the Building or Project
or the certificate of occupancy issued for the Building or
Project, and shall, upon notice from Landlord, immediately
discontinue any use of the Premises which is declared by
any governmental authority having jurisdiction to be a
violation of law or the certificate of occupancy. Tenant,
at Tenant's own cost and expense, shall comply with all
laws, ordinances, regulations, rules and/or any directions
of any governmental agencies or authorities having
jurisdiction which shall, by reason of the nature of
Tenant's use or occupancy of the Premises, impose any duty
upon Tenant or Landlord with respect to the Premises or its
use or occupation. A judgment of any court of competent
jurisdiction or the admission by Tenant in any action or
proceeding against Tenant that Tenant has violated any such
laws, ordinances, regulations, rules and/or directions in
the use of the Premises shall be deemed to be a conclusive
determination of that fact as between Landlord and Tenant.
Tenant shall not do or permit to be done anything which
will invalidate or increase the cost of any fire, extended
coverage or other insurance policy covering the Building or
Project and/or property located therein, and shall comply
with all rules, orders, regulations, requirements and
recommendations of the Insurance Services Office or any
other organization performing a similar function. Tenant
shall promptly upon demand reimburse Landlord for any
additional premium charged for such policy by reason of
Tenant's failure to comply with the provisions of this
Article. Tenant shall not do or permit anything to be done
in or about the Premises which will in any way obstruct or
interfere with the rights of other tenants or occupants of
the Building or Project, or injure or annoy them, or use or
allow the Premises to be used for any improper, immoral,
unlawful or objectionable purpose, nor shall Tenant cause,
maintain or permit any nuisance in, on or about the
Premises. Tenant shall not commit or suffer to be committed
any waste in or upon the Premises.
9. SERVICES AND UTILITIES.
Provided that Tenant is not in default hereunder, Landlord
agrees to furnish to the Premises during generally
recognized business days, and during hours determined by
Landlord in its sole discretion, and subject to the Rules
and Regulations of the Building or Project, electricity for
normal desk top office equipment and normal copying
equipment, and heating, ventilation and air conditioning
("HVAC") as required in Landlord's judgment for the
comfortable use and occupancy of the Premises. If Tenant
desires HVAC at any other time, Landlord shall use
reasonable efforts to furnish such service upon reasonable
notice from Tenant and Tenant shall pay Landlord's charges
therefor on demand. Landlord shall also maintain and keep
lighted the common stairs, common entries and restrooms in
the Building. Landlord shall not be in default hereunder or
be liable for any damages directly or indirectly resulting
from, nor shall the Rent be abated by reason of (i) the
installation, use or interruption of use of any equipment
in connection with the furnishing of any of the foregoing
services, (ii) failure to furnish or delay in furnishing
any such services where such failure or delay is caused by
accident or any condition or event beyond the reasonable
control of Landlord, or by the making of necessary repairs
or improvements to the Premises, Building or Project, or
(iii) the limitation, curtailment or rationing of, or
restrictions on, use of water, electricity, gas or any
other form of energy serving the Premises, Building or
Project. Landlord shall not be liable under any
circumstances for a loss of or injury to property or
business, however occurring, through or in connection with
or incidental to failure to furnish any such services. If
Tenant uses heat generating machines or equipment in the
Premises which affect the temperature otherwise maintained
by the HVAC system, Landlord reserves the right to install
supplementary air conditioning units in the Premises and
the cost thereof, including the cost of installation,
operation and maintenance thereof, shall be paid by Tenant
to Landlord upon demand by Landlord.
Tenant shall not, without the written consent of Landlord,
use any apparatus or device in the Premises, including
without limitation, electronic data processing machines,
punch card machines or machines using in excess of 120
volts, which consumes more electricity than is usually
furnished or supplied for the use of premises as general
office space, as determined by Landlord. Tenant shall not
connect any apparatus with electric current except through
existing electrical outlets in the Premises. Tenant shall
not consume water or electric current in excess of that
usually furnished or supplied for the use of premises as
general office space (as determined by Landlord), without
first procuring the written consent of Landlord, which
Landlord may refuse, and in the event of consent, Landlord
may have installed a water meter or electrical current
meter in the Premises to measure the amount of water or
electric current consumed. The cost of any such meter and
of its installation, maintenance and repair shall be paid
for by the Tenant and Tenant agrees to pay to Landlord
promptly upon demand for all such water and electric
current consumed as shown by said meters, at the rates
charged for such services by the local public utility plus
any additional expense incurred in keeping account of the
water and electric current so consumed. If a separate meter
is not installed, the excess cost for such water and
electric current shall be established by an estimate made
by a utility company or electrical engineer hired by
Landlord at Tenant's expense.
Nothing contained in this Article shall restrict Landlord's
right to require at any time separate metering of utilities
furnished to the Premises. In the event utilities are
separately metered, Tenant shall pay promptly upon demand
for all utilities consumed at utility rates charged by the
local public utility plus any additional expense incurred
by Landlord in keeping account of the utilities so
consumed. Tenant shall be responsible for the maintenance
and repair of any such meters at its sole cost.
Landlord shall furnish elevator service, lighting
replacement for building standard lights, restroom
supplies, window washing and janitor services in a manner
that such services are customarily furnished to comparable
office buildings in the area.
10. CONDITION OF THE PREMISES.
Tenant's taking possession of the Premises shall be deemed
conclusive evidence that as of the date of taking
possession the Premises are in good order and satisfactory
condition, except for such matters as to which Tenant gave
Landlord notice on or before the Commencement Date. No
promise of Landlord to alter, remodel, repair or improve
the Premises, the Building or the Project and no
representation, express or implied, respecting any matter
or thing relating to the Premises, Building, Project or
this Lease (including, without limitation, the condition of
the Premises, the Building or the Project) have been made
to Tenant by Landlord or its Broker or Sales Agent, other
than as may be contained herein or in a separate exhibit or
addendum signed by Landlord and Tenant.
11. CONSTRUCTION, REPAIRS AND MAINTENANCE.
a. Landlord's Obligations. Landlord shall perform
Landlord's Work to the Premises as described in Exhibit
"C." Landlord shall maintain in good order, condition and
repair the Building and all other portions of the Premises
not the obligation of Tenant or of any other tenant in the
Building.
b. Tenant's Obligations.
(1) Tenant shall perform Tenant's Work to the Premises
as described in Exhibit "C."
(2) Tenant at Tenant's sole expense shall, except for
services furnished by Landlord pursuant to Article 9
hereof, maintain the Premises in good order, condition
and repair, including the interior surfaces of the
ceilings, walls and floors, all doors, all interior
windows, all plumbing, pipes and fixtures, electrical
wiring, switches and fixtures, Building Standard
furnishings and special items and equipment installed by
or at the expense of Tenant.
(3) Tenant shall be responsible for all repairs and
alterations in and to the Premises, Building and Project
and the facilities and systems thereof, the need for
which arises out of (i) Tenant's use or occupancy of the
Premises, (ii) the installation, removal, use or
operation of Tenant's Property (as defined In Article
13) in the Premises, (iii) the moving of Tenant's
Property into or out of the Building, or (iv) the act,
omission, misuse or negligence of Tenant, its agents,
contractors, employees or invitees.
(4) If Tenant fails to maintain the premises in good order,
condition and repair, Landlord shall give Tenant notice to do
such acts as are reasonably required to so maintain the
Premises. If Tenant fails to promptly commence such work
and diligently prosecute it to completion, then Landlord
shall have the right to do such acts and expend such
funds at the expense of Tenant as are reasonably
required to perform such work. Any amount so expended by
Landlord shall be paid by Tenant promptly after demand
with interest at the prime commercial rate then being
charged Norwest Bank, Denver plus two percent (2%) per
annum, from the date of such work, but not to exceed the
maximum rate then allowed by law. Landlord shall have no
liability to Tenant for any damage, inconvenience, or
interference with the use of the Premises by Tenant as a
result of performing any such work.
c. Compliance with Law. Landlord and Tenant shall each do
all acts required to comply with all applicable laws,
ordinances, and rules of any public authority relating to
their respective maintenance obligations as set forth
herein.
d. Waiver by Tenant. Tenant expressly waives the benefits
of any statute now or hereafter in effect which would
otherwise afford the Tenant the right to make repairs at
Landlord's expense or to terminate this Lease because of
Landlord's failure to keep the Premises in good order,
condition and repair.
e. Load and Equipment Limits. Tenant shall not place a
load upon any floor of the Premises which exceeds the load
per square foot which such floor was designed to carry, as
determined by Landlord or Landlord's structural engineer.
The cost of any such determination made by Landlord's
structural engineer shall be paid for by Tenant upon
demand. Tenant shall not install business machines or
mechanical equipment which cause noise or vibration to such
a degree as to be objectionable to Landlord or other
Building tenants.
f. Except as otherwise expressly provided in this Lease,
Landlord shall have no liability to Tenant nor shall
Tenant's obligations under this Lease be reduced or abated
in any manner whatsoever by reason of any inconvenience,
annoyance, interruption or injury to business arising from
Landlord's making any repairs or changes which Landlord is
required or permitted by this Lease or by any other
tenant's lease or required by law to make in or to any
portion of the Project, Building or the Premises. Landlord
shall nevertheless use reasonable efforts to minimize any
interference with Tenant's business in the Premises.
g. Tenant shall give Landlord prompt notice of any damage
to or defective condition in any part or appurtenance of
the Building's mechanical, electrical, plumbing, HVAC or
other systems serving, located in, or passing through the
Premises.
h. Upon the expiration or earlier termination of this
Lease, Tenant shall return the Premises to Landlord clean
and in the same condition as on the date Tenant took
possession, except for normal wear and tear. Any damage to
the Premises, including any structural damage, resulting
from Tenant's use or from the removal of Tenant's fixtures,
furnishings and equipment pursuant to Section 13b shall be
repaired by Tenant at Tenant's expense.
12. ALTERATIONS AND ADDITIONS.
a.Tenant shall not make any additions, alterations or
improvements to the Premises without obtaining the prior
written consent of Landlord. Landlord's consent may be
conditioned on Tenant's removing any such additions,
alterations or improvements upon the expiration of the Term
and restoring the Premises to the same condition as on the
date Tenant took possession. All work with respect to any
addition, alteration or improvement shall be done in a good
and workmanlike manner by properly qualified and licensed
personnel approved by Landlord, and such work shall be
diligently prosecuted to completion. If any such work is
performed by a contractor selected by Tenant and approved
by Landlord, Tenant shall pay to Landlord, upon completion
of any such work, an administrative fee of five percent
(5%) of the cost of the work. If any such work is performed
by Landlord's contractor, Tenant shall pay to Landlord,
upon completion of any such work, an administrative fee of
fifteen percent (15%) of the cost of the work.
b.Tenant shall pay the costs of any work done on the
Premises pursuant to Section 12a, and shall keep the
Premises, Building and Project free and clear of liens of
any kind. Tenant shall indemnify, defend against and keep
Landlord free and harmless from all liability, loss,
damage, costs, attorneys' fees and any other expense
incurred on account of claims by any person performing work
or furnishing materials or supplies for Tenant or any
person claiming under Tenant.
Tenant shall keep Tenant's leasehold interest, and any
additions or improvements which are or become the property
of Landlord under this Lease, free and clear of all
attachment or judgment liens. Before the actual
commencement of any work for which a claim or lien may be
filed, Tenant shall give Landlord notice of the intended
commencement date a sufficient time before that date to
enable Landlord to post notices of non-responsibility or
any other notices which Landlord deems necessary for the
proper protection of Landlord's interest in the Premises,
Building or the Project, and Landlord shall have the right
to enter the Premises and post such notices at any
reasonable time.
c. Landlord may require, at Landlord's sole option, that
Tenant provide to Landlord, at Tenant's expense, a lien and
completion bond in an amount equal to at least one and one-half
(1 1/2) times the total estimated cost of any additions,
alterations or improvements to be made in or to the Premises,
to protect Landlord against any liability for mechanic's and
materialmen's liens and to insure timely completion of the work.
Nothing contained in this Section 12c shall relieve Tenant of
its obligation under Section 12b to keep the Premises, Building
and Project free of all liens.
d. Unless their removal is required by Landlord as provided
in Section 12a, all additions, alterations and improvements made
to the Premises shall become the property of Landlord and be
surrendered with the Premises upon the expiration of the Term;
provided, however, Tenant's equipment, machinery and trade fixtures
which can be removed without damage to the Premises shall
remain the property of Tenant and may be removed, subject
to the provisions of Section 13b.
13. LEASEHOLD IMPROVEMENTS; TENANT'S PROPERTY.
a. All fixtures, equipment,improvements and appurtenances
attached to or built into the Premises at the commencement
of or during the Term, whether or not by or at the expense
of Tenant ("Leasehold Improvements"), shall be and remain
a part of the Premises, shall be the property of Landlord
and shall not be removed by Tenant, except as expressly
provided in Section 13b.
b. All movable partitions, business and trade fixtures,
machinery and equipment, communications equipment and
office equipment located in the Premises and acquired by or
for the account of Tenant, without expense to Landlord,
which can be removed without structural damage to the
Building, and all furniture, furnishings and other articles
of movable personal properly owned by Tenant and located in
the Premises (collectively "Tenant's Property") shall be
and shall remain the property of Tenant and may be removed
by Tenant at any time during the Term; provided that if any
of Tenant's Property is removed, Tenant shall promptly
repair any damage to the Premises or to the Building
resulting from such removal.
14. RULES AND REGULATIONS.
Tenant agrees to comply with (and cause its agents,
contractors, employees and invitees to comply with) the
rules and regulations attached hereto as Exhibit "D" and
with such reasonable modifications thereof and additions
thereto as Landlord may from time to time make. Landlord
shall not be responsible for any violation of said rules
and regulations by other tenants or occupants of the
Building or Project.
15. CERTAIN RIGHTS RESERVED BY LANDLORD.
Landlord reserves the following rights, exercisable without
liability to Tenant for (a) damage or injury to property,
person or business, (b) causing an actual or constructive
eviction from the Premises, or (c) disturbing Tenant's use
or possession of the Premises:
a. To name the Building and Project and to change the
name or street address of the Building or Project;
b. To install and maintain all signs on the exterior and
interior of the Building and Project;
c. To have pass keys to the Premises and all doors within
the Premises, excluding Tenant's vaults and safes;
d. At any time during the Term, and on reasonable prior
notice to Tenant, to inspect the Premises, and to show the
Premises to any prospective purchaser or mortgagee of the
Project, or to any assignee of any mortgage on the Project,
or to others having an interest in the Project or Landlord,
and during the last six months of the Term, to show the
Premises to prospective tenants thereof; and
e. To enter the Premises for the purpose of making
inspections, repairs, alterations, additions or
improvements to the Premises or the Building (including,
without limitation, checking, calibrating, adjusting or
balancing controls and other parts of the HVAC system), and
to take all steps as may be necessary or desirable for the
safety, protection, maintenance or preservation of the
Premises or the Building or Landlord's interest therein, or
as may be necessary or desirable for the operation or
improvement of the Building or in order to comply with
laws, orders or requirements of governmental or other
authority. Landlord agrees to use its best efforts (except
in an emergency) to minimize interference with Tenant's
business in the Premises in the course of any such entry.
16. ASSIGNMENT AND SUBLETTING.
No assignment of this Lease or sublease of all or any part
of the Premises shall be permitted, except as provided in
this Article 16.
a. Tenant shall not, without the prior written consent of
Landlord, which consent shall not be unreasonably withheld,
assign or hypothecate this Lease or any interest herein or
sublet the Premises or any part thereof, or permit the use
of the Premises by any party other than Tenant. Any of the
foregoing acts without such consent shall be void and
shall, at the option of Landlord, terminate this Lease.
This Lease shall not, nor shall any interest of Tenant
herein, be assignable by operation of law without the
written consent of Landlord.
b. If at any time or from time to time during the Term
Tenant desires to assign this Lease or sublet all or any
part of the Premises, Tenant shall give notice to Landlord
setting forth the terms and provisions of the proposed
assignment or sublease, and the identity of the proposed
assignee or subtenant. Tenant shall promptly supply
Landlord with such information concerning the business
background and financial condition of such proposed
assignee or subtenant as Landlord may reasonably request.
Landlord shall within twenty (20) days after Tenant's
notice is given, either approve or, in Landlord's
reasonable judgment, disapprove the proposed assignment or
sublease. If Landlord approves the proposed assignment or
sublease, Tenant may assign the Lease or sublet such space
to such proposed assignee or subtenant on the following
further conditions:
(1) The assignment or sublease shall be on the same
terms set forth in the notice given to Landlord;
(2) No assignment or sublease shall be valid and no
assignee or sublessee shall take possession of the
Premises until an executed counterpart of such
assignment or sublease has been delivered to Landlord;
and
(3) No assignee or sublessee shall have a further right to assign or
sublet except on the terms herein contained.
c. Notwithstanding the provisions of paragraphs a and b
above, Tenant may assign this Lease or sublet the Premises
or any portion thereof, without Landlord's consent and
without extending any recapture or termination option to
Landlord, to any corporation which controls, is controlled
by or is under common control with Tenant, or to any
corporation resulting from a merger or consolidation with
Tenant, or to any person or entity which acquires all the
assets of Tenant's business as a going concern, provided
that (i) the assignee or sublessee assumes, in full, the
obligations of Tenant under this Lease, (ii) Tenant remains
fully liable under this Lease, and (iii) the use of the
Premises under Article 8 remains unchanged.
d. No subletting or assignment shall release Tenant of
Tenant's obligations under the Lease or alter the
primary liability of Tenant to pay the Rent and
to perform all other obligations to be performed by Tenant
hereunder. The acceptance of Rent by Landlord from any
other person shall not be deemed to be a waiver by Landlord
of any provision hereof. Consent to one assignment or
subletting shall not be deemed consent to any subsequent
assignment or subletting. In the event of default by an
assignee or subtenant 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 assignee, subtenant or
successor. Landlord may consent to subsequent assignments
of the Lease or sublettings or amendments or modifications
to the 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 shall not
relieve Tenant of liability under this Lease.
17. HOLDING OVER
If after expiration of the Term, Tenant remains in
possession of the Premises with Landlord's permission
(express or implied), Tenant shall become a tenant from
month to month only, upon all the provisions of this Lease
(except as to term and Base Rent), but the "Monthly
Installments of Base Rent" payable by Tenant shall be
increased to 125% of the Monthly Installments of Base Rent
payable by Tenant at the expiration of the Term. Such
monthly rent shall be payable in advance on or before the
first day of each month. If either party desires to
terminate such month to month tenancy, it shall give the
other party not less than thirty (30) days advance written
notice of the date of termination.
18. SURRENDER OF PREMISES.
a. Tenant shall peaceably surrender the Premises
to Landlord on the Expiration Date, in broom-clean
condition and in as good condition as when Tenant took
possession, except for (i) reasonable wear and tear, (ii)
loss by fire or other casualty, and (iii) loss by
condemnation. Tenant shall, on Landlord's request, remove
Tenant's Property on or before the Expiration Date and
promptly repair all damage to the Premises or Building
caused by such removal.
b. If Tenant abandons or surrenders the
Premises, or is dispossessed by process of law or
otherwise, any of Tenant's Property left on the Premises
shall be deemed to be abandoned, and, at Landlord's option,
title shall pass to Landlord under this Lease as by a xxxx
of sale. If Landlord elects to remove all or any part of
such Tenant's Property, the cost of removal, including
repairing any damage to the Premises or Building caused by
such removal, shall be paid by Tenant. On the Expiration
Date Tenant shall surrender all keys to the Premises.
19. DESTRUCTION OR DAMAGE.
a. If the Premises or the portion of the Building
necessary for Tenant's occupancy is damaged by
fire, earthquake, act of God, the elements of other
casualty, Landlord shall, subject to the provisions of this
Article, promptly repair the damage, if such repairs can in
Landlord's reasonable opinion, be completed within one
hundred eighty (180) days. If Landlord determines that
repairs can be completed within one hundred eighty (180)
days, this Lease shall remain in full force and effect,
except that if such damage is not the result of the
negligence or willful misconduct of Tenant or Tenant's
agents, employees, contractors, licensees or invitees, the
Base Rent shall be abated to the extent Tenant's use of the
Premises is impaired, commencing with the date of damage
and continuing until completion of the repairs required of
Landlord under Section 19d.
b. See Addendum One - Additional Provisions.
c. See Addendum One - Additional Provisions.
d. If the Premises are to be repaired under this
Article, Landlord shall repair at its cost any injury or
damage to the Building and Building Standard Work in the
Premises. Tenant shall be responsible at its sole cost and
expense for the repair, restoration and replacement of any
other Leasehold Improvements and Tenant's Property.
Landlord shall not be liable for any loss of business,
inconvenience or annoyance arising from any repair or
restoration of any portion of the Premises, Building or
Project as a result of any damage from fire or other
casualty.
e. This Lease shall be considered an express agreement
governing any case of damage to or destruction of the
Premises, Building or Project by fire or other casualty,
and any present or future law which purports to govern the
rights of Landlord and Tenant in such circumstances in the
absence of express agreement, shall have no application.
20. EMINENT DOMAIN.
a. If the whole of the Building or Premises is lawfully
taken by condemnation or in any other manner for any public
or quasi-public purpose, this Lease shall terminate as of
the date of such taking, and Rent shall be prorated to such
date. If less than the whole of the Building or Premises is
so taken, this Lease shall be unaffected by such taking,
provided that (i) Tenant shall have the right to terminate
this Lease by notice to Landlord given within ninety (90)
days after the date of such taking if twenty percent (20%)
or more of the Premises is taken and the remaining area of
the Premises is not reasonably sufficient for Tenant to
continue operation of its business, and (ii) Landlord shall
have the right to terminate this Lease by notice to Tenant
given within ninety (90) days after the date of such
taking. If either Landlord or Tenant so elects to terminate
this Lease, the Lease shall terminate on the thirtieth
(30th) day after either such notice. The Rent shall be
prorated to the date of termination. If this Lease
continues in force upon such partial taking, the Base Rent
and Tenant's Proportionate Share shall be equitably
adjusted according to the remaining Rentable Area of the
Premises and Project.
b. In the event of any taking, partial or whole, all of
the proceeds of any award, judgment or settlement payable
by the condemning authority shall be the exclusive property
of Landlord, and Tenant hereby assigns to Landlord all of
its right, title and interest in any award, judgment or
settlement from the condemning authority. Tenant, however,
shall have the right, to the extent that Landlord's award
is not reduced or prejudiced, to claim from the condemning
authority (but not from Landlord) such compensation as may
be recoverable by Tenant in its own right for relocation
expenses and damage to Tenant's personal property.
c. In the event of a partial taking of the Premises which
does not result in a termination of this Lease, Landlord
shall restore the remaining portion of the Premises as
nearly as practicable to its condition prior to the
condemnation or taking, but only to the extent of Building
Standard Work. Tenant shall be responsible at its sole cost
and expense for the repair, restoration and replacement of
any other Leasehold Improvements and Tenant's Property.
21. INDEMNIFICATION.
a. Tenant shall indemnify and hold Landlord harmless
against and from liability and claims of any kind for loss
or damage to properly of Tenant or any other person, or for
any injury to or death of any person, arising out of: (1)
Tenant's use and occupancy of the Premises, or any work,
activity or other things allowed or suffered by Tenant to
be done in, on or about the Premises; (2) any breach or
default by Tenant of any of Tenant's obligations under this
Lease; or (3) any negligent or otherwise tortious act or
omission of Tenant, its agents, employees, invitees or
contractors. Tenant shall at Tenant's expense, and by
counsel satisfactory to Landlord, defend Landlord in any
action or proceeding arising from any such claim and shall
indemnify Landlord against all costs, attorneys' fees,
expert witness fees and any other expenses incurred in such
action or proceeding. As a material part of the
consideration for Landlord's execution of this Lease,
Tenant hereby assumes all risk of damage or injury to any
person or property in, on or about the Premises from any
cause.
b. Landlord shall not be liable for injury or damage
which may be sustained by the person or property of Tenant,
its employees, invitees or customers, or any other person
in or about the Premises, caused by or resulting from fire,
steam, electricity, gas, water or rain which may leak or
flow from or into any part of the Premises, or from the
breakage, leakage, obstruction or other defects of pipes,
sprinklers, wires, appliances, plumbing, air conditioning
or lighting fixtures, whether such damage or injury results
from conditions arising upon the Premises or upon other
portions of the Building or Project or from other sources.
Landlord shall not be liable for any damages arising from
any act or omission of any other tenant of the Building or
Project.
22. TENANT'S INSURANCE.
a. All insurance required to be carried by Tenant
hereunder shall be Issued by responsible insurance
companies acceptable to Landlord and Landlord's lender and
qualified to do business in the State. Each policy shall
name Landlord, and at Landlord's request any mortgagee of
Landlord, as an additional insured, as their respective
interests may appear. Each policy shall contain (i) a cross-
liability endorsement, (ii) a provision that such policy
and the coverage evidenced thereby shall be primary and non-
contributing with respect to any policies carried by
Landlord and that any coverage carried by Landlord shall be
excess insurance, and (iii) a waiver by the insurer of any
right of subrogation against Landlord, its agents,
employees and representatives, which arises or might arise
by reason of any payment under such policy, or by reason of
any act or omission of Landlord, its agents, employees or
representatives. A copy of each paid up policy
(authenticated by the insurer) or certificate of the
insurer evidencing the existence and amount of each
insurance policy required hereunder shall be delivered to
Landlord before the date Tenant is first given the right of
possession of the Premises, and thereafter within thirty
(30) days after any demand by Landlord therefor. Landlord
may, at any time and from time to time, inspect and/or copy
any insurance policies required to be maintained by Tenant
hereunder. No such policy shall be cancelable except after
twenty (20) days written notice to Landlord and Landlord's
lender. Tenant shall furnish Landlord with renewals or
"binders" of any such policy at least ten (10) days prior
to the expiration thereof. Tenant agrees that if Tenant
does not take out and maintain such insurance, Landlord may
(but shall not be required to) procure said insurance on
Tenant's behalf and charge the Tenant the premiums together
with a twenty-five percent (25%) handling charge, payable
upon demand. Tenant shall have the right to provide such
insurance coverage pursuant to blanket policies obtained by
the Tenant, provided such blanket policies expressly afford
coverage to the Premises, Landlord, Landlord's mortgagee
and Tenant as required by this Lease.
b. Beginning on the date Tenant is given access to the
Premises for any purpose and continuing until expiration of
the Term, Tenant shall procure, pay for and maintain in
effect policies of casualty insurance covering (i) all
Leasehold Improvements (including any alterations,
additions or improvements as may be made by Tenant pursuant
to the provisions of Article 12 hereof), and (ii) trade
fixtures, merchandise and other personal property from time
to time in, on or about the Premises, in an amount not less
than one hundred percent (100%) of their actual replacement
cost from time to time, providing protection against any
peril included within the classification "Fire and Extended
Coverage" together with insurance against sprinkler damage,
vandalism and malicious mischief. The proceeds of such
insurance shall be used for the repair or replacement of
the property so insured. Upon termination of this Lease
following a casualty as set forth herein, the proceeds
under (i) shall be paid to Landlord, and the proceeds under
(ii) above shall be paid to Tenant.
c. Beginning on the date Tenant is given access to the
Premises for any purpose and continuing until expiration of
the Term, Tenant shall procure, pay for and maintain in
effect workers' compensation insurance as required by law
and comprehensive public liability and properly damage
insurance with respect to the construction of improvements
on the Premises, the use, operation or condition of the
Premises and the operations of Tenant in, on or about the
Premises, providing personal injury and broad form property
damage coverage for not less than One Million Dollars
($1,000,000.00) combined single limit for bodily injury,
death and property damage liability.
d. Not less than every three (3) years during the Term,
Landlord and Tenant shall discuss whether to increase any
or all of Tenant's insurance policy limits for all
insurance to be carried by Tenant as set forth in this
Article. In the event Landlord and Tenant cannot mutually
agree upon whether any such increases are necessary or, if
so, the amounts thereof, then Tenant agrees that all
insurance policy limits as set forth in this Article shall
be adjusted for increases in the cost of living in the same
manner as is set forth in Section 5.2 hereof for the
adjustment of the Base Rent.
23. WAIVER OF SUBROGATION.
Landlord and Tenant each hereby waive all rights of
recovery against the other and against the officers,
employees, agents and representatives of the other, on
account of loss by or damage to the waiving party of its
property or the property of others under its control, to
the extent that such loss or damage is insured against
under any fire and extended coverage insurance policy which
either may have in force at the time of the loss or damage.
Tenant shall, upon obtaining the policies of insurance
required under this Lease, give notice to its insurance
carrier or carriers that the foregoing mutual waiver of
subrogation is contained in this Lease.
24. SUBORDlNATlON AND ATTORNMENT.
Upon written request of Landlord, or any first mortgagee or
first deed of trust beneficiary of Landlord, or ground
lessor of Landlord, Tenant shall, in writing, subordinate
its rights under this Lease to the lien of any first
mortgage or first deed of trust, or to the interest of any
lease in which Landlord is lessee, and to all advances made
or hereafter to be made thereunder. However, before signing
any subordination agreement, Tenant shall have the right to
obtain from any lender or lessor or Landlord requesting
such subordination, an agreement in writing providing that,
as long as Tenant is not in default hereunder, this Lease
shall remain in effect for the full Term. The holder of any
security interest may, upon written notice to Tenant, elect
to have this Lease prior to its security interest
regardless of the time of the granting or recording of such
security interest.
In the event of any foreclosure sale, transfer in lieu of
foreclosure or termination of the lease in which Landlord
is lessee, Tenant shall attorn to the purchaser, transferee
or lessor as the case may be, and recognize that party as
Landlord under this Lease, provided such party acquires and
accepts the Premises subject to this Lease.
25. TENANT ESTOPPEL CERTIFICATES.
Within ten (10) days after written request from Landlord,
Tenant shall execute and deliver to Landlord or Landlord's
designee, a written statement certifying (a) that this
Lease is unmodified and in full force and effect, or is in
full force and effect as modified and stating the
modifications; (b) the amount of Base Rent and the date to
which Base Rent and additional rent have been paid in
advance; (c) the amount of any security deposited with
Landlord; and (d) that Landlord is not in default hereunder
or, if Landlord is claimed to be in default, stating the
nature of any claimed default. Any such statement may be
relied upon by a purchaser, assignee or lender. Tenant's
failure to execute and deliver such statement within the
time required shall at Landlord's election be a default
under this Lease and shall also be conclusive upon Tenant
that: (1) this Lease is in full force and effect and has
not been modified except as represented by Landlord; (2)
there are no uncured defaults in Landlord's performance and
that Tenant has no right of offset, counter-claim or
deduction against Rent; and (3) not more than one month's
Rent has been paid in advance.
26. TRANSFER OF LANDLORD'S INTEREST
In the event of any sale or transfer by Landlord of the
Premises, Building or Project, and assignment of this Lease
by Landlord, Landlord shall be and is hereby entirely freed
and relieved of any and all liability and obligations
contained in or derived from this Lease arising out of any
act, occurrence or omission relating to the Premises,
Building, Project or Lease occurring after the consummation
of such sale or transfer, providing the purchaser shall
expressly assume all of the covenants and obligations of
Landlord under this Lease. If any security deposit or
prepaid Rent has been paid by Tenant, Landlord may transfer
the security deposit or prepaid Rent to Landlord's
successor and upon such transfer, Landlord shall be
relieved of any and all further liability with respect
thereto.
27. DEFAULT.
27.1. Tenant's Default. The occurrence of any one or more
of the following events shall constitute a default and
breach of this Lease by Tenant:
a. Deleted.
b. If Tenant fails to pay any Rent or any other charges
required to be paid by Tenant under this Lease and such
failure continues for 10 days after such payment is due and
payable; or
c. If Tenant fails to promptly and fully perform any
other covenant, condition or agreement contained in this
Lease and such failure continues for thirty (30) days after
written notice thereof from Landlord to Tenant; or
d. If a writ of attachment or execution is levied on this
Lease or on any of Tenant's Property; or
e. If Tenant makes a general assignment for the benefit
of creditors, or provides for an arrangement, composition,
extension or adjustment with its creditors; or
f. If Tenant files a voluntary petition for relief or
if a petition against Tenant in a proceeding under the
federal bankruptcy laws or other insolvency laws is filed
and not withdrawn or dismissed within forty-five (45) days
thereafter, of if under the provisions of any law providing for
reorganization or winding up of corporations, any court of competent
jurisdiction assumes jurisdiction, custody or control of Tenant or
any substantial part of its property and such jurisdiction, custody
or control remains in force unrelinquished, unstayed or unterminated
for a period of forty-five (45) days; or
g. If in any proceeding or action in which Tenant is a party,
a trustee, receiver, agent or custodian is appointed
to take charge of the Premises or Tenant's Property (or has
the authority to do so) for the purpose of enforcing a lien against
the Premises or Tenant's Property; or
h. If Tenant is a partnership or consists of more than
one (1) person or entity, if any partner of the partnership
or other person or entity is involved in any of the acts or
events described in subparagraphs d through g above.
27.2. Remedies. In the event of Tenant's default hereunder,
then in addition to any other rights or remedies Landlord
may have under any law, Landlord shall have the right, at
Landlord's option, without further notice or demand of any
kind to do the following:
a. Terminate this Lease and Tenant's right to possession of
the Premises and reenter the Premises and take possession thereof,
and Tenant shall have no further claim to the Premises or under this
Lease; or
b. Continue this Lease in effect, reenter and occupy the Premises
for the account of Tenant, and collect any unpaid Rent or other
charges which have or thereafter become due and payable; or
c. Reenter the Premises under the provisions of subparagraph b,
and thereafter elect to terminate this Lease and Tenant's right
to possession of the Premises. If Landlord reenters the Premises under
the provisions of subparagraphs b or c above Landlord shall not be
deemed to have terminated this Lease or the obligation of Tenant to
pay any Rent or other charges thereafter accruing, unless Landlord
notifies Tenant in writing of Landlord's election to terminate this Lease.
In the event of any reentry or retaking of possession by Landlord, Landlord
shall have the right, but not the obligation, to remove all or any part
of Tenant's Property in the Premises and to place such property in
storage at a public warehouse at the expense and risk of Tenant.
If Landlord elects to relet the Premises for the account of Tenant,
the rent received by Landlord from such reletting shall be applied
as follows: first, to the payment of any indebtedness other than Rent
due hereunder from Tenant to Landlord: second, to the payment of
any costs of such reletting; third, to the payment of the cost of any
alterations or repairs to the Premises; fourth, to the payment of
Rent due and unpaid hereunder: and the balance, if any, shall be held
by Landlord and applied in payment of future Rent as it becomes due. If
that portion of rent received from the reletting which is applied against
the Rent due hereunder is less than the amount of the Rent due, Tenant
shall pay the deficiency to Landlord promptly upon demand by Landlord.
Such deficiency shall be calculated and paid monthly. Tenant shall also
pay to Landlord, as soon as determined, any costs and expenses incurred
by Landlord in connection with such reletting or in making alterations and
repairs to the Premises, which are not covered by the rent received from
the reletting.
Should Landlord elect to terminate this Lease under the
provisions of subparagraph a or c above, Landlord may
recover as damages from Tenant the following:
1. Past Rent. The worth at the time of the award of any
unpaid Rent which had been earned at the time of
termination; plus
2. Rent Prior to Award. The worth at the time of the
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 rental loss that Tenant proves
could have been reasonably avoided; plus
3. Rent After Award. The worth at the time of the award
of the amount by which the unpaid Rent for the balance of
the Term after the time of award exceeds the amount of the
rental loss that Tenant proves could be reasonably avoided;
plus
4. Proximately Caused Damages. Any other amount necessary
to compensate Landlord for all detriment proximately caused
by Tenant's failure to perform its obligations under this
Lease or which in the ordinary course of things would be
likely to result therefrom, including, but not limited to,
any costs or expenses (including attorneys' fees), incurred
by Landlord in (a) retaking possession of the Premises, (b)
maintaining the Premises after Tenant's default, (c)
preparing the Premises for reletting to a new tenant,
including any repairs or alterations, and (d) reletting the
Premises, including broker's commissions.
"The worth at the time of the award" as used in
subparagraphs 1 and 2 above, is to be computed by allowing
interest at the rate of ten percent (10%) per annum. "The
worth at the time of the award" as used in subparagraph 3
above, is to be computed by discounting the amount at the
discount rate of the Federal Reserve Bank situated nearest
to the Premises at the time of the award plus one percent
(1%).
The waiver by Landlord of any breach of any term, covenant
or condition of this Lease shall not be deemed a waiver of
such term, covenant or condition or of any subsequent
breach of the same or any other term, covenant or
condition. Acceptance of Rent by Landlord subsequent to any
breach hereof shall not be deemed a waiver of any preceding
breach other than the failure to pay the particular Rent so
accepted, regardless of Landlord's knowledge of any breach
at the time of such acceptance of Rent. Landlord shall not
be deemed to have waived any term, covenant or condition
unless Landlord gives Tenant written notice of such waiver.
27.3 Landlord's Default. If Landlord fails to perform any
covenant, condition or agreement contained in this Lease
within thirty (30) days after receipt of written notice
from Tenant specifying such default, or if such default
cannot reasonably be cured within thirty (30) days, if
Landlord fails to commence to cure within that thirty (30)
day period, then Landlord shall be liable to Tenant for any
damages sustained by Tenant as a result of Landlord's
breach; provided, however, it is expressly understood and
agreed that if Tenant obtains a money judgment against
Landlord resulting from any default or other claim arising
under this Lease, that judgment shall be satisfied only out
of the rents, issues, profits, and other income actually
received on account of Landlord's right, title and interest
in the Premises, Building or Project, and no other real,
personal or mixed property of Landlord (or of any of the
partners which comprise Landlord, if any) wherever
situated, shall be subject to levy to satisfy such
judgment. If, after notice to Landlord of default, Landlord
(or any first mortgagee or first deed of trust beneficiary
of Landlord) fails to cure the default as provided herein,
then Tenant shall have the right to cure that default at
Landlord's expense. Tenant shall not have the right to
terminate this Lease or to withhold, reduce or offset any
amount against any payments of Rent or any other charges
due and payable under this Lease except as otherwise
specifically provided herein.
28. BROKERAGE FEES.
Tenant warrants and represents that it has not dealt with
any real estate broker or agent in connection with this
Lease or its negotiation except those noted in Section 2.c.
Tenant shall indemnify and hold Landlord harmless from any
cost, expense or liability (including costs of suit and
reasonable attorneys' fees) for any compensation,
commission or fees claimed by any other real estate broker
or agent in connection with this Lease or its negotiation
by reason of any act of Tenant.
29. NOTICES.
All notices, approvals and demands permitted or required to
be given under this Lease shall be in writing and deemed
duly served or given if personally delivered or sent by
certified or registered U.S. mail, postage prepaid, and
addressed as follows: (a) if to Landlord, to Landlord's
Mailing Address and to the Building manager, and (b) if to
Tenant, to Tenant's Mailing Address; provided, however,
notices to Tenant shall be deemed duly served or given if
delivered or mailed to Tenant at the Premises. Landlord and
Tenant may from time to time by notice to the other
designate another place for receipt of future notices.
30. GOVERNMENT ENERGY OR UTILITY CONTROLS.
In the event of imposition of federal, state or local
government controls, rules, regulations, or restrictions on
the use or consumption of energy or other utilities during
the Term, both Landlord and Tenant shall be bound thereby.
In the event of a difference in interpretation by Landlord
and Tenant of any such controls, the interpretation of
Landlord shall prevail, and Landlord shall have the right
to enforce compliance therewith, including the right of
entry into the Premises to effect compliance.
31. RELOCATION OF PREMISES.
Landlord shall have the right to relocate the Premises to
another part of the Building in accordance with the
following:
a. The new premises shall be substantially the same in
size, dimensions, configuration, decor and nature as the
Premises described In this Lease, and if the relocation
occurs after the Commencement Date, shall be placed in that
condition by Landlord at its cost.
b. Landlord shall give Tenant at least thirty (30) days
written notice of Landlord's intention to relocate the
Premises.
c. As nearly as practicable, the physical relocation of
the Premises shall take place on a weekend and shall be
completed before the following Monday. If the physical
relocation has not been completed in that time, Base Rent
shall xxxxx in full from the time the physical relocation
commences to the time it is completed. Upon completion of
such relocation, the new premises shall become the
"Premises" under this Lease.
d. All reasonable costs incurred by Tenant as a result of
the relocation shall be paid by Landlord.
e. If the new premises are smaller than the Premises as
it existed before the relocation, Base Rent shall be
reduced proportionately.
f. The parties hereto shall immediately execute an
amendment to this Lease setting forth the relocation of the
Premises and the reduction of Base Rent, if any.
g. Landlord shall not exercise its right to relocate the
Premises hereunder more than once each five (5) years
during the term of this lease.
32. QUIET ENJOYMENT.
Tenant, upon paying the Rent and performing all of its
obligations under this Lease, shall peaceably and quietly
enjoy the Premises, subject to the terms of this Lease and
to any mortgage, lease, or other agreement to which this
Lease may be subordinate.
33. OBSERVANCE OF LAW.
Tenant shall not use the Premises or permit anything to be
done in or about the Premises which will in any way
conflict with any law, statute, ordinance or governmental
rule or regulation now in force or which may hereafter be
enacted or promulgated. Tenant shall, at its sole cost and
expense, promptly comply with all laws, statutes,
ordinances and governmental rules, regulations or
requirements now in force or which may hereafter be in
force, and with the requirements of any board of fire
insurance underwriters or other similar bodies now or
hereafter constituted, relating to, or affecting the
condition, use or occupancy of the Premises, excluding
structural changes not related to or affected by Tenant's
improvements or acts. The judgment of any court of
competent jurisdiction or the admission of Tenant in any
action against Tenant, whether Landlord is a party thereto
or not, that Tenant has violated any law, ordinance or
governmental rule, regulation or requirement, shall be
conclusive of that fact as between Landlord and Tenant.
34. FORCE MAJEURE.
Any prevention, delay or stoppage of work to be performed
by Landlord or Tenant which is due to strikes, labor
disputes, inability to obtain labor, materials, equipment
or reasonable substitutes therefor, acts of God,
governmental restrictions or regulations or controls,
judicial orders, enemy or hostile government actions, civil
commotion, fire or other casualty, or other causes beyond
the reasonable control of the party obligated to perform
hereunder shall excuse performance of the work by that
party for a period equal to the duration of that
prevention, delay or stoppage. Nothing in this Article 34
shall excuse or delay Tenant's obligation to pay Rent or
other charges under this Lease.
35. CURING TENANT'S DEFAULTS.
If Tenant defaults in the performance of any of its
obligations under this Lease, Landlord may (but shall not
be obligated to) without waiving such default, perform the
same for the account at the expense of Tenant. Tenant shall
pay Landlord all costs of such performance promptly upon
receipt of a xxxx therefor.
36. SIGN CONTROL.
Tenant shall not affix, paint, erect or inscribe any sign,
projection, awning, signal or advertisement of any kind to
any part of the Premises, Building or Project, including
without limitation, the inside or outside of windows or
doors, without the written consent of Landlord. Landlord
shall have the right to remove any signs or other mailer,
installed without Landlord's permission, without being
liable to Tenant by reason of such removal, and to charge
the cost of removal to Tenant as additional rent hereunder,
payable within ten (10) days of written demand by Landlord.
37. MISCELLANEOUS.
a. Accord and Satisfaction; Allocation of Payments. No
payment by Tenant or receipt by Landlord of a lesser amount
than the Rent provided for in this Lease shall be deemed to
be other than on account of the earliest due Rent, nor
shall any endorsement or statement on any check or letter
accompanying any check or payment as Rent 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 the Rent or pursue any other remedy provided
for in this Lease. In connection with the foregoing,
Landlord shall have the absolute right in its sole
discretion to apply any payment received from Tenant to any
account or other payment of Tenant then not current and due
or delinquent.
b. Addenda. If any provision contained in an addendum to
this Lease is inconsistent with any other provision herein,
the provision contained in the addendum shall control,
unless otherwise provided in the addendum.
c. Attorneys' Fees. If any action or proceeding is brought
by either party against the other pertaining to or arising
out of this lease, the finally prevailing party shall be
entitled to recover all costs and expenses, including
reasonable attorneys' fees, incurred on account of such
action or proceeding.
d. Captions, Articles and Section Numbers. The captions
appearing within the body of this Lease have been inserted
as a matter of convenience and for reference only and in no
way define, limit or enlarge the scope or meaning of this
Lease. All references to Article and Section numbers refer
to Articles and Sections in this Lease.
e. Changes Requested by Lender. Neither Landlord or
Tenant shall unreasonably withhold its consent to changes
or amendments to this Lease requested by the lender on
Landlord's interest, so long as these changes do not alter
the basic business terms of this Lease or otherwise
materially diminish any rights or materially increase any
obligations of the party from whom consent to such charge
or amendment is requested.
f. Choice of Law. This Lease shall be construed and
enforced in accordance with the laws of the State.
g. Consent. Notwithstanding anything contained in this
Lease to the contrary, Tenant shall have no claim, and
hereby waives the right to any claim against Landlord for
money damages by reason of any refusal, withholding or
delaying by Landlord of any consent, approval or statement
of satisfaction, and in such event, Tenant's only remedies
therefor shall be an action for specific performance,
injunction or declaratory judgment to enforce any right to
such consent, etc.
h. Corporate Authority. If Tenant is a corporation, each
individual signing this Lease on behalf of Tenant,
represents and warrants that he is duly authorized to
execute and deliver this Lease on behalf of the corporation
and that this Lease is binding in accordance with its
terms. Tenant shall, at Landlord's request, deliver a
certified copy of a resolution of its board of directors
authorizing such execution.
i. Counterparts. This Lease may be executed in multiple
counterparts, all of which shall constitute one and the
same Lease.
j. Execution of Lease; No Option. The submission of this
Lease to Tenant shall be for examination purposes only and
does not and shall not constitute a reservation of or
option for Tenant to lease, or otherwise create any
interest of Tenant in the Premises or any other premises
within the Building or Project. Execution of this Lease by
Tenant and its return to Landlord shall not be binding on
Landlord notwithstanding any time interval, until Landlord
has in fact signed and delivered this tease to Tenant.
k. Furnishing of Financial Statements; Tenant's
Representations. In order to induce Landlord to enter into
this Lease Tenant agrees that it shall promptly furnish
Landlord, from time to time, upon Landlord's written
request, with financial statements reflecting Tenant's
current financial condition. Tenant represents and warrants
that all financial statements, records and information
furnished by Tenant to Landlord in connection with this
Lease are true, correct and complete in all material
respects.
l. Further Assurances. The parties agree to promptly sign
all documents reasonably requested to give effect to the
provisions of this Lease.
m. Mortgagee Protection. Tenant agrees to send by
certified or registered mail to any first mortgagee or
first deed of trust beneficiary of Landlord whose address
has been furnished to Tenant, a copy of any notice of
default served by Tenant on Landlord. If Landlord fails to
cure such default within the time provided for in this
Lease, such mortgagee or beneficiary shall have an
additional thirty (30) days to cure such default; provided
that if such default cannot reasonably be cured within that
thirty (30) day period, then such mortgagee or beneficiary
shall have such additional time to cure the default as us
reasonably necessary under the circumstances.
n. Prior Agreements; Amendments. This Lease contains all
of the agreements of the parties with respect to any matter
covered or mentioned in this Lease1 and no prior agreement
or understanding pertaining to any such matter shall be
effective for any purpose. No provisions of this Lease may
be amended or added to except by an agreement in writing
signed by the parties or their respective successors in
interest.
o. Recording. Tenant shall not record this Lease
without the prior written consent of Landlord. Tenant, upon
the request of Landlord, shall execute and acknowledge a
"short form" memorandum of this Lease for recording
purposes.
p. Severability. A final determination by a court of
competent jurisdiction that any provision of this Lease is
invalid shall not affect the validity of any other
provision, and any provision so determined to be invalid
shall, to the extent possible, be construed to accomplish
its intended effect.
q. Successors and Assigns. This Lease shall apply to
and bind the heirs, personal representatives, and permitted
successors and assigns of the parties.
r. Time of the Essence. Time is of the essence of this
Lease.
s. Waiver. No delay or omission in the exercise of any
right or remedy of Landlord upon any default by Tenant
shall impair such right or remedy or be construed as a
waiver of such default.
t. Compliance. The parties hereto agree to comply with
all applicable federal, state and local laws, regulations,
codes, ordinances and administrative orders having
jurisdiction over the parties, property or the subject
matter of this Agreement, including, but not limited to,
the 1964 Civil Rights Act and all amendments thereto, the
Foreign Investment in Real Property Tax Act, the
Comprehensive Environmental Response Compensation and
Liability Act, and The Americans With Disabilities Act.
The receipt and acceptance by Landlord of delinquent Rent
shall not constitute a waiver of any other default; it
shall constitute only a waiver of timely payment for the
particular Rent payment involved.
No act or conduct of Landlord, including, without
limitation, the acceptance of keys to the Premises, shall
constitute an acceptance of the surrender of the Premises
by Tenant before the expiration of the Term. Only a written
notice from Landlord to Tenant shall constitute acceptance
of the surrender of the Premises and accomplish a
termination of the Lease.
Landlord's consent to or approval of any act by Tenant
requiring Landlord's consent or approval shall not be
deemed to waive or render unnecessary Landlord's consent to
or approval of any subsequent act by Tenant.
Any waiver by Landlord of any default must be in writing
and shall not be a waiver of any other default concerning
the same or any other provision of the Lease.
The parties hereto have executed this Lease as of the dates
set forth below.
Date: March 10, 1998 Date: March 9, 1998
Landlord: Airplaza Co., Inc. Tenant: Air Methods Corporation
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxx X. Xxxx
Title: President Title: CFO
HANGAR LEASE
This Lease between Airplaza Co., Inc. a Colorado corporation
("Landlord"), and Air Methods Corporation International, a
Colorado corporation, ("Tenant"), is dated March 2, 1998.
1. LEASE OF PREMISES.
In consideration of the Rent (as defined at Section 5A) and
the provisions of this Lease, Landlord leases to Tenant and
Tenant leases from Landlord the Premises shown by diagonal
lines on the floor plan attached hereto as Exhibit "A"' and
further described at Section 21. The Premises are located
within the 13uilding and Project described in Section 2m
Tenant shall have the non-exclusive right (unless otherwise
provided herein) in common with Landlord, other tenants,
subtenants and invitees. to use of the Common Areas (as
defined at Section 2e).
2. DEFINITIONS
As used in this Lease, the following terms shall have the
following meanings:
a. Base Rent (Initial): $ 206,224.47 per year.
b. Base Year: The calendar year of: N/A
c . Broker(s)
Landlord's: None
Tenant's: Xxxxxxx & Xxxxxxxxx of Colorado, Inc.
d. Commencement Date: April 1, 0000
x. Xxxxxx Xxxxx: the building lobbies, common corridors and
hallways, restrooms. garage and parking areas, stairways,
elevators and other generally understood public or common
areas. Landlord shall have the right to regulate or restrict
the use of the Common Areas.
f. Expense Stop: (fill in if applicable): $ n/a
g. Expiration Date: March 31, 2003, unless otherwise sooner
terminated in accordance with the provisions of this Lease.
h. Index (Section 5.2): United States Department of Labor,
bureau of Labor Statistics Consumer Price Index for All
Urban Consumers, U.S. City Average, Subgroup "All items"
(1967 = 100).
i. Landlord's Mailing Address: 0000 XXX Xxxxxxxxx,
Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000
Tenant's mailing Address: 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx
000, Xxxxxxxxx, Xxxxxxxx 00000
j. Monthly installments of Base Rent(initial): $17,185.37
per month.
k. Parking Tenant shall be permitted, at no additional
charge to park 54 cars on a non-exclusive basis in the
area(s) designated by Landlord for parking. Tenant shall
abide by any and all parking regulations and rules
established from time to time by Landlord or Landlord's
parking operator. Landlord reserves the right to separately
charge Tenant's guests and visitors for parking.
l. Premises: that portion of the Building containing
approximately 37,701 square feet of Rentable Area, shown by
diagonal lines on Exhibit "A" located on the ground floor of
the Building and known as Hangars A, B, C, D, E, F and G
(known as 7301, 7305, 7311, 7315, 7321, 7325 and 0000 Xxxxx
Xxxxxx Xxxxxx, respectively)
m. Project: the hangar building of which the Premises are a
part (the "Building") and any other buildings or
improvements on the real property (the "Property") located
at 7211 - 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx
00000 and further described at Exhibit "B." The Project is
known as Airplaza 22.
n. Rentable Areas: as to both the Premises and the Project, the
respective measurements of floor area as may from time to time be
subject to lease by Tenant and all tenants of the Project,
respectively, as determined by Landlord and applied on a consistent
basis throughout the Project.
o. Security Deposit (Section 7): $ -0- (zero)
p. State: the State of Colorado
q. Tenant's First Adjustment Date (Section 5.2): April 1, 1999.
r. Tenant's Proportionate Share: See Addendum One --
Additional Provisions.
s. Tenant's Use Clause (Article 8): Operation of an air
ambulance facility; storage, repair (major and minor),
service, charter and sale of all non-fixed wing aircraft;
storage and repair (major and minor) of all aircraft owned
or leased by Tenant; storage and minor repair of all
aircraft; storage for parts and supplies necessary or
related to 'Tenant's business; and any other lawful activity
involving aircraft not prohibited by the Land Lease between
the Arapahoe County Public Airport Authority, as Lessor, and
Landlord, as Lessee, dated as of October 15, 1987, as
amended. For purposes of the immediately preceding
sentence, Tenant's right to use the Premises for "repair"
purposes shall mean that Tenant shall have the right to
repair all components. systems and subsystems in aircraft to
the extent not prohibited by said Land Lease.
t. Term: the period commencing on the Commencement Date and
expiring at midnight on the Expiration Date.
3. EXHIBITS AND ADDENDA.
The exhibits and addenda listed below (unless lined out) are
incorporated by reference in this Lease:
a. Exhibit "A"-floor Plan showing the Premises.
b. Exhibit "B" - Site Plan of the Project.
c. Exhibit "C" - Work Agreement.
d. Exhibit "D"-Rules and Regulations.
e. Addenda: Addendum One Additional Provisions.
4. DELIVERY OF POSSESSION. See Addendum One -- Additional Provisions.
5. RENT.
5:1. Payment of Base Rent. Tenant agrees to pay the Base
Rent for the Premises. Monthly Installments of Base Rent
shall be payable In advance on the first day of each
calendar month of the Term. If the Term begins (or ends) on
other than the first (or last) day of a calendar month, the
Base Rent for the partial month shall be prorated on a per
diem basis. Tenant shall pay Landlord the first Monthly
Installment of' Base Rent when Tenant executes the Lease.
5.2 Adjusted Base Rent.
a. The Base Rent (and the corresponding Monthly Installments
of Base Rent) set forth at Section 2a shall be adjusted
annually (the "Adjustment Date"), commencing on Tenant's
First Adjustment Date. Adjustments. if any. shall be based
upon Increases (if any) in the Index. The Index in
publication three (3) months before the Commencement Date
shall be the "Base Index" The Index In publication three (3)
months before each Adjustment Date shall be the "Comparison
Index" As of each Adjustment Date, the Base Rent payable
during the ensuing twelve-month period shall be determined
by increasing the initial Base Rent by a percentage equal to
the percentage increase, if any, in the Comparison Index
over the Base Index. If the Comparison Index for any
Adjustment Date Is equal to or less than the Comparison
Index for the preceding Adjustment Date (or the Base Index,
In the case-of First Adjustment Date), the Base Rent for the
ensuing twelve-month period shall remain the amount of Base
Rent payable during the preceding twelve-month period. When
the Base Rent payable as of each Adjustment Date is
determined, Landlord shall promptly give Tenant written
notice of such adjusted Base Rent and the manner in which It
was computed. The Base Rent as so adjusted from time to time
shall be the "Base Rent" for all purposes under this Lease.
b. If at any Adjustment Date the Index no longer exists In
the form described in this Lease, Landlord may substitute
any substantially equivalent official Index published by the
Bureau of Labor Statistics or its successor. Landlord shall
use any appropriate conversion factors to accomplish such
substitution. The substitute index shall then become the
"Index" hereunder.
See Addendum One -- Additional Provisions.
5.3 Project Operating Costs.
a. In order that the Rent payable during the Term reflect any
Project Operating Costs, Tenant agrees to pay to Landlord as Rent,
Tenant's Proportionate Share of all costs, expenses and obligations
attributable to the Project and its operation, all as provided below.
The purpose of this provision is to reflect the fact that Landlord and
Tenant intend and agree that this Lease shall constitute a "triple
net" Lease with respect to the Premises.
b. During each calendar year during the term, (collectively, the
"Lease Years") Tenant shall pay to Landlord, in addition to the Base
Rent and all other payments due under this Lease, an amount equal to
Tenant's Proportionate Share of such excess Project Operating Costs in
accordance with the provisions of this Section 5.3b.
(1) The term "Project Operating Costs" shall include all
those Items described in the following subparagraphs (a) and
(b).
(a) All taxes, assessments, water and sewer charges. and
other similar governmental charges levied on or attributable
to the Building or Project or their operation, Including
without limitation, (i) real property taxes or assessments
levied or assessed against the Building or Project, (ii)
assessments or charges levied or assessed against the
Building or Project by any redevelopment agency, (iii) any
tax measured by gross rentals received from the leasing of
the Premises, Building or Project, excluding any net income,
franchise, capital stock, estate or Inheritance taxes
imposed by the State or federal government or their
agencies, branches or departments; provided that If at any
time during the Term any governmental entity levies,
assesses or imposes on Landlord any (1) general or special,
ad valorem or specific, excise, capital levy or other tax,
assessment, levy or charge directly on the Rent received
under this Lease or on the rent received under any other
leases of space in the Building or Project, or (2) any
license fee, excise or franchise tax, assessment, levy or
charge measured by or based, In whole or in part, upon such
rent, or (3) any transfer, transaction, or similar tax,
assessment, levy or charge based directly or Indirectly upon
the transaction represented by this Lease or such other
leases, or (4) any occupancy, use, per capita or other tax,
assessment, levy or charge based directly or indirectly upon
the use or occupancy of the Premises or other premises
within the Building or Project, then any such taxes,
assessments, levies and charges shall be deemed to be
included in the term Project Operating Costs, If at any time
during the Term the assessed valuation of, or taxes on, the
Project are not based on a completed Project having at least
eighty-five percent (85%) of the Rentable Area occupied,
then the "taxes" component of Project Operating Costs shall
be adjusted by Landlord to reasonably approximate the taxes
which would have been payable if the Project were completed
and at least eighty-five percent (85%) occupied.
(b) Operating costs Incurred by Landlord in maintaining and
operating the Building and Project, Including without
limitation the following: costs of (1) utilities; (2)
supplies; (3) insurance (including public liability,
property damage, earthquake, and fire and extended coverage
insurance for the full replacement cost of the Building and
Project as required by Landlord or its lenders for the
Project; (4) services of independent contractors; (5)
compensation (Including employment taxes and fringe
benefits) of all persons who perform duties connected with
the operation, maintenance, repair or overhaul of the
Building or Project, and equipment, improvements and
facilities located within the Project, Including without
limitation engineers, janitors, painters, floor waxes,
window washers, security and parking personnel and gardeners
(but excluding persons performing services not uniformly
available to or performed for substantially all Building or
Project tenants); (6) operation and maintenance of a room
for delivery and distribution of mall to tenants of the
Building or Project as required by the U.S. Postal Service
(including, without limitation, an amount equal to the fair
market rental value of the mail room premises); (7)
management of the Building or Project, whether managed by
Landlord or an Independent contractor (including, without
limitation, an amount equal to the fair market value of any
on-site manager's office) provided that such management
costs for the Project shall not exceed five percent (5%) of
Landlord's gross income from the Project; (8) rental
expenses for (or a reasonable depreciation allowance on)
personal property used in the maintenance, operation or
repair of the Building or Project; (9) costs, expenditures
or charges (whether capitalized or not) required by any
governmental or quasi-governmental authority; (10)
amortization of capital expenses (Including financing costs)
(i) required by a governmental entity for energy
conservation or life safety purposes, or (ii) made by
Landlord to reduce Project Operating Costs; and (11) any
other costs or expenses Incurred by Landlord under this
Lease and not otherwise reimbursed by tenants of the
Project. If at any time during the Term, less than eighty-
five percent (85%) of the Rentable Area of the Project is
occupied, the "operating costs" component of Project
Operating Costs shall be adjusted by Landlord to reasonably
approximate the operating costs which would have been
incurred If the Project had been at least eighty-five
percent (85%) occupied.
(2) Tenant's Proportionate Share of Project Operating Costs
shall be payable by Tenant to Landlord as follows:
(a) Beginning with the Base Year and for each Lease Year
thereafter, Tenant shall pay Landlord an amount equal to
Tenant's Proportionate Share of the Project Operating Costs
incurred by Landlord in that Lease Year.
(b) To provide for current payments of Project Operating
Costs, Tenant shall, at Landlord's request, pay as
additional rent during each Lease Year, an amount equal to
Tenant's Proportionate Share of the Project Operating Costs
payable during such Lease Year, as estimated by Landlord
from time to time. Such payments shall be made in monthly
installments, commencing on the first day of the month
following the month in which Landlord notifies Tenant of the
amount it is to pay hereunder and continuing until the first
day of the month following the month in which Landlord gives
Tenant a new notice of estimated Project Operating Costs.
It is the intent hereunder to estimate from time to time the
amount of the Project Operating Costs for each Lease Year
and Tenant's Proportionate Share thereof, and then to make
an adjustment in the following year based on the actual
Project Operating Costs incurred for that Lease Year.
(c) On or before April 1 of each Lease Year after the first
Lease Year (or as soon thereafter as is practical), Landlord
shall deliver to Tenant a statement setting forth Tenant's
Proportionate Share of the Project Operating Costs for the
preceding Lease Year. If Tenant's Proportionate Share of the
actual * for the previous Lease Year exceeds the total of
the estimated monthly payments made by Tenant for such year
Tenant shall pay Landlord the amount of the deficiency
within ten (10) days of the receipt of the statement If such
total exceeds Tenant's Proportionate Share of the actual
Project Operating Costs for such Lease Year, then Landlord
shall credit against Tenant's next ensuing monthly
installment(s) of additional rent an amount equal to the
difference until the credit is exhausted. If a credit is due
from Landlord on the Expiration Date, Landlord shall pay
Tenant the amount of the credit. The obligations of Tenant
and Landlord to make payments required under this Section
5.3 should survive the Expiration Date.
(d) Tenant's Proportionate Share of Project Operating Costs
in any Lease Year having less than 365 days shall be
appropriately prorated.
(e) If any dispute arises as to the amount of any
additional rent due hereunder Tenant shaft have the right
after reasonable notice and at reasonable times to inspect
Landlord's accounting records at Landlord's accounting
office and, if after such inspection Tenant still disputes
the amount of additional rent owed, a certification as to
the proper amount shall be made by Landlord's certified
public accountant, which certification shall be final and
conclusive. Tenant agrees to pay the cost of such
certification unless ills determined that Landlord's
original statement overstated Project Operating Costs by
more than five percent (5%).
5.4 Definition of Rent. All costs and expenses which
Tenant assumes or agrees to pay to Landlord under this
Lease shall be deemed additional rent (which, together
with the Base Rent is sometimes referred to as the "Rent").
The Rent shall be paid to the Building manager (or
other person) and at such place, as Landlord may from
time to time designate in writing, without any prior demand
therefor and without deduction or offset, in lawful money
of the United States of America.
5.5 Rent Control. If the amount of Rent or any other
payment due under this Lease violates the terms of any
governmental restrictions on such Rent or payment, then the
Rent or payment due during the period of such restrictions
shall be the maximum amount allowable under those
restrictions. Upon termination of the restrictions, Landlord
shall, to the extent it is legally permitted, recover from
Tenant the difference between the amounts received during
the period of the restrictions and the amounts Landlord
would have received had there been no restrictions.
5.6 Taxes Payable by Tenant. In addition to the Rent and
any other charges to be paid by Tenant hereunder, Tenant
shall reimburse Landlord upon demand for any and all taxes
payable by Landlord (other than net income taxes) which are
not otherwise reimbursable under this Lease, whether or not
now customary or within the contemplation of the parties1
where such taxes are upon, measured by or reasonably
attributable to (a) the cost or value of Tenant's equipment,
furniture, fixtures and other personal property located In
the Premises, or the cost or value of any leasehold
improvements made in or to the Premises by or for Tenant,
other than Building Standard Work made by Landlord,
regardless of whether title to such improvements is held by
Tenant or Landlord; (b) the gross or net Rent payable under
this Lease, including, without limitation, any rental or
gross receipts tax levied by any taxing authority with
respect to the receipt of the Rent hereunder; (c) the
possession, leasing, operation, management, maintenance,
alteration, repair, use or occupancy by Tenant of the
Premises or any portion thereof; or (d) this transaction or
any document to which Tenant is a party creating or
transferring an interest or an estate in the Premises; If it
becomes unlawful for Tenant to reimburse Landlord for any
costs as required under this Lease, the Base Rent shall be
revised to net Landlord the same not Rent after imposition
of any tax or other charge upon Landlord as would have been
payable to Landlord but for the reimbursement being
unlawful.
6. INTEREST AND LATE CHARGES.
If Tenant fails to pay when due any Rent or other amounts or
charges which Tenant is obligated to pay under the terms of
this Lease, the unpaid amounts shall bear interest at the
maximum rate then allowed by law. Tenant acknowledges that
the late payment of any Monthly Installment of Base Rent
will cause Landlord to lose the use of that money and incur
costs and expenses not contemplated under this Lease,
including without limitation, administrative and collection
costs and processing and accounting expenses, the exact
amount of which is extremely difficult to ascertain.
Therefore, in addition to interest, if any such installment
is not received by Landlord within ten (10) days from the
date it is due, Tenant shall pay Landlord a late charge
equal to five percent (5%) of such installment. Landlord and
Tenant agree that this late charge represents a reasonable
estimate of such costs and expenses and Is fair compensation
to Landlord for the loss suffered from such nonpayment by
Tenant. Acceptance of any interest or late charge shall not
constitute a waiver of Tenant's default with respect to such
non payment by Tenant nor prevent Landlord from exercising
any other rights or remedies available to Landlord under
this Lease.
8. TENANT'S USE OF THE PREMISES.
Tenant shall use the Premises solely for the purposes set
forth in Tenant's Use Clause. Tenant shall not use or occupy
the Premises in violation of law or any covenant, condition
or restriction affecting the Building or Project or the
certificate of occupancy Issued for the Building or Project,
and shall, upon notice from Landlord, immediately
discontinue any use of the Premises which is declared by any
governmental authority having jurisdiction to be a violation
of law or the certificate of occupancy. Tenant, at Tenant's
own cost and expense, shall comply with all laws,
ordinances, regulations, rules and/or any directions of any
governmental agencies or authorities having jurisdiction
which shall, by reason of the nature of Tenant's use or
occupancy of the Premises, impose any duty upon Tenant or
Landlord with respect to the Premises or its use or
occupation. A judgment of any court of competent
jurisdiction or the admission by Tenant in any action or
proceeding against Tenant that Tenant has violated any such
laws, ordinances, regulations, rules and/or directions In
the use of the Premises shall be deemed to be a conclusive
determination of that fact as between Landlord and Tenant.
Tenant shall not do or permit to be done anything which will
invalidate or increase the cost of any fire, extended
coverage or other insurance policy covering the Building or
Project and/or property located therein, and shall comply
with all rules, orders, regulations, requirements and
recommendations of the Insurance Services Office or any
other organization performing a similar function. Tenant
shall promptly upon demand reimburse Landlord for any
additional premium charged for such policy by reason of
Tenant's failure to comply with the provisions of this
Article. Tenant shall not door permit anything to be done in
or about the Premises which will in any way obstruct or
interfere with the rights of other tenants or occupants of
the Building or Project, or injure or annoy them, or use or
allow the Premises to be used for any improper, immoral,
unlawful or objectionable purpose, nor shall Tenant cause,
maintain or permit any nuisance in, on or about the
Premises. Tenant shall not commit or suffer to be committed
any waste in or upon the Premises.
9. SERVICES AND UTILITIES.
Provided that Tenant is not in default hereunder, Landlord
agrees to furnish to the Premises during generally
recognized business days, and during hours determined by
Landlord in its sole discretion, and subject to the Rules
and Regulations of the Building or Project, electricity and
heating, ventilation and air conditioning ("HVAC") as
required in Landlord's judgment for the comfortable use and
occupancy of the Premises. If Tenant desires HVAC at any
other time, Landlord shall use reasonable efforts to furnish
such service upon reasonable notice from Tenant and Tenant
shall pay Landlord's charges there for on demand. Landlord
shall also maintain and keep lighted the common stairs,
common entries and rest rooms in the Building. Landlord
shall not be in default hereunder or be liable for any
damages directly or indirectly resulting from, nor shall the
Rent be abated by reason of (i) the, installation, use or
interruption of use of any equipment in connection with the
furnishing of any of the foregoing services, (ii) failure to
furnish or delay in furnishing. any such services where such
failure or delay is caused by accident or any condition or
event beyond the reasonable control of Landlord, or by the
making of necessary repairs or improvements to the Premises,
Building or Project, or (iii) the limitation, curtailment or
rationing of, or restrictions on, use of water, electricity,
gas or any other form of energy serving the Premises,
Building or Project. Landlord shall not be liable under any
circumstances for a loss of or injury to property or
business, however occurring, through or In connection with
or incidental to failure to furnish any such services. If
Tenant uses heat generating machines or equipment in the
Premises which affect the temperature otherwise maintained
by the HVAC system, Landlord reserves the right to install
supplementary air conditioning units in the Premises and the
cost thereof, including the cost of Installation, operation
and maintenance thereof, shall be paid by Tenant to Landlord
upon demand by Landlord.
Tenant agrees to pay to Landlord promptly upon demand for
all utilities consumed as shown by said meters, at the rates
charged for such services by the utilities plus any
additional expense incurred in keeping account of the
utilities so consumed.
Nothing contained in this Article shall restrict Landlord's
right to require at any time additional separate metering of
utilities furnished to the Premises. In the event utilities
are separately metered, Tenant shall pay promptly upon
demand for all utilities consumed at utility rates charged
by the utility providers plus any additional expense
incurred by Landlord in keeping account of the utilities so
consumed. Tenant shall be responsible for the maintenance
and repair of any such meters at its sole cost.
Landlord shall furnish such services, if any, as are
customarily furnished to comparable facilities in the area.
10. CONDITION OF THE PREMISES.
Tenant's taking possession of the Premises shall be deemed
conclusive evidence that as of the date of taking possession
the Premises are in good order and satisfactory condition,
except for such matters as to which Tenant gave Landlord
notice on or before the Commencement Date. No promise of
Landlord to alter, remodel, repair or improve the Premises,
the Building or the Project and no representation, express
or implied, respecting any matter or thing relating to the
Premises, Building, Project or this Lease (including,
without limitation, the condition of the Premises, the
Building or the Project) have been made to Tenant by
Landlord or Its Broker or Sales Agent, other than as may be
contained herein or in a separate exhibit or addendum signed
by Landlord and Tenant.
11. CONSTRUCTION, REPAIRS AND MAINTENANCE.
a. Landlord's Obligations. Landlord shall perform Landlord's
Work to the Premises as described in Exhibit "C" Landlord
shall maintain in good order, condition and repair the
Building and all other portions of the Premises not the
obligation of Tenant or of any other tenant In the Building.
b. Tenant's Obligations.
(1) Tenant shall perform Tenant's Work to the Premises as
described in Exhibit "C"
(2) Tenant at Tenant's sole expense shall, except for
services furnished by Landlord pursuant to Article 9 hereof,
maintain the Premises in good order, condition and repair,
including the interior surfaces of the ceilings, walls and
floors, all doors, all interior windows, all plumbing, pipes
and fixtures, electrical wiring, switches and fixtures,
Building Standard furnishings and special items and
equipment installed by or at the expense of Tenant.
(3) Tenant shall be responsible for all repairs and
alterations in and to the Premises, Building and Project and
the facilities and systems thereof, the need for which
arises out of (i) Tenant's use or occupancy of the Premises,
(ii) the installation, removal, use or operation of Tenant's
Property (as defined in Article 13) in the Premises, (iii)
the moving of Tenant's Property into or out of the Building,
or (iv) the act, omission, misuse or negligence of Tenant,
its agents, contractors, employees or invitees.
* Prior to the date of this Lease, utility meters have been
installed for the Premises that measure the consumption of
various utilities only for the Premises and, in some cases,
other space leased by Tenant.
(4) If Tenant fails to maintain the Premises in good order,
condition and repair, Landlord shall give Tenant notice to
do such acts as are reasonably required to so maintain the
Premises. If Tenant fails to promptly commence such work and
diligently prosecute It to completion, then Landlord shall
have the right to do such acts and expend such funds at the
expense of Tenant as are reasonably required to per form
such work. Any amount so expended by Landlord shall be paid
by Tenant promptly alter demand with Interest at the prime
commercial rate then being charged by Norwest Bank, Denver
plus two percent (2%) per annum, from the date of such work,
but not to exceed the maximum rate then allowed by law.
Landlord shall have no liability to Tenant for any damage,
inconvenience, or Interference with the use of the Premises
by Tenant as a result of performing any such work.
c. Compliance with Law. Landlord and Tenant shall each do
all acts required to comply with all applicable laws,
ordinances, and rules of any public authority relating to
their respective maintenance obligations as set forth
herein.
d. Waiver by Tenant. Tenant expressly waives the benefits
of any statute now or hereafter in effect which would
otherwise afford the Tenant the right to make repairs at
Landlord's expense or to terminate this Lease because of
Landlord's failure to keep the Premises in good order,
condition and repair.
e. Load and Equipment Limits. Tenant shall not place a load
upon any floor of the Premises which exceeds the load per
square foot which such floor was designed to carry, as
determined by Landlord or Landlord's structural engineer.
The cost of any such determination made by Landlord's
structural engineer shall be paid for by Tenant upon demand.
Tenant shall not install business machines or mechanical
equipment which cause noise or vibration to such a degree as
to be objectionable to Landlord or other Building tenants.
f. Except as otherwise expressly provided in this Lease,
Landlord shall have no liability to Tenant nor shall
Tenant's obligations under this Lease be reduced or abated
in any manner whatsoever by reason of any inconvenience,
annoyance, Interruption or Injury to business arising from
Landlord's making any repairs or changes which Landlord is
required or permitted by this Lease or by any other tenant's
lease or required by law to make in or to any portion of the
Project, Building or the premises. Landlord shall
nevertheless use reasonable efforts to minimize any
interference with Tenant's business in the Premises.
g. Tenant shall give Landlord prompt notice of any damage to
or defective condition in any part or appurtenance of the
Building's mechanical, electrical, plumbing, HVAC or other
systems serving, located in, or passing through the
Premises.
h. Upon the expiration or earlier termination of this Lease,
Tenant shall return the Premises to Landlord clean and in
the same condition as on the date Tenant took possession,
except for normal wear and tear. Any damage to the Premises,
including any structural damage, resulting from Tenant's use
or from the removal of Tenant's fixtures, furnishings and
equipment pursuant to Section 13b shall be repaired by
Tenant at Tenant's expense.
12. ALTERATIONS AND ADDITIONS.
a. Tenant shall not make any additions, alterations or
improvements to the Premises without obtaining the prior
written consent of Landlord. Landlord's consent may be
conditioned on Tenant's removing any such additions,
alterations or improvements upon the expiration of the Term
and restoring the Premises to the same condition as on the
date Tenant took possession. All work with respect to any
addition, alteration or improvement shall be done in a good
and workmanlike manner by properly qualified and licensed
personnel approved by Landlord, and such work shall be
diligently prosecuted to completion. If any such work is
performed by a contractor selected by Tenant and approved by
Landlord, Tenant shall pay to Landlord, upon completion of
any such work, an administrative fee of five percent (5%) of
the cost of the work. If any such work is performed by
Landlord's contractor, Tenant shall pay to Landlord upon
completion of any such work, an administrative fee of
fifteen percent (15%) of the cost of the work.
b. Tenant shall pay the costs of any work done on the
Premises pursuant to Section 12a, and shall keep the
Premises, Building and Project free and clear of liens of
any kind. Tenant shall indemnify, defend against and keep
Landlord free and harmless from all liability, loss, damage,
costs, attorneys' fees and any other expense incurred on
account of claims by any person performing work or
furnishing materials or supplies for Tenant or any person
claiming under Tenant.
Tenant shall keep Tenant's leasehold Interest, and any
additions or improvements which are or become the property
of Landlord under this Lease, free and clear of all
attachment or judgment liens. Before the actual commencement
of any work for which a claim or lien may be filed, Tenant
shall give Landlord notice of the intended commencement date
a sufficient time before that date to enable Landlord to
post notices of non-responsibility or any other notices
which Landlord deems necessary for the proper protection of
Landlord's interest in the Premises, Building or the
Project, and Landlord shall have the right to enter the
Premises and post such notices at any reasonable time.
c. Landlord may require, at Landlord's sole option, that
Tenant provide to Landlord, at Tenant's expense, a lien and
completion bond in an amount equal to at least one and one-
half (1 1/2) times the total estimated cost of any additions,
alterations or improvements to be made in or to the
Premises, to protect Landlord against any liability for
mechanic's and materialmen's liens and to insure timely
completion of the work. Nothing contained in this Section
12c shall relieve Tenant of its obligation under Section 12b
to keep the Premises, Building and Project free of all
liens.
d. Unless their removal is required by Landlord as provided
in Section 12a, all additions, alterations and Improvements
made to the Premises shall become the property of Landlord
and be surrendered with the Premises upon the expiration of
the Term: provided, however, Tenant's equipment, machinery
and trade fixtures which can be removed without damage to
the Premises shall remain the property of Tenant and may be
removed, subject to the provisions of Section 13b.
13. LEASEHOLD IMPROVEMENTS; TENANT'S PROPERTY
a. All fixtures, equipment, improvements and appurtenances
attached to or built into the Premises at the commencement
of or during the Term, whether or not by or at the expense
of Tenant ("Leasehold Improvements"), shall be and remain a
part of the Premises, shall be the property of Landlord and
shall not be removed by Tenant, except as expressly provided
in Section 13b.
b. All movable partitions, business and trade fixtures,
machinery and equipment communications equipment and office
equipment located in the Premises and acquired by or for the
account of Tenant, without expense to Landlord, which can be
removed without structural damage to the Building, and all
furniture, furnishings and other articles of movable
personal property owned by Tenant and located In the
Premises (collectively "Tenant's Property") shall be and
shall remain the property of Tenant and may be removed by
Tenant at any time during the Term; provided that If any of
Tenant's Property is removed, Tenant shall promptly repair
any damage to the Premises or to the Building resulting from
such removal.
14. RULES AND REGULATIONS.
Tenant agrees to comply with (and cause its agents,
contractors, employees and invitees to comply with) the
rules and regulations attached hereto as Exhibit "D" and
with such reasonable modifications thereof end additions
thereto as Landlord may from time to time make. Landlord
shall not be responsible for any violation of said rules and
regulations by other tenants or occupants of the Building or
Project.
15. CERTAIN RIGHTS RESERVED BY LANDLORD.
Landlord reserves the following rights, exercisable without
liability to Tenant for (a) damage or injury to property,
person or business, (b) causing an actual or constructive
eviction from the Premises, or (c) disturbing Tenant's use
or possession of the Premises:
a. To name the Building and Project and to change the name
or street address of the Building or Project;
b. To install and maintain all signs on the exterior and
interior of the Building and Project, provided that Tenant
shall have the right to install a sign for its business on
the exterior of the Building subject to Landlord's
reasonable approval of plans for same;
c. To have pass keys to the Premises and all doors within
the Premises, excluding Tenant's vaults and safes;
d. At any time during the Term, and on reasonable prior
notice to Tenant, to inspect the Premises, and to show the
Premises to any prospective purchaser or mortgagee of the
Project, or to any assignee of any mortgage on the Project,
or to others having an interest in the Project or Landlord,
and during the last six months of the Term, to show the
Premises to prospective tenants thereof; and
e. To enter the Premises for the purpose of making
Inspections, repairs, alterations, additions or improvements
to the Premises or the Building (including, without
limitation, checking, calibrating, adjusting or balancing
controls and other parts of the HVAC system), and to take
all steps as maybe necessary or desirable for the safety,
protection, maintenance or preservation of the Premises or
the Building or Landlord's interest therein, or as may be
necessary or desirable for the operation or improvement of
the Building or In order to comply with laws, orders or
requirements of governmental or other authority. Landlord
agrees to use its best efforts (except in an emergency) to
minimize interference with Tenant's business in the Premises
in the course of any such entry.
16. ASSIGNNIENT AND SUBLETTING.
No assignment of this Lease or sublease of all or any part
of the Premises shall be permitted, except as provided in
this Article 16.
a. Tenant shall not, without the prior written consent of
Landlord, which consent shall not he unreasonably withheld,
assign or hypothecate this Lease or any interest herein or
sublet the Premises or any part thereof, or permit the use
of the Premises by any party other than Tenant. Any of the
foregoing acts without such consent shall be void and shall,
at the option of Landlord, terminate this Lease. This Lease
shall not, nor shall any interest of Tenant herein, be
assignable by operation of law without the written consent
of Landlord.
b. If at any time or from time to time during the Term
Tenant desires to assign this Lease or sublet all or any
part of the Premises, Tenant shall give notice to Landlord
setting forth the terms and provisions of the proposed
assignment or sublease, and the identity of the proposed
assignee or subtenant. Tenant shall promptly supply Landlord
with such information concerning the business background and
financial condition of such proposed assignee or subtenant
as Landlord may reasonably request. Landlord shall, within
twenty (20) days after Tenant's notice is given, either
approve or, in Landlord's reasonable judgment, disapprove
the proposed assignment or sublease. If Landlord approves
the proposed assignment or sublease, Tenant may assign the
Lease or sublet such space to such proposed assignee or
subtenant on the following further conditions:
(1 ) The assignment or sublease shall be on the same terms
set forth in the notice given to Landlord;
(2) No assignment or sublease shall be valid and no
assignee or sublessee shall take possession of the Premises
until an executed counterpart of such assignment or sublease
has been delivered to Landlord; and
(3 ) No assignee or sublessee shall have a further right to
assign or sublet except on the terms herein contained;
c. Notwithstanding the provisions of paragraphs a and b
above, Tenant may assign this Lease or sublet the Premises
or any portion thereof, without Landlord's consent and
without extending any recapture or termination option to
Landlord, to any corporation which controls, Is controlled
by or is under common control with Tenant, or to any
corporation resulting from a merger or consolidation with
Tenant, or to any person or entity which acquires all the
assets of Tenant's business as a going concern, provided
that (i) the assignee or sublessee assumes, in full, the
obligations of Tenant under this Lease, (ii) Tenant remains
fully liable under this Lease, and (iii) the use of the
Premises under Article 8 remains unchanged.
d. No subletting or assignment shall release Tenant of
Tenant's obligations under the Lease or alter the primary
liability of Tenant to pay the Rent and to perform all other
obligations to be performed by Tenant hereunder. The
acceptance of Rent by Landlord from any other person shall
not be deemed to be a waiver by Landlord of any provision
hereof. Consent to one assignment or subletting shall not be
deemed consent to any subsequent assignment or subletting.
In the event of default by an assignee or subtenant 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 assignee, subtenant or successor. Landlord may consent
to subsequent assignments of the Lease or sublettings or
amendments or modifications to the 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 shall not relieve Tenant of liability
under this Lease.
17. HOLDING OVER.
If after expiration of the Term, Tenant remains in
possession of the Premises with Landlord's permission
(express or implied), Tenant shall become a tenant from
month to month only, upon all the provisions of this Lease
(except as to term and Base Rent), but the "Monthly
Installments of Base Rent" payable by Tenant shall be
increased to one hundred twenty-five percent (125%) of the
Monthly Installments of Base Rent payable by Tenant at the
expiration of the Term. Such monthly rent shall be payable
in advance on or before the first day of each month. If
either party desires to terminate such month to month
tenancy, it shall give the other party not less than thirty
(30) days advance written notice of the date of termination.
18. SURRENDER OF PREMISES.
a. Tenant shall peaceably surrender the Premises to Landlord
on the Expiration Date, in broom-clean condition and in as
good condition as when Tenant took possession. except for
(i) reasonable wear and tear, (ii) loss by fire or other
casualty, and (iii) loss by condemnation. Tenant shall, on
Landlord's request. remove Tenant's Property on or before
the Expiration Date and promptly repair all damage to the
Premises or Building caused by such removal.
b. If Tenant abandons or surrenders the Premises, or is
dispossessed by process of law or otherwise, any of Tenant's
Property left on the Premises shall be deemed to be
abandoned, and, at Landlord's option, title shall pass to
Landlord under this Lease as by a xxxx of sale. If Landlord
elects to remove all or any part of such Tenant's Property,
the cost of removal, Including repairing any damage to the
Premises or Building caused by such removal, shall be paid
by Tenant. On the Expiration Date Tenant shall surrender all
keys to the Premises.
19. DESTRUCTION OR DAMAGE.
a. If the Premises or the portion of the Building necessary for
Tenant's occupancy is damaged by fire, earthquake, act of God, the
elements or other casualty, Landlord shall, subject to the provisions
of this Article, promptly repair the damage, if such repairs can, in
Landlords reasonable opinion. be completed within one hundred eighty
(180) days. If Landlord determines that repairs can be completed
within one hundred eighty (180) days, this Lease shall remain In full
force and effect, except that if such damage is not the result of the
negligence or willful misconduct of Tenant or Tenant's agents,
employees, contractors, licensees or invitees, the Base Rent shall be
abated to the extent Tenant's use of the Premises is impaired,
commencing with the date of damage and continuing until completion of
the repairs required of Landlord under Section 19d.
b. See Addendum One - Additional Provisions.
c. See Addendum One - Additional Provisions.
d. If the Premises are to be repaired under this Article,
Landlord shall repair at its cost any Injury or damage to
the Building and Building Standard Work in the Premises.
Tenant shall be responsible at its sole cost and expense for
the repair, restoration and replacement of any other
Leasehold improvements and Tenant's Property. Landlord
shall not be liable for any loss of business, Inconvenience
or annoyance arising from any repair or restoration of any
portion of the Premises, Building or Project as a result of
any damage from fire or other casualty.
e. This Lease shall be considered an express agreement
governing any case of damage to or destruction of the
Premises, Building or Project by fire or other casualty, and
any present or future law which purports to govern the
rights of Landlord and Tenant In such circumstances in the
absence of express agreement, shall have no application.
20. EMINENT DOMAIN.
a. If the whole of the Building or Premises is lawfully
taken by condemnation or in any other manner for any public
or quasi public purpose, this Lease shall terminate as of
the date of such taking, and Rent shall be prorated to such
date. If less than the whole of the Building or Premises is
so taken, this Lease shall be unaffected by such taking,
provided that (i) Tenant shall have the right to terminate
this Lease by notice to Landlord given within ninety (90)
days after the date of such taking if twenty percent (20%)
or more of the Premises is taken and the remaining area of
the Premises is not reasonably sufficient for Tenant to
continue operation of its business, and (ii) Landlord shall
have the right to terminate this Lease by notice to Tenant
given within ninety (90) days after the date of such taking.
If either Landlord or Tenant so elects to terminate this
Lease, the Lease shall terminate on the thirtieth (30th) day
after either such notice. The Rents shall be prorated to the
date of termination. If this Lease continues in force upon
such partial taking, the Base Rent and Tenant's
Proportionate Share shall be equitably adjusted according to
the remaining Rentable Area of the Premises and Project.
b. In the event of any taking, partial or whole, all of the
proceeds of any award, judgment or settlement payable by the
condemning authority shall be the exclusive property of
Landlord, and Tenant hereby assigns to Landlord all of Its
right, title and interest In any award, judgment or
settlement from the condemning authority. Tenant, however,
shall have the right, to the extent that Landlord's award is
not reduced or prejudiced, to claim from the condemning
authority (but not from Landlord) such compensation as may
be recoverable by Tenant in its own right for relocation
expenses and damage to Tenant's personal property.
c. In the event of a partial taking of the Premises which
does not result in a termination of this Lease, Landlord
shall restore the remaining portion of the Premises as
nearly as practicable to its condition prior to the
condemnation or taking, but only to the extent of Building
Standard Work. Tenant shall be responsible at its sole cost
and expense for the repair, restoration and replacement of
any other Leasehold Improvements and Tenant's Property.
21. INDEMNIFICATION.
a. Tenant shall indemnify and hold Landlord harmless against
and from liability and claims of any kind for loss or damage
to property of Tenant or any other person, or for any injury
to or death of any person, arising out of: (1) Tenant's use
and occupancy of the Premises, or any work, activity or
other things allowed or suffered by Tenant to be done In, on
or about the Premises; (2) any breach or default by Tenant
of any of Tenant's obligations under this Lease; or (3) any
negligent or otherwise tortious act or omission of Tenant,
its agents, employees, invitees or contractors. Tenant shall
at Tenant's expense, and by counsel satisfactory to
Landlord, defend Landlord In any action or proceeding
arising from any such claim and shall Indemnify Landlord
against all costs, attorneys' fees, expert witness fees and
any other expenses incurred in such action or proceeding. As
a material part of the consideration for Landlord's
execution of this Lease, Tenant hereby assumes all risk of
damage or injury to any person or property in, on or about
the Premises from any cause.
b. Landlord shall not be liable for injury or damage which
may be sustained by the person or property of Tenant, its
employees, invitees or customers, or any other person in or
about the Premises, caused by or resulting from fire, steam,
electricity, gas, water or rain which may leak or flow from
or into any part of the Premises, or from the breakage,
leakage, obstruction or other defects of pipes, sprinklers,
wires, appliances, plumbing, air conditioning or lighting
fixtures, whether such damage or injury results from
conditions arising upon the Premises or upon other portions
of the Building or Project or from other sources. Landlord
shall not be liable for any damages arising from any act or
omission of any other tenant of the Building or Project.
22. TENANT'S INSURANCE.
a. All insurance required to be carried by Tenant hereunder
shall be issued by responsible insurance companies
acceptable to Landlord and Landlord's lender and qualified
to do business in the State. Each policy shall name
Landlord, and at Landlord's request any mortgagee of
Landlord, as an additional insured, as their respective
interests may appear. Each policy shall contain (i) a cross-
liability endorsement, (ii) a provision that such policy and
the coverage evidenced thereby shall be primary and non-
contributing with respect to any policies carried by
Landlord and that any coverage carried by Landlord shall be
excess insurance, and (iii) a waiver by the insurer of any
right of subrogation against Landlord, its agents, employees
and representatives, which arises or might arise by reason
of any payment under such policy or by reason of any act or
omission of Landlord, its agents, employees or
representatives. A copy of each paid up policy
(authenticated by the insurer) or certificate of the insurer
evidencing the existence and amount of each insurance policy
required hereunder shall be delivered to Landlord before the
date Tenant Is first given the right of possession of the
Premises, and thereafter within thirty (30) days after any
demand by Landlord therefor. Landlord may, at any time and
from time to time, inspect and/or copy any insurance
policies required to be maintained by Tenant hereunder. No
such policy shall be cancelable except after twenty (20)
days written notice to Landlord and Landlord's lender.
Tenant shall furnish Landlord with renewals or "binders" of
any such policy at least ten (10) days prior to the
expiration thereof Tenant agrees that if Tenant does not
take out and maintain such insurance, Landlord may (but
shall not be required to) procure said insurance on Tenant's
behalf and charge the Tenant the premiums together with a
twenty-five percent (25%) handling charge, payable upon
demand. Tenant shall have the right to provide such
insurance coverage pursuant to blanket policies obtained by
the Tenant, provided such blanket policies expressly afford
coverage to the Premises, Landlord, Landlord's mortgagee and
Tenant as required by this Lease.
b. Beginning on the date Tenant is given access to the
Premises for any purpose and continuing until expiration of
the Term, Tenant shall procure, pay for and maintain in
effect policies of casualty Insurance covering (i) all
Leasehold improvements (including any alterations, additions
or improvements as may be made by Tenant pursuant to the
provisions of Article 12 hereof), and (ii) trade fixtures,
merchandise and other personal property from time to time
in, on or about the Premises, in an amount not less than one
hundred percent (100%) of their actual replacement cost from
time to time, providing protection against any peril
included within the classification "Fire and Extended
Coverage" together with insurance against sprinkler damage,
vandalism and malicious mischief. The proceeds of such
insurance shall be used for the repair or replacement of the
property so insured. Upon termination of this Lease
following a casualty as set forth herein, the proceeds under
(i) shall be paid to Landlord, and the proceeds under (ii)
above shall be paid to Tenant.
c. Beginning on the date Tenant is given access to the
Premises for any purpose and continuing until expiration of
the Term, Tenant shall procure, pay for and maintain in
effect workers' compensation insurance as required by law
and comprehensive public liability and property damage
insurance with respect to the construction of improvements
on the Premises, the use, operation or condition of the
Premises and the operations of Tenant in, on or about the
Premises, providing personal Injury and broad form property
damage coverage for not less than One Million Dollars
($1,000,000.00) combined single limit for bodily injury,
death and property damage liability.
d. Not less than every three (3) years during the Term,
Landlord and Tenant shall discuss whether to increase any or
all of Tenant's insurance policy limits for all insurance to
be carried by Tenant as set forth in this Article. In the
event Landlord and Tenant cannot mutually agree upon whether
any such increases are necessary or, if so, the amounts
thereof, then Tenant agrees that all insurance policy limits
as set forth in this Article shall be adjusted for increases
in the cost of living in the same manner as is set forth in
Section 5.2 hereof for the adjustment of the Base Rent.
23. WAIVER OF SUBROGATION.
Landlord and Tenant each hereby waive all rights of recovery
against the other and against the officers, employees,
agents and representatives of the other, on account of loss
by or damage to the waiving party of its property or the
property of others under its control1 to the extent that
such loss or damage is insured against under any fire and
extended coverage insurance policy which either may have in
force at the time of the loss or damage. Tenant shall, upon
obtaining the policies of insurance required under this
Lease, give notice to its insurance carrier or carriers that
the foregoing mutual waiver of subrogation is contained in
this Lease.
24. SUBORDINATION AND ATTORNMENT.
Upon written request of Landlord, or any first mortgagee or
first deed of trust beneficiary of Landlord, or ground
lessor of Landlord, Tenant shall, in writing, subordinate
its rights under this Lease to the lien of any first
mortgage or first deed of trust, or to the interest of any
lease in which Landlord is lessee, and to all advances made
or hereafter to be made thereunder. However, before signing
any subordination agreement, Tenant shall have the right to
obtain from any lender or lessor or Landlord requesting such
subordination, an agreement in writing providing that, as
long as Tenant is not in default hereunder, this Lease shall
remain in effect for the full Term. The holder of any
security interest may, upon written notice to Tenant, elect
to have this Lease prior to its security interest regardless
of the time of the granting or recording of such security
interest in the event of any foreclosure sale, transfer in
lieu of foreclosure or termination of the lease in which
Landlord is lessee, Tenant shall attorn to the purchaser,
transferee or lessor as the case may be, and recognize that
party as Landlord under this Lease, provided such party
acquires and accepts the Premises subject to this Lease.
25. TENANT ESTOPPEL CERTIFICATES.
Within ten (10) days after written request from Landlord,
Tenant shall execute and deliver to Landlord or Landlord's
designee, a written statement certifying (a) that this Lease
is unmodified and in full force and effect, or is in full
force and effect as modified and stating the modifications;
(b) the amount of Base Rent and the date to which Base Rent
and additional rent have been paid in advance; (c) the
amount of any security deposited with Landlord; and (d) that
Landlord is not In default hereunder or, if Landlord is
claimed to be in default, stating the nature of any claimed
default. Any such statement may be relied upon by a
purchaser, assignee or lender. Tenant's failure to execute
and deliver such statement within the time required shall at
Landlord's election be a default under this Lease and shall
also be conclusive upon Tenant that: (1) this Lease is in
full force and effect and has not been modified except as
represented by Landlord; (2) there are no uncured defaults
in Landlord's performance and that Tenant has no right of
offset, counter-claim or deduction against Rent; and (3) not
more than one month's Rent has been paid in advance.
26. TRANSFER OF LANDLORD'S INTEREST.
In the event of any sale or transfer by Landlord of the
Premises, Building or Project, and assignment of this Lease
by Landlord, Landlord shall be and is hereby entirely freed
and relieved of any and all liability and obligations
contained in or derived from this Lease arising out of any
act, occurrence or omission relating to the Premises,
Building, Project or Lease occurring after the consummation
of such sale or transfer, providing the purchaser shall
expressly assume all of the covenants and obligations of
Landlord under this Lease. If any security deposit or
prepaid Rent has been paid by Tenant, Landlord may transfer
the security deposit or prepaid Rent to Landlord's successor
and upon such transfer, Landlord shall be relieved of any
and all further liability with respect thereto.
27. DEFAULT
27.1. Tenants' Default. The occurrence of any one or more of
the following events shall constitute a default and breach
of this Lease by Tenant:
b. If Tenant fails to pay any Rent or any other charges
required to be paid by Tenant under this Lease and such
failure continues for ten (10) days after such payment is
due and payable; or
c. If Tenant fails to promptly and fully perform any other
covenant, condition or agreement contained in this Lease and
such failure continues for thirty (30) days after written
notice thereof from Landlord to Tenant; or
d. If a writ of attachment or execution Is levied on this
Lease or on any of Tenant's Property; or
e. If Tenant makes a general assignment for the benefit of
creditors, or provides for an arrangement, composition,
extension or adjustment with its creditors; or
f. If Tenant files a voluntary petition for relief or if a
petition against Tenant in a proceeding under the federal
bankruptcy laws or other insolvency laws is filed and not
withdrawn or dismissed within forty-five (45) days
thereafter, of if under the provisions of any law providing
for reorganization or winding up of corporations, any court
of competent Jurisdiction assumes jurisdiction, custody or
control of Tenant or any substantial part of its property
and such jurisdiction, custody or control remains in force
unrelinquished, unstayed or unterminated for a period of
forty-five (45) days; or
g. If in any proceeding or action in which Tenant is a
party, a trustee, receiver, agent or custodian is appointed
to take charge of the Premises or Tenant's Property (or has
the authority to do so for the purpose of enforcing a fine
against the Premises or Tenant's Property; or
h. If Tenant is a partnership or consists of more than one
(1) person or entity, if any partner of the partnership or
other person or entity is involved in any of the acts or
events described in subparagraphs d through g above.
27.2. Remedies. In the event of Tenant's default hereunder,
then in addition to any other rights or remedies Landlord
may have under any law, Landlord shall have the right, at
Landlord's option, without further notice or demand of any
kind to do the following:
a. Terminate this Lease and Tenant's right to possession of
the Premises and reenter the Premises and take possession
thereof, and Tenant shall have no further claim to the
Premises or under this Lease; or
b. Continue this Lease in effect, reenter and occupy the
Premises for the account of Tenant, and collect any unpaid
Rent or other charges which have or thereafter become due
and payable; or
c. Reenter the Premises under the provisions of subparagraph
b, and thereafter elect to terminate this Lease and Tenant's
right to possession of the Premises.
If Landlord reenters the Premises under the provisions of
subparagraphs b or c above, Landlord shall not be deemed to
have terminated this Lease or the obligation of Tenant to
pay any Rent or other charges thereafter accruing unless
Landlord notifies Tenant in writing of Landlord's election
to terminate this Lease. in the event of any reentry or
retaking of possession by Landlord, Landlord shall have the
right, but not the obligation, to remove all or any part of
Tenant's Property in the Premises and to place such property
in storage at a public warehouse at the expense and risk of
Tenant. If Landlord elects to relet the Premises for the
account of Tenant, the rent received by Landlord from such
reletting shall be applied as follows: first, to the payment
of any Indebtedness other than Rent due hereunder from
Tenant to Landlord; second, to the payment of any costs of
such reletting; third, to the payment of the cost of any
alterations or repairs to the Premises: fourth to the
payment of Rent due and unpaid hereunder; and the balance,
if any, shall be held by Landlord and applied in payment of
future Rent as it becomes due. If that portion of rent
received from the reletting which is applied against the
Rent due hereunder is less than the amount of the Rent due,
Tenant shall pay the deficiency to Landlord promptly upon
demand by Landlord. Such deficiency shall be calculated and
paid monthly. Tenant shall also pay to Landlord, as soon as
determined, any costs and expenses incurred by Landlord in
connection with such reletting or in making alterations and
repairs to the Premises, which are not covered by the rent
received from the reletting.
Should Landlord elect to terminate this Lease under the
provisions of subparagraph a or c above, Landlord may
recover as damages from Tenant the following:
1. Past Rent. The worth at the time of the award of any
unpaid Rent which had been earned at the time of
termination; plus
2. Rent Prior to Award. The worth at the time of the 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 rental loss that Tenant proves could have
been reasonably avoided; plus
3. Rent After Award. The worth at the time of the award of
the amount by which the unpaid Rent for the balance of the
Term after the time of award exceeds the amount of the
rental loss that Tenant proves could be reasonably avoided;
plus
4. Proximately Caused Damages. Any other amount necessary to
compensate Landlord for all detriment proximately caused by
Tenant's failure to perform its obligations under this Lease
or which in the ordinary course of things would be likely to
result therefrom, including, but not limited to, any costs
or expenses (including attorneys' fees), incurred by
Landlord in (a) retaking possession of the Premises, (b)
maintaining the Premises after Tenant's default, (c)
preparing the Premises for reletting to a new tenant,
including any repairs or alterations, and (d) reletting the
Premises, including broker's commissions.
"The worth at the time of the award" as used in
subparagraphs 1 and 2 above, is to be computed by allowing
interest at the rate of ten percent (10%) per annum. "The
worth at the time of the award" as used in subparagraph 3
above, is to be computed by discounting the amount at the
discount rate of the Federal Reserve Bank situated nearest
to the Premises at the time of the award plus one percent
(1%).
The waiver by Landlord of any breach of any term, covenant
pr condition of this Lease shall not be deemed a waiver of
such term, covenant or condition or of any subsequent breach
of the same or any other term, covenant or condition.
Acceptance of Rent by Landlord subsequent to any breach
hereof shall not be deemed a waiver of any preceding breach
other than the failure to pay the particular Rent so
accepted, regardless of Landlord's knowledge of any breach
at the time of such acceptance of Rent. Landlord shall not
be deemed to have waived any term, covenant or condition
unless Landlord gives Tenant written notice of such waiver.
27.3 Landlord's Default. If Landlord fails to perform any
covenant, condition or agreement contained in this Lease
within thirty (30) days after receipt of written notice from
Tenant specifying such default, or if such default can not
reasonably be cured within thirty (30) days, if Landlord
fails to commence to cure within that thirty (30) day
period, then Landlord shall be liable to Tenant for any
damages sustained by Tenant as a result of Landlord's
breach; provided, however, it is expressly understood and
agreed that if Tenant obtains a money judgment against
Landlord resulting from any default or other claim arising
under this Lease, that judgment shall be satisfied only out
of the rents, issues, profits, and other income actually
received on account of Landlord's right, title and interest
in the Premises, Building or Project, and no other real,
personal or mixed property of Landlord (or of any of the
partners which comprise Landlord, if any) wherever situated,
shall be subject to levy to satisfy such judgment. If, after
notice to Landlord of default, Landlord (or any first
mortgagee or first deed of trust beneficiary of Landlord)
fails to cure the default as provided herein, then Tenant
shall have the right to cure that default at Landlord's
expense. Tenant shall not have the right to terminate this
Lease or to withhold, reduce or offset any amount against
any payments of Rent or any other charges due and payable
under this Lease except as otherwise specifically provided
herein.
28. BROKERAGE FEES.
Tenant warrants and represents that it has not dealt with
any real estate broker or agent in connection with this
Lease or its negotiation except those noted in Section 2.c.
Tenant shall. indemnify and hold Landlord harmless from any
cost, expense or liability (including costs of suit and
reasonable attorneys' fees) for any compensation, commission
or fees claimed by any other real estate broker or agent in
connection with this Lease or its negotiation by reason of
any act of Tenant.
29. NOTICES.
All notices, approvals and demands permitted or required to
be given under this Lease shall be in writing and deemed
duly served or given if personally delivered or sent by
certified or registered U.S. mail, postage prepaid, and
addressed as follows: (a) if to Landlord, to Landlord's
Mailing Address and to the Building manager, and (b) if to
Tenant, to Tenant's Mailing Address; provided, however,
notices to Tenant shall be deemed duly served or given if
delivered or mailed to Tenant at the Premises. Landlord and
Tenant may from time to time by notice to the other
designate another place for receipt of future notices.
30. GOVERNMENT ENERGY OR UTILITV CONTROLS.
In the event of imposition of federal, state or local
government controls, rules, regulations, or restrictions on
the use or consumption of energy or other utilities during
the Term, both Landlord and Tenant shall be bound thereby.
In the event of a difference in interpretation by Landlord
and Tenant of any such controls, the interpretation of
Landlord shall prevail, and Landlord shall have the right to
enforce compliance therewith, including the right of entry
into the Premises to effect compliance.
32. QUIET ENJOYMENT.
Tenant, upon paying the Rent and performing all of its
obligations under this Lease, shall peaceably and quietly
enjoy the Premises, subject to the terms of this Lease and
to any mortgage, lease, or other agreement to which this
Lease may be subordinate.
33. OBSERVANCE OF LAW.
Tenant shall not use the Premises or permit anything to be
done in or about the Premises which will in any way conflict
with any law, statute, ordinance or governmental rule or
regulation now in force or which may hereafter be enacted or
promulgated. Tenant shall, at its sole cost and expense,
promptly comply with all laws, statutes, ordinances and
governmental rules, regulations or requirements now in force
or which may hereafter be In force, and with the
requirements of any board of fire insurance underwriters or
other similar bodies now or hereafter constituted, relating
to, or affecting the condition, use or occupancy of the
Premises, excluding structural changes not related to or
affected by Tenant's improvements or acts. The judgment of
any court of competent jurisdiction or the admission of
Tenant in any action against Tenant, whether Landlord is a
party thereto or not, that Tenant has violated any law,
ordinance or governmental rule, regulation or requirement,
shall be conclusive of that fact as between Landlord and
Tenant.
34. FORCE MAJEURE.
Any prevention1 delay or stoppage of work to be performed by
Landlord or Tenant which is due to strikes, labor disputes,
inability to obtain labor, materials, equipment or
reasonable substitutes therefor, acts of God, governmental
restrictions or regulations or controls, judicial orders,
enemy or hostile government actions, civil commotion, fire
or other casualty, or other causes beyond the reasonable
control of the party obligated to perform hereunder, shall
excuse performance of the work by that party for a period
equal to the duration of that prevention, delay or stoppage.
Nothing in this Article 34 shall excuse or delay Tenant's
obligation to pay Rent or other charges under this Lease.
35. CURING TENANT'S DEFAULTS.
If Tenant defaults in the performance of any of its
obligations under this Lease, Landlord may (but shall not be
obligated to) without waiving such default, perform the same
for the account at the expense of Tenant. Tenant shall pay
Landlord all costs of such performance promptly upon receipt
of a xxxx therefor.
36. SIGN CONTROL.
Tenant shall not affix, paint, erect or in scribe any sign,
projection, awning, signal or advertisement of any kind to
any part of the Premises, Building or Project, including
without limitation, the inside or outside of windows or
doors, without the written consent of Landlord. Landlord
shall have the right to remove any signs or other matter,
installed without Landlord's permission, without being
liable to Tenant by reason of such removal, and to charge
the cost of removal to Tenant as additional rent hereunder,
payable within ten (10) days of written demand by Landlord.
37. MISCELLANEOUS.
a. Accord and Satisfaction, Allocation Of Payments. No
payment by Tenant or receipt by Landlord of a lesser amount
than the Rent provided for in this Lease shall be deemed to
be other than on account of the earliest due Rent, nor shall
any endorsement or statement on any check or letter
accompanying any check or payment as Rent 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 the Rent or pursue any other remedy provided
for in this Lease. In connection with the foregoing,
Landlord shall have the absolute right in its sole
discretion to apply any payment received from Tenant to any
account or other payment of Tenant then not current and due
or delinquent.
b. Addenda. If any provision contained in an addendum to
this Lease is inconsistent with any other provision herein,
the provision contained in the addendum shall control,
unless otherwise provided in the addendum.
c. Attorneys' Fees. If any action or proceeding is brought
by either party against the other pertaining to or arising
out of this Lease, the finally prevailing party shall be
entitled to recover all costs and expenses, including
reasonable attorneys' fees, incurred on account of such
action or proceeding.
d. Captions, Articles And Section Numbers. The captions
appearing within the body of this Lease have been inserted
as a matter of convenience and for reference only and in no
way define, limit or enlarge the scope or meaning of this
Lease. All references to Article and Section numbers refer
to Articles and Sections in this Lease.
e. Changes Requested By Lender. Neither Landlord or Tenant
shall unreasonably withhold its consent to changes or
amendments to this Lease requested by the lender on
Landlord's Interest, so long as these changes do not alter
the basic business terms of this lease or otherwise
materially diminish any rights or materially increase any
obligations of the party from whom consent to such change or
amendment is requested.
f. Choice of Law This Lease shall be construed and
enforced in accordance with the laws of the State.
g. Consent. Notwithstanding anything contained in this
Lease to the contrary, Tenant shall have no claim, and
hereby waives the right to any claim against Landlord for
money damages by reason of any refusal, withholding or
delaying by Landlord of any consent, approval or statement
of satisfaction, and in such event, Tenant's only remedies
therefor shall be an action for specific performance,
injunction or declaratory judgment to enforce any right to
such consent, etc.
h. Corporate Authority. If tenant is a corporation, each
individual signing this Lease on behalf of Tenant represents
and warrants that he is duly authorized to execute and
deliver this Lease on behalf of the corporation and that
this Lease is binding on Tenant in accordance with its
terms. Tenant shall at Landlord's request, deliver a
certified copy of a resolution of its board of directors
authorizing such execution.
i. Counterparts. This Lease may be executed in
multiple counterparts, all of which shall constitute one and
the same Lease.
j. Execution of Lease; No Option. The submission of this
Lease to Tenant shall be for examination purposes only, and
does not and shall not constitute a reservation of or option
for Tenant to lease, or otherwise create any interest of
Tenant in the Premises or any other premises within the
Building or Project. Execution of this Lease by Tenant and
its return to Landlord shall not be binding on Landlord
notwithstanding any time interval, until Landlord has in
fact signed and delivered this Lease to Tenant.
k. Furnishing of Financial Statements; Tenant's
Representations. In order to induce Landlord to enter into
this Lease Tenant agrees that it shall promptly furnish
Landlord, from time to time, upon Landlord's written
request, with financial statements reflecting Tenant's
current financial condition. Tenant represents and warrants
that all financial statements, records and information
furnished by Tenant to Landlord in connection with this
Lease are true, correct and complete in all material
respects.
l. Further Assurances. The parties agree to promptly sign
all documents reasonably requested to give effect to the
provisions of this Lease.
m. Mortgagee Protection. Tenant agrees to send by certified
or registered mail to any first mortgagee or first deed of
trust beneficiary of Landlord whose address has been
furnished to Tenant, a copy of any notice of default served
by Tenant on Landlord. If Landlord fails to cure such
default within the time provided for in this Lease, such
mortgagee or beneficiary shall have an additional thirty
(30) days to cure such default; provided that If such
default cannot reasonably be cured within that thirty (30)
day period, then such mortgagee or beneficiary shall have
such additional time to cure the default as is reasonably
necessary under the circumstances.
n. Prior Agreements; Amendments. This Lease contains all of
the agreements of the parties with respect to any matter
covered or mentioned in this Lease, and no prior agreement
or understanding pertaining to any such matter shall be
effective for any purpose. No provisions of this Lease may
be amended or added to except by an agreement in writing
signed by the parties or their respective successors in
interest.
o. Recording. Tenant shall not record this Lease without the
prior written consent of Landlord. Tenant, upon the request
of Landlord, shall execute and acknowledge a "short form"
memorandum of this Lease for recording purposes.
p. Severability. A final determination by a court of
competent jurisdiction that any provision of this Lease Is
invalid shall not affect the validity of any other
provision, and any provision so determined to be invalid
shall, to the extent possible, be construed to accomplish
its intended effect.
q. Successors and Assigns. This Lease shall apply to and
bind the heirs, personal representatives, and permitted
successors and assigns of the parties.
r. Time of the Essence. Time is of the essence of this
Lease.
s. Waiver. No delay or omission in the exercise of any right
or remedy of Landlord upon any default by Tenant shall
impair such right or remedy or be construed as a waiver of
such default.
t. Compliance. The parties hereto agree to comply with all
applicable federal, state and local laws, regulations,
codes, ordinances and administrative orders having
jurisdiction over the parties, property or the subject
matter of this Agreement, including, but not limited to, the
1964 Civil Rights Act and all amendments thereto, the
Foreign investment In Real Property Tax Act, the
Comprehensive Environmental Response Compensation and
Liability Act, and The Americans With Disabilities Act.
The receipt and acceptance by Landlord of delinquent Rent
shall not constitute a waiver of any other default; it shall
constitute only a waiver of timely payment for the
particular Rent payment involved.
No act or conduct of Landlord, including, without
limitation, the acceptance of keys to the Premises, shall
constitute an acceptance of the surrender of the Premises by
Tenant before the expiration of the Term. Only a written
notice from Landlord to Tenant shall constitute acceptance
of the surrender of the Premises and accomplish a
termination of the Lease.
Landlord's consent to or approval of any act by Tenant
requiring Landlord's consent or approval shall not be deemed
to waive or render unnecessary Landlord's consent to or
approval of any subsequent act by Tenant.
Any waiver by Landlord of any default must be in writing and
shall not be a waiver of any other default concerning the
same or any other provision of the Lease.
The parties hereto have executed this Lease as of the dates
set forth below.
Date: March 10, 1998 Date: March 9, 1998
Landlord: Airplaza Co., Inc. Tenant: Air Methods Corporation International
By: \s\ Xxxxxx X. Xxxxxxxx By: \s\ Xxxxx X. Xxxx
Title: President Title: CFO
HANGAR LEASE
This Lease between Airplaza Co., Inc., a Colorado corporation
(`landlord'), and Air Methods Corporation International, a
Colorado corporation, (`Tenant"), is dated March 2, 1998.
1. LEASE OF PREMISES.
In consideration of the Rent (as defined at Section 5.4) and the
provisions of this Lease, Landlord leases to Tenant and Tenant
leases from Landlord the Premises shown by diagonal lines on the
floor plan attached hereto as Exhibit "A,' and further described
at Section 21. The Premises are located within the Building and
Project described in Section 2m. Tenant shall have the non-
exclusive right (unless otherwise provided herein) in common with
Landlord, other tenants, subtenants and invitees, to use of the
Common Areas (as defined at Section 2e).
2. DEFINITIONS
As used in this Lease, the following terms shall have the
following meanings:
a. Base Rent (initial): $ 29,226.21 per year
b. Base Year: The calendar year of N/A
c. Broker(s)
Landlord's: None
Tenant's: Xxxxxxx & Wakefield of Colorado, Inc.
d. Commencement Date: April 1, 0000
x. Xxxxxx Xxxxx: the building lobbies, common corridors and
hallways, restrooms, garage and parking areas, stairways,
elevators and other generally understood public or common areas.
Landlord shall have the right to regulate or restrict the use of
the Common Areas.
f. Expense Stop: (fill in if applicable): N/A
g. Expiration Date: March 31, 2003, unless otherwise sooner
terminated in accordance with the provisions of this Lease.
h. Index (section 5.2): United States Department of Labor, Bureau of
Labor Statistics Consumer Price Index for All Urban Consumers, U.S.
City Average, Subgroup "All Items" (1967- 100).
i. Landlord's Mailing Address: 0000 XXX Xxxxxxxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxx 00000
Tenant's Mailing Address 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxx 00000
j. Monthly Installments of Base Rent (initial): $ 2,435.52
per month.
k. Parking: Tenant shall be permitted, at no additional charge,
to park 8 cars on a non-exclusive basis in the area(s) designated
by Landlord for parking. Tenant shall abide by any and all
parking regulations and rules established from time to time by
Landlord or Landlord's parking operator. Landlord reserves the
right to separately charge Tenant's guests and visitors for
parking.
l. Premises: that portion of the Building containing
approximately 5,343 square feet of Rentable Area shown by
diagonal lines on Exhibit `A' located on the ground floor of the
Building and known as Hangar K (known as 0000 Xxxxx Xxxxxx
Xxxxxx).
m. Project: the hangar building of which the Premises are a
part (the "Building") and any other buildings or improvements on
the real property (the "Property') located at 7211 - 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000 and further described
at Exhibit "B." The Project is known as Airplaza 22.
n. Rentable Area: as to both the Premises and the Project, the
respective measurements of floor area as may from time to time be
subject to lease by Tenant and all tenants of the Project,
respectively, as determined by Landlord and applied on a
consistent basis throughout the Project.
o. Security Deposit (Section 7): $ -0- (zero)
p. State: the State of Colorado
q. Tenant's First Adjustment Date (Section 5.2): April 1, 1999.
r. Tenant's Proportionate Share: See addendum One - Additional
Provisions
s. Tenant's Use Clause (Article 8): Operation of an air
ambulance facility; storage, repair (major and minor), service,
charter and sale of all non-fixed wing aircraft; storage and
repair (major and minor) of all aircraft owned or leased by
Tenant; storage and minor repair of all aircraft; storage for
parts and supplies necessary or related to Tenant's business; and
any other lawful activity involving aircraft not prohibited by
the Land Lease between Arapahoe County Public Airport Authority,
as Lessor, and Landlord, as Lessee, dated as of October 15, 1987,
as amended. For purposes of the immediately preceding sentence,
Tenant's rights to use the Premises for "repair" purposes shall
mean that Tenant shall have the right to repair all components,
systems and subsystems in aircraft to the extent not prohibited
by said Land Lease.
t. Term: the period commencing on the Commencement Date and
expiring at midnight on the Expiration Date.
3. EXHIBITS AND ADDENDA.
The exhibits and addenda listed below (unless lined out) are
Incorporated by reference in this Lease:
Exhibit `A"-Floor Plan showing the Premises.
Exhibit "B"-Site Plan of the Project.
Exhibit "C"-Work Agreement.
Exhibit "D"-Rules and Regulations.
Exhibit "E" - Deleted.
Exhibit "F" Addenda: Addendum One - Additional Provisions.
4. DELIVERY OF POSSESSION.
See Addendum One - Additional Provisions.
5. RENT.
5.1.Payment of Base Rent. Tenant agrees to pay the Base Rent for
the Premises. Monthly Installments of Base Rent shall be payable
in advance on the first day of each calendar month of the Term.
If the Term begins (or ends) on other than the first (or last)
day of a calendar month, the Base Rent for the partial month
shall be prorated on a per diem basis. Tenant shall pay Landlord
the first Monthly Installment of Base Rent when Tenant executes
the Lease.
5.2 Adjusted Base Rent.
a. The Base Rent (and the corresponding Monthly Installments of Base
Rent) set forth at Section 2a shall be adjusted annually (the
"Adjustment Date"), commencing on Tenant's First Adjustment Date.
Adjustments, if any, shall be based upon increases (if any) in the
Index. The Index in publication three (3) months before the
Commencement Date shall be the "Base Index." The Index in publication
three (3) months before each Adjustment Date shall be the "Comparison
Index." As of each Adjustment Date, the Base Rent payable during the
ensuing twelve-month period shall be determined by increasing the
initial Base Rent by a percentage equal to the percentage increase, if
any, in the Comparison Index over the Base Index. If the Comparison
Index for any Adjustment Date is equal to or less than the Comparison
Index for the preceding Adjustment Date (or the Base Index, in the
case of First Adjustment Date), the Base Rent for the ensuing twelve-
month period shall remain the amount of Base Rent payable during the
preceding twelve-month period. When the Base Rent payable as of each
Adjustment Date is determined, Landlord shall promptly give Tenant
written notice of such adjusted Base Rent and the manner in which it
was computed. The Base Rent as so adjusted from time to time shall be
the "Base Rent" for all purposes under this Lease.
b. If at any Adjustment Date the Index no longer exists in the
form described in this Lease, Landlord may substitute any
substantially equivalent official Index published by the Bureau
of Labor Statistics or its successor. Landlord shall use any
appropriate conversion factors to accomplish such substitution.
The substitute index shall then become the "Index" hereunder.
See Addendum One - Additional Provisions.
5.3 Project Operating Costs.
a. In order that the Rent payable during the Term reflect any
Project Operating Costs, Tenant agrees to pay to Landlord as
Rent, Tenant's Proportionate Share of all costs, expenses and
obligations attributable to the Project and its operation, all as
provided below. The purpose of this provision is to reflect the
fact that Landlord and Tenant intend and agree that this Lease
shall constitute a "triple net" Lease with respect to the
Premises.
b. During each calendar year during the Term, (collectively,
the "Lease Years"), Tenant shall pay to Landlord, in addition to
the Base Rent and all other payments due under this Lease. an
amount equal to Tenant's Proportionate Share of such excess
Project Operating Costs in accordance with the provisions of this
Section 5.3b.
(1) the term "Project Operating Costs" include all those items
described in the following subparagraphs (a) and (b).
(a) All taxes, assessments, water and sewer charges and other
similar governmental charges levied on or attributable to the
Building or Project or their operation, including without
limitation, (i) real property taxes or assessments levied or
assessed against the Building or Project, (ii) assessments or
charges levied or assessed against the Building or Project by any
redevelopment agency, (iii) any tax measured by gross rentals
received from the leasing of the Premises, Building or Project,
excluding any net income, franchise, capital stock, estate or
inheritance taxes imposed by the State or federal government or
their agencies, branches or departments; provided that if at any
time during the Term any governmental entity levies, assesses or
imposes on Landlord any (1) general or special, ad valorem or
specific, excise, capital levy or other tax, assessment, levy or
charge directly on the Rent received under this Lease or on the
rent received under any other leases of space in the Building or
Project, or (2) any license fee, excise or franchise tax,
assessment, levy or charge measured by or based, In whole or in
part, upon such rent, or (3) any transfer; transaction, or
similar tax, assessment, levy or charge based directly or
indirectly upon the transaction represented by this Lease or such
other leases, or (4) any occupancy, use, per capita or other tax,
assessment, levy or charge based directly or indirectly upon the
use or occupancy of the Premises or other premises within the
Building or Project, then any such taxes, assessments, levies and
charges shall be deemed to be included in the term Project
Operating Costs. If at any time during the Term the assessed
valuation of, or taxes on, the Project are not based on a
completed Project having at least eighty-five percent (85%) of
the Rentable Area occupied, then the "taxes" component of Project
Operating Costs shall be adjusted by Landlord to reasonably
approximate the taxes which would have been payable if the
Project were completed and at least eighty-five percent (85%)
occupied.
(b) Operating costs incurred by Landlord in maintaining and
operating the Building and Project, including without limitation
the following: costs of (1) utilities; (2) supplies; (3)
insurance (including public liability, property damage,
earthquake, and fire and extended coverage insurance for the full
replacement cost of the Building and Project as required by
Landlord or its lenders for the Project; (4) services of
independent contractors; (5) compensation (including employment
taxes and fringe benefits) of all persons who perform duties
connected with the operation, maintenance, repair or overhaul of
the Building or Project, and equipment, improvements and
facilities located within the Project, including without
limitation engineers, janitors, painters, floor waxers, window
washers, security and parking personnel and gardeners (but
excluding persons performing services not uniformly available to
or performed for substantially all Building Project tenants);
(6) operation and maintenance of a room for delivery and
distribution of mail to tenants of the Building or Project as
required by the U.S. Postal Service (including, without
limitation, an amount equal to the fair market rental value of
the mail room premises); (7) management of the Building or
Project, whether managed by Landlord or an independent contractor
(including, without limitation, an amount equal to the fair
market value of any on-site manager's office) provided that such
management costs for the Project shall not exceed five percent
(5%) of Landlord's gross income from the Project; (8) rental
expenses for (or a reasonable depreciation allowance on) personal
property used in the maintenance, operation or repair of the
Building or Project; (9) costs, expenditures or charges (whether
capitalized or not) required by any governmental or quasi-
governmental authority; (10) amortization of capital expenses
(Including financing costs) (i) required by a governmental entity
for energy conservation or life safety purposes, or (ii) made by
Landlord to reduce Project Operating Costs; and (iii) any other
costs or expenses incurred by Landlord under this Lease and not
otherwise reimbursed by tenants of the Project. If at any time
during the Term, less than eighty-five percent (85%) of the
Rentable Area of the Project is occupied, the "operating costs"
component of Project Operating Costs shall be adjusted by
Landlord to reasonably approximate the operating costs which
would have been incurred if the Project had been at least eighty-
five percent (85%) occupied.
(2) Tenant's Proportionate Share of Project Operating Costs shall
be payable by Tenant to Landlord as follows:
(a) Beginning with the Base Year and for each lease year
thereafter Tenant shall pay Landlord an amount equal to Tenant's
Proportionate Share of the Project Operating Costs incurred by
Landlord in that Lease Year.
(b) To provide for current payments of Project Operating Costs
Tenant shall, at Landlord's request, pay as additional rent
during each Lease Year, an amount equal to Tenant's Proportionate
Share of the Project Operating Costs payable during such Lease
Year, as estimated by Landlord from time to time. Such payments
shall be made in monthly installments, commencing on the first
day of the month following the month in which Landlord notifies
Tenant of the amount it is to pay hereunder and continuing until
the first day of the month following the month in which Landlord
gives Tenant a new notice of estimated Project Operating Costs.
It is the intention hereunder to estimate from time to time the
amount of the Project Operating Costs for each Lease Year and
Tenant's Proportionate Share thereof, and then to make an
adjustment in the following year based on the actual Project
Operating Costs incurred for that Lease Year.
(c) On or before April 1 of each Lease Year after the first
Lease Year (or as soon thereafter as is practical), Landlord
shall deliver to Tenant a statement setting forth Tenant's
Proportionate Share of the Project Operating Costs for the
preceding Lease Year. If Tenant's Proportionate Share of the
actual Project Operating Costs for the previous Lease Year
exceeds the total of the estimated monthly payments made by
Tenant for such year, Tenant shall pay Landlord the amount of the
deficiency within ten (10) days of the receipt of the statement.
If such total exceeds Tenant's Proportionate Share of the actual
Project Operating Costs for such Lease Year, then Landlord shall
credit against Tenant's next ensuing monthly installment(s) of
additional rent an amount equal to the difference until the
credit is exhausted. If a credit is due from Landlord on the
Expiration Date, Landlord shall pay Tenant the amount of the
credit. The obligations of Tenant and Landlord to make payments
required under this Section 5.3 shall survive the Expiration
Date.
(d) Tenant's Proportionate Share of Project Operating Costs in
any Lease Year having less than 365 days shall be appropriately
prorated.
(e) If any dispute arises as to the amount of any additional rent
due hereunder, Tenant shall have the right after reasonable
notice and at reasonable times to inspect Landlord's accounting
records at Landlord's accounting office and, if after such
inspection Tenant still disputes the amount of additional rent
owed, a certification as to the proper amount shall be made by
Landlord's certified public accountant, which certification shall
be final and conclusive. Tenant agrees to pay the cost of such
certification unless it is determined that Landlord's original
statement overstated Project Operating Costs by more than five
percent (5%).
5.4 Definition of Rent. All costs and expenses which Tenant
assumes or agrees to pay to Landlord under this Lease shall be
deemed additional rent (which, together with the Base Rent is
sometimes referred to as the "Rent"). The Rent shall be paid to
the Building manager (or other person) and at such place, as
Landlord may from time to time designate in writing, without any
prior demand there for and without deduction or offset, In lawful
money of the United States of America.
5.5 Rent Control. If the amount of Rent or any other payment due
under this Lease violates the terms of any governmental
restrictions on such Rent or payment, then the Rent or payment
due during the period of such restrictions shall be the maximum
amount allowable under those restrictions. Upon termination of
the restrictions, Landlord shall, to the extent it is legally
permitted, recover from Tenant the difference between the amounts
received during the period of the restrictions and the amounts
Landlord would have received had there been no restrictions.
5.6 Taxes Payable by Tenant. In addition to the Rent and any
other charges to be paid by Tenant hereunder, Tenant shall
reimburse Landlord upon demand for any and all taxes payable by
Landlord (other than net income taxes) which are not otherwise
reimbursable under this Lease, whether or not now customary or
within the contemplation of the parties, where such taxes are
upon, measured by or reasonably attributable to (a) the cost or
value of Tenant's equipment, furniture, fixtures and other
personal property located In the Premises, or the cost or value
of any leasehold Improvements made in or to the Premises by or
for Tenant, other than Building Standard Work made by Landlord,
regardless of whether title to such improvements is held by
Tenant or Landlord; (b) the gross or net Rent payable under this
Lease, Including, without limitation, any rental or gross
receipts tax levied by any taxing authority with respect to the
receipt of the Rent hereunder; (c) the possession, leasing,
operation, management, maintenance, alteration, repair, use or
occupancy by Tenant of the Premises or any portion thereof; or
(d) this transaction or any document to which Tenant is a party
creating or transferring an interest or an estate in the
Premises. If it becomes unlawful for Tenant to reimburse Landlord
for any costs as required under this Lease, the Base Rent shall
be revised to net Landlord the same net Rent after imposition of
any tax or other charge upon Landlord as would have been payable
to Landlord but for the reimbursement being unlawful.
6. INTEREST AND LATE CHARGE.
If Tenant fails to pay when due any Rent or other amounts or
charges which Tenant is obligated to pay under the terms of this
Lease, the unpaid amounts shall bear interest at the maximum rate
then allowed by law. Tenant acknowledges that the late payment of
any Monthly Installment of Base Rent will cause Landlord to lose
the use of that money and incur costs and expenses not
contemplated under this Lease, including without limitation,
administrative and collection costs and processing and accounting
expenses, the exact amount of which is extremely difficult to
ascertain. Therefore, in addition to interest, if any such
installment is not received by Landlord within ten (10) days from
the date it Is due, Tenant shall pay Landlord a late charge equal
to five percent (5%) of such installment. Landlord and Tenant
agree that this late charge represents a reasonable estimate of
such costs and expenses and is fair compensation to Landlord for
the loss suffered from such nonpayment by Tenant. Acceptance of
any interest or late charge shall not constitute a waiver of
Tenant's default with respect to such nonpayment by Tenant nor
prevent Landlord from exercising any other rights or remedies
available to Landlord under this Lease.
8. TENANT'S USE OF THE PREMISES.
Tenant shall use the Premises solely for the purposes set forth
in Tenant's Use Clause. Tenant shall not use or occupy the
Premises in violation of law or any covenant, condition or
restriction affecting the Building or Project or the certificate
of occupancy issued for the Building or Project, and shall, upon
notice from Landlord, immediately discontinue any use of the
Premises which is declared by any governmental authority having
jurisdiction to be a violation of law or the certificate of
occupancy. Tenant, at Tenant's own cost and expense, shall comply
with all laws, ordinances, regulations, rules and/or any
directions of any governmental agencies or authorities having
jurisdiction which shall, by reason of the nature of Tenant's use
or occupancy of the Premises, impose any duty upon Tenant or
Landlord with respect to the Premises or its use or occupation. A
judgment of any court of competent jurisdiction or the admission
by Tenant in any action or proceeding against Tenant that Tenant
has violated any such laws, ordinances, regulations, rules and/or
directions in the use of the Premises shall be deemed to be a
conclusive determination of that fact as between Landlord and
Tenant. Tenant shall not do or permit to be done anything which
would invalidate or increase the cost of any fire, extended
coverage or other insurance policy covering the Building or
Project and/or property located therein, and shall comply with
all rules, orders, regulations, requirements and recommendations
of the Insurance Services Office or any other organization
performing a similar function. Tenant shall prompt1y upon demand
reimburse Landlord for any additional premium charged for such
policy by reason of Tenant's failure to comply with the
provisions of this Article. Tenant shall not do or permit
anything to be done In or about the Premises which will in any
way obstruct or interfere with the rights of other tenants or
occupants of the Building or Project, or injure or annoy them, or
use or allow the Premises to be used for any improper, immoral,
unlawful or objectionable purpose, nor shall Tenant cause,
maintain or permit any nuisance in, on or about the Premises.
Tenant shall not commit or suffer to be committed any waste in or
upon the Premises.
9. SERVICES AND UTILITIES.
Provided that Tenant is not in default hereunder, Landlord agrees
to furnish to the Premises during generally recognized business
days, and during hours determined by Landlord in its sole
discretion, and subject to the Rules and Regulations of the
Building or Project, heating, ventilation and air conditioning
("HVAC") as required in Landlord's judgment for the comfortable
use and occupancy of the Premises. If Tenant desires HVAC at any
other time, Landlord shall use reasonable efforts to furnish such
service upon reasonable notice from Tenant and Tenant shall pay
Landlord's charges there for on demand. Landlord shall also
maintain and keep lighted the common stairs, common entries and
restrooms in the Building. Landlord shall not be in default
hereunder or be liable for any damages directly or indirectly
resulting from, nor shall the Rent be abated by reason of (i) the
installation, use or interruption of use of any equipment in
connection with the furnishing of any of the foregoing services,
(ii) failure to furnish or delay in furnishing any such services
where such failure or delay is caused by accident or any
condition or event beyond the reasonable control of Landlord, or
by the making of necessary repairs or improvements to the
Premises, Building or Project, or (iii) the limitation,
curtailment or rationing of, or restrictions on, use of water;
electricity, gas or any other form of energy serving the
Premises, Building or Project. Landlord shall not be liable under
any circumstances for a loss of or injury to property or
business, however occurring, through or in connection with or
incidental to failure to furnish any such services. If Tenant
uses heat generating machines or equipment in the Premises which
affect the temperature otherwise maintained by the HVAC system,
Landlord reserves the right to install supplementary air
conditioning units in the Premises and the cost thereof,
including the cost of installation, operation and maintenance
thereof, shall be paid by Tenant to Landlord upon demand by
Landlord.
Tenant shall not, without the written consent of Landlord, use
any apparatus or device in the Premises which consumes more
electricity than is usually furnished or supplied for the use of
premises as aircraft hangar space, as determined by Landlord.
Tenant shall not connect any apparatus with electric current
except through existing electrical outlets in the Premises.
Tenant shall not consume water or electric current in excess of
that usually furnished or supplied for the use of premises as
aircraft hangar space (as determined by Landlord), without first
procuring the written consent of Landlord, which Landlord may
refuse, and in the event of consent, Landlord may have installed
a water meter or electrical current meter in the Premises to
measure the amount of water or electric current consumed. The
cost of any such meter and of its installation, maintenance and
repair shall be paid for by the Tenant and Tenant agrees to pay
to Landlord promptly upon demand for all such water and electric
current consumed as shown by said meters, at the rates charged
for such services by the local public utility plus any additional
expense incurred in keeping account of the water and electric
current so consumed. If a separate meter is not installed, the
excess cost for such water and electric current shall be
established by an estimate made by a utility company or
electrical engineer hired by Landlord at Tenant's expense.
Nothing contained in this Article shall restrict Landlord's right
to require at any time separate metering of utilities furnished
to the Premises. In the event utilities are separately metered,
Tenant shall pay promptly upon demand for all utilities consumed
at utility rates charged by the local public utility plus any
additional expense incurred by Landlord in keeping account of the
utilities so consumed. Tenant shall be responsible for the
maintenance and repair of any such meters at its sole cost.
Landlord shall furnish if any, as such services are customarily
furnished to comparable aircraft hangar buildings in the area.
10. CONDITION OF THE PREMISES.
Tenant's taking possession of the Premises shall be deemed
conclusive evidence that as of the date of taking possession the
Premises are in good order and satisfactory condition, except for
such matters as to which Tenant gave Landlord notice on or before
the Commencement Date. No promise of Landlord to alter, remodel,
repair or improve the Premises, the Building or the Project and
no representation, express or implied, respecting any matter or
thing relating to the Premises, Building, Project or this Lease
(including, without limitation, the condition of the Premises,
the Building or the Project) have been made to Tenant by Landlord
or its Broker or Sales Agent, other than as may be contained
herein or in a separate exhibit or addendum signed by Landlord
and Tenant.
11. CONSTRUCTION REPAIRS AND MAINTENANCE.
a. Landlord's Obligations. Landlord shall perform Landlord's
Work to the Premises as described in Exhibit "C,' Landlord shall
maintain in good order, condition and repair the Building and all
other portions of the Premises not the obligation of Tenant or of
any other tenant in the Building.
b. Tenant's Obligations.
(1) Tenant shall perform Tenant's Work to the Premises as
described in Exhibit "C."
(2) Tenant at Tenant's sole expense shall, except for services
furnished by Landlord pursuant to Article 9 hereof, maintain the
Premises in good order; condition and repair; including the
interior surfaces of the ceilings, walls and floors, all doors,
all interior windows, all plumbing, pipes and fixtures,
electrical wiring, switches and fixtures, Building Standard
furnishings and special-items and equipment installed by or at
the expense of Tenant.
(3) Tenant shall be responsible for all repairs and alterations
in and to the Premises, Building and Project and the facilities
and systems thereof, the need for which arises out of (i)
Tenant's use or occupancy of the Premises, (ii) the installation,
removal, use or operation of Tenant's Property (as defined in
Article 13) in the Premises, (iii) the moving of Tenant's
Property into or out of the Building, or (iv) the act, omission,
misuse or negligence of Tenant, its agents, contractors,
employees or invitees.
(4) If Tenant fails to maintain the premises in good order;
condition and repair, Landlord shall give Tenant notice to do
such acts as are reasonably required to so maintain the Premises.
If Tenant falls to promptly commence such work and diligently
prosecute it to completion, then Landlord shall have the right to
do such acts and expend such funds at the expense of Tenant as
are reasonably required to perform such work. Any amount so
expended by Landlord shall be paid by Tenant promptly after
demand with interest at the prime commercial rate then being
charged by Norwest Bank, Denver plus two percent (2%) per annum,
from the date. of such work, but not to exceed the maximum rate
then allowed by law. Landlord shall have no liability to Tenant
for any damage, inconvenience, or interference with the use of
the Premises by Tenant as a result of performing any such work.
c. Compliance with Law Landlord and Tenant shall each do all
acts required to comply with all applicable laws, ordinances, and
rules of any public authority relating to their respective
maintenance obligations as Set forth herein.
d. Waiver by Tenant. Tenant expressly waives the benefits of
any statute now or hereafter in effect which would otherwise
afford the Tenant the right to make repairs at Landlord's expense
or to terminate this Lease because of Landlords failure to keep
the Premises in good order; condition and repair.
e. Load and Equipment Limits. Tenant shall not place any load
upon any floor of the Premises which exceeds the load per square
foot which such floor was designed to carry. as determined by
Landlord or Landlord's structural engineer. The cost of any such
determination made by Landlord's structural engineer shall be
paid for by Tenant upon demand. Tenant shall not install business
machines or mechanical equipment which cause noise or vibration
to such a degree as to be objectionable to Landlord or other
Building tenants.
f. Except as otherwise expressly provided in this Lease,
Landlord shall have no liability to Tenant nor shall Tenant's
obligations under this Lease be reduced or abated in any manner
whatsoever by reason of any inconvenience, annoyance,
interruption or injury to business arising from Landlord's making
any repairs or changes which Landlord is required or permitted by
this Lease or by any other tenant's lease or required by law to
make in or to any portion of the Project, Building or the
Premises. Landlord shall nevertheless use reasonable efforts to
minimize any interference with Tenant's business in the Premises.
g. Tenant shall give Landlord prompt notice of any damage to or
defective condition in any part or appurtenance of the Building's
mechanical, electrical, plumbing, HVAC or other systems serving,
located in, or passing through the Premises.
h. Upon the expiration or earlier termination of this Lease,
Tenant shall return the Premises to Landlord clean and in the
same condition as on the date Tenant took possession, except for
normal wear and tear. Any damage to the Premises, including any
structural damage, resulting from Tenant's use or from the
removal of Tenant's fixtures, furnishings and equipment pursuant
to Section 13b shall be repaired by Tenant at Tenant's expense.
12. ALTERATIONS AND ADDITIONS.
a. Tenant shall not make any additions, alterations or
improvements to the Premises without obtaining the prior written
consent of Landlord. Landlord's consent may be conditioned on
Tenant's removing any such additions, alterations or improvements
upon the expiration of the Term and restoring the Premises to the
same condition as on the date Tenant took possession. All work
with respect to any addition, alteration or improvement shall be
done in a good and workmanlike manner by properly qualified and
licensed personnel approved by Landlord, and such work shall be
diligently prosecuted to completion. If any such work is
performed by a contractor selected by Tenant and approved by
Landlord, Tenant shall pay to Landlord, upon completion of any
such work, an administrative fee of five percent (5%) of the cost
of the work. If any such work is performed by Landlord's
contractor, Tenant shall pay to Landlord upon completion of any
such work an administrative fee of fifteen percent (15%) of the
cost of the work.
b. Tenant shall pay the costs of any work done on the Premises
pursuant to Section 12a, and shall keep the Premises, Building
and Project free and clear of liens of any kind. Tenant shall
indemnify, defend against and keep Landlord free and harmless
from all liability, loss, damage, costs, attorneys' fees and any
other expense incurred on account of claims by any person
performing work or furnishing materials or supplies for Tenant or
any person claiming under Tenant.
Tenant shall keep Tenant's leasehold interest, and any additions
or improvements which are or become the property of Landlord
under this Lease, free and clear of all attachment or judgment
liens. Before the actual commencement of any work for which a
claim or lien may be filed, Tenant shall give Landlord notice of
the intended commencement date a sufficient time before that date
to enable Landlord to post notices of non-responsibility or any
other notices which Landlord deems necessary for the proper
protection of Landlord's interest in the Premises, Building or
the Project, and Landlord shall have the right to enter the
Premises and post such notices at any reasonable time.
c. Landlord may require, at Landlord's sole option, that Tenant
provide to Landlord, at Tenant's expense, a lien and completion
bond In an amount equal to at least one and one-half (11/2) times
the total estimated cost of any additions, alterations or
improvements to be made in or to the Premises, to protect
Landlord against any liability for mechanic's and materialmen's
liens and to insure timely completion of the work. Nothing
contained in this Section 12c shall relieve Tenant of its
obligation under Section 12b to keep the Premises, Building and
Project free of all liens.
d. Unless their removal is required by Landlord as provided in
Section 12a, all additions, alterations and improvements made to
the Premises shall become the property of Landlord and be
surrendered with the Premises upon the expiration of the Term;
provided, however, Tenant's equipment, machinery and trade
fixtures which can be removed without damage to the Premises
shall remain the property of Tenant and may be removed, subject
to the provisions of Section 13b.
13. LEASEHOLD IMPROVEMENTS; TENANT'S PROPERTY
a. All fixtures, equipment, improvements and appurtenances
attached to or built into the Premises at the commencement of or
during the Term, whether or not by or at the expense of Tenant
("Leasehold Improvements"). shall be and remain a part of the
Premises, shall be the property of Landlord and shall not be
removed by Tenant, except as expressly provided in Section 13b.
b. All movable partitions, business and trade fixtures,
machinery and equipment communications equipment and office
equipment located in the Premises and acquired by or for the
account of Tenant, without expense to Landlord, which can be
removed without structural damage to the Building, and all
furniture, furnishings and other articles of movable personal
properly owned by Tenant and located in the Premises
(collectively "Tenant's Property") shall be and shall remain the
property of Tenant and may be removed by Tenant at any time
during the Term; provided that if any of Tenant's Property is
removed, Tenant shall promptly repair any damage to the Premises
or to the Building resulting from such removal.
14. RULES AND REGULATIONS.
Tenant agrees to comply with (and cause its agents, contractors,
employees and invitees to comply with) the rules and regulations
attached hereto as Exhibit "D" and with such reasonable
modifications thereof and additions thereto as Landlord may from
time to time make. Landlord shall not be responsible for any
violation of said rules and regulations by other tenants or
occupants of the Building or Project.
15. CERTAIN RIGHTS RESERVED BY LANDLORD.
Landlord reserves the following rights, exercisable without
liability to Tenant for (a) damage or injury to property, person
or business, (b) causing an actual or constructive eviction from
the Premises, or (c) disturbing Tenant's use or possession of the
Premises:
a. To name the Building and Project and to change the name or
street address of the Building or Project:
b. To install and maintain all signs on the exterior and
interior of the Building and Project;
c. To have pass keys to the Premises and all doors within the
Premises, excluding Tenant's vaults and safes;
d. At any time during the Term, and on reasonable prior notice
to Tenant, to Inspect the Premises, and to show the Premises to
any prospective purchaser or mortgagee of the Project, or to any
assignee of any mortgage on the Project, or to others having an
interest in the Project or Landlord, and during the last six
months of the Term, to show the Premises to prospective tenants
thereof; and
e. To enter the Premises for the purpose of making inspections,
repairs, alterations, additions or improvements to the Premises
or the Building (Including, without limitation, checking,
calibrating, adjusting or balancing controls and other parts of
the HVAC system), and to take all steps as may be necessary or
desirable for the safety, protection, maintenance or preservation
of the Premises or the Building or Landlord's interest therein,
or as may be necessary or desirable for the operation or
improvement of the Building or in order to comply with laws,
orders or requirements of governmental or other authority.
Landlord agrees to use its best efforts (except in an emergency)
to minimize interference with Tenant's business in the Premises
in the course of any such entry.
16. ASSIGNMENT AND SUBLETTING.
No assignment of this Lease or sublease of all or any part of the
Premises shall be permitted, except as provided in this Article
16.
a. Tenant shall not, without the prior written consent of the
Landlord, which consent shall not be unreasonably withheld,
assign or hypothecate this Lease or any interest herein or sublet
the Premises or any part thereof, or permit the use of the
Premises by any party other than Tenant. Any of the foregoing
acts without such consent shall be void and shall, at the option
of Landlord, terminate this Lease. This Lease shall not, nor
shall any interest of Tenant herein, be assignable by operation
of law without the written consent of Landlord.
b. If at any time or from time to time during the Term Tenant
desires to assign this Lease or sublet all or any part of the
Premises, Tenant shall give notice to Landlord setting forth the
terms and provisions of the proposed assignment or sublease, and
the identity of the proposed assignee or subtenant. Tenant shall
promptly supply Landlord with such information concerning the
business background and financial condition of such proposed
assignee or subtenant as Landlord may reasonably request.
Landlord shall, within twenty (20) days after Tenant's notice is
given, either approve or, in Landlord's reasonable judgment,
disapprove the proposed assignment or sublease. If Landlord
approves the proposed assignment or sublease, Tenant may assign
the Lease or sublet such space to such proposed assignee or
subtenant on the following further conditions:
(1) The assignment or sublease shall be on the same terms set
forth in the notice given to Landlord;
(2) No assignment or sublease shall be valid and no assignee or
sublessee shall take possession of the Premises until an executed
counterpart of such assignment or sublease has been delivered to
Landlord: and
(3) No assignee or sublessee shall have a further right to
assign or sublet except on the terms herein contained.
c. Notwithstanding the provisions of paragraphs a and b above,
Tenant may assign this Lease or sublet the Premises or any
portion thereof, without Landlord's consent and without extending
any recapture or termination option to Landlord, to any
corporation which controls, is controlled by or is under common
control with Tenant, or to any corporation resulting from a
merger or consolidation with Tenant, or to any person or entity
which acquires all the assets of Tenant's business as a going
concern, provided that (i) the assignee or sublessee assumes, In
full, the obligations of Tenant under this Lease, (ii) Tenant
remains fully liable under this Lease, and (iii) the use of the
Premises under Article 8 remains unchanged.
d. No subletting or assignment shall release Tenant of Tenant's
obligations under the Lease, or alter the primary liability of
Tenant to pay the Rent and to perform all other obligations to be
performed by Tenant hereunder. The acceptance of Rent by Landlord
from any other person shall not be deemed to be a waiver by
Landlord of any provision hereof. Consent to one assignment or
subletting shall not be deemed consent to any subsequent
assignment or subletting. In the event of default by an assignee
or subtenant 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 assignee, subtenant or successor. Landlord
may consent to subsequent assignments of the Lease or sublettings
or amendments or modifications to the 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 shall not relieve Tenant of liability under this Lease.
17. HOLDING OVER.
If after expiration of the Term, Tenant remains in possession of
the Premises with Landlord's permission (express or implied),
Tenant shall become a tenant from month to month only, upon all
the provisions of this Lease (except as to term and Base Rent),
but the "Monthly Installments of Base Rent" payable by Tenant
shall be Increased to one hundred twenty-five percent (125%) of
the Monthly Installments of Base Rent payable by Tenant at the
expiration of the Term. Such monthly rent shall be payable In
advance on or before the first day of each month. If either party
desires to terminate such month to month tenancy, It shall give
the other party not less than thirty (30) days advance written
notice of the date of termination.
18. SURRENDER OF PREMISES.
a. Tenant shall peaceably surrender the Premises to Landlord on
the Expiration Date, in broom-clean condition and In as good
condition as when Tenant took possession, except for (i)
reasonable wear and tear, (ii) loss by fire or other casualty,
and (iii) loss by condemnation. Tenant shall, on Landlord's
request, remove Tenant's Property on or before the Expiration
Date and promptly repair all damage to the Premises or Building
caused by such removal.
b. If Tenant abandons or surrenders the Premises, or is
dispossessed by process of law or otherwise, any of Tenant's
Property left on the Premises shall be deemed to be abandoned,
and, at Landlord's option, title shall pass to Landlord under
this Lease as by a xxxx of sale. If Landlord elects to remove all
or any part of such Tenant's Property, the cost of removal,
Including repairing any damage to the Premises or Building caused
by such removal, shall be paid by Tenant. On the Expiration Date
Tenant shall surrender all keys to the Premises.
19. DESTRUCTION OR DAMAGE.
a. If the Premises or the portion of the Building necessary for
Tenant's occupancy is damaged by fire, earthquake, act of God,
the elements of other casualty, Landlord shall, subject to the
provisions of this Article, promptly repair the damage, If such
repairs can, in Landlord's reasonable opinion, be completed
within one hundred eighty (180) days. If Landlord determines that
repairs can be completed within one hundred eighty (180) days,
this Lease shall remain in full force and effect, except that if
such damage is not the result of the negligence or willful
misconduct of Tenant or Tenant's agents, employees, contractors,
licensees or invitees, the Base Rent shall be abated to the
extent Tenant's use of the Premises is impaired, commencing with
the date of damage and continuing until completion of the repairs
required of Landlord under Section 19d.
b. See Addendum One - Additional Provisions.
c. See Addendum One - Additional Provisions.
d. If the Premises are to be repaired under this Article,
Landlord shall repair at its cost any injury or damage to the
Building and Building Standard Work in the Premises. Tenant shall
be responsible at its sole cost and expense for the repair,
restoration and replacement of any other Leasehold Improvements
and Tenant's Property. Landlord shall not be liable for any loss
of business, inconvenience or annoyance arising from any repair
or restoration of any portion of the Premises, Building or
Project as a result of any damage from fire or other casualty.
e. This Lease shall be considered an express agreement governing
any case of damage to or destruction of the Premises, Building or
Project by fire or other casualty, and any present or future law
which purports to govern the rights of Landlord and Tenant in
such circumstances in the absence of express agreement, shall
have no application.
20. EMINENT DOMAIN.
a. If the whole of the Building or Premises is lawfully taken
by condemnation or in any other manner for any public or quasi-
public purpose, this Lease shall terminate as of the date of such
taking, and Rent shall be prorated to such date. If less than the
whole of the Building or Premises is so taken, this Lease shall
be unaffected by such taking, provided that (i) Tenant shall have
the right to terminate this Lease by notice to Landlord given
within ninety (90) days after the date of such taking if twenty
percent (20%) or more of the Premises is taken and the remaining
area of the Premises is not reasonably sufficient for Tenant to
continue operation of its business, and (ii) Landlord shall have
the right to terminate this Lease by notice to Tenant given
within ninety (90) days after the date of such taking. If either
Landlord or Tenant so elects to terminate this Lease, the Lease
shall terminate on the thirtieth (30th) day' alter either such
notice. The Rent shall be prorated to the date of termination. if
this Lease continues in force upon such partial taking, the Base
Rent and Tenant's Proportionate Share shall be equitably adjusted
according to the remaining Rentable Area of the Premises and
Project.
b. In the event of any taking, partial or whole, all of the
proceeds of any award, judgment or settlement payable by the
condemning authority shall be the exclusive property Pf Landlord,
and Tenant hereby assigns to Landlord all of its right, title and
Interest in any award, judgment or settlement from the condemning
authority. Tenant, however, shall have the right, to the extent
that Landlord's award is not reduced or prejudiced, to claim from
the condemning authority (but not from Landlord) such
compensation as may be recoverable by' Tenant In its own right
for relocation expenses and damage to Tenant's personal property.
c. In the event of a partial taking of the Premises which does
not result in a termination of this Lease, Landlord shall restore
the remaining portion of the Premises as nearly as practicable to
its condition prior to the condemnation or taking, but only to
the extent of Building Standard Work. Tenant shall be responsible
at its sole cost and expense for the repair, restoration and
replacement of any other Leasehold Improvements and Tenant's
Property.
21. INDEMNIFICATION.
a. Tenant shall indemnify and hold Landlord harmless against
and from liability and claims of any kind for loss or damage to
property of Tenant or any other person, or for any injury to or
death of any person, arising out of: (1) Tenant's use and
occupancy of the Premises, or any work, activity or other things
allowed or suffered by Tenant to be done in, on or about the
Premises; (2) any breach or default by Tenant of any of Tenant's
obligations under this Lease; or (3) any negligent or otherwise
tortious act or omission of Tenant, its agents, employees,
invitees or contractors. Tenant shall at Tenant's expense, and by
counsel satisfactory to Landlord, defend Landlord in any action
or proceeding arising from any such claim and shall indemnify
Landlord against all costs, attorneys' fees, expert witness fees
and any other expenses incurred In such action or proceeding. As
a material part of the consideration for Landlord's execution of
this Lease, Tenant hereby assumes all risk of damage or injury to
any person or property in, on or about the Premises from any
cause.
b. Landlord shall not be liable for injury or damage which may
be sustained by the person or property of Tenant, Its employees,
invitees or customers, or any other person in or about the
Premises, caused by or resulting from fire, steam, electricity
gas, water or rain which may leak or flow from or into any part
of the Premises, or from the breakage, leakage, obstruction or
other defects of pipes, sprinklers, wires, appliances, plumbing,
air conditioning or lighting fixtures, whether such damage or
injury results from conditions arising upon the Premises or upon
other portions of the Building or Project or from other sources.
Landlord shall not be liable for any damages arising from any act
or omission of any other tenant of the Building or Project.
22. TENANT'S INSURANCE.
a. All insurance required to be carried by Tenant hereunder
shall be issued by responsible insurance companies acceptable to
Landlord and Landlord's lender and qualified to do business in
the State. Each policy shall name Landlord, and at Landlord's
request any mortgagee of landlord, as an additional insured, as
their respective interests may appear. Each policy shall contain
(i) a cross-liability endorsement, (ii) a provision that such
policy and the coverage evidenced thereby shall be primary and
non-contributing with respect to any policies carried by Landlord
and that any coverage carried by Landlord shall be excess
insurance, and (iii) a waiver by the insurer of any right of
subrogation against Landlord, its agents, employees and
representatives, which arises or might arise by reason of any
payment under such policy or by reason of any act or omission of
Landlord, its agents, employees or representatives. A copy of
each paid up policy (authenticated by the insurer) or certificate
of the insurer evidencing the existence and amount of each
insurance policy required hereunder shall be delivered to
Landlord before the date Tenant is first given the right of
possession of the Premises, and thereafter within thirty (30)
days after any demand by Landlord therefor. Landlord may, at any
time and from time to time, inspect and/or copy any insurance
policies required to be maintained by Tenant hereunder. No such
policy shall be cancelable except after twenty (20) days written
notice to Landlord and Landlord's lender. Tenant shall furnish
Landlord with renewals or "binders" of any such policy at least
ten (10) days prior to the expiration thereof. Tenant agrees that
if Tenant does not take out and maintain such insurance, Landlord
may (but shall not be required to) procure said insurance on
Tenant's behalf and charge the Tenant the premiums together with
a twenty-five percent (25%) handling charge, payable upon demand.
Tenant shall have the right to provide such Insurance coverage
pursuant to blanket policies obtained by the Tenant, provided
such blanket policies expressly afford coverage to the Premises,
Landlord, Landlord's mortgagee and Tenant as required by this
Lease.
b. Beginning on the date Tenant is given access to the Premises
for any purpose and continuing until expiration of tile Term,
Tenant shall procure, pay for and maintain in effect policies of
casualty insurance covering (i) all Leasehold Improvements
(including any alterations, additions or improvements as may be
made by Tenant pursuant to the provisions of Article 12 hereof),
and (ii) trade fixtures, merchandise and other personal property
from time to time in, on or about the Premises, in an amount not
less than one hundred percent (100%) of their actual replacement
cost from time to time, providing protection against any peril
included within the classification "Fire and Extended Coverage"
together with insurance against sprinkler damage, vandalism and
malicious mischief. The proceeds of such insurance shall be used
for the repair or replacement of the property so insured. Upon
termination of this Lease following a casualty as set forth
herein, the proceeds under (i) shall be paid to landlord, and the
proceeds under (ii) above shall be paid to Tenant.
c. Beginning on the date Tenant is given access to the Premises
for any purpose and continuing until expiration of the Term,
Tenant shall procure, pay for and maintain in effect workers'
compensation insurance as required by law and comprehensive
public liability and property damage insurance with respect to
the construction of improvements on the Premises, the use,
operation or condition of the Premises and the operations of
Tenant in, on or about the Premises, providing personal injury
and broad form properly damage coverage for not less than One
Million Dollars ($1,000,000.00) combined single limit for bodily
injury, death and property damage liability.
d. Not less than every three (3) years during the Term,
Landlord and Tenant shall discuss whether to increase any or all
of Tenant's insurance policy limits for all insurance to be
carried by Tenant as set forth In this Article. In the event
Landlord and Tenant cannot mutually agree upon whether any such
increases are necessary or, if so, the amounts thereof, then
Tenant agrees that all insurance policy limits as set forth in
this Article shall be adjusted for increases in the cost of
living in the same manner as is set forth in Section 5.2 hereof
for the adjustment of the Base Rent.
23. WAIVER OF SUBROGATION
Landlord and Tenant each hereby waive all rights of recovery
against the other and against the officers, employees, agents and
representatives of the other; on account of loss by or damage to
the waiving party of Its property or the property of others under
its control, to the extent that such loss or damage Is insured
against under any fire and extended coverage insurance policy
which either may have in force at the time of the loss or damage.
Tenant shall, upon obtaining the policies of insurance required
under this Lease, give notice to Its insurance carrier or
carriers that the foregoing mutual waiver of subrogation is
contained in this Lease.
24. SUBORDINATION AND ATTORNMENT.
Upon written request of Landlord, or any first mortgagee or first
deed of trust beneficiary of Landlord, or ground lessor of
Landlord, Tenant shall, in writing, subordinate its rights under
this Lease to the lien of any first mortgage or first deed of
trust, or to the interest of any lease in which Landlord is
lessee, and to all advances made or hereafter to be made
thereunder. However, before signing any subordination agreement,
Tenant shall have the right to obtain from any lender or lessor
or landlord requesting such subordination, an agreement in
writing providing that, as long as Tenant is not in default
hereunder, this Lease shall remain in effect for the full Term.
The holder of any security interest may, upon written notice to
Tenant, elect to have this Lease prior to its security interest
regardless of the time of the granting or recording of such
security interest.
In the event of any foreclosure sale, transfer in lieu of
foreclosure or termination of the lease in which Landlord is
lessee; Tenant shall attorn to the purchaser, transferee or
lessor as the case may be, and recognize that party as Landlord
under this Lease, provided such party acquires and accepts the
Premises subject to this Lease.
25. TENANT ESTOPPEL CERTIFICATES.
Within ten (10) days after written request from Landlord, Tenant
shall execute and deliver to Landlord or Landlord's designee, a
written statement certifying (a) that this Lease is unmodified
and in full force and effect, or is in full force and effect as
modified and slating the modifications; (b) the amount of Base
Rent and the date to which Base Rent and additional rent have
been paid in advance; (c) the amount of any security deposited
with landlord; and (d) that Landlord is not In default hereunder
or; if Landlord is claimed to be in default, stating the nature
of any claimed default. Any such statement may be relied upon by
a purchaser; assignee or lender. Tenant's failure to execute and
deliver such statement within the time required shall at
Landlord's election be a default under this Lease and shall also
be conclusive upon Tenant that: (1) this Lease is in full force
and effect and has not been modified except as represented by
Landlord; (2) there are no uncured defaults in Landlord's
performance and that Tenant has no right of offset, counterclaim
or deduction against Rent; and (3) not more than one month's Rent
has been paid in advance.
26. TRANSFER OF LANDLORD'S INTEREST.
In the event of any sale or transfer by Landlord of the Premises,
Building or Project, and assignment of this Lease by Landlord,
Landlord shall be and is hereby entirely freed and relieved of
any and all liability and obligations contained in or derived
from this Lease arising out of any act, occurrence or omission
relating to the Premises, Building, Project or Lease occurring
after the consummation of such sale or transfer; providing the
purchaser shall expressly assume all of the covenants and
obligations of Landlord under this Lease. If any security deposit
or prepaid Rent has been paid by Tenant, Landlord may transfer
the security deposit or prepaid Rent to Landlord's successor and
upon such transfer, Landlord shall be relieved of any and all
further liability with respect thereto.
27. DEFAULT
27.1. Tenant's Default. The occurrence of any one or more of the
following events shall constitute a default and breach of this
Lease by Tenant:
a. Deleted
b. If Tenant fails to pay any Rent or any other charges
required to be paid by Tenant under this Lease and such failure
continues for ten (10) days after such payment is due and
payable; or
c. If Tenant fails to promptly and fully perform any other
covenant, condition or agreement contained In this Lease and such
failure continues for thirty (30) days after written notice
thereof from Landlord to Tenant; or
d. If a writ of attachment or execution is levied on this lease
or on any of Tenant's Property; or
e. If Tenant makes a general assignment for the benefit of
creditors, or provides for an arrangement, composition, extension
or adjustment with its creditors; or
f. If Tenant files a voluntary petition for relief or if a
petition against Tenant in a proceeding under the federal
bankruptcy laws or other insolvency laws Is filed and not
withdrawn or dismissed within forty-five (45) days thereafter, or
if under the provisions of any law providing for reorganization
or winding up of corporations, any court of competent
jurisdiction assumes jurisdiction. custody or control of Tenant
or any substantial part of its property and such jurisdiction,
custody or control remains in force unrelinquished, unstayed or
unterminated for a period of forty-five (45) days; or
g. If on any proceeding or action in which Tenant is a party, a
trustee, receiver, agent or custodian is appointed to take charge
of the Premises or Tenant's Property (or has the authority to do
so) for the purpose of enforcing a lien against the Premises or
Tenant's Property; or
h. If Tenant is a partnership or consists of more than one (1)
person or entity, if any partner of the partnership or other
person or entity is involved in any of the acts or events
described in subparagraphs d through g above.
27.2. Remedies. In the event of Tenant's default hereunder, then
in addition to any other rights or remedies Landlord may have
under any law, Landlord shall have the right, at Landlord's
option, without further notice or demand of any kind to do the
following:
a. Terminate this Lease and Tenant's right to possession of the
Premises and reenter the Premises and take possession thereof,
and Tenant shall have no further claim to the Premises or under
this Lease; or
b. Continue this Lease in effect, reenter and occupy the
premises for the account of Tenant, and collect any unpaid Rent
or other charges which have or thereafter become due and payable;
or
c. Reenter the Premises under the provisions of subparagraph b,
and thereafter elect to terminate this Lease and Tenant's right
to possession of the Premises.
If Landlord reenters the Premises under the provisions of
subparagraphs b or c above, Landlord shall not be deemed to have
terminated this Lease or the obligation of Tenant to pay any Rent
or other charges thereafter accruing, unless Landlord notifies
Tenant in writing of Landlord's election to terminate this Lease.
in the event of any reentry or retaking of possession by
Landlord, Landlord shall have the right, but not the obligation,
to remove all or any part of Tenant's Property in the Premises
and to place such property in storage at a public warehouse at
the expense and risk of Tenant. If Landlord elects to relet the
Premises for the account of Tenant, the rent received by Landlord
from such reletting shall be applied as follows: first, to the
payment of any indebtedness other than Rent due hereunder from
Tenant to Landlord; second, to the payment of any costs of such
reletting; third, to the payment of the cost of any alterations
or repairs to the Premises: fourth to the payment of Rent due and
unpaid hereunder; and the balance, if any, shall be held by
Landlord and applied in payment of future Rent as it becomes due.
If that portion of rent received from the reletting which is
applied against the Rent due hereunder is less than the amount of
the Rent due, Tenant shall pay the deficiency to Landlord
promptly upon demand by Landlord. Such deficiency shall be
calculated and paid monthly Tenant shall also pay to Landlord, as
soon as determined, any costs and expenses incurred by Landlord
in connection with such reletting or in making alterations and
repairs to the Premises, which are not covered by the rent
received from the reletting.
Should Landlord elect to terminate this Lease under the
provisions of subparagraph a or C above, Landlord may recover as
damages from Tenant the following:
1. Past Rent. The worth at the time of the award of any unpaid
Rent which had been earned at the time of termination: plus
2. Rent Prior to Award. The worth at the time of the 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 rental loss that Tenant proves could have been reasonably
avoided; plus
3. Rent After Award. The worth at the time of the award of the
amount by which the unpaid Rent for the balance of the Term after
the time of award exceeds the amount of the rental loss that
Tenant proves could be reasonably avoided: plus
4. Proximately Caused Damages. Any other amount necessary to
compensate Landlord for all detriment proximately caused by
Tenant's failure to perform its obligations under this Lease or
which in the ordinary course of things would be likely to result
therefrom, including. but not limited to, any costs or expenses
(including attorneys' fees), incurred by Landlord in (a) retaking
possession of the Premises, (b) maintaining the Premises after
Tenant's default, (c) preparing the Premises for reletting to a
new tenant, including any repairs or alterations, and (d)
reletting the Premises, including broker's commissions.
"The worth at the time of the award" as used in subparagraphs 1
and 2 above, is to be computed by allowing interest at the rate
of ten percent (10%) per annum. "The worth at the time of the
award" as used in subparagraph 3 above, is to be computed by
discounting the amount at the discount rate of the Federal
Reserve Bank situated nearest to the Premises at the time of the
award plus one percent (1%).
The waiver by Landlord of any breach of any term, covenant or
condition of this Lease shall not be deemed a waiver of such
term, covenant or condition or of any subsequent breach of the
same or any other term, covenant or condition. Acceptance of Rent
by Landlord subsequent to any breach hereof shall not be deemed a
waiver of any preceding breach other than the failure to pay the
particular Rent so accepted, regardless of Landlord's knowledge
of any breach at the time of such acceptance of Rent. Landlord
shall not be deemed to have waived any term, covenant or
condition unless Landlord gives Tenant written notice of such
waiver.
27.3 Landlord's Default. If Landlord falls to perform any
covenant, condition or agreement contained in this Lease within
thirty (30) days after receipt of written notice from Tenant
specifying such default, or if such default cannot reasonably be
cured within thirty (30) days, if Landlord fails to commence to
cure within that thirty (30) day' period, then Landlord shall be
liable to Tenant for any damages sustained by Tenant as a result
of Landlord's breach; provided, however, it is expressly
understood and agreed that if Tenant obtains a money judgment
against Landlord resulting from any default or other claim
arising under this Lease, that judgment shall be satisfied only
out of the rents, issues, profits, and other Income actually
received on account of Landlord's right, title and interest in
the Premises, Building or Project, and no other real, personal or
mixed property of Landlord (or of any of the partners which
comprise Landlord, if any) wherever situated, shall be subject to
levy to satisfy such judgment. If, after notice to Landlord of
default, Landlord (or any first mortgagee or first deed of trust
beneficiary of Landlord) fails to cure the default as provided
herein, then Tenant shall have the right to cure that default at
Landlord's expense. Tenant shall not have the right to terminate
this Lease or to withhold, reduce or offset any amount against
any payments of Rent or any other charges due and payable under
this Lease except as otherwise specifically provided herein.
28. BROKERAGE FEES.
Tenant warrants and represents that it has not dealt with any
real estate broker or agent in connection with this Lease or its
negotiation except those noted in Section 2.c. Tenant shall
indemnify and hold Landlord harmless from any cost, expense or
liability (including costs of suit and reasonable attorneys'
fees) for any compensation, commission or fees claimed by any
other real estate broker or agent in connection with this Lease
or its negotiation by reason of any act of Tenant.
29. NOTICES.
All notices, approvals and demands permitted or required to be
given under this Lease shall be in writing and deemed duly served
or given if personally delivered or sent by certified or
registered U.S. mall, postage prepaid, and addressed as follows:
(a) if to Landlord, to Landlord's Mailing Address and to the
Building manager, and (b) if to Tenant, to Tenant's Mailing
Address; provided, however; notices to Tenant shall be deemed
duly served or given if delivered or mailed to Tenant at the
Premises. Landlord and Tenant may from time to time by notice to
the other designate another place for receipt of future notices.
30. GOVERNMENT ENERGY OR UTILITY CONTROLS.
In the event of imposition of federal, state or local government
controls, rules, regulations, or restrictions on the use or
consumption of energy or other utilities during the Term, both
Landlord and Tenant shall be bound thereby. In the event of a
difference in interpretation by Landlord and Tenant of any such
controls, the interpretation of Landlord shall prevail, and
Landlord shall have the right to enforce compliance therewith,
including the right of entry into the Premises to effect
compliance.
31. RELOCATION OF PREMISES.
Landlord shall have the right to relocate the Premises to another
part of the Building in accordance with the following:
a. The new premises shall be substantially the same in size,
dimensions, configuration, decor and nature as the Premises
described in this Lease, and if the relocation occurs after the
Commencement Date, shall be placed in that condition by Landlord
at its cost.
b. Landlord shall give Tenant at least thirty (30) days written
notice of landlord's intention to relocate the Premises.
c. As nearly as practicable, the physical relocation of the
Premises shall take place on a weekend and shall be completed
before the following Monday. If the physical relocation has not
been completed in that time, Base Rent shall xxxxx in full from
the time the physical relocation commences to the time it is
completed. Upon completion of such relocation, the new premises
shall become the "Premises" under this lease.
d. All reasonable costs incurred by Tenant as a result of the
relocation shall be paid by landlord.
e. If the new premises are smaller than the Premises as it
existed before the relocation, Base Rent shall be reduced
proportionately
f. The parties hereto shall immediately execute an amendment to
this Lease setting forth the relocation of the Premises and the
reduction of Base Rent, if any.
g. Landlord shall not exercise its right to relocate the
Premises hereunder more than once each five (5) years during the
term of this Lease.
32. QUIET ENJOYMENT.
Tenant, upon paying the Rent and performing all of its
obligations under this Lease, shall peaceably and quietly enjoy
the Premises, subject to the terms of this Lease and to any
mortgage, lease, or other agreement to which this Lease may be
subordinate.
33. OBSERVANCE OF LAW.
Tenant shall not use the Premises or permit anything to be done
in or about the Premises which will in any way conflict with any
law, statute, ordinance or governmental rule or regulation now in
force or which may hereafter be enacted or promulgated. Tenant
shall, at its sole cost and expense, promptly comply with all
laws, statutes, ordinances and governmental rules, regulations or
requirements now in force or which may hereafter be in force, and
with the requirements of any board of fire insurance underwriters
or other similar bodies now or hereafter constituted, relating
to, or affecting the condition, use or occupancy of the Premises,
excluding structural changes not related to or affected by
Tenant's improvements or acts. The judgment of any court of
competent jurisdiction or the admission of Tenant in any action
against Tenant, whether landlord is a party thereto or not, that
Tenant has violated any law, ordinance or governmental rule,
regulation or requirement, shall be conclusive of that fact as
between landlord and Tenant.
34. FORCE MAJEURE.
Any prevention, delay or stoppage of work to be performed by
landlord or Tenant which is due to strikes, labor disputes,
inability to obtain labor; materials, equipment or reasonable
substitutes therefor, acts of God, governmental restrictions or
regulations or controls, Judicial orders, enemy or hostile
government actions. civil commotion, fire or other casualty, or
other causes beyond the reasonable control of the party obligated
to perform hereunder, shall excuse performance of the work by
that party for a period equal to the duration of that prevention,
delay or stoppage. Nothing in this Article 34 shall excuse or
delay Tenant's obligation to pay Rent or other charges under this
Lease.
35. CURING TENANT'S DEFAULTS.
If Tenant defaults in the performance of any of its obligations
under this Lease, Landlord may (but shall not be obligated to)
without waiving such default, perform the same for the account at
the expense of Tenant. Tenant shall pay landlord all costs of
such performance promptly upon receipt of a xxxx therefor.
36. SIGN CONTROL.
Tenant shall not affix, paint, erect or inscribe any sign,
projection, awning, signal or advertisement of any kind to any'
part of the Premises, Building or Project, including without
limitation, the inside or outside of windows or doors, without
the written consent of landlord. Landlord shall have the right to
remove any signs or other matter, installed without landlord's
permission, without being liable to Tenant by reason of such
removal, and to charge the cost of removal to Tenant as
additional rent hereunder, payable within ten (10) days of
written demand by landlord.
37. MISCELLANEOUS.
a. Accord and Satisfaction; Allocation of Payments. No payment
by Tenant or receipt by landlord of a lesser amount than the Rent
provided for in this Lease shall be deemed to be other than on
account of the earliest due Rent, nor shall any endorsement or
statement on any check or letter accompanying any check or
payment as Rent 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 the Rent or pursue any
other remedy provided for in this Lease. in connection with the
foregoing, Landlord shall have the absolute right in its sole
discretion to apply any payment received from Tenant to any
account or other payment of Tenant then not current and due or
delinquent.
b. Addenda. If any provision contained in an addendum to this
Lease is inconsistent with any other provision herein, the
provision contained in the addendum shall control, unless
otherwise provided in the addendum.
c. Attorneys' Fees. If any action or proceeding is brought by
either party against the other pertaining to or arising out of
this lease, the finally prevailing party shall be entitled to
recover all costs and expenses, including reasonable attorneys'
fees, incurred on account of such action or proceeding.
d. Captions, Articles and Section Numbers. The captions
appearing within the body of this Lease have been inserted as a
matter of convenience and by reference only and in no way define,
limit or enlarge the scope or meaning of this Lease. All
references to Article and Section numbers refer to Articles and
Sections in this lease.
e. Changes Requested by Lender. Neither Landlord or Tenant
shall unreasonably withhold its consent to changes or amendments
to this Lease requested by the lender on Landlord's interest, so
long as these changes do not alter the basic business terms of
this Lease or otherwise materially diminish any rights or
materially increase any obligations of the party from whom
consent to such charge or amendment is requested.
f. Choice of Law. This Lease shall be construed and enforced in
accordance with the laws of the State.
g. Consent. Notwithstanding anything contained in this Lease to
the contrary, Tenant shall have no claim, and hereby waives the
right to any claim against Landlord for money damages by reason
of any refusal, withholding or delaying by Landlord of any
consent, approval or statement of satisfaction, and in such
event, Tenant's only remedies therefor shall be an action for
specific performance, injunction or declaratory judgment to
enforce any right to such consent, etc.
h. Corporate Authority. If Tenant is a corporation, each
individual signing this Lease on behalf of Tenant represents end
warrants that he is duly authorized to execute deliver this Lease
on behalf of the corporation, and that this Lease is binding on
Tenant in accordance with its terms. Tenant shall, at Landlord's
request, deliver a certified copy of a resolution of its board of
directors authorizing such execution.
i. Counterparts. This Lease may be executed in multiple
counterparts, all of which shall constitute one and the same
Lease.
j. Execution of Lease; No Option. The submission of this Lease
to Tenant shall be for examination purposes only, and does not
and shall not constitute a reservation of or option for Tenant to
lease, or otherwise create any interest of Tenant in the Premises
or any other premises within the Building or Project. Execution
of this Lease by Tenant and its return to Landlord shall not be
binding on Landlord notwithstanding any time interval, until
Landlord has in fact signed and delivered this Lease to Tenant.
k. Furnishing of Financial Statements; Tenant's
Representations. In order to induce Landlord to enter into this
Lease Tenant agrees that it shall promptly furnish Landlord, from
time to time, upon Landlord's written request, with financial
statements reflecting Tenant's current financial condition.
Tenant represents and warrants that all financial statements,
records and information furnished by Tenant to Landlord in
connection with this Lease are true, correct and complete in all
material respects.
l. Further Assurances. The parties agree to promptly sign all
documents reasonably requested to give effect to the provisions
of this Lease.
m. Mortgagee Protection. Tenant agrees to send by certified or
registered mail to any first mortgagee or first deed of trust
beneficiary of landlord whose address has been furnished to
Tenant, a copy of any notice of default served by Tenant on
Landlord. If landlord fails to cure such default within the time
provided for in this Lease, such mortgagee or beneficiary shall
have an additional thirty (30) days to cure such default;
provided that if such default cannot reasonably be cured within
that thirty (30) day period, then such mortgagee or beneficiary.
shall have such additional time to cure the default as is
reasonably necessary under the circumstances.
n. Prior Agreements; Amendments. This Lease contains all of the
agreements of the parties with respect to any matter covered or
mentioned in this Lease, and no prior agreement or understanding
pertaining to any such matter shall be effective for any purpose.
No provisions of this Lease may be amended or added to except by
an agreement in writing signed by the parties or their respective
successors in interest.
o. Recording. Tenant shall not record this Lease without the
prior written consent of Landlord. Tenant, upon the request of
Landlord, shall execute and acknowledge a "short form" memorandum
of this Lease for recording purposes.
p. Severability. A final determination by a court of competent
jurisdiction that any provision of this lease is invalid shall
not affect the validity of any other provision, and any provision
so determined lobe invalid shall, to the extent possible, be
construed to accomplish its intended effect.
q. Successors and Assigns. This Lease shall apply to and bind
the heirs, personal representatives, and permitted successors and
assigns of the parties.
r. Time Of the Essence. Time is of the essence of this Lease.
s. Waiver. No delay or omission in the exercise of any right
or remedy of Landlord upon any default by Tenant shall impair
such right or remedy or be construed as a waiver of such default.
t. Compliance. The parties hereto agree to comply with all
applicable federal, state and local laws, regulations, codes,
ordinances and administrative orders having jurisdiction over the
parties, property or the subject matter of this Agreement,
including, but not limited to, the l964 Civil Rights Act and all
amendments thereto, the Foreign investment in Real Property Tax
Act, the Comprehensive Environmental Response Compensation and
Liability Act, and The Americans With Disabilities Act.
The receipt and acceptance by Landlord of delinquent Rent shall
not constitute a waiver of any other default; it shall constitute
only a waiver of timely payment for the particular Rent payment
involved.
No act or conduct of Landlord, including, without limitation, the
acceptance of keys to the Premises, shall constitute an
acceptance of the surrender of the Premises by Tenant before the
expiration of the Term. Only a written notice from Landlord to
Tenant shall constitute acceptance of the surrender of the
Premises and accomplish a termination of the Lease.
Landlord's consent to or approval of any act by Tenant requiring
landlord's consent or approval shall not be deemed to waive or
render unnecessary Landlord's consent to or approval of any
subsequent act by Tenant.
Any waiver by Landlord of any default must be in writing and
shall not be a waiver of any other default concerning the same or
any other provision of the Lease.
The parties hereto have executed this Lease as of the dates set
forth below.
Date: March 10, 1998 Date: March 10, 1998
Landlord: Airplaza Co., Inc. Tenant: Air Methods Corporation International
By: \s\ Xxxxxx X. Xxxxxxxx By: \s\ Xxxxx X. Xxxx
Title: President Title: Chief Financial Officer
