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EXHIBIT 10.16
OFFICE LEASE
BETWEEN
FIDDLER'S GREEN CENTER,
a Delaware limited liability company,
"LANDLORD"
AND
CONVERGENT GROUP CORPORATION,
a Delaware corporation,
"TENANT"
FOR SPACE AT
THE BUILDING KNOWN AS
FIDDLER'S GREEN CENTER - BUILDING I
Dated: August 28, 1998
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TABLE OF CONTENTS
OFFICE LEASE
1. PREMISES; BUILDING; BUILDING COMPLEX; COMMON AREAS ................ 4
2. LEASE TERM ........................................................ 4
3. RENT; SECURITY DEPOSIT ............................................ 4
A. Base Rent ...................................................... 4
B. Security Deposit ............................................... 4
4. TENANT FINISH AND ACCEPTANCE OF THE PREMISES ...................... 4
A. Landlord's Work ................................................ 4
B. Postponement of Lease Commencement Date ........................ 5
C. Partial Months; Lease Commencement Certificate ................. 5
5. OPERATING EXPENSES ................................................ 5
A. Definitions Regarding Operating Expenses ....................... 5
B. Payment of Excess Operating Expenses ........................... 9
C. Partial Years .................................................. 9
D. Survival of Tenant's Obligation ................................ 10
E. Tenant's Right to Question Excess Operating Expenses ........... 10
F. Operating Expense Adjustments .................................. 10
6. SERVICES .......................................................... 10
A. Landlord's Services ............................................ 10
B. Excess Usage ................................................... 11
C. Additional Services to Tenant .................................. 12
D. Interruption of Services ....................................... 12
E. Notice to Landlord ............................................. 12
7. QUIET ENJOYMENT ................................................... 12
8. USE AND OCCUPANCY ................................................. 12
9. MAINTENANCE AND REPAIRS ........................................... 13
A. Landlord's Obligations ......................................... 13
B. Tenant's Obligations ........................................... 13
10. ALTERATIONS AND ADDITIONS ......................................... 13
A. Alterations by Tenant .......................................... 13
B. Ownership and Removal of Alterations ........................... 14
C. Landlord's ADA Alterations ..................................... 14
11. ENTRY BY LANDLORD ................................................. 15
12. MECHANICS LIENS .................................................. 15
13. SUBLETTING AND ASSIGNMENT.......................................... 15
A. Tenant's Right ................................................. 15
B. Other Restrictions; What Constitutes an Assignment ............. 16
C. Certain Subleases .............................................. 16
D. Related Corporation Assignment ................................. 16
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E. Excess Rent..................................................... 17
14. DAMAGE TO PROPERTY; CLAIMS.......................................... 17
A. Landlord Not Liable ............................................ 17
B. Tenant's Indemnity ............................................. 17
15. INSURANCE........................................................... 17
A. Landlord's Insurance ........................................... 17
B. Tenant's Insurance ............................................. 17
C. Waiver of Claims and Subrogation ............................... 18
16. DAMAGE OR DESTRUCTION TO BUILDING .................................. 18
A. Repair of Damage ............................................... 18
17. CONDEMNATION ....................................................... 19
18. ESTOPPEL CERTIFICATE ............................................... 19
A. Duty to Provide ................................................ 19
B. Tenant's Failure to Deliver .................................... 19
19. DEFAULT BY TENANT .................................................. 19
A. Event of Default ............................................... 19
B. Remedies of Landlord ........................................... 20
C. Late Charges and Interest ...................................... 21
D. No Waiver ...................................................... 00
X. Xxxxxxxx'x Xxxx ................................................ 22
20. SUBORDINATION AND ATTORNMENT ....................................... 22
A. General ........................................................ 22
21. SURRENDER AND HOLDING OVER ......................................... 23
A. Surrender ...................................................... 23
B. Property Not Removed ........................................... 23
C. Holding Over ................................................... 23
22. LANDLORD DEFAULT ................................................... 23
23. NOTICE ............................................................. 24
24. RULES AND REGULATIONS .............................................. 24
25. PARKING ............................................................ 24
26. RIGHT TO RELOCATE TENANT ........................................... 24
27. MISCELLANEOUS ...................................................... 24
A. Limitation of Landlord's Liability ............................. 24
B. No Merger ...................................................... 25
C. Landlord's Use of Common Areas ................................. 25
D. Covenants are Independent ...................................... 25
E. Severability ................................................... 25
F. Captions and Terms ............................................. 25
G. Binding Effect; Governing Law .................................. 25
H. Tenant's Authority ............................................. 25
I. Joint and Several .............................................. 25
J. Acts Binding Landlord .......................................... 25
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K. Changes in the Building; Use of Names ........................... 26
L. Change in Light or View ......................................... 26
M. No Other Agreements; Amendments ................................. 26
N. Brokers ......................................................... 26
O. Recordation ..................................................... 26
P. Execution Required .............................................. 26
Q. Attorney's Fees ................................................. 26
R. Time of Essence.................................................. 26
28. COUNTERPARTS ....................................................... 27
29. SIGNAGE ............................................................ 27
30. MOVING ALLOWANCE ................................................... 27
31. EXCLUSIVITY ........................................................ 27
32. LEASE OF STORAGE SPACES ............................................ 27
A. Lease of Spaces ................................................. 27
B. Use ............................................................. 28
C. Base Rent and Other Matters ..................................... 28
33. OPTIONS TO INCREASE OR DECREASE PREMISES ........................... 28
A. Options ......................................................... 28
B. Exercise Notice ................................................. 28
C. Amendment ....................................................... 28
D. Not Transferable ................................................ 29
E. No Default ...................................................... 29
34. EXPANSION OPTION ................................................... 29
A. Expansion Space ................................................. 29
B. Exercise Notion ................................................. 29
C. Expansion Amendment ............................................. 29
D. Amendment ....................................................... 30
E. Not Transferable ................................................ 30
F. No Default ...................................................... 31
35. TENANT'S ABILITY TO REQUEST ADDITIONAL EXPANSION SPACE ............. 31
A. Additional Expansion Space ...................................... 31
B. Lease Terms ..................................................... 31
C. Amendment ....................................................... 32
D. Available Space ................................................. 32
E. Termination ..................................................... 32
36. RIGHT OF FIRST REFUSAL ............................................. 32
A. Exercise ........................................................ 33
B. No Default ...................................................... 33
37. OPTIONS TO EXTEND .................................................. 33
A. Exercise of Option .............................................. 33
B. Rent Determination .............................................. 33
C. Appraiser Defined ............................................... 35
D. Market Rate Defined ............................................. 35
E. Expiration of Options ........................................... 35
38. TERMINATION OPTION ................................................. 35
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A. Termination Notice .............................................. 36
B. Excused Delays .................................................. 36
C. Termination Fee ................................................. 36
D. No Default ...................................................... 36
E. Not Transferrable................................................ 36
Exhibits:
EXHIBIT A Depiction of Primary Premises
EXHIBIT B Legal Description of Building Complex
EXHIBIT C Tenant Improvement Agreement (Work Letter)
EXHIBIT C-1 Base Building/Tenant Improvement Guideline and List of Plans and
Specifications
EXHIBIT C-2 Preliminary Space Plans
EXHIBIT D Subordination, Non-Disturbance and Attornment Agreement
EXHIBIT E Rules and Regulations
EXHIBIT F Lease Commencement Certificate
EXHIBIT G HVAC Specifications
EXHIBIT H Building Area
EXHIBIT I Commission Agreement
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OFFICE LEASE
PART I
BASIC LEASE TERM SHEET
BUILDING: Fiddler's Green Center - Building I
LEASE DATE: August 28, 1998
LANDLORD: Fiddler's Green Center, LLC, a Delaware corporation
Address: 000 Xxxxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
TENANT: Convergent Group Corporation, a Delaware corporation
Address: Fiddler's Green Center Building I
0000 Xxxxx Xxxxxxx'x Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
BUILDING
MANAGER: Xxxx Xxxxxx Company, LLC, a Colorado limited liability company
Address: 0000 X. Xxxxxxx'x Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 00000
LANDLORD'S
BROKER: Xxxxxxx & Xxxxxxxxx, Inc.
TENANT'S
BROKER: CoRE Partners Inc.
(if any)
LEASED
PREMISES: Suite Number: 600 Floor: 5th and 6th - primary Premises;
1st - Distribution Space & Storage Space
Address: Fiddler's Green Center Building I
0000 Xxxxx Xxxxxxx'x Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Tenant's Rentable Area: approximately 74,094 rentable square feet*
*Includes STORAGE SPACE and DISTRIBUTION
SPACE
*See also Section 33 below
*Subject to Tenant's and Landlords
mutual agreement on a field measurement
based on BOMA standard ANS 1-265.1 -
1996, with common area factors of
3.05% for full floor space and 10.38%
for multi-tenant floors
LEASE
TERM: Lease Commencement Date: The date the Premises are Ready for
Tenant, as defined in the Lease.
Estimated Lease
Commencement Date: September 24, 1999
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Lease Expiration Date: 10th anniversary of the Commencement
Date; provided that if the Commencement
Date is other than the 1st day of a
month, the Expiration Date shall be the
last day of the month in which the 10th
anniversary of the Commencement Date
occurs.
Lease Term: 10 Years
BASE RENT: Payable in monthly
installments as follows:
Space Period Monthly Annual Per Sq. Ft.
----- ------ ------- ------ -----------
Primary* Years 1-5 $143,108.58 $1,717,303.00 $24.50
Premises Years 6-10 $157,711.50 $1,892,538.00 $27.00
Distribution Space** Years 1-10 $ 1,833.33 $ 22,000.00 $22.00
Storage Space Years 1-10 $ 5,000.00 $ 60,000.00 $20.00
*See Section 33 below
**See also Section 33 below
BASE OPERATING Base Year: 2000
EXPENSES: Tenant's Pro-Rata Share: 35.84%
SECURITY DEPOSIT: N/A
PARKING SPACES: Number of Parking Spaces: 280 total (i.e 4 per 1,000
rentable square feet) of which (i) 140 spaces (i.e., 2 per
1,000 rentable square feet) shall be provided as covered
spaces within the first phase of the parking garage to be
constructed on or before January 1, 2000 and the balance
shall be uncovered spaces; (ii) 50% of the covered parking
spaces shall be designated for Tenant's use and selected by
Tenant on a first-choice basis in the south half of the
ground level of the Phase I parking structure and the
balance will be first-come, first-served; and (iii) up to
70 of the 140 uncovered parking spaces, (1 per 1,000
rentable square feet) may, at the Landlord's option, be
located on the roof of the parking structure; provided
however, to the extent the first phase of the parking
structure is not completed on or before January 1,2000 (said
date to be extended as a result of Excused Delays, as
defined in the Work Letter) and as a result, the 140 covered
spaces are not available for Tenant's use in the parking
structure on or before such date (as the same may be
extended), then Tenant shall be entitled to a one day's Base
Rent abatement for each day that such covered parking spaces
are not completed. Further, Landlord agrees that Landlord
shall use best efforts to arrange with the owner of the
Plaza Tower One building to lease, at Landlord's sole cost
and expense, 7 covered parking spaces (on a month-to-month,
non-designated/first-come, first-served basis) for Tenant's
use, starting on the Commencement Date through the date
Phase I of the parking garage is complete ("PTO Parking
Spaces"). If Landlord is unable to arrange for such PTO
Parking Spaces, Tenant may elect to make such arrangements
itself and, if so, Landlord agrees to credit the costs
thereof (not to exceed comparable market monthly covered
parking charges) to the Base Rent hereunder.
Visitor Parking Spaces: A minimum of ten (10) parking spaces
designated as general visitor parking spaces shall be
situated near Building's entrance.
OPTIONS: See Paragraphs 33 through 38 below
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GUARANTOR: Name N/A
THIS BASIC LEASE TERM SHEET, together with the General Provisions in Part II and
any Exhibits as Part III, all constitute the entire lease between Tenant and
Landlord for the Leased Premises, made and entered into as of the Lease Date.
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PART II
GENERAL PROVISIONS
1. PREMISES; BUILDING; BUILDING COMPLEX; COMMON AREAS. In consideration of
the payment of the Rent and the performance of Landlord and Tenant's obligations
under the Lease, Landlord hereby leases to Tenant and Tenant leases from
Landlord the premises as described on the Basic Lease Term Sheet and as depicted
on Exhibit A (the "Premises") located in Building A on the land described on
Exhibit B (the "Building"), the parking as described on the Basic Lease Term
Sheet (the covered portion thereof is generally planned as a two-story covered
structure with a minimum of 158 covered spaces constructed approximately 80 feet
from Building A), together with a non-exclusive right to use all common areas
designated by Landlord for non-exclusive use of the tenants of the Building that
Landlord will construct the Building substantially in accordance with the plans
and specifications described on Exhibit C-1 ("Building Plans and
Specifications") to the Work Letter (defined in Paragraph 4). The Building,
additional buildings and structures owned by Landlord and located on the real
property from time to time, the real property, plazas, landscaped and parking
areas, drives and related easements, common areas, and appurtenances are
hereinafter collectively sometimes called the "Building Complex" whether all or
a part of it. The "Common Areas" include the exterior plazas, building
entrances, walkways, driveways, elevators, stairways, common lobbies and
corridors, and other areas designated from time-to-time by Landlord for the use
of all tenants of the Building and/or Building Complex; but specifically
excluding (without limitation) covered, handicapped and other parking reserved
for visitors and for use by those other than Tenant.
All inspections of the Premises or Building Complex during construction under
the Work Letter (defined in Paragraph 4) by Tenant its employees, architects,
agents or representatives shall be at Tenant's sole risk, and Tenant shall
indemnify and hold Landlord and its employees, partners, contractors, and
Building Manager harmless from and against any and all injuries, death, damages,
loss, claims, suits and liability arising out of any such inspection, except to
the extent caused by the gross negligence or willful misconduct of Landlord, its
agents or employees. Tenant shall not prior to the Lease Commencement Date enter
on the Premises or permit others to do so, except during normal work hours at
the Premises and after prior notice to and approval by Landlord and Landlord's
general contractor and subject to compliance with all safety requirements and
other rules of Landlord and the general contractor and the requirements of their
insurers and applicable laws and regulations.
2. LEASE TERM. The term of the Lease shall commence at 12:01 a.m. on the
Lease Commencement Date and shall terminate at 12:00 midnight on the Lease
Expiration Date, as specified on the Basic Lease Term Sheet (the "Primary Lease
Term"). The Primary Lease Term, as it may be extended, is referred to as the
"Lease Term."
3. RENT; SECURITY DEPOSIT.
A. Base Rent. Tenant shall pay to Landlord base rent for the Premises
("Base Rent") as specified on the Basic Lease Term Sheet during the Primary
Lease Term. All installments of Base Rent shall be payable in advance, on the
first day of each calendar month during the Lease Term. All Base Rent and
Additional Rent (as hereinafter defined), (collectively, "Rent") shall be paid
without notice, demand, deduction, offset, or abatement (except as otherwise
expressly provided in this Lease), at Landlord's address or at such other place
as Landlord from time-to-time designates in writing. In no event will the total
Rent to be paid by Tenant during any Lease Year ever be less than the Base Rent
plus Tenant's Pro Rata Share of increases in Operating Expenses under Paragraph
5.
B. Security Deposit. [Intentionally omitted.]
4. TENANT FINISH AND ACCEPTANCE OF THE PREMISES.
A. Landlord's Work. Landlord has agreed to make improvements or to
perform remodeling work to the Premises and provisions with respect to such work
are set forth in the work
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letter attached to this Lease as Exhibit C (the "Work Letter"). Other than as
set forth in the Work Letter, Landlord shall have no obligations for any
remodeling or other work in the Premises, and Tenant shall accept the Premises
in their "as-is" condition on the date the Premises is Ready for Tenant.
B. Postponement of Lease Commencement Date. If Landlord is to complete
the work as set forth in the Work Letter and the Premises are not Ready for
Tenant on the Estimated Lease Commencement Date (except as set forth in the Work
Letter with respect to Excused Delay) the Lease Commencement Date shall be
postponed until the earlier of: (i) the date the Premises are Ready for Tenant;
or (ii) the date Tenant takes occupancy of any of the Premises, on which date
all of the provisions of this Lease shall take effect, including the payment of
Rent. If the Premises are not Ready for Tenant, the postponement of Tenant's
obligation to pay Rent shall be in full settlement of all claims which Tenant
might otherwise have by reason of the Premises not being Ready for Tenant on the
Lease Commencement Date. "Ready for Tenant" shall mean the date that (i)
Landlord has completed any Tenant Finish Work in the Premises to be performed by
Landlord under the Work Letter and a certificate of occupancy for the Premises
has been issued, and (ii) the Building's Common Areas and landscape areas are
substantially complete in accordance with the Building Plans and Specifications.
Notwithstanding the foregoing to the contrary, if the Premises are not Ready for
Tenant on or before September 24, 1999 (such date shall be deemed extended by
the number of days that the completion of the Premises are delayed due to any
Excused Delay, as that term is defined in the Work Letter), Landlord shall
reimburse Tenant any holdover rent it shall actually pay to its existing
landlord, as evidenced by paid invoices, as a result of such delay; provided,
that such reimbursement shall not exceed 200% of Tenant's then current monthly
rent under the current year of its existing lease and such reimbursement
obligation shall only be applicable until the date the Premises are Ready for
Tenant; provided, further, that if the Premises are not Ready for Tenant on or
before April 1, 2000, then Tenant shall have the option, by written notice
delivered to Landlord on or before April 6, 2000, to elect to terminate this
Lease.
C. Partial Months; Lease Commencement Certificate. If the Lease
Commencement Date does not begin on the first day of a month, Tenant shall pay
proportionate Rent in advance for the partial month and the partial month shall
be considered part of the first Lease Year (as defined in subparagraph 5.A). In
the event the Lease Commencement Date is delayed, the Lease Expiration Date
shall be extended so that the Primary Lease Term will continue for the full
period set forth in the Basic Lease Term Sheet. At the request of either party,
Landlord and Tenant shall execute a Lease Commencement Certificate, the form of
which is attached hereto as Exhibit F, setting forth among other things the
Lease Commencement Date and the Lease Expiration Date.
5. OPERATING EXPENSES.
A. Definitions Regarding Operating Expenses. The following terms have
the following meanings with respect to their use in this Lease:
(1) "Base Operating Expenses" is the per square foot amount of actual
Operating Expenses for the Base Year specified on the Basic Lease Term Sheet
multiplied by the Building Rentable Area. It is understood and acknowledged by
Tenant that Landlord has not made any representation or given Tenant any
assurances regarding current or Base Operating Expenses or Additional Rent
resulting from the calculation of Base Operating Expenses (any estimates
provided by Landlord are non-binding estimates only). In the event that the
actual Operating Expenses during any year are less than the Base Operating
Expenses, Tenant shall not be entitled to any refund, credit or other form of
reimbursement.
(2) "Building Rentable Area" means 206,734, which is the total
rentable square footage of the Building. If there is a significant change in the
Building Rentable Area as a result of an addition to the Building, partial
destruction, modification to building design, or similar cause which causes a
reduction or increase thereto on a permanent basis, Landlord shall make such
adjustments in the computations as shall be necessary to provide for any such
change.
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(3) "Tenant's Pro Rata Share" means the percentage specified on the
Basic Lease Term Sheet. In the event Tenant, at any time during the Lease Term,
leases additional space in the Building or the Premises are reduced, Tenant's
Pro Rata Share shall be recomputed by dividing the total rentable square footage
of space then being leased by Tenant (including any additional space) by the
Building Rentable Area, and the resulting percentage figure shall become
Tenant's Pro Rata Share.
(4) "Lease Year" means each calendar year during the Lease Term,
except that the first Lease Year shall begin on the Lease Commencement Date and
end on December 31 of that year, and the last Lease Year shall begin on January
1 of the calendar year in which this Lease expires or is terminated and end on
the date it expires or terminates. If the first or last Lease Year is less than
12 months, Operating Expenses for these years shall be prorated.
(5) "Operating Expenses" means all operating expenses of any kind or
nature as reasonably determined by Landlord and which are incurred in connection
with the ownership, operation and maintenance of the Building Complex. Operating
Expenses shall include, but not be limited to:
(a) All real property taxes and assessments levied against the
Building Complex by any governmental or quasi-governmental authority, including
any taxes, assessments, reassessments, surcharges, imposition, or under any
covenants, declarations, easements or restrictions, or other service, tax or
other fees of a nature now in effect or which shall hereafter be levied on the
Building Complex as a result of the use, ownership or operation of the Building
Complex or for any other reason, whether in lieu of or in addition to, any
current real estate taxes and assessments; provided, however, in no event shall
the terms "taxes" or "assessments" include any federal or state income taxes
levied or assessed on Landlord, unless those taxes are a substitute for real
property taxes or any special assessments incurred to construct the Building
Complex or acquire the Real Estate to do so (collectively referred to as
"Taxes"). Expenses incurred by Landlord for tax consultants and in contesting
the amount or validity of any Taxes shall be included in such computations.
"Assessments" shall include general and special assessments, license tax,
business license fee, business license tax, commercial rental tax, levy, charge
penalty or tax, imposed by any authority having the direct power to tax,
including any city, county, state or federal government, or any school,
agricultural, lighting, water, drainage or other improvement or special
district, against the Premises, the Building or Building Complex or any legal or
equitable interest of Landlord therein. For the purposes of this Lease, any
special assessments shall be deemed payable in such number of installments as is
permitted by law, whether or not actually so paid and the taxes for the Base
Year Building shall be set as though the Building is fully assessed during the
Base Year. Provided that Tenant requests in a timely fashion, Tenant may request
that Landlord protest the assessed valuation of the Building's tax parcel (real
estate and improvements) whenever Tenant reasonably believes the assessed
valuation is too high.
(b) Costs of cleaning and other supplies, tools, materials and
equipment;
(c) Costs incurred in connection with obtaining and providing
energy for the Building Complex, including costs of propane, butane, natural
gas, steam, electricity, solar energy and fuel oils, coal or any other energy
sources as well as costs for heating, ventilation, and air conditioning services
("HVAC");
(d) Costs of water and sanitary and storm drainage services;
(e) Costs of security services, janitorial services and parking
garage attendants;
(f) Costs of maintenance, repairs, alterations, improvements and
replacements, including materials, labor, equipment and maintenance contracts;
and
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(g) Costs of maintenance and replacement of landscaping; and
costs of maintenance, repair, resurfacing, striping and repairing parking areas
and Common Areas, including trash, ice and snow removal;
(h) Insurance premiums in connection with the insurance carried
by Landlord in accordance with Paragraph 15, including fire and all-risk
coverage, together with loss of rent endorsement; the part of any claim required
to be paid under the deductible portion of any insurance policy carried by
Landlord in connection with the Building Complex; public liability insurance and
any other insurance carried by Landlord on the Building Complex;
(i) Labor costs, including wages and other payments, costs to
Landlord of workmen's compensation and disability insurance, payroll taxes,
fringe benefits, pension, profit sharing for all individuals engaged in
operating, maintaining or providing security, traffic control or other services
and all legal fees and other costs or expenses incurred in resolving any labor
dispute;
(j) Professional building management fees and costs of Building
management space occupied by the Building Manager or its agents;
(k) Legal, accounting, inspection, and consultation fees
(including fees charged by consultants retained by Landlord for services that
are designed to produce a reduction in Operating Expenses or to reasonably
improve the operation, maintenance or state of repair of the Building Complex)
incurred in the ordinary course of operating the Building Complex; and a general
overhead and administrative charge equal to 2% percent of all Operating Costs.
(l) The costs of capital improvements and structural repairs and
replacements made in or to the Building Complex or the cost of any machinery or
equipment installed in the Building Complex in order to conform to any
applicable laws, ordinances, rules, regulations or orders of any governmental or
quasi-governmental authority having jurisdiction over the Building Complex
("Required Capital Improvement"); the costs of any capital improvements and
structural repairs and replacements designed primarily to reduce Operating
Expenses ("Cost Savings Improvements"); and a reasonable annual reserve for all
other capital improvements and structural repairs and replacements reasonably
necessary to permit Landlord to maintain the Building Complex. The expenditures
for Cost Savings Improvements shall be limited in any year to the amount of the
resulting reduction of Operating Expenses; and
(m) The cost of space allocated to the portion of the Building
utilized for the restaurant/delicatessen operation, unless such space is paid
for by the operator of such operation, and limited to office space market rent,
in effect from time to time, for no more than 750 rentable square feet.
(n) In addition to those Operating Expenses related solely to the
Building, Operating Expenses shall also include an equitable allocation of those
operating expenses which relate to both the Building and other buildings,
improvements, landscaping, parking improvements and real property comprising the
Building Complex.
(o) Any other expense which under generally accepted real estate
standards for the metropolitan area where the Building is located would be
considered Operating Expenses.
(6) "Operating Expenses" shall not include (a) costs of work,
including painting and decorating and tenant improvement work, which Landlord
performs for any tenant in the Building which is not for the benefit of all or
most tenants of the Building; (b) costs of repairs or other work occasioned by
fire, windstorm or other insured casualty to the extent of insurance proceeds
received by Landlord; (c) leasing commissions, advertising expenses, and other
costs incurred in leasing space in the Building; (d) costs of repairs or
rebuilding necessitated by condemnation; (e) any interest on borrowed money or
debt amortization on Landlord's mortgages on the Building, except as
specifically set forth above; or (f) depreciation on the Building; (g) wages,
salaries, fees, and fringe
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benefits paid to individuals who are executive personnel or officers or partners
of Landlord (Tenant acknowledges that Building Manager is a Member of Landlord
and will be paid a property management fee by Landlord); (h) other than as
provided in Paragraph 5.A(5), any charge for depreciation of the Building or
equipment and any interest or other financing charge; (i) any charge for
Landlord's income taxes, excess profit taxes, franchise taxes, or similar taxes
on Landlord's business; (j) all costs for which Tenant or any other tenant in
the Building is being charged other than pursuant to the operating expense
clauses; (k) the costs of correcting defects in the construction of the
Building, or in the building equipment, due to defective or illegal
construction, except that conditions (not occasioned by construction defects)
resulting from ordinary wear and tear will not be deemed defects for the purpose
of this category; (l) the cost of any repair made by Landlord because of the
total or partial destruction of the Building, or the condemnation of a portion
of the Building; (m) the cost of any items for which Landlord is reimbursed by
insurance or otherwise compensated by parties other than tenants of the Building
pursuant to clauses similar to this paragraph or the cost of any increase in
insurance premiums to the extent that such increase is solely and directly
attributable to the use, occupancy or activity of another Tenant in the
Building; (n) other than Required Capital Improvements or Cost Savings
Improvements, the cost of any additions or capital improvements to the Building
subsequent to the date of original construction; (o) the cost of any removal,
treatment or abatement of asbestos or any other hazardous substance or gas in
the Building or on Tenant's Premises (however, to the extent such asbestos or
hazardous substance results from Tenant's or its agents' actions or inactions,
such costs shall be reimbursed to Landlord by Tenant as Tenant's direct
expense); (p) any operating expense representing an amount paid to a related
corporation, entity, or person which is in excess of the amount which would be
paid in the absence of such relationship; (q) the cost of tools and equipment
used initially in the construction of the Building; (r) the cost of alterations
of space in the Building leased to other tenants; (s) the cost of overtime or
other expense to Landlord in curing its defaults or performing work expressly
provided in this Lease to be borne at Landlord's expense; (t) ground rent or
similar payments to a ground lessor; and (u) late payments charges and
penalties.
Further, Landlord may elect to cause the Building Complex to be annexed
into the City of Greenwood Village ("City"). If so, the parties acknowledge that
the City will impose on Tenant an Occupational Privilege Tax for each of
Tenant's employees ("Head Tax") and a sale/use Tax on any tangible property
purchased outside the City and utilized within the City for Tenant's business
operations in the Premises ("Sales Tax"). Only during the initial term of the
Premises, Landlord agrees to credit against Tenant Base Rent that amount paid by
Tenant for its employers' share of the Head Tax. Further, only during the
initial term of the Premises, Landlord agrees to likewise credit against
Tenant's Base Rent, the Sales Tax paid by Tenant to the City during any calendar
year limited, however, to only the amount of the Sales Tax imposed by the City
on the first Two Million Dollars of such tangible property purchased by Tenant
in any such calendar year. All amounts to be credited by Landlord hereunder
shall be net of any rebate or abatement of Head Taxes and/or Sales Taxes
provided to Tenant by the City pursuant to the terms of the Annexation Agreement
annexing the Building Complex into the City. Tenant shall submit to Landlord in
January of each calendar year during the Term, copies of all applicable reports
pertaining to Tenant's payment of the Head Tax and Sales Tax, with supporting
backup and cancelled checks filed with an paid to the City for the prior
calendar year, and Landlord shall credit such amount paid by Tenant, and not
subsequently rebated or abated by the City, to the Base Rent due and payable by
Tenant in March of the then current calendar year.
(7) For purposes of determining Tenant's Pro Rata Share of Excess
Operating Expenses, as hereinafter defined in Paragraph 5.B, for each calendar
year during the Term following the Base Year, increases in the Operating
Expenses, excluding increases in those Operating Expenses identified in
Paragraph 5.A(5)(a), (c), (d) and (h) and Required Capital Improvements as
defined in Paragraph 5.A(5)(a)(l) above), (the "Capped Operating Expenses")
shall be limited to the lesser of (a) the actual increase in said Capped
Operating Expenses or (b) 125% of the percentage increase, if any, in the
Consumer Price Index, as hereinafter defined, between the Base Consumer Price
Index, as hereinafter defined, and each Adjustment Consumer Price Index, as
hereinafter defined, throughout the initial Lease Term (i.e., if the Consumer
Price Index increases by 3%, any increases in the total of the Capped Operating
Expenses shall, for determining Tenant's Pro Rata Share, be deemed capped at
3.75%). "Consumer Price Index" shall mean the Revised Consumer Price Index, All
Urban
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Consumers index years 1982-84, for Denver-Boulder-Greeley, Colorado, as
published by the United States Department of Labor, Bureau of Labor Statistics.
If the manner in which the Consumer Price Index is determined by the Bureau of
Labor Statistics shall be substantially revised, including a change in the base
index year, an adjustment shall be made by Landlord in such revised index
which would produce results equivalent, as nearly as possible, to those which
would have been obtained if such Consumer Price Index had not been so revised.
If the Consumer Price Index shall become unavailable to the public because
publication is discontinued, or otherwise, or if equivalent data is not readily
available to enable Landlord to make the adjustment referred to herein, then
Landlord will substitute therefor a comparable index based upon changes in the
cost of living or purchasing power of the consumer dollar published by any other
governmental authority or, if no such index shall be available, then a
comparable index published by a major bank or other financial institution or by
a university or a recognized financial publication; provided, however, that
Landlord may make adjustments to such substitute index necessary to produce
substantially the same results as would have been obtained under the unavailable
index. "Base Consumer Price Index" shall mean the Consumer Price Index for the
calendar month immediately preceding the calendar month in which the Term
commences. "Adjustment Consumer Price Index" shall mean the Consumer Price Index
for the same calendar month as the Base Consumer Price Index during each year of
the initial Lease Term following the year 2000.
B. Payment of Excess Operating Expenses. It is hereby agreed that
following the Base Year and continuing each month thereafter through the Lease
Term, Tenant shall pay to Landlord as Additional Rent at the same time as Base
Rent is paid an amount equal to 1/12 of Landlord's estimate of Tenant's Pro Rata
Share of the increase in Operating Expenses for the particular Lease Year in
excess of the Base Operating Expenses (the "Excess Operating Expense"). Landlord
shall deliver to Tenant, as soon as practicable following the end of any Lease
Year, an estimate of the Excess Operating Expenses for the new Lease Year (the
"Budget Sheet"). Until receipt of the Budget Sheet, Tenant shall continue to pay
its current monthly Tenant's Pro Rata Share of Excess Operating Expenses based
upon the estimate for the preceding Lease Year. If the Budget Sheet reflects an
estimate of Tenant's Pro Rata Share of Excess Operating Expenses for the new
Lease Year greater than the amount actually paid to the date of receipt of the
Budget Sheet for the new Lease Year, Tenant shall pay such amount to Landlord
within 30 days of receipt of the Budget Sheet. Upon receipt of the Budget Sheet,
Tenant shall thereafter pay the amount of its monthly Tenant's Pro Rata Share of
the Excess Operating Expenses as set forth in the Budget Sheet. As soon as
practicable following the end of any Lease Year, but not later than May 1,
Landlord shall submit to Tenant a statement in reasonable detail describing the
computations of the Excess Operating Expenses setting forth the exact amount of
Tenant's Pro Rata Share of the increase, if any, in Operating Expenses for the
Lease Year just completed, and the difference, if any, between the actual
Tenant's Pro Rata Share of the increase in Operating Expenses for the Lease Year
just completed and the estimated amount of Tenant's Pro Rata Share of the Excess
Operating Expenses for such Lease Year (the "Statement"). Notwithstanding the
foregoing, Landlord's failure to deliver the Statement to Tenant on or before
May 1 shall not be a waiver of Landlord's rights under this Paragraph. If the
actual Tenant's Pro Rata Share of the Excess Operating Expenses for the period
covered by the Statement is higher than the estimated Tenant's Pro Rata Share of
the Excess Operating Expenses which Tenant previously paid during the Lease Year
just completed, Tenant shall pay to Landlord the difference within 30 days
following receipt of the Statement from Landlord. If the actual Tenant's Pro
Rata Share of the Excess Operating Expenses for the period covered by the
Statement is less than the estimated Tenant's Pro Rata Share of the Excess
Operating Expenses which Tenant previously paid during the Lease Year just
completed, Landlord shall credit the excess against any sums then owing or next
becoming due from Tenant under this Lease. In no event will Rent be less than
Base Rent. In the event the Building is not fully occupied during any particular
Lease Year, Landlord shall adjust those Operating Expenses which are affected by
the occupancy rates for the particular Lease Year (including the Base Year), or
part of it, as the case may be, to reflect an occupancy of 95% percent of the
Building Rentable Area.
C. Partial Years. If the Lease Term covers a period of less than a full
calendar year during the first or last Lease Years, Tenant's Pro Rata Share of
the increase in Operating Expenses for the partial year shall be calculated by
proportionately reducing Operating Expenses to reflect the number of months in
that year.
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D. Survival of Tenant's Obligation. Landlord's and Tenant's
responsibilities with respect to the Excess Operating Expense survive the
expiration or termination of this Lease and Landlord shall have the right to
retain the Security Deposit, or so much thereof as it deems necessary, to secure
Tenant's obligations attributable to the Lease Year in which this Lease
terminates.
E. Tenant's Right to Question Excess Operating Expenses. If Tenant
questions the amount of Excess Operating Expenses as shown by the Statement,
Tenant shall notify Landlord within 30 days after receipt of the Statement. If
Tenant does not give Landlord notice within that time period, Tenant shall have
waived its right to dispute the Statement. If Tenant timely gives notice, it
shall have 90 days after giving notice to hire, at Tenant's sole expense, an
accredited member of the Colorado Society of CPA's ("Tenant's Accountants"), to
examine Landlord's books and records for the purpose of verifying the accuracy
of the Statement. If Tenant's Accountants determine that an error has been made,
notice describing the error in reasonable detail must be given to Landlord
during that 90-day period, or the right to question the Statement shall be
waived; and if such a notice is given, Landlord and Tenant shall endeavor to
agree upon the matter within the following 30 days. All information disclosed to
Tenant or Tenant's Accountants in connection with any such review shall be kept
confidential by Tenant and Tenant's Accountants and shall not be disclosed or
used by Tenant or Tenant's Accountants for any reason other than to verify
information set forth in the Statement. Notwithstanding the pendency of any
dispute over any particular Statement, Tenant shall continue to pay Landlord the
amount of the adjusted monthly installments of Additional Rent based upon the
Statement until the dispute is resolved. Delay by Landlord in submitting any
Statement for any Lease Year shall not affect the provisions of this Paragraph
or constitute a waiver of Landlord's rights as set forth herein for that or any
subsequent Lease Year.
F. Operating Expense Adjustments. Notwithstanding anything in this Lease
to the contrary, if any lease entered into by Landlord with any tenant in the
Building is on a "net" basis, or provides for a different basis of computation
for any Operating Expenses with respect to its leased premises, then, to the
extent that Landlord determines that an adjustment should be made in making the
computations of Operating Expenses under this Lease, Landlord may modify the
computation of Base Operating Expenses, Building Rentable Area, and Operating
Expenses for any Lease Year in order to eliminate or otherwise modify any such
expenses which are paid for in whole or in part by that tenant. Furthermore,
Landlord shall also be permitted to make such adjustments and modifications to
the provisions of this Paragraph as shall be reasonably necessary to achieve the
intent of this Lease or the intention of the parties hereto.
6. SERVICES.
A. Landlord's Services. Subject to the provisions of subparagraph 6D,
Landlord in accordance with standards established by Landlord from time to time
for the Building, agrees: (1) to furnish running water for use in lavatories and
drinking fountains (and to the Premises if the Space Plans for the Premises so
provide); (2) to furnish, during Ordinary Business Hours, as hereinafter
defined, heated or cooled air to the Premises as may, in the judgment of
Landlord, be reasonably required for the comfortable use and occupancy of the
Premises, provided that during Ordinary Business Hours Landlord shall use
reasonable efforts to cause the temperature within the Premises to be within the
range of 68 degrees to 74 degrees Fahrenheit ("Premises Temperature Range").
Further, if (i) the requirements of this Lease for occupancy and use of the
Premises are complied with by Tenant, and (ii) the Premises are used only for
standard office use and in accordance with Building HVAC design specification
and assumptions, as set forth in Exhibit G attached, then, if a substantial
portion of the Premises' (10% or more of the square footage of the Premises)
temperature is outside the Premises' Temperature Range for one (1) entire
consecutive business day (during that day's entire Ordinary Business Hours, as
hereinafter defined), following Landlord receipt of written notice (delivered
pursuant to the notice requirements hereof, along with reasonable third-party
evidence establishing the same), the Base Rent hereunder (pro rata as to the
affected square footage area within the Premise) shall be abated, per diem, for
each business day after receipt of said notice that the temperature of the
Premises falls outside of the Premises Temperature Range, which abatement shall
be Tenant's sole and exclusive remedy. Notwithstanding the foregoing to the
contrary, if the reason the Premises' temperature falls
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outside of the Premises Temperature Range is due to a power failure to the
Building or other force majeure event, the foregoing abatement shall not be
available to the Tenant. Finally, Tenant acknowledges that Tenant shall use
commercially reasonable judgment in determining the need to notify the Landlord
under the above provisions, recognizing the rapid changes in outside climate and
temperature may result in short-lived temperature drops or increases in the
Premises, which the Building's HVAC system will compensate for within typical
system recovery times; (3) to provide, during Ordinary Business Hours, the
general use of passenger elevators for ingress and egress to and from the
Premises and such elevators to be equipped (i) so that at least one elevator
returns to the sixth floor when elevators are not in use and (ii) to provide
restricted access to the fifth and sixth floors of the Premises; provided,
however, that if Tenant elects to reduce the Premises, as hereinafter provided
in Paragraph 33, then such restricted access shall only be applicable to the
sixth floor of the Premises; (4) to provide to the Premises the standard
janitorial services provided for other tenants of the Building (including such
window washing of the outside of exterior windows as may, in the judgment of
Landlord, be reasonably required), after Ordinary Business Hours five days each
week, excluding Holidays; (5) to cause electric current to be supplied to the
Premises for all of Tenant's Standard Electrical Usage; (6) to provide
controlled access services for the Building Complex; and (7) to use best efforts
to cause the operation of an automatic teller machine and restaurant/
delicatessen operation for tenants and invitees; provided, however,
that Tenant acknowledges that such services may be periodically unavailable due
the operators thereof, from time to time, electing to quit or being terminated
by Landlord. "Tenant's Standard Electrical Usage" means electrical consumption
for the standard tenant lighting used in the Building and ordinary office
equipment that operates on standard 110 voltage (and/or Tenant's Standard
Equipment, as hereinafter defined, even if the same does not operate on standard
110 voltage) and does not require special or additional ventilation or air
conditioning and shall be equal to at least an average of 8 kilowatts per
rentable square foot within the Premises. "Ordinary Business Hours" as used
herein means 7:00 a.m. to 7:00 p.m. Monday through Friday and 8:00 a.m. to 1:00
p.m. on Saturdays, Holidays excepted. "Holidays," as used herein, means New
Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day,
Christmas Day, and such other national holidays as may be observed by national
banks in Denver, Colorado. Notwithstanding the foregoing, Tenant and its
employees shall be provided means of access to the Building and associated
parking structure at all times outside of Ordinary Business Hours, upon
compliance with Landlord's after-hours access regulation. The definitions of
Tenant's Standard Electrical Usage, Ordinary Business Hours, Holidays and Excess
Usage, as hereinafter defined, shall be uniform as to all tenants in the
Building.
B. Excess Usage. "Excess Usage" means any usage of electricity (1)
during other than Ordinary Business Hours; or (2) in an amount in excess of
Tenant's Standard Electrical Usage; or (3) for "Special Equipment"; or (4) for
any requirement for standard HVAC services during other than Ordinary Business
Hours. "Special Equipment" means (a) any equipment requiring a voltage other
than 110 volts, single phase, or (b) equipment that requires the use of
self-contained HVAC units; provided, however, that notwithstanding the foregoing
to the contrary, the term Special Equipment shall not include laser jet
printers, copy machines, computer servers or APC UPS Units ("Tenant's Standard
Equipment"). If Tenant desires Excess Usage, it shall give Landlord at least 24
hours prior notice, and Landlord shall use reasonable efforts to supply it, at
the expense of Tenant, at Landlord's actual out-of-pocket expense, without
xxxx-up. Tenant shall reimburse Landlord for reasonable costs incurred by
Landlord in providing services for Excess Usage. Reasonable costs shall include
Landlord's costs for materials, additional wear and tear on equipment,
utilities, and labor (including fringe benefits and overhead costs). Computation
of Landlord's cost for providing Excess Usage will be made by Landlord's
engineer, based on his engineering survey of Tenant's Excess Usage. Tenant shall
also reimburse Landlord for all costs of supplementing the Building HVAC System
and/or extending or supplementing any electrical service, as Landlord may
determine is necessary, as a result of Tenant's Excess Usage. Prior to
installation or use by Tenant of any equipment which will result in Excess Usage
or operation of the Premises for extended hours on an ongoing basis, Tenant
shall notify Landlord of such intended installation or use and obtain Landlord's
consent. In addition, Landlord shall have the right, if it determines based on
its reasonable judgment that Tenant is using electric current in excess of
Tenant's Standard Electrical Usage, to require Tenant at Tenant's sole cost and
expense, to install a check meter and/or flow meter to determine the amount of
such Excess Usage, and the cost of the
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check meter and/or flow meter, including monitoring, installation and repair,
shall be paid by Tenant. Landlord shall use reasonable efforts to cause the
Building to be equipped with uninterrupted power supply system.
C. Additional Services to Tenant. If Tenant requires janitorial or other
services in addition to those required to be provided to all other tenants of
the Building, Tenant shall pay for those services monthly as Additional Rent. In
addition, Tenant shall pay as Additional Rent monthly with Base Rent any and all
charges for utility services supplied and materials furnished directly to the
Premises. It is also understood and agreed that Tenant shall pay the cost of
replacing light bulbs and/or tubes and ballast used in all lighting in the
Premises other than the standard tenant lighting used in the Building.
D. Interruption of Services. Landlord may discontinue, reduce, or
curtail heating, air conditioning, elevator, electrical, janitorial, lighting,
or other services, or any of them, at such times as it may be necessary by
reason of accident, repairs, alterations, improvements, strikes, lockouts,
riots, acts of God, application of Laws (as hereinafter defined) or due to any
other happening beyond the control of Landlord. In the event of any
interruption, reduction, or discontinuance of Landlord's services Landlord
shall, if possible, give advance notice to Tenant, but Landlord shall not be
liable for damages to Tenant or any other party as a result thereof nor shall
the occurrence of any such event in any way be construed as an eviction of
Tenant, cause or permit an abatement, reduction or set off of Rent, or operate
to release Tenant from any of Tenant's obligations under this Lease.
E. Notice to Landlord. Tenant shall promptly notify Landlord or the
Building Manager of any interruption in the Building services or of any defects
in the Building or Building systems of which Tenant becomes aware and of which
Landlord is not aware, including defects in pipes, electric wiring, and HVAC
equipment. In addition, Tenant shall provide Landlord with prompt notification
of any matter or condition of which it becomes aware which may cause injury or
damage to the Building, the Building Complex, or to any person or property.
7. QUIET ENJOYMENT. Subject to the provisions of this Lease, all Laws and
any mortgage, easement, covenants, reservations or other encumbrances on the
Building Complex, Landlord agrees to warrant and defend Tenant in the quiet
enjoyment and possession of the Premises during the Lease Term against any
person claiming under Landlord, so long as Tenant complies with its obligations
to pay Rent and performs all of its other obligations under this Lease. Landlord
shall use reasonable efforts to cause any party whose construction activities in
the Building result in extraordinary construction noise to conduct those such
extraordinary construction noise activities at times other than Ordinary
Business Hours. Further, Landlord represents that the roof-top HVAC units
background sound levels will not exceed ASHRAE guidelines for Office Buildings
as published in the 1995 HVAC Applications Handbook, Chapter 43, Table 2.
8. USE AND OCCUPANCY. The Premises shall be used and occupied as business
offices for the operation of Tenant's consulting and computer system integration
services as related to the GIS industry (the "Permitted Use") and for no other
purpose, and Tenant shall use it in a careful, safe, and proper manner, and pay
on demand for any damage, including repair of damage, to the Building Complex
caused by the use, act or neglect by Tenant, Tenant's agents or employees, or
any other person entering upon the Premises under express or implied invitation
of Tenant. Tenant shall at its sole cost, comply with all applicable federal,
state, city, quasi-governmental and utility provider laws, statutes, ordinances,
orders, codes, rules, regulations, covenants and restrictions now or hereafter
in effect, including the Americans With Disabilities Act ("ADA") and all
environmental laws (collectively referred to as "Laws") applicable to Tenant's
use, occupancy or alteration of the Premises, and Tenant shall obtain all
permits or licenses required for its business conducted at the Premises;
provided, however, that Landlord, at its sole cost and expense, shall use its
best efforts to cause the architect to design the Tenant Finish Work and the
Building to be in compliance with the ADA as interpreted on the date hereof.
Tenant shall not commit waste or permit waste to be committed or cause or permit
any unpleasant odor or noise or other nuisance in or from the Premises or on the
Building Complex. Tenant shall not use the Premises for any use that causes an
increase in rates or cancellation of any insurance policy covering the Building
Complex. Tenant shall not store, keep, use, sell, dispose of or
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offer for sale in, upon or from the Premises or the Building Complex any article
or substance prohibited by any insurance policy covering the Building Complex or
the Premises nor shall Tenant keep, store, produce, dispose of or release on, in
or from the Premises or the Building Complex (or allow others to do so) any
substance which may be deemed an infectious waste, hazardous waste, hazardous or
toxic material, or hazardous substance under any Laws (collectively called
"Hazardous Materials") except customary office and cleaning supplies stored and
used in accordance with Laws. Tenant represents and warrants to Landlord that it
shall not bring onto or allow other to bring any Hazardous Materials onto the
Building Complex, and that it has received no notice or complaint from any
governmental authority or third party that the business it intends to operate in
the Premises or that any property or materials it intends to keep or allow on
the Building Complex or in the Premises is a Hazardous Material or violates any
Laws. Tenant shall give prompt notice to Landlord of any such notice or
complaint it has received or does receive in the future. Tenant shall pay when
due any taxes assessed with respect to Tenant's use or occupancy of the Premises
and Tenant's Property (as defined in Paragraph 10) and any Alterations made by
Tenant.
9. MAINTENANCE AND REPAIRS.
A. Landlord's Obligations. Landlord shall, subject to reimbursement as
part of Operating Expenses, to the extent deemed reasonably necessary by
Landlord for operations of the Building Complex, repair and maintain: the
structural portions of the Building, elevators and escalators (if any),
plumbing, air conditioning, heating and electrical systems installed or
furnished by Landlord, the Building roof, the curtain wall, including all glass
connections at the perimeter of the Building, all exterior doors, including any
exterior plate glass within the Building, Building telephone and electrical
closets owned or operated by Landlord, the Common Areas of the Building Complex,
landscaping, and interior portions of the Building above and below grade which
are not within space leased to Tenant or other tenants in the Building. Landlord
shall have no obligation to make improvements to or to repair or maintain the
Premises during the Lease Term except as expressly required in this Lease or in
the Work Letter.
B. Tenant's Obligations. Tenant, at Tenant's sole cost and expense,
except for services furnished by Landlord pursuant to Paragraph 6 and Landlord's
obligations under Paragraph 9A, shall maintain, in good order, condition,
repair, and appearance the Premises, including the interior surfaces of the
ceilings (if damaged or discolored due in whole or in part to the act, neglect,
omission or fault of Tenant), walls and floors, all doors, interior glass
partitions or glass surfaces (not exterior windows) and pipes, electrical
wiring, switches, fixtures and other special items exclusively serving the
Premises, subject to the provisions of Paragraph 14. In the event Tenant fails
to maintain the Premises as required by this Paragraph, Landlord shall give
Tenant notice to do such acts as are required by this Paragraph. If within a
reasonable time not to exceed 30 days following Landlord's notice, Tenant fails
to perform its obligations under this Paragraph, or if those obligations cannot
reasonably be completed within 30 days, fails to promptly commence such work and
diligently pursue it to completion within a reasonable time not to exceed 90
days, then Landlord shall have the right, but shall not be required, to do such
acts and expend such funds at the expense of Tenant as are reasonably required
to perform those obligations, without curing Tenant's default. The funds so
expended plus 20% of such amounts as an overhead/administrative charge shall be
due and payable by Tenant within 10 days after receipt of Landlord's invoice. In
addition to the foregoing, Landlord shall install, at its sole cost and expense,
surveillance cameras (with video components and with a monitor screen(s)
installed in the Premises) adjacent to the Building elevators on the floors of
the Building which include the office space portions of the Premises
("Surveillance System"). Tenant, at its sole cost and expense, shall be
responsible for the monitoring, operation and maintenance of such Surveillance
System.
10. ALTERATIONS AND ADDITIONS.
A. Alterations by Tenant. Except as expressly provided in the Work
Letter, Tenant shall make no alterations, additions or improvements to the
Premises or the Building Complex (the "Alterations"), including the installation
of equipment or machinery which requires modifications to existing electrical
outlets or increases Tenant's usage of electricity beyond Tenant's Standard
Electrical
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Usage without obtaining the prior written consent of Landlord. Tenant shall
submit any such reasonable request to Landlord at least 30 days prior to the
commencement of the Alterations. Landlord may impose, as a condition to its
consent, and at Tenant's sole cost, such requirements as Landlord may deem
necessary in its judgment, including the manner in which the Alterations are
done, the times during which the work is to be accomplished, approval of all
plans and specifications, and the procurement of all licenses and permits.
Landlord shall be entitled to or to require Tenant to post notices on and about
the Premises with respect to Landlord's non-liability for the Alterations and
Tenant shall not permit those notices to be defaced or removed. Tenant further
agrees not to connect any apparatus, machinery or device to the Building
systems, including electric wires, water pipes, fire, safety, heating and
mechanical systems, without the prior written consent of Landlord. Alterations
which Tenant is permitted to make shall be performed in a good and workmanlike
manner and in compliance with this Lease.
If Landlord permits any Alterations, then prior to the commencement of
those Alterations, Tenant shall deliver to Landlord certificates (and copies of
the policies if requested by Landlord) issued by insurance companies qualified
to do business in the state where the Premises are located evidencing that
workmen's compensation, public liability insurance and property damage
insurance, builder's risk coverage (if applicable) all in amounts, with
companies and on forms satisfactory to Landlord, are in force and maintained by
all such contractors and subcontractors engaged by Tenant to perform the work.
All such policies shall name Landlord as an additional insured and shall provide
that they may not be canceled or modified without 30 days' prior notice to
Landlord.
Tenant, at its sole cost and expense, shall cause any permitted Alterations
to be performed in compliance with all applicable requirements of insurance
policies, Laws, and governmental bodies having jurisdiction, in such manner as
not to interfere with other tenants or interfere with, delay, or impose any
additional expense upon Landlord in the construction, maintenance or operation
of the Building Complex, and so as to maintain harmonious labor relations in the
Building and to not disturb other tenants' use of their premises or interfere
with Landlord's operation of the Building Complex. In addition, Tenant, at its
sole cost and expense, shall be responsible for the acquisition of auxiliary
aids, required under the ADA, including all Alterations required: (i) as a
result of Tenant, or any subtenant, assignee or concessionaire, being a Public
Accommodation (as defined in the ADA); (ii) as a result of the Premises being a
Commercial Facility (as defined in the ADA); (iii) as a result of any leasehold
improvements made to the Premises by or on behalf of Tenant, or any subtenant,
assignee or concessionaire (whether or not Landlord's consent to such leasehold
improvements was obtained); or (iv) as a result of the employment by Tenant, or
any subtenant, assignee or concessionaire, of any individual with a disability.
B. Ownership and Removal of Alterations. All Alterations, whether made
by Landlord or Tenant, including all counters, screens, grilles, cabinetry work,
partitions, paneling, carpeting, drapes or other window coverings and light
fixtures (but not including Tenant's Property, as defined below), shall be
deemed a part of the real estate and the property of Landlord and shall remain
upon and be surrendered with the Premises without disturbance or injury, at the
end of the Lease Term. All movable partitions, machines, furniture/cabinets/
screens (even if attached to the Premises) and equipment which are installed in
the Premises by or for Tenant, without expense to Landlord, which can be removed
without damage to or defacement of the Building or the Premises, and all
unattached furniture, furnishings and other articles of personal property owned
by Tenant and located in the Premises (all of which are herein called "Tenant's
Property") shall be and remain the property of Tenant and may be removed by it
at any time during the Lease Term, subject to the provisions of this Lease.
However, if any of Tenant's Property is removed, Tenant shall repair or pay the
cost of repairing any damage to the Building Complex or the Premises resulting
from the removal.
C. Landlord's ADA Alterations. Landlord shall, subject to reimbursement
as part of Operating Expenses, be responsible for any alterations, modifications
or improvements to any Common Areas of the Building Complex which are required
by the ADA. Landlord warrants that the design of the Building will comply with
the ADA as currently enacted and interpreted on the date hereof.
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11. ENTRY BY LANDLORD. Landlord, the Building Manager and their employees,
contractors and agents shall have the right to enter the Premises at all
reasonable times after advance notice to Tenant (except in the case of an
emergency or to provide janitorial services, which shall require no notice) for
the purpose of inspecting it, to supply any services to be provided by Landlord,
to show it to prospective purchasers, investors or Mortgagees, to make such
alterations, repairs, maintenance, improvements or additions to the Premises or
to the Building as Landlord may deem necessary or desirable, and during the last
270 days of the Lease Term or after an Event of Default to show it to
prospective tenants. However, exclusive of emergency situations, Landlord shall
not enter the Premises when Tenant or Tenant's representative is not present
without the prior consent of Tenant. Any such entry shall not entitle Tenant to
an abatement of Rent or any other claim against Landlord, except for Landlord's
gross negligence or willful misconduct.
12. MECHANICS LIENS. Tenant has no right or authority to impose or permit
any lien or claim against the Premises, the Building, the Building Complex or
its interest in or under this Lease. Tenant shall pay all costs for work done by
or for Tenant in the Premises (including work performed by Landlord or its
contractor at Tenant's request following the commencement of the Primary Lease
Term) and Tenant will keep the Premises and the Building Complex free and clear
of all mechanics' and other liens on account of work done by or for Tenant or
persons claiming under it, excluding any Tenant Finish Work performed by
Landlord pursuant to the Work Letter. Tenant agrees to indemnify, defend, and
save Landlord harmless of and from all liability, loss, damage, costs, or
expenses, including attorneys' fees, on account of any claims of any nature
whatsoever for work performed or for materials or supplies furnished to Tenant
or persons claiming under Tenant. Should any such claims be made or liens be
recorded against the Premises, the Building or the Building Complex or should
any action affecting the title thereto be commenced as a result of any such
work, Tenant shall cause the claim to be satisfied before being recorded, or if
the claim or lien is recorded to be removed of record within five days after
recording. If Tenant desires to contest any claim or lien, Tenant shall give
notice to Landlord of Tenant's intent to contest it and, within five days after
the recording of any such liens, Tenant shall either furnish to Landlord
adequate security satisfactory to Landlord of at least 150% of the amount of the
claim, plus estimated costs and interest or bond over any lien under CRS
00-00-000 and as soon as possible thereby have the lien against the Premises,
Building and Building Complex discharged and released in full. If a final
judgment establishing the validity or existence of any lien for any amount is
entered, Tenant shall immediately pay and satisfy it. If Tenant fails to pay any
amount in the time periods provided herein, Landlord may (but without being
required to do so) pay such lien or claim and any costs, and the amount so paid,
plus 20% of such amounts as an overhead/administration charge, together with
reasonable attorneys' fees incurred in connection therewith, shall be
immediately due from Tenant to Landlord.
13. SUBLETTING AND ASSIGNMENT.
A. Tenant's Right. Tenant cannot assign this Lease or sublet all or any
part of the Premises without the prior written consent of Landlord, not to be
unreasonably withheld. If Tenant wants to assign this Lease or sublet all or a
portion of the Premises, Tenant shall first notify Landlord in writing of the
name of the proposed assignee or sub-tenant and the proposed use of the
Premises, and provide such financial and other information as Landlord may
reasonably require about the proposed assignee or subtenant. It shall not be
unreasonable for Landlord to withhold its consent to a proposed assignment or
sublease if (i) the reputation, financial responsibility, or business of the
proposed assignee or subtenant is unacceptable to Landlord; (ii) the intended
use of the Premises by the proposed assignee or subtenant either (a) violates
any exclusivity rights granted by Landlord to other tenants in the Building
Complex, or (b) violates any Laws or requires modifications to the Premises or
the Building Complex to comply with Laws; or (iii) if the proposed assignee or
subtenant is a present tenant of the Building currently negotiating with
Landlord for renewal or expansion. Tenant shall have no right to assign this
Lease or sublet any part of the Premises if a notice of default has been
delivered by Landlord to Tenant, which default has not been cured, or if an
Event of Default exists under this Lease, either at the time of Tenant's request
for Landlord's consent to an assignment or sublease or at the time the
assignment or sublease is scheduled to commence.
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B. Other Restrictions; What Constitutes an Assignment. Any assignment or
subletting consented to by Landlord shall be in writing in a form acceptable to
Landlord. This Lease cannot be assigned or sublet by operation of law. Any
transfer of this Lease by a sale of all or substantially all of Tenant's assets,
merger, consolidation, liquidation, or change in ownership of or power to vote
the majority of outstanding stock of Tenant or, if Tenant is a partnership, any
withdrawal, replacement, or substitution of any partner or partners, either
general or limited, whether as the result of a single or series of transactions,
shall constitute an assignment for purposes of this Paragraph. Any assignment or
subletting shall not affect the liability of the Tenant under this Lease or
release Tenant from its obligations. Consent by Landlord to any assignment or
sublease shall not relieve the Tenant from the requirement of obtaining the
prior written consent of Landlord to any subsequent assignment or subletting and
Landlord's consent to one assignment or subletting shall not waive Landlord's
right to refuse to consent to a subsequent request. If Landlord consents to
Tenant's request to assign this Lease or sublet all or a portion of the
Premises, Tenant shall pay Landlord, at the time consent is given, in
consideration for Landlord's written consent to the assignment or sublease, an
amount equal to $500 as a subletting/assignment fee. In addition, Tenant or
Tenant's assignee or sublessee shall be solely responsible for all costs
incurred in altering the Premises to conform to Laws due to any change in the
intended use of the Premises.
C. Certain Subleases. Notwithstanding the above, if Tenant requests
Landlord's consent to sublet 25% or more of the Premises, Landlord may refuse to
grant consent in its sole discretion and may terminate this Lease as to that
portion of the Premises; provided, however, if Landlord does not consent and
elects to terminate the Lease as to that portion, Tenant may within 15 days
after notice from Landlord to this effect withdraw Tenant's request for consent.
If Landlord elects to terminate under this Paragraph, it shall be effective on
the date designated in a notice from Landlord.
D. Related Corporation Assignment. Notwithstanding anything to the
contrary set forth in this Section, and subject to all of the provisions of this
Lease, Tenant may assign this Lease to or permit any corporation or other
business entities which control, are controlled by, or are under common control
with Tenant (each, a "Related Corporation") to sublet the Premises for any of
the purposes permitted to Tenant under this Lease (subject, however, to
compliance with Tenant's obligations under this Lease) provided that (a) Tenant
shall not then be in default (after any applicable grace and/or cure periods in
the performance of any of its obligations under this Lease), (b) prior to such
assignment or subletting, Tenant furnishes Landlord with the name of any such
Related Corporation, together with the written certification of Tenant that such
entity is a Related Corporation of Tenant, and (c) in the reasonable judgment of
Landlord, the proposed assignee or subtenant is in keeping with the reasonable
standards of Landlord for the Building. Any such subletting shall not be deemed
to vest in any such Related Corporation any right or interest in this Lease or
the Premises nor shall any such subletting or assignment relieve, release,
impair or discharge any of Tenant's obligations hereunder. For the purposes
hereof, "control" shall be deemed to mean ownership of not less than 51% of all
of the legal and equitable interest in any other business entities. Further,
notwithstanding anything contained herein to the contrary, the provisions of
this Paragraph 13 shall not apply to transactions with a corporation into or
with which Tenant is merged or consolidated or to which substantially all of
Tenant's assets are transferred, provided that in any of such events the
successor to Tenant has a net worth computed in accordance with generally
accepted accounting principles at least equal to the Tenant's net worth on the
date hereof, and proof satisfactory to Landlord of such net worth shall have
been delivered to Landlord at least ten (10) days prior to the effective date of
any such transaction. Further, notwithstanding anything contained herein to the
contrary, the provisions of Paragraph 13.A. shall not apply to transactions with
a corporation into or with which Tenant is merged or consolidated or to which
substantially all of Tenant's assets are transferred, provided that in any of
such events, the successor to Tenant has a net worth computed in accordance with
generally accepted accounting principles at least equal to the greater of (i)
Tenant's net worth on the date hereof or (ii) Tenant's net worth on the date of
such merger or consolidation, and proof satisfactory to Landlord shall have been
delivered to Landlord at least ten (10) days prior to the effective date of any
such transaction.
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E. Excess Rent. If the Rent and other sums payable to Tenant by an
assignee or sublessee for or in connection with an assignment of this Lease or
the sublease of all or any part of the Premises shall be in excess (the
"Excess") of the Base Rent and Tenant's Pro Rata Share payments provided for -
in this Lease (allocated on a per square foot basis in the event of a
sublease of less than all of the Premises), Tenant shall so notify Landlord and,
after deducting its reasonable leasing costs, shall pay Landlord 50% of the
Excess as and when received by Tenant. After a default by Tenant under this
Lease, Landlord shall have the right to collect any Base Rent directly from any
subtenant (or from any assignee from which is it not already collecting
directly).
14. DAMAGE TO PROPERTY; CLAIMS.
A. Landlord Not Liable. Neither Landlord nor the Building Manager or
their employees or agents shall have any liability for, and Tenant shall neither
hold nor attempt to hold Landlord the Building Manager and their employees and
agents liable for any injury or damage, either proximate or remote, occurring
through or caused by fire, water, steam, or any repairs, alterations, injury,
accident, or any other cause to or within the Premises, to Tenant's Property or
other personal property of Tenant or others kept in the Premises or stored in
other parts of the Building and/or Common Areas, or for property of Tenant or
others entrusted to employees of the Building, or for loss of property by theft
or otherwise (including loss or damage in the parking areas) whether by reason
of the negligence or default of Landlord, other occupants or any other person or
otherwise, and the keeping or storing of all property of Tenant in the Building,
Common Areas and/or Premises shall be at the sole risk of Tenant, unless caused
by the gross negligence or willful misconduct of Landlord.
B. Tenant's Indemnity. Subject to provisions of Paragraph 15C, Tenant
hereby agrees to indemnify, defend, and save Landlord and Building Manager
harmless of and from all actions, suits, fines, penalties, liability, loss,
damages, costs, or expenses, including reasonable attorneys' fees, resulting
from Tenant's use or occupancy of the Premises, or on account of injuries to the
person or property of Tenant or any third party, including any other tenant in
the Building Complex or to any other person rightfully in the Building Complex
for any purpose whatsoever, where the injuries are caused by the negligence or
willful misconduct of the Tenant, Tenant's agents, subcontractors or employees
(excluding business invitees), or resulting from any breach of this Lease by
Tenant.
15. INSURANCE.
A. Landlord's Insurance. Landlord agrees to carry and maintain
commercial general liability insurance against personal injury, including death
and property damage, in or about the Building Complex (excluding Tenant's
Property), in such amounts as Landlord deems appropriate. Landlord shall
maintain casualty insurance for the Building Complex, the shell and core of the
Building and the Premises (other than the insurance Tenant is required to carry
on the Premises) in such amounts, from such companies, and on such terms and
conditions, including insurance for loss of Rent, as Landlord deems appropriate
from time to time.
B. Tenant's Insurance. Tenant shall, at its own cost, at all times
during the Lease Term, procure and maintain workmen's compensation insurance in
the maximum statutory amount covering all persons employed by Tenant, insurance
coverage at least as broad as ISO Special Form Coverage against risks of direct
physical loss or damage (commonly known as "all risk") for the full replacement
cost of Tenant's Property and the contents of the Premises including damage due
to water leakage, in an amount equal to their full replacement cost, and
commercial general liability insurance, including coverage for bodily injury,
property damage, personal injury (employee and contractual liability exclusions
deleted), products and completed operations, contractual liability, owner's
protective liability, and broad form property damage with the following limits
of liability: $2,000,000.00 each occurrence combined single limit for bodily
injury, property damage and personal injury; $2,000,000.00 aggregate for bodily
injury and property damage for products and completed operations. All such
insurance shall be procured from a responsible insurance company or companies
authorized to do business in the State where the Premises are located, with
general policyholder's ratings of not less than AA+ and a financial rating of
not less than "XI' in the most current available Best's Insurance Reports, and
shall
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be otherwise satisfactory to Landlord. All such policies (except workmen's
compensation) shall name Landlord and Building Manager as additional insureds,
and shall provide they cannot be canceled or altered except upon 30 days prior
written notice to Landlord. All insurance maintained by Tenant shall be primary
to any insurance carried by Landlord. If Tenant obtains any general liability
insurance policy on a claims-made basis, Tenant shall provide continuous
liability coverage for claims arising during the entire Lease Term, regardless
of when the claims are made, either by obtaining an endorsement providing for an
unlimited extended reporting period in the event any such policy is canceled or
not renewed for any reason whatsoever or by obtaining new coverage with a
retroactive date the same as or earlier than the expiration date of the canceled
or expired policy. Tenant shall provide certificate(s), and if requested copies
of the policies, of such insurance to Landlord upon commencement of the Lease
Term and at least 30 days prior to their renewal date and such certificate(s)
and policies shall name Landlord and Building Manager as additional insureds, in
addition to the other requirements herein. The limits of Tenant's insurance
shall not, under any circumstances, limit the liability of Tenant under this
Lease.
C. Waiver of Claims and Subrogation. Each party hereby waives and
releases the other party and its respective officers, directors, partners,
members, agents, representatives and employees, from any claim (including a
claim for negligence) which it might otherwise have against the other party for
loss, damage or destruction to its real and personal property (including the
Building, Building Complex, Premises and Tenant's Property) or for loss of
business arising out of or related to the use and occupancy of the Premises
occurring during the Lease Term which is insured or capable of being insured
against under insurance required under this Paragraph. Tenant also waives all
such rights of recovery against the Building Manager. Each party shall notify
its insurance carrier of this waiver provision and obtain an appropriate waiver
of subrogation provision in its policies.
16. DAMAGE OR DESTRUCTION TO BUILDING.
A. Repair of Damage. In the event that the Premises or the Building is
damaged by fire or other insured casualty, the damage shall be repaired by and
at the expense of Landlord, provided that the Premises can be made fit for
occupancy, within 180 days after the occurrence of the damage without the
payment of overtime or other premiums. Until the repairs and restoration are
completed, Rent shall be abated in proportion to the part of the Premises which
is unusable by Tenant in the conduct of its business as the result of the
casualty (but there shall be no abatement of Rent by reason of any portion of
the Premises being unusable for a period of five days or less or as set forth
below). Landlord agrees to notify ("Landlord's Notice") Tenant within 60 days
after the casualty of the approximate length of time Landlord estimates will be
required to complete the repairs and restoration, and if Landlord therein
estimates that it will be unable to repair and restore the Premises within 180
days, Landlord, in its Landlord's Notice or Tenant in a notice given to Landlord
within 15 days thereafter (or within 75 days after the casualty if Landlord
fails to provide Landlord's Notice, unless the repairs are in fact complete
within said 75-day period), may terminate this Lease effective 30 days from the
date of such notice (the "Termination Date"). However, Tenant may not terminate
this Lease or receive an abatement of Rent, as above stated, if the damage to
the Premises or the Building is in whole or in part the result of the act,
omission, fault or negligence of Tenant, its agents, contractors or employees.
In the event this Lease is terminated, Tenant shall pay Rent until the
Termination Date and shall forthwith surrender the Premises in accordance with
Paragraph 21A. If Tenant fails so to surrender the Premises, Landlord may
reenter and take possession of the Premises and remove Tenant and the property
and Alterations Tenant is required to remove under Paragraph 10, at Tenant's
expense. Except as provided in this Paragraph, there shall be no abatement of
rent and no liability of Landlord by reason of any damage to or interference
with Tenant's business or property arising from the casualty or the making of
any such repairs, alterations or improvements in or to the Building Complex or
Premises. Tenant understands that Landlord will not carry insurance of any kind
on Tenant's Property, or any Alterations installed in the Premises by or on
behalf of Tenant, and that Landlord shall not be obligated to repair any damage
or replace any of Tenant's Property or any such Alterations, which shall be
Tenant's responsibility.
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17. CONDEMNATION. If the entire Premises or substantially all of the
Premises or any portion of the Building Complex which shall render the Premises
untenantable shall be taken by eminent domain or by condemnation or shall be
conveyed in lieu of any such taking, then this Lease, at the option of either
Landlord or Tenant exercised by either party giving notice to the other of such
termination within 30 days after such taking or conveyance, shall as of the date
Tenant is dispossessed of the Premises terminate and the Rent shall be
apportioned as of that date; and Tenant shall surrender the Premises as required
in this Lease to Landlord and Landlord may reenter and take possession of the
Premises on that date. In the event less than all of the Premises shall be taken
by that proceeding, Landlord shall promptly repair the Premises as nearly as
possible to its condition immediately prior to the taking. In the event of any
such taking or conveyance, Landlord shall receive the entire award or
consideration for the portion of the Building or Building Complex so taken, and
Tenant may claim separately for loss of personal property and moving expenses.
18. ESTOPPEL CERTIFICATE.
A. Duty to Provide. Tenant agrees at any time and from time to time on
or before five days after written request by Landlord, to execute, acknowledge
and deliver to Landlord an estoppel certificate certifying (i) that this Lease
is unmodified and in full force and effect (or if there have been modifications,
that it is in full force and effect as modified, and stating the modifications),
(ii) that there have been no defaults by Landlord (to the best of Tenant's
knowledge) or by Tenant (or, if there have been defaults, describing the
default), (iii) the date to which Rent and other charges have been paid in
advance, if any, (iv) that Tenant claims no present charge, lien, claim or
offset against Rent, (v) that Rent is not prepaid for more than one month in
advance, and (vi) such other matters as may be reasonably required by Landlord,
any Mortgagee or prospective Mortgagee, or any potential purchaser of the
Building. It is intended that any such statement delivered pursuant to this
Paragraph may be relied upon by any prospective purchaser of all or any portion
of Landlord's interest, or by any Mortgagee or prospective Mortgagee.
B. Tenant's Failure to Deliver. Tenant acknowledges that it may be
difficult, if not impossible, for Landlord to sell or finance the Building
without such an estoppel certificate from Tenant, and that Landlord would not
enter into this Lease without Tenant's agreement to provide such an estoppel
certificate. If Tenant shall fail to execute, acknowledge and deliver to
Landlord any estoppel on or before the expiration of the 5-day period provided
under Paragraph 18A above, Landlord shall again provide written request to
Tenant delivered in accordance with the provisions of Paragraph 23 below and if
Tenant fails to execute, acknowledge and deliver to Landlord such estoppel on or
before 5 days after said second request therefor, it shall be deemed both (1) as
Tenant's affirmation of the provisions of the estoppel, including that (a) this
Lease is in full force and effect, (b) there are no breaches or defaults on the
part of Landlord, and (c) no more than one month's rent has been paid in
advance; and (2) that Tenant has appointed Landlord as Tenant's attorney-in-fact
to execute said estoppel certificate in Tenant's stead and place.
19. DEFAULT BY TENANT.
A. Event of Default. Each one of the following events is referred to as
an "Event of Default":
(1) Any failure by Tenant to pay Rent on the due date unless the
failure is cured within 5 business days after notice by Landlord; however,
Tenant is not entitled to more than three notices of delinquent payments of Rent
during any calendar year and, if thereafter during that calendar year any Rent
is not paid when due, an Event of Default shall automatically occur;
(2) If Tenant's interest in this Lease or in the Premises, or if all
or a substantial part of Tenant's Property, is seized or taken by process of law
or otherwise and is not released within 15 days;
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(3) Commencement by or against Tenant of a proceeding under any
provision of federal or state law relating to insolvency, bankruptcy, or
reorganization ("Bankruptcy Proceeding"), unless dismissed within 60 days after
commencement; the insolvency of Tenant or execution by Tenant of an assignment
for the general benefit of creditors; the convening by Tenant of a meeting of
its creditors or any significant class thereof for purposes of effecting a
moratorium upon or extension or composition of its debts; or the failure of
Tenant generally to pay its debts as they mature;
(4) [Intentionally omitted];
(5) [Intentionally omitted];
(6) If Tenant fails to take possession of the Premises within 30
days after it is Ready for Tenant;
(7) [Intentionally omitted];
(8) If Tenant fails to perform or breaches any of the other
agreements, terms, covenants or conditions hereof on Tenant's part to be
performed (other than the obligation to pay Rent or any other charges payable
hereunder), and that default continues for a period of 30 days after notice by
Landlord to Tenant; provided, however, that if Tenant cannot reasonably cure the
default within 30 days, Tenant shall not be in default if it commences to cure
the default within that 30 days and diligently pursues it to completion within a
reasonable period of time, not to exceed 60 days.
B. Remedies of Landlord. If any one or more Event of Default occurs,
Landlord shall have the right at Landlord's election, then or at any time
thereafter, in addition to its other rights and remedies under this Lease or any
Laws, to do any one or more of the following:
(1) (a) Without demand or notice except as required by Laws, to
enter and retake possession of the Premises or any part of it and expel Tenant
and those claiming through or under Tenant and remove the effects of both or
either, without being guilty of trespass and without prejudice to any remedies
for unpaid of Rent or other breach of this Lease. If Landlord elects to enter
and retake possession pursuant to legal proceedings or pursuant to any notice
provided for by Laws, Landlord may, from time to time, without terminating this
Lease, relet the Premises or any part of it, in Landlord's or Tenant's name but
for the account of Tenant, for such periods (which may be greater or less than
the period which would otherwise have constituted the balance of the Lease Term)
and on such conditions and upon such other terms (which may include, among other
terms, leasing and brokerage fees, concessions of free rent and alteration and
repair of the Premises) as Landlord, in its sole discretion, may determine, and
Landlord shall be entitled to collect all the rents from the reletting. Landlord
shall in no way be responsible or liable for any failure to relet the Premises
or any part of it, or for any failure to collect any rent due upon reletting. No
such entry or repossession or notice by Landlord shall be construed as an
election on Landlord's part to terminate this Lease, unless written notice of
termination is given to Tenant. Landlord reserves the right following any such
entry and/or reletting to exercise its right to terminate this Lease by giving
Tenant notice, in which event the Lease will terminate as specified in that
notice.
(b) If Landlord takes possession of the Premises without
terminating this Lease, Tenant shall pay to Landlord (i) the Rent and other sums
payable under this Lease, less (ii) the net proceeds, if any, of any reletting
of the Premises after deducting all of Landlord's expenses incurred in
connection with the reletting, including all repossession costs, leasing and
brokerage fees, concessions, attorneys' fees, expenses of employees, alteration
and repair costs ("Reletting Expenses"). If, in connection with any reletting,
the new lease term extends beyond the Lease Term or the premises covered thereby
include other premises not part of the Premises, a fair apportionment of the
Rent received from the reletting and the Reletting Expenses will be made in
determining the net proceeds received from the reletting. In determining the net
proceeds, any rent concessions will be apportioned
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over the term of the new lease. Tenant shall pay the amount due under this
Paragraph to Landlord monthly on the days on which Rent is due under this Lease.
(2) To give Tenant notice of termination of this Lease on the date
specified in that notice, and on that date Tenant's right to possession of the
Premises shall cease and this Lease shall terminate except as to Tenant's
liability as provided below. In the event this Lease is terminated pursuant to
the provisions of this subparagraph), Tenant shall remain liable to Landlord for
damages in an amount equal to the Rent and other amounts which would have been
owing by Tenant for the balance of the Lease Term had this Lease not terminated,
less the net proceeds, if any, from reletting of the Premises by Landlord
subsequent to termination, after deducting the Reletting Expenses. Landlord
shall be entitled to collect such damages from Tenant monthly on the days on
which Rent would have been payable if this Lease had not been terminated.
Alternatively, if this Lease is terminated, Landlord at its option may recover
immediately from Tenant as damages for loss of the bargain and not as a penalty
an amount equal to the worth at the time of termination of the excess, if any,
of the Rent payable under this Lease for the balance of the Lease Term over the
then Reasonable Rental Value of the Premises for the same period reduced to
present value at a discount rate of 5%. "Reasonable Rental Value" shall be the
amount of rent Landlord can obtain for the remaining balance of the Lease Term,
taking into account a reasonable period for reletting, after deducting all
estimated Reletting Expenses.
(3) Advance such monies, and take such other action, for Tenant's
account as reasonably may be required to perform Tenant's obligation or to
mitigate any default or Event of Default, but no such advance or action shall
cure the default or Event of Default. Tenant agrees to reimburse Landlord for
any such advances, as Additional Rent, upon demand from Landlord. Any such
advance, and any cost or expense so incurred, shall bear interest at the rate of
1-1/2% per month, compounded monthly, until paid by Tenant.
(4) Suits for the recovery of Rent and damages may be brought by
Landlord, from time to time, at Landlord's election, and nothing herein shall be
deemed to require Landlord to wait until each installment is due or until the
expiration of the Lease Term. Each right and remedy provided for in this Lease
shall be cumulative and in addition to every other right or remedy provided for
in this Lease or now or hereafter existing at law or equity or otherwise,
including, but not limited to, suits for injunctive relief and specific
performance. The exercise or beginning of the exercise by Landlord of any one or
more rights or remedies shall not preclude the simultaneous or later exercise by
Landlord of other rights or remedies. All costs incurred by Landlord in
connection with collecting Rent or other amounts and damages owing by Tenant or
to enforce any provision of this Lease, shall also be recoverable by Landlord
from Tenant.
(5) No failure by Landlord to insist upon the strict performance of
any agreement, term, covenant or condition hereof or to exercise any right or
remedy, and no acceptance of full or partial Rent during the continuance of any
such breach shall constitute a waiver of any such breach or agreement, term,
covenant, or condition, except by written instrument executed by Landlord or
relieve Tenant from the obligation to make the full payment as and when due. No
waiver shall affect or alter this Lease, and each and every agreement, term,
covenant, and condition hereof shall continue in full force and effect with
respect to any other then existing or subsequent breach.
(6) Nothing contained in this Lease shall limit or prejudice the
right of Landlord to obtain as liquidated damages in any bankruptcy or similar
proceeding the maximum amount allowed by Law at the time such damages are
proven, whether or not the amount is greater, equal to, or less than the amounts
recoverable, either as damages or Rent, referred to in any of the preceding
provisions of this Paragraph.
C. Late Charges and Interest. Rent or other amounts owed by Tenant
which are not received by Landlord by the 5th business day after the date they
are due shall be subject to a late charge of 3% of the amount due. Additionally,
if Rent is not received by Landlord within 15 days after it is due (or after
notice of default, if notice is required), the amount due shall be subject to an
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additional 5% late charge. Rent and all other monetary obligations under this
Lease not received by Landlord when due shall also bear interest at the rate of
1 1/2% per month, compounded monthly, from the date due until fully received by
Landlord. Tenant acknowledges that late payments will cause Landlord to incur
costs not contemplated by this Lease, the exact amount of which would be
impossible or extremely difficult to ascertain. Those costs include processing
and accounting charges, interest and late charges imposed by Mortgagees, and
other general and administrative expenses. Tenant agrees that the late charges
and interest contemplated by this Paragraph represent a fair and reasonable
estimate of the costs which Landlord will incur as a result of any such late
payments by Tenant. Acceptance of late charges and interest by Landlord shall
not constitute a waiver of Tenant's default with respect to any overdue amount,
or prevent Landlord from exercising any other rights or remedies under this
Lease.
D. No Waiver. No payments of Rent or money by Tenant to Landlord after
notice of termination or after termination of this Lease, in any manner, shall
reinstate, continue, or extend the term of this Lease or affect any notice given
to Tenant prior to the payment, it being agreed that after the service of notice
of termination or the commencement of a suit or other final judgment granting
Landlord possession of the Premises, Landlord may receive and collect any sums
of Rent due or any other sums of money, whether as Rent or otherwise, and
exercise Landlord's rights and remedies hereunder, and shall not waive any
default or notice or in any manner affect any pending suit or judgment.
E. Landlord's Lien. [Intentionally omitted.]
20. SUBORDINATION AND ATTORNMENT.
A. General. This Lease, and all rights of Tenant under it, at
Landlord's option shall be subordinate to any ground leases, deeds of trust,
mortgages and security agreements, including leasehold mortgages and building
loan agreements, now or hereafter placed upon the Building or the Building
Complex (including all advances made thereunder), and to all amendments,
renewals, replacements and extensions thereof (collectively, "Mortgage"), but
only if and when any Lessor or Mortgagee (as defined below) executes and
delivers to Tenant a non-disturbance and attornment agreement in the standard
form of such Lessor or Mortgagee or the form attached hereto as Exhibit D, under
which, among other provisions which may be included (1) Tenant agrees to
recognize and attorn to the Lessor or Mortgagee if it becomes the Landlord under
this Lease, and (2) the Lessor or Mortgagee (on behalf of itself and its
successors and assigns in interest) agrees to recognize Tenant's rights under
this Lease as long as Tenant is not in default under this Lease, notwithstanding
defaults under any such ground lease or Mortgage or foreclosure, receivership or
sale thereunder ("Nondisturbance Agreement"). If any holder of a Mortgage
("Mortgagee") or the lessor of any ground lease ("Lessor") elects to have this
Lease made superior to the lien of its Mortgage and gives notice to Tenant, this
Lease will be deemed prior to that Mortgage, whether this Lease is dated prior
or subsequent to the date of that Mortgage. In confirmation of this
non-disturbance and attornment, subordination or superior position, as the case
may be, Tenant shall promptly execute and deliver to Landlord (or such other
party so designated by Landlord) at Tenant's own cost and expense, within 10
days after request from Landlord any instruments as may be reasonably required
for this purpose by Mortgagee or Lessor, in recordable form if requested. If
Tenant fails to do so within that 10-day period, Tenant shall be in default
under this Lease, and Tenant hereby irrevocably grants to Landlord a power of
attorney coupled with an interest to act as Tenant's attorney-in-fact for the
purposes of executing whatever documents are necessary to evidence such
subordination or superior position. Tenant agrees to attorn to all successor
owners of the Building, whether such ownership is acquired by sale, foreclosure
of a Mortgage, or otherwise. Landlord covenants and agrees that concurrently
with the full execution of this Lease by Landlord and Tenant that Landlord shall
cause to be delivered to Tenant a Nondisturbance Agreement and signed by all of
Lessor's current Mortgagees or Lessors, if either, as the case may be.
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21. SURRENDER AND HOLDING OVER.
A. Surrender. Upon the expiration or termination of this Lease or
termination of Tenant's right of possession, Tenant shall promptly surrender the
Premises to Landlord broom clean, in good order and condition, ordinary wear and
tear and loss by fire or other insured casualty excepted (except as otherwise
provided in Paragraphs 15 and 16), and Tenant shall remove Tenant's Property and
the Alterations and other property as required under Paragraph 10. If Tenant
fails to vacate the Premises on a timely basis as required, Tenant shall be
liable to Landlord for all costs incurred by Landlord as a result of that
failure, including, but not limited to, any amounts required to be paid to third
parties who were to have occupied the Premises.
B. Property Not Removed. All Tenant's Property not removed from the
Premises upon the termination of this Lease or of Tenant's right of possession
for any cause whatsoever shall conclusively be deemed to have been abandoned and
may be appropriated, sold, stored, destroyed, or otherwise disposed of by
Landlord without notice to Tenant or any other person and without obligation to
account therefor, Tenant shall pay Landlord all expenses incurred in so doing.
C. Holding Over. If, after the termination of this Lease or of Tenant's
right of possession, Tenant remains in possession of the Premises and continues
to pay Rent, and Landlord consents to the possession and accepts the Rent,
without any written agreement, the holding over shall be deemed a tenancy from
month-to-month, under all the provisions of this Lease, but at a monthly Rent
equivalent to 150% of the monthly installments of Rent paid by Tenant
immediately prior to the termination or the current market rental rate for the
Premises, whichever is greater. If, after the termination of this Lease or of
Tenant's right of possession, Tenant remains in possession without Landlord's
consent, Landlord will suffer damages, the amount of which will be difficult to
determine; therefore, Tenant shall pay to Landlord as liquidated damages an
amount equal to 200% of the Rent calculated on a per diem basis, applicable
under the Lease in the month immediately prior to the termination. All such Rent
shall be payable in advance on the same day of each month. The month-to-month
tenancy may be terminated by either party upon 10 days' notice prior to the end
of any such monthly period. Nothing contained herein shall be construed as
obligating Landlord to accept any Rent tendered by Tenant after any such
termination or as obligating Landlord to consent to any holding over, or as
relieving Tenant of its liability under this Lease.
22. LANDLORD DEFAULT. In the event of any noncompliance with the terms and
conditions of this Lease by Landlord, Tenant shall, before exercising any right
or remedy available to it at law, in equity or hereunder, give Landlord written
notice of such noncompliance. If prior to its giving such notice, Tenant has
been notified in writing (by way of Notice of Assignment of Rents and Leases by
execution of a subordination agreement, or by notice delivered in accordance
with the provisions of Section 22 hereof) of the address of a Mortgagee which
has furnished any of the financing referred to in Section 20 hereof,
concurrently with giving the aforesaid notice to Landlord, Tenant shall, by
registered mail, transmit a copy thereof to such Mortgagee. For the 30 days
following the giving of the notice(s) required by the foregoing portion of this
Section 22 (or such longer period of time as may be reasonably required to cure
a matter which, due to its nature, cannot be reasonably rectified within 30
days), Landlord shall have the right to cure the noncompliance involved. If
Landlord has failed to effect such cure within such 30 day period, any such
Mortgagee shall have 30 days within which to cure the same, or, if such default
cannot be cured within that period, such additional time as may be reasonably
necessary to cure such default, if within such 30-day period, said Mortgagee has
commenced and diligently pursues the actions or remedies to completion;
provided, however, that any such cure must be completed within 90 days following
Landlord's cure period. Notwithstanding the foregoing, in case of a bona fide
emergency not arising as a result of force majeure and which results in a
substantial portion of the Premises being untenantable and as a result, Tenant
has not occupied such portion of the Premises for at least 2 consecutive
business days, (i) Tenant shall not be required to give written notice, but may,
instead, give oral telephone notice to Landlord (so long as such oral notice is
promptly followed by written notice, which may be by means of facsimile
transmission), and (ii) neither Landlord nor such Mortgagee shall be entitled to
such 30-day period to cure any such noncompliance and, instead, Landlord and
such Mortgagee shall have such shorter time as is reasonably
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necessary to cure such noncompliance in light of the nature of the emergency and
all surrounding circumstances. Upon Landlord's (and Mortgagee's, if applicable)
failure to cure any failure of its performance of any of its covenants or
obligations as set forth in this Lease beyond the cure period set forth herein,
Tenant, at its option, but without obligation, may perform such acts and pay
such amounts as are reasonably necessary to cure such default by Landlord, and
Landlord shall reimburse Tenant for the out-of-pocket costs reasonably incurred
in connection therewith within 30 days following receipt of Tenant's written
request with accompanying paid invoices evidencing such costs. If such amounts
are not paid by Landlord within said 30 days, Tenant shall have the right to
offset such sums against Base Rent due under this Lease. Further, provided the
Tenant has complied with the notice to Landlord and Mortgagee (and afforded the
cure opportunities) pursuant to the terms of the first four sentences of this
Paragraph, and has not elected to avail itself of the offset provisions of this
Section as Tenant's remedy, the Tenant shall have any other rights against
Landlord that are available at law or in equity for Landlord's breach of
Landlord's obligations hereunder. If Tenant prevails in any such proceedings and
obtains a monetary judgment against Landlord, Tenant may, subject to Section 27A
below, execute and collect on such judgement.
23. NOTICE. All notices, demands or statements required or permitted to be
given to Landlord shall be in writing and shall be deemed duly served when
deposited in the United States mail, postage prepaid, certified or registered,
return receipt requested, addressed to Landlord at Landlord's address shown on
the Basic Lease Term Sheet or at the most recent address of which Landlord has
notified Tenant in writing. All notices, demands or statements required or
permitted to be given to Tenant shall be in writing and shall be deemed duly
served when delivered to any officer or agent of Tenant (or a partner or member
of Tenant if Tenant is a partnership or other entity or to Tenant individually
if Tenant is a sole proprietor) or manager of Tenant whose office is in the
Building, or when deposited in the United States mail, postage prepaid,
certified or registered, return receipt requested, addressed to Tenant at the
Premises, or, prior to Tenant's taking possession of the Premises, to the
address known to Landlord as Tenant's principal office address. Either party
shall have the right to designate in writing, served as above provided, a
different address to which notice is to be delivered. This Section shall not
prohibit notice from being given as provided in Rule 4 of Colorado Rules of
Civil Procedure, as amended from time to time.
24. RULES AND REGULATIONS. The rules and regulations attached as Exhibit E
are deemed a part of this Lease, and Tenant agrees that Tenant and its
employees, agents or any others permitted by Tenant to occupy or enter the
Premises shall at all times abide by those rules and regulations. Tenant agrees
that Landlord may change the rules and regulations for the Premises and the
Building Complex from time to time (including the addition of rules and
regulations regarding parking), and Tenant agrees to abide by them upon receipt
of notice of the change.
25. PARKING. Tenant shall have the right to use the number of uncovered and
covered (if applicable) parking spaces indicated on the Basic Lease Term Sheet
at no charge. All vehicles parked in the parking spaces are at the sole risk of
Tenant, Tenant's agents and invitees and Landlord shall have no liability for
loss or damage. The parking garage servicing the Building shall be a controlled
access garage and will have an on-site attendant during Ordinary Building Hours
and during concerts held at the Fiddler's Green Amphitheater, if the parking
garage is utilized for concert parking.
26. RIGHT TO RELOCATE TENANT. [Intentionally omitted.]
27. MISCELLANEOUS.
A. Limitation of Landlord's Liability. The term "Landlord" as used in
this Lease, so far as covenants or obligations on the part of Landlord are
concerned, shall mean and include only the owner or owners of the Building at
the time in question and, in the event of any transfer or transfers of the title
thereto, Landlord herein named (and in the case of any subsequent transfers or
conveyances, the then grantor) shall be automatically released, from and after
the date of the transfer or conveyance, of all liability as respects the
performance of any covenants or obligations on the part of Landlord thereafter
to be performed, provided that the Security Deposit then held by Landlord or the
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then grantor at the time of the transfer shall be delivered to or credited to
the purchase price paid by the grantee. Notwithstanding anything to the contrary
contained herein, Landlord's liability under this Lease shall be limited to
Landlord's interest in the Building Complex, and Tenant shall not and cannot
seek any recovery or deficiency against any other assets or against any
partners, lenders, officers, directors, or employees of Landlord or against the
Building Manager.
B. No Merger. The termination of this Lease shall not be a merger, and
such termination shall, at the option of Landlord, either terminate all
subleases and subtenancies or operate as an assignment to Landlord of any or all
such subleases or subtenancies.
C. Landlord's Use of Common Areas. Tenant agrees that Landlord has the
right to use the Common Areas for the general benefit of the Building Complex,
including for the purposes of completing or making repairs or alterations in any
portion of the Building. Landlord may use the Building Complex, the Common Areas
and one or more of the street entrances to the Building Complex as may be
necessary in Landlord's judgment to complete any such work or for other purposes
in connection with Landlord's management or operation of the Building Complex.
D. Covenants are Independent. This Lease shall be construed as though
the covenants between Landlord and Tenant are independent and not dependent, and
subject to the provisions of the Parking Spaces paragraph of the Basic Term
Sheet, Section 6A(2), Section 16 and Section 22, Tenant shall not be entitled to
any set off of the Rent or other amounts owing hereunder against Landlord if
Landlord fails to perform its obligations.
E. Severability. If any provision of this Lease is held by a court of
competent jurisdiction to be illegal, invalid, or unenforceable under any Laws,
it is the intention of the parties that the remainder of this Lease shall not be
affected and that the illegal, invalid, or unenforceable provision be replaced
by a provision (or construed to be) as similar in terms as possible and be
legal, valid, and enforceable.
F. Captions and Terms. The caption of each Paragraph is added as a
matter of convenience only and shall have no effect on the construction of any
provision or provisions of this Lease. The words "include" and "including" when
used in this Lease are intended in their illustrative sense, not as a
limitation, and the terms that follow such words are illustrative and not
exclusive. References to "provisions" of this Lease refers to all of the
provisions, terms, conditions, covenants and agreements in this Lease. The
words "shall" and "will" have the same meaning.
G. Binding Effect; Governing Law. Subject to Paragraphs 13 and 28A,
this Lease shall inure to the benefit of, and be binding upon, Landlord and
Tenant and their respective heirs, administrators, successors and assigns. This
Lease is subject to and shall be construed in accordance with Colorado law.
H. Tenant's Authority. Tenant and the party executing this Lease on
behalf of Tenant represent to Landlord that they are authorized to do so by
requisite action of Tenant and that this Lease is binding on Tenant, and agree,
upon request, to deliver to Landlord a resolution or similar document or opinion
of counsel to that effect.
I. Joint and Several. If there are more than one entity or person which
are the Tenant under this Lease, the obligations imposed upon Tenant under this
Lease shall be joint and several.
J. Acts Binding Landlord. No act or thing done by Landlord or
Landlord's agents during the term, including any agreement to accept the
surrender of the Premises or to amend or modify this Lease, shall be binding on
Landlord, unless in writing and signed by a person authorized to bind Landlord.
The delivery of keys to Landlord, or Landlord's agents, employees, or officers
shall not operate as a termination of this Lease or a surrender of the Premises.
No payment by Tenant or receipt by Landlord of a lesser amount than the full
monthly Rent and all other amounts owing, as herein
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stipulated, shall be deemed to be other than on account of the earliest due Rent
or other amounts, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as Rent be deemed an accord and
satisfaction. Landlord may accept any such check or payment without prejudice to
Landlord's right to recover the balance owed or to pursue any other remedy
available to Landlord.
K. Changes in the Building; Use of Names. Landlord shall have the right
at any time to increase the size of the Building Complex by adding additional
land, to construct other buildings or improvements on any portion of the
Building Complex or to change the location and/or character of or to make
alterations of or additions to the Building Complex so long as the alterations
and changes do not unreasonably interfere with Tenant's occupancy of the
Premises. Tenant shall not use the Building's name for any purpose other than as
a part of its business address, and Tenant shall not use the name "Fiddler's
Green", or any variation, without Landlord's prior written approval. Any use of
any of those names by Tenant shall constitute a default under this Lease.
L. Change in Light or View. Tenant agrees that no diminution of light,
air, or view by any structure that may hereafter be erected (whether or not by
Landlord) shall entitle Tenant to any reduction of Rent or other charges under
this Lease, result in any liability of Landlord to Tenant, or in any way affect
this Lease or Tenant's obligations under it; provided, however, that Landlord
agrees that no other structure shall be erected within the footprint of the
Building, as depicted on the attached Exhibit H.
M. No Other Agreements; Amendments. Tenant acknowledges and agrees that
it has not relied upon any statements, representations, agreements, or
warranties by Landlord, its agents or employees, except those expressed in this
Lease and that no amendment or modification of this Lease shall be valid or
binding unless in writing and executed by the parties hereto in the same manner
as the execution of this Lease, and that this Lease incorporates all prior
discussions and agreements.
N. Brokers. Landlord and Tenant represent and warrant to each other
that no broker or agent negotiated or was instrumental in the negotiation or
consummation of this Lease, except Landlord's Broker and any Tenant's Broker
specified in the Basic Lease Term Sheet. Landlord shall, at its sole cost and
expense, pay to Landlord's Broker and Tenant's Broker a commission pursuant to a
separate written agreements between Landlord and Landlord's Broker and Landlord
and Tenant's Broker, copy(ies) of which are attached hereto as Exhibit I.
Landlord and Tenant agree to indemnify and hold each other harmless from and
against any and all commissions, fees and expenses and all claims therefore, by
any broker, salesman or other party in connection with or arising out of the
parties' entering into this Lease, claiming by, through or under the
indemnifying party, except for the commissions of Landlord's Broker and Tenant's
Broker, which commissions Landlord shall be obligated to pay. Tenant
acknowledges Landlord is not liable for any representations by Landlord's Broker
regarding the Premises, the Building, the Building Complex or this Lease.
O. Recordation. Tenant shall not record or permit to be recorded this
Lease or any memorandum of it; and any such recording shall be an Event of
Default.
P. Execution Required. Submission of this Lease or any letter regarding
it for examination or signature by Tenant shall not grant to Tenant an option or
right to lease the Premises; and this Lease shall not be effective as a lease or
otherwise binding on either party until execution and delivery by both Landlord
and Tenant.
Q. Attorney's Fees. If either party brings an action to enforce any
provision of this Lease, the prevailing party shall be entitled to recover its
reasonable attorney's fees, as determined by the court.
R. Time of Essence. Time is of the essence herein.
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28. COUNTERPARTS. This Lease may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Any one or more counterpart signature
pages may be removed from one counterpart of the Lease and annexed to another
counterpart of the Lease to form a completely executed original instrument
without impairing the legal effect of the signature thereon.
29. SIGNAGE. Tenant shall be entitled to its pro rata share of the total
square footage of monument lettering available to the Building. All Building
tenants' monument signage lettering shall be consistent in size. Additionally,
Tenant shall have exterior Building signage rights which shall be limited to
placement on a single side of the Building, to be selected, as hereinafter
provided, by Tenant from the North, South or East face of the Building, and
Tenant's signage rights on the selected side of the Building to be exclusive.
Tenant shall make such selection by written notice to Landlord on the earlier of
(i) December 31, 1998, or (ii) ten (10) days following Landlord's written
request in conjunction with Landlord's leasing of the Building. If Tenant fails
to so timely elect, Tenant shall be deemed to have waived such exterior signage
rights. Said monument signage is to be shared (on the aforementioned pro rata
basis) with other Building tenants. The number, location, design and size of
signs shall be by mutual agreement of the parties and shall be subject to
applicable laws, as well as protective covenants and architectural codes
applicable to the Real Property and the approval of local governing authorities.
Tenant will bear the costs of removal of any signage at the termination or
expiration of the Lease, including restoring or repairing damages to the
monuments, or the Building caused by such removal to the condition at the time
of installation. Landlord will be responsible, as a direct expense chargeable to
tenants with exterior Building and monument signage, to maintain such signage in
good condition and in accordance with the requirements of the declaration of
protective covenants applicable to the Real Property. Tenant shall not affix or
modify signage to monuments, the outside of the Building or to the inside of the
Building without the approval of Landlord, in Landlord's reasonable discretion.
Finally, Landlord shall, at its expense, provide at least 3 spaces in the
Building's tenant directory for identifying Tenant.
30. MOVING ALLOWANCE. Subject to the provisions hereinafter set forth,
Landlord shall pay Tenant for the cost of relocation from its present location
to the Premises, including, without limitation, costs incurred for the move and
transportation of Tenant's personal property, the purchase of new letterhead,
telephone and data service relocation fees and client notification costs
("Moving Allowance"). The amount of such Moving Allowance shall be the $1.50 per
rentable square foot contained in the primary Premises or $105,141.00 (subject
to reduction or increase pursuant to Paragraph 33 below). The amount of
$105,141.00 (subject to reduction or increase pursuant to Paragraph 33 below)
payable to Tenant by Landlord pursuant to this Paragraph shall be paid in one
lump sum by Landlord within 30 days after the Commencement Date.
31. EXCLUSIVITY. Landlord and Tenant have mutually agreed that so long as
no uncured Event of Default exists hereunder, Landlord shall not lease space in
the Building to Tenant's Direct Competitors, as hereinafter defined, without
Tenant's prior written consent; provided, however, that in the event of an
assignment of the Lease or a subletting or vacation of more than 25% of the
Premises (other than an assignment to a Related Corporation or Related
Corporation sublessee of the entire Premises), the provisions of this Section
are null and void. Further, the right granted in this Paragraph is personal to
Tenant, is not assignable (other than to a Related Corporation assignee or
Related Corporation sublessee of the entire Premises) and may not be enforced by
any sublessee or assignee of Tenant (other than by a Related Corporation
assignee or Related Corporation sublessee of the entire Premises), regardless of
whether the sublessee or assignee has been approved by Landlord. Direct
Competitors" shall mean any company selling products or providing services for
Geographic Information Systems, Energy Management Systems and/or Infrastructure
Management Services.
32. LEASE OF STORAGE SPACES.
A. Lease of Spaces. Landlord hereby leases to Tenant, and Tenant leases
from Landlord, an additional (a) approximately 1,000 rentable square feet of
space located near the Building's rear loading dock area and as depicted on
Exhibit A-1 ("Distribution Space") and (b) approximately
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3,000 rentable square feet located on the first floor of the Building and as
depicted on Exhibit A-2 ("Storage Space"). Subject to the following provisions,
for all purposes hereunder, the Distribution Space and the Storage Space shall
both be deemed parts of the Premises and subject to all terms and conditions of
this Lease, including, without limitation, Tenant's insurance requirements,
Tenant's indemnification of Landlord, surrender, obligations and the exemption
of Landlord from liability. Tenant shall not receive any additional Parking
Spaces or additional Moving Allowance for lease of the Distribution Space and
the Storage Space.
B. Use. Notwithstanding anything to the contrary contained in this
Lease, Tenant shall use the Distribution Space and the Storage Space only for
storage of personal property of Tenant. In no event shall Tenant place or store
any property in the Distribution Space and the Storage Space which is hazardous
to persons or property.
C. Base Rent and Other Matters. As set forth in Part 1 of the Lease, in
addition to Base Rent, Tenant shall pay to Landlord as additional Base Rent (a)
for the Distribution Space, an amount equal to $22.00 per rentable square foot
within the Distribution Space and (b) for the Storage Space, an amount equal to
$20.00 per rentable square foot within the Storage Space. The Distribution Space
and the Storage Space shall be completed with tenant finish improvements
pursuant to the Work Letter attached hereto; provided, however, that Landlord
Allowance for the Distribution Space shall be equal to $16,270.00 (or $16.27 per
rentable square foot) and Landlord's only improvement obligations as to the
Storage Space shall be expressly limited to providing Building standard
sprinklers, lights and ventilation.
33. OPTIONS TO INCREASE OR DECREASE PREMISES.
A. Options. Subject to the provisions hereinafter set forth, Landlord
grants to Tenant options (each, an "Option") to elect to (i) increase or
decrease the 70,094 total rentable square footage contained within the primary
Premises by 10,000 rentable square feet ("Modification Space"), subject to the
provisions of this Paragraph hereinafter set forth (the location of the
Modification Space (in the event of any increase) shall be determined by
Landlord and the location of the Modification Space (in the event of any
decrease) shall be on the fifth floor, and/or (ii) to decrease either or both
the Distribution Space and Storage Space to zero rentable square feet of space
(either or both "Eliminated Space").
B. Exercise Notice. Tenant may exercise either Option by giving
Landlord written notice ("Exercise Notice") of its elections on or before March
31, 1999, and Tenant's failure to so timely provide such written notice shall
mean that Tenant's Options (or other Option, as the case may be) granted
hereunder shall be deemed expired and of no further force and effect.
C. Amendment. After timely receipt of the Exercise Notice, Landlord and
Tenant shall enter into an amendment ("Amendment") of this Lease acceptable to
Landlord. Such Amendment shall provide that this Lease shall be deemed modified
as follows:
(1) The term "Premises" shall be deemed to (i) include or exclude
the Modification Space, as applicable and/or (ii) exclude the Eliminated Space,
as applicable;
(2) The Base Rent shall be increased or decreased, as applicable, by
an amount determined by multiplying the number of rentable square feet in the
Modification Space times Base Rent rate for the primary Premises square footage
rate as provided in Part 1 above and/or by multiplying the number of rentable
square feet in the Eliminated Space times the Base Rent payable for the
Eliminated Space as provided in Part 1 above;
(3) Tenant's Pro Rata Share shall be increased by a percentage equal
to the actual number of rentable square feet in the Modification Space divided
by the number of rentable square feet in the Building and/or decreased by a
percentage equal to the number of square feet in the Eliminated space divided by
the number of rentable square feet in the Building;
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(4) Landlord's Allowance and the Moving Allowance shall both be
modified to reflect the lesser or greater, as applicable, number of square feet
within the primary Premises and to reflect the reduction or elimination of that
portion of the Landlord's Allowance applicable to the Eliminated Space, if any;
and
(5) The number of Parking Spaces shall be increased or decreased
pursuant to the parking ratios set forth in Part 1 above.
If Tenant elects to increase the primary Premises, then, other than the
modifications set forth herein, the terms and conditions hereof shall govern
Tenant's lease of the Modification Space. If Tenant elects to decrease the
primary Premises or to exclude the Eliminated Space then effective on the date
of the Amendment, the Tenant shall be released from all obligations pertaining
to the Modification Space and the Eliminated Space.
D. Not Transferable. Tenant acknowledges and agrees that the Options
granted herein shall be deemed personal to Tenant and if Tenant subleases,
assigns or otherwise transfers any interests hereunder prior to the exercise of
Options, such option shall lapse and be of no further force and effect.
E. No Default. Tenant may exercise the Options, and an exercise thereof
shall only be effective, provided that at the time of Tenant's exercise of the
Options and on the Amendment date (i) this Lease is in full force and effect,
(ii) Tenant is not in Default following any applicable cure period hereunder,
and (iii) no event has occurred which, with the giving of any applicable notice
or passage of time, would constitute a Default.
34. EXPANSION OPTION.
A. Expansion Space. Subject to the provisions hereinafter set forth,
Landlord grants to Tenant an option ("Expansion Option") to lease up to an
additional approximately 20,000 rentable square feet of space within the
Building (individually and collectively, "Expansion Space"), on the same terms
and conditions as set forth in this Lease, except as otherwise provided in this
Paragraph. It is understood and agreed that the Expansion Space shall be on a
floor or floors and in a configuration as determined by Landlord, that the
Expansion Spaces may be available in phases, that the Expansion Space may be
comprised of multiple suites which are not contiguous to one another, and that
the suites comprising the Expansion Space will be provided to Tenant only in
their then existing demised rentable square foot increments.
B. Exercise Notice. Tenant may exercise the Expansion Option by giving
Landlord written notice ("Exercise Notice") of its desire to lease the Expansion
Space. Such Exercise Notice must be received by Landlord on or before the last
day of the 48th month of the initial Term. If the Exercise Notice is not
received in the required time period, then the Expansion Option shall be deemed
null, void and of no further force or effect. Tenant's Exercise Notice shall
identify the approximate number of rentable square feet Tenant desires up to the
maximum 20,000 rentable square feet. Within 30 days following Tenant's Exercise
Notice to Landlord, Landlord shall notify Tenant of the Expansion Space suites,
the total rentable square footage and estimated commencement date (or dates) of
the Expansion Space suites based on such suites' differing existing lease
expiration dates; provided, that, the Landlord agrees that all expiration dates
for the lease terms of suites within the Expansion Space shall not exceed the
last day of the 72nd month of the initial Term hereunder.
C. Expansion Amendment. After receipt of an Exercise Notice, Landlord
and Tenant shall enter into an amendment ("Expansion Amendment") of this Lease
acceptable to Landlord. Such Expansion Amendment shall provide that from and
after the applicable date on which the Expansion Space is demised to Tenant on
the date which is the earlier of (i) the date the Expansion Space, or any
portion thereof, is Ready for Tenant (each on "Expansion Space Commencement
Date"), this Lease shall be deemed modified as follows:
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(1) The term "Premises" shall be deemed to include the Expansion
Space;
(2) The term of the Expansion Space shall commence upon the
Expansion Space Commencement Date, as hereinafter defined, and shall expire on
the Lease Expiration Date, as the same may be extended;
(3) The Base Rent shall be increased by an amount determined by
multiplying the number of rentable square feet in the Expansion Space (not to
exceed 20,000 rentable square feet) times 95% of the Market Rate determined as
provided in Paragraphs 37.B, C and D below, in effect during the Term, but in
no event less than the Rent payable for the primary Premises, and said Market
Rate determination shall be adjusted to reflect the number of months remaining
in the initial Term following the Expansion Space Commencement Date.
(4) Tenant's Pro Rata Share shall be increased by a percentage equal
to the actual number of rentable square feet in the Expansion Space (or
applicable portion thereof) divided by the number of rentable square feet in the
Building;
(5) The Base Year for the Expansion Space shall be the calendar year
in which the Commencement Date term for the Expansion Space begins and adjusted
pursuant to the provisions of the last sentence of Paragraph 5.B above;
(6) Tenant Finish Work in the Expansion Space shall be installed
pursuant to a Work Letter for the Expansion Space attached to the Expansion
Amendment and the term of the Expansion Space shall commence on the date the
Expansion Space is Ready for Tenant ("Expansion Space Commencement Date"). Said
Work Letter is to provide that Landlord shall contribute to the planning and
construction of the installation of alterations and improvements to such
Expansion Space in an amount equal to the lesser of (i) the Landlord
contribution allowance utilized in determining Market Rate for the Expansion
Space, or (ii) the actual cost and expense of such initial alterations and
improvements ("Expansion Space Allowance"). All such Expansion Space Allowance
to be used for tenant improvements within the Expansion Space, and for no other
purpose whatsoever; provided, however, Landlord shall, at its sole cost and
expense, pay for all demolition expenses, mechanical systems, ceiling grid, tile
and lights associated with the Expansion Space; and
(7) The number of Parking Spaces shall be increased pursuant to the
parking ratios set forth in Part 1 above.
Other than the modifications set forth herein, the terms and conditions hereof
shall govern Tenant's lease of the Expansion Space.
D. Amendment. Landlord shall cause such Expansion Amendment to be
prepared and delivered to Tenant as soon as reasonably possible following its
receipt of Tenant's Exercise Notice and the determination of Base Rent. In the
event that Amendment is not executed by Tenant within 10 days after receipt by
Tenant, then Tenant's rights under this Paragraph shall be null and void, Tenant
shall be deemed to have waived its right under this Paragraph with respect to
the then applicable Expansion Space and Landlord shall have the absolute right
to lease such Expansion Space to any other person or entity. Notwithstanding
Tenant's exercise of its ability to request to lease the Expansion Space
pursuant to the terms of this Paragraph, Landlord shall not be obligated to
deliver possessions of the then Expansion Space to Tenant if, prior to delivery
of possession of the Expansion Space, Tenant shall be in default hereunder
beyond any applicable notice and grace period, in which event the provisions of
this Paragraph shall terminate and be of no further force or effect.
E. Not Transferable. In the event of an assignment of the Lease or
subletting (other than an assignment to or subletting of the entire Premises by
a Related Corporation) or vacation of more than 25% of the Premises (other than
an assignment to or subletting of the entire Premises by a Related Corporation),
Tenant's rights hereunder are null and void. Further, the right granted in this
Paragraph is personal to Tenant, is not assignable (other than Related
Corporation assignee) and may
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not be exercised by any sublessee or assignee of Tenant (other than to a Related
Corporation), regardless of whether the sublessee or assignee has been approved
by Landlord.
F. No Default. Tenant may exercise the Expansion Option, and an
exercise thereof shall only be effective, provided that at the time of Tenant's
exercise of the Expansion Option and on the Expansion Space Commencement Date
(i) this Lease is in full force and effect, (ii) Tenant is not in Default
following any applicable cure period hereunder, and (iii) no event has occurred
which, with the giving of any applicable notice or passage of time, would
constitute a Default.
35. TENANT'S ABILITY TO REQUEST ADDITIONAL EXPANSION SPACE.
A. Additional Expansion Space. Provided that this Lease shall be in
full force and effect and Tenant shall not be in default hereunder beyond any
applicable notice and grace period, Tenant shall have the ability, exercisable
by written notice to Landlord ("Tenant's Notice") given at any time during the
initial Term (but provided to Landlord at least 120 days prior to the date
Tenant desires to occupy additional space in the Building, the time of the
giving of such notice to be of the essence of this Paragraph) to request the
lease of additional space in the Building. Tenant agrees that Tenant's Notice
shall set forth the number of additional rentable square feet of space Tenant
desires to lease, which shall be at least a minimum of 5,000 rentable square
feet and shall not exceed a maximum of 5,000 rentable square feet. Landlord
shall have 30 days from the date it receives Tenant's Notice to evaluate and
determine, in its sole discretion, what Available Space, as defined below in
subparagraph D, if any, then exists in the Building and to provide written
notification thereof to Tenant ("Landlord's Notice"). If Landlord's Notice so
identifies Available Space in the Building, Tenant shall have 5 calendar days
from the date of Landlord's Notice to notify Landlord, in writing, of its
election to either accept or reject the Available Space ("Tenant's Response
Notice").
B. Lease Terms. In the event that Tenant elects in its Tenant's
Response Notice not to accept such Available Space, Tenant shall be deemed to
have waived its rights under this Paragraph with respect to such Available Space
and Landlord shall have the absolute right to lease such Available Space to any
other person or entity. If Tenant elects in its Tenant's Response Notice to
accept the lease of the Available Space, Landlord and Tenant shall enter into an
amendment ("Amendment") of this Lease acceptable to Landlord to include such
Available Space (hereinafter the "Additional Expansion Space") under the terms
of this Lease and to provide that from and after the applicable Additional
Expansion Space Commencement Date (as hereinafter defined), the Lease shall be
deemed modified as follows:
(1) The term "Premises" shall be deemed to include the Additional
Expansion Space;
(2) The term of the Additional Expansion Space shall commence upon
the date the Additional Expansion Space is Ready for Tenant ("Additional
Expansion Space Commencement Date") and shall expire on the Expiration Date, as
the same may be extended;
(3) Such Additional Expansion Space shall be added to the Premises
upon the terms and conditions and at a rental rate comparable to those on which
Landlord would lease the Additional Expansion Space, if it became available for
leasing in the Building as of the time Tenant's occupancy thereof would commence
and recognizing that the term of such Additional Expansion Space shall be the
number of months remaining on the initial Term hereunder and including any costs
incurred by Landlord in relocating existing tenants located in the Additional
Expansion Space, but in no event shall the rental rate be less than the Rent
which Tenant is then paying for the primary Premises. Such terms and conditions
may include, among other things, escalations and pass-throughs and parking
allocations.
(4) Tenant's Pro Rata Share shall be increased by a percentage equal
to the actual number of square feet in the applicable Additional Expansion Space
divided by the number of rentable square feet in the Building; and
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(5) Tenant shall accept the Additional Expansion Space in its "as
is" condition as of the Additional Expansion Space Commencement Date.
C. Amendment. Landlord shall cause such Amendment of this Lease to be
prepared and delivered to Tenant as soon as reasonably possible following its
receipt of Tenant's Notice wherein Tenant elects to lease such Additional
Expansion Space. In the event that the Expansion Amendment is not executed
within 10 days after receipt by Tenant, then Tenant's rights under this
Paragraph shall be null and void, Tenant shall be deemed to have waived its
right under this Paragraph with respect to the then applicable Additional
Expansion Space and Landlord shall have the absolute right to lease such
Additional Expansion Space to any other person or entity. Notwithstanding
Tenant's exercise of its ability to request to lease the Additional Expansion
Space pursuant to the terms of this Paragraph, Landlord shall not be obligated
to deliver possession of the then Additional Expansion Space to Tenant if, prior
to delivery of possession of the Additional Expansion Space, Tenant shall be in
default hereunder beyond any applicable notice and grace period, in which event
the provisions of this Paragraph shall terminate and be of no further force or
effect.
D. Available Space. The term "Available Space" shall mean any space in
the Building which, in Landlord's determination in its sole discretion, as of
the date of Tenant's Notice, (i) is not the subject of lease negotiations per a
written lease proposal, (ii) is not in a shell condition, (iii) is not the
subject of rights or interests conferred to other tenants' space, as contained
in any lease, or otherwise, then in effect, including, without limitation,
options or rights regarding renewal, extension or expansion, subleases or
assignments, and (iv) has in its lease a relocation clause. Notwithstanding the
foregoing to the contrary, Landlord agrees to use reasonable efforts to include
a Landlord's relocation provision in all leases within the Building containing
5,000 or less rentable square feet; provided, however, that any such relocation
clause shall be expressly contingent upon Landlord's ability to relocate such
tenant in the Building and if no space exists at the time of Tenant's Notice,
then, notwithstanding anything contained in this Xxxxxxxxx 00, Xxxxxxxx shall
have no obligation to relocate any such tenants to create Available Space for
Tenant under this Paragraph 35. It is also understood and agreed that the
Available Space identified in Landlord's Notice shall be in a configuration and
location as determined by Landlord, may not be contiguous to the Premises, may
consist of multiple suites in the Building which are not contiguous to one
another, and that the suites comprising the Available Space will be provided to
Tenant only in their then existing demised rentable square foot increments,
which may or may not equal precisely 5,000 rentable square feet. Further, Tenant
hereby acknowledges that nothing contained herein shall be deemed to limit or
preclude Landlord's right to actively market or lease the Building and to enter
into any and all lease commitments with any party pertaining to the same.
E. Termination. The option herein granted shall continue only so long
as there have been no uncured Event of Default hereunder by Tenant and only so
long as there are at least 36 months remaining on the initial Term following the
Additional Expansion Space Commencement Date. In the event of an assignment of
the Lease or a subletting (other than an assignment to or subletting of the
entire Premises by a Related Corporation) or vacation of more than 25% of the
Premises (other than an assignment to or subletting of the entire Premises by a
Related Corporation), Tenant's rights under this Paragraph are null and void.
Further, this right granted in this Paragraph is personal to Tenant, is not
assignable (other than to a Related Corporation assignee) and may not be
exercised by any sublessee or assignee of Tenant (other than to a Related
Corporation assignee or sublessee of the entire Premises), regardless of whether
the sublessee or assignee has been approved by Landlord.
36. RIGHT OF FIRST REFUSAL. Subject to the renewal options and expansion
options granted in written leases entered into with the initial tenants first
occupying space in the Building, whether entered into before or after the date
of this Lease, if during the initial Term, Landlord shall receive a written bona
fide offer ("Offer"), satisfactory to Landlord in its sole discretion, to lease
any space in the Building (the "Refusal Space"), Landlord agrees to offer to
Tenant, by notice ("Offer Notice"), the one-time right to lease the Refusal
Space upon the same terms and conditions set forth in the Offer and, at Tenant's
election, Tenant may elect to lease such same on the same terms and
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conditions set forth in the Offer, as adjusted to reflect the number of months
remaining in the initial Term.
A. Exercise. Provided this Lease shall then be in full force and effect
and Tenant shall not be in default hereunder beyond any applicable notice and
grace period, Tenant may exercise its right to lease the Refusal Space by
written notice to Landlord within 10 days after the date of the Offer Notice,
the time of the giving of such notice to be of the essence of this Paragraph, in
which event Landlord and Tenant shall enter into a amendment of this Lease,
reasonably acceptable to Landlord, to incorporate the terms and conditions set
forth in the Offer. In the event that Tenant fails to accept the offer contained
in Landlord's Notice within such 10-day period or fails to execute an Amendment
modifying this Lease to incorporate the terms and conditions contained in the
Offer within 10 days after such Amendment has been delivered to Tenant, Tenant
shall be deemed to have waived its rights under this Paragraph to lease the
Refusal Space, Landlord shall have the absolute right to lease the Refusal Space
to any other person or entity on any same terms and conditions, and Tenant shall
have no further rights with respect to the Refusal Space. Notwithstanding
Tenant's acceptance of the Offer pursuant to the terms of this Paragraph,
Landlord shall not be obligated to deliver possession of the Refusal Space to
Tenant if, prior to delivery of possession of the Refusal Space, Tenant shall
be in Default hereunder beyond any applicable notice and grace period, in which
event the rights of Tenant hereunder shall terminate and be of no further force
or effect.
B. No Default. The option herein granted shall continue only so long as
there have been no uncured Defaults hereunder by Tenant and only so long as
there are at least 36 months remaining on the initial Term as of the Refusal
Space Commencement Date. In the event of an assignment of the Lease or a
subletting (other than an assignment to or subletting of the entire Premises by
a Related Corporation) or vacation of more than 25% of the Premises (other than
an assignment to or subletting of the entire Premises by a Related Corporation),
Tenant's rights under this Section are null and void. Further, this right
granted in this Section is personal to Tenant, is not assignable (other than to
a Related Corporation assignee) and may not be exercised by any sublessee or
assignee of Tenant (other than to a Related Corporation assignee or sublessee of
the entire Premises), regardless of whether the sublessee or assignee has been
approved by Landlord.
37. OPTIONS TO EXTEND. As additional consideration for the covenants of
Tenant hereunder, Landlord hereby grants Tenant two options (the "Options") to
extend the term of the Lease for consecutive terms of 5 years each (singularly,
the "First Option" or "Second Option," as applicable, and collectively, the
"Option Term"). The Options shall apply to all space contained in the Premises
at the time each Option arises hereunder and shall be on the following terms and
conditions:
A. Exercise of Option. Written notice of Tenant's exercising an Option
("Notice") shall be given to Landlord no earlier than 420 days and no less than
365 days prior to the expiration of the then current Term and, upon the giving
of such Notice, this Lease and the Term shall be extended with the same force
and effect as if the applicable Option Term had originally been included in the
Term and the Expiration Date shall thereupon be deemed to be the last day of the
then applicable Option Term. Tenant's right to exercise an Option shall be
conditioned on there being no uncured Event of Default under the Lease at the
time of exercise of the Option or at the time of the commencement of the
respective Option Term.
B. Rent Determination. The Options granted hereunder shall be upon the
terms and conditions contained in the Lease except (i) options to extend,
following the Options granted in this Section, and rights of first offer or
abilities to request expansion space shall not be applicable, (ii) no Landlord's
contributions, tenant allowances or similar concessions shall be applicable,
(iii) no leasing commissions shall be payable by Landlord, (iv) the Base Year
for the First Option shall be the last year of the initial Lease Term and the
Base Year for the Second Option shall be the last year of the First Option Term,
(v) the restriction on increases in the Capped Operating Expenses shall not
apply during either Option Term, and (vi) the Rent to be paid by Tenant to
Landlord during the Option shall be equal to 95% of the then Market Rate, as
hereinafter defined; provided, however, that in no event shall the
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Rent be less than the Rent payable in the last year of the initial Term or, if
applicable, the last year of the First Option. Subject to said caveat, Rent for
each Option shall be determined as follows:
(1) Within 14 days of Landlord's receipt of an Option Notice,
Landlord shall notify Tenant in writing ("Landlord's Notice") of the proposed
Market Rate, and the resulting Rent, applicable to the Option ("Landlord's Rent
Rate"). Tenant shall, within 14 days following receipt of Landlord's Notice,
notify Landlord in writing of the acceptance or rejection of the Landlord's Rent
Rate set forth therein. If Tenant fails to respond to Landlord's Notice within
such 14-day period, Tenant shall be deemed to have accepted Landlord's Rent
Rate. If Tenant rejects Landlord's Rent Rate, Tenant's rejection notice shall
state Tenant's estimate of the Market Rate, and the resulting Rent, applicable
to the Option ("Tenant's Rent Rate"). Landlord shall, within 14 days following
receipt of notice of Tenant's Rent Rate, notify Tenant of its acceptance of the
Tenant's Rent Rate. If Landlord fails to respond within such 14-day period,
Landlord shall be deemed to have rejected Tenant's Rent Rate. Landlord and
Tenant shall act in good faith in estimating and proposing their respective
determinations of the Market Rate.
(2) If Landlord rejects Tenant's Rent Rate, the parties shall
thereafter attempt to negotiate the Rent in good faith. If, however, the parties
have not agreed on the Rent within 40 days after the date of the then applicable
Option Notice, the Rent for the renewal term in question shall be determined as
set forth below:
(a) Within 60 days after delivery by Tenant of the Option Notice
in question, Landlord and Tenant shall each appoint an Appraiser, as hereinafter
defined. The two Appraisers shall meet promptly and attempt to determine the
Market Rate for the renewal term in question. The determination made by the two
Appraisers, if they agree, shall be the Market Rate. If the amounts determined
by the two Appraisers vary by less than 5%, then the average of the two values
shall be the Market Rate.
(b) If the Market Rate is not established pursuant to
sub-paragraph (a) within 10 days following their appointment, the two Appraisers
shall immediately select a third Appraiser. If they are unable to agree on a
third Appraiser within 5 days, then they shall each select the names of two
willing persons qualified to be Appraisers hereunder and from the four persons
so named, one name shall be drawn by lot by a representative of Tenant in the
presence of a representative of Landlord, and the person whose name is so drawn
shall be the third Appraiser. If either of the first two Appraisers fails to
select the names of two willing, qualified Appraisers so that a third Appraiser
can be selected by lot, as aforesaid, the third Appraiser shall be selected by
lot from the two Appraisers which were selected by the other Appraiser for the
drawing. The three Appraisers so selected shall confer and immediately proceed
to determine the Market Rate for the renewal term in question. If the three
Appraisers fail to agree on such Market Rate within 10 days after the selection
of the third Appraiser, the average of the two determinations of Market Rate
which are closest to each other shall be the Market Rate for the renewal term in
question.
(c) The Appraisers selected hereunder shall deliver a signed
written report of their appraisal, or the average of the two closer appraisals,
as the case may be, to Tenant and Landlord. The fee of the Appraiser initially
selected by Tenant shall be paid by Tenant, the fee of the Appraiser initially
selected by Landlord shall be paid by Landlord, and the fee of any third
Appraiser and any expenses reasonably incident to the appraisal (except
attorneys' fees, which shall be borne by the party incurring the same) shall be
shared equally by Tenant and Landlord. Any vacancy in the office of the
Appraiser appointed by Tenant shall be filled by Tenant, any vacancy in the
office of the Appraiser appointed by Landlord shall be filled by Landlord, and
any vacancy in the office of the third Appraiser shall be filled by the first
two Appraisers in the manner specified above for the selection of a third
Appraiser.
(d) If appraisal proceedings are initiated as provided above in
order to determine the Market Rate which is applicable to the term of an Option,
the decision and award of the Appraisers as to such Market Rate shall be final,
conclusive, and binding on the parties, absent
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settlement by agreement of the parties prior to the rendering by the Appraisers
of any such decision and award and, further, as provided above, the Rent will be
equal to 95% of the Market Rate for the applicable renewal term; provided,
however, that notwithstanding the determination of Market Rent, in no event
shall the Rent be less than the Rent payable in the last year of the Term or, if
applicable, the last year of the First Option.
(e) If Rent is not finally determined prior to the commencement
of the term of an Option, Tenant shall pay Rent in the amount of the Rent
theretofore in effect under this Lease until the final determination of the Rent
for the renewal term in question occurs as provided above. If the final
determination of such Rent is different from the amount paid by Tenant, Tenant
shall promptly pay to Landlord any deficiency in Rent or Landlord shall promptly
pay to Tenant any overpayment of Rent from the commencement of the term of the
Option until such final determination. If appraisal proceedings are initiated,
as provided above, neither Landlord nor Tenant shall disclose its initial
proposal for Market Rate to any of the Appraisers.
C. Appraiser Defined. "Appraiser," used herein, shall mean a person (A)
who is impartial, (B) who has at least ten years' experience as a real estate
broker in the office building leasing market for the Southeast Denver, Colorado
area, (C) who is a senior employee of a nationally or regionally recognized
brokerage firm who has not acted as the primary representative on such broker's
firm's account for either Landlord or Tenant in the previous three years, and
(D) who is a Colorado licensed real estate broker in good standing and is a
member of the Society of Industrial and Office Realtors, or a successor or
similar organization of recognized national standing.
D. Market Rate Defined. "Market Rate" shall mean the annual rental
rates then being charged in the Building and in the Suburban Denver, Colorado
area for space comparable to the space for which the Market Rate is being
determined, taking into consideration (i) use, location and floor level within
the applicable building, (ii) the location, quality and age of the building,
(iii) the definition of rentable area or net rentable area, as the case may be,
with respect to which such rental rates are computed, (iv) leasehold
improvements allowances provided, but assume the space has been previously built
out and the leasing of the space is on an "as is" basis, (v) rental concessions
offered with respect to such other space (such as abatements, lease assumptions
or takeovers and moving expenses), (vi) the date the particular rate under
consideration became effective, (vii) the term of the lease under consideration,
(viii) the fact that no brokers' commissions will be payable by Landlord in
connection with the applicable Option, (ix) the extent of services provided
thereunder, (x) applicable distinctions between "gross" leases and "net" leases,
(xi) as provided above, base year figures for escalation purposes, (xii) the
credit rating or worthiness of the Tenant under this Lease, (xiii) any other
adjustments (including by way of indexes) to rental, (xiv) availability, nature
and quality of parking and separate parking charges, if any, for covered parking
rights, and (xv) any other relevant term or condition in making such evaluation.
E. Expiration of Options. After failure to exercise the First Option
above described or after the exercise of the Second Option, there shall be no
further rights on the part of Tenant to extend the term of the Lease.
38. TERMINATION OPTION. Landlord hereby agrees to use reasonable efforts to
accomplish the following Building construction events on or before each of the
below-listed dates (each, a "Milestone Event"):
(a) Commencement of site grading by August 16, 1998;
(b) Receipt of building construction permit by September 17, 1998;
(c) Commencement of building foundation by September 28, 1998.
If Landlord fails to commence such Milestone Events by each of the
above-referenced deadlines, then such deadline shall automatically be deemed
extended for 60 additional days (each, an "Extended Deadline"). If Landlord
thereafter fails to commence such Milestone Event by the Extended Deadline,
Tenant shall have an option ("Termination Option") to terminate this Lease.
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A. Termination Notice. The Termination Option shall be exercisable by
Tenant by written notice ("Termination Notice") from Tenant to Landlord of
Tenant's election to exercise the Termination Option, such notice to be received
by Landlord no later than (a) on or before the date Landlord completes the
applicable Milestone Event or (b) the date which is 5 business days following
the Extended Deadline. If Tenant fails to so deliver to Landlord the
Termination Notice, the Termination Option shall lapse as to the applicable
Milestone Event and Tenant shall have no further right to terminate the Lease
based upon the failure to meet the then applicable Milestone Event deadline and,
further, following the expiration of the final Extended Deadline exercise
period, Tenant's right to terminate this Lease under this Paragraph shall expire
and be of no further force or effect.
B. Excused Delays. Further, notwithstanding the foregoing to the
contrary, any Milestone Event deadline or Extended Deadline shall be deemed
automatically extended as a result of any Excused Delay, as said term is defined
in the Work Letter.
C. Termination Fee. If Tenant validly exercises the Termination Option,
Landlord acknowledges and agrees that Landlord shall pay to Tenant $100,000.00
plus Tenant's then actual out-of-pocket architectural and engineering fees,
within 30 days after receipt of written invoice evidencing such actual fees. As
of the termination effective date, all obligations of the parties shall cease
and terminate in the same manner as upon expiration of the Term.
D. No Default. Tenant may exercise the Termination Option, and an
exercise thereof shall only be effective, provided that at the time of Tenant's
exercise of the Termination Option,(i) this Lease as hereby amended is in full
force and effect; (ii) Tenant is not in default following any applicable notice
and the expiration of any applicable cure period hereunder the Lease, and (iii)
no event has occurred which, with the giving of any applicable notice or passage
of time would constitute a default.
E. Not Transferrable. Tenant acknowledges and agrees that the
Termination Option shall be deemed to be personal to Tenant and if Tenant
subleases, assigns or otherwise transfers any interests under the Lease to any
person or entity prior to the exercise of the Termination Option, the
Termination Option shall lapse and be forever waived.
[INTENTIONALLY LEFT BLANK]
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Dated: August 28, 1998.
"LANDLORD"
FIDDLER'S GREEN CENTER,
a Delaware limited liability company,
By: /s/ XXXXX X. XXXXX
------------------------------------
As its: Manager
--------------------------------
"TENANT"
CONVERGENT GROUP CORPORATION,
a Delaware corporation
By: /s/ XXXXX X. XXXXXXXXXX
------------------------------------
As its: CEO
--------------------------------
Attest:
By: /s/ [ILLEGIBLE]
---------------------------
Title: V/P Finance
-----------------------
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EXHIBIT A
DEPICTION OF PRIMARY PREMISES
(See attached)
A-1
44
[FIFTH FLOOR PLAN]
45
[SIXTH FLOOR PLAN]
46
EXHIBIT B
XXXXX XXXXXXXXXXX XX XXXXXXXX XXXXXXX
Xxx 0,
Xxxxxxxxx Xxxxx Filing No. 6
Arapahoe County, Colorado
To be replatted to reduce to Building area only.
B-1
47
EXHIBIT C
TENANT IMPROVEMENT AGREEMENT
This Agreement is a part of the Office Lease entered into by FIDDLER'S
GREEN CENTER, a Delaware limited liability company, as Landlord, and
CONVERGENT GROUP CORPORATION, a Delaware corporation, as Tenant, pertaining
to the Fiddler's Green Center - Building A (the "Lease"). Except as
expressly provided to the contrary herein, all capitalized terms used in
this Agreement shall have the same meaning as set forth in the Lease to
which this Exhibit C is attached.
1 . Base Building Improvements. Landlord, at its expense, shall
construct in or for the Premises the following improvements with Building
standard materials and installation (the "Base Building Improvements"):
See attached Exhibit C-1.
2. Preliminary Space Plans. Pursuant to the terms of this Agreement,
Landlord shall cause the leasehold improvements to be constructed within
the Premises in addition to the Base Building Improvements (the "Tenant
Finish Work"), substantially in accordance with the preliminary space plans
that are finally approved by Landlord and Tenant and attached hereto as
Exhibit C-2 (the "Preliminary Space Plans"). As hereinafter provided,
Tenant shall cause Tenant's architect, Xxxxxxxxx Xxxxxx Incorporated
("Tenant's Architect") to prepare and submit the Final Space Plans and
Construction Drawings pursuant to the Improvement Schedule, as each term is
hereinafter defined. The Final Space Plans and Construction Drawings may be
modified at Tenant's request prior to commencement of construction pursuant
to revised Final Space Plans and Construction Drawings resubmitted to
Landlord for approval, provided such modifications do not cause
construction and completion delays, or, if so, such delays will be deemed a
Tenant Delay, as hereinafter defined. The parties have agreed upon the
following schedule (the "Improvements Schedule") for completion of the
preparation, review and approval of the final Space Plans ("Final Space
Plans"), the Construction Drawings and the obtaining of pricing information
and the satisfaction of permitting requirements with respect to the
construction of the Tenant Finish Work within the Premises as follows:
October 1, 1998: Delivery of Final Space Plans, substantially in
accordance with the Preliminary Space Plans, by
Tenant to Landlord.
October 6, 1998: Landlord's approval or disapproval of (including
any Landlord requested changes to) the Final Space
Plans.
October 12, 1998: Tenant submission to Landlord the names of and
supporting information for 2 (other than Xxxxxxx
Construction, Landlord's Building general
contractor) Qualified General Contractors, as
hereinafter defined.
October 30, 1998: Landlord's approval of 2 Qualified General
Contractors.
December 15, 1998: Delivery of Construction Drawings, substantially in
accordance with the approved Preliminary Space
Plans, by Tenant to Landlord.
December 24, 1998: Landlord's approval or disapproval of (including any
changes to) the Construction Drawings.
December 30, 1998: Delivery of revised Construction Drawings
(including any Landlord requested changes) by
Tenant to Landlord.
January 15, 1999: Landlord's pricing of the Construction Drawings and
submission to Tenant, as hereinafter provided.
C-1
48
February 1, 1999: Tenant's approval or disapproval of the pricing
information for the Construction Drawings.
February 10, 1999: If Tenant has disapproved pricing information,
Tenant's resubmission of revised Construction
Drawings to eliminate or modify aspects thereof to
reduce the pricing of the Construction Drawings to
an amount acceptable (and identified) by Tenant.
February 17, 1999: Tenant's approval of revised Construction Drawings
and revised pricing. Tenant's affirmation of the
selected contractor, as hereinafter provided.
March 1, 1999: Contractor contracts for construction of Tenant
Finish Work.
Provided, that Landlord meets its deadlines hereunder (subject to
Tenant Delays, as hereinafter defined), to the extent that Tenant fails to
make any response (including providing required information) or deliver any
approval or disapproval within the applicable time-frame required above or
in the event the response, approval or disapproval of Tenant requires
modifications or revision to the Space Plans, the Construction Drawings or
pricing for the Tenant Finish Work, which modification or revision results
in a delay of the schedule noted above, all such delays shall be deemed an
event of Tenant Delays, as further defined below, and shall also be deemed
Excused Delays (as hereinafter defined). In the event any Tenant Delay
results in a delay in any of the milestones noted in the schedule above,
each of the succeeding milestones in such schedule shall be extended by one
day for each such day of Tenant Delay. To the extent Landlord fails to meet
the milestones established by the schedule noted above, Tenant time for
response or delivery of approval or disapproval shall be similarly
increased on a day-for-day basis as to subsequent milestones.
If Landlord disapproves of the final proposed Construction Drawings,
Tenant shall make such changes to the final proposed Construction Drawings
as reasonably requested by Landlord, and shall resubmit such amended final
Construction Drawings for Tenant approval or disapproval. Landlord and
Tenant agree that they shall act reasonably and in good faith in connection
with the preparation and approval of the final Construction Drawings. The
cost of the final Construction Drawings shall be paid out of the Landlord's
Allowance (hereinafter defined).
3. Landlord's Allowance. Landlord shall provide Tenant with a
leasehold improvement allowance in the amount of (i) $24.50 per rentable
square foot of the primary Premises, inclusive of $2.00 per rentable square
foot for architectural and engineering fees and $0.25 per rentable square
foot for tenant's construction consultant, and (ii) $16.27 per square foot
of the Distribution Space (subject to the provisions of Paragraph 33 of the
Lease), also inclusive of architectural, engineering and construction
management fees (the "Landlord's Allowance"). Additionally, at Tenant's
written request (provided to Landlord as part of Tenant's acceptance of the
final pricing information), Landlord will provide an additional leasehold
improvement allowance for the primary Premises of up to the lesser of (i)
the actual costs of the Tenant Finish Work in excess of Landlord's Allowance
or (ii) $10.00 per rentable square foot ("Excess Allowance"). Said Excess
Allowance shall be repaid by Tenant to Landlord in the form of an increase
in Base Rent equal to the amortization of the Excess Allowance over the
initial Lease term with an annual interest rate of 10%. Landlord's only
obligation for the Storage Space shall be to provide Building standard
sprinklers, lights and ventilation, for such unoccupied storage area, at
Landlord's sole cost and expense. Hereinafter, the term "Allowance" shall
mean the Landlord's Allowance and, to the extent applicable, the Excess
Allowance. Said Allowance shall be applied toward the cost of the Space
Plans, the Construction Drawings and the cost of the Tenant Finish Work,
including any required permits. The Allowance shall be used solely for
Tenant Finish Work which will include, but not be limited to, (i) all
third-party fees and expenses incurred by Landlord in connection with the
design and construction of the Tenant Finish Work, exclusive of Landlord's
Architect's, as hereinafter defined, fees and expenses, which shall be at
Landlord's sole cost and expense, (ii) third-party testing and inspection
costs, and (iii) costs of pre-stock material used in the construction of the
Tenant Finish Work. Tenant shall be entitled to a Rent reduction for any
part of the Landlord's Allowance not so used. Tenant shall not be entitled
to receive any of the Excess Allowance
C-2
49
not utilized for the Tenant Finish Work, as provided hereinabove. Tenant's
Architect and construction consultant shall be paid from the Landlord's
Allowance upon Tenant's submission of an invoice(s) and such reasonable
support documentation as Landlord may request (with payment being in
accordance with Landlord's construction draw/funding cycles on a monthly
basis.
4. Qualified General Contractor. Tenant has requested that, in
addition to Xxxxxxx Construction ("Building General Contractor"),
Landlord's obtaining pricing information from two other general
contractors. Pursuant to the Improvement Schedule milestones, Tenant shall
submit to Landlord the names and appropriate supporting information
(including, but not limited to, resume, references, previous job
descriptions and said contractor's guaranteed maximum price form of
contract) regarding at least 3 general contractors who meet or exceed the
following criteria: (i) demonstrated quality reputation, (ii) duly licensed
as a general contractor in the State of Colorado, (iii) bondable and
insurable, (iv) at least 5 years of office tenant finish construction
experience in the greater Denver Metropolitan area for tenant finish
projects similar in size, scope and pricing to the Tenant Finish Work, and
(v) demonstrated ability (and availability in said General Contractor's
current commitment schedules) to complete the Tenant Finish Work within the
identified construction schedule and on or before September 1, 1999 (each a
"Qualified General Contractor").
5. Construction of Tenant Finish Work. In accordance with the
Improvements Schedule above, Landlord shall obtain and provide Tenant with
a guaranteed bid estimate for the price of the design and construction of
the Tenant Finish Work (the "Price Estimate Bid") from the Building
General Contractor and each of the two approved Building General
Contractors. Tenant shall approve or disapprove the Price Estimate Bid in
accordance with the Improvements Schedule above and designate the General
Contractor to construct the Tenant Finish Work in accordance with the
Improvement Schedule above. Once approved, the Price Estimate Bid shall be
the amount the General Contractor may charge for completing the Tenant
Finish Work. Tenant shall have the right to request that each General
Contractor, as part of its Price Estimate Bid, obtain competitive bids for
all major trades comprising the Tenant Finish Work (including plumbing,
electrical and mechanical work), in which case the following provisions
shall be applicable: (i) any delay in completing the Tenant Finish Work
(beyond the date it would have been completed without such process) shall
be deemed Tenant Delay; (ii) Tenant shall be entitled to participate in the
bidding process (including the process of qualifying the bidders); and
(iii) unless otherwise agreed to in writing by Landlord and Tenant, the
selected General Contractor shall engage the trade subcontractor submitting
the lowest, qualified bid meeting the identified construction schedule to
construct the Tenant Finish Work. Landlord agrees that all information
obtained by Landlord to arrive at the Price Estimate Bid and the price
payable with respect to the Tenant Finish Work, including, but not limited
to, all bids related thereto, as well as all documentation and other
information related to the price of the Tenant Finish Work, shall be made
available to Tenant on an "open-book" basis, and Tenant shall have the
right to review all such records and information.
In accordance with the Improvements Schedule above, Tenant shall cause
its Architect and engineer to prepare construction drawings and
specifications (the "Construction Drawings") for the Tenant Finish Work,
based strictly on the Final Space Plans, and Landlord shall cause the
Tenant Finish Work to be constructed in the Premises in accordance with the
Construction Drawings; provided, however, that Landlord's total cost of
reimbursement for the Space Plans and Construction Drawings and for
constructing the Tenant Finish Work shall not exceed the Allowance. As
hereinabove provided, the Excess Allowance shall be reimbursed to Landlord
in the form of additional Base Rent. Further, any Tenant Finish Work Costs
in excess of the Allowance (the "Excess Costs") will be at Tenant's sole
cost and expense and will be paid promptly by Tenant upon receipt of
billing therefor. Upon substantial completion of the construction of the
Tenant Finish Work and prior to Tenant's occupancy of the Premises, Tenant
shall pay to Landlord the amount, if any, by which the actual cost of
preparing the Construction Drawings and of constructing the Tenant Finish
Work exceeds the Allowance.
If after commencement of the construction of the Tenant Finish Work,
Tenant wants to change the Construction Drawings or scope of the Tenant
Finish Work, it shall notify Landlord. Landlord shall then obtain an
estimate of the additional cost of the Tenant Finish Work, if any,
resulting from any such changes and within 10 days notify Tenant of the
additional cost and any resulting delay in completing
C-3
50
the Tenant Finish Work; and within three business days thereafter, Tenant
shall advise Landlord whether or not it wants to proceed with the changes.
If Tenant elects to proceed with the changes, Landlord shall proceed with
the changes. Any delay in completing the Tenant Finish Work as a result of
such changes shall also be deemed a Tenant Delay for purposes of Paragraph 5
below.
6. Tenant's Delay. The Lease Commencement Date shall not commence until
Landlord has substantially completed the Base Building Improvements and
Tenant Finish Work; provided, however, that if Landlord is delayed in
substantially completing the Base Building Improvements and Tenant Finish
Work as a result of:
A. A Tenant Delay arising under Paragraph 2 or Paragraph 4, as
described in each such Paragraph;
B. Subject to the selected General Contractor's obligation to use
reasonable efforts to timely procure, the unavailability of materials or
installations as a part of the Tenant Finish Work that are other than
Landlord's Building standard materials or installations;
C. Tenant's changes in any previously approved drawings, plans or
specifications, including the Construction Drawings;
D. Any other act or omission of Tenant or Tenant's consultants or
invitees;
E. If other than the Building General Contractor is selected by
Tenant, any delays in the Building construction resulting from said selected
General Contractor's interference with or failure to coordinate with the
identified Building construction schedule.
(each of which shall be a "Tenant Delay"); then the Lease Commencement Date
shall only be extended pursuant to Paragraph 4B of the Lease until the date
on which Landlord would have substantially completed the performance of the
Tenant Finish Work but for the Tenant Delay.
7. Excused Delays. As used herein, the term "Excused Delay" shall mean
any Tenant Delay or any other delay in the construction or completion of the
Base Building Improvements or the Tenant Finish Work resulting from
casualties, acts of God, government embargo, shortages of fuel, labor or
building materials or other causes beyond Landlord's reasonable control.
8. General. Landlord shall notify tenant of the anticipated Lease
Commencement Date in a notice given at least fifteen (15) days prior to the
anticipated Lease Commencement Date. Landlord and Tenant shall thereupon set
a mutually convenient time for Landlord, Tenant and the General Contractor
to inspect the Premises, at which time the parties shall prepare a punchlist
of items to be completed ("Punchlist Items"). Upon completion of the
inspection, Tenant shall acknowledge in writing that substantial completion
of the Tenant Finish Work has occurred, subject to completion of Punchlist
Items to be completed. Landlord shall use reasonable efforts to complete the
Punchlist Items as soon as possible following the Lease Commencement Date.
Tenant shall have the right to inspect the progress of the construction of
the Base Building Improvements and the Tenant Finish Work from time to time,
so long as such inspections do not hinder, delay or otherwise interfere with
construction or installation of the Base Building Improvements or the Tenant
Finish Work. Failure by Tenant to pay any amount when due under this
Agreement shall be an Event of Default under Paragraph 19A of the Lease,
entitling Landlord to all of its remedies under the Lease, as well as all
remedies otherwise available to Landlord.
9. Construction Scheduling. If a General Contractor, other than the
Building General Contractor, is selected by Tenant for the Tenant Finish
Work, Tenant acknowledges that any additional Building construction costs
arising as a result of (i) said General Contractor's failure to adhere to
the Building General Contractor's job site rules and regulations, including
scheduling and coordination to minimize job interference thereof (a) damage,
destruction or injury to the Building General Contractor's employees or
agents, or the property of the foregoing of either, or (b) repairs, "re-dos"
or modifications
C-4
51
of the Building Improvements required as a result of the selected General
Contractor's, or its employees or agents', negligence or wilful misconduct,
shall be incurred by Tenant under the Landlord Allowance or as Excess
Costs, if the Landlord Allowance has (or will be) fully utilized for the
costs of the Tenant Finish Work.
10. Substantial Completion; Ready for Tenant. The Tenant Finish Work
shall be deemed to have been substantially completed and to be Ready for
Tenant when the Landlord has substantially completed the Tenant Finish
Work, exclusive of any punch list work, substantially in accordance with
the final approved Construction Drawings. If the Tenant and Landlord
disagree as to whether the Tenant Finish Work has been substantially
completed, the mutual decision of Xxxxxxxx Xxxxxxxx Architects, Ltd.
("Landlord's Architect") and Tenant's Architect, Xxxxxxxxx Xxxxxx
Incorporated, shall be final and conclusive on that issue.
11. General. All drawings, space plans, plans and specifications for
any improvements or installations in the Premises are expressly subject to
Landlord's prior written approval. Any approval by Landlord or Landlord's
architects or engineers of any of Tenant's drawings, plans or
specifications which are prepared in connection with construction of
improvements in the Premises shall not in any way constitute a
representation or warranty of Landlord as to the adequacy or sufficiency of
the drawings, plans or specifications, or the improvement to which they
relate, for any use, purpose or condition, but this approval shall merely
be the consent of Landlord to Tenant's construction of improvements in the
Premises in accordance with those drawings, plans or specifications.
C-5
52
EXHIBIT C-1
BASE BUILDING/TENANT IMPROVEMENT GUIDELINE
AND
LIST OF PLANS AND SPECIFICATIONS
1) Construction Drawings for the Building entitled "Fiddler's Green Center
- Building I, The Xxxx Xxxxxx Company, Fiddler's Green Circle, Arapahoe
County, Colorado - Building Permit August 17, 1998", prepared by
Xxxxxxxx Xxxxxxxx Architects, Ltd.
2) Fiddler's Green Center - Building I - Project Manual
Specifications - Permit Package, dated August 17, 1998, prepared by
Xxxxxxxx Xxxxxxxx Architects, Ltd.
3) See attached also.
C-1-6
53
EXHIBIT C
BASE BUILDING/TENANT IMPROVEMENT GUIDELINE
SCOPE OF WORK DEFINITION BASE BUILDING VS. TENANT IMPROVEMENT WORK
ITEM BASE BUILDING TENANT IMPROVEMENTS
---- ------------- -------------------
CEILINGS a. No requirement. a. Furnish and install 2' x 4'
acoustical ceiling grid
throughout leasable area.
Furnish and install 2' x 4'
acoustical ceiling tile (not
yet selected) equal to
Xxxxxxxxx'x Second Look
II on each floor.
b. Furnish and install 2 x 2 acoustical
ceiling grid and ceiling tiles in b. No requirement.
required corridors. Ceiling tile equal
to Xxxxxxxxx Cirrus with regular
edge. Toilet room ceilings to be
painted gypsum board.
c. No requirement. c. Provide upgraded ceiling
systems as required by
tenant's space plan.
CORE SERVICE AREAS a. Toilet rooms, telephone, electrical a. No requirements.
rooms, stairwells, janitor closets,
service entry and mechanical rooms
are to be provided complete.
DOORS, FRAMES AND a. Furnish and install natural finished a. No requirement.
HARDWARE flush cherry doors in hollow metal
frames at core building areas.
b. Furnish and install natural finished b. Furnish, install and finish
flush cherry tenant entry doors, per doors, frames and hardware
code, in hollow metal frames with as required by tenant's
sidelights extending the full door space plan.
height and 16" in width. Polished
wire glass in sidelight.
c. Furnish brushed aluminum finish on c. No requirement.
all door hardware. Provide and
install lever handle mortise locks and
closers on all tenant entry and core
building doors.
d. Furnish and install card access, d. No requirement.
electric locks for after hour security at
each of the three entrances.
1
54
ITEM BASE BUILDING TENANT IMPROVEMENTS
---- ------------- -------------------
Electrical a. Furnish and install a complete a. No requirement.
277/480 volt, 3-phase, 6,000 amp
building power distribution system.
12 xxxxx per SF allocated for HVAC
loads.
3.5 xxxxx per SF allocated for overall
lighting (2.2 xxxxx for tenant lighting).
6.4 xxxxx per SF allocated for office
equipment loads (one circuit per 140
SF).
b. Furnish and install on 277 volt b. Lighting circuits distributed
lighting panel in the central from central panel to tenant
electrical room on each floor. fixtures.
c. No requirement. c. Furnish and install stock
piled fixtures as required by
tenant's space plan.
Fluorescent fixtures are to
be 2' x 4' deep cell
parabolic and equipped
with three (3) T8 lamps and
electronic ballasts. Fixture
density at 1:80 RSF.
Furnish and install
connection to J-Box,
switching and accent
lighting.
d. Furnish and install lighting in base d. No requirement.
building rooms.
e. Furnish and install step down e. Furnish and install branch
transformers and three (3) 120/208 circuits for 120 V power to
volt panels at one (1) electrical room tenant spaces from
on each floor, sized to provide 6.4 Electrical Rooms. Furnish
xxxxx per square foot for office and install power poles and
equipment loads and convenience convenience outlets as
power. desired along with any
additional distribution
panels or step down
transformers.
f. Furnish and install code required exit f. Furnish and install code
and emergency lighting for all public required exit and
areas. emergency lighting for all
tenant areas.
2
55
ITEM BASE BUILDING TENANT IMPROVEMENTS
---- ------------- -------------------
ELECTRICAL g. Furnish and install telephone riser g. Furnish and install phone board,
CONTINUED chases to the telephone rooms on each vertical and horizontal distribution
floor. Service available from provider from first floor service entry to
panel on first floor. tenant space.
h. Furnish and install fire management h. Fire management provisions, if any, in
system as required by code, including addition to code requirements.
horn and strobe devices on each floor.
i. Furnish and install exterior site i. No requirement.
lighting.
ELEVATORS a. Furnish and install three 3,500 pound a. No requirement.
and one 4,000 pound capacity electric
traction elevators with 350 feet per
minute travel speed. (9'-7" cab height
available above ceiling in 4,000 pound
car).
b. Furnish and install interior cab wall b. No requirement.
finishes. Brushed stainless steel front
wall. Side & back wall to have stone
wainscot with fabric panels above. Floor
to be stone. Brushed stainless steel
ceiling with recessed can lights.
FIRE EXTINGUISHERS a. Furnish and install one (1) fire a. Furnish and install fire extinguishers
extinguisher in each landing of each and cabinets as required by space layout.
stair.
FIRE PROTECTION a. Furnish and install complete fire a. Relocate or add sprinkler for proper
SPRINKLER SYSTEM protection system per NFPA coverage as dictated by the tenant's
requirements for office occupancy. space plan.
FLOOR COVERING a. Furnish and install quality commercial a. No requirement.
grade carpeting adhered directly to
floor slab in all required corridors.
b. Provide smooth troweled concrete slabs, b. Furnish and install floor coverings for
ready for finish. all areas except toilet rooms and
required common area corridors.
3
56
ITEM BASE BUILDING TENANT IMPROVEMENTS
---- ------------- -------------------
HVAC a. Furnish and install base building a. Furnish and install separate
heating and cooling system. air conditioning or air
o Cooling Ratio: 378 SF/ton handling units for non-standard
o Heating Capacity: 3.59 xxxxx/SF loads (i.e. computer room).
o Cooling Load Allowance:
Lighting: 2.5 watt/SF
Office Equipment: 2 watt/SF
People: 1 occ/100 SF
b. Furnish and install primary trunk b. No requirement.
ducts from air handlers to vicinity of
each zone serviced. Primary air duct
looped on floor.
c. Furnish and install secondary c. Furnish and install runouts,
ductwork and VAV boxes for all zones diffusers and RA grilles.
at a ratio of 1:610 RSF. Perimeter Provide modifications as
zones are fan-powered with required by tenant's space
pinchdown backup. Interior zones are plan.
pinchdown units. Furnish and install
code required fire dampers.
d. Furnish and install base building d. Provide modifications as
energy management system with required by tenant's space
DDC temperature control system plan.
connections to terminal devices.
e. Provide exhaust systems for base e. Install exhaust systems for
building spaces as required. conference rooms, etc.
desired by Tenant.
INTERIOR COLUMNS a. No requirement. a. Furnish and install gypsum
board to columns. Tape and
sand smooth. Apply paint/wall
covering and base.
INTERIOR PARTITIONS a. Construct required building corridor a. Construct gypsum board
walls to underside of structure with partitions as required by
gypsum wall board both sides (rated - tenant's space plan. Finish
1 hour). Furnish and install vinyl as desired. Apply paint/wall
wall covering on corridor walls. covering and base.
4
57
ITEM BASE BUILDING TENANT IMPROVEMENTS
---- ------------- -------------------
LOBBY IMPROVEMENTS a. Furnish and install honed limestone a. No requirement.
with granite accent throughout lobby
and elevator areas. Carpeted areas
inset into stone in seating areas.
b. Furnish and install limestone b. No requirement.
surrounds elevator door on elevator
lobby walls.
c. Furnish and install 2'-0" high stone c. No requirement.
wainscot with fabric wrapped panels
above in balance of lobby.
d. Furnish and install coffered ceiling d. No requirement.
with decorative lighting and accent
recess can fixtures at seating and wall
washers at art work.
e. Furnish and install brushed stainless e. No requirement.
steel elevator frames and doors.
f. Furnish and install pedestal-mounted f. No requirement.
tenant directory with stone base.
g. Furnish and install lobby furnishings: g. No requirement.
Carpeting, seating, plants and art.
h. Furnish and install entrance door h. No requirement.
(full lite aluminum pair of doors
3'-0" x 9'-0" each).
PERIMETER WALLS a. Construct gypsum board walls below a. Apply paint/wall covering
xxxxx and at perimeter columns, taped and base.
and sanded smooth. (Work completed
during tenant buildout.)
b. Furnish and install windowsills. b. No requirement.
(Installed during tenant buildout.)
PLUMBING a. Furnish and install complete a. No requirement.
plumbing in core service areas.
b. Furnish and install electric water b. No requirement.
cooler(s) adjacent to public toilet
rooms.
c. Furnish two (2) tenant rough-in wet c. Furnish and install
columns per floor with opportunity to convenience sinks, water
tie into stack at building core. supply to coffee/vending
areas, etc.
5
58
ITEM BASE BUILDING TENANT IMPROVEMENTS
---- ------------- -------------------
SIGNAGE a. Furnish and install general a. Furnish and install
identification/directional signage at identification signage at
toilet rooms and exit stairwells. tenant entrances.
b. Furnish and install a building directory b. No requirement.
in the main lobby.
c. Furnish and install exterior monument c. No requirement.
signage for building identification.
STAIRS a. Furnish and install painted metal pan a. No requirement.
and riser with poured concrete tread
(sealed). Painted metal xxxxxxxx and
railings.
b. Paint concrete stair walls. Furnish and b. No requirement.
install surface-mounted lighting at stair
landings.
STRUCTURE a. Structural steel frame and composite a. No requirement.
steel and concrete floor structure (fire
proof).
b. Supported floor live load capacity of b. No requirement.
50 pounds per square foot and a
partition load of 20 pounds per square
foot. Center bay and tenant corridor
areas designed for 100 pounds per
square foot live load.
c. Clear ceiling height of 9'-0". c. No requirement.
d. Building shell shall meet ADA code d. No requirement.
requirements.
TOILET FLOORS a. Furnish and install ceramic tile on a. No requirement.
floor and wet walls. Paint on
remaining wall.
b. Furnish and install polished granite b. No requirement.
vanity with porcelain lavatories and
decorative mirrors.
c. Furnish and install baked enamel, c. No requirement.
ceiling hung toilet partitions.
6
59
ITEM BASE BUILDING TENANT IMPROVEMENTS
---- ------------- -------------------
TOILET FLOORS d. Furnish and install wall-mount, flush d. No requirement.
CONTINUED valve water closets and wall-hung
urinals.
e. Fully ADA compliant restrooms. e. No requirement.
WINDOW BLINDS a. Furnish and install horizontal mini- a. No requirement.
blinds on all exterior windows.
7
60
EXHIBIT C-2
PRELIMINARY SPACE PLANS
(See attached)
C-2-1
61
[FIDDER'S GREEN CENTER 6TH FLOOR PLAN]
FIDDLER'S GREEN CENTER
FLOOR 6
SEPTEMBER 1999 PROGRAM - 285 PEOPLE
preliminary pricing: JULY 16, 1998
revised: JULY 1, 1998
space plan: JUNE 4, 1998
[legend] [Xxxxxxxxx Xxxxxx, Inc. Logo]
REFER TO ATTACHED 8 1/2" x 11" PRELIMINARY PRICING SPECIFICATION
62
[FIDDER'S GREEN CENTER 5TH FLOOR PLAN]
FIDDLER'S GREEN CENTER
FLOOR 5
SEPTEMBER 1999 PROGRAM - 285 PEOPLE
preliminary pricing: JULY 16, 1998
revised: JULY 1, 1998
space plan: JUNE 4, 1998
[Xxxxxxxxx Xxxxxx, Inc. Logo]
REFER TO ATTACHED 8 1/2" x 11" PRELIMINARY PRICING SPECIFICATION
63
EXHIBIT D
FORM OF SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (this
"Agreement") made and entered into as of the ___ day of _____________ , 19 __ by
and among ______________________, a ____________________ [corporation],
[(general) (limited) partnership], having an office at _______________________
("Owner"), ___________________, a ____________________, having an office at
________________, ("Mortgagee"), and ___________________, a ___________________,
having an office at _____________ ("Tenant").
W I T N E S S E T H :
WHEREAS, Owner owns the improved real property described in Schedule A
annexed hereto (the "Premises");
WHEREAS, Mortgagee is the owner and holder of the mortgage(s) and/or
deed(s) of trust listed in Schedule B annexed hereto (which mortgage(s) and/or
deed(s) of trust, together with all amendments, increases, renewals,
modifications, consolidations, spreaders, replacements, combinations,
supplements, substitutions and extensions thereof, now or hereafter made, are
hereinafter collectively referred to as the "Mortgage" and which Mortgage,
together with the promissory note or notes and the loan agreement(s), and other
documents executed in connection therewith and any amendments, increases,
renewals, modifications, consolidations, spreaders, replacements, combinations,
supplements, substitutions and extensions thereof, are hereinafter collectively
referred to as the "Loan Documents");
WHEREAS, pursuant to a lease dated_________, 19__ [as amended on _________]
([collectively] the "Lease"), Tenant has leased from Owner, as landlord, a
portion of the Premises (the "Leased Premises") more particularly described
therein; and
WHEREAS, Mortgagee has agreed to recognize the status of Tenant in the
event Mortgagee shall acquire title to Premises by foreclosure, by the
acceptance of a deed in lieu thereof, or any other means and Tenant has agreed
to attorn to Mortgagee in any such event.
NOW THEREFORE, in consideration of the foregoing, the mutual covenants
hereinafter mentioned and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Mortgagee hereby consents to the Lease.
2. Tenant hereby agrees that the Lease is and shall be under, subject and
subordinate at all times to the lien, right, title and terms of the Loan
Documents and all advances and/or payments made, or to be made, under any Loan
Document. In confirmation of such subordination, Tenant shall promptly execute,
acknowledge and deliver any instrument that Mortgagee may request to evidence
such subordination, and Tenant hereby irrevocably constitutes and appoints
Mortgagee as Tenant's attorney-in-fact, coupled with an interest, to execute and
deliver any such instruments for and on behalf of Tenant if Tenant fails to
execute, acknowledge or deliver any such instruments within ten (10) days after
request therefor.
3. So long as Tenant (a) is not in default under the Lease beyond the
expiration of any applicable grace or cure periods, (b) has not canceled or
terminated the Lease (without regard to whether Owner or Tenant is then in
default under the Lease), nor surrendered the Leased Premises, and (c) except as
specifically required pursuant to the terms of the Lease, has not made any
advance payment of rent or additional rent, in the event that Mortgagee shall
commence an action to foreclose the Mortgage or to otherwise acquire title to,
and possession of, the Premises, Tenant shall not be
D-1
64
joined as a party defendant in any such action or proceeding and Tenant
shall not be disturbed in its possession of the Leased Premises nor shall the
Lease be terminated unless, as a condition precedent to commencing or proceeding
with any such action to foreclosure the Mortgage [or any of them] or to
otherwise acquire title to, and possession of, the Premises, Mortgagee is
required by statute, judicial decision or the court in which such action or
proceeding has been commenced or is pending so to name Tenant as a party
defendant. For the purposes of this Agreement, any rent abatements or free rent
periods expressly provided for in the Lease shall not be deemed to be an advance
payment of rent or additional rent.
4. If (a) Mortgagee shall acquire title to, and possession of, the Premises
upon foreclosure in an action in which Mortgagee shall have been required to
name Tenant as a party defendant, and (b) Tenant is not in default under the
Lease beyond any applicable cure or grace periods, has not canceled or
terminated the Lease (without regard to whether Owner or Tenant is then in
default under the lease) nor surrendered, vacated or abandoned the Leased
Premises and remains in actual possession of the Leased Premises at the time
Mortgagee shall so acquire title to, and possession of, the Premises, then, in
such event, Mortgagee shall enter into a new lease with Tenant upon the same
terms and conditions as were contained in the Lease, except that (x) the
obligations and liabilities of Mortgagee under any such new lease shall be
subject to the terms and conditions of this Agreement (including, without
limitation, the provisions of Paragraphs 5, 6, and 7 hereof), (y) without
limiting the generality of clause (x) above, Mortgagee shall, in no event, have
any obligations or liabilities to Tenant under any such new lease beyond those
of Owner (or its predecessors-in-interest) as were contained in the Lease (to
the extent assumed by Mortgagee under this Agreement), and (z) the expiration
date of such new lease shall coincide with the original expiration date of the
Lease. Tenant shall execute any such new lease and shall attorn to Mortgagee or
its nominee, successors or assigns or any purchaser (as the case may be) as to
establish direct privity between Mortgagee and Tenant.
5. If (a) Mortgagee shall acquire title to, and possession of, the
Premises upon foreclosure in an action in which Tenant has not been named as a
party defendant, or by deed in lieu of foreclosure, or by any other means and
(b) Tenant is not in default under the Lease beyond any applicable cure or grace
periods and Tenant has not surrendered the Leased Premises at the time Mortgagee
shall so acquire title to and possession of the Premises:
(i) Tenant shall be deemed to have made a full and complete attornment
to Mortgagee so as to establish direct privity between Mortgagee and
Tenant;
(ii) all obligations of Tenant under the Lease shall continue in full
force and effect and be enforceable against Tenant by Mortgagee, with the
same force and effect as if the Lease had originally been made and entered
into directly by and between Mortgagee, as landlord thereunder, and Tenant;
and
(iii) Mortgagee shall recognize and accept the rights of Tenant under
the Lease and, subject to the provisions of Paragraphs 6 and 7 hereof,
shall thereafter assume the obligations of Owner under the Lease in respect
of Owner's obligations under the Lease thereafter falling due subject, in
all events, to (A) the provisions of Paragraph 6 and 7 below and (B)
Tenant's waiver, as against Mortgagee, of any defaults of Owner (whether or
not curable) which occurred prior to Mortgagee acquiring title to, and
possession of, the Premises.
6. (a) Nothing herein contained shall impose any obligation upon Mortgagee
to perform any of the obligations of Owner under the Lease, unless and until
Mortgagee shall take possession of the Premises, and, in any event, Mortgagee
shall have no liability with respect to any acts or omissions of Owner occurring
prior to the date on which Mortgagee shall take possession of the Premises;
(b) Notwithstanding anything to the contrary contained herein, officers,
directors, shareholders, agents, servants and employees of Mortgagee shall have
not personal liability to Tenant and the liability of Mortgagee, in any event,
shall not exceed and shall be limited to Mortgagee's interest in the Premises;
D-2
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(c) Mortgagee shall not be liable for any act or omission of Owner (or,
its predecessor-in-interest);
(d) Mortgagee shall not be subject to any offsets or defenses which
Tenant might have against Owner;
(e) Mortgagee shall not be bound by any covenant to undertake or
complete any construction of the Premises, the Leased Premises or any portion
thereof;
(f) Mortgagee shall not be bound by any obligation of Owner to make any
payment to Tenant, except that (i) Mortgagee shall be liable for the timely
return of any security or other deposit actually received by Mortgagee and (ii)
Mortgagee shall be liable on account of any prepayments of rent or other charges
owing to Tenant if the funds are actually received by Mortgagee;
(g) Mortgagee shall not be bound by any obligation to repair, replace,
rebuild or restore the Premises, the Leased Premises, or any part thereof in the
event of damage by fire or other casualty, or in the event of partial
condemnation, beyond such repair, replacement, rebuilding or restoration as can
reasonably be accomplished with the use of the net insurance proceeds or the net
condemnation award actually received by or made available to Mortgagee; and
(h) Mortgagee shall not be required to remove any person occupying the
Leased Premises or any part thereof.
8. Tenant hereby agrees to provide Mortgagee with prompt notice of any
asserted default by Owner of its obligations under the Lease. In the event any
such asserted default constitutes a legal basis for the cancellation of the
Lease by Tenant, Tenant hereby agrees that the Lease shall not be canceled or
terminated until Mortgagee shall have a reasonable period of time within which
to (a) obtain possession of the Leased Premises, and (b) cure such default.
9. Tenant and Owner hereby agree that, in the event that Mortgagee delivers
to Tenant a notice (i) stating that an Event of Default (as defined in the
Mortgage [or any of them]) has occurred under the Mortgage [or any of them] or
any other Loan Document and (ii) requesting that all rent and additional rent
due under the Lease be thereafter paid to Mortgagee, Tenant shall pay, and is
hereby authorized and directed by Owner to pay, such rent and additional rent
directly to Mortgagee. Delivery to Tenant of the aforedescribed notice from
Mortgagee shall be conclusive evidence of the right of Mortgagee to receive such
rents and payment of the rents by Tenant to Mortgagee pursuant to such notice
shall constitute performance in full of Tenant's obligation under the Lease to
pay such rents to Owner. If and to the extent that the Lease or any provisions
of law shall entitle Tenant to notice of any mortgage, Tenant acknowledges and
agrees that this Agreement shall constitute such notice to Tenant of the
existence of the Mortgages. Tenant acknowledges that it has notice that the
Lease and the rent and all other sums due thereunder have been assigned to
Mortgagee as part of the security for the Loan Documents.
10. Each of Owner and Tenant represents and warrants to Mortgagee that, as
of the date hereof, there are no agreements other than the Lease in existence or
contemplated between Owner and Tenant, relating to the Premises or the Leased
Premises or with respect to any other matter related to Tenant's occupancy of
the Leased Premises.
11. Owner, by its execution of this Agreement, agrees to be bound by and to
act in accordance with the terms and conditions hereinabove contained.
12. This Agreement (i) shall be governed by and construed in accordance
with the laws of the state in which the Premises are located, (ii) contains the
entire agreement among the parties with respect to the subject matter hereof and
(iii) may not be modified, nor any provision hereof be waived, orally or in any
manner other than by an agreement in writing signed by the parties hereto or
their respective successors, administrators and assigns.
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00. All notices to be given hereunder shall be in writing and shall be
deemed sufficiently given if (a) hand delivered, (b) delivered by reputable
overnight courier or (c) mailed by certified mail, return receipt requested, in
each case to the address of each party as set forth above. Each such notice
shall be deemed to be effective, in the case of mail deliveries, on the second
business day after mailing, and otherwise, upon receipted delivery. Any party
may change its address for notice by notifying the other parties hereunder in
accordance with the provisions of this Paragraph 13.
14. All rights of Mortgagee hereunder shall accrue to, and all obligations
of Mortgagee shall be binding upon, Mortgagee, its successors, assigns and
nominees, including, without limitation, the grantee under a deed in lieu of
foreclosure and/or the purchaser of the Premises at a foreclosure sale or at any
sale of the Premises following the granting of a deed in lieu of foreclosure or
following foreclosure; provided, however, that following any sale or other
transfer of its interest in the Premises, Mortgagee, any such grantee or
purchaser (as the case may be) shall be fully released and discharged of and
from any and all obligations and liabilities of any kind hereunder or under the
Lease and/or under any such new lease. Without limiting the generality of the
foregoing, this Agreement shall be binding upon and inure to the benefit of the
successors, administrators and permitted assigns of Owner and Tenant hereto.
IN WITNESS WHEREOF, this Agreement has been executed as of the day and year
first above set forth.
OWNER: _______________________________________
By: __________________________________________
MORTGAGEE: ___________________________________
By: __________________________________________
TENANT: ______________________________________
By: __________________________________________
STATE OF ____________________ )
) ss.
COUNTY OF ___________________ )
On this ___ day of _________, 19 __, before me personally came ________, to
be known, who, being duly sworn, did depose and say that he resides
at ______________________________, that he is a ____________________________ of
___________________, a ______________________, the ________________ described
in, and which executed, the foregoing instrument; and that he signed his name
thereto by order of the _________ [board of directors] of said
__________________________.
IN WITNESS WHEREOF, I have hereunto set my hand this ___ day of ____, 19__.
My Commission Expires: __________________________________
___________________________________
Notary Public
D-4
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STATE OF _____________________ )
)ss.
COUNTY OF ____________________ )
On this ___ day of __________ , 19__ , before me personally came
___________, to be known, who, being duly sworn, did depose and say that he
resides at _______________ , that he is a __________________ of
__________________ , a ___________________ , the __________________
described in, and which executed, the foregoing instrument; and that he
signed his name thereto by order of the ___________________ [board of
directors] of said _________________________ .
IN WITNESS WHEREOF, I have hereunto set my hand this _____ day of
_________, 19__.
My Commission Expires: ________________________________________
________________________________________
Notary Public
STATE OF _____________________ )
)ss.
COUNTY OF ____________________ )
On this ___ day of ________ , 19__, before me personally came
_________________, to be known, who, being duly sworn, did depose and say
that he resides at _______________, that he is a _______________ of
_____________ , a _________________ , the ___________ described in, and
which executed, the foregoing instrument; and that he signed his name
thereto by order of the _____________________ [board of directors] of said
_____________________.
IN WITNESS WHEREOF, I have hereunto set my hand this ___ day of ____,
19__.
My Commission Expires: _______________________________
___________________________________
Notary Public
D-5
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EXHIBIT E
RULES AND REGULATIONS
It is further agreed that the following rules and regulations shall be and
are hereby made a part of this Lease and Tenant agrees that Tenant's employees
and agents or any others permitted by Tenant to occupy or enter the Premises
will at all times abide by these rules and regulations as they may be amended or
supplemented from time to time. Capitalized terms have the same meaning as used
in the Lease, unless otherwise indicated.
(1) The sidewalks, entries, passages, corridors, stairways, and elevators of
the Building Complex shall not be obstructed or locked or used for smoking,
storage or loitering by Tenant or Tenant's agents or employees or used for
any purpose other than ingress and egress to and from the Premises, it
being understood and agreed that such access may be obtained only via the
elevators (if any) in the lobby of the Building. The fire doors, including
those in the elevator lobbies, shall not be locked or obstructed by Tenant.
(2) Furniture, equipment, or supplies will be moved in or out of the Building
only upon the elevator (if any) and access ways designated by Landlord and
then only during such hours and in such manner as may be prescribed by
Landlord. The Landlord shall have the right to approve or disapprove the
movers or moving company employed by Tenant and Tenant shall cause the
movers to use only the loading facilities and elevator designated by
Landlord. In the event Tenant's movers damage the elevator or any part of
the Building, Tenant shall forthwith pay to Landlord the amount required to
repair that damage.
(3) No safe or article, the weight of which may, in the opinion of Landlord,
constitute a hazard or damage to the Building or the Building's equipment,
shall be moved into the Premises. Safes and other equipment, the weight of
which is not excessive, shall be moved into, from, or about the Building
only during such hours and in such manner as shall be prescribed by
Landlord and landlord shall have the right to designate the location of
such articles in the Premises.
(4) During the entire term of this Lease, Tenant shall, at Tenant's expense,
install and maintain under each and every caster chair a chair pad to
protect the carpeting.
(5) No sign, advertisement or notice shall be inscribed, painted, or affixed on
any part of the inside or outside of the Building (including windows)
unless of such color, size, and style and in such place upon or in the
Building as shall be first designated by Landlord in writing but there
shall be no obligation or duty on Landlord to allow any sign, advertisement
or notice to be inscribed, painted, or affixed on any part of the inside or
outside of the building. A directory in a conspicuous place, for listing
the names of tenants in the Building will be provided by Landlord. Any
necessary revision in the directory will be made by Landlord at Tenant's
expense within a reasonable time after notice from Tenant of the change
making the revision necessary. No furniture shall be placed in front of the
Building or in any lobby or corridor of the building (whether included
wholly within the Premises, or otherwise), without the prior written
consent of Landlord. Landlord shall have the right to remove all
non-permitted signs and furniture, without notice to Tenant, at the expense
of Tenant.
(6) Tenant shall not do or permit anything to be done in the Premises or bring
or keep anything therein which would in any way increase the rate of fire
insurance on the Building or on property kept therein which would in any
way increase the rate of fire insurance on the Building or on property kept
herein, constitute a nuisance or waste, obstruct or interfere with the
rights of other tenants or in any way injure or annoy them, or conflict
with the laws relating to fire or with any regulations of the fire
department, fire insurance underwriters, or with any insurance policy upon
the Building or any part thereof, or conflict with any of the rules or
ordinances of the Department of Health of the City and County where the
Building is located.
(7) The janitor of the building may at all times keep a passkey and other
agents of Landlord shall at all times be allowed admittance to the
Premises.
(8) Water closets and other water fixtures shall not be used for any purpose
other than that for which they were intended and any damage resulting to
them from misuse on the part of Tenant or Tenant's agents or employees
shall be paid for by Tenant. No person shall waste water by tying back or
wedging the faucets or in any other manner.
E-1
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(9) Except for handicapped assistance dogs, no animals shall be allowed in the
offices, halls, corridors, and elevators in the Building. No person shall
disturb the occupants of the Building or adjoining buildings or premises by
the use of any radio, sound equipment, or musical instrument or by the
making of loud or improper noises.
(10) Bicycles or other vehicles shall not be permitted in the offices, halls,
corridors, and elevators in the Building nor shall any obstruction of
sidewalks or entrances of the Building be permitted.
(11) Tenant shall not allow anything to be placed on the outside of the
building, nor shall anything be thrown by Tenant or Tenant's agents or
employees out of the windows or doors or down the corridors, elevator
shafts, or ventilating ducts or shafts of the Building. Tenant, except in
case of fire or other emergency, shall not open any outside window. Tenant
must at its own expense dispose of crates, boxes, or similar large items of
refuse which will not fit into office waste paper baskets. In no event
shall Tenant set any such items in the corridors or other areas of the
Building or garage facility.
(12) No additional lock or locks shall be placed by Tenant on any door in the
Building, unless written consent of Landlord shall first have been
obtained. Two keys to the Premises and the toilet rooms, if locked by
Landlord, will be furnished by Landlord and neither Tenant nor Tenant's
agents or employees shall have any duplicate keys made. Landlord shall
supply Tenant with such additional keys as Tenant may require at Tenant's
sole cost and expense. At the termination of this tenancy, Tenant shall
promptly return to Landlord all keys to offices, toilet rooms, or vaults.
(13) No window shades, blinds, screens, draperies, or other window coverings
will be attached or detached by Tenant without Landlord's prior written
consent. Tenant agrees to abide by Landlord's rules with respect to
maintaining uniform curtains, draperies and linings, or blinds at all
windows and hallways.
(14) If any Tenant desires telegraphic, telephonic, or other electric
connections, Landlord or Landlord's agents will direct the electricians as
to where and how the wires may be introduced. Without such directions, no
boring or cutting for wires will be permitted. Any such installation and
connection shall be made at Tenant's expense.
(15) Tenant shall not install or operate any steam or gas engine or boiler or
carry on any mechanical business in the Premises. The use of oil, gas, or
inflammable liquids for heating, lighting, or any other purpose is
expressly prohibited. Explosives or other articles deemed extra hazardous
shall not be brought into the Building.
(16) Any painting or decorating, as may be agreed to be done by and at the
expense of Landlord, shall be done during regular weekday working hours.
Should Tenant desire such work on Saturdays, Sundays, Legal Holidays, or
outside of regular working hours, Tenant shall pay for the extra cost
thereof.
(17) Except as permitted by Landlord, Tenant shall not xxxx upon, paint signs
upon, cut drill into, drive nails or screws into, or in any way deface the
walls, ceilings, partitions, or floors of the Premises or of the Building
and any defacement, damage, or injury caused by Tenant or Tenant's agents
or employees shall be paid for by Tenant.
(18) Smoking is prohibited in the Building, including all tenants' premises,
inside lobbies, stairwells, bathrooms, and other Common Areas and public
areas of the Building Complex and is restricted in all outside plaza areas
of the Building Complex to specific locations designated by Landlord as
smoking areas, if any.
(19) Tenant shall be entitled to two sets of keys to the Premises. In the event
Tenant needs any additional keys, such keys must be requested from
Landlord. Tenant shall pay to Landlord the actual cost of making such
additional keys. Landlord reserves the right to refuse admittance to the
Building at any time other than during Ordinary Business Hours, to any
person not producing a key to the Premises and/or a pass issued by
Landlord. In case of fire, invasion, riot, public excitement or other
commotion, Landlord also reserves the right to prevent access to the
Building while it continues. Landlord shall in no case be liable for
damages for the admission or exclusion of any person to or from the
Building.
(20) No canvassing, soliciting, distribution of hand bills or other written
material, or peddling shall be permitted in the Building on the Building
Complex, and Tenant shall cooperate with Landlord in prevention and
elimination of same.
X-0
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XXXXXXX X
LEASE COMMENCEMENT CERTIFICATE
LANDLORD: Fiddler's Green Center, LLC, a Delaware corporation
TENANT: Convergent Group Corporation, a Delaware corporation
This Lease Commencement Certificate is made by Landlord and Tenant pursuant
to that certain Office Lease (the "Lease") entered into as of _______________ ,
__________ , for the Leased Premises known as Suite 600, in the Building known
as Fiddler's Green Center building I, 0000 Xxxxx Xxxxxxx'x Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx 00000 (the "Premises"). This constitutes a supplementary
addendum to the Lease as contemplated by Article 4 of the Lease.
1. Lease Commencement Date. Landlord and Tenant acknowledge and agree that
the Lease Commencement Date, as contemplated by Article 4 of the Lease, is
_______________ , and the Lease Expiration Date is ________________,
___________________. Rent as contemplated by the Lease begins accruing to
Landlord's benefit as of __________________ , _________. All covenants in the
Lease contemplated to begin on the Lease Commencement Date shall commence as of
the Lease Commencement Date.
2. Acceptance of Premises. Tenant has inspected and examined the Premises,
and Tenant finds the Premises acceptable and satisfactory in all respects in
their current, "as is" condition, except for the "Punchlist Items" attached
hereto (if any). All of the work to be completed by Landlord, as contemplated by
the Lease and the Work Letter (attached as Exhibit C to the Lease), has been
fully completed and fulfilled. The attached list of Punchlist Items constitutes
all matters which Tenant does not find fully and completely acceptable, and as
to which Tenant desires Landlord to perform corrective work.
3. Incorporation in Lease. This Certificate is incorporated into the Lease,
and forms a supplementary and integral part thereof. This Certificate shall be
construed and interpreted in accordance with all other terms and provisions of
the Lease for all purposes.
"LANDLORD"
FIDDLER'S GREEN CENTER,
a Delaware limited liability company,
By: __________________________________________
As its: ______________________________________
"TENANT"
CONVERGENT GROUP CORPORATION,
a Delaware corporation
By: __________________________________________
As its: ______________________________________
Attest:
By: _______________________________
Title: ____________________________
F-1
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EXHIBIT G
HVAC SPECIFICATIONS
(See attached)
G-1
72
[M-E ENGINEERS, INC. LETTERHEAD]
FIDDLERS GREEN CENTER
MEMORANDUM
DATE: August 28, 1998
TO: Xxx Xxxxxxxxxx, Xxxxx Xxxx - X.X. Xxxxxxxx, X.X. Xxxxxxxx
FROM: Xxxxxxx Xxxx - ME Engineers
RE: System Cooling Capacity
-------------
Xxx and Xxxxx,
This list may serve as bullet items regarding cooling capacity for the subject
building:
The building shall be capable of cooling to 74 degrees within the space when
the outdoor conditions as high as 93 degrees dry bulb, 59 degrees wet bulb
(28 BTU/lb dry air) given the following conditions are met:
No individual tenant cooling to less than 74 degrees.
Maximum tenant space occupancy of 150 square feet per person.
Maximum 2.5 Xxxxx/sqft light heat dissipated throughout the building.
Maximum 2 Xxxxx/sqft electrical equipment heat dissipated throughout the
building.
Tenant space air flows must be properly selected and distributed.
Appropriate space zoning and thermostat location provided.
System balancing complete and correct.
Heating shall be provide to maintain 70 degrees within the space with an
outdoor temperature as low as 5 degrees below zero given the following
conditions:
No individual tenant heating to greater than 70 degrees.
Tenant space air flows must be properly selected and distributed.
Appropriate space zoning and thermostat location provided.
System balancing complete and correct.
Given these parameters, the rooftop equipment will have adequate capacity to
cool and heat the building.
Please call if you have any questions or need further clarification.
00
XXXXXXX X
XXXXXXXX XXXX
(See attached)
H-1
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[FIRST FLOOR PLAN]
75
EXHIBIT I
COMMISSION AGREEMENT
(See attached)
I-1
76
[CONVERGENT GROUP LETTERHEAD]
August 17, 1998
Xx. Xxxxx XxXxxx
Xxxx Xxxxxx Company
0000 Xxxxx Xxxxxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
Dear Xxxxx:
Attached please find a revised commission agreement with CoRE Partners, Inc.
The revisions include (1) changing the rate to $1.50 per foot, all of which
will go to CoRE Partners; (2) deferring the first half payment until all
contingencies in Article 38 of the least have been met or waived; and (3)
removing any requirement to be paid on square footage beyond that taken with
the initial premises.
Please let me know if this will be acceptable.
Sincerely,
Convergent Group
/s/ XXXXX X. XXXXXX
Xxxxx X. Xxxxxx
Vice President, Finance
Enclosure
77
[CONVERGENT GROUP LETTERHEAD]
August 17, 1998
Xx. Xxxxx XxXxxx
Xxxx Xxxxxx Company
0000 Xxxxx Xxxxxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
Dear Xxxxx:
Attached please find a revised commission agreement with CoRE Partners, Inc.
The revisions include (1) changing the rate to $1.50 per foot, all of which
will go to CoRE Partners; (2) deferring the first half payment until all
contingencies in Article 38 of the least have been met or waived; and (3)
removing any requirement to be paid on square footage beyond that taken with
the initial premises.
Please let me know if this will be acceptable.
Sincerely,
Convergent Group
/s/ XXXXX X. XXXXXX
Xxxxx X. Xxxxxx
Vice President, Finance
Enclosure
78
[iTRA/CoRE PARTNERS LETTERHEAD]
--------------------------------------------------------------------------------
Date: 3/14/98
Pages: 3
To: Xxxxx Xxxxxx C.P.A.
Fax Phone: 000-000-0000
From: Xxxx Xxxxxxxx
Subject: Revised Commission Agreement
Xxxxx,
I received your voice mail message. Thanks for the update.
Here is our commission agreement revised in the 3 areas you requested.
Best regards,
/s/ XXXX XXXXXXXX
79
COMMISSION AGREEMENT - LEASE
August 14, 1998
CoRE Partners, Inc.
0000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
RE: Proposed Lease Fiddlers Green Center, L.L.C., as Landlord, and
Convergent Group Corporation, as Tenant, of Fiddler's Green Center,
Englewood, Colorado.
Gentlemen:
This letter confirms our agreement that in the event of the consummation of the
above Lease, we shall pay to CoRE Partners, Inc. ("CPI") in consideration for
your brokerage services rendered, a brokerage commission calculated in
accordance with the applicable annexed Schedule.
It is expressly acknowledged and agreed that with respect to the above leasing
transaction: a) CPI is representing the Tenant: b) CPI is not acting as an agent
or sub-agent of the Landlord; and c) the Tenant has acknowledged that CPI will
be receiving its compensation from the Landlord.
If the foregoing accurately sets forth our agreement, kindly sign and return
the enclosed copy hereof.
Very truly yours,
Fiddler's Green Center, L.L.C.
By: /s/ XXXXX XXXXX
----------------------------
Title: Manager
-------------------------
AGREED TO
CoRE PARTNERS, INC.
By: /s/ XXXX X. XXXXXXXX
----------------------------
Xxxx X. Xxxxxxxx
Title: Managing Partner
80
CoRE PARTNERS, INC. (CPI)
SCHEDULE OF COMMISSIONS AND CONDITIONS
FOR OFFICE LEASE TRANSACTIONS - DENVER
1. RATES
$2.50 per rentable square foot for the primary room.
2. TIME OF PAYMENT
Fifty percent (50%) of the commission shall be paid within thirty (30) days
of the time of the execution and delivery of the lease by and between the
Landlord and Tenant and after all contingencies in Article 30 have been met
or waived. The balance of the commission shall be paid at the earlier of
the commencement of the lease term or occupancy.
3. MISCELLANEOUS
The Terms "Landlord" and "Tenant" shall be deemed to include any
subsidiaries, affiliates, successor, nominees or assigns of same.
In the event of a sale conveyance or other disposition of any portion of
the Landlord's interest in the property at which the lease is made, the
Landlord shall remain responsible to pay CPI the commissions due and which
may become due hereunder, unless Landlord shall obtain from the grantee of
its interest and deliver to CPI an agreement, in form and substance and
from a party reasonably acceptable to CPI, whereby the grantee assumes
Landlord's obligations hereunder.
AGREED TO:
Fiddler's Green Center, L.L.C. CoRE Partners, Inc.
By: /s/ XXXXX XXXXX /s/ XXXX X. XXXXXXXX
--------------------------- -----------------------------
Title: Manager Xxxx X. Xxxxxxxx, Managing Broker
81
FIRST AMENDMENT TO OFFICE LEASE
(FIDDLER'S GREEN CENTER I - CONVERGENT GROUP)
THIS FIRST AMENDMENT TO OFFICE LEASE ("Amendment") is made as of the 31
day of August, 1999, by and between FIDDLER'S GREEN CENTER, LLC, a Delaware
limited liability company ("Landlord"), and CONVERGENT GROUP CORPORATION, a
Delaware corporation ("Tenant").
RECITALS
WHEREAS, Landlord and Tenant entered into that certain Office Lease, dated
August 28, 1998 ("Lease"), pertaining to the lease of those certain premises
described as containing approximately 74,094 rentable square feet ("Premises")
in the building located at 0000 Xxxxx Xxxxxxx'x Xxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxxx, Xxxxxxxx 00000 ("Building").
WHEREAS, Landlord and Tenant desire to amend the provisions of the Lease
as set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS. All capitalized terms shall have the same meaning set
forth in the Lease unless otherwise provided herein.
2. REMEASUREMENT OF BUILDING. The parties acknowledge and agree that the
Building was remeasured and the "Building Rentable Area" defined in Paragraph
5.A(2) of the Lease is hereby revised to be 206,914 rentable square feet of
space. Accordingly, the primary Premises (the 5th and 6th floor portions of the
Premises) consist of a total of approximately 71,480 rentable square feet of
space. Further, the Distribution Space, as defined in Paragraph 32.A of the
Lease, consists of approximately 1,168 rentable square feet of space. Tenant
will not lease the Storage Space referenced in Paragraph 32.A of the Lease and
such Storage Space is deleted from the description of the Premises. Therefore,
the Premises now demised under the Lease consists of a total of approximately
72,648 rentable square feet of space (the "Premises"). Accordingly, the Lease is
modified as follows:
A. Certain provisions of the Basic Lease Term Sheet of the Lease
are hereby replaced in their entirety as follows:
BASE RENT: Payable in monthly installments as follows:
Space Period Monthly Annual Per Sq. Ft.
----- ------ ------- ------ ----------
Primary* Years 1-5 $145,938.33 $1,751,260.00 $24.50
Premises Years 6-10 $160,830.00 $1,929,960.00 $27.00
Distribution Space** Years 1-10 $2,141.33 $25,696.00 $22.00
* See Section 33 below
**See also Section 33 below
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BASE OPERATING
EXPENSES: Base Year: 2000
Tenant's Pro-Rata Share: 35.11%
PARKING SPACES: Number of Parking Spaces: 286 total (i.e., 4 per 1000
rentable square feet) of which (i) 143 spaced (i.e., 2 per
10000 rentable square feet) shall be provided as covered
spaces within the first phase of the parking garage to be
constructed on or before January 1, 2000 and the balance
shall be uncovered spaces; (ii) 50% of the covered parking
spaces shall be designated for Tenant's use and selected by
Tenant on a first-choice basis in the south half of the
ground level of the Phase I parking structure and the
balance will be first-come, first-served; and (iii) up to 71
of the 143 uncovered parking spaces may, at the Landlord's
option, be located on the roof of the parking structure;
provided, however, to the extent the first phase of the
parking structure is not completed on or before January 1,
2000 (said date to be extended as a result of Excused
Delays, as defined in the Work Letter) and as a result, the
143 covered spaces are not available for Tenant's use in the
parking structure on or before such date (as the same may be
extended), then Tenant shall be entitled to a one day's Base
Rent abatement for each day that such covered parking spaces
are not completed. Further, Landlord agrees that Landlord
shall use the best efforts to arrange with the owner of the
Plaza Tower One building to lease, at Landlord's sole cost
and expense, 7 covered parking spaces (on a month-to-month,
non-designated/first-come, first-served basis) for Tenant's
use, starting on the Commencement Date through the date
Phase I of the parking garage is complete ("PTO Parking
Spaces"). If Landlord is unable to arrange for such PTO
Parking Spaces, Tenant may elect to make such arrangements
itself and, if so, Landlord agrees to credit the costs
thereof (not to exceed comparable market monthly covered
parking charges) to the Base Rent hereunder. Tenant shall
pay to Landlord monthly parking charges in the amount of
$66.05 per month for the first 143 covered parking spaces
for the initial Term, subject to adjustment thereafter.
Tenant shall be solely responsible for strictly monitoring
its employees use of the parking garage and insuring that
its employees or other designated parkers do not park in
spaces reserved for other tenants or exceed the total number
of covered parking spaces allocated to Tenant hereunder,
from time to time. Any failure by Tenant to adequately
monitor said parking usage shall, upon notice and expiration
of applicable cure period, for a non-monetary default, be
deemed a default hereunder, allowing Landlord to exercise
its rights and remedies hereunder, including, in this case,
limiting the daily access of Tenant's employees to no more
than the total number of covered parking spaces then
allocated to Tenant and/or terminating card access
capability to all but a total number of Tenant's employees
equal to the total number of covered parking spaces then
allocated to Tenant.
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Visitor Parking Spaces: A minimum of ten (10) parking spaces
designated as general visitor spaces shall be situated near
the Building's entrance.
B. References to $105,141.00 in Paragraph 30 of the Lease as the
Moving Allowance is amended to $107,220.00.
C. References in the Lease to $16,270.00 as the Landlord's Allowance
for the Distribution Space is amended to $19,003.36.
3. PREMISES EXPANSION.
A. PHASE TWO EXPANSION. The parties hereby acknowledge and agree
that the Premises shall be expanded by the addition, on the same terms and
conditions as set forth in the Lease except as otherwise provided in this
Paragraph, of a minimum of 12,000 rentable square feet and a maximum of 20,000
rentable square feet in the Building, in a location, total square footage and
configuration as determined by Landlord, in its sole discretion ("Phase Two
Expansion"); provided, however, that said Phase Two Expansion must be
contiguous space.
B. NOTICE. On or before July 1, 2000 Landlord shall notify Tenant
of the precise location and configuration of the Phase Two Expansion. The term
for the Phase Two Expansion shall commence on October 1, 2000 unless Tenant
elects, at its discretion, to give Landlord written notice of its desire to
occupy the Phase Two Expansion prior to October 1, 2000. If Tenant so
notifies Landlord prior to July 1, 2000, then within 10 days following Tenant's
notice to Landlord, Landlord shall notify Tenant of the then available Phase
Two Expansion location, the total rentable square footage and estimated early
commencement date of the Phase Two Expansion. In such case, upon completion of
tenant improvements, Tenant may occupy said Phase Two Expansion prior to
October 1, 2000; provided, however, that in the case of such early occupancy
Tenant's obligation to pay Base Rent shall be forgiven and Tenant shall only be
required to pay its additional Tenant's Pro Rata Share of Operating Expenses
for the Phase Two Expansion until October 1, 2000, whereupon Base Rent shall
commence.
C. EXPANSION AMENDMENT. After determination of the Phase Two
Expansion, Landlord and Tenant shall enter into an amendment ("Expansion
Amendment") of this Lease acceptable to Landlord. Such Expansion Amendment
shall provide that from and after the applicable date on which the Expansion
Space is demised to Tenant on the date which shall mean the earlier of (i) in
the event of an early occupancy by Tenant, as herein above provided, the date
the Phase Two Expansion is Ready for Tenant or (ii) October 1, 2000 ("Expansion
Space Commencement Date"), this Lease shall be deemed modified as follows:
(1) The term "Premises" shall be deemed to include the Phase
Two Expansion;
(2) The term of the Phase Two Expansion shall commence upon the
Expansion Space Commencement Date, as herein above defined, and shall expire on
the Lease Expiration Date, as the same may be extended;
(3) The Base Rent shall be increased by an amount determined
by multiplying the number of rentable square feet in the Phase Two Expansion
times the Base Rent rate for the primary Premises on the per square footage
rate, as provided in Part 1 of the Lease.
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(4) Tenant's Pro Rata Share shall be increased by a percentage equal to
the actual number of rentable square feet in the Phase Two Expansion divided by
the number of rentable square feet in the Building;
(5) The Base Year for the Phase Two Expansion shall be the Base Year
for the primary Premises.
(6) Tenant Finish Work in the Phase Two Expansion shall be installed
pursuant to a Work Letter for the Phase Two Expansion Space attached to the
Expansion Amendment and substantially similar to the Work Letter attached to
the Lease and the term of the Phase Two Expansion shall commence on the
Expansion Space Commencement Date. Said Work Letter is to provide that Landlord
shall contribute to the planning and construction of the installation of
alterations and improvements to such Phase Two Expansion in an amount equal to
the lesser of (i) $26.50 per rentable square foot of the Phase Two
Expansion, or (ii) the actual cost and expense of such initial alterations and
improvements ("Expansion Space Allowance"). All such Phase Two Expansion
Allowance to be used for the design and construction of the tenant
improvements within the Expansion Space, and for no other purpose whatsoever;
and
(7) The number of Parking Spaces shall be increased by 4 per 1000
rentable square feet within the Phase Two Expansion; provided, that the monthly
charge for additional covered parking spaces (based on the 2 per 1000 rentable
square foot ratio also set forth above) shall equal $75.00 per covered space
throughout the initial Term, subject to adjustment thereafter.
Other than the modifications set forth herein, the terms and conditions hereof
shall govern Tenant's lease of the Phase Two Expansion.
D. AMENDMENT. Landlord shall cause such Expansion Amendment to be
prepared and delivered to Tenant as soon as reasonably possible following
determination of the Phase Two Expansion. In the event that Amendment is not
executed by Tenant within 10 days after receipt by Tenant, then Tenant's rights
under this Paragraph shall be null and void, Tenant shall be deemed to have
waived its right under this Paragraph and Landlord shall have the absolute right
to lease such Phase Two Expansion. Notwithstanding the terms of this Paragraph,
Landlord shall not be obligated to deliver possession of the Phase Two Expansion
Space to Tenant if, prior to delivery of possession of the Phase Two Expansion,
Tenant shall be in default hereunder beyond any applicable notice and grace
period, in which event the provisions of this Paragraph shall terminate and be
of no further force or effect.
E. NOT TRANSFERABLE. In the event of an assignment of the Lease or
subletting (other than an assignment to or subletting of the entire Premises by
a Related Corporation) or vacation of more than 25% of the Premises (other than
an assignment to or subletting of the entire Premises by a Related Corporation),
Tenant's rights hereunder are null and void. Further, the right granted in this
Paragraph is personal to Tenant, is not assignable (other than Related
Corporation assignee) and may not be exercised by any sublessee or assignee of
Tenant (other than to a Related Corporation), regardless of whether the
sublessee or assignee has been approved by Landlord.
5. EXPANSION OPTION AND ADDITIONAL EXPANSION SPACE. The parties hereby
acknowledge and agree that Paragraph 34 of the Lease entitled "Expansion
Option" is hereby replaced in its entirety with the following:
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34. EXPANSION OPTION.
A. Expansion Space. Subject to the provisions hereinafter set forth,
Landlord grants to Tenant an option ("Expansion Option") to lease an additional
approximately 15,483 rentable square feet of space ("Expansion Space"), on the
same terms and conditions as set forth in this Lease, except as otherwise
provided in this Paragraph. It is understood and agreed that the Expansion Space
shall consist of Suites 101, 102 and 103 of the Building; provided, however,
upon commencement of construction of a second office building in the Building
Complex, which commencement shall be at Landlord's sole election ("Building
Two"), if Landlord so determines, again at Landlord's sole election, the
Expansion Space shall thereafter be space located on a floor or floors and in a
configuration in Building Two as determined by Landlord. It is further
understood and agreed that if the Expansion Space is so located in Building Two
it may be comprised of multiple suites which are not contiguous to one another,
and that the suites so comprising the Expansion Space in Building Two will be
provided to Tenant only in their then existing demised rentable square foot
increments.
B. Exercise Notice. Tenant may exercise the Expansion Option by giving
Landlord written notice ("Exercise Notice") of its desire to lease the
Expansion Space. Such Exercise Notice must be received by Landlord on or before
the last day of the 48th month of the initial Term. If the Exercise Notice is
not received in the required time period, then the Expansion Option shall be
deemed null, void and of no further force or effect. Within 30 days following
Tenant's Exercise Notice to Landlord, Landlord shall notify Tenant of (i) the
location and precise suite numbers of the Expansion Space, if located in
Building Two; and (ii) the estimated commencement date of the Expansion Space
suites based such Expansion Space's suite's existing expiration date(s) for the
lease terms of suites within the Expansion Space (either in the Building or in
Building Two); provided, that, Landlord agrees that all expiration dates for
the lease terms of suites within the Expansion Space shall not exceed the last
day of the 72nd month of the initial Term hereunders.
C. Expansion Amendment. After receipt of an Exercise Notice, Landlord
and Tenant shall enter into an amendment ("Expansion Amendment") of this Lease
acceptable to Landlord. Such Expansion Amendment shall provide that from and
after the applicable date on which the Expansion Space is demised to Tenant on
the date which is the earlier of (i) the date the Expansion Space, or any
portion thereof, is Ready for Tenant (each an "Expansion Space Commencement
Date"), this Lease shall be deemed modified as follows:
(1) The term "Premises" shall be deemed to include the Expansion Space;
(2) The term of the Expansion Space shall commence upon the Expansion
Space Commencement Date, as herein defined, and shall expire on the Lease
Expiration Date, as the same may be extended;
(3) The Base Rent shall be increased by an amount determined by
multiplying 15,483 rentable square feet of Expansion Space times 95% of the
Market Rate determined as provided in Paragraphs 37.B, C and D below, in effect
during the Term, but in no event less than the Rent payable for the primary
Premises, and said Market Rate determination shall be adjusted to reflect the
number of months remaining in the initial Term following the Expansion Space
Commencement Date.
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(4) Tenant's Pro Rata Share shall be increased by a percentage equal to
15,483 rentable square feet of Expansion Space divided by the number of rentable
square feet in the Building or Building Two, as applicable;
(5) The Base Year for the Expansion Space shall be the calendar year
in which the Commencement Date term for the Expansion Space begins and adjusted
pursuant to the provisions of the last sentence of Paragraph 5.B in the Lease;
(6) Tenant Finish Work in the Expansion Space shall be installed
pursuant to a Work Letter for the Expansion Space attached to the Expansion
Amendment and the term of the Expansion Space shall commence on the date the
Expansion Space is Ready for Tenant ("Expansion Space Commencement Date"). Said
Work Letter is to provide that Landlord shall contribute to the planning and
construction of the installation of alterations and improvements to such
Expansion Space in an amount equal to the lesser of (i) the Landlord
contribution allowance utilized in determining Market Rate for the Expansion
Space, or (ii) the actual cost and expense of such initial alterations and
improvements ("Expansion Space Allowance"). All such Expansion Space Allowance
to be used for tenant improvements within the Expansion Space, and for no other
purpose whatsoever; provided, however, Landlord shall, at its sole cost and
expense, pay for all demolition expenses, mechanical systems, ceiling grid, tile
and lights associated with the Expansion Space; and
(7) The number of Parking Spaces shall be increased pursuant to the
parking ratios set forth in Part 1 above; provided that additional covered
spaces (based on the 2 per 1000 rentable square feet ratio also set forth
above) shall be available at the then current monthly parking rate.
Other than the modifications set forth herein, the terms and conditions hereof
shall govern Tenant's lease of the Expansion Space.
D. Amendment. Landlord shall cause such Expansion Amendment to be
prepared and delivered to Tenant as soon as reasonably possible following its
receipt of Tenant's Exercise Notice and the determination of Base Rent. In the
event that Amendment is not executed by Tenant within 10 days after receipt by
Tenant, then Tenant's rights under this Paragraph shall be null and void,
Tenant shall be deemed to have waived its right under this Paragraph with
respect to the then applicable Expansion Space and Landlord shall have the
absolute right to lease such Expansion Space to any other person or entity.
Notwithstanding Tenant's exercise of its ability to request to lease the
Expansion Space pursuant to the terms of this Paragraph, Landlord shall not
be obligated to deliver possession of the then Expansion Space to Tenant if,
prior to delivery of possession of the Expansion Space, Tenant shall be in
default hereunder beyond any applicable notice and grace period, in which
event the provisions of this Paragraph shall terminate and be of no further
force or effect.
E. Not Transferable. In the event of an assignment of the Lease or
subletting (other than an assignment to or subletting of the entire Premises by
a Related Corporation) or vacation of more than 25% of the Premises (other than
an assignment to or subletting of the entire Premises by a Related Corporation),
Tenant's rights hereunder are null and void. Further, the right granted in this
Paragraph is personal to Tenant, is not assignable (other than Related
Corporation
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assignee) and may not be exercised by any sublessee or assignee of Tenant (other
than to a Related Corporation), regardless of whether the sublessee or assignee
has been approved by Landlord.
F. No Default. Tenant may exercise the Expansion Option, and an exercise
thereof shall only be effective, provided that at the time of Tenant's
exercise of the Expansion Option and on the Expansion Space Commencement Date
(i) this Lease is in full force and effect, (ii) Tenant is not in Default
following any applicable cure period hereunder, and (iii) no event has occurred
which, with the giving of any applicable notice or passage of time, would
constitute a Default.
6. ADDITIONAL EXPANSION SPACE. The parties herby acknowledge and agree
that Paragraph 35 of the Lease entitled "Tenant's Ability to Request Additional
Expansion Space" shall hereby be deemed modified such that, notwithstanding
anything to the contrary contained in said Paragraphs 35 or elsewhere in the
Lease, at Landlord's option the Additional Expansion Space(s), as defined in
Paragraph 35, may be located in additional buildings constructed by Landlord,
at its sole election, as part of the Building Complex.
7. TENANT IMPROVEMENT AGREEMENT. The parties hereby agree that Paragraph 3
of the Tenant Improvement Agreement attached to the Lease as Exhibit C, shall
be deemed modified by the deletion of the third sentence of said paragraph,
such that the Tenant shall not be obligated to repay the Excess Allowance to
Landlord.
8. RATIFICATION. Except as expressly modified by this Amendment, all other
terms and conditions of the Lease are hereby ratified and affirmed.
9. VALIDITY OF LEASE. The parties acknowledge that the Lease is a valid
and enforceable agreement and, as of the date hereof, neither party has any
actual knowledge of any claim against the other party or its agents which might
serve as the basis of any other set-off against accruing rent and other charges
or any other remedy at law or in equity.
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IN WITNESS WHEREOF, Landlord and Tenant have respectively executed
this Amendment as of the date and first year above written.
LANDLORD
FIDDLER'S GREEN CENTER, LLC, a Delaware
limited liability company
By: /s/ XXXXX X. XXXXX
------------------------------------
Name: Xxxxx X. Xxxxx
----------------------------------
Title: Managing Member
---------------------------------
TENANT
CONVERGENT GROUP CORPORATION, a
Delaware corporation
By: /s/ XXXXX X. XXXXXXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
----------------------------------
Title: CEO
---------------------------------
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