Exhibit 10.30
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "Agreement") is dated as of
December 16, 2002 and is made by and between NORDSTROM CREDIT, INC., a Colorado
corporation ("Seller") and XXXX-XXXXXX ASSOCIATES, LLC, an Illinois limited
liability company, and its assigns ("Purchaser")
SUMMARY OF TERMS:
Seller Information: Purchaser Information:
Nordstrom Credit, Inc. Xxxx-Xxxxxx Associates, LLC
0000 0xx Xxxxxx c/o Marc Realty
Suite 1000 000 Xxxx Xxxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000 Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxx Attn: Xxxxxx Xxxx
Fax: 000-000-0000 Fax: 000-000-0000
Seller's Attorney: Purchaser's Attorney:
Xxxx Xxxxxxxx Levenfeld Xxxxxxxxxx
0000 0xx Xxxxxx 00 Xxxx Xxxxxx Street, 21st Floor
Suite 1000 Chicago, Illinois 60603
Xxxxxxx, XX 00000 Attn: Xxxxxx X. Xxxxx
Fax: 000-000-0000 Fax: 000-000-0000
Project Description and Address: Approximately 110,000 square foot office
building with parking and related improvements located at 00000 Xxxx Xxxxx
Xxxxxx in Cherry Creek Business Center, Centennial, Colorado.
"Premises" shall mean collectively: (a) the land described in EXHIBIT A attached
to this Agreement ("Land") along with all rights, benefits, privileges,
easements, tenements, hereditaments, rights-of-way and other appurtenances
thereon or in any way appertaining thereto ( including all mineral rights,
development rights, air rights relating to the Land that are owned by Seller);
(b) the office building described above and all other improvements on or to the
Land (collectively, "Improvements"); (c) all plumbing, heating, cooling,
electrical and other building operation systems and fixtures forming a part of
the Improvements (the "Fixtures"); excluding, however: (i) trade fixtures and
other personal property owned by the "Tenant" (as defined herein) and (ii)
personal property of the Seller of FSB (defined below) located at the Land which
are not integral to the operation of the Improvements or any building systems or
Fixtures; and (d) any warranties and other intangible assets or property
pertaining, appurtenant or relating to the Land or Improvements (collectively,
"Additional Property").
"Purchase Price": $20,000,000.00 Xxxxxxx Money: See Section 2.1
"Closing Date": A date mutually agreed "Contingency Termination Date":
on between Purchaser and Seller, but
not later than December 31, 2002 December 19, 2002
Seller's Broker: "Title Company/Escrow Agent":
Eastdil Realty Company, L.L.C. Chicago Title Insurance Company
000 Xxxxxxxxxx Xxxxxx, 00xx Floor 000 Xxxxx Xxxxxxx Xxxxxx
Xxxx Xxxxxxxxx, XX 9411 Suite 3305
Attn: Xxxxxxxxxxx Xxxx Xxx Xxxxxxx, XX 00000
Fax: 000-000-0000 Escrow Officer: Xxxxx Xxxxx
Fax: (000) 000-0000
Seller and Purchaser agree as follows:
1. PURCHASE AND SALE.
1.1. Purchase and Sale. Seller shall sell to Purchaser, and
Purchaser shall purchase from Seller, the Premises strictly in accordance with
and subject to the terms, conditions, and provisions hereinafter set forth.
1.2. Purchase Price. The price to be paid by Purchaser to Seller
for the Premises shall be the Purchase Price.
2. PAYMENT TERMS.
2.1. Xxxxxxx Money. Prior to the date hereof, Purchaser has
deposited with the Escrow Agent, as escrow agent, the sum of $250,000, as
xxxxxxx money (said amount, together with the additional xxxxxxx money deposit
described below, and all interest accruing thereon, being herein referred to
collectively as the "Xxxxxxx Money"). Provided that Purchaser has not terminated
this Agreement pursuant to subsection 3.1(a) below, within three (3) business
days after the Contingency Termination Date, Purchaser shall increase the
Xxxxxxx Money to $500,000 by depositing with the Escrow Agent an additional
$250,000. The Xxxxxxx Money shall be held by Escrow Agent for the mutual benefit
of the parties hereto pursuant to the provisions of Escrow Agent's standard
joint order escrow instructions modified, however, to provide that the Xxxxxxx
Money (and all interest thereon) shall be returned to Purchaser upon Purchaser's
unilateral direction to Escrow Agent in the event that Purchaser terminates this
Agreement in accordance with Section 3 below. All interest and earnings from the
Xxxxxxx Money shall accrue for the benefit of Purchaser and shall become part of
the Xxxxxxx Money, to be distributed to Purchaser or Seller as provided in other
provisions of this Agreement.
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2.2. Balance of Purchase Price. Provided that all conditions
precedent to Purchaser's obligations set forth herein are satisfied and Seller
has performed all of its obligations hereunder, the Xxxxxxx Money and the
balance of Purchase Price, plus or minus prorations, shall be paid to Seller by
certified or cashier's check or by wire transfer at Closing.
3. PURCHASER'S CONDITIONS.
3.1. Due Diligence Investigation.
(a) Purchaser, its agents, engineers, employees, attorneys,
accountants, lenders, investors, contractors and surveyors shall have the right
to conduct all tests, inspections, feasibility and other studies and all other
investigations concerning the Premises that Purchaser requires (including,
without limitation, environmental tests and assessments, interviews, inspection
of the physical condition of the Premises, investigation of zoning and other
legal requirements, and review of financial information concerning the Premises)
to determine whether the Premises are satisfactory to Purchaser. All such tests
shall be scheduled in advance with Seller and performed in a manner that will
not interfere with the performance of Seller's business at the Premises. In
connection therewith, within five (5) days after the date hereof, Seller shall
deliver to, or make available to, Purchaser, complete, legible copies of the
items described in EXHIBIT B to this Agreement. If Purchaser, in it sole and
absolute discretion, is dissatisfied with the Premises based on the tests,
inspections, studies, investigations and review of documents described above, or
for any other reason whatsoever, then Purchaser may terminate this Agreement by
giving written notice to Seller of such termination at any time on or prior to
the Contingency Termination Date. Upon the termination of this Agreement
pursuant to this subsection (a), the Xxxxxxx Money, and all interest earned
thereon, shall be returned to Purchaser and neither party shall have any further
obligations or liabilities hereunder.
(b) Purchaser shall promptly repair any physical damage to the
Premises caused by the testing and inspections conducted by Purchaser pursuant
to this Section 3.1(a) (collectively, the "Tests") and shall promptly remove or
bond or insure over any mechanics' liens arising from the work performed to
complete the Tests. Purchaser further agrees to keep the results of the Tests
confidential, except to the extent that disclosure may be required by law or
other governmental requirement or may be reasonably required to be made to
Purchaser's attorneys, lenders, investors, consultants, accountants or other
advisors or agents in connection with the purchase, ownership or operation of
the Premises by Purchaser. Purchaser shall indemnify, defend and hold Seller
harmless from and against any loss, cost or damage (including reasonable
attorneys' fees, but excluding incidental or consequential damages) resulting
from Purchaser's failure to comply with its obligations set forth in this
subsection (b).
3.2. Title Review. (a) No later than December 12, 2002, Seller
shall, at Seller's expense (and billed directly to Seller), deliver to Purchaser
(i) a title commitment (the "Commitment") for an ALTA owner's title insurance
policy issued by the Title Company covering the Premises, (ii) copies of all
documents described in the Commitment, and (iii) an ALTA/ACSM 1999urban plat of
survey of the Premises dated after December 1, 2002, prepared with Purchaser's
Table A Items 1-4, 6-11, 13-17 and certified to Purchaser, the Title Company and
such other parties as Purchaser may request (the "Survey").
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(b) Prior to the Contingency Termination Date, Purchaser shall
notify Seller (the "Objection Notice") which of the liens, encumbrances and
other matters described in the Commitment or on the Survey are unacceptable to
Purchaser (the "Unpermitted Matters"), and Seller shall then have until the
Closing Date to remove such Unpermitted Matters or remedy same in a manner
satisfactory to Purchaser. The matters in the Commitment that are not
Unpermitted Matters shall be "Permitted Exceptions." The Objection Notice shall
also specify what title endorsements Purchaser will require (the "Required
Endorsements"). If Seller is unable to remove any such Unpermitted Matters or
remedy same in a manner satisfactory to Purchaser, or cause the Title Company to
issue the Required Endorsements, all within the time period described above,
Purchaser shall have the options of (i) proceeding with this Agreement or (ii)
terminating this Agreement, in which event the Xxxxxxx Money, and all interest
earned thereon, shall be returned to Purchaser and neither party shall have any
further obligations or liabilities hereunder. Purchaser shall exercise one of
its options set forth in clause (i) or (ii) above by providing written notice
thereof to Seller on or before the Closing Date, and, if Purchaser fails to
provide such notice within such time, then Purchaser shall be deemed to have
elected to proceed in accordance with clause (i).
(c) At the Closing, and as a further condition of Purchaser's
performance of its obligations hereunder, Seller shall cause the Title Company
to deliver to Purchaser an owner's title policy or an irrevocable commitment to
issue a title policy (the "Title Policy") issued in accordance with the
provisions of the Commitment as specified above: (i) naming Purchaser as the
insured owner of the Premises, (ii) dated as of the date of recording of the
deed conveying title to the Premises from Seller to Purchaser, (iii) in the
amount of the Purchase Price, (iv) containing only the Permitted Exceptions, and
(v) containing the Required Endorsements.
(d) Notwithstanding anything to the contrary set forth herein,
Purchaser shall have the right to review and approve (prior to recording) the
form of "Conduit Easement" and the "Switch Easement" (as defined herein) as
prepared by Seller, such approval not to be unreasonably withheld by Purchaser.
The exact location of those easement areas shall be plotted on the Survey.
3.3. Additional Conditions. In addition to the other conditions set
forth herein, Purchaser's obligation to acquire the Premises and consummate the
other transactions contemplated hereunder shall be conditioned on:
(a) all representations and warranties of Seller being true and
correct in all respects as of the Closing;
(b) there being no breach or default by Seller of any of its other
covenants, agreements, duties or obligations hereunder; and
(c) no event or circumstances exists at Closing that may
materially adversely affect the Premises, or the use, occupancy or financial
condition thereof, as determined by Purchaser.
4. CLOSING.
4.1. Closing Date. Subject to the provisions of Section 3 of this
Agreement and any other applicable provisions hereof, the sale of the Premises
to Purchaser and the other transactions described herein shall be consummated
(the "Closing") on the Closing Date. The Closing shall take place at the office
of the Escrow Agent through an escrow created under an escrow agreement mutually
satisfactory to Purchaser and Seller, in their reasonable discretion, including
provisions for
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a so-called "New York style" closing to facilitate delivery to Purchaser of the
Title Policy and possession of the Premises on the Closing Date.
4.2. Closing Documents and Delivery of Possession.
(a) Seller Deliveries. In addition to the Title Policy to be
provided under Section 3, Seller shall deliver to Purchaser at Closing, in form
and substance reasonably acceptable to Purchaser, the Closing Documents
described in EXHIBIT C attached to this Agreement.
(b) Purchaser Deliveries. Purchaser shall deliver to Seller at
Closing the balance of the Purchase Price, plus or minus prorations, together
with such documents reasonably required by the Title Company to issue the Title
Policy and close the purchase by Purchaser of the Premises.
(c) Joint Deliveries. Seller and Purchaser shall jointly deliver
(i) the lease between Purchaser, as landlord, and Nordstrom, Inc., a Washington
corporation (the "Tenant"), as tenant, in the form of EXHIBIT D attached hereto
(the "Lease"), along with any certificates or documents required from the Tenant
pursuant to the Lease as of the commencement of the Lease, (ii) a closing
statement and (iii) all required real estate transfer tax declarations, returns
or affidavits.
(d) Delivery of Possession. Possession of the Premises (subject to
the rights of Tenant under the Lease) shall be given by Seller to Purchaser at
the time of Closing.
(e) Tenant Deliveries. In the event that any Closing Document or
other agreements is required from Tenant in order to consummate the terms of
this Agreement, it shall be the responsibility of Seller to obtain Tenant's
signature on such Closing Documents and to provide such documents at Closing. Is
shall be a default by Seller if the Tenant shall so fail to deliver any of the
Closing Documents or other documents required hereunder.
5. PRORATIONS.
5.1. Real Estate Taxes and Assessments. Proration of real estate
taxes and assessments shall not be required as all such amounts levied or
accrued prior to Closing shall be Tenant's obligation under the Lease.
5.2. Operating and Utility Costs. Seller shall pay all expenses
necessary to repair, operate and maintain the Premises accrued up to and
including the Closing Date, as the owner of the Premises. Any and all such
expenses accruing subsequent to the Closing Date shall be paid by Tenant in
accordance with the provisions of the Lease.
5.3. Miscellaneous. All other items which are customarily prorated
in transactions similar to the transaction contemplated hereunder and which are
not otherwise addressed in this Agreement, will be prorated as of the Closing
Date.
6. CLOSING COSTS.
Purchaser shall pay the following expenses incurred in connection with
the transactions described herein: (a) one-half of all closing fees charged by
the Escrow Agent, (b) Purchaser's legal fees and expenses, and (c) all costs of
Purchaser's financing, if any. Seller shall pay all of the other closing costs
and expenses incurred in connection with the transactions described herein,
including,
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without limitation: (i) the costs of the Commitment, the Title Policy (including
extended coverage and other endorsements), and the Survey, (ii) one-half of all
closing fees charged by the Escrow Agent, (iii) Seller's legal fees and expenses
and all commissions due to Seller's Broker, and (iv) all recording fees,
transfer taxes and documentary stamp taxes.
7. REAL ESTATE COMMISSIONS.
Each party represents and warrants to the other that, except for the
Seller's Broker, no person or entity acting as real estate broker, finder or
real estate agent brought about this Agreement or the Lease. Seller shall pay
all fees and commissions owed to the Seller's Broker. Seller represents that
there shall be no fees or commissions owed to Seller's Broker on account of the
Lease, or the Tenant's exercise of any renewal option or other rights under the
Lease. Seller agrees to and does hereby indemnify Purchaser from all loss,
damage, cost, or expense (including attorneys' fees) that Purchaser may suffer
as a result of any claim or action brought by the Seller's Broker or any other
person or entity acting or allegedly acting on behalf of Seller in connection
with this transaction or the Lease, and Purchaser agrees to and does hereby
indemnify and hold Seller harmless from all loss, damage, cost, or expense
(including attorneys' fees) that Seller may suffer as a result of any claim or
action brought by any person or entity (other than the Seller's Broker) acting
or allegedly acting on behalf of Purchaser in connection with this transaction
or the Lease.
8. REPRESENTATIONS, WARRANTIES AND COVENANTS.
8.1. Seller's Representations. Seller represents and warrants to
Purchaser as follows, all of which representations and warranties shall be
deemed remade as of the Closing Date:
(a) Seller has no knowledge and has received no notice of any
litigation, claim, demand, damage, action, or cause of action of any person,
entity or governmental agency or instrumentality affecting the Premises. To the
best of Seller's knowledge, the Premises is not in violation of any law,
ordinance, code or regulation. To the best of Seller's knowledge, the Premises
is not in violation or breach of any of the covenants, conditions, restrictions
or other agreements affecting the Premises
(b) To the best of Seller's knowledge: (a) no toxic or hazardous
waste or hazardous substance or other pollutant or contaminant or any other
substance which is in violation of any state, federal or local law, regulation
or ordinance is contained within or located at or under the Premises; (b) there
are no underground storage tanks located under the Land; and (c) no portion of
the Premises is located in an area that has been designated a wetlands or other
environmental protection area.
(c) Seller has no knowledge of and has received no notice
concerning any: (i) proposed special assessments or similar taxes, charges or
assessments against the Premises: (ii) utility service moratoriums or other
moratoriums affecting the Premises; (iii) pending or threatened condemnation
actions affecting the Premises, (iv) pending or threatened change in the zoning
classification of the Land or Improvements; (iv) pending or threatened boundary
disputes with any adjoining landowner respecting the Premises; or (v) pending or
threatened disputes relating to or impairments of access to and from the
Premises.
(d) Except for the documents described in EXHIBIT E (collectively,
the "Property Documents"), there are no service contracts, equipment leases,
development agreements,
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construction contracts, leases or occupancy agreements affecting the
Premises (other than the Lease to be entered into at the Closing). All of the
copies of the Property Documents delivered or hereafter delivered to Purchaser
are and will be true and correct copies thereof. There are no material defaults
by any party under any of the Property Documents.
(e) Seller has full power and authority to enter into this
Agreement, bind Seller and the Premises to the commitments made hereunder, and
convey or cause the conveyance of the Premises to Purchaser.
(f) No person has any right to use or occupy the Premises other
than Seller, FSB (as defined in Section 8.7 below) and Rockies (as defined in
Section 8.8, below). No person or entity, except Purchaser and except those
contained in the Lease, has been granted any options, rights of first refusal or
other purchase rights with respect to the Premises.
(g) Except for the Property Documents and the documents described
in the Commitment, there are no agreements affecting the Premises or other
obligations or liabilities currently binding on Seller or the Premises that will
be binding on Purchaser or the Premises after the Closing.
8.2. Purchaser's Representations. Purchaser represents and warrants
to Seller that:
(a) Purchaser has the power and authority to execute and deliver
this Agreement and to perform its obligations hereunder.
(b) The execution of this Agreement by Purchaser is the duly
authorized and legally binding action of Purchaser, and upon execution hereof,
Purchaser shall be bound by and subject to the terms and provisions of this
Agreement.
8.3. Survival. The representations and warranties of the parties
contained in this Agreement or in any document executed in connection herewith,
including, without limitation, the provisions of Sections 8.1 and 8.2 above
shall not merge with or into any deed of conveyance or other document or
instrument delivered at or in connection with the Closing and shall survive the
Closing for a period of one year after the Closing; provided, however, that such
one-year limitation shall not apply to: (a) any fraud; (b) any claim or cause of
action initiated prior to the end of such one-year period but not settled prior
to the end of such period; or (iii) any claim based upon Tenant's obligations
under the Lease.
8.4. AS-IS. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES OF SELLER
SET FORTH IN THIS AGREEMENT OR ANY OF THE DOCUMENTS DELIVERED IN CONNECTION WITH
THE AGREEMENT, SELLER IS NOT MAKING ANY REPRESENTATIONS OR WARRANTIES (INCLUDING
NO WARRANTIES OF MERCHANTABILITY, HABITABILITY OR FITNESS FOR A PARTICULAR
PURPOSE), AND PURCHASER IS ACQUIRING THE PREMISES IN ITS "AS-IS" PHYSICAL
CONDITION.
8.5. Operating Covenants. From the date of this Agreement until the
Closing or earlier termination of this Agreement: (a) Seller shall continue to
operate the Premises and pay for all expenses in a manner similar to its
operation prior to the execution of this Agreement, including, without
limitation, to the providing of insurance, management, maintenance and services;
(b) no easements (other than the "Conduit Easement", as defined in Section 8.6,
below), restrictions, declarations or options shall be entered into, amended or
terminated without Purchaser's consent; (c)
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Seller shall promptly furnish Purchaser copies of all notices of violation by
Seller or the Premises of Federal, state or municipal laws, ordinances,
regulations, orders, or requirements of departments of housing, buildings, fire,
labor, health, or other Federal, state or municipal departments or other
governmental authorities; (d) Seller shall not market the Premises for sale or
otherwise accept or negotiate any offers for sale, leasing or refinancing; and
(e) no leases, service contract or other agreements affecting the Premises shall
be entered into which shall survive the Closing and affect Purchaser's interest
in the Premises without Purchaser's consent.
8.6. New Easements. Prior to Closing, Seller intends to enter into
and grant the following new easements which shall encumber the Premises and
Seller's adjacent property commonly known as the Nordstrom Credit, Inc. Data
Center (the "Data Center"):
(a) A reciprocal easement for conduit and wiring will be created
for the purpose of memorializing the existing connection between the Premises
and the Data Center (the "Conduit Easement"). The Conduit Easement shall provide
for, at least, the following: (a) Purchaser shall not be responsible for the
installation, servicing, maintenance, replacement or removal of improvements
installed in the Conduit Easement; (b) the Conduit Easement shall terminate upon
the termination of the Lease for the Premises or upon the elimination of the
data center upon the adjacent property; (c) the location of the Conduit Easement
shall be such that the Improvements located on the Premises will not encroach
into the Conduit Easement; and (d) Seller or Tenant shall be responsible to
repair that portion of the Premises covered by the Conduit Easement in the event
any installation, repair or maintenance requires that the Premises be altered or
disturbed.
(b) An easement agreement which shall encumber the Premises for
the benefit of the Data Center, related to the transformers and grid switching
equipment and conduits and lines with respect thereto which, as of the date of
this Lease, are wholly or partially located on the Land and which serve each of
the Property and the Data Center (the "Switch Easement").
8.7. FSB Lease. At Closing, Seller hereby agrees to terminate that
certain lease (the "FSB Lease") between Seller and Nordstrom fsb ("FSB").
Immediately after Closing, Tenant may enter into a sublease to replace the FSB
Lease on the terms set forth in the Lease. Seller hereby agrees that: (a)
Purchaser shall have no obligation under the FSB Lease; (b) Purchaser is not
assuming Seller's obligations under the FSB Lease; and (c) Seller agrees to
indemnify and hold Purchaser harmless from any claims made against Purchaser as
a result of the existence or termination of the FSB Lease.
8.8. Dining Agreement. Seller represents that it has entered into
an agreement (the "Dining Agreement") with Rockies Dining Service ("Rockies")
for the purpose of providing cafeteria service for employees of FSB. Seller
hereby agrees that: (a) Purchaser shall have no obligation under the Dining
Agreement; (b) Purchaser is not assuming Seller's obligations under the Dining
Agreement; and (c) Seller agrees to indemnify and hold Purchaser harmless from
any claims made against Purchaser as a result of the Dining Agreement. The
Dining Agreement shall not be deemed "Additional Property" being transferred to
Purchaser hereunder.
9. CASUALTY OR CONDEMNATION.
In the event prior to the Closing, of (a) material damage or casualty
to the Premises, or (b) a condemnation or other taking of the Premises, or any
part of the Premises, or any rights of access or
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other material rights benefiting the Premises as a result of the exercise of the
power of eminent domain, or in the event that any type of proceeding for such a
condemnation or taking is commenced prior to the Closing by any governmental
body, then, in any such case, Seller shall promptly notify Purchaser in writing
of such event, and Purchaser shall have the option to either: (i) terminate this
Agreement, in which event the Xxxxxxx Money, and all interest earned thereon,
shall be returned to Purchaser and neither party shall have any further
obligations or liabilities hereunder; or (ii) proceed with the Closing. If
Purchaser elects to proceed with the Closing or is not entitled to terminate
this Agreement, Seller shall deposit into an escrow (which shall thereafter be
used by Tenant and/or Purchaser in the manner described in the Lease) all
condemnation awards, in the event of eminent domain, or insurance proceeds, in
the event of damage or casualty, and shall deposit into said escrow the amount
of all deductibles or other uninsured damages so that such sums can be used by
Tenant and/or Purchaser to restore the Premises as contemplated in the Lease. In
all cases, Purchaser shall not be obligated to proceed to purchase the Premises,
unless it receives from Tenant adequate written assurance that it will continue
to perform under the Lease notwithstanding the casualty or condemnation (without
any abatement or off-set). Purchaser shall exercise its option under clause (i)
or (ii) of this Section 9 by providing Seller with a written notice of its
decision within thirty (30) days after Purchaser receives written notice of the
condemnation or damage or casualty and of the cost of repair as determined by
the insurance adjuster, as provided below, and the Closing Date shall be
extended, if necessary, to permit Purchaser to make such election within such
time period. For purposes hereof, "material" damage or casualty shall mean
damage or casualty costing more than $250,000 to repair, as determined by an
insurance adjuster mutually selected by Seller and Purchaser.
10. DEFAULT/REMEDY.
10.1. Seller Default. In the event of a default by Seller of which
Purchaser is aware prior to Closing in the performance or observance of any of
Seller's duties or obligations herein contained, and upon the failure of Seller
to cure such default within seven (7) days following written notice therefrom
Purchaser, then Purchaser, at its option and as its sole remedies, may either:
(a) terminate this Agreement in which event (i) the Xxxxxxx Money and all
interest earned thereon shall be returned to Purchaser and (ii) Seller shall
reimburse Purchaser for all costs and expenses incurred by Purchaser in
negotiating and undertaking the transactions contemplated hereby and
investigating the Premises, including, without limitation, all costs associated
with the investigations and other activities described or contemplated under
Section 3.1 above; or (b) specifically enforce this Agreement, by legal action
or otherwise. In the event of a default by Seller of which Purchaser is not
aware prior to Closing, including, without limitation, a breach of any
representation or warranty not discovered until after Closing, Purchaser shall
be entitled to exercise any and all rights and remedies at law or in equity.
10.2. Purchaser Default. In the event of a default by Purchaser of
which Seller is aware prior to Closing in the performance or observance of any
of Purchaser's duties or obligations herein contained, and upon the failure of
Purchaser to cure such default within seven (7) days following written notice
thereof from Seller, then Seller may terminate this Agreement and the Xxxxxxx
Money and all interest earned thereon shall be paid to Seller as liquidated
damages and as Seller's sole and exclusive remedy against Purchaser. In the
event of a default of Purchaser of which Seller is not aware prior to Closing,
including, without limitation, a breach of any representation or warranty not
discovered until after Closing, Seller shall be entitled to exercise any and all
rights and remedies at law or in equity.
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10.3. Costs. In addition to the rights and remedies set forth in
Section 10.1 and 10.2, all reasonable attorneys' fees and court costs incurred
by a non-defaulting party to enforce this Agreement against a defaulting party
shall be paid by the defaulting party. A prevailing party's right to
reimbursement for fees and costs shall not be merged into any judgment entered
in connection herewith and extend to the collection of any judgment issued in
connection herewith.
11. MISCELLANEOUS.
11.1. Notices. Any notice required or permitted to be given under
this Agreement shall be in writing and shall be deemed to have been given (a) on
the same date as the date on which such notice is delivered personally or sent
by fax (with fax confirmation received), (b) on the date that is three (3)
business days after the date on which such notice is deposited in the United
States mail, registered or certified mail, postage prepaid, return receipt
requested, or (c) on the date that is one (1) business days after the date on
which such notice is sent by overnight courier services (such as Federal Express
or any other national courier service), and, in each case, addressed to the
applicable party and its attorney at their addresses set forth in the Summary of
Terms at the beginning of this Agreement (or to such other address as either
party may from time to time specify in a written notice to the other in
accordance with the terms hereof).
11.2. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of where the Premises is
located.
11.3. Counterparts. This Agreement 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 document.
11.4. Time of Essence. Time is of the essence of this Agreement.
11.5. Independent Counsel; Interpretation. Purchaser and Seller each
acknowledge that: (a) they have been represented by independent counsel in
connection with this Agreement; (b) they have executed this Agreement with the
advice of such counsel; and (c) this Agreement is the result of arms length
negotiations between the parties hereto and the advice and assistance of their
respective counsel. Notwithstanding any rule of law to the contrary: (i) the
fact that this Agreement was prepared by Purchaser's counsel as a matter of
convenience shall have no import or significance, and any uncertainty or
ambiguity in this Agreement shall not be construed against Purchaser because
Purchaser's counsel prepared this Agreement; and (ii) no deletions from prior
drafts of this Agreement shall be construed to create the opposite intent of the
deleted provisions.
11.6. Tax-Deferred Exchange. Seller and Purchaser acknowledge that
either one or both of them may be entering into this transaction in connection
with a tax-deferred exchange (the "Exchange"). If requested by either party, the
other party shall cooperate with the requesting party in effectuating such
Exchange, including executing any documents, instruments or agreements
reasonably requested by the requesting party, provided the other party shall not
be obligated to (i) expend any costs in connection with such Exchange or (ii)
accept or assume any additional obligations or liabilities in connection with
such Exchange.
11.7. No Waiver/Amendments. Neither the failure of either party to
exercise any power given such party hereunder or to insist upon strict
compliance by the other party with its obligations hereunder, nor any custom or
practice of the parties at variance with the terms hereof shall constitute
10
a waiver of either party's right to demand exact compliance with the terms
hereof. No amendment to this Agreement shall be binding on any of the parties
hereto unless such amendment is in writing and is executed by the party against
whom enforcement of such amendment is sought.
11.8. Entire Agreement. Except for the Lease and the other documents
required to be delivered in connection herewith, this Agreement contains the
entire agreement of the parties hereto with respect to the Premises and any
other prior understandings or agreements are merged herein and no
representations, inducements, promises or agreements, oral or otherwise, between
the parties not embodied herein or incorporated herein by reference shall be of
any force or effect.
11.9. Binding Effect. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, legal representatives, successors and assigns.
11.10. Severability. This Agreement is intended to be performed in
accordance with, and only to the extent permitted by, all applicable laws,
ordinances, rules and regulations. If any term or provision of this Agreement or
the application thereof to any person or circumstance shall for any reason and
to any extent be held to be invalid or unenforceable, then such term or
provision shall be ignored, and to the maximum extent possible, this Agreement
shall continue in full force and effect, but without giving effect to such term
or provision.
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11
IN WITNESS WHEREOF, this Purchase and Sale Agreement has been executed
by the parties hereto as of the date first above written.
PURCHASER:
XXXX-XXXXXX ASSOCIATES, LLC, an
Illinois limited liability company
By: /s/ Xxxxxx Xxx Xxxx
-------------------
Name: Xxxxxx Xxx Xxxx
Title: Manager
SELLER:
NORDSTROM CREDIT, INC., a Colorado
corporation
By: /s/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
Title: President
SCHEDULE OF EXHIBITS
EXHIBIT A - Legal Description of Land
EXHIBIT B - Seller Due Diligence Deliveries
EXHIBIT C - Seller Closing Documents
EXHIBIT D - Form of Lease
EXHIBIT E - List of Property Documents
12
EXHIBIT A
Legal Description of Land
XXX 0, XXXXXXXXXX XXXXXX XX. 0, XXXXXXXXX TO THE PLAT RECORDED ON JUNE 29, 1984
IN BOOK 76 AT PAGES 54 AND 55, COUNTY OF ARAPHAHOE, STATE OF COLORADO
A-1
EXHIBIT B
Seller Due Diligence Deliveries
(a) all leases, service contracts, management agreements, ground
leases, licenses or other agreements relating to the use or occupancy of the
Premises, including the FSB Lease and the Dining Agreement;
(b) "as built" sets of plans for the Premises and any existing
topographical or engineering drawings for the Premises, if any, in Seller's
possession;
(c) copies of all approvals, authorizations, consents, licenses,
permits, privileges, rights, variances and waivers relating to the Premises from
any federal, state, county, municipal or other governmental or
quasi-governmental agency, department, board, commission, bureau or other entity
or instrumentality having jurisdiction over said Premises, if any in Seller's
possession or which Seller may obtain from a third party at minimal cost,
including, but not by way of limitation, those with respect to building (i.e.
certificates of occupancy), effluent control, environmental protection, fire,
foundation, pollution control, use, utilities and zoning heretofore held by or
granted to Seller;
(e) copies of any and all public or private utility easements,
access agreements, special assessment arrangements, tap-in or connection fee
agreements or procedures and any public financial assistance relating to each
Premises;
(f) any soil or boring reports, environmental studies,
hydrological studies, engineering studies, percolation tests or data relating to
the Premises, if any, in Seller's possession;
(g) copies of tax bills and documents relating to tax and
assessment proceedings, abatement, notices or appeals, if any, in Seller's
possession;
(h) copies of any notices received from any federal, state or
local governmental authority relating to the Premises, if any, in Seller's
possession; and
(i) copies of existing title insurance policies and any surveys
relating to the Premises.
B-1
EXHIBIT C
SELLER CLOSING DOCUMENTS
(a) a special/limited warranty deed from Seller to Purchaser for
the Land and Improvements in recordable form;
(b) a xxxx of sale conveying all of Seller's right, title and
interest in the Fixtures and containing customary warranty of title, but no
other warranties;
(c) Seller's assignment to Purchaser of all of Seller's interest
in the Additional Property, which Assignment shall include an indemnification of
Purchaser by Seller against liability accruing or arising prior to the Closing
Date;
(d) such other documents and instruments as are required to
transfer Seller's interest in the Premises to Purchaser, including, without
limitation, all consents from third parties that are required to properly and
legally effect the transfer of the Premises to Purchaser;
(e) an ALTA extended coverage statement and/or title affidavits,
gap undertaking, and all other affidavits, certifications and other documents
required by the Title Company in connection with its issuance of the Title
Policy;
(f) a non-foreign affidavit from Seller certifying that Seller is
not a "foreign person," "foreign corporation" or any other foreign entity as
such terms are defined in Section 1445 of the Internal Revenue Code and the
income tax regulations promulgated thereunder;
(g) a certificate executed by Seller confirming that the
representations and warranties made by Seller in this Agreement remain true and
correct as of the Closing Date;
(h) evidence of Seller's existence as a corporation in good
standing in the State of its formation and of Seller's authority to do business
in the State of Colorado and to enter into and perform its obligations under
this Agreement;
(i) originals or copies of all warranties, guaranties, plans and
specifications, licenses and permits related to the ownership, construction and
operation of the Premises to the extent such documents are in Seller's
possession or may be obtained by seller at nominal cost, and copies of all keys,
combinations and other similar items required to properly deliver control of the
Premises to Purchaser;
(j) terminations of all management and/or leasing agent or
brokerage agreements, together with full releases from any and all management
and leasing agents;
(k) such other documents as reasonably may be required by
Purchaser or the Title Company to consummate the transactions contemplated by
this Agreement; and
(l) an estoppel certificate from Tenant relating to the Lease (if
requested by Purchaser), along with any subordination, non-disturbance and
attornment agreement as may be required of Tenant in connection with the terms
of the Lease.
C-1
EXHIBIT D
Form of Lease
[See Attached]
D-1
EXHIBIT E
List of Property Documents
1. Those documents referred to in Chicago Title Insurance Company
Commitment number 1295469 dated October 16, 2002 and referred to therein
Exceptions 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17.
2. The Conduit Easement
3. The Switch Easement
4. The FSB Lease
5. The Dining Agreement
EXHIBIT D
LEASE
BETWEEN
XXXX-XXXXX LLC,
A COLORADO LIMITED LIABILITY COMPANY
AS LANDLORD,
AND
NORDSTROM, INC.,
A WASHINGTON CORPORATION
AS TENANT
PREMISES:
00000 XXXX XXXXX XXXXXX
XXXXXXXXXX, XXXXXXXX
DATED AS OF DECEMBER 16, 2002
LEASE
THIS LEASE (the "Lease") is made as of the 16th day of December 2002,
between XXXX-XXXXX LLC ("Landlord"), a limited liability company, existing under
the laws of the State of Colorado having an office at 000 Xxxx Xxxxxxx Xxxx.,
00xx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, and NORDSTROM, INC. ("Tenant"), a
corporation existing under the laws of the State of Washington, having an office
at 0000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000, Attn.: Real Estate
Notices.
W I T N E S S E T H:
It is hereby mutually covenanted and agreed by and between the parties
hereto that this Lease (hereinafter defined) is made upon the terms, covenants
and conditions hereinafter set forth.
ARTICLE 1
DEFINITIONS
The terms defined in this Article 1, for all purposes of this Lease,
shall have the following meanings:
1.01 "Additional Rent" shall have the meaning provided in Section
3.02.
1.02 "Affiliate of Tenant" shall mean any Person controlled by,
under common control with or controlling Tenant.
1.03 "Base Rent" shall have the meaning provided in Section 3.01.
1.04 "Building" shall mean: (i) all of the three-story office
building commonly known as 00000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx, and
which, for purposes of this Lease, shall be deemed to contain 110,000 rentable
square feet, more or less; (ii) the Equipment (hereinafter defined); (iii) all
other improvements and appurtenances of every kind and description now or
hereafter erected, constructed or placed on or about the Land (hereinafter
defined) other than Removable Items (hereinafter defined); and (iv) any and all
alterations and replacements thereof, additions thereto and substitutions
therefor.
1.05 "Business Day" shall mean any day which is not a Saturday,
Sunday or a day observed as a holiday by either the States of Colorado or
Washington or the United States government.
1.06 "Capital Improvement" shall have the meaning provided in
Section 13.01.
1.07 "Certificate of Occupancy" shall mean a certificate of
occupancy (temporary or permanent) or other similar certificate issued by the
appropriate governmental department or agency of the City (hereinafter defined).
1.08 "City" shall mean the City of Centennial, Colorado.
1.9 "Claim" shall have the meaning provided in Section 28.01(a).
1.10 "Commencement Date" shall mean the date of commencement of the
Term (hereinafter defined) as set forth in Article 2.
1.11 "Construction Agreements" shall mean agreements for
construction, Restoration (hereinafter defined), Capital Improvement,
rehabilitation, alteration, conversion, extension, repair or demolition
performed pursuant to this Lease.
1.12 "Default" shall mean any condition or event which constitutes
or, after the giving of notice or the passage of time or both, would constitute
an Event of Default (hereinafter defined).
1.13 "Deficiency" shall have the meaning provided in Section
24.04(c).
1
1.14 "Escrow Agent" shall mean (i) any title insurance and trust
company qualified to do business in the State of Colorado which has a net worth
of not less than $10,000,000 or any Fee Mortgagee having a net worth not less
than $50,000.000.00, and (ii) which is designated from time to time by Landlord
to serve as Escrow Agent pursuant to this Lease in accordance with escrow
instructions approved in writing by both Landlord and Tenant, such approval not
to be unreasonably withheld or delayed.
1.15 "Environmental Law" shall have the meaning provided in Section
28.01(b).
1.16 "Equipment" shall mean any and all fixtures, equipment and
machinery of every kind and nature whatsoever now or hereafter affixed or
attached to the Building, or now or hereafter used or procured for use in
connection with the operation, use or occupancy thereof, and the appurtenances
thereof, but excluding therefrom all trade fixtures and articles of personal
property title to which is vested in the tenants under any leases of space
therein or in contractors engaged in maintaining the Premises that is not
necessary for the operation of the Building or Building systems.
1.17 "Event of Default" shall have the meaning provided in Section
24.01.
1.18 "Expiration Date" shall mean the date of the expiration of the
Term as set forth in Article 2.
1.19 "Fee Mortgage" shall mean any mortgage or trust deed which
hereafter is a lien on the entire fee simple title to the Premises, or any part
thereof, as the same may be renewed, modified, amended, extended, consolidated
or coordinated from time to time.
1.20 "Fee Mortgagee" shall mean the holder of a Fee Mortgage.
1.21 "Governmental Authority (Authorities)" shall mean the United
States of America, the State of Colorado, County of Arapahoe and the City, and
any agency, authority, department, commission, board, bureau, instrumentality or
political subdivision of any of the foregoing, now existing or hereafter
created, having jurisdiction over the Premises or any portion thereof.
1.22 "Hazardous Materials" shall have the meaning provided in
Section 28.01(c).
1.23 "Impositions" shall have the meaning provided in Section 4.01.
1.24 "Indemnified Party" shall have the meaning provided in Section
19.01.
1.25 "Insurance Policies" shall mean any and all insurance policies
which Tenant is required to keep and maintain pursuant to this Lease.
1.26 "Land" shall mean the parcel of real estate legally described
on Exhibit A attached hereto and made a part hereof.
1.27 "Landlord," on the date as of which this Lease is made, shall
mean Xxxx-Xxxxx LLC, a Colorado limited liability company, but thereafter,
"Landlord" shall mean only the holder of the landlord's interest in the Premises
at the time in question, so that if Xxxx-Xxxxx LLC, a Colorado limited liability
company or any successor to its interest hereunder ceases to have any interest
in the Premises as the result of a sale or sales or transfer or transfers of the
landlord's interest in the Premises, then the Landlord under this Lease at the
time of such sale or sales or transfer or transfers shall be and hereby is
entirely freed and relieved of all agreements, covenants and obligations of
Landlord hereunder to be performed on or after the date of such sale or
transfer, any remaining liability of such Landlord to be subject to the
provisions of Section 39.06 hereof, and it shall be deemed and construed without
further agreement between the parties or their successors in interest and the
Person who then acquires or owns the landlord's interest in the Premises,
including, without limitation, the purchaser or transferee in any such sale or
transfer, that such Person has assumed and agreed to carry out, subject to the
provisions of Section 39.06 hereof, any and all agreements, covenants and
obligations of Landlord hereunder accruing on or after the date of the aforesaid
sale or transfer.
1.28 "Late Charge Rate" shall have the meaning provided in Article
6.
1.29 "Lease" shall mean this Lease and all amendments,
modifications, extensions and renewals hereof and exhibits attached hereto.
2
1.30 "Lease Year" shall mean the consecutive twelve (12) month
period during the Term commencing on the Commencement Date if the Commencement
Date is on the first day of a calendar month, or if the Commencement Date is not
on the first day of a calendar month, the period commencing on the Commencement
Date and ending on the last day of the 12th full calendar month of the Term,
and, in either case, each successive consecutive twelve (12) month period
thereafter.
1.31 "Liability Insurance" shall have the meaning provided in
Section 7.01(a)(ii).
1.32 "Manage" shall have the meaning provided in Section 28.01(d).
1.33 "Net Replacement Cost" shall mean the actual replacement cost
of the Building (excluding foundation and excavation costs, but including the
cost of debris removal and of replacing all Equipment appurtenant to, located in
or used in connection with the Building) without physical depreciation.
1.34 "Nondisturbance Agreement" shall have the meaning provided in
Section 27.02.
1.35 "Notice" shall have the meaning provided in Section 25.01.
1.36 "Permitted Encumbrances" shall mean the items set forth in
Exhibit B attached hereto and made a part hereof.
1.37 "Person" shall mean and include an individual, corporation,
partnership, joint venture, estate, trust, unincorporated association or any
federal, state, county or municipal government or any bureau, department,
authority or agency thereof.
1.38 "Premises" shall mean the Land and the Building.
1.39 "Prime Rate" shall mean the annual rate of interest announced
from time to time by LaSalle Bank N.A. as its corporate base rate of interest.
1.40 "Release" or "Released" shall have the meaning provided in
Section 28.01(e).
1.41 "Removable Items" shall have the meaning provided in Section
32.04.
1.42 "Rental" or "Rent" shall have the meaning provided in Section
3.03.
1.43 "Requirements" shall have the meaning provided in Section
14.01.
1.44 Response" or "Respond" shall have the meaning provided in
Section 28.01(f).
1.45 "Restoration" shall have the meaning provided in Section 8.01.
1.46 "Restoration Funds" shall have the meaning provided in Section
8.02.
1.47 "Restore" shall have the meaning provided in Section 8.01.
1.48 "Significant Portion" shall have the meaning provided in
Section 9.01(e).
1.49 "Subleases" shall have the meaning provided in Section 10.06.
1.50 "Subtenants" shall have the meaning provided in Section 10.01.
1.51 "Tenant" shall mean Nordstrom, Inc., a Washington corporation,
provided, however, that whenever this Lease and the leasehold estate hereby
created shall be assigned or transferred in accordance with the terms of and in
the manner specifically permitted by this Lease, then, from and after the date
of such assignment or transfer and until the next permitted assignment or
transfer, the term
3
"Tenant" shall also mean the permitted assignee or transferee, except that the
assignor shall continue to remain liable with respect to any obligations or
liabilities of Tenant hereunder.
1.52 "Term" shall mean the term of this Lease as set forth in
Article 2 hereof.
1.53 "Unavoidable Delays" shall mean delays incurred by Tenant due
to strikes, lockouts, acts of God, enemy action, civil commotion, governmental
restrictions or preemption, fire or other casualty or other causes beyond the
reasonable control of Tenant (not including Tenant's insolvency, bankruptcy or
financial condition or financial difficulties or problems or any action by
Tenant or any Affiliate of Tenant).
1.54 "Zoning Laws" shall mean the zoning laws of the City, as the
same may be amended from time to time.
ARTICLE 2
PREMISES; TERM OF LEASE; EXTENSION OPTIONS
2.01 Landlord does hereby demise and lease to Tenant, and Tenant
does hereby lease, hire and take from Landlord (a) the Land, and (b) the
Building as now or hereafter erected thereon, subject to the Permitted
Encumbrances.
TO HAVE AND TO HOLD unto Tenant, its successors and assigns, for a term
of fifteen (15) years (the "Term") commencing on the date on which Landlord
acquires fee simple title to the Premises (the "Commencement Date") and expiring
on the day immediately preceding the fifteenth (15th) anniversary of the
Commencement Date (the "Expiration Date"), subject to extension or earlier
termination as provided in this Lease. (The initial fifteen (15)-year term of
this Lease is sometimes hereinafter referred to as the "Initial Term").
2.02 Landlord agrees that, so long as no Event of Default has
occurred and Tenant gives Landlord the written notices hereinafter described,
Tenant shall have, and it is hereby granted, five (5) successive options to
extend the Term for a period of five (5) years for each such option
(individually, an "Option Period", and jointly, the "Option Periods"), such
Option Period to begin respectively upon the Expiration Date of the Initial Term
or the expiration of the immediately preceding Option Period, as the case may
be. In order to exercise such options to extend the Term into the next
succeeding Option Period, Tenant shall give Landlord notice of such exercise no
later than 365 days prior to the expiration of the Initial Term, or 365 days
prior to the expiration of the then-current Option Period, as the case may be,
time being of the essence. Upon the failure of Tenant to exercise any option
herein by giving the written notice required under this Section 2.02, and, in
any event, upon expiration of the fifth Option Period, Tenant shall have no
further or additional right to renew or extend this Lease. Notwithstanding the
foregoing, in order to avoid any forfeiture or inadvertent lapse of any right to
extend as aforesaid, if Tenant shall fail to give any such notice within the
aforesaid time limit and shall not have given Landlord prior written notice of
its intention not to extend as aforesaid, Tenant's right to exercise such option
to extend this Lease into the next succeeding Option Period shall nevertheless
continue, as shall its tenancy hereunder (under the same terms and conditions as
theretofore in effect and notwithstanding that the Initial Term or the
then-current Option Period shall have expired) until thirty (30) days after
Landlord shall have given Tenant notice of Landlord's election to terminate the
Term, and Tenant may exercise its extension option at any time prior to
expiration of said thirty (30)-day period, time being of the essence. Upon the
giving of notice of Tenant's exercise of its option to extend in accordance with
the foregoing provisions, the Term shall thereupon be extended without further
act by Landlord or Tenant, the same as if such notice had been timely given
hereunder. The terms and conditions of this Lease shall remain unchanged during
all Option Periods, except that the rent payable during each Option Period shall
be as specified in Article 3 hereof.
As used in this Lease (i) the "Term" shall mean the period between the Effective
Date and the expiration of the Initial Term or the expiration of the Option
Periods, if any, whichever is the latter, and (ii) "Expiration Date" shall mean
the last day of the Initial Term or the expiration of the Option Periods, if
any, whichever is the latter.
ARTICLE 3
RENT
3.01 Tenant shall pay to Landlord, without offset or deduction and
without notice or demand, the annual sums set forth on Exhibit C (collectively,
"Base Rent") payable in advance on the first (1st) day of each calendar month of
the Term in equal monthly installments as specified therein (unless any such
date is not a Business Day, in which case payment shall be due on the next
succeeding Business Day), for the period commencing on the Commencement Date and
continuing thereafter throughout the Term.
4
The first installment of Base Rent shall be due and payable on the
Commencement Date hereof. Base Rent shall be paid in lawful money of the United
States to Landlord at the office of Landlord set forth above or at such other
place as Landlord shall direct from time to time by written notice to Tenant. If
the Term commences other than on the first day of a calendar month, or ends
other than on the last day of a calendar month, then, for such calendar month,
Base Rent shall be prorated to reflect that portion of such calendar month
included in the Term, and shall also be paid by Tenant on the Commencement Date
hereof.
3.02 Tenant shall also pay and discharge as additional rent (the
"Additional Rent") all other amounts, liabilities and obligations of whatsoever
nature relating to the Premises, including, without limitation, any amounts
arising under any operating easement, or other similar agreements affecting the
Premises or any adjoining property thereto, and all interest and penalties that
may accrue thereon in the event of Tenant's failure to pay such amounts when
due, and all damages, costs and expenses which Landlord may incur by reason of
any Default of Tenant or failure on Tenant's part to comply with any of the
terms of this Lease, all of which Tenant hereby agrees to pay upon demand. Upon
any failure on the part of Tenant to pay any of the Additional Rent, Landlord
shall have the same legal, equitable and contractual rights, powers and remedies
provided either in this Lease or by statute or by common law or otherwise as are
available to Landlord in the case of nonpayment of Base Rent.
3.03 This Lease shall be deemed and construed to be a fully "net
lease" and Tenant shall pay to Landlord, absolutely net throughout the Term, all
Base Rent and Additional Rent (collectively, "Rental" or "Rent" ), free of any
charges, assessments, impositions or deductions of any kind and without
abatement, deduction or setoff whatsoever in the manner set out above for
payment of Base Rent, and under no circumstances or conditions, whether now
existing or hereafter arising, or whether beyond the present contemplation of
the parties, shall Landlord be expected or required to make any payment of any
kind whatsoever relating to the Premises or be under any other obligation or
liability hereunder or otherwise, except as herein otherwise expressly set
forth. Except for debt service on any indebtedness of Landlord, Tenant shall pay
all costs, expenses and charges of every kind and nature relating to the
Premises which may arise or become due or payable prior to, during or after (but
attributable to a period falling within) the Term, including all costs, expenses
and charges related to all recorded or unrecorded agreements, easements,
covenants, conditions of record, declarations, restrictions or other matters
affecting the title to the Premises, and Tenant hereby agrees to indemnify
Landlord against and hold Landlord harmless from the same. Except as otherwise
specifically provided in this Lease, Tenant's obligation to pay Rental hereunder
shall not terminate prior to the Expiration Date, notwithstanding the exercise
by Landlord of any or all of its rights under Article 24 hereof or otherwise,
and all the obligations of Tenant hereunder shall be absolute and shall not be
affected for any reason whatsoever, including, without limitation, by any damage
to or destruction of the Premises or any part thereof, any taking of the
Premises or any part thereof or interest therein by condemnation or otherwise,
any prohibition, limitation, restriction or prevention of Tenant's use,
occupancy or enjoyment of the Premises or any part thereof, or any interference
with such use, occupancy or enjoyment by any person or for any reason, any
matter affecting title to the Premises, any default by Landlord hereunder, the
impossibility, impracticability or illegality of performance by Landlord, Tenant
or both, any action of any governmental authority, Tenant's acquisition of
ownership of all or part of the Premises (unless this Lease shall be terminated
by a writing signed by all persons, including any Fee Mortgagee, having an
interest in the Premises), any breach of warranty or misrepresentation, or any
other cause whether similar to or dissimilar from the foregoing and whether or
not Tenant shall have notice or knowledge thereof and whether or not such cause
shall now be foreseeable. The parties intend that the obligations of Tenant
under this Lease shall be separate and independent covenants and agreements and
shall continue unaffected unless such obligations have been modified or
terminated pursuant to an express provision of this Lease.
3.04 Tenant shall remain obligated under this Lease in accordance
with its terms and shall not take any action to terminate, rescind or avoid this
Lease, notwithstanding any action for bankruptcy, insolvency, reorganization,
liquidation, dissolution or other proceeding affecting Landlord or any assignee
of Landlord or any action with respect to this Lease which may be taken by any
trustee, receiver or liquidator or by any court. Tenant hereby waives all right
(i) to terminate this Lease, or (ii) to surrender this Lease, or (iii) to any
abatement, deferment, reduction, setoff, counterclaim or defense with respect to
any Rental payable hereunder. Tenant shall remain obligated under this Lease in
accordance with its terms, and Tenant hereby waives any and all rights now or
hereafter conferred by statute or otherwise to modify or to avoid strict
compliance with its obligations under this Lease. Notwithstanding any such
statute or otherwise, Tenant shall be bound by all the terms and provisions
contained in this Lease.
ARTICLE 4
IMPOSITIONS
5
4.01 Tenant shall pay or cause to be paid, in a timely manner and
as hereinafter provided, all of the following items, if any, ("Impositions"):
(a) real property taxes and assessments; (b) personal property taxes; (c)
occupancy and rent taxes; (d) water, water meter and sewer rents, rates and
charges; (e) levies; (f) license and permit fees; (g) service charges, with
respect to police protection, fire protection, street and highway maintenance,
construction and lighting, sanitation and water supply, if any; (h) gross
receipts, excise or similar taxes (i.e., taxes customarily based upon gross
income or receipts with respect to the Premises) imposed or levied upon,
assessed against or measured by Base Rent or other Rental payable hereunder, but
only to the extent that such taxes would be payable if the Premises were the
only property of Landlord (i) all excise, sales, value added, use and similar
taxes; (j) charges for utilities, communications and other services rendered or
used in or about the Premises; (k) payments in lieu of each of the foregoing,
whether or not expressly so designated; (l) fines, penalties and other similar
or like governmental charges applicable to any of the foregoing and any interest
or costs with respect thereto; and (m) any and all other federal, state, county
and municipal governmental and quasi- governmental levies, fees, rents,
assessments or taxes and charges, general and special, ordinary and
extraordinary, foreseen and unforeseen, of every kind and nature whatsoever, and
any interest or costs with respect thereto, which at any time during, prior to
or after (but attributable to a period falling within) the Term are (1)
assessed, levied, confirmed, imposed upon, or would grow or become due and
payable out of or in respect of, or would be charged with respect to, the
Premises or any document to which Tenant is a party creating or transferring an
interest or estate in the Premises, the use and occupancy thereof by Tenant, or
this transaction, and/or (2) encumbrances or liens on (i) the Premises; (ii) any
other appurtenances of the Premises; (iii) any personal property, Equipment or
other facility used in the operation thereof; or (iv) the Rental (or any portion
thereof) payable by Tenant hereunder. Each such Imposition, or installment
thereof, during the Term shall be paid before the last day the same may be paid
without fine, penalty, interest or additional cost; provided, however, that if,
by law, any Imposition may at the option of the taxpayer be paid in installments
(whether or not interest shall accrue on the unpaid balance of such Imposition),
Tenant may exercise the option to pay the same in such installments and shall be
responsible for the payment of such installments only, provided that all such
installment payments relating to periods prior to the date definitely fixed for
the expiration of the Term are required to be made prior to the Expiration Date.
Notwithstanding anything contained in this Section 4.01 to the contrary,
"Impositions" shall include all of the items listed in clauses (a) through (m),
inclusive, which have been assessed, levied or imposed, or which accrue, prior
to the Term if they become payable during the Term, and Tenant shall promptly
pay such items as and when they become due or payable.
4.02 Upon Landlord's request, Tenant shall furnish to Landlord, an
official receipt of the appropriate imposing authority evidencing that an
Imposition which is due and payable has been paid by or on behalf of Landlord,
or, if no such receipt has been received by Tenant, other evidence reasonably
satisfactory to Landlord evidencing the payment of the Imposition by the date
such Imposition was due and payable.
4.03 (a) Except as provided in subparagraph (b) hereinbelow,
nothing contained in this Article 4 shall require Tenant to pay municipal, state
or federal income, gross receipts, business and occupation, valued added,
inheritance, estate, succession, capital levy, stamp, excess profit, revenue or
gift taxes of Landlord, or any corporate franchise tax imposed upon Landlord.
(b) If at any time during the Term, a tax or excise on Rental or
the right to receive rents or other tax, however described, is levied or
assessed against Landlord as a substitute in whole or in part for any
Impositions theretofore payable by Tenant, Tenant shall pay and discharge such
tax or excise on Rental or other tax before interest or penalties accrue, and
the same shall be deemed to be an Imposition levied against the Premises.
4.04 Any Imposition imposed against the Premises relating to a
fiscal period of the imposing authority, all or a part of which is included in a
period prior to the Commencement Date, and which is assessed, levied, confirmed,
imposed upon or in respect of or become a lien upon the Premises, or shall
become payable, during the Term shall be the responsibility of Tenant, and shall
be paid by Tenant in full without apportionment between Landlord and Tenant. Any
Imposition imposed against the Premises, relating to a fiscal period of the
imposing authority, a part of which period is included within the Term and a
part of which is included in a period of time after the date definitely fixed in
Article 2 hereof for the expiration of the Term shall be apportioned between
Landlord and Tenant as of such date definitely fixed for the expiration of the
Term, so that Tenant shall pay that portion of such Imposition which that part
of such fiscal period included in the period of time before such date definitely
fixed for the expiration of the Term bears to the entirety of such fiscal
period, and Landlord shall pay the remainder thereof.
4.05 Tenant shall have the right to contest the amount or validity,
in whole or in part, of any Imposition by appropriate proceedings diligently
conducted in good faith, but only after payment of such Imposition, unless such
payment would operate as a bar to such contest, in which event, notwithstanding
the provisions of Section 4.01 hereof, payment of such Imposition shall be
postponed if and only as long as:
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(a) neither the Premises nor any part thereof would, by
reason of such postponement or deferment, be, in the reasonable judgment of
Landlord, in danger of being forfeited, lost or adversely affected;
(b) such contest shall not subject Landlord or any Fee
Mortgagee to the risk of any criminal or civil liability;
(c) such contest shall not cause Landlord to be in
default under any Fee Mortgage; and
(d) such contest, if being made with respect to any
Impositions which will either accrue or become payable during the last three (3)
years of the Term of this Lease, shall not, in the reasonable judgment of
Landlord, result in any Imposition being increased; and
(e) Tenant shall have deposited with Escrow Agent, either
pursuant to Article 5 or simultaneously with such contest, cash or other
security determined by Landlord in the amount so contested and unpaid, together
with all interest and penalties in connection therewith and all charges that may
be assessed against or become a charge on the Premises or any part thereof in
such proceedings. If Tenant qualifies to self-insure pursuant to Section 7.07 of
this Lease and provided that the Tenant under this Lease is the originally-named
Tenant, Nordstrom, Inc., a Washington corporation or its Affiliate, Tenant's
agreement to indemnify Landlord against the Imposition being contested together
with any interest, penalties, costs or other losses in connection with such
contest shall be deemed to be satisfactory security for such contest without any
additional deposit by Tenant.
Upon the termination of such proceedings, it shall be the obligation of
Tenant to pay the amount of such Imposition or part thereof as finally
determined in such proceedings, the payment of which may have been deferred
during the prosecution of such proceedings, together with any costs, fees
(including attorneys' fees and disbursements), interest, penalties or other
liabilities in connection therewith, and upon such payment, Escrow Agent, shall
return, with any interest accrued thereon, any amount deposited with it in
respect of such Imposition as aforesaid, provided, however, that Escrow Agent,
if requested by Tenant, shall disburse said moneys on deposit with it directly
to the imposing authority to whom such Imposition is payable. If, at any time
during the continuance of such proceedings, Landlord shall reasonably deem the
amount deposited as aforesaid insufficient, Tenant, upon demand, shall make an
additional deposit of such additional sums or other acceptable security as
Landlord may request, and upon failure of Tenant to do so, the amount
theretofore deposited may, at the option of Landlord, be applied by Escrow
Agent, to the payment, removal and discharge of such Imposition and the interest
and penalties in connection therewith and any costs, fees (including attorneys'
fees and disbursements) or other liability accruing in any such proceedings, and
the balance, if any, shall be returned to Tenant or the deficiency, if any,
shall be paid by Tenant on demand. Nothing contained in this Section 4.05 or
elsewhere in this Lease shall be deemed to limit Tenant's obligation to make the
deposits provided for in Article 5 hereof.
4.06 Subject to the provisions of Section 4.05, Tenant shall have
the right to seek a reduction in the assessed valuation of the Premises for real
property tax purposes and to prosecute any action or proceeding in connection
therewith.
4.07 Landlord shall not be required to join in any proceedings
referred to in Sections 4.05 or 4.06 hereof unless the provisions of any law,
rule or regulation at the time in effect shall require that such proceedings be
brought by and/or in the name of Landlord, in which event, Landlord shall join
and cooperate in such proceedings or permit the same to be brought in its name
but shall not be liable for the payment of any costs or expenses in connection
with any such proceedings, and Tenant shall reimburse and indemnify Landlord for
any and all costs or expenses which Landlord may sustain or incur in connection
with any such proceedings.
4.08 Any certificate, advice or xxxx of the appropriate official
designated by law to make or issue the same or to receive payment of any
Imposition asserting nonpayment of such Imposition shall be prima facie evidence
that such Imposition is due and unpaid at the time of the making or issuance of
such certificate, advice or xxxx.
ARTICLE 5
DEPOSITS FOR IMPOSITIONS
5.01 (a) In order to assure the payment of all Impositions,
Tenant shall deposit with Escrow Agent on the first day of each and every month
during the Term, an amount equal to one-twelfth (1/12th) of the annual
Impositions then in effect, as
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reasonably estimated by Landlord. If, at any time, the monies so deposited by
Tenant shall be insufficient to pay in full the next installment of Impositions
then due, Tenant shall immediately deposit the amount of the insufficiency with
Escrow Agent to enable Landlord to pay each installment of Impositions at least
thirty (30) days prior to the due date thereof. Notwithstanding the foregoing,
if any Fee Mortgagee requires the deposit by Tenant of amounts to be used to pay
Impositions, then Landlord may elect, by delivering written notice thereof to
Tenant, that Tenant make such deposits with such Fee Mortgagee, which direction
shall be effective during the period in which Tenant is required to make said
deposits with such Fee Mortgagee.
(b) Escrow Agent shall hold the deposited moneys in a
segregated interest bearing account (unless Escrow Agent is a Fee Mortgagee in
which event such moneys shall not be held in a segregated interest bearing
account), for the purpose of paying the charges for which such amounts have been
deposited as they become due, and Escrow Agent shall apply the deposited moneys
for such purpose in accordance with Article 4 of this Lease not later than the
last day on which any such charges may be paid without penalty, fine or
interest.
(c) If, at any time, the amount of any Imposition is
increased or Landlord receives information that an Imposition will be increased
and the monthly deposits then being made by Tenant under this Article would be
insufficient to pay such Imposition thirty (30) days prior to the due date
thereof, the monthly deposits shall thereupon be increased and Tenant shall, on
Landlord's demand, deposit immediately with Escrow Agent sufficient moneys for
the payment of the increased Imposition. Thereafter, the monthly payments shall
be adjusted so that Landlord shall receive from Tenant sufficient moneys to pay
each Imposition at least thirty (30) days prior to the due date of such
Imposition.
(d) For the purpose of determining whether Landlord has
on hand sufficient moneys to pay any particular Imposition at least thirty (30)
days prior to the due date thereof, deposits for each category of Imposition
shall be treated separately. Landlord shall not be obligated to use moneys
deposited for the payment of an item not yet due and payable for the payment of
an item that is due and payable.
(e) If this Lease shall be terminated by reason of any
Event of Default, all deposited moneys under this Article then held by Escrow
Agent shall be paid to and applied by Escrow Agent in payment of any and all
Impositions due under this Lease, and Tenant shall promptly pay the resulting
deficiency.
(f) At the termination of this Lease, Tenant shall pay to
Landlord for Impositions for the final calendar year, or portion thereof, in
which this Lease is in effect the amount of Imposition for such final calendar
year, or portion thereof, based upon the prior year's Impositions. Recomputation
of the Impositions due as set forth above shall be made as soon as Landlord
receives the xxxx for the last year of the Term. Landlord's and Tenant's
obligations hereunder shall survive the expiration of this Lease.
5.02 In the event of a sale or transfer by Landlord of its interest
in the Premises, Landlord shall transfer to the person who owns or acquires such
interest in the Premises or is the transferee of Landlord's interest under this
Lease, the deposits made pursuant to Section 5.01, subject to the provisions
thereof. Upon such transfer and notice thereof to Tenant, Landlord shall be
deemed to be released from all liability with respect thereto and Tenant shall
look solely to the transferee with respect thereto, and the provisions hereof
shall apply to each successive transfer of the deposits.
5.03 Landlord may use any amounts deposited hereunder by Tenant to
cure any Default hereunder by Tenant, and if Landlord so uses any such amounts,
Tenant shall, within five (5) days after Landlord's request, replenish the
amounts so used by Landlord.
5.04 Notwithstanding the foregoing provisions of this Article 5, so
long as (i) Tenant is the originally named Tenant under this Lease - Nordstrom,
Inc., a Washington corporation or its Affiliate, (ii) Tenant has the tangible
net worth in accordance with clause (i) of Section 7.07, and (iii) no Default
has occurred that has not been cured within the respective cure period pursuant
to Article 24 , then, the provisions of this Article 5 shall not apply to
Tenant.
ARTICLE 6
LATE CHARGES; SERVICE FEES
(a) If payment of Base Rent, Impositions or other Rental shall
become overdue beyond the due date thereof pursuant to this Lease (or if no such
due date is set forth in this Lease, then such due date for purposes of this
Article 6 shall be deemed to be the date upon which demand therefor is made), a
late charge on the sums so overdue equal to interest on the unpaid amount
calculated at an
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annual rate equal to the Prime Rate plus four percent (4%) per annum (the "Late
Charge Rate"), for the period from the due date to the date of actual payment,
shall become due and payable to Landlord as liquidated damages for the
administrative costs and expenses incurred by Landlord by reason of Tenant's
failure to make prompt payment, and the late charges shall be payable by Tenant
on demand. No failure by Landlord to insist upon the strict performance by
Tenant of its obligations to pay late charges shall constitute a waiver by
Landlord of its right to enforce the provisions of this Article 6 in any
instance thereafter occurring. The provisions of this Article 6 shall not be
construed in any way to extend the grace periods or notice periods provided for
in Article 24.
(b) Tenant shall pay, as additional Rental, a service charge for
bookkeeping and administrative expenses equal to five percent (5%) of any
installment of Base Rent or other Rental not paid by Tenant to Landlord within
five (5) days after notice that such installment or other Rental, as the case
may be, is past due under this Lease; provided, however, such service charge
shall not be imposed by Landlord with respect to the first time Tenant makes
late payment of an installment of Base Rent or other Rental. Landlord's
acceptance of such service charge and interest payments shall not be deemed
consent by Landlord to late payments, nor a waiver of Landlord's right to insist
upon timely payments at any time, nor a waiver of any remedies to which Landlord
is entitled as a result of the late payment of any Rental.
ARTICLE 7
INSURANCE
7.01 (a) Tenant shall:
(i) keep the Building insured against loss or
damage by fire, windstorm, tornado and hail and all other
hazards covered by the usual extended coverage and "all risk"
endorsements of whatsoever kind ("Property Insurance"),
including, without limitation, coverage for loss or damage by
water, flood, and sprinkler leakage with such sublimits as are
reasonably required by Landlord. Such Property Insurance shall
be in the amount set forth in the "agreed amount clause"
endorsement to the policy in question, which endorsement shall
be attached to the policy, provided that such amount, in all
events, shall be (x) sufficient to prevent Landlord and Tenant
from becoming co-insurers under provisions of applicable
policies of insurance, and (y) in the amount not less than one
hundred percent (100%) of the Net Replacement Cost of the
Building, such Net Replacement Cost to be determined annually
by the Tenant. Landlord shall have the right to review
Tenant's determination of the Net Replacement Cost, and, if
Landlord disagrees with Tenant's determination, Landlord and
Tenant shall discuss the determination and seek to agree upon
a mutually satisfactory valuation. If Landlord and Tenant are
unable to agree upon the Net Replacement Cost within thirty
(30) days from Landlord's receipt of Tenant's determination,
then, the value shall be established by arbitration in
accordance with Article 35. The arbitrators chosen for such
arbitration shall be MAI appraisers with at least 10 years
experience appraising commercial office buildings in the
Greater Denver Metropolitan Area. No omission on the part of
Landlord to request any such determination shall relieve
Tenant of its obligation to have such Net Replacement Cost
determined as aforesaid, and (b) any such determination to the
contrary notwithstanding, Landlord may, subject to subsection
7.01(a)(v) below, require Tenant to furnish additional
insurance of the nature specified in this paragraph at any
time that Landlord reasonably deems such Property Insurance to
be inadequate;
(ii) provide and keep in force commercial general
liability insurance (which may be provided in part by umbrella
coverage) ("Liability Insurance") against liability for bodily
injury and death and property damage, such Liability Insurance
to be in such amount as may from time to time be reasonably
required by Landlord, but not less than $15,000,000 combined
single limit for liability for bodily injury, death and
property damage, and shall include the Premises and all
sidewalks adjoining or appurtenant to the Premises, shall
contain blanket contractual coverage and shall also provide
the following protection:
(1) completed operations;
(2) personal injury liability;
(3) employees as additional insured
coverage; and
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(4) contractual liability insurance
against all cost, expense and liability arising out
of or based upon any and all claims, accidents,
injuries and damages referred to in clauses (a), (b),
(c) and (d) of Section 19.01 hereof;
(iii) provide and keep in force workers'
compensation providing statutory benefits for all persons
employed by Tenant at or in connection with the Premises;
(iv) provide and keep in force rent insurance on
an "All Risk of Physical Loss" basis in an amount not less
than the sum of (a) the Base Rent then payable hereunder for a
period of one year, (b) an amount equal to the Impositions for
a like period, and (c) an amount equal to the insurance
premiums payable under this Lease for a like period;
(v) provide and keep in force such other
insurance and coverages (including coverage for loss or damage
as a result of acts of terrorism) and in such amounts as may
from time to time be reasonably required by Landlord or a
holder of a Fee Mortgage against such other insurable hazards
and amounts as are at the time are commonly insured against by
prudent owners of like buildings and improvements in the
Greater Metropolitan Denver area located in similar
surroundings, and, in that connection, Landlord may require
changes in the forms, types and amounts of insurance pursuant
to this Section 7.01, or may add to, modify or delete other
requirements, but subject to Tenant's right to self-insure in
accordance with Section 7.07 hereof.
(b) Whenever, under the terms of this Lease, Tenant is
required to maintain insurance, Landlord shall be an additional insured in all
such insurance policies. If the Premises shall be subject to any Fee Mortgage,
the public liability insurance shall, if required by such Fee Mortgage, name the
Fee Mortgagee as an additional insured, and all other insurance provided
hereunder shall name the Fee Mortgagee as an additional insured under a standard
"noncontributory mortgagee" endorsement or its equivalent. In any case where
Landlord is required pursuant to Sections 7.01(a) hereof to be reasonable, any
dispute as to the reasonableness of Landlord's requirement shall be determined
by arbitration pursuant to Article 35.
7.02 (a) The loss under all policies required by any provision
of this Lease insuring against damage to the Building by fire or other casualty
shall be payable:
(i) to Tenant, as trustee, if the amount thereof
is less than $1,000,000, or
(ii) to Escrow Agent to be held in escrow, if the
amount thereof is $1,000,000 or more, provided, however, if
(A) Tenant then is the originally named Tenant - Nordstrom,
Inc., a Washington corporation or its Affiliate, (B) Tenant
qualifies to self-insure pursuant to Section 7.07, and (C) no
Default has then occurred and remains uncured, then, Tenant
may retain all insurance proceeds (if any) as trustee.
If a loss shall be payable to Tenant, as trustee, Tenant, provided that
there is no Default by Tenant hereunder (1) shall hold the insurance proceeds
with respect to such loss in trust for the sole purpose of paying the cost of
the Restoration, and (2) shall apply such proceeds first to the payment in full
of the cost of the Restoration before using any part of the same for any other
purpose. Tenant shall give Landlord notice of completion of the Restoration
within ten (10) days thereafter. If Landlord makes no claim within one hundred
eighty (180) days after such notice is given that the Restoration has not been
properly completed, then Tenant may pay over to itself the unapplied proceeds
and the trust obligations hereunder with respect to such proceeds shall
terminate. Notwithstanding the foregoing, if there is a Default by Tenant
hereunder, Tenant shall pay (or assign) all insurance proceeds with respect to
such loss to Escrow Agent; provided, however, if such Default is cured by Tenant
within the applicable cure period (i.e., prior to the occurrence of an Event of
Default with respect to such Default), and the other preconditions contained in
(A) and (B) of clause (ii) of Section 7.02(a) are satisfied, then, Escrow Agent
shall deliver such insurance proceeds held by Escrow Agent (or the balance of
such insurance proceeds which have not theretofore been disbursed by Escrow
Agent with respect to such loss) to Tenant, as trustee as aforesaid.
(b) All Insurance Policies shall be in such form and
shall be issued by such responsible companies licensed and authorized to do
business in the State of Colorado as are reasonably acceptable to Landlord. All
such companies shall have a Best's Key Rating Guide rating of not less than AX.
All policies referred to in this Lease shall be procured, or caused to be
procured, by Tenant, at no expense to Landlord, and for periods of not less than
one (1) year. A certificate of insurance evidencing the coverage required with
respect
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to each such policy, shall be delivered to Landlord immediately upon receipt
from the insurance company or companies, except that if any insurance carried by
Tenant is effected by one or more blanket policies, then with respect to such
insurance, certificates of insurance evidencing the coverage required relating
to the Premises shall be so delivered to Landlord. The certificate of insurance
evidencing the Property Insurance coverage shall be in the form of XXXXX 27 (or
equivalent). The certificate of insurance evidencing the Liability Insurance
coverage will contain the following attachments from the original policy:
Declaration Page, Carrier, Effective Date, primary general liability
endorsement, blanket additional insured endorsement, primary and
non-contributory endorsement, and an additional insured endorsement specifically
identifying Landlord (or the Fee Mortgagee as the case may be) as an additional
insured under the policy. In addition thereto, on the Commencement Date hereof,
Tenant shall deliver to Landlord certificates of the insurance required
hereunder together with a certification by Tenant's insurance broker that the
premium for each policy has been paid or provided for to the satisfaction of the
insurer. Certificates of insurance with respect to blanket policies, of new or
renewal policies replacing any policies expiring during the Term shall be
delivered upon request, together with a certification by Tenant's insurance
broker that the premium for each policy has been paid or provided for to the
satisfaction of the insurer for at least the first year of the term of such
policies. During the term of such policies, upon request, Tenant shall deliver
to Landlord a certification by Tenant's insurance broker that the premium for
each policy has been paid or provided for to the satisfaction of the insurer for
at least the next year of the term of the policy. Premiums on policies shall not
be financed in any manner whereby the lender, on default or otherwise, shall
have the right or privilege of surrendering or cancelling or requesting the
surrender or cancellation of the policies, provided, however, that premiums may
be paid in such installments as are permitted pursuant to the provisions of the
applicable policy so long as payment by installments will not allow the insurer
thereunder to cancel said policy.
(c) Tenant and Landlord shall cooperate in connection
with the collection of any insurance moneys that may be due in the event of
loss, and Tenant and Landlord shall execute and deliver such proofs of loss and
other instruments which may be required for the purpose of obtaining the
recovery of any such insurance moneys.
(d) Tenant shall not carry separate insurance concurrent
in form or contributing in the event of loss with that required by this Lease to
be furnished by Tenant, unless Landlord and each Fee Mortgagee are included
therein as additional insureds with any loss payable as provided in this Lease.
Tenant shall immediately notify Landlord of the carrying of any such separate
insurance and shall cause the same to be delivered as required in this Lease.
(e) Tenant shall not violate or permit to be violated any
of the conditions or provisions of any of the Insurance Policies, and Tenant
shall so perform and satisfy or cause to be performed and satisfied the
requirements of the companies writing such policies so that at all times
companies of good standing, satisfactory to Landlord (as provided in Section
7.02(b) hereof), shall be willing to write and continue such insurance.
(f) Each Insurance Policy with respect to Property
Insurance and each certificate or memorandum therefor issued by the insurer
shall contain (i) a provision that no act of Tenant shall affect or limit the
obligation of the insurer to pay Landlord or any Fee Mortgagee named in the
Insurance Policy as an additional insured or loss payee the amount of any loss
sustained, (ii) an agreement by the insurer that such policy shall not be
cancelled or modified without at least thirty (30) days prior written notice to
Landlord and each Fee Mortgagee named in the Insurance Policy as an additional
insured or loss payee, and (iii) a waiver of subrogation by the insurer of any
right to recover the amount of any loss resulting from the negligence of
Landlord or its agents, employees or licensees.
(g) Landlord shall not be limited in the proof of any
damages which Landlord may claim against Tenant arising out of or by reason of
Tenant's failure to provide and keep in force insurance, as aforesaid, to the
amount of the insurance premium or premiums not paid or incurred by Tenant and
which would have been payable under such insurance, but Landlord shall also be
entitled to recover as damages for such breach the uninsured amount of any loss,
to the extent of any deficiency in the insurance required by the provisions of
this Lease, and damages, costs and expenses of suit suffered or incurred by
reason of damage to, or destruction of, the Premises occurring during any period
when Tenant shall have failed or neglected to provide insurance as aforesaid.
(h) Each of Landlord and Tenant hereby waives any and
every claim for recovery from the other for any and all loss or damage to the
Land or the Building or to the contents thereof, whether such loss or damage is
due to the negligence of Landlord or Tenant or their respective agents or
employees, which loss or damage is insured pursuant to this Lease by valid and
collectible insurance policies and then only to the extent of the proceeds
collected or collectible under such insurance policies; provided, however, that
the foregoing waiver shall not be operative in any case where the effect thereof
is to invalidate any insurance coverage of the waiving party or increase the
cost of such insurance coverage; provided further, that Landlord and Tenant each
agree to give written notice of the terms of this mutual waiver to each
insurance company which has issued, or in the future may issue, policies of
physical damage to it.
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7.03 Intentionally Omitted.
7.04 The insurance required by this Lease, at the option of Tenant,
may be effected by blanket and/or umbrella policies issued to Tenant covering
the Premises and other properties owned or leased by Tenant, provided that the
policies otherwise comply with the provisions of this Lease and allocate to the
Premises the specified coverage, without possibility of reduction or coinsurance
by reason of, or damage to, any other premises covered therein.
7.05 All insurance provided for under Section 7.01 may contain loss
deductible clauses in such maximum amounts as Landlord reasonably shall approve.
In the event of a dispute between Landlord and Tenant as to the amount which may
be deductible under a policy, such dispute shall be determined by arbitration in
the manner provided in Article 35 hereof. If Tenant qualifies to self-insure
pursuant to Section 7.07, Tenant may establish the amount of deductibles for any
insurance Tenant may choose to carry in Tenant's sole discretion.
7.06 In the event Tenant fails to procure, maintain and/or pay for
the insurance required by this Lease, at the times and for the duration
specified in this Lease then, Landlord shall have the right, but not the
obligation at any time and from time to time, and without notice, to procure
such insurance and/or pay the premiums for such insurance, in which event,
Tenant shall repay Landlord immediately upon demand all sums so paid by
Landlord, together with interest thereon and any costs or expenses incurred by
Landlord in connection therewith, without prejudice to any other rights and
remedies of Landlord under this Lease.
7.07 So long as the Tenant under this Lease is the originally named
Tenant - Nordstrom, Inc., a Washington corporation or an Affiliate of Tenant,
any insurance carried or required to be carried by Tenant pursuant to this
Lease, at Tenant's option, may be carried under an insurance policy(ies) of
self-insurance provided (i) Tenant has a net tangible net worth exceeding
$300,000,000.00 as evidenced by certified financial statements included in
Tenant's then most current annual report to shareholders which is available on
the Internet and will be delivered to Landlord upon request; and (ii) such
originally-named Tenant or its Affiliate, as the case may be, is then rated,
without regard to qualification of such rating by symbols such as "+" or "-",
"Baa2" or better by Xxxxx'x Investors Service, and "BBB" or better by Standard's
& Poor Rating Service. If Tenant elects to self-insure, Tenant shall provide
insurance coverage to the same extent as if the insurance required by this Lease
were in effect and carried by a commercial insurance company.
ARTICLE 8
USE OF PROPERTY INSURANCE PROCEEDS
8.01 If all or any part of the Building shall be destroyed or
damaged in whole or in part by fire or other casualty (whether or not insured)
of any kind or nature, ordinary or extraordinary, foreseen or unforeseen, Tenant
shall give Landlord immediate notice thereof (except with respect to partial
damage the reasonably estimated cost of repair of which shall be less than
$1,000,000), and Tenant, whether or not such damage or destruction shall have
been insured or insurable, and whether or not insurance proceeds, if any, shall
be sufficient for the purpose, and whether or not payment of insurance proceeds
has been withheld as a result of a Default as provided in Article 7 hereof and
this Article 8, with reasonable diligence (subject to Unavoidable Delays) shall
repair, alter, restore, replace and rebuild (collectively, "Restore") the same,
at least to the extent of the value and as nearly as practicable to the
character of the Building existing immediately prior to such occurrence. Any
insurance proceeds remaining after completion of Restoration, less any amounts
required to satisfy any then uncured Default (which amounts shall be paid to
Landlord) shall be the property of Tenant. If Tenant shall fail or neglect to
Restore with reasonable diligence (subject to Unavoidable Delays) the Building
or the portion thereof damaged or destroyed, or, having so commenced such
Restoration, shall fail to complete the same with reasonable diligence (subject
to Unavoidable Delays) in accordance with the terms of this Lease, Landlord may
complete such repairs, alterations, replacements and rebuilding (collectively,
"Restoration"), at Tenant's expense. Upon Landlord's election to so complete the
Restoration, Tenant shall immediately pay to Landlord all insurance proceeds
which shall have been received by Tenant (or if Tenant self-insures, Tenant
shall immediately pay to Landlord all amounts for which Tenant self-insured,
which amount shall not be less than the proceeds which would have been payable
if Tenant had procured the insurance required pursuant to Section 7.01), minus
those amounts, if any, which Tenant shall have applied to the Restoration, and
if such sums are insufficient to complete the Restoration, Tenant, on demand,
shall pay the deficiency to Landlord. Each Restoration shall be done in
accordance with the provisions of this Lease. Notwithstanding anything contained
in Section 7.07 of this Lease to the contrary, if, at the time the Building is
destroyed or damaged and a Default has occurred and then remains uncured, then
notwithstanding Tenant's right to self-insure pursuant to Section 7.07, Tenant
shall immediately pay to Escrow Agent, to be held in escrow, an amount equal to
the proceeds which would have been paid by a third-party insurer with respect to
the subject loss as if such loss had been insured in accordance with Tenant's
obligations under Section 7.01. if, at the time the Building is destroyed or
damaged, Tenant qualifies to self-insure pursuant to Section 7.07 of this Lease,
and no uncured Default exists, then Tenant may hold any insurance proceeds and
self-insurance proceeds with
12
respect to such damage or destruction, and any proceeds so held by Tenant shall
be held in trust to be applied toward the Restoration. Notwithstanding anything
contained in this Section 8.01, if, at the time the Building is destroyed or
damaged, a Default has occurred, but is subsequently cured by Tenant within the
applicable cure period (i.e., prior to the occurrence of an Event of Default
with respect to such Default) and the other preconditions contained in (A) and
(B) of clause (ii) of Section 7.02(a) hereof are satisfied, then, Escrow Agent
shall deliver such insurance proceeds held by Escrow Agent (or the balance of
such insurance proceeds which have not theretofore been disbursed by Escrow
Agent with respect to such loss) to Tenant, as trustee as aforesaid.
8.02 Subject to the provisions of Section 8.03, Escrow Agent shall
pay over to Tenant from time to time, upon the following terms, any moneys which
may be received by Escrow Agent from insurance provided by Tenant (other than
rent insurance) (collectively, the "Restoration Funds"); provided, however, that
Escrow Agent, before paying such moneys over to Tenant, shall be entitled to
reimburse itself and Landlord therefrom to the extent, if any, of the expenses
paid or incurred by Escrow Agent or Landlord in the collection of such moneys.
Escrow Agent shall pay to Tenant the Restoration Funds for the purpose of
Restoration to be made by Tenant to Restore the Building to a value which shall
be not less than the value prior to such fire or other casualty. Such
Restoration shall be done in accordance with, and subject to, the provisions of
Article 13, including, without limitation, the maintenance of the insurance
coverage referred to in Section 13.01(d). Prior to the making of any Restoration
(except with respect to partial damage the reasonably estimated cost of
Restoration of which shall be less than $1,000,000), Tenant shall furnish
Landlord with an estimate of the cost of such Restoration, prepared by a
licensed professional engineer or registered architect approved by Landlord,
which approval shall not be unreasonably withheld or delayed. Unless Tenant
qualifies to self-insure pursuant to Section 7.07 and Tenant was not otherwise
required to deposit with Escrow Agent pursuant to Section 8.01, all amounts for
which Tenant has been entitled to self-insure, then, subject to Section 8.03
hereof, the Restoration Funds shall be paid to Tenant from time to time
thereafter in installments as the Restoration progresses upon application to be
submitted from time to time by Tenant to Escrow Agent and Landlord showing the
cost of work, labor, services, materials, fixtures and equipment incorporated in
the Restoration, or incorporated therein since the last previous application,
and paid for by Tenant or then due and owing. Subject to contests permitted
under Section 16.02 hereof, if any vendors', mechanics', laborers', or
materialmen's lien is filed against the Premises or any part thereof, Tenant
shall not be entitled to receive any further installment until such lien is
satisfied or otherwise discharged, provided, however, so long as Tenant
qualifies to self-insure pursuant to Section 7.07, if Tenant indemnifies
Landlord against the effect of the lien and contests the lien diligently and in
good faith, Tenant may continue to receive such payments so long as the lien is
satisfied or discharged prior to its disclosure. The amount of any installment
to be paid to Tenant shall be such proportion of the total Restoration Funds as
the cost of work, labor, services, materials, fixtures and equipment theretofore
incorporated by Tenant into the Restoration bears to the total estimated cost of
the Restoration by Tenant, less (a) all payments heretofore made to Tenant out
of the Restoration Funds, and (b) ten percent (10%) of the amount so determined.
Upon completion of and payment for the Restoration by Tenant, the balance of the
Restoration Funds shall be paid over to Tenant. If the estimated cost of any
Restoration (i) is equal to or greater than $1,000,000, and (ii) exceeds the
insurance proceeds received by Landlord, then, prior to the commencement of such
Restoration or thereafter if at any time it is determined by Landlord that the
cost to complete the Restoration exceeds the unapplied portion of such insurance
proceeds, and if Tenant does not qualify to self-insure pursuant to Section 7.07
of this Lease, Tenant shall from time to time immediately deposit with Escrow
Agent a bond, cash, irrevocable letter of credit or other security reasonably
satisfactory to Landlord in the amount of such excess, to be held and applied by
Escrow Agent in accordance with the provisions of Section 8.02, as security for
the completion of the work, free of public improvement, vendors', mechanics',
laborers' or materialmen's statutory or other similar liens. If Landlord makes
the Restoration at Tenant's expense, as provided in Section 8.01, then, as
provided above with respect to Tenant, Escrow Agent shall pay over the
Restoration Funds to Landlord, from time to time, upon Landlord's application
accompanied by a certificate containing the statements required under clauses
(i), (ii) and (iii) of Section 8.03(a), to the extent not previously paid to
Tenant pursuant to this Section 8.02, and Tenant shall pay to Landlord, on
demand, any sums which Landlord certifies to be an estimate of the amount
necessary to complete the Restoration, less the undisbursed Restoration Funds.
8.03 The following shall be conditions precedent to each payment
made to Tenant as provided in Section 8.02 above:
(a) There shall be submitted to Escrow Agent and Landlord
the certificate of the engineer or architect referred to in Section 8.02 hereof
stating (i) that the sum then requested to be withdrawn either has been paid by
Tenant or is justly due to contractors, subcontractors, materialmen, engineers,
architects or other Persons (whose names and addresses shall be stated) who have
rendered or furnished work, labor, services, materials, fixtures or equipment
for the work and giving a brief description of such work, labor, services,
materials, fixtures or equipment and the principal subdivisions or categories
thereof and the several amounts so paid or due to each of said Persons in
respect thereof, and stating in reasonable detail the progress of the
Restoration up to the date of said certificate; (ii) that no part of such
expenditures has been or is being made the basis, in any previous or then
pending request, for the withdrawal of insurance money or has been made out of
the proceeds of insurance received by Tenant; (iii) that the sum then requested
does not exceed ninety percent (90%) of the cost of the work, labor, services,
materials, fixtures and equipment described in the certificate; (iv) that the
balance of the
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Restoration Funds held by Escrow Agent will be sufficient, upon completion of
the Restoration, to pay for the same in full, and stating in reasonable detail
an estimate of the cost of such completion; and (v) appropriate sworn statements
and lien waivers (which comply with the mechanics' lien laws of the State of
Colorado) from all Persons receiving payment under such draw;
(b) There shall be furnished to Landlord a date-down
endorsement, or a similar certificate of a title insurance company reasonably
satisfactory to Landlord, showing that there are no vendors', mechanics',
laborers' or materialmen's or other liens affecting the Premises or any part
thereof in connection with work done, authorized or incurred at or relating to
the Premises which had not been discharged of record, except such as will be
discharged upon payment of the amount then requested to be withdrawn, ,
provided, however, so long as Tenant qualifies to self-insure pursuant to
Section 7.07, if Tenant indemnifies Landlord against the effect of the vendors',
mechanics', laborers' or materialmen's lien and contests the lien diligently and
in good faith, Tenant may continue to receive such payments regardless of the
existence of such lien so long as the lien is satisfied or discharged prior to
its disclosure; and
(c) At the time of making such payment, there is no
Default on the part of Tenant under this Lease; provided, however, this
condition precedent shall be deemed satisfied if Tenant cures such Default
within the applicable cure period.
8.04 This Lease shall not terminate, be forfeited or be affected in
any manner, nor shall there be any reduction or abatement of the Rental payable
hereunder, by reason of damage to or total, substantial or partial destruction
of the Building or any part thereof or by reason of the untenantability of the
same or any part thereof, for or due to any reason or cause whatsoever, or by
reason of the non-payment of insurance proceeds to Tenant as a result of a
Default as provided in Article 7 hereof and this Article 8, and Tenant,
notwithstanding any law or statute present or future, waives any and all rights
to quit or surrender the Premises or any part thereof; and Tenant's obligations
hereunder, including, without limitation, the payment of Rental hereunder, shall
continue as though the Building had not been damaged or destroyed and without
abatement, suspension, diminution or reduction of any kind.
8.05 Notwithstanding anything contained in this Article 8 to the
contrary, so long as no Event of Default has occurred, if (i) all or any part of
the Building shall be destroyed or damaged to such an extent that it ceases to
be usable for the operation of Tenant's business therein, (ii) Tenant reasonably
estimates that the time required to substantially complete Restoration will
exceed three hundred sixty (360) days from the date that the insurance claims
arising from such damage are settled, and (iii) Tenant procures a report from a
licensed professional engineer or registered architect setting forth the basis
for such estimate, then, Tenant shall have the right and option, upon notice to
Landlord, to terminate this Lease as of the date of such damage. In order for
Tenant to exercise such right of termination, Tenant must give such notice to
Landlord within thirty (30) days after the occurrence of such destruction or
damage, which notice shall contain a copy of the report by the licensed
professional engineer or registered architect, and Tenant shall pay or cause to
be paid to Landlord all proceeds of insurance payable to Tenant in connection
with such destruction or damage, plus all deductibles under the applicable
insurance policies and an amount equal to the amount by which Tenant has
self-insured with respect to such destruction or damage. If Landlord disputes
the findings of Tenant's licensed professional engineer or registered architect
regarding the estimate of the time for substantial completion of the
Restoration, such controversy shall be resolved by arbitration in accordance
with the provisions of Article 35 hereof. Unless this Lease is so terminated,
Tenant shall proceed with reasonable promptness to Restore the Premises in
accordance with this Article 8.
ARTICLE 9
CONDEMNATION
9.01 (a) If, at any time during the Term, the whole or any
Significant Portion of the Premises shall be taken (excluding a partial taking
of the fee interest in the Premises, if after such taking Tenant's rights under
this Lease are not or will not be materially affected) for any public or
quasi-public purpose by any lawful power or authority by the exercise of the
right of condemnation or eminent domain or by agreement among Landlord, Tenant
and those authorized to exercise such right, at Tenant's option, this Lease and
the Term shall terminate and expire on the date of such taking and the Rental
payable by Tenant hereunder shall be apportioned as of the date of such taking.
If Tenant chooses to exercise the option to cancel this Lease provided for
herein, it shall notify Landlord within twenty (20) days after the date that
Tenant receives notice of such taking. The cancellation shall be effective as of
the date of taking but, in all events, after Landlord receives the amounts set
forth in Section 9.01(b).
(b) If the whole or any Significant Portion of the
Premises shall be taken or condemned and Tenant elects to cancel this Lease as
provided for in Section 9.01(a) hereof, Landlord shall be entitled to seek from
the condemning authority the entire award for, or attributable to the value of,
that part of the Premises taken, plus consequential damages, if any, to the
portion of the Premises not so taken. Tenant shall be entitled to maintain an
independent claim for the value of Capital Improvements made by Tenant
subsequent
14
to the Commencement Date and for moving expenses, provided, however, that in no
event shall Tenant maintain or assert any claim for compensation or award
measured by the value of the unexpired Term of this Lease or of the leasehold
estate created hereby, and no claim by Tenant shall cause any decrease or
reduction in the award which would otherwise be due and payable to Landlord.
(c) Each of the parties shall execute and deliver any and
all documents that may be reasonably required in order to facilitate collection
by them of such awards in accordance with the provisions of this Article 9.
(d) For purposes of this Article 9, the "date of taking"
shall be deemed to be the earlier of (i) the date on which actual possession of
the whole or substantially all of the Premises or a part thereof, as the case
may be, is acquired by any lawful power or authority pursuant to the provisions
of applicable federal or state law, or (ii) the date on which title to the
Premises or the aforesaid portion thereof shall have vested in any lawful power
or authority pursuant to the provisions of the applicable federal or state law.
(e) For purposes of this Article 9, a "Significant
Portion" of the Premises shall mean a portion of the Premises, if so taken,
would render the remaining balance of the Premises unable to readily accommodate
a new building (or a restored Building) of a nature similar (in floor plans,
height, configuration, and overall usability) to the Building existing at the
date of such taking. The determination of whether a Significant Portion has been
so taken shall be made by Tenant pursuant to Tenant's reasonable determination
and may take into consideration economic conditions, market conditions,
applicable zoning laws and building regulations then existing or prevailing;
provided, however, if Landlord disputes Tenant's determination as to whether a
Significant Portion of the Premises shall have been taken or condemned, such
controversy shall be resolved by arbitration in accordance with the provisions
of Article 35 hereof.
9.02 If Tenant elects not to exercise the option to cancel this
Lease pursuant to Section 9.01(a) hereof or if less than a Significant Portion
of the Premises are so taken, this Lease and the Term shall continue subject to
an equitable adjustment of the Rental to reflect the reduction of the Premises
resulting from such taking or condemnation. Tenant, shall proceed with
reasonable diligence (subject to Unavoidable Delays) to Restore any remaining
part of the Premises not so taken to complete, rentable, self-contained
architectural units in as good condition and repair and of at least the same
value as prior to the taking. If Tenant elects not to exercise the option to
cancel this Lease pursuant to Section 9.01(a) hereof or if less than a
Significant Portion of the Premises are so taken, the award or awards for such
taking, less the cost of the determination of the amount thereof, shall be paid
to Escrow Agent if the cost of Restoration is equal to $1,000,000 or more,
provided, however, that if Tenant qualifies to self-insure pursuant to Section
7.07 and at such time no Default has occurred which has not been cured, then,
Tenant may hold the entire condemnation award to be used for Restoration of the
Premises, or to Tenant if such cost is less than $1,000,000, or if Tenant
qualifies to self-insure pursuant to Section 7.07. Subject to the provisions and
limitations in this Article 9, Escrow Agent shall make available to Tenant as
much of that portion of the award actually received and held by Escrow Agent, if
any, less all reasonable expenses paid or incurred by Escrow Agent and Landlord
in the condemnation proceedings, as may be necessary to pay the cost of
Restoration of the part of the Building remaining in accordance with Article 8.
Such Restoration, the estimated cost thereof, the payments to Tenant on account
of the cost thereof, Landlord's right to perform the same and Tenant's
obligation with respect to condemnation proceeds held by it, shall be done,
determined, made and governed in accordance with and subject to the provisions
of Articles 8 and 13. Payments to Tenant as aforesaid shall be disbursed in the
manner set forth in Article 8. Any balance of the award held by Landlord after
completion of the Restoration shall be paid to Landlord. If there shall be any
dispute as to the distribution of any award, such dispute shall be resolved by
arbitration in accordance with the provisions of Article 35. Each of the parties
shall execute and deliver any and all documents that may be reasonably required
in order to facilitate collection of the awards. If the portion of the award
made available by Escrow Agent, as aforesaid, is insufficient for the purpose of
paying for the Restoration, Tenant shall nevertheless be required to make the
Restoration and pay any additional sums required for the Restoration.
Notwithstanding anything contained in this Section 9.02, if, at the time of the
subject taking, a Default has occurred, but such Default is cured by Tenant
within the applicable cure period (i.e., prior to the occurrence of an Event of
Default with respect to such Default), and the other conditions to Tenant's
receipt of the award contained in this Section 9.02 have been satisfied, then,
Escrow Agent shall pay the proceeds of the award held by Escrow Agent (or the
balance of such proceeds which have not theretofore been disbursed with respect
to the Restoration) to Tenant.
9.03 If the estimated cost of any Restoration required by the terms
of this Article 9 (i) is equal to or greater than $1,000,000, and (ii) exceeds
the net condemnation award received by Landlord, as determined in the manner set
forth in Section 9.02, then, prior to the commencement of such Restoration or
thereafter if it is determined by Landlord that the cost to complete the
Restoration exceeds the unapplied portion of such award, Tenant shall from time
to time immediately deposit with Escrow Agent a bond, cash, irrevocable letter
of credit or other security reasonably satisfactory to Landlord in the amount of
such excess, to be held and applied by Escrow Agent in accordance with the
provisions of Section 9.02, as security for the completion of the work, free of
public improvement, vendors', mechanics', laborers' or materialmen's statutory
or other similar liens. Notwithstanding the foregoing, if Tenant qualifies to
self-insure pursuant to
15
Section 7.07, and provided that the Tenant under this Lease is then the
originally-named Tenant, Nordstrom, Inc., a Washington corporation or its
Affiliate, Tenant shall not be required to make such deposit.
9.04 Notwithstanding anything to the contrary contained in this
Lease, in case of any governmental action not resulting in the taking or
condemnation of any portion of the Premises but creating a right to compensation
therefor, including, without limitation, the changing of the grade of any street
upon which the Premises abut, then this Lease shall continue in full force and
effect without reduction, diminution or abatement of Rental and the entire award
shall be equitably apportioned between Landlord and Tenant in proportion to the
effect of such condemnation on their respective interests.
9.05 Anything contained herein to the contrary notwithstanding,
Landlord may enter into, settle or compromise any taking or other governmental
action creating a right to compensation in Tenant as provided in this Article 9
without the prior consent of Tenant if the settlement or compromise shall not,
in Landlord's reasonable estimation, adversely affect Tenant's right to
compensation for such taking.
ARTICLE 10
ASSIGNMENT AND SUBLETTING
10.01 (a) Anything contained in this Section 10.01(a) to the
contrary notwithstanding, at any time and from time to time provided that Tenant
shall comply with the provisions of Section 10.01(b), so long as no Event of
Default has occurred and then remains uncured, Tenant may assign this Lease
without Landlord's consent to any Person, provided that Tenant shall not be
released from its obligations under this Lease by any such assignment.
(b) Landlord shall be given thirty (30) days advance
notice of the effective date of such assignment or subletting and there shall be
delivered to Landlord (i) an executed counterpart of the instrument(s) of
assignment (in recordable form) of this Lease or of the Sublease containing,
inter alia, the name and address of the assignee or the subtenants under such
Subleases (the "Subtenants"), as the case may be; and (ii) in the case of an
assignment, an executed instrument of the assumption by said assignee of
Tenant's obligations under this Lease first arising or accruing on or after the
effective date of the assignment.
(c) Anything contained in this Lease to the contrary
notwithstanding, Tenant, without the consent of Landlord, shall have the right
at any time to enter into Subleases of all or portions of the Premises. Landlord
has been advised that Tenant intends to sublease the entire Premises to its
wholly owned subsidiary, Nordstrom fsb, a Federal Savings Bank subsequent to the
Commencement Date. Tenant's obligations under this Lease shall in no event be
affected by such sublease.
10.02 Intentionally Omitted
10.03 Intentionally Omitted.
10.04 Intentionally Omitted.
10.05 The fact that a violation or breach of any of the terms,
provisions or conditions of this Lease results from or is caused by an act or
omission by any of the Subtenants shall not relieve Tenant of Tenant's
obligation to cure the same.
10.06 Landlord, after an Event of Default, may collect rent and all
other sums due under any subleases of the Premises, or any portion thereof
("Subleases"), and apply the net amount collected to the Rental payable by
Tenant hereunder, but no such collection shall be, or be deemed to be, a waiver
of any agreement, term, covenant or condition of this Lease or the acceptance by
Landlord of any Subtenants as Tenant hereunder or a release of Tenant from
performance by Tenant of its obligations under this Lease.
10.07 To secure the prompt and full payment by Tenant of the Rental
and the faithful performance by Tenant of all the other terms and conditions
herein contained on its part to be kept and performed, Tenant hereby assigns,
transfers and sets over unto Landlord, subject to the conditions hereinafter set
forth, all of Tenant's right, title and interest in and to all Subleases, and
hereby confers upon Landlord, its agents and representatives a right of entry
in, and sufficient possession of, the Premises to permit and insure the
collection by Landlord of the Rentals and other sums payable under the
Subleases, and the exercise of the right of entry and qualified possession by
Landlord shall not constitute an eviction of Tenant from the Premises or any
portion thereof; provided, however, that such assignment shall become operative
and effective only if (a) an Event of Default shall occur; (b) this Lease and
the Term shall be cancelled or terminated
16
pursuant to the terms, covenants and conditions hereof; or (c) there occurs
repossession under a sheriff's notice or other judgment, order or decree of a
court of competent jurisdiction, and then only as to such of the Subleases that
Landlord may elect.
10.08 Upon request not more than once during each calendar year
during the Term, Tenant shall deliver to Landlord a schedule of all Subleases
affecting the Premises that have terms that extend for more than two (2) years
from the date of such request. The schedule of Subleases shall include the names
of all such Subtenants, a description of the space sublet, expiration dates,
rentals, pass-throughs, options, special provisions and any such additional
information that Landlord may reasonably request. Tenant shall furnish Landlord
with true copies of all Subleases promptly after execution.
10.09 All Subleases entered into after the date of this Lease shall
be in writing and provide that (a) they are subject and subordinate to this
Lease; (b) the Subtenants will not pay rent or other sums under the Subleases
with Tenant for more than one (1) month in advance; and (c) at Landlord's option
on the termination of this Lease pursuant to Article 24, the Subtenants will
attorn to, or enter into a direct Sublease on identical terms with, Landlord for
the balance of the unexpired term of the Sublease.
10.10 Notwithstanding any assignment or subletting, permitted or
otherwise, the originally-named Tenant hereunder, Nordstrom, Inc., a Washington
corporation, and its successors and assigns, shall at all times remain directly,
primarily and fully responsible and liable for the payment of Rental specified
in this Lease and for compliance with all of its obligations under the terms,
provisions and convents of this Lease.
ARTICLE 11
INTENTIONALLY OMITTED
ARTICLE 12
REPAIRS
12.01 Tenant shall take good care of the Premises, including,
without limiting the generality of the foregoing, the Building, all Equipment,
roofs, foundations and appurtenances thereto, all sidewalks, and curbs in front
of or adjacent to the Premises, and all water, sewer and gas connections, pipes
and mains which service the Premises and which neither City nor a utility
company is obligated to repair and maintain, and shall put, keep and maintain
the Building in good and safe order and working condition, and make all repairs
therein and thereon, interior and exterior, structural and nonstructural,
ordinary and extraordinary, foreseen and unforeseen, necessary to keep the same
in good and safe order and working condition and to comply with all applicable
Requirements, in a manner consistent with the standards of operation and
maintenance employed at buildings and improvements located in the Greater
Metropolitan Denver area of comparable size, age and class as the Building,
normal wear and tear excepted (the "Maintenance Standard"). Tenant shall not
commit or suffer, and shall use all reasonable precaution to prevent, waste,
damage or injury to the Premises. When used in this Lease, the term "repairs"
shall include all alterations, additions, installations, replacements, removals,
renewals and restorations. All repairs made by Tenant shall be at least
consistent with the Maintenance Standard and shall be made in compliance with
all Requirements, as then in force.
12.02 Landlord shall not be required to furnish any services,
utilities or facilities whatsoever to the Premises, nor shall Landlord have any
duty or obligation to make any alteration, change, improvement, replacement,
restoration or repair to, or to demolish, the Building or any other improvement
presently or hereafter located on the Land. Tenant assumes the full and sole
responsibility for the condition, operation, repair, alteration, improvement,
replacement, maintenance and management of the Premises.
ARTICLE 13
CHANGES, ALTERATIONS AND ADDITIONS
13.01 Tenant shall not demolish, replace or materially alter the
Building, or any part thereof, or make any addition thereto, whether voluntarily
or in connection with a repair or Restoration required by this Lease
(collectively, "Capital Improvement"), unless Tenant shall comply with the
following requirements:
(a) Each Capital Improvement, when completed, shall be of
such a character as not to materially reduce the value of the Premises below its
value immediately before construction of such Capital Improvement was commenced.
17
(b) Each Capital Improvement shall be made with
reasonable diligence (subject to Unavoidable Delays) and in a good and
workmanlike manner and in compliance with all applicable permits and
authorizations and the Requirements. No Capital Improvement shall impair the
safety or structural integrity of the Building.
(c) The cost of each Capital Improvement shall be paid in
cash, so that the Premises and the assets of Landlord shall (subject to the
provisions of Section 16.02) at all times be free of liens for work, services,
labor and materials supplied or claimed to have been supplied to the Premises.
No such Capital Improvement shall be commenced unless either (i) Landlord, in
its sole discretion, has determined that Tenant has the financial capability to
cause said Capital Improvement to be completed in accordance with this Lease, or
(ii) Tenant qualifies to self-insure in accordance with Section 7.07 of this
Lease, and provided that the Tenant under this Lease is then the
originally-named Tenant, Nordstrom, Inc., a Washington corporation, or its
Affiliate.
(d) No Capital Improvement shall be undertaken until
Tenant shall have delivered to Landlord insurance policies or abstracts thereof
issued by responsible insurers, bearing notations evidencing the payment of
premiums or accompanied by other evidence satisfactory to Landlord of such
payments, for the insurance required by Article 7 hereof, and, also (i) "all
risk" builders risk property insurance for the full replacement cost of the
subject Capital Improvement on a completed value basis providing primary (and
not contributing) coverage, and including a waiver of all rights of subrogation
against Landlord and all other Indemnified Parties, and (ii) proof of adequate
worker's compensation insurance and employee's liability insurance (either
maintained by Tenant or Tenant's contractors and subcontractors). If, under the
provisions of any casualty, liability or other insurance policy or policies then
covering the Premises, or any part thereof, any consent to such Capital
Improvement is required by the insurance company or companies issuing such
policy or policies, Tenant shall obtain such consents and pay any additional
premiums or charges therefor that may be imposed by said insurance company or
companies.
(e) No Capital Improvement shall be undertaken until
Tenant shall have procured and paid for, insofar as the same may be required
from time to time, all permits and authorizations of all Governmental
Authorities for such Capital Improvement. Landlord shall not unreasonably refuse
to join in the application for such permit or authorization, provided it is made
without cost, liability, obligation or expense to Landlord. Copies of all
required permits and authorizations, certified to be true copies thereof by
Tenant, shall be delivered to Landlord prior to the commencement of any Capital
Improvement.
(f) Each Capital Improvement shall be deemed to have been
substantially completed when Tenant shall furnish Landlord with (i) a
certificate from a licensed professional engineer or registered architect
certifying that such Capital Improvement has been completed substantially in
accordance with the final plans therefor; (ii) a true copy, if available, of the
Certificates of Occupancy for such Capital Improvement; and (iii) a complete set
of as-built drawings with respect to Capital Improvements that cost more than
$1,000,000 and a survey if the exterior footprint of the Building is changed.
(g) No Capital Improvement shall result in the relocation
of the Building or in the alteration or modification of the footprint thereof,
nor in the alteration or modification of the structural design of the Building
without, in each instance, the prior written approval of Landlord, which
approval shall not be unreasonably withhold or delayed by Landlord provided that
(i) Tenant complies with the requirements set forth in paragraphs (a) through
(e), inclusive, of this Section 13.01 with respect to such proposed alteration
or modification, (ii) Tenant submits for Landlord's review plans and
specifications in reasonable detail prepared by a licensed professional engineer
or registered architect delineating the proposed alteration or modification, and
(iii) Tenant furnishes Landlord an estimate of the cost of the proposed work,
certified by the engineer or architect who prepared such plans and
specifications.
ARTICLE 14
REQUIREMENTS OF PUBLIC AUTHORITIES AND
OF INSURANCE UNDERWRITERS AND POLICIES
14.01 Tenant shall promptly comply with any and all applicable
present and future laws, rules, orders, ordinances, directives, authorities
regulations, statutes, requirements, codes, orders, permits and authorizations,
and easements, restrictions, covenants and conditions of record, declarations
and other matters affecting title to the Premises without regard to the nature
of the work required to be done, extraordinary, as well as ordinary, of all
federal, state, city, county or other Governmental Authorities now existing or
hereafter created, of any and all of their departments, agencies, authorities
and bureaus and of any applicable fire-rating bureau or other body exercising
similar functions on behalf of applicable Governmental Authorities
(collectively, "Requirements") affecting the Premises or any sidewalk comprising
a part or in front thereof, or affecting the maintenance, use or occupation of
the Premises, whether or not the same
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involve or require any structural changes or additions in or to the Premises,
and without regard to whether or not such changes or additions are required on
account of any particular use to which the Premises or any part thereof may be
put. Tenant also shall comply with any and all provisions and requirements of
any document of record or casualty, liability or other insurance policy required
to be carried by Tenant under the provisions of this Lease.
14.02 Tenant shall have the right to contest the validity of any
Requirement or the application thereof. During such contest, compliance with any
such contested Requirement may be deferred by Tenant upon the condition that,
before instituting any such proceedings, Tenant shall furnish to Landlord a
surety company bond or a cash deposit in any amount satisfactory to Landlord or
other security satisfactory to Landlord, securing compliance with the contested
Requirement and payment of all interest, penalties, fines, fees and expenses in
connection therewith. The requirement to furnish a bond, cash deposit or other
security to the Landlord shall be deemed waived if Tenant qualifies to
self-insure pursuant to Section 7.07 of this Lease. Any such proceedings
instituted by Tenant shall begin as soon as is reasonably possible after the
issuance of any such contested matters and shall be prosecuted to final
adjudication with reasonable dispatch. Notwithstanding the foregoing, Tenant
promptly shall comply with any such Requirement, and compliance shall not be
deferred if, (i) in Landlord's reasonable estimation, at any time the Premises,
or any part thereof, shall be in danger of being forfeited, lost, adversely
affected or impaired; (ii) such noncompliance shall cause Landlord to be in
default under any Fee Mortgage; or (iii) Landlord shall be in danger of being
subject to criminal and/or civil liability or penalty by reason of noncompliance
therewith. Landlord shall cooperate with Tenant in any such contest to such
extent as Tenant may reasonably request, it being understood, however, that
Landlord shall not be subject to any liability for the payment of any costs or
expenses in connection with any proceedings brought by Tenant.
ARTICLE 15
EQUIPMENT
15.01 Tenant shall not have the right, power or authority to, and
shall not, remove any Equipment from the Premises, except Removable Items,
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld or delayed, unless such Equipment is promptly replaced by
Equipment of at least equal utility and value without regard for depreciation.
Tenant, however, without Landlord's consent, may remove Equipment at any time
and from time to time for repairs, cleaning or other servicing, provided that
Tenant shall return or reinstall same to or in the Premises with reasonable
diligence.
15.02 Tenant shall keep all Equipment in good order and repair and
shall replace the same when necessary with items of at least equal utility and
value as of the date such Equipment was originally installed at the Premises.
ARTICLE 16
DISCHARGE OF LIENS; BONDS
16.01 Except for assignments of this Lease and Subleases permitted
pursuant to the terms of this Lease, Tenant shall not create or cause to be
created any lien, encumbrance or charge upon Tenant's leasehold estate in the
Premises or any part thereof or upon the income therefrom. Tenant shall not
create or cause to be created any lien, encumbrance or charge upon any assets of
Landlord or upon the estate, rights or interest of Landlord in the Premises or
any part thereof. Notwithstanding the foregoing, Tenant shall have the right to
grant necessary easements or enter into reciprocal easements for the
installation, operation and maintenance of underground utility easements to the
extent necessary for the use and operation of the Property or the adjacent data
center owned by Tenant, so long as (i) the easements do not materially reduce
the value of the Premises, (ii) the location of such easements does not cause
any buildings or structures to encroach over the portion of the Premises subject
to such easements, (iii) Tenant, at Tenant's sole cost, shall be responsible for
the installation, maintenance and repair of all lines, conduits and other
improvements located on or under such easement parcels, and will indemnify and
hold harmless Landlord and each Indemnified Party (as hereinafter defined) with
respect thereto, (iv) at Landlord's request, Tenant shall remove all lines,
conduits and other improvements located on or under such easement parcels, (v)
such easements expressly expire or terminate upon the expiration or termination
of this Lease, and (v) Landlord executes a written consent to such easements,
such consent not to be unreasonably withheld, so long as such easements comply
with the requirements required in clauses (i), (ii) and (iii). Tenant shall also
have the right to grant an easement, subject to the requirements set forth in
the immediately preceding sentence, related to the transformers and grid
switching equipment and conduits and lines with respect thereto which, as of the
date of this Lease, are wholly or partially located on the Land and which serve
the Premises and the adjacent data center, or either of them. Landlord shall
join in the grant of any such easements and any Fee Mortgagee shall subordinate
its lien to the lien of any such easements.
16.02 If any mechanics', laborers' or materialmen's or any other
lien, charge or encumbrance at any time shall be filed against the Premises or
any part thereof, or against any assets of Landlord, then Tenant, within thirty
(30) days after actual notice of the
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filing thereof, or such shorter period as may be required by statute, shall
cause the same to be discharged of record by payment, deposit, bond, order of a
court of competent jurisdiction or otherwise. If Tenant shall fail to cause such
lien to be discharged of record within the period aforesaid, and if such lien
shall continue for an additional ten (10) days after notice by Landlord to
Tenant, then, in addition to any other right or remedy, Landlord may, but shall
not be obligated to, discharge the same of record, or Landlord shall be
entitled, if Landlord so elects, to compel the prosecution of an action for the
foreclosure of such lien by the lienholder and to pay the amount of the judgment
in favor of the lienholder with interest, costs and allowances. Any amount so
paid by Landlord, including all costs and expenses incurred by Landlord in
connection therewith, together with interest thereon at the Late Charge Rate,
from the respective dates of Landlord's making of the payment or incurring of
the costs and expenses, shall constitute Rental payable by Tenant under this
Lease and shall be paid by Tenant to Landlord on demand. Notwithstanding the
foregoing provisions of this Section 16.02, Tenant shall not be required to
discharge of record any such lien if Tenant is in good faith contesting the same
and has furnished a cash deposit, an irrevocable letter of credit or a surety
bond or other such security reasonably satisfactory to Landlord in an amount
sufficient to pay 150% of such lien along with all interest and penalties
thereon. If Tenant qualifies to self-insure pursuant to Section 7.07, and
provided that the Tenant under this Lease is the originally-named Tenant,
Nordstrom, Inc., a Washington corporation, or its Affiliate, Tenant's agreement
to indemnify Landlord, and any title insurance company insuring title to the
Premises, against the effect of such lien shall be security satisfactory to
Landlord for Tenant's contest of such lien.
16.03 Nothing in this Lease contained shall be deemed or construed
in any way as constituting the consent or request of Landlord, express or
implied, by inference or otherwise, to any contractor, subcontractor, laborer or
materialman for the performance of any labor or the furnishing of any materials
for any specific improvement, alteration to or repair of the Premises or any
part thereof, nor as giving Tenant any right, power or authority to contract for
or permit the rendering of any services or the furnishing of materials that
would give rise to the filing of any lien against the Premises or any part
thereof or any assets of Landlord. Notice is hereby given, and Tenant shall
cause all Construction Agreements to provide that, to the extent enforceable
under applicable law, Landlord shall not be liable for any work performed or to
be performed at the Premises for Tenant or any Subtenant or for any materials
furnished or to be furnished at the Premises for any of the foregoing, and that
no mechanics' or other lien for such work or materials shall attach to or affect
the estate or interest of Landlord in and to the Premises or any part thereof,
or any assets of Landlord. Before commencing any alterations, additions or
improvements using outside contractors having a cost in excess of $250,000,
Tenant shall notify Landlord of the expected commencement and completion dates
of the work; provide notice of the names and addresses of the contractors; and
permit Landlord to post a notice of non-liability, which Tenant shall ensure
remains posted during any such construction.
16.04 Tenant shall have no power to do any act or make any contract
which may create or be the foundation for any lien, charge, mortgage or other
encumbrance upon the estate or assets of Landlord or of any interest of Landlord
in the Premises.
ARTICLE 17
NO REPRESENTATIONS BY LANDLORD
Tenant acknowledges that Tenant, prior to the date of this Lease, was
occupying the entire Premises and, as a result, Tenant is fully familiar with
the Premises, the physical condition thereof and the items set forth in Exhibit
B. Tenant accepts the Premises in the existing condition and state of repair in
an "as-is," "where-is" condition, with all faults, and, except as otherwise
expressly set forth in this Lease, no representations, statements or warranties,
written or oral, express or implied, have been made by or on behalf of Landlord
in respect of the Premises, the status of title thereof, the physical condition
thereof, the zoning or other laws, regulations, rules and orders applicable
thereto, any Impositions or the use that may be made of the Premises, that
Tenant has relied on no such representations, statements or warranties, and that
Landlord shall in no event whatsoever be liable for any latent or patent defects
in the Premises.
ARTICLE 18
LANDLORD NOT LIABLE FOR INJURY OR DAMAGE, ETC.
18.01 Landlord shall not in any event whatsoever be liable for any
injury or damage to Tenant or to any other Person happening in, on or about the
Premises and its appurtenances, nor for any injury or damage to the Premises or
to any property belonging to Tenant or any other Person which may be caused by
any fire or breakage or by any other cause whatsoever or by the use, misuse or
abuse of the Building (including, but not limited to, any of the common areas
within the Building, Equipment, elevators, hatches, openings, installations,
stairways, hallways or other common facilities) or the streets or sidewalk area
within the Premises or which may arise from any other cause whatsoever, unless
caused by the willful misconduct of Landlord, its officers, agents, employees or
licensees.
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18.02 Landlord shall not be liable to Tenant or to any other Person
for any failure of water supply, gas, telephone or electric current, nor for any
injury or damage to any property of Tenant or of any other Person or to the
Premises caused by or resulting from gasoline, oil, steam, gas or electricity or
hurricane, tornado, flood, wind or similar storms or disturbances, or water,
rain, sleet, ice or snow which may leak or flow from the street, sewer, gas
mains or subsurface area or from any part of the Premises, or leakage of
gasoline or oil from pipes, storage tanks, appliances, sewers or plumbing works
therein, or from any other place or from any other cause, nor for interference
with light or other incorporeal hereditaments by anybody, or caused by any
public or quasi-public work, unless any of the foregoing results from the
willful misconduct of Landlord, its officers, agents, employees or licensees.
ARTICLE 19
INDEMNIFICATION OF LANDLORD
19.01 Tenant shall not do or permit any act or thing to be done upon
the Premises which may subject Landlord to any liability or responsibility for
injury, damage to Persons or property, or to any liability by reason of any
violation of law or of any Requirement, and shall exercise such control over the
Premises so as to fully protect Landlord against any such liability. Tenant
shall indemnify and save Landlord and any agent, beneficiary, contractor,
director, employee, lessor, mortgagee, officer, parent, partner, shareholder and
trustee of Landlord (each an "Indemnified Party") harmless from and against any
and all liabilities, suits, obligations, fines, damages, penalties, claims,
costs, charges and expenses, including, without limitation, engineers',
architects' and attorneys' fees, court costs and disbursements, which may be
imposed upon or incurred by or asserted against any Indemnified Party by reason
of any of the following occurring during the Term:
(a) any demolition or razing or construction of the
Building or any other work or thing done in, on or about the Premises or any
part thereof;
(b) any use, nonuse, possession, occupation, alteration,
repair, condition, operation, maintenance or management of the Premises or any
part thereof or of any sidewalk or curb adjacent thereto;
(c) any act or failure to act on the part of Tenant or
any Subtenant or any of its or their respective officers, agents, employees or
licensees;
(d) any accident, injury (including death at any time
resulting therefrom) or damage to any Person or property occurring in, on or
about the Premises or any part thereof or in, on or about any sidewalk or curb
adjacent thereto;
(e) any failure on the part of Tenant to pay Rental or to
perform or comply with any of the covenants, agreements, terms or conditions
contained in this Lease on Tenant's part to be performed or complied with;
(f) any lien or claim which may be alleged to have arisen
against or on the Premises, or any lien or claim which may be alleged to have
arisen out of this Lease and created or permitted to be created by Tenant
against any assets of Landlord under the laws of the State of Colorado or of any
other Governmental Authority, or any liability which may be asserted against
Landlord with respect thereto;
(g) any failure on the part of Tenant to keep, observe
and perform any of the terms, covenants, agreements, provisions, conditions or
limitations contained in the Subleases or other contracts and agreements
affecting the Premises on Tenant's part to be kept, observed or performed; and
(h) any contest permitted pursuant to the provisions of
Articles 4, 14, 16 and 26 hereof.
The obligation of Tenant under this Article 19 to indemnify any
indemnified Party shall apply to any injury, damage to Persons or property or
any violation of law claimed subsequent to the Term if such injury, damage or
violation, as the case may be, is the result of any act or omission by Tenant or
by any agent, employee or contractor of Tenant, or by any Person for whom Tenant
may be legally responsible occurring during the Term or any other time during
which Tenant had possession of the Premises or any portion thereof. The
obligation of Tenant under this Article 19 to indemnify any Indemnified Party
shall not apply to any injury or damage to Persons or property the proximate
cause of which is the negligence or willful misconduct of such Indemnified
Party.
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19.02 The obligations of Tenant under this Article 19 shall not be
affected in any way by the absence in any case of covering insurance or by the
failure or refusal of any insurance carrier to perform any obligation on its
part under insurance policies affecting the Premises or any part thereof.
19.03 If any claim, action or proceeding is made or brought against
any Indemnified Party against which it is indemnified pursuant to Section 19.01
hereof, then, upon demand by Landlord, Tenant shall resist or defend such claim,
action or proceedings in Landlord's name, if necessary, by the attorneys for
Tenant or Tenant's insurance carrier (if such claim, action or proceeding is
covered by insurance), otherwise by such attorneys as Landlord shall approve,
which approval shall not be unreasonably withheld or delayed.
19.04 The provisions of this Article 19 shall survive the Expiration
Date with respect to any liability, suit, obligation, fine, damage, penalty,
claim, cost, charge or expense arising out of or in connection with any matter
which is the subject of indemnification under this Article 19.
ARTICLE 20
RIGHT OF INSPECTION
20.01 Tenant shall permit Landlord and Fee Mortgagee and their
respective agents or representatives to enter the Premises at all reasonable
times for the purpose of (a) inspecting the Premises; (b) performing Landlord's
obligations or enforcing Landlord's rights hereunder; (c) determining whether or
not Tenant is in compliance with its obligations hereunder; and (d) in the case
of an emergency (i.e., a condition presenting imminent danger to the health or
safety of Persons or to property), or following an Event of Default, making any
necessary repairs to the Premises and performing any work therein, provided that
in the case of an emergency Landlord shall make a reasonable attempt to
communicate with Tenant to alert Tenant to the necessary repair. Any such entry
by Landlord or Landlord's agents or representatives shall be scheduled in
advance, except in case of emergency, to avoid unreasonable interference with
Tenant's business and the businesses of any subtenants under a Sublease, and
shall be subject to any applicable legal requirements with respect to the
operation of the banking business on the Premises by Nordstrom fsb.
20.02 Nothing in this Article 20 or elsewhere in this Lease shall
imply any duty upon the part of Landlord to do any work, and performance of any
work by Landlord shall not constitute a waiver of Tenant's default in failing to
perform the same. Landlord shall not be liable for inconvenience, annoyance,
disturbance, loss of business or other damage of Tenant or any Subtenant by
reason of making such repairs or the performance of any such work or on account
of bringing materials, tools, supplies and equipment into the Premises during
the course thereof and the obligations of Tenant under this Lease shall not be
affected thereby. To the extent that Landlord undertakes such work or repairs
and such work or repairs shall require interruption of any services to or access
of any Subtenant or the entry into any space covered by a Sublease, such work or
repairs shall be commenced and completed with reasonable diligence, subject to
Unavoidable Delays, and in such a manner as not to unreasonably interfere with
the conduct of business in such space.
ARTICLE 21
LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS
21.01 If Tenant at any time shall fail to pay any Imposition in
accordance with the provisions hereof, or to take out, pay any insurance
premiums for, maintain or deliver any of the insurance policies in the manner
provided for herein, or shall fail to pay any Rental hereunder as and when due,
or perform any other act on its part required to be made or performed hereunder,
then at any time after furnishing five (5) days prior notice to Tenant t,
Landlord, without waiving or releasing Tenant from any obligation of Tenant
contained in this Lease or waiving or releasing any rights of Landlord
hereunder, at law or in equity, may (but shall be under no obligation to) pay
any Imposition, insurance premium, item of Rental or any other sums, costs,
expenses, charges, payments or deposits payable by Tenant hereunder, or perform
any other act on Tenant's part required to be made or performed as provided in
this Lease, and may enter upon the Premises for such purpose and take all such
action thereon as may be necessary therefor.
21.02 All sums paid by Landlord and all costs and expenses incurred
by Landlord in connection with the performance of any such obligation, together
with interest thereon at the Late Charge Rate from the respective dates of
Landlord's making of each such payment or incurring of each such sum, cost,
liability, expense, charge, payment or deposit until the date of actual
repayment to Landlord, shall be paid by Tenant to Landlord on demand as Rental.
Any payment or performance by Landlord pursuant to the foregoing provisions of
this Article 21 shall not be nor be deemed to be a waiver or release of breach
or default of Tenant with respect thereto or of the right of Landlord to
terminate this Lease, institute summary proceedings and/or take such other
action as may be permissible hereunder, at law or in equity if an Event of
Default by Tenant shall have occurred. Landlord shall not be limited in the
proof of any damages which Landlord may
22
claim against Tenant arising out of or by reason of Tenant's failure to provide
and keep insurance in force as aforesaid to the amount of the insurance premium
or premiums not paid, but Landlord also shall be entitled to recover, as damages
for such breach, the uninsured amount of any loss and damage and the costs and
expenses of suit, including, without limitation, reasonable attorneys' fees and
disbursements, suffered or incurred by reason of damage to or destruction of the
Premises or any part thereof, which damage or destruction was required to be
insured against hereunder.
ARTICLE 22
NO ABATEMENT OF RENTAL
Except as may be otherwise expressly provided herein, there shall be no
abatement, diminution or reduction of Rental payable by Tenant hereunder or of
the other obligations of Tenant hereunder under any circumstances. The parties
intend that the obligations of Tenant hereunder shall be separate and
independent covenants and agreements and shall continue unaffected unless such
obligations shall have been modified or terminated pursuant to an express
provision of this Lease.
ARTICLE 23
PERMITTED USE: NO UNLAWFUL OCCUPANCY;
OPERATION OF THE PREMISES
23.01 Subject to the provisions of law and this Lease, Tenant shall
be permitted to occupy the Premises in accordance with the Certificates of
Occupancy for the Premises in effect from time to time during the Term for use
as a three-story office building together with normal uses incidental thereto
and for no other use or purpose (the "Permitted Use").
23.02 Tenant shall not use or occupy the Premises or any part
thereof, or permit or suffer the Premises or any part thereof to be used or
occupied for any unlawful business, use or purpose or in such manner as to
constitute in law or in equity a nuisance of any kind (public or private), or
for any use which might adversely affect the reputation of Landlord or for any
dangerous or noxious trade or business or for any purpose or in any way in
violation of the Certificates of Occupancy for the Premises in effect from time
to time during the Term or of any Requirement, or which may make void or
voidable any insurance then in force on the Premises. Tenant shall take,
immediately upon the discovery of any such prohibited use, all necessary steps,
legal, equitable and otherwise, to compel the discontinuance of such use, and
Tenant shall exercise all of its rights and remedies against any Subtenants
guilty of such use.
23.03 Tenant shall not suffer or permit the Premises or any portion
thereof to be used by the public without restriction or in such manner as might
reasonably tend to impair title to the Premises or any portion thereof, or in
such manner as might reasonably make possible a claim or claims of adverse usage
or adverse possession by the public, as such, or of implied dedication of the
Premises or any portion thereof.
ARTICLE 24
EVENTS OF DEFAULT AND REMEDIES
24.01 Each of the following events shall be an "Event of Default"
hereunder:
(a) if Tenant shall fail to pay any installment of Base
Rent within five (5) days after notice thereof from Landlord;
(b) if Tenant shall fail to make any other payment of
Rental (other than Base Rent) required to be paid by Tenant hereunder within
twenty (20) days after notice thereof from Landlord to Tenant;
(c) if Tenant shall fail to observe or perform one or
more of the other material terms, conditions, covenants or agreements of this
Lease and such failure shall not be cured by Tenant within thirty (30) days
after written notice thereof by Landlord to Tenant specifying such failure
(unless such failure requires work to be performed, acts to be done or
conditions to be removed which cannot either by their nature or by reason of
Unavoidable Delays reasonably be performed, done or removed, as the case may be,
within such thirty (30) day period, in which case no Event of Default shall be
deemed to exist as long as Tenant shall have commenced curing the same within
such thirty (30) day period and shall continuously prosecute the same to
completion with reasonable diligence, but in any event within ninety (90) days
from such written notice by Landlord);
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(d) to the extent permitted by law, if Tenant shall
admit, in writing, that it is unable to pay its debts as such debts become due;
(e) to the extent permitted by law, if Tenant shall make
an assignment for the benefit of creditors;
(f) to the extent permitted by law, if Tenant shall file
a voluntary petition under Title 11 of the United States Bankruptcy Code, as
amended from time to time, or if such petition is filed against Tenant and an
order for relief is entered, or if Tenant shall file any petition or answer
seeking, consenting to or acquiescing in any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under the
present or any future federal Bankruptcy Code or any other present or future
applicable federal, state or other statute or law, or shall seek or consent to
or acquiesce to or suffer the appointment of any trustee, receiver, custodian,
assignee, sequestrator, liquidator or other similar official of Tenant, or of
all or any substantial part of its properties or of the Premises or any interest
therein of Tenant, or if Tenant shall take any corporate (or partnership) action
in furtherance of any action described in Sections 24.01(d), (e) or (f) hereof;
(g) to the extent permitted by law, if within sixty (60)
days after the commencement of any proceeding against Tenant seeking any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under the present or any future federal bankruptcy code or any
other present or future applicable federal, state or other statute or law, such
proceeding shall not have been dismissed; or if, within one hundred twenty (120)
days after the appointment, without the consent or acquiescence of Tenant, of
any trustee, receiver, custodian, assignee, sequestrator, liquidator or other
similar official of Tenant or of all or any substantial part of its properties
or of the Premises or any interest therein of Tenant, such appointment shall not
have been vacated or stayed on appeal or otherwise, or if, within one hundred
twenty (120) days after the expiration of any such stay, such appointment shall
not have been vacated;
(h) whether or not Rent is being paid, if Tenant shall
vacate or abandon the Premises or any substantial portion thereof, which
vacation or abandonment, in Landlord's reasonable opinion, is deleterious to the
value or reputation of the Premises;
(i) if this Lease or the estate or interest of Tenant
hereunder or any portion thereof (whether by operation of law or otherwise)
shall be assigned, subleased, transferred, mortgaged or encumbered without
compliance with the provisions of this Lease applicable thereto; or
(j) if a levy under execution or attachment shall be made
against Tenant or its interest in the Premises or any part thereof and such
execution or attachment shall not be vacated or removed by court order, bonding
or otherwise within a period of sixty (60) days.
24.02 If an Event of Default shall occur, Landlord may elect to
proceed by appropriate judicial proceedings, either at law or in equity, to
enforce the performance or observance by Tenant of the applicable provisions of
this Lease and/or to recover damages for breach thereof.
24.03 (a) If any Event of Default described in Sections 24.01
(c) through (j) shall occur and Landlord, at any time thereafter, at its option,
gives notice to Tenant stating that this Lease and the Term shall expire and
terminate on the date specified in such notice, which date shall not be less
than ten (10) days after the giving of such notice, and if, on the date
specified in such notice, Tenant shall have failed to cure the Default which was
the basis for the Event of Default, then this Lease and the Term and all rights
of Tenant under this Lease shall expire and terminate as if the date specified
in the notice given pursuant to this Section 24.03 were the date herein
definitely fixed for the expiration of the Term, and Tenant immediately shall
quit and surrender the Premises and the provisions of Article 32 shall apply,
but Tenant shall remain liable as hereinafter provided. Anything contained
herein to the contrary notwithstanding, if such termination shall be stayed by
order of any court having jurisdiction over any proceeding described in Section
24.01(f) or 24.01(g) hereof, or by federal or state statute, following the
expiration of any such stay, or if the trustee appointed in any such proceeding,
Tenant or Tenant as debtor-in-possession shall fail to assume Tenant's
obligations under this Lease within the period prescribed therefor by law or
within one hundred twenty (120) days after entry of the order for relief or as
may be allowed by the court, or if said trustee, Tenant or Tenant as
debtor-in-possession shall fail to provide adequate protection of Landlord's
right, title and interest in and to the Premises or adequate assurance of the
complete and continuous future performance of Tenant's obligations under this
Lease as provided in Section 24.15 hereof, then Landlord, to the extent
permitted by law or by leave of the court having jurisdiction over such
proceeding, shall have the right, at its election, to terminate this Lease on
five (5) days' notice to Tenant, Tenant as debtor-in-possession or said trustee,
and upon the expiration of said five (5) day period this Lease shall cease and
expire as aforesaid, and Tenant, Tenant as debtor-in-possession or said trustee,
as the case may be, shall immediately quit and surrender the Premises as
aforesaid.
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(b) If an Event of Default described in Sections 24.01(a)
or (b) shall occur, or this Lease shall be terminated as provided in Section
24.03(a), Landlord, without notice, may dispossess Tenant by summary proceedings
or otherwise and the provisions of Article 32 shall apply.
24.04 If this Lease shall be terminated as provided in Section
24.03(a) hereof and/or Tenant shall be dispossessed by summary proceedings or
otherwise as provided in Section 24.03(b) hereof:
(a) Tenant shall pay to Landlord all Rental payable by
Tenant under this Lease to the date upon which this Lease and the Term shall
have expired and come to an end or to the date of reentry upon the Premises by
Landlord, as the case may be;
(b) Landlord may repair and alter the Premises in such
manner as Landlord may deem necessary or advisable without relieving Tenant of
any liability under this Lease or otherwise affecting any such liability, and/or
let or relet the Premises or any part thereof for the whole or any part of the
remainder of the Term or for a longer period in Landlord's name or as agent of
Tenant, and out of any rent and other sums collected or received as a result of
such reletting Landlord shall: (i) first, pay to itself the cost and expense of
terminating this Lease, re-entering, retaking and repossessing the Premises, or
any part thereof, and repairing the Premises (to the extent necessitated by
Tenant's failure to maintain the Premises as required pursuant to this Lease),
and the cost and expense of removing all Persons and property therefrom,
including in such costs reasonable brokerage commissions, legal expenses and
attorneys' fees, court costs and disbursements; (ii) second, pay to itself the
cost and expense sustained in securing any new tenants and other occupants,
including in such costs reasonable brokerage commissions, legal expenses and
attorneys' fees, court costs and disbursements and other expenses of preparing
the Premises for reletting, and, if Landlord shall maintain and operate the
Premises, the cost and expense of operating and maintaining the Premises; and
(iii) third, pay to itself any balance remaining on account of the liability of
Tenant to Landlord. To the extent permitted by law, Landlord in no way shall be
responsible or liable for any failure to relet the Premises or any part thereof
or for any failure to collect any rent due on any such reletting, and no such
failure to relet or collect rent shall operate to relieve Tenant of any
liability under this Lease or to otherwise affect any such liability;
(c) Tenant shall be liable for and shall pay to Landlord,
as damages, any deficiency (herein referred to as "Deficiency") between the
Rental reserved in this Lease for the period which otherwise would have
constituted the unexpired portion of the Term and the net amount, if any, of
rents collected under any such reletting effected pursuant to the provisions of
Section 24.04(b) for any part of such period (first deducting from the rents
collected under any such reletting all of the payments to Landlord described in
Section 24.04(b) hereof); any such Deficiency shall be paid in installments by
Tenant on the days specified in this Lease for payment of installments of
Rental, and Landlord shall be entitled to recover from Tenant each Deficiency
installment as the same shall arise, and no suit to collect the amount of the
Deficiency for any installment period shall prejudice Landlord's right to
collect the Deficiency for any subsequent installment period by a similar
proceeding; and
(d) whether or not Landlord shall have collected any
Deficiency installments as aforesaid, Landlord shall be entitled to recover from
Tenant, at any time, and Tenant shall pay to Landlord, upon Landlord's demand,
in lieu of any further Deficiencies, as and for liquidated damages (it being
agreed that it would be impracticable or extremely difficult to fix the actual
damage) and not as a penalty or forfeiture, a sum equal to the amount by which
the Rental reserved in this Lease for the period which otherwise would have
constituted the unexpired portion of the Term exceeds the then fair and
reasonable rental value of the Premises for the same period, both discounted to
present worth at the annual rate equal to the Prime Rate plus four percent (4%),
less the aggregate amount of Deficiencies theretofore collected by Landlord
pursuant to the provisions to Section 24.04(c) for the same period; it being
agreed that before presentation of proof of such liquidated damages to any
court, commission or tribunal, if the Premises or any substantial part thereof
shall have been relet by Landlord for the period which otherwise would have
constituted the unexpired portion of the Term, or any part thereof, the amount
of rent reserved upon such reletting shall be deemed, prima facie, to be the
fair and reasonable rental value for the part or the whole of the Premises so
relet during the term of the reletting.
24.05 No termination of this Lease pursuant to Section 24.03(a) or
(b) hereof, and no taking possession of and/or reletting the Premises, or any
part thereof, pursuant to Sections 24.03(b) and 24.04(b), shall relieve Tenant
of its liabilities and obligations hereunder, except as specifically provided
herein, all of which shall survive such expiration, termination, repossession or
reletting except as otherwise specifically provided.
24.06 To the extent not prohibited by law, Tenant hereby waives and
releases all rights now or hereafter conferred by statute or otherwise which
would have the effect of limiting or modifying any of the provisions of this
Article 24. Tenant shall execute, acknowledge
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and deliver any instruments which Landlord may request, whether before or after
the occurrence of an Event of Default, evidencing such waiver or release.
24.07 The Rental payable by Tenant hereunder and each and every
installment thereof, and all reasonable costs (including attorneys' fees, court
costs and disbursements) and other expenses which may be incurred by Landlord in
enforcing the provisions of this Lease or on account of any delinquency of
Tenant in carrying out the provisions of this Lease shall be and hereby are
declared to constitute a valid lien in favor of Landlord upon the interest of
Tenant in this Lease and in the Premises.
24.08 Suit or suits for the recovery of damages, or for a sum equal
to any installment or installments of Rental payable hereunder or any
Deficiencies or other sums payable by Tenant to Landlord pursuant to this
Article 24, may be brought by Landlord at any time and from time to time at
Landlord's election, and nothing herein contained shall be deemed to require
Landlord to await the date whereon this Lease or the Term would have expired had
there been no Event of Default by Tenant and termination.
24.09 Nothing contained in this Article 24 shall limit or prejudice
the right of Landlord to prove and obtain as liquidated damages in any
bankruptcy, insolvency, receivership, reorganization or dissolution proceeding
an amount equal to the maximum allowed by a statute or rule of law governing
such proceeding and in effect at the time when such damages are to be proved,
whether or not such amount shall be greater than, equal to or less than the
amount of the damages referred to in any of the preceding Sections of this
Article 24.
24.10 No receipt of moneys by Landlord from Tenant after the
termination of this Lease, or after the giving of any notice of the termination
of this Lease (unless such receipt cures the Event of Default which was the
basis for the notice), shall reinstate, continue or extend the Term or affect
any notice theretofore given to Tenant, or operate as a waiver of the right of
Landlord to enforce the payment of Rental payable by Tenant hereunder or
thereafter falling due, or operate as a waiver of the right of Landlord to
recover possession of the Premises by proper remedy, except as herein otherwise
expressly provided, it being agreed that after the service of notice to
terminate this Lease or the commencement of any suit or summary proceedings, or
after a final order or judgment for the possession of the Premises, or any part
thereof or interest therein, Landlord may demand, receive and collect any moneys
due or thereafter falling due without in any manner affecting such notice,
proceeding, order, suit or judgment, all such moneys collected being deemed
payments on account of the use and occupancy of the Premises or, at the election
of Landlord, on account of Tenant's liability hereunder.
24.11 Except as otherwise expressly provided herein or as prohibited
by applicable law, Tenant hereby expressly waives the service of any intention
to re-enter provided for in any statute, or of the institution of legal
proceedings to that end, and Tenant, for and on behalf of itself and all persons
claiming through or under Tenant, also waives any and all right of redemption
provided by any law or statute now in force or hereafter enacted or otherwise,
or to restore the operation of this Lease in case Tenant shall be dispossessed
by a judgment or by warrant of any court or judge or in case of reentry or
repossession by Landlord or in case of any expiration or termination of this
Lease, and Landlord and Tenant waive and shall waive trial by jury in any
action, proceeding or counterclaim brought by either of the parties hereto
against the other on any matter whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant, Tenant's use
or occupancy of the Premises, or any claim of injury or damage. The terms
"enter," "re-enter," "entry" or "reentry," as used in this Lease, are not
restricted to their technical legal meaning.
24.12 No failure by either party to insist upon the strict
performance by the other party of any covenant, agreement, term or condition of
this Lease or to exercise any right or remedy consequent upon a breach thereof,
and no payment or acceptance of full or partial Rental during the continuance of
any such breach, shall constitute a waiver of any such breach or of such
covenant, agreement, term or condition. No covenant, agreement, term or
condition of this Lease to be performed or completed with by either party, and
no breach thereof, shall be waived, altered or modified except by a written
instrument executed by the other party. No waiver of any breach shall affect or
alter this Lease, but each and every covenant, agreement, term and condition of
this Lease shall continue in full force and effect with respect to any other
then existing or subsequent breach thereof.
24.13 Subject to Section 39.06, in the event of any breach or
threatened breach by either party of any of the covenants, agreements, terms or
conditions contained in this Lease, the other party shall be entitled to enjoin
such breach or threatened breach and shall have the right to invoke any rights
and remedies allowed at law or in equity or by statute or otherwise, as though
reentry, summary proceedings and other remedies were not provided for in this
Lease.
24.14 Subject to Section 39.06, each right and remedy of Landlord
and Tenant provided for in this Lease shall be cumulative and shall be in
addition to every other right or remedy provided for in this Lease or now or
hereafter existing at law or in equity or by statute or otherwise, and the
exercise or beginning of the exercise by a party of any of one or more of the
rights or remedies provided for in this
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Lease or now or hereafter existing at law or in equity or by statute or
otherwise shall not preclude the simultaneous or later exercise by such party of
any or all other rights or remedies provided for in this Lease or now or
hereafter existing at law or in equity or by statute or otherwise.
24.15 If an order for relief is entered or if a stay of proceeding
or other acts becomes effective in favor of Tenant or Tenant's interest in this
Lease, in any proceeding which is commenced by or against Tenant under the
present or any future applicable federal Bankruptcy Code or any other present or
future applicable federal, state or other statute or law, Landlord shall be
entitled to invoke any and all rights and remedies available to it under such
bankruptcy code, statute, law or this Lease, including, without limitation, such
rights and remedies as may be necessary to adequately protect Landlord's right,
title and interest in and to the Premises or any part thereof and/or adequately
assure the complete and continuous future performance of Tenant's obligations
under this Lease.
24.16 If this Lease shall terminate as a result of or while there
exists an Event of Default, any funds (including the interest, if any, accrued
thereon) then held by Landlord in which the Tenant has an interest may be
applied by Landlord to any damages payable by Tenant (whether provided for
herein or by law or in equity or otherwise) as a result of such termination or
Event of Default, and the balance remaining, if any, shall be paid to Tenant, if
Tenant would be entitled to receive same but for such termination or Event of
Default.
ARTICLE 25
NOTICES
25.01 Whenever it is provided in this Lease that a notice, demand,
request, consent, approval or other communication (each of which is herein
referred to as a "Notice") shall or may be given to or served upon either of the
parties by the other, and whenever either of the parties shall desire to give or
serve upon the other any Notice with respect hereto or the Premises, each such
Notice shall be in writing and, any law or statute to the contrary
notwithstanding, shall not be effective for any purpose unless given or served
as follows:
(a) if given by Landlord, by a nationally recognized
overnight courier service, personal delivery or by mailing the same to Tenant by
certified or registered mail, postage prepaid, return receipt requested,
addressed to Tenant at 0000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000, Attn:
Real Estate Notices, with a copy thereof to 0000 Xxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, XX 00000, Attn: Legal Affairs and/or to such other address(es) and
attorneys as Tenant may from time to time designate by Notice given to Landlord
in the manner set forth below, except that at no time shall Landlord be required
to give, in the aggregate, more than four Notices or copies thereof (not
including the notice set forth in Section 25.03); and
(b) if given by Tenant, by a nationally recognized
overnight courier service, personal delivery or by mailing the same to Landlord
by certified or registered mail, postage prepaid, return receipt requested,
addressed to Landlord at 000 Xxxx Xxxxxxx Xxxx., 00xx Xxxxx, Xxxxxxx, Xxxxxxxx
00000, Attention: Xxxxxx Xxxx, with a copy thereof to Levenfeld Xxxxxxxxxx, 00
Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxxx,
Esq. (Landlord's attorney) and/or to such other address(es) and attorneys as
Landlord may from time to time designate by Notice given to Tenant in the manner
set forth above except that at no time shall Tenant be required to give, in the
aggregate, more than four Notices or copies thereof (not including the notice
set forth in Section 25.03).
25.02 Every Notice shall be deemed to have been given or served upon
receipt or refusal of receipt if delivered personally, if delivered by a
nationally recognized overnight courier service, one (1) Business Day after
deposit with same, or if mailed, on the second Business Day after the same shall
have been deposited in the United States mails in the manner aforesaid.
ARTICLE 26
STREET WIDENING
If at any time during the Term any proceedings are instituted or orders
made by any Governmental Authority for the widening or other enlargement of any
street contiguous to the Premises requiring removal of any projection or
encroachment on, under or above any such street, or any changes or alterations
upon the Premises or any part thereof, or the curbs and sidewalks adjacent
thereto, Tenant promptly shall comply with such requirements, and, on Tenant's
failure to do so, Landlord may comply with the same, and the amount expended
therefor, and any interest, fines, penalties, reasonable engineers', architects'
and attorneys' fees or other expenses incurred by Landlord in effecting such
compliance or by reason of the failure of Tenant so to comply, shall be deemed
to be Rental and shall be payable by Tenant on demand. Tenant shall be permitted
to contest in good faith any proceeding or order for such street widening
instituted or made by any Governmental Authority, provided that during the
pendency of such contest Tenant deposits with Landlord security in amount and
form reasonably satisfactory to Landlord for the performance of the work
required in the event that Tenant's contest should fail. In no
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event shall Tenant permit Landlord to become liable for any criminal and/or
civil liability or penalty as a result of Tenant's failure to comply with
reasonable diligence, subject to Unavoidable Delays, with any of the foregoing
orders. Any taking (as such term is used in Article 9 hereof) by a Governmental
Authority for a street widening or enlargement shall be deemed a partial
condemnation and be subject to the provisions of Article 9 hereof.
ARTICLE 27
SUBORDINATION; ATTORNMENT
27.01 Landlord's interest in this Lease, as the same may be
modified, amended or renewed, shall not be subject or subordinate to any liens
or encumbrances hereafter affecting Tenant's interest in this Lease.
27.02 Provided that any Fee Mortgagee shall execute and deliver to
Tenant an agreement to the effect that, if there shall be a foreclosure of such
Fee Mortgagee and so long as no Event of Default by Tenant shall have
theretofore occurred which remains uncured, this Lease shall be deemed to be a
direct lease between Tenant and the Fee Mortgagee as Landlord, such Fee
Mortgagee will not make Tenant a party defendant to such foreclosure (unless
required by applicable law to do so), nor in any other way foreclose Tenant from
its rights, evict Tenant, disturb Tenant's possession under this Lease, or
terminate or disturb Tenant's leasehold estate or rights hereunder (any such
agreement, or any agreement of similar import, from a Fee Mortgagee being
hereinafter called a "Nondisturbance Agreement"), this Lease shall be subject
and subordinate to each and every such Fee Mortgage which may now or hereafter
affect the Premises, or any portion thereof, and to all renewals, extensions,
supplements, amendments, modifications, consolidations and replacements thereof
or thereto, substitutions therefor, and advances made thereunder, with respect
to which Fee Mortgage, Tenant shall have received a Nondisturbance Agreement. In
confirmation of such subordination, Tenant shall execute and deliver promptly
any certificate that Landlord reasonably may request. Tenant shall not do or
omit to do anything that Tenant is obligated to do under the terms of this Lease
so as to cause Landlord to be in default under any Fee Mortgage.
27.03 If any Fee Mortgagee, or any of its successors or assigns, or
any other person claiming by or through any such Fee Mortgagee or by or through
any foreclosure proceeding of any such Fee Mortgage, shall succeed to the rights
of Landlord under this Lease, Tenant shall attorn to and recognize such
successor as Tenant's landlord under this Lease, and Tenant shall promptly
execute and deliver at any time any instrument that may be necessary to evidence
such attornment. Upon such attornment, this Lease shall continue in full force
and effect as a direct lease between Tenant and such successor Landlord, upon
and subject to all of the then executory terms, covenants and conditions of this
Lease. The provisions of this Section shall be self-operative, and no instrument
of any such attornment shall be required or needed by the holders of any such
Fee Mortgage. In confirmation of any such attornment Tenant shall, at Landlord's
request or at the request of any such Fee Mortgagee, promptly execute and
deliver such further instruments as may be reasonably required by any such Fee
Mortgagee.
27.04 Any Nondisturbance Agreement shall be made on the condition
that neither the Fee Mortgagee, nor anyone claiming by, through or under such
Fee Mortgagee, shall be:
(a) liable for any act or omission of any prior Landlord
(including, without limitation, the then defaulting Landlord);
(b) subject to any defenses or offsets that Tenant may
have against any prior Landlord (including, without limitation, the then
defaulting Landlord);
(c) bound by any payment of Rental which Tenant might
have paid for more than the current month to any prior Landlord (including,
without limitation, the then defaulting Landlord);
(d) bound by any covenant to make any payment to Tenant
which was required to be made prior to the time such Fee Mortgagee succeeded to
any prior Landlord's interest;
(e) bound by any obligation to perform any work or to
make improvements to the Premises or any portion thereof; or
(f) accountable for any moneys deposited with any prior
Landlord, except to the extent such moneys are actually received by such Fee
Mortgagee.
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27.05 If required by the Fee Mortgagee, Tenant promptly shall join
in any Nondisturbance Agreement to indicate its concurrence with the provisions
thereof and its agreement, in the event of a foreclosure of such Fee Mortgage,
to attorn to such Fee Mortgagee as Tenant's landlord hereunder. Tenant promptly
shall accept, execute and deliver any Nondisturbance Agreement proposed by any
such Fee Mortgagee which conforms with the provisions of this Article 27.
27.06 Tenant hereby agrees to give to any Fee Mortgagee copies of
all notices of default by Landlord under this Lease at the same time and in the
same manner as and whenever Tenant shall give any such notice of default to
Landlord, and no such notice of default shall be deemed given to Landlord
hereunder unless and until a copy of such notice shall have been so delivered to
such Fee Mortgagee. Such Fee Mortgagee shall have the right to remedy any
default of Landlord under this Lease, or to cause any default of Landlord under
this Lease to be remedied within the cure period afforded to Landlord to remedy
the subject default, and, for such purpose, Tenant hereby grants such Fee
Mortgagee such additional period of time as may be reasonable (not in excess of
60 days) to enable such Fee Mortgagee to remedy, or cause to be remedied, any
such default in addition to the period given to Landlord for remedying, or
causing to be remedied, any such default. Tenant shall accept performance by
such Fee Mortgagee of any term, covenant, condition or agreement to be performed
by Landlord under this Lease with the same force and effect as though performed
by Landlord. No default by Landlord under this Lease shall exist or shall be
deemed to exist (i) as long as such Fee Mortgagee, in good faith, shall have
commenced to cure such default and shall be prosecuting the same to completion
with reasonable diligence, subject to Unavoidable Delays, or (ii) if possession
of the Premises is required in order to cure such default, or if such default is
not susceptible of being cured by such Fee Mortgagee, as long as such Fee
Mortgagee, in good faith, shall have notified Tenant that such Fee Mortgagee
intends to institute proceedings under the Fee Mortgage to acquire possession of
the Premises, and, thereafter, as long as such proceedings shall have been
instituted and shall be prosecuted with reasonable diligence. In the event of
the termination of this Lease by reason of Landlord's default hereunder, upon
such Fee Mortgagee's written request, given within thirty (30) days after any
such termination, Tenant, within fifteen (15) days after receipt of such
request, shall execute and deliver to such Fee Mortgagee or its designee or
nominee a new lease of the Premises for the remainder of the Term of the Lease
upon all of the terms, covenants and conditions of this Lease. Neither such Fee
Mortgagee nor its designee or nominee shall become liable under this Lease
unless and until such Fee Mortgagee or its designee or nominee becomes, and then
only for so long as such Fee Mortgagee or its designee or nominee remains, the
fee owner of the Premises. Such Fee Mortgagee shall have the right, without
Tenant's consent, to foreclose the Fee Mortgage or to accept a deed in lieu of
foreclosure of such Fee Mortgage.
27.07 If the estate of Landlord and the estate of Tenant in the
Premises shall ever be held by the same person, the estate created by and
pursuant to this Lease shall not be merged with any superior estate or other
interest in the Premises.
ARTICLE 28
HAZARDOUS SUBSTANCES
28.01 (a) "Claim" shall mean and include any demand, cause of
action, proceeding or suit and the results thereof (i) for damages (actual or
punitive), losses, injuries to person or property, damages to natural resources,
fines, penalties, expenses, liabilities, interest, contribution or settlement
(including, without limitation, attorneys' fees, court costs and disbursements),
(ii) for the costs of site investigations, feasibility studies, information
requests, health or risk assessments, or Response actions, and (iii) for
enforcing insurance, contribution, or indemnification agreements.
(b) "Environmental Law" shall mean and include all
federal, state and local statutes, ordinances, regulations and rules relating to
environmental quality, health, safety, contamination and clean-up, including,
without limitation, the Clean Air Act, 42 U.S.C. Section 7401 et seq.; the Clean
Water Act, 33 U.S.C. Section 1251 et seq., and the Water Quality Act of 1987;
the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C.
Section 136 et seq.; the Marine Protection, Research, and Sanctuaries Act, 33
U.S.C. Section 1401 et seq.; the National Environmental Policy Act, 42 U.S.C.
Section 4321 et seq.; the Noise Control Act, 42 U.S.C. Section 4901 et seq.; the
Occupational Safety and Health Act, 29 U.S.C. Section 651 et seq.; the Resource
Conservation and Recovery Act ("RCRA"), 42 U.S.C. Section 6901 et seq., as
amended by the Hazardous and Solid Waste Amendments of 1984; the Safe Drinking
Water Act, 42 U.S.C. Section 300f et seq.; the Comprehensive Environmental
Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. Section 9601 et
seq., as amended by the Superfund Amendments and Reauthorization Act, the
Emergency Planning and Community Right-to-Know Act, and Radon Gas and Indoor Air
Quality Research Act; the Toxic Substances Control Act ("TSCA"), 15 U.S.C.
Section 2601 et seq.; the Atomic Energy Act, 42 U.S.C. Section 2011 et seq., and
the Nuclear Waste Policy Act of 1982, 42 U.S.C. Section 10101 et seq.; and the
Colorado environmental protection statutes and laws of the State and state
superlien and environmental clean-up statutes, with implementing regulations and
guidelines. Environmental Laws shall also include all state, regional, county,
municipal and other local laws,
29
regulations and ordinances insofar as they are equivalent or similar to the
federal laws recited above or purport to regulate Hazardous Materials.
(c) "Hazardous Materials" shall mean and include the
following, including mixtures thereof: any hazardous substance, pollutant,
contaminant, waste, by-product, or constituent regulated under CERCLA; oil and
petroleum products and natural gas, natural gas liquids, liquefied natural gas
and synthetic gas usable for fuel; pesticides regulated under the FIFRA;
asbestos and asbestos-containing materials, PCBs and other substances regulated
under the TSCA; source material, special nuclear material, by-product material
and any other radioactive materials or radioactive wastes, however produced,
regulated under the Atomic Energy Act or the Nuclear Waste Policy Act; chemicals
subject to the OSHA Hazard Communication Standard, 29 C.F.R. Section 1910.1200
et seq.; industrial process and pollution control wastes whether or not
hazardous within the meaning of RCRA and any other hazardous substance,
pollutant or contaminant regulated under any other Environmental Law.
(d) "Manage" or "Management" means to generate,
manufacture, process, treat, store, use, re-use, refine, recycle, reclaim, blend
or burn for energy recovery, incinerate, accumulate speculatively, transport,
transfer, dispose of or abandon Hazardous Materials.
(e) "Release" or "Released" shall mean any actual or
threatened spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, presence, dumping, migration from adjacent
property or disposing of Hazardous Materials into the environment, as
"environment" is defined in CERCLA.
(f) "Response" or "Respond" shall mean action taken in
compliance with Environmental Laws to correct, remove, remediate, cleanup,
prevent, mitigate, monitor, evaluate, investigate, assess or xxxxx the Release
of a Hazardous Material.
28.02 Tenant covenants that (a) Tenant shall at its own cost comply
with all Environmental Laws; (b) Tenant shall not Manage any Hazardous Materials
on the Premises, nor conduct nor authorize the same, including installation of
any underground storage tanks, without prior written disclosure to and approval
of the Landlord; (c) Tenant shall not take any action that would subject the
Premises to permit requirements under RCRA for storage, treatment or disposal of
Hazardous Materials other than fuel for the back-up generator for the Premises
stored in the on-site fuel storage tank; (d) Tenant shall not dispose of
Hazardous Materials; (e) Tenant shall not discharge Hazardous Materials into
drains or sewers; (f) Tenant shall not suffer, cause or allow the Release of any
Hazardous Materials on, to or from the Premises; (g) Tenant shall keep the
Premises free from Hazardous Materials other than fuel for the back-up generator
for the Premises stored in the on-site fuel storage tank; and (h) Tenant shall
at its own cost arrange for the lawful transportation and off-site disposal of
all Hazardous Materials that it generates.
28.03 During the term of this Lease, Tenant shall promptly provide
Landlord with copies of all summons, citations, directives, information
inquiries or requests, notices of potential responsibility, notices of violation
or deficiency, orders or decrees, Claims, complaints, investigations, judgments,
letters, notices of environmental liens or response actions in progress, and
other communications, written or oral, actual or threatened, from the United
States Environmental Protection Agency, Occupational Safety and Health
Administration, Colorado Environmental Protection Agency or other federal, state
or local agency or authority or any other entity or individual, concerning (a)
any Release of a Hazardous Material on, to or from the Premises; (b) the
imposition of any lien on the Premises; or (c) any alleged violation of or
responsibility under Environmental Laws. Landlord and Landlord's employees shall
have the right to enter the Premises and conduct appropriate inspections or
tests in order to determine Tenant's compliance with Environmental Laws.
28.04 Upon written request by Landlord, Tenant shall provide
Landlord with the results of appropriate reports and tests, transportation and
disposal contracts for Hazardous Materials, with any permits issued under
Environmental Laws and with any other applicable documents to demonstrate that
Tenant complies with all Environmental Laws relating to the Premises. In the
event that Landlord, at any time during the Term, is reasonably concerned that
Hazardous Materials have been Released or Managed on or about the Premises or
that the Premises or Tenant are in violation of Environmental Laws, then,
Landlord shall have the right from time to time, in its sole discretion, to
require Tenant to perform (at Tenant's expense) an environmental audit and, if
deemed necessary by Landlord, an environmental risk assessment (each of which
must be satisfactory to Landlord) of the Premises, hazardous waste management
practices and/or hazardous waste disposal sites used by Tenant. Said audit
and/or risk assessment must be by an environmental consultant satisfactory to
Landlord, in its reasonable discretion. Should Tenant fail to undertake and seek
diligently to perform said environmental audit or risk assessment within thirty
(30) days after Landlord's request, Landlord shall have the right but not the
obligation to retain an environmental consultant to perform said environmental
audit or risk assessment. All costs and expenses incurred by Landlord in the
exercise of such rights shall be payable by Tenant upon demand.
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28.05 If Tenant's Management of Hazardous Materials at the Premises
(a) gives rise to liability or to a Claim under any Environmental Law, (b)
causes a significant public health effect, or (c) creates a nuisance, Tenant
shall promptly take all applicable action in Response. Landlord (or any Fee
Mortgagee or any if so permitted by applicable loan documents) shall have the
right, but not the obligation, after providing Tenant with notice and a
reasonable opportunity to cure, to enter onto the Premises or to take such other
actions as it deems necessary or advisable to perform any and all Response
action(s). All costs and expenses incurred by Landlord in the exercise of any
such rights shall be payable by Tenant upon demand.
28.06 Tenant shall indemnify, defend and hold harmless Landlord, its
beneficiaries, any Fee Mortgagee, any, any managing agents and leasing agents of
the Premises, and their respective agents, partners, officers, directors and
employees from all Claims suffered or incurred by any of the foregoing arising
from or attributable to (a) any breach by Tenant of any of its warranties,
representations or covenants in this Section; (b) noncompliance of the Premises
or Tenant with any Environmental Laws; (c) any actual or alleged illness,
disability, injury, or death of any person in any manner arising out of or
allegedly arisen out of exposure to Hazardous Materials or other substances or
conditions present at the Premises, regardless of when any such illness,
disability, injury, or death shall have occurred or been incurred or manifested
itself; and (d) Hazardous Materials Managed or Released by Tenant or otherwise
located or Released upon the Premises during the Term unless resulting from the
actions of Landlord, its employees, agents, or contractors during the Term or
from neighboring property not owned by Tenant or results from migration of
Hazardous Materials from neighboring property not owned by Tenant. In the event
any Claims or other assertion of liability shall be made against Landlord for
which Landlord is entitled to indemnity hereunder, Landlord shall notify Tenant
of such Claim or assertion of liability and thereupon Tenant shall, at its sole
cost and expense, assume the defense of such Claim or assertion of liability and
continue such defense at all times thereafter until completion. Tenant's
obligations hereunder shall survive the termination or expiration of this Lease.
Notwithstanding anything contained in this Section 28.06, Tenant shall not be
obligated to defend or hold harmless Landlord or any of the above-referenced
persons in the event that noncompliance of the Premises with any Environmental
Laws or the Release of Hazardous Materials upon the Premises arises out of any
act subsequent to the date of this Lease by Landlord or by any Person for whose
actions Landlord is liable, other than Tenant.
28.07 Tenant acknowledges that the Premises are being leased in
their present "as is" condition. Tenant hereby represents that it is not aware
of any Hazardous Materials on the Premises other than the fuel storage tank for
the back-up generator, and Tenant shall assume full responsibility for any
required cleanup thereof pursuant to this Section. Tenant further acknowledges
that Landlord has made no representation whatsoever regarding Hazardous
Materials on or about the Premises.
28.08 Landlord shall indemnify, defend and hold harmless Tenant, and
Tenant's agents, partners, officers, directors and employees from all Claims
suffered or incurred by any of the foregoing arising from or attributable to (a)
any violation by Landlord of any Environmental Laws subsequent to the date of
this Lease; or (b) any Hazardous Materials Managed or Released upon the Premises
by Landlord subsequent to the date of this Lease. In the event any Claims or
other assertion of liability shall be made against Tenant for which Tenant is
entitled to indemnity under this Section 28.08, Tenant shall notify Landlord of
such Claim or assertion of liability and thereupon Landlord shall, at its sole
cost and expense, assume the defense of such Claim or assertion of liability and
continue such defense at all times thereafter until completion. Landlord's
obligations hereunder shall survive the termination or expiration of this Lease.
ARTICLE 29
RIGHT OF FIRST OFFER TO PURCHASE
(a) So long as no Event of Default has occurred and Tenant gives
Landlord the written Acceptance Notice hereinafter described, and provided that
this Lease is and remains in full force and effect, then, during the Term,
Tenant shall have the right (the "First Offer Right") to purchase the Premises,
subject to the terms and conditions hereinafter set forth.
(b) Prior to Landlord offering the Premises for sale, Landlord
shall give Tenant written notice (the "Offer Notice") advising Tenant that
Landlord has decided to sell the Premises. The Offer Notice shall set forth the
price Landlord would be willing to accept from Tenant, and any other economic
terms and conditions, with respect to Landlord's sale of the Premises to Tenant.
Tenant's First Offer Right shall be exercisable by written notice (the
"Acceptance Notice") from Tenant to Landlord accepting such sales price and such
other terms and conditions. The Acceptance Notice, to be valid, must be given by
Tenant to Landlord not later than forty five (45) days after the Offer Notice is
given by Landlord, time being of the essence.
(c) If Tenant has validly exercised its First Offer Right as
provided above, then, Landlord and Tenant shall enter into a real estate sales
contract providing for such sales price and such other terms and conditions, and
containing customary terms and conditions
31
pursuant to which Landlord agrees to convey recordable title to the Premises to
Tenant by good and sufficient special warranty deed, free and clear of all liens
and encumbrances other than the Permitted Encumbrances and such other covenants,
restrictions, and matters of record which do not adversely impair Tenant's use
of the Premises as an office building as set forth in a title report to be
furnished by Landlord to Tenant, and providing for Tenant to deposit a down
payment of ten percent (10%) of the applicable purchase price. If Tenant
exercises the First Offer Right, payment of the purchase price and conveyance to
Tenant shall be made within thirty (30) days from the date of said exercise. The
Lease shall terminate at the closing date of the sale of the Premises to Tenant.
If Tenant exercises Tenant's First Offer Right, Tenant's default under such real
estate sales contract shall constitute an Event of Default. Impositions shall
not be prorated on or as of the closing date of such sale, and shall remain the
responsibility of Tenant.
(d) If the First Offer Right is not exercised by Tenant giving
Landlord the Acceptance Notice within said forty (45)-day period, , then,
Tenant's First Offer Right shall terminate, and Landlord may thereafter sell all
or any of the Premises at any sales price and pursuant to terms and conditions
determined by Seller, at its sole and exclusive discretion, to be appropriate,
without any further notice to Tenant and free of any right of Tenant, but
subject to all the other provisions of this Lease.
(e) No assignee or sublessee of the original-named Tenant under
this Lease, Nordstrom, Inc., a Washington corporation, except an Affiliate or
such Tenant, shall be entitled to exercise the First Offer Right. This right of
first offer shall not inure to the benefit of a party other than said original
Tenant, and, further, shall not apply unless said original Tenant or an
Affiliate of the original Tenant is occupying the Premises.
ARTICLE 30
CERTIFICATES BY LANDLORD AND TENANT
30.01 At any time and from time to time upon not less than twenty
(20) days' prior written notice by Landlord, Tenant shall execute, acknowledge
and deliver to Landlord or any other party specified by Landlord a statement in
writing certifying that this Lease is unmodified and in full force and effect
(or if there have been modifications, that the same, as modified, is in full
force and effect and stating the modifications) and the date to which each
obligation constituting the Rental has been paid, and stating (a) whether or not
to the best knowledge of Tenant (i) there is a continuing default by Landlord in
the performance or observance of any covenant, agreement or condition contained
in this Lease to be performed or observed by Landlord, or (ii) there shall have
occurred any event which, with the giving of notice or passage of time or both,
would become such a default and, if so, specifying each such default or
occurrence of which Tenant may have knowledge, (b) that this Lease is unmodified
and in full force and effect (or if there have been modifications, that this
Lease as modified is in full force and effect and identifying the
modifications), or if this Lease is not in full force and effect, the reason
such statement would not be accurate; (c) the date upon which Tenant began
paying Rent and the dates to which the Rent and other charges have been paid;
(d) that there has been no prepayment of Rent other than that provided for in
this Lease; (e) that there are no actions, whether voluntary or otherwise,
pending against Tenant under the Bankruptcy Code or the bankruptcy laws of any
state; and (f) such other matters as may be reasonably required by Landlord or
any Fee Mortgagee or prospective successor to Landlord's interest in this Lease.
Such statement may be relied upon by any Fee Mortgagee or prospective successor
to Landlord's interest in this Lease, provided, however, that Tenant shall have
no liability for damages to Landlord, any Fee Mortgagee, or their successors or
assigns, arising out of any unintentional inaccuracy or omission of information
in or from such statement, but Tenant shall be estopped from taking a position
against Landlord, such Fee Mortgagee and their successors and assigns that is
inconsistent with the statements made in such statement.
30.02 At any time and from time to time upon not less than twenty
(20) days' prior notice by Tenant, Landlord shall execute, acknowledge and
deliver to Tenant or any other party specified by Tenant a statement in writing
certifying that this Lease is unmodified and in full force and effect (or if
there have been modifications, that the same, as modified, is in full force and
effect and stating the modifications) and the date to which each obligation
constituting the Rental has been paid, and stating (a) whether or not to the
best knowledge of Landlord (i) there is a continuing Default or Event of Default
and, if so, specifying each such Default and Event of Default, or (ii) there
shall have occurred any event which, with the giving of notice or passage of
time or both, would become such a Default or Event of Default of which the
signer may have knowledge, (b) that this Lease is unmodified and in full force
and effect (or if there have been modifications, that this Lease as modified is
in full force and effect and identifying the modifications), or if this Lease is
not in full force and effect, the reason such statement would not be accurate;
(c) that here has been no prepayment of Rent other than that provided for in
this Lease; and (d) such other matters as may be reasonably required by Tenant.
Such statement may be relied upon by any then existing or prospective,
subtenant, assignee or purchaser of all or a portion of Tenant's interest in
this Lease, provided, however, that Landlord shall have no liability for damages
to Tenant or its successors or assigns, arising out of any unintentional
inaccuracy or omission of information in or from such statement, but Landlord
shall be estopped from taking a position against Tenant, and its successors and
assigns that is inconsistent with the statements made in such statement.
32
ARTICLE 31
CONSENTS AND APPROVALS
31.01 (a) All consents and approvals which may be given under
this Lease shall, as a condition of their effectiveness, be in writing. The
granting of any consent or approval by a party to perform any act requiring
consent or approval under the terms of this Lease, or the failure on the part of
a party to object to any such action taken without the required consent or
approval, shall not be deemed a waiver by the party whose consent was required
of its right to require such consent or approval for any further similar act,
and each party hereby expressly covenants and warrants that as to all matters
requiring the other party's consent or approval under the terms of this Lease,
the party requiring the consent or approval shall secure such consent or
approval for each and every happening of the event requiring such consent or
approval and shall not claim any waiver on the part of the other party of the
requirement to secure such consent or approval.
(b) If, pursuant to the terms of this Lease, any consent
or approval by Landlord or Tenant is not to be unreasonably withheld or delayed
or is subject to a specified standard, then (i) unless expressly provided
otherwise in this Lease, if the party who is to give its consent or approval
shall not have notified the other party within ten (10) Business Days after
receiving such other party's request (which request shall contain (a) sufficient
detailed information so as to enable the party who is to give its consent or
approval the ability to make a fully informed decision with respect to such
consent or approval, and (b) a statement to the effect that such party's failure
to respond within ten (10) Business days from the receipt of such request shall
be deemed consent or approval hereunder) for a consent or approval that such
consent or approval is granted or denied, and if the latter, the reasons in
reasonable detail therefor, such consent or approval shall be deemed granted,
and (ii) if upon notice that a consent or approval is denied, the notified party
contests such denial in those instances under this Lease which provide for
resolution by arbitration pursuant to Section 35 hereof and a final
determination that the consent or approval was unreasonably withheld or that
such specified standard had been met so that the consent or approval should have
been granted.
(c) Unless otherwise expressly set forth herein to the
contrary, any matter or thing which is required under this Lease to be done
"satisfactorily" or to the "satisfaction" of a party need only be done
"reasonably satisfactorily" or to the "reasonable satisfaction" of that party.
ARTICLE 32
SURRENDER AT END OF TERM
32.01 Tenant shall, on the last day of the Term or upon the earlier
termination of the Term, quit and surrender to Landlord the Premises vacant,
free of all Removable Items, and in good order and condition, reasonable wear
and tear and condemnation excepted, and free and clear of all lettings,
occupancies, liens and encumbrances other than those, if any, existing at the
date hereof, created by Landlord or which lettings and occupancies by their
express terms and conditions extend beyond the Expiration Date and to which
Landlord shall have consented and agreed, pursuant to this Lease or in writing,
without any payment or allowance whatsoever by Landlord. Tenant hereby waives
any notice now or hereafter required by law with respect to vacating the
Premises on any such termination date. Tenant's obligation to observe and
perform this covenant shall survive the expiration or earlier termination of the
Term.
32.02 Except as otherwise provided in Article 24 of this Lease, upon
the expiration of the Term, all Rental and other items payable by Tenant under
this Lease shall be apportioned to the date of termination.
32.03 Tenant acknowledges that possession of the Premises must be
surrendered to Landlord at the expiration or earlier termination of the Term.
Tenant agrees to indemnify Landlord against and save Landlord harmless from any
and all costs, expenses, claims, loss or liability resulting from the failure or
delay by Tenant in so surrendering the Premises, including, without limitation,
any claims made by any succeeding tenant founded on such failure or delay. The
parties recognize and agree that the damage to Landlord resulting from any
failure by Tenant to surrender possession of the Premises timely as aforesaid
will be extremely substantial, will exceed the amount of the Base Rent and
Additional Rent theretofore payable hereunder and will be impossible to measure
accurately. Tenant therefore agrees that if possession of the Premises is not
surrendered to Landlord upon the expiration or earlier termination of the Term,
then Tenant shall pay to Landlord, as liquidated damages for each month and for
each portion of any month during which Tenant holds over at the Premises after
the expiration or sooner termination of the Term, in addition to any sums
payable pursuant to the foregoing indemnity, a sum equal to 125% of the
aggregate of the Base Rent and Additional Rent which was payable under this
Lease with respect to the last month of the Term. Nothing herein contained shall
be deemed to permit Tenant to retain possession of the Premises after the
expiration or earlier termination of the Term. If Tenant holds over in
possession after the expiration or termination of the Term, such holding over
shall not
33
be deemed to extend the Term or renew this Lease, but the tenancy thereafter
shall continue as a tenancy from month to month upon the terms and conditions of
this Lease at the Base Rent and Additional Rent as herein increased. This
provision shall survive the expiration or earlier termination of this Lease.
32.04 On the last day of the Term or upon any earlier termination of
the Lease or upon reentry by Landlord upon the Premises pursuant to Article 24
hereof, fee simple title to all fixtures and improvements therein (other than
Removable Items) and to the Equipment shall revert to Landlord without the
necessity of any further action by either party hereunder. Upon Landlord's
request, Tenant shall execute and deliver to Landlord (in recordable form) all
documents necessary to evidence such conveyance, including, without limitation,
a quitclaim deed and xxxx of sale. Tenant shall deliver to Landlord Tenant's
executed counterparts of all Subleases, any service and maintenance contracts
that are in Tenant's possession and are then affecting the Premises, true and
complete maintenance records for the Premises, all original licenses and permits
then pertaining to the Premises, permanent certificates of occupancy then in
effect for the Building, and all assignable warranties and guarantees then in
effect which Tenant has received in connection with any work or services
performed or Equipment installed in the Building, together with a duly executed
assignment of any of the foregoing to Landlord, all financial reports,
documents, books and records whatsoever relating to the Premises.
Notwithstanding anything contained in this Section 32.04 to the contrary, Tenant
shall have the right to remove any Equipment, personal property, furniture,
trade fixtures and improvements (including, without limitation, all racking,
shelving, conveyor equipment lifts, cabling, antenna, signage and other items of
equipment) used in connection with the operation of Tenant's business on the
Premises and which are not integral to the operation of the Building or the
Building systems (collectively, "Removable Items") so long as: (i) such
Removable Items may be removed without causing material damage to the Building;
(ii) removal of such Removable Items will not reduce the value, useful life or
utility of the Building below the value of the Building immediately preceding
the installation or placement of such Removable Items; (iii) such Removable
Items are not required for the lawful occupancy of the Building; and (iv) Tenant
repairs any damage occasioned by the remove of such Removable Items.
32.05 On the last day of the Term or upon any earlier termination of
this Lease or upon a re-enter by Landlord upon the Premises pursuant to Article
24 hereof, Tenant, at its sole cost and expense, shall remove from the Premises
on or prior to such expiration, termination or reentry all personal property
situated thereon which is not owned by Landlord, and shall repair any material
damage caused by such removal. Any property not so removed shall become the
property of Landlord, and Landlord may cause such property to be removed from
the Premises and disposed of, but the cost of any such removal and disposition
and of repairing any damage caused by such removal shall be borne by Tenant.
ARTICLE 33
ENTIRE AGREEMENT
All understandings and agreements, oral or written, heretofore made
between the parties hereto are merged in this Lease, which alone fully and
completely expresses the agreement between Landlord (and its beneficiary, if
any, and their agent(s)) and Tenant.
ARTICLE 34
QUIET ENJOYMENT
If and as long as Tenant shall faithfully perform the agreements,
terms, covenants and conditions hereof, Tenant shall and may (subject, however,
to the provisions, reservations, terms and conditions of this Lease) peaceably
and quietly have, hold and enjoy the Premises for the Term hereby granted
without molestation or disturbance by or from Landlord or any Person claiming
through or under Landlord and free of any encumbrance created or suffered by
Landlord, except from encumbrances created or suffered by Tenant and the
Permitted Encumbrances. This covenant shall be construed as running with the
Land to and against subsequent owners and successors in interest and is not, nor
shall it operate or be construed as, a personal covenant of Landlord, except to
the extent of Landlord's interest in the Premises and only so long as such
interest shall continue, and thereafter this covenant shall be binding upon such
subsequent owners and successors in interest of Landlord's interest under this
Lease, to the extent of their respective interests, as and when they shall
acquire the same, and only so long as they shall retain such interest.
ARTICLE 35
ARBITRATION
In such cases where this Lease expressly provides for the settlement of
a dispute or question by arbitration, or an appraisal and only in such cases,
the same shall be finally determined by arbitration conducted in the City and
County of Arapahoe before and, except as
34
herein provided, in accordance with the Commercial Arbitration Rules then
existing of the American Arbitration Association or any successor body of
similar function, and judgment upon the award rendered may be entered in any
court having jurisdiction thereof. If the American Arbitration Association or
any successor body of similar function shall not then be in existence, the party
desiring arbitration or an appraisal shall appoint a person as arbitrator or
appraiser on its behalf and give notice thereof to the other party who shall,
within fifteen (15) days thereafter, appoint a second person as arbitrator or
appraiser on its behalf and give written notice thereof to the first party. The
arbitrators or appraisers thus appointed shall make their determinations as
provided in this Article 35. The arbitrators or appraisers shall state their
determinations in writing within thirty (30) days after their appointment and
simultaneously give notice thereof to each other and to Landlord and Tenant.
Such two (2) arbitrators or appraisers shall have ten (10) days after the
receipt of notice of each other's determinations to confer with the other and to
attempt to reach agreement as to a final determination. If such two (2)
arbitrators or appraisers shall concur as to the determination, such concurrence
shall be final and binding upon Landlord and Tenant and judgment upon the award
may be entered in any court having jurisdiction. If such two (2) arbitrators or
appraisers shall fail to concur, then such two (2) arbitrators or appraisers
shall immediately designate a third arbitrator or appraiser. If the two (2)
arbitrators or appraisers shall fail to agree upon the designation of such third
arbitrator or appraiser within five (5) days, then either party may apply to the
American Arbitration Association or any successor thereto having jurisdiction
for the designation of such arbitrator or appraiser. The third arbitrator or
appraiser shall conduct such hearings and investigations as he may deem
appropriate and shall, within thirty (30) days after the date of his
designation, choose one (1) of the determinations of the two (2) arbitrators or
appraisers originally selected by the parties, and that choice by the third
arbitrator or appraiser shall be binding upon Landlord and Tenant and judgment
upon the award may be entered in any court having jurisdiction. Each party shall
pay its own counsel fees and expenses, including the expenses and fees of any
arbitrator or appraiser selected by it in accordance with the provisions hereof,
and the parties shall share all other expenses and fees of any such arbitration
or appraisal. If a party who shall have the right pursuant to the foregoing to
appoint an arbitrator or appraiser fails or neglects to do so, then and in such
event the other party may apply to any court of competent jurisdiction to
appoint such arbitrator or appraiser. Landlord and Tenant shall sign all
documents and do all other things necessary to submit any such matter to
arbitration or appraisal and agree to, and hereby do, waive any and all rights
they or either of them may at any time have to revoke their agreement hereunder
to submit to arbitration or appraisal and to abide by the decision rendered
thereunder. The arbitrators or appraisers shall have no power to vary or modify
any of the provisions of this Lease and their jurisdiction is limited
accordingly. If arbitration takes place, then each of the arbitrators shall be
licensed professional engineers (if the issue to be arbitrated relates to
construction issues) or registered architects having at least ten (10) years
experience in the design of office buildings. Any appraiser selected or
appointed pursuant to this Section shall be a member of the American Institute
of Real Estate Appraisers (or any successor organization) and shall have been
doing business as an appraiser in the area in which the Premises are located for
a period of at least ten (10) years prior to the date of his appointment.
ARTICLE 36
SEVERABILITY
The invalidity of any provision of this Lease shall not impair or
affect in any manner the validity, enforceability or effect of the rest of this
Lease.
ARTICLE 37
RECORDING OF MEMORANDUM
Landlord and Tenant, each upon the request of the other or any Fee
Mortgagee, shall execute, acknowledge and deliver a memorandum of this Lease and
of each modification of this Lease, in proper form for recordation. If an Event
of Default occurs hereunder and, as a result thereof, this Lease is terminated,
Landlord may execute a statement to be recorded in the appropriate land records
terminating such memorandum. Tenant hereby appoints Landlord as its
attorney-in-fact to execute such a termination statement on its behalf. This
appointment shall be deemed to be coupled with an interest and irrevocable.
ARTICLE 38
EXCULPATION
Tenant acknowledges and agrees that the liability of Landlord under
this Lease shall be limited to its interest in the Premises and any judgments
rendered against Landlord shall be satisfied solely out of the proceeds of sale
of its interest in the Premises which have been received by Landlord. No
personal judgment shall lie against Landlord or any land trustee upon
extinguishment of its rights in the Premises and any judgments so rendered shall
not give rise to any right of execution or levy against Landlord's assets. The
provisions hereof shall inure to Landlord's successors and assigns. The
foregoing provisions are not designed to relieve Landlord from the performance
of any of Landlord's obligations under this Lease, but only to limit the
personal liability of Landlord in case of recovery of a
35
judgment against Landlord. The foregoing shall not be deemed to limit Tenant's
rights to obtain injunctive relief or specific performance. Tenant agrees that
in no event shall it ever look to any land trustee for the performance of any of
Landlord's obligations hereunder.
ARTICLE 39
MISCELLANEOUS
39.01 The captions of this Lease are for convenience of reference
only and in no way define, limit or describe the scope or intent of this Lease
or in any way affect this Lease.
39.02 The Table of Contents is for the purpose of convenience of
reference only and is not to be deemed or construed in any way as part of this
Lease or as supplemental thereto or amendatory thereof.
39.03 The use herein of the neuter pronoun in any reference to
Landlord or Tenant shall be deemed to include any individual Landlord or Tenant,
and the use herein of the words "successors and assigns" or "successors and
assigns" of Landlord or Tenant shall be deemed to include the heirs, legal
representative and permitted assigns of any individual Landlord or Tenant.
39.04 Intentionally Omitted.
39.05 If more than one entity is named as or becomes Landlord or
Tenant hereunder, the other party may require the signatures of all such
entities in connection with any notice to be given or action to be taken by that
party hereunder. Each entity constituting Tenant or Landlord (other than a
limited partner, if any such entity is a limited partnership) shall be fully
jointly and severally liable for all of that party's obligations hereunder,
subject to Article 38. Any notice by a party to any entity named as the other
party shall be sufficient and shall have the same force and effect as through
given to all entities named as such other party.
39.06 The liability of Landlord (which, for purposes of this Section
39.06, shall include any parent, affiliate or subsidiary corporation of Landlord
and any directors, officers, employees, members, shareholders, partners or
agents of Landlord and any of the foregoing) hereunder for damages or otherwise
shall be limited to Landlord's interest in the Premises, including, without
limitation, the proceeds of any insurance policies covering or relating to the
Premises, any awards payable in connection with any condemnation of the Premises
or any part thereof, together with the proceeds of any sale of financing of the
Premises, and any other rights, privileges, licenses, franchises, claims, causes
of action or other interests, sums or receivables appurtenant to the Premises.
Landlord shall have no personal liability beyond its interest therein and no
other property or assets of Landlord shall be subject to levy, execution or
other enforcement procedure for the satisfaction of Tenant's remedies.
39.07 Except as otherwise expressly provided in this Lease, there
shall be no merger of this Lease or the leasehold estate created hereby with the
fee estate in the Premises or any part thereof by reason of the same person
acquiring or holding, directly or indirectly, this Lease or the leasehold estate
created hereby or any interest in this Lease or in such leasehold estate as well
as the fee estate in the Premises.
39.08 Each of the parties represents and warrants to the other that
it has not dealt with any broker, finder or like entity in connection with this
Lease transaction, and each party shall defend, indemnify and hold the other
party harmless from and against any and all claims for brokerage fees or other
commissions which may at any time be asserted against the indemnified party
founded upon a claim that the aforesaid representation and warranty of the
indemnifying party is untrue, together with any and all losses, damages, costs
and expenses (including reasonable attorneys' fees, court costs and
disbursements) relating to such claims or arising therefrom or incurred by the
indemnified party in connection with the enforcement of this indemnification
provision. If any claim is made by any broker who shall claim to have acted or
dealt with Tenant in connection with this transaction, Tenant will pay the
brokerage commission, fee or other compensation to which such broker is
entitled.
39.09 This Lease may not be changed, modified or terminated orally,
but only by a written instrument of change, modification or termination executed
by the party against whom enforcement of any change, modification or termination
is sought.
39.10 This Lease shall be governed by and construed in accordance
with the laws of the State of Colorado.
39.11 The agreements, terms, covenants and conditions herein shall
be binding upon, and shall inure to the benefit of, Landlord and Tenant and
their respective successors and (except as otherwise provided herein) assigns.
36
39.12 All references in this Lease to "Articles" or "Sections" shall
refer to the designated Article(s) or Section(s), as the case may be, of this
Lease.
39.13 All references in this Lease to "licensed professional
engineer" or "registered architect" shall mean a professional engineer or
architect who is licensed or registered, as the case may be, by the State of
Colorado.
39.14 Unless specifically provided otherwise herein, any undertaking
either required or permitted hereunder by either Landlord or Tenant shall
include the obligation to pay for such undertaking.
39.15 This Lease shall not be construed to create a partnership or
joint venture between the parties, it being the intention of the parties only to
create a landlord and tenant relationship.
39.16 Upon Landlord's written request, from time to time, Tenant
shall promptly furnish Landlord with its most recently published Annual Report
to Shareholders, Form 10K, Form 10Q and any Form 8K published since the last
Annual Report to Shareholders. In the event that at any time during the Term,
the stock of Tenant ceases to be publicly held or traded through an exchange or
over the counter, Tenant shall promptly deliver to Landlord, upon Landlord's
request, Tenant's then most recent audited quarterly and annual financial
statements.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
the day and year first written above.
LANDLORD: TENANT:
XXXX-XXXXX LLC, a Colorado limited NORDSTROM, INC., a
liability company Washington corporation
By: /s/ Xxxxxx Xxx Xxxx By: /s/ Xxxxx X. Xxxxxx
------------------------- -------------------
Name: Xxxxxx Xxx Xxxx Name: Xxxxx X. Xxxxxx
Its:Manager Its: Vice President Real Estate &
Corporate Secretary
37
EXHIBIT A
DESCRIPTION OF THE LAND
LOT 1, CASTLEWOOD FILING NO. 2, ACCORDING TO THE PLAT RECORDED ON JUNE 29, 1984
IN BOOK 76 AT PAGES 54 AND 55, COUNTY OF ARAPHAHOE, STATE OF COLORADO
1
EXHIBIT B
PERMITTED ENCUMBRANCES
A. All title exceptions shown on Schedule B-2 to the Title Commitment
Number 1295469, dated November 25, 2002, issued by Chicago Title Insurance
Company.
B. Any and all other matters affecting title to the Premises including,
without limitation, all liens, encumbrances, security interests, covenants,
conditions, restrictions, notices of pendency, charges, easements, zoning laws,
ordinances and regulations, building codes, regulations and rules and other
governmental laws, regulations, rules and orders affecting the Premises.
C. Any state of facts an accurate survey or visual inspection of the
Premises would allow.
D. Encroachments of any trims or corners, if any, upon any street.
E. Variations between fences, retaining walls, steps, xxxxxx, shrubs
and trees, if any, and record lines of title.
F. Recorded and unrecorded subleases or other agreements for occupancy
of the Premises.
G. Easement for connection of conduit and wiring contained therein
between the Premises and the adjacent property owned by Tenant upon which Tenant
operates its data center.
1
EXHIBIT C
BASE RENT
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Lease Year Annual Amount Monthly Installment
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a) Initial Term
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1 $ 1,576,000.00* $ 131,333.33
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2 $ 1,591,760.00 $ 132,646.66
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3 $ 1,607,677.60 $ 133,973.13
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4 $ 1,623,754.38 $ 135,312.86
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5 $ 1,639,991.92 $ 136,665.99
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6 $ 1,656,391.83 $ 138,032.65
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7 $ 1,672,954.75 $ 139,412.89
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8 $ 1,689,685.31 $ 140,807.10
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9 $ 1,706,581.17 $ 142,215.09
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10 $ 1,723,646.99 $ 143,637.24
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11 $ 1,740,884.47 $ 145,073.70
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12 $ 1,758,293.31 $ 146,524.44
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13 $ 1,775,876.25 $ 147,989.68
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14 $ 1,793,635.01 $ 149,469.58
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15 $ 1,811,571.36 $ 150,964.28
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b) First Option Period
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16-20 $ 1,992,728.49 $ 166,060.70
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c) Second Option Period
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21-25 $ 2,192,001.34 $ 182,666.77
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d) Third Option Period
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26-30 $ 2,411,201.48 $ 200,933.45
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e) Fourth Option Period
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31-35 $ 2,652,321.62 $ 221,026.80
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f) Fifth Option Period
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36-40 $ 2,917,553.79 $ 243,129.48
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*adjusted in the event that the first Lease Year exceeds twelve (12) calendar
months.
