Exhibit 10.1
BASIC LEASE INFORMATION
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The following Basic Lease Information is hereby incorporated into and made
a part of the Lease between Landlord and Tenant to which it is attached. Each
reference in the Lease to any of the Basic Lease Information shall mean the
respective information set forth below, and such information shall be deemed
incorporated as a part of the terms provided under the particular Lease Section
pertaining to such information. In the event of any conflict between any Basic
Lease Information and the Lease, the former shall control.
1. Building: 000 00xx Xxxxxx, Xxxxxx, Xxxxxxxx 00000
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2. Landlord: Kesef, LLC
======== c/o Xxxxxx-Xxxxxxxx Realty Company
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
3. Landlord's Address for Giving of Notices and Payment of Rent:
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Kesef, LLC
c/o Xxxxxx-Xxxxxxxx Realty Company
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
With a Copy of All Notices to:
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Xxxx Xxxxxxxx
Xxxxxx-Xxxxxxxx Realty Company
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
4. Tenant: Colorado Business Bankshares, Inc.
====== 000 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
5. Premises: The floor area on the first, second, fourth, sixth, eighth
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and ninth floors of the Building as outlined on the floor plan of the
Building attached hereto as Exhibit B. (Section 1.2; Exhibit B)
6. Parking Allowance: None.
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7. Use of Premises: Offices for the following type of business: Bank and
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related office uses. (Section 2)
8. Construction Information Submittal Date: N/A.
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9. Construction Document Approval Date: N/A/
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10. Commencement Date: May 1, 1998.
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11. Expiration Date: See Exhibit G attached hereto.
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12. Rent:
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Months Monthly Base Rent Amount
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See Exhibit G attached hereto and incorporated herein by this
reference.
The months referred to above are the full calendar months after any
first partial month of the Lease Term. The monthly Base Rent rate for
any such partial month shall be the same as the rate specified for the
first full calendar month when Base Rent is payable. (Section 1.4)
13. Tenant's Percentage of Operating Expenses: As determined pursuant to
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Section 5.2.
14. Base Year for Adjustments to Operating Expenses: The 1998 Calendar
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Year. (Section 5.2)
15. Security Deposit: None.
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16. Brokers: Xxxxxx-Xxxxxxxx Realty Company.
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LEASE AGREEMENT
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TERMS AND CONDITIONS
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SECTION 1. XXXXXX AND RENT:
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1.1 Demise: Landlord hereby leases to Tenant, and Tenant hereby leases
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from Landlord, upon and subject to the terms, covenants, provisions and
conditions of this Lease Agreement (herein called the "Lease"), the premises
described in Section 1.2 in the building (herein called "Building") located on
the Land described on EXHIBIT A attached hereto and incorporated herein.
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1.2 Premises: The Premises (herein called "Premises") leased to Tenant
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are described in the Basic Lease Information, and are outlined on the floor
plan(s) for the Building attached hereto as EXHIBIT B and incorporated herein by
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this reference.
1.3 Commencement and Expiration Dates: The term of this Lease
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(herein called "Lease Term") shall be for the period specified in the Basic
Lease Information subject to adjustment as provided in Section 30 (or until
sooner terminated as herein provided). If Landlord gives Tenant notice of an
adjustment in the Commencement Date pursuant to Section 30, it shall be deemed a
request for an estoppel statement from Tenant confirming the adjustment pursuant
to Section 27. Unless Tenant gives notice to Landlord of an objection to the
adjustment within fifteen (15) days of Landlord's notice, it shall be final and
binding on the Tenant as an amendment of this Lease.
1.4 Rent: The rents shall be and consist of a Base Rent (herein called
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"Base Rent") and Additional Rent (herein called "Additional Rent"). For
purposes of this Lease, Base Rent and Additional Rent are referred to
collectively as "Rent." Base Rent shall be the amount indicated in the Basic
Lease Information. Base Rent shall be payable in equal monthly installments in
advance on the first day of each and every calendar month during the term of
this Lease (except to the extent otherwise specifically provided elsewhere in
this Lease and except that Tenant shall pay, upon the execution and delivery of
this Lease by Xxxxxx, the sum indicated in the Basic Lease Information, to be
applied against the first installment(s) of Base Rent becoming due under this
Lease). Additional Rent shall consist of all other sums of money as shall
become due from and payable by Tenant to Landlord under this Lease. All Rent
shall be paid in lawful money of the United States of America to Landlord at its
office or such other place, as Landlord shall designate by notice to Tenant.
Tenant shall pay the Base Rent and Additional Rent promptly when due without
notice or demand and without any abatement, deduction or offset for any reason
whatsoever, except as expressly provided in this Lease. If the Commencement
Date occurs on a day other than the first day of a calendar month, the Base Rent
for that partial calendar month shall be prorated on a daily basis. If the
Basic Lease Information provides for the abatement of Base Rent for any
specified periods of time during the term of the Lease ("Rent Free Period(s)"),
none of the Base Rent specified in this Lease as payable during the Lease Term
shall be allocable to any such Rent Free Period(s). In the event of any default
by Tenant, Landlord shall have the right to collect Rent for the Premises from
Tenant for all Rent Free Period(s) at the same Base Rent in effect immediately
after any such Rent Free Period(s).
1.5 Late Charge: Tenant recognizes that late payment of any Rent from
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Tenant to Landlord will result in administrative expense to Landlord, the extent
of which additional expense is extremely difficult and economically impractical
to ascertain. Xxxxxx therefore agrees that if Rent from Tenant to Landlord
remains unpaid five (5) days after said amount is due, the amount of such unpaid
Rent or other payments shall be increased by a late charge
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LEASE AGREEMENT
to be paid to Landlord by Tenant in an amount equal to five percent (5%) of the
amount of the delinquent Rent or other payment. Tenant agrees that such amount
is a reasonable estimate of the loss and expense to be suffered by Landlord as a
result of such late payment by Xxxxxx and may be charged by Landlord to defray
such loss and expense. The provisions of this Section in no way relieve Tenant
of the obligation to pay Rent or other payments on or before the date on which
they are due, nor do the terms of this Section in any way affect Landlord's
remedies pursuant to Section 21 of this Lease in the event Rent is past due.
1.6 Confidentiality: Tenant shall keep the Rent and other terms of this
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Lease confidential from other current and prospective occupants of the Building
and any other buildings owned by Landlord except to the extent disclosure is
reasonably necessary in the conduct of Xxxxxx's business.
SECTION 2. USE:
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Tenant shall use and occupy the Premises continuously during the term of
this Lease for the use specified in the Basic Lease Information and for no other
purpose without the written consent of Landlord. If any governmental license or
permit, other than a Certificate of Occupancy, shall be required for the proper
and lawful conduct of Tenant's business in the Premises or any part thereof,
Tenant, at its expense, shall duly procure and thereafter maintain such license
or permit and submit the same to Landlord for inspection. Tenant shall at all
times comply with the terms and conditions of each such license or permit.
Tenant shall not do or permit anything to be done in or about the Premises which
will in any way obstruct or interfere with the rights of other tenants or
occupants of the Building or injure or annoy them, nor use or allow the Premises
to be used for any improper, immoral, unlawful or objectionable purpose, nor
shall Tenant cause or maintain or permit any nuisance in, on, or about the
Premises. Tenant shall not commit or allow the commission of any waste in, on,
or about the Premises. Tenant shall not use the Premises or permit anything to
be done in or about the Premises which will in any way conflict with any law,
statute, ordinance, or governmental rule or regulation now in force or which may
hereafter be enacted or promulgated. Tenant shall not do or permit anything to
be done on or about the Premises or bring or keep anything therein which will in
any way increase the rate of any insurance upon the Building in which the
Premises are situated or any of its contents or cause a cancellation of said
insurance or otherwise affect said insurance in any manner. Tenant shall, at
its sole cost and expense, promptly comply with all laws, statutes, ordinances,
and governmental rules, regulations, or requirements now in force or which may
hereafter be in force ("Legal Requirements") and with the requirements of any
board of fire underwriters or other similar body now or hereafter constituted
relating to or affecting the condition, use, or occupancy of the Premises,
excluding structural changes not related to or affected by: (i) alterations or
improvements made by or for Tenant or (ii) Tenant's acts. The judgment of any
court of competent jurisdiction or the admission of Tenant in an action against
Tenant, whether Landlord be a party thereto or not, that Tenant has so violated
any such law, statute, ordinance, rule, regulation, or requirement, shall be
conclusive of such violation as between Landlord and Tenant. Tenant shall use
its best efforts to prevent any violation of applicable Legal Requirements by
its partners, directors, officers, agents and employees.
SECTION 3. TENANT'S ACCEPTANCE AND MAINTENANCE OF PREMISES:
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By taking possession of the Premises, Xxxxxx accepts the Premises as being
in the condition in which Landlord is obligated to deliver them and otherwise in
good order, condition and repair.
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LEASE AGREEMENT
Landlord's obligations to maintain the Building are as set forth in Section 14.1
hereof. Tenant shall, at all times during the term hereof at Tenant's sole cost
and expense, keep the following items in good order, condition and repair: (i)
floor coverings, (ii) wall coverings, (iii) paint, (iv) casework, (v) ceiling
tiles, (vi) all of Tenant's Property (as defined in Section 13.2 herein) and
(vii) any and all Non-Building-Standard Tenant Improvements. Landlord shall have
no obligation to alter, remove, improve, repair, decorate, or paint the Premises
or any part thereof except as specified in EXHIBIT C attached hereto and made a
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part hereof. No representations respecting the condition of the Premises or the
Building have been made by Landlord to Tenant, except as herein set forth.
SECTION 4. OPERATING EXPENSES AND TAXES:
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4.1 Operating Expenses: For the purposes of this Lease, the term
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"Operating Expenses" shall mean all expenses paid or incurred by Landlord (or on
Landlord's behalf) as determined by Landlord for the operation, maintenance and
repair of the Land and/or Building, including the common areas of the Building,
including without limitation: (i) salaries, wages, medical, surgical, union and
general welfare benefits (including, without limitation, group life insurance)
and pension payments of employees of Landlord engaged in the repair, operation
and maintenance of the Land and/or Building, provided however that Landlord
shall not include in the operating expenses the salaries, wages, etc. of any
employee who is separately compensated by Xxxxxxxx's property manager; (ii)
payroll taxes, workers' compensation insurance, uniforms and related expenses
for employees; (iii) the cost of all charges for gas, steam, electricity, heat,
ventilation, air-conditioning, water and other utilities furnished to the
Building, together with any taxes on such utilities; (iv) the cost of painting
of public areas; (v) the cost of all charges of insurance, including but not
limited to all risk property insurance with rent loss coverage, liability and
fidelity insurance, with regard to the Land and/or Building and the maintenance
and/or operation thereof; (vi) the cost or rental of all supplies, including
without limitation, cleaning supplies, light bulbs, tubes and ballasts,
materials and equipment, and sales and other taxes thereon; (vii) the cost of
hand tools and other movable equipment used in the repair, maintenance or
operation of the Building amortized over the useful life of such hand tools and
movable equipment (as reasonably estimated by Landlord); (viii) the cost of all
charges for window and other cleaning and janitorial and security services; (ix)
charges of independent contractors performing repairs or services to the Land
and/or Building; (x) non-capital repairs; (xi) remodeling of the public and
common areas of the Building including, without limitation, repainting,
replacement and repair of furnishings, fixtures, accessories, carpeting or other
floor covering, wall and window coverings in the public and common areas,
provided, however, that Landlord shall not include as an operating expense the
costs of the initial remodeling of the Building being performed by Landlord;
(xii) alterations and improvements to the Building made by reason of the laws
and requirements of any public authorities or the requirements of insurance
bodies amortized over the useful life of the improvements; (xiii) management
fees paid to a third party, or, if no managing agent is employed by Landlord,
Landlord shall be entitled to charge a management fee which is not in excess of
five percent (5%) of gross revenue, and such fee shall be included in the
Operating Expenses; (xiv) the cost of any capital improvements or repairs to the
Building and/or of any machinery or equipment installed in the Building
amortized (with interest at the rate of nine percent [9%] on the unamortized
balance) over the useful life of the improvement, machinery and/or equipment as
reasonably estimated by Landlord, which is made or becomes operational, as the
case may be, after the completion of the construction of the Building and which
have a reasonable probability of reducing the
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LEASE AGREEMENT
expenses which otherwise would be included in Operating Expenses; (xv)
reasonable legal, accounting and other professional fees incurred in connection
with operation, maintenance and management of the Land and/or Building which are
not incurred solely for the benefit of any one particular tenant; (xvi) the cost
of providing elevator service; (xvii) the cost of landscape and parking area
maintenance and repair; (xviii) the common area charges to which the Building is
subject; (xix) Taxes as defined in Section 4.3; and (xx) all other charges
properly allocable to the operation, repair and maintenance of the Building in
accordance with generally accepted accounting principles.
4.2 Exclusions From Operating Expenses: Operating Expenses shall not
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include: (i) depreciation or amortization (except as provided above in Section
4.1); (ii) interest on and amortization of debts (except as provided above in
Section 4.1); (iii) leasehold improvements made for new tenants of the Building;
(iv) leasing commissions, attorneys' fees, costs and disbursements and other
expenses (including advertising) incurred in connection with leasing,
renovating, or improving space for tenants or other occupants or prospective
tenants or occupants of the Building; (v) refinancing costs; (vi) the cost of
any work or services performed for any occupants of any leased space in the
Building (including Tenant), whether at the expense of Landlord or such
occupants, to the extent that such work or services is in excess of the work or
services which Landlord, at its expense, is required to furnish to Tenant under
this Lease; (vii) the cost of any electricity furnished to the Premises or any
other leased space in the Building in excess of the electricity to be provided
by Landlord under this Lease; (viii) damages recoverable by any occupant due to
violation by Landlord of any of the terms and conditions of this Lease or any
other lease relating to the Building; (ix) repairs occasioned by fire, windstorm
or other casualty, to the extent such repairs are paid for by insurance
proceeds; and (x) capital repairs and replacements (except as provided above in
Section 4.1).
4.3 Taxes: The term "Taxes" shall include (i) all real property taxes
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and assessments and personal property taxes, charges, rates, duties and
assessments rated, levied or imposed by any governmental authority with respect
to the Land, the Building and any improvements, fixtures and equipment located
therein or thereon, and with respect to all other property of Landlord, real or
personal, located in or on the Land or the Building and used in connection with
the operation of the Building; (ii) any tax in lieu of a real property tax;
(iii) any tax or excise levied or assessed by any governmental authority on the
rentals payable under this Lease or rentals accruing from the use of the Land or
the Building, provided that this shall not include federal or state, corporate
or personal income taxes; (iv) any tax or excise imposed or assessed against
Landlord which is measured or based in whole or in part on the capital employed
by Landlord to improve the Land and construct the Building; and (v) any
improvement district fee or similar charges (which shall be deemed payable in
the maximum number of installments possible, whether or not Landlord so elects
to pay the same in installments and if so paid in one installment by Landlord,
Landlord shall be entitled to collect interest on the amount paid using the
interest rate factor using by the taxing entity). If Landlord receives a refund
of Taxes then Landlord shall credit such refund, net of any professional fees
and costs incurred by Landlord to obtain the same, against the Taxes for the
Operating Year to which the refund is applicable or the current Operating Year,
at Landlord's option. The amount of the Taxes for the Base Year shall reflect
any refund resulting from any appeal, protest, or other action by Landlord
contesting the amount claimed by the governmental authorities and any statements
by Landlord as to the amount of Base Year Taxes shall be tentative until any
such contest is completed.
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LEASE AGREEMENT
SECTION 5. PAYMENT OF OPERATING EXPENSES:
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5.1 Operating Year: As used in this Section 5, the term "Operating
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Year" shall mean each calendar year of the Lease Term and in the event this
Lease begins or ends on any date other than the first day of the calendar year,
the calculations, costs and payments referred to herein shall be prorated as
provided in Section 31.11.
5.2 Tenant's Pro Rata Share: Throughout the entire Lease Term,
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Tenant shall pay, as Additional Rent, Tenant's Percentage of the increase in
Operating Expenses of the Building, if any, over the Operating Expenses for the
Base Year. Tenant's Percentage of the increase in Operating Expenses of the
Building for each Operating Year shall be calculated as follows: the Operating
Expenses for each Operating Year less the Operating Expenses for the Base Year
shall be multiplied by Xxxxxx's Percentage. If in any Operating Year Tenant
occupies the Premises for less than the full Operating Year, then the product
from the foregoing multiplication shall be multiplied by the percentage of the
Operating Year in which Tenant occupied the Premises. "Tenant's Percentage"
shall mean a percentage, the numerator of which is the number of rentable square
feet of the leased Premises and the denominator of which is the total number of
rentable square feet of the Building, whether or not such space is actually
rented. The Tenant's Percentage shall be changed from time to time to reflect
any change in the total rentable square footage in the Building or the rentable
square feet of the leased Premises. If the rentable square footage of the
Building is not fully occupied during any particular Operating Expense year
including the base year, Landlord shall adjust those Operating Expenses which
are affected by occupancy for the particular Operating Expense year to reflect
100% occupancy. If during any Operating Year the tenant of any space in the
Building performs work or services therein pursuant to a written agreement
between Landlord and such tenant in lieu of having Landlord perform the same and
the cost thereof would have been included in Landlord's Operating Expenses, then
in any such event(s), at Landlord's option, the Operating Expenses for such
Operating Year shall be adjusted to reflect the Operating Expenses that would
have been incurred if Landlord had performed such work or services, as the case
may be. In the event Operating Expenses are decreased as a result of
extraordinary changes then the Base Year Operating Expenses shall be
correspondingly reduced. An extraordinary change shall mean changes unrelated
to the normal inflation and deflation of the cost of goods and services making
up the Operating Expenses, such as a change in the rentable area contained in
the Building resulting from condemnation, casualty, demolition, alteration or
construction of the additional improvements. Any decrease in Taxes shall be
considered an extraordinary change if due to any statewide property tax
limitation or reduction legislation. If the total rentable area of the Building
changes, Landlord shall reasonably determine a revised Tenant's Percentage
reflecting the change.
5.3 Written Statement of Estimate: Beginning with the second lease
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year and prior to the commencement of each subsequent Operating Year during the
Lease Term, Landlord shall furnish Tenant with a written statement setting forth
Tenant's Percentage of the estimated increase in Operating Expenses and Taxes
for the next Operating Year. Tenant shall pay to Landlord as Additional Rent
commencing on January 1 of the Operating Year, and thereafter on the first day
of each calendar month, an amount equal to one-twelfth of the amount of Tenant's
Percentage as shown in Xxxxxxxx's written statement. In the event Landlord
delivers the written statement late, Tenant shall continue to pay to Landlord an
amount equal to one-twelfth of Tenant's Percentage of the estimated Operating
Expenses for the immediately preceding Operating Year until Xxxxxxxx does
furnish the written statement, at which time
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LEASE AGREEMENT
Tenant shall pay the amount of any excess of the Tenant's Percentage for the
expired portion of the current Operating Year over the Tenant's actual payments
during such time and any excess payments by Tenant shall be credited to the next
due payment of Rent from Tenant. The late delivery of any written statement by
Landlord shall not constitute a waiver of Tenant's obligation to pay its pro
rata share of Operating Expenses nor subject the Landlord to any liability, but
Landlord shall use reasonable efforts to deliver such written statements of
estimated increase in Operating Expenses as soon as reasonably possible after
the commencement of each Operating Year.
5.4 Final Written Statement: Within 120 days after the close of each
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Operating Year during the Lease Term, Landlord shall deliver to Tenant a written
statement (the "Operating Statement") setting forth Tenant's actual Percentage
of the increase in Operating Expenses for the preceding Operating Year. In the
event Tenant's Percentage of the actual increase in Operating Expenses is in
excess of the Tenant's pro rata estimated increase in Operating Expenses, Tenant
shall pay the amount of such excess to Landlord as Additional Rent within thirty
(30) days after receipt of such statement by Xxxxxx. In the event Tenant's
Percentage of the actual increase in Operating Expenses is less than the
Tenant's Percentage of the estimated increase in Operating Expenses actually
paid by Tenant then the amount of the excess overpayment shall be paid by
Landlord to Tenant within thirty (30) days following the date of such statement
or Landlord may elect to apply the overpayment to Tenant's next Rent payment(s).
The late delivery of any written statement by Landlord shall not constitute a
waiver of Tenant's obligation to pay its pro rata share of Operating Expenses,
but Landlord shall use reasonable efforts to deliver such written statements as
soon as reasonably possible after the commencement of each Operating Year.
5.5 Tenant Examination: The Operating Statement referred to herein
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need not be audited but shall contain sufficient detail to enable Tenant to
verify the calculation of its Percentage. In addition, Tenant, upon at least
five days advance written notice to Landlord and during business hours, may
examine any invoices, receipts, canceled checks, vouchers or other instruments
used to support the figures shown on the Operating Statement, provided however,
that Tenant shall only be entitled to such an examination once in each Operating
Year, and the examination shall not be conducted by anyone who is engaged on a
contingent fee basis to represent Tenant or who is a competitor of Landlord.
Tenant shall also have the one time right to examine the Base Year at any time
during the second lease year upon at least five days advance written notice to
Landlord. Property managers and commercial building owners shall be deemed
competitors of Landlord. The person conducting the examination on behalf of
Tenant shall enter into a confidentiality agreement satisfactory to Landlord.
In the event the examination fails to discover a valid overcharge in excess of
5% of the Operating Expense payments during the Operating Year covered by the
examination, Tenant shall reimburse Landlord for the reasonable costs incurred
by Landlord due to the examination. In the event the examination discloses an
over charge in excess of five percent (5%), Landlord shall promptly refund such
over charge and shall pay to Tenant all reasonable costs incurred for the
examination.
5.6 Disputes: Each such Operating Statement given by Landlord pursuant
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to this Section shall be conclusive and binding upon Tenant unless within ninety
(90) days after the receipt of such Operating Statement Tenant shall notify
Landlord that it disputes the correctness of the Operating Statement, specifying
the particular respects in which the Operating Statement is claimed to be
incorrect. If such disputes shall not have been settled by agreement, either
party, within thirty (30) days after receipt of
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LEASE AGREEMENT
such Statement, may pursue its available legal remedies, but Tenant hereby
agrees that a dispute over the Operating Statement or any error by Landlord in
interpreting or applying Section 4 or in calculating the amounts in the
Operating Statement shall not be a breach of this Lease by Landlord, and even if
any legal proceeding over the Operating Statement is resolved against Landlord
this Lease shall remain in full force and effect and Landlord shall not be
liable for any consequential damages, and pending the determination of such
dispute, Tenant, within ten (10) days of receipt of such Operating Statement,
shall pay Additional Rent in accordance with the Operating Statement, without
prejudice to Xxxxxx's position. If the dispute shall be determined in Tenant's
favor, Landlord shall forthwith pay to Tenant the amount of Tenant's overpayment
of rents resulting from compliance with the Operating Statement.
5.7 Payment: If an Operating Year ends after the expiration or
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termination of this Lease, the Additional Rent in respect thereof payable under
this Section shall be paid by Tenant within ten (10) days of its receipt of the
Operating Statement for such Operating Year.
5.8 No Reduction in Amount of Base Rent: Nothing in the Lease
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shall be construed to mean the Base Rent amount specified in the Basic Lease
Information shall be reduced due to any decrease in Operating Expenses, it being
intended that the amount of the Base Rent remain fixed throughout the Lease
Term.
SECTION 6. SECURITY DEPOSIT:
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The provisions of this Section 6 have been intentionally deleted for the
benefit of the Tenant only and in the event that the Tenant seeks the Landlord's
approval to assign this Lease or sublet the Premises, the Landlord reserves the
right to require that a security deposit be paid and that provisions relating to
the security deposit be inserted into this Lease.
SECTION 7. SUBORDINATION, NOTICE TO SUPERIOR LESSORS AND MORTGAGEES:
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7.1 Subordination: Any lease to which this Lease is, at the time
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referred to, subject and subordinate is herein called "Superior Lease" and the
lessor of a Superior Lease or its successor in interest, at the time referred
to, is herein called "Superior Lessor," and any mortgage to which this Lease is,
at the time referred to, subject and subordinate is herein called "Superior
Mortgage" and the holder of a Superior Mortgage, or its successor in interest,
at the time referred to, is herein called "Superior Mortgagee." This Lease, and
all rights of Tenant hereunder, are and shall be subject and subordinate to any
ground leases covering the Land and/or the Building now or hereafter existing,
and to all mortgages which may now or hereafter affect the Land and/or the
Building and/or any of such leases, whether or not such mortgages shall also
cover other lands and/or buildings and/or leases, to each and every advance made
or hereafter to be made under such mortgages, and to all renewals,
modifications, replacements and extensions of such leases and such mortgages.
This Section shall be self-operative, and no further instrument of subordination
shall be required. In confirmation of such subordination, Tenant shall promptly
execute, acknowledge or deliver any instrument that Landlord, any Superior
Lessor or any Superior Mortgagee may reasonably request to evidence such
subordination. The Landlord shall indemnify and hold the Tenant harmless from
all claims and damages, including reasonable attorney's fees, in the event that
any such Superior Lessor terminates this Lease.
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LEASE AGREEMENT
7.2 Notice: If any act or omission of Landlord would give Tenant the
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right, immediately or after lapse of a period of time, to cancel or terminate
this Lease, or to claim a partial or total eviction, Tenant shall not exercise
such right: (i) until it has given written notice of such act or omission to
Landlord and each Superior Mortgagee and each Superior Lessor whose name and
address shall previously have been furnished to Tenant; and (ii) until a
reasonable period of time, not to exceed thirty (30) days, for such parties to
cure the condition has passed; provided, however, in the case of a default which
cannot with due diligence be cured within such time period duly commence curing
the default within such time period, and thereafter diligently prosecute to
completion all steps necessary to remedy the default.
7.3 Attornment: For the purposes of this Section, the term "Successor
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Landlord" shall mean the Superior Lessor or Superior Mortgagee if the same
succeeds to the rights of Landlord under this Lease, whether through possession
or foreclosure action or delivery of a new lease or deed, or any third party
that succeeds to the rights of Landlord under this Lease by virtue of having
purchased the Land and the Building at a foreclosure sale. The Successor
Landlord shall accept Xxxxxx's attornment, assume Xxxxxxxx's obligations under
the Lease, and shall not disturb Tenant's quiet possession of the Premises.
Tenant shall attorn to and recognize such Successor Landlord as Xxxxxx's
Landlord under this Lease and shall promptly execute and deliver any instrument
that such Successor Landlord may reasonably request to evidence such attornment.
Upon such attornment this Lease shall continue in full force and effect as a
direct lease between the Successor Landlord and Tenant upon all of the terms,
conditions and covenants as are set forth in this Lease except that the
Successor Landlord shall not: (i) be liable for any previous act or omission of
Landlord under this Lease except that the Successor Landlord shall have a
reasonable period of time to cure any continuing breach of this Lease caused by
the Landlord's prior acts or omissions; (ii) be subject to any offset,
deficiency or defense which theretofore shall have accrued to Tenant against
Landlord; (iii) be bound by any previous modification of this Lease or by any
previous prepayment of more than one (1) month's Base Rent, unless such
modification or prepayment shall have been expressly approved in writing by the
Superior Lessor or the Superior Mortgagee whose name and address shall
previously have been furnished to Tenant and through or by reason of which the
Successor Landlord shall have succeeded to the right of Landlord under this
Lease; (iv) be liable for the commencement or completion of any construction or
any contribution toward construction or installation of any improvements upon
the Premises required under this Lease, or any expansion or rehabilitation of
existing improvements upon the Premises, or for restoration of improvements
following any casualty not required to be insured under this Lease or for the
costs of any restoration in excess of the proceeds recovered under any insurance
required to be carried under this Lease; (v) be liable for any lien, right,
power or interest, if any, which may have arisen or intervened in the period
between the recording of any Superior Mortgage and the execution of this Lease
or any lien or judgment which may arise at any time under the terms of this
Lease; or (vi) be liable for the return of any security deposit which was not
actually transferred to the Successor Landlord. Successor Landlord shall be
deemed to have agreed, by taking title to the Building, to undertake all of
Landlord's obligations under this Lease arising after such attornment.
SECTION 8. QUIET ENJOYMENT:
--------- -----------------
So long as Tenant pays all of the Base Rent and Additional Rent and
performs all of Tenant's other obligations hereunder, Tenant shall peaceably and
quietly have, hold and enjoy the Premises without hindrance, ejection or
molestation by Landlord
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or any person lawfully claiming through or under Xxxxxxxx, subject nevertheless,
to the provisions of this Lease and to any Superior Lease and/or Superior
Mortgage. This covenant shall be construed as a covenant running with the Land,
and is not, nor shall it be construed as, a personal covenant of Landlord,
except to the extent of Landlord's interest in this Lease and only so long as
such interest shall continue, and thereafter this covenant shall be binding only
upon subsequent successors in interest of Landlord's interest in this Lease, to
the extent of their respective interests, as and when they shall acquire the
same, and so long as they shall retain such interest.
SECTION 9. ASSIGNMENT AND SUBLETTING:
--------- -------------------------
9.1 Generally: Tenant shall not sell, assign, sublet, encumber or
---------
otherwise transfer by operation of law or otherwise this Lease or any interest
herein, or the Premises or any portion thereof, without the prior written
consent of Landlord which consent shall not be unreasonably withheld or
conditioned nor shall Tenant permit any lien to be placed on the Tenant's
interest by operation of law. Any change in effective control of a corporation,
partnership or other artificial entity which is the Tenant shall be deemed a
transfer of this Lease. Any transfer hereunder by Tenant shall not result in
Tenant being released or discharged from any liability under this Lease. Any
sale, assignment, encumbrance, subletting, occupation, lien or other transfer of
this Lease which does not comply with the provisions of this Section 9 shall be
void. Any listing on Building directories or other signage using a name other
than Xxxxxx's in conjunction with the Premises will not be deemed, nor will it
substitute for, Xxxxxxxx's consent, as required by this Lease, to any sublease,
assignment or other occupancy of the Premises. For the purposes hereof, the
term "change in effective control" shall mean: a sale by Tenant of all or
substantially all of its assets or substantially all of its stock if Tenant is a
publicly traded corporation, a merger of Tenant with another corporation, the
transfer of 25% or more of the stock in a corporate tenant whose stock is not
publicly traded, or transfer of 25% or more of the beneficial ownership interest
in a partnership tenant. Landlord acknowledges that Tenant is in the process of
"going public" which shall not be considered a "change in effective control" for
the purposes hereof.
9.1.1 Tenant shall, by written notice, advise Landlord of its desire
from and after a stated date (which shall not be less than thirty [30] days nor
more than ninety [90] days after the date of Tenant's notice), to transfer its
interest in the Premises or any portion thereof for any part of the term hereof;
and such notice by Tenant shall state the name and address of the proposed
transferee, and Tenant shall deliver to Landlord a true and complete copy of the
proposed transfer instrument with said notice.
9.1.2 Upon any request by Xxxxxx to transfer all or any part of the
Premises, Landlord shall have the right to either: (a) permit the transfer on
the conditions referred to in Section 9.2 and any other conditions Landlord may
impose; (b) deny Tenant's request, in which event this Lease shall continue in
full force and effect and unmodified; or (c) terminate this Lease by written
notice to Tenant with respect to the portion of the Premises described in
Tenant's notice and if Landlord desires, to then lease such space to any party
including the transferee identified in Xxxxxx's notice at whatever times
Landlord establishes. If Landlord does not consent and elects to terminate the
Lease as to such portion, Tenant may within fifteen (15) days after notice from
Landlord to this effect withdraw Xxxxxx's request for consent. Any such
termination with respect to less than all of the Premises shall result in a
percentage reduction in Rent equal
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to the percentage of the Premises as to which the Lease is terminated.
9.2 Conditions of Landlord's Consent: As a condition to Landlord's
--------------------------------
prior written consent as provided for in this Section 9, (a) Tenant shall pay
Landlord its reasonable legal fees and costs incurred due to the transfer; (b)
the transferee(s) shall agree in writing to comply with and be bound by all of
the terms, covenants, conditions, provisions and agreements of this Lease, and
(c) Tenant shall deliver to Landlord, promptly after execution, an executed copy
of each transfer instrument and an agreement of said compliance by each
transferee. Landlord may require as a condition of granting consent to a
transfer that Tenant shall pay to Landlord all profits from the transfer
determined by deducting from the total consideration paid directly or indirectly
to or for the benefit of Tenant or its designee for the transferred interest,
the reasonable costs of the transfer incurred by the Tenant and subtracting the
remaining rent obligation of the Tenant at such time under this Lease. For
purposes of determining all profits from the transfer, substance shall control
over form such that Landlord may ignore any attempt by Tenant to inflate the
purchase price of any other assets transferred in an attempt to conceal the
profit on the transfer of the Tenant's interest in this Lease. Sums payable
hereunder shall be paid to Landlord as and when paid by the transferee to
Tenant.
SECTION 10. INSURANCE:
---------- ---------
10.1 Waiver of Right of Recovery: Whenever (a) any loss, cost, damage,
---------------------------
or expense resulting from fire, explosion, or any other casualty or occurrence
is incurred by either of the parties to this Lease, or anyone claiming by,
through, or under it in connection with the Building or the Premises, and (b)
such party is then covered in whole or in part by insurance (or so required by
operation of law or this Lease to be covered by insurance) with respect to such
loss, cost, damage, or expense or required under this Lease to be so insured,
then the party so insured hereby releases the other party from any liability
said other party may have on account of such loss, cost, damage, or expense to
the extent of any amount recovered by reason of such insurance (or which could
have been recovered had such insurance been carried as so required) and waives
any right of subrogation which might otherwise exist in or accrue to any person
on account thereof. Notwithstanding anything herein to the contrary, each party
shall remain fully liable for the payment of deductibles under their respective
insurance policies.
10.2 Public Liability Insurance: Tenant, at its expense, shall
--------------------------
maintain at all times during the term of this Lease, public liability insurance
in respect of the Premises and the conduct or operation of business therein,
with Landlord, its asset manager and property manager, if any, and any Superior
Lessor or Superior Mortgagee whose name and address shall previously have been
furnished to Tenant, as additional insureds, with One Million and No/100 Dollars
($1,000,000.00) minimum combined single limit coverage, or its equivalent, with
deductibles in such amounts as specified by Landlord in Landlord's reasonable
discretion. All such insurance shall insure the performance by Tenant of the
indemnity agreement as to liability for injury to, illness of, or death of
persons and damage to property set forth in Section 17. Tenant shall deliver to
Landlord and any additional insured XXXXX Form 25-S certificates of insurance
issued by the insurance company or its authorized agent, at least ten (10) days
before the Commencement Date. Tenant shall procure and pay for renewals of such
insurance from time to time before the expiration thereof, and Tenant shall
deliver to Landlord and any additional insured such renewal certificate at least
thirty (30) days before the expiration of any existing policy.
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LEASE AGREEMENT
10.3 Acceptable Insurance Companies: All insurance policies required
------------------------------
to be carried by Tenant hereunder shall be issued by responsible insurance
companies authorized to issue insurance in the State of Colorado rated A- or
better and a financial size category of class 10 or better by Best's Insurance
Rating Service, or such other rating service reasonably selected by Landlord in
the event that Best's Insurance Rating Service ceases issuing such ratings.
10.4 Increase in Coverage: Landlord may from time to time, but not
--------------------
more frequently than once every three (3) years, require that the amount of
public liability insurance to be maintained by Tenant under Section 10.2 be
increased so that the amount thereof adequately protects the Landlord's interest
based on amounts of coverage required of comparable tenants in comparable
buildings.
10.5 Landlord's Insurance: Landlord shall maintain property insurance for
--------------------
the Building, the Premises and all improvements which Landlord has the
obligation to maintain and repair insured against loss or damage by fire,
lightning, windstorm, explosion and/or all other extended coverage risks in an
amount equal to the full replacement value thereof, from such companies, and on
terms and conditions, including insurance for loss of Rent as Landlord deems
appropriate from time to time.
SECTION 11. RULES AND REGULATIONS:
---------- ---------------------
Tenant shall faithfully observe and comply with the rules and
regulations printed on or annexed to this Lease as EXHIBIT E and all reasonable
---------
modifications thereof and additions thereto from time to time established by
Landlord by written notice to Xxxxxx. Landlord shall not be responsible for the
nonperformance by any other Tenant or occupant of the Building of any said rules
and regulations but Landlord shall use reasonable efforts to remedy any
violation of the rules and regulations applicable to any other Building occupant
upon Xxxxxx's request.
SECTION 12. ALTERATIONS:
---------- -----------
12.1 Requirements: Tenant shall not make or suffer to be made any
------------
alterations, additions, or improvements in, on, or to the Premises or any part
thereof without first obtaining the prior written consent of Landlord, which
shall not be unreasonably withheld, conditioned or delayed. Any such
alterations, additions, or improvements in, on, or to said Premises, except for
Tenant's movable furniture and equipment, shall immediately become Landlord's
property and, at the end of the term hereof, shall remain on the Premises
without compensation to Tenant. In the event Landlord consents to the making of
any such alterations, additions, or improvements by Tenant, the same shall be
made by Tenant, at Tenant's sole cost and expense, in accordance with plans and
specifications approved by Landlord, and any contractor or person selected by
Tenant to make the same must first be approved in writing by Landlord. In the
event Landlord consents, Xxxxxxxx agrees to reasonably cooperate with Xxxxxx in
obtaining all necessary building permits and approvals. If the alterations,
additions or improvements shall be made by Landlord for Tenant's account, Tenant
shall reimburse Landlord for the cost thereof within twenty (20) days after
receipt of a statement, setting forth the actual cost of such alterations,
additions or improvements. In any event, Tenant shall pay Landlord an
administrative charge of fifteen percent (15%) of the actual cost of such
alterations, additions or improvements. After the expiration or sooner
termination of the Lease Term and upon demand by Landlord, Tenant shall remove
any or all alterations, additions, or improvements made by or for the account of
Tenant, designated by Landlord to be removed, and Tenant shall repair and
restore the Premises to their original condition, subject to ordinary wear and
tear. Such
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LEASE AGREEMENT
removal, repair and restoration work shall be done promptly and with all due
diligence at Tenant's sole cost and expense. The provisions of this Section 12
shall not apply to the initial Tenant Improvements described in Exhibit C to
this Lease.
12.2 Indemnification of Landlord: Tenant, at its expense, and with
---------------------------
diligence and dispatch, shall procure the cancellation or discharge of all
notices of violation arising from or otherwise connected with alterations, or
any other work, labor, services or materials done for or supplied to Tenant, or
any other person claiming through or under Tenant, which shall be issued by any
public authority having or asserting jurisdiction. Tenant shall defend,
indemnify and save harmless Landlord and any Superior Lessor or Superior
Mortgagee from and against any and all mechanic's and other liens and
encumbrances filed in connection with alterations, or any other work, labor,
services or materials done for or supplied to Tenant, or any person claiming
through or under Tenant, including, without limitation, security interests in
any materials, fixtures or articles so installed in and constituting part of the
Premises and against all costs, expenses and liabilities incurred in connection
with any such lien or encumbrance or any action or proceeding brought thereon.
Tenant, at its expense, shall procure the satisfaction or discharge of record of
all such liens and encumbrances within fifteen (15) days after the filing
thereof. Nothing herein contained shall prevent Tenant from contesting, in good
faith and at its own expense, any notice of violation, or lien provided Tenant
posts for the protection of Landlord security acceptable to Landlord.
SECTION 13. LANDLORD'S AND TENANT'S PROPERTY:
---------- --------------------------------
13.1 Landlord's Property: All fixtures, carpeting, equipment,
-------------------
improvements and appurtenances attached to or built into the Premises at the
commencement of or during the term of this Lease, whether or not by or at the
expense of Tenant, shall be and remain a part of the Premises, shall be deemed
the property of Landlord and shall not be removed by Tenant, except as provided
in Section 13.2; provided, that at Landlord's written request given at the time
Tenant requests such alteration or addition to the Premises, Tenant shall, at
its sole expense and upon termination of the Lease, remove those items specified
by Landlord, including any or all fixtures, equipment, improvements,
appurtenances and other personal property, which are deemed herein the property
of Landlord, but not including the initial Tenant Improvements provided by
Landlord pursuant to Exhibit C of this Lease. Tenant's covenant to remove
property specified by Landlord shall survive the termination of this Lease.
13.2 Tenant's Property: All unattached business and trade fixtures,
-----------------
machinery and equipment, communications equipment and office equipment which are
installed in the Premises by or for the account of Tenant without expense to
Landlord and which can be removed without structural damage to the Building and
all furniture, furnishings (excluding window coverings) and other articles of
movable personal property owned by Tenant and located in the Premises (herein
collectively called "Tenant's Property") shall be and remain the property of
Tenant and may be removed by Tenant at any time during the term of this Lease;
provided, that if any of Tenant's Property is removed, Tenant shall repair or
pay the cost of repairing any damage to the Premises or to the Building
resulting from the installation and/or removal thereof. Any equipment or other
property for which Landlord shall have granted any allowance or credit to Tenant
shall be deemed not to have been installed by or for the account of Tenant
without expense to Landlord, shall not be considered Tenant's Property, and
shall be deemed the property of Landlord.
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LEASE AGREEMENT
13.3 Abandonment: Any items of Tenant's Property may be deemed, at the
-----------
option of Landlord, to have been abandoned if left in the Premises after the
abandonment deadline, and in such case such items may be retained by Landlord,
without accountability, in such manner as Landlord shall determine at Tenant's
expense. The abandonment deadline means the earlier of the expiration date of
this Lease, or fifteen (15) days following an earlier termination date, or three
(3) days following entry of an order of possession for restoration of the
Premises to Landlord.
SECTION 14. SERVICES AND UTILITIES:
---------- ----------------------
14.1 Building Maintenance: Landlord shall maintain the public and
--------------------
common areas of the Building, such as the lobbies, stairs, elevators, corridors
and rest rooms, the windows in the Building, the mechanical, plumbing and
electrical equipment serving the Building, and the structure itself, in
reasonably good order and condition except for damage occasioned by the act of
the Tenant, which damage shall be repaired by Landlord at Tenant's expense.
14.2 Utilities: To the extent allowed by law, provided the Tenant shall
---------
not be in default hereunder, and subject to the provisions elsewhere herein
contained and to the rules and regulations of the Building, Landlord agrees to
furnish to the Premises (i) heat and air-conditioning required in Landlord's
reasonable judgment for the comfortable use and occupation of the Premises from
7:00 A.M. to 7:00 P.M. on weekdays, exclusive of legal holidays, (ii) continuous
water and electricity service suitable for the intended use of the Premises,
(iii) janitorial services after 6:00 P.M. on weekdays exclusive of legal
holidays in the manner that such services are, in Landlord's reasonable
judgment, customarily furnished in comparable office buildings in the immediate
market area, and (iv) continuous elevator service which shall mean service by
unattended automatic elevators. Landlord shall provide additional or after-
hours heating or air-conditioning at Tenant's request, and Tenant shall pay to
Landlord a reasonable charge for such services as determined by Landlord.
Xxxxxx agrees to keep and cause to be kept closed all window coverings when
necessary because of the sun's position, and Xxxxxx also agrees at all times to
cooperate fully with Landlord and to abide by all the regulations and
requirements which Landlord may prescribe for the proper functioning and
protection of the heating, ventilating, and air-conditioning system. Wherever
heat-generating machines, excess lighting or equipment are used in the Premises
which affect the temperature otherwise maintained by the air-conditioning
system, Landlord reserves the right to install supplementary air-conditioning
units in the Premises, and the cost thereof, including the cost of installation
and the cost of operation and maintenance thereof, shall be paid by Tenant to
Landlord upon demand by Landlord. Any sums payable under Section 14 shall be
considered Additional Rent and may be added to any installment of Base Rent
thereafter becoming due, and Landlord shall have the same remedies for a default
in payment of such sum as for a default in the payment of Base Rent.
14.3 Excess Usage: If Tenant uses excessive amounts of non-metered
------------
utilities or services of any kind because of operation outside of normal
Building hours, high demands from office machinery and equipment, nonstandard
lighting, or any other cause, Landlord may impose a reasonable charge for
supplying such extra utilities services, which charge shall be payable monthly
by Tenant in conjunction with Rent payments. Landlord may install in the
Premises a special meter to measure the amount of water, electric current or
other resource consumed for any such other use. In case of dispute over any
extra charge under this paragraph, Landlord and Xxxxxx shall agree upon a
qualified independent engineer whose decision shall be conclusive on both
parties. The party not
15
LEASE AGREEMENT
prevailing in such dispute shall pay the cost of such engineer's determination.
14.4 Disclaimer: Landlord shall not be in default hereunder or be
----------
liable for any damages directly or indirectly resulting from, or by reason of
(i) the installation, use or interruption of use of any equipment in connection
with the furnishing of the foregoing utilities and services, (ii) failure to
furnish or delay in furnishing any such utilities or services when such failure
or delay is caused by acts of God or the elements, labor disturbances of any
character, any other accidents or other conditions beyond the reasonable control
of Landlord, or by the making of repairs or improvements to the Premises or the
Building, or (iii) the limitation, curtailment, rationing or restriction on use
of water or electricity, gas or any other form of energy or any other service or
utility whatsoever serving the Premises or the Building. Furthermore, Landlord
shall be entitled to cooperate voluntarily in a reasonable manner with the
efforts of national, state or local governmental agencies or utilities suppliers
in reducing energy or other resource consumption. Notwithstanding the
foregoing, in the event there is an interruption of utilities or services for
more than three (3) days, Tenant's obligation to pay rent shall xxxxx until such
time as the utilities or services are restored.
14.5 Use of Common Areas and Facilities: All common facilities and
----------------------------------
areas furnished by Landlord in or near the Building, including parking areas,
lighting facilities, pedestrian sidewalks and ramps, landscaped areas, exterior
stairways, rest rooms and other areas and improvements provided by Landlord for
the general use, in common, of tenants, their officers, agents, employees and
customers shall at all times be subject to the exclusive control and management
of Landlord. Without limiting the scope of such discretion, Landlord shall have
the full right and authority to employ all personnel and to establish, modify
and enforce reasonable rules and regulations necessary for the proper operation
and maintenance of common areas and facilities. Landlord shall have the right
to close all or any portion of the common areas or facilities to such extent as,
in the opinion of Landlord's legal counsel, may be legally sufficient to prevent
a dedication thereof or the accrual of any rights to any person (other than
Tenant) or the public therein; and to do and perform such other acts in and to
said areas and improvements as the Landlord shall reasonably determine to be
advisable. All common areas and facilities not within the Premises, which
Tenant may be permitted to use and occupy, are to be used and occupied under a
revocable license, and if the amount of such areas be diminished, Landlord shall
not be subject to any liability nor shall Tenant be entitled to any compensation
or diminution or abatement of Rent, nor shall such diminution of such areas be
deemed constructive or actual eviction.
14.6 Parking Facilities: Intentionally omitted.
------------------
14.7 Signage: Landlord shall provide Tenant, at no additional charge,
-------
Building standard signage. Tenant shall have the right to place exterior
signage on the Building in areas reasonably designated by Landlord and which
signage shall not be unreasonably withheld or conditioned by Landlord. In
granting its consent for exterior signage, Landlord shall have the right to take
into account all governmental requirements and that the Tenant is not the sole
Tenant of the Building.
14.8 Mailbox: Landlord shall furnish Tenant, without additional charge,
-------
a locked mailbox in the Building.
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SECTION 15. ACCESS AND NAME:
---------- ---------------
Landlord reserves, and shall at all times have, the right to re-enter
the Premises upon 24 hours' prior notice to Tenant (except in an emergency) to
inspect the same, to supply janitor service and any other service to be provided
by Landlord to Tenant, to show the Premises to prospective purchasers,
mortgagees or tenants, to post notices of nonresponsibility, and to alter,
improve or repair the Premises and any portion of the Building of which the
Premises are a part, without abatement of Rent. For such purpose, Landlord may
erect, use and maintain scaffolding, pipes, conduits and other necessary
structures in and through the Premises where reasonably required by the
character of the work to be performed, provided that entrance to the Premises
and Tenant's exterior and lobby signage shall not be blocked thereby, and
further provided that the business of Tenant shall not be interfered with
unreasonably. Tenant hereby waives any claim for damages for any injury or
inconvenience to or interference with Xxxxxx's business, any loss of occupancy
or quiet enjoyment of the Premises and any other loss occasioned by Xxxxxxxx's
conduct pursuant to this Section. For each of the purposes stated in this
Section, Landlord shall at all times have and retain a key with which to unlock
all of the doors in, upon and about the Premises, excluding Tenant's vaults and
safes or special security areas (designated in advance). Landlord shall have
the right to use any and all means which Landlord may deem necessary or proper
to open all doors in an emergency, in order to obtain entry to any portion of
the Premises, and any entry to any portion of the Premises obtained by Landlord
by any such means, or otherwise shall not under any circumstances be construed
or deemed to be a forcible or unlawful entry into, or a detainer of, the
Premises, or an eviction, actual or constructive, of Tenant from all or part of
the Premises. Landlord shall also have the right at any time, without the same
constituting an actual or constructive eviction and without incurring any
liability to Tenant, to change the arrangement and/or location of entrances,
lobbies, parking facilities, passageways, doors and doorways, corridors,
elevators, stairs, toilets or other public parts of the Building and to change
the name, number or designation by which the Building is commonly known.
SECTION 16. NOTICE OF OCCURRENCES:
---------- ---------------------
Tenant shall give prompt notice to Landlord of: (i) any occurrence in
or about the Premises for which Landlord might be liable; (ii) any fire or other
casualty in the Premises; (iii) any damage to or defect in the Premises
including the fixtures, equipment and appurtenances thereof, for the repair of
which Landlord might be responsible; and (iv) damage to or defect in any part or
appurtenances of the Building's sanitary, electrical, heating, ventilating, air-
conditioning, elevator or other systems located in or passing through the
Premises or any part thereof.
SECTION 17. NONLIABILITY AND INDEMNIFICATION:
---------- --------------------------------
17.1 Waiver: Landlord shall not be liable for any loss or damage to
------
person or property sustained by Tenant, or other persons, which may be caused by
theft, or by any act or neglect of any tenant of the Building or by any other
person in or about the Building. Neither Landlord nor any partner, director,
officer, agent, servant or employee of Landlord shall be liable to Tenant for
any loss, injury or damage to Tenant or to any other person, or to its or their
property, irrespective of the cause of such injury, damage or loss except to the
extent caused by or resulting from the intentional torts or gross negligence of
Landlord, it being the intent of the parties that Tenant look to its own all
risk insurance policy for coverage of any such item resulting from an accident
even if caused by the negligence of Landlord. Further,
17
LEASE AGREEMENT
neither Landlord nor any partner, director, officer, agent, servant or employee
of Landlord shall be liable: (i) for any such damage caused by other tenants or
persons in, upon or about the Building, or caused by operations in construction
of any private, public or quasi-public work; or (ii) in any event for
consequential damages, including lost profits, of Tenant or any person claiming
through or under Tenant. Tenant shall not be liable for any loss or damage to
person or property sustained by Landlord, or other persons, which may be caused
by theft, or by any act or neglect of any tenant of the Building or by any other
person in or about the Building. Neither Tenant nor any partner, director,
officer, agent, servant or employee of Tenant shall be liable to Landlord for
any loss, injury or damage to Landlord or to any other person, or to its or
their property, irrespective of the cause of such injury, damage or loss except
to the extent caused by or resulting from the intentional torts or gross
negligence of Tenant, it being the intent of the parties that Landlord look to
its own all risk insurance policy for coverage of any such item resulting from
an accident even if caused by the negligence of Tenant. Further, neither Tenant
nor any partner, director, officer, agent, servant or employee of Tenant shall
be liable: (i) for any such damage caused by other tenants or persons in, upon
or about the Building, or caused by operations in construction of any private,
public or quasi-public work; or (ii) in any event for consequential damages,
including lost profits, of Landlord or any person claiming through or under
Landlord. In the event of any conflict between this Section 17.1 and Section
17.2, the terms and provisions of Section 17.2 shall control.
17.2 Indemnification: Tenant shall indemnify and hold harmless Landlord
---------------
and all Superior Lessors and/or Superior Mortgagees and its and their respective
partners, directors, officers, agents and employees from and against any and all
third party claims for bodily injury and/or property damage arising from or in
connection with any accident, injury or damage whatever (even if caused by
Xxxxxxxx's negligence or breach of this Lease) occurring in, at or upon the
Premises; together with all costs, expenses and liabilities incurred or in
connection with each such claim or action or proceeding brought thereon,
including, without limitation, all reasonable attorneys' fees and expenses at
trial and upon appeal. In the event of any conflict between this Section 17.2
and Section 17.1, the terms and provisions of Section 17.1 shall control.
17.3 Duty to Defend: In case any action or proceeding is brought
--------------
against Landlord and/or any Superior Lessor and/or Superior Mortgagee and/or its
or their partners, directors, officers, agents and/or employees and such claim
is a claim from which Tenant is obligated to indemnify Landlord pursuant to
Section 17.2, Tenant, upon notice from Landlord or such Superior Lessor or
Superior Mortgagee, shall resist and defend such action or proceeding (by
counsel reasonably satisfactory to Landlord). The obligation of Tenant under
this Section 17 shall survive termination of this Lease.
SECTION 18. DAMAGE OR DESTRUCTION:
---------- ---------------------
18.1 Casualty: If the Premises or the Building are damaged by fire or
--------
other casualty, Landlord shall forthwith repair the same unless this Lease is
terminated as permitted herein. Within twenty (20) days from the date of such
damage, Landlord shall notify Tenant if the Building is damaged in excess of
twenty-five percent (25%) of the Building's precasualty value, as reasonably
determined by Landlord (damage in excess of such amount being referred to as
"Major Damage" and damage equal to or less than such amount being referred to as
"Minor Damage"). If Major Damage occurs, Landlord by written notice to Tenant
within thirty (30) days from the date of casualty may elect to terminate the
Lease, provided, however,
18
LEASE AGREEMENT
that if Major Damage occurs in the last year of the Lease Term, Tenant shall
have the right to terminate this Lease by written notice to Landlord within
thirty (30) days of the casualty. If Minor Damage occurs then Landlord shall
repair such damage and rebuild that portion of the Building or the Premises
damaged. In the event of Major Damage, if Landlord gives its written notice to
Tenant electing to rebuild or in the event of Minor Damage, this Lease shall
remain in full force and effect provided the repairs are completed within one
hundred eighty (180) days except the Rent shall be reasonably abated during the
period of repair based on that portion of the Premises not reasonably usable by
Tenant. If in the event of Major Damage, Landlord elects by written notice to
Tenant not to rebuild, then this Lease shall automatically terminate as of the
effective date of such notice, the Rent shall be reduced by a proportionate
amount based upon the extent to which said damage interfered with the business
carried on by Tenant in the Premises, and the Tenant shall pay such reduced Rent
up to the date of termination. Xxxxxxxx agrees to refund to Tenant any Rent
previously paid for any period of time subsequent to such date of termination.
Landlord shall not be required to repair any damage by fire or other cause to
the property of Tenant.
18.2 Condemnation: If more than twenty-five percent (25%) of the Land
------------
and/or Building shall be taken or appropriated under the power of eminent domain
or conveyed in lieu thereof, Landlord shall have the right to terminate this
Lease. If such taking renders the Premises unsuitable for the conduct of
Xxxxxx's business then Tenant shall have the right to terminate this Lease. If
this Lease is terminated, Landlord shall receive (and Tenant shall assign to
Landlord upon demand from Landlord) any and all income, rent, award or any
interest thereon which may be paid or owed in connection with the exercise of
such power of eminent domain or conveyance in lieu thereof, and Tenant shall
have no claim against the agency exercising such power or receiving such
conveyance, for any part of such sum paid by virtue of such proceedings, whether
or not attributable to the value of the unexpired term of this Lease except for
the unamortized value of Tenant Improvements paid for by Tenant and relocation
benefits, if any. If a part of the Land and/or Building shall be so taken or
appropriated or conveyed and Landlord hereto shall elect not to terminate this
Lease, Landlord shall nonetheless receive (and Tenant shall assign to Landlord
upon demand from Landlord) any and all income, rent, award or any interest
thereon paid or owed in connection with such taking, appropriation or
conveyance; and if the Premises have been damaged as a consequence of such
partial taking or appropriation or conveyance, Landlord shall restore the
Premises and this Lease shall remain in full force and effect except that Tenant
shall be entitled to an appropriate reduction in Rent while such restoration is
being made by Landlord. Such proportionate reduction shall be based upon the
extent to which the restoration being made by Landlord shall interfere with the
business carried on by Tenant in the demised Premises. Landlord will not be
required to repair or restore any injury or damage to the property of Tenant.
SECTION 19. SURRENDER AND HOLDING OVER:
---------- --------------------------
19.1 General: On the last day of the term of this Lease, or upon re-
-------
entry by Landlord upon the Premises, Tenant shall quit and surrender the
Premises to Landlord "broom-clean" and in good order, condition and repair,
except for ordinary wear and tear in accordance with the provisions of Section
13 of this Lease.
19.2 Surrender: No agreement relating to the surrender of the Premises
---------
by Tenant shall be valid unless in writing and signed by Landlord.
19.3 Holding Over with Consent: Any holding over after the
-------------------------
expiration of the term of this Lease with the written consent of
19
LEASE AGREEMENT
Landlord shall be a tenancy from month to month which tenancy may be terminated
by either party by delivering thirty (30) days written notice prior to the end
of any monthly period. The terms, covenants and conditions of such tenancy shall
be the same as provided herein, and the monthly Rent shall be an amount equal to
one hundred twenty-five percent (125%) of the amount of monthly Rent paid during
the last month prior to the holding over, subject to adjustment as provided in
Section 4 herein. Acceptance by Landlord of Rent after such expiration shall not
result in any other tenancy or any renewal of the term of this Lease, and the
provisions of this Section are in addition to and do not affect Landlord's right
of re-entry or other rights provided under this Lease or by applicable law.
19.4 Holding Over Without Consent: If Tenant shall retain possession
----------------------------
of the Premises or any part thereof without Landlord's consent following the
expiration or sooner termination of this Lease for any reason, then Tenant shall
pay to Landlord for each day of such retention 150% of the amount of the daily
Rent for the last period prior to the date of such expiration or termination,
subject to adjustment as provided in Section 4. Tenant shall also indemnify and
hold Landlord harmless from any loss or liability resulting from delay by Xxxxxx
in surrendering the Premises, including, without limitation, any claims made by
any succeeding tenant founded on such delay. Alternatively, if Xxxxxxxx gives
notice to Tenant of Landlord's election thereof, such holding over shall
constitute renewal of this Lease for a period from month to month which tenancy
may be terminated by either party by delivering thirty (30) days written notice
prior to the end of any monthly period. Acceptance of Rent by Landlord
following expiration or termination shall not constitute a renewal of this
Lease, and nothing contained in this Section shall waive Landlord's right of re-
entry or any other right. Unless Landlord exercises the option hereby given to
it, Tenant shall be only a Tenant at sufferance, whether or not Landlord accepts
any Rent from Tenant while Tenant is holding over without Xxxxxxxx's written
consent.
SECTION 20. EVENTS OF DEFAULT:
---------- -----------------
20.1 Events of Default: The occurrence of any one or more of the
-----------------
following events of default shall constitute a breach of this Lease by Tenant:
20.1.1 If Tenant shall default in the payment of any security
deposit, Base Rent or Additional Rent, and such default shall continue for three
(3) days after the due date, provided, however, that the Tenant shall have ten
(10) days to cure such default for the first such notice of default during any
twelve (12) month period; or
20.1.2 If Tenant shall, whether by action or inaction, be in default
of any of its obligations under this Lease (other than a default in the payment
of Base Rent or Additional Rent) and such default shall continue and not be
remedied within fifteen (15) days after Landlord shall have given to Tenant a
notice specifying the same, or, in the case of a default which cannot with due
diligence be cured within such time period and the continuance of which for the
period required for cure will not subject Landlord or any Superior Lessor to
prosecution for a crime or termination of any Superior Lease or foreclosure of
any Superior Mortgage, if Tenant shall not, (i) within such time period advise
Landlord of Tenant's intention to take all steps necessary to remedy such
default; (ii) duly commence within such time period, and thereafter diligently
prosecute to completion all steps necessary to remedy the default; and (iii)
complete such remedy within a reasonable time after the date of said notice of
Xxxxxxxx; or
20
LEASE AGREEMENT
20.1.3 If any event shall occur or any contingency shall arise
whereby this Lease or the estate hereby granted or the unexpired balance of the
term hereof would, by operation of law or otherwise, devolve upon or pass to any
person, firm or corporation other than Tenant, except as expressly permitted by
Section 9; or
20.1.4 If Tenant shall vacate or abandon the Premises; or
20.1.5 If Tenant or any guarantor of Tenant's obligations shall make
a general assignment for the benefit of creditors, or shall be unable to pay its
debts as they become due, or shall file a petition in bankruptcy, or shall be
adjudicated as bankrupt or insolvent, or shall file a petition seeking any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any present or future statute, law or regulation, or
shall file an answer admitting or shall fail timely to contest the material
allegations of a petition filed against it in any such proceeding, or shall seek
or consent to or acquiesce in the appointment of any trustee, receiver or
liquidator of Tenant or any material part of its properties; or
20.1.6 If within ninety (90) days after the commencement of any
proceeding against Tenant or any guarantor of this Lease seeking any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any present or future statute, law or regulation, such
proceeding shall not have been dismissed or if, within ninety (90) days after
the appointment without the consent or acquiescence of Tenant of any trustee,
receiver or liquidator of Tenant or of any material part of its properties, such
appointment shall not have been vacated; or
20.1.7 If this Lease or any estate of Tenant or any guarantor of
this Lease hereunder shall be levied upon under any attachment or execution and
such attachment or execution is not vacated within ten (10) days.
SECTION 21. REMEDIES UPON DEFAULT:
---------- ---------------------
21.1 Remedies: Upon the occurrence of an event of default constituting
--------
a breach of this Lease under Section 20, Landlord may exercise any one or more
of the remedies set forth in this Section 21 or in Section 24, or any other
remedy available under applicable law or contained in this Lease.
21.1.1 Landlord or Landlord's agents and employees may immediately
or at any time thereafter to the extent permitted by law re-enter the Premises,
or any part thereof, either by summary eviction proceedings or by any suitable
action or proceeding at law, or by force or otherwise, without being liable to
indictment, prosecution or damages therefor, and may repossess the same, and may
remove any person therefrom, to the end that Landlord may have, hold and enjoy
the Premises.
21.1.2 Landlord at its option may relet the whole or any part of the
Premises from time to time, either in the name of the Landlord or otherwise, to
such tenants, for such terms ending before, on or after the expiration date of
the Lease Term, at such rentals and upon such other conditions (including
concessions, tenant improvements, and free rent periods) as Landlord may
determine to be appropriate. Landlord at its option may make such physical
changes to the Premises as Landlord considers advisable or necessary in
connection with any such reletting or proposed reletting, without relieving
Tenant of any liability under this Lease or otherwise affecting Tenant's
liability. If there is other unleased space in the Building, Landlord may lease
such other space without prejudice to its remedies against Tenant.
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LEASE AGREEMENT
21.1.3 Whether or not Landlord retakes possession or relets the
Premises, Landlord shall have the right to recover unpaid rent and all damages
caused by the default as well as all costs and expenses incurred in connection
with the enforcement of this Lease, including reasonable attorney fees and court
costs. Damages shall include, without limitation: (i) all rentals lost; (ii)
all reasonable legal expenses and other related costs incurred by Landlord
following Tenant's default; (iii) all costs incurred by Landlord in restoring
the Premises to good order and condition, or in remodeling, renovating or
otherwise preparing the Premises for reletting; and (iv) all costs incurred by
Landlord in reletting the Premises, including, without limitation, any brokerage
commissions and the value of Landlord's time.
21.1.4 To the extent permitted under Colorado law, Landlord may sue
periodically for damages as they accrue without barring a later action for
further damages. Landlord may in one action recover accrued damages plus
damages attributable to the remaining Lease Term equal to the difference between
the rent reserved in this Lease (including an estimated amount of Additional
Rent as determined by Landlord) for the balance of the Lease Term after the time
of award, and the fair rental value of the Premises for the same period
(including an estimated amount of Additional Rent), discounted to the time of
award at the rate of nine percent (9%) per annum. If Landlord has relet the
Premises for the period which otherwise would have constituted the unexpired
portion of the Lease Term or any part, 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.
21.1.5 To seize and dispose of Tenant's Property (as that term is
defined in Section 13.2) in any manner permitted by law.
21.2 Cumulative Remedies: The remedies provided for in this Lease are
-------------------
cumulative and are not intended to be exclusive of any other remedies to which
Landlord may lawfully be entitled at any time, and Landlord may invoke any
remedy allowed at law or in equity, including an action for specific
performance, as if specific remedies were not provided for herein. In the event
of a breach or threatened breach by Tenant of any of its obligations under this
Lease, Landlord shall also have the right to obtain an injunction and any other
appropriate equitable relief.
21.3 Termination: Even though Tenant has breached this Lease, the Lease
-----------
shall continue in effect for so long as Landlord does not terminate Tenant's
possession of the Premises or Tenant does not abandon the Premises. Even after
Tenant is no longer in possession of the Premises, Tenant shall have continuing
contractual liability under the Lease, and Landlord may enforce its rights and
remedies under this Lease in the event of a breach, including the right to
recover its damages for loss of Rent for the remainder of the Lease Term after
Tenant is dispossessed of the Premises. Acts of maintenance or preservation or
efforts to relet the Premises or the appointment of a receiver upon initiative
of Landlord to protect Xxxxxxxx's interest under this Lease shall not constitute
a termination of Tenant's contractual liability under the Lease unless written
release of liability is given by Landlord to Tenant.
21.4 Interest on Damages: In addition to any other remedies Landlord
-------------------
may have under this Lease, and without reducing or adversely affecting any of
Landlord's rights and remedies under this Section 21, if any Base Rent,
Additional Rent or damages payable hereunder by Tenant to Landlord are not paid
within ten (10) days after demand therefor or the date on which the same is due,
the same shall bear interest at the annual rate of fifteen
22
LEASE AGREEMENT
percent (15%) or the maximum rate permitted by law, whichever is less,
calculated monthly from the due date thereof until paid, and the amount of such
interest shall be included as Additional Rent.
SECTION 22. SERVICES IN THE EVENT OF DEFAULT:
---------- --------------------------------
To the extent permitted by law, in addition to any rights and remedies
which Landlord may have under this Lease, if there shall be a default hereunder
by Tenant which shall not have been remedied within the applicable grace period,
Landlord shall not be obligated to furnish Tenant or the Premises any heat,
ventilation or air-conditioning services outside of business hours on business
days, or any extra or additional cleaning services; and the discontinuance of
any one or more such services shall be without liability by Landlord to Tenant
and shall not reduce, diminish or otherwise affect any of Tenant's covenants and
obligations under this Lease.
SECTION 23. NO WAIVERS OF PERFORMANCE:
---------- -------------------------
The failure of either party to insist in any one or more instances upon the
strict performance of any one or more of the obligations of this Lease, or to
exercise any election herein contained, shall not be construed as a waiver or
relinquishment for the future of the performance of such one or more obligations
or any other obligations of this Lease or of the right to exercise such
election, but the same shall continue and remain in full force and effect with
respect to any subsequent breach, act or omission. The receipt by Landlord of
Rent with knowledge of a breach by Tenant of any obligation of this Lease shall
not be deemed a waiver of such breach.
SECTION 24. CURING TENANT'S DEFAULTS:
---------- ------------------------
All covenants and agreements to be performed by the Tenant under any
of the terms of this Lease shall be performed by Tenant at Tenant's sole cost
and expense and without any abatement of Rent except as expressly provided
otherwise herein. If the Tenant shall fail to pay any sum of money, other than
Rent, required to be paid by it hereunder or shall fail to perform any other act
on its part to be performed hereunder, and such failure shall continue for the
periods referred to in Section 20 hereof after notice thereof by the Landlord,
the Landlord may make any such payment or perform any such act on the Tenant's
part to be made or performed as in this Lease provided but shall not be
obligated so to do. Any such payment or performance shall not be a waiver or
release of Tenant's obligations. All sums so paid by the Landlord and all
necessary incidental costs together with interest thereon at the rate specified
in Section 21.4 from the date of such payment by the Landlord shall be payable
as Additional Rent to the Landlord on demand, and the Tenant covenants to pay
any such sums, and the Landlord shall have, in addition to any other right or
remedy of the Landlord, the same rights and remedies in the event of the
nonpayment thereof by the Tenant as in the case of default by the Tenant in the
payment of the Rent.
SECTION 25. BROKER:
---------- ------
Tenant covenants, warrants and represents that no broker except as
provided in the Basic Lease Information (the "Broker") was instrumental in
bringing about or consummating this Lease and that Tenant had no conversations
or negotiations with any broker except the Broker concerning the leasing of the
Premises. Xxxxxx agrees to indemnify and hold harmless Landlord against and
from any claims for any brokerage commissions and all costs, expenses and
liabilities in connection therewith, including, without limitation, attorney
fees and expenses, arising out of any conversations or negotiations had by
Xxxxxx with any broker other than the Broker.
23
LEASE AGREEMENT
Landlord shall pay any brokerage commissions due the Broker as per a separate
agreement between Landlord and the Broker. Landlord covenants, warrants and
represents that no broker other than the Broker was instrumental in bringing
about or consummating this Lease. Xxxxxxxx agrees to indemnify and hold harmless
Tenant against and from any claims for any brokerage commissions and all costs,
expenses and liabilities in connection therewith, including, reasonable
attorney's fees and expenses, arising out of any brokerage claims which the
Landlord is obligated to pay.
SECTION 26. NOTICES:
---------- -------
Any notice, statement, demand, consent, approval or other communication
required or permitted to be given, rendered or made by either party to the
other, pursuant to this Lease or pursuant to any applicable law or requirement
of public authority, shall be in writing (whether or not so stated elsewhere in
this Lease). Notices shall be deemed to have been properly given, rendered or
made: if delivered in person to the Landlord or Tenant and receipt is
acknowledged; or, if sent postage prepaid by registered or certified mail,
return receipt requested, effective forty-eight (48) hours after posted in a
United States post office station or letter box in the continental United
States, addressed to the other party at the address designated by the party
(except that after the Commencement Date, Tenant's address, unless Tenant shall
give notice to the contrary, shall be the Building). Either party may, by notice
as aforesaid, designate a different address or addresses for notices,
statements, demands, consents, approvals or other communications intended for
it.
SECTION 27. ESTOPPEL CERTIFICATES:
---------- ---------------------
Tenant agrees, at any time and from time to time, as requested by Landlord
with not less than ten (10) days' prior notice, to execute and deliver to
Landlord a statement certifying that this Lease is unmodified and in full force
and effect (or if there have been modifications, that the same is in full force
and effect as modified and stating the modifications), certifying the dates to
which the Base Rent and Additional Rent have been paid, stating whether or not,
to the best knowledge of the signer, the Landlord is not in default in
performance of any of its obligations under this Lease, and, if so, specifying
each such default of which the signer shall have knowledge, and stating whether
or not, to the best knowledge of the signer, any event has occurred which with
the giving of notice or passage of time, or both, would constitute such a
default, and, if so, specifying each such event, it being intended that any such
statement delivered pursuant hereto shall be deemed a representation and
warranty to be relied upon by the Landlord and by others with whom the Landlord
may be dealing, regardless of independent investigation. Tenant also shall
include in any such statement such other information concerning this Lease as
Landlord may reasonably request. If Tenant fails to respond within fifteen (15)
days of receipt by Tenant of a written request for such a statement, the Tenant
shall be deemed to have given such statement and shall be deemed to have
admitted the accuracy of any information contained in the request for such
statement and that the Lease is unmodified and in full force and effect, that
there are not uncured defaults in Landlord's performance, and that not more than
one (1) month's Rent has been paid in advance.
SECTION 28. MEMORANDUM OF LEASE:
---------- -------------------
Tenant shall not record this Lease or any memorandum of this Lease. Any
such recordation shall be deemed to be an event of default under this Lease.
24
LEASE AGREEMENT
SECTION 29. RELOCATION OF PREMISES:
---------- ----------------------
In the event Landlord requires the Premises for use in conjunction with
another suite or other reasons connected with the Building leasing program,
Landlord shall have the right, after first giving sixty (60) days' written
notice to Tenant to move the Tenant to another space of similar size within the
Building. Tenant's failure to cooperate in such a relocation shall constitute a
material breach of this Lease giving the Landlord the right to terminate
Tenant's possession of the Premises pursuant to Section 21, and to recover the
amounts stated in Section 19.4 for holding over without the Landlord's consent.
Such move shall be at the sole cost and expense of Landlord, including but not
limited to all costs and expenses related to improving the space with leasehold
improvements equal to those then in the Premises, moving the furniture, office
equipment and other contents of the Premises to the new space, reinstating
telecommunications equipment, printing of new stationery, business cards and
other printed matter bearing the address of the Tenant and such other expenses
as Tenant may reasonably incur, it being the intention of the parties that
Tenant incur no cost or expense as a result of the move. After such move, all
terms and conditions of this Lease shall remain in full force and effect, save
and excepting that the Premises shall be the new space. Notwithstanding anything
herein to the contrary, the provisions of this Section 29 shall only apply to
floors which are multi-tenant floors partially occupied by Tenant; provided,
however, that Landlord shall have no right to relocate Tenant from the first
floor even though the first floor is a multi-tenant floor.
SECTION 30. ADJUSTMENT OF COMMENCEMENT AND EXPIRATION DATES:
---------- -----------------------------------------------
30.1 Commencement Date: The term of this Lease shall commence on a
-----------------
date (herein the "Commencement Date") which shall be the date specified in the
Basic Lease Information unless:
30.1.1 Landlord notifies Tenant of an earlier or later Commencement
Date at least thirty (30) days in advance; or
30.1.2 Tenant actually occupies the Premises earlier than the date
specified in the Basic Lease Information or any notice given pursuant to Section
30.1.1, in which event the occupancy date shall be the Commencement Date.
30.2 Tenant Obligations: If the Premises are not ready for Tenant's
------------------
occupancy by the Commencement Date (as specified in the Basic Lease Information)
due to the fault of the Landlord or due to the occurrence of an event of force
majeure, the Base Rent and Additional Rent payable hereunder shall be abated for
the time period of such delay. Tenant shall be considered to have caused any
delay in the preparation of the Premises resulting from Xxxxxx's failure to sign
this Lease on or before the Construction Information Submittal Date specified in
the Basic Lease Information or, in the alternative, to provide Landlord by such
date a written agreement in form and content satisfactory to Landlord
guarantying Tenant will pay Landlord for any and all costs incurred in
connection with the work done prior to execution of this Lease to prepare the
Premises for Tenant. If the Tenant Improvements are not completed on the
Commencement Date due to (i) the failure of Tenant to fulfill any obligation
pursuant to the terms of this Lease or any exhibit hereto, including without
limitation Tenant's failure to comply with the Construction Information
Submittal and Construction Approval Dates specified in the Basic Lease
Information; or (ii) any changes in the Tenant Improvements requested by Tenant,
then Tenant shall not be entitled to any abatement of Rent due to such delay.
30.3 Tenant Termination Rights: Intentionally deleted.
-------------------------
25
LEASE AGREEMENT
30.4 Expiration Date: In the event the Commencement Date is adjusted
---------------
to a date other than as specified in the Basic Lease Information, the Expiration
Date shall be extended as necessary so that the Lease Term will contain the
number of full calendar months indicated in the Rent Schedule of the Basic Lease
Information and so that the Expiration Date will fall on the last day of a
calendar month.
30.5 Early Occupancy: Intentionally deleted.
---------------
SECTION 31. MISCELLANEOUS:
---------- -------------
31.1 Merger: All understandings and agreements heretofore had between
------
the parties are merged in this Lease and any other written agreement(s) made
concurrently herewith, which alone fully and completely express the agreement of
the parties and which are entered into after full investigation, neither party
relying upon any statement or representation not embodied in this Lease or any
other written agreement(s) made concurrently herewith.
31.2 Modifications: No agreement shall be effective to change, modify,
-------------
waive, release, discharge, terminate or effect an abandonment of this Lease, in
whole or in part, unless such agreement is in writing, refers expressly to this
Lease and is signed by the party against whom enforcement is sought. If Tenant
shall at any time request Landlord to sublet the Premises for Tenant's account,
Landlord or its agent is authorized to receive the keys for such purposes
without releasing Tenant from any of its obligations under this Lease, and
Tenant hereby releases Landlord of any liability for loss or damage to any of
the Tenant's Property in connection with such subletting.
31.3 Successors and Assigns: Except as otherwise expressly provided
----------------------
in this Lease, the obligations of this Lease shall bind and benefit the
successors and assigns of the parties hereto with the same effect as if
mentioned in each instance where a party is named or referred to; provided,
however, that: (i) no violation of the provisions of Section 9 shall operate to
vest any rights in any successor or assignee of Tenant; and (ii) the provisions
of this Section shall not be construed as modifying the provisions of Sections 9
or 20.
31.4 Nonrecourse Lease: Tenant shall look only to Landlord's estate
-----------------
and property in the Land and the Building (or the proceeds thereof) for the
satisfaction of Xxxxxx's remedies for the collection of a judgment (or other
judicial process) requiring the payment of money by Landlord in the event of any
default by Landlord hereunder, and no other property or assets of Landlord or
its partners or principals, disclosed or undisclosed, shall be subject to levy,
execution or other enforcement procedure for the satisfaction of Xxxxxx's
remedies under or with respect to this Lease, the relationship of Landlord and
Tenant hereunder or Xxxxxx's use or occupancy of the Premises.
31.5 Force Majeure: The obligations of Tenant hereunder shall be in no
-------------
way affected, impaired or excused, nor shall Landlord have any liability
whatsoever to Tenant, because:
31.5.1 Landlord is unable to fulfill, or is delayed in fulfilling,
any of its obligations under this Lease by reason of strike, other labor
trouble, governmental pre-emption of priorities or other controls in connection
with a national or other public emergency or shortages of fuel, supplies or
labor resulting therefrom, or any other cause, whether similar or dissimilar,
beyond Landlord's reasonable control; or
31.5.2 of any failure or defect in the supply, quantity or character
of electricity, water or other utilities furnished to
26
LEASE AGREEMENT
the Premises, by reason of any requirement, act or omission of the public
utility or others serving the Building with electric energy, steam, oil, gas or
water, or for any other reason whether similar or dissimilar, beyond Landlord's
reasonable control.
31.6 Definitions: For the purpose of this Lease, the following terms
-----------
have the meanings indicated:
31.6.1 The term "mortgage" shall include a mortgage and/or deed of
trust, and the term "holder of a mortgage" or "mortgagee" or words of similar
import shall include a mortgagee of a mortgage or a beneficiary of a deed of
trust.
31.6.2 The term "laws and requirements of any public authorities"
and words of similar import shall mean laws and ordinances of any or all of the
federal, state, city, town, county, borough and village governments and rules,
regulations, orders and directives of any and all departments, subdivisions,
bureaus, agencies or offices thereof, and of any other governmental, public or
quasi-public authorities having jurisdiction over the Building and/or the
Premises, and the direction of any public officer pursuant to law, whether now
or hereafter in force.
31.6.3 The term "requirements of insurance bodies" and words of
similar import shall mean rules, regulations, orders and other requirements of
the Insurance Services Office and/or any other similar body performing the same
or similar functions and having jurisdiction or cognizance over the Building
and/or the Premises, whether now or hereafter in force.
31.6.4 The term "Tenant" shall mean the Tenant herein named or any
assignee or other successor in interest (immediate or remote) of the Tenant
herein named, which at the time in question is the owner of the Tenant's estate
and interest granted by this Lease; but the foregoing provisions of this
subsection shall not be construed to permit any assignment of this Lease or to
relieve the Tenant herein named or any assignee or other successor in interest
(whether immediate or remote) of the Tenant herein named from the full and
prompt payment, performance and observance of the covenants, obligations and
conditions to be paid, performed and observed by Tenant under this Lease.
31.6.5 The term "Land" shall mean the real property lot or parcel
upon which the Building is located including without limitation parking areas,
landscaped areas, walkways, driveways, sidewalks and curbs.
31.6.6 The term "Landlord" shall mean only the owner at the time in
question of the Building or of a lease of the Building, so that in the event of
any transfer or transfers of title to the Building or of Landlord's interest in
a lease of the Building, the transferror shall be and hereby is relieved and
freed of all obligations of Landlord under this Lease accruing after such
transfer, and it shall be deemed without further agreement that such transferee
has assumed and agreed to perform and observe all obligations of Landlord herein
during the period it is the holder of Landlord's interest under this Lease.
31.6.7 The term "herein," "hereof" and "hereunder," and words of
similar import, shall be construed to refer to this Lease as a whole, and not to
any particular Section, unless expressly so stated.
31.6.8 The term "and/or" when applied to two or more matters or
things shall be construed to apply to any one or more or all thereof as the
circumstances warrant at the time in question.
27
LEASE AGREEMENT
31.6.9 The term "person" shall mean natural person or persons, a
partnership, a corporation and any other form of business or legal association
or entity.
31.7 Effect of Expiration: Upon the expiration or other termination
--------------------
of this Lease, neither party shall have any further obligation or liability to
the other except as otherwise expressly provided in this Lease and except for
such obligations as by their nature or under the circumstances can only be, or
by the provisions of this Lease, may be, performed after such expiration or
other termination; and, in any event, unless otherwise expressly provided in
this Lease, any liability for a payment (including, without limitation,
Additional Rent, herein) which shall have accrued to or with respect to any
period ending at the time of expiration or other termination of this Lease shall
survive the expiration or other termination of this Lease.
31.8 Modifications for Superior Mortgagee: If any Superior Mortgagee
------------------------------------
shall require any modification(s) of this Lease, Tenant upon ten (10) days'
prior written notice of Landlord's request, shall execute and deliver to
Landlord such instruments effecting such modification(s) as Landlord shall
reasonably require, provided that such modification(s) do not adversely affect
in any material respect any of Tenant's rights under this Lease.
31.9 Excavation: If an excavation shall be made upon land adjacent to
----------
or under the Building, or shall be authorized to be made, Tenant shall afford to
the person causing or authorized to cause such excavation, license to enter the
Premises for the purpose of performing such work as said person shall deem
necessary or desirable to preserve and protect the Building from injury or
damage and to support the same by proper foundations, and without reducing or
otherwise affecting Tenant's obligations under this Lease.
31.10 Union Contracts: Xxxxxx agrees that the exercise of its rights
---------------
pursuant to the provision of Section 12 or of any other provisions of this Lease
or the Exhibits hereto shall not be done in a manner which would violate
Landlord's union contracts affecting the Land and/or Building, nor create any
lawful work stoppage, picketing, labor disruption or dispute or any interference
with the business of Landlord or any tenant or occupant of the Building.
31.11 Prorations: Any apportionments or prorations of Base Rent or
----------
Additional Rent to be made under this Lease shall be computed on the basis of a
three hundred sixty (360) day year, with twelve (12) months of thirty (30) days
each.
31.12 Governing Law: Regardless of the place of execution or
-------------
performance, this Lease shall be governed by and construed in accordance with
the laws of the State of Colorado. If any provision of this Lease or the
application thereof to any person or circumstance shall, for any reason and to
any extent, be invalid or unenforceable, the remainder of this Lease and the
application of that provision to other persons or circumstances shall not be
affected but rather shall be enforced to the extent permitted by law. The table
of contents, captions, heading and titles in this Lease are solely for
convenience or reference and shall not affect its interpretation. Each
covenant, agreement, obligation or other provision of this Lease on Tenant's
part to be performed, shall be deemed and construed as a separate and
independent covenant of Tenant, not dependent on any other provision of this
Lease. All terms and words used in this Lease, regardless of the number or
gender in which they are used, shall be deemed to include any other number and
any other gender as the context may require. Time is of the essence of this
Lease and all of its provisions.
28
LEASE AGREEMENT
31.13 Light Air and View: Any diminution or shutting off of light,
------------------
air or view by any structure which may be erected on lands adjacent to or near
the Building shall in no way affect this Lease or impose any liability on
Landlord.
31.14 Tenant Representations: If Tenant is a corporation, each person
----------------------
executing this Lease on behalf of Tenant does hereby covenant and warrant that:
31.14.1 Tenant is duly incorporated and validly existing under the
laws of its state of incorporation, and, if such corporation is existing under
the laws of a jurisdiction other than Colorado, qualified to transact business
in Colorado;
31.14.2 Tenant has full corporate right and authority to enter into
this Lease and to perform all Tenant's obligations hereunder; and
31.14.3 Each person (and both of the persons if more than one
signs) signing this Lease on behalf of the corporation is duly and validly
authorized to do so.
31.15 Defined Terms: Words capitalized other than as the first word of
-------------
a sentence are defined terms and have the meaning, throughout this Lease, given
to them when they are first used with an initial capital or when used in
quotation marks.
31.16 Counterparts: This Lease may be executed in one or more
------------
counterparts by separate signature, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument, binding
on all parties hereto, even though all parties are not signatories to the
original or to the same counterpart. Any counterpart of this Lease that has
attached to it separate signature pages, which together contain the signatures
of all parties, shall for all purposes be deemed a fully executed instrument,
and in making proof of this Lease, it shall not be necessary to produce or
account for more than one such counterpart.
31.17 Costs and Attorney Fees:
-----------------------
31.17.1 No Suit or Action Filed. Tenant agrees to pay Landlord for
-----------------------
all costs and expenses, including reasonable attorneys' fees, in any court
action brought by Landlord to recover any rent due and unpaid under the terms
hereof, or for the breach of any of the terms and conditions herein contained,
or to recover possession of the Premises, whether or not such court action or
actions shall proceed to judgment.
31.17.2 Arbitration or Mediation; Trial and Appeal. If any
------------------------------------------
arbitration, mediation, or other proceeding is brought in lieu of litigation, or
if legal action is instituted to enforce or interpret any of the terms of this
Lease or if legal action is instituted in a Bankruptcy Court for a United States
District Court to enforce or interpret any of the terms of this Lease, to seek
relief from an automatic stay, to obtain adequate protection, or to otherwise
assert the interest of Landlord in a bankruptcy proceeding, the party not
prevailing shall pay the prevailing party's costs and disbursements, the fees
and expenses of expert witnesses in determining reasonable attorney fees, and
such sums as the court may determine to be reasonable for the prevailing party's
attorney fees connected with the trial and any appeal and by petition for review
thereof.
31.17.3 Definitions. For purposes of this Lease, the term attorney
-----------
fees includes all charges of the prevailing party's attorneys and their staff
(including without limitation legal assistants, paralegals, word processing, and
other support personnel) and any postpetition fees in a bankruptcy court. For
29
LEASE AGREEMENT
purposes of this Lease, the term fees and expenses includes but is not limited
to long-distance telephone charges; expenses of facsimile transmission; expenses
for postage (including costs of registered or certified mail and return
receipts), express mail, or parcel delivery; mileage and all deposition charges,
including but not limited to court reporters' charges, appearance fees, and all
costs of transcription; costs incurred in searching records.
31.18 Effect of Failure to Consent: The parties acknowledge that the
----------------------------
obligation of good faith and fair dealing generally applies to this Lease
requiring each party to act reasonably except to the extent explicitly and
specifically provided otherwise in this Lease. If either party unreasonably
withholds or conditions a requested consent or demands payment of an
unreasonable sum, the other party shall not be entitled to any damages for the
unreasonableness, it being intended that the sole remedy shall be to proceed as
if the unreasonable party had responded reasonably.
IN WITNESS WHEREOF, Landlord and Xxxxxx have duly executed this Lease
Agreement as of the date and year first above written.
LANDLORD: TENANT:
KESEF, LLC COLORADO BUSINESS
BANKSHARES, INC.
By: /s/ Xxxx Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
----------------------- -----------------------
Xxxx Xxxxxxxx, Manager
Xxxxxxx X. Xxxxxx
-----------------------
(Print Name)
EVP/CFO
-----------------------
(Title)
30
LEASE AGREEMENT
EXHIBIT A
---------
LEASE AGREEMENT
---------------
Legal Description for Land
--------------------------
Lots 12, 13, 14, 15 and 16, Block 128, East Denver, City and County of
Denver, State of Colorado.
EXHIBIT A, 29 - Legal Description
---------
EXHIBIT B
---------
LEASE AGREEMENT
---------------
Floor Plan for the Building
---------------------------
EXHIBIT B, 1 - Floor Plan of Building
---------
FLOOR PLAN FOR THE BUILDING 9TH FLOOR
FLOOR PLAN FOR THE BUILDING 8TH FLOOR
FLOOR PLAN FOR THE BUILDING 4TH - 7TH FLOOR
FLOOR PLAN FOR THE BUILDING 3RD FLOOR
FLOOR PLAN FOR THE BUILDING 2ND FLOOR
FLOOR PLAN FOR THE BUILDING FIRST FLOOR
FLOOR PLAN FOR THE BUILDING BASEMENT
EXHIBIT C
---------
LEASE AGREEMENT
---------------
Work Agreement
--------------
Section 1. TENANT IMPROVEMENTS PROVIDED BY LANDLORD. Landlord agrees to
--------- ----------------------------------------
provide the core and shell improvements to the Premises as set forth on the
drawings prepared by RNL Design designated as 2-7838.10 and 7838.08 (the
"Approved Plans"), at the Landlord's sole cost and expense. The Landlord shall
also contract with Sprung Construction to perform all of the tenant finish set
forth on the said drawings and the Tenant shall reimburse the Landlord for the
cost of the tenant finish, to the extent that the tenant finish exceeds the
allowance set forth in Section 4.1 below, within fifteen (15) days of receipt of
a written invoice from the Landlord.
Section 2. ADDITIONAL TENANT IMPROVEMENTS PROVIDED BY LANDLORD.
--------- ---------------------------------------------------
Intentionally deleted.
Section 3. ADDITIONAL TENANT IMPROVEMENTS AT TENANT'S EXPENSE.
--------- --------------------------------------------------
Intentionally deleted.
Section 4. TENANT IMPROVEMENT ALLOWANCES PROVIDED BY LANDLORD.
--------- --------------------------------------------------
4.1 Allowances: Xxxxxxxx agrees to provide the following dollar
----------
allowances for Non-Building-Standard Tenant Improvements in the Premises at
Landlord's sole cost and expense: $15.00 per square foot to be utilized by
Tenant in Landlord's reasonable discretion throughout the Premises being
remodeled.
4.2 Application: Each dollar allowance may be applied only to the
-----------
specified Tenant Improvement item. All costs incurred by Landlord relating to
each item shall be deducted from the allowance.
Section 5. DESIGN OF TENANT IMPROVEMENTS.
--------- -----------------------------
5.1 Intentionally deleted.
5.2 Intentionally deleted.
5.3 Rentable Area Definition. The amount of rentable area shall be 112%
------------------------
of the usable area located on a single-tenant floor and 120% of the usable area
located on a multi-tenant floor. Usable area on multi-tenant floors shall be
computed by measuring to the finished surface of the office-side of corridors
and other permanent walls, to the center of partitions that separate the
Premises from adjoining office suites, and to the inside finished surfaces of
the dominant portion of the permanent outer building walls. The usable area of
a multi-tenant floor shall be equal to the sum of all usable areas on that
floor. Usable area on single-tenant floors shall be computed by measuring to
the inside finished surfaces of the dominant portion of the permanent outer
building walls, excluding any major vertical penetrations of the floor such as
elevators. No deductions shall be made for columns and projections necessary to
the Building when calculating the usable area on any floor of the Building. The
precise amount of the rentable area in the Premises indicated in the approved
CDP
EXHIBIT C, 1 - Work Agreement
---------
shall be controlling in the event of any variance from the approximate rentable
area specified in the Basic Lease Information. Base Rent, Tenant's Percentage,
the number of parking spaces, if any, available to Tenant and any similar item
based upon the size of the Premises shall be adjusted to reflect the precise
rentable area in the Premises determined by the approved CDP. If Landlord gives
Tenant notice of an adjustment in the size of the Premises by means of the CDP
or otherwise and adjustment of any other terms of the Lease based upon the
changed size of the Premises, it shall be deemed a request for an estoppel
statement from Tenant confirming the adjustments pursuant to Section 27. Unless
Tenant gives notice to Landlord of an objection to the adjustments within
fifteen (15) days of Landlord's notice, it shall be final and binding on Tenant
as an amendment of this Lease. Tenant reserves the right to recalculate the
percentages set forth in the first sentence of this paragraph but in no event
shall the percentages be increased.
5.4 Tenant Responsibilities: Tenant shall be responsible for delays and
-----------------------
additional costs, including without limitation design fees, caused by: (i) any
changes made by Tenant to the Approved Plans other than corrections and
deletions of the type described in Section 5.2; or (ii) by delays in delivery of
non-building-standard materials requiring long lead times. Tenant shall pay,
prior to taking occupancy of the Premises, all of Landlord's design fees arising
out of the inclusion of non-building-standard materials in the Premises.
Section 6. CONSTRUCTION.
--------- ------------
Landlord shall complete the construction of the Tenant Improvements as soon
as reasonably possible. Landlord's contractor shall complete the Tenant
Improvements in accordance with the Approved Plans.
Section 7. FIELD CHANGE ORDERS.
--------- -------------------
If Tenant shall request any change in the Tenant Approved Plans, Tenant
shall request such change in writing to Landlord, and such request shall be
accompanied by all information necessary to prepare plans and specifications for
such change. After receiving this information, Landlord shall cause its office
planner to prepare such plans and specifications and a proposed field change
order ("FCO") as soon as reasonably possible thereafter. Landlord shall not be
obligated to proceed with any work which would be affected by a proposed FCO
until it is effective or Tenant withdraws the FCO request. Tenant shall be
responsible for any and all delays in construction and occupancy caused by
Xxxxxx's FCO requests. The proposed FCO shall set forth the estimated cost of
the changes. The proposed FCO shall be effective only when signed by both
Landlord and Tenant, and Xxxxxx has deposited the estimated cost of the changes
with Landlord. Landlord shall hold this payment as an additional security
deposit. Upon the acceptance of the Premises by Xxxxxx, this additional
security deposit shall be applied to pay the cost of the work. If the actual
cost of the change order is more or less than this security deposit then the
excess or deficiency shall be refunded or paid at the same time, as the case may
be. Even if Xxxxxx fails to approve the proposed FCO, Tenant shall be
responsible for the cost of preparing any plans and specifications for the
proposed FCO. The actual cost, including design and administrative fees, of any
FCO shall be paid by Tenant on or before the date Tenant first occupies the
Premises unless stated otherwise in the FCO.
Section 8. IMPROVEMENTS CONSTRUCTED BY TENANT.
--------- ----------------------------------
EXHIBIT C, 2 - Work Agreement
-------
If any work is to be performed in connection with Tenant Improvements on
the Premises by Tenant or Tenant's contractor:
8.1 Landlord's Approval: Such work shall not proceed until Landlord's
-------------------
written approval of each of the following items: (a) Tenant's contractor; (b)
public liability and property damage insurance carried by Tenant or its
contractor; and (c) schematic plans and specifications for such work. The
detailed construction plans and specifications shall be prepared by Xxxxxxxx's
office planner at Xxxxxx's expense based upon the schematic plans and
specifications. All such work shall be done in strict conformity with such
final plans and specifications subject to field change orders prepared and
approved in the manner specified in Section 3.1 above. As-built plans shall be
prepared by Xxxxxxxx's office planner at Tenant's expense after the work is
fully completed and a copy retained by Landlord for its use.
8.2 Permits: All work shall be done in conformity with a valid building
-------
permit (obtained at Tenant's expense) when required, a copy of which shall be
furnished to Landlord before such work is commenced, and in any case, all such
work shall be performed in accordance with all applicable governmental
regulations at Tenant's sole expense. Notwithstanding any failure by Landlord
to object to any such work, Landlord shall have no responsibility for Tenant's
failure to meet all applicable regulations.
8.3 Coordination: All work by Xxxxxx or Tenant's contractor shall be
------------
scheduled through Landlord. Tenant or Xxxxxx's contractor shall arrange for
necessary utility, hoisting and elevator service with Xxxxxxxx's contractor and
shall pay such reasonable charges for such services as may be charged by
Xxxxxxxx's contractor.
8.4 Manner of Entry: Tenant's entry to the Premises for any purpose,
---------------
including without limitation, inspection or performance of Tenant construction
by Tenant's agents, prior to the Lease Commencement Date as specified in the
Basic Lease Information shall be at such times as are approved by Landlord and
subject to all the terms and conditions of the lease except the payment of Rent.
Tenant's entry shall mean entry by Tenant, its officers, contractors, licensees,
agents, servants, employees, guests, invitees, or visitors.
8.5 Faulty Work: Tenant shall promptly reimburse Landlord upon demand for
-----------
any extra expense incurred by the Landlord by reason of faulty work done by
Tenant or its contractors or by reason of any delays caused by such work, or by
reason of inadequate cleanup.
EXHIBIT C, 3 - Work Agreement
---------
EXHIBIT D
---------
LEASE AGREEMENT
---------------
Schematic Space Plan for the Premises
-------------------------------------
EXHIBIT D, 1 - Schematic Space Plan for Premises
---------
SCHEMATIC SPACE PLAN FOR THE PREMISES
FIRST FLOOR PLAN
SCHEMATIC SPACE PLAN FOR THE PREMISES
SECOND FLOOR PLAN
SCHEMATIC SPACE PLAN FOR THE PREMISES
WOMEN'S BANK
FLOOR FOUR
SCHEMATIC SPACE PLAN FOR THE PREMISES
WOMEN'S BANK
FLOOR SIX
SCHEMATIC SPACE PLAN FOR THE PREMISES
WOMEN'S BANK
FLOOR EIGHT
EXHIBIT E
---------
LEASE AGREEMENT
---------------
Rules and Regulations
---------------------
1. The rights of each tenant in the entrances, corridors and
elevators servicing the Building are limited to ingress to and egress from such
tenant's Premises for the tenant and its employees, licensees and invitees, and
no tenant shall use, or permit the use of, the entrances, corridors or elevators
for any other purpose. No tenant shall invite to the tenant's Premises, or
permit the visit of, persons in such numbers or under such conditions as to
unreasonably interfere with the use and enjoyment of any of the plazas,
entrances, corridors, elevators and other facilities of the Building by any
other tenants. No tenant shall encumber or obstruct, or permit the encumbrance
or obstruction of any of the sidewalks, plazas, entrances, corridors, elevators,
fire exits or stairways of the Building. Landlord reserves the right to control
and operate the public portions of the Building and the public facilities as
well as facilities furnished for the common use of the tenants, in such manner
as it in its reasonable judgment deems best for the benefit of the tenants
generally.
2. Admission to the Building in certain areas and during certain
hours may be restricted by Landlord by means of access devices such as keys,
entry cards, combination codes and the like. Landlord may require all persons
admitted to or leaving the Building outside of business hours on business days
to provide appropriate identification, use a designated access device and to
comply with all other Building security requirements. Tenant shall be
responsible for all persons to whom it issues an access device or discloses an
access code and shall be liable to Landlord for all acts or omissions of such
persons. Any person whose presence in the Building at any time shall, in the
reasonable judgment of Landlord, be prejudicial to the safety, character or
reputation of the Building or of its tenants may be denied access to the
Building or may be ejected therefrom. During any invasion, riot, public
excitement or other commotion, Landlord may prevent all access to the Building
by closing the doors or otherwise for the safety of the tenants and protection
of property in the Building. Each tenant shall pay Landlord a refundable
deposit in an amount reasonably determined by Landlord from time to time for
each access device issued to a tenant.
3. Smoking is prohibited at all times in all areas of the Building,
including, but not limited to, offices, restrooms, corridors, stairwells,
lobbies and elevators.
4. No tenant shall obtain or accept for use in its Premises ice,
food, beverages, cleaning or other similar services from any persons reasonably
prohibited in writing from furnishing such services. Such services shall be
furnished only at such hours, and under such reasonable regulations, as may be
fixed by Landlord from time to time.
5. The cost of repairing any damage to the public portions of the
Building, the common areas or the public facilities or to any facilities used in
common with other tenants, caused by a tenant or its employees, agents,
contractors, licensees or invitees, shall be paid by such tenant.
6. No awnings or other projections shall be attached to the outside
walls of the Building. No curtains, blinds,
EXHIBIT E, 1 - Rules and Regulations
---------
shades or screens, if any, which are different from the standards adopted by
Landlord for the Building shall be attached to or hung in or used in connection
with any exterior window or door of the Premises of any tenant without the prior
written consent of Landlord. All tenants with Premises visible from one of the
lobbies, or any other public portion of the Building, shall furnish and maintain
the Premises in a first-class manner, utilizing furnishings and other
decorations commensurate in quality and style with the furnishings and decor in
the public portions of the Building.
7. No lettering, sign, advertisement, notice or object shall be
displayed in or on the exterior windows or doors, or on the outside of any
tenant's Premises, or at any point inside any tenant's Premises where the same
might be visible outside of such Premises, without the prior written consent of
Landlord which consent may be withheld in Landlord's sole and unfettered
discretion. In the event of the violation of the foregoing by any tenant,
Landlord may remove the same without any liability, and may charge the expense
incurred in such removal to the tenant violating this rule. Interior signs,
elevator cab designations, and lettering on doors, if and when approved by
Landlord, shall be inscribed, painted or affixed for each tenant by Landlord at
the expense of such tenant, and shall be of a size, color and style acceptable
to Landlord.
8. The windows that reflect or admit light and air into the halls,
passageways or other public places in the Building shall not be covered or
obstructed by any tenant, nor shall any bottles, parcels or other articles be
placed on the window xxxxx.
9. No showcases or other articles shall be put in front of or affixed
to any part of the exterior of the Building, nor placed in the halls, corridors
or vestibules.
10. No bicycles, vehicles, animals, fish or birds of any kind shall
be brought into or kept in or about the Premises of any tenant or the Building
except in areas designated by Landlord.
11. No noise, including, but not limited to, music or the playing of
musical instruments, recordings, radio or television, which, in the judgment of
Landlord, might disturb other tenants in the Building, shall be made or
permitted by any tenant. Nothing shall be done or permitted in the Premises of
any tenant which would impair or interfere with the use or enjoyment by any
other tenant of any other space in the Building.
12. No tenant, nor any tenant's contractors, employees, agents,
visitors or licensees, shall at any time bring into or keep upon the Premises or
the Building any hazardous, inflammable, combustible, explosive or otherwise
dangerous fluid, chemical or substance, except any fluids or substances used in
the ordinary course of Tenant's business as part of a use permitted under the
Lease. Landlord shall be notified of any threatened or actual violation of
environmental laws or other Legal Requirements as soon as possible after any
tenant becomes aware of the situation.
13. Additional locks or bolts of any kind which shall not be operable
by the Grand Master Key for the Building shall not be placed upon any of the
doors or windows by any tenant, nor shall any changes be made in locks or
mechanisms thereof which shall make such locks inoperable by said Grand Master
Key; provided, however, that the Tenant shall have the right to change the locks
so that they are inoperable by the Grand Master Key for areas where money is
stored. Additional keys for a tenant's
EXHIBIT E, 2 - Rules and Regulations
---------
Premises and restrooms shall be procured only from the Landlord who may make a
reasonable charge therefor. Each tenant shall, upon the termination of its
tenancy, turn over to Landlord all keys of stores, offices and toilet rooms,
either furnished to, or otherwise procured by, such tenant, and in the event of
the loss of any keys furnished by Landlord, such tenant shall pay to Landlord
the cost thereof.
14. All removals, or the carrying in or out of any safes, freight,
furniture, packages, boxes, crates or any other object or matter of any
description must take place during such hours and in such elevators, and in such
manner as Landlord or its agent may determine from time to time. The persons
employed to move furnishings, fixtures and equipment in and out of the Building
shall be reasonably acceptable to Landlord and, if so required by law, shall
hold a Master Rigger's or comparable license. Landlord shall have the right to
require an additional security deposit from Tenant as a condition of approving a
particular moving company for such purposes. Tenant must make arrangements in
advance with Landlord for moving large quantities of furniture and equipment
into or out of the Building. All labor and engineering costs incurred by
Landlord in connection with any moving specified in this rule, including a
reasonable charge for overhead and profit, shall be paid by Tenant to Landlord,
on demand.
15. No tenant shall occupy or permit any portion of its Premises to
be occupied as an office for secretarial or word processing services to third
parties without the prior written consent of Landlord which consent may be
withheld in the sole and unfettered discretion of Landlord. No tenant shall use
its Premises or any part thereof to be used, for manufacturing or the sale at
retail or auction of merchandise, goods or property of any kind or for the
possession, storage, manufacture, or sale of liquor, narcotics, dope, tobacco in
any form, or as a xxxxxx, beauty or manicure shop, or as a school.
16. Landlord shall have the right to prohibit any advertising or
identifying sign by any tenant which, in good faith, Xxxxxxxx believes will
impair the reputation of the Building or its desirability as a building for
others, and upon written notice from Landlord, such tenant shall refrain from
and discontinue such advertising or identifying sign.
17. Landlord shall have the right to prescribe the weight and
position of safes and other objects of excessive weight, and no safe or other
object whose weight exceeds the lawful load for the area upon which it would
stand shall be brought into or kept upon any tenant's Premises. If, in the
reasonable judgment of Landlord, it is necessary to distribute the concentrated
weight of any heavy object, the work involved in such distribution shall be done
at the expense of the tenant and in such manner as Landlord shall determine.
18. No machinery or mechanical equipment other than ordinary portable
business machines may be installed or operated in any tenant's Premises without
Landlord's prior written consent which consent shall not be unreasonably
withheld, conditioned or delayed, and in no case (even where the same are of a
type so excepted or as so consented to by Landlord) shall any machines or
mechanical equipment be so placed or operated as to disturb other tenants, but
machines and mechanical equipment which may be permitted to be installed and
used in tenant's Premises shall be so equipped, installed and maintained by such
tenant as to prevent any disturbing noise, vibration or electrical or other
interference from being transmitted from such Premises to any other area of the
Building.
EXHIBIT E, 3 - Rules and Regulations
---------
19. Landlord, its contractors, and their respective employees, shall
have the right to use, without charge therefor, all light, power and water in
the Premises of any tenant while cleaning or making repairs or alterations in
the Premises of such tenant.
20. No Premises of any tenant shall be used for lodging or sleeping
or for any immoral or illegal purpose.
21. The requirements of tenants will be attended to only upon
application at the office of the Building. Employees of Landlord shall not
perform any work or do anything outside of their regular duties, unless under
special instructions from Landlord.
22. Canvassing, soliciting and peddling in the Building are
prohibited and each tenant shall cooperate to prevent the same.
23. No tenant shall cause or permit any unusual or objectionable
odors to emanate from its Premises which would annoy other tenants or create a
public or private nuisance. No cooking shall be done in the Premises of any
tenant except as is expressly permitted in such tenant's Lease, except that
Tenant may use microwave ovens for non-commercial microwave cooking of food to
be consumed on the premises by the tenant's personnel.
24. Nothing shall be done or permitted in any tenant's Premises, and
nothing shall be brought into or kept in any tenant's Premises, which would
impair or interfere with any of the Building's services or the proper and
economic heating, cleaning or other servicing of the Building or the Premises,
or the use or enjoyment by any other tenant of any other Premises, nor shall
there be installed by any tenant any ventilating, air-conditioning, electrical
or other equipment of any kind which, in the reasonable judgment of Landlord,
might cause any such impairment or interference.
25. No acids, vapors or other materials shall be discharged or
permitted to be discharged into the waste lines, vents or flues of the Building
which may damage them. The water and wash closets and other plumbing fixtures
in or serving any tenant's Premises shall not be used for any purpose other than
the purposes for which they were designed or constructed, and no sweepings,
rubbish, rags, acids or other foreign substances shall be deposited therein.
All damages resulting from any misuse of the fixtures shall be borne by the
tenants who, or whose servants, employees, agents, visitors or licensees shall
have caused the same.
26. All entrance doors in each tenant's Premises shall be left locked
and all windows shall be left closed by the tenant when the tenant's Premises
are not in use. Entrance doors shall not be propped open at any time. Each
tenant, before closing and leaving its Premises at any time, shall turn out all
lights.
27. Hand trucks not equipped with rubber tires and side guards shall
not be used within the Building.
28. The coverings for all windows in each tenant's Premises above the
ground floor shall be lowered and closed as reasonably required because of the
position of the sun, during the operation of the Building's air-conditioning
system to cool or ventilate the tenant's Premises.
29. Landlord reserves the right to rescind, alter or waive any rule
or regulation at any time prescribed for the Building when, in its reasonable
judgment, it deems it necessary,
EXHIBIT E, 4 - Rules and Regulations
---------
desirable or proper for its best interest and for the best interests of the
tenants generally, and no alteration or waiver of any rule or regulation in
favor of one tenant shall operate as an alteration or waiver in favor of any
other tenant. Landlord shall not be responsible to any tenant for the
nonobservance or violation by any other tenant of any of the rules and
regulations at any time prescribed for the Building.
EXHIBIT E, 5 - Rules and Regulations
---------
EXHIBIT F
---------
LEASE AGREEMENT
---------------
Guaranty
--------
INTENTIONALLY DELETED.
EXHIBIT F, 1 - Guaranty
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EXHIBIT G
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RIDER TO LEASE
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1. Premises. The Premises leased by the Tenant shall be all of the 2nd, 8th
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and 9th floors, and that portion of the 1st floor currently leased by the Tenant
from the Landlord as set forth on Exhibit B (the "Permanent Premises"). The
parties recognize and acknowledge that a portion of the 8th floor known as the
"Computer Room" will be delivered to the Tenant on May 1, 1998 and that the
Tenant currently has possession of the 1st and 2nd floor space. Until such time
as the 8th and 9th floors have been completely remodeled and delivered to the
Tenant, the Tenant shall lease the space it currently occupies on the 4th and
6th floors (the "Interim Space"). On or before 30 days after the Landlord
delivers possession of the 8th and 9th floors (the "Moving Period"), the Tenant
shall surrender the said Interim Space to Landlord. After delivery of the 8th
and 9th floors to Tenant, Landlord shall have the right to enter the Premises
during normal business hours to finish "punch list" items of construction and
such work shall not be deemed to be a breach of the Tenant's right to quiet
enjoyment of the Premises. After the 8th and 9th floors have been delivered to
the Tenant, the parties shall execute a document setting forth the date the 8th
and 9th floors were delivered to Tenant and the expiration date of this Lease.
2. Expiration Date. The commencement date shall be May 1, 1998. The
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expiration date shall be ten (10) years after the Landlord delivers all of the
8th and 9th floors to the Tenant in the condition required by this Lease.
3. Base Rent. The Base Rent for the Permanent Premises shall be as follows:
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First Floor: $18.50 per square foot
2nd, 8th & 9th Floors: $15.00 per square foot
Notwithstanding anything herein to the contrary, in the event that the 8th and
9th floors are delivered to the Tenant as provided in this Lease, but the
Landlord has not completed the repair and rehabilitation of one of the elevators
in the Building, rent for the 8th and 9th floors shall be $14.25 per square foot
until such time as one of the elevators in the Building has been completed.
Base Rent shall be adjusted on the first day of the fourth and seventh lease
years (the "Adjustment Date") to the fair market rent for the Premises, but in
no event shall the amount of rent be less than the amount which is paid by the
Tenant during the third lease year. The "fair market rent" shall be determined
as follows: At least 90 days prior to the Adjustment Date, but no earlier than
six months prior to the Adjustment Date, the Landlord shall deliver to the
Tenant a written notice of the fair market rent which needs to be paid. The
Tenant shall have thirty days from receipt of the Landlord's notice in which (i)
to hire at its sole expense a Colorado licensed real estate broker or MAI
appraiser to evaluate the Landlord's determination of fair market rent, and (ii)
if the Tenant disagrees with the Landlord's determination to deliver a written
notice to Landlord setting forth its opinion of the fair market rent together
with supporting documentation. If the Landlord does not agree with the Tenant's
determination, the Landlord shall have twenty (20) days in which to hire at its
sole expense a Colorado licensed real estate broker or MAI appraiser to
determine the fair market rent and deliver a copy of the same to Tenant. If the
two evaluations are within ten percent (10%) of each other, the fair market rent
shall be the average of the two evaluations. If the two evaluations differ by
more than ten percent (10%), the parties which prepared the respective reports
EXHIBIT G, 1 - Rider
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shall designate a third Colorado licensed real estate broker or MAI appraiser to
determine the fair market rent but in no event shall the fair market rent by
greater than the Landlord's consultant's evaluation or less than the Tenant's
consultant's evaluation. The third Colorado licensed real estate broker or MAI
appraiser shall prepare its report no later than ten (10) days prior to the
Adjustment Date, its determination of fair market rent shall be binding on the
parties, and its cost shall be shared equally by Landlord and Tenant. For
purposes of this paragraph, the term "lease year" shall mean the twelve (12)
month period commencing in the month that possession of the 8th and 9th floors
have been delivered to the Tenant.
Notwithstanding the provisions of the preceding paragraph, until such time as
all of the 8th and 9th floors are remodeled by Landlord and delivered to Tenant,
Tenant shall pay the following Base Rent: Computer Room on 8th floor: $15.00
per square foot; First Floor: $16.00 per square foot which amount shall be
increased to the amount set forth in the preceding paragraph ($18.00 per square
foot) upon the completion of the HVAC repairs and the balancing of the system;
and Second Floor: $13.50 per square foot which amount shall be increased to the
amount set forth in the preceding paragraph ($15.00 per square foot) upon the
completion of the repair and rehabilitation of one of the elevators in the
Building.
The Base Rent for the space occupied on the 4th and 6th floors shall be
$1,177.25 per month, provided, however, that no rent shall be due on this space
during the Moving Period.
4. Remodeling. The parties acknowledge that the Landlord is in the process
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of replacing and/or repairing the roof, HVAC, elevators, plumbing and electrical
system. Windows in the building will be replaced or repaired as necessary
subject to limitations imposed due to the building being designated as a
historic building. The Landlord will remodel the bathrooms on the first, 8th
and 9th floors, restore the historic bank lobby, and repair the recent water
damage from roof leakage. Remodeling of the bathroom on the first floor shall
commence upon the issuance of the necessary governmental permits and the
Landlord shall use its best efforts to complete the remodeling by December 31,
1998. The Landlord will remodel the balance of the 8th floor and all of the 9th
floor in accordance with plans approved by the Landlord and Tenant and the
Tenant shall be given a $15.00 per square foot tenant improvement allowance
which can be used for architectural and engineering costs and tenant finish for
the Premises being remodeled, with any excess cost being the responsibility of
the Tenant.
5. Lobby Area. In the event that during the term of this Lease the stairway
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in the main lobby area is relocated and additional space which is currently
common area becomes rentable space, the Tenant shall lease the space upon it
becoming available at the same rate per square foot as that then being paid for
the first floor space under this Lease. Landlord and Tenant shall continue to
share equally the cost of the security for the first floor common area;
provided, however, that the Tenant shall be liable for all of the security for
its Premises in the event that the lobby area is redone so that the Tenant has
its own exclusive entrance to its first floor space.
6. Subleased Space. The parties recognize and acknowledge that the Tenant
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currently subleases some 1st floor space from the Broker Restaurant. In the
event that the Broker Restaurant's Lease with the Landlord is either (i)
modified to delete any of the subleased space from the Broker Restaurant's
lease, or (ii) the Broker Restaurant's lease is terminated for any reason,
Landlord and Tenant agree that the subleased space
EXHIBIT G, 2 - Guaranty
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shall be leased by Landlord to Tenant upon the subleased space becoming
available at the same rate per square foot as that then being paid for the first
floor space under this Lease.
7. Expansion Option. As other complete floors in the Building become
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available and are renovated by the Landlord, the Tenant shall have the first
opportunity to lease space on the floors provided that the Tenant leases a
minimum of 3,500 contiguous square feet. In the event that the Tenant exercises
its expansion option, the Landlord shall give the Tenant a $15.00 per square
foot tenant improvement allowance which can be used for architectural and
engineering costs and tenant finish, with any excess cost being the
responsibility of the Tenant. The amount of Base Rent for the expansions space
shall be the amount which is agreed to by the parties in their sole and absolute
discretion and the term of the lease for the expansion space shall be
coterminous with the term of this Lease. Landlord shall provide Tenant written
notice of the expansion space being available and the amount of Base Rent which
Landlord is asking for the expansion space. If the parties do not enter into a
written lease amendment on or before thirty (30) days from the date Landlord
delivered notice to Tenant of the availability of the expansion space, the
Tenant shall have no further expansion option as to the particular space offered
and Landlord shall have the right to offer the said space to any party and lease
the said space for such amounts as the Landlord may determine in its sole and
absolute discretion.
8. Option to Renew. Provided that Tenant is not in default under this
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Lease, Tenant is hereby granted an option to renew this Lease for additional ten
(10) year term, under the same terms and conditions of this Lease excepting,
however, that the Base Rent during the renewal term shall be the fair market
rent which amount shall be no less than 110% of the amount of Base Rent paid in
year 10 of this Lease. The Base Rent during the renewal period shall be
adjusted on the first day of the fourteenth and seventeenth lease years (the
"Adjustment Date") to the fair market rent for the Premises, but in no event
shall the amount of rent be less than the amount which is paid by the Tenant
during the third lease year. The fair market rent shall be determined in
accordance with the provisions of paragraph 3 of this Exhibit G. The Lessee
shall exercise this option by delivering written notice to Lessor and Xxxxxx-
Xxxxxxxx Realty Company, 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000,
by registered or certified mail, return receipt requested, no later than
September 30, 1999, failing which this option to renew shall automatically
terminate.
9. First Opportunity to Purchase. In the event that the Landlord decides to
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sell the Building, the Landlord shall provide thirty (30) days advance written
notice to Tenant setting forth the asking price for the Building. The Tenant
shall have thirty (30) days from receipt of the said notice in which to advise
Landlord that it is interested in purchasing the Building and the parties shall
have thirty (30) days from the date of the Tenant's notice to Landlord in which
to negotiate in good faith and execute a contract acceptable to the parties in
their sole and absolute discretion.
EXHIBIT G, 3 - Rider
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