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EXHIBIT 10.23
SUBLEASE
THIS SUBLEASE (this "Sublease") is made as of the 11 day of May 1998 by
and between ECHO BAY MANAGEMENT CORP., a Delaware corporation ("Sublessor"), and
MPOWER SOLUTIONS, INC., a Delaware corporation ("Sublessee").
ARTICLE 1
GENERAL
1.1 Lease. As used herein, the term "Lease" shall mean that certain
Plaza Tower One Office Lease, dated April 21, 1995, as amended by the First
Amendment to Plaza Tower Office Lease, dated May 24, 1995, and the Second
Amendment to Plaza Tower Office Lease, dated December 15, 1995, by and between
Huntington Beach Company, a California corporation ("HBC"), and Sublessor. A
copy of the Lease is attached hereto as Exhibit A and is by this reference
incorporated herein and made a part hereof.
1.2 Landlord. Property Colorado OBJLW One Corporation, an Oregon
corporation (the "Landlord") is the current owner of the Building and is the
successor to all of the rights and obligations of HBC under the Lease.
1.3 Building Terms. As used herein, the terms Improved Area,
Building, Tower, Retail Area, and Parking Garage, shall have the meanings
ascribed to such terms in Paragraph 1 of the Lease.
1.4 Premises. As used herein, the term "Premises" shall mean 3,667
rentable square feet of space located on a portion of the 5th Floor of the Tower
as shown on the floor plan attached hereto as Exhibit B and by this reference
incorporated herein and made a part hereof.
1.5 Furnishings. As used herein, the term "Furnishings" shall mean
and include all of the furnishings currently located in the Premises which shall
consist of the items identified on Exhibit C attached hereto and by this
reference made a part hereof.
1.6 Sublease Term. As used herein, the term "Sublease Term" shall
mean the term of this Sublease, which shall commence as of June 1, 1998 (the
"Commencement Date") and shall expire on November 30, 1999 (the "Expiration
Date"), unless terminated sooner pursuant to any term or provision of this
Sublease.
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ARTICLE 2
DEMISE OF PREMISES
2.1 Demise of Premises. Under and subject to the provisions,
covenants, and agreements contained herein and in the Lease, Sublessor hereby
subleases to Sublessee, and Sublessee hereby subleases from Sublessor, the
Premises for the Sublease Term.
2.2 Demise of Furnishings. Under and subject to the provisions,
covenants, and agreements contained herein and in the Lease, Sublessor hereby
leases to Sublessee, and Sublessee hereby leases from Sublessor, the Furnishings
for the Sublease Term. The Furnishings are leased to Sublessee in their "AS IS"
condition without any representations or warranties by Sublessor of any kind or
nature whatsoever, including, without limitation, any warranties as to the
physical condition or state of repair of the Furnishings or their fitness for
any particular purpose. Sublessee shall keep, maintain and repair all of the
Furnishings in good and sightly condition during the Sublease Term and shall
surrender the Furnishings to Sublessor upon the expiration or earlier
termination of the Sublease Term in the same condition as the Furnishings were
in on the Commencement Date (including, if necessary, by repairing any damage
thereto), ordinary wear and tear excepted.
2.3 Landlord's Approval. Both Sublessor and Sublessee acknowledge
that this Sublease is subject to the Landlord's approval as required by the
terms of the Lease. From and after the date of this Sublease, both parties shall
use reasonable efforts to obtain the Landlord's approval of this Sublease,
including, without limitation, supplying any information or documents which the
Landlord may reasonably request in connection therewith.
ARTICLE 3
BASIC RENT AND OTHER AMOUNTS
3.1 Rental Covenant. Sublessee covenants and agrees to pay the Rent,
as hereinafter defined, to Sublessor during the Sublease Term, without notice
and without offset, deduction, or abatement.
3.2 Base Rent. As used herein, the term "Base Rent" shall mean
$121,011.00 during the Sublease Term payable in monthly installments of
$6,722.83 each, which amount is based upon an annual rental rate equal to the
product of $22.00 per rentable square foot in the Premises multiplied by 3,667
rentable square feet.
3.3 Operating Costs. Pursuant to the terms of the Lease, Sublessor
is obligated to pay a share of the "Operating Costs" for the Building and the
Improved Area. Sublessor and Sublessee acknowledge and agree that the Base Rent
is intended to be a gross full-service rental rate for the Premises and that
consequently Sublessee shall not be obligated to pay to Sublessor any Operating
Costs under this Sublease; provided, however, that Sublessee shall be obligated
to pay to Sublessor certain costs as more particularly provided in Section 3.4.
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3.4 Additional Fees and Expenses. Sublessee shall pay for all
charges, fees, and expenses (other than Operating Costs) imposed under the terms
of the Lease for any special purposes relating to Sublessee's use of the
Premises, including, without limitation, any fees charged for any
disproportionate use of utility services at the Premises, any charges for any
after-hour or extra services provided to the Premises, any charges for any
repairs performed by the Landlord to or for the Premises, and any and all
similar charges. Sublessee shall pay such costs directly to the Sublessor within
ten (10) days after the date that Sublessor delivers a written statement to
Sublessee together with supporting documentation provided to Sublessor by the
Landlord. If Sublessor first pays Landlord for any such costs, Sublessee shall
reimburse Sublessor for such costs within ten (10) days after the date that
Sublessor delivers a written statement for such costs to Sublessee.
3.5 Payment. As used herein, the term "Rent" shall mean Base Rent,
all costs payable by Sublessee under Section 3.4 of this Sublease, and all other
amounts payable by Sublessee under this Sublease. Except as otherwise provided
herein, Rent shall be payable in advance in monthly installments commencing on
the Commencement Date and continuing on the first day of each month thereafter
for the balance of the Sublease Term. Rent shall be prorated for any partial
month occurring during the Sublease Term. All items of Rent payable by Sublessee
to Sublessor under this Sublease shall be paid to Sublessor at the address for
Sublessor which is set forth in Section 5.1 of this Sublease.
ARTICLE 4
OTHER AGREEMENTS OF THE PARTIES
4.1 Lease Provisions Binding On Sublessee. Except for the Retained
Obligations (as hereinafter defined), except for the Inapplicable Provisions (as
hereinafter defined), and except as otherwise specifically set forth herein,
Sublessee: shall take subject to and be bound by all of the terms, conditions
and provisions of the Lease which are applicable to the "Tenant" as provided in
the Lease and to the extent that the same apply to the Premises (which terms,
conditions and provisions are incorporated herein as terms, conditions and
provisions of this Sublease); shall comply with and shall be obligated to
perform all of Sublessor's obligations, duties and liabilities in, under, and
with respect to the Lease to the extent that the same apply to the Premises; and
shall indemnify and hold Sublessor harmless from any failure by Sublessee to
comply with its obligations under this sentence and from all liabilities, costs
and expenses, including, without limitation, reasonable attorney's fees,
asserted against or incurred by Sublessor in connection therewith; provided,
however, that for the purposes of this Sublease: (A) the first paragraph of
Paragraph 30 of the Lease shall be applicable only to Landlord and not to
Sublessor and the provisions of the second paragraph of Paragraph 30 of the
Lease applicable to the "Tenant" under the Lease shall be deemed to apply to
each of Sublessor and Sublessee; and (B) the rights reserved to the Landlord
under Paragraph 31 of the Lease shall be exclusively for the benefit of Landlord
and not of Sublessor. Sublessee Shall not commit or permit to be committed any
act or omission which shall violate any term or condition of the Lease. As used
herein, the term "Retained Obligations" shall mean and include (i) the
obligation of Sublessor to pay the Base Rent to the Landlord under Paragraph 3A
of the Lease, (ii) the obligation of Sublessor to pay its share of the Operating
Costs to the Landlord under Paragraph 3B of the Lease, and (iii) all obligations
of the Sublessor under the
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Lease which relate to the portion of the space leased to Sublessor under the
Lease which is not included in the Premises. As used herein, the term
"Inapplicable Provisions" shall mean (a) all of the terms and provisions set
forth in Paragraphs 3B, 15, 16, 18, 27, 38, 43, 44, 45 and 46 of the Lease and
the terms set forth in Exhibits C to the Lease, and (b) any other provisions set
forth in the Lease which are clearly by their terms inapplicable to,
inconsistent with, or superseded by the terms set forth in this Sublease. During
the Sublease Term, so long as there are no uncured defaults by Sublessee under
this Sublease, Sublessor (1) shall comply with and perform all of the Retained
Obligations, (2) shall take any reasonable actions which may be necessary to
endeavor to cause the Landlord to comply with its obligations under the Lease,
except that in no case shall Sublessor be obligated hereby to commence any
lawsuit or other legal proceedings to compel such performance, and (3) shall
not, as to any of the space included in the Premises hereunder, exercise the
option to terminate the Lease as set forth in Paragraph 44 thereof. Sublessee
shall have no right to exercise any of the options granted to Sublessor under
the Lease, including, without limitation, those set forth in Paragraphs 43, 44,
45, and 46, of the Lease. Sublessee shall promptly deliver to Sublessor true and
complete copies of any and all notices or other material correspondence
regarding the Lease, this Sublease, the Building, or the Premises received by
Sublessee at any time during the Sublease Term.
4.2 Sublessee's Rights Under the Lease. Except as otherwise
specifically provided herein, Sublessor hereby grants to Sublessee during the
Sublease Term all of the rights, powers, and privileges that Sublessor has under
the Lease with respect to the Premises. Sublessee shall be entitled during the
Sublease Term to receive any and all services, utilities, repairs, and
facilities to and for the Premises which the Landlord is required to provide
pursuant to the Lease on and subject to the terms thereof; provided, however,
that Sublessor does not hereby guaranty that the same will be provided to the
Premises or that the Landlord will perform any or all of its obligations under
the Lease with respect to the Premises.
4.3 Insurance and Waiver of Claims. Without limiting the generality
of the terms of Section 4.1 above, Sublessee shall obtain and keep in full force
and effect at all times during the Sublease Term all of the liability insurance
coverages required to be maintained by Sublessor under the Lease with regard to
the Premises and casualty insurance coverage on the Furnishings and on all of
its trade fixtures, supplies, inventory, equipment, and personal property
located in the Premises. Sublessee hereby waives and releases Landlord and
Sublessor from and against any and all claims, damages, losses, and liabilities
for any bodily injury, loss of life, or property damage occurring on or about
the Premises, or any part thereof, from any cause whatsoever, including, without
limitation, the negligence of Sublessor or the Landlord, or any of their
respective agents, employees, contractors, or guests, or the negligence of any
other party leasing, occupying, or otherwise using any part of the Building.
Sublessee shall indemnify and hold Sublessor harmless from and against any and
all claims asserted against Sublessor or the Landlord arising from any such
damages, injuries, or losses incurred by Sublessee or any of its agents,
employees, contractors, guests, or other parties upon the Premises. Sublessee
shall cause all policies of insurance maintained by Sublessee hereunder to
contain waiver of subrogation provisions in favor of Sublessor and the Landlord.
4.4 Premises Taken "AS IS". Sublessee agrees that it is taking the
Premises in an "AS IS" condition and without any representations or warranties
by Sublessor of any kind or nature whatsoever. Sublessee agrees that Sublessor
shall have no responsibility to make, arrange
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for, or pay for any tenant improvements whatsoever to the Premises. Furthermore,
Sublessee agrees that it shall be solely responsible for obtaining and
installing, at its own expense, a phone system for the Premises. The
Commencement Date hereunder shall not be extended because of any failure of
Sublessee or any of Sublessee's agents to complete the installation of a phone
system for the Premises by June 1, 1998.
4.5 No Assignment by Sublessee. Sublessee may not assign or
otherwise transfer any of its rights, duties, liabilities, or obligations under
this Sublease without the prior written consent of Sublessor, which consent
shall not be unreasonably withheld, and without the prior written consent of the
Landlord pursuant to the terms of the Lease.
4.6 Right of Reentry. Sublessor reserves the fight to re-enter the
Premises in the event Sublessor defaults under this Sublease or otherwise
inspect the Premises to verify Sublessee's compliance with the terms of this
Sublease.
4.7 Repair and Maintenance. Sublessee shall keep and maintain the
Premises and the Furnishings in good order and repair in a manner consistent
with the terms and conditions set forth in the Lease and this Sublease.
ARTICLE 5
MISCELLANEOUS
5.1 Notices. All notices, demands, consents or other instruments or
communications provided for under this Sublease, or otherwise given under or in
connection with this Sublease, shall be in writing, shall be signed by or on
behalf of the party giving the same, and shall be deemed properly given and
received when the same is actually received or refused if a copy thereof,
addressed to the recipient at the address set forth below, is delivered
personally, by messenger service, by facsimile, by a nationally-recognized
commercial overnight courier service such as Federal Express, or by certified or
registered mail, return receipt requested. All such notices shall be delivered
or sent with transmission, postage, and/or delivery charges paid, to the address
of the intended recipient set forth below or such other address as such party
may designate by written notice given to the other party in accordance with the
terms set forth in this Section 5.1. All notices to Sublessor shall he addressed
to Sublessor at the following address and/or facsimile number:
Echo Bay Management Corp.
0000 Xxxxx Xxxxxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Secretary
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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All notices to Sublessee shall be addressed to Sublessee at the
following address and/or facsimile number:
MPOWER Solutions, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx, President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
5.2 Parking. Sublessee hereby subleases from Sublessor, and
Sublessor hereby subleases and demises to Sublessee, for the Sublease Term a
total of 11 non-reserved spaces in the Parking Garage located in the Improved
Area. The rental rate for the parking spaces subleased by Sublessee hereunder
shall be $25.00 per space per month from the Commencement Date through the
expiration of the Sublease Term. Sublessee's use of the Parking Garage shall be
subject to all of the rules, regulations, and limitations established from time
to time by the Landlord. In no event shall Sublessor have any liability or
responsibility for any losses, damages, or injuries to person or property in
connection with the use of the Parking Garage by Sublessee or any of its agents,
employees, contractors, or guests.
5.3 Remedies. In the event of any breach or default by Sublessee
under this Sublease, Sublessor shall have the right to enforce any of the
remedies provided for in Paragraphs 21, 24, and 25 of the Lease and any other
remedies otherwise available to Sublessor for such default. For purposes of this
Section 5.3, Paragraphs 21, 24, and 25 of the Lease shall be incorporated herein
and the term "Landlord" therein shall be substituted with the term Sublessor,
the term "Tenant" therein shall be substituted with the term Sublessee, and the
term "Lease" therein shall be substituted with the term Sublease.
5.4 No Implied Waiver. No failure by Sublessor to insist upon the
strict performance of any term, covenant or agreement contained in this
Sublease, no failure by Sublessor to exercise any right or remedy under this
Sublease, and no acceptance of full or partial payment during the continuance of
any default by Sublessee, shall constitute a waiver of any such term, covenant
or agreement, or a waiver of any such right or remedy, or a waiver of any such
default by Sublessee.
5.5 Entire Agreement - No Representation. This Sublease and all
exhibits referred to herein, constitute the final and complete expression of the
parties' agreements with respect to the subject matter hereof. Each party agrees
that it has not relied upon or regarded as binding any prior agreements,
negotiations, representations, or understandings, whether oral or written,
except as expressly set forth herein. Sublessor and Sublessee acknowledge and
agree that, except as otherwise may be specifically provided for herein, neither
party has made any representations, warranties, or agreements to or on behalf
of the other party as to any matter concerning the Premises or this Sublease.
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5.6 Modifications in Writing. No amendments or modifications of this
Sublease, and no approvals, consents or waivers by Sublessor under this
Sublease, shall be valid or binding unless in writing and executed by the party
to be bound thereby.
5.7 Severability. If any provision of this Sublease shall be
invalid, illegal or unenforceable it shall not affect or impair the validity,
legality or enforceability of any other provision of this Sublease, and there
shall be substituted for the affected provision, a valid and enforceable
provision as similar as possible to the affected provision.
5.8 Binding Effect. This Sublease shall extend to and be binding
upon the heirs, personal representatives, successors and assigns of the
respective parties hereto. The terms, covenants, agreements and conditions in
this Sublease shall be construed as covenants running with the Land.
5.9 Time of the Essence. Time is of the essence under this Sublease,
and all provisions herein relating thereto shall be strictly construed.
5.10 Survival of Provisions. Notwithstanding any termination of this
Sublease, the same shall continue in force and effect as to any provisions
hereof which require observance or performance by Sublessee subsequent to
termination and as to any provisions which required performance by Sublessee
prior to such termination but which Sublessee failed to perform at such time.
5.11 Applicable Law. This Lease shall be interpreted and enforced
according to the laws of the State of Colorado.
5.12 Brokers. Sublessor hereby represents and warrants to Sublessee
that it has not been represented by any broker in connection with this Sublease
and the transaction contemplated herein except for CB Xxxxxxx Xxxxx, Inc. ("CB
Xxxxxxx Xxxxx"). Sublessee hereby represents and warrants to Sublessor that it
has not been represented by any broker in connection with this Sublease and the
transaction contemplated herein. Sublessor shall pay any amounts due to CB
Xxxxxxx Xxxxx on account of this Sublease and the transaction contemplated
herein pursuant to the terms of a separate agreement between Sublessor and CB
Xxxxxxx Xxxxx and Sublessor shall indemnify and hold harmless Sublessee from and
against any and all claims for commissions, fees, or other compensation payable
to or claimed by CB Xxxxxxx Xxxxx and any other real estate broker, agent,
salesman, finder, or other person on account of any implied or express
commitment or undertaking made by Sublessor as a result of this Sublease or the
consummation of the transaction contemplated herein. Sublessee shall indemnify
and hold harmless Sublessor from and against any and all claims for commissions,
fees, or other compensation payable to or claimed by any real estate broker,
agent, salesman, finder, or other person (except for CB Xxxxxxx Xxxxx) on
account of any implied or express commitment or undertaking made by Sublessee as
a result of this Sublease or the consummation of the transaction contemplated
herein.
5.13 Counterparts: Execution. This Sublease may be executed in
counterparts and, when counterparts of this Sublease have been executed and
delivered by all of the parties hereto, this
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Sublease shall be fully binding and effective, just as if all of the parties
hereto had executed and delivered a single counterpart hereof. Without limiting
the manner in which execution of this Sublease may otherwise be effected
hereunder, execution by any party may be effected by facsimile transmission of a
signature page hereof executed by such party. If any party effects execution in
such manner, such party shall also promptly deliver to the other parties the
counterpart physically signed by such party, but the failure of any such party
to do so shall not invalidate the execution hereof effected by facsimile
transmission.
IN WITNESS WHEREOF, the parties hereto have caused this Sublease to be
executed the day and year first above written.
SUBLESSOR:
ECHO BAY MANAGEMENT CORP., a Delaware
corporation
By: /s/ X. XXXXXXXX
-------------------------------------
Name: Xxxx Xxx X. Xxxxxxxx
-----------------------------------
Its: Secretary
-------------------------------------
SUBLESSEE:
MPOWER SOLUTIONS, INC., a Delaware
corporation
By: /s/ XXXXXX XXXXXXX, President
-------------------------------------
Name: Xxxxxx Xxxxxxx
-----------------------------------
Its: President
-------------------------------------
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EXHIBIT A
IMPROVED AREA
[GREENWOOD PLAZA SOUTH DIAGRAM]
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EXHIBIT B
LEASED PREMISES
[TENTH (10TH) FLOOR DIAGRAM]
B-1
EXHIBIT B
LEASED PREMISES
[NINTH (9TH) FLOOR DIAGRAM]
B-2
EXHIBIT B
LEASED PREMISES
[FIFTH (5TH) FLOOR DIAGRAM]
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EXHIBIT C
Work Agreement
The undersigned, as Landlord and Tenant, are executing simultaneously with this
Work Agreement a Lease covering the Leased Premises therein described (the
"Lease"). This Work Agreement is attached to the Lease as Exhibit C.
Landlord and Tenant agree as follows:
1. Defined Terms
The following terms have the respective definitions indicated for
purposes of this Work Agreement:
(a) "Tenant's Architect" means Saiber. Saiber, Inc., an architectural
firm approved by Landlord to design the Leasehold Improvements on
Tenant's behalf and to represent Tenant during construction, design
and pricing of the Leasehold Improvements.
(b) "Construction Drawings" means the Engineering Working Drawings and
the Architectural Working Drawings.
(c) "Project Engineers" means ABS Consultants, the mechanical engineer,
Xxxxxx. Xxxxxx, the structural engineer, and Xxxxxxx X. Xxxxxxxxx &
Associates, the electrical engineer who shall prepare the
Engineering Working Drawings providing for the construction of the
Leasehold Improvements in accordance with the Space Plan, which
firms have been selected and retained by Tenant's Architect, and
approved by Landlord.
(d) "General Contractor" means the person or firm from time to time
selected by Tenant and approved by Landlord as herein provided,
which approval shall not be unreasonably withheld, to construct and
install the Leasehold Improvements in the Leased Premises.
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(e) "Improvement Allowance" means the allowance to be provided by
Landlord to Tenant as more particularly described in Section 4.1
of this Work Agreement,
(f) "Planning Allowance" means the allowance to be provided by
Landlord to Tenant as more particularly described in Section 4.2
of this Work Agreement
(g) "Moving Allowance" means the allowance to be provided by
Landlord to Tenant as more particularly described in Section 4.3
of this Work Agreement.
(h) "Landlord Delay" means the sum of number of days (i) by which
Landlord was late in providing Landlord's responses contemplated
in this Exhibit C, (ii) of delay caused by changes requested by
Landlord to any aspect of the Leasehold Improvements after the
Construction Drawings have been prepared and approved (including
any delay in preparing any of the documents or drawings
described herein), (iii) of delay caused by Landlord, its
agents, or contractors' interference (if any) in the
construction or delay in processing General Contractor's
submittals as provided herein, (iv) of delay caused by the
inclusion at the instance of Landlord of any work or materials
not shown on the Construction Drawings, (vi) of delay in
completing the Landlord's Work as described herein, (vii) of
delay in inspecting or approving any work completed in
connection With the Leasehold improvements, and (viii) of delay
in taking reasonable steps to cooperate with Tenant in
completing the Leasehold improvements, including, without
limitation, providing access to the Building and the Premises
and completing permit applications' or executing other documents
which may be necessary in connection with the Leasehold
Improvements.
(i) "Landlord's Representative" means Xxxxxxx Xxxxxxxxx (or another
individual employee of Landlord identified by Landlord as the
substitute Landlord's Representative upon reasonable prior
notice to Tenant), the individual employee of Landlord who has
been assigned by Landlord to review and approve the plans and
specifications for the Leasehold Improvements and
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to monitor the construction of the Leasehold Improvements, and
to assist and cooperate with Tenant in connection therewith, as
contemplated herein.
(j) "Landlord's Plan Architect" means the independent architect
hired by Landlord, if any, to assist in Landlord's review of the
Space Plan and the Construction Drawings.
(k) "Landlord's Construction Architect" means the independent
architect hired by Landlord, if any, to assist Landlord and
Landlord's Representative in monitoring the construction of the
Leasehold Improvements, which architect may be the same
architect as Landlord's Plan Architect.
(l) "Leasehold Improvements" means the improvements to the Leased
Premises shown on the Construction Drawings.
(m) "Substantial Completion" means the date that the Leasehold
Improvements are certified by Tenant's Architect as sufficiently
complete, such that Tenant can reasonably occupy and utilize the
Leased Premises for the Permitted Purpose.
Unless otherwise defined herein, capitalized terms used in this Work
Agreement shall have the meanings ascribed to such terms in the Lease.
2. Space Planning and Engineering
2.1 Space Plan. Landlord shall provide to Tenant's Architect the
architectural and engineering drawings for the base building improvements for
the Building and the as-built drawings, plans and specifications, and all other
drawings and construction documents in Landlord's possession or control relating
to the prior improvements made to the Leased Premises ("Landlord Drawings").
Tenant shall provide to Landlord's Representative a space plan for the Leased
Premises (referred to herein as the "Space Plan") prepared by Tenant's
Architect. The Space Plan shall be prepared by the Tenant's Architect at
Tenant's sole cost and expense, subject to Landlord's payment of the Planning
Allowance as hereinafter provided.
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2.2 Approval of Space Plan. Within five (5) business days after the
receipt by Landlord's Representative of the Space Plan, Landlord shall review
the Space Plan. If Landlord determines, in its reasonable good faith judgment,
that the Space Plan is incompatible with the base building specifications for
the Building, Landlord shall so advise Tenant's Architect and Tenant's Architect
shall revise the Space Plan accordingly and resubmit it to Landlord's
Representative and the review procedure and time frames set forth above shall be
repeated. Otherwise, Landlord shall notify Tenant's Architect of its approval of
the Space Plan as promptly as reasonably possible. If no notice of approval or
disapproval is given by Landlord to Tenant's Architect within five (5) business
days after the receipt Of the Space Plan by Landlord's Representative, the
Scheduled Commencement Date shall be automatically extended one day for each day
after such period until Landlord notifies Tenant's Architect of its approval or
disapproval.
2.3 Engineering Working Drawings. Based upon the approved Space
Plan, the Project Engineers shall prepare the structural, plumbing, fire
protection, mechanical, electrical, and life safety engineering drawings
("Engineering Working Drawings"). The Engineering Working Drawings shall be
submitted to Landlord's Representative for review and approval by Landlord,
which approval shall not be unreasonably withheld. If no notice of approval or
disapproval of the Engineering Work Drawings is given by Landlord to Tenant's
Architect within five (5) business days after the receipt thereof by Landlord's
Representative, the Scheduled Commencement Date shall be automatically extended
one day for each day after such period until Landlord notifies Tenant's
Architect of its approval or disapproval. The costs for the preparation of the
Engineering Working Drawings shall be borne by Tenant, subject to Landlord's
payment of the Planning Allowance and the Improvement Allowance as hereinafter
provided.
2.4 Architectural Working Drawings. Tenant's Architect shall
provide Landlord's Representative with architectural working drawings prepared
by the Tenant's Architect (the "Architectural Working Drawings") for the Leased
Premises for review and approval by Landlord, which approval shall not be
unreasonably withheld. The Architectural Working Drawings shall include the
following: (a) partition layout and door locations; (b) electrical outlets,
including the location and usage thereof; (c) telephone outlets, including a
description of the system and the size
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of conduit servicing each outlet, (d) a ceiling plan showing standard and
non-standard lighting, switching requirements, and ceiling construction or
constraints; (e) Tenant's occupancy capacity and usage equipment loads for all
spaces, particularly special usage rooms, including, but not limited to,
conference rooms, lounges, coffee rooms, copy rooms, computer terminal or
keypunch rooms, audio-visual rooms, and reproduction or print rooms which
require special heating, ventilating, air conditioning or fire protection; (f)
Tenant's floor loading for all spaces, particularly special usage rooms; and (g)
floor penetrations, including but not limited to special stairs, dumbwaiters,
conveyors, pneumatic systems, elevators, or architectural features. If Landlord
determines, in its reasonable good faith judgment, that the Architectural
Working Drawings contain design errors, Landlord shall give notice thereof to
Tenant within five (5) business days after the receipt thereof by Landlord's
Representative. If the Architectural Working Drawings are acceptable to
Landlord, Landlord shall communicate its approval to Tenant's Architect as
promptly as reasonably possible, but in any event on or before the expiration of
such five business day period. If Landlord does not reply within such period of
time, the Scheduled Commencement Date shall be automatically extended one day
for each day after such period until Landlord notifies Tenant's Architect of its
approval or disapproval. If Landlord notifies Tenant's Architect of design
errors, Tenant shall revise the Architectural Working Drawings accordingly and
resubmit them to Landlord's Representative and the review procedure set forth
above shall be repeated. When approved by Landlord and Tenant, the Engineering
Working Drawings and the Architectural Working Drawings shall be acknowledged as
such by Tenant and Landlord in writing and such approved drawings shall be
deemed to constitute the "Construction Drawings."
2.5 Changes. If Tenant wishes to make any material changes to the
Construction Drawings, Tenant shall submit a written request describing such
changes to Landlord's Representative. Any such changes may be made by Tenant
only upon the prior written approval of Landlord's Representative, which
approval shall not be unreasonably withheld. Landlord's Representative shall
respond to all written requests for any such changes within five (5) days of
receipt of the same by Landlord's Representative. If Landlord's Representative
does not respond within such period of time, the Scheduled Commencement Date
shall be automatically extended one day for each day after such period until
Landlord notifies Tenant's Architect of its approval or disapproval.
C-5
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3. Construction of Leasehold Improvements
3.1 Tenant to Construct Leasehold Improvements. Following approval
of the Construction Drawings, Tenant shall be responsible to the completion of
the Leasehold Improvements in substantial compliance with the Construction
Drawings, at its sole cost and expense, subject to Landlord's payment of the
improvement Allowance. Landlord shall deliver possession of the Leased Premises
to Tenant for the purpose of constructing the Leasehold Improvements (and
installing Tenant's trade fixtures, furnishings, equipment, and other personal
property) on or before June 1, 1995; except that, as to those portions of the
Leased Premises which are occupied as of the date of this Lease, Landlord shall
deliver such possession to Tenant on or before June 30, 1995. It is understood
and agreed that Landlord is making the Leased Premises available to Tenant for
such purposes prior to the Lease Commencement Date and prior to the commencement
of Tenant's obligations for the payment of Rent under the Lease. Tenant's use
and occupancy of the Leased Premises prior to the Lease Commencement Date shall
be subject to all of the terms and provisions of the Lease, except for Tenant's
obligation to pay Rent. There shall be no charge to Tenant for its early access
to the Building and the Leased Premises or for the use by Tenant of electrical
power and other Building services during the construction of the Leasehold
improvements.
3.2 General Contractor. Tenant shall enter into a direct contract
for construction services to complete the Leasehold improvements with the
General Contractor. Prior to execution of the contract between Tenant and the
General Contractor, Tenant shall provide a copy of the contract to Landlord's
Representative for its review and approval, which approval shall not be
unreasonably withheld. Landlord shall review the contract and approve or
disapprove the contract in writing within five (5) days thereafter. If Landlord
fails to notify Tenant's Architect of its approval or disapproval of the
contract within such 5-day period, the Scheduled Commencement Date shall be
automatically extended one day for each day after such period until Landlord
notifies Tenant's Architect of its approval or disapproval. Tenant and the
General Contractor shall have the right to select and contract directly with all
sub-contractors and all other parties supplying work or materials to the Leased
Premises. The Genera Contractor and all sub-contractors shall be required to
comply with the Construction Procedures set forth on Exhibit K attached hereto,
as the same
C-6
17
may be amended from time to time by Landlord upon reasonable prior notice to the
General Contractor.
3.3 Compliance with Laws. Tenant shall cause Tenant's Architect, the
General Contractor, and all Sub-contractors to: (i) conduct their work in such a
manner so as not to unreasonably interfere with any other construction occurring
on or in the Building or any other tenants of the Building, (ii) comply with all
laws, codes, permits, rules, and regulations relating to the construction
activities in or on the Building; and (iii) maintain such insurance in force
and effect as required by the Lease, but in any event not less than that
required by applicable law.
4. ALLOWANCES
4.1 Improvement Allowance. Landlord shall pay to Tenant an
Improvement Allowance for the costs incurred by Tenant in the construction of
the Leasehold Improvements to be made to the Leased Premises in an amount equal
to the product of $20.00 multiplied by the total number of rentable square feet
in the Leased Premises.
4.2 Planning Allowance. Landlord shall pay to Tenant a Planning
Allowance for costs incurred by Tenant in the planning and designing of the
Leasehold Improvements to be made to the Leased Premises in an amount equal to
the product of $2.00 multiplied by the total number of rentable square feet in
the Leased Premises. The Planning Allowance shall be payable by Landlord to
Tenant upon Landlord's approval of the Architectural Working Drawings and the
Engineering Working Drawings.
4.3 Moving Allowance. Landlord shall pay to Tenant a Moving
Allowance for the costs incurred by Tenant in relocating its business to the
Leased Premises in an amount equal to the product of $1.00 multiplied by the
total number of rentable square feet contained in the Leased Premises. The
Moving Allowance shall be payable by Landlord to Tenant upon the Lease
Commencement Date.
4.4 Payment of Improvement Allowance. Tenant shall from time to time
submit to Landlord's Representative invoices for any costs and expenses incurred
in connection with the Leasehold Improvements, together with evidence of payment
of
C-7
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such invoices, lien waivers, and any other documentation reasonably requested by
Landlord's Representative, and, subject to the approval of such items by
Landlord's Representative, Landlord shall pay Tenant the amount set forth on
such invoice or invoices as promptly as reasonably possible but in no event
later than thirty (30) days after the receipt of such items by Landlord's
Representative. Landlord shall from time to time pay amounts against the
Improvement Allowance in accordance with the terms set forth herein up to the
total amount of the Improvement Allowance; provided that, Landlord shall have
the right to retain up to a total of 10% of the Improvement Allowance until
after the General Waiver (as defined below) is delivered to Landlord's
Representative. Upon completion of the Leasehold Improvements, Tenant shall
obtain and deliver to Landlord's Representative a general lien waiver covering
the Leasehold Improvements from the General Contractor, which lien waiver shall
be in form and substance reasonably acceptable to Landlord (the "General
Waiver").
5. Landlord's Work
5.1 Existing Improvements. All existing improvements in the Leased
Premises as of the date of this Lease, including, without limitation, all doors,
door frames, hardware, ceiling grids and tiles, light fixtures, millwork,
built-ins, end all similar items (the "Existing Improvements"), may be used by
Tenant at no charge. Tenant shall have the right to demolish and remove from the
Leased Premises any and all of the Existing Improvements which Tenant elects not
to use; provided that, prior to such demolition, Tenant shall offer any such
items to Landlord's Representative. If Landlord elects to salvage any such
items, Landlord shall, at Landlord's expense, remove such items in a manner
which will not delay or interfere with the construction of the Leasehold
Improvements; provided that Tenant shall use reasonable efforts to cooperate
with Landlord in Landlord's removal of any such items.
5.2 Core and Shell Work. All core and shell work required to be done
in connection with the Leasehold Improvements, including without limitation,
floor leveling to a specification of a variation of not more than one quarter
inch for every ten feet, shall be done by Landlord, at Landlord's expense.
C-8
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6. Relocation of Existing Tenants and Relinquishment of Rights
6.1 Relocation and Relinquishments. In order for the Leased Premises
to be ready for Tenant's use and occupancy at the times contemplated herein, it
will be necessary to take the following actions:
(A) Chrysler Financial Corporation will be relocated from the space
which it currently occupies on the 9th Floor of the Tower to
other space containing 5,904 rentable square feet on the 16th
Floor of the Tower (the "Chrysler Relocation").
(B) Budget Rent-A-Car will relinquish all expansion and any other
rights and options which it currently has on the 5th Floor of
the Tower (the "Budget Relinquishment").
(C) Sybase will relinquish all expansion and any other rights and
options which it currently has on the 5th Floor of the Tower,
except for a right of first refusal on the space on the 5th
Floor of the Tower (containing approximately 5,100 rentable
square feet) which will continue to be leased to Xxxxxxxx Pipe &
Steel after the Xxxxxxxx Contraction described in Paragraph
6.1(D) below (the "Sybase Relinquishment").
(D) Xxxxxxxx Pipe & Steel will contract the space it leases on the
5th Floor of the Tower to a total of approximately 5,100
rentable square feet, and will relinquish all other rights and
options which it currently has on the 5th Floor of the Tower
(the "Xxxxxxxx Contraction").
(E) Missing Link will cancel all rights and options to lease space
on the 5th Floor of the Tower (the "Missing Link Cancellation").
The foregoing actions are hereinafter referred to collectively as the
"Relinquishments." Both Landlord and Tenant shall use their best efforts and
shall cooperate with each other to cause all of the Relinquishments to be
completed as promptly as reasonably possible. In the event that any of the
Relinquishments is not completed in a manner
C-9
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which is reasonably satisfactory to either party hereto on or before May 20,
1995, both Landlord and Tenant shall have the right to terminate this Lease by
giving written notice of termination to the other party at any time after such
date and on or before June 5, 1995.
6.2. Coordination. Landlord shall, at Landlord's expense (subject to
Tenant's obligation to pay the amounts set forth in Section 6.3 below),
coordinate all aspects of the Chrysler Relocation, the Budget Relinquishment,
the Sybase Relinquishment, the Xxxxxxxx Contraction, and the Missing Link
Cancellation in a manner which will cause all portions of the Leased Premises to
be available to Tenant at the times contemplated herein.
6.3 Payments by Tenant. Tenant shall reimburse Landlord for the
following costs incurred in connection with the Chrysler Relocation, the Budget
Relinquishment, the Sybase Relinquishment, the Xxxxxxxx Contraction, and the
Missing Link Cancellation:
(A) In connection with the Chrysler Relocation, Tenant shall
reimburse Landlord for all Relocation Costs paid by Landlord in
connection with the Chrysler Relocation; provided that in no
event shall Tenant be obligated hereby to pay any amount greater
than $159,400 for such Relocation Costs. As used herein, the
"Relocation Costs" shall mean all of the actual out-of-pocket
costs incurred by Landlord in connection with the Chrysler
Relocation, including, without limitation, all such costs
incurred by Landlord for: the preliminary space planning; final
space planning; construction documents; mechanical engineering
design and documentation; electrical design and documentation;
demolition; construction management costs including fees;
special consultants costs (structural, acoustical, vibration,
etc.), direct costs of construction; all required permits and
fees; the cost to move personal effects and furniture; the
reprinting of Stationary and related materials; the rewiring and
relocation of telecommunications equipment; and any other
reasonable expenses incurred by Landlord in connection with such
relocation.
C-10
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(B) In connection with the Budget Relinquishment, Tenant shall
reimburse Landlord for all relinquishment fees and other costs
paid by Landlord for such relinquishment up to a total of
$50,000.
(C) In connection with the Sybase Relinquishment, Tenant shall
reimburse Landlord for all relinquishment fees and other costs
paid by Landlord for such relinquishment up to a total of
$9,750.
(D) Tenant shall have no obligation to pay or reimburse Landlord
for any costs incurred in connection with the Xxxxxxxx
Contraction or the Missing Link Cancellation.
All costs payable by Tenant hereunder shall be paid by Tenant to Landlord within
ten (10) business days after Tenant's receipt of evidence of the payment of such
costs by Landlord.
7. Supervision Fee
Landlord shall be entitled to a fee (the "Supervision Fee") for the
actual out-of-pocket costs paid by Landlord to the Landlord's Plan Architect (at
a rate not to exceed $100 per hour), the Landlord's Construction Architect (at a
rate not to exceed $100 per hour, and the Landlord's Representative (at the rate
not to exceed $28 per hour) in connection with the Landlord's review and
approval of the Space Plan and the Construction Drawings and the supervision of
the construction of the Leasehold Improvements. Tenant shall pay amounts against
the Supervision Fee from time to time within ten (10) business days after
Tenant's receipt of evidence of the payment of such costs by Landlord.
Landlord and Tenant have executed this Work Agreement contemporaneously
with execution of the Lease.
LANDLORD: HUNTINGTON BEACH COMPANY, a California
Corporation, by its agent, Chevron
Real Estate Management Company, a
division of Chevron U.S.A. Inc., a
Delaware Corporation
By: /s/ X.X. XXXXXXXX
--------------------------------
Its: Vice President
--------------------------------
TENANT: ECHO BAY MANAGEMENT CORP.
a Delaware Corporation
By: [SIGNATURE ILLEGIBLE]
--------------------------------
Its: Controller
--------------------------------
By: [SIGNATURE ILLEGIBLE]
--------------------------------
Its: Senior Vice President, Finance
--------------------------------
C-11
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EXHIBIT A
TO
SUBLEASE
[Copy of the Lease]
SEE THE ATTACHED
A-1
23
EXHIBIT A
PLAZA TOWER ONE
OFFICE
LEASE
Landlord:
HUNTINGTON BEACH COMPANY,
by its managing agent, Chevron Real Estate Management Company
Tenant:
ECHO BAY MANAGEMENT CORP.
24
INDEX
Page
----
1. DEFINITIONS..........................................................6
2. GRANT: USES..........................................................8
3. RENT.................................................................9
4. UTILITIES...........................................................12
5. SERVICES............................................................13
6. INDEMNIFICATION AND INSURANCE.......................................15
7. WAIVER OF SUBROGATION...............................................17
8. REPAIRS.............................................................17
9. TENANT'S PROPERTY...................................................18
10. IMPROVEMENTS AND ALTERATIONS BY TENANT..............................18
11. CASUALTY............................................................19
12. ASSIGNMENT, LETTING AND SUBLETTING .................................19
13. LIENS AND INSOLVENCY................................................20
14. CONDEMNATION........................................................20
15. CONSTRUCTION CONDITIONS.............................................21
16. OCCUPANCY, LEASE COMMENCEMENT DATE..................................21
17. RULES AND REGULATIONS...............................................22
18. PARKING ............................................................22
19. ACCESS..............................................................22
20. SIGNS...............................................................23
21. TENANT'S DEFAULT....................................................23
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Page
----
22. PERSONAL PROPERTY LIEN..............................................25
23. QUIET ENJOYMENT; INABILITY TO PERFORM ..............................25
24. HOLD OVER TENANCY...................................................26
25. ATTORNEYS' FEES.....................................................26
26. AMENDMENT, WAIVER...................................................26
27. NOTICES ............................................................27
28. BINDING EFFECT, GENDER .............................................27
29. ADDENDA AND ATTACHMENTS ............................................28
30. LIMITATION OF LIABILITY ............................................28
31. LANDLORD'S RESERVED RIGHTS .........................................28
32. OFFSET STATEMENT....................................................29
33. ACCORD AND SATISFACTION.............................................29
34. SEVERABILITY .......................................................30
35. SUBORDINATION ......................................................30
36. TIME................................................................30
37. APPLICABLE LAW .....................................................30
38. BROKER'S INDEMNIFICATION............................................31
39. SECURITY DEPOSIT ...................................................31
40. CONFLICTS OF INTEREST ..............................................31
41. TENANT REPRESENTATIONS .............................................31
42. ESTOPPEL CERTIFICATE ...............................................32
43. RIGHT TO RENEW .....................................................32
44. RIGHT TO TERMINATE .................................................33
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Page
----
45. RIGHT OF FIRST REFUSAL .............................................34
46. RIGHTS OF FIRST OFFER ..............................................34
EXHIBITS
EXHIBIT A: Map of Improved Area
EXHIBIT B: Floor Plan of Leased Premises
EXHIBIT C: Work Agreement
EXHIBIT D: Janitorial Specifications
EXHIBIT E: Lease Commencement Date Statement
EXHIBIT F: Rules and Regulations
EXHIBIT G: Attornment and Nondisturbance Agreement
EXHIBIT H: Estoppel Certificate
EXHIBIT I: HVAC Specifications
EXHIBIT J: Definition of Core and Shell
EXHIBIT K: Construction Procedures
EXHIBIT L: Chevron Self-Administered Claims Adjustment Program
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LEASE
This Lease ("Lease") is made as of the __day of April, 1995 by and
between HUNTINGTON BEACH COMPANY, a California corporation, ("Landlord"), by its
managing agent, Chevron Real Estate Management Company, a division of Chevron
U.S.A. Inc., and ECHO BAY MANAGEMENT CORP., a Delaware Corporation ("Tenant").
WITNESSETH:
Landlord and Tenant hereby agree as follows:
1. DEFINITIONS
A. "Improved Area" shall mean the real property located in Arapahoe
County, Colorado, described and shown outlined in blue on Exhibit A, attached
hereto, including the Building (as defined below) all land thereunder and all
appurtenances thereto, such as entries, sidewalks, curb areas, garage complexes,
driveways, landscaped areas, the Retail Area, and the Parking Garage.
B. "Leased Premises" shall mean the interior space shown outlined
in red on the floor plan of the Tower portion of the Building shown on Exhibit
B, attached hereto, containing approximately 55,510 rentable square feet,
amounting to approximately 50,827 BOMA usable square feet (computed by measuring
to the finished surface of the office side of the corridor and other permanent
walls, to the center of partitions that separate the Leased Premises from
adjoining usable areas, and to the inside surface of the exterior Building
glass, with no deductions made for columns and projections necessary to the
Building), plus the appurtenant right to use, in common with others, and the
entries, sidewalks, curb areas, driveways, cafeterias, health club facilities
(subject to the execution by Tenant of the form release and indemnity agreement
used from time to time by Landlord regarding the use of such health club
facilities by Tenant's employees), risers, conduit, and other public portions of
the Improved Area (the "Common Areas").
C. "Building" shall mean the building shown outlined in red on
Exhibit A, including the Tower, the Retail Area, and the Parking Garage, and
within which the Leased Premises are located.
D. "Tower" shall mean the portion of the Building shown outlined in
green on Exhibit A.
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E. "Retail Area" shall mean the area of the Building shown outlined
in orange on Exhibit A.
F. "Parking Garage" shall mean the portion of the Building
identified as the Parking Garage on Exhibit A.
G. "Lease Commencement Date" shall have the meaning set forth in
Paragraph 16 of this Lease.
H. "Scheduled Commencement Date" shall mean September 1, 1995.
I. "Lease Term" shall mean the period beginning on the Lease
Commencement Date and ending one hundred twenty (120) months thereafter. Any
reference in this Lease to the Lease Term or the "term" shall all be deemed to
include any renewal period authorized under this Lease, if exercised by Tenant.
J. "Base Operating Costs" shall mean the Operating Costs for
calendar year 1996.
K. "Rent" shall mean Base Rent, Tenant's Pro Rata Share of
Operating Costs in excess of Base Operating Costs, and any other amounts payable
by Tenant to Landlord under this Lease.
L. "Base Rent" shall mean the following for the periods indicated:
Period $/Sq. Ft./year; $/month
------ -----------------------
Years one through five:
Years six through ten:
M. "Tenant's Total Square Footage" shall mean 55,510 square feet,
which amount is equal to the sum of the square footage in the Leased Premises,
an allocated portion of Common Area square footage on the floors on which the
Leased Premises are located, and an allocated portion of the square footage of
the remaining Common Areas in the Tower.
N. "Total Square Footage of the Tower" shall mean 449,930 square
feet.
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O. "Tenant's Pro Rata Share" shall mean 12.3375% calculated by
dividing Tenant's Total Square Footage by the Total Square Footage of the Tower.
P. "Permitted Purpose" shall mean use of the Leased Premises for
general office purposes and purposes incidental thereto, unless otherwise agreed
to in writing by Landlord in its Sole discretion.:
Q. "Landlord's Broker" shall mean F. Philipse Xxxxxxxx.
R. "Tenant's Broker" shall mean Xxxxxxx Realty Corporation of
Colorado.
2. GRANT; USES
A. Subject to and on the terms and conditions set forth herein,
Landlord hereby demises and leases the Leased Premises to Tenant, and Tenant
hereby leases the Leased Premises from Landlord, to have and to hold during the
Lease Term.
B. Tenant agrees to use and occupy the Leased Premises for the
Permitted Purpose only, and for no other purpose whatsoever. Tenant covenants to
comply with all federal, state, and local statutes, laws, ordinances,
regulations, and rules (including, without limitation, as to the Leased Premises
and except as otherwise provided in this Lease, the laws and regulations
commonly known as the Americans with Disabilities Act) pertaining to Tenant's
use and occupancy of the Leased Premises and the Building. Tenant shall not do
or permit anything to be done in or about the Leased Premises or the Building
which will in any way (i) increase the existing rate of or affect any fire or
other insurance upon the Building or any of its contents; (ii) injure the
Building; (iii) constitute waste of the Leased Premises or the Building; or (iv)
be a nuisance, public or private, or menace to other tenants of the Building, or
anyone else.
C. Subject to the provisions of the Work Agreement attached hereto
as Exhibit C, and subject to the terms of Paragraph 16 below, Landlord and
Tenant shall cooperate with each other and use reasonable efforts to cause
Substantial Completion of the Leased Premises to occur on or before the
Scheduled Commencement Date.
D. Tenant agrees that it has determined to Tenant's satisfaction
that the Leased Premises can be used for the Permitted Purpose.
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E. By taking possession hereunder, Tenant shall have acknowledged
that it has examined the Leased Premises and accepts the same as being in the
condition called for by this Lease, except for any latent defects or any defects
identified by Tenant in a written notice given to Landlord within ten days after
Tenant takes possession of the Leased Premises. In the event any defects or
omissions appear in any of Landlord's Work (as defined in the Work Agreement) or
in any component of the building systems or structure, Landlord agrees, to
correct any such defect or omission.
3. RENT
A. Tenant shall pay to Landlord on the first day of each calendar
month during the Lease Term, at the mailing address as designated from time to
time by Landlord and without deduction or setoff (unless authorized by this
Lease), the Base Rent, any other charges provided for in this Lease, and
Tenant's Pro Rata Share of Operating Costs in excess of the Base Operating
Costs. Rent for any fractional calendar month shall be that proportion of the
Rent which the number of days during such month bears to the total number of
days in such month. If any Rent due hereunder is not paid by Tenant on the date
due, as to the second and all subsequent late payments during each calendar year
during the Lease Term, such amounts shall be subject to a late fee equal to two
percent (2%) per month until paid. For purposes of this Paragraph 3A, and until
directed to do otherwise, Tenant shall mail all payments required to be paid
under this Lease to the following address:
CHEVRON REAL ESTATE MANAGEMENT COMPANY
P.O. BOX. 297864
XXXXXXX, XXXXX 00000
B. On and subject to the terms and conditions set forth in this
Paragraph 3B, during the Lease Term, Tenant shall pay to Landlord Tenant's Pro
Rata Share of Operating Costs in excess of the Base Operating Costs.
(1) As used herein, "Operating Costs" shall mean (unless
otherwise excluded herein) the sum of (i) the Tower Costs, plus (ii) the General
Project Expense, plus (iii) the Tax Cost. As used herein, the "Tower Cost" shall
mean all expenses, costs, and disbursements made or required to be made by
Landlord in connection with the maintenance, repair, and operation of the Tower,
including, without limitation, personal property taxes on personal property
located at and used in the operation of the Tower; utilities not separately
metered to individual tenants; costs of installing any energy reduction devices
and systems, except those included in the initial Building specifications,
amortized in accordance with generally accepted accounting principles applied on
a consistent basis (but in no event shall such costs exceed the amount of any
savings actually achieved by such device or system);
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31
janitorial service; operating supplies; tools and equipment used for the daily
operation of the Tower; air conditioning, heating, and elevator repair and
maintenance; and on site property management fees. As used herein, the "General
Project Expense" shall mean that portion of the costs and expenses for the
operation, maintenance, and repair of the Improved Area which are not fairly
allocable to the Parking Garage or to the Retail Area or any other rentable
components of the Improved Area and which Landlord determines from time to time
on a fair and equitable basis to be allocable to the Tower; including, without
limitation, costs incurred in connection with cleaning the Common Areas within
the Improved Area; property and general liability insurance coverages covering.
the Improved Area including the Building (including Landlord's estimated fair
market cost, not to exceed ISO (insurance Services Office) Market Rates for any
risks against which Landlord elects to self-insure); management and maintenance
personnel's wages, payroll taxes, welfare, and disability benefits reasonably
incurred in the operation of the Improved Area; snow and ice removal;
landscaping; rubbish removal; and on site security. As used herein, the "Tax
Cost" shall mean the aggregate of all taxes and assessments (exclusive of any
penalties or interest on any amounts not paid when due by Landlord) imposed by
any governmental authority upon the real property included within the Improved
Area (including, without limitation, any assessments imposed by the Greenwood
Plaza South Metropolitan District or any other special taxing districts whose
territorial boundaries include the Improved Area) which are not fairly allocable
to the Parking Garage, the Retail Area, or any other rentable components of the
Improved Area and which Landlord determines from time to time on a fair and
equitable basis to be allocable to the Tower.
(2) Operating Costs shall not include monies spent for
income tax accounting; expenses resulting from the negligence of Landlord;
expenses and costs associated with the operation of Landlord's business
organization; legal fees; space planning fees; real estate brokerage
commissions; decorating fees; advertising costs associated with development and
leasing of the Building; rent concessions, construction allowances, or other
leasing incentives; costs of repairs or replacements or other work occasioned by
fire, theft, vandalism, windstorm, or other casualty or by the exercise by any
governmental authority of the power of eminent domain; any and all costs
incurred in installing, operating, maintaining, and owning any services for
which a fee or other income for the use thereof is paid to or otherwise
collected by Landlord, including any restaurants, cafeterias, lunchrooms, or
other similar facilities; all costs associated with the Parking Garage and with
any other on-site or off-site parking facilities; all costs for services
provided by Landlord for which it receives a separate fee or other compensation
in any form or from any source whatsoever; all costs fairly attributable to the
Retail Area or to any other rentable components of the Improved Area;
depreciation, amortization, and interest on the capital retirement of debt,
payments of any type under any mortgage, deed of trust, ground lease, or other
similar obligations encumbering any portion of the Improved Area; bad debt or
rent losses of Landlord; fines, penalties, interest, or other charges
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32
paid by Landlord to any other tenant or third party; interest, depreciation, or
expenditures of a capital nature, except to the extent that such expenditures
are required due to a change in law after the Lease Commencement Date, or are
incurred to cause a reduction in any item of Operating Costs, in which case such
capital expenditures shall be amortized in accordance with generally accepted
accounting principles applied on a consistent basis (but in no event shall any
costs for any device or system installed to reduce any item of Operating Costs
exceed the amount of any savings actually achieved by such device or system);
and all costs incurred by Landlord in making any alterations to the Building
pursuant to the laws and regulations commonly known as the Americans with
Disabilities Act. Also, if Landlord constructs any other buildings for lease
within the boundaries of the Improved Area, Operating Costs, exclusive of those
incurred directly for the Building, shall be reasonably allocated by Landlord on
a fair and equitable basis between the Building hereunder and such other
buildings. The determination of Operating Costs and their allocation and
amortization shall be in accordance with generally accepted accounting
principles applied on a consistent basis.
(3) If the Building and other buildings located on the
Improved Area are not fully rented during all or a portion of any calendar year,
Landlord shall make an appropriate adjustment of the Operating Costs which vary
with occupancy for such year, employing sound accounting and management
principles, to determine the amount of Operating Costs payable by Tenant
hereunder had all such buildings been fully rented.
(4) Operating Costs shall not reflect any type or degree of
service or duty performed by or through Landlord for any other tenant which is
not required to be performed for Tenant under this Lease which results in a cost
this Lease.
(5) During December of each calendar year or as soon
thereafter as practicable, Landlord shall give Tenant written notice of
Landlord's estimate of Tenant's Pro Rata Share of Operating Costs in excess of
Base Operating Costs payable hereunder for the ensuing calendar year. On or
before the first day of each month during the ensuing calendar year, Tenant
shall pay to Landlord one twelfth (1/12) of such estimated amount, provided that
if such notice is not given in December, Tenant shall continue to pay on the
basis of the prior year's estimate until the month after such notice is given.
If at any time it appears to Landlord that Tenant's Pro Rata Share of Operating
Costs payable hereunder for the current calendar year will vary from its
estimate by more than twenty percent (20%), Landlord may, by written notice to
Tenant, revise its estimate for such year, and subsequent payments by Tenant for
such year shall be based upon such revised estimate.
(6) Within ninety (90) days after the close of each calendar
year, or as soon thereafter as practicable, Landlord shall deliver to Tenant a
statement
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of additional Rent for Operating Costs payable hereunder for such calendar year.
If such statement shows an amount owing by Tenant that is less than the
estimated payments for such calendar year previously made by Tenant, Landlord
shall credit the excess to the next succeeding monthly installment or
installments of Rent, or, if no additional Rent is payable hereunder by Tenant
at the time that such determination is made, Landlord shall pay such amounts to
Tenant. If such statement shows an amount owing by Tenant that is more than the
estimated payments for such calendar year previously made by Tenant, Tenant
shall pay the deficiency to Landlord within thirty (30) days after delivery of
such statement.
(7) If, for any reason other than the default of Tenant,
this Lease shall terminate on a day other than the last day of a calendar year,
the additional Rent for Operating Costs payable by Tenant applicable to the
calendar year in which such termination shall occur shall be prorated on the
basis which the number of days from the commencement of such calendar year to
and including such date of termination bears to three hundred sixty-five (365).
(8) Landlord shall, upon Tenant's written request, deliver
to Tenant a written accounting showing how Operating Costs were calculated for
any year (the "Statement"). In the event Tenant objects to the Statement of
Operating Costs for any year, Tenant and Landlord agree to cooperate in good
faith to resolve any such objection. The foregoing notwithstanding, Tenant shall
in no way be relieved of its obligation to pay Tenant's Pro Rata Share of
Operating Costs in excess of the Base Operating Costs as calculated by Landlord
until such objection is resolved. If Landlord and Tenant are unable to resolve
such objection within thirty (30) days after Tenant's notice of objection was
given, Tenant shall have the right of access to all of Landlord's books and
records relating to the Operating Costs and may cause a review thereof to be
performed by an independent accountant for the period covered by the Statement
(the "Tenant's Audit"). After the completion of the Tenant's Audit, the
individual who prepared the Statement and the individual who prepared the
Tenant's Audit shall use reasonable good faith efforts to agree on any item in
dispute between the Statement and the Tenant's Audit and any items as to which
agreement is reached shall be resolved by such agreement. If the two individuals
fail to agree as to any items in dispute within twenty (20) days after the
completion of the Tenant's Audit, then the two individuals shall appoint an
independent certified public accountant (the "Third Accountant")-and shall
deliver copies of the Statement and the Tenant's Audit to such Third Accountant,
specifying the individual items still in dispute. The Third Accountant shall
resolve each item in dispute in an amount not higher than that determined by the
higher audit and not lower than that determined by the lower audit as determined
by the Third Accountant's review of the Statement, the Tenant's Audit, and such
further inquiries and investigations as the Third Accountant determines to make.
The Third Accountant shall make his decision as to each item in dispute and give
written notice of his decision to Landlord and Tenant within fifteen (15) days
after this appointment. The determination made as to any
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items in accordance with the foregoing procedures shall be final and binding on,
both Landlord and Tenant as to such items. Any adjustment required to be made to
any previous payment made by Tenant by reason of such decision shall be made by
Tenant or Landlord within fourteen (14) days after notice of the final decision
has been given to Landlord and Tenant. The party required to make payment under
such adjustment shall bear all costs of the Tenant's Audit and the Third
Accountant, unless such payment is less than $20,000.00, in which case Tenant
shall bear all such costs.
4. UTILITIES
Landlord shall provide to the Leased Premises the following utility
services: hot and cold running water, sewer, natural gas, and electric power in
an amount not less than an average of 6.0 xxxxx per rentable square foot in the
Leased Premises. Electrical usage by Tenant shall be determined on an average
hourly basis by readings made in hourly increments during normal business hours
and such usage shall be calculated and determined on an annualized basis.
Utility charges for which separate xxxxxxxx are not available shall be treated
as Operating Costs. If Landlord shall from time to time reasonably determine
that the use of electricity or any other utility or service in the Leased
Premises is disproportionate to the use of other tenants, Landlord may require a
separate meter to be installed at Tenant's expense in the Leased Premises to
monitor the use of any such utility or service and Tenant shall pay the amount
of all charges for the separately metered use of such utility or service;
provided that in no event shall any electrical usage by Tenant which does not
exceed the 6.0 xxxxx per square foot standard set forth above in this Paragraph
4 be considered disproportionate hereunder. To the extent that, during any year,
Tenant pays the charges incurred for its usage of any separately metered utility
or service directly to either Landlord or the provider of such service, based on
such separate metering for such utility or service, the Operating Costs shall be
adjusted in a fail' and equitable manner (as determined by Landlord in its
reasonable discretion) so that the Operating Costs payable by Tenant shall not
include costs attributable to providing to other rentable components in the
Improved Area the utilities or services which are separately metered and paid
for by Tenant.
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5. SERVICES
Landlord shall operate, maintain, repair, replace, and improve all
systems, facilities, equipment, and services provided to the Building, the
Common Areas, and all other portions of the Improved Area as and when needed in
accordance with standards from time to time prevailing for first class office
buildings in the Denver metropolitan area.
A. Landlord shall provide in the Leased Premises, and in the
Building and Improved Areas as indicated, the following services:
(1) Heat, ventilation, and cooling as required for the
comfortable use and occupancy of the Leased Premises and meeting the standards
Set forth in Exhibit J attached hereto during the hours of 6:00 a.m. through
6:00 p.m. Monday through Friday and 7:00 a.m. through 1:00 p.m. on Saturday
(referred to herein as the "Building Hours"); provided that, if Tenant gives
Landlord at least 24 hours prior notice that Tenant requires heating,
ventilation, or cooling of the Leased Premises at any other time, Landlord shall
provide the same at Landlord's actual cost therefor, which cost is currently
$25.00 per hour; provided further that, if Tenant does not give Landlord 24
hours prior notice of any such request, Landlord shall use reasonable efforts to
provide the same to Tenant at the times requested by Tenant, but Tenant shall
pay any additional charge reflecting the increased actual cost to Landlord in
providing such service at such times, which charge shall be disclosed to Tenant
when it orders such service.
(2) Janitorial services, including window washing, as
reasonably required to keep the Leased Premises in a clean and wholesome
condition and meeting the specifications set forth on Exhibit D attached hereto
for regular service on each Monday through Friday during the Lease Term.
(3) Electric power to the Leased Premises at all times for
normal lighting, office equipment, and general business operations in an amount
at least equal to an average of 6.0 xxxxx per square foot in the Leased Premises
in accordance with the terms Set forth in Paragraph 4 hereof; provided that,
lighting to the Premises outside of the normal Building Hours shall be subject
to a charge to Tenant in an amount not to exceed Landlord's reasonable good
faith estimate of the actual out-of-pocket costs incurred by Landlord in
providing such lighting (which amount is currently $5.00 per floor per hour)and
shall be provided to the Premises at any time on a 24-hour basis upon request by
Tenant, or any of Tenant's employees, and Landlord shall maintain a procedure by
which Tenant may make such request at any time by telephone and such lighting
service shall, if requested by Tenant, be provided within one-half hour after
any such request is made by Tenant.
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(4) Replacement of Building Standard fluorescent tubes,
light bulbs, and ballasts in the Leased Premises and in the Common Areas as
required from time to time as a result of normal usage.
(5) At all times, domestic hot and cold running water and
necessary supplies in washrooms sufficient for the normal use thereof by
occupants in the Building.
(6) Access to and egress from the Leased Premises and the
Parking Garage at all times, including elevator service.
(7) Heat, ventilation, cooling, lighting, electric power,
domestic running water, window cleaning, and janitorial service in all Common
Areas of the Building.
(8) Snow removal, landscaping, and janitorial services as
needed from time to time in all grounds and other Common Areas of the Improved
Area,
B. Landlord shall operate, maintain, repair and replace the
systems, facilities and equipment necessary for the proper operation of the
Building, the Common Areas, and all other portions of the Improved Area, and for
the provision of Landlord's services under this Lease, and shall be responsible
for and shall expeditiously maintain and repair the foundations, structure, and
roof of the Building, and repair damage to the Building, and shall be
responsible for the compliance of the Building (including the core and shell
portions described on Exhibit J attached hereto), all Common Areas, and all
other portions of the Improved Area with all recorded covenants affecting the
improved Area and with all applicable federal, state, and local laws, rules,
codes, and other regulations, including, without limitation, all building and
zoning codes and regulations, all environmental laws and regulations, and the
Americans with Disabilities Act.
C. Landlord shall not be liable to Tenant, nor shall Rent be
abated, due to any interruption of the services which Landlord is required to
provide under Paragraph 4 above or this Paragraph 5 resulting from any cause or
event which is beyond the reasonable control of Landlord; provided that, if any
such interruption of services causes the Leased Premises (or any part thereof)
to be untenantable for a period of five (5) business days, Rent shall be abated
proportionately'.
6. INDEMNIFICATION AND INSURANCE
A. Landlord shall not be liable to Tenant, and Tenant hereby waives
all claims against Landlord for any injury to or death of any person or damage
to any property (i) occurring in, on, or about the Leased Premises by or from
any cause
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whatsoever, whether or not such injury, death, or damage may be caused in part
by the passive negligence or fault of Landlord, its employees, agents, or
contractors, and excepting in all cases any such injury, death, or damage to the
extent caused by the sole or active negligence or willful misconduct of
Landlord, its employees, agents, or contractors, or (ii) occurring in, on, or
about the Improved Area by reason of any act or omission or any active, passive,
or concurrent negligence or fault of Tenant.
B. In addition to Tenant's obligations under Paragraphs 6D and 6F
below, except to the extent covered by any policies of insurance maintained, or
required hereby to be maintained, by Landlord (which policies shall, pursuant
to Paragraph 6F(iii) below, be secondary to the insurance coverages carried by
Tenant), Tenant agrees to indemnify, protect, and hold harmless Landlord, from
and against any and all claims or liability for any injury to or death of any
person (including employees of Tenant and Landlord) or damage to any property
(including property belonging to Tenant and Landlord) whatsoever (i) occurring
in, on, or about the Leased Premises; or any part thereof, from any cause
whatsoever, whether or not such injury, death, or damage may be caused in part
by the passive negligence or fault of Landlord, its employees, agents, or
contractors, and excepting in all cases any such injury, death, or damage to the
extent caused by the sole or active negligence or willful misconduct of
Landlord, its employees, agents, or contractors, or (ii) occurring in, on, or
about the Improved Area by reason of any act or omission or any active, passive,
or concurrent negligence or fault of Tenant. The obligations of Tenant set forth
in this Paragraph 6B shall survive termination of this Lease by expiration of
the Lease Term or otherwise for a period of one year.
C. Tenant shall, at its sole cost and expense, obtain and keep in
force during the Lease Term, fire and extended coverage insurance on Tenant's
improvements; fixtures, furnishings, and equipment in and upon the Leased
Premises or Building in an amount not less than one hundred percent (100%) of
the full replacement cost (without deduction for depreciation) thereof. All
amounts received from said insurance for any damage to or destruction of any of
the improvements in the Leased Premises shall be applied to the payment of the
cost of repair or replacement of such improvements (and the balance shall be
retained by Tenant), unless this Lease terminates prior to such repair or
replacement being made, in which case the portion of such amounts representing
damage to any such improvements which would have become Landlord's property
pursuant to Paragraph 10 hereof shall be paid over to Landlord, and the balance
shall be retained by Tenant.
D. Without in any way limiting Tenant's liability pursuant to
Paragraph 6B above, Tenant shall, at its sole cost and expense, obtain and keep
in force during the term of this Lease comprehensive general liability insurance
(bodily injury and property damage) with a limit of liability not less than one
million dollars ($1,000,000) per occurrence and with the following supplementary
coverages: (a) personal injury liability with the "employee" and "contractual"
exclusions deleted;
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and (b) broad form property damage liability. Landlord shall have the right, at
any time or from time to time, upon reasonable prior written notice to Tenant,
to require Tenant to make reasonable adjustments to the amount of insurance
required hereunder to reflect increases in the Consumer Price Index as published
by the U.S. Department of Commerce, and/or to modify its form.
E. During the Lease Term, Landlord shall insure the Building,
excluding any property which Tenant is obligated to insure, against damage by
fire and standard extended coverage perils and Landlord shall maintain
comprehensive general liability insurance in such amounts and with such
deductibles as are from time to time generally accepted as commercially
reasonable for first class office buildings in the Denver metropolitan area;
provided, however, that Landlord shall have the tight, at its election, to
maintain all or any part of such insurance under the Chevron Self-Administered
Claims Adjustment Program described in Exhibit L attached hereto. Landlord may,
but shall not be obligated to, takeout and carry any other form or forms of
insurance as it or Landlord's mortgagees may reasonably determine advisable.
Notwithstanding any contribution by, Tenant to the cost of insurance premiums,
as provided herein, Tenant acknowledges that it has no right to receive any
proceeds from any such insurance policies carried by, Landlord. Landlord will
not have to carry insurance of any kind on Tenant's furniture or furnishings, or
on any of Tenant's fixtures, equipment, improvements, or appurtenances under
this Lease.
F. All insurance required under this Paragraph 6 and all renewals
thereof shall be issued by such responsible companies qualified to do and doing
business in the State of Colorado as may be approved by Landlord. Each policy
required hereunder to be carried by Tenant (i) shall expressly provide' that the
policy shall not be cancelled or materially altered without thirty (30) days'
prior written notice to Landlord, (ii) shall name Landlord as an additional
insured, (iii) shall be primary and noncontributing with any insurance which may
be carried by Landlord, and (iv)shall expressly provide that Landlord, although
named as an additional insured, shall nevertheless be entitled to recover
against Tenant under the policy for any loss; injury or damage to Landlord, its
employees and contractors, and shall contain a standard "cross liability" or
"severability of interest" clause.
Upon the issuance thereof, Tenant shall cause a certificate of the insurance
coverages maintained by Tenant hereunder to be delivered to Landlord.
7. WAIVER OF SUBROGATION
Tenant hereby waives, for itself and on behalf of its insurers under all
policies of fire, theft, public liability, workers' compensation, and other
insurance now or hereafter existing during the Lease Term and purchased by or
for Tenant insuring or covering the Leased Premises, or any portion or any
contents thereof, or any
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operations therein, or the Building, all rights of subrogation which any insurer
might otherwise have to any claims of Tenant against Landlord. Landlord hereby
waives, for itself and on behalf of its insurers under all policies of fire,
theft, public liability, workers' compensation, and other insurance now or
hereafter existing during the Lease Term and purchased by or for Landlord
insuring or covering the Improved Area or the Building or any portion or the
contents thereof, or any operations therein, all rights of subrogation which any
insurer might otherwise have to any claims of Landlord against Tenant. Landlord
and Tenant shall each, prior to or immediately after the execution of this
Lease, procure from each of such insurers a waiver of all rights of subrogation
which the insurer might otherwise have as against the other. This Paragraph 7
shall not be construed to require Landlord or Tenant to obtain any insurance
coverage not otherwise required by this Lease nor to waive any rights of
recovery that either Landlord or Tenant may have directly against the other to
the extent that any loss or damage giving rise to any such right of recovery is
not actually covered by insurance.
8. REPAIRS
Except for services provided by Landlord, Tenant shall maintain in a
clean, orderly, and sanitary condition and keep in good repair, the interior of
the Leased Premises, ordinary wear and tear and damage by fire or other casualty
excepted. Such maintenance and repair shall be at the sole cost of Tenant and
shall include but not be limited to the maintenance and repair of floor
covering, ceilings, and walls, front and rear doors, and all interior glass on
the Leased Premises. If Tenant fails to maintain or keep the Leased Premises in
good repair and such failure continues for thirty (30) days after written notice
from Landlord, Landlord may perform any such required maintenance and repairs
and the cost thereof shall be additional Rent payable by Tenant within ten (10)
days of receipt of any invoice therefor from Landlord.
9. TENANT'S PROPERTY
All furnishings, trade fixtures, and moveable equipment, including,
without limitation, the secretarial work stations installed in the Leased
Premises by Tenant, paid for and installed by Tenant, shall be the property of
Tenant. Upon expiration of this Lease, Tenant may remove any such property and
shall remove any such property if directed by Landlord. Tenant shall repair, or
reimburse Landlord for the cost of repairing, any damage resulting from removal
of Tenant's property. If Tenant fails to remove such property as required under
this Lease, Tenant shall be deemed to have abandoned all interest in any such
property remaining or then in or upon the Leased Premises and Landlord may
remove the same as its own property and dispose of such property as it desires
without liability to Tenant.
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10. IMPROVEMENTS AND ALTERATIONS BY TENANT
Tenant may make such additional improvements or alterations to the
Leased Premises as it deems necessary or desirable, but only with Landlord's
prior written approval (which approval shall not be unreasonably withheld). Any
such improvements or alterations by Tenant shall be at Tenant's expense and
shall be done by a licensed contractor approved by Landlord in conformity with
plans and specifications approved by Landlord, which approvals shall not be
unreasonably withheld. If requested by, Landlord, Tenant will post a bond or
provide other security reasonably satisfactory to Landlord to protect Landlord
against liens arising from work performed for Tenant. All work performed shall
be done in a good and workmanlike manner, in accordance with applicable law, and
with materials (where not specifically described in the specifications) of the
quality and appearance comparable to those in the Building. Prior to the
commencement of any work or delivery of any materials to the Leased Premises,
Tenant shall furnish Landlord, for its approval (which approval shall not be
unreasonably withheld), copies of the following:
(a) Plans and specifications,
(b) Names and addresses of contractors,
(c) Copies of contracts, and
(d) Necessary permits.
Unless otherwise agreed in writing between the parties at the time of
Landlord's approval of any alterations, all alterations, fixtures (except trade
fixtures, including the secretarial workstations installed in the Leased
Premises by Tenant) and improvements, including those made or installed in or
upon the Leased Premises by or for Tenant, shall immediately become Landlord's
property and, at the end of the Lease Term, shall remain on the Leased Premises
without compensation to Tenant.
11. CASUALTY
If the Leased Premises or the Building are destroyed or damaged by
fire, earthquake, or other casualty to the extent that the Leased Premises are
untenantable in whole or in part, then Landlord shall, except as provided
below, proceed with reasonable diligence to rebuild and restore the Leased
Premises or such part thereof as may be destroyed or damaged, and during the
period of such rebuilding and restoration, this Lease shall remain in full force
and effect, and Rent shall be abated in the same ratio as the square footage in
the portion of the Leased Premises rendered untenantable, if any, shall bear to
the total square footage in the Leased Premises.
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If Landlord shall reasonably determine that such destruction or damage cannot be
rebuilt and restored within one-hundred-eighty (180) days of the occurrence, it
shall so notify Tenant within sixty (60) days after the occurrence of such
damage or destruction. In such event, either Landlord or Tenant may, within
twenty (20) days after such notice, terminate this Lease as of the date of such
casualty. If neither party terminates this Lease during such twenty (20) day
period, this Lease shall remain in effect and Landlord shall diligently proceed
to rebuild and restore the Leased Premises, and Rent shall xxxxx as set forth
above. Anything in this Lease to the contrary notwithstanding, in the event the
Leased Premises are rendered untenantable due to the fault or neglect of Tenant,
its agents, employees, invitees, or licensees, there shall be no abatement of
Rent under this Paragraph 11.
12. ASSIGNMENT, LETTING AND SUBLETTING
A. Tenant, its legal representatives and successors in interest,
shall have no right to assign, let, or sublet or permit assigning, letting or
subletting of this Lease, the Leased Premises or any part thereof, respectively,
without first obtaining the written consent of Landlord, which consent shall not
be unreasonably withheld; provided that Tenant shall have the right, without
obtaining Landlord's prior consent, to sublease or assign this Lease, or all or
any portion of the Leased Premises, at any time and from time to time to any
entity which controls, is controlled by, or is under common control with Tenant,
or any successor to Tenant by merger, consolidation, or reorganization, or any
person or entity which purchases all or any substantial portion of the assets of
Tenant (which entities are referred to herein collectively as the "Tenant
Affiliates"). Any consent of Landlord required hereby, unless specifically
stated therein, shall not relieve Tenant from its obligations under this Lease,
and a consent by Landlord to any one assignment or subletting shall not
constitute a consent to any other or subsequent assignment or subletting.
B. In addition to any other reasonable basis, Landlord shall be
deemed to be acting reasonably in withholding its consent to any such assignment
or subletting, if such assignment or subletting would result in the assignment,
leasing or subleasing of the Leased Premises to any person or entity:
(1) who proposes to conduct a business therein which is not
in conformance with the provisions of Paragraph 2 hereof; or
(2) whose business is of a character which is not, in
Landlord's reasonable opinion, consistent with the character of the Building.
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C. Tenant shall provide Landlord with a copy of any assignment of
this Lease or any sublease of the Leased Premises and a copy of any document
pursuant to which any such assignment or sublease may be made. Except in the
event of any assignment or sublease to or with any Tenant Affiliate, Tenant
shall pay or deliver over to Landlord, as additional Rent hereunder, an amount
equal to one-half of any consideration received by Tenant in respect of any
such assignment or sublease (after deduction for all reasonable costs and
expenses incurred by Tenant in connection with such assignment or subletting,
including, without limitation, leasing commissions, tenant improvement costs,
marketing costs, lease takeover obligations, rent concessions and other
concessions or incentives, and all similar costs, and all Rent accruing
hereunder during the period of time that Tenant is marketing the Leased Premises
for such assignment or subletting) in excess of the Rent due under this Lease
attributable to such portion of the Leased Premises covered by such or
sublease.
13. LIENS AND INSOLVENCY
Tenant shall keep the Leased Premises, the Building, and the improved
Area free from any liens arising out of any work performed, materials furnished,
or obligations incurred by Tenant.
14. CONDEMNATION
If all or any part of the Leased Premises are taken under power of
eminent domain or like power, or sold under imminent threat thereof to any
public authority or private entity having such power, this Lease shall terminate
as to the part of the Leased Premises so taken or sold, effective as of the date
possession is required to be delivered to such authority or entity. Rent for the
remaining Lease Term shall be reduced in the proportion that the Tenant's Total
Square Footage is reduced by the taking. If a partial taking or sale of the
Building or the Leased Premises (i) substantially reduces the area of the Leased
Premises resulting in a substantial inability of Tenant to use the Leased
Premises for Tenant's business purposes, or (ii) renders the Building unviable
to Landlord, Tenant, in the case of (i), or Landlord, in the case of (ii), may
terminate this Lease by written notice delivered to the other party within
thirty (30) days after the terminating party receives notice of the portion to
be taken or sold, such termination to be effective one-hundred-eighty (180) days
thereafter, or when the portion, is taken or sold, whichever is sooner. All
condemnation awards and similar payments shall be paid and belong to Landlord,
except any amounts awarded or paid specifically for Tenant's furnishings, trade
fixtures, and other personal property, the value of Tenant's leasehold interest
in the Building hereunder, any loss of business and business interruption costs,
and all relocation costs; provided that in no event shall any such awards to
Tenant be
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permitted to have the effect of reducing Landlord"s award. Nothing contained
herein shall diminish Tenant's right to deal on its own behalf with the
condemning authority.
15. CONSTRUCTION CONDITIONS
A. Tenant shall construct the Leasehold Improvements to the Leased
Premises pursuant to the Work Agreement (Exhibit C).
B. To the extent that any term or provision of this Lease conflicts
with the Work Agreement, the Work Agreement shall control.
16. OCCUPANCY, LEASE COMMENCEMENT DATE
As used, herein, the "Lease Commencement Date" shall mean the later of
(i) the Scheduled Commencement Date, or (ii) that date Which is determined by
adding to the Scheduled Commencement Date the number of days that Substantial
Completion of the Leasehold Improvements is delayed due solely to a Landlord
Delay (as defined in the Work Agreement) or due to any other cause which is in
the nature of an Unavoidable Delay as defined in Paragraph 23C. If the Lease
Commencement Date has not occurred on or before one hundred and twenty (120)
days following the Scheduled Commencement Date, Tenant shall have the right to
terminate this Lease by written notice given to Landlord at any time prior to
Substantial Completion of the Leasehold Improvements. Prior to occupying the
Leased Premises, Landlord and Tenant shall execute and deliver a letter in the
form attached hereto as Exhibit E, acknowledging the Lease Commencement Date. If
either Landlord or Tenant fails to deliver such letter, the date of Substantial
Completion of the Leased Premises shall be deemed to be the Scheduled
Commencement Date.
If Tenant commences the regular conduct of its business in any part of
the Leased Premises prior to Lease Commencement Date, Tenant shall pay to
Landlord rent for each day prior to the Lease Commencement Date, calculated on
the basis of the per diem Rent which would be due to Landlord from Tenant if the
Lease Term had commenced for the portion of the Leased Premises occupied by
Tenant for such purpose.
17. RULES AND REGULATIONS
Tenant covenants that Tenant and its agents, employees, invitees, or
those claiming under Tenant, will at all times observe, perform, and abide by
all reasonable rules and regulations promulgated by Landlord, from time to time
upon receipt of written notice thereof, as long as such rules and regulations do
not conflict
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with, or unreasonably modify, any provision of this Lease and are generally
applicable to all tenants in the Building. Landlord's rules and regulations in
effect on the date hereof are attached hereto as Exhibit F. All such rules and
regulations shall be interpreted and enforced by Landlord in a consistent manner
as to Tenant and all other tenants in the Building.
18. PARKING
Landlord shall provide to Tenant non-exclusive parking within the
Parking Garage contiguous to the Building at a ratio of one space for each 330
rentable square feet contained from time to time within the Leased Premises
(including any additional space taken by Tenant pursuant to Paragraph 45 or
Paragraph 46 hereof) (the "Regular Spaces"), and an additional 81 short-term
parking spaces in close proximity to the elevators, which shall be available for
use by Tenant's visitors at no cost for up to two hours. The Regular Spaces
(which, as of the Commencement Date, shall be 168 spaces) will be provided by
Landlord for use by the Tenant at a charge of _________ per space per month
during the first sixty (60) months Of the Lease Term and _________ per space per
month during months 61 through 120. Subject to Landlord's rules and regulations
adopted from time to time pursuant to Paragraph 17, Tenant's employees, invitees
and licensees shall be entitled to reasonable use of such parking spaces.
19. ACCESS
Landlord, or Landlord's employees, agents, or contractors; may enter the
Leased Premises at reasonable times for the purpose of inspecting, altering or
repairing the Leased Premises or other portions of the Building and for the
purpose of ascertaining compliance by Tenant with the provisions of this Lease.
Landlord may also show the Leased Premises to prospective purchasers or lenders
(or, during the last B months of the Lease Term, to prospective renters) during
regular business hours and upon reasonable prior notice. Landlord's entry shall
not unreasonably interfere with Tenant's business operations or with Tenant's
use and occupancy of the Leased Premises. Landlord shall repair, at Landlord's
expense, any damage to the Leased Premises resulting from the exercise of the
foregoing rights by Landlord or Landlord's employees, agents, or contractors.
20. SIGNS
All signs and symbols placed on the doors or windows or elsewhere about
the Leased Premises, or upon any other part of the Building, including building
directories, shall be subject to the approval of Landlord, which approval shall
not be
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unreasonably withheld. Tenant shall have no right to place signs outside the
Building and within the Improved Area. Tenant shall be entitled to place signs
within the interior of the Leased Premises without having first obtained
Landlord's approval. Upon expiration of this Lease, all signs installed by
Tenant shall be removed and any damage resulting therefrom shall be promptly
repaired, or such removal and repair may be done by Landlord and the cost
thereof charged to Tenant as additional Rent hereunder. Landlord shall, at
Landlord's expense, provide space to Tenant for 16 names on the main directory
board located in the lobby of the Building, which names may be designated from
time to time by Tenant. Additionally, Landlord shall include Tenant's company
name on the group and alphabetical listings on such directory board.
21. TENANT'S DEFAULT
It shall be an "Event of Default" if (i) Tenant fails to pay Rent or any
other charge or payment required of Tenant hereunder when due and such failure
continues for ten (10) days after written notice thereof to Tenant by Landlord;
(ii) Tenant violates or fails to perform any of the other conditions, covenants,
or agreements herein made by Tenant, and such violation or failure continues for
fifteen (15) days after written notice thereof to Tenant by Landlord; (iii)
Tenant makes a general assignment for the benefit of its creditors or files a
petition for bankruptcy or other reorganization, liquidation, dissolution, or
similar relief; (iv) a proceeding is filed against Tenant seeking any relief
mentioned in (iii) above which is not dismissed within sixty (60) days after
Tenant receives notice of such proceeding; (v) a trustee, receiver, or
liquidator is appointed for Tenant or a substantial part of its property; (vi)
Tenant's interest under this Lease is taken upon execution or by other process
of law directed against Tenant or shall be made subject to any attachment by or
on behalf of any creditor of Tenant; or (viii) Tenant mortgages, assigns (except
as expressly permitted in this Lease) or otherwise encumbers Tenant's interest
under this Lease.
If an Event of Default occurs, Landlord may: (i) without obligation to
do so and without releasing Tenant from any obligation under this Lease, make
any payment or take any action Landlord may deem necessary or desirable to cure
such Event of Default, and the cost thereof shall be reimbursed by Tenant to
Landlord within ten (10) days after demand; (ii) terminate this Lease by written
notice to Tenant as of the date such notice is given or as of any other date
specified in such notice; (iii) with or without terminating this Lease, reenter
and take possession of the Leased Premises by legal proceedings; (iv) with or
without terminating this Lease, if Tenant has abandoned the Leased Premises,
reenter and take possession of the Leased Premises, or any part thereof, end
remove the effects therein without liability for any damages thereto and without
being deemed guilty of any manner of trespass and without prejudice to any other
remedies of Landlord hereunder; and (iv) exercise any other legal remedy,
including, without limitation, any applicable equitable
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remedies, on account of such Event of Default. All remedies of Landlord under
this Lease shall be cumulative, and the exercise of any of such remedies shall
not prevent the concurrent or subsequent exercise of any other remedy.
Should Landlord elect to reenter or take possession of the Leased
Premises pursuant to legal proceedings or otherwise, Landlord shall, from time
to time, without terminating this Lease, use reasonable efforts to relet the
Leased Premises or any part thereof on behalf of Tenant for such term or terms
and at such rent or rents, and upon such other terms and conditions, as Landlord
may deem reasonably advisable (including, without limitation, giving any
concessions, free rent, and any other concessions which may be reasonably
necessary under the circumstances), with the right to make alterations and
repairs to the Leased Premises. No such reentry or taking of possession of the
Leased Premises by Landlord shall be construed as an election on Landlord's pact
to terminate this Lease, unless a written notice of termination is given to
Tenant by Landlord, nor shall it preclude landlord from terminating this Lease
at a later time by giving written notice to Tenant.
If Landlord elects to take possession without terminating this Lease,
then such repossession shall not relieve Tenant of its obligations and
liabilities under this Lease, all of which shall survive such repossession. In
the event of such repossession, Tenant shall pay to Landlord, as rent, all Rent
which would be payable hereunder if such repossession had not occurred, less the
net proceeds, if any, of any reletting of the Leased Premises, after deducting
all of Landlord's reasonable expenses in connection with such reletting and any
reasonable rental concessions. Tenant shall pay such Rent to Landlord on the
days on which such Rent would have been payable hereunder if possession had not
been retaken.
If, however, this Lease is terminated by Landlord, Landlord shall be
entitled to recover as damages from Tenant, in addition to all other damage
suffered by Landlord on account of any Event of Default, the sum of (i) the
present Value of all of the Rent which would have been due for the remainder of
the Lease Term had this Lease not been terminated, plus all of Landlord's costs
of reletting the Leased Premises, including repair, alteration, and preparation
of the Leased Premises for reletting, brokerage commissions, attorneys' fees,
and rental concessions. Said amount shall be immediately due and payable by
Tenant to Landlord, minus (ii) the present value of the fair rental value of the
Leased Premises from the effective date of such termination through the date on
which the Lease Term would have expired had the Lease not been terminated. Any
amount due to Landlord hereunder may be collected after termination. For
purposes of calculating present values under this Paragraph 21, the applicable
discount rate shall be equal to the sum of 2% plus the prime lending rate in
effect as of the date of the Event of Default as quoted in the Wall Street
Journal (the "WSJ"), or, if the WSJ ceases to be published, a similar national
daily business publication identified by Landlord.
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22. PERSONAL PROPERTY LIEN
[Intentionally omitted].
23. QUIET ENJOYMENT; INABILITY TO PERFORM
A. If, and so long as, Tenant pays Rent and keeps and performs each
and every term, covenant, and condition herein contained on the part and on
behalf of Tenant to be kept and performed, Tenant shall quietly enjoy the Leased
Premises without hindrance or molestation by Landlord, subject to the terms,
covenants, and conditions of this Lease.
B. Landlord shall pay all Taxes so as not to jeopardize Tenant's
use or the Leased Premises. The foregoing notwithstanding, Landlord shall be
entitled to contest any tax or assessment which it deems to be improperly levied
against the Improved Area, or any part thereof, so long as Tenant's use of the
Leased Premises is not interfered with.
C. Except as otherwise provided in Paragraphs 4, 5, 11, and 16 of
this Lease, this Lease and the obligations of Tenant to pay Rent and perform all
of the terms, covenants, and conditions on the part of Tenant to be performed
shall in no way be affected, impaired, or excused because Landlord, due to an
Unavoidable Delay, is (a) unable to fulfill any of its obligations under this
Lease, or (b) unable to supply or is, delayed in supplying any service expressly
or impliedly to be supplied, or (c) unable to make or delayed in making any
repairs, replacements, additions, alterations, or decorations, or (d) unable to
supply or is delayed in supplying any equipment or fixtures. Landlord shall in
each instance exercise reasonable diligence to effect performance when and as
soon as possible. 'Unavoidable Delay' shall mean any and all delays beyond
Landlord's reasonable control, including without limitation, to the extent they
affect Landlord's ability to perform, delay caused by any Event of Default
hereunder by Tenant, governmental restrictions, governmental regulations or
controls, undue delays by governmental authorities, order of civil, military, or
naval authority, governmental preemption, strikes, labor disputes, lockouts,
shortage of labor or materials, inability to obtain materials or reasonable
substitutes therefor, default of any contractor or subcontractor, acts of God,
fire, earthquake, floods, explosions, extraordinary actions of the elements,
extreme weather conditions, enemy action, civil commotion, Hot, or insurrection,
delays in obtaining governmental permits or approvals for which Landlord has
made diligent, timely, and appropriate application, and any other cause beyond
Landlord's reasonable control.
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24. HOLD OVER TENANCY
If (without execution of a new lease or written extension) Tenant shall
hold over after the expiration of the Lease Term, Tenant shall be deemed to be
occupying the Leased Premises as a tenant from month to month, which tenancy may
be terminated as provided by law. During such tenancy, Tenant agrees to pay to
Landlord monthly installments of the Tenant's Pro Rata Share of Operating Costs
in excess of the Base Operating Costs and 150% of the then current Base Rent, as
set forth herein, unless a different rate is agreed upon, and to be bound by all
of the terms, covenants, and conditions as herein specified, so far as
applicable. The foregoing notwithstanding, in the event Landlord and Tenant are
negotiating in good faith over the extension of the Lease Term, Tenant, for a
period not to exceed sixty (60) days following the expiration of the Lease Term,
shall pay Rent at the same rate as was in effect immediately prior to such
expiration. At the and of such Sixty (60) day period, Tenant shall be deemed to
be occupying the Leased Premises as a tenant from month to month and Tenant
shall pay to Landlord, for such tenancy, monthly installments of the Tenant's
Pro Rata Share of Operating Costs in excess of the Base Operating Costs, all
other charges provided for in this Lease, and 200% of the then current Base Rent
until Tenant's occupancy is terminated.
25. ATTORNEYS' FEES
In the event either party requires the services of any attorney in
connection with enforcing the terms of this Lease, or in the event suit is
brought for the recovery of any Rent due under this Lease, or for the breach of
any covenant or condition of this Lease, or for the restitution of the Leased
Premises to Landlord and/or eviction of Tenant during the Lease Term, or after
the expiration thereof, the party prevailing in any such legal action shall be
entitled to an award for all legal costs and expenses, including, but not
limited to, a reasonable sum for attorney's fees
28. AMENDMENT, WAIVER
This Lease constitutes the entire agreement between the parties. This
Lease shall not be amended or modified except in writing by both parties. No
covenant or term of this Lease shall be waived except with the express written
consent of the waiving party whose forbearance or indulgence in any regard shall
not constitute a waiver of such covenant or term. Failure to exercise any right
in one or more instances shall not be construed as a waiver of the right to
strict performance or as an amendment to this Lease.
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27. NOTICES
All notices required or permitted by this Lease shall be in writing,
sealed in an envelope and delivered in person, by a nationally recognized
overnight courier service, or by United States Registered or Certified Mail,
return receipt requested, postage prepaid, to the address specified below:
If intended for Landlord:
HUNTINGTON BEACH COMPANY
c/o Chevron Real Estate Management Company
6400 So. Xxxxxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
with a copy to:
Leasing Manager
Chevron Real Estate Management Company
0000 XxXxxxxx, Xxxx 000
Xxxxxxx, XX 00000
If intended for Tenant:
Echo Bay Management Corp.
0000 Xxxxx Xxxxxxx'x Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, XX 00000
Attention: Senior Vice President for Finance
or to such other address(es) as either party designates by notice, as provided
in this Paragraph 27, to the other party, from time to time. Notice shall be
effective as of the date that such notice is actually received or the date
delivery is rejected by any representative of the addressee.
28. BINDING EFFECT, GENDER
Subject to the provisions in Paragraph 12, this Lease shall be binding
upon and inure to the benefit of the parties and their successors and assigns.
It is understood and agreed that the terms "Landlord" and "Tenant" and verbs
and pronouns in the singular number are uniformly used throughout this Lease
regardless of gender, number, or fact of incorporation of the parties hereto.
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29. ADDENDA AND ATTACHMENTS
The addenda, exhibits, or supplemental provisions, if any, attached or
added hereto, are made a part of this Lease by reference.
30. LIMITATION OF LIABILITY
The obligations of Landlord under this Lease do not constitute personal
obligations of the individual partners, directors, officers, or shareholders of
Landlord, and Tenant shall look solely to the Improved Area and the revenues and
proceeds therefrom and to no other assets of the Landlord for satisfaction of
any liability in respect of this Lease and will not seek recourse against the
individual partners, directors, officers, or shareholders of Landlord or any of
their personal assets for such satisfaction or for any deficiency judgement
should Tenant be unable to satisfy any liability owed to it.
The obligations of Tenant under this Lease do not constitute personal
obligations of the individual partners, directors, officers, or shareholders of
Tenant, and Landlord shall look solely to the assets of Tenant for satisfaction
of any liability in respect of this Lease and will not seek recourse against the
individual partners, directors, officers, or shareholders of Tenant or any of
their personal assets for such satisfaction or for any deficiency judgment
should Landlord be unable to satisfy any liability owed to it.
31. LANDLORD'S RESERVED RIGHTS
Without notice and without liability to Tenant, Landlord shall have the
right to:
(1) Change (i) the name of the Building, but in no event
shall the name of the Building (or any other building constructed on the
Improved Area be changed to that of another mining company so long as Tenant
occupies 35,000 rentable square feet or more in the Building, and (ii) the
street address of the Building if required to do so by an appropriate authority;
(2) Install and maintain reasonable signs on the exterior of
the Building;
(3) Make reasonable rules and regulations as, in the
judgment of Landlord, may from time to time be needed for the safety of the
tenants, and the care
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and cleanliness of the Building and the preservation of good order therein.
Tenant shall be notified in writing when each such rule and regulation is
promulgated;
(4) Grant utility easements or other easements to such
parties, or replat, subdivide, or make such other changes in the legal status of
the land underlying the Improved Area, as Landlord deems necessary, provided
such grant or changes do not substantially or materially interfere with Tenant's
use of the Leased Premises as intended under this Lease; and
(5) Sell the Building and assign this Lease to the
purchaser, and upon such assignment, Landlord shall be deemed to be released
from all obligations of Landlord under this Lease arising or accruing from and
after the date of such assignment, and such purchaser shall be deemed to have
assumed all such obligations arising or accruing from and after such date.
Tenant agrees to attorn to such purchaser, or any other successor or assign of
Landlord through foreclosure or deed in lieu of foreclosure or otherwise and to
recognize such person as Landlord under this Lease, as provided more fully in
Paragraph 35 below.
32. OFFSET STATEMENT
Within twenty (20) days after request therefor by Landlord, its agents,
successors, or assigns, Tenant shall deliver, in recordable form, a certificate
to any proposed mortgagee or purchaser, or to Landlord, together with a true and
correct copy of this Lease, certifying, if applicable, and making such changes
as may be necessary to make the matters certified accurate, the matters set
forth on Exhibit H attached hereto. Tenant's failure to deliver said statement
in time shall be conclusive upon Tenant; (a) that this Lease is in full force
and effect, without modification except as may be represented by Landlord, (b)
that there are no uncured defaults in Landlord's performance and Tenant has no
right of offset, counterclaims, defenses, or deductions against Rent or Landlord
hereunder; and (c) that no more than one month's Rent has been paid in advance.
33. ACCORD AND SATISFACTION
No receipt and retention by Landlord of any payment tendered by Tenant
in connection with this Lease will give rise to, or support, or constitute an
accord and satisfaction, notwithstanding any accompanying statement, instruction
or other assertion to the contrary (whether by notation on a check or in a
transmittal letter or otherwise), unless Landlord expressly agrees to an accord
and satisfaction in a separate writing duly executed by an authorized
representative of Landlord. Landlord may receive and retain, absolutely and for
itself, any and all payments so tendered, notwithstanding any accompanying
instructions by Tenant to the contrary. Landlord
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will be entitled to treat any such payments as being received on account of any
item or items or Rent, interest, expenses, or damage due in connection herewith
in such amounts and in such order as Landlord may determine at it's sole option.
34. SEVERABILITY
The parties intend this Lease to be legally valid and enforceable in
accordance with all of its terms to the fullest extent permitted by law. If any
term hereof shall be finally held to be invalid or unenforceable, the parties
agree that such term shall be stricken from this Lease, the same as if it never
had been contained herein. Such invalidity or unenforceability shall not extend
to or otherwise affect any other term of this Lease, and the unaffected terms
hereof shall remain in full force and effect to the fullest extent permitted by
law, the same as if such stricken term never had been contained herein.
35. SUBORDINATION
The rights of Tenant hereunder are, and shall be, at the election of any
mortgagee, subject and subordinate to the lien of any deeds Of trust, mortgages,
the encumbrance of any leasehold financing, or the lien resulting from any other
method of financing or refinancing, now or hereafter in force against the
Improved Area or the Building, and to all advances made, or hereafter to be
made upon the security thereof (herein referred to as the "Superior
instruments"). Landlord hereby represents and warrants to Tenant that there are
no Superior Instruments presently executed which include any portion of the
Improved Area. The foregoing notwithstanding, for any Superior Instruments
executed by Landlord after the execution of this Lease, the rights of Tenant
under this Lease shall not be subject or subordinated to such liens or Superior
instruments unless and until the holders thereof execute a non-disturbance
agreement in form and substance similar to the Attornment and Nondisturbance
Agreement attached hereto as Exhibit G, or in any other form reasonably
acceptable to Tenant.
Tenant agrees to attorn to any purchaser of the Building, or any other
successor or assign of Landlord through foreclosure or deed in lieu of
foreclosure, in return for and upon delivery to Tenant by such purchaser or
mortgagee, as the case may be, of an agreement substantially in the form of the
Attornment and Nondisturbance Agreement, or in any other form reasonably
acceptable to Tenant.
36. TIME
Time is of the essence hereof.
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37. APPLICABLE LAW
This, Lease shall be construed according to any and all applicable
federal laws and the laws of the State of Colorado, without regard to the
principles of conflicts of law and venue shall be in Arapahoe County, Colorado.
38. BROKER'S INDEMNIFICATION
Tenant hereby represents and warrants to Landlord that no broker or
agent negotiated or was instrumental in the negotiation or consummation of this
Lease except the Landlord's Broker and the Tenant's Broker. Tenant shall
indemnify Landlord against any loss, expense, cost, or liability incurred by
Landlord as a result of any claims for fees or commissions by any broker or
finder claiming through Tenant, except for any such claims by the Landlord's
Broker and any such claims by the Tenant's Broker. Landlord hereby represents
and warrants to Tenant that no broker or agent negotiated or was instrumental in
the negotiation or consummation of this Lease except the Landlord's Broker and
the Tenant's Broker. Landlord shall indemnify Tenant against any loss, expense,
cost, or liability incurred by Tenant as a result of any claims for fees or
commissions by any broker or finder claiming through Landlord, including,
without limitation, any such claims by the Landlord's Broker and any such claims
by the Tenant's Broker.
39. SECURITY DEPOSIT
[Intentionally Omitted]
40. CONFLICTS OF INTEREST
Conflicts of interest relating to this Lease are strictly prohibited.
Except as otherwise expressly provided herein with regard to Tenant's Broker,
neither Tenant nor any director, employee, or agent of Tenant, shall give to or
receive from any director, employee, or agent of Landlord any gift,
entertainment, or other favor of significant value, or any commission, fee, or
rebate. Likewise, neither Tenant nor any director, employee, or agent of Tenant
shall enter into any business relationship with any director, employee, or agent
of Landlord or of any affiliate of Landlord, unless such person is acting for
and on behalf of Landlord or such affiliate, without prior written notification
thereof to Landlord. Any representative(s) authorized by Landlord may audit any
and all records of Tenant for the sole purpose of determining whether there has
been a violation of the terms of this Paragraph 40. The terms of this
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Paragraph 40 shall not survive any transfer by Landlord of its interest in the
Improved Area to any unaffiliated third party.
41. TENANT REPRESENTATIONS
If Tenant is a legal entity, Tenant hereby represents and warrants to
Landlord that (i) such entity is duly organized and validly existing under the
laws of the state of its formation and is qualified to do business in, and is in
good standing under, the laws of the State of Colorado; and (ii) this Lease and
all documents executed or to be executed by Tenant in connection herewith and
which are to be delivered to Landlord will be duly authorized, executed, and
delivered and will be legal, valid, and binding obligations of Tenant, and do
not violate any provisions of any agreement or currently existing judicial order
to which Tenant is a party or to which it is subject. Further, if requested by
Landlord, either prior to or after Landlord's execution of this Lease, Tenant
shall provide Landlord with certified evidence of the foregoing.
42. ESTOPPEL CERTIFICATE
[Intentionally Omitted].
43. RIGHT TO RENEW
A. Tenant shall have the option to renew the Term of this lease for
two (2) successive periods of five (5) years each by notifying Landlord in
writing of Tenant's election to exercise its option at least twelve (12) months
prior to the expiration of the then current term or renewal term of this Lease.
Tenant may exercise such option provided there is not then any uncured default
by Tenant in the payment of any item of Rent hereunder and there is not then any
other material uncured default hereunder by Tenant. The Rent during each renewal
period shall be the then Fair Market Rental Value, as hereinafter defined, and
the lease shall be upon all other terms and provisions of this Lease.
B. As used in this Lease, the term Fair Market Rental Value
("FMRV") shall mean the rent calculated at the then prevailing rate on the same
terms and conditions for the renewal term set forth in this Lease for similar
space in comparable Class A office buildings in the Denver Tech Center/Greenwood
Plaza market areas. In making such determination, no allowance shall be made for
any of the following:
(1) Whether Landlord or Tenant paid the cost of providing
the existing improvements to the Premises.
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55
(2) The quality of the furniture or trade fixtures which
belong to Tenant and which Tenant is entitled to remove at the end of the Term.
(3) The expense and inconvenience to Tenant that would be
involved if Tenant were recruited to relocate to other space.
(4) The expense that Landlord would be required to incur to
find new tenants for the Premises.
(5) The presence of Tenant in the Building.
(6) The fact that Tenant has a renewal option.
C. FMRV shall be declared initially by Landlord in writing to
Tenant not less than ten (10) months prior to the end of the Lease Term. Tenant
shall have forty-five (45) days from the date of Landlord's declaration in which
to dispute, in writing, Landlord's finding of FMRV and to provide to Landlord
its written determination of FMRV. Failing such timely notice of dispute,
Landlord's declared FMRV shall be deemed to be acceptable by both parties. If
Tenant gives Landlord timely notice in dispute of Landlord's determination of
FMRV, then Landlord and Tenant shall each designate a licensed commercial real
estate broker who shall together designate a third licensed commercial real
estate broker, all of whom shall be experienced in evaluating rental properties
of the type and in the area of the Building. Within twenty (20) days of Tenant's
notice to Landlord, the third broker shall deliver to Tenant and Landlord its
written decision of the appropriate FMRV; provided that such broker's decision
shall be to accept either the FMRV determined by Landlord or the FMRV determined
by Tenant and such broker may not select an average of such determinations or
any other amount for the FMRV. Such determination shall be binding upon Landlord
and Tenant; provided that Tenant may, by written notice given to Landlord within
ten (10) days after Tenant's receipt of written notice of such broker's
determination of FMRV, revoke its notice to renew. All costs for the services of
the brokers selected by Landlord and Tenant and all costs for the services of
the third broker shall be paid by the party whose determination of FMRV was not
selected by the third broker as its FMRV.
44. RIGHT TO TERMINATE
Effective at any time and from time to time after the expiration of the sixtieth
(60th) month of the Lease Term, Tenant may elect to terminate this Lease as to
all or any portion of the Leased Premises which includes no less than all of
the space occupied by Tenant on any single floor of the Tower, provided there is
not then any uncured default by Tenant in the payment of any item of Rent
hereunder and there is not then any other material uncured default hereunder by
Tenant. In order to
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exercise such option, Tenant shall give Landlord not less than six (6) months
prior written notice of its intent to terminate as of the date specified in such
notice (which date shall not be prior to the last day of the sixtieth month of
the Lease Term) (the "Termination Date"). Such notice shall identify the
portions of the Leased Premises which will be affected by such termination.
Tenant shall pay to Landlord, as of the Termination Date, and as to the portion
of the Leased Premises affected by any, such termination, the sum of (i) the
unamortized portion of the Improvement Allowance paid by Landlord to Tenant in
accordance with Exhibit C, (ii) the unamortized portion of the Moving Allowance
paid by Landlord to Tenant in accordance with Exhibit C, (iii) the unamortized
portion of the Space Planning Allowance paid by Landlord to Tenant in accordance
with Exhibit C, (iv) the unamortized portion of the commissions paid by Landlord
to the Landlord's Broker and the Tenant's Broker, and (v) three month's Base
Rent for the portion of the Leased Promises affected by any such, termination.
As used herein, unamortized costs shall mean the amounts applicable to any
period of time after the Termination Date for the relevant costs if the entire
costs thereof were amortized on a straight line basis over the entire ten (10)
year initial Lease Term.
45. RIGHT OF FIRST REFUSAL
During the Lease Term, or any extension thereof, Tenant shall have a
right of first refusal on all of the remaining space on the ninth floor of the
Tower as and when such space, or any part thereof, becomes available to Landlord
(which space is hereinafter referred to as the 'Expansion Space').
Each time Landlord receives from or is going to give a bona fide offer
to an actual third party ("Third Party Offer"), to lease part or all of the
Expansion Space, and such Expansion Space is then available, and such offer is
acceptable to Landlord, Landlord shall first offer such Expansion Space to
Tenant in writing ("Landlord's Notice") on the same Business Terms as were
offered to or by the third party. Expansion Space shall be considered
"available" when it becomes vacant after the termination or expiration of the
current lease of such space between Landlord and Telemedia North American
Communications. 'Business Terms' are hereby defined as: effective base rental
rate (base rental rate with any rent concession factored in); operating cost
stop; tenant improvement allowance; the number of rentable square feet contained
in such Expansion Space; and any other material economic terms. Tenant shall
have 10 business days after receipt of Landlord's Notice to accept Landlord's
offer in writing. If Tenant does not elect to accept Landlord's offer or fails
to respond within the 10 business day period, landlord shall be free to lease
the Expansion Space to the third party on terms that are not materially more
favorable to the third party than the Business Terms that were contained in the
third party's bone fide offer. If Tenant accepts the offer to lease such
Expansion Space, such Expansion
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Space shall be leased by Tenant on the Business Terms offered to or by the third
party.
46. RIGHTS OF FIRST OFFER
A. Tenant shall have the right to lease any and all space on the
second through ninth floors of the Tower from time to time as and when portions
of such space become available to Landlord (which space is hereinafter referred
to as the "Offer Space"). As to any of the Offer Space which is now subject to
either an existing lease or any prior rights to lease, such Offer Space shall be
deemed to become available when such lease or such prior rights expire. Upon
the expiration of such lease or such rights, Landlord shall give written notice
thereof to Tenant (the "Offer Notice"), which notice shall set out the FMRV
which Landlord would at that time offer to other possible tenants of the Offer
Space.
B. Tenant shall have the right to lease such portions of the Offer
Space only if:
(1) Tenant delivers to Landlord written notice exercising
its option to lease the Offer Space within thirty (30) days after Tenant's
receipt of the Offer Notice for such Offer Space; and
(2) There is not any uncured default by Tenant in the
payment of any item of Rent hereunder and there is no other material uncured
default by Tenant hereunder at the time Landlord gives the Offer Notice or at
the commencement of the lease of Offer Space.
If Tenant fails to timely exercise its right to lease any portion of the
Offer Space after Tenant's receipt of the Offer Notice from Landlord for such
Offer Space, Tenant shall have no further right to lease that Offer Space under
this Paragraph 46.
C. The following terms shall apply to and govern each lease of any
portion of the Offer Space which Tenant elects to lease under this Paragraph 46:
(1) Base Rent shall be equal to the FMRV as determined in
accordance with the terms set forth in Paragraph 43 of this Lease based upon the
terms and conditions applicable to Tenant's lease of such Offer Space as set
forth in this Paragraph 46 and the Base Year Operating Costs for such Offer
Space shall be the Operating Costs for the year on which the lease for such
Offer Space commences hereunder.
(2) The term shall begin on the date the Offer Space becomes
available to Landlord for releasing and end on the expiration or earlier
termination of
- 35 -
58
the Lease Term, including any and all extensions thereof; provided that Rent for
such Offer Space shall not be payable until the 60th day after the beginning of
the term for such Offer Space.
(3) Tenant shall take the space in an "As is" condition with
all improvements to be Tenant's responsibility at Tenant's cost.
D. Landlord and Tenant shall execute those instruments Landlord
reasonably requests to evidence the inclusion of arty Offer Space leased by
Tenant under this Paragraph 46 into the balance of the Leased Premises then
leased by Tenant under this Lease.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
the day and year first hereinabove written.
LANDLORD: HUNTINGTON BEACH COMPANY,
a California corporation, by its
managing agent, Chevron Real Estate
Management Company, a division
of Chevron U.S.A. Inc.
BY: /s/ X. X. XXXXXX
-------------------------------------
ITS: Vice President
---------------------------------
TENANT: ECHO BAY MANAGEMENT CORP.,
a Delaware Corporation
BY: /s/ [Signature Illegible]
-------------------------------------
ITS: Controller
---------------------------------
BY: /s/ [Signature Illegible]
-------------------------------------
ITS: Senior Vice President Finance
---------------------------------
- 36 -
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EXHIBIT A
IMPROVED AREA
[GREENWOOD PLAZA SOUTH DIAGRAM]
A-1
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EXHIBIT B
LEASED PREMISES
[NINTH (9TH) FLOOR DIAGRAM]
B-2
61
EXHIBIT C
Work Agreement
The undersigned, as Landlord and Tenant, are executing simultaneously with this
Work Agreement a Lease covering the Leased Premises therein described (the
"Lease"). This Work Agreement is attached to the Lease as Exhibit C.
Landlord and Tenant agree as follows:
1. Defined Terms
The following terms have the respective definitions indicated for
purposes of this Work Agreement:
(a) "Tenant's Architect" means Saiber. Saiber, Inc., an architectural
firm approved by Landlord to design the Leasehold Improvements on
Tenant's behalf and to represent Tenant during construction, design
and pricing of the Leasehold Improvements.
(b) "Construction Drawings" means the Engineering Working Drawings and
the Architectural Working Drawings.
(c) "Project Engineers" means ABS Consultants, the mechanical engineer,
Xxxxxx. Xxxxxx, the structural engineer, and Xxxxxxx X. Xxxxxxxxx &
Associates, the electrical engineer who shall prepare the
Engineering Working Drawings providing for the construction of the
Leasehold Improvements in accordance with the Space Plan, which
firms have been selected and retained by Tenant's Architect, and
approved by Landlord.
(d) "General Contractor" means the person or firm from time to time
selected by Tenant and approved by Landlord as herein provided,
which approval shall not be unreasonably withheld, to construct and
install the Leasehold Improvements in the Leased Premises.
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(e) "Improvement Allowance" means the allowance to be provided by
Landlord to Tenant as more particularly described in Section 4.1
of this Work Agreement,
(f) "Planning Allowance" means the allowance to be provided by
Landlord to Tenant as more particularly described in Section 4.2
of this Work Agreement
(g) "Moving Allowance" means the allowance to be provided by
Landlord to Tenant as more particularly described in Section 4.3
of this Work Agreement.
(h) "Landlord Delay" means the sum of number of days (i) by which
Landlord was late in providing Landlord's responses contemplated
in this Exhibit C, (ii) of delay caused by changes requested by
Landlord to any aspect of the Leasehold Improvements after the
Construction Drawings have been prepared and approved (including
any delay in preparing any of the documents or drawings
described herein), (iii) of delay caused by Landlord, its
agents, or contractors' interference (if any) in the
construction or delay in processing General Contractor's
submittals as provided herein, (iv) of delay caused by the
inclusion at the instance of Landlord of any work or materials
not shown on the Construction Drawings, (vi) of delay in
completing the Landlord's Work as described herein, (vii) of
delay in inspecting or approving any work completed in
connection With the Leasehold improvements, and (viii) of delay
in taking reasonable steps to cooperate with Tenant in
completing the Leasehold improvements, including, without
limitation, providing access to the Building and the Premises
and completing permit applications' or executing other documents
which may be necessary in connection with the Leasehold
Improvements.
(i) "Landlord's Representative" means Xxxxxxx Xxxxxxxxx (or another
individual employee of Landlord identified by Landlord as the
substitute Landlord's Representative upon reasonable prior
notice to Tenant), the individual employee of Landlord who has
been assigned by Landlord to review and approve the plans and
specifications for the Leasehold Improvements and
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to monitor the construction of the Leasehold Improvements, and
to assist and cooperate with Tenant in connection therewith, as
contemplated herein.
(j) "Landlord's Plan Architect" means the independent architect
hired by Landlord, if any, to assist in Landlord's review of the
Space Plan and the Construction Drawings.
(k) "Landlord's Construction Architect" means the independent
architect hired by Landlord, if any, to assist Landlord and
Landlord's Representative in monitoring the construction of the
Leasehold Improvements, which architect may be the same
architect as Landlord's Plan Architect.
(l) "Leasehold Improvements" means the improvements to the Leased
Premises shown on the Construction Drawings.
(m) "Substantial Completion" means the date that the Leasehold
Improvements are certified by Tenant's Architect as sufficiently
complete, such that Tenant can reasonably occupy and utilize the
Leased Premises for the Permitted Purpose.
Unless otherwise defined herein, capitalized terms used in this Work
Agreement shall have the meanings ascribed to such terms in the Lease.
2. Space Planning and Engineering
2.1 Space Plan. Landlord shall provide to Tenant's Architect the
architectural and engineering drawings for the base building improvements for
the Building and the as-built drawings, plans and specifications, and all other
drawings and construction documents in Landlord's possession or control relating
to the prior improvements made to the Leased Premises ("Landlord Drawings").
Tenant shall provide to Landlord's Representative a space plan for the Leased
Premises (referred to herein as the "Space Plan") prepared by Tenant's
Architect. The Space Plan shall be prepared by the Tenant's Architect at
Tenant's sole cost and expense, subject to Landlord's payment of the Planning
Allowance as hereinafter provided.
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2.2 Approval of Space Plan. Within five (5) business days after the
receipt by Landlord's Representative of the Space Plan, Landlord shall review
the Space Plan. If Landlord determines, in its reasonable good faith judgment,
that the Space Plan is incompatible with the base building specifications for
the Building, Landlord shall so advise Tenant's Architect and Tenant's Architect
shall revise the Space Plan accordingly and resubmit it to Landlord's
Representative and the review procedure and time frames set forth above shall be
repeated. Otherwise, Landlord shall notify Tenant's Architect of its approval of
the Space Plan as promptly as reasonably possible. If no notice of approval or
disapproval is given by Landlord to Tenant's Architect within five (5) business
days after the receipt Of the Space Plan by Landlord's Representative, the
Scheduled Commencement Date shall be automatically extended one day for each day
after such period until Landlord notifies Tenant's Architect of its approval or
disapproval.
2.3 Engineering Working Drawings. Based upon the approved Space
Plan, the Project Engineers shall prepare the structural, plumbing, fire
protection, mechanical, electrical, and life safety engineering drawings
("Engineering Working Drawings"). The Engineering Working Drawings shall be
submitted to Landlord's Representative for review and approval by Landlord,
which approval shall not be unreasonably withheld. If no notice of approval or
disapproval of the Engineering Work Drawings is given by Landlord to Tenant's
Architect within five (5) business days after the receipt thereof by Landlord's
Representative, the Scheduled Commencement Date shall be automatically extended
one day for each day after such period until Landlord notifies Tenant's
Architect of its approval or disapproval. The costs for the preparation of the
Engineering Working Drawings shall be borne by Tenant, subject to Landlord's
payment of the Planning Allowance and the Improvement Allowance as hereinafter
provided.
2.4 Architectural Working Drawings. Tenant's Architect shall
provide Landlord's Representative with architectural working drawings prepared
by the Tenant's Architect (the "Architectural Working Drawings") for the Leased
Premises for review and approval by Landlord, which approval shall not be
unreasonably withheld. The Architectural Working Drawings shall include the
following: (a) partition layout and door locations; (b) electrical outlets,
including the location and usage thereof; (c) telephone outlets, including a
description of the system and the size
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of conduit servicing each outlet, (d) a ceiling plan showing standard and
non-standard lighting, switching requirements, and ceiling construction or
constraints; (e) Tenant's occupancy capacity and usage equipment loads for all
spaces, particularly special usage rooms, including, but not limited to,
conference rooms, lounges, coffee rooms, copy rooms, computer terminal or
keypunch rooms, audio-visual rooms, and reproduction or print rooms which
require special heating, ventilating, air conditioning or fire protection; (f)
Tenant's floor loading for all spaces, particularly special usage rooms; and (g)
floor penetrations, including but not limited to special stairs, dumbwaiters,
conveyors, pneumatic systems, elevators, or architectural features. If Landlord
determines, in its reasonable good faith judgment, that the Architectural
Working Drawings contain design errors, Landlord shall give notice thereof to
Tenant within five (5) business days after the receipt thereof by Landlord's
Representative. If the Architectural Working Drawings are acceptable to
Landlord, Landlord shall communicate its approval to Tenant's Architect as
promptly as reasonably possible, but in any event on or before the expiration of
such five business day period. If Landlord does not reply within such period of
time, the Scheduled Commencement Date shall be automatically extended one day
for each day after such period until Landlord notifies Tenant's Architect of its
approval or disapproval. If Landlord notifies Tenant's Architect of design
errors, Tenant shall revise the Architectural Working Drawings accordingly and
resubmit them to Landlord's Representative and the review procedure set forth
above shall be repeated. When approved by Landlord and Tenant, the Engineering
Working Drawings and the Architectural Working Drawings shall be acknowledged as
such by Tenant and Landlord in writing and such approved drawings shall be
deemed to constitute the "Construction Drawings."
2.5 Changes. If Tenant wishes to make any material changes to the
Construction Drawings, Tenant shall submit a written request describing such
changes to Landlord's Representative. Any such changes may be made by Tenant
only upon the prior written approval of Landlord's Representative, which
approval shall not be unreasonably withheld. Landlord's Representative shall
respond to all written requests for any such changes within five (5) days of
receipt of the same by Landlord's Representative. If Landlord's Representative
does not respond within such period of time, the Scheduled Commencement Date
shall be automatically extended one day for each day after such period until
Landlord notifies Tenant's Architect of its approval or disapproval.
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3. Construction of Leasehold Improvements
3.1 Tenant to Construct Leasehold Improvements. Following approval
of the Construction Drawings, Tenant shall be responsible to the completion of
the Leasehold Improvements in substantial compliance with the Construction
Drawings, at its sole cost and expense, subject to Landlord's payment of the
improvement Allowance. Landlord shall deliver possession of the Leased Premises
to Tenant for the purpose of constructing the Leasehold Improvements (and
installing Tenant's trade fixtures, furnishings, equipment, and other personal
property) on or before June 1, 1995; except that, as to those portions of the
Leased Premises which are occupied as of the date of this Lease, Landlord shall
deliver such possession to Tenant on or before June 30, 1995. It is understood
and agreed that Landlord is making the Leased Premises available to Tenant for
such purposes prior to the Lease Commencement Date and prior to the commencement
of Tenant's obligations for the payment of Rent under the Lease. Tenant's use
and occupancy of the Leased Premises prior to the Lease Commencement Date shall
be subject to all of the terms and provisions of the Lease, except for Tenant's
obligation to pay Rent. There shall be no charge to Tenant for its early access
to the Building and the Leased Premises or for the use by Tenant of electrical
power and other Building services during the construction of the Leasehold
improvements.
3.2 General Contractor. Tenant shall enter into a direct contract
for construction services to complete the Leasehold improvements with the
General Contractor. Prior to execution of the contract between Tenant and the
General Contractor, Tenant shall provide a copy of the contract to Landlord's
Representative for its review and approval, which approval shall not be
unreasonably withheld. Landlord shall review the contract and approve or
disapprove the contract in writing within five (5) days thereafter. If Landlord
fails to notify Tenant's Architect of its approval or disapproval of the
contract within such 5-day period, the Scheduled Commencement Date shall be
automatically extended one day for each day after such period until Landlord
notifies Tenant's Architect of its approval or disapproval. Tenant and the
General Contractor shall have the right to select and contract directly with all
sub-contractors and all other parties supplying work or materials to the Leased
Premises. The Genera Contractor and all sub-contractors shall be required to
comply with the Construction Procedures set forth on Exhibit K attached hereto,
as the same
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may be amended from time to time by Landlord upon reasonable prior notice to the
General Contractor.
3.3 Compliance with Laws. Tenant shall cause Tenant's Architect, the
General Contractor, and all Sub-contractors to: (i) conduct their work in such a
manner so as not to unreasonably interfere with any other construction occurring
on or in the Building or any other tenants of the Building, (ii) comply with all
laws, codes, permits, rules, and regulations relating to the construction
activities in or on the Building; and (iii) maintain such insurance in force
and effect as required by the Lease, but in any event not less than that
required by applicable law.
4. ALLOWANCES
4.1 Improvement Allowance. Landlord shall pay to Tenant an
Improvement Allowance for the costs incurred by Tenant in the construction of
the Leasehold Improvements to be made to the Leased Premises in an amount equal
to the product of $20.00 multiplied by the total number of rentable square feet
in the Leased Premises.
4.2 Planning Allowance. Landlord shall pay to Tenant a Planning
Allowance for costs incurred by Tenant in the planning and designing of the
Leasehold Improvements to be made to the Leased Premises in an amount equal to
the product of $2.00 multiplied by the total number of rentable square feet in
the Leased Premises. The Planning Allowance shall be payable by Landlord to
Tenant upon Landlord's approval of the Architectural Working Drawings and the
Engineering Working Drawings.
4.3 Moving Allowance. Landlord shall pay to Tenant a Moving
Allowance for the costs incurred by Tenant in relocating its business to the
Leased Premises in an amount equal to the product of $1.00 multiplied by the
total number of rentable square feet contained in the Leased Premises. The
Moving Allowance shall be payable by Landlord to Tenant upon the Lease
Commencement Date.
4.4 Payment of Improvement Allowance. Tenant shall from time to time
submit to Landlord's Representative invoices for any costs and expenses incurred
in connection with the Leasehold Improvements, together with evidence of payment
of
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such invoices, lien waivers, and any other documentation reasonably requested by
Landlord's Representative, and, subject to the approval of such items by
Landlord's Representative, Landlord shall pay Tenant the amount set forth on
such invoice or invoices as promptly as reasonably possible but in no event
later than thirty (30) days after the receipt of such items by Landlord's
Representative. Landlord shall from time to time pay amounts against the
Improvement Allowance in accordance with the terms set forth herein up to the
total amount of the Improvement Allowance; provided that, Landlord shall have
the right to retain up to a total of 10% of the Improvement Allowance until
after the General Waiver (as defined below) is delivered to Landlord's
Representative. Upon completion of the Leasehold Improvements, Tenant shall
obtain and deliver to Landlord's Representative a general lien waiver covering
the Leasehold Improvements from the General Contractor, which lien waiver shall
be in form and substance reasonably acceptable to Landlord (the "General
Waiver").
5. Landlord's Work
5.1 Existing Improvements. All existing improvements in the Leased
Premises as of the date of this Lease, including, without limitation, all doors,
door frames, hardware, ceiling grids and tiles, light fixtures, millwork,
built-ins, end all similar items (the "Existing Improvements"), may be used by
Tenant at no charge. Tenant shall have the right to demolish and remove from the
Leased Premises any and all of the Existing Improvements which Tenant elects not
to use; provided that, prior to such demolition, Tenant shall offer any such
items to Landlord's Representative. If Landlord elects to salvage any such
items, Landlord shall, at Landlord's expense, remove such items in a manner
which will not delay or interfere with the construction of the Leasehold
Improvements; provided that Tenant shall use reasonable efforts to cooperate
with Landlord in Landlord's removal of any such items.
5.2 Core and Shell Work. All core and shell work required to be done
in connection with the Leasehold Improvements, including without limitation,
floor leveling to a specification of a variation of not more than one quarter
inch for every ten feet, shall be done by Landlord, at Landlord's expense.
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6. Relocation of Existing Tenants and Relinquishment of Rights
6.1 Relocation and Relinquishments. In order for the Leased Premises
to be ready for Tenant's use and occupancy at the times contemplated herein, it
will be necessary to take the following actions:
(A) Chrysler Financial Corporation will be relocated from the space
which it currently occupies on the 9th Floor of the Tower to
other space containing 5,904 rentable square feet on the 16th
Floor of the Tower (the "Chrysler Relocation").
(B) Budget Rent-A-Car will relinquish all expansion and any other
rights and options which it currently has on the 5th Floor of
the Tower (the "Budget Relinquishment").
(C) Sybase will relinquish all expansion and any other rights and
options which it currently has on the 5th Floor of the Tower,
except for a right of first refusal on the space on the 5th
Floor of the Tower (containing approximately 5,100 rentable
square feet) which will continue to be leased to Xxxxxxxx Pipe &
Steel after the Xxxxxxxx Contraction described in Paragraph
6.1(D) below (the "Sybase Relinquishment").
(D) Xxxxxxxx Pipe & Steel will contract the space it leases on the
5th Floor of the Tower to a total of approximately 5,100
rentable square feet, and will relinquish all other rights and
options which it currently has on the 5th Floor of the Tower
(the "Xxxxxxxx Contraction").
(E) Missing Link will cancel all rights and options to lease space
on the 5th Floor of the Tower (the "Missing Link Cancellation").
The foregoing actions are hereinafter referred to collectively as the
"Relinquishments." Both Landlord and Tenant shall use their best efforts and
shall cooperate with each other to cause all of the Relinquishments to be
completed as promptly as reasonably possible. In the event that any of the
Relinquishments is not completed in a manner
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which is reasonably satisfactory to either party hereto on or before May 20,
1995, both Landlord and Tenant shall have the right to terminate this Lease by
giving written notice of termination to the other party at any time after such
date and on or before June 5, 1995.
6.2. Coordination. Landlord shall, at Landlord's expense (subject to
Tenant's obligation to pay the amounts set forth in Section 6.3 below),
coordinate all aspects of the Chrysler Relocation, the Budget Relinquishment,
the Sybase Relinquishment, the Xxxxxxxx Contraction, and the Missing Link
Cancellation in a manner which will cause all portions of the Leased Premises to
be available to Tenant at the times contemplated herein.
6.3 Payments by Tenant. Tenant shall reimburse Landlord for the
following costs incurred in connection with the Chrysler Relocation, the Budget
Relinquishment, the Sybase Relinquishment, the Xxxxxxxx Contraction, and the
Missing Link Cancellation:
(A) In connection with the Chrysler Relocation, Tenant shall
reimburse Landlord for all Relocation Costs paid by Landlord in
connection with the Chrysler Relocation; provided that in no
event shall Tenant be obligated hereby to pay any amount greater
than $159,400 for such Relocation Costs. As used herein, the
"Relocation Costs" shall mean all of the actual out-of-pocket
costs incurred by Landlord in connection with the Chrysler
Relocation, including, without limitation, all such costs
incurred by Landlord for: the preliminary space planning; final
space planning; construction documents; mechanical engineering
design and documentation; electrical design and documentation;
demolition; construction management costs including fees;
special consultants costs (structural, acoustical, vibration,
etc.), direct costs of construction; all required permits and
fees; the cost to move personal effects and furniture; the
reprinting of Stationary and related materials; the rewiring and
relocation of telecommunications equipment; and any other
reasonable expenses incurred by Landlord in connection with such
relocation.
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(B) In connection with the Budget Relinquishment, Tenant shall
reimburse Landlord for all relinquishment fees and other costs
paid by Landlord for such relinquishment up to a total of
$50,000.
(C) In connection with the Sybase Relinquishment, Tenant shall
reimburse Landlord for all relinquishment fees and other costs
paid by Landlord for such relinquishment up to a total of
$9,750.
(D) Tenant shall have no obligation to pay or reimburse Landlord
for any costs incurred in connection with the Xxxxxxxx
Contraction or the Missing Link Cancellation.
All costs payable by Tenant hereunder shall be paid by Tenant to Landlord within
ten (10) business days after Tenant's receipt of evidence of the payment of such
costs by Landlord.
7. Supervision Fee
Landlord shall be entitled to a fee (the "Supervision Fee") for the
actual out-of-pocket costs paid by Landlord to the Landlord's Plan Architect (at
a rate not to exceed $100 per hour), the Landlord's Construction Architect (at a
rate not to exceed $100 per hour, and the Landlord's Representative (at the rate
not to exceed $28 per hour) in connection with the Landlord's review and
approval of the Space Plan and the Construction Drawings and the supervision of
the construction of the Leasehold Improvements. Tenant shall pay amounts against
the Supervision Fee from time to time within ten (10) business days after
Tenant's receipt of evidence of the payment of such costs by Landlord.
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Landlord and Tenant have executed this Work Agreement contemporaneously
with execution of the Lease,
LANDLORD: HUNTINGTON BEACH COMPANY,
a California corporation, by its
managing agent, Chevron Real Estate
Management Company, a division
of Chevron U.S.A. Inc.
By: /s/ X. X. XXXXXX
-------------------------------------
Its: Vice President
---------------------------------
TENANT: ECHO BAY MANAGEMENT CORP.,
a Delaware Corporation
By: /s/ [Signature Illegible]
-------------------------------------
Its: Controller
---------------------------------
By: /s/ [Signature Illegible]
-------------------------------------
Its: Senior Vice President, Finance
---------------------------------
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EXHIBIT D
JANITORIAL SERVICES
1. Supervision
A. Landlord will provide an adequate supervisory staff as required
to maintain the optimum level of cleanliness as defined herein.
B. In addition to the supervision of all cleaning services, the
supervisory staff Will be responsible to Landlord for the
following:
1. Securing all suite entrances in conjunction with the
Building's security requirements.
2. Locking those offices and other areas of the Leased
Premises from time to time designated by Tenant.
3. Report as soon as reasonably possible, in writing, all
accident and/or damage reports to Tenant via Landlord.
4. The supervisory staff shall be available on request by
Tenant, through Landlord, during the normal business
hours of the Building to visit with Tenant and answer
complaints of any nature relating to the janitorial
function.
2. Employee Bonding
A. Landlord will cause to be bonded all of its employees and all
employees of any janitorial contractor engaged by Landlord in
amounts to be mutually agreed upon.
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3. General Procedures
The following general procedures will be followed by Landlord's
janitorial personnel:
A. Report in writing all damage, breakage, and/or apparent plumbing
or electrical problems to Landlord immediately.
B. Report any evidence of security breaches to Landlord
immediately,
C. Maintain all janitor closets, slop sinks and storerooms in a
safe and clean condition at all times.
D. Lock all entrance doors during the entire cleaning operation.
Only the cleaner assigned to clean each tenant suite and the
supervisory staff are to be admitted to the respective tenant
areas.
E. Close all perimeter office doors after cleaning to prevent
excessive heat gain or heat loss in the interior spaces.
F. Diligence will be exercised to prevent damage to corners and
wall finishes by electrical extension cords.
G. Buckets will be emptied only in designated janitorial sinks
within designated janitorial closets on each floor.
H. Doors will be held open by door stops only, not by foreign
materials in the door jambs.
4. Scheduling
A. Nightly Services:
All nightly services will be performed Monday through Friday,
fifty-two weeks per year except on those holidays listed below:
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New Year's Day
President's Day
Memorial Day
Independence Day
Labor Day
Thanksgiving Day
Christmas Day
B. Periodic Services:
All periodic services listed in the specifications will be
performed at the indicated frequencies.
5. Janitorial Service Specifications for Tenant Suite and Common Areas on
Tenant Floors
A. Nightly Services:
1. Vacuum all carpets.
2. Spot shampoo traffic areas, when requested. (Complete
shampoo service is available by request but is subject
to a separate additional charge.)
3. Dust mop all resilient and composition floors with
treated dust mops. Damp mop to remove spills and water
stains, as required.
4. Dust all desks and office furniture with lambs' wool
duster. (Desks will only be dusted when clear of all
papers and personal items).
5. Empty and clean ash trays and ash urns.
6. Empty all wastepaper baskets and remove liners as
required.
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7. Remove all trash from floors.
8. Remove fingerprints, dirt smudges, etc., from all doors,
frames, glass partitions, windows, light switches,
walls, elevator door jambs, elevator interiors and glass
doors, as required.
9. Return chairs and wastebaskets to proper positions.
10. Clean, sanitize and polish drinking fountains, as
required,
11. Hand dust and clean stairwells interconnecting floors
and polish hand rails, as required.
12. Clean and remove debris from all metal door thresholds.
13. Wipe clean smudged bright work, as required.
14. Spot clean all carpets, resilient and composition
floors, as required.
B. Weekly Services
1. Dust all low reach areas including, but not limited to
chair rungs, furniture ledges, baseboards, wood paneling
molding, etc.
2. Dust all vinyl base.
3. Clean and buff all building standard resilient and/or
composition flooring.
4. Dust all high reach areas including, but not limited to,
tips of partitions.
5. Edge all carpeted areas.
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6. Dust all high reach areas including, but not limited to,
picture frames and similar wall hangings, as required.
C. Monthly Services
1. Dust all high reach areas including, but not limited to,
tops of door frames, furniture ledges, air conditioning
diffusers and return grills and graphs.
2. Vacuum or brush upholstered furniture.
D. Quarterly Services
1. Shower scrub or otherwise recondition all resilient or
composition flooring to provide a level of appearance
equivalent to a completely refinished floor as requited.
2. Dust venetian blinds and draperies.
3. Clean partition glass as requested.
4. Damp wipe outside of all supply and return air
diffusers. (Building engineers will damp wipe inside of
all supply and return air diffusers.)
E. Annual Services
1. Clean all parabolic light fixtures, as required.
6. Restroom Service Specifications
A. Nightly Services
1. Restock all restrooms with supplies including paper
towels, toilet tissue, seat covers and hand soap as
required.
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2. Restock all sanitary napkin and tampon dispensers as
required.
3. Wash and polish all mirrors, dispensers, faucets,
flushometers and bright work.
4. Wash and sanitize all toilet, toilet seats, urinals and
sinks. Wipe dry all sinks.
5. Remove stains, descale toilets, urinals and sinks as
required.
6. Mop all restroom floors with disinfectant germicidal
solution and remove all stains beneath urinals.
7. Empty all waste, sanitary napkin and tampon receptacles;
8. Remove all restroom trash.
9. Clean finger prints, marks arid graffiti from walls,
partitions, glass, aluminum and light switches where
required.
10. Clean and leave streak free all partition doors and
metal attachments.
B. Weekly Services
1. Clean tile grout, access doors and floor drains.
2. Thoroughly mop all ceramic tile floors.
C. Monthly Services
1. Dust all low reach and high reach areas including, but
not limited to ledges, mirror tops, partition tops and
edges, air conditioning diffusers and return air grills.
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2. Wipe down all tile walls, as required.
7. Main Floor and Elevator Lobbies
A. Nightly Services
1. Thoroughly wash and clean all swinging and revolving
glass doors and hardware.
2. Clean and polish lobby, including glass directories.
3. Clean and polish all bright work including kick plates,
base, partition top hand rails, waste paper receptacles,
planters, elevator call button plates, hose cabinets and
service elevator lobby, landings, elevator tracks and
visible hardware, as required.
4. Clean all interior architectural aluminum finishes, as
required.
5. Thoroughly clean all door saddles of dirt and debris.
6. Spot clean, sweep and damp mop all granite, brick paver
and seal as required.
7. Clean and dust countertops, work table, directory board
glass and ledges.
8. Empty all wastebaskets and refuse receptacles and
replace liners as required.
B. Weekly Services
1. Shampoo all first floor elevator lobby carpeting.
C. As Required
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9. Landlord personnel or special contractors shall clean
all painted, vinyl and granite wall surfaces, as
required.
8. Service Offices (Engineering Office and Janitor's Office and Closets);
Storerooms; Service Corridors and Roof
A. Nightly Services
1. Remove trash from all of the above areas.
2. Maintain an orderly arrangement of all janitorial
supplies and paper products in the storage rooms and
service sink closets.
3. Maintain in a clean and orderly arrangement all
equipment stored in these areas, such as mops, buckets,
brooms, vacuum cleaners, scrubbers, etc.
4. Clean and disinfect service sinks, as required.
5. Sweep and damp mop service sink closet floors. Deodorize
and disinfect as required, as required.
6. Sweep storeroom floors, as required.
Weekly Services
B. Weekly Services
1. Damp mop all composition floors in storeroom. Deodorize
and disinfect as required.
9. Passenger Elevator Cleaning Specifications
A. Nightly Services - As Required,
1. Clean all walls inside of cabs including base.
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2. Clean interior surfaces of cab walls and doors.
3. Spot clean elevator cab floor carpeting.
4. Vacuum all cab floor carpeting thoroughly. Edge all
carpeting thoroughly.
B. Weekly Services
1. Damp wipe clean entire cab ceiling.
C. Every Two Weeks
1. Shampoo and hot water extract with neutralizing rinse
all elevator cab floor carpets.
D. Monthly Services
2. Clean outside surfaces of all elevator doors and frames.
10. Service Elevator Cleaning Specifications
A. Nightly Services
1. Spot clean all surfaces of the interior of all cabs and
all exterior doors and frames.
B. Weekly Services
1. Spot clean all interior and exterior surfaces of cab
walls, doors and frames.
2. Clean and polish floor landing tracks.
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3. Thoroughly clean dirt and debris from grooves in both
cab and landing door tracks, polish cab tracks.
4. Sweep and scrub flooring of all cabs.
C. Monthly Services
1. Machine scrub and refinish where applicable.
1.1 Loading Area, Trash Area and Service Entrance Specifications
A. Nightly Services
1. Place all miscellaneous trash and debris, except
construction materials, in the Building's trash
receptacles, compactors or balers.
2. Neatly stack all trash in designated area (compactor or
bin).
3. Sweep entire area.
4. Hose down or mop entire trash area and disinfect as
required.
B. Weekly Services
1. Hose down entire loading dock area and service entrance
area. Deodorize and disinfect area as required.
12. Exterior Structure and Grounds Services Specifications
A. Nightly Services
1. Police entire perimeter of project, weather permitting.
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2. Spot sweep accumulations of dirt, papers and leaves in
all corner areas where wind tends to cause a collection
of this debris.
B. Weekly Services
1. Hose down entire perimeter of project, weather
permitting.
C. Quarterly Services
1. Wash clean all windows (two times per year), as
practicable.
(Exterior window cleaning is not provided by Landlord's
janitorial contractor but rather by a designated window
cleaning contractor.)
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EXHIBIT E
LEASE COMMENCEMENT DATE STATEMENT
Date:________ 19___
Chevron Real Estate Management Company
0000 Xxxxx Xxxxxxx'x Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Leasing Manager
This letter is being delivered to Chevron Real Estate Management Company
("CREMCO") in accordance with Paragraph 16 of that certain lease (the 'Lease')
dated _______, 19__, between Huntington Beach Company, a California Corporation,
by its agent, Chevron Real Estate Management Company, a Division of Chevron
U.S.A. Inc. and the undersigned.
We hereby acknowledge that the Lease Commencement Date (as defined in
the Lease) is _______________, the date of expiration of the Lease Term (as
defined in the Lease) is _____________,19__ and Tenant's Total Square Footage is
________________ , rentable square feet.
Very truly yours,
Tenant
X-0
00
XXXXXXX X
RULES AND REGULATIONS
1. The sidewalks, entrances, halls, corridors, elevators and stairways of
the Building shall not be obstructed or used as a waiting or lounging
place by Tenant, or its agents, servants, employees, invitees,
licensees, and visitors.
2. Landlord reserves the right to refuse admittance to the Building at any
time other than between the hours of 6:00 a.m. and 6:00 p.m. weekdays,
or 7:00 a.m. to 1:00 p.m. on Saturdays, to any person not producing
either a key to the Leased Premises or a pass issued by Landlord. In
case of invasion, riot, public excitement or other commotion, Landlord
also reserves the right to prevent access to the Building during the
continuance of same. Landlord shall in no case be liable for damages for
the admission or exclusion of any person to or from the Building.
3. Landlord will furnish each Tenant with two keys to each door lock in the
Leased Premises, and Landlord may make a reasonable charge for any
additional keys requested by Tenant. No Tenant shall have any keys made
for the Leased premises; nor shall any Tenant alter any lock, or install
new or additional locks or bolts, on any door without the prior written
approval of Landlord. If a lock alteration or installation is made, the
new lock must accept the master key for the Building. Each Tenant, upon
the expiration or termination of its tenancy, shall deliver to Landlord
all keys in such Tenant's possession for all locks and bolts in the
Building.
4. In order that the Building may be kept in a state of cleanliness, each
Tenant shall, during the term of its Lease, permit Landlord's employees
(or Landlord's agent's employees) to take care of and clean the Leased
Premises, and Tenant shall not employ any person(s) other than
Landlord's employees (or Landlord's agent's employees) for such purpose.
No tenant shall cause any unnecessary labor by reason of such Tenant's
carelessness or indifference in the preservation
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of good order and cleanliness of the Leased premises. Tenant, will
ensure that before leaving the Leased Premises each day:
(a) the doors are securely locked; and
(b) all water faucets and other utilities are shut off: (so
as to prevent waste or damage).
In no event shall Tenant place such items for disposal in the public
hallways or other common areas of the Building or Improved Area.
5. Landlord reserves the right to prescribe the date, time, method and
conditions that any personal property, equipment, trade fixtures,
merchandise and other similar items shall be delivered to or removed
from the Building. No steel safe or other heavy or bulky object shall be
delivered to or removed from the Building except by experienced safe
men, movers, or riggers approved in writing by Landlord. All damage
done to the Building by the delivery or removal of such items, or by
reason of their presence in the Building, shall be paid by Tenant to
Landlord immediately upon demand therefor. For the delivery or receipt
of merchandise, only hand-trucks equipped with rubber tires shall be
used by Tenant jobbers or others.
6. The walls, partitions, skylights, windows, doors, and transoms that
reflect or admit light into passageways or into any other part of the
Building shall not be covered or obstructed nor have signs or
advertisements posted on them by any Tenant.
7. The toilet rooms, toilets, urinals, wash bowls and water apparatus shall
not be used for any purpose other than for those for which they were
constructed or installed, and no sweepings, rubbish, chemicals, or other
unsuitable substances shall be thrown or placed therein. The expense of
any breakage, stoppage or damage resulting from violations of this rule
by Tenant or by Tenant's agents, servants, employees, invitees,
licensees, or visitors, shall be borne by Tenant.
8. No sign, name, placard, advertisement, or notice visible from the
exterior of any Leased Premises shall be inscribed, painted or affixed
by any Tenant on any
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window or other part of the Building or Improved Area without the prior
written approval of Landlord. A directory containing the names of all
tenants of the Building shall be provided by landlord at an appropriate
place on the first floor of the Building.
9. No electronic signaling, telegraphic, or telephonic instruments or
devices, or other wires, instruments or devices, shall be installed in
connection with any Leased Premises without the prior written approval
of Landlord, which approval shall not be unreasonably withheld. Such
installations, and the boring or cutting of wires, shall be made at the
sole cost and expense Of Tenant and under the control and direction of
Landlord. Landlord retains, in all cases, the right to require:
(a) the installation and use of such electrical protecting
devices that prevent the transmission of excessive
currents of electricity into or through the Building;
(b) the changing of wires and of their installation and
arrangement underground or otherwise as Landlord may
direct; and
(c) compliance on the part of all using or seeking access to
such wires with such rules as Landlord may establish
relating thereto. All such wires used by Tenant must be
clearly tagged at the distribution boards and junction
boxes and elsewhere in the Building, with (x) the number
of the Leased Premises to which said wires lead, (y) the
purpose for which said wires are used, and (z) the name
of the company operating same.
10. Tenant, its agents, servants, and employees shall not:
(a) go upon the roof of the Building;
(b) use any additional method not approved in writing by the
Landlord of heating or air conditioning the Leased
Premises;
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(c) sweep or throw any dirt or other substance from the
Leased Premises into any of the halls, corridors,
elevators, or stairways of the Building, or onto any
part of the Improved Area;
(d) bring in or keep in or about the Leased Premises any
vehicles or animals of any kind;
(e) install any radio or television antenna or any other
device or item on the roof, exterior walls, windows, or
window xxxxx of the Building or anywhere in the Improved
Area;
(f) place objects against glass partitions, doors, or
windows which would be unsightly from the interior or
exterior of the Building;
(g) place pictures, plants, or any other items on window
xxxxx which would interfere with closing of window
blinds by the janitors at night;
(h) use any portion of the Leased Premises: (i) for lodging
or sleeping, (ii) for cooking (except that the use by
any Tenant of Underwriter's Laboratory-approved
equipment for brewing coffee, tea and similar beverages
or the use by Tenant of e similarly-approved microwave
oven shall be permitted, provided that such use is in
compliance with law), or (iii) for any purpose other
than the Permitted Purpose provided for in the Lease; or
(i) permit the operation of any musical or other
sound-producing instruments or devices which may be
heard outside the Tenant's Leased Premises, or which may
emit signals which will impair radio or television
broadcast or reception from or into the Building.
11. Tenant shall not store, carry into, or use within Plaza Tower One or in
any Leased Premises or permit others to do so:
(a) any ether, naphtha, phosphorous, benzol, gasoline,
benzine, petroleum, crude or refined earth or coal oils,
kerosene or camphene;
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(b) any other flammable, combustible, explosive or
illuminating fluid, gas or material of any kind; or
(c) any other fluid, gas or material of any kind having an
offensive odor; or
(d) any firearm (loaded or unloaded) or any other weapon or
ammunition for a weapon.
12. No canvassing, soliciting, distribution of handbills or other written
material, or peddling shall be permitted in the Building or the Improved
Area, and Tenant shall cooperate with Landlord in prevention and
elimination of same.
13. Tenant shall give Landlord prompt notice of all accidents to, or defects
in, air conditioning equipment, plumbing, electrical facilities, or any
part or appurtenances of the Leased premises.
14. The Improved Area outside the Building may be used for the enjoyment of
Tenant, its agents, servants, and employees without restriction so long
as such parties conduct themselves in a manner so as not to disturb
others or disturb, destroy, or litter the Improved Area. All parties
using the Improved Area shall comply with all applicable governmental
laws, ordinances, rules and regulations and all rules and regulations of
Arapahoe County.
15. Tenant personnel and their guests shall observe 'No Smoking' signs where
posted in Plaza Tower One and refrain from smoking in the Leased
Premises, elevator lobbies, elevators, public corridors, building
stairwells and restrooms. Smoking is permitted only on the terrace area
outside the east end of Level Two.
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EXHIBIT G
ATTORNMENT AND NONDISTURBANCE AGREEMENT
THIS AGREEMENT, made as of ______________ between _____________
hereinafter referred to as "Interest Holder" and __________________ hereinafter
referred to as "Tenant".
W I T N E S E T H:
THAT, WHEREAS, HUNTINGTON BEACH COMPANY, a California Corporation,
hereinafter referred to as 'Landlord', has by Lease executed on _______________,
leased to Tenant for a term of years, commencing on _________, and, ending on,
______________, or upon such postponed date as shall be designated
by written endorsement to the Lease, certain portions of the building located in
the County of Arapahoe, State of Colorado, such portions being hereinafter
called the "Leased Premises", and the building more particularly described as
follows:
WHEREAS, Interest Holder is the holder of a lien or other interest in
the form of a _________ and recorded at ________, and any amendments,
supplements or extensions thereto, hereinafter referred to as the "Encumbrance";
and
WHEREAS, the encumbered premises under the foregoing encumbrance are the
same premises as, or include the Leased Premises set forth in, the legal
description above;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained, the parties hereto agree as follows:
1. Tenant agrees that in the event of any foreclosure or the
exercising of any other rights under the Encumbrance, whereby
Interest Holder shall cause Landlord to be ousted from
possession or assert any right of ownership inconsistent with
Tenant's right under the Lease, at any time arid from time
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to time after commencement of the term of the Lease and prior to the
expiration, cancellation or other termination thereof, for any reason,
Tenant shall be bound to Interest Holder, the purchaser at a foreclosure
sale, any receiver appointed under the Encumbrance, assignment of rents,
or court order or any assignee or successor in interest (all of which
are hereinafter referred to as "Transferee") under all of the terms,
covenants, and conditions of the Lease during the remaining term
thereof, including any extensions or renewals which may be effected in
accordance with any option in the Lease, with the same force and effect
as if Transferee were Landlord under the Lease, and Tenant does hereby
attorn to Transferee as its Landlord.
2. The parties hereto do hereby covenant and agree that the Lease and any
modifications and amendments thereto subsequently approved by Interest
Holder, and all rights, options, liens or other charges created thereby,
are, and shall continue to be, subject and subordinate in all respects
to the Encumbrance and the lien created thereby, to any advance made
thereunder, to any consolidations, extensions, modifications, or
renewals thereof, and to any other mortgage on the Leased Premises held
by Interest Holder.
3. So long as no default exists and no event has occurred which would
entitle Landlord to terminate the Lease, Interest Holder agrees that in
the event of any foreclosure or the exercising of any other rights under
said Encumbrance whereby any such Transferee shall oust Landlord of
possession or assert any right of ownership which would, in the absence
of this Agreement, be inconsistent with Tenant's rights under the Lease
and prior to the expiration or termination thereof, the Lease shall, in
accordance with its terms, remain in full force and effect as a direct
Lease between Transferee and Tenant and the possession of Tenant under
the Lease shall not be disturbed by any such event. The Transferee shall
be entitled to all of the rights and benefits and subject to all of the
obligations of the immediately prior landlord under the Lease. If
successive rights should be asserted by any or several Transferees
separately or in any
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combination, Tenant shall have the same rights to continue the Lease in
effect in each such instance.
4. In order to effect the provisions of the preceding paragraphs, Interest
Holder does hereby grant and demise to Tenant the Leased Premises for a
term of years to commence upon the exercise of any right described in
the preceding paragraphs.
Such term of years shall be upon the terms and conditions of the Lease
as though the Lease were between Transferee and Tenant.
5. The provisions of the preceding paragraphs are to be effective and self
operating without the execution of any further instruments upon
Transferee's succeeding to the interest of Landlord under the Lease.
6. This Agreement shall inure to the benefit of and be binding upon Tenant,
Interest Holder, Transferee, their successors and assigns.
7. The effective date of this Agreement is _____________, and the covenants
and conditions hereof shall apply from and after said date.
8. This Agreement shall remain in full force and effect and shall pertain
to said Lease now or as hereafter amended or extended.
9. Neither Interest Holder nor Transferee shall in any way or to any extent
(i) be obligated or liable to Tenant for any prior act, omission or
default on the part of Landlord under the Lease, or (ii) be obligated or
liable to Tenant for any security deposit of other sums deposited with
Landlord not physically delivered to Interest Holder or Transferee, or
(iii) be bound by any previous prepayment of rent for a period greater
than one month, unless such modification, amendment or prepayment shall
have been expressly authorized in writing by Interest Holder, and Tenant
shall have no right to set off assets or counterclaim against Interest
Holder or the Transferee for any of the acts or omissions of Landlord
referred to in (i), (ii), or (iii) above.
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10. In the event of any act or omission by Landlord under the Lease which
would give Tenant the right to terminate the Lease or claim a partial or
total eviction, Tenant shall not exercise any such right until (i) it
has given notice thereof to Interest Holder, and (ii) Interest Holder,
following the giving of such notice, shall have failed to commence or
pursue action to remedy such act or omission in the manner set forth in
the Lease.
11. All notices hereunder shall be given in the manner prescribed in the
Lease.
TENANT: By:
-------------------------------------
Its:
---------------------------------
INTEREST HOLDER: By:
-------------------------------------
Its:
---------------------------------
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EXHIBIT H
ESTOPPEL CERTIFICATE
The undersigned, a duly authorized __________________________ of
__________________________________ __________________________, hereby certifies
unto _____________________________________ as follows:
(1) ____________________________________ is the Tenant ("Tenant") and
_____________________________________________ is the Landlord ("Landlord") under
that certain Lease Agreement ("Lease") dated ___________________________,
relative to (___________________________) square feet of space in the Plaza
Tower One building located at 6400 X. Xxxxxxx'x Green Circle, Englewood,
Arapahoe County, Colorado, and the following improvements:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(2) Attached hereto as Exhibit "A" is a complete and accurate copy
of the Lease and, except as set forth in such exhibit, there are no other
amendments thereto or agreements relating to the subject matter thereof.
(3) The Lease is in full force and effect and Landlord is not in
default thereunder, except as may be indicated on any attached addendum. Tenant
has received no notice from landlord that Tenant is in default under the Lease
and Tenant has no present knowledge of any facts which would give rise to or
constitute a breech or default by either party thereunder.
(4) There is no claim of offset or other claim presently existing in
favor or Tenant against Landlord arising out of or relating to the Lease, except
as may be indicated on the attached addendum.
(5) The Lease is for a term of ___________, having commenced on
_______________________, with the present term expiring on
________________________, subject to renewal options as therein provided.
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(6) Rent under the Lease has been paid through
___________________________________________________, subject to adjustment as
therein provided.
(7) Tenant has performed all tenant finish work with regard to the
Premises thereby leased and Tenant has accepted possession and is in occupancy
of such Premises.
(8) Tenant has no option or right of first refusal to purchase the
leased premises.
The undersigned understands that this Certificate may be relied upon by
a purchaser of the leased premises.
Dated at____________________,
TENANT
By:_________________________________,
Its:________________________________,
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EXHIBIT I
HVAC SPECIFICATIONS
Landlord shall provide and operate a first class quality Heating, Ventilation
and Air Conditioning system with service available on a year round basis in all
occupied areas of the building. Remotely operated automated air dampers on each
floor permit Tenant to utilize after hours HVAC service on a floor-by-floor
basis.
The system shall have sufficient cooling and heating capacity to maintain an
average inside temperature of 72 degrees f +/- 2 degrees fdb during summer
outdoor temperatures consistent with 98% ASHRAE standards for Denver, Colorado.
And 70fdb at winter outside temperatures also consistent with 98% ASHRAE
standards for Denver, Colorado and based on internal heat loads generated by
occupancy levels of one person per 140 sq. ft., lighting load of 1.5 xxxxx per
square foot and miscellaneous power loads equivalent to a heat output of 4.5
xxxxx per square foot. Outdoor air ventilation shall be consistent with ASHRAE
Standard 62-1989.
The system tonnage is based on the calculated building loads, plus additional
capacity for Tenant's supplemental cooling requirements as needed. The building
includes general exhaust capability for Tenant's use for reproduction,
photocopy, computer room fire suppressant exhaust and other types of equipment
requiring special exhaust.
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EXHIBIT J
CORE AND SHELL
"Core and Shell" shall include the following:
1. At least two drinking fountains on each Floor of the Building.
2. Lavatories: At least one Ladies' and one Men's room on each
Floor of the Building, including all ceilings, vanities,
fixtures, trim, lighting, and all plumbing and mechanical
systems and facilities.
3. Telephone: Landlord will furnish and install a telephone company
frame room in the Building and conduit to telephone closets on
each Floor.
4. All electrical facilities and equipment.
5. Core:
(a) Full height solid oak fire-rated doors and first
quality, heavy duty butts, jambs and closers, including
doors for mechanical, electrical, telephone and
janitor's rooms, in addition to stairwells.
(b) Sound attenuation consistent around core to provide a
level of NC/37.
(c) Exit signs at core as required, including emergency
power requirements for exiting.
(d) Locking devices and closers for all exit, stairwell and
electrical/telephone doors.
6. All HVAC systems and facilities
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7. All structural components of the Building, including shaft space
to accommodate Tenant's riser requirements for private
telephone.
8. Lobby: Stainless elevator doors completed with factory-applied
finishes, Landlord to advise Tenant of any deviation in standard
measurements of frames and Jambs.
9. Space clear of all pipes and ductwork including lighting,
Landlord's' systems for HVAC, electrical and sprinklers, to
provide for nominal ceiling height of 9'0".
10. All pipe sleeves in beams and walls to be packed tight,
11. A curtain wall completely installed which shall be energy
efficient and watertight under all design conditions.
12. All fire and life safety systems and facilities.
13. All plumbing and natural gas systems and facilities, including
access outside the core to domestic hot and cold water,
drainage and vent systems (No natural gas service is available
above the first floor level of the Building),
14. Blinds: Clean, operable vertical blinds for all exterior windows
and perimeter walls in the applicable Floors of the Leased
Premises.
15. All mechanical, electrical, escalator, base building systems.
16. Elevators: Elevators will provide a 28-30 second interval and
handle 13 percent of the population in a 5 minute period in
accordance with a population density of one (1) person per 150
square feet.
17. General exhaust requirements for reproduction, photocopy,
conference room and other types of equipment requiring special
exhaust systems in the Leased Premises.
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EXHIBIT K
CONSTRUCTION PROCEDURES
[See Attached]
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PLAZA TOWER ONE
Contractor Procedures
GENERAL INFORMATION
Plaza Tower One is a facility which is very customer focused. We pride in our
continued effort to please our clients and keep their best interests in mind. As
we all know, construction can be a very intrusive process and it takes great
patience and preplanning to anticipate it's effect on the existing tenant base.
To that end, procedures have been established to ensure the necessary steps are
in place to anticipate the impact of each project on the adjacent tenancy.
Chevron as a corporation is extremely focused on safety. Another important
aspect of construction preplanning is anticipating the risks inherent to each
job. Plaza Tower has established a work permit form to help CONTRACTORs assess
risks, consider safety concerns and communicate to the building engineers which
systems they will be affecting. The second page of the work permit is a "job
site check list". This check list asks several questions related to potential
safety concerns. This form is filled out by the mechanical, plumbing, fire
safety and electrical subCONTRACTORs and turned in to the building engineers
office prior to the beginning of each construction job.
Along with the work permit, the building also enforces lock out/log out for
those trades. Each of these CONTRACTORs will follow the procedure as it is
discussed in the attached documentation.
Through out construction, your primary building contact will be Xxxxxxx
Xxxxxxxxx. She is the Construction Project Mfr. for Chevron (Landlord
Representative) and is responsible for obtaining the necessary documentation for
the project, overseeing the day-to-day construction of the project on behalf of
the building and communicating with our tenants on possible impact to them. You
can reach her at (000) 000-0000.
BUILDING RULES & REGULATIONS
A document is enclosed which discusses the protocol for CONTRACTORs in the
building. This document discusses procedures for after hours work, notices we
require for adjacent or affected tenants as well as written authorization from
our tenants for access to their suite after hours. Please read it thoroughly.
APPROVED LIST OF BIDDERS
Chevron pays close attention to the mechanical, plumbing and electrical
CONTRACTORs who work in the building. By limiting the number of CONTRACTORs who
work on the building systems, we have been successful in maintaining the
integrity of the building and our tenants have experienced very few problems
during construction. A list of preferred CONTRACTORs is enclosed.
101
BUILDING SUPPLIED MATERIALS FORM
Chevron maintains an inventory of building standard items such as light
fixtures, ceiling tile and grid tee materials. These are specialty items which
typically have a 6 - 8 week lead time. The building has elected to stock these
items so that construction projects are not delayed unnecessarily. Prior to the
beginning of each project, the general CONTRACTOR will estimate the number of
these items he will need to complete the job. During the construction of the
space, the project superintendent will fill out a "Building Supplied Materials"
form to request the amount of product he will need for the project. He will
submit that estimate to the Landlord Representative. The product is charged to
the job when the project is complete.
Many items are listed on the form. Please contact the Construction Project Mgr.
prior to submitting final pricing for the project, to ensure an adequate stock
of these items is available for your project.
LOCK OUT/TAG OUT PROCEDURES
The Plaza Tower One team put this document together to instruct all mechanical,
plumbing and electrical CONTRACTORs on our lock out/tag out procedures. The
building engineer supplies the locks, logs, and signs to the CONTRACTOR after
the CONTRACTOR has submitted a completed work permit for the job. Adequate
notice is required prior to scheduling work. A copy of the work permit is
enclosed.
Please read through all of the enclosed documentation. If you have any
questions, please call Xxxxxxx Xxxxxxxxx, Construction Project Manager for
Chevron Real Estate Mgt. Company prior to commencing any work. You can reach her
at (000) 000-0000.
102
CHEVRON REAL ESTATE MANAGEMENT COMPANY
Plaza Tower One Rules and Regulations
1. Before performing any work, CONTRACTOR shall sign in the CONTRACTOR Work
Log at the lobby security console. Work completed Monday through Friday
must be entered the day prior to the work being completed and for after
hours work or weekend work it should be entered at least one week ahead
of time after being approved by the Landlord Representative. CONTRACTOR
supervision will be maintained at all times.
2. Any CONTRACTOR performing work on any of the following systems shall
check in with the Lead Building Engineer at the beginning and end of
every work day.
a. Fire Alarm
b. Fire Sprinkler
c. Electrical
d. HVAC
e. Plumbing
3. The sidewalks, walks, plaza entries, corridors, concourses, ramps,
staircases, and elevators shall not be obstructed or used for any
purpose other than ingress and egress to and from the Premises. No
bicycle or motorcycle shall be brought into the Building or kept on the
Premises without the consent of Real Estate Management.
4. No freight, furniture or bulky matter of any description will be
received into the Building through the front doors or carried into the
passenger elevators including ladders and hand trucks. The freight
elevator is available daily or can be scheduled through the Landlord
Representative for extended periods if requested in advance. Elevator
doors are not to be pried or propped open in any manner.
5. Landlord Representative shall have the right to prescribe the weight,
position and manner of installation of building materials and/or other
heavy equipment which, if considered necessary by Landlord
Representative, shall be installed in a manner which shall insure
satisfactory weight distribution. All damage done to the Building by
reason of overloading a floor shall be repaired at the expense of
CONTRACTOR. The time and manner of moving heavy equipment or material
shall be subject to prior approval of Landlord Representative.
6. CONTRACTOR shall use no other method of heating or cooling the premises
than that supplied by the building.
7. Building Management shall have the right to prohibit any advertising by
CONTRACTOR which, in reasonable opinion, tends to impair the reputation
of the Building or the desirability of its offices. Any such requests
must be submitted in writing and approved before implementation.
103
8. Canvassing, soliciting or peddling in the Building is prohibited and
CONTRACTOR shall cooperate to prevent same.
9. CONTRACTOR shall not bring or permit to be brought or kept in or on the
Premises any inflammable, combustible, corrosive, caustic, poisonous or
explosive fluid, material, chemical or substance, or cause or permit any
odors to permeate in or emanate from the Premises.
10. No boring or cutting through floors of the Building shall be permitted
without prior consent of Landlord Representative (which consent shall
not be unreasonably withheld) and as Landlord Representative may
reasonably direct. X-rays and core drills will be allowed between the
hours of 8:00 p.m. and 6:00 a.m. A one week notice is requested for both
of these items. All cores existing or new must be fire safed. CONTRACTOR
supervision will be maintained at all times.
11. CONTRACTOR shall give immediate notice to Landlord Representative in
case of accidents in the Building or of defect therein or in any
fixtures or equipment or of any known emergency in the Building.
12. CONTRACTOR shall cooperate fully with Landlord Representative directives
upon the occurrence of a Life Safety emergency situation.
13. Landlord Representative shall have the right to challenge CONTRACTOR
when removal of other than CONTRACTOR property from the Building is
suspected.
14. No alcohol, illegal drugs or firearms are to be brought into the
building by CONTRACTOR or personnel.
15. CONTRACTOR shall become fully familiar with and shall fully comply with
the building security procedures.
16. CONTRACTOR shall confine operations at the site to areas permitted by
law, ordinances, permits and the Contract Documents and shall not
unreasonably encumber the site with any materials or equipment.
17. CONTRACTOR at all times and at minimum on daily basis shall keep the
premises free from accumulation of waste materials or rubbish caused by
his operations. At the completion of Work he shall remove all his waste
material and rubbish from and about the Project as well as all his
tools, construction equipment, machinery and surplus materials.
18. If the CONTRACTOR fails to clean up at the completion of the Work,
Building Management may do so and the cost thereof, including service
fee, shall be charged to the CONTRACTOR.
104
19. Should the CONTRACTOR wrongfully cause damage to the work or property of
the Building, or to other work on the site, the CONTRACTOR shall
promptly remedy such damage.
20. CONTRACTOR shall promptly correct all Work rejected by the Landlord
Representative as defective or as failing to conform to the Contract
Documents, whether observed before or after Substantial Completion and
whether or not fabricated, installed or completed. CONTRACTOR shall bear
all costs for correcting such rejected Work, including compensation for
the additional Building Management work made necessary thereby.
21. Any questions regarding these Rules and Regulations or items omitted
should be directed to the Landlord Representative.
22. CONTRACTOR shall not perform any cutting, burning, or dust generating
activities without prior permission of Landlord Representative in order
that necessary mechanical and fire alarm systems be bypassed.
23. CONTRACTOR shall provide necessary protection for all existing building
finishes including temporary covers such as wood or Masonic, for floor
surfaces and wall surfaces when moving heavy loads.
24. CONTRACTOR may use the Plaza Tower One parking structure. CONTRACTOR
will be allowed to park on the first and second levels only. The
employee will sign the ticket with his name and company name and present
it to the parking attendant upon exiting the structure.
25. CONTRACTOR is not to park vehicles in the loading dock or exterior dock
apron except for loading and unloading. No parking is allowed in the
drive way in the front of the building. This is a fire lane and
violators will be ticketed by the local police.
26. CONTRACTOR will not smoke inside the building at any time. Smoking is
permitted outside the building in designated areas.
26. CONTRACTOR shall not complete any oil-based painting or odorous work
until after normal building hours (between 6:00 p.m. and 6:00 a.m.
weekdays and after 1:00 p.m. on Saturday during the weekends).
27. CONTRACTOR to complete all wood staining and finishing off site.
105
CHEVRON REAL ESTATE MANAGEMENT COMPANY
List of Preferred Bidders
Plaza Tower One
Electrical Xxxxxxxx Electric
Grand Electric
Mechanical Jebco Mechanical
Accurate Air
Xxxxxx
Fire Protection Western States Fire Protection
Mile High Fire Protection
Grinnel Fire Protection
ABC Fire Protection
Air Balance Tab Services Inc.
Double T Balancing
Plumbing Belcon Mechanical, Inc.
Front Range Plumbing
Total Plumbing
Braconier Plumbing
Painting Xxx Xxxxx Painting
Craftsman Painting
Multiwork European Finish Inc.
Creative Woodworking
New World Multiworks
Design Studies
Glass/Glazing Builder's Glass
Denver West Glass
Gump Glass
Horizon Glass
Floor Coverings CSI
CDS
Perfection Carpet (Installers only)
106
Date: 5/1/94
CREMCO_________.
PLAZA TOWER ONE
Lockout (and or Tagout) Procedure
BASIC RULES FOR USING LOCKOUT OR TAGOUT SYSTEM PROCEDURE
All equipment will be locked out and or tagged out to protect against accidental
or inadvertent operation when such operation could cause injury to personnel.
BASIC RULES
This program applies to all employees and contractors working at PTO:
- Work Permit shall be filled out and signed before any work is to begin.
- Additional Work Permits shall also be filled out and signed before any
work is to begin that affect building systems.
- All Work Permits shall be signed by both parties upon completion of
work.
- Any person who causes injury to themselves or another because of failure
to lockout and or tagout, shall be considered negligent and shall be
immediately removed from project
- Each contractor shall be solely responsible for their work and for the
safety of their employees. This policy shall be presented to all new
employees immediately upon hire, and to all existing employees during
periodic safety meetings. Documentation of those safety meetings will be
placed on file.
- Under no circumstances shall ignorance of these policies be considered
an excuse for failure to adhere to this policy.
- Violators of this standard procedure will be subjected to one official
warning for the first violation. The second violation will be grounds
for immediate removal from the project
- Do not attempt to operate any switch, valve, or other energy isolating
device if it is locked or tagged out.
1
107
PLAZA TOWER ONE
Lockout (and or Tagout) Procedure
PURPOSE
This procedure establishes the minimum requirements for the lockout and or
tagout of energy isolating device(s). It shall be used to ensure that machines,
valves, and equipment are isolated from all potentially hazardous energy, and
locked out and or tagged out before employees perform any service or maintenance
activities where the unexpected energization, start-up or release of stored
energy could cause injury. If the employee's company lockout and or tagout
procedure exceeds these minimum requirements, that employee must abide by them.
RESPONSIBILITY
The following list of employees are authorized to lockout/tagout electrical and
mechanical equipment at PTO
Name Job Title
---- ---------
Xxxx Xxxxx Chief Engineer
Xxxxx Xxxxxxx Assist. Chief Engineer
Xxxxx XxXxxxxx Electrician
PREPARATION FOR WORK PERMIT AND LOCKOUT/TAGOUT
One person in the list will be contacted by the person requesting Work Permit
beginning with Xxxx Xxxxx, Chief Engineer, by calling 000-0000 or call 000-0000
to have anyone on the list paged at least 24 hours in advance.
One of the employees authorized to lockout/tagout equipment will meet with
person requesting Work Permit and assume the responsibility for ensuring that
the following steps are complied with:
Person authorizing Work Permit will conduct a survey to locate and identify all
isolating device(s) to be certain which switch(s), valve(s) or other energy
isolating device(s) apply to the equipment to be locked and or tagged out. More
than one energy source (electrical, mechanical, or other) may be involved.
2
108
PLAZA TOWER ONE
Lockout (and or Tagout) Procedure
SEQUENCE OF LOCKOUT AND OR TAGOUT SYSTEM PROCEDURE
1) Person requesting equipment lockout/tagout will fill out and sign Work
Permit located at front lobby desk in designated folder and return it to
one of the employees authorized to lockout/tagout equipment at least 24
hours in advance.
2) Employees authorizing Work Permit will notify all affected employees
that a lockout and or tagout system is going to be utilized and the
reason therefore.
3) Employee authorizing lockout/tagout shall know the type and magnitude of
energy that the machine or equipment utilizes and understand the hazards
thereof or shall delay the work until he/she does.
4) If the machine or equipment is operating, the employee authorizing
lockout/tagout will shut it down by the normal stopping procedure
(depress stop button, open toggle switch etc.)
5) Employee authorizing lockout/tagout may then operate the switch(s),
valve(s), or other energy isolating device(s) so that the equipment is
isolated from its energy sources). Stored energy (such as that in
springs, elevated machine members, rotating flywheels, hydraulic
systems, and air, gas, steam, or water pressure, electricity, etc.) must
be dissipated or restrained by methods such as repositioning, blocking,
bleeding down, etc.
6) Employee authorizing lockout/tagout will lockout and or tagout the
energy isolating device(s) with individual lock(s) and or tag(s). Person
requesting equipment lockout and or tagout will then also install their
lock(s) and or tag(s).
7) The equipment is now locked out and or tagged out.
RESTORING MACHINES OR EQUIPMENT TO NORMAL OPERATIONS
1) After the servicing and/or maintenance is complete and equipment is
ready for normal production operations, one of the listed authorized
lockout/tagout employees will check the area around the machines or
equipment to ensure that no one will be exposed to a hazard that can
result from re-energizing a circuit, filling a line, etc.
3
109
PLAZA TOWER ONE
Lockout (and or Tagout) Procedure
2) After all tools have been, removed from the machine or equipment, guards
have been reinstalled and employees are in the clear, authorized
lockout/tagout employee will remove all lockout and or tagout device(s),
operate the energy, isolating device(s) to restore energy to the
machine or equipment.
PROCEDURE INVOLVING MORE THAN ONE PERSON
In the preceding steps, if more than one individual requests to lockout and or
tagout the same equipment, employee authorizing lockout/tagout will provide
multiple lockout/tagout device(s). Employee authorizing lockout/tagout will
place his own personal lock and or tag on the multiple lockout/tagout device(s).
Persons requesting lockout/tagout will then place their lock and or tag on the
same multiple lockout/tagout device(s). Once all other locks are removed,
authorized lockout/tagout employee will check the area. If all tools have been
removed from the machine or equipment, guards have been reinstalled and
employees are in the clear, authorized lockout/tagout employee will remove all
lockout/tagout device(s), operate the energy isolating device(s) to restore
energy to the machine or equipment.
4
110
PLAZA TOWER ONE
Electrical Room Lockout (and or Tagout) Procedure
This program applies to all employees and contractors working on electrical
equipment at PTO:
- Only authorized personnel shall have access to electrical equipment or
electrical equipment rooms, vaults, cabinets, and disconnects.
- Any unauthorized individual caught in an electrical equipment room will
be subject to immediate removal from project.
- Authorized personnel shall be those individuals directly in charge of or
responsible for the work contained within an electrical equipment room,
or the work of or associated with any piece of electrical equipment.
- All electrical equipment and electrical equipment room doors shall
remain closed locked at all times.
- Every individual working on projects shall be part of the safety team by
being aware and closing any electrical equipment room doors which happen
to be left open.
- Only individuals skilled and trained in the electrical trades shall be
allowed access to electrical equipment or electrical equipment rooms,
except for those individuals which may be performing work on the
supplementary aspects of the equipment room. This work is to be
coordinated through the electrical supervisor in charge of the area.
Where work in an area with exposed live parts is required, then an
electrician shall be present at all times during this work.
- Electrical room or rooms containing electrical equipment which is
energized and may be or is having work performed on it shall have a
conspicuous sign on the door stating, in affect "Danger - Energized
Electrical Equipment", electrical voltage, and name of electrical
contractor.
- Each electrical panelboard, switchboard, and switchgear shall have a
affixed to the exterior front an appropriate ledger with columns to
allow documentation of the following information:
5
111
PLAZA TOWER ONE
Electrical Room Lockout (and or Tagout) Procedure
a) Electrical supervisor and company name in charge of the
authorized electrical person listed.
b) Authorized electrical person and company name in charge of
energizing or de-energizing the listed devices or equipment.
c) Date said equipment or device(s) was (were) energized or
de-energized with authorized electrical person's signature.
There shall be two separate columns, one for energization and
one for de-energization.
d) The ledger shall identify the name of the equipment to which it
applies, and its appropriate voltage characteristics.
- Any work requiring de-energizing of electrical panelboards,
transformers, switchboards, or switchgear shall have Work Permit.
- Once an electrical device or equipment is logged as de-energized, it may
NOT, under any circumstances, be re-energized without the express
consent of the individual (or individual's supervisor) who de-energized
the device or equipment. This consent shall be attested to, in writing,
on the energization/de-energization ledger.
- Upon initial energization, each panelboard, switchgear, switchboard, and
motor control center shall have printed documentation, conspicuously
located, stating the word 'HOT' in letters at least 2 inches in height.
- Each and every piece of equipment which is or eventually be connected to
a source of electrical energy shall be considered HOT, unless the
contrary is obvious through visual inspection or through a check by
means of an electrical testing device.
Procedures
Control Items:
- The systems noted below are to be used in conjunction when applicable.
6
112
PLAZA TOWER ONE
Electrical Room Lockout (and or Tagout) Procedure
a) Lock or Tree hangers for more than one lock. These types of
locks will be placed on all locking attachments.
b) Tags shall be placed on the original source of energy, i.e.,
panels, motor control center, disconnect control cabinets,
vaults and etc.
- Documentation of procedures below will be placed on file and reviewed
during safety meetings.
c) Breaker tags will be used when locking device or tagging device
cannot be applied. (See attached)
d) Panel/Controlling Cabinets Log Sheet will be attached and
completed prior to performing work on panels. (See attached)
Group Lockout and Tagout Procedures
- The placement of multiple lockout/tagout device(s) must be applied.
- The placement of personal, lockout/tagout device(s) must be applied.
- A personal device to ensure the employee that he or she is in complete
control of their protection scheme.
- An employee's lockout/tagout device informs all other employees that
work is still being performed.
- As long as the device or devices are attached, the authorized person in
charge knows that the work is not complete.
- Until each device(s) in the group operation has been removed, each
employee involved with the servicing is protected.
7
113
PLAZA TOWER ONE
Electrical Room Lockout (and or Tagout) Procedure
- The authorized person in charge must not remove the multiple
lockout/tagout device(s) until each employee in the group operation
removes their personal device(s).
Items Included In Lockout and/or Tagout Systems
- Tags (Tags will be placed to identify plainly the equipment or circuits
being worked upon).
- Breaker tags will be applied when locking device can not be applied,
i.e., lock and tag.
- Panel log sheets must be filled out prior to working on panel or
circuit/circuits. Only authorized persons can log dates in and out.
- Documentation of procedures and previous safety meetings will be placed
on file, and reviewed during safety meetings where all employees are
present.
8
114
Plaza Tower One
Work Permit
No. 94- 000060
---------------------------------------------------------------------------------------------------
Person Requesting Permit Company Name / Position Telephone / Pager Number(s)
---------------------------------------------------------------------------------------------------
General Contractor (if any) Contact Person Telephone / Pager Number(s)
---------------------------------------------------------------------------------------------------
Location of Work Date of Work Time of Work
From: To: From: To:
---------------------------------------------------------------------------------------------------
Type of Work System / Trades Affected
---------------------------------------------------------------------------------------------------
[ ] Maintenance [ ] Building Engineers [ ] Plumbing
[ ] New Construction [ ] Electrical [ ] Fire Protection
[ ] Remodel [ ] Security [ ] Elevators
[ ] Mechanical [ ] Others __________
---------------------------------------------------------------------------------------------------
Description:
---------------------------------------------------------------------------------------------------
Person Requesting Permit Signature Date
---------------------------------------------------------------------------------------------------
Completion/Back in Service Date
---------------------------------------------------------------------------------------------------
PTO Use Only
Isolating Device(s)
[ ] Electrical [ ] Air Pressure [ ] Hot Water [ ] Stored Energy
[ ] Hydraulic [ ] Water Pressure [ ] Natural Gas (Springs, Flywheel, Etc.)
[ ]Others______________________
---------------------------------------------------------------------------------------------------
Remarks;
---------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------
Employees Authorized to Lockout/Tagout Signature Date
---------------------------------------------------------------------------------------------------
Completion/Back in Service Date
---------------------------------------------------------------------------------------------------
cc: Construction Manager
Active File
115
Plaza Tower One
Job Site Check List
Work Permit No. 94-____________________________
----------------------------------------------------------------------------------------------------------------
I. HOUSEKEEPING Person Requesting Person Authorized to
Work Permit Lockout/Tagout
----------------------------------------------------------------------------------------------------------------
a. General Neatness of Working Areas?
----------------------------------------------------------------------------------------------------------------
b. Passage Ways and Walkways Clear?
----------------------------------------------------------------------------------------------------------------
c. Waste Containers Provided?
----------------------------------------------------------------------------------------------------------------
d. Proper Lighting?
----------------------------------------------------------------------------------------------------------------
II. SECURE WORK SITE
----------------------------------------------------------------------------------------------------------------
a. Barricades/Personnel for Traffic Control?
----------------------------------------------------------------------------------------------------------------
b. All Exits Secured as Needed
----------------------------------------------------------------------------------------------------------------
III. SAFETY
----------------------------------------------------------------------------------------------------------------
a. Personal Protection Devices?
----------------------------------------------------------------------------------------------------------------
b. Can it be Done Safely?
----------------------------------------------------------------------------------------------------------------
c. Does Something Have to be Done Before it's Safe?
----------------------------------------------------------------------------------------------------------------
d. Lighting During Job Hours? Job Conditions?
----------------------------------------------------------------------------------------------------------------
e. Public Safety? Fellow Worker's Safety?
----------------------------------------------------------------------------------------------------------------
IV. TOOLS
----------------------------------------------------------------------------------------------------------------
a. Proper Tools for Job?
----------------------------------------------------------------------------------------------------------------
b. Tools in Proper Working Condition?
----------------------------------------------------------------------------------------------------------------
c. All Tools Properly Guarded?
----------------------------------------------------------------------------------------------------------------
d. Electric Tools Guarded? GFI?
----------------------------------------------------------------------------------------------------------------
V. SCAFFOLDING/LADDERS
----------------------------------------------------------------------------------------------------------------
a. Scaffolding has Adequate Planking, Handrails, Toe Boards, and Access?
----------------------------------------------------------------------------------------------------------------
b. Proper Installation? Proper Use?
----------------------------------------------------------------------------------------------------------------
c. In Good Condition? Proper Maintenance?
----------------------------------------------------------------------------------------------------------------
VI. LOCKOUT/TAGOUT
----------------------------------------------------------------------------------------------------------------
a. Knowledge of All Energy Sources?
----------------------------------------------------------------------------------------------------------------
b. Knowledge of All Stored Energy Sources?
----------------------------------------------------------------------------------------------------------------
c. Knowledge of PTO Lockout/Tagout Procedure?
----------------------------------------------------------------------------------------------------------------
d. Knowledge of Your Company's Lockout/Tagout Procedure?
----------------------------------------------------------------------------------------------------------------
e. Other Equipment Affected? Does it Need Lockout/Tagout?
----------------------------------------------------------------------------------------------------------------
VII. OTHER RISKS
----------------------------------------------------------------------------------------------------------------
a. Hazardous Material?
----------------------------------------------------------------------------------------------------------------
b. Public Safety?
----------------------------------------------------------------------------------------------------------------
c. Will it Affect Tenants? Public?
----------------------------------------------------------------------------------------------------------------
d. Will it Affect Other Traders?
----------------------------------------------------------------------------------------------------------------
e. Surrounding Conditions?
----------------------------------------------------------------------------------------------------------------
f. Other Equipment Affected?
----------------------------------------------------------------------------------------------------------------
g. Time of Day?
----------------------------------------------------------------------------------------------------------------
h. Weather Conditions?
----------------------------------------------------------------------------------------------------------------
i. Employees Properly Trained?
----------------------------------------------------------------------------------------------------------------
Person Requesting Permit Signature________________________________________________________Date__________________
Person Authorized to Lockout/Tagout Signature_____________________________________________Date__________________
116
NER SUPPLIED MATERIALS I. (HISTORY) Project:________________
Material Requested:_________ Returned:_________
Unit Total
Description Quantity Cost Value
----------------------------------------------------------------------------------------------------------------
Doors & Hardware
----------------------------------------------------------------------------------------------------------------
3' X 9' Plain Sliced Red Oak Door $ 168.00
----------------------------------------------------------------------------------------------------------------
Pair Building Standard Butts $ 20.00
----------------------------------------------------------------------------------------------------------------
Schlage L9010 06A Passage Set $ 123.00
----------------------------------------------------------------------------------------------------------------
Schlage L9453 06A Locket $ 170.00
----------------------------------------------------------------------------------------------------------------
Best Cylinder (1E 7 4C265) $ 16.00
----------------------------------------------------------------------------------------------------------------
Door Closure with Cover $ 89.00
----------------------------------------------------------------------------------------------------------------
Manual Flush Bolt (set) $ 24.00
----------------------------------------------------------------------------------------------------------------
Automatic Flush Bolt (set) $ 90.00
----------------------------------------------------------------------------------------------------------------
Coordinator $ 55.00
----------------------------------------------------------------------------------------------------------------
Astragel $ 25.00
----------------------------------------------------------------------------------------------------------------
Magnetic Door Holder $ 83.00
----------------------------------------------------------------------------------------------------------------
Door Stop $ 4.00
----------------------------------------------------------------------------------------------------------------
Smoke Seal $ 15.00
----------------------------------------------------------------------------------------------------------------
....awall System
----------------------------------------------------------------------------------------------------------------
Basic Wall Material $ 39.00
----------------------------------------------------------------------------------------------------------------
Wall Start $ 31.00
----------------------------------------------------------------------------------------------------------------
Outside Corner $ 48.00
----------------------------------------------------------------------------------------------------------------
Door Frame $ 191.00
----------------------------------------------------------------------------------------------------------------
Carpet Tile $ 8.23
----------------------------------------------------------------------------------------------------------------
Tiling Material
----------------------------------------------------------------------------------------------------------------
2 X 5 Tile (100 s.f. per bundle) $ 0.53
----------------------------------------------------------------------------------------------------------------
2 X 3 Tile (60 s.f. per bundle) $ 0.68
----------------------------------------------------------------------------------------------------------------
Main Runner (12' - 240 L.F./Carton) $ 0.40
----------------------------------------------------------------------------------------------------------------
Tees: (2' - 140LF/Carton) $ 0.32
----------------------------------------------------------------------------------------------------------------
Tees: (3' - 120LF/Carton) $ 0.32
----------------------------------------------------------------------------------------------------------------
Tees: (18' - 105LF/Carton) $ 0.32
----------------------------------------------------------------------------------------------------------------
Tees: (5' - 200LF/Carton) $ 0.52
----------------------------------------------------------------------------------------------------------------
Tees: (4' - 160LF/Carton) $ 0.52
----------------------------------------------------------------------------------------------------------------
....AC
----------------------------------------------------------------------------------------------------------------
7" Spin-in $ 4.44
----------------------------------------------------------------------------------------------------------------
7" Flow (26' Box) $ 43.75
----------------------------------------------------------------------------------------------------------------
2 x 4 Supply Trouffer $ 145.00
----------------------------------------------------------------------------------------------------------------
2 x 2 Supply Trouffer $ 73.00
----------------------------------------------------------------------------------------------------------------
Electrical
----------------------------------------------------------------------------------------------------------------
2 x 4 Light Fixture w/ Whip & Parabolic $ 117.00
----------------------------------------------------------------------------------------------------------------
2 x 2 Light Fixture w/ Whip & Parabolic $ 83.00
----------------------------------------------------------------------------------------------------------------
Parabolic Lenses $ 29.00
----------------------------------------------------------------------------------------------------------------
Track Lights $ 87.00
----------------------------------------------------------------------------------------------------------------
Section of Track for Lights $ 50.00
----------------------------------------------------------------------------------------------------------------
PT-120 D1PCO916 Duplex Drop $ 10.00
----------------------------------------------------------------------------------------------------------------
SA-277 EXP06 Switch Drop $ 11.00
----------------------------------------------------------------------------------------------------------------
MSC-277 Hardwire $ 10.00
----------------------------------------------------------------------------------------------------------------
MSC-277/E12H11 Fixture Whip $ 20.00
----------------------------------------------------------------------------------------------------------------
CE-277/EH09 Extender $ 16.00
----------------------------------------------------------------------------------------------------------------
CE-277 Hardwire $ 10.00
----------------------------------------------------------------------------------------------------------------
Exit Light $ 90.00
----------------------------------------------------------------------------------------------------------------
Other/Miscellaneous
----------------------------------------------------------------------------------------------------------------
Corridor Polomix $ 66.00
----------------------------------------------------------------------------------------------------------------
TOTAL $ 0.00
----------------------------------------------------------------------------------------------------------------
Approved by Project Manager___________________________________________________________Date______________________
Signed for by Building Engineer_______________________________________________________Date______________________
Check out by G.C. Representative______________________________________________________Date______________________
----------------------------------------------------------------------------------------------------------------
117
EXHIBIT L
CHEVRON SELF-ADMINISTERED CLAIMS ADJUSTMENT PROGRAM
[See Attached]
L - 1
118
[CHEVRON CORPORATION LETTERHEAD]
April 12, 1995
Contract(s) between Echo Bay Management
Corp., and Huntington Beach Company, a
California corporation, (Landlord) by its
managing agent, Chevron Real Estate
Management Company, a division of
Chevron U.S.A. Inc.
-----------------------------------------
Echo Bay Management
x/x Xxxx X. XxXxxxx
Xxxxx Xxxxxx xxx Xxxxxx
Xxxxx 0000
000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Gentlemen:
Chevron Corporation and its subsidiaries are covered for property and liability
exposures through major worldwide insurance programs with large deductibles.
Losses that fall within these deductible levels, including those for, which a
Chevron company is contractually liable, are paid through the financial
resources of the Company and are administered by Chevron Corporation under its
Self-Administered Claims Program, hereinafter referred to as the Program.
This is to advise you Chat the property/liability insurance requirements of the
subject contract(s) fall within the deductible levels of Chevron's insurance
programs. Therefore, losses for which Chevron is responsible under the contract
will be handled under the above-described Program. The scope of this program is
equal to the insurance requirement, of the subject contract.
We further advise you Chat Workers' Compensation insurance requirements for
Chevron companies are satisfied through insured/self-insured programs depending
upon the location of the employee's workplace. U.S. Xxxxxxxxx and Harbor
Workers' Act coverage is self-insured.
Unless cancelled earlier, this letter will remain in effect until the expiration
or earlier termination of the subject contract (or any renewal thereof), if this
program is cancelled or materially changed, we will provide you with 30 days'
written notice.
Yours truly,
/s/ [Signature Illegible]
119
FIRST AMENDMENT TO PLAZA TOWER OFFICE LEASE
THIS FIRST AMENDMENT TO PLAZA TOWER ONE OFFICE LEASE is entered into and
becomes effective this 24th day of May, 1995, by and between HUNTINGTON BEACH
COMPANY, a California corporation, ("Landlord"), by its managing agent, Chevron
Real Estate Management Company a division of Chevron U.S.A. Inc., and ECHO BAY
MANAGEMENT CORP., a Delaware Corporation ("Tenant").
WHEREAS, Landlord and Tenant entered into an Office Lease agreement
dated April 21, 1995 (the "Lease") pursuant to which Landlord agreed to lease
and Tenant agreed to hire certain office space located in the Plaza Tower One
office building located in Arapahoe County, Colorado (the "Leased Premises");
and WHEREAS Landlord and Tenant wish to amend the Lease as set forth below.
NOW THEREFORE, in consideration of the foregoing premises, the terms and
conditions provided herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. LEASED PREMISES:
a. Paragraph B of Section 1. (Definitions) is hereby deleted and
the following is substituted therefor:
A. "Leased Premises" shall mean the interior space shown
outlined in red on the floor plan of the Tower portion of the Building
shown on Exhibit B, attached hereto, containing approximately 58,793
rentable square feet, amounting to approximately 54,684 BOMA usable
square feet (computed by measuring to the finished surface of the office
side of the corridor and other permanent walls, to the center of
partitions that separate the Leased Premises from adjoining usable
areas, and to the inside surface of the exterior Building glass, with no
deductions made for columns and projections necessary to the Building),
plus the appurtenant right to use, in common with others, and the
entries, sidewalks, curb areas, driveways, cafeterias, health club
facilities (subject to the execution by Tenant of the form release and
indemnity agreement used from time to time by Landlord regarding the
use of such health club facilities by Tenant's employees), risers,
conduit, and other public portions of the Improved Area (the "Common
Areas").
b. Exhibit B of the Lease is hereby deleted and Exhibit B of this
Amendment is substituted therefor.
Page 1 of 7
120
c. Paragraph M of Section 1. (Definitions) is hereby deleted and
the following is substituted therefor:
M. "Tenant's Total Square Footage" shall mean 58,793 square
feet which amount is equal to the sum of the square footage in the
Leased Premises, an allocated portion of Common Area square footage on
the floors on which the Leased Premises are located, and an allocated
portion of the square footage of trio remaining Common Areas in the
Tower.
d. Paragraph O of Section 1. (Definitions) is hereby deleted and
the following is substituted therefor:
O. "Tenant's Pro Rata Share" shall mean 13.0671% calculated
by dividing Tenant's Total Square Footage by the Total Square Footage of
the Tower.
2. Base Rent: Paragraph L of Section 1. (Definitions) is hereby deleted and
the following is substituted therefor:
B. "Base Rent" shall mean the following for the period indicated:
Period $/Sq.Ft./year: $/month
------ ----------------------
Years one through five: per rentable sq.ft. per year
per month
00 per year
Years six through ten: per rentable sq.ft. per year
per month
per year
3. Parking: Section 18 is hereby deleted and the following is substituted
therefor:
Landlord shall provide to Tenant non-exclusive parking within the
Parking Garage contiguous to the Building at a ratio of one space for each 330
rentable square feet contained from time to time within the Leased Premises
(including any additional space taken by Tenant pursuant to Paragraph 45 or
Paragraph 46 hereof) (the "Regular Spaces"), and an additional 81 short term
parking spaces in Close proximity to the elevators, which shall be available for
use by Tenant's visitors at no cost for up to two hours. The Regular Spaces
(which, as of the Commencement Date, shall be 178 spaces) will be provided by
Landlord for use by the Tenant at a charge of ________ per space per month
during the first sixty (60) months of the Lease Term and ________ per space per
month during months 61 through 120. Subject to Landlord's
Page 2 of 7
121
rules and regulations adopted from time to time pursuant to Paragraph 17
Tenant's employees, invitees and licensees shall be entitled to reasonable use
of such parking spaces.
4. The last sentence of the last paragraph of Section 6.1 of Exhibit C,
Work Agreement is hereby deleted in its entirety and all Relinquishments (as
described in Section 6.1 of Exhibit C, Work Agreement) have been obtained and
completed in a form that is mutually satisfactory to both Landlord and Tenant
under the Lease. Neither Landlord nor Tenant shall have a right to terminate the
Lease pursuant to Section 6.1 of Exhibit C to the Lease, Work Agreement.
5. The following is added to Section 3.1 of Exhibit C, Work Agreement:
Notwithstanding anything herein to the contrary, that portion of the
Leased Premises shown on Exhibit B as "The US West Space" shall not be delivered
to Tenant until vacated by the occupying tenant. Furthermore, the Leased
Premises, as that term is defined in this Amendment, shall not include the US
West Space until such delivery to Tenant occurs and that portion of Rent
attributable to the US West Space shall be abated accordingly until such
delivery.
6. No Further Modifications. Except as otherwise set forth in this
Amendment, the terms and conditions of the Lease and the Work Agreement remain
unchanged and in full force and effect.
Page 3 of 7
122
Landlord and Tenant have executed this Amendment as of the data first
written above.
LANDLORD: HUNTINGTON BEACH COMPANY, a California
Corporation, by its agent Chevron Real Estate
Management Company, a division of Chevron U.S.A.
Inc., a Delaware Corporation
By: /s/ [Signature Illegible]
---------------------------------------------
Its: Vice Presdent
--------------------------------------------
TENANT: ECHO BAY MANAGEMENT CORP.,
a Delaware Corporation
By: /s/ [Signature Illegible]
---------------------------------------------
Its: Controller
--------------------------------------------
By: /s/ [Signature Illegible]
---------------------------------------------
Its: Senior Vice President, Finance
--------------------------------------------
Page 4 of 7
123
LEASED PREMISES
(TENTH (10TH) FLOOR)
[LEASED PREMISES TENTH (10TH) FLOOR DIAGRAM]
Page 5 of 7
124
LEASED PREMISES
(NINTH (9TH) FLOOR)
[LEASED PREMISES NINTH (9TH) FLOOR DIAGRAM]
Page 6 of 7
125
EXHIBIT B
LEASED PREMISES
(FIFTH (5TH) FLOOR)
[LEASED PREMISES FIFTH (5TH) FLOOR DIAGRAM]
Page 7 of 7
126
EXHIBIT A
SECOND AMENDMENT TO PLAZA TOWER OFFICE LEASE
THIS SECOND AMENDMENT TO PLAZA TOWER ONE OFFICE LEASE is entered into
and becomes effective on the later of the Delivery Date, as such term is defined
below, and the 15th day of December, 1995, by and between HUNTINGTON BEACH
COMPANY, a California corporation, ("Landlord"), by its managing agent, Chevron
Real Estate Management Company a division of Chevron U.S.A. Inc., and ECHO BAY
MANAGEMENT CORP., a Delaware Corporation ("Tenant").
WHEREAS, Landlord and Tenant entered into an Office Lease agreement
dated April 21, 1995 (the "Lease") and then amended said lease for purposes of
an expansion on May 24, 1995 pursuant to which Landlord agreed to lease and
Tenant agreed to hire certain office space located in the Plaza Tower One
office building located in Arapahoe County, Colorado (the "Leased Premises");
and WHEREAS Landlord and Tenant wish to amend the Lease as set forth below.
NOW, THEREFORE, in consideration of the foregoing premises, the terms
and conditions provided herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Leased Premises:
a. Paragraph B of Section 1. (Definitions) is hereby defaced and
the following is substituted therefor:
A. "Leased Premises" shall mean the interior Space shown
outlined in red on the floor plan of the Tower portion of the Building
shown on Exhibit B attached hereto, containing approximately 64,473
rentable square feet, amounting to approximately 60,696 BOMA usable
square feet (computed by measuring to the finished surface of the office
side of the corridor and other permanent walls, to the center of
partitions that separate the Leased Premises from adjoining usable
areas, and to the inside surface of the exterior Building glass, with no
deductions made for columns and projections necessary to the Building),
plus the appurtenant right to use, in common with others, the entries,
sidewalks, curb areas, driveways, cafeterias, health club facilities
(subject to the execution by Tenant of the form release and indemnity
agreement used from time to time by Landlord regarding the use of such
health club facilities by Tenant's employees), risers, conduit, and
other public potions of the Improved Area (the "Common Areas").
b. Exhibit B of the Lease is hereby deleted and Exhibit B of this
Amendment
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127
is substituted therefor.
c. Paragraph M of Section 1. (Definitions) is hereby deleted and
the following is substituted therefor:
M. "Tenant's Total Square Footage" shall mean 64,473 square
feet, which amount is equal to the sum of the square footage in the
Leased Premises, an allocated portion of Common Area square footage on
the floors on which the Leased Premises are located, and an allocated
portion of the square footage of the remaining Common Areas in the
Tower.
d. Paragraph O of Section 1. (Definitions) is hereby deleted and
the following is substituted therefor:
O. "Tenant's Pro Rata Share" shell mean 14.3296% calculated
by dividing Tenant's Total Square Footage by the Total Square Footage of
the Tower.
2. Base Rent: Paragraph L of Section 1. (Definitions) is hereby deleted and
the following is substituted therefor:
B. "Base Rent" shell mean the following for the periods indicated:
Period $/Sq. Ft./year: $/month
------ -----------------------
Years one through five: per rentable sq. ft. per year
per month
per year
Years six through ten: per rentable sq. ft. per year
per month
per year
3. Parking: Section 18 is hereby deleted and the following is substituted
therefor:
Landlord shall provide to Tenant non-exclusive parking within the
Parking Garage contiguous to the Building at a ratio of one space for each 330
rentable square feet contained from time to time within the Leased Premises
(including any additional space taken by Tenant pursuant to Paragraph 45 or
Paragraph 46 hereof) (the "Regular Spaces"), and an additional 81 short-term
parking spaces in close proximity to the elevators, which shall be available for
use by Tenant's visitors at no cost for up to two hours. The Regular Spaces
(which, as of the Commencement Date, shall be 195 spaces) will be provided by
Landlord for use by the Tenant at a charge of
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128
________ per space per month during the first sixty (60) months of the Lease
Term and ________ per space per month during months 61 through 120. Subject to
Landlord's rules and regulations adopted from time to time pursuant to Paragraph
17 Tenant's employees, invitees and licensees shall be entitled to reasonable
use of such parking spaces.
4. Section 6.1 of the Work Agreement, Exhibit C, is hereby deleted and the
following is substituted therefor:
6.1 Relocation and Relinquishments. In order for the Leased Premises
to be ready for Tenant's use and occupancy at the times contemplated herein, it
will be necessary to take the following actions:
(A) Chrysler Financial Corporation will be relocated from
the space which it currently occupies on the 9th Floor
of the Tower to other space containing 5,904 rentable
square feet on the 16th Floor of the Tower (the
"Chrysler Relocation").
(B) Budget Rent-A-Car will relinquish all expansion and any
other rights and options which it currently has on the
5th Floor of the Tower (the 'Budget Relinquishment').
(C) Sybase will relinquish all expansion and any other
rights and options which it currently has on the 5th
Floor of the Tower, except for a right of first refusal
on the space on the 5th Floor of the Tower
(containing approximately 5,680 rentable square feet)
which will continue to be leased to Xxxxxxxx Pipe &
Steel after the Xxxxxxxx Contraction described in
Paragraph 6.1(D) below (the "Sybase Relinquishment").
(D) Xxxxxxxx Pipe & Steel will contract the space it leases
on the 5th Floor of the Tower to a total of
approximately 5,680 rentable square feet, and will
relinquish all other rights and options which it
currently has on the 5th Floor of the Tower (the
"Xxxxxxxx Contraction").
(E) Missing Link will cancel all rights and options to lease
space on the 5th Floor of the Tower (the "Missing Link
Cancellation").
(F) The Xxxxxxxx Pipe & Steel Lease of approximately 5,680
rentable square feet on the 5th Floor of the Tower will
be terminated not later than December 15, 1995.
5. Section 6.3 of the Work Agreement, Exhibit C, is hereby deleted and the
Page 3 of 9
129
following is substituted therefor:
Payments by Tenant. Tenant shall reimburse Landlord for the following
costs incurred in connection with the Chrysler Relocation, the Budget
Relinquishment, the Sybase Relinquishment, the Xxxxxxxx Contraction, the
Xxxxxxxx Termination and the Missing Link Cancellation:
(1) In connection with the Chrysler Relocation, Tenant shall
reimburse Landlord for all Relocation Costs paid by
Landlord in connection the Chrysler Relocation; provided
that in no event shall Tenant be obligated hereby to pay
any amount greater than $159,400 for such Relocation
Costs. As used herein, the "Relocation Costs" shall mean
all of the actual out-of-pocket costs incurred by
Landlord in connection with the Chrysler Relocation,
including, without limitation, all such costs incurred
by Landlord for: the preliminary space planning; final
space planning; construction documents; mechanical
engineering design and documentation; electrical design
and documentation; demolition; construction management
costs including fees; special consultants costs
(structural, acoustical, vibration, etc.), direct costs
of construction; all required permits and fees; the cost
to move personal effects and furniture; the reprinting
of stationary and related materials; the rewiring and
relocation of telecommunications equipment; and any
other reasonable expenses incurred by Landlord in
connection with such relocation.
(2) In connection with the Budget Relinquishment, Tenant
shall reimburse Landlord for all relinquishment fees and
other costs paid by Landlord for such relinquishment up
to a total of $50,000.
(3) In connection with the Sybase Relinquishment, Tenant
shall reimburse Landlord for all relinquishment fees and
other costs paid by Landlord for such relinquishment up
to a total of $9,750.
(4) Tenant shall have no obligation to pay or reimburse
Landlord for any costs incurred in connection with the
Xxxxxxxx Contraction or the Missing Link Cancellation.
(5) Tenant shall pay to Landlord the unamortized amount of
Landlord's cost in connection with the Xxxxxxxx Pipe and
Steel lease, First Amendment and Second Amendment
covering Suite 580 in the Tower which Tenant is adding
to the Leased Premises by way of this Amendment. Such
costs shall consist of, but not be limited to, all
tenant improvement construction, costs for
Page 4 of 9
130
architectural and engineering fees and leasing
commissions of $214,911.68 for a total payment of such
unamortized portion calculated as of December 15, 1995
of $ 154,348.68.
All costs payable by Tenant hereunder shall be paid by Tenant to Landlord within
ten (10) business days after Tenant's receipt of evidence of the payment of such
costs by Landlord. In connection with the Xxxxxxxx Termination, payment Shall be
due on December 15, 1995.
6. The following is added to Section 3.1 of Exhibit C, Work Agreement:
Notwithstanding anything herein to the contrary, that portion of the
Leased Premises outlined in blue and shown on Exhibit B as "The Xxxxxxxx Space"
(Approximately 5,680 Square Feet) shall not be delivered to Tenant until vacated
by the occupying tenant. Furthermore, the Leased Premises, as that term is
defined in this Amendment, shall not include The Xxxxxxxx Space until such
delivery to Tenant occurs ("The Delivery Date") and that portion of Rent
attributable to the Xxxxxxxx Space shall be abated accordingly until the
Delivery Data.
7. No Further Modifications. Except as otherwise set forth in this
Amendment, the term and conditions of the Lease and the Work Agreement remain
unchanged and in full force and effect.
Page 5 of 9
131
Landlord and Tenant have executed this Amendment as of the date first
written above.
LANDLORD: HUNTINGTON BEACH COMPANY, a, California
Corporation, by its agent, Chevron Real Estate
Management Company, a division of Chevron U.S.A.
Inc., a Delaware Corporation
By:
---------------------------------------------
Its:
--------------------------------------------
TENANT: ECHO BAY MANAGEMENT CORP.
a Delaware Corporation
By:
---------------------------------------------
Its:
--------------------------------------------
By:
---------------------------------------------
Its:
--------------------------------------------
Page 6 of 9
132
EXHIBIT B
LEASED PREMISES
(NINTH (9TH) FLOOR)
[NINTH (9TH) FLOOR FLOOR PLAN]
Page 8 of 9
133
EXHIBIT B
TO
SUBLEASE
[Floor Plan]
SEE THE ATTACHED
B - 1
134
[ECHO BAY MINES FLOOR PLAN]
135
EXHIBIT C
TO
SUBLEASE
[List of Furnishings]
1. Eight office workstations.
2. Round conference table with eight chairs.
3. One secretarial work station.
C - 1
136
EXHIBIT A
CONSENT TO SUBLEASE
THIS CONSENT TO SUBLEASE is entered into as of the 15 day of June, 1998,
by and among PROPERTY COLORADO OBJLW ONE CORPORATION, an Oregon corporation
("Landlord"), ECHO BAY MANAGEMENT CORP., a Delaware corporation ("Sublessor"),
and MPOWER SOLUTIONS, INC., a Delaware corporation ("Sublessee").
WITNESSETH:
WHEREAS, Landlord's predecessor-in-interest, Huntington Beach Company,
entered rate a written lease agreement with Sublessor, dated April 21, 1995, as
amended by that certain First Amendment to Plaza Tower Office Lease dated May
24, 1995, and that certain Second Amendment to Plaza Tower Office Lease dated
December 15, 1995 (collectively, the "Master Lease"), whereby Landlord leased to
Sublessor certain premises in the building known as Plaza Tower One (the
"Building"), consisting of approximately 64,473 rentable square feet (the
"Premises"); and
WHEREAS, Landlord is the owner of the Building and has succeeded to all
of the rights of Huntington Beach Company under the Master Lease; and
WHEREAS, Sublessor desires to sublet a portion of the Premises
containing approximately 3,667 rentable square feet located on the fifth (5th)
floor of the Building (the "Subleased Premises") to Sublessee and Sublessee
desires to lease the Subleased Premises from Sublessor; and,
WHEREAS, the terms of the Master Lease require the consent of Landlord
to any such subletting and Landlord has agreed to grant such consent pursuant
to the terms of this agreement.
NOW, THEREFORE, Landlord hereby consents to the sublease of the
Subleased Premises between Sublessor and Sublessee dated as of May 11, 1998 (the
"Sublease"), a copy of which Sublease is attached hereto and made a part hereof
as Exhibit "A", subject to the following terms and conditions:
1. The Sublease shall be subject and subordinate at all times to
all of the covenants, agreements, terms, provisions and conditions of the Master
Lease and of this Consent. Neither Sublessor nor Sublessee shall do or permit
anything to be done in connection with the Sublease or Sublessee's occupancy of
the Subleased Premises as defined in the Sublease which will violate the Master
Lease or this Consent. Notwithstanding anything in the Sublease to the contrary,
the Sublease shall terminate not later than August 31, 2005, upon expiration of
the Master Lease.
2. Sublessee will not, without prior written consent of Landlord in
each instance, assign the Sublease or sublet the Subleased Premises or any part
thereof.
1 - CONSENT TO SUBLEASE
137
3. Sublessee agrees that no alterations, additions or physical
changes will be made in the Subleased Premises or any part thereof without
Landlord's prior written consent in each instance.
4. This Consent by Landlord shall not be deemed in any way or
manner a release of Sublessor from any and all obligations to be performed by
Sublessor as the Tenant under the Master Lease. The parties hereto agree that
Landlord may, after a default by Sublessor under the Master Lease, collect all
rents due and owing from Sublessee, and such collection thereof shall not be
deemed a waiver of any rights and remedies of Landlord against Sublessor as the
Tenant under the Master Lease.
5. Notwithstanding anything to the contrary contained in the
Sublease, nothing therein, or contained in this Consent, shall enlarge or
increase Landlord's obligations or liability under the Master Lease or
otherwise, and in the event of a default in the Master Lease which results in a
termination thereof, the Sublease and Sublessee's rights in the Subleased
Premises shall also be terminated.
6. Upon the effective date of the Sublease, Sublessee agrees to
comply with all applicable terms and conditions of the Master Lease. This
Consent by Landlord shall not act to bind Landlord to perform any of the
obligations of Sublessor as may be provided in the Sublease.
7. Landlord hereby certifies that, to the best of its actual
knowledge, as of the date of this Consent, Sublessor is not in default under any
of the terms of the Master Lease, nor is there any condition which, with notice
or the passage of time or both, would constitute a default by Sublessor under
the Master Lease.
8. Pursuant to Section 12.C. of the Master Lease, Sublessor shall
pay to Landlord one-half of the total consideration received by Sublessor from
Sublessee during the Sublease term (including revenue derived from any subleased
parking spaces), less the gross rents paid by Sublessor to Landlord during the
period of the Sublease term ("Excess Rents"), after first deducting the
following costs and expenses associated with the subletting of the Subleased
Premises from the consideration received from Sublessee, which costs shall be
reasonable: (i) any improvement allowance or other economic concession paid by
Sublessor to Sublessee; (ii) broker's commissions paid by Sublessor with regard
to the subletting; (iii) attorneys' fees; (iv) lease takeover payments; (v)
costs of advertising the Premises for sublease; and (vi) the unamortized cost of
initial and subsequent improvements to the Premises made by Sublessor.
9. This Consent to Sublease constitutes the entire and complete
agreement of the parties with respect to the subject matter hereof, and
supersedes all prior or contemporaneous agreements, statements, promises,
understandings, arrangements, and commitments, all of which, whether oral or
written, are merged herein.
10. Each party represents that the person executing this Consent for
such party is acting on behalf of such party and is duly authorized to execute
this Consent for such party.
2 - CONSENT TO SUBLEASE
138
11. This Consent may be executed in counterparts, each of which
shall be deemed an original, and all of which when executed and delivered shall
together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Consent to
Sublease to be duly executed as of the day and year first above written.
LANDLORD: PROPERTY COLORADO OBJLW ONE CORPORATION
an Oregon corporation
By: Clarion Partners, LLC,
a New York limited liability company
Its Authorized Agent
By: Clarion Partners, Inc.,
a New York corporation
Its Managing Member
By: /s/ XXXXX X. XXXXXXXX
-------------------------------------
Xxxxx X. Xxxxxxxx
Its Senior Vice President
SUBLESSOR: ECHO BAY MANAGEMENT CORP.,
a Delaware corporation
By: /s/ X. XXXXXXXX
------------------------------------
Name: Xxxx-Xxx X. Xxxxxxxx
Title: Secretary
SUBLESSEE: MPOWER SOLUTIONS, INC.,
By: /s/ XXXXXXX X. XXXX
------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Sr. Vice President
3 - CONSENT TO SUBLEASE
139
EXHIBIT "A"
SUBLEASE AGREEMENT
[See attached]
4 - CONSENT TO SUBLEASE
