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Exhibit 10.22
DENVER PLACE PLAZA TOWER
AGREEMENT OF LEASE
BETWEEN
DENVER-STELLAR ASSOCIATES LIMITED PARTNERSHIP, LANDLORD
AND
XXXXXX.XXX, L.L.C., an Ohio limited liability company, TENANT
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DENVER PLACE PLAZA TOWER
AGREEMENT OF LEASE
BETWEEN
DENVER-STELLAR ASSOCIATES LIMITED PARTNERSHIP, LANDLORD
AND
XXXXXX.XXX, L.L.C., an Ohio limited liability company, TENANT
TABLE OF CONTENTS
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Page
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1. TERM ............................................................. 2
2. BASE RENT ........................................................ 2
3. COMPLETION OF IMPROVEMENTS ....................................... 2
(a) Preliminary Information and Plans ....................... 2
(b) Tenant's Plans .......................................... 2
(c) Engineering Plans ....................................... 3
(d) Completion by Landlord .................................. 3
(e) Special Tenant Work ..................................... 3
(f) Payment for Work ........................................ 4
(g) Access; Acceptance of Work .............................. 4
(h) Delivery of Possession .................................. 4
(i) Occupancy ............................................... 4
4. ADDITIONAL RENT .................................................. 5
(a) Definitions ............................................. 5
(b) Payment of Additional Rent .............................. 6
(c) Adjustment for Services Not Rendered .................... 7
(d) Partial Year ............................................ 7
(e) Disputes ................................................ 7
(f) Place of Payment ........................................ 7
(g) Tenant Taxes ............................................ 7
(h) Delay in Computation .................................... 8
5. USE OF PREMISES .................................................. 8
6. CONDITION OF PREMISES ............................................ 8
7. SERVICES ......................................................... 9
(a) Standard Services ....................................... 9
(b) Additional Services ..................................... 10
(c) Interruption of Services ................................ 11
8. ALTERATIONS ...................................................... 12
9. LIENS ............................................................ 12
10. INSURANCE AND WAIVER OF SUBROGATION .............................. 13
11. FIRE OR CASUALTY ................................................. 13
12. WAIVER OF CLAIMS - INDEMNIFICATION ............................... 14
13. NONWAIVER ........................................................ 15
14. CONDEMNATION ..................................................... 15
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15. ASSIGNMENT AND SUBLETTING ....................................... 15
16. HOLDOVER ........................................................ 17
17. ESTOPPEL CERTIFICATE ............................................ 17
18. SUBORDINATION ................................................... 17
19. CERTAIN RIGHTS RESERVED BY LANDLORD ............................. 18
20. RULES AND REGULATIONS ........................................... 19
21. REMEDIES ........................................................ 19
22. EXPENSES OF ENFORCEMENT ......................................... 21
23. COVENANT OF QUIET ENJOYMENT ..................................... 21
24. SECURITY DEPOSIT ................................................ 21
25. REAL ESTATE BROKER .............................................. 22
26. MISCELLANEOUS ................................................... 22
(a) Rights Cumulative ...................................... 22
(b) Captions and Usage ..................................... 22
(c) Binding Effect ......................................... 22
(d) Lease Contains All Terms ............................... 23
(e) Submission of Lease .................................... 23
(f) No Air Rights .......................................... 23
(g) Modification of Lease .................................. 23
(h) Substitution of Other Premises ......................... 23
(i) Transfer of Landlord's Interest ........................ 23
(j) Recording; Short Form Memo ............................. 23
(k) Covenants and Conditions ............................... 23
(l) Application of Payments ................................ 23
(m) Security Interest ...................................... 24
(n) Governing Law; Partial Invalidity ...................... 24
(o) Hazardous Materials .................................... 24
(p) Warranty Disclaimer .................................... 24
(q) Waiver of Trial by Jury ................................ 24
(r) Force Majeure .......................................... 24
(s) List of Exhibits ....................................... 25
27. TELEPHONE AND TELECOMMUNICATIONS SERVICE ........................ 25
28. NOTICES ......................................................... 26
29. TIME IS OF THE ESSENCE .......................................... 27
ADDENDUM ................................................................. 28
EXHIBIT A ................................................................ 31
EXHIBIT A-1 .............................................................. 32
EXHIBIT A-2 .............................................................. 33
EXHIBIT A-3 .............................................................. 34
EXHIBIT A-4 .............................................................. 35
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EXHIBIT B ................................................................ 36
EXHIBIT "C" .............................................................. 39
EXHIBIT "D" .............................................................. 40
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OFFICE LEASE
DENVER PLACE PLAZA TOWER
DENVER, COLORADO
AGREEMENT OF LEASE made as of the ____ day of __________, 199____
(hereinafter referred to as the "Lease") between Amerimar Realty Management
Co.-Colorado, as agent for DENVER-STELLAR ASSOCIATES LIMITED PARTNERSHIP, a
Delaware limited partnership (hereinafter referred to as "Landlord") and
XXXXXX.XXX, L.L.C., an Ohio limited liability company whose present address is
000 00xx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000 (hereinafter referred to as
"Tenant").
W I T N E S S E T H:
Landlord hereby leases to Tenant, and Tenant hereby accepts from
Landlord, the premises (hereinafter referred to as the "Premises") containing
approximately 21,464 square feet of rentable area and designated on the plan
attached hereto as Exhibit "A" and further described as Suite 1000 in the
building known as Denver Place Plaza Tower (hereinafter referred to as the
"Building") located at 0000 00xx Xxxxxx, Xxxxxx, Xxxxxxxx, 00000, subject to the
covenants, terms, provisions and conditions of this Lease. The Building, the
land upon which it is situated, all surrounding improvements, any garage or
other related improvements and all common areas appurtenant to, associated with
or servicing the Building are hereinafter called the "Real Property" or the
"Property".
In consideration thereof, Landlord and Tenant covenant and agree as
follows:
1. TERM. The term of this Lease (the "Term") shall commence on that
date (the "Commencement Date") which is the date upon which Tenant shall have
commenced occupancy of any part of the Premises, which date is estimated to be
October 1, 1999 (the "Scheduled Commencement Date"), and, unless sooner
terminated as provided herein, shall end, absolutely and without the need for
notice from either party to the other, on January 31, 2005 (the "Termination
Date"); provided, however, that if such term does not result in a Term which is
at least 62 full calendar months, then the Termination Date shall automatically
extend to the last day of the 62nd full calendar month following the
Commencement Date.
2. BASE RENT. Subject to adjustment as herein provided, the "Base Rent"
to be paid hereunder during months 1 through 36 of the Term shall be
$368,966.16 per annum, payable in equal monthly installments of $30,747.18, and
during months 37 through 62 of the Term shall be $468,773.76 per annum, payable
in equal monthly installments of $39,064.48. All payments of Base Rent shall be
paid in advance on or before the first day of each calendar month during the
Term. If the Term commences other than on the first day of a month, the Base
Rent for such month shall be a prorated portion of $30,747.18 based on the
number of days in that month that Tenant's rental obligations were in effect.
The Base Rent for the portion of the month in which the Term commences shall be
paid on the first day of the first full month of the Term. Notwithstanding
anything to the contrary set forth hereinabove, so long as there is no Event of
Default hereunder, Tenant shall not be obligated to pay Base Rent or any Expense
Adjustment Amount or any Tax Adjustment Amount for the first two full calendar
months following the Commencement Date. Upon an occurrence of an Event of
Default, all amounts so deferred hereunder shall be immediately due and payable
to Landlord without notice.
3. COMPLETION OF IMPROVEMENTS.
(a) PRELIMINARY INFORMATION AND PLANS. Landlord has heretofore
delivered to Tenant for use by Tenant and Landlord's architect or engineer, such
plan or plans and other information with respect to the Premises and the
Building as Tenant may reasonably require for proper and expeditious preparation
of Tenant's Layout Plans. Receipt of all such information is hereby acknowledged
by Tenant.
(b) TENANT'S PLANS. Tenant shall prepare at Tenant's expense and,
not later than September 15, 1999, shall deliver to Landlord one mylar and two
black line prints of complete and
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final architectural working drawings (which shall be 1/8" scale) and three
copies of specifications and two (2) non-copyrighted CADD disks, prepared by an
architect or space planner approved by Landlord ("Tenant's Layout Plans") for
the construction and finishing of the Premises for Tenant's occupancy. Tenant's
Layout Plans shall (i) include the layout of Tenant's furniture, fixtures and
equipment, (ii) include electrical and heat specifications for all of Tenant's
fixtures and equipment, (iii) be signed and sealed by an architect licensed by
and registered in the State of Colorado, and (iv) conform to all applicable laws
and requirements of public authorities and insurance underwriters' requirements.
Tenant's Layout Plans shall be subject to Landlord's review and written
approval, which approval shall not be unreasonably withheld, and such plans
shall be deemed modified to take account of any changes reasonably required by
Landlord. Tenant's Layout Plans as approved by Landlord and with the aforesaid
modifications, if any, are herein called the "Final Layout Plans". Concurrently
with delivery of Tenant's Layout Plans to Landlord, Tenant shall by notice to
Landlord in writing designate a single individual who Tenant agrees shall be
available to meet and consult with Landlord at the Premises as Tenant's
representative respecting the matters which are the subject of this Paragraph 3
and who, as between Landlord and Tenant, shall have the power to legally bind
Tenant, in making requests for changes, giving approval of plans or work, giving
directions to Landlord or the like, under this Paragraph 3; and any notice or
delivery given to such person personally or at his place of business shall have
the same effect as a notice or delivery given to Tenant.
(c) ENGINEERING PLANS. Landlord shall direct its engineers to
prepare at Landlord's expense and, not later than 30 days after approval by
Landlord of the Final Layout Plans, shall deliver to Tenant mechanical,
electrical and fire protection engineering drawings and specifications
("Engineering Plans"), based on the Final Layout Plans (and such pertinent
additional information as shall have been submitted by Tenant with Tenant's
Layout Plans or as requested by Landlord), as may be required to complete the
Premises in accordance with the Final Layout Plans. Within ten days after
submission to Tenant by Landlord of the Engineering Plans, Tenant shall give its
written approval thereof if they are in substantial conformity with or a direct
extension of the Final Layout Plans, otherwise such approval shall not be
unreasonably withheld; however, the Engineering Plans shall be deemed to have
been approved by Tenant unless Tenant shall have notified Landlord in writing to
the contrary within ten days of their receipt by Tenant, stating in which
respects such plans fail to conform with the Final Layout Plans. The Engineering
Plans shall be deemed to have been approved by Tenant if they are returned by
Tenant with specified changes noted and such changes are made, whether or not
approval is thereafter specifically noted on the Engineering Plans so changed.
(d) COMPLETION BY LANDLORD. Landlord shall, in a good and
workmanlike manner, cause the Premises to be improved and completed in
accordance with the Final Layout Plans and the Engineering Plans (the "Tenant
Work") (such plans are hereinafter together called the "Tenant Construction
Plans"). Landlord reserves the right however: (i) to make substitutions of
material or components of equivalent grade and quality when and if any specified
material or component shall not be readily or reasonably available, and (ii) to
make changes necessitated by conditions met in the course of construction,
provided that Tenant's approval of any substantial change shall first be
obtained (which approval shall not be unreasonably withheld or delayed so long
as there shall be general conformity with the Final Layout Plans).
(e) SPECIAL TENANT WORK. In the improvement of the Premises in
accordance with the Tenant Construction Plans, Landlord agrees to perform those
items of the work as set forth on the schedule attached hereto as Exhibit "A"
(herein referred to as "Standard Tenant Work") to the extent required by the
Tenant Construction Plans. All work to be performed by Landlord pursuant to the
Tenant Construction Plans in addition to, in substitution for, or different
from, Standard Tenant Work is hereinafter referred to as "Special Tenant Work"
and Special Tenant Work shall also include the relocation of existing Building
mechanical, electrical, sprinkler or other systems to accommodate the Tenant
Work or to comply with Tenant's requirements. All Special Tenant Work shall be
furnished, installed and performed by Landlord for the sum (hereinafter called
the "Special Tenant Costs") equal to "Landlord's Cost" (as hereinafter defined)
plus an amount equal to 5% of such amount to cover coordination, supervision and
overhead. "Landlord's Cost" shall be deemed to mean Landlord's out-of-pocket
contract or purchase price or prices (to be paid by Landlord to Landlord's
general contractor or other sources) for the material, labor and services
applied to the Special Tenant
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Work, plus applicable sales taxes. After Landlord shall have obtained an
estimate of the Special Tenant Cost which Landlord in its good faith judgment
believes to be substantially accurate, and before commencing the Special Tenant
Work, Landlord shall give Tenant written notice of such estimate.
(f) PAYMENT FOR WORK. Landlord agrees to obtain not less than two
(2) bids for the completion of the Tenant Work from general contractors
reasonably acceptable to Landlord and Tenant maintaining an "A" or "B" license
with the City and County of Denver and the general contractor submitting the
lowest bid shall be selected to complete the Tenant Work; provided, however,
that Landlord and Tenant may agree to select the other general contractor if its
submitted bid is within two percent (2%) of the lowest bid provided such
selection is made within one (1) business day after Landlord delivers the final
bid summary to Tenant. Landlord currently estimates that the Tenant Work can be
completed by the Scheduled Commencement Date (subject to delays beyond
Landlord's control), provided the Final Layout Plans are completed on or before
5:00 p.m. (Denver time), October 1, 1999. The Tenant Work shall be performed
pursuant to a "guaranteed maximum price" construction contract. Tenant shall
have the right to approve such construction contract, provided such approval
shall not be unreasonably withheld or delayed. Tenant shall pay for all costs
related to the Tenant Work, including costs of preparation and approval of the
Final Layout Plans and Engineering Plans and a 5% construction management fee to
Landlord ("Tenant Improvement Costs"), which costs shall be payable by Tenant to
Landlord within ten (10) days after the date that the contract for the
completion of the Tenant Work is awarded; provided, however, Tenant shall pay
Landlord all Special Tenant Costs in full concurrent with the applicable change
order.
(g) ACCESS; ACCEPTANCE OF WORK. Landlord shall afford Tenant and
its employees and agents access to the Premises at reasonable times prior to the
commencement of the Term and at Tenant's sole risk and expense, for the purposes
of inspecting and verifying Landlord's performance of the Tenant Work. Tenant
shall advise Landlord promptly of any objection to the performance of such work.
(h) DELIVERY OF POSSESSION. If Landlord shall, for any reason
(including, without limitation, failure to complete the work, if any, required
to be done by Landlord under this Lease), fail to make available to Tenant
possession of the Premises on or before January 1, 2000, Tenant shall have the
right to terminate the Lease upon three (3) days prior written notice. However,
there shall be no termination right (and the only remedy available to Tenant
shall be a deferral of Tenant's obligation to pay Base Rent and Additional Rent
until Tenant is provided occupancy of the Premises), if any such failure is
caused in whole or part by any act or omission of Tenant, its agents, servants,
employees or contractors, which has the effect of hindering or delaying
Landlord's delivery of possession or the timely completion of any work to be
done by Landlord (hereinafter a "Tenant Delay") including, without limitation,
(i) any delay in delivery of the Tenant Layout Plans, (ii) any delay which is
caused by changes in the work to be performed by Landlord in readying the
Premises for Tenant's occupancy, which changes are requested by Tenant after
Tenant's submission of the Tenant Layout Plans as required by Landlord for
approval thereof, (iii) any delay, not caused by Landlord, in furnishing
materials or procuring labor required to be furnished or procured for the Tenant
Work on account of installations or work required by Tenant and not encompassed
within Standard Tenant Work, (iv) any delay which is caused by any failure by
Tenant, without regard to any grace period applicable thereto, to furnish to
Landlord any required plan, information, approval or consent within the period
of time required therefor by the terms of this Lease or caused by any good faith
reluctance on the part of Landlord to approve any plan or other information
required to be submitted by Tenant and approved by Landlord, (v) any delay which
is caused by the performance of any work or activity in the Premises by Tenant
or any of its employees, agents or contractors, or (vi) any delay or failure to
pay the Tenant Improvement Costs or the Special Tenant Costs. Tenant also shall
pay to Landlord, within ten days after receipt of demand made from time to time,
a sum equal to any additional cost to Landlord in completing the Tenant Work
resulting from any Tenant Delay.
(i) OCCUPANCY. The Premises shall not be deemed incomplete or not
ready for occupancy or for delivery of possession, if details of construction,
mechanical adjustments or decoration, or other items of the Tenant Work which do
not materially interfere with Tenant's use of the Premises, remain to be done.
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4. ADDITIONAL RENT. In addition to paying the Base Rent specified in
Paragraph 2 hereof, Tenant shall pay "Additional Rent," which is equal to the
sum of the Expense Adjustment Amount, Tax Adjustment Amount, and Additional
Services Charge (all as hereinafter defined) and any other charges noted in this
Lease. The Base Rent and Additional Rent are sometimes herein collectively
referred to as the "Rent." Unless otherwise specified, all amounts due under
this lease as Additional Rent shall be payable in the same manner and at the
same place as the Base Rent.
(a) DEFINITIONS. As used in this Paragraph 4, the terms:
(i) "Operating Expense Base Amount" shall mean $5.60 per
rentable square foot per annum.
(ii) "Tax Base Amount" shall mean $1.08 per rentable square
foot per annum.
(iii) "Calendar Year" shall mean each calendar year in which
any part of the Term falls, through and including the year in which the Term
expires.
(iv) "Tenant's Proportionate Share" shall mean 4.175% being
the percentage calculated by dividing 21,464 square feet, the rentable area of
the Premises provided at the beginning of this Lease, by 514,000 square feet
(being 95% of the rentable area of the office space in the Building). The
rentable area of the Premises has been calculated according to a method pursuant
to which a portion of the common areas has been deemed included in the Premises.
(v) "Taxes" for any Calendar Year shall mean the Building's
Proportionate Tax Share of all real estate taxes and assessments, special or
otherwise, levied or assessed upon the Property or the Building during such
Calendar Year; provided, however, that if Landlord subdivides the Property so
that the Building is located on its own tax lot (i.e., there are no other
buildings on such tax lot), then (1) such separate tax lot shall be referred to
as the "Building Tax Lot", and (2) for each year that the Building Tax Lot is
taxed separately from the remainder of the Land, the term "Taxes" shall mean all
real estate taxes and assessments, special or otherwise, levied or assessed upon
the Building Tax Lot or the Building during such Calendar Year. For purposes of
this subparagraph "Buildings Proportionate Tax Share" for any Calendar Year
shall mean the fraction the numerator of which is equal to the assessed
valuation for the Building only for such Calendar Year and the denominator of
which is equal to the sum of the assessed valuations for all buildings and
improvements on the Property (including the Building) for such Calendar Year.
Should the State of Colorado, or any political subdivision thereof, or any other
governmental authority, impose a tax, assessment, charge or fee, which Landlord
shall be required to pay, wholly or partially in substitution of any of the
above Taxes, all such taxes, assessments fees or charges shall be deemed to
constitute Taxes hereunder but shall be computed as if the Real Property and any
other shared use real property referred to in this subparagraph was the only
real property of Landlord. "Taxes" shall also include all fees and costs,
including reasonable attorneys' fees, appraisals and consultants' fees, incurred
by Landlord in seeking to obtain a reduction of, or a limit on, any increase in
any Taxes (regardless of whether any reduction or limitation is obtained). In
the event that the Real Property shall be for any taxes or assessments assessed
under the same assessment as other real property, the amount of such taxes or
assessment to be included within Taxes shall be such portion thereof as Landlord
fairly and equitably shall deem attributable thereto.
(vi) "Operating Expenses" shall mean all expenses, costs and
disbursements (other than Taxes) of every kind and nature paid or incurred by or
on behalf of Landlord in connection with the ownership, management, operation,
maintenance and repair of the Property, other than those costs reimbursable to
Landlord by other tenants in the Building (and, as allocated by Landlord, those
paid or incurred in connection with the ownership, operation, maintenance,
management and repair of any garage or other improvements the use of which is
shared by the Building and one or more other buildings), except the following:
[A] Costs of alterations of any tenant's premises;
[B] Principal or interest payments on loans secured by
mortgages or trust deeds on the Real Property;
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[C] Costs of capital improvements, except that Operating
Expenses shall include the costs as amortized over such number of years as
Landlord may reasonably determine, with interest at the rate of 12% per annum on
the unamortized amount, of any capital improvements which, (1) in Landlord's
reasonable opinion, will have the effect of reducing any component cost included
within Operating Expenses, (2) are made or installed to assure compliance with
all governmental rules and regulations applicable from time to time, or (3)
under generally applied real estate accounting practices may be expensed or
treated as deferred expenses (and the amortization and interest so determined
for each Calendar Year shall be included in Operating Expenses for that Calendar
Year); and
[D] Leasing commissions for space in the Building.
(vii) "Expense Adjustment Amount" shall mean Tenant's
Proportionate Share of the amount by which the Operating Expenses incurred with
respect to such Calendar Year exceed the Operating Expense Base Amount;
provided, however, that in determining the amount of Operating Expenses for each
Calendar Year, if less than 95% of the rentable office area of the Building
shall have been occupied at any time during such Calendar Year, Operating
Expenses shall be deemed for such Calendar Year to be in the amount reasonably
determined by Landlord to be equal to that amount of like expenses which
normally would be expected to be incurred had such occupancy been 95% throughout
such Calendar Year.
(viii) "Tax Adjustment Amount" shall mean Tenant's
Proportionate Share of the amount by which the Taxes incurred with respect to
such Calendar Year exceed the Tax Base Amount.
(ix) "Additional Services Charge" shall mean all expenses and
disbursements that Landlord incurs in connection with the ownership, operation,
and maintenance of the Premises, in addition to the services provided as
standard to all premises in the Building, which Additional Services are more
specifically described and defined in Paragraph 7 below.
(b) PAYMENT OF ADDITIONAL RENT.
(i) EXPENSE ADJUSTMENT. The Expense Adjustment Amount with
respect to each Calendar Year shall be paid in monthly installments, in advance
on the first day of each calendar month during the course of such year, in
amounts estimated from time to time by Landlord and communicated by written
notice to Tenant. Landlord shall cause to be kept books and records showing
Operating Expenses in accordance with generally accepted accounting principles.
Following the close of each Calendar Year, Landlord shall cause the amount of
the Expense Adjustment Amount for such Calendar Year to be computed based on
Operating Expenses for such Calendar Year, and Landlord shall deliver to Tenant
a statement of such amount; thereupon Tenant shall pay any deficiency as shown
by such statement to Landlord within 30 days after receipt of such statement.
If the total of the estimated monthly installments paid by Tenant during any
Calendar Year exceed the actual Expense Adjustment Amount due from Tenant for
such Calendar Year, then, at Landlord's option, such excess shall be either
credited against payments next due hereunder or refunded by Landlord, provided
Tenant is not then in default hereunder.
(ii) TAX ADJUSTMENT AMOUNT. The Tax Adjustment Amount with
respect to each Calendar Year shall be paid in monthly installments, in an
amount estimated from time to time by Landlord and communicated by written
notice to Tenant. Following the close of each Calendar Year, Landlord shall
cause the amount of the Tax Adjustment Amount for such Calendar Year to be
computed based on Taxes for such Calendar Year and Landlord shall deliver to
Tenant a statement of such amount and Tenant shall pay any deficiency as shown
by such statement to Landlord within 30 days after receipt of such statement. If
the total of the estimated monthly installments paid by Tenant during any
Calendar Year exceeds the actual Tax Adjustment Amount due from Tenant for such
Calendar Year, then, at Landlord's option such excess shall be either credited
against payments next due hereunder or refunded by Landlord, provided Tenant is
not then in default hereunder. The amount of any refund of Taxes received by
Landlord shall be credited against Taxes for the year in which such refund is
received. In determining the amount of Taxes for any year, the amount of special
assessments to be included shall be limited to the amount of the installment
(plus any interest payable thereon) of such special assessment required to be
paid during such year as if Landlord had elected to have such special assessment
paid over the maximum period of time permitted by law; if
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the authority to whom such assessment is to be paid shall not permit such
assessment to be paid in installments, the amount of such assessment shall be
treated as being amortized over such number of calendar years, beginning with
the Calendar Year in which the assessment is payable, as Landlord shall
reasonably determine, with interest at the rate of 15% per annum on the
unamortized amount, and such amortization and interest for each Calendar Year
shall be included in Taxes for that Calendar Year. Notwithstanding the
foregoing, Landlord shall provide Tenant copies of actual tax bills and
statements upon Tenant's request.
(iii) ADDITIONAL SERVICES CHARGE. The Additional Services
Charge shall be paid in monthly installments, in arrears, on the first day of
each calendar month during the course of such year, in amounts estimated from
time to time by Landlord and communicated by written notice to Tenant. Following
the close of each Calendar Year, Landlord shall cause the amount of the
Additional Services Charge for such Calendar Year to be computed and Landlord
shall deliver to Tenant a statement of such amount, whereupon Tenant shall pay
any deficiency as shown by such statement to Landlord within 30 days after
receipt of such statement. If the total of the estimated monthly installments
paid by Tenant during any Calendar Year exceeds the actual Additional Services
Charge due from Tenant for such Calendar Year, then, at Landlord's option, such
excess shall be either credited against payments next due hereunder or refunded
by Landlord, provided Tenant is not then in default hereunder.
(c) ADJUSTMENT FOR SERVICES NOT RENDERED. If Landlord shall not be
furnishing any particular work or service (the cost of which, if furnished by
Landlord would be included in Operating Expenses) to a tenant who undertakes to
itself perform or obtain such work or service in lieu of the furnishing thereof
by Landlord, Operating Expenses shall be deemed for purposes of this Paragraph 4
to be increased by an amount equal to the additional Operating Expenses, as
reasonably determined by Landlord, which would have been incurred during such
period if Landlord had at its own expense furnished such work or service to such
tenant.
(d) PARTIAL YEAR. If only part of any Calendar Year shall fall
within the Term, the amounts computed as Additional Rent, with respect to such
Calendar Year under the foregoing provisions of this Paragraph 4 shall be
prorated in proportion to the portion of such Calendar Year falling within the
Term, but the expiration or termination of this Lease prior to the end of such
Calendar Year shall not impair Tenant's obligation hereunder to pay such
prorated portion of such Additional Rent with respect to that portion of such
year falling within the Term.
(e) DISPUTES. Any statement furnished to Tenant by Landlord under
the provisions of this Paragraph 4 shall constitute a final determination as
between Landlord and Tenant as to the Rent set forth therein due from Tenant for
the period represented thereby, unless Tenant, within 60 days after such
statement is furnished, shall give a notice to Landlord that it disputes the
correctness thereof, specifying in detail the basis for such assertion. Pending
resolution of such dispute, Tenant shall pay all disputed amounts in accordance
with the statement furnished by Landlord. Landlord agrees, upon prior written
request, during normal business hours to make available for Tenant's inspection,
at Landlord's offices, Landlord's books and records which are relevant to any
items in dispute, provided Tenant has paid all amounts billed to Tenant on
account of the Additional Rent and all installments thereof, and all other rents
and sums then and previously due under this Lease.
(f) PLACE OF PAYMENT. Tenant shall, without any demand therefor
and without set-off, pay to DENVER-STELLAR ASSOCIATES LTD. PARTNERSHIP, X/X
XXXXXXXXXX, XXXXXX, XXXXXXXX 00000-0000, or to such other person or at such
other place as Landlord may from time to time direct by notice given to Tenant,
the Base Rent as well as all other sums which may become due by Tenant under
this Lease. All such other sums shall be payable as Additional Rent.
(g) TENANT TAXES.
(i) Any provision hereof to the contrary notwithstanding,
Tenant shall, upon demand from time to time, as Additional Rent, pay to Agent
or, as Landlord may direct, to Landlord or to the tax collecting authority, the
full amount of all taxes, levies, charges and assessments legally required or
authorized to be collected by Landlord from Tenant or any subtenant or occupant
of the Premises and all taxes, levies, charges and assessments required to be
paid by Landlord (or imposed upon the Property) if not paid by or collected from
Tenant or a subtenant or
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occupant of the Premises. Tenant hereby agrees to defend, indemnify and hold
harmless Landlord from and against all loss, cost, liability and expenses
(including counsel fees and costs of litigation) which Landlord may suffer,
incur or be exposed to as a result of any assertion against Landlord of
liability for any of the taxes referred to in this subparagraph (h), and from
and against any penalties or interest relating thereto, which Tenant fails to
pay pursuant hereto.
(ii) Tenant shall timely pay when due all taxes, levies,
charges and assessments which are required to be paid by Tenant with respect to
Tenant's use or occupancy of the Premises or which are or could become a lien
upon the personal property, trade fixtures, furniture or facilities of Tenant on
the Premises. Tenant hereby agrees to defend, indemnify and hold harmless
Landlord from and against all loss, cost, liability and expense (including,
without limitation, counsel fees and costs of litigation) which Landlord may
suffer or incur, or to which Landlord may be exposed, as a result of Tenant's
failure to pay any of the foregoing.
(iii) Within 15 days after each date upon which such taxes are
due, Tenant shall deliver to Landlord official receipts for the payment of all
taxes due with respect to the personal property, trade fixtures, furniture or
facilities of Tenant on the Premises. In addition, within 15 days after written
notice from Landlord to do so, Tenant shall deliver to Landlord official
receipts for the payment of all other taxes, levies, charges and assessments
within the scope of subparagraph (ii) above that were due and payable in the
calendar year in which such notice is given and in the preceding calendar year.
If Tenant shall fail to present any of the receipts referred to in this
subparagraph within the times set forth herein, Landlord shall have the right to
pay the amounts of the taxes which Landlord reasonably determines would have
been covered thereby, together with the full interest and penalties chargeable
thereon in accordance with law, and Landlord shall, upon demand, be entitled to
reimbursement for all of such payments together with interest at the "Lease
Interest Rate" (defined in Paragraph 21 hereof).
(iv) Tenant shall cause all of the personal property, trade
fixtures, furniture and facilities of Tenant on the Premises, and all
alterations, additions and improvements made by Tenant to the Premises which for
purposes of personal property taxes are treated as personal property (such as
built-in cabinets, counters and partitions) to be assessed separately from
Landlord's property, and, if they are not so separately assessed, Landlord shall
be entitled to reimbursement, within 10 days after demand made from time to
time, for any tax payable by Landlord which is attributable to any of such items
taxable as personal property.
(h) DELAY IN COMPUTATION. Delay in computation of the Expense
Adjustment Amount, Tax Adjustment Amount, or Additional Services Charge shall
not be deemed a default hereunder or a waiver of Landlord's right to collect any
of such amounts.
5. USE OF PREMISES. Tenant shall use and occupy the Premises solely as
a general business office and for no other purpose.
6. CONDITION OF PREMISES. Tenant's taking possession of the Premises or
any portion thereof shall be conclusive evidence that the Premises or any such
portion was in good order and satisfactory condition when Tenant took
possession, unless notice to the contrary is provided to Landlord on an
inspection Punchlist prior to Tenant's occupancy or by written notice within ten
(10) days after occupancy. At the expiration or other termination of this Lease
or of Tenant's right of possession, Tenant shall leave the Premises, and during
the Term will keep the same, in good order and condition, ordinary wear and
tear, damage by fire or other casualty alone excepted; and for that purpose,
Tenant shall make all necessary repairs and replacements. Tenant shall give
Landlord prompt notice of any damage to or accident upon the Premises and of any
breakage or defects in the window glass, wiring or plumbing, heating,
ventilating or cooling or electrical apparatus or systems on or serving the
Premises. Tenant shall at the expiration or termination of this Lease or of
Tenant's right of possession, also have had removed from the Premises all
furniture, trade fixtures, office equipment and all other items of Tenant's
property (including, without limitation, the items Tenant is required to remove
pursuant to subparagraph 8(c) hereof) so that Landlord may again have and
repossess the Premises. All such items not removed from the Premises at such
expiration or termination, shall conclusively be deemed to have been abandoned
and may be appropriated, sold, stored, destroyed or otherwise disposed of by
Landlord without notice to Tenant or any other party with an interest in such
property and without any obligation to account therefor. Tenant shall pay
Landlord all expenses incurred in connection with the disposition of such
property, and if Landlord
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shall choose to stone any such items, Landlord shall have no liability for the
safekeeping thereof and such items may not be retrieved by Tenant or any other
person except upon payment of such charges as may be imposed for the removal and
storage. Tenant shall comply with all laws, rules, orders, ordinances and
regulations at any time issued or in force by any lawful authority, applicable
to Tenant or any other occupant of the Premises, or to the Premises, or to the
use or occupancy of the Premises. Tenant shall, upon demand, pay to Landlord the
amount of any damages suffered or incurred by Landlord as a result of any injury
to any part of the Property other than the Premises, done by Tenant or any
subtenant or any agent, employee, contractor or invitee of Tenant or any
subtenant, done by the bringing or removal of furniture and other property.
Tenant shall forthwith repair all damage done to the Premises by installation or
removal of furniture and property by Tenant or any subtenant or by any agent,
employee, contractor or invitee of Tenant or of any subtenant or, if Landlord
shall so request, pay to Landlord the cost of such repair. Tenant shall not do
or commit, or suffer on permit to be done or committed, any act or thing as a
result of which any policy of insurance of any kind on or in connection with the
Property shall become void or suspended, or any insurance risk on or in
connection with the Building or any other portion of the Property shall (in the
opinion of the insurer on any insurance organization) be rendered more hazardous
on require payment of a greater premium; without limitation of any other rights
and remedies of Landlord, Tenant shall pay as Additional Rent the amount of any
increase of premiums for such insurance, resulting from any breach of this
provision. Tenant shall leave the Premises in a reasonably tidy condition on all
days upon which janitorial services are to be provided by Landlord. Landlord
shall, at Landlord's expense, replace any glass broken in the Premises windows
in the exterior walls of the Building, unless such glass is broken by Tenant,
its servants, employees, agents, invitees, licensees on contractors, in which
case Tenant shall, upon demand, pay the cost of replacement by Landlord. Tenant
shall replace and pay for any other glass broken in on about the Premises.
7. SERVICES.
(a) STANDARD SERVICES. Landlord shall provide the following
services on all days during the Term, except Sundays and holidays, unless
otherwise stated:
(i) HVAC. Heating, ventilation and air conditioning, as deemed
appropriate by Landlord, from Monday through Friday within the period from 6:00
a.m. to 6:00 p.m. and on Saturday within the period from 8:00 a.m. to 1:00 p.m.,
holidays excepted. Tenant, within ten days after its receipt of each xxxx
therefor, will pay for all heating, ventilating and air conditioning requested
and furnished at other times, at rates to be established from time to time by
Landlord. Tenant anticipates its occupancy ratio to equal one person for each
160 square feet of floor area, however, Tenant acknowledges that Landlord shall
not be responsible for the failure of the HVAC system to provide normal comfort
if such failure results from occupancy of the Premises by more than an average
of one person for each 000 xxxxxx xxxx xx xxxxx xxxx xx if Tenant uses
heat-producing equipment or equipment the electrical load of which, when
combined with the load of all lighting fixtures, exceeds 3.2 xxxxx per square
foot of floor area in any one room on area. Unless otherwise consented to by
Landlord, window coverings shall be uniform in the Building and shall be closed
when exterior office windows are exposed to the sun without regard to Tenant's
specific use of the space or to the installation of any computers or data
processing equipment.
(ii) ELECTRICITY. Subject to subparagraph 7(b) hereof,
electrical energy for Building-standard lighting fixtures provided by Landlord
and for the operation of desk-top office equipment, provided that (A) the
connected electrical load of such equipment plus all lights on the Premises does
not exceed an average of 3.2 xxxxx per square foot of the Premises and (B) the
electricity so furnished for equipment uses will be at a nominal 120 volts and
no electrical circuit for the supply of such use need have a current capacity
exceeding 20 amperes. Landlord shall provide and pay for electric service as
described in this subparagraph 7(a)(ii) during the period from 6:00 a.m. to 6:00
p.m. from Monday through Friday and during the period from 8:00 a.m. to
1:00 p.m. on Saturday, holidays excepted.
(iii) WATER. Ordinary water from the regular Building outlets
for drinking, lavatory and toilet purposes.
(iv) JANITORIAL SERVICES. Janitorial services, including,
without limitation, replacement of fluorescent bulbs in Building-standard
lighting fixtures, Monday through Friday in and about the Premises (except
holidays). If any material use made of the Premises after 6:00 p.m. shall,
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by reason of work force scheduling or security, overtime, union rules or
otherwise, cause any increase in Landlord's cost for providing janitorial
services, Tenant shall, as an Additional Services Charge, pay all bills for
reimbursement of Landlord for such increase, within ten days after Tenant's
receipt of such xxxx, or Landlord may xxxx Tenant for such services with other
Additional Services. All janitorial services shall be performed solely at
Landlord's direction without interference from Tenant.
(v) PASSENGER ELEVATOR. Automatic passenger elevator service
at all times.
(vi) FREIGHT ELEVATOR. Freight elevator services subject to
reasonable scheduling by Landlord.
(b) ADDITIONAL SERVICES. The following services are being provided
to the Premises in addition to the standard services described in subparagraph
7(a) above ("Additional Services"), and costs and expenses therefor incurred by
Landlord will be charged directly to Tenant as an Additional Services charge and
will not be included in the Operating Expenses for the Building:
(i) EXCESS UTILITY USE.
(A) AFTER-HOURS UTILITIES. In the event that Landlord, in
Landlord's sole discretion, determines that Tenant's use of electricity exceeds
the service to be provided under subparagraph 7(a) above or goes materially
beyond the hours specified in subparagraph 7(a), Tenant shall pay, as an
Additional Services Charge, such amounts for such excess or other hours use with
other Additional Services as shall be required under this subparagraph 7(b)(i).
In addition, if the Premises are used in a manner exceeding the aforementioned
occupancy and electric load criteria or if such window covering requirement
shall not be observed or if heat-producing or controlled climate equipment is
used, Tenant shall pay to Landlord, promptly upon billing, Landlord's additional
costs of supplying air conditioning resulting from such causes, at such rates as
Landlord shall establish therefor. If due to use of the Premises in a manner
exceeding the aforementioned occupancy and electrical load criteria, or due to
the arrangement of partitioning, or the use of heat-producing or controlled
climate equipment, or the distribution system within the Premises, impairment of
normal operation of the HVAC system in the Premises results, necessitating
changes in HVAC distribution system within the Premises, such changes may be
made by Landlord upon request by Tenant at Tenant's sole cost and expense,
provided that they can be accommodated by Landlord's systems. Tenant agrees at
all times to cooperate fully with Landlord and to abide by all the regulations
and requirements which Landlord may prescribe for the proper functioning and
protection of the HVAC system. After Landlord has balanced the air-conditioning
system for Tenant, if Tenant installs partitions, equipment, or fixtures
requiring rebalancing of the system, Landlord, at Tenant's request and at
Tenant's expense (which shall be charged as an Additional Services Charge
payable upon demand) shall endeavor to do such rebalancing. If Tenant's
requirements for electricity or other utilities are in excess of those set forth
in subparagraph 7(a), and if, in Landlord's sole judgment, Landlord's facilities
are inadequate for such additional requirements and if electrical energy for
such additional requirements is available to Landlord, Landlord, upon written
request and at the sole cost and expense of Tenant, will furnish and install,
or, at Landlord's sole discretion, permit Tenant to furnish and install, such
additional wires, risers, conduits, feeders, cabling, or other pipelines or
conduits and switchboards as reasonably may be required to supply such
additional requirements of Tenant provided that (1) the same shall be permitted
by applicable laws and insurance regulations; (2) in Landlord's sole judgment,
the same are necessary and will not cause permanent damage or injury to the
Building or the Premises or cause or create a dangerous or hazardous condition
or entail excessive or unreasonable alterations or repairs or interfere with or
disturb other tenants or occupants of the Building; (3) in Landlord's sole
judgment, the same will not in any way diminish or adversely affect the
utilities which Landlord deems should remain available for other tenants; and
(4) Tenant, at Tenant's expense, shall, concurrently with the making of such
written request, execute and deliver to Landlord Tenant's written undertaking,
in form and substance satisfactory to Landlord, obligating Tenant to fully and
promptly pay the entire cost and expense of so furnishing and installing any
additional wires, risers, conduits, feeders, cabling, and other pipelines and
conduits and switchboards as Additional Services.
(B) Measured Usage. In the event that Tenant's use of the
Premises includes either (i) the use or installation of any machines, equipment,
or devices in the Premises that do not constitute standard office equipment
provided to all tenants of the Building, including, without limitation, air
conditioning units, heating units, main frame computers or other electrical
equipment
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or fixtures which do not operate on 110 volts, single phase or require the use
of self contained air conditioning units ("Non-Standard Equipment") causing, in
Landlord's sole determination, Tenant's use of electric service or other
utilities provided to the Premises to exceed the service to be provided under
subparagraph 7(a) above, or (ii) if consistent use of a majority of the Premises
outside the hours specified in subparagraph 7(a), Landlord shall install in the
Premises or elsewhere, if Landlord shall so elect, or, if Tenant shall so
request and if feasible in Landlord's reasonable judgment, one or more meters or
other devices to measure the electricity or other utilities used by such
computers or other equipment or fixtures or such other hours use; and Tenant
shall pay Landlord for such electricity or other utilities as Additional
Services within ten days after submission of each xxxx by Landlord therefor, or
Landlord may xxxx Tenant for such services with other Additional Services, at
such rates as shall be from time to time determined by Landlord, provided that
the rates charged by Landlord shall not exceed Landlord's cost (including,
without limitation, taxes, fuel adjustment charges, and other like charges
regularly passed on to customers by public utility companies and transformer
costs) of supplying such electricity or other utilities as determined by
Landlord using reasonable accounting methods; and the cost of obtaining and
installing such meters or other devices shall be paid by Tenant to Landlord
within ten days after submission of each xxxx by Landlord to Tenant therefor, or
Landlord may xxxx Tenant for such services with other Additional Services.
(C) ESTIMATED USAGE. For any other hours use of
electricity or other utilities determined by Landlord to be material, and for
any use of electricity or other utilities which is determined by Landlord to be
in excess of the service to be provided under subparagraph 7(a) above, and which
is not actually measured, Tenant shall pay to Landlord, in monthly installments
at the times prescribed for the monthly installments of the Base Rent, as
Additional Services, amounts, as reasonably estimated by Landlord from time to
time, which Tenant would be required to pay for such excess or other hours
electrical or other utilities service if the same were actually measured as
provided in subparagraph 7(b)(i)(B) above.
(ii) LANDLORD'S REPAIR OF NON-STANDARD EQUIPMENT. If
Non-Standard Equipment located in the Premises requires maintenance or repair in
excess of the amount provided to all tenants of the Building, Landlord will
provide such excess services to Tenant within a reasonable amount of time after
Tenant's request is made to the manager of the Building, provided that such
excess services are available from the manager of the Building or the
contractors already retained by the manager for the Building. Tenant will pay
the cost of such excess services as Additional Services.
(iii) EXCESS JANITORIAL SERVICES. If Tenant requires any
janitorial or cleaning services in excess of the amounts provided by Landlord
according to subparagraph 7(a)(iv) (such as cleaning services beyond normal
office janitorial services for kitchens, computer rooms, or other special use
areas and carpet cleaning), Landlord will provide such excess services to Tenant
within a reasonable period after Tenant's request is made to the manager of the
Building, provided that such excess services are available from Landlord's
regular janitorial or cleaning contractor. Tenant will pay the cost of such
excess services as Additional Services. Landlord will also provide, within a
reasonable period after Tenant's request is made to the manager of the Building,
on at Tenant's cost and to the extend available to Landlord, replacement of
bulbs, tubes or ballasts in any Building non-standard lighting fixtures in the
Premises. Tenant will pay the costs of such services as Additional Services.
(iv) EXCESS SERVICES. If Tenant requires any work, service, or
materials performed for, or facilities or materials furnished to Tenant, to a
greater extent or in a manner more favorable to Tenant than those performed for
or furnished to other tenants of the Building, including, but not limited to,
supplying paper towels, restocking recycling containers, hanging pictures or
whiteboards, providing extra keys to the Premises and any other work or services
which relate to Tenant's use of the Premises, Landlord will provide such excess
services to Tenant within a reasonable period after Tenant's request is made to
the manager of the Building provided that such excess services are available
from the manager of the Building, or the contractors already retained by the
manager of the Building. Tenant will pay the cost of such excess services as
Additional Services.
(c) INTERRUPTION OF SERVICES. Tenant agrees that Landlord shall
not be liable for damages (by abatement of rent or otherwise) for failure to
furnish or delay in furnishing any service, or for any diminution in the quality
or quantity thereof, when such failure or delay or diminution is
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occasioned, in whole or in part, by repairs, renewals, or improvements, by any
strike, lockout or other labor trouble, by inability to secure fuel, by
governmental laws, regulations or orders, by Landlord's compliance, in whole or
in part with any government promulgated program (whether voluntary or
mandatory), for conservation of energy by any accident or casualty whatsoever,
by act or default of Tenant on other parties, on by any cause beyond Landlord's
reasonable control; and such failures or delays or diminution shall never be
deemed to constitute an eviction or disturbance of Tenant's use and possession
of the Premises or relieve Tenant from paying rent or performing any of its
obligations under this Lease. Landlord's obligation to furnish services shall
also be further conditioned upon the availability of adequate energy sources
from the public utility companies then servicing the downtown Denver area.
8. ALTERATIONS.
(a) Tenant shall not, without the prior written consent of
Landlord, make any alterations, improvements or additions to the Premises. If
Landlord consents to any alterations, improvements or additions, it may impose
such conditions with respect thereto as Landlord deems appropriate, including,
without limitation, Landlord's approval of plans and specifications for the work
(but Tenant shall not be entitled to rely upon such approval as evidencing that
the plans and specifications are proper in any respect), use of Landlord's
approved contractors to perform the work, insurance against liabilities which
may arise out of such work, permits necessary for such work and as-built
drawings upon completion of such work and its completion free of mechanics',
materialmen's and similar liens or claims thereof. Tenant shall not be obligated
to provide security for such alterations. All work done by Tenant or its
contractors shall be done in a first-class workmanlike manner, using only good
grades of materials and without disturbing other tenants and shall comply with
all insurance requirements and all applicable laws or ordinances and rules and
regulations of governmental departments or agencies. Any work performed by or
for Tenant shall be performed by competent workmen whose labor union
affiliations are compatible with those of the workmen who may be employed in the
Building by Landlord, its contractors or subcontractors, and Landlord shall have
the right, at its option, to directly supervise the work, which supervision
shall be for the protection of Landlord's interest only.
(b) If Tenant requests that Landlord, through its contractors,
perform the work associated with any alteration, improvement or addition to the
Premises, and Landlord agrees, in its sole discretion, to perform such work,
Landlord shall provide Tenant with a Tenant Work Order describing the work to be
performed by Landlord and stating the total cost to Tenant for the performance
of the work. Upon Tenant's acceptance of the Tenant Work Order, the total cost
for the work stated therein shall become a sum required to be paid under this
Lease and subject to the provisions of Paragraph 21. All work performed by
Landlord under this subparagraph 8(b) shall be subject to the provisions of
subparagraph 8(a).
(c) All alterations, additions or improvements made by Tenant and
all fixtures attached to the Premises shall become the property of Landlord and
remain at the Premises or, at Landlord's option, any or all of the foregoing
shall be removed at the cost of Tenant before the expiration or sooner
termination of this Lease and in such event Tenant shall repair all damage to
the Premises caused by the installation or removal thereof. Tenant shall not
permit or suffer any signs advertisements or notices to be displayed, inscribed
upon or affixed on any part of the outside or inside of the Premises, or in the
Building, except on the entrance doors of the Premises, and then only of such
size, color and style as Landlord may approve. Landlord shall have the right to
remove unauthorized signs at Tenant's expense.
9. LIENS.
(a) Tenant shall not permit there to be filed against the Property
or Landlord's interest therein or any part of either, and shall within ten days
after Tenant has notice of the claim or lien, remove or have removed, any
mechanics', or materialmen's or other lien, or claim thereof, filed by reason of
work, labor, services or materials provided for or at the request of Tenant
(other than work, labor, services or materials provided by Landlord) or any
subtenant or occupant or for any contractor or subcontractor employed by Tenant
or any subtenant or occupant, and shall exonerate, protect, defend and hold free
and harmless Landlord against and from any and all such claims or liens. Without
limitation of the foregoing, if any such claim or lien be filed, Landlord may,
but shall not be obligated to, discharge it either by paying the amount claimed
to be due in the claim or lien or by
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procuring the discharge of such lien or claim by deposit or by bonding
proceedings. Any amount so paid by Landlord and all costs and expenses,
including, without limitation, reasonable attorney's fees, in connection
therewith, together with interest thereon at the Lease Interest Rate
(hereinafter defined) from the respective dates of Landlord's making of the
payments and incurring of the costs and expenses, shall constitute Additional
Rent payable by Tenant under this Lease and shall be paid by Tenant to Landlord
on demand.
(b) At least ten days before the commencement of any work ordered
by Tenant on the Premises, Tenant shall notify Landlord of the proposed work and
of the names and addresses of the persons supplying labor and materials for the
proposed work so that Landlord may avail itself of the provisions of statutes
such as C.R.S. Section 38-22-105(2). During any such work on the Premises,
Landlord, or its representatives, shall have the right to go upon and inspect
the Premises at all reasonable times, and shall have the right to post and
keep posted thereon notices such as those provided for by C.R.S. Section
38-22-105(2) or to take any action that Landlord may deem advisable to protect
Landlord's interest in the Premises.
10. INSURANCE AND WAIVER OF SUBROGATION.
(a) Tenant, at its sole cost, shall maintain with responsible
insurance companies acceptable to Landlord and qualified to do business in
Colorado, general comprehensive public liability insurance against claims for
personal injury (including death) and property damage, arising from occurrences
in, on and about the Premises, with coverage on an occurrence basis in all cases
of not less than a combined single limit of $3,000,000.00 per occurrence.
Landlord shall be designated a named additional insured in the policies for such
insurance, which shall contain endorsements providing that the naming of more
than one insured shall not operate to limit or void the coverage of any named
insured relating to claims by another named additional insured.
(b) Tenant, at its sole cost, shall maintain with responsible
insurance companies acceptable to Landlord and qualified to do business in
Colorado, "All Risk" or equivalent insurance upon all personal property upon the
Premises and all equipment, fixtures, additions, alterations and improvements
and betterments installed by or for Tenant upon the Premises, including, without
limitation, anything in the nature of a leasehold improvement, in an amount
which is at least 80% of the full replacement cost thereof, which insurance
shall name Landlord as a named insured and Landlord's mortgagees as mortgagees
under a standard mortgagee clause. In the event of damage or destruction to any
leasehold improvements, Tenant shall use the proceeds of such insurance to
repair or restore such leasehold improvements. If this Lease shall be terminated
pursuant to subparagraph 11(a) on account of damage by fire or other casualty to
the Building or the Premises, Landlord shall be entitled to all of the insurance
proceeds payable under the aforesaid insurance relating to the leasehold
improvements.
(c) Tenant shall, prior to the commencement of the Term, and at
least 30 days prior to the expiration date of each policy, furnish to Landlord
certificates evidencing the coverage required hereinabove in this Paragraph and
the renewal thereof, which certificates shall state that such insurance coverage
may not be materially changed or canceled without at least ten days prior
written notice to Landlord and Landlord's mortgagee.
(d) Notwithstanding anything herein to the contrary, Landlord and
Tenant each hereby release the other, its officers, directors, partners, agents
and employees (and Tenant hereby also releases Agent, its partners, officers,
directors, agents and employees), to the extent of the releasing party's
coverage under its insurance policies, from any and all liability for any loss
or damage which may be inflicted upon the property of such party,
notwithstanding that such loss or damage shall have arisen out of the negligence
of the other party, its partners, officers, directors, agents or employees.
11. FIRE OR CASUALTY.
(a) If the Premises or the Building (including machinery or
equipment used in the operation of the Building) shall be damaged by fire or
other casualty and if such damage does not render all or a substantial portion
of the Premises or Building untenantable, then Landlord shall repair and restore
the same with reasonable promptness, subject to reasonable delays for insurance
adjustments and delays caused by matters beyond Landlord's reasonable control.
If any such damage
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renders all or a substantial portion of the Premises or Building untenantable,
Landlord shall have the right to terminate this Lease (with appropriate
prorations of rent being made for Tenant's possession subsequent to the date of
such damage of those tenantable portions of the Premises) upon giving written
notice to Tenant at any time within 120 days after the date of such damage; and
if such notice is given Landlord shall have no obligation to repair or restore.
Landlord shall have no liability to Tenant, and Tenant shall not be entitled to
terminate this Lease by virtue of any delays in completion of such repairs and
restoration, except that Tenant may terminate the Lease if the Premises are not
restored to a usable condition within 180 days of the casualty. Rent, however,
shall xxxxx on those portions of the Premise as are, from time to time,
untenantable as a result of such damage.
(b) Notwithstanding anything to the contrary herein set forth,
Landlord shall have no duty pursuant to this Paragraph 11 to repair or restore
any portion of any alterations, additions or improvements in the Premises or the
decorations thereto except to the extent that such alterations, additions,
improvements and decorations were provided by Landlord at the beginning of the
Term.
12. WAIVER OF CLAIMS - INDEMNIFICATION. To the extent not prohibited by
law, Landlord, Agent and their respective officers, directors, partners, agents,
servants and employees shall not be liable for, and it and they are hereby
released by Tenant from all liability for, any damage either to person or
property or resulting from the loss of use thereof or any other loss, or any
death, sustained by Tenant or by other persons claiming through Tenant due to
the Property or any part thereof or any appurtenances thereof becoming out of
repair, or due to the happening of any accident or event in, on or about the
Property, or due to any act or neglect of any tenant or occupant of the Building
or of any other person. This provision shall apply particularly, but not
exclusively, to damage caused by gas, electricity, snow, frost, steam, sewage,
sewer gas or odors, fire, water or by the bursting or leaking of pipes, faucets,
sprinklers, plumbing fixtures and windows, and whether or not such act or
neglect occurred before, at or after the execution of this Lease, and whether
the damage was due to any of the causes specifically enumerated above or to some
other cause of an entirely different kind. Tenant further agrees that all
personal property of Tenant upon the Premises, or upon loading docks, receiving
and holding areas, or elsewhere in, on or about the Property, shall be at the
risk of Tenant only, and that neither Landlord nor Agent, nor their partners,
directors or officers, shall be liable for any loss or damage thereto or theft
thereof. Without limitation of any other provisions hereof, Tenant agrees to
defend, protect, indemnify and save harmless Landlord and Agent, and their
respective partners, officers, directors and employees, from and against all
liability to third parties arising out of the acts or omissions of Tenant or any
subtenant or the servants, agents, employees, contractors, suppliers, workmen
and invitees of Tenant or any subtenant.
Tenant agrees to indemnify and save harmless, and upon request, defend,
Landlord, Agent, and their respective partners, directors, officers and
employees (herein called "indemnitees") against and from any and all claims by
or on behalf of any person, arising out of or related to:
(a) Tenant's use or occupancy of the Premises or the conduct of
its business, or any activity, work, or thing, permitted or suffered by Tenant,
in, on or about the Premises or the Property;
(b) any occurrence in, on or about the Premises;
(c) any breach or default on Tenant's part in the performance or
observance of, or compliance with, any term, covenant or condition on Tenant's
part to be performed pursuant to the terms of this Lease; or
(d) any act or negligence of Tenant or any subtenant, or any of
their respective agents, contractors, servants, employees, invitees or
licensees, and from and against all costs, counsel fees, expenses, penalties,
fines and liabilities which Landlord or any other indemnitee may suffer or incur
in connection with any such claim and any action or proceeding brought with
respect thereto. In the event that any action or proceeding shall be brought by
reason of any such claim, against any party to be indemnified hereunder, Tenant
covenants that Tenant, upon notice from such party and at Tenant's expense,
shall resist and defend such action or proceeding by counsel reasonably
satisfactory to such party. Notwithstanding anything to the contrary contained
in this Lease, in no event shall Tenant be responsible for, and in no event
shall Tenant's indemnity obligations apply to the gross negligence or wilful
misconduct of Landlord or Agent.
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13. NONWAIVER. No waiver of any provision of this Lease shall be
implied by any failure of Landlord to enforce any remedy on account of the
violation of such provision, even if such violation be continued or repeated
subsequently, and no express waiver shall affect any provision other than the
one specified in such waiver and that one only for the time and in the manner
specifically stated. No receipt of moneys by Landlord or its agents from Tenant
after the termination of this Lease shall in any way alter the length of the
Term or of Tenant's right of possession hereunder or after the giving of any
notice shall reinstate, continue or extend the Term or affect any notice given
Tenant prior to the receipt of such moneys, it being agreed that after the
service of notice or the commencement of a suit or after final judgment for
possession of the Premises, Landlord may receive and collect any rent due, and
the payment and acceptance of payment of rent shall not waive or affect said
notice, suit or judgment.
14. CONDEMNATION. In the event that the whole of the Premises
shall be lawfully condemned or taken for a public or quasi-public use, this
Lease shall terminate as of the date that possession is to be surrendered to the
condemnor or taking authority. In the event that there shall be a lawful
condemnation or taking for any public or quasi-public use of any part of the
Building, without there being condemned or taken all of the Premises, then, at
the option of Landlord, exercisable by notice given to Tenant not later than 90
days after the date upon which Landlord receives notice of the taking or
condemnation, this Lease shall terminate as of the date that possession of the
Premises taken is required to be surrendered to the condemnor or taking
authority. In the event of any such taking or condemnation of all or any part of
the Premises or of all or any part of the Property, Tenant shall have no claim
against Landlord and shall not have any claim or right to any portion of the
amount that may be awarded as damages or paid as a result of such taking or
condemnation; and all rights of Tenant to damages therefor are hereby assigned
by Tenant to Landlord and Tenant shall have no claim against Landlord or the
condemnor for the value of the unexpired term of this Lease. However, the
foregoing provisions of this paragraph shall not be construed to deprive Tenant
of the right to claim and receive payment from the condemnor or taking authority
for moving and related expenses as long as such claim or the payment thereof
does not reduce the award which Landlord would otherwise be entitled to receive.
In the event of any such taking or condemnation of part of the Premises, the
Base Rent, the Tax Adjustment and the Operating Expense Adjustment shall be
proportionately reduced from the date that possession is required to be
surrendered to the condemnor or taking authority.
15. ASSIGNMENT AND SUBLETTING. Tenant shall not, without the prior
written consent of Landlord (which shall not be unreasonably withheld in the
case of an assignment or subletting), (a) assign, convey or mortgage this Lease
or any interest hereunder; (b) suffer to occur or permit to exist any assignment
of this Lease, or any lien upon Tenant's interest hereunder, whether
voluntarily, involuntarily or by operation of law; (c) sublet the Premises or
any part thereof, or (d) permit the use of the Premises by any parties other
than Tenant and its employees. Any such action on the part of Tenant without
Landlord's consent, shall be void and of no effect. Landlord's consent to any
assignment, subletting or transfer or Landlord's election to accept any
assignee, subtenant or transferee as the tenant hereunder and to collect rent
from such assignee, subtenant or transferee shall not release Tenant or any
subsequent tenant from any covenant or obligation under this Lease. Landlord's
consent to any assignment, subletting or other act or occurrence requiring
Landlord's consent shall not constitute a waiver of Landlord's right to withhold
its consent to any future assignment, subletting or act or occurrence requiring
Landlord's consent. Without limitation of the circumstances in which Landlord's
withholding of consent to an assignment or subletting shall not be unreasonable,
it shall not be unreasonable for Landlord to withhold its consent if the
reputation, financial responsibility, or business of the proposed assignee or
subtenant is unsatisfactory to Landlord, or if Landlord deems such business to
be not consonant with that of other tenants in the Building, or if the intended
use by the proposed assignee or subtenant conflicts with any commitment made by
Landlord to any other tenant in the Building, or if in Landlord's judgment the
assignment or subletting will have financial consequences adverse to Landlord's
interest, or if the proposed assignee or subtenant shall be (i) a government or
any subdivision or agency thereof, (ii) a school, college, university or
educational institution of any type, whether for profit or non-profit or (iii)
an employment, recruitment or temporary help service or agency or (iv) an
existing or former tenant of the Project or any affiliate or guarantor thereof
who defaulted under any of its financial lease obligations to Landlord or any
affiliate of Landlord.
At least fifteen (15) business days prior to any proposed subletting or
assignment, Tenant shall submit to Landlord a statement seeking Landlord's
consent and containing the name and address of
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the proposed subtenant or assignee, the terms of the proposed sublease or
assignment (including, without limitation, the date upon which the assignee or
subtenant is to take possession and the amount of rent that Tenant will be
charging the proposed assignee or subtenant) and such financial and other
information with respect to the proposed assignee or subtenant as Landlord
reasonably may request. Landlord shall indicate its consent or non-consent
within fifteen (15) business days of its receipt of said statement.
Contemporaneously with any request or proposal by tenant to sublet or
assign any part of this Lease, Tenant shall pay all costs, including reasonable
attorneys' fees, incurred by Landlord (not to exceed $1000.00 in total in a
subletting, if Landlord's standard sublease form is utilized) or anticipated to
be incurred by Landlord, in connection with Landlord's investigation of any
financial or other information of the proposed assignee or subtenant. Landlord
may require that all or a portion of the costs or anticipated costs be paid in
advance by Tenant. The payment of such costs shall not obligate Landlord in any
way to consent to any proposed assignment or subletting nor shall the amount of
costs paid by Tenant be applied or used as a set-off to any amounts due or to
become due by Tenant to Landlord.
In addition to withholding its consent, Landlord shall have the
additional right, exercisable within such 30-day period, to terminate this Lease
in its entirety (where Tenant seeks to assign this Lease or sublet the entire
Premises) or as to that portion of the Premises which Tenant seeks to sublet
(where Tenant seeks to sublet only a portion of the Premises). Landlord may
exercise such right to terminate by giving written notice to Tenant at any time
prior to Landlord's written consent to such assignment or sublease. In the event
that Landlord exercises such right to terminate, the termination shall be
effective as of such date as Landlord may specify in its notice which shall not
be later than the later of (i) the proposed date for possession by such assignee
or subtenant, or (ii) 90 days after the date of Landlord's notice of termination
to Tenant; provided that Tenant may invalidate Landlord's termination by
revoking its request to assign or sublet within thirty (30) days after
Landlord's termination notice.
If Landlord fails to exercise its termination right and its right to
withhold its consent as set forth in the preceding paragraphs, Tenant shall pay
to Landlord 50% of all profit derived by Tenant from the assignment or
sublease. Whenever requested by Landlord, Tenant shall furnish Landlord with a
sworn statement, setting forth in detail the computation of profit (which
computation shall be based upon generally accepted accounting principles), and
Landlord, or its representatives, shall have access to the books, records and
papers of Tenant in relation thereto, and to make copies thereof. Any rent in
excess of that paid by Tenant hereunder realized by reason of such assignment or
sublease shall be deemed an item of such profit. Such percentage of Tenant's
profits shall be paid to Landlord promptly by Tenant upon Tenant's receipt from
time to time of periodic payments from such assignee or subtenant or at such
other earlier time as Tenant shall realize its profits from such assignment or
sublease.
Landlord and Tenant further agree that Tenant shall not publish or
otherwise disseminate any printed advertising material in connection with any
proposed assignment or sublease of all or any portion of the Premises (the
"Advertising") without Landlord's prior written approval of the same, which
approval shall not be unreasonably withheld; provided, however, that no
Advertising shall contain any reference to the price to be charged in connection
with any proposed assignment or sublease, excluding, however, any proposal
letters or other such materials provided to prospects with which Tenant is
actively negotiating.
Notwithstanding anything to the contrary set forth in this Paragraph,
and subject to all of the provisions of this Lease, Tenant may assign this Lease
to or permit any corporation or other business entities which, directly or
indirectly, control, are controlled by, or are under common control with Tenant
(each, a "Related Corporation") to sublet the Premises for any of the purposes
permitted to tenant under this Lease (subject, however, to compliance with
Tenant's obligations under this Lease) provided that (a) Tenant shall not then
be in default (after any applicable grace and/or cure periods, in the
performance of any of its obligations under this Lease), and (b) prior to such
assignment or subletting, Tenant furnishes Landlord with the name of any such
Related Corporation, together with the written certification of Tenant that such
entity is a Related Corporation of Tenant. Any such subletting shall not be
deemed to vest in any such Related Corporation any right or interest in this
Lease or the Premises nor shall any such subletting or
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assignment relieve, release, impair or discharge any of Tenant's obligations
hereunder. For the purposes hereof, "control" shall be deemed to mean ownership
of not less than 51% of all of the legal and equitable interest in any other
business entities.
16. HOLDOVER. If Tenant or any person claiming through Tenant shall
retain possession of the Premises or any part thereof after the expiration or
earlier termination of the Term and if Landlord shall consent to such
continuation of possession, such possession shall be (unless the parties hereto
shall otherwise have agreed in writing) deemed to be under a month-to-month
tenancy which shall continue until either party shall notify the other in
writing, at least 30 days prior to the end of any calendar month, that the party
giving such notice elects to terminate such tenancy at the end of such calendar
month, in which event such tenancy shall so terminate. Anything contained in the
foregoing provisions of this paragraph to the contrary notwithstanding, with
respect to each such monthly period and in addition to other rent and charges
due under this Lease, Tenant shall pay rent equal to 1/9 of the per annum Base
Rent and 1/9 of the Tax Adjustment Amount, the Expense Adjustment Amount, and
Additional Services Charge (calculated in accordance with the provisions of
Paragraph 4 hereof) which would have been payable had this Lease been renewed
until the end of the calendar year which includes such month on the terms and
conditions in effect immediately prior to the expiration or termination of the
Term; and such month-to-month tenancy with Landlord's consent shall be upon the
same terms and subject to the same conditions as those which are set forth in
this Lease except as aforesaid. If Tenant or any person claiming through Tenant
shall retain possession of the Premises or any part thereof, after the
expiration or earlier termination of the term or of Tenant's right of
possession, and if such retention shall be without Landlord's consent, Tenant
shall pay Landlord (a) for each month or portion thereof during which such
possession continues, an amount equal to the rental to be paid for each month
pursuant to the foregoing provisions of this Paragraph when such possession is
with Landlord's consent, plus all other sums which would have been payable
hereunder had the term continued during such retention of possession and (b) all
other damages sustained by Landlord, whether direct or consequential, by reason
of such retention of possession. During any such retention of possession without
Landlord's consent, all of Tenant's obligations with respect to the use,
occupancy and maintenance of the Premises shall continue. The provisions of this
Paragraph 16 shall not be deemed to limit or constitute a waiver of any other
rights or remedies of Landlord provided herein or at law or in equity and
applicable to unlawful retention of possession or otherwise.
17. ESTOPPEL CERTIFICATE. Tenant shall from time to time, within ten
days after Tenant's receipt of Landlord's request therefor, execute, acknowledge
and deliver to Landlord a written instrument in recordable form (a) certifying
(i) that this Lease is in full force and effect and has not been modified,
supplemented or amended in any way (or, if there have been modifications,
supplements or amendments thereto, that it is in full force and effect as
modified, supplemented or amended, and stating such modifications, supplements
and amendments) and that this Lease (as modified, supplemented or amended, as
aforesaid) represents the entire agreement among Landlord and Tenant as to the
Premises and the leasehold; (ii) the dates to which the Base Rent, Additional
Rent and other charges arising hereunder have been paid, (iii) the amount of any
prepaid rents or credits due to Tenant, if any; and (iv) that if applicable,
Tenant has entered into occupancy of the Premises; and (b) stating, to the best
knowledge of Tenant, whether or not all conditions under the Lease to be
performed by Landlord prior to the date of such certificate have been satisfied
and whether or not Landlord is then in default in the performance of any
covenant, agreement or condition contained in this Lease and specifying, if any,
each such unsatisfied condition and each such default; and (c) stating any other
fact or certifying any other condition reasonably requested by Landlord,
Landlord's Mortgagee (as defined below), or any prospective mortgagee or
purchaser of the Property or of any interest therein.
18. SUBORDINATION.
(a) This Lease shall be subject and subordinate at all times to
the lien of any mortgage, deed of trust, or other security instrument, or ground
lease, master lease, or primary lease heretofore or hereafter placed by Landlord
on the Property or any part thereof and of all renewals, modifications,
consolidations, replacements and extensions thereof (all of which are
hereinafter referred to collectively as "Mortgage"), all automatically and
without the necessity of any further act on the part of Tenant to effectuate
such subordination. Tenant shall, at the request of the holder of any Mortgage
("Landlord's Mortgagee"), upon foreclosure thereof attorn to Landlord's
Mortgagee. Tenant shall also execute, acknowledge and deliver, within 15 days
after Tenant's receipt of demand
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from Landlord or Landlord's Mortgagee, such other instrument or instruments
evidencing such subordination of Tenant's right, title and interest under this
Lease to the lien of the Mortgage and such other instrument or instruments of
attornment, as shall be desired by Landlord's Mortgagee. With respect to any
Mortgage first encumbering the Building subsequent to the Commencement Date of
the Lease, upon Tenant's request, Landlord will use its good faith efforts to
cause Landlord's Mortgagee to agree that so long as Tenant is not in default of
its obligations under the Lease, the Lease will not be terminated and Tenant's
possession of the Premises will not be disturbed by the termination or
foreclosure, or proceeds for enforcement, of such Mortgage.
(b) Anything contained in the foregoing provisions of this
Paragraph 18 to the contrary notwithstanding, Landlord's Mortgagee may at any
time subordinate its Mortgage to this Lease, without the necessity of obtaining
Tenant's consent, by giving notice of the same in writing to Tenant, and
thereupon this Lease shall be deemed to be prior to the Mortgage without regard
to its date of execution, delivery, or recordation or the date of commencement
of Tenant's possession, and in that event Landlord's Mortgagee shall have the
same rights with respect to this Lease as though this Lease shall have been
executed, delivered and recorded prior to the execution and delivery of the
Mortgage.
(c) If Landlord is or becomes lessee of premises of which the
Premises are a part, Tenant agrees that, automatically and without the necessity
of any further act, Tenant's possession shall be as a subtenant and shall be
subordinate to the interest of Landlord's lessor, its heirs, personal
representatives, successors and assigns (which lessor, its heirs, personal
representatives, successors and assigns, or any of them, is hereinafter called
"Paramount Lessor"), but notwithstanding the foregoing, if Landlord's tenancy
shall terminate by expiration, by forfeiture or otherwise, then Tenant hereby
agrees, upon request of Paramount Lessor, to attorn to Paramount Lessor, and to
recognize such lessor as Tenant's landlord for the balance of the term of this
lease and any extensions or renewals hereof. Tenant shall execute, acknowledge
and deliver, upon demand by Landlord or Paramount Lessor, such other instrument
or instruments evidencing such subordination of Tenant's right, title and
interest under this Lease to the interest of such lessor, and such other
instrument or instruments of attornment, as shall be prescribed by such lessor.
19. CERTAIN RIGHTS RESERVED BY LANDLORD. Landlord shall have the
following rights, each of which Landlord may exercise without notice to Tenant
and without liability to Tenant for damage or injury to property, person or
business on account of the exercise thereof, and the exercise of any such rights
shall not be deemed to constitute an eviction or disturbance of Tenant's use or
possession of the Premises and shall not give rise to any claim for set-off or
abatement of rent or any other claim:
(a) to change the Building's name or street address;
(b) to install, affix and maintain any and all signs on the
exterior and on the interior of the Building;
(c) to decorate or to make changes, repairs, alterations,
additions, or improvements, whether structural or otherwise (including
alterations in the configuration of, and elimination of, any common areas), in
and about the Building and Property or any part thereof, and for such purposes
to enter upon the Premises, and during the continuance of any of said work, to
temporarily close doors, entry ways, public space and corridors in the Building
and to interrupt or temporarily suspend services or use of facilities; but
Landlord shall endeavor to perform any such work in or about the Premises so as
to cause the minimum inconvenience to Tenant practicable under the
circumstances;
(d) to designate and approve all window coverings used in the
Building;
(e) to approve, disapprove or restrict the weight, size and
location of safes, vaults and other heavy equipment and articles in and about
the Premises and the Building so as not to exceed the live load per square foot
designated by the structural engineers for the Building, and to require all such
items and furniture and similar items to be moved into or out of the Building
and Premises only at such times and in such manner as Landlord shall direct in
writing. Tenant shall not install or operate machinery or any mechanical devices
of a nature not directly related to Tenant's ordinary use of the Premises
without the prior written consent of Landlord. Tenant's movements of
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property into or out of the Building or Premises and within the Building are
entirely at the risk and responsibility of Tenant, and Landlord reserves the
right to require permits before allowing any property to be moved into or out of
the Building or Premises;
(f) to establish controls for the purpose of regulating all
property and packages, both personal and otherwise, to be moved into or out of
the Building and Premises and all persons using the Building after normal office
hours;
(g) to regulate delivery and service of supplies in order to
insure the cleanliness and security of the Premises and to avoid congestion of
the loading docks, receiving areas and freight elevators;
(h) to show the Premises to prospective tenants at reasonable
hours during the last twelve months of the Term and, if vacated or abandoned, to
show the Premises at any time and to prepare the Premises for re-occupancy;
(i) to erect, use and maintain pipes, ducts, wiring and conduits,
and appurtenances thereto, in and through the Premises at reasonable locations;
and
(j) to enter the Premises at any reasonable time to inspect the
Premises.
20. RULES AND REGULATIONS. Tenant shall, and shall cause all of its
subtenants and occupants, its and their agents, employees, invitees and
licensees to, observe faithfully, and comply strictly with, the rules and
regulations attached to this Lease as Exhibit "B", as they may be supplemented
and revised by Landlord from time to time, and such other rules and regulations
promulgated from time to time by Landlord, as in Landlord's judgment may be
desirable for the safety, care and cleanliness of the Building and the Premises,
or for the preservation of good order therein. Landlord shall not be liable to
Tenant for violation of such rules and regulations by, or for Landlord's failure
to enforce the same against, any other tenant, its subtenants and occupants and
its and their agents, employees, invitees or licensees, nor shall any such
violation or failure constitute, or be treated as contributing to, an eviction,
actual or constructive, or affect Tenant's covenants and obligations hereunder,
or allow Tenant to reduce, xxxxx or offset the payment of any rent under this
Lease. Landlord shall use reasonable efforts to enforce the rules and
regulations against all tenants in a nondiscriminatory manner.
21. REMEDIES.
(a) If (1) default shall be made in the payment of any rent or any
installment thereof or in the payment of any other sum required to be paid by
Tenant under this Lease or under the terms of any other agreement between
Landlord and Tenant and such default shall continue for five (5) days after
notice by Landlord; provided, however, that Tenant shall not be entitled to more
than one (1) notice of delinquent rent or installments thereof (including
Expense and Tax Adjustment Amounts) in any two calendar years and, if thereafter
during that two-year calendar period any rent is not paid when due a default
shall occur, or (2) if default shall be made in the observance or performance of
any of the other agreements, covenants or conditions in this Lease (or in any
other agreement between Landlord and Tenant) which Tenant is required to observe
and perform and such default shall continue for fifteen (15) days after written
notice to Tenant, or (3) the interest of Tenant in this Lease shall be levied on
under execution or other legal process; or
(b) if Tenant becomes the subject of commencement of an
involuntary case under the federal bankruptcy law as now or hereafter
constituted, or there is filed a petition against Tenant seeking reorganization,
arrangement, adjustment or composition of or in respect of Tenant under the
federal bankruptcy law as now or hereafter constituted, or under any other
applicable federal or state bankruptcy, insolvency, reorganization or other
similar law, or seeking the appointment of a receiver, liquidator or assignee,
custodian, trustee, sequestrator (or similar official) of Tenant or any
substantial part of its property, or seeking the winding-up or liquidation of
its affairs and such involuntary case or petition is not dismissed within sixty
(60) days after the filing thereof, or if Tenant commences a voluntary case or
institutes proceedings to be adjudicated a bankrupt or insolvent, or consents to
the institution of bankruptcy or insolvency proceedings against it, under the
Federal bankruptcy laws as now or hereafter constituted, or any other applicable
Federal or state bankruptcy or insolvency or
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other similar law, or consents to the appointment of or taking possession by a
receiver or liquidator or assignee, trustee, custodian, sequestrator (or other
similar official) of Tenant or of any substantial part of its property, or makes
any assignment for the benefit of creditors or admits in writing its inability
to pay its debts generally as they become due or fails to generally pay its
debts as they become due or if Tenant or its stockholders or board of directors
or any committee thereof takes any corporate action in contemplation,
preparation or furtherance of or for any of the occurrences, steps, procedures,
proceedings or other items mentioned in this subparagraph (b); or
(c) Landlord may treat the occurrence of any one or more of the
foregoing events as a breach of this Lease, and thereupon at its option may,
without notice or demand of any kind to Tenant or any other person, have any one
or more of the following described remedies in addition to all other rights and
remedies provided at law or in equity or elsewhere herein:
(i) At the option of Landlord, the whole balance of Rent,
charges and all other sums payable hereunder, whether or not payable as Rent,
for the entire balance of the Term, herein reserved or agreed to be paid by
Tenant, discounted to present value at Prime Rate, as hereinafter defined, or
any part of such rent, charges and other sums, and also all or any costs and
sheriff's, marshall's, constable's or other official's fees and charges, whether
chargeable to Landlord or Tenant, shall be taken to be due and payable from
Tenant and in arrears as if by the terms of this Lease said balance of rent,
charges and other sums and expenses were on that date payable in advance; or
(ii) Landlord, by giving written notice to Tenant, may
terminate this Lease and the Term, in which event Landlord may immediately
repossess the Premises by legal proceedings, force or otherwise; or
(iii) Landlord, by giving written notice to Tenant, may
terminate Tenant's right of possession and may immediately repossess the
Premises by legal proceedings, force or otherwise, without terminating this
Lease.
(iv) After reentry, retaking, repossessing or recovering of
the Premises, whether or not Landlord has terminated this Lease, Landlord may,
but shall be under no obligation to, relet the same or any portion thereof for
such rent and upon such terms as shall be deemed advisable by Landlord; and
whether or not the Premises are relet, Tenant shall be liable for any loss of
rent for such period as would be the balance of the term of this Lease plus the
costs and expenses of reentry, retaking, repossession and recovering, and of
reletting and of redecorating, remodelling and making repairs and alterations to
the Premises for the purpose of reletting, the amount of such liability to be
computed monthly and paid by Tenant to Landlord at the end of each month after
deducting rents received from any reletting. Landlord shall in no event have any
duty to relet the Premises, nor shall any damages or other sums to be paid by
Tenant to Landlord be reduced by any failure to relet the Premises or failure to
collect the rent from any reletting. Tenant shall not be entitled to any rents
received by Landlord in excess of the rents provided for in this Lease. Tenant
agrees that Landlord may file suit to recover any sums falling due under the
terms of this Paragraph 21 from time to time and that no suit or recovery of any
portion due Landlord hereunder shall be any defense to any subsequent action
brought for any amount not theretofore reduced to judgment in favor of Landlord.
If Landlord relets the Premises, such reletting shall not be considered a
termination of this Lease unless Landlord has given Tenant a notice wherein
Landlord expressly states that this Lease is terminated.
(v) If Landlord shall terminate this Lease as provided in
subparagraph (b) above, Landlord, at its option, shall be entitled to recover as
damages the excess, if any, at the time of such termination, of the amount of
the Base Rent payable under this lease for the balance of the term of this Lease
(including, any extension options which have been exercised) over the then fair
rental value of the Premises for the same period, plus all costs and expenses of
Landlord caused by Tenant's default, including, but not limited to, reasonable
attorney's fees.
If any payment of Rent or any other sum, or any part of any such
payment, to be made by Tenant under the terms of this Lease shall become overdue
for a period in excess of five (5) days Tenant shall pay to Landlord (x) a "late
charge" of $.05 for each dollar so overdue, for the purpose of defraying the
expense incident to handling such overdue or delinquent payment, and (y)
interest on the overdue amount at the Lease Interest Rate (defined below) from
the date when such payment
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was due until the date paid, but in no event more than the amount or rate which
is the maximum amount or rate Landlord may lawfully charge in respect of Tenant
in such circumstances under applicable law. The "Lease Interest Rate" shall mean
the greater of 18% per annum or such variable rate which is from time to time
equal to 3% above the prime rate as stated by US Bank, Denver, Colorado or its
successor ("Prime Rate"), or, in the absence of there being a successor to US
Bank, by such other bank having an office in the City of Denver, as Landlord may
from time to time select. Nothing herein shall be construed as waiving any
rights of Landlord arising out of any default of Tenant by reason of Landlord's
accepting any such late charge or interest; the right to collect a late charge
and interest is separate and apart from any other rights or remedies of Landlord
after default by Tenant.
Without limiting the generality of the foregoing, if Tenant shall be in
default in the performance of any of its obligations hereunder, Landlord may
(but shall not be obligated to), in addition to any other rights it may have in
law or in equity, cure such default on behalf of Tenant, and Tenant shall
reimburse Landlord upon demand for any sums paid or costs incurred by Landlord
in curing such default, including reasonable attorneys' fees and other legal
expenses, together with interest at the Lease Interest Rate from the dates of
Landlord's incurring of costs or expenses.
All remedies available to Landlord hereunder and otherwise available at
law or in equity shall be cumulative and concurrent. No termination of this
Lease nor taking or recovering possession of the Premises shall deprive Landlord
of any remedies or actions against Tenant for Rent, for charges, or for damages
for the breach of any term, covenant or condition herein contained, nor shall
the bringing of any such action for Rent, charges or breach of term, covenant or
condition, nor the resort to any other remedy or right for the recovery of Rent,
charges or damages for such breach be construed as a waiver or release of the
right to insist upon the forfeiture and to obtain possession. The failure of
Landlord to insist upon strict or prompt performance of the terms, agreements,
covenants and conditions of this Lease or any of them, or the acceptance of such
performance thereafter shall not constitute or be construed as a waiver of
Landlord's right to thereafter enforce the same strictly according to the tenor
thereof in the event of a continuing or subsequent default.
Notwithstanding anything in this Paragraph 21 or any other provision of
this Lease to the contrary, this Lease shall not be terminated by service upon
Tenant of a notice from Landlord demanding payment of Rent or possession of the
Premises following default by Tenant, or by any action of Tenant to vacate the
Premises following receipt of such a notice, unless the notice served by
Landlord includes a statement expressly terminating this Lease. Further,
Landlord reserves the right to receive payment of all unaccrued Rent for the
balance of the Term originally contemplated under Paragraph 1 of this Lease (and
any extensions or renewals thereof to which Tenant shall have become bound,
discounted to present value at Prime Rate) following service of such a notice
for payment or possession, or a notice terminating this Lease for Tenant's
default.
22. EXPENSES OF ENFORCEMENT. Tenant shall pay upon demand all
Landlord's costs, charges and expenses, including the fees and out-of-pocket
expenses of counsel, agents and others retained by Landlord, incurred by
Landlord, whether or not suit brought, in enforcing Tenant's obligations
hereunder or in collecting any amounts due from Tenant or any subtenant or
assignee hereof or in enforcing any provision of this Lease or in any
litigation, negotiation or transaction in which Tenant causes landlord without
Landlord's fault to become involved or concerned or in reletting the premises or
any portion thereof after default by Tenant.
23. COVENANT OF QUIET ENJOYMENT. Landlord covenants that Tenant, on
paying the Rent, charges for services and other payments herein reserved or
required and on keeping, observing and performing all the other terms,
covenants, conditions, provisions and agreements herein contained on the part of
Tenant to be kept, observed and performed, shall, during the Term, peaceably and
quietly have, hold and enjoy the Premises free from interference by Landlord or
any person claiming by, from or under Landlord, subject, however, to the terms,
covenants, conditions, provisions and agreements hereof.
24. SECURITY DEPOSIT. Upon the execution of this Lease, Tenant shall
deposit with Landlord the sum of $39,064.48 (hereinafter referred to as
"Collateral"), as security for the prompt, full and faithful performance by
Tenant of each and every provision of this Lease and of all obligations of
Tenant hereunder. No interest shall be paid to Tenant on the Collateral and
Landlord may co-mingle the collateral with any other funds of Landlord.
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If Tenant fails to perform any of its obligations hereunder, Landlord
may use, apply or retain the whole or any part of the Collateral for the payment
of (a) any rent or other sums of money which Tenant may not have paid when due,
(b) any sum expended by Landlord on Tenant's behalf in accordance with the
provisions of this Lease, or (c) any damages which Landlord may sustain or sums
which Landlord may expend or be required to expend by reason of Tenant's
default, including, without limitation, any damage or deficiency in or from the
reletting of the Premises as provided in Paragraph 21. The use, application or
retention of the Collateral, or any portion thereof, by Landlord shall not
prevent Landlord from exercising any other right or remedy provided by this
Lease or by law (it being intended that Landlord shall not first be required to
proceed against the Collateral) and shall not operate as a limitation on any
recovery to which Landlord may otherwise be entitled. If any portion of the
Collateral is used, applied or retained by Landlord for the purposes set forth
above, Tenant agrees, within ten days after the written demand therefor is made
by Landlord, to deposit cash with Landlord in an amount sufficient to restore
the Collateral to its original amount.
If Tenant shall fully and faithfully comply with all of the provisions
of this Lease, the Collateral, or any balance thereof, shall be returned to
Tenant without interest after the expiration of the Term or upon any later date
after which Tenant has vacated the Premises. In the absence of evidence
satisfactory to Landlord of any permitted assignment of the right to receive the
Collateral, or of the remaining balance thereof, Landlord may return the same to
the original Tenant, regardless of one or more assignments of Tenant's interest
in this Lease or the Collateral. In such event, upon the return of the
Collateral, or the remaining balance thereof to the original Tenant, Landlord
shall be completely relieved of liability under this Paragraph 24 or otherwise
with respect to the Collateral.
Tenant acknowledges that Landlord has the right to transfer or mortgage
its interest in the Property and in this Lease and Tenant agrees that in the
event of any such transfer or mortgage, Landlord shall have the right to
transfer or assign the Collateral to the transferee or mortgagee. Upon written
acknowledgment of transferee's or mortgagee's receipt of such Collateral,
Landlord shall thereby be released by Tenant from all liability or obligation
for the return of such Collateral and Tenant shall look solely to such
transferee or mortgagee for the return of the Collateral.
The Collateral shall not be mortgaged, assigned or encumbered in any
manner whatsoever by Tenant.
25. REAL ESTATE BROKER. Tenant represents that Tenant has dealt with
(and only with) Amerimar Realty Management Co. - Colorado, Xxxxx X.X. Xxxx,
Broker, Ltd., and The Xxxxx Group as brokers in connection with this Lease, and
that insofar as Tenant knows, no other broker negotiated this Lease or is
entitled to any commission in connection therewith. Landlord and Tenant agree to
indemnify, defend and hold each other harmless from and against any claims, for
a commission or other compensation in connection with this Lease, made by any
broker or finder other than the brokers named above who claims to have dealt
with or communicated to Tenant in connection with this Lease, provided that
Landlord has not in fact retained such other broker or finder.
26. MISCELLANEOUS.
(a) RIGHTS CUMULATIVE. All rights and remedies of Landlord under
this Lease shall be cumulative and none shall exclude any other rights or
remedies allowed by law, in equity or otherwise.
(b) CAPTIONS AND USAGE. The titles appearing in connection with
the various sections and paragraphs of this lease are for convenience only; they
are not intended to indicate all of the subject matter in the text and they are
not to be used in interpreting this Lease nor for any other purpose in the event
of any controversy. As used herein (i) the term "person" shall be deemed to
include a natural person, a trustee, a corporation, a partnership, a
governmental unit and any other form of legal entity; (ii) all usages in the
singular or plural number shall be deemed to have been made, respectively, in
the plural or singular number as well; the use of any gender includes all
genders.
(c) BINDING EFFECT. Each of the provisions of this Lease shall
extend to and shall, as the case may require, bind or inure to the benefit not
only of Landlord and of Tenant, but also of their respective successors or
assigns, provided this clause shall not permit any assignment by Tenant contrary
to the provisions of Xxxxxxxxx 00 xxxxxx.
00
00
(x) LEASE CONTAINS ALL TERMS. There are no promises,
representations, warranties or undertakings by, or binding upon, Landlord with
respect to the Building, the Premises or the Real Property, including, but not
limited to, any with regard to alteration, remodeling, redecorating or
installation of equipment or fixtures in the Premises, except those, if any,
that are expressly set forth in this Lease. No modification, waiver or amendment
of this Lease or of any of its conditions or provisions shall be binding upon
Landlord unless in writing signed by Landlord or by a duly authorized agent of
Landlord empowered by a written authority signed by Landlord.
(e) SUBMISSION OF LEASE. The submission of this Lease to Tenant,
or its broker or other agent, does not constitute an offer to Tenant to lease
the Premises. This Lease shall have no force and effect until (a) it is executed
and delivered by Tenant to Landlord and (b) it is fully reviewed and executed by
Landlord and delivered to Tenant.
(f) NO AIR RIGHTS. No rights to any view or to light or air over
any property, whether belonging to Landlord or any other person, are granted to
Tenant by this Lease.
(g) MODIFICATION OF LEASE. If any lender requires, as a condition
to its lending funds, the repayment of which is to be secured by a mortgage or
trust deed on the Property or any part thereof, that certain modifications be
made to this Lease, which modifications will not require Tenant to pay any
additional amounts or otherwise change materially the rights or obligations of
Tenant hereunder, Tenant shall, upon Landlord's request, execute appropriate
instruments effecting such modifications.
(h) SUBSTITUTION OF OTHER PREMISES. [Intentionally omitted]
(i) TRANSFER OF LANDLORD'S INTEREST. Notwithstanding anything
contained herein to the contrary, Tenant agrees that neither Landlord nor any
partner in Landlord, nor any other person having any interest, direct or
indirect, immediate or more removed than immediate, in Landlord, shall have any
personal liability with respect to any of the provisions of this Lease and
Tenant shall look solely to the estate and property of Landlord in the Property
for the satisfaction of Tenant's remedies, including without limitation, the
collection of any judgment or the enforcement of other judicial process
requiring the payment or expenditure of money by Landlord, subject, however, to
the prior rights of any holder of any mortgage covering all or part of the
Property, and no other assets of Landlord or its partners, or of any other
aforesaid person having an interest in Landlord, shall be subject to levy,
execution or other judicial process for the satisfaction of Tenant's claims.
Without limitation of the foregoing, upon each transfer of the Building and
Landlord's interest in this Lease, the transferor shall automatically be
released from all liability and obligations under this Lease.
(j) RECORDING; SHORT FORM MEMO. This Lease shall not be recorded
by Tenant. If it is recorded by Tenant, Landlord shall have the right to
terminate this Lease as of the date of recording or thereafter and Landlord
shall have all rights and remedies provided in the case of default by Tenant
hereunder. If requested by Landlord, Tenant shall execute, in recordable form, a
short form memorandum of lease that may, at Landlord's option, be placed of
record. In addition, if requested by Landlord, Tenant shall execute a memorandum
of lease to be filed with the Colorado Department of Revenue, on such form as
may be prescribed by said Department, within ten days after the execution of
this Lease, or any other such memorandum, so that Landlord may avail itself of
the provision of statutes such as C.R.S. Section 39-22-604(7)(c).
(k) COVENANTS AND CONDITIONS. All of the covenants of Tenant
hereunder shall be deemed and construed to also be "conditions", if Landlord so
elects, as well as "covenants" as though the words specifically expressing or
importing covenants and conditions were used in each separate instance. Tenant's
covenants to pay rent are independent of any other covenant, agreement, term or
condition of this Lease.
(1) APPLICATION OF PAYMENTS. Landlord shall have the right to
apply payments received from Tenant pursuant to this Lease (regardless of
Tenant's designation of such payments) to satisfy any obligations of Tenant
hereunder, in such order and amounts as Landlord in its sole discretion, may
elect.
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(m) SECURITY INTEREST. [Intentionally omitted]
(n) GOVERNING LAW; PARTIAL INVALIDITY. This Lease shall be
governed and construed in accordance with the law of the state in which the
Premises is located. If any term, provision of condition contained in this Lease
shall, to any extent, be invalid or unenforceable, the remainder of this Lease
(or the application of such term, provision or condition to persons or
circumstances other than those in respect of which it is invalid or
unenforceable) shall not be affected thereby, and each and every other term,
provision and condition of this Lease shall be valid and enforceable to the
fullest extent possible permitted by law.
(o) HAZARDOUS MATERIALS. Tenant shall not store highly flammable
materials or goods, explosives, perishable foodstuffs, contraband, live animals,
materials or goods which emit odors in or upon the Premises. The Tenant
covenants that it shall not store, use or possess nor permit the storage, use or
possession of any Hazardous Substance (hereinafter defined) upon the Premises.
Hazardous Substance for purposes of this Lease shall mean, without limitation,
any flammable explosives, radon, radioactive materials, asbestos,
urea-formaldehyde foam insulation, polychlorinated biphenyls, petroleum and
petroleum based products, methane, hazardous materials, hazardous wastes,
hazardous or toxic substances or related materials, as defined in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, 42 U.S.C. Sections 9601, et seq. (including the so-called "Superfund"
amendments thereto); the Toxic Substances Control Act, as amended, 15 U.S.C.
Sections 2601, et seq.; the Resource Conservation and Recovery Act of 1976, as
amended, 42 U.S.C. Sections 6901, et seq.; the Hazardous Materials
Transportation Act, as amended, 49 U.S.C. Sections 5101, et seq. (formerly 49
U.S.C. 1801, et seq.); or any other similar law, rule, regulation or statute
concerning the protection of the environment (collectively "Environmental
Laws"). Tenant hereby covenants and agrees, at its sole cost and expense, to
indemnify, protect and defend and save harmless the Landlord and any of its
members, managers, employees and agents from and against any and all damages,
losses, liabilities, obligations, penalties, claims, litigation, demands,
defenses,judgments, suits, actions, proceedings, costs, disbursements and
expenses (including, without limitation, attorneys' and experts' fees, expenses
and disbursements) of any kind or nature whatsoever which may at any time be
imposed upon, incurred by or asserted or awarded against the Landlord, its
members, managers, agents or employees relating to, resulting from or arising
out of Tenant's failure to comply with its obligations under the foregoing
section or Tenant's violation of any Environmental Law with respect to its use
of the Premises. Notwithstanding any provision contained in this Lease to the
contrary, the indemnification provisions set forth in this subparagraph 26(o)
shall survive any expiration or termination of this Lease. Landlord shall
indemnify Tenant with respect to any Hazardous Substance, as defined pursuant to
Environmental Laws in effect as of the date of this Lease, which existed in the
Premises prior to the date Tenant accepted possession thereof, or was placed
therein by Landlord, Agent, or their contractors, agents or employees.
(p) WARRANTY DISCLAIMER. LANDLORD AND TENANT EXPRESSLY DISCLAIM
ANY IMPLIED WARRANTY THAT THE PREMISES ARE SUITABLE FOR TENANT'S INTENDED
COMMERCIAL PURPOSE, AND TENANT'S OBLIGATION TO PAY RENT HEREUNDER IS NOT
DEPENDENT UPON THE CONDITION OF THE PREMISES OR THE PERFORMANCE BY LANDLORD OF
ITS OBLIGATIONS HEREUNDER, AND, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN,
TENANT SHALL CONTINUE TO PAY THE RENT, WITHOUT ABATEMENT, SETOFF OR DEDUCTION,
NOTWITHSTANDING ANY BREACH BY LANDLORD OF ITS DUTIES OR OBLIGATIONS HEREUNDER,
WHETHER EXPRESS OR IMPLIED.
(q) WAIVER OF TRIAL BY JURY. LANDLORD AND TENANT SHALL, AND HEREBY
DO, WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY
EITHER OF THE PARTIES HERETO AGAINST THE OTHER ON ANY MATTERS WHATSOEVER ARISING
OUT OF OR IN ANY WAY CONNECTED WITH THE LEASE, THE RELATIONSHIP OF LANDLORD AND
TENANT, TENANT'S USE OR OCCUPANCY OF THE PREMISES, AND ANY EMERGENCY STATUTORY
OR ANY OTHER STATUTORY REMEDY.
(r) FORCE MAJEURE. Other than for Tenant's obligations under this
Lease that can be performed by the payment of money (e.g., payment of Rent and
maintenance of insurance), whenever a period of time is herein prescribed for
action to be taken by either party hereto, such party
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shall not be liable or responsible for, and there shall be excluded from the
computation of any such period of time, any delays due to strikes, riots, acts
of God, shortages of labor or materials, war, governmental laws, regulations, or
restrictions, or any other causes of any kind whatsoever which are beyond the
control of such party.
(s) LIST OF EXHIBITS. All exhibits and attachments attached hereto
are incorporated herein by this reference:
Addendum
Exhibit A Plan
Exhibit A-1 Suites 940 and 950
Exhibit A-2 Suite 300
Exhibit A-3 Xxxxx 000
Xxxxxxx X-0 Xxxxx 000
Xxxxxxx X Rules and Regulations
Exhibit C Lease Term Agreement
Exhibit D Parking Agreement
27. TELEPHONE AND TELECOMMUNICATIONS SERVICE.
(a) Tenant acknowledges and agrees that all telephone and
telecommunications services ("Telecommunications Services") desired by Tenant
shall be ordered and utilized at the sole expense of Tenant. Unless Landlord
otherwise requests or consents in writing, all equipment, apparatus and devices,
including without limitation wiring and cables, for the provisions of
Telecommunications Services (the "Telecommunications Equipment") shall be and
remain solely in the Premises. Unless otherwise specifically agreed in writing,
Landlord shall have no responsibility for the maintenance of Tenant's
Telecommunications Equipment, nor for any wiring or other infrastructure to
which Tenant's Telecommunications Equipment may be connected. Tenant agrees
that, to the extent any Telecommunications Services are interrupted, curtailed
or discontinued, Landlord shall have no obligation or liability with respect
thereto and it shall be the sole obligation of Tenant, at its sole expense, to
obtain substitute service.
(b) Landlord shall have the right, upon such notice as is
practicable in the case of emergencies, and otherwise upon reasonable prior
notice to Tenant, to interrupt or turn off telecommunications facilities in the
event of emergency or as necessary in connection with repairs to the Building or
installation of telecommunications equipment for other tenants of the Building.
(c) Any and all Telecommunications Equipment installed in the
Premises, or elsewhere in the Building by or on behalf of Tenant, including
wiring and other facilities for the provision of Telecommunications Services,
shall be removed by Tenant upon the expiration or earlier termination of the
Term of this Lease, by Tenant at its sole expense or, at Landlord's election, by
Landlord at Tenant's sole expense, with the cost thereof to be paid as
Additional Rent under this Lease.
(d) If the Telecommunications Equipment is not removed within
thirty (30) days of the termination or expiration ofthis Lease, the
Telecommunications Equipment shall conclusively be deemed to have been abandoned
and may be removed, appropriated, sold, stored, destroyed, otherwise disposed
of, or retained and used, by Landlord without notice to Tenant, without
obligation to account therefor, and without payment to Tenant or credit against
any amount due from Tenant to Landlord pursuant to this Lease. Tenant shall pay
to Landlord upon demand all costs of any such removal, disposition and storage
of the Telecommunications Equipment, as well as all costs to repair any damage
to the Building caused by such removal.
(e) In the event that Tenant wishes at any time to utilize the
services of a telephone or telecommunications provider whose equipment is not
then servicing the Building (a "New Provider"), no such New Provider shall be
permitted to install its lines or other equipment within the Building without
first securing the prior written approval of Landlord, which approval may be
withheld in Landlord's sole and absolute discretion. Landlord's approval shall
not be deemed any kind of warranty or representation by Landlord, including,
without limitation, any warranty or representation as to the suitability,
competence or financial strength of the New Provider. Without
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limitation of Landlord's right to withhold consent in its sole and absolute
discretion, Landlord may refuse to give its approval unless all of the following
conditions are satisfied: (i) Landlord shall incur no expense whatsoever with
respect to any aspect of the New Provider's provision of its services,
including, without limitation, the costs of installation, materials and
services; (ii) prior to commencement of any work in or about the Building by the
New Provider, the New Provider shall supply Landlord with such written
indemnities, insurance, financial statements, and such other items as Landlord,
in its sole and absolute discretion, determines to be necessary to protect its
financial interests and the interests of the Building related to the proposed
activities of the New Provider; (iii) the New Provider agrees in writing to
abide by such rules and regulations, building and other codes, job site rules
and such other requirements as are determined by Landlord, in its sole and
absolute discretion, to be necessary to protect the interest of the Building,
the tenants in the Building and Landlord; (iv) Landlord determines, in its sole
and absolute discretion, that there is sufficient space in the Building for the
placement of all of the New Provider's equipment and materials; (v) Landlord
receives from the New Provider such compensation as is determined by Landlord,
in its sole and absolute discretion, to compensate it for space used in the
Building for the storage and maintenance of the New Provider's equipment, for
the fair market value of the New Provider's access to the Building, and any
costs which may be expected to be incurred by Landlord; and (vi) all of the
foregoing matters are documented in a written agreement between Landlord and the
New Provider, the form and content of which are satisfactory to Landlord in its
sole and absolute discretion.
(f) Notwithstanding any provision of the preceding subparagraph to
the contrary, the refusal of Landlord the grant its approval to any New Provider
shall not be deemed a default or breach by Landlord of its obligation under this
Lease, and in no event shall Tenant have the right to terminate this Lease or
claim entitlement to rent abatement for Landlord's refusal to grant Tenant's
request for approval of a New Provider. The provisions ofthis Paragraph 27 may
be enforced solely by Tenant and Landlord and are not for the benefit of any
other party. Specifically, but without limitation, no telephone or
telecommunications provider is intended to be, nor shall be deemed, a third
party beneficiary of this Lease.
(g) Tenant shall not utilize any wireless communications equipment
(other than usual and customary cellular telephones), including antenna and
satellite receiver dishes, within the Premises or the Building, without
Landlord' prior written consent. Such consent shall be granted only in the sole
and absolute discretion of Landlord, and shall be conditioned in such a manner,
in Landlord's sole and absolute discretion, so as to protect Landlord's
financial interests and the interests of the Building, and the other tenants
therein.
28. NOTICES. All notices to be given under this Lease shall be in
writing and delivered personally or deposited in the United States mail,
certified or registered mail with return receipt requested, postage prepaid or
by reputable overnight courier, addressed as follows:
If to Landlord: Amerimar Realty Management Co.-Colorado
000 - 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
with a copy to: Denver-Stellar Associates Limited Partnership
000 Xxxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
or to such other person or such other address designed by notice sent by
Landlord or Tenant.
If to Tenant: XXXXXX.XXX, L.L.C.
0000 00xx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
and after occupancy of the Premises by Tenant, at the Premises, or to such other
address as is designated by Tenant in a notice to Landlord; it being agreed that
ifTenant shall vacate the Premises, notices to Tenant thereafter shall
nevertheless be properly given if addressed to Tenant at the Premises unless and
until another address is designated by Tenant by notice to Landlord.
Notice by mail shall be deemed to have been given seventy-two (72)
hours after being
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deposited in the United States mail or the following Business Day after deposit
with a reputable overnight carrier.
29. TIME IS OF THE ESSENCE. Time is of the essence hereof.
IN WITNESS WHEREOF, Landlord and Tenant, intending to be legally bound
hereby, have executed this Agreement of lease as of the day and year first above
written.
LANDLORD:
DENVER-STELLAR ASSOCIATES LIMITED PARTNERSHIP,
a Delaware limited partnership
By: ARC Denver Associates, L.L.C., a Delaware
limited liability company, its general partner
By: ARC Denver, Inc., a Delaware corporation,
its manager
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------
Xxxxx X. Xxxxxxxx, President
TENANT:
Xxxxxx.xxx, L.L.C., an Ohio limited liability company
By /s/ Xxxxxxx Xxxxxx
-------------------------------------------------
Title Vice President and Chief Financial Officer
---------------------------------------------
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ADDENDUM
30. ADDITIONAL SPACE. Provided that this Lease shall be in full force
and effect and Tenant shall not be in default hereunder, Tenant shall have the
ability, exercisable by written notice to Landlord ("Tenant's Notice") given at
the respective time indicated below for the respective Suite, to lease
additional space located in Suites 940 and 950 as depicted on attached EXHIBIT
A-1 (also referred to herein collectively or singularly as"Additional Space").
Tenant acknowledges that it is required to take all of the respective Suite and
may not elect to lease only a portion thereof. If Tenant timely notifies
Landlord, the respective Suite shall be added to the Premises on the later of:
(i) the respective Occupancy Date set forth below, or (ii) the date the Tenant
Improvements have been substantially complete as determined solely by Landlord's
architect in charge of the completing the Tenant Improvements. If the delivery
date of a Suite is delayed beyond the Occupancy Date set forth below, Tenant's
obligations with respect to the respective Suite shall likewise be delayed to
the date the Suite is delivered substantially ready for occupancy.
Notwithstanding the foregoing, whether the delivery date is delayed or not, the
expiration of Tenant's right to occupy the Suite or Suites shall expire with the
term of the Lease. If Tenant leases Additional Space pursuant to the provisions
of this Paragraph, it shall be on all of the terms, covenants and conditions of
this Lease, except (a) the annual Base Rent for the Additional Space shall be at
the Base Rent rate set forth below for the respective Suite (b) Tenant's
Proportionate share shall be increased by the number of rentable square feet
contained in the then applicable Additional Space (c) Tenant shall be entitled
to lease one additional parking space for each 1000 rentable square feet within
the Applicable Space at the prevailing monthly rental rates for such parking
spaces, and (d) Tenant shall accept the Suite in its current "as is" condition,
subject to Landlord's provision of an allowance for Tenant Improvements up to,
but not exceeding, an amount equal to the square footage of the respective Suite
being added, multiplied times the amount set forth below as Tenant Improvements.
Landlord's contractor will perform the Tenant Improvements subject to and in
accordance with the provisions for Completion of Improvements in the Lease.
Further, the parties shall enter into an amendment to this Lease, evidencing the
addition of each Additional Space to the Premises hereunder. If Tenant fails to
timely give notice, Tenant's rights to the respective Suite shall terminate,
however, Tenant's rights to the remaining Suite shall be available in accordance
with the time period set forth below.
Rentable Occupancy Base Rent SF Tenant
Suite Sq.Ft. Notice Date Date Annual Rate Improvements
940 4588 02-15-00 07-01-00 $21.50 $9.50
950 6300 04-01-00 09-01-00 $21.50 $9.50
31. EXPANSION SPACE. Provided that this Lease shall be in full force
and effect and Tenant shall not be in default hereunder and further conditioned
on Tenant having added Suite 940 to the Premises in accordance with Paragraph 30
of this Addendum, Tenant shall have the ability, exercisable by written notice
to Landlord ("Tenant's Notice") given at the respective time indicated below for
the respective Suite, to lease additional space located in Suites 300, 900 and
450, as depicted on attached EXHIBITS X-0, X-0 and A-4 respectively (also
referred to herein collectively or singularly as "Expansion Space"). Tenant
acknowledges that it is required to take all of the respective Suite and may not
elect to lease only a portion thereof. If Tenant timely notifies Landlord, the
respective Suite shall be added to the Premises on the later of: (i) the
respective Occupancy Date set forth below, or (ii) the date the Tenant
Improvements have been substantially complete as determined solely by Landlord's
architect in charge of the completing the Tenant Improvements. If the delivery
date of a Suite is delayed beyond the Occupancy Date set forth below, Tenant's
obligations with respect to the respective Suite shall likewise be delayed to
the date the Suite is delivered substantially ready for occupancy.
Notwithstanding the foregoing, whether the delivery date is delayed or not, the
expiration of Tenant's right to occupy the Suite or Suites shall expire with the
term of the Lease. If Tenant leases Expansion Space pursuant to the provisions
of this Paragraph, it shall be on all of the terms, covenants and conditions of
this Lease, except (a) the annual Base Rent for the Expansion Space shall be at
the Base Rent rate set forth below for the respective Suite (b) Tenant's
Proportionate Share shall be increased by the number of rentable square feet
contained in the then applicable Expansion Space, (c) Tenant shall be entitled
to lease one additional parking space for each 1000
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rentable square feet within the Applicable Space at the prevailing monthly
rental rates for such parking spaces, and (d) Tenant shall accept the Suite in
its current " as is" condition, subject to Landlord's provision of an allowance
for Tenant Improvements up to, but not exceeding, an amount equal to the square
footage of the respective Suite being added, multiplied times the amount set
forth below as Tenant Improvements. Landlord's contractor will perform the
Tenant Improvements subject to and in accordance with the provisions for
Completion of Improvements in the Lease. Further, the parties shall enter into
an amendment to this Lease, evidencing the addition of each Expansion Space to
the Premises hereunder. If Tenant fails to timely give notice, Tenant's rights
to the respective Suite shall terminate, however, Tenant's rights to the
remaining Suite(s) shall be available in accordance with the time period set
forth below.
Rentable Occupancy Base Rent SF Tenant
Suite Sq.Ft. Notice Date Date Annual Rate Improvements
300 10000 07-01-00 04-01-01 $22.50 $8.50
900 10606 02-01-01 11-01-01 $22.50 $7.50
450 15840 02-01-01 11-01-01 $22.50 $7.50
32. TENANT'S RENEWAL OPTION. Tenant shall have the option to renew
("Renewal Option") the term of the Lease for one (1) additional term of three
(3) years ("Renewal Term"), commencing on the date following the expiration of
the Term, on the condition that Tenant is not in default under this Lease at the
time Tenant gives notice of exercise of its renewal option or at the time of
commencement of the Renewal Term. Such renewal shall be on all of the terms,
covenants and conditions of this Lease, except: (i) Tenant shall not have any
right to further renewal beyond such additional three-year term; and (ii) the
annual Base Rent for the Premises for the Renewal Term shall be at the
prevailing market rates for office space in the Building comparable to the
Premises at the time the Renewal Term begins, but in no event shall the Base
Rent payable for the Renewal Term be less than $19.50 per rentable square foot
of the Premises. Tenant's Renewal Option shall be exercised only by Tenant
giving Landlord written notice of Tenant's election to renew at least nine (9)
months prior to the expiration date, time being of the essence with respect to
such notice. As of the date the Renewal Term begins, this Lease shall be deemed
modified in the manner set forth above, without the necessity of any further
agreement or document; provided, however, that either party to this Lease shall,
upon request of the other party, execute, acknowledge, and deliver an instrument
evidencing such renewal and modification of this Lease.
33. ATHLETIC CLUB MEMBERSHIPS. During the original Term of this Lease,
Landlord agrees to cause the operator of the Athletic Club of Denver Place
("Athletic Club") located adjacent to the Building, to provide (i) one month's
fee trial use of the Athletic Club for Tenant's employees who join the Athletic
Club prior to June 30, 2000, and (ii) employees of the Tenant who join prior to
June 30, 2000 to receive the corporate membership rate which is Fifty-Two and
50/100 Dollars ($52.50) for the period from the date they join though December
31, 2000. After June 30, 2000, any joining Tenant employee shall be charged the
prevailing monthly rate charged by the Athletic Club. Tenant's employees shall
be subject to all rules and regulations adopted from time to time by the
operator of the Athletic Club and shall be responsible for the payment of any
applicable initiation fees imposed by the Athletic Club from time to time.
Landlord's obligation under this Paragraph 34 shall xxxxx during any time that
the Athletic Club is not being operated during the Term.
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34. AFTER HOURS AC. Notwithstanding anything contained in the Lease to
the contrary, Landlord agrees to provide up to 195 hours of air conditioning to
the Premises beyond the hours specified in subparagraph 7(a) of the Lease during
the calendar months May 15th through September 15th each year during the initial
Term, at no additional cost to Tenant. Landlord shall install two ten ton air
conditioning units ("Units") to cool the Premises or utilizing the Building's
existing air conditioning system, to provide said after hours air conditioning.
Tenant acknowledges commencing with the 196th hour, Tenant shall be subject to
the provisions of subparagraph 7(b)(i) of the Lease.
35. CONTINGENCY. This Lease is expressly conditioned on Landlord
entering into an agreement with the current occupant of the Premises for
termination of its lease which currently encumbers the Premises. If Landlord
fails for any reason to enter into such an agreement by October 22, 1999, this
Lease, upon no by Tenant or Landlord, shall be deemed null and void and shall be
of no force and effect.
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