OFFICE LEASE
BETWEEN
PRENTICE POINT LIMITED PARTNERSHIP,
A DELAWARE LIMITED PARTNERSHIP
(AS LANDLORD)
AND
THE ENTERPRISE SYSTEMS GROUP, INC.,
A TEXAS CORPORATION
(AS TENANT)
Section Page
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1. PRINCIPAL TERMS . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
2. GENERAL COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . .2
3. TERM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
4. RENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
5. COMPLETION OR REMODELING OF THE PREMISES. . . . . . . . . . . . . . . .3
6. OPERATING EXPENSES/REAL ESTATE TAXES. . . . . . . . . . . . . . . . . .3
7. SERVICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
8. QUIET ENJOYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
9. DEPOSIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
10. CHARACTER OF OCCUPANCY. . . . . . . . . . . . . . . . . . . . . . . . .7
11. MAINTENANCE, ALTERATIONS AND REENTRY BY LANDLORD. . . . . . . . . . . .7
12. ALTERATIONS AND REPAIRS BY TENANT . . . . . . . . . . . . . . . . . . .8
13. MECHANICS' LIENS. . . . . . . . . . . . . . . . . . . . . . . . . . . .8
14. SUBLETTING AND ASSIGNMENT . . . . . . . . . . . . . . . . . . . . . . .9
15. DAMAGE TO PROPERTY. . . . . . . . . . . . . . . . . . . . . . . . . . 10
16. INDEMNITY TO LANDLORD . . . . . . . . . . . . . . . . . . . . . . . . 10
17. SURRENDER AND NOTICE. . . . . . . . . . . . . . . . . . . . . . . . . 10
18. INSURANCE, CASUALTY, AND RESTORATION OF PREMISES. . . . . . . . . . . 10
19. CONDEMNATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
20. DEFAULT BY TENANT . . . . . . . . . . . . . . . . . . . . . . . . . . 11
21. DEFAULT BY LANDLORD . . . . . . . . . . . . . . . . . . . . . . . . . 13
22. SUBORDINATION AND ATTORNMENT. . . . . . . . . . . . . . . . . . . . . 13
23. REMOVAL OF TENANT'S PROPERTY. . . . . . . . . . . . . . . . . . . . . 13
24. HOLDING OVER: TENANCY MONTH-TO-MONTH. . . . . . . . . . . . . . . . . 14
25. PAYMENTS AFTER TERMINATION. . . . . . . . . . . . . . . . . . . . . . 14
26. STATEMENT OF PERFORMANCE. . . . . . . . . . . . . . . . . . . . . . . 14
27. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
28. AUTHORITIES FOR ACTION AND NOTICE . . . . . . . . . . . . . . . . . . 15
29. PARKING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
30. SUBSTITUTE PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . 16
31. BROKERAGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
32. LEGAL FEES; PREPARATION OF LEASE. . . . . . . . . . . . . . . . . . . 16
33. COUNTERPARTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
34. ADDENDUM/EXHIBITS . . . . . . . . . . . . . . . . . . . . . . . . . . 16
35. RIGHT OF OFFER. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
LEASE AGREEMENT
THIS LEASE, dated as of January 20, 1999, is by and between PRENTICE
POINT LIMITED PARTNERSHIP, a Delaware limited partnership ("Landlord") and
THE ENTERPRISE SYSTEMS GROUP, INC., a Texas corporation ("Tenant").
WITNESSETH:
1. PRINCIPAL TERMS. Capitalized terms, first appearing in
quotations in this Section, elsewhere in the Lease or any Exhibits, are
definitions of such terms as used in the Lease and Exhibits and shall have
the defined meaning whenever used.
1.1 "BUILDING": Prentice Point, 0000 XXX Xxxxxxxxx,
Xxxxxxxxx, XX 00000
1.2 "PREMISES": Xxxxx #0000
1.3 "INITIAL TERM": 5 years, 3 months
"Commencement Date": January 1, 1999
"Expiration Date": March 31, 2004
1.4 "MINIMUM RENT": PERIOD MONTHLY
Months 1-9 $15,598.00
Months 10-12 $23,397.00
Months 13-24 $31,196.00
Months 25-36 $31,845.92
Months 37-63 $32,495.83
1.5 OPERATING EXPENSES/ Base Operating Expenses:
calendar year 1999
REAL ESTATE TAXES: Base Real Estate Taxes:
calendar year 1999
Pro Rata Share: 7.772%
1.6 "DEPOSIT": $50,000.00
1.7 "PERMITTED USE": General Business Offices
1.8 "GUARANTOR": None
1.9 PARKING: 60 spaces ("Tenant's Maximum")
1.10 LANDLORD'S NOTICE ADDRESS: Prentice Point Limited
Partnership
c/x Xxxxxxxx Real Estate
Associates
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Legal Coordinator
copy to: Isaacson, Rosenbaum, Xxxxx &
Levy, P.C.
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxxx, Esq.
and copy to: Xx. Xxxxxxx X. Xxxxx
Xxxxxxxx Real Estate Associates
000 Xxxx Xxxxx Xxxxxxxxx, Xxxxx
000
Xxxx Xxxxx, XX 00000
and copy to: Prentice Point Limited
Partnership
0000 Xxxxx XXX Xxxxxxxxx
Xxxxxxxxx, XX 00000
Attn: Building Manager
1.11 LANDLORD'S TAX I.D.: 00-0000000
1.12 TENANT'S NOTICE ADDRESS:
Precommencement Address: 0000 X. Xxxxxx Xx., Xxxxx 000
Xxxxxx, XX 00000
Post Commencement Address: 0000 XXX Xxxxxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
1.13 TENANT'S TAX I.D.: [PLEASE PROVIDE]
--------------------------------
1.14 LANDLORD'S BROKER: Venture Group Real Estate, LLC
1.15 COOPERATING BROKER: Xxxxxx & Company
1.16 ATTACHMENTS: [check if applicable]
__x__ Exhibit A - Diagram of Premises
__x__ Exhibit B - Real Property
_____ Exhibit C - Premises Completion
_____ Exhibit D - Commencement Certificate
__x__ Exhibit E - Rules and Regulations
2. GENERAL COVENANTS. Tenant covenants and agrees to pay Rent and
perform the obligations hereafter set forth and in consideration therefor
Landlord leases to Tenant the Premises as depicted on the plat attached as
Exhibit A, together with a non-exclusive right, subject to the provisions
hereof, to use plazas, common areas, or other areas on the real property
legally described on Exhibit B (the "Real Property") designated by Landlord
for the exclusive or non-exclusive use of the tenants of the Building
("Common Areas"). The Building, Real Property, Common Areas, and
appurtenances are hereinafter collectively sometimes called the "Building
Complex."
3. TERM. The Initial Term of the Lease commences at 12:01 a.m. on
the Commencement Date and terminates at 12:00 midnight on the Expiration Date
(the Initial Term together with any extensions thereof is herein referred to
as the "Term.").
4. RENT. Subject to the provisions below, commencing on the
Commencement Date and on the first day of each month thereafter, Tenant shall
pay Minimum Rent in the amount stated in Section 1.4, in advance without
notice (all amounts, including Minimum Rent, to be paid by Tenant pursuant to
this Lease as the context requires are sometimes referred to collectively as
"Rent(s)"). Rents shall be paid without set off, abatement, or diminution, at
the management office in the Building, or at such other place as Landlord
from time to time designates in writing. Notwithstanding the foregoing,
Tenant shall have the right to occupy the Premises without payment of Minimum
Rent for a period commencing January 1, 1999 and ending March 31, 1999 (the
"Deferred Rent Period"). It is agreed that the Rent payable under this Lease
is allocable to, and shall be accrued by the parties during, their fiscal
periods in which the same is actually paid. Landlord and Tenant agree that
no portion of the Minimum Rent paid by Tenant during the Initial Term
occurring after the expiration of the Deferred Rent Period will be allocated
by Landlord or Tenant to such Deferred Rent Period, nor is such Rent intended
by the parties to be allocable to the Deferred Rent Period. If for any
reason at any time during the Term Tenant is in default hereunder, which
default is not cured within any applicable cure periods,
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Tenant shall owe to Landlord, in addition to all other amounts otherwise set
forth herein, all amounts of Minimum Rent deferred pursuant to this Section.
Such amounts shall be immediately due and payable upon the occurrence of any
such default. Tenant shall have no obligation to pay such amounts if no
Event of Default has occurred prior to the expiration of the Term.
5. COMPLETION OR REMODELING OF THE PREMISES.
5.1 Landlord has no obligation for the completion or
remodeling of the Premises, and Tenant accepts the Premises in its "as is"
condition on the Commencement Date as set forth in Section 1.3. Landlord, at
its sole cost and expense, agrees to shampoo all of the carpets in the
Premises and replace any missing ceiling tiles in the Premises.
5.2 Taking possession of the Premises by Tenant is conclusive
evidence that the Premises are in the condition agreed between Landlord and
Tenant and acknowledgment by Tenant of satisfactory completion of any work
which Landlord has agreed to perform.
6. OPERATING EXPENSES/REAL ESTATE TAXES. Tenant shall pay
Operating Expense Rent and Tax Rent as additional Rent hereunder in
accordance with the following:
6.1 DEFINITIONS. The additional terms below have the
following meanings in this Lease:
(1) "Base Operating Expenses" means an amount equal to
the Operating Expenses for the calendar year set forth in Section 1.5, as
determined by Landlord in accordance with this Section. Tenant acknowledges
Landlord has not made any representations or warranties that the Base
Operating Expenses will equal any specified amounts (any estimates provided
by Landlord are non-binding estimates only).
(2) "Base Real Estate Taxes" means an amount equal to
the Real Estate Taxes for the calendar year set forth in Section 1.5, as
determined by Landlord in accordance with this Section. Tenant acknowledges
Landlord has not made any representations or warranties that the Base Real
Estate Taxes will equal any specified amounts (any estimates provided by
Landlord are non-binding estimates only).
(3) "Landlord's Accountants" means that individual or
firm employed by Landlord from time to time to keep the books and records for
the Building Complex, and/or to prepare the federal and state income tax
returns for Landlord with respect to the Building Complex, which books and
records shall be certified to by a representative of Landlord. All
determinations made hereunder shall be made by Landlord's Accountants unless
otherwise stated.
(4) "Tenant's Pro Rata Share" means the percentage set
forth in Section 1.5.
(5) "Operating Expense Year" means each calendar year
during the Term, except that the first Operating Expense Year begins on the
Commencement Date and ends on December 31 of such year and the last Operating
Expense Year begins on January 1 of the calendar year in which this Lease
expires or is terminated and ends on the date of such expiration or
termination. If an Operating Expense Year is less than twelve (12) months,
Operating Expenses for such year shall be prorated.
(6) "Operating Expenses" means all operating expenses
of any kind or nature which are in Landlord's reasonable judgment necessary,
appropriate, or customarily incurred in connection with the operation and
maintenance of the Building Complex. Operating Expenses include, but are not
limited to, the following:
(a) Costs of supplies, including costs of
relamping and replacing ballasts in all Building standard tenant
lighting;
(b) Costs of energy for the Building
Complex, including costs of propane, butane, natural gas, steam,
electricity, solar energy and fuel oils, coal or any other energy
sources;
(c) Costs of water and sanitary and storm
drainage services;
(d) Costs of janitorial and security services;
(e) Costs of general maintenance, repairs, and
replacements including costs under HVAC and other mechanical maintenance
contracts; and repairs and replacements of equipment used in maintenance
and repair work;
(f) Costs of maintenance, repair and replacement
of landscaping;
(g) Insurance premiums for the Building Complex,
including all-risk or multi-peril coverage, together with loss of rent
endorsement; the part of any claim paid under the deductible portion of
any insurance
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policy carried by Landlord; public liability insurance; and any other
insurance carried by Landlord on any component parts of the Building
Complex;
(h) All labor costs, including wages, costs of
worker's compensation insurance, payroll taxes, fringe benefits,
including pension, profit sharing and health, and legal fees and other
costs incurred in resolving any labor dispute;
(i) Professional building management fees, costs
and expenses, including costs of office space and storage space required
by management for performance of its services;
(j) Legal, accounting, inspection, and other
consulting fees (including fees for consultants for services designed to
produce a reduction in Operating Expenses or improve the operation,
maintenance or state of repair of the Building Complex);
(k) Costs of capital improvements and structural
repairs and replacements to the Building Complex to conform to changes
subsequent to the date of issuance of the shell and core certificate of
occupancy for the Building in any Applicable Laws (herein "Required
Capital Improvements"); and the costs of any capital improvements and
structural repairs and replacements designed primarily to reduce
Operating Expenses (herein "Cost Savings Improvements"). Expenditures
for Required Capital Improvements and Cost Savings Improvements will be
amortized at a market rate of interest over the useful life of such
capital improvement (as determined by Landlord's Accountants); however,
the amortized amount of any Cost Savings Improvement will be limited in
any year to the resulting reduction in Operating Expenses; and
(l) Costs incurred for Landlord's Accountants
including costs of any experts and consultants engaged to assist in
making the computations;
"Operating Expenses" do NOT include:
(i) Costs of work, including painting and
decorating, which Landlord performs for any tenant other than work of a
kind and scope which Landlord is obligated to furnish to all tenants
whose leases contain a rental adjustment provision similar to this one;
(ii) Costs of repairs or other work
occasioned by fire, windstorm or other insured casualty to the extent of
insurance proceeds received;
(iii) Leasing commissions, advertising
expenses, and other costs incurred in leasing space in the Building;
(iv) Costs of repairs or rebuilding
necessitated by condemnation;
(v) Interest on borrowed money or debt
amortization, except as specifically set forth above; or
(vi) Depreciation on the Building Complex.
(7) "Real Estate Taxes" means all real and personal property
taxes and assessments levied against the Building Complex by any governmental
or quasi-governmental authority, including taxes, assessments, surcharges, or
service or other fees of a nature not presently in affect which are hereafter
levied on the Building Complex as a result of the use, ownership or operation
of the Building Complex or for any other reason, whether in lieu of or in
addition to, any current real estate taxes and assessments. However, any
taxes which are levied on the rent of the Building Complex will be determined
as if the Building Complex were Landlord's only real property. In no event
do taxes and assessments include any federal or state income taxes levied or
assessed on Landlord. Expenses for tax consultants to contest taxes or
assessments are also included as Real Estate Taxes. Real Estate Taxes also
include special assessments, license taxes, business license fees, business
license taxes, commercial rental taxes, levies, charges, penalties or taxes,
imposed by any authority against the Premises, Building Complex or any legal
or equitable interest of Landlord. Special assessments are deemed payable in
such number of installments permitted by law, whether or not actually so
paid, and include any applicable interest on such installments. Real Estate
Taxes (other than special assessments) are computed on an accrual basis based
on the year in which they are levied, even though not paid until the
following Operating Expense Year;
(8) "Tax Year" means each calendar year during the Term,
except that the first Tax Year begins on the Commencement Date and ends on
December 31 of such year and the last Tax Year begins on January 1 of the
calendar year in which this Lease expires or is terminated and ends on the
date of such expiration or termination. If a Tax Year is less than twelve
(12) months, Real Estate Taxes for such year shall be prorated.
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6.2 COMPUTATION AND PAYMENT OF OPERATING EXPENSE RENT.
6.2.1 If the actual Operating Expenses payable by
Landlord for any Operating Expense Year exceed the Base Operating Expenses
("Excess Operating Expenses"), Tenant shall pay its Pro Rata Share of the
Excess Operating Expenses ("Operating Expense Rent") to Landlord as provided
herein. Following the end of each Operating Expense Year, Landlord shall
submit a statement ("Operating Expense Statement") to Tenant setting forth
the following:
(1) The total Operating Expense Rent payable by Tenant
for the just completed Operating Expense Year;
(2) The total amount Tenant has paid as Estimated
Operating Expense Rent (hereafter defined) during
the just completed Operating Expense Year;
(3) The difference, if any, between the total Operating
Expense Rent set forth in item (1) above and the
Estimated Operating Expense Rent previously paid as
set forth in item (2) above ("Operating Expense Rent
Shortfall");
(4) Tenant's Pro Rata Share of Landlord's estimate of
Excess Operating Expenses for the new Operating
Expense Year ("Estimated Operating Expense Rent")
determined in accordance with this Paragraph; and
(5) The amount of the Retroactive Adjustment, if any, in
accordance with the following.
6.2.2 Commencing on the Commencement Date, Tenant shall
pay, at the same time as monthly Minimum Rent is paid, 1/12 of the Estimated
Operating Expense Rent. To the extent an Operating Expense Statement
reflects an Operating Expense Rent Shortfall Tenant will pay such shortfall
within 30 days after receipt of the Operating Expense Statement (or receive a
credit for the difference against the next due Rent, as the case may be).
Until Tenant receives an Operating Expense Statement, Tenant shall continue
to pay the Estimated Operating Expense Rent for the prior Operating Expense
Year. However, Tenant is responsible for payment (or is eligible for a
credit, as the case may be) of any difference between the old Estimated
Operating Expense Rent paid for any period of the new Operating Expense Year
and the new Estimated Operating Expense Rent payable for that same period
("Retroactive Adjustment"). Tenant shall commence payment of the new
Estimated Operating Expense Rent beginning on the first day of the month
following the month in which Tenant receives the Operating Expense Statement,
at which time the Tenant shall also pay Landlord or deduct from the next-due
Rent, as the case may be, the Retroactive Adjustment. If, during any
Operating Expense Year, there is a change in the information on which
Tenant's Estimated Operating Expense Rent is based so that the prior estimate
is no longer accurate, Landlord may revise the estimate and there shall be a
corresponding adjustment to the Estimated Operating Expense Rent for the
balance of the Operating Expense Year following notice to Tenant.
6.3 COMPUTATION AND PAYMENT OF TAX RENT.
6.3.1 If the actual Real Estate Taxes payable by
Landlord for any Tax Year exceed the Base Real Estate Taxes ("Excess Taxes"),
Tenant shall pay its Pro Rata Share of the Excess Taxes ("Tax Rent") to
Landlord as provided herein. Following the end of each Tax Year, Landlord
shall submit a statement ("Tax Statement") to Tenant setting forth the
following:
(1) The total Tax Rent payable by Tenant for the
just completed Tax Year;
(2) The amount Tenant has paid as Estimated Tax
Rent (hereafter defined) during the just
completed Tax Year;
(3) The difference, if any, between the total Tax
Rent set forth in item (1) above and the
Estimated Tax Rent previously paid as set
forth in item (2) above ("Tax Rent
Shortfall");
(4) Tenant's Pro Rata Share of Landlord's
estimate of Excess Taxes for the new Tax Year
("Estimated Tax Rent") determined in
accordance with this Paragraph; and
(5) The amount of the Retroactive Adjustment, if
any, in accordance with the following.
6.3.2 Commencing with the first month of the second Tax
Year, Tenant shall pay, at the same time as monthly Minimum Rent is paid,
1/12 of the Estimated Tax Rent. To the extent a Tax Statement reflects a Tax
Rent Shortfall, Tenant will pay such shortfall within 30 days after receipt
of the Tax Statement (or receive a credit for the difference against the next
due Rent, as the case may be). Until Tenant receives a Tax Statement, Tenant
shall continue to pay the Estimated Tax Rent for the prior Tax Year.
However, Tenant is responsible for payment (or is eligible for a credit, as
the case may be) of any difference between the old Estimated Tax Rent paid
for any period of the new Tax Year and the new Estimated Tax Rent payable
for that same period ("Retroactive Adjustment"). Tenant shall commence
payment of the new Estimated Tax Rent beginning on the first day of the month
following the month in which Tenant receives the Tax Statement, at which time
the Tenant shall also Pay Landlord or deduct from the next-due Rent, as the
case may be, the Retroactive Adjustment. If, during any Tax Year, there is a
change in the information on which Tenant's Estimated Tax Rent is based so
that the prior estimate is no longer accurate, Landlord may revise the
estimate and there shall be a corresponding adjustment to the Estimated Tax
Rent for the balance of the Tax Year following notice to Tenant.
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6.4 MISCELLANEOUS. If any lease entered into by Landlord with
any tenant in the Building is on a so-called "net" basis, or provides for a
separate basis of computation for any Operating Expenses or Real Estate Taxes
with respect to its leased premises, Landlord's Accountants may modify the
computation of Base Operating Expenses, Base Real Estate Taxes, Tenant's Pro
Rata Share, Operating Expenses and Real Estate Taxes for a particular
Operating Expense Year and/or Tax Year (as applicable) to eliminate or modify
any Operating Expenses and/or Real Estate Taxes which are paid for in whole
or in part by such tenant. If the Building is not fully occupied during any
particular Operating Expense Year or Tax Year, Landlord's Accountants may
adjust those Operating Expenses and Real Estate Taxes which are affected by
occupancy for the particular Operating Expense Year or Tax Year to reflect
100% occupancy. Furthermore, in making any computations contemplated hereby,
Landlord's Accountants may make such other modifications to the computations
as are required in their judgment to achieve the intention of the parties
hereto. In no event will any decrease in Rent pursuant to any provision
hereof result in a reduction of Rent below the Minimum Rent. Delay by
Landlord in submitting any statement for any Operating Expense Year or Tax
Year does not affect the provisions of this Section or constitute a waiver of
Landlord's rights for such Operating Expense Year, Tax Year, or any
subsequent Operating Expense Years or Tax Years.
6.5 DISPUTE. If Tenant disputes an adjustment submitted by
Landlord or a proposed increase or decrease in an Estimated Operating Expense
Rent or Estimated Tax Rent, Tenant shall give Landlord notice of such dispute
within 30 days after Tenant's receipt of the adjustment. If Tenant does not
give Landlord timely notice, Tenant waives its right to dispute the
particular adjustment. If Tenant timely objects, Tenant may engage, at its
expense, its own certified public accountants ("Tenant's Accountants") to
verify the accuracy of the statement complained of or the reasonableness of
the estimated increase or decrease. If Tenant's Accountants determine that
an error has been made, Landlord's Accountants and Tenant's Accountants shall
endeavor to agree upon the matter, failing which such matter shall be
submitted to an independent certified public accountant selected by Landlord,
with Tenant's reasonable approval, for a determination which will be
conclusive and binding upon Landlord and Tenant. Tenant agrees that all
information obtained or generated in connection with such audit shall be kept
confidential and may not be disclosed to any other tenants or third parties.
Notwithstanding the pendency of any dispute, Tenant shall continue to pay
Landlord the amount of the Estimated Operating Expense Rent or Estimated Tax
Rent being disputed or adjustment determined by Landlord's Accountants until
the adjustment has been determined to be incorrect. If it is determined that
any portion of the Operating Expenses and/or Real Estate Taxes were not
properly chargeable to Tenant, then Landlord shall promptly credit or refund
the appropriate sum to Tenant.
7. SERVICES.
7.1 Subject to the provisions below, Landlord agrees, without
charge, in accordance with standards determined by Landlord from time to time
for the Building: (1) to furnish running water at those points of supply for
general use of tenants of the Building; (2) during Ordinary Business Hours to
furnish to interior Common Areas heated or cooled air (as applicable),
electrical current, janitorial services, and maintenance; (3) during Ordinary
Business Hours to furnish heated or cooled air to the Premises for standard
office use provided the recommendations of Landlord's engineer regarding
occupancy and use of the Premises are complied with by Tenant; (4) to
furnish, subject to availability and capacity of building systems, unfiltered
treated chilled water for use in Tenant's packaged HVAC systems provided that
such systems are approved by Landlord, including strainers, pumping systems
and controls; (5) to provide, during Ordinary Business Hours, the general use
of passenger elevators for ingress and egress to and from the Premises (at
least one such elevator shall be available at all times except in the case of
emergencies or repair); (6) to provide janitorial services for the Premises
to the extent of the Initial Tenant Finish (including window washing of the
outside of exterior windows); and (7) to cause electric current to be
supplied to the Premises for Tenant's Standard Electrical Usage (items (1)
through (7) are collectively called "Services"). "Tenant's Standard
Electrical Usage" means weekly electrical consumption in an amount determined
by (i) multiplying 3.5 xxxxx/square foot by 59 hours and (ii) multiplying the
product thereof by the number of rentable square feet in the Premises.
"Ordinary Business Hours" means 7:00 a.m. to 6:00 p.m. Monday through Friday
and 9:00 a.m. to 12:00 p.m. on Saturdays, Legal Holidays excepted. "Legal
Holidays" mean New Year's Day, Xxxxxx Xxxxxx Xxxx Day, Presidents' Day,
Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Christmas Day,
and such other national holidays hereafter established by the United States
Government.
7.2 "Excess Usage" means any usage of electricity (1) during
other than Ordinary Business Hours; (2) in an amount in excess of Tenant's
Standard Electrical Usage; or (3) for Special Equipment or for standard HVAC
services during other than Ordinary Business Hours. "Special Equipment"
means (a) any equipment consuming more than 0.5 kilowatts at rated capacity,
(b) any equipment requiring a voltage other than 120 volts, single phase, or
(c) equipment that requires the use of self-contained HVAC units. If Tenant
desires Excess Usage, Landlord will use reasonable efforts to supply the
same. Tenant shall reimburse Landlord for all Landlord's costs of providing
services for Excess Usage, including costs for materials, additional wear and
tear on equipment, utilities, and labor (including fringe and overhead
costs). Computation of such costs will be made by Landlord's engineer, based
on his engineering survey of Tenant's Excess Usage. Tenant shall also
reimburse Landlord for all costs of supplementing the Building HVAC System
and/or extending or supplementing any electrical service, as Landlord
determines is necessary, as a result of Tenant's Excess Usage. Prior to
installation or use of Special Equipment or operation of the Premises for
extended hours on an ongoing basis, Tenant shall notify Landlord of such
intended installation or use and obtain Landlord's consent. Not less than 48
6
hours' prior notice shall be given Landlord of Tenant's request for such
services. Tenant may request that Landlord install at Tenant's cost a check
meter and/or flow meter to determine the cost of Tenant's Excess Usage.
Tenant shall also pay the cost of replacing light bulbs and/or tubes and
ballast used in all lighting in the Premises other than that provided by
Landlord to all tenants of the Building.
7.3 If Tenant requires janitorial services other than those
included as standard Services, Tenant shall separately pay for such services
monthly upon xxxxxxxx by Landlord, or Tenant shall, at Landlord's option,
separately contract for such services with the same company used by Landlord
to furnish janitorial services to the Building.
7.4 Landlord may discontinue, reduce, or curtail Services
(either temporarily or permanently) when necessary due to accident, repairs,
alterations, strikes, lockouts, Applicable Laws, or any other happening
beyond Landlord's reasonable control. Landlord is not liable for damages to
Tenant or any other party as a result of any interruption, reduction, or
discontinuance of Services (either temporary or permanent) nor shall the
occurrence of any such event be construed as an eviction of Tenant, cause or
permit an abatement, reduction or setoff of Rent, or operate to release
Tenant from Tenant's obligations.
7.5 Tenant shall promptly notify Landlord of any accidents or
defects in the Building of which Tenant becomes aware, including defects in
pipes, electric wiring, and HVAC equipment, and of any condition which may
cause injury or damage to the Building or any person or property therein.
7.6 Landlord understands that Tenant's contemplated operation
in the Premises may require Tenant to install a natural gas backup generator
on the roof of the Building (the size, type, shielding and location of the
generator is subject to Landlord's prior written approval). As such, Landlord
generally consents to the installation of the natural gas backup generator,
subject to its right to review and approve the plans for consistency with the
base Building systems, impact on other tenants, impact on the Building
Complex, compliance with laws and all other items as set forth in Article 12.
Tenant will be solely responsible for all costs, fees and expenses in
connection with the installation, use and maintenance of the generator. Upon
installation of the generator, Tenant (or its authorized maintenance
personnel) shall have reasonable access, during Ordinary Business Hours, to
the generator on the roof for purposes of customary maintenance and repairs.
8. QUIET ENJOYMENT. So long as an Event of Default has not
occurred, Tenant is entitled to the quiet enjoyment and peaceful possession
of the Premises subject to the provisions of this Lease.
9. DEPOSIT. Tenant has deposited and will keep on deposit at all
times during the Term with Landlord the Deposit as security for the payment
and performance of Tenant's obligations under this Lease. If, at any time,
Tenant is in default, Landlord has the right to use the Deposit, or so much
thereof as necessary, in payment of Rent, in reimbursement of any expense
incurred by Landlord, and in payment of any damages incurred by Landlord by
reason of such default. In such event, Tenant shall on demand of Landlord
forthwith remit to Landlord a sufficient amount in cash to restore the
Deposit to the original amount. If the entire Deposit has not been utilized,
the remaining amount will be refunded to Tenant or to whoever is then the
holder of Tenant's interest in this Lease, without interest, within 60 days
after full performance of this Lease by Tenant. Landlord may commingle the
Deposit with other funds of Landlord. Landlord may deliver the Deposit to
any purchaser of Landlord's interest in the Premises and Landlord shall be
discharged from further liability therefor. Tenant agrees that if a
Mortgagee succeeds to Landlord's interest in the Premises by reason of
foreclosure or deed in lieu of foreclosure, Tenant has no claim against the
Mortgagee for the Deposit or any portion thereof unless such Mortgagee has
actually received the same from Landlord. If claims of Landlord exceed the
Deposit, Tenant shall remain liable for the balance.
10. CHARACTER OF OCCUPANCY. Tenant shall occupy the Premises for
the Permitted Use and for no other purpose, and use it in a careful, safe,
and proper manner and pay on demand for any damage to the Premises caused by
misuse or abuse by Tenant, Tenant's agents or employees, or any other person
entering upon the Premises under express or implied invitation of Tenant
(collectively, "Tenant's Agents"). Tenant, at Tenant's expense, shall comply
with all applicable federal, state, city, quasi-governmental and utility
provider laws, codes, rules, and regulations now or hereafter in effect
("Applicable Laws") which impose any duty upon Landlord or Tenant with
respect to the occupation or alteration of the Premises. Tenant shall not
commit or permit waste or any nuisance on or in the Premises. Tenant agrees
not to store, keep, use, sell, dispose of or offer for sale in, upon or from
the Premises any article or substance prohibited by any insurance policy
covering the Building Complex nor shall Tenant keep, store, produce or
dispose of on, in or from the Premises or the Building Complex any substance
which may be deemed an infectious waste or hazardous substance under any
Applicable Laws, except customary office and cleaning supplies.
11. MAINTENANCE, ALTERATIONS AND REENTRY BY LANDLORD.
11.1 Landlord will (i) make repairs and replacements to HVAC,
mechanical, life safety and electrical systems in the Premises (to the extent
such systems are Building standard) deemed necessary by Landlord for normal
operations of the Building Complex; and (ii) provide upkeep, maintenance, and
repairs to all Common Areas. Except as provided
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in this Section or otherwise expressly required in this Lease, Landlord is
not required to make improvements or repairs to the Premises during the Term.
11.2 Landlord or Landlord's agents may at any time enter the
Premises for examination and inspection, if Landlord elects, to perform any
obligations of Tenant which Tenant fails to perform, to perform such
cleaning, maintenance, janitorial services, repairs, replacements, additions,
or alterations as Landlord deems necessary for the safety, improvement or
preservation of the Premises or other portions of the Building Complex, or as
required by Applicable Laws. Landlord or Landlord's agents may also show the
Premises to prospective tenants, purchasers and Mortgagees. Any such reentry
does not constitute an eviction or entitle Tenant to abatement of Rent.
Landlord may make such alterations or changes in other portions of the
Building Complex as Landlord desires so long as such alterations and changes
do not unreasonably interfere with Tenant's occupancy of the Premises.
Landlord may use the Common Areas and one or more street entrances to the
Building Complex as may be necessary in Landlord's judgment to complete such
work.
12. ALTERATIONS AND REPAIRS BY TENANT.
12.1 Tenant shall not make any alterations to the Premises
during the Term, including installation of equipment or machinery which
requires modifications to existing electrical outlets or increases Tenant's
usage of electricity beyond Tenant's Standard Electrical Usage (collectively
"Alterations") without in each instance first obtaining the written consent
of Landlord, which shall not be unreasonably withheld. Landlord's consent or
approval of the plans, specifications and working drawings for any
Alterations shall not constitute any warranty or representation by Landlord
(and shall not impose any liability on Landlord) as to their completeness,
design sufficiency, or compliance with Applicable Laws. Tenant shall at its
cost: pay all engineering and design costs incurred by Landlord as to all
Alterations, obtain all governmental permits and approvals required, and
cause all Alterations to be completed in compliance with Applicable Laws and
requirements of Landlord's insurance. All such work relating to Alterations
shall be performed in a good and workmanlike manner, using new materials and
equipment at least equal in quality to the Initial Tenant Finish. All
Alterations, repair and maintenance work performed by Tenant shall be done at
Tenant's expense by Landlord's employees or, with Landlord's prior consent
and subject to any conditions imposed by Landlord, by other persons requested
by Tenant; however, if such work is not performed by Landlord's employees,
Tenant shall pay Landlord a supervisory fee of 2.5% of the total construction
cost upon receipt of an invoice. If Landlord authorizes such persons to
perform work, Tenant shall deliver to Landlord prior to commencement
certificates issued by insurance companies qualified to do business in the
State of Colorado, evidencing that worker's compensation, public liability
insurance, and property damage insurance (in amounts, with companies and on
forms satisfactory to Landlord) are in force and maintained by all
contractors and subcontractors engaged to perform such work. All liability
policies shall name Landlord, Building Manager, and Mortgagee as additional
insureds. Each certificate shall provide that the insurance may not be
cancelled or modified without 10 days' prior written notice to Landlord and
Mortgagee. Landlord also has the right to post notices in the Premises in
locations designated by Landlord stating that Landlord is not responsible for
payment for such work and containing such other information as Landlord deems
necessary. All such work shall be performed in a manner which does not
unreasonably interfere with Landlord or other tenants of the Building, or
impose additional expense upon Landlord in the operation of the Building
Complex.
12.2 Tenant shall keep the Premises in as good order,
condition, and repair and in an orderly state, as on the Commencement Date,
loss by fire or other casualty or ordinary wear excepted.
12.3 All Alterations, including partitions, paneling,
carpeting, drapes or other window coverings, and light fixtures (but not
including movable office furniture not attached to the Building), are deemed
a part of the real estate and the property of Landlord and remain upon and be
surrendered with the Premises at the end of the Term, whether by lapse of
time or otherwise, unless Landlord notifies Tenant no later than 15 days
prior to the end of the Term that it elects to have Tenant remove all or part
of such Alterations, and in such event, Tenant shall at Tenant's expense
promptly remove the Alterations specified and restore the Premises to its
prior condition, reasonable wear and tear excepted. Notwithstanding the
foregoing, in the event that Landlord, at the time it consents to the
installation of a specific Alteration, agrees that a specific Alteration may
be removed by Tenant at the end of the Initial Term without a return of the
Premises to its prior condition, then the provisions of this Section 12.3
shall not apply with respect to that specific Alteration.
13. MECHANICS' LIENS. Tenant shall pay for all work done on the
Premises by Tenant or at its request (other than the Initial Tenant Finish)
of a character which may result in liens on Landlord's or Tenant's interest
and Tenant will keep the Premises free of all mechanics' liens, and other
liens on account of such work. Tenant indemnifies, defends, and saves
Landlord harmless from all liability, loss, damage, or expenses, including
attorneys' fees, on account of any claims of laborers, materialmen or others
for work performed or for materials or supplies furnished to Tenant or
persons claiming under Tenant. If any lien is recorded against the Premises
or Building or any suit affecting title thereto is commenced as a result of
such work, or supplying of materials, Tenant shall cause such lien to be
removed of record within 5 days after notice from Landlord. If Tenant desires
to contest any claim, Tenant must furnish Landlord adequate security of at
least 150% of the amount of the claim, plus estimated costs and interest and,
if a final judgment establishing the validity of any lien is entered, Tenant
shall immediately pay and satisfy the same. If Tenant fails to proceed as
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aforesaid, Landlord may pay such amount and any costs, and the amount paid,
together with reasonable attorneys' fees incurred, shall be immediately due
Landlord upon notice.
14. SUBLETTING AND ASSIGNMENT.
14.1 Tenant shall not sublet any part of the Premises nor
assign or otherwise transfer this Lease or any interest herein (sometimes
referred to as "Transfer," and the subtenant or assignee may be referred to
as "Transferee") without the consent of Landlord first being obtained, which
consent will not be unreasonably withheld provided that: (1) Tenant complies
with the provisions of Section 14.4; (2) Landlord declines to exercise its
rights under Section 14.3; (3) the Transferee is engaged in a business and
the portion of the Premises will be used in a manner which is in keeping with
the then standards of the Building and does not conflict with any exclusive
use rights granted to any other tenant of the Building Complex; (4) the
Transferee has reasonable financial worth in light of the responsibilities
involved; (5) Tenant is not in default at the time it makes its request; (6)
the Transferee is not a governmental or quasi-governmental agency; (7) the
Transferee is not a tenant or currently negotiating a lease with Landlord in
any Building owned by Landlord in the Denver metropolitan area (including the
Building Complex); and (8) the rent to be paid by the Transferee is not less
than 80% of the Rent paid by Tenant for such space and is not less than 80%
of the rental rate then being offered by Landlord for similar space in the
Building. Transfer includes a sale by Tenant of substantially all of its
assets or stock if Tenant is a publicly traded corporation, a merger of
Tenant with another corporation, the transfer of 25% or more of the stock in
a corporate tenant whose stock is not publicly traded, or transfer of 25% or
more of the beneficial ownership interests in a partnership or limited
liability company tenant.
14.2 Following any Transfer in accordance with this Section
14, Landlord may, after default by Tenant, collect rent from the Transferee
or occupant and apply the net amount collected to the Rent, but no Transfer
or collection will be deemed an acceptance of the Transferee or occupant as
Tenant or release Tenant from its obligations. Consent to a Transfer shall
not relieve Tenant from obtaining Landlord's consent to any other Transfer.
Notwithstanding Landlord's consent to a Transfer, Tenant shall continue to be
liable for its obligations. If Tenant collects any rent or other amounts from
a Transferee in excess of the Rent for any monthly period, Tenant shall pay
Landlord the excess monthly, as and when received.
14.3 Notwithstanding the above, if Tenant requests Landlord's
consent to sublet 25% or more of the Premises, Landlord may refuse to grant
such consent in its sole discretion and terminate this Lease as to the
portion of the Premises with respect to which such consent was requested;
provided, however, if Landlord does not consent and elects to terminate the
Lease as to such portion, Tenant may within 15 days after notice from
Landlord to this effect withdraw Tenant's request for consent. If such
termination occurs, it shall be effective on the date designated in a notice
from Landlord and shall not be more than 30 days following such notice.
14.4 Tenant must notify Landlord at least 60 days prior to the
desired date of the Transfer ("Tenant's Notice"). Tenant's Notice shall
describe the portion of the Premises to be transferred and the terms and
conditions. Landlord has, without obligation, 30 days following receipt of
Tenant's Notice to sublet the space on Tenant's behalf or to exercise its
rights pursuant to Section 14.3 if Tenant's Notice discloses that 25% or more
of the Premises is involved. If the space covered by Tenant's Notice is
subleased by Landlord, rent and other sums due from the subtenant will be
paid to Tenant directly and Landlord has no responsibility for the
performance by such subtenant of its obligations under its sublease with
Tenant. If Landlord is unwilling or unable to locate a subtenant (and, if
applicable, declines to exercise its rights under Section 14.3), Landlord
will notify Tenant not later than 60 days after receipt of Tenant's Notice
and Tenant shall be free to sublet the specified portion of the Premises to
any third party on terms substantially identical to those described in
Tenant's Notice, subject to Landlord's consent as set forth above. If Tenant
does not sublet such portion of the Premises within 60 days following
Landlord's notice to Tenant, Tenant must reoffer the Premises to Landlord in
accordance with the provisions hereof prior to subleasing to a third party.
14.5 All documents utilized by Tenant to evidence a Transfer
are subject to reasonable approval by Landlord. Tenant shall pay Landlord's
reasonable expenses, including reasonable attorneys' fees, of determining
whether to consent and in reviewing and approving the documents. Tenant shall
provide Landlord with such information as Landlord reasonably requests
regarding a proposed subtenant, including financial information.
14.6 If a trustee or debtor in possession in bankruptcy is
entitled to assume control over Tenant's rights under this Lease and assigns
such rights to any third party notwithstanding the provisions hereof, the
rent to be paid by such party shall be increased to the current Minimum Rent
(if greater than that being paid for the Premises) which Landlord charges for
comparable space in the Building as of the date of such third party's
occupancy. If Landlord is entitled under the Bankruptcy Code to "Adequate
Assurance" of future performance of this Lease, the parties agree that such
term includes the following:
(1) Any assignee must demonstrate to Landlord's
reasonable satisfaction a net worth (as defined in accordance with generally
accepted accounting principles consistently applied) at least as large as the
net worth of Tenant on the Commencement Date increased by 7%, compounded
annually, for each year thereafter through the date of the proposed
assignment. Tenant's financial condition was a material inducement to
Landlord in executing this Lease.
9
(2) The assignee must assume and agree to be bound by
the provisions of this Lease.
15. DAMAGE TO PROPERTY. Tenant agrees Landlord is not liable for
any injury or damage, either proximate or remote, occurring through or
caused by fire, water, steam, or any repairs, alterations, injury, accident,
or any other cause to the Premises, to any furniture, fixtures, Tenant
improvements, or other personal property of Tenant kept or stored in the
Premises, or in other parts of the Building Complex, whether by reason of the
negligence or default of Landlord, other occupants, any other person, or
otherwise; and the keeping or storing of all property of Tenant in the
Premises and Building Complex is at the sole risk of Tenant.
16. INDEMNITY TO LANDLORD.
16.1 Tenant agrees to indemnify, defend, and hold Landlord and
Building Manager harmless from all liability, costs, or expenses, including
attorneys' fees, on account of damage to the person or property of any third
party, including any other tenant in the Building Complex, to the extent
caused by the negligence or breach of this Lease by the Tenant or Tenant's
Agents. Landlord agrees to indemnify, defend and hold Tenant harmless from
all liability, costs or expenses, including attorneys' fees, on account of
damage to the person or property of any third party (excluding Tenant's
Agents), including any other tenant in the Building Complex, to the extent
caused by the negligence or breach of this Lease by Landlord, subject to the
provisions of Section 18.6
16.2 Tenant shall maintain throughout the Term a commercial
general liability policy, including protection against death, personal
injury and property damage, issued by an insurance company qualified to do
business in the State of Colorado, with a single limit of not less than
$1,000,000.00. Such policy shall name Landlord, Building Manager, and
Mortgagee as additional insureds, be primary to any other similar insurance
of such additional insureds, and provide that it may not be cancelled or
modified without at least 20 days' prior notice to Landlord and Mortgagee.
The minimum limits of such insurance do not limit the liability of Tenant
hereunder. Prior to occupancy of the Premises, and prior to expiration of
the then-current policy, Tenant shall deliver certificates evidencing that
insurance required under this Lease is in effect.
17. SURRENDER AND NOTICE. Upon the expiration or other termination
of this Lease, Tenant shall immediately quit and surrender to Landlord the
Premises broom clean, in good order and condition, ordinary wear and tear and
loss by fire or other casualty excepted, and Tenant shall remove all of its
movable furniture and other effects, all telephone cable and related
equipment in the Building installed for Tenant, and such Alterations, as
Landlord requires. If Tenant fails to timely vacate the Premises as
required, Tenant is responsible to Landlord for all resulting costs and
damages of Landlord, including any amounts paid to third parties who are
delayed in occupying the Premises.
18. INSURANCE, CASUALTY, AND RESTORATION OF PREMISES.
18.1 Landlord shall maintain casualty insurance for the
Building Complex, the shell and core of the Building and the Premises in such
amounts, from such companies, and on such terms and conditions, including
insurance for loss of Rent as Landlord deems appropriate, from time to time.
18.2 Tenant shall maintain throughout the Term "all risk" or
"multi-peril" insurance for the full replacement cost of Tenant's property
and betterments in the Premises, including tenant finish in excess of the
Initial Tenant Finish.
18.3 If the Building is damaged by fire or other casualty
which renders the Premises wholly untenantable or the damage is so extensive
that an architect selected by Landlord certifies in writing to Landlord and
Tenant within 60 days of said casualty that the Premises cannot, with the
exercise of reasonable diligence, be made fit for occupancy within 180
working days from the happening thereof, then, at the option of Landlord or
Tenant exercised in writing to the other within 30 days of such
determination, this Lease shall terminate as of the occurrence of such
damage. In the event of termination, Tenant shall pay Rent duly apportioned
up to the time of such casualty and forthwith surrender the Premises and all
interest. If Tenant fails to do so, Landlord may reenter and take possession
of the Premises and remove Tenant. If, however, the damage is such that the
architect certifies that the Premises can be made tenantable within such
180-day period or neither Landlord or Tenant elects to terminate the Lease
despite the extent of damage, then the provisions below apply.
18.4 If the Premises are damaged by fire or other casualty
that does not render it wholly untenantable or require a repair period in
excess of 180 days, Landlord shall with reasonable promptness except as
hereafter provided repair the Premises to the extent of the Initial Tenant
Finish.
18.5 If the Building is damaged (though the Premises may not
be affected, or if affected, can be repaired within 180 days) and within 60
days after the damage Landlord decides not to reconstruct or rebuild the
Building, then, notwithstanding anything contained herein, upon notice to
that effect from Landlord within said 60 days, Tenant shall pay the Rent
apportioned to such date, this Lease shall terminate from the date of such
notice, and both parties discharged from further obligations except as
otherwise expressly provided.
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18.6 Landlord and Tenant waive all rights of recovery against
the other and its respective officers, partners, members, agents,
representatives, and employees for loss or damage to its real and personal
property kept in the Building Complex, or for loss of business arising out of
or related the use and occupancy of the Premises which is capable of being
insured against under all risk or multi-peril insurance, including coverage
for damage due to water leakage. Tenant also waives all such rights of
recovery against Building Manager. Each party shall, upon obtaining the
property damage insurance required by this Lease, notify the insurance
carrier that the foregoing waiver is contained in this Lease and use
reasonable efforts to obtain an appropriate waiver of subrogation provision
in the policies.
18.7 Rent shall xxxxx during any period of repair and
restoration to the extent of any recovery by Landlord under its loss of rent
insurance related to the Premises in the same proportion that the part of the
Premises rendered untenantable bears to the whole.
19. CONDEMNATION. If the Premises or substantially all of it or any
portion of the Building Complex which renders the Premises untenantable is
taken by right of eminent domain, or by condemnation (which includes a
conveyance in lieu of a taking), this Lease, at the option of either Landlord
or Tenant exercised by notice to the other within 30 days after the taking,
shall terminate and Rent shall be apportioned as of the date of the taking.
Tenant shall forthwith surrender the Premises and all interest in this Lease,
and, if Tenant fails to do so, Landlord may reenter and take possession of
the Premises. If less than all the Premises is taken, Landlord shall
promptly repair the Premises as nearly as possible to its condition
immediately prior to the taking, unless Landlord elects not to rebuild under
Section 18.5. Landlord shall receive the entire award or consideration for
the taking.
20. DEFAULT BY TENANT.
20.1 Each of the following events is an "Event of Default":
(1) Any failure by Tenant to pay Rent on the due date
unless such failure is cured within 3 days after written notice that such
amount is due but unpaid;
(2) Tenant abandons the Premises without payment of
rent;
(3) This Lease or Tenant's interest is transferred
whether voluntarily or by operation of law except as permitted in Section 14;
(4) This Lease or any part of the Premises is taken by
process of law and is not released within 15 days after a levy;
(5) Commencement by Tenant of a proceeding under any
provision of federal or state law relating to insolvency, bankruptcy, or
reorganization ("Bankruptcy Proceeding");
(6) Commencement of a Bankruptcy Proceeding against
Tenant, unless dismissed within 60 days after commencement;
(7) The insolvency of Tenant or execution by Tenant of
an assignment for the benefit of creditors; the convening by Tenant of a
meeting of its creditors or any significant class thereof for purposes of
effecting a moratorium upon or extension or composition of its debts; or the
failure of Tenant generally to pay its debts as they mature;
(8) The admission in writing by Tenant (or any general
partner of Tenant if Tenant is a partnership), that it is unable to pay its
debts as they mature or it is generally not paying its debts as they mature;
(9) Tenant fails to perform any of its other
obligations and nonperformance continues for 30 days after notice by Landlord
or, if such performance cannot be reasonably had within such 30 day period,
Tenant does not in good faith commence performance within such 30 day period
and diligently proceed to completion; provided, however, Tenant's right to
cure shall not exceed the period provided by Applicable Law.
20.2 REMEDIES OF LANDLORD. If an Event of Default occurs,
Landlord may then or at any time thereafter, either:
(1) (a) Without further notice except as required by
Applicable Laws, reenter and repossess the Premises or any part and expel
Tenant and those claiming through or under Tenant and remove the effects of
both without being deemed guilty of any manner of trespass and without
prejudice to any remedies for arrears of Rent or preceding breach of this
Lease. Should Landlord reenter or take possession pursuant to legal
proceedings or any notice provided for by Applicable Law, Landlord may, from
time to time, without terminating this Lease, relet the Premises or any part,
either alone or in conjunction with other portions of the Building Complex,
in Landlord's or Tenant's name but for the account of Tenant, for such
periods (which may be greater or less than the period which would otherwise
have constituted the balance of the Term) and on such conditions and upon
such other terms (which may include concessions of free rent and alteration
and repair of the Premises) as Landlord, in its sole discretion, determines
and Landlord may collect the
11
rents therefor. Landlord is not in any way responsible or liable for failure
to relet the Premises, or any part thereof, or for any failure to collect any
rent due upon such reletting. No such reentry or repossession or notice from
Landlord shall be construed as an election by Landlord to terminate this
Lease unless specific notice of such intention is given Tenant. Landlord
reserves the right following any reentry and/or reletting to exercise its
right to terminate this Lease by giving Tenant notice, in which event this
Lease will terminate as specified in the notice.
(b) If Landlord takes possession of the
Premises without terminating this Lease, Tenant shall pay Landlord (i) the
Rent which would be payable if repossession had not occurred, less (ii) the
net proceeds, if any, of any reletting of the Premises after deducting all of
Landlord's expenses incurred in connection with such reletting, including all
repossession costs, brokerage commissions, attorneys' fees, expenses of
employees, alteration, and repair costs (collectively, "Reletting Expenses").
If, in connection with any reletting, the new lease term extends beyond the
Term or the premises covered thereby include other premises not part of the
Premises, a fair apportionment of the rent received from such reletting and
the Reletting Expenses, will be made in determining the net proceeds received
from the reletting. In determining such net proceeds, rent concessions will
also be apportioned over the term of the new lease. Tenant shall pay such
amounts to Landlord monthly on the days on which the Rent would have been
payable if possession had not been retaken, and Landlord is entitled to
receive the same from Tenant on each such day; or
(2) Give Tenant notice of termination of this Lease on
the date specified and, on such date, Tenant's right to possession of the
Premises shall cease and the Lease will terminate except as to Tenant's
liability as hereafter provided as if the expiration of the term fixed in
such notice were the end of the Term. If this Lease terminates pursuant to
this Section, Tenant remains liable to Landlord for damages in an amount
equal to the Rent which would have been owing by Tenant for the balance of
the Term had this Lease not terminated, less the net proceeds, if any, of
reletting of the Premises by Landlord subsequent to termination after
deducting Reletting Expenses. Landlord may collect such damages from Tenant
monthly on the days on which the Rent would have been payable if this Lease
had not terminated and Landlord shall be entitled to receive the same from
Tenant on each such day. Alternatively, if this Lease is terminated, Landlord
at its option may recover forthwith against Tenant as damages for loss of the
bargain and not as a penalty an amount equal to the worth at the time of
termination of the excess, if any, of the Rent reserved in this Lease for the
balance of the Term over the then Reasonable Rental Value of the Premises for
the same period plus all Reletting Expenses. "Reasonable Rental Value" is
the amount of rent Landlord can obtain for the remaining balance of the Term.
20.3 RECAPTURE OF RENT CONCESSIONS AND TENANT IMPROVEMENT
ALLOWANCES. In the Event of Default by Tenant, in addition to all other
rights and remedies, Landlord shall be entitled to receive from Tenant all
sums, the payment of which may previously have been waived or abated by
Landlord, or which may have been paid by Landlord pursuant to any agreement
to grant Tenant a rental abatement or other monetary inducement or
concession, including but not limited to any tenant improvement or finish
allowance or moving allowance, together with interest thereon from the date
or dates such amounts were paid by Landlord or would have been due from
Tenant but for the abatement, at the rate of eighteen percent (18%) per
annum, until paid; it being understood and agreed that such concession or
abatement was made on the condition and basis that Tenant fully perform all
obligations and covenants under the Lease for the entire term.
20.4 CUMULATIVE REMEDIES. Suits to recover Rent and damages
may be brought by Landlord, from time to time, and nothing herein requires
Landlord to await the date the Term would expire had there been no Event of
Default or termination, as the case may be. Each right and remedy provided
for in this Lease is cumulative and non-exclusive and in addition to every
other right or remedy now or hereafter existing at law or equity, including
suits for injunctive relief and specific performance. The exercise or
beginning of the exercise by Landlord of one or more rights or remedies shall
not preclude the simultaneous or later exercise by Landlord of other rights
or remedies. All costs incurred by Landlord to collect any Rent and damages
or to enforce this Lease are also recoverable from Tenant. If any suit is
brought because of an alleged breach of this Lease, the prevailing party is
also entitled to recover from the other party all reasonable attorneys' fees
and costs incurred in connection therewith.
20.5 NO WAIVER. No failure by Landlord to insist upon strict
performance of any provision or to exercise any right or remedy upon a
breach thereof, and no acceptance of full or partial Rent during the
continuance of any breach constitutes a waiver of any such breach or such
provision, except by written instrument executed by Landlord. No waiver shall
affect or alter this Lease but each provision hereof continues in effect with
respect to any other then existing or subsequent breach thereof.
20.6 BANKRUPTCY. Nothing contained in this Lease limits
Landlord's right to obtain as liquidated damages in any bankruptcy or similar
proceeding the maximum amount allowed by law at the time such damages are to
be proven, whether such amount is greater, equal to, or less than the amounts
recoverable, either as damages or Rent, referred to in any of the preceding
provisions of this Section. Notwithstanding anything in this Section to the
contrary, any proceeding described in Section 20.1(5), (6), (7) and (8) is an
Event of Default only when such proceeding is brought by or against the then
holder of the leasehold estate under this Lease.
20.7 LATE PAYMENT CHARGE. Any Rent not paid within 3 days
after the due date shall thereafter bear interest at 5 percentage points
above the Prime Rate or the highest rate permitted by law, whichever is
lower, until paid. Further, if such Rent is not paid within 3 days after the
due date, Tenant agrees Landlord will incur additional administrative
12
expenses, the amount of which will be difficult to determine; Tenant
therefore shall also pay Landlord a late charge for each late payment of 5%
of such payment. Any amounts paid by Landlord to cure a default of Tenant
which Landlord has the right but not the obligation to do, shall, if not
repaid by Tenant within 3 days of demand by Landlord, thereafter bear
interest at 5 percentage points above the Prime Rate until paid. "Prime
Rate" means that rate announced by Xxxxx Fargo Bank, N.A., or its successor,
as its prime rate on the date closest to the date interest commences.
20.8 WAIVER OF JURY TRIAL. Tenant and Landlord waive any
right to a trial by jury in suits arising out of or concerning the provisions
of this Lease.
21. DEFAULT BY LANDLORD. In the event of any alleged default on the
part of Landlord, Tenant shall give notice to Landlord and afford Landlord a
reasonable opportunity to cure such default. Such notice shall be
ineffective unless a copy is simultaneously also delivered in the manner
required in this Lease to any holder of a mortgage and/or deed of trust
affecting all or any portion of the Building Complex (collectively,
"Mortgagee"), provided that prior to such notice Tenant has been notified (by
way of notice of Assignment of Rents and Leases, or otherwise), of the
address of a Mortgagee. If Landlord fails to cure such default within the
time provided, then Mortgagee shall have an additional 30 days following a
second notice from Tenant or, if such default cannot be cured within that
time, such additional time as may be necessary provided within such 30 days,
Mortgagee commences and diligently pursues a cure (including commencement of
foreclosure proceedings if necessary to effect such cure). Tenant's sole
remedy will be equitable relief or actual damages but in no event is Landlord
or any Mortgagee responsible for consequential damages or lost profit
incurred by Tenant as a result of any default by Landlord.
22. SUBORDINATION AND ATTORNMENT.
22.1 This Lease will be subordinate to any mortgage, deed of
trust and related documents now or hereafter placed upon the Building Complex
(including all advances made thereunder), and to all amendments, renewals,
replacements, or restatements thereof (collectively, "Mortgage"), unless
Landlord or Mortgagee advises Tenant that it will not be subordinate. Tenant
agrees that no documentation other than this Lease is required to evidence
such subordination.
22.2 If any Mortgagee elects to have this Lease superior to
the lien of its Mortgage and gives notice to Tenant, this Lease will be
deemed prior to such Mortgage whether this Lease is dated prior or subsequent
to the date of such Mortgage or the date of recording thereof.
22.3 In confirmation of subordination or superior position, as
the case may be, Tenant will execute such documents as may be required by
Mortgagee and, if it fails to do so within 10 days after demand, Tenant
hereby irrevocably appoints Landlord as Tenant's attorney-in-fact in Tenant's
name, place, and stead to do so.
22.4 Tenant hereby attorns to all successor owners of the
Building, whether such ownership is acquired by sale, foreclosure of a
Mortgage, or otherwise.
22.5 If it becomes necessary to foreclose the Mortgage,
Mortgagee shall neither terminate the Lease nor join Tenant in summary or
foreclosure proceedings so long as Tenant is not in default under any of the
terms, covenants, or conditions of the Lease. If Mortgagee succeeds to the
interest of Landlord under the Lease, Mortgagee shall not be: (a) liable for
any act or omission of any prior landlord (including Landlord); (b) liable
for return of any security deposit unless such deposit has been delivered to
the Mortgagee by Landlord or is in an escrow fund available to Mortgagee; (c)
subject to any offsets or defenses that Tenant might have against any prior
landlord (including Landlord); (d) bound by any Rent or additional Rent that
Tenant might have paid for more than the current month to any prior landlord
(including Landlord); (e) personally liable under the Lease, Mortgagee's
liability thereunder being limited to its interest in the Real Property; or
(f) bound by any notice of termination given by Landlord to Tenant without
Mortgagee's prior written consent thereto.
22.6 Tenant acknowledges that a current Mortgagee requires
that Rent payable to Landlord under this Lease be paid directly by Tenant to
Mortgagee upon a default by Landlord under the Mortgage. After receipt of
notice from Mortgagee to Tenant, at the address set forth above (or at such
other address of which Mortgagee has been notified in writing), Tenant shall
pay to Mortgagee all monies due or to become due to Landlord under the Lease.
Tenant shall have no responsibility to ascertain whether such demand by
Mortgagee is permitted under the Mortgage, or to inquire into the existence
of a default. Landlord hereby waives any right, claim, or demand it may now
or hereafter have against Tenant by reason of such payment to Mortgagee, and
any such payment shall discharge the obligations of Tenant to make such
payment to Landlord.
23. REMOVAL OF TENANT'S PROPERTY.
23.1 All movable personal property of Tenant not removed from
the Premises upon vacation, abandonment, or termination of this Lease shall
be conclusively deemed abandoned and may be sold, or otherwise disposed of
by
13
Landlord without notice to Tenant and without obligation to account; Tenant
shall pay Landlord's expenses in connection with such disposition.
23.2 Subject to any purchase money security interests granted
by Tenant, Tenant conveys to Landlord all of Tenant's property at any time
situated on the Premises (and all replacements) as security for the
performance of its obligations; Tenant shall execute such documents as
Landlord requires to evidence and perfect Landlord's security interest, and
for this purpose this Lease is considered a security agreement covering such
personal property. Upon the occurrence of an Event of Default, Landlord may
exercise all rights of a secured party under the Colorado Uniform Commercial
Code. Such security interest is prior and superior to any other security
interest except a purchase money security interest. Tenant's property shall
not be removed from the Premises without Landlord's consent unless such
property is replaced with an item of equal or greater value.
24. HOLDING OVER; TENANCY MONTH-TO-MONTH. If, after the expiration
or termination of this Lease, Tenant remains in possession of the Premises
and continues to pay rent without a written agreement as to such holding
over, even though Landlord accepts such rent, such possession is a tenancy
from month-to-month, subject to all provisions hereof but at a monthly rent
equivalent to 150% of the monthly Rent paid by Tenant immediately prior to
such expiration or termination. Rent shall continue to be payable in advance
on the first day of each calendar month. Such tenancy may be terminated by
either party upon 10 days' notice prior to the end of any monthly period.
Nothing contained herein obligates Landlord to accept rent tendered after the
expiration of the Term or relieves Tenant of its liability under Section 17.
25. PAYMENTS AFTER TERMINATION. No payments by Tenant after
expiration or termination of this Lease or after any notice (other than a
demand for payment of money) by Landlord to Tenant reinstates, continues,
extends the Term, or affects any notice given to Tenant prior to such
payments. After notice, commencement of a suit, or final judgment granting
Landlord possession of the Premises, Landlord may collect any amounts due or
otherwise exercise Landlord's remedies without waiving any notice or
affecting any suit or judgment.
26. STATEMENT OF PERFORMANCE. Tenant agrees at any time upon not
less than 10 days' notice to execute and deliver to Landlord a written
statement certifying that this Lease is unmodified and in full force and
effect (or, if there have been modifications, that the same is in full force
and effect as modified stating the modifications); that there have been no
defaults by Landlord or Tenant (or, if there have been defaults, setting
forth the nature thereof); the date to which Rent has been paid in advance
and such other information as Landlord requests. Such statement may be
relied upon by a prospective purchaser of Landlord's interest or Mortgagee.
Tenant's failure to timely deliver such statement is conclusive upon Tenant
that: (i) this Lease is in full force and effect without modification except
as may be represented by Landlord; (ii) there are no uncured defaults in
Landlord's performance; and (iii) not more than 1 month's Rent has been paid
in advance. Upon request, Tenant will furnish Landlord an appropriate
resolution confirming that the party signing the statement is authorized to
do so.
27. MISCELLANEOUS.
27.1 TRANSFER BY LANDLORD. The term "Landlord" means so far as
obligations of Landlord are concerned, only the owner of the Building at the
time in question and, if any transfer of the title occurs, Landlord herein
named (and in the case of any subsequent transfers, the then grantor) is
automatically released from and after the date of such transfer of all
liability as respects performance of any obligations of Landlord thereafter
to be performed. Any funds in Landlord's possession at the time of transfer
in which Tenant has an interest will be turned over to the grantee and any
amount then due Tenant under this Lease will be paid to Tenant.
27.2 NO MERGER. The termination or mutual cancellation of this
Lease will not work a merger, and such termination or cancellation will at
the option of Landlord either terminate all subleases or operate as an
automatic assignment to Landlord of such subleases.
27.3 COMMON AREA USE. Landlord may use any of the Common
Areas for the purposes of completing or making repairs or alterations in any
portion of the Building Complex.
27.4 INDEPENDENT COVENANTS. This Lease is to be construed as
though the covenants between Landlord and Tenant are independent and not
dependent and Tenant is not entitled to any setoff of the Rent against
Landlord if Landlord fails to perform its obligations; provided, however, the
foregoing does not impair Tenant's right to commence a separate suit against
Landlord for any default by Landlord so long as Tenant complies with Section
21.
27.5 VALIDITY OF PROVISIONS. If any provision is invalid
under present or future laws, then it is agreed that the remainder of this
Lease is not affected and that in lieu of each provision that is invalid,
there will be added as part of this Lease a provision as similar to such
invalid provision as may be possible and is valid and enforceable.
27.6 CAPTIONS. The caption of each Section is added for
convenience only and has no effect in the construction of any provision of
this Lease.
14
27.7 CONSTRUCTION. The parties waive any rule of construction
that ambiguities are to be resolved against the drafting party. Any words
following the words "include," "including," "such as," "for example," or
similar words or phrases shall be illustrative only and are not intended to
be exclusive, whether or not language of non-limitation is used.
27.8 APPLICABILITY. Except as otherwise provided, the
provisions of this Lease are applicable to and binding upon Landlord's and
Tenant's respective heirs, successors and assigns. Such provisions are also
considered to be covenants running with the land to the fullest extent
permitted by law.
27.9 AUTHORITY. Tenant and the party executing this Lease on
behalf of Tenant represent to Landlord that such party is authorized to do so
by requisite action of Tenant and agree, upon request, to deliver Landlord a
resolution, similar document, or opinion of counsel to that effect.
27.10 SEVERABILITY. If there is more than one party which is
the Tenant, the obligations imposed upon Tenant are joint and several.
27.11 ACCEPTANCE OF KEYS, RENT OR SURRENDER. No act of
Landlord or its representatives during the Term, including any agreement to
accept a surrender of the Premises or amend this Lease, is binding on
Landlord unless such act is by a partner, member or officer of Landlord, as
the case may be, or other party designated in writing by Landlord as
authorized to act. The delivery of keys to Landlord or its representatives
will not operate as a termination of this Lease or a surrender of the
Premises. No payment by Tenant of a lesser amount than the entire Rent owing
is other than on account of such Rent nor is any endorsement or statement on
any check or letter accompanying payment an accord and satisfaction.
Landlord may accept payment without prejudice to Landlord's right to recover
the balance or pursue any other remedy available to Landlord.
27.12 BUILDING NAME AND SIZE. Landlord may as it relates to
the Building and Building Complex: change the name, increase the size by
adding additional real property, construct other buildings or improvements,
change the location and/or character, or make alterations or additions. If
additional buildings are constructed or the size is increased, Landlord and
Tenant shall execute an amendment which incorporates any necessary
modifications to Tenant's Pro Rata Share. Tenant may not use the Building's
name for any purpose other than as part of its business address.
27.13 DIMINUTION OF VIEW. Tenant agrees that no diminution of
light, air, or view from the Building entitles Tenant to any reduction of
Rent under this Lease, results in any liability of Landlord, or in any way
affects Tenant's obligations.
27.14 LIMITATION OF LIABILITY. Notwithstanding anything to the
contrary contained in this Lease, Landlord's liability is limited to
Landlord's interest in the Building.
27.15 NON-RELIANCE. Tenant confirms it has not relied on any
statements, representations, or warranties by Landlord or its representatives
except as set forth herein.
27.16 WRITTEN MODIFICATION. No amendment or modification of
this Lease is valid or binding unless in writing and executed by the parties.
27.17 LENDER'S REQUIREMENTS. Tenant will make such
modifications to this Lease as may hereafter be required to conform to any
lender's requirements, so long as such modifications do not increase Tenant's
obligations or materially alter its rights.
27.18 EFFECTIVENESS. Submission of this instrument for
examination or signature by Tenant does not constitute a reservation of or
option to lease and it is not effective unless and until execution and
delivery by both Landlord and Tenant.
27.19 SURVIVAL. This Lease, notwithstanding expiration or
termination, continues in effect as to any provisions requiring observance or
performance subsequent to termination or expiration.
27.20 TIME OF ESSENCE. Time is of the essence herein.
27.21 RULES AND REGULATIONS. If rules and regulations are
attached hereto, they are a part of this Lease and Tenant agrees that Tenant
and Tenant's Agents shall at all times abide by such rules and regulations.
27.22 RECORDING, Tenant will not record this Lease. Recording
of the Lease by or on behalf of Tenant is an Event of Default.
28. AUTHORITIES FOR ACTION AND NOTICE.
15
28.1 Unless otherwise provided, Landlord may act through
Landlord's Building Manager or other designated representatives from time to
time.
28.2 All notices or other communications required or desired
to be given to Landlord must be in writing and shall be deemed received when
delivered personally to any officer, partner, or member of Landlord
(depending upon the nature of Landlord) or the manager of the Building (the
"Building Manager") whose office is in the Building, or when deposited in the
United States mail, postage prepaid, certified or registered, return receipt
requested, addressed as provided in Section 1.10. All notices or
communications required or desired to be given to Tenant shall be in writing
and deemed duly served when delivered personally to any officer, employee,
partner, or member of Tenant (depending upon the nature of Tenant),
individually if a sole proprietorship, or manager of Tenant whose office is
in the Building, or when deposited in the United States mail, postage
prepaid, certified or registered, return receipt requested, addressed as
provided in Section 1.12. Either party may designate in writing served as
above provided a different address to which notice is to be mailed. The
foregoing does not prohibit notice from being given as provided in Rule 4 of
Colorado Rules of Civil Procedure, as amended from time to time.
29. PARKING. Landlord will make available parking spaces up to
Tenant's Maximum set forth in Section 1.9, if any, for Tenant's use during
the term hereof. Tenant shall notify Landlord on or before the Commencement
Date of the number of parking spaces up to Tenant's Maximum it will initially
require and, thereafter, Tenant shall give Landlord written notice at least
30 days prior to the date that Tenant shall require the use of any parking
spaces in addition to those initially accepted, the total of which shall not
exceed Tenant's Maximum. Tenant shall pay the monthly rate in effect for
each parking space utilized as such rate may change from time to time. The
monthly parking rates are currently as follows: $65.00 for an assigned
reserved space, $40 for an unassigned covered space, and $20 for an
unassigned deck (uncovered) space. Landlord reserves the right to determine
the type of parking spaces allocated for Tenant's use. Tenant will receive
one monthly xxxx for all spaces taken which shall be paid in the same manner
and at the same place as Minimum Rent for the Premises. Tenant has no rights
to use parking spaces except as provided in this Section. The right granted
to Tenant to use any space is a license only and Landlord's inability to make
any space available at any time for reasons beyond Landlord's reasonable
control is not a material breach by Landlord of its obligations hereunder.
The abatement of Tenant's obligation to pay for unavailable spaces during any
period of unavailability constitutes Tenant's sole remedy. If Tenant fails
to timely pay a parking xxxx, in addition to being a default under the Lease,
Tenant may, at Landlord's option, forfeit its right to all parking spaces.
All vehicles parked in the parking garage and the personal property therein
shall be at the sole risk of Tenant, Tenant's Agents and the users of such
spaces and Landlord shall have no liability for loss or damage thereto for
whatever cause.
Landlord hereby covenants and agrees that ten (10) of Tenant's Maximum
spaces will be specifically allocated as roof/deck (uncovered) spaces in the
parking garage and designated via appropriate signage as reserved for the
visitors of Tenant. Tenant shall be solely responsible for all costs and
expenses incurred by Landlord in installing and maintaining the signage
designating the visitor parking spaces for Tenant.
30. SUBSTITUTE PREMISES. [Intentionally Deleted]
31. BROKERAGE. Tenant represents it has not employed any broker
with respect to this Lease and has no knowledge of any broker's involvement
in this transaction except those listed in Sections 1.14 and 1.15
(collectively, the "Brokers"). Tenant shall indemnify Landlord against any
expense incurred by Landlord as a result of any claim for commissions or fees
by any other broker, finder, or agent, whether or not meritorious, employed
by Tenant or claiming by, through, or under Tenant, other than the Brokers.
Tenant acknowledges Landlord is not liable for any representations by the
Brokers regarding the Premises, Building, Building Complex, or this Lease.
32. LEGAL FEES; PREPARATION OF LEASE. Tenant acknowledges that if
Landlord incurs legal fees in connection with the preparation and negotiation
of this Lease in excess of $7,799.00 the amount of such excess shall be
payable to Landlord as a one-time payment of additional Rent promptly upon
the final determination of Landlord's legal fees.
33. COUNTERPARTS. This Lease may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Any one or more
counterpart signature pages may be removed from one counterpart of the Lease
and annexed to another counterpart of the Lease to form a completely executed
original instrument without impairing the legal effect of the signature
thereon.
34. ADDENDUM/EXHIBITS. Any Addenda or Exhibits referred to herein
are attached hereto and incorporated herein by reference.
35. RIGHT OF OFFER. Landlord grants Tenant a right of offer (the
"Right of Offer") to lease Suite 1130, as depicted on Exhibit A hereto (the
"Offer Space"), on the following basis:
16
35.1 Tenant's Right of Offer is subordinate to all rights of
extension, expansion, offer or refusal of other tenants as to the Offer Space
in place as of the date of this Lease and to Landlord's desire to extend the
term or renew the lease of the tenant then occupying the Offer Space, or any
portion thereof.
35.2 Tenant has 3 business days after being notified by
Landlord of Landlord's desire to lease the Offer Space or any portion thereof
("Landlord's Notice") within which to notify Landlord of its election to
exercise its Right of Offer. Landlord will determine the exact square
footage of the Offer Space at the time such space or any portion thereof is
offered to Tenant. Tenant must take all of the Offer Space identified in
Landlord's Notice and may not elect to lease only a portion thereof.
35.3 If Tenant does not timely notify Landlord, it will be
conclusively presumed that Tenant has waived its Right of Offer to the
portion of the Offer Space identified in Landlord's Notice, Landlord shall be
free to lease that Offer Space to anyone whom it desires, and Tenant will
have no further rights to that portion of the Offer Space.
35.4 The Offer Space will be offered to Tenant for a term
coterminous with the Term and upon the provisions and at the rental rate
Landlord would offer to lease the Offer Space to third parties for a lease
term comparable to the remaining Term, but in no event shall the rental rate
be less than the rental rate that Tenant is paying for the Premises. Such
provisions will include, among other things, escalations, pass-throughs and
an increase in Tenant's Deposit. Upon exercise of the Right of Offer, the
Offered Space will be deemed added to the Premises and Tenant will accept
such space in its "as is" condition without any remodeling or fix-up work
performed by Landlord, except as may be provided in Landlord's Notice. All
costs of preparing the Right of Offer Space for Tenant's occupancy, including
costs of compliance with Applicable Laws will be paid by Tenant. After all of
the Offer Space has been offered to Tenant, whether added or declined, Tenant
has no further rights to add additional space to the Premises. After exercise
of the Right of Offer, the parties, at the request of either party, will
execute an amendment to the Lease evidencing the addition of such space.
35.5 The Right of Offer, if not earlier expired, shall expire
upon the first to occur of the following: (i) the occurrence of an Event of
Default, (ii) an assignment of the Lease, (iii) Tenant's waiver of its Right
of Offer pursuant to Paragraph 35.3 above; or (iv) the expiration of the
Initial Term.
35.6 All notifications contemplated by this Paragraph, whether
from Tenant to Landlord, or from Landlord to Tenant, must be in writing and
given in the manner provided in this Lease.
IN WITNESS WHEREOF, the parties have executed this Lease as of the day
and year first above written and it is effective upon delivery of a
fully-executed copy to Tenant.
THE ENTERPRISE SYSTEMS GROUP, INC., a PRENTICE POINT LIMITED PARTNERSHIP, a
Texas corporation Delaware limited partnership
By: PRENTICE POINT, INC., General
Partner
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------
Print Name: Xxxxx X. Xxxxxxxx By: /s/ Xxxxxxx XxXxxxxx
----------------------- ------------------------------------
Print Title: President Xxxxxxx XxXxxxxx, Vice President
----------------------
"Landlord"
ATTEST:
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Print Name: Xxxxxxx X. Xxxxxx
-----------------------
Print Title: Secretary
----------------------
"Tenant"
17
EXHIBIT A TO LEASE
DIAGRAM OF PREMISES
[Diagram showing layout of Premises with existing offices]
EXHIBIT B TO LEASE
REAL PROPERTY
PARCEL 1:
That part of Xxx 0, Xxxxx 0, X XXXXXXXXXXXXX XX XXXXX 6, DENVER TECHNOLOGICAL
CENTER FILING NO. 2, described as follows:
Beginning at the Northeast xxxxx of
said Block 2;
thence Southerly along the Easterly line of said Block 2, the same
being the Westerly line of South Wabash Street, a distance of 437.78 feet to a
point of curvature;
thence along a curve to the right with a radius of 75.00
feet and a central angle of 2DEG.59'53" an arc distance of 3.92 feet;
thence along a curve to the right whose tangent makes an angle to the right of
26DEG.06'30" from the tangent of the preceding curve and having a radius of
80.00 feet and a central angle of 77DEG.04'05" an arc distance of 107.61
feet to a point of tangency;
thence along the tangent to the aforesaid curve
141.62 feet;
thence at a deflection angle of 14DEG.28'39" to the left 120.00
feet to a point on the Northeasterly line of East Prentice Avenue;
thence Northwesterly along said Northeasterly line at East Prentice a distance
of 32.60 feet;
thence Northeasterly at an angle of 88DEG.18'38" to the right a distance of
438.06 feet to the North line of said Block 2;
thence Easterly at an angle of 74DEG.47'33" to the right and along said
North line, a distance of 270.00 feet to the point of beginning,
County of Arapahoe,
State of Colorado.
PARCEL 2:
That part of Xxx 0, Xxxxx 0, X XXXXXXXXXXXXX XX XXXXX 6, DENVER TECHNOLOGICAL
CENTER FILING NO. 2, described as follows:
Commencing at the Northeast corner of said Block 2;
thence Westerly along the North line of said Block 2, a distance of 270.00 feet
to the TRUE POINT OF BEGINNING;
thence continuing along said North line of Block 2, a distance of 98.43 feet;
thence Southwesterly at a deflection angle of 89DEG.16'39" to the left
203.35 feet;
thence on an angle to the left of 90DEG.00'00", a distance of
45.57 feet;
thence on an angle to the left of 75DEG.30'54", a distance of
211.31 feet to the TRUE POINT OF BEGINNING,
County of Arapahoe,
State of Colorado.
PARCEL 3:
An easement for ingress and egress granted in First Amended and Restated Cross
Easement Agreement by and between The Dow Chemical Company and Prentice Point,
Ltd. recorded September 8, 1989, in Book 5769, at Page 00,
Xxxxxx xx Xxxxxxxx,
Xxxxx of Colorado.
PARCEL 4:
A license to construct, operate, maintain, repair and replace a concrete
courtyard across the City of Aurora's Rampart Waterline Easement, as granted by
the City of Aurora, Colorado, pursuant to a License Agreement dated August 16,
1985 and recorded September 10, 1985 in Book 4541 at image 336, as assigned to
Prentice Point Associates, L.P., a California limited partnership by Assignment
thereof recorded June 3, 1994 in Book 7581 at Page 122, as assigned to Prentice
Point Limited Partnership, a Delaware limited partnership, by Assignment thereof
recorded January 1, 1997, at Reception Xx. X0000000.
Xxxxxx xx Xxxxxxxx,
Xxxxx of Colorado.
EXHIBIT C
PREMISES COMPLETION
[Intentionally Omitted]
EXHIBIT D TO LEASE
COMMENCEMENT CERTIFICATE
[Intentionally Omitted]
2
EXHIBIT E TO LEASE
RULES AND REGULATIONS
The following rules and regulations have been formulated for the safety
and well-being of all tenants of the Building and to insure compliance with
governmental and other requirements. Strict adherence to these rules and
regulations is necessary to guarantee that each and every tenant will enjoy a
safe and undisturbed occupancy of its premises in the Building. Any
continuing violation of these rules and regulations by Tenant shall
constitute a default by Tenant under the Lease.
Landlord may, upon request of any tenant, waive the compliance by such
tenant of any of the following rules and regulations, provided that (i) no
waiver shall be effective unless signed by Landlord's authorized agent, (ii)
any such waiver shall not relieve such tenant from the obligation to comply
with such rule or regulation in the future unless otherwise agreed to by
Landlord, (iii) no waiver granted to any tenant shall relieve any other
tenant from the obligation of complying with these rules and regulations,
unless such other tenant has received a similar written waiver from
Landlord;.and (iv) any such waiver shall not relieve such tenant from any
liability to Landlord for any loss or damage occasioned as a result of such
tenant's failure to comply.
1. The sidewalks, entrances, passages, courts, elevators,
vestibules, stairways, corridors, roof, halls and other parts of the Building
not exclusively occupied by any tenant shall not be obstructed or encumbered
by any tenant or used for any purpose other than ingress and egress to and
from each tenant's premises. Landlord shall have the right to control and
operate the public portions of the Building, and the facilities furnished for
common use of the tenants, in such manner as Landlord deems best for the
benefit of the tenants generally. No tenant shall permit the visit to its
premises of persons in such numbers or under such conditions as to interfere
with the use and enjoyment of the entrances, corridors, elevators and other
public portions or facilities of the Building by other tenants.
2. No awnings or other projections shall be attached to the outside
walls of the Building without the prior written consent of Landlord. No
drapes, blinds, shades or screens shall be attached to or hung in, or used in
connection with, any window or door of the Premises, without the prior
written consent of Landlord. All awnings, projections, curtains, blinds,
shades, screens and other fixtures must be of a quality, type, design and
color, and attached in the manner approved by Landlord.
3. No showcases or other articles shall be put in front of or
affixed to any part of the exterior of the Building or any tenant's premises,
nor placed in the halls, corridors or vestibules without the prior written
consent of Landlord.
4. The water and wash closets and other plumbing fixtures shall not
be used for any purposes other than those for which they were constructed,
and no debris, rubbish, rags or other substances shall be thrown therein.
All damage resulting from any misuse of the fixtures shall be borne by the
tenant who, or whose servants, employees, agents, visitors or licensees,
shall have caused the same.
5. There shall be no marking, painting, drilling into or defacement
of the Building, or any part of any tenant's premises that is visible from
public areas of the Building. Tenants shall not construct, maintain, use or
operate within their respective premises any electrical device, wiring or
apparatus in connection with a loud speaker system or other sound system,
except as reasonably required as part of a communication system approved
prior to the installation thereof by Landlord. No such loud speaker or sound
system shall be constructed, maintained, used or operated outside the
premises of any tenant.
6. No bicycles or vehicles and no animals, birds or pets of any
kind shall be brought into or kept in or about the Building or any tenant's
premises, except that this rule shall not prohibit the parking of bicycles or
vehicles in areas specifically designated therefor by Landlord. No cooking
or heating of food shall be done or permitted by any tenant on its premises
except for food prepared in portable microwave ovens (provided that no odors
are emitted such as in the preparation of popcorn). No tenant shall cause or
permit any unusual or objectionable odors to be produced upon or permeate
from its premises.
7. No space in the Building shall be used for the manufacture of
goods for sale in the ordinary course of business, or for the sale at auction
of merchandise, goods or property of any kind. Furthermore, the use of its
premises by any tenant shall not be changed without the prior approval of
Landlord.
8. No tenant shall make any unseemly or disturbing noises or
disturb or interfere with the occupants of the Building or neighboring
buildings or premises or those having business with them, whether by the use
of any musical instrument, radio, talking machine, whistling, singing, or in
any other way. No tenant shall throw anything out of the doors or windows or
into or down the corridors or stairs of the Building.
9. No flammable, combustible or explosive fluid, chemical or
substance shall be brought into or kept upon the Premises.
10. No additional locks or bolts of any kind shall be placed upon
any of the doors or windows by any tenant, nor shall any changes be made in
any existing locks or the locking mechanism therein, without Landlord's
approval. The doors leading to the corridors or main halls shall be kept
closed during business hours except as they may be used for ingress or
egress. Each tenant shall, upon the termination of its tenancy, restore to
Landlord all keys of stores, offices, storage and toilet rooms either
furnished to, or otherwise procured by, such tenant, and in the event of the
loss of any keys so furnished, such tenant shall pay to Landlord the
replacement cost thereof. Tenant's key system shall be separate from that
for the rest of the Building.
11. Landlord reserves the right to inspect all freight to be brought
into the Building and to exclude from the Building all freight which violates
any of these rules and regulations of the Lease.
12. Landlord reserves the right to exclude from the Building at all
times any person who is not known or does not properly identify himself or
herself to the Building management or watchman, if any, on duty. Landlord
may, at its option, require all persons admitted to or leaving the Building
between the hours of 6:00 p.m. and 7:00 a.m., Monday through Friday, and at
any hour on Saturdays, Sundays and legal holidays, to register. Each tenant
shall be responsible for all persons for whom it authorizes entry in the
Building, and shall be liable to Landlord for all acts or omissions of such
persons.
13. The Premises shall not, at any time, be used for lodging or
sleeping or for any immoral or illegal purposes.
14. Tenant assumes all responsibility for protecting the Premises
from theft, and each tenant, before closing and leaving the Premises at any
time, shall see that all doors and windows are closed and locked, and all
lights turned off.
15. Landlord's employees shall not perform any work or do anything
outside of their regular duties, unless under special instruction from the
management of the Building. The requirements of tenants will be attended to
only upon application to Landlord, and any such special requirements shall be
billed to Tenant (and paid when the next installment of rent is due) in
accordance with the schedule of charges maintained by Landlord from time to
time or at such charge as is agreed upon in advance by Landlord and Tenant.
16. Canvassing, soliciting and peddling in the Building and on the
Property are prohibited and each tenant shall cooperate to prevent the same.
Peddlers, solicitors and beggars shall be reported to the Building manager or
as Landlord otherwise requests.
17. There shall not be used in any space, or in the public halls of
the Building, either by any tenant or by jobbers or others in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber
tires and side guards. Tenant shall be responsible to Landlord for any loss
or damage resulting from any deliveries made by or for Tenant to the Building.
18. Mats, trash or other objects shall not be placed in the public
corridors of the Building.
19. Landlord does not maintain suite finishes which are
non-standard, such as kitchens, bathrooms, wallpaper, special lights, etc.
However, should the need arise for repairs of items not maintained by
Landlord, Landlord will arrange for the work to be done at Tenant's expense.
20. Drapes installed by Landlord for the use of Tenant or drapes
installed by Tenant, with Landlord's approval, which are visible from the
exterior of the Building, must be cleaned by Tenant at least once a year,
without notice, at the tenant's own expense.
21. The Building directory located in the Building lobby as provided
by Landlord shall be available to Tenant solely to display its name and
location in the Building, which display shall be as directed by Landlord.
22. Tenant shall not cause any unnecessary janitorial labor or
services by reason of Tenant's carelessness or indifference in the
preservation of good order and cleanliness.
23. Tenant shall not install linoleum, tile, carpet or other floor
covering so that the same shall be affixed to the floor of the Premises in
any manner except as approved by Landlord.
24. No furniture, packages, supplies, equipment or merchandise will
be received in the Building or carried up or down in the elevators, except
between such hours and in such elevators and under such other conditions as
shall be designated by Landlord.
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25. Tenant shall not waste heat or air-conditioning and shall
cooperate fully with Landlord to assure the most effective operation of the
Building's heating and air-conditioning, and shall refrain from attempting to
adjust any controls other than room thermostats installed for Tenant's use.
26. Landlord shall have sole power and discretion to control the
quantity, size, location, and design of all tenant identification signage.
No such signage shall be erected without Landlord's written consent.
27. The loading dock area is exclusively reserved for authorized
traffic and Tenant shall not use same for temporary parking.
28. No eating, drinking, sleeping, or loitering shall be permitted
in the lobby areas.
29. Landlord may from time to time alter or amend these Rules and
Regulations, and Tenant shall comply with the Amended Rules and Regulations.
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