EXHIBIT 10.1
LEGACY TOWER OFFICE LEASE
THIS LEASE, made and entered this 21st day of December, 2001, by and
between WXI/SEV REALTY, LLC, a Delaware limited liability company (hereinafter
referred to as "Landlord"), and MATRIX BANCORP, INC., a Colorado corporation
(hereinafter referred to as "Tenant").
W I T N E S S E T H:
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For and in consideration of the rental and of the covenants and
agreements hereinafter set forth to be kept and performed by Tenant, Landlord
hereby leases to Tenant and Tenant hereby leases from Landlord the leased
premises herein described for the Lease Term, at the rental and subject to and
upon all of the terms, covenants and agreements hereinafter set forth.
1. LEASED PREMISES.
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1.1. Grant of Leased Premises. Landlord hereby leases to Tenant
and Tenant leases from Landlord those certain premises set forth in Section 6.1
of the Summary (hereinafter referred to as the "Leased Premises"), which Leased
Premises are located in the multi-story commercial office building described in
Section 6.2 of the Summary (hereinafter referred to as the "Building"). The
Building, any outside plaza areas, land and other improvements surrounding the
Building, the Common Areas, as defined below, and the land upon which any of the
foregoing are situated are sometimes collectively referred to herein as the
"Real Property." The legal description of land comprising the Real Property is
set forth in the attached Exhibit A. A floor plan showing the size and location
of the Leased Premises within the Building is set forth in the attached Exhibit
B. Tenant's use and occupancy of the Leased Premises shall include the use, in
common with others, of the Common Areas as hereinafter described, but excepting
therefrom and reserving unto Landlord the exterior faces of all exterior walls,
the roof and the right to install, use and maintain where necessary in the
Leased Premises all pipes, ductwork, conduits and utility lines through hung
ceiling space, partitions, beneath the floor or through other parts of the
Leased Premises; provided such installation, use and maintenance do not
unreasonably interfere with the use and occupancy of the Leased Premises by
Tenant or diminish Tenant's access to the Leased Premises. Landlord reserves the
right to effect such other tenancies in the Building as Landlord may elect in
its sole business judgment.
1.2. Rentable Area. The parties hereby stipulate that (i) the
Premises contain the Rentable Area as set forth in Section 6.1 of the Summary,
(ii) the third (3rd) floor of the Building which is subject to Tenant's
Expansion Option, as set forth in Section 1.4 below, contains 11,833 square feet
of Rentable Area, and (iii) such square footage amounts are not subject to
adjustment or re-measurement by Landlord or Tenant. Accordingly, there shall be
no adjustment in the Base Rent or other amounts set forth in this Lease which
are determined based upon the Rentable Area of the initial Premises (or with
respect to the third (3rd) floor Expansion Space if leased by Tenant pursuant to
Section 1.4 below). If Tenant leases any First Offer Space pursuant to Section
1.5 below, then the "Rentable Area" of such First Offer Space shall be
calculated by Landlord pursuant to the Standard Method for Measuring Floor Area
in Office Buildings, ANSI Z65.1-1996 ("BOMA") as modified pursuant to Landlord's
standard rentable area measurements for the Building. The square feet of
Rentable Area of any such First Offer Space leased by Tenant pursuant to Section
1.5 shall be determined by Landlord or Landlord's architect, after consultation
with Tenant, in accordance with the measurement standards set forth above.
1.3. Construction by Landlord. The obligations of Landlord, if
any, to perform the work and supply materials and labor to prepare the Leased
Premises for Tenant's particular use and occupancy are set forth in detail in
Exhibit D attached hereto. Landlord shall have the work, if any, which is
Landlord's obligation to perform in Exhibit D performed promptly and diligently
in a first-class workmanlike manner, but Landlord shall not be liable in any
manner for its failure to complete construction in a timely manner, except as
may be set forth in Exhibit D. The parties hereby agree that any furniture,
fixtures, equipment or personal property remaining in the initial Leased
Premises as of the date this Lease is executed (collectively, the "FF&E") shall
remain in the Leased Premises and shall be provided to Tenant, at no cost to
Tenant, in their "AS-IS," "WHERE-IS," "WITH ALL FAULTS" condition, and without
representation or warranty by Landlord. Contemporaneous with the execution of
this Lease, Landlord shall deliver to Tenant a xxxx of sale duly executed by
Landlord in the form of Exhibit J attached hereto transferring to Tenant
Landlord's right, title and interest in and to the FF&E effective as of the
Lease Commencement Date (the "Xxxx of Sale").
1.4. Option to Expand. Tenant shall have a one-time option
("Expansion Option") exercisable by Tenant during the period (the "Expansion
Option Availability Period") commencing as of the date of execution of this
Lease and continuing until the last day of the ninth (9th) month of the Lease
Term, to lease the entire Rentable Area of the third (3rd) floor of the
Building, containing 11,833 square feet of Rentable Area (the "Expansion
Space"), upon the terms and conditions set forth in this Section 1.4.
1.4.1. Method of Exercise. In the event Tenant elects to
exercise the Expansion Option contained in this Section 1.4, Tenant shall
deliver irrevocable written notice ("Tenant's Expansion Notice") to Landlord
within the Expansion Option Availability Period, and Landlord and Tenant shall,
with fifteen (15) business days thereafter, execute an amendment to this Lease
(the "Expansion Amendment") memorializing Tenant's lease of the Expansion Space
upon the terms and conditions set forth in this Section 1.4 and this Lease. The
date Tenant delivers Tenant's Expansion Notice to Landlord within the Expansion
Option Availability Period shall be referred to herein as the "Expansion
Exercise Date."
1.4.2. Expansion Rent. The annual Base Rent payable by Tenant
for the Expansion Space (the "Expansion Rent") during the Expansion Space Term
(as defined in Section 1.4.4 below) shall be equal to the same annual Base Rent
payable by Tenant under this Lease with respect to the initial Leased Premises,
calculated on a per square foot of Rentable Area basis, and subject to increases
(calculated on a per square foot of Rentable Area basis) at the same time as the
Base Rent increases for the initial Leased Premises as set forth in Section 8 of
the Summary. During the Expansion Space Term, Tenant shall pay Tenant's Share of
increases in Operating Expenses for the Expansion Space pursuant to the
provisions of Article 6 below, with Tenant's Share for the Expansion Space to be
equal to the percentage calculated by dividing the Rentable Area of the
Expansion Space by the total Rentable Area within the Building. Except as
provided in this Section 1.4.2 below, there shall be no abatement of the
Expansion Rent, and the abatement provisions of Section 3.1 below shall not
apply with respect to the Expansion Space. Notwithstanding the foregoing, in the
event Tenant delivers Tenant's Expansion Notice to Landlord prior to July 1,
2002, Landlord shall xxxxx Tenant's obligation to pay the Expansion Rent (the
"Abated Expansion Rent") for the period (the "Abated Expansion Rent Period")
commencing as of the Expansion Space Commencement Date (as defined below) and
continuing until the earlier of (i) six (6) months after the Expansion Space
Commencement Date, or (ii) April 30, 2003. During the Abated Expansion Rent
Period, Tenant shall remain responsible for the payment of all of its other
monetary obligations under this Lease, including, without limitation, the
payment of Base Rent for the initial Leased Premises and the payment of
Operating Expenses for the entire Leased Premises, including the Expansion
Space, and any First Offer Space leased by Tenant pursuant to Section 1.5 below.
In the event of a default by Tenant under the terms of this Lease, as amended by
the Expansion Amendment, that results in early termination pursuant to the
provisions of Section 16.3 below, then as a part of the recovery set forth in
Section 16.3 below, Landlord shall be entitled to the recovery of the Abated
Expansion Rent.
1.4.3. Construction of Expansion Space. Tenant shall lease
the Expansion Space in its "AS-IS" condition as of the Expansion Exercise Date
and the Expansion Space Commencement Date, and Landlord shall not be obligated
to provide or pay for any improvements, remodeling or refurbishment work or
services related to the improvement, remodeling or refurbishment of the
Expansion Space. The parties hereby agree that any furniture, fixtures,
equipment or personal property remaining in the Expansion Space as of the
Expansion Space Commencement Date (collectively referred to herein as the
"Expansion Space FF&E") shall remain in the Expansion Space and shall be
provided to Tenant, at no cost to Tenant, in their "AS-IS," "WHERE-IS," "WITH
ALL FAULTS" condition, and without representation or warranty by Landlord.
Contemporaneous with the execution of the Expansion Amendment, Landlord shall
deliver to Tenant a xxxx of sale duly executed by Landlord substantially in the
form of Exhibit J attached hereto transferring to Tenant Landlord's right, title
and interest in and to the Expansion Space FF&E effective as of the Expansion
Space Commencement Date. Any construction of improvements within the Expansion
Space by Tenant shall comply with the terms and conditions of Article 9 below.
Tenant shall have the option, exercisable by written notice delivered to
Landlord concurrently with Tenant's Expansion Notice, to receive an allowance
from Landlord (the "Expansion Space Moving/FF&E Allowance") in the amount of
$250,000.00 to help reimburse Tenant for the costs incurred by Tenant in moving
to the Expansion Space and acquiring and installing furniture, fixtures,
equipment and other personal property in the Expansion Space on or before the
first (1st) anniversary of the Expansion Space Commencement Date. The amount of
the Expansion Space Moving/FF&E Allowance actually provided by Landlord to
Tenant shall be amortized on a monthly basis over the first sixty (60) months of
the Expansion Space Term together with interest at an interest rate of eleven
percent (11%) per annum. As consideration for Landlord providing the Expansion
Space Moving/FF&E Allowance to Tenant, such monthly amortized amount of the
Expansion Space Moving/FF&E Allowance (the "Expansion Space Improvement Rent")
shall be paid by Tenant to Landlord as additional Rent, on the first (1st) day
of each month during the first sixty (60) months of the Expansion Space Term. In
the event this Lease, as amended by the Expansion Amendment, shall terminate for
any reason, including without limitation as a result of a default by Tenant
under the terms of this Lease, as amended by the Expansion Amendment, Tenant
acknowledges and agrees that the unamortized balance of the Expansion Space
Moving/FF&E Allowance which has not been paid by Tenant to Landlord as of the
termination date shall become immediately due and payable to Landlord as unpaid
Rent which has been earned as of such termination date. In addition, in no event
shall the Expansion Space Improvement Rent be abated for any reason whatsoever,
including without limitation, pursuant to Sections 1.4.2 or 3.1 or Articles 12
or 18 below.
1.4.4. Expansion Space Term; Expansion Space Commencement
Date. The lease term for the Expansion Space (the "Expansion Space Term") and
the commencement of Tenant's payment of Expansion Rent for the Expansion Space
shall commence upon the date (the "Expansion Space Commencement Date") which is
the earlier of: (i) the date Tenant commences business operations in the
Expansion Space; or (ii) November 1, 2002. The Expansion Space Term shall expire
coterminously with the Lease Term for the initial Leased Premises (as it may be
extended pursuant to the Extension Option Rider attached hereto).
1.4.5. Suspension of Expansion Option. Notwithstanding
anything in this Lease to the contrary, at Landlord's option, and in addition to
all of Landlord's remedies under this Lease, at law or in equity, Tenant's
Expansion Option shall not be deemed to be properly exercised if, as of the
Expansion Exercise Date or on the Expansion Space Commencement Date, Tenant is
in default under this Lease, as amended by the Expansion Amendment. In addition,
Tenant's Expansion Option is personal to the original Tenant executing this
Lease (the "Original Tenant"), and may not be assigned or exercised, voluntarily
or involuntarily, by or to, any person or entity other than the Original Tenant,
and shall only be available to and exercisable by the Tenant if as of the
Expansion Exercise Date or the Expansion Space Commencement Date the Original
Tenant has not assigned or sublet all or any portion of this Lease or the Leased
Premises.
1.5. Right of First Offer. Tenant shall have a right of first
offer to lease all, but not less than all, of the entire square feet of Rentable
Area contained on the twenty-fourth (24th) floor of the Building (the "First
Offer Space"), when such space becomes available for lease as provided
hereinbelow as determined by Landlord. For purposes hereof, the First Offer
Space shall become available for lease immediately prior to the first time
Landlord intends to submit to a third party a bona fide proposal or letter of
intent to lease all or any portion of the First Offer Space (the "Third Party
Proposal").
1.5.1. Terms of Lease of First Offer Space. If the First
Offer Space will or has become available for lease by Tenant as provided above
(as such availability is determined by Landlord), then Landlord shall give
Tenant written notice of such availability (the "First Offer Notice"), which
notice shall set forth the terms upon which Landlord would lease the First Offer
Space to Tenant, including, without limitation (i) the anticipated date upon
which the First Offer Space will be available for lease by Tenant and the
commencement date therefor, (ii) a schedule of construction of tenant
improvements for the First Offer Space, if any, (iii) the First Offer Space Rent
(as defined in this Section 1.5.3 below), (iv) any tenant improvement allowance
for such First Offer Space (as determined in Section 1.5.4 below), and (v) the
term of the lease for such space, which shall in all events be coterminous with
the Lease Term for the initial Leased Premises (as it may be extended pursuant
to the Extension Option Rider attached hereto). Notwithstanding the foregoing to
the contrary, if the Third Party Proposal pertains to more space than the 24th
floor, Landlord may include such space in Landlord's First Offer Notice
delivered to Tenant as provided hereinabove, in which event the "First Offer
Space" for purposes hereof shall include the entire space so identified in
Landlord's First Offer Notice.
1.5.2. Procedure for Acceptance. On or before the date which
is five (5) days after Tenant's receipt of Landlord's First Offer Notice (the
"Election Date"), Tenant shall deliver written notice to Landlord ("Tenant's
Election Notice") pursuant to which Tenant shall have the one-time right to
elect either to: (i) lease the entire First Offer Space described in the First
Offer Notice upon the terms set forth in the First Offer Notice; or (ii) refuse
to lease the entire First Offer Space described in the First Offer Notice.
Notwithstanding anything to the contrary contained herein, Tenant must elect to
exercise its right of first offer, if at all, with respect to all of the First
Offer Space described in any First Offer Notice delivered by Landlord to Tenant
hereunder, and Tenant may not elect to lease only a portion thereof. If Tenant
does not respond in writing to Landlord's First Offer Notice by the Election
Date, Tenant shall be deemed to have elected the option described in clause (ii)
of this Section 1.5.2. If Tenant elects or is deemed to have elected the option
described in clause (ii) of this Section 1.5.2, then the provisions of Section
1.5.2.1 below shall apply and Tenant's right of first offer set forth in this
Section 1.5 shall terminate with respect to the entire First Offer Space
described in Landlord's First Offer Notice, and Landlord shall thereafter have
the right to lease all or any portion of the First Offer Space described in
Landlord's First Offer Notice on any terms Landlord desires to any third party.
If Tenant leases any First Offer Space pursuant to this Section 1.5, (A)
Landlord and Tenant shall, with fifteen (15) business days thereafter, execute
an amendment to this Lease (the "First Offer Amendment") memorializing Tenant's
lease of the First Offer Space upon the terms and conditions set forth in this
Section 1.5, and (B) thereafter Tenant shall have no further right to lease any
other space in the Building pursuant to this Section 1.5 (including Section
1.5.2.1 below).
1.5.2.1. In the event Tenant refuses, or is deemed
to have refused, to lease the entire First Offer Space identified in Landlord's
First Offer Notice as provided hereinabove, the definition of "First Offer
Space" shall thereupon be revised to mean that certain space comprising the next
full floor of the Building which is located immediately below the First Offer
Space identified in Landlord's First Offer Notice and which is not subject to an
executed lease as of the date of such refusal or deemed refusal (such date shall
be referred to herein as the "Refusal Date"), and which has not previously been
described as available for lease in any First Offer Notice previously delivered
by Landlord to Tenant. However, in no event shall the First Offer Space, as a
result of the implementation of this Section 1.5.2.1 or otherwise, pertain to
any space below the twenty-first (21st) floor of the Building. Upon any such
revision to the definition of the First Offer Space, Tenant shall have the right
of first offer to lease such revised First Offer Space pursuant to the foregoing
provisions of this Section 1.5 when such revised First Offer Space becomes
available for lease as described hereinabove as determined by Landlord (i.e.,
immediately prior to the first time Landlord intends to submit a Third Party
Proposal to lease all or any portion of such revised First Offer Space), except
that (i) Tenant's right of first offer to lease such revised First Offer Space
set forth herein shall be subject and subordinate to all expansion, first offer
and similar rights to lease all or any portion of such revised First Offer Space
set forth in any lease for space in the Building which has been executed as of
the Refusal Date, and (ii) if Tenant refuses, or is deemed to have refused, to
lease such entire revised First Offer Space, the definition of the "First Offer
Space" shall thereupon again be further revised to mean that certain space
comprising the next full floor of the Building which is located immediately
below such further revised First Offer Space and which is not subject to an
executed lease as of the date of such refusal or deemed refusal. The foregoing
process of revising the First Offer Space shall continue until the earlier of
(A) the date Tenant leases of any First Offer Space pursuant to this Section
1.5, or (B) the date of Tenant's refusal, or deemed refusal, to lease the last
full floor First Offer Space revised pursuant to the foregoing provisions of
Section 1.5.2.1. Tenant acknowledges and agrees that Landlord may lease all or
any portion of space in the Building prior to the time such space would
otherwise become revised First Offer Space pursuant to the foregoing provisions
of this Section 1.5.2.1, and if Landlord does so, such leased space and the
remaining space on the floor on which the such leased space is located shall no
longer be available to become First Offer Space or subject to Tenant's first
offer right herein.
1.5.3. First Offer Rent. If Tenant leases any First Offer
Space hereunder, during the First Offer Term, Tenant shall pay Tenant's Share of
increases in Operating Expenses for such First Offer Space pursuant to the
provisions of Article 6 below, with Tenant's Share for such First Offer Space to
be equal to the percentage calculated by dividing the Rentable Area of such
First Offer Space by the total Rentable Area within the Building. The annual
Base Rent payable by Tenant for any First Offer Space leased by Tenant hereunder
(the "First Offer Rent") shall be determined as follows:
1.5.3.1. In the event that Tenant delivers to
Landlord Tenant's Election Notice prior to July 1, 2002, the Base Rent payable
by Tenant for the First Offer Space leased by Tenant shall be equal to the
product of $23.00 multiplied by the Rentable Area contained in the First Offer
Space. Such First Offer Rent shall increase at the same times and at the same
rate per square foot of Rentable Area within the First Offer Space as the Base
Rent increases on a per square foot of Rentable Area basis for the initial
Leased Premises as set forth in Section 8 of the Summary. Except as provided in
this Section 1.5.3.1 below, there shall be no abatement of the First Offer Rent,
and the abatement provisions of Section 3.1 below shall not apply with respect
to the First Offer Space. Notwithstanding the foregoing, in the event Tenant
delivers Tenant's Election Notice to Landlord prior to July 1, 2002, Landlord
shall xxxxx Tenant's obligation to pay the First Offer Rent (the "Abated First
Offer Rent") for the period (the "Abated First Offer Period") commencing as of
the First Offer Space Commencement Date and continuing until the earlier of (i)
six (6) months after the First Offer Space Commencement Date, or (ii) April 30,
2003. During the Abated First Offer Period, Tenant shall remain responsible for
the payment of all of its other monetary obligations under this Lease,
including, without limitation, the payment of Base Rent for the initial Leased
Premises and the payment of Operating Expenses for the entire Leased Premises,
including the First Offer Space, and any Expansion Space leased by Tenant
pursuant to Section 1.4 above. In the event of a default by Tenant under the
terms of this Lease, as amended by the First Offer Amendment, that results in
early termination pursuant to the provisions of Section 16.3 below, then as a
part of the recovery set forth in Section 16.3 below, Landlord shall be entitled
to the recovery of the Abated First Offer Rent.
1.5.3.2. In the event that Tenant delivers Tenant's
Election Notice to Landlord after to June 30, 2002, the First Offer Rent payable
by Tenant for the First Offer Space leased by Tenant shall be equal to the "Fair
Market Rental Rate" for such First Offer Space, as that term is defined in and
determined pursuant to the provisions of the Extension Option Rider attached to
this Lease, and there shall be no abatement of the Expansion Rent, and the
abatement provisions of Section 1.5.3.1 above or Section 3.1 below shall not
apply.
1.5.4. Construction In First Offer Space. If Tenant timely
elects to lease any First Offer Space pursuant to this Section 1.5, such First
Offer Space shall be leased by Tenant in its "AS IS" condition as of the date
Tenant delivers Tenant's Election Notice and as of the First Offer Space
Commencement Date, and Landlord shall construct the initial tenant improvements
for the First Offer Space pursuant to a tenant work letter to be attached as an
exhibit to the First Offer Amendment (the "First Offer Work Letter"), which
First Offer Work Letter shall be substantially the same as the Tenant Work
Letter attached to this Lease as Exhibit D, except (i) the tenant improvement
allowance to be provided by Landlord for the First Offer Space leased by Tenant
shall be determined as provided hereinbelow, and (ii) the time deadlines for
submittal and approval of plans and specifications and other actions required to
be performed by Landlord and Tenant shall be revised pursuant to a schedule
mutually approved by the parties and set forth in such First Offer Work Letter.
In the event that Tenant delivers Tenant's Election Notice to Landlord prior to
July 1, 2002, Landlord shall provide Tenant a tenant improvement allowance for
the First Offer Space leased by Tenant of up to, but not exceeding, the product
of $36.00 multiplied by the square feet of Rentable Area contained in the First
Offer Space. In the event that Tenant delivers Tenant's Election Notice to
Landlord after June 30, 2002, the tenant improvement allowance to be provided by
Landlord, if at all, for the First Offer Space leased by Tenant shall be
determined as part of the Fair Market Rental Rate payable therefor as set forth
in Section 1.5.3.2 above. In addition to such tenant improvement allowance, if
at the time Tenant delivers Tenant's Election Notice, Tenant has previously
properly exercised Tenant's Expansion Option to lease the Expansion Space
pursuant to Section 1.4 above, Tenant shall also have the option, exercisable by
written notice delivered to Landlord concurrently with Tenant's Election Notice,
to receive an allowance from Landlord (the "First Offer Moving/FF&E Allowance")
in the amount of $170,000.00, to help reimburse Tenant for the costs incurred by
Tenant in moving to the First Offer Space and acquiring and installing
furniture, fixtures, equipment and other personal property in the First Offer
Space on or before the first (1st) anniversary of the First Offer Space
Commencement Date. The amount of the First Offer Moving/FF&E Allowance actually
provided by Landlord to Tenant shall be amortized on a monthly basis over the
first sixty (60) months of the First Offer Term (as defined in Section 1.5.5
below) together with interest at an interest rate of eleven percent (11%) per
annum. As consideration for Landlord providing the First Offer Moving/FF&E
Allowance to Tenant, such monthly amortized amount of the First Offer
Moving/FF&E Allowance (the "First Offer Improvement Rent") shall be paid by
Tenant to Landlord as additional Rent, on the first (1st) day of each month
during the first sixty (60) months of the First Offer Term. In the event this
Lease, as amended by the First Offer Amendment, shall terminate for any reason,
including without limitation as a result of a default by Tenant under the terms
of this Lease, as amended by the First Offer Amendment, Tenant acknowledges and
agrees that the unamortized balance of the First Offer Moving/FF&E Allowance
which has not been paid by Tenant to Landlord as of the termination date shall
become immediately due and payable as unpaid Rent which has been earned as of
such termination date. In addition, in no event shall the First Offer
Improvement Rent be abated for any reason whatsoever, including without
limitation, pursuant to Sections 1.5.3 or 3.1 or Articles 12 or 18 below.
1.5.5. First Offer Space Term; First Offer Space Commencement
Date. The lease term for the First Offer Space (the "First Offer Space Term")
leased by Tenant hereunder and the commencement of Tenant's payment of the First
Offer Rent for such First Offer Space shall commence upon the date (the "First
Offer Space Commencement Date") which is the earlier of: (i) the date Tenant
commences business operations in the Space; or (ii) the later of (A) the date
that the First Offer Space is Ready For Occupancy (to be defined in the First
Offer Work Letter), or (B) November 1, 2002. The First Offer Term shall expire
coterminously with the Lease Term for the initial Leased Premises.
1.5.6. Suspension of Right of First Offer. Notwithstanding
anything in this Lease to the contrary, at Landlord's option, and in addition to
all of Landlord's remedies under this Lease, at law or in equity, the right of
first offer hereinabove granted to Tenant shall not be deemed to be properly
exercised if, as of the date Tenant exercises its right of first offer or on the
scheduled First Offer Space Commencement Date for the First Offer Space, Tenant
is in default under this Lease, as amended by the First Offer Amendment. In
addition, Tenant's right of first offer is personal to the Original Tenant, and
may not be assigned or exercised, voluntarily or involuntarily, by or to, any
person or entity other than the Original Tenant, and shall only be available to
and exercisable by the Tenant if as of date of Tenant's Election Notice or the
First Offer Space Commencement Date the Original Tenant has not assigned or
sublet all or any portion of this Lease or the Leased Premises.
2. TERM.
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2.1. Basic Term. The term of this Lease ("Lease Term") shall be as
set forth in Section 7.1 of the Summary and shall commence on the date
("Commencement Date") set forth in Section 7.2 of the Summary, and shall
terminate on the date (the "Expiration Date") set forth in Section 7.3 of the
Summary, unless this Lease is extended pursuant to the Extension Option Rider
attached hereto or sooner terminated as hereinafter provided. If Landlord does
not deliver possession of the Leased Premises to Tenant on or before the
anticipated Commencement Date (as set forth in Section 7.2(ii) of the Summary),
Landlord shall not be subject to any liability nor shall the validity of this
Lease nor the obligations of Tenant hereunder be affected. In the event that the
Commencement Date is a date which is other than the anticipated Commencement
Date set forth in Section 7.2(ii) of the Summary, within a reasonable period of
time after the date Tenant takes possession of the Leased Premises Landlord
shall deliver to Tenant an Amendment to Lease in the form attached hereto as
Exhibit E, setting forth the Commencement Date and the Expiration Date, and
Tenant shall execute and return such Amendment to Lease to Landlord within five
(5) days after Tenant's receipt thereof. In the event that Landlord does not
deliver such Amendment to Lease to Tenant, the Commencement Date shall be deemed
to be the anticipated Commencement Date set forth in Section 7.2(ii) of the
Summary.
2.2. Early Possession. If, prior to the Commencement Date, Tenant
uses or occupies the Leased Premises or any part thereof with Landlord's prior
written consent, for the purpose of completing alterations to the Leased
Premises, Tenant agrees to observe and perform all the provisions of this Lease
except those which require payment of Rent; provided, however, if Tenant
commences business in any part of the Leased Premises prior to the scheduled
commencement of the Lease Term, the Lease Term shall commence upon such
commencement of business operations as set forth in Section 7.2 of the Summary.
2.3. Delay in Substantial Completion; Special Rent Abatement;
Termination Right.
2.3.1 Special Rent Abatement. If Substantial Completion of
the Leased Premises has not occurred by April 1, 2002 (the "First Outside
Date"), as such date may be extended as provided in Section 2.3.3 below, and the
Commencement Date has not otherwise occurred by the First Outside Date (as so
extended), then, for each day that Substantial Completion of the Leased Premises
is actually delayed beyond the First Outside Date, and as Tenant's sole remedy
for any such delay (except as provided in Section 2.3.2 below), Tenant shall be
entitled to receive a day-for-day of abatement of Base Rent under this Lease for
each day beyond the First Outside Date (as so extended) that Substantial
Completion of the Leased Premises has not so occurred. Any such abatement of
Base Rent provided in this Section 2.3.1 shall be credited toward the monthly
Base Rent first payable under this Lease. If the Base Rent is abated pursuant to
this Section 2.3.1, the Lease Term shall be extended by the number of days that
Base Rent is so abated.
2.3.2 Termination Right; Second Outside Date. If Substantial
Completion of the Leased Premises has not occurred by June 1, 2002 (the "Second
Outside Date"), as such date may be extended as provided in Section 2.3.3 below,
and the Commencement Date has not otherwise occurred by the Second Outside Date
(as may be extended), then the sole remedy of Tenant for such failure (except as
provided in Section 2.3.1 above) shall be the right to deliver a notice to
Landlord (an "Early Termination Notice") electing to terminate this Lease
effective upon the date occurring ten (10) business days following receipt by
Landlord of the Early Termination Notice (the "Early Termination Date"). The
Early Termination Notice must be delivered by Tenant to Landlord, if at all, not
earlier than the Second Outside Date (as the same may be extended pursuant to
Section 2.3.3, below) nor later than fifteen (15) days after the Second Outside
Date; provided, however, if Substantial Completion of the Leased Premises or the
Commencement Date occurs prior to Tenant's delivery of any such Early
Termination Notice, such Early Termination Notice shall be ineffective and
Tenant shall have no such right to terminate this Lease due to any such delay in
Substantial Completion of the Leased Premises beyond the Second Outside Date.
The effectiveness of any such Early Termination Notice delivered by Tenant to
Landlord shall be governed by the terms of this Section 2.3.2. Following any
such termination of this Lease pursuant to this Section 2.3, Landlord and Tenant
shall have no further obligation to each other under this Lease, except for
those obligations which expressly survive termination of this Lease.
2.3.3 Extension of Outside Dates. The First Outside Date and
Second Outside Date as set forth in Sections 2.3.1 and 2.3.2 above shall be
extended day-for-day for each day (i) after December 21, 2001 that this Lease
has not been executed and delivered by Tenant to Landlord and/or Tenant has not
approved the Final Space Plan for the Leased Premises pursuant to Exhibit D, and
(ii) that the Commencement Date and/or Substantial Completion of the Leased
Premises is delayed due to any "Tenant Delays" (as defined in the Tenant Work
Letter) and/or delays described in Article 21 of this Lease.
2.4. Early Termination Option. Notwithstanding anything to the
contrary contained in this Lease, during the initial Lease Term, Tenant shall
have the one-time option to terminate and cancel this Lease effective as of the
last day of the seventh (7th) year of the initial Lease Term (the "Termination
Date"), which right is contingent upon Tenant paying to Landlord the
"Termination Consideration" (as defined below) in accordance with the following
provisions of this Section 2.4. To exercise such termination option, Tenant must
deliver to Landlord on or before the date which is six (6) months prior to the
Termination Date: (i) written notice of Tenant's exercise of such option (the
"Termination Notice"); and (ii) cash in the amount equal to the Termination
Consideration. As used herein, the "Termination Consideration" shall mean an
amount equal to eighteen (18) monthly installments of Base Rent applicable to
the Leased Premises leased by Tenant as of the Termination Date, at the rate
which would have been in effect for the eighteen (18) month period immediately
following the Termination Date had this Lease not been terminated as provided
herein. If Tenant properly and timely exercises the termination option in this
Section 2.4, this Lease shall expire at midnight on the Termination Date, and
Tenant shall be required to surrender the Leased Premises to Landlord on or
prior to such Termination Date in accordance with the applicable provisions of
this Lease. The rights contained in this Section 2.4 are personal to the
Original Tenant and may only be exercised by the Original Tenant (and not by any
assignee, sublessee or other transferee of the Tenant's interest in this Lease
or the Leased Premises, or any part thereof), when Tenant is not in default
under this Lease beyond any applicable notice and cure periods.
3. RENT.
-----------
3.1. Base Rent. Tenant agrees to pay Landlord, promptly when due,
without notice or demand and without deduction or set-off of any amount for any
reason whatsoever, as "Base Rent" for the Leased Premises, the annual amounts
set forth in Section 8 of the Summary, which shall be payable in the monthly
installment amounts set forth in Section 8 of the Summary. Said monthly
installments of Base Rent shall be payable in advance on the first day of each
calendar month during the Lease Term, except that the Base Rent for the
thirteenth (13th) full calendar month of the Lease Term shall be paid at the
time of Tenant's execution of this Lease. Notwithstanding anything to the
contrary contained herein and provided that Tenant faithfully performs all of
the terms and conditions of this Lease, Landlord hereby agrees to xxxxx Tenant's
obligation to pay Tenant's monthly Base Rent (the "Abated Rent") for the initial
Leased Premises leased by Tenant hereunder (and not any of the Expansion Space
or First Offer Space leased by Tenant pursuant to Section 1.4 and 1.5 above) for
the first twelve (12) full months of the initial Lease Term (the "Abatement
Period"). During the Abatement Period, Tenant shall remain responsible for the
payment of all of its other monetary obligations under this Lease. In the event
of a default by Tenant under the terms of this Lease that results in early
termination pursuant to the provisions of Section 16.3 below, then as a part of
the recovery set forth in Section 16.3 below, Landlord shall be entitled to the
recovery of the Abated Rent.
3.2. Adjustment of Rent on Commencement or Expiration. In the
event the Lease Term commences or expires on a day other than the first day of a
calendar month, Tenant shall pay to Landlord on the first day of the Lease Term,
or on the first day of the month in which the Lease Term expires, a sum
determined by multiplying one-thirtieth (1/30th) of the monthly installment of
Base Rent by the number of days in the first or last calendar month of the Lease
Term.
3.3. Operating Expenses. In addition to paying the Base Rent
specified in Section 3.1 above, Tenant agrees to pay Landlord as additional rent
"Tenant's Share" of "Operating Expenses", as those terms are defined in Sections
6.1 and 6.2 below, which are in excess of the Operating Expenses for the "Base
Year", as such term is defined in Section 6.2 below.
3.4. Place of Payment. Base Rent, Tenant's Share of Operating
Expenses and all other sums or charges required by this Lease to be paid by
Tenant to Landlord, all of which are herein sometimes collectively referred to
as "Rent," shall be paid at the office of Landlord as set forth herein, or at
such other place as Landlord may from time to time designate, in lawful money of
the United States.
4. [INTENTIONALLY DELETED].
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5. USE.
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5.1. Permitted Use. Tenant shall use the Leased Premises solely
for general office use consistent with the character of the Building as a
first-class office building, and shall not permit the Leased Premises to be used
for any other purpose; provided, however, Tenant shall be permitted to use the
First Floor Space as a retail banking branch for retail banking purposes and
general offices incidental thereto, consistent with the character of the
Building as a first-class office building. Tenant shall conduct all retail
banking activities on and maintain the First Floor Space as one of its highest
quality retail bank branches consistent with the conduct and maintenance one
would expect in the most visible ground floor space in comparable first-class
office buildings in the central business district of downtown Denver, Colorado.
5.2. Compliance with Laws. Tenant shall, at its sole cost and
expense, promptly comply with all applicable laws, statutes, ordinances, rules,
regulations, orders and requirements, and all recorded covenants, conditions and
restrictions in effect during the Lease Term or any part of the Lease Term
hereof, regulating Tenant's particular use or occupancy of the Leased Premises
or imposing any duty on Landlord or Tenant with regard thereto or with regard to
alteration thereof, including the requirements of federal, state, county and
municipal authorities now in force or which may hereinafter be in force. Tenant
shall not use or permit the use of the Leased Premises in any manner which may
tend to create waste or a nuisance; nor which may tend to obstruct or interfere
with the rights of other tenants of the Building or injure or annoy them.
5.3. Insurance Cancellation. Tenant shall not do or permit
anything to be done on or about the Leased Premises which may in any way
increase the existing rate of any insurance policy covering the Building or Real
Property or any of its contents or cause cancellation of any such insurance
policy.
5.4. Landlord's Rules and Regulations. Tenant shall observe and
comply with the Building Rules and Regulations which are in effect on the date
hereof, as set forth in the attached Exhibit C, and such reasonable amendments
and additions thereto as Landlord may from time to time promulgate and enforce
on a non-discriminatory basis. Landlord shall not be responsible to Tenant for
the non-performance of said rules and regulations by any other tenants of the
Building. Tenant shall not use or allow another person or entity to use any part
of the Leased Premises for the storage, use, treatment, manufacture or sale of
"Hazardous Material," as that term is defined below, except for ordinary and
general office supplies typically used in the ordinary course of business within
office space in first-class office buildings (such as copier, toner, liquid
paper, glue, ink and common household cleaning supplies) which Tenant must use
in compliance with all applicable laws. As used herein, the term "Hazardous
Material" means any hazardous or toxic substance, material or waste which is or
becomes regulated by any local governmental authority, the state in which the
Building is located or the United States Government.
6. OPERATING EXPENSES.
---------------------------
6.1. Tenant's Obligations. In addition to the Base Rent provided
hereinabove, Tenant shall pay to Landlord Tenant's Share of Operating Expenses,
which are in excess of Tenant's Share of the Operating Expenses for the Base
Year, incurred by Landlord on account of operation and maintenance of the
Building and Real Property during the Lease Term. For purposes hereof, "Tenant's
Share" shall mean the percentage set forth in Section 10 of the Summary which
was calculated by dividing the Rentable Area of the Leased Premises set forth in
Section 6.1 of the Summary, by the total Rentable Area within the Building set
forth in Section 10 of the Summary. Landlord reserves the right, in its sole
discretion, to increase or decrease from time to time the total Rentable Area of
the Building, but not the initial Premises or Expansion Space, based upon
Landlord's standard Rentable Area measurement standards used for the Building as
set forth in Section 1.2 of this Lease.
6.2. Definitions.
--------------------
6.2.1. "Base Year" shall mean the calendar year set forth in
Section 11 of the Summary.
6.2.2. "Expense Year" shall mean each calendar year during
the Lease Term (or partial calendar year if the Lease Term commences or ends on
other than the first or last day of a calendar year); provided that Landlord,
upon notice to Tenant, may change the Expense Year from time to time to any
other twelve (12) consecutive-month period, and, in the event of any such
change, Tenant's Share of Operating Expenses shall be equitably adjusted for any
Expense Year involved in any such change.
6.2.3. "Operating Expenses", for purposes hereof, are
intended to be inclusive of all costs of operating and maintaining the Building
and the Real Property, except franchise, estate, inheritance, net income, gift,
corporate and excess profit taxes of Landlord, interest on and capital
retirement of Landlord's mortgage loans, costs charged by Landlord directly to
specific tenants (including any utilities separately metered and charged to
specific tenants), and those items listed in Section 6.2.4 below. Landlord
agrees to make reasonable efforts to minimize operating costs insofar as such
efforts are not inconsistent with Landlord's intent to operate and maintain the
Building in the first-class manner. Operating Expenses may include, but shall
not be limited to the following:
6.2.3.1. "Tax Expenses", which for purposes hereof shall
mean, collectively, any and all general and special taxes and impositions of
every kind and nature whatsoever levied, assessed, or imposed upon, or with
respect to the Building and Real Property, any leasehold improvements, fixtures,
installations, additions, and equipment, whether owned by Landlord or Tenant, or
either because of or in connection with Landlord's ownership, leasing and
operation of the Building and Real Property, including, without limitation, real
estate taxes, personal property taxes, sewer rents, water rents, general or
special assessments, duties or levies charged or levied upon or assessed against
the Building and Real Property and related personal property, transit taxes, all
costs and expenses (including legal fees and court costs) charged for the
protest or reduction of property taxes or assessments in connection with the
Building and Real Property, or any tax or excise on rent or any other tax
(however described) on account of rental received for use and occupancy of any
or all of the Building or Real Property (except Landlord's net income taxes),
whether any such taxes are imposed by the United States, the State of Colorado,
the County of Denver, or any local governmental municipality, authority, or
agency or any political subdivision of any thereof. In no event, however, shall
Tax Expenses for any Expense Year be less than the component of Tax Expenses
comprising a portion of the Base Year.
6.2.3.2. All costs and expenses to Landlord in maintaining
fire and extended coverage insurance, property damage, liability and rent loss
insurance and any other insurance maintained by Landlord covering the use and
operation of the Building, Common Areas, and Real Property which is customary in
comparable buildings in the area or which is reasonably deemed prudent by
Landlord.
6.2.3.3. All costs and expenses of repairing, operating and
maintaining the heating, ventilating and air conditioning system for the
Building, including the cost of all utilities required in the operation thereof,
except those paid directly by tenants of the Building and including the cost of
replacements of equipment used in connection with such repair and maintenance
work and all costs and expenses incurred in making alterations or additions to
the heating, ventilating and air conditioning system in order to comply with
governmental rules, regulations and statutes.
6.2.3.4. The costs of capital improvements and structural
repairs and replacements made in or to the Building in order to conform to
changes subsequent to the Commencement Date in any applicable laws, ordinances,
rules, regulations or orders of any governmental or quasi-governmental authority
having jurisdiction over the Building (herein "Required Capital Improvements")
and the costs of any capital improvements and structural repairs and
replacements designed primarily to reduce Operating Expenses or to reduce the
rate of increase in Operating Expenses (herein "Cost Savings Improvements"). The
expenditures for Required Capital Improvements and Cost Savings Improvements
shall be reimbursed to Landlord in equal installments over the useful life of
such capital improvement or structural repair or replacement (as reasonably
determined by Landlord) together with interest on the balance of the
unreimbursed expenditure at a rate equal to the floating commercial loan rate
announced from time to time by the Wall Street Journal as the prime rate, plus
one percent (1%) per annum (the "Interest Rate") which is in effect on the date
the expenditure was incurred by Landlord; provided, however, the amount to be
reimbursed for any Cost Savings Improvements shall be limited in any year to the
estimated reduction or estimated savings in Operating Expenses as a result
thereof.
6.2.3.5. All costs and expenses incurred by Landlord in
providing standard services and utilities to tenants of the Building, including
office janitorial services, window washing and utilities not separately metered
and not charged by Landlord directly to specific tenants; together with the cost
of replacement of building standard electric light bulbs and fluorescent tubes
and ballasts, which Landlord shall have the exclusive right to provide and
install.
6.2.3.6. All costs and expenses incurred by Landlord in
operating, managing, repairing and maintaining the Building and Real Property,
including all sums expended in connection with the Common Areas for general
maintenance and repairs, resurfacing, painting, restriping, cleaning, sweeping
and janitorial services, window washing, maintenance and repair of elevators,
stairways, sidewalks, curbs and Building signs, sprinkler systems, planting and
landscaping, lighting and other utilities, maintenance and repair of any fire
protection systems, automatic sprinkler systems, lighting systems, emergency
back-up utility systems, storm drainage systems and any other utility systems,
personnel to implement such services and to police the Common Areas, rental
and/or depreciation of machinery and equipment used in such maintenance and
services, police and fire protection services, trash removal services, all costs
and expenses pertaining to snow and ice removal, security systems, utilities,
premiums and other costs for worker's compensation insurance, wages, withholding
taxes, social security taxes, personal property taxes, fees for required
licenses and permits, supplies, and charges for management of the Building and
Common Areas. Costs and expenses incurred by Landlord in operating, managing,
repairing and maintaining the Building and Real Property which are incurred
exclusively for the benefit of specific tenants of the Building will be billed
accordingly and will not be included within the general Operating Expenses.
6.2.3.7. If the Building is not ninety-five percent (95%)
occupied during all or a portion of any calendar year, Landlord shall make an
appropriate adjustment to those components of Operating Expenses which vary
based upon occupancy for such year or applicable portion thereof, employing
sound accounting and management principles, to determine the amount of Operating
Expenses that would have been paid had the Building been ninety-five percent
(95%) occupied; and the amount so determined shall be deemed to have been the
amount of Operating Expenses for such year, or applicable portion thereof.
Landlord shall have the right, from time to time, to reasonably and equitably
allocate some or all of the Operating Expenses among different cost pools for
the Building, including, but not limited to, a separate cost pool for office
space tenants of the Building and a separate cost pool for retail space tenants
of the Building.
6.2.3.8. Notwithstanding anything to the contrary set forth
in this Article 6, when calculating Operating Expenses for the Base Year,
Operating Expenses shall exclude market-wide labor-rate increases due to
extraordinary circumstances, including, but not limited to, boycotts and
strikes, and utility rate increases due to extraordinary circumstances
including, but not limited to, conservation surcharges, boycotts, embargoes,
deregulation or other shortages. In addition, if in any Expense Year subsequent
to the Base Year, the amount of Operating Expenses decreases due to a reduction
in the cost of providing utilities, security and/or other services to the Real
Property for any reason, including without limitation, because of deregulation
of the utility industry and/or reduction in rates achieved in contracts with
utilities and/or service providers, then for purposes of the Expense Year in
which such decrease in Operating Expenses occurred and all subsequent Expense
Years, the Operating Expenses for the Base Year shall be decreased by an amount
equal to such decrease.
6.2.4. Notwithstanding anything herein to the contrary,
Operating Expenses shall not include the following:
6.2.4.1. Costs, including permit, license and inspection
costs, incurred with respect to the installation of improvements made for other
tenants or occupants in the Building or incurred in renovating or otherwise
improving, decorating, painting or redecorating vacant space for other tenants
or occupants of the Building;
6.2.4.2. Costs, including penalties, fines and associated
legal expenses, incurred due to the violation by Landlord or any other tenant in
the Building of applicable laws, that would not have been incurred but for any
such violations by Landlord or any tenant in the Building;
6.2.4.3. Tax penalties incurred as a result of Landlord's
negligence, inability or unwillingness to make payments when due or to file any
income tax or informational returns when due;
6.2.4.4. Costs associated with the operation of the business
of the partnership or entity which constitutes Landlord as the same are
distinguished from the costs of operation of the Building, including partnership
accounting and legal matters, costs of defending any lawsuits with any mortgagee
(except actions where the default of Tenant may be in issue), costs of selling,
syndicating, financing, mortgaging or hypothecating any of Landlord's interest
in the Building, costs of any disputes between Landlord and its employees (if
any) not engaged in the operation of the Building, disputes of Landlord with
building or parking management, or outside fees paid in connection with disputes
with other tenants;
6.2.4.5. costs incurred to comply with applicable laws with
respect to the cleanup, removal, investigation and/or remediation of any
Hazardous Materials (as such term is defined in Section 5.4 above) in, on or
under the Real Property and/or the Building to the extent such Hazardous
Materials are: (i) in existence as of the date of execution of this Lease and in
violation of applicable laws in effect as of such date, and were of such a
nature that a federal, state or municipal governmental or quasi-governmental
authority, if it had then had knowledge of the presence of such Hazardous
Materials, in the state and under the conditions that the same existed in the
Building or on the Real Property, would have then required removal, remediation
or other action with respect to such Hazardous Materials; or (ii) introduced
onto the Real Property and/or the Building after the date of execution of this
Lease by Landlord or any of Landlord's agents, employees, contractors or other
tenants in violation of applicable laws in effect at the date of introduction,
and were of such a nature that a federal, state or municipal governmental or
quasi-governmental authority, if it had then had knowledge of the presence of
such Hazardous Materials, in the state and under the conditions that the same
existed in the Building or on the Real Property, would have then required
removal, remediation or other action with respect to such Hazardous Materials;
6.2.4.6. costs of a capital nature for the Real Property,
except as specifically set forth in Section 6.2.3 above;
6.2.4.7. marketing costs including any sale/transfer/leasing
commissions, attorneys' fees in connection with the negotiation and preparation
of letters, deal memos, letters of intent, agreements, leases, subleases and/or
assignments, space planning costs, and other costs and expenses (other than tax
expenses) incurred in connection with sale/transfer/lease, sublease and/or
assignment negotiations and transactions with present or prospective purchasers,
tenants or other occupants of the Real Property; and
6.2.4.8. costs (including, without limitation, fines,
penalties, interest, and costs of repairs, replacements, alterations and/or
improvements) incurred in bringing the Real Property into compliance with
applicable laws (including the Americans with Disabilities Act) in effect as of
the date of execution of this Lease and as interpreted by applicable
governmental authorities as of such date, to the extent such violations exist as
of the date of execution of this Lease under any applicable laws in effect and
as interpreted by applicable governmental authorities as of such date.
6.3. Calculation and Payment of Operating Expenses.
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6.3.1. Calculation of Excess and Underage. If for any Expense Year
ending or commencing within the Lease Term, Tenant's Share of Operating Expenses
for such Expense Year exceeds Tenant's Share of Operating Expenses for the Base
Year, then Tenant shall pay to Landlord, in the manner set forth in Section
6.3.2, below, as additional rent, an amount equal to the excess (the "Excess").
6.3.2. Statement of Actual Operating Expenses and Payment by
Tenant. Landlord shall endeavor to give to Tenant on or before the first day of
April following the end of each Expense Year, a statement (the "Statement")
which shall state the Operating Expenses incurred or accrued for such preceding
Expense Year, and which shall indicate the amount, if any, of any Excess. Upon
receipt of the Statement for each Expense Year ending during the Lease Term, if
an Excess is present, Tenant shall pay, within twenty (20) days after receipt of
said Statement, the full amount of the Excess for such Expense Year, less the
amounts, if any, paid during such Expense Year as Estimated Excess (as defined
in Section 6.3.3 below). If any Statement reflects that Tenant has overpaid
Tenant's Share of Operating Expenses for such Expense Year, Landlord shall remit
to Tenant, within twenty (20) days after delivery of such applicable Statement,
the amount of the overpayment. The failure of Landlord to timely furnish the
Statement for any Expense Year shall not prejudice Landlord from enforcing its
rights under this Article 6. Even though the Lease Term has expired and Tenant
has vacated the Leased Premises, when the final determination is made of
Tenant's Share of the Operating Expenses for the Expense Year in which this
Lease terminates, if an Excess is present, Tenant shall immediately pay to
Landlord an amount as calculated pursuant to the provisions of Section 6.3.1 of
this Lease. The provisions of this Section 6.3.2 shall survive the expiration or
earlier termination of the Lease Term.
6.3.3. Statement of Estimated Operating Expenses. In addition,
Landlord shall endeavor to give Tenant a yearly expense estimate statement (the
"Estimate Statement") which shall set forth Landlord's reasonable estimate (the
"Estimate") of what the total amount of Operating Expenses for the then-current
Expense Year shall be and the estimated Excess (the "Estimated Excess") as
calculated by comparing Tenant's Share of Operating Expenses, which shall be
based upon the Estimate, to Tenant's Share of Operating Expenses for the Base
Year. The failure of Landlord to timely furnish the Estimate Statement for any
Expense Year shall not preclude Landlord from enforcing its rights to collect
any Estimated Excess under this Article 6. If pursuant to the Estimate Statement
an Estimated Excess is calculated for the then-current Expense Year, Tenant
shall pay, with its next installment of Base Rent due, a fraction of the
Estimated Excess for the then-current Expense Year (reduced by any amounts paid
pursuant to the last sentence of this Section 6.3.3). Such fraction shall have
as its numerator the number of months which have elapsed in such current Expense
Year to the month of such payment, both months inclusive, and shall have twelve
(12) as its denominator. Until a new Estimate Statement is furnished, Tenant
shall pay monthly, with the monthly Base Rent installments, an amount equal to
one-twelfth (1/12) of the total Estimated Excess set forth in the previous
Estimate Statement delivered by Landlord to Tenant.
7. UTILITIES AND SERVICES.
----------------------------
7.1. Standard Tenant Services. Landlord shall provide the
following services on all days during the Lease Term, unless otherwise stated
below.
7.1.1. Subject to reasonable changes implemented by Landlord and
to all governmental rules, regulations and guidelines applicable thereto,
Landlord shall provide heating and air conditioning when necessary for normal
comfort for normal office use in the Leased Premises, from Monday through
Friday, during the period from 7:00 a.m. to 6:00 p.m., and on Saturday during
the period from 7:00 a.m. to 1:00 p.m., except for the date of observation of
New Year's Day, Presidents' Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day, Christmas Day and other nationally recognized holidays
(collectively, the "Holidays").
7.1.2. Landlord shall provide adequate electrical wiring and
facilities and power for normal general office use for Building standard
lighting and standard office equipment, as determined by Landlord. Tenant shall
bear the cost of replacement of non-Building standard lamps, starters and
ballasts for lighting fixtures within the Leased Premises.
7.1.3. Landlord shall provide city water from the regular Building
outlets for drinking, lavatory and toilet purposes.
7.1.4. Landlord shall provide janitorial services five (5) days
per week, except the date of observation of the Holidays, in and about the
Leased Premises and window washing services in a manner consistent with other
comparable buildings in the vicinity of the Building.
7.1.5. Except when repairs or inspections are being made thereto,
and subject to such rules and regulations as established by Landlord from time
to time, Landlord shall provide nonexclusive automatic passenger elevator
service for use by Tenant, its customers and employees at all times.
7.2. Overstandard Tenant Use. Tenant shall not, without Landlord's
prior written consent, use heat-generating machines, machines other than normal
fractional horsepower office machines, or equipment or lighting other than
building standard lights in the Leased Premises, which may affect the
temperature otherwise maintained by the air conditioning system or increase the
water normally furnished for the Leased Premises by Landlord pursuant to the
terms of Section 7.1 of this Lease. If such consent is given, Landlord shall
have the right to install supplementary air conditioning units or other
facilities in the Leased Premises, including supplementary or additional
metering devices, and the cost thereof, including the cost of installation,
operation and maintenance, increased wear and tear on existing equipment and
other similar charges, shall be paid by Tenant to Landlord upon billing by
Landlord. If Tenant uses water or heat or air conditioning in excess of that
supplied by Landlord pursuant to Section 7.1 of this Lease, or if Tenant's
consumption of electricity shall exceed five (5) xxxxx connected load per square
foot of Rentable Area of the Leased Premises, calculated on an monthly basis for
the hours described in Section 7.1.1 above, Tenant shall pay to Landlord, upon
billing, the cost of such excess consumption, the cost of the installation,
operation, and maintenance of equipment which is installed in order to supply
such excess consumption, and the cost of the increased wear and tear on existing
equipment caused by such excess consumption; and Landlord may install devices to
separately meter any increased use and in such event Tenant shall pay the
increased cost directly to Landlord, on demand, including the cost of such
additional metering devices. If Tenant desires to use heat, ventilation or air
conditioning during hours other than those for which Landlord is obligated to
supply such utilities pursuant to the terms of Section 7.1 of this Lease, Tenant
shall give Landlord such prior notice, as Landlord shall from time to time
establish as appropriate, of Tenant's desired use and Landlord shall supply such
utilities to Tenant at such hourly cost to Tenant as Landlord shall from time to
time establish. Amounts payable by Tenant to Landlord for such use of additional
utilities shall be deemed additional rent hereunder and shall be billed on a
monthly basis.
7.3. Additional Services. Landlord shall also have the exclusive
right, but not the obligation, to provide any additional services which may be
required by Tenant, including, without limitation, locksmithing, non-Building
standard lamp replacement, additional janitorial service and additional repairs
and maintenance, provided that Tenant shall pay to Landlord upon billing, the
sum of all costs to Landlord of such additional services plus an administration
fee. Charges for any service for which Tenant is required to pay from time to
time hereunder, shall be deemed additional rent hereunder and shall be billed on
a monthly basis.
7.4. Interruption of Services. Subject to Section 7.5 below,
Landlord shall not be liable for any damage, loss or expense incurred by Tenant
by reason of any interruption or failure of the utilities and services. Landlord
may, with notice to Tenant, or without notice in case of emergency, cut off and
discontinue utilities and service when such discontinuance is necessary in order
to make repairs or alterations. No such action shall be construed as an eviction
or disturbance of possession by Landlord or relieve Tenant from paying Rent
(except as provided in Section 7.5 below) or performing any of its obligations
under this Lease.
7.5. Abatement of Rent When Tenant Is Prevented From Using Leased
Premises. In the event that Tenant is prevented from using, and does not use,
the Leased Premises or any portion thereof, for seven (7) consecutive business
days (the "Eligibility Period") as a result of Landlord's failure to provide to
the Leased Premises any of the essential utilities and services required to be
provided in Sections 7.1.1 and 7.1.2 above, then Tenant's obligation to pay Base
Rent and Operating Expenses shall be abated or reduced, as the case may be, from
and after the first (1st) day following the Eligibility Period and continuing
until such time that Tenant continues to be so prevented from using, and does
not use, the Leased Premises or a portion thereof, in the proportion that the
Rentable Area of the portion of the Leased Premises that Tenant is prevented
from using, and does not use, bears to the total Rentable Area of the Leased
Premises; provided, however, that Tenant shall only be entitled to such
abatement of rent if the matter described in this sentence is caused by
Landlord's negligence or willful misconduct. To the extent Tenant shall be
entitled to abatement of rent because of a damage or destruction pursuant to
Article 12 or a taking pursuant to Article 18, then the Eligibility Period shall
not be applicable. Notwithstanding anything to the contrary set forth in this
Lease, in the event that Tenant is prevented from using, and does not use, the
Leased Premises or any portion thereof, for one hundred eighty (180) consecutive
days as a result of the matters described above in this Section 7.5, then Tenant
shall have the right to terminate this Lease by delivering to Landlord written
termination notice within five (5) days after the end of such one hundred eighty
(180) day period; provided, however, Tenant shall not have such termination
right if any of such events described in this Section 7.5 are caused by a damage
or destruction pursuant to Article 12 or a taking pursuant to Article 18, as
Tenant's termination rights for such casualty and taking events are expressly
provided in and are governed by Articles 12 and 18 of this Lease, respectively.
8. MAINTENANCE AND REPAIRS.
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8.1. Tenant's Repairs. Subject to Landlord's repair obligations in
Section 8.2 below, and subject to Section 22.18 below, Tenant shall, at Tenant's
own expense, keep the Leased Premises, including all improvements, fixtures and
furnishings therein, in good order, repair and condition at all times during the
Lease Term. In addition, Tenant shall, at Tenant's own expense but under the
supervision and subject to the prior approval of Landlord, and within any
reasonable period of time specified by Landlord, promptly and adequately repair
all damage to the Leased Premises and replace or repair all damaged or broken
fixtures and appurtenances; provided however, that, at Landlord's option, or if
Tenant fails to make such repairs, Landlord may, but need not, make such repairs
and replacements, and Tenant shall pay Landlord the cost thereof, including a
percentage of the cost thereof (to be uniformly established for the Building)
sufficient to reimburse Landlord for all overhead, general conditions, fees and
other costs or expenses arising from Landlord's involvement with such repairs
and replacements forthwith upon being billed for same. Landlord may, but shall
not be required to, enter the Leased Premises at all reasonable times to make
such repairs, alterations, improvements and additions to the Leased Premises or
at the Building or to any equipment located in the Building as Landlord shall
desire or deem necessary or as Landlord may be required to do by governmental or
quasi-governmental authority or court order or decree.
8.2. Landlord's Repairs. Anything contained in Section 8.1 above
to the contrary notwithstanding, Landlord shall repair and maintain the
structural portions of the Building, including the basic plumbing, heating,
ventilating, air conditioning and electrical systems installed or furnished by
Landlord (but not including any non-base building facilities installed by or on
behalf of Tenant); provided, however, to the extent such maintenance and repairs
are caused in part or in whole by the act, neglect, fault of or omission of any
duty by Tenant, its agents, servants, employees or invitees, Tenant shall pay to
Landlord as additional rent, the reasonable cost of such maintenance and
repairs. Landlord shall not be liable for any failure to make any such repairs,
or to perform any maintenance unless such failure shall persist for an
unreasonable time after written notice of the need of such repairs or
maintenance is given to Landlord by Tenant. There shall be no abatement of rent
and no liability of Landlord by reason of any injury to or interference with
Tenant's business arising from the making of any repairs, alterations or
improvements in or to any portion of the Building or the Leased Premises or in
or to fixtures, appurtenances and equipment therein. Tenant hereby waives and
releases any right to make repairs at Landlord's expense under any law, statute
or ordinance now or hereafter in effect.
8.3. Notification to Landlord. Tenant agrees to promptly notify
Landlord or its representative of any accidents or defects in the Building of
which Tenant becomes aware, including defects in pipes, electrical wiring and
HVAC equipment. In addition, Tenant shall provide Landlord with prompt
notification of any matter or condition which may cause injury or damage to the
Building or any person or property therein.
8.4. Condition Upon Expiration of Lease. Upon the expiration of
the Lease Term, or any sooner termination, Tenant shall remove all of its
personal property, including, without limitation, any wiring or cabling
installed in the Leased Premises by on or behalf of Tenant, and any alterations
and improvements required to be removed pursuant to Section 9.2 below and
surrender the Leased Premises in good condition, ordinary wear and tear
excepted; provided, however, Tenant shall not be required to remove from the
Leased Premises pursuant to this Section 8.4 or Section 9.2 below the bank vault
existing in the Leased Premises as of date of execution of this Lease. Tenant
shall repair, at its expense, any damage to the Leased Premises occasioned by
its removal of any article of personal property, trade fixtures, furnishings,
signs, and improvements including but not limited to repairing the floor,
patching holes and painting walls.
9. ALTERATIONS AND ADDITIONS.
-------------------------------
9.1. Landlord's Consent Required. Tenant shall not make any
alterations or additions to the Leased Premises without first procuring
Landlord's written consent, which consent shall not be unreasonably withheld. In
no event, however, shall Tenant alter the exterior of the Leased Premises or
make any change or alteration which would impair the structural soundness of the
Building. Upon obtaining such consent, Tenant shall cause the work to be done
promptly and in good and workmanlike manner and in accordance with the plans and
specifications submitted to and approved by Landlord. Landlord's consent
notwithstanding, all work shall be performed in accordance with applicable
building codes and governmental regulations. All work done and materials
supplied shall be done or supplied only by contractors approved by Landlord, and
Landlord shall have the right to grant such approval conditionally or to
withdraw the same at any time. Landlord's approval thereunder shall create no
responsibility or liability on the part of Landlord for the completeness,
design, sufficiency or compliance with all laws, rules and regulations of
governmental agencies or authorities regarding the alterations. The construction
of the initial Tenant Improvements for the Leased Premises shall be governed by
the provisions of Exhibit D and not this Article 9. Any and all alterations or
additions to the Leased Premises to be performed by or on behalf of Tenant shall
be further subject to the provisions of Section 22.18 below.
9.2. Surrender at End of Lease Term. Any alterations, additions
and improvements made by Tenant on the Leased Premises, except Tenant's trade
fixtures, shall at once when made become property of Landlord and remain upon
and be surrendered with the Leased Premises at the expiration of the Lease Term,
unless prior to the termination date Landlord provides written notice to Tenant
to remove the same, in which case Tenant shall remove same on or before the
expiration of the Lease Term, and repair any damage resulting from such removal;
provided, however, Tenant shall not be required to remove from the Leased
Premises pursuant to this Section 9.2 or Section 8.4 above the bank vault
existing in the Leased Premises as of date of execution of this Lease.
9.3. Payment for Work. All costs of any such work shall be paid
promptly by Tenant so as to avoid the assertion of any mechanic's or
materialman's lien. Tenant shall discharge, by bonding, payment or other means,
any mechanic's lien filed against the Leased Premises or the Building within
thirty (30) days after the receipt of notice thereof, and shall promptly inform
Landlord of any such notice. If the lien is not discharged within said thirty
(30) day period, Landlord shall have the right, but not the obligation, to
discharge said lien by payment, bonding or otherwise, and the costs and expenses
to Landlord of obtaining such discharge shall be paid to Landlord by Tenant on
demand as additional rent. Whether or not Tenant orders any work directly from
Landlord, Tenant shall pay to Landlord a percentage of the cost of such work
(such percentage, which shall vary depending upon whether or not Tenant orders
the work directly from Landlord, to be established on a uniform basis for the
Building, but not to exceed five percent (5%) of the cost of the work)
sufficient to compensate Landlord for all overhead, general conditions, fees and
other costs and expenses arising from Landlord's involvement with such work.
9.4. Protection against Liens. At least five (5) days prior to the
commencement of any work on the Leased Premises, Tenant shall notify Landlord of
the names and addresses of the persons supplying labor and materials for the
proposed work so Landlord may avail itself of the provisions of statutes such as
Section 00-00-000 of the Colorado Revised Statutes. During the progress of any
such work on the Leased Premises, Landlord or its representatives shall have the
right to go upon and inspect the Leased Premises at all reasonable times, and
shall have the right to post and keep posted thereon notices such as those
provided for by CRS Section 00-00-000 or to take any further action which
Landlord may deem to be proper for the protection of Landlord's interest in the
Leased Premises.
9.5. Automated Teller Machine. The Original Tenant, and any
Affiliate to which Tenant's entire interest in this Lease has been assigned
pursuant to Section 15.7 below, shall have the exclusive right during the Lease
Term to install and use one (1) automated teller machine ("ATM") (and any
replacements of such ATM with any other banking safety and service equipment as
Tenant may deem desirable, subject to Landlord's prior approval, based on
subsequent technical and competitive developments); provided, however, in the
event Tenant fails to commence the functioning and service (allowing for
customer and non-customer use) of such ATM within one hundred eighty (180) days
following the Lease Commencement Date, or fails at any time during the Lease
Term to continously provide the funding and service of such ATM for more than
ninety (90) consecutive days, such right to use and install the ATM shall be on
a non-exclusive basis during the Lease Term. Tenant's right to install the ATM
shall be subject to and conditioned upon Tenant obtaining, at Tenant's sole cost
and expense, all required governmental approvals and Landlord's prior written
approval as to materials, design, exact location, quality and all other
specifications thereof (including Tenant's name and/or logo on such ATM). The
ATM shall be installed and maintained, at Tenant's sole cost and expense,
pursuant to an installation and maintenance program approved by Landlord. Upon
the expiration or early termination of this Lease, Tenant shall, at its sole
cost and expense, remove the ATM and return that portion of the Building and
Leased Premises to the same or substantially similar condition as existing
immediately prior to Tenant's installation of such ATM, reasonable wear and tear
excepted. If Tenant fails to remove such ATM and restore the Building and Leased
Premises as provided in this Section 9.5 within ten (10) days following the
expiration or early termination of this Lease, then Landlord may perform such
work, and all costs and expenses incurred by Landlord in so performing such work
shall be reimbursed by Tenant to Landlord within ten (10) days after Tenant's
receipt of invoice therefor.
10. INSURANCE.
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10.1. Tenant's Compliance with Landlord's Fire and Casualty
Insurance. Tenant shall, at Tenant's expense, comply as to the Leased Premises
with all insurance company requirements pertaining to the use of the Leased
Premises. If Tenant's conduct or use of the Leased Premises causes any increase
in the premium for such insurance policies, then Tenant shall reimburse Landlord
for any such increase. Tenant, at Tenant's expense, shall comply with all rules,
orders, regulations or requirements of the American Insurance Association
(formerly the National Board of Fire Underwriters) and with any similar body.
10.2. Tenant's Insurance. Tenant shall maintain the following
coverages in the following amounts.
10.2.1. Commercial General Liability Insurance covering the
insured against claims of bodily injury, personal injury and property damage
arising out of Tenant's operations, assumed liabilities or use of the Leased
Premises, including a Broad Form Commercial General Liability endorsement
covering the insuring provisions of this Lease and the performance by Tenant of
the indemnity agreements set forth in Article 11 of this Lease, (and with owned
and non-owned automobile liability coverage, and liquor liability coverage in
the event alcoholic beverages are served on the Leased Premises) for limits of
liability not less than:
Bodily Injury and $3,000,000 each occurrence
Property Damage Liability $3,000,000 annual aggregate
Personal Injury Liability $3,000,000 each occurrence
$3,000,000 annual aggregate
0% Insured's participation
10.2.2. Physical Damage Insurance covering (i) all office
furniture, trade fixtures, office equipment, merchandise and all other items of
Tenant's property on the Leased Premises installed by, for, or at the expense of
Tenant, (ii) the Tenant Improvements, including any Tenant Improvements which
Landlord permits to be installed above the ceiling of the Leased Premises or
below the floor of the Leased Premises, and (iii) all other improvements,
alterations and additions to the Leased Premises, including any improvements,
alterations or additions installed at Tenant's request above the ceiling of the
Leased Premises or below the floor of the Leased Premises. Such insurance shall
be written on an "all risks" of physical loss or damage basis, for the full
replacement cost value new without deduction for depreciation of the covered
items and in amounts that meet any co-insurance clauses of the policies of
insurance and shall include a vandalism and malicious mischief endorsement,
sprinkler leakage coverage and earthquake sprinkler leakage coverage.
10.2.3. Workers' compensation insurance as required by law.
10.2.4. Loss-of-income, business interruption and extra-expense
insurance in such amounts as will reimburse Tenant for direct and indirect loss
of earnings attributable to all perils commonly insured against by prudent
tenants or attributable to prevention of loss of access to the Leased Premises
or to the Building as a result of such perils.
10.2.5. Form of Policies. The minimum limits of policies of
insurance required of Tenant under this Lease shall in no event limit the
liability of Tenant under this Lease. Such insurance shall: (i) name Landlord,
Landlord's lenders, the lessors of a ground or underlying lease with respect to
the Real Property and any other party Landlord so specifies, as an additional
insured; (ii) specifically cover the liability assumed by Tenant under this
Lease, including, but not limited to, Tenant's obligations under Article 11 of
this Lease; (iii) be issued by an insurance company having a rating of not less
than A-X in Best's Insurance Guide or which is otherwise acceptable to Landlord
and licensed to do business in the state in which the Real Property is located;
(iv) be primary insurance as to all claims thereunder and provide that any
insurance carried by Landlord is excess and is non-contributing with any
insurance requirement of Tenant; (v) provide that said insurance shall not be
canceled or coverage changed unless thirty (30) days' prior written notice shall
have been given to Landlord and any mortgagee or ground or underlying lessor of
Landlord; (vi) contain a cross-liability endorsement or severability of interest
clause acceptable to Landlord; and (vii) with respect to the insurance required
in Sections 10.2.1, 10.2.2, 10.2.4 and 10.2.5 above, have deductible amounts not
exceeding $5,000.00. Tenant shall deliver said policy or policies or
certificates thereof to Landlord on or before the Lease Commencement Date and at
least thirty (30) days before the expiration dates thereof. If Tenant shall fail
to procure such insurance, or to deliver such policies or certificate, within
such time periods, Landlord may, at its option, in addition to all of its other
rights and remedies under this Lease, and without regard to any notice and cure
periods set forth in Section 16.1, procure such policies for the account of
Tenant, and the cost thereof shall be paid to Landlord as Additional Rent within
ten (10) days after delivery of bills therefor.
10.3. Subrogation. Landlord and Tenant agree to have their
respective insurance companies issuing property damage insurance waive any
rights of subrogation that such companies may have against Landlord or Tenant,
as the case may be. Landlord and Tenant hereby waive any right that either may
have against the other on account of any loss or damage to their respective
property to the extent such loss or damage is insurable under policies of
insurance for fire and all risk coverage, theft, public liability, or other
similar insurance.
10.4. Additional Insurance Obligations. Tenant shall carry and
maintain during the entire Lease Term, at Tenant's sole cost and expense,
increased amounts of the insurance required to be carried by Tenant pursuant to
this Article 10, and such other reasonable types of insurance coverage and in
such reasonable amounts covering the Leased Premises and Tenant's operations
therein, as may be reasonably requested by Landlord.
11. INDEMNITY.
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11.1. Indemnification of Landlord. Tenant shall indemnify and hold
Landlord harmless from and against any and all losses, claims and damages
arising from Tenant's use of the Leased Premises or the conduct of its business
or from any activity, work or thing done, permitted or suffered by Tenant in or
about the Leased Premises, and shall further indemnify and hold Landlord
harmless from and against any and all claims arising from any breach or default
in the performance of any obligation on Tenant's part to be performed under the
terms of this Lease, or arising from any act or negligence of Tenant or any of
its agents, contractors or employees, and from and against all costs, attorney's
fees, expenses and liabilities incurred in or about any such claim or any action
or proceeding brought thereon; and in case any action or proceeding be brought
against Landlord by reason of any such claim, Tenant, upon notice from Landlord,
shall defend the same at Tenant's expense by counsel reasonably satisfactory to
Landlord. Tenant, as a material part of the consideration to Landlord, hereby
assumes all risks of damage to property or injury to persons in, upon or about
the Leased Premises; provided, however, that the foregoing assumption of risk
shall not apply to damage or injury to the extent resulting from Landlord's
negligence or willful misconduct and not insured or required to be insured by
Tenant hereunder.
11.2. Limitation of Liability. Landlord shall not be liable for
injury or damage which may be sustained by the person, goods, wares, merchandise
or property of Tenant, its employees, invitees or customers, or any other person
in or about the Leased Premises caused by or resulting from fire, steam,
electricity, gas or water, which may leak or flow from or into any part of the
Leased Premises, or from breakage, leakage, obstruction or other defects of the
pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting
fixtures of the same, whether the said damage or injury results from conditions
arising upon the Leased Premises or upon other portions of the Building of which
the Leased Premises are a part, or from other sources; provided, however, that
the foregoing limitation on Landlord's liability shall not apply to injury or
damage to the extent resulting from Landlord's negligence or willful misconduct
and not insured or required to be insured by Tenant hereunder. Landlord shall
not be liable for any damages arising from any act or neglect of any other
tenant of the Building. In no event shall Landlord be liable for consequential
damages.
12. DAMAGE, DESTRUCTION AND BUSINESS INTERRUPTION.
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12.1. Repair of Damage to Leased Premises by Landlord. Tenant
shall promptly notify Landlord of any damage to the Leased Premises resulting
from fire or any other casualty. If the Leased Premises or any Common Areas of
the Building serving or providing access to the Leased Premises shall be damaged
by fire or other casualty, Landlord shall promptly and diligently, subject to
reasonable delays for insurance adjustment or other matters beyond Landlord's
reasonable control, and subject to all other terms of this Article 12, restore
the structural components of the Leased Premises and such Common Areas. Such
restoration shall be to substantially the same condition of the structural
components of the Leased Premises and Common Areas prior to the casualty, except
for modifications required by zoning and building codes and other laws or by the
holder of a mortgage on the Building, or the lessor of a ground or underlying
lease with respect to the Real Property and/or the Building, or any other
modifications to the Common Areas deemed desirable by Landlord, provided access
to the Leased Premises and any common restrooms serving the Leased Premises
shall not be materially impaired. Notwithstanding any other provision of this
Lease, upon the occurrence of any damage to the Leased Premises, Tenant shall
assign to Landlord (or to any party designated by Landlord) all insurance
proceeds payable to Tenant under Tenant's insurance required under Section 10.2
above pertaining to all tenant improvements and alterations in the Leased
Premises (but not Tenant's personal property), and Landlord shall repair any
injury or damage to the tenant improvements and alterations installed in the
Leased Premises and shall return such tenant improvements and alterations to
their original condition; provided that if the cost of such repair of such
tenant improvements and alterations by Landlord exceeds the amount of insurance
proceeds therefor received by Landlord from Landlord's insurance obtained as
part of Operating Expenses and from Tenant's insurance carrier, as assigned by
Tenant, the cost of such repairs shall be paid by Tenant to Landlord prior to
Landlord's repair of the damage. In connection with such repairs and
replacements, Tenant shall, prior to the commencement of construction, submit to
Landlord, for Landlord's review and approval, all plans, specifications and
working drawings relating thereto, and Landlord shall select the contractors to
perform such improvement work. Landlord shall not be liable for any
inconvenience or annoyance to Tenant or its visitors, or injury to Tenant's
business resulting in any way from such damage or the repair thereof; provided
however, that if such fire or other casualty shall have damaged the Leased
Premises or Common Areas necessary to Tenant's occupancy, and if such damage is
not the result of the negligence or willful misconduct of Tenant or Tenant's
employees, contractors, licensees, or invitees, Landlord shall allow Tenant a
proportionate abatement of Base Rent and Tenant's proportionate share of
Operating Expenses to the extent Landlord is reimbursed from the proceeds of
rental interruption insurance purchased by Landlord as part of Operating
Expenses, during the time and to the extent the Leased Premises are unfit for
occupancy for the purposes permitted under this Lease, and not occupied and used
by Tenant as a result thereof.
12.2. Landlord's Option to Repair. Within sixty (60) days after
Landlord becomes aware of such damage, Landlord shall notify Tenant in writing
("Landlord's Damage Notice") of the estimated time, in Landlord's reasonable
judgment, required to substantially complete the repairs of such damage (the
"Estimated Repair Period"). Notwithstanding the terms of Section 12.1 of this
Lease, Landlord may elect not to rebuild and/or restore the Leased Premises
and/or Building and instead terminate this Lease by notifying Tenant in writing
of such termination within sixty (60) days after Landlord becomes aware of such
damage, such notice to include a termination date giving Tenant up to ninety
(90) days to vacate the Leased Premises, but Landlord may so elect only if the
Building shall be damaged by fire or other casualty or cause, whether or not the
Leased Premises are affected, and one or more of the following conditions is
present: (i) repairs cannot reasonably be completed within one hundred eighty
(180) days of the date of damage (when such repairs are made without the payment
of overtime or other premiums); (ii) the holder of any mortgage on the Building
or ground or underlying lessor with respect to the Real Property and/or the
Building shall require that the insurance proceeds or any portion thereof be
used to retire the mortgage debt, or shall terminate the ground or underlying
lease, as the case may be; or (iii) the damage is not fully covered by
Landlord's insurance policies; provided, however, that (A) if Landlord does not
elect to terminate this Lease pursuant to Landlord's termination right as
provided above, (B) the damage constitutes a Tenant Damage Event (as defined
below), and (C) the repair of such damage cannot, in the reasonable opinion of
Landlord, as set forth in Landlord's Damage Notice, be completed within one
hundred eighty (180) days after the date of the damage, then Tenant may elect to
terminate this Lease by delivering written notice thereof to Landlord within
fifteen (15) days after Tenant's receipt of Landlord's Damage Notice, which
termination shall be effective as of the date of Tenant's termination notice. As
used herein, a "Tenant Damage Event" shall mean damage to all or any part of the
Leased Premises or any common areas of the Building providing access to the
Leased Premises by fire or other casualty, which damage is not the result of the
negligence or willful misconduct of Tenant or any of Tenant's employees, agents,
contractors or licensees, and which damage substantially interferes with
Tenant's use of or access to the Leased Premises and would entitle Tenant to an
abatement of Rent pursuant to Section 12.1 above. In addition, in the event that
the Leased Premises or the Building is destroyed or damaged to any substantial
extent during the last twelve (12) months of the Lease Term, then
notwithstanding anything contained in this Article 12, Landlord shall have the
option to terminate this Lease, and to the extent such destruction or damage
constitutes a Tenant Damage Event and the repair of same is reasonably expected
by Landlord to require more than sixty (60) days to complete, Tenant shall have
the option to terminate this Lease, by giving written termination notice to the
other party of the exercise of such option within thirty (30) days after the
date of such damage or destruction. Upon any such termination of this Lease
pursuant to this Section 12.2, Tenant shall pay the Base Rent and additional
rent, properly apportioned up to such date of termination (but subject to any
abatement as provided in Section 12.1 above), and both parties hereto shall
thereafter be freed and discharged of all further obligations hereunder, except
as provided for in provisions of this Lease which by their terms survive the
expiration or earlier termination of the Lease Term.
12.3. Waiver of Statutory Provisions. The provisions of this
Lease, including this Article 12, constitute an express agreement between
Landlord and Tenant with respect to any and all damage to, or destruction of,
all or any part of the Leased Premises, the Building or any other portion of the
Real Property, and any statute or regulation of the state in which the Building
is located, with respect to any rights or obligations concerning damage or
destruction in the absence of an express agreement between the parties, and any
other statute or regulation, now or hereafter in effect, shall have no
application to this Lease or any damage or destruction to all or any part of the
Leased Premises, the Building or any other portion of the Real Property.
12.4. Tenant's Responsibilities. There shall be no abatement of
rent (except as expressly provided above in Section 12.1) and no liability of
Landlord by reason of any injury to or interference with Tenant's business or
property arising from the making of any repairs, alterations or improvements in
or to any portion of the Building or the Leased Premises or in or to fixtures,
appurtenances and equipment therein. Tenant understands Landlord will not carry
insurance of any kind on Tenant's furniture, furnishings and other personal
property, and Landlord shall not be obligated to repair any damage thereto or
replace the same. All such property shall be kept, stored and maintained at the
sole risk of Tenant.
13. TENANT TAXES.
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13.1. Personal Property. Tenant shall pay, prior to delinquency,
all taxes, assessments, license fees and public charges levied, assessed or
imposed upon or measured by the value of Tenant's business operation, and/or the
cost or value of any furniture, fixtures, equipment and other personal property
of Tenant at any time situated upon or in the Leased Premises. Tenant shall
cause all such personal property to be assessed and billed separately from the
real property of Landlord.
13.2. Other Taxes for Which Tenant Is Directly Responsible. In
addition, Tenant shall reimburse Landlord upon demand for any and all taxes or
assessments required to be paid by Landlord, excluding state, local and federal
personal or corporate income taxes measured by the net income of Landlord from
all sources and estate and inheritance taxes, whether or not now customary or
within the contemplation of the parties hereto, when:
13.2.1. Said taxes are measured by or reasonably attributable
to the cost or value of any leasehold improvements made in or to the Leased
Premises by or for Tenant, to the extent the cost or value of such leasehold
improvements exceeds the cost or value of a building standard build-out as
determined by Landlord regardless of whether title to such improvements shall be
vested in Tenant or Landlord;
13.2.2. Said taxes are assessed upon or with respect to the
possession, leasing, operation, management, maintenance, alteration, repair, use
or occupancy by Tenant of the Leased Premises or any portion of the Real
Property;
13.2.3. Said taxes are assessed upon this transaction or any
document to which Tenant is a party creating or transferring an interest or an
estate in the Leased Premises; or
13.2.4. Said assessments are levied or assessed upon the Real
Property or any part thereof or upon Landlord and/or by any governmental
authority or entity, and relate to the construction, operation, management, use,
alteration or repair of mass transit improvements.
13.3. Increase in Taxes. If at any time during the Lease Term any
of Tenant's property is assessed as a part of the Leased Premises, or if the
assessed value of Landlord's property is increased by the inclusion therein of a
value placed on Tenant's property or other improvements made by Tenant, Tenant
shall pay to Landlord upon demand, as additional rent, the amount of any such
additional taxes as may be levied against the Building or Real Property by
reason thereof.
14. COMMON AREAS.
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14.1. Definition. The term "Common Areas" means all areas and
facilities outside the Leased Premises provided and designated for the common
use and convenience of Tenant and other tenants of the Building, their
respective officers, agents, employees, customers and invitees. Common Areas
include, but are not limited to, corridors, lobbies, pedestrian sidewalks,
stairways, landscaped areas, restrooms on multi-tenant floors, elevators and
shipping and receiving areas of the Building.
14.2. Maintenance. Landlord agrees to maintain, operate and repair
(or cause others to do so) all Common Areas consistent with the character of the
Building as a first-class office building and to keep same in clean and sightly
condition during the Lease Term. The manner in which such areas and facilities
shall be maintained and the expenditures therefor shall be at the discretion of
Landlord and as to all such Common Areas Landlord shall have the right to adopt
and promulgate reasonable rules and regulations from time to time generally
applicable to tenants and occupants of the Building and their employees and
business invitees. For the purpose of maintenance and repair, or to avoid an
involuntary taking, Landlord may temporarily close portions of the Common Areas,
and such actions shall not be deemed an eviction of Tenant or a disturbance of
Tenant's use of the Leased Premises.
14.3. Tenant's Rights and Obligations. Landlord grants to Tenant,
during the Lease Term, the license to use, for the benefit of Tenant and its
officers, agents, employees, customers and invitees, in common with others
entitled to such use, the Common Areas as they from time to time exist, subject
to the rights and privileges of Landlord herein reserved. Tenant shall not at
any time interfere with the rights of Landlord and others entitled to use any
part of the Common Areas, and shall not store, permanently or temporarily, any
materials, supplies or equipment in the Common Areas.
14.4. Changes to Common Area. Landlord shall have the right at any
time during the Lease Term to change, alter, remodel, reduce, expand or improve
the Common Areas, elevators, drains, pipes, heating and air conditioning
apparatus or any other part of the Building, except the Leased Premises, without
compensation to Tenant. For such purposes, Landlord or its agents or employees
may, if necessary, enter, pass through and work upon the Leased Premises;
provided Landlord shall carry out such work diligently and reasonably and
provide Tenant with at least 24 hours' prior notice of any such entry into the
Leased Premises (except no such notice shall be required in cases of emergency).
If there is a change in the area of the Common Areas as a result of any of the
foregoing, Landlord shall cause adjustments in the computation of Operating
Expenses as shall be necessary to provide for any such changes.
15. ASSIGNMENT AND SUBLETTING.
--------------------------------
15.1. Transfers. Subject to Section 15.7 below, Tenant shall not,
without the prior written consent of Landlord, voluntarily or by operation of
law, assign, sublet, encumber or transfer all or any part of Tenant's interest
in this Lease or in the Leased Premises or permit any part of the Leased
Premises to be used or occupied by any person other than Tenant, its employees,
customers and others having lawful business with Tenant (all of the foregoing
are hereinafter sometimes referred to collectively as "Transfers" and any person
or entity to whom any Transfer is made or sought to be made is hereinafter
sometimes referred to as a "Transferee"). If Tenant shall desire Landlord's
consent to any Transfer, Tenant shall notify Landlord in writing, which notice
(the "Transfer Notice") shall include (i) the proposed effective date of the
Transfer, which shall not be less than forty-five (45) days nor more than one
hundred eighty (180) days after the date of delivery of the Transfer Notice,
(ii) a description of the portion of the Leased Premises to be transferred (the
"Subject Space"), (iii) all of the terms of the proposed Transfer and the
consideration thereof, including a calculation of the "Profit Rental," as that
term is defined in Section 15.4 below, in connection with such Transfer, the
name and address of the proposed Transferee, and a copy of all existing
operative documents to be executed to evidence such Transfer or the agreements
incidental or related to such Transfer, and (iv) current financial statements
pertaining to the proposed Transferee certified by an officer, partner or owner
thereof, and any other information required by Landlord, which will enable
Landlord to determine the financial responsibility, character, and reputation of
the proposed Transferee, nature of such Transferee's business and proposed use
of the Subject Space, and such other information as Landlord may reasonably
require. Each time Tenant requests Landlord's consent to a proposed Transfer,
whether or not Landlord shall grant consent, within thirty (30) days after
written request by Landlord, as Additional Rent hereunder, Tenant shall pay to
Landlord Five Hundred Dollars ($500.00) for Landlord's review and processing
fees, and, in addition, Tenant shall reimburse Landlord for any reasonable legal
fees incurred by Landlord in connection with Tenant's proposed Transfer. Any
attempted Transfer made without Landlord's prior consent shall be wholly void
and shall constitute a breach of this Lease.
15.2. Landlord's Consent. Landlord shall not unreasonably withhold
its consent to any proposed Transfer of the Subject Space to the Transferee on
the terms specified in the Transfer Notice. The parties hereby agree that it
shall be reasonable under this Lease and under any applicable law for Landlord
to withhold consent to any proposed Transfer where one or more of the following
apply, without limitation as to other reasonable grounds for withholding
consent:
(i) The Transferee is of a character or reputation or engaged in
business which is not consistent with the quality of the Building;
(ii) The Transferee intends to use the Subject Space for purposes
which are not permitted under this Lease;
(iii) The Transferee is either a governmental agency or
instrumentality thereof;
(iv) The Transfer will result in more than a reasonable and safe
number of occupants per floor within the Subject Space;
(v) The Transferee is not a party of reasonable financial worth
and/or financial stability in light of the responsibilities involved under the
Lease on the date consent is requested;
(vi) The proposed Transfer would cause Landlord to be in violation
of another lease or agreement to which Landlord is a party, or would give an
occupant of the Building a right to cancel its lease;
(vii) The terms of the proposed Transfer will allow the Transferee
to exercise a right of renewal, right of expansion, right of first offer, or
other similar right held by Tenant (or will allow the Transferee to occupy space
leased by Tenant pursuant to any such right); or
(viii) Either the proposed Transferee, or any person or entity
which directly or indirectly, controls, is controlled by, or is under common
control with, the proposed Transferee, (A) occupies space in the Building at the
time of the request for consent (B) is negotiating with Landlord to lease space
in the Building at such time, or (C) has negotiated with Landlord during the
twelve (12)-month period immediately preceding the Transfer Notice.
If Landlord consents to any Transfer pursuant to the terms of this
Section 15.2, Tenant may within six (6) months after Landlord's consent, but not
later than the expiration of said six-month period, enter into such Transfer of
the Leased Premises or portion thereof, upon substantially the same terms and
conditions as are set forth in the Transfer Notice furnished by Tenant to
Landlord pursuant to Section 15.1 of this Lease, provided that if there are any
changes in the terms and conditions from those specified in the Transfer Notice
(A) such that Landlord would initially have been entitled to refuse its consent
to such Transfer under this Section 15.2, or (B) which would cause the proposed
Transfer to be more favorable to the Transferee than the terms set forth in
Tenant's original Transfer Notice, Tenant shall again submit the Transfer to
Landlord for its approval and other action under this Article 15.
15.3. Intentionally Deleted.
------------------------------
15.4. Limitation on Profit Rental. In the event Tenant enters into
a Transfer, Tenant shall pay to Landlord fifty percent (50%) of the Profit
Rental, if any, received from the Transferee, as it is received. "Profit Rental"
shall be calculated by deducting from the amount received by Tenant from the
Transferee on account of the Transfer, the sum of (i) the amounts payable to
Landlord by Tenant pursuant to this Lease for the Subject Space which has been
Transferred ,and (ii) the reasonable, actual and out-of-pocket expenses incurred
by Tenant for (A) any changes, alterations and improvements to the Leased
Premises in connection with the Transfer (and any planning and improvement
allowances provided by Tenant to the Transferee in connection therewith), and
(B) attorneys' fees, brokerage commissions and advertising expenses in
connection with the Transfer.
15.5. Continuing Obligations. No Transfer, even with Landlord's
consent, shall relieve Tenant of its obligations to pay the Rent and to perform
all of the other obligations to be performed by Tenant under this Lease. The
acceptance of Rent by Landlord from any other person shall not be deemed to be a
waiver by Landlord of any provision of this Lease or to be a consent to any
subsequent Transfer.
15.6. Corporations and Partnerships. Subject to Section 15.7
below, a sale by Tenant of all or substantially all of its assets shall
constitute a Transfer for purposes of this Lease. Subject to Section 15.7 below,
if Tenant is a corporation, then any assignment or transfer of this Lease by
merger, consolidation or liquidation, or any change in ownership of or power to
vote of a majority of its outstanding voting stock shall, in Landlord's
reasonable discretion, constitute a Transfer for purposes of this Lease. Subject
to Section 15.7 below, if Tenant is a partnership, then any change in the
identity of the general partners having an aggregate interest in the partnership
exceeding fifty percent (50%) shall, in Landlord's reasonable discretion,
constitute a Transfer for purposes of this Lease.
15.7. Affiliated Companies/Restructuring of Business Organization.
The assignment or subletting by Tenant of all or any portion of this Lease or
the Leased Premises to (i) a parent or subsidiary of Tenant, or (ii) any person
or entity which controls, is controlled by or under common control with Tenant,
or (iii) any entity which purchases all or substantially all of the assets of
Tenant, or (iv) any entity into which Tenant is merged or consolidated (all such
persons or entities described in (i), (ii), (iii) and (iv) being sometimes
hereinafter referred to as "Affiliates") shall not be deemed a Transfer under
this Article 15, provided that:
15.7.1. Any such Affiliate was not formed as a subterfuge to avoid
the obligations of this Article 15;
15.7.2. Tenant gives Landlord prior notice of any such assignment
or sublease to an Affiliate;
15.7.3. Any such Affiliate has, as of the effective date of any
such assignment or sublease, a tangible net worth, computed in accordance with
generally accepted accounting principles (but excluding goodwill as an asset),
which is equal to or greater than Tenant as of the date of execution of this
Lease and sufficient to meet the obligations of Tenant under the assignment or
sublease;
15.7.4. Any such assignment or sublease shall be subject to all of
the terms and provisions of this Lease, and such assignee or sublessee shall
assume, in a written document reasonably satisfactory to Landlord and delivered
to Landlord upon or prior to the effective date of such assignment or sublease,
all the obligations of Tenant under this Lease; and
15.7.5. Tenant and any guarantor shall remain fully liable for all
obligations to be performed by Tenant under this Lease.
16. TENANT'S DEFAULT.
-----------------------
16.1. Definition. The occurrence of any of the following shall
constitute a default and breach of this Lease by Tenant:
16.1.1. Any failure by Tenant to pay when due any Rent or any
other monetary sums required to be paid thereunder.
16.1.2. The abandonment or vacation of the Leased Premises.
16.1.3. Any failure by Tenant to observe or perform any provision,
covenant, or condition set forth in Articles 5 or 15 hereof.
16.1.4. Any failure by Tenant to observe and perform any other
provisions of this Lease to be observed or performed by Tenant within fifteen
(15) days after notice thereof has been provided to Tenant by Landlord, or if
performance is not possible within said period, any failure of Tenant to
commence performance within said period and to diligently prosecute such
performance to completion.
16.1.5. Intentionally creating or permitting to be created a
nuisance which shall not be abated within five (5) days after written notice
thereof from Landlord.
16.1.6. If Tenant, or any guarantor of Tenant's obligations under
this Lease ("Guarantor"), admits in writing that it cannot meet its obligations
as they become due; or is declared insolvent according to any law; or assignment
of Tenant's or Guarantor's property is made for the benefit of creditors; or a
receiver or trustee is appointed for Tenant or Guarantor or its property; or the
interest of Tenant or Guarantor under this Lease is levied on under execution or
other legal process; or any petition is filed by or against Tenant or Guarantor
to declare Tenant bankrupt or to delay, reduce or modify Tenant's debts or
obligations; or any petition is filed or other action taken to reorganize or
modify Tenant's or Guarantor's capital structure, if Tenant or Guarantor is a
corporation or other entity; any such levy, execution, legal process or petition
filed against Tenant or Guarantor shall not constitute a breach of this Lease
provided Tenant or Guarantor shall vigorously contest the same by appropriate
proceedings and shall remove or vacate the same within sixty (60) days from the
date of its creation, service or filing.
16.1.7. The taking of this Lease or Tenant's interest therein
under writ of execution.
16.2. Interest on Unpaid Sums. If any Rent, or any other monetary
sum required to be paid thereunder by Tenant to Landlord, is not paid when due,
such sum shall accrue interest from the date due until received at the rate
which is the lower of (i) the Interest Rate set forth in Section 6.2.3.4 above
or (ii) the highest rate permitted by applicable law.
16.3. Remedies. In the event of any such default or breach by
Tenant, Landlord may at any time thereafter, without limiting Landlord in the
exercise of any other right or remedy which Landlord may have:
16.3.1. Without terminating this Lease, reenter and attempt to
relet or take possession pursuant to legal proceedings and remove all persons
and property from the Leased Premises. In such event, Landlord may, from time to
time, make such alterations and repairs as may be necessary in order to relet
the Leased Premises or any part thereof for such term or terms (which may be for
a term extending beyond the Lease Term) and at such rental or rentals and upon
such other terms and conditions as Landlord, in its sole discretion, may deem
advisable. Upon each such reletting, all rentals received by Landlord from such
reletting shall be applied: first, to the payment of any costs and expenses of
such reletting, including brokerage fees and attorney's fees; second, to the
payment of any indebtedness other than Rent due thereunder from Tenant to
Landlord; third, to the payment of Rent due and unpaid thereunder; and the
residue, if any, shall be held by Landlord and applied to payment of future rent
as the same may become due and payable thereunder. If such rentals received from
such reletting during any month be less than that to be paid during that month
by Tenant thereunder, Tenant shall pay any such deficiency to Landlord. Such
deficiency shall be calculated and paid monthly. In no event shall Tenant be
entitled to any excess of any rental obtained by reletting over and above the
Rent herein reserved. Actions to collect amounts due by Tenant to Landlord as
provided in this Section may be brought from time to time, on one or more
occasions, without the necessity of Landlord's waiting until expiration of the
Lease Term. No such reentry or taking possession of the Leased Premises by
Landlord in accordance with this Lease shall be construed as an election on its
part to terminate this Lease unless a notice of such intention be given to
Tenant or unless the termination thereof be decreed by a court of competent
jurisdiction. Notwithstanding any such reletting without termination, Landlord
may at any time thereafter elect in writing to terminate this Lease for such
previous breach. No such alteration of locks or other security devices and no
removal or other exercise of dominion by Landlord over Tenant's Property or
others at the Leased Premises shall be deemed unauthorized or constitute a
conversion of the Leased Premises or the property of Tenant therein or
termination of the Lease, Tenant hereby consenting, after any Tenant default, to
the aforesaid exercise of dominion over Tenant's property within the Leased
Premises. All claims for damages by reason of such reentry and/or repossession
and/or alteration of locks or other security devices are hereby waived, as are
all claims for damages by reason of any distress warrant, forcible detainer
proceedings, sequestration proceedings or other legal process. Tenant agrees
that any reentry by Landlord may be pursuant to judgment obtained in forcible
detainer proceedings or other legal proceedings or without the necessity for any
legal proceedings to the extent permitted by applicable laws, as Landlord may
elect, and Landlord shall not be liable in trespass or otherwise.
16.3.2. [Intentionally Deleted].
16.3.3. Terminate this Lease and Tenant's right to possession, in
which case Tenant shall immediately surrender possession. In addition to any
other remedies which Landlord may have, it shall have the right to recover from
Tenant (a) the amount equal to any unpaid rent which has been earned at the time
of such termination; (b) as liquidated damages for loss of bargain, and not as a
penalty, an amount equal to the excess, if any, of the aggregate amount of Rent
and other charges which are Tenant's obligation to pay under this Lease for the
remainder of the stated term over the aggregate of the then reasonable rental
value of the Leased Premises under a lease substantially similar to this Lease
for the remainder of the stated term, all of which amounts shall be discounted
to present value at the passbook savings rate of U.S. Bank, a national banking
association, or its successor, then in effect and shall be immediately due and
payable; and (c) all other damages and expenses which Landlord has sustained
because of Tenant's default, including reasonable attorney's fees, the cost of
recovering the Leased Premises, brokerage commissions and advertising expenses
incurred, and expenses of remodeling the Leased Premises or any portion thereof
for a new tenant, whether for the same or a different use and any special
concessions made to obtain a new tenant.
16.3.4. If Tenant should fail to make any payment or cure any
default hereunder within the time herein permitted, Landlord, without being
under any obligation to do so and without thereby waiving such default, may make
such payment and/or remedy such other default for the account of Tenant (and
enter the Leased Premises for such purpose), and thereupon Tenant shall be
obligated to, and hereby agrees, to pay Landlord, upon demand, all costs,
expenses and disbursements (including reasonable attorneys' fees) incurred by
Landlord in taking such remedial action as additional rent.
16.3.5. No receipt of money by Landlord from Tenant after the
termination of this Lease as herein provided shall reinstate, continue or extend
the Lease Term or operate as a waiver of the right of Landlord to enforce the
payment of Rent or other money when due by Tenant, or operate as a waiver of the
right of Landlord to recover possession of the Leased Premises by proper remedy.
16.3.6. In addition to any other remedies Landlord may have at law
or equity and/or under this Lease, Tenant shall pay upon demand all Landlord's
costs, charges and expenses, including fees of counsel, agents and others
retained by Landlord, whether or not suit is filed, incurred in connection with
the recovery under this Lease or for any other relief against Tenant. In the
event Landlord or Tenant shall bring any action against the other, the losing
party shall pay the successful party's reasonable attorneys fees and court
costs.
16.3.7. All covenants and agreements to be kept or performed by
Tenant under this Lease shall be performed by Tenant at Tenant's sole cost and
expense and without any reduction of Rent. If Tenant shall fail to perform any
of its obligations under this Lease, within a reasonable time after such
performance is required by the terms of this Lease, Landlord may, but shall not
be obligated to, after reasonable prior notice to Tenant, make any such payment
or perform any such act on Tenant's part without waiving its right based upon
any default of Tenant and without releasing Tenant from any obligations
hereunder.
16.3.8. Except as may be specifically provided to the contrary in
this Lease, Tenant shall pay to Landlord, within fifteen (15) days after
delivery by Landlord to Tenant of statements therefor: (i) sums equal to
expenditures reasonably made and obligations incurred by Landlord in connection
with the remedying by Landlord of Tenant's defaults pursuant to the provisions
of this Section 16; (ii) sums equal to all losses, costs, liabilities, damages
and expenses referred to in Article 10 of this Lease; and (iii) sums equal to
all expenditures made and obligations incurred by Landlord in collecting or
attempting to collect the Rent or in enforcing or attempting to enforce any
rights of Landlord under this Lease or pursuant to law, including, without
limitation, all legal fees and other amounts so expended. Tenant's obligations
under this Section 16.3.7 shall survive the expiration or sooner termination of
the Lease Term.
16.4. Late Charges. Tenant hereby acknowledges late payment by
Tenant to Landlord of Rent and other sums due thereunder will cause Landlord to
incur costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges and late charges which may be imposed on
Landlord by the terms of any mortgage or trust deed covering the Leased
Premises. Accordingly, if any Rent or any other sum due from Tenant shall not be
received by Landlord or Landlord's designee when due, Tenant shall pay to
Landlord a late charge equal to five percent (5%) of such overdue amount. The
parties hereby agree such late charge represents a fair and reasonable estimate
of the cost Landlord will incur by reason of late payment by Tenant. Acceptance
of such late charge by Landlord shall in no event constitute a waiver of
Tenant's default with respect to such overdue amount nor prevent Landlord from
exercising any of the other rights and remedies granted thereunder.
17. LANDLORD'S DEFAULT.
-------------------------
17.1. Notice to Landlord. Landlord shall in no event be charged
with default in the performance of any of its obligations hereunder unless and
until Landlord shall have failed to perform such obligations within thirty (30)
days (or within such additional time as is reasonably required to correct any
such default) after notice to Landlord by Tenant properly specifying wherein
Landlord has failed to perform any such obligations.
17.2. Notice to Mortgagee. If the holder of record of the first
mortgage covering the Leased Premises shall have given prior notice to Tenant
that it is the holder of the first mortgage and such notice includes the address
at which notices to such mortgagee are to be sent, then Tenant shall give to the
holder of record of such first mortgage notice simultaneously with any notice
given to Landlord to correct any default of Landlord as hereinabove provided.
The holder of record of such first mortgage shall have the right, within thirty
(30) days after receipt of said notice (or within such additional time as is
reasonably required to correct any such default including time to obtain
possession of the Leased Premises by foreclosure or other means) before Tenant
may take any action under this Lease by reason of such default. Any notice of
default given Landlord shall be null and void unless simultaneous notice has
been given to said first mortgagee.
17.3. Landlord's Exculpation. It is expressly understood and
agreed that notwithstanding anything in this Lease to the contrary, and
notwithstanding any applicable law to the contrary, the liability of Landlord
(including any successor Landlord) and any recourse by Tenant against Landlord
shall be limited solely and exclusively to an amount which is equal to the
interest of Landlord in the Building and Real Property, and neither Landlord,
nor any of Landlord's officers, members or partners nor their respective
officers, agents, directors or employees shall have any personal liability
therefor, and Tenant hereby expressly waives and releases such personal
liability on behalf of itself and all persons claiming by, through or under
Tenant.
18. CONDEMNATION.
-------------------
18.1. Effect of Taking. If the Leased Premises or any portion
thereof are taken under the power of eminent domain, or sold by Landlord under
the threat of the exercise of said power (all of which is herein referred to as
"condemnation"), this Lease shall terminate as to the part so taken as of the
date the condemning authority takes title or possession, whichever occurs first.
If more than twenty-five percent (25%) of the floor area of the Leased Premises
is taken by condemnation, Tenant may, at its option, terminate this Lease as of
the date the condemning authority takes possession, by providing Landlord notice
in writing of its intent to terminate not later than twenty (20) days after
Landlord shall have notified Tenant of the taking. Failure of Tenant to so
notify Landlord shall constitute Tenant's agreement to continue the Lease in
full force and effect as to the balance of the Leased Premises.
18.2. Rent Reduction. If the Lease is not fully terminated after
any taking, then it shall remain in full force and effect as to the portion of
the Leased Premises remaining; provided the Rent payable thereunder shall be
reduced on an equitable basis, taking into account the relative value of the
portion taken as compared to the portion remaining. Landlord shall, at its
expense, restore the remaining portion to a complete unit of like quality and
character as existed prior to the condemnation.
18.3. Awards. All awards for the taking of any part of the Leased
Premises under the power of eminent domain shall be the property of Landlord,
whether made as compensation for diminution of value of the leasehold or for the
taking of the fee; provided however, that Tenant shall have the right to file
any separate claim available to Tenant for any taking of Tenant's personal
property and fixtures belonging to Tenant and removable by Tenant upon
expiration of the Lease Term pursuant to the terms of this Lease, and for moving
expenses, so long as such claim is payable separately to Tenant. Notwithstanding
anything in this Article 18 to the contrary, Landlord and Tenant shall each be
entitled to receive fifty percent (50%) of the "bonus value" of the leasehold
estate in connection therewith, which bonus value shall be equal to the
difference between the Rent payable under this Lease and the sum actually
established and awarded for the leasehold estate by the condemning authority as
the award for compensation. All Rent shall be apportioned as of the date of such
termination, or the date of such taking, whichever shall first occur.
19. SUBORDINATION.
--------------------
This Lease, at Landlord's option, shall be subject and subordinate
to the liens of any mortgages or deeds of trust and to any ground leases, in any
amount or amounts whatsoever now or hereafter placed on or against the land or
improvements, or either thereof, of which the Leased Premises are a part, or on
or against Landlord's interest or estate therein, without the necessity of the
execution and delivery of any further instruments on the part of Tenant to
effectuate such subordination. If any mortgagee or trustee or ground lessor
shall elect to have this Lease prior to the lien of its mortgage or deed of
trust or ground lease and shall give written notice thereof to Tenant, this
Lease shall be deemed prior to such mortgage or deed of trust or ground lease,
whether this Lease is dated prior or subsequent to the date of said mortgage or
deed of trust or ground lease.
Tenant covenants and agrees to execute and deliver upon demand,
without charge therefor, such further instruments evidencing such subordination
of this Lease to the lien of any such ground leases, mortgages or deeds of trust
as may be required by Landlord. Tenant covenants and agrees in the event any
proceedings are brought for the foreclosure of any such mortgage, or if any
ground or underlying lease is terminated, to attorn, without any deductions or
set-offs whatsoever, to the purchaser upon any such foreclosure sale, or to the
lessor of such ground or underlying lease, as the case may be, if so requested
to do so by such purchaser or lessor, and to recognize such purchaser or lessor
as the lessor under this Lease. Tenant waives the provisions of any current or
future statute, rule or law which may give or purport to give Tenant any right
or election to terminate or otherwise adversely affect this Lease and the
obligations of the Tenant hereunder in the event of any foreclosure proceeding
or sale.
20. QUIET ENJOYMENT.
----------------------
Landlord agrees Tenant, upon paying Rent and other monetary sums
due under this Lease and performing the covenants and conditions of this Lease,
may quietly have, hold and enjoy the Leased Premises during the Lease Term
hereof, subject, however, to the provisions herein referring to subordination
and condemnation.
21. DELAYS.
-------------
Whenever Landlord shall be delayed or restricted in the
performance of any obligation of Landlord herein (including any obligation with
respect to the provision of any service or utility or the performance of work or
repairs) by reason of Landlord's inability to obtain materials, services or
labor required for such performance or by reason of any statute, law or
regulation of a governmental entity, or by reason of any other cause beyond
Landlord's reasonable control, Landlord shall be entitled to extend the time for
such performance by a time equal to the extent of the delay or restriction, and
Tenant shall not be entitled to compensation for any inconvenience, nuisance or
discomfort occasioned thereby.
22. GENERAL PROVISIONS.
-------------------------
22.1. Estoppel Certificates. Tenant shall, at any time, upon not
less than ten (10) days written notice from Landlord, execute, acknowledge and
deliver to Landlord a statement in writing (a) certifying this Lease is
unmodified and in full force and effect (or if modified, stating the nature of
the modification) and the date to which the Rent and Operating Expenses are paid
in advance, (b) acknowledging there are not, to Tenant's knowledge, any uncured
defaults on the part of Landlord thereunder or specifying such default if any
exist, and (c) containing such other information reasonably requested by
Landlord or Landlord's mortgagee or prospective mortgagee or buyer. If Tenant
fails to execute and deliver such statement within ten (10) days, it shall be
deemed conclusively to have acknowledged the accuracy of the matter set forth in
Landlord's statement.
22.2. Transfer of Landlord's Interest. In the event of a sale or
conveyance voluntarily or involuntarily by Landlord of Landlord's interest in
the Leased Premises, Landlord shall be relieved from and after the date of such
transfer of all liability accruing thereafter on the part of Landlord; provided
any funds in the hands of Landlord at the time of transfer in which Tenant has
an interest shall be delivered to the successor of Landlord. This Lease shall
not be affected by any such sale and Tenant agrees to attorn to the transferee.
22.3. Captions. Article and paragraph captions are for convenience
only and are not a part of this Lease and shall not be used for interpretation
or construction of this Lease.
22.4. Time of Essence. Time is of the essence hereof.
22.5. Severability. The invalidity of any provision of this Lease,
as determined by a court of competent jurisdiction, shall in no way affect the
validity of any other provision hereof.
22.6. Modifications for Mortgagee. In the event any lending
institution with whom Landlord has negotiated or shall hereafter negotiate for
interim or permanent financing for the Building shall require a modification of
this Lease as a condition to providing such financing, Landlord shall promptly
provide written notice of the requirement to Tenant. If Tenant fails or refuses
to make such modification within thirty (30) days after such notice, this Lease
may be terminated by Landlord at any time prior to the date on which the Lease
Term commences. Provided, however, Tenant shall not be required to make any
modifications which materially alters its rights and responsibilities under this
Lease.
22.7. Entire Agreement. This Lease, along with any exhibits or
attachments hereto, constitutes the entire agreement between the parties
relative to the Leased Premises and there are no oral agreements or
representations between the parties with respect to the subject matter hereof.
This Lease supersedes and cancels all prior agreements and understandings with
respect to the subject matter hereof. This Lease may be modified only in
writing, signed by the parties in interest at the time of the modification.
22.8. Recording. This Lease shall not be recorded and any
recordation shall be a breach under this Lease.
22.9. Waiver. The waiver by Landlord of the breach of any
provision herein shall not be deemed a waiver of such provision. Acceptance by
Landlord of any performance by Tenant after the time the same shall have become
due shall not constitute a waiver by Landlord of the breach or default of any
covenant, term or condition unless otherwise expressly agreed to by Landlord in
writing.
22.10. Intentionally Deleted.
22.11. Binding Effect; Choice of Law. Subject to any provisions
hereof restricting assigning or subletting by Tenant and subject to the
provisions for the transfer of Landlord's interest, this Lease shall bind the
parties, their successors and assigns. This Lease shall be governed by the laws
of the State of Colorado.
22.12. Holding Over. If Tenant remains in possession of all or any
part of the Leased Premises after the expiration of the Lease Term hereof, with
or without the consent of Landlord, such tenancy shall be from month-to-month
only, and not a renewal hereof or an extension for any further term, on the same
terms and conditions as provided herein, except only as to the Lease Term;
provided, however, during such period as a tenant from month-to-month, Tenant
shall pay Base Rent at double the rate payable for the month immediately
preceding the date of termination of this Lease and, in addition, Tenant shall
reimburse Landlord for all damages (consequential as well as direct) sustained
by it by reason of Tenant's occupying the Leased Premises past the termination
date.
22.13. Entry by Landlord. Landlord and its agents shall have the
right to enter the Leased Premises at all reasonable times and upon reasonable
notice (which in the case of non-emergency repairs shall be at least twenty-four
(24) hours' prior written notice) for the purpose of examining or inspecting the
same, to supply janitorial services and any other services to be provided by
Landlord or Tenant thereunder, to show the same to prospective purchasers of the
Building and make such alterations, repairs, improvements or additions to the
Leased Premises or to the Building of which they are a part as Landlord may deem
necessary or desirable. Notwithstanding anything to the contrary contained in
this Section 22.13, Landlord may enter the Leased Premises at any time, without
notice to Tenant, in emergency situations and/or to perform regularly scheduled
janitorial and any other services to be provided by Landlord pursuant to this
Lease. Tenant shall permit Landlord to show the Leased Premises to prospective
tenants during the last six (6) months of the Lease Term hereof or any renewal
thereof. If Tenant shall not be personally present to open and permit an entry
into the Leased Premises at any time when such entry by Landlord is necessary or
permitted thereunder, Landlord may enter by means of master key without
liability to Tenant except for any failure to exercise due care for Tenant's
property, and without affecting this Lease. If, during the last month of the
Lease Term hereof, Tenant shall have removed substantially all of its property
from the Leased Premises, Landlord may immediately enter and alter, renovate and
redecorate the Leased Premises without elimination or abatement of rent or
incurring liability to Tenant for any compensation. Notwithstanding anything in
this Section 22.13 to the contrary, Landlord shall use commercially reasonable
efforts to exercise its rights under this Section 22.13 in a manner which
minimizes interference with the use and occupancy of the Leased Premises by
Tenant for the conduct of Tenant's normal business operations from the Leased
Premises.
22.14. Corporate Authority. If Tenant is a corporation, each
individual executing this Lease on behalf of said corporation represents and
warrants he is duly authorized to execute and deliver this Lease on behalf of
said corporation in accordance with a duly adopted resolution of the Board of
Directors of said corporation or in accordance with the by-laws of said
corporation, and this Lease is binding upon said corporation in accordance with
its terms.
22.15. Notices. All notices or demands of every kind required or
desired to be given by Landlord or Tenant thereunder shall be in writing and
shall be deemed delivered forty-eight (48) hours after depositing the notice or
demand in the United States mail, certified or registered, postage prepaid,
addressed to the Landlord or Tenant at the address set forth in Sections 3 and
5, respectively, of the Summary, or at such other place as such party may
designate from time to time.
22.16. Real Estate Broker. Tenant represents Tenant has dealt
directly and only with the real estate brokers or agents specified in Section 12
of the Summary as brokers ("Brokers") in connection with this Lease, and insofar
as Tenant knows, no other broker negotiated or participated in the negotiations
of this Lease, or submitted or showed the Leased Premises, or is entitled to any
commission in connection herewith. Tenant agrees to indemnify and defend
Landlord against and hold the other party harmless from any and all claims,
demands, losses, liabilities, lawsuits, judgments, and costs and expenses
(including without limitation reasonable attorneys' fees) with respect to any
leasing commission or equivalent compensation alleged to be owing on account of
Tenant's dealings with any real estate broker or agent other than the Brokers.
22.17. Sign Rights.
--------------------
22.17.1. Building Standard Signage. Landlord shall provide space
on the Building directory on the ground floor lobby of the Building for a
listing identifying Tenant's name and suite number. Landlord shall also install
near the entry door to the Leased Premises signage identifying Tenant's name.
All such permitted signage shall use Building standard materials and lettering.
Landlord shall pay for the cost of the initial installation of such permitted
signage, and Tenant shall pay for the cost of any changes thereto.
22.17.2. Exterior Signage. Subject to Tenant obtaining the
approval of all applicable governmental entities and Tenant's compliance with
all applicable governmental laws and ordinances and the terms of this Section
22.17.2, Tenant shall have the right to install, at Tenant's sole cost and
expense, one (1) identification sign displaying Tenant's logo and Tenant's name,
"Matrix Bancorp, Inc." (or "Matrix Bank" or "Matrix Capital Bank") (but no other
markings) on each of the following portions of the Building: (i) at the top of
the exterior of the Building on each of the following three (3) sides of the
Building: (A) the side of the Building facing 16th Street, (B) the side of the
Building facing 17th Street, and (C) the side of the Building facing California
Street (collectively, the "Building Exterior Signs"); and (ii) on the podium
level of the Building on each of the following two (2) sides of the Building:
(A) the side of the Building facing 17th Street, and (B) the side of the
Building facing California Street (collectively, the "Podium Level Signs").
Notwithstanding the foregoing, subject to Tenant obtaining the approval of all
applicable governmental entities and Tenant's compliance with all applicable
governmental laws and ordinances and the terms of this Section 22.17.2, Tenant
may convert either or both of the Podium Level Signs from static signs to
dynamic/electronic/reader signs displaying Tenant's logo and Tenant's name (as
set forth above) and such other information thereon (such as, for example, time
of day, outside temperature and stock quotes) as shall be approved by Landlord,
in Landlord's sole and absolute discretion prior to Tenant's displaying the
same. The approximate location of the Building Top Exterior Signs is depicted on
Exhibit "H" attached hereto, and the approximate location of the Podium Level
Signs is depicted on Exhibit "I" attached hereto. The graphics, materials,
color, design, lettering, lighting, size, specifications, manner of affixing and
exact location of the Building Top Exterior Signs and the Podium Level Signs
(collectively, the "Exterior Signs") shall be subject to Landlord's approval.
Tenant shall pay for all costs and expenses related to the Exterior Signs,
including, without limitation, costs of the design, construction, installation,
maintenance, insurance, utilities, repair and replacement of the Exterior Signs.
Tenant shall install and maintain the Exterior Signs in compliance with all laws
and subject to the applicable provisions of Articles 8 and 9 above. Tenant shall
be responsible for maintaining insurance on the Exterior Signs as part of the
insurance required to be carried by Tenant pursuant to Section 10.2 above.
22.17.2.1. Transferability. The rights to the Exterior Signs are
personal to the Original Tenant and may not be transferred by the Original
Tenant or used by anyone else, except that Tenant shall have the right to
transfer Tenant's rights to the Exterior Signs to an Affiliate of Tenant in
connection with Tenant's assignment of its entire interest in this Lease to such
Affiliate pursuant to Section 15.7 of this Lease, but any such transfer of
signage rights to such Affiliate assignee pursuant to this Section 22.17.2.1
shall be subject to Landlord's reasonable approval of the name change on the
Exterior Signs to reflect the identity of such Affiliate assignee. In addition,
following the Commencement Date, Tenant shall only have such rights to the
Exterior Signs when the Original Tenant or such Affiliate assignee is in
physical occupancy and possession of the entire Leased Premises (including any
First Offer Space) leased to Tenant hereunder.
22.17.2.2. Maintenance of Exterior Signs. Should the Exterior
Signs require maintenance, repairs or replacement as determined in Landlord's
reasonable judgment, Landlord shall have the right to provide written notice
thereof to Tenant and Tenant shall cause such repairs, replacement and/or
maintenance to be performed within ten (10) days after receipt of such notice
from Landlord, at Tenant's sole cost and expense; provided, however, if such
repairs, replacement and/or maintenance are reasonably expected to require
longer than ten (10) days to perform, Tenant shall commence such repairs,
replacement and/or maintenance within such ten (10) day period and shall
diligently prosecute such repairs, replacement and maintenance to completion.
Should Tenant fail to perform such maintenance, repairs or replacement within
the periods described in the immediately preceding sentence, Landlord shall have
the right to cause such work to be performed and to charge Tenant as Additional
Rent for the costs of such work.
22.17.2.3. Removal of Exterior Signs. Upon the expiration or
earlier termination of this Lease, or upon Tenant's loss of its right to the
Exterior Signs pursuant to Section 22.17.2.1 above, Tenant shall, at Tenant's
sole cost and expense, cause the Exterior Signs to be removed, and Tenant shall
repair all damage occasioned thereby and restore the affected areas to their
original condition prior to the installation of the Exterior Signs. If Tenant
fails to remove such signage and repair and restore the affected areas as
provided in the immediately preceding sentence, within ten (10) days following
the expiration or earlier termination of this Lease, then Landlord may perform
such work, and all costs and expenses incurred by Landlord in so performing such
work shall be reimbursed by Tenant to Landlord within ten (10) days after
Tenant's receipt of invoice therefor. The immediately preceding sentence shall
survive the expiration or earlier termination of this Lease.
22.18. Asbestos Disclosure. Landlord has advised Tenant that there
is asbestos-containing material ("ACM") in the Building, which consists of
non-friable floor tile, mastic and fireproofing. Such ACM exists behind hard
barriers, thus, it will not be accessible to tenants and other occupants of the
Building. Attached hereto as Exhibit F is a Notice Concerning Asbestos in the
Building. Tenant acknowledges that any construction, remodeling, replacement,
maintenance, repair, alterations or other work at the Building, including but
not limited to, major alterations, drilling or boring holes, installing
electrical, telecommunications or computer lines, sanding floors and removing
ceiling tiles could disturb the remaining ACM and possibly release asbestos
fibers into the air. Tenant shall not cause or permit any such work in or on the
Building (including, without limitation, any alterations, additions or other
work to the Leased Premises pursuant to the provisions of Article 9 of this
Lease) without the prior written consent of Landlord, and the granting of
Landlord's consent shall be conditioned upon, among other things, Landlord's
approval of the contractor who Tenant causes or permits to perform such work and
Landlord's receipt of an Asbestos Notification and Disturbance Agreement
executed by such Landlord-approved contractor in the form attached hereto as
Exhibit G. Landlord agrees that in performing any work in the Building, it shall
use commercially reasonable efforts not to disturb the remaining ACM in the
Building; if any such ACM is so disturbed by Landlord, Landlord shall promptly
remediate such disturbance at Landlord's sole cost and expense, which shall not
be included in Operating Expenses.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
the day and year first above written.
LANDLORD: WXI/SEV REALTY, LLC, a Delaware limited
liability company
By: LEGACY PARTNERS COMMERCIAL, INC., a Texas
corporation, as agent and manager
for Landlord
By: /s/ Xxxxx Xxxxx
------------------------------------------
Name:_____________________________________
Title_____________________________________
TENANT: MATRIX BANCORP, INC.,
a Colorado corporation
By: /s/ Xxxxx X. Xxxxx
------------------------------------------
Name:_____________________________________
Title_____________________________________
By: /s/ Xxxxxxxx Xxxxxxxxx
------------------------------------------
Name:_____________________________________
Title_____________________________________
***If Tenant is a CORPORATION, the authorized officers must sign on
behalf of the corporation and indicate the capacity in which they are signing.
The Lease must be executed by the president or vice-president and the secretary
or assistant secretary, unless the bylaws or a resolution of the board of
directors shall otherwise provide, in which event, the bylaws or a certified
copy of the resolution, as the case may be, must be attached to this Lease.
