EXHIBIT 10.18
June 9, 1999
OFFICE LEASE
by and between
WESTMARK TERRACE TOWER II, INC.,
a Delaware corporation,
as Landlord
and
INTEK INFORMATION, INC.,
a Delaware corporation,
as Tenant,
Premises:
0000 XXX Xxxxxxx, Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx
TABLE OF CONTENTS
OFFICE LEASE
Terrace Tower II
Article Page
------- ----
1. BASIC LEASE PROVISIONS.......................... 1
2. DEMISE.......................................... 2
3. TERM............................................ 3
4. RENT............................................ 3
5. SECURITY DEPOSIT................................ 8
6. USE OF PREMISES; PARKING........................ 9
7. RULES AND REGULATIONS........................... 10
8. SERVICES PROVIDED............................... 10
9. LEASEHOLD IMPROVEMENTS; ALTERATIONS............. 12
10. CONDITION OF PREMISES........................... 13
11. SURRENDER OF THE PREMISES....................... 14
12. DAMAGE OR DESTRUCTION........................... 14
13. EMINENT DOMAIN.................................. 15
14. RELEASE, WAIVER AND INDEMNIFICATION............. 16
15. INSURANCE; WAIVER OF SUBROGATION................ 17
16. LANDLORD'S RIGHT OF ACCESS...................... 18
17. RIGHTS RESERVED TO LANDLORD..................... 19
18. ABANDONMENT..................................... 20
19. TRANSFER OF LANDLORD'S INTEREST................. 20
20. TRANSFER OF TENANT'S INTEREST................... 20
21. DEFAULT; LANDLORD'S RIGHTS AND REMEDIES......... 22
22. WAIVER OF COUNTERCLAIMS AND JURY TRIAL.......... 25
23. HOLDING OVER.................................... 25
24. SUBORDINATION; ATTORNMENT; ESTOPPEL CERTIFICATE. 26
25. HAZARDOUS MATERIALS............................. 28
26. RELOCATION OF TENANT............................ 29
27. NOTICES AND DEMANDS............................. 29
28. MISCELLANEOUS; TENANT OPTIONS................... 30
SIGNATURE PAGE.................................. 34
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OFFICE LEASE
This Lease is made and executed as of this 9/th/ day of June, 1999, by the
parties hereinafter identified as Landlord and Tenant and upon the following
terms and conditions:
ARTICLE 1
BASIC LEASE PROVISIONS
For purposes of this Lease, the following terms shall have the meanings ascribed
to them in this Article 1:
1.01 Landlord and Address:
Westmark Terrace Tower II, Inc.
c/o CB Xxxxxxx Xxxxx Investors, L.L.C.
000 X. Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Asset Manager/5619 DTC Parkway
1.02 Tenant and Address:
Intek Information, Inc.
0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxx
1.03 Guarantor(s) and Current Address(es): None.
1.04 Building: That certain building and other improvements located on property
commonly known and numbered as 0000 XXX Xxxxxxx, Xxxxxxxxx, Xxxxxxxx 00000
("Property"). The Building shall be deemed to contain 240,609 rentable square
feet, whether the same be more or less in actuality. The legal description of
the Property on which the Building is located is set forth in Exhibit A hereto.
1.05 Premises: The twelfth floor of the Building, but excluding that area
cross-hatched, as shown on the floor plan attached hereto as Exhibit B.
1.06 Area of Premises: The Premises shall be deemed to contain 15,613 rentable
square feet, whether the same be more or less in actuality. Said 15,613 rentable
square feet is the final agreement of the parties and not subject to adjustment.
1.07 Term: Six (6) years.
1.08 Commencement Date: July 1, 1999.
1.09 Expiration Date: June 30, 2005.
1.10 Total Monthly Base Rent for the Term: Two Million Five Hundred Twenty-Nine
Thousand Three Hundred Six and No/100ths Dollars ($2,529,306.00).
1.11 Monthly Base Rent:
Dates Annual Base Rent Monthly Base Rent
----- ---------------- -----------------
July 1, 1999 through $421,551.00 $35,129.25
June 30, 2005*
*Subject to abatement as set forth in Exhibit F attached hereto.
Monthly Base Rent is independent of the number of rentable square feet in either
the Premises or Building.
1.12 Tenant's Share: 6.4890%.
1.13 Base Operating Year: Intentionally Omitted
1.14 Base Expenses (including Operating Expenses and Taxes, as defined below):
The sum of Two Million Forty-Five Thousand One Hundred Seventy-Six and 50/100ths
Dollars ($2,045,176.50).
1.15 Base Taxes: Intentionally Omitted
1.16 Security Deposit: See Article 5 below.
1.17 Broker(s) and Address(es):
Landlord's Broker: CB Xxxxxxx Xxxxx, Inc.
0000 X. Xxxxx Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Tenant's Broker: The Staubach Company
0000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
1.18 Landlord's Management Agent and Address:
CB Xxxxxxx Xxxxx, Inc. with a copy to:
0000 00xx Xxxxxx, Xxxxx 000 CB Xxxxxxx Xxxxx, Inc.
Xxxxxx, Xxxxxxxx 00000 0000 X. Xxxxxxxx Xxxxxx, Xxxxx 000
Attn: Real Estate Manager Xxxxxx, Xxxxxxxx 00000
Attn: Real Estate Manager
or such other Management Agent as Landlord may designate from time to time.
1.19 Rent Payment Address:
Westmark Terrace Tower II, Inc.
X.X. Xxx 000000
Xxxxxx, XX 00000-0000
1.20 Parking Spaces: Sixty-two (62) parking spaces in the parking facilities
associated with the Building (50 shall be in the covered parking structure and
12 shall be uncovered parking space on the top deck of the parking structure).
All Parking Spaces shall be unassigned, unreserved and on a first come, first
served basis.
1.21 Monthly Parking Rent: $2,500.00 per month for the Parking Spaces
(calculated based on $50.00 per month for each covered unreserved parking space
and $0.00 per month for each uncovered unreserved space) ("Monthly Parking
Rent"), payable as Rent, as defined in Section 4.02 below.
ARTICLE 2
DEMISE
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the
Premises for the Term and upon the terms, covenants and conditions set forth in
this Lease. Subject to the provisions of Section 28.18 (Landlord's Contingency)
below, this Lease shall be in full force and effect from the date it is signed
and delivered by Landlord and Tenant. Tenant covenants as a material part of the
consideration for this Lease
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to keep and perform each and all of the terms, covenants and conditions by it to
be kept and performed. This Lease is made upon the condition of such
performance. All square footages referenced herein are based on "rentable" (as
opposed to "useable") square feet, unless specifically indicated otherwise. No
such square footages shall be subject to retroactive adjustments under any
circumstances. Tenant hereby accepts the Premises in its current "as is"
condition.
ARTICLE 3
TERM
The term of this Lease shall commence on the Commencement Date and expire on the
Expiration Date unless sooner terminated as provided in this Lease and except as
provided in the Work Letter attached hereto as Exhibit C. If Landlord shall be
unable to deliver possession of the Premises to Tenant on the Commencement Date
for any reason whatsoever, this Lease shall not be void or voidable and Landlord
shall not be subject to any liability for the failure to deliver possession on
said date nor shall such failure to deliver possession on the Commencement Date
affect the validity of this Lease or the obligations of Tenant hereunder.
Immediately following the Commencement Date, Tenant shall execute and deliver to
Landlord a confirmation of certain dates applicable to this Lease substantially
in the form attached hereto as Exhibit D and incorporated herein by this
reference.
ARTICLE 4
RENT
4.01 Definitions. For purposes of this Lease, the following terms shall
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have the meanings ascribed to them in this Section 4.01:
(a) "Adjustment Year" shall mean each calendar year or part thereof
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during the Term.
(b) "Operating Expenses" shall mean and include all amounts, expenses
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and costs of whatever nature that Landlord incurs or pays because of or in
connection with the ownership, control, operation, repair, management,
replacement or maintenance of the Building, all related improvements thereto or
thereon and all machinery, equipment, landscaping, fixtures and other
facilities, including personal property, as may now or hereafter exist in or on
the Building. Operating Expenses shall be determined in accordance with
generally accepted accounting principles consistently applied and shall include,
but shall not be limited to, the following:
(1) Wages, salaries, fees, related taxes, insurance costs,
benefits (including amounts payable under medical, pension and welfare plans and
any amounts payable under collective bargaining agreements) and reimbursement of
expenses of and relating to all personnel engaged in operating, repairing,
managing and maintaining the Property;
(2) All supplies and materials related to the management,
operation, maintenance and repair of the Building, including sales tax imposed
in connection with the purchase thereof;
(3) Legal and accounting fees and expenses related to the
management, operation, maintenance and repair of the Building (except for legal
fees incurred in connection with the negotiation or the collection of amounts
due under leases);
(4) Cost of all utilities for the Building and all premises
therein, including, without limitation, water, sewer, power, fuel, heating,
lighting, air conditioning and ventilating, as well as any and all costs
directly or indirectly associated with changing providers of such utilities;
(5) Fees and other charges payable under or in respect of all
maintenance, repair, janitorial, security and other service agreements for or
pertaining to the Building;
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(6) Cost of all insurance, including all deductibles thereunder,
relating to the Building, or the ownership, its occupancy or operations thereof;
(7) Cost of repairs and maintenance of the Building, excluding
only such costs which are paid by the proceeds of insurance, by Tenant or by
other third parties (other than payment by Tenant or other tenants of the
Operating Expenses);
(8) Amortization of the cost (plus interest at the then current
market rate on the unamortized portion of such cost from time to time) of
capital repairs, replacements and improvements, including, without limitation,
those that are for the purpose of reducing costs includible in the definition of
Operating Expenses or that may be required by governmental authority, including
but not limited to, pursuant to the Americans with Disabilities Act. All such
costs shall be amortized over the reasonable useful life of the capital
investment items, with the reasonable useful life and amortization schedule
being determined in accordance with sound management accounting principles;
(9) Reasonable and customary management fees and reimbursed
expenses of Landlord's Management Agent and administrative expenses not borne by
Landlord's Management Agent;
(10) Fees and charges under any declaration of covenants,
easements or restrictions affecting the Building; and
(11) Expenses of a building event, or of a decorative or
community promotional nature, including, without limitation, costs of
Building-wide social events and/or parties, community interest displays, artwork
and seasonal (holiday) decorations; and
(12) Taxes (as defined below).
Notwithstanding the foregoing, Operating Expenses shall not include:
(1) Principal or interest payments with respect to mortgages
against the Building;
(2) Ground lease payments;
(3) Depreciation;
(4) The cost of replacement of capital investment items to the
extent not amortized over the applicable useful life and except as provided in
Section 4.01 (b)(8);
(5) Charges for special items or services billed separately to
(and in addition to Expense Adjustment Statements) and paid by tenants of the
Building; or
(6) Leasing commissions or other expenses solely related to
marketing space in the Building;
(7) Costs associated with the operation of the business of the
ownership or entity which constitutes "Landlord", as the same are distinguished
from the costs of operating the Building including, but not limited to, legal
matters, costs of defending any lawsuits with any mortgagee (except as the
actions of Tenant may be in issue), legal fees incurred in the negotiation and
enforcement of tenant leases (excluding Tenant's Lease) and costs of selling,
syndicating, financing, mortgaging or hypothecating any of Landlord's interest
in the Building;
(8) Costs, including permit, license and inspection costs,
incurred with respect to the installation of tenant improvements made for new
tenants in the Building, or incurred in renovating or otherwise improving,
modifying, decorating, painting or redecorating vacant space for
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occupancy by tenants or other occupants of the Building, or incurred in the
design, manufacture, and installation of other tenants' signs;
(9) Interest, principal payments, points and fees on debts or
amortization on any mortgage or deed of trust encumbering the Building;
(10) Costs of any items to the extent Landlord receives
reimbursement from insurance proceeds from Landlord's or Tenant's insurance
carriers (such proceeds to be excluded from Operating Expenses in the year in
which received, except that any deductible amount under any insurance policy of
Landlord shall be included within Operating Expenses) or from a third party;
(11) Any bad debt loss, rent loss, or reserves for bad debts or
rent loss;
(12) The cost of providing any service directly to and paid
directly by any tenant (other than through Operating Expense pass through
provisions), and the cost of services provided selectively to one or more
tenants of the Building (other than Tenant) without reimbursement;
(13) The wages of any employee above the grade of building
manager;
(14) Fines, penalties and interest incurred as a result of
Landlord's negligence or willful misconduct;
(15) Landlord's cost of electricity and other services which it
has sold to tenants and for which Landlord has been reimbursed;
(16) The cost of services provided by Landlord's affiliates to
the extent that such costs would exceed the costs of such services rendered by
unaffiliated, qualified third parties on a competitive basis;
(17) Costs arising from Landlord's direct charitable or political
(monetary) contributions;
(18) Costs of any fees or sewer or water connection fees for the
benefit of any particular tenant in the Building;
(19) Any entertainment, dining or travel expenses for any
purpose, except as may be incurred by Landlord's Management Agent in connection
with its management of the Building;
(20) Any expenses incurred by Landlord for use of any portions of
the Building to accommodate private parties or ceremonies;
(21) The cost of any legal or accounting services rendered by
"in-house" legal counsel and/or accountants (exclusive of any legal or
accounting services provided by Landlord's Management Agent in the course of
managing the Building and compensated as a part of management fees and
reimbursed expenses);
(22) Costs incurred by Landlord arising from the violation by
Landlord or any tenant of the terms and conditions of any lease of space in the
Building;
(23) Costs arising from the negligence or fault of other tenants
or Landlord or its agents, or any vendors, contractors, or providers of
materials or services selected, hired or engaged by Landlord or its agents; and
(24) The costs incurred in correcting latent defects in the
foundation or structural members of the Building, except that conditions
resulting from ordinary wear and tear will not be deemed defects for the purpose
of this category.
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In the event any facilities, services or utilities in connection with the
Building are provided from resources common with another Building owned or
operated by Landlord, the costs incurred by Landlord in connection therewith
shall be allocated to Operating Expenses of the Building and the other building
by Landlord on a reasonably equitable basis. If at any time the Building is not
fully occupied or Landlord is not supplying services to all rentable areas of
the Building during an entire calendar year, then Landlord may adjust actual
Operating Expenses to Landlord's estimate of that amount which would have been
paid or incurred by Landlord as Operating Expenses had the Building been fully
occupied or serviced, and the Operating Expenses as so adjusted shall be deemed
to be the actual Operating Expenses for such calendar year. If Landlord does not
furnish during any Adjustment Year any particular work or service (the cost of
which, if performed by Landlord, would constitute an Operating Expense) to a
tenant which has undertaken to perform such work or service in lieu of the
performance thereof by Landlord, then Operating Expenses shall be deemed to be
increased by an amount equal to the additional expense which would reasonably
have been incurred during such Adjustment Year by Landlord if it had, at its
cost, furnished such work or service to such tenant. The provisions of the
preceding sentences will apply only to those Operating Expenses that either vary
with occupancy or by reason of one or more tenants not receiving goods or
services, the cost of which constitutes all or part or such Operating Expenses.
Landlord agrees that Landlord will not collect or be entitled to collect
Operating Expenses from all of its tenants in an aggregate amount which is in
excess of one hundred percent (100%) of the Operating Expenses actually accrued
or paid by Landlord in connection with the operation of the Building.
(c) "Taxes" shall mean and include all federal, state and local
government taxes, assessments and charges of any kind or nature, whether
general, special, ordinary or extraordinary, accruing during a calendar year
with respect to the Building; provided, real estate taxes and special
assessments (except as provided below) shall be included in Taxes for a calendar
year only to the extent such taxes and assessments are paid during such calendar
year, regardless of when assessed. In addition, "Taxes" shall include, without
limitation, real estate and transit district taxes and assessments, sales and
use taxes, ad valorem taxes, personal property taxes, any lease or lease
transaction tax and all taxes, assessments and charges in lieu of, substituted
for, or in addition to, any or all of the foregoing taxes, assessments and
charges. Notwithstanding any provision of this Section 4.01(c) to the contrary,
Taxes shall not include any federal, state or local government income,
franchise, capital stock, inheritance or estate taxes, except to the extent such
taxes are in lieu of or a substitute for any of the taxes, assessments and
charges previously described in this Section 4.01 (c). "Taxes" shall also
include the amount of all fees, costs and expenses (including, without
limitation, attorneys' fees and court costs) paid or incurred by Landlord each
calendar year in seeking or obtaining any refund or reduction of Taxes or for
contesting or protesting any imposition of Taxes, whether or not successful and
whether or not attributable to Taxes accrued, assessed, paid or incurred in such
calendar year. If any special assessment payable in installments is levied
against all or any part of the Property, then Taxes for the calendar year in
which such assessment is levied and for each calendar year thereafter shall
include only the amount of any installments of such assessment plus interest
thereon accrued during such calendar year (without regard to any right to pay,
or payment of, such assessment in a single payment). If the Property is not
assessed as fully improved for any calendar year or part thereof, Landlord may
make an adjustment to the amount of Taxes for each such calendar year to reflect
the amount of Taxes which would have been assessed if the Property had been
assessed as fully improved, and the amount of any such adjustment shall be
included on the amount of Taxes for such calendar year. If the Building is not
fully leased and occupied by tenants during all or any portion of a calendar
year, then Landlord may make an adjustment to the amount of Taxes for such
calendar year to reflect the amount of Taxes which would have been assessed if
the Building had been fully leased and occupied by tenants during such calendar
year, and the amount of any such adjustment shall be included in the amount of
Taxes for such calendar year.
4.02 Payment of Rent. Tenant shall pay to Landlord's Management Agent, at
---------------
the address set forth in Article 1 above as the Rent Payment Address or to such
other person or entity and/or at such other place as Landlord may from time to
time direct in writing, all amounts due Landlord from Tenant hereunder,
including, without limitation, Monthly Base Rent, Monthly Parking Rent and
Expense Adjustment (all amounts due hereunder being referred to collectively as
"Rent"). Except as specifically provided in this Lease, Rent shall be paid
without abatement, deduction or set off of any kind, it being the
6
intention of the parties that, to the full extent permitted by law, Tenant's
covenant to pay Rent shall be independent of all other covenants contained in
this Lease, including Tenant's continued occupancy of the Premises. Tenant's
obligation hereunder to pay Rent accruing during the Term (whether or not the
amount thereof is determined or determinable as of the date of termination or
expiration of this Lease) shall survive the termination of this Lease.
4.03 Payment of Monthly Base Rent. Monthly Base Rent and Monthly Parking
----------------------------
Rent shall be payable monthly, in advance, on the first day of each calendar
month during the Term, except that Monthly Base Rent for the first full calendar
month of the Term for which Monthly Base Rent is due shall be paid concurrently
with the execution of this Lease by Tenant. If the Term commences on a day other
than the first day of a calendar month, then Monthly Base Rent for such month
will be prorated on a per diem basis based on a thirty (30) day month and the
excess of the installment or Monthly Base Rent paid concurrently with the
execution of this Lease by Tenant over such prorated amount for the first
calendar month of the Term shall be applied against Monthly Base Rent and
Monthly Parking Rent for the first full calendar month of the Term.
4.04 Adjustment. In addition to Monthly Base Rent, Tenant shall pay with
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respect to each Adjustment Year Tenant's Share of the amount by which the
aggregate of Operating Expenses and Taxes for the Adjustment Year exceed the
Base Expenses ("Adjustment"). As to any Adjustment Year during the Term which
does not begin on January 1st or does not end on December 31st, Adjustments with
respect to such Adjustment Year shall be prorated on a per diem basis.
4.05 Payment of Adjustments. Adjustments with respect to each Adjustment
----------------------
Year shall be paid in monthly installments in advance on the first day of each
calendar month during such Adjustment Year in amounts sufficient to satisfy
payment of the Adjustments for such Adjustment Year as reasonably estimated by
Landlord from time to time prior to or during any Adjustment Year and
communicated to Tenant by written notice ("Estimated Adjustment"). If Landlord
does not deliver such a notice (an "Estimate") prior to the commencement of any
Adjustment Year, Tenant shall continue to pay Estimated Adjustments as provided
in the most recently received Estimate (or Updated Estimate, as defined below)
or the latest determined Estimated Adjustment, whichever is greater, until the
Estimate for such Adjustment Year is delivered to Tenant. If, during any
Adjustment Year, Landlord reasonably determines that Operating Expenses for such
Adjustment Year have increased or will increase, Landlord may deliver to Tenant
an updated Estimate ("Updated Estimate") for such Adjustment Year. Monthly
installments of Estimated Adjustments paid subsequent to Tenant's receipt of the
Estimate or Updated Estimate for any Adjustment Year shall be in the amounts
provided in such Estimate or Updated Estimate, as the case may be. In addition,
Tenant shall pay to Landlord within twenty (20) days after receipt of such
Estimate or Updated Estimate, the amount, if any, by which the aggregate
installments of the Estimated Adjustments provided in such Estimate or Updated
Estimate, as the case may be, with respect to prior months in such Adjustment
Year exceed the aggregate installments of the Estimated Adjustment paid by
Tenant with respect to such prior months. Within one hundred twenty (120) days
after the end of each Adjustment Year, or as soon thereafter as practicable,
Landlord shall send to Tenant a statement (the "Final Adjustment Statement")
showing (i) the Operating Expenses for the immediately preceding year and the
Base Expenses by general category in the manner customarily provided to tenants
of the Building, (ii) the calculation of the Estimated Adjustment for such
Adjustment Year, (iii) the aggregate amount of the Estimated Adjustment
previously paid by Tenant for such Adjustment Year, and (iv) the amount, if any,
by which the aggregate amount of the installments of Estimated Adjustment paid
by Tenant with respect to such Adjustment Year exceeds or is less than the
Adjustment for such Adjustment Year. Landlord shall have the right to xxxx
Tenant separately for Adjustments in which event the provisions hereof shall
apply to each as a separate Final Adjustment Statement. Tenant shall pay the
amount of any deficiency to Landlord within ten (10) days after the date of such
statement. Any excess shall, at Landlord's option, either be credited against
payments past or next due under this Lease or refunded by Landlord, provided
Tenant is not then in default under this Lease.
4.06 Tenant's Review of Landlord's Books and Records. Tenant shall have
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the right to conduct a Tenant's Review, as hereinafter defined, at Tenant's sole
cost and expense, upon thirty (30) days' prior written notice to Landlord.
"Tenant's Review" shall mean a review of Landlord's books and records
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relating to (and only relating to) the Taxes and Operating Expenses payable by
Tenant hereunder for the most recently completed calendar year (as reflected on
Landlord's Final Adjustment Statement) by a Certified Public Accountant ("CPA")
reasonably satisfactory to Landlord. Tenant's Review must be completed within
sixty (60) days following Tenant's receipt of Landlord's Final Adjustment
Statement for the most recently completed calendar year. In the event that
Tenant fails to complete Tenant's Review of Operating Expenses and Taxes for the
previous calendar year within such sixty (60) day period, Landlord's calculation
of Operating Expenses and Taxes shall be final and binding on Tenant. Tenant
hereby acknowledges and agrees that even if it has elected to conduct a Tenant's
Review, Tenant shall nonetheless pay all Adjustments and payments to Landlord,
subject to readjustment. Tenant further acknowledges that Landlord's books and
records relating to the Building may not be located at the Building and Landlord
is only obligated to make such books and records available to Tenant at a
location within the metropolitan Denver area. Tenant shall provide to Landlord a
copy of Tenant's Review as soon as reasonably possible after the date of such
Review. If Tenant's Review reflects a reimbursement owing to Tenant by Landlord,
and if Landlord disagrees with Tenant's Review, then Tenant and Landlord shall
jointly appoint a CPA to conduct a review ("Independent Review"), which
Independent Review shall be deemed binding and conclusive on both Landlord and
Tenant. If the Independent Review results in a reimbursement owing to Tenant
equal to five percent (5%) or more of the amounts reflected in the Final
Adjustment Statement, the costs of the Independent Review shall be paid by
Landlord, but otherwise Tenant shall pay the costs of the Independent Review.
Under no circumstances shall Tenant conduct a review of Landlord's books and
records whereby the auditor operates on a contingency fee or similar payment
arrangement.
ARTICLE 5
SECURITY DEPOSIT
As security for the performance of its obligations under this Lease,
Tenant, on the execution of this Lease, shall deposit with Landlord a security
deposit in the amount set forth in Article I hereof (the "Security Deposit"),
and agrees from time to time to pay Landlord within three (3) business days
following the receipt of a request therefor, any sum or sums of money paid or
deducted therefrom by Landlord pursuant to the provisions of this Lease, in
order that at all times during the Term there shall be continually deposited
with Landlord, a sum which shall never be less than the amount originally
deposited. The Security Deposit shall not be deemed an advance payment of Rent,
nor a measure of damages for any default by Tenant under this Lease, nor shall
the Security Deposit be a bar or a defense to any action that Landlord may
commence against Tenant. In the event of any default by Tenant hereunder,
Landlord shall have the right, but shall not be obligated, to apply or retain
all or any portion of the Security Deposit in payment of Tenant's obligations
hereunder, but any such application or retention shall not have the effect of
curing any such default.
In lieu of a cash deposit by Tenant for a security deposit, Tenant shall
deposit with Landlord and keep in full force and effect a clean, unconditional
and irrevocable letter of credit issued by a bank acceptable to Landlord in its
sole judgment, automatically renewing on an annual basis in the initial amount
of Two Hundred Fifty Thousand and No/100ths Dollars ($250,000.00), which letter
of credit shall be in the form annexed hereto as Exhibit G and incorporated
herein by this reference ("Letter of Credit"). The Letter of Credit shall
provide for written notice of non-renewal to be sent directly to Landlord at
least thirty (30) days prior to such renewal date.
At any time that a Default occurs, Landlord shall have the right to draw
down the entire Letter of Credit and apply the proceeds or any part thereof in
accordance with the provisions of the Lease. The proceeds of the Letter of
Credit remaining after application of funds shall be held by Landlord as a cash
security deposit without interest accruing thereon and subject to being
commingled with the security deposits of other tenants. Landlord shall also have
the right to draw down the entire Letter of Credit in the event Landlord does
not receive notice that the date of expiry of the Letter of Credit will be
extended by the issuing bank and Tenant fails to obtain and present to Landlord
at east fifteen (15) days prior to the expiration of the Letter of Credit a
substitute letter of credit. If Landlord shall have drawn down the Letter of
Credit and applied all or a portion thereof in accordance with the terms of the
Lease, then Tenant shall deposit with Landlord, within three (3) days after
notice from Landlord, an amount of cash sufficient to bring the balance of the
cash then being held by Landlord under the terms hereof to the amount of the
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original Letter of Credit. The failure by Tenant to deposit such additional
amount within the foregoing time period shall be deemed a Default pursuant to
Section 21.01 of the Lease.
Tenant hereby acknowledges the security provided by the Letter of Credit is
provided as a continuing material inducement to Landlord, is provided as current
and ongoing value to the Landlord, and constitutes an ongoing contemporaneous
exchange for new value given for the Tenant's tenancy throughout the Term of the
Lease, as may be extended.
In the event of loss or destruction of the Letter of Credit, Tenant shall
instruct the issuing bank to provide Landlord with a replacement Letter of
Credit, and Landlord shall provide to the issuing bank an affidavit of loss or
destruction in the form reasonably required by the issuing bank. Landlord may
deliver the Letter of Credit or substitute cash security deposit to a purchaser
of Landlord's interest in the Premises and the Building in the event such
interest in sold, and thereupon Landlord shall be discharged from further
liability with respect to the Letter of Credit. If claims of Landlord exceed the
amount of the Letter of Credit, Tenant shall remain liable for such claims.
On or after July 1, 2002, and provided there is no Default (declared or
undeclared by Landlord) under this Lease and no event or condition which, with
the passage of time, shall serve as the basis for a Default, the Letter of
Credit or any substitute cash security deposit (or the balance thereof remaining
after payment out of the same or deduction therefrom as provided above) shall be
returned to Tenant, it being understood and agreed that, in the event of
Default, the Letter of Credit or any substitute cash security deposit (if any)
may be retained by Landlord through the Expiration Date of this Lease, at which
time the cash substitute security deposit (or the balance thereof remaining
after payment out of the same or deduction therefrom as provided above) shall be
returned to Tenant no later than sixty (60) days following the Expiration Date.
No interest shall be payable on any substitute cash security deposit. No
Mortgagee (as hereinafter defined) or person or entity who acquires legal or
beneficial title to the Building from such Mortgagee shall be liable for the
return of the Letter of Credit or any substitute cash security deposit unless
such Letter of Credit or substituted cash security deposit are actually received
by such Mortgagee or purchaser.
ARTICLE 6
USE OF PREMISES; PARKING
6.01 Permitted Use. Tenant shall use and occupy the Premises solely for
-------------
general administrative office purposes and for no other use or purpose.
6.02 No Nuisance. Tenant shall not commit, or suffer to be committed, any
-----------
annoyance, waste, nuisance, act or thing against public policy, of which may
disturb the quiet enjoyment of Landlord or any other tenant or occupant of the
Building. Tenant agrees not to deface or damage the Building in any manner.
6.03 Parking. Tenant shall have a license from the Commencement Date until
-------
expiration of the Term to use the Parking Spaces in common with other tenants
and occupants of the Building and visitors, guests and invitees. Tenant may not
use additional parking spaces without the prior written consent of Landlord, in
its sole discretion. Tenant and its agents, employees, contractors, invitees or
licensees shall not interfere with the rights of Landlord or others entitled to
similar use of the parking facilities. All parking facilities furnished by
Landlord shall be subject to the reasonable control and management of Landlord,
who may, from time to time, establish, modify and enforce reasonable rules and
regulations with respect thereto. Landlord further reserves the right to change,
reconfigure, or rearrange the parking areas, to construct or repair any portion
thereof, and to restrict or eliminate the use of any parking areas and do such
other acts in and to such areas as Landlord deems necessary or desirable without
such actions being deemed an eviction of Tenant or a disturbance of Tenant's use
of the Premises and without Landlord being deemed in default hereunder. Landlord
may, in its sole discretion, convert the parking facilities to a reserved and/or
controlled parking facility. If specific parking spaces are not assigned
pursuant to the terms of this Lease, Landlord reserves the right at any time to
assign specific parking spaces and Tenant shall thereafter be responsible to
insure that its agents, employees, contractors, invitees or
9
licensees park in the specifically designated parking spaces. Tenant shall, if
requested by Landlord, furnish to Landlord a complete list of the license plate
numbers of all vehicles operated by Tenant, Tenant's employees and agents.
Landlord shall not be liable for any damage of any nature to, or any theft of,
vehicles, or contents thereof, in or about such parking facility. At Landlord's
request, Tenant shall cause its employees and agents using Tenant's parking
spaces to execute an agreement confirming the foregoing. Excessive use of the
parking facilities by another tenant shall not be a default or breach of this
Lease by Landlord, and shall not suspend or terminate any of Tenant's
obligations under this Lease, and shall not entitle Tenant to exercise any other
right or remedy it may be afforded hereunder or at law or in equity. Landlord
may promulgate reasonable restrictions on the access to and from the parking
facilities, including, without limitation the installation of a card-key access
system (and Landlord may charge a commercially reasonable deposit for each such
card-key issued).
6.04 Number of Occupants. Tenant hereby acknowledges that Landlord desires
-------------------
to limit the number of people occupying the Premises in order to maintain
certain mechanical standards and appearances of the Building. Accordingly,
notwithstanding any other provision of this Lease to the contrary (including,
without limitation, provisions regarding use of the Premises, heating,
ventilation and air conditioning and rules and regulations), Tenant hereby
agrees that the aggregate number of people (including, without limitation,
full-time employees, part-time employees, independent contractors and agents of
Tenant) which may use or perform services or activities in the Premises shall
not exceed a ratio of one (1) person for each two hundred fifty (250) rentable
square feet of space in the Leased Premises, regardless of whether such people
"office share", "job share" or work in shifts. Landlord hereby acknowledges that
Tenant may, from time to time, allow invitees, guests and repair workers to
enter the Premises for the purposes of meeting with employees and making
repairs, and that the temporary presence of such people shall not be included in
the aforementioned calculation.
ARTICLE 7
RULES AND REGULATIONS
Tenant agrees to observe the reservations and rights reserved to Landlord
in this Lease. Tenant shall comply, and shall cause its employees, agents,
clients, customers, guests and invitees to comply, with the rules and
regulations attached hereto as Exhibit E, and such revised or additional rules
and regulations adopted by Landlord during the Term and applied generally to all
office tenants of the Building. Any violation by Tenant or any of its employees,
agents, clients, customers, guests or invitees of any of the rules and
regulations so adopted by Landlord shall be a default by Tenant under this Lease
and may be restrained by court injunction; but whether or not so restrained,
Tenant acknowledges and agrees that it shall be and remain liable for all
damages, loss, costs and expense resulting from any violation by Tenant or such
other persons of any of said rules and regulations. Nothing contained in this
Lease shall be construed to impose upon Landlord any duty or obligation to
enforce said rules and regulations of the terms, covenants and conditions of any
other lease against any other tenant or any other persons, and Landlord shall
not be liable to Tenant for violation of the same by any other tenant, its
employees, agents, guests, invitees, licensees, customers, clients, family
members, or by any other person.
ARTICLE 8
SERVICES PROVIDED
8.01 Landlord's Services. Landlord shall furnish:
-------------------
(a) Cooled or heated air in season to provide a temperature condition
required, in Landlord's sole judgment, for comfortable occupancy of the Premises
under general administrative office purposes and in the absence of the use of
equipment which affects the temperature or humidity which would otherwise be
maintained in the Premises, daily from 7:00 A.M. to 6:00 P.M. (Saturdays 8:00
A.M. to 12:00 P.M.), Sundays and Holidays (as defined below) excepted. If Tenant
shall request, at least one (1) business day in advance, Landlord shall provide
after hours cooled or heated air for the Premises; provided, that Tenant shall
pay Landlord's charges for such service (currently in the amount of $50.00 per
hour), which hourly charges are subject to change from time to time without
notice, within ten (10) days after receipt of Landlord's invoices therefor.
Further, if the use of heat generating equipment in the Premises affects the
10
temperatures otherwise maintained by the air conditioning system for normal
business operations, and thereby requires, in the sole judgment of Landlord, the
modification of the air conditioning or ventilation systems (including
installation of supplementary air conditioning units in the Premises, metering,
recircuiting for metering, engineering design services, construction services
and construction administration fees associated therewith) Landlord may elect to
perform such modification, and the cost thereof shall be paid by Tenant to
Landlord at the time of completion of such modification, or Landlord may elect
to require Tenant to perform such modification, at Tenant's sole cost and
expense. Any increased expense in maintaining or operating the system resulting,
in Landlord's sole opinion, from such modification shall be paid by Tenant. In
addition, Tenant shall, at Tenant's expense, perform all maintenance on any
supplementary air conditioning units installed in accordance with this Section
8.01(a) unless, in the exercise of its right hereby expressly reserved, Landlord
elects to perform part or all of such maintenance at Tenant's expense. Tenant
agrees to keep and cause to be kept closed all entrance doors and windows and
window coverings in the Premises and at all times to cooperate fully with
Landlord in the operation of said system and to abide by all reasonable
regulations and requirements which Landlord may prescribe to permit the proper
functioning and protection of said heating, ventilation and air conditioning
systems. For purposes of this Lease, "Holidays" means those federal or state
holidays or such other days which Landlord, in its sole discretion, designates
to Tenant as "Holidays" for purposes of this Lease, such designation being
subject to change from time to time;
(b) Washroom facilities, not within the Premises (unless Tenant leases an
entire floor), for use by Tenant in common with other tenants in the Building;
(c) Janitor service in and about the Premises as customarily provided in
similar office buildings in the submarket area that the Building is located
within, Saturdays, Sundays and Holidays excepted; and
(d) Passenger elevator service in common with other tenants and occupants
daily during normal Building hours, and otherwise by card key access only.
Landlord shall provide limited freight elevator service at such times as
Landlord shall determine.
8.02 Government Restrictions. Tenant agrees that compliance with any
-----------------------
mandatory or voluntary energy conservation measures or other legal requirements
instituted by any appropriate governmental authority shall not be considered a
violation of any terms of this Lease and shall not entitle Tenant to terminate
this Lease or require abatement or reduction of Rent hereunder.
8.03 Utility Consumption. In the event of either (i) a change in the type
-------------------
of use of the Premises as permitted in Section 6.01 above or (ii) an increase in
intensity in use of the Premises beyond that permitted by Section 6.04 above,
the electrical current and other utility services consumed relative to the
Premises shall be separately metered and Tenant shall pay for the cost of
metering or submetering and all such electrical current and other utility
services directly to the utility company supplying said service. Tenant
acknowledges that it shall be responsible for making arrangements for and shall
pay the cost of the installation, repair and maintenance of its own telephone
and cabling system. At no time shall Tenant permit the use of any utility
service consumed in the Premises to exceed Tenant's proportionate share of the
capacity of feeders or service lines to the Building or the risers, wiring or
pipe installation. Landlord does not warrant or represent that such capacity
shall be adequate for Tenant's purposes. Landlord and Tenant hereby acknowledge
and agree that Landlord currently has the right and ability to select and
change, from time to time, the entity(ies) which provide electricity and other
utilities to the Building ("service provider"). Also, Tenant shall (i) cooperate
with, (ii) allow reasonable access to the Premises to and (iii) accept any and
all reasonable disturbances caused by Landlord or such service provider
regarding the utilities of the Building. Further, Landlord is not liable or
responsible for any loss, damage, or expense that Tenant may sustain or incur by
reason of any change, failure, interference, disruption, or defect in the
supply, quantity or character of the electric energy or other utility service
furnished to the Premises, and no such change, failure, defect, unavailability,
or unsuitability shall constitute an actual or constructive eviction, in whole
or in part, or entitle Tenant to any abatement or diminution of Rent, or relieve
Tenant from any of its obligations under the Lease.
11
8.04 Additional Services. Landlord shall in no event be obligated to
-------------------
furnish any services or utilities, other than those specified in Section 8.01.
If Landlord elects to furnish services or utilities requested by Tenant in
addition to those specified in Section 8.01 (including utility services at times
other than those specified), Tenant shall pay to Landlord, Landlord's then
prevailing rates for such services and utilities within ten (10) days after
receipt of Landlord's invoices therefor. If Tenant shall fail to make any such
payment, Landlord may, without notice to Tenant, and in addition to Landlord's
other remedies under this Lease, discontinue any or all of the additional
services. No failure to furnish or discontinuance of any service pursuant to
this Article 8 shall result in any liability of Landlord to Tenant or be deemed
to be a constructive eviction or a disturbance of Tenant's use of the Premises.
ARTICLE 9
LEASEHOLD IMPROVEMENTS; ALTERATIONS
9.01 Alterations. Tenant shall not, without Landlord's prior written
-----------
consent, permit any alteration, improvement, addition or installation in or to
the Premises (all of which is collectively referred to as "Work"), including
installation of telephone, computer or internal sound or paging systems or other
similar systems, or the performance of any decorating, painting and other
similar work in the Premises. Notwithstanding the foregoing, Landlord's consent
shall not be required for any Work which (i) is not visible from the exterior of
the Premises, (ii) costs less than $5,000.00 per year in the aggregate, (iii)
complies with any and all other requirements under this Lease, and (iv) does not
affect any structural portion of the Building or the Building's HVAC, plumbing,
electrical or mechanical portions of the Building. All Work requiring an
electrical or mechanical engineer or contractor shall be performed by a
mechanical or electrical engineer or contractor designated or approved by
Landlord in its sole discretion. All Work shall otherwise be performed by
contractors approved by Landlord, which approval shall not be unreasonably
withheld or delayed. Tenant shall pay the cost of preparation of the plans for
the Work, all permit fees and the fees of said contractors and subcontractors.
Except with respect to the Work described in the Work Letter, if any, or Work
performed by the designated or approved contractor as general contractor. Tenant
shall pay to Landlord an administration fee equal to five percent (5%) of the
total cost of such Work for any single job which costs under $500,000.00; four
and one half percent (4.5%) for any single job which costs from $500,000.00 to
$999,999.99; four percent (4%) for any single job which costs from $1,000,000.00
to $4,999,999.99; and three and one half percent (3.5%) for any single job which
costs in excess of $5,000,000.00. Before commencement of any Work or delivery of
any materials into the Premises or the Building, Tenant shall furnish to
Landlord, for its prior written approval, architectural plans and specifications
certified by a licensed architect or engineer reasonably acceptable to Landlord,
and such other documentation as Landlord shall reasonably request, including but
not limited to, documentation on electrical outlets, cabling, doors, and ceiling
plans. Tenant agrees to hold Landlord, its beneficiaries and their respective
agents, partners, officers, servants and employees forever harmless against all
claims and liabilities of every kind, nature and description which may arise out
of or in any way be connected with any such Work. At the request of Landlord,
Tenant will deliver a written indemnity against claims or damages to tenants or
occupants of any other premises affected by such Work. Tenant shall pay
Landlord's reasonable costs of reviewing plans and materials submitted to
Landlord for approval. Tenant shall pay the cost of all such Work and the cost
of decorating and altering the Premises and the Building occasioned by any such
Work. Landlord shall have the right to require Tenant's contractors to evidence
xxxxxxx'x compensation, general liability and other insurance coverage, as
reasonably required by Landlord. Prior to the commencement of any work in or
about the Premises, Tenant shall provide to Landlord a minimum of fifteen (15)
days' prior written notice, post the Premises with a notice of non-
responsibility in a form approved by Landlord, and shall take such other actions
as are required to avail itself and Landlord of any statutory protections
offered by the laws and statutes of Colorado. All alterations, improvements,
additions and installations to or in the Premises at Landlord's election shall
become part of the Premises at the time of installation.
9.02 Tenant's Work. In the event that Landlord permits Tenant to hire its
-------------
own contractors for the performance of any Work, then in addition to the
provisions of Section 9.01, the following shall apply: (i) prior to the
commencement of the Work or the delivery of any materials to the Building,
Tenant shall submit to Landlord for Landlord's approval, the names and addresses
of all contractors, contracts, necessary permits and licenses, certificates of
insurance (including, without limitation, Worker's Compensation,
12
comprehensive general liability and adequacy of design insurance) and
instruments of indemnification and waivers of lien against any and all claims,
costs, expenses, damages and liabilities which may arise in connection with the
Work, all in such form and amount as shall be satisfactory to Landlord; (ii)
unless Landlord agrees in writing, all such Work shall be memorialized by
architects and engineers designated or approved by Landlord in its sole
discretion and done only by contractors or mechanics approved by Landlord in its
reasonable discretion and at such time and in such manner as Landlord may from
time to time designate; (iii) upon completion of any Work, Tenant shall furnish
Landlord with as-built plans (both in hard copy and diskette, along with the
architect's acknowledgment that such plans are the property of Landlord),
contractors' affidavits, full and final waivers of lien, receipted bills
covering all labor and materials expended and used in connection with such Work,
and (iv) all such Work shall comply with all insurance requirements, all laws,
ordinances, rules and regulations of all governmental authorities, and all
collective bargaining agreements applicable to the Building, and shall be done
in a good and workmanlike manner and with the use of new, quality grade
materials.
9.03 No Mechanic's Liens. Without limitation of the provisions of Section
-------------------
9.01, Tenant agrees not to suffer or permit any lien of any mechanic or
materialman to be placed or filed against the Premises or the Building. In case
any such lien shall be filed, Tenant shall immediately satisfy and release such
lien of record, or at Tenant's sole cost and expense, provide a lien and
completion bond in an amount equal to one and one-half times the estimated cost
of such improvements, to insure Landlord against any liability for mechanic's
liens and to insure completion of the work. If Tenant shall fail to have such
lien immediately satisfied and released of record, Landlord may, on behalf of
Tenant, without being responsible for making any investigation as to the
validity of such lien and without limiting or affecting any other remedies
Landlord may have, pay the same and Tenant shall pay Landlord on demand the
amount so paid by Landlord.
9.04 Removal of Tenant's Property. Subject to the rules and regulations,
----------------------------
Tenant, at any time Tenant is not in default hereunder, may remove from the
Premises its movable trade fixtures and personal property. Tenant shall repair
any damage to the Premises caused by such removal, failing which Landlord may
remove the same and repair the Premises and Tenant shall pay the cost thereof to
Landlord on demand.
ARTICLE 10
CONDITION OF PREMISES
10.01 Premises Condition. No agreements or representations, except such
------------------
as are expressly contained herein and in the Work Letter attached hereto, if
any, have been made to Tenant respecting the condition of the Premises. By
taking possession, Tenant conclusively waives all claims relating to the
condition of the Premises and accepts the Premises as being free from defects
and in good, clean and sanitary order, condition and repair, and agrees to keep
the Premises in such condition, ordinary wear and tear excepted.
10.02 Care of the Premises. Subject to Article 12, Tenant shall, at its
--------------------
own expense, keep the Premises clean and safe and in as good repair and
condition as when all of the work described in the Work Letter was completed (or
as to subsequent Work, as and when such Work was completed, ordinary wear and
tear excepted) and shall promptly and adequately repair all damage to the
Premises and the Building caused by Tenant or any of its employees, agents,
guests or invitees, including replacing or repairing all damaged or broken
glass, fixtures and appurtenances resulting from any such damage, under the
supervision and with the approval of Landlord. If Tenant does not promptly and
adequately make such repairs or replacements, Landlord may, but need not, make
such repairs and replacements and Tenant shall pay Landlord the cost thereof on
demand. Tenant, at its sole expense, shall comply with all laws, orders and
regulations of federal, state, county and municipal authorities and with any
directive of any public officer or officers pursuant to law which shall impose
any violation, order or duty upon Landlord or Tenant with respect to the
Premises or the use or occupation thereof. Tenant shall not do or permit to be
done any act or thing in, on or about the Premises or store anything therein
which (i) will in any way conflict with any law, statute, ordinance or
governmental rule or regulation now in force or which may hereafter be enacted
or promulgated, (ii) is not appropriate to the permitted use of the Premises,
(iii) will in any way increase the existing rate of, or adversely affect, or
cause a cancellation of, any fire or other insurance
13
policies covering the Building or any of its contents, or (iv) constitutes a
nuisance or will disturb or interfere with the quiet enjoyment by other tenants
of their premises.
10.03 Care of the Building. Landlord, subject to Articles 12 and 14, shall
--------------------
be obligated only to maintain and make necessary repairs to the structural
elements of the Building, the public corridors, public washrooms and lobby of
the Building, the exterior windows of the Building, and subject to the
provisions of Articles 8, 12 and 14, the electrical, plumbing, heating,
ventilation and air conditioning systems of the Building.
ARTICLE 11
SURRENDER OF THE PREMISES
11.01 Surrender. At the termination of this Lease, by lapse of time or
---------
otherwise, or the termination of possession of any part thereof as otherwise
provided for herein, Tenant shall surrender possession of the Premises to
Landlord and deliver all keys or other access means to the Premises or the
Building and all locks therein to Landlord and make known to Landlord the
combination of all combination locks in the Premises, and shall, subject to
Articles 12 and 13, return the Premises and all equipment and fixtures of
Landlord therein to Landlord in broom clean condition and in as good condition
as when Tenant originally took possession, ordinary wear and tear excepted,
failing which Landlord may restore the Premises and such equipment and fixtures
to such condition and Tenant shall pay the cost thereof to Landlord on demand.
11.02 Removal of Fixtures. Upon termination of this Lease or of Tenant's
-------------------
right to possession of the Premises, by lapse of time or otherwise, all
installations, additions, partitions, hardware, light fixtures, floor coverings,
non-trade fixtures and improvements, temporary or permanent, whether placed
there by Tenant or Landlord, shall be Landlord's property and shall remain upon
the Premises, all without compensation, allowance or credit to Tenant; provided,
however, that if prior to any such termination or within thirty (30) days
thereafter Landlord so directs by notice, Tenant, at Tenant's sole expense,
shall promptly remove such of the installations, additions, partitions,
hardware, light fixtures, floor coverings, non-trade fixtures and improvements
in or to the Premises by or on behalf of Tenant as are designated in such notice
and repair any damage to the Premises caused by such removal, failing which
Landlord may remove the same and repair the Premises, and Tenant shall pay the
cost thereof to Landlord on demand.
11.03 Survival. All obligations of Tenant under this Article 11 shall
--------
survive the expiration or earlier termination of this Lease.
ARTICLE 12
DAMAGE OR DESTRUCTION
12.01 Minor Insured Damage. In the event the Premises or the Building, or
--------------------
any portion thereof, is damaged or destroyed by any casualty that is covered by
the insurance maintained by Landlord, then Landlord shall rebuild, repair and
restore the damaged portion thereof, provided that (i) the amount of insurance
proceeds available to Landlord equals or exceeds the cost of such rebuilding,
restoration and repair, (ii) such rebuilding, restoration and repair can be
completed within one hundred eighty (180) days after the work commences in the
opinion of a registered architect or engineer appointed by Landlord, (iii) the
damage or destruction has occurred more than twelve (12) months before the
expiration of the Term and (iv) such rebuilding, restoration, or repair is then
permitted, under applicable governmental laws, rules and regulations, to be done
in such a manner as to return the damaged portion thereof to substantially its
condition immediately prior to the damage or destruction, including, without
limitation, the same net rentable floor area. To the extent that insurance
proceeds must be paid to a mortgagee or beneficiary under, or must be applied to
reduce any indebtedness secured by, a mortgage or deed of trust encumbering the
Premises or Building, such proceeds, for the purposes of this subsection, shall
be deemed not available to Landlord unless such mortgagee or beneficiary permits
Landlord to use such proceeds for the rebuilding, restoration, and repair of the
damaged portion thereof. Notwithstanding the foregoing, Landlord shall have no
obligation to repair any damage to, or to replace any of, Tenant's personal
property, furnishings, trade fixtures, equipment or other such property or
effects of Tenant.
14
12.02 Major or Uninsured Damage. In the event the Premises or the
-------------------------
Building, or any portion thereof, is damaged or destroyed by any casualty to the
extent that Landlord is not obligated, under Section 12.01 above, to rebuild,
repair or restore the damaged portion thereof, then Landlord shall within sixty
(60) days after such damage or destruction, notify Tenant of its election, at
its option, to either (i) rebuild, restore and repair the damaged portions
thereof, in which case Landlord's notice shall specify the time period within
which Landlord estimates such repairs or restoration can be completed; or (ii)
terminate this Lease effective as of the date the damage or destruction
occurred. If Landlord does not give Tenant written notice within sixty (60)
days after the damage or destruction occurs of its election to rebuild or
restore and repair the damaged portions thereof, Landlord shall be deemed to
have elected to terminate this Lease. Notwithstanding the foregoing, if
Landlord does not elect to terminate this Lease, Tenant may terminate this Lease
if either (i) Landlord notifies Tenant that such repair or restoration cannot be
completed within three hundred and sixty-five (365) days after the work is
commenced or (ii) the damage or destruction occurs within the last twelve (12)
months of the Term, unless Tenant's actions or omissions are the cause of the
damage. If Tenant has the right to terminate the Lease in accordance with the
above provisions, Tenant may so elect by written notice to Landlord which must
be given within fifteen (15) days after Tenant's receipt of Landlord's notice of
its election to rebuild. Upon Landlord's receipt of such notice, the
termination shall be effective as of the date the destruction occurred.
12.03 Abatement of Rent. Except as otherwise expressly provided herein,
-----------------
there shall be an abatement of rent by reason of damage to or destruction of the
Premises or the Building, or any portion thereof, to the extent that the floor
area of the Premises cannot be reasonably used by Tenant for conduct of its
business, in which event the Monthly Base Rent shall xxxxx proportionately
according to (i) or (ii) above, as appropriate, commencing on the date that the
damage to or destruction of the Premises or Building has occurred, and except
that, if Landlord or Tenant elects to terminate this Lease as provided in
Paragraph 12.02 above, no obligation shall accrue under this Lease after such
termination. Notwithstanding the provisions of this Section, if any such damage
is due to the fault or neglect of Tenant, any person claiming through or under
Tenant, or any of their employees, suppliers, shippers, servants, customers or
invitees, then there shall be no abatement of rent by reason of such damage,
unless and until Landlord is reimbursed for all of such abatement pursuant to
any rental insurance policy that Landlord may, in its sole discretion, elect to
carry. Tenant's right to terminate this Lease in the event of any damage or
destruction to the Premises or Building, is governed by the terms of this
Section and therefore Tenant hereby expressly waives the provisions of any and
all laws, whether now or hereafter in force, and whether created by ordinance,
statute, judicial decision, administrative rules or regulations, or otherwise,
that would cause this Lease to be terminated, or give Tenant a right to
terminate this Lease, upon any damage to or destruction of the Premises or
Building that occurs.
12.04 Waiver. Tenant waives the provisions of any present or future laws
------
or case decisions regarding damage, destruction, repair or restoration of the
Premises and/or Building and agrees that the provisions of this Article 12 shall
control to the same effect. Upon completion of such repair or restoration,
Tenant shall promptly refixture the Premises substantially to the condition they
were in prior to the casualty and shall reopen for business if closed by the
casualty.
ARTICLE 13
EMINENT DOMAIN
13.01 Condemnation of the Premises. In the event that the whole or a
----------------------------
substantial part of the Premises shall be condemned or taken in any manner for
any public or quasi-public use (or sold under threat of such taking), and as a
result thereof, the remainder of the Premises cannot be used for the same
purpose as prior to such taking, the Lease shall terminate as of the date
possession is taken; provided, however, if Landlord elects to make comparable
space in the Building available to Tenant under the same Rent and terms as
herein provided, Tenant shall accept such space and this Lease shall then apply
to such space.
13.02 Partial Condemnation of the Premises. If less than a substantial
------------------------------------
part of the Premises shall be so condemned or taken (or sold under threat
thereof) and after such taking the Premises can be
15
used for the same purposes as prior thereto, the Lease shall cease only as to
the part so taken as of the date possession shall be taken by such authority,
and Tenant shall pay full Rent up to that date (with appropriate refund by
Landlord of such Rent attributable to the part so taken as may have been paid in
advance for any period subsequent to the date possession is taken) and
thereafter Monthly Base Rent and Adjustments shall be equitably adjusted to
reflect the reduction in the Premises by reason of such taking, Landlord shall,
at its expense, make all necessary repairs or alterations to the Building so as
to constitute the remaining Premises a complete architectural unit, provided
that Landlord shall not be obligated to undertake any such repairs or
alterations if the cost thereof exceeds the award resulting from such taking.
13.03 Building Condemnation. If part of the Building shall be so condemned
---------------------
or taken (or sold under threat thereof), or if any adjacent property or street
shall be condemned or improved by a public or quasi-public authority in such a
manner as to alter the use of any part of the Premises or the Building and, in
the opinion of Landlord, the Building or any part thereof should be altered,
demolished or restored in such a way as to materially alter the Premises,
Landlord may terminate this Lease by notifying Tenant of such termination within
sixty (60) days following the taking of possession by such public or quasi-
public authority, and this Lease shall expire on the date specified in the
notice of termination, which shall be not less than sixty (60) days after the
giving of such notice, as fully and completely as if such date were the date
herein before set forth as the expiration of the Term, and the Monthly Base Rent
and Adjustments hereunder shall be apportioned as of such date.
13.04 Award. Landlord shall be entitled to receive the entire award,
-----
including the damages for the property taken and damages to the remainder, with
respect to any condemnation proceedings affecting the Building or to any
proceeds from a sale or transfer in lieu thereof. Tenant shall not be entitled
to any award or proceeds from Landlord or the condemning authority for the value
of any unexpired portion of the Term, the loss of profits, goodwill, leasehold
improvements or otherwise, Tenant irrevocably assigning any and all such claims
to Landlord. Tenant shall have the right to prosecute a claim directly against
the condemning authority for its trade fixtures and relocation costs, provided
that no such claim shall diminish or otherwise adversely affect Landlord's
claims and the claims of any mortgagees, ground lessors or owners of any
interest in the Building.
ARTICLE 14
RELEASE, WAIVER AND INDEMNIFICATION
14.01 Release. To the extent not expressly prohibited by law, Tenant
-------
releases Landlord, its beneficiaries, mortgagees, stockholders, agents
(including, without limitation, management agents), partners, officers, servants
and employees, and their respective agents, partners, officers, servants and
employees ("Related Parties"), from and waives all claims for damages to person
or property sustained by Tenant or by any occupant of the Premises, the
Building, or by any other person, resulting directly or indirectly from fire or
other casualty, any existing or future condition, defect, matter or thing in the
Premises, the Building, or any portions thereof, or from any equipment or
appurtenance therein, or from any accident in or about the Building, or from any
act of neglect of any tenant or other occupant of the Building or of any other
person, other than Landlord or its agents.
14.02 Tenant's Indemnification. To the extent not expressly prohibited by
------------------------
law, Tenant agrees to hold harmless and indemnify Landlord and Landlord's
Related Parties from and against claims and liabilities, including reasonable
attorneys' fees, (i) for injuries to all persons and damage to or theft or
misappropriation or loss of property occurring in or about the Premises arising
from Tenant's occupancy of the Premises or the conduct of its business, or from
activity, work, or thing done, permitted or suffered by Tenant, its employees,
agents, guests or invitees in or about the Premises and Building, or (ii) from
any breach or default on the part of Tenant in the performance of any covenant
or agreement on the part of Tenant to be performed pursuant to the terms of this
Lease or (iii) due to any other act or omission of Tenant, its agents,
employees, guests or invitees, or (iv) if any person, not a party to this Lease,
shall institute an action against Tenant in which Landlord or Landlord's Related
Parties shall be made a party. Landlord may, at its option, repair such damage
or replace such loss, and Tenant shall upon demand by Landlord reimburse
Landlord for all costs of such repairs, replacement and damages in excess of
amounts, if any, paid to Landlord under insurance covering such damages. In the
event any action or proceeding is
16
brought against Landlord or Landlord's Related Parties by reason of any such
claims, then, upon notice from Landlord, Tenant covenants to defend such action
or proceeding by counsel reasonably satisfactory to Landlord.
14.03 Tenant's Fault. If any damage to the Building or any equipment or
--------------
appurtenance therein, whether belonging to Landlord or to other tenants in the
Building, results from any act or neglect of Tenant, its agents, employees,
guests or invitees, Tenant shall be liable therefor and Landlord may, at
Landlord's option repair such damage, and Tenant shall, upon demand by Landlord,
reimburse Landlord the total cost of such repairs and damages to the Building.
If Landlord elects not to repair such damage, Tenant shall promptly repair such
damages at its own cost and in accordance with the provisions of Sections 9.02
and 9.03 as if such repair constituted Work under such Sections. If Tenant
occupies space in which there is exterior or interior glass, then Tenant shall
be responsible for the damage, breakage or repair of such glass, except to the
extent such loss or damage is recoverable under Landlord's insurance, if any.
14.04 Landlord's Indemnification. Subject only to Section l4.0l above and
--------------------------
Section l4.05 below, Landlord agrees to indemnify, defend and hold Tenant and
its officers, directors, partners and employees harmless from and against all
liabilities, losses, demands, actions, expenses or claims, including attorneys'
fees and court costs but excluding consequential damages, for injury to or death
of any person or for damage to any property to the extent such are determined to
be caused by the gross negligence or willful misconduct of Landlord, its agents,
employees, or contractors in or about the Premises or Building. None of the
events or conditions set forth in this Section shall be deemed a constructive or
actual eviction or entitle Tenant to any abatement or reduction of Rent.
14.05 Limitations on Landlord's Liability. Tenant agrees that in the
-----------------------------------
event Tenant shall have any claim against Landlord or Landlord's Related Parties
under this Lease arising out of the subject matter of this Lease, Tenant's sole
recourse shall be against Landlord's interest in the Building, for the
satisfaction of any claim, judgment or decree requiring the payment of money by
Landlord or Landlord's Related Parties as a result of a breach hereof or
otherwise in connection with this Lease, and no other property or assets of
Landlord, Landlord's Related Parties or their successors or assigns, shall be
subject to the levy, execution or other enforcement procedure for the
satisfaction of any such claim, judgment, injunction or decree.
ARTICLE 15
INSURANCE; WAIVER OF SUBROGATION
15.01 Tenant's Insurance. Tenant shall procure and maintain at its own
------------------
cost policies of comprehensive general public liability and property damage
insurance with contractual liability coverage for the agreements of indemnity
provided for under this Lease and a broad form general liability endorsement to
afford protection with such limits as may be reasonably requested by Landlord
from time to time (which as of the date hereof shall be not less than
$3,000,000 under a combined single limit of coverage) insuring Landlord and
Landlord's Related Parties from all claims, demands or actions for injury to or
death of any person or persons and for damage to property made by, or on behalf
of, any person or persons, firm or corporation, arising from, related to or
connected with the Premises. The insurance shall be issued by companies and be
in form and substance satisfactory to Landlord and any mortgagee of the
Building and shall name Landlord and Landlord's Managing Agent (and, if
requested by Landlord or any mortgagee, include any mortgagee) and their
respective agents and employees as additional insureds. The aforesaid
insurance policies shall provide that they shall not be subject to cancellation
except after at least thirty (30) days' prior written notice to Landlord and
all such mortgagees (unless such cancellation is due to non-payment of
premiums, in which event ten (10) days' prior written notice shall be
required). The original insurance policies (or certificates thereof
satisfactory to Landlord), together with satisfactory evidence of payment of
the premium thereon, shall be deposited with Landlord prior to the commencement
of the Term and renewals thereof not less than thirty (30) days prior to the
end of the term of each such coverage.
15.02 Casualty Insurance. Tenant shall carry insurance of the type
------------------
typically referred to as "all risk" insurance, including water damage, insuring
its interest in the tenant improvements in the Premises (to
17
the extent not covered by Landlord's property insurance) and its interest in all
its personal property and trade fixtures located on or within the Building,
including, without limitation, its office furniture, equipment and supplies.
15.03 Waiver of Subrogation. Notwithstanding any other provision of this
---------------------
lease to the contrary, Landlord and Tenant each hereby waive all rights of
action against the other for loss or damage to the Premises, or the Building and
property of Landlord and Tenant in the Building, which loss or damage is insured
or is required pursuant to this Lease to be insured by valid and collectible
insurance policies to the extent of the proceeds collected or collectible under
such insurance policies, subject to the condition that this waiver shall be
effective only when the waiver is permitted by such insurance policies or when,
by the use of good faith effort, such waiver could have been permitted in the
applicable insurance policies. The policies of insurance required to be
maintained by Tenant under the terms of this Lease shall contain waiver of
subrogation clauses in form and content satisfactory to Landlord.
15.04 Increased Costs. Tenant shall not conduct or permit to be conducted
---------------
by its employees, agents, guests or invitees any activity, or place any
equipment in or about the Premises or the Building that will in any way increase
the cost of fire insurance or other Landlord insurance on the Building. If any
increase in the cost of fire insurance or other insurance is stated by any
insurance company or by the applicable Insurance Rating Bureau, if any, to be
due to any activity or equipment of Tenant in or about the Premises or the
Building, such statement shall be conclusive evidence that the increase in such
cost is due to such activity or equipment and, as a result thereof, Tenant shall
be liable for the amount of such increase. Tenant shall reimburse Landlord for
such amount upon written demand from Landlord and any such sum shall be
considered additional Rent payable hereunder. Tenant, at its sole expense,
shall comply with any and all requirements of any insurance organization or
company necessary for the maintenance of reasonable fire and public liability
insurance covering the Premises and the Building.
ARTICLE 16
LANDLORD'S RIGHT OF ACCESS
16.01 Entry Into Premises. Landlord and its contractors and
-------------------
representatives shall have the right to enter the Premises at all reasonable
times to perform janitorial and cleaning services and, after verbal notice
(except in the case of emergencies), to inspect the same, to make repairs,
alterations and improvements, to maintain the Premises and the Building,
specifically including, but without limiting the generality of the foregoing, to
make repairs, additions or alterations within the Premises to mechanical,
electrical and other facilities serving other premises in the Building, to post
such reasonable notices as Landlord may desire to protect its rights, to exhibit
the Premises to mortgagees and purchasers, and to exhibit the Premises to
prospective tenants. In the event the Premises are vacant, Landlord may place
upon the doors or in the windows of the Premises any usual or ordinary "To Let,"
"To Lease," or "For Rent" signs. Tenant shall permit Landlord to erect, use,
maintain and repair pipes, cables, conduit, plumbing, vents and wires, in, to
and through the Premises to the extent Landlord may now or hereafter deem
necessary or appropriate for the proper operation, maintenance and repair of the
Building and any portion of the Premises.
16.02 Landlord's Repairs. Landlord shall also have the right to take all
------------------
material into the Premises that may be required for the purposes set forth in
the foregoing Section 16.01 without the same constituting a constructive
eviction of Tenant, in whole or in part, and Rent shall not xxxxx (except as
provided in Article 12) while said repairs, alterations, improvements or
additions are being made, by reason of loss or interruption of business of
Tenant, or otherwise. If Tenant shall not be personally present to open and
permit entry into the Premises, at any time, when for any reason entry therein
shall be necessary or desirable, Landlord or Landlord's agents may enter the
Premises by a master key, or may forcibly enter the same, without rendering
Landlord or such agents liable therefor (if during such entry Landlord or
Landlord's agents shall accord reasonable care to Tenant's property), and
without in any manner affecting the obligations and covenants of this Lease.
18
16.03 Minimize Interference. In exercising its rights under this Article
---------------------
16, Landlord will use reasonable efforts to minimize any interference with
Tenant's use or occupancy of the Premises, provided that Landlord will not be
obligated to provide overtime labor or perform work after regular Building
hours.
ARTICLE 17
RIGHTS RESERVED TO LANDLORD
Landlord shall have the following rights exercisable without notice and
without liability to Tenant for damage or injury to property, person or business
(all claim's for damage being hereby waived and released by Tenant) and without
effecting an eviction or disturbance of Tenant's use or possession or giving
rise to any claim for set-offs or abatement of Rent:
(a) To change the name or street address of the Building or the suite
number of the Premises;
(b) To install and maintain signs on the exterior and interior of the
Building;
(c) To designate all sources furnishing sign painting and lettering,
towels, coffee cart service, vending machines or toilet supplies used or
consumed on the Premises and the Building;
(d) To have pass keys to the Premises;
(e) To grant to anyone the exclusive right to conduct any business or
render any service in the Building, provided such exclusive right shall not
operate to exclude Tenant from the use expressly permitted by this Lease;
(f) To make repairs, additions or alterations to the Building which
may change, eliminate or remove common areas, parking areas, if any, or the
method of ingress to or egress from the Building and such areas, to convert
common areas into leasable areas, or otherwise alter, repair or reconstruct the
common areas or change the use thereof, to change the arrangement or location of
entrances or passageways, doors and doorways, corridors, elevators, stairs,
toilets or other public parts of the Building, and to close entrances, doors,
corridors, elevators, plaza or other facilities, and to perform any acts related
to the safety, protection, preservation, reletting, sale or improvement of the
Premises or the Building;
(g) To have access to all mail chutes or boxes according to the rules
of the United States Postal Service;
(h) To require all persons entering or leaving the Building during
such hours as Landlord may from time to time reasonably determine to identify
themselves to security personnel by registration or otherwise, and to establish
their right to enter or leave and to exclude or expel any peddler, solicitor or
beggar at any time from the Premises or the Building;
(i) To close the Building at 6:00 p.m. on weekdays, 12:00 p.m. on
Saturdays, and all day on Sundays and Holidays, or at such other reasonable
times as Landlord may determine, subject, however, to Tenant's right to
admittance under such regulations as shall be prescribed from time to time by
Landlord in its sole discretion.
Notwithstanding the terms and conditions of Section 17(f) or any
other provision of the Lease to the contrary, Tenant hereby acknowledges that
Landlord may, at its option, make alterations and remodel the Building and
otherwise renovate the Building including, without limitation, the front
entrance, lobby and the portion of the basement and during any such period of
remodeling Landlord may prohibit access to or through such affected areas, so
long as Landlord provides alternate access to the Premises. Tenant accepts any
inconvenience caused by such alterations and remodeling.
19
ARTICLE 18
ABANDONMENT
Tenant shall not abandon the Premises at any time during the Term. Any
re-entry by Landlord following abandonment by Tenant shall not, unless Landlord
elects in a written notice to Tenant, constitute or be deemed to constitute
acceptance by Landlord of a surrender of this Lease, but rather, upon such
abandonment, Tenant's right to possession of the Premises shall cease, but
Tenant shall remain liable for all of its obligations under this Lease. Without
limitation of the foregoing, upon any such abandonment, Landlord shall have the
remedies provided for in Article 21 below. If Tenant shall abandon or surrender
the Premises or be dispossessed by process of law or otherwise during the Term
or at termination of the Term, any personal property left on the Premises shall
be deemed to be abandoned at the option of Landlord and, at the election of
Landlord evidenced by written notice to Tenant thereof, title thereto shall pass
to Landlord under this Lease as a xxxx of sale. For purposes of this Lease, and
at the option of Landlord, the Premises shall be deemed vacated or abandoned if
Tenant, or an agent or employee of Tenant, shall not have conducted Tenant's
ordinary business upon the Premises during any period of fifteen (15)
consecutive days, or shall have transferred all or substantially all of its
personnel, furniture and fixtures from the Premises without replacement, or
telephone service to the Premises, as such service has been customarily provided
to the Premises, is no longer subscribed for or provided to the Premises.
ARTICLE 19
TRANSFER OF LANDLORD'S INTEREST
As used in this Lease, the term "Landlord" means only the current owner of
the fee title to the Building or the leasehold estate under a ground lease of
the Building at the time in question. Each Landlord is obligated to perform the
obligations of Landlord under this Lease only during the time such Landlord owns
such interest or title. Any Landlord who transfers its title or interest in the
Building is relieved of all liabilities for the obligations of Landlord under
this Lease to be performed on or after the date of transfer. Tenant agrees to
look solely to the transferee with respect to all matters in connection with
this Lease.
ARTICLE 20
TRANSFER OF TENANT'S INTEREST
20.01 Landlord's Consent. Tenant shall not sell, assign, encumber,
------------------
mortgage or transfer this Lease or any interest therein, sublet or permit the
occupancy or use by others of the Premises or any part thereof, or allow any
transfer hereof of any lien upon Tenant's interest by operation of law or
otherwise (collectively, a "Transfer") without the prior written consent of
Landlord, given or withheld, in its reasonable discretion. Any Transfer which
is not in compliance with the provisions of this Article 20 shall, at the option
of Landlord, be void and of no force or effect. Tenant shall, by written notice
in the form specified in the following sentence, advise Landlord of Tenant's
intention on a stated date (which shall not be less than sixty (60) days after
date of Tenant's notice) to sublet, assign, mortgage or otherwise Transfer any
part or all of the Premises or its interest therein for the balance or any part
of the Term, and, in such event, Landlord shall have the right, to be exercised
by giving written notice to Tenant within thirty (30) days after receipt of
Tenant's notice, to recapture the space described in Tenant's notice and such
recapture notice shall, if given, cancel and terminate this Lease with respect
to the space therein described as of the date stated in Tenant's notice.
Tenant's notice shall provide Landlord with (i) the name and address of the
proposed subtenant, assignee, pledgee, mortgagee or transferee, (ii) a
reasonably detailed description of such person or entity's business, (iii)
detailed financial references and certified, audited financial statements for
such person or entity, (iv) a true and complete copy of the proposed sublease,
assignment, pledge, mortgage or other conveyance and all related documentation,
and (v) such other information as Landlord may reasonably require.
If Tenant's notice shall cover all of the space hereby demised, and
Landlord shall elect to give the aforesaid recapture notice with respect
thereto, then the Term shall expire and end on the date stated in Tenant's
notice as fully and completely as if that date had been herein definitely fixed
for the expiration of the Term. If, however, this Lease is terminated pursuant
to the foregoing with respect to less
20
than the entire Premises, the Monthly Base Rent and Adjustments then in effect
shall be adjusted on the basis of the number of rentable square feet retained by
Tenant in proportion to the original Area of the Premises, and this Lease as so
amended shall continue thereafter in full force and effect. In such event,
Tenant shall pay the cost of erecting demising walls and public corridors and
making other required modifications to physically separate the portion of the
Premises remaining subject to this Lease from the rest of the Premises,
including all electrical and mechanical services and changes to effect such
separation. If Landlord, upon receiving Tenant's notice that it intends to
sublet or assign any such space, shall not exercise its right to recapture the
space described in Tenant's notice, Landlord will, as herein above provided,
determine whether to approve Tenant's request to sublet or assign the space
covered by its notice. Without limiting Landlord's right to withhold such
consent, the withholding of such consent may be based upon, but not limited to,
the following:
(a) In the reasonable judgment of Landlord, the subtenant or assignee (A)
is of a character or engaged in a business or proposes to use the Premises in a
manner which is not in keeping with the standards of Landlord for the Building
or (B) has an unfavorable reputation or credit standing;
(b) Either the area of the Premises to be sublet or the remaining area of
the Premises is not regular in shape with appropriate means of ingress or egress
suitable for normal renting purposes;
(c) Tenant is in Default under this Lease at the time of requesting such
consent or at any time thereafter, it being expressly understood that if Tenant
is in Default under this Lease at any time after granting permission for a
Transfer, Landlord may withdraw any previously granted consent for such
Transfer;
(d) The proposed assignee or subtenant or any person or entity which
directly or indirectly controls, is controlled by or is under common control
with the proposed assignee or subtenant, is then an occupant or tenant of any
other space in the Building;
(e) The proposed sublessee or assignee is a person or entity with whom
Landlord is then negotiating to lease space in the Building;
(f) The proposed assignment or sublease instrument does not have the
substance or form which is reasonably acceptable to Landlord.
If Landlord consents to such sublet or assignment, such consent shall be
expressly contingent upon Tenant's payment to Landlord, as Rent, Landlord's
costs and expenses incurred in connection therewith, including, but not limited
to, attorney's fees and Landlord's construction supervision fee, if applicable.
20.02 Excess Rent. If Tenant individually, or as debtor or debtor in
-----------
possession or if a trustee in bankruptcy acting on behalf of Tenant pursuant to
the Bankruptcy Code, 11 U.S.C. 101 et seq., shall sublet or assign the Premises
or any part thereof or assign any interest in this Lease at a rental rate (or
additional consideration) in excess of the then current Monthly Base Rent and
Adjustments per rentable square foot, fifty percent (50%) of said excess Rent
(or additional consideration) shall be and become the property of Landlord and
shall be paid to Landlord as it is received by Tenant, less Tenant's reasonable
brokerage (excluding commissions paid to brokers who are Tenant's affiliates),
legal and other expenses ("Tenant's Costs") incurred in connection with such
assignment or, in the case of a sublease, less the monthly pro rata share of
such Tenant's Costs as determined by dividing such Tenant's Costs by the number
of months in the term of such sublease. If Tenant shall sublet the Premises or
any part thereof, Tenant shall be responsible for all actions and neglect of the
subtenant and its officers, partners, employees, agents, guests and invitees as
if such subtenant and such persons were employees of Tenant. Nothing in this
Section 20.02 shall be construed to relieve Tenant from the obligation to obtain
Landlord's prior written consent to any proposed sublease.
20.03 No Waiver. The consent by Landlord to any Transfer shall not be
---------
construed as a waiver or release of Tenant from liability for the performance of
all covenants and obligations to be performed by Tenant under this Lease, and
Tenant shall remain liable therefor, nor shall the collection or acceptance of
21
Rent from any assignee, subtenant or occupant constitute a waiver or release of
Tenant from any of its obligations or liabilities under this Lease. Any consent
given pursuant to this Article 20 shall not be construed as relieving Tenant
from the obligation of obtaining Landlord's prior written consent to any
subsequent assignment or subletting.
20.04 Included Transfers. If Tenant is a partnership, a withdrawal or
------------------
change, whether voluntary, involuntary or by operation of law or in one or more
transactions, of partners owning a controlling interest in Tenant shall be
deemed a voluntary assignment of this Lease and subject to the provisions of
this Article 20. If Tenant is a corporation, any dissolution, merger,
consolidation or other reorganization of Tenant, or the sale, transfer or
redemption of a controlling interest of the capital stock of Tenant in one or
more transactions, shall be deemed a voluntary assignment of this Lease and
subject to the provisions of this Article 20; provided, however, that the
preceding sentence shall not apply to corporations, the stock of which is listed
on a national or regional stock exchange and offered to the public for sale in
an initial public offering or is otherwise traded through a national or regional
exchange or over-the-counter. Further, provided Tenant is not then in Default,
Tenant remains primarily liable under this Lease, Tenant provides prior written
notice to Landlord, and Tenant otherwise meets the requirements set forth
herein, then Tenant may make a Transfer without Landlord's prior written consent
to (a) an entity resulting from consolidation, merger or reorganization by or
with Tenant, provided that the surviving entity has a net worth and owner's
equity equal or greater to that of Tenant immediately preceding the
consolidation, merger or reorganization, or (b) to any purchaser of all or
substantially all of the assets or ownership interest of Tenant, provided that
the net worth of the acquiring entity is equal to or greater than the net worth
and owner's equity is equal to or greater than that of Tenant immediately
preceding the Transfer. Neither this Lease nor any interest therein nor any
estate created thereby shall pass by operation of law or otherwise to any
trustee, custodian or receiver in bankruptcy of Tenant or any assignee for the
assignment of the benefit of creditors of Tenant.
ARTICLE 21
DEFAULT; LANDLORD'S RIGHTS AND REMEDIES
21.01 Default. The occurrence of any one or more of the following matters
-------
constitutes a default ("Default") by Tenant under this Lease:
(a) Failure by Tenant to pay, within five (5) days after the due date,
any Rent or any other amounts due and payable by Tenant under this Lease;
(b) Failure by Tenant to observe or perform any of the covenants in this
Lease in respect to assignment and subletting;
(c) Abandonment or vacation of the Premises as prohibited in Article 18;
(d) Failure by Tenant to cure forthwith, after notice thereof from
Landlord or another tenant acquiring knowledge thereof, any hazardous condition
that Tenant has created in violation of law or of this Lease;
(e) Failure by Tenant to observe or perform any other covenant,
agreement, condition or provision of this Lease, if such failure shall continue
for fifteen (15) days after written notice thereof to Tenant by Landlord;
(f) The levy upon execution of the attachment by legal process of the
leasehold interest of Tenant, or the filing or creation of a lien in respect of
such leasehold interest;
(g) Tenant or any guarantor of this Lease becomes insolvent or bankrupt
or admits in writing its inability to pay its debts as they mature, makes an
assignment for the benefit of creditors, or applies for or consents to the
appointment of a trustee or receiver for itself or for all or a part of its
property;
22
(h) Proceedings for the appointment of a trustee, custodian or receiver
of Tenant or any guarantor of this Lease or for all or a part of Tenant's or
such guarantor's property are filed against Tenant or such guarantor and are not
dismissed within thirty (30) days;
(i) Proceedings in bankruptcy, or other proceedings for relief under any
law for the relief of debtors, are instituted by or against Tenant or any
guarantor of this Lease, and, if instituted against Tenant or such guarantor,
are allowed against either or are consented to by either or are not dismissed
within sixty (60) days thereof; and
(j) Tenant shall repeatedly default in the timely payment of Rent or any
other charges required to be paid, or shall repeatedly default in keeping,
observing or performing any other covenant, agreement, condition or provision of
this Lease, whether or not Tenant shall timely cure any such payment or other
default. For the purposes of this subsection, the occurrence of similar defaults
three (3) times during any twelve (12) month period shall constitute a repeated
default.
Any notice periods provided for under this Article 21.01 shall run concurrently
with any statutory notice periods, and any notice given hereunder may be given
simultaneously with or incorporated into any such statutory notice.
21.02 Landlord's Remedies. If a Default occurs, Landlord shall have the
-------------------
following rights and remedies, which shall be distinct, separate and cumulative,
and which may be exercised by Landlord concurrently or consecutively in any
combination and which shall not operate to exclude or deprive Landlord of any
other right or remedy which Landlord may have in law or equity:
(a) Landlord may terminate this Lease by giving to Tenant notice of
Landlord's intention to do so, in which event the Term shall end, and all right,
title and interest of Tenant hereunder shall expire, on the date stated in such
notice;
(b) Landlord may terminate the right of Tenant to possession of the
Premises by any lawful means, without terminating this Lease. In such event,
Tenant's obligations under this Lease shall continue in full force and effect
and Landlord shall be entitled to recover from Tenant all damages incurred by
Landlord by reason of Tenant's default, not limited to those set forth herein;
and
(c) Landlord may enforce the provisions of this Lease and may enforce and
protect the rights of Landlord hereunder by a suit or suits in equity or at law
for the specific performance of any covenant or agreement contained herein, or
for the enforcement of any other appropriate legal or equitable remedy,
including injunctive relief and recovery of all moneys due or to become due from
Tenant under any of the provisions of this Lease.
21.03 Surrender of Possession. If Landlord exercises either of the
-----------------------
remedies provided for in subparagraphs (a) and (b) of Article 21.02, Tenant
shall surrender possession and vacate the Premises immediately and deliver
possession thereof to Landlord, and Landlord may then, or at any time
thereafter, re-enter and take complete and peaceful possession of the Premises,
full and complete license so to do being granted to Landlord, and Landlord may
remove all property therefrom, without being deemed in any manner guilty of
trespass, eviction or forcible entry and detainer and without relinquishing
Landlord's right to Rent or any other right given to Landlord hereunder or by
operation of law.
21.04 Damages. If Landlord terminates the right of Tenant to possession
-------
of the Premises without terminating this Lease, such termination of possession
shall not release Tenant, in whole or in part, from Tenant's obligation to pay
the Rent hereunder for the full stated Term, and Landlord shall have the right
to the immediate recovery of all such amounts. Alternatively, at Landlord's
option, Landlord shall have the right, from time to time, to recover from
Tenant, and Tenant shall remain liable for, all Monthly Base Rent and
Adjustments and any other sums then due under this Lease during the period from
the date of such notice or termination of possession to the end of the Term.
Landlord may file suit from time to time to recover any such sums and no suit or
recovery by Landlord of any such sums or portion thereof shall be a defense to
any subsequent suit brought for any other sums due under this Lease.
Alternatively, if
23
Landlord elects to terminate this Lease, Landlord shall be entitled to recover
from Tenant all Monthly Base Rent and Adjustments accrued and unpaid for the
period up to and including such termination date, as well as all other
additional sums payable by Tenant hereunder. In addition, Landlord shall be
entitled to recover, as damages for loss of the benefit of its bargain and not
as a penalty, the sum of (x) the unamortized cost to Landlord, computed and
determined in accordance with generally accepted accounting principles, of any
tenant improvements provided by Landlord at its expense, (y) the aggregate sum
which at the time of such termination represents the excess, if any, or the
present value of the aggregate Monthly Base Rent and Adjustments (as reasonably
estimated by Landlord) for the remainder of the Term over the then present value
of the then aggregate fair rental value of the Premises for the balance of the
Term, immediately prior to such termination, such present worth to be computed
in each case on the basis of a six percent (6%) per annum discount from the
respective dates upon which rentals would have been payable hereunder had the
Term not been terminated and (z) any damages in addition thereto, including
reasonable attorneys' fees and court costs, which Landlord shall have sustained
by reason of the breach of any of the covenants of this Lease other than for the
payment of Rent.
21.05 Reletting. In the event Landlord terminates the right of Tenant to
---------
possession of the Premises without terminating this Lease as aforesaid, Landlord
shall use reasonable efforts to relet the Premises or any part thereof for the
account of Tenant for such rent, for such time (which may be for a term
extending beyond the Term) and upon such terms as Landlord in Landlord's sole
discretion shall determine (including concessions of free rent and other
inducements to prospective tenants), and Landlord shall not be required to
accept any tenant offered by Tenant or to observe any instructions given by
Tenant relative to such reletting and may give the leasing of any unleased space
in the Building priority over the reletting of the Premises. Also, in any such
event, Landlord may make repairs, alterations and additions in or to the
Premises and redecorate the same to the extent deemed by Landlord necessary or
desirable, and, in connection therewith, change the locks to the Premises, and
Tenant shall upon demand pay the cost thereof together with Landlord's expenses
of reletting. Landlord may collect the rents from any such reletting and apply
the same first to the payment of the expenses of re-entry, redecoration, repair
and alterations and the expense of reletting (including without limitation
brokers' commissions and attorneys' fees) and second to the payment of Rent
herein provided to be paid by Tenant. Any excess or residue shall operate only
as an offsetting credit against the amount of Rent as the same theretofore
became or thereafter becomes due and payable hereunder, but the use of such
offsetting credit to reduce the amount of Rent due Landlord, if any, shall not
be deemed to give Tenant any right, title or interest in or to such excess or
residue and any such excess or residue shall belong solely to Landlord. No such
re-entry or repossession, repairs, alterations and additions, or reletting shall
be construed as an eviction or ouster of Tenant, an election on Landlord's part
to terminate this Lease or an acceptance of a surrender of this Lease, unless a
written notice of such intention be given to Tenant, or shall operate to release
Tenant in whole or in part from any of Tenant's obligations hereunder. Landlord
may, at any time and from time to time, xxx and recover judgment for any
deficiencies remaining after the application of the proceeds of any such
reletting.
21.06 Removal of Tenant's Property. All property removed from the
----------------------------
Premises by Landlord pursuant to any provisions of this Lease or of law shall be
handled, removed or stored by Landlord at the cost, expense and risk of Tenant.
In no event shall Landlord be responsible for the value, preservation or
safekeeping thereof, or be deemed to be in the possession or custody of any
Hazardous Material so removed by Landlord. Tenant shall pay Landlord upon
demand for all expenses incurred by Landlord in such removal and storage.
21.07 Costs. Tenant shall pay all costs, charges and expenses, including,
-----
without limitation, court costs and reasonable attorneys' fees incurred by
Landlord or its beneficiaries in enforcing Tenant's obligations under this
Lease, in the exercise by Landlord of any of its remedies in the event of a
default, in any litigation, negotiation or transactions in which Tenant causes
Landlord, without Landlord's fault, to become involved or concerned, or in
consideration of any request for approval of or consent to any action by Tenant
which is prohibited by this Lease or which may be done only with Landlord's
approval or consent, whether or not such approval or consent is given.
21.08 Late Charges. At the option of Landlord, Landlord may impose a late
------------
payment fee equal to five percent (5%) of the amount due if any payment of Rent
is paid more than five (5) days after
24
its due date. In addition, any amount due hereunder shall bear interest after
default in the payment thereof at the annual rate of eighteen percent (18%),
provided that in no event shall such interest rate exceed the highest legal
interest rate for business loans.
21.09 Landlord's Right to Perform Tenant's Duties. If Tenant fails timely
-------------------------------------------
to perform any of its duties under this Lease, Landlord shall have the right
(but not the obligation), after the expiration of any grace period specifically
provided by this Lease, to perform such duty on behalf and at the expense of
Tenant without further notice to Tenant, and all sums expended or expenses
incurred by Landlord in performing such duty shall be deemed to be Rent under
this Lease and shall be due and payable to Landlord upon demand by Landlord.
21.10 Cumulative Rights. All of Landlord's rights and remedies under this
-----------------
Lease shall be cumulative with and in addition to any and all rights and
remedies which Landlord may have at law or equity. Any specific remedy provided
for in any provision of this Lease shall not preclude the concurrent or
consecutive exercise of a remedy provided for in any other provision hereof.
ARTICLE 22
WAIVER OF COUNTERCLAIMS AND JURY TRIAL
22.01 Counterclaims. Except for compulsory or mandatory counterclaims,
-------------
Tenant hereby waives any right to plead any counterclaim, offset or affirmative
defense in any action or proceedings brought by Landlord against Tenant pursuant
to Colorado law or otherwise, for the recovery of possession based upon the non-
payment of Rent or any other Default. This shall not, however, be construed as a
waiver of Tenant's right to assert any claim in a separate action brought by
Tenant against Landlord, subject, however, to the terms and conditions of
Article 14 above.
22.02 JURY TRIAL. TO THE EXTENT PERMITTED BY LAW, LANDLORD AND TENANT AGREE
----------
THAT EACH SHALL, AND DO HEREBY, WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM BROUGHT BETWEEN THE PARTIES HERETO OR THEIR SUCCESSORS OR ASSIGNS
ON ANY MATTERS ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE, THE
RELATIONSHIP OF LANDLORD AND TENANT, AND/OR TENANT'S USE OR OCCUPANCY OF THE
PREMISES. THIS WAIVER IS MADE FREELY AND VOLUNTARILY, WITHOUT DURESS AND ONLY
AFTER EACH OF THE PARTIES HERETO HAS HAD THE BENEFIT OF ADVICE FROM LEGAL
COUNSEL ON THIS SUBJECT.
ARTICLE 23
HOLDING OVER
If, with Landlord's express written consent, Tenant remains in possession of
the Premises after the expiration or other termination of the Term, Tenant shall
be deemed to be occupying the Premises on a month-to-month tenancy only, at a
monthly rental equal to one hundred fifty percent (150%) of the rate of Monthly
Base Rent and Adjustments in effect from the month immediately preceding said
holding over, computed on a per month basis, for each month or part thereof
(without reduction for any such partial month) that Tenant thus remains in
possession. Such month-to-month tenancy may be terminated by either party upon
thirty (30) days' written notice to the other party.
If, without Landlord's express written consent, Tenant remains in possession
of the Premises after the expiration or other termination of the Term, Tenant
shall be deemed to be occupying the Premises upon a tenancy at sufferance, and
shall pay Landlord Monthly Base Rent at one hundred fifty percent (150%) of the
rate of Monthly Base Rent and Adjustments in effect for the month immediately
preceding said holding over, computed on a per month basis, for each month or
part thereof (without reduction for any such partial month) that Tenant thus
remains in possession. Such tenancy at sufferance may be terminated by Landlord
at any time by notice of termination to Tenant, or by Tenant on the last day of
any calendar month by at least three (3) days' advance written notice of
termination to Landlord.
25
Landlord shall have the right to recover from Tenant any and all damages
(actual and consequential) incurred by Landlord as a result of Tenant's holding
over. The provisions of this Article 23 do not exclude Landlord's right of
reentry or any other right hereunder.
ARTICLE 24
SUBORDINATION; ATTORNMENT; ESTOPPEL CERTIFICATE
24.01 Subordination. Landlord may have heretofore encumbered or may
-------------
hereafter encumber with a mortgage or trust deed the Building, or any interest
therein, and may have heretofore sold and leased back or may hereafter sell and
lease back the land on which the Building is located, and may have heretofore
encumbered or may hereafter encumber the leasehold estate under such lease with
a mortgage or trust deed. (Any such mortgage or trust deed is herein called a
"Mortgage" and the holder of any such mortgage or the beneficiary under any such
trust deed is herein called a "Mortgagee." Any such lease of the underlying land
is herein called a "Ground Lease", and the lessor under any such lease is herein
called a "Ground Lessor." Any Mortgage which is a first lien against the
Building, the land on which the Building is located, the leasehold estate or the
lessor under a Ground Lease (if the property is not then subject to an
unsubordinated mortgage) is herein called a "First Mortgage" and the holder or
beneficiary of or Ground Lessor under any First Mortgage is herein called a
"First Mortgagee.") This Lease is, or shall be, subject and subordinate to any
First Mortgage now or hereafter encumbering the Building. This provision shall
be self-operative, and no further instrument of subordination shall be required
to effectuate such subordination. If requested by a First Mortgagee, Tenant will
either (i) subordinate its interest in this Lease to said First Mortgage, and to
any and all advances made thereunder and to the interest thereon, and to all
renewals, replacements, supplements, amendments, modifications and extensions
thereof, or (ii) make certain of Tenant's rights and interest in this Lease
superior thereto; and Tenant will promptly execute and deliver such agreement or
agreements as may be reasonably required by such Mortgagee or Ground Lessor;
provided, however, Tenant covenants it will not subordinate this Lease to any
Mortgage or Ground Lease other than a First Mortgage (including a Ground Lease
defined as a First Mortgage hereunder) without the prior written consent of the
First Mortgagee. Tenant agrees that Landlord may assign the rents and interests
in this Lease to the holder of any Mortgage or Ground Lease. In conjunction with
the foregoing provisions, Tenant hereby acknowledges its agreement to execute
the Subordination, Non-Disturbance and Attornment Agreement and/or the Lease
Estoppel Certificate required by such Mortgagee and/or Ground Lessor within ten
(10) days following the receipt of a written request therefor.
24.02 Attornment. It is further agreed that (a) if any Mortgage shall be
----------
foreclosed, or if any Ground Lease be terminated, (i) the liability of the
Mortgagee or purchaser at such foreclosure sale or the liability of a subsequent
owner designated as Landlord under this Lease shall exist only so long as such
Mortgagee, purchaser or owner is the owner of the Building or the land on which
the Building is located, and such liability shall not continue or survive after
further transfer of ownership; and (ii) upon request of the Mortgagee, if the
Mortgage shall be foreclosed, Tenant will attorn, as Tenant under this Lease, to
the purchaser at any foreclosure sale under any Mortgage or upon request of the
Ground Lessor, if any Ground Lease shall be terminated, Tenant will attorn as
Tenant under this Lease to the Ground Lessor, and Tenant will execute such
instruments as may be necessary or appropriate to evidence such attornment; (b)
this Lease may not be modified or amended so as to reduce the Rent or shorten
the Term provided hereunder, or so as to adversely affect in any other respect
to any material extent the rights of Landlord or its successor, nor shall this
Lease be canceled or surrendered, without the prior written consent, in each
instance, of the First Mortgagee; and (c) Tenant waives the provisions of any
statute or rule of law, now or hereafter in effect, that may give or purport to
give Tenant any right to terminate or otherwise adversely affect Landlord's
interest in this Lease or reduce or limit the obligations of Tenant hereunder in
the event of the prosecution or completion of any such foreclosure proceeding.
No Mortgagee or any purchaser at a foreclosure sale shall be liable for any act
or omission of Landlord which occurred prior to such sale or conveyance, nor
shall Tenant be entitled to any offset against or deduction from Rent due after
such date by reason of any act or omission of Landlord prior to such date.
Further, Tenant agrees that no Mortgagee shall be bound by the prepayment of
Rent made in excess of sixty (60) days before the date on which such payment is
due.
26
24.03 Mortgagee Requirements. Should any prospective First Mortgagee
----------------------
require a modification or modifications of this Lease, which modification or
modifications will not cause an increased cost or expense to Tenant or in any
other way materially and adversely change the rights and obligations of Tenant
hereunder, in the reasonable judgment of Tenant, then and in such event, Tenant
agrees that this Lease may be so modified and agrees to execute whatever
documents are required therefor and deliver the same to Landlord within ten (10)
days following the request therefor. Should any prospective Mortgagee or Ground
Lessor require execution of a short form of lease for recording (containing,
among other customary provisions, the names of the parties, a description of the
Premises and the Term of this Lease), Tenant agrees to execute such short form
of Lease and deliver the same to Landlord within ten (10) days following the
request therefor.
24.04 Mortgagee's Notice and Cure Rights. Tenant agrees to simultaneously
----------------------------------
give any First Mortgagee, by registered or certified mail, a copy of any notice
or claim of default served upon Landlord by Tenant, provided that prior to such
notice Tenant has been notified in writing (by way of service on Tenant of a
copy or an assignment of Landlord's interests in leases, or otherwise) of the
address of such First Mortgagee. Tenant further agrees that if Landlord shall
have failed to cure such default within twenty (20) days after such notice to
Landlord (or if such default cannot be cured or corrected within that time, then
such additional time as may be necessary if Landlord has commenced within such
twenty (20) days and is diligently pursuing the remedies or steps necessary to
cure or correct such default), then the First Mortgagee shall have an additional
thirty (30) days within which to cure or correct such default (or if such
default cannot be cured or corrected within that time, then such additional time
as may be necessary if such First Mortgagee has commenced within such thirty
(30) days and is diligently pursuing the remedies or steps necessary to cure or
correct such default, including the time necessary to obtain possession if
possession is necessary to cure or correct such default) before Tenant may
exercise any right or remedy which it may have on account of any such default of
Landlord.
24.05 Estoppel Certificate. Tenant agrees that from time to time, within
--------------------
seven (7) days of receipt of prior written request by Landlord, Tenant will, and
Tenant will cause any subtenant, licensee, concessionaire or other occupant of
the Premises to, promptly complete, execute and deliver to Landlord or any party
or parties designated by Landlord a statement in writing certifying: (i) that
this Lease is unmodified and in full force and effect (or if there have been
modifications that the same are in full force and effect as modified and
identifying the modifications); (ii) the dates to which the Rent and other
charges have been paid; (iii) that the Premises have been unconditionally
accepted by Tenant (or if not, stating with particularity the reasons why the
Premises have, not been unconditionally accepted); (iv) the amount of any
Security Deposit held hereunder; (v) that, so far as the party making the
certificate knows, Landlord is not in default under any provisions of this
Lease, if such is the case, and if not, identifying all defaults with
particularity; and (vi) any other matter reasonably requested by Landlord. Any
purchaser or Mortgagee of any interest in the Building shall be entitled to rely
on said statement. Failure to give such a statement within seven (7) days after
said written request shall be conclusive evidence, upon which Landlord and any
such purchaser or Mortgagee shall be entitled to rely, that this Lease is in
full force and effect and Landlord is not in default and Tenant shall be
estopped from asserting against Landlord or any such purchaser or Mortgagee any
defaults of Landlord existing at that time but Tenant shall not thereby be
relieved of the affirmative obligation to give such statement. Moreover, if
Tenant fails to deliver or cause to be delivered such statement within said
seven (7) day period, Landlord shall be entitled to collect from Tenant upon
demand, as liquidated damages occasioned by such delay and not as a penalty (the
actual damages resulting from such delay being impossible to ascertain), a sum
equal to one-fifteenth of the Monthly Base Rent for each day, up to fifteen (15)
days, after the expiration of said seven (7) day period that Tenant fails to
deliver such statement. If such failure persists after such fifteen (15) day
period, Landlord shall be entitled to pursue any and all remedies it may have
with respect to such Default, including termination of this Lease or Tenant's
right to possession and collection of damages, including consequential damages,
arising by reason of such Default.
24.06 Nondisturbance Agreement Benefitting Tenant. Notwithstanding
-------------------------------------------
anything in this Lease to the contrary, Landlord shall use commercially
reasonable efforts to obtain and deliver to Tenant within forty-five (45) days
of the date of full execution of this Lease a nondisturbance agreement, as more
particularly described below, from any present mortgagee, beneficiary of a deed
of trust, or lender. Such
27
nondisturbance agreement shall provide, among other things, that Tenant,
notwithstanding any default of Landlord thereunder, will have the right to
remain i n possession of the Premises described herein in accordance with the
terms and provisions of this Lease for so long as Tenant will not be in default
under this Lease.
ARTICLE 25
HAZARDOUS MATERIALS
Tenant covenants and agrees that it shall not cause or permit any Hazardous
Material (as defined below) to be brought upon, kept, or used in or about the
Premises or Building by Tenant, its agents, employees, contractors or invitees.
The foregoing covenant shall not extend to substances typically found or used in
general administrative office applications so long as (i) such substances and
any equipment which generates such substances are maintained only in such
quantities as are reasonably necessary for Tenant's operations in the Premises,
(ii) such substances are used strictly in accordance with the manufacturers'
instructions therefor, (iii) such substances are not disposed of in or about the
Building in a manner which would constitute a release or discharge thereof, and
(iv) all such substances and any equipment which generates such substances are
removed from the Building by Tenant upon the expiration or earlier termination
of this Lease. Any use, storage, generation, disposal, release or discharge by
Tenant of Hazardous Materials in or about the Building as is permitted pursuant
to this Section shall be carried out in compliance with all applicable federal,
state and local laws, ordinances, rules and regulations. Moreover, no Hazardous
Materials resulting from any operations by Tenant shall be stored or maintained
by Tenant in or about the Building for more than ninety (90) days prior to
removal by Tenant. Tenant shall, annually within thirty (30) days after
Tenant's receipt of Landlord's written request therefor, provide to Landlord a
written list identifying any Hazardous Materials then maintained by Tenant in
the Building, the use of each such Hazardous Material and the approximate
quantity of each such Hazardous Material so maintained by Tenant, together with
written certification by Tenant stating, in substance, that neither Tenant nor
any person for whom Tenant is responsible has released or discharged any
Hazardous Materials in or about the Building.
In the event that Tenant proposes to conduct any use or to operate any
equipment which will or may utilize or generate a Hazardous Material other than
as specified in the first paragraph of this subsection, Tenant shall first in
writing submit such use or equipment to Landlord for approval, which approval
may be granted or withheld in Landlord's sole discretion. No approval by
Landlord shall relieve Tenant of any obligation of Tenant pursuant to this
subsection, including the removal, clean-up and indemnification obligations
imposed upon Tenant by this subsection. Tenant shall, within five (5) days
after receipt thereof, furnish to Landlord copies of all notices or other
communications received by Tenant with respect to any actual or alleged release
or discharge of any Hazardous Material in or about the Premises or the Building
and shall, whether or not Tenant receives any such notice or communication,
notify Landlord in writing of any discharge or release of Hazardous Material by
Tenant or anyone for whom Tenant is responsible in or about the Premises or the
Building. In the event that Tenant is required to maintain any Hazardous
Materials license or permit in connection with any use conducted by Tenant or
any equipment operated by Tenant in the Premises, copies of each such license or
permit, each renewal or revocation thereof and any communication relating to
suspension, renewal or revocation thereof shall be furnished to Landlord within
five (5) days after receipt thereof by Tenant. Compliance by Tenant with the
two immediately preceding sentences shall not relieve Tenant of any other
obligation of Tenant pursuant to this subsection.
Upon any violation of the foregoing covenants, Tenant shall be obligated,
at Tenant's sole cost, to clean-up and remove from the Building all Hazardous
Materials introduced into the Building by Tenant or any person or entity for
whom Tenant is responsible. Such clean-up and removal shall include all testing
and investigation required by any governmental authorities having jurisdiction
and preparation and implementation of any remedial action plan required by any
governmental authorities having jurisdiction. All such clean-up and removal
activities of Tenant shall, in each instance, be conducted to the satisfaction
of Landlord and all governmental authorities having jurisdiction. Landlord's
right of entry pursuant to Article 16 above shall include the right to enter and
inspect the Premises for violations of Tenant's covenants herein.
28
Notwithstanding and in addition to the provisions of Article 14 above,
Tenant shall indemnify, defend and hold harmless Landlord and Landlord's Related
Parties from and against any and all claims, liabilities, losses, actions, costs
and expenses (including attorneys' fees and costs of defense) incurred by such
indemnified persons, or any of them, as the result of (i) the introduction into
or about the Building by Tenant or anyone for whom Tenant is responsible of any
Hazardous Materials, (ii) the usage, storage, maintenance, generation,
disposition or disposal by Tenant or anyone for whom Tenant is responsible of
Hazardous Materials in or about the Building, (iii) the discharge or release in
or about the Building by Tenant or anyone for whom Tenant is responsible of any
Hazardous Materials, (iv) any injury to or death of persons or damage to or
destruction of property resulting from the use, introduction, maintenance,
storage, generation, disposal, disposition, release or discharge by Tenant or
anyone for whom Tenant is responsible of Hazardous Materials in or about the
Building, and (v) any failure of Tenant or anyone for whom Tenant is responsible
to observe the foregoing covenants of this subsection.
Upon any violation of the foregoing covenants, Landlord shall be entitled
to exercise all remedies available to a landlord against a defaulting tenant,
including but not limited to those set forth in Article 21 above. Without
limiting the generality of the foregoing, Tenant expressly agrees that upon any
such violation Landlord may, at its option, (i) immediately terminate this Lease
or (ii) continue this Lease in effect until compliance by Tenant with its clean-
up and removal covenant notwithstanding any earlier expiration date of the term
of this Lease. No action by Landlord hereunder shall impair the obligations of
Tenant pursuant to this subsection.
As used in this subsection, "Hazardous Materials" is used in its broadest
sense and shall include any petroleum based products, pesticides, paints and
solvents, polychlorinated biphenyl, lead, cyanide, DDT, acids, ammonium
compounds and other chemical products and any substance or material defined or
designated as hazardous or toxic, or other similar term, by any federal, state
or local environmental statute, regulation, or ordinance affecting the Premises
or Building presently in effect or that may be promulgated in the future, as
such statutes, regulations and ordinances may be amended from time to time,
including but not limited to the following statutes: Resource Conservation and
Recovery Act of 1976, 42 U.S.C. (S) 6901 et seq.; Comprehensive Environmental
-- ----
Response, Compensation, and Liability Act of 1980, 42 U.S.C. (S) 9601 et seq.;
-- ----
Clean Air Act, 42 U.S.C. (S)(S) 7401-7626; Water Pollution Control Act (Clean
Water Act of 1977), 33 U.S.C. (S) 1251 et seq.; Insecticide, Fungicide, and
-- ----
Rodenticide Act (Pesticide Act of 1987), 7 U.S.C. (S) 135 et seq.; Toxic
-- ----
Substances Control Act, 15 U.S.C. (S) 2601 et seq.; Safe Drinking Water Act, 42
-- ----
U.S.C. (S) 300(f) et seq.; National Environmental Policy Act (NEPA) 42 U.S.C.
-------
(S) 4321 et seq.; Refuse Act of 1899, 33 U.S.C. (S) 407 et seq.; Tenant
-- ---- -- ----
acknowledges that incorporation of any material containing asbestos into the
Premises is absolutely prohibited. Tenant agrees, represents and warrants that
it shall not incorporate or permit or suffer to be incorporated, knowingly or
unknowingly, any material containing asbestos into the Premises.
The provisions of this Article 25 shall survive the expiration or
termination of this Lease.
ARTICLE 26
RELOCATION OF TENANT
[INTENTIONALLY OMITTED]
ARTICLE 27
NOTICES AND DEMANDS
All notices, demands, approvals, consents, requests for approval or consent
or other writings in this Lease provided to be given, made or sent by either
party hereto to the other ("Notice") shall be in writing and shall be deemed to
have been fully given, made or sent when made by personal service or two (2)
business days after deposit in the United States mail, certified or registered
and postage prepaid and properly addressed as follows:
To Landlord: The address set forth in Section l.0l above, with a copy to
Landlord's Management Agent at the address set forth in Section
1.18 above.
29
To Tenant: The address set forth in Section 1.02 above; provided, however, if
the Premises shall have been vacated, Notice may be posted on the
door to the Premises.
The address to which any Notice should be given, made or sent to either party
may be changed by written notice given by such party as above provided. Any
notice, demand, request or consent to be made by or required of Landlord, may be
made and given by Landlord's Management Agent with the same force and effect as
if made and given by Landlord.
ARTICLE 28
MISCELLANEOUS; TENANT OPTIONS
28.01 Landlord's Lien and Security Interest. [Intentionally Omitted]
-------------------------------------
28.02 Construction. The language in all parts of this Lease shall in all
be construed as a whole according to its fair meaning and neither strictly for
nor against either Landlord or Tenant. Article and Section headings in this
Lease are for convenience only and are not to be construed as part of this Lease
or in any way defining, limiting, amplifying, construing, or describing the
provisions hereof. Time is of the essence of this Lease and every term, covenant
and condition hereof. The words "Landlord" and "Tenant," as herein used, shall
include the plural as well as the singular. The neuter gender includes the
masculine and feminine. In the event there is more than one person or entity
which executes this Lease as Tenant, the obligations to be performed and
liability of all such persons and entities shall be joint and several. All of
the covenants of Tenant hereunder shall be deemed and construed to be
"conditions" as well as "covenants" as though the words specifically expressing
or importing conditions were used in each separate instance. Landlord and Tenant
agree that in the event any term, covenant or condition herein contained (other
than with respect to the payment of Rent) is held to be invalid or void by any
court of competent jurisdiction, the invalidity of any such term, covenant or
condition shall in no way affect any other term, covenant or condition herein
contained.
28.03 Brokers. Landlord and Tenant represent and warrant unto each other
-------
that each has directly dealt with and only with Landlord's Management Agent and
the Broker, if any, identified in Article 1 of this Lease as broker in
connection with this Lease, and agree to indemnify and hold harmless each other
from and against any and all claims or demands, damages, liabilities and
expenses of any type or nature whatsoever arising by reason of the incorrectness
or breach of the aforesaid representation or warranty. Landlord shall pay, and
agrees to indemnify and hold harmless Tenant from and against any claim by,
Landlord's Management Agent and the Broker for its commission arising out of the
execution and delivery of this Lease.
28.04 Benefit. Subject to the provisions of Articles 19 and 20 hereof,
-------
all terms, covenants and conditions on this Lease shall be binding upon and
inure to the benefit of and shall apply to the respective heirs, executors,
administrators, successors, assigns and legal representatives of Landlord and
Tenant.
28.05 Execution and Delivery. The submission of an unsigned copy of this
----------------------
Lease by Landlord or Tenant to the other will not constitute an offer or option
to lease the Premises. The execution of this Lease by Tenant and delivery of
the same to Landlord or Landlord's Management Agent do not constitute a
reservation of or option to lease the Premises or an agreement by Landlord to
enter into a Lease, and this Lease shall become effective only if and when
Landlord executes and delivers a counterpart hereof to Tenant; provided,
however, the execution and delivery by Tenant of this Lease to Landlord or
Landlord's Management Agent shall constitute an irrevocable offer by Tenant to
lease the Premises on the terms and conditions herein contained, which offer may
not be withdrawn or revoked for thirty (30) days after such execution and
delivery. If Tenant is a corporation, it shall deliver to Landlord concurrently
with the delivery to Landlord of an executed Lease, a certified resolution of
Tenant's directors authorizing execution and delivery of this Lease and the
performance by Tenant of its obligations hereunder. If Tenant is a partnership,
it shall deliver to Landlord concurrently with the delivery to Landlord of an
executed Lease, a certified copy of its partnership agreement or other
satisfactory evidence of execution and performance authority. Tenant shall not
record this Lease or any memorandum or other evidence hereof.
30
28.06 Default Under Other Lease or Agreement. If the term of any lease
--------------------------------------
(other than this Lease) made by Tenant for any demised premises in the Building
or any other agreement with Landlord shall be terminated or terminable after the
making of this Lease, because of any default by Tenant under such other lease or
agreement, such fact shall empower Landlord, at Landlord's sole option, to
declare this Lease to be in default by written notice to Tenant.
28.07 Applicable Law. This Lease shall be governed by and construed in
--------------
accordance with the laws of the State of Colorado.
28.08 Amendments. This Lease contains and embodies the entire agreement
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of the parties hereto, and no representation, inducements or agreements, oral or
otherwise, not contained in this Lease shall be of any force or effect. This
Lease may not be modified in whole or in part in any manner other than by an
instrument in writing duly signed by both parties hereto.
28.09 Non-Waiver of Defaults. No waiver of any provision of this Lease
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shall be implied by any failure of Landlord to enforce any remedy on account of
the violation of such provision, even if such violation be continued or repeated
subsequently, and no express waiver shall affect any provision other than the
one specified in such waiver and in that event only for the time and in the
manner specifically stated. No receipt of monies by Landlord from Tenant after
the termination of this Lease will in any way alter the length of the Term of
Tenant's right of possession hereunder or, after the giving of any notice, shall
reinstate, continue or extend the Term or affect any notice given Tenant prior
to the receipt of such monies, it being agreed that after the service of notice
or the commencement of a suit or after final judgment for possession of the
Premises, Landlord may receive and collect any Rent due, and the payment of Rent
shall not waive or affect said notice, suit or judgment, nor shall any such
payment be deemed to be other than on account of the amount due, nor shall the
acceptance of Rent be deemed a waiver of any breach by Tenant of any term,
covenant or condition of this Lease. No endorsement or statement on any check
or any letter accompanying any check or payment of Rent shall be deemed an
accord and satisfaction. Landlord may accept any such check or payment without
prejudice to Landlord's right to recover the balance due of any installment or
payment of Rent or pursue any other remedies available to Landlord with respect
to any existing Defaults. None of the terms, covenants or conditions of this
Lease can be waived by either Landlord or Tenant except by appropriate written
instrument.
28.10 Force Majeure. Landlord shall not be deemed in default with respect
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to the failure to perform any of the terms, covenants and conditions of this
Lease on Landlord's part to be performed, if such failure is due in whole or in
part to any strike, lockout, labor dispute (whether legal or illegal), civil
disorder, inability to procure materials, failure of power, restrictive
governmental laws and regulations, riots, insurrections, war, fuel shortages,
accidents, casualties, Acts of God, acts caused directly or indirectly by Tenant
(or Tenant's agents, employees, guests or invitees), acts of other tenants or
occupants of the Building or any other cause beyond the reasonable control of
Landlord. In such event, the time for performance by Landlord shall be extended
by an amount of time equal t o the period of the delay so caused. No
interruption of service resulting from any of the causes described in the first
sentence of the Section shall relieve Tenant of any of its obligations under
this Lease or render Landlord liable for damages. Landlord shall not be liable
to Tenant for any expense, injury, loss or damage resulting from work done in or
upon, or the use of, any adjacent or nearby building, land, street, alley or
underground vault or passageway.
28.11 Counterparts. This Lease may be executed in several duplicate
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counterparts, each of which shall be deemed an original of this Lease for all
purposes.
28.12 Work Letters and Exhibits. Any and all work letters and exhibits
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attached hereto are hereby incorporated in this Lease by reference.
28.13 Financial Statements. Tenant shall, when requested by Landlord from
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time to time, furnish a true and accurate audited statement of its financial
condition prepared in conformity with generally accepted accounting principles
and in a form reasonably satisfactory to Landlord.
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28.14 Relationship of Parties. Nothing contained in this Lease shall
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create any relationship between the parties hereto other than that of
Landlord and Tenant, and it is acknowledged and agreed that Landlord shall
not be deemed to be a partner of Tenant in the conduct of its business, or
a joint venturer or a member of a joint or common enterprise with Tenant.
28.15 No Recording. Tenant shall not record this Lease or any memorandum
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thereof without the prior written consent of Landlord, which consent may be
withheld in Landlord's sole discretion.
28.16 Bankruptcy. Landlord and Tenant understand that, notwithstanding
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certain provisions to the contrary contained herein, a trustee or debtor in
possession under the United States Bankruptcy Code ("Code") may have certain
rights to assume or assign this Lease. Landlord and Tenant further understand
that, in such event, Landlord is entitled under the Code to adequate assurances
of future performance of the terms and provisions of this Lease. The parties
hereto agree that, with respect to any such assumption or assignment, the term
"adequate assurance" shall include at least the following: (1) since the
financial condition and resources of Tenant were a material inducement to
Landlord in entering into this Lease, in order to assure Landlord that the
proposed assignee will have the resources with which to pay all Rent payable
pursuant to the terms hereof, any proposed assignee must have, as demonstrated
to Landlord's satisfaction, a net worth (as defined in accordance with generally
accepted accounting principles consistently applied) of not less than the net
worth of tenant on the date this Lease became effective, increased by seven
percent (7%), compounded annually, for each year from the Commencement Date
through the date of the proposed assignment; (2) since Landlord's asset will be
substantially impaired if the trustee in bankruptcy or any assignee of this
Lease makes any use of the Premises other than the Permitted Use, any proposed
assignee must have been engaged in the conduct of business for the five (5)
years prior to any such proposed assignment, which business does not violate the
Permitted Use, and such proposed assignee shall continue to engage in the
Permitted Use; and (3) any proposed assignee of this Lease must assume and agree
to be personally bound by the terms, covenants and provisions of this Lease.
28.17 Landlord's Consent. Unless otherwise specifically provided herein,
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wherever Landlord's consent is required, such consent may be withheld by
Landlord at Landlord's sole discretion.
28.18 Landlord's Contingency. Tenant acknowledges and agrees that the
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terms and conditions of this Lease are specifically contingent upon the approval
by Landlord's Mortgagee of this Lease. Accordingly, in the event that Landlord's
Mortgagee fails to approve this Lease, this Lease shall automatically terminate
and be of no further force or effect.
28.19 Renewal Term. [INTENTIONALLY OMITTED]
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IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
day and year first above written.
LANDLORD: TENANT:
WESTMARK TERRACE TOWER II, INC., INTEK INFORMATION, INC., a
a Delaware corporation a Delaware corporation
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxxx X'Xxxx
--------------- -------------------
Name: Xxxx Xxxxxx Name: Xxxxxxx X'Xxxx
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Title: Authorized Signatory Title: Managing Director
By: /s/ Xxxxxx X. Xxxxxxx By: ______________________________
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Name: Xxxxxx X. Xxxxxxx Name: ____________________________
Title: Authorized Signatory Title: ___________________________
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