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STANDARD COMMERCIAL LEASE
BETWEEN
GREENWOOD PLAZA PARTNERS, LLC
AS LESSOR
AND
NEW ERA OF NETWORKS, INC. AS LESSEE
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TABLE OF CONTENTS
ARTICLE/SECTION Page #
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1.00 BASIC LEASE TERMS 1
1.01 Parties 1
1.02 Leased Premises 1
1.03 Term 1
1.04 Base Rent 1
1.05 Address for Payment of Base Rent 1
1.06 Permitted Use 1
1.07 Security Deposit 1
2.00 RENT 1
2.01 Base Rent 1
2.02 Definition of Operating Expenses 1
2.03 Operating Expenses 2
2.04 Late Payment Charge 2
2.05 Increase in Insurance Premiums 2
2.06 Security Deposit 2
2.07 Holding Over 2
3.00 OCCUPANCY AND USE 3
3.01 Use 3
3.02 Signs 3
3.03 Compliance with Laws, Rules and Regulations 3
3.04 Warranty of Possession 3
3.05 Inspection 3
3.06 Acceptance of Leased Premises 3
3.07 Non-Smoking Building 3
4.00 UTILITIES AND SERVICE 3
4.01 Building Services 3
4.02 Theft or Burglary 4
4.03 Janitorial Service 4
4.04 Excessive Utility Consumption 4
4.05 Window Coverings 4
4.06 Charge for Service 4
5.00 REPAIRS AND MAINTENANCE 4
5.01 Lessor Repairs 4
5.02 Lessee Repairs 4
5.03 Request for Repairs 4
5.04 Lessee Damages 4
6.00 ALTERATIONS AND IMPROVEMENTS 4
6.01 Lessor Improvements 4
6.02 Lessee Improvements 4
6.03 Mechanics Lien 4
7.00 CASUALTY AND INSURANCE 5
7.01 Substantial Destruction 5
7.02 Partial Destruction 5
7.03 Property Insurance 5
7.04 Waiver of Subrogation 5
7.05 Hold Harmless 5
8.00 CONDEMNATION 5
8.01 Substantial Taking 5
8.02 Partial Taking 5
9.00 ASSIGNMENT OR SUBLEASE 5
9.01 Lessor Assignment 5
9.02 Lessee Assignment 5
9.03 Conditions of Assignment 5
9.04 Subordination 6
9.05 Estoppel Certificates 6
10.00 DEFAULT AND REMEDIES 6
10.01 Default by Lessee 6
10.02 Remedies for Lessee's Default 6
11.00 SUBSTITUTE PREMISES 6
11.01 Relocation 6
11.02 Expenses 7
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TABLE OF CONTENTS (continued)
12.00 HAZARDOUS MATERIALS 7
12.01 Hazardous Materials 7
13.00 DEFINITIONS 7
13.01 Abandon 7
13.02 Act of God or Force Majeure 7
13.03 Building 7
13.04 Commencement Date 7
13.05 Completion Date 7
13.06 Square Feet 7
14.00 LESSEE'S INSURANCE 8
14.01 Fire and Extended Coverage 8
14.02 General Liability and Property 8
14.03 Endorsements 8
15.00 MISCELLANEOUS 8
15.01 Waiver 8
15.02 Act of God 8
15.03 Attorney's Fees 8
15.04 Successors 8
15.05 Rent Tax 8
15.06 Captions 8
15.07 Notice 8
15.08 Submission of Lease 8
15.09 Corporate Authority 8
15.10 Severability 8
15.11 Lessor's Liability 8
15.12 Indemnity 9
15.13 Amendment 9
15.14 Limitation of Warranties 9
15.15 Governing Law 9
15.16 Parking 9
15.17 Entire Agreement 9
15.18 Renewal Option 9
15.19 Right of First Refusal 9
Lessor/Lessee Signature Block 9
EXHIBITS
Exhibit "A" - The Leased Premises 10
Exhibit "A-1" - The Leased Premises Floor Plan
Exhibit "B" - Rules and Regulations 11
Exhibit "C" - Lessor Improvements 12
Exhibit "D" - Acceptance of Leased Premises/Tenant Estoppel Certificate 13
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STANDARD COMMERCIAL LEASE
ARTICLE 1.00 BASIC LEASE TERMS
1.01 PARTIES. This Standard Commercial Lease (this "Lease") made as of this
9th day of October, 1998, is entered into by and between: Greenwood Plaza
Partners, LLC, ("Lessor"), and New Era of Networks, Inc., a Delaware corporation
(Lessee")
1.02 LEASED PREMISES. In consideration of the rents, terms, provisions and
covenants of this Lease, Lessor hereby leases, lets and demises to Lessee the
following described premises ("Leased Premises") as further delineated on
Exhibit "A" attached hereto and by reference incorporated herein:
Approximately 42,305 rsf, on the first and second floors (Approximate Rentable Square Feet)
ONE Greenwood Plaza (Name of Building)
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇ and 200 (Street Address/Suite Number)
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (City, State and Zip Code)
1.03 Term. Subject to and upon the conditions set forth herein, the term of
this Lease shall commence on the "Commencement Date" (which Lessor shall use its
best efforts to establish as July 1, 1999. The term of this Lease shall expire
120 months thereafter (the "Expiration Date").
1.04 BASE RENT. Base rent is per the following rent schedule:
Years 1-5 $22.25 per rentable square foot per year
Years 6-8 $26.10 per rentable square foot per year
Years 9-10 $28.50 per rentable square foot per year
1.05 ADDRESS FOR PAYMENT OF BASE RENT.
Greenwood Plaza Partners, LLC
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
1.06 PERMITTED Use. General Office
1.07 SECURITY DEPOSIT. Security deposit is $79,687.50
The Security Deposit will be returned, together with interest earned on
it as long as no default, on the fifth anniversary of the Commencement
Date, so long as no event of default has occurred before that date.
ARTICLE 2.00 RENT
2.01 BASE RENT. Lessee shall pay monthly as base rent during the term of
this Lease the sum of money set forth in Section 1.04 of this Lease, which
amount shall be payable to Lessor at the address shown above. One (1) monthly
installment of base rent for the first month's rent shall be due and payable on
the date of execution of this Lease by Lessee, and a like monthly installment
shall be due and payable on or before the first day of each calendar month
during the term of this Lease succeeding the Commencement Date or Completion
Date; provided, if the Commencement Date or the Completion Date should be a date
other than the first day of a calendar month, the monthly base rent set forth
above shall be prorated to the end of that calendar month, and all succeeding
installments of rent shall be payable on or before the first day of each
succeeding calendar month during the term of this Lease. Lessee shall pay, as
additional rent, all other sums due under this Lease. All rent shall be paid
without demand, setoff, deduction or offset, except as allowed by this Lease.
2.02 DEFINITION OF OPERATING EXPENSES. The term "Operating Expenses" shall
include all reasonable and necessary expenses incurred by Lessor with respect to
the maintenance and operation of the Building of which the Leased Premises are a
part, including, but not limited to, the following: maintenance, repair and
replacement costs; electricity, fuel, water, sewer, gas and other utility
charges; security, window washing and janitorial services; trash and snow
removal; landscaping and pest control; management fees, wages and benefits
payable to employees of Lessor or Lessor's property manager whose duties are
directly connected with the operating and maintenance of the Building; all
services, supplies, repairs, replacements or other expenses for maintaining and
operating the Building or the Project including parking and common areas; the
cost, including interest, amortized over its useful life, of any capital
improvement or structural repair or replacement made to the Building by Lessor
after the date of this Lease which is required under any law (or interpretation
thereof), ordinance, rules, regulations or orders of any governmental or
quasi-governmental authority having jurisdiction over the Building that is
enacted after the Commencement Date; the cost, including interest, amortized
over its useful life, of installation of any device or other equipment which
improves the operating efficiency of any system within the Building and thereby
reduces Operating Expenses but only to the extent of the reduction in each year
during the Term; all real property taxes and installments of special
assessments, including dues and assessments by means of deed restrictions and/or
owners' associations which accrue against the Building of which the Leased
Premises are a part during the term of this Lease; and all insurance premiums
which Lessor is required to pay or deems necessary to pay, including public
liability insurance, with respect to the Building. The term Operating Expenses
shall not include the following: repairs, restoration or other work occasioned
by fire, wind, the elements or other casualty; income and franchise taxes of
Lessor; expenses incurred in leasing to or procuring of lessees, leasing
commissions, advertising expenses and expenses for the renovating of space for
new lessees; interest or principal payments on any mortgage or other
indebtedness of Lessor; compensation paid to any employee of Lessor or Lessor's
property manager above the grade of property manager; any depreciation allowance
or expense (a) Costs of decorating, redecorating, special cleaning, or other
services not provided on a regular basis to Lessees of the Building; (b) Wages,
salaries, fees, and fringe benefits paid to administrative or executive
personnel or officers or partner of Lessor unless employed at competitive rates
as independent contractors; (c) Any charge for depreciation of the building or
equipment and any interest or other financing charge; (d) Any charge of Lessor's
income taxes, excess profit taxes, franchise taxes, or similar taxes on Lessor's
business; (e) All costs relating to activities for the solicitation and
execution of leases of space in the Building; (f) All costs for which Lessee or
any other lessee in the Building is being charged other than pursuant to this
paragraph 2.02; (g) The cost of any electric current furnished to the Leased
Premises or any rentable area of the Building for purposes other than the
operation of Building equipment and machinery and the lighting of public
toilets, stairways, shaftways, and Building machinery or fan rooms; (h) The cost
of correcting defects in the construction of the Building or in the Building
equipment, except that conditions (not occasioned by construction defects)
resulting from ordinary wear and tear will not be deemed defects for the purpose
of this category; (i) The cost of any repair made by Lessor because of the
total or partial destruction of the
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Building or the condemnation of a portion of the Building; (j) Any insurance
premium to the extent that Lessor is entitled to be reimbursed for it by Lessee
pursuant to this Lease or by any lessee of the Building pursuant to a similar
lease other than pursuant to clauses comparable to this paragraph 2.02; (k) The
cost of any items for which Lessor is reimbursed by insurance or otherwise
compensated by parties other than lessees of the Building pursuant to clauses
similar to this paragraph 2.02; (1) The cost of any repairs, alterations,
additions, changes, replacement, and other items that under generally accepted
accounting principles are properly classified as capital expenditures to the
extend they upgrade or improve the Building as opposed to replace existing items
that have worn out; (in) Any operating expense representing an amount paid to a
related corporation, entity, or person that is in excess of the amount that
would be paid in the absence of such relationship; (n) The cost of any work or
service performed for or facilities furnished to any lessee of the Building to a
greater extent or in a manner more favorable to such lessee than that performed
for or furnished to Lessee; (o) The cost of alterations of space in the Building
leased to other lessees; (p) The cost of overtime or other expense to Lessor in
curing its defaults or performing work expressly provided in this Lease to be
borne at Lessor's expense; and (p) Amounts paid (including interest) on account
of or to cure statutes, laws, notes, or ordinances by Lessor or any part of the
Building; or other operating expenses which are the responsibility of Lessee.
2.03 OPERATING EXPENSES. In the event that Lessor's Operating Expenses for
the Building and/or Project of which the Leased Premises are a part shall, in
any calendar year during the term of this Lease, exceed the sum of the calendar
year 1999 operating expenses per rentable square foot, Lessee shall pay, as
additional rent, Lessee's prorata share of such excess Operating Expenses.
Lessor may invoice Lessee monthly for Lessee's prorata share of the estimated
incurred Operating Expenses for each calendar year, which amount shall be
adjusted each year by Lessor based upon reasonable anticipated Operating
Expenses. Within five (5) months following the close of each calendar year,
Lessor shall provide Lessee with an accounting showing in reasonable detail all
computations of additional rent due under this Section 2.03. In the event that
Lessor's accounting shows that the total of the monthly estimated payments made
by Lessee exceeds the actual amount of additional rent due by Lessee under this
Section 2.03, then so long as Lessee is not in default hereunder, Lessee's
account shall be credited with such amount. In the event that Lessor's
accounting shows that the total of the monthly estimated payments made by Lessee
is less than the actual amount of additional rent due by Lessee under this
Section 2.03, then the accounting shall be accompanied by an invoice for the
additional rent. Notwithstanding any other provision in this Lease, during the
year in which the Expiration Date or sooner termination of the Lease occurs,
Lessor shall have the option to invoice Lessee for Lessee's prorata share of the
excess Operating Expenses based upon the previous year's Operating Expenses. If
this Lease shall terminate on a day other than the last day of a calendar year,
the amount of any additional rent payable by Lessee applicable to the year in
which such termination shall occur shall be prorated on the ratio that the
number of days from the commencement of the calendar year to and including the
termination date bears to 365. Lessee shall have the right, at its own expense
and within a reasonable time, to audit Lessor's books relevant to the additional
rent payable under this Section 2.03 Lessee may, upon not less than thirty (30)
days prior written notice to Lessor, inspect Lessor's records for all Operating
Expenses incurred during the preceding year at Lessor's general offices at such
other location reasonably designated by Lessor at any time during reasonable
business hours within six (6) months after the end of said year. If said
inspection reveals an overpayment of Operating Expenses, Lessor shall reimburse
Lessee its proportionate share of any such overpayment within thirty (30) days
after receipt of proper billing. If said inspection reveals that Lessor
misstated Operation Expenses and insurance expenses by more than five percent
(5%), Lessor shall reimburse Lessee for all costs reasonably incurred in making
such inspection within thirty (30) days after receipt of notice of
determination, and of the amount, of any such misstatement. Lessor's Operating
Expenses for any year shall be deemed correct if Lessee does not give Lessor
written notice of discrepancy within ninety (90) days of receipt of operating
expense notice. Lessee agrees to pay any additional rent due under this Section
2.03 within ten (10) days following receipt of the invoice or accounting showing
additional rent due. The Operating Expenses that vary with occupancy and that
are attributable to any part of the term in which less than one hundred percent
(100%) of the rentable area of the Building is occupied by lessees will be
adjusted by Lessor to the amount Lessor reasonably believes such expenses would
have been ninety-five percent (95%) of the rentable area of the Building had
been occupied. For purposes of determining Operating Expenses for the calendar
year 1999, the real estate taxes will be those imposed on the first year in
which the building is fully assessed as a completed building.
2.04 LATE PAYMENT CHARGE. Other remedies for nonpayment of rent
notwithstanding, if the monthly base rent and additional rent payment is not
received by Lessor on or before the first day of the month for which the rent is
due, or if any other payment due Lessor by Lessee is not received by Lessor on
or before the first day of the month next following the month in which Lessee
was invoiced, a late payment charge equal to the greater of $250.00 or five
percent (5%) of such past due amount shall become due and payable, after a 5 day
grace period, in addition to such amounts owed under this Lease.
2.05 INCREASE IN INSURANCE PREMIUMS. If an increase in any insurance
premiums paid by Lessor for the Building is caused by Lessee's use of the Leased
Premises in a manner other than as set forth in Section 1.06, or if Lessee
vacates the Leased Premises and causes an increase in such premiums, then Lessee
shall pay to Lessor, as additional rent, the amount of such increase to Lessor.
2.06 SECURITY DEPOSIT. The security deposit set forth in Section 1.07 shall
be held by Lessor in a federally insured interest bearing account for the
performance of Lessee's covenants and obligations under this Lease, it being
expressly understood that the security deposit shall not be considered an
advance payment of rental or a measure of Lessor's damage in case of default
hereunder by Lessee. Upon the occurrence of any event of default by Lessee or
breach by Lessee of Lessee's covenants under this Lease, Lessee forfeits any
rights to the interest earned and Lessor may, from time to time, without
prejudice to any other remedy, use the security deposit to the extent necessary
to make good any arrears of base rent or additional rent, or to repair any
damage or injury, or pay any expense or liability incurred by Lessor as a result
of the event of default or breach of covenant, and so long as Lessee is not in
default hereunder, any remaining balance of the security deposit shall be
returned by Lessor to Lessee within thirty (30) days following the fifth
anniversary of the Commencement Date so long as no event of default has occurred
before that date or sooner termination of this Lease. If any portion of the
security deposit is so used or applied, Lessee shall, upon ten (10) days written
notice from Lessor, deposit with Lessor by cash or cashier's check an amount
sufficient to restore the security deposit to its original amount.
2.07 HOLDING OVER. In the event that Lessee does not vacate the Leased
Premises upon the Expiration Date or sooner termination of this Lease, Lessee
shall be a tenant at will for the holdover period and all of the terms and
provisions of this Lease shall be applicable during that period, except that
Lessee shall pay Lessor as rental for the period of such holdover an amount
equal to 150% of the base rent plus additional rent which would have been
payable by Lessee had the holdover period been a part of the original term of
this Lease. Lessee agrees to vacate and deliver the Leased Premises to Lessor
upon Lessee's receipt of notice from Lessor to vacate. the rental payable
during the holdover period shall be payable to Lessor on demand. No holding over
by Lessee, whether with or without the consent of Lessor, shall operate to
extend the term of this Lease.
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ARTICLE 3.00 OCCUPANCY AND USE
3.01 USE. Lessee warrants and represents to Lessor that the Leased Premises
shall be used and occupied only for the purpose as set forth in Section 1.06.
Lessee shall occupy the Leased Premises, conduct its business and control its
agents, employees, contractors, invitees and visitors in such a manner as is
lawful, reputable. Lessor represents and warrants to Lessee that on the
Commencement Date, the Leased Premises will be in compliance with all current
laws, ordinances, orders, rules, regulations, and other governmental
requirements relating to the use, condition, and occupancy of the Leased
Premises, and all rules, orders, regulations and any body having jurisdiction
over the Leased Premises and the Building of which the Leased Premises are a
part. Lessee shall not permit any operation in the Leased Premises which emits
any odor or matter which intrudes into other portions of the Building, use any
apparatus or machine which makes undue noise or causes vibration in any portion
of the building or otherwise interfere with, annoy or disturb any other lessee
in its normal business operations or Lessor in its management of the Building.
Lessee shall neither permit any waste on the Leased Premises nor allow the
Leased Premises to be used in any way which would, in the opinion of Lessor, be
extra hazardous on account of fire or which would in any way increase or render
void the insurance on the Building.
3.02 SIGNS. No sign of any type or description shall be erected, placed or
painted in or about the Leased Premises or Building except those signs submitted
by Lessee to Lessor in writing and approved by Lessor in writing, and which
signs are in conformance with Lessor's sign criteria established for the
Building.
3.03 COMPLIANCE WITH LAWS, RULES AND REGULATIONS. Lessee, at Lessee's sole
cost and expense, shall comply with all laws (and interpretations thereof),
ordinances, orders, rules and regulations, now in force or which may hereafter
be in force, of state, federal, municipal or other agencies or bodies having
jurisdiction over use, condition and occupancy of the Leased Premises. Lessee
will comply with the rules and regulations of the Building adopted by Lessor
which are set forth on Exhibit "B", attached to and incorporated by reference
into this Lease. Lessor shall have the right, at all times, to change and/or
amend the rules and regulations in any reasonable manner as may be deemed
advisable for the safety, care, cleanliness, preservation of good order and
operation or use of the Building or the Leased Premises. All changes and
amendments to the rules and regulations of the Building will be sent by Lessor
to Lessee in writing and shall thereafter be carried out and observed by Lessee.
3.04 WARRANTY OF POSSESSION. Lessor warrants that it has the right and
authority to execute this Lease, and Lessee, upon payment of the required rents
and subject to the terms, conditions, covenants and agreements contained in this
Lease, shall have possession of the Leased Premises during the full term of this
Lease as well as any extension or renewal thereof, if any. Lessor shall not be
responsible for the acts or omissions of any other lessee or third party that
may interfere with Lessee's use and enjoyment of the Leased Premises.
3.05 INSPECTION. Lessor, its property manager, or its authorized agents
shall at any and all reasonable times have the right to enter the Leased
Premises after reasonable notice to inspect the same, to supply janitorial
service or any other service to be provided by Lessor, to show the Leased
Premises to prospective purchasers, mortgagees, or lessees, and to alter,
improve or repair the Leased Premises or any other portion of the Building.
Lessee hereby waives any claim for damages for injury or inconvenience to or
interference with Lessee's business, any loss of occupancy or use of the Leased
Premises, and any other loss occasioned thereby. Lessor shall at all times have
and retain a key with which to unlock all of the doors in, upon and about the
Leased Premises. Lessee shall not change Lessor's lock system, or add any
additional locks, or in any other manner prohibit Lessor from entering the
Leased Premises. Lessor shall have the right to use any and all means which
Lessor may deem proper to open any door in or to the Leased Premises in an
emergency without liability therefor.
3.06 ACCEPTANCE OF LEASED PREMISES: Lessee shall execute an Acceptance of
Premises/Tenant Estoppel Certificate essentially in the form attached hereto as
Exhibit "D" and by reference incorporated herein, acknowledging that the Lessee
has assumed possession of the Leased Premises and confirming the Commencement
Date/Completion Date for the term of this Lease. Said Acceptance of
Premises/Tenant Estoppel Certificate shall be executed by Lessee at the time
Lessee receives keys and assumes possession of the Leased Premises. Lessor will
construct the Leased Premises as promptly based upon an agreed construction
schedule this Lease in a good and workmanlike manner and in conformance with all
applicable federal, state and local laws. Lessor warrants the design,
construction and materials of the Leased Premises and materials of the Leased
Premises and all components of the Leased Premises including, without
limitation, heating, ventilating, air conditioning, roof, mechanical,
electrical, and other systems for one (1) year after the date of Substantial
Completion and will repair, restore, renovate and replace as its cost with goods
and material of equal quality in any part of the Premises that is or becomes
defective during that period. Lessor will indemnify Lessee against and hold
Lessee harmless from any material loss, liability and expense (including
reasonable attorney's fees and court costs) arising out of a breach of this
warranty or any material defect of workmanships, design or materials in that
period.
3.07 NON-SMOKING BUILDING. The Lessor has adopted a policy of non-smoking
(for all employees, agents or invitees) in all confined spaces, common areas or
leased areas, within the Building. Certain designated areas outside the Building
will be identified for smoking by the Lessee, his employees, agents or invitees.
Lessee hereby acknowledges that such designated outdoor areas are necessary and
reasonable to prevent smoking by Lessee, Lessee's employees, agents and invitees
in unauthorized areas of the Building.
ARTICLE 4.00 UTILITIES AND SERVICE
4.01 BUILDING SERVICES. Lessor shall provide water and electricity to the
Leased Premises during the term of this Lease. Lessee shall provide and pay for
all telephone equipment and charges to the Leased Premises. Lessor shall furnish
hot and cold water at those points of supply provided for general use of other
lessees in the Building, central heating and air conditioning in season (at
times Lessor normally provides these services to other lessees in the Building,
and at temperatures and in amounts as are considered by Lessor to be standard or
in compliance with any governmental regulations, such service on Saturday
afternoons, Sundays, evenings and holidays to be furnished only upon the prior
written request of Lessee, who shall bear the cost at Lessor's then prevailing
rate). Lessor shall also provide routine maintenance, painting and electric
lighting service for all public areas and special service areas of the Building
in the manner and to the extent deemed by Lessor to be standard. Lessor may, in
its sole discretion, provide additional services not enumerated herein. Failure
by Lessor to any extent to provide these services or any other services not
enumerated, or any cessation thereof, shall not render Lessor liable in any
respect for damages to either person or property, be construed as an eviction of
Lessee, work an abatement of any rentals or relieve Lessee from fulfillment of
any covenant in this Lease. Should any of the equipment or machinery providing
services in the Building break down, or for any cause cease to function
properly, Lessor shall use reasonable diligence to repair the same promptly, but
Lessee shall have no claim for rebate of any rentals on account of any
interruption in service occasioned from the repairs. Lessor reserves the right
from time to time to make changes in the utilities and services provided by
Lessor to the Building.
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4.02 THEFT OR BURGLARY. Lessor shall not be liable to Lessee for losses to
Lessee's property or personal injury caused by criminal acts or entry by persons
into the Leased Premises or the Building.
4.03 JANITORIAL SERVICE. Lessor shall furnish janitorial services to the
Leased Premises and public areas of the Building five (5) times per week during
the term of this Lease, excluding holidays. Lessor shall not provide janitorial
service to any kitchens or storage areas included in the Leased Premises.
4.04 EXCESSIVE UTILITY CONSUMPTION. Lessee shall pay all utility costs, as
such may be determined by Lessor, occasioned by electrodata processing machines,
telephone equipment, computers and other equipment of high electrical
consumption, including without limitation, the cost of installing, servicing and
maintaining any special or additional inside or outside wiring or lines, meters
or transformers, poles, air conditioning costs, or the cost of any other
equipment necessary to increase the amount or type of electricity or power
available to the Leased Premises.
4.05 WINDOW COVERINGS. Lessor shall furnish and install window coverings on
all exterior windows in the Leased Premises so as to maintain a uniform exterior
appearance of the Building. Lessee shall not remove or replace these window
coverings or install any other window covering which would affect the exterior
appearance of the Building. Lessee may install lined or unlined over draperies
on the interior sides of the window coverings furnished by Lessor for interior
appearance or to reduce light transmission, provided such over draperies do not
affect the exterior appearance of the Building or affect the operating of the
Building's heating, ventilating and air conditioning systems.
4.06 CHARGE FOR SERVICE. All costs incurred by Lessor in providing the
services set forth in Article 4.00 (except those charges paid by Lessee pursuant
to Section 4.04) shall be subject to the additional rent provisions in Section
2.03.
ARTICLE 5.00 REPAIRS AND MAINTENANCE
5.01 LESSOR REPAIRS. Lessor shall not be required to make any improvements,
replacements or repairs of any kind or character to the Leased Premises or the
Building during the term of this Lease except as are set forth in this Section
5.01. Lessor shall maintain only the roof, foundation, parking and common areas,
the structural soundness of the exterior walls of the Building and the doors,
corridors, windows and other structures or equipment serving the Leased
Premises. Lessor's cost of maintaining and repairing the items set forth in this
Section 5.01 are subject to the additional rent provisions in Section 2.03.
Lessor shall not be liable to Lessee, except as expressly provided in this
Lease, for any damage or inconvenience, and Lessee shall not be entitled to any
abatement or reduction of rent by reason of any repairs, alterations or
additions made by Lessor under this Lease.
5.02 LESSEE REPAIRS. Lessee shall, at its sole cost and expense, repair or
replace any damage or injury to all or any part of the Leased Premises caused by
any act or omission of Lessee or Lessee's agents, employees, contractors,
invitees, licensees or visitors; provided, however, if Lessee fails to promptly
make the repairs or replacements, Lessor may, at its option, make the repairs or
replacements, and the costs of such repairs or replacements shall be charged to
Lessee as additional rent and shall become due and payable by Lessee with
payment of the base rent next due hereunder. All repairs made by Lessee shall be
subject to the requirements of Section 6.03 below.
5.03 REQUEST FOR REPAIRS. All requests for repairs or maintenance to the
Leased Premises of the Building that are the responsibility of Lessor pursuant
to any provision of this Lease must be made by Lessee in writing to Lessor at
the address in Section 16.07.
5.04 Lessee Damages. Lessee shall deliver the Leased Premises to Lessor in
as good condition as existed at the Commencement Date of this Lease, ordinary
wear and tear excepted. The cost and expense of any repairs necessary to restore
the condition of the Leased Premises shall be borne by Lessee.
ARTICLE 6.00 ALTERATIONS AND IMPROVEMENTS
6.01 LESSOR IMPROVEMENTS. If construction to the Leased Premises is to be
performed by Lessor prior to or during Lessee's occupancy, Lessor shall use
reasonable efforts to complete the construction of the improvements to the
Leased Premises, in accordance with plans and specifications agreed to by Lessor
and Lessee, which plans and specifications are attached hereto as Exhibit "C"
and are made a part of this Lease by reference. Within seven (7) days of receipt
of plans and specifications, Lessee shall execute a copy of the plans and
specifications and, if applicable, change orders setting forth the amount of any
costs to be borne by Lessee. In the event Lessee fails to execute the plans and
specifications and change order within the seven (7) day period, Lessor may, at
its sole option, declare this Lease cancelled or notify Lessee that the base
rent shall commence on the Completion Date even though the improvements to be
constructed by Lessor may not be complete. Any changes or modifications to the
approved plans and specifications shall be made and accepted by written change
order or agreement signed by both Lessor and Lessee and shall constitute an
amendment to this Lease.
6.02 LESSEE IMPROVEMENTS. Lessee shall not make or allow to be made any
alterations or physical additions in or to the Leased Premises without first
obtaining the prior written consent of Lessor, which consent may in the
reasonable judgement of Lessor be denied. Any alterations, physical additions or
improvements made by Lessee to the Leased Premises shall at once become the
property of Lessor and shall be surrendered to Lessor upon the Expiration Date
or sooner termination of this Lease; provided, however, that Lessor, at its
option, may require Lessee to remove any physical additions and/or repair any
alterations in order to restore the Leased Premises to the condition existing at
the Commencement Date, all costs of removal and/or alterations to be borne by
Lessee. This Section 6.02 shall not apply to moveable equipment or furniture
owned by Lessee, which may be removed by Lessee at the Expiration Date or sooner
termination of the term of this Lease only if Lessee is not then in default and
if such equipment and furniture are not then subject to any other rights, liens
and interest of Lessor.
6.03 MECHANICS LIEN. Lessee shall not permit any mechanic's or materialman's
lien(s) or other lien to be placed upon the Leased Premises or the Building on
account done by, for or at the request of Lessee and nothing in this Lease
shall be deemed or construed in any way as constituting the consent or request
of Lessor, express or implied, by inference or otherwise, to any person for the
performance of any labor or the furnishing of any materials to the Leased
Premises, or any part thereof, nor as giving Lessee any right, power, or
authority to contract for or permit the rendering of any services or the
furnishing of any materials that would give rise to any mechanic's,
materialman's or other lien against the Leased Premises or the Building. In the
event any such lien is attached to the Leased Premises or the Building, then, in
addition to any other right or remedy of Lessor, Lessor may, but shall not be
obligated to, obtain the release of or otherwise discharge the same. Any amount
paid by Lessor for any of the aforesaid purposes shall be paid by Lessee to
Lessor on demand as additional rent. At Lessor's request,
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Lessee shall post a completion bond or other financial security deemed adequate
by Lessor to avoid the potential for the placement of liens upon the property.
ARTICLE 7.00 CASUALTY AND INSURANCE
7.01 SUBSTANTIAL DESTRUCTION. If the Leased Premises should be totally
destroyed by fire or other casualty, or if the Leased Premises should be damaged
so that rebuilding cannot reasonably be completed within ninety (90) working
days after the date of written notification by Lessee to Lessor of the
destruction, this Lease shall terminate and Lessee shall be relieved of its
obligation to pay base rent and additional rent during the unexpired portion of
the Lease, effective as of the date of the written notification.
7.02 PARTIAL DESTRUCTION. If the Leased Premises should be partially damaged
by fire or other casualty, and rebuilding or repairs can reasonably be completed
within ninety (90) working days from the date of written notification by Lessee
to Lessor of the destruction, this Lease shall not terminate, and Lessor shall
at its sole risk and expense proceed with reasonable diligence to rebuild or
repair the Building or other improvements to substantially the same condition in
which they existed prior to the damage. If the Leased Premises are to be rebuilt
or repaired and are untenantable in whole or in part following the damage, the
rentals payable under this Lease during the period for which the Leased Premises
are untenantable shall be adjusted to such an extent as may be fair and
reasonable under the circumstances.
7.03 LESSOR'S INSURANCE. At all times during the term of this Lease Lessor
shall maintain a policy of insurance with the premiums paid in advance, issued
by and binding upon an insurance company with a Best rating of A-9 or better,
insuring the Building against all risk of direct physical loss in an amount
equal to at least ninety percent (90%) of the full replacement cost of the
Building and its improvements as of the date of the losses, in addition, Lessor
shall maintain two million dollars in liability insurance, however, Lessor shall
not be obligated in any way or manner to insure any personal property
(including, but not limited to, any furniture, machinery, goods or supplies) of
Lessee upon or within the Leased Premises, any fixtures installed or paid for by
Lessee upon or within the Leased Premises, or any improvements which Lessee may
construct on the Leased Premises. Lessee shall have no right in or claim to the
proceeds of any policy of insurance maintained by Lessor even though the cost of
such insurance is included as a component of Operating Expenses and partially
borne by Lessee as set forth in Section 2.03.
7.04 WAIVER OF SUBROGATION. Anything in this Lease to the contrary
notwithstanding, Lessor and Lessee hereby waive and release each other of and
from any and all right of recovery, claim, action or cause of action, against
each other, their agents, officers and employees, for any loss or damage that
may occur to the Leased Premises, improvements to the Building of which the
Leased Premises are a part, or personal property within the Building, by reason
of fire or the elements, regardless of cause or origin, including negligence of
Lessor or Lessee and their agents, contractors, officers and employees. Lessor
and Lessee agree immediately to give their respective insurance companies which
have issued policies of insurance covering all risk of direct physical loss,
written notice of the terms of the mutual waivers contained in this Section
7.04, and to have the insurance policies properly endorsed, if necessary, to
prevent the invalidation of the insurance coverage by reason of the mutual
waivers.
7.05 HOLD HARMLESS. Lessor shall not be liable to Lessee's employees,
contractors, agents, invitees, licensees or visitors, or to any other person,
for an injury to person or damage to property on or about the Leased Premises
caused by any act or omission of Lessee, its agents, servants or employees, or
of any other person entering upon the Leased Premises under express or implied
invitation by Lessee, or caused by the improvements located on the Leased
Premises becoming out of repair, the failure or cessation of any service
provided by Lessor, or caused by leakage of gas, oil, water or steam or by
electricity emanating from the Leased Premises. Lessee agrees to indemnify and
hold harmless Lessor of and from any loss, attorney's fees, expenses or claims
arising out of any such damage or injury.
ARTICLE 8.00 CONDEMNATION
8.01 SUBSTANTIAL TAKING. If all or a substantial part of the Leased Premises
are taken for any public or quasi-public use under any governmental law,
ordinance or regulation, or by right of eminent domain or by purchase in lieu
thereof, and the taking would prevent or materially interfere with the use of
the Leased Premises for the use specified in Section 1.06, then this Lease shall
terminate and Lessee shall be relieved of its obligation to pay base rent and
additional rent during the unexpired portion of the term of this Lease effective
on the date physical possession is taken by the condemning authority. Lessee
shall have no claim to the condemnation award or proceeds in lieu thereof.
8.02 PARTIAL TAKING. If a portion of the Leased Premises shall be taken for
any public or quasi-public use under any governmental law, ordinance or
regulation, or by right of eminent domain or by purchase in lieu thereof, and
this Lease is not terminated as provided in Section 8.01, Lessor shall, at
Lessor's sole risk and expense, restore and reconstruct the Building and other
improvements on the Leased Premises to the extent necessary to make it
reasonably tenantable. The rental payable during the unexpired portion of the
term of this Lease shall be adjusted to such an extent as may be fair and
reasonable under the circumstances. Lessee shall have no claim to the
condemnation award or proceeds in lieu thereof.
ARTICLE 9.00 ASSIGNMENT OR SUBLEASE
9.01 LESSOR ASSIGNMENT. Lessor shall have the right to sell, transfer or
assign, in whole or in part, its rights and obligations under this Lease and in
the Building to a transferee who is capable of performing Lessor's obligations
under this Lease and assumes and agrees to do so. Any such sale, transfer or
assignment shall operate to release Lessor from any and all liabilities under
this Lease arising after the date of such sale, assignment or transfer.
9.02 LESSEE ASSIGNMENT. Lessee shall not assign, in whole or in part, this
Lease, or allow it to be assigned, in whole or in part, by operation of law or
otherwise (including without limitation by transfer of a majority interest of
stock, merger, or dissolution, which transfer of majority interest of stock,
merger or dissolution shall be deemed an assignment) or mortgage or pledge the
same, or sublet the Leased Premises, in whole or in part, without the prior
written consent of Lessor which will not be reasonably withheld, conditioned or
delayed, and in no event shall any such assignment or sublease ever release
Lessee or any guarantor from any obligation or liability hereunder. No assignee
or sublessee of the Leased Premises or any portion thereof may assign or sublet
the Leased Premises or any portion thereof without the prior written consent of
Lessor, which will not be unreasonably withheld, conditioned or delayed.
9.03 CONDITIONS OF ASSIGNMENT. If Lessee desires to assign or sublet all or
any part of the Leased Premises, Lessee shall so notify Lessor at least thirty
(30) days in advance of the date on which Lessee desires to make such assignment
or sublease. Lessee shall submit to Lessor a non-refundable processing fee of
$300.00 for each such requests and shall provide Lessor with a copy of the
proposed assignment or sublease and such information as Lessor might request
concerning the proposed sublessee or assignee to allow Lessor to make informed
judgments as to the financial condition, reputation, operations and general
desirability of the proposed sublessee or assignee. Within fifteen (15) days
after Lessor's receipt of Lessee's proposed assignment or sublease and all
required information concerning the proposed sublessee or assignee, to include a
non-refundable processing fee, Lessor shall have the following options: (1) to
cancel this Lease as to the Leased Premises or portion
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thereof proposed to be assigned or sublet; (2) to consent to the proposed
assignment or sublease, and, if the rental due and payable by any assignee or
sublessee under any such permitted assignment or sublease (or a combination of
the rent payable under such assignment or sublease plus any bonus or any other
consideration or any payment incident thereto) exceeds the base rent and
additional rent payable under this Lease for such space, Lessee shall pay to
Lessor all such excess rent and other excess consideration within ten (10) days
following receipt thereof by Lessee; or (3) to refuse, in the exercise of its
good faith and reasonable judgement, to consent to the proposed assignment or
sublease, which refusal shall be deemed to have been exercised unless Lessor
gives Lessee written notice providing otherwise. Upon the occurrence of any
event of default, if all or any part of the Leased Premises are then assigned or
sublet, Lessor, in addition to any other remedies provided by this Lease or
provided by law, may, at its option, collect directly from the assignee or
sublessee all rents becoming due to Lessee by reason of the assignment or
sublease, and Lessor shall have a security interest in all properties on the
Leased Premises to secure payment of such sums. Any collection directly by
Lessor from the assignee or sublessee shall not be construed to constitute a
novation or a release of Lessee or any guarantor from the further performance of
its obligations under this Lease.
9.04 SUBORDINATION. Lessee accepts this Lease subject and subordinate to any
recorded mortgage or deed of trust lien presently existing or hereafter created
upon the Building and to all existing recorded restrictions, covenants,
easements and agreements with respect to the Building. Lessor is hereby
irrevocably vested with full power and authority to subordinate Lessee's
interest under this Lease to any first mortgage or deed of trust lien hereafter
placed on the Leased Premises or the Building, so long as Lessee receives a
subordination, non-disturbance and attornment agreement in form and substance
reasonably satisfactory to it and Lessee shall, upon demand, execute additional
instruments subordinating this Lease as Lessor may require. If the interests of
Lessor under this Lease shall be transferred by reason of foreclosure or other
proceedings for enforcement of any first mortgage or deed of trust lien on the
Leased Premises or the Building, Lessee shall be bound to the transferee
(sometimes hereinafter called the "Purchaser") at the option of the Purchaser,
under the terms, covenants and conditions of this Lease for the balance of the
term of this Lease remaining, including any extensions or renewals, with the
same force and effect as if the Purchaser were Lessor under this Lease, and, if
requested by the Purchaser, Lessee agrees to attorn to the Purchaser, including
the first mortgagee under any such mortgage if it be the Purchaser, as its
Lessor.
9.05 ESTOPPEL CERTIFICATES. Lessee shall furnish, from time to time, within
ten (10) days after receipt of a request from Lessor or Lessor's mortgagee, a
statement certifying, if applicable, the following: Lessee is in possession of
the Leased Premises; the Leased Premises are acceptable; the Lease is in full
force and effect; the Lease is unmodified; Lessee claims no present charge, lien
or claim of offset against rentals; the base rent and additional rent is paid
for the current month, but is not prepaid for more than one (1) month and will
not be prepaid for more than one (1) month in advance; there is no existing
default by reason of some act or omission by Lessor; and such other matters as
may be reasonably required by Lessor or Lessor's mortgagee. Lessee's failure to
deliver such statement, in addition to being a default under this Lease, shall
be deemed to establish conclusively that this Lease is in full force and effect
except as declared by Lessor, that Lessor is not in default of any of its
obligations under this Lease, and that Lessor has not received more than one (1)
month's Base rent and additional rent in advance.
ARTICLE 10.00 DEFAULT AND REMEDIES
10.01 DEFAULT BY LESSEE. The following shall be deemed to be events of
default by Lessee under this Lease: (1) Lessee shall fail to pay when due any
installment of base rent or additional rent or any other payment required
pursuant to this Lease; or (2) Lessee shall abandon or vacate all or any
substantial portion of the Leased Premises; or (3) Lessee shall fail to comply
with any term, provision or covenant of this Lease, other than the payment of
base rent and additional rent, and the failure is not cured within ten (10) days
after written notice to Lessee, unless the failure cannot reasonably be cured
within ten (10) days, in which event Lessee will not be in default so long as it
commences the cure within ten (10) days and diligently pursues it to completion;
or (4) Lessee shall file a petition or be adjudged bankrupt or insolvent under
any applicable federal or state bankruptcy or insolvency law or admit that it
cannot meet its financial obligations as they become due; or a receiver or
trustee shall be appointed for all or substantially all of the assets of Lessee;
or Lessee shall make a transfer in fraud of creditors or shall make an
assignment for the benefit of creditors; or (5) Lessee shall do or permit to be
done any act which results in a lien being filed against the Leased Premises or
the Building of which the Leased Premises are a part and the lien is not
released within thirty (30) days after Lessee received notice of it.
10.02 REMEDIES FOR LESSEE'S DEFAULT. Upon the occurrence of any event of
default set forth in this Lease, Lessor shall have the option to pursue any one
(1) or more of the remedies set forth herein without any notice or demand: (1)
Lessor may enter upon and take possession of the Leased Premises, by picking or
changing locks if necessary, and lock out, expel or remove Lessee and any other
person who may be occupying all or any part of the Leased Premises without being
liable for any claim for damages, and relet the Leased Premises on behalf of
Lessee and receive the rental directly by reason of the reletting. Lessee agrees
to pay Lessor on demand any deficiency that may arise by reason of any reletting
of the Leased Premises; further, Lessee agrees to reimburse Lessor for any
expenditures made by it in order to relet the Leased Premises, including, but
not limited to, leasing commissions, remodeling and repair costs. (2) Lessor may
enter upon the Leased Premises, by picking or changing locks if necessary,
without being liable for any claim for damages, and do whatever Lessee is
obligated to do under the terms of this Lease. Lessee shall reimburse Lessor on
demand for any expenses which Lessor may incur in effecting compliance with
Lessee's obligations under this Lease; further, Lessee agrees that Lessor shall
not be liable for any damages resulting to Lessee from effecting compliance with
Lessee's obligations under this Lease caused by the negligence of Lessor or
otherwise. (3) Lessor may terminate this Lease, in which event Lessee shall
immediately surrender the Leased Premises to Lessor, and if Lessee fails to
surrender the Leased Premises, Lessor may, without prejudice to any other remedy
which it may have for possession or arrearage in base rent and/or additional
rent, enter upon and take possession of the Leased Premises, by picking or
changing locks if necessary, and lock out, expel or remove Lessee and any other
person who may be occupying all or any part of the Leased Premises without being
liable for any claim for damages. Lessee agrees to pay on demand the amount of
all loss and damage which Lessor may suffer by reason of the termination of this
Lease under this Section 11.02, whether through inability to relet the Leased
Premises on satisfactory terms or otherwise. Notwithstanding any other remedy
set forth in this Lease, in the event Lessor has provided to Lessee any rent
concessions of any type or character, or waived any base rent and/or additional
rent, and Lessee fails to take possession of the Leased Premises on the
Commencement Date or Completion Date or otherwise defaults at any time during
the term of this Lease, the rent concessions, including any waived base rent
and/or additional rent, shall be cancelled and the amount of the base rent or
other rent concessions shall be due and payable immediately as if no rent
concessions or waiver of any base rent and/or additional rent or other rent
concessions had ever been granted. A rent concession or waiver of base rent
and/or additional rent shall not relieve Lessee of any obligation to pay any
other charge due and payable under this Lease including without limitation any
sum due under section 2.03. Notwithstanding anything contained in this Lease to
the contrary, this Lease may be terminated by Lessor only by mailing or
delivering written notice of such termination to Lessee, and no other act or
omission of Lessor shall be construed as a termination of this Lease.
ARTICLE 11.00 SUBSTITUTE PREMISES
11.01 RELOCATION. In the event Lessor determines to utilize the Leased
Premises for other purposes during the term of this Lease, Lessee agrees to
relocate to other space in the Building designated by Lessor, provided such
other space is of comparable size and contains comparable improvements as the
Leased Premises (the "Substitute Premises").
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11.02 EXPENSES. Lessor shall pay all of Lessee's reimbursable out-of-pocket
expenses for any such relocation to the Substitute Premises, including the
expenses of moving and reconstruction of improvements. In the event of such
relocation, this Lease shall continue in full force and effect without any
change in the terms or conditions of this Lease, but with the new location
substituted for the old location set forth in Section 1.02 of this Lease and a
revised base rent as set forth in Section 1.04 based upon the comparable rate
per rentable square foot then payable for the Leased Premises.
ARTICLE 12.00 HAZARDOUS MATERIALS
12.01 HAZARDOUS MATERIALS. In the event Hazardous Materials, as defined
below, are discovered to be present in, on, or below the Leased Premises or the
Building, Lessee shall not be required to pay any portion of the penalties,
fines or costs related to the presence of Toxic Materials and their removal,
including any costs incurred to comply with any and all rules, regulations,
codes, ordinances, statutes, and other requirements of any lawful governmental
authority respecting Hazardous Materials, pollution, harmful chemicals and other
materials which existed on or below the Leased Premises or the Building prior to
Lessee's occupancy of the Leased Premises; provided, however, if and to the
extent the presence of such Toxic Materials is directly or indirectly caused by
Lessee or its agents, employees or contractors, Lessee shall, at its sole cost
and expense, remove the same.
As used herein, the term "Hazardous Materials" shall include, but not be limited
to, any hazardous or toxic substance, material or waste which is or becomes
regulated by any local governmental authority, the United States Government, or
designated as a "hazardous substance" pursuant to Section 311 of the Federal
Water Pollution Control Act (33 U.S.C. (1317)), defined as a "hazardous waste"
pursuant to Section 1004 of the Federal Resource Conservation and Recovery Act,
42 U.S.C. (6901 et. seq.) (42 U.S.C. (6903)), or defined as a "hazardous
substance" pursuant to Section 101 of the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. (9601 et. seq. (42 U.S.C. 9601)).
Lessee shall not (either with or without negligence) cause or permit the escape,
disposal or release of any biologically or chemically active or other hazardous
substances, or materials in the Leased Premises of the Building. Lessee shall
not allow the storage or use of such substances or materials in any manner not
sanctioned by law or by the highest standards prevailing in the industry for the
storage and use of such substances or materials, nor allow to be brought into
the Building any such materials or substances except to use in the ordinary
course of Lessee's business, and then only after prior written notice is given
to Lessor of the identity of such substances or materials. Without limitation,
Hazardous Materials and materials shall include those described in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, 42 U.S.C. Section 9601 et. seq., the Resource Conservation and Recovery
Act, as amended, 42 U.S.C. Section 6901 et. seq., any applicable state or local
laws and the regulations adopted under these acts. If any lender or governmental
agency shall ever require testing to ascertain whether or not there has been any
release of Hazardous Materials, then the reasonable costs thereof shall be
reimbursed by Lessee to Lessor upon demand as additional charges if such
requirement applies to the Leased Premises. In addition, Lessee shall execute
affidavits, representations and the like from time to time at Lessor's request
concerning Lessee's best knowledge and belief regarding the presence of
Hazardous Materials on the Leased Premises or the Building. In all events,
Lessee shall indemnify Lessor in the manner elsewhere provided in this Lease
from any release of Hazardous Materials on the Leased Premises or the Building
during the term of this Lease occurring, or elsewhere if caused by Lessee or
persons acting under Lessee. The within covenants shall survive the Expiration
Date or earlier termination of this Lease.
ARTICLE 13.00 DEFINITIONS
13.01 ABANDON. "Abandon" is defined as the vacating of all or a substantial
portion of the Leased Premises by Lessee, and whether or not Lessee is in
default of the rental payments due under this Lease.
13.02 ACT OF GOD OR FORCE MAJEURE. An "Act of God" or "Force Majeure" is
defined as strikes, lockouts, sitdowns, material or labor restrictions by any
governmental authority, unusual transportation delays, riots, floods, washouts,
explosions, earthquakes, fire, storms, weather (including wet grounds or
inclement weather which prevents construction), acts of the public enemy, wars,
insurrections and any other cause not reasonably within the control of Lessor
and which by the exercise of due diligence Lessor is unable, wholly or in part,
to prevent or overcome.
13.03 BUILDING. "Building" as used in this Lease means the Building
described in Section 1.02, including the Leased Premises and the land upon which
the Building is situated.
13.04 COMMENCEMENT DATE. "Commencement Date" shall be the date set forth in
Section 1.03. The Commencement Date shall constitute the commencement of the
term of this Lease for all purposes, whether or not Lessee has actually taken
possession of the Leased Premises.
13.05 COMPLETION DATE. "Completion Date" shall be "Substantial Completion"
of the Leased Premises, Building, parking, landscaping and all Building
specifications as described in Exhibit C, subject only to minor punch list items
that do not interfere with Lessee's use of the Leased Premises for its intended
purpose, all of which shall be corrected by Lessor, at its cost, within sixty
(60) days after the Lessee's occupancy and issuance of an unconditional
certificate of occupancy. The cure of the punch list items will be done with as
little disturbance to Lessee as possible. Upon termination or expiration of this
Lease, except for ordinary wear and tear, damages caused by Lessor or Lessor's
representatives, condemnation, and damages, Lessee shall deliver the Leased
Premises back to Lessor in the then "as is" condition. The Completion Date shall
constitute the Commencement Date of the term of this Lease for all purposes,
whether or not Lessee has actually taken possession of the Leased Premises.
Lessor shall use its reasonable efforts to establish the Completion Date as the
date set forth in Section 1.03. In the event that the improvements to the Leased
Premises have not in fact been completed as of that date, Lessee shall notify
Lessor in writing of its objections. Lessor shall have a reasonable time after
delivery of the notice in which to take such corrective action as may be
necessary and shall notify Lessee in writing as soon as it deems such corrective
action has been completed and the Leased Premises is ready for occupancy. Upon
completion of construction, Lessee and Lessor shall execute an Acceptance of
Leased Premises/Tenant Estoppel Certificate substantially in the form of Exhibit
"D", attached hereto and incorporated by reference herein. Whether or not Lessee
has executed such agreement, Lessee's taking possession of the Leased Premises
shall be deemed to establish conclusively that the improvements in the Leased
Premises have been completed in accordance with the plans and specifications,
are suitable for the purposes for which they are let, and that the Leased
Premises are in a good and satisfactory condition as of the date possession was
so delivered to Lessee, except for latent defects, if any and punch list matters
that Lessee will submit to us or within sixty (60) days after the Commencement
Date.
13.06 SQUARE FEET. "Square Feet" or "Square Foot" as used in this Lease
includes the area contained within the Leased Premises together with a common
area percentage factor of the Leased Premises proportionate to the total area of
the Building.
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ARTICLE 14.00 LESSEE'S INSURANCE
14.01 FIRE AND EXTENDED COVERAGE. Lessee shall, during the term of this
lease, maintain at its expense, a policy of fire and extended coverage
insurance, with vandalism and malicious mischief endorsements, on all of its
personal property, including removable trade fixtures, located in the Leased
Premises and on additions, improvements and fixtures made or installed by Lessee
to or in the Leased Premises to the extent of at least ninety percent (90%) of
their full replacement value.
14.02 GENERAL LIABILITY AND PROPERTY. Lessee shall, during the term of this
lease, maintain at its expense a policy of commercial general liability
insurance insuring Lessee against liability arising out of the use occupancy or
maintenance of the Leased Premises with liability limits of not less than
$2,000,000 per occurrence, combined single limit for bodily injury and property
damage. The policy shall name Lessor as an additional insured.
14.03 ENDORSEMENTS. All insurance to be maintained by Lessee shall (a)
contain an endorsement requiring a minimum of thirty (30) days written notice
from the insurance company to Lessor before termination, cancellation of or
change in the policy; (b) be primary and noncontributing with respect to any
insurance maintained by Lessor; and (c) be issued by an insurance company
satisfactory to Lessor. Prior to the Commencement Date and at all times during
the term hereof, Lessee shall provide Lessor with satisfactory evidence that
Lessee has obtained the required insurance. Lessee shall increase the protection
afforded by the public liability and property damage insurance at Lessor's
reasonable request.
ARTICLE 15.00 MISCELLANEOUS
15.01 WAIVER. Failure of Lessor to declare an event of default by Lessee
immediately upon its occurrence, or delay in taking any action in connection
with an event of default, shall not constitute a waiver of the default by
Lessee, but Lessor shall have the right to declare the default at any time and
take such action as is lawful or authorized under this Lease. Pursuit of any one
(1) or more of the remedies set forth in Article 11.00 shall not preclude
pursuit of any one (1) or more of the other remedies provided elsewhere in this
Lease or provided by law, nor shall pursuit of any remedy constitute forfeiture
or waiver of any base rent or additional rent or damages accruing to Lessor by
reason of the violation of any of the terms, provisions or covenants of this
Lease. Failure by Lessor to enforce one or more of the remedies provided upon an
event of default by Lessee shall not be deemed or construed to constitute a
waiver of the default or of any other violation or breach of any of the terms,
provisions and covenants contained in this Lease.
15.02 ACT OF GOD. Lessor shall not be required to perform any covenant or
obligation in this Lease, or be liable in damages to Lessee, so long as the
performance or non-performance of the covenant or obligation is delayed, caused
or prevented by an Act of God, Force Majeure or by Lessee.
15.03 ATTORNEY'S FEES. In the event either party defaults in the performance
of any of the terms, covenants, agreements, or conditions contained in this
Lease, following a non-appealable judgement, the prevailing party shall be
entitled to recover from the losing party reasonable attorney's fees and cost of
suit.
15.04 SUCCESSORS. This Lease shall be binding upon and inure to the benefit
of Lessor and Lessee and their respective heirs, personal representatives,
successors and assigns. It is hereby covenanted and agreed that should Lessor's
interest in the Leased Premises cease to exist for any reason during the term of
this Lease, then notwithstanding the happening of such event, this Lease
nevertheless shall remain unimpaired and in full force and effect, and Lessee
hereunder agrees to attorn to the then owner of the Leased Premises.
15.05 RENT TAX. If applicable in the jurisdiction where the Leased Premises
is situated, Lessee shall pay and be liable for all rental, sales and use taxes
or other similar taxes, if any, levied or imposed by any city, state, county or
other governmental body having authority, such payments to be in addition to all
other payments required to be paid to Lessor by Lessee under the terms of this
Lease. Any such payment shall be paid concurrently with the payment of the base
rent, additional rent, or any other charge upon which the tax is based as set
forth above.
15.06 CAPTIONS. The captions appearing in this Lease are inserted only as a
matter of convenience and in no way define, limit, construe or describe the
scope or intent of any section.
15.07 NOTICE. All rent and other payments required to be made by Lessee
shall be payable to Lessor at the address set forth in section 1.05. All
payments required to be made by Lessor to Lessee shall be payable to Lessee at
the address set forth in this Section 16.07, or at any other address within the
United States as Lessee may specify from time to time by written notice. Any
notice or document required or permitted to be delivered by the terms of this
Lease shall be deemed to be delivered (whether or not actually received) when
deposited in the United States Mail, postage prepaid, certified mail, return
receipt requested, addressed to the parties at the respective addresses set
forth below:
Lessor: Lessee:
------- -------
Greenwood Plaza Partners, LLC New Era of Networks, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇ and 200
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
15.08 SUBMISSION OF LEASE. Submission of this Lease to Lessee for signature
does not constitute a reservation of space or an option to lease. This Lease is
not effective until execution by, and delivery to, both Lessor and Lessee.
15.09 CORPORATE AUTHORITY. If Lessee executes this Lease as a corporation,
each of the persons executing this Lease on behalf of Lessee does hereby
personally represent and warrant that Lessee is a duly authorized and existing
corporation, that Lessee is qualified to do business in the state in which the
Leased Premises are located, that Lessee, as a corporation, has full right and
authority to enter into this Lease, and that each person signing on behalf of
Lessee, as a corporation, is authorized to do so. In the event any
representation or warranty is false, all persons who execute this Lease on
behalf of Lessee shall be liable, individually, as Lessee.
15.10 SEVERABILITY. If any provision of this Lease or the application
thereof to any person or circumstances shall be invalid or unenforceable to any
extent, then the remainder of this Lease and the application of such provisions
to other persons or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law.
15.11 LESSOR'S LIABILITY. If Lessor shall be in default under this Lease
and, if as a consequence of such default, Lessee shall recover a money judgment
against Lessor, such judgment shall be satisfied only out of the right, title
and interest of Lessor in the Building as the same may then be encumbered and
neither Lessor nor any person or entity comprising Lessor shall be liable for
any deficiency. In no event shall Lessee have the right to levy execution
against any property of Lessor nor any person or entity comprising Lessor, other
than Lessor's interest in the Building as herein expressly provided.
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15.12 INDEMNITY. Except as disclosed in this Section 16.12, each party
hereto represents and warrants to the other that it has neither used or
consulted with any broker or similar person or entity in connection with this
Lease, and each party (the "Indemnitors") agrees to indemnify and hold harmless
the other party from and against any liability or claim, whether meritorious or
not, arising with respect to any broker or similar person from and against any
claims by such broker or entity for brokerage or similar commissions or fees
arising by reason of actions taken by the Indemnitor. Lessor has engaged the
services of Mile High Properties, LLC ("Mile High") in connection with this
Lease and shall pay a commission to Mile High in accordance with the listing
agreement between Greenwood Plaza Partners, LLC and Mile High.
15.13 AMENDMENT. THIS LEASE MAY NOT BE ALTERED, WAIVED, AMENDED OR EXTENDED
EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY LESSOR AND LESSEE.
15.14 LIMITATION OF WARRANTIES. LESSOR AND LESSEE EXPRESSLY AGREE THAT THERE
ARE AND SHALL BE NO IMPLIED WARRANTIES OF MERCHANTABILITY, HABITABILITY, FITNESS
FOR A PARTICULAR PURPOSE OR OF ANY OTHER KIND ARISING OUT OF THIS LEASE, AND
THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THOSE EXPRESSLY SET FORTH IN THIS
LEASE.
15.15 GOVERNING LAW. This Lease will be governed by the internal laws of the
State of Colorado.
15.16 PARKING. Lessor will provide Lessee with 178 unreserved parking
spaces, all parking is free at the commencement of the lease term. The Lessee
hereby acknowledges that the Lessor intends to construct a Parking Garage with
Phase Two of the Project. At such time (with adequate notice) the Lessor may
choose to charge the Lessee with a monthly parking fee for each reserved or
unreserved parking space within the Parking Garage.
15.17 ENTIRE AGREEMENT. IT IS EXPRESSLY AGREED BY LESSEE, AS A MATERIAL
CONSIDERATION FOR THE EXECUTION OF THIS LEASE, THAT THIS LEASE, WITH THE
SPECIFIC REFERENCES TO WRITTEN EXTRINSIC DOCUMENTS, IS THE ENTIRE AGREEMENT OF
THE PARTIES; THAT THERE ARE, AND WERE, NO VERBAL REPRESENTATIONS, WARRANTIES,
UNDERSTANDINGS, STIPULATIONS, AGREEMENTS OR PROMISES PERTAINING TO THIS LEASE OR
TO THE EXPRESSLY MENTIONED WRITTEN EXTRINSIC DOCUMENTS NOT INCORPORATED IN
WRITING IN THIS LEASE.
15.18 RENEWAL OPTION. Lessee is granted the option to extend the term of
this Lease for one extended term of five (5) years (the "Extension Term"),
provided (a) there is no event of default at the time of exercise of the option;
and (b) Lessee gives written notice of its exercise of the option at least one
hundred eighty (180) days prior to the expiration of the original term. The
Extension Term shall be upon the same terms and conditions, except (i) Lessee
shall have no further right of renewal after the Extension Term prescribed
above; and (ii) the base rent will be at the prevailing market rate.
15.19 RIGHT OF FIRST REFUSAL. Lessor hereby grants to Lessee a "one time"
right of first refusal to lease the remaining space on the third floor of the
building. When Lessor first desires to lease any of the Space to a third party,
Lessor shall first notify Lessee in writing of its intention to offer such space
for lease. Lessee shall have five days from its receipt of such notice to notify
Lessor in writing of Lessee's intent to exercise its right of first refusal and
to execute Lessor's standard Modification and Ratification of lease form
modifying this Lease to include the Space. If Lessee does not exercise its right
of first refusal, then this right of first refusal shall terminate and Lessor
may lease any portion or all of the Space to any third party. If Lessee elects
to exercise its right of first refusal to lease the Space, the lease term for
the Space shall expire simultaneously with the term of this Lease, and the rent
for the Space shall be based on the then prevailing rental rates for properties
of equivalent quality, size, utility and location, with the length of the Lease
term and credit standing of Lessee to be taken into account, but in no event
shall the rent be less than the rent set forth in subparagraph 1.04 of this
Lease, otherwise subject to all of the same terms, covenants, and conditions of
this Lease. Within fourteen days from the date of Lessee's election to exercise
its right of first refusal, Lessee shall execute plans and specifications and
other documents showing construction costs to be paid by Lessee, if any,
otherwise Lessee's right of first refusal shall terminate and Lessor may lease
the Space to any third party.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals as of the
day and year first above written.
LESSOR:
GREENWOOD PLAZA PARTNERS, LLC
By: [ILLEGIBLE]
------------------------------------------
Its: [ILLEGIBLE]
-----------------------------------------
LESSEE:
NEW ERA OF NETWORKS, INC.
By: [ILLEGIBLE]
------------------------------------------
Its: Senior V.P. Counsel
-----------------------------------------
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EXHIBIT "A"
THE LEASED PREMISES
Suite 100, containing 21,101 rentable square feet.
Suite 200, containing 21,204 rentable square feet.
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[ONE GREENWOOD PLAZA FLOOR PLANS]
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EXHIBIT "B"
RULES AND REGULATIONS
1. Lessor shall furnish Lessee four (4) keys to the Leased Premises without
charge. Additional keys shall be furnished to Lessee at a nominal charge.
Lessee shall not change locks on doors or install additional locks on doors to
the Leased Premises and the Building without the prior written consent of
Lessor. Lessee shall not make or cause to be made duplicates of any keys
procured from Lessor without the prior approval of Lessor. All keys to the
Leased Premises and the Building shall be surrendered to Lessor upon The
Expiration Date or sooner termination of this Lease.
2. Lessee shall refer to Lessor all contractors, contractor's representatives
and installation technicians rendering any service on or to the Leased Premises
for Lessor's prior written approval before performance of any contractual
service. Lessee's contractors and installation technicians shall comply with
Lessor's rules and regulations pertaining to construction and installation. This
provision shall apply to all work performed on or about the Leased Premises or
Building, including the installation of telephones, telegraph equipment,
electrical devices and attachments and installations of any nature affecting
floors, walls, woodwork, trim, windows, ceilings and equipment or any other
physical portion of the Leased Premises or Building.
3. Lessee shall not at any time occupy any part of the Leased Premises or
Building as sleeping or lodging quarters.
4. Lessee shall not place, install or operate on the Leased Premises or in any
part of the Building any engine, stove or machinery, or conduct mechanical
operations or ▇▇▇▇ thereon or therein, or place or use in or about the Leased
Premises or Building any explosives, gasoline, kerosene, oil, acids, caustics,
or any flammable, explosive or hazardous material without written consent of
Lessor.
5. Lessor shall not be responsible for lost or stolen personal property,
equipment, money or jewelry from the Leased Premises or the Building regardless
of whether such loss occurs when the Leased Premises or the Building is locked
against entry or not.
6. No dogs (except working dogs), cats, fowl, or other animals shall be brought
into or kept in or about the Leased Premises or Building.
7. Employees of Lessor or Lessor's property manager shall not receive or carry
messages for or to Lessee or other person or contract with or render free or
paid services to Lessee or any of Lessee's agents, employees or invitees.
8. None of the parking, plaza, recreation or lawn areas, entries, passages,
doors, elevators, hallways or stairways shall be blocked or obstructed or any
rubbish, litter, trash, or material of any nature placed, emptied or thrown into
these areas or such area used by Lessee's agents, employees or invitees at any
time for purposes inconsistent with their designation by Lessor.
9. The water closets and other water fixtures in the Building shall not be used
for any purpose other than those for which they were constructed, and any damage
resulting to them from misuse or by the defacing or injury of any part of the
Building shall be borne by the person who shall occasion it. No person shall
waste water by interfering with the faucets or otherwise.
10. No person shall disturb occupants of the Building by die use of any radios,
record players, tape recorders, musical instruments, the making of unseemly
noises or any unreasonable uses determined by Lessor.
11. Nothing shall be thrown out of the windows of the Building or down the
stairways or other passages to the Building.
12. Lessee, its employees, agents and invitees shall park their vehicles only in
those parking areas designated by Lessor. Lessee shall furnish Lessor with state
automobile license numbers of Lessee's vehicles and its employees' vehicles
within five (5) days after taking possession of the Leased Premises and shall
notify Lessor of any changes within five (5) days after such change occurs.
Lessee shall not leave any vehicle in a state of disrepair (including without
limitation, flat tires, out of date inspection stickers or license plates) on
tile Leased Premises or the Building. If Lessee or its employees, agents,
contractors or invitees park their vehicles in areas other than the designated
parking areas or leave any vehicle in a state of disrepair, then Lessor, after
giving verbal notice to Lessee of such violation, shall have the right to remove
such vehicles at Lessee's expense.
13. Parking in a parking garage or other area of the Building shall be in
compliance with all parking rules mid regulations including any sticker or other
identification system established by Lessor. Failure to observe the rules and
regulations shall terminate Lessee's right to use the parking garage or area and
subject the vehicle in violation of the parking rules and regulations to removal
and impoundment. No termination of parking privileges or removal of impoundment
of a vehicle shall create any liability on Lessor or be deemed to interfere with
Lessee's right to possession of the Leased Premises. Vehicles must be parked
entirely within the stall lines and all directional signs, arrows and posted
speed limits must be observed. Parking is prohibited in areas not striped for
parking, in aisles, where "No Parking" signs are posted, on ramps, in cross
hatched areas, and in other areas as may be designated by Lessor. Parking
stickers or other forms of identification supplied by Lessor shall remain the
property of Lessor and not the property of Lessee and are not transferable.
Every person is required to park and lock his vehicle. All responsibility for
damage to vehicles or persons is assumed by the owner of the vehicle or its
driver.
14. Movement of furniture or office supplies and equipment in or out of the
Building, or dispatch or receipt by Lessee of any merchandise or materials which
requires use of elevators or stairways, or movement through the Building's
entrances or lobby, shall he restricted to hours designated by Lessor. All such
movement shall be under supervision of Lessor and carried out in the manner
agreed between Lessee and Lessor by prearrangement before performance. Such
prearrangement shall include determination by Lessor of time, method, and
routing of movement and limitations imposed by safety or other concerns which
may prohibit any article, equipment or any other item from being brought into
the Building. Lessee assumes, and shall indemnify Lessor against, all risks and
claims of damage to persons and properties arising in connection with any said
movement.
15. Lessor shall not be liable for any damages from the stoppage of elevators
for necessary or desirable repairs or improvements or delays of any sort or
duration in connection with the elevator service.
16. Lessee shall not install floor covering within the Leased Premises without
the prior written approval of Lessor. The use of cement or other similar
adhesive materials not easily removed with water is expressly prohibited.
17. Lessee agrees to cooperate with and assist Lessor in the prevention of
canvassing, soliciting and peddling within the Building.
18. Lessor reserves the right to exclude from the Building, between the hours of
6:00 p.m. and 7:00 a.m. on weekdays and at all hours on Saturday, Sunday and
legal holidays, all persons who are not known to the Building or security
personnel, and who do not present a pass to the Building signed by Lessee.
Lessee shall be responsible for all persons for whom Lessee supplies a pass.
19. It is Lessor's desire to maintain the Building with the highest standard of
dignity and good taste consistent with comfort and convenience for Lessee and
other occupants of the Building. Any action or condition not meeting this high
standard and observed by Lessee should be reported directly to Lessor.
20. Lessor reserves the right to make such other and further reasonable rules
and regulations as in Lessor's judgement may from time to time be necessary for
the safety, care and cleanliness of the Building, and for the preservation of
good order therein.
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