LEASE OF SPACE (Single-Story Office)
LEASE
OF SPACE
(Single-Story
Office)
This
Lease is made as of June
19,
2006, between Clairbridge Companies, LLC a Colorado limited liability Company
(“CLAIRBRIDGE
LLC”),
as
the “Landlord”
and
Solera National Bancorp, Inc., a
Delaware corporation (“Tenant”).
I. GENERAL.
1.1 Consideration.
Landlord
enters into this Lease in consideration of the payment by Tenant of the rents
herein reserved and the keeping, observance and performance by Tenant of the
covenants and agreements of Tenant herein contained.
1.2 Exhibits
and Addenda to Lease.
The
Summary of Basic Lease Terms (“Summary”), Attachments, Exhibits and Addenda
listed below shall be attached to this Lease and be deemed incorporated in
this
Lease by this reference. In the event of any inconsistency between such Summary,
Attachments, Exhibits and Addenda and the terms and provisions of this Lease,
the terms and provisions of the Summary, Attachments, Exhibits and Addenda
shall
control. The Summary, Attachments, Exhibits and Addenda to this Lease
are:
Summary
of Basic Lease Terms
Exhibit
A
- Legal Descriptions of Land and Project
Exhibit
B
- Location of Demised Premises Within Building
Exhibit
C
- Rules & Regulations
Exhibit
D
- Signage Specifications
Exhibit
E
- Space Plan
Exhibit
F
- Work Letter
Exhibit
G- Addendum to Lease
Exhibit
H- Site plan designating Parking Spaces
II. DEFINITIONS;
DEMISE OF PREMISES.
2.1 Demise.
Subject
to the provisions, covenants and agreements herein contained, Landlord hereby
leases and demises to Tenant, and Tenant hereby leases from Landlord, the
Demised Premises as hereinafter defined, for the Lease Term as hereinafter
defined, subject to existing covenants, conditions, restrictions, easements
and
encumbrances affecting the same.
2.2 Demised
Premises.
The
“Demised
Premises”
shall
mean the space to be occupied by Tenant as depicted in Exhibit B attached
hereto and cross-hatched thereon. The depiction of the Demised Premises on
Exhibit “B”
contains
approximately the number of square feet of rentable
floor
area ("Floor
Area")
set
forth in the Summary, which depiction is herein referred to as the “Space
Plan”.
The
Demised Premises are within the Building which is located on the Land, as the
terms Building and Land are hereinafter defined.
2.3 Area
and Address.
The
Demised Premises contains approximately the Floor Area set forth in the Summary.
The address of the Demised Premises is the address set forth in the
Summary.
2.4 Land.
“Land”
shall
mean the parcel of real property more particularly described as the Land in
Exhibit A attached hereto.
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2.5 Building.
“Building”
shall
mean the building containing the Demised Premises, which is constructed on
the
Land and contains approximately the Floor Area set forth on the
Summary.
2.6 Improvements.
“Improvements”
shall
mean the Building, the Parking Area as hereinafter defined, and all other
fixtures and improvements owned by Landlord on the Land, including landscaping
thereon.
2.7 Project.
“Project”
shall
mean the buildings and other improvements constructed or hereafter constructed
on the Land described as the Project on Exhibit “A”
attached
hereto.
2.8 Property.
“Property”
shall
mean the Land, the Building and the Improvements and any fixtures and personal
property used in operation and maintenance of the Land, Building and
Improvements other than fixtures and personal property of Tenant and other
users
of space in the Building.
2.9 Common
Facilities.
“Common
Facilities”
shall
mean all of the Property except (a) the Demised Premises and (b) the other
premises in the Building leased or held for lease to other tenants. Common
Facilities shall include the Parking Area and any walks, driveways, and, if
applicable, lobby areas, halls, stairs, elevators, restrooms and all other
interior areas in the Building, or exterior areas, including monument sign
designated
by Landlord from time to time as Common Facilities for common use of Tenant
and
other users of space in the Building or the Project. If Landlord so elects,
the
Common Facilities shall also include any portions of the Common Facilities
of
the Project designated by Landlord from time to time.
2.10 Parking
Area.
“Parking
Area”
shall
mean that portion of the Common Facilities, shown on Exhibit H which
is
paved
and for the parking of motor vehicles, as designated by Landlord from time
to
time.
2.11 Use
of Common Facilities and Parking Area.
Tenant
is hereby granted the non-exclusive right and license to use, in common with
others entitled to such use, the Common Facilities, as it from time to time
exists, subject to the rights of Landlord reserved herein. Tenant shall not
interfere, at any time, with the rights of Landlord and others entitled to
use
any part of the Common Facilities, and shall not store, either permanently
or
temporarily, any materials, supplies or equipment in or on the Common
Facilities. Landlord shall have the right, at any time, to change, reduce or
otherwise alter the Common Facilities which may impact the Demised Premises,
in
its sole and subjective discretion and without compensation to Tenant, provided,
however, such change (a) does not reduce the number of Tenant’s parking
spaces provided in the Summary, and (b) permits reasonable access to
loading areas and to the Demised Premises, subject to the provisions of
Section
2.12.
Landlord may use any of the Common Facilities, including one or more street
entrances to the Project, as are necessary in Landlord’s judgment, for the
purpose of completing or making repairs or alterations in any portion of the
Project. Landlord reserves the right to the roof, the demising floors, walls
and
ceilings, and the exterior walls of the Building, and all telecommunications
and
utilities chases, ducts or other passageways located within the Demised
Premises, the Building or the Project (the “Reserved
Area”).
The
installation of any telecommunications or utilities wires, cables or other
equipment or facilities in the Reserved Area by Tenant or any other service
provider of Tenant shall be subject to the prior written approval of Landlord,
not to be unreasonably withheld.
Landlord shall be entitled to allocate the available space in the Reserved
Area
as Landlord determines from time to time. If Landlord determines that Tenant’s
use of the Reserved Area shall require additional improvements or other costs
to
Landlord, Landlord shall be entitled to charge such costs to Tenant as a
condition precedent to its consent.
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2.12 Covenant
of Quiet Enjoyment.
Landlord covenants and agrees that, provided a Default (as hereinafter defined)
by Tenant has not occurred, and provided that Tenant keeps, observes and
performs its covenants and agreements contained in this Lease, Tenant shall
have
quiet possession of the Demised Premises and such possession shall not be
disturbed or interfered with by Landlord. Landlord shall under no circumstances
be held responsible for restriction or disruption of access to the Project
from
public streets caused by construction work or other actions taken by
governmental authorities or other tenants (their employees, agents, visitors,
contractors or invitees) or any other cause not entirely within Landlord’s
direct control, and such circumstances shall not constitute a constructive
eviction of Tenant nor give rise to any right of Tenant against
Landlord.
2.13 Condition
of Demised Premises.
Except
as may be provided in the Work Letter attached hereto, Tenant covenants and
agrees that, upon taking possession of the Demised Premises, Tenant shall be
deemed to have accepted the Demised Premises “as is” and Tenant shall be deemed
to have waived any warranty of condition or habitability, suitability for
occupancy, use or habitation, fitness for a particular purpose or
merchantability, express or implied, relating to the Demised Premises. Except
of
any “Punch List” items agreed to by Landlord and Tenant pursuant to the Work
Letter, and any latent defects
Tenant’s acceptance of the Demised Premises shall constitute its acknowledgment
that the Demised Premises was in good condition, order and repair at the time
of
such acceptance including, without limitation, all doors,
and all
other mechanical and electrical systems. Notwithstanding the foregoing, Landlord
represents to Tenant that, upon completion of the Landlord Work, as of the
Commencement Date, the Demised Premises will be in material compliance with
all
applicable governmental building codes and regulations governing access,
including the Americans With Disabilities Act (“Access
Regulations”).
Landlord makes no representation and has no obligations with respect to any
modifications or amendments to the Access Regulations that may arise after
the
Commencement Date.
2.14 Relocation.
Intentionally Deleted
III. TERM
OF LEASE.
3.1 “Initial
Lease Term”
shall
mean the period of time specified in the Summary commencing at noon on the
Commencement Date specified in the Summary and expiring at noon on the
Expiration Date described in the Summary (the Initial Lease Term together with
any extensions thereof is herein referred to as the “Lease
Term”).
3.2 Early
Occupancy.
If
Tenant desires to take possession of the Demised Premises prior to the
Commencement Date, Tenant shall obtain the written consent of Landlord. If
Tenant takes possession of the Demised Premises prior to the Commencement Date,
for installation of telephone, computer equipment
and cabling, except the obligation to pay rent all provisions of this Lease
shall be effective as of the date Tenant so takes possession. If the Initial
Lease Term shall begin on a day other than the first day of a calendar month,
the monthly installment of Basic Rent for the fractional month at the beginning
of the Initial Lease Term shall be prorated based upon a thirty (30) day month,
and shall be paid on the date of the beginning of the Initial Lease Term. Upon
written request to Landlord, Tenant shall be permitted to gain access (but
not
possession) of the Demised Premises for up to 45 days
prior to
the Commencement Date for the sole purpose of installation of
cabling
equipment and furnishings, all at Tenant’s sole cost and expense.
3.3 Rent
Abatement.
If, for
any reason (other than Tenant Delay), Substantial Completion of the Landlord
Work (as defined in the Work Letter attached hereto as Exhibit
“F”)
has not
occurred by October 15, 2006, Tenant's obligation to pay Basic Rent and
Additional Rent shall be abated for each day after October 15, 2006 until
the date Substantial Completion of the Landlord Work occurs; the Lease shall
remain in full force and effect and the Tenant shall have no right to rescind
or
cancel the same. Landlord's agreement to defer Tenant's obligation for Basic
Rent and Additional Rent owing hereunder during such abatement period shall
be
in full satisfaction of any and all claims or amounts which Tenant might
otherwise be able to claim as a result of such delay in Landlord's delivery
of
possession of Premises. For example, if Substantial Completion occurs
November 1, 2006, Tenant will be entitled to 15 days of rent abatement and
will commence paying rent on November 15, 2006 even though the Commencement
Date is November 1, 2006.
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IV. RENT
AND OTHER AMOUNTS PAYABLE.
4.1 Basic
Rent.
Tenant
covenants and agrees to pay to Landlord, without offset, reduction, deduction,
counterclaim or abatement, basic rent for the Lease Term in the amount specified
as basic rent in the Summary (“Basic
Rent”).
The
term “year” and subsequent years as described in the Summary shall mean:
(a) as to the first year of the Lease Term, the period of time beginning on
the Commencement Date of the Lease Term and ending on December 31st
of the
calendar month in which the Commencement Date occurs; and (b) for
subsequent years, the corresponding period of time commencing upon the
expiration of the previous year and ending one (1) year thereafter.
4.2 Monthly
Payments.
Basic
Rent shall be payable monthly in advance, without notice, in equal installments
in the amount of monthly rent specified in the Summary. The first such monthly
installment shall be due and payable upon the commencement date
and a
like monthly installment shall be due and payable on or before the first day
of
each calendar month succeeding the Commencement Date recited in the Summary
during the Lease Term, except that the rental payment for any fractional
calendar month at the commencement or end of the Lease Term shall be prorated
based on a thirty (30) day month. Acceptance of Basic Rent or any other sums
payable by Tenant to Landlord from anyone other than Tenant shall not be
construed as a waiver by Landlord, nor as a release of Tenant, but the same
shall be taken to be a payment on account of Tenant.
4.3 Place
of Payments.
Basic
Rent and all other sums payable by Tenant to Landlord under this Lease shall
be
paid to Landlord at the place for payments specified in the Summary, or such
other place as Landlord may, from time to time, designate in
writing.
4.4 Lease
a Net Lease and Rent Absolute.
It is
the intent of the parties that the Basic Rent provided in this Lease shall
be a
net payment to Landlord; that this Lease shall continue for the full Lease
Term
notwithstanding any occurrence preventing or restricting use and occupancy
of
the Demised Premises, including any damage or destruction affecting the Demised
Premises, and any action by governmental authority relating to or affecting
the
Demised Premises, except as otherwise specifically provided in this Lease;
that
the Basic Rent and Additional Rent shall be absolutely payable without offset,
reduction, deduction, counterclaim, or abatement for any cause except as
otherwise specifically provided in this Lease; that Landlord shall not bear
any
costs or expenses relating to the Demised Premises or provide any services
or do
any act in connection with the Demised Premises except as otherwise specifically
provided in this Lease; and that Tenant shall pay, in addition to Basic Rent,
Additional Rent to cover costs and expenses relating to the Demised Premises,
the Common Facilities, and the Property, all as hereinafter
provided.
4.5 Additional
Rent.
Tenant
covenants and agrees to pay, as additional rent under this Lease (“Additional
Rent”),
without offset, reduction, deduction, counterclaim or abatement, all costs
and
expenses relating to the use, operation, maintenance and repair of the Demised
Premises by Tenant; Tenant’s Pro Rata Share (as defined in Section
4.6)
of the
Common Facilities Charges (as defined in Section
7.2);
Tenant’s Pro Rata Share of all Taxes (as defined in Section
5.1)
and
Landlord’s Insurance (as defined in Section 4.7); and all other costs and
expenses which Tenant is obligated to pay to Landlord or any other person or
entity under this Lease, whether or not stated or characterized as Additional
Rent.
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4.6 Tenant’s
Pro Rata Share.
“Tenant’s
Pro Rata Share”
shall
mean the percentage set forth in the Summary as Tenant’s Pro Rata Share which is
the percentage derived by dividing the approximate Floor Area of the Demised
Premises, as initially set forth in the Summary, by the approximate Floor Area
of the Building or the Project, as the case may be, as initially set forth
in
the Summary. Landlord and Tenant agree that such approximations of Floor Area
of
the Demised Premises, the Building and the Project are reasonable, and that
the
calculations of Basic Rent and Tenant’s Pro Rata Share based on such
approximations are not subject to revision under any circumstances, except
as
expressly provided in this Section
4.6.
If the
Floor Area of the Demised Premises, the Building, or the Project are ever
remeasured, the result may only be used to adjust the identification thereof,
and neither Landlord nor Tenant shall be entitled to claim an increase or
decrease in the amount of the monthly Basic Rent specified in the Summary or
the
amount of Tenant’s Pro Rata Share specified in the Summary based upon such
remeasurement. The Demised Premises shall be approximately as depicted in the
Space Plan, provided, however, in no event shall Landlord be liable to Tenant
or
Tenant have any claims or rights against Landlord if the actual Floor Area
of
the Demised Premises is different than the estimated Floor Area of the Demised
Premises herein provided. Notwithstanding anything to the contrary, if Landlord
from time to time increases or reduces the Floor Area of the Building or
constructs additional building(s) upon the Land or the Project, as the case
may
be, then Landlord shall recalculate Tenant’s Pro Rata Share using the formulas
hereinabove set forth based upon the added or reduced Floor Area. Landlord
shall
be entitled to provide services for the Common Facilities for either the
Building or the Project, as Landlord determines from time to time. Landlord
shall be entitled to charge from time to time all or any item of the Common
Facilities Charges, Taxes, Landlord’s Insurance, or any other Additional Rent on
the basis of either the Building or the Project. For all items to be charged
for
the Building, the Tenant’s Pro Rata Share of the Building shall be used and, for
all items relating to the Project, Tenant’s Pro Rata Share of the Project shall
be used for the purposes of calculating such items, as determined by
Landlord.
4.7 Monthly
Deposits.
Tenant
shall pay, as Additional Rent, to Landlord, as a monthly deposit (“Monthly
Deposit”),
in
advance, without notice, on the day that payment of Basic Rent is due, an amount
equal to 1/12 of Landlord’s estimate of Tenant’s Pro Rata Share of Taxes
(defined in Section 5.1),
Property Insurance (defined in Section
6.1)
and
Liability Insurance (defined in Section
6.2)
(such
Property Insurance and Liability Insurance are collectively referred to herein
as “Landlord’s
Insurance”),
and
Common Facilities Charges (defined in Section
7.2).
4.8 Security
Deposit.
Upon
execution of this Lease by Tenant, Tenant shall deposit with Landlord the amount
specified as a security deposit in the Summary (“Security
Deposit”).
The
Security Deposit with interest shall
be
retained by Landlord and may be applied by Landlord, to the extent necessary,
to
pay and cover any loss, cost, damage or expense, including attorneys’ fees
sustained by Landlord by reason of the failure of Tenant to comply with any
provision, covenant or agreement of Tenant contained in this Lease. To the
extent not necessary to cover such loss, cost, damage or expense, the Security
Deposit, without any interest thereon, shall be returned to Tenant within sixty
(60) days after the expiration of the
Lease
Term or as may be otherwise provided by law.
The
Security Deposit shall not be considered as an advance payment of rent or as
a
measure of the loss, cost, damage or expense which is or may be sustained by
Landlord. If all or any portion of the Security Deposit is applied by Landlord
to pay any such loss, cost damage or expense, Tenant shall, from time to time,
promptly upon demand, deposit with Landlord such amounts as may be necessary
to
replenish the Security Deposit to its original amount
4.9 General
Provisions as to Monthly Deposits and Security Deposit.
Landlord may commingle the Security Deposit or Monthly Deposits with Landlord’s
own funds and use such funds as Landlord determines. In no event shall Landlord
be required to hold such funds in escrow or trust for Tenant. Landlord shall
not
be obligated to pay interest to Tenant on account of the Monthly Deposits and
Security Deposit. In the event of a transfer by Landlord of Landlord’s interest
in the Demised Premises, Landlord or the property manager of Landlord may
deliver the remaining balance of any Monthly Deposits and Security Deposit
to
the transferee of Landlord’s interest, advise Tenant of the name and address of
such transferee and Landlord and such property manager shall thereupon be
discharged from any further liability to Tenant with respect to such Monthly
Deposits and Security Deposit. In the event of a Transfer (as defined in
Section
8.16)
by
Tenant of Tenant’s interest in this Lease, Landlord shall be entitled to return
the Monthly Deposits and Security Deposit to Tenant’s successor in interest and
Landlord shall thereupon be discharged from any further liability with respect
to the Monthly Deposits and Security Deposit.
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4.10 Annual
Adjustment.
Following the end of each calendar year of the Lease Term, Landlord shall submit
to Tenant a statement setting forth the exact amount of Tenant’s Pro Rata Share
of Taxes, Landlord’s Insurance, and Common Facilities Charges for the previous
calendar year (the “Statement”).
The
Statement shall also set forth the estimated the Monthly Deposits for the
current calendar year. If Landlord determines that the actual amount of Tenant’s
Pro Rata Share of Taxes, Landlord’s Insurance, and Common Facilities Charges,
collectively for
the
previous calendar year exceeds the Monthly Deposits for such previous calendar
year, Tenant shall pay to Landlord, within ten (10) days after receipt of the
Statement, such deficiency in the amount reflected in the Statement. If Landlord
determines that the Monthly Deposits exceeded the actual amount of Tenant’s Pro
Rata Share of Taxes, Landlord’s Insurance and Common Facilities Charges,
collectively for
the
previous calendar year, the excess amount shall, at Landlord’s option and,
except as may be otherwise provided by law, either be paid to Tenant or credited
against future Monthly Deposits or against Basic Rent, Additional Rent or other
amounts payable by Tenant under this Lease. If Tenant disputes any Statement
submitted by Landlord, including the estimated Monthly Deposits, Tenant shall
give Landlord notice of such dispute within thirty (30) days
after Landlord provides the Statement to Tenant. If Tenant does not give
Landlord timely notice, Tenant waives its right to dispute that particular
Statement and Tenant shall be deemed to have accepted the calculation of the
Taxes, Landlord’s Insurance and Common Facilities Charges and Tenant’s Pro Rata
Share thereof for such calendar year, and Tenant shall not be thereafter
entitled to dispute or object to that particular Statement or the calculation
thereof. If Tenant timely objects and provided that Tenant has paid the entire
amount of Tenant’s Pro Rata Share of Taxes, Landlord’s Insurance and Common
Facilities Charges and is not in default of its obligations under this Lease,
then Tenant for a period of thirty (30) days after Tenant’s notice may engage
its own certified public accountants (“Tenant’s
Accountants”)
to
verify the accuracy of the Statement objected to by Tenant. During such thirty
(30) period, Tenant’s Accountants shall be entitled to examine the books and
records of Landlord pertaining to that particular Statement, which examination
shall be conducted only during the regular business hours of Landlord at the
office where Landlord maintains such books and records. Tenant’s Accountants
shall enter into a confidentiality agreement with Landlord satisfactory to
Landlord. Tenant shall deliver to Landlord copies of all audits, reports or
other results from its examination within fifteen (15) days after receipt
thereof by Tenant.
All
costs incurred by Tenant for Tenant’s Accountants shall be paid by Tenant;
provided
that if
tenant has been overcharged by more then 5%, the cost of Tenant’s Accountants
shall be paid by landlord. Notwithstanding any pending dispute, Tenant shall
continue to pay Landlord the amount of the estimated Monthly Deposits until
such
amount has been determined to be incorrect. The amounts of Taxes, Landlord’s
Insurance and Common Facilities Charges payable by Tenant for the calendar
years
in which the Lease Term commences and expires shall be subject to the provisions
hereinafter contained in this Lease for proration of such amounts in such years.
Prior to the dates on which payment is due for Taxes, Landlord’s Insurance and
Common Facilities Charges, Landlord shall make payment of Taxes, Landlord’s
Insurance and Common Facilities Charges, to the extent of funds from Monthly
Deposits are available therefor and, upon request by Tenant, shall furnish
Tenant with a copy of any receipt for such payments. Except for Landlord’s
obligation to make payments out of funds available from Monthly Deposits, the
making of Monthly Deposits by Tenant shall not limit or alter Tenant’s
obligation to pay Taxes and to maintain insurance as elsewhere provided in
this
Lease. The obligations of the parties under this Section shall survive the
termination or expiration of this Lease or the early termination of Tenant’s
right to occupy the Demised Premises.
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V. TAXES.
5.1 Covenant
to Pay Taxes.
Tenant
covenants and agrees to pay, as Additional Rent, Tenant’s Pro Rata Share of
Taxes, as hereinafter defined, which accrue during or are attributable to the
Lease Term, as it may be extended from time to time . “Taxes”
shall
mean all taxes, assessments
or other
impositions, general or special, ordinary or extraordinary, of every kind or
nature, which may be levied, assessed or imposed upon or with respect to the
Property or the Project (as the case may be), or any part thereof, or upon
any
building, improvements or personal property at any time situated thereon. Taxes
shall exclude income, capital stock, estate, inheritance franchise. Taxes shall
not include any interest, fine or penalty for late payment.
5.2 Proration
at Commencement and Expiration of Term.
Taxes
shall be prorated between Landlord and Tenant for the year in which the Lease
Term commences and for the year in which the Lease Term expires as of,
respectively, the commencement date of the Lease Term and the date of expiration
of the Lease Term, except as hereinafter provided. Additionally, for the year
in
which the Lease Term expires, Tenant shall be liable without proration for
the
full amount of Taxes relating to any improvements, fixtures, equipment or
personal property which Tenant is required to remove or in fact removes as
of
the expiration of the Lease Term. Proration of Taxes shall be made on the basis
of actual Taxes. Tenant’s Pro Rata Share of Taxes for the years in which the
Lease Term commences and expires shall be paid and deposited with the Landlord
through Monthly Deposits as hereinabove provided.
5.3 Special
Assessments.
If any
Taxes are payable in installments over a period of years, Tenant shall be
responsible only for installments for periods during the Lease Term with
proration, as above provided, of any installment payable prior to the
commencement date or after the expiration date of the Lease Term.
5.4 New
or Additional Taxes.
Tenant’s obligation to pay Tenant’s Pro Rata Share of Taxes shall include any
Taxes of a nature not presently in effect but which may hereafter be levied,
assessed or imposed upon Landlord or upon the Property or the Project (as the
case may be), if such tax shall be based upon or arise out of the ownership,
use
or operation of or the rents received therefrom, other than income taxes or
estate taxes of Landlord. For the purposes of computing Tenant’s liability for
such new type of tax or assessment, the Property shall be deemed the only
property of Landlord.
5.5 Landlord’s
Sole Right to Contest Taxes.
Landlord shall have the sole right to contest any Taxes. Landlord shall credit
Tenant with Tenant’s Pro Rata Share of any abatement, reduction or recovery of
any Taxes attributable to the Lease Term less Tenant’s Pro Rata Share of all
costs and expenses incurred by Landlord, including attorney’s fees, in
connection with such abatement, reduction or recovery.
VI. INSURANCE.
6.1 Property
Insurance.
Landlord covenants and agrees to maintain all-risk property
insurance (“Property
Insurance”)
for
the Building, the shell and core of the Building and the Demised Premises
at
not less
than 80% replacement value,
from
such company, with such deductible and on such terms and conditions as Landlord
deems appropriate, in its reasonable
discretion, from time to time including, without limitation, extended coverage
and insurance for loss of rent, boilers, exterior plate glass and other exterior
glass. Property Insurance obtained by Landlord need not name Tenant as an
additional insured party and may, at Landlord’s option, name any Mortgagee (as
herein defined) as an additional insured party as its interests may appear.
Tenant covenants and agrees to pay, as Additional Rent, its Pro Rata Share
of
the cost of the Property Insurance obtained by Landlord for the Property or
the
Project (as the case may be) and the cost of any deductible under such Property
Insurance.
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6.2 Tenant’s
Insurance.
Tenant
covenants and agrees to maintain throughout the Lease Term insurance coverage
at
least as broad as ISO Causes of Loss - Special Form Coverage against risk of
direct physical loss or damage (commonly known as “all risk”) for the full
replacement cost of Tenant’s equipment, fixtures, improvements, Changes (as
hereinafter defined) and personal property in the Demised Premises. Tenant
covenants and agrees to maintain throughout the Lease Term a commercial general
liability policy, including protection against death, personal injury and
property damage, issued by an insurance company qualified to do business in
the
state in which the Demised Premises are located and with (a) a single limit
of
not less than $1,000,000.00 per
occurrence and (b) an annual aggregate limit of not less than
$3,000,000.
Such
policy shall name Landlord, its property manager and the Mortgagee (as
hereinafter defined) as additional insureds, be primary to any other similar
insurance as such additional insureds, and provide that it may not be cancelled
or modified without at least thirty (30) days prior notice to Landlord and
Mortgagee. The minimum limits of such insurance do not limit the liability
of
Tenant hereunder. Prior to occupancy of the Demised Premises and prior to
expiration or the then-current policy, Tenant shall deliver to Landlord
certificates evidencing that insurance required under this Lease is in effect.
Tenant covenants and agrees to obtain all other insurance, coverages, and
endorsements customarily maintained by companies in the general business and
use
or reasonably requested by Landlord from time to time, including, without
limitation,
and
workers compensation insurance. The commercial general liability policy obtained
by Tenant shall not contain any retention or self-insurance provision, unless
otherwise approved in writing by Landlord.
6.3 Liability
Insurance.
Landlord covenants and agrees to maintain a commercial general liability policy
(“Liability
Insurance”)
covering the Common Facilities of the Property or the Project (as the case
may
be) in amounts at least equal to that required of Tenant from
such
company, with such deductible and on such terms and conditions as Landlord
deems
appropriate, in its reasonable
discretion, from time to time. Liability Insurance obtained by Landlord need
not
name Tenant as an additional insured party and may, at Landlord’s option, name
the Mortgagee as an additional insured party. Tenant covenants and agrees to
pay, as Additional Rent, its Pro Rata Share of the cost of the Liability
Insurance obtained by Landlord and the cost of any deductible under the
Liability Insurance.
6.4 Waiver
of Recovery.
Except
for Tenants indemnity obligations under Section
8.23
below,
Landlord and Tenant waive all right of recovery against the other and its
respective officers, partners, members, agents, representatives and employees
for loss or damage to its real and personal property kept in or about the
Building or the Project which is capable of being insured against under ISO
Causes of Loss - Special Form Coverage, or for loss of business revenue or
extra
expense arising out of or related to the use and occupancy of the Demised
Premises, to the extent there is valid and collectible insurance carried by
such
party or required to be carried by such party under this Lease. Each party
shall, upon obtaining the property damage insurance required by this Lease,
notify the insurance carrier that the foregoing waiver is contained in this
Lease and
to
obtain an appropriate waiver of subrogation in the policies.
6.5 Cooperation.
Landlord
and Tenant shall cooperate with each other in the collection of any insurance
proceeds which may be payable in the event of any loss, including execution
and
delivery of any proof of loss or other action required to such
recovery.
8
VII. OPERATING,
MAINTENANCE AND REPAIR EXPENSES.
7.1 Utility
Charges.
Tenant
covenants and agrees to contract in Tenant’s own name and to pay, as Additional
Rent, all charges for , gas, electricity, light, heat, power, telephone,
telecommunication, internet, or other data transmission or utility services
used, rendered or supplied to or for the Demised Premises. Gas and electric
utilities will be separately metered to the Demised Premises. If any other
utility charges are not separately metered or billed to the Demised Premises,
then Tenant shall pay, as Additional Rent, Tenant’s Pro Rata Share thereof to
Landlord, which amount shall be included in the Common Facilities
Charges.
7.2 Common
Facilities Charges.
Tenant
covenants and agrees to pay, as Additional Rent, Tenant’s Pro Rata Share of
Common Facilities Charges (as herein defined). The term “Common Facilities
Charges” shall mean: all costs and expenses of operating, repairing,
maintaining, upkeep
of the
Common Facilities, the Building, the Improvements, the Property and the Project
including, without limitation, upkeep and replanting of grass, trees, shrubs
and
landscaping; removal of dirt, debris, obstructions and litter from the Parking
Area, landscaped areas, sidewalks and driveways; 5 day janitorial and trash
removal for the Premises and trash and garbage disposal for the Common
Facilities and the tenants of the Property or Project; exterior window washing;
repairs,
resealing, re-striping, sweeping and snow and ice removal from the Parking
Area,
sidewalks, and driveways; removal of graffiti and repair of vandalism; heating,
ventilation and air conditioning units, systems, equipment and facilities
(“HVAC”)
serving the Demised Premises, other premises leased to other tenants of the
Property or the Project, the Building and the Common Facilities including,
without limitation, replacement of filters, periodic inspections and any
maintenance contracts (provided that Landlord shall not be obligated to carry
any maintenance contracts); building signs; stairways; elevators; skylights;
gas, electricity, light, heat, power and other utilities for the Common
Facilities; extermination services; fire protection systems, monitoring and
sprinkler systems; exterior painting; interior painting of the Common
Facilities; replacement of interior light bulbs, light fixtures and ballasts
in
the Common Facilities; maintenance and repairs to roofs; repair, maintenance
and
replacement of damaged or broken exterior glass or windows; water and sewage
disposal systems and charges; storm drainage systems and charges (including,
without limitation, any detention, drainage or pond areas located within the
Project); irrigation and landscaping sprinkler systems;
dues
and fees; supplies and the cost of any rental of equipment in implementing
such
services; wages, salaries, compensation, taxes, medical and other insurance,
pension and retirement plans, and all other benefits and costs of personnel
engaged in the operation, management, maintenance, service or security of the
Property or Project including, without limitation, property managers and all
other personnel for the daily supervision and performance thereof; charges
for
professional management and administration of the Building, not to exceed 3%
of
revenue, the
Common Facilities, the Property and the Project; all deductibles for Landlord’s
Insurance; all alterations, additions, improvements and other capital
expenditures for the Property or Project (a) in order to conform to changes
subsequent to the date of this Lease in any laws, ordinances, rules, regulations
or orders of any applicable governmental authority, (b) which are intended
as a cost or labor saving device or to effect other economies in the operation
of the Property or Project to the extent such costs are reduced or
(c) which are reasonably determined by Landlord to be necessary or
appropriate for the operation of the Property or Project, subject to
amortization of such costs
at a
market rate of interest over the useful life thereof, as reasonably
determined by Landlord’s accountants Collectively “Permitted” Capital Pass
Through Costs;
and
personal property taxes, licenses and permits. The Common Facilities Charges
shall not be subject to amortization except as otherwise expressly herein
required. Landlord may cause any or all of such services to be provided by
independent contractor(s) and sub-contractor(s). The cost of personnel
will
be
prorated, in Landlord’s reasonable
discretion, if such personnel provides services for other properties in addition
to the Property or Project.
9
Notwithstanding
any contrary provision above "Common Facilities Charges" shall not include
any
of the following: (A) costs for which Landlord actually receives reimbursement
by insurance, condemnation awards, warranties, or otherwise; (B) expenses
incurred in leasing, including advertising expenses or leasing commissions
paid
to agents of Landlord or other brokers; (C) costs (other than Permitted Capital
Pass Through Costs) of renovating or constructing space in the Project; (D)
depreciation of the Building or Landlord's personal property at the Building;
(E) interest on debt or amortization payments on any mortgage or deed of trust,
rental under any prime lease or similar rental under any other superior lease
or
sublease; (F) any wages, salaries or other compensation paid to any employee
not
employed for or on behalf of the Building (to the extent wages, salaries, or
other compensation are billed to the Building for any employee not employed
by
Landlord full-time on behalf of the Building, Landlord shall reasonably prorate
such employee's time and ▇▇▇▇ to the Building only such time as the employee
reasonably devotes to the Building or Building operations); (G) costs (other
than Permitted Capital Pass Through Costs) of alterations and capital
improvements which could not be expensed under generally accepted accounting
principles, including without limitation resurfacing of any parking lots; (H)
the costs incurred to remove or otherwise ▇▇▇▇▇ asbestos or asbestos-containing
materials or any hazardous or toxic materials from the Building; (K) that
portion of any payment made to an affiliate of Landlord that is in excess of
the
amount which would have been paid in the absence of such relationship; (L)
the
costs for repairs or maintenance that are reimbursed by others, including,
without limitation, reimbursement made on warranty claims; (M) interest, fines,
late payment charges or penalties payable due to the failure of Landlord to
pay
utilities or other charges in a timely manner; (N) costs or expenses of or
any
special services or equipment rendered or incurred for a tenant if the same
are
not rendered to Tenant; (O) expenses for correcting structural defects in the
construction of the Building or latent defects in the Premises; (P) reserves
for
Common Facilities Charges; and (Q) political and charitable
contributions;
7.3 Tenant’s
Maintenance Obligation.
Tenant,
at its sole cost and expense, shall maintain, repair, replace and keep the
Demised Premises and all improvements, fixtures and personal property thereon
in
good, safe and sanitary condition, order and repair and in accordance with
all
applicable laws, ordinances, orders, rules and regulations of governmental
authorities having jurisdiction. Tenant shall perform or contract for and
promptly pay, as Additional Rent, for trash and garbage disposal (to the extent
that Tenant’s trash and garbage disposal requirements exceed the usual
requirements of tenants in the Building, as determined by Landlord), janitorial
and cleaning services; security services, interior window washing services,
interior painting, repair and replacement of all damage to doors,
repair,
maintenance and replacement of damaged or broken interior glass, plate glass
and
other breakable materials, and replacement of interior light bulbs, light
fixtures and ballasts in
the
Demised Premises. Tenant shall operate, maintain, repair and replace the pipes
and other equipment and facilities for water, sewage and other utility services
in
the
Demised Premises from the point exclusively serving the Demised Premises, even
if outside of the Demised Premises. All costs of maintenance and repairs by
Tenant shall be considered Additional Rent hereunder. All maintenance and
repairs to be performed by Tenant shall be done promptly, in a good and
workmanlike fashion, and without diminishing the original quality of the Demised
Premises or the Property.
7.4 Landlord’s
Maintenance Obligation.
Landlord shall maintain and replace the exterior walls and structural elements
of the Building and the Improvements, which shall be at Landlord’s sole cost
except as expressly included in Common Facilities Charges. Landlord, at its
sole
cost and expense, shall be responsible for the replacement of the roofs of
the
Building. Landlord’s maintenance obligation under this Section shall be
determined in Landlord’s sole reasonable
discretion. For the purposes of this Section, all work and costs for the roofs
of the Building shall be considered to be maintenance and repairs included
in
the Common Facilities Charges, except for the replacement of the entire roofing
system of the Building by Landlord hereunder.
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7.5 Building
Services.
(a) Landlord
shall cause to be made available at general points of usage in the Demised
Premises facilities for the supply of domestic hot (or tempered) and cold
running water, and facilities for electric power for normal lighting and small
office equipment. Tenant shall maintain the heating and air conditioning for
the
Demised Premises at such temperatures as are customary for similar quality
office buildings in the area, as reasonably approved by Landlord, during not
less than Normal Business Hours (as herein defined). Normal Business Hours
shall
mean the hours of 8:00 a.m. to 5:30 p.m., Monday through Friday, and 8:00 a.m.
to 1:00 p.m. on Saturdays, except during any governmental or bank
holiday.
(b) Tenant
shall be entitled to connect high wattage electrical equipment (including,
without limitation, computer equipment and large copy machines) and install
heat
generating equipment or machinery in the Demised Premises provided that Tenant,
at its sole cost, shall be responsible for all alterations or improvements
to
the HVAC, electric or other utility systems serving the Demised Premises and
subject to Landlord’s prior written consent. Tenant shall not make any
alterations or improvements to the Demised Premises or install any equipment
or
machinery which would affect other HVAC systems in the Building. Tenant shall
pay, as Additional Rent, the cost of any modifications to the electrical system
or heating and air conditioning system of the Building necessitated by such
usage, the cost of separate metering if required by Landlord, and the cost
of
any additional electrical service provided to Tenant, unless billed directly
to
Tenant by the utility company.
(c) Landlord
shall not be liable for any damage, loss or expense incurred by Tenant by reason
of any interruption, reduction (permanent or temporary) or failure of any
utilities or services for the Demised Premises or the Building, unless caused
by
the gross negligence or international act of Landlord, its agents or
employees.
Landlord may, with notice to Tenant (except that no notice shall be required
in
the event of an emergency), cut off and discontinue any utilities and services
when such discontinuance is necessary in order to make repairs or alterations
or
if otherwise required in connection with the fulfillment of Landlord’s
obligations under this Lease. In no event shall Tenant be entitled to any
abatement of rent as a result of the Demised Premises being rendered unusable
for their intended purpose due to any such failure, interruption or reduction.
No failure, interruption or reduction of utilities or services shall be
construed as an eviction or disturbance of possession by Landlord and Tenant
shall have no right to terminate this Lease as a result thereof.
(d) Tenant
shall promptly notify Landlord of any accidents or defects in the Building
or
the Project of which Tenant becomes aware, including defects in pipes, electric
wiring and HVAC equipment, and of any condition which may cause injury or damage
to the Building or Project or any person or property therein.
VIII. OTHER
COVENANTS OF TENANT.
8.1 Limitation
of Use by Tenant.
Tenant
covenants and agrees to use the Demised Premises only for the use or uses set
forth as Permitted Uses by Tenant in the Summary and for no other purposes,
except with the prior written consent of Landlord, to be exercised in Landlord’s
sole and absolute discretion.
8.2 Compliance
with Laws.
Tenant
covenants and agrees that nothing shall be done or kept on the Demised Premises
in violation of any law, ordinance, order, rule or regulation of any
governmental authority having jurisdiction and that the Demised Premises shall
be used, kept and maintained in compliance with any such law, ordinance, order,
rule or regulation and with the certificate of occupancy issued for the Building
and the Demised Premises.
11
8.3 Compliance
with Insurance Requirements.
Tenant
covenants and agrees that nothing shall be done or kept on the Demised Premises
which might impair or increase the cost of insurance maintained with respect
to
the Demised Premises or the Property, which might increase the insured risks
or
which might result in cancellation of any such insurance.
8.4 No
Waste or Impairment of Value.
Tenant
covenants and agrees that nothing shall be done or kept on the Demised Premises
or the Property which might impair the value of the Demised Premises or the
Property, or which would constitute waste.
8.5 No
Structural or Electrical Overloading.
Tenant
covenants and agrees that nothing shall be done or kept on the Demised Premises
or the Building and that no improvements, changes, alterations, additions,
maintenance or repairs shall be made to the Demised Premises which might impair
the structural soundness of the Building, which might result in an overload
of
electrical lines serving the Building or which might interfere with electric
or
electronic equipment in the Building or on any adjacent or nearby property.
In
the event of violations hereof, Tenant covenants and agrees to immediately
remedy the violation at Tenant’s expense and in compliance with all requirements
of governmental authorities and insurance underwriters.
8.6 No
Nuisance, Noxious or Offensive Activity.
Tenant
covenants and agrees that no noxious or offensive activity shall be carried
on
upon the Demised Premises or the Property nor shall anything be done or kept
on
the Demised Premises or the Property which may be or become a public or private
nuisance or which may cause embarrassment, disturbance, or annoyance to others
in the Building or on adjacent or nearby property.
8.7 No
Annoying Lights, Sounds or Odors.
Tenant
covenants and agrees that no light shall be emitted from the Demised Premises
which is unreasonably bright or causes unreasonable glare, no sound shall be
emitted from the Demised Premises which is unreasonably loud or annoying; and
no
odor shall be emitted from the Demised Premises which is or might be noxious
or
offensive to others in the Building or on adjacent or nearby
property.
8.8 No
Unsightliness.
Tenant
covenants and agrees that no unsightliness shall be permitted on the Demised
Premises or the Property which is visible from any adjacent or nearby property.
Without limiting the generality of the foregoing, all unsightly conditions,
equipment, objects and conditions shall be kept enclosed within the Demised
Premises; no refuse, scrap, debris, garbage, trash, bulk materials or waste
shall be kept, stored or allowed to accumulate on the Demised Premises or the
Property except as may be enclosed within the Demised Premises; all pipes,
wires, poles, antennas and other facilities for utilities or the transmission
or
reception of audio or visual signals or electricity shall be kept and maintained
underground or enclosed within the Demised Premises or appropriately screened
from view; and no temporary structure shall be placed or permitted on the
Demised Premises or the Property without the prior written consent of Landlord,
in its sole and subjective discretion.
8.9 No
Animals.
Tenant
covenants and agrees that no animals shall be permitted or kept on the Demised
Premises or the Property, except as may be required for any person with a
disability.
8.10 Restriction
on Signs and Exterior Lighting.
Tenant
covenants and agrees that no signs or advertising devices of any nature shall
be
erected or maintained by Tenant on the Demised Premises or the Property and
no
exterior lighting shall be permitted on the Demised Premises or the Property,
except for signs complying with the signage specifications attached hereto
as
Exhibit D and approved by Landlord in writing, in its
reasonable discretion. Landlord shall permit Tenant the right to the use of
50%
of the monument sign.
12
8.11 No
Violation of Covenants.
Tenant
covenants and agrees not to commit, suffer or permit any violation of any
covenant, condition or restriction affecting the Demised Premises or the
Property.
8.12 Restriction
on Changes and Alterations.
Tenant
covenants and agrees not to improve, change, alter, add to, remove or demolish
any improvements on the Demised Premises (“Changes”),
without the prior written consent of Landlord which consent shall not be
unreasonably withheld, and unless Tenant complies with all conditions which
may
be imposed by Landlord, in its reasonable
discretion, in connection with such consent, provided that Landlord’s consent
shall not be required for interior, non-structural alterations which do not
affect building operating systems. Tenant agrees to pay, as Additional
Rent, to Landlord the reasonable costs and expenses of Landlord for
architectural, engineering or other consultants which may be reasonably incurred
by Landlord in determining whether to approve any such Changes. Landlord’s
consent to any Changes and the conditions imposed in connection therewith shall
be subject to all requirements and restrictions of any Mortgagee. If such
consent is given, no such Changes shall be permitted unless (a) Tenant
shall have procured and paid for all necessary permits and authorizations from
any governmental authorities having jurisdiction; (b) such Changes shall
not reduce the value of the Property; (c) such Changes are located wholly
within the Demised Premises, shall not adversely affect the structural integrity
of the Building or the operation of the HVAC, plumbing, electrical, water,
or
sewer systems servicing the Building or the Property; (d) such Changes
shall not affect or impair existing insurance on the Property; and
(e) Tenant, at Tenant’s sole cost and expense, shall maintain or cause to
be maintained workmen’s compensation insurance covering all persons employed in
connection with the work and obtains liability insurance covering any loss
or
damage to persons or property arising in connection with any such Changes and
such other insurance or bonds as Landlord may reasonably require. Tenant
covenants and agrees that any Changes approved by Landlord shall be completed
with due diligence and in a good and workmanlike fashion and in compliance
with
all conditions imposed by Landlord and all applicable permits, authorizations,
laws, ordinances, orders, rules and regulations of governmental authorities
having jurisdiction and that the costs and expenses with respect to such Change
shall be paid promptly when due and that the Change shall be accomplished free
of mechanics’ and materialmen’s liens. Tenant covenants and agrees that all
Changes shall become the property of the Landlord at the expiration or earlier
termination of the Lease Term or the early termination of Tenant’s right to
occupy the Demised Premises or, if Landlord so requests when Landlord consents
to their installation
Tenant
shall, at or prior to expiration of the Lease Term and at its sole cost and
expense, remove such Changes and restore the Demised Premises to their condition
prior to such Changes.
8.13 No
Mechanic’s Liens.
Tenant
covenants and agrees not to permit or suffer, and to cause to be removed and
released, any mechanic’s, materialmen’s or other lien on account of supplies,
machinery, tools, equipment, labor or material furnished or used in connection
with the construction, alteration, improvement, addition to or repair of the
Demised Premises by, through or under Tenant. At least twenty (20) days prior
to
any Changes, Tenant shall provide written notice to Landlord of the date of
commencement of any Changes. Landlord shall have the right, at any time and
from
time to time, to post and maintain on the Demised Premises and Building such
notices as Landlord deems necessary to protect the Demised Premises against
such
liens. Tenant shall have the right to contest, in good faith and with reasonable
diligence, the validity of any such lien or claimed lien, provided that Tenant
shall give to Landlord such security as may be reasonably requested by Landlord
to insure the payment of any amounts claimed, including interest and costs,
and
to prevent any sale, foreclosure or forfeiture of any interest in the Property
on account of any such lien, including, without limitation, bonding, escrow
or
endorsement of the title insurance policy of Landlord and any Mortgagee. If
Tenant so contests, then on final determination of the lien or claim for lien,
Tenant shall immediately pay any judgment rendered, with interest and costs,
and
shall cause the lien to be released and any judgment satisfied.
13
8.14 No
Other Encumbrances.
Tenant
covenants and agrees not to obtain any financing secured by Tenant’s interest in
the Demised Premises and not to encumber the Demised Premises or Landlord’s or
Tenant’s interest therein, without the prior written consent of Landlord, in its
sole and subjective discretion, and to keep the Demised Premises free from
all
liens and encumbrances except liens and encumbrances existing upon the date
of
commencement of the Lease Term or liens and encumbrances created by
Landlord.
8.15 Subordination
to Landlord Mortgages.
Tenant
covenants and agrees that this Lease and Tenant’s interest in the Demised
Premises shall be junior and subordinate to any mortgage or deed of trust
(“Mortgage”) now or hereafter encumbering the Property. Tenant requires that
Landlord
obtain in writing from
any
mortgagee or holder of a Mortgage now or hereafter encumbering the Property
(“Mortgagee”) to covenant not to disturb Tenant and this Lease, Landlord shall
promptly
make
such request to any mortgagee or within 30 days a holder
and Tenant shall pay, as Additional Rent, all costs, if any charged
by any Mortgagee for such non-disturbance covenant. In the event of a
foreclosure of any Mortgage, Tenant shall attorn to the party acquiring title
to
the Property as the result of such foreclosure. No act or further agreement
by
Tenant shall be necessary to establish the subordination of this Lease to any
such Mortgage, which subordination is self-executing, but Tenant covenants
and
agrees, upon request of Landlord, to execute within ten (10) days of written
request such documents as may be necessary or appropriate to confirm and
establish this Lease as subordinate to any Mortgage in accordance with the
foregoing provisions, so long as Tenant obtains the required covenant of
non-disturbance from any such lender. Alternatively,
Tenant covenants and agrees that, at the option of any Mortgagee, Tenant shall
execute documents as may be necessary to establish this Lease and Tenant’s
interest in the Demised Premises as superior to any such Mortgage within ten
(10) days after Tenant’s receipt thereof. If Tenant fails to execute any
documents required to be executed by Tenant under the provisions hereof, such
failure shall be deemed to be an immediate material Default by Tenant, and
Tenant shall be deemed to have agreed to and be bound by the covenants, terms
and conditions provided in such documents. If any Mortgagee or purchaser at
foreclosure thereof, succeeds to the interest of Landlord in the Land or the
Building, such person shall not be (i) liable for any act or omission of
Landlord under this Lease; (ii) liable for the performance of Landlord’s
covenants hereunder which arise prior to such person succeeding to the interest
of Landlord hereunder; (iii) bound by the payment of any rent which Tenant
may have paid more than one month in advance; (iv) liable for any security
deposit which was not delivered to such person; or (v) bound by any
modifications to this Lease to which such holder has not consented in
writing.
8.16 No
Assignment or Subletting.
(a) Tenant
covenants and agrees not to make or permit a Transfer by Tenant, as hereinafter
defined, without Landlord’s prior written consent, which consent shall not be
unreasonably withheld. A “Transfer”
by
Tenant shall include an assignment of this Lease, a sublease of all or any
part
of the Demised Premises or any assignment, sublease, transfer, mortgage, pledge
or encumbrance of all or any part of the Demised Premises or of Tenant’s
interest under this Lease or in the Demised Premises, by operation of law or
otherwise, or the use or occupancy of all or any part of the Demised Premises
by
anyone other than Tenant. Any such Transfer by Tenant without Landlord’s written
consent shall be void and shall constitute a Default by Tenant under this Lease.
If Landlord consents to any Transfer by Tenant, Tenant shall not be relieved
of
its obligations under this Lease and Tenant shall remain liable, jointly and
severally, and as a principal, not as a guarantor or surety, under this Lease,
to the same extent as though no Transfer by Tenant had been made, unless
specifically provided to the contrary in Landlord’s prior written consent. The
acceptance of rent by Landlord from any person other than Tenant shall not
be
deemed to be a waiver by Landlord of the provisions of this Section or of any
other provision of this Lease and any consent by Landlord to a Transfer by
Tenant shall not be deemed a consent to any subsequent Transfer by Tenant.
Notwithstanding anything to the contrary contained in this Section
8.16,
Tenant
shall be permitted to assign the Lease or sublease the Demised Premises to
any
Affiliate without Landlord’s prior consent, and not subject
to the remaining conditions of this Section
8.16.
An
“Affiliate”
means
any entity in which Tenant owns
a 51% or
greater ownership interest, or which owns a controlling interest in Tenant,
or
is a successor in interest to Tenant by merger or otherwise, provided its credit
is equal to or greater than Tenant's credit as of date of such assignment,
subletting or change in ownership structure.
14
(b) If
Tenant
requests Landlord’s consent to a Transfer, Tenant shall submit to Landlord in
writing the name of the proposed transferee, the effective date of the Transfer,
the terms of the proposed Transfer, a copy of the proposed form of sublease
or
assignment, and such information as to the business, reputation, responsibility,
and financial capacity of the transferee as Landlord shall reasonably require
to
evaluate the request. It shall be reasonable for the Landlord to withhold its
consent to any Transfer where: (i) in the case of a sublease, the subtenant
has not acknowledged that the provisions of this Lease control over any
inconsistent provision in the sublease; or (ii) in Landlord’s opinion, the
proposed transferee does not have the financial capacity or ability to perform
its obligations under the assignment or sublease; or (iii) the intended use
by the transferee would damage the goodwill or reputation of the Building;
or
(iv) the intended use is not compatible with other uses of the Building,
conflicts with another tenant’s right to exclusive use, or is not permitted by
applicable law or covenant. The foregoing criteria are not exhaustive, and
Landlord may withhold consent to a Transfer on any other reasonable grounds.
Tenant shall reimburse Landlord for all of Landlord’s costs incurred in
connection with any request for consent to a Transfer, including, without
limitation, a reasonable sum for attorneys’ fees.
(c) Alternatively,
at the request of Landlord, Tenant shall pay over to Landlord, as Additional
Rent, 50% of all
sums
in excess of Tenant costs in effecting such assignment or sublease,
received by Tenant in excess of the rent payable by Tenant hereunder which
is
attributable on an equally allocable Floor Area basis, to any subletting of
all
or any portion of the Demised Premises so subleased, and all consideration
received on account of or attributable to any assignment of this
Lease.
(d) If
Landlord consents to a Transfer by Tenant, then any option to renew this Lease,
right to extend the Lease Term, or option or right of refusal to expand the
Demised Premises shall automatically terminate.
(e) Tenant
covenants and agrees to pay, as Additional Rent to Landlord, the amount of
$750.00 as an administrative charge to compensate Landlord for processing such
request and any other reasonable costs and expenses incurred by Landlord in
connection with such request (including, without limitation, reasonable
attorneys’ fees), whether or not the consent of Landlord is given to the
Transfer requested by Tenant. Tenant shall pay such $750.00 administrative
charge and an estimated amount of the other costs and expenses, as determined
by
Landlord, which shall be due and payable to Landlord at the time that Tenant
submits such request for consent to the Transfer to Landlord, provided, however,
that upon request from Tenant, Landlord shall provide Tenant with the estimated
amount of such other costs and expenses. When the actual amount of such costs
and expenses are known by Landlord, then if such estimated amount paid by Tenant
is greater than the actual amount of such costs and expenses, Landlord shall
refund any such excess to Tenant. If such estimated amount paid by Tenant is
less than the actual amount of such costs and expenses, Tenant shall pay to
Landlord, within ten (10) days after demand by Landlord, any such additional
actual costs and expenses. The payment of such administrative charge and other
costs and expenses by Tenant shall be a condition precedent to the effectiveness
of any consent by Landlord to such Transfer.
15
(f) As
a
condition to Landlord’s consent to a Transfer by Tenant, any assignee shall
expressly assume all the obligations of Tenant under this Lease in a written
instrument reasonably satisfactory to Landlord and furnished to Landlord not
later than fifteen (15) days prior to the effective date of such assignment,
and
any subtenant shall covenant to Landlord to comply with all obligations of
Tenant under this Lease as applied to the portion of the Demised Premises so
sublet and to attorn to Landlord, at Landlord’s written election, in the event
of any termination of this Lease prior to the expiration date of the Lease
Term,
all of which shall be in a written instrument satisfactory to Landlord and
furnished to Landlord not later than fifteen (15) days prior to the effective
date of such sublease.
8.17 Annual
Financial Statements.
To the
extent allowed by banking law Tenant
covenants and agrees to furnish to Landlord, within fifteen (15) days after
written request thereof from Landlord, copies of financial statements of Tenant
prepared by, and if requested by Landlord, audited by a certified public
accountant, and agrees that Landlord may deliver any such financial statements
to any existing or prospective Mortgagee or purchaser of the Property. The
financial statements shall include a balance sheet as of the end of, and a
statement of profit and loss for, the preceding fiscal year of Tenant and,
if
regularly prepared by Tenant, a statement of sources and use of funds for the
preceding fiscal year of Tenant.
8.18 Payment
of Income and Other Taxes.
Tenant
covenants and agrees to pay, as Additional Rent, promptly when due, all personal
property taxes on personal property of Tenant on the Demised Premises and all
federal, state and local income taxes, sales taxes, use taxes, Social Security
taxes, unemployment taxes and taxes withheld from wages or salaries paid to
Tenant’s employees, the nonpayment of which might give rise to a lien on the
Demised Premises or Tenant’s interest therein, and to furnish, if requested by
Landlord, evidence of such payments.
8.19 Estoppel
Certificates.
Each of
Landlord and Tenant covenants and agrees to execute, acknowledge and deliver
to
the other, upon the requesting party's written request, a written statement
certifying that this Lease is unmodified (or, if modified, stating the
modifications) and in full force and effect; stating the dates to which Basic
Rent and Additional Rent have been paid; stating the amount of the Security
Deposit held by Landlord; stating the amount of the Monthly Deposits held by
Landlord for the then tax and insurance year; stating that, to requested party's
knowledge, there have been no defaults by Landlord or Tenant and no event which
with the giving of notice or the passage of time, or both, would constitute
such
a default (or, if there have been defaults, setting forth the nature thereof);
and stating such other matters concerning this Lease as Landlord may reasonably
request. Tenant agrees that such statement may be delivered to and relied upon
by any existing or prospective Mortgagee or purchaser of the Property. Tenant
agrees that a failure to deliver such a statement within ten (10) days after
written request from Landlord shall (a) constitute an immediate material Default
by Tenant and (b) be conclusive upon Tenant that this Lease is in full force
and
effect without modification except as may be represented by Landlord; that
there
are no uncured defaults by Landlord or Tenant under this Lease except as may
be
represented by Landlord; and that any representation by Landlord with respect
to
Basic Rent, Additional Rent, the Security Deposit, the Monthly Deposits and
any
other permitted matter are true.
8.20 Landlord
Right to Inspect and Show Premises and to Install “For
Sale”
Signs.
Tenant
covenants and agrees that Landlord and the authorized representatives of
Landlord shall have the right
to enter
the Demised Premises upon reasonable notice and in the company of an employee
of
Tenant at
any
reasonable time during ordinary business hours (or at any time in the event
of
an emergency) for the purposes of inspecting, repairing or maintaining the
same
or performing any obligations of Tenant which Tenant has failed to perform
hereunder after written notice and opportunity to cure or
for
the purposes of showing the Demised Premises to any existing or prospective
Mortgagee, purchaser or tenant
of the
Property or the Demised Premises. During the last 4 months of the
term.
Tenant
covenants and agrees that Landlord may at any time and from time to time place
on the Property or the Demised Premises a sign advertising the Property or
the
Demised Premises for sale or for lease. Landlord acknowledges the security
needs
and confidentiality of bank records and will respect Tenants
requirements.
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8.21 Landlord
Title to Fixtures, Improvements and Equipment.
Tenant
covenants and agrees that all fixtures and improvements on the Demised Premises
and all equipment and personal property relating to the use and operation of
the
Demised Premises (as distinguished from operations incident to the business
of
Tenant) including trade fixtures and personal property,
including all plumbing, heating, lighting, electrical and air conditioning
fixtures and equipment, whether or not attached to or affixed to the Demised
Premises, and whether now or hereafter located upon the Demised Premises, shall
be and remain the property of the Landlord upon expiration of the Lease Term
or
upon the early termination of Tenant’s right to occupy the Demised
Premises.
8.22 Removal
of Tenant’s Equipment.
Tenant
covenants and agrees to remove, at or prior to the expiration or earlier
termination of the Lease Term or at the early termination of Tenant’s right to
occupy the Demised Premises, all of Tenant’s Equipment, as hereinafter defined.
“Tenant’s Equipment” shall mean all equipment, apparatus, machinery, signs,
furniture, furnishings and personal property used in the operation of the
business of Tenant (as distinguished from the use and operation of the Demised
Premises). If such removal shall injure or damage the Demised Premises Tenant
covenants and agrees, at its sole cost and expense, at or prior to the
expiration of the Lease Term or at the early termination of Tenant’s right to
occupy the Demised Premises, to repair such injury and damage in good and
workmanlike fashion and to place the Demised Premises in the same condition
as
the Demised Premises would have been in if such Tenant’s Equipment had not been
installed. If Tenant fails to remove any of Tenant’s Equipment by the expiration
of the Lease Term or at the early termination of Tenant’s right to occupy the
Demised Premises, Landlord may, at its option, keep and retain any such Tenant’s
Equipment or dispose of the same and retain any proceeds therefrom, and Landlord
shall be entitled to recover from Tenant, any costs or expenses of Landlord
in
removing the same and in restoring the Demised Premises, in excess of the actual
proceeds, if any, received by Landlord from disposition thereof. Tenant releases
and discharges Landlord from any and all claims and liabilities of any kind
arising out of Landlord’s disposition of Tenant’s Equipment.
8.23 Tenant
Indemnification of Landlord.
Tenant
covenants and agrees to protect, indemnify, defend and save Landlord and
Landlord’s partners, members, managers, employees, agents, owner
representatives, property managers, beneficiaries, affiliates, successors,
assigns (“Related
Parties”)
harmless for, from and against all liability, obligations, claims, damages,
penalties, causes of action, costs and expenses, including attorneys’ fees,
imposed upon, incurred by or asserted against Landlord or its Related Parties
by
reason of (a) any accident, injury to or death of any person or loss of or
damage to any property occurring on or about the Demised Premises; (b) any
act or omission of Tenant or Tenant’s agents, officers, employees contractors,
representatives or any other person entering upon the Demised Premises under
express or implied invitation of Tenant (collectively, “Tenant’s
Agents”);
(c) any use which may be made of, or condition existing upon, the Demised
Premises; by Tenant any
improvements, fixtures or equipment upon the Demised Premises, including without
limitation any improvements to the Demised Premises made by Tenant or Tenant’s
Agents during any period prior to the Commencement Date; (e) any failure on
the part of Tenant or Tenant’s Agents to perform or comply with any of the
provisions, covenants or agreements of Tenant contained in this Lease;
(f) any violation of any
law,
ordinance, order, rule or regulation of governmental authorities having
jurisdiction over Tenant or Tenant’s Agents; and (g) any repairs,
maintenance or Changes to the Demised Premises by, through or under Tenant.
Tenant further covenants and agrees that, in case any action, suit or proceeding
is brought against Landlord or its Related Parties by reason of any of the
foregoing, Tenant shall, at Tenant’s sole cost and expense, defend Landlord in
any such action, suit or proceeding with counsel reasonably acceptable to
Landlord.
17
8.24 Landlord
Indemnification of Tenant.
Landlord covenants and agrees to protect, indemnify, defend and save Tenant
harmless from and against all liability, obligations, claims, damages,
penalties, causes of action, costs and expenses, including attorneys’ fees,
imposed upon, incurred by, or asserted against Tenant by reason of
(a) Landlord’s gross negligence or willful misconduct; or (b) a
default by Landlord under this Lease, after the lapse of all applicable notice
grace and cure periods. Tenant waives and releases any claims Tenant may have
against Landlord or its Related Parties for loss, damage or injury to person
or
property sustained by Tenant or Tenant’s Agents resulting from any cause
whatsoever other than gross negligence or willful misconduct of Landlord.
Notwithstanding anything to the contrary, the indemnification of Tenant by
Landlord provided in this Section
8.24
shall be
subject to all waivers, limitations and restrictions otherwise provided in
this
Lease. Notwithstanding anything to the contrary, Landlord and its Related
Parties shall not be personally liable with respect to any of the terms,
covenants and conditions of this Lease, and Tenant shall look solely to the
equity of Landlord in the Property in the event of any default or liability
of
Landlord under this Lease, such exculpation of liability to be absolute and
without any exception whatsoever.
8.25 Release
upon Transfer by Landlord.
In the
event of a transfer by Landlord of the Property or of Landlord’s interest as
Landlord under this Lease, Landlord’s successor or assign shall take subject to
and be bound by this Lease and in such event, Tenant covenants and agrees that
Landlord and its Related Parties shall be released from all obligations of
Landlord under this Lease, except obligations which arose and matured prior
to
such transfer by Landlord; that Tenant shall thereafter look solely to
Landlord’s successor or assign for satisfaction of the obligations of Landlord
under this Lease; and that, upon demand by Landlord or Landlord’s successor or
assign, Tenant shall attorn to such successor or assign.
8.26 Rules
and Regulations. Tenant
shall observe and comply with rules and regulations attached hereto as
Exhibit “C”,
which
may be amended from time to time by Landlord by providing written notice thereof
to Tenant. Landlord shall not be responsible to Tenant for the failure of any
other tenant of the Building to observe or comply with any of the rules or
regulations.
8.27 Tenant’s
Representations, Warranties and Covenants Concerning Use of Hazardous
Substances.
(a) Tenant
shall, at its sole cost and expense, keep and maintain the premises
in good
condition, ordinary wear and tear and damage by fire or other casualty excepted
and promptly respond to and clean up any release or threatened release by tenant
of
any
Hazardous Substance (as hereinafter defined) into the drainage systems, soil,
surface water, groundwater, or atmosphere, in a safe manner, in strict
accordance with Applicable Law (as hereinafter defined), and as authorized
or
approved by all federal, state, and/or local agencies having authority to
regulate the permitting, handling, and cleanup of Hazardous Substances;
provided, however, Tenant’s obligations under this sentence shall not include
any Hazardous Substances which Tenant proves existed on the Property on the
commencement of the Lease Term or were not caused
by
any act or omission of Tenant or Tenant’s Agents. Tenant and Tenant’s Agents
shall not use, store, generate, treat, transport, or dispose of any Hazardous
Substance at the Property without first obtaining Landlord’s written approval,
which consent shall be in Landlord’s sole and subjective discretion. Tenant
shall notify Landlord and seek such approval in writing at least thirty (30)
days
prior to bringing any Hazardous Substance onto the Property. Landlord may
withdraw approval of any such Hazardous Substance at any time, for reasonable
cause related to the threat of site contamination, or damage or injury to
persons, property or resources on or near the Property. Upon withdrawal of
such
approval, Tenant shall immediately remove the Hazardous Substance from the
site.
Landlord’s failure to approve the use of a Hazardous Substance under this
Section shall not limit or affect Tenant’s obligations under this Lease,
including Tenant’s duty to remedy or remove releases or threatened releases; to
comply with Applicable Law relating to the use, storage, generation, treatment,
transportation, and/or disposal of any such Hazardous Substances; or to
indemnify Landlord against any harm or damage caused thereby.
18
(b) For
any
month in which any Hazardous Substances have been used, generated, treated,
stored, transported or otherwise been present on or in the Property pursuant
to
the provisions of this Section, Tenant shall provide Landlord with a written
report listing the Hazardous Substances which were present on the Property;
all
releases of Hazardous Substances that occurred or were discovered on the Demised
Premises; all compliance activities related to such Hazardous Substances,
including all contacts with government agencies or private parties of any kind
concerning Hazardous Substances; and all manifests, business plans, consent
agreements or other documents relating to Hazardous Substances executed or
requested during that time period. The report shall include copies of all
documents and correspondence related to such activities and written reports
of
all oral contacts relating thereto. Tenant shall permit Landlord and its Related
Parties to enter into and upon the Demised Premises, without notice,
at all
reasonable times
(or
at any time in the event of an emergency) for the purpose of inspecting the
Demised Premises and all activities thereon, including activities involving
Hazardous Substances, or for purposes of maintaining any buildings on the
Demised Premises. Such right of entry and inspection shall not constitute
managerial or operational control by Landlord over any activities or operations
conducted on the Property by Tenant
and in
making any entry Landlord will respect Tenant's confidentiality and security
concerns in accordance with Section 8.20 above.
(c) Tenant
hereby indemnifies, defends and holds harmless Landlord from and against any
suits, actions, legal or administrative proceedings, demands, claims,
liabilities, fines, penalties, losses, injuries, damages, expenses or costs,
including interest and attorneys’ fees, incurred by, claimed or assessed against
Landlord or its Related Parties (i) under any laws, rules, regulations
including, without limitation, Applicable Laws, (ii) in any way connected
with any injury to any person or damage to any property, or (iii) any loss
to Landlord or its Related Parties occasioned in any way by Hazardous Substances
on the Property which are the responsibility of Tenant
provided
however, Tenant’s obligations under this sentence shall not include any
Hazardous Substances which Tenant proves existed on the Property on the
commencement of the Lease Term or were not caused
by
any act or omission of Tenant or Tenant’s Agents. This indemnity specifically
includes the direct obligation of Tenant to perform any remedial or other
activities required, ordered, recommended or requested by any agency, government
official or third party, or otherwise necessary to avoid or minimize injury
or
liability to any person, or to prevent the spread of pollution, however it
came
to be located thereon (hereinafter, the “Remedial
Work”).
Tenant shall perform all Remedial Work in its own name in accordance with
Applicable Laws. Without waiving its rights hereunder, Landlord may, at its
option, perform the Remedial Work and thereafter seek reimbursement for the
costs thereof. Tenant shall permit Landlord access to the Property to perform
any Remedial Work. Whenever Landlord has incurred costs described in this
Section, Tenant shall, within ten (10) days of receipt of notice thereof,
reimburse Landlord for all such expenses together with interest from the date
of
expenditure at the rate provided in Section
12.9
hereof.
(d) Without
limiting
its obligations under any other Section of this Lease, Tenant shall be solely
and completely responsible for responding to and complying with any
administrative notice, order, request or demand, or any third party claim or
demand relating to potential or actual contamination on the Property and
resulting from the acts of Tenant and Tenant’s Agents. The responsibility
conferred under this Section includes but is not limited to responding to such
orders on behalf of Landlord and defending against any assertion of Landlord’s
financial responsibility or individual duty to perform under such orders. Tenant
assumes all liabilities or responsibilities which are assessed against Landlord
in any action described under this Section. Tenant hereby waives, releases
and
discharges forever Landlord from all present and future claims, demands, suits,
legal and administrative proceedings and from all liability for damages, losses,
costs, liabilities, fees and expenses, present and future, arising out of or
in
any way connected with Landlord’s use, maintenance, ownership or operation of
the Property, any condition of environmental contamination of the Property,
or
the existence of Hazardous Substances in any state on the Property, however
they
came to be placed there.
19
(e) Landlord
consents to Tenant’s use of ordinary office products in customary quantities
within the Demised Premises, in accordance with Applicable Laws and the terms
and conditions of this Lease.
(f) “Hazardous
Substance(s)”
shall
mean any hazardous substance, pollutant, contaminant, waste, by-product or
constituent regulated under any of the Applicable Laws (as hereinafter defined);
oil and petroleum products, natural gas, natural gas liquids, liquified natural
gas, and synthetic gas usable for fuel; pesticides regulated under any of the
Applicable Laws; asbestos and asbestos containing materials, PCBs and other
substances regulated under any of the Applicable Laws; raw materials, building
components and the product of any manufacturing or other activities on the
Property; source material, special nuclear material, by-product material and
any
other radioactive materials or radioactive wastes, however produced, regulated
under the Atomic Energy Act or the Nuclear Waste Policy Act; chemicals subject
to the OSHA Hazard Communications Standard, 29 C.F.R. § 19.10.1200
et seq.;
industrial process and pollution control wastes, whether or not defined as
hazardous within the meaning of any Applicable Law; and any substance which
at
any time shall be listed as “hazardous” or “toxic” or regulated under any of the
Applicable Laws.
(g) “Applicable
Law(s)”
shall
include, but shall not be limited to, all federal, state, and local statutes,
ordinances, regulations and rules regulating the environmental quality, health,
safety, contamination and cleanup including, without limitation, the Clean
Air
Act, as amended, 42 U.S.C. § 7401 et seq.,
the
Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1251
et seq.;
the
Water Quality Act of 1987, as amended; the Federal Insecticide, Fungicide and
Rodenticide Act, as amended, 7 U.S.C. § 136 et seq.;
the
Marine Protection, Research and Sanctuaries Act, as amended, 33 U.S.C.
§ 1401 et seq.;
the
National Environmental Policy Act, as amended, 42 U.S.C. § 4321
et seq.;
the
Noise Control Act, as amended, 42 U.S.C. § 4901 et seq.;
the
Occupational Safety and Health Act, as amended, 29 U.S.C. § 651
et seq.;
the
Resource Conservation and Recovery Act, as amended, 42 U.S.C. § 609
et seq.;
the
Safe Drinking Water Act, as amended, 42 U.S.C. § 300(f) et seq.;
the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended, 42 U.S.C. § 9601 et seq.;
the
Toxic Substances Control Act, as amended, 15 U.S.C. § 2601 et seq.;
the
Atomic Energy Act, as amended, 42 U.S.C. § 2011 et seq.;
the
Nuclear Waste Policy Act of 1982, as amended, 42 U.S.C. § 10101
et seq.;
and
state superlien and environmental cleanup statutes, with implementing
regulations and guidelines. Applicable Laws shall also include all federal,
state, regional, county, municipal, agency, judicial and other local laws,
statutes, ordinances, regulations, rules and rulings, whether currently in
existence or hereinafter enacted or promulgated, that govern or relate to:
(i) the existence, cleanup and/or remedy of contamination of property;
(ii) the protection of the environment from spilled, deposited or otherwise
emplaced contamination; (iii) the control of Hazardous Substances; or
(iv) the use, generation, discharge, transportation, treatment, removal or
recovery of Hazardous Substances.
(h) Landlord
represents to Tenant that, to the best of Landlord’s knowledge, except as may be
disclosed to Tenant in writing prior to the execution of this Lease, there
are
no Hazardous Substances in, on or under the Demised Premises in violation of
any
Applicable Laws.
IX. DAMAGE
OR DESTRUCTION.
9.1 Tenant’s
Notice of Damage.
If any
portion of the Demised Premises shall be damaged or destroyed by fire or other
casualty, Tenant shall give prompt written notice thereof to Landlord
(“Tenant’s
Notice of Damage”).
20
9.2 Options
to Terminate if Damage Substantial.
Upon
receipt of Tenant’s Notice of Damage, Landlord shall promptly proceed to
determine the nature and extent of the damage or destruction and to estimate
the
time necessary to repair or restore the Demised Premises. As soon as reasonably
possible, but not later than 60 days after the date of such damage
Landlord
shall give written notice to Tenant stating Landlord’s estimate of the time
necessary to repair or restore the Demised Premises (“Landlord’s Notice of
Repair Time”). If Landlord reasonably estimates that repair or restoration of
the Demised Premises cannot be completed within one hundred fifty (150) business
days
from
the time of Tenant’s Notice of Damage, Landlord and Tenant shall each have the
option to terminate this Lease. If, however, the damage or destruction was
caused by the act or omission of Tenant or Tenant’s Agents, Landlord shall have
the option to terminate this Lease if Landlord reasonably estimates that the
repair or restoration cannot reasonably be completed within one hundred fifty
(150) business days from the time of Tenant’s Notice of Damage, but Tenant shall
not have the option to terminate this Lease.
Any
option granted hereunder shall be exercised by written notice to the other
party
given within ten (10) days after Landlord’s Notice of Repair Time. If either
Landlord or Tenant exercises its option to terminate this Lease, the Lease
Term
shall expire ten (10) days after the notice by either Landlord or Tenant
exercising such party’s option to terminate this Lease. Following termination of
this Lease under the provisions hereof, Landlord shall refund to Tenant such
amounts of Basic Rent and Additional Rent theretofore paid by Tenant as may
be
applicable to the period subsequent to the time of Tenant’s Notice of Damage
less the reasonable value of any use or occupation of the Demised Premises
by
Tenant subsequent to the time of Tenant’s Notice of Damage.
9.3 Option
to Terminate if Damage to Building.
If the
Building shall be damaged or destroyed by fire or other casualty (though the
Demised Premises may not be affected or if affected, can be repaired within
one
hundred fifty (150) business days
to
the extent of 33-1/3% or more of the replacement value of the Building, Landlord
may elect not to reconstruct or rebuild the Building. Upon written notice to
Tenant given within twenty (20) days after Landlord’s Notice of Repair Time,
this Lease shall terminate and Landlord shall refund to Tenant such amounts
of
Basic Rent and Additional Rent paid by Tenant for the period after such damage
less the reasonable value of any use or occupation of the Demised Premises
by
Tenant during such period.
9.4 Obligations
to Repair and Restore.
If
repair and restoration of the Demised Premises can be completed within the
period specified in Section
9.2,
in
Landlord’s reasonable estimation, or if neither Landlord nor Tenant terminate
this Lease as provided in Sections
9.2 or 9.3,
then
this Lease shall continue in full force and effect and Landlord shall proceed
forthwith to cause the Demised Premises (including any improvements constructed
by Landlord but excluding any alterations, improvements, Changes, fixtures
and
personal property constructed or owned by Tenant) to be repaired and restored
with reasonable diligence and there shall be abatement of Basic Rent and
Additional Rent proportionate to the extent of the space and period of time
that
Tenant is unable to use and enjoy the Demised Premises.
9.5 Application
of Insurance Proceeds.
The
proceeds of any Property Insurance maintained on the Demised Premises, other
than property insurance maintained by Tenant on fixtures and personal property
of Tenant, shall be paid to and become the property of Landlord, subject to
any
obligation of Landlord to cause the Demised Premises to be repaired and restored
and further subject to any rights under any Mortgage encumbering the Property
to
such proceeds. Landlord’s obligation to repair and restore the Demised Premises
provided in this Section 9 is limited to the repair and restoration that can
be
accomplished with the proceeds of any Property Insurance maintained on the
Demised Premises. The amount of any such insurance proceeds is subject to any
right of any Mortgagee to apply such proceeds to its secured debt under its
Mortgage.
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X. CONDEMNATION.
10.1 Taking
- Substantial Taking - Insubstantial Taking.
A
“Taking”
shall
mean the taking of all or any portion of the Demised Premises or the Building
as
a result of the exercise of the power of eminent domain or condemnation for
public or quasi-public use or the sale of all or part of the Demised Premises
or
the Building under the threat of condemnation. A “Substantial
Taking”
shall
mean a Taking of ten 10% or
more
of the Floor Area of either the Demised Premises or the Building, or parking
area.
An
“Insubstantial Taking” shall mean a Taking which does not constitute a
Substantial Taking.
10.2 Termination
on Substantial Taking.
If
there is a Substantial Taking with respect to the Demised Premises or the
Building, the Lease Term shall expire on the date of vesting of title pursuant
to such Taking. In the event of termination of this Lease under the provisions
hereof, Landlord shall refund to Tenant such amounts of Basic Rent and
Additional Rent theretofore paid by Tenant as may be applicable to the period
subsequent to the time of termination of this Lease.
10.3 Restoration
on Insubstantial Taking.
In the
event of an Insubstantial Taking with respect to the Demised Premises or the
Building, this Lease shall continue in full force and effect, Landlord shall
proceed forthwith to cause the Demised Premises (but excluding any alterations,
improvements, Changes, fixtures and personal property constructed or owned
by
Tenant), less such Taking, to be restored as near as may be to the original
condition thereof and there shall be abatement of Basic Rent and Additional
Rent
proportionate to the extent of the space so taken.
10.4 Right
to Award.
The
total award, compensation, damages or consideration received or receivable
as a
result of a Taking (“Award”)
shall
be paid to and be the property of Landlord, including, without limitation,
any
part of the Award made as compensation for diminution of the value of this
leasehold or the fee of the Demised Premises. Tenant hereby assigns to Landlord,
all of Tenant’s right, title and interest in and to any such Award. Tenant
covenants and agrees to execute, immediately upon demand by Landlord, such
documents as may be necessary to facilitate collection by Landlord of any such
Award. Notwithstanding Landlord’s right to the entire Award, Tenant shall be
entitled to a separate award, if any, for the loss of Tenant’s personal
property, the loss of Tenant’s business and profits, and Tenant’s moving
expenses.
XI. DEFAULTS
BY TENANT.
11.1 Defaults
Generally.
In the
event that any of the following events shall occur, Tenant shall be deemed
to be
in default of Tenant’s obligations under this Lease (each of the following shall
be referred to as a “Default by Tenant”).
11.2 Failure
to Pay Rent or Other Amounts.
A
Default by Tenant shall exist if Tenant fails to pay Basic Rent, Additional
Rent, Monthly Deposits, or any other amounts payable by Tenant within five
(5)
days after written notice from Landlord that such
rental or other amount is due under the terms of this Lease.
11.3 Violation
of Lease Terms.
A
Default by Tenant shall exist if Tenant breaches or fails to comply with any
non-monetary agreement, term, covenant or condition in this Lease applicable
to
Tenant, and Tenant does not cure such breach or failure within twenty (20)
days
after notice thereof by Landlord to Tenant, or, if such breach or failure to
comply cannot be reasonably cured within such 20-day period, if Tenant shall
not
in good faith commence to cure such breach or failure to comply within such
20-day period or shall not diligently proceed therewith to completion within
sixty (60) days following such notice.
22
11.4 Non-occupancy
of Demised Premises.
A
Default by Tenant shall exist if Tenant shall abandon the Demised Premises
and
fail to pay rent.
11.5 Transfer
of Interest Without Consent.
A
Default by Tenant shall exist if all or any portion of Tenant’s interest under
this Lease or in the Demised Premises shall be transferred to or pass to or
devolve upon any other party without Landlord’s prior written consent, if
required under this lease.
11.6 Execution
and Attachment against Tenant.
A
Default by Tenant shall exist if Tenant’s interest under this Lease or in the
Demised Premises shall be taken upon execution or by other process of law
directed against Tenant, or shall be subject to any attachment at the instance
of any creditor or claimant against Tenant and said attachment shall not be
discharged or disposed of within thirty calendar
(30)
days
after the levy thereof.
11.7 Bankruptcy
or Related Proceedings.
A
Default by Tenant shall exist (a) if Tenant shall file a petition in bankruptcy
or insolvency or for reorganization or arrangement under the bankruptcy laws
of
the United States or under any similar act of any state, or shall voluntarily
take advantage of any such law or act by answer or otherwise, admit in writing
its inability to pay its debts as they become due, or if Tenant is generally
unable to pay its debts as they become due, or be dissolved or shall make an
assignment for the benefit of creditors or (b) if involuntary proceedings under
any such bankruptcy or insolvency law or for the dissolution of Tenant shall
be
instituted against Tenant or a receiver or trustee shall be appointed for the
Demised Premises or for all or substantially all of the property of Tenant,
and
such involuntary proceedings shall not be dismissed or such receivership or
trusteeship vacated within thirty (30) days after such institution or
appointment. Notwithstanding any other provisions contained in this Lease,
in
the event Tenant or its successors or assigns shall become insolvent or
bankrupt, or if their interest under this Lease shall be levied upon or sold
under execution or other legal process by any depository institution supervisory
authority (“Authority”), Landlord may, in either such event, terminate this
Lease only with the concurrence of any receiver or liquidator appointed by
such
authority, provided that in the event this Lease is terminated by the receiver
or liquidator, the maximum claim of Landlord for rent, damages or indemnity
for
injury resulting from the termination, rejection or abandonment of the unexpired
Lease shall be by law no greater than an amount equal to all accrued and unpaid
rent to the date of termination; and further provided that to continue the
Lease, any receiver or liquidator appointed by such Authority or its assignee
must continue to honor the terms of this Lease.
XII. LANDLORD’S
REMEDIES.
12.1 Remedies
Generally.
Upon
the occurrence of any Default by Tenant, Landlord shall have the right, at
Landlord’s election, then or any time thereafter, to exercise any one or more of
the following remedies.
12.2 Cure
by Landlord.
In the
event of a Default by Tenant, Landlord may, at Landlord’s option, but without
obligation to do so, and without releasing Tenant from any obligations under
this Lease, make any payment or take any action as Landlord may deem necessary
or desirable to cure any such Default by Tenant in such manner and to such
extent as Landlord may deem necessary or desirable. Landlord may do so without
demand on, or written notice to, Tenant and without giving Tenant an opportunity
to cure such Default by Tenant. Tenant covenants and agrees to pay to Landlord,
within ten (10) days after demand, all advances, costs and expenses of Landlord
in connection with the making of any such payment or the taking of any such
action including, without limitation, (a) a charge in the amount of fifteen
percent (15%) of such advances, costs and expenses payable to Landlord to
compensate for the administrative overhead attributable to such action,
(b) reasonable attorneys’ fees, and (c) interest as hereinafter
provided from the date of payment of any such advances, costs and expenses
by
Landlord. Action taken by Landlord may include commencing, appearing in,
defending or otherwise participating in any action or proceeding and paying,
purchasing, contesting or compromising any claim, right, encumbrance, charge
or
lien, with respect to the Demised Premises which Landlord, in its discretion,
may deem necessary or desirable to protect its interest in the Demised Premises
and under this Lease. In the event that the Lease Term has expired or Tenant
is
no longer occupying the Demised Premises, Landlord shall be entitled to take
such actions as provided under this Section
12.2
without
Landlord being required to provide the notice to Tenant under Section
11.3.
23
12.3 Termination
of Lease and Damages.
In the
event of a Default by Tenant, Landlord may terminate this Lease, effective
at
such time as may be specified by written notice to Tenant, and demand (and,
if
such demand is refused, recover) possession of the Demised Premises from Tenant.
Tenant shall remain liable to Landlord for damages in an amount equal to (a)
the
Basic Rent that was not paid to Landlord during any free rent period under
the
Lease and (b) the Basic Rent, Additional Rent and other sums which would have
been owing by Tenant hereunder for the balance of the Lease Term, had this
Lease
not been terminated, less the net proceeds, if any, of any reletting of the
Demised Premises by Landlord subsequent to such termination, after deducting
all
Landlord’s expenses in connection with such recovery of possession or reletting.
Landlord shall be entitled to collect and receive such damages from Tenant
on
the days on which the Basic Rent, Additional Rent and other amounts would have
been payable if this Lease had not been terminated. Alternatively, at the option
of Landlord, Landlord shall be entitled to recover forthwith from Tenant, as
damages for loss of the bargain and not as a penalty, an aggregate sum which,
at
the time of such termination of this Lease, represents the excess, if any,
of
(a) (i) the Basic Rent that was not paid to Landlord during any free rent
period under the Lease plus (ii) the aggregate of the Basic Rent, Additional
Rent and all other sums payable by Tenant hereunder that would have accrued
for
the balance of the Lease Term, over (b) the aggregate rental value of the
Demised Premises for the balance of the Lease Term, both discounted to present
worth at the rate of eight percent (8%) per annum.
12.4 Repossession
and Reletting.
In the
event of a Default by Tenant, Landlord may reenter and take possession of the
Demised Premises or any part thereof, without demand or notice, and repossess
the same and expel Tenant and any party claiming by, under or through Tenant,
and remove the effects of both using such force for such purposes as may be
necessary, without being liable for prosecution on account thereof or being
deemed guilty of any manner of trespass, and without prejudice to any remedies
for arrears of rent or right to bring any proceeding for breach of covenants
or
conditions. No such reentry or taking possession of the Demised Premises by
Landlord shall be construed as an election by Landlord to terminate this Lease
unless a written notice of such intention is given to Tenant. No notice from
Landlord hereunder or under a forcible entry and detainer statute or similar
law
shall constitute an election by Landlord to terminate this Lease unless such
notice specifically so states. Landlord reserves the right, following any
reentry or reletting, to exercise its right to terminate this Lease by giving
Tenant such written notice, in which event this Lease shall terminate as
specified in said notice. After recovering possession of the Demised Premises,
Landlord may, from time to time, but shall not be obligated to, relet the
Demised Premises, or any part thereof, for the account of Tenant, for such
term
or terms and on such conditions and upon such other terms as Landlord, in its
sole and subjective discretion, may determine. Landlord may make such repairs,
alterations or improvements as Landlord may consider appropriate to accomplish
such reletting, and Tenant shall reimburse Landlord upon demand for all costs
and expenses, including attorneys’ fees, which Landlord may incur in connection
with such reletting. Landlord may collect and receive the rents for such
reletting but Landlord shall in no way be responsible for or liable for any
failure to relet the Demised Premises, or any part thereof, or for any failure
to collect any rent due upon such reletting. Notwithstanding Landlord’s recovery
of possession of the Demised Premises, Tenant shall continue to pay on the
dates
herein specified, the Basic Rent, Additional Rent and other amounts which would
be payable hereunder if such repossession had not occurred. Upon the expiration
or earlier termination of this Lease, Landlord shall refund to Tenant any
amount, without interest, by which the amounts paid by Tenant, when added to
the
net amount, if any, recovered by Landlord through any reletting of the Demised
Premises, exceeds the amounts payable by Tenant under this Lease. If, in
connection with any reletting, the new lease term extends beyond the existing
Lease Term, or the premises covered thereby include other premises not part
of
the Demised Premises, a fair apportionment of the rent received from such
reletting and the expenses incurred in connection therewith shall be made in
determining the net amount recovered from such reletting.
24
12.5 Landlord’s
Lien and Enforcement.
Tenant
hereby grants to Landlord herby waives and releases
a
security interest in all personal property of Tenant now or hereafter located
on
the Demised Premises.
12.6 Suits
by Landlord.
Actions
or suits for the recovery of amounts and damages payable under this Lease may
be
brought by Landlord from time to time, at Landlord’s election, and Landlord
shall not be required to await the date upon which the Lease Term would have
expired to bring any such action or suit.
12.7 Recovery
of Landlord Enforcement Costs.
All
costs and expenses incurred by Landlord in connection with collecting any
amounts and damages owing by Tenant pursuant to the provisions of this Lease
or
to enforce any provision of this Lease, including without limitation reasonable
attorneys’ fees, whether or not any action is commenced by Landlord, shall be
paid by Tenant to Landlord upon demand. The prevailing party shall be entitled
to an award of such attorney’s fees and costs in any action arising out of this
Lease.
12.8 Administrative
Late Charge.
Notwithstanding any other remedies for nonpayment of rent, if the monthly
payment of Basic Rent and Additional Rent are not received by Landlord on or
before the fifth (5th)
day
after written notice of non-payment of the month for which such rental is due,
or
if any
other payment due Landlord by Tenant is not received by Landlord on or before
the tenth (10) day of the month next following the month in which Tenant was
invoiced, an administrative late charge of five percent (5%) of such past due
amount shall become due and payable, as Additional Rent, in addition to such
amounts owed under this Lease to help defray the additional cost to Landlord
for
processing such late payments.
12.9 Interest
on Past-Due Payments and Advances.
Tenant
covenants and agrees to pay Landlord, as Additional Rent, interest on demand
at
the rate equal to the lesser of (a) of eighteen percent (18%) per
annum, compounded on a monthly basis or (b) the highest rate permitted by
applicable law, on the amount of any Basic Rent, Additional Rent or other
charges not paid when due, from the date due and payable, and on the amount
of
any payment made by Landlord required to have been made by Tenant under this
Lease and on the amount of any costs and expenses, including reasonable
attorneys’ fees, paid by Landlord in connection with the taking of any action to
cure any Default by Tenant, from the date of making any such payment or the
advancement of such costs and expenses by Landlord.
12.10 Additional
Damages.
In the
event of a Default by Tenant, Landlord shall be entitled to recover as damages,
in addition to all other damages and remedies provided hereunder, an amount
equal to the total of (i) the cost of recovering possession of the Demised
Premises, (ii) the unpaid Basic Rent, Additional Rent and any other amounts
current at the time of such Default by Tenant, neither Landlord no Tenant shall
be liable to the other for consequential or special damages.
12.11 Landlord’s
Bankruptcy Remedies.
Nothing
contained in this Lease shall limit or prejudice the right of Landlord to prove
and obtain as liquidated damages in any bankruptcy, insolvency, receivership,
reorganization or dissolution proceeding, an amount equal to the maximum
allowable by any statute or rule of law governing such proceeding in effect
at
the time when such damages are to be proved, whether or not such amount be
greater, equal or less than the amounts recoverable, either as damages or rent,
under this Lease.
25
12.12 Remedies
Cumulative.
Exercise of any of the remedies of Landlord under this Lease shall not prevent
the concurrent or subsequent exercise of any other remedy provided for in this
Lease or otherwise available to Landlord at law or in equity. The remedies
provided for in the Lease are in addition to any other remedies available to
Landlord at law or in equity by statute or otherwise.
XIII. SURRENDER
AND HOLDING OVER.
13.1 Surrender
upon Lease Expiration.
Upon
the expiration or earlier termination of this Lease, or on the date specified
in
any demand for possession by Landlord after any Default by Tenant, Tenant
covenants and agrees to surrender possession of the Demised Premises to Landlord
broom clean, with all lighting, doors (including, without limitation,
electrical
and mechanical systems in good working order and condition, all walls in clean
condition and holes or punctures in the walls repaired, and otherwise in the
same condition as when Tenant first occupied the Demised Premises, ordinary
wear
and tear excepted.
Tenant, at Landlord’s option, shall transfer the telephone services to Landlord
instead of terminating such service account, provided that Landlord bears any
costs of such transfer. If, within the last ninety (90) days of the Lease Term,
Tenant has vacated the Demised Premises, Landlord shall have the right to
decorate, remodel, repair, or otherwise prepare the Demised Premises for
reletting and re-occupancy.
13.2 Holding
Over.
If
Tenant shall hold over after the expiration of the Lease Term, without written
agreement providing otherwise, Tenant shall be deemed to be a trespasser upon
the Demised Premises. If Landlord consents in writing to such holdover, then
Tenant shall be deemed to be a tenant from month to month, at a monthly rental,
payable in advance, equal to one hundred fifty percent (150%) of
the
Basic Rent and Additional Rent,
and
Tenant shall be bound by all of the other terms, covenants and agreements of
this Lease. Nothing contained herein shall be construed to give Tenant the
right
to hold over at any time, and Landlord may exercise any and all remedies at
law
or in equity to recover possession of the Demised Premises, as well as any
damages incurred by Landlord, due to Tenant’s failure to vacate the Demised
Premises and deliver possession to Landlord as herein provided.
XIV. MISCELLANEOUS.
14.1 No
Implied Waiver.
No
failure by Landlord to insist upon the strict performance of any term, covenant
or agreement contained in this Lease, no failure by Landlord to exercise any
right or remedy under this Lease, and no acceptance of full or partial payment
during the continuance of any Default by Tenant, shall constitute a waiver
of
any such term, covenant or agreement, or a waiver of any such right or remedy,
or a waiver of any such Default by Tenant.
14.2 Survival
of Provisions.
The
covenants, agreements and obligations of the parties hereto shall continue
in
force and effect and survive any expiration of the Lease Term or termination
of
this Lease.
14.3 Covenants
Independent.
This
Lease shall be construed as if the covenants herein between Landlord and Tenant
are independent, and not dependent, and Tenant shall not be entitled to any
offset against Landlord if Landlord fails to perform its obligations under
this
Lease.
14.4 Covenants
as Conditions.
Each
provision of this Lease performable by Tenant shall be deemed both a covenant
and a condition.
26
14.5 Tenant’s
Remedies.
Tenant
may bring a separate action against Landlord for any claim Tenant may have
against Landlord under this Lease, provided Tenant shall first give written
notice thereof to Landlord and shall afford Landlord a reasonable opportunity
to
cure any such default. In addition, Tenant shall send notice of such default
by
certified or registered mail, postage prepaid, to any Mortgagee of whose address
Tenant has been notified in writing, and shall afford such holder a reasonable
opportunity to cure any default on Landlord’s behalf but in no event less than
thirty (30) days following such notice. In no event shall Landlord be
responsible for any consequential damages incurred by Tenant including, but
not
limited to, loss of profits or interruption of business as a result of any
default by Landlord hereunder.
14.6 Binding
Effect.
This
Lease shall extend to and be binding upon the heirs, executors, legal
representatives, successors and assigns of the respective parties hereto. The
terms, covenants, agreements and conditions in this Lease shall be construed
as
covenants running with the Land.
14.7 No
Recording.
Neither
this Lease nor any memorandum or other memorialization of this Lease shall
be
recorded in the records of any County Clerk and Recorder of the State of
Colorado or any other public records without Landlord’s prior
consent.
14.8 Notices
and Demands.
All
▇▇▇▇▇▇▇▇ under this Lease shall be provided by Landlord to Tenant at the address
for ▇▇▇▇▇▇▇▇ set forth in the Summary by regular mail or personal delivery.
All
other notices and demands under this Lease shall be in writing, signed by the
party giving the same and shall be deemed properly given and received when
personally delivered or three (3) business days after mailing through the United
States mail, postage prepaid, certified or registered, return receipt requested,
addressed to the party to receive the notice at the address set forth for such
party in the Summary or at such other address as either party may notify the
other of in writing.
14.9 Time
of the Essence.
Time is
of the essence under this Lease, and all provisions herein relating thereto
shall be strictly construed.
14.10 Captions
for Convenience.
The
headings and captions hereof are for convenience only and shall not be
considered in interpreting the provisions hereof.
14.11 Severability.
If any
provision of this Lease shall be held invalid or unenforceable, the remainder
of
this Lease shall not be affected thereby, and there shall be deemed substituted
for the affected provision a valid and enforceable provision as similar as
possible to the affected provision.
14.12 Governing
Law.
This
Lease shall be interpreted and enforced according to the laws of the State
of
Colorado, without regard to conflicts of laws principles.
14.13 Entire
Agreement.
This
Lease, the Summary, Attachments, Exhibits and Addenda referred to herein,
constitute the final and complete expression of the parties’ agreements with
respect to the Demised Premises and Tenant’s occupancy thereof. Each party
agrees that it has not relied upon or regarded as binding any prior agreements,
negotiations, representations, or understandings, whether oral or written,
except as expressly set forth herein.
14.14 No
Oral Amendment or Modifications.
No
amendment or modification of this Lease, and no approvals, consents or waivers
by Landlord under this Lease, shall be valid or binding unless in writing and
executed by the party to be bound.
14.15 Format.
This
Lease has been prepared to reflect all additions and deletions negotiated
between Landlord and Tenant from the initial form of this Lease submitted by
Landlord to Tenant. All provisions and terms that are stricken are deletions
and
shall not be a part of this Lease; provided, however, a deletion from this
Lease
shall not be construed to create the opposite intent of the deleted provision.
All provisions and terms which are underlined (other than headings, titles
and
captions) are additions and shall be part of this Lease. Tenant acknowledges
that it has had the opportunity to thoroughly review and negotiate this Lease
and that the rule of construction to the effect that any ambiguities are to
be
resolved against the drafting party shall not be employed in the interpretation
of this Lease.
27
14.16 Real
Estate Brokers.
Tenant
covenants to pay, hold harmless and indemnify the Landlord from and against
any
and all cost, expense or liability for any compensation, commissions, charges
or
claims by any broker or other agent with respect to this Lease or the
negotiation thereof, whether or not meritorious, other than the broker(s) listed
as the Broker(s) on the Summary. Tenant acknowledges Landlord is not liable
for
any representations by Tenant’s Broker (as set forth in Section
13 of
the
Summary) or by Landlord’s Broker except as required in Section
14.17(c),
regarding the Demised Premises, the Building, the Project, or this
Lease.
14.17 Intentionally
Omitted.
14.18 Intentionally
Omitted.
14.19 Parking.
Except
as set forth in summary
Tenant
shall be entitled to the non-exclusive use of the Parking Area up to the maximum
number of unassigned spaces set forth in the Summary, on a first come-first
serve basis. Landlord shall be entitled to establish reasonable rules and
regulations governing the use of the Parking Area including, without limitation,
the right to issue parking permits and decals to be affixed to motor vehicles
(with the reasonable costs thereof being a part of the Common Facilities
Charges). Landlord may designate a specific area for Tenant’s parking spaces
within the Parking Area and may modify, relocate, reduce or restrict any of
the
parking spaces in the Parking Area, so long as Tenant’s number of parking spaces
is not reduced.
Landlord shall be entitled to permit the use of the Parking Area for other
purposes, including uses not related to the operation of the Building. Landlord
shall not be liable for and Tenant hereby releases and covenants not to bring
any action against Landlord for any loss, damage or theft to or from any motor
vehicle or other property of Tenant or Tenant’s Agents which occurs in or about
the Parking Area. If any visitor parking is provided by Landlord in the Parking
Area, the use thereof shall be limited to visitors of Tenant and other tenants
of the Building, except as otherwise permitted by Landlord. Notwithstanding
the
foregoing, Tenant’s right to use such parking spaces shall be a license only and
Landlord’s inability to make such spaces available at any time for reasons
beyond Landlord’s control shall not constitute a default by Landlord under this
Lease.
14.20 Relationship
of Landlord and Tenant.
Nothing
contained herein shall be deemed or construed as creating the relationship
of
principal and agent or of partnership, or of joint venture by the parties
hereto, it being understood and agreed that no provision contained in this
Lease
nor any acts of the parties hereto shall be deemed to create any relationship
other than the relationship of Landlord and Tenant.
14.21 Authority
of Tenant.
Both
Landlord and Tenant executing this Lease on behalf of Tenant and Landlord
represent and warrant that
he
or she is duly authorized to deliver this Lease on behalf of Tenant and Landlord
and that this Lease is binding upon Tenant and Landlord in accordance with
its
terms.
28
29
30
EXHIBIT
“A”
Legal
Descriptions of Land and Project
Land:
THE NORTH 200 FEET OF THE SOUTH 250 FEET OF THE WEST 135 FEET OF THE EAST 160
FEET OF THE EAST ONE-HALF OF THE SOUTHWEST ONE-QUARTER OF THE SOUTHWEST
ONE-QUARTER OF THE SOUTHEAST ONE-QUARTER OF SECTION 12, TOWNSHIP 4 SOUTH, RANGE
▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ OF JEFFERSON. STATE OF COLORADO
AND
CONTAINS AN AREA OF 27,001.05 SQUARE FEET OF 0.62 ACRE. MORE OR
LESS
A-1
EXHIBIT
“B”
Location
of Demised Premises Within Building
B-1
EXHIBIT
“C”
Rules
& Regulations
The
following rules and regulations shall be in effect at the Building. Landlord
reserves the right to adopt reasonable nondiscriminatory modifications and
additions to the regulations at any time by written notice to Tenant. In the
case of any conflict between these rules and regulations and the Lease, the
Lease shall be controlling.
1. The
sidewalks, entrances shall not be obstructed or used for any purpose other
than
ingress and egress.
2. No
awning
or other projection shall be displayed or attached to the outside walls of
the
Building without the prior written consent of Landlord. The standard blinds
provided by Landlord shall not be removed from the windows and no other
curtains, shades or screens, shall be installed without the prior consent of
Landlord.
3. SIGNAGE:
See Exhibit & Standards. Tenant may place at Tenant’s expense one sign above
the entry per Exhibit subject to Landlord’s prior written approval (which shall
not be unreasonably withheld) and shall be subject to any applicable
governmental laws, ordinances and regulations and in compliance with Landlord’s
signage program. Tenant shall remove all such signs and graphics prior to the
termination of this Lease. Such installations and removals shall be made in
such
manner as to avoid injury or defacement of the Demised Premises; and Tenant
shall repair any injury or defacement, including without limitation,
discoloration caused by such installation or removal.
4. The
toilets, wash bowls and other plumbing fixtures shall not be used for any
purpose other than those for which they were constructed, and no sweepings,
rubbish rags or other substances shall be thrown therein. All damages resulting
from any misuse of the fixtures shall be borne by tenant who, or whose servants,
employees, agents, visitors or licensees shall have caused the
same.
5. No
bicycles, vehicles or animals of any kind shall be brought into or kept in
or
about the Demised Premises, and no cooking shall be done or permitted by any
tenant on the Demised Premises, except use of microwave and the
preparation of coffee, tea, hot chocolate and similar items for tenants and
their employees shall be permitted. No tenant shall cause or permit any unusual
or objectionable odors to be produced upon or permeate the Demised
Premises.
6. The
Demised Premises shall not be used for the manufacturing or for the storage
of
merchandise except as such storage may be incidental to the use of the Demised
Premises for general purposes. No tenant shall occupy or permit any portion
of
his Demised Premises to be occupied for the manufacture or sale of alcohol,
liquor, narcotics (other than prescription medicines sold under license) or
tobacco in any form. The Demised Premises shall not be used for lodging or
sleeping or for any immoral or illegal purposes.
7. Tenant
shall not do or permit anything to be done in the Demised Premises, or bring
or
keep anything in the Demised Premises, which shall in any way increase the
rate
of fire insurance on the Building, or on the property kept in the Building,
or
obstruct or interfere with the rights of other tenants, or conflict with the
regulations of the Fire Department or the fire laws, or with any insurance
policy upon the Building, or any portion of the Building or its contents, or
with any rules and ordinances established by the board of health or other
applicable governmental authority.
C-1
8. No
tenant
shall use, keep or permit to be used or kept any foul or noxious gas or
substances in the Demised Premises or the Building or permit or suffer the
Demised Premises to be occupied or used in a manner offensive or objectionable
to Landlord or other tenants of the Building of neighboring buildings by reason
of noise odors and/or vibrations, including, without limitation, by the use
of
any musical instrument, radio, phonograph, sound-producing instrument or device
that can be heard outside the Demised Premises.
9. No
tenants shall place any radio or television antenna on the roof or on any part
of the inside or outside of the Building without written permission of Landlord.
No tenant shall operate any electrical device from which may emanate electrical
waves, which may interfere with or impair radio or television broadcasting
or
reception from or in the Building or any part of the Project.
10. Landlord
reserves the right to exclude or expel from the Building or any part of the
Project any person who in the reasonable judgment of Landlord is intoxicated,
is
under the influence of alcohol or drugs, who presents a danger to other persons
or property or who shall in any manner do any act in violation of these Rules
and Regulations.
11. No
tenant
nor any of tenant’s servants, employees, agents, visitors or licensees, shall
any time keep or permit to be kept upon the Demised Premises any inflammable,
combustible or explosive fluid, chemical or substance without the prior approval
of Landlord.
12. No
additional locks or bolts of any kind shall be placed upon any of the doors
by
any tenant, nor shall any changes be made in existing locks or the mechanism
thereof, except tenant shall at his option have the existing exterior locks
re-keyed at their expense by Landlords locksmith.
13. The
Demised Premises shall only be used as specifically permitted under the terms
of
the Lease.
14. Tenant
shall maintain liability insurance in the amounts specified in the Lease and
name Landlord as an additional insured and provide Landlord with a certificate
of insurance.
15. Tenant
and their employees and guests shall observe all signs and posted speed limits
and park within painted or assigned parking stalls only.
16. Car
repairs, waxing, washing or cleaning of vehicles within the Demised Premises
and/or in any common areas or parking areas is strictly prohibited.
17. Tenant
shall maintain at their expense any leased warehouse area at a temperature
complying with local codes and requirements to protect fire sprinkler system
from freezing during winter months; the code requirement is min. of 40
degrees.
18. The
expense of repairing any damage resulting from a violation of any Rule or
Regulation herein shall be borne by the tenant by whom, or by whose contractors,
employees or invitees, the damage shall have been caused.
C-2
EXHIBIT
“D”
Signage
Specifications
D-1
EXHIBIT
“E”
Space
Plan
▇-▇
▇-▇
▇-▇
▇-▇
▇-▇
▇-▇
EXHIBIT
“F”
Work
Letter
THIS
WORK LETTER
is
attached as Exhibit
F
to the
Lease of Space Single Story Office dated as of June 19, 2006 between
Clairbridge Companies, LLC a Colorado limited liability Company (“CLAIRBRIDGE
LLC”),
as
(“Landlord”)
and
Solera National Bancorp a Delaware corporation (“Tenant”).
SOLERA
NATIONAL BANCORP,Inc.,
a
Delaware corporation (“Tenant”),
as
tenant, and constitutes the further agreement between Landlord and Tenant as
follows:
Concurrently
herewith, Tenant and Landlord have executed a Lease covering the Demised
Premises (the provisions of said Lease are herein incorporated by reference
as
if fully set forth herein). All capitalized terms not otherwise defined herein
shall have the meanings set forth in the Lease. In consideration of the
execution of said Lease, Tenant and Landlord mutually agree as
follows:
1. Landlord
Work.
Landlord agrees to act as construction manager for construction of certain
tenant improvements and Landlord agrees to deliver the Demised Premises and
provide a 1 year warranty on all Landlord work
to the
Tenant and construct the tenant improvements at its sole cost ("Landlord
Work")
in a
good and workmanlike manner, using building standard materials, and in
reasonable accordance with the ( “Space
Plan”)
prepared by ▇▇▇▇▇▇
Designs,
dated_______________ and the plans and specifications” approved by Landlord and
Tenant dated ___________, 2006, the ("Approved
Plans and Specifications")
and
attached hereto as Schedule
“1”.
Landlord is a licensed General Contractor and will be performing the work as
defined herein. Landlord shall select the subcontractors to complete the
Landlord Work per the Approved Plans and Specifications, and reserves the right
to perform certain aspects (Electrical and Mechanical work) of this project
under a “Design Build” format. Except as set forth herein, Landlord shall have
no further obligations thereafter with respect to repair or replacement of
items
in the Demised Premises. Upon Substantial Completion of the Landlord Work and
the Punch List Items (as such terms are defined below), Landlord shall have
no
further obligation with regard to tenant improvements within the Demised
Premises. Notwithstanding anything contained herein to the contrary, all (i)
Tenant moving expenses and (ii) costs for installation of Tenant’s equipment and
furnishings shall be the sole responsibility of Tenant. Landlord shall cause
Substantial Completion of the Landlord Work to occur prior to September 1,
2006
other than Punch List items which shall be corrected within sixty (60) days
thereafter. Notwithstanding the foregoing, Section 3.3
of the
Lease sets forth Tenant’s sole remedy with respect to any failure by Landlord to
cause Substantial Completion of the Landlord Work by September 1, 2006.
2. Substantial
Completion.
“Substantial
Completion”
of
construction of the Landlord’s Work shall be defined as the date upon which the
space planner or other consultant engaged by Landlord determines that the
Landlord’s Work has been substantially completed in accordance with the Approved
Plans and Specifications, except for such items that constitute minor defects
or
adjustments which can be completed after occupancy without causing any material
interference with Tenant’s use of the Demised Premises (so called “Punch
List”
items).
After the completion of the Landlord’s Work, Tenant shall, upon demand, execute
and deliver to Landlord the Commencement Letter accepting the improvements
performed on the Demised Premises. The failure of Tenant to take possession
of
or to occupy the Demised Premises as per the terms of the Lease shall not serve
to relieve Tenant of any obligations arising on the Commencement Date or delay
the payment of Basic Rent, Additional Rent or any other obligations by
Tenant.
F-1
3. Changes
to Approved Plans and Specifications.
Any
changes, modifications, alterations or revisions to the Approved Plans and
Specifications (each, a “Change”)
shall
be made only with Landlord’s prior written approval and shall be at Tenant’s
sole cost and expense subject to the terms and condition of Article 16 of the
Addendum to lease
(including, without limitation, any additional space planning services and
architectural / engineering drawings that may be required in connection with
such modifications). If Tenant shall request any Change in any of the Approved
Plans and Specifications after approval by Landlord, Landlord shall, if
required, have such revisions to the drawings prepared, and Tenant shall
reimburse Landlord for the net
cost of
such revisions upon demand. Promptly upon completion of any required revisions,
Landlord shall notify Tenant in
writing
of the increased cost, if any, which will be chargeable to Tenant by reason
of
such Change. Tenant shall, within one (1) business day, notify Landlord in
writing whether it desires to proceed with such Change. In the absence of such
written authorization, Landlord shall have the option to continue work on the
Demised Premises disregarding the requested Change, or Landlord may elect to
discontinue work on the Demised Premises until it receives notice of Tenant's
decision, and any such discontinuation of work shall constitute a Tenant Delay.
4. Costs
of Approved Plans and Specifications.
Landlord is responsible for the fees and expenses of producing the Approved
Plans and Specifications and any associated construction and engineering
drawings.
5. Certificate
of Occupancy.
Upon
Substantial Completion of the Landlord Work, Landlord shall obtain at Landlord’s
expense a certificate of occupancy for the Demised Premises.
6. Omitted.
7. Tenant
Delay.
Tenant’s obligation to commence paying Basic Rent will not be delayed or
extended by any “Tenant
Delay”
which
includes, without limitation, delay: (i) caused by or resulting from any Change
to the Approved Plans and Specifications requested by Tenant or Tenant’s Agents;
(ii) in delivering, installation or completion of any items specified by Tenant
to the extent that such items require ordering or work deadlines inconsistent
with the scheduled Commencement Date; (iii) associated with any work at the
Demised Premises performed by Tenant or ay of Tenant’s Agents, or (iv) of any
other kind or nature caused by Tenant or any of Tenant’s Agents.
8. Tenant
Representative.
Tenant
has designated ▇▇▇▇ ▇▇▇▇▇▇
as its
representative with respect to the matters set forth in this Work Letter, who
shall have full authority and responsibility to act on behalf of Tenant as
required in this Work Letter.
9. Landlord
Representative.
Landlord has ▇▇▇▇▇▇ ▇▇▇▇▇▇ as its sole representative with respect to Landlord’s
responsibilities under this Work Letter who shall have full authority and
responsibility to act on behalf of the Landlord as required in this Work
Letter.
10. Notices.
Any and
all notices required to be given hereunder shall be in writing in accordance
with the terms and provisions of the Lease; provided, however, in all cases
notices shall also be given to those individuals specified in Sections
8 and 9
above.
F-2
IN
WITNESS WHEREOF, the parties have caused this Work Letter concurrently with
the
execution of the Lease.
TENANT:
SOLERA
NATIONAL BANCORP, Inc., a Delaware
corporation
By:
/s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Title:
V.P., Secretary &
Treasurer
LANDLORD:
CLAIRBRIDGE
COMPANIES, LLC a Colorado limited liability Company
By:
/s/ ▇▇▇▇▇▇
▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
President
F-3
SCHEDULE
“1”
Description
of Landlord Work - Architectural Space Plan
Refer
to Exhibit E of Lease
F-4
SCHEDULE
“2”
Approved
Plans and Specifications, including engineered drawings
Forthcoming
F-5
EXHIBIT
“G”
Addendum
to Lease
THIS
ADDENDUM ATTACHED TO AND MADE A PART OF THIS OFFICE LEASE DATED 19th day of
June, 2006, BY AND BETWEEN Clairbridge Companies, LLC a Colorado limited
liability Company (“CLAIRBRIDGE LLC”), as the “Landlord” and Solera National
Bancorp, Inc.,
a
Delaware corporation (“Tenant”),CONCERNING THE PREMISES KNOWN AS ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ “▇,” ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ in the Clairbridge Office building. In the
event that any conflict between the terms and provisions of the Lease and the
terms and conditions of this Addendum the terms and provisions of this Addendum
shall control.
15.
Options to Renew: As long as the Lease is in full force and effect and Tenant
either at the time of the exercise of the Option or at the following described
Option period(s): (i) is occupying and doing business from the Premises at
the
time the election is exercised; and (ii) is not in default under the Lease
at
the time of the election; and (iii) has maintained a history of payments within
the applicable grace period, if any,
provided under the Lease;
Tenant
is
hereby granted the option to renew this Lease for 2 successive renewal terms(s),
commencing upon the day next following the expiration of the then current lease
term. Each option period shall be for a term of 5 years (the “Extension
Period”). The terms of this Lease during the Option Periods shall be the same as
during the current Lease period, except as provided below. Tenant shall deliver
written notice to Landlord of Tenant’s desire to extend the Lease term as
provided herein no later than 180 days prior to the termination date of each
lease term.
The
annual Basic Rent as defined in the Lease during each Extension Period shall
be
at the then prevailing market rate for comparable space.
Upon
receipt of such notice, Landlord and Tenant shall have 30 days to agree on
the
market rate for annual Basic Rent to be charged during the extension
period.
If
the
parties are unable to reach agreement within 30 days after Landlord receives
Tenant's Notice, Landlord and Tenant shall, within 40 days after the date
Landlord receives Tenant's Notice, each appoint a broker ("Landlord's Rent
Broker" and "Tenant's Rent Broker," respectively) who is knowledgeable in
commercial property values in the area in which the Premises are located and
is
not an employee or affiliate of either Landlord or Tenant. Landlord's Rent
Broker and Tenant's Rent Broker shall attempt to agree upon the market rental
rate applicable to the Premises. If Landlord's Rent Broker and Tenant's Rent
Broker are unable to reach agreement within 70 days after the date of Landlord's
receipt of Tenant's Notice, they shall, within 80 days after the date of
Landlord's receipt of Tenant's Notice, appoint an additional Rent Broker
("Additional Rent Broker") with the same qualifications and, within 15 days
after such appointment, each of Landlord's Rent Broker and Tenant's Rent Broker
will submit their respective written reports of the market rental rate
applicable to the Premises to the Additional Rent Broker. Within 10 days
thereafter, the Additional Rent Broker shall determine annual Basic Rent for
the
extended term, which will be the rate proposed by Landlord's Rent Broker or
the
rate proposed by Tenant's Rent Broker. If, within 80 days after Landlord' s
receipt of Tenant's Notice, Landlord's Rent Broker and Tenant's Rent Broker
do
not agree upon and designate the Additional Rent Broker, either Landlord or
Tenant may request that the local office of the American Arbitration Association
(or, if such organization or its successor shall no longer be in existence,
a
recognized national arbitration association mutually satisfactory to both
parties), designate the Additional Rent Broker, and the Additional Rent Broker
so designated shall, for all purposes, have the same standing and powers as
though the Additional Rent Broker had been initially appointed by Landlord's
Rent Broker and Tenant's Rent Broker. Landlord and Tenant shall each bear the
cost of its Rent Broker and shall share equally the cost of the Additional
Rent
Broker.
G-1
Upon
determination of the new annual Basic Rent, Landlord and Tenant will execute
an
amendment to this Lease so confirming the extension of the Lease and the new
Basic Rent as soon as practicable.
16.
Tenant Improvements: Landlord has agreed to deliver the Premises to Tenant
according to the details set forth on the Space Plan depicted on Exhibit E,
defining the Landlords “Scope of Work”. Landlord and Tenant agree that the
Exhibit E contains both Building Standard Improvements and Upgrades. Landlord
and Tenant will cooperate to identify the Building Standard Improvements and
Upgrades no later than July 7, 2006 and amend this Exhibit G as
contemplated herein.
Landlord
further agrees that in consideration for Tenant entering into this Lease,
Landlord shall provide the following Building Standard Improvements
(collectively the “Building Standard Improvements”) at no cost to the
Tenant:
Doors
and Hardware
3'0"
x
7'0" solid core oak or birch, stained
Latch
set
(DRG to provide spec), lock optional
Painted
knock down hollow metal door frames
Finishes
Traditional
metal stud partitions to grid, acoustical insulation (25 ga. Studs, 24" on
center) 3 5/8" sheetrock
Level
4
drywall finish
Reception
desk as shown in Suite A, laminate transaction top
Painted,
max of two accent colors approved by landlord, base color
Broadloom,
glue-down carpet, spec provided by DRG
4"
rubber
base
VCT
in
breakroom
2'x4'
acoustical ceiling tile
Ceramic
tile at bathroom wet wall/s
Specialities
One
ea.
water closet (Men and Women)
Furnishings
Vertical
blinds as shown in Suite A on all exterior windows
Mechanical/Plumbinq
HVAC
to
similar to Suite A
Exhaust
fan in restrooms
Lavatories
in restrooms- one each
Electrical
2'x4'
deep cell parabolic fixtures, troffer layout one per 80 square feet
2
standard duplex outlets per room (color and type of covers and devises to
match
suite A)
1
data
stub/room
Tenant
has requested and Landlord has agreed to construct certain upgrades
(collectively the “Upgrades”) to the Premises that are in addition to the
Building Standard Improvements provided by Landlord listed above. Landlord
has
agreed to amortize the cost of the Upgrades over the initial term of the Lease
together with the Landlords cost of funds at 10% per annum. Tenant has agreed
to
pay for the cost of these Upgrades in the form of Additional Rent as provided
in
article 4.5 of the Lease, upon Tenant's approval of such Upgrades in connection
with engineering drawings and final pricing.
Landlord
agrees to provide Tenant with an initial estimate of Upgrade costs for the
prior
to execution of the Lease and the final pricing prior commencement of
construction of any of the improvements. Tenant acknowledges that Landlord
shall
not be bound by any pricing until such time as the final construction drawings
have been issued by Tenant’s Architect and Landlord has had reasonable time to
obtain competitive bids from its subcontractors for the proposed work. Landlord
acknowledges and agrees not to incorporate any of the Upgrades into the Scope
of
work until Tenant has reviewed the final pricing for each Upgrade and approved
the same in writing.
The
Upgrades incorporated into the Space Plan attached as Exhibit E are as
follows:
UPGRADES
Millwork,
shelving and casework
Receptionist
desk extension beyond what is shown in Suite A
Conference
room/interior glazing
24"
wide,
frameless Sidelites on interior private office doors (4- BY LANDLORD)
Level
5
drywall finish (proposed, difference between 5 and 4) Partition
penetration beyond grid ceiling
All
drywall ceilings and soffits, except restrooms
2'x2'
acoustical ceiling tile
Carpet
border
Carpet
base (proposed)
Carpet
pad
Ceramic
tile (proposed)
Granite
transaction top at receptionist desk
Shelving
(proposed)
Casework
(proposed)
Exhaust
fan in break room
Sink/plumbing
in break room
Difference
between building standard 2'x4' deep cell parabolic and incandescent lighting
HVAC
temperature control system
BY
TENANT
Data/phone
cabling
Upon
the
completion of the construction, Landlord and Tenant will approve the schedule
of
Additional Rent attributed to the cost of construction of the Upgrades as
approved by Tenant above.
G-2
IN
WITNESS WHEREOF the parties hereto have caused this Exhibit G to be
executed the day and year first above written.
TENANT:
SOLERA
NATIONAL BANCORP, Inc., a Delaware
corporation
By:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
V.P., Secretary & Treasurer
LANDLORD:
CLAIRBRIDGE
COMPANIES, LLC a Colorado limited liability Company
By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
President
G-3