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EXHIBIT 10.12
Lease Agreement between Registrant and the State of California Public
Employee's Retirement System for the Property at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
dated 10/12/94
TABLE OF CONTENTS
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ARTICLE I - GRANT OF LEASE............................................................................................1
1.1 Grant...............................................................................................1
1.2 Quiet Enjoyment.....................................................................................1
1.3 Covenants of Landlord and Tenant....................................................................1
ARTICLE II - TERM AND POSSESSION......................................................................................1
2.1 Term................................................................................................1
2.2 Tenant Improvement Work.............................................................................2
2.3 Early Occupancy.....................................................................................2
2.4 Delayed Possession..................................................................................2
2.5 Acceptance of Premises..............................................................................3
ARTICLE III - RENT AND ADDITIONAL CHARGES.............................................................................3
3.1 Base Rent...........................................................................................3
3.2 Operating Costs.....................................................................................4
3.3 Payment of Operating Costs..........................................................................4
3.4 Payment of Rent and Additional Charges- General.....................................................5
3.5 Late Fees...........................................................................................5
3.6 Security Deposit....................................................................................6
ARTICLE IV - USE OF PREMISES..........................................................................................6
4.1 Designated Use......................................................................................6
4.2 Usage and Compliance With Law.......................................................................6
4.3 Abandonment.........................................................................................7
4.4 Nuisance............................................................................................7
4.5 Hazardous Materials.................................................................................7
ARTICLE V - SERVICES, MAINTENANCE, REPAIR AND ALTERATIONS BY LANDLORD.................................................8
5.1 Services to Premises................................................................................8
5.2 Building Services...................................................................................8
5.3 Maintenance, Repair and Replacement.................................................................9
5.4 Additional Services.................................................................................9
5.5 Alterations by Landlord............................................................................10
5.6 Access by Landlord.................................................................................10
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ARTICLE VI - MAINTENANCE, REPAIR, ALTERATIONS
AND IMPROVEMENTS BY TENANT...........................................................................................10
6.1 Condition of Premises..............................................................................10
6.2 Failure to Maintain Premises.......................................................................11
6.3 Alterations by Tenant..............................................................................11
6.4 Trade Fixtures and Personal Property...............................................................12
6.5 Mechanic's Liens...................................................................................12
6.6 Signs..............................................................................................12
ARTICLE VII - TAXES..................................................................................................13
7.1 Landlord's Taxes...................................................................................13
7.2 Tenant's Taxes.....................................................................................13
7.3 Right to Contest...................................................................................13
ARTICLE VIII - INSURANCE.............................................................................................14
8.1 Landlord's Property Insurance......................................................................14
8.2 Liability Insurance................................................................................14
8.3 Tenant's Insurance.................................................................................15
ARTICLE IX - INJURY TO PERSON OR PROPERTY............................................................................16
9.1 Indemnity and Exoneration..........................................................................16
9.2 Waiver of Subrogation..............................................................................16
ARTICLE X - ASSIGNMENT AND SUBLETTING................................................................................17
10.1 Assignment and Subleasing by Tenant................................................................17
10.2 First Offer to Landlord............................................................................17
10.3 Tenant's Obligations Continue......................................................................17
10.4 Rent or Other Premiums.............................................................................17
10.5 Subsequent Assignments.............................................................................18
ARTICLE XI - PARKING.................................................................................................18
11.1 License to Use Parking Area........................................................................18
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ARTICLE XII - SURRENDER..............................................................................................18
12.1 Possession.........................................................................................18
12.2 Trade Fixtures, Personal Property and Improvements.................................................18
12.3 Merger.............................................................................................18
12.4 Payments After Termination.........................................................................19
ARTICLE XIII - HOLDING OVER..........................................................................................19
13.1 Month-to-Month Tenancy.............................................................................19
ARTICLE XIV - RULES AND REGULATIONS..................................................................................19
14.1 Purpose............................................................................................19
14.2 Observance.........................................................................................19
14.3 Modification.......................................................................................19
14.4 Non-Compliance.....................................................................................20
ARTICLE XV - EMINENT DOMAIN..........................................................................................20
15.1 Taking of Premises.................................................................................20
15.2 Partial Taking of Building.........................................................................20
15.3 Surrender..........................................................................................20
15.4 Partial Taking of Premises.........................................................................20
15.5 Awards.............................................................................................21
ARTICLE XVI - DAMAGE BY FIRE OR OTHER CASUALTY.......................................................................21
16.1 Limited Damage to Premises.........................................................................21
16.2 Major Damage to Premises...........................................................................21
16.3 Abatement..........................................................................................21
16.4 Major Damage to Building...........................................................................22
16.5 Failure to Rebuild.................................................................................22
16.6 Limitation on Landlord's Liability.................................................................22
ARTICLE XVII - TRANSFERS BY LANDLORD.................................................................................22
17.1 Sales, Conveyance and Assignment...................................................................22
17.2 Effect of Sale, Conveyance or Assignment...........................................................22
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17.3 Subordination......................................................................................22
17.4 Attornment.........................................................................................22
17.5 Nondisturbance.....................................................................................23
17.6 Effect to Attornment...............................................................................23
17.7 Execution of Instruments...........................................................................23
ARTICLE XVIII - NOTICES, ACKNOWLEDGMENT, AUTHORITIES FOR ACTION......................................................23
18.1 Notices............................................................................................23
18.2 Estoppel Certificates..............................................................................23
ARTICLE XIX - DEFAULT................................................................................................24
19.1 Interest and Costs.................................................................................24
19.2 Right of Landlord to Perform Covenant..............................................................24
19.3 Event of Default...................................................................................24
19.4 Landlord's Remedies Upon Default..................................................................25
19.5 Waiver of Exemption and Redemption.................................................................27
19.6 Remedies Cumulative................................................................................27
19.7 DELETED............................................................................................27
ARTICLE XX - DEFAULT BY LANDLORD; LIMITATION OF LIABILITY............................................................27
20.1 Landlord Default...................................................................................27
20.2 Satisfaction of Judgment...........................................................................27
ARTICLE XXI - MISCELLANEOUS..........................................................................................28
21.1 Relationship of Parties............................................................................28
21.2 Consent Not Unreasonably Withheld..................................................................28
21.3 Name of Building...................................................................................28
21.4 Applicable Law and Construction....................................................................28
21.5 Waiver of Conflicting Laws.........................................................................28
21.6 Entire Agreement...................................................................................28
21.7 Amendment or Modification..........................................................................28
21.8 Construed Covenants and Severability...............................................................28
21.9 No Implied Surrender or Waiver.....................................................................29
21.10 Light and Air......................................................................................29
21.11 Relocation Right...................................................................................29
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21.12 Authority..........................................................................................29
21.13 Successors Bound...................................................................................29
21.14 Tenant's Early Termination Right...................................................................30
21.15 Option to Renew....................................................................................30
21.16 Right of First Refusal.............................................................................30
21.17 Guaranty...........................................................................................30
EXHIBIT "A" FLOOR PLAN OF PREMISES
EXHIBIT "B" LEGAL DESCRIPTION OF BUILDING
EXHIBIT "C" AGREEMENT FOR COMPLETION OF PREMISES
EXHIBIT "D" RULES AND REGULATIONS
EXHIBIT "E" GUARANTY
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THE SOLARIUM BUILDING
OFFICE LEASE
THIS LEASE AGREEMENT is made and entered into as of the date set forth
below between STATE OF CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM, an
agency of the State of California, hereinafter referred to as Landlord, and
NEON HEALTHCARE AND SYSTEMS, INC., an Illinois corporation, hereinafter
referred to as Tenant.
Landlord and Tenant, in consideration of the covenants herein
contained, agree as follows:
ARTICLE I
GRANT OF LEASE
1.1 Grant. Landlord hereby demises and leases to Tenant, and Tenant
hereby leases and accepts from Landlord, to have and to hold during the Term,
those certain premises designated on the floor plan attached hereto as Exhibit
"A" (the "Premises") and numbered Suite 230, subject to the terms and
provisions of this Lease. The Premises consist of approximately 3,777 leasable
square feet of the Building located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, including the north wing and south wing of the structure,
together with the atrium area and all parking areas, walkways, landscaped areas
and open spaces used in connection therewith (collectively, the "Building"), as
more particularly described in Exhibit "B". The leasable square footage of the
Premises set forth above represents the usable area granted for Tenant's
exclusive use plus, on a multiple tenancy floor, a proportionate amount of the
area on the floor which is of specific benefit to the tenants of that floor,
including restrooms, corridors, lobbies, telephone closets, electrical rooms,
janitorial closets and Common Areas on that floor, but excluding all central
core stairwells, elevator shafts, flues, stacks, pipe shafts and vertical
ducts, with their enclosing walls.
1.2 Quiet Enjoyment. Landlord agrees that Tenant. upon payment of Rent
and all other monetary sums due under this Lease and upon performing the
covenants and conditions of this Lease, may quietly have, hold and enjoy the
Premises during the Term hereof, subject, however, to the provisions for
condemnation hereinafter set forth.
1.3 Covenants of Landlord and Tenant. Landlord covenants to observe
and perform all of the terms and conditions to be observed and performed by
Landlord under this Lease. Tenant covenants to pay the Rent when due under this
Lease, and to observe and perform all of the terms and conditions to be
observed and performed by Tenant under this Lease.
ARTICLE II
TERM AND POSSESSION
2.1 Term. The Term of this Lease shall commence on the 1st day of
January, 1995 ("Commencement Date"), and end on the 31st day of December, 1999,
unless terminated earlier as provided in this Lease.
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2.2 Tenant Improvement Work. Prior to the Commencement Date, Landlord
shall cause the premises to be prepared for occupancy, as provided in the
Agreement for Completion of the Premises (the "Completion Agreement") attached
to this Lease as Exhibit "C". The cost of completion of the tenant improvement
work to the Premises shall be borne by the parties as provided in the
Completion Agreement. Except as expressly provided in the Completion Agreement,
any tenant improvements to the Premises for which Landlord shall be responsible
shall be subject to the following:
(a) Tenant may substitute different new material (except
exterior window coverings) or make changes to the final working drawings and
specifications only with Landlord's prior express approval, which may be
withheld in Landlord's sole discretion. Any substitutions or changes must be
shown on the working drawings and in the specifications and shall be of equal
or better quality than the items originally designated and must be deemed by
Landlord to be in conformance with the quality and design criteria established
within the Building. In the event Landlord shall approve of any requested
substitution or change, Tenant shall bear the cost of making any changes to the
working drawings and specifications as well as any additional costs occasioned
by the change or substitution, including costs of disruption and delay. Tenant
shall pay such additional costs to Landlord within ten (10) days of receipt of
Landlord's invoice for the same.
(b) It is agreed that notwithstanding the date provided in
this Lease for the commencement of the Term, Tenant's obligation to pay Rent
shall not commence until the tenant improvement work has been sufficiently
completed to enable issuance of a certificate of occupancy for the subject
space; provided, however, that if Landlord shall be delayed in sufficiently
completing said work as a result of Tenant's request for substitution of
materials, finishes, fixtures, equipment or installations or any other change
to the working drawings and specifications requested by Tenant and approved by
Landlord, or the failure of Tenant to provide timely approvals of working
drawings or other specifications necessary for completion of the work, then the
Commencement Date of the Term of this Lease and the payment of rent shall not
be extended.
2.3 Early Occupancy. If Tenant occupies or begins to conduct business
in all or any portion of the Premises before the Commencement Date, such
occupancy and conducting of its business by Tenant shall be subject to all
provisions of this Lease which reasonably and logically apply thereto, and
Tenant shall pay to Landlord upon demand, and not later than the Commencement
Date in the absence of such demand, a rental equal to that proportion of Rent
for one calendar year which the number of days of such early occupancy period
bears to 365.
2.4 Delayed Possession. If Landlord is delayed in delivering
possession of all or any portion of the Premises to Tenant on or before the
Commencement Date for reasons not attributable to Tenant's conduct or requests,
then Tenant shall take possession of the Premises on the date (not later than
six (6) months after the Commencement Date) when Landlord delivers possession
of all of the Premises, and the last day of the Term shall not be advanced but
the total length of the Term shall be reduced accordingly. This Lease shall not
be void or voidable nor shall Landlord be liable to Tenant for any loss or
damage resulting from any delay in delivering possession of the Premises to
Tenant, its servants, agents or independent contractors, no Rent shall be
payable by Tenant for the period prior to the date on which Landlord can so
deliver possession of all of the Premises.
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2.5 Acceptance of Premises. Taking possession of all or any portion of
the Premises by Tenant shall constitute Tenant's acceptance of the Premises or
such portion thereof as being in satisfactory condition, subject only to latent
defects and deficiencies (if any) listed in writing in a notice delivered by
Tenant to Landlord not more than fifteen (15) days after the date of taking
possession or the Commencement Date, whichever later occurs.
ARTICLE III
RENT AND ADDITIONAL CHARGES
3.1 Base Rent. Tenant shall pay to Landlord for use of the Premises,
in lawful money of the United States, base Rent in accordance with the
following schedule:
January 1, 1995 through December 31, 1995:
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Base Rent for Period Monthly Base Rent Sq. Foot Cost
-------------------- ----------------- --------------
$45,324.00 $3,777.00 $12.00
January 1, 1996 through December 31, 1996:
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Base Rent for Period Monthly Base Rent Sq. Foot Cost
-------------------- ----------------- --------------
$47,212.50 $3,934.37 $12.50
January 1, 1997 through December 31, 1997:
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Base Rent for Period Monthly Base Rent Sq. Foot Cost
-------------------- ----------------- --------------
$49,101.00 $4,091.75 $13.00
January 1, 1998 through December 31, 1998:
------------------------------------------
Base Rent for Period Monthly Base Rent Sq. Foot Cost
-------------------- ----------------- --------------
$50,989.50 $4,249.12 $13.50
January 1, 1999 through December 31, 1999:
------------------------------------------
Base Rent for Period Monthly Base Rent Sq. Foot Cost
-------------------- ----------------- --------------
$52,878.00 $4,406.50 $14.00
Base Rent shall be payable in advance and without notice in monthly
installments of the Monthly Base Rent as indicated above with the first such
installment due on the Commencement Date and each subsequent installment due on
the first day of each calendar month thereafter. If the Commencement
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Date or the day immediately following the last day of the Term is other than
the first day of a calendar month, the Monthly base Rent set forth herein shall
be prorated for the portion of the Term included within the month in which such
day occurs.
3.2 Operating Costs. In addition to Base Rent, Tenant shall pay to
Landlord, at the times and in the manner hereinafter provided, its
proportionate share of Building Operating Costs which exceeds the "Expense
Stop," as hereinafter defined. Tenant's proportionate share shall be calculated
by dividing Tenant's leasable area by the total leasable area within the
Building, subject to adjustment as deemed necessary by Landlord to reflect
Tenant's proportionate share of the leasable area of the Building. The
resultant fraction shall be multiplied by the total Building Operating Costs.
Tenant's proportionate share is 2.288%. The total Operating Costs are defined
as follows:
(a) Inclusions: The Operating Costs for which the Tenant is
liable to the Landlord include all expenses incurred by Landlord with respect
to the maintenance and operation of the Building and land upon which the
Premises are a part, including, without limitation, maintenance and repair
costs of all systems and improvements, utilities, sewer, security, janitorial,
trash and snow removal, landscaping, pest control. management fees, wages and
fringe benefits payment to employees of Landlord whose duties are connected
with the operation and maintenance of the Building, janitorial fees, all
services, supplies, repairs. replacements or other expenses for maintaining, in
addition to the Building and land of which the leased Premises are a part, the
common and parking areas, and the Premises to the extent such items and
services are provided in general to office tenants of the Building. The term
Operating Costs also includes all real property taxes and installments of
special assessments, including special assessments due to deed restrictions
and/or owner's associations, which accrue against the Building of which the
leased Premises are a part during the term of this Lease and any nonprogressive
tax on or measured by gross rentals received from the rental of space in the
Building, all as may be elsewhere limited by virtue of Tenant's liability
therefor. If Landlord employs legal counsel in an effort to reduce or otherwise
obtain relief from taxes or assessments which, if successful would reduce the
total Operating Costs, the term Operating Costs shall include the fees of such
legal counsel. In addition, such insurance monies as are assessable to the
Tenant as elsewhere defined shall be includable within Operating Costs.
(b) Exclusions: The term Operating Costs shall not include
any capital improvement to the Building of which the leased Premises are a part
(unless such capital improvement is designed for and intended to reduce the
total amount of annual Operating Costs for which Tenant is responsible), nor
repair, restoration or other work occasioned by fire, wind storm or other
casualty, income and franchise taxes of Landlord, expenses incurred in leasing
to or procuring of tenants, advertising expenses, expenses for the renovating
of space to new tenant. Interest or principal payments on any mortgage or other
indebtedness of Landlord, compensation paid to an employee of Landlord above
the grade of building superintendent nor any depreciation allowance on the
Building.
3.3 Payment of Operating Costs.
(a) Prior to the Commencement Date and the beginning of each
calendar year thereafter, Landlord shall compute and deliver to Tenant a bona
fide estimate of Tenant's proportionate
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share of Operating Costs for the appropriate calendar year and without further
notice tenant shall pay to Landlord monthly installments of Operating Costs
equal to one-twelfth (1/12) of such estimate simultaneously with Tenant's
payments of Base Rent. If at any time during the Term, Landlord has reason to
believe that the Operating Costs for the calendar year will exceed its prior
estimate, Landlord may by invoice direct Tenant to increase its monthly
installment by an amount which, when multiplied by the number of months
remaining in said calendar year, will equal Tenant's proportionate share of the
amount Landlord estimates the Operating Costs for the calendar year will exceed
its last estimate. Notwithstanding the foregoing, Tenant's obligation for
payment of Operating Costs during any calendar year shall be limited to the
amount by which the Tenant's proportionate share of Operating Costs exceed the
per square foot Operating Costs of the Building for the 1995 calendar year, and
the number of leasable square feet comprising the Premises ("Expense Stop");
provided, however, for the purpose of calculating Tenant's obligation for
Operating Costs for the first and last calendar years during the Term of this
Lease, the Expense Stop shall be prorated for the number of days of the Term
which occur within such calendar year. One-twelfth of the annual Expense Stop
shall be deducted from each monthly installment of Tenant's proportionate share
of Operating Costs.
(b) Within nine (9) months following the end of each calendar
year, Landlord shall deliver to Tenant a written statement (the "Statement")
setting out in reasonable detail the amount of Tenant's proportionate share of
Operating Costs for such calendar year in excess of the Expense Stop. If the
aggregate of monthly and quarterly installments of Operating Costs actually
paid by Tenant to Landlord during such calendar year is less than the amount of
Operating Costs payable for such calendar year as revealed in the Statement,
Tenant shall Pay such difference to Landlord, without interest, within ten (10)
days after the date of delivery of the Statement. If such aggregate
installments of Operating Costs paid by Tenant shall exceed the amount of
Operating Costs payable by Tenant as revealed in the Statement, such
overpayment by Tenant shall be refunded to Tenant's after Landlord's
calculation of the Operating Expenses for the prior year. Upon the expiration
or earlier termination of this Lease. any such overpayment due to Tenant shall
be paid to Tenant within a reasonable time after such expiration or
termination, minus any amounts due from Tenant to Landlord hereunder.
(c) Neither party may claim a readjustment in respect of
Operating Costs for any calendar year if based upon any error of computation or
allocation except by notice delivered to the other party within six (6) months
after the date of delivery of the Statement.
3.4 Payment of Rent and Additional Charges. All amounts payable by
Tenant to Landlord under this Lease, not limited to that payable under this
Article, shall be deemed to be Rent and shall be payable and recoverable as
Rent in the manner herein provided, and Landlord shall have all rights against
Tenant for default in any such payment as in the case of arrears of Rent. Rent
shall be paid to Landlord, without deduction or set-off, in legal tender of the
jurisdiction in which the Building is located, at the address of Landlord set
forth in this Lease, or to such other person or at such other address as
Landlord may from time to time designate in writing. Rent shall not be deemed
paid until actually received by Landlord. Tenant's obligation to pay Rent shall
survive the expiration or earlier termination of this Lease.
3.5 Late Fees.
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(a) In addition to all other remedies provided Landlord, in
the event any amounts payable by Tenant to Landlord under this Lease,
including, without limitation, Base Rent and Additional Rent are not received
by Landlord on or before the fifth (5th) day of the month for which it is due
or such other due date as may be specifically provided herein, Landlord shall
be entitled to a ten percent (10%) service charge of such past due amount,
which shall be due and payable without notice; provided however that Tenant
shall be entitled to three (3) grace periods of five (5) days each during the
Term of this lease during which period Tenant shall not be charged a service
charge; provided further however if the grace period have been utilized or the
payment is made after the tenth (10th) day the service charge may be imposed.
3.6 Security Deposit. Concurrently with Tenant's execution of this
Lease, Tenant shall deposit with Landlord an amount equal to the first full
month's installment of Base Rent to be held by Landlord as security for the
faithful performance of every provision of this Lease to be performed by
Tenant. If Tenant defaults with respect to payment of Rent, Landlord may (but
shall not be required to) use, apply or retain all or any part of this Security
Deposit for the payment of Rent or any other sum in default, or for the payment
of any amount which Landlord may spend or become obligated to spend by reason
of Tenant's default or to compensate Landlord for any other loss or damage
which Landlord may suffer by reason of Tenant's default; provided, however,
that the security deposit shall not be used to repair ordinary wear and tear to
the Premises. If any portion of said deposit is so used or applied, Tenant
shall, within ten (10) days after written demand therefor, deposit cash with
Landlord in an amount sufficient to restore the Security Deposit to its
original amount, and Tenant's failure to do so shall be deemed a material
breach of this Lease. Landlord shall not be required to keep this Security
Deposit separate from its general funds and Tenant shall not be entitled to
interest on said deposit. If Tenant shall fully and faithfully perform every
provision of this Lease to be performed by it, the Security Deposit or any
balance thereof shall be returned to Tenant (or Tenant's assignee) at the
expiration of the Term and after Tenant has vacated the premises; however, in
no event shall Landlord be under any obligation to return said deposit earlier
than sixty (60) days after the expiration of the Term, but Landlord shall
provide a written statement to Tenant specifying, in reasonable detail, the
reasons for Landlord's retaining any portion of the Security Deposit and shall
return any unretained portion thereof to tenant no later than sixty (60) days
after the expiration of the Term.
ARTICLE IV
USE OF PREMISES
4.1 Designated Use. The Premises shall be used and occupied only for
the purpose of general offices and for no other purpose.
4.2 Usage and Compliance With Law, The Premises shall be used and
occupied in a safe, careful and proper manner so as not to interfere with,
annoy or disturb any other tenant in its normal business operations or Landlord
in its management of the Building nor shall Tenant contravene any present or
future governmental or quasi-governmental laws, regulations or orders
applicable to Tenant or the Premises. If due to Tenant's use of the Premises,
improvements are necessary to comply with any of the foregoing or with the
requirements of insurance carriers, Tenant shall pay the entire cost thereof.
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4.3 Abandonment. Tenant shall not vacate or abandon the Premises at
any time during the Term without Landlord's written consent.
4.4 Nuisance. Tenant shall not cause or maintain any nuisance in or
about the Premises, and shall keep the Premises free of debris, rodents, vermin
and anything of a dangerous, noxious or offensive nature or which could create
a fire hazard (through undue load on electrical circuits or otherwise) or undue
vibration, heat, noise or weight upon or about the Premises. Landlord shall not
be liable to Tenant for the failure to enforce the terms of this Article upon
Tenant or other occupants of the Building.
4.5 Hazardous Materials.
(a) Tenant shall not cause or permit any Hazardous Material
(as defined in Subparagraph (c) below) to be brought, kept or used in or about
the Premises or the Building by Tenant, its agents, employees, contractors or
invitees. Tenant hereby indemnifies Landlord from and against any breach by
Tenant of the obligations stated in the preceding sentence, and agrees to
defend and hold Landlord harmless from and against any and all loss, damage,
cost and/or expense (including, without limitation, diminution in value of the
building, damages for the loss or restriction on use of rentable or usable
space or of any amenity of the Building, damages arising from any adverse
impact on marketing of space in the Building, and sums paid in settlement of
claims, attorneys' fees, consultant fees, and expert fees) which arise during
or after the term of this Lease as a result of breach. This indemnification of
Landlord by Tenant includes, without limitation, costs incurred in connection
with any investigation of site conditions or any cleanup, remedial, removal, or
restoration work required by any federal, state or local governmental agency or
political subdivision because of Hazardous Material present in the soil or
ground water on or under the Building which results from such a breach. Without
limiting the foregoing, if the presence of any Hazardous Material in the
Premises or the Building caused or permitted by Tenant results in any
contamination of the Premises or the Building, Tenant shall promptly take all
actions at its sole expense as are necessary to return the Premises or the
Building, as appropriate, to the condition existing prior to the introduction
of such Hazardous Material; provided that Landlord's approval of such actions,
and the contractors to be used by Tenant in connection therewith, shall first
be obtained.
(b) It shall not be unreasonable for Landlord to withhold its
consent to any proposed transfer, assignment, or subletting of the Premises if
(i) the proposed transferee's anticipated use of the Premises involves the
generation, storage, use, treatment, or disposal of Hazardous Material; (ii)
the proposed transferee has been required by any prior landlord, lender, or
governmental authority to take remedial action in connection with Hazardous
Material contaminating a property if the contamination resulted from such
transferee's actions or use of the property in question; or (iii) the proposed
transferee is subject to an enforcement order issued by any governmental
authority in connection with the use, disposal, or storage of a Hazardous
Material.
(c) As used herein, the term "Hazardous Material" means any
hazardous or toxic substance, material, or waste which is or becomes regulated
by any governmental authority or the United States Government. The term
"Hazardous Material" includes, without limitation, any material or substance
which is (i) defined as a "hazardous material", "extremely hazardous waste", or
"restricted hazardous waste" or similar term under the law of the jurisdiction
where the property is located or
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(ii) designated as a "hazardous substance" pursuant to Section 311 of the
Federal Water Pollution Control Act (33 U.S.C. Section 1317), (iii) defined as
a "hazardous waste" pursuant to Section 1004 of the Federal Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq. (42 U.S.C.
Section 6903), or (iv) defined as a "hazardous substance" pursuant to Section
101 of the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. Section 9601 et seq. (42 U.S.C. Section 9601), as all such
statutes may be amended from time to time, and including all successor statutes
thereto.
(d) As used herein, the terms "Laws" means any applicable
federal, state, or local laws, ordinances, or regulations relating to any
Hazardous Material affecting the Premises of the Building, including without
limitation, the laws, ordinances, and regulations referred to in Subparagraph
(c) above.
(e) Landlord and its employees, representatives and agents
shall have access to the Premises during reasonable hours and upon reasonable
notice to Tenant in order to conduct periodic environmental inspections and
tests of Hazardous Waste contamination hereof.
ARTICLE V
SERVICES, MAINTENANCE, REPAIR AND ALTERATIONS BY LANDLORD
5.1 Services to Premises. Subject to Tenant's payment of its Base Rent
and such additional charges as are set forth in this Lease, including without
limitation, Tenant's percentage share of Operating Costs, Landlord shall
provide in the Premises:
(a) Heat, ventilation air cooling (subject to governmental
restrictions) as may be customary for comparable office buildings in the Denver
area, during normal business hours;
(b) Electrical power for normal lighting and customary small
business office equipment (but not including machines of high electrical
consumption which may cause overloading of the Building's electrical circuits
nor special meter installation and temperature control as may be directly
associated therewith);
(c) Replacement of Building standard fluorescent tubes, light
bulbs and ballasts as required from time to time as a result of normal usage.
5.2 Building Services. Landlord shall provide in the Building:
(a) Domestic running water in washrooms sufficient for the
normal and customary use thereof by occupants in the Building;
(b) Access to and egress from the Premises, subject to
reasonable rules and regulations and restrictions imposed by Landlord for the
orderly operation of the building and to safeguard the Building and its
occupants in emergencies; and
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(c) Heat, ventilation, cooling, lighting, electric power and
domestic running water in those areas of the Building as may from time to time
be designated by Landlord for use during normal business hours by Tenant in
common with all tenants in the Building but under the exclusive control of
Landlord.
5.3 Maintenance, Repair and Replacement. Landlord shall operate,
maintain, repair and replace the systems, facilities and equipment directly
necessary for the provision of Landlord services under this Article (except as
such may be installed by or be the property of Tenant), and shall be
responsible for and shall maintain and repair the foundations, structure,
supports and root of the Building and shall operate the Building to a standard
comparable to that of comparable office buildings in the Denver area, provided
that:
(a) If all or part of such systems, facilities and equipment
are destroyed, damaged or impaired, Landlord shall have a reasonable time
following notice in which to complete the necessary repair or replacement, and
during that time shall be required only to maintain such services as are
reasonably possible in the circumstances;
(b) Landlord may temporarily discontinue such services or any
of them at such times as may be necessary due to causes (except lack of funds)
beyond the reasonable control of Landlord or for the purposes of maintenance,
repair, replacement, testing or examination;
(c) Landlord shall use reasonable diligence in carrying out
its obligations under this Article but shall not be liable under any
circumstances for any consequential damage to any person or property for any
failure to do so;
(d) No reduction or discontinuance of such services under
this Article shall be construed as an eviction of Tenant or (except as
specifically provided in this Lease) release Tenant from any obligation of
Tenant under this Lease; and
(e) Nothing contained herein shall derogate from the
provisions of that Article entitled Damage by Fire or Other Casualty.
5.4 Additional Services.
(a) If from time to time requested in writing by Tenant and
to the extent that it is reasonably able to do so, Landlord may provide the
Premises services in addition to those set out in this Article, provided that
Tenant shall, within ten (10) days of receipt of any invoice for any such
additional service pay Landlord therefor at such reasonable rates as Landlord
may from time to time establish, plus twenty percent (20%) of such rates for
Landlord's overhead and supervision fee;
(b) Tenant shall not without Landlord's written consent
install in the Premises equipment (including telephone equipment) which
generates sufficient heat to affect the temperature otherwise maintained in the
Premises by the air conditioning system as normally operated. Landlord may
install supplementary air conditioning units, facilities or services in the
Premises, or modify its air
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conditioning system, as may in Landlord's reasonable opinion be required to
maintain proper temperature levels, and Tenant shall pay Landlord within ten
(10) days of receipt of any invoice for the cost thereof, including
installation, operation and maintenance expense;
(c) If Landlord shall from time to time reasonably determine
that the use of electricity or any other utility or service in the Premises is
disproportionate to the usage of other tenants, Landlord may separately charge
Tenant for the excess costs attributable to such disproportionate use. At
Landlord's request, Tenant shall install and maintain at Tenant's expense,
metering devices for checking the use of any such utility or services in the
Premises, subject to Landlord's approval of such metering devices and
supervision of Tenant's installation of such devices to prevent disruption of
or interference with the utilities and services of the Building supplied to
other tenants thereof.
5.5 Alterations by Landlord. Landlord may from time to time after
reasonable notice to Tenant (except in the case of emergencies):
(a) Make repairs, replacements, changes or additions to the
structure, systems, facilities and equipment in the Premises where necessary to
serve the Premises or other parts of the Building;
(b) Make changes in or additions to any part of the Building
not in or forming part of the Premises; and
(c) Change or alter the location of any areas of the Building
which may, from time to time, be designated by Landlord for use during normal
business hours by Tenant in common with all tenants in the Building but under
the exclusive control of Landlord.
5.6 Access by Landlord. Tenant shall permit Landlord and its
employees, managers, contractors, brokers, agents, and representatives to enter
the Premises outside normal business hours, and during normal business hours
where such entry will not unreasonably disturb or interfere with Tenant's use
of the Premises and operation of its business, to examine and inspect the same,
to provide services or make repairs, replacements, changes or alterations as
set out in this Lease, to show the Premises during final year of the Term of
this Lease to prospective purchasers and tenants and Landlord's lenders, and to
take such steps as Landlord may deem necessary for the safety, improvement and
preservation of the Premises or the Building. Landlord shall, whenever
possible, consult with or give reasonable notice to Tenant prior to such entry,
but no such entry shall constitute an eviction or entitle Tenant to any
abatement of Rent.
ARTICLE VI
MAINTENANCE, REPAIR, ALTERATIONS AND IMPROVEMENTS BY TENANT
6.1 Condition of Premises. Except to the extent that Landlord is
specifically responsible therefor under this Lease, Tenant shall maintain the
Premises and all improvements therein in good order and condition, at Tenant's
sole cost and expense, including:
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(a) Subject to reasonable and ordinary wear and tear,
repainting and redecorating the Premises and cleaning drapes and carpets at
reasonable intervals as needed; and
(b) Making repairs, replacements and alterations as needed,
including those necessary to comply with the requirements of any governmental
or quasi-governmental authority having jurisdiction.
6.2 Failure to Maintain Premises. If Tenant fails to perform any
obligation under Article 6.1 following ten (10) days' written notice from
Landlord, then Landlord may enter the Premises and perform such obligations
without liability to Tenant for any loss or damage to Tenant thereby incurred
(except damage due to willful misconduct or gross negligence), and Tenant shall
pay Landlord for the cost thereof, plus twenty percent (20%) of such cost for
overhead and supervision, within ten (10) days of receipt of Landlord's invoice
therefor.
6.3 Alterations by Tenant. Tenant may from time to time at its own
expense make changes, additions and improvements in the Premises to better
adapt the same to its business, provided that any such change, addition or
improvement shall:
(a) Comply with the requirements of any governmental or
quasi-governmental authority having jurisdiction;
(b) Be made only with the prior written consent of Landlord;
(c) Equal or exceed the then current standard for the
Building:
(d) Be carried out only by persons selected by Tenant and
approved in writing by Landlord, who shall, if required by Landlord, deliver to
Landlord before commencement of the work performance and payment bonds as well
as proof of worker's compensation and public liability and property damage
insurance coverage, with Landlord named as an additional insured, in amounts,
with companies, and in form reasonably satisfactory to Landlord, which shall
remain in effect during the entire period in which the work will be carried
out;
(e) Be subject to Landlord's supervision and Tenant's
payment to Landlord of a reasonable supervision and overhead fee therefor; and
(f) Become the property of Landlord and be surrendered to
Landlord upon termination of the Lease. Landlord may, at its option, require
Tenant to remove any physical additions and/or repair any alterations in order
to restore the Premises to the condition existing at the time Tenant took
possession, all costs for which shall be borne by Tenant regardless whether
such removal and/or repair is undertaken by Tenant or Landlord, before or after
the termination of this Lease.
Any increase in property taxes or fire or casualty insurance
premiums for the Building attributable to such change, addition or improvement
shall be borne by Tenant.
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6.4 Trade Fixtures and Personal Property.
(a) Tenant may install in the Premises its usual trade fixtures
and personal property in a proper manner, provided that no such installation
shall interfere with or damage the mechanical or electrical systems or the
structure of the Building.
(b) DELETED.
(c) If Tenant is not then in default hereunder, trade
fixtures and personal property installed in the Premises by Tenant may be
removed from the Premises;
(i) From time to time in the ordinary course of
Tenant's business or in the course of
reconstruction, renovation, or alteration of the
Premises by Tenant; and
(ii) During a reasonable period prior to the
expiration of the Term, provided that Tenant
promptly repairs at its own expense any damage to
the Premises resulting from such installation and
removal.
6.5 Mechanic's Liens. Tenant shall pay before delinquency all costs
for work done or caused to be done in the Premises which could result in any
lien or encumbrance on Landlord's interest in the Building or any part thereof,
or the land on which it is situated, shall keep the title to the same free and
clear of any lien or encumbrance in respect of such work and shall indemnity
and hold harmless Landlord against any claim, loss, cost, demand and legal or
other expense, whether in respect of any lien or otherwise, arising out of the
supply of material, services or labor for such work. Tenant shall immediately
notify Landlord of any such lien, claim of lien or other action of which it has
or reasonably should have knowledge and which affects the title to the Building
or any part thereof, and shall cause the same to be removed within five (5)
days (or such additional time as Landlord may consent to in writing), failing
which Landlord may take such action as Landlord deems necessary to remove the
same and the entire cost thereof shall be immediately due and payable by Tenant
to Landlord. Tenant shall post such notices of non-liability of Landlord, in
form and substance satisfactory to Landlord, as are necessary to prevent any
such lien from attaching to Landlord's interest in the Premises or the
Building.
6.6 Signs. Any sign, lettering or design of Tenant which is visible
from the exterior of the Premises shall be at Tenant's expense and subject to
approval by Landlord, and shall conform to any uniform pattern of
identification signs for tenants in the Building as may, from time to time, be
prescribed by Landlord. Tenant shall not inscribe or affix any sign, lettering
or design in the Premises or building which is visible from the exterior of the
Building.
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ARTICLE VII
TAXES
7.1 Landlord's Taxes. Landlord shall pay before delinquency (subject
to payment by Tenant of its Base Rent and such additional charges as are set
forth in this Lease, including, without limitation, Operating Costs) every real
estate tax and assessment, excepting Tenant's Taxes under Article 7.2. which is
imposed, levied, assessed or charged by any governmental or quasi-governmental
authority having jurisdiction, and which is payable in respect of the Term upon
or on account of the Building or the land on which it is situated. In the
manner set forth in this Lease for the payment of Operating Costs or, at
Landlord's election in such other fashion and manner as may by Landlord be
prescribed, Tenant shall reimburse to Landlord its proportionate share of that
portion of such taxes which are paid with respect to the calendar year.
7.2 Tenant's Taxes. Tenant shall pay before the delinquency every tax,
assessment, license fee, excise and other charge, however prescribed, which is
imposed, levied, assessed or charged by any governmental or quasi-governmental
authority having jurisdiction and which is payable in respect to the Term upon
or on account of:
(a)Operations at, occupancy of, or conduct of business in or from
the Premises by or with the permission of Tenant;
(b)Fixtures or personal property in the Premises which do not
belong to the Landlord; or
(c)The Rent paid or payable by Tenant of Landlord for the Premises
or for the use and occupancy of all or any part thereof:
If Tenant fails to pay any such tax for which it is liable, and if
the non-payment thereof may result in the imposition of any lien against
the Building or any other property of Landlord (or the possibility of sale or
forfeiture thereof), then Landlord may, following ten (10) days' written notice
to tenant, pay such amount, which amount shall immediately be due and payable
to Landlord together with a surcharge of twenty percent (20%) of the amount
paid.
7.3 Right to Contest. Landlord and Tenant shall each have the right to
contest in good faith the validity or amount of any tax, assessment, license
fee, excise fee and other charge which it is responsible to pay, provided that
no contest by Tenant may involve the possibility of forfeiture, sale or
disturbance of Landlord's interest in the Premises and that upon the final
determination of any contest by Tenant, Tenant shall immediately pay and
satisfy the amount found to be due, together with any costs, penalties and
interest.
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ARTICLE VIII
INSURANCE
8.1 Landlord's Property Insurance. Landlord shall secure and maintain
"all risk" property insurance on the Building. Landlord shall not be obligated
to insure any furniture, equipment, trade fixtures, machinery, goods or
supplies which Tenant may lease or maintain in the Demised Premises, or any
addition or improvement which Tenant may make upon the Demised Premises. In
addition, Landlord shall secure and maintain rental income insurance. Landlord
may elect to self-insure for the coverages required under this Article. If the
annual cost to Landlord for such property or rental income insurance exceeds
the standard rates because of the nature of Tenant's operations, Tenant shall,
upon receipt of appropriate invoices, reimburse Landlord for such increases in
cost.
8.2 Liability Insurance.
a) Tenant (with respect to the Demised Premises and the Building)
shall secure and maintain, at its own expense, a policy or policies of
Commercial General Liability Insurance with the premiums thereon fully paid in
advance, protecting Tenant and naming Landlord and Landlord's representatives
(which term, whenever used in this Article 8. shall be deemed to include the
following: Landlord's agents, employees, trustees, officers, directors,
property manager, and advisors) as additional insureds against claims for
bodily injury, personal injury, advertising injury and property damaged based
upon, involving or arising out of the Tenant's use, occupancy or maintenance of
the Demised Premises and the Building. Such insurance shall afford a combined
single limit of not less than One Million Dollars ($1,000,000.00) per
occurrence and aggregate of Two Million Dollars ($2,000,000.00). Any general
aggregate shall apply on a per location basis. The coverage required to be
carried shall include blanket contractual liability, personal injury liability
(libel, slander, false arrest and wrongful eviction), and broad form property
damage liability and the policy shall contain an exception to any pollution
exclusion which insures damage or injury arising out of heat, smoke or fumes
from a hostile fire. Such insurance shall be written on an occurrence basis and
contain a standard separation of insureds provision. Tenant shall secure and
maintain at its expense business auto liability insurance which insures against
bodily injury and property damage claims arising out of the ownership,
maintenance and use of any auto with a minimum combined single limit per
accident of One Million Dollars ($1,000,000.00). In addition, Tenant shall
secure and maintain workers' compensation and employer's liability insurance
with limits of Five Hundred Thousand Dollars ($500,000.00) per accident, Five
Hundred Thousand Dollars ($500,000.00) per employee for bodily injury by
disease with a Five Hundred Thousand Dollar ($500,000.00) policy limit for
bodily injury by disease, and all such other insurance as may be required by
applicable law. Tenant shall also secure and maintain umbrella excess liability
insurance on an occurrence basis that applies in excess of the required
Commercial General Liability Insurance, business auto liability and employer's
liability policies, which insures against bodily injury, property damage,
personal injury and advertising injury claims, with a combined single limit of
not less than Five Million Dollars ($5,000,000.00) per occurrence and an annual
aggregate of Five Million Dollars ($5,000,000.00). Such insurance shall name
Landlord and its representatives as additional insureds. Tenant shall provide
Landlord with a certificate evidencing such insurance coverage. The certificate
shall indicate that the insurance provided specifically recognizes the
liability assumed by Tenant under this Lease and that Tenant's insurance is
primary to and not contributory with any other insurance available to Landlord,
whose insurance shall be considered
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excess insurance only. Not more frequently than every three years, if, in the
opinion of any mortgagee of Landlord or of the insurance broker retained by
Landlord, the amount of liability insurance coverage at that time is not
adequate, then Tenant shall increase its liability insurance coverage as
required by either any mortgagee of Landlord or Landlord's insurance broker.
(b) Landlord (with respect to the Building) shall secure and
maintain Commercial General Liability Insurance for at least the minimum
coverage described in Section 8.2(a). Such insurance shall be in addition to,
and not in lieu of, the insurance required to be maintained by Tenant. Landlord
may elect to self-insure for this coverage. Tenant shall not be named as an
additional insured on any policy of liability insurance maintained by Landlord.
8.3 Tenant's Insurance.
(a) Tenant shall secure and maintain, at Tenant's expense,
"all risk" property insurance on all of Tenant's fixtures and personal properly
in the Demised Premises and on any improvements or alterations, additions or
improvements made by Tenant, upon the Demised Premises, all for the full
replacement cost thereof. Tenant shall use the proceeds from such insurance for
the replacement of fixtures and personal property and for the restoration of
tenant improvements or alterations, additions or improvements to the Demised
Premises. Landlord shall be named as loss payee. In addition, Tenant shall
maintain business income and extra expense insurance with limits not less than
one hundred percent (100%) of tenant's gross revenue for the twelve (12) month
period. Tenant shall provide Landlord with certificates of all such insurance.
The property insurance certificate shall confirm that the waiver of subrogation
required to be obtained pursuant to Section 9.2 is permitted by the insurer.
Tenant shall, at least fifteen (15) days prior to the expiration of any policy
of insurance required to be maintained by Tenant under this Lease, furnish
Landlord with an "insurance binder' or other satisfactory evidence of renewal
thereof.
(b) All policies required to be carried by Tenant hereunder
shall be issued by and binding upon an insurance company licensed to do
business in the State of Colorado with a rating of at least A-:VIII, or such
other rating as may be required by a lender having a lien on the Building as
set forth in the then most current issue of "Best's Insurance Reports." Tenant
shall not do or permit anything to be done that would invalidate the insurance
policies referred to in this Article 8. Evidence of insurance provided to
Landlord shall include an endorsement showing that Landlord and its
representatives are included as additional insureds on general liability
insurance, and as loss payees for property insurance, and an endorsement
whereby the insurer agrees not to cancel, non-renew or reduce coverage of the
policy without at least thirty (30) days prior written notice to Landlord and
its representatives.
(c) In the event that Tenant fails to provide evidence of
insurance required to be provided by Tenant hereunder, prior to commencement of
the Term, and thereafter during the Term, within ten (10) days following
Landlord's request therefor, and thirty (30) days prior to the expiration date
of any such coverage, Landlord shall be authorized (but not required) to
procure such coverage in the amounts stated with all costs thereof (plus a
fifteen percent (15%) administrative fee) to be chargeable to Tenant and
payable upon written invoice therefor.
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(d) The limits of insurance required by this Lease, or as
carried by Tenant, shall not limit the liability of Tenant nor relieve Tenant
of any obligation hereunder.
ARTICLE IX
INJURY TO PERSON OR PROPERTY
9.1 Indemnity and Exoneration.
(a) Landlord shall not be liable for any loss, injury or
damage to person or property of Tenant, Tenant's agents, employees,
contractors, invitees or any other person, whether caused by theft, fire, act
of God, acts of the public enemy, riot, strike, insurrection, war, court order,
requisition or order of governmental body or authority or which may arise
through repair or alteration of any part of the Building or failure to make any
such repair or from any other cause whatsoever except as expressly otherwise
provided in Articles 15 and 16. Landlord shall not be liable for any loss,
injury or damage arising from any act or omission of any other tenant or
occupant of the Building, nor shall Landlord be liable under any circumstances
for damage or inconvenience to Tenant's business or for any loss of income or
profit therefrom (other than Landlord's gross negligence or willful
misconduct).
(b) Tenant shall indemnify, protect, defend and hold the
Building, Landlord and its representatives, harmless of and from any and all
claims, liability, losses, costs, damages, injury or expenses (including costs,
expenses and attorneys fees) arising out of or in any way related to or
resulting directly or indirectly from the use or occupancy of the Demised
Premises, the actions of Tenant, its agents, employees, contractors or invitees
in or about the Demised Premises or the Building and any default or breach by
Tenant in the performance of any obligation of Tenant under this Lease;
provided, however, that the foregoing indemnity shall not be applicable to
claims arising as the result of the gross negligence or willful misconduct of
Landlord.
(c) Tenant shall indemnity, protect, defend and hold the
Building, Landlord and its representatives, harmless of and from any and all
claims, liability, losses, costs, damages, injury or expenses (including costs,
expenses and attorneys' fees) arising out of or in any way related to or
resulting directly or indirectly from work or labor performed, materials or
supplies furnished to or at the request of Tenant or in connection with
obligations incurred by or performance of any work done for the account of
Tenant in the Demised Premises or the Building.
9.2 Waiver of Subrogation. Anything in this Lease to the contrary
notwithstanding, Landlord and Tenant each waives all rights of recovery, claim,
action or cause of action against the other, its agents (including partners,
both general and limited), trustees, officers, directors, and employees, for
any loss or damage that may occur to the Demised Premises, or any improvements
thereto, or the Building or any personal property of such party therein, by
reason of any cause required to be insured against under this Lease, regardless
of cause or origin, including negligence of the other party hereto; and each
party covenants that, to the fullest extent permitted by law, no insurer shall
hold any right to subrogation against such other party. Tenant shall advise its
insurers of the foregoing and such waiver shall be a part
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of each policy maintained by Tenant which applies to the Demised Premises, any
part of the Building or Tenant's use and occupancy of any part thereof.
ARTICLE X
ASSIGNMENT AND SUBLETTING
10.1 Assignment and Subleasing by Tenant. Tenant shall not have the
right to sublet, hypothecate, encumber or otherwise transfer its leasehold
interest in the Premises or any portion thereof under this Lease without
Landlord's prior written consent and any attempt to do so shall constitute a
material breach of this Lease. Landlord shall not unreasonably withhold its
consent to an assignment or subletting to an assignee who is a wholly owned
subsidiary company of Tenant or a company which on the date of execution of
this Lease owns substantially all of the outstanding stock of Tenant, or a
company which results from the reconstruction, consolidation, amalgamation or
merger of Tenant, or a general partnership in which Tenant has a substantial
interest (collectively called "Exempt Entities"), or to any other reputable
entity which in Landlord's opinion is financially secure and not inconsistent
with the character of the Building and the other tenants.
10.2 First Offer to Landlord. If tenant wishes to assign or sublet
this Lease (except to Exempt Entities) Tenant shall first offer in writing to
assign or sublet (as the case may be) to Landlord on the same terms and
conditions and for the same Rent as provided in this Lease. Any such first
offer shall be deemed to have been rejected unless within twenty (20) days of
receipt thereof Landlord delivers written notice of acceptance to Tenant.
10.3 Tenant's Obligations Continue. No assignments, transfer or
subletting (or use or occupation of the Premises by any other person) which is
permitted under this Article shall in any way release or relieve Tenant of its
obligations under this Lease unless such release or relief is specifically
granted by Landlord to Tenant in writing and executed with like formality as
this Lease, or except to the extent Landlord accepts the offer to sublease or
assign as set forth in Article 10.2.
10.4 Rent or Other Premiums. With respect to any assignment, sublease
or other transfer of any interest herein or in the Premises, Tenant shall,
notwithstanding any contrary provision herein, pay to Landlord, promptly
following Tenant's receipt thereof, one-half (1/2) of the amount by which all
rental and other payments (whether paid in installments, as lump sums or
otherwise) relating to the space in question received by Tenant exceed the Base
Rent, Additional Rent and other amounts payable pursuant to this Lease for the
subject period with respect to such space (with the rental and other amounts
payable by Tenant for the Premises allocated on the basis of leasable area).
Amounts payable under this Section by Tenant to Landlord shall be based on
gross figures of any reasonable costs incurred by Tenant in connection with the
transaction in question. The provisions of this Section shall apply regardless
of whether such assignment, sublease or other transfer is made in compliance
with the provisions of this Lease. Any payments made to Landlord pursuant to
this Section shall not cure any default under this Lease arising from such
assignment, sublease or transfer. Tenant shall not artificially structure any
assignment, sublease or other transfer in order to reduce the amount payable to
Landlord under this Section, nor shall Tenant take any steps for the purpose of
circumventing its obligation to pay amounts
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to Landlord under this Section; in the event Tenant does same, the amount
payable to Landlord under this Section shall be an amount that would have been
payable to Landlord had such circumvention not occurred.
10.5 Subsequent Assignments. Landlord's consent to an assignment,
transfer or subletting (or use or occupation of the Premises by any other
person) shall not be deemed to be consent to any subsequent assignment,
transfer, subletting, use or occupation.
ARTICLE XI
PARKING
11.1 License to Use Parking Area. During the Term of this Lease, and
so long as Tenant is not in default of any provision of this Lease, Tenant
shall have a license to use up to twenty-five (25) nonreserved automobile
parking stalls in or about the parking structure and parking areas adjacent to
the Building at such additional charge for parking as Landlord shall reasonably
determine, not to exceed charges for comparable parking in comparable office
buildings in the Denver area. Landlord reserves the right to designate the
location of usable parking stalls within the parking structure or in the
parking areas, and to change such designation from time to time; provided,
however, at least ten (10) of the designated parking stalls shall be in covered
areas. Tenant agrees to obey such rules and regulations as Landlord may deem
necessary for the safety and efficiency of operation of the parking garage and
shall not use or occupy (nor permit its employees and invitees to occupy)
spaces designated for the use of others, including without limitation, visitor
parking. No bailment shall be created by use of the designated parking stalls.
Under no circumstances may Tenant assign, lease or transfer the rights to the
use of parking spaces granted herein.
ARTICLE XII
SURRENDER
12.1 Possession. Upon the expiration or other termination of the Term
and without further notice, Tenant shall immediately quit and surrender
possession of the Premises in like condition as that which Tenant received the
same and was required to maintain the Premises excepting only reasonable wear
and tear. Upon such surrender, all right, title and interest of Tenant in the
premises shall cease.
12.2 Trade Fixtures, Personal Property and Improvements. Subject to
Tenant's rights under Article 6.4, after the expiration or other termination of
the Term, all of Tenant's trade fixtures, personal property and improvements
remaining on the Premises shall be deemed conclusively to have been abandoned
by Tenant and may be appropriated, sold, destroyed or otherwise disposed of by
Landlord without notice or obligation to compensate Tenant or to account
therefor, and Tenant shall pay to Landlord on written demand all costs Incurred
by Landlord in connection therewith.
12.3 Merger. The voluntary or other surrender of this Lease by
Tenant or the cancellation of this Lease by mutual agreement of Tenant and
Landlord shall not work a merger, and shall at Landlord's
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option terminate all or any subleases or subtenancies or operate as an
assignment to Landlord of all or any subleases or subtenancies. Landlord's
option hereunder shall be exercised by notice to Tenant and all known
subtenants in the Premises or any part thereof.
12.4 Payments After Termination. No payments of money by Tenant to
Landlord after the expiration or other termination of the Term or after the
giving of any notice by Landlord to Tenant, shall reinstate, continue or extend
the Term or make ineffective any notice given to Tenant prior to the payment of
such money. After the service of notice or the commencement of a suit, or after
final judgment granting Landlord possession of the Premises, Landlord may
receive and collect any sums of Rent due under the Lease, and the payment
thereof shall not make ineffective any notice, or in any manner affect any
pending suit or any judgment theretofore obtained.
ARTICLE XIII
HOLDING OVER
13.1 Month-to-Month Tenancy. If, with Landlord's consent, Tenant
remains in possession of the Premises after the expiration or other termination
of the Term, Tenant shall be deemed to be occupying the Premises on a
month-to-month tenancy only, at a monthly rental equal to two and one-half (2
1/2) times the Base Rent payable for the last month of the Term as set forth
herein, and such month-to-month tenancy may be terminated by Landlord or Tenant
on the last day of any calendar month by delivery of at least ten (10) days'
advance notice of termination to the other. During such tenancy all terms and
conditions of this Lease except, the Term and any right of renewal, shall
remain in full force and effect and nothing contained in this Article shall be
construed to limit or impair any of Landlord's rights of re-entry or eviction
or constitute a waiver thereof.
ARTICLE XIV
RULES AND REGULATIONS
14.1 Purpose. The Rules and Regulations in Exhibit "D" have been
adopted by Landlord for the safety, benefit and convenience of all tenants and
other persons in the Building.
14.2 Observance. Tenant shall at all times comply with, and shall
cause its employees, agents, licensees and invitees to comply with, the Rules
and Regulations front time to time in effect.
14.3 Modification. Landlord may from time to time, for the purposes
set out in this Article, amend, delete from, or add to the Rules and
Regulations, provided that any such modification:
(a) shall not be repugnant to any other provision of this Lease;
(b) shall be reasonable and have general application to all
tenants in the Building; and
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(c) shall be effective only upon delivery of a copy thereof
to Tenant at the Premises or posting the same upon a conspicuous place within
the Building or property upon which the Building is situated.
14.4 Non-Compliance. Landlord shall use reasonable efforts to secure
compliance by all tenants and other persons with the rules and Regulations from
time to time in effect, but shall not be responsible to Tenant for failure of
any person to comply with such Rules and Regulations.
ARTICLE XV
EMINENT DOMAIN
15.1 Taking of Premises. If during the Term all of the Premises shall
be taken for any public or quasi-public use under any statute or by right of
eminent domain, or purchased under threat of such taking, this Lease shall
automatically terminate on the date on which the condemning authority takes
possession of the Premises (hereinafter called the "date of such taking").
15.2 Partial Taking of Building. If during the Term only part of
the Building is so taken or purchased as set out in Article 15.1. then:
(a) If in the reasonable opinion of Landlord, substantial
alteration or reconstruction of the Building is necessary or desirable as a
result thereof, whether or not the Premises are or may be affected, Landlord
shall have the right to terminate this Lease by giving the Tenant at least
thirty (30) days' written notice of such termination; and
(b) If more than one-third (1/3) of the number of square feet
in the Premises is included in such taking or purchase and such reduction in
square footage of the Premises renders the Premises unusable, in the reasonable
estimation of Landlord, for the permitted use hereunder as conducted by Tenant,
Landlord and Tenant shall each have the right to terminate this Lease by giving
the other at least thirty (30) days' written notice thereof.
If either party exercises its right to termination hereunder,
this Lease shall terminate on the date stated in the notice; provided, however,
that no termination pursuant to notice hereunder may occur later than sixty
(60) days after the date of such taking.
15.3 Surrender. On any such date of termination under Article 15.1 or
15. Tenant shall immediately surrender to Landlord the Premises and all
interests therein under this Lease. Landlord may re-enter and take possession
of the Premises and remove Tenant therefrom, and the Rent shall ▇▇▇▇▇ on the
date of termination, except that if the date of such taking differs from the
date of termination. Rent shall ▇▇▇▇▇ on the former date in respect of the
portion taken. After such termination and on notice from Landlord stating the
Rent then owing, Tenant shall forthwith pay Landlord such Rent.
15.4 Partial Taking of Premises. If any portion of the Premises
(but less than the whole thereof) is so taken, and no rights of termination
herein conferred are timely exercised, the Term of this
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Lease shall expire with respect to the portion so taken on the date of such
taking. In such event the Rent payable hereunder with respect to such portion
so taken shall ▇▇▇▇▇ on such date, and the Rent thereafter payable with respect
to the remainder not so taken shall be adjusted pro rata by Landlord in order
to account for the resulting reduction in the number of square feet in the
Premises.
15.5 Awards. Upon any such taking or purchase, Landlord shall be
entitled to receive and retain the entire award or consideration for the
affected lands and improvements, and Tenant shall not have nor advance any
claim against Landlord for the value of its property or its leasehold estate or
the unexpired Term of the Lease, or for costs of removal or relocation, or
business interruption expense or any other damages arising out of such taking
or purchase. Nothing herein shall give Landlord any interest in or preclude
Tenant from seeking and recovering on its own account from the condemning
authority any award or compensation attributable to the taking or purchase of
Tenant's improvements, chattels or trade fixtures, or the removal; or
relocation of its business and effects, or the interruption of its business. If
any award made or compensation paid to either party specifically includes an
award or amount for the other, the party first receiving the same shall
promptly account thereof to the other.
ARTICLE XVI
DAMAGE BY FIRE OR OTHER CASUALTY
16.1 Limited Damage to Premises. If all or part of the Premises are
rendered unleaseable by damage from fire or other casualty which, in the
reasonable opinion of Landlord, can be substantially repaired under applicable
laws and governmental regulations within 180 days from the date of such
casualty (employing normal construction methods without overtime or other
premiums), Landlord shall forthwith and to the extent Insurance proceeds are
made available therefor, repair such damage other than damage to improvements,
furniture, chattels or trade fixtures which do not belong to Landlord.
16.2 Major Damage to Premises. If all or part of the Premises are
rendered unleaseable by damage from fire or other casualty which, in the
reasonable opinion of Landlord cannot be substantially repaired under
applicable laws and governmental regulation within 180 days from the date of
such casualty (employing normal construction methods without overtime or other
premiums), Landlord shall notify Tenant in writing within thirty (30) days
following such casualty, then either Landlord or Tenant may elect to terminate
this Lease as of the date of such casualty by written notice delivered to the
other not more than ten (10) days after receipt of such written notice, failing
which Landlord shall forthwith and to the extent insurance proceeds are made
available therefor, repair such damage other than damage to improvements,
furniture, chattels or trade fixtures which do not belong to Landlord.
16.3 Abatement. If Landlord is required to repair damage to all or
part of the Premises under article 16.1 or 16.2, the Rent payable by Tenant
hereunder shall be proportionately reduced to the extent that the Premises are
thereby rendered unusable by Tenant in its business, from the date of such
casualty until five (5) days after completion by Landlord of the repairs to the
Premises (or part thereof rendered unleaseable) (or until Tenant again uses the
Premises (or part thereof rendered unusable) in its business, whichever first
occurs.
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16.4 Major Damage to Building. If all or a substantial part (whether
or not including the Premises) of the Building is rendered unleaseable by
damage from fire or other casualty to such material extent that in the
reasonable opinion of Landlord the Building must be totally or partially
demolished, whether or not to be reconstructed in whole or in part, Landlord
may elect to terminate this Lease as of the date of such casualty (or on the
date of notice if the Premises are unaffected by such casualty) by written
notice delivered to Tenant not more than sixty (60) days after the date of such
casualty.
16.5 Failure to Rebuild. In the event this Lease is not terminated
following damage from fire or other casualty, but Landlord fails to
substantially complete repairs or rebuilding within 270 days from the date of
the casualty, Tenant may elect to terminate this Lease by providing Landlord
with written notice of termination within thirty (30) days following said 270th
day.
16.6 Limitation on Landlord's Liability. Except as specifically
provided in this Article XVI, there shall be no reduction of Rent and Landlord
shall have no liability to Tenant by reason of any injury to or interference
with Tenant's business or property arising from fire or other casualty, however
caused, or from the making of any repairs resulting therefrom in or to any
portion of the Building or Premises. Notwithstanding anything contained herein,
Rent payable by Tenant hereunder shall not be abated if the damage is caused by
any act or omission of Tenant, its agents, servants, employees or any other
person entering upon the Premises under express or implied invitation or
Tenant.
ARTICLE XVII
TRANSFERS BY LANDLORD
17.1 Sales, Conveyance and Assignment. Nothing in this Lease shall
restrict the right of Landlord to sell, convey, assign or otherwise deal with
its interest in the Building subject only to the rights of Tenant under this
Lease.
17.2 Effect of Sale, Conveyance or Assignment. Provided that Tenant's
Security Deposit is transferred to Landlord's successor, a sale, conveyance or
assignment of the Landlord's interest in the Building shall operate to release
Landlord from liability from and after the effective date thereof upon all of
the covenants, terms and conditions of this Lease, express or implied, except
as such may relate to the period prior to such effective date, and Tenant shall
thereafter rook solely to Landlord's successor-in-interest in and to this
Lease. This Lease shall not be affected by any such sale, conveyance or
assignment, and Tenant shall attorn to Landlord's successor-in-interest
thereunder.
17.3 Subordination. This Lease is and shall be subject and subordinate
in all respects to any and all mortgages and deeds of trust now or hereafter
placed on the Building or the land on which it is situated, and to all
renewals, modifications, consolidations, replacements and extensions thereof.
17.4 Attornment. Subject to Article 17.5, if the interest of Landlord
is transferred to any person (herein called ("Purchaser") by reason of
foreclosure or other proceedings for enforcement of any mortgage or deed of
trust, or by delivery of a deed in lieu of such foreclosure or other
proceedings, Tenant shall immediately and automatically attorn to Purchaser.
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17.5 Nondisturbance. No attornment by Tenant to the holder of any
mortgage or deed of trust which would be subordinate to this Lease but for the
provisions of Article 17.3 shall be effective unless Purchaser delivers to
Tenant written undertaking that this Lease and Tenant's rights hereunder shall
continue undisturbed while Tenant is not in default, despite such enforcement
proceedings and transfer.
17.6 Effect to Attornment. Upon attornment under Article 17.4. this
Lease shall continue in full force and effect as a direct Lease between
Purchaser and Tenant, upon all of the same terms, conditions and covenants as
are set forth in this Lease except that, after such attornment, Purchaser shall
not be:
(a) Liable for any act of omission of any previous Landlord; or
(b) Subject to any offsets or defenses which Tenant might
have against any previous Landlord; or
(c) Bound by any prepayment by Tenant of more than one
(1) month's installment of Rent.
17.7 Execution of Instruments. The subordination and attornment
provisions of this Article XVII shall be self-operating and except as set out
in Article 17.5, no further instrument shall be required. Nevertheless Tenant,
on request by and without cost to Landlord or any successor in interest, shall
execute and deliver any and all reasonable instruments further evidencing such
subordination and (where applicable hereunder) attornment. Tenant hereby
irrevocably appoints Landlord as attorney-in-fact of Tenant to execute, deliver
and record any such documents and instruments in the name and on behalf of
Tenant if Tenant fails to do so.
ARTICLE XVIII
NOTICES, ACKNOWLEDGMENT, AUTHORITIES FOR ACTION
18.1 Notices. Any notice from any party to the other hereunder shall
be in writing and shall be deemed duly served if delivered personally to a
responsible employee of the party being served, or if mailed by registered or
certified mail, return receipt requested, addressed to Tenant at the Premises
(whether or not Tenant has departed from, vacated or abandoned the same) or to
Landlord at the place from time to time established for the payment of Rent.
Any notice shall be deemed to have been given at the time of personal delivery
or, if mailed, on the first to occur of the date of delivery set forth on the
return receipt, or the date delivery was refused by the addressee, or the date
such notice was returned by the post office due to failure of the addressee to
accept delivery. Either party shall have the right to designate by notice, in
the manner above set forth, a different address to which notices are to be
mailed.
18.2 Estoppel Certificates. Each of the parties hereto shall at any
time and from time to time upon not less than twenty (20) days prior notice
from the other execute, acknowledge and deliver a written statement certifying
that:
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(a) This Lease is in full force and effect, subject only to such
modifications (if any) as may be set out therein:
(b) Tenant is in possession of the Premises and paying
Rent as provided in this Lease, or if not, specifying any defects in possession
or defaults in the payment of Rent;
(c) The dates (if any) to which Rent is paid in advance; and
(d) That there are not, to such party's knowledge, any
uncured defaults on the part of the other party hereunder, or specifying such
defaults if any are claimed.
Any such statement may be relied upon by any prospective transferee or
encumbrancer of all or any portion of the Building, or any assignee of any such
persons. If Tenant fails to timely deliver such statement, Tenant shall be
deemed to have acknowledged that this Lease is in full force and effect,
without modification except as may be represented by Landlord, and that there
are no uncured defaults in Landlord's performance.
ARTICLE XIX
DEFAULT
19.1 Interest and Costs. Subject to the grace periods provided in
Section 3.5 hereof, Tenant shall pay to Landlord interest at a rate equal to
the less of one and one-half percent (1-1/2%) per month, or the maximum rate
permitted by applicable law, upon all Rent required to be paid hereunder from
and after the fifth day following the due date for payment thereof until the
same is fully paid and satisfied. Tenant shall indemnify Landlord against all
costs and charges (including legal fees) lawfully and reasonably incurred in
enforcing payment thereof, and in obtaining possession of the Premises after
default of Tenant or upon expiration or earlier termination of the Term of this
Lease, or in enforcing any covenant, proviso or agreement of Tenant herein
contained.
19.2 Right of Landlord to Perform Covenant. All covenants and
agreements to be performed by Tenant under any of the terms of this Lease shall
be performed by Tenant, at Tenant's sole cost and expense, and without any
abatement of Rent, if Tenant shall fail to perform any act on its part to be
performed hereunder, Landlord may (but shall not be obligated to) perform such
act without waiving or releasing Tenant from any of its obligations relative
thereto. All such paid or costs incurred by Landlord in so performing such acts
under this Article 19.2, together with interest thereon at the rate set out in
Article 19.1 from the date each such payment was made or each such cost
incurred by Landlord, shall be payable by Tenant to Landlord on demand.
19.3 Event of Default. At the option of Landlord, Tenant shall be in
default of this Lease and an event of default shall be deemed to have occurred,
if and whenever:
(a) Part or all of the Rent hereby reserved is not paid when due;
or
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(b) Any goods, chattels, security deposit or equipment of Tenant
is taken or eligible in execution or in attachment or if a writ of execution is
issued against Tenant; or
(c) Tenant becomes insolvent or commits an act of bankruptcy or
becomes bankrupt or takes the benefit of any statute that may be in force for
bankrupt or Insolvent debtors or becomes involved in voluntary or involuntary
winding-up proceedings; or
(d) If a receiver shall be appointed for the business, property,
affairs or revenues of Tenant; or
(e) Tenant fails to observe, perform and keep each and every one
of the covenants, agreements, provisions, stipulations and conditions
herein contained to be observed, performed and kept by Tenant (other than
payment of Rent) and persists in such failure after ten (10) days notice by
Landlord requiring that Tenant remedy, correct, desist or comply, or if any
such breach would reasonably require more than ten (10) days to rectify, unless
Tenant commences rectification within the 10-day notice period and cures the
subject failure within thirty (30) days from the date of notice; or
(f) Tenant abandons the Premises or any portion thereof; or
(g) Tenant does or permits anything to be done which creates a
lien upon the Premises, and fails to cause the lien to be removed
within thirty (30) days; or
(h) An assignment by Tenant for the benefit of creditors; or
(i) Any financial statement or any representation given to
Landlord by Tenant, or any assignee, sublessee, other transferee or
successor of Tenant or any guarantor of this Lease, proves to be materially
false or misleading; or
(j) Failure to pay the termination fee provided for in Section
21.14 after giving Landlord a termination notice.
19.4 Landlord's Remedies Upon Default. Upon the occurrence of any
event of default, Landlord shall have the option to pursue any one or more of
the following remedies without notice or demand whatsoever:
(a) Give Tenant written notice of intent to terminate this Lease
on the date of such notice or on any later date as may be specified herein,
whereupon tenant's right to possession of the Premises shall cease and this
Lease, except as to Tenant's liability, shall be terminated.
In the event this Lease is terminated in accordance with the
provisions of this paragraph, Tenant shall remain liable to Landlord for
damages in an amount equal to the Rent and other sums which would have been
owing by Tenant hereunder for the balance of the Term had this Lease not been
terminated, less the net proceeds, it any, of any reletting of the Premises by
Landlord subsequent to such termination, deducting all Landlord's expenses
including, without limitations, all repossession
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costs, brokerage commissions, legal expenses, attorneys' fees, expenses of
employees, alteration and repair costs and expenses of preparation for such
reletting. Landlord shall be entitled to collect such damages from Tenant
monthly on the days on which the Rent and other charges would have been payable
hereunder if this Lease had not been terminated. Alternatively, at the option
of the Landlord, in the event this Lease is so terminated, Landlord shall be
entitled to recover forthwith against 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 the aggregate of the Rent and all
other charges payable by Tenant hereunder that would have accrued for the
balance of the Term over the aggregate fair market rental value of the Premises
(such rental value to be computed on the basis of Tenant paying not only a Rent
to Landlord for the use and occupation of the Premises, but also such other
charges as are required to be paid by Tenant under the terms of this Lease) for
the balance of such Term, both discounted to present worth at the rate of four
percent (4%) per annum.
(b) Reenter and take possession of the Premises or any part
thereof, and repossess the same as of Landlord's former estate and expel
Tenant and those claiming through and under Tenant, and remove the effects of
both or either, using such force for such purposes as may be necessary, without
being liable for prosecution thereof, without being deemed guilty of any manner
of trespass, and without prejudice to any remedies for arrears of Rent or
proceeding breach of covenants or conditions. Should Landlord elect to reenter
as provided in this subparagraph, or should Landlord take possession pursuant
to legal proceedings or pursuant to any notice provided for by law, Landlord
from time to time, without terminating this Lease, relet the Premises or any
part thereof in Landlord's or Tenant's name, but for the account of Tenant, for
such Term or Terms (which may be greater or less than the period which would
otherwise have constituted the balance of Term of this Lease) and on such
conditions and upon other Terms (which may include concessions of free Rent and
alteration and repair of the Premises) as Landlord. In its sole discretion, may
determine, and Landlord may collect and receive the Rents therefor. Landlord
shall in no way be responsible or liable for any failure to relet the Premises,
or any part thereof, or for any failure to collect any Rent due upon such
retailing. No such reentry or taking possession of the Premises by Landlord
shall be construed as an election on Landlord's part 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
such reentry and/or retailing to exercise its right to terminate this Lease by
giving Tenant such written notice, in which event the Lease will terminate as
specified in said notice.
In the event that Landlord does not elect to terminate this
Lease but takes possession as provided for in this subparagraph, Tenant shall
pay to Landlord (i) the Rent and other charges as herein provided which would
be payable hereunder if such repossession had not occurred, less (ii) the net
proceeds, if any, of any retailing of the Premises after deducting all
Landlord's reasonable expenses including, without limitation, all repossession
costs, brokerage commissions, legal expenses, attorneys' fees, expenses of
employees, alteration and repair costs and expense of preparation for such
retailing. Tenant shall pay such Rent and other sums to Landlord monthly on the
days on which the Rent would have been payable hereunder if possession had not
been retaken.
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19.5 Waiver of Exemption and Redemption. Notwithstanding anything
contained in any statute now or hereafter in force limiting or abrogating the
right of distress, none of Tenant's goods, chattels or trade fixtures on the
Premises at any time during the continuance of the Term shall be exempt from
levy by distress for Rent in arrears, and upon any claim being made for such
exemption by Tenant or on distress being made by Landlord this Agreement may be
pleaded as an estoppel against Tenant in any action brought to test the right
to the levying upon any such goods as are named as exempted in any such
statute, Tenant hereby waiving all and every benefit that could or might have
accrued to Tenant under and by virtue of any such statute but for this Lease.
Tenant hereby expressly waives any and all rights or redemption granted by or
under any present or future laws in the event of Tenant being evicted or
dispossessed for any cause, or in the event of Landlord obtaining possession of
the Premises, by reason of the violation by Tenant of any of the terms or
conditions of this Lease or otherwise.
19.6 Remedies Cumulative. No reference to nor exercise of any,
specific right or remedy by Landlord shall prejudice or preclude Landlord from
exercising or invoking any other remedy in respect thereof, whether allowed at
law or in equity or expressly provided for herein. No such remedy shall be
exclusive or dependent upon any other such remedy, but Landlord may from time
to time exercise any one or more of such remedies independently or in
combination.
19.7 DELETED.
ARTICLE XX
DEFAULT BY LANDLORD; LIMITATION OF LIABILITY
20.1 Landlord Default. Landlord shall not be deemed to be in default
hereunder unless obligations required of Landlord hereunder are not performed
by Landlord, or by any beneficiary under any deed of trust, mortgagee, ground
lessor or other lienholder with rights in all or any portion of the Building,
within thirty (30) days after written notice thereof by Tenant to Landlord and
to such other parties whose names and addresses are furnished to Tenant in
writing, which notice specifies that there has been a failure to perform such
obligations; provided, however, that if the nature of such obligations is such
that more than thirty (30) days are reasonably required for their cure,
Landlord shall not be deemed to be in default hereunder if Landlord or any of
such other parties commences such cure within such thirty (30) day period and
thereafter diligently pursues such cure to completion.
20.2 Satisfaction of Judgment. If Landlord is in default hereunder,
and, as a consequence thereof, Tenant wins a judgment against Landlord, such
judgment may be satisfied only out of the right, title and interest of Landlord
in the Building and out of the rent or other revenue receivable by Landlord
from the Building, or out of the proceeds receivable by Landlord from the sale
or other disposition of all or any portion of Landlord's right, title and
interest in the Building. Neither Landlord nor any of Landlord's directors,
employees, agents or representatives shall be personally liable for any
deficiency or otherwise.
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ARTICLE XXI
MISCELLANEOUS
21.1 Relationship of Parties. Nothing contained in this Lease shall
create any relationship between the parties hereto other than that of landlord
and tenant, and it is acknowledged and agreed that Landlord does not in any way
or for any purpose become a partner of Tenant in the conduct of its business,
or a joint venturer or a member of a joint or common enterprise with Tenant.
21.2 Consent Not Unreasonably Withheld. Except as otherwise
specifically provided, whenever consent or approval of Landlord or Tenant is
required under the terms of this Lease, such consent or approval shall not be
unreasonably withheld or delayed. Tenant's sole remedy if Landlord unreasonably
withholds or delays consent or approval shall be an action for specific
performance, and Landlord shall not be liable for damages.
21.3 Name of Building. Landlord shall have the right, after thirty
(30) days notice to Tenant, to designate or change the name or number of the
Building during the Term without liability to Tenant.
21.4 Applicable Law and Construction. This Lease shall be governed by
and construed under the laws of the State of Colorado and its provisions shall
be construed as a whole according to their common meaning and not strictly for
or against Landlord or Tenant. The words Landlord and Tenant shall include the
plural as well as the singular. If this Lease is executed by more than one
Tenant, Tenant's obligations hereunder shall be joint and several obligations
of such executing Tenants. Time is of the essence of this Lease and each of its
provisions. The captions of the Articles are included for convenience only, and
shall have no effect upon the construction or interpretation of this Lease.
21.5 Waiver of Conflicting Laws. To the maximum extent permitted by
law, Tenant hereby waives all provisions of, and protection under, any
decisions, statutes, rules and regulations or other laws of the State of
Colorado to the extent same or inconsistent with the terms and provisions of
this Lease, including without limitation, all rights and remedies of Landlord
of Article XIX hereof.
21.6 Entire Agreement. This Lease, together with its Exhibits and such
Rules and regulations presently in effect, comprise the entire agreement
between the parties hereto with respect to the subject matter of this Lease.
Tenant acknowledges and agrees that it has not relied upon any statement,
representation, agreement or warranty except such as are set out in this Lease.
21.7 Amendment or Modification. Unless otherwise specifically provided
in this Lease, no amendment, modification, or supplement to this Lease shall be
valid or binding unless set out in writing and executed by the parties hereto
in the same formality and manner as the execution of this Lease.
21.8 Construed Covenants and Severability. All of the provisions of
this Lease are to be construed as independent covenants and agreements as
though the words importing such independent covenants and agreements were used
in each separate Article hereof. Should any provision of this Lease be or
become invalid, void, illegal or not enforceable, it shall be considered
separate and severable from
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the Lease and the remaining provisions shall remain in force and be binding
upon the parties hereto as though such provision had not been included.
21.9 No Implied Surrender or Waiver. No provisions of this Lease shall
be deemed to have been waived by Landlord or Tenant unless such waiver is in
writing signed by Landlord or Tenant. Landlord's or Tenant's waiver of a breach
of any term or condition of this Lease shall not prevent a subsequent act,
which would have originally constituted a breach, from having all the force and
effect of any original breach. Landlord's receipt of Rent with knowledge of a
breach by Tenant or any term or condition of this Lease shall not be deemed a
waiver of such breach even in the absence of protest or reservation of rights.
Landlord's failure to enforce against Tenant or any other tenant in the
Building of any of the Rules and Regulations made hereunder shall not be deemed
a waiver of such Rules and Regulations. No act or thing done by Landlord, its
agents or employees during the Term shall be deemed an acceptance of a
surrender of the Premises, and no agreement to accept a surrender of the
Premises shall be valid, unless in writing signed by Landlord. The delivery of
keys to any of Landlord's agents or employees shall not operate as a
termination of this Lease or a surrender of the Premises. No payment by Tenant,
or receipt by Landlord, of a lesser amount than the Rent due hereunder shall be
deemed to be other than on account of the earliest stipulated Rent, nor shall
any endorsement, or statement on any check or any letter accompanying any
check, or payment as Rent, be deemed an accord and satisfaction, and Landlord
may accept such check or payment without prejudice to Landlord's right to
recover the balance of such Rent or pursue any other remedy available to
Landlord.
21.10 Light and Air. Tenant covenants and agrees that no diminution of
light, air or view by any structure which may hereafter be erected (whether or
not by Landlord) shall entitle Tenant to any reduction of rent under this
Lease, result in any liability of Landlord to Tenant, or in any other way
affect this Lease or Tenant's obligations hereunder.
21.11 Relocation Right. Landlord may substitute for the Premises other
space in the Building equal or greater in area to the Premises, suitable for
Tenant's use and similar configuration, and this Lease shall be deemed modified
so as to eliminate the Premises hereby leased and to substitute therefore such
other premises; provided, that Tenant's Base Rent and share of Operating Costs
shall not be increased. The costs of preparing such premises for Tenant's use
shall be at Landlord's expense, and further, any of Tenant's reasonable costs
of moving shall be paid by Landlord. Furthermore, such substituted premises
shall be ready for occupancy within three (3) business days of the time Tenant
is required to move. In such event, in all other respects this Lease shall
remain in full force and effect according to its terms.
21.12 Authority. If Tenant is a corporation, trust or partnership,
each individual executing this Lease on behalf of Tenant represents and
warrants that he or she is duly authorized to so execute and deliver this
Lease. If Tenant is a corporation, trust or partnership, it shall, within ten
(10) days after execution of this Lease, deliver to Landlord satisfactory
evidence of such authority. If Tenant is a corporation, it shall, upon demand
by Landlord, also deliver to Landlord satisfactory evidence of (a) good
standing in Tenant's state of incorporation, and (b) qualification to do
business in the State of Colorado.
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21.13 Successors Bound. Except as otherwise specifically provided,
the covenants, terms, and conditions contained in this Lease shall apply to and
bind the heirs, successors, executors, administrators and assigns of the
parties hereto.
21.14 Tenant's Early Termination Right. At Tenant's option and so long
as Tenant is not in default under any terms of the Lease, Tenant shall have a
one time right to terminate this Lease effective as of December 31, 1997. In
order to exercise this right to terminate, Tenant shall deliver written notice
of the exercise to Landlord on or before July 1, 1997, and as consideration for
this right to terminate, Tenant shall pay Landlord on or before November 30,
1997 a termination fee equal to three (3) months rent, plus Five Thousand Six
Hundred Sixty-Five and 50/100ths ($5,665.50) representing the difference
between the Base Rent paid for the first three (3) years of the Lease and the
net effective rate for the term, plus all of Landlord's unamortized costs of
the tenancy including, but not limited to, tenant improvements; leasing
commissions and attorney's fees. The costs shall be amortized on a straight
line basis over the Term of the Lease with interest at ten percent (10%) per
annum. If Tenant delivers the termination notice and fails to pay the
termination fee, Tenant shall be in default of the Lease and Landlord shall be
entitled to all the remedies set forth in Article 19.
21.15 Option to Renew. Landlord hereby grants to Tenant one (1) three
(3) year option to renew this Lease at the then current market rate for
comparable office space in the southeast suburban Denver, Colorado market area.
The option to renew shall be exercisable by Tenant only if Tenant is not in
default of any material provision under this Lease or in default of any
monetary provision of this Lease. In order to exercise the Option to Renew,
Tenant must give written notice to Landlord of its intent to exercise the
option at least six (6) months prior to the expiration of the Term. If Tenant
fails to provide such written notice this option shall laps and thereafter be
null and void.
21.16 Right of First Refusal. At all times during the Term of this
Lease (providing that Tenant is not in default of any material provision of
this Lease or in default of any monetary provision of this Lease), Landlord
shall grant to Tenant (subject to any prior rights or existing tenancies) a
First Right of Refusal on all space on the second floor, south wing of the
Building, as designated on the floor plan attached hereto as Exhibit "A". So
long as Tenant is not in default of any material or monetary provision of this
Lease, Tenant may exercise its First Right of Refusal on all of such space by
giving Landlord written notice within five (5) business days of Tenant's
receipt of notice from Landlord that such space is available. The parties agree
that the lease rate for such expansion space shall be the then current market
rate for comparable space in the southeast suburban Denver, Colorado market
area. Except for Base Rent, the terms of the Lease for the right of first
refusal space shall be substantially the same as those provided in this Lease.
In the event Tenant fails to exercise its Right of First Refusal or the parties
cannot agree on the terms thereof, this Right of First Refusal shall lapse and
thereafter be of no further force and effect.
21.17 Guaranty. As additional consideration and as a requirement of
Landlord executing this Lease, the Tenant's owner has agreed to deliver to
Landlord the Guaranty attached hereto as Exhibit "E". If after the expiration
of sixty (60) months from the Commencement Date the Tenant has not been in
default of any provisions of the Lease and the Tenant's financial condition is
determined to be creditworthy by the Landlord, the Landlord will consider
returning the Guaranty to the shareholders and
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not requiring it as a condition to the Lease; provided, however, that such
decision shall be made in the sole and absolute discretion of Landlord.
IN WITNESS WHEREOF, Landlord and Tenant have properly executed this
Lease as of the day of 1994.
LANDLORD: TENANT:
STATE OF CALIFORNIA PUBLIC NEON HEALTHCARE SYSTEM, INC.,
EMPLOYEES' RETIREMENT SYSTEM an Illinois corporation
a unit of the State and Consumer
Services Agency of the State of By:
---------------------------------
Date
By:
-----------------------------------
Date Name:
-------------------------------
Name: Title:
------------------------------ ------------------------------
Title:
-----------------------------
BY:
--------------------------------
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STATE OF CALIFORNIA )
)ss.
COUNTY OF SACRAMENTO )
On __________, 199__, before me, the undersigned, a Notary Public in
and for said State, personally appeared personally known to be (or proved to me
on the basis of satisfactory evidence) to be of agent for the State of
California Public Employees' Retirement System, a unit of the State and
Consumer Services Agency of the State of California, and acknowledged to be
that such State of California Public Employees' Retirement System executed the
same.
Witness my hand and official seal:
My commission expires:______________________.
[S E A L]
------------------------------------
Notary Public
STATE OF COLORADO )
)ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this ______ day of
199__ by ____________________, as ___________________ of NEON HEALTHCARE SYSTEM,
INC.
My commission expires:_______________________.
[S E A L]
------------------------------------
Notary Public
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EXHIBIT "A"
FLOOR PLAN OF PREMISES
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EXHIBIT "B"
LEGAL DESCRIPTION OF BUILDING
That certain land situated in ARAPAHOE County, Colorado and described as
follows:
THE NORTH 4/5THS OF TRACT 8, SUBDIVISION OF SECTION ▇▇, ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇
67 WEST, COUNTY OF ARAPAHOE, STATE OF COLORADO, EXCEPT PORTIONS CONVEYED TO THE
CITY OF GREENWOOD VILLAGE IN DEED RECORDED APRIL 24, 1981 IN BOOK 2402 AT PAGE
436, AND IN DEED RECORDED OCTOBER 29, 1981 IN BOOK 3520 AT PAGE 521.
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EXHIBIT "C"
AGREEMENT FOR COMPLETION OF PREMISES
Tenant Finish Allowance. Landlord shall provide Tenant a tenant finish
allowance of Nine and No/100ths Dollars ($9.00) per rentable square foot of the
Premises (the "tenant improvement allowance") to be applied solely for the
purposes of space plans, designs, construction drawings, demolition and tenant
improvements in accordance with the space plan dated September 20, 1994 which
is attached hereto as Exhibit 1 (hereinafter collectively referred to as
"Tenant Improvements"). In the event the cost of Tenant Improvements as set
forth in the space plan exceeds the tenant improvement allowance or Tenant
modifies the space plans and the modifications result in the cost exceeding the
tenant improvement allowance, Tenant shall pay Landlord for such excess within
ten (10) days of the receipt of an invoice from Landlord for said excess. In
the event Landlord is aware prior to the commencement of construction of the
Tenant Improvements, that the cost of Tenant Improvements will exceed the
tenant improvement allowance, Landlord may request that Tenant pay Landlord the
estimated amount of said excess prior to the commencement of construction.
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EXHIBIT 1 TO
AGREEMENT FOR COMPLETION OF PREMISES
SPACE PLAN
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EXHIBIT "D"
RULES AND REGULATIONS
1. Security. Landlord may from time to time adopt appropriate systems
and procedures for the security or safety of the Building, any persons
occupying, using or entering the same, or any equipment, finishing or contents
thereof, and Tenant shall comply with Landlord's reasonable requirements
relative hereto.
2. Locks. Landlord may from time to time install and change locking
mechanisms on entrances to the Building, common areas thereof, and the
Premises, and (unless 24 hour security is provided by the Building) shall
provide to Tenant a reasonable number of keys and replacements therefor to meet
the bona fide requirements of Tenant. In these rules "keys" include any device
serving the same purpose. Tenant shall not add to or change existing locking
mechanisms on any door in or to the Premises without Landlord's prior written
consent. If without Landlord's consent, Tenant installs lock(s) incompatible
with the Building master locking system:
(a) Landlord, without abatement of Rent, shall be relieved of
any obligation under the Lease to provide any service to the affected areas
which requires access thereto;
(b) Tenant shall indemnify Landlord against any expense as a result
of forced entry thereto which may be required in an emergency; and
(c) Tenant shall at the end of the Term and at Landlord's request
remove such lock(s) at Tenant's expense.
3. Return of Keys. At the end of the Term, Tenant shall promptly
return to Landlord all keys for the Building and Premises which are in
possession of Tenant.
4. Windows. Tenant shall observe Landlord's rules with respect to
maintaining uniform drapes at all windows in the Premises so that the Building
presents a uniform exterior appearance, and shall not install any window
shades, screens, drapes, covers or other materials on or at any window in the
Premises without Landlord's prior written consent.
5. Repair, Maintenance, Alterations and Improvements. Tenant shall
carry out Tenant's repair, maintenance, alterations and improvements in the
Premises only during times agreed to in advance by Landlord and in a manner
which will not interfere with the rights of other tenants in the Building.
6. Water Fixtures. Tenant shall not use water fixtures for any purpose
for which they are not intended, nor shall water be wasted by tampering with
such fixtures. Any cost or damage resulting form such misuse by Tenant shall be
paid for by Tenant.
7. Personal Use of Premises. The Premises shall not be used or
permitted to be used for residential, lodging or sleeping purposes or for the
storage of personal effects or property not required for business purposes.
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8. Heavy Articles. Tenant shall not place in or move about the
Premises without Landlord's prior written consent any safe or other heavy
article which in Landlord's reasonable opinion may damage the Building, and
Landlord, may designate the location of any heavy articles in the Premises.
9. Bicycles, Animals. Tenant shall not bring any animals or birds into
the Building, and shall not permit bicycles or other vehicles inside or on the
sidewalks outside the Building except in areas designated from time to time by
Landlord for such purposes.
10. Deliveries. Tenant shall ensure that deliveries to Tenant of
materials and supplies to the Premises are made through such entrances,
elevators and corridors and at such times as may from time to time be
designated by Landlord, and shall promptly pay or cause to be paid to Landlord
the cost of repairing any damage in the Building caused by any person making
such deliveries to Tenant; provided, however, that during Tenant's move into
the Premises, Tenant shall not be charged any additional amounts for the use of
elevators or other services of the Building.
11. Furniture and Equipment. Tenant shall ensure that furniture and
equipment being moved into or out of the Premises is moved through such
entrances, elevators and corridors and at such times as may from time to time
be designated by Landlord, and by movers or a moving company approved by
Landlord, and shall promptly pay or cause to be paid to Landlord the cost of
repairing any damage in the Building caused by Tenant's movers.
12. Solicitations. Landlord reserves the right to restrict or prohibit
canvassing, soliciting or peddling in the Building.
13. Food and Beverages. Only persons approved from time to time by
Landlord may prepare, solicit orders for, sell, serve or distribute foods or
beverages in the Building, or use the elevators, corridors or commons areas for
any such purposes. Except with Landlord's prior written consent and in
accordance with arrangements approved by Landlord, Tenant shall not permit on
the Premises the use of equipment for dispensing food or beverages or for the
preparation, solicitation of orders for, sale, serving, or distribution of food
or beverages. Microwave ovens and refrigerators are permissible in Tenant's
kitchen.
14. Refuse. Tenant shall place all refuse in proper receptacles
provided by Tenant at its expense in the Premises or in receptacles (if any)
provided by Landlord for the Building, and shall keep sidewalks and driveways
outside the Building, and lobbies, corridors, stairwells, ducts and shafts of
the Building, free of all refuse.
15. Obstructions. Tenant shall not obstruct or place anything in or on
the sidewalks or driveways outside the Building or in the lobbies, corridors,
stairwells or other common areas of the Building, or use such locations for any
purpose except access to and exit from the Premises without Landlord's prior
written consent. Tenant may remove at Tenant's expense any such obstruction or
thing (unauthorized by Landlord) without notice or obligation to Tenant.
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16. Dangerous or Immoral Activities. Tenant shall not make any use of
the Premises which involves the danger or injury to any person, nor shall the
same be used for any immoral purpose.
17. Proper Conduct. Tenant shall not conduct itself in any manner
which is inconsistent with the character of the Building as a first quality
building or which will unreasonably impair the comfort and convenience of other
tenants in the Building.
18. Employees, Agents and Invitees. In these Rules and Regulations,
"Tenant" includes the employees, agents, invitees and licensees of Tenant and
others permitted by Tenant to use or occupy the Premises.
19. Normal Business Hours. Normal business hours for the Building and
the Premises shall be from 7:00 a.m. until 6:00 p.m., Monday through Friday,
and from 8:00 a.m. until 3:00 p.m. on Saturday, excepting in any event, legal
holidays. Tenant shall have twenty-four (24) hour access to the Building and
its Premises, subject to the Landlord's Rules and Regulations regarding
Building security and card key access.
20. Consent Required. Whenever the prior written consent or Landlord
is required, the same shall not be unreasonably withheld.
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EXHIBIT "E"
GUARANTY
THIS GUARANTY is made and delivered as of __________, 199__ ,
by ▇▇▇▇▇▇ ▇. ▇▇▇▇, individually (the "Guarantor"), to and for the benefit of
THE STATE OF CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM (the "Landlord"),
and is made with reference to the following:
WHEREAS, Landlord has agreed, pursuant to a lease dated , 199 , to
lease approximately 3,777 square feet of office space to Neon Healthcare and
Systems, Inc., an Illinois corporation, (the "Lease") at the Solarium Building
located at the Solarium Building, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇ (the "Building"):
WHEREAS, the Guarantor is the sole proprietor of Neon Healthcare and
Systems, Inc.; and
WHEREAS, as additional consideration and a condition for Landlord's
agreement to enter into the Lease with Neon Healthcare and Systems, Inc. and
contemporaneously with the execution of the Lease, Guarantor has agreed to
execute this Guaranty;
NOW, THEREFORE, for value received, the receipt and sufficiency of
which is hereby acknowledged, Guarantor hereby agrees as follows;
(a) Guarantor hereby unconditionally guarantees payment of all amounts
due under the Lease, including but not limited to, Base Rent and Operating
Expenses and the performance by Neon Healthcare and Systems, Inc. of its
obligations under the Lease.
(b) Guarantor hereby unconditionally agrees to pay any and all
reasonable expenses and attorneys' fees incurred by the Landlord in enforcing
any rights hereunder. The obligation of the Guarantor hereunder is direct,
immediate, absolute, and continuing until such time as all amounts set forth in
this Guaranty or under the Lease have been paid.
(c) Guarantor hereby expressly waives notice of acceptance of this
Guaranty, diligence, presentment, demand, notice of nonpayment, protest and
notice of protest, pursuit of any right or remedy against Neon Healthcare and
Systems, Inc. or others, or pursuit of any security, and any and all suretyship
defenses and defenses in the nature thereof and, without notice, consents to or
waives, as the case may be, any and all modifications of the Lease or the terms
of any documents or instruments securing the same, and any and all obligations
otherwise imposed upon the Landlord by suretyship principles.
(d) The liability of Guarantor hereunder shall not be affected or
impaired by any failure, neglect or omission on the Landlord's part to realize
upon any collateral or security for the Lease, nor by any act or failure to act
whatsoever (except payment) which, but for this provision, might or could in
law or equity act to release or reduce the Guarantor's liabilities hereunder.
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(e) Guarantor agrees that possession of this Guaranty by the Landlord
shall be conclusive evidence of the delivery hereof by Guarantor.
(f) Guarantor shall not be subrogated to Landlord's rights with
respect to payment of any indebtedness under the Lease, paid by Guarantor
pursuant to this Guaranty, unless and until the Guaranty has been paid in full.
(g) The liability of Guarantor hereunder shall be reinstated and the
rights of the Landlord shall continue if and to the extent that any payment by
or on behalf of Neon Healthcare and Systems, Inc. is legally required to be
forfeited, rescinded or otherwise restored by the Landlord as a result of any
proceeding in bankruptcy or reorganization, all as though such amount had not
been paid. The determination as to whether any such payment is legally required
to be forfeited, rescinded or restored shall be made by the Landlord, acting in
good faith and shall not require a determination of a court.
(h) All notices and other communications provided for hereunder shall
be in writing (including telegraphic communication) and, if to the Guarantor,
mailed registered or certified mail, return receipt requested, telegraphed or
delivered to Guarantor at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and if to the Landlord, mailed, telegraphed or delivered to it
at Alex. ▇▇▇▇▇ Kleinwort ▇▇▇▇▇▇ Realty Advisors Corp., Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or, as to
each party, at such address as shall be designated by such party in a written
notice to each other party complying as to delivery with the terms of this
Section. All such notices and communications shall, when mailed or telegraphed,
respectively, be effective when deposited in the mails or delivered to the
telegraph company, respectively, addressed as aforesaid.
(i) This Guaranty shall be construed and interpreted in accordance with
and governed by the laws of the State of Colorado.
(j) This Guaranty shall be binding upon the Guarantor, the Guarantor's
successors and assigns, and it shall inure to the benefit of the Landlord and
its successors and assigns.
(k) Time is of the essence of this Guaranty.
(l) The rights and remedies of the Landlord, as contained in this
Guaranty, are not the exclusive rights and remedies available to the Landlord,
but are in addition to all other rights or remedies available to it at law or
in equity. The Landlord's decision to pursue any right or remedy hereunder
shall not be construed as an election of remedies. Guarantor agrees to pay all
reasonable attorneys' fees in any legal actions related to this Agreement.
(m) This Guaranty may be amended, supplemented or interpreted at any
time only by a written instrument duly executed by both parties.
(n) Any provision hereunder to the contrary notwithstanding, if any
provision of this Guaranty shall be determined to be unlawful or invalid under
the laws of any state, territory, county or other
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political subdivision, and would thereby invalidate this Guaranty therein, this
Guaranty shall be construed as though it did not contain such provision.
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THIS GUARANTY has been executed as of the date and year first above
written.
GUARANTOR:
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, individually
Date:
--------------------------------
STATE OF )
)ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this _____ day of
__________, 199 __, by ▇▇▇▇▇▇ ▇. ▇▇▇▇ as Guarantor.
Witness my hand and official seal.
[S E A L]
-------------------------------------
Notary Public
My commission expires:_____________________
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COMMENCEMENT DATE AGREEMENT
This Commencement Date Agreement is entered into this 23rd day of
January, 1995 by STATE OF CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM, an
agency of the State of California ("Landlord") and NEON HEALTHCARE AND SYSTEMS,
INC. ("Tenant"), pursuant to the provisions of that certain Lease Agreement
(the "Lease") dated October 12, 1994, by and between Landlord and Tenant,
covering certain space in the building known as The Solarium located at ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. All terms used herein with their
initial letter capitalized shall have the meaning assigned to such terms in the
lease.
W I T N E S S E T H :
1. The Building, the Premises, the Parking Garage, and all other
improvements required to be constructed and furnished by Landlord in accordance
with the terms of the Lease have been satisfactorily completed by Landlord and
accepted by the Tenant.
2. The Premises has been delivered to, and accepted by the Tenant,
per the Solarium Building Office Lease dated October 12, 1994.
3. The Commencement Date of the Lease is the 23rd day of January,
1995 and the Expiration Date will be the 31st day of December, 1999.
4. The Net Rentable Area of the Building is agreed to be 165,064
square feet. The Premises is Suite 230 and consists of 3,777 square feet of the
Net Rentable Area on the 2nd floor of the South building.
5. The Base Rent is $45,324.00 per annum, payable in monthly
installments of $3,777.00 and Tenant's estimated shares of Operating Costs for
the first year is $-0- payable in monthly installments of $-0-. Tenant is
entitled to 0 months of fee rent; therefore, Tenant's obligation to pay rent
will commence on the 23rd day of January, 1995.
6. Remittance of the foregoing payments shall be made on the
first day of each month in accordance with the terms and conditions of the
Lease at the following address:
PERS/ABKB/SOLARIUM BUILDING
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
50
IN WITNESS WHEREOF, this instrument has been fully executed by
Landlord as of the date first written above.
LANDLORD TENANT
STATE OF CALIFORNIA PUBLIC NEON HEALTHCARE AND SYSTEMS, INC.
RETIREMENT SYSTEM ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By: LASALLE ADVISORS LIMITED
PARTNERSHIP
Its: Advisor and Duly Authorized Agent By:
------------------------------
By: Its:
--------------------------------------- -----------------------------
Its:
--------------------------------------
By:
---------------------------------------
Its:
--------------------------------------
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