OFFICE LEASE THE POINT AT INVERNESS Best Property Fund, L.P., a Delaware limited partnership and Premier Data Services, Inc. a Delaware corporation Date: February 19, 2003
Exhibit
10.1
THE
POINT AT INVERNESS
Best
Property Fund, L.P.,
a
Delaware limited partnership
"Landlord"
and
Premier
Data Services, Inc.
a
Delaware corporation
"Tenant"
Date:
February 19, 2003
LIST
OF EXHIBITS
A Floor
Plan, Premises
B Work
Letter
C Rules
and Regulations
D Lease
Commencement Rider
E Form
of Tenant Estoppel Certificate
F Schedule
of Building Services
G Definition
of Operating Expenses
PART I BASIC LEASE TERM SHEET
1. Building. An
office building containing approximately 186,945 feet of rentable area, located
on the Land, and ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇ commonly known as The Point at
Inverness.
2. Project.
The Building and the land (the "Land") located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇.
3. Premises.
Approximately 8,204 square feet of rentable area located on the second floor of
the Building and known as Suite No. 250 as outlined on the floor plan
attached hereto as Exhibit A.
4. Commencement
Date. The earlier of June 1, 2003, or upon the "Substantial Completion" of the
Landlord's Work described in Exhibit B. Substantial Completion shall have the
meaning set forth in Section 3.2. Notwithstanding the Commencement Date, Tenant
shall be permitted to access the Premises two (2) weeks prior to the anticipated
Commencement Date for purposes of installing furniture and cabling, provided,
however, such early access shall not interfere with Landlord's Work described in
Exhibit B nor shall such early access trigger the Tenant's obligations to pay
Monthly Rent. During the period of early access to the Premises, all other terms
of this Lease, including, but not limited to, the obligations to carry the
insurance required in the Lease shall be in effect during such period. Tenant
shall indemnify and hold Landlord harmless from any liability as a
result of Tenant's early access to the Premises.
5. Rent
Commencement Date. Ninety (90) days after the Commencement Date (currently
projected to be September 1,2003).
6. Lease
Term. Sixty (60) months.
7. Scheduled
Termination Date. Sixty (60) months from the Commencement Date (currently
projected to be May 31, 2008).
8. Base
Rent. Approximately $426,799.45 total aggregate base rent, payable in monthly
installments ("Monthly Rent") as follows:
|
Date
|
Annual
Rent Rate
|
Monthly
Rent
|
Annual
Rent Per
Rentable
Square Foot
|
|
**6-1-03
to 8-31-03
|
$0
|
$0
|
$0
|
|
**9-1-03
to 2-15-04
|
$77,609.84
|
$6,467.49**
|
$9.46
(estimate of 2003
Operating
Expenses) **
|
|
2-16-04
to 5-31-08
|
$86,142.00
|
$7,178.50
|
$10.50
|
** (ESTIMATED,
SUBJECT TO ADJUSTMENT BASED ON PROVISIONS OF ARTICLE 2 HEREUNDER). DATES
REFERENCED ABOVE ARE SUBJECT TO ADJUSTMENT PURSUANT TO THE PROVISIONS OF SECTION
3.2 BELOW.
9. Tenant's
Proportionate Share. 4.3 884%.
10. Operating
Expenses. This is a modified triple net lease with a Base Year Expense Stop of
2003. See Article 2. All rent including Operating Expenses is abated for the
first three (3) months after the Commencement Date. For the period beginning on
the 91" day after the Commencement Date through a date which is 165 days later,
Tenant shall only be obligated to pay the Estimated Payments defined in Section
2.6 (currently estimated to be $9.46 per rentable square foot.) Beginning on the
166' day after the Commencement Date, Tenant shall be obligated to pay $10.50
per rentable square foot plus the Estimated Payments, as adjusted time to time
pursuant to Section 2.6. This Lease also includes a Base Year Expense Stop using
the calendar year 2003. By way of example, if the actual Operating Expenses for
the calendar 2003 are $9.46 per rentable square foot as currently estimated,
then for the remaining Lease Term, Tenant will pay a minimum of $9.46 per
rentable square foot plus any increase in the Operating Expenses for any
particular Lease year.
11. Initial
Improvement Allowance. None.
12. Party
Constructing Initial Improvements. Landlord shall cause the Landlord's Work to
be constructed in accordance with the Work Letter attached to this Lease as
Exhibit B.
13. Parking
Spaces. Thirty (30) unreserved spaces in the Building's surface parking lot free
of charge and five (5) reserved spaces in the Building's covered parking area at
a rate of Sixty Dollars ($60.00) per month per each garage space, which may be
increased by Landlord annually in accordance with the prevailing market rates
for covered parking.
14. Security
Deposit. $7,178.50.
15. Operating
Expense Base. 2003 Base Year
16. Normal
Building Hours. a.m. to p.m. Monday through Friday, and a.m. to 1:00 on
Saturday, excluding the holidays listed in Section 4.
17. Tenant's
Broker. CB ▇▇▇▇▇▇▇ ▇▇▇▇▇.
18. Landlord's
Broker. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Company.
19. Tenant's
Address for Notices. ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, prior to the Commencement Date; and ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ following the Commencement Date.
20. Tenant's
Telecopier Number for Notices. (▇▇▇) ▇▇▇-▇▇▇▇.
The foregoing definitions are provided
for convenience only; in the event of any inconsistency between the foregoing
definitions and any other provisions of this Lease, the other provisions of this
Lease shall control.
THIS BASIC LEASE TERM SHEET, together
with the General Provisions incorporated as Part II and any addendums and
Exhibits, all constitute the entire lease between Tenant and Landlord for the
Premises, made and entered into as of the Lease Date.
/s/
RS /s/
LG
______________________ _____________________
TENANT’S
INITIALS LANDLORD’S
INITIALS
PART
II
GENERAL
PROVISIONS
THIS LEASE is made and entered into
this 17TH day of
March, 2003, by and between Best Property Fund, L.P., a Delaware limited
partnership ("Landlord"), and Premier Data Services, Inc., a Delaware
corporation ("Tenant").
1. PREMISES;
TERM.
1.1 Lease of Premises. Landlord
hereby leases the Premises to Tenant, and Tenant hereby leases the Premises from
Landlord, for the term and upon the conditions provided in this Lease. The
Premises are outlined on the floor plan attached as Exhibit A. Tenant will have
the non-exclusive right to use the common and public areas of the Project
(except the garage and the roof) as defined by Landlord from time to
time.
1.2 Term. Subject to and upon the
covenants, agreements and conditions of this Lease, the term of this Lease shall
commence on the Commencement Date (as it is established pursuant to Section 3.2)
and shall continue for the Lease Term specified in Item 6 of Part I of this
Lease. If the Commencement Date is not the first day of a month, then the Lease
Term shall be the period specified in Item 6 of Part I of this Lease, plus the
partial month in which the Commencement Date occurs.
1.3 Parking. Tenant shall have the
nonexclusive privilege to use the parking spaces described in Part I of this
Lease, pursuant to the rules and regulations relating to parking adopted by
Landlord from time to time. Tenant shall not use any parking spaces in the
garage not specifically allocated to Tenant. Neither Tenant nor its employees,
servants or any persons commonly occupying the Building shall use, enjoy, or
occupy any space designated as visitor parking. Tenant agrees to cooperate with
Landlord and other tenants in the use of the parking facilities. Landlord may,
at its sole discretion and upon thirty (30) days notice to Tenant, change the
location and nature of the garage parking spaces available to Tenant, its
employees and invitees.
2. RENT.
2.1 Rent. Tenant shall pay to
Landlord, as rent for the Lease Term, the Monthly Rent set forth in Item 8 of
Part I of this Lease. Tenant shall also pay to Landlord all sums of any kind or
nature provided in this Lease, including any sums, charges, expenses and costs
identified in this Lease as additional rent to be paid by Tenant to Landlord
(collectively, the "Rent").
2.2 Payment. Tenant's obligation
to pay Rent shall begin on the Rent Commencement Date and shall continue to
remain an obligation of Tenant until completely satisfied. Monthly Rent shall be
payable in advance on the first day of each calendar month during the term of
this Lease. Tenant shall also pay to Landlord, in advance, on the first day of
each calendar month, the Estimated Payments of Tenant's Proportionate Share of
Operating Expenses and Real Estate Taxes, as set forth in Section 2.6 and
Exhibit G, respectively. Tenant shall make all payments of Rent by check,
payable to Landlord, in legal tender of the United States, and delivered
to:
Best Property Fund, L.P.
c/o Transwestern Property
Company
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
or to
such other party or to such other address as Landlord may designate from time to
time by written notice to Tenant, without notice, demand, deduction, set-off or
counterclaim.
2.3 Initial Deposits. On the date
upon which Landlord and Tenant have both executed this Lease, Tenant shall pay
to Landlord an amount equal to one (1) monthly installment of the initial
Monthly Rent due hereunder, which amount shall be credited toward the first
installment of Monthly Rent for the fourth full calendar month of the Lease
Term. In addition, if the Rent Commencement Date (and therefore the obligation
under this Lease to pay Monthly Rent hereunder) occurs on a day other than the
first day of a calendar month, then Monthly Rent and Estimated Payments from
such date until the first day of the following calendar month shall be prorated
at the rate of 1130th of Monthly Rent and Estimated Payments for each day of
that month from and including the Rent Commencement Date, payable in advance.
Tenant shall also pay the Security Deposit in the amount set forth in Item 14 of
Part I of this Lease to Landlord concurrently with the execution of this
Lease.
2.4 Payment of Operating Expenses.
Beginning ninety (90) days after the Commencement Date (currently projected to
be September 1, 2003), Tenant shall pay to Landlord the product of the Operating
Expenses (as defined in Exhibit G) for the Project during any calendar year
falling entirely or partly within the Lease Term multiplied by Tenant's
Proportionate Share as specified in Item 9 of Part 1. For the purposes of this
Section 2, the calendar year 2003 shall operate as the Base Year Operating
Expense Stop. If a calendar year to which this Section 2.4 applies falls only
partly within the Lease Term, then Tenant's liability for Operating Expenses and
Real Estate Taxes in that calendar year shall be prorated
accordingly.
2.5 Estimated Operating Expenses.
Landlord shall notify Tenant prior to the , beginning of each calendar year of
Landlord's good faith estimate of the amount of Operating I Expenses (the
"Estimated Operating Expenses") that Landlord likely will incur for the Project
during the coming calendar year, and Landlord shall advise Tenant of the amount
of its Estimated Payments (as defined below) for the coming calendar
year.
2.6 Estimated Payments. Beginning
ninety (90) days after the Commencement Date (currently projected to be
September 1, 2003), Tenant shall pay to Landlord, as additional rent, an amount
equal to 1112th of Tenant's Proportionate Share of the Estimated Operating
Expenses (collectively, the "Estimated Payments"). Tenant shall make its
Estimated Payments on the first day of each calendar month. Tenant shall pay the
amount of the Estimated Payments until the amount is adjusted, effective the
first day of the next succeeding calendar month (provided Tenant shall have been
given at least ten (10) days prior written notice of such adjustment), based
upon Landlord's determination of the Estimated Operating Expenses for the
applicable calendar year. Landlord shall not adjust the amount of Estimated
Payments more than once per year, excluding any adjustments made effective
January 1 for the upcoming year. In the event of such a mid-year adjustment, in
the month Tenant first makes a payment based on the adjusted Estimated Payment,
Tenant shall pay to Landlord the difference between the lesser of: i) the amount
payable based on the adjusted Estimated Payments, and ii) the amount finally
determined by Landlord (if such amount has been determined) as the actual
Operating Expenses for the prior year; less the amount payable based upon the
Estimated Payments in effect prior to the adjustment, for each month which has
elapsed since December of the prior year. Notwithstanding anything contained
herein to the contrary, for the period consisting of the 91" day of the Lease
Term through the 165& day of the Lease Term, Tenant shall only be obligated
to pay an Estimated Payment* of $9.46 per rentable square foot of the Premises
subject to adjustment pursuant to the terms of this Article 2.
2.7 Landlord's Calculation. Within
150 days after the expiration of each calendar (including the calendar years in
which the Commencement Date and expiration or earlier termination of this Lease
or early termination of Tenant's right to occupy the Premises occurs), or as
soon as reasonably practical thereafter, Landlord shall determine the actual
Operating Expenses for such calendar year. Landlord shall compute the Operating
Expenses on the accrual basis in accordance with sound accounting and management
practices. Real Estate Taxes for each calendar year shall be the Real Estate
Taxes that accrue for that year (which, under the current law, are payable in
the following calendar year). The Operating Expenses for each calendar year
shall be those actually incurred, provided, however, that if the Building was
not 100% occupied during the entire calendar year, the Operating Expenses shall
be adjusted to project the Operating Expenses as if the Building was 100%
occupied. A final tax ▇▇▇▇ shall be conclusive evidence of the amount of Real
Estate Taxes.
2.8 Statement of Operating
Expenses. Landlord shall submit to Tenant a statement setting forth
Landlord's determination of (i) the actual Operating Expenses; (ii) Tenant's
proportionate share of such amounts; (iii) Tenant's net obligation for such
Operating Expenses for the calendar year ("Tenant's Net Obligation") which
reflects the credit of Tenant's Estimated Payments during the prior calendar
year ("Tenant's Net Credit"), and (iv) the amount, if any, that the Tenant's Net
Credit exceeds the Tenant's Net Obligation. Within thirty (30) days after the
delivery of such statement (including any statement delivered after the
expiration or earlier termination of this Lease or the early termination of
Tenant's right to occupy the Premises), Tenant shall pay Landlord the full
stated amount of Tenant's Net Obligation. Tenant's obligation to pay the full
stated amount of Tenant's Net Obligation shall survive the expiration
or
earlier
termination of this Lease or the early termination of Tenant's right to occupy
the Premises. If the aggregate amount of Tenant's Estimated Payments. during the
prior calendar year exceeds Tenant's proportionate share of the actual Operating
Expenses for that calendar year, the excess shall, at Landlord's option, either
be refunded to Tenant or credited to Tenant's next payment of Rent, until
such-excess is fully refunded or credited to Tenant.
2.9 Tenant's Right to Audit.
Landlord shall maintain complete and accurate books and records
reflecting the Operating Expenses in accordance with sound accounting and
management practices. Tenant shall have the right to inspect Landlord's records
at Landlord's office upon at least seventy-two (72) hours' prior notice during
normal business hours. Unless Tenant sends to Landlord any written exception to
any such statement of Operating Expenses within six (6) months after Landlord's
delivery of such statement, that statement shall be deemed final and accepted by
Tenant. Tenant shall pay the amount shown the statement in the manner prescribed
in this Lease, whether or not Tenant takes any such written exception, but
without any prejudice to Tenant's exception. If Tenant makes a timely exception,
Landlord shall cause a "Big Five" accounting firm that is not the primary
auditor of either Landlord or Tenant, or a successor to any such Big-Five firm,
to issue a final and conclusive resolution of Tenant's exception. Landlord shall
pay the cost of such certification unless Landlord's original determination of
annual Operating Expenses does not overstate the actual amount by more than
three percent (3%), in which case Tenant shall pay the cost of such
certification.
3. PREPARATION
AND CONDITION OF PREMISES
3.1 Landlord Improvements.
Landlord will use its best commercial efforts to cause the Premises to be
completed, at Landlord's expense, in accordance with the Work Letter attached as
Exhibit B. The work required to complete the Premises shall be done with such
minor variations as Landlord may deem advisable, so long as such variations will
not materially interfere with Tenant's intended use of the Premises. Other than
for Landlord Work as set forth in the Work Letter and as otherwise set forth
herein, Landlord shall have no obligation for the completion of the
Premises.
3.2 Commencement Date. The
Commencement Date shall be the earlier of June 1, 2003, or upon the Substantial
Completion, as defined below, of Landlord's Work (as defined in Exhibit B).
"Substantial Completion" shall mean the earlier of the date upon which Tenant
occupies the Premises to conduct its business or that date on which Landlord has
completed Landlord's Work at the Premises and a temporary certificate of
occupancy (or its equivalent) allowing Tenant to occupy the Premises has been
issued by the appropriate governmental authority provided, however, that if
Landlord shall be delayed in the Substantial Completion of the Landlord's Work
as a result of any of the following (a "Delay"):
(i) Tenant's failure to furnish
information in accordance herewith or to respond to any request by Landlord for
any approval or information within any time period prescribed, or if no time
period is prescribed, then within two (2) business days of such
request;
(ii) Tenant's insistence on materials,
finishes or installations other than Landlord's building standard after having
fist been informed by Landlord that such materials, finishes or installations
will cause a Delay; or
(iii) Tenant's changes in the Approved
Plans and Specifications (as defined in Exhibit B); or
(iv) The performance by a person, firm
or corporation employed by Tenant in the completion of any work by said person,
fm or corporation (all such work and such persons, firms or corporations being
subject to the approval of Landlord); or
(v) Any request by Tenant that Landlord
delay the completion of any of Landlord's Work; or
(vi) Any breach or default by Tenant in
the performance of Tenant's obligations under this Lease; or
(vii) Any delay resulting from Tenant's
having taken possession of the Premises prior to Substantial Completion;
or
(viii) Any reasonably necessary
displacement of any of Landlord's Work from its place in Landlord's construction
schedule resulting from any of the causes for Delay; or
(ix) Any other delay chargeable to
Tenant, its agents, employees or independent contractors;
then the
commencement of the Lease Term and the payment of Rent shall be accelerated by
the number of days of such Delay. The term "punch list items'' as used herein
shall mean any details of construction, mechanical adjustment or other matter,
the noncompletion of which does not materially interfere with Tenant's use of
the Premises, provided, however, said punch list items shall be completed by
Landlord within fourteen (14) days of the Commencement Date. The abatement of
rent shall be Tenant's sole remedy and shall constitute full settlement of all
claims that Tenant might otherwise have against Landlord by reason of the
Premises not being ready for occupancy by Tenant on the Commencement Date.
Landlord's reasonable determination of the Commencement Date shall be final and
binding on all parties for all purposes hereof, including, without limitation,
determination of the date of commencement of the Lease Term and of Tenant's
obligation to pay rent hereunder.
3.3 Acceptance of Premises.
Promptly following the Commencement Date, Landlord and Tenant shall execute a
Lease commencement Rider (the "Rider') in the form of Exhibit D acknowledging,
among other things, that Tenant has accepted possession, and reciting the exact
Commencement Date and Termination Date of the Lease. The Rider, when so executed
and delivered, shall be deemed to be a part of this Lease. Tenant, by taking
possession of the Premises, shall be deemed to have agreed that the Premises are
then in a satisfactory order, repair
and
condition, except as set forth on a punch list prepared by Landlord and Tenant
prior to occupancy.
4. SERVICES AND
UTILITIES.
4.1 Landlord's Services. Landlord
shall provide the utilities and services ("Building Services") as set forth in
Exhibit F.
4.2 Interruption of Services.
Should any of the Building equipment or machinery cease to function properly for
any cause, Landlord shall use reasonable diligence to repair the same promptly.
Landlord's inability to finish, to any extent, the Building Services, or any
cessation thereof resulting from any causes, including any entry pursuant to
Section 11, and any renovation, redecoration or rehabilitation of any area of
the Building, including the lobby, or any of the surrounding public spaces,
shall not render Landlord liable for damages to either person or property, nor
be construed as an eviction of Tenant, nor work an abatement of any portion of
rent, nor relieve Tenant from fulfillment of any covenant or agreement hereof,
provided, however, if an interruption of electricity service to the Premises or
other Building Service which precludes Tenant from its intended use of the
Premises and is within Landlord's reasonable control and the interruption causes
the Premises to be wholly untenantable for a period of ten (1 0) consecutive
business days, then Monthly Rent shall be abated proportionately.
4.3 Supplementary WAC. Whenever
machines or equipment which generate heat either as a prime purpose or as an
incidental effect and which affect the temperature otherwise maintained by the
air conditioning system are used by Tenant in the Premises, Landlord reserves
the right to install supplementary air conditioning units to serve the Premises,
and the costs therefore, including the costs of installation, operation and
maintenance thereof, shall be paid by Tenant as additional rent upon demand by
Landlord.
5. ALTERATIONS AND
REPAIR.
5.1 Tenant's Alterations. Tenant
shall make no alterations, additions or improvements to the Premises or the
Project (the "Alterations"), without obtaining the prior written consent of
Landlord which consent shall not be unreasonably withheld. Tenant shall submit
any such request to Landlord at least twenty (20) days prior to the commencement
of the Alterations. Landlord may impose, as a condition to its consent, and at
Tenant's sole cost, such requirements as Landlord may deem necessary in its
reasonable judgment, including the manner in which the Alterations are done, the
material to be used, plans from the Building architect and contractor by whom
the work is to be performed and the times during which the work is to be
accomplished, approval of all plans and specifications, and the procurement of
all licenses and permits. Landlord shall be entitled to or to require Tenant to
post notices on and about the Premises with respect to Landlord's non-liability
for the Alterations and Tenant shall not permit those notices to be defaced or
removed. Tenant further agrees not to connect any apparatus, machinery or device
to the Building systems, including electric wires, water pipes, fire, safety,
heating and mechanical systems, without the prior written consent of Landlord
which consent
shall not
be unreasonably withheld. Alterations which Tenant is permitted to make shall be
performed in a good and workmanlike manner and in compliance with this
Lease.
If any Alterations are made without the
prior written consent of Landlord, Landlord may correct or remove those
Alterations, and Tenant shall pay the amount of any and all expenses incurred by
Landlord in the performance of this work to Landlord as additional
rent. All Alterations shall be made (i) at Tenant's sole expense,
(ii) at such times, in such manner, and pursuant to such rules and regulations
as Landlord may designate, (iii) in a good, work-manlike, first class and prompt
manner, (iv) using new materials only, (v) in' accordance with all applicable
legal requirements and the requirements of any insurance company insuring the
Building, (vi) in accordance with Landlord's then current construction rules and
(vii) and only by such contractors, subcontractors, or mechanics as are approved
in writing by Landlord. Approval of contractors, subcontractors or mechanics by
Landlord, which approval may not be unreasonably withheld, shall be based upon
the contractors or mechanics being properly licensed, their financial condition,
experience and past job performance. Alterations shall be installed in
accordance with all code and insurance requirements. Tenant shall obtain any
necessary permits and furnish copies of the permits to Landlord prior to
commencement of any such work. Tenant shall also cause to be posted on the
Premises a notice of nonresponsibility on behalf of Landlord in accordance with
C.R.S. 93 8-22- 1 O5(2), as amended.
5.2 No Liens Permitted. Tenant has
no right or authority to grant or permit any lien or encumbrance against the
Premises or the Project. If any mechanics' lien is filed against the Premises or
the Project for work, labor, services, or materials, done for or supplied to or
claimed to have been done for or supplied to Tenant, such lien shall be
discharged by Tenant, at its sole cost and expense, within ten (10) business
days from the date Tenant receives written demand from Landlord to discharge the
lien, by the payment thereof or by bonding over the lien or otherwise causing
the lien to be discharged pursuant to Colorado law. If Tenant does not discharge
any such lien, Landlord may, at its option, discharge the same and treat the
cost thereof as additional rent, due and payable upon receipt by Tenant of a
written statement of costs from Landlord. Such discharge of any lien by Landlord
shall not be deemed to waive or release Tenant from its default under this Lease
for not discharging the same as required by this Lease. Tenant shall indemnify
and hold harmless Landlord from and against any and all claims, damages and
expenses (including attorney's fees) incurred by Landlord, arising from any
liens placed against the Premises or the Project as a result of Tenant making
any Alterations to the Premises.
5.3 Tenant's Repair Obligation.
Tenant, at its sole cost and expense, shall keep the Premises and the
fixtures and equipment therein (including supplementary air conditioning units,
whether installed by Landlord or Tenant) in good order and in clean, safe and
sanitary condition (ordinary wear and tear excepted), shall take good care
thereof, and shall suffer no waste or injury thereto.
5.4 Landlord's Repair Obligation.
Landlord shall, subject to reimbursement as part of Operating Expenses, to the
extent deemed reasonably necessary by Landlord for operations of the Building,
repair and maintain: the structural portions of the Building, elevators and
escalators
(if any),
plumbing, air conditioning, heating and electrical systems installed or
furnished by Landlord, the Building roof, the curtain wall, including all glass
connections at the perimeter of the Building, all exterior doors, including any
exterior plate glass within the Building, Building telephone and .electrical
closets owned or operated by Landlord, the common areas of the Building,
landscaping, and interior portions of the Building above and below grade which
are not within space leased to Tenant or other tenants in the Building. Landlord
shall have no obligation to make improvements to or to repair or maintain the
Premises during the Lease Term except as expressly required in this Lease or in
the Work Letter.
5.5 Ownership of
Property. Any Alterations and other improvements (including
Landlord's Work) and any equipment, machinery, and other property, installed in
or affixed to the Premises or the Project by or on behalf of Landlord or Tenant
(except Tenant's Personal Property, as defined below): (i) shall immediately
become the property of Landlord, and (ii) shall be surrendered to Landlord with
the Premises at the end of the Lease Term or at the termination of Tenant's
right to occupy the Premises, provided, however, that if Landlord requests
Tenant to remove any Alterations installed by or on behalf of Tenant, Tenant
shall cause those Alterations to be removed at Tenant's expense on or before the
end of the Term or before the termination of Tenant's right to occupy the
Premises, or Tenant shall reimburse Landlord, as additional rent, for the cost
of such removal and storage, as elected by Landlord. Landlord shall notify
Tenant of its election to require Tenant to remove any such property, if at all,
at the time Landlord gives its consent to the making of any Alterations, or to
the Working Drawings, in the case of the initial improvements made pursuant to
the Work Letter.
5.6 Tenant's Personal Property.
"Tenant's Personal Property" shall mean all movable personal property
such as Furniture and office equipment now or hereafter placed in or on the
Premises by Tenant or with Tenant's permission (other than any property of
Landlord) and which: (i) is removable without damage to the Premises and the
Project, and (ii) is not a replacement of any property of Landlord, whether such
replacement is made at Tenant's expense or otherwise. Tenant shall remove all of
Tenant's Personal Property from the Project on or before the date on which this
Lease expires or is sooner terminated or Tenant's right to occupy the Premises
is terminated. Any of Tenant's Personal Property (or the personal property
belonging to any other person or entity that occupied the Premises) left on the
Project after the date this Lease is terminated or Tenant's right to occupy the
Premises, for any reason shall be deemed to have been abandoned. In such event,
Landlord shall have the right to remove and store such property at Tenant's sole
cost and for to dispose of it in whatever manner Landlord considers appropriate,
without waiving its right to claim from Tenant all expenses and damages caused
by Tenant not removing such property, and Tenant and any other person or entity
shall have no right to compensation from or any other claim against Landlord as
a result.
6. USE. Tenant shall use and
occupy the Premises solely for general office purposes in accordance with the
applicable zoning regulations, and for no other purpose. Tenant shall not allow
any use of the Premises which will negatively affect the cost of coverage of
Landlord's insurance on the Building. Tenant shall not allow any inflammable or
explosive liquids or materials to be kept on the Premises. Tenant shall not
allow any use of the Premises which
would
cause the value or utility of any part of the Premises to diminish or would
interfere with any other tenant or with the operation of the Project by
Landlord. Tenant shall not permit any nuisance or waste upon the Premises, or
allow any offensive noise or odor in or around the Premises.
7. GOVERNMENTAL REQUIREMENTS.
Tenant shall not use or occupy the Premises for any unlawful purpose, and shall
at its sole cost comply with all present and future laws (including provisions
of the Americans With Disabilities Act of 1990 and regulations promulgated
thereunder, as they may be amended), zoning and other ordinances, regulations,
and orders of all governments, government agencies and any other public
authority concerning the use, occupancy and condition of the Premises and all
machinery, equipment and furnishings therein. If any governmental authority
shall deem the Premises to be a "place of public accommodation'^ under the
Americans with Disabilities Act or any other comparable law as a result of
Tenant's use, Tenant shall either modify its use to cause such authority to
rescind its designation or be responsible for any alterations, structural or
otherwise, required to be made to the Project or the Premises under such
laws.
8. INSURANCE
AND INDEMNITY.
8.1 Insurance Rating. Tenant shall
not conduct or permit to be conducted any activity, or place any equipment or
property in or about the Premises that will increase in any way the rate of
property insurance or other insurance on the Building, unless consented to by
Landlord. Landlord's consent may be conditioned upon Tenant's payment of any
costs arising directly or indirectly from such increase. If any increase in the
rate of property insurance or other insurance on the Building is stated by any
insurance company or by the applicable Insurance Rating Bureau to be due to
Tenant's activity, equipment or property in or about the Premises, the statement
shall be conclusive evidence that the increase in such rate is due to such
activity, equipment or property and, as a result thereof, Tenant shall be liable
for such increase. Any such rate increase and related costs incurred by Landlord
shall be deemed additional rent due and payable by Tenant to Landlord upon
receipt by Tenant of a written statement of the rate increase and costs. Tenant
may contest, at its sole cost and expense, any insurance rate increase, provided
such action by Tenant will not adversely affect the insurance coverage of
Landlord.
8.2 Tenant's Insurance. Tenant
shall, at its sole cost, carry and keep in full force and effect at all times
during the Lease Term, an any extensions thereof, a commercial general liability
policy with a combined single limit of at least Two Million Dollars
($2,000,000.00) per occurrence and an annual aggregate limit of at least Four
Million Dollars ($4,000,000.00).
(1) Worker's Compensation
Insurance. Tenant shall carry and keep in full force and effect at all
times during the term of this Lease, and any extensions thereof, at its sole
cost, worker's compensation or similar insurance in form and amounts required by
law. Such insurance shall contain waiver of subrogation provisions in favor of
Landlord and its Agent.
(2) Tenant's Special Form
Coverage Insurance. Tenant shall obtain and maintain throughout the term
of this Lease and any extension periods Special Form coverage
insurance.
insuring against damage to and loss of any and all Alterations in and about the
Premises, fixtures, equipment, Tenant's Personal Property and all other personal
property in and about the Premises. Proceeds of Tenant's insurance shall be used
for the repair and restoration of Tenant's property in the Premises and the
leasehold improvements made by Tenant in the event of damage or destruction.
Tenant's policy shall not be subject to a deductible in excess of a usual and
customary amount as reasonably determined by Landlord from time to
time.
(3) Landlord's Special Form
Coverage. Landlord shall obtain and maintain Special Form coverage
insurance subject to exclusions, in the amount of the full replacement value, on
the shell and core of the Building, including the Premises and any and all
tenant improvements constructed pursuant to the Work Letter (up to the amount of
the Initial Improvement Allowance, if any). Landlord's policy shall not be
subject to a deductible in excess of a usual and customary amount as reasonably
determined by Landlord from time to time.
(4) Tenant's Contractor's
Insurance. Tenant shall require any contractor of Tenant performing work
on the Premises to carry and maintain, at no expense to Landlord:
(A) commercial
general liability insurance, including contractor's liability coverage,
contractual liability coverage, completed operations coverage, broad form
property damage endorsement and contractor's protective liability coverage, to
afford protection with limits, for each occurrence, of not less than One Million
Dollars ($1,000,000.00) with respect to personal injury, death, property damage;
and
(B) worker's
compensation or similar insurance in form and amounts required by
law.
8.3 Requirements
for Tenant's Insurance Policies
(1) The
company or companies writing any insurance that Tenant is required to carry and
maintain or cause to be carried or maintained pursuant to this Lease as well as
the form of such insurance shall at all times carry a current A.M. Best rating
of at least A-MII. Tenant's commercial general liability and Special Form
coverage insurance policies and certificates evidencing such insurance shall
name Landlord, Landlord's property management company, and any mortgagee or
ground Landlord as additional insureds or loss payees (as applicable), shall
name Landlord as a certificate holder, and shall contain a provision by which
the insurer agrees that such policy shall not be canceled except after thirty
(30) days written notice to Landlord and any other additional insureds. Tenant
agrees to provide to Landlord prior to taking possession of the Premises, and
from time to time upon request, the certificates evidencing such insurance or
copies of the insurance policies. Landlord may withhold delivery of the Premises
without delaying the Commencement Date, or triggering any abatement of rent, if
Tenant does not provide Landlord with these certificates.
(2) Any
liability insurance carried or required to be carried by Tenant hereunder shall
be primary over any liability policy that might be carried by Landlord. If
Tenant does not perform any of its obligations regarding the acquisition and
maintenance of insurance,
Landlord
may perform the same and the cost of same shall be deemed additional rent,
payable upon Landlord's demand. Failure to pay after demand shall constitute a
default of this Lease by Tenant.
(3) If Tenant obtains
any general liability insurance policy on a claims-made basis, Tenant shall
provide continuous liability coverage for claims arising during the entire Lease
Term, regardless of when such claims are made, either by obtaining an
endorsement providing for an unlimited extended reporting period in the event
such policy is canceled or not renewed for any reason whatsoever or by obtaining
new coverage with a retroactive date the same as or earlier than the expiration
date of the canceled or expired policy. The limits of any insurance maintained
by Tenant shall not, under any circumstances, limit the liability of Tenant
hereunder.
8.4 Indemnification. Tenant shall
indemnify, defend and hold harmless Landlord and its officers, directors,
employees and agents against any claim by any third party for injury to any
person or damage to or loss of any property occurring on the Project and arising
from the use of the Premises, or arising from any other negligent act or
omission of Tenant or any of Tenant's employees or agents. Tenant's obligations
under this section shall survive the expiration or termination of this Lease or
the early termination of Tenant's right to occupy the Premises.
8.5 Waiver of Subrogation
Notwithstanding anything to the contrary in this Lease, Landlord and Tenant
hereby release each other and waive any claims they may have against the other
for loss or damage to the Project, the Premises, leasehold improvements,
fixtures, equipment and/or any other personal property arising from a risk
insured against under the Special Form coverage insurance policies to be carried
by Landlord and Tenant, as required above, or such other policies actually
carried by Landlord or Tenant, even though such loss or damage was caused by the
negligence of Landlord and Tenant, their agents or employees. Landlord and
Tenant agree to obtain and maintain throughout the term of this Lease
endorsements to their respective Special Form coverage policies waiving the
right of subrogation of their insurance companies against the other party and
its agents and employees. Except to the extent expressly provided herein,
nothing contained in this Lease shall relieve Landlord or Tenant of any
liability to each other or to their insurance carriers which Landlord or Tenant
may have under law or the provisions of this Lease in connection with any damage
to the Project, the Premises, leasehold improvements, fixtures, equipment,
furniture, and all other personal property, by fire, casualty or other insured
risk.
9. DAMAGE
AND DESTRUCTION.
9.1 Tenant's Responsibility for
Damage. Except to the extent of insurance proceeds received by
Landlord pursuant to Section 8.5 (or if Landlord does not carry the insurance
required under Section 8.2(3), then except to the extent of the proceeds that
would have been received by Landlord had Landlord carried the required
insurance), any and all injury, breakage or damage to the Premises or the
Project arising from any cause done by Tenant or its agents, contractors,
servants, employees and visitors, or by individuals and persons making
deliveries to or from the Premises for the benefit of Tenant, shall be repaired
by Landlord at the sole expense
of
Tenant, or at Landlord's option, by Tenant, at Tenant's expense, under
Landlord's direction and supervision. Payment of the cost of such repairs by
Tenant shall be due as additional rent with the next installment of Monthly Rent
after Tenant receives a ▇▇▇▇ for such repairs from Landlord. This provision
shall not be in limitation of any other rights and remedies which Landlord has
or may have in such circumstances.
9.2 Liability for Damage to Personal
Property and to Person Tenant's Personal Property, and all personal
property of its employees, agents, subtenants, business invitees, licensees,
customers, clients, family members, guests or trespassers, in and on the
Premises shall be and remain in and on the Premises and the Project at the sole
risk of the parties, and Landlord shall not be liable to any such person or
party for any damage to or loss of personal property thereof, including any loss
or damage arising from (i) any act, including theft, or any failure to act, of
any other persons, (ii) the leaking of the roof, (iii) the bursting, rupture,
leaking or overflowing of water, sewer or steam pipes, (iv) the rupture or
leaking of heating or plumbing fixtures, (v) short circuiting or malfunction of
electrical wires or fixtures, including security and protective systems, or (vi)
the failure of the heating or air-conditioning systems. Landlord shall also not
be liable for the interruption or loss to tenant's business arising from any of
the above-described acts or causes. Tenant specifically agrees to save Landlord
harmless in all such cases.
9.3 Damage
to the Project and/or the Premises
(1) If the Premises is
damaged by fire, casualty or other event insured against by Landlord's Special
Form coverage insurance policy covering the Building, and the Premises can be
fully repaired, in Landlord's opinion, within 180 days from the date of the
insured fire, casualty or other event, Landlord, if sufficient insurance
proceeds are made available by the holders of any mortgages or deeds of trust
encumbering the Project, shall repair such damage, provided, however, Landlord
shall have no obligation to repair any damage to, or to replace, any leasehold
improvements other than leasehold improvements installed by Landlord as part of
the original Landlord Work under Exhibit B, Tenant's Personal Property, or other
personal property in and about the Premises. Except as otherwise provided
herein, if the entire Premises is rendered inaccessible or untenantable by
reason of the insured fire, casualty or other event, then Monthly Rent and
payments with respect to Tenant's Proportionate Share of Operating Expenses
shall ▇▇▇▇▇ for the period from the date of such damage to the date when
Landlord has completed repairs to the Premises as specified above, and if only a
portion of the Premises is so rendered untenantable, then Monthly Rent and
payments with respect to Tenant's Proportionate Share of Operating Expenses
shall ▇▇▇▇▇ for such period in the proportion which the area of the portion of
the Premises that was used and occupied by Tenant on the date of the casualty
event and was rendered untenantable bears to the total area of the Premises,
provided, however, if, prior to the date when Landlord completes the repairs to
the Premises as specified above, any portion of the Premises so damaged shall be
rendered tenantable and shall be used or occupied by Tenant or any person
claiming through or under Tenant, then the amount by which the Monthly Rent and
payments with respect to increases in Operating Expenses shall ▇▇▇▇▇ shall be
equitably apportioned for the period from the date of any such use or occupancy
to the date when such repairs are completed. No compensation or claim or
reduction of rent will be allowed or paid by
Landlord
by reason of inconvenience, annoyance, or injury to business arising from the
necessity of repairing the Premises or any portion of the Project of which they
are a part.
(2) Notwithstanding the
foregoing, if, prior to or during the term of this Lease, (A) the Premises or
the Project is so damaged that, in Landlord's reasonable opinion, the damage
cannot be fully repaired within 180 days from the date the damage occurred, (B)
Landlord reasonably estimates that the insurance proceeds payable to Landlord,
plus the deductible, will be insufficient to fully repair the damage, or (C) the
remainder of the Lease Term at the time of the casualty is less than twelve (12)
months, then Landlord, at its option, in any of the events described in (A)
through (C) above, and Tenant, at its option, only in the event described in
(C)- above, may give the other party within sixty (60) days after such fire or
other casualty, a 120-day notice of termination of this Lease and, in the, event
such notice is given, this Lease shall terminate (whether or not the Lease Term
shall have commenced) upon the expiration of the 120 days with the same effect
as if the date of expiration of the 120-day period were the date definitely
fixed for expiration of the Lease Term, and the. then-applicable Monthly Rent
shall be apportioned as of such date, including any rent abatement as provided
above.
(3) Landlord agrees to
notify Tenant within forty-five (45) days after a casualty event if it estimates
that it will be unable to repair the Premises within 180 days after the date of
the damage, and, if Landlord so notifies Tenant, Tenant may, within thirty (30)
days of Landlord's notice to Tenant of that determination, terminate the Lease
by written notice to Landlord, effective thirty (30) days following the date of
Tenant's notice.
10. EMINENT
DOMAIN.
10.1 Total
Condemnation. If the whole or a substantial part of the
Premises is condemned or acquired in lieu of condemnation by any governmental
authority for any public or quasi-public use or purpose, then the term of this
Lease shall cease and terminate as of the date when title vests in such
governmental authority. Tenant shall have no claim against Landlord or the
condemning authority for any portion of the amount of the condemnation award or
settlement that Tenant claims as its damages arising from such condemnation or
acquisition. Tenant may make a separate claim against the condemning authority
for a separate award for the value of Tenant's leasehold interest and any of
Tenant's tangible personal property and trade fixtures it cannot remove, for
moving and relocation expenses and for such business damages and/or
consequential damages as may be allowed by law, provided Tenant's claim shall
not diminish the amount of Landlord's award.
10.2 Partial Condemnation. If less
than a substantial part of the Premises is condemned or acquired in lieu of
condemnation by any governmental authority for any public or quasi-public use or
purpose, the rent shall be equitably adjusted on the date when title vests in
such governmental authority and this Lease shall otherwise continue in full
force and effect. For purposes of this Section 10.2, a "substantial part of the
Premises" shall be considered to have been taken if 25% or more of the Premises
is condemned or acquired in lieu of condemnation, or if less than 25% of the
Premises is taken and the portion of the Premises taken renders the entire
Premises unsuitable for the conduct of Tenant's business.
10.3 Demolition. If
twenty-five percent (25%) or more of the Building is condemned (whether or not
the Premises shall have been condemned) and Landlord elects to demolish the
remainder of the Building, Landlord may elect to terminate this Lease by
providing written notice to Tenant, such notice to be effective 120 days
following the date of such notice.
11. RIGHTS RESERVED TO
LANDLORD.
Landlord shall have the following
rights, without liability for damage or injury to property, person or business
and without effecting an eviction, constructive or actual, or disturbance of
Tenant's use or possession of the Premises or giving rise to any claim for
set-off, abatement of rent or otherwise:
(1) To change the
Building's name or street address upon not less than sixty (60) days prior
written notice to Tenant;
(2) To affix, maintain
and remove any and all signs on the exterior and common areas of the Project
except where the exercise of such rights conflicts with express signage rights
granted to Tenant hereunder;
(3) To reasonably
designate and approve, prior to installation, all window shades, blinds, drapes,
awnings, window ventilators, lighting and other similar equipment to be
installed by Tenant that may be visible from the exterior of the Premises or the
Project;
(4) To decorate and make
repairs, alterations, additions and improvements, whether structural or
otherwise, in, to and about the Project and any part thereof (provided that
Landlord shall give Tenant oral or written notice at least 24 hours prior to
entering the Premises for any of the purposes set forth in this Section 11,
except in the case of an apparent or actual emergency), and, during the
continuance of any of such work, to temporarily close doors, entryways, surface
and/or garage parking areas, and common areas in the Project and to interrupt or
temporarily suspend Building Services and facilities, all without affecting
Tenant's obligations hereunder, so long as the Premises remain
tenantable;
(5) To grant to anyone
the exclusive right to conduct any business or render any service in the
Building, provided Tenant is not thereby excluded from uses expressly permitted
herein;
(6) To show the Premises
to prospective purchasers, tenants (within the last six months of the Term),
brokers, lenders, investors, rating agencies or others at any reasonable time,
provided that Landlord gives prior notice to Tenant and does not materially
interfere with Tenant's intended use of the Premises;
(7) To install, use and
maintain through the Premises, pipes, conduits, wires and ducts serving the
Project, provided that such installation, use and maintenance does not
unreasonably interfere with Tenant's intended use of the Premises;
..
(8) To designate a
lockbox collection agent for collections of amounts due Landlord. In that case,
the date of payment of Rent or other sums shall be the date of the agent's
receipt of such payment or the date of actual collection if payment is made in
the form of a negotiable instrument thereafter dishonored upon presentment.
However, Landlord may reject any payment for all purposes as of the date of
receipt or actual collection by mailing to Tenant within twenty-one (21) days
after such receipt or collection a check equal to the amount sent by
Tenant;
(9) To alter, relocate,
reconfigure, reduce 'and withdraw the common areas located outside the Building,
including parking and access roads, as long as the Premises remain reasonably
accessible;
(10) To take any other
action which Landlord deems reasonable in connection with the operation,
maintenance or preservation of the Project.
12. DEFAULT
OF TENANT.
An Event of Default shall exist
under this Lease, if:
(1) Tenant does not pay
Rent as required under this Lease, including any installment of Monthly Rent,
costs of Landlord's Work, if any, or any sums, charges, expenses and costs of
any kind or nature identified in this Lease as additional rent, although no
legal or formal demand has been made, provided that there shall exist no Event
of Default unless Tenant shall have been given written notice of such nonpayment
and shall not have made the payment within five (5) days following the giving of
such notice, provided, however, Landlord shall not be required to provide more
than one (1) written notice of default to Tenant in any one twelve (12) month
period during the Lease Term;
(2) Tenant materially
violates or does not perform any of the provisions of this Lease required of
Tenant, provided that, on up to three (3) occasions during the Lease Term, there
shall exist no Event of Default unless Tenant's violation or nonperformance of
any of those provisions continues for a period of thirty (30) days after written
notice thereof has been delivered by Landlord to Tenant or, in cases where the
violation or nonperformance cannot be corrected within thirty (30) days, Tenant
does not begin to correct the violation or nonperformance within thirty (30)
days after receiving Landlord's written notice and/or Tenant thereafter does not
diligently pursue the correction of the violation or nonperformance to
completion within sixty (60) days after receiving Landlord's written
notice;
(3) Tenant abandons the
Premises without paying the Rent when due;
(4) this Lease or the
estate of Tenant hereunder shall be transferred to or shall pass to or devolve
upon any other person or party except in a manner permitted herein;
(5) Tenant does not
obtain the release of any mechanic's lien as required by this
Lease;
(6) this Lease or the
Premises or any part thereof shall be taken upon execution or by other process
of law directed against Tenant, or shall be taken upon or subject to any
attachment at the instance of any creditor or claimant against Tenant, and the
attachment shall not be discharged or disposed of within fifteen (15) days after
the levy thereof;
(7) Tenant, its
employees or invitees do not comply with the rules and regulations pertaining to
parking space usage described in Section 1.3, provided that there shall exist no
Event of Default unless Tenant shall have been given written notice of such
failure to comply and Tenant shall not have cured the noncompliance within ten
(10) days following the giving of such notice, provided, however, Landlord shall
not be required to provide more than one (1) written notice of default for
failure to comply with the rules and regulations pertaining to parking space
usage to Tenant during the Lease Term; or
(8) an Event of
Bankruptcy occurs, as specified in Section 3 1.14.
13. LANDLORD
REMEDIES.
13.1 Termination of Lease or
Possession. If Tenant defaults, Landlord may elect by notice to Tenant
either to terminate this Lease or to terminate Tenant's possession of the
Premises without terminating this Lease. In either case, Tenant shall
immediately vacate the Premises and deliver possession to Landlord, and Landlord
may repossess the Premises and may, at Tenant's sole cost, remove any of
Tenant's signs and any of its other property, without relinquishing its right to
receive Rent or any other right against Tenant.
13.2 Lease Termination Damages. If
Landlord terminates the Lease, Tenant shall pay to Landlord all Rent due on or
before the date of termination, plus Landlord's reasonable estimate of the
aggregate Rent that would have been payable from the date of termination through
the Termination Date, reduced by the rental value of the Premises calculated as
of the date of termination for the same period, taking into account anticipated
vacancy prior to reletting, reletting expenses and market concessions, both
discounted to present value at the rate of ten percent (10%) per annum. If
Landlord shall relet any part of the Premises for any part of such period before
such present value amount shall have been paid by Tenant or finally determined
by a court, then the amount of Rent payable pursuant to such reletting (taking
into account vacancy prior to reletting and reletting expenses or concessions)
shall be deemed to be the reasonable rental value for that portion of the
Premises relet during the period of the reletting. Any leasing costs associated
with the reletting of the Premises shall be prorated to the extent that the term
of the reletting extends beyond the date on which this Lease would have expired
but for the termination under this Section 13.2.
13.3 Possession Termination.
Damages If Landlord terminates Tenant's right to possession without terminating
the Lease, Landlord shall use its best efforts to relet the Premises for such
rent, for such time, and upon such commercially reasonable terms as Landlord in
its sole discretion shall determine, without any obligation to do so prior to
renting other vacant areas in the Building. Any proceeds from reletting the
Premises shall first be applied to the expenses of reletting, including
reasonable costs of repair, alteration, advertising, brokerage, legal, and
other
reasonably
necessary expenses. If the reletting proceeds after payment of expenses are
insufficient to pay the full amount of Rent under this Lease, Tenant shall pay
such deficiency to Landlord monthly upon demand as it becomes due. Any excess
proceeds shall be retained by Landlord.
13.4 Litigation
Costs. Tenant shall pay Landlord's reasonable attorneys' fees and other
costs in enforcing this Lease, whether or not suit is filed. If either party
brings any legal action or proceeding against the other to enforce or interpret
this Lease or otherwise arising out of this Lease, the prevailing party in such
action or proceeding shall be entitled to its costs and expenses of suit and
enforcing the judgment,, awarded to it, including without limitation, reasonable
attorney fees.
14. SURRENDER. Upon the expiration
of the Term of this Lease or the early termination of this Lease or the
termination of Tenant's right to possession of the Premises, Tenant shall return
the Premises to Landlord broom clean and in good order and condition, ordinary
wear and casualty damage excepted. If Landlord requires Tenant to remove any
Alterations, then Tenant shall remove the Alterations as required under Sections
5.5 and 5.6 in a good and workmanlike manner and restore the Premises to its
condition prior to their installation.
15. HOLDING OVER. In the event
Tenant does not immediately surrender the Premises on the date of expiration of
the term of this Lease or any extension period thereof or the early termination
of this Lease or upon the termination of Tenant's right to possession of the
Premises, Tenant shall, by virtue of this Section 15, become a Tenant by the
month and hereby agrees to pay to Landlord a Monthly Rent, in advance, equal to
150% of the sum of (A) the Monthly Rent in effect during the last month of the
term of this Lease as it may have been extended, plus (B) the Estimated Payment
required to be made with Monthly Rent pursuant to Section 2.6 (the "Holdover
Rate"). The month-to-month tenancy shall commence with the first day after the
expiration of the term of this Lease. Tenant as a month-to-month Tenant shall
continue to be subject to all of the conditions and covenants of this Lease.
Tenant shall give to Landlord at least thirty (30) days written notice of any
intention to quit the Premises. Tenant shall also be liable to Landlord for any
expenses or damages (including consequential damages) reasonably incurred by
Landlord and caused by Tenant's holdover (including space planning expenses,
legal fees and commissions for a prospective new Tenant for the Premises). In
the event Tenant holds after the expiration of the term of the Lease or
extension period thereof, and Landlord desires to regain possession of the
Premises promptly at the expiration of the term of this Lease or extension
period hereof, then at any time prior to Landlord's acceptance of modified
Monthly Rent from Tenant as a month-to-month Tenant hereunder, Landlord may
declare Tenant to be a tenant at sufferance and Landlord may forthwith re-enter
and take possession of the Premises by any legal process in force in the
jurisdiction in which the Project is located.
16. SUBORDINATION,
NONDISTURBANCE AND ATTORNMENT.
16.1 Subordination. Subject to the
nondisturbance provisions set forth in Section 16.2 below, this Lease is subject
and subordinate to (i) the lien of all and any existing or future mortgages
(which term "mortgages" shall include both construction and permanent financing
and
shall
include deeds of trust and similar security instruments); (ii) all and any
ground leases; and (iii) any protective covenants; which may now or hereafter
encumber or otherwise affect the real estate (including the Building) of which
the Premises is a part, or Landlord's leasehold interest therein, and to all and
any renewals, extensions, modifications, recastings or refinancings thereof. In
confirmation of such subordination, Tenant shall, at Landlord's request,
promptly execute any requisite or appropriate certificate or other document,
subject to the restrictions in Section 16.2 below and provided the information
contained therein is true and correct. Tenant hereby constitutes and appoints
Landlord as Tenant's attorney-in-fact to execute any such certificate or other
document for or on behalf of Tenant if Tenant does not execute the certificate
or document within ten (1 0) days after receipt thereof. This power of attorney
is coupled with an interest.
16.2 Nondisturbance.
Notwithstanding Section 16.1, Tenant shall only be obligated to subordinate its
leasehold interest to any mortgage, deed of trust, ground lease or protective
covenants now or hereafter placed upon the Project if the holder of such
mortgage or deed of trust or the Landlord under such ground lease or the
declarant under such protective covenants will grant to Tenant a non-disturbance
agreement, using the form of document then being employed by such holder,
Landlord or declarant for such purposes, which will provide that Tenant,
notwithstanding any default of Landlord hereunder, shall have the right to
remain in possession of the Premises in accordance with the terms and provisions
of this Lease for so long as Tenant shall not be in default under this
Lease.
16.3 Attornment. Tenant agrees that
in the event any proceedings are brought for the foreclosure of any such
mortgage or for the termination of such ground lease, Tenant shall attorn to the
purchaser at such foreclosure sale or the ground Landlord, if requested to do so
by such purchaser or the ground Landlord. Tenant shall also recognize such
purchaser as the Landlord under this Lease. Tenant waives the provisions of any
statute or rule of law, now or hereafter in effect, which may give or purport to
give Tenant any right to terminate or otherwise adversely affect this Lease and
the obligations of Tenant hereunder in the event that any such foreclosure
proceeding is prosecuted or completed or such ground lease is
terminated.
16.4 Mortgagee's Unilateral
Subordination. Notwithstanding anything herein to the contrary, any
mortgagee or ground Landlord may at any time subordinate the lien of its
mortgage or its ground lease to the operation and effect of this Lease without
Tenant's consent by giving Tenant written notice of such subordination, in which
event this Lease shall be deemed to be senior to such mortgage or ground lease
and thereafter such mortgage or ground Landlord shall have the same rights as it
would have had if this Lease had been executed, delivered and recorded before
the mortgage or ground lease (and not subordinated thereto).
16.5 Notice to Mortgagees. If the
Project, the Premises or any part respectively thereof is at any time subject to
a mortgage or a deed of trust or other similar instrument, and this Lease or the
rents are assigned to such mortgagee, trustee or beneficiary, and Tenant is
given written notice thereof, including the post office address of such
assignee, then Tenant may not pursue any remedy for any default on the part of
Landlord without first giving written notice by certified or registered mail,
return receipt requested, to such assignee. The notice shall
specify
the-
default in reasonable detail, and afford such assignee a reasonable opportunity
to make performance, at its election, for and on behalf of
Landlord.
17. ASSIGNMENT
AND SUBLETTING.
17.1 Assignment and Subletting.
Tenant may not assign or otherwise transfer this Lease, or sublet (including
permitting occupancy or use by another party) the Premises, or any part thereof,
except in accordance with this Section 7 17.
17.2 Tenant's Proposed Assignment or
Subletting. Tenant shall give Landlord at least fifteen (15) days prior
written notice of Tenant's desire to assign this Lease or sublet all or any part
of the Premises and Tenant shall include with the written notice a copy of the
proposed sublease or assignment document. In the event Tenant seeks permission
to sublease a part of the Premises, the notice shall also identify the area of
the Premises Tenant seeks to sublease and the intended term of the sublease.
Landlord shall notify Tenant of its approval or rejection of Tenant's request to
assign or sublease within fifteen (15) days after receipt of Tenant's notice of
intent to assign or sublease; said approval not to be unreasonably withheld. The
non-monetary terms and conditions of such sublease shall be the same terns and
conditions as set forth in this Lease. Notwithstanding anything contained herein
to the contrary, however, the Landlord's consent shall not be required for any
assignment to any affiliate ("Affiliate") of the Tenant (an Affiliate is an
entity which is controlled by, controls, or is under common control with,
Tenant) or any person who acquires all or substantially all of the assets of
Tenant in a sale, merger or similar transaction provided that (i) Tenant
notifies Landlord of any such assignment or sublease and promptly supplies
Landlord with any documents or information reasonably requested by Landlord
regarding such assignment or sublease or such Affiliate or person (including
evidence of the assignee's assumption of Tenant's obligations under this Lease
in the event of an assignment), s(ii) such assignment or sublease is not a
subterfuge by Tenant to avoid its obligations under this Lease, (iii) such
assignment or sublease does not cause Landlord to be in default under any
existing Lease at the Property, and (iv) the net worth of such Affiliate or
person is at least equal to the net worth of Tenant as of the date of this
Lease. An assignee of Tenant's entire interest in this Lease pursuant to the
immediately preceding sentence may be referred to herein as an "Affiliated
Assignee." "Control," as used in this Article 17, shall mean the ownership,
directly or indirectly, of greater than fifty percent (50%) of the voting
securities of, or possession of the right to vote, in the ordinary direction of
its affairs, of greater than fifty percent (50%) of the voting interest in, an
entity.
17.3 Tenant's Right to Assign or
Sublet. Tenant may assign this Lease or sublet all or any part of the
Premises within 120 days after the date that the fifteen (15) day period .
referenced above expires. Except as provided above, Tenant shall be required,
however, to obtain Landlord's prior written consent to any assignment or any
sublease, which consent will not be unreasonably withheld. In the event that
Tenant does not deliver to Landlord any sublease or assignment agreement, fully
executed by the parties thereto, within the 120 day period, Tenant may not
assign this Lease or sublet the Premises without first obtaining Landlord's
prior consent to the proposed assignment or sublease as required under Section
17.2.
17.4 Tenant to Remain Liable.
Tenant shall remain liable for all of its obligations as primary obligor (and
not as surety or guarantor) for the payment of all rental due hereunder, and for
the full and faithful observance and performance of the covenants, terms and
conditions herein contained, notwithstanding any assignment or subletting of all
or a portion of the Premises or any consent by Landlord to any such assignment
or subletting.
17.5 Landlord's Expenses. Tenant
shall reimburse Landlord for, as additional rent, all costs and expenses,
including reasonable attorney's fees, which Landlord incurs by reason of or in
connection with any assignment, sublease, or leasehold mortgage proposed or
granted by Tenant (whether or not permitted under this Lease), and all
negotiations and actions with respect thereto, such additional rent to be due
and payable within fifteen (15) days of receipt of a statement of such costs and
expenses from Landlord. Any assignment or subletting shall be effected on forms
supplied or approved by Landlord.
17.6 Other Transfers. No assignment
of this Lease shall be effectuated by operation of law or otherwise without the
prior written consent of Landlord. For the purposes of this Lease, the transfer
of twenty-five percent (25%) or more of the voting stock of Tenant, if Tenant is
not a publicly held corporation, shall be deemed an assignment of this Lease
requiring the approval of Landlord required above. Notwithstanding the above,
the Landlord shall consent to any sublease or assignment of this Lease to any
person who acquires all or substantially all of the assets of Tenant in a sale,
merger or similar transaction provided that (i) Tenant notifies Landlord in
writing of any such assignment or sublease and promptly supplies Landlord with
any documents or information requested by Landlord regarding such assignment or
sublease (including evidence of the assignee's assumption of Tenant's
obligations under this Lease in the event of an assignment), (ii) such
assignment or sublease is not a subterfuge by Tenant to avoid its obligations
under this Lease, (iii) such assignment or sublease does not cause Landlord to
be in default under any existing Lease at the Project, and (iv) the net worth of
such person is at least equal to the net worth of Tenant as evidenced by
Tenant's 2002 audited financial statements as determined by a mutually agreed
upon independent certified public accountant ("CPA"). If the parties are unable
to agree upon one (1) independent CPA within fifteen (15) days after Tenant has
submitted to Landlord all of the documents and information requested by
Landlord, then both Landlord and Tenant shall submit the name of its designated
CPA to the other party and those two (2) shall then appoint a third CPA to make
the determination set forth above. If only one CPA shall have been given to the
other party within such fifteen (15) day period, that sole CPA shall render the
determination which would otherwise have been made as hereinabove provided.
Consent by Landlord to one or more assignments under this Section 17.6 shall not
operate as a waiver of Landlord's rights as to any subsequent
assignments.
17.7 No Waiver. Landlord's
collection or acceptance of rent from any assignee of Tenant shall not
constitute a waiver or release of Tenant from any covenant or obligation
contained in this Lease, nor shall any such assignment or subletting be
construed to relieve Tenant from giving Landlord the 15-day notice or from
obtaining the consent in writing of Landlord to any further assignment or
subletting. In the event that Tenant is in default of any term or provision of
this Lease, Tenant hereby assigns to Landlord the rent due from any
subtenant
of Tenant and hereby authorizes and directs each such subtenant, upon notice
from Landlord, to pay the rent directly to Landlord, the collection or
acceptance of rent from any subtenant in such instance not to constitute a
waiver or release of Tenant from any covenant or obligation contained in this
Lease, except to the extent such rent payments received by Landlord satisfies
rent obligations required under this Lease.
17.8 Excess Rental. In the event
that the rental due and payable by a sublessee (or a combination of the rental
payable under such sublease, plus any bonus or other consideration thereof
incident thereto) exceeds the Rent payable under this Lease, or if with respect
to a permitted assignment, permitted license, or other transfer by Tenant
permitted by Landlord, the consideration payable to Tenant by the assignee,
licensee or other transferee exceeds Rent payable under this Lease, then Tenant
shall be bound and obligated to pay Landlord fifty percent (50%) of such excess
rental and other excess consideration, excluding broker commissions actually
paid by Tenant, within ten (10) days following receipt thereof by Tenant from
such sublessee, assignee, licensee or other transferee, as the case may
be.
17.9 Effect on Renewals or
Expansions. If Tenant assigned the Lease or if, at any point Tenant has
subleased fifty percent (50%) or more of the rentable area of the Premises, any
rights of Tenant to renew this Lease, extend the Lease Term, or to lease
additional space in the Project shall be extinguished, and will not be
transferred to the subtenant or assignee. Further, an exercised option to renew
this Lease, extend the Lease Term or lease additional space in the Project shall
at Landlord's election be voided if Tenant requests Landlord's approval to
sublet any part of the Premises or assign the Lease between the date Tenant
exercises its option to renew this Lease, extend the Lease Term or lease
additional space in the Project and the commencement date of such exercised
option.
17.10 Encumbering of the Premises.
Tenant may not mortgage or encumber this Lease without the prior written consent
of Landlord which consent shall not be unreasonably withheld.
17.1 1 Profit Sharing. Neither Tenant
nor any other person having an interest in the possession, use, occupancy or
utilization of the Premises shall enter into any lease, sublease, license,
concession or other agreement for use, occupancy or utilization of space in the
Premises which provides for rental or other payment for such use, occupancy or
utilization based in whole or in part on the net income or profits derived by
any person from the Premises (other than an amount based on a fixed percentage
or percentages of receipts or sales). Any such purported lease, sublease,
license, concession or other agreement shall be absolutely void and ineffective
as a conveyance of any right or license in the possession, use, occupancy or
utilization of any part of the Premises.
17.12 Bankruptcy. Notwithstanding
anything to the contrary contained in this Lease, if a trustee in bankruptcy is
entitled to assume control over Tenant's rights under this Lease, and assigns
such rights to any third party, the Monthly Rent to be paid hereunder by such
party shall be increased to the then current Monthly Rent (if greater than then
being paid for the Premises) which Landlord would charge for comparable space in
the Building as of the date of such third party's occupancy of the
Premises.
18. CONVEYANCE BY LANDLORD.
Landlord may freely and fully transfer, convey and assign its interest
hereunder. In the event of any sale or transfer of the Project by operation of
law or otherwise by the party named as Landlord hereunder (or any subsequent
successor, transferee or assignee), then the party whose interest is thus sold
or transferred shall be and is completely released and forever discharged from
and with respect to all covenants, obligations and liabilities as Landlord under
this Lease arising after the date of such sale or transfer (except the
obligation to return to Tenant any security deposit not delivered to its
transferee).
19. ESTOPPEL CERTIFICATES. Tenant
agrees, at any time and from time to time, upon not less than ten (10) days
prior written notice by Landlord, to execute, acknowledge and deliver to
Landlord and/or any other person or entity designated by Landlord an estoppel
certificate in the form of Exhibit E provided that the information contained
therein is true and correct. Any such estoppel certificate may be relied upon by
any owner of the Project, any prospective purchaser of the Project (or an
interest therein or in Landlord), any mortgagee or prospective mortgagee of the
Project or of Landlord's interest, or any prospective assignee of any such
mortgage, any ground Landlord or prospective ground Landlord or any prospective
assignee of any such ground lease. If Tenant does not deliver such certificate
within that time shall constitute an Event of Default and shall conclusively be
deemed an admission by Tenant of the matters set forth in the
certificate.
20. SECURITY DEPOSIT. The Security
Deposit shall be held by Landlord as security for the payment and performance by
Tenant of all Tenant's obligations, covenants, conditions, and agreements under
this Lease, and Landlord shall have the right, but shall not be obligated, to
apply all or any portion of the Security Deposit toward the cure of any default
by Tenant, in which event Tenant shall be obligated to promptly deposit with
Landlord the amount necessary to restore the Security Deposit to its original
amount and failure to restore the Security Deposit promptly after demand by
Landlord shall constitute an Event of Default. In the event Tenant does not
perform its obligations or to accept the Premises on the appropriate
Commencement Date provided herein, the Security Deposit shall not be deemed
liquidated damages, and Landlord may apply the Security Deposit to reduce
Landlord's damages, and such application of the Security Deposit shall not cure
Tenant's default or preclude Landlord from recovering from Tenant all additional
damages incurred by Landlord. Landlord shall not be required to keep the
Security Deposit separate from, and may commingle the Security Deposit with, its
general funds. Tenant shall not be entitled to any interest on the Security
Deposit, but Landlord may maintain the Security Deposit in one or more interest
bearing accounts and any accrued interest upon the Security Deposit shall be
deemed to accrue to the benefit of Landlord. Within sixty (60) days following
the expiration of the term of the Lease, as it may be extended pursuant to the
provisions hereof, Landlord shall return any Security Deposit (or the portion
thereof) not applied to a default. If Landlord transfers the Security Deposit to
any transferee of the Project or Landlord's interest therein, then such
transferee shall be liable for the return of the Security Deposit, and Landlord
shall be released from all liability for the return thereof upon providing
written notice to Tenant of the name and address of the transferee. No Mortgagee
shall be liable for the return of the Security Deposit unless the Mortgagee
actually receives the Security Deposit.
21. FORCE MAJEURE. Neither Landlord nor Tenant
shall be in default under this Lease to the extent such party is unable to
perform any of its obligations that can be performed (other than the payment of Rent or
inability to meet any other monetary obligations of Tenant under this Lease) on
account of any strike or labor problem, energy shortage, governmental
pre-emption or prescription, national emergency, or any other cause of any kind
beyond the reasonable control of the nonperforming party.
22. Intentionally
left blank.
23. NOTICES. All notices or other
communications hereunder shall be in writing and shall be deemed duly given if
delivered in person, by certified mail, return receipt requested, or by registered mail, postage
prepaid:
If to Landlord:
Best Property Fund, L.P.
C/▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Realty
Advisors, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
with simultaneous copies
to:
Best Property Fund, L.P.
C/O Transwestern Commercial
Services
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇
and
to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ Greenhouse List &
▇▇▇▇▇▇▇ LLP
Granite Building, Second
Floor
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. List, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and if to
Tenant, at Tenant's Address for Notices stated in Part I of this Lease with a
copy to:
Krendl Krendl ▇▇▇▇▇▇▇▇ &
Way
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Esq.
Telephone: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇)▇▇▇-▇▇▇▇
Landlord
may also give notice to Tenant by telecopier at the number shown in Item 20 of
Part I of this Lease. The party to receive notices and the place notices are to
be sent for either Landlord or Tenant may be changed by notice given pursuant to
the provisions of this Section 23.
24. QUIET POSSESSION. Landlord
covenants that if Tenant pays the rent and performs all of the provisions
specified in this Lease to be performed by Tenant, Tenant shall, for the term of
this Lease, freely, peaceably and quietly occupy and enjoy the fill possession
of the Premises without molestation or hindrance by Landlord or its Agent,
subject to the rights of any mortgage holders, Landlords under any ground lease,
rights under protective covenants, the effect of any applicable laws, and any
title encumbrances of record with respect to the Land. .
25. REAL ESTATE BROKER. Landlord
and Tenant each represent and warrant one to another that neither of them has
employed any broker in carrying on the negotiations, or had any dealings with
..any broker, relating to this Lease, other than the Broker(s) identified in Part
I of this Lease. The Broker(s) identified in Part I of this Lease shall not be
entitled to any commission from Landlord arising out of any future
modifications, amendments, extensions or renewals of this Lease or expansions of
the Premises. Landlord shall indemnify and hold Tenant harmless, and Tenant
shall indemnify and hold Landlord harmless, from and against any claim or claims
for brokerage or other commission arising from or out of any breach of the
foregoing representation and warranty by the respective indemnitor.
26. UNRELATED BUSINESS INCOME. If
Landlord is advised by its counsel at any time that any part of the payments by
Tenant to Landlord under this Lease may be characterized as unrelated business
income under the United States Internal Revenue Code and its regulations, then
Tenant shall enter into any amendment proposed by Landlord to avoid such income,
so long as the amendment does not require Tenant to make more payments or accept
fewer services from Landlord, than this Lease provides.
27. HAZARDOUS
MATERIALS.
27.1 Definition. For purposes
of this Lease, "Hazardous Materials" means any pollutants, flammable or
ignitable explosives, radioactive materials, or hazardous, toxic, corrosive or
dangerous waste, substances or related materials, exposure to which is
prohibited, limited or regulated by any federal, state, county, regional or
local authority or which, even if not so regulated, may or could pose a hazard
to the health and safety of the occupants of the Premises or the Project,
including, but not limited to, asbestos, lead-based paints, radon,
polychlorobiphenyls, petroleum products and byproducts, including, but not
limited to, underground storage tanks and other petroleum-related matters.
Hazardous Materials shall include substances defined or listed as "hazardous
substances," "hazardous materials," "hazardous wastes," "pollutants," "toxic
substances," "asbestos-containing materials" or similarly identified in the
Comprehensive Environmental Response, Compensation, and Liability Act, as now or
hereafter amended; in the Hazardous Materials Transportation Act, as now or
hereafter amended; in the Resource Conservation and Recovery Act, as now or
hereafter
amended;
in the Colorado Asbestos Control Act, 25-7-501, et seq., C.R.S., as now or
hereafter amended; and in any other federal, state or local statute, law,
ordinance, code, rule, regulation, order or decree regulating, relating to or
imposing liability or standards of conduct concerning any hazardous, toxic or
dangerous waste, substance or material; and shall include any substances or
mixture regulated under the Toxic Substance Control Act of 1976, as now or
hereafter amended; and any "toxic pollutant" or "pollutant" under the Clean
Water Act, as now or hereafter amended, or under the Colorado Water Quality
Control Act; or any hazardous air pollutant under the Clean Air Act, as now or
hereafter amended, and any "hazardous waste" as defined in. ▇▇-▇▇-▇▇▇ of the
Colorado Revised Statutes (collectively, the "Hazardous Materials
Laws").
27.2 Release Prohibited. Tenant
shall not cause or permit the storage, use, generation, release or disposition
of any Hazardous Materials in, on, or about the Premises or the Project by
Tenant, its agents, employees, or contractors; provided that Tenant shall be
permitted to store on the Premises, and use within the Premises small quantities
of those materials typically associated with the use of space for normal office
purposes (e.g., photocopier toner, typewriter correction fluids and typical
cleaning fluids) in compliance with all Hazardous Materials Laws. Tenant shall
not permit the Premises to be used or operated in a manner that may cause the
Premises or the Project to be contaminated by any Hazardous Materials in
violation of any Hazardous Materials Laws. Tenant shall immediately advise
Landlord in writing of (1) any and all enforcement, cleanup, remedial, removal,
or other governmental or regulatory actions instituted, completed, or threatened
pursuant to any Hazardous Materials Laws relating to any Hazardous Materials
affecting the Premises; and (2) all claims made or threatened by any third party
against Tenant, Landlord, or the Premises relating to damage, contribution, cost
recovery, compensation, loss, or injury resulting from any Hazardous Materials
on or about the Premises. Without Landlord's prior written consent, Tenant shall
not take any remedial action or enter into any agreements or settlements in
response to the presence of any Hazardous Materials in, on, or
about
the
Premises.
27.3 Indemnification. Tenant shall
be solely responsible for and shall defend, indemnify and hold Landlord, its
Agent, and employees harmless from and against all claims, costs, and
liabilities, including attorneys' fees and costs, arising out of or in
connection with Tenant's breach of its obligations in this Section. Tenant shall
be solely responsible for and shall defend, indemnify, and hold Landlord, its
Agent, and employees harmless from and against any and all claims, costs, and
liabilities, including attorneys' fees and costs, arising out of or in
connection with the removal, cleanup, and restoration work and materials
necessary to return the Premises and any other property of whatever nature
located on the Land to their condition existing prior to the appearance of
Tenant's Hazardous Materials on the Premises. Tenant's obligations under this
Section 27 will survive the expiration or other termination of this Lease or the
early termination of Tenant's right to occupy the Premises.
28. EXCULPATION. In the event
Landlord shall be in default under this Lease, and if as a consequence of such
default, Tenant shall recover a money judgment against Landlord, such judgment
shall be satisfied only out of the proceeds of sale received upon execution of
such
judgment
against the right, title and interest of Landlord in the Project as the same may
then be constituted and encumbered and Landlord shall not be liable for any
deficiency. In no event shall Tenant have the right to levy execution against
any property of Landlord other than its interests in the Project. Tenant shall
not have the right to offset or deduct the amount allegedly owed to Tenant
pursuant to any claim against Landlord from any rent or other sum payable to
Landlord. Tenant's sale remedy for recovering upon such claim shall be to
institute an independent action against Landlord. Tenant shall not seek the
consolidation of any such action brought by Tenant with any action brought by
Landlord hereunder. Tenant waives any and all claims arising under this Lease
against Landlord's officers, directors or employees.
29. SIGNS
AND ADVERTISEMENTS.
29.1 Tenant's Signs. No sign,
advertisement or notice shall be inscribed, painted, affixed or displayed on any
part of the outside or the inside of the Building, except with Landlord's prior
written consent and then only in such place, number, size, color and style
(i.e., Building standard lettering) as is authorized by Landlord. If any such
sign, advertisement or notice is exhibited without first obtaining Landlord's
written consent, Landlord shall have the right to remove the same, and Tenant
shall be liable for any and all expenses incurred by Landlord by the removal, as
additional rent.
29.2 Landlord's Signs. Landlord
shall display Tenant's name on the Building directory and at the entrance to the
Premises in the size and style of lettering used by Landlord, at Landlord's
expense.
30. TENANT'S
EQUIPMENT.
30.1 Electric Equipment. Tenant
shall not install or operate in the Premises any electrically operated equipment
or other machinery, other than typewriters, word processing machines, adding
machines, radios, televisions, tape recorders, dictaphones, bookkeeping
machines, copying machines, clocks, desktop personal computers, computer
services, telecopiers, microwave ovens and other business machines and equipment
normally employed for general office use which do not require high electricity
consumption for operation (except to the extent such equipment is installed in
accordance with approved plans for the tenant improvements in Exhibit B or
Alterations approved by Landlord as required by Article 5 of this Lease and for
which Landlord waived in writing Landlord's right to require additional payment
for the operation of such Equipment (the "Approved Equipment") without obtaining
the prior written consent of Landlord, who may condition such consent upon
payment by Tenant of additional rent reasonably calculated to compensate
Landlord for actual expenses incurred for additional consumption of electricity
and/or other utility services. Such additional rent shall be in addition to
Tenant's obligation to pay its proportionate share of increases in
Operating
Expenses.
30.2 Excess Electricity. Use If any
or all of Tenant's equipment that is "Approved Equipment" requires electricity
consumption in excess of the capacity of the electrical system installed by
Landlord in the Premises, all additional transformers, distribution panels and
wiring
that may
be required to provide the amount of electricity required for Tenant's equipment
shall be installed by Landlord at the cost and expense of Tenant. If Landlord
determines at any time, in Landlord's reasonable discretion, that Tenant is
using excess utilities based on the proportion of Tenant's use to the use of
such utility services by other tenants in the Building, or if Tenant's equipment
(including lighting) is to be consistently operated beyond the Normal Building
Hours, Landlord may install or require Tenant to install, at its option: (i) a
separate electric meter for the Premises at Tenant's sole cost and expense; or
(ii) a separate meter for the specific equipment that is causing Tenant's
excessive consumption of electricity at Tenant's sole cost and expense. Prior to
installation of a separate meter, Landlord shall notify Tenant of the
anticipated costs or charges associated with the installation of a separate
meter. In the event Landlord installs or requires to be installed a separate
meter for the Premises, Tenant shall then pay the cost of electricity it
consumes as recorded by such meter directly to the electric company, and an
appropriate adjustment shall be made to Tenant's proportionate share of
Operating Expenses to reflect Tenant's reduced consumption of electricity
because of such separate metering of the Premises. In the event the specific
equipment is separately metered, Tenant shall be billed periodically by Landlord
based upon such consumption and no adjustment shall be made to Tenant's
proportionate share of Operating Expenses. Landlord agrees that Tenant's
additional HVAC for Tenant's server room as detailed in the drawings prepared by
MOA Architectural Partnership dated February 14,2003, shall not be deemed
"Excess Electricity Usage".
30.3 Changes to Building Systems.
Tenant shall not install any equipment of any kind or nature whatsoever which
will or may necessitate any changes, replacements or additions to, or in the use
of, the water system, heating system, plumbing system, air-conditioning system,
fire safety system, security system, or electrical system of the-Premises or the
Project without first obtaining the prior written consent of Landlord. Business
machines and mechanical equipment belonging to Tenant which cause noise or
vibration that may be transmitted to the structure of the Building or to any
space therein to such a degree as to be objectionable to Landlord or to any
tenant in the Building shall be installed and maintained by Tenant, at Tenant's
expense, on vibration eliminators or other devices sufficient to eliminate such
noise and vibration.
30.4 Location of Equipment.
Landlord shall have the right to prescribe the weight and position of all heavy
equipment and fixtures, including, but not limited to, data processing
equipment, record and file systems, books and library materials, and safes which
Tenant intends to install or locate within the Premises. Tenant shall obtain
Landlord's prior review and approval before installing or locating heavy
equipment and fixtures in the Premises, and if installation or location of such
equipment or fixtures, in Landlord's opinion, requires structural modifications
or reinforcement of any portion of the Premises or the Project, Tenant agrees to
reimburse Landlord, as additional rent, for any and all costs incurred by
Landlord to make such required modifications or reinforcements, and such
modifications or reinforcements shall be completed prior to Tenant installing or
locating such equipment or fixtures in the Premises. Tenant shall reimburse
Landlord within thirty (30) days of receipt of any statement setting forth those
costs.
31. MISCELLANEOUS
PROVISIONS.
31.1 No Partnership. Nothing
contained in this Lease shall be deemed or construed to create a partnership or
joint venture of or between Landlord and Tenant, or to create any other
relationship between the parties hereto other than that of landlord and
tenant.
31.2 No Representations. by
Landlord. Neither Landlord nor any agent or employee of Landlord has made any
representations or promises with respect to the Premises or the Project except
as herein expressly set forth, and no rights, privileges, easements or licenses
are acquired by Tenant except as herein expressly set forth.
31.3 Waiver of Jury
Trial. Landlord and Tenant hereby waive trial by jury in any
action, proceeding or counterclaim brought by either of the parties hereto
against the other on or with respect to any matter whatsoever arising out of or
in any way connected with this Lease, the relationship of Landlord and Tenant
hereunder, Tenant's use or occupancy of the Premises, and/or any claim of injury
or damage.
31.4 Late Charges. If Tenant does
not pay any installment of Monthly Rent, additional rent, or other charge to be
paid by Tenant pursuant to this Lease within five (5) business days after the
same becomes due and payable, then Tenant shall pay a late charge equal to the
greater of two percent (2%) of the amount of such payment or Two Hundred Fifty
dollars ($250.00). In addition, such overdue payment shall bear interest at a
rate equal to two percent (2%) per month, accruing from the date such
installment or payment became due and payable to the date of payment thereof by
Tenant. Such late charge and interest shall constitute additional rent due and
payable to Landlord by Tenant upon the date of payment of the delinquent payment
referenced above.
31.5 Rules and Regulations. Tenant,
its agents and employees shall abide by and observe the rules and regulations
attached hereto as Exhibit C and such other reasonable rules and regulations or
amendments to the existing rules and regulations as may be promulgated from time
to time by Landlord for the operation and maintenance of the Project, which
other rules and regulations and amendments shall be consistent with the terms of
this Lease and general good business practices, provided a copy thereof is sent
to Tenant. Nothing contained in this Lease shall be construed to impose upon
Landlord any duty or obligation to endorse such rules and regulations, or the
terms, conditions or covenants contained in any other lease as against any other
tenant, and Landlord shall not be liable to Tenant for violation of the same by
any other tenant, any other tenant's employees, agents, business invitees,
licenses, customers, clients, family members or guests. Landlord shall not
discriminate against Tenant in the enforcement of any rule or
regulation.
31.6 Financial Statements. Tenant
agrees, at any time and from time to time, upon not less than ten (10) days
prior written notice by Landlord, to deliver to Landlord the most current
financial statements of Tenant and any guarantor of this Lease, and written
evidence of ownership or ownership interest if Tenant is other than a sole
proprietor, together with such other information regarding the financial
condition of such persons or entities as Landlord may
reasonably
request. All such statements and information furnished to Landlord shall be
true, correct and complete. Landlord agrees to maintain such statements and
information in confidence and not to use or disclose such statements or
information to any third parties not associated with Landlord or having an
interest in this Lease.
31.7 Rentable Area. The rentable
square footage figures for the Building and the Premises set forth in Part I of
this Lease have been computed in accordance with generally accepted
architectural standards. The rentable area of the Premises is hereby stipulated
for all purposes hereof to be the number of rentable square feet stated in Part
I, Item 3 of the Lease, whether the same should be more or less as a result of
minor variations resulting from actual construction and completion of the
Premises for occupancy. If there is a significant change in the aggregate
Rentable Area as a result of an addition to the Building or the Project, partial
destruction thereof, modification to building design, or similar circumstance
which causes a reduction or increase thereto on a permanent basis, Landlord
shall make such adjustments in the computations as shall be necessary to provide
for any such change.
31.8 Intentionally
Left Blank.
31.9 Waiver. If either party
institutes legal or administrative proceedings against the other party and a
compromise or settlement thereof is made, the same shall not constitute a waiver
of either party's obligations to comply with any covenant, agreement or
condition, nor of any either party's rights hereunder, except to the extent
expressly agreed in the compromise or settlement. No waiver by either party of
any breach of any covenant, condition, or agreement specified herein shall
operate as an invalidation or as a continual waiver of such covenant, condition
or agreement itself, or of any subsequent breach thereof. No payment by Tenant
or receipt by Landlord (or any party designated by Landlord to receive any
payments of rent) of a lesser amount than the amount of rent due Landlord shall
be deemed to be other than payment on account of the earliest stipulated rent.
Acceptance of Monthly Rent or any other amounts paid by Tenant shall not be
construed as a waiver of any or all of Landlord's rights and remedies. In
addition, no endorsement or statement on any check or letter accompanying a
check for payment of such rent shall be deemed an accord and satisfaction.
Landlord, or any party designated by Landlord, may accept such check or payment
without prejudice to Landlord's right to recover the balance of such rent or to
pursue any other remedy provided for in this Lease or in the governing law of
the jurisdiction in which the Building is located. Acceptance of rent by
Landlord from anyone other than Tenant shall not be construed as a waiver by
Landlord, nor as a release of Tenant, but the same shall be taken to be a
payment on account of Tenant. No re-entry by Landlord, and no acceptance by
Landlord of keys from Tenant, shall be considered an acceptance of a surrender
of the Lease..
31.10 Landlord's Entry. Entry in the
Premises for inspections, repairs, alterations, improvements and installations
by Landlord, its Agent, employees or contractors pursuant to Section 11 and the
exercise by Landlord of Landlord's rights reserved in Section 11 shall not
constitute a breach by Landlord of this covenant, nor entitle Tenant to any
abatement or reduction of rent. In addition, planned activities of Landlord,
whether in the form of renovation, redecoration or rehabilitation of any area of
the Project, including the lobby, common areas, and
any
of the surrounding public spaces by Landlord or in the form of organized
activities, public or private, shall not be deemed a violation by Landlord of
Landlord's covenant of quiet enjoyment benefiting Tenant.
31.11 No Option. The submission of an
unsigned copy of this document to Tenant shall not constitute an offer or option
to lease the Premises. This Lease shall become effective and binding only upon
execution and delivery by both Landlord and Tenant.
31.12 Use of Certain Words. Feminine
or neuter pronouns shall be substituted for those of the masculine form, and the
plural shall be substituted for the singular number, in any place or places
herein in which the context may require such substitution or substitutions. The
term "Landlord" means only the owner of the Project and the Landlord's interest
in this Lease from time to
time. The words "re-entry" and "re-enter" are not restricted to their technical
legal meaning. The words "including" and similar words shall mean "including
without limitation." References to "Items" shall mean the numbered paragraphs in
Part I of this Lease. References to "Sections" shall mean the numbered sections
(and all subsections thereto) in Part I1 of
this Lease or the Addendum, as indicated by the context of such reference.
References to "Paragraphs" shall mean the numbered paragraphs (and all
subparagraphs thereto) in the Work Letter attached to this Lease.
31.13 Benefit and Burden. The terms and provisions
of this Lease shall be binding upon and shall inure to the benefit of the
parties hereto and, subject to Section 17, each of their respective
representatives, successors and permitted assigns.
31.14 Bankruptcy.
(1) The following shall be Events of
Bankruptcy under this Lease: (i) Tenant's or any guarantor's becoming insolvent,
as that term is defined in Title 11 of the United States Code (the "Bankruptcy
Code"), or under the insolvency laws of any state (the "Insolvency Laws"); (ii)
appointment of a receiver or custodian for any property of Tenant or any
guarantor; (iii) the filing of a voluntary petition by Tenant or any guarantor
under the provisions of the Bankruptcy Code or Insolvency Laws; (iv) the filing
of an involuntary petition against Tenant or any guarantor as the subject debtor
under the Bankruptcy Code or Insolvency Laws, which either (a) is not dismissed
within 60 days of filing, or (b) results in the issuance of an order for relief
against the debtor; (v) Tenant's or any guarantor's making or consenting to an
assignment for the benefit of creditors or a composition of creditors; or (vi)
Tenant or any Guarantor of this Lease shall admit in writing its inability to
pay its debts as they mature.
(2)
Upon the occurrence of an Event of Bankruptcy, Landlord shall have all
rights and remedies available pursuant to Section 13, provided, however, that
Landlord shall not exercise such rights and remedies while a case in which
Tenant is the subject debtor under the Bankruptcy Code is pending, if the
Bankruptcy Code prohibits the exercise of such rights and
remedies.
31.15 Time of the Essence. With
respect to each of the parties obligations under this Lease, time is of the
essence.
3
1.16 Savings Clause. If any provision of this
Lease or the application thereof to any person or circumstance is to any extent
held invalid, then the remainder of this Lease or the application of such
provision to persons or circumstances other than those as to which it is held
invalid shall not be affected thereby, and each provision of this Lease shall be
valid and enforced to the fullest extent permitted by law.
31.17 Corporate Tenant. If Tenant is or will be a
corporation or other business entity, the persons executing this Lease on behalf
of Tenant hereby covenant, represent and warrant that Tenant is duly formed and
duly qualified and authorized to do business in the State of Colorado; and that
the person or persons executing this Lease on behalf of Tenant are duly
authorized to sign and execute this Lease on behalf of Tenant. Upon request of
Landlord to Tenant, Tenant shall deliver to Landlord documentation satisfactory
to Landlord evidencing Tenant's compliance with the provisions of this Section
31.17. Further, Tenant agrees to promptly execute all necessary and reasonable
applications or documents c o d i n g such registration as requested by Landlord
or its representatives, or as required by the State of Colorado or other
applicable authority to permit the issuance of necessary permits and
certificates for Tenant's use and occupancy of the Premises. Any delay by Tenant
or if Tenant does not submit such application or document so executed shall not
serve to delay the Commencement Date or delay or waive Tenant's obligations to
pay Rent hereunder.
31.18 Joint and Several
Liability. If two or more
individuals, corporations, partnerships or other business associations (or any
combination of two or more thereof) shall sign this Lease as Tenant, the
liability of each of them shall be joint and several. In like manner, if Tenant
is a partnership or other business association the members of which are, by
virtue of statute or general law, subject to personal liability, the liability
of each individual who was, is or becomes a member of such partnership or
association at any time from the date of execution of this Lease to and
including the expiration or earlier termination of the term of this Lease, shall
be joint and several.
31.19 Landlord's Right to Cure. Landlord shall not be in
default under this Lease unless Landlord does not perform a material obligation
required of Landlord within a reasonable time, but not later than thirty (30)
days after written notice describing the default by Tenant to Landlord and to
the holder of any first mortgage or deed of trust covering the Premises whose
name and address has previously been furnished to Tenant in writing, specifying
the obligation Landlord has not performed; provided, however, that if the nature
of Landlord's obligation is such that more than thirty (30) days are required
for performance, Landlord shall not be in default if Landlord or any such
mortgagee commences performance within such 30-day period and thereafter
diligently prosecutes it to completion. Tenant further agrees that if Landlord
shall not have cured the default within the time provided, then any holder of a
ground lease, deed of trust, mortgage or security instrument now or hereafter
placed upon the Project (a "Mortgagee") shall have an additional thirty (30)
days following a second notice from Tenant within which to cure the default. If
the default cannot be cured within that time, Mortgagee shall have
such
additional
time as may be necessary provided that within the thirty (30) days, Mortgagee
has commenced and is diligently pursuing the remedies necessary to cure such
default (including, but not limited to, commencement of foreclosure proceedings,
if necessary, to effect its cure). Tenant waives any and all claims to
consequential damages against Landlord that may arise in connection with this
Lease or the Project.
31.20 Light and Air Rights..
Landlord does not grant in this Lease any rights to light and air in connection
with Project. Landlord reserves to itself, the Land, the Building below the
improved floor of each floor of the Premises, the Building above the ceiling of
each floor of the Premises, the exterior of the Premises and the areas on the
same floor outside the Premises, along with the areas within the Premises
required for the installation and repair of utility lines and other items
required to serve other Tenants of the Building
31.21 Governing Law. This Lease and
the rights and obligations of Landlord and Tenant hereunder shall be governed by
the laws of the State of Colorado.
31.22 Business Day/Working Day. The
term "business day" and "working day" are terms describing each calendar day
Monday through Friday except any holiday identified specifically or generically
in Exhibit "I?' falling on one of such calendar days.
31.23 No Construction Against Drafting
Party. The rule of construction that ambiguities are resolved against the
drafting party shall not apply to this Lease.
31.24 Entire Agreement. All Exhibits
referred to in this Lease and any Addendum attached to this Lease are hereby
incorporated into this Lease as if fully set forth herein. This Lease, together
with all Exhibits referred to in this Lease, contains and embodies .the entire
agreement of the parties hereto, and no representations, inducements, or
agreements, oral or otherwise, between the parties not contained and embodied in
this Lease and the Exhibits shall be of any force or effect, and the same may
not be modified, changed or terminated in whole or in part in any manner other
than by an agreement in writing duly signed by all parties hereto. All
references in this Lease to Sections are intended to refer to sections in this
Lease and all references to Exhibits or refer to exhibits attached to this
Lease.
31.25 Inducement Recapture in Event of
Default. Any agreement by Landlord for free or abated rent or other
charges applicable to the Premises, or for the giving or paying by Landlord to
or for Tenant of any cash or other bonus, inducement or consideration for
Tenant's entering into this Lease, including, but not limited to, any
unamortized tenant finish allowance, all of which concessions are hereinafter
referred to as "Inducement Provisions" shall be deemed conditioned upon Tenant's
full and faithful performance of all of the terms, covenants and conditions of
this Lease to be performed or observed by Tenant during the term hereof as the
same may be extended. Upon the occurrence of a Default (as defined in Article
12) of this Lease by Tenant, any such Inducement Provision shall automatically
be deemed deleted from this Lease and of no W e r force or effect, and any rent,
other charge, bonus, inducement or consideration theretofore abated, given or
paid by Landlord under such an Inducement Provision shall be immediately due and
payable by Tenant to Landlord, and recoverable by Landlord, as
additional
rent due under this Lease, notwithstanding any subsequent cure of said event of
default by Tenant. The acceptance by Landlord of rent or the cure of the event
of default which initiated the operation of this Article. 31.25 shall not be
deemed a waiver by Landlord of the provisions of this Article 3 1.25 unless
specifically so stated in writing by Landlord at the time of such
acceptance.
31.26 Satellites/Antennas. Tenant,
at its sole cost and expense, shall have the right to erect, install and operate
for its own use only a satellite business terminal system ("Satellite Business
Terminal System") and related cabling necessary for its proper operation on the
roof and in the interior of the Building. Prior to installation or construction
of the Satellite Business Terminal System, Landlord shall approve, which
approval shall not be unreasonably withheld or delayed, the proposed design,
location and construction thereof. The installation of any Satellite Business
Terminal System by Tenant hereunder shall fully comply with any applicable
covenants, conditions and restrictions of any local or state ordinance and any
other reasonable criteria established for the Building by Landlord. The
installation of any Satellite Business Terminal System on the Premises or the
Building by or for Tenant shall be subject to the provisions of Article 5 and
Tenant shall, upon expiration or earlier termination of this Lease or any
extensions thereof or the early termination of Tenant's right to occupy the
Premises, remove all components of the Satellite Business Terminal System and
repair and restore any damage caused by their installation or removal. Landlord
shall not charge rent for the use of any roof space by Tenant. Tenant may not
permit any other person to use the Satellite Business Terminal System nor shall
the Satellite Business Terminal System be installed or located in any location
not previously approved by Landlord, whether within the interior of the Building
or on the roof without the prior written consent of Landlord which consent shall
be in Landlord's sole and absolute discretion.
LANDLORD:
BEST PROPERTY FUND, L.P., a
Delaware
limited partnership
By: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Realty
Advisors, Inc., a
Delaware corporation, as its
Agent
By: /s/ ▇▇▇▇▇▇
▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇▇▇▇▇
Title: Vice
President
TENANT:
PREMIER DATA SERVICES, INC.,
a
Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇
Title: President &
CEO
ADDENDUM
1. Extension
Option, Subject to Subsection b and d below, Tenant may at its option extend the
Term of this Lease for two (2) successive periods of three (3) years each
("Renewal Option”). Each such period is called a "Renewal Term", and the first
such three (3) year period is called the "First Renewal Term”
and the second such three (3) year period is called the "Second Renewal Term".
Each Renewal Term shall be upon the same terms contained in this Lease of this
Lease and except for the payment of Monthly Rent during the Renewal Term; and
any reference in the Lease to the "Term" of the Lease shall be deemed to include
any Renewal Term and apply thereto, unless it is expressly provided otherwise.
Tenant shall have no additional extension options. If Tenant does not properly
exercise its right to extend the Lease for the First Renewal Term, any future
options to renew or extend the Term of the Lease hereunder shall be
cancelled.
a. The
Monthly Rent during a Renewal Term shall be the Market Rate (defined
hereinafter) for such space for a term commencing on the first day of the
Renewal Term. "Market Rate" shall mean the then prevailing market rate for a
comparable term commencing on the first day of the Renewal Term for tenants of
comparable size and creditworthiness for comparable second generation space in
the Building and other first class office buildings in the vicinity of the
Building.
b. To exercise any
option, Tenant must deliver an initial nonbinding notice to Landlord not more
than twelve (12) months nor less than nine (9) months prior to the expiration of
the initial Term of this Lease, or the first Renewal Term, as the case may be.
Thereafter, the Market Rate for the particular Renewal Term shall be calculated
pursuant to Subsection c below and Landlord shall inform Tenant of the Market
Rate. Such calculations shall be final and shall not be recalculated at the
actual commencement of such Renewal Term. If Tenant does not timely give its
initial nonbinding notice, Tenant will be deemed to have waived its option to
extend.
c. Market Rate shall be
determined as follows:
(i) If Tenant provides
Landlord with its initial nonbinding notice of exercise pursuant to Subsection B
above, then at some point between twelve (12) and nine (9) months prior to the
commencement of the applicable Renewal Term (or, at Landlord's election, at an
earlier point), Landlord shall calculate and inform Tenant of the Market Rate.
Within seven (7) days of receipt of Landlord's notice stating the Market Rate,
Tenant shall: (1) notify Landlord in writing of its binding exercise of its
option to extend which, shall state Tenant's acceptance of the Market Rate or
(2) notify Landlord in writing of its binding exercise of its option to extend
which shall state both Tenant's rejection of Landlord's determination of the
Market Rate and Tenant's good faith estimate of the Market Rate. If Tenant does
not provide a written notice under clause (1) or (2) in the preceding sentence,
Tenant will be deemed to have waived all remaining options to renew or extend
the time of the Lease. If Tenant rejects Landlord's determination of the Market
Rate, but does not specify its good faith estimate of the Lease for
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2-19-03 Addendum
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Market
Rate, Tenant shall be deemed to have exercised its option to extend and accepted
the Landlord's Market Rate. If Tenant rejects the Market Rate as calculated by
Landlord, Landlord and Tenant shall commence negotiations to agree upon the
Market Rate. If Landlord and Tenant are unable to reach agreement within
twenty-one (21) days after Landlord's receipt of Tenant's notice of rejection
(the "Market Rate Negotiation Period"'), then the Renewal Option shall be null
and void and the Lease shall terminate as of the expiration of the Lease Term or
the First Renewal Term, as the case may be.
d. Tenant's
option to extend this Lease is subject to the conditions that: (i) on the date
that Tenant delivers its binding notice exercising an option to extend, Tenant
is not in material default under this Lease after the expiration of any
applicable notice and cure periods, and (ii) Tenant shall not have assigned the
Lease, or sublet any portion of the Premises under a sublease.
2. Right of Expansion. Provided
that no material event of default or sublease has ever occurred under any term
or provision contained in the Lease and no condition exists which with the
passage of time or the giving of notice or both would constitute an event of
default either on the date Tenant exercises its Expansion Option (as defined
herein) or upon the commencement of the Expansion Term (as defined herein) and
provided that Tenant has continuously occupied the Premises for the Permitted
Use during the Lease Term, and subject to any extension, expansion, option or
modification rights granted to other tenants of Landlord in the Building prior
to the date of this Lease, Tenant shall have the right and option (the
"Expansion Option") during the first year of the Lease Term only, to expand the
Premises to include up to an additional 3,000 rentable square feet of contiguous
space to the Premises for use by Tenant ("Expansion Space") for the remainder of
the then remaining Lease Term (the "Expansion Term") under the same terms,
conditions and covenants contained in this Lease, except that (a) no abatements,
inducements or other concessions, if any, applicable to the Lease Term shall
apply to the Expansion Term, provided, however, Landlord agrees, at its sole
cost and expense, to "turnkey" the Expansion Space in accordance with working
drawings to be completed by Landlord's architect at the time of the exercise of
the Expansion Option by Tenant so as to provide for the construction of tenant
improvements in the Expansion Space which tenant improvements shall be
consistent, in terms of costs and materials used, with the original tenant
improvements constructed in the Premises pursuant to the Work Letter attached
hereto as Exhibit B; (b) the Base Rent shall be equal to the then Base Rent in
effect for the Premises for the remainder of the Lease Term; (c) Tenant shall
have no further Expansion Option; and (d) monthly parking charges will reflect
the existing rate effective at the time of the commencement of the Expansion
Term. To exercise its Expansion Option hereunder, Tenant shall provide written
notice ("Expansion Notice") to Landlord at any time within the first year of the
Lease Term. Failure by Tenant to provide the Expansion Notice within the time
limits set forth herein shall constitute a waiver of such Expansion
Option.
3. Right of First Refusal.
Provided that no material event of default or sublease has ever occurred under
any term or provision contained in the Lease and no condition exists which with
the passage of time or the giving of notice or both would constitute an event of
default either on the date Tenant exercises its First Refusal Right (as defined
herein) or upon the commencement of the lease term for the ROFR Space (as
defined herein) and provided that Tenant has continuously
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2-19-03 Addendum
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occupied
the Premises for the Permitted Use during the Lease Term, if during the Term of
this Lease, space on the second floor of the Building is available to lease,
which shall exclude prior rights granted to other tenants, renewals of existing
leases or expansion options (hereinafter the "ROFR Space"), prior to leasing the
same to any third party, Landlord shall offer to lease such space to Tenant upon
the terms and conditions as proposed by such third party and acceptable to
Landlord (the "First Refusal Right").
a. Tenant
shall have a period of five (5) business days after receipt of Landlord's notice
in which to accept the Landlord's offer. If Tenant does not timely exercise its
rights with respect to the ROFR Space specified in Landlord's notice, Landlord
may lease the ROFR Space to any third party without complying with the
provisions of this paragraph and affording Tenant the right to exercise the
First Refusal Right with respect to the ROFR Space specified in Landlord's
notice.
b. If
Tenant elects to exercise the offer, Landlord and Tenant shall execute and
deliver an amendment to this Lease reflecting the terms of the ROFR Space, which
amendment will be executed and delivered promptly after Tenant exercises the
First Refusal Right.
c. Tenant's First
Refusal Right shall be available only if, as of the date of Landlord's notice of
offer, Tenant (i) shall not be in material default under the Lease; (ii) shall
not have sublet more than twenty-five percent (25%) of the Premises nor assigned
its interest in the Lease nor abandoned the Premises.
d. The base rent
applicable during the Lease term shall be a rate Landlord would lease the ROFR
Space to a third party as of the date of Landlord's notice, for a lease term
scheduled to commence when the ROFR Space will be added to the
Premises.
e. Tenant must take all
of the ROFR Space offered and may not elect to lease only a part
thereof,
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2-19-03 Addendum
-- Page 3
EXHIBIT
"A"
FLOOR
PLAN, PREMISES
(To
Be Attached)
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Final 2-19-03 A-1
EXHIBIT
"B"
WORK
LETTER
Landlord
agrees to have certain tenant improvements done in the Premises and Landlord
agrees to deliver the Premises to the Tenant and construct the tenant
improvements at its sole cost ("Landlord Work") in reasonable accordance with
the plans and specifications approved by Landlord and Tenant dated February 14,
2003, prepared by MOA Architectural Partnership ("Approved Plans and
Specifications"). The Approved Plans and Specifications are subject to further
revisions as agreed upon by Landlord and Tenant. Landlord shall select the
contractor to complete the Landlord Work per the Approved Plans and
Specifications, and except as set forth herein, shall have no further
obligations thereafter with respect to repair or replacement of items in the
Premises except as set forth in the Lease. Landlord shall have no further
obligation with regard to tenant improvements within the Premises. Landlord
shall cause the Landlord Work to be Substantially Complete (as defined in
Section 3.2 of the Lease) prior to the Commencement Date. Prior to the
Commencement Date, Tenant will conduct a walk-through inspection of the Premises
with Landlord and prepare a punch-list of items needing additional work by
Landlord. Other than the items specified in the punch-list, by taking possession
of the Premises, Tenant will be deemed to have accepted the Premises in their
condition on the date of delivery of possession and to have acknowledged that
Landlord has performed Landlord's Work as required by this Work Letter and that
there are no items needing additional work or repair. The punch-list will not
include any damage to the Premises caused by Tenant's move-in or early access,
if permitted. Damage caused by Tenant will be repaired or corrected by Landlord
at Tenant's expense. Tenant acknowledges that neither Landlord nor its agents or
employees have made any representations or warranties as to the suitability or
fitness of the Premises for the conduct of Tenant's business or for any other
purpose, nor has Landlord or its agents or employees agreed to undertake any
alterations or construct any tenant improvements to the Premises except as
expressly provided in this Lease and this Work Letter. If, following the
walk-through, Tenant does not submit a punch-list to Landlord prior to the
Commencement Date, it will be deemed that there are no items needing additional
work or repair. Landlord's contractor will complete all reasonable punch-list
items within fourteen (14) days after the walk-through inspection or as soon as
practicable after such walk-through. All of Landlord's Work shall be performed
by Landlord during regular business hours.
The Point
Final 2-19-03 B-1
EXHIBIT
"C"
RULES
AND REGULATIONS
1. The
sidewalks, entrances, halls, corridors, elevators, and stairways of the Project
shall not be obstructed or used as a waiting or lounging place by Tenant, or its
agents, servants, employees, invitees, licensees, and visitors.
2. Landlord
reserves the right to refuse admittance to the Building or the Project at any
time other than between the hours of 7:00 a.m. and 6:00 p.m.
weekdays, or 8:00 a.m. to 1 :00 p.m. on Saturdays, to any person not producing
either a key to the Premises or a pass issued by Landlord. In case of invasion,
riot, public excitement or other commotion, Landlord also reserves the right to
prevent access to the Building during the continuance of same. Landlord shall in
no case be liable for damages for the admission or exclusion of any person to or
from the Building or the Project.
3. Landlord
will furnish each tenant with two (2) keys to each door lock in the Premises,
and Landlord may make a reasonable charge for any additional keys requested by
Tenant. No tenant shall have any keys made for the Premises; now shall any
tenant alter any lock, or install new or additional locks or bolts on any door
without the prior written approval of Landlord. If a lock alteration or
installation is made, the new lock must accept the master key for the Building.
Each tenant, upon the expiration or termination of its tenancy or the early
termination of the right to occupy premises, shall deliver to Landlord all keys
in such tenant's possession for all locks and bolts in the
Building.
4. In
order that the Project may be kept in a state of cleanliness, each tenant shall,
during the term of each respective Lease, permit Landlord's employees (or
Landlord's agent's employees) to take care of and clean the Premises and tenant
shall not employ any person(s) other than Landlord's employees (or Landlord's
agent's employees) for such purpose. No tenant shall cause any unnecessary labor
by reason of such tenant's carelessness or indifference in the preservation of
good order and cleanliness of the Premises Tenant will see that:
a. the windows are
closed;
b. the doors securely
locked; and
c. all water faucets
and other utilities are shut off (so as to prevent waste or damage), each day
before leaving the Premises.
In the event Tenant must dispose of
crates, boxes, etc., which will not fit into office waste paper baskets, it will
be the responsibility of Tenant to dispose of same. In no event shall Tenant set
such items in the public hallways or other areas of the Project or garage
facility, excepting Tenant's own Premises, for disposal.
The Point
Final 2-19-03 C-1
5. Landlord
reserves the right to prescribe the date, time, method and conditions that any
personal property, equipment, trade fixtures, merchandise and other similar
items shall be delivered to or removed from the Building. No iron safe or other
heavy or bulky object shall be delivered to or removed from the Building, except
by experienced safe men, movers or riggers approved in writing by Landlord. All
damage done to the Building by the delivery or removal of such items, or by
reason of their presence in the Building, shall be paid to Landlord, immediately
upon demand, by the Tenant, by, through or under whom such damage was done.
There shall not be used, in any space, or in the public halls of the Building,
either by Tenant or by jobbers or others, in the delivery or receipt of
merchandise, any hand-trucks except those equipped with rubber
tires.
6. The walls,
partitions, skylights, windows, doors, and transoms that reflect or admit light
into passageways or into any other part of the Project shall not be covered or
obstructed by any tenant.
7. The
toilet-rooms, toilets, urinals, wash bowls and water apparatus shall not be used
for any purpose other than for those for which they were constructed or
installed, and no sweeping, rubbish, chemicals, or other unsuitable substances
shall be thrown or placed therein. The expense of any breakage, stoppage or
damage resulting from violations of this rule by Tenant or by Tenant's agents,
servants, employees, invitees, licensees, or visitors, shall be borne by
Tenant.
8. No sign, name,
placard, advertisement, or notice visible from the exterior of any Premises,
shall be inscribed, painted or affixed by any tenant on any part of the Building
without the prior written approval of Landlord.
9. No
signaling, telegraphic, or telephonic instruments or devices, or other wires,
instruments or devices, shall be installed in connection with any Premises
without the prior written approval of Landlord. Such installations, and the
boring or cutting for wires, shall be made at the sole cost and expense of
Tenant and under the control and direction of Landlord. Landlord retains, in all
cases, the right to require:
a. the installation and
use of such electrical protecting devices that prevent the transmission of
excessive currents of electricity into or through the Building;
b. the changing of
wires and of their installation and arrangement underground or otherwise as
Landlord may direct; and
c. compliance on the
part of all using or seeking access to such wires with such rules as Landlord
may establish relating thereto. All such wires used by Tenant must be clearly
tagged at the distribution boards and junction boxes and elsewhere in the
Building, with (x) the number of the Premises to which said wires lead, (y) the
purpose for which said wires are used, and (2) the name of the company operating
same.
The Point
Final 2-19-03 C-2
10. Tenant,
its agents, servants, or employees shall not:
a. go upon the roof of
the Building;
b. use any additional
method of heating or air conditioning the Premises;
c. sweep or throw any
dirt or other substance from the Premises into any of the halls, corridors,
elevators, or stairways of the Building;
d. bring in or keep in
or about the Premises any vehicles or animals of any kind;
e. install any radio or
television antenna or any other device or item on the roof, exterior walls,
windows, or window ▇▇▇▇▇ of the Building;
f. place objects
against glass partitions, doors, or windows which would be unsightly from the
interior or exterior of the Building; or
g. use any portion of
the Premises: (i) for the storage of merchandise for sale to the general public,
(ii) for lodging or sleeping, (iii) for cooking (except that the use by any
tenant of Underwriter's Laboratory equipment for brewing coffee, tea and similar
beverages or the use of by Tenant of a similarly approved microwave oven shall
be permitted, provided that such use is in compliance with law), or (iv) for the
selling or display of any goods, items or merchandise, either at wholesale or
retail. Tenant, its agents, servants and employees, invitees, licensees, or
visitors shall not permit the operation of any musical or sound producing
instruments or device which may be heard outside the Premises, Building or
garage facility, or which may emit electrical waves which will impair radio or
television broadcast or reception from or into the Building.
11. Tenant
shall not store or use in any Premises:
a. any ether, naptha,
phosphorous, benzol, gasoline, benzine, petroleum, crude or refined earth or
coal oils, kerosene or camphene;
b. any other flammable,
combustible, explosive or illuminating fluid, gas or material of any kind;
or
c. any other fluid, gas
or material or any kind having an offensive odor.
12. No
canvassing, soliciting, distribution of hand bills or other written material, or
peddling shall be permitted in the Building, and Tenant shall cooperate with
Landlord in prevention and elimination of same.
The Point
Final 2-19-03 C-3
13. Tenant shall
give Landlord prompt notice of all accidents to, or defects in, air conditioning
equipment, plumbing, electrical facilities, or any part or appurtenances of the
Premises.
14. The
landscaped grounds adjacent to the Building shall be used for the enjoyment of
Tenant, its agents, servants, and employees so long as such parties conduct
themselves in a manner so as not to disturb, destroy, or litter said grounds.
All parties using the grounds shall comply with all laws, ordinances, and rules
and regulations of the city and/or county in which the Building
lies.
15. No
furniture, equipment or other bulky matter of any description shall be delivered
into the Building or carried in the elevators except in the manner and during
the times approved by Landlord. Tenant shall obtain Landlord's determination of
the appropriate time and manner prior to moving the property into the Building.
All moving of furniture, equipment and other material within the public areas
shall be under the direct control and supervision of Landlord who shall,
however, not be responsible for any damage to or charges for moving the
same.
Landlord shall have the sole right to determine the load capacities of the
elevators of the Building
and to determine if Tenant's property can be safely transported in the
elevators. Tenant agrees
promptly to remove from the sidewalks adjacent to the Building any of Tenant's
furniture, equipment
or other material there delivered or deposited.
The Point
Final 2-19-03 C-4
EXHIBIT
"D"
LEASE
COMMENCEMENT RIDER
LANDLORD: BEST
PROPERTY FUND, L.P., a Delaware limited partnership
TENANT: PREMIER
DATA SERVICES, INC., Delaware corporation
This Lease Commencement Rider is made
by Landlord and Tenant pursuant to that certain Office Lease (the "Lease”)
entered into as of 17, March for the Premises known as Suite 203 in the building
known as The Point at Inverness (the "Premises"). This Rider constitutes a
supplementary addendum to the Lease as contemplated by Section 0 of the
Lease.
1. Lease Commencement
Date. Landlord and Tenant acknowledge and agree that the Commencement
Date as established pursuant to Section 0 of the Lease is _______. The
Lease Term will expire on ___, ___.
2. Acceptance of
Premises. Tenant has inspected and examined the Premises and Tenant finds
the Premises acceptable and satisfactory in all respects in their current, "as
is" condition, subject to the provisions of Section 3.3 of the Lease. 3.
Incorporation in Lease. This Rider is incorporated into the Lease, and forms a
supplementary and integral part thereof. This Rider shall be construed and
interpreted in accordance with all other terms and provisions of the Lease for
all purposes.
TENANT:
PREMIER DATA SERVICES,
INC.,
A Delaware
corporation
By: /s/ ▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇
Title: President &
CEO
D-1
LANDLORD
BEST PROPERTY FUND, L.P., a
Delaware
limited partnership
By: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Realty
Advisors, Inc., a
Delaware corporation, as its
Agent
By: /s/ ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇, Vice President
D-2
EXHIBIT
"E”
FORM
OF TENANT ESTOPPEL CERTIFICATE
TO:
_________________________________________________________________________
RE: Property
Address: ______________________________________________________
Lease Date:
________________________________________________________________
Between
____________________________________________________ ("Landlord")
and
("Tenant")
______________________________________________________________
Square Footage Leased:
___________________________________________________
Suite No.
______________________________________________________________
Floor No.
______________________________________________________________
The
undersigned Tenant under the above-referenced lease ("Lease"), certifies to
Owner and ___________ , their successors and assigns, and for their respective
lenders, the following:
1. The Lease has not been canceled,
modified, assigned, extended or amended except as set forth in thefollowing
documents:________________________________________
2. Rent has been paid to the first day
of the current month and all additional rent has been paid and collected
in a current manner. There is no prepaid rent, except $ __________ and the
amount of security deposit
is _______________
3. Tenant took possession of the leased
premises on _________________________ and commenced topay rent on
______________________. Rent is currently payable in the amount of
$__________monthly (subject to the following base year and operating cost
adjustment provisions, if
any:_______________________________________________________________
4. The Lease terminates on
_________________________and Tenant has the following renewaloption(s):
________________________________________________________
5. All work to be performed for Tenant
under the Lease has been performed as required and has beenaccepted by Tenant,
except_______________________________________
E-1
6. The Lease is in
full force and effect and neither party to it is in default of its obligations
under the Lease; nor has any event occurred, which with the passage of time
(after notice, if any, required by the Lease) would become an event of default
under the Lease. Tenant has no claims, defenses or set-offs against Landlord or
offsets against rent.
7.
Tenant has received no notice of prior sale, transfer or assignment,
hypothecation or pledge of the Lease or of the rents received therein, except
____________________
8. Tenant
has not assigned or sublet its interest in the Lease nor does Tenant hold the
leased premises under assignment or sublease, except
_________________________
9. Tenant's
share of operating expenses and Real Estate Taxes is _________________________________________________________________________________
10. Tenant
has no other interest in any other part of the building of which the leased
premises form a part or to any personal property appurtenance thereto or used in
connection therewith, except
_______________________________________________
11. Tenant
has no right or option (including any first right of refusal) pursuant to the
Lease or otherwise to purchase all or any part of the leased premises or the
building of which the leased premises are a part.
12. There
are no other agreements, written or oral, between Tenant and Landlord with
respect to the Lease and/or the leased premises and building, except the Lease
and those documents described in item 1 above.
13. The
statements contained herein may be relied upon by the party and/or parties to
whom this certificate is addressed (or any prospective purchaser of the premises
or an indirect interest therein, and its agent), their lenders, and their
successors and assigns.
14. Tenant
has no right or option to cancel the Lease prior to its stated expiration date,
except ______________________________
15. Tenant
has no expansion rights with respect to additional space in the building,
except
If we are a corporation, the
undersigned is a duly appointed officer of the corporation signing this
certificate and is the incumbent in the office indicated under his
name.
E-2
In any
event, the undersigned individual is duly authorized to execute this
certificate.
Dated
this ________ day of _________________
TENANT:
By:
_________________________________
E-3
EXHIBIT
"F"
SCHEDULE
OF BUILDING SERVICES
1. Landlord's Services. Landlord
shall provide the following utilities and services ("Building
Services"):
a. Hot
and cold tap water for drinking and toilet purposes. Tenant shall pay Landlord
for water famished for any other purpose as additional rent at rates fixed by
Landlord. Tenant shall not permit water to be wasted.
b. Automatically
operated passenger elevator service during Normal Building Hours and limited
passenger service at other times, except in case of an emergency.
c. Cleaning
services on Monday through Friday of each week, except on the holidays listed
below.
d. Heat
and air-conditioning in season, during Normal Building Hours, which shall be
deemed to exclude the following holidays: New Year's Day, Presidents’ Day,
Memorial Day, Fourth of July, Labor Day, Thanksgiving Day, and Christmas Day,
and any other national holiday promulgated by a Presidential Executive Order or
Congressional Act.
e. Heat
and air-conditioning at times other than Normal Building Hours ("After Hours
HVAC"), at Tenant's expense, provided Tenant gives Landlord a request for After
Hours HVAC at least one business day in advance. Landlord shall charge Tenant
for After Hours HVAC at the "After Hours HVAC Rate" as reasonably established by
Landlord from time to time. After Hours HVAC cannot be supplied to less than one
full floor at a time. In the event After Hours HVAC is requested by more than
one Tenant of the Building for the same time period, the charge for the After
Hours HVAC shall be apportioned among all tenants requesting the After Hours WAC
based on the number of floors for which After Hours WAC has been requested and,
if two or more tenants are located on the same floor, based on the relative
square footages of each of the premises on the same floor.
f.
Maintenance, painting and electric lighting service for all common areas and
special service areas in the Building.
g. Electricity
and proper electrical facilities to furnish sufficient electricity for equipment
of Tenant installed pursuant to Section 30.
2. Public Utility Requirements.
In the event any public utility supplying energy requires, or government law,
regulation, executive or administrative order results in a requirement, that
Landlord or Tenant must reduce, or maintain at a certain level, the consumption
of electricity for the Premises or Building, which affects the heating,
air-conditioning, lighting, or hours of operation of the Premises or Building,
Landlord and Tenant shall each adhere to and abide by these laws, regulations or
administrative orders without any reduction in rent.
F-1
3. Additional Janitorial
Services. If Tenant requires janitorial services other than those
required to be provided to other tenants of the Building generally, Tenant shall
separately pay for such services monthly as additional rent upon billing by
Landlord, or Tenant shall, at Landlord's option, separately contract for such
services with the same company furnishing janitorial services to Landlord.
Notwithstanding the foregoing, Tenant shall have the right, subject to
Landlord's prior written consent, which consent shall not be unreasonably
withheld and subject to such reasonable rules, regulations and requirements as
Landlord may impose (including but not limited to the requirement that such
janitors belong to a trade union), to employ Tenant's own janitors to perform
such additional services.
F-2
EXHIBIT
"G"
DEFINITION
OF OPERATING EXPENSES
1. Operating Expenses. The term
"Operating Expenses" means all costs and expenses incurred by Landlord in
owning, managing, operating, maintaining, servicing, insuring and repairing the
Building, atrium (if any), the surface and garage parking lots and other
exterior appurtenances, and the land upon which the Building is located (the
"Land"), including but not limited to the following:
a. premiums
and other charges for insurance (including, but not limited to, property
insurance, rent loss insurance and liability insurance and
deductibles);
b. all
management fees incurred in the management of the Building, whether such
management services are provided by Landlord, an affiliate of Landlord, or an
independent management company;
c. the
cost of goods, services equipment and supplies used or incurred directly or
indirectly in the operation, maintenance, replacement, repair and administration
of the Building, including lighting, relamping, heating, ventilating, and air
conditioning cost, costs of providing hot and cold water, electrical or any
other energy supplied to the Building, elevator maintenance and operation, and
other service contracts;
d. amortization
(calculated over the Approved Period, with interest at the cost of funds charged
to Landlord (for financial improvements) or (if the improvement is not financed)
at the prime rate reported in the Money Rates section of The Wall Street Journal
(or similar publication if it ceases to be published) for capital expenditures
in excess of $5,000.00 (lesser amounts may be included as an expense and need
not be amortized) made by Landlord for the purpose of complying with legal or
insurance requirements or that are intended to result in a net decrease in
Operating Expenses or improved building safety. The Approved Period shall mean
the lesser of the estimated useful life of the improvement or ten (10) years,
except that with respect to an improvement made for the purpose of reducing
Operating Expenses, Landlord may amortize the expense over the period so that
the yearly amortization amount (exclusive of interest at the rate stated above)
is equal to the projected annual savings as reasonably estimated by
Landlord;
e. salaries,
wages, benefits and other expenses of Building personnel (including cost of
uniforms, worker's compensation and unemployment insurance, fidelity bonds,
vacation pay, pension and retirement benefits, health care, and other fringe
benefits, whether statutory or otherwise) of all employees of Landlord directly
employed in the operation, maintenance, repair and administration of the
Building, including the security and reception employees and other
nonadministrative personnel and amounts paid to contractors and subcontractors
in connection with any of the foregoing (such costs with respect to
personnel
G-1
serving
multiple buildings to be prorated among the buildings receiving such services
using a method selected by Landlord in its reasonable discretion);
f. legal
fees (except as excluded below), administrative expenses, and accounting,
architectural and other professional fees and expenses;
g. the
cost of establishing and maintaining a reasonable annual reserve for capital
improvements and structural repairs and replacements reasonably necessary to
permit Landlord to maintain the Building as a first class office
building;
h. cost
of maintenance and replacement of landscaping, the cost of maintenance,
resurfacing and restriping of parking areas, and the cost of maintenance,
repair, cleaning services and supplies furnished to common and public areas of
the Building;
i. costs
associated with the provision or operation of any common facilities and service
amenities;
j. the
cost of maintaining management or engineering offices for the Building,
including rent thereon, which offices may be located in another building, and
this expense may include a reasonable allocation of space that Building
management and engineering personnel occupy in off-site corporate
offices;
k. electricity,
water, sewer and other utility charges;
1. costs
of any Landlord subsidy of a food service maintained for the benefit of the
tenants in the Building;
m. expenses
(including reasonable attorneys' fees and appraisers' fees) incurred in
reviewing, protesting or seeking a reduction of Real Estate Taxes, which shall
be sought solely at Landlord's sole discretion.
n. the
amount of any insurance deductible maintained by Landlord for the benefit of the
Building; and
2. Exclusions from Operating
Expenses. Notwithstanding the foregoing to the contrary, "Operating
Expenses" shall not include the following:
a. debt
service, including interest, financing costs and amortization of mortgages on
the Building;
b. any
tenant improvements performed or alteration of space leased to tenants or
occupants of the Building whether such work or alteration is performed for the
initial occupancy by such tenant or occupant or thereafter;
G-2
c. the
cost of alterations, capital improvements and replacements which under generally
accepted accounting principles are properly classified as capital expenditures,
except as set forth in Section 1 d or 1 g above;
d. any
cash or other consideration paid by Landlord on account of, with respect to, or
in lieu of tenant improvements or alterations described in Section 2b
above;
e. base
ground rent (if any), plus escalations thereto, but exclusive of Real Estate
Taxes, utilities and other "net" elements constituting rent under a ground
lease;
f. depreciation
or amortization on the Building except as provided in Section 1 c and 1 d
above;
g. repairs
or replacements necessitated by the gross negligence or willful misconduct of
Landlord;
h. costs
of enforcement of leases;
i. leasing
commissions, advertising and promotional expenses and any other comparable
expenses directly related to leasing or procuring tenants or negotiating with
prospective tenants;
j. legal
fees, accounting fees and other professional and consulting fees (a) incurred in
procuring tenants for the Building, (b) incurred in connection with Landlord's
gross negligence or willful misconduct or default under any mortgage, deed of
trust or ground lease relating to the Building, (c) relating to enforcing any
leases or any Landlord/Tenant proceeding, (d) relating to the defense of
Landlord's title to, or interest in, the Building, or (e) relating to the
refinancing or sale of the Building or any interest therein;
k. the
cost of repairs incurred by reasons of fire or other casualty or condemnation to
the extent that either (a) Landlord is compensated therefore through proceeds of
insurance or condemnation awards; or (b) Landlord is not fully compensated
therefore due to the Landlord not obtaining insurance against such fire or
casualty or the decision of Landlord to self-insure; or (c) if Landlord is not
fully compensated by reason of the coinsurance provisions of its insurance
policies due to Landlord not obtaining and maintaining a sufficient amount of
insurance coverage;
l. all
expenses for which Landlord has received reimbursement (such as from insurance
or from other tenants of the Building);
m. income
or franchise taxes or such other taxes imposed upon or measured by Landlord's
net income from the operation of the Building, except to the extent that these
are enacted as a substitute for other taxes that would be included as Operating
Expenses;
G-3
n. costs
allocable to properties other than the Building in which Landlord or any partner
thereof has a direct or indirect interest;
o. recordation
and transfer taxes and .transfer gain taxes;
p. fees
or expenses of property management services provided by parties related to or
affiliated with Landlord, except to the extent such fees or expenses are not in
excess of the market rate for services of comparable quality as charged by
unaffiliated parties (provided that in no event will the following be deemed in
excess of the market rate: property management fees equal to four percent of
gross income derived from the Project, including net parking income (or' rent
under a garage lease, if applicable) and amounts received as reimbursements for
Operating Expenses or Real Estate Taxes, but excluding insurance and
condemnation proceeds);
q. the
cost of installing, operating, and maintaining any specialty facility such as an
observatory broadcasting facility, restaurant or luncheon club, athletic or
recreational club, theater or cafeteria unless available to all tenants in the
Building;
r. the
cost of any additions to the Building that result in a larger building; and s.
costs or payments associated with Landlord's obtaining air rights or development
rights.
3. Real
Estate Taxes. "Real Estate Taxes" shall mean: any and all real estate
taxes and ad valorem taxes, surcharges, special assessments and impositions,
general and special, ordinary and extraordinary, foreseen or unforeseen, of any
kind levied against the Building or Land, or in connection with the use thereof
(including any transit, personal property, sales, rental, use, gross receipts
and occupancy tax and other similar charges), and any other present or future
taxes or governmental charges that are imposed upon Landlord which are in the
nature of or in substitution for real estate taxes, including any tax levied or
measured by the rents payable by tenants of the Building, and business
improvement district taxes.
G-4
LEASE
COMMENCEMENT RIDER
LANDLORD: Best
Property Fund, L.P., a Delaware limited partnership
TENANT: Premier
Data Services, Inc., a Delaware Corporation
This Lease Commencement Rider ("Rider")
is made by Landlord and Tenant pursuant to that certain Office Lease (the
"Lease") entered into as of June 20, 2003, for the Premises known as Suite 220,
consisting of approximately 8,204 square feet in the building known as The Point
at Inverness (the "Premises"). This Rider constitutes a supplementary addendum
to the Lease as contemplated by Section 3.2 of the Lease.
1. Lease Commencement
Date.. Landlord and Tenant acknowledge and agree that the Commencement
Date as established pursuant to Section 3.2 of the Lease is June 20, 2003. The
Lease Term will expire on June 19,2008.
2. Acceptance of
Premises. Tenant has inspected and examined the Premises and Tenant finds
the Premises acceptable and satisfactory in all respects in their current, "as
is" condition, subject to the provisions of Section 3.3 of the
Lease.
3. Incorporation in
Lease. This Rider is incorporated into the Lease, and forms a
supplementary and integral part thereof. This Rider shall be construed and
interpreted in accordance with all other terms and provisions of the Lease for
all purposes.
LANDLORD:
BEST PROPERTY FUND, L.P., a
Delaware
limited partnership
By: Transwestern
Commercial Services, Inc.,
As its Property Manager
By: /s/ ▇▇▇▇
▇▇▇▇▇▇
Name: ▇▇▇▇
▇▇▇▇▇▇
Title: Vice President – MS
Date: 7/08/03
TENANT:
Premier Data Services,
Inc.
. By: /s/ ▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇
Title: President &
CEO
Date: June 25,
2003
[[Stamped: RECEIVED
JULY 15, 2003]]
FIRST
AMENDMENT TO OFFICE LEASE
This First Amendment to Office Lease
("First Amendment") is entered into as of the 9th day of
July, 2007 ("Effective Date"), by and between Best Property Fund, L.P., a
Delaware limited partnership ("Landlord") and Premier Data Services, Inc.., a
Delaware corporation ("Tenant").
RECITALS
A. Best Property Fund, L.P., as
landlord, ("'Landlord'% and Premier Data Services, Inc,, a Delaware corporation,
as tenant, entered into that certain Office Lease dated February 19, 2003
("'Lease") for lease of that certain premises consisting
of approximately 8,204 rentable square feet known as Suite 220
("Premises”) located at the building currently known as The Point at Inverness
('Building"') located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇.
B. The term of the Lease expires on
June 19,2008.
C. Landlord and Tenant hereby desire to
amend the Lease to extend the term for the Premises for sixty (60) months
commencing on June 20, 2008, subject to the following team and
conditions,
NOW, THEREFORE, in consideration of the
mutual obligations and covenants contained in this First Amendment and the
Lease, and .other good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged, the parties hereto agree as follows:
1. Estimated
Term. The term of the Lease is hereby extended for a period
of sixty (60) months commencing on June 20, 2008 (the “Extended Term
Commencement Date”) and expiring June 30, 2013 (“Extended Term”), upon and
subject to al of the existing terms of the Lease except as otherwise hereafter
set forth. As of the Effective Date, Addendum One to the Lease is
hereby deleted in its entirety.
2. Rent for the Extended
Term. During the Extended Term, Tenant shall pay to Landlords
as Monthly Rent for the Premises, in monthly installments as follows, in
accordance with Section 2 of the Lease:
|
Term
|
Per Sq. Ft.
|
Sq. Ft.
|
Monthly Rent
|
Annual Rent
|
|
6-20-08
to 6-19-09
|
$14.75
|
8,204
|
$10,084.08
|
$121,008.96
|
|
6-20-09
to 6-19-10
|
$15.25
|
8,204
|
$10,425.92
|
$125,111.04
|
|
6-20-10
to 6-19-11
|
$15.75
|
8,204
|
$10,767.75
|
$129,213.00
|
|
6-20-11
to 6-19-12
|
$16.25
|
8,204
|
$11,109.58
|
$133,314.96
|
|
6-20-12
to 6-19-13
|
$16.75
|
8,204
|
$11,451.42
|
$137,417.04
|
3. Condition of Premises for
Extended Term. Landlord is leasing and Tenant is taking the
Premises in its current “As Is” condition and Tenant is not entitled to any
improvements or to any allowance or credit for improvements for the Extended
Term except as
otherwise
provided herein. Notwithstanding the foregoing, Landlord agrees to provide the
sum of
Seventeen Thousand One Hundred Forty-Five Dollars ($17,145.00) for the
installation of an air conditioning system in the parking structure at a
location to be determined by Landlord. Upon the Effective Date, Exhibit B to the
Lease is deemed deleted in its entirety.
4. Removal of Cabling.
Tenant shall be solely responsible for the installation and maintenance of any
high speed cable or fiber optic that Tenant requires in the Premises. Landlord
shall provide reasonable access to the Building's electrical lines, feeders,
risers, wiring and other machinery to enable Tenant to install high speed cable
or fiber optic to serve its intended purpose, if any. All such cabling installed
shall be tagged by Tenant at their point of entry into the Building, at the
terminal end of the cable and in the riser closet indicating the type of cable,
the Tenant's name and the service provided. Tenant shall be responsible for the
removal of such cabling and fiber optic at the termination or expiration of the
Extended Term or the early termination of the Tenant's right to occupy the
Premises. Failure to remove any abandoned or unused cabling at the expiration or
termination of the Extended Term or the way termination of Tenant's right to
occupy the Premises will be deemed to be a holdover under Section 15 of the
Lease. In the event Tenant fails to remove such cabling as set forth herein,
Landlord may, but shall not be obligated to, remove such cabling, all at
Tenant's sole cost and expense.
5. Inducement Recapture in
Event of Default. Any agreement by Landlord for flee or abated rent or
other charges applicable to .the Premises, or for the giving or paying by
Landlord to or for Tenant of my cash or other bonus, .inducement or
consideration for Tenants entering into this First Amendment, including, but
not: limited to, any tenant improvements or broker commissions, $1 of which
concessions are hereinafter referred to as "Inducement Provisions" shall be
deemed conditioned upon Tenant's full and faithful performance of all of the
terms, covenants and conditions of the Lease, as amended hereby, to be performed
or observed by the Tenant during the Extended Term hereof. Upon the occurrence
of an event of default (as defined in Section 12 of the Lease) by Tenant, all
such Inducement Provisions shall automatically be deemed deleted from the Lease,
as amended hereby, and of no further force or effect, and any rent, other
charge, bonus, inducement or consideration therefore abated, given or paid by
Landlord, and recoverable by Landlord as Rent due under the Lease or this First
Amendment, notwithstanding any subsequent cure of said event of default by
Tenant. The acceptance by Landlord of Rent or the cure of the event
of default beyond the applicable cure period which initiated the operation of
this section shall not be deemed a waiver by Landlord of the provisions of this
section unless specifically so state in writing by Landlord at the time of such
acceptance.
6. Patriot Act
Certification, Tenant certifies that neither Tenant, nor my of its
constituent partners, managers, members or: shareholders, nor any beneficial
owner of Tenant or any such partner, manager, member or shareholder, nor any
other representative or affiliate of Tenant is a “Prohibited Person," defined
as (a) a person,
entity or nation named as a terrorist, "Specially Designated National or Blocked
Person," or other banned or blocked person pursuant to any law, order, rule or
regulation .that is enforced or administered by the U.S. Treasury Department's
Office of Foreign Assets Control (“OFAC”), including but not limited
to,
Executive
Order No. 13224 on Terrorist Financing, effective September 24, 2001 (the
“Executive Order”), and the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001
(Public Law 107-56, the "Patriot Act"); (b) a person, entity or nation owned. or
controlled by, or acting on behalf of, any person, entity or nation named as a
terrorist, "Specially Designated National or Blocked Person,'' or other banned
or blocked person pursuant to any law, order, rule or regulation that is
enforced or administered by OFAC, including but not limited to, the Executive
Order and the Patriot Act; (c) a person, entity or nation engaged directly or
indirectly in any activity prohibited by any law, order, rule or regulation that
is enforced or administered by OFAC, including, but not limited to, the
Executive Order and the Patriot Act; (d) a person, entity or nation with whom
the Landlord is prohibited from dealing or otherwise engaging in any transaction
pursuant to any terrorism or money laundering law, including but not limited to,
the Executive Order and .the Patriot Act; (e) a person, entity or nation that
has been convicted, pleaded nolo contendere, indicted, arraigned or custodial
detained on charges involving money laundering or predicate crimes to money
laundering; or (0 a person, entity or nation who is affiliated with any person,
entity or nation who is described above in subsections (a) through (e) above.
Tenant agrees to indemnify and save Landlord, Landlord's managing agent and
mortgagee harmless against and from any and all claims, damages, losses risks,
liabilities and expenses, including attorneys' fees and costs, arising from or
related to any breach of the foregoing certification.
7. Notices. The
addresses for notice to Landlord contained in Section 23 of the Lease are hereby
deleted and replaced with the following:
Best
Property Fwd, L.P.
c/o
Transwestern Commercial Services, Inc.
▇▇▇▇ ▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ 801 12
With
simultaneous copies to:
Loll ▇▇▇▇
▇▇▇▇▇▇▇▇▇ Realty Advisors, Inc.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇
▇▇▇▇▇▇▇▇, Senior Vice President
and
▇▇▇▇▇▇
▇▇▇▇▇▇ Greenhouse List & ▇▇▇▇▇▇▇ LLP
Granite
Building, Second Floor
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇
▇. List, Esq.
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
8. Parking, Upon the
Extended Term Commencement Date, Article 13 of the Basic Lease Term Sheet in the
Lease is deemed deleted in its entirety and replaced with the
following:
Thirty
(30) unreserved spaces in the Building's surface parking lot fee of charge and
five (53 resaved spaces in the Building's covered parking area at the current
rate of One Hundred Twenty-Five Dollars ($125.09 per month, per each garage
space, which may be increased by Landlord annually in accordance with the
prevailing market rates for covered parking. Tenant shall also be entitled to
one (1) additional covered space in the covered parking area on a month to month
basis for the Extended Term at the then current market rate for covered parking,
provided, however* that Landlord shall have the right to reclaim this space and
revoke Tenant's right to use the space at any time during the Extended Term, in
Landlord's sole discretion.
9. Miscellaneous.
(a) In
the event of any litigation arising out of or in connection with this First
Amendment, the prevailing party shall be awarded its reasonable attorney’s fees,
cost and expenses.
(b) The
Lease, as modified herein, remains in full force and effect and is ratified by
Landlord and Tenant. In the event of any conflict between the base and this
First Amendment, the terms and additions of this First amendment shall control.
Capitalized terms that defined herein shall have the same meaning as set forth
in the Lease.
(c) This
First Amendment is binding upon and inures to the benefit of the parties hereto
and their representative heirs, personal representatives, successors and
assigns. Except as expressly provided herein, Tenant has not assigned
or transferred any interest in the Lease and has full power and authority to
execute this First Amendment, Tenant has no known claims of my kind or nature
against Landlord arising from or under the Lease and there are not agreements
between Landlord and Tenant other than the Lease and as further amended
hereby.
(d) Time
is of the essence herein, unless waived by Landlord, which it shall have the
right, but not the obligation to do.
(e)
This First Amendment shall be governed by and construed in accordance with the
laws of the State of Colorado.
[signatures
to follow on separate page]
IN
WITNESS WHEREOF, Landlord and Tenant have made this First Amendment to Office
Lease effective on the day and year first above written.
|
LANDLORD
|
TENANT
|
|
BEST
PROPERTY FUND, L.P., a Delaware
|
Premier
Data Services, Inc., a Delaware
|
|
Limited
partnership
|
corporation
|
|
By: Kola ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Realty Advisors,
Inc.
|
Name:
/s/ R
▇▇▇▇▇▇▇
|
|
Title: CEO
|
|
|
A
Delaware corporation as agent
|
|
|
By: /s/ ▇▇▇▇
▇▇▇▇▇▇▇▇
|
|
|
▇▇▇▇
▇▇▇▇▇▇▇▇, Senior Vice President
|