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EXHIBIT 10.12
BUILD-TO-SUIT LEASE AGREEMENT
BETWEEN
CARRAMERICA REALTY, L.P.
(LANDLORD)
AND
▇. ▇. ▇▇▇▇▇▇▇ & COMPANY
(TENANT)
DATED AS OF DECEMBER 30, 1996
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TABLE OF CONTENTS
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1. Granting Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2. Acceptance of Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3. Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4. Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5. Base Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
6. Operating Expense Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
7. Utilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
8. Taxes - Assessments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
9. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
10. Maintenance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
11. Alterations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
12. Restoration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
13. Condemnation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
14. Subletting, Assignment and Contraction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
15. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
16. Inspection and Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
17. Quiet Enjoyment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
18. Surrender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
19. Holding Over . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
20. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
21. Landlord's Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
22. Tenant's Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
23. Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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24. Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
25. Mortgagee Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
26. Mechanic's Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
27. Estoppel Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
28. Environmental Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
29. Force Majeure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
30. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
31. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
32. Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
33. Rules and Regulations; Signage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
34. No Security Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
35. Management and Operation of Building . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
36. Self Help . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
37. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
38. Options to Extend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
39. Tenant's Right of First Offer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
40. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
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BUILD-TO-SUIT LEASE AGREEMENT
[Denver, Colorado]
THIS LEASE AGREEMENT is made as of this _____ day of December, 1996, between
CARRAMERICA REALTY, L.P., a Delaware limited partnership ("Landlord"), and the
Tenant named below.
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TENANT: ▇. ▇. ▇▇▇▇▇▇▇ & Company, a Colorado corporation.
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TENANT'S REPRESENTATIVE, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
ADDRESS, AND PHONE NO.: ▇. ▇. ▇▇▇▇▇▇▇ & Company
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
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PREMISES: All of the rentable area in the Building, excluding Common Areas, and any
area occupied by an on-site building management office, but including
locker rooms and shower facilities. Attached hereto as Exhibit B is a
document entitled "▇.▇. ▇▇▇▇▇▇▇ & Company Building Statistics", which
describes the rentable area within the Building.
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INITIAL IMPROVEMENTS: The improvements to be constructed pursuant to the Supplement to Lease
Agreement on the land described on attached Exhibit A ("Land").
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BUILDING: The building being constructed as part of the Initial Improvements, to be
known as the ▇. ▇. ▇▇▇▇▇▇▇ Building, or such name as Tenant shall designate
from time to time as provided herein, and to be located at ▇▇▇▇ ▇▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇.
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LEASE TERM: Beginning on the date of this Lease and ending on the last day of the 180th
full calendar month after the Rent Commencement Date:
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RENT COMMENCEMENT DATE: The earlier of (i) October 1, 1997 or (ii) the Beneficial Occupancy Date.
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BENEFICIAL OCCUPANCY DATE: Ten Business days after issuance of a tenant improvement certificate or
certificates of occupancy (which may be temporary) permitting Tenant to
occupy not less than one full floor of the Premises. In the event of any
dispute as to such date, the decision of the Interiors Architect for the
Building shall be final.
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BASE RENT: See Paragraph 5 of this Lease and Article 4 of the Supplement to Lease
Agreement
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BROKER: None
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CONSTRUCTION CONTRACT: That certain Construction Contract dated May 1, 1996 between Tenant and
▇▇▇▇▇▇ ▇▇▇▇▇▇ Construction Co. ("General Construction Contractor") duly
assigned to Landlord by Tenant.
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ARCHITECTS CONTRACTS: That certain Agreement dated May 1, 1996 between Tenant and ▇.▇. ▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇▇ and Associates, P.C. (the "Core and Shell Architect") (Core
and Shell) and that certain Agreement for Interior Design Services dated
May 1, 1996 between Tenant as client and VOA Associates Incorporated
("Interiors Architect").
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SUPPLEMENT TO The Supplement to Lease Agreement (Construction of Improvements) of even
LEASE AGREEMENT: date with this Lease, between Landlord and Tenant.
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MANAGER: The property manager for the Building, which shall be Landlord or its
designee.
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COMMON AREAS: That portion of the Building which consists of the entrance lobby,
corridors to the lobby and office suites, stairwells, rest rooms for the
building (but not including locker rooms and shower facilities, which shall
be deemed to be part of the Premises), loading dock, plumbing or heating,
ventilation, and air conditioning (HVAC) rooms used for the whole Building,
the roof, general terraces open to all tenants, storage rooms for the
exclusive use of maintaining the Building and operating plant, courtyards,
atriums, elevators, and any other area that is open to all tenants and
their guests or that is for the general good of the whole Building. The
foregoing notwithstanding, so long as the Premises include all of the
rentable area on any floor, the Premises shall include the elevator
vestibules, corridors and all restrooms on such floor and such areas shall
not be deemed to be "Common Areas".
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1. GRANTING CLAUSE. In consideration of the obligation of Tenant
to pay rent as herein provided and in consideration of the other terms,
covenants, and conditions hereof, Landlord leases to Tenant, and Tenant takes
from Landlord, the Premises, to have and to hold for the Lease Term, subject to
the terms, covenants and conditions of this Lease.
2. ACCEPTANCE OF PREMISES. Tenant is constructing the Initial
Improvements and hereby accepts the Premises in its condition as of the date
hereof, subject to all provisions of the Supplement to Lease Agreement or
restrictions of all applicable covenants of record and the applicable zoning
and other laws regulating the use of the Premises. Tenant acknowledges that
Landlord has made no representation or warranty as to the suitability of the
Premises for the conduct of Tenant's business. The risk of any defect or
deficiency in the Premises, or any portion thereof, of any nature, whether
patent or latent, as between Landlord and Tenant, is to be borne by Tenant. As
provided in the Supplement to Lease Agreement, Tenant shall be entitled to
enforce any and all warranties and guarantees under the Construction Contract.
Within thirty (30) days after the Beneficial Occupancy Date, the parties will
execute an acknowledgment letter for the purpose of confirming the Rent
Commencement Date, the amount of Base Rent (separately identifying the
components of Base Rent calculated pursuant to Paragraphs 4.1 and 4.2 of the
Lease Supplement), the rentable square footage of each floor of the Building,
the total rentable square footage of the Building, and the core factors for the
Building. To the extent that any of such items differ from the projected
square footages shown on Exhibit B, the parties agree to amend Exhibit B to
conform. Rentable square footage and core factors shall be determined by the
Interiors Architect in accordance with BOMA standards.
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3. USE. The Premises shall be used only for general office
purposes, including software demonstration and training, and for no other
purposes, which use shall be consistent with use of other first class office
buildings in the Denver Technological Center. Tenant will use the Premises in
a careful, safe and proper manner and shall not commit waste, overload the
floors or structure of the Premises, or subject the Premises to any use that
would damage the Premises. Tenant shall not permit any objectionable or
unpleasant odors, smoke, dust, gas, noise, or vibrations to emanate from the
Premises, or take any other action that would constitute a nuisance. Outside
storage, including without limitation, storage of trucks and other vehicles
(except vehicles used in connection with Tenant's business), is prohibited
except to the extent permitted by and in accordance with any conditions imposed
under applicable Legal Requirements (defined in the following Paragraph) and
recorded covenants. Tenant shall pay the amount of any increase in the cost of
any insurance carried by Landlord for the Premises that is caused by Tenant's
use of the Premises. Tenant shall comply with all covenants or restrictions of
record applicable to the Premises and any reasonable rules and regulations with
respect to the Premises that are not inconsistent with this Lease promulgated
by Landlord in accordance with this Lease after reasonable notice to Tenant.
Any occupation of the Premises by Tenant before the Rent Commencement Date
shall be subject to all obligations of Tenant under this Lease.
Anything in this Lease to the contrary notwithstanding, Tenant may use
a portion of the Premises for a cafeteria providing food services to its
employees and invitees, and a portion of the basement of the Premises for a
florist shop for employees and invitees, subject in each case to the following
conditions: (i) Tenant, at its cost, shall obtain and maintain all required
permits and licenses and shall comply with all Legal Requirements applicable to
each such use; (ii) such cafeteria and florist shop shall not be open to the
general public; (iii) the portion of the Premises used for such cafeteria and
florist shop shall be subject to Landlord's reasonable approval; and (iv) if
Tenant employs or contracts with any third party vendors to provide food or
beverage services or operation of or services within the florist shop, any such
vendor shall be subject to Landlord's prior written approval, which approval
shall not be unreasonably withheld or delayed and Tenant shall be solely
responsible for compliance by any such vendor with the requirements of this
Paragraph. In addition, the following conditions shall apply with respect to
the florist shop: (a) the area of the basement of the Premises occupied by such
shop and any related storage facilities shall not exceed 1,000 square feet; (b)
the florist shop and any fixtures and equipment incorporated therein shall not
be deemed to be part of the Initial Improvements and Landlord shall have no
obligation to pay any of the cost of such items; and (c) any alterations or
additions to the Premises in connection with the florist shop (including the
initial construction thereof) shall be deemed to be Alterations subject to the
provisions of Section 11.
4. COMPLIANCE WITH LAWS. Tenant, at its sole expense, shall
comply with and make necessary modifications, alterations, or additions,
whether substantial or insubstantial required by: (i) all municipal, county,
state and federal statutes, laws, ordinances, and regulations and all private
covenants, conditions and restrictions applicable to the Premises, the Building
or Tenant's use thereof, including, without limitation, the Americans with
Disabilities Act of 1990 ("ADA"), as amended and supplemented by further laws
from time to time (collectively, "Legal Requirements"); and (ii) all material
terms of any insurance policy covering or applicable to the Premises, all
material requirements of the issuer of any such policy, and all material
orders, rules, regulations, and any other requirements of the National Board of
Fire Underwriters (or any other body exercising similar functions) binding upon
Landlord or Tenant or the Premises or any use or condition of the Premises
(collectively, "Insurance Requirements"). The foregoing notwithstanding,
Tenant shall not be responsible for any modifications due to changes in Legal
Requirements occurring after Project Close-Out and which are required for
general office use (as opposed to any specific use by Tenant or any of its
subtenants); and Landlord shall bear the cost of any such modifications;
provided that such cost shall be amortized and included in Operating Expenses
as provided in Exhibit C. In the event additions, alterations or other
accommodations to the Premises, the Building, or the Common Areas are required
as a result of Tenant's occupancy or actions, which would not otherwise be
required of Landlord under the ADA or regulations promulgated thereunder,
Tenant shall be solely responsible for and shall indemnify and hold harmless
Landlord, its successors and assigns, for, from and against any loss, damage,
cost, claim, expense or liability directly or indirectly arising out of or
attributable to such occupancy or action. An order or directive by a building
official or other appropriate authority is not a prerequisite for Tenant's
obligations under this Paragraph 4. Tenant, at its sole expense, shall obtain
and maintain all permits, licenses, and other governmental approvals in a form
transferable to Landlord (to the extent permitted by law) required for the use,
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occupancy or possession of the Premises by Tenant and any permits for any
constriction in or to the Premises. At Tenant's request, Landlord shall
without charge sign, but without any obligation to incur any liability or
responsibility, applications for all permits and other instruments that may be
necessary or appropriate for the use of the Premises as contemplated herein.
5. BASE RENT. Tenant shall pay Base Rent as calculated in the
Supplement to Lease Agreement. The first full or partial month's Base Rent
shall be due and payable on the Rent Commencement Date, and Tenant promises to
pay to Landlord in advance without demand, deduction or set-off, monthly
installments of Base Rent on or before the first day of each calendar month
succeeding the Rent Commencement Date. Payments of Base Rent for any
fractional calendar month shall be prorated based upon the number of days in
such month. All payments required to be made by Tenant to Landlord hereunder
shall be payable at such address as Landlord may specify from time to time by
written notice delivered in accordance herewith. Tenant shall have no right at
any time to ▇▇▇▇▇, reduce, or set-off any rent due hereunder except where
expressly provided in this Lease. Tenant waives and releases all statutory
liens and offset rights as to rent. If Tenant is delinquent in any monthly
installment of Base Rent, and such delinquency continues for more than ten (10)
days (provided that such ten-day grace period shall not apply to more than two
delinquencies in any twelve-month period) Tenant shall pay to Landlord on
demand a late charge equal to two percent (2%) of such delinquent sum. The
provision for such late charge shall be in addition to all of Landlord's other
rights and remedies hereunder or at law and shall not be construed as a
penalty. Base Rent shall increase as of the thirty-seventh month and as of the
eighty-fifth month after the Rent Commencement Date by an amount equal to the
increase in the Consumer Price Index from the Rent Commencement Date or the
third anniversary of the Rent Commencement Date, as the case may be; provided,
however, in no event shall the Base Rent be increased on either such date by
more than 6% per annum or, in the case of the first such increase, by less than
1% per annum, compounded annually, on a cumulative basis from the beginning of
the Lease term. "Consumer Price Index" means the Consumer Price Index for All
Urban Consumers (Revised Series) (CPI-U). All Items, U.S. City Average
(1982-1984 equals 100) of the United States Department of Labor, Bureau of
Labor Statistics. If the manner in which the Consumer Price Index is
calculated shall be revised, Landlord shall make an adjustment in such revised
index so as to produce results equivalent, as nearly as possible, to those
which would have been obtained if the Consumer Price Index had not been so
revised. If the Consumer Price Index shall become unavailable to the public
because publication is discontinued or otherwise, Landlord will substitute
therefor a comparable index based upon changes in the cost of living or
purchasing power of the consumer dollar published by any other governmental
agency or, if no such index shall be available, then a comparable index
published by a major bank or other financial institution or by a university or
a recognized financial publication.
6. OPERATING EXPENSE PAYMENTS. During each month of the Lease
Term, on the same date that Base Rent is due, Tenant shall pay Landlord an
amount equal to 1/12 of the annual cost, as estimated by Landlord from time to
time, of the Operating Expenses. Payments thereof for any fractional calendar
month shall be prorated based on the number of days in such month. The term
"Operating Expenses" is defined in Exhibit C.
Adjustments for overpayment or underpayment on account of
Tenant's obligation for Operating Expenses shall be made as soon as practicable
after the end of a year, and payment by Tenant or credit and refund by
Landlord, as appropriate, shall be effected within fifteen (15) days after a
final determination of the amount thereof and billing therefor by Landlord to
Tenant, provided that with respect to any overpayment by Tenant, Landlord shall
have the option to credit such overpayment against installments of Operating
Expenses next due and owing by Tenant.
This Lease is a net lease and any present or future law to the
contrary notwithstanding, shall not terminate except as expressly provided
herein. Except as may be expressly provided herein, Tenant shall not be
entitled to any abatement, reduction, set-off, counterclaim, defense or
deduction with respect to any Base Rent, Operating Expenses or other sum
payable hereunder, nor shall the obligations of Tenant hereunder be affected
other than as expressly provided for herein, for any reason, including any
damage to or destruction of the Premises or any part thereof; any taking of the
Premises or any part thereof or interest therein by condemnation or otherwise;
any prohibition, limitation, restriction or prevention of Tenant's use,
occupancy or enjoyment of the Premises or any part thereof or any interference
with such use, occupancy or enjoyment by any person or for any other reason;
any title defect or encumbrance or any matter affecting title to the Premises
or any part thereof; any eviction by paramount title or otherwise; any default
by Landlord hereunder; any
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proceeding relating to Landlord; the impossibility or illegality of performance
by Landlord, Tenant or both; any action of governmental authority; any breach
of warranty or misrepresentation; any defect in the condition, quality or
fitness for use of the Premises or any part thereof; or any other cause whether
similar or dissimilar to the foregoing and whether or not Tenant shall have
notice or knowledge or any of the foregoing. Except as expressly provided in
this Lease, Tenant hereby waives and releases (i) all right to terminate or
surrender this Lease, (ii) all right to avail itself of any abatement,
suspension, deferment, reduction, setoff, counterclaim or defense with respect
to any Base Rent, Operating Expenses, Taxes or other sum payable by Tenant
hereunder, and (iii) all statutory liens and offset rights as to rent.
70 UTILITIES. Tenant shall pay for all water, gas, electricity,
heat, light, power, telephone, sewer, sprinkler services, refuse and trash
collection, and other utilities and services used on the Premises, all
maintenance charges for utilities, and any storm sewer charges or other similar
charges for utilities imposed by any governmental entity or utility provider,
together with any taxes, penalties, surcharges or the like pertaining to
Tenant's use of the Premises. Landlord may cause at Tenant's expense any of
said utilities (and any required utility deposits) to be charged directly to
Tenant by the provider. No interruption or failure of utilities shall result
in the termination of this Lease or the abatement of rent. Tenant shall have
the right to install, at Tenant's cost, separate metering of utilities in the
event of subletting of any portion of the Building so that subtenants can be
charged with their actual share of utilities.
80 TAXES - ASSESSMENTS. Landlord agrees to pay all real estate
taxes and assessments and governmental charges of any kind and nature
(collectively referred to as "Taxes") that accrue against the Premises during
the Lease Term. Taxes shall be included as part of Operating Expenses charged
to Tenant, payable in advance in estimated monthly installments, with
reconciliation after the end of each calendar year, as provided in Paragraph 6.
For purposes of determining Taxes for any given year, the amount payable by
Tenant for such year (a) from special assessments payable in installments shall
be the amount of the installments (and any interest due and payable during such
year), and (b) from all other taxes, at Landlord's election (which election
shall be consistent throughout the Lease Term), shall either be the amount
accrued, assessed or otherwise imposed for such year or the amount due and
payable in such year. The obligation of Tenant to pay Taxes for periods prior
to termination of this Lease shall survive such termination (whether by
expiration or otherwise). Landlord shall have the right to contest by
appropriate legal proceedings the amount, validity, or application of any Taxes
or liens thereof. All capital levies or other taxes assessed or imposed on
Landlord upon the rents payable to Landlord under this Lease and any franchise
tax, any excise, transaction, sales or privilege tax, assessment, levy or
charge measured by or based, in whole or in part, upon such rents from the
Premises or any portion thereof shall be paid by Tenant to Landlord, but Tenant
shall not be liable for any net income taxes imposed on Landlord unless such
net income taxes are in substitution for any tax or assessment payable
hereunder. If any such tax or excise is levied or assessed directly against
Tenant, then Tenant shall be responsible for and shall pay the same at such
times and in such manner as the taxing authority shall require. With respect
to the Taxes levied in respect of any period of time within which either the
Rent Commencement Date or the expiration date occurs, Tenant must only pay a
proportionate part of those Taxes, which part will bear the same ratio to the
total amount of those Taxes as the number of days in the period between the
Rent Commencement Date and the end of the period of time or in the period
between the beginning of that period of time and the expiration date, whichever
is applicable, bears to the total number of days in that period of time.
So long as no uncured Event of Default has occurred hereunder
and provided that Tenant occupies not less than 75% of the rentable area of the
Building, and provided further that Landlord is not also contesting such Taxes,
Tenant may contest in good faith and at its expense the amount or validity of
any Taxes that it is obligated to pay in accordance with the foregoing and, if
successful in that regard, is entitled to recover from Landlord any refund paid
to Landlord as a result of that successful contest, after deduction of fees and
expenses incurred in obtaining such refund. Landlord shall join in any contest
undertaken by Tenant in accordance with the foregoing at Tenant's expense if
the provisions of any law, rule or regulation at the time in effect require
that the proceedings be brought by or in the name of Landlord. Notwithstanding
any such contest by Tenant, Landlord shall not be required to withhold any
payment of Taxes otherwise due and payable and Tenant shall continue to pay
monthly installments of Operating Expenses with respect to Taxes as required
hereunder. Tenant shall indemnify, defend and hold Landlord harmless from any
loss, claim, cost or liability resulting from or arising out of any such
contest by Tenant. Tenant shall pay all taxes and charges on account of
Tenant's use, occupancy, operation of and interest in the Premises including,
but not limited to, all personal property, inventory, sales and use taxes, and
all occupation and license fees issued or charged against the Premises or the
contents thereof on account of Tenant's use or occupancy thereof.
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9. INSURANCE. From and after substantial completion of the
Initial Improvements (but in no event later than expiration of the builder's
risk coverage carried for the Initial Improvements as required under the
Supplement to Lease Agreement) Landlord shall maintain "all-risk" property
insurance covering the replacement cost of the Initial Improvements. Landlord
may, but is not obligated to, maintain such other insurance and additional
coverages as it may deem necessary, including, but not limited to, commercial
liability insurance and rent loss insurance. All such insurance shall be
included as part of the Operating Expenses charged to Tenant hereunder. The
insurance required hereunder may be included in a blanket policy (in which case
the cost of such insurance allocable to the Initial Improvements will be
determined by Landlord based upon the insurer's cost calculations). Tenant
shall also reimburse Landlord for any increased premiums or additional
insurance which Landlord reasonably deems necessary as a result of Tenant's use
of the Premises.
Tenant, at its expense, shall maintain during the Lease Term:
"all-risk" property insurance on a replacement cost basis for the full
insurable value of all Alterations (defined in Paragraph 11), property and
improvements installed or placed in the Premises by Tenant and any improvements
constructed by Landlord and not required to be insured by Landlord; workers'
compensation insurance with no less than the minimum limits required by law;
employer's liability insurance with such limits as required by law; commercial
liability insurance, with a minimum limit of $3,000,000.00 per occurrence and a
total minimum combined general liability and umbrella limit of $3,000,000.00
(together with such additional umbrella coverage as Landlord may reasonably
require) for property damage, personal injuries, or deaths of persons occurring
in or about the Premises; and business interruption insurance covering the Base
Rent for a period of 12 months. Landlord may from time to time require
reasonable increases in any such limits. The commercial liability policies
shall name Landlord as an additional insured, insure on an occurrence and not a
claims-made basis, be issued by insurance companies which are reasonably
acceptable to Landlord, not be cancelable unless 30 days prior written notice
shall have been given to Landlord, contain a hostile file endorsement and a
contractual liability endorsement and provide primary coverage to Landlord (any
policy issued to Landlord providing duplicate or similar coverage shall be
deemed excess over Tenant's policies). Such policies or certificates thereof
shall be delivered to Landlord by Tenant upon commencement of the Lease Term
and upon each renewal of said insurance.
The all-risk property insurance obtained by Landlord and
Tenant shall include a waiver of subrogation by the insurers and all rights
based upon an assignment from its insured, against Landlord or Tenant, their
officers, directors, employees, managers, agents, invitees and contractors, in
connection with any loss or damage thereby insured against. Neither party nor
its officers, directors, employees, managers, agents, invitees or contractors
shall be liable to the other for loss or damage caused by any risk covetable by
all risk property insurance, and each party waives any claims against the other
party, and its officers, directors, employees, managers, agents, invitees and
contractors for such loss or damage. The failure of a party to insure its
property shall not void this waiver. Landlord and its agents, employees and
contractors shall not be liable for, and Tenant hereby waives all claims
against such parties for, interruption to business and losses occasioned
thereby sustained by Tenant or any person claiming through Tenant resulting
from any accident or occurrence in or upon the Premises or in or about the
Premises from any cause whatsoever.
10. MAINTENANCE.
(a) From and after Project Close-Out (as defined in the
Supplement to Lease Agreement), Landlord agrees, at its cost and expense,
except to the extent that such costs and expenses constitute Operating
Expenses, to keep in first-class order, condition and repair, consistent with
the standards generally applicable to a first-class office building in the
Denver Technological Center as of the date of this Lease, reasonable wear and
tear excepted, and except to the extent such compliance is the obligation of
Tenant under subparagraph 10(b), below, or under the Supplement to Lease
Agreement, in compliance with Legal Requirements and Insurance Requirements,
the roof (including support members, membranes and flashing), windows and solar
film if any on the exterior, downspouts, all structural portions of the
Building, the Common Areas and all other parts of the exterior of the Building
except Tenant's signs, and, to the extent the same are part of the base
Building systems, all plumbing, sewer, electrical, sprinkler, heating,
ventilating and air-conditioning equipment in the Building and all utility
lines on the Premises serving the Building, whether located within or outside
of the Building. The structural portions of the Building shall mean all
footings, foundations, floor slabs,
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columns, girders, load bearing interior walls and all exterior walls. Landlord
also shall maintain the automatic lighting controls and life safety systems for
the Building and the exterior of the Premises, including, without limitation,
the sidewalks, curbings, exterior light standards and bulbs and landscaped
areas, and the driveways and parking areas on the Premises in accordance with
the standards of a first-class office building in the Denver Technological
Center, ordinary wear and tear excepted. Except for Landlord's obligations as
provided above in this Paragraph 10 and in Paragraph 12 (relating to
restoration) Landlord shall have no obligation to repair, modify, alter, add
to, maintain, or replace the Premises or any portion thereof.
Landlord and Tenant have entered into a Conveyance of Easement of even
date with this Lease (the "Access Easement Agreement"), pursuant to which
Landlord has granted to Tenant a non-exclusive access easement to use a private
roadway which also serves the Building. Any provisions of the Access Easement
Agreement to the contrary notwithstanding, so long as the Driveway (as defined
in the Access Easement Agreement) is being used solely for access to the
Building and not for ingress and egress to and from any buildings or
improvements located on the JDE Tract (as defined in the Access Easement
Agreement), the Driveway shall be deemed to be part of the Common Areas and
shall be maintained by Landlord in accordance with the requirements of this
Paragraph 10. The foregoing notwithstanding, Landlord shall have no obligation
to maintain any portion of the Driveway or Access Road (as defined in the
Access Easement Agreement) located on the JDE Tract. All expenses incurred by
Landlord in performing such maintenance shall be included in Operating
Expenses. Landlord's obligation hereunder to maintain the Driveway shall
terminate upon the earlier of: (i) dedication of the Access Road as
contemplated by the Access Easement Agreement, or (ii) commencement of use of
the Driveway or the Access Road for ingress and egress to and from buildings or
improvements constructed on the JDE Tract.
(b) Tenant, at its expense, shall repair, replace and
maintain in a first class condition consistent with other first class office
buildings in the Denver Technological Center, reasonable wear and tear
excluded, and in compliance with Legal Requirements and Insurance Requirements,
all portions of the Premises (other than those required to be maintained by
Landlord hereunder), including, interior walls and the inside surfaces of
demising walls, doors, floor coverings, ceilings, lighting and systems which
are internal to the Premises. Tenant shall bear the full cost of any repair or
replacement to any part of the Building or Project that results from damage
caused by Tenant, its agents, contractors, or invitees and any repair that
benefits only the Premises. Anything in this Lease to the contrary
notwithstanding, Tenant shall be solely responsible for, and Landlord shall
have no obligation with respect to, compliance of the Initial Improvements with
Legal Requirements or compliance of the Premises with Legal Requirements
applicable to Tenant's use and occupancy.
(c) All repairs, modifications and replacements made by
Tenant or Landlord shall be equal in quality and class to the Initial
Improvements and shall be performed in compliance with all applicable
warranties in effect with respect to the Premises and, with respect to
modifications and replacements by Tenant, the requirements for Alterations.
Landlord may as an Operating Expense enter into regularly scheduled preventive
maintenance and service contracts covering the heating, ventilation and air
conditioning systems and other mechanical and building systems in form and
substance reasonably acceptable to Landlord with contractors approved by
Landlord. Landlord may have the roof inspected at regular intervals by a
qualified roofing consultant, as an Operating Expense, and shall undertake any
replacements, repairs, or maintenance work deemed prudent by Landlord.
Landlord may, but shall not be obligated to, enter the Premises and perform any
obligation of Tenant under this Paragraph 10 or any other provision of this
Lease that Tenant has failed to perform after 10 days' prior written notice to
Tenant, except in the case of an emergency, when no notice shall be required.
The cost of Landlord's performance together with interest as provided in this
Lease, shall be due and payable as additional rental on the next following due
date for Base Rent.
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11. ALTERATIONS.
(a) During the Term, except as provided in this ▇▇▇▇▇▇▇▇▇
▇▇, ▇▇▇▇▇▇ shall not make alterations or additions (collectively,
"Alterations") to the Premises without Landlord's prior written consent.
Tenant will have the right, without Landlord's consent to make Alterations to
the interior of the Premises that cost less than $50,000, do not materially
impair the value of the Premises and do not ▇▇▇▇▇▇ or otherwise compromise the
roof membrane or roof system, ▇▇▇▇▇▇, cut or drill the floor or affect the
structural components of the Building or the integrity or operation of any
building or mechanical systems and provided that Tenant provides Landlord with
reasonable advance notice of any such proposed Alterations. Landlord may not
unreasonably withhold or delay its consent to all other additions or
alterations provided that such alterations or additions (i) do not compromise
the roof membrane or roof system, or adversely affect the structural components
of the Building or the integrity or operation of any building or mechanical
systems, (ii) in Landlords' reasonable opinion, do not materially adversely
affects the value or marketability of the Premises and (iii) comply with all
other requirements for Alterations hereunder. As a condition to Tenant's
commencement of any Alterations, the parties shall agree in writing as to
whether Tenant shall be required to remove such Alterations prior to expiration
of the Lease. Landlord may require that Tenant remove any such Alterations
except for Alterations which are customary for general office space in first
class buildings in the Denver Technological Center. Tenant shall not do or
permit others under its control to do, during the term of this Lease, any work
on the Premises related to any Alterations unless Tenant shall have first
procured and paid, or caused to be procured and paid, all requisite municipal
and other governmental permits and authorizations. All Alterations shall
comply with Insurance Requirements and with Legal Requirements and shall be
constructed in good and workmanlike manner using only good grades of materials,
consistent with a first class office building in the Denver Technological
Center. All plans and specifications and contracts for any Alterations shall
be submitted to Landlord for its approval. Landlord may monitor construction
of the Alterations and Tenant shall reimburse Landlord for its reasonable costs
in reviewing plans and documents and in monitoring construction; provided that
such costs shall be limited to reasonable, actual out-of-pocket costs paid or
payable to third parties and reasonable charges for time spent by employees of
Landlord or its affiliates which do not exceed market rates for similar
services. Landlord's right to review plans and specifications and monitor
construction shall be solely for its own benefit, and Landlord shall have no
duty to see that such plans and specifications or construction comply with
Legal Requirements or Insurance Requirements. Tenant shall furnish to Landlord
satisfactory certificates of insurance from an insurance company satisfactory
to Landlord evidencing worker's compensation and insurance coverage in amounts
satisfactory to Landlord and protecting Landlord against public liability and
property damage to any person or property arising during construction of any
Alterations. Tenant shall provide Landlord with the identities and mailing
addresses of all persons performing work or supplying materials, prior to
beginning such construction. If requested by Landlord, Tenant shall furnish to
Landlord payment bonds or such other security satisfactory to Landlord to
insure payment for the completion of all work free and clear of liens.
Landlord may post or give notices of non-responsibility in compliance with
applicable law. Upon completion of any Alterations, Tenant shall deliver to
Landlord sworn statements setting forth the names of all contractors and
subcontractors who did work on the Alterations and final lien waivers from all
such contractors and subcontractors. Tenant at its expense shall provide to
Landlord upon completion complete as-built drawings of the Alterations.
Landlord may require as a condition to granting any consent to the making of
any Alterations that the cost that Landlord estimates will be necessary to
restore any Initial Improvements that are to be damaged or altered during the
construction of Alterations be paid to Landlord as security for Tenant's
obligation to restore the Initial Improvements.
(b) Tenant's trade fixtures, furnishings and equipment in
the Premises will remain Tenant's property for all purposes and Tenant shall
remove them at its expense on or before the expiration date. Upon the
expiration of the Term or any earlier termination of this Agreement, Tenant
shall return the Premises to substantially the condition that existed on the
Project Close-Out (as defined in the Supplement to Lease Agreement), except for
ordinary wear and tear and damage that Landlord has the obligation to repair
under the terms of this Agreement. Unless otherwise agreed by Landlord in
writing, Tenant shall remove all Alterations, and other tenant improvements not
included in the Initial Improvements. If Tenant does not remove any
Alterations, fixtures, furnishings, equipment and other improvements which
Tenant is required to remove hereunder, Landlord may remove such items and
restore the Premises at Tenant's expense. All fixtures, furnishings and
equipment not so removed by Tenant on or before expiration or termination of
the Lease shall upon such termination be and become the property of Landlord
without requirement of
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payment of any compensation or consideration. In all cases, Tenant shall
repair any damage to the Premises occasioned by the removal of Alterations and
Tenant's trade fixtures, furnishings and equipment.
12. RESTORATION. If the Premises are damaged during the Lease
Term by a risk covered by Landlord's insurance, Landlord shall promptly repair
and reconstruct the portion of the Premises required to be insured by Landlord
hereunder, subject to delays arising from the collection of insurance proceeds
or from Force Majeure events; and this Lease shall remain in full force and
effect. Tenant at Tenant's expense shall promptly perform, subject to delays
arising from the collection of insurance proceeds, all repairs or restoration
not required to be done by Landlord and shall promptly reenter the Premises and
commence doing business in accordance with this Lease. Notwithstanding the
foregoing, either party may terminate this Lease (as provided in the following
sentence) if the Premises are damaged during the Lease Term and Landlord
reasonably estimates that it will take more than nine (9) months to repair such
damage. Landlord shall promptly notify Tenant in writing if it reasonably
estimates that such restoration will require in excess of nine months and each
party shall have a period of ten business days after delivery of such notice to
Tenant in which to notify the other party of its election to terminate,
otherwise the Lease shall continue in full force and effect. The foregoing
notwithstanding, if the Lease Term (as it may have been previously extended
but not including any unexercised extension period) extends for at least 5
years beyond such estimated repair period and Tenant elects by written notice
to Landlord within such 10 day period not to terminate this Lease, then this
Lease shall continue in full force and effect, Landlord shall not be entitled
to terminate as provided above, and Landlord shall proceed with restoration as
required hereunder.
If the Premises or a portion thereof is not usable as a result
of damage by a risk covered by insurance required hereunder to be carried by
Landlord, Base Rent shall be abated for the period of restoration in the
proportion which the area of the Premises which is not usable by Tenant bears
to the total area of the Premises. Such abatement shall be the sole remedy of
Tenant, and to the extent permitted by applicable law, Tenant waives any right
to terminate the Lease by reason of damage or casualty loss.
If the Premises are damaged during the Lease Term by a risk
not covered by Landlord's insurance and not caused by the negligence of Tenant,
its agents, employees, or contractors, then Landlord may either restore the
Premises at Landlord's expense, in which case this Lease shall continue or,
subject to Tenant's right to continue this Lease as provided below, terminate
this Lease. Landlord shall make its election no later than 20 days after
Tenant's written request to Landlord. Tenant may continue the Lease despite
Landlord's election to terminate if Tenant notifies Landlord within 20 days
after receipt of Landlord's notice to terminate that Tenant intends to restore
the damage at its expense.
13. CONDEMNATION. If any part of the Premises should be taken for
any public or quasi-public use under governmental law, ordinance, or
regulation, or by right of eminent domain, or by private purchase in lieu
thereof (a "Taking" or "Taken"), and the Taking would prevent or materially
interfere with Tenant's use of the Premises, then upon written notice by
Landlord this Lease shall terminate and Base Rent shall be apportioned as of
the date of title vesting in such proceeding or purchase. If part of the
Premises shall be Taken, and this Lease is not terminated as provided above,
the Base Rent payable hereunder during the unexpired Lease Term (or period of
such taking if shorter) shall be reduced to such extent as may be fair and
reasonable under the circumstances. In the event of any such Taking, Landlord
shall be entitled to receive the entire price or award from any such Taking.
Tenant shall have the right, to the extent that same shall not diminish
Landlord's award, to make a separate claim against the condemning authority
(but not Landlord) for such compensation as may be separately awarded or
recoverable by Tenant for moving expenses and damage to the property and
fixtures that Tenant is permitted to remove under this Lease, if a separate
award for such items is made to Tenant.
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14. SUBLETTING, ASSIGNMENT AND CONTRACTION.
14.1 RESTRICTIONS ON ASSIGNMENT AND SUBLETTING.
(a) Except as otherwise expressly provided
herein, without Landlord's prior written consent (which consent may be withheld
in Landlord's sole discretion except as expressly provided in this Paragraph
14), Tenant shall not assign this Lease or sublease the Premises or any part
thereof or mortgage, pledge, or hypothecate its leasehold interest or grant any
concession or license within the Premises and any attention to do any of the
foregoing shall be void and of no effect.
(b) Tenant shall reimburse Landlord for all of
Landlord's reasonable out-of-pocket expenses in connection with any assignment
or sublease. Notwithstanding any assignment or subletting, Tenant shall at all
times remain fully responsible and liable for the payment of the rent and for
the compliance with all of Tenant's other obligations under this Lease
(regardless of whether Landlord's approval has been obtained for any such
assignments or subletting).
(c) If this Lease be assigned or if the Premises
be subleased (whether in whole or in part) or in the event of the mortgage,
pledge, or hypothecation of Tenant's leasehold interest or grant of any
concession or license within the Premises or if the Premises be occupied in
whole or in part by anyone other than Tenant, then upon a default by Tenant
hereunder Landlord may collect rent from the assignee, sublessee, mortgagee,
pledgee, party to whom the leasehold interest was hypothecated, concessionee or
licensee or other occupant and, except to the extent set forth in the preceding
paragraph, apply the amount collected to the next rent payable hereunder; and
all such rentals collected by Tenant shall be held in trust for Landlord and
immediately forwarded to Landlord. No such transaction or collection of rent
or application thereof by Landlord, however, shall be deemed a waiver of these
provisions or a release of Tenant from the further performance by Tenant of its
covenants, duties, or obligations hereunder.
(d) So long as (i) no uncured Event of Default
has occurred under this Lease and (ii) no Material Adverse Change in Tenant's
financial condition has occurred and is continuing, Landlord shall not
unreasonably withhold its consent to Tenant's request for permission to
sublease all or part of the Premises. It shall be reasonable for the Landlord
to withhold its consent to any sublease in any of the following instances:
(i) The intended use of the Premises by
the sublessee is not consistent, in Landlord's opinion, with
use of first class office buildings in the Denver
Technological Center;
(ii) Occupancy of the Premises by the
sublessee would, in Landlord's opinion, violate any agreement
binding upon Landlord or the real property on which the
Building is located with regard to the identity of tenants,
usage in the Building, or similar matters;
(iii) The identity or business reputation
of the sublessee will, in the reasonable of Landlord, tend to
damage the goodwill or reputation of the Building;
(iv) The sublet is to another tenant or a
party whom Landlord has identified as a prospective tenant in
the Building;
(v) The subtenant has not acknowledged
that the Lease controls over any inconsistent provision in the
sublease; or
(vi) The proposed sublessee is a
government entity.
The foregoing criteria shall not exclude any other reasonable basis for
Landlord to refuse its consent to such sublease.
(e) Any approved assignment or sublease shall be
expressly subject to the terms and conditions of this Lease.
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(f) Tenant shall provide to Landlord all
information concerning the assignee or sublessee as Landlord may request.
(g) Landlord may revoke its consent immediately
and without notice if, prior to the effective date of the assignment or
sublease, there has occurred and is continuing any default under the Lease.
(h) As used in this Lease, "Material Adverse
Change" means the occurrence of any one of the following, determined in
accordance with Generally Accepted Accounting Principles:
(i) As of the end of Tenant's most
recent fiscal quarter, the ratio of Tenant's current assets to
Tenant's current liabilities (excluding current portion of
unearned revenue) is less than 1.0;
(ii) As of the end of Tenant's most
recent fiscal quarter, the amount of Tenant's current assets
less the amount of Tenant's current liabilities (excluding
current portion of unearned revenue) is less than
$40,000,000.00;
(iii) Stockholders' equity in Tenant
(excluding nonrecurring and extraordinary items) is equal to
or less than 85% of stockholder's equity in Tenant (excluding
nonrecurring and extraordinary items) as of Tenant's fiscal
year end October 31, 1995;
(iv) Stockholder's equity in Tenant
(excluding nonrecurring and extraordinary items) is less than
$35,000,000.00; or
(v) In connection with any audited
financial statements of Tenant, the independent certified
public accountants performing such audit are not able to issue
an unqualified opinion.
14.2 So long as (i) no uncured Event of Default has
occurred under this Lease and (ii) no Material Adverse Change in the financial
condition of Tenant has occurred and is continuing, Tenant shall also have the
unrestricted right to sublet space in the Premises to a Successor or Affiliate,
and such subletting shall not be subject to the restrictions and requirements
of subparagraphs (a) and (d) of Paragraph 14.1.
14.3 So long as (i) no uncured Event of Default has
occurred under this Lease and (ii) no Material Adverse Change in the financial
condition of Tenant has occurred and is continuing, Tenant shall have the
unrestricted right to assign this Lease to a Successor or Affiliate which
Successor or Affiliate is the resulting entity after a merger or other similar
form of business reorganization; provided that such Successor or Affiliate has
a net worth which is not less than the net worth of Tenant as of the date of
this Lease (excluding good will). Without limitation, an assignment of this
Lease effected by operation of law, i.e., by merger, acquisition or other
similar form of business reorganization shall not require the consent of
Landlord so long as the surviving entity meets the qualifications of a
Successor or Affiliate in the first sentence of this Paragraph 14.3.
Otherwise, there shall be no assignment of Tenant's
interest in this Lease. No consent given by Landlord to any assignment shall
be treated as a consent to any further assignment, such consent being required
in each and every instance thereof.
Any assignment or subletting of Tenant's interest in
this Lease, whether or not requiring Landlord's consent, shall not relieve
Tenant from Tenant's liability or obligations under this Lease which shall be
and remain in full force and effect.
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14.4 Tenant shall, in any event, notify Landlord of the
fact of an assignment or subletting not requiring Landlord's consent. Tenant
shall provide Landlord with a copy of any assignment or sublease entered into
for any assignment or subletting.
14.5 Anything in Paragraph 14 to the contrary
notwithstanding, no subtenant shall have any right to make any alterations,
additions, or improvements, it being agreed that any right under this Lease to
make such alterations, additions or improvements shall be limited to Tenant.
150 INDEMNIFICATION. Except for the indemnified party's
negligence and to the extent permitted by law, Tenant agrees to indemnify,
defend and hold harmless Landlord, Mortgagee and their respective agents,
employees and contractors, from and against any and all losses, liabilities,
damages, costs and expenses (including attorneys' fees) resulting from claims
by third parties for injuries to any person and damage to or theft or
misappropriation or loss of property occurring in or about the Premises, the
Building or the Common Areas and arising from the use and occupancy of the
Premises, the Building or the Common Areas or from any activity, work, or thing
done, permitted or suffered by Tenant in or about the Premises, the Building or
the Common Areas or due to any other act or omission of Tenant, its subtenants,
assignees, invitees, employees, contractors and agents. The furnishing of
insurance required hereunder shall not be deemed to limit Landlord's or
Tenant's obligations under the provisions of this Paragraph 15. Landlord
agrees to indemnify, defend and hold harmless Tenant, Mortgagee and their
respective agents, employees and contractors from and against any and all
losses, liabilities, damages, costs and expenses (including reasonable
attorneys' fees) arising on account of or by reason of claims by third parties
for injuries or death to persons or damages to property resulting from the
negligence or willful misconduct of Landlord or its agents, employees, or
contractors, to the extent not attributable to any negligence of Tenant, any
assignee or subtenant or Tenant, or their respective employees, agents, or
contractors. The obligations of Tenant and Landlord under this paragraph shall
survive the termination of this Lease.
160 INSPECTION AND ACCESS. Landlord and its agents,
representatives, and contractors may enter the Premises at any reasonable time
to perform its maintenance obligations hereunder and to inspect the Premises
and to make changes and alterations to any portion of the Common Areas or the
Premises' exterior, including, without limitation, the parking areas, access
areas and the exterior walls and roof of the Premises, with any such material
changes adverse to the Tenant being made only with the consent of the Tenant,
which consent shall not be unreasonably withheld, delayed or conditioned.
Landlord agrees that in exercising any right to enter the Premises and in
exercising any other rights reserved pursuant to this Paragraph, Landlord shall
use reasonable efforts to minimize any interference with Tenant's use of the
Premises. Landlord and Landlord's representatives may enter the Premises
during business hours for the purpose of showing the Premises to prospective
purchasers or, during the last eighteen months of the Lease Term, to
prospective tenants; in addition, Landlord shall have the right to erect a
suitable sign on the Premises stating the Premises is available to let or is
available for sale. Landlord reserves the right to grant easements, change any
common area or access, create restrictions, and make public dedications on or
affecting the Premises that do not materially interfere with Tenant's use or
occupancy of the Premises. At Landlord's request, Tenant shall execute such
instruments as may be necessary for such easements or dedications.
170 QUIET ENJOYMENT. If Tenant shall perform all of the covenants
and agreements herein required to be performed by Tenant, Tenant shall, subject
to the terms of this Lease, at all times during the Lease Term, have peaceful
and quiet enjoyment of the Premises against any person claiming by, through or
under Landlord.
180 SURRENDER. Upon termination of the Lease Term or earlier
termination of Tenant's right of possession, Tenant shall surrender the
Premises to Landlord in the same condition as received, broom clean, ordinary
wear and tear and results from any condemnation excepted. All obligations of
Tenant and Landlord hereunder not fully performed as of the termination of the
Lease Term shall survive the termination of the Lease Term.
190 HOLDING OVER. If, for any reason, Tenant retains possession
of the Premises after the termination of the Lease Term, unless otherwise
agreed in writing, such possession shall be subject to immediate termination by
Landlord at any time, and all of the other terms and provisions of this Lease
(excluding any expansion or renewal option or other similar right or option)
shall be applicable during such holdover period, except that Tenant shall pay
Landlord
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from time to time, upon demand, as Base Rent for the holdover period, an amount
equal to 150% of the Base Rent in effect on the termination date, computed on a
monthly basis for each month or part thereof during such holding over. All
other payments shall continue under the terms of this Lease. In addition,
Tenant shall be liable for all damages incurred by Landlord as a result of such
holding over. No holding over by Tenant, whether with or without consent of
Landlord, shall operate to extend this Lease except as otherwise expressly
provided, and this Paragraph 19 shall not be construed as consent for Tenant to
retain possession of the Premises.
200 EVENTS OF DEFAULT. Each of the following events shall be an
event of default ("Event of Default") by Tenant under this Lease:
(i) Tenant shall fail to pay any
installment of Base Rent or any other payment required herein
when due, and, with respect only to the first two such
delinquencies in any 12-month period, such failure shall
continue for a period of ten (10) days from the date such
payment was due.
(ii) Tenant or any guarantor or surety of
Tenant's obligations hereunder shall (A) make a general
assignment for the benefit of creditors; (B) commence any
proceeding for relief, or seeking reorganization, arrangement,
adjustment, liquidation, dissolution or composition of it or
its debts or seeking appointment of a receiver, trustee,
custodian or other similar official for it or for all or of
any substantial part of its property; (C) become the subject
of any such proceeding which is not dismissed within 60 days
of its filing or entry; or (D) die or suffer a legal
disability (if Tenant, guarantor, or surety is an individual)
or be dissolved or otherwise fail to maintain its legal
existence (if Tenant, guarantor or surety is a corporation,
partnership or other entity).
(iii) Any insurance required to be
maintained by Tenant pursuant to this Lease shall be canceled
or terminated or shall expire or shall be reduced or
materially changed, except, in each case, as permitted in this
Lease.
(iv) Tenant shall vacate the Premises or
shall fail to continuously operate its business at the
Premises for the permitted use set forth herein, whether or
not Tenant is in monetary or other default under this Lease.
(v) Tenant shall attempt or there shall
occur any assignment, subleasing or other transfer of Tenant's
interest in or with respect to this Lease except as otherwise
permitted in this Lease.
(vi) Tenant shall fail to discharge or
bond over or insure over with title insurance any lien placed
upon the Premises in violation of this Lease within 30 days
after any such lien or encumbrance is filed against the
Premises.
(vii) Tenant shall fail to comply with any
provision of this Lease which failure is not addressed in any
other subparagraph of this Paragraph 20 and except as
otherwise expressly provided therein, such failure shall
continue for more than 30 days after Landlord shall have given
Tenant written notice of such failure. It is agreed, however,
that if the event of failure is not reasonably capable of cure
within such 30 day period but is otherwise reasonably capable
of cure, provided Tenant begins to cure the failure during the
30-day period and diligently pursues the cure thereof, as long
as Tenant is proceeding diligently to cure such failure,
Tenant shall have such longer period to cure such failure as
may be reasonably necessary.
(viii) the occurrence of any Event of
Default by Tenant under the Supplement to Lease Agreement.
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(ix) the occurrence of any default (after
expiration of any applicable grace or cure period) by Tenant
under the Access Easement Agreement (defined in Paragraph 10)
between Landlord and Tenant of even date with this Lease.
21. LANDLORD'S REMEDIES. Upon each occurrence of an Event of
Default, and so long as such Event of Default shall be continuing, Landlord may
at any time thereafter at its election: (i) terminate this Lease or Tenant's
right of possession, but Tenant shall remain liable as hereinafter provided;
and/or (ii) pursue any remedies provided for under this Lease or at law or in
equity. Upon the termination of this Lease or termination of Tenant's right of
possession, to the extent permitted by applicable law, Landlord, without formal
demand or notice of any kind, may re-enter the Premises by summary
dispossession proceedings or any other action or proceeding authorized by law
and remove Tenant and all persons and property therefrom. If Landlord
re-enters the Premises as provided herein, Landlord shall have the right to
keep in place and use, or remove and store, all of the furniture, fixtures and
equipment at the Premises.
If Landlord terminates this Lease, Landlord may recover from
Tenant the sum of all Base Rent and all other amounts accrued hereunder to the
date of such termination; the cost of reletting the whole or any part of the
Premises, including without limitation brokerage fees and/or leasing
commissions incurred by Landlord, and costs of removing and storing Tenant's or
any other occupant's property, repairing, altering, remodeling, or otherwise
putting the Premises into condition acceptable to a new tenant or tenants, and
all reasonable expenses incurred by Landlord in pursuing its remedies,
including reasonable attorneys' fees and court costs; and the excess of the
then present value of the Base Rent and other amounts payable by Tenant under
this Lease as would otherwise have been required to be paid by Tenant to
Landlord during the period following the termination of this Lease measured
from the date of such termination to the expiration date stated in this Lease,
over the present value of any net amounts which Landlord can reasonably expect
to recover by reletting the Premises for such period, taking into consideration
the availability of acceptable tenants and other market conditions affecting
leasing. Such present values shall be calculated at a discount rate equal to
the 90-day U.S. Treasury ▇▇▇▇ rate at the date of such termination.
If Landlord terminates Tenant's right of possession (but not
this Lease), Landlord may, but shall be under no obligation to, relet the
Premises for the account of Tenant for such rent and upon such terms as shall
be satisfactory to Landlord without thereby releasing Tenant from any liability
hereunder and without demand or notice of any kind to Tenant. For the purpose
of such reletting Landlord is authorized to make any repairs, changes,
alterations, or additions in or to the Premises as Landlord deems reasonably
necessary or desirable. If the Premises are not relet, then Tenant shall pay
to Landlord as damages a sum equal to the amount of the rental reserved in this
Lease for such period or periods, plus the cost of recovering possession of the
Premises (including attorneys' fees and costs of suit), the unpaid Base Rent
and other amounts accrued hereunder at the time of repossession, and the costs
incurred in any attempt by Landlord to relet the Premises. If the Premises are
relet and a sufficient sum shall not be realized from such reletting [after
first deducting therefrom, for retention by Landlord, the unpaid Base Rent and
other amounts accrued hereunder at the time of reletting, the cost of
recovering possession (including attorneys' fees and costs of suit), all of the
costs and expense of repairs, changes, alterations, and additions, the expense
of such reletting (including without limitation brokerage fees and leasing
commissions) and the cost of collection of the rent accruing therefrom] to
satisfy the rent provided for in this Lease to be paid, then Tenant shall
immediately satisfy and pay any such deficiency. Any such payments due
Landlord shall be made upon demand therefor from time to time and Tenant agrees
that Landlord may file suit to recover any sums falling due from time to time.
Notwithstanding any such reletting without termination, Landlord may at any
time thereafter elect in writing to terminate this Lease for such previous
breach.
Exercise by Landlord of any one or more remedies hereunder
granted or otherwise available shall not be deemed to be an acceptance of
surrender of the Premises and/or a termination of this Lease by Landlord,
whether by agreement or by operation of law, it being understood that such
surrender and/or termination can be effected only by the written agreement of
Landlord and Tenant. Any law, usage, or custom to the contrary
notwithstanding, Landlord shall have the right at all times to enforce the
provisions of this Lease in strict accordance with the terms hereof, and the
failure of Landlord at any time to enforce its rights under this Lease strictly
in accordance with same shall not be construed as having created a custom in
any way or manner contrary to the specific terms, provisions, and covenants of
this Lease or
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as having modified the same. Tenant and Landlord further agree that
forbearance or waiver by Landlord to enforce its rights pursuant to this Lease
or at law or in equity, shall not be a waiver of Landlord's right to enforce
one or more of its rights in connection with any subsequent default. A receipt
by Landlord of rent or other payment with knowledge of the breach of any
covenant hereof shall not be deemed a waiver of such breach, and no waiver by
Landlord of any provision of this Lease shall be deemed to have been made
unless expressed in writing and signed by Landlord. To the extent permitted by
applicable law, Tenant waives the service of notice of Landlord's intention to
re-enter as provided for in any statute, or to institute legal proceedings to
that end, and also waives all right of redemption in case Tenant shall be
dispossessed by a judgment or by warrant of any court or judge. The terms
"enter," "re-enter," "entry" or "re-entry," as used in this Lease, are not
restricted to their technical legal meanings. Any reletting of the Premises
shall be on such terms and conditions as Landlord in its sole discretion may
determine (including without limitation a term different than the remaining
Lease Term, rental concessions, alterations and repair of the Premises, lease
of less than the entire Premises to any tenant). Landlord shall not be liable,
nor shall Tenant's obligations hereunder be diminished, because of Landlord's
failure to relet the Premises or collect rent due in respect of such reletting.
22. TENANT'S REMEDIES. Landlord shall not be in default hereunder
unless Landlord fails to perform any of its obligations hereunder within thirty
(30) days after written notice from Tenant specifying such failure (unless such
performance will, due to the nature of the obligation, require a period of time
in excess of thirty (30) days, then after such period of time as is reasonably
necessary). All obligations of Landlord hereunder shall be construed as
covenants, not conditions. All obligations of Landlord under this Lease will
be binding upon Landlord only during the period of its ownership of the
Premises and not thereafter. The term "Landlord" in this Lease shall mean only
the owner, for the time being of the Premises, and in the event of the transfer
by such owner of its interest in the Premises, such owner shall thereupon be
released and discharged from all obligations of Landlord thereafter accruing,
but such obligations shall be binding during the Lease Term upon each new owner
for the duration of such owner's ownership. Any liability of Landlord under
this Lease shall be limited solely to its interest in the Premises, and in no
event shall any personal liability be asserted against Landlord in connection
with this Lease nor shall any recourse be had to any other property or assets
of Landlord.
23. WAIVER OF JURY TRIAL. TENANT AND LANDLORD WAIVE ANY RIGHT TO
TRIAL BY JURY OR TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE, BETWEEN LANDLORD AND TENANT ARISING
OUT OF THIS LEASE OR ANY OTHER INSTRUMENT, DOCUMENT, OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED HERETO.
24. SUBORDINATION. Tenant hereby agrees to subordinate this Lease
to any first mortgage covering the Premises, provided that, simultaneously with
the execution of such a mortgage, the mortgagee ("Mortgagee") and Landlord
execute an agreement in favor of Tenant on the Mortgagee's current standard
non-disturbance, attornment and subordination form if the Mortgagee is an
institutional lender and, otherwise, in form generally acceptable to
institutional lenders, in proper form for recording, to the effect that the
tenancy and other rights of Tenant hereunder shall not be disturbed so long as
Tenant pays the Base Rent and performs all of the other terms and conditions of
this Lease. The term "mortgage" whenever used in this Lease shall be deemed to
include deeds of trust, security assignments, ground leases and any other
encumbrances, and any reference to the "Mortgagee" of a mortgage shall be
deemed to include the beneficiary under a deed of trust and the lessor under a
ground lease.
25. MORTGAGEE PROTECTION. In the event of any default by Landlord
under this Lease, Tenant will give notice by registered mail to, in addition to
Landlord, any Mortgagee whose address shall have been furnished it, and shall
offer such Mortgagee that same period of time as is afforded Landlord to cure
the default (which period of time shall run concurrently with Landlord's cure
period), plus reasonable time to obtain possession of the Premises by judicial
foreclosure, or otherwise if such should prove necessary to effect a cure.
26. MECHANIC'S LIENS. Tenant has no express or implied authority
to create or place any lien or encumbrance of any kind upon, or in any manner
to bind the interest of Landlord or Tenant in, the Premises or to charge the
rentals payable hereunder for any claim in favor of any person dealing with
Tenant, including those who may furnish
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materials or perform labor for any construction or repairs. Tenant covenants
and agrees that it will pay or cause to be paid all sums legally due and
payable by it on account of any labor performed or materials furnished in
connection with any work performed on the Premises by or for Tenant and that it
will save and hold Landlord harmless from all loss, cost or expense based on or
arising out of asserted claims or liens against the leasehold estate or against
the interest of Landlord in the Premises or under this Lease as a result of
work done by or for Tenant. Tenant shall give Landlord immediate written
notice of the placing of any lien or encumbrance against the Premises and cause
such lien or encumbrance to be discharged within 30 days of the filing or
recording thereof; provided, however, Tenant may contest such liens or
encumbrances as long as such contest prevents foreclosure of the lien or
encumbrance and Tenant causes such lien or encumbrance to be bonded or insured
over in a manner satisfactory to Landlord within such 30-day period.
27. ESTOPPEL CERTIFICATES. Each party hereto shall, upon request
from the other party or from any of Landlord's lenders, at any time and from
time to time execute, acknowledge and deliver to such party a written
statement, in the form generally acceptable to institutional purchasers or
lenders certifying as follows: that this Lease is unmodified and in full force
and effect (or if there has been modification thereof, that the same is in full
force and effect as modified and stating the nature thereof); that to the best
of its knowledge there are no uncured defaults on the part of the other party
hereto (or if any such default exists, the specific nature and extent thereof);
the date to which any rents and other charges have been paid in advance, if
any; and such other matters as are typically contained in such certificates.
28. ENVIRONMENTAL REQUIREMENTS. Except for Hazardous Material
contained in products used in reasonable quantities and in compliance with all
applicable Environmental Requirements in connection with the construction of
the Initial Improvements or for ordinary cleaning, maintenance and office
purposes, neither Tenant nor Landlord shall bring any Hazardous Material upon
the Premises or transport, store, use, generate, manufacture, or release any
Hazardous Material in or about the Premises or permit or cause any other party
to do any of the foregoing. Tenant, at its sole cost and expense, shall cause
the Initial Improvements to comply with all applicable Environmental
Requirements and shall operate its business in the Premises in compliance with
all Environmental Requirements and shall immediately remediate any Hazardous
Materials released on or from the Premises, the Initial Improvements or the
Land by Tenant, its agents, employees, contractors, subtenants or invitees.
Tenant shall complete and certify to disclosure statements as requested by
Landlord from time to time relating to Tenant's transportation, storage,
handling, generation, manufacture, use, or release of Hazardous Materials on
the Premises. As Manager Landlord shall complete and certify to similar
disclosure statements requested by Tenant from time to time. If the release of
any Hazardous Material on the Premises or the Land caused or permitted by
Tenant, its agents, employees, contractors or invitees, with or without
Landlord's consent, results in any contamination, damage or injury to the
Premises, the Initial Improvements, the Land, the environment or human health,
Tenant shall promptly take all actions at its sole expense as are necessary to
return the Premises, Initial Improvements or Land to the condition existing
prior to the release of any such Hazardous Material and as may be required by
Environmental Requirements, provided that Landlord's written approval shall
first be obtained in cases where the Premises are to be physically altered.
The same requirement shall apply with respect to any release of Hazardous
Materials caused by Landlord as Manager or its employees or agents. Actual or
threatened action or litigation by any governmental authority is not a
condition prerequisite to Tenant's or Landlord's obligations under this
Paragraph.
The term "Environmental Requirements" means all applicable
present and future statutes, regulations, ordinances, rules, codes, judgments,
orders or other similar enactments of any governmental authority or agency
regulating or relating to health, safety, or environmental conditions on,
under, or about the Premises or the environment, including without limitation,
the following: the Comprehensive Environmental Response, Compensation and
Liability Act; the Resource Conservation and Recovery Act; and all state and
local counterparts thereto, and any regulations or policies promulgated or
issued thereunder. The term "Hazardous Materials" means and includes any
substance, material, waste, pollutant, or contaminant listed or defined as
hazardous or toxic, under any Environmental Requirements and petroleum,
including crude oil or any fraction thereof, natural gas, natural gas liquids,
liquefied natural gas or synthetic gas usable for fuel (or mixtures of such
natural gas and synthetic gas).
Tenant shall indemnify, defend, and hold Landlord harmless
from and against any and all losses (including, without limitation, diminution
in value of the Premises and loss of rental income from the Premises), claims,
demands, actions, suits, damages (including, without limitation, punitive
damages), expenses (including, without
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limitation, remediation, corrective action, or cleanup expenses), and costs
(including, without limitation, actual attorneys' fees, consultant fees or
expert fees) which are brought or recoverable against, or suffered or incurred
by Landlord as a result of the failure of the Initial Improvements to comply
with any Environmental Requirements or any release of Hazardous Materials that
Tenant is required to remediate as provided above or any breach of Tenant's
obligations under this Paragraph 28 by Tenant or its agents, employees,
contractors or invitees and in the use of the Premises by Tenant, its
subtenants, or invitees, regardless of whether Tenant had knowledge of such
noncompliance. The indemnification and hold harmless obligations of Tenant
shall survive any termination of this Lease.
Landlord shall indemnify, defend, and hold Tenant harmless
from and against any and all losses, claims, demands, actions, suits, damages
(including, without limitation, punitive damages), expenses (including, without
limitation, remediation, corrective action, or cleanup expenses), and costs
(including, without limitation, actual attorneys' fees, consultant fees or
expert fees) which are brought or recoverable against, or suffered or incurred
by Tenant as a result of release of Hazardous Materials that Landlord is
required to remediate as provided above or any breach of Landlord's obligations
under this Paragraph 28 by Landlord or its agents, employees, contractors,
regardless of whether Landlord had knowledge of such noncompliance. The
indemnification and hold harmless obligations of Landlord shall survive any
termination of this Lease. The foregoing notwithstanding, Landlord shall not
be responsible for and shall have no obligation to indemnify Tenant with
respect to release of Hazardous materials or any violation of Environmental
Requirements by any tenants or occupants of the Building or their employees,
agents, contractors licensees or invitees.
Landlord shall have access to, and a right to perform
inspections and tests of, the Premises as it may require to determine Tenant's
compliance with Environmental Requirements and Tenant's obligations under this
Paragraph 28. Access shall be granted to Landlord upon Landlord's prior notice
to Tenant and at such times so as to minimize, so far as may be reasonable
under the circumstances, any disturbance to Tenant's operations. Such
inspections and tests shall be conducted at Landlord's expense, unless such
inspections or tests reveal that Tenant has not complied with any Environmental
Requirement, in which case Tenant shall reimburse Landlord for the reasonable
cost of such inspection and tests. Tenant shall have the same rights to
inspect Landlord's operation as Manager, at Tenant's cost except as provided in
the preceding sentence with respect to Landlord's cost. One Party's receipt of
or satisfaction with any environmental assessment in no way waives any rights
that either Party holds against the other hereunder.
Upon any violation of any of the foregoing covenants, Landlord
or Tenant as the case may be, shall be entitled to exercise all remedies
available for an Event of Default, including, but not limited to those set
forth in Paragraph 21. Without limiting, the generality of the foregoing, the
parties expressly agree that upon any such violation the other party may, at
its option (i) immediately terminate this Lease, or (ii) continue this Lease in
effect until compliance by the Applicable Party with its clean-up and removal
covenant (notwithstanding the expiration of the term of this Lease). No action
by Landlord or Tenant hereunder shall impair the obligations of the other party
pursuant to this Paragraph 28.
29. FORCE MAJEURE. Landlord or Tenant shall not be held
responsible for delays in the performance of obligations hereunder when caused
by strikes, lockouts, labor disputes, acts of God, inability to obtain labor or
materials or reasonable substitutes therefor, governmental restrictions,
governmental regulations, governmental controls, enemy or hostile governmental
action, civil commotion, fire or other casualty, and other causes beyond the
reasonable control of Landlord or Tenant, as applicable ("Force Majeure").
30. ENTIRE AGREEMENT. This Lease constitutes the complete
agreement of Landlord and Tenant with respect to the subject matter hereof. No
representations, inducements, promises or agreements, oral or written, have
been made by Landlord or Tenant, or anyone acting on behalf of Landlord or
Tenant, which are not contained herein, and any prior agreements, promises,
negotiations, or representations are superseded by this Lease. This Lease may
not be amended except by an instrument in writing signed by both parties
hereto.
31. SEVERABILITY. If any clause or provision of this Lease is
illegal, invalid or unenforceable under present or future laws, then and in
that event, it is the intention of the parties hereto that the remainder of
this Lease shall not be affected thereby. It is also the intention of the
parties to this Lease that in lieu of each clause or provision of this Lease
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that is illegal, invalid or unenforceable, there be added, as a part of this
Lease, a clause or provision as similar in terms to such illegal, invalid or
unenforceable clause or provision as may be possible and be legal, valid and
enforceable.
32. BROKERS. Each party represents and warrants that it has dealt
with no broker, agent or other person in connection with this transaction and
that no broker, agent or other person brought about this transaction, other
than the broker, if any, set forth on the first page of this Lease, agrees to
defend, indemnify and hold the other harmless from and against any claims by
any other broker, agent or other person claiming a commission or other form of
compensation by virtue of having dealt with the indemnitor with regard to this
Lease.
33. RULES AND REGULATIONS; SIGNAGE.
33.1 The use of the Building and Common Areas in and
outside the Building by tenants in the Building (including Tenant) shall be
subject to the rules and regulations set forth in Exhibit D, annexed hereto.
Landlord shall have the right to amend the rules and regulations from time to
time as reasonably required to assure to all tenants in the Building the
orderly operation of the Building, but any amendment of rules and regulations
which changes the scope of the same and which material adversely affects
Tenant's own operations or materially adversely affects its use of the Premises
or Common Areas in the Building shall not be made without the consent of
Tenant, such consent not unreasonably to be withheld or delayed. Such rules
and regulations shall be published from time to time by Landlord and submitted
to all tenants in the Building. Landlord shall enforce the rules and
regulations against all tenants and occupants in a non-discriminatory manner.
Nothing contained in this Lease shall be construed to impose upon Landlord any
duty or obligation to enforce 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.
33.2 Tenant agrees that Landlord shall have the right of
access to the Premises at all reasonable times (or, in the case of an
emergency, at any time) for the inspection, protection, maintenance and repair
of the Premises, to the extent the same may be the responsibility of Landlord.
Landlord and Tenant shall establish reasonable procedures for access (including
emergency access) to areas located within the Premises which customarily are
secured facilities such as computer rooms, and software production and
duplication areas.
33.3 So long as Tenant occupies not less than 75% of the
rentable area of the Building, the Building shall be known as the ▇. ▇. ▇▇▇▇▇▇▇
Building or such other name as Tenant shall designate from time to time or
shall carry such other name as any Successor or Affiliate uses in the conduct
of its business. Any change from the name "▇. ▇. ▇▇▇▇▇▇▇ Building" or any
name designated by Tenant shall require the approval of Landlord, such approval
not unreasonably to be withheld or delayed. Landlord agrees, however, that it
will consent to the use of any name properly identifying an organization which
is the then name in use by Tenant or any Successor or Affiliate thereof, as
long as such name is not associated with a competitor of Landlord or an
Affiliate of Landlord at the time and provided that Tenant shall bear the cost
of any sign changes required by such name change.
Signs and flagpoles for Tenant's use shall be set
forth in the Plans and Specifications (as defined in the Supplement to Lease
Agreement). Any changes or replacements to such signs or flagpoles desired by
Tenant shall be at Tenant's expense and shall be subject to Landlord's
reasonable approval as to size, location, color and other specifications. All
such sign changes or replacements by Tenant shall comply with all Legal
Requirements and any covenants, conditions and restrictions affecting the real
property on which the Building is located. Landlord reserves the right to
place a monument or other sign on the exterior of the Building and in the
Building lobby identifying Landlord as the owner and/or manager of the
Building, in accordance with Landlord's corporate sign policy.
So long as Tenant occupies at least 100% of the
rentable area of the Building, Landlord shall affix no other signs to the
exterior of the Building and Landlord shall not permit signs visible to public
view in the lobby of the Building other than directional, information or safety
signs required by applicable Legal Requirements. Landlord also reserves the
right to place a sign in the lobby and on any exterior monuments or signs
identifying Landlord as the Owner and Manager of the Building. At any time
that Tenant no longer occupies 100% of the Premises, Landlord may
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erect or place signs in the Common Areas related to operations and/or tenants
of the Building, consistent with other first class office buildings in the
Denver Technological Center.
Tenant has the right to use a portion of the roof
area of the Building or such other location on the Premises, as Tenant may
reasonably select and as Legal Requirements and applicable private covenants
permit, for the installation, operation, maintenance, security, repair and
replacement of one satellite dish serving the Premises and related cable
connections (the "Telecommunications Equipment"). Tenant's use of the Premises
in respect to the Telecommunications Equipment will be subject to such
reasonable rules as Landlord may from time to time designate and to the
following additional conditions: (i) Tenant is solely responsible for the
installation, maintenance, repair, operation and replacement of the
Telecommunications Equipment, (ii) Tenant must comply with the covenants of
the Denver Technological Center, (iii) such installation shall not penetrate
the roof membrane or compromise the structure of the roof or Building and prior
to such installation Tenant shall provide to Landlord a structural report from
an engineer or roofing contractor satisfactory to Landlord confirming such
requirements, (iv) such installation shall not void any warranties applicable
to the roof or roof membrane, and (v) Tenant shall promptly repair any damage
to the roof or the roof membrane caused by such installation or use and shall
indemnify, defend and hold Landlord harmless from any loss, cost, claim or
liability resulting from such installation or use or any roof leaks caused by
such installation or use. Within thirty (30) days after the expiration of the
Term or the earlier termination of this Agreement, Tenant shall remove the
Telecommunications Equipment and fully restore the areas of the roof occupied
by such equipment to their prior condition and repair any damage to the
Premises that the removal causes. Tenant shall pay Landlord within 30 days
after Landlord's demand the cost of repairing any damage to the Premises
arising from the removal and restoration.
33.4 To the extent not included in the Plans and
Specifications for the Initial Improvements, so long as Tenant occupies at
least 75% of the rentable area of the Building (excluding any on-site
management office), Tenant may install at its cost a tenant directory in the
lobby of the Building listing tenants in the Building generally, and listing
all of Tenant's departments, corporate offices and the names of affiliates of
Tenant, in accordance with the practice followed, as of the date hereof, or as
the same may from time to time during the term of this Lease be changed with
Tenant's consent. At any time that Tenant no longer occupies all of the
rentable area of the Building (excluding any on-site management office),
whether as a result of a sublease a surrender of a portion of the Premises as
permitted hereunder, Landlord may install such a directory at Tenant's cost (to
be reimbursed to Landlord within 10 days after demand). Whether installed as
part of the Initial Improvements or by Tenant or Landlord, Landlord shall
maintain such directory as an Operating Expense.
34. NO SECURITY INTEREST. Landlord shall not have a security
interest in any personal property of Tenant.
35. MANAGEMENT AND OPERATION OF BUILDING.
35.1 Landlord agrees that the Building shall be operated
so that:
(a) Access is available to the Premises for Tenant and
its employees and invitees at all times, subject to reasonable security and
Building access procedures imposed by Landlord and any security arrangements
made by Tenant as permitted under the Lease;
(b) Heat and air-conditioning shall be furnished in
season, between the hours of 7:00 AM and 6:00 PM on weekdays and 8:00 AM to
1:00 PM on Saturdays ("Normal Building Hours"), which shall be deemed to
exclude the following holidays ("Building Holidays"): New Year's Day, Memorial
Day, Fourth of July, Labor Day, Thanksgiving Day, and Christmas Day, and any
other holiday agreed to by Landlord and Tenant. Heat and air-conditioning at
times other than Normal Building Hours ("After Hours HVAC") shall be provided
at Tenant's expense, provided Tenant gives Landlord a request for after hours
HVAC at least one business day in advance. Whenever machines or equipment
which generate heat 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 in
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the Premises, and the costs therefor, including the costs of installation,
operation and maintenance thereof, shall be paid by Tenant as additional rent
upon demand by Landlord.
(c) All Building passenger elevators and freight
elevators shall be available for use at all times during Normal Business Hours
(subject to shutdown of individual elevators by mechanical breakdown or for
maintenance or inspection). At lease one passenger elevator in each bank of
elevators shall be available at all other times, subject to reasonable security
procedures. Freight elevators shall be made available at times other than
Normal Building Hours upon reasonable prior notice to Landlord; provided that
Tenant shall pay for any costs of such use, including overtime costs for
building staff or security personal.
(d) Landlord shall supply hot and cold water for Building
lavatories at all times (except as required in connection with maintenance or
repairs).
(e) Landlord shall supply cleaning services on Monday
through Friday of each week, except on Building Holidays in accordance with
specifications as reasonably agreed by Landlord and Tenant from time to time.
The foregoing notwithstanding, Landlord shall not be required to provide
cleaning services to controlled access areas of the Premises. For purposes
hereof, "controlled access areas" means any areas of the Premises for which
access is controlled to an extent greater than customary for general office
space in the Denver Technological Center. If Tenant desires janitorial
services other than those provided by Landlord, 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 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) 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.
(g) 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 furnish, to any
extent, the building services required hereunder, or any cessation thereof
resulting from any causes, 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. However, in the event that an interruption of Building
Services causes the Premises to be untenantable for a period of at least 10
consecutive business days, Monthly Rent shall be abated proportionately.
35.2 Landlord shall contract with a reputable third party
security service as an Operating Expense, to provide security services within
the Building consistent with other first class multitenant office buildings in
the Denver Technological Center. The foregoing notwithstanding, Tenant hereby
acknowledges and agrees that Landlord shall have no responsibility or liability
for security within the Building or the Premises or any surrounding areas and
Tenant, for itself and its employees, contractors, agents, invitees,
subtenants, successors and assigns, hereby waives and releases Landlord from
and all such responsibility and liability.
Tenant shall have the right to maintain at its
expense a separate staff of security personnel for Tenant's own Premises, the
exercise of which right shall be subject to Landlord's reasonable regulation
from time to time. In addition, so long as Tenant is the sole occupant of the
Building, Tenant, upon not less than 60 days prior notice to Landlord, may
elect to obtain security services, at Tenant's cost, in lieu of the security
services to be arranged by
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Landlord hereunder. Such Tenant arranged security, and any third party
provider of such security services, shall be subject to Landlord's reasonable
prior approval.
35.3 Tenant shall have the right to the use of the
following facilities in the Building, in a reasonable manner and subject to
Landlord's rules and regulations referred to in Paragraph 33:
(a) After the completion of the lawns, parking,
plazas and the lobbies of the Building, such areas may be used by Tenant on
reasonable prior written notice to Landlord for Tenant sponsored or civic and
charitable events and displays and Tenant related promotional events and
seasonal displays, in each case always consistent with the character of the
Building as a first-class office building in the Denver Technological Center
and in accordance with all applicable Legal Requirements, Insurance
Requirements and covenants, conditions and restrictions of record. As a
condition to any such use, Landlord may require that Tenant furnish evidence
(i) that Tenant has obtained any required governmental licenses or permits and
(ii) of public liability, special events or other insurance with respect
thereto, naming Landlord as an additional insured, and otherwise issued by
insurance companies and with coverages reasonably satisfactory to Landlord.
Tenant shall not unreasonably interfere with use of the Common Areas by other
tenants or occupants of the Building and Tenant shall be responsible for all
cost in connection with such special use, including additional or after-hours
security and cleaning services.
(b) Loading and receiving facilities for their
intended purpose with due regard to the requirements of other tenants in the
Building, if any, all without the payment of any additional rent or other
charges.
35.4 Subject to the provisions of Paragraph 3 and
Paragraph 14, Tenant shall have the right to operate at its expense a dining
facility or facilities and a florist shop within the Premises for its employees
and guests, and to sublet space to an operation of either of such facilities or
to contract for the operation of such facilities or for catering and food
services and vending.
35.5 Landlord agrees at all times to provide professional
management services to the Building by a manager ("Manager") having the
financial ability, management expertise and other resources to enable such
Manager to maintain and operate the Building to the standard of a first-class
office building in the Denver Technological Center or to provide management
from resources available to Landlord, including Landlord's own employees, which
are the equivalent of professional management services which would be available
from such an independent Manager.
So long as Landlord, or an Affiliate of Landlord, is
providing management to the Building, the requirements of the preceding
Paragraph shall have been satisfied.
A change in the management of the Building from
Landlord or an Affiliate of Landlord shall not be made without the prior
approval of Tenant, such approval not to be unreasonably withheld or delayed.
Incident to making any change, Landlord may present to Tenant a list of
proposed Managers for advance approval and, if submitted, Tenant agrees to
respond promptly to the acceptability of the names on the list. Further, on
Tenant's request for reasonable cause, the Manager shall replace the person who
acts as the Building Manager.
35.6 Landlord and the Manager shall make reasonable
efforts to provide a draft Operating Expense and Capital Budget to Tenant by
October 1 of each calendar year (the "Budget") estimating the Operating
Expenses for the Building for the following year. Representatives of Landlord
and the Manager will consult with Tenant during the thirty (30)-day period next
ensuing, if Tenant shall reasonably request, for the purposes of reviewing the
contents of the Budget. Nothing in this Paragraph 35.6 shall be construed as
entitling Tenant to approve or disapprove the Budget or to relieve Tenant from
the obligation to pay Tenant's share of Operating Expenses. It is, however,
the agreement of the parties that Tenant shall have an opportunity to review
the Budget to enable Tenant to recommend to Landlord areas in which adjustment
of the Budget may be appropriate.
35.7 Tenant agrees that all of Tenant's personal property
in or upon the Premises, the Building or the Premises shall be at Tenant's risk
except as specifically hereinafter provided. If the whole or any part thereof
shall
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be damaged, destroyed, stolen or removed, Landlord shall have no responsibility
for such damage or loss unless caused by (i) the willful or negligent act of
Landlord, its agent, servants, contractors or employees or (ii) failure on the
part of Landlord to carry out an obligation to repair under this Lease after
notice to Landlord of the condition requiring such repair and the expiration of
reasonable time after such notice has been received without such repair having
been made or where due to the negligence of Landlord continuing after notice to
Landlord of the condition claimed to constitute negligence of Landlord and the
expiration of a reasonable time after such notice to Landlord without such
condition having been cured or corrected. The foregoing sentence shall not
apply to an insured loss where a waiver of subrogation applies under this
Lease.
36. SELF HELP. Tenant shall have the rights of self-help and
offset on the terms and conditions specified in this Section.
If Landlord permits to exist a condition (the "Condition")
which is in breach of Landlord's maintenance, repair, service and restoration
or other obligations under this Lease in the Premises, the Building and the
Premises or shall fail to make timely payment of Taxes, as required by
Paragraph 8, and Tenant makes a good faith determination that the existence or
continuation thereof will materially adversely affect Tenant's use and
occupancy of the Premises or the character of the Building as a first-class
office building in the Denver Technological Center, Tenant may give notice (the
"First Notice") to Landlord specifying in reasonable detail (x) the Condition
and (y) a reasonable time within which Landlord is to cure such Condition which
shall not be less than 30 days. If Landlord shall fail to provide a good faith
written response to the First Notice denying liability, or if Landlord's
response is that Landlord will cure the condition and Landlord fails to
commence within a reasonable time or thereafter fails diligently to proceed to
completion the cure of such Condition, Tenant shall have the right to commence
to cure such Condition for the account of Landlord (subject to the terms of
this Section) at any time after giving to Landlord an additional notice (the
"Cure Notice") referring to the First Notice, and describing the respects in
which Landlord has failed to comply with the First Notice and Tenant's intended
action as a consequence thereof.
In a serious emergency of substantial magnitude which
immediately and materially interferes with Tenant's business operations in the
Building (for example, an interruption of utility service, lack of access of
the Building and malfunction, or loss of HVAC), Tenant shall have the right to
proceed to remedy the Condition, but Tenant shall give immediate oral notice
(confirmed by a written notice given in accordance with the notice clause of
this Lease) of the Condition claimed to require immediate action and Tenant's
intentions with respect thereof. The right on the part of Tenant so to proceed
shall be at Tenant's own risk and Tenant shall be responsible for any damage to
the Building caused by Tenant's action. Tenant's action shall not give rise to
a right of setoff.
In such event, Tenant shall be entitled to reasonable access
to any part of the Building as may be required to permit Tenant to cure the
Condition, but Tenant agrees to minimize interference with any other operation
in the Building or other tenants' use of any part of the Building and to
exonerate and indemnify Landlord from and against all claims of other tenants
and other persons in respect thereof. Whenever practicable, consistent with
the nature of the Condition, work in space other than the Premises shall be
performed during non-business hours.
For purposes of this Paragraph 36, Landlord's failure to pay
Taxes, as provided in Paragraph 8, two (2) business days at least before the
date on which and to the extent the same must be paid to avoid loss of the
right to proceed for an abatement thereof or Landlord's failure to cause to be
maintained or renewed insurance as required by this Lease shall, without
notice, be treated as a Condition which Tenant is entitled to cure as if notice
thereof had been given by Tenant to Landlord and as if Landlord had failed to
cure the same within a reasonable time.
Tenant shall not be entitled to set-off or reimbursement from
Landlord for the costs of curing such Conditions and Tenant hereby acknowledges
that if performed by Landlord, any such costs would have been included in
Operating Expenses and paid by Tenant.
37. TERMINATION. Tenant shall have the option, exercisable, by
notice to Landlord twelve (12) months prior to the end of year 10 of the Lease
to terminate this Lease effective at the end of year 10 upon payment of all
unpaid
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Base Rent and Operating Expenses then due and owing plus a termination fee of
$31.25 per rentable square foot within the Premises.
38. OPTIONS TO EXTEND.
38.1 Provided that as of the time of the giving of the
Tenant's extension notice and the commencement date of the extension term, (x)
Tenant is the Tenant originally named herein or successors or affiliates of
Tenant, (y) Tenant actually occupies at least 75% of the Premises, and (z) no
uncured Event of Default exists; then Tenant shall have the successive options
to extend the term of this Lease for two (2) successive five (5) year periods
from and after the date of the expiration of the original term thereof. Tenant
shall exercise each option of extension by notice to Landlord given not later
than the last to occur of the date which is twelve (12) months prior to the
expiration of the then current (initial or extended) term. However, in any
event, the term of this Lease shall expire on the day scheduled therefor
without extension if such option to extend shall not have been exercised by
Tenant. If Tenant, having exercised an available extension option, is in
occupancy of space during an extended term of this Lease and the Base Rent and
any other applicable charge have not been established for such period then
Tenant shall be obligated to pay the Base Rent and any other charge for such
period when established, retroactively to the first day of the period following
the expiration of the initial or an extended term of this Lease.
Notice from Tenant to Landlord of the exercise of an
option shall always be sufficient if notice thereof is given as required by the
notice clause of this Lease and if signed by an authorized officer of Tenant
and such notice is accompanied by the certification of authority of such
officer from a suitable attesting officer, such as a vice president of Tenant,
and, upon the giving of such notice, the term of this Lease shall be
automatically extended for the period next ensuing, without the requirement of
the execution of any further instrument, upon all the terms, provisions and
conditions set forth in this Lease, except that the Base Rent and other charges
payable on account of each such extension shall be adjusted as set forth below
and that there shall be no right to extend beyond those provided herein.
38.2 (a) The Base Rent payable by Tenant to Landlord
for the first extension term shall be the greater of (i) the Base Rent in
effect for the last year of the initial term or (ii) an amount equal to the
product of (x) the initial Base Rent determined under the Supplement to Lease
Agreement and (y) 1.800944.
(b) The Base Rent payable by Tenant to Landlord
during the second extension term shall be the greater of (i) the Base Rent
applicable to the last year of the previous extension terms or (ii) the then
prevailing market rate for renewal leases of comparable space in the Denver
Technological Center, taking into account the size of the Lease, the length of
the renewal terms, market escalations and the credit of Tenant ("Fair Market
Rent"). The Base Rent shall not be further reduced by reason of any costs or
expenses saved by Landlord by reason of Landlord's not having to find a new
tenant for such premises (including, without limitation, brokerage commissions,
costs of improvements, rent concessions or lost rental income during any
vacancy period). In the event Landlord and Tenant fail to reach an agreement
in writing as to such Base Rental rate at least six (6) months prior to the
expiration of the Lease, then Tenant's exercise of the second renewal option
shall be deemed withdrawn and the Lease shall terminate on the expiration date
of the first extension period, unless Tenant or Landlord invokes the
arbitration procedure provided below to determine the Fair Market Rent.
(c) Arbitration to determine the Fair Market Rent
shall be in accordance with the procedures set forth on attached Exhibit E;
provided that the rules applied shall be the Real Estate Valuation Arbitration
Rules of the American Arbitration Association. Either party may elect to
arbitrate by sending written notice to the other party and the Denver area
regional office of the American Arbitration Association within 5 days after the
expiration of the negotiating period provided in Paragraph (b), invoking the
binding arbitration provisions of this Paragraph and Exhibit E.
Notwithstanding any other provision herein or in Exhibit E, the Fair Market
Rent determined by the arbitrator shall not be less than, and the arbitrator
shall have no authority to determine a Fair Market Rent less than, the Base
Rent in effect as of the scheduled expiration of the Lease Term.
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(d) The determination of Base Rent does not
reduce the Tenant's obligation to pay or reimburse Landlord for Operating
Expenses and other reimbursable items as set forth in the Lease, and Tenant
shall reimburse and pay Landlord as set forth in the Lease with respect to such
Operating Expenses and other items with respect to the Premises during such
extension term without regard to any cap on such expenses set forth in the
Lease.
(e) Landlord shall have no obligation to
refurbish or otherwise improve the Premises for any extension term.
39. TENANT'S RIGHT OF FIRST OFFER.
(a) Provided that as of the date of the giving of
Landlord's Notice, (x) Tenant is the Tenant originally named herein or its
affiliate or successor, (y) Tenant actually occupies not less than 75% of the
rentable area of the Building, and (z) no Event of Default has occurred and is
continuing, if at any time during the Lease Term Landlord desires to sell or
transfer the Building, then Landlord, before offering the Building to anyone,
shall offer to Tenant the right to purchase the Building for the price (net of
commissions) and on the same terms and conditions upon which Landlord intends
to offer to sell or transfer Building. The foregoing shall not apply to any
foreclosure or deed in lieu of foreclosure nor to a transfer to an Affiliate,
even if the transfer takes the form of a purchase, but a subsequent transfer or
sale shall be subject to the provisions of this paragraph.
(b) Such offer shall be made by Landlord to
Tenant in a written notice (hereinafter called the "Offer Notice") which offer
shall specify the terms upon which Landlord intends to offer the Building for
sale. Tenant may accept the offer set forth in the Offer Notice by delivering
to Landlord an unconditional acceptance (hereinafter called "Tenant's Notice")
of such offer within 10 business days after delivery by Landlord of the Offer
Notice to Tenant. Time shall be of the essence with respect to the giving of
Tenant's Notice. If Tenant does not deliver Tenant's Notice within the time
period required hereunder, Tenant shall be deemed to have declined Landlord's
offer.
(c) If Tenant at any time declines or is deemed
to have declined Landlord's offer, Landlord shall be free to sell or transfer
the Building, including on terms which may be less favorable to Landlord than
those offered to Tenant; provided that Landlord may not sell the Building for a
purchase price (net of commissions) which is less than 90% of the purchase
price offered to Tenant without first re-offering the Building to Tenant at
such lesser price in accordance with the provisions of this Paragraph 39. Upon
any sale permitted hereunder following an offer which Tenant declined or is
deemed to have declined, the provisions of this Paragraph 39 shall terminate
and be of not further force and effect and Tenant shall be deemed to have
waived any further rights hereunder.
(d) The provisions of this Paragraph 39 shall not
apply to any sale or transfer of the Building as part of a portfolio sale which
includes other property.
(e) The closing of any sale to Tenant pursuant to
this Paragraph 39 shall be conducted through an escrow established at a title
company acceptable to both Landlord and Tenant. All deliveries shall be
deposited in escrow and all closing deliveries and disbursements shall be made
through the escrow. The closing shall occur no later than 45 days following
delivery of Tenant's Notice to Landlord.
(f) Landlord shall convey to Tenant fee simple
title to the Building by special warranty deed (warranting title by, through,
or under Landlord, but not otherwise) subject only to (i) all matters of record
as of the date of Landlord's acquisition of the Building pursuant to the
Agreement of Purchase and Sale between Landlord and Tenant dated as of
______________, 1996 (the "Purchase Agreement"), (ii) matters created by or
arising through Tenant, (iii) rights of tenants under this Lease and any other
lease for space in the Building and (iv) those matters which a correct survey
would show, but free and clear of any liens or any other exceptions created by,
under, or through Landlord. Landlord shall assign to Tenant all its right,
title and interest in and to all contracts, warranties, permits, approvals, and
other intangible property related to the Building.
(g) There shall be no proration of taxes or other
expenses.
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(h) The Lease shall be terminated as of the
closing. All rent and other payments due by Tenant to Landlord under the Lease
shall be prorated to the date of Closing and shall be deposited into the escrow
and disbursed to Landlord at closing.
(i) Landlord makes no, and at closing Tenant
shall waive in writing satisfactory to Landlord any, warranty or representation
with respect to the Building or the Premises (other than title to the Premises
as provided in the deed) and shall release Landlord from any right or claims,
known or unknown, with respect to the physical or environmental condition of
the Premises or the compliance of the Premises with applicable law.
(j) Landlord may conduct the sale as a tax-free
exchange pursuant to Section 1031 of the Internal Revenue Code. Such exchange
shall be conducted through a qualified intermediary, at no cost to Tenant, and
without affecting Landlord's obligations to Tenant. Tenant shall not be
required to take title to any other property in connection with a Section 1031
exchange.
(k) Tenant's exercise of its option to purchase
hereunder is irrevocable. Time is of the essence.
(l) Only the Tenant originally named herein or a
Successor of such Tenant may exercise this Purchase Option. The rights of
Tenant hereunder are not assignable except to a Successor to which the Lease is
assigned as permitted hereunder and shall terminate automatically upon any
termination of the Lease other than as a result of default by Landlord.
Further, no such right is exercisable if as of the date of exercise of the
right or the closing, the Lease has terminated or an Event of Default has
occurred and is continuing.
40. MISCELLANEOUS. (a) Any payments or charges due from Tenant
to Landlord hereunder shall be considered rent for all purposes of this Lease.
(b) If and when included within the term
"Tenant," as used in this instrument, there is more than one person, firm or
corporation, each shall be jointly and severally liable for the obligations of
Tenant.
(c) All notices required or permitted to be given
under this Lease shall be in writing and shall be sent by registered or
certified mail, return receipt requested, or by a reputable national overnight
courier service, postage prepaid, or by hand delivery addressed to the parties
at their addresses. Either party may by notice given aforesaid change its
address for all subsequent notices. Except where otherwise expressly provided
to the contrary, notice shall be deemed given upon delivery.
(d) At Landlord's request from time to time
Tenant shall furnish Landlord with true and complete copies of its most recent
annual and quarterly financial statements prepared by Tenant or Tenant's
accountants and any other financial information or summaries that Tenant
typically provides to its lenders or shareholders.
(e) Except as set forth in the following
sentence, neither this Lease nor a memorandum of lease shall be filed by or on
behalf of Tenant in any public record. The parties agree to execute, prepare
and record a memorandum of lease stating only the names and addresses of the
parties, the description of the Premises, the term of this Lease, the Right of
First Offer and the Extension Options described in Paragraph 38.
(f) The normal rule of construction to the effect
that any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Lease or any exhibits or amendments
hereto.
(g) The submission by Landlord to Tenant of this
Lease shall have no binding force or effect, shall not constitute an option for
the leasing of the Premises, nor confer any right or impose any obligations
upon either party until execution of this Lease by both parties.
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(h) Words of any gender used in this Lease shall
be held and construed to include any other gender, and words in the singular
number shall be held to include the plural, unless the context otherwise
requires. The captions inserted in this Lease are for convenience only and in
no way define, limit or otherwise describe the scope or intent of this Lease,
or any provision hereof, or in any way affect the interpretation of this Lease.
(i) Any amount not paid by Tenant within 10 days
after its due date in accordance with the terms of this Lease shall bear
interest from such due date until paid in full at the lesser of the highest
rate permitted by applicable law or 15 percent per year. It is expressly the
intent of Landlord and Tenant at all times to comply with applicable law
governing the maximum rate or amount of any interest payable on or in
connection with this Lease. If applicable law is ever judicially interpreted
so as to render usurious any interest called for under this Lease, or
contracted for, charged, taken, reserved, or received with respect to this
Lease, then it is Landlord's and Tenant's express intent that all excess
amounts theretofore collected by Landlord be credited on the applicable
obligation (or, if the obligation has been or would thereby be paid in full,
refunded to Tenant), and the provisions of this Lease immediately shall be
deemed reformed and the amounts thereafter collectible hereunder reduced,
without the necessity of the execution of any new document, so as to comply
with the applicable law, but so as to permit the recovery of the fullest amount
otherwise called for hereunder.
(j) Construction and interpretation of this Lease
shall be governed by the laws of the state in which the Premises are located,
excluding any principles of conflicts of laws.
(k) Time is of the essence as to the performance
of Landlord's and Tenant's obligations under this Lease.
(l) All exhibits and addenda attached hereto are
hereby incorporated into this Lease and made a part hereof. In the event of
any conflict between such exhibits or addenda and the terms of this Lease, such
exhibits or addenda shall control.
(m) The following definitions apply in this Lease:
(i) A Successor (limited to a successor
by merger or other form of business acquisition) of
Tenant named herein shall be any corporation or
entity into which Tenant named herein shall be merged
or with which Tenant named herein shall be
consolidated, or any successor (by merger or
consolidation) thereto. An Affiliate of Tenant named
herein shall be a corporation or other entity which
owns or controls (by reason of stockholdings therein)
Tenant named herein, or which is owned by or
controlled by (by reason of stockholdings therein)
Tenant named herein or which is owned by controlled
by (by reason of stockholdings therein) a corporation
which owns or controls (by reason of stockholdings
therein) Tenant named herein. Holders of beneficial
interest shall be included within the meaning of the
term "stockholdings." Where a Successor to or
Affiliate of Tenant is in occupancy of space meeting
minimum requirements for certain rights conferred on
Tenant under the terms of this Lease and the space
occupied by Tenant and such Successor or Affiliate
aggregates such minimum, Tenant shall have the same
rights as if itself were in occupancy thereof.
An Affiliate of Landlord shall be an
entity which owns or controls (by reason of
stockholdings therein or, if not a corporation, by
reason of the ownership or control of beneficial
interests therein) Landlord, or which is owned by or
controlled by (by reason of stockholdings therein, or
if not a corporation, by reason of ownership or
control of beneficial interests therein) Landlord, or
which is owned by or controlled by (by reasons of
stockholdings therein or, if not a corporation, by
reason of the ownership or control of beneficial
interests therein) a corporation or other entity
which owns or controls (by reason of stockholdings
therein or, if not a corporation, by reason of the
ownership or control of beneficial interests therein)
Landlord.
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(ii) The term "business day" means those
days other than a Saturday or Sunday on which, under
applicable law or regulation, banks in Denver,
Colorado, are not prohibited by law from being open
for business.
Whenever the last day for performance
of an act or satisfaction of an obligation falls on a
day which is not a business day, such act shall be
performed or obligation satisfied on the next regular
business day in Denver, Colorado.
(o) All notices required or permitted hereunder shall be
in writing and shall be served on the parties at the addresses set forth below.
Any such notices shall be either (1) sent by overnight delivery using a
nationally recognized overnight courier, in which case notice shall be deemed
delivered one business day after deposit with such courier, (2) sent by
telefax, in which case notice shall be deemed delivered upon transmission of
such notice, or (3) sent by personal delivery, in which case notice shall be
deemed delivered upon receipt or refusal of delivery. A party's address may be
changed by written notice to the other party; provided, however, that no notice
of a change of address shall be effective until actual receipt of such notice.
Copies of notices are for informational purposes only, and a failure to give or
receive copies of any notice shall not be deemed a failure to give notice.
Tenant Notice Address: ▇.▇. ▇▇▇▇▇▇▇ & COMPANY
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Director of Real Estate
Telephone: 303/▇▇▇-▇▇▇▇
Facsimile: 303/488-1690
With a copy to: ▇.▇. ▇▇▇▇▇▇▇ & COMPANY
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telephone: 303/▇▇▇-▇▇▇▇
Facsimile: 303/488-4679
And with a copy to: ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Telephone: 303/▇▇▇-▇▇▇▇
Facsimile: 303/298-0940
Landlord Notice Address: CARRAMERICA REALTY, L.P.
Attention: Market Officer
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: 303/▇▇▇-▇▇▇▇
Facsimile: 303/779-6587
With a copy to: CARRAMERICA REALTY, CORPORATION
Attention: Asset Management
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Telephone: 202/▇▇▇-▇▇▇▇
Facsimile: 202/638-0102
And a copy to: ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: 505/▇▇▇-▇▇▇▇
Facsimile: 505/820-7334
27
31
SIGNATURE PAGE
TO
BUILD-TO-SUIT LEASE AGREEMENT
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
the day and year first above written.
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TENANT: LANDLORD:
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▇. ▇. ▇▇▇▇▇▇▇ & COMPANY, L.P. CARRAMERICA REALTY, L.P.
a Colorado corporation a Delaware limited partnership
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By: CarrAmerica Realty GP Holdings, Inc.,
a Delaware corporation,
general partner
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By: By:
------------------------------------------- -------------------------------------------
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
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Title: Vice President and General Counsel Title:
----------------------------------------
=====================================================================================================
32
List of Exhibits:
-----------------
EXHIBIT A - Legal Description of Land
EXHIBIT B - Schedule and Depiction of Rentable Areas
EXHIBIT C - Operating Expenses
EXHIBIT D - Rules and Regulations
EXHIBIT E - Arbitration
33
EXHIBIT A
LEGAL DESCRIPTION OF LAND
PARCEL 1
A PARCEL OF LAND BEING LOCATED IN THE DENVER TECHNOLOGICAL CENTER EAST IN
SECTIONS 8 AND 9, TOWNSHIP 5 SOUTH, RANGE 67 WEST OF THE 6TH PRINCIPAL
MERIDIAN, CITY AND COUNTY OF DENVER, STATE OF COLORADO, BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
COMMENCING AT THE WEST QUARTER CORNER OF SECTION 9; THENCE ALONG THE EAST-WEST
CENTERLINE OF SECTION 9 BEARING SOUTH 89 DEGREES 59 MINUTES 25 SECONDS EAST,
279.73 FEET TO THE TRUE POINT OF BEGINNING;
THENCE NORTH 52 DEGREES 41 MINUTES 01 SECONDS WEST, 368.62 FEET; THENCE ALONG A
NON-TANGENT CURVE TO THE RIGHT HAVING AN ARC LENGTH OF 563.61 FEET, A CENTRAL
ANGLE OF 30 DEGREES 04 MINUTES 04 SECONDS, A RADIUS OF 1,074.00 FEET AND A
CHORD WHICH BEARS NORTH 52 DEGREES 23 MINUTES 11 SECONDS EAST, 557.17 FEET;
THENCE SOUTH 27 DEGREES 16 MINUTES 44 SECONDS EAST, 79.29 FEET; THENCE ALONG A
NON-TANGENT CURVE TO THE RIGHT HAVING AN ARC LENGTH OF 413.05 FEET, A CENTRAL
ANGLE OF 23 DEGREES 47 MINUTES 07 SECONDS, A RADIUS OF 995.00 FEET AND A CHORD
WHICH BEARS NORTH 79 DEGREES 41 MINUTES 12 SECONDS EAST, 410.10 FEET TO A POINT
OF NON-TANGENCY; THENCE NORTH 43 DEGREES 56 MINUTES 35 SECONDS EAST, 67.90 FEET
TO THE RIGHT-OF-WAY LINE OF SOUTH ULSTER STREET PARKWAY; THENCE ALONG SAID
RIGHT-OF-WAY LINE BEING A CURVE TO THE LEFT HAVING AN ARC LENGTH OF 73.83 FEET,
A CENTRAL ANGLE OF 05 DEGREES 13 MINUTES 20 SECONDS, A RADIUS OF 810.00 FEET
AND A CHORD WHICH BEARS SOUTH 48 DEGREES 40 MINUTES 05 SECONDS EAST, 73.80
FEET; THENCE LEAVING SAID RIGHT-OF-WAY LINE SOUTH 35 DEGREES 51 MINUTES 07
SECONDS WEST, 95.85 FEET TO POINT OF CURVATURE; THENCE ALONG A CURVE TO THE
LEFT HAVING AN ARC LENGTH OF 374.78 FEET, A CENTRAL ANGLE OF 35 DEGREES 36
MINUTES 58 SECONDS, A RADIUS OF 602.79 FEET AND A CHORD WHICH BEARS SOUTH 18
DEGREES 02 MINUTES 45 SECONDS WEST, 368.70 FEET TO A POINT OF TANGENCY; THENCE
SOUTH 00 DEGREES 14 MINUTES 25 SECONDS WEST, 243.18 FEET; THENCE ALONG A
NON-TANGENT CURVE TO THE LEFT HAVING AN ARC LENGTH OF 257.58 FEET, A CENTRAL
ANGLE OF 45 DEGREES 28 MINUTES 50 SECONDS, A RADIUS OF 324.50 FEET AND A CHORD
WHICH BEARS SOUTH 60 DEGREES 03 MINUTES 24 SECONDS WEST, 250.87 FEET; THENCE
NORTH 52 DEGREES 41 MINUTES 01 SECONDS WEST, 379.45 FEET TO THE TRUE POINT OF
BEGINNING.
BASIS OF BEARINGS: ASSUMED ALONG THE SOUTHEASTERLY LINE OF DTC EAST, WHICH IS
SITUATED ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ PARKWAY, NORTHWEST OF UNION
AVENUE PARKWAY, AND EAST OF INTERSTATE HIGHWAY I-25, AND BEING THE NORTHERLY
RIGHT- OF-WAY LINE OF UNION AVENUE PARKWAY, BOOK 29, PAGE 56, AS MONUMENTED BY
A PIN AND CAP PLS 9655 BEING THE EASTERLY CORNER OF PARCEL 1, RECEPTION NO.
▇▇-▇▇▇▇▇▇▇ AND A PIN AND CAP PLS 23899, BEARING NORTH 64 DEGREES 49 MINUTES 30
SECONDS WEST, 766.84 FEET.
34
PARCEL 2
A PARCEL OF LAND BEING LOCATED IN THE DENVER TECHNOLOGICAL CENTER IN SECTION 9,
TOWNSHIP 5 SOUTH, RANGE 67 WEST OF THE SIXTH PRINCIPAL MERIDIAN, CITY AND
COUNTY OF DENVER, STATE OF COLORADO, BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
COMMENCING AT THE WEST QUARTER CORNER OF SECTION 9; THENCE N81 degrees 26'41"E,
808.84 FEET TO THE TRUE POINT OF BEGINNING; THENCE N00 degrees 14'25"E, 17.92
TO A POINT OF CURVATURE; THENCE 10.24 FEET ALONG THE ARC OF A CURVE TO THE
RIGHT HAVING A RADIUS OF 602.79 FEET, A CENTRAL ANGLE OF 00 degrees 58'22", AND
A CHORD WHICH BEARS N00 degrees 43'01"E, 10.24 FEET; THENCE 23.38 FEET ALONG
THE ARCH OF A CURVE TO THE LEFT HAVING A RADIUS OF 25.00 FEET, A CENTRAL ANGLE
OF 53 degrees 35'55", AND A CHORD WHICH BEARS N29 degrees 54'67"E, 22.64 FEET
TO A POINT OF COMPOUND CURVATURE; THENCE 167.63 FEET ALONG THE ARC OF A CURVE
TO THE RIGHT HAVING A RADIUS OF 592.29 FEET, A CENTRAL ANGLE OF 16 degrees
12'58", AND A CHORD WHICH BEARS N11 degrees 13'27"E, 167.07 FEET TO A POINT OF
REVERSE CURVATURE; THENCE 15.26 FEET ALONG THE ARC OF A CURVE TO THE LEFT
HAVING A RADIUS OF 10.00 FEET, A CENTRAL ANGLE OF 87 degrees 25'80", AND A
CHORD WHICH BEARS N24 degrees 23'00"W, 13.82 FEET TO A POINT OF TANGENCY;
THENCE N68 degrees 05'58"W, 0.87 FEET; THENCE 38.35 FEET ALONG THE ARC OF A
NON-TANGENT CURVE TO THE RIGHT HAVING A RADIUS OF 602.79 FEET, A CENTRAL ANGLE
OF 03 degrees 38'41", AND A CHORD WHICH BEARS N22 degrees 06'27"E, 38.34 FEET;
THENCE 23.79 FEET ALONG A NON-TANGENT CURVE TO THE LEFT HAVING A RADIUS OF
20.00 FEET, A CENTRAL ANGLE OF 52 degrees 25'54", AND A CHORD WHICH BEARS N52
degrees 08'18"E, 22.97 FEET TO A POINT OF REVERSE CURVATURE; THENCE 103.01
FEET ALONG AN ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF 592.29 FEET, A
CENTRAL ANGLE OF 09 degrees 57'53", AND A CHORD WHICH BEARS N30 degrees
52'18"E, 102.88 FEET TO A POINT OF TANGENCY; THENCE N35 degrees 51'07"E, 95.39
FEET TO THE SOUTHWESTERLY RIGHT-OF-WAY LINE OF SOUTH ULSTER STREET PARKWAY;
THENCE 44.90 FEET ALONG SAID SOUTHWESTERLY RIGHT-OF-WAY LINE BEING THE ARC OF A
CURVE TO THE LEFT HAVING A RADIUS OF 810.00 FEET, A CENTRAL ANGLE OF 03 degrees
10'35", AND A CHORD WHICH BEARS S53 degrees 36'39"E, 44.90 FEET; THENCE LEAVING
SAID SOUTHWESTERLY RIGHT-OF-WAY LINE S35 degrees 51'07"W, 32.45 FEET TO A POINT
OF CURVATURE; THENCE 44.40 FEET ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A
RADIUS OF 115.00 FEET, A CENTRAL ANGLE OF 22 degrees 07'23", AND A CHORD WHICH
BEARS S45 degrees 54'48"W, 44.13 FEET TO A POINT OF REVERSE CURVATURE; THENCE
35.10 FEET ALONG THE ARC OF A CURVE TO THE LEFT HAVING A RADIUS OF 85.00 FEET,
A CENTRAL ANGLE OF 23 degrees 39'28", AND A CHORD WHICH BEARS S46 degrees
08'46"W, 34.85 FEET TO A POINT OF COMPOUND CURVATURE; THENCE 334.44 FEET ALONG
THE ARC OF A CURVE TO THE LEFT HAVING A RADIUS OF 582.29 FEET, A CENTRAL ANGLE
OF 34 degrees 04'43", AND A CHORD WHICH BEARS S17 degrees 16'40"W, 329.53 FEET
TO A POINT OF TANGENCY; THENCE S00 degrees 14'25"W, 16.34 FEET; THENCE 40.54
FEET ALONG THE ARC OF A CURVE TO THE LEFT HAVING A RADIUS OF 550.00 FEET, A
CENTRAL ANGLE OF 04 degrees 13'25", S87 degrees 52'54"W, 40.35 FEET TO THE TRUE
POINT OF BEGINNING. SAID PARCEL CONTAINS 0.37 ACRES (10030.87 SQUARE FEET),
MORE OR LESS.
BASIS OF BEARINGS: ASSUMED ALONG THE SOUTHEASTERLY LINE OF DTC EAST, WHICH IS
SITUATED ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ PARKWAY, NORTHWEST OF UNION
AVENUE PARKWAY, AND EAST OF INTERSTATE HIGHWAY I-25, AND BEING THE NORTHERLY
RIGHT- OF-WAY LINE OF UNION AVENUE PARKWAY, BOOK 29, PAGE 58, AS MONUMENTED BY
A PIN AND CAP PLS 9000 BEING THE EASTERLY CORNER OF PARCEL 1, RECEPTION NUMBER
▇▇-▇▇▇▇▇▇▇ AND A PIN AND CAP PLS 23899 BEARING N64 degrees 49'20"W, 766.84
FEET.
35
EXHIBIT B
SCHEDULE AND DEPICTION OF RENTABLE AREAS
[See Attached]
36
EXHIBIT C
OPERATING EXPENSES ADDENDUM
A. Operating Expenses. The term "Operating Expenses" as used in
the Lease means all costs and expenses incurred by Landlord in owning,
managing, operating, maintaining, servicing, insuring and repairing the
Building, 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:
1. premiums and other charges for insurance (including,
but not limited to, property insurance, rent loss insurance and liability
insurance and deductibles);
2. 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; provided that so
long as the Building is managed by Landlord or an Affiliate of Landlord,
management fees included in Operating Expenses in any year shall not exceed
2.5% of Base Rent for such year;
3. 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, the cost of
maintaining and repairing all mechanical, electrical and other Building
systems, costs of providing hot and cold water, electrical or any other energy
supplied to the Building, elevator maintenance and operation, and other service
contracts;
4. except as expressly excluded below, costs of capital
expenditures made by Landlord in order to comply with its maintenance
obligations under the Lease, or for the purpose of complying with Legal
Requirements or Insurance Requirements or that are intended to result in a net
decrease in Operating Expenses or improve building safety; provided that any
such expense in excess of $5,000 (any such expense which is less than or equal
to $5,000 may be included in Operating Expenses in the year incurred) shall be
amortized over the useful life of such capital improvement (determined in
accordance with GAAP but in no event longer than 15 years), with interest
thereon at the rate of 10% per annum.
5. 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 employee benefits, whether statutory or
otherwise but excluding club memberships, events tickets or other similar
fringe benefits) and of all employees of Landlord or any Affiliate of Landlord
employed in or who perform services or provide supervision in connection with
the operation, maintenance, repair and administration of the Building and
related grounds and improvements (including nonadministrative personnel but
excluding any employees located outside of the Denver metropolitan area and (i)
if the Landlord employs a dedicated building manager for the Building,
excluding any executive employee above the level of building manager or (ii) if
landlord does not employ a dedicated building manager for the Building,
excluding any executive employees above the level of director of property
management or director of operations), and amounts paid to contractors and
subcontractors in connection with any of the foregoing (with respect to
employees of Landlord or any Affiliate of Landlord which are not exclusively
employed in connection with the Building, Operating Expenses shall include a
pro rata allocation of costs and expenses related to such employees, as
reasonably determined by Landlord);
6. the cost of any security services provided or
arranged by Landlord (but not for any period for which Tenant elects to provide
security in lieu of security provided by Landlord, as permitted in the Lease);
C-1
37
7. legal fees, and accounting, architectural and other
professional fees and expenses incurred in connection with the operation,
maintenance repair and administration of the Building and related improvements
(but not including fees and expenses of in-house accountants employed by
Landlord or any Affiliate of Landlord);
8. costs of any service not provided to the Building on
the Rent Commencement Date but thereafter provided by Landlord at the request
of Tenant or in the prudent management of the Building;
9. cost of maintenance and replacement of landscaping,
the cost of maintenance, resurfacing and restriping of parking areas, and the
cost of maintenance and repair of Common Areas and cleaning services and
supplies furnished to Building or the Premises;
10. costs associated with the provision or operation of
any common facilities and service amenities;
11. the cost of maintaining management or engineering
offices for the Building (including administrative expenses but excluding rent
on any such offices), which offices may be located in another building, and
this expense may include a reasonable allocation of such costs related to
maintaining offices that Building management and engineering personnel occupy
in off-site offices of Landlord or any Affiliate of Landlord;
12. electricity, water, sewer and other utility charges
not billed directly to tenants or occupants;
13. any and all Taxes;
14. expenses (including reasonable attorneys' fees and
appraisers' fees) incurred in reviewing, protesting or seeking a reduction of
Taxes, which shall be sought solely at Landlord's sole discretion;
15. any dues, assessments or costs payable to owner's
associations or special districts or under any covenants, conditions and
restrictions or easements of record;
16. any costs of maintaining and repairing the Access
Road (as such term is defined in the Conveyance of Easement (the "Access
Easement") between Landlord and Tenant of even date with this Lease), including
Landlord's share under the Access Easement of any costs incurred by any party
other than Landlord (such costs shall be included in Operating Expenses in the
year incurred and not amortized, without regard to whether such costs
constitute capital expenditures); provided that Operating Expenses shall not
include any of such costs to the extent that Landlord is reimbursed for any
such costs;
17. any other costs or expenses expressly included in
Operating Expenses pursuant to the Lease.
B. Exclusions from Operating Expenses. Anything in Paragraph A
above notwithstanding, the following items shall not be included in Operation
Expenses:
1. capital expenditures incurred in connection with
maintaining the structural soundness of the roof (but not the integrity of the
roof membrane), foundation, structural steel and exterior walls of the Building
(damages caused by Tenant, its employees, agents and contractors excluded).
The term "walls" as used in this Paragraph shall not include windows, glass or
plate glass, flashing, curtain walls, doors, or entries;
2. all costs associated with the operation of the business of
the entity which constitutes Landlord, as distinguished from the costs of
Building operations, management and maintenance, including, but not limited to,
costs of partnership accounting and legal matters, costs of defending any
lawsuits with any mortgagee (except as the actions of Tenant may be in issue),
costs of selling, syndicating, financing, mortgaging or hypothecating any of
the Landlord's interest in the Building or the Land, and costs of any disputes
between Landlord and its employees;
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3. costs of disputes of Landlord with Building management, or
costs incurred in connection with disputes with Tenant or any other tenants;
4. costs (including permit, license and inspection fees and
tenant allowances or other incentives) associated with preparing any vacated
space in the Building for occupancy by any new tenant, including costs of space
planning, renovating, improving or decorating, painting or redecorating vacant
space;
5. any advertising or promotional expense relating to the
Building;
6. any costs of services sold or provided to tenants or other
occupants which are paid or reimbursed directly by such tenants or occupants,
rather than through Operating Expenses;
7. expenses in connection with services or other benefits
which are provided to another tenant or occupant and which are not services
required hereunder or generally made available to all tenants or occupants of
the Building;
8. depreciation and amortization of the Building, other than
amortization of capital expenses as provided in Paragraph A above;
9. costs incurred due to violation by Landlord or any
managing agent or any tenant of the terms and conditions of any lease;
10. interest on debt or amortization payments on any
mortgages or deeds of trust or any other debt service or instrument encumbering
the Building or Land;
11. any cost or expense related to removal, cleaning,
abatement or remediation of "hazardous materials" or environmental conditions
which were not located on the Land or did not exist as of Project Close-Out and
which were not deposited, released or caused by Tenant, its subtenants,
assignees or their respective agents, contractors, employees, licensees or
invitees;
12. any compensation paid to clerks, attendants, concierges
or other persons working in or managing commercial concessions which charge
fees or sales prices and which are not part of the services provided to all
tenants or occupants of the Building;
13. the cost of repairs or other work incurred by reason of
fire, windstorm or other casualty (except that deductibles paid pursuant to any
insurance shall be included as Operating Expenses) or by the exercise of the
right of eminent domain to the extent that Landlord is compensated therefor
through proceeds of insurance or condemnation awards, or would have been so
reimbursed if Landlord had in force all of the insurance required to be carried
by Landlord under the provisions of this Lease;
14. leasing commissions, attorney fees, costs and
disbursements and other expenses incurred in connection with negotiations or
disputes with tenants or other occupants or prospective tenants, or associated
with the enforcement of any leases;
15. "takeover" expenses incurred by Landlord with respect to
space located in another building of any kind or nature in connection with the
leasing of space in the Building;
16. costs of repair or replacement for any item covered by a
warranty to the extent that such costs are paid or reimbursed by the party
honoring such warranty;
17. costs for which Landlord is reimbursed by its insurance
carrier or by any tenant's insurance carrier or by any other entity (other than
through Operating Expense passthroughs); and
C-3
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18. any fines, costs, penalties or interest resulting from
the gross negligence or willful misconduct of the Landlord or its agents,
contractors, or employees.
C. Occupancy Adjustment. If during all or any portion of any
year the Building is not fully rented and occupied by tenants, Landlord may
elect to make an appropriate adjustment of Operating Expenses for such year,
employing sound accounting and management principles, to determine the
Operating Expenses that would have been paid or incurred by Landlord had the
Building been fully rented and occupied for the entire year, and the amount so
determined shall be deemed to have been the Operating Expenses for such year.
D. Tenant's Audit Right. At any time within 4 months after
Landlord has issued a statement of final reconciliation of Operating Expenses
payable by Tenant for the preceding year, and after at least 10 business days
prior written notice to Landlord, Tenant will have the right to review and
audit the books and records of Landlord relating to such Operating Expenses
during normal business hours and at the office of Landlord at which such books
and records are routinely maintained. The audit will be conducted at Tenant's
expense by a certified public accountant. If Tenant's audit reveals that the
Operating Expenses charged to Tenant exceed or were less than Tenant's share of
actual Operating Expenses, and such variance is confirmed by Landlord's
certified public accountant, then Landlord will reimburse Tenant for any
overcharge, or Tenant will pay to Landlord any undercharge, as applicable,
within 30 days after such final determination. In the event of a confirmed
overcharge of Operating Expenses to Tenant in excess of 5% of Tenant's share of
actual Operating Expenses in such year, Landlord also shall reimburse Tenant
for the reasonable cost of Tenant's audit if such audit was conducted by an
independent certified public accountant, but not in excess of an amount equal
to $5,000.
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EXHIBIT D
RULES AND REGULATIONS
1. The sidewalks, entrances, halls, corridors, elevators, and
stairways of the Building 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 at any time other than between the hours of 7:00 a.m. and 6:00 p.m.
weekdays which are not Building Holidays, to any person not producing either a
key to this Premises or a pass issued in accordance with the access and
security procedures for the Building. Landlord shall in no case be liable for
damages for the admission or exclusion of any person to or from the Building.
3. Landlord will furnish each Tenant with two keys to each door
lock in its Premises, and Landlord may make a reasonable charge for any
additional keys requested by Tenant. No Tenant shall have any keys made for
its Premises; nor 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, shall deliver to Landlord all keys in such Tenant's possession for all
locks and bolts in the Building.
4. In order that the Building may be kept in a state of
cleanliness, subject to any agreed security procedures, Tenant shall permit
Landlord's employees (or Landlord's agent's employees) to clean its Premises
and except as expressly agreed by Landlord, no Tenant shall employ any
person(s) other than Landlord's employees (or Landlord's agents 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 its Premises. Tenant will see that during any periods of
nonuse:
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).
In the event Tenant must dispose of crates, boxes, etc., which will
not fit into office waste paper baskets or for which disposal is not provided
under the agreed cleaning specifications, it will be the responsibility of
Tenant to dispose of same. In no event shall Tenant set such items in the
hallways or other areas of the Building or garage facility.
5. Landlord reserves the right to prescribe reasonable rules as
to the date, time, method and conditions upon which any personal property,
equipment, trade fixtures, merchandise and other similar items shall be
delivered to or removed from the Building. No heavy or bulky object shall be
delivered to or removed from the Building, except by experienced movers or
riggers. 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
Building shall not be covered or obstructed by any Tenant.
D-1
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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 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. 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 this Leased Premises to which said wires lead,
(y) the purpose for which said wires are used, and (z) the name of the company
operating same. 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.
9. Tenant, its agents, servants, or employees shall not:
a. go upon the roof of the Building without Landlord's
prior consent;
b. except as approved by Landlord in writing, use any
additional method of heating or air conditioning its Premises;
c. sweep or throw any dirt or other substance from its
Premises into any of the halls, corridors, elevators, or stairways of the
Building;
d. except as agreed by Landlord in writing, install any
radio or television antenna or any other device or item on the roof, exterior
walls, windows, or window ▇▇▇▇▇ of the Building;
e. place objects against glass partitions, doors, or
windows which would be unsightly from the interior or exterior of the Building;
or
f. except to the extent permitted under the Lease, use
any portion of its Premises: (i) for the storage of merchandise for sale to the
general public (other than sale of Tenant's software products), (ii) for
lodging or sleeping, or (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). 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 its Premises, or which may emit electrical waves
which will impair radio or television broadcast or reception from or into the
Building.
10. Tenant shall not store or use in its Premises:
a. any ether, naphtha, phosphorous, benzol, gasoline,
benzine, petroleum, crude or refined earth or coal oils, kerosene or camphene;
D-2
42
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.
11. 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.
12. 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 its Premises, the Building or the Initial
Improvements.
13. 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.
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EXHIBIT E
ARBITRATION PROCEDURE
1. Disputes To Be Resolved By Binding Arbitration. Anything in
the Lease to the contrary notwithstanding, the submission to arbitration in
accordance with the terms of this exhibit is the sole and exclusive method,
means, and procedure to resolve any claims, disputes, or disagreements arising
under this Lease with respect to the following matters: (i) the reasonableness
of any action taken or judgment that either party makes in any instance where
that party has expressly agreed in this Lease to be reasonable in taking that
action or making that judgment; (ii) the amount of any abatement of Base Rent
or Operating Expenses where Tenant is entitled to such an abatement under the
provisions of this Lease; (iii) whether an item of Operating Expenses is
commercially reasonable where expressly required to be reasonable by the terms
of this Lease; (iv) whether a matter conforms with the standards of first class
office buildings in the Denver Technological Center where the Lease requires
such conformance; and (v) the amount of Fair Market Rent for the second
extension term under Paragraph 38 of the Lease. The provisions of this Exhibit
shall not apply with respect to any claim, dispute or disagreement except for
those expressly identified above.
2. Selection of Arbitrator. Any dispute to be arbitrated
pursuant to the provisions of this Exhibit shall be determined by binding
arbitration before a panel of three arbitrators, and except as provided under
Paragraph 38 of the Lease with respect to disputes as to Fair Market Rent,
under the commercial arbitration rules then in effect (the "Arbitration Rules")
of the American Arbitration Association ("AAA"). Such arbitration shall be
initiated by the parties, or either of them, within ten (10) days after either
party sends written notice (the "Arbitration Notice") of a demand to arbitrate
by registered or certified mail to the other party and to the Denver regional
office of the AAA. The Arbitration Notice shall contain a description of the
subject matter of the arbitration, the dispute with respect thereto, the amount
involved, if any, and the remedy or determination sought. Each party shall
designate an arbitrator from the AAA's list of available arbitrators within ten
(10) days after the initiation of the arbitration and within 3 business days
thereafter the two designated arbitrators shall select a third arbitrator. If
either party fails to select an arbitrator, or if the two arbitrators fail to
select the third arbitrator, the panel of three arbitrators shall be selected
in accordance with the Arbitration Rules. Each arbitrator selected hereunder
shall have substantial experience in commercial real estate matters generally,
including specific experience related to commercial leases. The panel of
arbitrators selected hereunder is sometimes referred to herein as the
"Arbitrator".
3. Pre-Decision Arbitration Procedures. The Arbitrator shall
schedule a pre-hearing conference to resolve procedural matters, arrange for
the exchange of information, obtain stipulations, and narrow the issues. The
parties will submit proposed discovery schedules to the Arbitrator at the
pre-hearing conference. The scope and duration of discovery will be within the
sole discretion of the Arbitrator. The Arbitrator shall have the discretion to
order a pre-hearing exchange of information by the parties, including, without
limitation, production of requested documents, exchange of summaries of
testimony of proposed witnesses, and examination by deposition of parties and
third-party witnesses. This discretion shall be exercised so as to limit the
scope of discovery to the amount of discovery which the Arbitrator determines
to be reasonable under the circumstances.
4. Arbitration Hearing. The arbitration shall be conducted in
Denver, Colorado. Any party may be represented by counsel or other authorized
representative. The parties may offer such evidence as is relevant and
material to the dispute. The Arbitrator shall be the judge of relevance and
materiality.
5. Governing Law. In rendering a decision, the Arbitrator shall
determine the rights and obligations of the parties according to the laws of
Colorado and the terms and provisions of this Lease.
6. Arbitration Award. The Arbitrator shall issue the award as
soon as reasonably possible following the conclusion of the arbitration
hearing, but in no event later than thirty (30) days after the conclusion of
the arbitration hearing. The Arbitrator's award shall be based on the evidence
introduced at the hearing, including all logical and reasonable inferences
therefrom. The Arbitrator may make any determination, and/or grant any remedy
or relief that is just and equitable; provided, however, in no event may the
Arbitrator award punitive damages. The award must be based
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on, and accompanied by, a written statement of decision explaining the factual
and legal basis for the award as to each of the principal controverted issues.
The award shall be conclusive and binding, and it may thereafter be confirmed
as a judgment by any Colorado court of applicable jurisdiction, subject to
challenge only on one or more of the following grounds: (i) the award was
procured by corruption, fraud or other undue means; (ii) there was corruption
in any of the arbitrators; (iii) the rights of the appealing party were
substantially prejudiced by misconduct of a neutral arbitrator; (iv) the
arbitrators exceeded their powers and the award cannot be corrected without
affecting the merits of the decision upon the controversy submitted; (v) the
rights of the appealing party were substantially prejudiced by the refusal of
the arbitrators to postpone any hearing upon sufficient cause being shown
therefor or by the refusal of the arbitrators to hear evidence material to the
controversy or by other conduct of any arbitrator contrary to the Arbitration
Rules; (vi) any other grounds which permit appeal under the Arbitration Rules;
or (vii) based upon the Arbitrator's incorrect application of Colorado
statutory or common law. The validity and enforceability of the Arbitrator's
decision is to be determined exclusively by the Colorado courts pursuant to the
provisions of this Lease.
7. Attorneys' Fees and Costs. The Arbitrator may award costs,
including, without limitation, attorneys' fees, and expert and witness costs,
to the prevailing party, if any, as determined by the Arbitrator in the
Arbitrator's discretion. The Arbitrator's fees and costs shall be paid by the
non-prevailing party as determined by the Arbitrator in his discretion. A
party shall be determined by the Arbitrator to be the prevailing party if its
proposal for the resolution of dispute is the closer to that adopted by the
Arbitrator.
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