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Exhibit 10.26
OFFICE LEASE
BETWEEN
MONY/BDP OFFICE I, L.L.C.,
A COLORADO LIMITED LIABILITY COMPANY
("LANDLORD")
AND
INTEGRATED INFORMATION SYSTEMS, INC.
A DELAWARE CORPORATION
("TENANT")
DATE OF LEASE 5/26/00
BUILDING: EXECUTIVE CENTER ONE
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TABLE OF CONTENTS
1. DEFINITIONS ......................................................... 1
2. LEASE GRANT ......................................................... 4
3. ADJUSTMENT OF COMMENCEMENT DATE/POSSESSION .......................... 4
4. USE ................................................................. 6
5. BASE RENTAL ......................................................... 6
6. SECURITY DEPOSIT .................................................... 7
7. SERVICES TO BE FURNISHED BY LANDLORD ................................ 7
8. LEASEHOLD IMPROVEMENTS/TENANT'S PROPERTY ............................ 9
9. SIGNAGE ............................................................. 10
10. REPAIRS AND ALTERATIONS BY TENANT .................................. 10
11. USE OF ELECTRICAL SERVICES BY TENANT ............................... 11
12. ENTRY BY LANDLORD .................................................. 11
13. ASSIGNMENT AND SUBLETTING .......................................... 12
14. MECHANIC'S LIENS ................................................... 13
15. INSURANCE .......................................................... 13
16. INDEMNITY .......................................................... 15
17. DAMAGES FROM CERTAIN CAUSES ........................................ 16
18. CASUALTY DAMAGE .................................................... 16
19. CONDEMNATION ....................................................... 17
20. HAZARDOUS SUBSTANCES ............................................... 17
21. AMERICANS WITH DISABILITIES ACT .................................... 19
22. EVENTS OF DEFAULT .................................................. 19
23. REMEDIES ........................................................... 20
24. NO WAIVER .......................................................... 24
25. PEACEFUL ENJOYMENT ................................................. 24
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26. SUBSTITUTION ....................................................... 24
27. HOLDING OVER ....................................................... 24
28. SUBORDINATION TO MORTGAGE/ESTOPPEL CERTIFICATE ..................... 24
29. NOTICE ............................................................. 25
30. LANDLORD'S LIEN .................................................... 25
31. SURRENDER OF PREMISES .............................................. 26
32. RIGHTS RESERVED TO LANDLORD ........................................ 26
33. MISCELLANEOUS ...................................................... 27
34. ENTIRE AGREEMENT ................................................... 28
35. LIMITATION OF LIABILITY ............................................ 28
EXHIBIT A-OUTLINE AND LOCATION OF PREMISES
EXHIBIT B-LEGAL DESCRIPTION
EXHIBIT C-RULES AND REGULATIONS
EXHIBIT D-PAYMENT OF BASIC COSTS
EXHIBIT E-WORK LETTER
EXHIBIT E-1-BASE BUILDING SHELL AND CORE CONDITION
EXHIBIT E-2-TENANT IMPROVEMENT ALLOWANCE
EXHIBIT E-3-LANDLORD'S BUILDING STANDARD MATERIALS
EXHIBIT F-ADDITIONAL PROVISIONS
EXHIBIT G-RENEWAL OPTION
EXHIBIT H-COMMENCEMENT LETTER
EXHIBIT I-PARKING AGREEMENT
EXHIBIT J-LETTER OF CREDIT
EXHIBIT K-FORM OF DEMAND LETTER OF CREDIT
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OFFICE LEASE AGREEMENT
This Office Lease Agreement (THE "LEASE"), made and entered into on this the 26
day of May 2000, between MONY/BDP OFFICE I, A COLORADO LIMITED LIABILITY COMPANY
("LANDLORD") AND INTEGRATED INFORMATION SYSTEMS, INC., A DELAWARE CORPORATION,
("TENANT").
W I T N E S S E T H:
1. DEFINITIONS. The following are definitions of some of the defined terms used
in this Lease. The definition of other defined terms are found throughout this
Lease.
A. "BUILDING" shall mean the office building at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ of Colorado, currently known as
Executive Center One, described in EXHIBIT B.
B. "BASE RENT": Base Rent will be paid according to the following
schedule, subject to the provisions of Section 5. hereof. For the
purposes of this Section 1.B., "LEASE YEAR" shall mean the twelve (12)
month period commencing on the Commencement Date, and on each
anniversary, of the Commencement Date.
MONTHLY INSTALLMENTS
PERIOD OF BASE RENT ANNUAL BASE RENT
--------------------------------------------------------------------------------
FIRST LEASE YEAR
MONTH 1 $ -0-
MONTHS 2-12 $ 19,027.42 $ 209,301.62
SECOND LEASE YEAR
MONTHS 13-24 $ 19,602.88 $ 235,234.56
THIRD LEASE YEAR
MONTHS 25-36 $ 20,187.63 $ 242,251.56
FOURTH LEASE YEAR
MONTHS 37-48 $ 20,790.93 $ 249,491.16
FIFTH LEASE YEAR
MONTHS 49-60 $ 21,412.81 $ 256,953.72
SIXTH LEASE YEAR
MONTHS 61 $ 21,412.81 $ 21,412.81
TOTAL BASE RENT $1,214,645.43
The Base Rent due for the first month during the Lease Term
(hereinafter defined) shall be paid by Tenant to Landlord
contemporaneously with Tenant's execution hereof.
C. "ADDITIONAL RENT": shall mean Tenant's Pro Rata Share of Basic Costs
(hereinafter defined) and any other sums (exclusive of Base Rent) that
are required to be paid to Landlord by Tenant hereunder, which sums are
deemed to be Additional Rent under this Lease. Additional Rent and Base
Rent are sometimes collectively referred to herein as "Rent."
D. "BASIC COSTS" shall mean all direct and indirect costs and expenses
incurred in connection with the Building as more fully defined in
EXHIBIT D attached hereto.
E. "SECURITY DEPOSIT" shall mean the sum of $20,187.63 The Security
Deposit shall be paid by Tenant to Landlord contemporaneously with
Tenant's execution hereof
F. "COMMENCEMENT DATE", "LEASE TERM" and "TERMINATION DATE" shall have
the meanings set forth in subsection 1.F.(1):
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(1) The "LEASE TERM" shall mean a period of sixty-one
(61) months commencing on the later to occur of (a)
AUGUST 1, 2000 (the "TARGET COMMENCEMENT DATE") and
(b) the date upon which Landlord's Work in the
Premises has been substantially completed as such
date is determined pursuant to Section 3.A. hereof
(the later to occur of such dates being defined as
the "COMMENCEMENT DATE"). The "TERMINATION DATE"
shall, unless sooner terminated as provided herein,
mean the last day of the Lease Term. Notwithstanding
the foregoing, if the Termination Date, as determined
herein, does not occur on the last day of a calendar
month, the Lease Term shall be extended by the number
of days necessary to cause the Termination Date to
occur on the last day of the last calendar month of
the Lease Term. Tenant shall pay Base Rent and
Additional Rent for such additional days at the same
rate payable for the portion of the last calendar
month immediately preceding such extension. The
Commencement Date, Lease Term (including any
extension by Landlord pursuant to this subsection
I.F.(1) and Termination Date shall be set forth in a
Commencement Letter prepared by Landlord and executed
by Tenant in accordance with the provisions of
Section 3.A. hereof.
G. "PREMISES" shall mean the office space located within the Building
and outlined on EXHIBIT A to this Lease.
H. "APPROXIMATE RENTABLE AREA IN THE PREMISES" shall mean the area
contained within the demising walls of the Premises and any other area
designated for the exclusive use of Tenant plus an allocation of the
Tenant's pro rata share of the square footage of the "Common Areas" and
the "Service Areas" (as defined below). For purposes of the Lease it is
agreed and stipulated by both Landlord and Tenant that the Approximate
Rentable Area in the Premises is 11,138 square feet.
I. The "APPROXIMATE RENTABLE AREA IN THE BUILDING" is 85,934 square
feet. The Approximate Rentable Area in the Premises and the Approximate
Rentable Area in the Building as set forth herein may be revised at
Landlord's election if Landlord's architect determines such estimate to
be inaccurate in any material degree after examination of the final
drawings of the Premises and the Building.
J. "TENANT'S PRO RATA SHARE" shall mean Twelve Point Nine Six One One
percent (12.9611%) which is the quotient (expressed as a percentage),
derived by dividing the Approximate Rentable Area in the Premises by
the Approximate Rentable Area in the Building.
K. "PERMITTED USE" shall mean general office use and no other use or
purpose.
N. "BROKER" shall mean Transwestern Commercial Services and The
Staubach Company.
O. "BUILDING MANAGER" shall mean Transwestern Commercial Services or
such other company as Landlord shall designate from time to time.
P. "BUILDING STANDARD", shall mean the type, brand, quality and/or
quantity of materials Landlord designates from time-to-time to be the
minimum quality and/or quantity to be used in the Building or the
exclusive type, grade, quality and/or quantity of material to be used
in the Building.
Q. "BUSINESS DAY(S)" shall mean Mondays through Fridays exclusive of
the normal business holidays of New Year's Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day and Christmas Day
("HOLIDAYS"). Landlord, from time to time during the Lease Term, shall
have the right to designate additional Holidays, provided such
additional Holidays are commonly recognized by other office buildings
in the area where the Building is located.
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R. "COMMON AREAS" shall mean those areas located within the Building or
on the Property used for corridors, elevator foyers, mail rooms,
restrooms, mechanical rooms, elevator mechanical rooms, property
management office, janitorial closets, electrical and telephone
closets, vending areas, and lobby areas (whether at ground level or
otherwise), entrances, exits, sidewalks, skywalks, tunnels, driveways,
parking areas and parking garages and landscaped areas and other
similar facilities provided for the common use or benefit of tenants
generally and/or the public.
S. "DEFAULT RATE" shall mean the lower of (i) the Prime Rate plus FOUR
percent (4%) or (ii) the Maximum Rate.
T. "MAXIMUM RATE" shall mean the highest rate of interest from
time-to-time permitted under applicable federal and state law.
U. "NORMAL BUSINESS HOURS" for the Building shall mean 8:00 a.m. to
6:00 p.m. Mondays through Fridays, and 8:00 a.m. to 1:00 p.m. on
Saturdays, exclusive of Holidays.
V. "PRIME RATE" shall mean the per annum interest rate announced by and
quoted in the Wall Street Journal from time-to-time as the prime or
base rate.
W. "PROPERTY" shall mean the Building and the parcel(s) of land on
which it is located, other improvements located on such land, adjacent
parcels of land that Landlord operates jointly with the Building, and
other buildings and improvements located on such adjacent parcels of
land.
X. "SERVICE AREAS" shall mean those areas within the Building used for
stairs, elevator shafts, flues, vents, stacks, pipe shafts and other
vertical penetrations (but shall not include any such areas for the
exclusive use of a particular tenant).
Y. "NOTICE ADDRESSES" shall mean the following addresses for Tenant and
Landlord, respectively:
Tenant:
Integrated Information Systems, Inc.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
with a copy to:
Integrated Information Systems, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Corporate Counsel
Landlord:
Transwestern Commercial Services
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Property Manager
with a copy to:
Transwestern Investment Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Owner's Representative
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Payments of Rent only shall be made payable to the order of:
MONY/BDP Office I, L.L.C.
at the following address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
or such other name and address as Landlord shall, from time to time,
designate.
2. LEASE GRANT. Subject to and upon the terms herein set forth, Landlord leases
to Tenant and Tenant leases from Landlord the Premises together with the right,
in common with others, to use the Common Areas.
3. ADJUSTMENT OF COMMENCEMENT DATE/POSSESSION.
A. If the Lease Term, Commencement Date and Termination Date are to be
determined in accordance with Section 1.F.(1) above, the Lease Term
shall not commence until the later to occur of the Target Commencement
Date and the date that Landlord has substantially completed the work to
be performed by Landlord as set forth in the Work Letter Agreement
attached hereto as EXHIBIT E ("LANDLORD'S WORK"); provided, however,
that if Landlord shall be delayed in substantially completing the
Landlord Work as a result of the occurrence of any of the following (a
"DELAY"):
(1) Tenant's failure to furnish information in accordance
with the Work Letter Agreement or to respond to any
request by Landlord for any approval of information
within any time period prescribed, or if no time
period is prescribed, then within THREE (3) Business
Days of such request; or
(2) Tenant's insistence on materials, finishes or
installations that have long lead times after having
first been informed by Landlord, IN WRITING, that
such materials, finishes or installations will cause
a Delay; or
(3) ANY MATERIAL changes in any plans and specifications
requested by Tenant; or
(4) The performance or nonperformance by a person or
entity employed by on or behalf of Tenant in the
completion of any work in the Premises (all such work
and such persons or entities being subject to prior
approval of Landlord); or
(5) Any request by Tenant that Landlord delay the
completion of any of the Landlord's Work; or
(6) Any breach or default by Tenant in the performance of
Tenant's obligations under this Lease; or
(7) Any delay resulting from Tenant's having taken
possession of the Premises for any reason prior to
substantial completion of the Landlord's Work; or
(8) Any other delay chargeable to Tenant, its agents,
employees or independent contractors;
then, for purposes of determining the Commencement Date, the date of
substantial completion shall be deemed to be the day that said
Landlord's Work would have been substantially completed absent any such
Delay(s). The Landlord's Work shall be deemed to be substantially
completed on the date that Landlord's Work has been performed (or would
have been performed absent any Delay(s), other
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than any details of construction, mechanical adjustment or any other
matter, the noncompletion of which does not materially interfere with
Tenant's use of the Premises AND ALL PERMITS OR CERTIFICATES NECESSARY
FOR TENANT'S OCCUPANCY OF THE PREMISES HAVE BEEN RECEIVED. The
adjustment of the Commencement Date and, accordingly, the postponement
of Tenant's obligation to pay Base Rent and other sums due hereunder
shall be Tenant's sole remedy and shall constitute full settlement of
all claims that Tenant might otherwise have against Landlord by reason
of the Premises not being ready for occupancy by Tenant on the Target
Commencement Date. Promptly after the determination of the Commencement
Date, Landlord and Tenant shall enter into a letter agreement (the
"COMMENCEMENT LETTER") on the form attached hereto as EXHIBIT H setting
forth the Commencement Date, the Termination Date and any other dates
that are affected by the adjustment of the Commencement Date. If this
Lease requires Landlord to perform Landlord's Work in the Premises, the
Commencement Letter shall identify any minor incomplete items of the
Landlord's Work as reasonably determined by Landlord's architect (the
"PUNCHLIST ITEMS"), which Punchlist Items Landlord shall promptly
remedy. Tenant, within five (5) days after receipt thereof from
Landlord, shall execute the Commencement Letter and return the same to
Landlord. Notwithstanding anything herein to the contrary, Landlord may
elect, by written notice to Tenant, not to adjust the Commencement Date
as provided above if such adjustment would cause Landlord to be in
violation of the existing rights granted to any other tenant of the
Building. If Landlord elects not to adjust the Commencement Date, the
Commencement Date shall be the Target Commencement Date, provided that
Base Rent and Additional Rent shall not commence until the date that
Landlord's Work has been substantially completed (or would have been
substantially completed absent any Delays).
B. By taking possession of the Premises, Tenant is deemed to have
accepted the Premises and agreed that the Premises is in good order and
satisfactory condition, with no representation or warranty by Landlord
as to the condition of the Premises or the Building or suitability
thereof for Tenant's use.
C. Notwithstanding anything to the contrary contained in this Lease,
Landlord shall not be obligated to tender possession of any portion of
the Premises or other space leased by Tenant from time to time
hereunder that, on the date possession is to be delivered, is occupied
by a tenant or other occupant or that is subject to the rights of any
other tenant or occupant, nor shall Landlord have any other obligations
to Tenant under this Lease with respect to such space until the date
Landlord: (1) recaptures such space from such existing tenant or
occupant; and (2) regains the legal right to possession thereof. This
Lease shall not be affected by any such failure to deliver possession
and Tenant shall have no claim for damages against Landlord as a result
thereof, all of which are hereby waived and released by Tenant. If
Landlord is prevented from delivering possession of the Premises to
Tenant due to the holding over in possession of the Premises by a
tenant or other occupant thereof, Landlord shall use reasonable efforts
to regain possession of the Premises in order to deliver the same to
Tenant. If the Lease Term is to be determined pursuant to Section
1.F.(l) hereof, the Commencement Date shall be postponed until the date
Landlord delivers possession of the Premises to Tenant, in which event
the Termination Date shall, at the option of Landlord, correspondingly
be postponed on a per diem basis. If the Lease Term is to be determined
pursuant to Section 1.F.(1), the Commencement Date and Termination Date
shall be determined as provided in Section 3.A. above.
D. If Tenant takes possession of the Premises prior to the Commencement
Date, such possession shall be subject to all the terms and conditions
of the Lease and Tenant shall pay Base Rent and Additional Rent to
Landlord for each day of occupancy prior to the Commencement Date.
Notwithstanding the foregoing, if Tenant, with Landlord's prior
approval, takes possession of the Premises prior to the Commencement
Date for the sole purpose of performing any Landlord-approved
improvements therein or installing furniture, equipment, CABLING,
TELECOMMUNICATIONS EQUIPMENT or other personal property of Tenant, such
possession shall be subject to all of the terms and conditions of the
Lease, except that Tenant shall not be required to pay Rent with
respect to the period of time prior to the Commencement Date during
which Tenant performs such work. Tenant shall, however, be liable for
the cost of any services (e.g. electricity, HVAC, freight elevators)
that are provided to Tenant or the Premises during the period of
Tenant's possession prior to the Commencement Date. Nothing herein
shall be construed as granting Tenant the right to take
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possession of the Premises prior to the Commencement Date, whether for
construction, fixturing or any other purpose, without the prior consent
of Landlord.
4. USE. The Premises shall be used for the Permitted Use and for no other
purpose. Tenant agrees not to use or permit the use of the Premises for any
purpose which is illegal, dangerous to life, limb or property or which, in
Landlord's sole judgement, creates a nuisance or which would increase the cost
of insurance coverage with respect to the Building. Tenant will conduct its
business and control its agents, servants, employees, customers, licensees, and
invitees in such a manner as not to interfere with, annoy or disturb other
tenants or Landlord in the management of the Building and the Property. Tenant
will maintain the Premises in a clean and healthful condition, and comply with
all laws, ordinances, orders, rules and regulations of any governmental entity
with reference to the use, condition, configuration or occupancy of the
Premises. Tenant, within ten (10) days after the receipt thereof, shall provide
Landlord with copies of any notices it receives with respect to a violation or
alleged violation of any such laws, ordinances, orders, rules and regulations.
Tenant, at its expense, will comply with the rules and regulations of the
Building attached hereto as EXHIBIT C and such other rules and regulations
adopted and altered by Landlord from time-to-time and will cause all of its
agents, employees, invitees and visitors to do so. All such changes to rules and
regulations will be reasonable and shall be sent by Landlord to Tenant in
writing. ANY FURTHER REVISIONS OF THE RULES AND REGULATIONS SHALL APPLY
UNIFORMLY TO ALL TENANTS IN THE BUILDING AND SHALL BE UNIFORMLY ENFORCED.
5. BASE RENT.
A. Tenant covenants and agrees to pay to Landlord during the Lease
Term, without any setoff or deduction except as otherwise expressly
provided herein, the full amount of all Base Rent and Additional Rent
due hereunder and the full amount of all such other sums of money as
shall become due under this Lease (including, without limitation, any
charges for replacement of electric lamps and ballasts and any other
services, goods or materials furnished by Landlord at Tenant's
request), all of which hereinafter may be collectively called "RENT."
In addition Tenant shall pay and be liable for, as Additional Rent, all
rent, sales and use taxes or other similar taxes, if any, levied or
imposed by any city, state, county or other governmental body having
authority, such payments to be in addition to all other payments
required to be paid to Landlord by Tenant under the terms and
conditions of this Lease. Any such payments shall be paid concurrently
with the payments of the Rent on which the tax is based. The Base Rent
and Additional Rent for each calendar year or portion thereof during
the Lease Term, shall be due and payable in advance in monthly
installments of the first day of each calendar month during the Lease
Term and any extensions or renewals hereof, and Tenant hereby agrees to
pay such Base Rent and Additional Rent to Landlord without demand. If
the Lease Term commences on a day other than the first day of a month
or terminates on a day other than the last day of a month, then the
installments of Base Rent and Additional Rent for such month or months
shall be prorated, based on the number of days in such month. No
payment by Tenant or receipt or acceptance by Landlord of a lesser
amount than the correct installment of Rent due under this Lease shall
be deemed to be other than a payment on account of the earliest Rent
due hereunder, nor shall any endorsement or statement on any check or
any letter accompanying any check or payment be deemed an accord and
satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance or pursue any
other available remedy. The acceptance by Landlord of an installment of
Rent on a date after the due date of such payment shall not be
construed to be a waiver of Landlord's right to declare a default for
any other late payment. All amounts received by Landlord from Tenant
hereunder shall be applied first to the earliest accrued and unpaid
Rent then outstanding. Tenant's covenant to pay Rent shall be
independent of every other covenant set forth in this Lease.
B. To the extent allowed by law, all installments of Rent not paid when
due shall bear interest at the Default Rate from the date due until
paid. In addition, if Tenant fails to pay any installment of Base Rent
and Additional Rent or any other item of Rent when due and payable
hereunder, a "LATE CHARGE" equal to five percent (5%) of such unpaid
amount will be due and payable immediately by Tenant to Landlord.
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C. The Additional Rent payable hereunder shall be adjusted from
time-to-time in accordance with the provisions of EXHIBIT D attached
hereto and incorporated herein for all purposes.
D. NOTWITHSTANDING THE PROVISION SET FORTH IN SECTION 1.(B), TENANT
SHALL BE ENTITLED TO AND EXCUSED RENT PERIOD COMMENCING UPON OCCUPANCY
AND TERMINATING THIRTY (30) DAYS LATER, BUT IN NO EVENT SHALL THE
EXCUSED RENT PERIOD CONTINUE BEYOND AUGUST 31, 2000.
6. SECURITY DEPOSIT. The Security Deposit shall be held by Landlord without
liability for interest and as security for the performance by Tenant of Tenant's
covenants and obligations under this Lease including but not limited to those
set forth in Section 10 hereof, it being expressly understood that the Security
Deposit shall not be considered an advance payment of Rent or a measure of
Tenant's liability for damages in case of default by Tenant. Landlord shall have
no fiduciary responsibilities or trust obligations whatsoever with regard to the
Security Deposit and shall not assume the duties of a trustee for the Security
Deposit. Landlord may, from time-to-time, without prejudice to any other remedy
and without waiving such default, use the Security Deposit to the extent
necessary to cure or attempt to cure, in whole or in part, any default of Tenant
hereunder. Following any such application of the Security Deposit, Tenant shall
pay to Landlord on demand the amount so applied in order to restore the Security
Deposit to its original amount. If Tenant is not in default at the termination
of this Lease, the balance of the Security Deposit remaining after any such
application shall be returned by Landlord to Tenant within sixty (60) days
thereafter. If Landlord transfers its interest in the Premises during the term
of this Lease, Landlord may assign the Security Deposit to the transferee and
thereafter shall have no further liability for the return of such Security
Deposit. Tenant agrees to look solely to such transferee or assignee or
successor thereof for the return of the Security Deposit. Landlord and its
successors and assigns shall not be bound by any actual or attempted assignment
or encumbrance of the Security Deposit by Tenant. Landlord shall not be required
to keep the Security Deposit separate from its other accounts.
7. SERVICES TO BE FURNISHED BY LANDLORD.
A. Landlord agrees to furnish Tenant the following services:
(1) Water for use in the lavatories on the floor(s) on
which the Premises is located. If Tenant desires
water in the Premises for any approved reason,
including a private lavatory or kitchen, cold water
shall be supplied, at Tenant's sole cost and expense,
from the Building water main through a line and
fixtures installed at Tenant's sole cost and expense
with the prior reasonable consent of Landlord. If
Tenant desires hot water in the Premises, Tenant, at
its sole cost and expense and subject to the prior
reasonable consent of Landlord, may install a hot
water heater in the Premises. Tenant shall be solely
responsible for the maintenance and repair of any
such water heater.
(2) Central heat and air conditioning in season during
Normal Business Hours, at such temperatures and in
such amounts as are considered by Landlord, in its
reasonable judgment, to be standard for buildings of
similar class, size, age and location, or as required
by governmental authority. In the event that Tenant
requires central heat, ventilation or air
conditioning service at times other than Normal
Business Hours, such additional service shall be
furnished only upon the written request of Tenant
delivered to Landlord prior to 3:00 p.m. at least one
Business Day in advance of the date for which such
usage is requested. Tenant shall bear the entire cost
of additional service BASED UPON LANDLORD'S ACTUAL
EXPENSES (INCLUDING DEPRECIATION OF EQUIPMENT),
WITHOUT MARKUP CURRENTLY SET AT $65.00 PER ADDITIONAL
HOUR, WITH A FOUR (4) HOUR MINIMUM. SUCH HOURLY
CHARGE SHALL BE REASONABLY RESET OR determined by
Landlord from time-to-time, as Additional Rent upon
presentation of a statement therefor by Landlord. All
additional heating, ventilating and air conditioning
required (if any) to accommodate Tenant's design
shall be installed at the Tenant's expense subject to
Landlord's prior written approval. The cost of
operation and maintenance of the
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equipment shall be the responsibility of the Tenant
and paid to Landlord as Additional Rent.
(3) Maintenance and repair of all Common Areas in the
manner and to the extent reasonably deemed by
Landlord to be standard for buildings of similar
class, age and location.
(4) Janitorial and cleaning service in and about the
Premises on Business Days; provided, however, if
Tenant's floor covering or other improvements require
special treatment, Tenant shall pay the additional
cleaning cost attributable thereto as Additional Rent
upon presentation of a statement therefor by
Landlord. Tenant shall not provide or use any other
janitorial or cleaning services without Landlord's
consent, and then only subject to the supervision of
Landlord and at Tenant's sole cost and responsibility
and by a janitor, cleaning contractor or employees at
all times satisfactory to Landlord.
(5) Electricity to the Premises for general office use,
in accordance with and subject to the terms and
conditions of Section 11. of this Lease.
(6) Fluorescent bulb replacement in the Premises
necessary to maintain building standard the lighting
as established by Landlord and fluorescent and
incandescent bulb and ballast replacement in the
Common Areas and Service Areas.
(7) Passenger elevator service in common with Landlord
and other persons during Normal Business Hours and
freight elevator service in common with the Landlord
and other persons during Normal Business Hours. Such
normal elevator service, passenger or freight, if
furnished at other times, shall be optional with
Landlord and shall never be deemed a continuing
obligation. Landlord, however, shall provide limited
passenger elevator service daily at all times when
normal passenger elevator service is not provided.
(8) Access control to the Building during other than
Normal Business Hours shall be provided in such form
as Landlord deems appropriate. Tenant shall cooperate
fully in Landlord's efforts to maintain access
control to the Building and shall follow all
regulations promulgated by Landlord with respect
thereto. Notwithstanding anything herein to the
contrary Tenant expressly acknowledges and agrees
that Landlord is not warranting the efficacy of any
access personnel, service, procedures or equipment
and that Tenant is not relying and shall not
hereafter rely on any such personnel service,
procedures or equipment. Landlord shall not be
responsible or liable in any manner for failure of
any access personnel, services, procedures or
equipment to prevent, control, or apprehend anyone
suspected of causing personal injury or damage in, on
or around the Project.
B. If Tenant requests any other utilities or building services in
addition to those identified above, or any of the above utilities or
building services in frequency, scope, quality or quantities
substantially greater than the standards set by Landlord for the
Building, then Landlord shall use reasonable efforts to attempt to
furnish Tenant with such additional utilities or building services.
Landlord may impose a reasonable charge for such additional utilities
or building services, which shall be paid monthly by Tenant as
Additional Rent on the same day that the monthly installment of Base
Rent is due. LANDLORD SHALL PROVIDE TENANT WITH SHARED ACCESS TO A
PORTION OF THE INTERDUCT CONDUIT WHICH CURRENTLY PROVIDES ACCESS FROM
THE FIRST FLOOR NORTH TELEPHONE ROOM TO THE STREET TELECOMMUNICATIONS
PEDISTAL, ADJACENT TO NOME STREET, EAST OF THE BUILDING. SUCH ACCESS IS
INTENDED TO PROVIDE TENANT WITH FUTURE DATA AND TELECOMMUNICATIONS
CONNECTIVITY TO OTHER LANDLORD BUILDINGS IN THE LINCOLN EXECUTIVE
CENTER. SUCH ACCESS SHALL BE SUBJECT TO ANY FUTURE AVAILABILITY IN THE
EXISTING CONDUIT AND THE USE OF AND ACCESS TO SUCH CONDUIT SHALL BE IN
ACCORDANCE WITH THIS SECTION 7.B.
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C. Except as otherwise expressly provided herein, the failure by
Landlord to any extent to furnish, or the interruption or termination
of these defined services in whole or in part, resulting from adherence
to laws, regulations and administrative orders, wear, use, repairs,
improvements, alterations or any causes beyond the reasonable control
of Landlord shall not render Landlord liable in any respect nor be
construed as a constructive eviction of Tenant, nor give rise to an
abatement of Rent, nor relieve Tenant from the obligation to fulfill
any covenant or agreement hereof. Should any of the equipment or
machinery used in the provision of such services for any cause cease to
function properly, Landlord shall use reasonable diligence to repair
such equipment or machinery.
D. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS ARTICLE
7, IF: (i) LANDLORD CEASES TO FURNISH ANY SERVICES IN THE BUILDING FOR
A PERIOD IN EXCESS OF FIVE (5) CONSECUTIVE DAYS AFTER TENANT NOTIFIES
LANDLORD OF SUCH CESSATION (THE "INTERUPTION NOTICE"); (ii) SUCH
CESSATION DOES NOT ARISE AS A RESULT OF AN ACT OR OMISSION OF TENANT;
(iii) SUCH CESSATION IS NOT CAUSED BY FIRE OR OTHER CASUALTY (IN WHICH
CASE ARTICLE 19 SHALL CONTROL); (iv) THE RESTORATION OF SUCH SERVICES
IS REASONABLY WITHIN THE CONTROL OF LANDLORD; AND (v) AS A RESULT OF
SUCH CESSATION, THE PREMISES OR A MATERIAL PORTION THEREOF, IS RENDERED
UNTENANTABLE (MEANING THAT TENANT IS UNABLE TO USE THE PREMISES IN THE
NORMAL COURSE OF ITS BUSINESS) AND TENANT IN FACT CEASES TO USE THE
PREMISES, OR MATERIAL PORTION THEREOF, THEN TENANT, AS ITS SOLE REMEDY,
SHALL BE ENTITLED TO RECEIVE AN ABATEMENT OF BASE RENT PAYABLE
HEREUNDER DURING THE PERIOD BEGINNING ON THE SIXTH (6TH) CONSECUTIVE
DAY OF SUCH CESSATION AND ENDING ON THE DAY WHEN THE SERVICE IN
QUESTION HAS BEEN RESTORED. IN THE EVENT THE ENTIRE PREMISES HAS BEEN
RENDERED UNTENANTABLE BY THE CESSATION IN SERVICE, THE AMOUNT OF
ABATEMENT THAT TENANT IS ENTITLED TO RECEIVE SHALL BE PRORATED BASED
UPON THE PERCENTAGES OF THE PREMISES SO RENDERED UNTENANTABLE AND NOT
USED BY TENANT.
8. LEASEHOLD IMPROVEMENTS/TENANT'S PROPERTY. All fixtures, equipment,
improvements and appurtenances attached to, or built into, the Premises at the
commencement of or during the Lease Term, whether or not by, or at the expense
of, Tenant ("LEASEHOLD IMPROVEMENTS"), shall be and remain a part of the
Premises; shall be the property of Landlord; and shall not be removed by Tenant
except as expressly provided herein. All unattached and moveable partitions,
trade fixtures, moveable equipment or furniture located in the Premises and
acquired by or for the account of Tenant, without expense to Landlord, which can
be removed without structural damage to the Building or Premises, and all
personalty brought into the Premises by Tenant ("TENANT'S PROPERTY") shall be
owned and insured by Tenant. Landlord may, nonetheless, within one (1) month
after, the expiration or earlier termination of this Lease or Tenant's right to
possession, require Tenant to remove any Leasehold Improvements performed by or
for the benefit of Tenant and all electronic, phone and data cabling as are
designated by Landlord (the "REQUIRED REMOVABLES") at Tenant's sole cost. In the
event that Landlord so elects, Tenant shall remove such Required Removables
within ten (10) days after notice from Landlord, provided that in no event shall
Tenant be required to remove such Required Removables prior to the expiration or
earlier termination of this Lease or Tenant's right to possession. In addition
to Tenant's obligation to remove the Required Removables, Tenant shall repair
any damage caused by such removal and perform such other work as is reasonably
necessary to restore the Premises to a "move in" condition, NORMAL WEAR AND TEAR
EXCEPTED. If tenant fails to remove any specified Required Removables or to
perform any required repairs and restoration within the time period specified
above, Landlord, at Tenant's sole cost and expense, may remove the Required
Removables (and repair any damage occasioned thereby) and dispose thereof or
deliver the Required Removables to any other place of business of Tenant, or
warehouse the same, and Tenant shall pay the cost of such removal, repair,
delivery, or warehousing of the Required Removables within five (5) days after
demand from Landlord.
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9. SIGNAGE. Landlord shall provide and install, at LANDLORD'S cost, all letters
or numerals on the exterior of the Premises; all such letters and numerals shall
be in the standard graphics for the Building and no others shall be used or
permitted on the Premises without Landlord's prior written consent. In addition,
Landlord will list Tenant's name in the Building's directory, if any, located in
the lobby of the Building, AT NO ADDITIONAL EXPENSE TO TENANT.
10. REPAIRS AND ALTERATIONS BY TENANT.
A. Except to the extent such obligations are imposed upon Landlord
hereunder, Tenant shall, at its sole cost and expense, maintain the
Premises in good order, condition and repair throughout the entire
Lease Term, ordinary wear and tear excepted. Tenant agrees to keep the
areas visible from outside the Premises in a neat, clean and attractive
condition at all times. Tenant shall be responsible for all repairs
replacements and alterations in and to the Premises, Building and
Property and the facilities and systems thereof, the need for which
arises out of (1) Tenant's use or occupancy of the Premises, (2) the
installation, removal, use or operation of Tenant's Property (as
defined in Section 8. above), (3) the moving of Tenant's Property into
or out of the Building, or (4) the act, omission, misuse or negligence
of Tenant, its agents, contractors, employees or invitees. All such
repairs, replacements or alterations shall be performed in accordance
with Section 10.B. below and the rules, policies and procedures
reasonably enacted by Landlord from time to time for the performance of
work in the Building. If Tenant fails to maintain the Premises in good
order, condition and repair, Landlord shall give Tenant notice to
perform such acts as are reasonably required to so maintain the
Premises. If Tenant fails to promptly commence such work and diligently
pursue it to its completion, then Landlord may, at its option, make
such repairs, and Tenant shall pay the cost thereof to Landlord on
demand as Additional Rent, together with an administration charge in an
amount equal to FIVE percent (5%) of the cost of such repairs. Landlord
shall, at its expense (except as included in Basic Costs) keep and
maintain in good repair and working order and make all repairs to and
perform necessary maintenance upon: (a) all structural elements of the
Building; and (b) all mechanical, electrical and plumbing systems that
serve the Building in general; and (c) the Building facilities common
to all tenants including but not limited to, the ceilings, walls and
floors in the Common Areas.
B. Tenant shall not make or allow to be made any MATERIAL alterations,
additions or improvements to the Premises, without first obtaining the
written consent of Landlord in each such instance, which consent may be
refused or given on such conditions as Landlord may elect. Prior to
commencing any such work and as a condition to obtaining Landlord's
consent, Tenant must furnish Landlord with plans and specifications
acceptable to Landlord; names and addresses of contractors reasonably
acceptable to Landlord; copies of contracts; necessary permits and
approvals; evidence of contractor's and subcontractor's insurance in
accordance with Section 15. hereof; and a payment bond or other
security, all in form and amount satisfactory to Landlord. Tenant shall
be responsible for insuring that all such persons procure and maintain
insurance coverage against such risks, in such amounts and with such
companies as Landlord may require, including, but not limited to,
Builder's Risk and Worker's Compensation insurance. All such
improvements, alterations or additions shall be constructed in a good
and workmanlike manner using Building Standard materials or other new
materials of equal or greater quantity. Landlord, to the extent
reasonably necessary to avoid any disruption to the tenants and
occupants of the Building, shall have the right to designate the time
when any such alterations, additions and improvements may be performed
and to otherwise designate reasonable rules, regulations and procedures
for the performance of work in the Building. Upon completion, Tenant
shall furnish "as-built" plans, contractor's affidavits and full and
final waivers of lien and receipted bills covering all labor and
materials. All improvements, alterations and additions shall comply
with the insurance requirements, codes, ordinances, laws and
regulations, including without limitation, the Americans with
Disabilities Act. Tenant shall reimburse Landlord upon demand for all
REASONABLE sums, if any, expended by Landlord for third party
examination of the architectural, mechanical, electrical and plumbing
plans for any alterations, additions or improvements. In addition, if
Landlord so requests, Landlord shall be entitled to oversee the
construction of any alterations, additions or improvements that may
affect the structure of the Building or any of the mechanical,
electrical, plumbing or life safety systems of the Building. In the
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event Landlord elects to oversee such work, Landlord shall be entitled
to receive a fee for such oversight in an amount equal to FIVE percent
(5%) of the cost of such alterations, additions or improvements.
Landlord's approval of Tenant's plans and specifications for any work
performed for or on behalf of Tenant shall not be deemed to be
representation by Landlord that such plans and specifications comply
with applicable insurance requirements, building codes, ordinances,
laws or regulations or that the alterations, additions and improvements
constructed in accordance with such plans and specifications will be
adequate for Tenant's use.
C. At least five (5) days prior to the commencement of any work
permitted to be done by persons requested by the Tenant on the
Premises, the Tenant shall notify the Landlord of the proposed work and
the names and addresses of the persons supplying labor and materials
for the proposed work so that the Landlord may avail itself of the
provisions of statutes such as Section 38_22_105(2) of the Colorado
Revised Statutes (1973). During any such work on the Premises, the
Landlord, or its representatives, shall have the right to go upon and
inspect the Premises at all reasonable times, and shall have the right
to post and keep posted thereon notices such as those provided for by
Section 38_22_105(2) C.R.S. (1973) or to take any further action which
the Landlord may deem to be proper for the protection of the Landlord's
interest in the Premises.
11. USE OF ELECTRICAL SERVICES BY TENANT.
A. All electricity used by Tenant in the Premises shall, at Landlord's
option, be paid for by Tenant either: (1) through inclusion in Base
Rent and Basic Costs (except as provided in Section 11.B. below with
respect to excess useage. Landlord shall have the right at any time and
from time-to-time during the Lease Term to contract for electricity
service from such providers of such services as Landlord shall elect
(each being an "ELECTRIC SERVICE PROVIDER"). Tenant shall cooperate
with Landlord, and the applicable Electric Service Provider, at all
times and, as reasonably necessary, shall allow Landlord and such
Electric Service Provider reasonable access to the Building's electric
lines, feeders, risers, wiring, and any other machinery within the
Premises. Landlord shall in no way be liable or responsible for any
loss, damage, or expense that Tenant may sustain or incur by reason of
any change, failure, interference, disruption, or defect in the supply
or character of the electric energy furnished to the Premises, or if
the quantity or character of the electric energy supplied by the
Electric Service Provider is no longer available or suitable for
Tenant's requirements, and no such change, failure, defect,
unavailability, or unsuitability shall constitute an actual or
constructive eviction, in whole or in part, or entitle Tenant to any
abatement or diminution of rent, or relieve Tenant from any of its
obligations under the Lease.
B. Tenant's use of electrical services furnished by Landlord shall not
exceed in voltage, rated capacity, or overall load that which is
standard for the Building. In the event Tenant shall request that it be
allowed to consume electrical services in excess of Building Standard,
Landlord may refuse to consent to such usage or may consent upon such
conditions as Landlord reasonably elects (including the installation of
utility service upgrades, submeters, air handlers or cooling units),
and all such additional useage (to the extent permitted by law),
installation and maintenance thereof shall be paid for by Tenant as
Additional Rent. Landlord, at any time during the Lease Term, shall
have the right to separately meter electrical useage for the Premises
or to measure electrical useage by survey or any other method that
Landlord, in its reasonable judgment, deems appropriate.
12. ENTRY BY LANDLORD. Tenant shall permit Landlord or its agents or
representatives to enter into and upon any part of the Premises to inspect the
same, or to show the Premises to prospective purchasers, mortgagees, tenants
(during the last SIX (6) months of the Lease Term or earlier in connection with
a potential relocation) or insurers, or to clean or make repairs, alterations,
or additions thereto, including any work that Landlord deems necessary for the
safety, protection or preservation of the Building or any occupants thereof, or
to facilitate repairs, alterations or additions to the Building or any other
tenant's premises. Except for any entry by Landlord in an emergency situation or
to provide normal
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cleaning and janitorial service, Landlord shall provide Tenant with reasonable
prior notice of any entry into the premises, which notice may be given verbally.
Landlord shall have the right, WITH FORTY-EIGHT HOURS (48) HOURS PRIOR WRITTEN
NOTICE TO TENANT (EXCEPT IN THE EVENT OF AN EMERGENCY), to temporarily close the
Premises or the Building to perform repairs, alterations or additions in the
Premises or the Building, provided that Landlord shall use reasonable efforts to
perform all such work on weekends and after Normal Business Hours. Entry by
Landlord hereunder shall not constitute a constructive eviction or entitle
Tenant to any abatement or reduction of Rent by reason thereof.
13. ASSIGNMENT AND SUBLETTING
A. Except in connection with a Permitted Transfer (defined in Section
13.E. below), Tenant shall not assign, sublease, transfer or encumber
any interest in this Lease or allow any third party to use any portion
of the Premises (collectively or individually, a "TRANSFER") without
the prior written consent of Landlord, which consent shall not be
unreasonably withheld. Without limitation, it is agreed that Landlord's
consent shall not be considered unreasonably withheld if: (1) the
proposed transferee's financial condition does not meet the criteria
Landlord uses to select Building tenants having similar leasehold
obligations; (2) the proposed transferee's business is not suitable for
the Building considering the business of the other tenants and the
Building's prestige, or would result in a violation of another tenant's
rights; (3) the proposed transferee is a governmental agency or
occupant of the Building; (4) Tenant is in default beyond any
applicable notice and cure period; or (5) any portion of the Building
or the Premises would likely become subject to additional or different
laws as a consequence of the proposed Transfer. Any attempted Transfer
in violation of this Section 13, shall, exercisable in Landlord's sole
and absolute discretion, be voidable. Consent by Landlord to one or
more Transfer(s) shall not operate as a waiver of Landlord's rights to
approve any subsequent Transfer(s). IN NO EVENT SHALL ANY TRANSFER OR
PERMITTED TRANSFER RELEASE OR RELIEVE TENANT FROM ANY OBLIGATION UNDER
THIS LEASE OR ANY LIABILITY HEREUNDER.
B. If Tenant requests Landlord's consent to a Transfer, Tenant shall
submit to Landlord financial statements for the proposed transferee, a
complete copy of the proposed assignment, sublease and other
information as Landlord may reasonably request. Landlord shall within
TEN (10) days after Landlord's receipt of the required information and
documentation either: (1) consent or reasonably refuse consent to the
Transfer in writing; (2) in the event of a proposed assignment of this
Lease or a proposed sublease of the entire Premises for the entire
remaining term of this Lease, terminate this Lease effective the first
to occur of ninety (90) days following written notice of such
termination or the date that the proposed Transfer would have come into
effect. If Landlord shall fail to notify Tenant in writing of its
decision within such TEN (10) days period after the later of the date
Landlord is notified in writing of the proposed Transfer or the date
Landlord has received all required information concerning the proposed
transferee and the proposed Transfer, Landlord shall be deemed to have
refused to consent to such Transfer, and to have elected to keep this
Lease in full force and effect. Tenant shall pay Landlord a review fee
of $500 for Landlord's review of any Permitted Transfer or requested
Transfer. In addition, Tenant shall reimburse Landlord for its actual
reasonable costs and expenses (including without limitation reasonable
attorney's fees) incurred by Landlord in connection with Landlord's
review of such requested Transfer or Permitted Transfer.
C. Tenant shall pay to Landlord fifty percent (50%) of all cash and
other consideration which Tenant receives, LESS REASONABLE BROKERAGE
COMMISSIONS AND ADMINISTRATIVE FEES, as a result of a Transfer that is
in excess of the rent payable to Landlord hereunder for the portion of
the Premises and Term covered by the Transfer within ten (10) days
following receipt thereof by Tenant. If Tenant is in Monetary Default
(defined in Section 22. below), Landlord may require that all sublease
payments be made directly to Landlord, in which case Tenant shall
receive a credit against rent in the amount of any payments received
(less Landlord's share of any excess).
D. Except as provided below with respect to a Permitted Transfer, if
Tenant is a corporation, limited liability company, partnership or
similar entity, and the entity which owns or controls a majority of
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the voting shares/rights at the time changes for any reason (including
but not limited to a merger, consolidation or reorganization), such
change of ownership or control shall constitute a Transfer. The
foregoing shall not apply so long as Tenant is an entity whose
outstanding stock is listed on a nationally recognized security
exchange, or if at least eighty percent (80%) of its voting stock is
owned by another entity, the voting stock of which is so listed.
E. Tenant may assign its entire interest under this Lease or sublet the
Premises to any entity controlling or controlled by or under common
control with Tenant or to any successor to Tenant by purchase, merger,
consolidation or reorganization (hereinafter, collectively, referred to
as "PERMITTED TRANSFER") without the consent of Landlord, provided: (1)
Tenant is not in default under this Lease; (2) if such proposed
transferee is a successor to Tenant by purchase, said proposed
transferee shall acquire all or substantially all of the stock or
assets of Tenant's business or, if such proposed transferee shall
acquire all or substantially all of the stock or assets of Tenant's
business or, if such proposed transferee is a successor to Tenant by
merger, consolidation or reorganization, the continuing or surviving
corporation shall own all or substantially all of the assets of Tenant;
(3) such proposed transferee shall have a net worth which is at least
equal to the greater of Tenant's net worth at the date of this Lease or
Tenant's net worth as of the day prior to the proposed purchase,
merger, consolidation or reorganization as evidenced to Landlord's
reasonable satisfaction; (4) such proposed transferee operates the
business in the Premises for the Permitted Use and no other purpose;
and (5) Tenant shall give Landlord written notice at least thirty (30)
days prior to the effective date of the proposed purchase, merger,
consolidation or reorganization.
F. Tenant agrees that in the event Landlord withholds its consent to
any Transfer contrary to the provisions of this Section 13, Tenant's
sole remedy shall be to seek an injunction in equity or compel
performance by Landlord to give its consent and Tenant expressly waives
any right to damages in the event of such withholding by Landlord of
its consent.
14. MECHANIC'S LIENS. Tenant will not permit any mechanic's liens or other liens
to be placed upon the Premises, the Building, or the Property and nothing in
this Lease shall be deemed or construed in any way as constituting the consent
or request of Landlord, express or implied, by inference or otherwise, to any
person for the performance of any labor or the furnishing of any materials to
the Premises, the Building, or the Property or any part thereof, nor as giving
Tenant any right, power, or authority to contract for or permit the rendering of
any services or the furnishing of any materials that would give rise to any
mechanic's or other liens against the Premises, the Building, or the Property.
In the event any such lien is attached to the Premises, the Building, or the
Property, then, in addition to any other right or remedy of Landlord, Landlord
may, but shall not be obligated to, discharge the same. Any amount paid by
Landlord for any of the aforesaid purposes including, but not limited to,
reasonable attorneys' fees, shall be paid by Tenant to Landlord promptly on
demand as Additional Rent. Tenant shall within ten (10) days of receiving such
notice of lien or claim (a) have such lien or claim released or (b) deliver to
Landlord a bond in form, content, amount and issued by surety, satisfactory to
Landlord, indemnifying, protecting, defending and holding harmless the
Indemnities against all costs and liabilities resulting from such lien or claim
and the foreclosure or attempted foreclosure thereof. Tenant's failure to comply
with the provisions of the foregoing sentence shall be deemed an Event of
Default under Section 22 hereof entitling Landlord to exercise all of its
remedies therefor without the requirement of any additional notice or cure
period.
15. INSURANCE.
A. Landlord shall maintain such insurance on the Building and the
Premises (other than on Tenant's Property or on any additional
improvements constructed in the Premises by Tenant), and such liability
insurance in such amounts as Landlord elects. The cost of such
insurance shall be included as a part of the Basic Costs, and payments
for losses thereunder shall be made solely to Landlord or the
mortgagees of Landlord as their interests shall appear.
B. Tenant shall maintain at its expense, (1) in an amount equal to full
replacement cost, special form (formerly known as all risk) property
insurance on all of its personal property, including removable trade
fixtures and leasehold and tenant improvements, and Tenant's Property
located in the
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Premises and in such additional amounts as are required to meet
Tenant's obligations pursuant to Section 18 hereof and with deductibles
in an amount reasonably satisfactory to Landlord, and (ii) a policy or
policies of commercial general liability insurance (including
endorsement or separate policy for owned or non-owned automobile
liability) with respect to its activities in the Building and on the
Property, with the premiums thereon fully paid on or before the due
date, in an amount of not less than $2,000,000 per occurrence per
person coverage for bodily injury, property damage, personal injury or
combination thereof (the term "personal injury" as used herein means,
without limitation, false arrest, detention or imprisonment, malicious
prosecution, wrongful entry, liable and slander), provided that if only
single limit coverage is available it shall be for at least $2,000,000
per occurrence with an umbrella policy of at least $5,000,000 combined
single limit per occurrence. Tenant's insurance policies shall name
Landlord and Building Manager as additional insureds and shall include
coverage for the contractual liability of Tenant to indemnify Landlord
and Building Manager pursuant to Section 16 of this Lease and shall
have deductibles in an amount reasonably satisfactory to Landlord.
Prior to Tenant's taking possession of the Premises, Tenant shall
furnish evidence satisfactory to Landlord of the maintenance and timely
renewal of such insurance, and Tenant shall obtain and deliver to
Landlord a written obligation on the part of each insurer to notify
Landlord at least thirty (30) days prior to the modification,
cancellation or expiration of such insurance policies. In the event
Tenant shall not have delivered to Landlord a policy or certificate
evidencing such insurance at least thirty (30) days prior to the
expiration date of each expiring policy, Landlord may obtain such
insurance as Landlord may reasonably require to protect Landlord's
interest (which obtaining of insurance shall not be deemed to be a
waiver of Tenant's default hereunder). The cost to Landlord of
obtaining such policies, plus an administrative fee in tile amount of
fifteen percent (15%) of the cost of such policies shall be paid by
Tenant to Landlord as Additional Rent upon demand.
C. The insurance requirements set forth in this Section 15 are
independent of the waiver, indemnification, and other obligations under
this Lease and will not be construed or interpreted in any way to
restrict, limit or modify the waiver, indemnification and other
obligations or to in any way limit any party's liability under this
Lease. In addition to the requirements set forth in Sections 15 and 16,
the insurance required of Tenant under this Lease must be issued by an
insurance company with a rating of no less than A-VIII in the current
Best's Insurance Guide, or A- in the current Standard & Poor Insurance
Solvency Review, or in that is otherwise acceptable to Landlord, and
admitted to engage in the business of insurance in the state in which
the Building is located; be primary insurance for all claims under it
and provide that any insurance carried by Landlord and Landlord's
lenders is strictly excess, secondary and noncontributing with any
insurance carried by Tenant; and provide that insurance may not be
cancelled, nonrenewed or the subject of material change in coverage of
available limits of coverage, except upon thirty (30) days prior
written notice to Landlord and Landlord's lenders. Tenant will deliver
either a duplicate original or a legally enforceable certificate of
insurance on all policies procured by Tenant in compliance with
Tenant's obligations under this Lease, together with evidence
satisfactory to Landlord of the payment of the premiums therefor, to
Landlord on or before the date Tenant first occupies any portion of the
Premises, at least thirty (30) days before the expiration date of any
policy and upon the renewal of any policy. Landlord must give its prior
written approval to all deductibles and self-insured retentions under
Tenant's policies. Tenant may comply with its insurance coverage
requirements through a blanket policy, provided Tenant, at Tenant's
sole expense, procures a "per location" endorsement, or equivalent
reasonably acceptable to Landlord, so that the general aggregate and
other limits apply separately and specifically to the Premises.
D. If Tenant's business operations, conduct or use of the Premises or
any other part of the Property causes an increase in the premium for
any insurance policy carried by Landlord, Tenant will, within THIRTY
(30) days after receipt of notice from Landlord, reimburse Landlord for
the entire increase.
E. Neither Landlord nor Tenant shall be liable (by way of subrogation
or otherwise) to the other party (or to any insurance company insuring
the other party) for any personal injury or loss or damage to any of
the property of Landlord or Tenant, as the case may be, with respect to
their respective
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property, the Building, the Property or the Premises or any addition or
improvements thereto, or any contents therein, to the extent covered by
insurance carried or required to be carried by a party hereto even
though such loss might have been occasioned by the negligence or
willful acts or omissions of the Landlord or Tenant or their respective
employees, agents, contractors or invitees. Since this mutual waiver
will preclude the assignment of any such claim by subrogation (or
otherwise) to an insurance company (or any other person), Landlord and
Tenant each agree to give each insurance company which has issued, or
on the future may issue, policies of insurance, with respect to the
items covered by this waiver, written notice of the terms of this
mutual waiver, and to have such insurance policies properly endorsed,
if necessary, to prevent the invalidation of any of the coverage
provided by such insurance policies by reason of such mutual waiver.
For the purpose of the foregoing waiver, the amount of any deductible
applicable to any loss or damage shall be deemed covered by, and
recoverable by the insured under the insurance policy to which such
deductible relates. In the event that Tenant is permitted to and
self-insures any risk for which insurance is required to be carried
under this Lease, or if Tenant fails to carry any insurance required to
be carried by Tenant pursuant to this Lease, then all loss or damage to
Tenant, its leasehold interest, its business, its property, the
Premises or any additions or improvements thereto or contents thereof
shall be deemed covered by and recoverable by Tenant under valid and
collectible policies of insurance. Notwithstanding anything to the
contrary herein, Landlord shall not be liable to the Tenant or any
insurance company (by way of subrogation or otherwise) insuring the
Tenant for any loss or damage to any property, or bodily injury or
personal injury or any resulting loss of income or losses from worker's
compensation laws and benefits, even though such loss or damage might
have been occasioned by the negligence of Landlord, its agents or
employees, or Building Manager, if any such loss or damage was required
to be covered by insurance pursuant to this Lease.
16. INDEMNITY. TO THE EXTENT NOT CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF LANDLORD nor Building Manager nor any of their respective
officers, directors, employees, members, managers, or agents shall be liable to
Tenant, or to Tenant's agents, servants, employees, customers, licensees, or
invitees for any injury to person or damage to property caused by any act,
omission, or neglect of Tenant, its agents, servants, employees, customers,
invitees, licensees or by any other person entering the Building or upon the
Property under the invitation of Tenant or arising out of the use of the
Property, Building or Premises by Tenant and the conduct of its business or out
of a default by Tenant in the performance of its obligations hereunder. TO THE
EXTENT NOT EXPRESSLY PROHIBITED BY LAW, LANDLORD AND TENANT EACH (IN EITHER
CASE, THE "INDEMNITOR") AGREE TO HOLD HARMLESS AND INDEMNIFY THE OTHER AND THE
OTHER'S AGENTS, PARTNERS, SHAREHOLDERS, OFFICERS, DIRECTORS, BENEFICIARIES AND
EMPLOYEES (COLLECTIVELY, THE "INDEMNITEES") FROM ANY LOSSES, DAMAGES, JUDGMENTS,
CLAIMS, EXPENSES, COSTS AND LIABILITIES IMPOSED UPON OR INCURRED BY OR ASSERTED
AGAINST THE INDEMNITEES, INCLUDING REASONABLE ATTORNEYS' FEES AND EXPENSES, FOR
DEATH OR INJURY TO THIRD PARTIES OTHER THAN INDEMNITEES THAT MAY ARISE FROM
WILLFULL MISCONDUCT OF INDEMNITOR OR ANY OF INDEMNITOR'S AGENTS, PARTNERS OR
EMPLOYEES. SUCH THIRD PARTIES SHALL NOT BE DEEMED THIRD PARTY BENEFICIARIES OF
THIS AGREEMENT. IN CASE ANY ACTION, SUIT OR PROCEEDING IS BROUGHT AGAINST ANY OF
THE INDEMNITEES BY REASON OF ANY SUCH ACT OF INDEMNITOR OR ANY OF INDEMNITOR'S
AGENTS OR EMPLOYEES, THEN INDEMNITOR WILL, AT INDEMNITOR'S EXPENSE AND AT THE
OPTION OF SAID INDEMNITEES, BY COUNSEL REASONABLY APPROVED BY SAID INDEMNITEES,
RESIST AND DEFEND SUCH ACTION, SUIT OR PROCEEDING. Such indemnity for the
benefit of Indemnitees shall be enforceable even if Indemnitees, or any one or
more of them have or has caused or participated in causing such liability and
claims by their joint or concurrent
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acts, negligent or intentional, or otherwise. Notwithstanding the terms of this
Lease to the contrary, the terms of this Section shall survive the expiration or
earlier termination of this Lease.
17. DAMAGES FROM CERTAIN CAUSES. To the extent not expressly prohibited by law,
Landlord shall not be liable to Tenant or Tenant's employees, contractors,
agents, invitees or customers, for any injury to person or damage to property
sustained by Tenant or any such party or any other person claiming through
Tenant resulting from any accident or occurrence in the Premises or any other
portion of the Building caused by the Premises or any other portion of the
Building becoming out of repair or by defect in or failure of equipment, pipes,
or wiring, or by broken glass, or by the backing up of drains, or by gas, water,
steam, electricity, or oil leaking, escaping or flowing into the Premises
(except where due to Landlord's willful failure to make repairs required to be
made pursuant to other provisions of this Lease, after the expiration of a
reasonable time after written notice to Landlord of the need for such repairs),
nor shall Landlord be liable to Tenant for any loss or damage that may be
occasioned by or through the acts or omissions of other tenants of the Building
or of any other persons whomsoever, including, but not limited to riot, strike,
insurrection, war, court order, requisition, order of any governmental body or
authority, acts of God, fire or theft.
18. CASUALTY DAMAGE. If the Premises or any part thereof shall be damaged by
fire or other casualty, Tenant shall give prompt written notice thereof to
Landlord. In case the Building shall be so damaged that substantial alteration
or reconstruction of the Building shall, in Landlord's sole opinion, be required
(whether or not the Premises shall have been damaged by such casualty) or in the
event there is less than two (2) years of the Lease Term remaining or in the
event Landlord's mortgagee should require that the insurance proceeds payable as
a result of a casualty be applied to the payment of the mortgage debt or in the
event of any material uninsured loss to the Building, Landlord may, at its
option, terminate this Lease, by notifying Tenant in writing of such termination
within SIXTY (60) days after the date of such casualty. If Landlord does not
thus elect to terminate this Lease, Landlord shall commence and proceed with
reasonable diligence to restore the Building, and the improvements located
within the Premises, if any, for which Landlord had financial responsibility
pursuant to the Work Letter Agreement attached hereto as EXHIBIT E (except that
Landlord shall not be responsible for delays not within the control of Landlord)
to substantially the same condition in which it was immediately prior to the
happening of the casualty. Notwithstanding the foregoing, Landlord's obligation
to restore the Building, and the improvements located within the Premises, if
any, for which Landlord had financial responsibility pursuant to the Work Letter
Agreement, shall not require Landlord to expend for such repair and restoration
work more than the insurance proceeds actually received by the Landlord as a
result of the casualty and Landlord's obligation to restore shall be further
limited so that Landlord shall not be required to expend for the repair and
restoration of the improvements located within the Premises, if any, for which
Landlord had financial responsibility pursuant to the Work Letter Agreement,
more than the dollar amount of the Allowance, if any, described in the Work
Letter Agreement. When the repairs described in the preceding two sentences have
been completed by Landlord, Tenant shall complete the restoration of all
improvements, including furniture, fixtures and equipment, which are necessary
to permit Tenant's reoccupancy of the Premises. Except as set forth above, all
cost and expense of reconstructing the Premises shall be borne by Tenant, and
Tenant shall present Landlord with evidence satisfactory to Landlord of Tenant's
ability to pay such costs prior to Landlord's commencement of repair and
restoration of the Premises. Landlord shall not be liable for any inconvenience
or annoyance to Tenant or injury to the business of Tenant resulting in any way
from such damage or the repair thereof, except that, subject to the provisions
of the next sentence, Landlord shall allow Tenant a fair diminution of Rent
during the time and to the extent the Premises are unfit for occupancy. If the
Premises or any other portion of the Property is damaged by fire or other
casualty resulting from the fault or negligence of Tenant or any of Tenant's
agents, employees, or invitees, the rent hereunder shall not be diminished
during the repair of such damage and Tenant shall be liable to Landlord for the
cost of the repair and restoration of the Property caused thereby to the extent
such cost and expense is not covered by insurance proceeds.
NOTWITHSTANDING ANYTHING IN THIS ARTICLE 18 TO THE CONTRARY, IF ALL OR ANY
PORTION OF THE PREMISES SHALL BE MADE UNTENANTABLE BY A FIRE OR OTHER CASUALTY,
LANDLORD SHALL WITH REASONABLE PROMPTNESS, CAUSE AN ARCHITECT OR GENERAL
CONTRACTOR SELECTED BY LANDLORD TO ESTIMATE
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THE AMOUNT OF TIME REQUIRED TO SUBSTANTIALLY COMPLETE REPAIR AND RESTORATION OF
THE PREMISES AND MAKE THE PREMISES TENANTABLE AGAIN, USING STANDARD WORKING
METHODS (THE "COMPLETION ESTIMATE"). IF THE COMPLETION ESTIMATE INDICATES THAT
THE PREMISES CANNOT BE MADE TENANTABLE WITHIN TWELVE (12) MONTHS FROM THE DATE
THE REPAIR AND RESTORATION IS STARTED, EITHER PARTY SHALL HAVE THE RIGHT TO
TERMINATE THIS LEASE BY GIVING WRITTEN NOTICE TO THE OTHER OF SUCH ELECTION
WITHIN TEN (10) DAYS AFTER ITS RECEIPT OF THE COMPLETION ESTIMATE. TENANT,
HOWEVER, SHALL NOT HAVE THE RIGHT TO TERMINATE THIS LEASE IN THE EVENT THAT THE
FIRE OR CASUALTY IN QUESTION WAS CAUSED BY THE NEGLIGENCE OR INTENTIONAL
MISCONDUCT OF TENANT. IF THE COMPLETION ESTIMATE INDICATES THAT THE PREMISES CAN
BE MADE TENANTABLE WITHIN TWELVE (12) MONTHS FROM THE DATE THE REPAIR AND
RESTORATION IS STARTED AND LANDLORD HAS NOT OTHERWISE EXERCISED ITS RIGHT TO
TERMINATE THE LEASE PURSUANT TO THE TERMS HEREOF, OR IF THE COMPLETION ESTIMATE
INDICATES THAT THE PREMISES CANNOT BE MADE TENANTABLE WITHIN TWELVE (12) MONTHS,
BUT NEITHER PARTY TERMINATES THIS LEASE PURSUANT TO THIS ARTICLE 18, LANDLORD
SHALL PROCEED WITH REASONABLE PROMPTNESS TO REPAIR AND RESTORE THE PREMISES.
19. CONDEMNATION. If the whole or any substantial part of the Premises or if the
Building or any portion thereof which would leave the remainder of the Building
unsuitable for use as an office building comparable to its use on the
Commencement Date, or if the land on which the Building is located or any
material portion thereof, shall be taken or condemned 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, then Landlord may, at
its option, terminate this Lease and the rent shall be abated during the
unexpired portion of this Lease, effective when the physical taking of said
Premises or said portion of the Building or land shall occur. In the event this
Lease is not terminated, the rent for any portion of the Premises so taken or
condemned shall be abated during the unexpired term of this Lease effective when
the physical taking of said portion of the Premises shall occur. All
compensation awarded for any such taking or condemnation, or sale proceeds in
lieu thereof, shall be the property of Landlord, and Tenant shall have no claim
thereto, the same being hereby expressly waived by Tenant, except for any
portions of such award or proceeds which are specifically allocated by the
condemning or purchasing party for the taking of or damage to trade fixtures of
Tenant, which Tenant specifically reserves to itself.
20. HAZARDOUS SUBSTANCES.
A. Tenant hereby represents and covenants to Landlord the following: No
toxic or hazardous substances or wastes, pollutants or contaminants
(including, without limitation, asbestos, urea formaldehyde, the group
of organic compounds known as polychlorinated biphenyls, petroleum
products including gasoline, fuel oil, crude oil and various
constituents of such products, radon, and any hazardous substance as
defined in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. 9601-9657, as amended ("CERCLA")
(collectively, "ENVIRONMENTAL POLLUTANTS") other than customary office
supplies and cleaning supplies stored and handled within the Premises
in accordance with all applicable laws, will be generated, treated,
stored, released or disposed of, or otherwise placed, deposited in or
located on the Property, and no activity shall be taken on the
Property, by Tenant, its agents, employees, invitees or contractors,
that would cause or contribute to (i) the Property or any part thereof
to become a generation, treatment, storage or disposal facility within
the meaning of or otherwise bring the Property within the ambit of the
Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. 5901
et. seq., or any similar state law or local ordinance, (ii) a release
or threatened release of toxic or hazardous wastes or substances,
pollutants or contaminants, from the Property or any part thereof
within the meaning of, or otherwise result in liability in connection
with the Property within the ambit of CERCLA, or any similar state law
or local ordinance, or (iii) the discharge of pollutants or effluents
into any water source or system, the dredging or filling of any waters,
or the discharge into the air of any emissions, that would require a
permit under
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the Federal Water Pollution Control Act, 33 U.S.C. 1251 et. seq., or
the Clean Air Act, 42 U.S.C. 7401 et. seq., or any similar state law or
local ordinance.
B. Tenant agrees to indemnify and hold Indemnitees (as defined in
Section 16) harmless from and against and to reimburse Indemnitees with
respect to, any and all claims, demands, causes of action, loss,
damage, liabilities, costs and expenses (including attorneys' fees and
court costs) of any and every kind or character, known or unknown,
fixed or contingent, asserted against or incurred by Landlord at any
time and from time-to-time by reason of or arising out of the breach of
any representation or covenant contained in Section 20.A above.
C. Tenant shall immediately notify Landlord in writing of any release
or threatened release of toxic or hazardous wastes or substances,
pollutants or contaminants of which Tenant has knowledge whether or not
the release is in quantities that would require under law the reporting
of such release to a governmental or regulatory agency.
D. Tenant shall also immediately notify Landlord in writing of, and
shall contemporaneously provide Landlord with a copy of:
(1) Any written notice of release of hazardous wastes or
substances, pollutants or contaminants on the
Property that is provided by Tenant or any subtenant
or other occupant if the Premises to a governmental
or regulatory agency;
(2) Any notice of a violation, or a potential or alleged
violation, of any Environmental Law (hereinafter
defined) that is received by Tenant or any subtenant
or other occupant of the Premises from any
governmental or regulatory agency;
(3) Any inquiry, investigation, enforcement, cleanup,
removal, or other action that is instituted or
threatened by a governmental or regulatory agency
against Tenant or any subtenant or other occupant of
the Premises and that relates to the release or
discharge of hazardous wastes or substances,
pollutants or contaminants on or from the Property;
(4) Any claim that is instituted or threatened by any
third-party against Tenant or any subtenant or other
occupant of the Premises and that relates to any
release or discharge of hazardous wastes or
substances, pollutants or contaminants on or from the
Property; and
(5) Any notice of the loss of any environmental operating
permit by Tenant or any subtenant or other occupant
of the Premises.
E. OTHER THAN AS EXPRESSLY SET FORTH IN THAT CERTAIN PHASE I
ENVIRONMENTAL REPORT (A COPY OF WHICH WILL BE PROVIDED FOR TENANT'S
REVIEW AT THE OFFICES OF LANDLORD DURING NORMAL BUSINESS HOURS),
LANDLORD HAS NO ACTUAL KNOWLEDGE OF THE RELEASE OR DISPOSAL OF ANY
HAZARDOUS SUBSTANCES WITHIN THE BUILDING AND, EXCEPT FOR DE MINIMIS
AMOUNTS, LANDLORD SHALL NOT CAUSE OR PERMIT ANY ENVIRONMENTAL
POLLUTANTS TO BE USED, STORED, GENERATED OR DISPOSED OF ON, IN OR ABOUT
THE BUILDING IN VIOLATION OF ANY APPLICABLE ENVIRONMENTAL LAWS.
LANDLORD AGREES TO INDEMNIFY, DEFEND AND HOLD TENANT HARMLESS FROM AND
AGAINST ANY AND ALL CLAIMS, DAMAGES, FINES, JUDGMENTS, PENALTIES,
COSTS, EXPENSES, LIABILITIES OR LOSSES ARISING FROM ANY GOVERNMENTAL
ENTITY OR OTHER THIRD PARTY SEEKING TO ENFORCE AGAINST TENANT OR
SEEKING DAMAGES FROM TENANT, OR SEEKING TO JOIN TENANT IN ANY LEGAL
ACTION
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PERTAINING TO THE VIOLATION BY LANDLORD OF ANY ENVIRONMENTAL LAW(S).
THE INDEMNITY SET FORTH IN THIS SECTION 20.E SHALL NOT BE BINDING UPON
ANY MORTGAGEE OF LANDLORD AND TENANT SHALL LOOK SOLELY TO THE
RESPECTIVE LANDLORD WHEN SUCH LANDLORD IS FINALLY HELD TO HAVE VIOLATED
THE ENVIRONMENTAL LAW AS SET FORTH ABOVE. NEITHER THE PREDECESSOR IN
INTEREST NOR THE SUCCESSOR IN INTEREST TO SUCH LANDLORD SHALL BE LIABLE
TO TENANT FOR THIS INDEMNITY.
F. TO THE EXTENT THAT EITHER LANDLORD OR TENANT (INCLUSIVE OF THEIR
RESPECTIVE EMPLOYEES, AGENTS, CONTRACTORS, SERVANTS, CONCESSIONAIRES,
LICENSEES, OR INVITEES) IS FINALLY HELD BY A COURT OF COMPETENT
JURISDICTION TO BE PARTIALLY AT FAULT FOR ANY CLAIM FOR WHICH AN
INDEMNITY OBLIGATION ARISES HEREUNDER, THEN NEITHER LANDLORD NOR TENANT
AS AGAINST EACH OTHER SHALL INDEMNIFY, DEFEND OR HOLD THE OTHER
HARMLESS AND EACH PARTY SHALL BE LIABLE ONLY TO THE EXTENT OF THE
PERCENTAGE OF ITS OWN FAULT AS FINALLY HELD BY THE COURT OF COMPETENT
JURISDICTION.
G. As used herein "Environmental Laws" mean all present and future
federal, state and municipal laws, ordinances, rules and regulations
applicable to environmental and ecological conditions, and the rules
and regulations of the U.S. Environmental Protection Agency, and any
other federal, state or municipal agency, or governmental board or
entity relating to environmental matters.
21. AMERICANS WITH DISABILITIES ACT - Tenant agrees to comply with all
requirements of the Americans with Disabilities Act (Public Law (July 26, 1990)
("ADA") applicable to the Premises and such other current acts or other
subsequent acts, (whether federal or state) addressing like issues as are
enacted or amended. Tenant agrees to indemnify and hold Landlord harmless from
any and all expenses, liabilities, costs or damages suffered by Landlord as a
result of additional obligations which may be imposed on the Building or the
Property under of such acts by virtue of Tenant's operations and/or occupancy.
Tenant acknowledges that it will be wholly responsible for any provision of the
Lease which could arguably be construed as authorizing a violation of the ADA.
Any such provision shall be interpreted in a manner which permits compliance
with the ADA and is hereby amended to permit such compliance.
22. EVENTS OF DEFAULT
A. The following events shall be deemed to be "EVENTS OF DEFAULT" under
this Lease:
(1) Tenant shall fail to pay when due any Base Rent,
Additional Rent or other amount payable by Tenant to
Landlord under this Lease (hereinafter sometimes
referred to as a "MONETARY DEFAULT").
(2) Any failure by Tenant (other than a Monetary Default)
to comply with any term, provision or covenant of
this Lease, which failure is not cured within thirty
(30) days after delivery to Tenant of notice of the
occurrence of such failure provided, however, that if
the term, condition, covenant or obligation to be
performed by Tenant is of such nature that the same
cannot reasonably be performed within such thirty-day
period, such default shall be deemed to have been
cured if Tenant commences such performance within
said thirty-day period and thereafter diligently
undertakes to complete the same, and in fact,
completes same within sixty (60) days after notice.
(3) Any failure by Tenant to observe or perform any of
the covenants with respect to (a) assignment and
subletting set forth in Section 13, (b) mechanic's
liens set forth in Section 14, or (c) insurance set
forth in Section 15.
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(4) Tenant or any Guarantor shall (a) become insolvent,
(b) make a transfer in fraud of creditors (c) make an
assignment for the benefit of creditors, (d) admit in
writing its inability to pay its debts as they become
due, (e) file a petition under any section or chapter
of the United States Bankruptcy Code, as amended,
pertaining to bankruptcy, or under any similar law or
statute of the United States or any State thereof, or
Tenant or any Guarantor shall be adjudged bankrupt or
insolvent in proceedings filed against Tenant or any
Guarantor thereunder; or a petition or answer
proposing the adjudication of Tenant or any Guarantor
as a bankrupt or its reorganization under any present
or future federal or state bankruptcy or similar law
shall be filed in any court and such petition or
answer shall not be discharged or denied within sixty
(60) days after the filing thereof
(5) A receiver or trustee shall be appointed for all or
substantially all of the assets of Tenant or any
Guarantor or of the Premises or of any of Tenant's
property located thereon in any proceeding brought by
Tenant or any Guarantor, or any such receiver or
trustee shall be appointed in any proceeding brought
against Tenant or any Guarantor and shall not be
discharged within sixty (60) days after such
appointment or Tenant or such Guarantor shall consent
to or acquiesce in such appointment.
(6) The leasehold estate hereunder shall be taken on
execution or other process of law in any action
against Tenant.
(7) Tenant shall, WITHOUT WRITTEN NOTICE TO LANDLORD,
abandon or vacate any substantial portion of the
Premises.
(8) Tenant shall fail to take possession of and occupy
the Premises within thirty (30) days following the
Commencement Date and thereafter continuously conduct
its operations in the Premises for the Permitted Use
as set forth in Section 4 hereof.
(9) The liquidation, termination, dissolution, forfeiture
of right to do business or death of Tenant or any
Guarantor.
23. REMEDIES.
A. Upon the occurrence of any Event of Default, Landlord shall have the
following rights and remedies, in addition to those allowed by law or
equity, any one or more of which may be exercised without further
notice to or demand upon Tenant and which may be pursued successively
or cumulatively as Landlord may elect:
(1) Landlord may re-enter the Premises and cure any
default of Tenant, in which event Tenant shall, upon
demand, reimburse Landlord as Additional Rent for any
cost and expenses which Landlord may incur to cure
such default; and Landlord shall not be liable to
Tenant for any loss or damage which Tenant may
sustain by reason of Landlord's action, regardless of
whether caused by Landlord's negligence or otherwise.
(2) Landlord may terminate this Lease by giving to Tenant
notice of Landlord's election to do so, in which
event the Term shall end, and all right, title and
interest of Tenant hereunder shall expire, on the
date stated in such notice;
(3) Landlord may terminate the right of Tenant to
possession of the Premises without terminating this
Lease by giving notice to Tenant that Tenant's right
to possession shall end on the date stated in such
notice, whereupon the right of Tenant to possession
of the Premises or any part thereof shall cease on
the date stated in such notice; and
(4) Landlord may enforce the provisions of this Lease and
may enforce and protect the rights of Landlord
hereunder by a suit or suits in equity or at law for
the specific performance of any covenant or agreement
contained herein, or for the enforcement of any other
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appropriate legal or equitable remedy, including
recovery of all moneys due or to become due from
Tenant under any of the provisions of this lease.
Landlord shall not be required to serve Tenant with any notices or
demands as a prerequisite to its exercise of any of its rights or
remedies under this Lease, other than those notices and demands
specifically required under this Lease. TENANT EXPRESSLY WAIVES THE
SERVICE OF ANY STATUTORY DEMAND OR NOTICE WHICH IS A PREREQUISITE TO
LANDLORD'S COMMENCEMENT OF EVICTION PROCEEDINGS AGAINST TENANT,
INCLUDING THE DEMANDS AND NOTICES SPECIFIED IN SECTIONS ▇▇-▇▇-▇▇▇,
▇▇-▇▇-▇▇▇ AND ▇▇-▇▇-▇▇▇ OF THE COLORADO REVISED STATUTES (1973). TENANT
WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY LAWSUIT BROUGHT BY LANDLORD TO
RECOVER POSSESSION OF THE PREMISES FOLLOWING LANDLORD'S TERMINATION OF
THIS LEASE PURSUANT TO SECTION 23A(2) OR THE RIGHT OF TENANT TO
POSSESSION OF THE PREMISES PURSUANT TO SECTION 23A(3) AND ON ANY CLAIM
FOR DELINQUENT RENT WHICH LANDLORD MAY JOIN IN ITS LAWSUIT TO RECOVER
POSSESSION.
B. If Landlord exercises either of the remedies provided in Sections
23.A.(2) or 23.A.(3), Tenant shall surrender possession and vacate the
Premises and immediately deliver possession thereof to Landlord, and
Landlord may re-enter and take complete and peaceful possession of the
Premises, with process of law, full and complete license to do so being
hereby granted to Landlord, and Landlord may remove all occupants and
property therefrom, using such force as may be necessary to the extent
allowed by law, without being deemed guilty in any manner of trespass,
eviction or forcible entry and detainer and without relinquishing
Landlord's right to Rent or any other right given to Landlord hereunder
or by operation of law.
C. If Landlord terminates the right of Tenant to possession of the
Premises without terminating this Lease, Landlord shall have the right
to immediate recovery of all amounts then due hereunder. Such
termination of possession shall not release Tenant, in whole or in
part, from Tenant's obligation to pay Rent hereunder for the full Term,
and Landlord shall have the right, from time to time, to recover from
Tenant, and Tenant shall remain liable for, all Base Rent, Additional
Rent and any other sums accruing as they become due under this Lease
during the period from the date of such notice of termination of
possession to the stated end of the Term. In any such case, Landlord
may relet the Premises or any part thereof for the account of Tenant
for such rent, for such time (which may be for a term extending beyond
the Term) and upon such terms as Landlord shall determine and may
collect the rents from such reletting. Landlord shall not be required
to accept any tenant offered by Tenant or to observe any instructions
given by Tenant relative to such reletting. Also, in any such case,
Landlord may make repairs, alterations and additions in or to the
Premises and redecorate the same to the extent deemed by Landlord
necessary or desirable and in connection therewith change the locks to
the Premises, and Tenant upon demand shall pay the cost of all of the
foregoing together with Landlord's expenses of reletting. The rents
from any such reletting shall be applied first to the payment of the
expenses of reentry, redecoration, repair and alterations and the
expenses of reletting and second to the payment of Rent herein provided
to be paid by Tenant. Any excess or residue shall operate only as an
offsetting credit against the amount of Rent due and owing as the same
thereafter becomes due and payable hereunder, and the use of such
offsetting credit to reduce the amount of Rent due Landlord, if any,
shall not be deemed to give Tenant any right, title or interest in or
to such excess or residue and any such excess or residue shall belong
to Landlord solely, and in no event shall Tenant be entitled to a
credit on its indebtedness to Landlord in excess of the aggregate sum
(including Base Rent and Additional Rent) which would have been paid by
Tenant for the period for which the credit to Tenant is being
determined, had no Event of Default occurred. No such reentry or
repossession, repairs, alterations and additions, or reletting shall be
construed as an eviction or ouster of Tenant or as an election on
Landlord's part to terminate this Lease, unless a written notice of
such intention is given to Tenant, or shall operate to release Tenant
in whole or in part from any of Tenant's obligations hereunder, and
Landlord, at any time and from time to time, may ▇▇▇ and recover
judgment for any deficiencies remaining after the application of the
proceeds of any such reletting.
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D. If this Lease is terminated by Landlord pursuant to Section
23.A.(2), Landlord shall be entitled to recover from Tenant all Rent
accrued and unpaid for the period up to and including such termination
date, as well as all other additional sums payable by Tenant, or for
which Tenant is liable or for which Tenant has agreed to indemnify
Landlord under any of the provisions of this Lease, which may be then
owing and unpaid, and all costs and expenses, including without
limitation court costs and attorneys' fees incurred by Landlord in the
enforcement of its rights and remedies hereunder, and, in addition,
Landlord shall be entitled to recover as damages for loss of the
bargain and not as a penalty (i) the unamortized portion of any
concessions offered by Landlord to Tenant in connection with this
Lease, including without limitation Landlord's contribution to the cost
of tenant improvements and alterations, if any, installed by either
Landlord or Tenant pursuant to this Lease or any work letter in
connection with this Lease, (ii) the aggregate sum which at the time of
such termination represents the excess, if any, of the present value
of the aggregate rents which would have been payable after the
termination date had this Lease not been terminated, including, without
limitation, Base Rent at the annual rate or respective annual rates for
the remainder of the Term provided for in this Lease and the amount
projected by Landlord to represent Additional Rent for the remainder of
the Term over the then present value of the then aggregate fair rent
value of the Premises for the balance of the Term, such present worth
to be computed in each case on the basis of a ten percent (10%) per
annum discount from the respective dates upon which such Rents would
have been payable hereunder had this Lease not been terminated, and
(iii) any damages in addition thereto, including without limitation
reasonable attorneys' fees and court costs, which Landlord sustains as
a result of the breach of any of the covenants of this Lease other than
for the payment of Rent.
E. Landlord shall use commercially reasonable efforts to mitigate any
damages resulting from an Event of Default by Tenant under this Lease.
Landlord's obligation to mitigate damages after an Event of Default by
Tenant under this Lease shall be satisfied in full if Landlord
undertakes to lease the Premises to another tenant (a "SUBSTITUTE
TENANT") in accordance with the following criteria:
(1) Landlord shall have no obligations to solicit or
entertain negotiations with any other prospective
tenants for the Premises until Landlord obtains full
and complete possession of the Premises including,
without limitation, the final and unappealable legal
right to relet the Premises free of any claim of
Tenant;
(2) Landlord shall not be obligated to lease or show the
Premises, on a priority basis, offer the Premises to
a prospective tenant when other premises in the
Building suitable for that prospective tenant's use
are (or soon will be) available;
(3) Landlord shall not be obligated to lease the Premises
to a Substitute Tenant for a Rent less than the
current fair market Rent then prevailing for similar
uses in comparable buildings in the same market area
as the Building, nor shall Landlord be obligated to
enter into a new lease under other terms and
conditions that are unacceptable to Landlord under
Landlord's then current leasing policies for
comparable space in the Building;
(4) Landlord shall not be obligated to enter into a lease
with a Substitute Tenant whose use would:
(i) violate any restriction, covenant, or
requirement contained in the lease of
another tenant of the Building;
(ii) adversely affect the reputation of the
Building; or
(iii) be incompatible with the operation of the
Building as an office building;
(5) Landlord shall not be obligated to enter into a lease
with any proposed Substitute Tenant which does not
have, in Landlord's reasonable opinion, sufficient
financial resources to operate the Premises in a
first class manner; and
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(6) Landlord shall not be required to expend any amount
of money to alter, remodel, or otherwise make the
Premises suitable for use by a proposed Substitute
Tenant unless:
(i) Tenant pays any such sum to Landlord in
advance of Landlord's execution of a lease
with such tenant (which payment shall not be
in lieu of any damages or other sums to
which Landlord may be entitled as a result
of Tenant's default under this Lease); or
(ii) Landlord, in Landlord's reasonable
discretion, determines that any such
expenditure is financially justified in
connection with entering into any such
substitute lease.
F. All property of Tenant removed from the Premises by Landlord
pursuant to any provision of this Lease or applicable law may be
handled, removed or stored by Landlord at the cost and expense of
Tenant, and Landlord shall not be responsible in any event for the
value, preservation or safekeeping thereof. Tenant shall pay Landlord
for all expenses incurred by Landlord with respect to such removal and
storage so long as the same is in Landlord's possession or under
Landlord's control. All such property not removed from the Premises or
retaken from storage by Tenant within thirty (30) days after the end of
the Term or the termination of Tenant's right to possession of the
Premises, however terminated, at Landlord's option, shall be
conclusively deemed to have been conveyed by Tenant to Landlord as by
▇▇▇▇ of sale without further payment or credit by Landlord to Tenant.
G. Tenant hereby grants to Landlord a first lien upon the interest of
Tenant under this Lease to secure the payment of moneys due under this
Lease, which lien may be enforced in equity, and Landlord shall be
entitled as a matter of right to have a receiver appointed to take
possession of the Premises and relet the same under order of court.
H. If Tenant is adjudged bankrupt, or a trustee in bankruptcy is
appointed for Tenant, Landlord and Tenant, to the extent permitted by
law, agree to request that the trustee in bankruptcy determine within
sixty (60) days thereafter whether to assume or to reject this Lease.
I. The receipt by Landlord of less than the full rent due shall not be
construed to be other than a payment on account of rent then due, nor
shall any statement on Tenant's check or any letter accompanying
Tenant's check be deemed an accord and satisfaction, and Landlord may
accept such payment without prejudice to Landlord's right to recover
the balance of the rent due or to pursue any other remedies provided in
this lease. The acceptance by Landlord of rent hereunder shall not be
construed to be a waiver of any breach by Tenant of any term, covenant
or condition of this Lease. No act or omission by Landlord or its
employees or agents during the term of this Lease shall be deemed an
acceptance of a surrender of the Premises, and no agreement to accept
such a surrender shall be valid unless in writing and signed by
Landlord.
J. In the event of any litigation between Tenant and Landlord to
enforce any provision of this Lease or any right of either party
hereto, the unsuccessful party to such litigation shall pay to the
successful party all costs and expenses, including reasonable
attorney's fees, incurred therein. Furthermore, if Landlord, without
fault, is made a party to any litigation instituted by or against
Tenant, Tenant shall indemnify Landlord against, and protect, defend,
and save it harmless from, all costs and expenses, including reasonable
attorney's fees, incurred by it in connection therewith. If Tenant,
without fault, is made party to any litigation instituted by or against
Landlord, Landlord shall indemnify Tenant against, and protect, defend,
and save it harmless from, all costs and expenses, including reasonable
attorney's fees, incurred by it in connection therewith.
24. NO WAIVER. Failure of Landlord to declare any default immediately upon its
occurrence, or delay in taking any action in connection with an event of
default, shall not constitute a waiver of such default, nor shall it constitute
an estoppel against Landlord but Landlord shall have the right to declare the
default at any time and take such action as is lawful or authorized under this
Lease. Failure by Landlord to enforce
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its rights with respect to any one default shall not constitute a waiver of its
rights with respect to any subsequent default.
25. PEACEFUL ENJOYMENT. Tenant shall, and may peacefully have, hold, and enjoy
the Premises, subject to the other terms hereof, provided that Tenant pays the
Rent and other sums herein recited to be paid by Tenant and timely performs all
of Tenant's covenants and agreements herein contained. This covenant and any and
all other covenants of Landlord shall be binding upon Landlord and its
successors only with respect to breaches occurring during its or their
respective periods of ownership of the Landlord's interest hereunder.
26. INTENTIONALLY DELETED.
27. HOLDING OVER. In the event of holding over by Tenant after expiration or
other termination of this Lease or in the event Tenant continues to occupy the
Premises after the termination of Tenant's right of possession pursuant to
Section 23.A(3) hereof, occupancy of the Premises subsequent to such termination
or expiration shall be that of a tenancy at sufferance and in no event for
month-to-month or year-to-year. Tenant shall, throughout the entire holdover
period, be subject to all the terms and provisions of this Lease and shall pay
for its use and occupancy an amount (on a per month basis without reduction for
any partial months during any such holdover) equal to ONE AND ONE HALF the sum
(or 150%) of (a) the greater of then current market rate, or (b) the Base Rent
and Additional Rent which would have been applicable had the Lease Term
continued through the period of such holding over by Tenant. No holding over by
Tenant or payments of money by Tenant to Landlord after the expiration of the
Lease Term shall be construed to extend the Lease Term or prevent Landlord from
recovery of immediate possession of the Premises by summary proceedings or
otherwise unless Landlord has sent written notice to Tenant that Landlord has
elected to extend the Lease Term. In addition to the obligation to pay the
amounts set forth above during any such holdover period, Tenant shall also be
liable to Landlord for all damages, including, without limitation, any
consequential damages, which Landlord may suffer by reason of any holding over
by Tenant and Tenant shall also indemnify Landlord against any and all claims
made by any other tenant or prospective tenant against Landlord for delay by
Landlord in delivering possession of the Premises to such other tenant or
prospective tenant.
28. SUBORDINATION TO MORTGAGE/ESTOPPEL CERTIFICATE. Tenant accepts this Lease
subject and subordinate to any mortgage, deed of trust or other lien presently
existing or hereafter arising upon the Premises, or upon the Building and/or the
Property and to any renewals, modifications, refinancings and extensions
thereof, but Tenant agrees that any such mortgagee shall have the right at any
time to subordinate such mortgage, deed of trust or other lien to this Lease on
such terms and subject to such conditions as such mortgagee may deem appropriate
in its discretion. The provisions of the foregoing sentence shall be
self-operative and no further instrument of subordination shall be required.
However, Landlord is hereby irrevocably vested with full power and authority to
subordinate this Lease to any mortgage, deed of trust or other lien now existing
or hereafter placed upon the Premises, or the Building and/or the Property and
Tenant agrees within ten (10) days after demand to execute such further
instruments subordinating this Lease or attorning to the holder of any such
liens as Landlord may request. The terms of this Lease are subject to approval
by the Landlord's existing lender(s) and any lender(s) who, at the time of the
execution of this Lease, have committed or are considering committing to
Landlord to
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make a loan secured by all or any portion of the Property, and such approval is
a condition precedent to Landlord's obligations hereunder. In the event that
Tenant should fail to execute any subordination or other agreement required by
this Section promptly as requested, Tenant hereby irrevocably constitutes
Landlord as its attorney-in-fact to execute such instrument in Tenant's name,
place and stead, it being agreed that such power is one coupled with an interest
in Landlord and is accordingly irrevocable. Tenant agrees that it will from
time-to-time upon request by Landlord execute and deliver to such persons as
Landlord shall request a statement in recordable form certifying that this Lease
is unmodified and in full force and effect (or if there have been modifications,
that the same is in full force and effect as so modified), stating the dates to
which rent and other charges payable under this Lease have been paid, stating
that Landlord is not in default hereunder (or if Tenant alleges a default
stating the nature of such alleged default) and further stating such other
matters as Landlord shall reasonably require. Tenant agrees periodically to
furnish within ten (10) days after so requested by Landlord, ground lessor or
the holder of any deed of trust, mortgage or security agreement covering the
Building, the Property, or any interest of Landlord therein, a certificate
signed by Tenant certifying (a) that this Lease is in full force and effect and
unmodified (or if there have been modifications, that the same is in full force
and effect as modified and stating the modifications), (b) as to the
Commencement Date and the date through which Base Rent and Tenant's Additional
Rent have been paid, (c) that Tenant has accepted possession of the Premises and
that any improvements required by the terms of this Lease to be made by Landlord
have been completed to the satisfaction of Tenant, (d) that except as stated in
the certificate no rent has been paid more than thirty (30) days in advance of
its due date, (e) that the address for notices to be sent to Tenant is as set
forth in this Lease (or has been changed by notice duly given and is as set
forth in the certificate), (f) that except as stated in the certificate, Tenant,
as of the date of such certificate, has no charge, lien, or claim of offset
against rent due or to become due, (g) that except as stated in the certificate,
Landlord is not then in default under this Lease, (h) as to the amount of the
Approximate Rentable Area of the Premises then occupied by Tenant, (i) that
there are no renewal or extension options, purchase options, rights of first
refusal or the like in favor of Tenant except as set forth in this Lease, (j)
the amount and nature of accounts payable to Landlord under terms of this Lease,
and (k) as to such other matters as may be requested by Landlord or ground
lessor or the holder of any such deed of trust, mortgage or security agreement.
Any such certificate may be relied upon by any ground lessor, prospective
purchaser, secured party, mortgagee or any beneficiary under any mortgage, deed
of trust on the Building or the Property or any part thereof or interest of
Landlord therein.
29. NOTICE. Any notice required or permitted to be given under this Lease or by
law shall be deemed to have been given if it is written and delivered in person
or mailed by Registered or Certified mail, postage prepaid, or sent by a
nationally recognized overnight delivery service to the party who is to receive
such notice at the address specified in Section 1.Y. of this Lease. When so
mailed, the notice shall be deemed to have been given two (2) business days
after the date it was mailed. When sent by overnight delivery service, the
notice shall be deemed to have been given on the next business day after deposit
with such overnight delivery service. The address specified in Section 1.Y. of
this Lease may be changed from time to time by giving written notice thereof to
the other party.
30. LANDLORD'S LIEN. In addition to any statutory lien for rent in Landlord's
favor, Landlord (the secured party for purposes hereof) shall have and Tenant
(the debtor for purposes hereof) hereby grants to Landlord, a continuing
security interest for all Base Rent, Additional Rent and other sums of money
becoming due hereunder from Tenant, upon all goods, wares, equipment, fixtures,
furniture, inventory, accounts, contract rights, chattel paper and other
personal property of Tenant situated on the Premises subject to this Lease and
such property shall not be removed therefrom without the consent of Landlord
until all arrearages in Rent as well as any and all sums of money then due to
Landlord hereunder shall first have been paid and discharged. In the event of a
default under this Lease, landlord shall have, in addition to any other remedies
provided herein or by law, all rights and remedies under the Uniform Commercial
Code, including without limitation the right to sell the property described in
this Section at public or private sale upon ten (10) days notice to Tenant which
notice Tenant hereby agrees is adequate and reasonable. Tenant hereby agrees to
execute such other instruments necessary or desirable in Landlord's discretion
to perfect the security interest hereby created. Any statutory lien for Rent in
not hereby waived, the express contractual lien herein being granted in addition
and supplementary thereto. Tenant warrants and represents that the collateral
subject to the security interest granted herein is not purchased or used by
Tenant for personal, family or household purposes. Tenant further warrants and
represents that the lien
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granted herein constitutes a first and superior lien and the Tenant will not
allow the placing of any other lien upon the property described in this Section
without the prior written consent of Landlord.
31. SURRENDER OF PREMISES. Upon the termination, whether by lapse of time or
otherwise, or upon any termination of Tenant's right to possession without
termination of the Lease, Tenant will at once surrender possession and vacate
the Premises, together with all Leasehold Improvements (except those Leasehold
Improvements Tenant is required to remove pursuant to Section 8 hereof), to
Landlord in good condition and repair, ordinary wear and tear excepted;
conditions existing because of Tenant's failure to perform maintenance, repairs
or replacements as required of Tenant under this Lease shall not be deemed
"reasonable wear and tear." Tenant shall surrender to Landlord all keys to the
Premises and make known to Landlord the explanation of all combination locks
which Tenant is permitted to leave on the Premises. Subject to the Landlord's
rights under Section 23 hereof, if Tenant fails to remove any of Tenant's
Property within one (1) day after the termination of this Lease, or Tenant's
right to possession hereunder, Landlord, at Tenant's sole cost and expenses,
shall be entitled to remove and/or store such Tenant's Property and Landlord
shall be in no event be responsible for the value, preservation or safekeeping
thereof. Tenant shall pay Landlord, upon demand, any and all reasonable expenses
caused by such removal and all storage charges against such property so long as
the same shall be in possession of Landlord or under the control of Landlord. In
addition, if Tenant fails to remove any Tenant's Property from the Premises or
storage, as the case may be, within ten (10) days after written notice from
Landlord, Landlord, at its option, may deem all or any part of such Tenant's
Property to have been abandoned by Tenant and title thereof shall immediately
pass to Landlord under this Lease as by a ▇▇▇▇ of sale.
32. RIGHTS RESERVED TO LANDLORD. Landlord reserves the following rights,
exercisable without notice, except as provided herein, and without liability to
Tenant for damage or injury to property, person or business and without
affecting an eviction or disturbance of Tenant's use or possession or giving
rise to any claim for setoff or abatement of rent or affecting any of Tenant's
obligations under this Lease: (1) upon thirty (30) days prior notice to change
the name or street address of the Building; (2) to install and maintain signs on
the exterior and interior of the Building; (3) to designate and approve window
coverings to present a uniform exterior appearance; (4) to make any decorations,
alterations, additions, improvements to the Building or Property, or any part
thereof (including, with prior notice, the Premises) which Landlord shall
desire, or deem necessary for the safety, protection, preservation or
improvement of the Building or Property, or as Landlord may be required to do by
law; (5) to have access to the Premises at reasonable hours to perform its
duties and obligations, IN ACCORDANCE WITH SECTION 12 and to exercise its rights
under this Lease; (6) to retain at all times and to use in appropriate
instances, pass keys to all locks within and to the Premises; (7) to REASONABLY
approve the weight, size, or location of heavy equipment, or articles within the
Premises; (8) to close or restrict access to the Building at all times other
than Normal Business Hours subject to Tenant's right to admittance at all times
under such regulations as Landlord may prescribe from time to time, or to close
(temporarily or permanently) any of the entrances to the Building; provided
Landlord shall have the right to restrict or prohibit access to the Building or
the Premises at any time Landlord determines it is necessary to do so to
minimize the risk of injuries or death to persons or damage to property (9) to
change the arrangement and/or location of entrances of passageways, doors and
doorways, corridors, elevators, stairs, toilets and public parts of the Building
or Property; (10) to regulate access to telephone, electrical and other utility
closets in the building and to require use of designated contractors for any
work involving access to the same; (11) to grant to anyone the exclusive right
to conduct any business or undertaking in the Building provided Landlord's
exercise of its rights under this clause 11, shall not be deemed to prohibit
Tenant from the operation of its business in the Premises and shall not
constitute a constructive eviction.
33. MISCELLANEOUS.
A. If any term or provision of this Lease, or the application thereof
to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such
term or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable,
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shall not be affected thereby, and each term and provision of this
Lease shall be valid and enforced to the fullest extent permitted by
law.
B. Tenant agrees not to record this Lease or any short form, or
memorandum hereof.
C. This Lease and the rights and obligations of the parties hereto
shall be interpreted, construed, and enforced in accordance with the
laws of the state in which the Building is located.
D. Events of "FORCE MAJEURE" shall include strikes, riots, acts of God,
shortages of materials, war, governmental laws, regulations or
restrictions, or any other cause whatsoever beyond the control of
Landlord or Tenant, as the case may be. Whenever a period of time is
herein prescribed for the taking of any action by Landlord or Tenant
(other than the payment of Rent and all other such sums of money as
shall become due hereunder), such party shall not be liable or
responsible for, there shall be excluded from the computation of such
period of time, any delays due to events of Force Majeure.
E. Except as expressly otherwise herein provided, with respect to all
required acts of Tenant, time is of the essence of this Lease.
F. Landlord shall have the right to transfer and assign, in whole or in
part, all of its rights and obligations hereunder and in the Building
and Property referred to herein, and in such event and upon such
transfer Landlord shall be released from any further obligations
hereunder, and Tenant agrees to look solely to such successor in
interest of Landlord for the performance of such obligations.
G. Tenant hereby represents to Landlord that it has dealt directly with
and only with the Broker as a broker in connection with this Lease.
Landlord and Tenant hereby indemnify and hold each other harmless
against any loss, claim, expense or liability with respect to any
commissions or brokerage fees claimed on account of the execution
and/or renewal of this Lease due to any action of the indemnifying
party.
H. If there is more than one Tenant, or if the Tenant as such is
comprised of more than one person or entity, the obligations hereunder
imposed upon Tenant shall be joint and several obligations of all such
parties. All notices, payments, and agreements given or made by, with
or to any one of such persons or entities shall be deemed to have been
given or made by, with or to all of them.
I. The individual signing this Lease on behalf of Tenant represents (1)
that such individual is duly authorized to execute or attest and
deliver this Lease on behalf of Tenant in accordance with the
organizational documents of Tenant; (2) that this Lease is binding upon
Tenant; (3) that Tenant is duly organized and legally existing in the
state of its organization, and is qualified to do business in the state
in which the Premises is located.
J. Tenant acknowledges that the financial capability of Tenant to
perform its obligations hereunder is material to Landlord and that
Landlord would not enter into this Lease but for its belief, based on
its review of Tenant's financial statements, that Tenant is capable of
performing such financial obligations. Tenant hereby represents,
warrants and certifies to Landlord that its financial statements
previously furnished to Landlord were at the time given true and
correct in all material respects and that there have been no material
subsequent changes thereto as of the date of this Lease.
K. Notwithstanding anything to the contrary contained in this Lease,
the expiration of the Lease Term, whether by lapse of time or
otherwise, shall not relieve Tenant from Tenant's obligations accruing
prior to the expiration of the Lease Term, and such obligations shall
survive any such expiration or other termination of the Lease Term.
L. Landlord has delivered a copy of this Lease to Tenant for Tenant's
review only, and the delivery hereof does not constitute an offer to
Tenant or an option. This Lease shall not be effective until an
original of this Lease executed by both Landlord and Tenant and an
original Guaranty, if applicable,
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HEREINAFTER REQUIRED. NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED IN THIS LEASE, THE LIABILITY OF LANDLORD TO TENANT FOR ANY
DEFAULT BY LANDLORD UNDER THIS LEASE SHALL BE LIMITED TO THE INTEREST
OF LANDLORD IN THE BUILDING AND THE PROPERTY AND TENANT AGREES TO LOOK
SOLELY TO LANDLORD'S INTEREST IN THE BUILDING AND THE PROPERTY FOR THE
RECOVERY OF ANY JUDGMENT AGAINST THE LANDLORD, IT BEING INTENDED THAT
LANDLORD SHALL NOT BE PERSONALLY LIABLE FOR ANY JUDGMENT OR DEFICIENCY.
TENANT HEREBY COVENANTS THAT, PRIOR TO THE FILING OF ANY SUIT FOR
DIRECT AND PROXIMATE DAMAGES, IT SHALL GIVE LANDLORD AND ALL MORTGAGEES
WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES OR DEED OF TRUST LIENS ON
THE PROPERTY, BUILDING OR PREMISES ("LANDLORD MORTGAGEES") NOTICE AND
REASONABLE TIME TO CURE ANY ALLEGED DEFAULT BY LANDLORD.
THE BOTTOM OF THIS PAGE IS INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease in multiple
original counterparts as of the day and year first above written.
WITNESS/ATTEST LANDLORD:
MONY/BDP Office I, a Colorado Limited
Liability Company
Transwestern Investment Company,
L.L.C. as Agent
By: /s/ ▇▇▇▇▇▇▇▇ Puemo By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ Puemo Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Admin. Associate Title: Senior Vice President
WITNESS/ATTEST TENANT:
Integrated Information Systems, Inc., a
Delaware Corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Associate General Counsel Title: VP & Corp. Counsel
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EXHIBIT A
OUTLINE AND LOCATION OF PREMISES
This Exhibit is attached to and made a part of the Lease dated 5/26, 2000 by and
between MONY/BDP OFFICE I, A COLORADO LIMITED LIABILITY COMPANY ("LANDLORD") AND
INTEGRATED INFORMATION SYSTEMS, INC. A DELAWARE CORPORATION ("TENANT") for space
in the Building located at Executive Center One, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
[GRAPHIC OF FIRST FLOOR PLAN]
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EXHIBIT B
LEGAL DESCRIPTION
LOTS 3 OF LINCOLN EXECUTIVE CENTER FILING NO. 1, AS RECORDED ON NOVEMBER 28,
1984 IN BOOK 80 AT PAGES ▇▇-▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇.
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EXHIBIT C
RULES AND REGULATIONS
The following rules and regulations shall apply, where applicable, to the
Premises, the Building, the parking garage associated therewith (if any), the
Property and the appurtenances thereto:
1. Sidewalks, entrances, passageways, courts, corridors, vestibules,
halls, elevators and stairways in and about the Building shall not be
obstructed nor shall objects be placed against glass partitions, doors
or windows which would be unsightly from the Building's corridors from
the exterior of the Building.
2. Plumbing, fixtures and appliances shall be used for only the purpose
for which they were designed and no UNUSUAL foreign substance of any
kind whatsoever shall be thrown or placed therein. Damage resulting to
any such fixtures or appliances from misuse by Tenant or its agents,
employees or invitees, shall be paid for by Tenant and Landlord shall
not in any case be responsible therefor.
3. Any sign, lettering, picture, notice, advertisement installed within
the Premises which is visible from the public corridors within the
Building shall be installed in such manner, and be of such character
and style, as Landlord shall approve, in writing in its reasonable
discretion. No sign, lettering, picture, notice or advertisement shall
be placed on any outside window or door or in a position to be visible
from outside the Building. No nails, hooks or screws (except for
customary artwork or wall hangings) shall be driven or inserted into
any part of the Premises or Building except by Building maintenance
personnel, nor shall any part of the Building be defaced or damaged by
Tenant.
4. Tenant shall not place any additional lock or locks on any door in the
Premises or Building without Landlord's prior written consent. A
reasonable number of keys to the locks on the doors in the Premises
shall be furnished by Landlord to Tenant at the cost of Tenant, and
Tenant shall not have any duplicate keys made. All keys and passes
shall be returned to Landlord at the expiration or earlier termination
of this Lease.
5. Tenant shall refer all contractors, contractors representatives and
installation technicians for Landlord for Landlord's supervision,
approval and control before the performance of any contractural
services. This provision shall apply to all work performed in the
Building including, but not limited to installation of telephones,
telegraph equipment, electrical devices and attachments, doors,
entranceways, and any and all installations of every nature affecting
floors, walls, woodwork, window trim, ceilings, equipment and any other
physical portion of the Building. Tenant shall not waste electricity,
water or air conditioning. All controls shall be adjusted only by
Building personnel.
6. Movement in or out of the Building of furniture or office equipment, or
dispatch or receipt by Tenant of any merchandise or materials which
require the use of elevators, stairways, lobby areas, or loading dock
areas, shall be restricted to hours designated by Landlord. Tenant
must seek Landlord's prior approval by providing in writing a detailed
listing of such activity. If approved by Landlord, such activity shall
be under the supervision of Landlord and performed in the manner stated
by Landlord. Landlord may prohibit any article, equipment or any other
item from being brought into the Building. Tenant is to assume all risk
for damage to articles moved and injury to persons resulting from such
activity. If any equipment, property and/or personnel of Landlord or of
any other tenant is damaged or injured as a result of or in connection
with such activity, Tenant shall be solely liable for any and all
damage or loss resulting therefrom.
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7. All corridor doors, when not in use, shall remain closed. Tenant shall
cause all doors to the Premises to be closed and securely locked before
leaving the Building at the end of the day.
8. Tenant shall keep all electrical and mechanical apparatus owned by
Tenant free of vibration, noise and airwaves which may be transmitted
beyond the Premises.
9. Canvassing, soliciting and peddling in or about the Building or
Property is prohibited. Tenant shall cooperate and use its best efforts
to prevent the same.
10. Tenant shall not use the Premises in any manner which would overload
the standard heating, ventilating or air conditioning systems of the
Building.
11. Tenant shall not utilize any equipment or apparatus in such manner as
to create any magnetic fields or waves which adversely affect or
interfere with the operation of any systems or equipment in the
Building or Property.
12. Bicycles and other vehicles are not permitted inside or on the walkways
outside the Building, except in those areas specifically designated by
Landlord for such purposes.
13. Tenant shall not operate or permit to be operated on the Premises any
coin or token operated vending machine or similar device (including,
without limitation, telephones, lockers, toilets, scales, amusements
devices and machines for sale of beverages, foods, candy, cigarettes or
other goods), except for those vending machines or similar devices
which are for the sole and exclusive use of Tenant's employees, and
then only if such operation does not violate the lease of any other
tenant in the Building.
14. Tenant shall utilize the termite and pest extermination service
designated by Landlord to control termites and pests in the Premises.
Except as included in Basic Costs, Tenant shall bear the cost and
expense of such extermination services.
15. Tenant shall not open or permit to be opened any window in the
Premises. This provision shall not be construed as limiting access of
Tenant to any balcony adjoining the Premises.
16. To the extent permitted by law, Tenant shall not permit picketing or
other union activity involving its employees or agents in the Building
or on the Property, except in those locations and subject to time and
other constraints as to which Landlord may give its prior written
consent, which consent may be withheld in Landlord's sole discretion.
17. Tenant shall comply with all applicable laws, ordinances, governmental
orders or regulations and applicable orders or directions from any
public office or body having jurisdiction, with respect to the
Premises, the Building, the Property and their respective use or
occupancy thereof. Tenant shall not make or permit any use of the
Premises, the Building or the Property, respectively, which is directly
or indirectly forbidden by law, ordinance, governmental regulation or
order, or direction of applicable public authority, or which may be
dangerous to person or property.
18. Tenant shall not use or occupy the Premises in any manner or for any
purpose which would injure the reputation or impair the present or
future value of the Premises, the Building or the Property; without
limiting the foregoing, Tenant shall not use or permit the Premises or
any portion thereof to be used for lodging, sleeping or for any illegal
purpose.
▇-▇
▇▇
▇▇. All deliveries to or from the Premises shall be made only at times, in
the areas and through the entrances and exits designated for such
purposes by Landlord. Tenant shall not permit the process of receiving
deliveries to or from the Premises outside of said areas or in a manner
which may interfere with the use by any other tenant of its premises or
any common areas, any pedestrian use of such area, or any use which is
inconsistent with good business practice.
20. Tenant shall carry out Tenant's permitted repair, maintenance,
alterations, and improvements in the Premises only during times agreed
to in advance by Landlord and in a manner which will not interfere with
the rights of other tenants in the Building.
21. Landlord may from time to time adopt appropriate systems and procedures
for the security or safety of the Building, its occupants, entry and
use, or its contents. Tenant, Tenant's agents, employees, contractors,
guests and invitees shall comply with Landlord's reasonable
requirements thereto.
22. Landlord shall have the right to prohibit the use of the name of the
Building or any other publicity by Tenant that in Landlord's opinion
may tend to impair the reputation of the Building or its desirability
for Landlord or its other tenants. Upon written notice from Landlord,
Tenant will refrain from and/or discontinue such publicity immediately.
23. Neither Tenant nor any of its employees, agents, contractors, invitees
or customers shall smoke in any area designated by Landlord (whether
through the posting of a "no smoking" sign or otherwise) as a "no
smoking" area. In no event shall Tenant or any of its employees,
agents, contractors, invitees or customers smoke in the hallways or
bathrooms of the Building. Landlord reserves the right to designate,
from time to time, additional areas of the Building and the Property as
"no smoking" areas and to designate the entire Building and the
Property as a "no smoking" area.
C-3
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EXHIBIT D
PAYMENT OF BASIC COSTS
This Exhibit D is attached to and made a part of the Lease dated 5/26/00 by and
between MONY/BDP OFFICE I, A COLORADO LIMITED LIABILITY COMPANY ("LANDLORD") AND
INTEGRATED INFORMATION SYSTEMS, INC., A DELAWARE CORPORATION ("TENANT") for
space in the Building located at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇.
A. During each calendar year, or portion thereof, falling within the Lease Term,
Tenant shall pay to Landlord as Additional Rent hereunder Tenant's Pro Rata
Share of the amount by which Basic Costs (as defined below) for the applicable
calendar year in exceed the amount of Six and 93/100 Dollars ($6.93) per
rentable square foot of the Building (the "Expense Stop"). Prior to January 1 of
each calendar year during the Lease Term, or as soon thereafter as practical,
Landlord shall make a good faith estimate of Basic Costs for the applicable full
or partial calendar year and Tenant's Pro Rata Share of the excess costs over
the Expense Stop thereof. On or before the first day of each month during such
calendar year, Tenant shall pay Landlord, as Additional Rent, a monthly
installment equal to one-twelfth of Tenant's Pro Rata Share of Landlord's
estimate of the amount by which Basic Costs for such calendar year will exceed
the Expense Stop ("Tenant's Excess Share"). Landlord shall have the right from
time to time during any such calendar year to revise the estimate of Basic Costs
for such year and provide Tenant with a revised statement therefor (provided,
however, Landlord agrees that Landlord shall not issue a revised statement more
than twice in any calendar year), and thereafter the amount Tenant shall pay
each month shall be based upon such revised estimate. If Landlord does not
provide Tenant with an estimate of the Basic Costs and Tenant's Excess Share by
January 1 of any calendar year, Tenant shall continue to pay a monthly
installment based on the previous year's estimate until such time as Landlord
provides Tenant with an estimate of Basic Costs and Tenant's Excess Share for
the current year. Upon receipt of such current year's estimate, an adjustment
shall be made for any month during the current year with respect to which Tenant
paid Tenant's Excess Share based on the previous years estimate. Tenant shall
pay Landlord for any underpayment with the next month's payment of Additional
Rent. Any overpayment shall, at Tenant's option, be refunded to Tenant or
credited against the installment(s) of Additional Rent next coming due under the
Lease (or Base Rent if no Additional Rent is so payable by Tenant in the next
year based on Landlord's estimate of Basic Costs). Any amount paid by Tenant
based on any estimate shall be subject to adjustment pursuant to Paragraph B
below, when actual Basic Costs in excess of the Expense Stop are determined for
such calendar year.
B. As soon as is practical following the end of the calendar year during the
Lease Term but not later than May 1, Landlord shall furnish to Tenant a
statement of Landlord's actual Basic Costs for the previous calendar year. If
for any calendar year the Tenant's Excess Share collected for the prior year, as
a result of Landlord's estimate of Basic Costs is more than the actual Tenant's
Excess Share (based on the actual Basic Cost), then Landlord shall refund to
Tenant any overpayment (or at Landlord's option apply such amount against the
next Tenant Excess Share payment(s) to become due hereunder). Likewise, Tenant
shall pay to Landlord, with the following month's Additional Rent payment, any
underpayment with respect to the prior year whether or not the lease has
terminated prior to receipt by Tenant of a statement for such underpayment, it
being understood that this clause shall survive the expiration of the Lease.
C. Basic Costs shall mean all direct and indirect costs, expenses paid and
disbursements of every kind (subject to the limitations set forth below) which
Landlord incurs, pays or becomes obligated to pay in each calendar year in
D-1
39
connection with operating, maintaining, repairing, owning and managing the
Building and the Project including but not limited to, the following:
(1) All labor costs for all persons performing services required or
utilized in connection with the operation, repair, replacement and
maintenance of and control of access to the Building and the Project,
including but not limited to amounts incurred for wages, salaries and
other compensation for services, professional training, payroll, social
security, unemployment and other similar taxes, workers' compensation
insurance, training, disability benefits, pensions, hospitalization,
retirement plans, group insurance or any other similar or like expenses
or benefits.
(2) All management fees (not to exceed 3% of gross rental during the lease
term), the cost of equipping and maintaining a management office at the
Building not to exceed 1,000 rentable square feet at marketable rate
rent, accounting services, legal fees not attributable to leasing and
collection activity, and all other administrative costs relating to the
Building and the Property.
(3) All Rent and/or purchase costs of materials, supplies, tools and
equipment used in the operation, repair, replacement and maintenance
and the control of access to the Building and the Property.
(4) All amounts charged to Landlord by contractors and/or suppliers for
services, replacement parts, components, materials, equipment and
supplies furnished in connection with the operation, repair,
maintenance, replacement and control of access to any part of the
Building, or the Property generally, including the heating, air
conditioning, ventilating, plumbing, electrical, elevator and other
systems and equipment of the Building and the garage. At Landlord's
option, major repair items may be amortized over a period of up to five
(5) years or largest period permitted.
(5) All premiums and deductibles paid by Landlord for fire, flood and
extended insurance coverage, earthquake and extended coverage
insurance, liability and extended coverage insurance, Rent loss
insurance, elevator insurance, boiler insurance and other insurance
customarily carried from time to time by landlords of comparable office
buildings or required to be carried by Landlord's mortgagee.
(6) Charges for all utilities, including but not limited to water,
electricity, gas and sewer, but excluding those electrical charges for
which tenants are individually responsible.
(7) "TAXES", which for purposes hereof, shall mean (a) all real estate
taxes and assessments on the Property, the Building or the Premises,
and taxes and assessments levied in substitution or supplementation in
whole or in part of such taxes, (b) all personal property taxes for the
Building's personal property, including license expenses, (c) all
sales, use or other tax, excluding state and/or federal income tax now
or hereafter imposed by any governmental authority upon Rent received
by Landlord, (e) all other taxes, fees or assessments now or hereafter
levied by any governmental authority on the Property, the Building or
its contents or on the operation and use thereof (except as relate to
specific tenants), and (f) all costs and fees incurred in connection
with seeking reductions in or refunds in Taxes including, without
limitation, any costs incurred by Landlord to challenge the tax
valuation of the Building or Property, but excluding income taxes.
Estimates of real estate taxes and assessments for any calendar year
during the Lease Term shall be determined based on Landlord's good
faith estimate of the real estate taxes and assessments. Taxes and
assessments hereunder are those accrued with respect to such calendar
year, as opposed to the real estate taxes and assessments paid or
payable for such calendar year. For purposes of this Lease, any special
assessments shall be deemed payable in such maximum number of
installments as is permitted by law, whether or not actually so paid,
and the taxes for the year 2000 shall be set as though the Building is
fully completed and assessed for the entire year 2000.
D-2
40
(8) All landscape expenses and costs of repairing, resurfacing and striping
of the parking areas and garages of the Property, if any.
(9) Cost of all maintenance service agreements, including those for
equipment, alarm service, window cleaning, drapery or mini-blind
cleaning, janitorial services, metal refinishing, pest control,
landscaping and any parking equipment.
(10) Cost of all other repairs, replacements and general maintenance of the
Property and Building neither specified above nor directly billed to
tenants, including the cost of maintaining all interior Common Areas
including lobbies, multi-tenant hallways, restrooms and service areas.
(11) The amortized cost of capital improvements made to the Building or the
Property which are (a) for the purpose of reducing operating expense
costs or otherwise improving the operating efficiency of the Property
or Building ("Cost Savings Improvements"); or (b) required to comply
with any laws, rules or regulations of any governmental authority
enacted or promulgated after the Commencement Date, including any new
interpretation of any existing law, rule or regulation issued after the
Commencement Date ("Required Capital Improvement"). The cost of such
Cost Savings Improvements and Required Improvements shall be amortized
over a period of five (5) years or the useful life of said Required
Capital Improvement as determined by GAAP, whichever is longer, and
shall, at Landlord's option, include interest at 8%. Only the amount of
such yearly amortization shall be included in Basic Costs for a given
year.
(12) Any other charge or expense of any nature whatsoever which, in
accordance with general industry practice with respect to the operation
of a first class office building, would be construed as an operating
expense.
D. "Operating Expenses" shall not include (a) costs of work, including painting
and decorating and tenant improvement work, which Landlord performs for any
tenant in the Building which is not for the benefit of all or most tenants of
the Building; (b) costs of repairs or other work occasioned by fire, windstorm
or other insured casualty to the extent of insurance proceeds received by
Landlord and provided, that Landlord shall have obtained all insurance in the
form and amounts herein required hereunder; (c) leasing commissions, advertising
expenses, and other costs incurred in leasing space in the Building; (d) costs
of repairs or rebuilding necessitated by condemnation; (e) any interest on
borrowed money or debt amortization on Landlord's Mortgages on the Building; (f)
depreciation on the Building; (g) wages, salaries, fees, and fringe benefits
paid to individuals who are above the level of building manager or who are
executive personnel or officers or partners of Landlord (h) other than as
provided in Section C above, any charge for depreciation of the Building or
equipment and any interest or other financing charge; (i) any charge for
Landlord's income taxes, excess profit taxes, franchise taxes, or similar taxes
on Landlord's business; (j) all costs for which Tenant or any other tenant in
the Building is being charged directly (including, but not limited to excess
usage charges); (k) the costs of correcting defects in the construction of the
Building, or in the building equipment, due to defective or illegal
construction; (l) the cost of any repair made by Landlord because of the total
or partial destruction of the Building, or the condemnation of a portion of the
Building; (m) the cost of any items for which Landlord is reimbursed by
insurance or otherwise compensated by parties other than tenants of the Building
or the cost of any increase in insurance premiums to the extent that such
increase is solely and directly attributable to the use, occupancy or activity
of another tenant in the Building; (n) other than Required Capital Improvements
or Cost Savings Improvements, the cost of any additions or capital improvements,
repairs or replacements to the Building subsequent to the date of original
construction; (o) the cost of any removal, treatment or abatement or asbestos or
any other hazardous substance or gas in the Building or on Tenant's Premises
(however, to the extent such asbestos or hazardous substance results from
Tenant's or its agents' actions or inactions, such costs shall be reimbursed to
Landlord by Tenant as Tenant's direct expense); (p) any operating expenses
representing an amount paid to a related corporation, entity, or person which is
in excess of the amount which would be paid in the absence of such relationship;
(q) the cost of tools and equipment used initially in the construction of the
Building; (r) the cost
D-3
41
of alterations of space in the Building lease to other tenants; (s) the cost of
overtime or other expense to Landlord in curing its defaults or performing work
expressly provided in this Lease to be borne at Landlord's expense; (t) ground
rent or similar payments to ground lessor; (u) late payments, charges and
penalties; (v) costs associated with the operation of the business of the
corporation which constitutes Landlord as the same or distinguished from the
costs of operation of the Building; (x) costs (including in connection therewith
all attorneys' fees and costs of settlement, judgments and/or payments in lieu
thereof) arising from claims, disputes or potential disputes in connection with
potential or actual claims litigation or arbitration pertaining to Landlord
and/or the Building, other than such claims or disputes respecting any services
or equipment used in the operation of the Building by Landlord, the cost of
which is included in Basic Costs; and (z) the wages and benefits of any employee
who does not devote substantially all of his or her employed time to the
Building unless such wages and benefits are prorated to reflect time spent on
operating and managing the Building. It is understood that Basic Costs shall be
reduced by all cash discounts, trade discounts, or quantity discounts received
by Landlord or Landlord's managing agent in the purchase of any goods,
utilities, or services in connection with the operation of the Building.
Landlord shall make payments of goods, utilities and services in a timely manner
to obtain the maximum possible discount. In the calculation of any expenses
hereunder, it is understood that no expense shall be charged more than once.
Landlord shall use its best efforts to effect any equitable proration of bills
for services rendered to the Building and to any other property owned by
Landlord. Landlord agrees to keep books and records showing the Basic Costs in
accordance with a system of accounts and accounting practices consistently
maintained on a year-to-year basis.
E. If the Building and the other buildings Landlord operates in conjunction
therewith are not at least one hundred percent (100%) occupied, in the
aggregate, during any calendar year of the Lease Term or if Landlord is not
supplying services to at least one hundred percent (100%) of the Approximate
Rentable Area of the Building and such other buildings at any time during any
calendar year of the Lease Term, actual Basic Costs for purposes hereof shall,
at Landlord's option, be determined as if the Building and such other buildings
had been one hundred percent (100%) occupied and Landlord had been supplying
services to one hundred percent (100%) of the Approximate Rentable Area of the
Building and such other buildings during such year. If Tenant pays for its Pro
Rata Share of Basic Costs based on increases over a Expense Stop and Basic Costs
for any calendar year during the Lease Term are determined as provided in the
foregoing sentence, Basic Costs for such Expense Stop shall also be determined
as if the Building and such other buildings had been one hundred percent (100%)
occupied and Landlord had been supplying services to one hundred percent (100%)
of the Approximate Rentable Area of the Building; and such other buildings.
F. If Tenant questions the amount of Basic Costs or Tenant's Excess Share as
shown by a year-end statement, Tenant shall notify Landlord. Tenant shall have
120 days after giving notice (i) to hire, at Tenant's sole expense, an
accredited member of the Colorado Society of CPAs or (ii) direct a Tenant
employed by CPA (either "Tenant's Accountants"), to examine Landlord's books and
records for the purpose of verifying the accuracy of the statement. If Tenant's
Accountants determine that an error has been made, notice describing the error
in reasonable detail must be given to Landlord and if such notice is given,
Landlord and Tenant shall endeavor to agree upon the matter within the following
90 days. All information disclosed to Tenant or Tenant's Accountants in
connection with any such review shall be kept confidential by Tenant and
Tenant's Accountants and shall not be disclosed or used by Tenant or Tenant's
Accountants for any reason other than to verify information set forth in the
statement. Notwithstanding the pendency of any dispute over any particular
statement, Tenant shall continue to pay Landlord the amount of the adjusted
monthly installments of Additional Rent based upon the statement until the
dispute is resolved. Delay by Landlord in submitting any statement for any Lease
Year shall not affect the provisions of this Section or constitute a waiver of
Landlord's rights set forth herein for that or any subsequent Lease Year. In the
event that any audit conduct by Tenant, pursuant to the terms hereof, discloses
that Landlord has overstated the payment of Tenant's Excess Share required from
Tenant as set forth on the then applicable statement by 3% or more, then
Landlord will reimburse (or credit against subsequent rent payments) Tenant (in
additional to the excess Additional Rent
D-4
42
previously paid by Tenant as hereinabove provided) for the actual reasonable
cost of the audit within 30 days after Tenant provides Landlord with a statement
of the audit cost.
IN WITNESS WHEREOF, Landlord and Tenant have executed this exhibit as of the day
and year first above written.
WITNESS/ATTEST LANDLORD:
MONY/BDP Office, L.L.C., a Colorado
Limited Liability company
TRANSWESTERN INVESTMENT COMPANY,
L.L.C. AS AGENT
By: /s/ ▇▇▇▇▇▇▇▇ ▇. Puemo By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. Puemo Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Admin. Associate Title: SENIOR VICE PRESIDENT
WITNESS/ATTEST TENANT:
Integrated Information Systems, Inc.,
a Delaware Corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Associate General Counsel Title: Vice President and Corp. Counsel
D-5
43
EXHIBIT E
WORK LETTER
This Work Letter Agreement supplements and is hereby incorporated in that
certain lease (hereinafter referred to as the "Lease") dated and executed
concurrently herewith by and between MONY/BDP Office I, L.L.C., a Colorado
Limited Liability company (hereinafter referred to as "Landlord") and Integrated
Information Systems, Inc., a Delaware Corporation (hereinafter referred to as
"Tenant") with the terms defined in the Lease to have the same definition where
used herein.
1. The Premises are leased to Tenant in their "AS IS" condition, except
for those improvements as defined in Exhibit "E-1" (the "Base Building Shell
and Core Condition") and this Work Letter Agreement is intended to set forth the
obligations of Landlord and Tenant with respect to the preparation of the
Premises for Tenant's occupancy. All improvements described in this Work Letter
Agreement to be constructed in and upon the Premises are hereinafter referred to
as the "Tenant Improvements." It is agreed that construction of the Tenant
Improvements will be completed in accordance with the procedures set forth in
this Work Letter Agreement.
2. Tenant shall devote such time in consultation with Landlord or
Landlord's agent as may be required to provide all necessary information to
Landlord or Landlord's agent as Landlord deems necessary in order to enable
Landlord to complete, and obtain Tenant's written approval of, the final layout,
drawings, and plans for the Premises. If Tenant fails to furnish any such
information, or fails to approve OR DISAPPROVE layout, drawings, or plans within
five (5) Business Days after written request, Landlord may, at its election, be
discharged of its obligations under this Work Letter Agreement, but the same
shall not affect or diminish Tenant's duties and obligations set forth in the
Lease, and Tenant agrees to pay on demand all costs and expenses and increased
unit prices incurred by Landlord on account of Tenant's failure to furnish such
information and approved drawings within such prescribed times. All of
Tenant's plans and specifications shall be subject to Landlord's consent, the
granting or denial of which shall be in Landlord's REASONABLE discretion.
3. Space planning and construction drawings, and when deemed necessary
by Landlord, engineering drawings, shall be prepared by Landlord's architect.
Unless otherwise provided in Exhibit "E-2" (the "Tenant Improvement Allowance"),
Tenant shall pay for additional space planning services beyond those specified
above, for Landlord's standard construction and engineering drawings covering
Landlord's Building Standard materials as defined in Exhibit "E-3" (the
"Landlord's Building Standard Materials"), and for any nonstandard construction
and engineering drawings, or any additional costs for drawings occasioned by
special installation other than Building Standard. Tenant may pay for such
services out of the Allowance, if any, provided in Exhibit "E-2". Tenant shall
furthermore be responsible for the design, function and maintenance of all
special improvements, whether installed by Landlord at Tenant's request or
installed by Tenant with Landlord's prior written approval. Tenant shall use the
Building Standard materials unless other materials are expressly approved in
writing by Landlord.
4. Prior to commencing any construction of Tenant Improvements,
Landlord shall submit to Tenant a written estimate setting forth the anticipated
cost of the Tenant Improvements (excluding any costs which may be specified
herein or in Exhibit "E-2" as being borne by Landlord), including but not
limited to labor and materials, contractor's fees, Landlord's construction
management fees not to exceed 2% of total construction costs, permit fees, space
planning, initial space planning drawings (to include one revision),
construction, and engineering drawing costs.
E-1
44
Within five (5) Business Days Tenant shall either notify Landlord in writing of
its approval of the cost estimate, or specify its objections thereto and
desired changes to the proposed Tenant Improvements. In the event Tenant
notifies Landlord of such objections and desired changes, Tenant shall work with
Landlord to reach acceptable plans and cost estimate; provided, however, if
Tenant fails to give written approval of a cost estimate within ten (10)
Business Days following delivery to Tenant of the original cost estimate, Tenant
shall be chargeable with one day of Delay for each day thereafter until Tenant
provides to Landlord in writing its approval of a cost estimate.
5. In the event Landlord's estimate and/or the actual cost of
construction shall exceed the Allowance, (as defined in Exhibit "E-2" attached
hereto), if any (such amounts exceeding the Allowance being herein referred to
as the "Excess Costs"), Tenant shall pay to Landlord such Excess Costs PROVIDED,
HOWEVER, THAT LANDLORD SUBMITS A DETAILED, ITEMIZED SUMMARY OF THE EXCESS COSTS,
as follows:
(a) Tenant shall deliver to Landlord, with its approval of the
Landlord's estimate, and in any event prior to commencement of
construction, an amount equal to fifty percent (50%) of the Excess
Costs as then estimated by Landlord.
(b) After substantial completion of the Tenant Improvements,
but prior to occupancy of the Premises by Tenant, Tenant shall pay to
Landlord on demand an amount which when added to the initial payment
described in subparagraph (a) above equals ninety percent (90%) of the
Excess Costs as then estimated by Landlord.
(c) As soon as the final accounting can be prepared and
submitted to Tenant, Tenant shall pay on demand to Landlord the entire
balance of the Excess Costs based upon the actual cost of construction.
The statements of costs submitted to Landlord by Landlord's contractors AND
ACTUALLY PAID OR TO BE PAID BY LANDLORD shall be conclusive for purposes of
determining the actual cost of the items described therein. The amounts payable
hereunder constitute other rent payable pursuant to the Lease, and the failure
to timely pay same constitutes an event of default under the Lease.
6. If Tenant shall request any change, addition or alteration in the
working drawings, after approval by Landlord and Tenant, Landlord shall have
such working drawings prepared, and Tenant shall promptly reimburse Landlord for
the cost thereof. Promptly upon completion of the revisions, Landlord shall
notify Tenant in writing of the cost which will be chargeable to Tenant by
reason of such change, addition or deletion. Tenant shall, within three (3)
Business Days, notify Landlord in writing whether it desires to proceed with
such change, addition or deletion. In the absence of such written authorization,
Landlord shall have the option to continue work on the Premises disregarding the
requested change, addition or alteration, or Landlord may elect to discontinue
work on the Premises, in which event Tenant shall be chargeable with a Delay in
completion of the Premises resulting therefrom in accordance with Paragraph 3(a)
of the Lease. In the event such revisions result in a higher estimate of the
cost of construction, Tenant shall pay to Landlord an amount sufficient to
provide Landlord with the above described fifty percent (50%) (or if applicable
ninety percent (90%)) payment toward Excess Costs.
7. Following approval of the plans and the payment by Tenant of the
required portion of the Excess Costs, if any, Landlord shall cause the Tenant
Improvements to be constructed in accordance with the approved plans. Unless
otherwise specifically provided in the approved plans, all material used in the
construction of the Tenant's Improvements shall be of such quality as determined
by the Landlord's architect.
▇-▇
▇▇
▇▇▇▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇:
MONY/BDP Office I, L.L.C., a Colorado
Limited Liability Company
TRANSWESTERN INVESTMENT COMPANY, L.L.C.
AS AGENT
By: /s/ ▇▇▇▇▇▇▇▇ ▇. Puemo By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. Puemo Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Admin Associate Title: SENIOR VICE PRESIDENT
WITNESS/ATTEST TENANT:
Integrated Information Systems, Inc.,
a Delaware Corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Associate General Counsel Title: VP & Corp. Counsel
E-3
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EXHIBIT E-1
BASE BUILDING SHELL AND CORE CONDITION
SHELL and CORE CONSTRUCTION
Site Work and Earthwork
Sanitary Sewer, Domestic Water Fire Line and Storm Sewer to the building
Landscaping and irrigation system
Parking and drives, including parking lot lighting
Exterior building and lighting
Exterior building address signs
Concrete
Foundation system
Floor slab, unfinished concrete
Building exterior is masonry construction with EIFS (Extension
Insulation and Finish System) accents
Common Areas
Two-story entrance lobby entrance, from west and east parking areas
One (1) passenger elevator
Two restrooms per floor are provided per building code with floor mount
tank-style toilets, in counter sinks with wall mounted mirrors above,
and with building standard ceramic tile flooring.
Metals
Structural steel frame with cast-in-place floors and roof deck
Thermal and Moisture Protection
Ballasted EPDM 45 mil. Synthetic rubber roof with a 10 year warranty
R-19 ISO roof insulation
Doors, Windows, Glass
6'-8" and 6'-0" tall, tinted, low E glass in anodized aluminum frames
Mini-blinds, 1" Levolor type, Riviera style, almond color.
Finishes
Exterior walls insulated and unfinished
First floor ceiling height of 12 feet, second floor ceiling height of
10 feet
Mechanical
ELO fire sprinkler system on standard grid with heads at standard
elevations
Rooftop mounted, 2-130 ton packaged Trane Heating Venting & Air
Conditioning units, 1 ton per 330 rsf.
The main lateral trunk lines shall be installed for future connection
of the fan powered and VAV boxes.
Exterior fan powered heating, venting and air conditioning boxes, as
well as interior pinch down, variable air volume boxes furnished to
accommodate Tenant's Construction Drawings, in compliance with
standards set forth in Section 7.A.(2). The cost to install and
distribute such boxes shall be at Tenant's expense and shall be
included in the Tenant Improvements.
Plumbing
6" sanitary sewer line under the slab on grade the length of the
buildings
1-1/2" copper domestic water supply line within the bar joists running
the length of the buildings
Wet stack columns in the north and south ends of the wings
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▇▇▇▇ building electrical service, main disconnect of 3,000 amps,
480/277, 3 phase service to the main electrical room.
Secondary electrical service from the electrical rooms located
in the core area of the south wings. Each tenant will receive
its pro-rata share of the total 3,000 amp service, 5 ▇▇▇▇▇ per
s.f. electrical capacity (connected load) available for tenant
use, excluding lighting
Telephone service by US WEST to the main telephone exterior panel,
served by one (1) four inch (4") conduit from the street
telephone pedestal, adjacent to the Nome Street, north of the
building's main entrance. 900 pair copper service is
provisioned, with 600 pair activated and 300 in reserve.
Fiber Optic Service to be provided by US WEST from their existing
fiber on the south side of Arapahoe Road to the north on Nome
Street telephone pedestal. Landlord has installed three (3)
four inch (4") conduits from to the north wing telephone room
to the Nome Street outside pedestal. Additional service
providers will be granted access to the building to provide
additional tenant fiber optic service.
Special Improvements
Magnetic card key access
HVAC controls from dial up telephone modem
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EXHIBIT E-2
TENANT IMPROVEMENT ALLOWANCE
Landlord agrees to provide Tenant an allowance (the "Allowance") of $21.50 per
square foot of Rentable Area in the Premises (which for purposes hereof is
agreed to be 11,138 square feet), being the total sum of Two Hundred Thirty-nine
Thousand Four Hundred Sixty-seven and 00/00 Dollars ($239,467.00) toward the
cost of the Tenant Improvements. Tenant shall not be entitled to any credit for
any amount not applied to the cost of the Tenant Improvements. In the event the
Allowance or Additional Allowance set forth below shall not be sufficient to
complete the improvements contemplated by the approved plans, Tenant shall pay
the Excess Costs as prescribed in Exhibit "E".
In addition to the Allowance set forth herein, Landlord shall agree to provide
Tenant with an additional allowance (the "Additional Allowance") of up to $3.50
per square foot of the Rentable Area in the Premises, being the total sum of
Thirty-eight Thousand Nine Hundred Eighty-three and 00/100's Dollars
($38,983.00) towards the cost of the Tenant Improvements. Tenant may request all
or a portion of the Additional Allowance by providing Landlord with prior
written notice at any time within six (6) months of the Commencement Date of
this Lease. Tenant shall not be entitled to subsequently request payment of any
amount of such Additional Allowance that is not initially requested. Landlord
shall agree that such Additional Allowance utilized by Tenant shall be amortized
either: a.) over a 60 month period (payable rent period), or b.) over a period
equal to the number of months remaining in the Lease Term, as of Tenant's notice
date herein above. The Additional Allowance shall be amortized at an interest
rate of eleven percent (11%) per year, on a fully amortizing basis, with
payments made at the beginning of the payment period. Landlord shall agree to
revise the monthly Base Rent amounts set forth herein to include the monthly
amortization amount, which shall be payable for the applicable period of the
Lease Term. Tenant shall not be required to provide Landlord with any additional
security under the Letter of Credit, but shall agree to provide Landlord with an
additional Security Deposit amount equal to one month's Additional Allowance
payment.
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▇▇▇▇▇▇▇▇'▇ ▇▇▇▇▇▇▇▇ STANDARD MATERIALS
The following outlines the building standard materials that are to be utilized
in the construction of all Tenant Improvements and all Tenant Improvement work
shall be in accordance with Exhibit D, the Work Letter Agreement.
GENERAL:
- Demising wall is full height to structure and gypsum board above ceiling is
fire-taped only.
- Interior doors are building standard 3'0" x 9'10" on first floor and 3'0"-x
8'-10" on the second floor and selected white birch stained flush doors in
painted, full welded hollow metal frames with building standard latchset
hardware.
- 1 door per 200 square feet of office area.
- Interior walls are gypsum board to ceiling with painted 2 coats of interior
latex.
- 1 lineal foot of wall per 9 square feet of office area.
- Sound insulation ▇▇▇▇▇ in inter-tenant demising walls at office area only
to above ceiling line.
- Suspended acoustical panel ceiling at 10'-0" on the first floor and 9'-0"
on the second floor, with 2'x4' grid and "Second Look II", scored,
tegular edge lay-in panels.
- Lighting is 2'x 4' 3 lamp recessed fluorescent deep cell parabolic
troffers.
- 1 fixture per 80 square feet of office area.
- Electrical outlets are provided at 2 per office area.
- Telephone outlet boxes are provided at 1 per office or room.
- Flooring is glued-down 26 oz. level-loop carpet: Philadelphia "Volunteer",
"Winchester", or "▇▇▇▇▇▇▇".
- Work area flooring will be: ▇▇▇▇▇▇▇▇▇ "Standard Excalon" or
standard carpet.
- Space is fully sprinklered at standard layout. Sprinkler heads are
semi-recessed pendant type to meet code for office layout.
- Mini-blinds, 1" Levolor type, Riviera style, almond color.
STANDARD UPGRADES: (May also impact schedule)
- Coffee bar cabinets: Building standard cabinets will be: LJE full overlay
plastic laminate in ▇▇▇▇ color. Countertop laminate color is Tenant choice.
- Coffee bar plumbing including sinks and disposals.
- Sound insulation in interior office demising walls.
NON-STANDARD ITEMS: (May also impact schedule)
- Special provisions due to hazardous materials.
- Delivery or dock doors.
- Shelving.
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50
EXHIBIT F
ADDITIONAL PROVISIONS
36. RIGHT OF FIRST OFFER. Landlord hereby grants to Tenant a right of first
offer (the "Right of First Offer") to lease an additional 5,644 rsf,
located on the first floor of the south wing of the Project. The
space (the "Right of First Offer Space") shall be made available on the
following basis:
a. Tenant shall have SEVEN (7) Business Days after being notified by
Landlord, in writing, of Landlord's desire to lease the Right of First Offer
Space (which notice is hereinafter referred to as "Landlord's Notice") within
which to notify Landlord, in writing, if Tenant desires to exercise its Right of
First Offer as to such space. Tenant's Right of First Offer hereunder shall be
subject and subordinate to all leases, rights of extension, expansion, or first
offer or refusal as to the Right of First Offer Space in favor of other tenants
in the Building in existence as of the date of this Lease. Landlord shall have
the right to determine the exact square footage of the Right of First Offer
Space at the time such space or any portion thereof is offered to Tenant
pursuant to the provisions of this Paragraph.
b. Such space shall be offered to Tenant upon the terms and conditions
and at the rental rate Landlord would quote to third parties for the Right of
First Offer Space, if it were to become available for leasing for a lease term
scheduled to commence at the time of the addition of the Right of First Offer
Space, but in no event shall the rental rate be less than the rent which Tenant
is then paying. Such terms and conditions may include, among other things,
escalations and pass-throughs. If Tenant exercises its right to lease the Right
of First Offer Space anytime during the first six (6) months of the initial
lease term, such space shall be made available at the same rental rate as the
initially leased Premises, except that Landlord's contributions, including but
not limited to tenant improvement allowances and real estate commissions, shall
be adjusted on a pro-rata basis to reflect the remaining time period in the
initial lease term.
c. If Tenant does not notify Landlord within such SEVEN (7) day period,
it shall be conclusively presumed that Tenant does not desire to exercise its
Right of First Offer, Landlord shall be free to lease such space to anyone whom
it desires, and Tenant shall have no further rights with respect to such space.
d. Except as set forth in Section 36(b), if Tenant elects to add the
Right of First Offer Space to the Lease, Tenant will accept such space in its
"as is" condition without any remodeling work or tenant improvement work being
performed by Landlord, except as may be provided in Landlord's Notice. All costs
in connection with preparing the Right of First Offer Space for occupancy by
Tenant, including but not limited to costs of compliance with all applicable
laws, codes, or ordinances, shall be borne by Tenant.
e. If Landlord has entered into lease negotiations with a third party
for space which is greater than but includes the Right of First Offer Space,
then, in order to exercise the Right of First Offer granted herein, Tenant shall
(i) be obligated to take all the space the third party would lease under said
negotiations, and (ii) be obligated to extend the Lease Term for a period of
time from the date of exercise of the Right of First Offer comparable to the
length of time that the third party was willing to lease said space.
Notwithstanding the foregoing, Tenant must take all of the Right of First Offer
Space offered by Landlord to Tenant at any particular time and may not elect to
lease a portion thereof.
f. All notifications contemplated by this Paragraph, whether from
Tenant to Landlord, or from Landlord to Tenant, shall be in writing and shall be
given in the manner provided in the Lease.
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51
g. Tenant's right to exercise the Right of First Offer shall be
conditioned on: (i) Tenant not being in default (beyond any applicable cure
period) under the Lease at the time of the exercise of the Right of First Offer
or as of the date on which Tenant's occupancy of the Right of First Offer Space
is scheduled to commence; (ii) Tenant not having subleased more than twenty-five
percent (25%) of the Premises or having vacated more than 25 percent (25%) of
the Premises as of the date on which Tenant's occupancy of the Right of First
Offer Space is scheduled to commence; and (iii) there being at least two (2)
years remaining in the initial Lease Term. Notwithstanding the foregoing, if
there is less than two (2) years remaining in the initial Lease Term but the
Right of First Offer would otherwise be available to Tenant hereunder and an
option to extend the initial Lease Term is then available to Tenant under the
other provisions of this Lease, Tenant shall have the right to exercise its
Right of First Offer provided that Tenant simultaneously exercises its option to
extend the initial Lease Term.
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52
EXHIBIT G
RENEWAL OPTION
Tenant shall have an option to extend the Lease for one (1) additional
consecutive term, consisting of five (5) years. In order to exercise such
option(s), Tenant shall notify Landlord in writing at least six (6) months prior
to the expiration of the respective lease term(s) of its election to exercise
the option, upon which time Landlord shall submit in writing within 30 days
thereafter a proposal for the then current Market Base Rental Rate (per rentable
square foot per annum) for the extended term. Tenant shall have thirty (30) days
from the receipt of said notice to (i) NEGOTIATE IN GOOD FAITH WITH LANDLORD AND
accept the NEGOTIATED Base Rental Rate in writing to Landlord or (ii) elect not
to extend. If Tenant elects not to extend or fails to timely exercise its
options, time being of the essence, the options shall automatically terminate
and be of no further force and effect and this Lease shall terminate upon
expiration of the then Lease terms. Any such extension shall be upon all of the
terms, conditions, and covenants of this Lease except as to (i) the amount of
Base Rent, which shall be determined as set forth herein, (ii) other than as
remain applicable under this Lease, options to extend, expand or rights of
refusal, which shall not be applicable, and (iii) Tenant Allowance or other
economic concessions which shall not be applicable to the extension term. As
used herein, "Market Base Rental Rate" shall mean the then Base Rental Rate for
comparable first class multi-tenant office buildings of comparable size,
location and age, with comparable tenants leasing comparable amounts of space,
in the County of Arapahoe, Colorado, at such time, taking into account the
following factors (1) rent per rentable square foot; (2) operating expenses and
real estate tax payments; (3) current rental escalators; and (4) rental
concessions, including tenant improvement allowances, if any, as applicable to
market renewals of leases.
This option to extend may not be exercised and the Lease shall not be extended
if Tenant is in default which default is not cured within any applicable cure
periods or if this Lease has been sublet or assigned other than to an Affiliated
Entity as set forth in Paragraph 13(a) hereof or as permitted in Paragraph 13(d)
hereof. Furthermore, time is of the essence hereof, any failure of Tenant to
give any notice required hereunder within the required time period shall render
this option null and void.
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' EXHIBIT H
COMMENCEMENT LETTER
Date
Tenant
Address
Re: Commencement Letter with respect to that certain Lease dated by and
between as Landlord and , a(n) as
Tenant for an Approximate Rentable Area in the Premises of square
feet on the floor of the Building located at , , .
Dear :
In accordance with the terms and conditions of the above referenced Lease,
Tenant hereby accepts possession of the premises and agrees as follows:
The Commencement Date of the Lease is ;
The Termination Date of the Lease is .
Landlord agrees to complete the work in the Premises identified in the punchlist
jointly prepared by Landlord and Tenant dated .
Please acknowledge your acceptance of possession and agreement to the terms set
forth above by signing all three (3) copies of this Commencement Letter in the
space provided and returning two (2) fully executed copies of the same to my
attention.
Sincerely,
XXXXXXXXX
Property Manager
Agreed and Accepted:
TENANT:
By:
Name:
Title:
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54
EXHIBIT I
STANDARD PARKING AGREEMENT
Landlord shall make available to Tenant at the commencement of the term
of this Lease the use of up to fifty-six (56) (5 per 1,000 rentable square
feet), of the Building's parking spaces (the "Spaces") in the Building parking
lot (the "Parking Lot") on an unreserved basis. AT NO COST TO TENANT DURING THE
LEASE TERM OR ANY EXTENSION THEREOF.
It is hereby agreed and understood that Landlord's sole obligation
hereunder is to make the Spaces available to Tenant. Tenant's right to the use
of such Spaces shall be subject to compliance with the rules and regulations
promulgated from time-to-time by the manager of such Parking Lot, and shall be
subject to termination for violation of any such rules or regulations upon prior
notice from such Landlord manager. Landlord shall have no liability whatsoever
for any property damage, loss or theft and/or personal injury which might occur
as a result of or in connection with the use of the Spaces by Tenant, its
employees, agents, servants, customers, invitees and licensees, and Tenant
hereby agrees to indemnify and hold Landlord harmless from and against any and
all costs, claims, expenses, and/or causes of action that Landlord may incur in
connection with or arising out of Tenant's use of the Spaces.
The failure, for any reason, of Landlord to provide or make available
the Spaces to Tenant or the inability of Tenant to utilize these Spaces shall
under no circumstances be deemed a default by Landlord pursuant to the terms of
the Lease or give rise to any claim or cause of action by Tenant against
Landlord, the same being hereby expressly waived by Tenant. Tenants sole remedy
for such failure shall be the equitable abatement of Tenant's parking rental
fee.
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55
EXHIBIT J
LETTER OF CREDIT
Letter of Credit. As security for the performance by Tenant of all of
the terms, covenants, and conditions required to be performed by it hereunder,
Tenant agrees to deposit with Landlord on or before execution and delivery of
this Lease by Tenant an irrevocable, transferable demand letter of credit in the
amount of One Hundred Eighty Thousand and 00/100's Dollars ($180,000.00) in
substantially the form attached hereto as Exhibit "K" issued by a bank
reasonably acceptable to Landlord (the "Letter of Credit"). The Letter of Credit
shall automatically renew every twelve months for a period through and including
the last day of the thirty-sixth (36th) calendar month of the Lease Term. If
after the last day of the twelfth (12th) calendar month of the Lease Term, no
demand has been previously made and Tenant is not in default of this Lease, the
then existing Letter of Credit shall be surrendered by Landlord provided a new
Letter of Credit is delivered to Landlord in an amount which is Sixty Thousand
and 00/100's Dollars ($60,000.00) less than the face value of such prior Letter
of Credit. The Letter of Credit shall every twelve (12) months thereafter, until
expiration of the Lease Term, continue to be replaced by a new Letter of Credit
in an amount which is Sixty Thousand and 00/100's Dollars ($60,000.00) less than
the face value of the then current Letter of Credit. Provided however that if an
event of default has occurred anytime during the first thirty-six (36) months of
the initial Lease Term, a Letter of Credit in the amount of Sixty Thousand and
00/100's Dollars ($60,000.00) shall remain in effect until the expiration of the
Lease Term. Landlord may make a demand upon the Letter of Credit if Tenant is in
default of the Lease, which default has not been cured within any applicable
cure period, as defined under Section 22 of the Lease. If the cure period
extends beyond the expiration date of the Letter of Credit or if Tenant fails to
renew the Letter of Credit or Tenant has not delivered to Landlord an extended
Letter of Credit or confirmation of the renewal of the Letter of Credit, as
applicable, within five (5) business days of the expiration date, then Landlord
may make demand upon the Letter of Credit and hold such sums as a security
deposit, to be used, applied, or retained for the payment of any unpaid rent or
for any other amount which Landlord may be required to expend by reason of the
default of Tenant, including any damages or deficiency in the reletting of the
Premises or any attorney's fees associated therewith, regardless of the whether
the accrual of such damages or deficiency occurs before or after an eviction.
Furthermore, if for any reason the Letter of Credit is dishonored or cannot
reasonably be drawn upon (including any dissolution or insolvency of the
issuer), then Tenant agrees within ten (10) days of receipt of written request
from the Landlord to deliver a new letter of credit meeting the standards set
forth herein and upon receipt thereof, the previous letter of credit shall be
delivered to Tenant. Tenant's failure or the bank's refusal to renew a Letter of
Credit or obtain or deliver a new letter of credit, if applicable, within the
time frames set forth herein, shall be deemed an automatic default with no
obligation of Landlord to give notice or opportunity to cure.
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EXHIBIT K
FORM OF DEMAND LETTER OF CREDIT
(Letterhead of Issuing Bank)
, 2000
To: MONY/BBP Office I, L.L.C.
c/o Transwestern Investment Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Asset Manager
Re: MONY/BDP Office I, L.L.C. Lease
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies/Gentlemen:
We hereby establish our Irrevocable Demand Transferable Letter of
Credit and authorize you to draw on us at sight for the account of __________
_______________ up to the aggregate amount of _____________________ Dollars
($_________).
Funds under this Letter of Credit are available to the holder hereof as
follows: Any or all of the sums hereunder may be drawn down at any time and from
time to time from and after the date hereof to and including the Expiration Date
(as hereinafter defined) by the holder hereof, or its authorized agent, when
accompanied by this Letter of Credit and a written draft signed by an officer,
_____________ ("Holder"). Drafts under this Letter of Credit must be marked:
"Pay to Holder $_____________, which represents a full draw on Letter of Credit
No. ___________" and must be presented at our office not later than the
Expiration Date at 5:00 p.m.
This Letter of Credit is transferable in its entirety.
This Letter of Credit shall expire on ____________ (the "Expiration
Date"); provided, however, this Letter of Credit shall be automatically extended
for successive twelve (12) month periods unless we shall notify each of you in
writing by United States certified mail at least thirty (30) days prior to the
Expiration Date (whether the date set forth above or the Expiration Date as so
extended) that this Letter of Credit will not be automatically extended on that
Expiration Date. In no event shall the Expiration Date, as automatically
extended, extend beyond .
We hereby agree with the drawers, endorsers, and bona fide holders of
all drafts drawn on and in compliance with the terms of this credit that such
draft will be duly honored on the day of presentation to the drawee and that any
statutory, UCP, or other rights to delay honor of sight drafts, including such
rights under Article 5, Section 5-112 (1)(a) and (b) of the Uniform Commercial
Code, are hereby specifically waived. We further agree, upon the presentation of
such draft to the drawee, to honor such draft by delivering on the date of the
day of such presentation the amount of the draft, by official bank or certified
funds check, to MONY/BDP Office I, L.L.C. ("MONY/BDP") or, at MONY/BDP's sole
option, by wiring on the day of such presentation Federal Funds in the amount of
the draft into such account(s) as MONY/BDP may specifically direct, in writing.
We hereby undertake that drafts drawn in compliance with the terms of
this Letter of Credit will be duly honored by us.
Very truly yours,
(Name of Issuing Bank)
By:__________________________
Authorized Signature
K-1