EXHIBIT 10.1
LEASE
EQUASTONE VIEWS, LLC
a Delaware limited liability company
(as Landlord)
and
(I)STRUCTURE, LLC
a Delaware limited liability company
(as Tenant)
LEASE
EQUASTONE VIEWS, LLC
a Delaware limited liability company
(as Landlord)
and
(I)STRUCTURE, LLC
a Delaware limited liability company
(as Tenant)
1. PREMISES..........................................................1
2. TERM..............................................................1
3. RENT..............................................................2
4. COMPLETION OR REMODELING OF THE PREMISES..........................3
5. OPERATING EXPENSES AND TAXES......................................5
6. SERVICES.........................................................12
7. QUIET ENJOYMENT..................................................14
8. DEPOSIT..........................................................14
9. CHARACTER OF OCCUPANCY...........................................15
10. MAINTENANCE, ALTERATIONS AND REENTRY BY LANDLORD.................15
11. ALTERATIONS AND REPAIRS BY TENANT................................16
12. MECHANICS' LIENS.................................................18
13. SUBLETTING AND ASSIGNMENT........................................18
14. DAMAGE TO PROPERTY...............................................20
15. INDEMNITIES......................................................20
16. SURRENDER AND NOTICE.............................................21
17. INSURANCE, CASUALTY, AND RESTORATION OF PREMISES.................21
18. CONDEMNATION.....................................................22
19. DEFAULT BY TENANT................................................24
20. DEFAULT BY LANDLORD..............................................28
21. SUBORDINATION AND ATTORNMENT.....................................28
22. REMOVAL OF TENANT'S PROPERTY.....................................29
23. HOLDING OVER: TENANCY MONTH-TO-MONTH............................29
24. PAYMENTS AFTER TERMINATION.......................................30
25. STATEMENT OF PERFORMANCE.........................................30
26. MISCELLANEOUS....................................................30
27. AUTHORITIES FOR ACTION AND NOTICE................................33
28. RULES AND REGULATIONS............................................34
29. PARKING..........................................................34
30. SIGNAGE..........................................................34
31. BROKERAGE........................................................35
32. TIME OF ESSENCE..................................................35
33. LOCKERS..........................................................35
34. REPRESENTATIONS AND WARRANTIES...................................35
35. ENVIRONMENTAL REPRESENTATIONS AND COVENANTS......................36
36. ADDENDA..........................................................37
37. TELECOMMUNICATIONS...............................................37
38. GUARANTY OF LEASE................................................40
EXHIBIT CHECKLIST
EXHIBIT A - FLOOR PLAN
EXHIBIT B - LEGAL DESCRIPTION
EXHIBIT C - COMMENCEMENT CERTIFICATE
EXHIBIT D - RULES AND REGULATIONS
EXHIBIT E - WORK LETTER
EXHIBIT F - LEASE GUARANTY
EXHIBIT G - TELECOMMUNICATION RULES
EXHIBIT H - TELECOM SERVICES
ADDENDUM 1 OPTION TO RENEW OR EXTEND
ADDENDUM 2 RIGHT OF FIRST REFUSAL
ADDENDUM 3 TENANT WORK
ADDENDUM 4 INSURANCE
OFFICE BUILDING LEASE
THIS LEASE (this "Lease") is made as of this 27th day of June, 2006, by
and between EQUASTONE VIEWS, LLC, a Delaware limited liability company
("Landlord") and (I)STRUCTURE, LLC, a Delaware limited liability company
("Tenant").
W I T N E S S E T H:
1. PREMISES. In consideration of the payment of rent and the keeping and
performance of the covenants and agreements by Tenant, as hereinafter set forth,
Landlord hereby leases and demises unto Tenant the premises located on the
second floor of the Building known as Suite 200, comprised of approximately
35,477 rentable square feet (the "Rentable Area"), as depicted on the floor plan
hereto attached as Exhibit A (hereinafter referred to as the "Premises"), and
being a part of the building known as The Views I, located at ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (the "Building"), together with a non-exclusive
right, subject to the provisions hereof, to use all appurtenances thereto,
including, but not limited to, any plazas, common areas (the "Common Areas), or
other areas on the real property (described more particularly on Exhibit B, the
"Real Property") designated by Landlord for the non-exclusive use of the tenants
of the Building. The Building, Real Property, plazas, common areas, other areas
(including other buildings or improvements located on the Real Property), and
appurtenances are hereinafter collectively sometimes called the "Building
Complex". For purposes of this Lease, "rentable square feet" and "usable square
feet" shall be calculated pursuant to the Building Owners' and Managers'
Association (BOMA) Standard Method of Measuring Floor Area in Office Building in
effect at the time of measurement. Within thirty (30) days after Substantial
Completion of the Landlord's Work (as such terms are hereinafter defined),
Landlord's space planner/architect shall measure and certify the rentable and
usable square feet of the Premises in accordance with the provisions of this
Article 1 and the results thereof shall be presented to Tenant in writing. In
the event that it is determined that the square footage amounts are different
from those set forth in this Lease, all amounts, percentages and figures
appearing or referred to in this Lease based upon such incorrect amount shall be
modified in accordance with such determination. If such determination is made,
it will be confirmed in writing by Landlord to Tenant.
2. TERM. The term of the Lease shall commence at 12:01 a.m. on the date
that the Premises are Ready for Occupancy (as defined in Section 4(A) below)
(such date shall be the "Commencement Date") (but in no event prior to July 1,
2006), and shall terminate at 12:00 midnight on the last day of the 120th full
month following the Commencement Date (said term is referred to herein as the
"Primary Lease Term"; the Primary Lease Term as extended pursuant to this Lease
by the Renewal Term (as hereinafter defined) is referred to herein as the
"Term"). Landlord agrees that it shall use its commercially reasonably efforts
to provide Tenant with prior written notice of the date that is thirty (30) days
prior to the estimated Commencement Date. Landlord shall permit Tenant and its
agents to enter the Premises on or after the date that is (i) thirty (30) days
prior to the Commencement Date in order that Tenant may inspect, arrange,
relocate, and test the equipment, furniture, fixtures, and cabling located in
the Premises, and to install Tenant's equipment, furniture, fixtures and cabling
(subject to the terms of Section 11 hereof), subject to Landlord's prior written
approval, and in a manner and upon terms and conditions and at times
satisfactory to Landlord's representative (ii) sixty (60) days prior to the
Commencement Date to perform or cause to be performed Tenant's Work and the
installation and testing of telecommunications and data equipment, including
cabling, subject to the terms of Section 2(h) of the Work Letter attached hereto
as Exhibit E and (iii) otherwise are permitted by the Work Letter. The foregoing
license to enter the Premises is, however, conditioned upon Tenant's contractors
and their subcontractors and employees working in harmony and not materially
interfering with the work being performed by Landlord. If at any time that entry
shall cause material disharmony or materially interfere with the work being
performed by Landlord, this license may be withdrawn by Landlord upon twenty
four (24) hours written notice to Tenant. That license is further conditioned
upon the compliance by Tenant's contractors with all reasonable requirements
imposed by Landlord on third party contractors, including without limitation the
maintenance by Tenant and its contractors and subcontractors of workers'
compensation and public liability and property damage insurance in amounts and
with companies and on forms reasonably satisfactory to Landlord, with
certificates of such insurance being furnished to Landlord prior to proceeding
with any such entry. The entry shall be deemed to be under all of the provisions
of the Lease except as to the covenants to pay Rent or any obligation not
operative prior to the Commencement Date. Landlord shall not be liable in any
way for any injury, loss or damage which may occur to any such work being
performed by Tenant, the same being solely at Tenant's risk. In no event shall
the failure of Tenant's contractors to complete any work in the Premises delay
the Commencement Date.
3. RENT. Tenant shall pay the annual rental (the "Base Rent") for the
Primary Lease Term, payable in monthly installments due on the first day of each
month during the term hereof, as follows:
Annual Rental Rate Monthly
Term Per RSF Rental
---- ------- ------
Months 1-12 $11.00 $32,520.58*
Months 13-24 $11.22 $33,171.00*
Months 25-36 $11.44 $33,821.41
Months 37-48 $11.67 $34,501.38
Months 49-60 $11.91 $35,210.92
Months 61-72 $12.32 $36,423.05
Months 73-84 $12.75 $37,694.31
Months 85-96 $13.20 $39,024.70
Months 97-108 $13.66 $40,384.65
Months 109-120 $14.14 $41,803.73
* Subject to the terms of this Lease, Base Rent and other Rent hereunder for
Months 1 to 12 shall be abated in its entirety so long as no Event of Default
shall have occurred under this Lease.
* Subject to the terms of this Lease and so long as no Event of Default shall
have occurred under this Lease, (i) Base Rent for Months 13 to 18 shall be
partially abated such that Tenant shall pay $23,375.00 (and not $33,171.00) and
(ii) Tenant's Pro Rata Share of Taxes and Operating Expense shall be partially
abated to 14.8251% (and not 21.0380%).
* Subject to the terms of this Lease and so long as no Event of Default shall
have occurred under this Lease, (i) Base Rent for Months 19 to 24 shall be
partially abated such that Tenant shall pay $28,050.00 (and not $33,171.00) and
(ii) Tenant's Pro Rata Share of Taxes and Operating Expense shall be partially
abated to 17.7901% (and not 21.0380%).
For the avoidance of doubt, the parties agree that notwithstanding the foregoing
abatement of the Base Rent (and other Rent charged, as applicable) for the
period between Months 1 to 24 of the Term, Tenant shall have the right to occupy
and use the entire Premises pursuant to this Lease, subject to the terms of this
Lease. In the event that the Rentable Area is reduced due to partial destruction
or similar cause, which event causes a reduction on a permanent basis to the
Premises at any time during the period between Months 13 to 24 following the
Commencement Date, then the monthly Base Rent obligation shall be proratably
reduced to reflect such reduction.
Notwithstanding the foregoing, Tenant hereby agrees and acknowledges that, if a
default by Tenant results in the termination of this Lease, specifically as part
of the remedies to which Landlord is entitled pursuant to Article 19 of this
Lease, Landlord shall be entitled to recover the unamortized amount of the
abated Base Rent and other Rent that would have been due during the Months 1 to
24 following the Commencement Date ("Conditionally Abated Rent Amount"). The
Conditionally Abated Rent Amount shall amortize on a straight-line basis, in
equal monthly installments at the Prime Rate set forth in Section 19(E) of this
Lease, over the entire Lease Term, commencing with the twenty-fifth (25th) month
thereof.
All rents shall be paid in advance, without notice, set off, abatement, or
diminution, at the office of Landlord located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, or at such place as
Landlord from time to time designates in writing to Tenant.
4. COMPLETION OR REMODELING OF THE PREMISES.
A. Landlord has agreed to complete the Landlord's Work (as such term
is defined in the work letter attached hereto as Exhibit E (the "Work
Letter")). Landlord shall pay, or reimburse Tenant for, the costs incurred
in completing the Landlord's Work and the Tenant Work (as hereinafter
defined) up to a maximum of Twenty Dollars ($20.00) per square foot of the
Rentable Area (the "Allowance") (i.e., a total maximum of $709,540.00). The
Allowance will first be used to pay the costs incurred with respect to the
Landlord's Work and then, and only then, to the costs incurred with respect
to the Tenant Work. In the event a portion of the Allowance is used to pay
costs incurred with respect to the Tenant Work, the costs incurred with
respect to the first item listed on Addendum 3 attached hereto shall be
paid first (i.e., card entry system identical to the card entry system
currently in use at the entrance doors to the Building, including any
related cabling therefor, and all installation costs therefor), and
thereafter any remaining Allowance amounts shall be used to pay the costs
incurred with respect to items listed on Addendum 3 attached hereto in
descending order from the first item listed. In the event the Landlord's
Work and the Tenant Work exceeds the Allowance, any excess amount shall be
at Tenant's sole cost and expense and shall be promptly paid by Tenant upon
receipt of billing therefor which Landlord, shall, in its sole and absolute
discretion, shall have the right to require be paid prior to Landlord's
commencement of the Landlord's Work or Tenant Work, subject to Tenant's
right of review and approval (which approval shall not be unreasonably
withheld, conditioned or delayed) of all invoices and bills therefor. For
purposes of this Lease, the "Tenant Work" shall mean the work or items set
forth in Addendum 3 attached hereto constructed by Landlord's Contractor
(as defined in the Work Letter attached hereto as Exhibit E) or, if
required by Landlord, a general contractor selected by Tenant, and
reasonably approved by Landlord pursuant to plans submitted for Landlord's
review and approval, which approval shall not be unreasonably withheld,
conditioned or delayed. Tenant's right to use the Allowance hereunder shall
terminate six (6) months after the Commencement Date; provided that Tenant
may apply for reimbursement from the Allowance for applicable Tenant
expenses only two (2) times after the Commencement Date.
B. Landlord shall use commercially reasonable efforts to complete the
Landlord's Work on or before August 1, 2006. If the Premises are not Ready
for Occupancy (as hereafter defined) on August 1, 2006, due to any reason
other than Tenant Delay (as defined in the Work Letter), Tenant's
obligation to pay the Base Rent, its Pro Rata Share of Operating Expenses
and Taxes, and other sums owing hereunder shall not commence until the
Premises are Ready for Occupancy, whereupon this Lease, and all covenants,
conditions and agreements herein contained shall be in full force and
effect. Notwithstanding the foregoing, if the Premises are not going to be
Ready for Occupancy on or before September 1, 2006, Landlord agrees that it
shall provide written notice of such delay to Tenant on or before August 1,
2006, in which case the Premises shall be deemed "Ready for Occupancy" on
October 1, 2006 or the date upon which the Premises is actually Ready for
Occupancy. If the Premises is not Ready for Occupancy on or before October
1, 2006 due to any reason other than Tenant Delay or Force Majeure Event
(defined below), Tenant shall receive two (2) days of Rent abatement for
each day that the Premises are not Ready for Occupancy after October 1,
2006, up to a maximum of $65,333.33. "Force Majeure Event" means acts of
God, strikes, lockouts, labor troubles or disputes, inability to procure or
shortage of materials or labor, failure of power or utilities, delay in
transportation, fire, vandalism, accident, flood, severe weather, other
casualty, changes in zoning and other governmental requirements, riot,
insurrection, civil commotion, sabotage, explosion, war, natural or local
emergency, acts or omissions of others, or other reasons of a similar or
dissimilar nature not solely the fault of, or under the exclusive control
of, Landlord.
C. Subject to the terms of Section 4B above, the postponement of
Tenant's obligations to pay rent and other sums herein provided to be paid
by Tenant for such period prior to the delivery of the Premises to Tenant,
Ready for Occupancy, shall be in full settlement of all claims which Tenant
might otherwise have by reason of the Premises not being Ready for
Occupancy on or before October 1, 2006, or such later date as provided in
Section 4B.
D. The Premises shall be deemed "Ready for Occupancy" when Landlord
shall (a) have substantially completed the Landlord's Work and any other
remodeling work to be performed by Landlord, to the extent agreed to in the
Work Letter (such substantial completion to mean that all of the Landlord's
Work and other remodeling work shall have been substantially completed
pursuant to the Space Plans and Working Drawings (as such terms are
hereinafter defined) and any other plans and specifications furnished
pursuant to the Work Letter, other than so-called "punch list" items to be
completed promptly thereafter), (b) Landlord shall have furnished Tenant
with a certificate of the Architect (as hereinafter defined) certifying to
the reasonable satisfaction of Tenant that substantial completion as
described above has occurred, (c) Landlord shall have furnished to Tenant a
temporary or permanent certificate of occupancy for the Premises, and (d)
Tenant shall have full access to the Premises to commence and conduct
Tenant's business therein. Subject to the terms of this Section 4(D) and
except as set forth in the Work Letter, Landlord shall have no obligation
for the completion or remodeling of the Premises, and Tenant shall accept
the Premises in their "As Is" condition on the Commencement Date.
E. Tenant shall be permitted to use any existing improvements,
furniture fixtures, equipment, and cabling, currently located within the
Premises at no charge; provided Landlord make no representation or warranty
as to the fitness, adequacy or condition of such materials and Tenant
accepts same AS-IS WHERE-IS, WITH ALL FAULTS. Tenant shall have the right
to remove and/or replace any such fixtures, equipment or cabling that is
obsolete or non-functional.
F. If the Commencement Date is delayed pursuant to subsection B above,
and the Commencement Date occurs on a day other than the first day of the
month, the Commencement Date of the Primary Lease Term shall be further
delayed until the first day of the following month, but Tenant shall pay
proportionate rent at the same monthly rate set forth herein for the
partial month prior to the Commencement Date, such rent to be payable in
advance for such partial month (subject to the rent abatement in Subsection
B (if applicable)). In the event said commencement date is so delayed, the
expiration of the term hereof shall be extended so that the Primary Lease
Term will continue for the full period set forth in Section 2 hereof. As
soon as the Primary Lease Term commences, Landlord and Tenant shall execute
a commencement certificate in the form attached hereto as Exhibit C, which
may be requested by either party, setting forth the exact date on which the
Primary Lease Term commenced and the expiration date of the Primary Lease
Term.
5. OPERATING EXPENSES AND TAXES.
In addition to Base Rent, Tenant shall reimburse Landlord for certain of
the Taxes and Operating Expenses (as such capitalized terms are hereinafter
defined) of the Building or the Building Complex, as applicable, such
reimbursement to be in the manner, at the times, and in the amounts set forth in
this Section 5.
A. Taxes. Tenant shall pay to Landlord Tenant's pro rata share of the
total Building rentable area ("Pro Rata Share") of Taxes during the Term,
such Pro Rata Share being 21.0380%. Landlord represents that total Building
rentable area as of the date hereof is 168,633 rentable square feet). If
there is a change in the total Building rentable area or to the Rentable
Area as a result of an addition to the Building, or partial destruction,
modification or similar cause to the Building or the Premises, which event
causes a reduction or increase on a permanent basis to the Building or the
Premises, Landlord shall cause adjustments in the computations as shall be
necessary to provide for any such changes. Landlord's system for
measurement applied to all tenants shall be used to determine rentable area
provided that same shall be a commercially reasonable and recognized method
and system, customarily applied in the Northwest Denver Metropolitan Area
office market. In determining the amount of Taxes for any calendar year,
the amount of special assessments to be included shall be limited to the
amount of the installment (plus any interest payable thereon) of such
special assessment which would have been required to have been paid during
such calendar year if Landlord had elected to have such special assessment
paid over the maximum period of time permitted by law, if such election is
available to Landlord (notwithstanding any contrary election by Landlord).
All reference to Taxes "for" and "billed for" a particular calendar year
shall be deemed to refer to Taxes levied, assessed, billed or otherwise
imposed for such calendar year, without regard to the dates when any such
Taxes are due and payable.
As used in this Lease, the term "Taxes" means any and all general and
special taxes and impositions of every kind and nature whatsoever levied,
assessed, or imposed upon, or with respect to, the Building Complex, any
leasehold improvements, fixtures, installations, additions, and equipment
whether owed by Landlord or Tenant, or either because of or in connection
with the Landlord's ownership, leasing, and operation of the Building
Complex and the Property, including, without limitation, real estate taxes,
personal property taxes, sewer rents, water rents, general or special
assessments, and duties or levies charged or levied upon or assessed
against the Building Complex and personal property, transit taxes, all
costs and expenses (including legal fees and court costs) charged for the
protest or reduction of property taxes or assessments in connection with
the Building Complex, or any tax or excise on rent or any other tax
(however described) on account of rental received for use and occupancy of
any or all of the Building Complex, and the Property, whether any such
taxes are imposed by the United States, the State of Colorado, the County
of Broomfield, or any local governmental municipality, authority, or agency
or any political subdivision of any thereof. Taxes shall not include any
net income, capital stock, succession, transfer, franchise, gift, estate,
and inheritance taxes; provided, however, if at any time during the Term
hereof, a tax or excise on rents or income or other tax, however described
(herein called "Rent Tax"), is levied or assessed by the State of Colorado
or any political subdivision thereof, on account of the Rent hereunder or
the interest of Landlord under this Lease, such Rent Tax shall constitute
Taxes; provided, further, in no event shall Tenant be obligated (i) to pay
for any calendar year any greater amount by way of such Rent Tax than would
have been payable by Tenant had the rentals paid to Landlord under all
Building Complex leases (being the rentals upon which such Rent Tax is
imposed) had been the sole taxable income of Landlord for the calendar year
in question, or (ii) to pay or to reimburse Landlord for any tax of any
kind assessed against Landlord on account of any such Rent Tax having been
reimbursed to Landlord.
B. Operating Expenses. Tenant shall pay Landlord Tenant's Pro Rata
Share of Operating Expenses during the Term (such Pro-Rata Share to be
calculated pursuant to subsection A above). As used in this Lease, the term
"Operating Expenses" means any and all expenses, costs, and disbursements
(other than Taxes) of every kind and nature whatsoever, which are paid or
accrued by Landlord in connection with the management, maintenance,
operation, or repair of the Building or the Building Complex, including,
without limitation, the following:
(a)......Costs of general supplies for the Building in accordance
with the Building Standard (as hereinafter defined) (for purposes of
this Lease, "Building Standard" means the level of tenant finish
improvements or tenant services for occupied space in the Building as
of the date hereof);
(b)......Costs incurred in connection with obtaining and
providing energy for the Building Complex, including, but not limited
to, costs of propane, butane, natural gas, steam, electricity, solar
energy, fuel oils, coal or any other energy sources;
(c)......Costs of water and sanitary and storm drainage services
for the Building Complex;
(d)......Costs of Building Standard janitorial and security
services for the Building Complex;
(e)......Costs of Building Standard general maintenance and
repairs, including costs under climate control and other mechanical
maintenance contracts and repairs and replacements of equipment used
in connection with such maintenance and repair work for the Building
Complex;
(f)......Costs of maintenance and replacement of landscaping for
the Building Complex;
(g)......Insurance premiums, including for fire and all-risk
coverage, together with loss of rent endorsement for the Building
Complex, public liability insurance and any other insurance carried by
Landlord on the Building Complex or any component parts thereof (all
such insurance shall be in such amounts as may be required by any
Mortgagee (as defined in Section 20 hereof) or as Landlord may
reasonably determine and is customary for similar buildings similarly
located), and the part of any claim required to be paid (and actually
paid by Landlord) under the deductible portion of any insurance
policies carried by Landlord in connection with the Building (where
Landlord is unable to obtain insurance without such deductible from a
major insurance carrier at reasonable rates);
(h)......Labor costs associated with operation and maintenance of
the Building Complex in accordance with the Building Standard,
including wages and other payments, costs to Landlord of workmen's
compensation and disability insurance, payroll taxes, welfare fringe
benefits, and all legal fees and other costs or expenses incurred in
resolving any labor dispute associated with the operation and
maintenance of the Building Complex;
(i)......Professional building management fees and expenses
customary for similar properties similarly located;
(j)......Reasonable out-of-pocket legal, accounting, inspection,
and other consultation fees (including, without limitation, fees
charged by consultants retained by Landlord for services that are
intended to produce a reduction in Operating Expenses, reduce the rate
of increase in Operating Expenses or to reasonably improve the
operation, maintenance or state of repair of the Building Complex)
incurred in the ordinary course of operating the Building Complex;
(k)......The costs of capital improvements and replacements made
in or to the Building Complex in order to conform to any applicable
laws, ordinances, rules, regulations or orders of any governmental or
quasi-governmental authority having jurisdiction over the Building
Complex (herein "Required Capital Improvements") and the costs of any
capital improvements and replacements designed primarily to reduce
Operating Expenses or to reduce the rate of increase in Operating
Expenses (herein "Cost Savings Improvements") (it being agreed that
the expenditures for Required Capital Improvements and Cost Savings
Improvements shall be reimbursed to Landlord in equal installments
over the useful life of such capital Required Capital Improvements and
Cost Savings Improvements (as determined by the Internal Revenue Code
of 1986, as amended), together with the interest on the balance of
unreimbursed expenditure at the Prime Rate; provided, however, that
the amount to be reimbursed by Tenant for any Cost Savings Improvement
shall not exceed in any year the actual reduction or savings in
Operating Expenses as a result thereof); and
(l)......Rental payments or acquisition costs, allocated over the
useful life, for machinery or equipment, including vehicles, necessary
to timely and economically perform the cleaning and maintenance
functions for the Building Complex in general (and not specific to any
particular tenant in the Building Complex) imposed on Landlord.
"Operating Expenses" shall not include:
(1)......Costs of work, including painting and decorating
and tenant change work, which Landlord performs for any tenant or
in any tenant's space in the Building other than work of a kind a
scope which Landlord would be obligated to furnish to all tenants
whose leases contain a rental adjustment provision similar to
this one;
(2)......Costs of repairs or other work occasioned by fire,
windstorm or other insured casualty to the extent of insurance
proceeds received or to the extent that such costs of repair or
other work is incurred by Landlord due to the failure of Landlord
to maintain insurance as required by this Lease;
(3)......Leasing commissions, advertising expenses,
promotional expenses and other costs incurred in leasing space in
the Building;
(4)......Costs of repairs or rebuilding necessitated by
condemnation or structural defects in the Building Complex;
(5)......Any interest on borrowed money or debt
amortization, except as specifically set forth above;
(6)......Depreciation on the Building Complex;
(7)......Any settlement, payment or judgment incurred by
Landlord or the Building manager due to their willful misconduct
or gross negligence, as established by a court of law, which is
not covered by insurance proceeds;
(8)......Cost of any damage to the Building Complex caused
directly by Landlord's willful misconduct or gross negligence, as
established by a court of law, which is not covered by insurance
proceeds;
(9)......Repair or replacement of the structural elements of
the roof to the Building;
(10).....Leasehold improvements, including painting, made
for tenants of the Building or made in order to prepare any
portion of the Building for occupancy by a new tenant;
(11).....Brokerage commissions and other fees incurred in
connection with the sale of the Building or the Building Complex;
(12).....The cost of any items for which Landlord is
reimbursed by other third parties, including tenants of the
Building, or is otherwise compensated;
(13).....Rent under any ground lease and/or underlying
leases;
(14).....The cost of any electric current furnished
separately to any other tenant through metering or any other
means;
(16).....Any cost stated in operating expenses representing
an amount paid to a corporation or entity which is controlled by
or under common control with Landlord which is in excess of the
amount which would be paid in the absence of such relationship
(17).....The costs of installing, operating, and maintaining
any specialty such as an observatory, broadcasting facility,
luncheon club, athletic or recreational club, theatre or
cafeteria;
(19).....Any insurance premium to the extent that Landlord
is reimbursed therefore by Tenant pursuant to this Lease or by
any other occupant of the Building
(22).....Capital expenditures for Building improvements
(other than as set forth in subsection (k) above), tenant
improvements, and initial landscaping;
(23).....The costs for the acquisition of (as contrasted
with the maintenance of) sculpture, paintings or other objects of
art;
(24).....Legal fees incurred in negotiating and enforcing
tenant leases;
(25).....Reserves for anticipated costs; or
(26).....Late charges and Penalties for late payment or
non-payment by Landlord of any debt or obligation (but only if
Tenant timely pays amounts due under the Lease relating to same),
or for Landlord's gross negligence or willful misconduct
resulting in its breach of any laws, including, without
limitation, penalties for the failure to pay Taxes and penalties
for the breach of any environmental laws or laws for the
protection of human health and safety.
Notwithstanding any other provision herein to the contrary: (A) in the
event the Building is not 100% occupied during any calendar year or in the
event the entire Building is not provided by Landlord with Building
Standard services during any calendar year, an adjustment shall be made in
computing each component of the Operating Expenses for such year so that
the Operating Expenses shall be computed for such year as though the
Building had been 100% occupied during such year and as though the entire
Building had been provided with Building Standard services during such
year; and (B) if any other tenant does not pay for a utility or service
through payment of Operating Expenses, then the cost of the pertinent
utility or service to such separately metered or separately contracted for
premises shall be excluded from Operating Expenses, and the net cost to
Landlord for such utility or service to the Building shall be allocated
over the net Rentable Area of that portion of the Building which excludes
the separately metered or separately contracted for premises.
C. On or before the first day of each calendar month during the Term,
Tenant shall pay to Landlord as additional rent one-twelfth (1/12th) of
Landlord's estimate of Tenant's Pro Rata Share of Operating Expenses and
Taxes for the then current calendar year. Landlord may from time to time
adjust such estimate by written notice to Tenant, and Tenant's subsequent
payments shall be based on such adjusted estimates.
D. Audit and Adjustment Procedures.
(1)......After the expiration of each calendar year (provided,
however, that Landlord shall use its commercially reasonable efforts
to do so within one hundred twenty (120) days thereafter), Landlord
shall submit to Tenant a statement setting forth the actual Operating
Expenses and Taxes ("Actual Operating Expenses and Taxes") for such
calendar year, including (a) Tenant's Pro Rata Share of Actual
Operating Expenses and Taxes for such period, and (b) the aggregate of
Tenant's payments of Operating Expenses and Taxes for such period.
Within thirty (30) days after the delivery of such statement
(including any statement delivered after the expiration or termination
of the Term of this Lease), the party in whose favor the difference,
if any, between clauses (a) and (b) exists shall pay the amount of
such difference to the other; provided, however, that overpayments by
Tenant may at Landlord's option be credited against the next payments
of Operating Expenses due except with respect to the last year of the
Term.
(2)......The annual determination and statement of Actual
Operating Expenses and Taxes shall be prepared in accordance with
Generally Accepted Accounting Principles ("GAAP"). In the event of any
dispute as to any Actual Operating Expenses and Taxes due hereunder,
Tenant and its employees and agents, shall have the right to inspect
Landlord's accounting records relative to Operating Expenses and Taxes
in dispute at the office in which Landlord maintains its records
during normal business hours at any time within one hundred twenty
(120) days following the furnishing by Landlord to Tenant of such
statement, subject to the execution of a confidentiality agreement
reasonable acceptable to Landlord. Unless Tenant shall take written
exception of any item in any such statement within such one hundred
twenty (120) day period, such statement shall be considered as
accepted by Tenant. If Tenant makes such timely written exception, a
certification as to the proper amount of Rent shall be made by a
nationally recognized certified public accountant not compensated on a
contingency fee type basis and subject to a confidentiality agreement
reasonably acceptable to Landlord, that is mutually acceptable to
Tenant and Landlord (which certification shall be final and
conclusive). Tenant agrees to pay the cost of such certification
unless it is determined that Landlord's original determination of both
Taxes and Operating Expenses was in error by more than three percent
(3%) over Tenant's actual obligation whereby Landlord shall reimburse
Tenant for such certification.
(3)......In the event of the termination of this Lease by
expiration of the stated Term or for any other cause or reason prior
to the determination of an adjustment to Rent permitted by this Lease,
Tenant's agreement to pay its Pro Rata Share of Taxes and Actual
Operating Expenses up to the time of termination shall survive the
termination of this Lease.
(4)......All calculations to be made under this Section 5 shall
be made, furnished, handled, and (where applicable) billed separately.
(5)......Subject to the rights of Landlord hereunder, any refund
to which Tenant may be entitled under the provisions of this Section 5
may not be used by Tenant to offset any payments of Base Rent or other
payments then due or that become due Landlord under this Lease.
(6)......If the Term of this Lease commences on any day other
than the first day of January, or if the Term of this Lease ends on
any day other than the last day of December, any payment of Taxes or
Operating Expenses due to Landlord shall be prorated on the basis by
which the number of days in such partial year bears to 365.
(7)......All sums which Tenant is required to pay or discharge
pursuant to this Section 5 of this Lease in addition to Base Rent,
together with any interest or other sums which may be added for late
payment thereof, shall constitute "Rent" hereunder.
6. SERVICES.
A. Subject to the provisions of subsection D below, Landlord, without
charge, except as provided herein, and in accordance with standards from
time to time prevailing for the Building, agrees: (1) to furnish hot and
cold running water at those points of supply for general use of tenants of
the Building and as necessary to service a coffee/breakroom and/or lunch
room in the Premises; (2) to furnish to public areas of the Building
Complex heated or cooled air (as applicable), electrical current,
commercial bonded janitorial services, and maintenance to the extent
Landlord deems necessary to operate the Building as a first class office
building in the Northwest Denver Metropolitan Area office building market
and to the extent required by applicable law; (3) to furnish, during
Ordinary Business Hours, as hereinafter defined, such heated or cooled air
to the Premises as may, in the judgment of Landlord, be reasonably required
for the comfortable use and occupancy of the Premises, provided that the
recommendations of Landlord's engineer regarding occupancy and use of the
Premises are complied with by Tenant and, with respect to cooled air,
provided the same is used only for standard office use; (4) to furnish
unfiltered treated cooling tower water for use in Tenant's packaged HVAC
systems, provided that such systems are equipped with Landlord-approved
strainers, pumping systems and controls, and that such systems are
connected only after approval of Landlord's engineer (not to be
unreasonably withheld); (5) to provide, during Ordinary Business Hours (as
hereinafter defined), the general use of all passenger elevators (except in
the case of emergencies or repair) for ingress and egress to and from the
Premises and to provide the general use of at least one such elevator at
all times, except in the case of emergencies; (6) to provide janitorial
services for the Premises consistent with the standard of janitorial
services for first class office building in the Northwest Denver
Metropolitan Area office building market and to the extent of the Building
Standard Landlord's Work items contained therein (including such window
washing of the outside of exterior windows as may, in the judgment of
Landlord, be reasonably required), but unless and until the Building
Standard changes, such janitorial services shall be provided after Ordinary
Business Hours on Monday through Thursday and Sunday only, except for Legal
Holidays (as hereinafter defined); and (7) to cause electric current to be
supplied to the Premises for all of Tenant's Standard Electrical Usage (as
hereinafter defined).
B. Tenant shall reimburse Landlord for reasonable and actual costs
(without markup) incurred by Landlord in providing services for Excess
Usage (as hereinafter defined), which costs are subject to change from time
to time (and which costs are currently $50.00 per hour). Such reasonable
and actual costs will include Landlord's costs for materials, additional
wear and tear on equipment, utilities, and labor (including fringe and
overhead costs). Computation of Landlord's cost for providing such services
will be made by Landlord's engineer, based on his engineering survey of
Tenant's Excess Usage. Tenant shall also reimburse Landlord for all costs
of supplementing the Building HVAC system and/or extending or supplementing
any electrical service, as Landlord may determine is necessary, as a result
of Tenant's Excess Usage. Prior to installation or use by Tenant of any
equipment which will result in Excess Usage or operation of the Premises
for extended hours on an ongoing basis, Tenant shall notify Landlord of
such intended installation or use and obtain Landlord's consent therefor,
which shall not be unreasonably withheld, delayed or conditioned). In
addition to the foregoing, Tenant, at Tenant's option, upon such notice or
at any time thereafter, may request Landlord, at Tenant's sole cost and
expense, to install a check meter and/or flow meter to assist in
determining the cost to Landlord of Tenant's Excess Usage. If Tenant
desires electric current and/or heated or cooled air to the Premises during
periods other than Ordinary Business Hours, Landlord will use reasonable
efforts to supply the same, but at the expense of Tenant, at Landlord's
standard rate as established by it, from time to time, for such services.
Not less than twenty-four (24) hours' prior notice shall be given by Tenant
to Landlord of Tenant's desire for such services. It is also understood and
agreed that Tenant shall pay the cost of replacing light bulbs and/or tubes
and ballast used in all lighting in the Premises other than Building
Standard lighting.
C. If Tenant requires janitorial services other than those required to
be provided to other tenants of the Building Complex generally, Tenant
shall separately pay for such services monthly upon ▇▇▇▇▇▇▇▇ by Landlord,
or Tenant shall, at Landlord's option, separately contract for such
services with the same company furnishing janitorial services to Landlord.
Notwithstanding the foregoing, Tenant shall have the right, subject to
Landlord's prior written consent (not to be unreasonably withheld) and such
rules, regulations and requirements as Landlord may reasonably impose
(including but not limited to the requirement that such janitors belong to
a trade union), to employ janitors, other than those employed by Landlord,
to perform such additional services.
D. Tenant agrees that Landlord shall not be liable for failure to
supply any such heating, air conditioning, elevator, electrical,
janitorial, lighting or other services during any period Landlord is
required to reduce or curtail such services pursuant to any applicable
laws, rules, or regulations, including regulations of any utility now or
hereafter in force or effect, and Tenant agrees that Landlord may
discontinue, reduce, or curtail such services, or any of them (either
temporarily or permanently), at such times as it may be necessary by reason
of accident, repairs, alterations, improvements, strikes, lockouts, riots,
acts of God, application of applicable laws, statutes, or rules and
regulations or due to any other happening beyond the control of Landlord.
Notwithstanding the foregoing, Landlord shall not be relieved of its
obligations hereunder to supply heating, air conditioning, elevator,
electrical, janitorial, lighting or other services in the event the failure
thereof is due to the gross negligence or willful misconduct of Landlord.
In the event of any interruption, reduction, or discontinuance of access to
the Premises and/or Landlord's services (other than janitorial services)
(either temporary or permanent), Tenant's monthly Base Rent and Additional
Rent shall ▇▇▇▇▇ during the period of time in which Tenant cannot occupy
the Premises for the Permitted Use, but only to the extent of rental
abatement insurance proceeds received by Landlord.
E. Tenant agrees to notify promptly the Landlord or its representative
of any accidents or defects in the Building of which Tenant becomes
actually aware including defects in pipes, electrical wiring, and HVAC
equipment. In addition, Tenant shall provide Landlord with reasonably
prompt notification of any matter or condition of which it has actual
notice and which it reasonably anticipates may cause material injury or
damage to the Building or any person or property therein. Nothing set forth
in this subsection E shall impose an obligation on Tenant to make any
repair or maintenance of the pipes, electrical wiring, and HVAC equipment
or any other part of the Building.
F. For purposes of this Lease:
"Excess Usage" shall be defined as any usage of electricity (1) during
other than Ordinary Business Hours; or (2) in an amount in excess of
Tenant's Standard Electrical Usage; or (3) for Special Equipment; or (4)
for any requirement for standard HVAC services during other than Ordinary
Business Hours.
"Legal Holidays", as used herein, shall mean New Year's Day, ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ Day, Presidents' Day, Memorial Day, Independence Day, Labor
Day, Thanksgiving Day, Christmas Day, and such other national holidays as
may be hereafter established by the United States Government.
"Ordinary Business Hours", as used herein shall mean and refer to 7:00
a.m. to 6:00 p.m. Monday through Friday and 8:00 a.m. to 12:00 p.m. on
Saturdays, Legal Holidays excepted.
"Special Equipment", as used herein, shall mean (a) any equipment
consuming more than 0.5 kilowatts at rated capacity, (b) any equipment
requiring a voltage other than 120 volts, single phase, or (c) equipment
that requires the use of self-contained HVAC units.
"Tenant's Standard Electrical Usage", as used herein, shall mean and
refer to weekly electrical consumption in an amount equal to multiplying
three and one-half (3.5) ▇▇▇▇▇/square foot by fifty-nine (59) hours and by
then multiplying the product thereof by the number of rentable square feet
in the Premises.
7. QUIET ENJOYMENT. So long as Tenant is not in default under this Lease
beyond applicable notice, grace and cure periods therefor, Tenant shall be
entitled to the quiet enjoyment and peaceful possession of the Premises, subject
to the terms and provisions of the Lease.
8. DEPOSIT. It is hereby agreed that thirty (30) days prior to the date
that (i) the amount of the Letter of Credit (defined in Article 39) is reduced
to $0 or (ii) Tenant's obligation to maintain the Letter of Credit terminates
pursuant to the terms of Article 39, Tenant shall deposit with Landlord and will
keep on deposit at all times thereafter during the term of this Lease, the sum
of Forty-One Thousand Seven Hundred Eighty-Eight and 41/100 Dollars
($41,803.73), as security for the payment by Tenant of all rent and other
amounts herein agreed to be paid and for the faithful performance of all the
terms, conditions, and covenants of this Lease. If, at any time during the term
of this Lease, an Event of Default shall have occurred and be continuing,
Landlord shall have the right to use said deposit, or so much thereof as
necessary, in payment of any rent or other amount in default as aforesaid, in
reimbursement of any expense incurred by Landlord, and in payment of any damages
incurred by Landlord by reason of such Event of Default. In such event, Tenant
shall, on written demand of Landlord, forthwith remit to Landlord a sufficient
amount in cash to restore said deposit to the amount set forth above. In the
event said deposit has not been utilized as aforesaid, said deposit, or as much
thereof as has not been utilized for such purposes, shall be refunded to Tenant
or to whomever is then the holder of Tenant's interest in this Lease, without
interest, upon full performance of this Lease by Tenant. Landlord shall have the
right to co-mingle said deposit (and any interest earned thereon) with other
funds of Landlord. Landlord may deliver the funds deposited herein by Tenant to
the purchaser of Landlord's interest in the Premises in the event such interest
be sold and, thereupon, Landlord shall be discharged from further liability with
respect to such deposit.
9. CHARACTER OF OCCUPANCY. Tenant covenants and agrees to occupy the
Premises as general offices and uses ancillary and related to, and consistent
with, the use of the Premises as general offices, including, without limitation,
the use of portions of the Premises for storage, for computer server storage and
for standard office employee amenities (the "Permitted Use"), and for no other
purpose, and to use them in a careful, safe, and proper manner; to pay on demand
for any damage to the Premises caused by misuse or abuse thereof by Tenant,
Tenant's agents or employees, or of any other person entering upon the Premises
under express or implied invitation of Tenant. Tenant, at Tenant's expense,
shall comply with all laws, codes, rules, and regulations of the United States,
the State of Colorado, and of the County of Broomfield ("Applicable Laws"), now
in effect, or which may hereafter be in effect, which shall impose any duty upon
Landlord or Tenant with respect to the occupation or alteration of the Premises.
Tenant shall not commit waste or suffer or permit waste to be committed or
permit any commercial unreasonable nuisance on or in the Premises. Tenant agrees
that (other than cleaning supplies, copier toner or other similar type products
commonly found in commercial office space, provided such items are properly
labeled, stored and disposed of in accordance with all Applicable Laws) it will
not store, keep, use, sell, dispose of or offer for sale in, upon or from the
Premises any article or substance which may be prohibited by any insurance
policy in force from time to time covering the Building nor shall Tenant keep,
store, produce or dispose of on, in or from the Premises or the Building any
substance which may be deemed a Hazardous Substance (as hereinafter defined) (it
being agreed that Tenant shall be permitted to install equipment permitted by
Environmental Laws (as hereinafter defined) as "articles" thereunder). Landlord
agrees that, notwithstanding the provisions of Section 6, Tenant shall have the
right of access to the Premises twenty-four (24) hours a day, on all days of the
calendar year, without the requirement of notice to Landlord for access on times
other than Ordinary Business Hours or on Public Holidays.
10. MAINTENANCE, ALTERATIONS AND REENTRY BY LANDLORD.
A. Unless otherwise expressly provided herein, Landlord shall not be
required to make any improvements or repairs of any kind or character to
the Premises during the Primary Lease Term, or any extension thereof,
except: (i) such repairs to HVAC, mechanical, life safety and electrical
systems in the Premises (to the extent such systems are Building Standard)
as may be deemed necessary by Landlord for normal maintenance operations of
the Building and the Building Complex and as may be required to maintain
the Building to a standard consistent with the standard for first class
office building in the Northwest Denver Metropolitan Area office building
market; and (ii) upkeep, maintenance, and repairs to all Common Areas in
the Building and the Building Complex to a standard consistent with the
standard for first class office building in the Northwest Denver
Metropolitan Area office building market so long as the need for any such
repair is not the result of Tenant's negligence.
B. Tenant covenants and agrees to permit Landlord at any time to enter
the Premises upon twenty-four hours prior notice to Tenant (other than in
the case of emergencies) to examine and inspect the same or, if Landlord so
elects, to perform any obligations of Tenant hereunder which Tenant shall
fail to perform after written notice to Tenant, or to perform such
cleaning, maintenance, janitorial services, repairs, additions, or
alterations as Landlord may deem necessary or proper for the safety,
improvement, or preservation of the Premises or of other portions of the
Building Complex or as may be required by governmental authorities through
any code, rule, regulation, ordinance, and/or law. Any such reentry shall
not constitute an eviction or entitle Tenant to abatement of rent, unless
such reentry results in the deprivation of access to the Premises or causes
the Premises to be unusable for the Permitted Use. Furthermore, Landlord
shall at all times have the right at Landlord's election to make such
alterations or changes in other portions of the Building Complex as
Landlord may from time to time deem necessary and desirable as long as such
alterations and changes do not unreasonably interfere with Tenant's access,
use and occupancy of the Premises. Landlord may use one or more of the
street entrances to the Building Complex and such public areas thereof as
may be necessary, in Landlord's determination to complete such alterations
or changes.
11. ALTERATIONS AND REPAIRS BY TENANT.
A. Tenant covenants and agrees not to (a) make any structural,
mechanical or electrical alterations in or additions to the Premises, (b)
make any other alterations or additions to the Premises in excess of
$10,000 per work order that are not visible from the exterior of the
Premises and do not otherwise affect the exterior appearance of the
Building, and do not require any application to a political jurisdiction
for rezoning, general plan amendment, variance, conditional use permit or
architectural review approval, (c) make any other alterations or additions
to the Premises or (d) install of any equipment or machinery therein which
requires modification of or additions to any existing electrical outlet or
which would increase Tenant's usage of electricity beyond the Tenant's
Standard Electrical Usage (all such alterations are referred to herein
collectively as the "Alterations") without in each such instance first
obtaining the written consent of Landlord. Landlord's consent to any
Alterations by Tenant or Landlord's approval of the plans, specifications
and working drawings for the Alterations shall create no responsibility or
liability on the part of Landlord for their completeness, design
sufficiency, or compliance with all laws, rules and regulations of
governmental agencies or authorities now in effect or which may hereafter
be in effect. Tenant, at its expense, shall pay all engineering and design
costs incurred by Landlord attributable to the Alterations and obtain all
necessary governmental permits and certificates required for any
Alterations to which Landlord has consented and shall cause such
alterations to be completed in compliance therewith and with all applicable
laws and requirements of public authorities and all applicable requirements
of Landlord's insurance carriers. All Alterations which Tenant is permitted
(or deemed permitted) to make shall be performed in a good and workmanlike
manner, using new materials and equipment at least equal in quality to the
original installations in the Premises. All repair and maintenance work
required to be performed by Tenant pursuant to the provisions of subsection
B below and any Alterations permitted by Landlord pursuant to the
provisions hereof, including, but not limited to, any installations desired
by Tenant for Tenant's telegraphic, telephonic or electrical connections,
shall be done at Tenant's expense by, at Tenant's option, Landlord's
employees or, with Landlord's consent (not to be unreasonably withheld), by
persons requested by Tenant and authorized in writing by Landlord;
provided, however if such work is performed by persons who are not
employees of Landlord, Tenant shall pay to Landlord, upon receipt of
billing therefor, the costs for supervision and control of such persons as
Landlord may determine to be reasonably necessary. Notwithstanding the
foregoing, with respect to any Alterations that affect the structure of the
Building, the Building electrical, mechanical or life safety systems, or
any portion of the Project outside the Premises, at Landlord's option, such
Alterations shall be made by Landlord, or by a contractor specified by
Landlord, for Tenant's account. In the event Landlord constructs any
Alterations pursuant to this section, Tenant shall reimburse Landlord for
the cost thereof (including a reasonable charge for Landlord's overhead) as
an Additional Rent, within twenty (20) days after receipt of a statement
from Landlord therefor. If Landlord authorizes persons requested by Tenant
to perform such work, prior to the commencement of any such work, on
request, Tenant shall deliver to Landlord certificates issued by insurance
companies qualified to do business in the State of Colorado, evidencing
that workmen's compensation, public liability insurance, and property
damage insurance, all in the amounts, with companies and on forms
reasonably satisfactory to Landlord, are in force and effect and maintained
(to the extent required by applicable law) by all contractors and
subcontractors engaged by Tenant to perform such work. Upon written request
by Landlord, all such policies shall name Landlord and any Mortgagee (as
defined in Section 20) as an additional insured. Each such certificate
shall provide that the same may not be cancelled or modified without ten
(10) days' prior written notice to Landlord and such Mortgagee. Further,
Landlord and such Mortgagee shall have the right to post notices in the
Premises in locations which will be visible by parties performing any work
on the Premises stating that Landlord is not responsible for the payment
for such work and setting forth such other information as Landlord may deem
necessary. Alterations, repair, and maintenance work shall be performed in
a manner which will not unreasonably interfere with, delay, or impose any
additional expense upon Landlord in the maintenance or operation of the
Building or upon other tenants' use of their premises.
B. Tenant shall keep the Premises in as good order, condition, and
repair and in an orderly state, as when they were entered upon, loss by
fire or other casualty or ordinary wear excepted. Subject to Landlord's
obligation to make repairs in the event of certain casualties, as set forth
in Section 18 below, Landlord shall have no obligation for the repair or
replacement of any portion of the interior of the Premises which is damaged
or wears out during the term hereof regardless of the cause therefor,
including but not limited to carpeting, draperies, window coverings, wall
coverings, painting or any of Tenant's property or betterments in the
Premises.
C. All Alterations and permanent fixtures installed in the Premises,
including, by way of illustration and not by limitation, all partitions,
paneling, carpeting, drapes or other window coverings, and light fixtures
(but not including office supplies, movable office furniture and movable
equipment not attached to the Building), shall be deemed a part of the real
estate and the property of Landlord and shall remain upon and be
surrendered with the Premises as a part thereof without molestation,
disturbance, or injury at the end of the Term, whether by lapse of time or
otherwise. Tenant shall be required to remove any Alterations (including
telecommunications cabling installed by Tenant or Landlord as part of the
Landlord's Work, the Tenant Work, or Alterations) unless otherwise
expressly agreed to between Landlord and Tenant at the time Landlord's
consent to such Alterations is granted by Landlord pursuant to this Lease.
12. MECHANICS' LIENS. Tenant shall pay or cause to be paid all costs for
work done by Tenant or caused to be done by Tenant on the Premises (including
work performed by Landlord or its contractor at Tenant's request following the
commencement of the Primary Lease Term) of a character which will or may result
in liens on Landlord's interest therein and Tenant will keep the Premises free
and clear of all mechanics' liens, and other liens on account of work done for
Tenant or persons claiming under it. Tenant hereby agrees to indemnify, defend,
and save Landlord harmless of and from all liability, loss, damage, costs, or
expenses, including attorneys' fees, on account of any claims of any nature
whatsoever including claims or liens of laborers or materialmen or others for
work performed for or materials or supplies furnished to Tenant or persons
claiming under Tenant. Should any liens be filed or recorded against the
Premises or any action affecting the title thereto be commenced as a result of
such work (which term includes the supplying of materials), Tenant shall cause
such liens to be removed of record within ten (10) days after notice from
Landlord. If Tenant desires to contest any claim of lien, Tenant shall furnish
to Landlord adequate security of at least one hundred fifty percent (150%) of
the amount of the claim, plus estimated costs and interest and, if a final
judgment establishing the validity or existence of any lien for any amount is
entered, Tenant shall pay and satisfy the same at once. If Tenant shall be in
default in paying any charge for which a mechanic's lien or suit to foreclose
the lien has been recorded or filed and shall not have given Landlord security
as aforesaid, Landlord may (but without being required to do so) pay such lien
or claim and any costs, and the amount so paid, together with reasonable
attorney's fees incurred in connection therewith, shall be immediately due from
Tenant to Landlord.
13. SUBLETTING AND ASSIGNMENT.
A. Tenant shall neither sublet any part of the Premises nor assign
this Lease or any interest herein without the written consent of Landlord
first being obtained, which consent, shall not be unreasonably withheld
provided that: (1) Tenant has complied with the provisions of subsection D
below; (2) the proposed subtenant or assignee is engaged in a business and
the Premises will be used in a manner which is in keeping with the then
standards of the Building and does not conflict with any exclusive use
rights granted to any other tenant; (3) the proposed subtenant or assignee
has a reputation and standing in the business community consistent with the
image of tenants in a first-class office building and has reasonable
financial worth in light of the responsibilities involved and Tenant shall
have provided Landlord with reasonable proof thereof; (4) Tenant is not in
default hereunder at the time it makes its request for such consent (or if
such default exists, such default shall be cured by the time of the
assignment or subletting); or (5) the proposed subtenant or assignee is not
a tenant under, or is not currently negotiating pursuant to an executed
letter of intent, a lease with Landlord in any building in the Building
Complex. Notwithstanding anything contained herein to the contrary, Tenant
acknowledges that if the use of the Premises by any proposed subtenant or
assignee would require compliance by Landlord and the Building with any
current or future laws to a greater extent than that required prior to the
proposed occupancy by such subtenant or assignee, Landlord, at its sole
option, may refuse to grant such consent, unless, as an express condition
thereof, Tenant and/or such assignee or subtenant bears the entire cost of
such greater compliance.
B. If this Lease is assigned, or if the Premises or any part thereof
is sublet or occupied by anybody other than Tenant, Landlord may, after
default by Tenant, collect the rent from the assignee, subtenant, or
occupant and apply the net amount collected to the rent herein reserved,
but no such assignment, subletting, occupancy, or collection shall be
deemed an acceptance of the assignee, subtenant, or occupant as the Tenant
hereof or a release of Tenant from further performance by Tenant of
covenants on the part of Tenant herein contained. Consent by Landlord to
any one assignment or sublease shall not in any way be construed as
relieving Tenant from obtaining the Landlord's express written consent to
any further assignment or sublease. Notwithstanding the consent of Landlord
to any sublease or assignment, in no event shall (i) Tenant be relieved
from its primary obligations hereunder to Landlord, including, but not
limited to the payment of all Base Rent and Tenant's Pro Rata Share of
increases in Operating Expenses and (ii) Guarantor be relieved from its
guarantor obligations hereunder to Landlord. Landlord's consent to any
requested sublease or assignment shall not waive Landlord's right to refuse
to consent to any other such request or to terminate this Lease if such
request is made, all as provided herein. If Tenant collects any rental or
other amounts from a subtenant or assignee in excess of the Base Rent and
Tenant's Pro Rata Share of increases in Operating Expenses for any monthly
period, Tenant shall pay to Landlord on a monthly basis, as and when Tenant
receives the same, fifty percent (50%) of all such excess amounts received
(net of reasonable and actual costs of tenant improvements and brokerage
leasing commissions consistent with the market for the Premises) by Tenant
("Bonus Rent"). The obligations of Tenant to pay such Bonus Rent shall
survive the expiration or earlier termination of this Lease. Landlord or
its authorized representatives shall have the right at all reasonable times
to audit the books, records and papers of Tenant relating to any Bonus Rent
received from any subletting or assignment, and shall have the right to
make copies thereof. If the Bonus Rent respecting any assignment or
subletting shall be found understated, Tenant shall, within thirty (30)
days after demand, pay the deficiency, and if understated by more than
three percent (3%), Tenant shall pay Landlord's costs of such audit.
C. Notwithstanding anything contained in this Section 13 to the
contrary, no consent of Landlord shall be required in the event of the
following ("Permitted Transferees"), provided that at least ten (10)
business days before any of the following occurs, Landlord receives written
notice (as well as any documents or information reasonably requested by
Landlord regarding any such transfer or transferee):
(1)......any sublease of the Premises or assignment of this Lease
to Infocrossing Inc. ("Guarantor") or an Affiliate (defined below) of
Tenant or Guarantor, provided, however, in the case of any such
sublease or assignment to an Affiliate of Tenant or Guarantor,
Guarantor shall not be released from the guaranty entered into by
Guarantor as of the date hereof (An "Affiliate" means any entity that
is controlled by, or is under common control with Tenant or Guarantor.
"Control" or "controlled" means the direct or indirect ownership of
more than fifty percent (50%) of the voting securities of any entity
or possession of the right to vote more than fifty percent (50%) of
the voting interest in the ordinary direction of the entity's
affairs);
(2)......any sublease of the Premises or assignment of this Lease
to any entity into which Tenant is merged or with which Tenant is
consolidated or to which a substantial portion of Tenant's assets may
be sold;
(3)......any deemed assignment of this Lease arising out of the
transfer or sale of shares of Tenant or any parent entity in any
publicly traded exchange; or
(4)......any change of name or nature of legal organization of
Tenant in accordance with applicable law.
D. Notwithstanding any other provision contained in this Section 13 to
the contrary, in order to assure Landlord that a proposed assignee will
have the resources with which to pay the rent called for herein, any
proposed assignee, except for Permitted Transferees, must have as
demonstrated to Landlord's satisfaction a net worth (as defined in
accordance with generally accepted accounting principles consistently
applied) at least as great as the net worth of Tenant on the date this
Lease became effective. The financial condition and resources of Tenant
were a material inducement to Landlord in entering into this Lease.
E. All documents utilized by Tenant to evidence any subletting or
assignment to which Landlord has consented shall be subject to prior
approval by Landlord or its counsel. Tenant shall pay within five days of
written demand all of Landlord's reasonable and actual costs and expenses,
including reasonable attorneys' fees, incurred in determining whether or
not to consent to any requested sublease or Assignment and in reviewing and
approving such documentation, such costs and expenses to not exceed Two
Thousand Five Hundred and 00/100 Dollars ($2,500) for each proposed
subletting or assignment. Any proposed assignee of this Lease must assume
and agree to be bound by the terms, provisions and covenants of this Lease.
14. DAMAGE TO PROPERTY. Tenant shall neither hold nor attempt to hold
Landlord liable for any injury or damage, either proximate or remote, occurring
through or caused by fire, water, steam, or any repairs, alterations, injury,
accident, or any other cause to the Premises, to any furniture, fixtures, Tenant
improvements, or other personal property of Tenant kept or stored in the
Premises, or in other parts of the Building Complex not herein demised, whether
by reason of the negligence or default of the owners or occupants thereof or any
other person or otherwise and the keeping or storing of all property of Tenant
in the Building Complex and/or Premises shall be at the sole risk of Tenant.
15. INDEMNITIES.
A. Except to the extent covered by an insurance policy required to be
maintained under the terms of this Lease (whether or not such policy is
actually maintained), Tenant hereby agrees to indemnify, defend, and save
Landlord harmless of and from all liability, loss, damages, costs, or
expenses, including attorneys' fees, on account of injuries to the person
or property of Landlord or of any other tenant in the Building Complex or
to any other person rightfully in said Building Complex for any purpose
whatsoever, where the injuries are caused by the negligence, misconduct or
breach of this Lease by Tenant, Tenant's agents, servants, or employees or
of any other person entering upon the Premises under express or implied
invitation of Tenant or where such injuries are the result of the violation
of the provisions of this Lease by any of such persons. This indemnity
shall survive termination or earlier expiration of this Lease.
B. The terms of Addendum 4 regarding insurance are hereby incorporated
into this Lease. Tenant shall be required to maintain the insurance
required under the terms of Addendum 4. The limits of said insurance shall
not, under any circumstances, limit the liability of Tenant hereunder.
C. Except to the extent covered by an insurance policy required to be
maintained under the terms of this Lease (whether or not such policy is
actually maintained), Landlord hereby agrees to indemnify, defend, and save
Tenant harmless of and from all liability, loss, damages, costs, or
expenses, including attorneys' fees, on account of injuries to the person
or property of Tenant or of any other tenant in the Building Complex or to
any other person rightfully in said Building Complex for any purpose
whatsoever, where the injuries are caused by the negligence, misconduct or
breach of this Lease by Landlord, Landlord's agents, servants, or employees
or of any other person entering upon the Premises under express or implied
invitation of Landlord or where such injuries are the result of the
violation of the provisions of this Lease by any of such persons. This
indemnity shall survive termination or earlier expiration of this Lease.
16. SURRENDER AND NOTICE. Upon the expiration or other termination of the
term of this Lease, Tenant shall promptly quit and surrender to Landlord the
Premises broom clean, in good order and condition, ordinary wear and tear and
loss by fire or other casualty excepted unless due to the negligence of Tenant,
and Tenant shall remove all of its movable furniture and other effects and such
Alterations, as Landlord shall require Tenant to remove pursuant to Section 11
hereof. In the event Tenant fails to vacate the Premises on a timely basis as
required, Tenant shall be responsible to Landlord for all costs incurred by
Landlord as a result of such failure, including, but not limited to, any amounts
required to be paid to third parties who were to have occupied the Premises.
17. INSURANCE, CASUALTY, AND RESTORATION OF PREMISES.
A. Landlord shall maintain full replacement cost casualty insurance on
the shell and core of the Building, on the Premises to the extent of the
base tenant finish per the then-current standard allowance provided by
Landlord to tenants in the Building therein and in the Building Complex, in
such amounts, from such companies, and on such terms and conditions,
including loss of rental insurance for such period of time as Landlord
deems appropriate, from time to time.
B. If the Premises or the Building shall be so damaged by fire or
other casualty as to either (a) render the Premises wholly untenantable for
more than sixty (60) days, (b) prohibit or restrict access to the Premises
for more than sixty (60) days, or (c) render the Premises partially
untenantable and if such damage shall be so great that a competent
architect, in good standing, reasonably selected by Landlord shall certify
in writing to Landlord and Tenant within sixty (60) days of said casualty
that the Premises, with the exercise of reasonable diligence, cannot be
made fit for occupancy for the purposes used immediately prior to such
casualty within one hundred eighty (180) days from the happening thereof,
then this Lease shall cease and terminate from the date of the occurrence
of such damage or casualty and Tenant shall thereupon surrender to Landlord
the Premises and all interest therein hereunder and Landlord may reenter
and take possession of the Premises and remove Tenant therefrom. Tenant
shall pay rent, duly apportioned, up to the time of such termination of
this Lease (i.e., the date of occurrence of such casualty or damage).
C. If the Premises or the Building shall be so damaged by fire or
other casualty as to either (a) render the Premises wholly or partially
untenantable for sixty (60) days or less or (b) prohibit or restrict access
to the Premises for sixty (60) days or less, and a competent architect, in
good standing, reasonably selected by Landlord shall certify in writing to
Landlord and Tenant within on or prior to the expiration of such (60) day
period that the Premises, with the exercise of reasonable diligence, may be
made fit for occupancy for the purposes used immediately prior to such
casualty within one hundred eighty (180) days from the happening thereof,
then this Lease shall not terminate as set forth in subsection B above, and
Landlord shall, at its sole cost and expense, use commercially reasonable
efforts to repair the damage so done (to the extent of the base tenant
finish per the then-current standard allowance provided by Landlord to
tenants in the Building) on or prior to the expiration of such one hundred
eighty (180) day period. If Landlord shall not cause such repair to be
substantially completed by the expiration of such one hundred eighty (180)
day period, then Tenant shall have the right to terminate this Lease upon
thirty (30) days' written notice to Landlord, provided, however, if
Landlord then causes such repair to be substantially completed on or prior
to the expiration of such thirty (30) day period, Tenant shall be deemed to
have withdrawn Tenant's termination notice. Such repair shall be deemed to
be substantially completed when Landlord shall (i) have completed the
repairs to the standard aforesaid (other than so-called "punch list" items
to be completed promptly thereafter), (ii) Landlord shall have furnished
Tenant with a certificate of the architect certifying to the reasonable
satisfaction of Tenant that substantial completion as described above has
occurred, (iii) Landlord shall have furnished to Tenant a temporary or
permanent certificate of occupancy for the Premises and/or the Building,
and (d) Tenant shall have full access to the Premises to commence and
perform Tenant's repair and replacement work therein.
D. Landlord and Tenant hereby waive any and all rights of recovery
against the other, their officers, agents, and employees occurring out of
the use and occupancy of the Premises for loss or damage to their
respective real and/or personal property arising as a result of a casualty
or condemnation contemplated by this Section 17. Each of the parties shall,
upon obtaining the policies of insurance required by this Lease, notify the
insurance carrier that the foregoing waiver is contained in this Lease and
shall require such carrier to include an appropriate waiver of subrogation
provision in the policies.
E. The Rent shall ▇▇▇▇▇ during any period of repair and restoration,
but only to the extent of rental abatement insurance proceeds received by
Landlord.
18. CONDEMNATION. If (a) the entire Premises or substantially all of the
Premises, (b) any portion of the Building Complex which shall render the
Premises untenantable, (c) any portion of the Building Complex which shall
materially restrict access to the Premises, (d) any portion of the Building
Complex which shall materially limit the parking available to Tenant, or (e) any
portion of the Premises or the Building Complex which shall render it materially
and economically adverse to conduct Tenant's business in the Premises, shall be
taken by right of eminent domain or by condemnation or shall be conveyed in lieu
of any such taking, then this Lease, at the option of either Landlord or Tenant
exercised by either party giving notice to the other of such termination within
thirty (30) days after such taking or conveyance, shall forthwith cease and
terminate and the rent shall be duly apportioned as of the date of such taking
or conveyance. Tenant thereupon shall surrender the Premises and all interest
therein under this Lease to Landlord and Landlord may reenter and take
possession of the Premises or remove Tenant therefrom. If a part of the Premises
shall be so taken or appropriated or conveyed and neither party hereto shall
elect to terminate this Lease and the Premises have been damaged as a
consequence of such partial taking or appropriation or conveyance, Landlord
shall restore the Premises continuing under this Lease at Landlord's cost and
expense; provided, however, that Landlord shall not be required to repair or
restore any injury or damage to the property of Tenant or to make any repairs or
restoration of any Alterations or any Landlord's Work or any Tenant Work
installed on the Premises by or at the expense of Tenant. Thereafter, the
monthly Base Rent and Additional Rent to be paid under this Lease for the
remainder of the Term shall be proportionately reduced, such that thereafter the
amounts to be paid by Tenant shall be in the ratio that they are of the portion
of the Premises not so taken bears to the total area of the Premises prior to
such taking. In such event, Landlord shall receive (and Tenant shall assign to
Landlord upon demand from Landlord) any income, rent, award or any interest
therein which may be paid in connection with the exercise of such power of
eminent domain, and Tenant shall have no claim against Landlord for any part of
sum paid by virtue of such proceedings, whether or not attributable to the value
of the unexpired term of this Lease except that Tenant shall be entitled to
petition the condemning authority for the following, without reducing Landlord's
award: (i) the then unamortized cost of any Alterations or Landlord's Work or
Tenant Work paid for by Tenant from its own funds (as opposed to any allowance,
including the Allowance, provided by Landlord); (ii) the value of Tenant's trade
fixtures taken by the condemning authority; (iii) Tenant's relocation costs; and
(iv) Tenant's goodwill. Notwithstanding anything to the contrary contained in
this Section 18, if the temporary use or occupancy of any part of the Premises
shall be taken or appropriated under power of eminent domain during the Term,
this Lease shall be and remain unaffected by such taking or appropriation and
Tenant shall continue to pay in full all Monthly Base Rent and Additional
Charges payable hereunder by Tenant during the Term. In the event of any such
temporary appropriation or taking, Tenant shall be entitled to receive that
portion of any award which represents compensation for the use of or occupancy
of the Premises during the Term, and Landlord shall be entitled to receive that
portion of any award which represents the cost of restoration of the Premises
and the use and occupancy of the Premises after the end of the Term. If such
temporary taking is for a period longer than two hundred and ten (210) days and
unreasonably interferes with Tenant's use of the Premises or the Common Area,
then Tenant shall have the right to terminate the Lease. Notwithstanding
anything to the contrary contained in this Section 18, in the event there shall
be a taking of the parking area such that Landlord can no longer provide
sufficient parking to comply with this Lease, Landlord may substitute reasonably
equivalent parking in a location reasonably close to the Building. Landlord and
Tenant understand and agree that the provisions of this Section 18 are intended
to govern fully the rights and obligations of the parties in the event of a
Taking of all or any portion of the Premises.
19. DEFAULT BY TENANT.
A. Each one of the following events is herein referred to as an "Event
of Default":
(1)......Any failure by Tenant to pay the rent or any other
monetary sums required to be paid hereunder on the date such sums are
due and such failure continues for five (5) days shall be deemed a
default. Notwithstanding the foregoing, Tenant may cure a default
under this provision at any time prior to five (5) business days after
written notice of such default is given by Landlord exercising its
remedies as to such default under this Lease; provided, however,
Tenant shall not be entitled to more than two (2) notices of a
delinquency in payment during any calendar year and, if thereafter
during such calendar year any rent or other amounts owing hereunder
are not paid when due, an Event of Default shall be deemed to have
occurred immediately even though no notice thereof is given;
(2)......[intentionally omitted];
(3)......This Lease or the estate of Tenant hereunder shall be
transferred to or shall pass to or devolve upon any other person or
party except in the manner set forth in Section 13;
(4)......This Lease or the Premises or any part thereof shall be
taken upon execution or by other process of law directed against
Tenant or shall be taken upon or subject to any attachment at the
instance of any creditor of or claimant against Tenant and said
attachment shall not be discharged or disposed of (including by the
bonding over of same) within fifteen (15) days after the levy thereof;
(5)......The filing of any petition or the commencement of any
voluntary case or proceeding by the Tenant under any provision or
chapter of the Federal Bankruptcy Act, the Federal Bankruptcy Code, or
any other federal or state law relating to insolvency, bankruptcy, or
reorganization or the final adjudication that the Tenant is insolvent
or bankrupt or the entry of a final order for relief under the Federal
Bankruptcy Code with respect to Tenant;
(6)......The filing of any petition or the commencement of any
case or proceeding described in subsection (5) above against the
Tenant, unless such petition and all proceedings initiated thereby are
dismissed within ninety (90) days from the date of such filing; the
filing of an answer by Tenant admitting the allegations of any such
petition; the appointment of or taking possession by a custodian,
trustee or receiver for all or any assets of the Tenant, unless such
appointment is vacated or dismissed within ninety (90) days from the
date of such appointment;
(7)......The insolvency of the Tenant or the execution by the
Tenant of an assignment for the benefit of creditors; the convening by
Tenant of a meeting of its creditors, or any class thereof, for
purposes of effecting a moratorium upon or extension or composition of
its debts; or the failure of the Tenant generally to pay its debts as
they mature;
(8)......The admission in writing by Tenant, or any partner of
Tenant if Tenant is a partnership, that he is unable to pay his debts
as they mature or he is generally not paying his debts as they mature;
(9)......Tenant shall fail to take possession of the Premises on
or prior to the date thirty (30) days after the Commencement Date; or
(10).....Tenant shall fail to perform any of the other agreements
terms, covenants, or conditions hereof on Tenant's part to be
performed and such non-performance shall continue for a period of
thirty (30) days after written notice thereof by Landlord to Tenant
or, if such performance cannot be reasonably had within such thirty
(30) day period, Tenant shall not in good faith have commenced such
performance within such thirty (30) day period and shall not
diligently proceed therewith to completion.
B. Remedies of Landlord. If any one or more Event of Default shall
happen, then Landlord shall have the right at Landlord's election, then or
at any time thereafter, either:
(1)......(a) Without demand or notice, to reenter and take
possession of the Premises or any part thereof and repossess the same
as of Landlord's former estate and expel Tenant and those claiming
through or under Tenant and remove the effects of both or either,
without being deemed guilty of any manner of trespass and without
prejudice to any remedies for arrears of rent or preceding breach of
covenants or conditions. Should Landlord elect to reenter, as provided
in this subsection (1), or should Landlord take possession pursuant to
legal proceedings or pursuant to any notice provided for by law,
Landlord may, from time to time, without terminating this Lease, relet
the Premises or any part thereof, either alone or in conjunction with
other portions of the Building of which the Premises are a part, in
Landlord's or Tenant's name but for the account of Tenant, for such
term or terms (which may be greater or less than the period which
would otherwise have constituted the balance of the term of this
Lease) and on such conditions and upon such other terms (which may
include concessions of free rent and alteration and repair of the
Premises) as Landlord in its uncontrolled discretion, may determine
and Landlord may collect and receive the rents therefor. Landlord
shall in no way be responsible or liable for any failure to relet the
Premises, or any part thereof, or for any failure to collect any rent
due upon such reletting. No such reentry or taking possession of the
Premises by Landlord shall be construed as an election on Landlord's
part to terminate this Lease unless a written notice of such intention
be given to Tenant. No notice from Landlord hereunder or under a
forcible entry and detainer statute or similar law shall constitute an
election by Landlord to terminate this Lease unless such notice
specifically so states. Landlord reserves the right following any such
reentry and/or reletting to exercise its right to terminate this Lease
by giving Tenant such written notice, in which event the Lease will
terminate as specified in said notice.
(b) If Landlord elects to take possession of the Premises as
provided in this subsection (1) without terminating the Lease, Tenant
shall pay to Landlord (i) the rent and other sums as herein provided,
which would be payable hereunder if such repossession had not
occurred, less (ii) the net proceeds, if any, of any reletting of the
Premises after deducting all of Landlord's reasonable expenses
incurred in connection with such reletting, including, but without
limitation, all repossession costs, brokerage commissions, legal
expenses, attorneys' fees, expenses of employees, alteration,
remodeling, and repair costs and expenses of preparation for such
reletting. If, in connection with any reletting, the new lease term
extends beyond the existing term or the premises covered thereby
include other premises not part of the Premises, a fair apportionment
of the rent received from such reletting and the expenses incurred in
connection therewith, as provided aforesaid, will be made in
determining the net proceeds received from such reletting. In
addition, in determining the net proceeds from such reletting, any
rent concessions will be apportioned over the term of the new lease.
Tenant shall pay such amounts to Landlord monthly on the days on which
the rent and all other amounts owing hereunder would have been payable
if possession had not been retaken and Landlord shall be entitled to
receive the same from Tenant on each such day; or
(2)......To give Tenant written notice of intention to terminate
this Lease on the date of such given notice or on any later date
specified therein and, on the date specified in such notice, Tenant's
right to possession of the Premises shall cease and the Lease shall
thereupon be terminated, except as to Tenant's liability hereunder as
hereinafter provided, as if the expiration of the term fixed in such
notice were the end of the term herein originally demised. In the
event this Lease is terminated pursuant to the provisions of this
subsection (2), Tenant shall remain liable to Landlord for damages in
an amount equal to the rent and other sums which would have been owing
by Tenant hereunder for the balance of the term had this Lease not
been terminated less the net proceeds, if any, of any reletting of the
Premises by Landlord subsequent to such termination, after deducting
all Landlord's expenses in connection with such reletting, including,
but without limitation, the expenses enumerated above. Landlord shall
be entitled to collect such damages from Tenant monthly on the days on
which the rent and other amounts would have been payable hereunder if
this Lease had not been terminated and Landlord shall be entitled to
receive the same from Tenant on each such day. Alternatively, at the
option of Landlord, in the event this Lease is terminated, Landlord
shall be entitled to recover forthwith against Tenant as damages for
loss of the bargain and not as a penalty an amount equal to the worth
at the time of termination of the excess, if any, of the amount of
rent reserved in this Lease for the balance of the term hereof over
the then Reasonable Rental Value of the Premises for the same period
plus all amounts incurred by Landlord in order to obtain possession of
the Premises and relet the same, including reasonable attorneys' fees,
reletting expenses, alterations and repair costs, brokerage
commissions and all other like amounts. It is agreed that the
"Reasonable Rental Value" shall be the amount of rental which Landlord
can obtain as rent for the remaining balance of the then existing Term
to a third party, taking into account any rent concessions, credits,
and other allowances available to third party tenants of similar
properties similarly located.
C. Cumulative Remedies. Suit or suits for the recovery of the rents
and other amounts and damages set forth hereinabove may be brought by
Landlord, from time to time, at Landlord's election, and nothing herein
shall be deemed to require Landlord to await the date whereon this Lease or
the term hereof would have expired had there been no such default by Tenant
or no such termination, as the case may be. Each right and remedy provided
for in this Lease shall be cumulative and shall be in addition to every
other right or remedy provided for in this Lease or now or hereafter
existing at law or in equity or by statute or otherwise, including, but not
limited to, suits for injunctive relief and specific performance. The
exercise or beginning of the exercise by Landlord of any one or more of the
rights or remedies provided for in this Lease or now or hereafter existing
at law or in equity or by statute or otherwise shall not preclude the
simultaneous or later exercise by Landlord of any or all other rights or
remedies provided for in this Lease or now or hereafter existing at law or
in equity or by statute or otherwise. All such rights and remedies shall be
considered cumulative and non-exclusive. All reasonable costs incurred by
Landlord in connection with collecting any rent or other amount and damages
owing by Tenant pursuant to the provisions of this Lease, or to enforce any
provision of this Lease, shall also be recoverable by Landlord from Tenant.
Further, if an action is brought pursuant to the terms and provisions of
the Lease, the prevailing party in such action shall be entitled to recover
from the other party any and all reasonable attorneys' fees incurred by
such prevailing party in connection with such action.
D. No Waiver. No failure by Landlord to insist upon the strict
performance of any agreement, term, covenant or condition hereof or to
exercise any right or remedy consequent upon a breach thereof and no
acceptance of full or partial rent during the continuance of any such
breach shall constitute a waiver of any such breach or of such agreement,
term, covenant, or condition. No agreement, term, covenant, or condition
hereof to be performed or complied with by Tenant and no breach thereof
shall be waived, altered, or modified, except by written instrument
executed by Landlord. No waiver of any breach shall affect or alter this
Lease but each and every agreement, term, covenant, and condition hereof
shall continue in full force and effect with respect to any other then
existing or subsequent breach thereof. Notwithstanding any termination of
this Lease, the same shall continue in force and effect as to any
provisions which require observance or performance by Landlord or Tenant
subsequent to such termination.
E. Late Payment Charge. Any rents or other amounts owing hereunder
which are not paid within five (5) days after the date they are due shall
thereafter bear interest at the rate of three percentage points over the
Prime Rate then being charged by ▇▇▇▇▇ Fargo Bank, Colorado, or its
successor, to its most credit-worthy customers on an unsecured basis for
short term loans (the "Prime Rate") or the highest rate permitted by
applicable usury law, whichever is lower, until paid. Further, in the event
any rents or other amounts owing hereunder are not paid within five (5)
days after written notice, Landlord and Tenant agree that Landlord will
incur additional administrative expenses, the amount of which will be
difficult if not impossible to determine. Accordingly, Tenant shall pay to
Landlord an additional, one-time late charge for any such late payment in
the amount of five percent (5%) of such payment. Any amounts paid by
Landlord to cure any defaults of Tenant hereunder, which Landlord shall
have the right but not the obligation to do, shall, if not repaid by Tenant
within five (5) days of demand by Landlord, thereafter bear interest at the
rate of three percentage points over the Prime Rate or the highest rate
permitted by applicable usury law, whichever is lower, until paid.
F. WAIVER OF JURY TRIAL. TENANT AND LANDLORD HEREBY WAIVE (TO THE
EXTENT ALLOWED BY LAW) AND ANY RIGHTS TO A TRIAL BY JURY IN SUIT OR SUITS
BROUGHT TO ENFORCE ANY PROVISION OF THIS LEASE OR ARISING OUT OF OR
CONCERNING THE PROVISIONS OF THIS LEASE.
20. DEFAULT BY LANDLORD. In the event of any alleged default on the part of
Landlord hereunder, Tenant shall give written notice to Landlord in the manner
herein set forth and shall afford Landlord a reasonable opportunity to cure any
such default (not to exceed thirty (30) days unless (a) in the case of an
emergency constituting a threat to human health, life or safety or an imminent
loss of or damage to property in which case such cure shall such be immediately
instituted by Landlord, and diligently prosecuted to completion, or (ii) in the
case of a default not susceptible of cure within thirty (30) days if such cure
is diligently pursued, in which case Landlord shall have a reasonable time
thereafter to complete such cure provided that Landlord diligently pursues such
cure). Notice to Landlord of any such alleged default shall be ineffective
unless notice is simultaneously delivered to any holder of a Mortgage and/or
Trust Deed affecting all or any portion of the Building Complex ("Mortgagees")
that has been identified as such in a writing delivered to Tenant, as hereafter
provided. Tenant agrees to give all Mortgagees, by certified mail, return
receipt requested, a copy of any notice of default served upon Landlord,
provided that prior to such notice Tenant has been notified, in writing by
Landlord or by way of receipt of actual notice of an Assignment of Rents and
Leases, or similar assignment, of the address of such Mortgagees. Tenant further
agrees that if Landlord shall have failed to cure such default within the time
provided for in this Lease, then (other than in the case of an emergency
constituting a threat to human health, life or safety or an imminent loss of or
damage to property) the Mortgagees shall have an additional thirty (30) days
within which to cure such default or, if such default cannot be cured within
that time, then such additional time as may be necessary, if, within such thirty
(30) days, any Mortgagee has commenced and is diligently pursuing the remedies
necessary to cure such default (including, but not limited to, commencement of
foreclosure proceedings, if necessary to effect such cure), in which event this
Lease shall not be terminated while such remedies are being so diligently
pursued. In no event will Landlord or any Mortgagee be responsible for any
consequential damages incurred by Tenant as a result of any default, including,
but not limited to, lost profits or interruption of business as a result of any
alleged default by Landlord hereunder.
21. SUBORDINATION AND ATTORNMENT.
A. This Lease, at Landlord's option, shall be subordinate to any
mortgage or deed of trust (now or hereafter placed upon the Building
Complex, or any portion thereof), including any amendment, modification, or
restatement of any of such documents, and to any and all advances made
under any mortgage or deed of trust and to all renewals, modifications,
consolidations, replacements, and extensions thereof. Tenant agrees that
with respect to any of the foregoing documents, no documentation, other
than this Lease, shall be required to evidence such subordination,
provided, however, Landlord shall use its commercially reasonable efforts
to obtain a commercially reasonable non-disturbance and attornment
agreement in form reasonably acceptable to Tenant in consideration thereof
within ninety (90) days after the Commencement Date.
B. If any holder of a mortgage or deed of trust shall elect to have
this Lease superior to the lien of the holder's mortgage or deed of trust
and shall give written notice thereof to Tenant, this Lease shall be deemed
prior to such mortgage or deed of trust, whether this Lease is dated prior
or subsequent to the date of said mortgage or deed of trust or the date of
recording thereof.
C. In confirmation of such subordination or superior position, as the
case may be, Tenant agrees to execute such documents as may be reasonably
required by Landlord or its Mortgagee to evidence the subordination of its
interest herein to any of the documents described above, or to evidence
that this Lease is prior to the lien of any mortgage or deed of trust, as
the case may be, and failing to do so within ten (10) days after written
demand, Tenant does hereby make, constitute, and irrevocably appoint
Landlord as Tenant's attorney-in-fact and in Tenant's name, place and
stead, to do so.
D. Tenant hereby agrees to attorn to all successor owners of the
Building Complex, whether or not such ownership is acquired as a result of
a sale, through foreclosure of a deed of trust or mortgage, or otherwise,
subject to the non-disturbance requirement set forth in subsection A above.
22. REMOVAL OF TENANT'S PROPERTY.
All office supplies, movable furniture, movable equipment and personal
effects of Tenant not removed from the Premises upon the vacation or abandonment
thereof or upon the termination of this Lease for any cause whatsoever shall
conclusively be deemed to have been abandoned and may be appropriated, sold,
stored, destroyed, or otherwise disposed of by Landlord without notice to Tenant
or any other person and without obligation to account therefor and Tenant shall
pay Landlord all reasonable expenses incurred in connection with the disposition
of such property.
23. HOLDING OVER: TENANCY MONTH-TO-MONTH.
If, after the expiration of this Lease, Tenant shall remain in possession
of the Premises and continue to pay rent, and Landlord shall accept such rent,
without any express written agreement as to such holding over, then such holding
over shall be deemed and taken to be a holding upon a tenancy from
month-to-month, subject to all the terms and conditions hereof on the part of
Tenant to be observed and performed and at a monthly rent equivalent to one
hundred fifty percent (150%) of the monthly installments paid by Tenant
immediately prior to such expiration or the Current Market Rental Rate for the
Premises, whichever is greater. All such rent shall be payable in advance on the
same day of each calendar month. Such month-to-month tenancy may be terminated
by either party upon ten (10) days' notice prior to the end of any such monthly
period. Nothing contained herein shall be construed as obligating Landlord to
accept any rental tendered by Tenant after the expiration of the term hereof or
as relieving Tenant of its liability pursuant to Section 16 and any holdover
without Landlord's consent shall be deemed a default hereunder entitling
Landlord to all of its rights and remedies set forth in Section 19 above,
including, without limitation, its right to recover consequential damages
resulting from said holdover.
24. PAYMENTS AFTER TERMINATION.
No payments of money by Tenant to Landlord after the termination of this
Lease, in any manner, or after giving of any notice (other than a demand for
payment of money) by Landlord to Tenant shall reinstate, continue, or extend the
term of this Lease or affect any notice given to Tenant prior to the payment of
such money, it being agreed that after the service of notice or the commencement
of a suit or other final judgment granting Landlord possession of the Premises,
Landlord may receive and collect any sums of rent due or any other sums of money
due under the terms of this Lease or otherwise exercise Landlord's rights and
remedies hereunder and the payment of such sums of money, whether as rent or
otherwise, shall not waive said notice or in any manner affect any pending suit
or judgment theretofore obtained.
25. STATEMENT OF PERFORMANCE.
Each of Tenant and Landlord agrees at any time and from time to time, upon
not less than ten (10) days' prior written request by the other party, to
execute, acknowledge, and deliver to the other party a statement in writing
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
modified and stating the modifications), that there have been no defaults
(which, as it relates to the non-certifying party, shall be to the best
knowledge only of the certifying party) thereunder by Landlord or Tenant (or, if
there have been defaults, setting forth the nature thereof), the date to which
the rent and other charges have been paid in advance, if any, and such other
information as the non-certifying party may reasonably request. It is intended
that any such statement delivered to Landlord pursuant to this Section 25 may be
relied upon by any prospective purchaser of all or any portion of Landlord's
interest herein or a holder of any mortgage or deed of trust encumbering the
Building Complex. Tenant's or Landlord's failure to deliver such statement
within such time shall be conclusive upon Tenant or Landlord (as the case may
be) that: (i) this Lease is in full force and effect, without modification
except as may be represented by Landlord or Tenant (as the case may be); (ii)
there are no uncured defaults in Landlord's or Tenant's (as the case may be)
performance; and (iii) not more than one (1) month's rent has been paid in
advance. Further, upon written request, Tenant will supply to Landlord a
corporate or partnership resolution, as the case may be, certifying that the
party signing said statement of Tenant is properly authorized to do so.
26. MISCELLANEOUS.
A. The term "Landlord" as used in this Lease, so far as covenants or
obligations on the part of Landlord are concerned, shall be limited to mean
and include only the owner or owners of the Building Complex at the time in
question and, in the event of any transfer or transfers of the title
thereto, Landlord herein named (and in the case of any subsequent transfers
or conveyances, the then grantor) shall be automatically released, from and
after the date of such transfer or conveyance, of all liability as respects
the performance of any covenants or obligations on the part of Landlord
contained in this Lease thereafter to be performed, provided that any funds
in the hands of Landlord or the then grantor at the time of such transfer
in which Tenant has an interest shall be turned over to the grantee and any
amount then due and payable to Tenant by Landlord or the then grantor under
any provisions of this Lease shall be paid to Tenant.
B. The termination or mutual cancellation of this Lease shall not work
a merger, and such termination or mutual cancellation shall, at the option
of Landlord, either terminate all subleases and subtenancies or operate as
an assignment to Landlord of any or all such subleases or subtenancies.
C. The Tenant agrees that, for the purposes of completing or making
repairs or alterations in any portion of the Building, Landlord may use one
or more of the street entrances, the halls, passageways, and elevators of
the Building provided that same shall not materially and adversely affect
Tenant's access to or use of the Premises.
D. This Lease shall be construed as though the covenants herein
between Landlord and Tenant are independent and not dependent and Tenant
shall not be entitled to any setoff of the rent or other amounts owing
hereunder against Landlord if Landlord fails to perform its obligations set
forth herein; provided, however, the foregoing shall in no way impair the
right of Tenant to commence a separate action against Landlord for any
violation by Landlord of the provisions hereof so long as notice is first
given to Landlord and any holder of a mortgage or deed of trust covering
the Building Complex or any portion thereof and an opportunity granted to
Landlord and such holder to correct such violation as provided in Section
20 above.
E. If any clause or provision of this Lease is illegal, invalid, or
unenforceable under present or future laws effective during the term of
this Lease, then and in that event it is the intention of the parties
hereto that the remainder of this Lease shall not be affected thereby and
it is also the intention of the parties to this Lease that in lieu of each
clause or provision of this Lease that is illegal, invalid, or
unenforceable there be added as a part of this Lease a clause or provision
as similar in terms to such illegal, invalid, or unenforceable clause or
provision as may be possible and be legal, valid, and enforceable.
F. The caption of each paragraph is added as a matter of convenience
only and shall be considered of no effect in the construction of any
provision or provisions of this Lease.
G. Except as herein specifically set forth, all terms, conditions, and
covenants to be observed and performed by the parties hereto shall be
applicable to and binding upon their respective heirs, administrators,
executors, and assigns. The terms, conditions, and covenants hereof shall
also be considered to be covenants running with the land to the fullest
extent permitted by law.
H. Tenant and the party executing this Lease on behalf of Tenant
represent to Landlord that such party is authorized to do so by requisite
action of the board of directors or partners, as the case may be, and
agree, upon request, to deliver to Landlord a resolution or similar
document or opinion of counsel to that effect.
I. If there are more than one entity or person which or who are the
Tenant under this Lease, the obligations imposed upon Tenant under this
Lease shall be joint and several.
J. No act or thing done by Landlord or Landlord's agents during the
term hereof, including, but not limited to, any agreement to accept
surrender of the Premises or to amend or modify this Lease, shall be deemed
to be binding on Landlord, unless such act or thing shall be by a partner
or officer of Landlord, as the case may be, or a party designated in
writing by Landlord as so authorized to act. The delivery of keys to
Landlord, or Landlord's agents, employees, or officers shall not operate as
a termination of this Lease or a surrender of the Premises. No payment by
Tenant or receipt by Landlord of a lesser amount than the monthly rent and
all other amounts owing, as herein stipulated, shall be deemed to be other
than on account of the earliest stipulated rent or other amounts nor shall
any endorsement or statement on any check or any letter accompanying any
check or payment as rent be deemed an accord and satisfaction and Landlord
may accept such check or payment without prejudice to Landlord's right to
recover the balance of such rent or pursue any other remedy available to
Landlord.
K. Landlord shall have the right at any time to change the name of the
Building, to increase the size of the Building Complex by adding additional
real property thereto, to construct other buildings or improvements on any
portion of the Building Complex or to change the location and/or character
of or to make alterations of or additions to the Building Complex. In the
event any such additional buildings are constructed or Landlord increases
the size of the Building Complex, Landlord and Tenant shall execute an
Amendment to Lease which incorporates such modifications, additions, and
adjustments to those provisions of the Lease affected by such changes, if
necessary (e.g., Rentable Area, Tenant's Pro Rata Share, etc.). Tenant
shall not use the Building's name for any purpose other than as a part of
its business address. Any use of such name in the designation of Tenant's
business shall constitute a default under this Lease.
L. Tenant covenants and agrees that no diminution of light, air, or
view of or from the Building or any other building (whether or not
constructed or owned by Landlord) shall entitle Tenant to any reduction of
rent or other charges under this Lease, result in any liability of Landlord
to Tenant, or in any way affect this Lease or Tenant's obligations
hereunder.
M. Notwithstanding anything to the contrary contained herein,
Landlord's liability under this Lease shall be limited to Landlord's
interest in the Building Complex.
N. Tenant acknowledges and agrees that it has not relied upon any
statements, representations, agreements, or warranties by Landlord, it
agents or employees, except such as are expressed herein and that no
amendment or modification of this Lease shall be valid or binding unless
expressed in writing and executed by the parties hereto in the same manner
as the execution of this Lease.
O. Tenant agrees to make such modification and amendments of this
Lease as may hereafter be required to conform to any lender's requirements,
so long as such modifications or amendments will not increase Tenant's (and
Guarantor's) obligations hereunder or materially alter its rights as set
forth herein.
P. Submission of this instrument for examination or signature by
Tenant does not constitute a reservation of or an option for lease, and it
is not effective as a lease or otherwise until execution and delivery by
both Landlord and Tenant.
Q. Nothing set forth in this Lease shall be deemed to grant Landlord a
right to relocate Tenant or the Premises at any time during the Term.
27. AUTHORITIES FOR ACTION AND NOTICE.
A. Except as herein otherwise provided, Landlord may act in any manner
provided for herein by and through Landlord's building manager or any other
person who shall from time to time be designated in writing by Landlord to
Tenant. As of the date hereof, Landlord's building manager is CB ▇▇▇▇▇▇▇
▇▇▇▇▇.
B. All notices, demands, statements or communications required or
permitted to be given to Landlord hereunder shall be in writing and shall
be deemed duly served when actually received by Landlord at the addresses
listed below. All notices, demands, statements or communications required
to be given to Tenant hereunder shall be in writing and shall be deemed
duly served when actually received by Tenant at the addresses listed below.
All notices, either to Tenant or to Landlord shall be sent either by the
United States mail, postage prepaid, certified or registered, return
receipt requested, or by nationally recognized overnight carrier, pre-paid
next business day service, proof of delivery required. Either party shall
have the right to designate in writing, served as above provided, a
different address to which notice is to be mailed.
If to Landlord: Equastone Views, LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
With a copy to: Sheppard, Mullin, ▇▇▇▇▇▇▇ & Hampton LLC
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇, Esq.
If to Tenant: c/o Infocrossing, Inc.
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
With a copy to: With a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Euchung Ung
28. RULES AND REGULATIONS.
It is further agreed that the rules and regulations set forth on Exhibit D
attached hereto shall be and are hereby made a part of this Lease and Tenant
agrees that Tenant's employees and agents or any others permitted by Tenant to
occupy or enter the Premises will at all times abide by said rules and
regulations. A breach of any of such rules or regulations shall be deemed a
default under this Lease and Landlord shall have all remedies as set forth in
Section 19 hereof subject to applicable notice, grace and cure periods.
29. PARKING.
Tenant shall be provided non-assigned surface parking in the Building
parking lots at a ratio of four (4) spaces per one thousand (1,000) rentable
square feet of office space leased. Based upon leasing 35,477 rentable square
feet, this ratio equates to one hundred forty-one (141) spaces, all of which
will be provided at no expense to Tenant during the Term. In the event a parking
structure serving the Building is constructed at the Project, Landlord shall
offer to Tenant, Tenant's prorata share (based upon the sum of the Rentable Area
then leased by Tenant divided by the rentable square feet then comprising the
Building) of the number of spaces Landlord makes available in such parking
structure for use by tenants in the Building on such terms as are provided to
other tenants of the Building.
30. SIGNAGE.
At all times during the Term, Landlord, at Landlord's sole cost and
expense, shall provide Tenant with one (1) Building Standard suite
identification sign per floor at the entrance to the Premises and add Tenant's
name and suite number to the Building directory in the lobby. In addition to the
foregoing, at all times during the Term while Tenant continues to occupy the
entirety of the original premises, Landlord shall provide Tenant with one
pre-cut tenant sign panel on each side of the shared exterior monument signage
(on the monument sign located in the median of the entry drive off Ridge
Parkway). All signage shall be to Building Standard and the interior signage
shall be have text equivalent in size to the text provided other tenants in the
Building and be otherwise consistent with signage provided other tenants in the
Building. The cost of the exterior monument signage shall be paid by Tenant;
provided however, such costs may be included as part of the Tenant Work.
31. BROKERAGE.
Tenant hereby represents and warrants that Tenant has not employed any
broker in regard to this Lease and that Tenant has no knowledge of any broker
being instrumental in bringing about this Lease transaction except CB ▇▇▇▇▇▇▇
▇▇▇▇▇, Inc. and MRH Real Estate Services, Inc., which have acted as Tenant's
broker (collectively, "Tenant's Broker") and CB ▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc., which has
acted as Landlord's broker ("Landlord's Broker"), each of which Landlord agrees
to pay a commission (collectively, the "Brokerage Commission") pursuant to and
subject to the terms of separate written agreements. Landlord and Tenant each
shall indemnify the other against any expense incurred by the indemnified party
as a result of any claim for brokerage or other commissions made by any other
broker, finder, or agent, whether or not meritorious, employed by the other
party or claiming by, through, or under such party. Tenant acknowledges that
Landlord shall not be liable for any representations by any broker, including
without limitation Landlord's Broker and Tenant's Broker, regarding the
Premises, the Building, or this Lease.
32. TIME OF ESSENCE.
Time is of the essence herein.
33. LOCKERS.
On or before the date that is ninety (90) days after the Commencement Date,
Landlord shall construct men's and women's locker rooms (including showers) on
the first (1st) and fourth (4th) floor of the Building, which locker rooms shall
be made accessible, on a non-exclusive basis, to Tenant and other tenants in the
Building at all times that the Building is accessible to Tenant and its
employees and invitees without charge or rent; provided that all costs
associated with maintaining and repairing such locker rooms shall be payable as
an Operating Expense pursuant to the terms of Section 5. As of the date of
construction has been completed with respect thereto, each locker room shall be
ADA-compliant and otherwise in compliance with Applicable Law.
34. REPRESENTATIONS AND WARRANTIES.
Each party represents to the other party that (a) each party is duly
organized and in good standing in the jurisdiction of its organization, and each
party is duly qualified to do business and in good standing in the State of
Colorado, (b) the person executing this Lease on behalf of such party has the
requisite power and authority to execute this Lease on behalf of such party and
to bind such party to the duties and obligations set forth in this Lease, and
(c) to such party's knowledge, there are no agreements (including leases),
judgments, or orders restricting such party's right to enter into this Lease or
to perform the obligations of such party under this Lease.
35. ENVIRONMENTAL REPRESENTATIONS AND COVENANTS.
A. In order to induce Tenant to enter into this Lease, Landlord
represents to Tenant that, to the best of Landlord's knowledge, there are
no Hazardous Substances in, on or under the Real Property.
B. Landlord shall indemnify, defend and hold harmless Tenant, its
successors and assigns, its affiliates, parents, subsidiaries and
subtenants, Tenant's managers, members, agents, employees, or contractors,
and all partners, trustees, shareholders, agents, directors, officers and
employees of any of the foregoing from and against any and all claims,
demands, penalties, fines, liabilities, settlements, suits, damages,
losses, injuries, costs and expenses of whatever kind or nature, known or
unknown, contingent or otherwise (including, without limitation, attorneys'
and consultants' fees and disbursements and investigation and laboratory
fees) arising out of, and in any way related to the storage, use,
possession, presence, disposal, release, or threat of release of any
Hazardous Substance as a result of any act or omission of Landlord,
Landlord's managers, members, agents, employees, or contractors. This
indemnity shall survive termination or earlier expiration of this Lease.
C. Tenant shall indemnify, defend and hold harmless Landlord, its
successors and assigns, its affiliates, parents, subsidiaries and
subtenants, Landlord's managers, members, agents, lenders, employees, or
contractors, and all partners, trustees, shareholders, agents, directors,
officers and employees of any of the foregoing from and against any and all
claims, demands, penalties, fines, liabilities, settlements, suits,
damages, losses, injuries, costs and expenses of whatever kind or nature,
known or unknown, contingent or otherwise (including, without limitation,
attorneys' and consultants' fees and disbursements and investigation and
laboratory fees) arising out of, and in any way related to the storage,
use, possession, presence, disposal, release, or threat of release of any
Hazardous Substance as a result of any act or omission of Tenant, Tenant's
managers, members, agents, employees, or contractors. This indemnity shall
survive termination or earlier expiration of this Lease.
D. For purposes of this Lease:
"Environmental Laws" shall mean all applicable federal, state, county,
and local statutes, laws, regulations, rules, ordinances, codes, standards,
guidelines, orders, licenses and permits of any Governmental Authorities
relating to environmental, health or safety matters, including by way of
illustration and not by way of limitation, the Clean Air Act, the Federal
Water Pollution Control Act of 1972, the Solid Waste Disposal Act of 1970,
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, the Resource Conservation and Recovery Act of 1970, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, the Toxic
Substances Control Act and any state and local equivalents of the preceding
laws, including, but not limited to Connecticut General Statute ss. 22a-1
et seq., including any amendments or extensions thereof and all future
similar statutes, laws, rules, regulations, and directives and any rules,
regulations, standards or guidelines issued pursuant to any of said
Environmental Laws.
"Hazardous Substances" shall mean any hazardous or toxic chemical,
waste, byproduct, pollutant, contaminant, compound, product or substance,
including, without limitation, asbestos, polychlorinated biphenyls,
petroleum (including crude oil or any fraction thereof), and any material
the exposure to, or manufacture, possession, presence, use, generation,
storage, transportation, treatment, release, disposal, abatement, cleanup,
removal remediation or handling of which is now, or may in the future be,
prohibited, controlled or regulated by any Environmental Laws.
36. ADDENDA. Addenda One, Two, Three and Four attached hereto are hereby
incorporated by reference into this Lease. To the extent of a conflict between
the terms of the Addenda and the terms of this Lease, the terms of the Addenda
shall control.
37. TELECOMMUNICATIONS.
A. Certain Definitions. The following definitions are applicable to
this Section 37:
(i)......"Telecom Equipment" means telephone, internet and any
other communications equipment and any technological evolution or
replacement thereof.
(ii)....."Connections" means any wires, cables, fiber optic
lines, antennas, switches and other equipment or infrastructure
located in the Building, but outside the Premises, that are installed
by or on behalf of Tenant for, or related to, the operation of other
Telecom Equipment. All Connections are also Telecom Equipment.
(iii)...."Telecom Provider" means a provider of Telecom Equipment
or services using Telecom Equipment. As of the date hereof, the
Telecom Provider means Qwest, Inc.
(iv)....."Telecom Services" means services provided by a Telecom
Provider using Telecom Equipment. As of the date hereof, the Telecom
Services means the services set forth on Exhibit G.
(v)......"MPOE" means Minimum Point of Entry as defined by the
FCC, and the LLDP (Local Loop demarcation Point). The MPOE is the main
point of physical and logical demarcation between the Local Exchange
Carrier and the customer premises (the building)."
B. New Provider Installations.
(i)......Tenant may not utilize the services of a Telecom
Provider whose equipment is not then servicing the Building, nor may
Tenant require or request that a Telecom Provider materially expand
the Telecom Services or Connections it currently provides or has
provided in or to the Building, without first securing the prior
written approval of Landlord. Without limitation of the foregoing,
Landlord may refuse to give its approval with respect to a new Telecom
Provider, or the material expansion of the Telecom Services or
Connections provided by or installed by an existing Telecom Provider
in the Building, if Landlord determines, in Landlord's sole
discretion, that there is insufficient space in the Building for the
placement of the Telecom Provider's Telecom Equipment.
(ii).....Tenant shall use its commercially reasonable efforts to
cause Tenant's Telecom Provider to comply with the requirements of
Landlord's form license agreement regarding the installation and/or
operation of the Telecom Provider's Telecom Equipment in the Building
and outside the Premises prior to such Telecom Provider commencing any
installation or other work in the Building. Landlord will bear no
responsibility for (and the Commencement Date will not be affected by)
delays in installing Telecom Equipment resulting from failure of
Tenant's Telecom Provider comply with terms of such form license
agreement prior to the commencement of any installation or other work
in the Building; and
(iii)....Both Tenant and its Telecom Provider(s) will comply with
the Telecommunications Guidelines attached hereto as Exhibit G,
together with any other of Landlord's requirements regarding use of
the existing Building conduits and pipes or use of contractors.
C. Tenant will not utilize any Telecom Equipment (other than usual and
customary cellular telephones, IP Telephones, 802.xx wireless access and
wire-based telephone and internet technology or similar telephones),
including antennae and satellite dishes, within the Premises and/or within
or on the Building without Landlord's prior written consent. Such consent
may be granted, conditioned or withheld in Landlord's sole discretion, and
may be conditioned in such a manner so as to protect Landlord's financial
interests and the interests of the Building. In addition, Landlord may
require that Tenant execute a written license agreement concerning any such
Telecom Equipment, in form and substance acceptable to Landlord, in its
sole discretion.
D. Until Tenant's Telecom Provider or Tenant, as the case may be,
executes the appropriate written agreement with Landlord, Landlord shall
have no obligation to reserve space for Tenant for Telecom Equipment
anywhere in the Building. After the appropriate written agreement has been
executed, Landlord shall provide reasonable accommodation to the primary
local exchange carrier in the MPOE of the Building (i.e., the
telecommunications closet located on the first floor of the Building) to
accommodate fiber and copper termination equipment to enable voice and data
networking for the Premises which cannot otherwise be reasonably
accommodated in the telecommunications closet located on the second floor
of the Building.
E. Tenant will provide Landlord with plans and specifications of the
installation, modification or removal of the applicable Telecom Equipment,
and Landlord will have approved such plans and specifications, before any
installation, modification or removal of such Telecom Equipment commences.
Within thirty (30) days after installation, modification or removal of any
Telecom Equipment, Tenant will, at its expense, prepare or have prepared
and delivered to Landlord reproducible as-built plans and drawings (in form
and detail reasonably satisfactory to Landlord) of the location of all
Telecom Equipment in the MPOE serving the Premises and located in the
Building. Upon request by Landlord, from time to time, Tenant will promptly
deliver copies of the latest MPOE as-built plans and drawings to Landlord.
F. Tenant acknowledges and agrees that all Telecom Equipment will be
obtained, installed, maintained, repaired, replaced and removed at the sole
expense of Tenant. Unless Landlord otherwise requests or consents in
writing, all of Tenant's Telecom Equipment (other than any Connections)
will be and remain solely in Tenant's Premises, in accordance with the
Telecommunications Guidelines attached hereto on Exhibit G, together with
any other reasonable rules and regulations adopted by Landlord from time to
time. Landlord will have no responsibility for the operation, maintenance,
repair, replacement or removal of Tenant's Telecom Equipment, including,
without limitation, Tenant's Connections. Tenant agrees that, to the extent
any Telecom Services are interrupted, curtailed or discontinued, Landlord
will have no obligation or liability with respect thereto, and it will be
the sole obligation of Tenant at its expense to obtain substitute Telecom
Services. No approval by Landlord under this Section 37 will be deemed any
kind of warranty or representation by Landlord, including, without
limitation, any warranty or representation as to the suitability,
competence or financial strength of any Telecom Provider or the quality or
fitness for any particular purpose of any Telecom Equipment or Telecom
Services. Landlord does not make, and expressly disclaims, any
representation, warranty or endorsement regarding or relating to any
Telecom Provider, Telecom Services or Telecom Equipment.
G. Landlord will have the right to interrupt Tenant's Telecom Services
or disable Tenant's Telecom Equipment in the event of emergency or as
necessary in connection with repairs to the Building or installation of
Telecom Equipment for other tenants or occupants of the Building. Landlord
will provide Tenant with reasonable prior notice of any such interruption
or disabling, except in the event of an emergency, in which case Landlord
will provide Tenant as much advance notice as reasonably possible. Landlord
will exercise commercially reasonable efforts to perform any scheduled
interruptions during non-business hours.
H. In the event that Telecom Equipment, including, without limitation,
wiring, cabling or satellite and antenna equipment of any type installed by
or at the request of Tenant within the Premises, on the roof or elsewhere
within or on the Building causes interference to equipment (including
Telecom Equipment) used by another party, Tenant will be responsible for,
and will protect, indemnify, defend and hold harmless Landlord, its
partners, managers, members, officers, directors, subsidiaries, affiliates,
lenders, employees and agents and Property Manager, from and against all
liability related to such interference. Tenant will use its best efforts,
and will cooperate with Landlord and other parties, to immediately
eliminate such interference. In the event that Tenant is unable to
eliminate such interference within twenty-four (24) hours, Tenant will
promptly substitute alternative equipment. If such interference persists
after such alternative equipment is installed, Tenant will discontinue the
use of its Telecom Equipment as necessary to discontinue such interference,
and, at Landlord's discretion, remove such Telecom Equipment according to
specifications required by Landlord.
I. Prior to the expiration or earlier termination of the Term, Tenant
will remove any and all Telecom Equipment installed in the Premises or
elsewhere in the Building by or on behalf of Tenant, including all
Connections, at Tenant's sole cost or, if Landlord so elects, Landlord may
perform such removal at Tenant's sole cost, with the cost thereof to be
paid to Landlord as Additional Rent. Such costs may also include, if Tenant
has not complied with Section 37(E), location of such Telecom Equipment
and/or preparation of as-built plans or drawings of the Telecom Equipment
serving the Premises and located in the Building. Landlord will have the
right, however, upon written notice to Tenant, given prior to the
expiration or earlier termination of the Term, to require Tenant to abandon
and leave in place, without additional payment to Tenant or credit against
Rent, any and all Connections or selected components thereof, whether
located in the Premises or elsewhere in the Building. The terms and
conditions of this Section 37(I) will survive expiration or earlier
termination of the Lease.
J. Notwithstanding any provision of the preceding paragraphs to the
contrary, the provisions of this Lease, including this Section 37, may be
enforced solely by Tenant and Landlord, are not for the benefit of any
other party (including any subtenant), and specifically, but without
limitation, no Telecom Provider will be deemed a third party beneficiary of
this Lease or this Section 37.
K. Notwithstanding the foregoing, Landlord hereby approves Qwest, Inc.
as the Telecom Provider and the services set forth on Exhibit H as the
Telecom Services to be provided thereby.
38. GUARANTY OF LEASE. Concurrently with the execution of this Lease by
Tenant, INFOCROSSING, INC., a Delaware corporation ("Infocrossing"), shall
execute and deliver a Guaranty in the form attached hereto as Exhibit F to
Landlord (the "Guaranty"). In the event of any default or breach of Tenant's
obligations under this Lease, Landlord may proceed directly against Guarantor
without first exhausting Landlord's remedies against Tenant or any security held
by Landlord. In addition to all other events of Tenant default hereunder, the
parties acknowledge and agree that the Guarantor's guaranty of this Lease
comprises part of the material consideration for Landlord's agreement to this
Lease, and the following shall also constitute events of default under this
Lease: (a) the termination of Guarantor's liability with respect to this Lease
other than in accordance with the terms of the Guaranty; (b) Guarantor's
becoming insolvent or the subject of a bankruptcy filing; or (c) Guarantor's
willful breach of its guaranty obligation on an anticipatory breach basis, where
such anticipatory breach would reasonably indicate Guarantor's inability to
satisfy Guarantor's obligations as they become due, including, without
limitation, Guarantor's claim of any defense waived by Guarantor under the
Guaranty. Unless Tenant, within sixty (60) days following written notice by or
on behalf of Landlord to Tenant of any of the foregoing events, provides
Landlord with an alternative assurance of security reasonably acceptable to
Landlord. Landlord may exercise any and all remedies for a Tenant default
hereunder without requirement for any additional notice or cure period.
39. LETTER OF CREDIT.
A. Requirements. On or before June 14, 2006, Tenant shall deliver to
Landlord an irrevocable and unconditional negotiable standby letter of
credit ("Letter of Credit") containing the terms required herein, payable
in the City of Denver, Colorado, running in favor of Landlord and issued by
a solvent, nationally recognized bank with a long term rating of BBB or
higher, or a national banking association, in the amount of Three Hundred
Fifty Thousand Dollars ($350,000.00) ("Letter of Credit Amount"). The
Letter of Credit shall (1) be "callable" at sight, irrevocable, and
unconditional; (2) be maintained in effect, whether through renewal or
extension, for the period from the Commencement Date and, subject to
reduction in accordance with Section 39H, continuing until the date
("Letter of Credit Expiration Date") that is sixty (60) days after the
expiration of the Primary Lease Term, as the same may be extended, and
Tenant shall deliver a new Letter of Credit or certificate of renewal or
extension to Landlord at least thirty (30) days before the expiration of
the Letter of Credit then held by Landlord, without any action whatsoever
on the part of Landlord; (3) be fully assignable by Landlord, its
successors, and assigns (but only to a successor landlord hereunder,
Landlord's affiliates or Landlord's lenders); (4) permit partial draws and
multiple presentations and drawings; and (5) be otherwise subject to the
Uniform Customs and Practices for Documentary Credits (1993-Rev),
International Chamber of Commerce Publication #500, or the International
Standby Practices-ISP 98, International Chamber of Commerce Publication
#590. In addition, the form and terms of the Letter of Credit and the bank
issuing the same ("Bank") shall be reasonably acceptable to Landlord.
Landlord, or its then managing agent, shall have the right to draw down an
amount up to the face amount of the Letter of Credit if any of the
following shall have occurred or be applicable: (1) such amount is due to
Landlord under the terms and conditions of this Lease after any applicable
notice and cure period expressly set forth in this Lease; provided that if
Landlord is prevented from delivering a notice of default to Tenant for any
reason, including, without limitation, because Tenant has filed a voluntary
petition, or an involuntary petition has been filed against Tenant, under
the U. S. Bankruptcy Code or any state bankruptcy code (collectively,
"Bankruptcy Code"), then no such notice and cure period shall be required;
(2) Tenant has filed a voluntary petition under the Bankruptcy Code; (3) an
involuntary petition has been filed against Tenant under the Bankruptcy
Code; or (4) the Bank has notified Landlord that the Letter of Credit will
not be renewed or extended through the Letter of Credit Expiration Date.
The Bank will honor the Letter of Credit regardless of whether Tenant
disputes Landlord's right to draw on the Letter of Credit.
B. Transfers. The Letter of Credit shall also provide that Landlord,
its successors, and assigns (subject to Section 39A), may, at any time, on
prior notice to Tenant but without first obtaining Tenant's consent,
transfer (one or more times) all or any portion of its interest in and to
the Letter of Credit to another party, person, or entity, regardless of
whether such transfer is separate from or a part of the assignment by
Landlord of its rights and interests in and to this Lease. In the event of
a transfer of Landlord's interest in the Building, Landlord shall transfer
the Letter of Credit, in whole or in part, to the transferee and Landlord
shall then, without any further agreement between the parties, be released
by Tenant from all liability therefor, and the parties agree that the
provisions of this Article shall apply to every transfer or assignment of
the whole or any portion of this Letter of Credit to a new landlord. In
connection with any such transfer of the Letter of Credit by Landlord,
Tenant shall, at Tenant's sole cost and expense, execute and submit to the
Bank such applications, documents, and instruments as may be necessary to
effectuate such transfer, provided that Landlord shall be responsible for
paying the Bank's transfer and processing fees in connection with any such
transfer.
C. Restoration. If, as a result of any drawing by Landlord on the
Letter of Credit, the amount of the Letter of Credit shall be less than the
Letter of Credit Amount, Tenant shall, within five (5) business days after
written demand by Landlord, provide Landlord with additional letter(s) of
credit in an amount equal to the deficiency or a replacement Letter of
Credit in the amount of the Letter of Credit, and any such additional
letter(s) of credit shall comply with all of the provisions of this Article
39. If Tenant fails to comply with this requirement, despite anything to
the contrary contained in Article 19, the same shall constitute an
incurable Event of Default by Tenant.
D. Renewals. Tenant covenants and warrants that it will neither assign
nor encumber the Letter of Credit or any part of it and that neither
Landlord nor its successors or assigns will be bound by any assignment,
encumbrance, attempted assignment, or attempted encumbrance. Without
limiting the generality of the foregoing, if the Letter of Credit expires
earlier than the Letter of Credit Expiration Date, Landlord will accept a
renewal of the letter of credit (such renewal letter of credit to be in
effect and delivered to Landlord, as applicable, not later than thirty (30)
days before the expiration of the Letter of Credit), which shall be
irrevocable and automatically renewable as required in Section 39A through
the Letter of Credit Expiration Date on the same terms as the expiring
Letter of Credit or such other terms as may be acceptable to Landlord in
its reasonable discretion. However, if the Letter of Credit is not timely
renewed, or if Tenant fails to maintain the Letter of Credit in the amount
and in accordance with the terms set forth in Section 39A, Landlord shall
have the right to present the Letter of Credit to the Bank in accordance
with the terms of Section 39A, and the proceeds of the Letter of Credit may
be applied by Landlord against any Rent payable by Tenant under this Lease
that is not paid when due, after any applicable notice and cure period
expressly set forth in this Lease; provided that if Landlord is prevented
from delivering a notice of default to Tenant for any reason, including,
without limitation, because Tenant has filed a voluntary petition, or an
involuntary petition has been filed against Tenant, under the Bankruptcy
Code, then no such notice and cure period shall be required, and to pay for
all losses and damages that Landlord has suffered or that Landlord
reasonably estimates that it will suffer as a result of any breach or
default by Tenant under this Lease. Any unused proceeds shall constitute
the property of Landlord and need not be segregated from Landlord's other
assets. Landlord agrees to pay to Tenant within thirty (30) days after the
Letter of Credit Expiration Date the amount of any proceeds of the Letter
of Credit received by Landlord and not applied against any Rent payable by
Tenant under this Lease that was not paid when due or used to pay for any
losses and damages suffered by Landlord (or reasonably estimated by
Landlord that it will suffer) as a result of any Event of Default under
this Lease; provided, however, that if before the Letter of Credit
Expiration Date a voluntary petition is filed by Tenant, or an involuntary
petition is filed against Tenant by any of Tenant's creditors, under the
Bankruptcy Code, then Landlord shall not be obligated to make such payment
in the amount of the unused Letter of Credit proceeds until either all
preference issues relating to payments under this Lease have been resolved
in such bankruptcy or reorganization case or such bankruptcy or
reorganization case has been dismissed.
E. Draws. Tenant acknowledges and agrees that Landlord is entering
into this Lease in material reliance on the ability of Landlord to draw on
the Letter of Credit as provided in this Article 39. If an Event of Default
shall exist under this Lease, Landlord may, but without obligation to do
so, and without notice to Tenant, draw on the Letter of Credit, in part or
in whole, to cure any such Event of Default and to compensate Landlord for
any and all damages of any kind or nature sustained or which Landlord
reasonably estimates that it will sustain resulting from such Event of
Default; provided, however, that if Landlord is prevented from delivering a
notice of default to Tenant for any reason, including, without limitation,
because Tenant has filed a voluntary petition, or an involuntary petition
has been filed against Tenant, under the Bankruptcy Code, then no such
notice and cure period shall be required. The use, application, or
retention of the Letter of Credit, or any portion of it, by Landlord shall
not prevent Landlord from exercising any other right or remedy provided by
this Lease or by any applicable law, it being intended that Landlord shall
not first be required to proceed against the Letter of Credit, and shall
not operate as a limitation on any recovery to which Landlord may otherwise
be entitled. Tenant agrees not to interfere in any way with payment to
Landlord of the proceeds of the Letter of Credit before a "draw" by
Landlord of any portion of the Letter of Credit, regardless of whether any
dispute exists between Tenant and Landlord as to Landlord's right to draw
on the Letter of Credit; provided, however, that nothing contained in this
section shall be deemed to prohibit Tenant from challenging the validity or
amount of this draw after the draw occurs. No condition or term of this
Lease shall be deemed to render the Letter of Credit conditional to justify
the issuer of the Letter of Credit in failing to honor a drawing on such
Letter of Credit in a timely manner. Tenant agrees and acknowledges that
(1) the Letter of Credit constitutes a separate and independent contract
between Landlord and the Bank; (2) Tenant is not a third party beneficiary
of such contract; (3) Tenant has no property interest whatsoever in the
Letter of Credit or the proceeds of it; and (4) if Tenant becomes a debtor
under any chapter of the Bankruptcy Code, neither Tenant, any trustee, nor
Tenant's bankruptcy estate shall have any right to restrict or limit
Landlord's claim or rights to the Letter of Credit or the proceeds of it by
application of Section 502(b)(6) of the U.S. Bankruptcy Code or otherwise.
F. Replacement. Tenant may, from time to time, replace any existing
Letter of Credit with a new Letter of Credit if the new Letter of Credit:
(a)......Becomes effective at least 30 days before expiration of
the Letter of Credit that it replaces;
(b)......Is in the required Letter of Credit amount; and
(c)......Otherwise complies with the requirements of this Article
39.
G. Not a Security Deposit. Landlord and Tenant (1) recite that the
Letter of Credit is not intended to serve as a security deposit and any and
all other laws, rules, and regulations applicable to security deposits in
the commercial context ("Security Deposit Laws") shall have no
applicability or relevancy to the Letter of Credit, and (2) waive any and
all rights, duties, and obligations either party may now or in the future
have relating to or arising from the Security Deposit Laws.
H. Reduction Schedule. Provided that, as of each Reduction Date set
forth below, there has not previously been nor is there then an Event of
Default under this Lease, and provided further that, on or before the
applicable Reduction Date, Tenant tenders to Landlord a replacement Letter
of Credit or a certificate of amendment to the existing Letter of Credit,
such that the existing Letter of Credit as so amended conforms in all
respects to the requirements of this Article 39, in the amount of the
applicable Letter of Credit Amount as of such Reduction Date, the Letter of
Credit Amount shall be reduced in accordance with the following schedule:
-------------------------------------------------- ----------------------------
Reduction Date Letter of Credit Amount
-------------------------------------------------- ----------------------------
First Day of Month 37 of Primary Lease Term $300,000.00
-------------------------------------------------- ----------------------------
First Day of Month 49 of Primary Lease Term $200,000.00
-------------------------------------------------- ----------------------------
First Day of Month 61 of Primary Lease Term $100,000.00
-------------------------------------------------- ----------------------------
First Day of Month 73 of Primary Lease Term $0
-------------------------------------------------- ----------------------------
In the event the Letter of Credit Amount is reduced pursuant to this schedule,
and provided that in the case the existing Letter of Credit is replaced, Tenant
timely tenders the replacement Letter of Credit to Landlord in the form required
in this section, Landlord shall exchange the Letter of Credit then held by
Landlord for the replacement Letter of Credit tendered by Tenant. If the Letter
of Credit Amount is not reduced as of any Reduction Date because Tenant is then
in default, then such decrease shall be permitted after any such default is
cured by Tenant pursuant to the terms of this Lease; provided that no such
decrease shall occur if this Lease is terminated early as a result of any
default by Tenant.
I. Notwithstanding the foregoing, the requirement for Tenant to
maintain the Letter of Credit shall terminate in the event (i) this Lease
is fully assigned to Infocrossing pursuant to the terms of Article 13 or
(ii) the Guaranty is amended to provide that until all the covenants and
conditions in the Lease on Tenant's part to be performed and observed are
fully performed and observed, Infocrossing (a) shall have no right of
subrogation against Tenant by reason of any payments or acts of performance
by Infocrossing in compliance with Infocrossing's obligations under the
Guaranty; (b) waives any right to enforce any remedy which Infocrossing may
then or thereafter have against Tenant by reason of any one or more
payments or acts of performance in compliance with Infocrossing's
obligations of hereunder; and (c) subordinates any liability or
indebtedness of Tenant now or hereafter held by Infocrossing to the
obligations of Tenant to Landlord under the Lease.
SIGNATURE PAGE NEXT
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed the day and year first above written.
LANDLORD:
EQUASTONE VIEWS, LLC,
a Delaware Limited Liability Company
By: Equastone Asset Management Colorado, LLC,
a Delaware Limited Liability Company
Its: Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Its: Chief Operating Officer
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇,
Its: Executive Vice President
TENANT:
(I)STRUCTURE, LLC, a Delaware limited liability
company
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------
Print Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Its: President - IT
Date:
EXHIBIT CHECKLIST
Exhibit A Floor Plan
Exhibit B Legal Description
Exhibit C Commencement Certificate
Exhibit D Rules and Regulations
Exhibit E Work Letter
Exhibit F Lease Guaranty
Exhibit G Telecommunication Rules
Exhibit H Telecom Services
EXHIBIT A
FLOOR PLAN
[attached]
W02-WEST:6ML1\51417164.12 -1-
EXHIBIT B
LEGAL DESCRIPTION
PARCEL 1:
▇▇▇ ▇ ▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇ at Broomfield Replat A, Minor Subdivision, City and
County of Broomfield, State of Colorado.
PARCEL 2:
Beneficial easement set forth in Declaration of Easements Agreement with
Covenants, Conditions and Restrictions Recorded July 1, 2004 at Reception No.
2004009919 of the City and County of Broomfield, State of Colorado Records.
EXHIBIT C
COMMENCEMENT CERTIFICATE
THIS COMMENCEMENT CERTIFICATE is attached to and made a part of the Lease, dated
as of the ______ day of June, 2006 (the "Lease"), by and between EQUASTONE
VIEWS, LLC, a Delaware limited liability company, as Landlord, and (I)STRUCTURE,
LLC, a Delaware limited liability company, as Tenant. By this Commencement
Certificate dated as of the ______ day of ____________, 2006 (the "Commencement
Date"), the parties to the Lease agree as follows with respect to the Premises
(as defined in the Lease) located in the building known as The Views I, in
Broomfield, Colorado (the "Building"):
1. Any remodeling or tenant finish in the Building or Premises required
to be constructed and finished by Landlord in accordance with the terms of the
Lease have been satisfactorily completed by Landlord and accepted by Tenant.
2. The Premises under the Lease have been delivered to and accepted by
Tenant as of the Commencement Date.
3. In accordance with the provisions of the Lease, and subject to
abatement as set forth in the Lease, Tenant's obligation to pay Base Rent and
Tenant's Pro Rata Share of Operating Expenses and Taxes shall commence on the
Commencement Date, at the following rates: $32,520.58 per annum of Base Rent and
$13,185.62 (as currently estimated and subject to adjustment per the terms of
Section 5 of the Lease) of Operating Expenses and Taxes.
4. Final square footage of the Premises has been determined to be
35,477 RSF and Tenant's Pro-rata share (as of the Commencement Date) is
21.0380%.
6. In accordance with the provisions of Section 15 and Addendum 4 of
the Lease, attached is a certificate of insurance evidencing that Tenant is
carrying insurance required under Section 15 and Addendum 4 of the Lease.
IN WITNESS WHEREOF, the parties hereto have caused this
Commencement Certificate to be executed the day and year first above written.
"Landlord"
EQUASTONE VIEWS, LLC,
a Delaware Limited Liability Company
By: Equastone Asset Management Colorado, LLC,
a Delaware Limited Liability Company
Its: Manager
By:
----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Its: Chief Operating Officer
By:
----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇,
Its: Executive Vice President
"Tenant"
(I)STRUCTURE, LLC, a Delaware limited liability
company
By:
----------------------------------
Title:
----------------------------------
Date:
EXHIBIT D
RULES AND REGULATIONS
1. The sidewalks, entries, passages, corridors, stairways, and
elevators of the Building Complex shall not be obstructed by Tenant or Tenant's
agents or employees or used for any purpose other than ingress and egress to and
from the Premises, it being understood and agreed that such access may be
obtained only via the elevators in the lobby of the Building.
2. Furniture, equipment, or supplies will be moved in or out of the
Building only upon the elevator designated by Landlord and then only during such
hours and in such manner as may be prescribed by Landlord. The movers or moving
company employed by Tenant shall be subject to Landlord's approval (not to be
unreasonably withheld, conditioned or delayed by Landlord) and Tenant shall
cause said movers to use only the loading facilities and elevator designated by
Landlord. In the event Tenant's movers damage the elevator or any part of the
Building, Tenant shall forthwith pay to Landlord the amount required to repair
said damage.
3. No safe or article, the weight of which may, in the opinion of
Landlord, constitute a hazard or damage to the Building or the Building's
equipment, shall be moved into the Premises. Safes and other equipment, the
weight of which is not excessive, shall be moved into, from, or about the
Building only during such hours and in such manner as shall be prescribed by
Landlord and Landlord shall have the right to designate the location of such
articles in the Premises.
4. [intentionally omitted]
5. No sign, advertisement, or notice shall be inscribed, painted, or
affixed on any part of the inside or outside of the Building unless of such
color, size, and style and in such place upon or in the Building as shall be
first designated by Landlord in writing but there shall be no obligation or duty
on Landlord to allow any sign, advertisement or notice to be inscribed, painted,
or affixed on any part of the inside or outside of the Building. A directory in
a conspicuous place, with names of tenants, not to exceed one (1) line, will be
provided by Landlord. Any necessary revision in the directory will be made by
Landlord within a reasonable time after notice from Tenant of the change making
the revision necessary. No furniture shall be placed in front of the Building or
in any lobby or corridor of the Building outside of the Premises, without the
prior written consent of Landlord. Landlord shall have the right to remove all
non-permitted signs and furniture, without notice to Tenant, at the expense of
Tenant.
6. Tenant shall not do or permit anything to be done in the Premises or
bring or keep anything therein which would in any way increase the rate of fire
insurance on the Building or on property kept therein, constitute a nuisance or
waste, obstruct or interfere with the rights of other tenants or in any way
injure or annoy them, or conflict with the laws relating to fire or with any
regulations of the fire department, fire insurance underwriters, or with any
insurance policy upon the Building or any part thereof, or conflict with any of
the rules or ordinances of the Department of Health of the City and County where
the Building is located.
7. Tenant shall not employ any person or persons other than the janitor
of Landlord for the purpose of cleaning or taking care of the Premises, without
the prior written consent of Landlord (not to be unreasonably withheld,
conditioned or delayed). Landlord shall be in no way responsible to Tenant for
any loss of property from the Premises, however occurring, or for any damage
done to Tenant's furniture or equipment by the janitor or any of the janitor's
staff or by any other person or persons whomsoever, provided that Landlord has
not been negligent in the hiring of such janitorial service. The janitor of the
Building may at all times keep a passkey and other agents of Landlord shall at
all times be allowed admittance to the Premises upon written prior notice to
Tenant except in the case of emergency.
8. Water closets and other water fixtures shall not be used for any
purpose other than that for which they were intended and any damage resulting to
them from misuse on the part of Tenant or Tenant's agents or employees shall be
paid for by Tenant. No person shall waste water by tying back or wedging the
faucets or in any other manner.
9. No animals shall be allowed in the offices, halls, corridors, and
elevators in the Building other than seeing-eye dogs (whether or not accompanied
by visually impaired persons). No person shall disturb the occupants of the
Building or adjoining buildings or premises by the use of any radio, sound
equipment, or musical instrument or by the making of loud or improper noises (it
being agreed that the noise created by the operation of ordinary business
equipment shall in no event be deemed loud or improper).
10. intentionally omitted
11. Tenant shall not allow anything to be placed on the outside of the
Building, nor shall anything be thrown by Tenant or Tenant's agents or employees
out of the windows or doors or down the corridors, elevator shafts, or
ventilating ducts or shafts of the Building. Tenant, except in case of fire or
other emergency, shall not open any outside window.
12. No additional lock or locks shall be placed by Tenant on any door
in the Building, unless written consent of Landlord shall first have been
obtained. Tenant shall have no right to rekey the Premises. Two keys to the
Premises and the toilet rooms, if locked by Landlord, will be furnished by
Landlord and neither Tenant nor Tenant's agents or employees shall have any
duplicate keys made. Landlord shall supply Tenant with such additional keys as
Tenant may require at Tenant's sole cost and expense. At the termination of this
tenancy, Tenant shall promptly return to Landlord all keys to offices, toilet
rooms, or vaults.
13. No window shades, blinds, screens, draperies, or other window
coverings will be attached or detached by Tenant without Landlord's prior
written consent. Tenant agrees to abide by Landlord's rules with respect to
maintaining uniform curtains, draperies and linings, or blinds at all windows
and hallways.
14. If any Tenant desires telegraphic, telephonic, or other electric
connections, Landlord or Landlord's agents will direct the electricians as to
where and how the wires may be introduced. Without such directions, no boring or
cutting for wires will be permitted. Any such installation and connection shall
be made at Tenant's expense. Notwithstanding the foregoing, Tenant shall be
permitted to conduct such borings or cuttings in connection with the Landlord's
Work, the Tenant Work or any approved Alterations.
15. Tenant shall not install or operate any steam or gas engine or
boiler or carry on any mechanical business in the Premises. The use of oil, gas,
or inflammable liquids for heating, lighting, or any other purpose is expressly
prohibited. Explosives or other articles deemed extra hazardous shall not be
brought into the Building.
16. Any painting or decorating, as may be agreed to be done by and at
the expense of Landlord, shall be done during regular weekday working hours.
Should Tenant desire such work on Saturdays, Sundays, Legal Holidays, or outside
of regular working hours, Tenant shall pay for the extra cost thereof.
17. Except as permitted by Landlord, Tenant shall not ▇▇▇▇ upon, paint
signs upon, cut, drill into, drive nails or screws into, or in any way deface
the walls, ceilings, partitions, or floors of the Premises or of the Building
and any defacement, damage, or injury caused by Tenant or Tenant's agents or
employees shall be paid for by Tenant.
18. Landlord shall at all times have the right, by Landlord's officers
or agents, to enter the Premises and show the same to persons wishing to lease
them, only upon prior written notice to Tenant and only during the last six (6)
months of the Term.
19. Smoking is prohibited in all inside lobbies, common areas and
public areas of the Building Complex and is restricted in all outside plaza
areas of the Building Complex to specific locations designated by Landlord as
smoking areas.
Tenant agrees that Landlord may amend, modify, delete, or add new and additional
rules and regulations of the use and care of the Premises and the Building
Complex (provided that any such amendment or modification: (i) shall not be
inconsistent with any other provision of this Lease; (ii) shall be reasonable
and have general application to all tenants in the Building Complex; and (iii)
shall be binding on Tenant only upon delivery of a copy thereof to Tenant).
Tenant agrees to comply with all such rules and regulations upon notice to
Tenant from Landlord thereof. In the event of any breach of any of the rules and
regulations herein set forth or any amendments, modifications, or additions
thereto, Landlord shall have all remedies in this Lease provided for in the
Event of Default by Tenant. Landlord will give Tenant thirty days prior written
notice of any changes to the rules and regulations as set forth herein.
EXHIBIT E
CONSTRUCTION BY LANDLORD
THIS TENANT IMPROVEMENT AGREEMENT (the "Work Letter Agreement") forms a
part of the Lease Agreement (the "Lease") made and entered into on June 27,
2006, by and between EQUASTONE VIEWS, LLC (herein called "Landlord"), and
(I)STRUCTURE, LLC (herein called "Tenant"). Terms which are used herein as
defined terms but which are not otherwise defined shall have the same meanings
which are given to such terms in the Lease. For the considerations set forth in
the Lease and the mutual covenants hereinafter contained, Landlord and Tenant
covenant and agree as follows:
SECTION 1
CONSTRUCTION OF TENANT IMPROVEMENTS
The Landlord's work (herein "Landlord's Work") shall consist of any
work, including work in place as of the date hereof, required to complete those
improvements to the Premises pursuant to the approved Working Drawings and
Specifications (as hereinafter defined). All of the Tenant Improvement work
shall be performed by a contractor selected by Landlord in accordance with the
procedures and requirements set forth below.
SECTION 2
ARCHITECTURAL AND CONSTRUCTION PROCEDURES
a. Preliminary Plan. Tenant and Landlord have approved a detailed space
plan for the Premises, prepared by Keiding Architects ("Architect"), which is
dated February 15, 2006 and attached hereto as Exhibit E-1 ("Preliminary Plan").
b. Landlord's Review Responsibilities. Tenant agrees and understands
the review of all plans pursuant to this Work Letter by Landlord is solely to
protect the interest of Landlord in the Premises and Landlord shall not be the
guarantor of, nor responsible for, the correctness or accuracy of any such plans
or compliance of such plans with applicable laws.
c. Non-Standard Improvements. Except as specified in the Preliminary
Plan or otherwise authorized by Landlord, the Landlord's Work shall incorporate
Landlord's building standard materials and specifications for Landlord's Work
("Standards"), which Standards shall be substantially similar to the building
materials and specifications utilized by Landlord for other tenant improvements
in the Building constructed by Landlord. No deviations from the Standards shall
be permitted, provided that Landlord may, in its sole and absolute discretion,
authorize in writing one or more of such deviations if requested by Tenant
("Non-Standard Improvements"), in which event any excess cost of such deviations
shall be part of "Tenant's Contribution" (as hereinafter defined); provided that
Tenant shall have approved such deviations and the cost thereof in writing in
advance, and Tenant shall be solely responsible for the cost of replacing same
with the applicable Standard item(s) upon the expiration or termination of this
Lease (provided, however, that upon the written request of Tenant submitted
concurrently with Tenant's request for Landlord's approval of such deviations,
Landlord shall advise Tenant at that time whether or not such deviations must be
removed upon the expiration or sooner termination of this Lease). Landlord shall
in no event be required to approve any deviations from the Standards if Landlord
determines that such improvement (i) is of a lesser quality than the
corresponding Standard, (ii) fails to conform to applicable governmental
requirements, (iii) requires building services beyond the level normally
provided to other tenants, or (iv) would have an adverse aesthetic impact from
the exterior of the Premises.
d. Preparation And Approval of Working Drawings and Specifications.
Landlord shall submit to Tenant drawings prepared by the Architect consistent
with the approved Preliminary Plan which shall be compatible with the design,
construction and equipment of the Building shell(s), comply with all applicable
laws, be capable of logical measurement and construction, contain all such
information as may be required for the construction of the Landlord's Work, and
contain all partition locations, plumbing locations, HVAC requirements and duct
work, and ceiling plans. Such Working Drawings and Specifications must
incorporate the Standards and approved Non-Standard Improvements, which are
consistent with the Preliminary Plan. The Working Drawings and Specifications
may be submitted in one or more stages and at one or more times, and the time
periods for Tenant's approval shall apply with respect to each such portion
submitted.
Tenant shall approve or provide written comments to the Working
Drawings and Specifications, or such portion as has from time to time been
submitted, within seven (7) business days after receipt of same or designate by
notice given within such time period to Landlord the specific changes reasonably
required to be made to the Working Drawings and Specifications in order to
correct any design problem but Tenant shall not have the right to disapprove any
aspect of the Working Drawings and Specifications which is consistent with the
approved Preliminary Plan. Landlord shall promptly cause the Architect to make
the changes necessary in order to correct any such design problem and shall
return the Working Drawings to Tenant, which Tenant shall approve or disapprove
within seven (7) business days after Tenant receives the revised Working
Drawings and Specifications. This procedure shall be repeated until all of the
Working Drawings and Specifications are finally approved by Tenant and written
approval has been delivered and received by Landlord.
e. Selection of Landlord's Contractor. Landlord shall circulate an
appropriate bid package for bidding by a minimum of three (3) prospective
general contractors to undertake and complete construction of the Landlord's
Work. When the bids are received, Landlord shall provide Tenant with a copy of
same, and when approved by Landlord, Landlord shall enter into a construction
contract with the general contractor ("Landlord's Contractor") who submits the
lowest bid for the construction of the Landlord's Work consistent with the terms
of the bid to construct the Landlord's Work ("Construction Contract") on the
general contractor otherwise selected by Tenant if approved by Landlord, in
Landlord's reasonable discretion.
f. Changes. In the event that Tenant requests in writing a revision in
the approved Working Drawings and Specifications after final approval thereof
("Change"), Landlord shall advise Tenant by written change order as soon as is
practical of any increase in the Completion Cost (as defined below in Section
3.a) and/or any delay such Change would cause. Tenant shall approve or
disapprove such change order in writing within two (2) business days following
its receipt from Landlord. Tenant's approval of such Change shall be conditioned
upon by Tenant's payment of any such increase in the Completion Cost. Landlord
shall have the right to decline Tenant's request for a Change for any of the
reasons set forth in Paragraph 2.c above for Landlord's disapproval of a
Non-Standard Improvement. It is understood that Landlord shall have no
obligation to interrupt or modify the improvement work in the Premises pending
Tenant's approval of a change order. No changes to the Completion Cost may be
made without Tenant's prior written approval.
g. Impact of Delays. Following approval of the Working Drawings and
Specifications, the entry into of the Construction Contract and the obtaining of
a permit for construction of the Landlord's Work from the City of Denver,
Landlord shall diligently commence and shall diligently complete the
construction of the Landlord's Work. To the extent that Landlord's completion of
Landlord's Work is delayed by any action by Tenant or any person or entity under
Tenant's control, including, without limitation, Changes, work stoppages
attributable to Tenant's activities in the Premises, Landlord's inability to
obtain needed materials for Non-Standard Improvements after the exercise of
commercially reasonable efforts, or Tenant's failure to meet any time
requirements set forth in this Work Letter ("Tenant Delays"), then the
Commencement Date of the Lease shall be accelerated by one day for each day in
which a Tenant Delay occurs.
h. Early Entry. Landlord shall permit Tenant and its agents to enter
the Premises prior to the Substantial Completion (as hereinafter defined) of the
Landlord's Work in order that Tenant may perform any work to be performed by
Tenant hereunder through its own contractors, including the Tenant Work, subject
to Landlord's prior written approval, and in a manner and upon terms and
conditions and at times satisfactory to Landlord's representative. The foregoing
license to enter the Premises is, however, conditioned upon Tenant's contractors
and their subcontractors and employees working in harmony and not interfering
with the work being performed by Landlord. If at any time that entry shall cause
disharmony or interfere with the work being performed by Landlord, this license
may be withdrawn by Landlord upon twenty four (24) hours written notice to
Tenant. That license is further conditioned upon the compliance by Tenant's
contractors with all reasonable requirements imposed by Landlord on third party
contractors, including without limitation the maintenance by Tenant and its
contractors and subcontractors of workers' compensation and public liability and
property damage insurance in amounts and with companies and on forms reasonably
satisfactory to Landlord, with certificates of such insurance being furnished to
Landlord prior to proceeding with any such entry. The entry shall be deemed to
be under all of the provisions of the Lease except as to the covenants to pay
Rent and covenants that are operative after the Commencement Date. Landlord
shall not be liable in any way for any injury, loss or damage which may occur to
any such work being performed by Tenant, the same being solely at Tenant's risk.
In no event shall the failure of Tenant's contractors to complete any work in
the Premises delay the Commencement Date.
i. Walk-Through. After the Landlord's Work is substantially completed
(excepting punch list items), Landlord shall cause Landlord's Contractor to
inspect the Premises with the Tenant's Representative and complete a punch list
of unfinished or incorrect items of the Landlord's Work. Authorized
representatives for the Landlord and Tenant shall execute said punch list to
indicate their approval thereof. The items listed on such punch list shall be
completed by the Landlord's Contractor within thirty (30) days after the
approval of such punch list or as soon thereafter as reasonably practicable.
j. Tenant's Representative. Tenant hereby designates ▇▇▇▇ ▇▇▇▇▇,
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇, as its representative, agents and attorney-in-fact
for the purpose of receiving notices, approving submittals and issuing requests
for Changes, and Landlord shall be entitled to rely upon authorizations and
directives from either of such person(s) as if given directly by Tenant. Tenant
may amend the designation of its construction representative(s) at any time upon
delivery of written notice to Landlord.
k. Cooperation. During the entire course of the construction process,
Tenant and Landlord each shall respond to requests for information or decisions
with reasonable dispatch. Without limiting the foregoing, each party shall
cooperate with the other to facilitate and expedite the efficient design and
construction of the Landlord's Work.
l. Substantial Completion. Within ten (10) days after Substantial
Completion of the Landlord's Work, Landlord and Tenant shall acknowledge in
writing that the Landlord's Work has been constructed in accordance with the "as
built" plans provided by Tenant (or indicate any known discrepancies).
"Substantial Completion" or "Substantially Complete" shall be evidenced for the
Premises when (i) a certificate of occupancy (permanent or temporary) has been
issued for the Premises; (ii) all Building systems are in good working order to
support the operation of the Premises; (iii) the Landlord's Work is complete
excepting industry standard punch-list items; and (iv) Tenant has been given
unrestricted access to move its furnishings and equipment into the Premises and
occupy and use the Premises, subject only to Landlord's right to complete the
punch-list items.
SECTION 3
COST OF LANDLORD'S WORK
a. Landlord shall complete, or cause to be completed, the Landlord's
Work in accordance with final Working Drawings and Specifications approved by
both Landlord and Tenant. Landlord shall, at Landlord's sole cost and expense,
pay the final construction costs as incurred to complete the Landlord's Work in
accordance with final Working Drawings and Specifications approved by both
Landlord and Tenant ("Landlord's Contribution"). Subject to the terms of Section
4A of the Lease, Tenant shall be fully responsible for (i) any excess cost
arising from any Non-Standard Improvements, Changes and Tenant Delays ("Tenant's
Contribution") and construction management fee equal to two percent (2%) of the
Completion Costs (defined below) payable to Landlord for supervising the
completion of the Landlord's Work, and any costs arising from any Non-Standard
Improvements, Changes and Tenant Delays. The total costs to complete the
improvements to the Premises pursuant to this Work Letter is equal to the
Landlord's Contribution plus the Tenant's Contribution ("Completion Cost").
b. The Completion Cost shall include all costs of Landlord in
completing the Landlord's Work in accordance with the approved Working Drawings
and Specifications and any costs arising from any Non-Standard Improvements,
Changes and Tenant Delays, including but not limited to the following: (i)
payments made to architects, engineers, contractors, subcontractors and other
third party consultants in the performance of the work, (ii) salaries and fringe
benefits of persons, if any, in the direct employ of Landlord performing any
part of the construction work, (iii) permit fees and other sums paid to
governmental agencies, (iv) costs of all materials incorporated into the work or
used in connection with the work; and (v) all costs related to space planning
for the Premises.
c. Prior to start of construction of the Landlord's Work (the "Start
Date"), Tenant shall pay to Landlord forty percent (40%) of the amount of the
Tenant's Contribution as set forth in the Construction Contract, if any, and the
balance shall be paid as follows:
(i) An additional thirty percent (30%) of the balance shall be
paid to Landlord on or before the date which is thirty (30) days after the Start
Date;
(ii) An additional twenty percent (20%) of the balance shall
be paid to Landlord on or before the date which is sixty (60) days after the
Start Date;
(iii) The balance together with any increase because of any
Non-Standard Improvements, Changes and Tenant Delays, shall be due and payable
upon completion of any punchlist corrective work but not later than forty-five
(45) days after substantial completion of the Landlord's Work. If Tenant
defaults in the payment of any sums due under this Work Letter when due,
Landlord shall (in addition to all other remedies) have the same rights as in
the case of Tenant's failure to pay Rent under the Lease.
d. Notwithstanding any provision to the contrary contained in this Lease, if a
monetary Event of Default as described in the Lease, or an monetary default by
Tenant under this Work Letter not cured within five (5) days after written
notice from Landlord to Tenant, has occurred at any time on or before the
Substantial Completion of the Landlord's Work, then (i) in addition to all other
rights and remedies granted to Landlord pursuant to the Lease, Landlord shall
have the right to withhold payment of all or any portion of the Landlord's
Contribution and/or Landlord may cause Landlord's Contractor to cease the
construction of the Landlord's Work (in which case, Tenant shall be responsible
for any delay in the Substantial Completion of the Premises caused by such work
stoppage and such stoppage as a Tenant Delay), and (ii) all other obligations of
Landlord under the terms of this Work Letter shall be forgiven until such time
as such Default is cured pursuant to the terms of the Lease.
IN WITNESS WHEREOF, the parties hereto have executed this Work
Letter Agreement to be effective as of the Effective Date of the Lease.
"Landlord"
EQUASTONE VIEWS, LLC,
a Delaware Limited Liability Company
By: Equastone Asset Management Colorado, LLC,
a Delaware Limited Liability Company
Its: Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Its: Chief Operating Officer
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇,
Its: Executive Vice President
"Tenant"
(I)STRUCTURE, LLC, a Delaware limited liability
company
By:
---------------------
Title:
---------------------
Date:
EXHIBIT E-1 TO WORK LETTER
EXHIBIT F
FORM OF LEASE GUARANTY
In consideration of and as an inducement to EQUASTONE VIEWS, LLC, a
Delaware limited liability company (hereinafter called "Landlord"), to enter
into that certain Lease (herein the "Lease") of even date herewith
with(I)Structure, LLC, a Delaware corporation, (hereinafter called "Tenant")
respecting space in the property commonly known as The Views I, located at ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, the undersigned(s) hereby unconditionally
guarantees to Landlord and the successors and assigns of Landlord's interest
under the Lease and/or this Guaranty (i) the full and prompt payment of all rent
and other charges from as and when the same become due and payable under the
Lease, and (ii) the full and punctual performance and observance of all of the
covenants, conditions and agreements provided in said Lease to be performed or
observed by Tenant. If, at any time, default shall be made by Tenant in the
payment, performance or observance of any of the obligations, terms covenants or
conditions in the Lease on Tenant's part to be paid, kept, performed or
observed, the undersigned(s) upon demand by Landlord will forthwith pay, keep
perform and observe the same in the place and stead of Tenant.
In connection with the giving of the foregoing guarantees, the
undersigned(s) hereby agree as follows:
1. Any act of Landlord, or the successors or assigns of Landlord, consisting of
a waiver of any of the terms or conditions of the Lease, or the giving of any
consent to any manner or thing relating to the Lease, or the granting of any
indulgences or extensions of time to Tenant, may be done without notice to the
undersigned(s) and without releasing the obligations of the undersigned(s)
hereunder.
2. The obligations of the undersigned(s) shall not be released by Landlord's
receipt, application or release of security given for the payment, performance
or observance of any covenants or conditions in the Lease on the part of Tenant
to be paid, performed or observed.
3. The undersigned(s) hereby waives notice of any and all defaults under the
Lease by Tenant including, without limitation, notice of non-payment and
non-performance and non-observance of any term, covenant or condition by Tenant
under the Lease. The undersigned(s) specifically agree that the continuing
validity and enforceability of this Guaranty and the obligations and liabilities
of the undersigned(s) hereunder shall not be terminated, affected or impaired by
reason of the assertion or enforcement by Landlord against Tenant of any of the
rights or remedies reserved to Landlord pursuant to the provisions of the Lease
or under law.
The undersigned(s) covenants and agrees (a) that this Guaranty shall
remain and continue in full force and effect as to any and all modifications,
renewals and extensions of the Lease, and during any period when Tenant occupies
the Premises whether as a holdover tenant or otherwise to the same extent as if
such renewal, modification, occupancy or extension were in effect at the time of
execution of this Guaranty, and (b) the liability of the undersigned(s) shall be
deemed modified in accordance with terms of such modification, renewal,
extension or occupancy, all of the foregoing whether or not the undersigned(s)
has received any notice thereof either before, at the time of or after the same
is made and whether or not the undersigned(s) consent or agree or have consented
or agreed thereto (all such notices and any requirements for the undersigned's
consent and/or agreement being hereby specifically waived. Upon full performance
of all obligations hereby guaranteed, this Guaranty shall be of no further force
or effect. This Guaranty will continue to be effective or will be reinstated, as
the case may be, if at any time any payment made to Landlord pursuant to the
Lease or otherwise is rescinded or must be returned upon the insolvency,
bankruptcy or reorganization of Tenant, or otherwise, as if such payment had
never been made.
4. The liability of the undersigned(s) under this Guaranty shall in no way be
affected or impaired by (a) the release or discharge of Tenant in any creditors,
receivership, bankruptcy or other proceedings, (b) the impairment, limitation or
modification of the liability of Tenant or the estate of Tenant in bankruptcy,
or of any remedy for the enforcement of Tenant's obligations and liabilities
under the Lease, resulting from the operation of any present or future provision
of the Bankruptcy Code or other statute or from the decision of any court, (c)
the rejection or disaffirmance of the Lease in any such proceedings, (d) the
assignment or transfer of the Lease by Tenant, or (e) the cessation from any
cause whatsoever of the liability of Tenant.
5. The undersigned(s) represents and warrants to Landlord that this Guaranty has
been duly authorized and constitutes the valid and binding obligation of the
undersigned(s). In any action or proceeding brought by Landlord to enforce this
Guaranty, the undersigned(s) to the maximum extent permitted by law shall and
does hereby waive trial by jury. The undersigned(s) agree to pay upon demand all
costs and expenses (including, without limitation, court costs and legal fees)
paid or incurred by Landlord to enforce this Guaranty. If more than one
guarantor has signed this Guaranty, each such guarantor shall be jointly and
severally liable for all obligations of the "undersigned(s)" under this
Guaranty. Notwithstanding the foregoing, if either party to this Guaranty
participates in any action against the other party arising out of or in
connection with this Guaranty, then the prevailing party shall be entitled to
have and recover from the other party reasonable attorney fees, collection
costs, and other costs incurred in, and in preparation for, the action,
arbitration or mediation.
6. This Guaranty may not be changed, modified, discharged or terminated orally
or in any manner other than by an agreement in writing signed by the
undersigned(s) and Landlord. In all cases, notices may be given to the
undersigned(s) at the addresses set forth below under their respective
signatures and such notices will be deemed to have been sufficiently given for
all purposes if hand delivered or, if sent by prepaid certified mail, return
receipt requested, as of the date of mailing. By a notice similarly given to
Landlord c/o, Attention: Asset Manager, the undersigned(s) may change its
address for notice purposes.
[REMAINDER OF PAGE BLANK]
INFOCROSSING, INC., a Delaware corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
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Executed this ___ day of ____________, 2006.
Address:
Infocrossing, Inc.
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
With a copy to Tenant
to the address set forth
in the Lease
EXHIBIT G
TELECOMMUNICATIONS RULES
These Telecommunications Rules apply to Tenant's use of the Building outside of
the Premises, including, without limitation, the telecommunications closets
(each, a "TC") on each floor of the Building. Any questions about what is
allowed in the Building should be directed to Landlord's property manager.
A. WRITTEN AGREEMENT REQUIRED.
1. Tenant will be required to secure Landlord's property manager's
approval in writing before installing any cable or wire outside the
Premises and/or in, through or to any TC (other than the TC located on
the second floor of the Building while Tenant occupies the entire
second floor of the Building and there exists no Event of Default under
the Lease). Cable or wire installed without such agreement are subject
to removal by Landlord, at Tenant's sole cost and expense.
2. Before any new installations are commenced, even if Tenant has existing
facilities in the Building, either Tenant or Tenant's
telecommunications provider must enter into a license agreement with
Landlord, with the form and substance of such agreement being
acceptable to Landlord, in its sole discretion. Wires or cable
installed without such agreement are subject to removal by Landlord's
property manager, at Tenant's sole cost.
3. Neither Landlord, its property manager nor any of their respective
employees, contractors or agents will be responsible for any damage or
theft to Tenant equipment.
B. INSTALLATION AND OTHER WORK.
4. Tenant shall give Landlord's property manager prior notice, in writing
or by email, of all times that Tenant will work in or will have work
done in the TC (other than the TC located on the second floor of the
Building while Tenant occupies the entire second floor of the Building
and there exists no Event of Default under the Lease) or outside the
Premises. Such notice shall include the purpose and detail of the work
to be done, as well as the day and time the work will be performed.
5. All welding and/or core drilling or installation of equipment on the
roof must be approved by Landlord's property manager in writing prior
to any of the work being started. Landlord's property manager will
require drawing(s) and detailed information on any welding and/or core
drilling or installation of equipment on the roof. Landlord's property
manager requires a minimum of one (1) week for this review process.
All floors requiring core drilling must be x-rayed to determine
placement of core drill locations. Landlord's property manager
reserves the right, in its sole and absolute discretion, to deny
approval of any requested core drilling or welding, and the Landlord's
property manager will have the right to supervise any and all such
drilling and/or welding.
C. LOCATION OF EQUIPMENT.
1. All telecommunications equipment (including blocks and brackets) owned
and controlled by Tenant shall be located in the Premises or the TC
located on the second floor of the Building, except as otherwise agreed
to in writing by Landlord's property manager pursuant to Paragraph A1
above, and Tenant will be solely responsible for control of access to,
security of and maintenance of such equipment.
2. All station wiring for individual telephones, fax machines, modems,
Local Area Networks (each a "LAN") and similar equipment will be
terminated within the Premises.
3. Any equipment to be placed on the roof must be approved in writing by
Landlord's property manager as to weight, specification, placement,
mounting assembly and any other pertinent features. Any roof
penetrations require the written approval of Landlord's property
manager with the work to be performed by Landlord's property manager's
designated roofing contractor, and supervised by the Building's chief
engineer, all at Tenant's expense.
D. SPECIFICATIONS.
1. Tenant shall provide a minimum of one plenum-rated 25-pair cable for
connecting its equipment room to the second floor TC (or, subject to
the terms of Section 37D of the Lease, the MPOE, if agreed to in
writing by Landlord's property manager pursuant to Paragraph A1
above). For building housekeeping reasons and management of the
Premises, only cables with 25-pair or more cables will be permitted to
connect the Premises and a floor TC. Each such cable (a) shall be
supported and attached in an approved manner and meet all requirements
for firewall penetration, (b) be equipped with a "male" 50-pin
connector at the TC end and (c) be plugged into a standard RJ21X block
with an orange-hinged cover. This block shall be labeled with Tenant's
name and suite number(s), and each circuit shall be properly labeled.
3. All Tenant horizontal cabling installed within the Premises shall be
installed as per TIA/EIA 568-A standards unless otherwise approved in
writing by the Landlord's property manager.
4. All wire and cable installed above ceilings shall be plenum-rated, be
properly supported or attached to the Building on their own hangers
designed specifically for low voltage wire support, and be labeled with
Tenant's name, contact person and telephone number. Tenant will
install, or cause to be installed, all wires, cables and their
connections installed in compliance with all applicable governmental
codes, rules, regulations and laws.
5. Tenant will cause all new installations in common areas of the Building
to be contained in raceway (EMT or rigid conduit) with the outside of
the raceway properly located in accordance with the aforementioned
standards. Tenant can be exempt from using raceway if and only if such
exemption is specifically contained in a written license agreement
referred to above in Section A.2 of this Exhibit F.
6. If a pull box is required because of distances or bends, a locking pull
box must be installed. The pull box must identify Tenant, the pull
box's contents and a contact person.
PLANS AND DIAGRAMS.
1. Tenant shall provide Landlord's property manager with a wiring diagram
(including a riser diagram) of the Premises showing all cable numbers
and locations upon completion of any new cable systems installation.
Tenant shall provide to Landlord's property manager with a set of
as-built drawings upon completion of any new cable systems. Tenant must
update such drawings with any changes, deletions or additions to
Tenant's service and/or equipment during the Term.
2. Tenant shall provide to the Landlord's property manager with a diagram
of any existing cabling in the Premises, showing locations and numbers,
prior to the space being vacated.
REMOVAL.
1. Wires and cables installed by or for Tenant shall be removed at the
expense of Tenant at the end of the Term, unless Landlord agrees
otherwise in writing.
2. Any unidentified or terminated cable and/or equipment located in the
Building and outside of a tenant's premises, including in a TC or on
the roof, becomes the property of Landlord and, as such, can be removed
and disposed by Landlord's property manager at its sole discretion.
GENERALLY.
1. Tenant and its employees, contractors and agents will comply with the
Landlord's property manager 's sign-out/sign-in system for access to
the roof.
2. All capitalized terms not defined herein have the meanings given them
in the Lease. In the event of any conflict or ambiguity between the
terms of these Rules and the Lease, the terms of the Lease will govern.
3. These Rules may be updated, amended or otherwise modified from time to
time in the discretion of Landlord.
4. All contractors will be licensed. All contractors will comply with the
Building contractor's rules and regulations.
LANDLORD'S RIGHTS TO ENTER TC
1. Provided Tenant continues to occupy the entirety of the second (2nd)
floor of the Building and an Event of Default has not occurred, Tenant
shall have the exclusive license to use the TC, subject to the right
of Landlord to use the TC, including, without limitation, the plenum
and risers therein, for purposes of maintaining and operating the
Building Complex telecommunications network and related equipment and
cabling. Landlord reserves and shall at all reasonable times, upon
reasonable prior notice of at least twenty-four (24) hours (except in
the case of an emergency, when no notice shall be required), and
subject to Tenant's reasonable security precautions and the right of
Tenant to accompany Landlord at all times, have the right to enter the
TC to inspect the same, to access, maintain, augment and repair
Landlord's equipment located in the TC, to supply any service to be
provided by Landlord to Tenant hereunder, to show the TC to
prospective purchasers, Mortgagees or tenants, to post notices of
nonresponsibility or as otherwise required or allowed by this Lease or
by law, and to alter, improve or repair the TC and any portion of the
Building and may for that purpose erect, use, and maintain
scaffolding, pipes, conduits, and other necessary structures in and
through the TC where reasonably required by the character of the work
to be performed. Notwithstanding the foregoing, in the event Tenant
ceases to occupy the entirety of the second (2nd) floor of the
Building or an Event of Default occurs, Tenant shall no longer have
the exclusive right to use the TC, and Landlord shall develop a
commercially reasonably security plan regarding entry access to the
TC.
EXHIBIT H
TELECOM SERVICES
(attached hereto)
ADDENDUM 1 TO LEASE AGREEMENT
BY AND BETWEEN
EQUASTONE VIEWS, LLC
AND
(I)STRUCTURE, LLC
(a) OPTION TO RENEW OR EXTEND
Provided that no Event of Default is existing as of the date of Tenant's notice
of renewal or the first day of the Renewal Term, Tenant is hereby granted and
shall have one (1) option to renew or extend the term of this Lease (the
"Renewal Option") with respect to the entire Premises, for a successive five (5)
year period (the "Renewal Term") after the Primary Lease Term. If Tenant
exercises the Renewal Option, the Renewal Term shall commence at the expiration
of the Primary Lease Term. Tenant shall exercise its option to renew no earlier
than twelve (12 months and no later than nine (9) months prior to the expiration
of the Primary Lease Term. If Tenant fails to give the aforesaid notice within
the time permitted, Tenant's Renewal Option shall automatically terminate, time
being of the essence.
Within thirty (30) days of Landlord's receipt of Tenant's notice, Landlord must
deliver to Tenant Landlord's good faith determination of the Market Base Rental
Rate (as defined below)[; provided that in no event shall the Market Base Rental
Rate be less than the Base Rent payable upon the expiration of the Primary Lease
Term. For the thirty (30) day period commencing on the date Landlord provides
such notice to Tenant, Landlord and Tenant shall negotiate in good faith
(neither party acting arbitrarily or capriciously) in an effort to reach
agreement as to the Market Base Rental Rate (the "Negotiation Period"). If
Landlord and Tenant agree to the Market Base Rental Rate, the renewal of this
Lease shall be upon the same terms and conditions of this Lease, except that:
(i) the Base Rental during the Renewal Term shall be the Market Base Rental Rate
agreed to by Landlord and Tenant; (ii) the leasehold improvements will be
provided in their then-existing condition, on an "as-is" basis at the time the
Renewal Term commences without any obligation on the Landlord's part to provide
any free rent, tenant improvements or allowances for tenant improvements; and
(iii) Landlord will have no obligation to pay any commission to any broker
representing Tenant.
For purposes of this Lease, the "Market Base Rental Rate" shall mean the annual
net rental rate per square foot (exclusive of Operating Expenses, Taxes and
other pass-through additions) of rentable area then being charged to third
parties in comparable office buildings located in the US 36 corridor office
market area for new leases then being entered into for space comparable to the
space for which the Market Base Rental Rate is being determined, assuming that
(and the final Market Base Rental Rate having taken account of the fact that)
Landlord is paying market rate commissions, a standard tenant improvement
allowances, and other market tenant inducements and taking into consideration
other relevant market factors.
If Landlord and Tenant are unable to reach a definitive agreement as to all of
the Renewal Lease terms during the Negotiation Period, then Tenant may elect
within five (5) business days following the Negotiation Period one of the
following two options: (i) to revoke the exercise of its Renewal Option and
thereby permit this Lease to expire upon the expiration of the then existing
term of this Lease, or (ii) require that the matter be submitted to a binding
appraisal process in accordance with the procedure set forth below. If Tenant
fails to exercise either of the two options within the five (5) business day
period, Tenant shall be deemed to have elected to exercise the second option.
If Tenant has elected or is deemed to have elected the second option, Tenant
shall have irrevocably exercised its right to renew the term for the Renewal
Term, subject to the remaining provisions of this Addendum 1, and Tenant may not
withdraw the exercise of the Renewal Option. The renewal of this Lease pursuant
to this election shall be upon the same terms and conditions of this Lease
except (i) the Base Rental shall be the Market Base Rental Rate at the time the
Renewal Term commences as determined pursuant to appraisal, (ii) the leasehold
improvements will be provided in their then existing condition, on an "as-is"
basis at the time the Renewal Term commences without any obligation on
Landlord's part to provide any free rent, tenant improvements or allowances for
tenant improvements; and (iii) Landlord will have no obligation to pay any
commission to any broker representing Tenant.
The appraisal of the Market Base Rental Rate shall be undertaken pursuant to
Addendum 1-A attached to this Addendum 1.
Tenant shall not have the right to exercise a Renewal Option if it has assigned
the Lease to a non-Affiliate.
Addendum 1-A
Appraisal Procedure
A. General. In the event Tenant elects (or is deemed to have elected)
to submit the determination of Market Base Rental Rate to appraisal, the
provisions of this Addendum 1-A shall apply.
B. Selection of Arbitrators. Each of Landlord and Tenant shall select
(and notify the other party of the selection and identity of) an appraiser
within ten (10) business days after the election (or deemed election) by Tenant
for such appraisal. In the event that either Landlord or Tenant fails to notify
the other party of its selection and identity of an appraiser within such ten
(10) business day period, then such party shall be deemed to have waived its
right to select an appraiser, in which event the appraiser selected by the other
party that has so satisfied its obligation to select and identify an appraiser
shall be the appraiser that determines the Market Base Rental hereunder. Each
appraiser thus selected shall within thirty (30) days after the expiration of
such ten (10) business day period report its appraisal of the Market Base Rental
Rate in writing simultaneously to both parties. If the lower of the two (2)
appraisals is not less than Ninety Percent (90%) of the higher of the two (2)
appraisals, the average of the two (2) appraisals shall be the Market Base
Rental Rate. If the lower of the two (2) appraisals is less than Ninety Percent
(90%) of the higher of the two (2) appraisals, the two (2) appraisers shall,
within fifteen (15) days after the submission of both reports, select (and
notify the parties of the selection and identity of) a third (3rd) appraiser who
shall within fifteen (15) days of its appointment select the amount stated by
either Landlord's appraiser or Tenant's appraiser and such third (3rd) appraiser
shall have no discretion to select an amount different from either thereof
C Each appraiser must be an MAI appraiser, shall have at least five (5)
years experience in the appraisal of office buildings in the Denver, Colorado,
area, and shall be disinterested and not an affiliate or family member of, or
contract party to, any party (other than in connection with such appraisal).
Each appraisal shall take into account the parameters and factors used to
determine Market Base Rental Rate set forth in Addendum 1. In each instance
where two (2) appraisers select a third (3rd) appraiser, the two (2) appraisers
shall share with the third (3rd) appraiser all documents, research and other
information acquired by them with respect to the Building Complex, Real Property
and Premises. The fees and expenses of each appraiser shall be borne by the
party selecting such appraiser and the fees and expenses of the third appraiser,
if any, shall be split equally between the parties. To the extent Landlord
and/or Tenant shall possess material information with regard to the Building
Complex, Real Property and Premises, such party shall furnish and provide the
appraiser(s) with such information.
ADDENDUM 2 TO LEASE AGREEMENT
BY AND BETWEEN
EQUASTONE VIEWS, LLC
AND
(I)STRUCTURE, LLC
RIGHT OF FIRST REFUSAL
Tenant is hereby granted and shall have a right of first refusal (the "ROFR") on
all or any portion of the space located on the first and third floors of the
Building (collectively, the "ROFR Space") for which Landlord receives or
delivers a bona fide written expression of interest from or to a prospective
tenant (an "Expression of Interest") pursuant to which the parties mutually
indicate an interest in leasing all or any portion of the ROFR Space. The ROFR
is subject and subordinate to any other rights of first offer, rights of first
refusal, expansion rights, renewal rights or other rights existing as of the
date of this Lease of the Building or any other buildings in the Building
Complex. Landlord represents that to its actual knowledge the sole rights of
first offer, rights of first refusal, expansion rights or renewal rights
existing as of the date of this Lease with respect to the ROFR Space are as set
forth on Addendum 2-A.
Upon delivery or receipt of an Expression of Interest, Landlord shall promptly
provide Tenant with a written notice ("ROFR Notice"): (i) identifying the
leasable area of the ROFR Space covered by the Expression of Interest, and (ii)
transmitting a copy of the Expression of Interest. Tenant shall have the right
at any time within five (5) business days following its receipt of the ROFR
Notice to exercise its ROFR with respect to the space specified in such ROFR
Notice. If Tenant fails to respond within such five (5) business day period,
time being of the essence, Tenant will be deemed to have elected not to exercise
its ROFR and Tenant's ROFR shall be deemed to be null and void and of no further
force and effect. If Tenant elects not to (or is deemed to have elected not to)
exercise its ROFR with respect to any ROFR Space, Landlord shall have the right
to enter into a lease with the prospective tenant (or its assignee) identified
in the Expression of Interest on substantially the same terms as set forth in
the Expression of Interest. If Tenant exercises its ROFR, Tenant shall timely
deliver written notice of such exercise to Landlord, and Landlord and Tenant
shall execute a separate lease covering the ROFR Space (the "ROFR Space Lease").
The ROFR Space Lease shall be cross defaulted with this Lease and shall
otherwise be on the same terms and conditions as this Lease except that the ROFR
Space Lease will be modified to reflect the terms set forth in Expression of
Interest.
Tenant's right to lease any ROFR Space shall be a continuous right during the
Term, and the exercise or non-exercise of the ROFR with respect to any ROFR
Space shall not be deemed to extinguish the ROFR with respect to such ROFR Space
(if such ROFR Space later becomes available again as a ROFR Space) or with
respect to any other ROFR Space.
Notwithstanding the foregoing, Landlord shall not be obligated to offer the ROFR
Space to Tenant under any of the following conditions: (i) any then existing
tenant of the space elects to extend its lease pursuant to a renewal option
contained in its lease, a negotiated lease extension or a replacement lease;
(ii) a tenant expands its existing premises to include any ROFR Space (whether
such space is added pursuant to the exercise of the expansion option or a
negotiated lease amendment); or (iii) any ROFR Space becomes available at a time
when an uncured Event of Default is existing hereunder.
ADDENDUM 2-A
1. McData has a right of first refusal to the final 50,000 rentable square feet
to be leased in the Building during the initial lease up of the Building.
ADDENDUM 3 TO LEASE AGREEMENT
BY AND BETWEEN
EQUASTONE VIEWS, LLC
AND
(I)STRUCTURE, LLC
TENANT WORK
1. Space planning and interior architect/engineering.
2. Furniture systems reconfiguration.
3. Furniture acquisitions and installation.
4. Card entry system identical to the card entry system currently in use at the
entrance doors to the Building, including any related cabling therefor, and all
installation costs therefor.
5. So-called "Uninterrupted Power Supply" (UPS) battery back up system selected
by Tenant and reasonably approved by Landlord, for Tenant's server system which
is reasonably commercially suited to conduct Tenant's business in the Premises.
6. Security system acquisition and installation.
7. PBX phone system and cabling therefor selected by Tenant and reasonably
approved by Landlord, and which are reasonably commercially suited to conduct
Tenant's business in the Premises.
8. Supplemental air conditioning system acquisition and installation to meet
Tenant's needs.
9. Cabling.
10. Exterior monument signage.
11. Move costs.
12. Tenant's Project Management Fees.
13. Any other items reasonably required by Tenant to make the space meet
commercial norms for Class A office space and usage (e.g., microwave ovens,
refrigerators, etc.)
ADDENDUM 4 TO LEASE AGREEMENT
BY AND BETWEEN
EQUASTONE VIEWS, LLC
AND
(I)STRUCTURE, LLC
INSURANCE
1. INSURANCE AND INDEMNIFICATION.
1.1 Tenant Compliance with Insurance Requirements. Tenant's obligation to comply
with all applicable Laws shall include, without limitation, all applicable fire
codes and rules and regulations of Landlord's fire insurance underwriters, and
Tenant shall not, directly or indirectly, make any use of the Building or
Premises which may thereby be prohibited or be dangerous to person or property
or which may jeopardize any insurance coverage or may increase the cost of
insurance or require additional insurance coverage. If, by reason of the failure
of Tenant to comply with the provisions of this Section 1.1, any insurance
coverage is jeopardized or insurance premiums are increased, Landlord shall have
the option, in its sole discretion, either to terminate this Lease or to require
Tenant to make immediate payment of such increased insurance premium. If Tenant
fails to maintain any insurance, which Tenant is required to maintain pursuant
to this Section 1, Tenant shall be liable to Landlord for any loss or costs
resulting from such failure to maintain. Tenant may not self-insure against any
risks required herein to be covered by insurance.
1.2 Tenant Indemnity. Except to the extent arising from and caused by the gross
negligence or willful misconduct of Landlord Parties and subject to the waiver
of claims set forth in Section 13, Tenant shall indemnify and hold Landlord
harmless from and defend Landlord against any and all claims or liability for
any injury or damage to any person or property whatsoever: (i) occurring in or
on the Premises; or (ii) occurring in, on, or about any other portion of the
Project to the extent such injury or damage shall be caused by the negligence or
willful misconduct by the Tenant Parties. Tenant further agrees to indemnify and
hold Landlord harmless from, and defend Landlord against, any and all claims,
losses, or liabilities (including damage to Landlord's property) arising from
(x) any breach of this Lease by Tenant, and/or (y) the conduct of any work or
business of Tenant Parties in or about the Project, including, but not limited
to any release, discharge, storage or use of any Hazardous Substance. In the
event of a discrepancy between the terms of this section and the terms of
Section 35 of the Lease concerning Hazardous Substance liability, the latter
shall control.
1.3 Tenant's Insurance Policies. Tenant shall, at its own expense, at all times
during the term of this Lease provide and maintain in effect those insurance
policies and minimum limits of coverage as designated below, and any other
insurance required by law in any state where Tenant occupies any Premises under
this Lease.
1.3.1 Workers' Compensation Insurance. Workers' Compensation insurance shall be
provided as required by any applicable law or regulation and, in accordance with
the provisions of the laws of the nation, state, territory or province having
jurisdiction over Tenant's employees at the Premises.
1.3.2 Commercial General Liability Insurance. Tenant shall carry Commercial
General Liability insurance, written on ISO occurrence form CG 00 01 01 96 (or a
substitute form providing equivalent coverage), covering all operations by or on
behalf of Tenant at the Premises, and providing insurance for bodily injury,
property damage, personal injury and advertising injury, as those terms are
defined by Commercial General Liability insurance policies, with limits of not
less than $2,000,000 each occurrence and $3,000,000 in the aggregate. Tenant
shall furnish Certificates of Insurance annually to Landlord as evidence of this
required insurance. Landlord, its officers, directors, employees, agents and
invitees shall be included as Additional Insureds for the Commercial General
Liability coverage required to be maintained by Tenant under this Lease.
1.3.3 Automobile Liability Insurance. Tenant shall carry Business Automobile
Liability insurance, including bodily injury and property damage for all
vehicles, including but not limited to all owned, hired (or rented) and
non-owned vehicles. The limits of liability shall not be less than $1,000,000
combined single limit for each accident.
1.3.4 Tenant Improvements. Special form property damage insurance covering all
of the Tenant Improvements; and Tenant's other leasehold alterations and
additions permitted under Section 11 of the Lease, and Tenant's trade fixtures,
merchandise and all personal property from time to time in, on or upon the
Premises, in an amount not less than one hundred percent (100%) of their full
replacement cost, without depreciation, during the Lease Term, providing
protection against any peril included within the classification "Fire and
Extended Coverage", together with insurance against sprinkler damage, vandalism
and malicious mischief. Any insurance policy proceeds shall be used for the
repair or replacement of the property damaged or destroyed unless this Lease
shall cease and terminate under the provisions of Section 18 of the Lease,
whereupon any proceeds of insurance covering the Tenant Improvements and any
alterations or additions permitted under Section 11 of the Lease, shall be
payable to Landlord or to Landlord's designee(s). Insurance coverage called for
hereunder shall also provide for business interruption coverage with a rental
rider for a 12-month period. Any deductible provided in such insurance shall not
exceed Five Thousand Dollars ($5,000.00) per occurrence without written approval
from Landlord.
1.3.5 Tenant's Use of Consultants and Contractors on Premises. In the event
Tenant utilizes the services of consultants and/or contractors on the Premises,
Tenant shall require from or provide for all such consultants and contractors
the same minimum insurance requirements detailed above. Landlord reserves the
right to request from Tenant copies of such consultants' and contractors'
certificates and/or certified copies of insurance policies when deemed
necessary.
1.4 Policies to be Primary. The policies carried by Tenant as required above
shall be endorsed to stipulate that Tenant's insurance shall be primary to and
noncontributory with any and all other insurance maintained or otherwise
afforded to Landlord, its officers, directors, employees and agents. With
respect to Tenant's general liability policy, Tenant and its respective insurers
waive all rights of recovery or subrogation against Landlord, its officers,
directors, employees, agents, and insurers, except as prohibited by law.
1.5 Certificates of Insurance. Certificates of Insurance shall be furnished by
Tenant to Landlord before the commencement of this Lease by Tenant and within
thirty (30) days prior to each policy renewal. Any acceptance of insurance
certificates by Landlord shall not limit or relieve Tenant of the duties and
responsibilities with respect to maintaining insurance assumed by it under this
Lease. NOTICE TO TENANT: IN ACCORDANCE WITH THE TERMS OF THIS LEASE, TENANT MUST
PROVIDE EVIDENCE OF THE REQUIRED INSURANCE TO LANDLORD'S MANAGEMENT AGENT PRIOR
TO OCCUPANCY OF THE PREMISES.
1.6 Landlord May Provide Insurance. If Tenant does not comply with the insurance
requirements of this Lease, Landlord may, at its option, provide insurance
coverage to protect Landlord and Tenant and add the cost of such coverage to the
fees invoiced by Landlord.
1.7 Waiver of Subrogation. Notwithstanding anything to the contrary in the
Lease, Landlord and Tenant each hereby waives all rights of recovery against the
other and the other's agents on account of loss and damage occasioned to the
property of such waiving party to the extent only that such loss or damage is
required to be insured against under any property insurance policies required by
this Lease (whether or not self-insured) to the extent of the amount of property
insurance proceeds that party would have received under that insurance if that
party had maintained all property insurance it is required to maintain under
this Lease; provided, however, that this release shall not be applicable to the
portion of any damage which is not reimbursed by the damaged party's insurer
because of the "deductible" permitted hereunder in the damaged party's insurance
coverage. By this waiver it is the intent of the parties that except as provided
immediately above, neither Landlord nor Tenant shall be liable to any insurance
company (by way of subrogation or otherwise) insuring the other party for any
loss or damage insured against under any property insurance policies required by
this Lease, even though such loss or damage might be occasioned by the
negligence of such party, its agents, employees, contractors, guests or
invitees.