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EXHIBIT 10.10
STANDARD COMMERCIAL LEASE
BETWEEN
GREENWOOD PLAZA PARTNERS, LLC
AS LESSOR
AND
NEW ERA OF NETWORKS, INC.
AS LESSEE
ONE/TWO Greenwood Plaza Net Rent
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TABLE OF CONTENTS
ARTICLE/SECTION Page #
--------------- ------
1.00 BASIC LEASE TERMS 1
1.01 Parties 1
1.02 Leased Premises 1
1.03 Term 1
1.04 Base Rent 1
1.05 Address for Payment of Base Rent 1
1.06 Permitted Use 1
1.07 Security Deposit 1
2.00 RENT 1
2.01 Base Rent 1
2.02 Taxes and Assessments 1
2.03 Utilities 2
2.04 Repairs and Maintenance 2
2.05 Triple Net Lease 2
2.06 Late Payment Charge 2
2.07 Increase in Insurance Premiums 2
2.08 Security Deposit 2
2.09 Holding Over 2
3.00 OCCUPANCY AND USE 3
3.01 Use 3
3.02 Signs 3
3.03 Compliance with Laws, Rules and Regulations 3
3.04 Warranty of Possession 3
3.05 Inspection 3
3.06 Acceptance of Leased Premises 3
3.07 Non-Smoking Building 3
4.00 UTILITIES AND SERVICE 3
4.01 Building Services 3
4.02 Theft or Burglary 3
4.03 Intentionally Deleted 3
4.04 Intentionally Deleted 3
4.05 Window Coverings 3
4.06 Intentionally Deleted 3
5.00 REPAIRS AND MAINTENANCE 4
5.01 Intentionally Deleted 4
5.02 Intentionally Deleted 4
5.03 Intentionally Deleted 4
5.04 Lessee Damages 4
6.00 ALTERATIONS AND IMPROVEMENTS 4
6.01 Lessor Improvements 4
6.02 Lessee Improvements 4
6.03 Mechanics Lien 4
7.00 CASUALTY AND INSURANCE 4
7.01 Substantial Destruction 4
7.02 Partial Destruction 4
7.03 Lessor's Insurance 4
7.04 Waiver of Subrogation 4
7.05 Hold Harmless 5
8.00 CONDEMNATION 5
8.01 Substantial Taking 5
8.02 Partial Taking 5
9.00 ASSIGNMENT OR SUBLEASE 5
9.01 Lessor Assignment 5
9.02 Lessee Assignment 5
9.03 Conditions of Assignment 5
9.04 Subordination 5
9.05 Estoppel Certificates 5
10.00 INTENTIONALLY DELETED 6
11.00 DEFAULT AND REMEDIES 6
11.01 Default by Lessee 6
11.02 Remedies for Lessee's Default 6
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TABLE OF CONTENTS (CONTINUED)
12.00 INTENTIONALLY DELETED 6
13.00 HAZARDOUS MATERIALS 6
13.01 Hazardous Materials 6
14.00 DEFINITIONS 7
14.01 Abandon 7
14.02 Act of God or Force Majeure 7
14.03 Building 7
14.04 Commencement Date 7
14.05 Completion Date 7
14.06 Square Feet 7
15.00 LESSEE'S INSURANCE 7
15.01 Fire and Extended Coverage 7
15.02 General Liability and Property 7
15.03 Endorsements 7
16.00 MISCELLANEOUS 8
16.01 Waiver 8
16.02 Act of God 8
16.03 Attorney's Fees 8
16.04 Successors 8
16.05 Rent Tax 8
16.06 Captions 8
16.07 Notice 8
16.08 Submission of Lease 8
16.09 Corporate Authority 8
16.10 Severability 8
16.11 Lessor's Liability 8
16.12 Indemnity 8
16.13 Amendment 8
16.14 Limitation of Warranties 8
16.15 Governing Law 9
16.16 Parking 9
16.17 Entire Agreement 9
16.18 Renewal Option 9
16.19 Intentionally Deleted 9
Lessor/Lessee Signature Block 9
EXHIBITS
Exhibit "A" - The Leased Premises 10
Exhibit "A-1" - The Leased Premises Floor Plan 11
Exhibit "B" - Rules and Regulations 20
Exhibit "C" - Lessor Improvements 21
Exhibit "D" - Acceptance of Leased Premises/Tenant Estoppel Certificate 22
Exhibit "E" - Rent Schedule 23
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STANDARD COMMERCIAL LEASE
ARTICLE 1.00 BASIC LEASE TERMS
1.01 PARTIES. This Standard Commercial Lease (this "Lease") made as of this
22nd day of July, 1999, is entered into by and between: Greenwood Plaza
Partners, LLC. (Lessor), and New Era of Networks, Inc., a Delaware corporation,
(Lessee)
1.02 LEASED PREMISES. In consideration of the rents, terms, provisions and
covenants of this Lease, Lessor hereby leases, lets and demises to Lessee the
following described premises ("Leased Premises") as further delineated on
Exhibit "A" attached hereto and by reference incorporated herein:
Approximately 64,443 RSF, on all three (3) floors
XXX Xxxxxxxxx Xxxxx
0000 Xxxxxxxxx Xxxxx Xxxx.
Xxxxxxxxx, Xxxxxxxx 00000
And
Approximately 134,634 RSF, on all five (5) floors, the Basement and Atrium
TWO Greenwood Plaza
0000 Xxxxxxxxx Xxxxx Xxxx.
Xxxxxxxxx, Xxxxxxxx 00000
1.03 TERM. Subject to and upon the conditions set forth herein, the term of
this Lease shall commence on the "Commencement Date" (which Lessor shall use its
best efforts to establish as August 13, 1999 for the first floor of ONE
Greenwood, October 8, 1999 for the second floor of ONE Greenwood, November 19,
1999 for the third floor of One Greenwood and May 1, 2000 for all of Two
Greenwood.) The term of this Lease shall expire 120 months thereafter, May 1,
2010 (the "Expiration Date").
1.04 BASE RENT. Base rent is per the following rent schedule:
Years 1-5 $18.50 per rentable square foot per year
Years 6-8 $21.75 per rentable square foot per year
Years 9-10 $23.80 per rentable square foot per year
1.05 ADDRESS FOR PAYMENT OF BASE RENT.
Greenwood Plaza Partners, LLC
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
1.06 PERMITTED USE. General Office
1.07 SECURITY DEPOSIT. Security deposit is $80,000.00.
The Security Deposit will be returned, together with interest earned
on it as long as no default, on the fifth anniversary of the
Commencement Date, so long as no event of default has occurred before
that date.
ARTICLE 2.00 RENT
2.01 BASE RENT. Lessee shall pay monthly as base rent during the term of
this Lease the sum of money set forth in Section 1.04 of this Lease, which
amount shall be payable to Lessor at the address shown above. One (1) monthly
installment of base rent for the first month's rent shall be due and payable on
the Commencement Date, and a like monthly installment shall be due and payable
as per the Rent Schedule - Exhibit E, on or before the first day of each
calendar month during the term of this Lease succeeding the Commencement Date;
provided,: (a) if the Commencement Date should be a date other than the first
day of a calendar month, the monthly base rent set forth above shall be prorated
to the end of that calendar month, and all succeeding installments of rent shall
be payable on or before the first day of each succeeding calendar month during
the term of this Lease; and (b) if the Completion Date for the additional
portions of the Leased Premises are other than those indicated on Exhibit E,
the monthly base rent shall be prorated accordingly. Lessee shall pay, as
additional rent, all other sums due under this Lease. All rent shall be paid
without demand, setoff, deduction or offsets, except as allowed by this Lease.
2.02 TAXES AND ASSESSMENTS. (a) Lessee agrees to pay (except for Property
Taxes for which the Lessor will escrow monthly from proceeds of Additional Rent
pursuant to Section 2.01), as they become due and payable, and before they
become delinquent, all valorem taxes, both general and special assessments and
governmental charges lawful levied or assessed against the leased premises, or
any part thereof, and upon all the improvements thereto during or with respect
to any period, all or any part of which is included in the term of this Lease or
any renewal or extension thereof and to submit to Lessor promptly evidence of
such payment. Lessee shall pay, in addition to the amount set forth in the
preceding sentence, all taxes and assessments which are not presently in effect,
but which may hereinafter be enacted and which would be chargeable to Lessee as
a consequence of the ownership of the leased premises if in fact Lessee were the
owner thereof in fee simple at the time of such assessment of levy. All such
taxes and assessments for, during or with respect to the year in which this
Lease is terminated, shall be prorated as of the date of termination. Lessee
shall also, in like manner, pay all and any interest and penalties thereon
occasioned by its own failure to pay such taxes and assessments as they become
due and payable. Lessor shall without delay transmit to Lessee all notices and
statements received by Lessor of taxes due or assessments made with respect to
leased premises.
(b) Notwithstanding anything herein to the contrary, Lessee shall not be
obligated to pay any income, franchise, corporation, estate,
inheritance, succession or transfer tax levied against Lessor.
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(b) Lessee shall have the right to contest or review by legal or other
proceedings, or in such other manner as Lessee may deem suitable, any
assessed valuation, real estate tax or assessment; provided that,
unless Lessee will have paid such tax or assessment under protest,
Lessee shall furnish to Lessor a surety bond or other security
satisfactory to Lessor securing the payment of such contested item or
items and all interest, penalty and cost in connection therewith upon
the final determination of such contest or review. Lessor shall, if so
requested by Lessee, join in any proceeding for contest or review or
such taxes or assessments, but the entire cost of such proceedings
(including any cost, expense or attorney's fees sustained by Lessor in
connection therewith) shall be borne by Lessee. Any amount already
paid by Lessee and subsequently recovered as the result of such
contest or review shall be for the account of Lessee.
(c) In the event Lessee fails to pay any taxes and assessments as required
by the paragraph. Lessor may at its option pay such taxes and
assessments and invoice Lessee for such amounts as additional rental
pursuant to Section 2.01.
2.03 UTILITIES. The cost and charges for all utility services, including
but not limited to gas, water, electricity, telephone, refuse or garbage
collection and sewerage shall be paid by Lessee. Lessor shall not be required to
pay for any utility service, upkeep or supplies in connection with the leased
premises.
2.04 REPAIRS AND MAINTENANCE. Unless otherwise expressly provided, (a)
Lessor shall not be required to make any improvements, replacements or repairs
of any kind or character to the leased premises of the improvements and
equipment situated thereon, during the term of the Lease.
(b) Throughout the term of the Lease, Lessee at its sole cost and expense,
shall take good care of the leased premises, all improvements,
equipment, appurtenances of the leased premises, alleyways,
passageways, parking areas, sidewalks, curbs and vaults adjoining the
leased premises, and shall at all times make all necessary repairs and
replacements thereto, whether structural or nonstructural. The term
repairs as used in this paragraph shall include, but not limited to,
all necessary or appropriate replacements and renewals, and all
necessary or appropriate alterations, additions and betterment's.
(c) The necessity for and adequacy of the repairs to the leased premises
made or required to be made pursuant to this paragraph shall be
measured by standards which are appropriate for first-class building
of similar construction and age containing similar facilities and
which are necessary to maintain the leased premises at all times
consistent with such standards. Lessee shall promptly (or immediately
in case of emergency), make such repairs, replacements, renewals or
additions, or perform such items of maintenance to the leased premises
as required in order to maintain the leased premises at the standard
required by the applicable provisions for this Lease.
(d) Lessor shall not be required to furnish any services or facilities or
to make any repairs in or about the leased premises, Lessee hereby
assuming the full and sole responsibility for all repairs to, and for
any condition, operation, maintenance and management of, the Leased
premises as of the date and during the term of this Lease.
(e) Lessee shall, at its own sole cost and expense, keep the sidewalks,
curbs, entrances, passageways, parking spaces and areas free of snow,
ice rubbish and obstructions.
2.05 TRIPLE NET INTENT. It is the purpose and intent of Lessor that the
rent provided in Section 2.01 shall be absolutely net to Lessor, and that Lessee
shall pay, without notice or demand, and without abatement, deduction or setoff
and save Lessor harmless from and against, all costs, taxes, insurance, exposure
of repair, and other charges and expenses and obligations of every kind and
nature whatsoever relating to the leased premises which may arise or become due
during the term of this Lease; and in the event of any nonpayment of any of the
foregoing, Lessor shall have, in addition to all other rights and remedies, all
of the rights and remedies provided for herein or by law in the case of
nonpayment of rent.
2.06 LATE PAYMENT CHARGE. Other remedies for nonpayment of rent
notwithstanding, if the monthly base rent and additional rent payment is not
received by Lessor on or before the first day of the month for which the rent is
due, or if any other payment due Lessor by Lessee is not received by Lessor on
or before the first day of the month next following the month in which Lessee
was invoiced, a late payment charge equal to the greater of $250.00 or five
percent (5%) of such past due amount shall become due and payable, after a 5 day
grace period, in addition to such amounts owed under this Lease.
2.07 INCREASE IN INSURANCE PREMIUMS. If an increase in any insurance
premiums paid by Lessor for the Building is caused by Lessee's use of the
Leased Premises in a manner other than as set forth in Section 1.06, or if
Lessee vacates the Leased Premises and causes an increase in such premiums, then
Lessee shall pay to Lessor, as additional rent, the amount of such increase to
Lessor.
2.08 SECURITY DEPOSIT. The security deposit set forth in Section 1.07 shall
be held by Lessor in a federally insured interest bearing account for the
performance of Lessee's covenants and obligations under this Lease, it being
expressly understood that the security deposit shall not be considered an
advance payment of rental or a measure of Lessor's damage in case of default
hereunder by Lessee. Upon the occurrence of any event of default by
Lessee or breach by Lessee of Lessee's covenants under this Lease, Lessee
forfeits any rights to the interest earned and Lessor may, from time to time,
without prejudice to any other remedy, use the security deposit to the extent
necessary to make good any arrears of base rent or additional rent, or to repair
any damage or injury, or pay any expense or liability incurred by Lessor as
a result of the event of default or breach of covenant, and so long as Lessee is
not in default hereunder, any remaining balance of the security deposit shall
be returned by Lessor to Lessee within thirty (30) days following the fifth
anniversary of the Commencement Date so long as no event of default has occurred
before that date or sooner termination of this Lease. If any portion of the
security deposit is so used or applied, Lessee shall, upon ten (10) days written
notice from Lessor, deposit with Lessor by cash or cashier's check an amount
sufficient to restore the security deposit to its original amount.
2.09 HOLDING OVER. In the event that Lessee does not vacate the Leased
Premises upon the Expiration Date or sooner termination of this Lease, Lessee
shall be a tenant at will for the holdover period and all of the terms and
provisions of this Lease shall be applicable during that period, except that
Lessee shall pay Lessor as rental for the period of such holdover an amount
equal to 150% of the base rent plus additional rent which would have been
payable by Lessee had the holdover period been a part of the original term of
this Lease. Lessee agrees to vacate and deliver the Leased Premises to
Lessor upon Lessee's receipt of notice from Lessor to vacate. The rental payable
during the holdover period shall be payable to Lessor on demand. No holding
over by Lessee, whether with or without the consent of Lessor, shall operate to
extend the term of this Lease.
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ARTICLE 3.00 OCCUPANCY AND USE
3.01 USE. Lessee warrants and represents to Lessor that the Leased
Premises shall be used and occupied only for the purpose as set forth in Section
1.06. Lessee shall occupy the Leased Premises, conduct its business and control
its agents, employees, contractors, invitees and visitors in such a manner
as is lawful, reputable. Lessor represents and warrants to Lessee that on the
Commencement Date, the Leased Premises will be in compliance with all current
laws, ordinances, orders, rules, regulations, and other governmental
requirements relating to the use, condition, and occupancy of the Leased
Premises, and all rules, orders, regulations and any body having jurisdiction
over the Leased Premises and the Building of which the Leased Premises are a
part. Lessee shall not permit any operation in the Leased Premises, which
interferes with Lessor in its management of the Building. Lessee shall neither
permit any waste on the Leased Premises nor allow the Leased Premises to be used
in any way, which would, in the opinion of Lessor, be extra, hazardous on
account of fire or which would in any way increase or render void the insurance
on the Building.
3.02 SIGNS. No sign of any type or description shall be erected, placed or
painted on the exterior of the Leased Premises or Building except those signs
submitted by Lessee to Lessor in writing and approved by Lessor in writing, and
which signs are in conformance with Lessor's sign criteria established for the
Building.
3.03 COMPLIANCE WITH LAWS, RULES AND REGULATIONS. Lessee, at Lessee's sole
cost and expense, shall comply with all laws (and interpretations thereof),
ordinances, orders, rules and regulations, now in force or which may hereafter
be in force, of state, federal, municipal or other agencies or bodies having
jurisdiction over use, condition and occupancy of the Leased Premises. Lessee
will comply with the rules and regulations of the Building adopted by Lessor
which are set forth on Exhibit "B", attached to and incorporated by reference
into this Lease. Lessor shall have the right, at all times, to change and/or
amend the rules and regulations in any reasonable manner as may be deemed
advisable for the safety, care, cleanliness, preservation of good order and
operation or use of the Building or the Leased Premises. All changes and
amendments to the rules and regulations of the Building will be sent by Lessor
to Lessee in writing and shall thereafter be carried out and observed by Lessee.
3.04 WARRANTY OF POSSESSION. Lessor warrants that it has the right and
authority to execute this Lease, and Lessee, upon payment of the required rents
and subject to the terms, conditions, covenants and agreements contained in this
Lease, shall have possession of the Leased Premises during the full term of
this Lease as well as any extension or renewal thereof, if any. Lessor shall not
be responsible for the acts or omissions of any other lessee or third party that
may interfere with Lessee's use and enjoyment of the Leased Premises.
3.05 INSPECTION. Lessor shall have the right, at all reasonable hours, upon
reasonable requests, to enter the leased premises for the following reasons:
inspections, determining Lessee's use of the leased premises, or determining if
an act of default under this Lease has occurred.
3.06 ACCEPTANCE OF LEASED PREMISES: As each portion of the Leased Premises
is ready for occupation per the terms of 1.03, Lessee shall execute an
Acceptance of Premises/Tenant Estoppel Certificate essentially in the form
attached hereto as Exhibit "D" and by reference incorporated herein,
acknowledging that the Lessee has assumed possession of that portion of the
Leased Premises and confirming the Commencement Date/Completion Date for the
term of this Lease as described in Section 1.03. Said Acceptance of
Premises/Tenant Estoppel Certificate shall be executed by Lessee at the time
Lessee receives keys and assumes possession of each portion of the Leased
Premises. Lessor will construct the Leased Premises promptly based upon an
agreed construction schedule in a good and workmanlike manner and in
conformance with all applicable federal, state and local laws. Lessor warrants
the design, construction and materials of the Leased Premises and materials of
the Leased Premises and all components of the Leased Premises including,
without limitation, heating, ventilating, air conditioning, roof, mechanical,
electrical, and other systems for one (1) year after the date of Substantial
Completion (for each portion of the Leased Premises from the dates of the
Acceptance of Premises Tenant Estoppel Certificate), and will repair, restore,
renovate and replace as its cost with goods and material of equal quality in
any part of the Premises that is or becomes defective during that period.
Lessor will indemnify Lessee against and hold Lessee harmless from any material
loss, liability and expense (including reasonable attorney's fees and court
costs) arising out of a breach of this warranty or any material defect of
workmanship's, design or materials in that period.
3.07 NON-SMOKING BUILDING. The Lessor has adopted a policy of non-smoking
(for all employees, agents or invitees) in all confined spaces, common areas
or leased areas, within the Building. The Lessee, his employees, agents or
invitees, will identify certain designated areas outside the Building for
smoking. Lessee hereby acknowledges that such designated outdoor areas are
necessary and reasonable to prevent smoking by Lessee, Lessee's employees,
agents and invitees in unauthorized areas of the Building.
ARTICLE 4.00 UTILITIES AND SERVICE
4.01 BUILDING SERVICES. Lessor shall make available gas, water, electricity
and telephone to the Leased Premises during the term of this Lease.
4.02 THEFT OR BURGLARY. Lessor shall not be liable to Lessee for losses to
Lessee's property or personal injury caused by criminal acts or entry by persons
into the Leased Premises or the Building.
4.03 INTENTIONALLY DELETED.
4.04 INTENTIONALLY DELETED.
4.05 WINDOW COVERINGS. Lessor shall furnish and install window coverings on
all exterior windows in the Leased Premises so as to maintain a uniform
exterior appearance of the Building. Lessee shall not remove or replace these
window coverings or install any other window covering which would affect the
exterior appearance of the Building. Lessee may install lined or unlined over
draperies on the interior sides of the window coverings furnished by Lessor
for interior appearance or to reduce light transmission, provided such over
draperies do not affect the exterior appearance of the Building or affect the
operating of the Building's heating, ventilating and air conditioning systems.
4.06 INTENTIONALLY DELETED.
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ARTICLE 5.00 REPAIRS AND MAINTENANCE
5.01 INTENTIONALLY DELETED.
5.02 INTENTIONALLY DELETED.
5.03 INTENTIONALLY DELETED.
5.04 LESSEE DAMAGES. Lessee shall deliver the Leased Premises to Lessor in
as good condition as existed at the Commencement Date of this Lease, ordinary
wear and tear excepted. The cost and expense of any repairs necessary to
restore the condition of the Leased Premises shall be borne by Lessee.
ARTICLE 6.00 ALTERATIONS AND IMPROVEMENTS
6.01 LESSOR IMPROVEMENTS. If construction to the Leased Premises is to be
performed by Lessor prior to or during Lessee's occupancy, Lessor shall use
reasonable efforts to complete the construction of the improvements to the
Leased Premises, in accordance with plans and specifications agreed to by Lessor
and Lessee, which plans and specifications are attached hereto as Exhibit "C"
and are made a part of this Lease by reference. Within seven (7) days of receipt
of plans and specifications, Lessee shall execute a copy of the plans and
specifications and, if applicable, change orders setting forth the amount of any
costs to be borne by Lessee. In the event Lessee fails to execute the plans and
specifications and change order within the seven (7) day period, Lessor may, at
its sole option, declare this Lease cancelled or notify Lessee that the base
rent shall commence on the Completion Date even though the improvements to be
constructed by Lessor may not be complete. Any changes or modifications to the
approved plans and specifications shall be made and accepted by written change
order or agreement signed by both Lessor and Lessee and shall constitute an
amendment to this Lease.
6.02 LESSEE IMPROVEMENTS. Lessee shall not make or allow to be made any
alterations or physical additions in or to the Leased Premises without first
obtaining the prior written consent of Lessor, which consent may in the
reasonable judgement of Lessor be denied. Any alterations, physical additions or
improvements made by Lessee to the Leased Premises shall at once become the
property of Lessor and shall be surrendered to Lessor upon the Expiration Date
or sooner termination of this Lease; provided, however, that Lessor, at its
option, may require Lessee to remove any physical additions and/or repair any
alterations in order to restore the Leased Premises to the condition existing at
the Commencement Date, all costs of removal and/or alterations to be borne by
Lessee. This Section 6.02 shall not apply to moveable equipment or furniture
owned by Lessee, which may be removed by Lessee at the Expiration Date or sooner
termination of the term of this Lease only if Lessee is not then in default and
if such equipment and furniture are not then subject to any other rights, liens
and interest of Lessor.
6.03 MECHANICS LIEN. Lessee shall not permit any mechanic's or
materialman's lien(s) or other lien to be placed upon the Leased Premises or the
Building on account done by, for or at the request of Lessee and nothing in this
Lease shall be deemed or construed in any way as constituting the consent or
request of Lessor, express or implied, by inference or otherwise, to any person
for the performance of any labor or the furnishing of any materials to the
Leased Premises, or any part thereof, nor as giving Lessee any right, power, or
authority to contract for or permit the rendering of any services or the
furnishing of any materials that would give rise to any mechanic's,
materialman's or other lien against the Leased Premises or the Building. In the
event any such lien is attached to the Leased Premises or the Building, then, in
addition to any other right or remedy of Lessor, Lessor may, but shall not be
obligated to, obtain the release of or otherwise discharge the same. Lessee
shall pay any amount paid by Lessor for any of the aforesaid purposes to Lessor
on demand as additional rent. At Lessor's request, Lessee shall post a
completion bond or other financial security deemed adequate by Lessor to avoid
the potential for the placement of liens upon the property.
ARTICLE 7.00 CASUALTY AND INSURANCE
7.01. SUBSTANTIAL DESTRUCTION. If the Leased Premises should be totally
destroyed by fire or other casualty, or if the Leased Premises should be damaged
so that rebuilding cannot reasonably be completed within ninety (90) working
days after the date of written notification by Lessee to Lessor of the
destruction, this Lease shall terminate and Lessee shall be relieved of its
obligation to pay base rent and additional rent during the unexpired portion of
the Lease, effective as of the date of the substantial destruction.
7.02 PARTIAL DESTRUCTION. If the Leased Premises should be partially
damaged by fire or other casualty, and rebuilding or repairs can reasonably be
completed within ninety (90) working days from the date of written notification
by Lessee to Lessor of the destruction, this Lease shall not terminate, and
Lessor shall at its sole risk and expense proceed with reasonable diligence to
rebuild or repair the Building or other improvements to substantially the same
condition in which they existed prior to the damage. If the Leased Premises are
to be rebuilt or repaired and are untenantable in whole or in part following the
damage, the rentals payable under this Lease during the period for which the
Leased Premises are untenantable shall be adjusted to such an extent as may be
fair and reasonable under the circumstances.
7.03 LESSOR'S INSURANCE. Lessor shall maintain two million dollars in
liability insurance, however, Lessor shall not be obligated any way or manner to
insure any personal property (including, but not limited to, any furniture,
machinery, goods or supplies) of Lessee upon or within the Leased Premises, any
fixtures installed or paid for by Lessee upon or within the Leased Premises, or
any improvements which Lessee may construct on the Leased Premises.
7.04 WAIVER OF SUBROGATION. Anything in this Lease to the contrary
notwithstanding, Lessor and Lessee hereby waive and release each other of and
from any and all right of recovery, claim, action or cause of action, against
each other, their agents, officers and employees, for any loss or damage that
may occur to the Leased Premises, improvements to the Building of which the
Leased Premises are a part, or personal property within the Building, by reason
of fire or the elements, regardless of cause or origin, including negligence of
Lessor or Lessee and
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their agents, contractors, officers and employees. Lessor and Lessee agree
immediately to give their respective insurance companies which have issued
policies of insurance covering all risk of direct physical loss, written notice
of the terms of the mutual waivers contained in this Section 7.04, and to have
the insurance policies properly endorsed, if necessary, to prevent the
invalidation of the insurance coverage by reason of the mutual waivers.
7.05 HOLD HARMLESS. Lessor shall not be liable to Lessee's employees,
contractors, agents, invitees, licensees or visitors, or to any other person,
for an injury to person or damage to property on or about the Leased Premises
caused by any act or omission of Lessee, its agents, servants or employees, or
of any other person entering upon the Leased Premises under express or
implied invitation by Lessee, or caused by the improvements located on the
Leased Premises becoming out of repair, the failure or cessation of any service
provided by Lessor, or caused by leakage of gas, oil, water or steam or by
electricity emanating from the Leased Premises. Lessee agrees to indemnify and
hold harmless Lessor of and from any loss, attorney's fees, expenses or claims
arising out of any such damage or injury.
ARTICLE 8.00 CONDEMNATION
8.01 SUBSTANTIAL TAKING. If all or a substantial part of the Leased
Premises are taken for any public or quasi-public use under any governmental
law, ordinance or regulation, or by right of eminent domain or by purchase in
lieu thereof, and the taking would prevent or materially interfere with the use
of the Leased Premises for the use specified in Section 1.06, then this Lease
shall terminate and Lessee shall be relieved of its obligation to pay base rent
and additional rent during the unexpired portion of the term of this Lease
effective on the date physical possession is taken by the condemning authority.
Lessee shall have no claim to the condemnation award or proceeds in lieu
thereof.
8.02 PARTIAL TAKING. If a portion of the Leased Premises shall be taken for
any public or quasi-public use under any government law, ordinance or
regulation, or by right of eminent domain or by purchase in lieu thereof, and
this Lease is not terminated as provided in Section 8.01, Lessor shall, at
Lessor's sole risk and expense, restore and reconstruct the Building and other
improvements on the Leased Premises to the extent necessary to make it
reasonably tenantable. The rental payable during the unexpired portion of the
term of this Lease shall be adjusted to such an extent as may be fair and
reasonable under the circumstances. Lessee shall have no claim to the
condemnation award or proceeds in lieu thereof.
ARTICLE 9.00 ASSIGNMENT OR SUBLEASE
9.01 LESSOR ASSIGNMENT. Lessor shall have the right to sell, transfer or
assign, in whole or in part, its rights and obligations under this Lease and in
the Building to a transferee who is capable of performing Lessor's obligations
under this Lease and assumes and agrees to do so. Any such sale, transfer or
assignment shall operate to release Lessor from any and all liabilities under
this Lease arising after the date of such sale, assignment or transfer.
9.02 LESSEE ASSIGNMENT. Lessee shall not assign, in whole or in part, this
Lease, or allow it to be assigned, in whole or in part, by operation of law or
otherwise (including without limitation by transfer of a majority interest of
stock, merger, or dissolution, which transfer of majority interest of stock,
merger or dissolution shall be deemed an assignment) or mortgage or pledge the
same, or sublet the Leased Premises, in whole or in part, without the prior
written consent of Lessor which will not be unreasonably withheld, conditioned
or delayed, and in no event shall any such assignment or sublease ever release
Lessee or any guarantor from any obligation or liability hereunder. No assignee
or sublease of the Leased Premises or any portion thereof may assign or sublet
the Leased Premises or any portion thereof without the prior written consent
of Lessor, which will not be unreasonably withheld, conditioned or delayed.
9.03 CONDITIONS OF ASSIGNMENT. If Lessee desires to assign or sublet all or
any part of the Leased Premises over 3,000 Rentable Square Feet, Lessee shall so
notify Lessor at least thirty (30) days in advance of the date on which Lessee
desires to make such assignment or sublease. Lessee shall submit to Lessor a
non-refundable processing fee of $300.00 for each such requests and shall
provide Lessor with a copy of the proposed assignment or sublease and such
reasonable information as Lessor might request concerning the proposed sublease
or assignee to allow Lessor to make informed judgments as to the financial
condition, reputation, operations and general desirability of the proposed
sublessee or assignee. Within fifteen (15) days after Lessor's receipt of
Lessee's proposed assignment or sublease and all required information concerning
the proposed assignee, to include a non-refundable processing fee, Lessor shall
have the following options: (1) to cancel this Lease as to the portion thereof
proposed to be assigned or subleased; (2) to consent to the proposed assignment
or sublease, (3) to refuse, in the exercise of its good faith and reasonable
judgement, to consent to the proposed assignment or sublease, which refusal
shall be deemed to have been exercised unless Lessor gives Lessee written notice
providing otherwise. Upon the occurrence of any event of default, if all or any
part of the Leased Premises are then assigned or sublet, Lessor, in addition to
any other remedies provided by this Lease or provided by law, may, at its
option, collect directly from the assignee or sublessee all rents becoming due
to Lessee by reason of the assignment or sublease, and Lessor shall have a
security interest in all properties on the Leased Premises to secure payment of
such sums. Any collection directly by Lessor from the assignee or sublessee
shall not be construed to constitute a novation or a release of Lessee or any
guarantor from the further performance of its obligations under this Lease.
9.04 SUBORDINATION. Lessee accepts this Lease subject and subordinate to
any recorded mortgage or deed of trust lien presently existing or hereafter
created upon the Building and to all existing recorded restrictions, covenants,
easements and agreements with respect to the Building. Lessor is hereby
irrevocably vested with full power and authority to subordinate Lessee's
interest under this Lease to any first mortgage or deed of trust lien hereafter
placed on the Leased Premises or the Building, so long as Lessee receives a
subordination, non-disturbance and attornment agreement in form and substance
reasonably satisfactory to it and Lessee shall, upon demand, execute additional
instruments subordinating this Lease as Lessor may require. If the interests of
Lessor under this Lease shall be transferred by reason of foreclosure or other
proceedings for enforcement of any first mortgage or deed of trust lien on the
Leased Premises or the Building, Lessee shall be bound to, the transferee
(sometimes hereinafter called the "Purchaser") at the option of the Purchaser,
under the terms, covenants and conditions of this Lease for the balance of the
term of this Lease remaining, including any extensions or renewals, with the
same force and effect as if the Purchaser were Lessor under this Lease, and, if
requested by the Purchaser, Lessee agrees to attorn to the Purchaser, including
the first mortgagee under any such mortgage if it be the Purchaser, as its
Lessor.
9.05 ESTOPPEL CERTIFICATES. Lessee shall furnish, from time to time, within
ten (10) days after receipt of a request from Lessor or Lessor's
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mortgagee, a statement certifying, if applicable, the following; Lessee is in
possession of the Leased Premises; the Leased Premises are acceptable; the Lease
is in full force and effect; the Lease is unmodified; Lessee claims no present
charge, lien or claim of offset against rentals; the base rent and additional
rent is paid for the current month, but is not prepaid for more than one (1)
month and will not be prepaid for more than one (1) month in advance; there is
no existing default by reason of some act or omission by Lessor; and such other
matters as may be reasonably required by Lessor or Lessor's mortgagee. Lessee's
failure to deliver such statement, in addition to being a default under this
Lease, shall be deemed to establish conclusively that this Lease is in full
force and effect except as declared by Lessor, that Lessor is not in default of
any of its obligations under this Lease, and that Lessor has not received more
than one (1) month's Base rent and additional rent in advance.
ARTICLE 10.00 INTENTIONALLY DELETED
ARTICLE 11.00 DEFAULT AND REMEDIES
11.01 DEFAULT BY LESSEE. The following shall be deemed to be events of
default by Lessee under this Lease: (1) Lessee shall fail to pay when due any
installment of base rent or additional rent or any other payment required
pursuant to this Lease; or (2) Lessee shall abandon or vacate all or any
substantial portion of the Leased Premises; or (3) Lessee shall materially fail
to comply with any term, provision or covenant of this Lease, other than the
payment of base rent and additional rent, and the failure is not cured within
ten (10) days after written notice to Lessee, unless the failure cannot
reasonably be cured within ten (10) days, in which event Lessee will not be in
default so long as it commences the cure within ten (10) days and diligently
pursues it to completion; or (4) Lessee shall file a petition or be adjudged
bankrupt or insolvent under any applicable federal or state bankruptcy or
insolvency law or admit that it cannot meet its financial obligations as they
become due; or a receiver or trustee shall be appointed for all or substantially
all of the assets of Lessee; or Lessee shall make a transfer in fraud of
creditors or shall make an assignment for the benefit of creditors; or (5)
Lessee shall do or permit to be done any act which results in a lien being filed
against the Leased Premises or the Building of which the Leased Premises are a
part and the lien is not released within thirty (30) days after Lessee received
notice of it.
11.02 REMEDIES FOR LESSEE'S DEFAULT. Upon the occurrence of any event of
default set forth in this Lease, Lessor shall have the option to pursue any one
(1) or more of the remedies set forth herein as proscribed by law: (1) Lessor
may enter upon and take possession of the Leased Premises, by picking or
changing locks if necessary, and lock out, expel or remove Lessee and any other
person who may be occupying all or any part of the Leased Premises, and relet
the Leased Premises on behalf of Lessee and receive the rental directly by
reason of the reletting Lessee agrees to pay Lessor on demand any deficiency
that may arise by reason of any reletting of the Leased Premises; further,
Lessee agrees to reimburse Lessor for any expenditures made by it in order to
relet the Leased Premises, including, but not limited to, leasing commissions,
remodeling and repair costs. (2) Lessor may enter upon the Leased Premises, by
picking or changing locks if necessary, and do whatever Lessee is obligated to
do under the terms of this Lease. Lessee shall reimburse Lessor on demand for
any reasonable and direct expenses which Lessor may incur in effecting
compliance with Lessee's obligations under this Lease; further, Lessee agrees
that Lessor, shall not be liable for any damages resulting to Lessee from
effecting compliance with Lessee's obligations under this Lease unless caused
by the negligence of Lessor, its agents, contractors, or designees. (3) Lessor
may terminate this Lease, in which event Lessee shall immediately surrender the
Leased Premises to Lessor, and if Lessee fails to surrender the Leased
Premises, Lessor may, without prejudice to any other remedy which it may have
for possession or arrearage in base rent and/or additional rent, enter upon and
take possession of the Leased Premises, by picking or changing locks if
necessary, and lock out, expel or remove Lessee and any other person who may be
occupying all or any part of the Leased Premises. Lessee agrees to pay on
demand the amount of all direct loss and damage which Lessor may suffer by
reason of the termination of this Lease under this Section 11.02, whether
through inability to relet the Leased Premises on satisfactory terms or
otherwise. A rent concession or waiver of base rent and/or additional rent
shall not relieve Lessee of any obligation to pay any other charge due and
payable under this Lease including without limitation any sum due under section
2.03. Notwithstanding anything contained in this Lease to the contrary, this
Lease may be terminated by Lessor only by mailing or delivering written notice
of such termination to Lessee, and no other act or omission of Lessor shall be
construed as a termination of this Lease.
ARTICLE 12.00 INTENTIONALLY DELETED
ARTICLE 13.00 HAZARDOUS MATERIALS
13.01 HAZARDOUS MATERIALS. In the event Hazardous Materials, as defined
below, are discovered to be present in, on, or below the Leased Premises or the
Building, Lessee shall not be required to pay any portion of the penalties,
fines or costs related to the presence of Toxic Materials and their removal,
including any costs incurred to comply with any and all rules, regulations,
codes, ordinances, statutes, and other requirements of any lawful governmental
authority respecting Hazardous Materials, pollution, harmful chemicals and other
materials which existed on or below the Leased Premises or the Building prior to
Lessee's occupancy of the Leased Premises; provided, however, if and to the
extent the presence of such Toxic Materials is directly or indirectly caused by
Lessee or its agents, employees or contractors, Lessee shall, at its sole cost
and expense, remove the same.
As used herein, the term "Hazardous Materials" shall include, but not be
limited to, any hazardous or toxic substance, material or waste which is or
becomes regulated by any local governmental authority, the United States
Government, or designated as a "hazardous substance" pursuant to Section 311 of
the Federal Water Pollution Control Act (33 U.S.C. (1317)), defined as a
"hazardous waste" pursuant to Section 1004 of the Federal Resource Conservation
and Recovery Act, 42 U.S.C. (6901 et. seq.) (42 U.S.C. (6903)), or defined as a
"hazardous substance pursuant to Section 101 of the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. (9601 et. seq. (42 U.S.C.
9601)).
Lessee shall not (either with or without negligence) cause or permit the escape,
disposal or release of any biologically or chemically active or other hazardous
substances, or materials in the Leased Premises of the Building. Lessee shall
not allow the storage or use of such substances or materials in any manner not
sanctioned by law or by the highest standards prevailing in the industry for the
storage and use of such
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substances or materials, nor allow to be brought into the Building any such
materials or substances except to use in the ordinary course of Lessee's
business, and then only after prior written notice is given to Lessor of the
identity of such substances or materials. Without limitation, Hazardous
Materials and materials shall include those described in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. Section 9601 et. seq., the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. Section 6901 et. seq., any applicable state or local laws and
the regulations adopted under these acts. If any lender or governmental agency
shall ever require testing to ascertain whether or not there has been any
release of Hazardous Materials, then the reasonable costs thereof shall be
reimbursed by Lessee to Lessor upon demand as additional charges if such
requirement applies to the Leased Premises. In addition, Lessee Shall execute
affidavits, representations and the like from time to time at Lessor's request
concerning Lessee's best knowledge and belief regarding the presence of
Hazardous Materials on the Leased Premises or the Building. In all events,
Lessee shall indemnify Lessor in the manner elsewhere provided in this Lease
from any release of Hazardous Materials on the Leased Premises or the Building
during the term of this Lease occurring, or elsewhere if caused by Lessee or
persons acting under Lessee. The within covenants shall survive the Expiration
Date or earlier termination of this Lease.
ARTICLE 14.00 DEFINITIONS
14.01 ABANDON. "Abandon" is defined as the vacating of all or a
substantial portion of the Leased Premises by Lessee, and whether or not Lessee
is in default of the rental payments due under this Lease.
14.02 ACT OF GOD OR FORCE MAJEURE. An "Act of God" or "Force Majeure" is
defined as strikes, lockouts, sit-downs, material or labor restrictions by any
governmental authority, unusual transportation delays, riots, floods, washouts,
explosions, earthquakes, fire, storms, weather (including wet grounds or
inclement weather which prevents construction), acts of the public enemy, wars,
insurrections and any other cause not reasonably within the control of Lessor
and which by the exercise of due diligence Lessor is unable, wholly or in part,
to prevent or overcome.
14.03 BUILDING. "Building" as used in this Lease means the Building
described in Section 1.02, including the Leased Premises and the land upon
which the Building is situated.
14.04 COMMENCEMENT DATE. "Commencement Date" shall be the date set forth in
Section 1.03. The Commencement Date shall constitute the commencement of the
term of this Lease for all purposes, except as provided in Section 2.01.
14.05 COMPLETION DATE. Each "Completion Date" shall be Substantial
Completion of each portion of the Leased Premises, Building, parking,
landscaping and all Building specifications as described in Exhibit C, subject
only to minor punch list items that do not interfere with Lessee's use of the
Leased Premises for its intended purpose, all of which shall be corrected by
Lessor, at its cost, within sixty (60) days after the Lessee's occupancy and
issuance of an unconditional certificate of occupancy. The cure of the punch
list items will be done with as little disturbance to Lessee as possible. Upon
termination or expiration of this Lease, except for ordinary wear and tear,
damages caused by Lessor or Lessor's representatives, condemnation, and damages,
Lessee shall deliver the Leased Premises back to Lessor in the then as is
condition. The Completion Date of the first floor of ONE Greenwood Plaza shall
constitute the Commencement Date of the term of this Lease for all purposes,
except as provided in Section 2.01. Lessor shall use its reasonable efforts to
establish the Completion Dates as the date set forth in Section 1.03. In the
event that the improvements to the several portions of the Leased Premises have
not in fact been completed as of those dates, Lessee shall notify Lessor in
writing of its objections. Lessor shall have a reasonable time after delivery of
the notice in which to take such corrective action as may be necessary and shall
notify Lessee in writing as soon as it deems such corrective action has been
completed and the applicable portion of the Leased Premises is ready for
occupancy. Upon completion of construction of each portion of the Leased
Premises as described in Section 1.03, Lessee and Lessor shall execute an
Acceptance of Leased Premises/Tenant Estoppel Certificate substantially in the
form of Exhibit "D", attached hereto and incorporated by reference herein.
14.06 SQUARE FEET. "Square Feet" or "Square Foot" as used in this Lease
includes the area contained within the Leased Premises together with a common
area percentage factor of the Leased Premises proportionate to the total area of
the Building.
ARTICLE 15.00 LESSEE'S INSURANCE
15.01 FIRE AND EXTENDED COVERAGE. Lessee shall, during the term of this
lease, maintain at its expense, a policy of fire and extended coverage
insurance, with vandalism and malicious mischief endorsements, on all of its
personal property, including removable trade fixtures located in the Leased
Premises and on additions, improvements and fixtures made or installed by Lessee
to or in the Leased Premises to the extent of at least ninety percent (90%) of
their full replacement value.
15.02 GENERAL LIABILITY AND PROPERTY. Lessee shall, during the term of
this lease, maintain at its expense a policy of commercial general liability
insurance insuring Lessee against liability arising out of the use occupancy or
maintenance of the Leased Premises with liability limits of not less than
$2,000,000 per occurrence, combined single limit for bodily injury and property
damage. In addition, Lessor shall maintain a policy of insurance with premiums
paid in advance, issued by and binding upon an insurance company with a Best
rating of A-9 or better, insuring the Building against all risk of direct
physical loss in an amount to at lease ninety percent (90%) of the full
replacement cost of the Building and its improvements as of the date of the
losses. The policy shall name Lessor as an additional insured.
15.03 ENDORSEMENTS. All insurance to be maintained by Lessee shall (a)
contain an endorsement requiring a minimum of thirty (30) days written notice
from the insurance company to Lessor before termination, cancellation of or
change in the policy; (b) be primary and non-contributing with respect to any
insurance maintained by Lessor; and (c) be issued by an insurance company
satisfactory to Lessor. Prior to the Commencement Date and at all times during
the term hereof, Lessee shall provide Lessor with satisfactory evidence that
Lessee has obtained the required insurance. Lessee shall increase the protection
afforded by the public liability and property damage insurance at Lessor's
reasonable request
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ARTICLE 16.00 MISCELLANEOUS
16.01 WAIVER. Failure of either party to declare an event of default
immediately upon its occurrence, or delay in taking any action in connection
with an event of default, shall not constitute a waiver of such default, but
either party shall have the right to declare the default at any time and take
such action as is lawful or authorized under this Lease. Pursuit of any one (1)
or more of the remedies set forth in Article 11.00 shall not preclude pursuit of
any one (1) or more of the other remedies provided elsewhere in this Lease or
provided by law, nor shall pursuit of any remedy constitute forfeiture or waiver
of any base rent or additional rent or damages accruing to Lessor by reason of
the violation of any of the terms, provisions or covenants of this Lease.
Failure by Lessor to enforce one or more of the remedies provided upon an event
of default by Lessee shall not be deemed or construed to constitute a waiver of
the default or of any other violation or breach of any of the terms, provisions
and covenants contained in this Lease.
16.02 ACT OF GOD. Neither party shall be required to perform any covenant
or obligation in this Lease, or be liable in damages to the other, so long as
the performance or non-performance of the covenant or obligation is delayed,
caused or prevented by an Act or God, Force Majeure or by the other party.
16.03 ATTORNEY'S FEES. In the event either party defaults in the
performance of any of the terms, covenants, agreements, or conditions contained
in this Lease, following a non-appealable judgement, the prevailing party shall
be entitled to recover from the losing party reasonable attorney's fees and cost
of suit.
16.04 SUCCESSORS. This Lease shall be binding upon and inure to the benefit
of Lessor and Lessee and their respective heirs, personal representatives,
successors and assigns. It is hereby covenanted and agreed that should Lessor's
interest in the Leased Premises cease to exist for any reason during the term
of this Lease, then notwithstanding the happening of such event, this Lease
nevertheless shall remain unimpaired and in full force and effect, and Lessee
hereunder agrees to attorn to the then owner of the Leased Premises.
16.05 RENT TAX. If applicable in the jurisdiction where the Leased Premises
is situated, Lessee shall pay and be liable for all rental, sales and use taxes
or other similar taxes, if any, levied or imposed by any city, state, county or
other governmental body having authority, such payments to be in addition to all
other payments required to be paid to Lessor by Lessee under the terms of this
Lease. Any such payment shall be paid concurrently with the payment of the base
rent, additional rent, or any other charge upon which the tax is based as set
forth above.
16.06 CAPTIONS. The captions appearing in this Lease are inserted only as a
matter of convenience and in no way define, limit, construe or describe the
scope or intent of any section.
16.07 NOTICE. All rent and other payments required to be made by Lessee
shall be payable to Lessor at the address set forth in section 1.05. All
payments required to be made by Lessor to Lessee shall be payable to Lessee at
the address set forth in this Section 16.07, or at any other address within the
United States as Lessee may specify from time to time by written notice. Any
notice or document required or permitted to be delivered by the terms of this
Lease shall be deemed to be delivered (whether or not actually received) when
deposited in the United States Mail, postage prepaid, certified mail, return
receipt requested, addressed to the parties at the respective addresses set
forth below:
Lessor: Lessee:
------- -------
Greenwood Plaza Partners, LLC New Era of Networks, Inc.
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000 0000 Xxxxx Xxxxxxxxx Xxxxx Xxxx., Xxxxx 000
Xxxxxx, Xxxxxxxx 00000 Xxxxxxxxx, Xxxxxxxx 00000
16.08 SUBMISSION OF LEASE. Submission of this Lease to Lessee for signature
does not constitute a reservation of space or an option to lease. This Lease is
not effective until execution by, and delivery to, both Lessor and Lessee.
16.09 CORPORATE AUTHORITY. If Lessee executes this Lease as a corporation,
each of the persons executing this Lease on behalf of Lessee does hereby
personally represent and warrant that Lessee is a duly authorized and existing
corporation, that Lessee is qualified to do business in the state in which the
Leased Premises are located, that Lessee, as a corporation, has full right and
authority to enter into this Lease, and that each person signing on behalf of
Lessee, as a corporation, is authorized to do so. At Lessor request, Lessee
shall provide a Letter of Authorization or Corporate Resolution to execute the
lease.
16.10 SEVERABILITY. If any provision of this Lease or the application
thereof to any person or circumstances shall be invalid or unenforceable to any
extent, then the remainder of this Lease and the application of such provisions
to other persons or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law.
16.11 LESSOR'S LIABILITY. If Lessor shall be in default under this Lease
and, if as a consequence of such default, Lessee shall recover a money judgment
against Lessor, such judgment shall be satisfied only out of the right, title
and interest of Lessor in the Building as the same may then be encumbered and
neither Lessor nor any person or entity comprising Lessor shall be liable for
any deficiency. In no event shall Lessee have the right to levy execution
against any property of Lessor nor any person or entity comprising Lessor, other
than Lessor's interest in the Building as herein expressly provided.
16.12 INDEMNITY. Except as disclosed in this Section 16.12, each party
hereto represents and warrants to the other that it has neither used or
consulted with any broker or similar person or entity in connection with this
Lease, and each party (the "Indemnitors") agrees to indemnify and hold harmless
the other party from and against any liability or claim, whether meritorious or
not, arising with respect to any broker or similar person from and against any
claims by such broker or entity for brokerage or similar commissions or fees
arising by reason of actions taken by the Indemnity. Lessor has engaged the
services of Mile High Properties, LLC ("Mile High") in connection with this
Lease and shall pay a commission to Mile High in accordance with the listing
agreement between Greenwood Plaza Partners, LLC and Mile High.
16.13 AMENDMENT. THIS LEASE MAY NOT BE ALTERED, WAIVED, AMENDED OR EXTENDED
EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY LESSOR AND LESSEE.
16.14 LIMITATION OF WARRANTIES. LESSOR AND LESSEE EXPRESSLY AGREE THAT
THERE ARE AND SHALL BE NO IMPLIED
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WARRANTIES OF MERCHANTABILITY, HABITABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
OF ANY OTHER KIND ARISING OUT OF THIS LEASE, AND THERE ARE NO WARRANTIES WHICH
EXTEND BEYOND THOSE EXPRESSLY SET FORTH IN THIS LEASE.
16.15 GOVERNING LAW. This Lease will be governed by the internal laws of
the State of Colorado.
16.16 PARKING. Lessor will provide Lessee with 45 unreserved surface
parking spaces on the Commencement Date of this Lease for the Lease term, and
720 unreserved parking spaces in the Parking Garage at the Completion Date for
the Second Floor of ONE Greenwood for the Lease term. Lessor shall provide and
Lessee shall pay a Monthly Parking Fee of $50.00 per month per space for 180
spaces in the Parking Garage, starting on October 8, 1999. An additional 90
unreserved parking spaces in the Parking Garage will be provided and added to
the Monthly Parking Fee on November 19, 1999 and the balance (450) of the
parking spaces the Parking Garage will be added to the Monthly Parking Fee on
May 1, 2000, The Monthly Parking Fee will increase at the same rate as the Base
Rent as defined in Section 1.04 and the Rent Schedule - Exhibit X. Xxxxxx will
provide 50 parking spaces offsite from the Commencement Date until October 7,
1999.
Years 1-5 $50.00 per month per space
Years 6-8 $57.50 per month per space
Years 9-10 $62.70 per month per space
16.17 ENTIRE AGREEMENT. IT IS EXPRESSLY AGREED BY LESSEE, AS A MATERIAL
CONSIDERATION FOR THE EXECUTION OF THIS LEASE, THAT THIS LEASE, WITH THE
SPECIFIC REFERENCES TO WRITTEN EXTRINSIC DOCUMENTS, IS THE ENTIRE AGREEMENT OF
THE PARTIES; THAT THERE ARE, AND WERE, NO VERBAL REPRESENTATIONS, WARRANTIES,
UNDERSTANDINGS, STIPULATIONS, AGREEMENTS OR PROMISES PERTAINING TO THIS LEASE OR
TO THE EXPRESSLY MENTIONED WRITTEN EXTRINSIC DOCUMENTS NOT INCORPORATED IN
WRITING IN THIS LEASE.
16.18 RENEWAL OPTION. Lessee is granted TWO (2) successive options to
extend the term of this Lease. Each option shall be for a term of five (5) years
(the Extension Terms), provided (a) there is no event of default at the time of
exercise of an option; and (b) Lessee gives written notice of its exercise of an
option at least one hundred eighty (180) days prior to the expiration of the
original lease term or first Extension Term. The Extension Term shall be upon
the same terms and conditions, except (i) Lessee shall have no further right of
renewal after the second Extension Term prescribed above; and (ii) the base rent
will be at the prevailing market rate.
16.19 INTENTIONALLY DELETED.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals as of
the day and year first above written.
LESSOR:
GREENWOOD PLAZA PARTNERS, LLC
By: /s/ [ILLEGIBLE]
---------------------------------------
Its:
---------------------------------------
LESSEE:
NEW ERA OF NETWORKS, INC.
By: /s/ XXXXXXX [ILLEGIBLE]
---------------------------------------
Its: Sr V.P. Counsel
---------------------------------------
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EXHIBIT A
THE LEASED PREMISES
ONE Greenwood Plaza
FIRST FLOOR, CONTAINING 21,819 RENTABLE SQUARE FEET.
SECOND FLOOR, CONTAINING 20,853 RENTABLE SQUARE FEET.
THIRD FLOOR, CONTAINING 21,771 RENTABLE SQUARE FEET.
TOTAL = 64,443
TWO GREENWOOD PLAZA
BASEMENT, CONTAINING 19,920 RENTABLE SQUARE FEET
FIRST FLOOR, CONTAINING 21,443 RENTABLE SQUARE FEET
SECOND FLOOR, CONTAINING 21,403 RENTABLE SQUARE FEET
THIRD FLOOR, CONTAINING 21,628 RENTABLE SQUARE FEET
FORTH FLOOR, CONTAINING 21,628 RENTABLE SQUARE FEET
FIFTH FLOOR, CONTAINING 21,628 RENTABLE SQUARE FEET
ATRIUM, CONTAINING 6,984 RENTABLE SQUARE FEET
TOTAL 134,634
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EXHIBIT - A-1
LEASED PREMISES FLOOR PLANS
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15
ONE GREENWOOD PLAZA
[FIRST FLOOR PLAN]
12
16
ONE GREENWOOD PLAZA
[SECOND FLOOR PLAN]
13
17
ONE GREENWOOD PLAZA
[THIRD FLOOR PLAN]
14
18
TWO GREENWOOD PLAZA
[LOWER LEVEL LEASING PLAN]
15
19
TWO GREENWOOD PLAZA
[FIRST LEVEL LEASING PLAN]
16
20
TWO GREENWOOD PLAZA
[SECOND LEVEL LEASING PLAN]
17
21
TWO GREENWOOD PLAZA
[THIRD - FIFTH LEVELS LEASING PLAN]
18
22
TWO GREENWOOD PLAZA
[ATRIUM LEVEL LEASING PLAN]
19
23
EXHIBIT "B"
RULES AND REGULATIONS
1. Lessor shall furnish Lessee four (4) keys to the Leased Premises without
charge. Additional keys shall be furnished at the Lessee expense, Lessee shall
not change locks on exterior doors or install additional locks on exterior doors
to the Leased Premises and the Building without the prior written consent of
Lessor and will provide Lessor with a Grand Master Key to the Leased Premises.
All keys to the Leased Premises and the Building shall be surrendered to Lessor
upon the Expiration Date or sooner termination of this Lease.
2. Intentionally Deleted.
3. Lessee shall not at any time occupy any part of the Leased Premises or
Building as sleeping or lodging quarters.
4. Lessee shall not place, install or operate on the Leased Premises or in
any part of the Building any engine, or machinery, or conduct mechanical
operations or xxxx thereon or therein, or place or use in or about the Leased
Premises or Building any explosives, gasoline, kerosene oil, acids, caustics, or
any flammable, explosive or hazardous material without written consent of
Lessor.
5. Lessor shall not be responsible for lost or stolen personal property,
equipment, money or jewelry from the Leased Premises or the Building regardless
of whether such loss occurs when the Leased Premises or the Building is locked
against entry or not.
6. No dogs (except working dogs), cats, fowl, or other animals shall be
brought into or kept in or about the Leased Premises or Building.
7. Intentionally Deleted.
8. None of the parking, plaza, recreation or lawn areas, entries, passages,
doors, elevators, hallways or stairways shall be blocked or obstructed or any
rubbish, litter, trash, or material of any nature placed, emptied or thrown into
these areas or such area used by Lessee's agents, employees or invitees at any
time for purposes inconsistent with their designation by Lessor.
9. The water closets and other water fixtures in the Building shall not be
used for any purpose other than those for which they were constructed, and any
damage resulting to them from misuse or by the defacing or injury of any part of
the Building shall be borne by the person who shall occasion it. No person
shall waste water by interfering with the faucets or otherwise.
10. Intentionally Deleted.
11. Nothing shall be thrown out of the windows of the Building or down the
stairways or other passages to the Building.
12. Intentionally Deleted.
13. Intentionally Deleted.
14. Intentionally Deleted.
15. Lessor shall not be liable for any damages from the stoppage of
elevators for necessary or desirable repairs or improvements or delays of any
sort or duration in connection with the elevator service.
16. Lessee shall not install floor covering within the Leased Premises
without the prior written approval of Lessor. The use of cement or other similar
adhesive materials not easily removed with water is expressly prohibited.
17. Lessee agrees to cooperate with and assist Lessor in the prevention of
canvassing, soliciting and peddling within the Building.
18. Intentionally Deleted.
19. It is Lessor's desire to maintain the Building with the highest
standard of dignity and good taste consistent with comfort and convenience for
Lessee.
20. Lessor reserves the right to make such other and further reasonable
rules and regulations as in Lessor's judgment may from time to time be necessary
for the safety, care and cleanliness of the Building, and for the preservation
of good order therein.
ONE / TWO Greenwood Plaza Net Rent
20
24
EXHIBIT "C"
LESSOR IMPROVEMENTS
Lessor will provide Lessee with a tenant finish allowance $23.00 per rentable
square foot for slab to slab tenant finish costs. This finish allowance will
include all costs associated with the Lessee's Work including, but not limited
to, space planning, construction drawings, construction costs (including all
fees and permits), architectural and engineering fees and reasonable
construction management fees. In the event the cost of the remodel exceeds this
allowance, any additional amounts will be paid by Lessee.
ONE / TWO Greenwood Plaza Net Rent
21
25
EXHIBIT "D"
ACCEPTANCE OF LEASED PREMISES/TENANT ESTOPPEL CERTIFICATE
This acceptance of Leased Premises/Tenant Estoppel Certificate (this
"Agreement") is entered into as of this _____________ day of ________________,
_______, by and between _____________________ ("Lessor") and
____________________ ("Lessee") and forms an integral and inseparable part of
the Standard Commercial Lease dated __________________, 19__ by and between the
parties (the "Lease"). Notwithstanding anything to the contrary contained within
the Lease, the parties hereto confirm and agree as follows:
1. Lessor delivered and Lessee accepted possession of the ______ floor(s)
of ONE / TWO Greenwood Plaza on ____________________, ____.
2. The Commencement Date and the Completion Date for the first floor of XXX
Xxxxxxxxx Xxxxx are/have been hereby established as _____________________, 19__,
and the Expiration Date is hereby established as __________________, _____.
3. The Completion Date for the portion of the Leased Premises described in
Section 1 above is hereby established as _____________________, ____________.
4. The improvements to the portion of the Leased Premises described in
Section 1 above to be constructed by Lessor have been satisfactorily completed
and accepted by Lessee.
5. Lessee hereby acknowledges that it has received ____________ (_____)
keys for the Leased Premises and the Building from Lessor as of
________________, 19_____.
LESSOR:
GREENWOOD PLAZA PARTNERS, LLC
By:
----------------------------
Its:
----------------------------
LESSEE:
NEW ERA OF NETWORKS, INC.
By:
----------------------------
Its:
----------------------------
ONE / TWO Greenwood Plaza Net Rent
22
26
EXHIBIT "E"
RENT SCHEDULE
ONE / TWO Greenwood Plaza Net Rent
23
00
XXXXXXXXX XXXXX PARTNERS, LLC.
000 XXXXX XXXXXX XXXXXX, XXXXX 000
XXXXXX, XXXXXXXX 00000
NEON RENT SCHEDULE
ONE & TWO GREENWOOD PLAZA
6550 & 0000 XXXXX XXXXXXXXX XXXXX XXXX.
XXXXXXXXX, XXXXXXXX 00000
BASE NET PARKING RATE NUMBER OF TOTAL
TERM FLOORS RENTABLE AREA RENT (RSF) MONTHLY RENT PER SPACE SPACES PARKING RENT MONTHLY RENT
---- ------- ------------- ---------- ------------ ------------ --------- ------------ ------------
8/13/99 to 8/31/99 1 21,819 $18.50 $ 33,637.63 $50.00 0 $0.00 $ 20,616.61
9/1/99 to 9/30/99 1 21,819 $18.50 $ 33,637.63 $50.00 0 $0.00 $ 33,637.63
10/1/99 to 10/31/99 1 21,819 $18.50 $ 33,637.63 $50.00 0 $0.00 $ 33,637.63
10/8/99 to 10/31/99 2 20,853 $18.50 $ 32,148.38 $50.00 180 $9,000.00 $ 31,856.81
Sub-Total 10/31/99 $ 65,494.43
11/1/99 to 11/30/99 1&2 42,672 $18.50 $ 65,786.00 $50.00 180 $9,000.00 $ 74,786.00
11/19/99 to 11/30/99 3 21,771 $18.50 $ 33,563.63 $50.00 90 $4,500.00 $ 15,225.45
Sub-Total 11/30/99 $ 90,011.45
12/1/99 to 12/31/99 1&2&3 64,443 $18.50 $ 99,349.63 $50.00 270 $13,500.00 $112,849.63
1/1/00 to 4/30/00 1&2&3 64,443 $18.50 $ 99,349.63 $50.00 270 $13,500.00 $112,849.63
5/1/00 to 4/30/05 1-3&1-5 199,077 $18.50 $306,910.38 $50.00 720 $36,000.00 $342,910.38
5/1/05 to 4/30/08 1-3&1-5 199,077 $21.75 $360,827.06 $57.50 720 $41,400.00 $402,227.06
5/1/08 to 4/30/10 1-3&1-5 199,077 $23.80 $394,836.05 $62.70 720 $45,144.00 $439,980.05
GENERAL NOTES
1. Property Taxes will be escrowed on a monthly basis in the form of
Additional Rent. Attached to this Rental Schedule is the Estimated Property
Taxes for 0000 - XXX Xxxxxxxxx Xxxxx.
NEON RENT SCHEDULE THE XXXXX PARTNERSHIP RUN DATE 7/15/99
24
28
THE XXXXX PARTNERSHIP, INC.
000 XXXXXXXXX XXXXXX XXXXX 000
XXXXXX, XXXXXXXX 00000
GREENWOOD PLAZA PARTNERS, LLC
ESTIMATED PROPERTY TAXES - ONE GREENWOOD PLAZA - 1999
MONTH OPP NEON TOTAL
--------- ---------- ---------- ----------
01-Jan-99 $ 7,158.33 $ 0.00 $ 7,158.33
01-Feb-99 $ 7,158.33 $ 0.00 $ 7,158.33
01-Mar-99 $ 7,158.33 $ 0.00 $ 7,158.33
01-Apr-99 $ 7,158.33 $ 0.00 $ 7,158.33
01-May-99 $ 7,158.33 $ 0.00 $ 7,158.33
01-Jun-99 $ 7.158.33 $ 0.00 $ 7,158.33
01-Jul-99 $ 7,158.33 $ 0.00 $ 7,158.33
01-Aug-99 $ 5,700.52 $ 1,457.81 $ 7,158.33
01-Sep-99 $ 4,772.02 $ 2,386.31 $ 7,158.33
01-Oct-99 $ 2,911.78 $ 4,246.55 $ 7,158.33
01-Nov-99 $ 1,417.34 $ 5,740.99 $ 7,158.33
01-Dec-99 $ 0.00 $ 7,158.33 $ 7,158.33
---------- ---------- ----------
Total $64.909.97 $20,989.99 $85,899.96
========== ========== ==========
PROPERTY TAX - 1999 RUN DATE 7/15/99
25
