OFFICE LEASE UNITED WESTERN FINANCIAL CENTER 700 17TH STREET DENVER, COLORADO 700 17TH STREET OPERATING LLC, a Delaware limited liability company as LANDLORD and UNITED WESTERN BANK, a federally chartered savings bank as TENANT
Exhibit
10.3
UNITED
WESTERN FINANCIAL CENTER
000
00XX XXXXXX
XXXXXX,
XXXXXXXX
000
00XX
XXXXXX OPERATING LLC,
a
Delaware limited liability company
as
LANDLORD
and
UNITED
WESTERN BANK,
a
federally chartered savings bank
as
TENANT
____________
TABLE
OF CONTENTS
| Page | ||
|
|
LEASED
PREMISES.
|
1
|
|
2.
|
TERM.
|
1
|
|
3.
|
RENT.
|
2
|
|
4.
|
INTENTIONALLY
OMITTED.
|
3
|
|
5.
|
USE.
|
3
|
|
6.
|
OPERATING
EXPENSES.
|
3
|
|
7.
|
UTILITIES
AND SERVICES.
|
6
|
|
8.
|
MAINTENANCE
AND REPAIRS.
|
7
|
|
9.
|
ALTERATIONS
AND ADDITIONS.
|
7
|
|
10.
|
INSURANCE.
|
8
|
|
11.
|
INDEMNITY.
|
9
|
|
12.
|
DAMAGE,
DESTRUCTION AND BUSINESS INTERRUPTION.
|
9
|
|
13.
|
TENANT
TAXES.
|
10
|
|
14.
|
COMMON
AREAS.
|
11
|
|
15.
|
ASSIGNMENT
AND SUBLETTING.
|
11
|
|
16.
|
TENANT'S
DEFAULT.
|
12
|
|
17.
|
LANDLORD'S
DEFAULT.
|
14
|
|
18.
|
CONDEMNATION.
|
14
|
|
19.
|
SUBORDINATION.
|
15
|
|
20.
|
QUIET
ENJOYMENT.
|
15
|
|
21.
|
DELAYS.
|
15
|
|
22.
|
GENERAL
PROVISIONS.
|
15
|
|
EXHIBIT
A-
|
LEGAL
DESCRIPTION
|
|
EXHIBIT
B-
|
FLOOR
PLAN
|
|
EXHIBIT
C-
|
RULES
AND REGULATIONS
|
|
EXHIBIT
D-
|
DELETED
|
|
EXHIBIT
F-
|
ANNUAL
ASBESTOS NOTICE
|
|
EXHIBIT
G-
|
ASBESTOS
NOTIFICATION AND DISTURBANCE AGREEMENT
|
|
EXTENSION
OPTION RIDER
|
|
(i)
THIS
LEASE made and entered as of the 1st day of October, 2006 by and between
000
00XX
XXXXXX
OPERATING LLC, a Colorado limited liability company doing business in Colorado
as 000 00xx
Xxxxxx
Xxxxxxxx Operating Company (hereinafter referred to as "Landlord"), and UNITED
WESTERN BANK, a federally chartered savings bank (hereinafter referred to
as
"Tenant").
For
and
in consideration of the rental and of the covenants and agreements hereinafter
set forth to be kept and performed by Tenant, Landlord hereby leases to Tenant
and Tenant hereby leases from Landlord the leased premises herein described
for
the Lease Term, at the rental and subject to and upon all of the terms,
covenants and agreements hereinafter set forth.
1. LEASED
PREMISES.
1.1. Grant
of Leased Premises.
Landlord
hereby leases to Tenant and Tenant leases from Landlord those certain premises
set forth in Section 6.1 of the Summary (hereinafter referred to as the
"Leased Premises"), which Leased Premises are located in the multi-story
commercial office building described in Section 6.2 of the Summary
(hereinafter referred to as the "Building"). The Building, any outside plaza
areas, land and other improvements surrounding the Building, the Common Areas,
as defined below, and the land upon which any of the foregoing are situated
are
sometimes collectively referred to herein as the "Real Property." The legal
description of land comprising the Real Property is set forth in the attached
Exhibit A.
A floor plan showing the size and location of the Leased Premises within
the
Building is set forth in the attached Exhibit B.
Tenant's use and occupancy of the Leased Premises shall include the use,
in
common with others, of the Common Areas as hereinafter described, but excepting
therefrom and reserving unto Landlord the exterior faces of all exterior
walls
of the Building, the roof and the right to install, use and maintain where
necessary in the Leased Premises all pipes, ductwork, conduits and utility
lines
through hung ceiling space, partitions, beneath the floor or through other
parts
of the Leased Premises; provided such installation, use and maintenance do
not
unreasonably interfere with the use and occupancy of the Leased Premises
by
Tenant or diminish Tenant's access to the Leased Premises.
1.2. Rentable
Area.
Landlord and Tenant hereby confirm and stipulate that the number of square
feet
of "Rentable Area" contained in the Leased Premises initially leased by Tenant
pursuant to this Lease (i) is as set forth in Section 6.1 of the
Summary, (ii) has been calculated in accordance with Landlord's standard
rentable area measurement standards used for the Building, and (iii) is not
subject to remeasurement, adjustment or modification, and accordingly, there
shall be no modification or adjustment of the Base Rent, Tenant's Share of
Operating Expenses, the Tenant Improvement Allowance (if any) or any other
dollar amounts set forth in this Lease which are based upon any such square
footage amount.
1.3. Construction
by Landlord.
Tenant
shall occupy the Leased Premises in its current "AS IS" condition without
any
obligation on Landlord's part to contract or pay for any tenant improvements
or
refurbishment work in the Leased Premises, and Tenant shall be solely
responsible, at its sole cost and expense, for constructing any and all
alterations and refurbishment work for the Leased Premises pursuant to and
in
accordance with the provisions of Article 9 below.
2. TERM.
2.1. Basic
Term.
The
term of this Lease ("Lease Term") shall be as set forth in Section 7.1 of
the Summary and shall commence on the date ("Commencement Date") set forth
in
Section 7.2 of the Summary, and shall terminate on the date (the
"Expiration Date") set forth in Section 7.3 of the Summary, unless this
Lease is sooner terminated as hereinafter provided, or extended in accordance
with the Extension Option Rider attached as Exhibit H.
2.2 Termination
Option.
Tenant
shall have the option to terminate this Lease or any contiguous space in
the
Lease (such contiguous space shall include a Suite or a contiguous floor
plan of
the Lease, such as the Bank lobby and the mezzanine space collectively) at
any
time after the 24th month of the initial Lease Term (the “Termination Option”)
by paying a Termination Fee determined by the following formula:
The
net
present value of all future rentals contracted to be paid over the unexpired
term of the Lease Agreement discounted at an interest rate per annum equal
to
the Treasury Constant Maturity Yield Index published during the second full
week
preceding the Termination Date for instruments having a maturity coterminous
with the remaining term of the Lease. "Treasury
Constant Maturity Yield Index"
shall mean the average yield for "This Week" as reported by the Federal Reserve
Board in Federal Reserve Statistical Release H.15 (519). If there is
no Treasury Constant Maturity Yield Index for instruments having a maturity
coterminous with the remaining term of this Note, then the index shall be
equal
to the weighted average yield to maturity of the Treasury Constant Maturity
Yield Indices with maturities next longer and shorter than such remaining
average life to maturity, calculated by averaging (rounded upward to the
nearest
1/8 of 1% per annum) the yields of the relevant Treasury Constant Maturity
Yield
Indices (rounded upward to the nearest 1/8 of 1% per annum). In the event
that there is no Treasury Constant Maturity Index available, Landlord and
Tenant
shall mutually agree upon a reasonable alternate index.
Tenant
is
required to provide six months’ advance written notice to Landlord of any
Termination Option. The Termination Fee shall be payable on or before the
stated
effective date of the termination of the Leased Premises. In the event that
Tenant exercises its Termination Option with respect to only a portion of
the
Lease Premises as allowed herein, then the Landlord and Tenant agree to execute
an amendment to this Lease confirming the effect of the space reduction.
3. RENT.
3.1. Base
Rent.
Tenant
agrees to pay Landlord, promptly when due, without notice or demand and without
deduction or set-off of any amount for any reason whatsoever, as "Base Rent"
for
the Leased Premises, the annual amounts set forth in Section 8 of the
Summary, which shall be payable in the monthly installment amounts set forth
in
Section 8 of the Summary. Said monthly installments of Base Rent shall be
payable in advance on the first (1st)
day of each calendar month during the Lease Term, except that the Base Rent
for
the first (1st) full calendar month of the Lease Term shall be paid at the
time
of Tenant's execution of this Lease.
3.2. Adjustment
of Rent on Commencement or Expiration.
In
the event the Lease Term commences or expires on a day other than the first
(1st)
day of a calendar month, Tenant shall pay to Landlord on the first
(1st)
day of the Lease Term, or on the first (1st)
day of the month in which the Lease Term expires, a sum determined by
multiplying one-thirtieth (1/30th) of the monthly installment of Base Rent
by
the number of days in the first (1st)
or last calendar month of the Lease Term.
3.3. Operating
Expenses.
In
addition to paying the Base Rent specified in Section 3.1 above, Tenant
agrees to pay Landlord as additional rent "Tenant's Share" of "Operating
Expenses", as those terms are defined in Sections 6.1 and 6.2 below, which
are in excess of the Operating Expenses for the "Base Year", as such term
is
defined in Section 6.2 below.
3.4. Place
of Payment.
Base
Rent, Tenant's Share of Operating Expenses and all other sums or charges
required by this Lease to be paid by Tenant to Landlord, all of which are
herein
sometimes collectively referred to as "Rent," shall be paid at the office
of
Landlord as set forth herein, or at such other place as Landlord may from
time
to time designate, in lawful money of the United States.
3.5. Right
of First Refusal. During
the Lease Term, Tenant may at any time propose to lease any or all space
within
the Building which is available for lease, and Landlord shall negotiate with
Tenant in good faith to agree upon terms within twenty (20) days after Landlord
or its agent receives such a written lease proposal from Tenant. Landlord
shall
notify Tenant of the availability of any space in the Building upon the
termination of a lease in the Building or upon notice by any tenant of their
election not to exercise (i) any right of first refusal or (ii) option rights
with respect to their lease. Tenant acknowledges that any space which is
subject
to any expansion, first refusal and similar rights currently set forth in
any
lease for space in the Building which has been executed as of the date of
execution of this Lease (collectively, the "Superior Rights") shall not be
considered "available
for lease"
for
purposes of this section 3.5. In addition, if Landlord receives a bona fide
offer from an independent third party to lease any specific space in the
Building which is available for lease, Tenant shall have a right of refusal
as
set forth below regarding such space (the "First
Refusal Space").
3.5.1. Term
of First Refusal.
Landlord shall give Tenant written notice (the "First Refusal Notice") of
the
location of the First Refusal Space and a summary of the terms of the third
party lease proposal, including without limitation (i) the projected
commencement date thereof, (ii) a schedule of construction of tenant
improvements for the First Refusal Space, if any, (iii) the Base Rent payable
for the First Refusal Space, (iv) any tenant improvement allowance for the
First
Refusal Space and (v) the term of the lease for the First Refusal
Space
3.5.2. Procedure
for Acceptance.
On or
before the date which is ten (10) days after Tenant's receipt of Landlord's
First Refusal Notice (the "Election Date"), Tenant shall deliver written
notice
to Landlord ("Tenant's Election Notice") pursuant to which Tenant shall have
the
right to elect either to: (i) lease the First Refusal Space described in
the
First Refusal Notice upon the terms set forth in the First Refusal Notice;
or
(ii) decline to lease such First Refusal Space identified in the First Refusal
Notice. If Tenant does not respond in writing to Landlord's First Refusal
Notice
by the Election Date, Tenant shall be deemed to have elected not to lease
the
First Refusal Space.
3.5.3
Execution
of Lease.
If
Tenant leases any portion of the First Refusal Space, Tenant’s Election Notice
shall specifically state that in consideration of Landlord’s agreement to cease
offering such space to third parties.
Tenant
agrees to execute a new lease in substantially the form of this Lease
incorporating the terms of Landlord’s First Refusal Notice within thirty (30)
days after the date of Tenant’s Election Notice. In
the event Tenant
does not sign a new lease within the time permitted, and such delay is not
caused by Landlord, Tenant immediately shall pay to Landlord as liquidated
damages an amount equal to six months rent for the First Refusal Space at
the
rate stated in the First Refusal Notice, the Right of First Refusal for the
applicable First Refusal Space shall terminate and Landlord may proceed to
market and lease such space to any third party free of any rights of Tenant.
However, if Landlord and Tenant (or an affiliate) within six months thereafter
voluntarily enter into a lease of such space, the unamortized portion of
such
termination fee (based on the number of days remaining in such six-month
period
on the date such lease is executed) shall be credited against the rent payable
under such lease.
2
4. INTENTIONALLY
OMITTED.
5. USE.
5.1. Permitted
Use.
Tenant
shall use the Leased Premises solely for general office use and uses incidental
thereto, consistent with the character of the Building as a first-class office
building, and shall not permit the Leased Premises to be used for any other
purpose.
5.2. Compliance
with Laws.
Tenant
shall, at its sole cost and expense, promptly comply with all applicable
laws,
statutes, ordinances, rules, regulations, orders and requirements, and all
recorded covenants, conditions and restrictions in effect during the Lease
Term
or any part of the Lease Term hereof, regulating Tenant's particular use
or
occupancy of the Leased Premises or imposing any duty on Landlord or Tenant
with
regard thereto or with regard to alteration thereof, including the requirements
of federal, state, county and municipal authorities now in force or which
may
hereinafter be in force. Notwithstanding the foregoing, or any provision
of this
Lease to the contrary, Landlord shall be responsible for compliance with
all
laws, statutes, ordinances, rules, regulations, orders, and requirements
of
general application to the Building. Tenant shall not use or permit the use
of
the Leased Premises in any manner which may tend to create waste or a nuisance;
nor which may obstruct or interfere with the rights of other tenants of the
Building or injure them.
5.3. Insurance
Cancellation.
Tenant
shall not do or permit anything to be done on or about the Leased Premises,
other than the Permitted Uses, which may in any way increase the existing
rate
of any insurance policy covering the Building or Real Property or any of
its
contents or cause cancellation of any such insurance policy.
5.4. Landlord's
Rules and Regulations.
Tenant
shall observe and comply with the Building Rules and Regulations which are
in
effect on the date hereof, as set forth in the attached Exhibit C,
and upon thirty (30) days prior written notice to Tenant, such reasonable
amendments and additions thereto as Landlord may from time to time promulgate
and enforce on a non-discriminatory basis. Landlord shall not be responsible
to
Tenant for the non-performance of said rules and regulations by any other
tenants of the Building but shall enforce the rules and regulations only
in a
uniform and non-discriminatory manner.
5.5. Hazardous
Materials.
Tenant shall not use or allow another person or entity to use any part of
the
Leased Premises for the storage, use, treatment, manufacture or sale of
"Hazardous Material," as that term is defined herein. As used herein, the
term
"Hazardous Material" means any hazardous or toxic substance, material or
waste
which is or becomes regulated by any local governmental authority, the state
in
which the Building is located or the United States Government, including,
without limitation, any material or substance which is (i) defined or listed
as
a "hazardous waste," "extremely hazardous waste," "restricted hazardous waste,"
"hazardous substance" or "hazardous material" under any applicable federal,
state or local law or administrative code promulgated thereunder, (ii)
petroleum, or (iii) asbestos. Hazardous Material shall not include copier
toner
or normal cleaning supplies. Tenant shall notify Landlord immediately after
Tenant becomes aware of the release of any Hazardous Material in, on or about
the Real Property. In addition, Tenant agrees to indemnify, defend, protect
and
hold Landlord harmless from and against any and all claims, actions,
administrative proceedings, judgments, damages, punitive damages, penalties,
fines, costs, liabilities, interest or losses, including reasonable attorneys'
fees and expenses, consultant fees, and expert fees, together with all other
costs and expenses of any kind or nature, that arise during or after the
Lease
Term directly or indirectly from or in connection with the presence, suspected
presence, release or suspected release of any Hazardous Materials in or into
the
air, soil, surface water or groundwater at, on, about, under or within the
Premises or Real Property or any portion thereof, caused by Tenant, its
assignees or subtenants and/or their respective agents, employees, contractors,
licensees or invitees.
In
addition, Landlord agrees to indemnify, defend, protect and hold Tenant harmless
from and against any and all claims, actions, administrative proceedings,
judgments, damages, punitive damages, penalties, fines, costs, liabilities,
interest or losses, including reasonable attorneys' fees and expenses,
consultant fees, and expert fees, together with all other costs and expenses
of
any kind or nature, that arise during or after the Lease Term directly or
indirectly from or in connection with the presence, suspected presence, release
or suspected release of any Hazardous Materials in or into the air, soil,
surface water or groundwater at, on, about, under or within the Premises
or Real
Property or any portion thereof, caused by Landlord or its agents, employees
or
contractors.
6. OPERATING
EXPENSES.
6.1. Tenant's
Obligations.
In
addition to the Base Rent provided hereinabove, Tenant shall pay to Landlord
Tenant's Share of Operating Expenses, which are in excess of Tenant's Share
of
the Operating Expenses for the Base Year, incurred by Landlord on account
of
operation and maintenance of the Building and Real Property during the Lease
Term. For purposes hereof, "Tenant's Share" shall mean the percentage set
forth
in Section 10 of the Summary which was calculated by dividing the Rentable
Area of the Leased Premises set forth in Section 6.1 of the Summary, by the
total Rentable Area within the Building set forth in Section 10 of the
Summary.
6.2. Definitions.
6.2.1. "Base
Year"
shall mean the calendar year set forth in Section 11 of the
Summary.
6.2.2. "Expense
Year"
shall mean each calendar year during the Lease Term (or partial calendar
year if
the Lease Term commences or ends on other than the first or last day of a
calendar year).
3
6.2.3. "Operating
Expenses,"
for purposes hereof, are intended to be inclusive of all costs of operating
and
maintaining the Building and the Real Property, except franchise, estate,
inheritance, net income, gift, corporate and excess profit taxes of Landlord,
interest on and capital retirement of Landlord's mortgage loans, and costs
charged by Landlord directly to specific tenants (including any utilities
separately metered and charged to specific tenants). Landlord agrees to make
reasonable efforts to minimize operating costs insofar as such efforts are
not
inconsistent with Landlord's intent to operate and maintain the Building
in the
first-class manner. Operating Expenses may include, but shall not be limited
to
the following:
6.2.3.1. "Tax
Expenses,"
which for purposes hereof shall mean, collectively, 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 and Real Property,
any leasehold improvements, fixtures, installations, additions, and equipment,
whether owned by Landlord or Tenant (but only to the extent not separately
paid
by Tenant), or either because of or in connection with Landlord's ownership,
transfer, leasing and operation of the Building and Real Property, including,
without limitation, real estate taxes, personal property taxes, sewer rents,
water rents, general or special assessments, duties or levies charged or
levied
upon or assessed against the Building and Real Property and related 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 and Real Property, 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 or Real Property (except Landlord's
net
income taxes), whether any such taxes are imposed by the United States, the
State of Colorado, the County of Denver, or any local governmental municipality,
authority, or agency or any political subdivision of any thereof.
6.2.3.2. All
costs and expenses to Landlord in maintaining fire and extended coverage
insurance, property damage, liability and rent loss insurance and any other
insurance maintained by Landlord covering the use and operation of the Building,
Common Areas, and Real Property which is customary in comparable buildings
in
the area or which is reasonably deemed prudent by Landlord.
6.2.3.3. All
costs and expenses of repairing, operating and maintaining the heating,
ventilating and air conditioning system for the Building, including the cost
of
all utilities required in the operation thereof, except those paid directly
by
tenants of the Building and including the cost of replacements of equipment
(amortized over the useful life thereof) used in connection with such repair
and
maintenance work and all costs and expenses incurred in making alterations
or
additions to the heating, ventilating and air conditioning system in order
to
comply with governmental rules, regulations and statutes.
6.2.3.4. The
costs of capital improvements and structural repairs and replacements made
in or
to the Building in order to conform to changes subsequent to the Commencement
Date in any applicable laws, ordinances, rules, regulations or orders of
any
governmental or quasi-governmental authority having jurisdiction over the
Building (herein "Required Capital Improvements") and the costs of any capital
improvements and structural repairs and replacements designed primarily to
reduce Operating Expenses or to reduce the rate of increase in Operating
Expenses (herein "Cost Savings Improvements"). 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 improvement
or structural repair or replacement (as reasonably determined by Landlord)
together with interest on the balance of the unreimbursed expenditure at
a rate
equal to the floating commercial loan rate announced from time to time by
US
Bank, a national banking association, or its successor, as its prime rate,
plus
2% per annum (the "Interest Rate") which is in effect on the date the
expenditure was incurred by Landlord.
6.2.3.5. All
costs and expenses incurred by Landlord in providing standard services and
utilities to tenants of the Building, including office janitorial services,
window washing and utilities not separately metered and not charged by Landlord
directly to specific tenants; together with the cost of replacement of building
standard electric light bulbs and fluorescent tubes and ballasts, which Landlord
shall have the exclusive right to provide and install.
6.2.3.6. All
costs and expenses incurred by Landlord in operating, managing, repairing
and
maintaining the Building and Real Property, including all sums expended in
connection with the Common Areas for general maintenance and repairs,
resurfacing, painting, restriping, cleaning, sweeping and janitorial services,
window washing, maintenance and repair of elevators, stairways, sidewalks,
curbs
and Building signs, sprinkler systems, planting and landscaping, lighting
and
other utilities, maintenance and repair of any fire protection systems,
automatic sprinkler systems, lighting systems, emergency back-up utility
systems, storm drainage systems and any other utility systems, personnel
to
implement such services and to police the Common Areas, rental and/or
depreciation of machinery and equipment used in such maintenance and services,
police and fire protection services, trash removal services, all costs and
expenses pertaining to snow and ice removal, security systems, utilities,
premiums and other costs for workers' compensation insurance, wages, withholding
taxes, social security taxes, personal property taxes, fees for required
licenses and permits, supplies, and charges for management of the Building
and
Common Areas. Costs and expenses incurred by Landlord in operating, managing,
repairing and maintaining the Building and Real Property which are incurred
exclusively for the benefit of specific tenants of the Building will be billed
accordingly and will not be included within the general Operating
Expenses.
6.2.3.7. In
the Base Year, if the Building is not ninety-five percent (95%) occupied
during
all or a portion of any said year, Landlord shall make an appropriate adjustment
to the variable components of Operating Expenses for such year or applicable
portion thereof, employing sound accounting and management principles, to
determine the amount of Operating Expenses that would have been paid had
the
Building been ninety-five percent (95%) occupied; and the amount so determined
shall be deemed to have been the amount of Operating Expenses for such year,
or
applicable portion thereof. Landlord shall have the right, from time to time,
acting in a commercially reasonable manner to equitably allocate some or
all of
the Operating Expenses among different tenants of the Building, including,
but
not limited to, between the office and retail space tenants of the
Building.
4
6.2.3.8. Notwithstanding
any provision to this Lease to the contrary, Operating Expenses shall expressly
exclude (i) management fees in excess of the then current market rates; (ii)
costs for acquiring sculptures, paintings, or other objects of art; (iii)
wages,
salaries, and compensation of employees who work at the Building above the
level
of Building Manager; (iv) mortgage principal or interest; (v) capital
improvements for which are required to be made to the Premises by Tenant
or to
any other premises located in the Building by the tenant thereof pursuant
to the
provisions of its lease; (vi) depreciation on the Building or any portion
thereof; (vii) cost of improvements made by or for tenants of the Building;
(viii) finders fees and real estate broker commissions; (ix) capital items
other
than those referred to in Section 6.2 above; (x) costs arising out of Landlord’s
provision of services and utilities to Tenant or other tenants of the building
outside regular business hours or in amounts exceeding those required for
general office purpose for which Landlord receives direct reimbursement from
Tenant or such other tenants; (xi) legal, consulting or accounting fees or
expenses attributable to leasing space within the Building, the collection
or
enforcement of leases of space within the Building, sale or financing of
the
Building or any part thereof, or for any other purposes except as reasonably
necessary in connection with the day-to-day operation of the Building (exclusive
of fees incurred in connection with leasing and enforcing leases of space
in the
Building); (xii) any costs for goods and/or services representing an amount
paid
to any person, firm, corporation or other entity related to Landlord (or
any
partner thereof) which is in excess of the reasonable fair market value of
such
goods and/or services, if said goods and/or services had been rendered by
an
unrelated third party; (xiii) the cost of installing, operating, and maintaining
any specialty services operated by Landlord, such as an athletic club or
luncheon club; (xiv) any items for which Landlord is reimbursed by or from
any
insurance, warranty claims, or other sources, or is otherwise compensate
by any
third party including any other tenants of the Building (Landlord will use
reasonable efforts to collect such compensation or reimbursement, and any
Operating Expenses paid by Tenant in the calendar year in which the event
giving
rise to such compensation or reimbursement occurred will be readjusted in
the
event that any such compensation or reimbursement is received by Landlord
after
the end of such calendar year); (xv) any and all costs arising from the presence
of Hazardous Materials in, on or about the Building, including, without
limitation, Hazardous Materials in the ground water or soil, not placed in
the
Leased Premises or Building by Tenant or any of Tenant’s agents or employees;
(xvi) Landlord’s general corporate overhead and general administrative expenses
and costs associated with the operation of the business of the entity which
constitutes the Landlord as distinguished from the costs of operation of
the
Building; (xvii) overtime expense, late fees, penalties, interest, or other
expenses incurred by Landlord in curing any default hereunder or otherwise
arising from any failure by Landlord to perform any obligation to be performed
by or at the expense of Landlord under this Lease or otherwise; any fines,
penalties, late payment charges, interest and any other costs due to the
violation of Landlord or any tenant of the terms and conditions of any lease
of
space in the Building; and any costs necessitated by or resulting from the
gross
negligence or willful misconduct of Landlord; and (xviii) ground lease rents
or
any other financing expenditure.
6.3. Calculation
and Payment of Operating Expenses.
6.3.1. Calculation
of Excess and Underage.
If
for any Expense Year ending or commencing within the Lease Term, Tenant's
Share
of Operating Expenses for such Expense Year exceeds Tenant's Share of Operating
Expenses for the Base Year, then Tenant shall pay to Landlord, in the manner
set
forth in Section 6.3.2, below, as additional rent, an amount equal to the
excess (the "Excess").
6.3.2. Statement
of Actual Operating Expenses and Payment by Tenant.
Landlord
shall endeavor to give to Tenant on or before the first (1st)
day of April following the end of each Expense Year, a statement (the
"Statement") which shall state the Operating Expenses incurred or accrued
for
such preceding Expense Year, and which shall indicate the amount, if any,
of any
Excess. Upon receipt of the Statement for each Expense Year ending during
the
Lease Term, if an Excess is present, Tenant shall pay, within twenty (20)
days
after receipt of said Statement, the full amount of the Excess for such Expense
Year, less the amounts, if any, paid during such Expense Year as Estimated
Excess (as defined in Section 6.3.3 below). If any Statement reflects that
Tenant has overpaid Tenant's Share of Operating Expenses for such Expense
Year,
Landlord shall remit to Tenant with such applicable Statement the amount
of the
overpayment. The failure of Landlord to timely furnish the Statement for
any
Expense Year shall not prejudice Landlord from enforcing its rights under
this
Article 6. Even though the Lease Term has expired and Tenant has vacated
the Leased Premises, when the final determination is made of Tenant's Share
of
the Operating Expenses for the Expense Year in which this Lease terminates,
if
an Excess is present, Tenant shall immediately pay to Landlord an amount
as
calculated pursuant to the provisions of Section 6.3.1 of this Lease. The
provisions of this Section 6.3.2 shall survive the expiration or earlier
termination of the Lease Term.
6.3.3. Statement
of Estimated Operating Expenses.
In
addition, Landlord shall endeavor to give Tenant prior to the start of each
Expense Year a yearly expense estimate statement (the "Estimate Statement")
which shall set forth Landlord's reasonable estimate (the "Estimate") of
what
the total amount of Operating Expenses for such Expense Year shall be and
the
estimated Excess (the "Estimated Excess") as calculated by comparing Tenant's
Share of Operating Expenses, which shall be based upon the Estimate, to Tenant's
Share of Operating Expenses for the Base Year. The failure of Landlord to
timely
furnish the Estimate Statement for any Expense Year shall not preclude Landlord
from enforcing its rights to collect any Estimated Excess under this
Article 6. If pursuant to the Estimate Statement an Estimated Excess is
calculated for the then-current Expense Year, Tenant shall pay, with its
next
installment of Base Rent due, a fraction of the Estimated Excess for the
then-current Expense Year (reduced by any amounts paid pursuant to the last
sentence of this Section 6.3.3). Such fraction shall have as its numerator
the number of months which have elapsed in such current Expense Year to the
month of such payment, both months inclusive, and shall have twelve (12)
as its
denominator. Until a new Estimate Statement is furnished, Tenant shall pay
monthly, with the monthly Base Rent installments, an amount equal to one-twelfth
(1/12) of the total Estimated Excess set forth in the previous Estimate
Statement delivered by Landlord.
5
6.3.4. Audit
of Operating Expenses. Tenant will have a period of 90 days after Tenant’s
receipt of a Statement (the “Review Period”) to review or cause to be reviewed
Landlord’s records of Operating Expenses at Tenant’s sole cost and expense and
upon reasonable prior notice at the place (in the City and County of Denver,
Colorado) Landlord normally maintains such records during Landlord’s normal
business hours. If Tenant does not, based on such review, object to such
Statement before the expiration of the applicable Review Period, then Tenant
will be deemed to have waived any such right to object to or challenge such
Statement. If timely objection is made by Tenant under this Section 6.3.4.,
Landlord and Tenant shall use reasonable good faith efforts to resolve any
such
objection within forty-five (45) calendar days after the date on which the
notice of objection was given by Tenant. If Landlord and Tenant are unable
to
resolve such objection within such 45-day period, Landlord and Tenant shall
select a mutually acceptable independent certified property manager who has
experience in these matters (the “Property Manager”) to resolve such dispute. If
Landlord and Tenant fail to agree on a Property Manager, each party shall
identify its own independent certified property manager and those two property
managers shall identify the Property Manager. The Property Manager shall
make
his determination in a manner consistent with this Lease and after taking
into
account the quality and manner of the operation of the Building. The Property
Manager shall make his decision as to each item in dispute and give written
notice of his decision to Landlord and Tenant within thirty (30) calendar
days
after his appointment. The determination made as to any items in accordance
with
the foregoing procedures shall be final and binding on both Landlord and
Tenant
as to such items. Any adjustment required to be made to any previous payment
made by Tenant by reason of such decision shall be made by Tenant or Landlord
within ten (10) business days after notice of the final decision has been
given
to Landlord and Tenant. The parties shall bear their own expenses regarding
any
audit of Operating Expenses. Landlord will bear the cost of the Property
Manager
if it is determined that Landlord has overstated Tenant’s Share of Operating
Expenses for the applicable calendar year by more than $0.05 per square foot
of
Rentable Area of the Leased Premises, so long as the Tenant’s auditor bills on
an hourly rate and does not perform the review of the Landlord’s records on a
contingency basis; and Tenant will bear the cost of the Property Manager
in all
other events. Following the resolution of any objection raised by Tenant
pursuant to the terms and procedures set forth in this Section 6.3.4, any
and
all subsequent calculations and xxxxxxxx relating to matters which are similar
to the matters that were the subject of such objection shall be determined
in a
manner which is consistent with the resolution of the initial objection.
7. UTILITIES
AND SERVICES.
7.1. Standard
Tenant Services.
Landlord
shall provide the following services on all days during the Lease Term, unless
otherwise stated below.
7.1.1. Subject
to reasonable changes implemented by Landlord and to all governmental rules,
regulations and guidelines applicable thereto, Landlord shall provide heating
and air conditioning when necessary for normal comfort for normal office
use in
the Leased Premises, from Monday through Friday, during the period from 7:00
a.m. to 6:00 p.m., and on Saturday during the period from 7:00 a.m. to 1:00
p.m., except for the date of observation of New Year's Day, Presidents' Day,
Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Christmas Day
and
other locally or nationally recognized holidays (collectively, the
"Holidays").
7.1.2. Landlord
shall provide adequate electrical wiring and facilities and power for normal
general office use for Building standard lighting and standard office equipment,
as determined by Landlord. Tenant shall bear the cost of replacement of
non-Building standard lamps, starters and ballasts for lighting fixtures
within
the Leased Premises.
7.1.3. Landlord
shall provide city water from the regular Building outlets for drinking,
lavatory and toilet purposes.
7.1.4. Landlord
shall provide janitorial services five (5) days per week, except the date
of
observation of the Holidays, in and about the Leased Premises and window
washing
services in a manner consistent with other comparable buildings in the vicinity
of the Building.
7.1.5. Except
when repairs or inspections are being made thereto, and subject to such rules
and regulations as established by Landlord from time to time, Landlord shall
provide nonexclusive automatic passenger elevator service for use by Tenant,
its
customers and employees at all times.
7.2. Overstandard
Tenant Use.
Tenant
shall not, without Landlord's prior written consent, use heat-generating
machines, machines other than normal fractional horsepower office machines,
or
equipment or lighting other than building standard lights in the Leased
Premises, which may affect the temperature otherwise maintained by the air
conditioning system or increase the water normally furnished for the Leased
Premises by Landlord pursuant to the terms of Section 7.1 of this Lease.
7.3. Additional
Services.
Landlord
shall also have the right, but not the obligation, to provide any additional
services which may be required by Tenant, including, without limitation,
locksmithing, non-Building standard lamp replacement, additional janitorial
service and additional repairs and maintenance, provided that Tenant shall
pay
to Landlord upon billing, the sum of all costs to Landlord of such additional
services. Charges for any service for which Tenant is required to pay from
time
to time hereunder, shall be deemed additional rent hereunder and shall be
billed
on a monthly basis.
6
7.4. Interruption
of Services.
Landlord
shall not be liable for any damage, loss or expense incurred by Tenant by
reason
of any interruption or failure of the utilities and services. Landlord may,
with
notice to Tenant, or without notice in case of emergency, cut off and
discontinue utilities and service when such discontinuance is necessary in
order
to make repairs or alterations. No such action shall be construed as an eviction
or disturbance of possession by Landlord or relieve Tenant from paying Rent
or
performing any of its obligations under this Lease.
8. MAINTENANCE
AND REPAIRS.
8.1. Tenant's
Repairs.
Subject
to Landlord's repair obligations in Section 8.2 below, and subject to
Section 22.18 below, Tenant shall, at Tenant's own expense, keep the Leased
Premises, including all improvements, fixtures and furnishings therein, in
good
order, repair and condition at all times during the Lease Term. In addition,
Tenant shall, at Tenant's own expense but under the supervision and subject
to
the prior approval of Landlord, and within any reasonable period of time
specified by Landlord, promptly and adequately repair all damage to the Leased
Premises and replace or repair all damaged or broken fixtures and appurtenances;
provided however, that, at Landlord's option, or if Tenant fails to make
such
repairs, Landlord may, but need not, make such repairs and replacements,
and
Tenant shall pay Landlord the cost thereof, including a percentage of the
cost
thereof (to be uniformly established for the Building) sufficient to reimburse
Landlord for all overhead, general conditions, fees and other costs or expenses
arising from Landlord's involvement with such repairs and replacements forthwith
upon being billed for same. Landlord may, but shall not be required to, enter
the Leased Premises at all reasonable times to make such repairs, alterations,
improvements and additions to the Leased Premises or at the Building or to
any
equipment located in the Building as Landlord shall desire or deem necessary
or
as Landlord may be required to do by governmental or quasi-governmental
authority or court order or decree.
8.2. Landlord's
Repairs.
Anything
contained in Section 8.1 above to the contrary notwithstanding, Landlord
shall repair and maintain the structural portions of the Building, including
the
basic plumbing, heating, ventilating, air conditioning and electrical systems
installed or furnished by Landlord (but not including any non-base building
facilities installed by or on behalf of Tenant); provided, however, to the
extent such maintenance and repairs are caused in part or in whole by the
act,
neglect, fault of or omission of any duty by Tenant, its agents, servants,
employees or invitees, Tenant shall pay to Landlord as additional rent, the
reasonable cost of such maintenance and repairs. Landlord shall not be liable
for any failure to make any such repairs, or to perform any maintenance unless
such failure shall persist for an unreasonable time after written notice
of the
need of such repairs or maintenance is given to Landlord by Tenant. There
shall
be no abatement of rent and no liability of Landlord by reason of any injury
to
or interference with Tenant's business arising from the making of any repairs,
alterations or improvements in or to any portion of the Building or the Leased
Premises or in or to fixtures, appurtenances and equipment therein. Tenant
hereby waives and releases any right to make repairs at Landlord's expense
under
any law, statute or ordinance now or hereafter in effect.
8.3. Notification
to Landlord.
Tenant
agrees to promptly notify Landlord or its representative of any accidents
or
defects in the Building of which Tenant becomes aware, including defects
in
pipes, electrical wiring and HVAC equipment. In addition, Tenant shall provide
Landlord with prompt notification of any matter or condition which may cause
injury or damage to the Building or any person or property therein.
8.4. Condition
Upon Expiration of Lease.
Upon
the expiration of the Lease Term, or any sooner termination, Tenant shall
remove
all of its personal property, including, without limitation, any wiring or
cabling installed in the Premises on or behalf of Tenant, and any alterations
and improvements required to be removed pursuant to Section 9.2 below and
surrender the Leased Premises in good condition, ordinary wear and tear
excepted. Tenant shall repair, at its expense, any damage to the Leased Premises
occasioned by its removal of any article of personal property, trade fixtures,
furnishings, signs, and improvements including but not limited to repairing
the
floor, patching holes and painting walls. Notwithstanding the foregoing,
Tenant
is not obligated the bank vault located in the first floor bank lobby area
of
the Building.
9. ALTERATIONS
AND ADDITIONS.
9.1. Landlord's
Consent Required.
Tenant
shall not make any alterations or additions to the Leased Premises without
first
procuring Landlord's written consent, which consent shall not be unreasonably
withheld. In no event, however, shall Tenant alter the exterior of the Leased
Premises or make any change or alteration which would impair the structural
soundness of the Building. Upon obtaining such consent, Tenant shall cause
the
work to be done promptly and in good and workmanlike manner and in accordance
with the plans and specifications submitted to and approved by Landlord.
Landlord's consent notwithstanding, all work shall be performed in accordance
with all applicable building codes and governmental laws, rules and regulations,
including, without limitation, the Americans with Disabilities Act. All work
done and materials supplied shall be done or supplied only by contractors
approved by Landlord, and Landlord shall have the right to grant such approval
conditionally or to withdraw the same at any time. Landlord's approval hereunder
shall create no responsibility or liability on the part of Landlord for the
completeness, design, sufficiency or compliance with all laws, rules and
regulations of governmental agencies or authorities regarding the alterations.
Any and all alterations or additions to the Leased Premises to be performed
by
or on behalf of Tenant shall be further subject to the provisions of
Section 22.18 below.
9.2. Surrender
at End of Lease Term.
Any
alterations, additions and improvements made by Tenant on the Leased Premises,
except Tenant's trade fixtures, shall at once when made become property of
Landlord and remain upon and be surrendered with the Leased Premises at the
expiration of the Lease Term, unless prior to the termination date Landlord
provides written notice to Tenant to remove the same, in which case Tenant
shall
remove same on or before the expiration of the Lease Term, and repair any
damage
resulting from such removal.
7
9.3. Payment
for Work.
All
costs of any such work shall be paid promptly by Tenant so as to avoid the
assertion of any mechanic's or materialman's lien. Tenant shall discharge,
by
bonding, payment or other means, any mechanic's lien filed against the Leased
Premises or the Building within thirty (30) days after the receipt of notice
thereof, and shall promptly inform Landlord of any such notice. If the lien
is
not discharged within said thirty (30) day period, Landlord shall have the
right, but not the obligation, to discharge said lien by payment, bonding
or
otherwise, and the costs and expenses to Landlord of obtaining such discharge
shall be paid to Landlord by Tenant on demand as additional rent. Whether
or not
Tenant orders any work directly from Landlord, Tenant shall pay to Landlord
a
percentage of the cost of such work (such percentage, which shall vary depending
upon whether or not Tenant orders the work directly from Landlord, to be
established on a uniform basis for the Building) sufficient to compensate
Landlord for all overhead, general conditions, fees and other costs and expenses
arising from Landlord's involvement with such work.
9.4. Protection
against Liens.
At
least five (5) days prior to the commencement of any work on the Leased
Premises, Tenant shall notify Landlord of the names and addresses of the
persons
supplying labor and materials for the proposed work so Landlord may avail
itself
of the provisions of statutes such as Section 00-00-000 of the Colorado
Revised Statutes. During the progress of any such work on the Leased Premises,
Landlord or its representatives shall have the right to go upon and inspect
the
Leased Premises at all reasonable times, and shall have the right to post
and
keep posted thereon notices such as those provided for by CRS
Section 00-00-000 or to take any further action which Landlord may deem to
be proper for the protection of Landlord's interest in the Leased
Premises.
10. INSURANCE.
10.1. Tenant's
Compliance with Landlord's Fire and Casualty Insurance; Landlord’s
Insurance.
Tenant
shall, at Tenant's expense, comply as to the Leased Premises with all insurance
company requirements pertaining to the use of the Leased Premises. If Tenant's
conduct or use of the Leased Premises causes any increase in the premium
for
such insurance policies, then Tenant shall reimburse Landlord for any such
increase. Tenant, at Tenant's expense, shall comply with all rules, orders,
regulations or requirements of the American Insurance Association (formerly
the
National Board of Fire Underwriters) and with any similar body. At
all time during the Lease Term, Landlord shall keep or cause to be kept;
(i)
personal injury and property damage liability insurance for the Common Areas,
with commercially reasonable limits; and (ii) “All-Risk” property coverage on
the Building, in an amount equal to the full replacement value of the
Building.
10.2. Tenant’s
Insurance.
Tenant
shall maintain the following coverages in the following:
10.2.1. Commercial
General Liability Insurance covering the insured against claims of bodily
injury, personal injury and property damage arising out of Tenant's operations,
assumed liabilities or use of the Leased Premises, including a Broad Form
Commercial General Liability endorsement covering the insuring provisions
of
this Lease and the performance by Tenant of the indemnity agreements set
forth
in Article 11 of this Lease, (and liquor liability coverage in the event
alcoholic beverages are served on the Leased Premises) for limits of liability
not less than:
|
Bodily
Injury and
Property
Damage Liability
|
$1,000,000
each occurrence
$1,000,000
annual aggregate
|
|
Personal
Injury Liability
|
$1,000,000
each occurrence
$1,000,000
annual aggregate
0%
Insured's participation
|
10.2.2. Physical
Damage Insurance covering (i) all office furniture, trade fixtures, office
equipment, merchandise and all other items of Tenant's property on the Leased
Premises installed by, for, or at the expense of Tenant, (ii) the Tenant
Improvements, including any Tenant Improvements which Landlord permits to
be
installed above the ceiling of the Leased Premises or below the floor of
the
Leased Premises, and (iii) all other improvements, alterations and
additions to the Leased Premises, including any improvements, alterations
or
additions installed at Tenant's request above the ceiling of the Leased Premises
or below the floor of the Leased Premises. Such insurance shall be written
on an
"all risks" of physical loss or damage basis, for the full replacement cost
value new without deduction for depreciation of the covered items and in
amounts
that meet any co-insurance clauses of the policies of insurance and shall
include a vandalism and malicious mischief endorsement, sprinkler leakage
coverage and earthquake sprinkler leakage coverage.
10.2.3. Workers'
compensation insurance as required by law.
10.2.4. Loss-of-income,
business interruption and extra-expense insurance in such amounts as will
reimburse Tenant for direct and indirect loss of earnings attributable to
all
perils commonly insured against by prudent tenants or attributable to prevention
of loss of access to the Leased Premises or to the Building as a result of
such
perils.
8
10.2.5. Form
of Policies.
The
minimum limits of policies of insurance required of Tenant under this Lease
shall in no event limit the liability of Tenant under this Lease. Such insurance
shall: (i) name Landlord, Landlord's lenders, the lessors of a ground or
underlying lease with respect to the Real Property and any other party Landlord
so specifies, as an additional insured; (ii) specifically cover the
liability assumed by Tenant under this Lease, including, but not limited
to,
Tenant's obligations under Article 11 of this Lease; (iii) be issued
by an insurance company having a rating of not less than A-X in Best's Insurance
Guide or which is otherwise acceptable to Landlord and licensed to do business
in the state in which the Real Property is located; (iv) be primary
insurance as to all claims thereunder and provide that any insurance carried
by
Landlord is excess and is non-contributing with any insurance requirement
of
Tenant; (v) provide that said insurance shall not be canceled or coverage
changed unless thirty (30) days' prior written notice shall have been given
to
Landlord and any mortgagee or ground or underlying lessor of Landlord;
(vi) contain a cross-liability endorsement or severability of interest
clause acceptable to Landlord; and (vii) with respect to the insurance
required in Sections 10.2.1, 10.2.2, 10.2.4 and 10.2.5 above, have
deductible amounts not exceeding $10,000.00. Tenant shall deliver said policy
or
policies or certificates thereof to Landlord on or before the Lease Commencement
Date and at least thirty (30) days before the expiration dates thereof. If
Tenant shall fail to procure such insurance, or to deliver such policies
or
certificate, within such time periods, Landlord may, at its option, in addition
to all of its other rights and remedies under this Lease, and without regard
to
any notice and cure periods set forth in Section 16.1, procure such
policies for the account of Tenant, and the cost thereof shall be paid to
Landlord as Additional Rent within ten (10) days after delivery of bills
therefor.
10.3. Subrogation.
Landlord
and Tenant agree to have their respective insurance companies issuing property
damage insurance waive any rights of subrogation that such companies may
have
against Landlord or Tenant, as the case may be. Landlord and Tenant hereby
waive
any right that either may have against the other on account of any loss or
damage to their respective property to the extent such loss or damage is
insurable under policies of insurance for fire and all risk coverage, theft,
public liability, or other similar insurance.
11. INDEMNITY.
11.1. Indemnification
of Landlord.
Tenant
shall indemnify and hold Landlord harmless from and against any and all losses,
claims and damages arising from Tenant's use of the Leased Premises or the
conduct of its business or from any activity, work or thing done, permitted
or
suffered by Tenant in or about the Leased Premises, and shall further indemnify
and hold Landlord harmless from and against any and all claims arising from
any
breach or default in the performance of any obligation on Tenant's part to
be
performed under the terms of this Lease, or arising from any act or negligence
of Tenant or any of its agents, contractors or employees, and from and against
all costs, attorney's fees, expenses and liabilities incurred in or about
any
such claim or any action or proceeding brought thereon; and in case any action
or proceeding be brought against Tenant by reason of any such claim, Tenant,
upon notice from Landlord, shall defend the same at Tenant's expense by counsel
reasonably satisfactory to Landlord.
11.2. Indemnification
of Other Tenants.
Tenant
shall indemnify and save harmless all other tenants of the Building from
any
loss or damage caused to the Building owing to the leakage or escape of water,
gas or other substances from any pipes, machinery or equipment installed
by
Tenant within the Building.
11.3. Indemnification
of Tenant.
Landlord
shall indemnify and hold Tenant harmless from and against any and all losses,
claims and damages arising from any and all claims arising from any breach
or
default in the performance of any obligation on Landlord’s part to be performed
under the terms of this Lease, or arising from any act or negligence of Landlord
or any of its agents, contractors or employees, and from and against all
costs,
attorney's fees, expenses and liabilities incurred in or about any such claim
or
any action or proceeding brought thereon; and in case any action or proceeding
be brought against Landlord by reason of any such claim, Landlord, upon notice
from Tenant, shall defend the same at Landlord’s expense by counsel reasonably
satisfactory to Tenant.
12. DAMAGE,
DESTRUCTION AND BUSINESS INTERRUPTION.
12.1. Repair
of Damage to Leased Premises by Landlord.
Tenant
shall promptly notify Landlord of any damage to the Leased Premises resulting
from fire or any other casualty. If the Leased Premises or any Common Areas
of
the Building serving or providing access to the Leased Premises shall be
damaged
by fire or other casualty, Landlord shall promptly and diligently, subject
to
reasonable delays for insurance adjustment or other matters beyond Landlord's
reasonable control, and subject to all other terms of this Article 12,
restore the structural components of the Leased Premises and such Common
Areas.
Such restoration shall be to substantially the same condition of the structural
components of the Leased Premises and Common Areas prior to the casualty,
except
for modifications required by zoning and building codes and other laws or
by the
holder of a mortgage on the Building, or the lessor of a ground or underlying
lease with respect to the Real Property and/or the Building, or any other
modifications to the Common Areas deemed desirable by Landlord, provided
access
to the Leased Premises and any common restrooms serving the Leased Premises
shall not be materially impaired. Notwithstanding any other provision of
this
Lease, upon the occurrence of any damage to the Leased Premises, Tenant shall
assign to Landlord (or to any party designated by Landlord) all insurance
proceeds payable to Tenant under Tenant's insurance required under
Section 10.2 above pertaining to all tenant improvements and fixtures in
the Leased Premises (but not Tenant's personal property), and Landlord shall
repair any injury or damage to the tenant improvements installed in the Leased
Premises and shall return such tenant improvements to their original condition;
provided that if the cost of such repair by Landlord exceeds the amount of
insurance proceeds received by Landlord from Tenant's insurance carrier,
as
assigned by Tenant, the cost of such repairs shall be paid by Tenant to Landlord
prior to Landlord's repair of the damage. In connection with such repairs
and
replacements, Tenant shall, prior to the commencement of construction, submit
to
Landlord, for Landlord's review and approval, all plans, specifications and
working drawings relating thereto, and Landlord shall select the contractors
to
perform such improvement work. Landlord shall not be liable for any
inconvenience or annoyance to Tenant or its visitors, or injury to Tenant's
business resulting in any way from such damage or the repair thereof; provided
however, that if such fire or other casualty shall have damaged the Leased
Premises or Common Areas necessary to Tenant's occupancy, and if such damage
is
not the result of the negligence or willful misconduct of Tenant or Tenant's
employees, contractors, licensees, or invitees, Landlord shall allow Tenant
a
proportionate abatement of Base Rent and Tenant's proportionate share of
Operating Expenses to the extent Landlord is reimbursed from the proceeds
of
rental interruption insurance purchased by Landlord as part of Operating
Expenses, during the time and to the extent the Leased Premises are unfit
for
occupancy for the purposes permitted under this Lease, and not occupied and
used
by Tenant as a result thereof.
9
12.2. Landlord's
Option to Repair.
Notwithstanding
the terms of Section 12.1 of this Lease, Landlord may elect not to rebuild
and/or restore the Leased Premises and/or Building and instead terminate
this
Lease by notifying Tenant in writing of such termination within sixty (60)
days
after Landlord becomes aware of such damage, such notice to include a
termination date giving Tenant up to ninety (90) days to vacate the Leased
Premises, but Landlord may so elect only if the Building shall be damaged
by
fire or other casualty or cause, whether or not the Leased Premises are
affected, and one or more of the following conditions is present:
(i) repairs cannot reasonably be completed within one hundred twenty (120)
days of the date of damage (when such repairs are made without the payment
of
overtime or other premiums); (ii) the holder of any mortgage on the
Building or ground or underlying lessor with respect to the Real Property
and/or
the Building shall require that the insurance proceeds or any portion thereof
be
used to retire the mortgage debt, or shall terminate the ground or underlying
lease, as the case may be; or (iii) the damage is not fully covered by
Landlord's insurance policies. In addition, in the event that the Leased
Premises or the Building is destroyed or damaged to any substantial extent
during the last twenty-four (24) months of the Lease Term, then notwithstanding
anything contained in this Article 12, Landlord shall have the option to
terminate this Lease by giving written notice to Tenant of the exercise of
such
option within thirty (30) days after Landlord becomes aware of such damage
or
destruction, in which event this Lease shall cease and terminate as of the
date
of such notice. Upon any such termination of the Lease pursuant to this
Section 12.2, Tenant shall pay the Base Rent and additional rent, properly
apportioned up to such date of termination, and both parties hereto shall
thereafter be freed and discharged of all further obligations hereunder,
except
as provided for in provisions of this Lease which by their terms survive
the
expiration or earlier termination of the Lease Term.
12.3. Waiver
of Statutory Provisions.
The
provisions of this Lease, including this Article 12, constitute an express
agreement between Landlord and Tenant with respect to any and all damage
to, or
destruction of, all or any part of the Leased Premises, the Building or any
other portion of the Real Property, and any statute or regulation of the
state
in which the Building is located, with respect to any rights or obligations
concerning damage or destruction in the absence of an express agreement between
the parties, and any other statute or regulation, now or hereafter in effect,
shall have no application to this Lease or any damage or destruction to all
or
any part of the Leased Premises, the Building or any other portion of the
Real
Property.
12.4. Tenant's
Responsibilities.
There
shall be no abatement of rent (except as expressly provided above in
Section 12.1) and no liability of Landlord by reason of any injury to or
interference with Tenant's business or property arising from the making of
any
repairs, alterations or improvements in or to any portion of the Building
or the
Leased Premises or in or to fixtures, appurtenances and equipment therein.
Tenant understands Landlord will not carry insurance of any kind on Tenant's
furniture, furnishings and other personal property, and Landlord shall not
be
obligated to repair any damage thereto or replace the same. All such property
shall be kept, stored and maintained at the sole risk of Tenant.
13. TENANT
TAXES.
13.1. Personal
Property.
Tenant
shall pay, prior to delinquency, all taxes, assessments, license fees and
public
charges levied, assessed or imposed upon or measured by the value of Tenant's
business operation, and/or the cost or value of any furniture, fixtures,
equipment and other personal property of Tenant at any time situated upon
or in
the Leased Premises. Tenant shall cause all such personal property to be
assessed and billed separately from the real property of Landlord.
13.2. Other
Taxes for Which Tenant Is Directly Responsible.
In
addition, Tenant shall reimburse Landlord upon demand for any and all taxes
or
assessments required to be paid by Landlord, excluding state, local and federal
personal or corporate income taxes measured by the net income of Landlord
from
all sources and estate and inheritance taxes, whether or not now customary
or
within the contemplation of the parties hereto, when:
13.2.1. Said
taxes are measured by or reasonably attributable to the cost or value of
any
leasehold improvements made in or to the Leased Premises by or for Tenant,
to
the extent the cost or value of such leasehold improvements exceeds the cost
or
value of a building standard build-out as determined by Landlord regardless
of
whether title to such improvements shall be vested in Tenant or
Landlord;
13.2.2. Said
taxes are assessed upon or with respect to the possession, leasing, operation,
management, maintenance, alteration, repair, use or occupancy by Tenant of
the
Leased Premises or any portion of the Real Property;
13.2.3. Said
taxes are assessed upon this transaction or any document to which Tenant
is a
party creating or transferring an interest or an estate in the Leased Premises;
or
13.2.4. Said
assessments are levied or assessed upon the Real Property or any part thereof
or
upon Landlord and/or by any governmental authority or entity, and relate
to the
construction, operation, management, use, alteration or repair of mass transit
improvements.
13.3. Increase
in Taxes.
If
at any time during the Lease Term any of Tenant's property is assessed as
a part
of the Leased Premises, or if the assessed value of Landlord's property is
increased by the inclusion therein of a value placed on Tenant's property
or
other improvements made by Tenant, Tenant shall pay to Landlord upon demand,
as
additional rent, the amount of any such additional taxes as may be levied
against the Building or Real Property by reason thereof.
10
14. COMMON
AREAS.
14.1. Definition.
The
term "Common Areas" means all areas and facilities outside the Leased Premises
provided and designated for the common use and convenience of Tenant and
other
tenants of the Building, their respective officers, agents, employees, customers
and invitees. Common Areas include, but are not limited to, corridors, lobbies,
pedestrian sidewalks, stairways, landscaped areas, restrooms on multi-tenant
floors, elevators and shipping and receiving areas of the Building.
14.2. Maintenance.
Landlord
agrees to maintain, operate and repair (or cause others to do so) all Common
Areas and to keep same in clean and sightly condition during the Lease Term.
The
manner in which such areas and facilities shall be maintained and the
expenditures therefor shall be at the discretion of Landlord and as to all
such
Common Areas Landlord shall have the right to adopt and promulgate reasonable
rules and regulations from time to time generally applicable to tenants and
occupants of the Building and their employees and business invitees. For
the
purpose of maintenance and repair, or to avoid an involuntary taking, Landlord
may temporarily close portions of the Common Areas, and such actions shall
not
be deemed an eviction of Tenant or a disturbance of Tenant's use of the Leased
Premises.
14.3. Tenant's
Rights and Obligations.
Landlord
grants to Tenant, during the Lease Term, the license to use, for the benefit
of
Tenant and its officers, agents, employees, customers and invitees, in common
with others entitled to such use, the Common Areas as they from time to time
exist, subject to the rights and privileges of Landlord herein reserved.
Tenant
shall not at any time interfere with the rights of Landlord and others entitled
to use any part of the Common Areas, and shall not store, permanently or
temporarily, any materials, supplies or equipment in the Common
Areas.
14.4. Changes
to Common Area.
Landlord
shall have the right at any time during the Lease Term to change, alter,
remodel, reduce, expand or improve the Common Areas, elevators, drains, pipes,
heating and air conditioning apparatus or any other part of the Building,
except
the Leased Premises, without compensation to Tenant. For such purposes, Landlord
or its agents or employees may, if necessary, enter, pass through and work
upon
the Leased Premises; provided Landlord shall carry out such work diligently
and
reasonably. If there is a change in the area of the Common Areas as a result
of
any of the foregoing, Landlord shall cause adjustments in the computation
of
Operating Expenses as shall be necessary to provide for any such
changes.
15. ASSIGNMENT
AND SUBLETTING.
15.1. Transfers.
Tenant
shall not, without the prior written consent of Landlord, voluntarily or
by
operation of law, assign, sublet, encumber or transfer all or any part of
Tenant's interest in this Lease or in the Leased Premises or permit any part
of
the Leased Premises to be used or occupied by any person other than Tenant,
its
employees, customers and others having lawful business with Tenant (all of
the
foregoing are hereinafter sometimes referred to collectively as "Transfers"
and
any person or entity to whom any Transfer is made or sought to be made is
hereinafter sometimes referred to as a "Transferee"). Notwithstanding the
foregoing, Tenant may conduct a Transfer, without Landlord’s consent, regarding
any of the Leased Premises to an affiliate or subsidiary of Tenant or to
any
entity currently occupying the Leased Premises as of the date of this Lease.
If
Tenant shall desire Landlord's consent to any Transfer, Tenant shall notify
Landlord in writing, which notice (the "Transfer Notice") shall include:
(i) the proposed effective date of the Transfer, which shall not be less
than forty-five (45) days nor more than one hundred eighty (180) days after
the
date of delivery of the Transfer Notice; (ii) a description of the portion
of the Leased Premises to be transferred (the "Subject Space"); (iii) all
of the terms of the proposed Transfer and the consideration thereof, including
a
calculation of the "Profit Rental," as that term is defined in Section 15.4
below, in connection with such Transfer, the name and address of the proposed
Transferee, and a copy of all existing operative documents to be executed
to
evidence such Transfer or the agreements incidental or related to such Transfer;
and (iv) current financial statements pertaining to the proposed Transferee
certified by an officer, partner or owner thereof, and any other information
required by Landlord, which will enable Landlord to determine the financial
responsibility, character, and reputation of the proposed Transferee, nature
of
such Transferee's business and proposed use of the Subject Space, and such
other
information as Landlord may reasonably require.
15.2. Landlord's
Consent.
Subject
to Landlord's rights in Section 15.3 below, Landlord shall not unreasonably
withhold its consent to any proposed Transfer of the Subject Space to the
Transferee on the terms specified in the Transfer Notice. The parties hereby
agree that it shall be reasonable under this Lease and under any applicable
law
for Landlord to withhold consent to any proposed Transfer where one or more
of
the following apply, without limitation as to other reasonable grounds for
withholding consent:
(i) The
Transferee is of a character or reputation or engaged in business which is
not
consistent with the quality of the Building;
(ii) The
Transferee intends to use the Subject Space for purposes which are not permitted
under this Lease;
(iii) The
Transferee is either a governmental agency or instrumentality
thereof;
(iv) The
Transfer will result in more than a reasonable and safe number of occupants
per
floor within the Subject Space;
11
(v) The
Transferee is not a party of reasonable financial worth and/or financial
stability in light of the responsibilities involved under the Lease on the
date
consent is requested;
(vi) The
proposed Transfer would cause Landlord to be in violation of another lease
or
agreement to which Landlord is a party, or would give an occupant of the
Building a right to cancel its lease;
(vii) The
terms of the proposed Transfer will allow the Transferee to exercise a right
of
renewal, right of expansion, right of first offer, or other similar right
held
by Tenant (or will allow the Transferee to occupy space leased by Tenant
pursuant to any such right); or
(viii) Either
the proposed Transferee, or any person or entity which directly or indirectly,
controls, is controlled by, or is under common control with, the proposed
Transferee, (A) occupies space in the Building at the time of the request
for consent (B) is negotiating with Landlord to lease space in the Building
at such time, or (C) has negotiated with Landlord during the twelve
(12)-month period immediately preceding the Transfer Notice.
If
Landlord consents to any Transfer pursuant to the terms of this
Section 15.2 (and does not exercise any of its rights under
Section 15.3 below), Tenant may within six (6) months after Landlord's
consent, but not later than the expiration of said six-month period, enter
into
such Transfer of the Leased Premises or portion thereof, upon substantially
the
same terms and conditions as are set forth in the Transfer Notice furnished
by
Tenant to Landlord pursuant to Section 15.1 of this Lease, provided that if
there are any changes in the terms and conditions from those specified in
the
Transfer Notice (A) such that Landlord would initially have been entitled
to refuse its consent to such Transfer under this Section 15.2, or
(B) which would cause the proposed Transfer to be more favorable to the
Transferee than the terms set forth in Tenant's original Transfer Notice,
Tenant
shall again submit the Transfer to Landlord for its approval and other action
under this Article 15 (including Landlord's right under Section 15.3
below).
15.3. Landlord's
Right to Sublet or Assume.
Intentionally deleted.
15.4. Limitation
on Profit Rental. In the event Tenant enters into a Transfer, Tenant shall
pay to Landlord the Profit Rental, if any, received from the Transferee,
as it
is received. "Profit Rental" shall be calculated by deducting from the amount
received by Tenant from the Transferee on account of the Transfer, the sum
of
the amounts payable to Landlord by Tenant pursuant to this Lease for the
Subject
Space which has been Transferred and all costs of Tenant of such Transfer
including broker’s fees and commissions, attorney’s fees, tenant finish
allowances, and any amounts paid for the use or sale of personal property,
equipment, or furniture.
15.5. Continuing
Obligations.
No
Transfer, even with Landlord's consent, shall relieve Tenant of its obligations
to pay the Rent and to perform all of the other obligations to be performed
by
Tenant under this Lease, unless the subtenant or assignee is Landlord pursuant
to Section 15.3. The acceptance of Rent by Landlord from any other person
shall not be deemed to be a waiver by Landlord of any provision of this Lease
or
to be a consent to any subsequent Transfer, and Tenant shall offer to sublet
or
assign to Landlord pursuant to Section 15.3 prior to requesting consent for
any subsequent Transfer.
15.6. Corporations
and Partnerships.
A
sale by Tenant of all or substantially all of its assets shall constitute
a
Transfer for purposes of this Lease. If Tenant is a corporation, then any
assignment or transfer of this Lease by merger, consolidation or liquidation,
or
any change in ownership of or power to vote of a majority of its outstanding
voting stock shall, in Landlord's reasonable discretion, constitute a Transfer
for purposes of this Lease. If Tenant is a partnership, then any change in
the
identity of the general partners having an aggregate interest in the partnership
exceeding fifty percent (50%) shall, in Landlord's reasonable discretion,
constitute a Transfer for purposes of this Lease.
16. TENANT'S
DEFAULT.
16.1. Definition.
The
occurrence of any of the following shall constitute a default and breach
of this
Lease by Tenant:
16.1.1. Any
failure by Tenant to pay when due any Rent or any other monetary sums required
to be paid hereunder.
16.1.2. Any
failure by Tenant to observe and perform any other provisions of this Lease
to
be observed or performed by Tenant within fifteen (15) days after notice
thereof
has been provided to Tenant by Landlord, or if performance is not possible
within said period, any failure of Tenant to commence performance within
said
period and to diligently prosecute such performance to completion.
16.1.3. Intentionally
creating or permitting to be created a nuisance which shall not be abated
within
five (5) days after written notice thereof from Landlord.
16.1.4. If
Tenant, or any guarantor of Tenant's obligations under this Lease ("Guarantor"),
admits in writing that it cannot meet its obligations as they become due;
or is
declared insolvent according to any law; or assignment of Tenant's or
Guarantor's property is made for the benefit of creditors; or a receiver
or
trustee is appointed for Tenant or Guarantor or its property; or the interest
of
Tenant or Guarantor under this Lease is levied on under execution or other
legal
process; or any petition is filed by or against Tenant or Guarantor to declare
Tenant bankrupt or to delay, reduce or modify Tenant's debts or obligations;
or
any petition is filed or other action taken to reorganize or modify Tenant's
or
Guarantor's capital structure, if Tenant or Guarantor is a corporation or
other
entity; any such levy, execution, legal process or petition filed against
Tenant
or Guarantor shall not constitute a breach of this Lease provided Tenant
or
Guarantor shall vigorously contest the same by appropriate proceedings and
shall
remove or vacate the same within sixty (60) days from the date of its creation,
service or filing.
12
16.1.5. The
taking of this Lease or Tenant's interest therein under writ of
execution.
16.2. Interest
on Unpaid Sums.
If
any Rent, or any other monetary sum required to be paid hereunder by Tenant
to
Landlord, is not paid when due, such sum shall accrue interest from the date
due
until received at the rate which is the higher of (i) the Interest Rate or
(ii) ten percent (10%) per annum.
16.3. Remedies.
In
the event of any such default or breach by Tenant, Landlord may at any time
thereafter, without limiting Landlord in the exercise of any other right
or
remedy which Landlord may have:
16.3.1. Without
terminating this Lease, reenter and attempt to relet or take possession pursuant
to legal proceedings and remove all persons and property from the Leased
Premises. In such event, Landlord may, from time to time, make such alterations
and repairs as may be necessary in order to relet the Leased Premises or
any
part thereof for such term or terms (which may be for a term extending beyond
the Lease Term) and at such rental or rentals and upon such other terms and
conditions as Landlord, in its sole discretion, may deem advisable. Upon
each
such reletting, all rentals received by Landlord from such reletting shall
be
applied: first, to the payment of any costs and expenses of such reletting,
including brokerage fees and attorney's fees; second, to the payment of any
indebtedness other than Rent due hereunder from Tenant to Landlord; third,
to
the payment of Rent due and unpaid hereunder; and the residue, if any, shall
be
held by Landlord and applied to payment of future rent as the same may become
due and payable hereunder. If such rentals received from such reletting during
any month be less than that to be paid during that month by Tenant hereunder,
Tenant shall pay any such deficiency to Landlord. Such deficiency shall be
calculated and paid monthly. In no event shall Tenant be entitled to any
excess
of any rental obtained by reletting over and above the Rent herein reserved.
Actions to collect amounts due by Tenant to Landlord as provided in this
Section
may be brought from time to time, on one or more occasions, without the
necessity of Landlord's waiting until expiration of the Lease Term. No such
reentry or taking possession of the Leased Premises by Landlord shall be
construed as an election on its part to terminate this Lease unless a notice
of
such intention is given to Tenant or unless the termination thereof be decreed
by a court of competent jurisdiction. Notwithstanding any such reletting
without
termination, Landlord may at any time thereafter elect in writing to terminate
this Lease for such previous breach. No such alteration of locks or other
security devices and no removal or other exercise of dominion by Landlord
over
Tenant's Property or others at the Leased Premises shall be deemed unauthorized
or constitute a conversion of the Leased Premises or the property of Tenant
therein or termination of the Lease, Tenant hereby consenting, after any
Tenant
default, to the aforesaid exercise of dominion over Tenant's property within
the
Leased Premises. All claims for damages by reason of such reentry and/or
repossession and/or alteration of locks or other security devices are hereby
waived, as are all claims for damages by reason of any distress warrant,
forcible detainer proceedings, sequestration proceedings or other legal process.
Tenant agrees that any reentry by Landlord may be pursuant to judgment obtained
in forcible detainer proceedings or other legal proceedings or without the
necessity for any legal proceedings, as Landlord may elect, and Landlord
shall
not be liable in trespass or otherwise.
16.3.2. WITHOUT
TERMINATING THIS LEASE, DEMAND THAT ALL RENT PAYABLE BY TENANT UNDER THIS
LEASE
FOR THE REMAINDER OF THE LEASE TERM BE ACCELERATED AND IMMEDIATELY DUE AND
OWING
WITHOUT DISCOUNT. TENANT FULLY UNDERSTANDS THIS PROVISION AND AGREES TO RENDER
PAYMENT OF THE AMOUNTS DESCRIBED IN THIS SECTION 16.3.2 IN FULL IF SO
REQUESTED BY LANDLORD.
16.3.3. Terminate
this Lease and Tenant's right to possession, in which case Tenant shall
immediately surrender possession. In addition to any other remedies which
Landlord may have, it shall have the right to recover from Tenant: (i) the
amount equal to any unpaid rent which has been earned at the time of such
termination; (ii) as liquidated damages for loss of bargain, and not as a
penalty, an amount equal to the excess, if any, of the aggregate amount of
Rent
and other charges which are Tenant's obligation to pay under this Lease for
the
remainder of the stated term over the aggregate of the then reasonable rental
value of the Leased Premises under a lease substantially similar to this
Lease
for the remainder of the stated term, all of which amounts shall be discounted
to present value at the passbook savings rate of U.S. Bank, a national banking
association, or its successor, then in effect and shall be immediately due
and
payable; and (iii) all other damages and expenses which Landlord has
sustained because of Tenant's default, including reasonable attorney's fees,
the
cost of recovering the Leased Premises, brokerage commissions and advertising
expenses incurred, and expenses of remodeling the Leased Premises or any
portion
thereof for a new tenant, whether for the same or a different use and any
special concessions made to obtain a new tenant.
16.3.4. If
Tenant should fail to make any payment or cure any default hereunder within
the
time herein permitted, Landlord, without being under any obligation to do
so and
without thereby waiving such default, may make such payment and/or remedy
such
other default for the account of Tenant (and enter the Leased Premises for
such
purpose), and thereupon Tenant shall be obligated to, and hereby agrees,
to pay
Landlord, upon demand, all costs, expenses and disbursements (including
reasonable attorneys' fees) incurred by Landlord in taking such remedial
action
as additional rent.
16.3.5. No
receipt of money by Landlord from Tenant after the termination of this Lease
as
herein provided shall reinstate, continue or extend the Lease Term or operate
as
a waiver of the right of Landlord to enforce the payment of Rent or other
money
when due by Tenant, or operate as a waiver of the right of Landlord to recover
possession of the Leased Premises by proper remedy.
13
16.3.6. In
addition to any other remedies Landlord may have at law or equity and/or
under
this Lease, Tenant shall pay upon demand all Landlord's costs, charges and
expenses, including fees of counsel, agents and others retained by Landlord,
whether or not suit is filed, incurred in connection with the recovery under
this Lease or for any other relief against Tenant. In the event Landlord
or
Tenant shall bring any action against the other, the losing party shall pay
the
successful party's reasonable attorneys fees and court costs.
16.3.7. All
covenants and agreements to be kept or performed by Tenant under this Lease
shall be performed by Tenant at Tenant's sole cost and expense and without
any
reduction of Rent. If Tenant shall fail to perform any of its obligations
under
this Lease, within a reasonable time after such performance is required by
the
terms of this Lease, Landlord may, but shall not be obligated to, after
reasonable prior notice to Tenant, make any such payment or perform any such
act
on Tenant's part without waiving its right based upon any default of Tenant
and
without releasing Tenant from any obligations hereunder.
16.3.8. Except
as may be specifically provided to the contrary in this Lease, Tenant shall
pay
to Landlord, within fifteen (15) days after delivery by Landlord to Tenant
of
statements therefor: (i) sums equal to expenditures reasonably made and
obligations incurred by Landlord in connection with the remedying by Landlord
of
Tenant's defaults pursuant to the provisions of this Section 16;
(ii) sums equal to all losses, costs, liabilities, damages and expenses
referred to in Article 10 of this Lease; and (iii) sums equal to all
expenditures made and obligations incurred by Landlord in collecting or
attempting to collect the Rent or in enforcing or attempting to enforce any
rights of Landlord under this Lease or pursuant to law, including, without
limitation, all legal fees and other amounts so expended. Tenant's obligations
under this Section 16.3.8 shall survive the expiration or sooner
termination of the Lease Term.
16.4. Late
Charges.
Tenant
hereby acknowledges late payment by Tenant to Landlord of Rent and other
sums
due hereunder will cause Landlord to incur costs not contemplated by this
Lease,
the exact amount of which will be extremely difficult to ascertain. Such
costs
include, but are not limited to, processing and accounting charges and late
charges which may be imposed on Landlord by the terms of any mortgage or
trust
deed covering the Leased Premises. Accordingly, if any Rent or any other
sum due
from Tenant shall not be received by Landlord or Landlord's designee when
due,
Tenant shall pay to Landlord a late charge equal to five percent (5%) of
such
overdue amount. The parties hereby agree such late charge represents a fair
and
reasonable estimate of the cost Landlord will incur by reason of late payment
by
Tenant. Acceptance of such late charge by Landlord shall in no event constitute
a waiver of Tenant's default with respect to such overdue amount nor prevent
Landlord from exercising any of the other rights and remedies granted
hereunder.
17. LANDLORD'S
DEFAULT.
17.1. Notice
to Landlord.
Landlord
shall in no event be charged with default in the performance of any of its
obligations hereunder unless and until Landlord shall have failed to perform
such obligations within thirty (30) days (or within such additional time
as is
reasonably required to correct any such default) after notice to Landlord
by
Tenant properly specifying wherein Landlord has failed to perform any such
obligations.
17.2. Notice
to Mortgagee.
If
the holder of record of the first mortgage covering the Leased Premises shall
have given prior notice to Tenant that it is the holder of the first mortgage
and such notice includes the address at which notices to such mortgagee are
to
be sent, then Tenant shall give to the holder of record of such first mortgage
notice simultaneously with any notice given to Landlord to correct any default
of Landlord as hereinabove provided. The holder of record of such first mortgage
shall have the right, within thirty (30) days after receipt of said notice
(or
within such additional time as is reasonably required) to correct any such
default including time to obtain possession of the Leased Premises by
foreclosure or other means before Tenant may take any action under this Lease
by
reason of such default. Any notice of default given Landlord shall be null
and
void unless simultaneous notice has been given to said first
mortgagee.
17.3. Landlord's
Exculpation.
It
is expressly understood and agreed that notwithstanding anything in this
Lease
to the contrary, and notwithstanding any applicable law to the contrary,
the
liability of Landlord (including any successor Landlord) and any recourse
by
Tenant against Landlord shall be limited solely and exclusively to an amount
which is equal to the interest of Landlord in the Building and Real Property,
and neither Landlord, nor any of Landlord's officers, members or partners
nor
their respective officers, agents, directors or employees shall have any
personal liability therefor.
18. CONDEMNATION.
18.1. Effect
of Taking.
If
the Leased Premises or any portion thereof are taken under the power of eminent
domain, or sold by Landlord under the threat of the exercise of said power
(all
of which is herein referred to as "condemnation"), subject to Section 18.4
below, this Lease shall terminate as to the part so taken as of the date
the
condemning authority takes title or possession, whichever occurs first. If
more
than twenty-five percent (25%) of the floor area of the Leased Premises is
taken
by condemnation and as a result thereof, the remaining portion of the Leased
Premises is rendered unfit for Tenant's use, then subject to Section 18.4
below,
Tenant may, at its option, terminate this Lease as of the date the condemning
authority takes possession, by providing Landlord notice in writing of its
intent to terminate not later than twenty (20) days after Landlord shall
have
notified Tenant of the taking. Failure of Tenant to so notify Landlord shall
constitute Tenant's agreement to continue the Lease in full force and effect
as
to the balance of the Leased Premises.
18.2. Rent
Reduction.
If
the Lease is not fully terminated after any taking, then it shall remain
in full
force and effect as to the portion of the Leased Premises remaining; provided
the Rent payable hereunder shall be reduced on an equitable basis, taking
into
account the relative value of the portion taken as compared to the portion
remaining. Landlord shall, at its expense, restore the remaining portion
to a
complete unit of like quality and character as existed prior to the
condemnation.
14
18.3. Awards.
All
awards for the taking of any part of the Leased Premises under the power
of
eminent domain shall be the property of Landlord, whether made as compensation
for diminution of value of the leasehold or for the taking of the fee; provided
however, that Tenant shall have the right to file any separate claim available
to Tenant for any taking of Tenant's personal property and fixtures belonging
to
Tenant and removable by Tenant upon expiration of the Lease Term pursuant
to the
terms of this Lease, and for moving expenses, so long as such claim is payable
separately to Tenant and does not diminish the award available to
Landlord.
18.4. Temporary
Taking.
Notwithstanding
anything to the contrary contained in this Article 18, in the event of a
temporary taking of all or any portion of the Leased Premises for a period
of
one hundred and eighty (180) days or less, then this Lease shall not
terminate but the Base Rent and Tenant's Share of Operating Expenses shall
be
abated for the period of such taking in proportion to the ratio that the
amount
of the Rentable Area of the Leased Premises taken bears to the total Rentable
Area of the Leased Premises. Landlord shall be entitled to receive the entire
award made in connection with any such temporary taking.
19. SUBORDINATION.
19.1. Mortgages.
This
Lease shall be subject and subordinate to the liens of any mortgages or deeds
of
trust and to any ground leases, in any amount or amounts whatsoever now or
hereafter placed on or against the land or improvements, or either thereof,
of
which the Leased Premises are a part, or on or against Landlord's interest
or
estate therein, without the necessity of the execution and delivery of any
further instruments on the part of Tenant to effectuate such subordination.
This
Lease shall be deemed prior to such mortgage or deed of trust or ground lease,
whether this Lease is dated prior or subsequent to the date of said mortgage
or
deed of trust or ground lease.
19.2. Further
Instruments.
Tenant
covenants and agrees to execute and deliver upon demand, without charge
therefor, such further instruments evidencing such subordination of this
Lease
to the lien of any such ground leases, mortgages or deeds of trust as may
be
required by Landlord. Tenant covenants and agrees in the event any proceedings
are brought for the foreclosure of any such mortgage, or if any ground or
underlying lease is terminated, to attorn, without any deductions or set-offs
whatsoever, to the purchaser upon any such foreclosure sale, or to the lessor
of
such ground or underlying lease, as the case may be, if so requested to do
so by
such purchaser or lessor, and to recognize such purchaser or lessor as the
lessor under this Lease. Tenant waives the provisions of any current or future
statute, rule or law which may give or purport to give Tenant any right or
election to terminate or otherwise adversely affect this Lease and the
obligations of the Tenant hereunder in the event of any foreclosure proceeding
or sale.
20. QUIET
ENJOYMENT.
20.1 Quiet
Enjoyment.
Landlord
agrees Tenant, upon paying Rent and other monetary sums due under this Lease
and
performing the covenants and conditions of this Lease, may quietly have,
hold
and enjoy the Leased Premises during the Lease Term hereof, subject, however,
to
the provisions herein referring to subordination and condemnation.
21.
DELAYS.
21.1
Extension
of Time.
Whenever
Landlord shall be delayed or restricted in the performance of any obligation
of
Landlord herein (including any obligation with respect to the provision of
any
service or utility or the performance of work or repairs) by reason of
Landlord's inability to obtain materials, services or labor required for
such
performance or by reason of any statute, law or regulation of a governmental
entity, or by reason of any other cause beyond Landlord's control, Landlord
shall be entitled to extend the time for such performance by a time equal
to the
extent of the delay or restriction, and Tenant shall not be entitled to
compensation for any inconvenience, nuisance or discomfort occasioned
thereby.
22.
GENERAL
PROVISIONS.
22.1 Estoppel
Certificates.
Tenant
shall, at any time, upon not less than ten (10) days written notice from
Landlord, execute, acknowledge and deliver to Landlord a statement in writing
(a) certifying this Lease is unmodified and in full force and effect (or if
modified, stating the nature of the modification) and the date to which the
Rent
and Operating Expenses are paid in advance, (b) acknowledging there are
not, to Tenant's knowledge, any uncured defaults on the part of Landlord
hereunder or specifying such default if any exist, and (c) containing such
other information reasonably requested by Landlord or Landlord's mortgagee
or
prospective mortgagee or buyer. If Tenant fails to execute and deliver such
statement within ten (10) days, it shall be deemed conclusively to have
acknowledged the accuracy of the matter set forth in Landlord's
statement.
22.2 Transfer
of Landlord's Interest.
In
the event of a sale or conveyance voluntarily or involuntarily by Landlord
of
Landlord's interest in the Leased Premises, Landlord shall be relieved from
and
after the date of such transfer of all liability accruing thereafter on the
part
of Landlord; provided any funds in the hands of Landlord at the time of transfer
in which Tenant has an interest shall be delivered to the successor of Landlord.
This Lease shall not be affected by any such sale and Tenant agrees to attorn
to
the transferee.
15
22.3 Captions.
Article
and paragraph captions are for convenience only and are not a part of this
Lease
and shall not be used for interpretation or construction of this
Lease.
22.4
Time
of Essence.
Time
is of the essence hereof.
22.5 Severability.
The
invalidity of any provision of this Lease, as determined by a court of competent
jurisdiction, shall in no way affect the validity of any other provision
hereof.
22.6 Modifications
for Mortgagee.
In
the event any lending institution with whom Landlord has negotiated or shall
hereafter negotiate for interim or permanent financing for the Building shall
require a modification of this Lease as a condition to providing such financing,
Landlord shall promptly provide written notice of the requirement to Tenant.
If
Tenant fails or refuses to make such modification within thirty (30) days
after
such notice, this Lease may be terminated by Landlord at any time prior to
the
date on which the Lease Term commences. Provided, however, Tenant shall not
be
required to make any modifications which materially alters its rights and
responsibilities under this Lease.
22.7 Entire
Agreement.
This
Lease, along with any exhibits or attachments hereto, constitutes the entire
agreement between the parties relative to the Leased Premises and there are
no
oral agreements or representations between the parties with respect to the
subject matter hereof. This Lease supersedes and cancels all prior agreements
and understandings with respect to the subject matter hereof. This Lease
may be
modified only in writing, signed by the parties in interest at the time of
the
modification.
22.8 Recording.
This
Lease shall not be recorded and any recordation shall be a breach under this
Lease.
22.9 Waiver.
The
waiver by Landlord of the breach of any provision herein shall not be deemed
a
waiver of such provision. Acceptance by Landlord of any performance by Tenant
after the time the same shall have become due shall not constitute a waiver
by
Landlord of the breach or default of any covenant, term or condition unless
otherwise expressly agreed to by Landlord in writing.
22.10 Binding
Effect; Choice of Law.
Subject
to any provisions hereof restricting assigning or subletting by Tenant and
subject to the provisions for the transfer of Landlord's interest, this Lease
shall bind the parties, their successors and assigns. This Lease shall be
governed by the laws of the State of Colorado.
22.11 Holding
Over.
If
Tenant remains in possession of all or any part of the Leased Premises after
the
expiration of the Lease Term hereof, with or without the consent of Landlord,
such tenancy shall be from month-to-month only, and not a renewal hereof
or an
extension for any further term, on the same terms and conditions as provided
herein, except only as to the Lease Term; provided, however, during such
period
as a tenant from month-to-month, Tenant shall pay Base Rent at double the
rate
payable for the month immediately preceding the date of termination of this
Lease and, in addition, Tenant shall reimburse Landlord for all damages
(consequential as well as direct) sustained by it by reason of Tenant's
occupying the Leased Premises past the termination date.
22.12 Entry
by Landlord.
Landlord
and its agents shall have the right to enter the Leased Premises at all
reasonable times for the purpose of examining or inspecting the same, to
supply
janitorial services and any other services to be provided by Landlord or
Tenant
hereunder, to show the same to prospective purchasers of the Building and
make
such alterations, repairs, improvements or additions to the Leased Premises
or
to the Building of which they are a part as Landlord may deem necessary or
desirable. Tenant shall permit Landlord to show the Leased Premises to
prospective tenants during the last six (6) months of the Lease Term hereof
or
any renewal thereof. If Tenant shall not be personally present to open and
permit an entry into the Leased Premises at any time when such entry by Landlord
is necessary or permitted hereunder, Landlord may enter by means of master
key
without liability to Tenant except for any failure to exercise due care for
Tenant's property, and without affecting this Lease. If, during the last
month
of the Lease Term hereof, Tenant shall have removed substantially all of
its
property from the Leased Premises, Landlord may immediately enter and alter,
renovate and redecorate the Leased Premises without elimination or abatement
of
rent or incurring liability to Tenant for any compensation.
22.13 Corporate
Authority.
If
Tenant is a corporation, each individual executing this Lease on behalf of
said
corporation represents and warrants he is duly authorized to execute and
deliver
this Lease on behalf of said corporation in accordance with a duly adopted
resolution of the Board of Directors of said corporation or in accordance
with
the by-laws of said corporation, and this Lease is binding upon said corporation
in accordance with its terms.
22.14 Notices.
All
notices or demands of every kind required or desired to be given by Landlord
or
Tenant hereunder shall be in writing and shall be deemed delivered forty-eight
(48) hours after depositing the notice or demand in the United States mail,
certified or registered, postage prepaid, addressed to the Landlord or Tenant
at
the address set forth in Sections 3 and 5, respectively, of the Summary, or
at such other place as such party may designate from time to time.
22.15 Real
Estate Broker.
Tenant
and Landlord represent to each other that Tenant and Landlord, respectively,
have dealt directly and only with the real estate brokers or agents specified
in
Section 12 of the Summary as brokers ("Brokers") in connection with this
Lease, and insofar as Tenant or Landlord respectively know, no other broker
negotiated or participated in the negotiations of this Lease, or submitted
or
showed the Leased Premises, or is entitled to any commission in connection
herewith. Tenant and Landlord each agree to indemnify and defend Landlord
and
Tenant, respectively, against and hold the other party harmless from any
and all
claims, demands, losses, liabilities, lawsuits, judgments, and costs and
expenses (including without limitation reasonable attorneys' fees) with respect
to any leasing commission or equivalent compensation alleged to be owing
on
account of Tenant's or Landlord’s, respectively, dealings with any real estate
broker or agent other than the Brokers.
16
22.16 Signage
Rights.
Throughout the term of this Lease, Tenant shall, at its expense, be entitled
to
install, modify, remove, expand and maintain: (i) any existing signs on any
sides of the Building and at any level of the Building; and (ii) any new
signs
on any sides of the Building and at any level of the Building. No other external
signage shall appear on the Building. In addition, Tenant shall have the
right
to name the Building and can use that name throughout the term of the Lease.
All
such Tenant signage shall be designed, fabricated, constructed, installed,
maintained, and removed at Tenant's sole cost and expense. Tenant shall be
responsible for removing such external signage within ninety (90) days from
the
date of termination of this Lease. Such signage rights shall be personal
to
Tenant. Landlord shall be obligated to place a sign, at Landlord's expense,
used
to identify Tenant's business names, in the exterior doorway or walls of
the
Premises.
Landlord shall provide space on the Building directory on the ground floor
lobby
of the Building for a listing identifying Tenant's name and suite number.
22.17 Asbestos
Disclosure.
Landlord
has advised Tenant that there is asbestos-containing material ("ACM") in
the
Building which consists of non-friable floor tile, mastic and fireproofing.
Such
ACM exists behind hard barriers, thus, it will not be accessible to tenants
and
other occupants of the Building. Attached hereto as Exhibit F
is a Notice Concerning Asbestos in the Building. Tenant acknowledges that
any
construction, remodeling, replacement, maintenance, repair, alterations or
other
work at the Building, including but not limited to, major alterations, drilling
or boring holes, installing electrical, telecommunications or computer lines,
sanding floors and removing ceiling tiles could disturb the remaining ACM
and
possibly release asbestos fibers into the air. Tenant shall not cause or
permit
any such work in or on the Building (including, without limitation, any
alterations, additions or other work to the Leased Premises pursuant to the
provisions of Article 9 of this Lease) without the prior written consent of
Landlord, and the granting of Landlord’s consent shall be conditioned upon,
among other things, Landlord’s approval of the contractor who Tenant causes or
permits to perform such work and Landlord’s receipt of an Asbestos Notification
and Disturbance Agreement executed by such Landlord-approved contractor in
the
form attached hereto as Exhibit G.
IN
WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the day
and
year first above written.
|
TENANT
:
|
UNITED
WESTERN BANK,
|
|
a
federally chartered savings bank
|
|
|
By:
/s/Xxxxxxx X. Xxxxxx
|
|
|
Name:
Xxxxxxx X. Xxxxxx
|
|
|
Title:
Vice Chairman
|
|
|
LANDLORD:
|
000
00XX
XXXXXX OPERATING LLC,
|
|
a
Delaware limited liability company doing business in Colorado
as 000
00xx
Xxxxxx Xxxxxxxx Operating Company
|
|
|
By:
/s/Xxxxxxx
Xxxxx
|
|
|
Xxxxxxx
Xxxxx, Manager
|
17
SUMMARY
OF BASIC LEASE INFORMATION
This
Summary of Basic Lease Information (the "Summary") is hereby incorporated
by
reference into and made a part of the attached Office Lease. Each reference
in
the Office Lease to any term of this Summary shall have the meaning as set
forth
in this Summary for such term. In the event of a conflict between the terms
of
this Summary and the Office Lease, the terms of the Office Lease shall prevail.
Any initially capitalized terms used herein and not otherwise defined herein
shall have the meaning as set forth in the Office Lease.
|
TERMS
OF LEASE
(References
are to the Office Lease)
|
DESCRIPTION
|
|
1. Dated
as of:
|
October
1, 2006
|
|
2. Landlord:
|
000
00xx
Xxxxxx Operating LLC, a Delaware limited liability company doing
business
in Colorado as 000 00xx
Xxxxxx Xxxxxxxx Operating Company
|
|
3. Address
of Landlord:
|
c/o
Xxxxxxxxx Xxxx Company, 000 00xx
Xxxxxx, Xxxxx 0000, Xxxxxx, XX 00000, Attn: Xxxx
Xxxxxxxxx
|
|
4. Tenant:
|
United
Western Bank, a federally chartered savings bank
|
|
5. Address
of Tenant:
|
000
00xx
Xxxxxx
Xxxxx
0000
Xxxxxx,
XX 00000
Attention:
Xxxxxxx Xxxxxx
|
|
6. Leased
Premises (Article 1):
|
|
|
6.1 Leased
Premises:
|
Suites
100, 200, 500, 925,1550, 1950 and 2250, containing approximately
35,340
square feet of Rentable Area located within the Building as set
forth in
Exhibit B
attached hereto.
|
|
6.2 Building:
|
The
Leased Premises are located in the "Building" whose address is
000 00xx
Xxxxxx, Xxxxxx, Xxxxxxxx 00000.
|
|
7. Term
(Article 2):
|
|
|
7.1 Lease
Term:
|
Ten
(10) years.
|
|
7.2 Commencement
Date:
|
October
1, 2006
|
|
7.3 Expiration
Date:
|
The
last day of the month which is ten (10) years after the Commencement
Date.
|
|
8. Base
Rent (Article 3):
|
|
YEAR
OF LEASE TERM
|
ANNUAL
BASE RENT
|
MONTHLY
INSTALLMENT OF BASE RENT
|
ANNUAL
BASE RENTAL PER SQUARE FOOT OF RENTABLE AREA OF THE LEASED
PREMISES
|
|||
|
1
|
$742,140.00
|
$61,845.00
|
$21.00
|
|||
|
2
|
$768,645.00
|
$64,053.75
|
$21.75
|
|||
|
3
|
$795,150.00
|
$66,262.50
|
$22.50
|
|||
|
4
|
$821,655.00
|
$68,471.25
|
$23.25
|
|||
|
5
|
$848,160.00
|
$70,680.00
|
$24.00
|
|||
|
6
|
$874,665.00
|
$72,888.75
|
$24.75
|
|||
|
7
|
$901,170.00
|
$75,097.50
|
$25.50
|
|||
|
8
|
$927,675.00
|
$77,306.25
|
$26.25
|
|||
|
9
|
$954,180.00
|
$79,515.00
|
$27.00
|
|||
|
10
|
$980,685.00
|
$81,723.75
|
$27.75
|
|
9. Tenant's
Share (Section 6.1):
|
19.35%
(35,340 square feet of Rentable Area within the Leased Premises/182,623
square feet of Rentable Area within the Building).
|
|
10. Base
Year (Section 6.2.1):
|
Calendar
year 2006.
|
|
11. Brokers
(Section 22.15):
|
None.
|
|
12. Option
to Extend (Extension Option Rider):
|
Tenant
has two (2) option(s) to extend the Lease Term for a period of
five (5)
years each.
|
