EXHIBIT 10.3
OFFICE BUILDING LEASE
THE XXXXXX BUILDING
0000 XXXX XXXXXXXX XXXXXX
XXXXXXXXX, XXXXXXXX
BETWEEN
HANOVER RESOURCES INC.
AND
COLORADO BUSINESS BANK, N.A.
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TABLE OF CONTENTS
PARAGRAPH PAGE
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1. PREMISES 1
2. TERM 1
3. RENT 1
4. SECURITY DEPOSIT 2
5. RENT ADJUSTMENT 2
6. CHARACTER OF OCCUPANCY 6
7. SERVICES AND UTILITIES 7
8. QUIET ENJOYMENT 8
9. MAINTENANCE AND REPAIR 8
10. ALTERATIONS AND ADDITIONS 9
11. ENTRY BY LANDLORD 10
12. MECHANIC'S LIENS 10
13. DAMAGE TO PROPERTY, INJURY TO PERSONS 11
14. INSURANCE 11
15. DAMAGE OR DESTRUCTION TO BUILDING 13
16. CONDEMNATION 13
17. ASSIGNMENT AND SUBLETTING 16
18. ESTOPPEL CERTIFICATE 17
19. XXXXXXX 00
00. XXXXXXXX'X XXXX 00
00. UNIFORM COMMERCIAL CODE 21
22. COMPLETION OF PREMISES 21
23. REMOVAL OF TENANT'S PROPERTY 22
24. HOLDING OVER 22
25. PARKING AND COMMON AREAS 22
26. SURRENDER AND NOTICE 24
27. ACCEPTANCE OF PREMISES BY TENANT 24
28. SUBORDINATION AND ATTORNMENT 24
29. PAYMENTS AFTER TERMINATION 25
30. AUTHORITIES FOR ACTION AND NOTICE 25
31. LIABILITY OF LANDLORD 26
32. BROKERAGE 26
33. TAXES 26
34. LANDLORD'S RIGHT TO SUBSTITUTE PREMISES 27
35. RIGHTS RESERVED TO LANDLORD 27
36. FORCE MAJEURE CLAUSE 28
37. SIGNAGE 28
38. ATTORNEYS' FEES 28
39. HAZARDOUS MATERIALS 28
40. BANKRUPTCY OR INSOLVENCY 29
41. MISCELLANEOUS 30
EXHIBITS:
A - PREMISES
B - LEGAL DESCRIPTION
C - ESTOPPEL AND COMMENCEMENT DATE CERTIFICATE
D - WORK LETTER AGREEMENT
E - PARKING SCHEDULE
F - RULES AND REGULATIONS
G - [INTENTIONALLY DELETED]
H - LEASE ADDENDUM
OFFICE BUILDING LEASE
THIS LEASE is made this _____ day of _________, 19__ between HANOVER RESOURCES
INC., a COLORADO CORPORATION ("Landlord") and COLORADO BUSINESS BANK, N.A., a
COLORADO CORPORATION ("Tenant").
1. PREMISES: Landlord hereby leases to Tenant those certain premises designated
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on the Plans attached hereto as Exhibit A and incorporated herein by this
reference (the "Premises"), consisting of a total of approximately 3,841
square feet of space (Rentable Area) on the FIRST (1st) floor(s), suite(s)
150 of the building known as THE XXXXXX BUILDING located at 0000 XXXX
XXXXXXXX XXXXXX, XXXXXXXXX, XXXXXXXX 00000 (hereinafter the "Building"),
located on the real property more particularly described on Exhibit B
attached hereto and incorporated herein by this reference, together with a
non-exclusive right, subject to the provisions hereof, to use all
appurtenances thereunto, including, but not limited to, those areas
designated by Landlord for use by tenants of the Building (the Building,
real property on which the same is situated, other areas and appurtenances
are hereinafter collectively sometimes called the "Building Complex"). For
purposes of this Lease, "Rentable Area" shall mean a measure of area
expressed in square feet computed by measuring the distance between the
walls which enclose the floor to the inside finished surface of the dominant
portion of the permanent outer building walls, exclusive of any major
vertical penetrations of the floor and inclusive of columns and projections
necessary to the building. Major vertical penetrations shall mean stairs,
elevator shafts, flues, pipe shafts, vertical ducts and the like, and their
enclosing walls, which serve more than one floor of the building, but shall
no: include stairs, dumb-waiters, lifts, and the like, exclusively serving a
tenant occupying the leased premises. This Lease is subject to the terms,
covenants and conditions set forth herein and Tenant and Landlord each
covenant as a material part of the consideration for this Lease to keep and
perform each and all of said terms, covenants and conditions to be kept and
performed by them.
2. TERM:
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(a) The term of this Lease shall be for FIVE (5) years (the "Primary
Lease Term") commencing at 12:01 a.m. on SEPTEMBER 1, 1998 (the
"Commencement Date") and terminating at 12:00 midnight on AUGUST 31,
2003 (the "Termination Date"), unless sooner terminated pursuant
to the terms hereof. "In the event the Premises are not "Ready for
Occupancy" as such term is defined in Paragraph 22 hereof, the
Commencement Date shall mean and refer to the date the Premises are
Ready for Occupancy.
(b) If, as a result of the postponement or acceleration of the
Commencement Date, the term would begin other than on the first day
of the month, Tenant shall pay proportionate rent at the same monthly
rate set forth herein (also in advance) for such partial month and
all other terms and conditions of this Lease shall be in force and
effect during such partial month, anti the end of the term hereof
shall be adjusted to a date which is the last day of the month FIVE
(5) years after the Commencement Date. Tenant agrees to execute and
deliver to Landlord, in form substantially similar to that which is
attached hereto as Exhibit C, an Estoppel and Commencement Date
Certificate, within ten (10) days of the date the term commences,
certifying as to the actual commencement and termination dates of the
term, the rent commencement date, if different, and such other
matters as may be required by Landlord.
3. RENT: Tenant shall pay to Landlord, rent for the Premises ("Base Rent") as
---- follows:
(a) During the FIRST (1st) through TWENTY FOURTH (24th) months of the
Primary Lease Term, the sum of NINETY SEVEN THOUSAND NINE HUNDRED
FORTY FIVE AND FIFTY SIX ONE-HUNDREDTHS Dollars ($97,945.56) per
year, payable in equal monthly installments EIGHT THOUSAND ONE
HUNDRED SIXTY TWO AND THIRTEEN ONE-HUNDREDTHS Dollars ($8,162.13);
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(b) During the TWENTY FIFTH (25th) through THIRTY SIXTH (36th) months of
the Primary Lease Term, the sum of ONE HUNDRED ONE THOUSAND SEVEN
HUNDRED EIGHTY SIX AND FIFTY TWO ONE-HUNDREDTHS Dollars ($101,786.52)
per year, payable in equal monthly installments of EIGHT THOUSAND FOUR
HUNDRED EIGHTY TWO AND TWENTY ONE ONE-HUNDREDTHS Dollars ($8,482.21);
(c) During the THIRTY SEVENTH (37th) through SIXTIETH (60th) months of the
Primary Lease Term, the sum of ONE HUNDRED FIVE THOUSAND SIX HUNDRED
TWENTY SEVEN AND SIXTY ONE-HUNDREDTHS Dollars ($105,627.60) per year,
payable in equal monthly installments of EIGHT THOUSAND EIGHT HUNDRED
TWO AND THIRTY ONE-HUNDREDTHS Dollars ($8,802.30);
All installments of Base Rent shall be payable in advance, on the first (1st)
day of each calendar month during the term hereof. Rent for the first and last
months of the term hereof shall be prorated based upon the number of days during
each of said months that the Lease term was in effect. One monthly installment
of Base Rent shall be due and payable on the date of execution of this Lease by
Tenant. All Base Rent shall be paid without notice, demand, deduction or offset,
at the office of Landlord or to such other person or at such other place as
Landlord may designate in writing. Tenant shall pay to Landlord as "Additional
Rent' all other sums due under this Lease.
5. RENT ADJUSTMENT:
(a) The following terms shall have the following meanings with respect to
the provisions of this Paragraph 5:
(1) "Base Operating Expenses" shall mean an amount equal to THOSE
COLLECTIVE EXPENSES FOR THE CALENDAR YEAR 1998, as hereinafter
defined. In the event that the actual Operating Expenses during
any year are less than the Base Operating Expenses. Tenant shall
not be entitled to any refund, credit or other from of
reimbursement.
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(2) "Building Rentable Area" shall mean all rentable space available for lease
in the Building. If there is a significant change in the aggregate Building
Rentable Area, of a permanent nature, as a result of an addition to the
Building, partial destruction thereof or similar circumstance, Landlord
shall determine and make an appropriate adjustment to the provisions
herein.
(3) "Tenant's Pro Rata Share" shall mean a fraction, the numerator of which is
the Rentable Area of the Premises (i.e., 3,841 square feet) and the
denominator of which is the Building Rentable Area (i.e., 182,752 square
feet), and is equal to 2.101%. At such time, if ever, any space is added to
or subtracted from the Premises pursuant to the terms of this Lease,
tenants Pro Rata Share shall be increased or decreased according
(4) "Operating Expenses" shall mean:
A. ALL REASONABLE AND CUSTOMARY operating expenses of any kind or nature
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which are incurred with respect to the management, operation and
maintenance of the Building Complex and shall include, but not be
limited to:
(i) Costs of supplies, including but not limited to the cost of
"relamping" all tenant lighting as the same may be required from time
to time;
(ii) Costs incurred in connection with obtaining and providing
energy for the Building Complex, including but not limited to costs of
propane, butane, natural gas, steam, electricity, solar energy and
fuel oils, coal or any other energy sources as well as costs for
heating, ventilation, and air conditioning services ("HVAC");
(iii) Costs of water and sanitary and storm drainage services;
(iv) Costs of janitorial and security services, if any;
(v) Costs of general maintenance and repairs, including, without
limitation, costs of repairing and maintaining plumbing and electrical
systems furnished by Landlord, costs of painting and cleaning, costs
under HVAC and other mechanical maintenance contracts; and costs of
repairs and replacements of equipment used in connection with such
maintenance and repair work and the costs of rental of such equipment;
(vi) Costs of maintenance and replacement of landscaping: and costs
of maintenance, repair, striping and repaving of parking areas, common
areas, plazas and other areas used by tenants of the Building Complex,
including trash and snow removal;
(vii) Any REASONABLE FEES, costs or assessments imposed by any
property owners association or which Landlord must pay for the
Building or Building Complex pursuant to any present or future
covenants, agreements or similar restrictions or agreements affecting
the Building or Building Complex;
(viii) Insurance premiums, including fire and all-risk coverage,
together with loss of rent endorsement; public liability insurance;
and any other insurance carried by Landlord on the Building Complex or
any component parts thereof,
(ix) Labor costs incurred in management, operation or maintenance;
of Building Complex, including wages and other payments, costs to
Landlord of workmen's compensation and disability insurance, payroll
taxes, welfare fringe benefits and all REASONABLE legal fees and other
costs or expenses incurred in resolving any labor disputes;
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(x) Professional building management fees; CONSISTENT WITH A FIRST
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CLASS OFFICE BUILDING
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(xi) Legal, accounting, inspection and other consultation fees
(including, without limitation, fees charged by consultants retained
by Landlord for services that are designed to produce a reduction in
Operating Expenses or reasonably to improve the operation, maintenance
or state of repair of the Building Complex) incurred for the normal
prudent operation of the Building Complex and a general overhead and
administrative charge equal to two percent (2%) of all Operating
Expenses;
(xii) The costs of capital improvements and structural alterations,
repairs and replacements made in or to the Building
Complex or the cost of any machinery or equipment
installed in the Building Complex in order to conform to any
applicable laws, ordinances, rules, regulations or
orders of any governmental or quasi governmental authority having
jurisdiction over the Building Complex (herein, "Required Capital
Improvement") STARTING AFTER THE COMMENCEMENT DATE OF THE LEASE; and
the costs of any capital improvements and structural repairs and
replacements designed primarily to reduce Operating Expenses (herein,
"Cost Savings Improvements"). The expenditures for Required Capital
Improvements and Cost Savings Improvements shall be amortized over the
useful life ACCORDING TO G.A.P. of such capital improvement or
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structural repair or replacement (as determined by Landlord's
accountants); UTILIZING GENERALLY ACCEPTED ACCOUNTING PRINCIPLES.
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(xiii) "Real Estate Taxes" including all real property taxes and
assessments levied against the Building Complex by any governmental or
quasi-governmental authority, including any taxes, assessments,
surcharges, or service or other fees of a nature not presently in
effect which shall hereafter be levied on the Building Complex as a
result of the use, ownership or operation of the Building Complex or
for any other reason, whether in lieu of or in addition to any current
real estate taxes and assessments; provided, however, that in no event
shall the term "Taxes and Assessments", as used herein, include any
federal, state or local income taxes levied or assessed on Landlord,
unless such taxes are a specific substitute for real property taxes;
such term shall, however, include gross taxes on rentals and expenses
incurred by Landlord for tax consultants and in contesting the amount
or validity of any such Taxes or Assessments (all of the foregoing are
collectively referred to herein as "Taxes"). "Assessments" shall
include, without limitation, any and all so-called special
assessments, license tax, business license fee, business license tax,
commercial rental tax, levy, charge or tax imposed by any authority
having the direct power to tax, including any city, county, state or
federal government, or any school, agricultural, lighting, water,
drainage or other improvement or special district thereof, against the
Premises, the Building or the Building Complex, or against any legal
or equitable interest of Landlord therein. For the purposes of this
Lease, any special assessment shall be deemed payable in such number
of installments as is permitted by law, whether or not actually so
paid. If the Building Complex has not been fully assessed as a
completed project, for the purposes of computing the Real Estate Taxes
for any adjustment required herein, the same shall be increased by
Landlord's Accountants, in accordance with their estimate of what the
assessment will be, upon full completion of the Building Complex,
including installation of all tenant finish items; arid
(xiv) Any other expense which under generally accepted accounting
principles would be considered a normal maintenance or operating
expense.
If Landlord selects an accrual accounting basis for calculating
Operating Expenses, Operating Expenses shall be deemed to have been
paid when such expenses have accrued in accordance with generally
accepted accounting principles.
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B. Operating Expenses shall expressly exclude Landlord's income
taxes; leasing commissions, advertising and promotional expenses:
interest on debt or amortization payments on any mortgages or
deeds of trust: and costs of repairs or other work occasioned by
fire, windstorm or other casualty to tile extent of insurance
proceeds received AND ANYTHING OF A CAPITAL NATURE EXCEPTING
PARAGRAPH 4A(xii).
(b) It is hereby agreed that commencing January 1 of the calendar year
following the Commencement Date, Tenant shall pay to Landlord as
Additional Rent during the balance of the term hereof an estimate of
Tenant's Pro Rata Share of Operating Expenses for the calendar year in
excess of the Base Operating Expenses as reasonably estimated by
Landlord, payable monthly, at the rate of one twelfth (1/12) thereof,
on the same date and at the same place Base Rent is payable, with an
adjustment to be made between the parties at a later date as
hereinafter provided. Landlord shall deliver to Tenant, as soon as
practicable following the end of any calendar year, an estimate of the
Operating Expenses for the new calendar year (the "Annual Estimate").
Until receipt of the Annual Estimate, Tenant shall continue to pay its
monthly Tenant's Pro Rata Share of Operating Expenses in excess of
Base Operating Expenses based upon the estimate for the preceding
calendar year. To the extent that the Annual Estimate reflects an
estimate of Tenant's Pro Rata Share of Operating Expenses in excess of
Base Operating Expenses for the new calendar year greater than the
amount actually paid to the date of receipt of the Annual Estimate for
the new calendar year, Tenant shall pay such amount to Landlord within
thirty (30) days of receipt of the Annual Estimate. Upon receipt of
the Annual Estimate, Tenant shall thereafter pay the amount of its
monthly Tenant's Pro Rata Share of Operating Expenses in excess of
Base Operating Expenses as set forth in the Annual Estimate. As soon
as practicable following the end of any calendar year, Landlord shall
submit to Tenant a statement in reasonable detail describing the
computations of the Operating Expenses setting forth the exact amount
of Tenant's Pro Rata Share of Operating Expenses in excess of Base
Operating Expenses for the calendar year just completed (the
"Statement"), and the difference, if any, between the actual Tenant's
Pro Rata Share of Operating Expenses in excess of Base Operating
Expenses for the calendar year just completed and the estimated amount
of Tenant's Pro Rata Share of Operating Expenses in excess of Base
Operating Expenses paid by Tenant to Landlord. To the extent that the
actual Tenant's Pro Rata Share of Operating Expenses in excess of Base
Operating Expenses for the period covered by the Statement is higher
than the estimated Tenant's Pro Rata Share of Operating Expenses in
excess of Base Operating Expenses-which Tenant previously paid during
the calendar year just completed, Tenant shall also pay to Landlord
such balance within thirty (30) days following receipt of the
Statement from Landlord. To the extent that the actual Tenant's Pro
Rata Share of Operating Expenses in excess of Base Operating Expenses
for the period covered by the Statement is less than the estimated
Tenant's Pro Rata Share of Operating Expenses which Tenant previously
paid during the calendar year just completed, Landlord shall credit
the excess against any sums then owing or next becoming due from
Tenant under the Lease.
(c) If the Lease term hereunder covers a period of less than a full
calendar year during the first or last calendar years of the term
hereof, Tenants Pro Rata Share of Operating Expenses in excess of Base
Operating Expenses for such partial year shall be calculated by
proportionately reducing the Base Operating Expenses to reflect the
number of months in such year during which Tenant leased the Premises
(the "Adjusted Base Operating Expenses"). The Adjusted Base Operating
Expenses shall then be compared with the actual Operating Expenses for
said partial year to determine the amount, if any, of any increases in
the actual Operating Expenses for such partial year over the Adjusted
Base Operating Expenses. Tenant shall pay Tenant's Pro Rata Share of
any such increases within ten (10) days following receipt of notice
thereof.
(d) Tenant shall have the right at its own expense and at a reasonable
time (after written notice to Landlord) within SIXTY (60) DAYS after
receipt of the Statement to audit Landlord's books RELEVANT TO THE
ADDITIONAL RENT due under this Paragraph 5, such audit to be performed
by a nationally recognized accounting firm reasonably acceptable to
Landlord. Tenant hereby agrees that it shall not have the right to
personally conduct such audit. As a condition precedent to Tenant's
exercise of its right to audit Landlord's books, Tenant shall be
required to pay any amounts reflected as
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owing on the Statement within the time permitted herein (which amounts
shall be adjusted, if applicable, upon completion of the audit
process). In the event Tenant does not audit Landlord's books and
deliver the results of such audit to Landlord within said 60 DAY
PERIOD, THE TERMS AND amounts set forth in the Statement shall be
deemed conclusive and final and Tenant shall have no further right to
adjustment. In the event Tenant's examination reveals that an error
has been made in Landlord's determination of Tenants Pro Rata Share of
Operating Expenses and Landlord agrees with such determination, then
the amount of such adjustment shall be payable by Landlord or Tenant,
to the other party as the case maybe. In the event Tenant's
examination reveals an error has been made in Landlord's determination
of Tenant's Pro Rata Share of Operating Expenses, and Landlord
disagrees with the results thereof, Landlord shall have SIXTY (60)
days to obtain an audit from an accountant of its choice to determine
Tenants Pro Rata Share of Operating Expenses. In the event Landlord's
accountant and Tenant's accountant are unable to reconcile their
audits, both accountants shall mutually agree upon a third accountant,
whose determination of Tenant's Pro Rata Share of Operating Expenses
shall be conclusive. In the event the amount of error by Landlord is
determined to be ten percent (10%) or more, the reasonable costs of
the three audits made pursuant to this subparagraph shall be paid by
Landlord. In the event the amount of error by Landlord is determined
to be less than ten percent (10%), the reasonable costs of the three
audits made pursuant to this subparagraph shall be paid by Tenant.
(e) Landlord's failure during the Lease term to prepare and deliver any
statements, estimates or bills, or Landlord's failure to make a demand
under this Paragraph or under any other provision of this Lease shall
not in any way be deemed to be a waiver of, or cause Landlord to
forfeit or surrender its rights to collect any items of Additional
Rent which may have become due pursuant to this Paragraph during the
term of this Lease. Tenant's liability for all Additional Rent due
under this Paragraph 5 shall survive the expiration or earlier
termination of this Lease.
6. CHARACTER OF OCCUPANCY:
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(a) The Premises are to be used for THE general offices OF A PRIVATE
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BANKING CONCERN not inconsistent with the character and type of
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tenancy found in comparable first-class office buildings in the Denver
Metropolitan area and for no other purpose without the prior written
consent of Landlord. Nothing contained in this Lease shall be deemed
to give Tenant any exclusive right to such use in the Building or
shall be deemed to be a warranty by Landlord that the Premises are
suitable for a particular use. During the term hereof, Tenant shall be
responsible for compliance with all present or future laws
applicable to the use and occupancy of the Premises. Tenant shall
procure, at its sole expense, all permits or licenses required for the
transaction of business at the Premises.
(b) Tenant shall not permit the Premises nor any part thereof to be used
in any manner, nor anything to be done therein, brought into, or kept
therein, which would in any way (i) make void or voidable any fire or
liability insurance policy then in force with respect to the Building
Complex, (ii) make unobtainable from reputable insurance companies
authorized to do business in the state where the Premises are located
any fire insurance with extended coverage, or liability, elevator,
boiler or other insurance required to be furnished by Landlord under
the terms of any lease or mortgage to which this Lease is subordinate,
at standard rates, (iii) cause, or in Landlord's reasonable opinion be
likely to cause, physical damage to the Building Complex or any part
thereof, (iv) constitute a public or private nuisance, (v) impair, in
the opinion of Landlord, the appearance, character or reputation of
the Building Complex, (vi) discharge objectionable fumes, vapors or
odors into the Building air conditioning system or into the Building
flues or vents not designed to receive them or otherwise in such
manner as may unreasonably offend other occupants of the Building
(vii) impair or interfere with any of the Building services or impair
or interfere with or tend to impair or interfere with the use of any
of the other areas of the Building by, or occasion discomfort, or
annoyance to Landlord or any of the other tenants or occupants of the
Building Complex, any such impairment or interference to be based upon
the judgment of Landlord, (viii) increase on an ongoing periodic basis
the pedestrian traffic in and out of the Premises or the Building
above an ordinary level, OF A PRIVATE BANKING CONCERN (ix) create
waste in, on or around the Premises, Building, or Building Complex, or
(x) make any noise
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or set up any vibration which will disturb other tenants, except in
the course of permitted repairs or alterations at times permitted by
Landlord.
(c) Tenant shall not KNOWINGLY use the Premises nor permit anything to be
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done in or about the Premises or Building Complex which will in any
way conflict with any law, statute, ordinance, protective covenants,
conditions or restrictions affecting the Building Complex or
governmental or quasi-governmental rules or regulations now in force
or which may hereafter be enacted or promulgated. Tenant shall give
written notice within two (2) days from receipt thereof to Landlord of
any notice it receives of the violation of any law or requirement of
any public authority with respect to the Premises or the use or
occupation thereof. Landlord shall give prompt WRITTEN notice to
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Tenant of any notice it receives relative to the violation by Tenant
of any law or requirement of any public authority with respect to the
Premises or the use or occupation thereof.
7. SERVICES AND UTILITIES:
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(a) Landlord agrees, without charge except as provided herein, and in
accordance with standards from time to time prevailing for first-class
office buildings in the Denver Metropolitan area, to furnish water to
the Building for use in lavatories and drinking fountains (and to the
Premises if the plans for the Premises so provide); during ordinary
business hours to furnish such heated or cooled air to the Premises
as may, in the judgment of Landlord, be reasonably required for the
comfortable use and occupancy of the Premises provided that Tenant
complies with the recommendations of Landlord's engineer or other duly
authorized representative, regarding occupancy and use of the
Premises; to provide janitorial services for the Premises (including
such interior and exterior window washing as may be required), such
janitorial services to be provided five days a week, except for
"Holidays" as herein defined; during ordinary business hours to cause
electric current to be supplied for lighting the Premises and public
halls; and to furnish such snow removal services to the Building
Complex as may, in the judgment of Landlord, be reasonably required
for safe access to the Building Complex.
(b) Landlord shall provide electricity for normal office purposes
including but not limited to fluorescent and incandescent lighting,
including task and task ambient lighting systems and for normal office
equipment including but not limited to duplicating (reproduction)
machines, communications and audio visual equipment, vending machines,
portable computers (provided they do not require any additional
voltage or special electrical requirements) executive kitchen
equipment and internal communication systems (which may include piped-
in music). To the extent that electric current is utilized in excess
of the amounts indicated above, Tenant's rent shall be increased from
time to time by Landlord in such amounts to cover the cost of
providing such increased use. Landlord shall have the right, if it
determines based on its own judgment that Tenant is using electric
current for purposes other than those described above or for other
than normal office use, to require Tenant to install a check meter to
determine the amount which Tenant is utilizing. The cost of such
excess usage, and check meter, including but not limited to
monitoring, installation and repair thereof, shall be paid by Tenant.
(c) If Tenant requires water in excess of that usually furnished or
supplied for use in the Premises as general office space, Tenant shall
first procure the consent of Landlord for the use thereof. Tenant
agrees to pay to Landlord such amounts as Landlord determines are
necessary to cover the costs of such increased use of water,
including, but not limited to, the cost of installation, monitoring,
maintenance and repair of any check meter or other instrument
necessary to measure the use of additional water.
(d) Tenant agrees that Landlord shall not be liable for failure to supply
any heating, air conditioning, elevator, electrical, janitorial,
lighting or other services during any period when Landlord uses
reasonable diligence to supply such services, or during any period
Landlord is required to reduce or curtail such services pursuant to
any applicable laws, rules or regulations, now or hereafter in force
or effect, it being understood and agreed to by Tenant that Landlord
may discontinue, reduce or curtail such services, or any of them at
such times as it may be necessary by reason of
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accident, unavailability of employees, repairs, alterations,
improvements, strikes, lockouts, riots, acts of God, application of
applicable laws, statutes, rules and regulations, or due to any other
happening beyond the reasonable control of Landlord. In the event of
any such interruption, reduction or discontinuance of services,
Landlord shall not be liable for damages to persons or property as a
result thereof, nor shall the occurrence of any such event in any way
be construed as an eviction of Tenant or cause or permit an abatement,
reduction or setoff of rent, or operate to release Tenant from any of
Tenant's obligations hereunder.
(e) Whenever heat generating machines or equipment are used by Tenant in
the Premises which affect the temperature otherwise maintained by the
air conditioning system, Landlord reserves the right to install
supplementary air conditioning units in the Premises in the event
Landlord's independent consulting engineer determines same are
necessary as a result of Tenant's use of lights or equipment which
generate heat loads in excess of those for which the HVAC system is
designed and the cost therefor, including the cost of installation,
operation and maintenance thereof, shall be paid by Tenant to Landlord
upon demand by Landlord.
(f) In the event that Tenant has any special or additional electrical or
mechanical requirements related to its use of the Premises, any such
electrical or mechanical equipment must be located within the
Premises. Such electrical or mechanical requirements, for the purposes
hereof, shall include by way of example, but not limitation, any
internal telephone system. The foregoing shall in no way be construed
as granting to Tenant additional rights to use any such special or
additional electrical or mechanical equipment in its Premises without
the prior written consent of Landlord. Any additional cost or expense
related to or resulting from such electrical or mechanical
requirements shall be the sole obligation of Tenant.
(g) If Tenant requires AND REQUESTS HVAC service beyond ordinary
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business hours (hereafter "After Hours Usage"), such service must be
requested from the Building manager at least twenty-four (24) hours
prior thereto. After Hours Usage can only be supplied for the Building
as a whole, for a minimum of two (2) hour periods, with increments of
one (1) hour thereafter. Tenant shall reimburse Landlord, as
Additional Rent, at the rate of $150.00 per hour.
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8. QUIET ENJOYMENT: Subject to the provisions of this Lease, Landlord
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covenants that Tenant on paying the rent and performing the covenants, of
this Lease on its part to be performed shall and may peacefully and quietly
have, hold and enjoy the Premises for the term of this Lease. Landlord
shall not be responsible for the acts or omissions of any other tenant or
third party which may interfere with Tenant's use and enjoyment of the
Premises. In the event of any transfer or transfers of Landlord's interest
in the Premises or in the real property of which the Premises are a part,
other than a transfer for security purposes only, the transferor shall be
automatically relieved of any and all obligations and liabilities on the
part of Landlord accruing from and after the date of such transfer.
9. MAINTENANCE AND REPAIRS:
------------------------
(a) Notwithstanding any other provisions of this Lease, Landlord shall
repair and maintain the structural portions of the Building,
including the elevators, plumbing, air conditioning, heating and
electrical systems installed or furnished by Landlord, unless such
maintenance and repairs are caused in part or in whole by the act,
neglect, fault or omission of Tenant, its agents, servants, employees,
licensees or invitees, in which case Tenant shall pay to Landlord, on
demand, the cost of such maintenance and repairs less the amount of
any insurance proceeds received by Landlord on account thereof, if
applicable. Landlord shall also maintain and keep in good order and
repair the Building roof; the curtain wall, including all glass
connections at the perimeter of the Building; all exterior doors,
including any exterior plate glass within the Building; the Building
ventilating systems; elevators and escalators, if any; Building
telephone and electrical closets; public portions of the Building or
Building Complex, including but not limited to any balconies,
landscaping, walkways, and upper floor lobbies and corridors, and
interior portions of the Building above and below grade which are not
covered by leases.
8
(b) Tenant, at Tenant's sole cost and expense, except for services
furnished by Landlord pursuant to Paragraph 7 hereof, shall maintain,
in good order, condition and repair, NORMAL WEAR AND TEAR EXPECTED,
-----------------------------
the Premises, including the interior surfaces of the ceilings if
damaged or discolored due in whole or in part to the act, neglect,
omission or fault of Tenant), walls and floors, all doors, interior
glass partitions or glass surfaces (not exterior windows) and pipes,
electrical wiring, switches, fixtures and other special items, subject
to the provisions of Paragraph 15 hereof. In the event Tenant fails to
so maintain the Premises in good order, condition and repair, Landlord
shall give Tenant notice to do such acts as are reasonably required to
maintain the Premises. In the event Tenant fails to promptly commence
such work and diligently pursue it to completion, then Landlord shall
have the right, but shall not be required, to do such acts and expend
such funds at the expense of Tenant as are reasonably required to
perform such work. The funds so expended plus twenty percent (20%) of
such amounts as an overhead/administrative charge shall be due and
payable by Tenant within ten (10) days after receipt of Landlord's
invoice therefor. Landlord shall have no liability to Tenant for any
damage, inconvenience or interference with the use of the Premises by
Tenant as a result of performing any such work.
10. ALTERATIONS AND ADDITIONS:
-------------------------
(a) Tenant shall make no alterations, additions or improvements to the
Premises or any part thereof without obtaining the prior written
consent of Landlord, which consent shall not be unreasonably withheld
OR DELAYED. Tenant shall submit any such request to Landlord at least
----------
thirty (30) days prior to the proposed commencement date of such work.
Landlord may impose, as a condition to such consent, and at Tenant's
sole cost, such requirements as Landlord may deem necessary in its
judgment, including without limitation, the manner in which the work
is done, a right of approval of the contractor by whom the work is to
be performed and the times during which the work is to be
accomplished, approval of all plans and specifications and the
procurement of all licenses and permits. Landlord shall be entitled to
post notices on and about the Premises with respect to Landlord's non-
liability for mechanics' liens and Tenant shall not permit such
notices to be defaced or removed. Tenant further agrees not to connect
any apparatus, machinery or device to the Building systems, including
electric wires, water pipes, fire safety, heating and mechanical
systems, without the prior written consent of Landlord. Tenant shall
give Landlord at least ten (10) days prior written notice of the
expected commencement date of any work related to the Premises so that
Landlord may post notices of non-responsibility, if appropriate.
(b) All alterations, improvements and additions to the Premises,
including, by way of illustration but not by limitation, all counters,
screens, grilles, special cabinetry work, partitions, paneling,
carpeting, drapes or other window coverings and light fixtures, shall
be deemed a part of the real estate and the property of Landlord and
shall remain upon and be surrendered with the Premises as a part
thereof without molestation, disturbance or injury at the end of the
Lease term, whether by lapse of time or otherwise, unless Landlord, by
notice given to Tenant no later than fifteen (15) days prior to the
end of the term, shall elect to have Tenant remove all or any of such
alterations, improvements or additions (excluding non-movable office
walls), and in such event, Tenant shall promptly remove, at its sole
cost and expense, such alterations, improvements and additions and
restore the Premises to the condition in which the Premises were prior
to the making of the same, reasonable wear and tear excepted. Any such
removal, whether required or permitted by Landlord, shall be at
Tenant's sole cost and expense, and Tenant shall restore the Premises
to the condition in which the Premises were prior to the making of the
same, reasonable wear and tear excepted. All movable partitions,
machines and equipment which are installed in the Premises by or for
Tenant, without expense to Landlord, and can be removed without
structural damage to or defacement of the Building or the Premises,
and all furniture, furnishings and other articles of personal property
owned by Tenant and located in the Premises (all of which are herein
called "Tenant's Property") shall be and remain the property of Tenant
and may be removed by it at the expiration of the term. However, if
any of Tenant's Property is removed, Tenant shall repair or pay the
cost of repairing any damage to the Building or the Premises resulting
from such removal.
9
(c) If Landlord permits persons requested by Tenant to perform any
alterations, repairs, modifications or additions to the Premises, then
prior to the commencement of any such work Tenant shall deliver to
Landlord certificates issued by insurance companies qualified to do
business in the state where the Premises are located evidencing that
workmen's compensation, public liability insurance and property damage
insurance, all in amounts, with companies and on forms satisfactory to
Landlord, are in force and maintained by all such contractors and
subcontractors engaged by Tenant to perform such work. All such
policies shall name Landlord as an additional insured and shall
provide that the same may not be canceled or modified without thirty
(30) days prior written notice to Landlord.
(d) Tenant, at its sole cost and expense, shall cause any permitted
alterations, decorations, installations, additions or improvements in
or about the Premises to be performed in compliance with all
applicable requirements of insurance bodies having jurisdiction, and
in such manner as not to interfere with, delay, or impose any
additional expense upon Landlord in the construction, maintenance or
operation of the Building, and so as to maintain harmonious labor
relations in the Building.
11. ENTRY BY LANDLORD:
-----------------
(a) Landlord and its agents shall have the right to enter the Premises at
all reasonable times and upon reasonable notice for the purpose of
examining or inspecting the same, to supply any services to be
provided by Landlord hereunder, to show the same to prospective
purchasers of the Building, to make such alterations, repairs,
improvements or additions to the Premises or to the Building as
Landlord may deem necessary or desirable, and to show the same to
prospective tenants of the Premises DURING THE LAST SIX (6) MONTHS OF
---------------------------------
THE LEASE UNLESS OTHERWISE AGREED. Landlord and its agents may enter
---------------------------------
the Premises at all times and without advance notice for the purpose
of responding to an actual or apparent emergency. Landlord may for the
purpose of supplying scheduled janitorial services and evaluating
janitorial services at any time and from time to time enter the
Premises by means of a master key without liability to Tenant and
without affecting this Lease.
(b) Tenant shall be entitled to ELEVEN (11) sets of keys to the Premises.
-----------
In the event Tenant needs any additional keys, such keys must be
requested from Landlord. Tenant shall pay to Landlord the actual cost
of making such additional keys.
12. MECHANIC'S LIENS: Tenant shall pay or cause to be paid all costs for work
----------------
done by or on behalf of Tenant or caused to be done by or on behalf of
Tenant on the Premises of a character which will or may result in liens
against Landlord's interest in the Premises, Building or Building Complex
and Tenant will keep the Premises, Building and Building Complex free and
clear of all mechanic's liens and other liens on account of work done for
or on behalf of Tenant or persons claiming under Tenant. Tenant hereby
agrees to indemnify, defend and save Landlord harmless of and from all
liability, loss, damages, costs or expenses, including attorneys' fees,
incurred in connection with any claims of any nature whatsoever for work
performed for, or materials or supplies furnished to Tenant, including lien
claims of laborers, materialmen or others. Should any mechanic's liens be
filed or recorded against the Premises, Building or Building Complex with
respect to work done for or materials supplied to or on behalf of Tenant or
should any Action affecting the title thereto be commenced, Tenant shall
cause such liens to be released of re-cord within ten (10) days after
notice thereof. If Tenant desires to contest any such claim of lien, Tenant
shall nonetheless cause such lien to be released of record by the posting
of adequate security with a court of competent jurisdiction if provided by
applicable law or statute of the state where the Premises are located. If
Tenant shall be in default in paying any charge for which such a mechanic's
lien or suit to foreclose such a lien has been recorded or filed and shall
not have caused the lien to be released as aforesaid, Landlord may (but
without being required to do so) pay such lien or claim and any costs
associated there-with, and the amount so paid, together with interest at
the Interest Rate and reasonable attorneys' fees incurred in connection
therewith, shall be immediately due and payable from Tenant to Landlord as
Additional Rent.
10
13. DAMAGE TO PROPERTY, INJURY TO PERSONS:
-------------------------------------
(a) Tenant, for itself and its legal representatives, successors and
assigns, as a material part of the consideration to be rendered to
Landlord under this Lease, hereby indemnifies and agrees to hold
harmless Landlord, its agents, employees, contractors, legal
representatives, successors and assigns, from any and all claims of
liability for any injury or damage to any person or property
whatsoever occurring in, on or about the Premises or the Building
Complex or any part thereof, to the extent such injury or damage is
caused by the negligence, fault or omission of Tenant, its agents,
contractors, employees, licensees or invitees or from any breach or
default in the performance of any obligation on Tenant's part to be
performed under the terms of this Lease. BUT NOTHING CONTAINED HEREIN
SHALL REQUIRE TENANT TO INDEMNIFY LANDLORD TO THE EXTENT OF ANY
LIABILITIES ARISING FROM THE NEGLIGENCE OR WILLFUL MISCONDUCT OF
LANDLORD, ITS AGENTS, EMPLOYEES OR CONTRACTORS. Such indemnities shall
include by way of example, but not limitation, all Costs, reasonable
attorneys' fees, expenses and liabilities incurred in or about any
such claim, action or proceeding.
(b) Landlord shall not be liable to Tenant for any damage by or from any
act or negligence of any co-tenant or other occupant of the Building
Complex, or by any owner or occupant of adjoining or contiguous
property. Landlord assumes no liability for any injury or damage to
persons or property resulting in whole or in part from the criminal
activities of others. To the extent not covered by normal fire and
extended coverage insurance, Tenant agrees to pay for all damage to
the Building Complex, as well as all damage to persons or property of
other tenants or occupants thereof, caused by the NEGLIGENCE OR
-------------
WILLFUL MISCONDUCT of Tenant or any of its agents, contractors,
------------------
employees, licensees or invitees. BUT NOTHING CONTAINED HEREIN SHALL
REQUIRE TENANT TO INDEMNIFY LANDLORD TO THE EXTENT OF ANY LIABILITIES
ARISING FROM THE NEGLIGENCE OR WILLFUL MISCONDUCT OF LANDLORD, ITS
AGENTS, EMPLOYEES OR CONTRACTORS.
(c) Neither Landlord nor its agents or employees shall be liable for any
loss or damage to any property occurring by theft or otherwise, nor
for any injury or damage to persons or property resulting from fire,
explosion, falling plaster, steam, gas, electricity, water or rain
which may leak from any part of the Building Complex or from the
pipes, appliances or plumbing works therein or from the roof, street
or subsurface or from any other place or resulting from dampness, or
any other cause whatsoever; provided, however, nothing contained
herein shall be construed to relieve Landlord from liability for any
personal injury or property damage resulting from its gross
negligence. Neither Landlord nor its agents or employees shall be
liable for interference with the lights, view or other incorporeal
hereditament, nor shall Landlord be liable for any latent defect in
the Premises or in the Building or Building Complex. Tenant shall give
prompt notice to Landlord in case of fire or accidents in or about the
Premises or the Building or of defects therein or in the fixtures or
equipment located therein.
(d) In case any claim, demand, action or proceeding is made or brought
against Landlord OR TENANT, its agents or employees, by reason of any
---------
obligation on LANDLORD'S OR Tenant's part to be performed under the
-------------
terms of this Lease, or arising from any act or negligence of Tenant,
its agents or employees, or which gives rise to Tenant's obligation to
indemnify Landlord, THE PREVAILING PARTY shall be responsible for all
--------------------
costs and expenses, including but not limited to reasonable attorneys'
fees incurred in defense or prosecution of the same, as applicable.
14. INSURANCE:
---------
(a) Landlord agrees to carry and maintain the following insurance during
the term of this Lease and any extension hereof: general public
liability insurance against claims for personal injury, including
death and property damage in or about the Premises and the Building or
the Building Complex (excluding Tenants Property), such insurance to
be in an amount not less than One Million Dollars ($1,000,000.00) each
occurrence, Two Million Dollars ($2,000,000.00) aggregate. Such
insurance may expressly exclude property paid for by tenants or paid
for by Landlord for which tenants have reimbursed Landlord located in,
or constituting a part of the Building or the Building Complex. Such
insurance shall afford coverage for damages resulting from (a) fire,
(b) perils covered by extended coverage insurance, and (c) explosion
of steam and pressure boilers and similar apparatus located in the
Building or the Building Complex. Landlord may carry such other
additional insurance coverage as Landlord or Landlord's mortgagee
deems appropriate including coverage for loss of
11
rents. All such insurance shall be procured from a responsible
insurance company or companies authorized to do business in the State
where the Premises are located.
(b) Tenant shall, at its own cost, at all times during the term of this
Lease and any extensions hereof, procure and maintain insurance for
hazard, fire and extended coverage on Tenant's PERSONAL Property and
--------
the contents of the Premises in an amount equal to full replacement
cost thereof, and comprehensive general liability insurance, including
coverage for bodily injury, property damage, personal injury (employee
and contractual liability exclusions deleted), products and completed
operations, contractual liability, owners protective liability, host
liquor legal liability and broad form property damage with the
following limits of liability: One Million Dollars ($1,003,000.00)
each occurrence combined single limit for bodily injury, property
damage and personal injury; Two Million Dollars ($2,000,000.00)
aggregate for bodily injury and property damage for products and
completed operations. All such insurance shall be procured from a
responsible insurance company or companies authorized to do business
in the State where the Premises are located, with general
policyholders ratings of not less than "A" and a financial rating of
not less than "A" in the most current available Best's Insurance
Reports, and shall be otherwise satisfactory to Landlord. All such
policies shall name Landlord as an additional insured and loss payee,
as applicable, and shall provide that the same may not be canceled or
altered except upon thirty (30) days prior written notice to Landlord.
All insurance maintained by Tenant shall be primary to any insurance
provided by Landlord. If Tenant obtains any general liability
insurance policy on a claims-made basis, Tenant shall provide
continuous liability coverage for claims arising during the entire
term of this Lease, regardless of when such claims are made, either by
obtaining an endorsement providing for an unlimited extended reporting
period in the event such policy is canceled or not renewed for any
reason whatsoever or by obtaining new coverage with a retro active
date the same as or earlier than the expiration date of the canceled
or expired policy. Tenant shall provide certificate(s) of such
insurance to Landlord upon commencement of the Lease term and at least
thirty (30) days prior to any annual renewal date thereof and upon
request from time to time and such certificate(s) shall disclose that
such insurance names Landlord as an additional insured and loss payee,
as applicable. The limits of such insurance shall not, under any
circumstances, limit the liability of Tenant hereunder.
(c) Each party agrees to use its best efforts to include in each of its
policies insuring against loss, damage or destruction by fire or other
casualty a waiver of the insurer's right of subrogation against the
other party, or if such waiver should be unobtainable or
unenforceable (i) an express agreement that such policy shall not be
invalidated if the insured waives the right of recovery against any
party responsible for a casualty covered by the policy before the
casualty; or (ii) any other form of permission for the release of the
other party. If such waiver, agreement or permission shall not be, or
shall cease to be, obtainable without additional charge or at all, the
insured party shall so notify the other party promptly after learning
thereof. In such case, if the other party shall so elect and shall pay
the insurers additional charge therefor, such waiver, agreement or
permission shall be included in the policy, or the other party shall
be named as an additional insured in the policy. Each such policy
which shall so name a party hereto as an additional insured shall
contain, if obtainable, agreements by the insurer that the policy will
not be canceled without at least thirty (30) days prior notice to both
insured and that the act or omission of one insured will not
invalidate the policy as to the other insured. Any failure by either
party, if named as an additional insured, promptly to endorse to the
order of the other party, without recourse, any instrument for the
payment of money under or with respect to the policy of which the
other party is the owner or original or primary insured, shall be
deemed a default under this Lease.
(d) Each party hereby releases the other party with respect to any claim
(including a claim for negligence) which it might otherwise have
against the other party for loss, damage or destruction with respect
to its property (including the Building, Building Complex, the
Premises and rental value or business interruption) occurring during
the term of this Lease to the extent to which it is insured under a
policy or policies containing a waiver of subrogation or permission to
release liability or naming the above party as an additional insured
as provided above.
12
15. DAMAGE OR DESTRUCTION TO BUILDING:
----------------------------------
(a) In the event that the Premises or the Building are damaged by fire or
other insured casualty and the insurance proceeds have been made
available therefor by the holder or holders of any mortgages or deeds
of trust covering the Building, and such insurance proceeds will be
sufficient to cover the entire cost of repairing the damage, the
damage shall be repaired by and at the expense of Landlord to the
extent of such insurance proceeds available therefor, provided such
repairs and restoration can, in Landlord's reasonable opinion, be made
within two hundred ten (210) days after the occurrence of such damage
without the payment of overtime or other premiums, and until such
repairs and restoration are completed, the Base Rent shall be abated
in proportion to the part of the Premises which is unusable by Tenant
in the conduct of its business, as may be reasonably determined by
Landlord, (but there shall be no abatement of Base Rent by reason of
any portion of the Premises being unusable for a period equal to one
day or less). Landlord agrees to notify Tenant within forty-five (45)
days after such casualty if it estimates that it will be unable to
repair and restore the Premises within said two hundred ten (210) day
period, or if insurance proceeds will not be sufficient to cover the
entire cost of repairing the damage. If insurance proceeds will not be
sufficient to cover the entire cost of repairing the damage, Landlord
shall have the option to terminate this Lease within fifteen (15) days
after giving notice to Tenant, as required by the preceding sentence.
If such repairs and restoration cannot, in Landlord's reasonable,
opinion, be made within the 210-day period, such notice shall set
forth the approximate length of time Landlord estimates will be
required to complete such repairs and restoration. Notwithstanding
anything to the contrary contained herein, if Landlord cannot or
estimates it cannot make such repairs and restoration within said two
hundred ten (210) day period, then Tenant may, by written notice to
Landlord cancel this Lease, provided such notice is given to Landlord
within fifteen (15) days after Landlord notifies Tenant of the
estimated time for completion of such repairs and restoration.
Notwithstanding the preceding sentence, Tenant may not cancel this
Lease as hereinabove stated if the damage to the Premises or the
Building is in whole or in part the result of the act, omission, fault
or negligence of Tenant, its agents, contractors, employees, licensees
or invitees. Except as provided in this Paragraph 15, there shall be
no abatement of rent 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 such repairs, alterations or improvements in or
to the Building, Premises or fixtures, appurtenances and equipment.
Tenant understands that Landlord will not carry insurance of any kind
on Tenant's Property, including furniture and furnishings, or on any
fixtures or equipment removable by Tenant under the provisions of this
Lease, or any improvement installed in the Premises by or on behalf of
Tenant, and that Landlord shall not be obligated to repair any damage
thereto or replace the same.
(b) In case the Building throughout shall be so injured or damaged,
whether by fire or otherwise (though the Premises may not be affected,
or if affected, can be repaired within said 210 days) that Landlord,
within sixty (60) days after the happening of such injury, shall
decide not to reconstruct or rebuild the Building, then
notwithstanding anything contained herein to the contrary, upon notice
in writing to that effect given by Landlord to Tenant within said
sixty (60) days, Tenant shall pay the rent, properly apportioned up to
date of such casualty, this Lease shall terminate from the date of
delivery of said written notice, and both parties hereto shall be
released and discharged from all further obligations hereunder (except
those obligations which expressly survive termination of the Lease
term).
16. CONDEMNATION:
-------------
(a) Total Condemnation: If the whole of the Premises shall be taken for a
public or quasi-public use or purpose under power of eminent domain,
or transferred under threat thereof, the term of this Lease shall
terminate and rents shall be apportioned as of the date actual
physical possession thereof shall be so taken by the condemning
authority.
(b) Partial Condemnation: If any portion of the Premises shall be taken
for a public or quasi-public use or purpose under the power of eminent
domain, or transferred under threat thereof, and such
13
partial taking may reasonably be construed to render the remainder of
the Premises unsuitable for the business of Tenant, Tenant shall be
entitled either to elect to cancel and terminate this lease as of the
date actual physical possession of said portion shall be so taken by
the condemning authority, or to remain in possession of the remainder
of the Premises not so taken; provided, however, that Tenant shall
give Landlord written notice of its election within ten (10) days
after the date of Landlord's notification to Tenant of the pending
partial condemnation, and failing to do so, Tenant shall be deemed to
have elected to remain in possession. In the event Tenant shall elect
or be deemed to have elected to remain in possession, or if the
portion of the Premises so taken shall not be so extensive as may
reasonably be construed to render the remainder of the Premises
unsuitable for the business of Tenant, then and in either such event,
if any portion of the total award is made for a taking of any portion
of the Premises, Landlord shall (but only out of and not exceeding
such portion of the award received by Landlord for or on account of
such taking) repair, reconstruct or restore the remainder of the
Premises (including the building which is a part thereof) to its
condition as it existed immediately prior to such taking (and tenant
shall not be entitled to any damages by reason of any inconvenience or
loss sustained by Tenant as a result thereof) and, except as otherwise
herein provided, this Lease shall continue in all respects in full
force and effect
(c) Abatement of Rent:
(1) If any portion of the Premises shall be taken for a public or
quasi-public use or purpose and Tenant shall elect or be deemed
to have elected to remain in possession as hereinabove provided,
or if the portion of the Premises so taken shall not be so
extensive as may reasonably be construed to render the remainder
of the Premises unsuitable for the business of Tenant, then, and
in either such event, the Base Rent and Additional Rent
(hereinafter "rent and other charges") shall be adjusted as
follows:
A. During the period between the date of such actual taking of
physical possession and the completion of the repairs,
reconstruction or restoration, if any, required by
subparagraph 16(b)(1) hereof, Tenant shall be required to
pay only such portion of the rent and other charges equal to
the portion thereof which the number of square feet of
rentable area in the Premises remaining in a tenantable
condition during such period bears to the total number of
square feet of rentable area in the Premises immediately
prior to such taking of physical possession.
B. Upon completion of said repairs, reconstruction or
restoration, if any, and thereafter throughout the remainder
of the term of this Lease, the rent and other charges
reserved herein shall be equitably reduced in the same
proportion which the number of square feet of rentable area
in the Premises so taken bears to the total number of square
feet of rentable area in the Premises immediately prior to
such taking of physical possession.
(2) No Other Abatement: Except for the abatement in the rent and
other charges expressly hereinabove provided for, there shall be
no reduction, change or abatement of any rental or other charge
payable by or on the part of Tenant to Landlord hereunder, or in
the method of computing, accounting for or paying the same; and
in no event shall there be any reduction, change or abatement of
any rental or other charge whatsoever hereunder until such time
as there shall have been an actual taking of physical possession
of a portion of the Premises.
(d) Condemnation of Common Area: If any portion of the Common Area of the
Building Complex shall be taken for a public or quasi-public use or
purpose under the power of eminent domain, or transferred under threat
thereof, and such taking deprives Tenant, its subtenants, licensees,
concessionaires, business invitees, customers, suppliers, agents,
representatives or employees of reasonable ingress and egress to and
from the Building Complex or the Premises, or if such taking reduces
the area of the vehicular parking portions of the Common Area by an
amount which violates applicable zoning or code requirements, then,
and in either such event, Tenant and
14
Landlord shall each have the right, within thirty (30) days after the
date of transfer of title or possession, whichever occurs first, to
cancel and terminate this Lease by giving to the other at least thirty
(30) days written notice of its election so to do provided, however,
that Tenant shall have no such right to cancel or terminate this Lease
if Landlord promptly commences. to take steps to restore reasonable
means of ingress and egress or (as the case may be) to restore the
vehicular parking portions of the Common Area to amounts which comply
with applicable zoning and code requirements by substituting therefore
other lands within the Building Complex or located within a reasonable
proximity thereto, or by constructing multiple level or subterranean
parking, or by any or all of such means and thereafter diligently
proceeds to complete such restoration. In the event Tenant shall elect
to remain in possession, or if this Lease is not otherwise terminated
in accordance with the provisions of this subparagraph 16(d), there
shall be no reduction or abatement of any rent or other charge
whatsoever payable on the part of Tenant to Landlord hereunder, and
this Lease shall continue in all respects in full force and effect.
(e) Damages Awarded:
(1) Except as otherwise herein provided, all damages awarded or other
sums or awards paid on account of any condemnation or taking (or
the threat thereof) under the power of eminent domain of the
Premises, the Common Area, or any portion or portions of the
Building Complex, shall belong to and shall be the sole property
of Landlord; whether such damages or other sums are awarded as
compensation for loss or diminution in value of the Tenant's
leasehold interest in the Premises, or for the fee (or Landlord's
leasehold estate) of the Premises, or as severance damages, or
otherwise, and Tenant hereby assigns to Landlord any interest
which it might otherwise have in any such award.
(2) Tenant in no event shall have any claim whatsoever against
Landlord for loss; or diminution of value of the Tenant's
leasehold interest or for the value of any unexpired term of this
Lease and Tenant hereby expressly waives any such right or claim;
provided, however, that Tenant shall be entitled to receive any
award or portion thereof made for the taking of any of Tenant's
Property (described in subparagraph 10(b)) under the power of
eminent domain, and for damages thereto caused thereby, for any
cost to which Tenant might be put in relocating Tenant's
Property, and for interruption of, or damage to Tenants business.
(f) Effect of Termination: In the event this Lease is canceled or
terminated pursuant to any of the provisions of this Paragraph 16, the
effective date of such cancellation or termination shall be the date
upon which actual physical possession shall be taken by the condemnor,
or the date upon which Tenant ceases doing business in, upon or from
the Premises, whichever last occurs. All rent and other charges
payable on the part of Tenant to Landlord hereunder shall be paid
through the effective date of such cancellation or termination. After
such payment, and as of the effective date of such cancellation or
termination, the parties shall thereupon be released from all further
liability hereunder, except that Landlord shall make an equitable
refund to Tenant of any unearned, unused or unappropriated advance
rental or security deposit theretofore paid by Tenant to Landlord
hereunder.
(g) Voluntary Transfer: A voluntary transfer of all or part of the
Premises or of the Common Area or other portion of the Building
Complex by Landlord to any public or quasi-public body, agency or
person, corporate or otherwise, having the power of eminent domain,
either under threat of condemnation or while condemnation proceedings
are pending, shall be deemed to be a taking under the power of eminent
domain for the purposes of this Paragraph 16.
(h) Temporary Condemnation: If the whole or any part of the Premises,
Common Area, vehicular parking areas or other portion of the Building
Complex, or any interests or rights of use therein are taken for a
public or quasi-public use or purpose or under or in connection with
the threat thereof, for a limited period of time ("Temporary Taking"),
this Lease shall continue in all respects, in full force and effect
and there shall be no reduction, charge or abatement of any rent and
other
15
charges payable by Tenant, or in the method of computing, accounting
for or paying the same. Tenant shall be entitled to claim and recover
directly from the condemning authority any compensation and damages
payable on account thereof, to the extent of and as applicable to any
such Temporary Taking which deprives Tenant of its rights hereunder;
provided, however, that if the Temporary Taking is for a period
extending beyond the Primary Lease Term, or the then current renewal
term of this Lease, such award shall be apportioned between Landlord
and Tenant as of the termination date of said term.
17. ASSIGNMENT AND SUBLETTING:
-------------------------
(a) Tenant shall not permit any part of the Premises to be used or
occupied by any persons other than Tenant and its employees, nor shall
Tenant permit any part of the Premises to be used or occupied by any
licensee or concessionaire or permit any persons other than Tenant,
its employees and invitees, to be upon the Premises. Tenant shall not
voluntarily, by operation of law, or otherwise, assign, transfer or
encumber this Lease or any interest herein nor sublet or part with
possession of all or any part of the Premises (any and all of which
shall hereinafter be referred to as a "Transfer') without Landlord's
prior written consent, such consent not to be unreasonably withheld.
Any Transfer without the prior written consent of Landlord shall
constitute a default hereunder, shall be void and shall confer no
rights upon any third party, notwithstanding Landlord's acceptance of
rent payments from any purported transferee. Landlord's consent to any
requested assignment of this Lease or subletting of all or any part of
the Premises shall be subject to the following conditions:
(1) such consent and resulting subletting or assignment shall not
relieve Tenant of its primary obligations hereunder, including
the obligation for payment of all rents due hereunder;
(2) Landlord, at its option and from time to time, may collect the
rent from the subtenant or assignee, and apply the net amount
collected to the rent herein reserved, but no such collection
shall be deemed an acceptance by Landlord of the subtenant or
assignee as the tenant hereof, or a release of Tenant from
further performance of covenants on the part of Tenant herein
contained;
(3) any such subtenant or assignee shall be a company or other entity
of good repute, engaged in a business or profession compatible
with and in keeping with the then standards of the Building,
financially capable of performing its obligations with respect to
the Premises and have a net worth and financial strength equal to
or greater than Tenant,
(4) such subtenant or assignee shall assume and agree to perform all
of Tenant's obligations under this Lease insofar as they pertain
to the space so sublet or assigned; and
(5) Tenant is not in default of any term or condition of this Lease
at the time it requests Landlord's consent.
(b) In the event of any Transfer of this Lease or all or any part of the
Premises by Tenant, Landlord in addition to any rights contained
herein, shall have the option, at its discretion, to collect and
receive all net sums and other consideration due to Tenant from such
sublessee or assignee over the Base Rent due hereunder.
(c) The sale or other transfer, in one or more transactions of all or a
majority of the stock of Tenant, if Tenant is a corporation, or the
sale of all or a majority of the ownership interest in Tenant, if
Tenant is a partnership, or the sale of all or substantially all of
the assets of Tenant shall constitute a Transfer for purposes of this
Lease.
(d) At the time of making a request for Landlord's consent to a Transfer
and not less than thirty (30) days prior to the proposed effective
date thereof, Tenant shall provide to Landlord such information as
Landlord, its accountants and attorneys, shall reasonably require with
respect to such proposed Transfer, including but not limited to name
and address of the proposed transferee, description of
16
business operations, financial information and certificate of
corporate authority and good standing or partnership certificate, as
applicable. SEE ADDENDUM PARAGRAPH 4
------------------------
(e) Consent of Landlord to a Transfer shall not relieve Tenant from
seeking consent to any subsequent Transfers.
(f) Subletting or assignments by subtenants or assignees shall not be
permitted under any circumstances, nor shall Tenant be permitted to
assign this Lease or sublet all or any part of the Premises during any
period of time that all or any portion of the Base Rent is abated.
Further, no option to renew or extend the term of this Lease or to
lease additional space, if any, shall be exercisable by any subtenant
or assignor.
(g) All subleases or assignments shall be in writing and a copy thereof
provided to Landlord within ten (10) days of its effective date. All
subleases shall further contain an express provision that in the event
of any default by Tenant under this Lease and upon notice thereof to
the subtenant from Landlord, all rentals payable by the subtenant
shall be paid directly to Landlord, for the Tenants account, until
subsequent notice from Landlord that such default has been cured.
Notwithstanding the foregoing, receipt by Landlord of rent directly
from the subtenant shall not be considered a waiver of the
default on the part of Tenant, nor an acceptance of such subtenant.
18. ESTOPPEL CERTIFICATE: Tenant further agrees at any time and from time to
--------------------
time on or before TEN (10) (6) days after written request by Landlord, to
execute, acknowledge and deliver to Landlord an estoppel certificate certifying
(to the extent it believes the same to be true) that this Lease is unmodified
and in full force and effect (or if there have been modifications, that the same
is in full force and effect as modified, and stating the modifications), that
there have been no defaults thereunder by Landlord or Tenant (or if there have
been defaults, setting forth the nature thereof), the date to which the rent and
other charges have been paid, if any, the amount of any security deposit, the
Commencement Date and Termination Date of the term, whether or not Tenant has
any options to extend the term or expand the Premises, that Tenant claims no
present charge, lien, claim or offset against rent, the rent is not prepaid for
more than one month in advance and such other matters as may be reasonably
required by Landlord, Landlord's. mortgagee, or any potential purchaser of the
Building, it being intended that any such statement delivered pursuant to this
Paragraph may be relied upon by any prospective purchaser of all or any portion
of Landlord's interest herein, or a current or future holder of any mortgage or
deed of trust encumbering any portion of the Building Complex. Tenant's failure
to deliver such statement within such time shall be a default under this Lease.
19. DEFAULT:
--------
(a) The following events (herein referred to as an "event of default")
shall constitute a default by Tenant hereunder
(1) Tenant shall fail to pay WITHIN FIVE (5) DAYS AFTER NOTICE FROM
--------------------------------------
LANDLORD any installment of Base Rent, Additional Rent or any
--------
other amounts payable hereunder, PROVIDED THAT LANDLORD NEED NOT
-------------------------------
PROVIDE TENANT WITH WRITTEN NOTICE OF FAILURE MORE THAN TWICE
-------------------------------------------------------------
DURING THE TERM OF THE LEASE.
----------------------------
(2) This Lease or the estate of Tenant hereunder shall be transferred
to or shall pass to or devolve upon any other person or party in
violation of the provisions of this Lease, except as permitted
herein;
(3) This Lease or the Premises or any part thereof shall be taken
upon execution or by other process of law directed against
Tenant, or shall be taken upon or subject to any attachment at
the instance of any creditor or claimant against Tenant, and said
attachment shall not be discharged or disposed of within thirty
(30) days after the levy thereof;
17
(4) Tenant shall file a petition in bankruptcy or insolvency or for
reorganization or arrangement under the bankruptcy laws of the United
States or under any insolvency act of any state, or shall voluntarily
take advantage of any such law or act by answer or otherwise, or shall
be dissolved or shall make an assignment for the benefit of creditors;
(5) Involuntary proceedings under any such bankruptcy law or insolvency
act or for the dissolution of Tenant shall be instituted against
Tenant, or a receiver or trustee shall be appointed of all or
substantially all of the property of Tenant, and such proceedings
shall not be dismissed or such receivership or trusteeship vacated
within thirty (30) days after such institution or appointment;
(6) Tenant shall fail to take possession of the Premises within thirty
(30) days of the Commencement Date;
(7) SHOULD Tenant abandon the Premises for ten (10) consecutive days;
------
(8) Tenant shall fail to perform any of the other agreements, terms,
covenants or conditions hereof on Tenant's part to be performed (other
than the obligation to pay rent or any other charges payable
hereunder), and such nonperformance shall continue for a period of
fifteen (15) days after notice thereof by Landlord to Tenant;
provided, however, that if Tenant cannot reasonably cure such
nonperformance within fifteen (15) days, Tenant shall not be in
default if it commences cure within said fifteen (15) days and
diligently pursues the same to completion, with completion occurring
in all instances within sixty (60) days;
(9) Tenant shall, for reasons other than those specifically permitted in
this Lease, cease to conduct continually its normal business
operations in the Premises, or fail to, from the Commencement Date
throughout the term of this Lease and any renewals hereof, operate its
normal business activities as an active and ongoing entity consistent
with generally accepted standards in the industry;
(10) Tenant shall fail to obtain a release of any mechanic's lien, as
required under Paragraph 12 hereof, or fail to timely provide an
estoppel certificate as required under Paragraph 18 hereof;
(11) A guarantor of this Lease, if any, or a general partner of Tenant (if
Tenant is a general or limited partnership), becomes a debtor under
any state or federal bankruptcy proceedings, or becomes subject to
receivership or trusteeship proceedings, whether voluntary or
involuntary except in the case of a guarantor, Tenant shall not be in
default It if a substitute guarantor, with acceptable creditworthiness
and financial abilities in light of the responsibilities of Tenant
hereunder, and otherwise acceptable to Landlord, is provided to
Landlord within fifteen (15) days; and
(12) All or any part of the personal property of Tenant is seized, subject
to levy or attachment, or similarly repossessed or removed from the
Premises.
(b) Upon the occurrence of an event of default, and in addition to any other
remedies now or hereafter available to Landlord at law or in equity,
Landlord shall have the right, at its election, then or at any time
thereafter and while any such event of default shall continue, either;
(1) To give Tenant written notice of Landlord's intention to terminate
this Lease on the date such notice is given or on any later date
specified therein, where-upon, on the date specified in such notice,
tenant's right to possession of the premises shall cease and this
lease shall thereupon be terminated without prejudice to Landlord's
rights as described below; or
18
(2) To re-enter and take possession of the Premises or any part thereof
and repossess the same as Landlord's former estate and expel Tenant
and those claiming through or under Tenant, and remove the effects of
both or either, without being deemed guilty of any manner of trespass
and without prejudice to any remedies for arrears of rent or breach of
covenants or conditions. Should Landlord elect to re-enter the
Premises pursuant to the provisions hereof, legal proceedings or any
notice provided for by law, Landlord may, from time to time, without
terminating this Lease, relet the Premises or any part thereof for
such term or terms (which may be greater or less than the period which
would otherwise have constituted the balance of the term of this
Lease) and on such conditions and upon such other terms (which may
include concessions of free rent and alteration and repair of the
Premises) as Landlord, in its discretion, may determine, and Landlord
may collect and receive the rents therefor. Landlord shall in no way
be responsible or liable for any failure to relet the Premises or any
part thereof or for any failure to collect any rent due upon such
reletting. No such re-entry or taking possession of the Premises by
Landlord shall be construed as an election on Landlord's part to
terminate this Lease unless a written notice of such termination is
given to Tenant. No notice from Landlord hereunder or under a forcible
entry and detainer statute or similar law shall constitute an election
by Landlord to terminate this Lease unless such notice specifically so
states. Landlord reserves the right following any such re-entry and/or
reletting, to exercise its right to terminate this Lease by giving
Tenant such written notice, in which event, this Lease will terminate
as specified in said notice.
(c) In the event that Landlord elects to terminate this Lease as permitted in
Paragraph 19(b)(1) hereof, or elects to take possession as provided in
Paragraph 19(b)(2), Tenant shall pay to Landlord (i) the Base Rent,
Additional Rent and other sums as herein provided, which would be payable
hereunder if such termination or repossession had not occurred, less (ii)
the net proceeds, if any, of any reletting of the Premises after deducting
all Landlord's expenses in connection with such reletting, including but
without limitation, all repossession costs, brokerage commissions, legal
expenses, attorneys' fees, expenses of employees, alteration and repair
costs and expenses of preparation for such reletting. If, in connection
with any reletting, the new lease term extends beyond the existing term, or
the premises covered thereby include other premises not part of the
Premises, a fair apportionment of the rent received from such reletting and
the expenses incurred in connection therewith as provided aforesaid will be
made in determining the net proceeds from such reletting. Tenant shall pay
such rents and other sums to Landlord monthly on the days on which the Base
Rent would have been payable hereunder if such termination or repossession
had not occurred.
(d) In the event this Lease is terminated, then, as an alternative to the
rights provided in paragraph 19(c) hereof, and at Landlord's option,
Landlord shall be entitled to recover against Tenant as damages for loss of
the bargain and not as a penalty, an aggregate sum which, at the time of
such termination of this Lease, represents the excess, if any, of the
aggregate of the Base Rent, Additional Rent and all other sums payable by
Tenant hereunder that would have accrued for the balance of the term, over
the aggregate rental value of the Premises (such rental value to be
computed on the basis of a tenant paying not only a rent to Landlord for
the use and occupation of the Premises, but also such other charges as are
required to be paid by Tenant under the terms of this Lease) for the
balance of such term, both discounted to present worth at the rate of eight
percent (8%) per annum.
(e) Suit or suits for the recovery of the amounts and damages set forth above
may be brought by Landlord, from time to time, at Landlord's election and
nothing herein shall be deemed to require Landlord to await the date
whereon this Lease or the term hereof would have expired had there been no
such default by Tenant or no such termination, as the case may be.
(f) After an event of default by Tenant, Landlord may xxx for or otherwise
collect all rents, issues and profits payable under all subleases on the
Premises, including those past due and unpaid.
19
(g) After an event of default by Tenant, Landlord may without terminating
this Lease, enter upon the Premises without being liable for any claim
for damages and without being deemed guilty of any manner of trespass
and without prejudice to any other remedies, and do whatever Tenant is
obligated to do under the terms of this Lease. Tenant agrees to
reimburse Landlord on demand for any expenses which Landlord may incur
in effecting compliance with the Tenant's obligations under this
Lease. Further, Tenant agrees that Landlord shall not be liable for
any damages resulting to Tenant from effecting compliance with
Tenant's obligations under this subparagraph.
(h) No failure by Landlord to insist upon the strict performance of any
agreement, term, covenant or condition hereof or to exercise any right
or remedy consequent upon a breach thereof, and no acceptance of full
or partial rent during the continuance of any such breach, shall
constitute a waiver of any such breach of such agreement, term,
covenant or condition. No waiver of any breach shall affect or alter
this Lease, but each and every agreement, term, covenant and condition
hereof shall continue in full force and effect with respect to any
other then existing or subsequent breach thereof.
(i) Nothing contained in this Paragraph shall limit or prejudice the right
of Landlord to prove and obtain as liquidated damages in any
bankruptcy, insolvency, receivership, reorganization or dissolution
proceeding, an amount equal to the maximum allowed by any statute or
rule of law governing such proceeding and in effect at the time when
such damages are to be proved, whether or not such amount be greater,
equal to or less than the amounts recoverable, either as damages or
rent referred to in any of the preceding provisions of this Paragraph.
(j) Any rents or other amounts owing to Landlord hereunder which are not
paid within five (5) days of the date they are due, shall bear
interest from the due date at the rate of eighteen percent (18%) per
annum ("Interest Rate") until paid. Similarly, any amounts paid by
Landlord to cure any default of Tenant or to perform any obligation of
Tenant, shall, if not repaid by the Tenant within five (5) days of
demand by Landlord, thereafter bear interest from the date paid by
Landlord at the Interest Rate until paid. In addition to the
foregoing, Tenant shall pay to Landlord whenever any Base Rent,
Additional Rent or any other sums due hereunder remain unpaid more
than five (5) days after the due date thereof, an administrative
charge to compensate Landlord for the costs and expenses associated
with handling a delinquent account equal to ten percent (10%) of the
amount due. Further, in the event of default by Tenant, in addition to
all other rights and remedies, Landlord shall be entitled to receive
from Tenant all sums in the nature of a rental abatement, the payment
of which may previously have been waived or abated by Landlord, and
the unamortized portion of any tenant finish allowance, moving
allowance or brokerage commission paid by Landlord, together with
interest thereon from the date or dates such amounts were paid by
Landlord, or would have been due from Tenant but for the abatement, at
the Interest Rate, until paid; it being understood and agreed that
such payment or abatement was made on the condition and basis that
Tenant fully perform all obligations and covenants under the Lease for
the entire term.
(k) Each right and remedy provided for in this Lease shall be cumulative
and shall be in addition to every other right or remedy provided for
in this Lease now or hereafter existing at law or in equity or by
statute or otherwise, including, but not limited to, suits for
injunctive or declaratory relief and specific performance. The
exercise or commencement of the exercise by Landlord of any one or
more of the rights or remedies provided for in this Lease now or
hereafter existing at law or in equity or by statute or otherwise
shall not preclude the simultaneous or subsequent exercise by landlord
of any or all other rights or remedies provided for in this lease, or
now or hereafter existing at law or in equity or by statute or other-
wise. All costs incurred by Landlord in connection with collecting any
amounts and damages owing by Tenant pursuant to the provisions of this
Lease or to enforce any provision of this Lease, including by way of
example, but not limitation, reasonable attorneys' fees from the date
any such matter is turned over to an attorney, shall also be
recoverable by Landlord from Tenant. Landlord and Tenant agree that
any action or proceeding arising out of this Lease shall be heard by a
court sitting without a jury and thus hereby waive all rights to a
trial by jury.
20
22. COMPLETION OF PREMISES:
-----------------------
(a) Landlord has agreed to make certain improvements to the Premises as
more full), set forth in a work letter (the "Work Letter") attached
hereto and incorporated herein as Exhibit D. Other than as set forth
in the Work Letter, Landlord shall have no obligation for any
improvements to the Premises, and Tenant shall accept the Premises in
its "as is" condition on the Commencement Date ABSENT PUNCH LIST ITEMS
AND LATENT DEFECTS. Landlord shall not have any obligation for the
repair or replacement of any portions of the interior of the Premises,
including but not limited to carpeting, draperies, window coverings,
wallcoverings or painting, which are damaged or wear out during the
term hereof, regardless of the cause therefor, except as may otherwise
be specifically set forth in this Lease. If the Premises are not Ready
for Occupancy (as hereafter defined) on the Commencement Date, unless
such delay is caused by Tenant, its agents or employees, the rental
obligations hereunder shall not commence until the Premises are Ready
for Occupancy, whereupon, this Lease and all covenants, conditions and
terms hereof shall be in full force and effect; and the Termination
Date hereof shall be postponed as set forth in paragraph 2(b). The
postponement of the rent and term herein provided for such period
shall be in full settlement for all claims which Tenant might have by
reason of the Premises not being Ready for Occupancy on the
Commencement Date. If Tenant wishes to take possession of all or any
part of the Premises prior to the date the Premises are Ready for
Occupancy, it must first secure the prior written consent of Landlord
and such occupancy shall in no way hinder, delay or interfere with
Landlord's work in completion of the Premises, and in such event, all
terms and provisions of this Lease, including the obligation to pay
rent at a rate equal to the monthly rate provided in Paragraph 3
(prorated accordingly) shall apply. "Ready for Occupancy" as that term
is used herein shall mean the date when all major construction aspects
of the Premises and any remodeling work to be performed by Landlord to
the extent agreed to in the Work Letter are completed although minor
items are not completed (including but not limited to, touch-up
plastering or repainting which does not unreasonably interfere with
Tenant's ability to carry on its business in the Premises). The
certificate of the architect (or other representative of Landlord) in
charge of supervising the completion or remodeling of the Premises
shall control conclusively the date upon which the Premises are Ready
for Occupancy. If Landlord is delayed in delivering the Premises to
Tenant because the same are not Ready for Occupancy or due to the
failure of a prior occupant to vacate the same, then the rent and term
shall be postponed as
21
hereinabove set forth, and such postponement shall be in full settlement of
all claims which Tenant may otherwise have by reason of the delay of
delivery.
(b) Landlord, at its sole option, may allow Tenant to enter into the Premises
for the purpose of installing furniture, fixtures and equipment, subject to
the terms of the Work Letter prior to the Commencement Date at its sole
risk and with no obligation to pay rent provided that such entry and work
do not unreasonably interfere in any way with the performance of Landlord's
work or other workers in and about the Building. At any time during such
period of early entry, if Landlord notifies Tenant that Tenant's entry or
work is interfering with or delaying the performance of work to be
performed by Landlord or other workers in and about the Building, or
causing any disruption whatsoever, Tenant shall forthwith discontinue any
further work and shall vacate the Premises, and shall cause its workmen or
contractors to remove therefrom, any equipment, materials or installations
which are the subject of Landlord's notice.
23. REMOVAL OF TENANT'S PROPERTY: All movable furniture and personal effects of
----------------------------
Tenant not removed AT THE END OF THE LEASE TERM, abandonment thereof or
upon the termination of this Lease for any cause whatsoever shall
conclusively be deemed to have been abandoned and may be appropriated,
sold, stored, destroyed or otherwise disposed of by Laridlord without
notice to Tenant and without obligation to account therefor, and Tenant
shall reimburse Landlord for all expenses incurred in connection with the
disposition of such property.
24. HOLDING OVER: Tenant shall vacate the Premises upon the expiration or
------------
earlier termination of this Lease. Tenant shall reimburse Landlord for and
indemnify Landlord against all damages and liability which Landlord incurs
from Tenant's delay in vacating the Premises, including without limitatior,
claims by and liability to any succeeding tenant founded on such delay and
any attorneys'fees and costs. If Tenant does not vacate the Premises upon
the expiration or earlier termination of the Lease and holds over without
Landlord's consent, Tenant shall be deemed a holdover tenant at will.
During such holdover period, Tenant shall be liable for all damages
incurred by Landlord as a result of Tenant's withholding of the Premises.
Should Tenant holdover after the expiration or earlier termination of this
Lease with Landlord's consent, Tenant shall become a tenant from month to
month, subject to all of the terms of this Lease as may be applicable to
such month to month tenancy, except that Tenant shall pay monthly rent
equal to two hundred percent (200%) of the last monthly rental rate plus
all other monetary charges as provided herein. Such tenancy shall continue
until terminated by Landlord, as provided by law, or until Tenant shall
have given to Landlord at least thirty (30) days written notice prior to
the last day of the calendar month intended as the date of termination of
such month to month tenancy.
25. PARKING AND COMMON AREAS:
------------------------
(a) Tenant shall have the right to use FIVE (5) assigned parking spaces
--------
(the "Assigned Spaces") located in the parking structure comprising a
part of the Building Complex (the "Garage") on the terms and
conditions contained herein. Tenant shall have the right to use SIX
---
(6) unassigned parking spaces (the "Unassigned Spaces") located in
---
a surface parking area constructed on the real property (the "Surface
Lot") on the terms and conditions contained herein The rights of
Tenant to the Assigned and Unassigned Spaces as granted by Landlord
shall collectively be referred to as the "Parking Privileges."
(b) There shall be no charge for the Unassigned Spaces. Tenant shall pay
to Landlord as a parking fee for the Assigned Spaces an amount (the
"Fee") equal to the result obtained by multiplying the monthly charge
per assigned parking space established by Landlord from time to time
for assigned parking privileges in the Garage times the number of
assigned parking spaces included in the Assigned Spaces. The initial
monthly charge per assigned parking space is $45.00 FOR COMPACT AND
----------------------
FOR MID-SIZE AND $60.00 FOR FULL SIZE and Landlord shall be entitled
-------------------------------------
to increase or decrease such charge from time to time upon at least
one month's written notice of the increase or decrease to Tenant,
provided, however, that any such increase shall not exceed the highest
amount charged for comparable covered parking spaces in the office
park area generally
24
referred to as the Denver Technological Center. The Fee shall be paid on
the first day of the Term of this Lease and on the first day of each
succeeding calendar month during the Term of this Lease. All payments of
the Fee shall be made in advance, without notice or set off, at the address
of Landlord set forth in this Lease, or at such place as Landlord from time
to time designates in writing. If the Term of this lease shall begin on a
day other than the first day of a calendar month or end on a day other than
the last day of a calendar month, the Fee for the fractional month at the
beginning or end of the Term of this Lease shall be prorated on a daily
basis and shall be paid on the date of the beginning of the Term of this
Lease or in advance on the first day of the last month of the Term of this
Lease, as the case may be.
(c) The Parking Privileges shall commence on the same day as the Term of this
Lease and shall continue in full force and effect for the Term of this
Lease unless sooner terminated or extended pursuant to the provisions of
this Lease. The Parking Privileges shall automatically terminate upon the
expiration or earlier termination of the Term of this Lease.
(d) (1) Tenant shall use the Assigned and Unassigned Spaces only for
automobile parking. Landlord shall have the right at any time to
change the arrangement or location of, or both, or to regulate the use
of, the Assigned and Unassigned Spaces or the Garage or Surface Lot
without incurring any liability to Tenant or entitling Tenant to any
abatement of the Fee. Among other things, Landlord shall be entitled
to assign designated areas for use by particular persons or groups of
persons and Tenant shall refrain from parking in such spaces. Tenant
acknowledges that the Unassigned Spaces will not be designated for use
by Tenant and that Tenant will use the Unassigned Spaces in the Garage
and Surface Lot in common with all persons to whom or which Landlord
grants the right to use the Assigned Spaces in the Garage and Surface
Lot.
(2) The use of the Assigned and Unassigned Spaces is subject to the
following rules:
A. Tenant shall designate use of the Assigned and Unassigned Spaces
to specific individuals employed by Tenant ("Designated Users"),
but Tenant shall remain responsible for all obligations to pay
rent or to otherwise perform hereunder. Tenant agrees to provide
Landlord from time to time with a listing of all vehicles of
Designated Users, including names, vehicle models and colors and
license plate numbers, and Tenant shall provide Landlord with a
revised listing promptly after any change to the listing. Tenant
shall see that all of Tenants Designated Users are supplied with
parking decals provided by Landlord, which decals shall at all
times be displayed prominently on the vehicles of Designated
Users. Tenant shall be responsible for enforcing compliance with
all terms contained herein by Designated Users of the Assigned
and Unassigned Spaces. Landlord shall have the right to directly
ban any Designated User from the Assigned and Unassigned Spaces
for violation of the Parking Privileges.
B. Tenant and Designated Users of the Assigned and Unassigned Space
shall approach and leave the parking facilities with due care for
pedestrians, other moving or parked vehicles, and the doors,
fences and other improvements in the Garage and on the Surface
Lot.
C. Tenant and Designated Users of the Assigned and Unassigned Spaces
shall park only in designated spaces and not in ramps, corridors
or approaches to the Garage or the Surface Lot.
D. Tenant and Designated Users of the Assigned and Unassigned Spaces
shall observe the special hours of opening, closing and non-use
of the Garage and the Surface Lot when closings are necessitated
for repairs, cleanings, and rehabilitations.
23
E. Tenant shall not be permitted to assign the Parking Privileges
of any interest or permit the Assigned and Unassigned Spaces
or any part thereof to be used by others without the prior
written consent of Landlord, which consent may be withheld by
Landlord in its absolute discretion; except that, if the
proposed assignee or user is a permitted assignee, sublessee
or occupant under the terms of this Lease, Landlord's consent
shall not be required. Tenant shall remain primarily liable
for the performance of the obligations of the Tenant hereunder
notwithstanding any assignment or occupancy arrangement
permitted or consented to under the provisions of this
Section.
(e) If the Parking Privileges are terminated, Tenant shall remain liable
to Landlord for all Fees and other sums accrued and unpaid hereunder
to the date of termination of the Parking Privileges.
(f) If Tenant shall default in making payment of any Fee or other sums due
hereunder, Landlord may charge Tenant and Tenant shall pay upon demand
interest thereon at the Default Rate specified in Section 19 (j) of
this Lease.
26. SURRENDER AND NOTICE: Upon the expiration or earlier termination of this
--------------------
Lease, Tenant shall promptly quit and surrender to Landlord the Premises
broom clean, in good order and condition, ordinary wear and tear excepted,
and Tenant shall remove all of its movable furniture and other effects and
such alterations, additions and improvements as Landlord shall require
Tenant to remove pursuant to Paragraph 10 hereof. In the event Tenant fails
to so vacate the Premises on a timely basis as required, Tenant shall be
responsible to Landlord for all costs and damages, including but not
limited to any amounts required to be paid to third parties who were to
have occupied the Premises, incurred by Landlord as a result of such
failure, plus interest thereon at the Interest Rate, from the date Landlord
incurs such costs and damages, on all amounts not paid by Tenant within
five (5) days of demand, until paid in full.
27. ACCEPTANCE OF PREMISES BY TENANT: Taking possession of the Premises by
--------------------------------
Tenant shall be conclusive evidence as against Tenant that the Premises
were in the condition agreed upon between Landlord and Tenant ABSENT ANY
LATENT DEFECTS and acknowledgement of satisfactory completion of the work
which Landlord agreed in the Work Letter to perform, except for any "punch
list" items set forth in writing from Tenant to Landlord within ten (10)
days after the Commencement Date. Without limiting the foregoing, Tenant
specifically acknowledges that it shall take possession of the Premises
despite the existence of various start-up inconveniences (if any) that may
be associated with the use of the Building's appurtenances, such as certain
construction obstacles, including scaffolding, delays in use of freight
elevator service, certain elevators not being available to Tenant, the
passage of work crews using elevators, uneven air conditioning services and
other conditions incident to construction in office buildings. Tenant also
acknowledges that from time to time Landlord may perform construction and
improvement work in other portions of the Building Complex and that such
work may cause intermittent noise, vibrations or other temporary
inconveniences; provided, however, Landlord will take all steps reasonably
necessary and feasible to minimize such inconveniences to Tenant
28. SUBORDINATION AND ATTORNMENT:
----------------------------
(a) This Lease, and all rights of Tenant here-under, are and shall be
subject and subordinate in all respects to all present and future
ground leases, overriding leases and underlying leases and/or grants
of term of the real property and/or the Building or the Building
Complex now or hereafter existing and to all deeds of trust, mortgages
and building loan agreements, including leasehold mortgages and
building loan agreements, which may now or here-after affect the
Building or the Building Complex or any of such leases, whether or not
such deeds of trust or mortgages shall also cover other lands or
buildings, to each and every advance made or hereafter to be made
under such deeds of trust or mortgages, and to all renewals,
modifications, replacements and extension of such leases, deeds of
trust and mortgages. The provisions of this Paragraph shall be self-
operative and no further instrument of subordination shall be
required. However, in confirmation of such subordination, Tenant shall
promptly execute and deliver to Landlord (or such other party so
designated by Landlord) at Tenant's own cost and expense, within live
(5) days after
24
request from Landlord an instrument, in recordable form if required,
that Landlord, the lessor of any such lease or the holder of any such
deed of trust or mortgage or any of their respective successors in
interest or assigns may request evidencing such subordination. Failure
by Tenant to comply with the requirements of this Paragraph shall be a
default hereunder. Notwithstanding the foregoing, in the event that
Tenant does not execute such documents as may be required to confirm
the subordination set forth in this Paragraph, Tenant hereby grants to
Landlord a power of attorney coupled with an interest to act as
Tenant's attorney in fact for the purposes of executing whatever
documents are necessary to evidence such subordination. The leases to
which this Lease is, at the time referred to, subject and subordinate
pursuant to this Paragraph are hereinafter sometimes called "superior
leases" and the deeds of trust or mortgages to which this Lease is, at
the time referred to, subject and subordinate are hereinafter
sometimes called "superior deeds of trust" or "superior mortgages".
The lessor of a superior lease or the beneficiary of a superior deed
of trust or superior mortgage or their successors in interest or
assigns are hereinafter sometimes collectively referred to as a
"superior party". Notwithstanding the foregoing, upon Tenant's
request, Landlord agrees to request such superior party grant to
Tenant a non-disturbance agreement in the form then being used by such
superior party for such purposes, providing that Tenant,
notwithstanding a default by Landlord, shall be entitled to remain in
possession of the Premises in accordance with the terms of this Lease
for so long as Tenant shall not be in default of any term, condition
or covenant of this Lease. Further, Tenant shall attorn to such
superior party.
(b) If, in connection with the procurement, continuation or renewal of any
financing for which the Building or the Building Complex or of which
the interest of the lessee therein under a superior lease represents
collateral in whole or in part, a lender shall request reasonable
modifications of this Lease as a condition of such financing, Tenant
will not unreasonably withhold its consent thereto provided that such
modifications do not increase the obligations of Tenant under this
Lease or adversely affect any rights of Tenant or decrease the
obligations of Landlord under this Lease.
29. PAYMENTS AFTER TERMINATION: No payments of money by Tenant to Landlord
--------------------------
after the termination of this Lease, in any manner, or after giving of any
notice (other than a demand for payment of money) by Landlord to Tenant,
shall reinstate, continue or extend the term of this Lease or affect any
notice given to Tenant prior to the payment of such money, it being agreed
that after the service of notice of the commencement of a suit or other
final judgment granting Landlord possession of the Premises, Landlord may
receive and collect any sums of rent due, or any other sums of money due
under the terms of this Lease or otherwise exercise its rights, and
remedies hereunder. The payment of such sums of money, whether as rent or
otherwise, shall not waive said notice or in any manner affect any pending
suit or judgment theretofore obtained.
30. AUTHORITIES FOR ACTION AND NOTICE:
----------------------------------
(a) Except as otherwise provided herein, Landlord may, for any matter
pertaining to this Lease, act by and through its Building manager or
any other person designated in writing from time to time.
(b) All notices or demands required or permitted to be given to Landlord
hereunder shall be in writing, and shall be served by hand delivery or
by deposit in the United States mail, with proper postage prepaid,
certified or registered, return receipt requested, addressed as
follows:
LOEB PARTNERS REALTY & DEVELOPMENT CORP. AS AGENT FOR HANOVER
RESOURCES INC.
0000 XXXX XXXXXXXX XXXXXX, XXXXX 0000
XXXXXXXXX, XXXXXXXX 00000
With a copy to:
LOEB PARTNERS REALTY & DEVELOPMENT CORP.
000 XXXXX XXXXXX, XXXXX 0000
XXX XXXX, XXX XXXX 00000
All notices or demands required or permitted to be given to Tenant
hereunder shall be in writing and shall be served by hand delivery or
by deposit in the United States Mail, with proper postage prepaid,
certified or registered, return receipt requested, addressed to Tenant
at the Premises,
25
With a copy to:
N/A
-------------------------------
-------------------------------
-------------------------------
Either party shall have the right to designate in writing, served as
above provided, a different address to which notice is to be provided.
All notices or demands shall be deemed served on the day of delivery if
hand delivered, or three (3) days after deposit in the U.S. Mail, if
sent by registered or certified mail. The foregoing shall in no event
prohibit notice from being given as provided by the federal or state
Rules of Civil Procedure, as the same may be amended from time to time.
31. LIABILITY OF LANDLORD: Landlord's liability under this Lease shall be
---------------------
limited to Landlord's estate and interest in the Building (or to the
proceeds thereof) and no other property or other assets of Landlord or its
partners (if Landlord is a partnership), agents, employees, legal
representatives, successors or assigns, shall be subject to levy, execution
or other enforcement procedure for the satisfaction of Tenant's remedies
under or with respect to this Lease, the relationship of Landlord and
Tenant hereunder or Tenant's use and occupancy of the Premises. Nothing
contained in this Paragraph shall be construed to permit Tenant to offset
against rents due a successor landlord, a judgment (or other judicial
process) requiring the payment of money by reason of any default of a prior
landlord, except as otherwise specifically set forth herein.
32. BROKERAGE: Tenant represents and warrants that it has dealt only with
---------
XXXXXXXX XXXX COMPANY AS AGENT FOR LANDLORD AND THE XXX COMPANIES AS AGENT
--------------------------------------------------------------------------
FOR TENANT (the "Broker") in the negotiation of this Lease. Landlord shall
----------
make payment of the brokerage fee due to the Broker pursuant to and in
accordance with Landlord's separate agreement with the Broker. Tenant
hereby agrees to indemnify and hold the Landlord harmless of and from any
and all loss, costs, damages or expenses (including, without limitation,
all attorneys' fees and disbursements) by reason of any claim of or
liability to any other broker or person claiming through Tenant and arising
out of or in connection with the negotiation, execution and delivery of
this Lease. Additionally, Tenant acknowledges and agrees that Landlord
shall have no obligation for payment of any brokerage fee or similar
compensation to any person with whom Tenant has dealt or may in the future
deal with respect to leasing of any additional or expansion space in the
Building or renewals or extensions of this Lease. In the event any claim
shall be made against Landlord by any other broker who shall claim to have
negotiated this Lease on behalf of Tenant or to have introduced Tenant to
the Building or to Landlord, Tenant shall be liable for payment of all
reasonable attorneys' fees, costs and expenses incurred by Landlord in
defending against the same, and in the event such broker or other person
shall be successful in any such action, Tenant shall, in addition, make
payment to such Broker.
33. TAXES:
-----
(a) Tenant shall be liable for and shall pay at least ten (10) days before
delinquency and Tenant hereby agrees to indemnify and hold Landlord
harmless from and against any liability in connection with, all taxes
levied against any personal property, fixtures, machinery, equipment,
apparatus, systems and appurtenances placed by or on behalf of Tenant
in or about or utilized by Tenant in, upon or in connection with the
Premises ("Equipment Taxes"). If any Equipment Taxes are levied against
Landlord or Landlord's property or if the assessed value of Landlord's
property is increased by the inclusion therein of a value placed upon
such personal property, fixtures, machinery, equipment, apparatus,
systems or appurtenances of Tenant, and if Landlord, after written
notice to Tenant, pays the Equipment Taxes or taxes based upon such an
increased assessment (which Landlord shall have the right to do
regardless of the validity of such levy, but under proper protest if
requested by Tenant prior to such payment and if payment under protest
is permissible), Tenant shall pay to Landlord upon demand, as
Additional Rent hereunder, the taxes so levied against Landlord or the
proportion of such taxes resulting from such increase in the
assessment; provided, however, that in any such event, Tenant shall
have the right, on behalf of Landlord and with Landlord's full
cooperation, but at no cost to Landlord, to bring suit in any court of
competent
26
jurisdiction to recover the amount of any such tax so paid under
protest, and any amount so recovered shall belong to Tenant (provided
Tenant has previously paid such amount to Landlord). Notwithstanding
the foregoing to the contrary, Tenant shall cooperate with Landlord to
the extent reasonably necessary to cause the fixtures, furnishings,
equipment and other personal property to be assessed and billed
separately from the real property of which the Premises form a part,
and Landlord shall use reasonable efforts to treat all other Tenants
on the same basis.
(b) Tenant shall pay to Landlord, as Additional Rent, any excise, sales,
privilege or other tax, assessment or other charge (other than income
or franchise taxes) imposed, assessed or levied by any governmental or
quasi-governmental authority or agency upon Landlord on account of
this Lease, the rent or other payments made by Tenant hereunder, any
other benefit received by Landlord hereunder, Landlord's business as a
lessor hereunder, or other in respect of or as a result of the
agreement or relationship of Landlord and Tenant hereunder.
35. RIGHTS RESERVED TO LANDLORD:
---------------------------
(a) All portions of the Building are reserved to Landlord except the
Premises and the inside surfaces of all walls, windows and doors
bounding in the Premises, but including exterior building walls, core
corridor walls and doors and any core corridor entrance. Landlord also
reserves any space in or adjacent to the Premises used for shafts,
stacks, pipes, conduits, fan rooms, ducts, electric or other
utilities, sinks or other Building facilities, and the use thereof, as
well as the right to access thereto through the Premises for the
purposes of operation, maintenance and repair.
(b) Landlord shall have the following rights without liability to Tenant
for damage or injury to property, person or business (all claims for
damage being hereby waived and released), and without effecting an
eviction or disturbance of Tenant's use or possession of the Premises
or giving rise to any claim for setoffs or abatement of rent:
(1) To enter the Premises as more fully provided in this Lease.
(2) To install and maintain signs on the exterior and interior of the
Building, except within the Premises, provided the signs do not
block either completely or partially the exterior windows of the
Premises.
(3) To have pass keys to the Premises.
(4) To have access to all mail chutes according to the rules of the
United States Postal Service.
(5) To do or permit to be done any work in or about the exterior of
the Building or any adjacent or nearby building, land, street or
alley.
27
(6) To grant to anyone the exclusive right to conduct any business or
render any service in the Building, provided such exclusive right
shall not operate to exclude Tenant from the use expressly permitted
by this Lease.
36. FORCE MAJEURE CLAUSE: Wherever there is provided in this Lease a time
--------------------
limitation for performance by Landlord of any obligation, including but not
limited to obligations related to construction, repair, maintenance or
service, the time provided for shall be extended for as long as and to the
extent that delay in compliance with such limitation is due to accident,
unavailability of employees, strikes, lockouts, riots, an act of God,
governmental control or other factors beyond the reasonable control of
Landlord.
37. SIGNAGE:
--------
(a) No sign, advertisement or notice shall be inscribed, painted or
affixed on any part of the inside or outside of the Building unless of
such color, size and style and in such place upon or in the Building
as shall be first designated by Landlord, but there shall be no
obligation or duty on Landlord to allow any sign, advertisement or
notice to be inscribed, painted or affixed on any part of the inside
or outside of the Building. A directory in a conspicuous place, with
the names of Tenant, not to exceed names, shall be provided by
Landlord on a one time basis. Any necessary revision to such directory
shall be made by Landlord, at Tenant's expense, within a reasonable
time, after written notice from Tenant of the change making the
revision necessary. Landlord shall have the right to remove all non-
permitted signs without notice to Tenant and at the expense of Tenant.
(b) Tenant shall only be permitted to install building standard signs and
logos, subject to Landlord's prior written consent and criteria as to
size, design, materials and location.
38. ATTORNEYS' FEES: In the event of any dispute hereunder, or any default in
---------------
the performance of any term or condition of this Lease, the prevailing
party shall be entitled to recover all costs and expenses associated
therewith, including reasonable attorneys' fees.
39. HAZARDOUS MATERIALS:
-------------------
(a) Tenant shall not cause or permit any Hazardous Material to be brought
upon, kept, or used in or about the Premises by Tenant, its agents,
employees, contractors, licensees or invitees, without the prior
written consent of Landlord (which Landlord shall not unreasonably
withhold as long as Tenant demonstrates to Landlord's reasonable
satisfaction that such Hazardous Material is necessary or useful to
Tenant's business and will be used, kept and stored in a manner that
complies with all laws regulating any such Hazardous Material so
brought upon or used or kept in or about the Premises). If Tenant
breaches the obligations stated in the preceding sentence, or if the
presence of Hazardous Material on the Premises caused or permitted by
Tenant results in contamination of the Premises or Building Complex,
or any part thereof, or if contamination of the Premises or Building
Complex by Hazardous Material otherwise occurs for which Tenant is
legally liable, then Tenant shall indemnify, defend and hold Landlord,
its agents, employees, legal representatives, successors and assigns,
harmless from any and all claims, judgments, damages, penalties,
fines, costs, liabilities, or losses (including, without limitation,
diminution in value of the Premises and Building Complex, damages for
the loss or restriction on use of any rentable or usable space or of
any amenity of the Premises or Building Complex, damages arising from
any adverse impact on marketing of space in the Building, and sums
paid in settlement of claims, attorneys' fees, consultant fees and
expert fees) which arise during or after the Lease term as a result of
such contamination. This indemnification of Landlord by Tenant
includes, without limitation, costs incurred in connection with any
investigation of site conditions or any cleanup, remedial, removal or
restoration work required by any federal, state, or local governmental
agency or political subdivision because of Hazardous Material present
in or about the Building Complex or the soil or ground water on or
under the Building Complex. Without limiting the foregoing, if the
presence of any Hazardous Material on or about the Building Complex
caused or permitted by Tenant results in any contamination of any
portion thereof, Tenant shall promptly take all actions at its sole
expense as are necessary to return the Building Complex to the
condition existing prior to
28
the introduction of any such Hazardous Material, subject to obtaining
Landlord's prior written consent to the actions to be taken by Tenant.
Landlord may properly require its consent to the selection of the
contractors and other experts involved in the inspection, testing and
removal or abatement activities, the scope of activities to be
performed, the manner arid method for performance of such activities,
and such other matters as may be required or requested by Landlord for
the safety of and continued use of the Building Complex and all
occupants thereof. Tenant agrees that it, and not Landlord, is
responsible for the use of the Premises 1br purposes of all
notification and reporting requirements under all Hazardous
Material(s) laws, and agrees to comply in all respects with the same.
The obligations and liabilities of Tenant herein shall survive
expiration or termination of this Lease.
(b) "Hazardous Material", as used in this Lease, shall be construed in its
broadest sense and shall include asbestos, other asbestotic material
(which is currently or may be designated in the future as a Hazardous
Material), any petroleum base products, pesticides, paints and
solvents, polychlorinated biphenyl, lead, cyanide, DDT, acids,
ammonium compounds and other chemical products (excluding commercially
used cleaning materials in ordinary quantities) and any substance or
material if defined or designated as a hazardous or toxic substance,
or other similar term, by any federal, state or local law, statute,
regulation, or ordinance affecting the Building Complex or Premises
presently in effect or that may be promulgated in the future, as such
statutes, regulations and ordinances may be amended from time to time.
40. BANKRUPTCY OR INSOLVENCY: If the Tenant becomes a debtor under Chapter 7 of
------------------------
the United States Bankruptcy Code, or in the event that a petition for
reorganization or adjustment of debts is filed concerning the Tenant under
Chapter 11 or Chapter 13 of the Bankruptcy Code, or a proceeding filed
under Chapter 7 is transferred to Chapter 11 or 13, the Trustee or the
Tenant, as Debtor-in-Possession, shall be deemed to have rejected this
Lease. No election by the Trustee or Debtor-in-Possession to assume this
Lease shall be effective unless each of the following conditions, which
Landlord and Tenant hereby acknowledge to be commercially reasonable in the
context of a bankruptcy proceeding, has been satisfied, and the Landlord
has so acknowledged in writing:
(a) The Trustee or Debtor-in-Possession has cured, or has provided the
Landlord "adequate assurance" (as hereinafter defined) that from the
date of such assumption, the Trustee or Debtor-In-Possession will
promptly cure all monetary and non-monetary defaults under this Lease.
(b) The Trustee or Debtor-in-Possession has compensated, or has provided
to the Landlord adequate assurance that within ten (10) days of the
date of assumption, the Landlord will be compensated, for any
pecuniary loss incurred by the Landlord arising from default of the
Tenant, the Trustee or the Debtor-in-Possession as recited in the
Landlord's written statement of pecuniary loss sent to the Trustee or
Debtor-in-Possession.
(c) The Trustee or Debtor-in-Possession has provided the Landlord with
adequate assurance of future performance of each of the Tenant's, the
Trustee's, or Debtor-in-Possession's obligations under this Lease;
provided, however, that
(1) The Trustee or Debtor-in-Possession shall also deposit with the
Landlord, as security for the timely payment of rent and other
sums due hereunder, an amount equal to three months Base Rent,
Additional Rent and other monetary charges accruing under this
Lease; and
(2) The obligations imposed upon the Trustee or Debtor-in-Possession
shall continue with respect to the Tenant or any assignee of this
Lease after the completion of the bankruptcy proceedings.
(d) For purposes of this Paragraph, Landlord and Tenant acknowledge that,
in the context of the bankruptcy proceeding of the Tenant, at a
minimum, "adequate assurance" shall mean:
29
(1) The Trustee or Debtor-in-Possession will continue to have
sufficient unencumbered assets after the payment of all secured
obligations and administrative expenses to assure the Landlord
that the Trustee or Debtor-in-Possession will have sufficient
funds to fulfill all of the obligations of Tenant under this
Lease; or
(2) The Bankruptcy Court shall have entered an order segregating
sufficient cash payable to the Landlord, and the Trustee or
Debtor-in-Possession shall have granted to the Landlord a valid
and perfected first lien and security interest or mortgage in
property of the Tenant, the Trustee or Debtor-in-Possession,
acceptable as to value and kind to the Landlord, in order to
secure to the Landlord the obligation of the Tenant, Trustee or
Debtor-in-Possession to cure the monetary or non-monetary
defaults under the Lease within the time period set forth above.
(e) The following conditions shall apply to any assignment of this Lease
in Bankruptcy Proceedings:
(1) If the Trustee or Debtor-in-Possession has assumed this Lease and
elects to assign the Lease to any other person, such interest or
estate of Tenant in this Lease may be so assigned only if the
Landlord has acknowledged in writing that the intended assignee
can provide to the Landlord "adequate assurance of future
performance" (as herein-after defined) of all of the terms,
covenants and conditions of this Lease to be performed by the
Tenant.
(2) For the purposes of this provision, Landlord and Tenant
acknowledge that, in the context of a bankruptcy proceeding, at a
minimum, "adequate assurance of future performance" shall mean
that each of the following conditions has been satisfied, and the
Landlord has so acknowledged in writing:
A. The proposed assignee has submitted a current financial
statement audited by a Certified Public Accountant which
shows the net worth and working capital and amounts
determined by Landlord to be sufficient to assure the future
performance by such assignee of all of Tenant's obligations
under this Lease;
B. The proposed, assignee, if requested by the Landlord, shall
have obtained guarantees in form and substance satisfactory
to the Landlord from one or more persons who satisfy the
Landlord's standards of creditworthiness;
C. The Landlord has obtained all consents or waivers from any
third party required under any lease, mortgage, financing
arrangement, or other agreement by which the Landlord is
bound, in order to permit the Landlord to consent to such
assignment.
41. MISCELLANEOUS:
--------------
(a) The rules and regulations attached hereto as Exhibit F, as well as
such rules and regulations as may hereafter be adopted by Landlord for
the safety, care and cleanliness of the Premises and the Building and
the preservation of good order thereon, are hereby expressly made a
part hereof, and Tenant agrees to obey all such rules and regulations.
The violation of any of such rules and regulations by Tenant shall be
deemed a breach of this Lease by Tenant affording Landlord all the
remedies set forth herein. Landlord shall not be responsible to Tenant
for the nonperformance by any other tenant or occupant of the Building
of any of said rules and regulations.
(b) The term "Landlord" as used in this Lease, so far as covenants or
obligations on the part of Landlord are concerned, shall be limited to
mean and include only the owner or owners of the Building at the time
in question, and in the event of any transfer or transfers of tie
title thereto, Landlord herein named (and in the case of any
subsequent transfers or conveyances, the then grantor) shall be
automatically released from and after the date of such transfer or
conveyance of
30
all liability in respect to the performance of any covenants or
obligations on the part of Landlord contained in this Lease thereafter
to be performed and relating to events occurring thereafter, provided
that any funds in the hands of Landlord or the then grantor at the
time of such transfer in which Tenant has an interest shall be turned
over to the grantee, and any amount then due and payable to Tenant by
Landlord or the then grantor under any provisions of this Lease shall
be paid to Tenant.
(c) As used in this Lease, the term "ordinary business hours" shall mean
the hours from 7:00 a.m. to 6:00 p.m., Monday through Friday, and 9:00
a.m. to 1:00 p.m. on Saturday, except for New Years Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day, Christmas Day, and any
other national or state holiday as may be established from time to
time ("Holidays").
(d) This Lease shall be construed as though the covenants herein between
Landlord and Tenant are independent and not dependent and Tenant shall
not be entitled to any setoff of the rent or other amounts owing
hereunder against Landlord, if Landlord fails to perform its
obligations set forth herein, except as herein specifically set forth;
provided, however, the foregoing shall in no way impair the right of
Tenant to commence a separate action against Landlord for any
violation by Landlord of the provisions hereof so long as notice is
first given to Landlord and any holder of a mortgage or deed of trust
covering the Building Complex or any portion thereof whose address
Tenant has been notified in writing and so long as an opportunity has
been granted to Landlord and such holder to correct such violation as
provided in Paragraph 41 (h) hereof.
(e) If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws effective during the term
of this Lease, then and in that event, it is the intention of the
parties hereto that the remainder of this Lease shall not be affected
thereby, and it is also the intention of the parties to this Lease
that in lieu of each clause or provision of this Lease that is
illegal, invalid or unenforceable, there shall be added as a part of
this Lease a clause or provision as similar in terms to such illegal,
invalid or unenforceable clause or provision as may be possible arid
be legal, valid and enforceable, provided such addition does not
increase or decrease the obligations of or derogate from the rights or
powers of either Landlord or Tenant.
(f) The captions of each paragraph are added as a matter of convenience
only and shall be considered of no effect in the construction of any
provision or provisions of this Lease.
(g) Except as herein specifically set forth, all terms, conditions and
covenants to be observed and performed by the parties hereto shall be
applicable to and binding upon their respective heirs, administrators.
executors, successors and assigns. The terms, conditions and covenants
hereof shall also be considered to be covenants running with the land.
(h) Except as otherwise specifically provided herein, in the event
Landlord shall fail to perform any of the agreements, terms, covenants
or conditions hereof on Landlord's part to be performed, and such
nonperformance shall continue for a period of thirty (30) days after
written notice thereof, from Tenant to Landlord, or if such
performance cannot be reasonably had within such thirty (30) day
period, and Landlord shall not in good faith have commenced such
performance within such thirty (30) day period and proceed therewith
to completion, it shall be considered a default of Landlord under this
Lease. Tenant shall give written notice to Landlord in the matter
herein set forth and shall afford Landlord a reasonable opportunity to
cure any such default. In addition, Tenant shall send notice of such
default by certified or registered mail, with proper postage prepaid,
to the holder of any mortgages or deeds of trust covering the Building
Complex or any portion thereof of whose address Tenant has been
notified in writing and shall afford such holder a reasonable
opportunity to cure any alleged default on Landlord's behalf.
(i) If there is more than one entity or person which or who are the
Tenants under this Lease, the obligations imposed upon Tenant under
this Lease shall be joint and several. Further, the obligations of
Tenant under this Lease shall be guaranteed in accordance with and
by the
31
person(s) identified on the Guaranty of Lease attached hereto and
incorporate herein as Exhibit G.
(j) No act or thing done by Landlord or Landlord's agent during the term
hereof, including but not limited to any agreement to accept surrender
of the Premises or to amend or modify this Lease, shall be deemed to
be binding upon Landlord unless such act or things shall be by an
officer of Landlord or a party designated in writing by Landlord as so
authorized to act. The delivery of keys to Landlord, or Landlord's
agent, employees or officers shall not operate as a termination of
this Lease or a surrender of the Premises. No payment by Tenant or
receipt by Landlord of a lesser amount than the monthly rent herein
stipulated shall be deemed to be other than on account of the earliest
stipulated rent, nor shall any endorsement or statement on any check
or any letter accompanying any check or payment as rent be deemed an
accord and satisfaction and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance of such
rent or pursue any other remedy available to Landlord.
(k) Landlord shall have the right to construct other buildings or
improvements in any Common Area, or any other area designated by
Landlord for use by tenants or to change the location, character or
make alterations of or additions to any of said common areas or other
areas. Landlord, during the entire term of this Lease, shall have the
right to change the number and name of the Building at any time
without liability to Tenant.
(l) Tenant acknowledges and agrees that it has not relied upon any
statements representations, agreements or warranties, except such as
are expressed in this Lease.
(m) Notwithstanding anything to the contrary contained herein, Landlord's
liability under this Lease shall be limited to its interests in this
building.
(n) Time is of the essence with respect to the performance of every
provision of this Lease in which time of performance is a factor,
including specifically and without limitation, Tenant's obligation to
make any payments or give any notices.
(o) Tenant and Landlord and the party executing this Lease on behalf of
each of them represent to each other that such party is authorized to
do so by requisite action of the board of directors or partners, as
the case may be, and agree upon request to deliver to each other a
resolution or similar document to that effect.
(p) This Lease shall be governed by and construed in accordance with the
laws of the State where the Premises are located.
(q) This Lease, together with Exhibits A, B, C, D, E, F and the Lease
Addendum attached as Exhibit H, contains the entire agreement of the
parties and may not be amended or modified in any manner except by an
instrument in writing signed by both parties. Tenant shall not record
this Lease or a memorandum hereof.
(r) Tenant shall not use the name of the Building, the Building Complex or
the development in which the Building is situated as part of its legal
or trade name, nor for any purpose other than as an address for the
business to be conducted by Tenant in the Premises.
(s) In the event Landlord makes available to Tenant and its employees any
area of the Building Complex for use as an athletic/health facility,
Tenant agrees, on behalf of itself and its employees, that Landlord
shall have no liability for any damages or injuries incurred by any
person as a result of the use of such facility.
(t) The submission or delivery of this document for examination and review
does not constitute an option, an offer to lease space in the Building
or an agreement to lease. This document shall have no binding effect
on the parties unless and until executed by both Landlord and Tenant.
32
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease the day and
year first above written.
LANDLORD:
LOEB PARTNERS REALTY & DEVELOPMENT
__________________________________
CORP., as agent for HANOVER RESOURCES INC.
__________________________________________
a COLORADO CORPORATION
__________________________________________
BY: /s/ [SIGNATURE ILLEGIBLE]
______________________________________
TITLE: ___________________________________
LANDLORD NOTARY
---------------
STATE OF ______________)
COUNTY OF _____________)
The foregoing instrument was acknowledged before me this __ day of
________, 19__, by ________________ as ________________ of ________________, a
________________.
Witness my hand and official seal.
My commission expires: ________________.
__________________________________________
Notary Public
Address:__________________________________
__________________________________________
__________________________________________
TENANT:
COLORADO BUSINESS BANK
__________________________________________
ATTEST: A COLORADO CORPORATION
__________________________________________
By: ____________________ BY: /s/ XXXXX X. XXXXX
______________________________________
XXXXX X. XXXXX
Title: _________________ TITLE: PRESIDENT/TECH CENTER
___________________________________
TENANT NOTARY
-------------
STATE OF Colorado)
COUNTY OF Jefferson)
The foregoing instrument was acknowledged before me this 10th day of
July, 1998, by Xxxxx X. Xxxxx as ________________ of ________________, a
________________.
Witness my hand and official seal.
My commission expires: October 21, 2001.
[SIGNATURE ILLEGIBLE]
__________________________________________
Notary Public
Address: 0000 X. Xxxxxx Xxxxxx
__________________________________
Xxxxxxxxx, XX 00000
__________________________________________
33
EXHIBIT A
DESCRIPTION OF PREMISES
34
EXHIBIT B
LEGAL DESCRIPTION
The land referred to in this Lease is described as follows:
PARCEL 1:
A PARCEL OF LAND LYING IN XXX 0. XXXXX 0, X XXXXXXXXXXXXX XX XXXXX 0, XXXXXX
TECHNOLOGICAL CENTER FILING XX.0, XXXXX 0, XXXXXX TECHNOLOGICAL FILING XX.0, X
XXXX XX XXXX 0 XXX 0, XXXXX 5, A SUBDIVISION OF SECTION 16 AND A PART OF VACATED
S. WABASH ST. SITUATED IN SECTION 16, TOWNSHIP 5 SOUTH, RANGE 67 WEST OF THE
6TH PRINCIPAL MERIDIAN, CITY OF XXXXXXXXX XXXXXXX, XXXXXX XX XXXXXXXX, XXXXX XX
XXXXXXXX, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHWEST CORNER OF SAID LOT 1, THENCE NORTHERLY ALONG THE
WEST LINE OF SAID LOT 1 A DISTANCE OF 170.52 FEET TO THE TRUE POINT OF
BEGINNING; THENCE CONTINUING ALONG LAST SAID COURSE A DISTANCE OF 181.72 FEET TO
A POINT OF CURVE; THENCE ALONG THE ARC OF SAID CURVE TO THE RIGHT, HAVING A
RADIUS OF 140.00 FEET AND A CENTRAL ANGLE OF 103 DEGREES 28 MINUTES 07 SECONDS A
DISTANCE OF 252.82 FEET TO A POINT OF TANGENT; THENCE CONTINUING ALONG THE
BOUNDARY OF SAID LOT 1 FOLLOWING FOUR (4) COURSES:
(1) ALONG SAID TANGENT A DISTANCE OF 198.OO FEET TO A POINT OF CURVE;
(2) ALONG THE ARC OF SAID CURVE TO THE RIGHT, HAVING A RADIUS OF 220.00 FEET AND
A CENTRAL ANGLE OF 73 DEGREES 49 MINUTES 32 SECONDS, A DISTANCE OF 283.47 FEET
TO A POINT OF TANGENT;
(3) ON AN ANGLE TO THE LEFT OF 180 DEGREES 00 MINUTES 00 SECONDS ALONG THE
BACKWARD EXTENSION OF SAID TANGENT A DISTANCE OF 136.09 FEET;
(4) ON AN ANGLE TO THE RIGHT OF 89 DEGREES 17 MINUTES 02 SECONDS A DISTANCE OF
18.28 FEET TO A POINT ON A CURVE;
THENCE DEPARTING SAID BOUNDARY OF LOT 1 ON AN ANGLE TO THE RIGHT OF 75 DEGREES
25 MINUTES 05 SECONDS AND ALONG THE ARC OF SAID CURVE TO THE RIGHT, HAVING A
RADIUS OF 75.00 FEET AND A CENTRAL ANGLE OF 12 DEGREES 17 MINUTES 53 SECONDS, A
DISTANCE OF 16.10 FEET TO A POINT OF TANGENT; THENCE ALONG SAID TANGENT A
DISTANCE OF 163.26 FEET; THENCE ON AN ANGLE TO THE RIGHT OF 90 DEGREES 00
MINUTES 00 SECONDS PARALLEL WITH THE SOUTH LINE OF SAID LOT 1 DISTANCE OF 556.30
FEET TO THE TRUE POINT OF THE BEGINNING.
PARCEL II:
A PARCEL OF LAND BEING A PORTION OF EAST PRENTICE AVENUE AS SHOWN AND DEDICATED
BY THE PLAT A RESUBDIVISION OF BLOCK 7, DENVER TECHNOLOGICAL CENTER FILING
140.2, BLOCK 2, DENVER TECHNOLOGICAL FILING XX.0, X XXXX XX XXXX X XXX 0, XXXXX
5, A SUBDIVISION OF SECTION 16 AND A PART OF VACATED S. WABASH ST., SITUATED IN
THE NORTHEAST ONE-QUARTER OF SECTION 16, TOWNSHIP 5 SOUTH, RANGE 67 WEST OF THE
6TH PRINCIPAL MERIDIAN, CITY OF XXXXXXXXX XXXXXXX, XXXXXX XX XXXXXXXX, XXXXX XX
XXXXXXXX, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
35
COMMENCING AT THE NORTHEAST CORNER OF SAID SECTION 16; THENCE WESTERLY ALONG
THE NORTH LINE OF SAID SECTION 16 A DISTANCE OF 1270.86 FEET TO THE CENTERLINE
OF SOUTH TAMARAC PARKWAY; THENCE ON AN ANGLE TO THE LEFT OF 89 DEGREES 16
MINUTES 04 SECONDS, ALONG SAID CENTERLINE, A DISTANCE OF 1647.74 FEET TO THE
INTERSECTION OF SAID CENTERLINE WITH THE EASTERLY EXTENSION OF THE NORTH
BOUNDARY LINE OF XXX 0, XXXXX 0 XX XXXX XXXXXXXXXXX; THENCE ON AN ANGLE TO THE
RIGHT OF 89 DEGREES 17 MINUTES 02 SECONDS, ALONG SAID EXTENSION AND THE NORTH
LINE OF SAID LOT 1 A DISTANCE OF 71.72 FEET TO THE TRUE POINT OF BEGINNING;
THENCE CONTINUING ALONG LAST SAID COURSE, ALONG THE BOUNDARY LINE OF SAID LOT 1
A DISTANCE OF 18.28 FEET; THENCE ON AN ANGLE TO THE LEFT OF 89 DEGREES 17
MINUTES 02 SECONDS ALONG SAID BOUNDARY LINE, ALONG A LINE 40 FEET WESTERLY FROM
AND PARALLEL WITH THE EAST LINE OF SAID LOT 1, A DISTANCE OF 136.09 FEET TO A
POINT ON A CURVE, THE CHORD OF SAID CURVE AND THE SOUTHERLY EXTENSION OF LAST
SAID COURSE FORMS AN ANGLE TO THE RIGHT OF 143 DEGREES 05 MINUTES 14 SECONDS;
THENCE ALONG THE ARC OF SAID CURVE TO THE LEFT, HAVING A RADIUS OF 220.00 FEET
AND A CENTRAL ANGLE OF 73 DEGREES 49 MINUTES 32 SECONDS, A DISTANCE OF 283.47
FEET TO A POINT OF TANGENT; THENCE ALONG SAID TANGENT A DISTANCE OF 23.69 FEET
TO A POINT ON A CURVE, THE CHORD OF SAID CURVE AND THE WESTERLY EXTENSION OF
LAST SAID FORMS AN ANGLE TO THE RIGHT OF 173 DEGREES 38 MINUTES 56 SECONDS;
THENCE ALONG THE ARC OF SAID CURVE TO THE LEFT, HAVING A RADIUS OF 601.00 FEET
AND A CENTRAL ANGLE OF 12 DEGREES 42 MINUTES 07 SECONDS, A DISTANCE OF 133.24
FEET TO A POINT OF REVERSE CURVE; THENCE ALONG THE ARC OF SAID REVERSE CURVE TO
THE RIGHT HAVING A RADIUS OF 75.00 FEET AND A CENTRAL ANGLE OF 74 DEGREES 13
MINUTES .46 SECONDS A DISTANCE OF 97.17 FEET TO THE TRUE POINT OF BEGINNING.
PARCEL III:
AN ACCESS EASEMENT LOCATED IN XXX 0, XXXXX 0, X XXXXXXXXXXXXX XX XXXXX 0, XXXXXX
TECHNOLOGICAL CENTER FILING 2, BLOCK, DENVER TECHNOLOGICAL FILING XX.0, X XXXX
XX XXXX 0 XXX 0, XXXXX 5, A SUBDIVISION OF SECTION 16 AND A PART OF VACATED S.
WABASH ST. SITUATED IN SECTION 16, TOWNSHIP 5 SOUTH, RANGE 67 WEST OF THE 6TH
PRINCIPAL MERIDIAN, CITY OF XXXXXXXXX XXXXXXX, XXXXXX XX XXXXXXXX, XXXXX XX
XXXXXXXX, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE XXXXXXXXX XXXXXX XX XXXX XXX 0, XXXXX 4; THENCE NORTHERLY
ALONG THE WEST LINE OF SAID LOT 1 A DISTANCE OF 155.50 FEET TO THE TRUE POINT OF
BEGINNING; THENCE CONTINUING ALONG LAST SAID COURSE, ALONG SAID WEST LINE A
DISTANCE OF 15.02 FEET TO A POINT 170.33 FEET, AS MEASURED AT RIGHT ANGLES,
NORTHERLY FROM THE SOUTH LINE OF SAID LOT 1, THENCE ON AN ANGLE TO THE RIGHT OF
87 DEGREES 17 MINUTES 39 SECONDS, PARALLEL WITH SAID SOUTH LINE A DISTANCE OF
556.30 FEET; THENCE ON AN ANGLE TO THE RIGHT OF 90 DEGREES 00 MINUTES 00 SECONDS
A DISTANCE OF 15.00 FEET; THENCE ON AN ANGLE TO THE RIGHT OF 90 DEGREES 00
MINUTES 00 SECONDS PARALLEL WITH THE SOUTH LINE OF SAID LOT 1 A DISTANCE OF
557.01 FEET TO THE TRUE POINT OF BEGINNING.
THE PROPERTY LEGALLY DESCRIBED ABOVE IS COMMONLY KNOWN AS 0000 XXXX XXXXXXXX
XXXXXX, XXXXXXXXX, XXXXXXXX 00000.
36
EXHIBIT C
ESTOPPEL AND COMMENCEMENT DATE CERTIFICATE
THIS ESTOPPEL AND COMMENCEMENT DATE CERTIFICATE ("Certificate") is
executed this ___ day of ________, 19__, by HANOVER RESOURCES INC., A COLORADO
---------------------- ----------
CORPORATION ("Landlord") COLORADO BUSINESS BANK NA. a COLORADO CORPORATION
----------- -------------------------- --------------------
("Tenant") with respect to and forming a part of that certain Office Building
Lease ("Lease") dated ________, 19__, for the premises commonly known as
SUITE 150 ("Premises").
---------
WITNESSETH
WHEREAS, the parties desire to reaffirm and/or amend and certify to certain
provisions of the Lease; and
WHEREAS, the parties desire that the matters set forth herein be conclusive
and binding on the parties.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. The Lease Commencement Date is deemed and agreed to be ________, 19__,
and the Lease Termination Date is agreed and deemed to be ________, 19__,
unless sooner terminated, as provided therein.
2. Tenant's first installment of Base Rent in the amount of ______________
Dollars ($______) for the period of _______________ (is due on) (was paid on),
________, 19__.
3. Tenant's first installment of Tenant's Pro Rata Share of Operating
Expenses in the amount of _____________ Dollars ($______) (is due on) (was paid
on) ________, 19__.
4. On ________, 19__, Tenant deposited with Landlord a security deposit
in the form of ______________, in the amount of ___________ Dollars ($______).
5. By execution hereof, Tenant acknowledges and agrees that all
improvements or other work required of Landlord has been satisfactorily
performed and Tenant hereby accepts the Premises in full compliance with the
terms and conditions of the Lease.
6. Except as maybe amended herein, all terms and conditions of the Lease
shall continue in full force and effect and are hereby republished, ratified and
reaffirmed in their entirety.
7. This Certificate shall be binding upon and maybe relied upon by the
parties hereto and their respective legal representatives, successors and
assigns.
37
IN WITNESS WHEREOF, the parties have executed this Certificate as of the
day and year first above written.
LANDLORD:
LOEB PARTNERS REALTY & DEVELOPMENT
__________________________________
CORP., as agent for HANOVER RESOURCES INC.
__________________________________________
BY:
______________________________________
TITLE: ___________________________________
TENANT:
COLORADO BUSINESS BANK
__________________________________________
A COLORADO CORPORATION
__________________________________________
ATTEST:
BY:
By: ____________________ ______________________________________
XXXXX X. XXXXX
TITLE: PRESIDENT/TECH CENTER
Title: _________________ ___________________________________
LANDLORD NOTARY
---------------
STATE OF ______________)
COUNTY OF _____________)
The foregoing instrument was acknowledged before me this __ day of
________, 19__, by ________________ as ________________ and ________________
as ________________ of ________________, a ________________.
Witness my hand and official seal.
My commission expires: ________________.
__________________________________________
Notary Public
Address:__________________________________
__________________________________________
__________________________________________
33
TENANT NOTARY
-------------
STATE OF __________)
COUNTY OF _________)
The foregoing instrument was acknowledged before me this ____ day of
________, 19__, by ______________ as ________________ and ________________ as
________________ of ________________, a ________________.
Witness my hand and official seal.
My commission expires: ________________.
__________________________________________
Notary Public
Address: _________________________________
__________________________________________
__________________________________________
39
EXHIBIT D
WORK LETTER AGREEMENT
This Agreement supplements that certain lease (herein-after referred to as
the "Lease") dated and executed concurrently herewith by and between HANOVER
-------
RESOURCES INC., a COLORADO CORPORATION (hereinafter referred to as "Landlord")
-------------- --------------------
and COLORADO BUSINESS BANK N.A., a COLORADO CORPORATION (hereinafter referred
--------------------------- --------------------
to as "Tenant") with the terms defined in the Lease to have the same definition
where used herein.
Landlord agrees to improve the Premises in accordance with the plans and
specifications attached hereto as Exhibit D-1. Tenant shall be responsible for
all costs and expenses incurred as a result of any modifications, changes or
revisions to the plans requested by Tenant.
IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS WORK LETTER AGREEMENT
THIS ________ DAY OF ______________, 1998.
LANDLORD:
LOEB PARTNERS REALTY & DEVELOPMENT
__________________________________
CORP., as agent for HANOVER RESOURCES INC.
__________________________________________
BY: /s/ [SIGNATURE ILLEGIBLE]
______________________________________
TITLE: VP
___________________________________
TENANT:
a COLORADO BUSINESS BANK, N.A.
__________________________________________
A COLORADO CORPORATION
__________________________________________
ATTEST:
By: /s/ [SIGNATURE ILLEGIBLE] BY: /s/ XXXXX X. XXXXX
_________________________ ______________________________________
Title: NOTARY PUBLIC TITLE: PRESIDENT - DENVER TECH CENTER
______________________ ___________________________________
40
EXHIBIT D-1
PLANS AND SPECIFICATIONS
Landlord to provide the following tenant improvements:
-----------------------------------------------------
1. New Building Standard Carpet (Patcraft, New Jazz 30 oz.), Building Standard
Pad, and Rubber Base throughout Wood base to remain where existing.
2. Paint ad existing painted walls and all new walls. Where wallcovering is
removed due to demo, prep walls for paint. Paint all heat registers and door
frames.
3. Demo wall to 46"A.F.F. Provide and install new 12"W wood transaction top
approximately 9'-0" long. Provide divider to create two (2) equal
transaction surfaces. Demo wallcovering on this wall only.
4. Provide and install plastic laminate worksurface approximately 8'-0" x 30"W.
Install at 42" A.F.F.
5. Demo wall and door. Reuse door at Remove door and reuse at 7.
6. Remove door and reuse at 10. Provide an install new building standard door.
7. Provide and install building standard door.
8. Provide and install 3/8" tempered glass for conference room to 8'2" height,
approximately 8'-0" wide.
9. Demo wall. Install new building standard door.
10. Install building standard door from 6.
11. Provide and install new building standard door.
12. Ceiling tile repair where necessary and clean-up.
13. HVAC and fire protection.
14. New Building Standard wall.
THE XXXXXX BUILDING
0000 XXXX XXXXXXXX XXXXXX
Xxxxx 000
3,841 r.s.f.
41
EXHIBIT E
PARKING SCHEDULE
"Assigned parking spaces provided upon occupancy"
42
EXHIBIT F
RULES AND REGULATIONS
Landlord and Tenant agree that the following Rules and Regulations shall be
and hereby are made a part of this Lease, and Tenant agrees that Tenant's
employees and agents, or any others permitted by Tenant to occupy or enter the
Premises, will at all times abide by said Rules and Regulations:
1. The sidewalks, entries, passages, corridors, stairways and elevators of the
Building shall not be obstructed by Tenant, or Tenant's agents or
employees, or used for any purpose other than ingress to and egress from
the Premises.
2. Furniture, equipment or supplies will be moved in or out of the Building
only upon the elevator designated by Landlord and then only during such
hours and in such manner as may be prescribed by Landlord and upon no less
than forty-eight (48) hours prior notice to Landlord. Landlord shall have
the right to approve or disapprove the movers or moving company employed by
Tenant. Tenant shall cause the movers to use only the loading facilities
and elevator designated by Landlord. In the event Tenant's movers damage
the elevator or any part of the Building, Tenant shall forthwith pay to
Landlord the amount required to repair said damage. Tenant shall insure
that deliveries of materials and supplies to the Premises are made through
such entrances, elevators and corridors and at such times as may from time
to time be designated by Landlord, and shall promptly pay or cause to be
paid to Landlord the cost of repairing any damage in or to the Building or
Building Complex caused by any person making such deliveries.
3. No safe or other articles, the weight of which may in the opinion of
Landlord constitute a hazard or damage to the Building or Building's
equipment, shall be moved into the Premises.
4. Safes and other equipment, the weight of which is not excessive, shall be
moved into, from and about the Building only during such hours and in
such manner as shall be prescribed by Landlord; and Landlord shall have
the right to designate the location of such articles in the Premises.
5. During the entire term of this Lease, Tenant shall, at Tenant's expense,
install and maintain under each and every caster chair a chair pad or
Landlord approved carpet casters to protect the carpeting.
6. No sign, advertisement or notice shall be inscribed, painted or affixed on
any part of the inside or outside of the Building unless of such color,
size and style and in such place upon or in the Building, as shall be first
designated and approved in writing by Landlord, provided, however, there
shall be no obligation or duty on Landlord to allow any sign, advertisement
or notice to be inscribed, painted or affixed on any part of the inside or
outside of the Building except as otherwise provided in the Lease. No
furniture shall be placed in front of the Building or in any lobby or
corridor, without the prior written discretionary consent of Landlord.
Landlord shall have the right to remove all non-permitted signs and
furniture, without notice to Tenant, and at the expense of Tenant.
7. Tenant shall not do or permit anything to be done in the Premises, or bring
or keep anything therein which would in any way increase the rate of fire
insurance on the Building or on property kept therein, constitute a
nuisance or waste, or obstruct or interfere with the rights of other
tenants, or in any way injure or annoy them, or conflict with any of the
rules or ordinances of the Fire Department or of the Department of Health
of the City and County where the Building is located.
8. Tenant shall not employ any person or persons other than the BONDED janitor
------
of Landlord for the purpose of cleaning or taking care of the Premises,
without the prior written consent of Landlord. Landlord shall be in no way
responsible to Tenant for any loss of property from the premises, however
occurring, or for any damage done to Tenants furniture or equipment by the
janitor or any of janitor's staff, or by any other person or persons
whomsoever. The janitor of the building may at all times keep a pass key,
and other agents of Landlord shall at all times be allowed admittance to
the Premises.
43
9. Water closets and other water fixtures shall not be used for any purpose
other than that for which the same are intended, and any damage resulting
to the same from misuse on the part of Tenant, Tenant's agents or
employees, shall be paid for by Tenant. No person shall waste water by
tying back or wedging the faucets or in any other manner.
10. No animals EXCEPT HEARING AND SEEING EYE DOGS shall be allowed in the
----------------------------------
office, halls, corridors and elevators in the Building. No person shall
disturb the occupants of this or adjoining buildings or premises by the use
of any radio, sound equipment or musical instrument or by the making of
loud or improper noises.
11. No vehicles, including bicycles, shall be permitted in the offices, halls,
corridors, and elevators in the Building nor shall any vehicles be
permitted to obstruct the sidewalks or entrances of the Building.
12. Tenant shall not allow anything to be placed on the outside of the
Building, nor allow anything to be thrown by Tenant, Tenant's agents or
employees, out of the windows or doors, or down the corridors, elevator
shafts, or ventilating ducts or shafts of the Building. Tenant, except in
case of fire or other emergency, shall not open any outside window.
13. No additional lock or locks shall be placed by Tenant on any door in the
Building unless written consent of Landlord shall first have been obtained.
If, with Landlord's consent, Tenant installs lock(s) incompatible with the
Building Master Locking System: (a) Landlord, without abatement of rent,
shall be relieved of any obligation under this Lease to provide any service
to the affected areas which requires access thereto; (b) Tenant shall
indemnify Landlord against any expenses as a result of forced entry
thereto, which may be required in an emergency; and (c) Tenant shall at the
end of the term and at Landlord's request remove such lock(s) at Tenant's
expense. A reasonable number of keys to the toilet rooms if locked by
Landlord will be furnished by Landlord, and neither Tenant, Tenant's agents
or employees shall have any duplicate keys made. At the termination of this
tenancy, Tenant shall promptly return to Landlord all keys to offices,
toilet rooms or vaults. Landlord may from time to time install and change
locking mechanisms on entrances to the Building, Building Complex and the
Premises, and shall provide Tenant with two (2) sets of keys for each
lockset at no additional charge. If now or at any future time the locking
mechanisms of the Building Complex or Premises utilize "card keys," Tenant
shall deposit with Landlord the sum of $15.00 for each card key issued to
Tenant and Tenant's employees, as a deposit to be refunded to Tenant upon
return of the applicable card key.
14. No window shades, blinds, screens, draperies or other window coverings will
be attached or detached by Tenant without Landlord's prior written consent.
Tenant agrees to abide by Landlord's rules with respect to maintaining
uniform curtains, draperies and/or linings at all windows and hallways.
15. No awnings shall be placed over any window.
16. If Tenant desires telegraphic, telephonic or other electric connections,
Landlord or Landlord's agents will direct the electricians as to where and
how the wires may be introduced and without such directions, no boring or
cutting for wires will be permitted. Any such installation and connection
shall be made at Tenant's expense.
17. Tenant shall not install or operate any steam or gas engine or boiler, or
carry on any mechanical operation in the Premises. The use of oil, gas or
inflammable liquids for heating, lighting or any other purpose is expressly
prohibited. Explosives or other articles deemed extra hazardous shall not
be brought into the Building Complex.
18. Any painting or decorating as may be agreed to be done by and at the
expense of Landlord shall be done during regular weekday working hours.
Should Tenant desire such work on Saturdays, Sundays, holidays or outside
of regular working hours, Tenant shall pay for the extra cost thereof.
Tenant shall carry out Tenant's repair, maintenance, alterations and
improvements in the Premises only during times agreed to in advance by
Landlord and in a manner which will not interfere with the rights of the
other tenants in the Building or Building Complex.
44
19. Except as permitted by Landlord and except for normal office decorating,
Tenant shall not xxxx upon, paint signs upon, cut, drill into, drive nails
or screws into, or in any way deface the walls, ceilings, partitions or
floors of the Premises or of the Building, and any defacement, damage or
injury caused by Tenant Tenant's agents or employees, shall be paid for by
Tenant.
21. Tenant shall not obstruct or interfere with the rights of other tenants of
the Building, or of persons having business in the Building, or in any way
injure or annoy such tenants or persons.
22. Tenant shall not commit any act or permit anything in or about the Building
which shall or might subject Landlord to any liability or responsibility
for injury to any person or property by reason of any business or operation
being carried on in or about the Building or for any other reason.
23. Tenant shall not use the Building for lodging, sleeping, cooking, or for
any immoral or illegal purpose or for any purpose that will damage the
Building, or the reputation thereof, or for any purposes other than those
specified in the Lease.
24. Canvassing, soliciting, and peddling in the Building are prohibited, and
Tenant shall cooperate to prevent such activities.
25. Tenant shall not conduct mechanical or manufacturing operations, xxxx or
prepare food, or place or use any inflammable combustible explosive, or
hazardous fluid, chemical, device, substance or material in or about the
Building. Tenant shall comply with all statutes, ordinances, rules, orders,
regulations and requirements imposed by governmental or quasi-governmental
authorities in connection with fire and public safety and fire prevention
and shall not commit any act or permit any object to be brought or kept in
the Building, which shall result in a change of the rating of the Building
by the Insurance Services Officer or any similar person or entity.
26. Tenant shall not use the building for manufacturing or for the storage of
goods, wares or merchandise, except as such storage may be incidental to
the use of the Premises for general office purposes and except in such
portions of the Premises as may be specifically designated by Landlord for
such storage. Tenant shall not occupy the Building or permit any portion of
the Building to be occupied for the manufacture or direct sale of liquor,
narcotics, or tobacco in any form, or as a medical office, xxxxxx shop,
manicure shop, music or dance studio or employment agency. Tenant shall not
conduct in or about the Building any auction, public or private, without
the prior written approval of Landlord.
27. Tenant shall not use in the Building any machines, other than the standard
office machines such as typewriters, calculators, copying machines and
similar machines, without the express prior written consent of Landlord.
All office equipment and any other device of any electrical or mechanical
nature shall be placed by Tenant in the Premises in settings approved by
Landlord, so as to absorb or prevent any vibration, noise or annoyance.
Tenant shall not cause improper noises, vibrations, or odors within the
Building.
28. Tenant shall not deposit any trash, refuse, cigarettes, or other substances
of any kind within or out of the Building except in the refuse containers
provided therefore. Tenant shall not introduce into the Building any
substance which might add an undue burden to the cleaning or maintenance of
the Premises or the Building. Tenant shall exercise its best efforts to
keep the sidewalks, entrances, passages, courts, lobby areas, garages or
parking areas, elevators, escalators, stairways, vestibules, public
corridors and halls in and about the Building clean and free from rubbish.
29. Tenant shall use the Common Areas only as a means of ingress and egress,
and Tenant shall permit no loitering by any persons upon Common Areas or
elsewhere within the Building. The Common Areas and roof of the Building
are not for the use of the general public, and Landlord shall, in all
cases, retain the right to control or prevent access thereto by all persons
whose presence in the judgment of the Landlord, shall be prejudicial to the
safety, character, reputation or interests of the Building and its tenants.
Tenant shall not enter the mechanical rooms, air conditioning rooms,
electrical closets, or similar areas or go upon the roof of the Building
without the express prior written consent of Landlord. For purposes hereof,
"Common
45
Areas" shall mean all portions of the Building Complex which, subject to
the provisions of this Lease and Landlord's rules and regulations governing
such use, are from time to time made available to tenants and their
invitees or which benefit the tenants of the Building, including but not
limited to the lobby, elevators, common walkways and hallways and other
common appurtenances or facilities of the Building Complex.
30. Landlord its agents or representatives reserve the right to exclude or
expel from the Building any person, who, in the judgment of Landlord, is
intoxicated or under the influence of liquor or drugs or who shall in any
manner act in violation of the rules and regulations of the Building.
31. Tenant shall not use the washrooms, restrooms and plumbing fixtures of the
Building, and appurtenances thereto, for any other purpose then the
purposes for which they were constructed, and Tenant shall not deposit any
sweepings, rubbish, rags or other improper substances therein. Tenant shall
not waste water by interfering or tampering with the faucets or otherwise.
If Tenant or Tenant's servants, employees, contractors, jobbers, agents,
licensees, invitees, guests or visitors cause any damage to Such washrooms,
restrooms, plumbing fixtures or appurtenances, such damage shall be
repaired at Tenant's expense and Landlord shall not be responsible
therefor.
32. The sashes, sash doors, skylights, windows and doors that reflect or admit
light or air into the common areas of the Building shall not be covered or
obstructed by Tenant, through placement of objects upon window-xxxxx or
otherwise. Tenant shall cooperate with Landlord in obtaining maximum
effectiveness of the cooling system of the Building by closing drapes and
other window coverings when the sun's rays fall upon the windows of the
Premises. Tenant shall not obstruct, alter or in any way impair the
efficient operation of Landlord's heating, ventilating, air conditioning,
electrical, fire, safety, or lighting systems, nor shall Tenant tamper with
or change the setting of any thermostat or temperature control valves in
the Building.
33. Subject to applicable fire or other safety regulations, all doors opening
into Common Area and all doors upon the perimeter of the Premises shall be
kept closed and, during nonbusiness hours, locked, except when in use for
ingress or egress. If Tenant uses the Premises after regular business hours
or on nonbusiness days, Tenant shall lock any entrance doors to the
Building or to the Premises used by Tenant immediately after using such
doors.
35. Tenant shall not permit its employees or agents to smoke in any lobby,
hallway or restroom within the Building Complex or in any other areas of
the Building Complex posted as a non-smoking area. Notwithstanding the
foregoing, Landlord shall not be required to impose any restrictions on
smoking within the Building for the benefit of Tenant. No decision by
Landlord to permit or prohibit smoking shall be construed as a breach of
this Lease by Landlord.
36. Tenant agrees that Landlord may reasonably amend, modify, delete or add new
and additional rules and regulations to the use and care of the Premises
and the Building, provided such changes shall not unreasonably interfere
with Tenant's use of the Premises for office purposes. Tenant agrees to
comply with all such rules and regulations upon notice to Tenant from
Landlord thereof. In the event of any breach of any rules and regulations
herein set forth or any reasonable amendments, modifications or additions
thereto Landlord shall have all remedies in this Lease provided for in the
event of default by Tenant.
37. All references in these Rules and Regulations to "Tenant" shall be deemed
to include the employees, agents, invitees and licensees of Tenant and
others permitted by Tenant to use or occupy the Premises.
46
INTENTIONALLY DELETED
---------------------
47
48
EXHIBIT H
LEASE ADDENDUM
This Addendum to Lease is made by and between HANOVER RESOURCES INC.,
(hereinafter "Landlord") and COLORADO BUSINESS BANK, N.A. (hereinafter
"Tenant").
WHEREAS, the following Articles 1, 2, and 3 shall be incorporated into the
Lease, and the parties hereto, agree to as follows:
1. EQUIPMENT INSTALLATION:
-----------------------
SUBJECT TO THE DENVER TECH CENTER, LOCAL LAWS AND ORDINANCES, AND
LANDLORD'S FINAL APPROVAL, LANDLORD AGREES THAT TENANT SHALL HAVE THE RIGHT
TO INSTALL A NIGHT DEPOSITORY AND ATM ON THE SOUTH SIDE OF THE BUILDING IN
A LOCATION APPROVED BY LANDLORD. SUCH EQUIPMENT WILL BE INSTALLED BY
CONTRACTORS APPROVED BY LANDLORD, AND TENANT SHALL BE SOLELY RESPONSIBLE
FOR ALL COSTS ASSOCIATED WITH SUCH INSTALLATION. TENANT SHALL REMOVE ALL
EQUIPMENT AND ASSOCIATED CONSTRUCTION, VAULTS, ETC. AND RESTORE THE
BUILDING TO ITS ORIGINAL CONDITION AT TENANT'S SOLE COST AND EXPENSE, AT
THE END OF LEASE EXPIRATION, LEASE EXTENSION, OR EARLIER TERMINATION.
2. LEASE CONTINGENCY:
------------------
THIS LEASE IS CONTINGENT UPON ACCEPTANCE OF THE BRANCH BANK APPLICATION,
SUBMITTED BY COLORADO BANK SHARES, INC. TO THE CONTROLLER OF THE CURRENCY.
SHOULD TENANT NOT RECEIVE APPROVAL BY SEPTEMBER 1, 1998, TENANT SHALL
REIMBURSE LANDLORD NO LATER THAN SEPTEMBER 15, 1998 FOR OUT OF POCKET COSTS
INCLUDING, BUT NOT LIMITED TO CONSTRUCTION COSTS, BROKERAGE COMMISSIONS A
THE REMAINING LEASE OBLIGATION OF THE EXISTING TENANT IN THE PREMISES.
(USA HEALTH NETWORK, INC.)
3. OPTION TO RENEW:
----------------
PROVIDED TENANT HAS NOT BEEN IN DEFAULT DURING THE PRIMARY TERM OF THIS
LEASE, TENANT SHALL HAVE ONE (1) FIVE (5) YEAR OPTION TO RENEW THE LEASE
FOR ALL THE SPACE THEN DEMISED UNDER THE INITIAL LEASE AGREEMENT UPON FIRST
PROVIDING LANDLORD WRITTEN NOTICE (RETURN RECEIPT REQUESTED) OF ITS
INTENTION T0 EXERCISE THE RENEWAL OPTION NINE (9) MONTHS PRIOR TO THE
EXPIRATION DATE. THE RENTAL RATE FOR THE RENEWAL TERM SHALL BE AT THE THEN
PREVAILING MARKET RATE FOR COMPARABLE BUILDINGS IN THE DENVER TECH CENTER
AREA, EXCEPTING; BROKERAGE COMMISSIONS, RENTAL ABATEMENT, MOVING ALLOWANCE
OR SIMILAR CONCESSIONS. FURTHER, IN NO EVENT SHALL THE RENEWAL RATE BE LESS
THAN THE LAST YEAR'S RENTAL RATE DURING THE PRIMARY TERM. LANDLORD SHALL
PROVIDE TENANT WITH THE MARKET RENTAL RATE AFTER RECEIPT OF TENANT'S
EXERCISE OF THIS OPTION. TENANT SHALL HAVE TEN (10) BUSINESS DAYS TO
EXECUTE THE OPTION EXTENSION, AFTER WHICH, IF THE TENANT HAS NOT EXECUTED
THE OPTION EXTENSION THEN THIS LEASE SHALL. EXPIRE PER THE PROVISIONS OF
SECTION 2 OF THIS LEASE AND TENANT SHALL HAVE NO OPTION TO RENEW HEREUNDER.
TIME IS OF THE ESSENCE WITH REGARD TO THIS OPTION CLAUSE.
4. ASSIGNMENT AND SUBLETTING:
-------------------------
FOR A PERIOD OF THIRTY (30) DAYS AFTER TENANT'S NOTICE OF SUBLETTING OR
ASSIGNMENT IS GIVEN TO LANDLORD, LANDLORD WILL HAVE THE RIGHT BY WRITTEN
NOTICE TO TENANT TO:
49
(1) IN THE CASE OF A PROPOSED SUBLEASE, EITHER
(A) SUBLET FROM TENANT ANY PORTION OF THE PREMISES PROPOSED TO BE SUBLET
FOR THE TERM FOR WHICH SUCH PORTION IS PROPOSED TO BE SUBLET BUT AT
THE SAME RENT AS TENANT IS REQUIRED TO PAY TO LANDLORD UNDER THIS
LEASE FOR THE SAME SPACE, COMPUTED ON A PRO RATA SQUARE FOOTAGE BASIS,
OR
(2) IN THE CASE OF A PROPOSED ASSIGNMENT, TERMINATE THIS LEASE.
IF LANDLORD TERMINATES THIS LEASE, SUCH TERMINATION WILL BE AS OF THE DATE
SPECIFIED IN THE NOTICE. IF LANDLORD TERMINATES THIS LEASE, LANDLORD MAY, IF IT
ELECTS, ENTER INTO A NEW LEASE COVERING THE PREMISES OR A PORTION THEREOF WITH
THE INTENDED ASSIGNEE OR SUBTENANT, ON SUCH TERMS AS LANDLORD AND SUCH PERSON
MAY AGREE, OR ENTER INTO A NEW LEASE COVERING THE PREMISES OR A PORTION OF THE
PREMISES WITH ANY OTHER PERSON. IN SUCH EVENT, TENANT WILL NOT BE ENTITLED TO
ANY PORTION OF THE PROFIT, IF ANY, WHICH LANDLORD MAY REALIZE ON ACCOUNT OF SUCH
TERMINATION AND RELETTING. LANDLORD'S EXERCISE OF ITS AFORESAID OPTION WILL NOT
BE CONSTRUED TO IMPOSE ANY LIABILITY UPON LANDLORD WITH RESPECT TO ANY REAL
ESTATE BROKERAGE COMMISSION(S) OR ANY OTHER COST OR EXPENSES INCURRED BY TENANT
IN CONNECTION WITH ITS PROPOSED SUBLETTING OR ASSIGNMENT.
IF TENANT COMPLIES WITH THE PROVISIONS OF THIS SECTION AND LANDLORD DOES NOT
EXERCISE AN OPTION PROVIDED TO LANDLORD, LANDLORD'S CONSENT TO A PROPOSED
ASSIGNMENT OR SUBLETTING WILL NOT BE UNREASONABLY WITHHELD. WITHOUT LIMITING THE
OTHER INSTANCES IN WHICH IT MAY BE REASONABLE FOR LANDLORD TO WITHHOLD ITS
CONSENT TO AN ASSIGNMENT OR SUBLETTING, LANDLORD AND TENANT ACKNOWLEDGE THAT IT
WILL BE REASONABLE FOR LANDLORD TO WITHHOLD ITS CONSENT IN ANY OF THE FOLLOWING
INSTANCES:
(1) THE PROPOSED ASSIGNEE OR SUBLESSEE IS A GOVERNMENTAL AGENCY;
(2) IN LANDLORD'S REASONABLE JUDGMENT THE USE OF THE PREMISES BY THE PROPOSED
ASSIGNEE OR SUBLESSEE WOULD ENTAIL ALTERATIONS THAT WOULD LESSEN THE VALUE
OF THE LEASEHOLD IMPROVEMENTS IN THE PREMISES OR WOULD REQUIRE INCREASED
SERVICES BY LANDLORD.
(3) LANDLORD HAS RECEIVED FROM ANY PRIOR TENANT TO THE PROPOSED ASSIGNEE OR
SUBTENANT A NEGATIVE REPORT CONCERNING SUCH PRIOR TENANT'S EXPERIENCE WITH
THE PROPOSED ASSIGNEE OR SUBTENANT;
(4) LANDLORD HAS EXPERIENCED PREVIOUS DEFAULTS BY OR IS IN LITIGATION WITH THE
PROPOSED ASSIGNEE OR SUBTENANT;
(5) (i) THE PROPOSED ASSIGNEE'S OR SUBTENANT'S ANTICIPATED USE OF THE PREMISES
INVOLVES THE GENERATION, STORAGE, USE, TREATMENT, OR DISPOSAL OF HAZARDOUS
MATERIAL; (ii) THE PROPOSED ASSIGNEE OR SUBTENANT HAS BEEN REQUIRED BY ANY
PRIOR LANDLORD, LENDER OR GOVERNMENTAL AUTHORITY TO TAKE REMEDIAL ACTION IN
CONNECTION WITH HAZARDOUS MATERIAL CONTAMINATING A PROPERTY IF THE
CONTAMINATION RESULTED FROM SUCH ASSIGNEE'S OR SUBTENANT'S ACTIONS OR USE
OF THE PROPERTY IN QUESTION; OR (iii) THE PROPOSED ASSIGNEE OR SUBTENANT IS
SUBJECT TO AN E11FORCEMENT ORDER ISSUED BY ANY GOVERNMENTAL AUTHORITY IN
CONNECTION WITH THE DISPOSAL OR STORAGE OF A HAZARDOUS MATERIAL;
50
(6) THE USE OF THE PREMISES BY THE PROPOSED ASSIGNEE OR SUBTENANT WILL
VIOLATE ANY APPLICABLE LAW, ORDINANCE OR REGULATION;
(7) THE PROPOSED ASSIGNMENT OR SUBLEASE WILL CREATE A VACANCY ELSEWHERE
IN THE BUILDING.
(8) THE PROPOSED ASSIGNEE OR SUBTENANT, OR ANY PERSON THAT, DIRECTLY OR
INDIRECTLY, CONTROLS, IS CONTROLLED BY, OR IS UNDER COMMON CONTROL WITH
THE PROPOSED ASSIGNEE OR SUBTENANT, IS THEN AN OCCUPANT OF THE BUILDING;
(9) THE PROPOSED ASSIGNEE OR SUBTENANT IS A PERSON WITH WHO LANDLORD IS
NEGOTIATING TO LEASE SPACE IN THE BUILDING OR HAS SHOWN THE BUILDING
WITHIN THE LAST SIX (6) MONTHS.
(10) THE PROPOSED ASSIGNMENT OR SUBLEASE FAILS TO INCLUDE ALL OF THE TERMS
AND PROVISIONS REQUIRED TO BE INCLUDED PURSUANT TO THIS PARAGRAPH;
(11) IN THE CASE OF A SUBLETTING OF LESS THAN THE ENTIRE PREMISES, IF THE
SUBLETTING WOULD RESULT IN THE DIVISION OF THE PREMISES INTO MORE THAN TWO
SUBPARCELS OR WOULD REQUIRE ACCESS TO BE PROVIDED THROUGH SPACE LEASED OR
HELD FOR LEASE TO ANOTHER TENANT OR IMPROVEMENTS TO BE MADE OUTSIDE THE
PREMISES.
(D) IF TENANT ASSIGNS OR SUBLETS THE PREMISES OR REQUESTS LANDLORD'S CONSENT TO
A PROPOSED ASSIGNMENT, SUBLETTING OR OTHER ACT, THEN TENANT WILL PAY TO
LANDLORD AN ADMINISTRATIVE FEE IN THE SUM OF $500.00 AND ALSO LANDLORD'S
REASONABLE ATTORNEY'S FEES.
51
