BASIC LEASE INFORMATION
-----------------------
(Industrial Service Center Lease Agreement-Net)
LANDLORD: MONY/BDP Flex I, L.L.C.
A. BUILDING: Arapahoe Service Center 2
B. ADDRESS (for notices):
c/o Transwestern Commercial Services
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
C. TELEPHONE: 000 000 0000
TENANT: CAVION TECHNOLOGIES, INC.
A. PREMISES: The space containing approximately 14,400 square
feet, as shown on EXHIBIT "B" hereto.
B. ADDRESS (for notices):
Prior to occupancy: After occupancy:
Xxxxxx.xxx Xxxxxx.xxx
0000 Xxxxx Xxxxxx 0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 000 Xxxx ----
Xxxxxx, XX 00000-0000 Xxxxxxxxx, XX 00000
Attn: Xx. Xxxxxxxx Aster Attn: Xx. Xxxxxxxx Aster
Telephone: 0000000000 Telephone: 303 -------
BASE RENTAL:
-----------
TOTAL
MONTHLY ANNUAL
RENT RENT
-------- --------
Year 1:
Month 1 $-0-
Months 2-12 $15,000 $165,000
Year 2: Months 13-24 $15,300 $183,600
Year 3: Months 26-36 $15,600 $187,200
Year 4: Months 37-48 $15,900 $190,800
Year 5: Months 49-60 $16,200 $194,400
Year 6: Months 61-72 $16,500 $198,000
Year 7: Month 73 $16,500 $16,500
Total Rent for the Lease Term $1,135,600
INITIAL ESTIMATED
OPERATING EXPENSE RENTAL: $3.38 per square foot year
SECURITY DEPOSIT: $15,600 due and payable upon execution of the Lease.
PREPAID RENTAL: $15,000 due and payable upon execution of the Lease.
TENANT'S PRO RATA SHARE: 18.18 percent (18.18%)
COMMENCEMENT DATE: The earlier of January 1, 2000 or the date Tenant
occupies the Premises, subject to modification pursuant to Paragraph 3(a)
of the Lease.
LEASE TERM: A period of seventy-three (73) months from the Commencement
Date; provided that if the Commencement Date is a date other than the
first day of a calendar month the Lease Term shall consist of seventy-
three (73) calendar months in addition to the remainder of the calendar
month in which the Commencement Date occurs.
APPROXIMATE RENTABLE AREA IN THE PREMISES: 14,400 square feet of
Rentable Area
APPROXIMATE RENTABLE AREA IN THE PROJECT: 79,200 square feet of
Rentable Area
LANDLORD'S AGENT(S): Transwestern Property Company Colorado, LLC
TENANT'S AGENT(S): CRESA Partners
GUARANTORS(S): None
PERMITTED USE: Office/showroom use for Internet services provider,
which shall include but not be limited to offices,
conference roams, computer rooms, lunchrooms, copy
rooms and related uses.
The foregoing Basic Lease Information shall be construed in
conjunction with the references thereto contained in other provisions of
the Lease and shall be limited by such other provisions. Each reference
in the Lease to any of the foregoing Basic Lease Information shall be
construed to incorporate each term set forth hereinabove as so limited.
In the event of any conflict between any Basic Lease Information and the
Lease, the terms of the Lease shall control.
TABLE OF CONTENTS
-----------------
Page
----
1. DEFINITION 1
2. LEASE GRANT 2
3. DECLARATION OF COMMENCEMENT 2
4. USE 3
5. BASE RENTAL AND OPERATING EXPENSE RENTAL 3
6. SECURITY DEPOSIT 4
7. LANDLORD'S MAINTENANCE 4
8. TENANT'S MAINTENANCE AND REPAIR OBLIGATIONS 5
9. ALTERATIONS 5
10. SIGNS 6
11. UTILITIES 6
12. ENTRY BY LANDLORD 6
13. ASSIGNMENT AND SUBLETTING 6
14. MECHANIC'S LIENS 8
15. PROPERTY INSURANCE 8
16. LIABILITY INSURANCE 8
17. FORMS OF POLICIES; INCREASE IN PREMIUMS, WAIVER OF CLAIMS 8
18. INDEMNITY 9
19. CASUALTY DAMAGE 9
20. DAMAGES FROM CERTAIN CAUSES 10
21. CONDEMNATION 10
22. HAZARDOUS SUBSTANCES 11
23. AMERICANS WITH DISABILITIES ACT 12
24. EVENTS OF DEFAULT/REMEDIES 12
25. TENANT REMEDIES 14
26. NO WAIVER 14
27. EVENT OF BANKRUPTCY 15
28. PEACEFUL ENJOYMENT 16
29. PARKING 16
30. REMOVAL OF PROPERTY AT EXPIRATION OF LEASE; HOLDING OVER 16
31. SUBORDINATION TO MORTGAGE 16
32. ESTOPPEL CERTIFICATE 17
33. ATTORNEY'S FEES 17
34. NOTICE 17
35. SEVERABILITY 17
36. RECORDATION 17
37. GOVERNING LAW 17
38. FORCE MAJEURE 17
39. TIME OF PERFORMANCE 17
40. TRANSFERS BY LANDLORD 17
41. COMMISSIONS 18
42. JOINT AND SEVERAL LIABILITY 18
43. AUTHORITY 18
44. FINANCIAL CONDITION OF TENANT 18
45. EFFECT OF DELIVERY OF THIS LEASE 18
46. ENTIRE AGREEMENT 18
47. NO PRESUMPTION AGAINST DRAFTER 18
48. LANDLORD'S LIEN 18
49. WARRANTY WAIVER 19
50. SUBSTITUTION 19
EXHIBIT "A" - Property Description
EXHIBIT "B" - Outline and Location of Premises
EXHIBIT "C" - Operating Expense Rental
EXHIBIT "D" - Work Letter
EXHIBIT "D-1" - Base Building Shell and Core Condition
EXHIBIT "D-2" - Tenant Improvement Allowance
EXHIBIT "D-3" - Landlord's Building Standard Materials
EXHIBIT "E" - Rules and Regulations
EXHIBIT "G" - Option to Renew
EXHIBIT "H" - Letter of Credit
EXHIBIT H-1 - Form of Demand Letter of Credit
EXHIBIT "I" - Parking Agreement
LEASE AGREEMENT
This Lease Agreement (the "Lease") is made and entered effective
October 29, 1999 between MONY/BDP FLEX I, L.L.C., a Delaware limited
liability corporation ("Landlord") and CAVION TECHNOLOGIES, INC., a
Colorado corporation d/b/a xxxxxx.xxx ("Tenant").
W I T N E S S E T H:
1. DEFINITION: The following are definitions of some of the
defined terms used in this Lease. The definition of other defined terms
are found throughout this Lease.
(a) "Building" shall mean the industrial building located upon
the real property (the "Property") described in EXHIBIT "A" attached
hereto and incorporated herein together with all appurtenances
thereto,
(b) "Base Rental" shall mean:
TOTAL
MONTHLY ANNUAL
RENT RENT
-------- --------
Year 1:
Month 1 $-0-
Months 2-12 $15,000 $165,000
Year 2: Months 13-24 $15,300 $183,600
Year 3: Months 26-36 $15,600 $187,200
Year 4: Months 37-48 $15,900 $190,800
Year 5: Months 49-60 $16,200 $194,400
Year 6: Months 61-72 $16,500 $198,000
Year 7: Month 73 $16,500 $16,500
For a total of not less than $1,135,500.00 during the Lease Term as
adjusted pursuant to Paragraph 3 hereto. Tenant shall pay the Base
Rental due for the SECOND month during the "Lease Term" (hereinafter
defined) to Landlord contemporaneously with the execution hereof.
(c) "Operating Expenses" shall mean all direct and indirect
costs and expenses incurred in connection with the Project as more
fully defined in EXHIBIT "C" attached hereto.
(d) "Security Deposit" shall mean the sum of $15,600.00 unless
increased at some future time pursuant to the terms herein.
(e) "Commencement Date" shall mean the earlier of the date that
Tenant actually occupies the Premises or January 1, 2000 (except as
the same may be delayed pursuant to the provisions of Paragraph 3(a)
hereof).
(f) "Lease Term": A period of SEVENTY-THREE (73) months from
the Commencement Date; provided that if the Commencement Date is a
date other than the first day of a calendar month the Lease Term
shall consist of SEVENTY-THREE (73) calendar months in addition to
the remainder of the calendar month in which the Commencement Date
occurs.
(g) "Premises" shall mean the space located within the Building
and outlined on EXHIBIT "B" to this Lease. The Premises are
stipulated for all purposes to contain approximately 14,400 square
feet of "Rentable Area" (as defined below).
(h) "Approximate Rentable Area in the Premises" shall mean the
area contained within the demising walls of the Premises and any
other area designated for the exclusive use of Tenant. For purposes
of the tease it is agreed and stipulated by both Landlord and Tenant
that the Approximate Rentable Area in the Promises is 14,400 square
feet.
The Approximate Rentable Area in the Project is approximately 79,200
square feet. The estimates of Rentable Area within the Premises and
within the Project as set forth herein may be revised at Landlord's
election if Landlord's architect determines such estimate to be
inaccurate in any material degree after examination of the final
drawings of the Premises and/or the Project. ALL BUILDING
MEASUREMENTS SHALL BE IN ACCORDANCE WITH BOMA STANDARDS.
(i) "Common Areas" shall mean the portions of the Project which
are made available by Landlord for use by more than one tenant,
including without limitation (and where applicable) driveways,
parking areas and landscaping.
(j) "Building Standard", when used herein, shall mean the type,
brand, quality and/or quantity of materials Landlord designates from
time to time to be the minimum quality and/or quantity to be used in
the Building or the exclusive type, grade, quality and/or quantity of
material to be used in the Building and shall include, but not be
limited to, the Building Standard Materials defined in the Work
Letter Agreement attached hereto as EXHIBIT "D".
(k) "Maximum Rate", when used herein, shall mean the greatest
of the rates of interest from time to time permitted under applicable
federal and state law. To the extent of the applicable state and
federal law, the Maximum Rate shall be the highest permitted rate
based upon the "indicated rate ceiling", but to the extent now or
hereafter permitted by law, Landlord may from time to time implement,
withdraw and reinstate any ceiling as an alternative to the indicated
rate ceiling, including the right to reinstate the indicated rate
ceiling.
(l) "Prime Rate" shall mean the per annum interest rate
announced by and quoted by Chase Bank (or another money center bank
selected by Landlord) from time to time (whether or not charged in
each instance) as its prime or base rate.
(m) "Guarantor(s)" shall mean NONE and any other party required
by Landlord to guarantee Tenant's obligations under the Lease.
(n) "Project" means the Property, all improvements on the
Property including without limitation the Building and any parking
area or facilities thereon, and any adjacent land (and the
improvements thereon) owned or leased by Landlord and either used for
additional parking for the benefit of the Building or otherwise
operated by Landlord (together with the Property) as an integrated
project.
(o) "Default Rate" means the lower of (i) the Prime Rate plus
six percent (6%) or (ii) the Maximum Rate.
(p) "State" means the state in which the Project is located.
(q) "Tenant's Pro Rata Share" means the fraction, the numerator
of which is the Rentable Area of the Premises and the denominator of
which is the Rentable Area of the Project, expressed as a percentage.
2. LEASE GRANT. Subject to and upon the terms herein set forth,
Landlord leases to Tenant and Tenant leases from Landlord the Premises.
3. DECLARATION OF COMMENCEMENT.
(a) Subject to and upon the terms and conditions set forth in
this Lease, this Lease shall continue in force for the Lease Term.
Notwithstanding the Commencement Date provided in Paragraph 1(e) of
this Lease, Tenant's obligation for the payment of rent and the Lease
Term shall not commence until Landlord has substantially completed
all work to be performed by Landlord as set forth in the Work Letter
Agreement attached hereto as EXHIBIT "D"; provided, however, that it
Landlord shall be delayed in substantially completing said work as a
result of any of the following (a "Delay"):
(i) Tenant's failure to furnish information in accordance
herewith or to respond to any request by Landlord for any
approval or information within any time period prescribed, or if
no time period is prescribed, then within two Business Days of
such request; or
(ii) Tenant's insistence on materials, finishes or
installations other than Landlord's Building Standard after
having first been informed by Landlord in writing at or before
the time of delivery to Tenant of final construction pricing for
Tenant's approval that such materials, finishes or installations
will cause a Delay; or
(iii) Tenant's changes in any plans and specifications; or
(iv) The performance by a person, firm or corporation
employed by Tenant in the completion of any work by said person,
firm or corporation (all such work and such persons, firms or
corporations being subject to the approval of Landlord); or
(v) Any request by Tenant that Landlord delay the
completion of any of Landlord's work; or
(vi) Any breach or default by Tenant in the performance of
Tenant's obligations under this Lease; or
(vii) Any delay resulting from Tenant's having taken
possession of the Premises prior to its being substantially
completed, as defined below; or
(viii) Any reasonably necessary displacement of any of
Landlord's work from its place in Landlord's construction
schedule resulting from any of the causes for Delay; or
(ix) Any other delay chargeable to Tenant, its agents,
employees or independent contractors;
then the commencement of the Lease Term and the payment of rent shall be
accelerated by the number of days of such Delay but in no event shall such
commencement be prior to the Commencement Date stipulated in Paragraph
l(e) hereof. The Premises shall be deemed to be substantially completed
on the date that Landlord or Landlord's architect reasonably determines
that all work to be performed by Landlord pursuant to this Lease has been
performed other than punch list items. The term "punch list items" as
used herein shall mean any details of construction, mechanical adjustment
or other MINOR matters, the noncompletion of which does not materially
interfere with Tenant's use of the Premises. The abatement of rent shall
be Tenant's sole remedy and shall constitute full settlement of all claims
that Tenant might otherwise have against Landlord by reason of the
Premises not being ready for occupancy by Tenant on the Commencement Date.
If for any reason Tenant takes possession of the Premises prior to
substantial completion, Tenant's obligation to pay rent shall commence
upon the date Tenant takes possession of the Premises and Tenant shall
indemnify and hold Landlord harmless from any liability as a result of
Tenant's early occupancy of the Premises. NOTWITHSTANDING THE FOREGOING
PROVISION, IF TENANT'S INITIAL OCCUPANCY IS FOR A PARTIAL MONTH, TENANT
SHALL BE ENTITLED TO ONE FULL MONTH OF EXCUSED RENT. Landlord's
determination of the Commencement Date shall be final and binding on all
parties for all purposes hereof, including, without limitation,
determination of the date of commencement of the Lease Term and of
Tenant's obligation to pay rent hereunder.
(b) The taking of possession of the Premises by Tenant shall be
conclusive evidence against Tenant that, except for the completion of
any PUNCH LIST ITEMS AND ANY items which Landlord stipulates in
writing are remaining to be done or corrected by Landlord, (i) Tenant
warrants and represents to Landlord that it has conducted its own
independent investigation of the Premises and the Project and that
the Promises and the Project are suitable for the purpose for which
the same are leased, subject to any latent defect which is not
discoverable upon reasonable inspection, (ii) the Premises and the
Project and each and every part and appurtenance thereof are in good
and satisfactory condition, except for any latent defect which is not
discoverable upon a reasonable inspection, and (iii) Tenant waives
any defects in the Premises and its appurtenances and in all other
parts of the Project and the appurtenances thereto, except for any
latent defect which is not discoverable upon a reasonable inspection.
4. USE.
(a) The Premises shall be used for the Permitted Use and for no
other purpose. No retail sales may be made from the Premises (other
than incidental retail sales from a showroom area). Tenant shall not
use the Premises to receive, store or handle any product, material or
merchandise that is explosive or highly inflammable or hazardous.
Outside storage is prohibited. Tenant shall be solely responsible
(at Tenant's sole cost and expense) for complying with all laws
applicable to ITS use, AND occupancy of the Premises, including
without limitation obtaining all required building permits and/or
certificates of occupancy FOR THE PREMISES. Tenant shall not permit
any objectionable or unpleasant odors, smoke, dust, gas, light, noise
or vibrations to emanate from the Premises; nor take any other action
that would in Landlord's sole judgment constitute a nuisance or would
disturb, unreasonably interfere with, or endanger Landlord or any
other person; nor permit the Premises to be used for any purpose or
in any manner that would (1) void the insurance thereon, (2) increase
the insurance risk, or (3) cause the disallowance of any sprinkler
credits. Tenant shall pay to Landlord on demand any increase in the
cost of any insurance on the Premises or the Building incurred by
Landlord which is caused by Tenant's use of the Premises or because
Tenant vacates the Premises IN VIOLATION OF THIS LEASE. Tenant
agrees not to use or permit the use of the Premises for any purpose
which is illegal or dangerous to life, limb or property;
(b) Tenant will conduct its business and control its agents,
servants, employees, customers, licensees, and invitees in such a
manner as not to interfere with, annoy or disturb other tenants or
Landlord. Tenant will maintain the Premises in a clean and healthful
condition, and comply with all laws, ordinances, orders, rules and
regulations of any governmental entity with reference to ITS use AND
occupancy of the Premises. Tenant, at his expense, will comply with
the rules and regulations of the Building adopted and altered by
Landlord from time to time and will cause all of its agents,
employees, invitees and visitors to do so. ANY FURTHER REVISIONS OF
THE RULES AND REGULATIONS SHALL APPLY UNIFORMLY TO ALL TENANTS IN THE
BUILDING AND SHALL BE UNIFORMLY ENFORCED. A copy of the existing
rules and regulations is attached hereto as EXHIBIT "E" and made a
part hereof. Tenant agrees not to commit or allow any waste to be
committed on any portion of the Premises, and at the termination of
this Lease to deliver up the Premises to Landlord in as good
condition as at the Commencement Date, ordinary wear and tear
excepted, AND SUBJECT TO THE PROVISIONS OF THE LEASE CONCERNING
DAMAGE AND CASUALTY.
5. BASE RENTAL AND OPERATING EXPENSE RENTAL.
(a) Tenant covenants and agrees to pay during the Lease Term,
to Landlord, without any setoff or deduction except as otherwise
expressly provided herein, the Base Rental, and all such other sums
of money as shall become due hereunder as additional rent, all of
which are sometimes herein collectively called "rent," In the event
of nonpayment of any such rent, Landlord shall be entitled to
exercise all such rights and remedies as are herein provided in the
case of the nonpayment of Base Rental. Except as otherwise provided
herein, the annual Base Rental for each calendar year or portion
thereof during the Lease Term, together with any estimated Operating
Expense Rental pursuant to EXHIBIT "C" hereof then in effect, shall
be due and payable in advance in twelve (12) equal installments on
the first day of each calendar month during the initial term of this
Lease and any extensions or renewals hereof, and Tenant hereby agrees
to pay such Base Rental and Operating Expense Rental to Landlord at
Landlord's address provided herein (or such other address as may be
designated by Landlord in writing from time to time) monthly, in
advance, and without demand. If the term of this Lease commences an
a day other than the first day of a month or terminates on a day
other than the last day of a month, then the installments of Base
Rental and Operating Expense Rental for such month or months shall be
prorated, based on the number of days in such month. The Base Rental
and Operating Expense Rental for the first partial month, if any,
shall be payable at the beginning of said period. All such payments
shall be by a good and sufficient check (subject to collection). No
payment by Tenant or receipt or acceptance by Landlord of a lesser
amount than the correct installment of rent due under this Lease
shall be deemed to be other than a payment on account of the earliest
rent due hereunder, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment be deemed an
accord and satisfaction, and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance
or pursue any other remedy provided by this Lease or applicable law.
The acceptance by Landlord of an installment of rent on a date after
the due date of such payment shall not be construed to be a waiver of
Landlord's right to declare a default for any other late payment. If
Tenant fails to timely pay any two (2) installments of rent, Landlord
at its sole option may 1) require Tenant to pay rent (as estimated by
Landlord, if necessary) quarterly in advance, and, in such event, all
future payments shall be made on or before the due date in cash or by
cashier's check or money order, and the delivery of Tenant's
collectible personal or corporate check shall no longer constitute
payment thereof or, 2) Landlord may require that the Tenant deposit
an additional Security Deposit equal to 3 months rent, from which
Landlord, at his or her sole discretion, may satisfy any future late
payments made by Tenant, and Tenant shall be required to maintain
such additional Security Deposit levels throughout the remaining
Security Deposit as described in subsection 2) above, then Tenant
shall have 5 days to deposit such additional Security Deposit as
required above. Nothing in this section shall relieve Tenant from
its duties to pay Late Charges as hereinafter provided. Any
acceptance of Tenant's collectible personal or corporate check
thereafter by Landlord shall not be construed as a waiver of the
requirement that such payments be made in cash or by cashier's check
or money order. All amounts received by Landlord from Tenant
hereunder shall be applied first to the earliest accrued and unpaid
rent then outstanding.
(b) To the extent allowed by law: all installments of rent not
paid when due shall bear interest at the Default Rate from the date
due until paid; and, in addition, all installments of rent not paid
within seven (7) days of when due and payable shall incur a Late
Charge equal to five percent (5%) of the outstanding balance due.
(c) Tenant agrees to pay Operating Expense Rental (as defined
in EXHIBIT "C") in accordance with such Exhibit and subsection 5(a)
above.
6. SECURITY DEPOSIT. The Security Deposit shall be held by
Landlord without liability for interest and as security for the
performance by Tenant of Tenant's covenants and obligations under this
Lease, it being expressly understood that the Security Deposit shall not
be considered an advance payment of rent or a measure of Tenant's
liability for damages in case of default by Tenant. Landlord may, from
time to time, without prejudice to any other remedy and without waiving
such default, use the Security Deposit to the extent necessary to cure any
default of Tenant hereunder. Following any such application of the
Security Deposit, Tenant shall pay to Landlord on demand the amount so
applied in order to restore the Security Deposit to its original amount.
If Tenant is not in default at the termination of this Lease, the balance
of the Security Deposit remaining after any such application shall be
returned by Landlord to Tenant WITHIN 30 DAYS AFTER THE TERMINATION OF
THIS LEASE. If Landlord transfers its interest in the Premises during the
term of this Lease, Landlord may assign the Security Deposit to the
transferee and thereafter shall have no further liability for the return
of such Security Deposit. Tenant agrees to look solely to such transferee
or assignee or successor thereof for the return of the Security Deposit.
Landlord and its successors and assigns shall not be bound by any actual
or attempted assignment or encumbrance of the Security Deposit by Tenant.
7. LANDLORD'S MAINTENANCE.
(a) This Lease is intended to be a PARTIAL not lease;
accordingly, Landlord's maintenance obligations are limited to the
replacement of the Building's roof and maintenance of the foundation and
structural members of the exterior walls (collectively, the "BUILDING'S
STRUCTURE"); however, Landlord shall not be responsible (i) for any such
work until Tenant delivers to Landlord written notice of the need therefor
or (ii) for alterations to the Building's Structure required by Law
because of Tenant's use of the Premises (which alterations shall be
performed by Tenant). The Building's Structure does not include PREMISES
skylights, windows, glass or plate glass, doors, special store fronts or
office entries, all of which shall be maintained by Tenant AS PART OF THE
PREMISES. Landlord's liability for any defects, repairs, replacement or
maintenance for which Landlord is responsible hereunder shall be limited
to the cost of performing such work(INCLUDING ANY MATERIALS AND LABOR).
(b) FOLLOWING 10 DAYS' NOTICE AND OPPORTUNITY TO CURE, Landlord
may perform Tenant's maintenance, repair and replacement obligations and
any other items that are otherwise Tenant's obligations under Paragraph 8,
in which event Tenant shall pay to Landlord any cost incurred by Landlord
in performing such obligations, together with FIVE percent (5%) thereof to
cover Landlord's overhead, within FIFTEEN (15) days after Landlord's
request therefor.
(c) IN ADDITION TO THE OBLIGATIONS SET FORTH HEREINABOVE,
LANDLORD SHALL AGREE TO PERFORM ALL WORK CALLED FOR UNDER EXHIBIT C,
PARAGRAPH 3, SUBSECTIONS (a) THROUGH (j)TENANT'S MAINTENANCE AND REPAIR
OBLIGATIONS.
8. TENANT'S MAINTENANCE AND REPAIR OBLIGATIONS.
(a) Tenant shall maintain all parts of the Premises (except for
maintenance work which Landlord is expressly responsible for under
Paragraph 7 in good condition and promptly make all necessary repairs and
replacements to the Premises.
(b) Tenant shall KEEP the parking areas, driveways, alleys and
grounds surrounding the Premises in a clean and sanitary condition,
consistent with the operation of a first-class office/warehouse building,
including, without limitations prompt maintenance, repairs and
replacements of ANY DAMAGE CAUSED BY TENANT. Tenant shall repair and pay
for any damage caused by a Tenant Party (defined below) or caused by
Tenant's default hereunder.
(c) Tenant shall maintain the hot water equipment and the
heating, air condition, and ventilation equipment and system APPURTENANT
TO THE PREMISES (the "HVAC SYSTEM") in good repair and condition and in
accordance with applicable law and with such equipment manufacturers'
suggested operation/maintenance service program. Within thirty (30) days
after the Commencement Date, Tenant shall enter into regularly scheduled
preventive maintenance/service contracts for such equipment, each in form
and substance and with a contractor reasonably acceptable to Landlord, and
deliver copies thereof to Landlord. At least 14 days before the end of
the Term, Tenant shall deliver to Landlord a certificate from an engineer
reasonably acceptable to Landlord certifying that the hot water equipment
and the HVAC System are then in good repair and working order, NORMAL WEAR
AND TEAR ACCEPTED. SINCE ALL ROOFTOP HVAC UNITS SHALL BE INSTALLED NEW,
LANDLORD SHALL PERMIT TENANT TO BENEFIT FROM ANY MANUFACTURER'S WARRANTIES
PROVIDED FOR SUCH ITEMS.
9. ALTERATIONS.
(a) Except as otherwise provided in the Work Letter Agreement
attached hereto as EXHIBIT "D", all installations and improvements
now or hereafter placed on or in the Premises shall be subject to the
provisions of this Paragraph 9 hereof and shall be for Tenant's
account and at Tenant's cost land Tenant shall pay au valorem taxes
and increased insurance thereon or attributable thereto), which cost
shall be payable by Tenant to Landlord upon demand as additional
rent. Such additional rent shall not be construed as including taxes
assessed against improvements in the Premises which are subject to
personal property taxes. Such personal property taxes shall remain
the sole responsibility of the Tenant.
(b) Tenant shall not make any alterations, additions or
improvements to the Premises without the prior written consent of
Landlord. Landlord shall not be required to notify Tenant of whether
it consents to any alteration, addition or improvements until it (1)
has received plans and specifications therefor which are sufficiently
detailed to allow construction of the work depicted thereon to be
performed in a good and workmanlike manner, and (2) has had a
reasonable opportunity to review them. If the alteration, addition
or improvement will affect the Building's Structure, HVAC System, or
mechanical, electrical, or plumbing systems, then the plans and
specifications therefor must be prepared by a licensed engineer
reasonably acceptable to Landlord. Landlord's approval of any plans
and specifications shall not be a representation that the plans or
the work depicted thereon will comply with law or be adequate for any
purpose, but shall merely be Landlord's consent to performance of the
work. Upon completion of any alteration, addition, or improvement,
Tenant shall deliver to Landlord accurate, reproducible as-built
plans therefor. Tenant may erect shelves, bins, machinery and trade
fixtures provided that such items (i) do not alter the basic
character of the Premises or the Building; (ii) do not overload or
damage the same; and (ii) may be removed without damage to the
Premises. Unless Landlord specifies in writing otherwise, all
alterations, additions, and improvements shall be Landlord's property
when installed in the Premises. All work performed by a Tenant Party
in the Premises (including that relating to the installations,
repair, replacement, or removal of any item) shall be performed in
accordance with applicable law and with Landlord's specifications and
requirements, in a good and workmanlike manner, and so as not to
damage or alter the Building's Structure or the Premises.
(c) At least five (5) days prior to the commencement of any
work permitted to be done by persons requested Tenant on the
Premises, the Tenant shall notify Landlord of the proposed work and
the names and addresses of the persons supplying labor and materials
for the proposed work so that Landlord may avail itself of the
provisions of statutes such as Section 38-22-105(2) of the Colorado
Revised Statues (1973). During any such work on the Premises,
Landlord, or its representatives, shall have the right to go upon and
inspect the Premises at all reasonable times, and shall have the
right to post and keep posted thereon notices such as those provided
for by section 38-22-105(2) C.R.S. (1973) or to take further action
which Landlord may deem to be proper for the protection of Landlord's
interest in the Premises.
10. SIGNS. OTHER THAN BUILDING STANDARD SIGNAGE, Tenant shall not
place, install or attach any signage, decorations, advertising media,
blinds, draperies, window treatments, bars, or security installations to
the Premises or the Building without Landlord's prior written approval.
Tenant shall repair, paint, and/or replace any portion of the Premises or
the Building damaged or altered as a result of its signage when it is
removed (including, without limitation, any discoloration of the
Building). Tenant shall not (a) make any changes to the exterior of the
Premises or the Building, (b) install any exterior lights, decorations,
balloons, flags, pennants, banners or paintings, or (c) erect or install
any signs, windows or door lettering, decals, window or storefront
stickers, placards, decorations or advertising media of any type that is
visible from the exterior of the Premises without Landlord's prior written
consent. Landlord shall not be required to notify Tenant of whether it
consents to any sign until it (i) has received detailed, to-scale drawings
thereof specifying design, material composition, color scheme, and method
of installation, and (ii) has had a reasonable opportunity to review them.
11. UTILITIES. Tenant shall obtain and pay for all water, gas,
electricity, heat, telephone, sewer, sprinkler charges and other utilities
and services used at the Premises, together with any taxes, penalties,
surcharges, maintenance charges, and the like pertaining to the Tenant's
use of the Premises. Landlord may, at Tenant's expense, separately meter
and xxxx Tenant directly for its use of any such utility service, in which
case, the amount separately billed to Tenant for Building-standard utility
service shall not be duplicated in Tenant's obligation to pay Operating
Expense Rental. Landlord shall not be liable for any interruption or
failure of utility service to the Premises. All amounts due from Tenant
under this Paragraph 11 shall be payable within ten (10) days after
Landlord's request therefor.
12. ENTRY BY LANDLORD. Landlord and Landlord's agents and
representatives may enter the Premises during business hours to inspect
the Premises; to make such repairs as may be required or permitted under
this Lease SO LONG AS SUCH REPAIR DOES NOT UNREASONABLY INTERFERE WITH
TENANT'S OPERATION; to perform any unperformed obligations of Tenant
hereunder FOLLOWING 10 DAYS' NOTICE AND OPPORTUNITY TO CURE; and to show
the Premises to prospective purchasers, mortgagees, ground lessors, and
(during the last twelve (12) months of the Term) tenants, PROVIDED THAT
TENANT HAS NOT EXERCISED IT RENEWAL OPTION SET FORTH HEREUNDER. During
the last twelve (12) months of the Term (OR RENEWAL TERM, IF APPLICABLE),
Landlord may erect a sign on the Premises indicating that the Premises are
available. Tenant shall notify Landlord in writing of its intention to
vacate the Promises at least sixty (60) days before Tenant will vacate the
Premises; such notice shall specify the date on which Tenant intends to
vacate the Premises (the "VACATION DATE"). At least thirty (30) days
before the Vacation Date, Tenant shall arrange to meet with Landlord for a
joint inspection of the Premises. After such inspection, Landlord shall
prepare a list of items that LANDLORD AND Tenant AGREE THAT TENANT must
perform before the Vacation Date. If Tenant fails to arrange for such
inspection, then Landlord may conduct such inspection and Landlord's
determination of the work Tenant is required to perform before the
Vacation Date shall be conclusive. If Tenant fails to perform such work
before the Vacation Date, then Landlord may perform) such work at Tenant's
cost. Tenant shall pay all costs incurred by Landlord in performing such
work within ten (10) days after Landlord's request therefor.
13. ASSIGNMENT AND SUBLETTING.
(a) Tenant shall not assign, sublease, transfer or encumber
this Lease or any interest therein or grant any license, concession,
or other right of occupancy of the Premises or any portion thereof or
otherwise permit the use of the Premises or any portion thereof by
any party other than Tenant (any of which events is hereinafter
called an "assignment") without the prior written consent of,
Landlord, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD OR
DELAYED. Any such attempted assignment in violation of the terms and
covenants of this Paragraph shall, exercisable in Landlord's sale and
absolute discretion, be voidable. NOTWITHSTANDING THE FOREGOING,
TENANT MAY ASSIGN OR SUBLET TO A PARENT, SUBSIDIARY, OR AFFILIATE, OR
A SUCCESSOR IN THE EVENT OF A MERGER OR SALE OF ALL OR SUBSTANTIALLY
ALL OF THE TENANT'S ASSETS, UPON WHICH EVENT LANDLORD'S CONSENT
(PROVIDED THAT SUCH PARTY IS, IN LANDLORD'S SOLE OPINION),
FINANCIALLY ACCEPTABLE), SHALL NOT BE UNREASONABLY WITHHELD OR
DELAYED. Consent by Landlord to one or more assignments shall not
operate as a waiver of Landlord's rights as to any subsequent
assignments. In addition, Tenant shall not, without Landlord's
consent, publicly offer to assign the Lease nor advertise the Lease
for assignment in any media, including but not limited to newspapers,
periodicals, radio, television, circulars or brochures. In the event
Tenant or any agent, representative or broker acting on behalf of
Tenant or with Tenant's knowledge violates the provisions of the
foregoing sentence, in addition to all of the remedies which Landlord
may have at law, in equity, or pursuant to the terms of this Lease,
Landlord shall be entitled to seek injunctive relief preventing such
action and Tenant shall be responsible for all costs incurred by
Landlord in connection with seeking such injunctive relief.
(b) If Tenant requests Landlord's consent to an assignment or
sublease, Tenant shall submit to Landlord, in writing, the name of
the proposed assignee or subtenant and the nature and character of
the business of the proposed assignee or subtenant, the term, use,
rental rate and all other material terms and conditions of the
proposed assignment or sublease including, without limitation,
evidence satisfactory to Landlord that the proposed assignee or
subtenant is financially responsible. Landlord shall within TEN (10)
days after Landlord's receipt of such written request and information
either (i) consent to or refuse to consent to such assignment or
sublease in writing but no such consent to an assignment or sublease
shall relieve Tenant or any guarantor of Tenant's obligations under
this Lease of any liability hereunder) (ii) in the event of a
proposed assignment of this Lease or a proposed sublease of the
entire Premises for the entire remaining term of this Lease,
terminate this Lease effective the first to occur of ninety (90) days
following written notice of such termination or the date that the
proposed assignment or proposed sublease would have come into effect.
IF LANDLORD ELECTS TO TERMINATE THIS LEASE, THEN TENANT SHALL HAVE
THE RIGHT TO WITHDRAW ITS REQUEST AND THE LEASE SHALL REMAIN IN FULL
FORCE AND EFFECT. If Landlord should fail to notify Tenant in
writing of its decision within such thirty (30) day period after the
later of the date Landlord is notified in writing of the proposed
assignment or sublease or the date Landlord has received all required
information concerning the proposed assignee or subtenant and the
proposed assignment or sublease, Landlord shall be deemed to have
refused to consent to such assignment or sublease, and to have
elected to keep this Lease in full force and effect. In the event
Landlord consents to any such assignment, the assignment or sublease
shall be on a form approved by Landlord, and Tenant shall bear all
costs and expenses incurred by Landlord in connection with the review
and approval of such documentation WHICH SHALL NOT EXCEED $2,000 FOR
EACH REVIEW. In no event shall the proposed assignee or subtenant be
an existing occupant of any space in the Building or an affiliate of
such occupant.
(c) All cash or other proceeds of any assignment of Tenant's
interest in this Lease and/or the Premises, whether consented to by
Landlord or not, shall be paid to Landlord notwithstanding the fact
that such proceeds exceed the rentals called for hereunder, unless
Landlord agrees to the contrary in writing, and Tenant hereby assigns
all rights it might have or ever acquire in any such proceeds to
Landlord. IF THERE IS AN APPROVED ASSIGNMENT ARISING OUT OF A SALE
OF THE TENANT BUSINESS ENTITY, THE PURCHASE PRICE OF THE BUSINESS
ENTITY SHALL NOT BE PAYABLE TO LANDLORD. IN THE CASE OF AN APPROVED
SUBLEASE, In addition to the rent hereunder, Tenant hereby covenants
and agrees to pay to Landlord all rent and other consideration which
it receives which is in excess of the rent payable hereunder within
ten (10) days following receipt thereof by Tenant. This covenant and
assignment shall benefit Landlord and its successors in ownership of
the Building and shall bind Tenant and Tenant's heirs, executors,
administrators, personal representatives, successors and assigns. in
addition to any other rights and remedies which Landlord may have
hereunder, at law or in equity, in the event Tenant has failed to pay
any rent due hereunder on or before five (5) days following the date
on which it is due, Landlord shall have the right to contact any
assignee and require that from that time forward all payments made
pursuant to the assignment shall be made directly to the Landlord.
Any assignee of Tenant's interest in this Lease (all such assignees
being hereinafter referred to as "Successors"), by occupying the
Premises and/or assuming Tenant's obligations hereunder, shall be
deemed to have assumed liability to Landlord for all amounts paid to
persons other than Landlord by such Successors in consideration of
any such assignment in violation of the provisions hereof.
(d) SUBJECT TO SECTION 13(a), If Tenant is a corporation and if
at any time during the Lease Term the person or persons who own the
voting shares at the time of the execution of this Lease cease for
any reason, including but not limited to merger, consolidation or
other reorganization involving another corporation, to own a majority
of such shares or if Tenant is a partnership and if at any time
during the Lease Term the general partner or partners who own the
general partnership interests in the partnership at the time of the
execution of this Lease, cease for any reason to own a majority of
such interests (except as the result of transfers by gift, bequest or
inheritance to or for the benefit of members of the immediate family
of such original shareholders) or partner(s)), such an event shall be
deemed to be an assignment. The preceding sentence shall not apply
whenever Tenant is a corporation the outstanding stock of which is
listed on a recognized security exchange, or if at least eighty per
cent (80) of its voting stock is owned by another corporation, the
voting stock of which is so listed.
(e) Tenant shall, despite any permitted assignment or sublease,
remain directly and primarily liable for the performance of all of
the covenants, duties, and obligations of Tenant hereunder and
Landlord shall be permitted to enforce the provisions of this Lease
against Tenant or any assignee or sublessee without demand upon or
proceeding in any way against any other person. Moreover, in the
event that the rental due and payable by a sublessee (or a
combination of the rental payable under such sublease, plus any bonus
or other consideration) thereof incident thereto) exceeds the rent
payable under this Lease, or if with respect to a permitted
assignment, permitted license, or other transfer by Tenant permitted
by Landlord, the total consideration payable to Tenant by the
assignee, licensee or other transferee exceeds the rent payable under
this Lease, then Tenant shall be bound and obligated to pay Landlord
all such excess rental and other excess consideration within ten (10)
days following receipt thereof by Tenant from such sublessee,
assignee, licensee or other transferee, as the case may be.
14. MECHANIC'S LIENS. Tenant will not permit any mechanic's liens
or other liens to be placed upon the Premises, the Building, or the
Property and nothing in this Lease shall be deemed or construed in any way
as constituting the consent or request of Landlord, express or implied, by
inference or otherwise, to any person for the performance of any labor or
the finishing of any materials to the Premises, the Building, or the
Property or any part thereof, nor as giving Tenant any right, power, or
authority to contract for or permit the rendering of any services or the
furnishing of any materials that would give rise to any mechanic's or
other liens against the Premises, the Building, or the Property. In the
event any such lien is attached to the Premises, the Building, or the
Property, then, in addition to any other right or remedy of Landlord,
Landlord may, but shall not be obligated to, discharge the same. Any
amount paid by Landlord for any of the aforesaid purposes including, but
not limited to, attorneys fees, shall be paid by Tenant to Landlord
promptly on demand as additional rent. In the event Landlord does consent
to the performance of any labor or the furnishing of any materials to the
Promises, the Building, or the Property by any party, which consent must
be in writing, Tenant shall be responsible for insuring that all such
persons procure and maintain insurance coverage against such risks, in
such amounts and with such companies as Landlord may require, including,
but not limited to, Builder's Risk and Worker's Compensation insurance.
TENANT SHALL WITHIN TEN (10) DAYS OF RECEIVING SUCH NOTICE OF LIEN OR
CLAIM (A) HAVE SUCH LIEN OR CLAIM RELEASED OR (B) DELIVER TO LANDLORD A
BOND IN FORM, CONTENT, AMOUNT AND ISSUED BY A SURETY SATISFACTORY TO
LANDLORD, INDEMNIFYING, PROTECTING, DEFENDING AND HOLDING HARMLESS THE
INDEMNITIES AGAINST ALL COSTS AND LIABILITIES RESULTING FROM SUCH LIEN OR
CLAIM AND THE FORECLOSURE OR ATTEMPTED FORECLOSURE THEREOF.
15. PROPERTY INSURANCE.
(a) Landlord shall maintain fire and extended coverage
insurance on the Building FOR ITS REPLACEMENT, WITH NO CO-INSURANCE.
The cost of such insurance shall be included as a part of Operating
Expenses and payments for losses thereunder shall be made solely to
Landlord or the mortgagees of Landlord as their interests shall
appear.
(b) Tenant shall maintain at its expense, in an amount equal to
full replacement cost, fire and extended coverage insurance on all of
its personal property, including removable trade fixtures and
leasehold and tenant improvements, located in the Premises and in
such additional amounts as are required to meet Tenant's obligations
pursuant to Paragraph 19 hereof and with deductibles in an amount
reasonably satisfactory to Landlord. Tenant shall furnish evidence
satisfactory to Landlord of the maintenance and timely renewal of
such insurance, and Tenant shall obtain and deliver to Landlord a
written obligation an the part of each insurer to notify Landlord at
least sixty J60) days prior to the modification, cancellation or
expiration of such insurance policies, In the event Tenant shall not
have delivered to Landlord a policy or certificate evidencing such
insurance at least sixty (60) days prior to the expiration date of
each expiring policy, Landlord may obtain such insurance as Landlord
may reasonably require to protect Landlord's interest (which
obtaining of insurance shall not be deemed to be a waiver of Tenant's
default hereunder). The cost to Landlord of obtaining such policies,
plus an administrative fee in the amount of ten percent (10%) of the
cost of such policies shall be paid by Tenant to Landlord as
additional rent upon demand.
16. LIABILITY INSURANCE.
Tenant and Landlord shall each maintain during The term of this
Lease a policy or policies of commercial general liability insurance
(including endorsement or separate policy for owned or non-owned
automobile liability) with respect to the respective activities of
each in the Building and on the Property, with the premiums thereon
fully paid on or before the due date, issued by and binding upon an
insurance company or companies REASONABLY approved by Landlord. Such
insurance shall afford minimum protection of net less than
$1,000,000.00 per occurrence per person coverage for bodily injury,
property damage, personal injury, or combination thereof. The term
"personal injury" herein used means false arrest, detention or
imprisonment, malicious prosecution, wrongful entry, libel and
slander. If only a combined single limit coverage is available, it
shall be for at least $1,000,000.00 per occurrence with an umbrella
policy of at least $3,000,000.00 combined single limit per
occurrence. Tenant's insurance policy shall name Landlord as an
additional insured and shall include coverage for the contractual
liability of Tenant to indemnify Landlord pursuant to Paragraph 18 of
this Lease and shall have deductibles in an amount reasonably
satisfactory to Landlord. Tenant shall furnish certificates of such
insurance and such other evidence satisfactory to Landlord of the
maintenance of all insurance coverages required hereunder, and Tenant
shall obtain a written obligation on the part of each insurance
company to notify Landlord at least 30 days before cancellation of a
material change of any such insurance. All such insurance policies
shall be in form and issued by companies reasonably satisfactory to
Landlord. The insurance carried by Tenant pursuant to this
subparagraph shall be at Tenant's sole cost and expense; and the
insurance carried by Landlord pursuant to this subparagraph shall be
included in Operating Expenses.
17. FORMS OF POLICIES; INCREASE IN PREMIUMS; WAIVER OF CLAIMS.
(a) The insurance requirements set forth in Paragraphs 15 and
16 are independent of the waiver, indemnification, and other
obligations under this Lease and will not be construed or interpreted
in any way to restrict, limit or modify the waiver, indemnification
and other obligations or to in any way limit any party's liability
under this Lease. In addition to the requirements set forth in
Paragraphs 15 and 16, the insurance required of Tenant under this
Lease must be issued by an insurance company, qualified to do
business in the State of Colorado and with a rating of no less than A-
VIII in the current Best's Insurance Guide, or A- in the current
Standard & Poor Insurance Solvency Review, or that is otherwise
acceptable to Landlord, and admitted to engage in the business of
insurance in the State; be primary insurance for all claims under it
and provide that any insurance carried by Landlord and Landlord's
lenders is strictly excess, secondary and noncontributing with any
insurance carried by Tenant; and provide that insurance may not be
canceled, nonrenewed or the subject of material change in coverage or
available limits of coverage, except upon thirty (30) days' prior
written notice to Landlord and Landlord's lenders. Tenant will
deliver either a duplicate original or a legally enforceable
certificate of insurance on all policies procured by Tenant in
compliance with Tenant's obligations under this Lease, together with
evidence satisfactory to Landlord of the payment of the premiums
therefor, to Landlord on or before the date Tenant first occupies any
portion of the Premises, at least thirty (30) days before the
expiration date of any policy and upon the renewal of any policy.
Landlord must give its prior written approval to all deductibles and
self-insured retentions under Tenant's policies. Tenant may comply
with its insurance coverage requirements through a blanket policy,
provided Tenant, at Tenant's sole expense, procures a "per location"
endorsement, or equivalent reasonably acceptable to Landlord, so that
the general aggregate and other limits apply separately and
specifically to the Premises.
(b) If Tenant's business operations, conduct or use of the
Premises or any other part of the Project causes an increase in the
premium for any insurance policy carried by Landlord, Tenant will,
within ten (10) days after receipt of notice from Landlord, reimburse
Landlord for the entire increase.
(c) Notwithstanding anything herein to the contrary, each of
Landlord and Tenant hereby waives all claims and causes of action
(including claims of subrogation on behalf of its insurer) against
the other and the other's agents, officers and employees to the
extent that the loss or damage to any property, or bodily injury or
personal injury, to which such claim or cause of action relates is
covered by insurance carried or required to be carried by such
waiving party. The parties expressly acknowledge and agree that such
waiver extends to claims of negligence by such other party, its
agents, officers and employees (and with respect to Landlord, the
Project manager).
18. INDEMNITY. TO THE EXTENT NOT CAUSED BY THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF LANDLORD, Neither Landlord nor any of its officers,
directors, employees, or agents shall be liable to Tenant, or to Tenant's
agents, servants, employees, customers, licensees, or invitees for any
injury to person or damage to property caused by any act, omission, or
neglect of Tenant, its agents, servants, employees, customers, invitees,
licensees or any other person entering the Building or upon the Project
under the invitation of Tenant or arising out of the use of the Project,
Building or Promises by Tenant (each, a "TENANT PARTY") and the conduct of
its business or out of a default by Tenant in the performance of its
obligations hereunder. TO THE EXTENT NOT EXPRESSLY PROHIBITED BY LAW,
LANDLORD AND TENANT EACH IN EITHER CASE, THE "INDEMNITOR") AGREE TO HOLD
HARMLESS AND INDEMNIFY THE OTHER AND THE OTHER'S AGENTS, PARTNERS,
SHAREHOLDERS, OFFICERS, DIRECTORS, BENEFICIARIES AND EMPLOYEES
(COLLECTIVELY, THE "INDEMNITEES") FROM ANY LOSSES, DAMAGES, JUDGMENTS,
CLAIMS, EXPENSES, COSTS AND LIABILITIES IMPOSED UPON OR INCURRED BY OR
ASSERTED AGAINST THE INDEMNITEES, INCLUDING REASONABLE ATTORNEYS' FEES AND
EXPENSES. FOR DEATH OR INJURY TO THIRD PARTIES OTHER THAN INDEMNITEES
THAT MAY ARISE FROM WILLFUL MISCONDUCT OF INDEMNITOR OR ANY OF
INDEMNITOR'S AGENTS, PARTNERS OR EMPLOYEES. SUCH THIRD PARTIES SHALL NOT
BE DEEMED THIRD PARTY BENEFICIARIES OF THIS AGREEMENT. IN CASE ANY
ACTION, SUIT OR PROCEEDING IS BROUGHT AGAINST ANY OF THE INDEMNITEES BY
REASON OF ANY SUCH ACT OF INDEMNITOR OR ANY OF INDEMNITOR'S AGENTS OR
EMPLOYEES, THEN INDEMNITOR WILL, AT INDEMNITOR'S EXPENSE AND AT THE OPTION
OF SAID INDEMNITEES, BY COUNSEL REASONABLY APPROVED BY SAID INDEMNITEES,
RESIST AND DEFEND SUCH ACTION, SUIT OR PROCEEDING. SUCH INDEMNITY FOR THE
BENEFIT OF INDEMNITEES SHALL BE ENFORCEABLE EVEN IF INDEMNITEES, OR ANY
ONE OR MORE OF THEM HAVE OR HAS CAUSED OR PARTICIPATED IN CAUSING SUCH
LIABILITY AND CLAIMS BY THEIR JOINT OR CONCURRENT ACTS, NEGLIGENT OR
INTENTIONAL, OR OTHERWISE. Notwithstanding the terms of this Lease to the
contrary, the terms of this paragraph shall survive the expiration or
earlier termination of this Lease.
19. CASUALTY DAMAGE.
(a) If the Premises or any part thereof shall be damaged by
fire or other casualty, Tenant shall give prompt written notice
thereof to Landlord. In case the Building shall be so damaged that
substantial alteration or reconstruction of the Building shall, in
Landlord's sole opinion, be required (whether or not the Premises
shall have been damaged by such casualty) or in the event there is
less than one (1) year of the Lease Term remaining or in the event
any mortgagee of Landlord's should require that the insurance
proceeds payable as a result of a casualty be applied to the payment
of the mortgage debt or in the event of any material uninsured loss
to the Building, Landlord may, at its option, terminate this Lease
EFFECTIVE THE DATE OF THE DAMAGE BY CASUALTY, by notifying Tenant in
writing of such termination within THIRTY (30) days after the date of
such casualty. If Landlord does not thus elect to terminate this
Lease, and the Lease is not terminated pursuant to subparagraph (c)
below, Landlord shall commence and proceed with reasonable diligence
to restore the Building, and the improvements located within the
Premises to Building Standard condition (except that Landlord shall
not be responsible for delays not within the control of Landlord).
Notwithstanding the foregoing, Landlord's obligation to restore the
Building, and the improvements located within the Premises, if any,
for which Landlord had financial responsibility pursuant to the Work
Letter Agreement, shall not require Landlord to expend for such
repair and restoration work more than the insurance proceeds actually
received by the Landlord as a result of the casualty. When the
repairs described in the preceding two sentences have been completed
by Landlord, Tenant shall complete the restoration of all
improvements, including trade fixtures and equipment, which are
necessary to permit Tenant's re-occupancy of the Premises TO THE
EXTENT OF INSURANCE PROCEEDS ACTUALLY RECEIVED BY TENANT. Except as
set forth above, all cost and expense of reconstructing the Premises
shall be paid by Tenant, and Tenant shall present Landlord with
evidence satisfactory to Landlord of Tenant's ability to pay such
costs prior to Landlord's commencement of repair and restoration of
the Premises.
(b) Landlord shall not be liable for any inconvenience or
annoyance to Tenant or injury to the business of Tenant resulting in
any way from such damage or the repair thereof, except that, subject
to the provisions of the next sentence, Landlord shall allow Tenant a
fair diminution of rent during the time and to the extent the
Premises are unfit for occupancy. If the Premises or any other
portion of the Building is damaged by fire or other casualty
resulting from the fault or negligence of Tenant or any Tenant Party,
the rent hereunder shall not be diminished during the repair of such
damage and Tenant shall be liable to Landlord for the cost of the
repair and restoration of the Building caused thereby to the extent
such cost and expense is not covered by insurance proceeds.
(c) Notwithstanding anything in the Paragraph 19 to the
contrary, if all or any portion of the Premises shall be made
untenantable by a fire or other casualty, Landlord shall with
reasonable promptness, cause an architect or general contractor
selected by Landlord to estimate the amount of time required to
substantially complete repair and restoration of the Premises and
make the Premises tenantable again, using standard working methods
(the "Completion Estimate"). If the Completion Estimate indicates
that the Premises cannot be made tenantable within twelve (12) months
from the date the repair and restoration is started, either party
shall have the right to terminate this Lease by giving written notice
to the other of such election within ten (10) days after its receipt
of the Completion Estimate. Tenant, however, shall not have the
right to terminate this Lease in the event that the fire or casualty
in question was caused by the negligence or intentional misconduct of
Tenant or any Tenant Party or if Tenant is then in default of this
Lease. If the Completion Estimate indicates that the Premises can be
made tenantable with twelve (12) months from the date the repair and
restoration is started and Landlord has not otherwise exercised its
right to terminate the Lease pursuant to the terms hereof, or if the
Completion Estimate indicates that the Premises cannot be made
tenantable with twelve (12) months but neither party terminates this
Lease pursuant to this Xxxxxxxxx 00, Xxxxxxxx shall proceed with
reasonable promptness to repair and restore the Premises.
(d) If pursuant to subparagraph (c) Tenant was entitled to but
elected not to exercise its right to terminate the Lease and Landlord
does not substantially complete the repair and restoration of the
Premises within two (21) months after the expiration of the estimated
period of time set forth in the Completion Estimate, which period
shall be extended to the extent of any Reconstruction Delays, then
provided Tenant is not then in default hereunder) Tenant may
terminate this Lease by written notice to Landlord within fifteen
(15) days after the expiration of such period, as the same nay be
extended (but in all events prior to substantial completion of such
repair and restoration). For purposes of this Lease, the term
"Reconstruction Delays" shall mean: (i) any delays caused by the
insurance adjustment process; (ii) any delays caused by Tenant, and
(iii) any delays caused by events of Force Majeure.
20. DAMAGES FROM CERTAIN CAUSES. SO LONG AS LANDLORD MAINTAINS THE
INSURANCE COVERAGES REQUIRED UNDER THIS LEASE, Landlord shall not be
liable to Tenant for any injury to person or damage to property sustained
by Tenant or any person claiming through Tenant resulting from any
accident or occurrence in the Premises or any other portion of the Project
caused by the Premises or any other portion of the Building becoming out
of repair or by defect in or failure of equipment, pipes, or wiring, or by
broken glass, or by the backing up of drains, or by gas, water, steam,
electricity, or oil leaking, escaping or flowing into the Premises, nor
shall Landlord be liable to Tenant for any loss or damage that may be
occasioned by or through the acts or omissions of other tenants of the
Building or of any other persons whomsoever, including, but not limited to
riot, strike, insurrection, war, court order, requisition, order of any
governmental body or authority, acts of God, fire or theft.
21. CONDEMNATION. If more than 50 of the Premises is taken for any
public or quasi-public use by right of eminent domain or private purchase
in lieu thereof (a "TAKING"), and the Taking prevents or materially
interferes with the use of the remainder of the Premises for the purpose
for which they were leased to Tenant, either party may terminate this
Lease by delivering to the other written notice thereof within thirty (30)
days after the Taking, in which case rent shall be abated during the
unexpired portion of the Term, effective on the date of such Taking. It
(a) less than 50 of the Premises are subject to a Taking or (b) more than
500a of the Premises are subject to a Taking, but the Taking does not
prevent or materially interfere with the use of the remainder of the
Premises for the purpose for which they were leased to Tenant, then
neither party may terminate this Lease, but the rent payable during the
unexpired portion of the Term shall be reduced to such extent as may be
fair and reasonable under the circumstances. All compensation awarded for
any Taking shall be the property of Landlord and Tenant assigns any
interest it may have in any such award to Landlord; however, Landlord
shall have no interest in any award made to Tenant for loss of business or
goodwill or for the taking of Tenant's trade fixtures, if a separate award
for such items is made to Tenant.
22. HAZARDOUS SUBSTANCES. Tenant hereby represents and warrants to
Landlord the following:
(a) No toxic or hazardous substances or wastes, pollutants or
contaminants (including, without limitation, asbestos, urea
formaldehyde, the group of organic compounds known as polychlorinated
biphenyls, petroleum products including gasoline, fuel oil, crude oil
and various constituents of such products, radon, and any hazardous
substance as defined in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. 9601-9657, as
amended ("CERCLA") (collectively, "Environmental Pollutants") other
than customary office supplies and cleaning supplies stored and
handled within the Premises in accordance with all applicable laws,
will generated, treated, stored, released or disposed of, or
otherwise placed, deposited in or located on the Project, and no
activity shall be taken on the Project, by Tenant or any Tenant Party
that would cause or contribute to (i) the Project or any part thereof
to become a generation, treatment, storage or disposal facility
within the meaning of or otherwise bring the Premised within the
ambit of the Resource Conservation and Recovery Act of 1976 ("RCRA"),
42 U.S.C. 5901 et. seq., or any similar state law or local ordinance,
iii) a release or threatened release of toxic or hazardous wastes or
substances, pollutants or contaminants, from the Project or any part
thereof within the meaning of, or otherwise result in liability in
connection with the Premises within the ambit of CERCLA, or any
similar state law or local ordinance, or (iii) the discharge of
pollutants or effluents into any water source or system, the dredging
or filling of any waters, or the discharge into the air of any
emissions, that would require a permit under the Federal Water
Pollution Control Act, 33 U.S.C. 1251 et. seq., or the Clean Air Act,
42 U.S.C. 7401 et. seq. or any similar state law or local ordinance.
(b) TENANT AGREES TO INDEMNIFY AND HOLD INDEMNITEES (AS DEFINED
IN PARAGRAPH 17 HEREIN) HARMLESS FROM AND AGAINST AND TO REIMBURSE
INDEMNITEES WITH RESPECT TO, ANY AND ALL CLAIMS, DEMANDS, CAUSES OF
ACTION, LOSS, DAMAGE, LIABILITIES, COSTS AND EXPENSES (INCLUDING
ATTORNEYS' FEES AND COURT COSTS) OF ANY AND EVERY KIND OR CHARACTER,
KNOWN OR UNKNOWN, FIXED OR CONTINGENT, ASSERTED AGAINST OR INCURRED
BY LANDLORD AT ANY TIME AND FROM TIME TO TIME BY REASON OF OR ARISING
OUT OF THE BREACH OF ANY REPRESENTATION OR WARRANTY CONTAINED IN
PARAGRAPH 22.(A) ABOVE.
(c) Tenant shall immediately notify Landlord in writing of any
release or threatened release of toxic or hazardous wastes or
substances, pollutants or contaminants of which Tenant has knowledge
whether or not the release is in quantities that would require under
law the reporting of such release to a governmental or regulatory
agency.
(d) Tenant shall immediately notify Landlord in writing of any
release or threatened release of toxic or hazardous wastes or
substances, pollutants or contaminants whether or not the release is
in quantities that would require under law the reporting of such
release to a governmental or regulatory agency.
(e) Tenant shall also immediately notify Landlord in writing
of, and shall contemporaneously provide Landlord with a copy of:
Any written notice of release of hazardous wastes or substances,
pollutants or contaminants on the Project that is provided by
Tenant or any subtenant or other occupant of the Premises to a
governmental or regulatory agency:
Any notice of a violation, or a potential or alleged violation,
of any Environmental Law that is received by Tenant or any
subtenant or other occupant of the Premises from any
governmental or regulatory agency;
Any inquiry, investigation, enforcement, cleanup, removal, or
other action that is instituted or threatened by a governmental
or regulatory agency against Tenant or any subtenant or other
occupant of the Premises and that relates to the release or
discharge of hazardous wastes or substances, pollutants or
contaminants on or from the Project;
Any claim that is instituted or threatened by any third party
against Tenant or any subtenant or other occupant of the
premises and that relates to any release or discharge of
hazardous wastes or substances, pollutants or contaminants on or
from the premises; and
Any notice of the loss of any environmental operating permit by
Tenant or any subtenant or other occupant of the Premises.
Failure to comply with this section shall constitute a material
default under the Lease. Notwithstanding the terms of this Lease to the
contrary, the terms of this paragraph shall survive the expiration or
earlier termination of this Lease.
23. AMERICANS WITH DISABILITIES ACT. Tenant agrees to comply with
all requirements of this Americans with Disabilities Act (Public Law (July
26, 1990) applicable to the Premises and such other current acts or other
subsequent acts, (whether federal or state) addressing like issues as are
enacted or amended. Tenant agrees to indemnify and hold Landlord harmless
from any and all expenses, liabilities, costs or damages suffered by
Landlord as a result of additional obligations which may be imposed on the
Building or the Property under of such acts by virtue of Tenant's
operations and/or occupancy, including the alleged negligence of the
Landlord. Tenant acknowledges that it will be wholly responsible for any
provision of the Lease which could arguably be construed as authorizing a
violation of either Act. Any such provision shall be interpreted in a
manner which permits compliance with Such Act and is hereby amended to
permit such compliance. LANDLORD AGREES TO COMPLY WITH ALL REQUIREMENTS
OF THE AMERICANS WITH DISABILITIES ACT (PUBLIC LAW (JULY 26, 1990)
APPLICABLE TO THE PROJECT AND SUCH OTHER CURRENT ACTS OR OTHER SUBSEQUENT
ACTS, (WHETHER FEDERAL OR STATE) ADDRESSING LIKE ISSUES AS ARE ENACTED OR
AMENDED
24. EVENTS OF DEFAULT/REMEDIES.
(a) The following events shall be deemed to be events of
default under this Lease:
(i) Tenant shall fail to pay when due any Base Rental,
Operating Expense Rental or other rent payable by Tenant to
Landlord under this Lease (hereinafter sometimes referred to as
a "Monetary Default"). NOTWITHSTANDING THE FOREGOING, LANDLORD
SHALL PROVIDE TENANT WITH FIVE (5) DAYS' WRITTEN NOTICE OF SUCH
DEFAULT (A "MONETARY DEFAULT NOTICE") BEFORE LANDLORD EXERCISES
ITS REMEDIES FOR DEFAULT HEREUNDER; PROVIDED, HOWEVER, THAT
LANDLORD SHALL NOT BE REQUIRED TO GIVE A MONETARY DEFAULT NOTICE
MORE THAT ONE (1) TIME WITH RESPECT TO ANY PARTICULAR MONETARY
DEFAULT NOR MORE THAT TWO (2) TIMES IN THE AGGREGATE DURING THE
TERM OF THIS LEASE WITH RESPECT TO ANY MONETARY DEFAULT.
(ii) Any failure by Tenant (other than a Monetary Default)
to comply with any term, provision or covenant of this Lease,
which failure is not cured within ten (10) days after delivery
to Tenant of notice of the occurrence of such failure. HOWEVER,
THE CURE PERIOD SHALL BE EXTENDED TO TWENTY (20) DAYS IF SUCH
CURE IS NOT REASONABLY POSSIBLE WITHIN THE PRESCRIBED 10 DAY
PERIOD AND TENANT DILIGENTLY AND CONTINUOUSLY WORKS TO CURE THE
DEFAULT.
(iii) Tenant or any Guarantor shall become insolvent, or
shall make a transfer in fraud of creditors, or shall commit an
act of bankruptcy or shall make an assignment for the benefit of
creditors, or Tenant or any Guarantor she] admit in writing its
inability to pay its debts as they become due.
(iv) Tenant or any Guarantor shall file a petition under
any section or chapter of the United States Bankruptcy Code, as
amended, pertaining to bankruptcy, or under any similar law or
statute of the United States or any State thereof, or Tenant or
any Guarantor shall be adjudged bankrupt or insolvent in
proceedings filed against Tenant or any Guarantor thereunder; or
a petition or answer proposing the adjudication of Tenant or any
Guarantor as a bankrupt or its reorganization under any present
or future federal or state bankruptcy or similar law shall be
filed in any court and such petition or answer shall not be
discharged or denied within sixty (60) days after the filing
thereof.
(v) A receiver or trustee shall be appointed for all or
substantially all of the assets of Tenant or any Guarantor or of
the Premises or of any of Tenant's property located thereon in
any proceeding brought by Tenant or any Guarantor, or any such
receiver or trustee shall be appointed in any proceeding brought
against Tenant or any Guarantor and shall not be discharged
within sixty (60) days after such appointment or Tenant or such
Guarantor shall consent to or acquiesce in such appointment.
(vi) The leasehold estate hereunder shall be taken an
execution or other process of law in any action against Tenant.
(vii) IF FOLLOWING OCCUPANCY, Tenant shall abandon or vacate
any substantial portion of the Premises without the prior
written permission of Landlord AND WITHOUT THE TIMELY PAYMENT OF
ALL SUMS DUE UNDER THIS LEASE. If Tenant or any other person
acting on Tenant's behalf has removed, is removing or has made
preparations to remove (other than in the normal course of
business) goods, equipment, fixtures or other property from the
Premises in amounts substantial enough to indicate a probable
intent to abandon or vacate the Premises without the prior
written permission of Landlord, Tenant's abandonment of the
Premises shall be deemed conclusively established for all
purposes.
(viii) Tenant shall fail to take possession of and occupy the
Premises within thirty (30) days following the Commencement Date
or thereafter shall fail to conduct continuously its operations
in the Premises for the Permitted Use as set forth in Paragraph
4 hereof.
(ix) The liquidation, termination, dissolution, forfeiture
of right to do business or death of Tenant or any Guarantor.
(b) Upon the occurrence of any event or events of default under
this Lease, whether enumerated in this Paragraph or not, Landlord
shall have the option to pursue any one or more of the following
remedies without any notice (except as expressly prescribed herein)
or demand for possession whatsoever (and without limiting the
generality of the foregoing, Tenant hereby specifically waives notice
and demand for payment of rent or other obligations due and waives
any and all other notices or demand requirements imposed by
applicable law):
(i) Terminate this Lease, in which event Tenant shall
immediately surrender the Premises to Landlord. If Tenant fails
to surrender the Premises upon termination of the Lease
hereunder, Landlord may without prejudice to any other remedy
which it may have for possession or arrearages in rent, enter
upon and take possession of the Premises and expel or remove
Tenant and any other person who may be occupying said Premises,
or any part thereof, by force, if necessary, without being
liable for prosecution or any claim of damages therefor, and
Tenant hereby agrees to pay to Landlord on demand the amount of
all loss and damage which Landlord may suffer by reason of such
termination, whether through inability to relet the Premises on
satisfactory terms or otherwise, specifically including but not
limited to all Costs of Reletting (hereinafter defined) and any
deficiency that may arise by reason of any Reletting. If such
termination is caused by the failure to pay rent and/or the
abandonment of any substantial portion of the Premises, Landlord
may elect, by sending written notice thereof to Tenant, to
receive liquidated damages in an amount equal to the sum of the
Base Rental, Operating Expense Rental and other rent payable
hereunder for the month during which the Lease is terminated
times the lesser of (A) twelve (12) or (B) the number of months
remaining in the Lease Term as of the date of such failure to
pay rent and/or abandonment of any substantial portion of the
Premises. Such liquidated damages shall be in lieu of the
payment of loss and damage Landlord may suffer by reason of such
termination as provided in the preceding sentence but shall not
be in lieu of or reduce in any way any amount (including accrued
rent) or damages due to breach of covenant (whether or not
liquidated) payable by Tenant to Landlord which is accrued and
outstanding at the time of the termination of the Lease.
(ii) Enter upon and take possession of the Premises and
expel or remove Tenant or any other person who may be occupying
said Premises, or any part thereof, by force, if necessary,
without having any civil or criminal liability therefor and
without terminating this Lease. Landlord may (but shall be
under no obligation to) relet the Premises or any part thereof
for the account of Tenant, in the name of Tenant or Landlord or
otherwise, without notice to Tenant for such term or terms which
may be greater or less than the period which would otherwise
have constituted the balance of the Lease Term and on such
conditions (which may include concessions or free rent) and for
such uses as Landlord in its absolute discretion may determine,
and Landlord may collect and receive any rents payable by reason
of such reletting. Tenant agrees to pay Landlord on demand all
Costs of Reletting and any deficiency that may arise by reason
of such reletting. Landlord shall not 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 any such reletting. No
such re-entry or taking of 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. If Landlord elects to terminate Tenant's
right to possession of the Premises without terminating this
Lease, Tenant shall continue to be liable for all rent and
Landlord shall use reasonable efforts to relet the Premises or
any part thereof to a substitute tenant or tenants for a period
of time equal to or lesser or greater than the remainder of the
Term on whatever terms and conditions Landlord, in Landlord's
good faith discretion, deems advisable. For purposes hereof,
Landlord shall be deemed to have used "reasonable efforts" to
relet if Landlord places its customary "For Lease" sign upon the
Premises and places the Premises for lease with a reputable
broker. In no event shall Landlord be obligated to lease the
Premises in priority to other space within the Project.
(iii) Enter upon the Premises by force if necessary without
having any civil or criminal liability therefor, and do whatever
Tenant is obligated to do under the terms of this Lease and
Tenant agrees to reimburse Landlord on demand for any expense
which Landlord may incur in thus affecting compliance with
Tenant's obligations under this Lease together with interest at
the Default Rate and Tenant further agrees that Landlord shall
not be liable for any damages resulting to Tenant from such
action, whether caused by the negligence of Landlord or
otherwise.
(iv) Terminate this Lease by giving Tenant written notice
thereof, in which event, Tenant shall pay to Landlord the sum of
(i) all rent accrued hereunder through the date of termination,
(ii) all Costs of Reletting, and (iii) an amount equal to (A)
the total rent that Tenant would have been required to pay for
the remainder of the Lease Term discounted to present value
minus (B) the then present fair rental value of the Premises for
such period, similarly discounted. In order to regain
possession of the Premises and to deny Tenant access thereto,
Landlord or its agent may, at the expense and liability of the
Tenant, alter or change any or all locks or other security
devices controlling access to the Premises without posting or
giving notice of any kind to Tenant. Landlord shall have no
obligation to provide Tenant a key or grant Tenant access to the
Premises so long as Tenant is in default under this Lease.
Tenant shall not be entitled to recover possession of the
Premises, terminate this Lease or recover any actual,
incidental, consequential, punitive, statutory or other damages
or award of attorneys' fees, by reason of Landlord's alteration
or change of any luck or other security device and the resulting
exclusion from the Premises of the Tenant or Tenant's agents,
servants, employees, customers, licensees, invitees or any other
persons from the Premises. Landlord may, without notice, remove
and either dispose of or store, at Tenant's expense, any
property belonging to Tenant that remains in the Premises after
Landlord has regained possession thereof.
(c) For purposes of this Lease, the term "Costs of Reletting"
shall mean all costs and expenses incurred by Landlord in connection
with the reletting of the Premises, including without limitation the
cost of cleaning, renovation, repairs, decoration and alteration of
the Premises for a new tenant or tenants, advertisement, marketing,
brokerage and legal fees, the cost of protecting or caring for the
Premises while vacant, the cost of removing and storing any property
located on the Premises, any increase in insurance premiums caused by
the vacancy of the Premises and any other out-of-pocket expenses
incurred by Landlord including tenant inducements such as the cost of
moving the new tenant or tenants and the cost of assuming any portion
of the existing lease(s) of the new tenant(s).
(d) Except as otherwise herein provided, no repossession or re-
entering on the Premises or any part thereof pursuant to subparagraph
(b) hereof or otherwise shall relieve Tenant or any Guarantor of its
liabilities and obligations hereunder, all of which shall survive
such repossession or re-entering. Notwithstanding any such
repossession or re-entering on the Premises or any part thereof by
reason of the occurrence of an event of default, Tenant will pay to
Landlord the Base Rental, Operating Expense Rental and other rent or
other sum required to be paid by Tenant pursuant to this Lease.
(e) No right or remedy herein conferred upon or reserved to
Landlord is intended to be exclusive of any other right or remedy,
and each and every right and remedy shall be cumulative and in
addition to any other right or remedy given hereunder or now or
hereafter existing by agreement, applicable law or in equity. In
addition to other remedies provided in this Lease, Landlord shall be
entitled, to the extent permitted by applicable law, to injunctive
relief in case of the violation, or attempted or threatened
violation, of any of the covenants, agreements, conditions or
provisions of this Lease, or to a decree compelling performance of
any of the other covenants, agreements, conditions or provisions of
this Lease, or to any other remedy allowed to Landlord at law or in
equity. Forbearance by Landlord to enforce one or more of the
remedies herein provided upon an event of default shall not be deemed
or construed to constitute a waiver of such default.
(f) This Paragraph 24 shall be enforceable to the maximum
extent such enforcement is not prohibited by applicable law, and the
unenforceability of any portion thereof shall not thereby render
unenforceable any other portion. To the extent permitted by
applicable law, Tenant waives any statutory rights which conflict
with this Paragraph 24. To the extent any provision of applicable
law requires some action by Landlord to evidence or effect the
termination of this Lease or to evidence the termination of Tenant's
right of occupancy, Tenant and Landlord hereby agree that written
notice by Landlord to any of Tenant's agents, servants or employees,
which specifically sets forth Landlord's intention to terminate,
shall be sufficient to evidence and effect the termination herein
provided for.
25. TENANT REMEDIES. Except to the extent specifically provided
herein, Tenant shall not have the right to an abatement of rent or to
terminate this Lease as a result of Landlord's default as to any covenant
or agreement contained in this Lease or as a result of the breach of any
promise or inducement in connection herewith, whether in this Lease or
elsewhere and Tenant hereby waives such remedies of abatement of rent and
termination. Tenant hereby agrees that Tenant's remedies for default
hereunder or in any way arising in connection with this Lease including
any breach of any promise or inducement or warranty, express or implied,
shall be limited to suit for direct and proximate damages AND INJUNCTIVE
RELIEF provided that Tenant has given the notices as hereinafter required.
Notwithstanding anything to the contrary contained in this Lease, the
liability of Landlord to Tenant for any default by Landlord under the
terms of this Lease shall be limited to the interest of Landlord in the
Building and the Property and Tenant agrees to look solely to Landlord's
interest in the Building and the Property for the recovery of any judgment
against the Landlord, it being intended that Landlord shall not be
personally liable for any judgment or deficiency. Tenant hereby covenants
that, prior to the filing of any suit for direct and proximate damages, it
shall give Landlord and all mortgagees whom Tenant has been notified hold
mortgages or deed of trust liens on the Property, Building or Premises
("Landlord's mortgagees") notice and reasonable time to cure any alleged
default by Landlord.
Notwithstanding the foregoing, Tenant shall bring such suit within
six months of the Landlord's default hereunder, unless agreed by the
parties hereto to extend such time in writing. Tenant's failure to assert
such rights within six months shall be construed as a waiver of Tenant's
remedies herein.
26. NO WAIVER. Failure of Landlord to declare any default
immediately upon its occurrence, or delay in taking any action in
connection with an event of default, shall not constitute a waiver of such
default, nor shall. It constitute an estoppel against Landlord, but
Landlord shall have the right to declare the default at any time and take
such action as is lawful or authorized under this Lease. Failure by
Landlord to enforce its rights with respect to any one default shall not
constitute a waiver of its rights with respect to any subsequent default.
Receipt by Landlord of Tenant's keys to the Premises shall not constitute
an acceptance of surrender of the Premises.
27. EVENT OF BANKRUPTCY. In addition to, and in no way limiting the
other remedies set forth herein Landlord and Tenant agree that if Tenant
ever becomes the subject of a voluntary or involuntary bankruptcy,
reorganization, composition, or other similar type proceeding under the
federal bankruptcy laws, as now enacted or hereinafter amended, then:
(a) "Adequate protection" of Landlord's interest in the
Premises pursuant to the provisions of Section 361 and 363 (or their
successor sections) of the Bankruptcy Code, 11 U.S.C. Paragraph 101,
et seq. (such Bankruptcy Code as amended from time to time being
herein referred to as the "Bankruptcy Code"), prior to assumption
and/or assignment of the Lease by Tenant shall include, but not be
limited to all (or any part) of the following:
(i) the continued payment by Tenant of the Base Rental,
Operating Expense Rental and all other rent due and owing
hereunder and the performance of all other covenants and
obligations hereunder by Tenant;
(ii) the hiring of security guards to protect the Premises
if Tenant abandons and/or ceases operations; such obligation of
Tenant only to be effective so long as Tenant remains in
possession and control of the Premises to the exclusion of
Landlord;
(iii) the furnishing of an additional/new Security Deposit
by Tenant in the amount of three (3) times the then-current
monthly Base Rental, Operating Expense Rental and other rent
payable hereunder.
(b) "Adequate assurance of future performance" by Tenant and/or
any assignee of Tenant pursuant to Bankruptcy Code Section 365 will
include (but not be limited to) payment of an additional/new Security
Deposit in the amount of three (3) times the then-current Base Rental
and Operating Expense Rental payable hereunder.
(c) Any person or entity to which this Lease is assigned
pursuant to the provisions of the Bankruptcy Code, shall be deemed
without further act or deed to have assumed all of the obligations of
Tenant arising under this Lease on and after the effective date of
such assignment. Any such assignee shall, upon demand by Landlord,
execute and deliver to Landlord an instrument confirming such
assumption of liability.
(d) Notwithstanding anything in this Lease to the contrary, all
amounts payable by Tenant to or on behalf of the Landlord under this
Lease, whether or not expressly denominated as "rent", shall
constitute "rent" for the purposes of Section 502(b)(6) of the
Bankruptcy Code.
(e) If this Lease is assigned to any person or entity pursuant
to the provisions of the Bankruptcy Code, any and all monies or other
considerations payable or otherwise to be delivered to Landlord
(including Base Rental, Operating Expense Rental and other rent
hereunder, shall be and remain the exclusive property of Landlord and
shall not constitute property of Tenant or of the bankruptcy estate
of Tenant. Any and all monies or other considerations constituting
Landlord's property under the preceding sentence not paid or
delivered to Landlord shall be held in trust by Tenant or Tenant's
bankruptcy estate for the benefit of Landlord and shall be promptly
paid to or turned over to Landlord.
(f) It Tenant assumes this Lease and proposes to assign the
same pursuant to the provisions of the Bankruptcy Code to any person
or entity who shall have made a bona fide offer to accept an
assignment of this Lease on terms acceptable to the Tenant, then
notice of such proposed offer/assignment, setting forth (i) the name
and address of such person or entity; (ii) all of the terms and
conditions of such offer, and (iii) the adequate assurance to be
provided Landlord to assure such person's or entity's future
performance under the Lease, shall be given to Landlord by Tenant no
later than twenty (20) days after receipt by Tenant, but in any event
no later than ten (10) days prior to the date that Tenant shall make
application to a court of competent jurisdiction for authority and
approval to enter into such assumption and assignment, and Landlord
shall thereupon have the prior right and option, to be exercised by
notice to Tenant given at any time prior to the effective date of
such proposed assignment, to accept an assignment of this Lease upon
the same terms and conditions and for the same consideration, if any,
as the bona fide offer made by such persons or entity, less any
brokerage commission which may be payable out of the consideration to
be paid by such person for the assignment of this Lease.
(g) To the extent permitted by law, Landlord and Tenant agree
that this Lease is a contract under which applicable law excuses
Landlord from accepting performance from (or rendering performance
to) any person or entity other than Tenant within the meaning of
Sections 365(c) and 365(e)(2) of the Bankruptcy Code.
28. PEACEFUL ENJOYMENT. Tenant shall, and r-nay peacefully have,
hold, and enjoy the Premises, subject to the other terms hereof, provided
that Tenant pays the rent and other sums herein recited to be paid by
Tenant and performs all of Tenant's covenants and agreements herein
contained. This covenant and any and all other covenants of Landlord
shall be binding upon Landlord and its successors only with respect to
breaches occurring during its or their respective periods of ownership of
the Landlord's interest hereunder.
29. PARKING. Tenant and its employees and invitees shall have the
non-exclusive right to use, in common with others, any parking areas
associated with the Premises which Landlord has designated for such use,
subject to (a) such reasonable rules and regulations as Landlord may
promulgate from time to time and (b) rights of ingress and egress of other
tenants and their employees, agents and invitees. Landlord shall not be
responsible for enforcing Tenant's parking rights against third parties.
If Exhibit "G" "Parking Agreement" is attached hereto, the rights of
Tenant and its employees and invitees to use the parking areas within the
Project are subject to the provisions of such exhibit. LANDLORD SHALL NOT
REDUCE THE TOTAL NUMBER OF PARKING SPACES AVAILABLE TO TENANT DURING THE
LEASE TERM.
30. REMOVAL OF PROPERTY AT EXPIRATION OF LEASE; HOLDING OVER.
(a) Any and all alterations, additions, improvements, attached
furniture, equipment, fixtures, and any unattached or movable
equipment, furniture, trade fixtures or other personality which was
acquired with funds provided by or on behalf of Landlord installed an
or located in or around the Premises shall become the property of
Landlord upon termination of this Lease. In addition, all other
personal property which shall remain in the Premises for more than
five (5) days following either the termination of this Lease or the
entry of the Premises by Landlord following Tenant's default
hereunder shall, at Landlord's option, become the property of
Landlord. Landlord may, nonetheless, require Tenant to remove such
fixtures, furniture, trade fixtures, equipment, improvements,
alterations, additions and personal property, including but not
limited to telephone, data, and/or network cabling, installed on or
located in the Premises as are designated by Landlord (the "Required
Removables") at Tenant's sole cost, IF LANDLORD NOTIFIES TENANT NO
LATER THAN NINETY (90) DAYS PRIOR TO THE END OF THE TERM OR EXTENDED
TERM IF THE RENEWAL OPTION IS EXERCISED. In the event that Landlord
so elects, and Tenant fails to remove the Required Removables,
Landlord may remove the Required Removables at Tenant's cost, and
Tenant shall pay Landlord on demand, or Landlord may deduct from
Tenant's Security Deposit, all costs incurred in removing, storing
and/or disposing of the Required Removables. Landlord, at is sole
option, shall inspect any and all alterations and repairs made by or
on behalf of the Tenant. All costs associated with the inspection
and testing of such alterations or repairs shall be reimbursed to
Landlord by Tenant within ten (10) days of such demand.
Notwithstanding the terms of this lease to the contrary, the terms of
this paragraph shall survive the expiration or earlier termination of
this Lease.
(b) In the event of holding over by Tenant after expiration or
other termination of this Lease or in the event Tenant continues to
occupy the Premises after the termination of Tenant's right of
possession pursuant to Paragraph 24(b) hereof, Tenant shall become a
Tenant at sufferance and, throughout the entire holdover period,
Tenant shall pay rent equal to ONE HUNDRED FIFTY PERCENT the sum (or
150%) of the greater of (i) then current market rate or (ii) the sum
of the Base Rental and Operating Expense Rental which would otherwise
have been applicable had the term of this Lease continued through the
period of such holding over by Tenant. No holding over by Tenant or
payments of money by Tenant to Landlord after the expiration of the
term of this Lease shall be construed to extend the term of this
Lease or prevent Landlord from recovery of immediate possession of
the Premises by summary proceedings or otherwise unless Landlord has
sent written notice to Tenant that Landlord has elected to extend the
term of the Lease. Tenant shall be liable to Landlord for all
damage, including any consequential damage, which Landlord may suffer
by reason of any holding over by Tenant and Tenant shall indemnify
Landlord against any and all claims made by any other tenant or
prospective tenant against Landlord for delay by Landlord in
delivering possession of the Premises to such other tenant or
prospective tenant.
31. SUBORDINATION TO MORTGAGE. Tenant accepts this Lease subject
and subordinate to any mortgage deed of trust or other lien presently
existing or hereafter arising upon the Premises, or upon the Building
and/or the Property and to any renewals, modifications, refinancings and
extensions thereof, but Tenant agrees that any such mortgagee shall have
the right at any time to subordinate such mortgage, deed of trust or other
lien to this Lease on such terms and subject to such conditions as such
mortgagee may deem appropriate in its discretion. This clause shall be
self-operative and no further instrument of subordination shall be
required. However, Landlord is hereby irrevocably vested with full power
and authority to subordinate this Lease to any mortgage, deed of trust or
other lion now existing or hereafter placed upon the Premises, or the
Building and/or the Property and Tenant agrees upon demand to execute such
further instruments subordinating this Lease or attorning to the holder of
any such liens as Landlord may request. The terms of this Lease are
subject to approval by the Landlord's existing lender(s) and any lender(s)
who, at the time of the execution of this Lease, have committed or are
considering committing to Landlord to make a loan secured by all or any
portion of the Property, and such approval is a condition precedent to
Landlord's obligations hereunder. In the event that Tenant should fail to
execute any subordination or other agreement required by this Paragraph
promptly as requested, Tenant hereby irrevocably constitutes Landlord as
its attorney-in-fact to execute such instrument in Tenant's name, place
and stead, it being agreed that such power is one coupled with an interest
in Landlord and is accordingly irrevocable. TENANT'S SUBORDINATION TO THE
INTERESTS OF ANY FUTURE LENDER IS CONTINGENT UPON THE LENDER ENTERING INTO
A NONDISTURBANCE AGREEMENT WITH TENANT, IN A FORM SATISFACTORY TO SUCH
LENDER, STATING THAT TENANT'S RIGHT TO THE CONTINUED USE AND POSSESSION OF
THE PREMISES SHALL BE UNDER THAT SAME TERMS AND CONDITIONS AS SET FORTH IN
THIS LEASE PROVIDED THAT AT SUCH TIME TENANT IS NOT IN DEFAULT OF ITS
OBLIGATIONS HEREIN.
32. ESTOPPEL CERTIFICATE. Tenant agrees periodically to furnish
within ten (10) days after so requested by Landlord, ground lessor or the
holder of any deed of trust, mortgage or security agreement covering the
Building, the Land, or any interest of Landlord therein, a certificate
signed by a Tenant certifying (a) that this Lease is in full force and
effect and unmodified (or if there have been modifications, that the same
is in full force and effect as modified and stating the modifications),
(b) as to the Commencement Date and the date through which Base Rental and
estimated Operating Expense Rental have been paid, (c) that Tenant has
accepted possession of the Premises and that any improvements required by
the terms of this Lease to be made by Landlord have been completed to the
satisfaction of Tenant, (d) that except as stated in the certificate no
rent has been paid more than thirty (30) days in advance of its due date,
(e) that the address for notices to be sent to Tenant is as set forth in
this Lease (or has been changed by notice duly given and is as set forth
in the certificate), (f) that except as stated in the certificate, Tenant,
as of the date of such certificate, has no charge, lien, or claim of
offset against rent due or to become due, (g) that except as stated in the
certificate, Landlord is not then in default under this Lease, (h) as to
the amount of Rentable Area then occupied by Tenant, (i) that there are no
renewal or extension options, purchase options, rights of first refusal or
the like in favor of Tenant except as set forth in this Lease, (j) the
amount and nature of accounts payable to Landlord under terms of this
Lease and (k) as to such other matters as may be requested by Landlord or
ground lessor or the holder of any such deed of trust, mortgage or
security agreement. Any such certificate may be relied upon by any ground
lessor, prospective purchaser, secured party, mortgagee or any beneficiary
under any mortgage, deed of trust on the Building or the Land or any part
thereof or interest of Landlord therein.
33. ATTORNEY'S FEES. In the event either party defaults in the
performance of any of the terms of this Lease and the other party employs
an attorney in connection therewith, the defaulting party agrees to pay
the prevailing party's reasonable attorneys' fees.
34. NOTICE. Any notice in this Lease provided for must, unless
otherwise expressly provided herein, be in writing, and may, unless
otherwise in this Lease expressly provided, be given or be served by
depositing the same in the United States mail, postage paid and certified
with return receipt requested, or by prepaid telegram, when appropriate,
addressed to the party to be notified at the address stated in this Lease
or such other address notice of which has been given to the other party or
by delivering the same in person to such party or an officer or partner of
such party. Notice deposited in the mail in the manner hereinabove
described shall be effective as of the date it is so deposited. Neither
party hereto shall be required to send any notice, request, demand,
consent, approval, or other communication required or permitted under this
lease to more than two (2) other addresses in addition to the premises.
35. SEVERABILITY. If any term or provision of this Lease, or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application
of such term or provision to persons or circumstances other than those as
to which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Lease shall be valid and
enforced to the fullest extent permitted by law.
36. RECORDATION. Tenant agrees not to record this Lease or any
memorandum hereof.
37. GOVERNING LAW. This Lease and the rights and obligations of the
parties hereto shall be interpreted, construed, and enforced in accordance
with the laws of the State.
38. FORCE MAJEURE. Whenever a period of time is herein prescribed
for the taking of any action by Landlord, Landlord shall not be liable or
responsible for, and there shall be excluded from the computation of such
period of time, any delays due to strikes, riots, acts of God, shortages
of labor or materials, war, governmental laws, regulations or
restrictions, or any other cause whatsoever beyond the control of
Landlord.
39. TIME OF PERFORMANCE. Except as expressly otherwise herein
provided, with respect to all required acts of Tenant, time is of the
essence of this Lease.
40. TRANSFERS BY LANDLORD. Landlord shall have the right to
transfer and assign, in whole or in part, all of its rights and
obligations hereunder and in the Building and Property referred to herein,
and in such event and upon such transfer AND PAYMENT OF THE SECURITY
DEPOSIT TO SUCH TRANSFEREE, Landlord shall be released from any further
obligations hereunder, and Tenant agrees to look solely to such successor
in interest of Landlord for the performance of such obligations.
41. COMMISSIONS. Landlord and Tenant hereby indemnify and hold each
other harmless against any loss, claim, expense or liability with respect
to any commissions or brokerage fees claimed on account of the execution
and/or renewal of this Lease due to any action of the indemnifying party
COMMISSIONS PAYABLE UNDER THIS TRANSACTION SHALL BE PAID BY LANDLORD.
42. JOINT AND SEVERAL LIABILITY. If there is more than one Tenant,
or if the Tenant as such is comprised of more than one person or entity,
the obligations hereunder imposed upon Tenant shall be joint and several
obligations of all such parties.
43. AUTHORITY. In the event Tenant is a corporation (including any
form of professional association), partnership (general or limited), or
other form of organization other than an individual, then each individual
executing or attesting this Lease on behalf of Tenant hereby covenants,
warrants and represents: (i) that such individual is duly authorized to
execute or attest and deliver this Lease on behalf of Tenant in accordance
with the organizational documents of Tenant; (ii) that this Lease is
binding upon Tenant; (iii) that Tenant is duly organized and legally
existing in the state of its organization, and is qualified to do business
in the State; (iv) that upon request, Tenant will provide Landlord with
true and correct copies of all organizational documents of Tenant, and any
amendments thereto; and (v) that the execution and delivery of this Lease
by Tenant will not result in any breach of, or constitute a default under
any mortgage, deed of trust, lease, loan, credit agreement, partnership
agreement or other contract or instrument to which Tenant is a party or by
which Tenant may be bound. If Tenant is a corporation, Tenant will, prior
to the Commencement Date, deliver to Landlord a copy of a resolution of
Tenant's board of directors authorizing or ratifying the execution and
delivery of this Lease, which resolution will be duly certified to
Landlord's satisfaction by the secretary or assistant secretary of Tenant.
44. FINANCIAL CONDITION OF TENANT. Tenant acknowledges that the
financial capability of Tenant to perform its obligations hereunder is
material to Landlord and that Landlord would not enter into this Lease but
for Its belief, based on its review of Tenant's financial statements, that
Tenant is capable of performing such financial obligations. Tenant hereby
represents, warrants and certifies to Landlord that its financial
statements are true and correct in all material respects.
45. EFFECT OF DELIVERY OF THIS LEASE. Landlord has delivered a copy
of this Lease to Tenant for Tenant's review only, and the delivery hereof
does not constitute an offer to Tenant or option. This Lease shall not be
effective until an original of this Lease executed by both Landlord and
Tenant and an original Guaranty, if applicable, in the form attached
hereto as EXHIBIT "F" executed by each Guarantor is delivered to and
accepted by Landlord, and this Lease has been approved by Landlord's
mortgagee.
46. ENTIRE AGREEMENT. This Lease Agreement, including the following
Exhibits:
EXHIBIT "A" - Property Description
EXHIBIT "B" - Outline and Location of Premises
EXHIBIT "C" - Operating Expense Rental
EXHIBIT "D" - Work Letter
EXHIBIT "D-1" - Base Building Shell and Core Condition
EXHIBIT "D-2" - Tenant Improvement Allowance
EXHIBIT "D-3" - Landlord's Building Standard Material
EXHIBIT "E" - Rules and Regulations
EXHIBIT "G" - Option to Renew
EXHIBIT "H" - Letter of Credit
EXHIBIT "H-1" - Form of Demand Letter of Credit
EXHIBIT "I" - Parking Agreement
constitute the entire agreement between the parties hereto with respect to
the subject matter of this Lease. Tenant expressly acknowledges and
agrees that Landlord has not made and is not making, and Tenant, in
executing and delivering this Lease, is not relying upon, any warranties,
representations, promises or statements, except to the extent that the
same are expressly set forth in this Lease. All understandings and
agreements heretofore had between the parties are merged in this Lease
which alone fully and completely expresses the agreement of the parties,
neither party relying upon any statement or representation not embodied in
this Lease.
47. NO PRESUMPTION AGAINST DRAFTER. Landlord and Tenant understand,
agree and acknowledge that this Lease has been freely negotiated by both
parties; and (ii) in any controversy, dispute or contest over the meaning,
interpretation, validity, or enforceability of this Lease or any of its
terms or conditions, there shall be not inference, presumption, or
conclusion drawn whatsoever against either party by virtue of that party
having drafted this Lease or any portion thereof.
48. WARRANTY WAIVER: EXCEPT AS SPECIFICALLY PROVIDED UNDER THIS
LEASE, LANDLORD, ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, ATTORNEYS AND
CONTRACTORS, MAKE NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE
PROJECT, PROPERTY, BUILDING OR THE PREMISES OR ITS CONDITION. NO WARRANTY
OF MATERIALS, WORKMANSHIP OR APPLIANCES HAS BEEN MADE OR IS EXPRESSED OR
IMPLIED BY THIS LEASE. LANDLORD, ITS OFFICERS, DIRECTORS, AGENTS,
EMPLOYEES, ATTORNEYS AND CONTRACTORS EXPRESSLY DISCLAIM AND TENANT
EXPRESSLY WAIVES ANY WARRANTY OF HABITABILITY, GOOD AND WORKMANLIKE
CONSTRUCTION, SUITABILITY, OF DESIGN OR FITNESS FOR A PARTICULAR PURPOSE
AND EXPRESSLY DISCLAIM AND TENANT EXPRESSLY WAIVES ANY WARRANTY AS TO THE
ENVIRONMENTAL CONDITION OF THE PROJECT, PROPERTY, BUILDING OR PREMISES AND
THE PRESENCE OR CONTAMINATION BY HAZARDOUS MATERIALS. TENANT IS NOT
RELYING ON ANY REPRESENTATIONS BY LANDLORD OR LANDLORD'S OFFICERS,
DIRECTORS, AGENTS, EMPLOYEES, ATTORNEYS AND CONTRACTORS. TENANT EXPRESSLY
WAIVES, TO THE EXTENT ALLOWED BY LAW, ANY CLAIMS UNDER FEDERAL, STATE OR
OTHER LAW THAT TENANT MIGHT OTHERWISE HAVE AGAINST LANDLORD, ITS OFFICERS,
DIRECTORS, AGENTS, EMPLOYEES, ATTORNEYS AND CONTRACTORS RELATING TO THE
CONDITION OF THE PROJECT, PROPERTY, BUILDING OR PREMISES OR THE
IMPROVEMENTS OR PERSONAL PROPERTY LOCATED THEREON OR THE PRESENCE IN OR
CONTAMINATION OF THE PROJECT OR THE PREMISES BY HAZARDOUS MATERIALS.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease in
multiple original counterparts as of the day and year first above written.
LANDLORD:
--------
MONY/BDP Flex I, L.L.C., a Delaware
limited liability corporation
By: Transwestern Investment Company,
as agent
/s/ Xxxxx X. Tausu
---------------------------------------
Name (print): Xxxxx X. Tausu
Title: SVP
ADDRESS:
-------
Transwestern Commercial Services
000 Xxxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Attn: Arapahoe Service Center 2
TENANT:
------
CAVION TECHNOLOGIES, INC., a Colorado
corporation
/s/ Xxxxx X. Xxxxxx
---------------------------------------
Name (print): Xxxxx X. Xxxxxx
Title: President/CEO
ADDRESS:
-------------------------
