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Exhibit 10.32
OFFICE LEASE
Wells Fargo Center
1700 Lincoln Street
Denver, Colorado 80203
FIFTH STREET - DENVER CENTER, LLC,
A DELAWARE LIMITED LIABILITY COMPANY (AS "LANDLORD")
AND
THE MURRAYHILL COMPANY,
A COLORADO CORPORATION (AS "TENANT")
April 1, 2003
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TABLE OF CONTENTS
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BASIC LEASE PROVISIONS
1
STANDARD LEASE PROVISIONS
2
ARTICLE 1 -- PREMISES
2
1.1 LEASE OF PREMISES
2
1.2 ACCEPTANCE OF PREMISES
2
1.3 MEASUREMENT OF THE RENTABLE
AREA OF PREMISES AND THE BUILDING
2
1.4 COMMON AREAS
3
ARTICLE 2 -- TERM
3
2.1 TERM
3
2.2 COMMENCEMENT
3
2.3 EXPANSION RIGHTS
3
ARTICLE 3 -- RENT; LATE CHARGES
4
3.1 BASE RENT; RENT
4
3.2 LATE CHARGE; INTEREST
4
3.3 ADDITIONAL RENT
4
ARTICLE 4 -- ADDITIONAL RENT
4
4.1 PAYMENT OF OPERATING
EXPENSES AND PROPERTY TAXES
4
4.2 DEFINITIONS
5
4.3 CALCULATION METHODS AND
ADJUSTMENTS
7
4.4 PAYMENT PROCEDURE; ESTIMATES
7
4.5 REVIEW OF LANDLORD'S
STATEMENT
8
ARTICLE 5 -- ADDITIONAL TAXES
8
ARTICLE 6 -- SECURITY DEPOSIT
8
ARTICLE 7 -- USE OF PREMISES
9
7.1 TENANT'S PERMITTED USE
9
7.2 COMPLIANCE WITH LAWS AND
OTHER REQUIREMENTS
9
7.3 HAZARDOUS MATERIALS
9
ARTICLE 8 -- UTILITIES AND SERVICES
10
8.1 BUILDING SERVICES
10
8.2 INTERRUPTION OF SERVICES
11
ARTICLE 9 -- MAINTENANCE AND REPAIRS
11
9.1 LANDLORD'S OBLIGATIONS
11
9.2 TENANT'S OBLIGATIONS
12
9.3 LANDLORD'S RIGHTS
12
ARTICLE 10 -- ALTERATIONS, ADDITIONS AND
IMPROVEMENTS
12
10.1 CONDITION OF THE PREMISES
12
10.2 LANDLORD'S CONSENT; CONDITIONS
12
10.3 PERFORMANCE OF ALTERATIONS WORK
12
10.4 LIENS
13
10.5 SURRENDER
13
ARTICLE 11 -- INDEMNIFICATION AND INSURANCE
13
11.1 WAIVER OF LIABILITY AND
INDEMNIFICATION
13
11.2 PROPERTY INSURANCE
13
11.3 LIABILITY INSURANCE
14
11.4 POLICY REQUIREMENTS
14
11.5 WAIVER OF SUBROGATION
14
11.6 FAILURE TO INSURE
15
11.7 MISCELLANEOUS
15
ARTICLE 12 -- DAMAGE OR DESTRUCTION
15
12.1 REPAIR OF THE PREMISES
15
12.2 EXCEPTIONS TO LANDLORD'S
OBLIGATIONS
16
12.3 WAIVER
16
ARTICLE 13 -- CONDEMNATION
16
13.1 TAKING
16
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13.2 RESTORATION OF PREMISES
16
13.3 AWARD
16
13.4 TEMPORARY TAKING
16
13.5 EXCLUSIVE REMEDY
16
ARTICLE 14 -- RELOCATION
16
ARTICLE 15 -- ASSIGNMENT AND SUBLETTING
17
15.1 RESTRICTION
17
15.2 NOTICE TO LANDLORD
17
15.3 LANDLORD'S RECAPTURE RIGHTS
17
15.4 LANDLORD'S CONSENT: STANDARDS
17
15.5 TRANSFER PROFITS
18
15.6 LANDLORD'S COSTS
18
15.7 CONTINUING LIABILITY OF TENANT
18
15.8 NON-WAIVER
18
ARTICLE 16 -- DEFAULT AND REMEDIES
18
16.1 EVENTS OF DEFAULT BY TENANT
18
16.2 LANDLORD'S RIGHT TO TERMINATE UPON
TENANT DEFAULT
19
16.3 LANDLORD'S RIGHT TO CONTINUE LEASE
UPON TENANT DEFAULT
20
16.4 RIGHT OF LANDLORD TO PERFORM
20
16.5 LATE PAYMENTS OF RENT
20
16.6 DEFAULT UNDER OTHER LEASES
20
16.7 SUBLEASES OF TENANT
20
16.8 EFFORTS TO RELET
20
16.9 WAIVER OF RIGHT OF REDEMPTION
21
16.10 NON-WAIVER
21
16.11 WAIVER OF TRIAL BY JURY
21
16.12 CUMULATIVE REMEDIES
21
16.13 DEFAULT BY LANDLORD
21
ARTICLE 17 -- ATTORNEYS'FEES; COSTS OF SUIT
21
17.1 ATTORNEYS' FEES
21
17.2 INDEMNIFICATION
21
ARTICLE 18 -- SUBORDINATION AND ATTORNMENT
21
18.1 SUBORDINATION
21
18.2 ATTORNMENT
22
18.3 MORTGAGE AND GROUND LESSOR
PROTECTION
22
ARTICLE 19 -- QUIET ENJOYMENT
22
ARTICLE 20 -- PARKING
22
ARTICLE 21 -- RULES AND REGULATIONS
23
ARTICLE 22 -- ESTOPPEL CERTIFICATES
23
ARTICLE 23 -- ENTRY BY LANDLORD
23
ARTICLE 24 -- LANDLORD'S LEASE
UNDERTAKINGS; EXCULPATION FROM PERSONAL
LIABILITY; TRANSFER OF LANDLORD'S INTEREST
23
24.1 LANDLORD'S LEASE UNDERTAKINGS
23
24.2 TRANSFER OF LANDLORD'S INTEREST
24
ARTICLE 25 -- HOLDOVER TENANCY
24
ARTICLE 26 -- NOTICES
24
ARTICLE 27 -- BROKERS
24
ARTICLE 28 -- SIGNAGE RIGHTS
24
28.1 PROHIBITED SIGNAGE
24
28.2 TENANT'S SIGNAGE
24
ARTICLE 29 -- FINANCIAL STATEMENTS
25
ARTICLE 30 -- MISCELLANEOUS
25
30.1 ENTIRE AGREEMENT
25
30.2 AMENDMENTS
25
30.3 SUCCESSORS
25
30.4 SALE BY LANDLORD
25
30.5 FORCE MAJEURE
25
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30.6 SURVIVAL OF OBLIGATIONS
25
30.7 LIGHT AND AIR
25
30.8 GOVERNING LAW
25
30.9 PROHIBITION AGAINST RECORDING
25
30.10 SEVERABILITY
25
30.11 CAPTIONS
25
30.12 INTERPRETATION
25
30.13 INDEPENDENT COVENANTS
26
30.14 NUMBER AND GENDER
26
30.15 TIME IS OF THE ESSENCE
26
30.16 JOINT AND SEVERAL LIABILITY
26
30.17 PAYMENT INCENTIVE
26
30.18 NO OFFER TO LEASE
26
30.19 NO COUNTERCLAIM: CHOICE OF
LAWS
26
30.20 RIGHTS RESERVED BY LANDLORD
26
30.21 MODIFICATION OF LEASE
27
30.22 AUTHORITY
27
30.23 TRANSPORTATION MANAGEMENT
27
30.24 THE OTHER IMPROVEMENTS
27
30.25 RENOVATION OF THE PROJECT
AND OTHER IMPROVEMENTS
27
30.26 NO PARTNERSHIP OR JOINT
VENTURE
27
30.27 RIGHT TO LEASE
27
30.28 BUILDING NAME AND SIGNAGE
28
30.29 OTHER OBLIGATIONS
28
30.30 CONFIDENTIALITY
28
EXHIBIT A Premises
EXHIBIT B Notice of Lease Term
Dates
EXHIBIT C Work Letter
EXHIBIT D Rules and Regulations
EXHIBIT E Estoppel Certificate
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OFFICE LEASE
THIS OFFICE
LEASE ("LEASE") is made and entered into by and between FIFTH
STREET - DENVER CENTER, LLC, a Delaware
limited liability company ("LANDLORD")
and Tenant described in paragraph 1 of the
Basic Lease Provisions as of April 1,
2003 (the "EFFECTIVE DATE").
BASIC LEASE PROVISIONS
1. TENANT: THE MURRAYHILL
COMPANY, a Colorado corporation ("TENANT").
2. DESCRIPTION OF
PREMISES/BUILDING/PROJECT:
A. SUITE: 1600
(the Premises are shown on Exhibit A).
B. RENTABLE
AREA: Approximately twelve thousand (12,000) rentable
square feet,
from the Commencement Date up to the day before the second
(2rd)
anniversary of the Commencement Date and thereafter, twenty
three
thousand five
hundred two (23,502) rentable square feet. (Section 1.3)
C. BUILDING: The
building located at 1700 Lincoln Street, Denver,
Colorado
D. PROJECT: That
certain project, with all common areas and
appurtenant
parking facilities, commonly known as "Wells Fargo Center" and
containing
building improvements located at 1700 Lincoln Street, Denver,
Colorado.
3. TERM:
A. TERM: Six (6)
years
B. COMMENCEMENT
DATE: The earlier of August 1, 2003 or the date on
which the
improvement of the Premises is substantially completed
according
to Exhibit C.
(Section 2.2)
4. BASE RENT (Article 3):
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PERIOD
ANNUAL BASE RENT
MONTHLY BASE RENT
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August 1,2003 through July 31,2005
$ 216,960.00
$
18,080.00
August 1,2005 through July 31,2007
$ 436,667.16
$
36,388.93
August 1,2007 through July 31,2009
$ 448,418.16
$
37,368.18
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As soon as possible after Landlord's
delivery of Landlord's Statement described
in Section 4.4 with respect to 2003, the
Base Rent per rentable square foot for
all years during the Term will either be
increased by the amount by which Eight
and 92/100 Dollars ($8.92) exceeds the
Property Taxes and Operating Expenses per
rentable square foot of the Project for
2003, or decreased by the amount by
which such Property Taxes and Operating
Expenses exceed Eight and 92/100 Dollars
($8.92) per rentable square foot, as the
case may be.
5. ADDITIONAL RENT (Article
4):
A. TENANT'S
PERCENTAGE SHARE: 1.005%, from the Commencement Date up
to the day
before the second (2nd) anniversary of the Commencement Date
and
thereafter,
1.969% (Section 4.2)
6. SECURITY DEPOSIT: $99,883.50
(Article 6)
7. PARKING PRIVILEGES: One (1)
for each one thousand two hundred (1,200)
rentable square feet of the Premises.
(Article 20.) If the Premises are enlarged
according to Section 2.3, the Parking
Privileges will increase in that ratio.
8. BROKER(S): Rick Schepis of
Fuller and Company (Article 27)
9. PERMITTED USE: General
office use (Section 7.1).
10. ADDRESSES FOR NOTICES (Article
26):
To:
Tenant
with a copy to:
The Murrayhill Company
1700 Lincoln Street, Suite 1600
Kevin J. Kanouff, Esq.
Denver, Colorado 80203
Dorsey & Whitney LLP
Attn: Mr. Tim Kulik
370 17th Street, Suite 4700
Denver, Colorado 80202
To:
Landlord
with a copy to:
Fifth Street - Denver Center, LLC
c/o CWP Capital Management, LLC
Mark A. Senn, Esq.
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633 West Fifth Street, 72nd Floor
Senn Lewis & Visciano, P.C.
Los Angeles,
California 90071
1801 California Street, Suite 4300
Attn: Asset Manager
Denver, Colorado 80202
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with a
copy to:
CommonWealth Partners Management
Services, LP
1700 Lincoln Street, Suite 2500
Denver, Colorado 80203
Attn: Mr. William Owen
11. ADDRESS FOR PAYMENTS: All payments
payable to Landlord under this
Lease shall be sent to the following
address or to such other address as
Landlord may designate:
Wells Fargo Center, a property of Fifth Street Properties, LLC
File #56572
Los Angeles, California 90074-6572
Tenant may pay only Monthly Base Rent and
Tenant's Percentage Share of Property
Taxes and Operating Expenses by wire
transfer to:
Bank of America
Account Name: Fifth St. Properties LLC - Denver Collection
Account No.: 004790875619
ABA No.: 111000025,
or to such other account as Landlord may
from time to time designate by at least
ten (10) days' prior written notice to
Tenant. Payments of Monthly Base Rent by
wire transfer must be collected at the
receiving bank before the first day of
each calendar month for which it is
due.
12. GUARANTOR: None
This Lease shall
consist of the foregoing Basic Lease Provisions, and the
provisions of the Standard Lease Provisions
(the "STANDARD LEASE PROVISIONS")
(consisting of Sections and Exhibits which
follow) all of which are incorporated
herein by this reference as of the
Effective Date. In the event of any conflict
between the provisions of the Basic Lease
Provisions and the provisions of the
Standard Lease Provisions, the Standard
Lease Provisions shall control. Any
initially capitalized terms used herein and
not otherwise defined shall have the
meanings set forth in the Standard Lease
Provisions.
STANDARD LEASE PROVISIONS
ARTICLE 1 - PREMISES
1.1 LEASE OF PREMISES. Landlord hereby
leases the Premises to Tenant, and
Tenant hereby leases the Premises from
Landlord, upon all of the terms,
covenants and conditions contained in this
Lease.
1.2 ACCEPTANCE OF PREMISES. Tenant
acknowledges that Landlord has not made
any representation or warranty with respect
to the condition of the Premises,
the Building or the Project with respect to
the suitability or fitness of any of
the same for the conduct of Tenant's
Permitted Use, its business or for any
other purpose.
1.3 MEASUREMENT OF THE RENTABLE AREA
OF PREMISES AND THE BUILDING.
(a) For purposes of
this Lease, subject to the provisions of Section
1.3(b), the
parties hereby stipulate that the number of rentable square
feet contained
within the Premises is as set forth in paragraph 2.B. of the
Basic Lease
Provisions.
(b) The "RENTABLE
AREA" or "RENTABLE SQUARE FEET" and "USABLE AREA"
or "USABLE
SQUARE FEET" shall be calculated by Landlord substantially in
accordance with
the Standard Method for Measuring Floor Area in Office
Buildings, ANSI
Z65.1 - 1996 ("BOMA"); provided, however, that in any case
the Rentable
Area of the Building shall include all of, and the Rentable
Area of the Premises shall include
a portion of, the square footage of the
ground floor
common areas located within the Building and the common area
and occupied
space of the portion of the Building or Project dedicated to
the service of
the Building. Landlord reserves the right to modify (i) the
standards
utilized hereunder for the measurement of Rentable Area and
Usable Area (so
long as any such modification is reasonably consistent with
then prevailing
Institutional Owner Practices (defined below)) and (ii)
consistent with
any such modifications of measurement standards, the totals
of Rentable Area
and Usable Area set forth or utilized herein with respect
to the Premises,
the Building or portions thereof. However, the economic
terms set forth
herein (such as Annual Base Rent, Security Deposit and
Tenant's
Percentage Share) shall not be modified.
(c) In consideration
of Tenant's obligation to lease the Expansion
Option Space
pursuant to Section 2.3, Tenant may use the balance of the
sixteenth floor
of the Building on all the terms and
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conditions of
this Lease, except that Tenant will not be obligated to pay
additional Base
Rent or Tenant's Percentage Share of Property Taxes and
Operating
Expenses except as provided in this Lease.
1.4 COMMON AREAS. "COMMON AREAS" shall
mean the lobby, plaza and sidewalk
areas, accessways, Parking Facilities
(defined below), and the area on
individual floors in the Building devoted
to corridors, fire vestibules,
elevators, foyers, lobbies, electric and
telephone closets, restrooms,
mechanical rooms, janitor's closets, and
other similar facilities for the
benefit of all tenants and invitees and
shall also mean those areas of the
Building devoted to mechanical and service
rooms servicing the Building. The
Common Areas shall be subject to the
exclusive management and control of
Landlord, and Tenant shall comply with all
Rules and Regulations (defined in
Article 21) pertaining to the Common Areas.
Landlord shall have the right from
time to time to designate, relocate and
limit the use of particular areas or
portions of the Common Areas. Landlord
shall also have the right to close all or
any portion of the Common Areas as may, in
the sole discretion of Landlord, be
necessary to prevent a dedication thereof
or the accrual of any rights in any
person.
ARTICLE 2 -- TERM
2.1 TERM. Unless earlier terminated in
accordance with the provisions
hereof, the term of this Lease shall be the
period shown in paragraph 3.A. of
the Basic Lease Provisions. For purposes of
this Lease, the term "LEASE YEAR"
shall mean each consecutive twelve (12)
month period during the Lease Term;
provided, however, that the first Lease
Year shall commence on the Commencement
Date and end on the last day of the
eleventh month thereafter and the second and
each succeeding Lease Year shall commence
on the first day of the next calendar
month. At any time during the Lease Term,
Landlord may deliver to Tenant a
notice in the form as set forth in Exhibit
B attached hereto, which Tenant shall
execute and return to Landlord within five
(5) days of receipt thereof. As used
herein, "TERM" shall refer to the term
described in paragraph 3.A. of the Basic
Lease Provisions.
2.2 COMMENCEMENT. The Term shall
commence on the Commencement Date as
defined in paragraph 3.B. of the Basic
Lease Provisions. This Lease shall be a
binding contractual obligation effective
upon execution hereof by Landlord and
Tenant notwithstanding the later
commencement of the Term of this Lease.
2.3 EXPANSION RIGHTS. Tenant shall
have a right of offer (the "RIGHT OF
OFFER") and an expansion option (the
"EXPANSION OPTION") each covering
approximately twelve thousand (12,000)
rentable square feet on either the
fifteenth (15th) or seventeenth (17th)
floor of the Building (the "RIGHT OF
OFFER SPACE" and "EXPANSION OPTION SPACE,"
respectively), the exact size and
location of each of which shall be
determined by Landlord in its sole
discretion.
(a) So long as no
Event of Default exists either at the time that
Tenant exercises
its Right of Offer or Expansion Option, as the case may
be, or at the
time that the Right of Offer Space or Expansion Option Space,
as the case may
be, is added to the Premises (unless such Event of Default
has been waived
by Landlord in its sole discretion), Tenant may elect to
lease all (but
not part) of the Right of Offer Space and the Expansion
Option Space, or
either, upon the terms set forth in this Section 2.3. On
or before
December 15, 2003, Landlord will offer the Right of Offer Space
to Tenant. On or
before December 31, 2003, Tenant shall notify Landlord of
whether Tenant
elects to lease the Right of Offer Space. If Tenant so
elects to lease
the Right of Offer Space, (i) Landlord will deliver the
Right of Offer
Space to Tenant on March 1, 2004 for improvement according
to the relevant
parts of Exhibit C and Article 10, and (ii) Tenant will
have the option
to lease the Expansion Option Space consisting of the
balance of the
floor on which the Right of Offer Space is situated by
notice given to
Landlord on or before December 31, 2004, and (iii) if
Tenant so
exercises its right to lease the Expansion Option Space,
Landlord
will deliver the
Expansion Option Space on March 1, 2005 for improvement
according to the
relevant parts of Exhibit C and Article 10. If Tenant does
not elect to
lease the Right of Offer Space on or before December 31, 2003,
then Tenant will
be irrevocably deemed to have elected to lease the
Expansion Option
Space commencing July 1, 2005 according to this Section,
Landlord will
deliver the Expansion Option Space on March 1, 2005 for
improvement
according to the relevant parts of Exhibit C and Article 10,
and Tenant will
have no remaining Right of Offer or Expansion Option.
(b) The Base Rent for
the Right of Offer Space and Expansion Option
Space (either an
"EXPANSION SPACE") shall be the Base Rent as of the date
such Expansion
Space is delivered to Tenant under this Section, and shall
commence on July
1, 2004 and July 1, 2005, respectively. So long as no
Event of Default
exists, Landlord will provide an allowance of Twenty
Dollars ($20.00)
per rentable square foot of the Expansion Space for costs
incurred by
Tenant in improving the Expansion Space in accordance with this
Lease. The
allowance will be paid within thirty (30) days after Tenant's
delivery to
Landlord of reasonable substantiation of the amounts paid by
Tenant in so
improving the Expansion Space. Upon the delivery of an
Expansion Space
to Tenant, the Expansion Space will be part of the Premises
for all purposes
of this Lease and Tenant's Percentage Share will be
proportionately
adjusted. Tenant may apply up to Ten Dollars ($10.00) per
rentable square
foot of the Premises of the allowance to Base Rent first
accruing after
the Expansion Space is added to the Premises. The expiration
of the Term for
an Expansion Space shall be the same as the expiration of
the term for the
remainder of the Premises.
(c)
If Tenant exercises
the Right of Offer or Expansion Option, as
the case may be,
pursuant to the terms hereof, Tenant shall take the
Expansion Space
added thereto pursuant to the Right of Offer or Expansion
Option in its
condition as of the Effective Date; if Landlord changes that
condition, it
will pay the incremental cost, if any, of demolition of the
Expansion Space
as a result of the change in connection with Tenant's
improvement of
it.
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(d) Landlord shall not
be liable for failure to give possession of an
Expansion Space
by reason of the holding over or retention of possession of
any previous
tenant, tenants or occupants of same, nor shall such failure
impair the
validity of this Lease, nor extend the Term, but the Rent for
such Expansion
Space shall be abated until possession thereof is delivered
to Tenant.
However, Landlord does covenant that it will use reasonable
diligence to
deliver possession of such Expansion Space to Tenant upon the
date
above-described. Additionally, if Tenant reasonably believes
Landlord
is not being
diligent in its efforts to deliver possession of such
Expansion Space
to Tenant, Tenant shall so notify Landlord in writing,
whereupon Tenant
may itself bring such actions or proceedings (which must
meet with
Landlord's reasonable approval) necessary to deliver such
possession to
Tenant, but Tenant shall indemnify and hold harmless Landlord
from any and all
costs (including attorneys' fees or costs of suit),
expenses,
damages or liabilities arising thereby.
(e) The failure by
Tenant to timely give the written notices
above-described
shall constitute Tenant's decision not to exercise the
Right of Offer
or Expansion Option, as the case may be, and Tenant shall be
considered to
have forever given up its rights to the space covered by said
Right of Offer
or Expansion Option, as the case may be.
(f) Tenant may not
assign its Right of Offer or Expansion Option to
sublessees of
the space covered by this Lease, but Tenant may assign the
Right of Offer
or Expansion Option to assignees of this Lease only with
prior written
consent of Landlord, which consent shall not be unreasonably
withheld.
ARTICLE 3 - RENT; LATE CHARGES
3.1 BASE RENT; RENT.
(a) Tenant agrees to
pay during each Lease Year of the Term of this
Lease as Base
Rent ("BASE RENT") for the Premises the sums shown for such
periods in
paragraph 4 of the Basic Lease Provisions.
(b) Except as
expressly provided to the contrary herein, Annual Base
Rent shall be
payable in equal, consecutive, monthly installments, in
advance, without
abatement, deduction or offset, commencing on the
Commencement
Date and continuing on the first day of each calendar month
thereafter
except as provided in this paragraph 3.l(b) with regard to wire
transfers. The first full monthly
installment of Annual Base Rent,
described in
paragraph 4 of the Basic Lease Provisions, shall be payable
upon TENANT'S
EXECUTION OF THIS LEASE. If the Commencement Date is a day
other than the
first day of a calendar month, then the Base Rent for the
Partial Lease
Month (the "PARTIAL LEASE MONTH RENT") shall be calculated on
a per diem basis
determined by dividing the initial Monthly Base Rent shown
in paragraph 4
of the Basic Lease Provisions by the number of days in the
month in which
the Commencement Date occurs and by multiplying such amount
by the number of
remaining days of such month from and including the
Commencement
Date. The Partial Lease Month Rent shall be payable by Tenant
prior to the
date that Tenant takes possession or commences use of the
Premises for any
business purpose (including moving in). Annual Base Rent,
all forms of
Additional Rent (defined below) payable hereunder by Tenant
and all other
amounts, fees, payments or charges payable hereunder by
Tenant shall (i)
each constitute rent payable hereunder (and shall
sometimes
collectively be referred to herein as "RENT"), and (ii) be
payable to
Landlord when due without any prior notice or demand therefor
in
lawful money of
the United States and, except as may be expressly provided
to the contrary
herein, without any abatement, offset or deduction
whatsoever. All
Annual Base Rent that is not paid by wire transfer and all
other Rent shall
be payable to Landlord at the address of Landlord
described in
paragraph 11 of the Basic Lease Provisions or to such other
person or to
such other place as Landlord may from time to time designate
in writing to
Tenant.
(c) No payment by
Tenant or receipt by Landlord of a lesser amount
than the correct
Rent due hereunder shall be deemed to be other than a
payment on
account; nor shall any endorsement or statement on any check or
any letter
accompanying any check or payment be deemed to effect or
evidence 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 in this Lease or at law or in equity provided.
3.2 LATE CHARGE; INTEREST. Tenant
acknowledges that the late payment of
Base Rent or Additional Rent will cause
Landlord to incur administrative costs
and other damages, the exact amount of
which would be impracticable or extremely
difficult to ascertain. Landlord and Tenant
agree that if Landlord does not
receive any such payment on or before the
date five (5) days after the date the
payment is due, Tenant shall pay to
Landlord, as Additional Rent, (a) a late
charge ("LATE CHARGE") equal to five
percent (5%) of the overdue amount to cover
such additional administrative costs, and
(b) interest on all delinquent amounts
at eighteen percent (18%) per annum from
the date due until the date paid.
3.3 ADDITIONAL RENT. For purposes of
this Lease, all amounts (other than
Base Rent) payable by Tenant to Landlord
pursuant to this Lease, whether or not
denominated as such, shall constitute
additional rent ("ADDITIONAL RENT")
hereunder.
ARTICLE 4 -- ADDITIONAL RENT
4.1 PAYMENT OF OPERATING EXPENSES AND
PROPERTY TAXES.
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(a) Subject to the
provisions of this Lease, in addition to paying
Base Rent
pursuant to Article 3 of this Lease, with respect to each
Expense
Year (defined
below) Tenant shall also pay as Additional Rent Tenant's
Percentage Share
(defined below) of Operating Expenses (defined below) for
the Project
allocable hereunder to such Expense Year.
(b) Subject to the
provisions of this Lease, in addition to paying
Base Rent
pursuant to Article 3 of this Lease, with respect to each
Expense
Year Tenant
shall also pay as Additional Rent Tenant's Percentage Share of
the Property
Taxes (defined below) for the Project allocable hereunder to
such Expense
Year.
4.2 DEFINITIONS.
(a) "EXPENSE YEAR"
shall mean each calendar year in which any portion
of the Term of
this Lease falls, through and including the calendar year in
which the Term
of this Lease expires.
(b) "PROPERTY TAXES"
shall mean all real property taxes, assessments,
fees, charges,
or impositions and other similar governmental or
quasi-governmental ad valorem or other charges levied on or
attributable to
the Project or
its ownership, operation or transfer of any and every type,
kind, category
or nature, whether direct or indirect, general or special,
ordinary or
extraordinary and all taxes, assessments, fees, charges or
similar
impositions imposed in lieu or substitution (partially or
totally)
of the same,
including, without limitation, all taxes, assessments, levies,
charges or
impositions (i) on any interest of Landlord or any mortgagee of
Landlord in the
Project, the Building, the Premises or in this Lease, or on
the occupancy or
use of space in the Project or the Premises; (ii) on the
gross or net
rentals or income from the Project, including, without
limitation, any
gross income tax, excise tax, sales tax or gross receipts
tax levied by
any federal, state or local governmental entity with respect
to the receipt
of Rent; (iii) on any transit taxes or charges, business or
license fees or
taxes, annual or periodic license or use fees, park and
school fees,
arts charges, parks charges, housing fund charges; (iv)
imposed for
street, refuse, police, sidewalks, fire protection and similar
services and
maintenance, whether previously provided without charge or for
a different
charge, whether provided by governmental agencies or private
parties, and
whether charged directly or indirectly through a funding
mechanism
designed to enhance or augment benefits and services provided
by
governmental or
quasi-governmental agencies; (v) on any possessory taxes
charged or
levied in lieu of real estate taxes; and (vi) any costs or
expenses
incurred or expended by Landlord in investigating, calculating,
protesting,
appealing or otherwise attempting to reduce or minimize such
taxes. There
shall be excluded from Property Taxes all income taxes,
capital stock,
inheritance, estate, gift, or any other taxes imposed upon
or measured by
Landlord's net income or profits unless the same is
specifically
included within the definition of Property Taxes above or
otherwise shall
be imposed in lieu of real estate taxes or other ad valorem
taxes.
(c) "OPERATING
EXPENSES" shall mean all costs, fees, amounts,
disbursements
and expenses of every kind and nature paid or incurred by or
on behalf of
Landlord with respect to any Expense Year in connection with
the operation,
ownership, maintenance, insurance, restoration, management,
replacement or
repair of the Project in a first class manner, including,
without
limitation, any amounts paid or incurred with respect to:
(i)
Premiums for property, casualty, liability, rent
interruption, earthquake, flood or other types of insurance carried
by
Landlord from time to time, and any deductibles thereunder
actually
paid by Landlord with respect to the Project.
(ii)
Salaries, wages and other amounts paid or payable for
personnel (including, without limitation, the Building manager,
superintendent, Parking Facilities manager, operation and
maintenance
staff, administrative staff, accounting personnel and other
employees
of Landlord) involved in the maintenance and operation of the
Building
or the Project, including contributions and premiums towards
fringe
benefits, unemployment taxes and insurance, social security
taxes,
disability and worker's compensation insurance, pension plan
contributions and similar premiums and contributions which may
be
levied on such salaries, wages, compensation and benefits and
the
total charges of any independent contractors or property
managers
engaged in the operation, repair, care, maintenance and cleaning
of
any portion of the Building or the Project.
(iii)
Cleaning expenses, including, without limitation,
janitorial services, window cleaning, and garbage and refuse
removal.
(iv)
Landscaping and hardscape expenses, including, without
limitation, irrigating, trimming, mowing, fertilizing, seeding,
and
replacing plants, trees and hardscape.
(v)
Subject to the provisions of Section 4.3(d), the cost of
providing fuel, gas, electricity, water, sewer, telephone, steam
and
other utility services.
(vi)
Subject to the provisions of Section 4.2(c)(x) below, the
cost of maintaining, operating, restoring, renovating,
managing,
repairing and replacing components of equipment or machinery,
including, without limitation, heating, refrigeration,
ventilation,
electrical, plumbing, mechanical, elevator, escalator,
sprinklers,
fire/life safety, security and energy management systems,
including
service contracts, maintenance contracts, supplies and parts
with
respect thereto.
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(vii) The
costs of security for, and supervision of, the Project.
(viii)
Rental, supplies and other costs with respect to the
operation of the management office for the Project.
(ix) All
costs and fees for licenses, certificates, permits and
inspections, and the cost incurred in connection with the
implementation of a transportation system management program or
similar program.
(x) The
cost of replacement, repair, acquisition, installation
and modification of (A) carpeting and wallcoverings, ceiling
systems
and fixtures in the Common Areas, and other furnishings in the
Common
Areas, (B) materials, tools, supplies and equipment purchased
by
Landlord which are used in the maintenance, operation and repair
of
the Project, and (C) any other form of improvements, additions,
repairs, or replacements to the Project or the systems, equipment
or
machinery operated or
used in connection with the Project; provided,
however, that with respect to the items described in clauses (A),
(B),
and (C) above which constitute a capital item, addition, repair
or
improvement (collectively "CAPITAL ITEMS") under sound accounting
and
property management principles consistently applied and determined
by
Landlord, in each case the cost of such Capital Items shall be
amortized (with interest at the Interest Rate) over the useful
life
(the "USEFUL LIFE") of such Capital Item, as determined by the
Landlord in accordance with sound accounting and property
management
principles consistently applied or such other period as shall
be
consistent with Institutional Owner Practices.
(xi)
Attorneys', accountants' and consultants' fees and expenses
in connection with the management, operation, administration,
maintenance and repair of the Project, including, but not limited
to,
such expenses that relate to seeking or obtaining reductions in
or
refunds of Property Taxes, or components thereof, or the costs
of
contesting the validity or applicability of any governmental
enactments which may affect Operating Expenses.
(xii) Fees
for the administration and management of the Project
in an amount equal to three percent (3%) of the gross revenues of
the
Project (which shall be grossed by Landlord up to one hundred
percent
(100%) occupancy on an annual basis), without regard to whether
actual
fees so paid are greater or less than such amount.
(xiii)
Sales, use and excise taxes on goods and services purchased
by Landlord for the management, maintenance, administration or
operation of the Building or the Project.
(xiv) Fees
for local civic organizations and dues for
professional trade associations.
(xv)
Payments under any covenants, conditions and restrictions
pertaining to the Project or any easement, license or operating
agreement or similar instrument which affects the Project.
(xvi)
Costs and expenses of investigating, testing, documenting,
monitoring, responding to, abating and remediating Hazardous
Materials
(defined below), other than abatement and remediation costs
with
respect to Hazardous Materials actually known by Landlord (on
the
Effective Date) to require abatement or remediation under
applicable
Environmental Laws (defined below).
(xvii) The
costs of repairing, restoring and maintaining the
Parking Facilities of the Project, including, without limitation,
the
resurfacing, restriping and cleaning of such facilities.
(xviii)
Any costs, fees, amounts, disbursements and expenses which
are generally included in Operating Expenses under Institutional
Owner
Practices.
(d) The following
costs and expenses shall be excluded from Operating
Expenses: (i)
expenses relating to leasing space in the Project (including
tenant
improvements, leasing and brokerage commissions and advertising
expenses); (ii)
legal fees and disbursements incurred for collection of
tenant accounts
or negotiation of leases, or relating to disputes between
Landlord and
other tenants and occupants of the Project; (iii) Capital
Items unless
specifically permitted by Section 4.2(c), parts (i) through
(xviii),
inclusive; (iv) Property Taxes; (v) amounts received by
Landlord
on account of
proceeds of insurance to the extent the proceeds are
reimbursement
for expenses which were previously included in Operating
Expenses; (vi)
except to the extent specifically provided in Section
4.2(c), parts
(i) through (xviii), inclusive, depreciation or payments of
principal and
interest on any mortgages upon the Project; (vii) payments of
ground rent
pursuant to any ground lease covering the Project; (viii)
subject to
Section 4.3(a), the costs of: gas, steam or other fuel;
operation of
elevators and security systems; heating, cooling, air
conditioning and
ventilating; chilled water, hot and cold domestic water,
sewer and other
utilities or any other service work or facility, or level
or amount
thereof, provided to any other tenant or occupant in the
Project
which either (A)
is not required to be supplied or furnished by Landlord to
Tenant under the
provisions of this Lease or (B) is supplied or furnished
to Tenant
pursuant to the terms of this Lease with separate or additional
charge; and (ix)
any cost expressly excluded from Operating Expenses in an
express
provision contained in this Lease.
(e) "TENANT'S
PERCENTAGE SHARE" shall mean the percentage set forth
in paragraph
5.B. of the Basic Lease Provisions; provided, however, that
Landlord
reserves the right from time to time during
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the Term of this
Lease to recalculate Tenant's Percentage Share, in which
case Tenant's
Percentage Share shall be calculated by dividing the number
of square feet
of Rentable Area in the Premises by the number of square
feet of Rentable
Area in the Building, and expressing such quotient in the
form of a
percentage.
4.3 CALCULATION METHODS AND
ADJUSTMENTS.
(a) The variable
components of Operating Expenses ("VARIABLE
EXPENSES") for
all or any portion of any Expense Year during which actual
occupancy of the
Building is less than one hundred percent (100%) of the
Rentable Area of
the Building shall be adjusted by Landlord, as determined
in good faith by
Landlord applying sound accounting and property management
principles (and
the provisions of this Lease) to reflect one hundred
percent (100%)
occupancy of the Rentable Area of the Building during such
period. If during all
or any part of any Expense Year, Landlord does not
provide any
particular item of benefit, work or service (the cost of which
is a Variable
Expense) to portions of the Project due to the fact that such
item of benefit,
work or service is not required or desired by the tenant
of such space,
or such tenant is itself obtaining and providing such item
of benefit, work
or service, or for any other reason, then for purposes of
computing
Variable Expenses for such Expense Year. Operating Expenses
shall
be increased by
an amount equal to the additional Variable Expenses which
would have been
paid or incurred by Landlord during such period if it had
furnished such
item of benefit, work or service to such portions of the
Project.
(b) Subject to the
provisions of this Section 4.3, all calculations,
determinations,
allocations and decisions to be made hereunder with respect
to Operating
Expenses or Property Taxes shall be made in accordance with
the good faith
determination of Landlord applying sound accounting and
property
management principles consistently applied which are consistent
with the
practices of the majority of the institutional owners of
institutional
grade first-class office projects in Denver, Colorado
("INSTITUTIONAL
OWNER PRACTICES"). Landlord shall have the right to
allocate
equitably some or all of Operating Expenses among particular
classes or
groups of tenants in the Project (for example, retail tenants)
to reflect
Landlord's good faith determination that measurably different
amounts or types
of services, work or benefits associated with Operating
Expenses are
being provided to or conferred upon such classes or groups.
Subject to the
provisions of this Section 4.3, from time to time Landlord
shall have the
right to expand or contract the amount, scope, level or
types of
services, work, items or benefits, the cost of which is
included
within Operating
Expenses, so long as Landlord's treatment of the same for
purposes of the
calculation of Operating Expenses is generally consistent
with
Institutional Owner Practices and at all times maintain the
standards
of first-class,
high-rise buildings. Whenever services, benefits or work
are provided to
the Project and to additional projects (where allocation of
the cost thereof
among such projects is required for calculation of
Operating
Expenses hereunder), in allocating the overall cost thereof
(for
all such
projects) to Operating Expenses hereunder, there shall be
excluded
from Operating
Expenses Landlord's good faith determination of the
additional
overall cost comparison allocable to the provision of such
services,
benefits or work to the additional projects. All discounts,
reimbursements,
rebates, refunds, or credits (collectively,
"REIMBURSEMENTS") attributable to Operating Expenses or Property
Taxes
received by
Landlord in a particular year shall be deducted from Operating
Expenses or
Property Taxes in the year the same are received; provided,
however, if such
practice is consistent with Institutional Owner Practices,
Landlord may
treat Reimbursements generally (or under particular
circumstances)
on a different basis. All assessments and premiums of
Operating
Expenses or Property Taxes which can be paid by Landlord in
periodic
installments shall be paid by Landlord in the maximum number of
periodic
installments permitted by Law; provided, however, that if the
then
prevailing
Institutional Owner Practice is to pay such assessments or
premiums on a
different basis, Landlord may utilize such different basis of
payment.
(c) Subject to
applicable Laws, Landlord shall solely determine all
decisions with
respect to the method and manner by which all utility
services shall
be billed and provided in the Project, which determinations
shall be made by
Landlord in good faith and on a basis consistent with
Institutional
Owner Practices.
4.4 PAYMENT PROCEDURE; ESTIMATES. For
each Expense Year, Landlord may
elect to give Tenant written notice of its
estimate of any amounts payable under
Section 4.1 for that Expense Year. On or
before the first day of each calendar
month during such Expense Year, Tenant
shall pay to Landlord one-twelfth
(1/12th) of such estimated amounts;
provided, however, that, not more often than
quarterly, Landlord may, by written notice
to Tenant, revise its estimate for
such Expense Year, and all subsequent
payments under this Section 4.4 by Tenant
for such Expense Year shall be based upon
such revised estimate. Landlord shall
endeavor to deliver to Tenant within one
hundred fifty (150) days after the
close of each Expense Year or as soon
thereafter as is practicable, a statement
of that year's Property Taxes and Operating
Expenses, and Tenant's Percentage
Share of actual Property Taxes and actual
Operating Expenses payable for such
Expense Year pursuant to Section 4.1, as
determined by Landlord (the "LANDLORD'S
STATEMENT") and such Landlord's Statement
shall be binding upon Landlord and
Tenant, except as provided in Section 4.5.
If the amount of Tenant's Percentage
Share of actual Property Taxes and
Operating Expenses for any Expense Year is
more than the estimated payments with
respect thereto made by Tenant, Tenant
shall pay the deficiency to Landlord upon
receipt of Landlord's Statement. If
the amount of Tenant's Percentage Share of
actual Property Taxes and Operating
Expenses for any Expense Year is less than
the estimated payments for such
Expense Year made by Tenant, such excess
payments shall be credited against Rent
next payable by Tenant under this Lease or,
if the Term of this Lease has
expired, such excess shall be paid to
Tenant within thirty (30) days after
delivery of the Landlord's Statement for
the year in which this Lease expired.
No delay in providing any Landlord's
Statement described in this Section 4.4
shall act as a waiver of Landlord's right
to receive payment from Tenant under
Section 4.1 above with respect to Tenant's
Percentage Share of Property Taxes
and Operating Expenses, or either of them,
for the period covered thereby. If
this Lease shall terminate on a day other
than the end of a calendar year, the
amount of Tenant's Percentage Share of
actual Property Taxes and actual
Operating Expenses
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payable under Section 4.1 that is
applicable to the calendar year in which such
termination occurs shall be prorated on the
basis that the number of days from
January 1 of such calendar year to the
termination date bears to 365. The
expiration or early termination of this
Lease shall not affect the obligations
of Landlord and Tenant pursuant to this
Section 4.4 to be performed after such
expiration or early termination.
4.5 REVIEW OF LANDLORD'S STATEMENT.
Provided that no Event of Default then
exists and provided further that Tenant
strictly complies with the provisions of
this Section 4.5, Tenant shall have the
right to conduct a reasonable review of
Landlord's supporting books and records for
any portion of the Property Taxes or
Operating Expenses for a particular Expense
Year covered by Landlord's
Statement, in accordance with the following
procedure:
(a) Landlord will give
Tenant access to the books and records that
substantiate
Landlord's Statement if Tenant makes a written request for
them within
thirty (30) days after delivery of Landlord's Statement. Tenant
shall, within
sixty (60) days after any such Landlord's Statement is
delivered to
Tenant, deliver a written notice (a "DISPUTE NOTICE") to
Landlord
specifying the items described in the Landlord's Statement that
are claimed to
be incorrect, and Tenant shall simultaneously pay to
Landlord all
amounts due from Tenant to Landlord as specified in the
Landlord's
Statement. In no event shall Tenant be entitled to withhold,
deduct, or
offset any monetary obligation of Tenant to Landlord under this
Lease
(including, without limitation, Tenant's obligation to make all
payments of Base
Rent and all payments of Additional Rent pending the
completion of
and regardless of the results of any review of records under
this Section 4.5). The
right of Tenant under this Section 4.5 may only be
exercised once
for each Expense Year covered by any Landlord's Statement,
and if Tenant
fails to deliver a Dispute Notice within the sixty (60) day
period described
above or fails to meet any of the other above conditions
of exercise of
such right, the right of Tenant to review a particular
Landlord's
Statement (and all of Tenant's rights to make any claim
relating
thereto) under
this Section 4.5 shall automatically be deemed waived by
Tenant.
(b) Tenant
acknowledges that Landlord maintains its records for the
Building at
Landlord's manager's corporate offices and Tenant agrees that
any review of
records under this Section 4.5 shall be at the sole expense
of Tenant and
shall be conducted by independent certified public
accountants of
national or regional standing which are not compensated on a
contingency fee
or similar basis relating to the results of such review.
Tenant
acknowledges and agrees that any records of Landlord reviewed
under
this Section 4.5
(and the information contained therein) constitute
confidential
information of Landlord, which Tenant shall not disclose, nor
permit to be
disclosed by Tenant's accountant, to anyone other than the
Tenant's
accountants performing the review and the principals of Tenant
who
receive the
results of the review. The disclosure of such information by
Tenant or any of
Tenant's employees or contractors (including, without
limitation,
Tenant's accountant) to any other person, whether or not caused
by the conduct
of Tenant, shall constitute an Event of Default.
(c) If Landlord
disagrees with Tenant's contention that an error
exists with
respect to Landlord's Statement (and the Operating Expenses and
Real Property
Taxes described therein) in dispute, Landlord shall have the
right to cause
another review of that portion of Landlord's Statement (and
the Operating
Expenses and Real Property Taxes stated therein) to be made
by a firm of
independent certified public accountants of national or
regional
standing selected by Landlord ("LANDLORD'S ACCOUNTANT"). In the
event of a
disagreement between the two accounting firms, they shall
select
a third
accounting firm of national or regional standing and its review
shall be
conclusive on Landlord and Tenant. In the event that the final
results of a
review of a particular Landlord's Statement indicates that
total Operating
Expenses and Property Taxes for the period covered by the
Landlord's
Statement in question have been overstated by more than five
percent (5%),
then Landlord shall pay the cost of the third accounting firm
(if any) and
reimburse Tenant for the reasonable cost of Tenant's
accountant and
the amount of any overpayment by Tenant of estimated
Operating
Expenses and Property Taxes, or either of them, for the period
in
question shall
be credited against Tenant's obligations to pay Additional
Rent next coming
due; in all other cases, Tenant shall be liable for
Landlord's
Accountant's actual fees and expenses, and the amount of any
underpayment
shall be paid by Tenant to Landlord with the next succeeding
installment of
estimated Property Taxes and Operating Expenses.
ARTICLE 5 -- ADDITIONAL TAXES
In addition to
the Base Rent and all other forms of Additional Rent payable
by Tenant hereunder, Tenant shall reimburse
Landlord upon demand as Additional
Rent for any and all taxes, impositions or
similar fees or charges (other than
any of the same actually included by
Landlord in Property Taxes with respect to
the Expense Year in question) payable by or
imposed or assessed upon Landlord or
with respect to (or measured by or
otherwise attributable to the cost or value
of): (a) any fixtures, equipment or other
personal property located in or about
the Premises; (b) any leasehold
improvements made in or to the Premises by or
for Tenant (without regard to ownership of
such improvements) if and to the
extent the original cost, replacement cost
or value thereof exceeds the cost of
Landlord's then effective "BUILDING
STANDARD" tenant improvements, as determined
in good faith by Landlord; (c) the Rent
payable hereunder, including, without
limitation, any gross receipts tax, license
fee or excise tax levied by any
governmental authority; (d) the possession,
leasing, operation, management,
maintenance, alteration, repair, use or
occupancy of any portion of the
Premises; or (e) this transaction or any
document to which Tenant is a party
creating or transferring an interest or an
estate in the Premises.
ARTICLE 6 -- SECURITY DEPOSIT
Upon the execution of this
Lease, Tenant shall deposit with Landlord the
Security Deposit described in paragraph 6
of the Basic Lease Provisions. The
Security Deposit is made by Tenant to
secure the faithful
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performance of all the terms, covenants and
conditions of this Lease to be
performed by Tenant. The Security Deposit
is not an advance payment of Rent or a
measure or limit of Landlord's damages upon
an Event of Default by Tenant. If
Tenant commits an Event of Default with
respect to any provision of this Lease,
Landlord may, but shall not be required to,
use, apply or retain all or any part
of the Security Deposit (a) for the payment
of any Rent or any other sum in
default, (b) for the payment of any other
amount which Landlord may spend or
become obligated to spend by reason of such
default by Tenant, and (c) to
compensate Landlord for any other loss or
damages which Landlord may suffer by
reason of such default by Tenant. If any
portion of the Security Deposit is so
used or applied, Tenant shall, upon demand
therefor by Landlord, deposit with
Landlord cash in an amount sufficient to
restore the Security Deposit to the
amount required to be maintained by Tenant
hereunder. Upon expiration or the
sooner termination of this Lease, provided
that Tenant has performed all of its
obligations hereunder, Landlord shall
return to Tenant the remaining portion of
the Security Deposit no later than thirty
(30) days after the date Landlord
receives possession of the Premises in
accordance with the provisions of this
Lease. The Security Deposit may be
commingled by Landlord with Landlord's other
funds, and no interest shall be paid
thereon. If Landlord transfers its interest
in the Premises, then Landlord may assign
the Security Deposit to the transferee
and thereafter Landlord shall have no
further liability or obligation for the
return of the Security Deposit. Tenant
hereby waives the provisions of any Laws,
whether now or hereafter in effect, or
common law rule, to the contrary, which
restricts the amount or types of claim that
a landlord may make upon a security
deposit or imposes upon a landlord (or its
successors) any obligation with
respect to the handling or return of
security deposits.
ARTICLE 7
-- USE OF PREMISES
7.1 TENANT'S PERMITTED USE. Tenant
shall use the Premises only for
Tenant's Permitted Use as set forth in
paragraph 9 of the Basic Lease Provisions
and shall not use or permit the Premises to
be used for any other purpose.
Tenant shall, at its sole cost and expense,
obtain and maintain in full force
and effect all governmental licenses,
approvals and permits required to allow
Tenant to conduct Tenant's Permitted Use.
Landlord disclaims any warranty that
the Premises are suitable for Tenant's use
and Tenant acknowledges that it has
had a full opportunity to make its own
determination in this regard. In no case
shall Tenant use any portion of the
Premises for (a) offices of any division,
agency or bureau of the United States or
any state or local government or any
foreign government or subdivision thereof,
(b) offices of any licensed health
care professionals for the provision of any
health care services, (c) any
schools or other training facility, (d) any
retail or restaurant uses, (e) any
residential use, or (f) any communications
uses such as broadcasting or radio or
television stations; however, the Premises
may be used for general business
purposes by an occupant providing health
care services or broadcasting from
facilities other than the Premises. Tenant
shall not permit any use of the
Premises or any portion thereof for any
occupancy density which is greater than
the density shown on the Pricing Floor Plan
described on Exhibit C; however, if
Tenant adds an Expansion Space, it may
increase that density during the
improvement of the Expansion Space by the
people who will be occupying it, but
only in accordance with Law.
7.2 COMPLIANCE WITH LAWS AND OTHER
REQUIREMENTS.
(a) Tenant shall
timely take all action required to cause the
Premises to
comply in all respects with all laws, ordinances, building
codes, rules,
regulations, orders and directives of any governmental
authority having
jurisdiction (including, without limitation, any
certificate of
occupancy) now or in the future applicable to the Premises
(collectively,
"LAWS"), including, without limitation, any Law requiring
any form of
improvement or alteration to the Premises.
(b) Tenant shall not
use the Premises, or permit the Premises to be
used, in any
manner, or do or suffer any act in or about the Premises
which: (i)
violates or conflicts with any applicable Law; (ii) causes or
is
reasonably
likely to cause damage to the Project, the Premises or the
Building
systems, including, without limitation, the life safety,
electrical,
heating, ventilation and air conditioning ("HVAC"), plumbing or
sprinkler
systems (collectively, the "BUILDING SYSTEMS") for the Building
or the Project;
(iii) violates a requirement or condition of any policy of
insurance
covering the Project or the Premises, or increases the cost of
such policy;
(iv) constitutes or is reasonably likely to constitute a
nuisance,
annoyance or inconvenience to other tenants or occupants of the
Project or its
equipment, facilities or systems; (v) interferes with, or is
reasonably
likely to interfere with, the transmission or reception of
microwave,
television, radio, telephone, or other communication signals by
antennae or
other facilities located in the Project; or (vi) violates the
Rules and
Regulations. Should any federal, state or local governmental
agency having
jurisdiction with respect to the establishment, regulation or
enforcement of
occupational, health or safety standards for employers,
employees or
tenants impose on Landlord or on Tenant at any time now or in
the future any
requirement or Law relating in any manner to the Premises or
occupancy
thereof, Tenant shall, at its sole cost and expense, comply
promptly (or at
Landlord's election, bear the cost of such compliance as
effected by
Landlord) with such requirement or Law.
7.3 HAZARDOUS MATERIALS. No Hazardous
Materials (defined below) shall be
Handled (defined below) upon, about, in,
above or beneath the Premises or any
portion of the Project by or on behalf of
Tenant, its subtenants or its
assignees, or their respective contractors,
clients, officers, directors,
employees, agents, or invitees
(collectively, a "TENANT PARTY"). Notwithstanding
the foregoing, normal quantities of those
Hazardous Materials customarily used
in the conduct of general administrative
and executive office activities (e.g.,
copier fluids and cleaning supplies) may be
used and stored at the Premises
without Landlord's prior written consent,
but only in compliance with all
applicable Environmental Laws (defined
below), and with the highest prevailing
industry standards. Tenant shall, at its
sole cost and expense, promptly take
all actions (or at Landlord's election,
reimburse Landlord for taking all
actions) required by any Law or necessary
for Landlord to make full economic use
of the Premises or any portion of the
Project which arises in connection with
the Handling (defined below) of
Tenant's
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Hazardous Materials upon, about, above or
beneath the Premises or any portion of
the Project. Such actions shall include,
but not be limited to, the
investigation of the environmental
condition of the Premises or any portion of
the Building, the preparation of any
feasibility studies or reports and the
performance of any cleanup, remedial,
removal or restoration work. Tenant shall
take all actions (or, at Landlord's
election, reimburse Landlord for taking all
actions) necessary to restore the Premises
or any portion of the Building to the
condition existing prior to the
introduction of Tenant's Hazardous Materials,
notwithstanding any less stringent
standards or remediation allowable under
applicable Environmental Laws.
"ENVIRONMENTAL LAWS" means and includes all now
and hereafter existing statutes, laws,
ordinances, codes, regulations, rules,
rulings, orders, decrees, directives,
policies and requirements by any federal,
state or local governmental authority
regulating, relating to, or imposing
liability or standards of conduct
concerning public health and safety or the
environment. "HAZARDOUS MATERIALS" means:
(a) any material or substance: (i)
which is defined or becomes defined as a
"HAZARDOUS SUBSTANCE," "HAZARDOUS
WASTE," "INFECTIOUS WASTE," "CHEMICAL
MIXTURE OR SUBSTANCE," or "AIR POLLUTANT"
under Environmental Laws; (ii) containing
petroleum, crude oil or any fraction
thereof; (iii) containing polychlorinated
biphenyls (PCB's); (iv) which
constitutes asbestos or asbestos-containing
material; (v) which is radioactive;
(vi) which is infectious; or (b) any other
material or substance displaying
toxic, reactive, ignitable or corrosive
characteristics, as all such terms are
used in their broadest sense. "HANDLE,"
"HANDLED," or "HANDLING" shall mean any
installation, handling, generation,
storage, treatment, use, disposal,
discharge, release, manufacture,
refinement, presence, migration, emission,
abatement, removal, transportation, or any
other activity of any type in
connection with or involving Hazardous
Materials.
ARTICLE 8 - UTILITIES AND SERVICES
8.1 BUILDING SERVICES. As long as no
Event of Default exists, Landlord
agrees to furnish or cause to be furnished,
subject to the provisions of this
Lease, as part of Operating Expenses to the
Premises, the following utilities
and services, subject to the conditions and
standards set forth herein:
(a) Non-attended
automatic elevator service.
(b) Subject to all
governmental Laws, rules, regulations and
guidelines
applicable thereto, HVAC to the Premises, which in Landlord's
good faith
judgment, is required for the comfortable use and occupancy of
the Premises
from 7:00 A.M. to 6:00 P.M. Monday through Friday, and 7:00
A.M. to 1:00 PM,
Saturdays (collectively, the "BUSINESS HOURS"), except for
the date of
observation of New Year's Day, President's Day, Independence
Day, Labor Day,
Memorial Day, Thanksgiving Day, and Christmas Day, and at
Landlord's
discretion, other state and nationally recognized holidays
selected by
Landlord which are consistent with Institutional Owner
Practices
(collectively, the "HOLIDAYS"); provided, however that if
Tenant
desires to use
HVAC during hours ("NON-BUSINESS HOURS") other than Business
Hours ("AFTER
HOURS HVAC"), Tenant shall provide Landlord with prior
written notice
(which may be by email or telecopy) given, or oral request
to the Building
lobby attendant made, which at a minimum shall be 24 hours'
written notice
for weekday use and written notice prior to 12 Noon on
Friday for
weekend use, of Tenant's desired After Hours HVAC use and upon
such additional
conditions as shall be determined by Landlord from time to
time and subject
to availability. Tenant shall pay to Landlord Landlord's
then prevailing
charges (the "AFTER HOURS HVAC RATE") for supplying such
After Hours HVAC
(which are Thirty Two and 50/100 Dollars ($32.50) per hour
per half floor
on the Effective Date and shall not be greater than the
prevailing
market rate in comparable buildings) within ten (10) days of
receipt of a
reasonably detailed bill therefor. Tenant shall be responsible
for and shall
pay to Landlord any additional costs (including, without
limitation, the
costs of installation of additional HVAC equipment)
incurred by
Landlord because of the failure of the HVAC system to perform
its function due
to arrangement of partitioning in the Premises or changes
or alterations
thereto or from any use by Tenant of heat-generating
machinery or
equipment other than normal office equipment, including small
photocopying
machines and personal computers not linked to a central
mainframe at the
Premises.
(c) At all reasonable
times, electric current as required for
Building
standard lighting and fractional horsepower office machines and
adequate
electrical wiring and facilities for connection to the lighting
fixtures and
incidental use equipment of Tenant; provided, however, that
notwithstanding
any provision of this Lease to the contrary, (i) the total
connected
electrical load for all of the incidental use equipment located
in the Premises
shall in no case exceed that found in comparable first
class office
buildings in downtown Denver from time to time, with the
electricity so
furnished for incidental use equipment to be at a nominal
one hundred
twenty (120) volts and with no electrical circuit for the
supply of such
equipment to require a current capacity exceeding twenty
(20) amperes,
and (ii) the total connected electrical load for Tenant's
lighting
fixtures within the Premises shall in no case exceed that found
in
comparable first
class office buildings in downtown Denver from time to
time, and the
electricity so furnished for Tenant's lighting to be at a
nominal two
hundred seventy-seven (277) volts. Without Landlord's consent,
Tenant shall not
install, or permit the installation, in the Premises of
any computers,
word processors, electronic data processing equipment or
other type of
equipment or machines which will increase Tenant's use of
electric current
in excess of that which Landlord is obligated to provide
pursuant to this
Section 8.1(c) ("EXCESS ELECTRICAL REQUIREMENTS").
If Tenant shall require or utilize Excess Electrical Requirements
or
electric current
which may disrupt the provision of electrical service to
other tenants in
the Building or the Project, Landlord, at its election (i)
may refuse to
grant its consent or (ii) may condition its consent upon
Tenant's payment
in advance of Landlord's total direct and indirect cost
(including,
without limitation, a reasonable administration fee) of
designing,
installing, maintaining and providing any additional facilities
determined by
Landlord to be required to satisfy such Excess Electrical
Requirements (or
otherwise related to the additional wear on Building
Systems
associated therewith). If Tenant's actual electricity
consumption
for
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any portion of
the Premises, as determined in good faith by Landlord
pursuant to such
measurement method or methods as Landlord shall employ
from time to
time (including, without limitation, the use of submeters or
pulse meters,
electrical surveys and engineer's estimates) exceeds
Landlord's
nondiscriminatory standard for excess electrical consumption
for
any reasonable
calculation period determined by Landlord, Tenant shall pay
to Landlord, as
Additional Rent, the sum of (i) Landlord's actual direct
and indirect costs of supplying
such excess consumption, including, without
limitation, all
taxes thereon, and the cost of additional wear on Building
Systems
resulting from such excess consumption, (ii) all of Landlord's
costs of
monitoring and measuring such excess consumption, and (iii)
Landlord's
reasonable administration fee. If Tenant's increased electrical
requirements
will materially affect the temperature level in the Premises
or in the
Building, Landlord's consent may be conditioned upon Tenant's
payment of all
direct and indirect costs of installation and operation of
any machinery or
equipment necessary to restore the temperature level to
that otherwise
required to be provided by Landlord, including, but not
limited to, the
cost of modifications to the Building Systems and increased
wear and tear on
existing HVAC equipment. Landlord shall not, in any way,
be liable or
responsible to Tenant for any loss or damage or expense which
Tenant may incur
or sustain if, for any reasons beyond Landlord's
reasonable
control, either the quantity or character of electric service
is
changed or is no
longer available or suitable for Tenant's requirements.
Tenant covenants
that at all times its use of electric current shall never
exceed the
capacity of the feeders, risers or electrical installations of
the Building or
the Project.
(d) City water for
drinking and restroom purposes.
(e) Janitorial and
cleaning services conforming to the Landlord's
Project
standards in effect from time to time (which shall be
consistent
with
Institutional Owner Practices), provided that the Premises are
used
exclusively for
office purposes and are kept reasonably in order by Tenant.
Landlord shall
not be required to provide janitorial services for portions
of the Premises
used for preparing or consuming food or beverages, for
storage, as a
mailroom, or for a lavatory (other than the Common Area
lavatory rooms)
other than normal "light" janitorial services such as
emptying of
waste containers, standard vacuuming, mopping and sweeping.
Landlord shall
not be responsible for more extensive lunch room cleaning
such as the
washing of dishware or cleaning any refrigerator located
therein. In all
events, Tenant shall pay to Landlord the cost of removal of
Tenant's refuse
and rubbish, to the extent that the same exceeds the refuse
and rubbish
attendant to normal office usage.
Any amounts which
Tenant is required to pay to Landlord pursuant to
this Section 8.1
shall be payable upon demand by Landlord and shall
constitute
Additional Rent. From time to time during the Term, Landlord
shall have the
right to modify the services provided to Tenant hereunder;
provided such
modified services are consistent with Institutional Owner
Practices.
8.2 INTERRUPTION OF SERVICES. Landlord
shall not be liable for any failure
to furnish, stoppage of, or interruption in
furnishing any of the services or
utilities described in Section 8.1 when
such failure is caused by accident,
breakage, repairs, required maintenance,
strikes, lockouts, labor disputes,
labor disturbances, governmental
regulation, civil disturbances, acts of war,
moratorium or other governmental action, or
any other cause beyond Landlord's
reasonable control, and, in such event,
Tenant shall not be entitled to any
damages nor shall any failure or
interruption abate or suspend Tenant's
obligation to pay Base Rent and Additional
Rent required under this Lease or
constitute or be construed as a
constructive or other eviction of Tenant. In the
event any governmental or
quasi-governmental authority or public utility
promulgates or revises any Law or issues
mandatory controls or voluntary
controls relating to the use or
conservation of energy, water, gas, light or
electricity, the reduction of automobile or
other emissions, or the provision of
any other utility or service, Landlord may
take any reasonably appropriate
action to comply with such Law, mandatory
control or voluntary guideline without
affecting Tenant's obligations hereunder.
Tenant recognizes that any security
services provided by Landlord at the
Project are for the protection of
Landlord's property and under no
circumstances shall Landlord be responsible
for, and Tenant waives any rights with
respect to, providing security or other
protection for Tenant or its employees,
invitees or property in or about the
Premises or the Project. Landlord makes no
representation with respect to the
adequacy or fitness of the Project's HVAC
system to maintain temperatures as may
be required for the operation of any
computer, data processing or other special
equipment.
ARTICLE 9 - MAINTENANCE AND REPAIRS
9.1 LANDLORD'S OBLIGATIONS. Landlord
shall endeavor to keep the Common
Areas of the Building and the Project in a
clean and neat condition. Subject to
Section 9.2 below, Landlord shall make all
necessary repairs, within a
reasonable period following receipt of
notice of the need therefor from Tenant,
to the exterior walls, exterior doors and
windows of the Building, and to public
corridors and other public areas of the
Project not constituting a portion of
any tenant's premises and shall use
commercially reasonable efforts to keep all
Building Systems used by Tenant in common
with other tenants in reasonable
condition and repair, reasonable wear and
tear excepted. Notwithstanding the
foregoing, Tenant shall be solely
responsible for the repair and maintenance of,
and all damage to, the Building or the
Project (or any component thereof)
resulting from the design and operation of
all improvements which are not
Building Standard Installations (described
in the Work Letter) in or serving the
Premises installed at the request of Tenant
(regardless of whether installed by
Landlord, its agents or contractors or
third party contractors). Except as
provided in Article 12, there shall be no
abatement of Rent, nor shall there be
any liability of Landlord, by reason of any
injury to, or damage suffered by
Tenant, including, without limitation, any
inconvenience to, or interference
with, Tenant's business or operations
arising from the making of, or failure to
make, any maintenance or repairs,
alterations or improvements in or to any
portion of the Building. Tenant waives the
right to make repairs at Landlord's
expense under any Laws now or hereafter in
effect. No provision of this Lease
shall be construed as obligating Landlord
to perform any repairs, Alterations or
decorations to the Premises or
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the Project except as otherwise expressly
agreed to be performed by Landlord
pursuant to the provisions of this
Lease.
9.2 TENANT'S OBLIGATIONS. No
representations, except as contained herein
have been made to Tenant respecting the
condition of the Premises, and the
acceptance of possession of the Premises by
Tenant shall be conclusive evidence
as against Tenant that the Premises are now
in tenantable and good condition.
During the Term of this Lease, Tenant
shall, at its sole cost and expense,
maintain the Premises in good order and
repair and in a safe, clean and neat
condition. Tenant shall make all repairs to
the Premises not required to be made
by Landlord under Section 9.1 above
(including, without limitation, all damaged
and broken fixtures and appurtenances) with
replacements of any materials to be
made by use of materials of equal or better
quality. Further, Tenant shall be
responsible for, and upon demand by
Landlord shall promptly reimburse Landlord
for, any damage to any portion of the
Project or the Premises caused by (a)
activities of Tenant or any Tenant Party in
the Building or the Premises; (b)
the performance or existence of any
alterations, additions or improvements made
by Tenant or any Tenant Party in or to the
Premises; (c) the installation, use,
operation or movement of Tenant's property
in or about the Building or the
Premises; or (d) any act or omission by
Tenant or any Tenant Party or any other
person permitted in or invited to the
Premises or the Project by Tenant or any
Tenant Party.
9.3 LANDLORD'S RIGHTS. Landlord and
its contractors shall have the right,
at all reasonable times, to enter upon the
Premises to make any repairs to the
Premises or the Building or the Project
reasonably required or deemed reasonably
necessary by Landlord and to erect such
equipment, including scaffolding, as is
reasonably necessary to effect such
repairs. In the event of any failure of
Tenant to perform any of its obligations
under this Article 9, or under Articles
7, 10, or 11, where such failure remains
uncured for ten (10) days after
delivery by Landlord to Tenant of written
notice of such failure (or in the case
of an emergency, after such oral or written
notice, if any, as may be practical
under the circumstances), Landlord may (but
shall not be obligated to) elect to
perform such obligation of Tenant at
Tenant's sole cost and expense, and in the
event of such performance by Landlord,
Tenant shall pay to Landlord within ten
(10) days of written demand therefor one
hundred ten percent (110%) of
Landlord's actual direct and indirect costs
(including interest, overhead,
general conditions and administration) in
performing such obligations of Tenant.
ARTICLE 10 -- ALTERATIONS, ADDITIONS AND IMPROVEMENTS
10.1 CONDITION
OF THE PREMISES. Landlord has delivered the Premises to
Tenant and Tenant has accepted the Premises
from Landlord in their "as is"
condition. Tenant has had an opportunity to
inspect the Premises in order to
assure their suitability for Tenant's use
and their acceptable condition.
10.2 LANDLORD'S
CONSENT: CONDITIONS. Tenant shall not make or permit to be
made any alterations, additions, or
improvements in or to the Premises
("ALTERATIONS") without first obtaining the
prior written consent of Landlord,
which will not be unreasonably withheld.
Landlord's consent shall be requested
in writing not less than fifteen (15)
business days prior to the scheduled and
actual commencement of any work therein.
All such Alterations (a) shall comply
with all applicable Laws, (b) shall be
compatible (as determined in good faith
by Landlord) with the Building and its
mechanical, electrical, heating,
ventilating, air-conditioning and life
safety systems; (c) shall not interfere
with the use and occupancy of any other
portion of the Building or the Project
by any other tenant or their invitees; (d)
shall not be visible from the
exterior of the Building or from any Common
Areas; and (e) shall not affect the
integrity of the structural portions of the
Building. In addition, Landlord may
impose as a condition to such consent such
additional requirements as Landlord
in its reasonable discreti
