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EXHIBITS 10.23
OFFICE LEASE
BETWEEN
FDC OFFICE II, LLC,
A COLORADO LIMITED LIABILITY COMPANY
(AS LANDLORD)
AND
FACTUAL DATA CORP,
A COLORADO CORPORATION
(AS TENANT)
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Section
Page
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1.
PRINCIPAL
TERMS...............................................................................
1
2. GENERAL
COVENANTS.............................................................................
2
3.
TERM..........................................................................................
2
4.
RENT..........................................................................................
2
5.
COMPLETION OF THE
PREMISES....................................................................
2
6.
OPERATING
EXPENSES............................................................................
3
7.
SERVICES......................................................................................
7
8.
QUIET
ENJOYMENT...............................................................................
7
9.
DEPOSIT.......................................................................................
8
10. CHARACTER
OF
OCCUPANCY........................................................................
8
11.
MAINTENANCE...................................................................................
8
12.
ALTERATIONS AND REPAIRS BY
TENANT.............................................................
8
13. MECHANICS'
LIENS..............................................................................
9
14. SUBLETTING
AND
ASSIGNMENT.....................................................................
9
15. DAMAGE TO
PROPERTY............................................................................
11
16. INDEMNITY
TO
LANDLORD.........................................................................
11
17. SURRENDER
AND
NOTICE..........................................................................
11
18. INSURANCE,
CASUALTY, AND RESTORATION OF
PREMISES..............................................
11
19.
CONDEMNATION..................................................................................
12
20. DEFAULT BY
TENANT.............................................................................
12
21. DEFAULT BY
LANDLORD...........................................................................
15
22.
SUBORDINATION AND
ATTORNMENT..................................................................
15
23. REMOVAL OF
TENANT'S
PROPERTY..................................................................
16
24. HOLDING
OVER: TENANCY
MONTH-TO-MONTH..........................................................
16
25. PAYMENTS
AFTER
TERMINATION....................................................................
16
26. STATEMENT
OF
PERFORMANCE......................................................................
16
27.
MISCELLANEOUS.................................................................................
16
28.
AUTHORITIES FOR ACTION AND
NOTICE.............................................................
18
29.
PARKING.......................................................................................
19
30.
BROKERAGE.....................................................................................
19
31.
COUNTERPARTS..................................................................................
19
32.
EXHIBITS......................................................................................
19
33.
OPTIONS.......................................................................................
19
34. PERMIT
CONTINGENCY............................................................................
20
35.
EXPANSION.....................................................................................
20
36. RIGHT OF
FIRST
REFUSAL........................................................................
20
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LEASE AGREEMENT
THIS LEASE, dated as of April 30, 1999, is by and between FDC
OFFICE
II, LLC, a Colorado limited liability
company ("Landlord"), and FACTUAL DATA
CORP, a Colorado corporation
("Tenant").
W I T N E S S E T H :
1. PRINCIPAL TERMS. Capitalized terms, first appearing in
quotations in
this Section, elsewhere in the Lease or any
Exhibits, are definitions of such
terms as used in the Lease and Exhibits and
shall have the defined meaning
whenever used.
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1.1
"BUILDING":
FDC Office II located in Loveland, CO 80538 in the
Rocky Mountain Village Business Park.
1.2
"PREMISES":
approximately 15,882 rentable square feet
Suite #200
1.3 "INITIAL
TERM":
20 years
Commencement Date":
The first to occur of:
(a) the
date on which Tenant opens the Premises for business to
the public; or (b) 30 days after the Delivery Date.
Expiration Date": The
last day of the month in which
the twentieth anniversary of the day immediately prior
to the Commencement Date occurs.
1.4 "BASE
RENT":
Period
Monthly Base Rent
Months 1-60
$18,383.42*
Months 61-120
$21,140.93
Months 121-180
$24,312.07
Months 181-240
$27,958.88
*See Section 4 of Lease
1.5 OPERATING
EXPENSES:
Pro Rata Share:
50.0%
1.6 "DEPOSIT":
None
1.7 "PERMITTED
USE":
General
Office
1.8
"GUARANTOR":
None
1.9 PARKING:
65 spaces
1.10 LANDLORD'S
NOTICE
5200 Hahns Peak Drive, Suite 130
ADDRESS:
Loveland,
Colorado 80538
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With a copy to:
Isaacson, Rosenbaum, Woods & Levy, P.C.
633 17th Street, Suite 2200
Denver, CO 80202
Attn: Paula J.
Williams, Esq.
1.11 LANDLORD'S TAX
I.D.:
84-1497192
1.12 TENANT'S NOTICE
ADDRESS:
Factual Data Corp.
5200 Hahns Peak Drive, Suite 200
Loveland, Colorado
80538
1.13 TENANT'S TAX
I.D.
___________________________
1.14 [INTENTIONALLY
DELETED]
1.15 COOPERATING
BROKER:
Kast Real Estate Services, Inc.
1.16 ATTACHMENTS:
[check if applicable]
x
Work Letter
x
Exhibit A - The Premises
x
Exhibit B - Real Property
x
Exhibit C - Commencement Certificate
x
Exhibit D - Rules and Regulations
</TABLE>
2. GENERAL COVENANTS. Tenant covenants and agrees to pay Rent
and
perform the obligations hereafter set forth
and in consideration therefor
Landlord leases to Tenant the Premises as
depicted on the attached Exhibit A,
together with a non-exclusive right,
subject to the provisions hereof, to use
plazas, common areas, or other areas on the
real property legally described on
Exhibit B (the "Real Property") designated
by Landlord for the exclusive or
non-exclusive use of the tenants of the
Building ("Common Areas"). The Building,
Real Property, Common Areas, and
appurtenances are hereinafter collectively
sometimes called the "Building
Complex."
3. TERM. The Initial Term of the Lease commences at 12:01 a.m. on
the
Commencement Date and terminates at 12:00
midnight on the Expiration Date (the
Initial Term together with any extensions
thereof is herein referred to as the
"Term.").
4. RENT. Subject to the provisions below, commencing on the
Commencement Date and on the first day of
each month thereafter, Tenant shall
pay Base Rent in the amount stated in
Section 1.4, in advance without notice
(all amounts, including Base Rent, to be
paid by Tenant pursuant to this Lease
as the context requires are sometimes
referred to collectively as "Rent(s)").
Rents shall be paid without set off,
abatement, or diminution, at the office of
Landlord in Loveland, Colorado, or at such
other place as Landlord from time to
time designates in writing. Notwithstanding
the foregoing or the provisions of
Section 1.4 to the contrary, the Base Rent
for the first month shall be abated.
5.
COMPLETION OF THE PREMISES.
5.1 Landlord shall advise Tenant of the earliest date on which
Tenant
may enter the Premises (the "Delivery
Date") for commencement of Tenant's Work.
Landlord agrees that as of the Delivery
Date Tenant may commence Tenant's Work
in the Premises subject to the provisions
of the Work Letter. Commencing on the
Delivery Date, Tenant agrees that all terms
and provisions of this Lease shall
be in
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effect, excluding, however, Tenant's
obligation to pay Base Rent and Tenant's
Pro Rata Share of Operating Expenses which
shall commence on the Commencement
Date as provided in Section 1.3 above.
Provisions regarding completion of the
Premises are set forth in the attached Work
Letter. "Initial Tenant Finish"
means the Premises in its as-is condition
as modified by all work, if any,
performed by Landlord at its expense prior
to the Commencement Date in
accordance with the Work Letter. Except as
provided in the Work Letter, Landlord
has no obligation for the completion or
remodeling of the Premises, and Tenant
accepts the Premises in its "as is"
condition on the Delivery Date. If delivery
is on other than the first day of the
month, then the Commencement Date will be
the first day of the month following the
delivery date but all provisions
hereof, including Tenant's obligation to
pay Rent (prorated for a partial
month), will be in effect as of the
delivery date. The postponement of Tenant's
obligation to pay Rent is in full
settlement of all claims which Tenant may
otherwise have by reason of such delay. If
the Commencement Date is delayed, the
Expiration Date shall be extended so that
the Term will continue for the full
period set forth in Section 1.3. As soon as
the Term commences, Landlord and
Tenant agree to execute a commencement
agreement in the form attached as Exhibit
C, setting forth the exact Commencement
Date and Expiration Date.
5.2 Except as provided in the Work Letter, taking possession of
the
Premises by Tenant on the respective
Delivery Date is conclusive evidence that
the Premises are in the condition agreed
between Landlord and Tenant and
acknowledgment by Tenant of satisfactory
completion of any work which Landlord
has agreed to perform.
6. OPERATING EXPENSES.
6.1 Definitions. The additional terms below have the following
meanings
in this Lease:
(1) "Landlord's Accountants" means that individual or firm
employed
by Landlord from time to time to keep the
books and records for the Building
Complex, and/or to prepare the federal and
state income tax returns for Landlord
with respect to the Building Complex, which
books and records shall be certified
to by a representative of Landlord. All
determinations made hereunder shall be
made by Landlord's Accountants unless
otherwise stated.
(2) "Rentable Area" means approximately 32,194 rentable square
feet
of space. If there is a significant change
in the aggregate Rentable Area as a
result of an addition, partial destruction,
modification to building design, or
similar cause which causes a reduction or
increase in the Rentable Area on a
permanent basis or, if Landlord remeasures
the Building and a change in Rentable
Area occurs, Landlord's Accountants shall
make such adjustments in the
computations as are necessary to provide
for such change.
(3) "Tenant's Pro Rata Share" means the percentage set forth in
Section 1.5, which percentage has been
computed by dividing the total rentable
square footage of the Premises by the
Rentable Area. If Tenant, at any time
during the Term, leases additional space in
the Building or if the Rentable Area
is adjusted, Tenant's Pro Rata Share shall
be recomputed by dividing the total
rentable square footage of space then
leased by Tenant (including any additional
space) by the Rentable Area and the
resulting figure shall become Tenant's Pro
Rata Share.
(4) "Operating Expense Year" means each calendar year during
the
Term, except that the first Operating
Expense Year begins on the Commencement
Date and ends on December 31 of such year
and the last Operating Expense Year
begins on January 1 of the calendar year in
which this Lease expires or is
terminated and ends on the date of such
expiration or termination. If an
Operating Expense Year is less than twelve
(12) months, Operating Expenses for
such year shall be prorated.
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(5) "Operating Expenses" means all operating expenses of any kind
or
nature, paid or incurred by the Landlord,
which are in Landlord's reasonable
judgment necessary, appropriate, or
customarily incurred in connection with the
operation, service and maintenance of the
Building Complex including costs
incurred in fulfillment of Landlord's
services, operation and maintenance
obligations under the terms of this Lease.
Operating Expenses include:
(a) All real property taxes and assessments levied against the
Building Complex by any governmental or quasi-governmental
authority,
including taxes, assessments, surcharges, or service or other fees
of a
nature not presently in effect which are hereafter levied on
the
Building Complex as a result of the use, ownership or operation of
the
Building Complex or for any other reason, whether in lieu of or
in
addition to, any current real estate taxes and assessments.
However,
any taxes which are levied on the rent of the Building Complex will
be
determined as if the Building Complex were Landlord's only real
property. In no event do taxes and assessments include any federal
or
state income taxes levied or assessed on Landlord. Expenses for
tax
consultants to contest taxes or assessments are also included
as
Operating Expenses (all of the foregoing are collectively referred
to
herein as "Taxes"). Taxes also include special assessments,
license
taxes, business license fees, business license taxes, commercial
rental
taxes, levies,
charges, penalties or taxes, imposed by any authority
against the Premises, Building Complex or any legal or
equitable
interest of Landlord. Special assessments are deemed payable in
such
number of installments permitted by law, whether or not actually
so
paid, and include any applicable interest on such installments.
Taxes
(other than special assessments) are computed on an accrual basis
based
on the year in which they are levied, even though not paid until
the
following Operating Expense Year;
(b) Costs of supplies, including costs of revamping and
replacing ballasts in all Building standard tenant lighting;
(c) Costs of energy for the Building Complex, including costs
of propane, butane, natural gas steam, electricity, solar energy
and
fuel oils, coal or any other energy sources;
(d) Costs of water and sanitary and storm drainage services;
(e) Costs of security services;
(f) Costs of general maintenance, repairs, and replacements
including costs under HVAC and other mechanical maintenance
contracts;
and repairs and replacements of equipment used in maintenance
and
repair work;
(g) Costs of maintenance, repair and replacement of
landscaping;
(h) Insurance premiums for the Building Complex, including
all-risk or multi-peril coverage, together with loss of rent
endorsement; the part of any claim paid under the deductible
portion of
any insurance policy carried by Landlord; public liability
insurance;
and any other insurance carried by Landlord on any component parts
of
the Building Complex;
(i) All labor costs, including wages, costs of worker's
compensation insurance, payroll taxes, fringe benefits,
including
pension, profit-sharing and health, and legal fees and other
costs
incurred in resolving any labor dispute;
(j) Professional building management fees, costs and expenses,
including costs of office space and storage space required by
management for performance of its services
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(said building management may, at Landlord's option, be
performed
either by a third party or Landlord's affiliated property
management
company);
(k) Legal,
accounting, inspection, and other consulting fees
(including fees for consultants for services designed to produce
a
reduction in Operating Expenses or improve the operation,
maintenance
or state of repair of the Building Complex);
(l) Costs of capital improvements and structural repairs and
replacements to the Building Complex to conform to changes
subsequent
to the date of issuance of the shell and core certificate of
occupancy
for the Building in any Applicable Laws hereinafter defined
(herein
"Required Capital Improvements"); and the costs of any capital
improvements and structural repairs and replacements designed
primarily
to reduce Operating Expenses (herein "Cost Savings
Improvements").
Expenditures for Required Capital Improvements and Cost Savings
Improvements will be amortized at a market rate of interest over
the
useful life of such capital improvement (as determined by
Landlord's
Accountants); however, the amortized amount of any Cost Savings
Improvement in any year will be equal to the estimated
resulting
reduction in Operating Expenses;
(m) Costs incurred for Landlord's Accountants including costs
of any experts and consultants engaged to assist in making the
computations; and
(n) All dues, assessments, impositions and charges payable to
associations;
"Operating Expenses" do not include:
(i) Costs of work, including painting and decorating,
which Landlord performs for any tenant other than work of a kind
and
scope which Landlord is obligated to furnish to all tenants
whose
leases contain a rental adjustment provision similar to this
one;
(ii) Costs of repairs or other work occasioned by fire,
windstorm or other insured casualty to the extent of insurance
proceeds received;
(iii) Leasing commissions, advertising expenses, and
other costs incurred in leasing space in the Building;
(iv) Costs of repairs or rebuilding necessitated by
condemnation;
(v) Interest on borrowed money or debt amortization,
except as specifically set forth above;
(vi) Depreciation on the Building Complex; or
(vii) To the extent paid directly by the Tenant, as
hereinafter provided, electrical costs for the Premises and
janitorial services for the Premises.
If any lease entered into by Landlord with
any tenant in the Building provides
for a separate basis of computation for any
Operating Expenses with respect to
its leased premises, Landlord's Accountants
may modify the computation of Base
Operating Expenses, Rentable Area, and
Operating Expenses for a particular
Operating Expense Year to eliminate or
modify any expenses which are paid for in
whole or in part by such tenant. If the
Rentable Area is not fully occupied
during any particular Operating Expense
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Year, Landlord's Accountants may adjust
those Operating Expenses which are
affected by occupancy for the particular
Operating Expense Year to reflect 100%
occupancy. Furthermore, in making any
computations contemplated hereby,
Landlord's Accountants may make such other
modifications to the computations as
are required in their judgment to achieve
the intention of the parties hereto.
6.2 Estimated Payments. During each Operating Expense Year
beginning
with the first month of the first Operating
Expense Year and continuing each
month thereafter throughout the Term,
Tenant shall pay Landlord, at the same
time as Base Rent is paid, an amount equal
to 1/12 of Landlord's estimate of
Tenant's Pro Rata Share of any projected
increases in Operating Expenses for the
particular Operating Expense Year in excess
of Base Operating Expenses
("Estimated Payment").
6.3 Annual Adjustments.
(1) Following the end of each Operating Expense Year, Landlord
shall
submit to Tenant a statement setting forth
the exact amount of Tenant's Pro Rata
Share of the Operating Expenses for the
Operating Expense Year just completed.
Beginning with the statement for the second
Operating Expense Year, each
statement shall set forth the difference,
if any, between Tenant's actual Pro
Rata Share for the Operating Expense Year
just completed and the estimated
amount for such Operating Expense Year.
Each statement shall also set forth the
projected increase, if any, in Operating
Expenses for the new Operating Expense
Year and the corresponding increase or
decrease in Tenant's monthly Rent for
such new Operating Expense Year above or
below the Rent paid by Tenant for the
immediately preceding Operating Expense
Year.
(2) To the extent that Tenant's Pro Rata Share of Operating
Expenses
for the period covered by a statement is
different from the Estimated Payment
during the Operating Expense Year just
completed, Tenant shall pay Landlord the
difference within 30 days following receipt
by Tenant of the statement or
receive a credit against the next due Rent,
as the case may be. Until Tenant
receives a statement, Tenant's Estimated
Payment for the new Operating Expense
Year shall continue to be paid at the prior
Estimated Payment, but Tenant shall
commence payment of Rent based on the new
Estimated Payment beginning on the
first day of the month following the month
in which Tenant receives the
statement. Tenant shall also pay Landlord
or deduct from the Rent, as the case
may be, on the date required for the first
payment, as adjusted, the difference,
if any, between the Estimated Payment for
the new Operating Expense Year set
forth in the statement and the Estimated
Payment actually paid during the new
Operating Expense Year. If, during any
Operating Expense Year, there is a change
in the information on which Tenant is then
making its Estimated Payments so that
the prior estimate is no longer accurate,
Landlord may revise the estimate and
there shall be such adjustments made in the
monthly Rent on the first day of the
month following notice to Tenant as shall
be necessary by either increasing or
decreasing, as the case may be, the amount
of monthly Rent then being paid by
Tenant for the balance of the Operating
Expense Year.
6.4 Miscellaneous. In no event will any decrease in Rent pursuant
to
any provision hereof result in a reduction
of Rent below the Base Rent. Delay by
Landlord in submitting any statement for
any Operating Expense Year does not
affect the provisions of this Section or
constitute a waiver of Landlord's
rights for such Operating Expense Year or
any subsequent Operating Expense
Years.
6.5 Dispute. If Tenant disputes an adjustment submitted by Landlord
or
a proposed increase or decrease in the
Estimated Payment, Tenant shall give
Landlord notice of such dispute within 30
days after Tenant's receipt of the
adjustment. If Tenant does not give
Landlord timely notice, Tenant waives its
right to dispute the particular adjustment.
If Tenant timely objects, Tenant may
engage its own certified public accountants
("Tenant's Accountants") to verify
the accuracy of the statement complained of
or the reasonableness of the
estimated increase or decrease. If Tenant's
Accountants determine that an
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error has been made, Landlord's Accountants
and Tenant's Accountants shall
endeavor to agree upon the matter, failing
which such matter shall be submitted
to an independent certified public
accountant selected by Landlord, with
Tenant's reasonable approval, for a
determination which will be conclusive and
binding upon Landlord and Tenant. All costs
incurred by Tenant for Tenant's
Accountants shall be paid for by Tenant
unless Tenant's Accountants disclose an
error, acknowledged by Landlord's
Accountants (or found to have occurred through
the above independent determination), of
more than 25% in the computation of the
total amount of Operating Expenses, in
which event Landlord shall pay the
reasonable costs incurred by Tenant to
obtain such audit. Notwithstanding the
pendency of any dispute, Tenant shall
continue to pay Landlord the amount of the
Estimated Payment or adjustment determined
by Landlord's Accountants until the
adjustment has been determined to be
incorrect. If it is determined that any
portion of the Operating Expenses were not
properly chargeable to Tenant, then
Landlord shall promptly credit or refund
the appropriate sum to Tenant.
7. SERVICES.
7.1 Subject to the provisions below, Landlord agrees, in
accordance
with standards determined by Landlord from
time to time for the Building: (1) to
furnish running water at those points of
supply for general use of tenants of
the Building; (2) to furnish to interior
Common Areas heated or cooled air (as
applicable), electrical current, janitorial
services, and maintenance; (3) to
furnish heated or cooled air to the
Premises for standard office use provided
the recommendations of Landlord's engineer
regarding occupancy and use of the
Premises are complied with by Tenant; (4)
to provide, during Ordinary Business
Hours, the general use of passenger
elevators for ingress and egress to and from
the Premises (at least one such elevator
shall be available at all times except
in the case of emergencies or repair);
(items (1) through (4) are collectively
called "Services"). These services are to
be provided twenty-four hours a day,
seven days a week.
7.2 The Premises shall be separately metered and Tenant shall
obtain
all electricity for the Premises directly
from the public utility company
furnishing the same. Tenant shall pay all
utility deposits, fees and monthly
service charges for electricity services
for the Premises. Tenant shall also pay
the cost of replacing light bulbs and/or
tubes and ballast used in all lighting
in the Premises other than that provided by
Landlord to all tenants of the
Building.
7.3 Landlord may discontinue, reduce, or curtail Services
(either
temporarily or permanently) when necessary
due to accident, repairs,
alterations, strikes, lockouts, Applicable
Laws, or any other happening beyond
Landlord's reasonable control. Landlord is
not liable for damages to Tenant or
any other party as a result of any
interruption, reduction, or discontinuance of
Services (either temporary or permanent)
nor shall the occurrence of any such
event be construed as an eviction of
Tenant, cause or permit an abatement,
reduction or setoff of Rent, or operate to
release Tenant from Tenant's
obligations.
7.4 Tenant shall promptly notify Landlord of any accidents or
defects
in the Building of which Tenant becomes
aware, including defects in pipes,
electric wiring, and HVAC equipment, and of
any condition which may cause injury
or damage to the Building or any person or
property therein.
7.5 As Tenant requires its own janitorial services, Tenant
shall
separately contract and pay for such
services with any company approved by
Landlord, in its reasonable discretion and
accordingly, Landlord shall not be
required to provide any janitorial services
to the Premises.
8. QUIET ENJOYMENT. So long as an Event of Default has not
occurred,
Tenant is entitled to the quiet enjoyment
and peaceful possession of the
Premises subject to the provisions of this
Lease.
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9. DEPOSIT. [Intentionally Omitted]
10. CHARACTER OF OCCUPANCY. Tenant shall occupy the Premises for
the
Permitted Use and for no other purpose, and
use it in a careful, safe, and
proper manner and pay on demand for any
damage to the Premises caused by misuse
or abuse by Tenant, Tenant's agents or
employees, or any other person entering
upon the Premises under express or implied
invitation of Tenant (collectively,
"Tenant's Agents"). Tenant, at Tenant's
expense, shall comply with all
applicable federal, state, city,
quasi-governmental and utility provider laws,
codes, rules, and regulations now or
hereafter in effect ("Applicable Laws")
which impose any duty upon Landlord or
Tenant with respect to the occupation or
alteration of the Premises. Tenant shall
not commit or permit waste or any
nuisance on or in the Premises. Tenant
agrees not to store, keep, use, sell,
dispose of or offer for sale in, upon or
from the Premises any article or
substance prohibited by any insurance
policy covering the Building Complex nor
shall Tenant keep, store, produce or
dispose of on, in or from the Premises or
the Building Complex any substance which
may be deemed an infectious waste or
hazardous substance under any Applicable
Laws, except customary office and
cleaning supplies.
11. MAINTENANCE. ALTERATIONS AND REENTRY BY LANDLORD.
11.1 Landlord will (i) make repairs and replacements to HVAC,
mechanical, life safety and electrical
systems in the Premises (to the extent
such systems are Building standard) deemed
necessary by Landlord for normal
operations of the Building Complex; and
(ii) provide upkeep, maintenance, and
repairs to all Common Areas. Except as
provided in this Section or otherwise
expressly required in this Lease, Landlord
is not required to make improvements
or repairs to the Premises during the
Term.
11.2 Landlord or Landlord's agents may at any time enter the
Premises
for examination and inspection, or to
perform, if Landlord elects, any
obligations of Tenant which Tenant fails to
perform or such cleaning,
maintenance, repairs, replacements,
additions, or alterations as Landlord deems
necessary for the safety, improvement, or
preservation of the Premises or other
portions of the Building Complex or as
required by Applicable Laws. Landlord or
Landlord's agents may also show the
Premises to prospective tenants, purchasers
and Mortgagees. Any such reentry does not
constitute an eviction or entitle
Tenant to abatement of Rent. Landlord may
make such alterations or changes in
other portions of the Building Complex as
Landlord desires so long as such
alterations and changes do not unreasonably
interfere with Tenant's occupancy of
the Premises. Landlord may use the Common
Areas and one or more entrances to the
Building Complex as may be necessary in
Landlord's judgment to complete such
work.
12. ALTERATIONS AND REPAIRS BY TENANT.
12.1 Tenant shall not make any alterations to the Premises during
the
Term, including installation of equipment
or machinery which requires
modifications to existing electrical
outlets or increases Tenant's usage of
electricity beyond building design
standards (collectively "Alterations")
without in each instance first obtaining
the written consent of Landlord.
Landlord's consent or approval of the
plans, specifications and working drawings
for any Alterations shall not constitute
any warranty or representation by
Landlord (and shall not impose any
liability on Landlord) as to their
completeness, design sufficiency, or
compliance with Applicable Laws. Tenant
shall at its cost: pay all engineering and
design costs incurred by Landlord as
to all Alterations, obtain all governmental
permits and approvals required, and
cause all Alterations to be completed in
compliance with Applicable Laws and
requirements of Landlord's insurance. All
such work relating to Alterations
shall be performed in a good and
workmanlike manner, using new materials and
equipment at least, equal in quality to the
Initial Tenant Finish. All
Alterations, repair and maintenance work
performed by Tenant shall be done at
Tenant's expense by Landlord's employees
or, with Landlord's prior consent and
subject to any conditions
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imposed by Landlord, by other persons
requested by Tenant; however, if such work
is not performed by Landlord's employees,
Tenant shall pay Landlord a
supervisory fee upon receipt of an invoice.
If Landlord authorizes such persons
to perform work, Tenant shall deliver to
Landlord prior to commencement
certificates issued by insurance companies
qualified to do business in the State
of Colorado, evidencing that worker's
compensation, public liability insurance,
and property damage insurance (in amounts,
with companies and on forms
satisfactory to Landlord) are in force and
maintained by all contractors and
subcontractors engaged to perform such
work. All liability policies shall name
Landlord, Building Manager, and Mortgagee
as additional insureds. Each
certificate shall provide that the
insurance may not be cancelled or modified
without 10 days' prior written notice to
Landlord and Mortgagee. Landlord also
has the right to post notices in the
Premises in locations designated by
Landlord stating that Landlord is not
responsible for payment for such work and
containing such other information as
Landlord deems necessary. All such work
shall be performed in a manner which does
not unreasonably interfere with
Landlord or other tenants of the Building,
or impose additional expense upon
Landlord in the operation of the Building
Complex.
12.2 Tenant shall keep the Premises in as good order, condition,
and
repair and in an orderly state, as on the
Commencement Date, loss by fire or
other casualty or ordinary wear
excepted.
12.3 All Alterations, including partitions, paneling, carpeting,
drapes
or other window coverings, and light
fixtures (but not including movable office
furniture not attached to the Building),
are deemed a part of the real estate
and the property of Landlord and remain
upon and be surrendered with the
Premises at the end of the Term, whether by
lapse of time or otherwise, unless
Landlord notifies Tenant no later than 15
days prior to the end of the Term that
it elects to have Tenant remove all or part
of such Alterations, and in such
event, Tenant shall at Tenant's expense
promptly remove the Alterations
specified and restore the Premises to its
prior condition, reasonable wear and
tear excepted.
13. MECHANICS' LIENS. Tenant shall pay for all work done on the
Premises by Tenant or at its request (other
than the Total Construction Costs)
of a character which may result in liens on
Landlord's or Tenant's interest and
Tenant will keep the Premises free of all
mechanics' liens, and other liens on
account of such work. Tenant indemnifies,
defends, and saves Landlord harmless
from all liability, loss, damage, or
expenses, including attorneys' fees, on
account of any claims of laborers,
materialmen or others for work performed or
for materials or supplies furnished to
Tenant or persons claiming under Tenant.
If any lien is recorded against the
Premises or Building or any suit affecting
title thereto is commenced as a result of
such work, or supplying of materials,
Tenant shall cause such lien to be removed
of record within 5 days after notice
from Landlord. If Tenant desires to contest
any claim, Tenant must furnish
Landlord adequate security of at least 150%
of the amount of the claim, plus
estimated costs and interest and, if a
final judgment establishing the validity
of any lien is entered, Tenant shall
immediately pay and satisfy the same. If
Tenant fails to proceed as aforesaid,
Landlord may pay such amount and any
costs, and the amount paid, together with
reasonable attorneys' fees incurred,
shall be immediately due Landlord upon
notice.
14. SUBLETTING AND ASSIGNMENT.
14.1 Tenant, as well as any other party that has acquired an
interest
in this Lease by virtue of a sublease or
assignment, shall not sublet any part
of the Premises nor assign or otherwise
transfer this Lease or any interest
herein (sometimes referred to as
"Transfer," and the subtenant or assignee may
be referred to as "Transferee") without the
consent of Landlord first being
obtained, which consent will not be
unreasonably withheld provided that: (1)
Tenant complies with the provisions of
Section 14.4; (2) Landlord declines to
exercise its rights under Section 14.3; (3)
the Transferee is engaged in a
business and the portion of the Premises
will be used in a manner which is in
keeping with the then standards of the
Building and does not conflict with any
exclusive use rights granted to any other
tenant of the
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Building Complex; (4) the Transferee has
reasonable financial worth in light of
the responsibilities involved; (5) Tenant
is not in default at the time it makes
its request; (6) the Transferee is not a
governmental or quasi-governmental
agency; (7) the Transferee is not a tenant
or currently negotiating a lease with
Landlord in any Building owned by Landlord
in the Loveland - Ft. Collins area
(including the Building Complex); and (8)
the rent to be paid by the Transferee
is not less than the Rent paid by Tenant
for such space.
14.2 Following any Transfer in accordance with this Section 14,
Landlord may, after default by Tenant,
collect rent from the Transferee or
occupant and apply the net amount collected
to the Rent, but no Transfer or
collection will be deemed an acceptance of
the Transferee or occupant as Tenant
or release Tenant from its obligations.
Consent to a Transfer shall not relieve
Tenant from obtaining Landlord's consent to
any other Transfer. Notwithstanding
Landlord's consent to a Transfer, Tenant
shall continue to be primarily liable
for its obligations. If Tenant collects any
rent or other amounts from a
Transferee in excess of the Rent for any
monthly period, Tenant shall pay
Landlord the excess monthly, as and when
received.
14.3 Notwithstanding the above, if Tenant requests Landlord's
consent
to sublet 25% or more of the Premises,
Landlord may refuse to grant such consent
in its sole discretion and terminate this
Lease as to the portion of the
Premises with respect to which such consent
was requested; provided, however, if
Landlord does not consent and elects to
terminate the Lease as to such portion,
Tenant may within 15 days after notice from
Landlord to this effect withdraw
Tenant's request for consent. If such
termination occurs, it shall be effective
on the date designated in a notice from
Landlord and shall not be more than 30
days following such notice.
14.4 Tenant must notify Landlord at least 90 days prior to the
desired
date of the Transfer ("Tenant's Notice").
Tenant's Notice shall describe the
portion of the Premises to be transferred
and the terms and conditions. Landlord
has, without obligation, 60 days following
receipt of Tenant's Notice to sublet
the space on Tenant's behalf or to exercise
its rights pursuant to Section 14.3
if Tenant's Notice discloses that 25% or
more of the Premises is involved. If
the space covered by Tenant's Notice is
subleased by Landlord, rent and other
sums due from the subtenant will be paid to
Tenant directly and Landlord has no
responsibility for the performance by such
subtenant of its obligations under
its sublease with Tenant. If Landlord is
unwilling or unable to locate a
subtenant (and, if applicable, declines to
exercise its rights under Section
14.3), Landlord will notify Tenant not
later than 60 days after receipt of
Tenant's Notice and Tenant shall be free to
sublet the specified portion of the
Premises to any third party on terms
substantially identical to those described
in Tenant's Notice, subject to Landlord's
consent as set forth above. If Tenant
does not sublet such portion of the
Premises within 60 days following Landlord's
notice to Tenant, Tenant must reoffer the
Premises to Landlord in accordance
with the provisions hereof prior to
subleasing to a third party.
14.5 All documents utilized by Tenant to evidence a Transfer
are
subject to approval by Landlord. Tenant
shall pay Landlord's expenses, including
reasonable attorneys' fees, of determining
whether to consent and in reviewing
and approving the documents. Tenant shall
provide Landlord with such information
as Landlord reasonably requests regarding a
proposed subtenant, including
financial information.
14.6 If a trustee or debtor in possession in bankruptcy is entitled
to
assume control over Tenant's rights under
this Lease and assigns such rights to
any third party notwithstanding the
provisions hereof, the rent to be paid by
such party shall be increased to the
current Base R
